(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "The law of landlord and tenant, by Herbert Thorndike Tiffany"

QJorn^U ICavu i>rl|00l ICibtaty 



Cornell University Library 
KF 590.T56 

V.I 



The law of landlord and tenant, by Herber 




3 1924 018 801 138 




|l Cornell University 
J Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924018801138 



THE LAW 



OF 



Landlord and Tenant 



BY 

HERBERT THORNDIKE TIFFANY 

AUTHOR OT "THE LAW OF REAt PROPEHTYi" LECTURER ON REAL PROPERTY IN 
THE UNIVERSITY OP MARYLAND 



IN TWO VOLUMES 



Vol. I 



ST. PAUL 

TOE KEEFE-DAViDSOSN CO. 

rtjiD 



COPYRIGHT, 1910 

BY 

HERBERT THOBNDIKE TIFFANY 



WEBB FUBI/lSHiNO OO. PRBBS; ST. PAUI,, MINN. 



PREFACE. 



This work represents an attempt not only to state the decisions 
on the law of Landlord and Tenant, but also to discuss the various 
phases of the subject from the standpoint of principle. This 
latter has necessarily involved a frequent expression of my own 
opinion, and occasional criticism of positions adopted by courts of 
high standing. I submit my views in no presumptuous spirit, 
and only hope that their espi;essibn, accompanied by a statement 
of the grounds on which they are based,>may occasionally be sug- 
gestive and helpful, even though not convincing. 

References to the state statutes bearing on the subject wiU be 
found in the notes. In inserting these references I have, in the 
case of each state, made use of the latest compilation of statutes 
to which I had access at the time, and have not attempted to 
search the volumes of session laws subsequently published. Con- 
sequently, they do not present the law, as it exists in some juris- 
dictions, with absolute exactitude. My object in inserting these 
references is, indeed, not so much to relieve members of the bar 
of the trouble of investigating the statutes for themselves, as 
to show the tendencies of legislation, and to give aid in the un- 
derstanding of decisions which have little or no meaning apart 
from the enactments on which they are based. 

H. T. T. 

Baltimore, Md., February, 1910. 



TABLE OF CONTENTS 



CHAPTER I. 

THE NATURE OF THE RELATION. 

1. The doctrine of tenure. 

2. "Landlord"' and "tenant." 

^2. The possessory rights of the tenant. 

a. The tenant has the possession. 

b. Entry by landlord during tenancy. 

(1) Is ordinarily tortious. 

(2) Is permissible for certain purposes. 

(3) Under express stipulations. 

4. The tenant's possession is not adverse to the landlord. 

5. The tenant is not the landlord's agent. 

6. Trespasser distinguished from tenant. 

7. Licensee distinguished from tenant. 

a. The nature of a license. 

b. Application of the distinction. 

c. License to take minerals. 

8. Lodger distinguished from tenant. 

9. Servant distinguished from tenant. 
10. "Cropper" distinguished from tenant. 



CHAPTER II. 

THE CLASSES OP TENANCIES. 

§ 11. Freehold tenancies. 

a. Tenancy in fee simple. 

b. Tenancy for life. 
12. Tenancy for years. 

a. The nature of the tenancy. 

b. The commencement of the term. 

(1) May be subsequent to lease. 

(2) Requirement of certainty. 



vi TABLE OF CONTENTS. 

(3) Ascertainment of day of commencement. 

(a) Commencement on past day. 

(b) Lease "from the date." 

(c) Impossible date for commencement. 

(d) Day of commencement not named. 

(e) In case of oral demise. 

(f) Commenicement on termination of prior 

lease. 

c. The duration of the term. 

(1) Statutory restrictions. 

(2) Requirement of certainty. 

(a) Lease must show duration. 

(b) Tenancy expiring only on contingency. 

(c) Lease for uncertain number of years. 

(3) Ascertainment of day of expiration. 

(a) General rule of computation. 

(b) Effect of custom. 

(c) Statutory provisions. 

(d) Inconsistent limitations. 

(e) Oral evidence. 

(f) Lease covering separate tracts. 

d. Contingent expiration — Special limitation. 

e. Option in the lessor to terminate. 

(1) Particular stipulations. 

(2) Theory of operation. 

(3) In case of sale. 

(4) Notice to lessee. 

(5) Compensation to lessee. 

f. Option in the lessee to teiminate. 

g. The destruction of the term. 

(1) General considerations. 

(2) Merger. 

(a) The general doctrine. 

(b) Quantum of the reversionary estate. 

(c) Estates held in different rights. 

(d) No merger if estate intervenes. 

(e) In case of interesse termini. 

(f) On transfer under judicial process or decree. 

(g) Effect of contract to convey, 
(h) Partial merger. 

(i) Merger as regards third persons. 

— (3) Surrender. 

— (4) Forfeiture. 
— (5) Eviction. 

(6) Taking under power of eminent domain. 

(7) Bankruptcy. 

(8) Destruction of or injury to premises by unforeseen 

casualty. 



TABLE OF CONTENTS. vii 

(9) Untenantable condition of premises. 

(10) Expiration of the lessor's estate. 

(11) Destruction of the lessor's estate. 

(12) War and military occupation. 

(13) Death. 

(14) Dissolution of corporation tenant. 
§ 13. Tenancy at will. 

a. When the tenancy arises. 

(1) Lease at will of lessee. 

(2) Lease at will of lessor. 

(3) Permissive possession. 

(4) Lease not naming duration of tenancy. 

(5) Tacit acquiescence in another's possession. 

(6) Statutory provisions. 

b. Termination of the tenancy. 

(1) By the landlord. 

(2) By the tenant. 

(3) By death of party. 
"- (4) By transfer. 

— (a) By the landlord, 

(b) By the tenant. 

(5) By special limitation. 

(6) Tenant's rights on termination, 

c. Nature of the tenant's interest. 
14. Periodic tenancies. 

a. General considerations. 

b. When a periodic tenancy arises. 

(1) Under express limitation. 

(2) By inference on general letting. 

(a) From payment of periodic rent. 

(b) From reservation of periodic rent. 

(c) Not from general letting alone. 

c. Quarterly, monthly, and weekly tenancies. 

(1) Apart from statute. 

(2) Under statutes. 

d. Transfer of interest. 

e. Mode of termination. 
, 16. Tenancy at sufferance. 

a. The common-law conception. 

b. Modern conceptions. 

c Bights and liabilities of tenant. 



CHAPTER in. 

THE CREATION OF THE RELATION— THE LEASE OR DEMISE. 

§ 16. The nature of a lease or demise. 

17. Tenancy "by Implication." 

18. Evidence of creation of tke relation , 



Vlii TABLE OF CONTENTS. 

§ 19. Attornment. 

a. Double meaning of term. 

b. Attornment by tenant to stranger. 

(1) Is usually invalid. 

(2) Cases excepted in the statutes; 

(3) Attornment under compulsion. 

(4) Validity as against tenant. 

c. Attornment equivalent to acceptance of lease. 

d. Acts showing attornment. 

20. Lease providing for division of crops — Cropping contract distin- 

guished. 

21. The parties to a lease — Personal capacity. 

a. Married women. 

(1) As lessors. 

(a) At common law. 

(b) In equity. 

(c) Under statutes. 

(d) Recovery of rent. 

(2) As lessees. 

b. Infants. 

(1) As lessors. 

(2) As lessees. 

c. Persons non compos mentis. 

(1) As lessors. 

(2) As lessees. 

d. Corporations. 

(1) Power to make or take lease. 

(2) Effect of ultra vires lease, 

22. The parties to a lease — Official capacity. 

a. Trustees. 

b. Executors and administrators. 

(1) In absence of express authority. 

(2) Express powers. 

(3) Statutory powers. 

c. Guardians. 

(1) Of infants. 

(2) Of lunatics. 

d. Receivers. 

23. Lease to two or more persons. 

24. What may be the subject of a lease. 

a. Corporeal and incorporeal things. 

b. Personal chattels. 

c. Part, of building. 

25. Necessity of writing — Statute of frauds. 

a. The English statute. 

b. The state staitutes. 



TABLE OF CONTENTS. IX 

c. "Leases" within the statutes. 

d. Short time leases. 

,^ e. Sufficiency of yriting. 

f. Right to assert the statute. 

g. Effect of noncompliance with the statute. 

(1) Resulting tenancy at will or periodic tenancy. 

(2) Effect of stipulations as to terms of holding. 

(3) Lease not valid for part of term. 

(4) Lessee's liability for rent or for use and occupation. 

(5) Part performance. 

26. The form and parts of an instrument of lease. 

a. General considerations. 
, b. Words of demise. 

c. Description of premises. 

(1) Requirement of certainty. 

(2) Scope and effect. 

d. Exceptions and reservations. 

27. Signing of the instrument. 

28. Sealing of the instrument. 
'29. Attestation of the instrument. 

30. Acknowledgment of the instrument. 

31. Delivery of the instrument. 

32. Acceptance of the instrument. 

33. Recording of the instrument. 

34. Lease made by agent. 

a. Agent's power to make lease. 

b. Form of authorization. 

c. Ratification. 

d. Form and execution of lease. 

35. Lease made on Sunday. 

36. Construction of the instrument. 

37. Necessity of entry — Interesse termini. 

38. Fraud in creation of the relation. 

a. Fraud on part of lessee. 

b. Fraud on part of lessor. 

39. Mistake in creation of the relation. 

40. Lease for illegal purpose. 



CHAPTER IV. 

THE RELATION OF TENANCY IN CONNECTION WITH OTHER 

RELATION. 

S 41. General considerations. 

42. Trustee and cestui que trust. 

43. Vendor and vendee. 

a. Vendee let into possession. 

b. Express stipulation for tenancy. 



X TABLE OP CONTENTS. 

c. Tenancy on vendee's default. 

d. Tenant becoming vendee. 
§ 44. Grantor and grantee. 

45. Mortgagor and mortgagee. 

a. Mortgagor in possession as tenant. 

b. Mortgagee in possession as tenant. 

c. Attornment clause. 

d. Mortgage relation not exclusive of tenancy. 

46. Purchaser at execution sale and former owner of land. 

47. Purchaser at foreclosure sale and former owner of land. 

48. Master and servant. 



CHAPTER V. 

COVENANTS AND OTHER CONTRACTS. 

§ 49. General considerations. 

50. Express and implied covenants. 

51. Dependent and independent covenants. 

52. Joint and several covenants. 

53. Execution of instrument containing covenant. 

a. Execution by lessor. 

b. Execution by lessee. 

c. Execution in duplicate. 

54. Invalidity of lease. 

55. Effect of death. 

a. Of covenantor. 

b. Of covenantee. 

56. Covenants with agent. 

a. Under seal. 

b. Not under seal. 

c. With unauthorized agent. 

57. Covenants by agent. 

a. Under seal. 

b. Not under seal. 

,— 58. Construction of covenants. 

a. General rules. 

b. Aider by oral evidence. 

59. Discharge of liability. 

60. Remedy for breach of covenant. 

61. Oral contracts in connection with written lease. 



CHAPTER VI. 

EXECUTORY CONTRACT FOR DBASE. 

§ 62. Contract for lease distinguished from lease. 

63. Ascertainment of character of transaction. 

64. Completeness of agreement. 

65. Talcing of possession by proposed lessee. 



TABLE OP CONTENTS. xiii 

— c. Persons whose acta may constitute breach. 

(1) Lessor acting for himself or through others. 

(2) Persons claiming "under" lessor. 

(3) Persons claiming under paramount title. 

(4) Sovereign authority. 
y^ d. Acts constituting breach. 

(1) Necessity of eviction. 

(2) Acts on adjoining premises. 

(3) Assertion of paramount title. 

(4) Wrongful acts. 

(5) Acts prior to lease. 

(6) Exclusion from possession. 

(7) Miscellaneous classes of acts. 

e. Persons entitled to the benefit of the covenant. 

f. Persons bound by the covenant. 

g. Damages recoverable for breach. 
-*■ § 80. Covenant of power to demise. 



CHAPTER IX. 

THE LESSOR'S OBLIGATION TO GIVE POSSESSION. 

81. Theory of the obligation to give possession. 

82. Exclusion by one having paramount title. 

83. Exclusion by stranger without right. 

84. Exclusion by lessor. 

85. Measure of damages. 



CHAPTER X. 

PHYSICAL CONDITIONS— REPAIRS AND . IMPROVEMENTS. 
I. Landlord's OBLio.'i.TioNs Towabds Tenant. 

A. As to Premises Leased. 

i 86. Conditions existing at time of demise. 

a. Ordinarily no obligation. 

b. Contract as to existing conditions. 

c. Representations as to conditions. 

d. Concealed defects or dangers. 

e. Lease of furnished house or apartment, 

f. Contract by lessor to improve or put in repair. 

87. Conditions arising after demise. 

a. Ordinarily no obligation. 

b. Conditions arising before commencement of term. 

c. Statutory provisions. 



xiv TABLE OF CONTENTS. 

d. Contract by landlord to repair or to pay for repairs. 

(1) Evidence of the contract. 

(2) Oral contract. 

(3) Consideration to support the contract. 

(4) Nature of the contract. 

(5) Degree and mode of repair. 

(6) Notice of the need of repairs and diligence 

in repairing. 

(7) Making of repairs by tenant. 

(8) Effect of breach on liability for rent. 

(9) Damages for breach. 

(10) Injuries to tenant's person or property on 

premises. 

e. Contract by landlord to improve or put in repair. 

(1) General considerations. 

(2) Inference from contract to keep in repair. 

(3) Cohslderation to support the contract. 

(4) Nature of the contract. 

(5) Character of improvements or repairs. 

(6) Time of making improvements or repairs. 

(7) Waiver of performance. 

"(8) Making of repairs or improvements by 
tenant. 

(9) Effect of breach on liability for rent. 

(10) Damages for breach. 

f. Conditions arising from the making of repairs or 

improvements by landlord. 

(1) Repairs or Improvements properly made. 

(2) Repairs or improvements without authority. 

(3) Negligence of landlord in doing the work. 

(4) Negligence of independent contractor. 
— - g. Total or partial destruction of premises. 

h. Repairs and improvements required by public au- 
thorities. 
B. As to Adjoining Parts, Places and Premises. 
- — ' § 88. Parts of building not open to tenant. 
'^- 89. Places open to use by tenant. 

a. Common approaches. 

b. Places other than approaches. 

c. No liability apart from negligence. 

d. Conditions existing at the time of demise. 
__,^,i«»e. Obligation to light approaches. 

f. Ice and snow on approaches. 

g. Negligence of independent contractor. 
- h. Contributory negligence of tenant. 

i. Improper user by tenant. 
j. Places not used in common. 



TABLE OP CONTENTS. XV 

|^°*§ 90. Adjoining buildings and grounds. 

C. As to Appliances. 

'§ 91. Appliances under landlord's control. 

'~^ 92. Appliances not under landlord's control. 

93. Liabilities apart from negligence. 

94. Contributory negligence of tenant. 
—85. Effect on liability for rent. 

II. LAiniLORD's Obligations Towards Thied Persons. 

A. To Persons on Premises Leased. 

§ 96. Conditions existing at time of demise. 

a. Ordinarily no obligation. 

b. Concealed defects and dangers. 

c. Premises of public or quasi public nature. 
97. Conditions arising after demise. 

~" a. Ordinarily no obligation. 

b. Negligent acts. 

c. Contract by lessor to repair. 

B. To Persons in Places or Using Appliances Under the Landlord's 

Control. 
§ 98. Persons in places under landlord's control. 
99. Persons using appliances under landlord's control. 
100. Statutory obligations. 

C. To Persons Owning or Using Neighboring Property or Highway, 
i 101. General rule of liability. 

102. Theory of liability. 

103. Applications of rule. 

a. Dangerous conditions in highway. 

b. Fall of building or part thereof. 

c. Fall of snow or ice. 

d. Escape of water or fllth. 

e. Interference with water rights. 

f. Injuries to other tenants. 

104. Liability of transferee of reversion. 

105. Effect of renewal of lease. 

106. Periodic tenancy. 

107. Effect of contract as to condition or repairs. 

108. Conditions in connection with property not leased. 

III. Tenant's Obligations Towards Landlord. 

§ 109. To refrain from waste. 

a. What acts constitute waste. 

(1) General considerations. 

(2) Alteration in character of lana. 

(3) Diminution in value of land. 

(4) Removal of earth and minerals. 

(5) Destruction of trees and timber. 

(6) Estovers. 



XVI TABLE OF CONTENTS. 

(7) Alteration or removal of buildings or other 

fixtures. 

(8) Erection of building or other structure. 

(9) Improper user of building. 

(10) Equitable waste. 

(11) Effect of express stipulations. 

b. Remedies for waste. 

(1) Action for damages. 

(2) Injunction against waste. 

(3) Persons entitled to sue. 

(4) Persons liable. 

(5) Time of suit. 

(6) Measure of damages. 

(7) Forfeiture. 

c. Right to the proceeds of waste. 
§ 110. Injuries by third persons. 

^.J^ 111. Injury or destruction by fire. 

. \^ 112. Accidental injuries. 

• 113. Obligation to repair — Permissive waste. 

114. Stipulations against alterations or erections. 

115. Contract to put in repair or for specific repairs. 

116. Contract to keep in repair. 

a. Degree and mode of repair. 

b. Particular causes of injury. 

c. Parts of premises to be repaired. 

d. Obligation to rebuild on destruction. 

e. Conditions precedent. 

f. Accrual and continuance of liability. 

g. Specific enforcement of contract, 
h. Damages for breach. 

i. Rights and liabilities on assignment. 

117. Contract to make alterations or improvements. 

118. Contract as to condition at end of term. 

a. Particular causes of injury. 

b. Character of condition required. 

c. Parts of premises-«within contract. 

d. Accrual of liability. 

e. Extinction of liability. 

f. Effect of assignment. 

g. Measure ot damages. 

119. Agricultural land. 

a. Mode of cultivation. 

(1) Implied obligation. 

(2) Express obligation. 

b. Removal of hay and straw. 
e. Removal of manure. 



TABLE OP CONTENTS. XVll 



IV. Tenant's Obligations Towards Thied Persons. 
§ 120. To persons on the premises. 
121. To persons not on the premises. 



CHAPTER XI. 

MODE OP UTILIZATION OP PREMISES BY TENANT. 

122. In absence of express covenant. 

123. Express covenants. 

a. General considerations. 

b. Covenant against any trade. 

c. Covenant against particular trade. 

d. Covenant against offensive trade. 

e. Covenant to use premises for specified purpose only. 

f. Covenant against annoyance or nuisance. 

g. Covenant as to liquor business. 
h. Covenant to occupy personally. 

i. Covenant as to taking supplies from lessor. 
j. Persons affected by covenant. 
k. Waiver of covenant. 
1. Remedies for breach. 

124. User resulting in nuisance. 



CHAPTER XII. 

EASEMENTS AND ANALOGOUS RIGHTS. 

125. Easements existing at time of lease. 

126. Express grant or agreement. 

127. "Appurtenances." 

128. Implied grant of easement. 

129. Reservation of easement. 

130. Acquisition or grant by tenant. 

131. Restrictive covenants. 

132. Rights of access and approach. 

133. Light. 

134. Water rights. 

135. Use of adjoining premises. 

136. Furnishing of power. 

137. Furnishing of heat. 

138. Signs and other advertising devices. 



CHAPTER XIII. 

TAXES AND INSURANCE. 

139. Taxes usually payable by landlord. 

140. Effect of exemption of landlord. 

141. Tax on improvements made after demise. 

142. Indemnification of tenant paying tax. 



xviii TABLE OF CONTENTS. 

§ 143. Contract by lessee to pay taxes. 

a. Language evidencing contract. 

b. Payment as rent. 

c. Taxes within the contract. 

(1) Taxes levied after demise. 

(2) Tax laws enacted after demise. 

(3) invalid taxes. 

(4) Special assessments. 

(5) Miscellaneous cases. 

d. Apportionment of tax. 

e. Effect of exemption. 

f. Availability of contract to taxing power. 

g. Transfer of leasehold or reversion, 
h. Termination of liability. 

I. Time of payment. 

j. Accrual of right of action. 

k. Damages for breach. 

144. Water rates. 

145. Insurance. 

a. In absence of contract. 
■ b. Contract to insure. 



CHAPTER XIV. 

TRANSFER OF THE REVERSION. 
§ 146. Voluntary transfer. 

a. General considerations. 

b. Transfer of "lease." 

c. Execution of conveyance. 

d. Subsequent lease by landlord. 

e. Subsequent mortgage by landlord. 

f. Attornment. 

147. Transfer by operation of law. 

148. Transferor's rights and liabilities. 

149. Transferee's rights and liabilities. 

a. By reason of privity of estate. 

b. By reason of privity of contract. 

(1) Statutory provisions. 

(2) Covenants which run with the land. 

(3) Covenants which do not run with the land. 

(4) Necessity of mention of assigns. 

(5) Demise of incorporeal thing. 

(6) Covenants relating to personal chattels. 

(7) Leases not under seal. 

(8) Title of lessor. 

(9) Breaches previous to transfer. 

(10) Mode of transfer. 

(11) Transfer of partial Interest. 

(12) Release by transferor. 



TABLE OF CONTENTS. xix 

CHAPTER XV. 

TRANSFER OF THE LEASEHOLD. 

150. Voluntary transfer and transfer by operation of law. 

151. Assignment and sublease distinguished."^ 

152. Restrictions on assignment and subletting 

a. Freedom of alienation in absence of restriction. 

b. Restrictions strictly construed. 

c. Restrictions applicable only to transfer of legal title. 

d. Application of restrictions to alienation of part interest. 

e. Restrictions not applicable to license or lodging agreement. 

f. Restrictions not applicable to transfer by operation of law. 

g. Effect of restriction as against executor or administrator, 
h. Lessor's consent to alienation. 

i. Restriction as covenant running with the land, 
j. Effect of breach of stipulation against alienation. 

(1) Covenants and conditions. 

(2) Validity of alienation. 

(3) Waiver of breach. 

(4) Damages for breach, 
k. Injunction against breach. 

1. The rule in Dumpor's case, 
m. Stipulation against parting with possession, 
n. Statutory restrictions. 
'153. Assignment presumed from possession. 

154. Requisites of assignment and of sublease. 

155. Assignment by way of mortgage. 

156. Contract to assign. 

157. Liabilities of assignor. 

a. To landlord. 

(1) Based on privity of estate. 

(2) Based on privity of contract. 

b. To assignee. 

158. Liabilities of assignee, 
a. To landlord. 

(1) Based on privity of estate. 

(2) Based on privity of contract. 

(a) At common law and by statute. 

(b) Stipulations not under seal. 

(c) Breaches of covenant before assignment. 

(d) Necessity of legal assignment. 

(e) Assignee's entry unnecessary. 

(f) Mortgagee of leasehold. 

(g) Assignee by operation of law. 

(h) Executor or administrator as assignee. 

(i) Heirs and legatees. 

(j) Trustees in bankruptcy. 



XX TABLE OF CONTENTS. 



(k) Assignees for creditors. 
(1) Receivers as assignees, 
(m) Partial assignment. 
(n) Reassignment. 

(aa) Ordinarily terminates liability. 

(bb) Covenants assumed by assignee. 

(cc) Transfer of possession. 

(dd) Breacbes prior to reassignment. 



b. To assignor. 

159. Rights of assignor. 

160. Rights of assignee. 

161. Liabilities of sublessor. 

a. To landlord. 

b. To sublessee. 

162. Liabilities of sublessee. 

163. Rights of sublessor. 

164. Rights of sublessee. 



CHAPTER XVI. 

RENT. 



165. The nature of rent. 

166. Future rent not present debt. 

167. Classes of rent. 

168. What may be reserved as rent. 

169. Payments which are not properly rent. 

a. Sums payable under lease of Incorporeal thing. 

b. Sums payable for enjoyment of license. 

c. Sums payable under bailment of chattels. 

d. Sums payable under lease but not for use of the land. 

e. Sums payable for furnishing of power. 

f. Sums payable on sale of land. 

g. Cash bonus or premium paid by lessee. 
h. Taxes paid by lessee. 

170. The reservation of rent. 

171. Covenants for the payment of rent. 

a. Express covenants. 

b. Implied covenants. 

172. Time at which rent is due. 

a. Usually at end of rent period. 

b. Specification of rent days. 

c. Ascertainment with reference to calendar year. 

d. At end of term. 

e. Rent payable in advance. 

f. Option as to time of payment. 

g. AcceleratiOQ of rent. 



TABLE OF CONTENTS. XXI 

h. Time of day for payment, 

i. Crop rent. 

j. Rent falling due on holiday. 
§ 173. Amount of the rent. 

a. Must be certain or capable of ascertainment. 

b. May be fluctuating. 

c. Construction of reservation as to amount. 

d. Determination by appraisement. 

e. Additional or penal rent. 

f. Change of amount by subsequent agreement. 

(1) Reduction of rent. 

(2) Increase of rent. 

g. Reduction apart from agreement, 
h. Oral evidence as to amount of rent. 

174. Interest on rent. 

175. Apportionment as to amount. 

a. General considerations. 

b. On severance of reversion. 

c. On severance of leasehold. 

d. On partial extinction or suspension of rent. 

e. In action on covenant for rent. 

f. Of rent charge. 

176. Apportionment as to time. 

a. Generally not allowable. 

b. Statutory provisions for apportionment. 

c. Express stipulations for apportionment. 

177. Payment of rent. 

a. Presumptions. 

b. Giving note, bill, or bond for amount. 

c. Payment before rent due. 

d. Payment to person not entitled. 

e. Payment by discharge of landlord's obligations. 

f. Payment in commodities or labor. 

g. Payment by means of repairs. 

h. Excusing payment of rent by way of gift. 
1. Application of payments on rent. 
j. Pleading payment. 

178. Tender of rent. 

a. Effect of tender. 

b. Time of tender. 

c. Place of tender. 

d. Person to whom tender to be made. 

e. Tender in landlord's absence. 

f. Tender must be unconditional. 

179. Recovery of money paid as rent. 

180. Persons entitled to the rent. 

a. Lessors. 



XXU TABLE OF CONTENTS. 

b. On transfer of the reversion. 

(1) Rent ordinarily passes. 

(2) Effect of partial transfer. 

(3) Lease of land and chattels. 

(4) Notice of transfer. 

(5) Rent already due. 

(6) Change of title on rent day. 

c. Severance of rent from reversion. 

(1) Retention of rent on transfer of reversion. 

(2) Transfer of rent without reversion. 

(3) Rights of subsequent transferee of reversion. 

(4) Rights of transferee of rent notes. 

d. Mortgagors and mortgagees. 

e. Purchasers at judicial or execution sale. 

f. Trustees in bankruptcy. 

g. On death of person entitled. 

h. Persons not in privity with lessor. 
§ 181. Persons liable for the rent. 

f..^ a. Lessees. 

'— b. Assignees of the leasehold. 

c. Executors and administrators. 

. — d. Subtenants. 

— e. Principals and agents. 

f. Sureties and guarantors. 

(1) Nature of contract. 

(2) Form and validity of contract. 

(3) Evidence of relation. 

(4) Expiration of liability. 

(5) Discharge of liability. 

(6) Assignment of right of action. 

(7) Remedies. 

182. Defenses available to tenant — Suspension or extinguishment ol 

rent. 
,-— a. Exclusion of lessee from possession. 

^ (1) By one having paramount title. 
^ (2) By stranger without right. 
^ (3) By lessor. 
"~ b. Failure of lessee to take possession. 

c. Invalidity of lease. 
■-• d. Defect in lessor's title. 

— e. Eviction of tenant. 

(1) By landlord. 

(a) Total eviction. 

(b) Partial eviction. 

(2) By paramount title. 

(a) Total eviction. 

(b) Partial eviction. 



TABLE OF CONTENTS. XXIU 

— t Merger, 
g. Surrender. 

h. Abandonment by tenant. 
i. Release. 

j. Forfeiture of leasehold Interest, 
k. Taking under eminent domain. 
1. Discharge in bankruptcy. 
m. Destruction of or injury to premises by unforeseen casualty. 

(1) Destruction of building on land leased. 

(2) Destruction of entire premises. 

(3) Destruction of building before commencement of 

term. 

(4) Change of possession after destruction. 

(5) Flooding or inundation of premises. 

(6) Express stipulations extinguishing or suspending 

rent. 

(a) General considerations. 

(b) Character of injury. 

(c) Cause of injury. 

(d) Effect as terminating tenancy. 

(e) Reviral of liability for rent. 

(f) Possession pending restoration. 

(g) Rent payable in advance. 

(7) Stipulations as to repair and restoration. 

(8) Statutes relieving from liability for rent. 

(a) The provisions of the statutes. 

(b) Injuries caused by tenant. 

(c) Extent of relief from rent. 

( d ) Exclusion of statute by stipulations of lease. 

(e) Premises made "untenantable." 

(f) Relinquishment of possession by tenant. 

(g) Termination of tenancy, 
n. Untenantable condition of premises. 

(1) At common lavs'. 

(2) Under statutes. 

(3) Specific conditions. 

o. Unfitness of premises for particular purpose. 

p. Lack of repair. 

q. Making of repairs. 

r. Breach of covenant or other contract by landlord. 

(1) Dependent and Independent covenants. 

(2) Contract to make repairs or improvements. 

(3) Contract to furnish heat, power, or other facilities. 

(4) Miscellaneous contracts and covenants, 
s. War and military occupation. 

t. Particular stipulations as to rent. 



XXIV 



TABLE OP CONTENTS. 



§ 183. Right to payment of rent as against levy under execution. 

a. Statutory provisions. 

b. The tenancy. 

c. The execution or other process. 

d. Rent due or to become due. 

e. Goods and chattels levied on. 

f. Notice to the sheriff. 

g. The duty and liability of the sheriff. 



ANALYSIS OF VOLUME TWO. 

(For detail see volume two.) 

Chapter 

XVir. EVICTION. 

XVIII. SURRENDER. 

XIX. FORFEITURE OF THE LEASEHOLD. 

XX. NOTICE TO QUIT. 

XXI. HOLDING OVER BY TENANT. 

XXII. STIPULATIONS FOR RENEWAL OR EXTENSION. 

XXIII. FIXTURES. 

XXIV. CROPS. 

XXV. CHATTELS ON THE PREMISES. 

XXVI. OPTION OF PURCHASE IN TENANT. 

XXVII. PAYMENT BY LANDLORD FOR TENANT'S IMPROVE- 

MENTS. 

XXVIII. SUMMARY PROCEEDINGS. 

XXIX. ACTIONS FOR RENT. 

XXX. ACTIONS FOR USE AND OCCUPATION. 

XXXI. LIENS IN B^AVOR OF THE LANDLORD. 

XXXII. DISTRESS AND ATTACHMENT. 

A. Distress. 

B. Attachment. 

XXXIII. RIGHTS OF ACTION AGAINST THIRD PERSONS. 



LANDLORD AND TENANT. 



CHAPTER I. 



THE NATURE OF THE RELATION. 

§ 1. The doctrine of tenure. 

2. "Landlord" and "tenant." 

3. The possessory rights of the tenant. 

a. The tenant has the possession. 

b. Entry by landlord during tenancy. 

(1) Is ordinarily tortious. 

(2) Is permissible for certain purposes. 

(3) Under express stipulations. 

4. The tenant's possession is not adverse to the landlord. 

5. The tenant is not the landlord's agent. 

6. Trespasser distinguished from tenant. 
. 7. Licensee distinguished from tenant. 

a. The nature of a license. 

b. Application of the distinction. 

c. License to take minerals. 

8. Lodger distinguished from tenant. 

9. Servant distinguished from tenant. 
10. "Cropper" distinguished from tenant. 

§ 1. The doctrine of tenure. 

It wa^ a fundamental principle of the feudal system, as estab- 
lished in England after the Norman Conquest, that all land in 
the possession of a subject was held "of'.' the king as having 
been originally granted by the latter. One who held land under 
a grant directly from the king was known as a tenant of the 
king, and such tenant could himself make a grant of the land or 
of a part thereof to another to be held by the latter of him, 
the grantor, without affecting the relation already existing be- 
tween himself and the king. The last grantee, while thus holding 

L. and Ten. 1. 



2 NATURE OF THE RELATION. § 1 

of his grantor, could himself grant the land or a part thereof to 
be held of himself, and such succession of grants could in theory 
continue indefinitely, each grantee being the tenant of his 
grantor, his "lord," as holding of and under him. The king 
himself was known as "the lord paramount," and the last 
grantee, the lowest in the scale of tenants, who was in actual 
possession of the land, was known as "the tenant in demesne." 
Each person in the scale, standing between the king and the 
tenant in demesne, was lord as regards those below him, and 
tenant as regards those above him.^ There was said to exist 
between each lord and the person who held immediately under 
him a "tenure," and the tenures were classified according to the 
classes of services which the tenant undertook to render to 
the lord in return for the grant to him. The term "tenure" 
is also used, particularly by modern writers, in a purely abstract 
sense, to describe the relation thus existing between a lord and 
his tenant, without reference to the particular terms of the hold- 
ing. 

By the statute of Quia Empiores,^ passed in the latter part 
of the thirteenth century, it was provided in effect that there- 
after no subject should convey his land or tenements to be held 
of himself in fee, but that the grantee (feoffee) should hold, not 
of the grantor, but of the same person of whom the grantor had 
held, the grantee being thus substituted for the grantor as tenant 
of the grantor's lord. Consequently, all holdings by a tenant 
in fee simple, of a lord other than the king, existent at the pres- 
ent day in England, must date from a time anterior to this statute. 

The statute of Quia Emptores did not apply when the convey- 
ance was of an estate less than t-hat of the grantor, so that he 
could be regarded as having an estate in reversion, and such 
a conveyance, after as before the statute, created a tenure 
between the grantor and grantee.^ A tenure thus arising as a 
result of the existence of a reversion in the grantor has been 
conveniently designated as an "imperfect tenure" as distinguished 

1 Pollock & Maitland, Hist. Eng. s 2 Co. Inst. 504 ; Y. B. 22 Edw. 1, 
Law (2d Ed.) 232 et seq.; Co. Litt. p. 641; Litt. § 132; CTiallis, Real 
65a, and Hargrave's note; 2 Blackst. Prop. {2d Ed.) 18; Digby, Hist. Real, 
Comm. 59. Prop. (4th Ed.) p. 235, note; Gray, 

2 Stat. Westminster III. (18 Edw. Perpetuities (2d Ed.) 15. 
1, c. 1, A. D. 1290). 



§ 2 THE DOCTRINE OF TENURE. 3 

from the "perfect tenure" created before the statute by a con- 
veyance in fee.* In the case of perfect tenure the rents or 
services, the obligation of which was assumed by the tenant, 
were incident to the seigniory, the right of lordship, while in 
the ease of imperfect tenure the rents or services were regarded 
as incident to the estate in reversion, or "reversion," as it is 
commonly called. 

In this country a perfect tenure may be regarded as existing 
in some states, estates in fee simple being held of the state as 
lord, but presumably in most of such states the statute of Quia 
Emptores is to be regarded as in force, so that no tenure can 
be created by a conveyance by an individual in fee simple. In 
Pennsylvania and South Carolina the law is perhaps otherwise, 
so that one may make a grant of land to another to hold of 
the grantor in fee simple.^ 

Since "perfect" tenure as between individuals exists in but few 
if any jurisdictions in this country, the only character of tenure 
which is here a subject for practical discussion is that "imper- 
fect" tenure which exists in the ease of a conveyance by one of 
an estate less than his own, leaving a reversion in him, and the 
rights and liabilities arising in connection with such tenure are 
what constitute the subject of this treatise. 

As is more fully, stated in another place," such conveyance of 
an estate less than that of the grantor is known as a "lease" or 
"demise" and usually, though not necessarily,'^ the person to 
whom the conveyance is made becomes liable for the payment 
o1' certain periodical sums, known as rent, as a compensation for 
the right to use and enjoy the land. 

§ 2. "Landlord" and "tenant." 

The word ' ' landlord " is by no means a modern term, it having 
been in use at least as early as the first part of the fifteenth 
century. * Its use by legal writers seems, however, comparatively 

* Coke's Copyholder, § 31; Tracts, ogee post, § 16. 

48; Leake, Dig. Prop. 42. ■? gee post, § 165. 

s The subject of tenure in the s Murray's English Dictionary re- 
United States is admirably discussed fers to a passage in Liber Albus, 192 b 
in Gray, Perpetuities, §§ 20, 28. As (Rolls' Ed. I, 22), "Le lessour, 
to tenure in Pennsylvania, see Cad- appelle landlord" (A. D. 1419), and 
wallader, Ground Rents, c. 1. states that a similar word existed in 



4 NATURE OF THE RELATION. § 2 

modern,^ and possibly arose from the fact that it is more compre- 
hensive than the word lessor, as including not only the person who 
makes the lease but also one to whom the reversion passes from 
the le.ssor by voluntary act or by operation of law. The use of the 
word "landlord" is confined to the ease of one having a rever- 
sionary interest, the word "lord" being still applied in England 
to one of whom another holds in fee by reason of a conveyance 
prior to the statute of Quia Emptores. 

The word "tenant," formerly used only as descriptive of the 
person who held land of another, came, as the doctrine of the 
various estates in land was developed, to be used in connection 
with the terms descriptive of the quantum of these states, as 
"tenant in fee simple," "in fee tail," "for life," or "for years," 
often without particular reference to the fact that the holding 
was under another but rather in the sense of the "holder" or 
' ' owner " of a particular interest in the land, and at the present 
day the term "tenant" is frequently so used. Thus, when the 
phrase "tenant in fee simple" is employed, it is intended thereby 
to describe the quantum of the holding rather than to direct 
attention to the fact that the holding is "of" some person. A 
"tenant in fee simple" does hold of another in England and in 
those states in which the existence of "perfect tenure" is recog- 
nized, the holding being ordinarily of the Crown or of the state 
as lord paramount, but this fact is of practically no importance 
at the present day. In those states in which perfect tenure is 
not recognized, a tenant in fee simple holds of no person, and 
the word "tenant" can there mean only "holder" or "owner." 
The expression "tenant" then may, at the present day, be said 
to be used in two senses. We speak of a "tenant in fee simple," 
"in fee tail," "for life," or "for years," meaning thereby merely 
the holder of an interest of that character, without intending 

Early English. The same work re- arising from leases, as distinct from 
fers to a passage in Shakespeare's conveyances in fee, to a considera- 
Richard the Second, act 2, scene 1, tion of the position of the "lessor," 
"Landlord of England art thou now, the person whio made the lease, 
not king." Littleton (section 457) speaks of 

9 The writer hais not observed any "very lord" and "very tenant," upon: 
use of the word by Littleton or Coke, which Coke comments: "This is to 
they confining themselves, in dis- be understood of a lord in fee simple, 
cussing the rights and liabilities and of a tenant of like estate. The 



§ 2 "LANDLORD" AND "TENANT." 5 

to suggest the idea ©f dependence on or holding "of" another. 
"When, however, we speak of "a tenant," without mention of 
any estate or interest, or when we use the expression "landlord 
and tenant, ' ' we have reference, not to the fact that one has 
an interest of a certain quantum in the land, but to the fact that 
the holding or possession is by the consent of and in dependence 
on another, that is, to the fact that the relation of tenure exists, 
the "imperfect tenure" which may still be created, in spite 
of the statute of Quia Emptores. 

One who holds the possession of land is, it is conceived, neces- 
sarily a tenant thereof, and he is, except in the one case of tenant 
at sufferance hereafter adverted to,^" tenant in one of the two 
senses of the word referred to above, and he may be a tenant 
in both senses. That is, he necessarily has an estate in the land, 
and he may hold such estate "of" or "under" another. There 
are unquestionably a number of cases not in harmony with the 
statement above made, that one in possession of land is always 
a tenant, ^^ but these, it is submitted, were wrongly decided upon 
the mistaken view that when one is put in possession of land as 
a result of a transaction not directly intended to create a ten- 
ancy he is not a tenant.^^ 

Though the person in possession of land is always a tenant of 
the land, one may in one case be a tenant without having pos- 
session of the land. This occurs when one who is a tenant of 
the land, whether holding under another or not so holding, grants 
an estate less than his own. The possession then vests in the 
grantee, and he is regarded as a tenant under the grantor, but 
the latter is also a tenant of the land as having an estate in the 
land, and frequently, likewise, as himself holding by tenure 

■word "landlord " is not found in "exclusive possession and control" 
Termes de la Ley (circ. 1563), the thereof until he could repay hlmiself 
earliest law dictionary. from the income was not a tenant, 

10 See post, § 15a. hut was an agent of the owner. But, 

11 See post, §§ 43, 46. properly speaking, an agent does not 

12 In Boston El. R. Co. v. Grace & have possession, he holding merely 
Hyde Co., 50 C. C. A. 239, 112 Fed. 279, in behalf of his principal (post, note 
it is decided that one who was 170). And one holding land as 
given a lien on land for improve- agent of another can evidently have 
ments made thereon by him and the no right to exclude such other. 



6 



NATURE OF THE RELATION. § 3 



under another. In the latter case the tenant holding the lesser 
estate is frequently referred to as a "subtenant." ^^ 

The words "tenant" and "lessee" are frequently used by the 
courts with considerable looseness as if equivalent in meaning. 
The word "lessee" should, however, be applied only to the person 
to whom the lease or demise creating the tenancy is originally 
made, while the word "tenant" is applicable to any person who 
holds possession under a lease, whether the original lessee or 
the latter 's assignee. A lessee, provided he has entered under 
the lease, is necessarily a tenant, but a tenant is not necessarily 
a lessee, since he may be merely an assignee mediate or immediate 
of the lessee. 

Corresponding to the word "tenant" as denoting one holding 
land is the word "tenancy" as referring to the "holding" of 
the land. Like the word "tenant," "tenancy" sometimes refers 
more particularly to the fact that the holding is "of" and in 
subordination to another, as when we speak of "the relation of 
tenancy, ' ' and sometimes it refers more particularly to the inter- 
est of the tenant, as when we speak of a tenancy "in fee simple," 
"for life," or "for years." 

§ 3. The possessory rights of the tenant. 

a. The tenant has the possession. As above indicated, one 
who is the tenant of land under another has the possession of 
the land, unless he has divested himself of the possession by 
creating a subtenancy, in which ease, applying the same rule, the 
subtenant has the possession, i* 

Possession involves not only the exercise of acts of ownership 
over the land but also the exclusion of the exercise of such acts 
by others.i^ That is, possession is necessarily exclusive, the 
only case in which two or more persons can at the same time be 
in possession of one piece of land being when they are concurrent 
owners, that is, eotenants, and in such case there are not two 
separate possessions but rather a single possession, that is, as 

13 See post, § 151. and not of the tenant." This must 

1* In Gray v. Kerr Land Ck>. (N. be a mistake. The opinion refers to 

D. ) 113 N. W. 1034, the oflBclal sylla- the lessee's possession under the 

hus says that "land which is farmed lease. 

hy a tenant under a lease from the is Lightwood, Possession of Land, 

owner is in possession of the owner 14; Pollock & Wright, Possession, 21. 



I 3 POSSESSORY RIGHTS OF THE TENANT. 7 

stated by Blackstone, a "unity of possession. " i" Since then 
possession is necessarily exclusive, statements that the tenant has 
possession and that he has "exclusive" possession may be 
regarded as equivalent. ^'^ 

Since the tenant has the possession and the right of possession, 
he and he alone may maintain trespass or its statutory equivalent 
on account of an unauthorized entry on the land, or ejectment 
against one wrongfully excluding him from possession. ^^ 

b. Entry by landlord during tenancy — (1) Is ordinarily 
tortious. The principle that the tenant has the possession of the 
land ai)plies as against his landlord as well as against third per- 
sons, and consequently an unauthorized entry by the landlord 
renders the latter liable to an action of trespass quare clausum 
f regit J or its statutory equivalent.^ ^ There is no presumption 
of an express authority in the landlord to enter, ^° and the law 
gives him authority to enter for certain exceptional purposes 
only. 21 

16 2 Blackst. Comm. 180, 191. to enter. Ebersol v. Trainor, 81 111. 

IT See Roads v. Trumpington, L. App. 645. In this case it was de- 

R. 6 Q. B. 56; Lightbody v. Truel- cided that such person, after plac- 

sen, 39 Minn. 310, 40 N. W. 67; LJn- ing obstructions on .the leased prem- 

denbower v. Bentley, 86 Mo. 515; ises, could not hold the landlord 

State V. Page, 1 Speer Law (S., C.) liable for removing them on the 

408, 40 Am. Dec. 608; Pittsburgh, C. ground that he had no right to enter 

& St. L. R. Co. V. Thornburgh, 98 for the purpoee. 

Ind. 201; Central Mills Co. v. Hart, The landlord cannot ordinarily 

124 Mass. 123; Neal v. Brandon, 70 bring trespass against his tenant, 

Ark. 79, 66 S. W. 200. the possession being in the latter. 

18 See post, chapter XXXIII. Rogers v. Brooks, 99 Ala., 31, 11 So. 

19 Schwartz v. McQuaid, 214 111. 357, 753. The rule is different, however, 
73 N. E. 582, 105 Am. St. Rep. 112; in the case of a tenancy at will in 
Dickinson v. Goodspeed, 62 Mass.- case the tenant commits waste. See 
(8 Cush.) 119; Rees v. Baker, 4 G. post, § 109 b (1), note 759. 

Greene (Iowa) 461; Bryant v. Spar- 20 Northern Trust Co. v. Palmer, 

row, 62 Me. 546; Teagarden v. Mc- 171 111. 383, 49 N. E. 553. But see 

Laughlin, 86 Ind. 476, 44 Am. Rep. Smith v. Kerr, 108 N. Y. 31, 15 N. B. 

332; Haywood v. Rogers, 73 N. C. 70, 2 Am. St. Rep. 362, to the effect 

320; Barneycastle v. Walker, 92 N. that mere failure by the tenant to 

C. 198; McGee v. Gibson, 41 Ky. (2 3. object to the landlord's entry to re- 

Mon.) 353; Williams v. Cleaver, 4 build involves the grant of a license 

Houst. (Del.) 453; State v. De Bail- to do so. The text book cited in 

Ion, 113 La. 572, 37 So. 481. this latter case does not appear to 

But a third person cannot as- sustain the statement, 

sert that the landlord had no right 21 See post, § 3 b (2). 



8 NATURE OF THE RELATION. § 3 

The mere entry of the landlord on the premises, not resulting 
in injury to the tenant, can make him liable in nominal damages 
only.22 If, however, the unauthorized entry is accompanied by 
acts of violence or oppression directed against the tenant or 
his property, or if it results in substantial interference with his 
enjoyment, he will be entitled to recover substantial damages. 
Accordingly, the tenant has been regarded as entitled to sub- 
stantial damages when the landlord removed fences upon the 
lands, 23 when the landlord removed the roof from the residence 
on the land, exposing the tenant to the elements and ultimately 
causing the loss of an eye,^* and likewise M'^hen the landlord 
entered and by threats prevented the tenant's employees from 
cutting timber in accordance with the terms of the lease. ^^ 
The landlord has been held liable for the diminution in the profits 
of the tenant's business caused by the unauthorized making of 
repairs by the former,^^ and for a trespass caused by animals 
belonging to him. ^^ He has been made liable in punitive dam- 
ages, for breaking open an out house on the premises in order to 
get his goods, ^s 

The landlord having no right himself to enter on the premises, 
he can obviously give a third person no right to do so. ^9 

Not only may the tenant maintain an action of trespass against 
the landlord in case of an unauthorized entry by the latter, but 
he may, if excluded from the possession by the landlord, main- 
tain ejectment against him as he could against a third person in 

22 So it has been decided that the , 25 Crane v. Patton, 57 Ark. 340, 
landlord is liable in nominal dam- 21 S. W. 466. 

ages only if he enters after the ten- 26 Goebel v. Hough, 26 Minn. 252, 

ant has removed from the premises 2 N. W. 847. 

with all his property. Shannon v. 27 prout v. Hardin, 56 Ind. 165, 26 

Burr, 1 Hilt. (N. Y.) 39. And see j^-^ Rgp, jg 

Reeder v. Purdy, 41 111. 279. ^s Sj^oi.gs .^ Brooks, 81 Ga. 468, 8 

23 Abrams v. Watson, 59 Ala. 524. g ^ ^39, 12 Am. St. Rep. 332. 

That the landlord cannot enter to ^., i, „ , ^ „ , 

^,_ ^ , ^, ^ , . 29 Northern Trust Co. v. Palmer, 

remove the fence, and that he is 

criminally liable under the local "^ "1- ^83, 49 N. E. 553; Darling v. 

statute for doing so, see State v. Kelly, 113 Mass. 29; Brown v. Powell, 

Piper 89 N C. 551. ^^ P^- 229; Crowell v. New Orleans 

21 Hatchell v. Kimbrough, 49 N. C. & N. E. R. Co., 61 Miss. 631. 
163. 



§ 3 POSSESSORY RIGHTS OF THE TENANT. 9 

like case, 3<* unless he has made a sublease, thereby putting the 
right of possession in another, ^i 

(2) Is permissible for certain purposes. The landlord is rec- 
ognized as having, apart from any stipulation, a right of entry 
on the land while in the tenant's possession for certain limited 
purposes. He has the right to enter to demand payment of 
rent *^* or to levy a distress.^^'' It has also been said that he 
may enter to "view waste," that is, to determine whether waste 
has been committed, provided at least that this does not involve 
the breaking of windows or doors,*^'^ or to post a notice of non- 
liability under the mechanics' lien law. ^^ jje may, no doubt, 
enter, without being guilty of trespass, for the purpose of comply- 
ing with police and sanitary orders and regulations, ^3 and he 
r 

so Tennessee & C. R. Co. v. Bast paration," that is, the state of repair, 

Alabama R. Co., 75 Ala. 516, 51 Am. "which was conceded." In Y. B. 21 

Rep. 475; Olendorf v. Cook, 1 Lans. Hen. 7, 13, there is a dictum by 

(N. Y.) 37; Karns v. Tanner, 66 Pa. ^®*^^' J- ^^^^ ^^^ reversioner can 

297" Feret v Hill 15 C B 207 ^'I'-er to see if the tenant has done 

And he may recover mesne profits' ^*^*«- These cases appear in Brooke's 

Holmes v., Davis, 19 N. Y. 488. Abridgment, Trespass, pi. 16, pi. 91, 

31 A f K' b 11 167M ^00 ^^' ^^^' "^^ Bagshaw v. Gaward, 

., ,^ „ „•„„' ' ' ' Yel. 96, and Six Carpenters' Case, 8 

45 N. E. 627. „ , ,,„ ^, . ,. ^ ^ '. 

Coke, 146, there us a dictum to this 

31a Proud V. HoUis, 1 Barn. & C. 8. ~, . . ., . ., . , . 

1.XVJ ii^, J. ija,iu. IX, v^. o gffgg^ jj^ ^]jg course of the statement 

In State v. Forsythe, 89 Mo. 667, that one who enters by authority of 

1 S. W. 834, it is decided that a j^^ ^nd abuses the authority, be- 

landlord whose rent is payable in ^^^^ ^ trespasser ab initio. In 

part of the crop may go on the prem- ^A^ndgrson v. Dickie, 26 How. Pr. (N. 

Ises and "request" a division of the y.) 105. there is a dictum that the 

crop. In Smith v. Caldwell, 78 Ark. landlord may enter to prevent waste 

333, 95 S. W. 467, it is decided that ^nd "to save himself from liability 

the landlord may go on the premises foj. leaving an exposed opening in 

to collect the rent and threaten to ^jjg highway." 
attach the crop. 32 Congdon v. Cook, 55 Minn. 1, 

31b See post, chapter XXXII. sg n. W. 253. 

31c In Y. B. 11 Hen. 4, 75 b, it is 33 So he may enter to repair plumb- 
decided by three judges against one ing in compliance with an order 
that an entry for this cause is justi- of the board of health (Dexter v. 
fiable. Thirning, the dissenting King 28 N. Y. St. Rep. 750, 8 N. Y. 
judge, opposes this view on the Supp. 489) or to repair the building 
ground that it would enable the re- in compliance with an order of the 
versioner to keep entering constant- building department. "White v. Thur- 
ly. In Y. B. 9 Hen. 6, 29 b, there ber, 55 Hun, 447, 8 N. Y. Supp. 661; 
Is a dictum by Babington, J., that Campbell v. Porter, 46 App. Div. 628, 
a reversioner can enter to view "re- 61 N. Y. Supp. 712. 



10 NATURE OP THE RELATION. § 3 

will generally be exempt from liability for acts required by the 
state or municipal authorities. 3* 

Apart from stipulation, the landlord has, by occasional deci- 
sions, no right to enter on the premises to make repairs, ^^ and 
an injunction has issued to restrain a sublessor from entering on 
the sublessee for that purpose, although there was in the head 
lease a proA'ision for forfeiture in case of failure to repair. ^^ On 
the other hand it has been said that a landlord has the right, 
without subjecting himself to liability as a trespasser, to make 
repairs necessary to put the premises in the condition in which 
they were at the time of the lease, and to remedy defects amount- 
ing to a nuisance.^'' And in one ease an injunction at the 
suit of the tenant to restrain the landlord from taking down the 
unsafe walls of a building for the purpose of reconstructing it 
was refused, ^s Occasionally, the statute authorizes an entry 
for this purpose. ^^ There is a recent decision that the owner 
of an office building may place a "to let" sign upon the inside 
of the window of an office which he has leased to another upon 
the latter 's indication of an intention to remove without giving 
a notice of the stipulated length. *" The placing of such a sign 
evidently involves an entry upon the premises for the purpose 
of placing it there, and a different view might be taken 'as to the 
rights of the landlord upon a lease of premises Of a different 
character. 

At common, law the landlord of a tenant at will has the right 
to enter on the premises for the purpose of terminating the 
tenancy. *i but if he commits wrongful acts after so entering, he 

3-1 Dunn V. Mellon, 147 Pa. 11, 23 he may enter to make repairs in 

Atl. 210, 30 Am. St. Rep. 706; Mark- Reader v. Purdy, 41 111. 279. 

ham V. David Stevenson Brew. Co., ss Dawson v. Brouse, Wlls. (Ind.) 

51 App. Div. 463, 64 N. Y. Supp. 617. 441. 

And see, post, § 186 c. 39 See Merrick's Rev. Civ. Code, La. 

35 Barker v. Barker, 3 Car. & P. art. 27C0; Bonnecaze v. Beer, 37 La. 

557; Gulliver v. Fowler, 64 Conn. 556, Ann. 531. And a statutory requirement 

30 Atl. 852 (dictum); Goebel v. that the landlord make repairs has 

Hough, 26 Minn. 252, 2 N. W. 847; been regarded as authorizing him to 

Smith V. Kerr, 108 N. Y. 31, 15 N. enter to make them. Dwyer v. Car- 

E. 70, 2 Am. St. Rep. 362. roll, 86 Cal. 298, 24 Pac. 1015. 

30 Stocker v. Planet Bldg. Soc, 27 40 Whipple v. Gorsuch, 82 Ark. 

Wkly. Rep. 877. 252, 101 S. W. 735, 10 L. R. A. (N, 

37 Kaufman v. Clark, 7 D. C. 1. S.) 1133. 

There is a dictum to the etCect that *i See post, § 13 b (1). 



§ 3 POSSESSORY RIGHTS OF THE TENANT. H 

becomes a trespasser ab initio.*^ Under the statutes requiring a 
notice to terminate a tenancy at will,** the landlord has no 
right to enter on the premises, and he may consequently be made 
liable in trespass qimre clausum fregit if he does so enter.** 

In case the lease contains an exception of part of the land or 
of what is in law regarded as a part thereof, the possession of 
such part is in the lessor. Consequently, in case trees and 
minerals are excepted in the lease, the tenant is liable to the 
landlord in trespass if he fells or lops the trees,*^ or presumably 
if he remoYes the minerals, and the landlord has in such case a 
right of entry upon the land so far as may be necessary for the 
utilization of the thing excepted. *^ 

When the law gives the landlord authority to enter for a 
particular purpose, as, for instance, to distrain, he becomes a 
trespasser ab mitio if he abuses such an authority.*^ 

The landlord may have, by reason of statute or express stipu- 
lation and occasionally by the common law, the right to enter 
and take possession of the premises for some default on the 
part of the tenant,*^ and he has the right to re-enter upon the 
termination of the tenant's leasehold interest, and this, by the 
weight of authority, even though the tenant makes resistance 
thereto. *9 

Upon the question whether, on the tenant's abandonment of 
the premises before the expiration of his leasehold interest, the 
landlord may enter without thereby subjecting himself to lia- 
bility as a trespasser, the decisions are not entirely clear. The 

*2 Faulkner v. Alderson, Gilmer v. Watson, 93 Mo. 107, 5 S. W. 605. 

(Va.) 221; Moore v. Boyd, 24 Me. ^t Six Carpenters' Case, 8* Coke, 

242. 146, 1 Smith's Leading Cases, 143, 

43 See pest, § 194 b. and notes; Brown v. Stackhouse, 155 

4* Cunningham v. Holton, 55 Me. Pa. 582, 26 Atl. 669, 35 Am. St. Rep. 

33; Marden v. Jordan, 65 Me. 9; 908. 

Dickinson v. Goodspeed, 62 Mass. In England, it being found that 

(8 Cush.) 119. See Elliott v. State, this doctrine bore severely upon land- 

39 Tex. Cr. App. 242, 45 S. W. 711. lords making distresses, it was pro- 

45 1 Wms. Saund. 321, note (5) to vlded by 11 Geo. 2, c. 19, § 19 that 

Pomfret v. Ricroft, citing Ashmead any irregularity or unlawful act by 

v. Ranger, 1 Ld. Raym. 551. the person distraining shall not 

loLiford's Case, 11 Coke, 48 b; Fos- make him a trespasser at initio. 

'ter V. Spooner, Cro. Bliz. 17; Heydon 48 See post, chapter XIX. 

V. Smith's Case, Godb. 172; Wardell 49 See past, § 216. 



12 NATURE OF THE RELATION. § 3 

fact that in England there is a statute providing a special pro- 
ceeding for the recovery of possession of the premises, when one- 
half year's rent is in arrear, if deserted by the tenant and left 
■uncultivated or unoccupied so as no sufficient distress can be had 
to countervail the arrears of rent, ^° may be regarded as tending 
to show that at common law the landlord has no right to enter 
on the abandoned premises without such proceeding. In this 
country there are at least two decisions to the effect that the 
landlord is a trespasser if he enters before the end of the term, 
though the tenant has abandoned the premises. ^^ On the other 
hand there are occasional decisions that the landlord has the 
right in such a case to enter upon the premises for the purpose 
of caring for them, ^^ and a few decisions according to which the 
tenant's abandonment gives the landlord the right to resume 
possession of the premises as if the lease had never been made. ^3 
The fact that the tenant temporarily withdraws from the occupa- 
tion of the premises gives the landlord, however, no right to 
enter thereon, s* The question which ordinarily arises upon an 
abandonment of the premises by the tenant is not whether the 
landlord may re-enter and resume control, but whether such 
resumption of control is sufficient to show an acceptance of the 
tender of possession inferable from the abandonment, so as to 

50 11 Geo. 2, c. 19, § 16. to return. In Lennen v. Lennen, 87 

51 Brown v. Kite, 2 Tenn. (2 Ind. 130, it is said that if the owner 
Overt.) 233; Shannon v. Burr, 1 Hilt, could not enter upon Its ahandon- 
(N. Y.) 39. ment by the tenant, "an owner of 

52 State v. McClay 1 Har. (Del.) valuable property might he compelled 
520; Bier y. Carr, 69 Pa. 326. '° "^and by and isee his property &o 

», TTT, i trr i rr, ., ro-i to Tulu for waut of soms one to 

53 Wheat V. Watson, 57 Ala. 581; 

„ , „ , „ „ occupy and care for it. ' 

Packer v. Cockayne, 3 G. Greene ^^^ ^^^.^^^ ^^ ^^^ ^^^ ^^ ^^^ 

<Iowa) HI; Kiplinger v. Green, 61 ^^^^^^ ^.^ ^^^ landlord that the lat- 
Mich. 340, 28 N. W 121, 1 Am. St. ^er may enter for a particular pur- 
Rep. 582; ZIgler v. McClellan, 15 Or. page does not involve a relinquish- 
499, 16 Pac. 179 (semble) ; Ebersol v. ment of possession by the tenant. 
Trainor, 81 111. App. 645 (dictum). Schwartz v. McQuaid, 214 111. 357, 73 

In Haller v. Squire, 91 Iowa, 10, N. E. 582, 105 Am. St. Rep. 112. 

58 N. W. 921; Torrans v. Stricklin, 54 Schwartz v. McQuaid, 214 111. 

52 N. G. (7 Jones Law) 50, it is de- 357, 73 N. E. 582, 105 Am. St. Rep. 

cided that after such resumption of 112; Larkins v. Avery, 23 Conn. 304; 

control of the premises by the land- Hough v. Brown, 104 Mich. 109, 62 

lord the tenant cannot assert a right N. W. 143 ; McKinney v. Reader, 7 



§ 3 POSSESSORY RIGHTS OP THE TENANT. 13 

effect a surrender, relieving the tenant from liability under his 
lease. This matter is discussed in a subsequent part of this 
work.5° 

In one state it has been decided that the fact that the 
rent is to be paid in a share of the crop does not entitle the land- 
lord to enter to take it,^*' but that if the title to the crop is, by 
express stipulation, to remain in the landlord until the rent is 
paid, he may enter to save the crop if this is reasonably neces- 
sary .5T In another state, a right in the landlord to take his 
share of the crop has been recognized.^^ It seems clear that if 
by express stipulation he is to have a share of the crop as stand- 
ing on the ground, he may enter for the purpose of harvesting 
it, ^^ and that the landlord may go on the premises for the pur- 
pose of demanding his share of the crop seems unquestionable. ^^ 

(3) Under express stipulations. Not infrequently by an 
express stipulation the landlord is given the right to enter upon 
the tenant's possession for a particular purpose. In such a case 
the landlord himself is merely a licensee as regards his right 
to enter during the tenancy, and the tenant has the exclusive 
possession to the same extent as any owner of land who has 
granted a license to another. ^^ Such would seem to be the case 

Watts (Pa.) 123; Chancey v. Smith, as in "Winter v. Stevens, 91 Mass. (9 

25 W. Va. 404, 52 Am. Rep. 217. Allen) 526, it is held that one who 

55 See post, § 190 c. built on another's land hy permis- 

ssWadley v. Williams, 75 Ga. 272. gjon, anjd with whom the owner 

This is, in Woodruff v. Adam's, 5 boarded, was tenant at will. The 

Blackf. (Ind.) 317, 35 Am. St. Rep. owner was, it seemfe, to be regarded 

122, asserted to be the case if the ^s a mere licensee, with the exclusive 
landlord's portion of the crop was. possession in the tenant. And the 

to be delivered to him by the tenant lessor, reserving the right to go on 

off the demised premises. certain fields to harvest the grain, 

57 Riddle V. Hodge, 83 Ga. 173, 9 is a licensee merely, the possession 

S. E. 786, being in the lessee. Stebbins v. Dem- 

5s Kamerick v. Castleman, 23 Mo. orest, 138 Mich. 297, 101 N. W. 528. 

App. 481. . In Leavitt v. Leavitt, 47 N. W. 329, 

59 See Woodruff v. Adams, 5 where by agreement the remalnder- 

Blackf. (Ind.) 317, 35 Am. St. Rep. man took up his residence on the 

122. property with the life tenant and 

eo State v. Forsiythe, 89 Mo. 667, carried on the necessary farming 

1 S. W. 834. Ante, note 31 a. operations and he was regarded as 

61 See Pollock & Wright, Posses- a tenant at will, the life tenant might 

sion, 80, and post, § 7 a. So where, be regarded as on the premises 



14 NATURE OF THE RELATION. § 3 

when the landlord is allowed to enter for the purpose of inspect- 
ing the premises, ^^ and when the landlord is given the right 
to enter to make necessary repairs, as is frequently done. 

A covenant by the landlord to make repairs has been held 
to involve a stipulation allowing him to enter for this purpose, ** 
and the same effect has been given to a provision that rent shall 
not be paid so long as the premises are out of repair.^* Such a 
grant of the right to enter to make repairs exempts the landlord 
from any liability for injury to the tenant, as by interruption 
of his business, caused by the reasonable exercise of the right,''^ 
but it does not exempt him from liability for acts, not necessarily 
involved in the repairs so allowed, done by him after entry, 8* 
or from liability for injury to the tenant caused by unreasonable 
delay in prosecuting the repairs. *^ 

The fact that the landlord is, by statute or by express stipula- 
tion, given the right to enter to make repairs gives him no right 
to make alterations,^* and a, fortiori no such right exists in the 
absence of any authority to make repairs. ^® 

The license to enter to make repairs need not be contained in 
the instrument of lease but may be given at any time, and may 

merely as licensee under the tenant lord to enter to make such, repairs 
at will. and alteration® as shall be necessary, 
«2 See Roads v. Overseers of Trun- or as he may consider important, for 
pington, L. R. 6 Q. B. 56. the preservation or improvement of 
03 Saner v. Bilton, 7 Ch. Div. 815; the premises, does not authorize the 
Kellenberger v. Foresman," 13 Ind, erection by him of two extra stories 
475; Schutz v. Corn, 5 N. Y. St. Rep. on the building for his own use. 
19, 24 Wkly. Dig. 498; Macnair v. Hessler v. Schafer, 20 Misc. 645, 46 
Ames (R. I.) 68 Atl. 950'. N. Y. Supp. 1076. And a statutory 
64 Smith v. McLean, 123 111. 210, right to make repairs on a building 
14 N. E. 50. intended for the occupation of hu- 
es Turner v. McCarthy, 4 E. D. man beings so as to render it ten- 
Smith (N. Y.) 247; Kellenberger v. antable does not authorize an entry 
Foresman, 13 Ind. 475. to make alterations. Dwyer v. Car- 

66 Button v. Holden, 4 Wend. (N. roll, 86 Cal. 298, 24 Pac. 1015. 

Y.) 643; White v. Mealio, 63 N. Y. 69 Hawthorne v. Siegel, 88 Cal. 

609. 159, 25 Pac. 1114, 22 Am. St. Rep. 

67 White V. Mealio, 63 N. Y. 609;' 291; Brande v. Grace, 154 Mass. 
Ferguson v. Troop, 17 Can. Sup. 210, 31 N. E. 633; Fargis v. Walton, 
Ct. 527; Smith v. McLean, 123 111. 107 N. Y. 398, 14 N. E. 303. Compare 
210, 14 N. E. 50. Townsend v. Boyd, 217 Pa. 386, 66 

68 So a permission to the land- Atl. 1099. 



I 4 



TENANT'S POSSESSION NOT ADVERSE. 



15 



be evidenced by conduct as well as by express language. ''* Such 
a license to enter to make repairs, given by the tenant after 
the lease, may, it has been decided, be revoked before the actual 
commencement of the work, ^i 

A right in the landlord to enter for a particular purpose has 
been enforced by injunction when his exclusion by the tenant 
was calculated to cause him irreparable injury. ''^ 

§ 4. The tenant's possession is not adverse to the landlord, 

The possession of a tenant under a lease is not adverse to the 
landlord so as to give the tenant title to the land by the con- 
tinuance of the possession for the statutory period of limita- 
tion. '^3 This is merely one application of the principle which 
extends to persons in other relations, that possession for the 



70 See Ferguson v. Troop, 17 Can. 
Sup. Ct. 527; Smith v. Kerr, 108 N. 
Y. 31, 15 N. E. 70, 2 Am. St. Rep. 
362. 

71 Fargis v. Walton, 107 N. Y. 
398, 14 N. E. 303. 

72 State Bank v. Rohren, 55 Neb. 
223, 75 N. W. 543. Compare Carlson 
V. Koemet, 226 111. 15, 80 N. E. 562. 

73 Dickinson v. Arkansas City Imp. 
Co., 77 Ark. 570, 92 S. W. 21; Von 
Glahn v. Brennan, 81 Cal. 261, 22 
Pac. 596; Catlin v. Decker, 38 Conn. 
262; McMullin v. Erwin, 58 Ga. 427; 
Vanduyn v. Hepner, 45 Ind. 589; 
Whiting V. Edmunds, 94 N. Y. 309; 
Parish Board of School Directors v. 
Edrington, 40 La. Ann. 633, 4 So. 
574, 1 L. R. A. 378; Den d. Van Blar- 
com V. Kip, 26 N. J. Law (2 Dutch.) 
351; Owen v. Village of Brookport, 
208 111. 35, 69 N. E. 952; Smalley v. 
Mitchell, 110 Mich. 650, 68 N. W. 
978; Pharis v. Jones, 122 Mo. 125, 26 
S. W. 1032; Dixon v. Finnegan, 182 
Mo. Ill, 81 S. W. 449; Martin v. 
Martin (Iowa) 94 N. W. 493; Slat- 
tery v. Slattery, 120 Iowa, 717, 95 
N. W. 201; Pittsburg, C, C. & St. L. 
R. Co. V. Dodd, 24 Ky. law Rep. 



2057, 72 S. W. 822; McGinnis v. Por-' 
ter, 20 Pa. 80; McCutchen v. Mc- 
Cutchen, 77 S. C. 129, 57 S. E. 678, 
12 L. R. A. (N. S.) 1140; Lea's Lessee 
V. Netherton, 17 Tenn. (9 Yerg.) 315; 
Balles V. Dolch (Tex. Civ. App.) 60 
S. W. 267; New York & T. Land Co. 
V. Dooley, 33 Tex. Civ. App. 636, 77 
S. W. 1030; Pulford v; Whicher, 76 
Wis. 555, 45 N. W. 418. 

But in Brown v. Issaquena County 
Sup'rs, 54 Miss. 230; Jones v. Madison 
County, 72 Miss. 777, 18 So. 87, it is 
held that if one enters under a lease 
of school lands for ninety-nine years, 
although the lease is void for non- 
compliance with statutory require- 
ments, he may show that he has 
held possession for the period of 
limitations, and that consequently he 
is entitled to the land for the bal- 
ance of the term. It would seem 
that, since he entered by permission, 
he was a tenant, although not under 
the intended lease, and that conse- 
quently limitations would not run In 
his favor. Furthermore, if they did 
run, he would it seems, acquire in 
effect a fee simple title. The acqui- 
sition, by adverse possession, of an 



16 NATURE OF THE RELATION. § 4 

statutory period of limitation will not defeat the right of the 
original owner to recover the land, unless the possession is 
hostile, under claim of right, and of such character as to exclude 
any recognition of the rights of the true owner. The relation 
of tenancy is merely one of several relations which raise a pre- 
sumption that the person in possession is holding not under 
claim of right but in subordination to and in recognition of the 
rights of the other party to the relation. This principle applies 
in favor of the landlord as well when the tenant is wrongfully 
holding over after the end of the term as when he is rightfully 
holding under the demise. In neither case does his continued 
possession bar recovery by the landlord.'^* 

Though the possession of the tenant is prima facie in subord- 
ination to the landlord's rights, it may become adverse to the 
landlord by the tenant's open repudiation of the tenancy and 
his notification to the landlord to that effect. '^^ There are 
occasional dicta,''^ and at least one decision,'''^ that the tenant 

estate for years, is not recognized by Pearson, 61 Tex. 302; Greeno v., Mun- 

the eases, nor is it in accord with son, 9 Vt. 37, 31 Am. St. Rep. 605; 

principle. Sherman v. Champlain Transp. Co., 

TiGwynn v. Jones' Lessee, 2 Gill 31 Vt. 162; Emerick v. Tavener, 9 

& J. (Md.) 173; Carson V. Broady, 56 Grat. (Va.) 220, 58 Am. Dec. 217;' 

Neh. 648, 77 N. W. 80, 71 Am. St. Allen v. Paul, 24 Grat. (Va.) 332; 

Rep. 691; Day v. Cochran, 24 Miss. Swann v. Young, 36 W. Va. 57, 14 

261; Holman v. Bonner, 63 Miss. S. E. 426. 

131; Lyebrook v. Hall, 73 Miss. 509, Tswillison v. Watkins, 28 U. S. 
19 So. 348; Whaley v. Whaley, 1 (3 Pet.) 43; Wells v. Sheerer, 78 Ala. 
Speer Law (S. C.) 225, 40 Am. Dec. 142; Ponder v. Cheeves, 104 Ala. 307, 
594; Jackson v. Cams, 20 Johns. 16 So. 145; Catlin v. Decker, 38 
(N. Y.) 301; Miller v. Warren, 94 Conn. 262; Morris v. Wheat, 11 App. 
App. Div. 192. 87 N. Y. Supp. 1011; D. C. 201; Rigg v. Cook, 9 111. (4 
Id., 182 N. Y. 539, 75 N. E. 1131; Gilm.) 336, 46 Am. Dec. 462; Pat- 
Learned v. Tallmadge, 26 Barb. (N. terson v. Hansel, 67 Ky. (4 Bush) 
Y.) 443; Taylor v. Kelly, 56 N. C. (3 654; South's Heirs v. Marcum, 22 
Jones Eq.) 240; Schuylkill & D. Ky. Law Rep. 641, 58 S. W. 527; 
• Imp. & R. Co. V. McCreary, 58 Pa. Meridian Land & Industrial Co. v. 
304; Bodkin v. Arnold, 45 W. Va. 90, Ball, 68 Miss. 135, 8 So. 316; Green- 
30 S. E. 154 (semble); Ross v. Mc- wood v. Moore, 79 Miss. 201, S'O So. 
Manigal, 61 Neb. 90, 84 N. W. 610; 609. 

Leport V. Todd, 32 N. J. Law, 124; 76 Millett v. Lagomarsino, 107 Cal. 

Nessley v. Ladd, 29 Or. 354, 45 Pae. 102, 40 Pac. 25; Alderson v. Marshall, 

904; Brandon v. Bannon, 38 Pa. 63; 7 Mont. 288, 16 Pac. 576. 
Duke V. Harper, 14 Tenn. (6 Yerg.) 77 Dasher v. Ellis, 102 Ga. 830, 30 

2S0, 27 Am. Dec. 462; Flanagan v. S. E. 544. It is so in terms decided 



I 4 TENANT'S POSSESSION NOT ADVERSE. 17 

cannot thus render his holding adverse to the landlord without 
relinquishing possession of the premises, but the great weight 
of authority is otherwise. The repudiation of the tenancy must, 
it is said, be ' ' clear, positive, and continued, ' ' '^^ and the land- 
lord is not affected by the repudiation of the tenancy and 
assertion of an adverse holding, unless and until notice thereof 
is brought home to him.''® It has been asserted that "express" 
notice to the landlord is necessary for this purpose,®" but the 
cases generally are to the affect that it is sufficient that he has 
in some way received notice of the tenant's assertion of adverse 
title. 81 

As elsewhere stated, the fact that the tenant attorns to a third 
person does not of itself render his possession adverse,*^ jjor 
does the mere act of the tenant in taking and recording a convey- 
ance of the property from one who claims adverse^ to the 
landlord have this effect,*^ nor is the possession adverse because 
rent is neither demanded nor paid. ** Even a judgment in favor 

in New York (Delancey v. Ganong, 9 Yerg.) 280, 27 Am. Dec. 462; Watson 

N. Y. [5 Seld.] 1; Whiting v. Ed- v. Smith's Lessee, 18 Tenn. (10 Yerg.) 

munds, 94 N. Y, 309; Bedlow v. New 476; Uddell v. Peak, 70 Tex. 547, 

York Floating Dry Dock Co., 112 N. 7 S. W. 786; Stacy v. Bostwick, 48 

Y. 263, 19 N. E. 800, 2 L. R. A. 629), Vt. 192; Allen v. Paul, 24 Grat. (Va.) 

but there the statute itself so 332; Voss v. King, 33 W. Va. 236, 10 

provides. See post note 86. S. E. 402. 

78 Morris v. Wheat, 11 App. D. C. so McGinnls v. Porter, 20 Pa. 80. 
201; Rigg V. Cook, 9 111. 336, 46 Am. si Brandon v. Bannon, 38 Pa. 63; 

Dec. 462; Wilkins v. Pensacola City Wells v. Sheerer, 78 Ala. 142; Mor- 

Co., 36 Fla. 36, 18 So. 20; Neff v. ton v. Lawson, 40 Ky. (1 B. Mon.) 

Ryman, l60 Va. 521, 42 S. E. 314; 45; Catlin v. Decker, 38 Conn. 262; 

Wessey v. Ladd, 29 Or. 354, 45 Pac. Floyd v. Mintsey, 7 Rich. Law (S. 

904. C.) 181; Udell v. Peak, 70 Tex. 547, 

ToWillison v. Watkins, 28 IT. S. 7 S. W. 786; Rensens v. Lawson, 91 

(3 Pet.) 43; Wells V. Sheerer, 78 Ala. Va. 226, 21 S. B. 347; Swann v. 

142; Holman v. Bonner, 63 Miss. 131; Thayer, 36 W. Va. 46, 14 S. B. 423. 
Greenwood v. Moore, 79 Miss. 201, 30 Notice to a third person Is not 

So. 609; Campbell v. Shipley, 41 sufficient. Trustees of Wadisworth- 

Md. 81; Ross v. McManigal, 61 Neb. ville Poor School v. Meetze, 4 Rich. 

90, 84 N. B. 610; Farrow's Heirs v. Law (S. C.) 50; Stacy v. Bostwick, 

Bdmundson, 43 Ky. (4 B. Mon.) 605, 48 Vt. 192. 
41 Am. Dec. 250; McGinnis v. Porter, sz See post, § 19 b (1). 
20 Pa. 80; Whaley v. Whaley, 1 ss xjdell v. Peak, 70 Tex. 547, 7 S. 

Speer Law (S. C.) 225, 40 Am. Dec. W. 786. 
594; Duke v, Harker, 14 Tenn. (6 84 Campb°ll v. Shipley, 41 Md. 81; 

Ii. and Ten. 2. 



18 NATURE OF THE RELATION. § 5 

of the landlord against the tenant for the possession of the prem- 
ises does not, it has been held, render the subsequent holding by 
the latter adverse to the former. ^^ 

In some of the states there is a statutory provision that the 
possession of the tenant shall be deemed the possession of the 
landlord till a certain time has elapsed after the termination of 
the tenancy, in spite of any assertion by the tenant of an adverse 
title. 8« 

§ 5. The tenant is not the landlord's agent. 

The fact that one is tenant of another does not of itself create 
any relation of agency between them, so as to impose a liability 
on the landlord to third persons by reason of the acts or declara- 
tions of the tenant. Accordingly, it has been decided that a 
landlord is not bound by the false statement of the tenant to 
an intending purchaser that he holds under the person under- 
taking to sell the property. ^'^ Nor can the tenant impose a 
servitude or lien on the premises to the detriment of the land- 
lord's reversionary estate, 8* and, as will appear later, a landlord 
is not liable for injuries to third persons caused by the acts or 

Ehrman v. Mayer, 57 Md. 612; Le- quired another title or masy have 

port V. Todd, 32 N. J. Law, 124; claimed to hold adversely to his 

Whiting V. Edmunds, 94 N. Y. 309; landlord. But this presumption 

Bradt v. Church, 110 N. Y. 537, 18 shall not be made after the periods 

N. E. 357. herein limited." The California 

S5 Church v. Wright, 4 App. Dlv. Statute (Code Civ. Proo. § 326) is the 

312, 38 N. Y. Supp. 701, 39 N. Y. same, with the exception that "five" 

Supp. 989. is substituted for twenty, while in 

86 The New York Code of Civil the Wisconsin statutes ( St. 1897, 

Procedure, § 373, provides that "where § 4216) "ten" is substituted for 

the relation of landlord and tenant "twenty." 

shall have existed between any per- s? Clarke v. Beck, 72 Ga. 127. 
sons, the possession of the tenant ss Gentleman v. Soule, 32 111. 271, 

shall be deemed the possession of the 83 Am. St. Rep. 264; Doda v. 

landlord until the expiration of Schmidt, 47 111. App. 267; Williams 

twenty years after the termination v. Vanderbilt, 145 111. 238, 34 N. B. 

of the tenancy, or, where there has 476, 21 L. R. A. 489, 36 Am. St. Rep. 

been no written lease, until the ex- 486. So it is well settled that the 

piration of twenty years after the tenant cannot subject the reversion 

la"?t payment of rent, notwlthstand- to a mechanic's lien. See 20 Am. & 

Ing that the tenant may have ac- Eng. Enc. Law (2 Ed.) 319. 



§ 6 TRESPASSER DISTINGUISHED FROM TENANT. 19 

neglect of the tenant with reference to the premises.^^ Nor is he 
liable for injuries even to his own tenant xjaused by the acts of 
persons holding other premises as his tenants growing out of 
their occupancy of such premises. ^^ The only instances, appar- 
ently, in which liability has been imposed on the landlord for 
the acts of the tenant, not participated in or authorized by him, 
have occurred under the rule adopted in some states that a pub- 
lic corporation, such as a railroad company, cannot, by leasing 
its property, relieve itself from the performance of its public 
duties, unless the legislative authority to lease expressly so pro- 
vides. 91 

§ 6. Trespasser distinguished from tenant. 

The distinction between a trespasser and a tenant is an obvious 
one, the former being one who enters on another's land without 
either permission or authority in law, and a tenant being one 
who enters or retains possession by permission as expressed by 
the grant to him of an estate in the' land. ^^ The unquestion- 
able fact that a trespasser is not a tenant of the rightful owner 
has been most frequently referred to in connection with actions 
for use and occupation, hereafter discussed.®^ 

One who has entered as a trespasser may become a tenant by 
recognizing the rights of another in the land and in effect agree- 
ing to hold iinder him.^* The fact, however, that a trespasser, 
upon a demand by the landowner that he pay a certain amount 

89 See post, §§■ 97, 101. See Bach- Bldg. Co., 86 111. App. 681, and post, 

art V. Lehigh Coal & Nav. Co., 208 § 98. 

Pa. 362, 57 Atl. 765. »i See Baldwin, Railroad Law, 460; 

The fact that a lease was made 44 L. R. A. 737, note to Caruthers v: 

with the intention that the land Kansas City, Ft. S. & M. R. Co. 

should be cleared, and subject to an »2 Kco v. Phelan, 77 Cal. 86, 19 

agreement that the landlord should Pac. 186; Jackson v. Mowry, 30 Ga. 

receive a share of the proceeds of 143; Krug v. Davis, 101 Ind. 75: 

the land when cleared, was held not Martin v. Knapp, 57 Iowa, 336, 10 N. 

to make the landlord liable for in- W. 721; Petty v. Malier. 54 Ky. (15 



juries to another's property caused 



B. Mon.) 591; Center Creek Min. Co. 

. V. Frankenstein, 179 Mo. 564, 78 S. 

by the negligence of the tenant in ^ ^^^g. ^.^^ ^ ^^^^^ 2i Nev. 65, 

burning the brush wood. Ferguson 34 pac. 337; Neppach v. Jordan, 15 

V. Hubbeil, 26 Hun (N. Y.) 250. or. 308, 14 Pac. 353. 

90 Abrams v. Watson, 59 Ala. 524. 93 See post, chapter XXX. 

See J. B. Sanborn Co. v. Marquette 94 See post, §§19, 303. 



20 NATURE OF THE RELATION. § 7 

of rent, while refusing to pay such amount intimates a readiness 
to pay a less amount, has been regarded as not making him a 
tenant,®^ and a fortiori, it seems, the owner of land cannot make 
a trespasser thereon his tenant by merely demanding that such 
trespasser pay rent to him, the trespasser not acceding to his 
demand or otherwise recognizing him as his landlord. ^^ That 
the person entitled refrains from taking measures to expel the 
trespasser cannot, it would seem clear, make the latter his ten- 
ant. ^^ One who has been a tenant may become a trespasser by 
giving up possession at the end of his term and subsequently 
entering without permission.^^ He does not, however, become a 
trespasser by wrongfully holding over beyond the time of rightful 
possession. He becomes a "tenant at sufferance. "^^ 

§ 7. Licensee distinguished from tenant. 

a. The nature of a license. One having an estate in land 
may, without parting with such estate, give another rights of 
enjoyment in the land in one of three ways. He may give an- 
other a lesser estate in the land, that is, the possession and con- 
trol for a limited time, retaining the "reversion," thus making 
such other his tenant. Or he may grant to another a right to 
use the land for a certain defined and limited purpose, either in 
perpetuity or for a named period, the possession of the land, 
however, remaining in him as before. Such a right in another's 
land {jus in re alieno) is sometimes known as a "servitude," 
and may in our law be either an easement or a right ot profit a 
prendre.^^" To be distinguished both from a tenancy and a 
servitude, whether an easement or a right of profit, is the right 
given by a license. A license, it is said in a leading case on the 
subject, "passeth no interest, nor alters or transfers property in 
anything, but only makes an action lawful, which without it had 
been unlawful, as a license to hunt in a man's park, to come into 
his house, are only actions which without license had been unlaw- 

as Gallagher v. Himelberger, 57 ot See post, § 13 a (5). 
Ind. 63; Hill v. Coal Valley Mln. Co., 98 Douglass v. Geiler, 32 Kan. 499, 

103 111. App. 41; Center Creek Mln. 4 Pac. 1039. 
Co. V. Frankenstein, 179 Mo. 564, 78 99 See post, § 15. 
S- W. 7S5. 100 See 1 Tiffany, Real Prop. §§ 

96 See post, § 302, at note 30. 304-341. 



§ 7 LICENSEE DISTINGUISHED FROM TENANT. 21 

ful_"ioi rpiie right of a licensee, therefore, is merely that of 
exemption from liability to the owner of the land in ease he does 
certain specified acts on the land. He has not the possession of 
the land, this remaining in the licensor, and he has not, it seems 
clear on principle, any interest in the land which he may assert 
agajnst a third person, that is, his right is purely in personam 
against the owner of the land and not in rem.^'^^ There are occa- 
sional decisions apparently to the contrary,!"* but these decisions 
can be supported, it is submitted, only on the theory that the right 
in question though called a license was not such. As has been 
remarked, "if a so-called license does operate to confer an exclu- 
sive right capable of being protected against a stranger, it must 
be that there is more than a license, namely the grant of an inter- 
est or easement."!"* 

A license is ordinarily revocable at the will of the owner of the 
land,!<'5 unless it is incident to a grant, as when one is given a 
license to hunt on another's land and to carry away the 
game killed, or to cut and remove trees on the land^"® or to 

101 Thomas v. Sorrel, Vaughan, 351. the exercise of his license, on the 

102 See Pollock, Torts (6th Ed.)" theory that the licensee had the pos- 
366; Goddard, Basements (6th Ed.) session of the land or of a part 

*" 446; Heap V. Hartley, 42 Ch.Dlv. 461; thereof. But a licensee never has 

Whaley v. Laing, 2 Hurl. & N. 476, possession of the land, since that re- 

3 Hurl. & N. 675; Hill v. Tupper, 2 mains in the licensor. 
Hurl. & C. 121. Per Bramwell, in In Richards v. Gauffret, 145 Mass. 

Stockport Water Works v. Potter, 486, 14 N. E. 535, it was decided that 

3 Hurl. & C. 300; Clapp v. Boston, 133 one given, by an instrument under 

Mass. 367; Fletcher v. Livingston, seal, the exclusive right to cut Ice 

153 Mass. 388, 26 N. B. 1001. Per Lor- from another's pond, could re- 

ing, J., in Walker Ice Co. v. Ameri- cover damages from a third person 

can Steel £ Wire Co., 185 Mass, 463, who cut the ice. The only reason 

70 N. E. 937. given is that "it would be a reproach 

103 Case V. Weber, 2 Ind. 108, is to the law" were it otherwise, and 
to the effect that one having a it is added that "he had an interest 
license to flow water through an- greater than a revocable license." 
other's land has a right of action What he actually had, it seems, was 
against a third person who obstructs a right of "profit a prendre," which 
such flow. And in Paul v. Hazle- is no doubt a right in rem. 

ton, 37 N. J. Law, 106, and Miller v. lo* Pollock, Torts (6th Ed.) p. 367. 

Greenwich, 62 N. J. Law, 771, 42 Atl. 105 Goddard, Easements (6th Ed.) 

735, it Is held that a licensee might 564; 1 Tiffany, Real Prop. § 304. 

sue a third person in trespass quare io« Wood v. Leadbitter, 13 Mees. 

clausum f regit for interference with & W. 838; Miller v. State, 39 Ind. 



22 NATURE OF THE RELATION. § 7 

remove chattels sold to him by the landowner. ^"^ Moreover, in 
some states, the view has been adopted that if the licensee has 
made expenditures on the faith of the licensee, it cannot be 
revoked. ^<*8 The right to revoke the license may be exercised, 
without any notice, by a mere interference with the exercise of 
the license, ^"^ but though the license may ordinarily be revoked, 
the licensor may be held liable in damages if such revocation 
involves the breach of a contract, i^" 

A license is ordinarily purely personal, so that the benefit 
thereof cannot be transferred.'^ii It has, however, in one case 
been held that the benefit of a license to the lessor to enter for 
a certain purpose passes to his transferee and is enforcible against 
an assignee of the lessee, the instrument of lease expressly pro- 
viding that the stipulations of the lease should extend to and 
be binding on the assignees of the respective parties,ii2 and in 
another case it was held to pass to the lessor 's transferee without 
any mention of him. ^i* Such a stipulation giving the lessor a 
right to enter on the land, if regarded as a contract authorizing 
a recovery of damages, may well pass in favor of a transferee 

267; Long v. Buchanan, 27 Md. 502, "o Kerrison v. Smith [1897] 2 Q. B. 

92 Am. Dec. 653; Sterling v. War- 445; McOrea r. Marsh, 78 Mass. (12 

den, 51 N., H. 217, 12 Am. Rep. 80; Gray) 211, 71 Am. St. Rep. 745. 

Metcalf V. Hart, 3 Wyo. 513, 27 Pac. m Wickham v. Hawker, 7 Mees. 

900, 31 Pac. 407, 31 Am. St. Rep. 122. & W. 63; Ackroyd v. Smith, 10 C. B. 

W7 Browne, Stat, of Frauds, § 27; 188; Prince v. Case, 10 Conn. 375,^ 

Rogers v. Cox, 96 Ind. 157, 49 Am. 27 Am. Dec. 675; Jenkins v. Lykes, 

Rep. 152; Giles v. Simonds, 81 19 Fla. 148, 45 Am. Rep. 19; 

Mass. (15 Gray) 441, 77 Am. Dec. Johnson v. Skillman, 29 Minn. 95, 12 

373; Wood v. Manlefy, 11 Adol. & E. N. W. 149, 43 Am. St. Rep. 192; 

34- Cowles V. Kidder, 24 N. H. 364, 57 

108 See cases cited, TifEany, Real Am. Dec. 287; Blaisdell v. Ports- 
Prop. § 304, note 21. mouth, G. F. & C. R. Co., 51 N. H. 

109 Hyde v. Graham, 1 Hurl. & C. 483; Mendenhall v. Klinck, 51 N. Y. 
593; Nichols v. Peck, 70 Conn. 439, 246; Fuhr v. Dean^ 26 Mo. 116, 69 
39 Atl. 803, 40 L. R. A. 81, 66 Am. St. Am. Dec. 484; Dark v. Johnston, 55 
Rep. 122; Simpson v. Wright, 21 111. Pa. 164, 93 Am. Dec. 732. 

App. 67; Hodgkins v. Farrington, 150 112 Marks v. Gartside, 16 111. App. 

Mass. 19, 22 N. B., 73, 5 L. R. A. 209, (16 Bradw.) 177. 

15 Am. St. Rep. 168; Wilson v. St. "s Brewster v. Gracey, 65 Kan. 

Paul, M. & M. R. Co., 41 Minn. 56, 42 137, 69 Pac. 199. And see Stehbins 

N. W. 600, 4 L. R. A. 378; Pitzman v. Demorest, 138 Mich. 297, 101 N. 

V. Boyee, 111 Mo. 387, 19 S. W. 1104, W. 528. 

33 Am. St. Rep. 536. 



§ 7 LICENSEE DISTINGUISHED PROM TENANT. 23 

of the reversion and be enforcible against an assignee of the 
lessee as a covenant running with the land; ^i* but regarding 
the stipulation as a license merely, it is not entirely clear upon 
what principle a transferee of the reversion is to be regarded 
as entitled to the benefit thereof. It may perhaps be regarded 
as a license "coupled with an interest" which by the common 
law is assignable. ^^^ 

b. Application of the distinction. A tenant, as we have 
before seen, has the possession and the right of possession, vtrhich 
he may assert against the whole world and which, except in the 
case of tenant at will,^i* he may transfer to another, and is not 
terminable at the landlord's option. One having a servitude over 
another's land, that is an easement or right of profit, though he 
has not, like the tenant, a right of possession but merely a right 
to use the land for a certain purpose may, like the tenant, assert 
his right against the whole world,ii'' aQ(j jjjg right is not ordinar- 
ily terminable at the option of the owner of the land. One having 
a license, on the other hand, has merely a permission to do 
certain acts, which he can assert against the licensor only, and 
which is ordinarily terminable or revocable at the will of the 
latter, and is not transferable. It is evident from the above con- 
siderations that a servitude, as having the element of perman- 
ence to a greater or less degree, and that of transferability, and 
as giving rights in rem, much more closely resembles a tenancy 
than does a license, but while the question has frequently arisen 
whether, in a particular case, one was a licensee or a tenant, 
whether one was the owner of a servitude in land or a tenant 
thereof has been but seldom the subject of inquiry. This is pre- 
sumably owing to the fact that easements, by far the more ordin- 
ary class of servitudes, are at common law recognized for a 
limited number of purposes only and only as ' ' appurtenant ' ' to 
other land. 

The question whether one is a tenant of certain land or 
the owner of a servitude therein is, it is conceived, to be deter- 
mined solely by the consideration whether he has been given the 
possession of the land or merely a right to use it for a certain 
specified purpose, and, likewise, the question whether one is a 

i"See post, § 149 b. "s See post, § 13 b (4). 

115 1 Tiffany, Real Prop. § 304. i" See 1 Tiffany, Real Prop. § 325. 



24 NATURE OF THE RELATION. § 7 

tenant or a licensee is to be determined by the consideration 
whether he has the posession. "While the decisions which we 
have to consider bear almost entirely upon the latter distinction, 
that between tenant and licensee, they are applicable as well to 
the distinction between a tenant and the owner of a servitude. 

The question of tenancy vel non is to be determined by a con- 
struction of the language used in the grant of the right in 
question, as to whether it shows an intention to confer possession, 
and consequently the use of particular words is not necessarily 
conclusive. A tenancy may be created by the word " license, "ii* 
and, on the other hand, though an instrument purports to lease 
or demise the property, it may appear from its construction as a 
whole, that it is a license only.n^ 

Occasionally the fact that the rights conferred are, by express 
provision, to continue for a certain time has been referred to aa 
showing that a tenancy and not a license was intended to be 
created.^ 20 g^^ j^ (jogs not appear why such a provision should 
have this effect. On the one hand, a lease is perfectly effective 
though naming no term, that is, it operates to create a tenancy 
at will if not for life,i2i and, on the other hand, a license may 
*well specify the "term" of its enjoyment and still be legally 
revocable at any time. Even if full effect be given to a provision 
as to the term of enjoyment under the grant, that can of itself 
show no intention to transfer the right of possession so as to 
create a tenancy, but it would at most, if the instrument is prop- 
erly executed for the purpose, make it operative as a grant 
of an easement or of a right of profit. 

The fact that a periodical sum is to be paid by the beneficiary 
of the grant, even though it is called "rent," cannot be regarded 
as conclusive that a tenancy is created, since a licensee may well 

"sBro. Abr., License, pi. 19; Bac. Ala. 240, 25 So. 834; Holladay t. Chi- 

Abr., Leases (K) ; Right v. Proc- cago Arc Light & Power Co., 55 111. 

tor, 4 Burrow, 2209; Anonymous, 11 App. 463. 

Mod. 42; Tisdale v. Essex, Hob. 35; 120 Gary Hardware Co. v. McCarty, 

Glenwood Lumber Co. v. Phillips 10 Colo. App. 200, 50 Pac. 744; Dux- 

[1904] App. Cas. 405. bury v. Sandiford, 80 Law T. (N. 

ii» Oxford V. Loathe, 165 Mass. 254, S.) 552; Kunkle v. Philadelphia Rifle 

43 N. E. 92; Reynolds v. Van Beu- Club, 10 Phila. (Pa.) 52, 30 Leg. Int. 

ren, 155 N. Y. 120, 49 N. E. 763, 42 200. 

L. R. A. 129; Ferris v. Hoglan, 121 121 See post, § 13 a (4). 



§ 7 LTCENSEE DISTINGUISHED PROM TENANT. 25 

agree so to pay for the enjoyment of the license, and the word 
"rent" is frequently used otherwise than in its strictly technical 
sense.^22 And conversely, the fact that there is no express agree- 
ment that a rent shall be paid by the beneficiary of the grant 
does not of itself show that there is only a license and not a 
lease, i^* since a lease is perfectly valid without any reservation 
of rent. 124 

If language is used which would otherwise call for the con- 
struction that the grant of an estate and of the consequent right 
of possession is intended, the fact that the person to whom the 
grant is made agrees not to use the land for specified purposes, 
or even agrees to use it for only one purpose, as for instance for 
a residence, does not show that a license only is intended, though 
his agreement has the effect of imposing on him a personal 
obligation as to the use of the land, a breach of which will render 
him liable in damages, ^^^ and may even be restrained by injunc- 
tion. 126 On the other hand, if the language used purports to 
give another the right to use the land only for a specific purpose, 
and there is nothing to show an intention to give the right of 
possession, a tenancy cannot be regarded as arising. In order to 
give language of the latter character the effect of a demise of 

122 See liowell r. Strahan, 145 to he disciualified as being the ten- 
Mass. 1, 12 N. E. 401, 1 Am. St. Rep. ant of a party in interest, he must 
422; Holladay v. Chicago Arc Light be shown to be a tenant. There are 
& Power Co., 55 111. App. 463; Rey- similar dicta in Burnett v. Caldwell, 
nolds V. Van Beuren, 155 N. Y. 120, 76 TJ. S. (9 Wall.) 290; Berry v. 
49 N. B. 763, 42 L. R. A. 129; Gold- Potter, 52 N. J. Eq. 664, 29 Atl. 323, 
man v. New York Advertising Co., and perhaps in Simpklns v. Rogers, 
29 Misc. 133, 60 N. Y. Supp. 275; Han- 15 111. 397. 

cock V. Austin, 14 C. B. (N. S.) 634. 124 See post, § 165. 
But the fact that a yearly sum was 126 See post, § 123 e. So a lease 

to be paid was regarded as tending of land for a hunting preserve (Kel- 

to show a lease, in Kunkle v. Phila- logg v. King, 114 Cal. 378, 46 Pac. 

delphia Rifle Club, 10 Phila. (Pa.) 166, 55 Am. St. Rep. 74; Shatter Es^ 

52, 30 Leg. Int. 200. tate Co. v. Alvord, 2 Cal. ApD. 602, 

123 In Branch v. Doane, 17 Conn. 84 Pac. 279) presumaWiy imposes 
402, there are expressions to the merely a personal obligation on the 
effect that the absence of an agree- lessee to use it for no other pur- 
ment for compensation is conclusive pose, the mention of the purpose in- 
that not a lease but a license is In- volving in effect a covenant to that 
tended. The decision, however, was effect. 

merely that if a witness is sought 120 See post, § 123 1. 



26 NATURE OF THE RELATION. § 7 

the land, it would be necessary to hold that the grant of the right 
to use land for a single purpose is to be construed as a grant of 
the right of possession, which in itself involves a general right of 
user, and that the mention of the purpose is merely to have the 
effect of imposing a personal obligation on the beneficiary not to 
use it for any further purpose, that is, as constituting a covenant 
or contract, or that the mention of the purpose in effect consti- 
tutes a "special limitation "i^'^ terminating the tenancy upon the 
use of the land for another purpose. One cannot be a tenant in 
possession of land and at the same time be restricted to using 
the land for a single purpose, unless there is a covenant, condition 
or limitation by which such restriction may be enforced. 

That the question whether one is a licensee or a lessee is to be 
determined by a consideration of whether the right of possession 
has been transferred appears from several English cases. For 
instance, it has been there decided that an agreement by which 
the owner of a music hall purported to let it to another for a 
series of entertainments to be given on specified days did 
not constitute a lease, it appearing that such owner was to retain 
the possession, ^^s ^j^j -^v^iien the owner of a factory gave per- 
mission to another to place certain machines in a room in the 
factory with a right to power to work them and free ingress and 
egress for the purpose of inspecting and operating them, the 
relation of landlord and tenant was held not to have been 
created. 129 And the letting at a weetly rent of a stall at an 
exhibition from which the person taking it was excluded for a 
certain time every day was regarded as a license and not a 
lease, i^'' So it has been decided that an agreement by which 
one obtains exclusive possession operates as a lease and renders 
the beneficiary thereunder liable to be "rated," that is, taxed, 
as an occupant, i^i while, if the grantor retains control of the 
premises, the agreement is a license merely and he remains liable 
for the rates. ^^^ 

127 See post, § 12 d. isi Taylor v. Overseers of Poor of 

128 Taylor v. Caldwell, 3 Best & S. Pendleton, 19 Q. B. Diy. 288. 

826. 132 London & N. W. R. Co. v. Buck- 

129 Hancock v. Austin, 14 C. B. master, L. R. 10 Q. B. 70. See, also, 
(N. S.) 634. Watkins V. Overseers of Milton-Next- 

130 Rendell v. Roman, 9 Times Law Gravesend, L. R. 3 Q. B. 350; Grant 
R- 192. V. Oxford Local Board, L. R. 4 Q. 



§7 



LICENSEIET DISTINGUISHED FROM TENANT. 



27 



In this country, likewise, there are a number of cases in which 
it is stated expressly or by implication that a tenancy, as dis- 
tinguished from a license, can exist only when there is a right of 
possession or exclusive possession, i^s and there are other cases 
which are apparently decided on such a view.is* So it has been 
said, in connection with grants of rights in mining lands, that 
"in order to ascertain whether an instrument must be construed 



B. 9; Cory v. Bristow, 2 App. Cas. 
262. 

133 Ferris v. Hoglan, 121 Ala. 240, 
25 So. 834; HoUaday v. Chicago Arc 
Light & Power Co., 55 111. App. 463; 
De Montague v. Bacharach, 181 Mass. 
256, 63 N. E. 435; Central Mills Co. 
V. Hart, 124 Mass. 123; Owen v. 
Doty, 27 Cal. 502, per Rhodes, J.; 
Boone v. Stover, 66 Mo. 430; Sterling 
V. Heiman, 108 Mo. App. 40, 82 S. 
W. 539; Callen v. Hilty, 14 Pa. 286; 
Eaton V. Hall, 43 Misc. 153, 88 N. 
Y. Supp. 260; Markowitz v. Greenwall 
Theatrical Circuit Co. (Tex. Civ. 
App.) 75 S. W. 74; Roberts v. L,ynn 
Ice Co., 187 Mass. 402, 73 N. E. 523. 
In Callen v. Hilty, 14 Pa. 286, it 
was decided that one to whom the 
owner "doth let or give the priv- 
ilege of living four years on his 
farm" in consideration of his clear- 
ing the wood land thereon, the owner 
still remaining on the farm, was a 
licensee and not a tenant. Here the 
court clearly states the distinction be- 
tween a tenant and a licensee as con- 
sisting in the exclusive possession of 
the latter. So in Johns v. McDaniel, 
60 Miss. 486, one cultivating land by 
permission was held to be a mere 
licensee. In Rowland v. Voechting, 
115 Wis. 352, 91 N. W. 990, it was 
held that one placed in exclusive 
possession of a farm, he paying one- 
half of the net income as rent, was 
a tenant. The court refers to this 
provision for compensation, and to 



the use of the words "lease, demise 
and let," as well as to the fact of 
exclusive possession, as showing him 
to be tenant. The latter alone, it 
ia submitted, was suflBcient for this 
purpose. 

is-i In Crane v. Patton, 57 Ark. 
340, 21 S. W. 466 it was held 
'that an agreement by which the 
owner "rents" certain land^ to an- 
other till a certain date, "for which" 
such other agrees to pay all the 
taxes and to cut the timber, was 
a lease and not a license, since it 
"passed the right of possession." In 
Heywood v. Pumer, 158 Ind. 658, 32' 
N. E. 574, 18 L. R. A. 491, it was 
held that an instrument reading "Re- 
ceived of X $175 in payment of sand 
bar for the year 1890. This is for 
the exclusive right to all gravel and 
sand for the year above named, and 
excluding all other parties from the 
premises," was a lease and not a 
license. In Rollins v. Riley, 44 N. 
H. 9, it was decided that one allow- 
eid by his father to have the use of 
the latter's farm and of one-half the 
house thereon, in consideration of 
his support of the father, was not 
a tenant, since it appeared that the 
father "intended to retain the pos- 
session." And, see, for other cases 
apparently involving an application 
of the same principle. People v. 
Cushman, 1 Hun (N. Y.) 73; Dan- 
iels V. Cushman, 3 Thomp. & C. (N. 
Y.) 125; Brown v. Schiappacassee, 



28 



NATURE OF THE KELATION. 



§7 



as a lease or a license, it is only necessary to determine whether 
the grantee has acquired by it any estate in the land, in respect 
of which he might bring ejectment. If the land is still to be con- 
sidered in the possession of the grantor, the instrnment will only 
amount to a license. "^^^ The same distinction is clearly illus- 
trated by decisions to the effect that one who is given the right 
to go upon another's premises to place signs thereon is a licensee 
and not a tenant ;i^^ and so it has been decided that a railway 



115 Mich. 47, 72 N. W. 1096; Nelson v. 
Howison, 122 Ala. 573, 25 So. 211; 
Carver v. Palmer, 33 Mlch„ 342; Hess 
V. Roberts, 124 App. Div. 328, 108 
N. Y. Supp. 894; Cluett v. Sheppard, 
131 111. 636, 23 N. E. 589; Steel v. 
Frlck, 56, Pa. 172; Henry v. Perry, 
110 Ga. 630, 36 S. E. 87; Shaw v. 
Cummiskey, 24 Mass. (7 Pick.) 76. 

135 Knight V. Indiana Coal & Iron 
Co., 47 Ind. 105, 17 Am. Rep. 692; 
Funk V. Haldeman, 53 Pa. 229. 
Approximately similar language is 
used in Boone v. Stover, 66 Mo. 430; 
Boe d. Hanley v. Wood, 2 Barn. & 
Aid. 736. 

138 Chapman v. Boardman, 69 
Conn. 93; Lowell v. Strahan, 145 
Mass. 1, 12 N. E. 401, 1 Am^. St. Rep. 
422; Reynolds v. Van Beuren, 155 
N. Y. 120, 49 N. E. 763, 42 L. R. A. 
129 (semble) ; Goldman v. New 
York Advertising Co., 29 Misc. 123, 
60 N. Y. Supp. 275; Wilson v- Tave- 
ner [1901] 1 Ch. 578. 

The view is adopted in 0. J. Gude 
Co. V. Farley, 28 Misc. 184, 58 N. Y. 
Supp. 1036, and in Pocher v. Hall, 
50 Misc. 639, 98 N. Y. Supp. 754, 
that the grant of a right to place 
a signboard on property involves a 
lease of the property, while the 
grant of a right to place signs on 
walls or on a signboard already 
erected involves a license. This 
view is in terms based on Reynolds 
V. Van Beuren, 155 N. Y. 120, 49 N. B. 



763, 42 L. R. A. 129, which case at 
most merely suggests such a distinc- 
tion. In San Filippo v. American 
Bill Posting Co., 188 N. Y. 514, 81 
N. E. 463, the court speaks of the 
defendant as having "a formal lease 
which gave to it the right to main- 
tain the signs now on the roof and 
side walls of a certain building," buf 
there was no consideration of the 
question whether more than a li- 
cense was granted. 

In Oakford v. Nixon, 177 Pa. 76, 
35 Atl. 588. 34 L. R. A. 575, an in- 
strument giving such a right is 
spoken of by the court as a "lease," 
and it was decided that the erection 
of a structure by the adjoining own- 
er which shut off the view of the 
wall "leased" was not an eviction 
excusing nonpayment of rent. So in 
Pickering v. O'Brien, 23 Pa. Super. 
Ct. 125, it is clearly decided that an 
instrument giving one the right td 
erect signboards on land constitutes 
a lease. The court isays that "the 
agreement in giving the right to 
maintain the boards, necessarily 
gave him the right to occupy the 
quantum of land required for such 
maintenance." Conceding that a 
lease might be valid though it is left 
to the lessee to locate the particular 
land to be covered thereby (post, 
§ 25 c), the grant in question could 
not be a lease if it gave a right to 
use the land merely for the erec- 



§7 



LICENSEE DISTINGUISHED FROM TENANT. 



29 



company given a right to place a track on certain land was a 
licensee merely .^^^ On the other hand, there are several cases 
in which the distinction above asserted is apparently ignored.^^^* 
For instance, one has occasionally been decided to be a tenant 
at will when, from the nature of the grant under which he has 
entered, it would seem that his grantor retains the right of pos- 
session to the same extent as before, the so-called tenant being 
given the right to enter and occupy for certain purposes only. ^^^ 



tion of signboards. There may,- in 
connection with a lease, be a coven- 
ant on the lessee's part that he shall 
use the premises for a particular 
purpose only, making him liable in 
damages if he uses them for an- 
other purpose (post, § 123 e) ; but so 
far as the conveyance by way of 
lease is concerned, it giving him the 
possession, he may use the land for 
any purpose. 

137 Nowlin Lumber Co. v. Wilson, 
119 Mich. 406, 78 N. W. 338. The de- 
cision is based on the fact that there 
was no exclusive possession given of 
aniy part of the laud, that no rent 
was reserved, and no consideration 
given. The lack of exclusive pos- 
session alone, it is submitted, was 
sufficient to determine that no ten- 
ancy existed. So in Wiggins Ferry 
Co. V. Ohio & M. R. Co., 94. 111. 83, 
it was decided that a company given 
the right to construct and use tracks 
over another's land was not a ten- 
ant, but had merely an easement in 
the land. But in New York Cent. 
& St L. R. Co. v. Randall, 102 Ind. 
453, 26 N. E. 122, it was held that 
a grant to a railroad company of 
the right to construct a track on a 
particular piece of land was not a 
license but a lease. 

In Asher v. Johnson, 26 Ky Law 
Rep. 586, 82 S. W. 300, a grant of a 
right to enter "at the lower end" 
of the grantor's land and construct 



a tramway was regarded as giving 
the grantee the possession of the 
land occupied by the tramway, and 
as consequently creating a tenanay. 

137a In Alexander v. Gardner, 29 
Ky. Law Rep. 958, 96 S. W. 818, it 
was held that one to whom all the 
timber on a tract of land was con- 
veyed, the instrument giving him 
rights of way and all lumbermen's 
privileges, and requiring him to re- 
move the timber within three 
years, and to leave all his fixtures, 
was a lessee, and not a licensee. See, 
also, cases cited in notes 136, 137, 
ante. 

138 So it has been held that a rel- 
ative of the owner, going on the 
premises merely to take charge of 
them, and allowed to live there, is 
such a tenant. Jones v. Shay, 50 
Cal. 508 ; Mahoney v. Farley, 17 N. Y. 
Wkly. Dig. 277. And persons who 
went on premises to take care of the 
owner have also been regarded as 
tenants at will. Herrell v. Sizeland, 
81 111. 457. In White v. Elwell, 48 
Me. 360, 77 Am. Dec. 231, one per- 
son cut another's ha,y and put it 
into the latter's barn, under an agree- 
ment that one-half the hay should 
belong to each, and it was held tEat 
the former was a tenant at will tc 
the latter; and in Duley v. Kelley, 
74 Me. 556, it was decided that if 
the owner of a landing place al- 
lowed another to pile wood there at 



30 NATURE OF THE RELATION. § 7 

And there are some cases in which one to whom permission to 
hold an entertainment or series of entertainments in a public 
hall or auditorium was regarded as a tenant of the hall, or the 
permission was referred to as a lease.^^® This can be so only if 
the proprietor of the hall or auditorium thereby relinquishes all 
right of possession. 

There is one decision to the effect that a person to whom the 
owner of land has given the right to "flow" the land was a 
tenant of the land, i*" while a contrary view has been elsewhere 
asserted. 1*^ The first of these decisions appears to be based on 
an entirely erroneous conception of the nature of a tenancy, it 
being asserted that one may be tenant of land without having 
exclusive possession.i*^ 

c. License to take minerals. One having an estate in land 
may grant to another the right to take minerals therefrom for 
a definite or indefinite period, such right constituting a profit a 
prendre. ^*^ He may, on the other hand, give merely a license 
to take minerals, i** the effect of which is not to confer any 
right in the land or in the minerals but merely to relieve the 

a certain price per cord, tlie latter "a tenancy does not necessarily im- 

was a tenant at will. ply a right to complete and exclusive 

139 See Oxford v. Leathe, 165 Mass. possession; it may, on the other 
254, 43 N. E. 92; Portage Grange v. hand, be created with implied or ex- 
Masonic Lodge, 141 Mich. 402, 12 press reservation of a right to pos- 
Det. Leg. N. 464, 104 N. W. 667; session on the part of the landlord, 
Camp V. Wood, 76 N. Y. 92, 32 Am. for all purposes not inconsistent with 
St. Rep. 382 ; Edwards v. New York the privileges granted to the tenant." 
& H. R. Co., 98 N. Y. 245, 50 Am. No authority is cited to support this 
Rep. 659. statement. 

140 Morrill v. Mackman, 24 Mich. 143 Smith v. Cooley, 65 Cal. 46, 2 
279, 9 Am. Rep. 124. Pac. 880; Stockbridge Iron Co, v. 

141 Johnson v. Skillman, 29 Minn. Hudson Iron Co., 107 Mass. 290; Har- 
95, 12 N. W. 149, 43 Am. Rep. 192. low v. Lake Superior Iron Co., 35 
There may be a "lease," no doubt, Mich. 105; Boone v. Stover, 66 Mo. 
of the right to flow land (Smith v. 430; East Jersey Iron Co. v. Wright, 
Simons. 1 Root [Conn.] 318, 1 Am. 32 N. J. Eq. 248; Grubb v. Bayard, 
Dec. 48. See post, § 24 a), but the 2 Wall. Jr. 81, Fed. Cas. No. 5,849; 
lessee would not be a tenant. One Baker v. Hart, 123 N.. Y. 470, 25 N. 
cannot be the "tenant" of a mere B. 948, 9 L. R. A. 844; Grubb v. 
right to use another person's land. Grubb, 74 Pa. 25. 

142 Cooley, J., in delivering the i« See Inhabitants of Rockport v. 
opinion in Morrill v. Mackman, 24 Rockport Granite Co., 177 Mass. 246, 
Mich. 279, 9 Am. Rep. 124, says that 58 N. E. 1017, 51 L. R. A. 779. 



§ 7 IJCENSE TO TAKE MINERALS. 31 

licensee from liability for taking them so long as the license is 
unrevoked. If, however, a right to take minerals is conferred 
by an instrument sufficient to create a right of profit a prendre, 
that is, to take effect as a common-law grant, it will, it is con- 
ceived, ordinarily be regarded as so operating, and not as con- 
ferring merely a license revocable at the will of the owner of 
the land. Occasionally an instrument operating as a lease or 
demise of land, creating a tenancy therein, contains a provision 
authorizing the tenant to open mines and take minerals from the 
land,i*5 the tenant being thus relieved from the liability for 
waste which he would otherwise have incurred by so doing. ^^^ 
Another mode in which one may acquire rights as regards min- 
erals in land is by a conveyance of them "in place," that is, 
a conveyance of the part of the land consisting of minerals. ^^^ 
It is to be remarked that the courts in discussing grants of rights 
to take minerals use the expressions "license" and "lease" with 
a very considerable degree of looseness, without, indeed, any clear 
line of distinction between them. ^^^ 

A grant merely of a right to take minerals does not, unless it 
is expressly so provided, exclude the owner of the land from also 
taking them, i*® or from making other uses of Ihe land. ^^'^ In 
the case of a lease of the land, on the other hand, the possession 
being in the tenant, the landlord has no right to go upon or into 
the land for the purpose of extracting minerals or for any other 
purpose, except as there may be an express reservation of such 
right in the lease, in which case he would be in the position 

"5 Shaw V. Wallace, 25 N. J. Law Marble Co. v. Ripley, 77 U. S. (10 

(1 Dutch.) 453; Patton v. Axley, 50 Wall.) 339; Stockbridge Iron Co. v. 

N. C. (5 Jones Law) 440; Baker v. Hudson Iron Co., 107 Mass. 290; Sils- 

Hart, 52 Hun, 363, 5 N. Y. Supp. 345; by v. Trotter, 29 N. J. Eq. (2 Stew.) 

Sheets v. Allen, 89 Pa. 47; Brown v. 228; Johnston Iron Co. v. Cambria Iron 

Beecher, 120 Pa. 590, 15 Atl. 608; Co., 32 Pa. 241, 72 Am. St. Rep. 783; 

Ganter v. Atkinson, 35 Wis. 48. Algonquin Coal Co. v. Northern Coal 

"oSee post, § 109 a (11). & Iron Co., 162 Pa. 114, 29 Atl. 402. 

"7 See 1 TifEany, Real Prop. § is" See Smith v. Cooley, 65 Cal. 

219; Barrlnger & Adams, Mines, 36 46, 2 Pac. 880, 52 Am. St. Rep. 305; 

et seq. Stockbridge Iron Co. v. Hudson Iron 

148 Barrlnger & Adams, Mines, 53 Co., 107 Mass. 290; Harlow v. Lake 
et seq. Superior Iron Co., 36 M-ich. 105; 

149 Montjoy's Case, Co. Litt. 164 b, Boone v. Stover, 66 Mo. 430 ; Doe d. 
And. 307, Moore, 197; Chetham v. Hanley v. Wood, 2 Barn. & Aid. 736. 
Williamson, 4 East, 469; Rutland 



32 NATURE OF THE RELATION. § 7 

of one having a right in another's land, or at least a license to 
go thereon. ^^^ 

One having merely a right to take minerals from another 's land 
without being a tenant thereof cannot, it would seem, bring eject- 
ment against one who interferes with the exercise of his right 
by ousting him from the land.^^^ The purpose of the action 
of ejectment is to recover possession of land or of what is re- 
garded as land, and consequently a thing on which an entry 
cannot be made, or of which the sheriff cannot deliver posses- 
sion, such as a mere right to go on another's land to take 
minerals, would seem not to be a proper subject for such an 
action, i^s The person having such a right is not entitled to 
the possession even of the minerals until they are removed by 
him from their natural position in the ground, when they cease 
to be a part of the land and become personalty. It seems some- 
what surprising that there should have been any decision that 
one so entitled merely to take minerals has a right to maintain 
ejectment, but there is at least one decision to that effect in this 
coimtry, ^^* and perhaps more than one in England. ^^^ 

As before stated, the owner of mining land, instead of making 
a lease of the land as a whole, or giving a mere right to take 

151 See ante, § 3 b (1). who shall open and work, and be in 

152 Harlow v. Lake Superior Iron actual possession of any mines, may, 
Co., 36 Mich. 105; Boone v. Stover, if ousted, maintain ejectment with 
66 Mo. 430; Clement v. Toungman, respect to them." Mr. Adams cites in 
40 Pa. 341; Carnahan T. Brown, 60 support of this only Whittingham v. 
Pa. 23. Andrews, 1 Salk. 255, infra, note 

153 See Adams, Ejectment, 18; 155. 

Sedgwick & "Wait, Trial of Title to iss In Comyn v. Kyneto, Cro. Jac. 

Land, i 95. 150, it is decided that ejectment will 

154 In Beatty v. Gregory, 17 Iowa, lie for a coal mine, "for it is a profit 
109, 85 Am. St. Rep. 546, it is held well known, and whereof the law 
that one who has expended money takes bon conusance." That eject- 
under a parol license to mine can ment will lie for a coal mine is as- 
thereafter bring ejectment. The sumed in Harebottle v. Placock, 
court quotes from Adams, Ejectment Cro. Jac. 21, and Whittingham v. 
(p. 20), to the effect that "when a Andrews, 1 Salk. 255, 4 Mod. 143, 
grant of mines is so worded as not to though in the latter case it doesi not 
operate as an actual demise, but appear that the mine did not con- 
only a license to dig, search for, and sist of minerals in place. In Doe d. 
take metals and mineral within a Hanley v. Wood, 2 Barn. & Aid. 724, 
certain district, it seems that a party the court refuses to decide whether 
claiming under such a grant, and 



§ 7 LICENSE TO TAKE MINERALS. 33 

minerals, may transfer the ownership of all the minerals in the 
land or of a defined portion thereof, the ownership of the balance 
of the land or minerals remaining in the grantor. Such a con- 
veyance would ordinarily convey a fee simple estate in the min- 
erals, IS® but sometimes the conveyance in terms undertakes to 
convey an interest for a limited term only. In Pennsylvania it 
is held that though a conveyance is so expressed to be for a 
limited term, it conveys a fee simple estate in the minerals, the 
grantee, however, having a right to remove them during the 
term named only, i^t Jj^ New York this view, that such a con- 
veyance for a limited period passes a fee simple interest, has 
been said to apply, if it is to be accepted at all, only when 
the whole body of minerals is considered as of cubical dimensions 
and is capable of descriptive separation from the earth above 
and around it,is® and, in other states, in discussing such a con- 
veyance for a limited period, no suggestion is made that it is 
other than what it purports to be, a lease for such period, with 
a reversion in the lessor as to so much of the minerals as are 
not mined during that period. ^^^ One to whom the minerals 
in the land are thus conveyed "in place" acquires the right to 
the possession of such part of the land and could no doubt main- 
tain ejectment against one excluding him therefrom. 

a licensee, who had been "actually Wkly. Notes Cas. (Pa.) 365; Kings- 

in possession of" a mine and had ley v. Hillside Coal Co., 144 Pa. 613, 

worked it, could bring ejectment, but 23 Atl. 250; Lazarus' Estate 145 Pa. 

decided that he could not do so If 1, 23 Atl. 372. 

he had not been "In possession." i58 Genet v. Delaware & Hudson 

iseStoughton v. Leigh, 1 Taunt. Canal Co., 136 N. Y. 593, 32 N. B. 

402; Adams v. Ore Knob Co., 7 Fed. 1078, 19 L. R. A. 127. 

634; Williams v. Gibson, 84 Ala. 150 Consolidated Coal Co. v. Peers, 

228, 4 So. 350, 5 Am. St. Rep. 368; 150 111. 344, 37 N. B. 937 (semble) ; 

Manning V. Frazier, 96 111.279; Ches- Hartford Iron Min. Co. v. Cambria 

ter Emery Co. v. Lucas, 112 Mass. Min. Co., 93 Mich. 90, 53 N. W. 4, 32 

424; Warden v. Watson, 93 Mo. 107, Am. St. Rep. 488; Austin v. Huntsvllle 

5 S. W. 605; Hartwell v. Camman, Coal & Min. Co., 72 Mo. 535, 37 Am. 

10 N. J. Eq. (2 Stockt.) 128, 64 Am. St. Rep. 446; Massot v. Moses, 3 S. 

St. Rep. 448; Canfield r. Ford, 28 C. (3 Rich.) 168; Knight v. Indiana 

Barb. (N. Y.) 336; Edwards v. Mc- Coal & Iron Co., 47 Ind. 105, 17 Am. 

Clurg, 39 Ohio St. 41. St. Rep. 692; Cowan v. Radford Iron 

isTMontooth V. Gamble, 123 Pa. Co., 83 Va. 547, 3 S. E. 120. See, 

240, 16 Atl. 594; Sanderson v. Scran- also. Doe d. Hanley v. Wood, 2 Barn, 

ton, 105 Pa. 469; Hope's Appeal, 29 & Aid. 724. 

L. and Ten. 3. 



34 NATURE OF THE RELATION. § g 

§ 8. Lodger distinguished from tenant. 

One occupying a room or rooms in a house under a contract 
by which, while he has the exclusive right of enjoyment of such 
room or rooms, the care of the rooms and other attendance is to 
be furnished by the owner, is not a tenant. "A lodger in a house, 
although he has the exclusive use of rooms in the house, in the 
sense that nobody else is to be there, and though his goods are 
stowed there, yet he is not in exclusive occupation in that sense, 
because the landlord is there for the purpose of being able, as 
landlords commonly do in the ease of lodgings, to have his own 
servants to look after the house and the furniture, and has 
retained to himself the occupation, though he has agreed to give 
the exclusive enjoyment of the occupation to the lodger. Such 
a lodger could not bring ejectment or trespass quare clausum 
fregit, the maintenance of the action depending on the posses- 
sion." i^" In the case from which the foregoing quotation is 
made, it is not explicitly stated that such a lodger is not a tenant, 
but the language used therein is equivalent to such a statement ; 
and in other English cases in which, as in this, the question 
involved was whether a person so enjoying the use of a part of 
certain property was an "occupant" thereof within the "rating" 
statutes, it is expressly or by implication stated that such a 
lodger does not hold as tenant under a demise, i^i So it has 
been said, in determining whether one was the sole occupant 
of a house within an English statute giving the elective franchise 
to such an occupant, that "a lodger was never considered by 
any one as an occupier of the house. It is not the common 
understanding of the word, neither the house, nor even any 
part of it can be properly said to be in the tenure or occupation 
of the lodger." 162 Jq this country, likewise, it is clearly the law 

160 Allen V. Overseers of Liverpool, R. 7 Q. B. 90; Smith v. Lambeth As- 

L. R. 9 Q. B. 180, 192, per Black- sessment Committee, 9 Q. B. Div. 

burn, J. 585, afd. 10 Q. B. Div. 327; London & 

i«i See Smith v. Overseers of St. N. W. R. Co. v. Buckmaster, L. R. 10 

Michael, 3 El. & El. 383; Stamper v. Q. B. 70, 444; Cory v. Bristow, 2 App. 

Overseers of Sunderland-Near-the-Sea, Cas. 262; Roads v. Overseers of 

L. R. 3 C. P. 388; Watkins v. Over- Trumpington, L. R. 6 Q. B. 56. 

seers of Mllton-next-Gravesend, L. B. 102 Lord Hardwick in Fludier v. 

3 Q. B. 350; Queen v. Assessment Lombe, Lee t. Hardw, 307, approved 

Committee of St. George's Union, L. in Cook v. Humber, 11 C. B. (N. 



I 8 LODGER DISTINGUISHED FROM TENANT. 35 

that a mere lodger is not a tenant. "When one contracts with 
the keeper of a hotel or boarding house for rooms and board, 
whether for a week or a year, the technical relation of landlord 
and tenant is not created between the parties. The lodger 
acquires no interest in the real estate. If he is turned out of the 
rooms before the time expires, he cannot maintain ejectment; 
and while he remains, the hotel keeper cannot get his pay by 
distraining as for rent in arrear."i<'3 go it has been decided 
that a lodger has not an interest in land within the meaning of 
the statute of frauds, which he clearly would have were he a 
tenant, i®* 

Though an ordinary lodger is not a tenant, "an entire floor, 
or a series of rooms, or even a single room, may doubtless be let 
for lodgings, so separated from the rest of the house as to become 
in fact and in law the separate tenement of the lessee." ^^^ Such 
a case may occur when one takes rooms in a house without any 
contract or understanding with the owner that the latter is to 
care for the rooms or to furnish attendance, and if the intention 
is that the occupation, as against the owner, shall be exclusive, 
the occupant may, if disturbed by the owner, maintain an action 

S.) 33,46. So in Brewer V. McGowen, lugs at a yearly rent were within 

L. R. 5 C. P. 239, it was said, per the statute of frauds: "As suggest- 

Wllles, J., that the lodger was "clear- ed by the judges in Wright v. Sta- 

]y not a joint occupier of the room vert, 2 El. & El. 721, each appears to 

In which he took his meals," and have been the case of an agreement, 

"with respect to the bed room he which, if perfected by entry, would 

clearly had not an occupation as have amounted to an actual demise, 

owner or tenant, but only an occupa- and would have given the occupant 

tion as lodger." all the possession rights of a ten- 

103 Wilson V. Martin, 1 Denio (N. ant." See Wright v. Stavert, 2 Bl. & 

Y.) 602, per Bronson, J. And see El. 721, and Wilson v. Martin, 1 Denio 

Messerly v. Mercer, 45 Mo. App. 327; (N. Y.) 602, to the effect that such 

Liinwood Park v. Van Dusen, 63 Ohio an agreement is not within the 

St. 183, 58 N. B. 576; Cochran v. Tut- statute, 

tie, 75 111. 361. 185 Per Gray, J., In White v. May- 

164 White v. Maynard, 111 Mass. nard. 111 Mass. 250, 15 Am. Rep. 28, 

250, 15 Am. Rep. 28, where it is said, referring to Newman v. Anderton, 

in reference to Inman v. Stamp, 1 2 Bos. & P. (N. R.) 224; Fenn v. 

Starkie, 12; Edge v. Strafford, 1 Grafton, 2 Bing. N. 0. 617, 3 Scott, 

Tyrw. 293, 1 Comp. & J. 391, which 56; Monks v. Dykes, 4 Mees. & W. 567; 

decided that agreements to take cer- Swain v. Mlzner, 74 Mass. (8 Gray) 

tain apartments in a house as lodg- 182, 69 Am. St. Rep. 244. See, also, 



36 NATURE OF THE RELATION. § 9 

against the latter, not only for breach of contract but in tres- 
pass. ^''^ Such an occupant is properly "a housekeeper and not 
a lodger only."i6^ 

Although it has never in this country been judicially suggested 
that the occupant of a room in an office building might be re- 
garded otherwise than as a tenant, and it has been quite fre- 
quently assumed that he is a tenant, it is somewhat difficult to 
see why he should be in a different legal position from that of 
a lodger. In an office building, as in a lodging house, the pro- 
prietor of the building ordinarily takes care of the rooms, and it 
might be questioned whether the different character of the use 
made of the rooms in the two cases, and the fact that the occupant 
of an office ordinarily supplies his own furniture, would alone 
be sufficient ground for placing different constructions upon an 
agreement, expressed in similar terms, according as- the agree- 
ment is for the use of a room in an office building or of a room 
in a lodging house. In the case of one occupying a room or 
rooms in such a building, as in the case of one occupying a room 
or rooms in a building used for dwelling purposes, the question 
whether he is a tenant v^ould seem to be whether in the par- 
ticular case the proprietor of the bailding has divested himself 
of the possession, and this is to be ascertained with reference to 
the language used and the surrounding circumstances. ^^^ 

§ 9. Servant distinguished from tenant. 

A servant who is occupying land for the purpose of carrying 
out the purpose of his employment is not ordinarily a tenant. A 

to this effect, Oliver v. Moore, 53 in question were used in part for 
Hun, 472, 6 N. Y. Supp. 413; Porter offices. There the fact that the outer 
V. Merrill, 124 Mass. 534. door was in the exclusive control of 
lee Lane v. Dixon, 3 C. B. 776. And the owner of the huilding was re- 
see Stamper v. Sunderland-near-the garded as strong evidence that the 
Sea, L. R. 3 C. P. 388; McDowell control of the entire building was in 
V. Hyman, 117 Gal. 67, 48 Pac. 984. him, and that there was no demise, 

167 Swain v. Mllzner, 74 Mass. (8 but merely a contract for occupancy; 
Gray) 182, 69 Am. St. Rep. 244; hut in the same case the fact that 
White v. Maynard, 111 Mass. 250, 15 a porter or janitor was provided, who 
Am. Rep. 28. was given a key to each apartment 

168 In Reg. V. Assessment Com- so that he might enter if occasion 
mittee of St. George's Union, L. R. 7 arose, was held not to take away 
Q. B. 90, the rooms in the building from the occupants of the apart- 



§ 9 SERVANT DISTINGUISHED FROM TENANT. 37 

servant may be a tenant of his master as to particular property- 
belonging to the latter, ^^^ but in such a case there is a lease or 
demise to him, and the mere fact that a servant is occupying his 
master's land or building, as when he is cultivating the land or 
doing other work thereon, or taking care of the building, does 
not show him to be a tenant, i'^" 

The question whether one who is conceded to be a servant 
is also a tenant as regards particular land belonging to the master 
is discussed elsewhere. ^''^ Occasionally, however, the question 
has arisen whether one is in possession in his own behalf as ten- 
ant, or in behalf of another, as servant or agent of the latter. 
One given the full control of a factory subject to a requirement 
that he should pay to the owner all the profits over a certain 
amount was regarded as a tenant and not an agent, ^^^ as was 
one given control of a factory subject to an agreement to manu- 
facture goods for the ovsmer at a specified price. ^'^^ . Likewise, 
one who was given the use and control of a building under an 
agreement that he should "board" the owner's employees, the 
owner having no interest in the losses or profits but merely agree- 
ing to deduct from each employee's wages the amount of his 

menta the character of tenants, it land for his principal, the possession 

appearing from the language of the is that of the latter. If he uses and 

agreements that he was to be re- controls it in his own behalf with- 

garded as the servant of the various out permission, excluding his prin- 

occupants and not of the owner ot cipal, he is a wrongdoer. If he 

the building. uses and controls it in his own be- 

169 See post, § 48. half by permission, while holding it 

170 "A servant or bailiff, or any as agent in behalf of the principal, 
person occupying land or buildings in such use and control is ordinarily 
a merely ministerial character, does but a form of compensation for 
not acquire possession." Pollock & services. Farrow's Heirs v. Ed- 
Wright, Possession, 56. See, also, mundson, 43 Ky. (4 B. Mon.) 605, 
Xiightwood, Possession of Land, 27; is cited in support of the statement. 
Seymour v. Warren, 86 App. Div. 403, In that case the question was merely 
83 N. Y. Supp. 871; Cook v. Klenk, whether the agent could question hla 
142 Cal. 416, 76 Pae. 57. principal's title or assert adverse 

The statement in Ward v. Small's possession as against him. 

Adm'r, 90 Ky. 198, 13 S. W. 1070, m See post, § 48. 

that "if one takes possession of land its Ault Wooden Ware Co. v. Bak- 

as agent and uses or controls It, the er, 26 Ind. App. 374, 58 N. E. 265. 

relation of landlord and tenant aris- its Fiske v. Pramingham Mfg. Co., 

es," seems incorrect. If one enter- 31 Mass. (14 Pick.) 491. 
ing as agent uses and controls the 



38 NATURE OF THE RELATION. § IQ 

board, was held to be a tenant, there being nothing to show that 
his possession was not to be exclusive, i^* On the other hand, 
one who was to cultivate another's land and to make the crop, 
and receive his compensation out of the proceeds, the surplus 
going to the owner, was regarded as a servant and not a ten- 
ant, I'^s and one who agreed to manage an opera house for the 
owner, receiving a certain sum and a certain portion of the 
profits in addition, was decided not to be a tenant but merely an 
employee or partner, the possession not being transferred.i'^^ 

§ 10. "Cropper" distinguished from tenant. 

Where the owner of land makes a contract with another 
whereby the latter is to cultivate the land and the crops produced 
are to be divided between the two parties in a certain proportion, 
the relation of landlord and tenant may or may not result. The 
question whether it does result is one of intention, to be deter- 
mined upon a construction of the whole instrument if the con- 
tract is in writing, or from the language used by the parties 
and their acts in carrying out the contract if the agreement is 
oral. The various considerations which may operate in this 
connection, and the perplexing questions which may arise under 
such an agreement as to the ownership of the crops pending 
their division, will be reserved for future discussion,!'^^ and it 
is desired in this place merely to point out that the principle 
that only a tenant has possession and that an occupant in another 
capacity has not possession applies in this ease as in others. That 
is, if the agreement involves a lease, making the cultivator of 
the land a tenant, he has the possession,!''* -while if it is a mere 

"4 Lightbody V. Truelsen, 39 Minn. "s Appling v. Odom, 46 Ga. 583; 
310, 40 N. W. 67. That the owner Williams v. Cleaver, 4 Houst. (Del.) 
is not in such case a master, liable 453; Neal v. Brandon, 70 Ar6. 79, 
as such for Injuries to the person in 66 S. W. 200; Hatchell v. Kimbrough, 
possession, see Doyle v. Union Pac. 49 jj. C. (4 Jones Law) 163; John- 
R. Co. 147 U. S. 413. gou y Hoffman, 53 Md. 504; Rees v. 

175 Ferris v. Hoglan, 121 Ala. 240. Baker, 4 G. Greene (Iowa) 461; Chi- 
25 So. 834. And see post, § 10. cago & "W. M. R. Co. v. Linard, 94 Ind. 

iTsMarkowitz v. Greenwall Theat- 319, 43 Am. Rep. 155; Taylor v. 
rical Circuit Co. (Tex. Civ. App.) 75 Bradley, 39 N. Y. 129; Woodruff v. 
S. W. 74. Adams, 5 Blackf. (Ind.) 317, 35 Am. 

17T See post, §§ 20, 253. Rep. 122. 



§ 10 "CROPPER" DISTINGUISHED FROM TENANT. 39 

"cropping contract," the possession remains in the owner."' 
And, conversely, if the agreement shows an intention that the 
possession or the "exclusive possession," as it is frequently 
expressed, i*"* shall remain in the landowner, it does not con- 
stitute a lease making the cultivator a tenant,^*! while if it shows 
an intention that the cultivator shall have the possession or 
"exclusive possession," he is necessarily a tenant.i*^ in one or 
two cases the court refers to this right of possession as one of 
several considerations on the question of the relation of the 
parties, ^^^ but, it is submitted, if their intention in this regard 
is clearly established, it must necessarily be conclusive as to 
the relation. 

179 Hare v. Celey-j Cro. Eliz. 143; he was liable in trespass quare clau- 

Appling V. Odom, 46 Ga. 583; Decker sum f regit if he did so. 

V. Decker, 17 Hun (N. Y.) 13; Gra- "» See ante, § 3 a. 

ham V. Houston, 15 N. C. (4 Dev. »^ Creel v. Kirkham, 47 111. 344; 

^ 000 T^ * a+-)„i,i.>„j ,10 Hansen v. Dennison, 7 111. App. (7 

Law) 232; Denton v. Strickland, 48 „ ,.. , 

„ Bradw.) 73; Gray v. Robinson, 4 

N. C. (3 Jones Law) 61; Fry v. ^^.^ ^^^ 33 ^^^ ^^^. ^^^^^^^^ ^ 

Jones, 2 Rawle (Pa.) 12; SteeLy. B^gj^^eii, 37 Conn. 36, 9 Am. Rep. 

Frlck,_56 Fa. 172; Wanamaker v. 399; state v. Page, 1 Speer Law (S. 

Buchanan, 33 Pa. Super. Ct. 138; c.) 408, 40 Am. St. Rep. 608. 

Cutting V. Cox, 19 Vt. 517; Wood- 182 steel v. Frick, 56 Pa. 172; Al- 

wardy v. Oonder, 33 Mo. App. 147; wood v. Ruckman, 21 III. 200; Dixon 

Warner v. Hoisington, 42 Vt. 94; v. Niccolls, 39 111. 372, 89 Am. Dec. 

Culley V. Taylor, 62 Neb. 651, 87 N? 312; Wentworth v. Portsmouth & D. 

W. 334. R. Co., 55 N. H. 540; Maverick v. 

In Warner v. Hoisington, 42 Vt. Lewis, 3 McCord (S. C.) 2; Rake- 

94, it was said that such a contract straw v. Floyd, 54 S. C. 288, 32 S. B. 

"did not divest the plaintiff (the 419; Whaley v. Jacobson, 21 S. C. 51; 

landowner) of the legal possession Warner v. Abbey, 112 Mass. 355; 

any more than would a contract to Lake v. Sweet, 63 Hun, 636, 18 N. 

permit the defendant to enter upon Y. Supp. 342; Neal v. Brandon, 70 

the field and dig and remove stone, Ark. 79, 66 S. W. 200; Rowlands v. 

or cut and draw away wood or tim- Voechtlng, 115 Wis. 352, 91 N. W. 

her," and It was there held that 990, 60 L. R. A. 585. 

after the crop had been harvested les See Reeves v. Hannan, 65 N. J, 

and the landowner's share had been Law, 249, 48 Atl. 1018; Dixon v. 

set apart in a certain place on the Niccolls, 39 111. 372, 89 Am. Dec 

premises, th^ cropper had no longer 312; Strain v. Gardner, 61 Wis. 174. 

any right to enter on that part, and 21 N. W. 35. 



CHAPTER II. 

THE CLASSES OF TENANCIES. 

§ 11. Freehold tenancies. 

a. Tenancy in fee simple. 

b. Tenancy for life. 
12. Tenancy for years. 

a. The nature of the tenancy. 

b. The commencement of the term. 

(1) May be subsequent to lease. 

(2) Requdrement of certainty. 

(3) Ascertainment of day of commencement. 

(a) Commencement on past day. 

(b) Lease "from the date." 

(c) 'Impossible date for commencement. 

(d) Day of commencement not named. 

(e) In case of oral demise. 

( f ) Commencement on termination of prior lease. 

c. The duration of the term. 

(1) Statutory restrictions. 

(2) Requirement of certainty. 

(a) Lease must show duration. 

(b) Tenancy expiring only on contingency. 

(c) Lease for uncertain number of years. 

(3) Ascertainment of day of expiration. 

(a) General rule of computation. 

(b) Effect of custom. 

(c) Statutory provisions, 
(d^ Inconsistent limitations. 

(e) Oral evidence. 

(f) Lease covering separate tracts. 

d. Contingent expiration — Special limitation. 

e. Option In the lessor to terminate. 

(1) Particular stipulations. 

(2) Theory of operation. 

(3) In case of sale. 

(4) Notice to lessee. 

(5) Compensation to lessee 



THE CLASSES OF TBiNANCIES. 41 

t. Option in the lessee to terminate. 
g. The destruction of the term. 

(1) General considerations. 

(2) Merger. 

(a) The general doctrine. 

(b) Quantum of the reversionary estate. 

(c) Estates held in different rights. 

(d) No merger if estate intervenes. 

(e) In case of interesse termini. 

(f) On transfer under judicial process or decree. 

(g) Effect of contract to convey, 
(h) Partial merger. 

(i) Merger as regards third persons. 

(3) Surrender. 

(4) Forfeiture. 

(5) Eviction. 

(6) Taking under power of eminent domain. 

(7) Bankruptcy. 

(8) Destruction of or injury to premises by unforeseen 

casualty. 

(9) Untenantable condition of premises. 

(10) Expiration of the lessor's estate. 

(11) Destruction of the lessor's estate. 

(12) War and military occupation. 

(13) Death. 

(14) Dissolution of corporation tenant. 
§ 13. Tenancy at will. 

a. When the tenancy arises. 

(1) Lease at will of lessee. 

(2) Lease at will of lessor. 

(3) Permissive ipossession. 

(4) Lease not naming duration of tenancy. 

(5) Tacit acquiescence in another's possession. 

(6) Statutory provisions. 

b. Termination of the tenancy. 

(1) By the landlord. 

(2) By the tenant. 

(3) By death of party. 

(4) By transfer. 

(a) By the landlord. 

(b) By the tenant. 

(5) By special limitation. 

(6) Tenant's rights on termination. 

c. Nature of the tenant's interest. 
14. Periodic tenancies. 

a. General considerations. 

b. When a periodic tenancy arises. 

(1) Under express limitatior 



42 TENANCY IN FEB SIMPLE. §11 

(2) By inference on general letting. 

(a) From payment of periodic rent. 

(b) From reservation of periodic rent. 

(c) Not from general letting alone. 

c. Quarterly, monthly, and weekly tenancies. 

(1) Apart from statute. 

(2) Under statutes. 

d. Transfer of interest. 

e. Mode of termination. 
§ 15. Tenancy at sufferance. 

a. The common-law conception. 

b. Modern conceptions. 

c. Rights and liabilities of tenant. 

§ 11. Freehold tenancies. 

a. Tenancy in fee simple. A conveyance in fee simple, in most 
jurisdictions, as before stated, creates no relation of tenure, it 
having been so expressly provided by the statute Quia Emptores^ 
and if the grantee is to be regar'ded as tenant at all, in the 
sense of holding under another, he is tenant under the state. 
The fact that a rent is reserved upon the conveyance cannot 
make the conveyance operate as creating a tenure, and, conse- 
quently, it is not strictly proper to say that the relation of land- 
lord and tenant exists between the grantor and grantee upon a 
com'eyanee in fee simple reserving rent. In New York, though 
it is recognized that no right of reverter or escheat remains in 
the grantor in the case of such a conveyance, ^ the courts have 
occasionally referred to the grantor and grantee as standing in 
the relation of landlord and tenant, apparently on the erroneous 
theory that any person to whom rent is payable by another is 
the landlord of such other.* And a conveyance in fee simple 
reserving rent has occasionally been referred to as a "lease" or 
a "perpetual lease."* In Pennsylvania, the statute of Qiim 

1 Ante, § 1. Barb. (N. Y.) 104; Tyler v. Heidorn. 

"- De Peyster v. Michael, 6 N. Y. 46 Barb. (N. Y.) 439. 
(2 Seld.) 467; Van Rensselar v. * See Polts v. Huntley, 7 Wend. 

Hays, 19 N. Y. 76, 75 Am. St. Rep. (N. Y.) 210, and cases cited in Tyler 

278; Van Rensselaer v. Read, 26 N. v. Heidorn, 46 Barb. (N. Y.) 439. 

Y. 558; Van Rensselaer v. Dennison, Compare Towle v. Remsen, 70 N. Y. 

35 N. Y. 393. 303. The expression "perpetual 

3 Van Rensselaer v. Read, 26 N. Y. lease" is used In Atkinson v. Orr, 

558; Van Rensselaer v. Smith, 27 83 Ga. 34, 9 S. E. 787. 



§ 11 TENANCY FOR LIFE. 43 

Emptores is apparently not in force, and there, it seems, the rela- 
tion of landlord and tenant might be regarded as existing between 
the grantor and grantee in such a conveyance without reference 
to whether a rent is reserved.^ 

In a number of states there are statutes prohibiting a grant of 
land reserving a rent for more than a specified number of years, " 
and these would obviously preclude a conveyance in fee reserving 
a rent. 

b. Tenancy for life. The relation of landlord and tenant 
is created by a conveyance, by one having a greater estate, of 
an estate for the life of the grantee, or for the life or lives of 
some other person or persons, or for the lives of the grantee and 
of some other person or persons.'' Such a lease "for life" or 
"for lives" occiirs quite occasionally in England, but in this 
country is most unusual, a person creating a life estate ordinarily 
disposing of his whole interest by the same instrument by way 
of remainder, in which case no reversion exists and no relation 
of landlord and tenant is created. ^ The principles determining 
the mutual rights and liabilities of the landlord and tenant are 
the same when the relation is created by a lease for life as 
when created by a lease for any other period. 

At common law a lease for life, as it involves the creation of a 
freehold estate, was valid only if accompanied by livery of seisin, 
but, if so accompanied, no words of limitation were necessary, 
the rule being that in the absence of such words a conveyance 
sufficient to pass a freehold created a life estate in the grantee. * 

5 Cadwallader, Ground Rents, c. 1; estate for life." Co. Litt. 42 a. So 
Gray, Perpetuities, § 16. It is said in Comyn, Landl. & Ten. 

6 See post § 12 c (1). (at p. 6), that "sometimes a demise 
f See Challis, Real Prop. (2d Ed.) of lands is made without any limi- 

311-331, as to the various classes of tation in respect of time. Where the 
estates for life or lives. form of the grant is such as will 
8 Challis, Real Prop. 22. pass an estate of freehold, it will, 
Litt. § 1; Co. Litt. 8 b; 2 Blackst. though indefinite as to time, operate 
Comm. 121. as an estate for life." In Com. Dig., 
"If one grant lands or tenants, Estates- (E 1), it is said that an es- 
reversions, remainders, rents, advow- tate for life is created "if lands are 
sons, commons, or the like and ex- demised or granted to a man, gen- 
press or limit no estate, the lessee erally, and delivery be made"; and 
or grantee (due ceremonies requisite in Bac. Abr., Estate for Life (A), 
by law being performed) hath an that "If a man leases lands to an- 



44 TENANCY FOR LIFE. §11 

At the present time the necessity of livery in order to create such 
an estate no longer exists, but certain formalities are necessary in 
the execution of the conveyance, differing in the different states. 
Provided these requirements are satisfied, a lease to a person with- 
out words of limitation would, as at common law, create an estate 
for life, ^o unless, in view of local statutes dispensing with words 
of inheritance for the creation of an estate in fee simple, the 
conveyance be construed as passing an estate of the latter charac- 
ter. 11 

Doubt has been expressed whether a lease for life reserving 
rent is within a statutory provision, such as we have before re- 
ferred to,i2 prohibiting a grant or lease reserving rent for a 
period greater than a named number of years, i* 

The common-law rule that an estate of freehold cannot be 
created to take effect in futuro^* presumably still precludes, in 
a considerable number of jurisdictions, a lease for life which is 
not immediately to vest in possession. 

A lease for life which fails to mention wJiose life will be 
regarded as one for the life of the grantee, though if the lessor 
might rightfully create an estate for his own life, but not for the 
life of the lessee, it will be construed as for the former's life, i** 
A lease to one during the lives of two other persons will continue 
until the death of the survivor of such persons, i*" and a like 

other without saying how long the 325; Jordan v. Neece, 36 S. C. 295, 

lessee shall enjoy them, he shall 15 S. E. 295, 31 Am. St. Rep. 869; 

have them for his own life, if livery Hunter v. Bryan, 24 Tenn. (5 

he made, because every man's gift Humph.) 47; Taylor v. Cleary, 29 

is taken most strongly against him- Grat. (Va.) 448; Gray v. Packer, 4 

self, and for the benefit of the gran- Watts & S. (Pa.) 17. 

tee, to avoid all equivocation." n See 1 Tiffany, Real Prop. §§ 20, 

10 Doe d. Dixie v. Davies, 7 Exch. 31. 

89; "Wood v. Davis, 6 L. R. Ir. 50; 12 See ante, § 11 a. 

Curtis V. Gardner, 54 Mass. (13 is See Parish v. Rogers, 20 App. 

Mete.) 457; Edwardsville R. Co. v. Div. 279, 46 N. Y. Supp. 1058; Weg- 

Sawyer, 92 111. 377; Clearwater v. ner v. Lubernow, 12 N. D. 95, 95 N. 

Rose, 1 Blackf. (Ind.) 137; Adams W. 442, 102 Am. St. Rep. 572. 

v. Ross, 30 N. J. Law, 505, 82 Am. 1* Challis, Real Prop. (2d Ed.) 93; 

St. Rep. 237; Miles' Lessee v. Fisher, Co. Litt. 217 a. 

10 Ohio, 1, 36 Am. Rep. 61; Jack- i*a Co. Litt. 42 a. 

son V. Van Hoesen, 4 Cow. (N. Y.) i^b Brudnel's Case, 5 Coke, 9 a. 



§ 12 TENANCY FOR YEARS. 45 

construction has been put on a lease for "the life" of the 
lessees.^*" 

A tenancy for life may be subject to a "special limitation," 
the effect of which is to terminate the estate upon the happen- 
ing of a particular contingency named before the death of the 
person by whose life the tenancy is otherwise measured. So a 
lease might be made to one to continue so long as he resides on 
tlie premises, or to a widow so long as she remains iinmarried 
or conducts herself properly, in which case the lessee would have, 
at common law, an estate for life subject to termination upon a 
change of residence, remarriage or improper behavior, respec- 
tively.i*"" 

§ 12. Tenancy for years. 

a. The nature of the tenancy. Tenancy "for years" is not, 
as might be inferred from its name, necessarily a tenancy for a 
certain number of years, but the expression is applied to any 
tenancy for a certain time, as for one or more years, for a half 
or quarter of a year, for a month, or for any greater or less 
period of a fixed duration. ^^ 

The estate or interest of the tenant for years is frequently 
called a "term," from the Latin word terminus, and this word 
is also used to describe the period of time during which the estate 
or tenancy is to continue.^" The tenant's interest is also not 
infrequently spoken of as a lease, thus "putting, by a sort of 
metonymy, the instrument by which an estate for years is granted 
for the estate itself." ^"^ 

ticKenney v. Wentworth, 77 Me. v. Vaughan, 6 Dowl. & R. 349; Cottee 

203. V. Richardson, 7 Exch. 143; Grizzle 

i*a Co. Litt. 42 a, 214 b. See post, v. Pennington, 77 Ky. (14 Busli) 

§ 12 d. 115; St. Joseph & St. L. R. Co. v. St. 

15 Litt. §§ 58, 67; 2 Blackst. Comm. liouls, I. M. & S. R. Co., 135 Mo. 173, 

140; 1 Cruise's Dig. tit. 8, c. 1, § 3; 36 S. W. 602, 33 Am. St. Rep. 607; 

Stoppelkamp v. Mangeot, 42 Cal. Young v. Dake, 5 N. Y. (1 Seld.) 463, 

316; Brown's Adm'rs v. Bragg, 22 55 Am. Dec. 356; Finkelmeier v. 

Ind. 122; Casey v. King, 98 Mass. Bates, 92 N. Y. 172; Baldwin r. Thlb- 

503; Shaffer v. Sutton, 5 Bin. (Pa.) adeau, 28 Abb. N. C. 14, 17 N. Y. 

228. Supp. 532; Harding v. Seeley, 148 

18 See Co. Litt. 45 b; 1 Cruise's Pa. 20, 23 Atl. 1118. 
Dig. tit. 8, c. 1, § 6; Rector of Ched- it Heydrlck, J., in Harding v. 

ington's Case, 1 Coke, 153 a; Wright) Seeley, 148 Pa. 20, 23 Atl. 1118. 
V. Cartwright, 1 Burrow, 282; Evans 



46 TENANCY FOR YEARS. . § 12 

The interest of a tenant for years has always been regarded 
as personal and not real property, passing to the personal repre- 
sentatives of the tenant and not to the heir. ^^ Consequently, 
such interests are frequently referred to as chattels real. In 
one or two states, however, there are statutory provisions modify- 
ing this view. ^* 

This misuse, if it majy be so See Moss Point Lumber Co. v. Harri- 

termed, of the word "lease," is not son County, 89 Miss. 448, 42 So. 290, 

of recent origin. In Sheppard's 873. 

Touchstone, 266, it is said: "This lo Ga. Code 1895, § 3109 (An estate 

word (lease) also is sometimes, al- for years passes as real estate), 

though improperly, applied to the Mass. Rev. Laws 1902, c. 129, § 1 

estate, i. e., the title, time or in- (if land is demised for the term of 

terest the lessee has to the thing one hundred years or more, the term, 

demised, and then it is rather re- so long as fifty years thereof remain 

ferred to the thing taken or had unexpired, is to be regarded as an 

and the interest of the taker there- estate in fee simple as regards the 

in." descent and devise thereof, as well 

IS Co. Lift. 118 a; 2 Blackst. Oomm. as in certain other connections). 

386; 2 Pollock & Maitland, Hist. Eng. Ohio Rev. St. 1906, § 4181. (Perma- 

Law, 115, 329; JefEers v. Easton, El- nent leasehold estates, renewable 

dridge & Co., 113 Cal. 345, 45 Pac. forever, subject to the same laws of 

680; Goodwin v. Goodwin, 33 Conn, descent as estates, in fee.) 

314; Lenow v. Fones, 48 Ark. 557, 4 m Colorado, the general provision 

S. W. 56; Lake v. Campbell, 18 III. t^at, in the construction of the stat- 

106; Shipley v. Smith, 162 Ind. 526, ^eg^ the words "land" or "lands" and 

70 N. E. 803; Cade v. Brownlee, 15 the words "real estate" shall be con- 

Ind. 369, 77 Am. Dec. 95; Averill v. g^rued to include lands, tenements 

Taylor, 8 N. Y. (4 Seld.) 44; In re and hereditaments, and all rights 

Gay, 5 Mass. 419; Hutchinson v. thereto and all interests herein, and 

Bramhall, 42 N. J. Eq. 372, 7 Atl. the substantially similar provisions 

873; Lewis' Heirs v. Ringo, 10 Ky. jq the chapters on conveyances and 

(3 A. K. Marsh.) 248; Paler v McRae, executions, were regarded as showing 

56 Miss. 227; Mulloy v. Kyle, 26 Neb. that an estate for years was to be 

313. 41 N. W. 1117; Keating v. Con- regarded, upon the tenant's death, 

don, 68 Pa. 75. It is immaterial that as real and not as personal property, 

a privilege of purchase in fee is giv- ^cKee v. Howe, 17 Colo. 538, 31 Pac. 

en the lessee. Hazard Powder Co. v n5. And so in Tennessee a provi- 

Loomis, 2 Disn. (Ohio) 544. gjo^ that " 'real estate,' 'real prop- 

A lease for ninety-nine years, re- erty,' 'land,' shall include lands, ten- 
newable forever, creates an interest ements, and hereditaments, and all 
constituting part of the personal rights thereto and interests there- 
assets of the lessee. Doe d. Allender in,' " was held to render a leasehold 
V. Sussan, 33 Md. 11, 3 Am. Rep. "real estate." Kelley v. Shultz, 59 
171; Murdock v. RatclifE, 7 Ohio, 119. Tenn. (12 Heisk.) 218. 



§ 12 NATURE OF THE TENANCY. 47 

Formerly, one to whom a lease for a term of years was made 
was regarded as having merely a right of action against the 
lessor on his covenant in case of wrongful ouster by the latter, 
and no right of action against a third person wrongfully ejecting 
him, that is, he had rights in personam merely and not in rem. 
Early in the thirteenth century, however, by the introduction of 
the writ of quare ejecit infra terminum, the lessee was given the 
right to recover the land as against a grantee of the lessor, and 
later he was given a right of action when ejected as against all 
the world by the writ of ejectione firmae, this latter writ being 
that on which the later action of ejectment was based. 2" At 
first this latter writ was regarded as giving a right to the lessee 
to recover damages only against the person interfering with his 
possession but, eventually about the middle or latter part of the 
fifteenth century the courts began to give judgment in his favor 
for possession as well as for damages.^i ' ' Thus the interest of the. 
termor or lessee for years, instead of resting at best upon a cove- 
nant with his lessor, and therefore being enforceable only as 
against him, became a right of property which could be enforced 
against any wrongdoer, by a remedy analogous to that provided 
for a wrongful ouster of a freeholder from his possession, and thus 
these interests became estates or rights of property in land."** 
But even after the property rights of the lessee for years became 
thus established for most purposes, the "term" could still in 
some cases be destroyed at the will of the reversioner having 
the freehold by the latter 's suffering a default to go against him 
in a collusive action (common recovery), in which the lessee for 
years, having no freehold, could not intervene, *^ and it has 
been suggested that until this state of things was remedied by a 
statute passed in the second quarter of the sixteenth century, ** 
the lessee for years eould not well be regarded as having an 

20 Adams, Ejectment, 2; Digby, & E. 750. See, also, Adams', Eject- 
Hist. Real Prop. (4th Ed.) 175; ment, 3; Smith, Landl. & Ten. (3d 
"The Seisin of Chattels" biy Prof. Ed.) 120. 

Maitland, 1 Law Quart. Rev. 335 et 22 Digby, Hist. Real Prop. (4th 

seq.; 2 Pollock & Maitland, Hist. Ed.) 176. 

Eng. Law, 106 et seq. 23 Co. Litt. 46 a; 2 Co. Inst. 321, 

21 The old authorities bearing on 322. 

the question are collected in the note 24 2I Hen. 8, 0. 15 (A. D. 1529). 
to Doe d. Poole v. Errington, 1 Adol. 



48 TENANCY FOR YEARS. § 12 

estate, since "an estate which could not, by the common law, 
be defended at law, seems at common law to have been no 
estate." 25 

b. The commencement of the term— (1) May be subsequent 
to lease. A lease for years, not involving any transfer of the 
seisin, was never subject to a rule similar to that which, at com- 
mon law, precluded the creation of an estate of freehold to take 
effect in futuro?^ and so, at the present day, the term may be 
made to commence either on the date of the delivery of the lease 
or on a subsequent date. 

A term of years to commence in futuro is not an estate but 
merely an interesse termini.^'' So if one makes a "reversionary 
lease, ' ' that is, a lease to take effect in possession after the expira- 
tion of an existing tenancy, the lessee has a mere interesse ter- 
mini.^^ 

Such an interest may be assigned, ^^ but it cannot, it is said, 
be surrendered otherwise than by implication of law. *° It will 
not merge in a greater estate unless it becomes itself an estate 
while it and such estate are vested in one person, ^i nor will an 
estate merge in it. ^^ 

(2) Requirement of certainty. It is said that the date of 
the commencement of the term must be certain,^^ ^^^^ n jg seldom 
that the courts have regarded a lease as lacking in the element 
of certainty in this respect, and it seems reasonable to conclude 
that an uncertainty arising from the use of indefinite language in 
specifying the time of commencement will have no greater effect 
than an uncertainty arising from the absence of any statement 

25 CTiallis, Real Prop. (2d Ed.) 47. (1 Seld.) 463, 55 Am. Dec. 356; 

28 2 Elackst. Comm..l43, 1 Cruise's 2 Preston, Conveyancing, 149. 
Dig. tit. 8, c. 1, § 18; Young v. Dake, 2s Smith v. Day, 2 Mees. & W. 684; 
5 N. Y. (1 Seld.) 463, 55 Am. Dec. Lewis v. Baker [1905] 1 Ch. 46. 
356; Elliott v. Stone, 67 Mass. (1 ^° Bro. Abr., Grants, pi. 110; Plow- 
Gray) 571; Field v. Howell, 6 Ga. ^^^- arguendo, in Browning v. Bes- 
423; Johnston v. Corson Gold Min. t'"^' ^^°^^- ^^^ ^• 

n ,r^ r, ^ ^ -.rr, T^ , -,,„ ^0 Co. Litt. 338 a. 

Co. (C. C. A.) 157 Fed. 145. „, t^ ^ .n. ,. „. ,, 

„ . ^ ^ „ , „ „ , '^ I3oe d. Rawhngs v. Walker, 5 

2T Smith V. Day, 2 Mees. & W. 684; ^^^^ & c 111 

Copeland v. Stephens, 1 Bam. & Aid. ,^ HydeV. Warden, 3 Exch. Div. 72. 

593, 606; Joyner v. Weeks [1891] 2 ss Co. Litt. 45 b; Sheppard's Touch- 

Q. B. 31; Young v. Dake, 5 N. Y. stone, 272; 2 Piatt, Leases, 50. 



§ 12 COMMENCEMENT OF THE TERM. 49 

whatever in this regard,*^'' causing the term to commence upon 
the nominal date or upon the date of delivery.^^'' 

The time of the commencement of the term need not be ascer- 
tained at the date of the execution of the lease, but it is suffi- 
cient if it can be ascertained when such time arrives, in accord- 
ance with the maxim id certum est quod cerium reddi potest. Ac- 
cordingly, a term may be created to commence on the death of a 
third person named,** on the death of the lessor himself,*'' on the 
expiration or sooner termination of a term already existent, ** 
upon the payment by the lessee of a certain sum to the lessor, *^ 
upon the completion of a building on the premises, ^^ or when 
the premises are made suitable for occupation.** In North Caro- 
lina, however, it has been decided that a lease to commence when 
the lessee begins to cut timber on the premises is void as failing 
to fix the time for commencement of the term with sufficient 
certainty. ^'^ 

(3) Ascertainment of day of commencement — (a) Commence- 
ment on past day. The lease may name a day which is past as 
that of the commencement of the term. *i In such case the lease 
has regard to that date for the purpose of computing the end 

ssaSee post, § 12 t) (3) (d). 313; McCIain v. Abshire, 72 Mo. 

ssij In Jenkin's Centuries, 301, case App. 390. • 

69, it is said that if the date of 4o Gay Mfg. Co. v. Hobbs, 128 N. 

commencement is uncertain the term q. 46, 38 S. E. 26. In this case there 

will commence immediately. In ^^^ ^ ^^^^ pj standing timber, with 

Anonymous, 1 Mod. 180, the judges ^ ^^^^^ ^^ ^^^ purchaser to have five 
were equally divided upon this point. 
See post; at notes 57- 59 a. 

3* Goodright V. Richardson, 3 Term 
R. 462. 

35Bro. Abr., Grants, pi. 154; Grute 

V. Locroft, Cro. Eliz. 287; 2 Piatt, ^^i" *« to its commencement 

Leases, 50. *^ Enys v. Donnithorne, 2 Burrow, 

36 Bishop of Bath's Case, 6 Coke, 1190. , 

34 b. See post, § 12 b (3) (f). In Bird v. Baker, 1 EI. & El. 12, 

ST Co. Litt. 45 b. where there was a lease for fourteen 

38 Colclough V. Carpeles, 89 Wis. years from a date past, it was held 
239, 61 N. W. 836; Hammond v. Bar- that a provision authorizing either 
ton, 93 Wis. 183, 67 N. W. 412; Noiyes party to terminate the "demise at 
V. Longhead, 9 Wash. 325. the expiration of the first seven 

39 Murray v. Cherrington, 99 Mass. years thereof" authorized such a 
229; Clarke v. Spanlding, 20 N. H. termination seven years from such 

L. and Ten. 4. 



years from the time at which he be- 
gan to cut it in which to remove it, 
and it was held that this was a 
lease for a term of five years, uncer- 



50 TENANCY FOR YEARS. § 12 

of the term only, and it takes effect in point of interest not at 
such past date, but at the time of delivery .** 

(b) Lease "from the date." There have been numerous deci- 
sions upon the question whether a tenancy in terms limited "from 
the date," "from the day of the date," "from the making," 
"from the time of the making," or in like terms, was to be 
regarded as commencing on the day of the date or on the day 
next following the date. This question frequently arose in the 
older English cases in connection with a lease for life, which was 
void if the tenancy was to commence on the day after the making, 
as involving the creation of a freehold in futuro*^ but the ques- 
tion has not infrequently arisen in connection with a tenancy for 
years in ascertaining the last day of the tenancy. The older 
English decisions upon the question were exceedingly contra- 
dictory, and it was finally determined, in a case frequently 
referred to,^* that no absolute rule can be laid down but that 
such expressions are to construed as exclusive or inclusive of the 
day of the date, according to the text and subject-matter, so as 
best to effectuate the intention of the parties, and to support 
rather than defeat the instrument. In this country, likewise, 
there are decisions to the effect that the question whether such 
expressions are inclusive or exclusive of the date is one of the 
construction of the particular instrument to be resolved by 
reference to the context and surrounding circumstances.*^ Thus, 
the fact that installments of rent are made payable on days cor- 
responding to the day of the date has been regarded as ground 
for construing such a lease as creating a term commencing on 
that date,*® as has the fact that possession was delivered on 

date, and not from the date of the N. Y. 253, 45 N. E. 556; Hlgglns v. 
lease. Halligan, 46 111. 173; Donaldson v. 

42 Shaw v. Kay, 1 Exch. 412 ; Jervis Smith, 1 Ashm. (Pa.) 197. 

V. Tomkinson, 1 Hurl. & N. 195; *eMeeks v. Ring, 51 Hun, 329, 4 

Cooper V. Robinson, 10 Mees. & W. N. Y. Supp. 117; Deyo v. Bleakley, 

694. 24 Barb. (N. Y.) 1. But in Ackland 

43 The older cases are enumerated v. Lutley, 9 Adol. & E. 879, it was 
in 2 Piatt, Leases, 55, and In tbe considered that the fact that the rent 
opinions in the cases next referred was payable on days corresponding 
to. to the date of the lease was ground 

44 Pugh V. Leeds, Cowp. 714. See for construing the lease as creating 
Ackland v. Lutley, 9 Adol. & E. 879. a term to begin the next day, since 

4s See Buchanan v. Whitman, 151 otherwise the last installment of rent 



§ 12 COMMENCEMENT OF THE TERM. 51 

that day,*'' or that it was understood that it should be then 
delivered,*^ and the custotn of the community may be controlling 
in this connection.** But occasionally the cases have under- 
taken to assert a rule on the subject, to apply at least in the 
absence of any thing in the context or surrounding circum- 
stances to aid in determining the intention of the parties, it being 
stated sometimes that a tenancy for a certain period "from 
the date" of the lease commences on that date,*"* and some 
times that it commences on the following day.*i The question 
would seem to involve, to a considerable extent, the application 
of the general rule prevailing in that particular jurisdiction in 
regard to the computation of time from a particular date or 
event. 

The question whether a le.ase expressed to run "from" a par- 
ticular date named, other than the date of the lease, creates a 
tenancy commencing on that date is likewise, it seems, a ques- 
tion of the construction of the particular instrument.^^ 

The cases do not discuss the question whether, when the date 
of the lease as named and the actual date of the delivery of the 
lease are different, such an expression as "from the date" 
refers to the former or the latter. The expressions "from the 
making" and "from henceforth" have been regarded as referring 

would not be payable until the day bi Goode v. Webb, 52 Ala. 452; At- 

after the last day of the term. This kins v. Sleeper, 89 Mass. (7 Allen) 

case is followed in McCallum v. 487. 

Snyder, 10 U. C. C. P. 191. 52 in Gray v. Shields, 26 Nova 

47 Buchannan v. Whitman, ISl N. Scotia, 363, it was held that a lease 

Y. 253, 45 N. E. 556. "from the 30th of April" created a 

*8 Meeks v. Ring, 51 Hun, 329, 4 N. tenancy commencing the day after 

Y. Supp. 117. the day named. 

*« Wilcox V. Wood, 9 Wend. (N. Y.) in I. X. L. Furniture & Carpet In- 

346; Goode v. Webb, 52 Ala. 452; stallment House v. Berets, 32 Utah, 

Fox V. Nathans, 32 Conn. 348. See 454, 91 Pac. 279, where the lease wa<3 

post, § 12 c (3) (b). expressed to be "from Dec. 1, 1904, 

BO Buchanan v. Whitman, 76 Hun, to Dec. 1, 1906, a term of two years," 
67, 29 N. Y. Supp. 604, distinguishing whether it began on the first or sec- 
Mack V. Burt, 5 Hun, 28, where the ond day of the month was regarded 
term was to begin "from and after" as a question of construction to be 
a certain date; Donaldson v. Smith, settled by reference to the tfme that 
1 Aphm. (Pa.) 197; Marys v. Ander- possession was actually given and 
son, 24 Pa. 272; Nesbit v. Godfrey, taken. 
155 Pa. 251, 25 Atl. 621. 



52 TENANCY FOR YEARS. § 12 

to the date of delivery rather than to the nominal date.^^ And 
the day of delivery and not the nominal date have been re- 
garded as the time with reference to which to compute the com- 
mencement of the term when limited to commence on a certain 
day of March "now last past. "s* On the other hand, it is said 
that if the lease contains a possible and sensible date, a reference 
to the date means, prima facie at least, the date named and not 
that of delivery.^5 And it would seem ordinarily in conformity 
with the intention of the parties, when they state that the term is 
to endure for a certain period, "from the date" of the lease, to 
construe this as referring to the date named by them in the 
lease rather than to the date on which the lease may happen to 
be delivered. The lease cannot indeed take effect in point of 
interest before delivery, but as before stated, it may so take effect 
for the purpose of computing the period of enjoyment.^® 

(c) Impossible date for commencement. It is said that if 
the term be limited to begin from an impossible date, such as the 

53 Clayton's Case, 5 Coke, 1, where of March, 1802, for the purpose of 
it is said that " 'from henceforth' upholding the lease, which was made 
should be accounted from the day under a power to make leases in 
of the delivery of the indentures, and possession and not in futv.ro. 

not by any computation of date, for 55 Styles v. Wardle, 4 Barn. & C. 

'from henceforth' is as much as to 908. 

say 'from the making or from the se That the word "date" in such 
time of the delivery of the inden- case refers to the nominal date 
tures,' or 'a confectione praesent- would seem to be the opinion of 
ium'; for the confection or making C!oke, who saiys (Co. Litt. 46 b) that 
of tie lease does begin by the de- "if a lease be made by indenture, 
livery, and these words ('from hence- bearing date the twenty-sixth of May, 
forth'), or any other words of the etc., to have and to hold for twenty- 
indenture, are not of any effect or one years from the date, or from the 
force until delivery." Compara day of the date, it shall begin on 
Hicks V. Harvey, Comb. 399, where the twenty-seventh day of May. K 
it is said that to hold from date and the lease bear date the twenty-sixth 
from making is all one. day of May, etc., to have and to 

54 Steele v. Mart, 4 Barn. & C. 272. hold from the making hereof, or 
In Doe d. Cox v. Day, 10 East, 427, from henceforth, it shall begin on 
it was decided that where a lease the day on which it is delivered, for 
was dated February 17, 1802, to hold the words of the indenture are not 
from the 25th of March next ensn- of any effect until the delivery, and 
Ing, but was not executed until the thereby from the making, or from 
following April, the term might be henceforth, take their first effect.'' 
construed to commence on the 25th Thus he distinguishes in this re- 



§ 12 COMMENCEMENT OF THE TERM. 53 

thirtieth day of February or the fortieth day of March, it shall 
begin from the delivery as if there had been no date at all,^'^ 
and a rather delicate distinction has been taken between such 
a case and one in which the term is Limited to begin on a certain 
day in a certain month without naming the year, the lease being 
regarded as void in the latter case for lack of certainty as to 
the time of the commencement of the term.^s At the present 
day a lease of the latter class would presumably be upheld as 
creating a term to commence either on its delivery ^^ or on the 
next ensuing day corresponding to the day named.^®" 

(d) Day of commencement not named. When no time is 
named for the commencement of the term, it will ordinarily 
commence upon its nominal date if this is the same as the date 
of delivery .60 But in case the date of delivery is different from 
that inserted in the instrument of lease, there arises the question 
which date is to control. It is said by Coke that "if the haben- 
dum be for the term of twenty-one years, without mentioning 
when it shall begin, it shall begin on the day on which it is deliv- 
ered, for there the words take effect. ' '^^ But in this case, as when 
the term is limited to commence "from the date," it would seem to 
be quite as conformable to the probable intention of the parties to 
consider the date named by them as that of the commencement 
of the term for the purpose of computation-^^ There are several 
cases ^^ in which it is said that the term will commence, if no 
time of commencement is stated, on the date of the lease, but in 
all these the nominal date and that of delivery were, so far as 
appears, the same. 

Occasionally, it seems, even though the lease does not name any 
date for the commencement of the term, it will commence on 

gard between the "date" and the Doe d. Cox v. Day, 10 East, 427, ante, 

"making" of the lease. note 54. 

57 Co. Lltt. 46 b; Bac. Abr., Leases eo See citations in the three fol- 

(L. 1). lowing notes. 

B8 Anonymous, 1 Mod. 180. ei Co. Litt. 46 b. 

^B See 2 Piatt, Leases, 65. 62 See ante, at note 55. 

E9aln Huffman v. McDanlel, 1 Or. ea Doe d. Phillip v. Benjamin, 9 
259, it was held that a lease "from Adol. & E. 644; Furness v. Bond, 4 
day of , A. D. 1856," for a Times Law R. 457; Sandill v. Frank- 
term of eighteen months, expired at lin, L. R. 10 C. P. 377; Keyes v. 
furthest eighteen months from the Dearborn, 12 N. H. 62. See Donald- 
last day of the year 1856. Compare son v. Smith, 1 Ashm. (Pa.) 197. 



54 TENANCY FOR YEARS. § 12 

neither the nominal date of the lease, nor on the date of delivery, 
in view of provisions in the lease showing a different intention. 
Thus, it has been decided that the dates named for the periodical 
payment of rent might show that it was intended that the term 
should commence on a corresponding date.^*- ^^ But if the lease 
clearly states the day of the commencement of the term, this 
cannot be affected by the times named for the payment of rent.^^ 
And it makes no difference that the lease is not executed till the 
day named, so that the tenant does not enjoy the possession for 
the whole of that day.^'^ 

(e) In case of oral demise. Ordinarily, in the case of an 
oral letting, the lease has been regarded as taking effect from the 
time the tenant's entry thereunder .«* It has, howe|t|r, been 
decided in England that when one entered between the regular 
quarter days, and upon the next quarter day paid a proportion- 
ate part of the rent, and thereafter paid upon the regular quarter 
days, his tenancy should be regarded as commencing with the 
first quarter day following his entry.^^ 

In one case in this country it is said that in determining when 
a verbal lease began the jury may consider the time of entry, 
the time from which the lessee paid the rent, and all the other 
circumstances,^" and this would seem a proper and reasonable 
view of the matter.''^ 

(f) Commencement on termination of prior lease. If a lease 
is made in terms to commence upon the termination of a previous 
lease, the tenancy will begin immediately if there is no such 
previous lease, and if the term created by the previous lease 
terminates prematurely, the term created by the second lease will 
then begin.^2 ^ ]ease of land which is to begin at the termination 

64, 65 Sandill v. Franklin, L. R. 10 eo Doe d. Holcomb v. Johnson, 6 

^' ^- ^'^''- Esp. 10; Doe d. Savage v. Stapleton, 

06 Sidebotham v. Holland [1895] 1 3 car & P 275 

». a-.. t\v TT „ r.„ .. . Topendill v. Neuberger, 67 Mich. 

6. Sidebotham V. Holland [1895] 1 3^ ^ 

Q. B. 378. And see Meeks v. Ring, 

■ 51 Hun, 329, 4 N. Y. Supp. 117. " ^^^^^"^ "■ ^^^' ^ ^url. & N. 594, 

68 Doe d. Cornwall v. Mathews, II ^®^™^ *° ^ ^° ^^^^ general effect. 

C. B. 675; Kemp v. Derrett, 3 Camp. '^^ ^o. Litt. 45 b; Bac. Abr., Leases 

510; Eberlein v. Abel, 10 III. App. (L) 1- See post, § 146 d, at notes 

(10 Bradw.) 626; Feyrelsen v. 18-23. ft 

Sanchez, 70 111. App. 105. 



§ 12 DURATION OF THE TERM. 55 

of existing leases of separate parts of it will commence as to 
each part as soon as the existing term therein comes to an endJ'' 

c. The duration of the term— (1) Statutory restrictions. 
At common law there is no restriction upon the length of the 
term which may be created,'^* but in several states there are 
statutory provisions in this regard^" The Alabama statute/^ 
providing that no leasehold estate can be created for a longer 
term than twenty years, has been regarded as invalidating the 
lease only as to the excess over the period named/'' but a different 
view has been taken in New York as to a statutory provisioti that 
no lease of lands for over twelve years, reserving rent, shall be 
valid, and such a lease was there held to be void in totoJ^ 

A provision restricting the duration of a lease of agricultural 
lands has been held to apply even though the lands were not 
leased for purposes of atgrieulture, if they are agricultural in 

73 Windham's Case, 5 Coke, 7 a. Const, art. 1, § 14), in one, if for 

f*Co. Litt. 45 b; 2 Blackst. Comm. over twenty years (Iowa Const, art. 

142. See 2 Pollock & Maitland, Hist. 1, § 24). In Nevada a lease of such 

Eng. Law, 112. lands, if for over ten years, is void 

A lease for nine hundred and nine- without reference to whether rent 

ty-nine years is valid. Morrison v. is reserved (Comp. Laws 1900, § 

St. Paul & N. P. R. Co., 63 Minn. 75, 2717). 

65 N. W. 141, 30 L. R. A. 546; Tod- Leases of city lots are void, if for 

hunter v. Des Moines, I. & M. R. Co., over twenty years, by the provisions 

08 Iowa, 205, 12 N. W. 267; In re of S. D. Civ. Code 1903, § 226; Nev. 

Gay, 5 Mass. 419; Montague v. Smith, Comp. St. 1900, § 2717, if for over 

13 Mass. 396; Lilley v. Fifty Asso- fifty years, by those of Cal. Civ. Code, 

ciates, 101 Mass. 432. In Caldwal- § 718; and, if for over ninety-nine 

lader. Ground Rents, 101, there is years, by those of N. D. Rev. Codes 

a full statement as to long term 1905, § 4706; provided, except in Ne- 

leases and rent reserved on convey- vada, a rent is reserved, 

ance in fee in different parts of this 7e Code 1907, § 3418. 

country, as well as in Europe. 77 Robertson v. Hayes, 83 Ala. 290, 

75 Leases and grants of agricul- 3 So. 674. 

tural land, reserving a rent, are in 78 Clark v. Barnes, 76 N. Y. 301, 

four jurisdictions void if for over 33 Am. Rep. 306. But in Parish v. 

ten years (Cal. Civ. Code, § 717; Rogers, 20 App. Div. 279, 46 N. Y. 

Mont. Rev. Codes 1907, § 4465; N. Supp. 1058, a majority of the court 

D. Rev. Codes 1905, § 4746; S. D. Civ. held that such provision, if appli- 

Code 1903, § 226), in two if for over cable at all to leases for life, rend- 

twelve years (Mich. Const, art. 18, ered a lease of agricultural land for 

§ 12; N. Y. Const, art. 1, § 13), in life invalid only as to the excess over 

one, if for over fifteen years (Wis. the twelve years. 



56 TENANCY FOR YEARS. § 12 

cliaracter/9 but it has also been decided that an express pro- 
vision of the lease excluding such use of the land will render it 
valid.8o 

Where two leases were made at one time and as parts of one 
transaction, one for twelve years and the other for eight years, 
the latter to commence on the termination of the former, both 
were held void, this being an evident attempt to avoid the pro- 
hibition of a lease for over twelve years.^^ 

A statutory provision invalidating a lease for more than a 
certaui period in which a rent is reserved was decided not to 
apply to a conveyance made in consideration of the grantee's 
promise to support the grantor during her life, this not involv- 
ing any reservation of rent,®^ and this view was taken of a 
lease, by the owner of a farm, of the farm and the personal 
property thereon to his grandchild, the latter to cultivate it and 
keep it in repair, the two to share in the proceeds, and the 
grandchild to have the farm on the other 'j5i death,®^ and also of a 
lease granted in consideration of a gross ffum.^* In a recent case 
a lease which was delivered in escrow to take effect- upon the 
lessor's death was held to be invalid under such a statute, by 
reason of the fact that the lessor's death occurred at such a 
time that more than twelve years would intervene between it 
and the time named by the lease for the termination of the ten- 
aney.8** Ordinarily, the question of the invalidity of a lease by 
reason of such a statute would, it seems, be a matter to be ascer- 
tained as of the time of the making of the lease. 

In Maryland there are statutory provisions, hereafter referred 
to,^^ which, while not restricting the period for which a lease may 

A lease for twelve years, witli a so Massachusetts Nat. Bank v. 

covenant to renew every twelve Shlnn, 163 N. Y. 360, 57 N., E. 611. 

years, was held to be good for twelve si Clark v. Barnes, 76 N. Y. 301, 

years, while the covenant was void. 33 Am. Rep. 306. See post, § 219. 

Hart V. Hart, 22 Barb (N. Y.) 606. 82 Stephens v. Reynolds, 6 N. Y. 

A judgment foreclosing a mortgage '•^ Seld.) 454. 

on the leasehold was held to estop »^ P^rsell v. Stryker, 41 N. Y. 480. 

the lessee from alleging that the ..'^T^^ L^T^\^^ ""n "'- 

95, 95 N. W. 442; Rutherford v. Gra- 
lease was void under the constitu- j^^^^^^ ^ ^^^ ^^ Y.) 796 

tional provision. Witherbee v. Stow- s4a Waldo v. Jacobs, 152 Mich. 425, 
er, 23 Hun (N. Y.) 27. 15 itet. Leg. N. 316, 116 N. W. 371. 

73 Odell V. Durant, 62 N. Y. 524. ss See post, § 269. 



§ 12 DURATION OF THE TERM. 57 

be made, give the tenant the absolute right to purchase the rever- 
sion after a certain number of years for a price equal to the 
capitalization of the rent at a certain percentage named. 

(2) Requirement of certainty — (a) Lease must show dura- 
tion. The duration of the term must appear with certainty from 
the lease creating it.*® Otherwise, it is insufficient to create a 
term of years, and the person entering thereunder will be either 
a tenant at will or a periodic tenant,*'^ or if the lease be executed 
with such formalities as are necessary for the creation of a 
freehold estate, he will be, it seems, a tenant for life. ** The 
lease need not, however, actually name the period during which 
the tenancy is to endure, but it may fix such period by reference to 
some collateral fact or event. So a demise to hold for as many 
years as a person named has in other property,*® or "during 
the minority of B, " a living person, whose age is ascertainable,®" 
or until certain fixed yearly payments amount to a sum named,®^ 
is valid to create a term. Such collateral fact or event must 
however be itself certain as regards its duration or time of hap- 
pening, in order that a reference thereto may give the requisite 
certainty of duration to the tenancy.®^ 

In one case a lease for a "season" was regarded as creating 
an estate for years,®^ and in another a lease for the purpose of 
raising a crop of "winter" wheat was construed to create a 
tenancy to endure until the time for harvesting such a crop.®* In 
the former case it could be shown by oral evidence what was 
meant by the expression "season" in that vicinity and in that 
connection, and so there would seem to be the requisite degree 
of certainty as to duration, but in the latter case there would 

86 Say V. Smith, Plowd. 272; oo Co. Litt. 45 b. 

Bishop of Bath's Case, 6 Coke, 35; bi Bishop of Bath's Case, 6 Coke, 
Reed v. Lewis, 74 Ind. 433, 39 Am. 35. g^y y_ Smith, Plowd. 273; Bar- 
Rep. 88; Gilmore v. Hamilton, 83 ^^^ ^ Johnson, 2 Ind. App. 25. 
Ind. 196; Melhop v. Meinhart, 70 ^^ g^^ ^^^^ subsection, § 12 c (2) 
Iowa, 685, 28 N. W. 545; Corby v. 
McSpadden, 63 Mo. App. 648. ^'^'■ 

87 See post, §§ 13 a (4), 14 b (2). »' Kelly v. Waite, 53 Mass. (12 

88 See ante, § 11 b; post, 13 a (4). Mete.) 300. See Praser v. Drynan, 9 

89 Bishop of Bath's Case, B Coke, New Br. (4 Allen) 74. 

35; Co. Litt. 45 b; Eubank V. May & ^Rees v. Baker, 4 G. Greene 
Thomas Hardware Co., 105 Ala. 629, (Iowa) 461. 
17 So. 109. 



58 TENANCY FOR YEARS. § 12 

seem necessarily to be a considerable degree of uncertainty as to 
duration until the crop was actually harvested. 

There is a decision that a lease was one for years when, though 
the duration of the tenancy was not stated, it was limited to 
commence in the future, so that a freehold could not be regarded 
as created, and other provisions showed that a lease for years 
was intended.®^ This decision can be supported only on the 
theory that a lease which appears to be intended to take efPect 
as a lease for years, without explicitly naming any period of time, 
is equivalent to a lease expressed to be "for years," and is, con- 
sequently, in accordance with the view stated in some of the 
old books,"* good as a lease for two years. It seems, however, 
most questionable whether a lease should be regarded as equiva- 
lent to a lease expressed to be "for years" merely because it 
indicates an intention that it shall create a tenancy for years, 
in the absence of a statement, expressly or by inference, of the 
length of the term. 

In one case it was in effect decided that there was sufficient 
certainty as to the term if its duration could be ascertained at 
the time of its commencement, though not at the time of the 
making of the lease.^^ The opinion contains no discussion of 
the matter on principle, and the soundness of the view indicated 
may, it is submitted, be open to question. 

(b) Tenancy expiring only on contingency. There are at 
least two eases to the effect that there is a sufficient certainty as 
to the duration of the tenancy if it is to endure until a particular 
event, though the time of such event cannot be ascertained in 
advance. In one of the cases referred to the lease was regarded 
as creating a term when made to endure so long as the lessee 
should use the premises for a particular purpose,®* and in the 

95 Barney v. Keith, 4 Wend. (N. the lessee at the rent stipulated," 
Y.) 502. and this was regarded as giving suffl- 

96 See post, at note 125 a. , cient certainty. 

97 Flagg V. Dow, 99 Mass. 18. V ss Homer v. Leeds, 25 N. J. Law 
There a lease for eight years pro/ (Dutch.) 106. There though the 
vided that if at the end of that titjie lea^ was in terms expressed to he 
the lessors did not pay the appraised merely "for any term of years the 
value of the buildings which might said lessee may think proper," it 
be erected by the lessee the latter appearing from the evidence that the 
might retain possession "till the said lease was made for the purpose of 
sum, without interest, is realized by manufacturing salt, the court de- 



§ 12 DURATION OP THE TERM. 59 

other when made to endure until the receipts from the premises 
amounted to a certain sum.^^ There are other cases in which the 
effectiveness of such a limitation upon a contingency has been 
recognized, without, however, any statement as to the character 
of the tenancy, as when the tenancy was to endure until other 
premises were made suitable for the lessee's occupancy ,1"" "dur- 
ing the life of the building" in which the rooms leased were situ- 
ated, i°i until the issues and profits of the land have amounted 
to a certain sum,!"^ go long as oil shall be found in the land,!"^ 
until the lessor pays a certain debt,!"* until the land js sold,!"!* 
or so long as the premises are used for a certain purpose.!"^ 
If a lease which so undertakes to create a tenancy to terminate 

cided that It was "a lease for so 101 Alnsworth v. Mt. Moriah Lodge, 
long a term as the lessee shall use 172 Mass. 257, 52 N. E. 81. Here 
the premises for the purpose of it was held that "life of the building" 
manufacturing salt," that Is, that a was terminated, within the provi- 
term existed though there was no sion of the lease, when the lessee 
term named, a most singular view, could not rebuild the rooms leased, 
it would seem. It ma,y be noted as required by the covenant to keep 
that the court in this case, in citing in repair, without rebuilding other 
a statement from Comyn, Landl. & parts of the building. 
Ten. 88, to the effect that "the dur- . i»2 Batchelder v. Dean, 16 N. H. 
ation of a term, if not definitely ex- 265. 

pressed in a lease, may be fixed by In Thomas v. Wright, 9 Serg. & R. 
reference to collateral or oxtrinBic (Pa.) 87, it was said that one hold- 
circumstances," seems to assume ing under a lease at a fixed rent, to 
that this means that the court can hold till he had reinbursed himself 
go into oral evidence to aid the un- for repairs, was a tenant from year 
certainty of the lease in this respect, to year. This seems sound in prin- 
while it evidently >means merely ciple, since his holding was for an 
what has been stated in the text uncertain time, and consequently, as- 
above, that a reference in the lease suming that the lease was not suffi- 
to extrinsic circumstances may be cient to create a freehold, a tenancy 
a sijpicient statement of the length at will would have existed had it 
of the term. not been for the reservation of rent. 

»9 Wilcox V. Bostick, 57 S. C. 151, See post, § 14 b (2). 
35 S. E. 496. ^"^ Harley v. O'Donnell, 9 Pa. Co. 

looiyArcy v. Martyn, 63 Mich. Ct. R. 56. 
602, 30 N. W. 194. So in Stevens v. w* Wells v. Sheerer, 78 Ala. 142; 
Pantlind, 95 Mich. 145, 54 N. W. Nugent v. Riley, 42 Mass. (1 Mete.) 
716, a lease of a sawmill for so 117, 35 Am. Dec. 355; Hunt v. Com- 
long a time as it shall take the stock, 15 Wend. (N. Y.) 665. 
lessees to cut certain designated logs los Aydlett v. Pendleton, 114 N. C. 
was regarded as valid,, nothing be- 1, 18 S. B. 971. 
in said, however, as to the charac- loeKugel v. Painter, 166 Pa. 592, 
ter of the tenancy. 31 Atl. 338. 



60 TENANCY FOR YEARS. § 12 

only upon the happening of a certain contingency, the time of 
which cannot be ascertained in advance, is executed with formali- 
ties sufficient to pass a freehold, it would, according to the com- 
mon-law authorities, have that effect, creating an estate in fee or 
for life in the lessee, subject to a special limitation!"'^ terminat- 
ing the estate upon such a contingency, that is, for instance, when 
the premises cease to be used for such purpose, the other prem- 
ises are made suitable, or the life of the building comes to an 
end. Such cases fall clearly within the principle of Coke's state- 
ment that "if a man grant an estate to a woman while she re- 
mains single, or during her widowhood, or so long as she behave 
weU, or to a man and a woman during the coverture, or as long 
as the grantee dwell in such a house, or so long as he pay forty 
pounds, etc., or until the grantee be promoted to a benefice, or for 
any like uncertain time, which time, as Braeton saith, is tempiis 
indetermmatum, in all these cases if it be of lands or tenants, 
the lessee hath in judgment of law an estate for life determin- 
able, if livery be made.''^"* If on the other hand the lease is 
not executed so as to pass a freehold, it can create but a tenancy 
at will, since the duration of the tenancy is absolutely uncertain 
until it has come to an end. But even if it be a tenancy at will, 
the limitation of a contingency for the termination of the tenancy 
may be effective as a special limitation, there being on principle 
no objection to such a limitation in connection with a tenancy 
at will.!"^ Such a lease, not naming any term but limited to 
endure until the happening of a contingency, cannot properly be 
regarded as a lease for years. 

The view just stated appears to be equivalent to the statement 
in one of the older authorities that, in order to support a lease 
for years by reference, the reference must be "to a thing which 
has express certainty at the time of the lease made, and no|^ to 
a possible or casual certainty,""" in accordance with which it was 
held that a lease to endure until the child of I came to full age. 

In Beham v. Ohio, 75 Tex. 87, 12 tion of the building on the premises 
S. "W. 996, It was held that when a by fire another court house was se- 
lease of premises for use as a court lected. 

.house provided that the tenancy 107 See 1 Tiffany, Real Prop. § 30. 
should come to an end if at any los Oo Litt. 42 a. 
time the commissioners should se- 109 See post, § 13 b (5). 
lect another court house, it would no Bishop of Bath's Case, 6 Coke, 
be presumed that ui)on the destruc- 35 b. 



§ 12 DURATION OF THE TERM. 61 

such child being in ventre sa mere at the time of the lease, was 
lacking in certainty ,m as was a lease to one who had execu- 
tion under a statute merchant until he was satisfied the duty 
for which he had issued execution,ii2 and also a lease of lands to 
endure until the total issues and profits amounted to a certain 
sum.113 And so a lease to endure for so many years as A shall 
live 1^* or "as the coverture between A and B shall continue, "^^^ 
or for so long as C shall be parson of D,ii8 is stated not to be good 
as a lease for years by reason of the uncertairity. In all of these 
cases, it is to be observed, when the contingency happens which 
is to terminate the tenancy, the duration of the tenancy will be 
known, but this is not to be regarded as making its duration cer- 
tain within the rule. If it were otherwise, a tenancy for life or 
at will might be regarded as a tenancy for years, since, when 
the life ceases or the will is exercised, the duration of the tenancy 
will be known. 

It may be suggested that a tenancy to endure till the happen- 
ing of a contingency named might be upheld as a tenancy for 
years by the application of the principle, stated by the older 
authorities, that a term uncertain at the time of the lease may be 
rendered certain by matter ex post facto, the only instance of 
which specifically mentioned, being that of a lease for so many 
years as a third person may name, in which case, if such person 
name a certain term, the lease will be good ah mitio?-^'' That 
a lease until a contingency named was not within this principle, 
as understood by these authorities, appears with sufficient clear- 
ness from the cases above referred to. This doctrine, that the 
term may be rendered certain by matter ex post facto, it should 
be mentioned, was itself subject to a restriction to the effect that 
the reduction to a certainty must occur within the lifetime of 
both the lessor and the lessee ^^^ on the theory, apparently, 
that no interest passed until the certainty appeared.^^^ 

111 Bishop of Bath's Case, 6 Coke, 117 Bishop of Bath's Case, 6 Coke, 
35 b. 35 b; Say v. Smith, Plowd. 273. 

112 Say V. Smith, Plowd. 273. us Rector of Chedington's Case, 

113 Bishop of Bath's Case, 6 Coke, 1 Coke, 155 a; Say v. Smith, Plowd. 
35 b. 273; Western Transp. Co. v. Lan- 

114 Co. Litt 45 b; Sheppard's sing, 49 N. Y. 499. 

Touchstone, 275. 11° See argument in Savell v. Cor- 

ns Bac. Abr., tit. Leases (L 3). dell, Godb. 24. 
116 Co. Litt. 45 b. 



62 TENANCY FOR YEARS. § 12 

The view above stated, that the mere fact that a future 
event is named, on the happening of which the tenancy is to 
terminate, does not, if the time of such happening is uncertain, 
create the certainty of duration necessary for an estate for years, 
is recognized in a number of cases in this country, it having been 
decided that there was no sufficient certainty to create a term 
of years in the case of a lease for so long as the lessee "may 
please, "1^'' "for so long as a certain business may be carried on 
by the lessee," 1 2^' "until the party of the first part is prepared 
to improve the ground with new buildings, "122 or until the prem- 
ises are sold.^^* And it has been decided that a lease not naming 
any term is not a lease for two years because it provides that the 
lessor may repossess himself of the property at the end of two 
years.124 go a lease "during and for the whole time that the les- 
see may be postmaster ' ' was construed as referring to his present 
term in such office, since, if it was regarded as including the term 
which he might afterwards have by xeappointment, the lease 
would be lacking in certainty sufficient to create a term.^^^ 

(c) Lease for uncertain number of years. It is said in some 
of the older books that if a man in terms leases his land "for 
years" or "for term of years," it is a good lease for two years, be- 
cause for more there is no certainty, and for less there can be no 
sense in the words. i^^'' To a certain extent in accordance with 
this view is that expressed in a modern ease that a lease for 
one or more years is a lease for two years.^^® Perhaps a lease in 

120 Western Transp. Co. v. Lian- bound, he having the right to term- 
sing, 49 N. Y. 499. inate the lease at will. See post, § 

121 Melhop V. Meinhart, 70 Iowa, 12 f. 

■685, 28 N. W. 545. "" Easton v. Mitchell, 21 111. App. 

122 Corby v. McSpadden, 63 Mo. ^^^■ 

App, 648. ^^^^ Bishop of Bath's Case, 6 Coke, 

123 Lea V. Hernandez, 10 Tex. 137. ^^- ^^^- Abr., Leases (L) 3; Bro. 
1=4 Murray V. Cherrington, 99 Mass. ^'"■- ^^^^^- P^' ^^- ""ng dictum of 

Fitzherbert, J., in Y. B. 14 Hen. 8, 

10. But Brooke, J., apparently 
thought that such a lease was one 



229. The decision in this case was 
however, on the ground that the 



lessee was not bound for the two ^t will only. See Bro. Abr., Lease, 

years. But by other decisions the pj 22. 

lessor might be bound for a certain lae Boston Clothing Co. v. Solberg, 

period though the lessee is not so 28 Wash. 262, 68 Pac. 715. The 



§ 12 DURATION OF THE TERM. 63 

this latter form might be regarded as a lease for two years with 
an option in the lessee to terminate the tenancy at the end of one 
year. 127 

A lease for seven, fourteen, or twenty-one years, as the lessee 
shall think proper, has been regarded as sufficiently certain,!^^ as 
was a lease, made in 1775, for "three, six, or nine years, determ- 
inable in 1788, 1791 or 1794, ' ' it being decided that the lessee had 
the option whether to terminate it at either of the earlier 
dates.129 Ordinarily, the same end would be attained by making 
a lease for the longest period named, with an option in the lessee 
to terminate it at the end of one of the shorter periods.^*** 

(3) Ascertainment of day of expiration — (a) General rule 
of computation. In the case of a term limited to endure, not for 
a certain number of days but for a year or a month, the lease 
does not terminate upon the day corresponding to the day on 
which the term commences but upon the day preceding that day, 
that is, the term is regarded, for the purpose of computation, as 
commencing at the midnight preceding the day named for its 
commencement.* *i So a lease for a year, commencing the first 
day of April, expires at the end of the last day of March,i32 and 
a lease for a month, commencing the first day of the month, 
•expires the last day of the month.i^s The same rule holds good, 
no doubt, when the tenancy is for two or more years or for 

■opinion merely cites Wood, Landl. & 1032. The decision is probably more 

Ten. § 291, stating that a lease for correctlji reported in 3 Term R. 

one year certain, and so on from 4^3^ note. 

year to year, creates a tenancy for i29Goodright v. Richardson, 3 

two years at the least. (See post, .p^j^ ^ ^g2 

i 14 b [1] ) and Gear. Landl. & ^^„ ^^^ ' ^„ ^ 

Ten. § 25, stating that ^J^^^^^ ^l ,31 Say v. Smith, Plowd. 271; Side- 
more than one year, without saying " ' 

. * *„,„ ,.»o,.c, botham v. Holland [1895] 1 Q. B. 

how many years, is for two years „„„ „ . .i „ ^ o< tj, 079 

:, _ .. , T,««». 378; Marys v. Anderson, 24 Pa. 272 

certain. Mr. Gear cites only Denn ' , / ^ _ r. ., „ c^ r.„ oxn. 

/^ 4. ■ X.V A i3<o=t OQ. -nno ri (semble); Duffy v. Ogden, 64 Pa. 240 ; 

■V. Cartwnght, 4 East 29 Doe d. ^^^,^^^^^ ^ ^^ ^^^ ^ ^ ^53, 

Chadbourne v Gree„ 9 Adol. & E Donaldson v. Smith, 

658, and Doe d. Monck v. Geekie, ^ ^^j 

-Q. B. 841, none of which, it is sub- ^. ^ ^^^^ ^^^ 

mitted, supports his statement. ^^^^' ■ ■ 

-. i B 10 „ f<>^ iA\ 132 Fox V. Nathans, 32 Conn. 348. 

Compare post, § 12 c (3) (d). ' , , ^ 

12T See post, § 12 f, and cases next "» Steffens v. Earl, 40 N. J. Law, 
^jjgj 128, 29 Am. Rep, 214. 

128 Ferguson v. Cornish, 2 Burrow, 



64 TENANCY FOR YEARS. | 12 

two or more months.^** So in the case of a periodic tenancy, 
each period begins on the day corresponding to that of the day 
named for the commencement of the holding, and terminates 
on the previous day.i^^ In the ease of a tenancy from month 
to month, for instance, which began on the first day of the cal- 
endar month, each month of the tenancy ends on the last day 
of the calendar month, and the succeeding monthly period begins 
on the following day.^^® It has in one state been said that a 
lease to end ' ' on May 1st ' ' expires at noon of that day, while one 
"to May 1st" expires at midnight on April 30th. 1 3 '^ 

(b) Effect of custom. The exact time of the expiration of 
the tenancy under a lease for a particular period may, it seems, 
be affected by the custom and common understanding of the 
community in this regard.^^s jn jg-gw York it is said to be 
settled by custom, which has acquired the force of law, that a 
tenancy for the term of one year, commencing on a first day of 
May, shall terminate on the next first day of May at twelve 
o'clock noon.139 

(c) Statutory provisions. In several states there are statu- 
tory provisions to the effect that in the case of leases not nam- 
ing any period the tenancy shall come to an end at a certain 
time in the calendar year, or shall be construed as intended to 
endure for a period named in the statute.^*** The effect of such 

12* So if a term of two years is In Frost v. Akron Iron Co., 1 App. 

limited to commence on December DIv. 449, 37 N. Y. Supp. 374, it is said 

1st, it ends on November 30th. that by custom, when a lease ex- 

135 Sidebotham v. Holland [1895] pires on the second day of May, the 
1 Q. B. 378. landlord is entitled to possession at 

136 Petsch v. Biggs, 31 Minn. 392, twelve o'clock noon. See, also, Peo- 
18 N. W. 101; Harris v. Halverson, pie v. Robertson, 39 Barb. (N. Y.) 
23 Wash. 779, 63 Pac. 549. 9, ante, note 137. 

13T People V. Robertson, 39 Barb. no Cal. Civ. Code, §§ 1943, 1944 

(N. Y.) 9. (A hiring of real property other 

isssee Fox v. Nathans, 32 Oonn. than lodgings and dwelling houses, 

348; Marys v. Anderson, 24 Pa. 272; in places where there Is no usage 

"Wilcox V. Wood, 9 Wend. (N. Y.) on the subject, is presumed to be for 

346; Doe d. Moore v. Eason, 33 N. C. one year from its commencement 

(11 Ired. Law) 568. A hiring of lodgings or a dwelling 

139 Marsh v. Masterson, 15 Daly, house for an unspecified term is 

114, 3 N. Y. Supp. 414; Wilcox v. presumed to have been made for 

Wood, 9 Wend. (N. Y.) 346; 2 Mc- such length of time as the parties 

Adam, Landl. & Ten. (3d Ed.) 578. adopt for the estimation of rent. 



§12 



DURATION OF THE TERM. 



65 



a statute would seem to be to substitute in certain cases a tenancy 
for years for what might otherwise be a tenancy at will or a 
periodic tenancy. 

(d) Inconsistent limitations. It has been decided that when 
the commencement and duration of the tenancy are clearly stated, 
an inconsistent statement as to the date upon which it will come 
to an end will be disregarded as being the result of mistake.^** 



Thus a hiring at a monthly rent is 
presumed to be for one month. In 
the absence of any agreement re- 
specting the length of time or the 
rent, the hiring is presumed to be 
monthly). See .Ga.l)el v. Page, 6 
Gal. App. 618, 92 Pac. 749. Conn. 
Gen. St. 1902, § 4043 (Parol leases 
reserving monthly rent, in which the 
time of termination is not agreed on, 
shall be construed to be leases for 
one month only). See Corbett v. 
Cochrane, 67 Conn. 570, 35 Atl. 509. 
Del. Rev. Code 1893, p. 866, § 2. (If 
no term expressly limited, demise 
shall be construed as for a year). 
Ga. Code 1895, § 3132 (where no time 
specified for the termination of the 
tenancy, the law construes it to be 
for the calendar year, but if it i3 
expressly a tenancy at will, then 
either party may terminate it at 
will). Iowa Code 1897, § 2991. "In 
case of tenants occupying and culti- 
vating farms, the notice must fix 
the termination of the tenancy to 
take place on the first day oi March, 
except in cases of mere croppers, 
whose leases shall be held to expire 
when the crop is harvested; if the 
crop is corn, it shall not be later 
than the first day of December, un- 
less otherwise agreed upon"). It 
was held that under this statute the 
tenant who has husked his com can- 
not thereafter pasture his cattle on 
the stalks. Kyte v. Keller, 76 Iowa, 
34, 39 N. W. 928; Tantlinger v. Sul- 



livan, 80 Iowa 218, 45 N. >W. 765. 
2 N. J. Gen. St. p. 1924, § 37 (When 
no term is agreed upon and the rent 
is pa,yable monthly, so long as the 
tenant pays the rent agreed, it shall 
be unlawful for the landlord to dis- 
possess the tenant before the first 
day of April succeeding the com- 
mencement of the letting without 
giving the tenant three months' 
notice to quit). N. Y. Real Prop. 
Law, § 202 (An agreement for the 
occupation of real property, in the 
city of New York, not particularly 
specifying the duration of the occu- 
pation, shall be deemed to continue 
until the first day of May next after 
the possession commences under the 
agreement). A tenancy expressed to 
be at the will of either party was 
held not to be within the statute. 
Jennins v. McCarthy, 40 N. Y. St. 
Rep. 678, 16 N. Y. Supp. 161. See, 
also, Hebberd v. Mayo, 97 N. Y. Supp. 
396. N. D. Rev. Codes 1905, §i 5529, 
5530. (Same as Cal. Civ. Code, §§ 
1943, 1944, supra, omitting "and 
dwelling houses" and "or a dwelling 
house"). S. D. Civ. Code 1903, §§ 
1435, 1436 (same as North Dakota). 

"1 Biddle v. Vandeventer, 26 Mo. 
500; Nindle v. State Bank, 13 Neb. 
245, 13 N. W. 275. 

In Siegel, Cooper & Co. v. Colby, 
176 111. 210, 52 N. E. 917, the lease 
was expressed to be for a term to 
commence January 1, 1886, to run 
until December 31. 1889, but it pro- 



L. and Ten. 5. 



66 TENANCY FOR YEARS. § 12 

In one case, however, it was held that under such circumstances 
the lessee had the option to elect between the two dates>*2 And 
elsewhere it has been said that in case of doubt the construction 
of the lease in regard to the duration of the term must be in 
favor or the tenant.^*^ 

If the limitations of the lease be divisible, and by part thereof 
a term is set forth with certainty while the rest are uncertain, 
the lease will, it has been decided, be upheld as to the latter. So 
it has been held that if a man grant another a lease for ten years 
with a provision that if, at the end of every ten years, the grantee 
shall pay the lessor a certain quantity of tiles he shall have a 
perpetual demise from ten years to ten years continually follow- 
ing, this is a good lease for ten years and bad as to the balance.^** 
And a lease to hold for one year, and so for two or three years, or 
such term as the parties should think fit, was held to be for a 
year only.^*" Likewise, in the case of a lease for a year with 
provision that it should run so long as the parties should agree, 
and that when the parties failed to agree the lessor should have 
immediate possession, it was held that the lessee had no right 
to hold after the year against the will of the lessor.^^^ But in 
one case it was held that, on a construction of the whole instru- 
ment, a lease in terms to run from a day named to the correspond- 
ing day in the next year, with a provision that if either party 
elected to terminate the lease the party so electing should give 
six months' prior notice, the latter provision was controlling, 
and such notice was necessary to terminate it at the end of the 
first or any subsequent year.^*'' 

The rule above stated, that if a term is clearly defined other 
ambiguous limitations in the lease should be disregarded, might, 
it is conceived, have been advantageously applied in certain cases 

Tided for a total rental of $36,000, "2Murrell v. Lion, 30 La. Ann. 

to be paid in equal monthly Instal- 255. 

ments of $1,000, and allowed the us Com. v. Sheriff, 3 Brewst. (Pa.) 

lessee to renew from January 1, 1889. 537. 

A renewal was actually granted, re- 144 Say v. Smith, Plowd. 271; 

citing that It was to begin Decern- Gwynn v. Mainestone, 3 Car. & P. 302, 

ber 31, 1889. It was held that the 145 Harris v. Evans, Amb. 329. 

intention was in the first place to i48 Dunph,y v. Goodlander, 12 Ind. 

make a lease to expire December 31, App. 609, 40 N. E. 924. 

1888, and that the renewal was then 147 Brady v. Flint, 23 Neb. 785, 37 

to take efeect. N. W. 647. 



§ 12 DURATION OF THE TERM. 67 

in which a lease, which after limiting a certain term gave a "right 
of refusal" to the lessee for further like periods, was apparently 
held to create a succession of terms, each term to commence upon 
the expiration of the previous term, until the parties or one of 
them indicated an intention to the contrary.^*® Such a con- 
struction placed upon the language of the demise seems in effect 
to involve the creation of a periodic tenancy terminable without 
the notice ordinarily required in the case of such a tenancy, and 
should, it is conceived, be adopted only when the intention to 
that effect is clearly apparent. The rule referred to might also 
have been applied, it seems, to leases limiting a term and also 
providing that the lessee might retain possession so much longer 
as he desired, which were, however, construed to allow him to 
retain possession after the term.i** Such a result could be 

14S In Drinkard v. Heptinstall, 55 rent," and it -was held that if the 
W. Va. 320, 47 S. E. 72, it was held tenant remained in possession after 
that a lease for a term, "with the re- the first year he could be turned out 
fusal of said premises from month to at the end of the second year with- 
month thereafter so long as said out any notice to quit, his continued 
(lessee) may desire to occupy said holding being "a new tenantry for an- 
premises," diti-«QL_create a periodic other year, and not from year to 
tenancy after the endoT^thfe term, year." In one part of the opinion 
but merely gave to the lessee the the court seems to think that the 
right to the property so long as the tenant's continued holding was un- 
lessor continued to lease it, and that der the lease, and in another that 
the lessee's "term ends with his it was under the lessor's subseciuent 
month each time, unless it is re- consent to his continuance in pos- 
newed by the assent of the parties, session. But it is impossible from 
expressed or implied, and no notice the opinion to form a clear idea of 
to quit is necessary." Crawford v. what the court did mean. It would 
Morris, 5 Grat. (Va.) 90, is cited, but have been a simple, and, it is sub- 
that case merely decided that a mitted, a correct solution of the diffi- 
"preference" to the lessee as to culty to regard the provision in the 
future leases after the term created lease for a continuance of possession 
by the lease did not make it a ten- if the lessee "suited" the lessor, and 
ancy from year to year. they could agree on rent, as abso- 

In Whetstone v. Davis, 34 Ind. 510, lutely nugatory, in which case the 

a lease provided that the tenant holding by the tenant after the first 

should have the premises for one year, if consented to by the lessor, 

year from a date named "and to would have been at will or as a 

have the privilege of said farm two periodic tenant, 

or three years, if said farm is for "o Sweetser v. McKenney, 65 Me. 

rent, if (the lessee) suits (the les- 225; Holley v. Young, 66 Me. 520. 

sor), and they can agree on said See post, chapter XXII. 



68 TENANCY FOE YEARS. § 12 

obtained, it seems, onJy by regarding tiie lessee as having a free- 
hold estate, the effect of which would be to render the limita- 
tion of a term absolutely nugatory. 

(e) Oral evidence. In accordance with the general rule that 
extrinsic evidence is inadmissible to contradict a writing, it is 
not admissible to show that the intention was to limit a term other 
than that actually named in the instrument of lease.^^** If, how- 
ever, no term is named in the writing and the statute of frauds 
does not apply, there is, it seems, no objection to showing by oral 
testimony the length of the intended term.^^i 

In the ease of an oral letting, if the evidence as to the intended 
duration of the term is conflicting, the question is properly left 
to the jury.152 

(f ) Lease covering separate tracts. Occasionally the question 
has arisen, in connection with a lease which covered different 
tracts of land and contemplated the breaking or clearing thereof 
and the taking of a certain number of crops therefrom, whether 
the lease was to terminate as to all the tracts at one time, and it 
has been held, on a construction of the terms of the particular 
instrument, that it was so intended.^^* 

d. Contingent expiration — Special limitation. The tenant's 
estate for years, like a life estate,^^* may be subject to a "special 
limitation," or, as it is sometimes called, a "conditional limita- 
tion," by which such estate may come to an end before the regu- 
lar end of the term upon the happening of some contingency.^^' 
So a lease may be made for a certain number of years, if the lessee 

150 Doe d. Spicer v. Lea, 11 Bast, And see Humplireys v, Franks, 18 
312; Keegan v. Kinnaire, 12 111. App. c. B. 323. 

484j Elizabeth Town Law Inst. v. 153 Dodson v. Hall, 58 Tenn. (11 

C«nroy, 4 N. J. Law J. 189; Wheeler ^^.^^^ ^gg^ g^g. ^^^^.^ ^ jackson, 

V. Cowan, 25 Me. 283; Equitable Life ^^ ^^^ 3^^ ^^ ^^^^^^ ^ ^^^^^^^ 
Assur. See. V. Schum, 40 Misc. 657. 

83 N. Y. Supp 161. 1°« ^^- 34^. 32 S. E. 94; Perkins y. 

If the lease is expressed to be for Peterson, 110 Ga. 24, 35 S. E. 319. 

a term, it cannot be shown that it ^°*Ante, § 11 b. 

was intended to be from month to 1=5 See 1 Tiffany, Real Prop. § 78, 

month. Dodd v. Pasch, 5 Cal. App. as to estates on special limitation. 

686, 91 Pac. 166. As to the distinction between a spe- 

151 Reynolds v. Davidson, 34 Md. cial limitation and a condition, see 
662. post, § 194 c. 

i52Kerwin v. James, 43 Ga. 397. 



§ 12 CONTINGENT EXPIRATION. 69 

lives so long,i56 if another person lives so long/^T if B shall 
continue parson of Dale,"8 if the lessee,!^^ or his licensee, being 
of a specified character,^®" continues to occupy the premises, or 
if the lessee continues in the lessor's serviee,i6i and in such cases 
the tenancy will come to an end before the expiration of the term 
named, in case the lessee or other person dies, removes from the 
premises, or leaves the lessor's employment as the case may be. 
Further examples of such a limitation occur in the case of a 
lease for years to cease on condemnation of the premises for pub- 
lic use,i^2 ujitil machinery on the premises breaks down,i63 or 

16G Co. Litt. 45 b, 214 b; Hughes' the service owing to the lessor's 
Case, 13 Coke, 66. death, this not being the fault of the 

A lease "for the space of twenty lessee. This seems questionable, 
years, or during our (the lessees') Morris Canal & Banking Co. v. 
natural lives," was construed to be Mitchell, 31 N. J. Law, 99, and Mc- 
a lease for twenty years, provided Gee v. Gibson, 40 Ky. (IB. Mon.) 
the lessees lived so long, the tenancy 105, are to the effect, it seems, that 
coming to an end if they should die in the case of a lease to an employe, 
before the expiration of the twenty a special limitation is to be implied, 
years, and not a lease for twenty terminating the tenancy on cessation 
years In any case, and, if the lessees of the employment. In the first 
lived longer, during their lives. Sut- named case no term appears to have 
ton V. Hiram Lodge, 83 Ga. 770, 10 S. been mentioned, and the decision is 
B. 585, 6 L. R. A. 703. based partly on the fact that the 

107 Handle v. Lory, 6 Adol. & E. em-ploye knew that the lessor's em- 
218. ployes were always required to leave 

158 Sheppard's Touchstone, 274. on the termination of the employ- 

159 Doe d. Lockwood v. Clarke, 8 ment. 

East, 185. See Hardy v. Seyer, Cro. i«2 Munigle v. City of Boston, 85 
Eliz. 414; Sawerv. Hardy, Owen, 107. Mass. (3 Allen) 230; Kohl v. U. S., 
The tenancy will terminate even 91 U. S. 367, 23 Law. Ed. 449. 
tf the cessation of occupation is In Pinckney v. Ba,y, 41 N. T. St. 
caused by a sale under legal pro- Rep. 676, 16 N. Y. Supp. 433, it was 
cess. Doe d. Lockwood v. Clarke, 8 held that a lease of property abutting 
East, 185. on an ungraded street, which pro- 

160 Kehoe v. Marquess of Lans- vided that it should terminate in 
downe [1893] App. Cas. 451. case 'the city took possession of the 

181 Marmet Co. v. Archibald, 37 W. street for purposes of improvement, 

Va. 778, 17 S. B. 299; Wrenford v. did not come to an end because the 

Gyles, Cro. Eliz. 643. In this latter city, without the passage of any grad- 

case a majority of the judges held ing ordinance, removed a fence 

that, in the case of a lease to one, which obstructed the street and 

so long as he continued in the les- dumped dirt and refuse there, 

sor's service, the tenancy did not les Scott v. Willis, 122 Ind. 1, 22 

terminate by reason of the ending of N. E. 786. 



70 TENANCY FOR YEARS. § 12 

until the dissolution of a partnership to which the lessor and 
lessees are parties. ^^^ 

When the lease is made for a named number of years to two 
persons, if they shall live so long, or to A for so many years, if 
he and B shall live so long, or, if the lessor and J iS shall live so 
long, in all these cases, it is said, the death of .either of them term- 
inates the lease, because their lives are the collateral measure and 
limitation of the continuance of the term, and this differs from a 
lease to two persons for their lives, for this gives an estate to 
both for their lives and both have an estate of freehold therein 
in their own right.^®^ 

e. Option in the lessor to terminate — (1) Particular stipu- 
lations. Not infrequently the lessor is given the right to term- 
inate the tenancy before the expiration of the term named, such 
a right being sometimes absolute in character, and sometimes 
authorizing him to ter'minate only for some particular reason,!^^ 
as when he desires the land for building purposes,!^'^ or when he 
has sold the land,^®** because it has become unfit for occupation,^®'' 
or because of the use made of the premises by the lessee.^'^o A 
right to terminate, otherwise absolute • in character, may be 
restricted as regards the time at which the right may be exer- 
cised.!''! 

164 Russell v. McCartney, 21 Mo. (Bro. Abr., Lease, pi. 13) recognized 

App. 544; Doe d. Waithman v. Miles, in Bac. Abr., Leases (L) 3, that "if 

1 Starkie, 181. one makes a lease for ten years at 

A lease by one partner to the mem- the will of the lessor, the word "will" 

bers of the firm tot partnership busi- is void, for it is repugnant to the 

ness comes to an end, it has been de- lease." In Morton v. Woods, L. R. 4 

cided, upon a dissolution of the firm, Q. B. 293, Kelly, C. B., referred to 

without, it seems, any express pro- this dictum' without approval or dis- 

vision to that effect. Doe d. Col- approval, holding it inapplicable to 

naghi v. Bluck, 8 Car & P. 464 ; John- the particular facts. See post, § 13 a 

son v. Hartshorne, 52 N. Y. 173. (1). 

105 Bac. Abr., Leases (L) 4. i"? See post, notes 174-176. 

ise See Pratt v. Paine, 119 Mass. "s See post, § 12 e (3). « ' 

439 ; Lord v. Walker, 49 Mich. 606, 14 i69 Hunnewell v. Banks, 161 Mass. 

N. W. 564; Ex parte Miller, 2 Hill (N. 132, 36 N. E. 751. Or in case of dam- 

Y.) 418; Loddiges v. Lister, 1 Law age by fire. Browning v. Garvin, 48 

T. (N. S.) 548; Liddy v. Kennedy, L. App. Div. 140, 62 N. Y. Supp. 564. 

R. 5 H. L. 134. See post, § 182 m (6) (d). 

The cases recognizing such a right i7o Schwoerer v. Connolly, 44 Misc. 

in the lessor would rather seem to 222, 88 N. Y. Supp. 818. 

overrule the dictum of Brooke, J. iti As when there was an option 



§ 12 OPTION TO TERMINATE. 71 

A clause giving the landlord a right to terminate the tenancy 
whenever he should deem the tenancy undesirable has been held 
to entitle him to terminate it without stating why he deems it 
undesirable.i'^2 Qq ^^e other hand, a clause authorizing him to 
terminate it when he shall have use for part of the premises has 
been regarded as authorizing its termination only when he needs 
it for his own purposes, and not in order that he may lease to 
another.i'^3 

A provision allowing the lessor to terminate the tenancy if he 
wishes the land for rebuilding obviously does not apply if he 
wishes the land for some other purposes,!'^* and when the lease 
gave the landlord the right to the possession if he needed the > 
premises for building, it was held that equity would restrain 
an action at law by him to recover the possession on his 
mere statement that he wanted it without any showing that 
he did want it.^'^' It has been decided that, in such case, the 
tenant is entitled to a reasonable notice of the landlord's inten- 
tion to build, and that, if the latter enters and builds without 
such notice, he is guilty of trespass.!'''^ 

A provision that if either of the parties should see fit to term- 
inate the lease before its expiration he shall pay a sum named 
has been held to authorize either party to terminate it by paying 

in either party to terminate "at the ises would not be needed for some 

expiration of one year on sixty days' time. 

notice." The lease could be term- m HodgKins v. Price, 137 Mass. 13. 

inated' only at the end of the first its Russell v. Coggins, 8 Ves. Jr. 34. 

year by notice given sixty days be- jn do^ j Wilson v. Abel, 2 Maule 

fore. Fine Realty Co. v. City of New & §_ 541. jt was decided that, where 

York, 53 Misc. 246, 103 N. Y. Supp. the lessee covenanted that if thfl 

115. lessor should be desirous of taking 

172 Manhattan Life Ins. Co. v. Gos- any part of the land for building, it 
ford, 3 Misc. 509, 23 N. Y. Supp. 7. should be lawful for him to enter 

173 Woodland Cemetery Co. v. Car- on all or any part of the land to 
Till, 9 Leg. Int. (Pa.) 98. build and to do all such acts as 

In Donahue v. City of New York, might be necessary, the lessor might 

54 Misc. 415, 105 N. Y. Supp. 1069, resume possession of the whole land 

an injunction was issued to prevent for the purpose of building, and 

the city lessor from terminating such that the covenant was not merely 

a lease made by it, it appearing that that the lessor might go on the land 

the contemplated improvement was with materials and workmen for the 

merely planned, and that, even It purpose of building, 

immediately begun, the leased prem- i7e Shaw v. Hoffman, 25 Mich. 162. 



72 TENANCY FOR YEARS. § 12 

such sum.^'^ And the same construction has been placed on a 
provision that "if the lessor requires the premises before the 
term expires, he is to pay" a sum named to the lessee "for 
possession, otherwise, should the lessee require to leave before the 
term, he is to pay" a like sum>'^* 

A stipulation which gives the lessor power to terminate the 
tenancy or to resume possession as to "any part" of the premises 
gives him such power as to the whole,^^^ and it is immaterial that 
the lease, in stipulating for . a reduction of rent in a certain 
sum per acre for such part as may be resumed, names such a 
sum that the whole rent might be gone although the whole of the 
land is not resumed.^ *<> But a stipulation in general terms does 
not authorize the termination of the tenancy as to part of the 
premises.181 

There is in one state a decision that a municipality which has 
leased to an individual the municipal waterworks for a certain 
time may, without any provision to that effect in the instrument 
of lease, put an end to the tenancy on account of the drunkeness 
and incapacity of the lessee.^^^ This in effect involves the infer- 
ence of a special limitation to that effect from the circumstances 
of the ease. The decision is difi&cult to support on any recog- 
nized principle. 

In one case a provision that if the lessor failed to furnish 
sufficient power the lessee should have the right, on giving thirty 
days ' notice, to declare the lease at an end, was construed to give 
the lessor thirty days after notice in which to furnish such power, 
after which period the lessee would have a reasonable time for 
the removal of his property.^^^ 

(2) Theory of operation. Occasionally a stipulation that the 
lessee shall give up possession upon demand or notice from the 
lessor has been construed as a covenant merely, giving a right 
of action for damages to the lessor in case of breach, but not in 



Small V. Clark, 97 Me. 304, 54 i** Llddy v. Kennedy, L. R. 5 H. L. 

!4. 
181 Doe d. Rodd's Lessee v. Archer, 



Atl. 758. ^^*' 



ITS Bckhardt v. Raby, 20 XJ. C. Q. B. 

14 Bast, 245. 

182 Mahon v. City of Columbus, 58 
i7»Dae d. Gardner v. Kennard, 12 jjigg gj,,, 38 Am. Rep. 327. 
Q. B. 244; Doe d. Wilson v. Abel, 2 isa Channel v. Merrifleld, 206 111. 
Maule & S. 541. 278, 69 N. E. 32. 



§ 12 OPTION TO TERMINATE. 73 

any way affecting the estate of the lessee.i^* In other cases a 
stipulation that the lessee should relinquish possession upon 
demand of possession by the lessor or upon some particular con- 
tingency within the lessor's control has been regarded as entit- 
ling the lessor to recover possession upon the making of the 
demand or the happening of the contingency .^^^ And the view 
has also been taken that if the provision for the relinquishment 
of possession by the lessee on demand was accompanied by a 
provision that the lessor might then take possession, the lessor 
was authorized to maintain ejeetment.*^^ In several cases it has 
been decided that the stipulation in question was a covenant 
within the statute of 32 Hen. 8, c. 34,i8^ so that the benefit 
thereof would pass with the reversion, but it was at the same 
time in effect decided that the transferee might maintain pro- 
ceedings for possession by reason of the stipulation.i^s Properly 
speaking, a mere covenant could not give a right to maintain such 
proceedings.^*^ 

Assuming that the stipulation for the termination of the ten- 
ancy is not to be regarded as a mere covenant on the part of the 
lessee to give up possession, but as enabling the landlord to 
terminate the tenancy by a notice to that effect, the principle 
upon which such a stipulation operates is not clear. Occasionally 
the assertion by the landlord of his desire to resume possession 
is regarded as terminating the tenancy by way of a special limi- 
tation to that effect,^^" and the theory of a special limitation has 

184 Doe d. Wilson v. Phillips, 2 case did not provide that the lessor 
Bing. 13; Dennison v. Read, 33 Ky. might tafee possession. 

(3 Dana) 586; Wheeler v. Dascomb, ist See post, § 149 b (1). 

57 Mass. (3 Cush.) 285; Sloan v. iss Roberts v. McPherson, 62 N. J. 

Cantrell, 45 Tenn. (5 Cold.) 571; Law, 165, 40 Atl. 630; Id., 63 N. J. 

Bergland v. Frawley, 72 Wis. 559, 40 Law, 352, 43 Atl. 1098; Douglaslon 

N. W. 372. Realty Co. v. Hess, 124 App. Div. 

185 Eckhard v. Raby, 20 TJ. C. Q. 508, 108 N. Y. Supp. 1036; Hadley v. 
B. 458 (semble); Baxter v. City of Bernero, 97 Mo. App. 314, 71 S. W. 
Providence (R. I.) 40 Atl. 423; Man- 541; McClung v. McPherson, 47 Or. 
hattan Life Ins. Co. v. Gosford, 3 73, 81 Pac. 567, 82 Pac. 13. 

Misc. 509, 23 N. Y. Supp. 7. i89 See post, § 194 b. 

188 Doe d. Gardner v. Kennard, 12 i9o Manhattan Life Ins. Co. v. 
Q. B. 244, distinguishing Doe d. Will- Gosford, 3 Misc. 509, 23 N. Y. Supp. 
son V. Phillips, 2 Bing. 13, on the 7; CotUe v. Sullivan, 8 Misc. (N. Y.) 
ground that the lease in the earlier 184. 



74 TENANCY FOR YEARS. § 12 

been adopted when the provision was that the lessee should sur- 
render possession upon a sale by the lessor,' ^i or that the lessor 
might terminate the lease by giving sixty days' previous notice 
in ease he should sell/^^ ^j^q tenancy thus coming to an end, in 
the one case, upon a sale, and, in the other, upon a sale and 
the expiration of the notice. And the same construction has been 
put on a provision that in a certain contingency the lessee 
"agrees to cancel the lease. "i** In a case in the highest court 
of England,'^* two of the members thereof appear to have re- 
garded a clause declaring it lawful for the lessor, upon giving to 
the lessee three months' previous notice of an intention to resume 
possession for building purposes, to enter into possession, as in 
the nature of a clause creating a power of revocation in the les- 
sor,i85 while another member thereof appears to have regarded 
it as in the nature of a clause of re-entry enforcible by ejectment 
without any actual entry .1^* But there are occasional decisions 

191 Baxter v. City of Providence observe that the proviso goes on to 
(R. I.) 40 Atl. 423. give the remedy consequent upon 

192 Miller v. Levi, 44 N. Y. 489; that notice, namely, that it shall he 
Ronginsky v. Grantz, 39 Misc. 347, lawful for the lessor, his heirs and 
79 N. Y. Supp. 839. assigns to enter into the land de- 
ists Bruder v. Geisler, 47 Misc. 370, scribed in the notice. The eject- 

94 N. Y. Supp. 2. ment brought by the landlord, and 
191 Liddy v. Kennedy, L. R. 5 H. the remedy of the landlord, are there- 
L. 134. fore remedies not to be attributed 
195 Lord Chelmsford says: "What to the general powers of a condi- 
is the character of the clause in tion of re-entry, but are to be at- 
question? Is it a condition, is it a tributed to the special power given 
covenant, is it an agreement, or is by this particular reservation." 
It (which appears to be more clearly i9e Lord Hatherley says: "When 
a description of it) a power which is you find a power In the lessor to re- 
agreed upon between the parties that sume possession for building pur- 
the lessor shall possess, of determ- poses on giving notice, and the effect 
ing the interest of the tenant, and of that notice is to declare it lawful 
resuming possession on giving no- for him, the lessor, his heirs and 
tice," and later he speaks of "the assigns, to enter into possession, the 
power or condition or whatever it necessary conclusion is that posses- 
may be called." Lord Westbury sion shall be delivered up by the ten- 
says : "In this lease there is a pro- ant from the moment of the condition 
viso entirely collateral to the de- being fufilled which is to give to the 
mlse. It is a proviso enabling the lessor the right of resuming posses- 
lessor, on giving a certain notice, to sion. The lessor, by giving that 
resume possession of any part of notice, and by asserting his right by 
the land; and it is most material to action of ejectment, does what is 



§ 12 OPTION TO TERMINATE. 75 

that such a clause is not one of re-entry.^®'!' 

As appears from the cases above referred to, the courts have 
not followed, nor even asserted, any general rule as to the theory 
of operation of a provision empowering the landlord to terminate 
the tenancy, and it may perhaps be said to be a question of the 
construction of the particular language in each case. The par- 
ticular language used, however, has, in the adjudications, been 
but slightly adverted to, the courts having been apparently gov- 
erned rather by consideration of what they regarded as desirable 
under the circumstances of the caSe. A mere agreement by the 
lessee to give up possession upon demand by the lessor, or upon 
a certain contingency within the latter's control, does not seem 
readily susceptible of construction as a limitation or a condition, 
giving the lessor a right to recover possession rather than dam- 
ages. But if the language of the lease is susceptible of such 
construction, there is, it seems, on principle, no objection to con- 
struing it as creating a special limitation upon the contingency 
of the lessor's exercise of his volition to terminate the tenancy, 
indicated either informally or in the manner specified, as by 
notice, or merely by a particular disposition of the property, such 
as a sale. If the tenancy, however, is limited to terminate upon 
a sale, it must so terminate without reference to the landlord's 
wishes in that regard. It would seem, therefore, to the advantage 
of the lessor to provide that the tenancy shall come to an end 
upon a sale or upon some other contingency named only when a 
notice of the lessor's desire, or of the vendee's desire, to that 
effect is given to the lessee. If the language is construed as giv- 
ing the lessor merely a right of re-entry upon the lessor's notifi- 
cation of his desire to end the tenancy, the tenancy would con- 
tinue until the right is legally enforced.i** 

equivalent in law to entry, and es- for some purposes, a power of revo- 
tablishes his right to recrover posses- cation operating even by force of the 
sion through the medium of eject- statute of uses has been assimilated 
ment." to such a condition. See Chance, 

There is, no doubt, a considerable Powers, § 279; Sugden, Powers (8th 
resemblance between a power of re- Ed.) 363. 

vocation, created in connection with i97 Miller v. Levi, 44 N. Y. 489; 
an estate for years, which can oper- Manhattan Life Ins. Co. v. Gosford, 3 
ate at common law, apart from the Misc. 509, 23 N. Y. Supp. 7. 
statute of uses, and a common-law "s See post, § 194 d. 
condition of re-entry, and indeed. In Millan v. Kephart, 18 Grat. 



76 TENANCY FOR YEARS. § 12 

The question as to the mode of operation of the stipulation for 
the termination of the tenancy at the lessor's option might have 
a bearing on the question whether a transferee of the lessor is 
entitled to the benefit of such an option. If it be regarded as a 
covenant, such transferee would seem to have the right to de- 
mand the performance of the covenant as of any other covenant 
affecting the land,^®^ and it has apparently been so decided.^o" 
And it would also be enforcible against an assignee of the lessee. 
In the English case above referred to in the House of Lords, one 
of the members of the court, who apparently regarded the clause 
as creating a "power," said that it is "a thing taken out of the 
demise by the individual owner who makes the demise, and it is, 
therefore, a thing incidental to the estate vested in him, and 
passes with that estate to his grantees or alienees of the rever- 
sion. "201 jjj ^jjat case, however, the right of the lessor, after 
having transferred his reversion in part of the land, to join with 
his transferee in giving notice of an intention- to resume pos- 
session, and in enforcing their right to possession, was supported 
under a local statute giving every landlord the same remedies as 
the original lessor upon the agreements contained in the lease. 
Ordinarily, a power of disposition or of revocation is personal 
and cannot be transferred.^''^ There are other cases in which 
the right of a transferee of the lessor's reversionary estate to 
exercise the option to terminate has been recognized, without, 
however, any clear statement of the theory on which this is to be 
regarded as based.^os In two cases the right of the lessor so to 

(Va.) 1, it ■was decided that, the 541; McClung v. McPherson, 47 Or. 

instrument of lease having been de- 73, 81 Pac. 567, 82 Pac. 13. But see 

stroyed, it was a question for the ante, at note 189. 

jury whether a stipulation for re- 201 Lord Westbury in Liddy v. Ken- 

linquishment of possession by the nedy, L. R. 5 H. L. 152. 

lessee was a collateral limitation, a 202 See 1 Tiffany, Real Prop. | 2&2. 

condition, or a covenant A ques- 203McDanlel v. Callan, 75 Ala. 327; 

tion more unsuited for decision by a Aydlett v. Pendleton, 114 N. C. 1, 

body of laymen could not readily be ig g ^ 971. j^g ^ Baneford v. Hay- 

^°^^^- ley, 12 East, 464. In the latter case 

199 See post. § 149. it was held to be exercisible by a 

200 Roberts v. McPherson, 62 N. J. devisee of the lessor, though in terms 
Law, 352, 43 Atl. 1098; Hadley v. given only to the lessor, "his execu- 
Bernero, 97 Mo. App. 314, 71 S. W. tors or administrators." 

Law, 165, 40 Atl. 630; Id., 63 N. J. In McCllntock v. Loveless, 5 Pa. 



§ 12 OPTION TO TERMINATE. 77 

do after having made a conveyance has been denied.^* 

A provision of this character has been decided to be enforcible 
against an assignee of the lessee.^"^ In one case it was held that 
where the lessor was given the right to terminate the tenancy on 
paying the value of the tenant 's improvements, and the leasehold 
had been assigned and reassigned with the result that the lessor 
was uncertain as to who was entitled to payment of the sum, the 
lessor, having given the stipulated notice to the original lessee 
before the assignment by the latter, might implead the various 
claimants of the leasehold, tendering in court the value of the 
improvements, and so obtain an adjudication that the tenancy 
was terminated. 206'207 The lease in this case contained a provi- 
sion that its covenants and agreements should be succeeded to 
by and be binding upon the respective assigns of the parties. 

In any case in which the provision for the termination of the 
leasehold estate at the lessor 's option can be construed as a special 
limitation, it would obviously operate as against such estate in 
the hands of an assignee of the lessee as well as in the hands 
of the lessee himself. As regards the rights of a transferee of 
the lessor, a special limitation terminating the leasehold at the 
option of the "lessor" might, it seems, be qixite readily construed 
as terminating it at the option of the lessor or of one substituted 
in his place by means of a transfer by him. 

(3) In case of sale. A provision empowering the landlord 
to terminate the tenancy on making a sale of the premises, or 

Dist. R. 417, it was held that such 49 N. Y. Supp. 1021; Small v. Clark, 

a provision did not enure to the ben- 97 Me. 304, 54 Atl. 758. 

eflt of the lessor's transferee, since 205 Aydlett v. Pendleton, 114 N. C. 

it was not a covenant or condition, 1, 18 S. E. 971. 

but a "reservation," and should be So in Douglaston Realty Co. v. 

strictly construed. It is certainly Hess, 124 App. Div. 508, 108 N. Y. 

not a "reservation" in the common- Supp. 1036, where the termination by 

law meaning of the term. sale was conditioned on payment of 

In Adler v. Liowenstein, 52 Misc. compensation for the tenant's re- 

556, 102 N. Y. Supp. 492, It was held pairs and improvements. There ref- 

that the right to cancel passed to a erence is made to the fact that the 

grantee of the lessor, partly for the covenant was in terms binding on 

reason, it seems, that it was stipu- the lessees "legal representatives," 

lated that the agreements of the and hence bound assigns, 
lease should be binding "on the par- 206, aw Estabrook v. Stevenson, 47 

ties and their legal representatives." Neb. 206, 66 N. W. 286. 

204 Griffin v. Barton, 22 Misc. 228, 



78 TENANCY FOR YEARS. § 12 

-providing that siich a sale shall have the effect of terminating 
the tenancy, is quite frequently found.^"* That a sale shall 
have the effect of terminating the tenancy has been inferred from 
the presence of a stipulation for damages in case the lessor 
sellSj^"* and even, it seems, from a clause reserving the right to 
sell.^^'' In one case, however, it was decided that a provision 
for payment by the lessor of the value of the lessee's improve- 
ments in case of sale did not involve any right to regard the 
tenancy as terminated by a sale.^^i 

An oral stipulation,terminating the tenancy on a sale of the 
reversion, cannot be shown to alter the terms of a written lease.212 

We have before referred to the question of the mode in which 
such a clause shall be construed as operating, a question upon 
which the authorities give but little satisfaction.^i^ '^q -will here 
state a few cases in which the courts have decided whether, in 
the particular case, the provision operated to terminate the ten- 
ancy without reference to the landlord's desire in that regard. 
In one case it was held that where the term was limited to end 
on a sale of the premises, the term came to an end on such sale, 
so as to entitle the lessee to the stipulated compensation for his 
loss of the balance of the term, though the purchaser was willing 
to continue the lessee as tenant.^^* But on the other hand it has 
been decided that the lessee could not claim the benefit of a pro- 
vision that in case of sale the landlord should give sixty days' 
notice and should return a deposit made to secure rent, and should 
pay a sum named to the tenant, the lessor having a right to sell 

208 Harrison v. Pinkney, 6 Ont. 210 Wallace v. Bahlliorn, 68 Mich. 

App 225; Jochen v. Tibbels, 50 Mioh. 87, 35 N. W. 834. And see Callaghan 

33, 14 N. W. 690. And see, as to v. Hawks, 121 Mass. 298. 

provisions for compensation to the 211 Randolph v. Helps, 9 Colo. 29, 

lessee, post, § 12 e (5). 10 Pac. 245. 

In Newell v. Magee, 30 Ont. 550, it 212 Randolph v. Helps, 9 Colo. 29, 

was held that, in a provision that 10 Pac. 245. 

if the place were sold, the lessee 213 See ante, § 12 e (2). 

would give up possession at the end 214 Morton v. Weir, 70 N. Y. 247. 

of any year and allow any incoming j^n,j ^ee Cliilds v. Skillin, 39 Misc. 

"tenant" to plough the land after §25, 81 N. Y. Supp. 348. 

harvest, the word "tenant" includ- in Buhman v. Nickels & Brown 

ed purchaser. Bros., 1 Cal. App. 266, 82 Pac. 85, it 

200 Johnston v. King, 83 Wis. 8, was held, that under a provision that, 

53 N. W. 28. In case of sale, the lessee would quit 



§ 12 OPTION TO TERMINATE. 79 

subject to the tenancy if he so desired.^i^ In another case it 
was decided that a provision that the lessee should give posses- 
sion at the end of the then current year, in case the lessor should 
sell, did not terminate the tenancy on such sale, since it might 
be waived by the lessor, and that a relinquishment of possession 
would have to be made and accepted, or at least demanded, in 
order to terminate the tenancy .^^^ And a provision for relin- 
quishment of possession by the lessee in case of sale, on being 
paid a reasonable valuation for the unexpired term, was held not 
to terminate the tenancy upon the making of a sale and con- 
veyance, so as to entitle the lessor to possession, the reasonable 
valuation not having been paid.^i^ 

The question might arise whether, under a provision for the 
termination of the tenancy upon a sale and notice of a certain 
period, the landlord may, by refraining from giving the notice, 
continue the tenancy after the sale, but there appears to be no 
reported case in which this question is considered. 

Aprovisidn that "this lease will expire after three years from" 
its date "if the leased property is sold" was construed as pro- 
viding for the expiration of the lease at once on the sale of the 
property, if this took place after the three years, and not as 
providing that if a sale took place during the three years the 
lease should come to an end at the end of that period.^^^ Under 
a provision that the lessee should vacate within a reasonable time 
after sale, a notice of sale given on the twenty-third day of April, 

and surrender the premises upon his "desire to terminate the lease and 

thirty days' .written notice, such repossess the" premises, and that 

sale terminated the lease. "thereupon" the lease might be term- 

215 Foley V. Constantino, 43 Misc. inated "in the following manner," 
91, 86 N. Y. Supp. 780. And in Cal- and then provided that the parties 
laghan v. Hawbes, 121 Mass. 298, should choose arbitrators to de- 
it was decided that a clause giving termine what damages should be 
the lessor a right to sell on giving paid on account of such termination, 
two months' notice did not preclude the notice terminated the lease be- 
a sale without notice, subject to the fore any: arbitration, it being evi- 
lease. dently intended that the act of the 

216 Dudley v. Estill, 6 Leigh (Va.) lessor alone should be effective to 
562. terminate the tenancy. Smith v. 

21T McDaniel v. Callan, 75 Ala. Rasin, 84 Md. 642, 36 AU. 261. 
327. But where the lease provided aisHickox v. Seegner, 123 Wis. 

that at a certain point in the term 128, 101 N. W. 357. 
the lessor might notify the lessee of 



80 TENANCY FOR YEARS. § 12 

requiring the lessee to vacate on the first of June, was regarded 
as allowing a reasonable time.^^^ 

An oral agreement for sale, not complying with the statute of 
frauds, has been regarded as a "disposing" of the premises 
within a clause providing that, in such ease, the lessee would 
vacate.22* 

A merely colorable sale, that is, a transaction having the out- 
ward appearance of a sale but which is not intended actually to 
transfer the beneficial interest, is not within such a stipiilation,^^! 
and the question whether there is an actual sale, or merely a col- 
orable one, made for the purpose of getting rid of the lease, is 
one of fact on the evidence.222 The sale may, it seems, be an 
actual one within this requirement, even though made to the 
lessor 's wif e,223 and in the case of a sale by the members of a firm, 
who had made a lease, the fact that the sale was to one of the 
firm has been held not necessarily to show it to be otherwise than 
in good faith, though on a nominal consideration, the character 
of the consideration bearing merely on the bona fides of the 
transaction.22i The tenant cannot, it has been held, question 
the iona fides of the sale if the purchaser offers to continue him 
as tenant.225 Nor can he object that the conveyance to the 

218 Cooper v. GamblU, 146 Ala. 184, There was held to be a sale -within 
40 So. 827. There it is stated that such a provision when the lessor con- 
the "reasonable time" is not to be veyed a life estate to his wife, which 
dietermined with reference to the she conveyed to a trustee with power 
time which may be required by the of sale, and he sold under the power, 
tenant to find similar premises for Aydlett v. Pendleton, 114 N. C. 1, 
purposes of occupancy. 18 S. E. 971. 

=M Lumbers v. Cold Medal Fur- 224 Dunn v. Jaffrays, 36 Kan. 408, 
niture Mfg. Co., 30 Can. Sup. Ct. 55. 13 Pac. 781. 

221 Muzzy v. Allen, 25 N. J. Law (1 225 AUenspach v. Wagner, 9 Colo. 
Dutch.) 471; Ela v. Bankes, 37 Wis. 127, 10 Pac. 802. 

89; Budlong v. Budlong, 31 Wash. 228, Where the lease provided that the 

71 Pac. 751; Ogle v. Hubbel, 1 Cai. lessees should have a certain sum 

App. 357, 82 Pac. 217. out of the proceeds if the building 

222 See Dunn v. JafEray, 36 Kan. should he sold, and should retake cs?- 
408, 13 Pac. 781; Davis V. Schweikert, tain fixtures in the building if it 
130 Cal. 143, 62 Pac. 411. should not be sold, but should be 

223 See Ela v. Bankes, 37 Wis. 89; demolished at the end of the term, 
Budlong V. Budlong, 31 Wash. 228, 71 it was held that in the absence of 
Pac. 751; Davis v. Schweikert, 130 fraud the lessees had no right to 
Cal. 143, 62 Pac. 411. complain of a sale by the lessor at 



§ 12 OPTION TO TERMINATE. 81 

purchaser does not convey a perfect title.^** 

(4) Notice to lessee. The lessor should, it seems, in any case 
give notice of a reasonable length of his intention to terminate 
the tenancy,227 \)^i quite ordinarily there is an express provision 
for a notice of a certain length. Such a provision must be strictly 
complied vsrith as regards the time at which it is given,-^^ and it 
has been held that a provision for a notice of a certain number 
of days vras not satisfied by a notice requesting the tenant to leave 
"as soon as practicable. "229 "Where the lease provided that the 
lessee should vacate if the lessor desired to sell, "upon notice 
of such desire being given to him, ' ' a notice to deliver possession 
under the provision of the lease which did not state a desire to 
sell was regarded as insufficient,^*^ as is obviously a notice given 
for another purpose with no idea of terminatiug the tenancy. ^so* 
The person to give the notice is, it seems, the person who has the 
immediate reversion, whether the original lessor or his trans- 
feree.231 

The notice need not, it has been decided, be served personally 
as must a statutory notice, a service by mail being regarded as 
sufficient.232 gut where the lease provided for the giving of 
notice to "any person in possession of the" premises, a notice 
served on the tenant's mother, who happened to be on the prem- 

any price which he might choose to after the time for completion of the 

accept. Butterworth. v. Bliss, 52 harvesting of the crop, though not 

Barb. (N. Y.) 430. before. 

226 Dean V. Fail, 8 Port. (Ala.) 491. 230 Sloan v. Cantell, 45 Tenn. (5 

227 See Shaw v. Hoffman, 25 Mich. Cold.) 571. 

162, per Christiancy, J.; Cooper 230a Anderson v. Hebbard, 56 Misc. 
v. GamWU, 146 Ala. 184, 40 So. 827. 664, 107 N. Y. Supp. 824. 

228 Aiken v. Appleby, Morris 231 Cooper v. Gambill, 146 Ala. 184, 
(Iowa) 8. 40 So. 827; Aydlett v. Pendleton, II4 

229 People V. Gedney, 15 Hun (N. N. C. 1, 18 S. E. 971; Griffln v. Barton, 
y.) 475. But in MitcheU v. Mathe- 22 Misc. 228, 49 N. Y. Supp. 1021. 
son, 23 Wash. 723, 63 Pac. 564, where But in McClung v. McPherson, 47 
the lease provided that in case of Or. 73, 81 Pac. 567, 82 Pac. 13, the 
sale the lessee should remove on language was construed as calling 
receiving thirty days' written notice, for a notice by the lessor, and such 
a notice to remove within thirty a notice was held to be valid though 
days, "or as soon thereafter as you given after the lessor had trans 
have completed the harvesting of ferred the property. 

your crop," was regarded as valid, 2S2 Bloom v. Wainner, 2.5 Ky. Law 
entitling the lessor to possession. » Rep. 1646, 77 S. W. 930. 

L. and Ten. 6.. 



82 TENANCY FOR YEARS. § 12 

ises, was held to be insufficient.^^^ A notice to one of two ten- 
ants has been regarded as sufficient.^^* 

(5) Compensation to lessee. The lease, in providing that the 
lessor may terminate the tenancy or that a sale by him shall have 
that effect, sometimes stipulates for compensation to the tenant. 
Where the stipulation is merely for the payment to the tenant 
of "damages" caused him by the sale he is, it has been held, 
entitled to the value of the term.^ss Occasionally there is a stip- 
ulation for the payment to the tenant of a fixed sum as a "bonus" 
or liquidated damages in case of a sale. When it was stipulated 
that, on receipt of such sum and on notice of a certain period, the 
tenant should give up possession, and, on receipt of the notice, 
the tenant did give up possession, he could, it was held, recover 
the stipulated sum, although possession was not given until a few 
days after the date specified in the notice, and though the sale 
was not carried through. ^^e j^j^^ when it was provided that, if 
the land was sold, and the purchaser required the lessee to give 
up possession, the lessor should pay a certain sum to the latter, 
and a purchaser did so require, the lessor was regarded as liable, 
although the land was expressly sold subject to the lease.^^^ A 
provision for a bonus to the lessee in case of sale was held not to 
apply when the sale was to the lessee himself. ^ss A provision 
that the lessor may terminate the lease upon paying a sum 
named does not, it has been held, entitle the lessee to that sum 
because he is evicted by the lessor 's transferee under the mistaken 

233 Baragiano v. Villani, 117 111. When there was, on the lease of a 
App. 372. sawmill, a stipulation that in case 

234 Barrett v. Merchants' Bank, 26 of sale the lessor might terminate 
Grant. Ch. 409. But Adler v. Low- the lease, and that the lessee should 
enstein, 52 Misc. 556, 102 N. Y. Supp. have two months in which to finish 
492, is apparently contra. sawing the logs on hand, and that 

235 Depew V. Ketchum, 75 Hun, if any remained unsawed after the 
237, 31 Abb. N. C. 210, 27 N. Y. Supp. two months the lessee should, at the 
8. See Taylor v. Trohock, 85 111. 584, lessor's option, have the privilege of 
for the construction of a particular remaining in possession till the 
stipulation in this respect. logs on hand were all sawed, or 

236 Dierig v. Callahan, 35 Misc. 30, should be allowed the cost of hav- 
70 N. Y. Supp. 210. ing the logs sawed at another mill, 

237Hazen v. Hoyt (Iowa) 75 N. W. the lessor, by making a sale and de- 

647. manding possession, thereby showed 

238 Seaman v. Clvill, 45 Barb. (N. his election that the logs should be 

Y.) 2C7. sawed at another mill, and became 



§ 12 OPTION TO TERMINATE. 83 

supposition that the tenancy is one at will, such a clause not being 
in effect a provision for liquidated damages upon eviction.^^* 

Occasionally the lease provides for compensation to the tenant 
for improvements made by him, in case of a termination of the 
tenancy by the landlord's exercise of an option to that effect or 
by a sale of the premises,^*'' and questions may arise as to the 
construction of such language. A provision that, in case the 
landlord terminated the tenancy under his option so to do, the 
tenant should be compensated for the loss sustained by expend- 
itures incurred by him in fitting up the premises was held to 
entitle him to compensation for furnishings, such as carpets and 
window curtains, not, however, the entire cost of fitting up but 
only the loss sustained on account of such expenditures by the 
abridgement of the term.^^i And when the lease provided that, 
on a sale terminating the tenancy, the lessee should be entitled 
to payment for his improvements, the price to be settled by arbi- 
tration if they could not agree thereon, it was held that upon 
a sale the lessee 's right to payment became absolute, and he had 
a right of action against the lessor in ease the latter refused to 
submit to arbitration.^*^ a provision for compensation to the 
tenant for his improvements in case of a sale within three years 
was held not to apply when a mere contract to sell was made 
within that time, the contract by its terms not to be consumated 
until after the three years.^*^ A provision that the lessee would 
vacate on thirty days' notice and that the lessor would pay him 
for any crops already planted does not entitle him to payment for 
his crops if he fails to vacate on such notice.^** 

It has been decided that the tenant is entitled to damages 
if the landlord, under a stipulation for a termination of the ten- 
ancy in case of a sale of the premises, obtains possession by a 
merely colorable sale,^*^ and a like decision was rendered when 
the lessor had a right to terminate the tenancy if he desired to 
cease using the land for particular crops, and obtained possession 

liable for the cost of such sawing. 242 Morton v. Weir, 70 N. Y. 247, 

Crouch v. Parker, 40 Barb. (N. Y.) 26 Am. St. Rep. 583. 

94. 243 Stewart v. Pier, 58 Iowa, 15, 

239 Harrison v. Jordan, 194 Mass. 11 N. W. 711. 

496, 80 N. E. 604. " 244 Outhouse v. Baird, 121 App. Div. 

240 See Estabrook v. Stevenson, 47 556, 106 N. Y. Supp. 246. 

Neb. 206, 66 N. W. 286. 245 Davis v. Schwelkert, 130 Cal. 

241 Pratt V. Paine, 119 Mass. 439. 143, 62 Pac. 431. 



84 TENANCY FOR YEARS. | 12 

by a notice to the tenant that he so desired, which was proven to 
be false.2*® Eecovery was in one of these cases based upon the 
theory that such a fraudulent ouster of the tenant constituted an 
eviction, 24T b^t it might more properly, perhaps, be regarded as 
on account of the fraud or deceit involved in such a transac- 
tion.^*^ It has in one ease been explicitly decided that a false 
representation, made in good faith by the landlord, that he has 
sold to another, does not involve an eviction or breach of the 
covenant for quiet enjoyment.^** 

f. Option in the lessee to terminate. In several cases a stip- 
ulation giving to the lessee the right to terminate the tenancy 
before the regular end of the term has been recognized as valid 
and enforcible,^^" as has a provision, substantially similar in 
effect, in terms authorizing the lessee to "surrender" at his own 
volition.251 In one state, however, such a power in the lessee has 
been regarded as of questionable validity.^s^ 

2*8 Salzgeber v. Mickel, 37 Or. 216, ering them unsuitable for occupation. 
60 Pac. 1009. Post, § 182 m, n. 

247 Salzgeber v. Mickel, 37 Or. 216, In "Lane t. Nelson, 167 Pa. 602, 31 
60 Pac 1009. ^^^- ^^^' ^^ ^^ decided that a pro- 

248 In Cowling T. Dickson, 5 Ont. ^^'^^^ ^^'^ *^^ ^^^^^ ^^°''^^ ^""^ ^ 
App. 549. it was held that, even .f ''^^^^ ,"f* ^'^ ^^^^^ ^^ ^^ ^^''"l'^ 



"occupy" the premises meant so long 

as he held under the lease, and did 

possession in consequence of the ^^t enable him to relieve himself 



though the tenant did not relinquish 



landlord's false assertion of a sale 
he could recover for loss occasioned 



from liability for rent by relinquish- 
ing possessroui especially in view of 

by his consequent failure to plant ^ p^vlsion authorizing either party 

crops. The case was clearly regard- ^^ terminate tlie tenancy at the end 

ed as an action for deceit. ^j ^^y y^^^ ^^ ^^^^^ j^^^j^^^g, j^^^j^^ 

2« Lumbers y. Gold Medal Fur- 251 Brown v. Fowler, 65 Ohio St. 

niture Mfg. Co., 30 Can. Sup. Ct. 55. 507, 63 N. E. 76; Goelet v. Spofford, 

250 Palmer v. Wallbridge, 15 Can. 55 N. Y. 647; Reich v. McCrea, 37 

Sup. Ct. 650; Jenkins v. Clyde Coal N. Y. St. Rep. 620, 13 N. Y. Supp. 

Co., 82 Iowa. 618, 48 N. W. 970; Den 650; Dierig v. Callahan, 35 Misc. 30, 

d. Stedman v. Mcintosh, 26 N. C. (4 70 N. Y. Supp. 210; Hooks v. Forst, 

Ired. Law) 291, 42 Am. Dec. 122; 165 Pa. 238, 30 Atl. 846. 

Cooke v. Norris, 29 N. C. (7 Ired. A provision allowing the tenant 

Law) 213; Hendry v. Squier, 126 Ind. to abandon the property and to be 

19, 25 N. E. 830, 9 L. R. A. 798 (sem- reUeved of all obligation does not re- 

ble); Hooks v. Forst, 165 Pa. 238, quire the lease to be cancelled of 

30 Atl. -846. And see the cases in- record. Van Meter v. Chicago & 0. 

volving the right of the lessee to M. Coal Min. Co., 88 iDwa, 92, 55 N. 

terminate the tenancy on account of W. 106. 

physical injury to the premises rend- 252 That such a provision render? 



§ 12 OPTION TO TERMINATE. 85 

In England a provision authorizing the lessee to terminate the 
tenancy at any time is most unusual if not unknown, .but it is 
frequently there provided, in the ease of a lease for a term of 
years, twenty-one for instance, that the lessee may "break" it 
at the end of a shorter period, usually seven, or fourteen years, 
or both, upon giving a specified notice.^^^ Similar in effect is a 
lease for seven, fourteen, or twenty-one years, it being held that, 
in the case of such a tenancy for a term of uncertain duration, 
the option is with the tenant alone,^^* unless it be expressly 
reserved to the lessor also,^^^ or to either party .25« Such a power 
to break "if the parties so think fit" cannot be exercised, it has 
been decided, without the consent of both.^s'' 

The theory on which such an option in the lessee to terminate 
is to be regarded as operative is not considered in the eases. It 
would seem that they must be based on the view that such a 
provision for the termination of the leasehold interest at the 
lessee's option is in effect a "special limitation, "*®8 ^e effect 
being that, without more, his interest expires upon a notice by 
him that such is his desire, or, if the lease requires a notice of 
a certain length, upon the expiration of the notice. 

The right to exercise the option to terminate the tenancy under 
such a provision vests, it has been decided, in the assignee of the 
lessee,259 or in his personal representative on his death.^e" The 
lessee cannot, after he has assigned, exercise the power, even 

the lease absolutely invalid seems 399; Doe d. Webb v. Dixon, 9 'East, 

to be tlie opialon of the court in 15; Fallon v. Robins, 16 Ir. Ch. 422; 

Eclipse Oil Co. v. Soutli Penn Oil Com. v. Sheriff. 3 Brewst. (Pa.) 537. 

Co., 47 W. Va. 84, 34 S. B. 923. In 2o5Goodright v. Mark, 4 Maule & 

Reese v. Zinn, 103 Fed. 97, in the S. 30. 

United States Court for West Vir- zsa Lucas v. Rideout, L. R. 3 H. 

ginia, it is stated that "the con- ii. 153; Roe d. Bamford v. Hayley, 

tract is void for want of mutuality," 12 East, 464. 

citing numerous authorities, none of 257 Fowell v. Tranter, 3 Hurl. & C. 

YThich appear to support the state- 453. 

ment, -with the exception of the ease 2D6 See ante, § 12 d. 

just referred to. 25flHalbert v. Bruce, 9 Ky. (2 A. 

253 See e. g., Grey v. Friar, 4 H. L. K. Marsh.) 60; Roe d. Bamford v. 

Cas. 565; Bury v. Thompson [1895] Hayley, 12 Bast, 464. 

1 Q. B. 69^. 260 Roe d. Bamford v. Hayley, 12 

2e4Dann v. Spurrier, 3 Bos. & P. East, 464. 



86 TENANCY FOR YEARS. § 12 

though the result is that he is subjected to a continuing liability 
under his covenant for rent.^®^ 

If the lease authorizes the lessee to terminate the tenancy only 
at a certain time, he cannot terminate it at any other time,262 the 
question of his right in this respect being merely one of the con- 
struction of the lease.263 Likewise, it is a question of the con- 
struction of the particular lease whether a performance of all 
the covenants by the lessee is a condition precedent to the lessee's 
right to terminate the tenancy.^®* 

It has been said that, even in the absence of any provision as to 
notice of an intention to exercise the power to terminate the 
tenancy, a reasonable notice to that effect must be given.^es Fre- 
quently, however, the lease contains a provision for notice, and 
this must be strictly complied with. So it has been held that 
where the lessee was authorized to terminate the tenancy at the 
end of fourteen years, by giving six month's notice immediately 
preceding the expiration of the fourteen years, a notice expiring 
at another time was not sufficient, even though the lessor under- 
stood what was intended.^*^ A provision authorizing the lessee 
to terminate by sixty days' notice is not satisfied by twenty days' 

2M Seaward v. Drew, 78 Law T. construction of the particular leases, 
(N. S.) 19. in May v. Rice, TO8 Mass. 150, 11 
262 A right in the tenant to give up Am. Rep. 328, where the tenancy was 
rooms the first day of February does held to be terminable at any time, 
not) authorize him to give them up on ^64 Porter v. Shephard, 6 Term R. 
the twenty-sixth. Reich v. McCrea, 665; Grey v. Friar, 4 H. L. Gas. 565. 
37 N. Y. St. Rep. 620, 13 N. Y. Supp. In 2 Piatt, Leases, 463, it is said that 
650. See, also, Woodbridge Co. v. "whenever the power of determln- 
Hires Co., 19 App. Div. 128, 45 N. ing the lease is given to the lessee, 
Y. Supp. 991, afd., without opinion, it is advisable, for the lessor's securi- 
163 N. Y. 563, 57 N. E. 1129. ty, to make the exercise of it con- 
ass In Baker v. Adams, 59 Mass. ditional on the lessee's previous pay- 
(5 Cush.) 99, a lease made June 1, ment of rent and performance of 
for five years, providing that rent covenants, ^s the fear of being burd- 
should be paid by boarding the lessor ened with a continuance of the term 
and his family between November is generally a powerful inducement 
and May, and that either party to the faithful discharge of his 
might terminate the lease by giving duties." 

six months' previous notice, was con- ^^^ Goodright v. Richardson, 3 

strued as requiring the notice to ex- Term R. 462. 

pire at the end of a year of the term. aes Cadby v. Martinez, 11 Adol. & 

This case Is distinguished, on the E. 720. 



§ 12 DESTRUCTION OF THE TERM. 87 

notice.^o'f and an oral notice is not suflS.cient when the lease pro- 
vides for a written one.^^s But a notice need not recite the pro- 
vision authorizing the termination,269 and it is sufficient if clear 
and unambiguous in terms. ^'''^ 

A provision that the lease should expire upon the "abandon- 
ing" of a pier to be constructed by the lessee was decided not to 
enable the lessee to terminate the lease, as against his creditor 
who had a lien on the pier, by the execution of an instrument 
by which in terms he undertook to ' ' abandon and yield up ' ' the 
pier to the lessor.^'^i 

g. The destruction of the term — (1) General considera- 
tions. "We have considered thus far the case of the termination of 
a tenancy for years in accordance with the limitations of the lease 
by which it is created, whether this be at the end of the period 
named, or, by reason of a "special limitation," upon the happen- 
ing of a contingency before the end of such period. "We will now 
consider the various cases in which, without reference to the 
period named by the lease or to any special limitation thereof, 
the tenancy may come to an end either by the voluntary con- 
current action of the landlord and tenant, the voluntary action 
of one of them, or the action of the law without reference to their 
desire or intention. Such premature termination of the tenancy 

267 Hendry v. Squier, 126 Ind. 19, be able to stop unless" the rent is re- 
25 N. E. 830, 9 L. R. A. 798. duced, was regarded as sufficient. 

268 Legg V. Benion, Willes, 43; Kit- Bury v. Thompson [1895] 1 Q. B. 696. 
tie V. St. John, 7 Neb. 73. But it was held that, when the lease 

269 Where the lease provided for authorized the tenant to terminate it 
its termination by the lessee if it at any quarter day corresponding to 
I'fecame impracticable to continue it, the first day of the term by a six 
a notice reciting that he terminated months' notice prior thereto, a 
it "as provided in the lease" was notice that "I intend to surrender you 
regarded as sufficient. Jenkins v. the tenancy of this house on or he- 
Clyde Coal Co., 82 Iowa, 618, 48 N. fore" such a quarter day was too 
W. 970. And see Giddens v. Dodd, uncertain and ambiguous, it mean- 
3 Drew. 485. i^^S, apparently, that he intended to 

270 See post § 199 enter into negotiations to surrender, 
Where there was a proviso for ^ thing which could be done only 

termination by the lessee at the end with the landlord's assent. Garden 

of seven or fourteen years, on a six v. Ingram, 61 Law T. (N. S.) 729. 
months' notice, a letter reading "I 271 Hagan v. Gaskill, 42 N. J. Eq. 

see my first seven years will be de- 215, 6 Atl. 879. 
termined Dec. 25, 1894. I shall not 



88 TENANCY FOR YEARS. § 12 

may be conveniently termed a "destruction" thereof as dis- 
tinguished from its "expiration" in accordance with the inten- 
tion of the parties as expressed at the time of the making of 
the lease. 

(2) Merger — (a) The general doctrine. In ease the tenant's 
estate and the estate in reversion come together in one person, the 
former estate is, ordinarily at least, "merged" in the latter and 
the tenancy thereby comes to an end.^^^ Qq ^ji^ estate of a sub- 
tenant may be merged in that of the original tenant.^^^ 

In equity, it is said, the doctrine of merger will apply only 
when it accords with the intention of the parties.^^* If this be so, 
it would seem that in jurisdictions where equitable defenses are 
allowed at law, or where rules of equity are controlling upon all 
the courts, the operation of the doctrine may be considerably 
restricted.2Ts Presumably it will be applied even in equity, if no 
contrary intention appears and no evident injustice results. It 
does not appear that equity ever intervened to prevent the opera- 
tion of merger at law, however great the resulting hardship. 

(b) Quantum of the reversionary estate. As regards the 
quantum of the reversionary estate, it is necessary only that it 
be as great as or greater than the estate asserted to be merged. 
Hence, an estate for years may merge in a fee simple estate, an 

272 2 Blackst. Comm. 177; Dynevor 274 Brandon v. Brandon, 31 Law 
V. Tennant, 13 App. Cas. 279; Otis v. J. Ch. 47; Snow v. Boycott [1892] 3 
McMillan, 70 Ala. 46; Ferguson v. Ch. 110; Ingle v. Vaughan Jenkins 
Etter, 21 Ark. 160, 76 Am. Dec. 361; [1900] 2 Ch. 368; Capital & Coun- 
Liebschutz v. Moore, 70 Ind. 142, 36 ties Bank v. Rhodes [1903] 1 Ch. 631; 
Am. St. Rep. 182; Carroll v. Ballance, Bostwick v. Frank Field, 74 N. Y. 207; 
26 111. 9, 79 Am. St. Rep. 354; Colla- Spencer v. Austin, 38 Vt. 258. Wil- 
mer v. Kelley, 12 lowa^ 319; Denham bur v. Nichols, 61 Vt. 432, 18 Atl. 
V. Sankey, 38 Iowa, 269; Wahl v. 154, would seem to involve an ap- 
BarroU, 8 Gill (Md.) 288; Story v. plication of such a doctrine. 
TJIman, 88 Md. 244, 41 Atl. 120; Gunn 275 The English Judicature Act, § 
V. Sinclair, 52 Mo. 327; Higgins v. 25, subs. 4 (36 & 37 Vict. c. 6ff), ex- 
Turner, 61 Mo. 249; Hudson Bros', pressly provides that there shall not 
Commission Co. •*■. Glencoe Sand & be any merger by operation of law 
Gravel Co., 140 Mo. 103, 41 S. "W. 450, only of any estate the beneficial inter- 
62 Am. St. Rep. 722; Kershaw v. est in which would not be deemed to 
Supplee, 1 Rawle (Pa.) 131. be merged or extinguished in equity. 

273 Webb V. Russell, 3 Term R. See, also, In re Stafford, 105 App. 
393; Wahl v. Barroll, 8 Gill (Md.) Div. 46, 94 N. Y. Supp. 194. 

288. 



§ 12 * MB3HGER. 89 

estate for life or an estate for years,^^* and it may kappen that an 
estate for years is merged in another estate for years of less dura- 
tion. For instance, if immediately after making a lease for ten 
years the lessor makes a concurrent lease for five years, the second 
lessee becomes reversioner for the period of five years,^''' and if 
Ms estate and that of the prior lessee become vested in one and 
the same person, the ten-year term is merged in the five-year 
term. 278 

(c) Estates held in different rights. In order that merger may 
occur, it is ordinarily necessary that the two estates be held by 
the same person in the same right. If, for instance, the rever- 
sioner obtains the leasehold as executor of the lessee,^^^ or if one 
has the term in his own right and the reversion in right of his 
wife,2S'' or if he has the leasehold in his own right and the rever- 
sion as another's administrator,^^! there is no merger. There is 
some authority for the view that this exclusion of merger when 
the estates are held by a person in different rights does not apply 
if a person having one estate in a fiduciary capacity or in right 
of another thereafter acquires the other estate in his own right 
by his voluntary act, as distinguished from the act of the law.^^^ 

(d) No merger if estate intervenes. The interest of a subten- 
ant will not merge in that of the original landlord, since merger 
will not occur when, as it is expressed, an intermediate estate 
intervenes.283 Por instance, if a lessor for years makes a con- 
current lease for years,^^* and thereafter conveys the fee simple 
to the first lessee, there is no merger .^^^ Nor is there any merger 
when a sublessee takes a conveyance of the reversion upon the 
original lease,**^ or when the lessee, having made a sublease, 
makes a concurrent lease to his own lessor for the term of the 

276 3 Preston, Conveyancing, 182, 7 Hurl. & N. 507. The question is 

219. discussed at length, in 3 Preston, 

iJTSee post, § 146 d. Conveyancing, 273 et seq. See, also, 

278 Stephens v. Bridges, 6 Madd. & Challis, Real Prop. (2d Ed.) 82. 

Gel. 66; 3 Preston, Conveyancing, ^ss 3 Preston, Conveyancing, 107. 

195. 284 See post, 146 d. 

2T9 Co. Litt. 338 b. 286 3 Preston, Conveyancing, HI, 

28.0 Piatt V. Sleap, Cro. Jac. 275. citing Bro. Abr., Exting., pi. 54. 

281 Chambers v. Kingham, 10 Ch. ssa .Logan v. Green, 39 N. C. (4 
Div. 743. Ired. Eq.) 370; Tolsma v. Adair, 32 

282 Jones V. Davis, 5 Hurl. & N. 766, Wash. 383, 73 Pac. 347. 



90 TENANCY FOR YEARS. § 12 

sublease.^*'' An intervening interesse termini^ however, that is, 
a right to a term of years to commence in the future, not being 
an estate, will not, it has been decided, prevent the merger of a 
prior term in the reversion,^*^ though the merger of such prior 
term does not affect the validity of the interesse termini?^^ 

(e) In case of interesse termini. Upon the theory that an 
interesse termini will not merge, it has been held that if one hav- 
ing an estate for years takes a lease to commence on the expira- 
tion of his term, his interest under this second lease will not 
merge upon his acquisition of the reversion.^^o However sound 
may be this view, using the expression interesse termini in the 
sense of a term to commence in futuro, it is difiBcult to see why, 
using the expression in the sense of a present term not yet re- 
duced to possession,29i such a term should not merge to the same 
extent before as after the lessee's entry. 

Since a term to commence in the future is not an estate, a 
present estate for years will not merge in such a future term.^*^ 

(f ) On transfer under judicial process or decree. It is imma- 
terial, as regards the question of merger, whether the title to the 
reversion and that to the leasehold come together by reason of a 
voluntary conveyance, a conveyance under judicial process, on the 
foreclosure of a lien, or by act of the law, such as descent.^^*' 2^* 
In the case, however, of a sale and conveyance under judicial 
process .against the lessor or on foreclosure, a distinction should 
be noted as regards the date of the lien, the enforcement of which 
is involved in such sale and conveyance. For instance, in the 
case of a sale under a mortgage or judgment which existed as a 
lien prior to the lease, and of a purchase at such sale by the lessee, 
the latter acquires not the reversion but a paramount title, the 
same title which he would have acquired by a conveyance in fee 
made at the time of the creation of the lien, and there is no 
room for the application of the law of merger. There is at least 
one decision ^ss ^g the effect that merger occurs in such a case, 

257 Burton v. Barclay, 7 BIng. 745. 290 Doe d. Ravlings v. Walker, 5 

258 3 Preston, Conveyancing, 207; Barn. & C. 111. 
Doe d. Rawlings v. Walker, 5 Bam. 291 See post, § 37. 

& C. Ill; Anouymous, 2 Dyer, 112 a; 292 Hyde v. Warden, 3 Exch. Div. 

Logan V. Green, 39 N. C. (4 Ired. 72. 

Eq.) 370. 293, 294 See post, §§ 147, 150. 

259 3 Preston, Conveyancing, 208; 295 Moston v. Stow, 91 Mo. App. 
Anonymous, 2 Dyer, 112 a. 554, citing Gunn v. Sinclair, 52 Mo 



§ 12 MERGER. 91 

thereby ignoring, as is frequently done,298 the fact that, by a 
sale and conveyance under a lien prior to a lease, not the rever- 
sion but a paramount title passes. 

It has been decided in one case that when the reversion passes 
to the tenant by reason of his purchase at a judicial sale or by 
reason of a conveyance from the purchaser at such sale, the 
merger is not affected by the existence of a right of redemption 
from the sale in the reversioner, which right is duly exercised.^^'' 
In some jurisdictions no conveyance would be made in pursuance 
of the sale until the expiration of the period of redemption, and 
there would be no legal title in the tenant to support a merger, 
which could then be supported on equitable principles alone. 

(g) Effect of contract to convey. A mere contract by the 
landlord to convey the reversion to the tenant, or a contract by the 
tenant to convey the reversion to the landlord, vesting, as it does, 
only an equitable interest in the purchaser, would not ordin- 
arily authorize the application of the doctrine of merger in a 
court at law, but in equity a different view would be taken, and 
the doctrine would be applied in such case, provided this was 
compatible with the apparent intention of the parties.^*^ The 
same view has apparently been adopted where there is no sep- 
arate equity jurisdiction.^ss The doctrine would not, however, 
it seems, be applied in favor of the intending purchaser until he 
had paid or tendered the price,^"" and the fact that the contract 
of purchase calls for a conveyance only at a future time presum- 
ably shows the absence of any intention that a present merger 
shall occur.sci The decisions on the question of the effect of 

327; Higgins v. Turner, 61 Mo. 249, N. C. 35, 13 N. Y. Supp. 843; Knerr 

in which cases it did not appear v. Bradley, 105 Pa. 190. And see 

■whether the lien was prior or sub- McMahon v. Jacoway, 105 Ala. 585, 

sequent to the lease, but it is stated 17 So. 39. 

broadly that such a sale extinguishes soo See Rooney v. Gillespie, 88 

the tenancy, without the suggestion Mass. (6 Allen) 74; Campbell v. Bab- 

of any distinction as regards the cock, 26 Abb. N. C. 35, 13 N. Y. Supp. 

priority of the lien. 843; New York Bldg. Loan Banking 

208 See post, §§ 73 c, 78 n. Co. v. Keeney, 56 App. Div. 538, 67 

297 Otis V. McMillan, 70 Ala. 46. N. Y. Supp. 505; Knerr v. Bradley, 

298Capel V. Girdler, 9 Ves. Jr. 105 Pa. 190; Wade v. South Penn Oil 

509. See ante, § 13 g (2) (a). Co., 45 W. Va. 380, 32 S. E. 169. 

2»9 Bostwick V. Frankfield, 74 N. aoi Smith v. Brannan, 13 Cal. 107. 
Y. 207; Campbell v. Babcock, 26 Abb. 



92 TENANCY FOR YEARS. §12 

such a contract of sale as extinguisliing the tenancy are, it may 
be remarked, almost entirely lacking in a discussion of the matter 
on principle, and the above statements in that regard are to be 
considered as inferences from the decisions rather than as based 
on the explicit language of the courts. 

(h) Partial merger. A merger will take place as to a portion 
only of the leased premises whenever the reversion and the lease- 
hold in such portion only meet in one persoUj^^^ ^j^j the tenancy 
will continue as before in the residue of the premises. A partial 
merger will also frequently take place when an undivided interest 
in the reversion meets with an entire or^ partial interest in the 
leasehold, or an undivided interest in the leasehold meets with 
an entire or partial interest in the reversion.^os But if it appears 
that an undivided interest in the reversion is in a different share 
of the land from that in which an undivided interest in the lease- 
hold exists, the meeting of these interests will not, it has been 
said, cause a merger. For instance if, A and B being tenants in 
common of land, A leases to C and B leases to D, the undivided 
interest of C would perhaps not merge in the reversion of B upon 
their meeting in one person, it clearly appearing that such re- 
version and leasehold are in different shares.^^* 

(i) Merger as regards third persons. A merger will in some 
cases not be allowed to operate to the disadvantage of "third per- 
sons-^^s For instance, the estate created by means of a sublease 
will not be affected by the merger of the sublessor's estate in the 
original reversion.^o^ Nor will a lien or charge created by the 
tenant be affected by the fact that the leasehold is for other 
purposes thereafter merged in the reversion.^"'' The courts, how- 

302Badeley v. Vigurs, 4 El. & Bl. 3. N. Y. Supp. 380; Lansing v. Pine, 

71; Yates v. Cole, 2 Brod. & B. 4 Paige (N. Y.) 639. But see Mar- 

660; Dighton v. Greenvil, 2 Vent, tin v. Tol)in, 123 Mass. 85. 

327; Higgins v. California Petrol- 304 3 preston. Conveyancing, 89; 

eum & Asphalt Co., 109 Cal. 304, 41 Challis, Real Prop. (2d Ed.) 77. 

Pac. 1087; Nellis v. Lathrop, 22 305 3 Preston, Conveyancing, 447, 

Wend. (N. Y.) 121, 34 Am. Dec. 285. 454. See Denham v. Sankey, 38 

»o3 3 Preston, Conveyancing, 89; Iowa, 269. 

Challis, Real Prop. (2d Ed.) 77; 308Thre'r v. Barton, Moore, 94; 

Hill V. Reno, 112 111. 154, 54 Am. St. "Webb v. Russell, 3 Term R. 393. 

Rep. 222; Simmons v. MacAdaras, sot 3 Preston, Conveyancing, 447, 

6 Mo. App. 297; Holmquist v. Bava- 454. So it is decided in Buffum v. 

rian Star Brew. Co., 1 App. Div. 347, Deane, 70 Mass. (4 Gray) 385, that an 



§ 12 DESTRUCTION OP THE TERM. 93 

ever, always gave full effect to the doctrine of merger for the 
purpose of destroying the interest of a contingent remainderman, 
although the merger was the result of collusion between the life 
tenant and the vested remainderman.^os 

(3) Surrender. If the tenant makes surrender of the lease- 
hold estate, there is thereafter no estate to support the tenancy 
and the latter immediately comes to an end except as against 
third persons.^"* 

(4) Forfeiture. Upon the enforcement by the landlord of a 
forfeiture of the tenant's estate for years, either for disclaimer 
of the landlord's title, by force of a condition of re-entry in the 
lease, or under a statute authorizing a recovery of possession for 
default in the payment of rent or performance of covenants, the 
tenant's estate comes to an end and the tenancy no longer 
exists.^i" 

(5) Eviction. In theory, an eviction of the tenant by the 
landlord does not bring the tenancy to an end, but it frequently 
has this effect, the tenant treating it as final for all purposes.*^* 
An eviction under title paramount ordinarily brings the tenancy 
entirely to an end.^^^ g^jt if the paramount title is based on a 
mortgage or on a sale under a lien or judicial process and a 
right of redemption exists, the tenancy will not come to an end, 
it seems, till the expiration of the time for redemption.^is 

(6) Taking under power of eminent domain. The effect of 
a judgment ia condemnation proceedings is ordinarily to vest the 
reversion and the leasehold in one legal person, either the state 
or the corporate entity to which the power of eminent domain 
has been delegated, and this, it would seem, presents a clear case 
for the application of the doctrine of merger. The courts have 
not, however, considered the possibility of applying this doctrine 

attachment upon the leasehold Is mortgagor could not, after acquiring 

not affected by a subsequent merger, the reversion, assert a claim for the 

But it has been decided that a rent reserved, 
mortgagee of the leasehold does not sos Fearne, Contingent Remain- 
acquire a lien on the reversion if ders, c. 5; Challls, Real Prop. 84. 
the mortgagor, after making the aoo See post, f§ 182 g, 191. 
mortgage, purchases the reversion, sio gee post, chapter XIX. 
since the reversion Is not merged in sii gee post, §§ 182 e (1), 185 h. 
the lesser estate. Collamer v. Kel- 312 gee post, §§ 182 e (2), 186 a (3). 
ley, 12 Iowa, 319. It was there de- 313 gee post, §§ 182 e (2), 186 a (3). 
cided, however, in effect, that the 



94 TENANCY FOR YEARS. § 12 

of merger in this connection, and have indeed not discussed the 
question of the cessation of the tenancy as a result of the con- 
demnation proceedings except as such discussion might be in- 
volved in that of the discontinuance of the tenant's liability for 
rent ; and upon this latter question the cases are by no means in 
unison, as will hereafter appear.^i* Any decisions to the effect 
that liability for rent still continues seem necessarily to involve 
the view that the tenancy is still in existence. 

In case a part only of the premises is condemned for public use, 
the tenancy is still, it seems, to be regarded as existing in .the 
residue. And the tenancy would still exist if an easement only 
is taken, this not divesting either the leasehold or reversionary 
estates.315 

There may be a "special limitation" in the lease providing 
that the tenancy shall cease upon the taking of the premises or a 
part thereof for public use.^^^ 

(7) Bankruptcy. The bankruptcy of the lessee does not, by 
the great weight of authority, have the effect of terminating the 
tenancy,*" provided the lease contains no provision to that 
effect,*!* and unless the trustee in bankruptcy refuses, as here- 

31* See post, § 182 k. cial limitation providing for the 

S15 See post, § 182 k. cesser of the term upon bankruptcy, 

316 See Munigle v. City of Boston, or may provide for re-entry in such 
85 Mass. (3 Allen) 230, where it was case. See Roe d. Hunter v. Gal- 
held that this was the effect of a liers, 2 Term R. 133; Gray, Re- 
provision that "if the lessor shall straints on Alienation of Prop. § 
sell the said house, or the city shall 101; Woodfall, Landl. & Ten. (IGth 
cut off said premises, the said ten- Ed.) 286. See post, § 194 e (5). 
ant shall consent thereto." A proviso for re-entiry "if the 

317 In re Ells, 98 Fed. 967; In re lessee, his executors, administrators 
Arnstein, 101 Fed. 706; In re Pen- or assigns shall become bankrupt" 
newell, 119 Fed. 139; Wildman v. was held to refer to the bankruptcy 
Taylor, 4 Ben. 42, Fed. Cas. No. 17, only of the person who for the time 
654; Oden v. Sassman, 68 N. J. Eq. being was possessed of the term, and 
799, 64 Atl. 1134, afg. 67 N, J. Eq. there was no right of forfeiture up- 
239, 57 Atl. 1075, 91 Am. St. Rep. on the bankruptcy of the original 
423; Woodward v. Harding, 75 App. lessee after having assigned the 
Dlv. 54, 77 N. Y. Supp. 969; "Witt- leasehold to another. Smith v. 
haus v. Zimmerman, 91 App. Dlv. Gronow [1891] 2 Q. B. 394. A pro- 
202, 86 N. Y. Supp. 315; In re Cur- vlso in substantially the same lan- 
tis, 109 La. 171, 33 So. 125, 78 Am. guage was held to apply in case or 
St. Rep. 445. the bankruptcy of the survivor ol 

318 The lease maj-^ contain a spe- certain executors to whom the ten- 



I 12 BANKRUPTCY OF TENANT. 95 

after explained, to accept the leasehold interest, it will pass with 
the bankrupt's other property to such trustee.^^* 

The contrary dicta and decisions to the effect that the adjudica- 
tion of the tenant's bankruptcy terminates the tenancy and re- 
vests in the landlord the right of present possession subject to 
the temporary requirements of the trustee are, it is submitted, 
absolutely unsound.^^** In two of these cases the courts appar- 
ently regard the termination of the tenancy as a necessary result 
of the inability to prove, in the bankruptcy proceedings, a claim 
for rent thereafter accruing ;32oa j^ Q^g^ j^q reason whatever is 
given for the dictum,^^^ while, in still another, such view seems 
to be based on the theory that this would be the fairest practical 
result for all parties.**^ That the question of the right to prove 
a claim for future rent is independent of the question of the 
termination of the tenancy seems almost self-evident. The in- 
ability to prove such a claim is a result, as has been frequently 
stated, of the fact that such future rent is not a debt.^23 ^g to 
the suggestion that to give the adjudication of bankruptcy the 
effect of terminating the tenancy will be fair at all parties, 
exactly the contrary is the case. Without reference to whether 
the bankrupt is the original lessee or his assignee, if the rental 
value of the property is less than the rent reserved, it may be a 

ant had bectueathed his interest in assignment in violation of the cove- 
trust. See Doe d. Bridgman v. nant would not terminate the lease 
David, 1 Cromp. M. & R. 405. unless the lease so provided, that is, 

319 See post § 158 a (2) (j). unless the estate vested in the lessee 

320 In In re'sreck, 8 Ben. 93, Fed. ^^s limited to expire on such an 
Cas. No. 1,822, Blatchford, J., says: event. The landlord would not, in 
"The lease was undoubtedly can- ™««t states, even have the option of 
celed by the bankruptcy, as, by its terminating the tenancy in the ab- 
terms, it could not be assigned with- ^ence of a proviso for re-entry 
t.ut the written consent of the land- (Po^t, § 152 j). In New York, at 
lord." The correctness of this state- ^^^ Present time, such right is given 
ent depends on the words of the ''y the summary proceeding stat- 
lease, which are not stated in the "te. See post, § 274 g. 

report. A covenant not to assign ''"^'^^ re Jefferson, 93 Fed. 948; 

does not apply to an assignment by Bray v. Cobb, IM Fed. 270. 

operation of law, such as by bank- =21 in re Hinckel Brew. Co., 123 

ruptcy, unless it is expressly so Fed. 942. 

stated (see post, § 152 f), and fur- 322 in re Hays, Foster & Ward Co.. 

thermore, even if in terms applying 117 Fed. 879. 

to such an assignment, the fact of 323 See post, § 166. 



96 TENANCY FOR YEARS. § 12 

decided hardship on the landlord to treat the tenancy as term- 
inated. The theory of the bankrupt act, as constrned by the 
courts, is to relieve the bankrupt from those debts only which can 
be asserted against him in the bankruptcy proceedings, but the 
effect of regarding the tenancy as ended is to relieve the bank- 
rupt lessee from the liability for rent, which cannot be asserted 
against him in that proceeding. 

When the leasehold has, before the adjudication, been assigned 
by the lessee to another, the possible hardship upon the land- 
lord of regarding the bankruptcy of the tenant as terminating the 
tenancy is still more evident. It may be that the original lessee 
is perfectly solvent, and he, as is elsewhere, stated, remains liable 
on the covenants of the lease. If the bankruptcy of his assignee 
is to end the tenancy and so terminate the landlord's right to 
enforce the covenant for rent or other covenants, one who has 
bound himself by a covenant in a lease may relieve himself from 
all liabilities thereon by the simple device of assigning the lease- 
hold to a "man of straw" and subsequently procuring, directly 
or indirectly, an adjudication of bankruptcy as regards the latter. 
It does not seem to have been in any case suggested that the 
bankruptcy of the original lessee would terminate the tenancy 
if it occurs after he has assigned the leasehold, and that it could 
not have that effect is presumably conceded. 

If the rental value of the property is greater than the rent 
reserved, the hardship iavolved in regarding the tenancy as ended 
falls upon the creditors of the tenant. A leasehold still having 
a number of years to run is frequently in itself a valuable asset, 
and may be the only asset of the estate. It is difficult to perceive 
why this asset should be presented to the reversioner, and such is 
evidently the effect of regarding the tenancy as terminated.*^* 
It may furthermore be remarked that since an adjudication of 
ha/n^rnptcy has its legal existence only by reason of the bankrupt 
act, its operation should not be extended beyond the terms of 
the act. There is not the slightest suggestion in the act of an 
intention that an adjudication of bankruptcy should terminate 
a term of years previously vested in the tenant. 

32* In Atkins v. Wilcox, 44 C. C. that if the leasehold Is subject to a 
A. 626, 105 Fed. 595, 53 L. R, A. 118, merely nominal rent, it wxjuld not ' 
McCormick, J., suggests apparently be terminated by the adjudication of 



§ 12 DESTRUCTION OF THE TERM. 97 

That a tenant has made an assignment for the benefit of cred- 
itors is evidently no reason for regarding the tenancy as termin- 
atedj^^f* such assignee, as would any other assignee, becoming 
substituted in his place to the rights and liabilities incident to 
the relation of tenancy .*2« 

(8) Destruction of or injury to premises by unforeseen casu- 
alty. The question has frequently arisen whether destruction 
of or injury to part of the premises, ordinarily a building upon 
the land leased, terminates the liability for rent, and the great 
majority of the decisions are, as elsewhere stated,^^'^ to the effect 
that, apart from a statute or special stipulation to the contrary, 
the liability for rent continues as before. This view involves 
the view that the tenancy itself still continues. It has, however, 
been frequently decided in this country that the liability for rent 
ceases if the leased premises consist merely of a building or a 
part of a building without including any land, and the building 
is destroyed,^ 2^ and there are a number of cases in which it is 
specifically stated that the tenancy ceases in such a case, there 
being no longer any subject-matter on which the tenancy can 
operate.*^® 

Not infrequently there is an express stipulation that the liabil- 
ity for rent shall cease upon the destruction of the building on 
the leased premises. The question whether such a stipulation has 

bankruptcy, but that the rule might Utah Optical Co. v. Keith, 18 Utah, 
be otherwise if it is subject to a rent 464, 56 Pac. 155; Schmidt v. Pettit, 
equal to the value of the premises, g d. c. (1 MacArthur) 179. But 

325 See Reynolds v. Fuller, 64 111. not if the part leased is only In- 
App. 134. jured and is not destroyed. Turner 

320 See cases cited post, § 158 j. y. Mantonya, 27 HI. App. 500. 

32- See post, § 182 m. In Alnsworth v. Mt. Morlah Lodge, 

328 See post, § 182 m (2). 172 Mass. 257, 52 N. E. 81, where 

329 McMillan v. Solomon, 42 Ala. the third story in a building had 
356, 94 Am. Dec. 654; Ainsworth v. been leased "during the life of the 
Rltt, 38 Cal. 89; Stockwell v. Hun- building," the lessee covenanting to 
ter, 52 Mass. (11 Mete.) 448, 45 keep such part in good repair during 
Am. Dec. 220; Shawmut Nat. Bank the life of the building, the tenancy 
V. City of Boston, 118 Mass. 125; was regarded as terminated when 
Kerr v. Merchants' Bxch. Co., 3 Edw. fire substantially destroyed the third 
Ch. (N. Y.) 315; Winton V. Cornish, 5 story and so much of the lower 
Ohio, 477; Harrington v. Watson, 11 stories that it was impracticable to 
Or. 143, 3 Pac. 173, 50 Am. Rep. 465; rebuild the third story without re- 
Macnair V. Ames (R. I.) 68 Atl. 950; building other parts. 

L. and Ten. 7. 



98 TENANCY FOR YEARS. § 12 

the effect of terminating the tenancy in that event is primarily a 
question of construction. The eases bearing thereon are con- 
sidered elsewhere.**" 

(9) Untenantable condition of premises. In some states the 
view has been asserted that a mere untenantable condition of the 
premises will justify the tenant in relinquishing possession and 
refusing to pay further rent.*** It does not appear whether a 
relinquishment of possession under such circumstances involves 
a termination of the tenancy. 

(10) Expiration of the lessor's estate. In the absence of a 
statutory power or of an express power to that effect in the 
creation of the estate, one having a limited estate in land cannot, 
as against the person entitled in reversion or remainder, create 
an estate to endure beyond the termination of his own estate. 
This self-evident principle has been applied in the case of the 
making of a lease for years by a tenant for his own or another's 
life, the rights of the remainderman or reversioner being recog- 
nized as superior to any claim on the part of the lessee.**^ And 
so the expiration of the lessee 's estate by reason of a special limi- 
tation terminates the estate of his sublessee.*** It has also been 
decided that the expiration of the lessor's estate may be asserted 
by the tenant holding under the lease in defense to an action 
for rent or on covenants of the lease or by the liandlord to recover 
possession. This question we consider elsewhere.*** 

(11) Destruction of the lessor's estate. Upon the question 
whether the tenancy is destroyed as a result of the destruction of 
the lessor's estate, the authorities are not entirely clear. It is 
recognized that a subtenant is not affected adversely by a sur- 
render made by his landlord to the head landlord, that is, 
his right of possession under the sublease continues as before,**^ 
and the same appears to be the case when the sublessor's estate 
is merged in the original reversion.**® In both these cases, at 

330 See post, § 182 m (6) (d). cases cited post, § 15 b, note 588. 

331 See post, § 182 n. 333 Eten v. Luyster, 60 N. Y. 252; 

332 See e. g., Coakley v. Chamber- Bove v. Coppola, 45 Misc. 636, 91 
lain, 8 Abb.. Pr. (N. S.) 37, 38 How. N. Y. Supp. 8; Bruder v. Geisler, 47 
Pr. 483, 31 N. Y. Super. Ct. (1 Misc. 370, 94 N. Y. Supp. 2. 
Sweeny) 676; Mclntyre v. Clark, 6 334 See post, § 78 p (3). 

Misc. 377, 26 N. Y. Supp. 744; Guth- 335 See post, § 191 b; Sutton's Case, 

mann v. Vallery, 51 Neb. 824, 71 N. 12 Mod. 557. 

W. 734, 66 Am. St. Rep. 475; and ssb Thre'r v. Barton, Moore, 94: 



§ 12 DESTRUCTION OF THE TERM. 99 

common law, the subtenant thereafter not only retained the pos- 
session but he was free from liability for rent or upon the cov- 
enants of the sublease, on the theory that the right to rent and 
the covenants could not exist after the destruction of the sub- 
reversion to which they were incident.^*'' This rule has been 
changed in England by statute.^ss Whether it would ordinarily 
be recognized in this country does not appear. There are cases 
in which it is referred to without disapproval,^*^ while in one 
jurisdiction it has been decided that a subreversion which has 
been surrendered would not thus be regarded as extinguished in 
the original reversion to the disadvantage of the reversioner, but 
that it would still exist for the purpose of asserting the subten- 
ant's liability under his covenant for rent as well as under other 
covenants.*** And it has been decided that if the tenant, in 
making a surrender, reserves to himself the rent, the rent is not 
extinguished by the extinguishment of the subreversion, and he 
may transfer this right to the reversioner, and so the reversioner 
will have the rent incident to the subreversion though the sub- 
reversion itself is extinguished.**! Furthermore, it has been de- 
cided that the sublessee's liability for rent cannot be regarded 
as extinguished by the surrender of the subreversion when his 
conduct showed that he regarded his sublease as terminated and 
that he was holding as tenant at will of the original lessor,*** 
and he is liable if he actually attorns to the original lessor.***" 
A lessor who has accepted a conveyance of the leasehold from his 
tenant, if he treats the sublease as outstanding by collecting rent 
from the sublessee, cannot thereafter, it has been decided, con- 
tend that the subreversion has been merged.***'' 

Webb V. Russel, 3 Term R. 393; 3 Grundin v. Carter, 90 Mass. 15; Pratt 

Preston, Conveyancing, 448. v. Richards Jewelry Co., 69 Pa. 63. 

337 See cases cited in last preced- 340 Hessel v. Johnson, 129 Pa. 173, 
ing note. 18 Atl. 754, 15 Am. St. Rep. 716, 5 

338 8 & 9 Vict. c. 106, § 9. L. R. A. 851. 

33» Bailey v. Richardson, 66 Cal. 3*1 Beal v. Boston Car Spring Co., 

416, 5 Pac. 910; Krider v. Ramsay, 125 Mass. 157, 28 Am. St. Rep. 216. 
79 N. C. 354; McDonald y. May, 96 342 Appleton v. Ames, 150 Mass. 34, 

Mo. App. 236, 69 S. W. 1059. See 22 N. E. 69, 5 L. R. A. 206. 

Williams v. Michigan Cent. R. Co., 342a McDonald v. May, 96 Mo. App. 

133 Mich. 448, 95 N. W. 708, 103 Am. 236, 69 S. W. 1059. 
St. Rep. 458. That the sublessor 342b Bailey v. Richardson, 66 Cal. 

cannot recover rent after his sur- 422, 5 Pac. 910. 
render of the leasehold is decided in 



100 TENANCY FOR YEARS. § 12 

The enforcement of a forfeiture of the subreversion for breach 
of a condition of the original lease will defeat the estate of the 
subtenant ^*^ and so terminate his tenancy. 

If a mortgagor having the legal title grants a lease subsequent 
to the mortgage, upon the foreclosure of such mortgage and the 
expiration of all right of redemption, the lessee has no interest 
which he can assert as against one claiming under the fore- 
elosure,^** and the same rule applies in case of a sale under any 
other lien prior to the lease.^*^ 

If a mortgagee having the legal title makes a lease and the 
mortgagor redeems, the mortgagee's title thereupon coming to 
an end, the lessee or his assignee cannot retain the possession as 
against the mortgagor,**^ and the same is true if a purchaser at 
execution sale leases and the execution defendant subsequently 
redeems. 3*'^ 

It has been decided that a tenancy under a lease made by a 
husband and wife of land held by them jointly does not come 
to an end because she obtains a decree of divorce depriving him 
of all interest in the land.**^ 

(12) War and military occupation. It has been decided that 
the presence of hostile forces on or around the premises leased, 
rendering them incapable of occupation or utilization by the 
tenant, does not relieve him from liability for rent,^*® and this 
involves the view that the tenancy is not terminated in such case. 

(13) Death. The death of the landlord does not cause the 
tenancy to come to an end, but the reversion, with the rights 
incident thereto, passes to the devisee or legatee named in his 
will or, in case he dies intestate as regards this particular prop- 
erty, it passes to his heir or personal representatives, according 
to the character of the reversion as being realty or personalty.^^" 

The death of the tenant, likewise, does not terminate the ten- 
ancy, his interest under the lease passing to his personal repre- 
sentative.3^1 

3*3 See post, § 194 h, at note 188. 348 Emmert v. Hays, 89 111. 11. 

344 See post, § 73. 349 gee post, § 182 s. 

345 See post, 78 n (3). 330 See Jaques v. Gould, 58 Mms. 
34,6 Hungerf ord v. Clay, 9 Mod. 1; (4 Cush.) 384, and cases cited post, 

Willard v. Harvey, 5 N. H. 252; Holt § 147. 

V. Rees, 44 111. 30. 351 See Alsup v. Banks, 68 Miss. 

347 Morris v. Beebe, 54 Ala. 300. 664, 9 So. 895, 24 Am. St. Rep. 294, 



§ 13 TENANCY AT WILL. 101 

(14) Dissolution of corporation tenant. It has in England 
been decided that, upon the dissolution of a corporation which 
has a leasehold, the term comes to an end and the land reverts to 
the lessor ;3 51 a and it has in this country been asserted that if the 
leasehold is valueless, so that the receiver of the corporation re- 
fuses to accept it, the term comes to an end.^^^'' It being recog- 
nized that a receiver has the right to refuse to accept the lease- 
hold,35ic a,nd the corporation ^being no longer in existence so as 
to hold it, it seems inevitable that the estate itself should come to 
an end, it not being for the public good that such a damnosa 
haereditas should pass to the state. 

§ 13. Tenancy at will. 

a. When the tenancy arises — (1) Lease at will of lessee. 
A tenancy at will is stated by Littleton to exist "where lands or 
tenements are let by one man to another, to have and to hold at^ 
the will of the lessor by force of which lease the tenant is in 
possession. "352 Coke, in commenting on this passage, says : "It 
is regularly true that every lease at will must in law be at the ■ 
will of both parties, and therefore when the lease is made, to 
have and to hold at the will of the lessor, the law implieth it to 
be at the will of the lessee also; for it cannot be only at the 
will of the lessor, but it must be at the will of the lessee also. 
And so it is when the lease is made to have and to hold at the 
will of the lessee, this must be also at the will of the lessor ; and 
so are all the books that seem prima facie to differ, clearly rec- 
onciled. ' '3'^ While the later of these writers does not profess to 

13 L. R. A. 598; Mickle v. Miles, 1 the use of certain cotton seed "so 
Grant Cas. (Pa.) 320;- In re Wal- long as he remains on the place," a 
ker's Estate, 6 Pa. Co. Ct. R. 515; like quantity to be returned "at the 
Wilcox V. Alexander (Tex. Civ. App.) close of his lease." 
32 S. W. 562. And see post, § 150. ssia Hastings Corp. v. Letton 
In Charles v. Byrd, 29 S. C. 544, 8 [1908J 1 K. B. 378. 
S. E. 1, it was held that a lease was ssib Fidelity Safe Deposit & Trust 
not so personal as not to pass to the Co. v. Armstrong, 35 Fed. 567. See 
personal representative of the lessee. New Hampshire Trust Co. v. Tag- 
on his death, merely because it con- gart, 68 N. H. 557, 44 Atl. 751. 
tained stipulations as to the mode asie See post, § 158 a (2) (1). 
of cultivation, and provided that ssaLitt. § 68, adopted in 2 Blackst. 
certain improvements be made by Comm. 145. 
the lessee and that he should have 353 Co. Litt. 55 a. 



102 TENANCY AT WILL. § ^3 

differ from the earlier one, there is to some extent a contradiction 
in so far as he asserts a tenancy at will to arise, not only in the 
case of a lease at the will of the lessor, but also when the lease 
is in terms at the will of the lessee, this being, he says ' ' also at 
the will of the lessor;" and the question whether a lease thus 
in terms at the will of the lessee does necessarily create a ten- 
ancy terminable at the will of either party is one of some diiB- 
culty. 

In several cases in this country the courts have accepted Coke 's 
'statement literally and without question, holding that if a lease, 
without naming any term of enjoyment, gives the tenant a 
right to leave at any time and thus terminate all liabilities on 
his part, the lessor may compel him to leave at any time, that is, 
that he is a tenant at will.^** On the other hand, at common law, 
if one having a fee simple estate made a conveyance or demise 
to another accompanied by livery of seisin, without words of in- 
heritance or other limitation, a life estate was created in favor 
of the latter,3B5 and the fact that the lessee in such case was' 
given the option to terminate his tenancy at any time should not, 
it seems, reduce his freehold interest to a mere tenancy at will, 
but rather he should be regarded as having an estate for life 
subject to a right in him to terminate it. " That a lease in terms 
creating an estate for years contains such an option in the lessee 
does not render the latter a tenant at will merely,^^* and no more 
should its presence in what would otherwise be a conveyance 
in fee simple or for life have such an effect. Not only is the 
opposite view apparently opposed to those cases recognizing the 
validity of a term of years subject to such an option in the 
lessee, but it also seems opposed to the numerous decisions to 
be found in this country to the effect that there may be a convey- 
ance in fee for so long as the grantee may choose to occupy the 

354 Doe d. Pidgeon v. Richards, 4 C. (3 Dev. Law) 414; Eclipse Oil Co. 

Ind. 374; Knight v. Indiana Coal & v. South Penn Oil Co., 47 W. Va. 84, 

Iron Co., 47 Ind. 105, 17 Am. Rep. 34 S. E. 923; Beaucliamp v. Runnels, 

692; Cheever v. Pearson, 33 Mass. 35 Tex. Civ. App. 212, 79 S. W. 1105; 

(16 Pick.) 266; Western Transp. Co. Corby v. McSpadden, 63 Mo. App. 

V. Lansing, 49 N. Y. 499; Cowan v. 648; Reese v. Zinn, 103 Fed. 97. 
Radford Iron Co., 83 Va. 547, 3 S. B. 355 See ante, § 11 b. 
120; Den d. Mhoon v. Drizzle, 14 N. sso gee ante, § 12 f. 



§ 13 WHEN TENANCY ARISES. 103 

premises for a certain purpose, this in effect creating an estate 
terminable at the grantees' will.'*'' 

It has in England, apparently, in accordance with these views, 
been decided that a conveyance to one with a right in him to 
terminate the holding at any time creates in him a freehold 
estate.'** There the estate thus created in the absence of the 
insertion of the word "heirs" is a life estate merely, terminable 
at the will of the lessee, while under the rule prevailing in most 
of the states in this country, that the word "heirs" is not neces- 
sary for the creation of an estate in fee, the estate created would 
rather be one in fee terminable at the lessee 's option, unless the 
terms of the conveyance show a different intention.'*® There are 
several eases in this country which tend to support the view that 
such a conveyance creates an estate for life or in fee.'®" 

357 See cases cited, 1 Tiffany, Real ed to the lessor, his heirs or assigns. 
Prop. § 81. at the time of the expiration of the 

35S Beeson v. Burton, 12 C. B. 647; occupation of the said premises for 
In re King's Leasehold EJstates, L. R. sawmill purposes," was held not to 
16 Eq. 521; Zimbler v. Abrahams create a tenancy at will, and by im- 
[1903] 1 K. B. 577. plication the court asserted that it 

ss" See Reed v. Lewis, 74 Ind. 433. created a fee simple. This seems 

360 In Effinger v. Lewis, 32 Pa. not to be in accordance with Doe d. 
367, it was decided that a lease for Pldgeon v. Richards, 4 Ind. 374 and 
a term of years, with a provision Knight v. Indiana Coal & Iron Co., 
that the lessee, his heirs and assigns, 47 Ind. 105, 17 Am. Rep. 692, cited 
might hold the premises as much in note 354, supra. The only differ- 
longer as he and they should think ence in the facts seems to be that in 
proper after the end of the term, at these latter cases the lessee asserts 
the same rent, conveyed a fee simple, his will to give up the lease by noti- 
And in Ely v. Randall, 68 Minn. 177, fying the lessor and by leaving, 
70 N. "W. 980, a lease for five years, while in the other he asserts his 
"with the privilege of holding it will by ceasing to use the premises 
longer" provided the lessee kept a as a sawmill yard. 
post-ofBce and store, and no longer. In Cole v. Lake Co., 54 N. H. 242, 
was held to give the lessee an in- 277, it was decided that when there 
terest to endure so long as he per- was a lease to the lessees "and their 
sonally kept the store, which could legal representatives during their 
not be beyond the term of his life, pleasure," since the words above 

In Gilmore v. Hamilton, 83 Ind. quoted showed an intention to create 
196, a written demise "for a certain an assignable estate, that is, not a 
rent, for such time as the lessee, his tenancy at will, the fact that it was 
heirs and assigns may occupy the "during the pleasure" of the lessees 
same for a sawmill yard," and pro- did not render it a tenancy at will. 
vlding that possession shall be yield- 



104 TENANCY AT WILL. | 13 

Coke 's dictum that such a lease at the will of the lessee creates 
a tenancy at will is, it is conceived, to be regarded as applying 
only in the absence of livery of seisin, which was in his day neces- 
'■ sary for the creation of an estate of freehold.^^^ That, if accom- 
panied by livery of seisin, such a lease created an estate for life is 
clearly asserted by high authority prior to his time,^^^ and there is 
nothing in the decisions referred to by him to lead to a differ- 
ent conclusion. If, however, the instrument lacks any formality 
of execution, such as a seal, which may be in the particular juris- 
diction necessary for the creation of a freehold estate, it will, as 
at common law, when unaccompanied by livery of seisin, create 
merely an estate at will. 

(2) Lease at will of lessor. The other branch of Coke's state- 
ment that "when the lease is made, to have and to hold at the 
will of the lessor, the law implieth it to be at the will of the lessee 
also," has been referred to with approval in several cases,^^^ and 
it seems that such a lease would at the present day ordinarily be 
construed as creating a tenancy at will.^** If, however, there 
is an express limitation of a greater estate, the mere fact that the 
lessor has an option to terminate the tenancy at any time will 
not, it seems, reduce the estate to one at will. For instance, if 
the lease in terms creates an estate for years, such an estate will 

3«i That his statement is to be so without livery," tuus asserting by- 
understood see Effinger v. Lewis, 32 implication that it would be other- 
Pa. 367; Sergeant Mannings note, 7 wise were the requirement of livery 
Man. & G. 47; Leake, Dig. Prop. 207. satisfied. In Y. B. 10 Edw. 4, 18 b. 

302 "A man leases to J. S. at the pi. 22, Littleton, J., says that "if 

will of the lessee, and held that if lease be made at me will of the 

it be by livery he has an estate for lessee or of a stranger, it is void, 

life, and no livery, then it is in for then he would have freehold, 

doubt; therefore quaere. Bro. Abr., which cannot be wiciiout livery of 

Estates, pi. 72, citing Y. B. 35 Hen. seisin." 

6, f. 63, pi. 3, where the first propo- 363 Doe d. Pidgeon v. Richards, 4 
sition seems to be assumed without Ind. 374; Cheever v. Pearson, 33 
question. In Keilw. 162, pi. 4, it Mass. (16 Pick.) 266; Den d. Hum- 
was said that where a lease is at phries v. Humphries, 25 N. C. (3 
the will of the lessee, "it will be Ired. Law) 362; Corby v. McSpadden, 
taken at the will of both the lessor 63 _Mo. App. 648. 

and lessee, for if it be taken at the 364 As in Den d. Humphries v. 

will of the lessee, peradventure, he Humphries, 25 N. C. (3 Ired. Law) 

would wish to have it for the term 362; Post v. Post, 14 Barb. (N. Y.) 

of his life, — and then tuis would be 253. 
a freehold which in no way can pass 



§ 13 WHEN TENANCY ARISES. 105 

be created subject to an option to terminate it,^*^ and so if the 
lease in terms creates an estate for life, and is properly executed 
for the conveyance of a freehold, the fact that the lessor is given 
an option to terminate the lessee 's estate does not, it would seem, 
make the holding one merely at will.^^® 

(3) Permissive possession. A tenancy at will may be created 
by a lease which expressly undertakes to create a tenancy at 
the will of Jjoth parties,^®'' and, as above indicated, such may be 
the effect of a lease at the will of the lessor or of the lessee. 
But apart from such cases, in which there is a particular refer- 
ence to the "will" of one or both parties, the tenancy may exist 
merely as a result of the taking of possession of land by permis- 
sion, "permissive possession," as it may be called, without any 
understanding as to the duration of the possession.''' ^^ In such 
a ease the tenant is under no obligation to remain in posses- 
sion nor is the owner under any obligation to let him remain, 
and consequently the tenancy may be discontinued at the will 
of either. Frequently, however, a permissive possession which 
would otherwise constitute a tenancy at will is, as w^ be seen 

385 See ante, § 12 e. , kins, 134 Cal. 564, 66 Pac. 793; Herrell 

"All that the passage cited from v. Sizeland, 81 111. 547; Kankakee & 

Coke means is that if there is a de- S. R. Co. v. Horan, 131 111. 288, 23 N. 

mise with no term fixed between the E. 621; Packard v. Cleveland, C. C. 

parties except the will of the lessor, & St. L. R. Co., 46 111. App. 244; 

then it Is implied by law to be also Dame v. Uame, 38 N. H. 429, 75 Am. 

at the will of the tenant." Per Cot- Dec. 195; Wilson v. Merrill, 38 Mich, 

ton, L. J., in In re Threlfall, 16 Ch. 707j Appleton v. Buskirk, 67 Mich. 

Div. 274. 407, 34 N. W. 708; Goodenow v. Al- 

366 See authorities cited in a learn- len, 68 Me. 308; Sanford v. Johnson 

ed note by Sergeant Manning in 7 24 Minn. 172; Leavitt v. Leavitt, 47 

Man. & G. At p. 45. N. H. 329; Lamed v. Hudson, 60 N. 

36T So it may be created by such Y. 102; Sarsfield v. Healy, 50 Barb, 

words as to hold "as long as both (N. Y.) 245; Den d. Humphries v. 

parties please" (Richardson v. Lang- Humphries, 25 N. C. (3 Ired. Law) 

ridge, 4 Taunt. 128), or "for so long 362- Howard v. Merriam, 59 Mass. 

as the parties shall mutually agree," (5 Cush.) 563; Johnson v. Johnson, 

with a provision that "either party ^3 ^ ^ ^g^. ^^^^^ ^ j^^^^ ^^^^^^ 

may put an end to" the relation. ^^.^^ ^3 R. I. 323, 50 Atl. 330; 

Say V. Stoddard, 27 Ohio St. 478. ' . . . q. „ r, o, 

■=aJ__---- ^, „ , „„ , , „„,. Robb V. San Antonio St. R. Co., 82 

368 Ellsworth V. Hale, 33 Ark. 633, 

^. -r ■ T 1,11 „. a T, n^ -^ TTail 71 Tex. 392, 18 S. W. 707; Rich v. Bol- 

St. Louis, I. M. & S. R. Co. T. Hall, 71 ■ ' ' 

Ark 302, 74 S. W. 293; Jones v. ton, 46 Vt. 84. 14 Am. Rep. «15; 
Shay, 50 Cal. 508; Goodwin v. Per- Webb v. Seekins, 62 Wis. 26, 21 N. W. 



106 TENANCY AT WILL. | 13 

later,*^9 by reason of the reservation or payment of a periodic 
rent, changed into a tenancy from year to year or other periodic 
tenancy. In some states, on the other hand, what is ordinarily 
termed a tenancy from year to year or month to month is known 
as a tenancy at will, some qualifying terms being, however, 
ordinarily introduced to distinguish it from a tenancy at will 
of such character as we are now discussing.^''" 

The permissive possession above referred to which constitutes 
a tenancy at will may arise under a variety of circumstances, 
frequently even though the parties intended to create a different 
relation. For instance, if one goes into possession under a void 
conveyance, the grantee or lessee is a tenant at will. This was 
the case at common law when a deed of feoffment was not ac- 
companied by livery of seisin but the feoffee entered, since he 
entered by the consent of the feoffor.^'i And, likewise, if one 
enters under a conveyance in fee which is invalid under the 
statute of frauds, he becomes a tenant at will.^''^ 

The same principle has been quite frequently applied in the 
case of one entering under an invalid conveyance by way of 
lease,^'^^ ^s when it was invalid under the statutes of mort- 
main,3'* because unsealed,^'''' because not acknowledged or re- 
corded,^'^® because an improper execution of a power,^" or be- 
cause the lease was ultra vires^'^^ and such is primarily the 
status of one who enters under a lease which is invalid by reason 

814; Utah Optical Co. v. Keith, 18 373 See Hayes v. Atlanta, 1 Ga, 

Utah, 464, 56 Pac. 155. App. 25, 57 S. E. 1087. 

So the owner of a building who 3-4 Magdalen Hospital v. Knotts, 4 

moved it on the land of another App. Cas. 324; Bunting v. Sargent, 

pending negotiations for its purchase 13 Ch. Div. 330. 

by such other was held to be a ten- 375 Ecclesiastical Com'rs v. Merral, 

ant at will. Michael v. Curtis, 60 L. R. 4 Exch. 162; Arbez v. Exley, 

Conn. 363, 22 Atl. 949. Watkins & Co., 52 W. Va. 476, 44 S. 

369 See post, § 14 b (2). E. 149, 61 L. R. A. 957. 

370 See post, § 14 a, at notes 443 a, stb McCleran v. Benton, 73 Cal. 329, 
443 b. 14 Pac. 879, 2 Am. St. Rep. 814; Bal- 

371 Litt. § 70; Co. Litt. 57 b. timore & 0. R. Co. v. West, 57 Ohio 

372 Jackson v. Rogers, 2 Caines St. 161, 49 N. E. 344. 

Cas. (N. Y.) 314; Ezelle v. Parker, "7 Doe d. Martin v. Watts, 7 Term 

41 Miss. 520. And so where one en- R. 83. 

ters under an oral lease for life. 378 City of Bay St. Louis v. Han- 

Hooton V. Holt, 139 Mass. 54, 29 N. cock County, 80 Miss. 364, 32 So. 54 

B. 221. (city occupying under lease which it 



§ 13 WHEN TENANCY ARISES. 107 

of the statute of frauds.*^* Other cases of such permissive 
possession rendering one a tenant at will may occur in the ease 
of one who enters into possession by permission of the owner 
pending negotiations for a lease,**" or a sale^^i to him, and of 
one permitted to occupy pending the performancje of an exe- 
cutory contract for a lease to him.^sa 

(4) Lease not naming duration of tenancy. There are occa- 
sional decisions to the effect that a lease which fails to name the 
period for which the tenancy is to endure creates a tenancy at 
^jll 383 Such a lease, if insufficient to create a freehold estate be- 
cause not in writing or for any other cause, will no doubt have 
such an effect. It will constitute merely a case of permissive 
possession such as we have just been discussing. But these, de- 
cisions, so far as they may involve the view that a lease by one 
having an estate in fee, though sufficient in point of execution to 
create a freehold estate, will create a tenancy at will only, merely 
because no estate is expressly limited, are, it is conceived, 
erroneous. At common law such a lease, if accompanied by 

had no power to accept). In Rog- creating a life interest subject to 

ers V. Hill, 3 Ind. T. 562, 64 S. W. termination by sale. If the lease 

536, one taking possession under a were executed in the manner neces- 

void Indian lease was held to be a sary for the conveyance of a life 

tenant at will. interest. 

379 See post, § 25 g (1). The Massachusetts cases above 

3S0 CJoggan V. Warwicker, 3 Car. cited do not seem to accord with 

& K. 40; Lennox v. Westney, 17 Ont. earlier cases in the same state. In 

472; Fall v. Moore, 45 Minn. 515, 48 Hurd v. Gushing, 24 Mass. (7 Pick.) 

N, W. 404; Carteri v. Roberts, 140 169, it was decided that a grant and 

Cal. 164, 73 Pae. 81S. demise of land for an Indefinite time, 

381 Doe d. Tomes v. Chamberlain, 5 and so long as the salt works intend- 
Mees. & W. 14; Swart v. Western ed to be erected thereon should con- 
Union Tel. Co., 142 Mich. 21, 12 Det. tinue to be used, created an estate 
Leg. N. 609, 105 N. W. 74. for life, determinable on the lessee 

382 See post, § 65. ceasing to occupy the salt works. 

383 Murray v. Cherrington, 99 Mass. And in Cook v. Bisbee, 35 Mass. (18 
229; Gardner v. Hazleton, 121 Mass. Pick.) 527, a lease by which the 
494; Amick v. Brubaker, 101 MO. lessee covenanted to pa,y a yearlj 
473, 14 S. W. 627. So it has been rent so long as he should keep furn- 
held that a lease of land, to be held aces upon the premises, withoui 
until it is sold, creates a tenancy at naming any period, was held not to 
will only. Lea v. Hernandez, 10 Tex. be determinable at the will of the 
137. It might have been regarded as lessor. 



108 TENANCY AT WILL. § 13 

livery of seisin, created an estate for life,^^^ and the abolition 
of the latter requirement cannot cause it to have a lesser effect. 
The fact that the old authorities turn upon the question whether 
livery had been made is occasionally lost sight of.^^s In juris- 
dictions where the common-law requirement of words of in- 
heritance for the creation of a fee simple is no longer in force, 
such a conveyance might be regarded as passing an estate in 
fee. simple, except as the use of words of demise and lease only 
might exclude any inference of an intention to transfer the lessor's 
entire interest, that is, a fee simple estate.^s? This view, that such 
a lease creates a freehold estate rather than a mere tenancy at 
will, is in accord with the well recognized rule that a conveyance 
which is of doubtful meaning will be construed in favor of the 
grantee rather than the grantor. There are occasional decisions 
in this country which seem to recognize in somewhat obscure 
terms that such a lease may be effective to create, a freehold 
estate.^*^ 

384 See ante, note 9. So in Bro. Bac. Abr., Estates (HI). But that 
Abr., Leases, pi. 67, it is said: "If such passages In these earlier works 
I lease land to W. M., to hold till 100 do not refer to a case where the cod- 
pounds be paid, and without livery, veyanoe is otherwise sufficient to 
it is only a lease at will, for the create a freehold plainly appears 
uncertainty, but if he makes livery from the quotations in note 9, supra, 
the lessee will have it for life on con- aso in Wright v. Hardy, 76 Miss. 
dltion, implied to cease if the 100 524, 24 So. 697, it was decided, or 
pounds be levied." And see Blanford rather assumed, that an indenture 
V. Blanford, 3 Bulst. 100, citing the not naming any term was a convey- 
Bishop of Bath's Case, 6 Coke, 35, to ance in fee, although the words "de- 
the effect that if "one doth lease his mise and let" were used. 

land to one, being of a certain yearly ss- in Reed v. Lewis, 74 Ind. 433, 
value, until his debts are paid, 39 Am. Rep. 88, where a lease was 
this is but a lease at will without made to continue until a certain con- 
livery made, but if he makes livery, tingency, the court questioned wheth- 
he hath a freehold." er it did not create a fee. 

385 See e. g., Murray v. Cherrington, in Sweetser v. McKenney, 65 Me. 
S9 Mass, 229. So in Woodfall, Landl. 225, and Holley v. Young, 66 Me. 520, 
& Ten. (16th Ed.) 239, the author leases for a term named and also 
(or editor) says that "where a per- giving the lessee the right to retain 

son lets land to another without lim- possession as much longer as he de- 
iting any certain or determinate es- sired were upheld, apparently, as giv- 
tate, a tenancy at will is thereby ing the lessees possession for an in- 
created," citing Com. Dig., Estates definite period. In the first case the 
(H 1), as he might also have cited court says that the lessor was "es- 



§13 



WHEN TENANCY ARISES. 



109 



(5) Tacit acquiescence in another's possession. There are a 
number of cases which suggest the view that the mere failure 
of the owner of land to object to the unauthorized holding of 
possession by another constitutes the latter a tenant at wiU of 
the owner, as showing what we have before referred to as a 
"permissive possession, "sss tut it is difficult to see how this can 



topped" to bring dispossessory pro- 
ceedings, but, it is submitted, the 
doctrine of estoppel was not appli- 
cable. If it was a lease for an in- 
definite time, equivalent to a lease in 
fee or for life, this was sufficient rea- 
son for his inability to dispossess 
the lessee. If, on the other hand, 
the lease created only a tenancy at 
will, the lessor would not have been 
estopped to dispossess the tenant. 
In neither of these cases does the 
court undertake to name the lessee's 
estate, and as before stated, it does 
not seem that the lessee could con- 
tinue to hold at his option unless 
he had a freehold estate. 

In Thurber v. Dwyer, 10 R. I. 355, 
where a lease was in terms "to hold 
for so long a time as a certain build- 
ing on the lessor's land next ad- 
joining should remain in the same 
location," the court said that were 
the lease valid, though it must term- 
inate upon the removal of the build- 
ing without notice, no notice to quit 
would avail to put an end to it. 
This seems to be equivalent to saying 
that it conveys a fee simple, determ- 
inable only upon the removal of the 
building.- The court held that the 
lease was invalid, because not record- 
ed as required by statute, in the case 
of leases creating estates greater 
than a year. 

In Warner v. Tanner, 38 Ohio St. 
118, it was held that a lease to B. for 
the erection of a "cheese house" on 
the premises, the land to revert to 
the lessor on the cessation of the 



manufacture of cheese thereon, was 
a lease for life, terminq,ble upon the 
cessation of such use of the land. 
The court refers to the fact that the 
lease required the lessee to make 
improvements on the land, and that 
he did so, as showing that it was not 
a lease at will or from year to year 
It may, however, be questioned 
whether the presence of these ele- 
ments could affect the nature of the 
tenancy. If the lease was sufficient 
to convey :a freehold, the absence of 
a provision for improvements could 
not cut it down, and if the lease was 
such as to create a tenancy at will 
or from year to year only, no cove- 
nant for the erection of the buildings 
could turn it into an estate for life. 

38.^ See Fischer v. Johnson, 106 
Iowa, 181, 76 N. W. 658; Shean v. 
Withers, 51 Ky. (12 B. Mon.) 441; 
Hoffman v. Clark, 63 Mich. 175, 29 N. 
W. 695, 4 Am. St. Rep. 836; Doe d. 
Mann v. Keith, 4 U. C. Q. B. (O. S.) 
86. 

In Stamper v. Griffin, 20 Ga. 312, 
65 Am. Dec. 628, it is said that one 
who enters as a "squatter," disclaim- 
ing title, with the knowledge of the 
owner, holds as tenant at will. 
There, however, the question was 
merely whether such a person could 
claim adversely without the owner's 
knowledge. In Zilch v. Young, 184 
111. 333, 56 N. E. 338, it was decided 
that if one enters as licensee merely 
to pile lumber on land, and thereaf- 
ter builds a house on the land, and 
the owner, on discovering this. 



110 TENANCY AT WILL. | 13 

be. Such a view appears to be opposed to the almost numberless 
cases in which a claim to recover land has been held to be barred 
by the statute of limitations. If the plaintiff's failure, during 
the period named in the statute or a less period, to object to the 
defendant's wrongful possession, renders the latter the plain- 
tiff's tenant, the statute of limitations becomes inapplicable, 
since the existence of the relation of tenancy deprives the pos- 
session of the element of hostility necessary for the application 
of the stattite.389 The effect would be that the statute could 
apply only when the rightful owner had objected to the other's 
Avrongful possession, and he could always exclude the operation of 
the statute to his disadvantage by failing so to object. Another 
consideration in this respect is that the cases asserting this doc- 
trine of the creation of a tenancy by silent acquiescence make no 
suggestions as to the period which must elapse after the commence- 
ment of the wrongful holding before the tenancy can be regarded 
as arising, and from the nature of the case no definite period 
can be named. It has been said in this connection by a distin- 
guished judge that "mere silence on the part of the plaintiff 
did not constitute or make evidence of a tenancy at will. If it 
did, when did the silence have that effect. At the end of a day — 
a week — a month — a year — or when. When there is no duty to 
do anything, mere lapse of time and nothing done, is no evidence 
of anything. ' '^^^ In view of these considerations and of the well 

makes no objection, the former be- 64 Iowa, 84, 19 N. W. 852, a tenant 
comes tenant at will. A like view remaining in possession, with the 
was taken where an employe, after knowledge of the purchaser of the 
the end of his employment, remained premises under a judgment against 
some time In possession with the the lessor prior to the lease, was re- 
tacit acquiescence of the owner, garded as a tenant at will, though 
Jennings v. McCarthy, 40 N. Y. St. apparently there had been merely a 
Rep. 678, 16 N. Y. Supp. 161; Ker- tacit acquiescence in his possession 
rains v. People, 60 N. Y. 221, 19 Am. by such purchaser. In Dobbins v. 
St. Rep. 158. In Bedford v. McEl- Lusch, 53 Iowa, 304, 5 N. W. 205, an 
herron, 2 Serg. & R. (Pa.) 49, it execution defendant so retaining pos- 
was held that where a tenant for session was so regarded, 
years held over seventeen years, sso See ante, § 4. 
there was a presumption of consent sso Bramwell, B., in Ley v. Peter, 
by the owner creating a tenancy at 3 Hurl. & N. 101, Watson and Chan- 
will or from year to year. nell, B. B., were of the same opin- 
In Munson v. Plummer, 59 Iowa, ion. Martin B., apparently was not. 
120, 12 N. W. 806, and Kane v. Mink, 



§ 13 TERMINATION. HI 

recognized distinction between a tenant and a trespasser.^^i and 
in spite of the cases before referred to apparently to the contrary, 
a tenancy at will, like any other tenancy, can, it is submitted, 
be created only by a legal act constituting a lease or demise, 
and not by a mere forbearance to act. There ase dicta at least 
to this effect.392 

(6) Statutory provisions. Occasionally a statute provides 
that a person in possession of land with the consent of the owner 
shall be presumed to be a tenant at will unless the contrary is' 
shown.*93 This would seem to be the law apart from any stat- 
ute. On the other hand, in one state at least, it is expressly pro- 
vided that a tenancy at will shall arise only by express agree- 
ment to that effect,^'* and this seems to be the effect of the 
statutes before referred to,^®^ providing that a tenancy of un- 
defined duration shall extend for a certain period or until a 
certain time of the year. 

b. Termination of the tenancy — (1) By the landlord. A 
tenancy at will may, at common law, be terminated immediately 
by the landlord by giving a notice to that effect, that is by mak- 
ing a demand for possession.**^ Likewise, at common law, with- 

391 See ante, § 6. ancy from year to year." See post, 

392 In Doe d. Stanway v. Rock, 4 § 14 a. 

Man. & G. 30 It was said, by Tindal, 394 in Indiana (Burns' Ann. St. 

C. J., that to create a tenancy at will 1901, § 7089, it is provided that a 

"something must be done by the tenancy at will cannot arise but by 

lessor." In Blum v. Robertson, 24 express contract, and that all gen- 

Cal. 127, it is said that an express eral tenancies in which the prem- 

grant or contract is necessary. See. ises are occupied by the consent, 

also, Godfrey v. Walker, 42 Ga. 562; either express or constructive, of the 

Moore v. Smith, 56 N. J. Law, 446, 29 landlord, shall be deemed tenancies 

Atl. 159; Bodwell Granite Co. v. from year to year. "General tenan- 

Lane, 83 Me. 168, 21 Atl. 829; Mar- cies" within this provision are held 

tin V. Knapp, 57 Iowa, 336, 10 N. W. to be those the duration of which 

721; Ley v. Peter, 3 Hurl. & N. 101. is not fixed by agreement, and con- 

393 Iowa Code 1897, § 2991; Kan. sequently a mere permissive holding 
Gen. St. 1905, § 4051. N. H. Pub. St. does not there create a tenancy at 
1901, c. 246, § 1, provides that every will. See cases cited post, § 14 b (2) 
tenancy shall be deemed to be at (c). 

will, and the rent payable upon de- 395 See ante, § 12 c (3) (0). 

mand, unless a different contract is 896 Co. Litt. 55 b; 2 Blackst. Comm. 

shown. In this state the expression 14b; Locke v. Matthews, 13 C. B. 

"tenancy at will" apparently includes (N. S.) 753; Pollen v. Brewer, 7 C. 

what Is generally known as a "ten- B. (N. S.) 371; Blackley v. Coljs, 



112 TENANCY AT WILL. | 13 

out any express notice on the landlord 's part as to his desire or 
intention in this respect, acts of ownership by him on the prem- 
ises inconsistent with the continued existence of the tenancy, 
such as entering and cutting down trees or carrying away stone 
without the tenant's consent, are ordinarily regarded as indicat- 
ing the owner's will to terminate the tenancy and have that 
effect.39^ In a number of states, however, by force either of an 
express statute or of judicial decisions, the landlord cannot of 
his own volition terminate the tenancy without a notice of some 
length of time, that is the tenant is not bound to relinquish pos- 
session to the landlord immediately upon the latter 's expression 
of a desire to take possession. The existence and effect of these 
requirements will be considered in another place.^^s 

The express demand for possession which at common law 
entitles the landlord to immediate possession need not be made 
upon the land.^*^ There is a decision in this country that the 
demand must be brought home to the tenant, and that the act 
of the landlord in going on the land and declaring the tenancy 
at an end, if not done within the hearing of the tenant, is nuga- 
tory .*oo The common-law rule, however, was apparently other- 
wise,^"! and even mere acts on the part of the landlord, if done 
on the land, inconsistent with the continuance of the tenancy,' 
have been decided to be sufficient, although the tenant is unaware 
of the doing of such acts.*''^ 

6 Colo. 349; Den d. howell v. How- New York Real Prop. Law, § 202, 

ell, 29 N. C. (7 Ired. Law) 496, 47 fixing the duration of tenancies in 

Am. Dec. 335; Curl v. Lowell, 36 New York city when the duration 

Mass. (19 Pick.) 25; Whitney v. is not specified. Jennings v. McCar- 

Swett, 22 N. H. 10, 53 Am. Dec. 228. thy, 40 N. Y. St. Rep. 678, 16 N. Y. 

The institution of an action of Supp. 161. 

ejectment is a sufficient demand or sog Co. Lltt. 55 b. 

notice. Chamberlain v. Donahue, 4oi Cook v. Cook,^ 28 Ala. 660. 

45 Vt. 50; Locke v. Matthews, 13 C. 401 "The lessor may '^y actual en- 

B. (N. S.) 753. try into the ground determine his 

S97 Co. Litt. 55 b; Doe d. Bennett will in the absence of the lessee, but 

V. Turner, 7 Mees. & W. 226; Rising by words spoken (away) from the 

V. Stannard, 17 Mass. 282; Den d. ground the will Is not determined 

Howell V. Howell, 29 N. C. (7 Ired. until the lessee hath notice." Co. 

Law) 496, 47 Am. Dec. 335. Litt. 55 b. And to the same effect 

308 See post, § 196 b. see Doe d. Davies v. Thomas, 6 Exch. 

A tenancy expressed to be at the 854. 

will of either party Is not within 402 Ball v. Cullimore, 2 Cromp. M. 



§ 13 TERMINATION. 113 

Although the landlord may at coinmon law terminate the 
tenancy by a mere demand for possession or by acts of a certain 
character as above set forth, he cannot, until he has in some way 
terminated the tenancy, bring ejectment against the tenant to 
recover the land,*"'* or summary proceedings under the stat- 
ute,*^* or trespass to try title.*^^ 

There seems at common law to be no restriction as to the 
time at which a tenancy at will may be terminated by the lessor, 
except to this extent, that if he terminates it between rent days 
he loses the rent.*"® 

(2) By the tenant. The tenant may terminate the tenancy 
by relinquishing possession.*"'^ A merd\notice by him, however, 
that the tenancy is to be regarded as at an end, without relin- 

& R. 120; Pinhorn v. Souster, S Exch. a previous one which failed on a 

763. technicality. 

In Doe d. Price v. Price, 9 Bing. *o* Wheeler v. Wood, 25 Me. 287. 

356, it was held sufficient to termin- 4ob Jones v. Jones, 2 Rich. Law (S. 

ate the tenancy that the owner notl- c) 542. 

fied the tenant that unless he paid 400 gee post, § 176 a, at note 373. 

what he owed measures would be im- in yin. Abr., Estates (B c), pub- 

mediately taken to recover posses- ughed about 1750, there is a long 

sion, the implied ofCer to allow the statement to the general effect that 

retention of possession not a^ipearing tji^ lessor cannot. In the case of 

to have been accepted. So when the arable pasture land, terminate the 

owner entered and required the ten- tenancy in the spring, and that the 

ant's employes to stop all work on tenant cannot terminate it in the 

the premises. Moore v. Boyd, 24 Me. spring if he has faUed to sow, or in 

242. the fall. This may have been the 

4i>8 Goodtitle v. Herbert, 4 Term law as enforced by the courts before 

R. 680; Right v. Beard, 13 East, 210; the time at which, it is conceived, the 

McKinnon v. McDonald, 2 N. S. Law doctrine of periodic tenancies in- 

R. 7; Allen v. Mansfield, 82 Mo. 688; f erred from the reservation or pay- 

Prisbie v. Price, 27 CaL 253; Zilch ment of a periodic rent became es- 

V. Young, 184 111. 333, 56 N. E. 318; tablished (post, § 14 b (2) ), but the 

Jackson v. Aldrieh, 13 Johns. (N. T.) authorities cited do not support the 

106; Jones v. Temple 87 Va. 210, 12 statement, and the present writer 

S. E. 404, 24 Am. St. Rep. 649. has discovered no other mention of 

In Chamberlain v, Donahue, 45 Vt. such restrictions upon the termina- 

50, It is stated that the brining of tion of tenancies at will, 

an action of ejectment by the owner iot Say v. Stoddard, 27 Ohio St. 

of the land terminated the tenancy. 478 ; Chandler v. Thurston, 27 Mass. 

But it will be noticed that the action (10 Pick.) 205; Shaw v. Hill, 79 

referred to was not that in which the Mich. 86, 44 N. W. 422; Dolan V. 

opinion In question was rendered, but Scott, 25 Wash. 214, 66 Pac. 190; 

4 
L. and Ten. 8. 



114 TENANCY AT WILL. j I3 

quishment fi possession, will have no effect.^''^ Furthermore, 
the tenancy may be terminated at the landlord's option by any 
acts on the part of the tenant of a character inconsistent with 
his holding as such. So it is terminated if by words or acts he 
disclaims holding under his landlord, as when he asserts a fee 
simple title to the land.*''^ And, likewise, the commission 
of voluntary waste by the tenant is regarded as being so in- 
consistent with his obligations as tenant at will as to termin- 
ate the tenancy at the landlord's option,*!" and within this prin- 
ciple has been held to fall the act of the tenant in authorizing 
the use of the premises as a smallpox hospital to the diminution 
of the value of the property.*^! 

If the tenant at will is required by statute to give notice 
in order to terminate the tenancy,*!^ he cannot terminate it by 
a mere relinquishment of possession. But even though notice is re- 
quired by statute the requirement may be waived by the land- 
lord's acceptance of possession or otherwise.*!^ 

The entrance by the parties to an existing tenancy at will into 
an agreement that the tenant shall give up. possession at a future 

Warner v. Page, 4 Vt. 291, 24 Am. ment against him under such cir- 

Dec. 604. cumstances that he led the oflacer to 

408 Co. LItt. 55 b, Hargrave's note, believe that the land belonged to him 

It was held to be no defense to an in fee. Campbell v. Proctor, 6 Me. 

action for rent against a tenant at (6 Greenl.) 12, and where he ac- 

win that he was prevented from re- cepted and recorded a conveyance of 

linquishing possession by the issue the premises in fee. Bennock v. 

of an injunction in a proceeding to Whipple, 12 Me. (3 Fairf.) 346, 28 

which tthe plaintiff was not a party. Am. Dec. 186. 

Bartlett v. Robinson, 52 Neb. 715, 72 "» Co. Litt. 56 a; Esty v. Baker, 

N. W. 1053. 50 Me. 325, 79 Am. Dec. 616; Phil- 

ioo Simpson v. Applegate, 75 Cal. lips v. Covert, 7 Johns (N. Y.) 1; 

342, 17 Pac. 237; McCarthy v. Brown, Pettengill v. Evans, 5 N. H. 54; 

113 Cal. 15, 45 Pac. 14, 35 L. R. A Perry v. Carr, 44 N. H. 118; Daniels 

267; Appleton v. Ames, 150 Mass. v. Pond, 38 Mass. (21 Pick.) 367, 32 

34, 22 N. E. 69, 5 L. R. A. 206; Isaacs Am. Dec. 269; Chalmers v. Smith, 

V. Gearhart, 51 Ky. (12 B. Mon.) 152 Mass. 561, 26 N. E. 95, 11 L. R. 

231; Currier v. Earl, 13 Me. 216; A. 769. 

Russell V. Fabyan, 34 N. H. 218; *" Hersey v. Chapin, 162 Mass. 

Den d. Love v. Edmonston, 23 N. C. 176, 38 N. E. 442. 

(1 Ired. Law) 152; Ramsey v. Hend- "2 See post, § 196 b. 

erson, 91 Mo. 560, 4 S. W. 408. So us See Farson v. Goodale, 90 Mass. 

where the tenant allowed the levy of (8 Allen) 202, and post, § 197. 
execution on the land under a judg- 



§ 13 TERMINATION. 115 

day named will, it has been held, terminate the tenancy at will, the 
tenancy being thereby changed into one for a fixed term, a tenancy 
for years,*!* though this could not be the case unless the agree- 
ment were executed with the formalities necessary in the case 
of a lease for that length of time. 

(3) By death of party. The relation between the owner and 
the tenant at will is regarded as personal in its nature, and con- 
sequently the tenancy is terpiinated by the death of either the 
landlord or the tenant.*!*"^ But this is not the case when one 
of two joint lessors or joint lessees dies.*is The dissolution of a 
corporation party to the relation will likewise, it has been de- 
cided, terminate the tenancy .*i® 

(4) By transfer^^(a) By the landlord. A conveyance by 
the landlord will terminate the tenancy as soon as the making 
of the conveyance is known to the tenant,*!'' and a conveyance 
of merely part of the premises will have the same effect.*!^ Nor 
need the conveyance be of the whole interest of the landlord, 
but a written lease by him, retaining a reversion, is equally effec- 
tive for this purpose,*!** ^s is the conveyance of an undivided 

4i*Engels V. Mitchell, 30 Minn. us Disdale v. lies, 2 Lev. 88; 

122, 14 N. W. 510-. Hinchman v. lies, 1 Vent. 247; Hil- 

414a Co. Lltt. 57 b, 62 t); 2 Blackst. dreth v. Conant, 51 Mass. (IQ Mete.) 

Comm. 146; Turner v. Barnes, 2 298; Wardell v. Etter, 143 Mass. 19, 

Best. & S. 435; Reed v. Reed, 48 Me. S N. E. 420; Cofran v. Shepard, 148 

388; Rising v. Stannard, 17 Mass. Mass. 582, 20 N. E. 181; Mentzer v. 

282; Say v. Stoddard, 27 Ohio St. Hudson Sav. Bank, 197 Mass. 328, 83 

478; Manchester v. Doddridge, 3 Ind. N. E. 1102; Eclipse Oil Co. v. South 

360. And this even in the case of a Penn Oil Co., 47 W. Va. 84, 34 S. E. 

lease to one "and his heirs," to hold 923; Seavey v. Cloudman, 90 Me. 

at the will of the lessor. Lift. § 82; 536, 38 Atl. 540. 

Go. L*itt. 62 b. A lease by a husband of premises 

415 Co. Litt. 55 b; Henstead's Case, held by him and his wife by the en- 
5 Coke, 10 a. tirety was held to terminate a ten- 

416 Lea v. Hernandez, 10 Tex. 137. ancy at will, since the control of 
*i7 Doe d. Davis v. ' Thomas, 6 such an estate during their joint 

Bxch. 854; Esty r. Baker, 50 Me. lives is, at the common law, vested 

325, 79 Am. Dec. 616; Curtis v. Gal- in the husband. Pray v. Stebbins, 

vln, 83 Mas^. (1 Allen) 215; Lash 141 Mass. 219, 4 N. B. 824, 55 Am. 

V. Ames, 171 Mass. 487, 50 N. E. 996; Rep. 462. 

Davis V. Brocklebank, 9 N. H. 73; That the person who made the 

Den d. Howell v. Howell, 29 N. C. lease at will makes a subsequent 

(7 Ired Law) 496. written lease will not terminate the 

418 Emmes v. Feeley, 132 Mass. 346. tenancy at will if the lessor himself 



116 TENANCY AT WILL,. | 13 

interest.*2o 

A mortgage by tlie landlord has also been held to terminate 
the tenancy,*2i but this could, it seems, be the case only where 
the mortgage transfers the legal title to the mortgagee. 

A transfer of the landlord's interest by operation of law, as 
by sale under a judgment,^ ^^ qj. the vesting of the property in 
a trustee in bankruptey,^^* has the same effect as a voluntary 
conveyance in terminating the tenancy. The taking of a mere 
easement, however, in the exercise of the right of eminent 
domain, not followed by actual eviction, is without any such 
result.*24 

While it is recognized that a conveyance or lease by the land- 
lord does not terminate the tenancy till the tenant receives notice 
thereof in one way or the other, *2s the notice to the tenant need 
not be in any particular form.^^e There are sugggestions in the 
decisions of one state to the effect that such a notice does not 
give the landlord a right to proceed against the tenant as wrong- 
fully holding over until the lapse of a day or two after it is 
given, but no clear rule has been stated in this regard.*^' 

had no estate whicli lie could lease, *22 Marsters v. Cling, 163 Mass. 

as where he was a tenant at will of 477, 40 N. E. 763. 

the rightful owner; and the sub- 423 Doe d. Bavies v. Thomas, 6 

tenant at will is not ^stopped to Exch. 854. 

show the character of his landlord's *24 Bmmes v. Feeley, 132 Mass. 

holding for this purpose. Hilbourn 346. 

v. Fogg, 99 Mass. 11. 423 Doe d. Davies v. Thomas, G 

*2o MeFarland v. Chase, 73 Mass. Exeh. 854; Pratt v. Farrar, 92 Mass. 

(7 Gray) 462, where all the members (10 Allen) 519; Furlong v. Leary, 

of a firm owning the property con- 62 Mass. (8 Cush.) 409. 

veyed to another firm consisting of It was different in the case of a 

themselves and one other, thus in conveyance by livery of seisin, this 

effect transferring an undivided in- being a notorious act done on land, 

terest to such other. of which the tenant was presumed to 

So the tenancy is terminated by a have notice. Ball v. Cullimore, 2 

conveyance of his interest by one co- Cromp. M. & R. 120. 

tenant of the reversion (Cofran v. 42e Mizner v. Munroe, 76 Mass. (10 

Shepard, 148 Mass. 582, 20 N. B. Gray) 290; Pratt v. Farrar, 92 Mass. 

181) as it is in the case of a partition (10 Allen) 519. , 

by exchange of conveyances by pari 427 See Pratt v. Farrar, 92 Mass. 

owners. Rising v. Stannard, 17 (10 Allen) 519; Arnold v. Nash, 126 

Mass. 282. Mass. 397; Hooton v. Holt, 13? Mass. 

421 Jarman v. Hale [1899] 1 Q. B. 54, 29 N. E. 221. 
994. 



§ 13 ' TERMINATION. 117 

The tenant cannot complain, after his interest has come to an 
end by reason of a transfer by the landlord, that the latter in- 
duced the transferee to eject him.*^^ 

(b) By the tenant. The tenant has no interest which he can 
transfer, and an attempted assignment or sublease by him is re- 
garded as inconsistent with the continued existence of the ten- 
ancy and terminates it.*"* Such termination does not, however, 
become effective until the owner acqiaires knowledge of the 
transfer.*30 But though the tenant cannot transfer his interest 
as against the owner, a transfer by him is effective as against 
himself, making the transferee a tenant at will to that extent,*^^ 
and the owner may recognize the transferee as tenant and so 
create a new tenancy at wiU.*32 

(5) By special limitation. We have previously spoken of the 
cases in which a tenancy for life or years may by force of an 
express limitation come to an end upon the happening of some 
contingency before the expiration of the life or term named, 
such a limitation being known as a "special" or "conditional" 
limitation.*33 Under the common-law doctrine that a tenancy 
at wiU is terminable immediately at the will of the landlord, a 
special limitation in connection with such a tenancy would have 

428 Groustra v. Bourges, 141 Mass. lessor on the covenant for CLuiet en- 
7, 4 N. E. 623. joyment in a lease made by him to 

429 Co. Litt. 57 a, and Hargrave'a another. 

note; Birch v. Wright, 1 Term R. 432Landon v. Townsend, 129 N. Y. 
378; Pinhom v. Souster, 8 Exch. 166, 29 N. E. 71. Where the owner 
763; Reckhow v. Schanck, 43 N. Y. brought suit for use and occupation 
448; McLeran v. Benton, 73 Cal. against the tenant's transferee, it 
329, 2 Am. St. Rep. 81; Dean v. Com- -"as held that it was a question for 
stock, 32 III. 173; Cooper v. Adams, the jury whether this made the lat- 
60 Mass. (6 Cush.) 87; Cunningham ^^^ ^^ tenant Cunningham y. Hol- 
er i,t oo t% i T^ .,1 ton, 55 Me. 33; Austin v. Thomson, 

V. Holton, 55 Me. 33; Doak v. Donel- „ .^ , ,j . i. 

• 45 N. H. 117. So it wa^ held to be a 

son's Lessee. 10 Tenn. {2 Yerg.) 249, ^^^^.^.^^ ^^^ ^^^ .^^^^^ ^^ ^^.^^^^^ 

24 Am. Dec. 485; Austin v. Thomson, ^^ether the owner recognized the 

45 N. H. 117. original tenant's assignee as tenant 

430 Carpenter v. Colins, Yel. 73; ijy sending to the original tenant 
Pinhorn v. Souster, 8 Exch. 763. a notice of increase of rent addressed 

431 Holbrook v. Yoimg, 108 Mass. by name to him "or the present occu- 
85; Meier v. Thiemann, 15 Mo. App. pant." King v. Lawson, 98 Mass. 
307. In the former of these cases 309. 

the tenant at will was held liable as 433 See ante, § 12 d. 



118 TENANCY AT WILL. § 13 

been almost useless, and the possibility of its presence in that 
connection appears never to have been suggested. Such a pro- 
vision, however, may become of importance when the statute 
requires a notice to terminate the tenancy, and it has been held 
to be effective for this purpose, although the statutory notice 
is not given.434 The fact that the rent under a tenancy at will 
is payable in advance does not create a special limitation termin- 
ating the tenancy on nonpayment.*^'' 

(6) Tenant's rights on termination. Not only has the ten- 
ant at will, upon the termination of the tenancy otherwise than 
by his own act, the right to emblements,*^® but he also has the 
right for a reasonable time to enter to remove his goods from 
the premises.*^'' If he fails to remove his goods within a rea- 
sonable time, the landlord may, it has been held, remove the 
goods and store them subject to the tenant's order, in which case 
they are at the latter 's risk.*^* 

c. Nature of the tenant's interest. Though a tenant at will 
has no interest which he can transfer to another, and though in 
some jurisdictions he holds entirely at the will of the landlord, 
he nevertheless has, it seems, what may be called an "estate," 
since he has not only the possession, but as against third persons 
the right of possession, which he may assert by an action of tres- 
pass, or, it seems, an action of ejectment.*^® That he has an 
estate is assumed by the standard writers.**", 441 

*34 Ashley v. Warner, 77 Mass. (11 43c See post, § 251. 

Gray) 43 (tenancy at will "so long *37 Litt. § 69; Cornish v. Stubbs, 

as the tenant keeps a good school"). L. R. 5 C. P. 334; Moore v. Boyd, 24 

In McGee v. Gibson, 40 Ky. (1 B. Me. 242; Ellis v. Paige, 18 Mass. (1 

Mon.) 105, an employe was held to Pick.) 43; Clark v. Wheelock, 99 

be a tenant at will of the house Mass. 14; Leavitt v. Leavitt, 47 N. 

occupied by him; the tenancy to ex- H. 329; Payton v. Sherburne, 15 R. 

pire with his employment. In Good- I. 213, 2 Atl. 300; Amsden v. Blais- 

enow V. Allen, 68 Me. 308, the qu«s- dell, 60 Vt. 386, 15 Atl. 332. 

tion is not decided whether the stat- ^^s Lasn v. Ames, 171 Mass. 487, 

ute requiring notice precludes the 50 N. E. 996. See post, § 255 b. 

termination of the tenancy by such *39 See post, chapter XXXIII. 

a clause. no. m gee e. g., 2 Blackst. Comm. 

«5 Sprague V. Quinn, 108 Mass. 553, 145; 1 Cruise's Dig. tit. 9, c. 1, § 2; 

following Elliott v. Stone, 66 Mass. Williams, Real Prop. (18th Ed.) 434. 

(12 Cush.) 174, and distinguishing So Coke, in speaking of tenancy at 

Elliott V. Stone, 67 Mass. (1 Grayl will, refers to "the estate of the 

571. lessee." Co. Litt. 55 a. 



§ 14 PERIODIC TENANCIES. Ug 

§ 14. Periodic tenancies. 

a. General considerations. The expression "periodic ten- 
ancy" is a convenient designation for all tenancies which are in 
their nature such as will endure for a certain period, and will 
continue for subsequent successive periods of the same length, 
unless terminated by due notice, at the end either of the first 
period or of one of the succeeding periods. The typical tenancy 
of this character is that from "year to year," but the essential 
qualities of a tenancy from "quarter to quarter," "from month 
to month," or "from week to week," are the same. 

Such a tenancy is occasionally spoken of as a " yearly, " " quart- 
erly, " "monthly," or "weekly" tenancy, or as a tenancy "by 
the" year, quarter, month or week. These expressions can, how- 
ever, not be regarded as technically accurate, and are to be 
avoided as tending to confuse such a tenancy with a tenancy for 
years, which will continue for the period named, whether one or 
more years, a quarter, a month, or a week. In New York, for 
instance, the expression "monthly tenancy" has been applied 
by the courts sometimes to a periodic tenancy measured by the 
month, and sometimes to a tenancy for the term of a month.*** 
The use of this ambiguous expression "monthly tenancy" has 
contributed to confuse the law in that state with reference to 
periodic tenancies measured by the month.*** 

In some states a tenancy apparently such as is ordinarily re- 
ferred to as a tenancy from year to year is referred to as a 
"tenancy at will from year to year," or less frequently as a 

442 See, for instance, Douglass v. month" was held to constitute a hir- 
Seiferd, 18 Misc. 188, 41 N. Y. ing "for the month" in Fash v. Kav- 
Supp. 289; Olson v. Schevlovitz, 91 anagh, 24 How. Pr. (N. Y.) 347. 
App. Div. 405, 86 N. Y. Supp. 834; Judge McAdam, who has written with 
Steffens v. Earl, 40 N. J. Law, 128, especial reference to the law of 
29 Am. Rep. 214, where the express- that state, uses the expressions 
ion "yearly" or "monthly" is used "yearly" and "monthly'' to cov- 
with reference to a periodic tenancy, er tenancies for a year and for a 
while the expression "monthly" ten- month, as well as tenancies from 
ancy is given the meaning of a ten- year to year and from month to 
ancy for a month in Vernon v. Gil- month. See McAdam, Landl. & Ten. 
bert, 30 Misc. 112, 61 N. Y. Supp. 896 (3d Ed.) §§ 38-40. 
(semble); Bent v. Renken, 86 N. Y. *« See post, § 14 c (1), at notes 
Supp. 110. And so a hiring "by the 506, 507. 



120 PERIODIC TENANCIES. | 14 

"tenancy at will,"**^" in recognition, it would seem, of the fact 
that either party may terminate it at his will at the end of any 
year by giving the previous legal notice. The expression "ten- 
ancy at will from month to month" is also to be found.^^^b 
Occasionally, a periodic tenancy has been regarded as within a 
provision of a statute referring in terms to a "tenancy at 
will."*** Occasionally, while applying the term tenancy at will 
to both classes of tenancies, that is, what we have previously dis- 
cussed under the name of tenancy at will and also what we are 
now discussing under the name of tenancy from year to year, 
courts or text writers have undertaken to distinguish between 
the two by calling the first "strict" tenancy at will and the 
second "general" tenancy at wUl.**® While the first appellation 
is not inappropriate, it emphasizing the fact that this tenancy 
is "strictly" in accordance with the common-law conception of 
a tenancy at will, the term "general" as applied to a periodic 
tenancy seems in no way suggestive of the peculiar characteris- 
tics of such a tenancy. It was probably adopted from the ex- 
pressions of the courts that such a tenancy arose in the case of 
a "general letting," that is when there was no specification of 
the duration of the tenancy.**^ 

As stated elsewhere, it has been recognized from an early per- 
iod that a tenant at will has the right, after the termination of 

443a Currier v. Perley, 24 N. H. will, and by sufferance, an estate 

219; Perry v. Carr, 44 N. H. 118; from year to year or from month 

Leavitt v. Leavitt, 47 N. H. 329; to month is to tie regarded as in- 

Holmes v. Wood, 88 Mich. 435, 50 N. eluded in "estate at will." Hunter v. 

W. 323; Huntington v. Parkhurst, 87 Frost, 47 Minn. 1, 49 N. W. 327; Hil- 

Mich. 38, 49 N. W. 597, 24 Am. St sendegen v. Scheiclj, 55 Mich. 468, 21 

Rep. 146; Blanehard v. Bowers, 67 N. "W. 894. And a tenancy from year 

Vt 403, 31 Atl. 848. See Prouty v. to year was held to be terminable by 

Prouty, 5 How. Pr. (N. Y.) 81, 3 Code the notice prescribed for a tenancy 

R. lei; Park v. Castle, 19. How. Pr. at will, no notice for a tenancy from 

(N. Y.) 29. year to year being named in the 

443b Prendergast v. Searle, 74 statute. Rosenblatt v. Perkins, 18 

Minn. 333, 77 N. W. 231; Blair v. Or. 156, 22 Pac. 598, 6 L. R. A. 257. 
Mason, 64 N. H. 487, 13 Atl. 871. See 445 See e. g., Taylor, Landl. & Ten. 

Haines v. Beach, 90 Mich. 563, 51 § 60; Huntington v. Parkhurst, 87 

N. W. 644. Mich. 38, 49 N. W. 597, 24 Am. St. 

444 So it has been held that where Rep. 146. 
the statute divides estates into those 446 gee post, § 14 b (2). 
of inheritance, for life, for years, at 



§ 14 GENERAL CONSIDERATION. 121 

the tenancy, to crops planted by Mm, and that he may enter 
freely for the purpose of their cultivation and removal. This 
privilege, in the case of land covered with crops, in efEect gava 
the use of the land to the tenant until the maturity of the crop, 
although the tenancy had been terminated by the landlord at 
a time considerably previous, and during this period the tenant, 
though thus enjoying the use of the land, was not, it seems, liable 
to rent. On the other hand, the liability of the tenant to be 
deprived of all rights of occupancy other than the growing of 
his crops, and presumably the difficulties attending the culti- 
vation of crops on land the nominal possession of which was in 
another, rendered a tenancy terminable at the landlord's will 
an unsatisfactory class of holding. It was, perhaps, considera- 
tions such as these which first induced the recognition by the 
courts of tenancies from year to year, terminabLe at the will of 
the landlord or tenant at the end of any year. The earlier 
authorities bearing upon the subject of such tenancies are scanty 
and somewhat obseure.**'^ 

The other classes of periodic tenancies are, no doubt, of later 
origia than the tenancies from year to year, and are merely a 
development therefrom as a result of the application of the prin- 

4« Bracton (f 168) speaks of "a pressed the view that the lessor 

tenant at will from day to day or alone could terminate it, hut that 

from year to year," without stating "the will of the lessor" should have 

the character of such a tenancy. a reasonable construction. In Anony- 

As late as the reign of Henry the mous, Keilw. 163, pi. 5 (3 Hen. 8, A. 
eighth, the meaning of the expres- D. 1512), It was said that under 
sion "from year to year, as the par- such a lease, if the lessor permitted 
ties please," was the subject of ques- the lessee to enter upon the second 
tion. Fitzherbert and Brooke, J J., year without notifying him "of his 
apparently regarding it as creating will," the tenant could occupy for 
merely a lease at will, and Brudenell, that year. In Bro. Abr., Lease, pi. 
J., and Pollard, C. J., regarding it 53, it is said: "A man leases for a 
as creating a tenancy for each year year and so from year to year at the 
if the land was occupied for any will of the parties, or so long as both 
part of such year. Potkin's Case, parties please; then when one year 
Y. B. 14 Hen. 8, 10 (A. D. 1523). In is passed and another year corn- 
Anonymous, Keilw. 65, pi. 6 (20 Hen. menced, the lessor shall not oust the 
7, A. D. 1505), the question was lessee until the second year be fin- 
whether a lessee under a lease "from Ished, and the lessee shall have no- 
year to year at the will of the les- tice to quit for half a year before the 
sor" could terminate the tenancy at end of the year; and the same notice 
his own will, and Frowike, C. J., ex- upon a lease at will, it seems." 



122 PERIODIC TENANCIES. | I4 

ciples governing the latter tenancy to closely analagous circum- 
stances. 

A tenancy from year to year does not come to an end and recom- 
mence with each year, but the tenant has an interest for one year 
certain with a growing interest during every year thereafter 
springing out of the original demise.*^* In other words, after 
the beginning of any subsequent year, or indeed after the ex- 
piration of that part of the current year in which notice to 
terminate must be given, the subsequent year or years are to be 
considered a part of the original term, though in the beginning 
it was uncertain whether the tenancy would so long continue.^*^ 
The same principle applies to any other periodic tenancy, such as 
one from month to month or week to week.^s" This principle 
has consequences of. considerable importance. For instance, if 
the tenancy were to be regarded as commencing anew at the be- 
ginning of each subsequent period, the landlord would, under 
a rule hereafter referred to,*^! be liable for injuries caused by 

i*^ Cattley v. Arnold, 1 Jolins & H. ated at the end of the first year. 
651; Gaudy V. Jubber, 9 Best & S. 15; (See Doe d. Clarke v. Smaridge, 7 
Pugley V. Aiken, 11 N. Y. (1 Kern.) Q. B. 957; Fox v. Nathans, 32 Conn. 
494. 351; Walley v. Radclift, 11 Wend. 
■449 Preston, Conveyancing, 76, 77. [N. Y.] 22). The oversight in this 
"The true nature of such a ten- respect is noticed in Wright v. Tra- 
ancy is that it is a lease for two cey, 8 Ir. R. C. L. 478, where the na- 
(slc) years certain, and that every ture of the tenancy in question is 
year after it is a springing interest elaborately discussed, 
arising upon the first contract and" 450 Bowen v. Anderson [1894] 1 Q. 
parcel of it, so that if the lessee B. 164, overruling Sandford v. 
occupies for a number of years, these Clarke, 21 Q. B. Div. 398; Ward v. 
years by computation from the time Hinkleman, 37 Wash. 375, 79 Pac. 
past, make an entire lease for so 956. The decisions to the contrary 
many years, and that after the com- in Borman v. Sandgren, 37 111. App. 
mencement of each new year it be- 160; Griffith v. Lewis, 17 Mo. App. 
comes an entire lease certain for 605, are based on Gandy v. Jubber, 
the years past, and also for the year 5 Best & S. 78, and make no refer- 
so entered on, and that it is not a ence to the opinion on appeal in that 
reletting at the commencement of case (9 Best & S. 15), in which a 
the third (sic) and subsequent contrary view is taken. The above 
years." Gandy v. Jubber, 9 Best & Illinois case is followed in Donk 
S. 15. This statement is, however, Bros. Coal Co. v. Leavitt, 109 111. 
erroneous in the use of the word App. 385. See post, § 106. 
"two," since a tenancy from year to 4.->i See post, § 101. 
year can unquestionably be termin- 



§ 14 WHEN TENANCY ARISES. 123 

defects in the premises existing at the beginning of such new 
period.^^2 Furthermore, the landlord has in any year a right 
to distrain for the rent of a pi'evious year, since the tenant still 
holds under the same demise.*^* And either the landlord or the 
tenant may declare on the demise as having been made for the 
number of years which have elapsed since it was made.*^* On, 
the same principle it was decided that where one who had made 
a demise from year to year died, leaving the premises to a person 
for life with remainder over, the leasehold interest, during such 
life estate, was to be regarded as created by the testator and not 
by the liie tenant, and consequently did not terminate on his 
death.455 

b. When a periodic tenancy arises — (1) Under express lim- 
itation. As above remarked, the typical form of periodic ten- 
ancy is a tenancy from year to year, and the principles which 
govern in the creation of such a tenancy control also in the 
creation of the other classes of periodic tenancies. In view of 
this consideration and for the sake of convenience, we will here 
discuss the mode of creation of a tenancy from year to year, such 
discussion being applicable in substance as well to the other 
classes of periodic tenancies, and we will subsequently state 
briefly the law as to the creation of quarterly, monthly, and 
weekly tenancies. 

A tenancy from year to year, like any other tenancy, may be 
created by a lease or demise expressly limiting an estate of that 
duration.*56 

A lease may be made for a fixed term, to be followed by a 

*52Boweii v. Anderson [1894] 1 Q. In Morris v. Healy Lumber Co., 

B. 164; Gandy v. Jubber, 9 Best & 46 Wash. 686, 91 Pac. 186, a lease for 

S. 15. a period of one year, and so on 

*53 Legg V. Strudwick, 2 Salk. 414. from year to year until terminated 

*54 Birch V. Wright, 1 Term R. 380; by notice from the lessee at the end 

Cattley v. Arnold, 1 Johns. & H. 651. of the first or any subsequent year.. 

*55 Gattley v. Arnold, 1 Johns. & appears not to have been regarded 

H. 651. as creating a tenancy from year to 

*56 Jones V. Nixon, 1 Hurl. & C. 48; year. What character of tenancy it 

Fox V. Nathans, 32 Conn. 351; Dix did create is not slated. The lessee. 

V. Atkins, 130 Mass. 171; Brady v. having an interest to endure so long 

Flint, 23 Neb. 785; Flnkelstein v. as he desired, he had, it would seem. 

Herson, 55 N. J. Law, 217, 26 Atl. at least an estate for life, provided 

688. the instrument was properly execut- 



124 PERIODIC TENANCIES. | 14 

periodic tenancy. For instance, there may be a demise for one 
year certain, and so on from year to year, and this will create a 
tenancy for two years at the least.*^'^ And a tenancy "for six 
months and so on for six months to six months, until" determiaed 
by either party, has been held to be one for twelve months at 
least.*^* A lease for several years, with a provision that if 
notice be not given at the end of that time it should be consid- 
ered a lease from year to year until terminated by notice, was 
regarded as valid.*^^ But a mere provision that after the term 
of one year created by the lease had expired the lessee was to 
"have the preference each succeeding year thereafter'^' did not 
create a tenancy from year to year.*^'' 

Occasionally a demise has been construed as creating not a 
tenancy for a year, continuing from year to year, the ordinary 
form of tenancy from year to year, but rather a tenancy for two 
years at least, to be followed by a tenancy from year to year 
if not terminated by notice at. the end of such two years. This 
construction has been placed upon a lease of land to hold "not 
for one year only, but from year to year,"*^i and likewise on 
one for one year and so on from year to year.*^^ jjj^ regard 
to a lease in the latter form, however, some of the older English 
authorities take a different view, regarding it as creating an 
ordinary tenancy from year to year,*^^ aji,j -ti^ig latter view has 

ed for the creation of a freehold And see Jones v. Nixon, 1 Hurl. & C. 

estate. 48; B. Roth Tool Co. v. Champ 

457 Doe d. Chadborn v. Green, 9 Spring Co., 93 Mo. App. 530, 67 S. 
Adol & E. 658; Doe d. Monk v. Gee- W. 967. 

kie, 5 Q. B. 841. So there may a lease io" Crawford v. Morris, 5 Grat. 

for one year "with the privilege of (Va.) 90. 

continuing the same from year to lei Denn d. Jacklin v. Cartright, 4 

year." Hetfield v. Lawton, 108 App. East, 29. 

Div. 113, 95 N. Y. Supp. 451. 462 Boe d. Chadbourn v. Green, 9 

That a lease for a term contains a Adol. & E. 658; Reg. v. Inhabitants 

clause providing that if the lessee of Chawton, 1 Q. B. 247. See Cannon 

continues in possession thereafter Brewery Co. v. Nash, ,77 Law T. (N. 

he shall hold as tenant from year S.) 648. 

to year does not give him the option 463 Some of the old cases fawr the 

to hold as such during the term, idea that a lease in such form con- 

MacGregor v. Rawle, 57 Pa. 184. fers a term for three years. Potkln's 

458 Reg. V. Inhabitants of Chawton, Case, Y. B. 14 Hen. 8^ 10, pi. 6; 
1 Q. B. 247. Bishop of Bath's Case, 6 Coke, 35 b 

459 Brown V. Trumper, 26 Beav. 11. (dictum); Anonymous, Winch, 32; 



I 14 WHEN TENANCY ARISES. 125 

been adopted in at least one state in this country .^^^ A lease 
from year to year "so long as both parties agree" does not create 
a tenancy necessarily lasting more than a year,*®^ nor is an in- 
tention to that effect shown by references in the lease to "the 
last year," or "the last half year," these merely showihg a rec- 
ognition by the parties of the possibility of the continuance of 
tf " tenancy beyond a year.*^® 

There is a decision in this country, rendered without discus- 
sion and without any characterization of the tenancy, that a 
demise for one year with a provision that the lessees "is to 
have thfe said farm from year to year as long as the said farm 
is to be let" created a tenancy terminable by the lessor at the 
end of the first year, provided he no longer desired to lease, 
though he could not then terminate it for the purpose of leasing 
to another .4^'^ 

(2) By inference on general letting — (a) From pajrment of 
periodic rent. A tenancy from year to year, though it may be 
created by express language, more frequently arises upon a 
letting with no limitation as to the duration of the tenancy, that 
is, a mere grant of permission to take possession followed by 
the payment and acceptance of a yearly rent. What would other- 
wise be a tenancy at will thus takes effect as a tenancy from 

Ck)strike v. Mason, 2 Keb. 543; Pan- Eliz. 775; Lutterel v. Weston, Cro. 

ton V. Isham, 3 Lev. 359. On the Jac. 308; Belasyse v. Bnrbridge, 1 

other hand. Chief Justice Holt, in Lutw. 74 (folio 213), 1 Ld. Raym. 

a number of decisions, expressed the I'^^J StanfiU v. Hickes, 1 Ld. Raym. 

opinion that such a lease was a 280, 2 Salk. 413; Denn d. Jacklin v. 

demise for one year only if term- Cartright, 4 East, 31 (dictum). The 

Inated at that time by either party, cases are reviewed and discussed at 

that is, that it was an ordinary dc length in 1 Piatt, Leases, 658. And 

mise from year to year. Stonfil v. see the references in Bac. Abr., 

Hicks, 2 Salk. 413, Holt, 414; Leigh- Leases (L) 3. 

ton V. Theed, ILd. Raym. 707; Dodv. ^"Lesley v. Randolph, 4 Rawle 

Monger, 6 Mod. 215, Holt, 416. And (P^-) 123, where Kennedy, J., re- 

the same opinion is apparently ex- -^i^^s the authorities, 

pressed by Lord Kenyon in Good- «^ D«e d. Clarke v. Smaridge, 7 

right V. Richardson, 3 Term R. 462. Q- B. 957; Fox v. Nathans, Z2 Conn. 

The authorities, other tlj^n thosf, 348; Bac. Abr., Leases (L) 3. 

above cited, upholding the view that *«» Boe d. Plumer v. iMainby, 10 

such a lease creates an estate for Q. B. 472. 

two years certain and then from 467 Walley v. Radcliff, 11 Wend, 

year to year, are Agard v. King, Cro. (N. Y.) 22. 



126 PERIODIO TENANCIES. j I4 

year to year if the tenant pays a yearly rent, the theory being 
that such a payment by him and its acceptance by the owner 
shows an intention to create a tenancy of the latter character.*®* 
The payment of rent must, in order to give rise to an inference 
of an intention to create a tenancy from year to year, be "with 
reference to a yearly holding," as it is expressed, by which is 
meant that it must be paid as rent for a year or as a part of 
rent computed by the year, and if paid not with reference to a 
yearly holding, or to a holding for some other period, the ten- 
ancy is at will.*®^ 

As above stated, the theory of the creation of a periodic ten- 
ancy by the payment and receipt of rent is that it shows an 
intention to create such a tenancy. But it is evidence merely 
of intention, and though stated to be conclusive in that regard 

468 Doe d. Martin v. Watts, 7 Term arising. Simmons v. Pope, 84 N. Y. 

R. 85; Chapman v. Towner, 6 Mees. & Supp. 973. 

"W. 100; Arden v. Sullivan, 14 Q. B. 4is9 Bray thwaite v. Hitchcock, 10 

832; Douglass v. Seiferd, 18 Misc. Mees. & W. 494 ; Richardson v. Lang- 

188, 41 N. Y. Supp. 289; Judd v. ridge; 4 Taunt. 128, Rich v. Bolton, 

Fairs, 53 Mich. 518, 19 N. W. 266; 46 Vt. 84, 14 Am. Rep. 615; Sheldon 

Tiernan v. Johnson, 7 Mo. 43; Les- v. Davey, 42' Vt. 637; Johnson v. 

ley V. Randolph, 4 Rawle (Pa.) 123; Johnson, 13 R. I. 467; Lyons v. Phll^ 

Hey V. McGrath, 81* Pa. 310; Woelp- adelphia & R. R. Co., 2(J9 Pa. SSOrsi 

per V. City of- Philadelphia, 38 Pa. Atl. 924. So it was held that there" 

203; Silsby V. Allen, 43 Vt. 172; Rich was no tenancy from year to year 

V. Bolton, 46 Vt. 84, 14 Am. Rep. 615; when the tenant merely paid a cer- 

Arbenz v. Exley, Watkins & Co., 52 tain amount on the square foot ot 

W. Va. 476, 44 S. E. 149, 61 L. R. A. slate extracted, without reference 

957; Beloit Second Nat. Bank v. O. E. to a year or any other period. Shel- 

Merrill Co., 69 Wis. 501, 34 N. W. don v. Davey, 42 Vt. 637. 
514. , In Amsden v. Floyd, 60 Vt. 386, 

So a tenancy from year to year 15 Atl. 332, it is said that "it is 
may he created by an occupancy un- clear that in order to convert a ten- 
der an agreement for a lease, ac- ancy at will into one from year to 
companied by payment of rent, year an occupation for the second 
Hamerton v. Stead, 3 Barn. & C. 478, year must at least be entered upon." 
483; Cox v. Bent, 5 Bing. 185; Hunt- No authorities are cited for this 
ington V. Parkhurst, 87 Mich. 38, 49 statement, and though It accords 
N. W. 597. with occasional suggestions made 

When, after a surrender by the with reference to a holding under 

tenant, the landlord collected rent a lease invalid because not in writ- 

from the subtenant through an- ing (post, § 25 g (1) note 417), it 

other person, a new tenancy of a finds no support in the authorities 

periodic character was regarded as generally. The tenancy in this par- 



I 14 WHEN TENANCY ARISES. 127 

in the absence of evidence to the contrary,*^** the- tenancy remains 
at will if it is shown that the parties did not intend thereby 
to create a tenancy from year to year or other periodic hold- 
ing.^^i Evidence of a gross disparity between the rent actually 
paid and the annual value of the property has been regarded 
as sufficient to rebut the presumption of a tenancy from year to 
year.*''2 

In order that the existence of a tenancy from year to year or 
other periodic tenancy be inferred from the payment and re- 
ceipt of a yearly or other periodic rent, the rent need not be 
paid in money, but may be paid in services or supplies,*''^ and 
there need not even be any actual payment -of rent, it being suffi- 
cient that the tenant is by his consent charged with a certain 
amount as being a portion of a year's rent.*'^* 

Attention has previously been called to decisions that a formal 
demise not naming the duration of the tenancy creates a tenancy 
at will,*'''^ and, conceding this to be the case, a holding under 

ticular case would seem to have been conversations with former agents, 

from month to month, a monthly were admissible in her favor to 

rent having been paid. show that the tenancy was originally 

470 Bishop V. Howard, 2 Barn. & by the month, and so continued. 
C. 100. It is a question for the jury. Schloss v. Huber, 21 Misc. 28, 46 
Pinlay v. Bristol & E. R. Co., 7 N. Y. Supp. 921. And to show that 
Exch. 409 ; Jones v. Shears, 4 Adol. the tenant did not hold merely from 
& E. 832; Johnson v. Foreman, 40 111. month to month, evidence was ad- 
App. 456; Lyons v. Philadelphia & R: mitted in his behalf to the effect 
R. Co., 209 Par55(T, 58 Atl. 924. that the landlord required him to 

471 Doe d. Dixie v. Davies, 7 Exch. niake repairs and to pay taxes, which 
89; Doe d. Bastow v. Cox, 11 Q. B. it was not the duty of such a tenant 
122; Doe d. Lord v. Crago, 6 C. B. 90; to do. Cohen v. Green, 21 Misc. 334, 
Prisley v. Presbyterian Hospital, 70 47 N. Y. Supp. 136. See, however. 
Neb. 353, 97 N. W. 475, 113 Am. St. Post, notes 506, 507, as to the New 
Rep. 788; Waring v, Louisville & York decisions. 

N. R. Co., 19 Fed. 863; Johnson v. ^^aRoe d. Brune v. Prideaux, 10 
Foreman, 40 111. App. 456; Say- v. East, 158; Denn d. Brune v. Rawlins, 
Stoddard, 27 Ohio St. 478. 10 East, 261; Smith v. Widlake, 3 

In. New York it was held that C. P. Div. 10.' 
where a tenant remained in pos- "^ Doe d. Tucker v. Morse, 1 Barn, 
session eleven years, paying rent & Adol. 365; Thomas v. Wright, 9 
monthly, receipts for rent given to Serg. & R. (Pa.) 87. 
her by previous owners of the prem- ^^4 Cox v. Bent, 5 Bing. 185. 
IseSj which receipts stated that she 475 See ante, § 13 a (4). 
was tenant for a month only, and 



128 PBJRIODIC TENANCIES. S 54 

such a demise, if accompanied by the payment of annual (or 
other periodic) rent, would become a tenancy from year to year 
(or from other period to period).*'^* But, as before remarked, 
it is most doubtful whether a tenancy at will is properly created 
by such a demise for an indefinite time, if it is sufficient in point 
of execution to convey a life or greater estate,, and the same may 
be said as regards the inference of a tenancy from year to year 
from the payment of rent in such a case.^^^ 

The most frequent case of a tenancy from year to year is that 
of a holding under a Ifease which fails to comply with the statute 
of frauds, the tenancy at will, which would otherwise exist in 
such case, becoming a tenancy from year to year by reason of the 
payment of an annual rent.'*'^ It may also occur when one 
enters and pays an annual rent under a lease which is invalid on 
other grounds.*^^ 

In Maine and Massachusetts, by the construction of the stat- 
utes there in force providing that a lease not in writing shall 
have the effect of a lease at will only, a tenancy from year to 
year or other periodic tenancy does not arise from the payment 
and acceptance of a yearly or other periodic rent, but the ten- 
ancy remains one at will.^^" But even in those jurisdictions 

4T6 Ridgeley v. Slillwell, 25 Mo. Grath, 81* Pa. 310, it was clearly de- 

570; Lesley v. Randolph, i Rawle elded, -witliout any discussion how- 

(Pa.) 123; Garrett v. Clark, 5 Or. ever, that a sealed lease not nam- 

464; Holmes v. Wood, 88 Mich. 435, ing anfr particular period, reserving 

50 N. W. 323. an annual rent, created a tenancy 

iT! See Kusel v. Watson, 11 Ch. from year to year, and not for life. 

Div. 129; Boe d. Warner v. Browne, *76 See post, § 25 g (1). 

8 Bast, 165. In the latter case, the 479 Lockwood v. Lockwood, 22 

lease being sufficient in point of ex- Conn. 425 ; Tiernan v. Johnson, 7 Mo. 

ecution to convey a freehold estate, 43; Parley v. McKeegan, 48 Neb. 237, 

and not specifying any estate, but 67 N. W. 161; Kernochan v. Wilkens, 

stating that the tenancy should not 3 App. Div. 596, 38 N. Y. Supp. 236. 

be terminated so long as the lessee *8o Ellis v. Paige, 18 Mass. (1 

paid rent, it was apparently regard- Pick.) 43; Davis v. Thompson, 13 

ed as creating a life estate. See, Me. 209, 214; Wheeler v. Wood, 25 

also, Holmes v. Day, 8 Ir. R. C. L. Me. 287; Withers v. Larrabee, 48 Me. 

235, where the court divided equal- 570; Thomas v. Sanfora S. S. Co., 

ly on the question whether a life 71 Me. 548; Sprague v. Quinn, 108 

estate or an estate from year to Mass. 553; Lyon v. Cunningham, 136 

year was created. In Hey v. Mc- Mass. 532, 540. See post, | 25 g (1). 



S 14 WHEN TENANCY ARISES. 129 

a periodic tenancy may be created by express provision to that 
effeet.48i 

(b) Prom resenration of periodic rent. The reservation of 
a periodic rent may be as effective as the actual payment of 
such a rent to create a periodic tenancy,**^ though ordinarily 
the reservation is accompanied by one or more payments. The 
presumption of a periodic tenancy, in case of the reservation 
of a periodic rent, may be rebutted by oth«r language in the 
instrument of demise shov^ing a contrary intention,*^^ and evuab. 
effect has been given to a provision that the tenancy should con- 
tinue so long as both parties agree thereto.^** Obviously, the res- 
ervation of such a rent has no effect if the dnration of the ten- 
ancy is validly specified, as when there is a written lease for 
years. 

Occasionally a state statute provides expressly that the res- 
ervation of a periodic rent shall create a periodic tenancy.*^' 

(c) Not from general letting alone. There are statements 
to be found to the effect that a general Tiolding, that is, a holding 
for no specified time, creates a tenancy from year to year wrth- 

481 Dix V. Atkins, 130 Mass. 171. was in effect a lease at a yearly 

482 1 Piatt, Leases, 653; Roe d. rent for this purpose. 

Bree v. Lees, 2 W. Bl. 1173; Richard- 48s Doe d. King v. Grafton, 18 Q. 
son V, Langridse, 4 Taunt. 128; Doe B. 496. 

d. Hull V. Wood, 14 Mees. & W. 682; 4S4SaTv. Stoddard, 27 Ohio St. 
Doe d. Patton v. Axley, 50 N. 0. (5 478. 

Jones Law) 440; WiUiams y. Apoth- 4ss i Kan. Gen. St. 1905, § 4053, 
«caries Hall Co., 80 Conn. 503, 69 provides that when rent is reserved, 
Atl. 12; Hey v. McGrath, 81* Pa. payahle at intervals ot three 
310; Second Nat. Bank v. O. B. Mer- moaths or less, the tenant shall be 
rill Co., 69 Wis. 501, 34 N. W. 514; deemed to hold from one period to 
RIdgely v. Stillwell, 25 Mo. 570; another equal to the interval be- 
Jackson v. Bradt, 2 Caines (N. Y.) tween the days of payment, unless 
169; Lesley v. Randolph, 4 Rawle there is an express notice to the 
(Pa.) 123; Rich v. Bolton, 46 Vt. 84, contrary. 

14 Am. Rep. 615. But in Benfey v. Ball Ann. Codes & St. Wash. 1897. 
Congdon, 40 Mich. 283, it is said § 4569, provides that when prem- 
that a lease not naming a t«rm, at ises are rented for an indefinite time, 
a stipulated annual rent, makes a with monthly or otiier periodic rent 
lease for no more than one year, reserved, the tenancy shall be con- 
In Davis V. McKinnon, 31 U. C. strued to be from month to month 
Q. B. 564, it was held that a lea/se or from period to period. But sec- 
made in consideration of the lessee's tion 4568 purports to abolish ten- 
agreement to pay the yearly taxes ancy from year to year except when 

L. and Ten. 9. 



130 



PERIODIC TENANCIES. 



§14 



out reference to whether there is the reservation of an annual 
rent or whether there are circumstances to show a tenancy from 
year to year, in other words, that tenancy from year to year has 
entirely superseded tenancy at will.*** This may be the law 
in some few jurisdictions, but ordinarily, as we have seen, ten- 
ancies at will are still fully recognized.**^ 

The view above referred to, that a tenancy from year to year 
arises upon a general letting without more, seems to have first 
obtained currency in England in the latter half of the eighteentK 
century, when the general doctrine of tenancies from year to 
year arising otherwise than by express limitation apparently first 
originated.*** Blackstone, however, writing in 1765, says merely 
that "courts of law have of late years learned as much as pos- 
sible against construing demises, where no certain term is men- 
tioned, to be tenancies at will; but have rather held them to be 
tenancies from year to year so long as both parties please, 



created by express written contract. 
It does not appear what class of ten- 
ancy would be created by a lease for 
an indefinite time, reserving a yearly 
rent. 

*86 Parker v. Constable, 3 Wils. 
25; Timmins v. Rowlinson, 3 Bur- 
row, 1609; Jackson v. Bryan, 1 
Johns. (N. Y.) 322; Phillips v. Cov- 
ert, 7 Johns. (N. Y.) 1; Sullivan v. 
Enders, 33 Ky. (3 Dana) 66; Den 
d. McEowen v. Drake, 14 N. J. Law 
(2 J. S. Green) 523; Clark v. Smith, 
25 Pa. 137; Larkin v. Avery, 23 
Conn. 304 (semble). 

48T See ante, § 13. And see Den 
d. Stedman v. Mcintosh, 27 N. C. 
(5 Ired. Law) 571; "Williams v. De- 
riar, 31 Mo. 13; Johnson v. Johnson, 
13 R. I. 467; Rich v. Bolton, 46 Vt 
84, 16 Am. Rep. 615. 

In Richardson v. Langridge, 4 
Taunt. 128, it is said: Surely the 
distinction has been a thousand 
times taken. A mere general let- 
ting is a letting at will. If the 
lessor accepts yearly rent, * * * 



that is evidence of a taking for a 
year. 

In Leavitt v. Leavitt, 47 N. H. 
329, it was held that an agreement 
for a holding without the payment 
of a periodical rent created, in the 
particular case, a tenancy "at will 
from year to year," and not a "strict" 
tenancy at will. The court, how- 
ever, fully recognized that "strict" 
tenancies at will still exist. It does 
not clearly appear why the tenancy 
in this case was regarded as from 
year to year. In this state, under a 
statute providing that every occu- 
pancy creates a tenancy at will un- 
less the contrary is shown (ante, § 
13 a (6) ), there is a presumption 
against the existence of a tenancy 
from year to year in any particular 
case. Currier v. Perley, 24 N. H. 
2193; Hazeltine v. Colburn, 61 N. H. 
466, 471. 

*8s Parker v. Constable, 3 Wils. 
25 (1769); Timmins v. Rowlinson, 3 
Burrow, 1603 (1765); Claytion v. 
Blakey, 8 Term R. 3 (1798). See 2 
Preston, Abstracts of Title, 25. 



§ 14 WHEN TKNANCY ARISES. 13] 

especially where an annual rent is reserved."**^ Some thirty 
years later it was said by a judge of high reputation that "so 
long ago as the time of the year books it was held that a general 
occupation was an occupation from year to year, and that the 
tenant could not be turned out of possession without reasonable 
notice to quit,"*^<* and a statement similar in effect has been 
made by other distinguished judges.*'^ As appears from what 
we have said above, this does not state the law as it exists at 
the present day, a general occupation in itself without more not 
giving rise to a tenancy from year, to year, and the year book 
ease cited in support of the statement seems insufficient to 
justify the view that such was the law at the time referred to.*^^ 
If any such doctrine was recognized in the time of the year 
books, it is most singular that it is not mentioned by Coke, and 
that there is no reference thereto till towards the end of the 
eighteenth century, that is, during an interval of over two 
hundred years. It was fully recognized, as before stated, that 
a "general letting," if not accompanied by formalities sufficient 
to create a freehold estate, created a tenancy at will,*®^ and 
there is during that long period no suggestion that a tenancy 

489 2 Blackst. Comm. 147. To the other passage at the page referred to 

same effect see Co. Litt. 55 a, Har- (13 Hen. 8, 15 b) on which the 

graves note (anno. 1785). statement of Lord Kenyon can be 

*9o Lord Kenyon in Doe d. Martin based. The printed year book Shows 

V. Watts, 7 Term R. 85. The year the statement to have been made 

book case referred to is stated in the with reference to a lease "for years." 

note to the report to be 13 Hen. 8, This is probably an error of the re- 

15 b. porter Or of the printer, but there 

491 Buller, J., in Right v. Darby, is nothing to suggest that the state- 

1 Term R. 163, and Wllles,"T\rin ment was made with reference to ;i 

Jones V. Mills, 10 C. B. (N. S.) 788, "general" letting. 'It is said by 

referring to the same case. See Lar- Shelly, J., in the same case, that the 

kin V. Avery, 23 Conn. 304. lease there in question "is not prop- 

*92 In 2 Smith's Leading Cases erly a lease at will, but is a lease 

(11th Ed.) p. 127, notes to Clayton for a year at will, for after a year, 

V. Blakey (8 Term R. 3), it is said to wit, at the end of a year, he can 

that the passage In the year book oust him if he wishes." Tt may per- 

case referred to is the following haps have been a lease for a year 

statement by WiUoughby (Wilby) : and then from year to year. 

"If the lessor does not give to him *93 Litt. § 70; Blamford v. Blam- 

notice before the half year, he will ford, 3 Bulst. 98; Com. Dig., Estates 

justify for another year, and so (H. 1); Bac. Abr., Estates (H 1). 
from year to year." There is no 



132 PERIODIC TENANCIEJS. § 14 

at will so created differed from the other tenancies at will in 
being terminable only by notice. 

There are perhaps two early decisions in this country to the 
effect that a tenancy at will may by mere lapse of time be con- 
verted into a tenancy from year to year,*^^ but these can hardly 
be regarded as authoritative at the present day, and they are 
not in harmony with the decisions generally. 

In Indiana the statute expressly provides that all "general 
tenancies," where occupancy is by consent, shall be deemed 
tenancies from year to year, and requires an express provision 
to create a tenancy at will.*®^ A Ehode Island statute,*®® pro- 
\ading that "the time agreed upon in a definite letting shall be 
the time of the termination thereof for all purposes; and if 
there be no time of termination agreed upon, it shall be deemed 
a letting from year to year," was held to apply only when there 
was a lease which was definite except as regards duration, and not 
to a mere permissive occupation without any agreement as to 
terms, a tenancy at will arising in such case.*®'' 

c. Qusoteriy, monthly, and weekly tenancies — (1) Apart 
from statute. A tenancy analogous to that from year to year, 
and differing therefrom merely in the length of the recurring 
periods with reference to which it is measured, and consequently 
in the character of the notice necessary to terminate it may, 

«4In Hancliett v. Whitney, 2 MoOuat, 40 Ind. 521; Swan v. ClaJk, 

Aiken (Vt.) 240, it vas decided that 80 Ind. 57; Rothschild v. Williamison, 

one who entered into possession as 83 Ind. 387; Coomler v. Hefner, 86 

tenant at will and remained in pos- Ind. 108. Under the statute, in the ah- 

session for five years became tenant sence of any showing of an agree- 

from year to year, and could not ha ment as to the payment of rent or 

ousted without notice to quit. And a duration of the term, rent is pre- 

like view is taken by two judges out sumably payable only at the end of 

of the five in Jackson v. Bryan, 1 each year. Indianapolis, D. & W. E. 

Johns. (N. Y.) 322, where there had Co. v. First Nat. Bank, 134 Ind. 

been a possession for twenty years. 127, 33 N. E. 679. The tenancy is 

Den d. Mackey y. Mackey, 2 N. J from year to year, although the 

Law (1 Penning.) 307, is sometimes rent is reserved at a fixed rate per 

cited to the same effect, but it is not month. Elliott v. Stone City Bank, 

in point. 4 Ind. App. 155, 30 N. E. 537; Roths- 

«5 Burns' Ann. St. 1901, § 7089. child v. Williamson, 83 Ind. 387. 

By "general tenancies" in the stat- ^^^ Gen. Laws 1896, c. 269, § 6. 

ute is meant those tenancies which *»' Johnson v. Johnson, 13 R. I. 

are for an indefinite time. Bright v. 467. 



§ 14 QUARTERLY A>rD MONTHLY TENANCIES. 133 

as before stated, be created either expressly or as a result of 
conditions similar to those giving rise to tenancy from year to 
year. That is, a tenancy from quarter to quarter, from month 
to month, or from week to week, or indeed from any period 
to like period, is created prima fade by the reservation or pay- 
ment of rent with reference to such a period, when no period 
for tlje duration of the tenancy is named.^^^ 

The mere fact that rent is paid under a tenancy of undefined 
duration at intervals of a quarter of a year, of a month, or of 
a week, does not cause a tenancy measured by corresponding 
periods to arise, if such payments are merely on account of a 
yearly rent, that is, it is the character of the rent rather than 
the time of payment that determines the character of the periodic 
holding, and such payments of aliquot parts of an annual rent 
at equal intervals during the year will raise an inference of a 
tenancy from year to year.*^* But where there is no evidence 
as to the terms of the letting, it would seem that the monthly 
payment of rent should show a letting at a monthly rent, thereby 

498 Wilkinson v. Hall, 3 Bing. N. rule prevailing in most jurisdictions, 

C 508; Anderson v. Prindle, 23 nor perhaps with the cases of Finch 

Wend. (N. Y.) 616; Sebastian v. Hill, v. Moore, 50 Minn. 16, 52 N. W. 384, 

51 111. App. 272; HoUis v. Burns, and Johnson v. Albertson, 51 Minn. 

100 Pa. 206, 45 Am. Rep. 379; Doug- 333, 53 N. W. 642. 

lass v. Seiferd, 18 Misc. 188, 41 N. Y. too Ridgeley v. Stillwell, 25 Mo. 

Supp. 289; Finch v. Moore, 50 Minn. 570; Douglass v. Seiferd, 18 Misc. 

116, 52 N. W. 384; Johnson v. Al- 188, 41 N. Y. Supp. 289; Fatten v. 

hertson, 51 Minn. 333, 53 N. W. 642; Axley. 50 N. C. (5 Jones Law) 440; 

Steftens v. Earl, 40 N. J. Law, 12S, Lesley v. Randolph, 4 Rawle (Pa.) 

29 Am. Rep. 214; Hoover v. Pacific 123; Hey v. McGrath, 81 *Pa. 310; 

Oil Co., 41 Mo. App. 317; Hungerford McKinney v. Peck, 28 111. 174 (sem- 

V. Wagoner, 5 App. Div. 590, 36 N. Y. ble) ; King v. Eversfield [1897] 2 Q. 

Supp. 369; Branton v. O'Briant, 93 B. 475. 

N. C. 99; Bent v. Benken, 86 N. Y. in Schloss v. Huber, 21 Misc. 28, 

Supp. 110; Klingenstein v. Goldwas- 46 N. Y. Supp. 921, it was decided 

ser, 27 Misc. 536, 58 N. Y. Supp. 342. that the fact that receipts for rent. 

In Minnesota it is said that the paid monthly, stated that the letting 

payment of one month's rent by a was by the month, is sufiBcient evi- 

tenant "with nothing further said dence to sustain a finding to the 

nor done," does not create a ten- effect that such a holding had contin- 

ancy from month to month, but a ued, in the absence of contrary evi- 

tenancy for a month. Alworth v. dence, though later receipts omitted 

Gordon, 81 Minn. 445, 84 N. W. 454. this statement. 
This is not in accord with the 



134 PERIODIC TENANCIES. § 14 

creating a tenancy from month to month rather than one from 
year to year-^"" 

A tenancy from month to month does not become one from 
year to year because the tenant remains in possession for one 
or more years,^''! and the fact that for the convenience of a 
tenant from month to month the landlord accepts rent quarterly 
in advance does not in itself change the tenancy into one from 
quarter to quarter terminable only at the end of a quarter .^"2 

There are occasional decisions to the effect that if one enters 
during a calendar period, a month or a quarter for instance, and 
pays rent proportioned to the interval between the day of entry 
and the end of the period, and thereafter pays rent for each 
period, his tenancy will, for the purpose of ascertaining the time 
for termination by notice, be regarded as commencing at the 
commencement of such period-^^^ 

The law in New York state in reference to tenancies from 
month to month is in considerable confusion. The view which 
prevails in other jurisdictions, that a tenancy from month to 
month is prima facie created by a letting at a monthly rent for 
no definite period,^"* and that it can be terminated only by a 
month's notice,^'*'' is supported by a number of cases.*"® There 

500 See Anderson v. Prindle, 23 Jones Law) 430; Hollis v. Burns, 
Wend. (N. Y.) 616; Decker v. Harts- 100 Pa. 206, 45 Am. Rep. 379. 
home, 65 N. J. Law, 87, 46 Atl. 755; 502 London & San Francisco Bank 
StefCens v. Earle, 40 N. J. Law, 128, v. Curtis, 27 Wash. 656, 68 Pac. 329. 
137, 29 Am. Rep. 214; Finch v. bos Doe d. Holcomb v. Johnson, 6 
Moore, 50 Minn. 116, 52 N. W. 384; Esp. 10; Doe d. Savage v. Stapleton, 
Johnson v. Albertson, 51 Minn. 333, 3 Car. & P. 275; Ver Steeg v. Becker 
53 N. W. 642; Edmundson v. Pre- Moore Paint Co., 106 Mo. App. 257, 
ville, 12 Colo. App. 73, 54 Pac. 394. 80 S. W. 346. 

But in Ridgeley v. Stillwell, 25 Mo. 504 See ante, at note 498. 
570, a contrary view is apparently 505 See post, § 196 e. 
adopted, and Waters v. Williamson, soe Anderson v. Prindle, 23 Wend. 
59 N. J. Law, 337, 36 Atl. 665, seems (N. Y.) 619; People v. Darling, 47 
not to be in accord with the above N. Y. 666; Gefger v. Braun, 6 Daly 
New Jersey decisions in this respect. (N. Y.) 506; Wilson v. Taylor, 8 
In Morris v. Niles, 12 Aob. Pr. (N. Daly (N. Y.) 256; Hoffman v. Van 
Y.) 103, and in Patton v. Axley, 50 Allen, 3 Misc. 99, 22 N. Y. Supp. 369; 
N. C. (5 Jones Law) 440, it is de- Klingenstein v. Goldwasser, 27 Misc. 
cided that payment of a quarter's 536, 58 N. Y. Supp. 342; Hungerford 
rent is evidence of a tenancy from v. Wagoner, 5 App. Div. 590, 39 N. 
year to year. Y, Supp. 369; Rybicki v. Kalish, 58 

501 Jones V. Willis, 53 N. C. (8 Misc. 219, 108 N. Y. Supp. 1001. 



§14 



QUARTERLY AND MONTHLY TENANCIES. 



135 



are other cases, however, which appear irreconcilable with 
these.«oT 

(2) Under statutes. In some states there are statutory pro- 
visions to the effect that under certain circumstances named a 
tenancy from month to month shall be regarded as arising,^'* 
while in at least two states there are provisions changing the 
common-law rule by which such a tenancy may arise as a result 



507 In People v. Goelet, 14 Abb. Pr. 
(N. S.) 130, 64 Barb. (N. Y.) 476, it 
was decided that a renting of prem- 
ises "by the month, and from month 
to month," created a tenancy that, 
"to be continued, must be renewed 
monthly," and did not require a 
month's notice to. terminate it. The 
court speaks of this, nevertheless, as 
a tenancy "from month to month." 
In most jurisdictions such a letting 
would be construed as a tenancy 
from month to month, which would 
continue till terminated by notice, 
presumably of a month. In Gibbons 
v. Dayton, 4 Hun (N. Y.) 453, the 
court says of a letting for one month 
only, to expire on the first day of the 
following month, that "it is very 
clear that the tenancy was from 
month to month," and that "neither 
party was bound to give any notice to 
terminate the tenancy at the expira- 
tion of any month." That no notice 
was necessary to terminate such a 
tenancy at the end of the first month 
is evident, and the tenancy created 
by holding over this first month 
would possibly be terminable at the 
end of any month without notice 
(see post, § 210 b, note 96), but to 
call such a tenancy for a term of one 
month a tenancy "from month to 
month" Is a clear misnomer. As a 
matter of fact, in this case, there 
seems to have been a new demise at 
the beginning of each month by the 
form of the receipt for rent in ad- 
vance given and accepted. 



In Ludington v. Garlock, 29 N. Y. 
St. Rep. 607, 9 N. Y. Supp. 24, it was 
thought that, in view of the fact that 
the monthly rent was paid in ad- 
vance, sa that the landlord was there- 
by protected, and that the tenant 
said that he could not move till he 
got another house, an agreement 
might be implied that the tenant 
might move without giving any prev- 
ious notice, and that at most a reas- 
onable notice could be required, and 
that what was such a notice was a 
question of fact. This case, so far 
as it calls for a "reasonable" notice, 
is approved in Thompson v. Chick, 
92 Hun, 510, 72 N. Y. St. Rep. 212, 
37 N. Y. Supp. 59. It has also been 
decided in that stato that where the 
tenant paid one year's rent in ad- 
vance, and at a subsequent time paid 
six month's rent in advance, though 
the rent was fixed at la certain 
amount per month, the holding was 
not a "monthly," but a "yearly," one. 
Douglass V. Seiferd, 18 Misc. 188, 
41 N. Y. Supp. 289. See, also, for 
New York decisions, ante not© 442,' 
and post, notes 516, 517. The notice 
necessary to terminate a tenancy 
from month to month is now, it 
seems, fixed by statute, in New 
York. See post, § 196 c. 

Bo»Mo. Rev. St. 1899, § 4110, pro- 
vides that all contracts for leasing 
stores, shops, houses, tenements, or 
other buildings In cities and towns, 
not in writing, shall be taken to be 
tenancies from month to month. 



1S6 PERIODIC TENANCIES. §. 14 

af the reservatioQ or payment of a montMy rent.^"^ In Maine 
and Massachusetts, it would seem, a tenancy from quarter to 

TWs statute was held to apply to the Real Estate Co. v. Roger Williams 
lease of a park of nine acres on wMch Silver Co., 25 R. I. 483, 56 Atl. 686, a 
were buildings used for saloons, res- corporation tenant for a year, holding 
taurantB, booths and dance halls over at a certain monthly rent, sold 
("Withnell v. Petzrold, 104 Mo. 409', 16 its personal property to another, who 
S. W. 205), and also to a lease of took possession of the premises and 
vacant ground for the erection of a paid the same rent monthly on de- 
real estate ofla.ce. Edmonston v. mand of the landlord, and it was 
Webb, 119 Mo. App. 679, 94 S. W. 314. held that, not being shown to be an 
It does not apply in the case of a assignee of the former tenant's lease, 
lease of land in a city for agricultural he held as a tenant from month to 
purposes, though, it coniains a dwel- month under this statute. The opin- 
ling house, stable and out houses, ion ignores the fact that the original 
Kroeger v. Bohrer, 116 Mo. App. lease for a year had expired long be- 
208, 91 S. W. 159. Whether the fore any change of possession occur- 
lessee had taken possession so as red. It appears to have been a simple 
to be within the operation of the case of one in permissive possession 
statute was held to be for the jury, paying a monthly rent, thereby oe- 
where his servants had made altera- coming a tenant from month to 
tions and had cleaxed the premises, month, and it does not seem that the 
and his name had been placed on the fact that he originally obtained pos- 
building, but he bad not moved in. session from a former tenant could 
Pacific Exp. Co. v. Tyler Oiflce Fix- have affected the character of bis 
ture Co., 72 Mo. App. 151. One who tenancy. In J. B. Barnaby Co. v. 
took possession under a deed of trust Johnston, 28 R. I. 105, 65 Atl. 613, it 
from the lessee, and orally promised is decided that a si atement by the 
the lessor to pay the rent so long as lessor,, on making that lease, that 
he remained in possession, was held the lessee could stay until the lessor 
to be within the statute. Koken wanted the premises, is not a "ref- 
Iron Works v. Kinealy, 86 Mo. App. erence to time," such as to prevent 
199. And likewise where it was verb- the application of the statute, 
ally agreed between the parties to a In Washington, also, the statute 
written lease that the lessee should (Ball. Ann. Codes & St. § 4569) pro- 
retain possession two weeks after the vides that a tenancy for an indefi- 
termination thereof. Smith v. nite time, with monthly rent reserv- 
Smith, 62 Mo. App. 596. ed, is a tenancy from month to 

In Rhode Island it is provided month. See Schreiner v. Stanton, 
(Gen. Laws 1896, c. 269, § 6) that in 26 Wash. 563, 67 Pac. 219. 
case of a letting at a certain rate per =oo in Connecticut the statute (Gen. 
month, without any other reference St. 1902, § 4043) provides that "parol 
as to time, the letting slhall be leases of lands, or tenements le- 
deemed from month to month. The serving a monthly rent, and in which 
rule would be the same apart from the time of their termination is not 
statute, it seems. In Washington agreed upon, shall be construed to 



§ 14 QUARTERLY AND MONTHLY TENANCIES. 137 

quarter, from month, to month, or from week to week, can exist 
only when" it is expressly so provided.^i*' 

The question whether a statute of the character before re- 
ferred to,5^i by which a certain day in the year is named as the 
day for the termination of any tenancy' the duration of which 
is not named in the lease, has any application to a tenancy under 
which a monthly rent is reserved or paid, so as to change tba 
common-law rule by which such a tenancy is one from month to 
month, is one on which the decisions are somewhat at variance. 
In Georgia it has been decided that the statute ^^^ declaring th.at, 
where no time is specified for the termination of the tenancy, 
it shall be regarded as extending to the end of the calendar year, 
applies to the case of a lease at so much per month so as to end 
it at the end of the year, even without notice such as would 
ordinarily be necessary to terminate a leasing from month to 
month. On the other hand, the statute of New Jersey,5i3 pro- 
viding that, where no term is agreed upon and the rent is 
payable monthly, it shall be unlawful to displace the tenant so 
long as he pays the rent before the first day of April, without 
giving three months' notice to quit, was held not to apply where 

be leases for one month only." At fact, merely until tlie execution of 
common law such, a lease would be the lease, which would supersede the 
from month to month. This statute, agreement. See post, | 65. The 
it was held, did not apply when one statement that there was an "agreed 
entered under an oral agreement for time of termination" is hardly recon- 
the making of a lease for several cilable with the statement that the 
years, since in such case there was tenancy was one at will, becoming a 
an "agreed time of termination," and tenancy from year to year. A ten 
the tenancy was one at will, which ancy having an agreed time of term- 
"by implication is held to be a ten- ination is a tenancy for years, 
ancy from year to year." Corbett v. In Indiana, by the construction 
Cochrane, 67 Conn. 570, 35 Atl. 509. placed on the statute of that state. 
In view of the reservation of a the tenancy is from year to year, 
monthly rent, such a tenancy would, though rent is reserved at a monthly 
in most jurisdictions, have been re- rate. Elliott v. Stone City Bank, 
garded as a tenancy from month to 4 Ind. App. 155, 30 N. E. 557; Roths- 
month, and not a tenancy from year child v. Williamson, 83 Ifld. 387. 
to year. Furthermore, it is most See ante, note 495. 
questionable whether a holding un- sio gee ante, at notes 480, 481. 
der a mere executory agreement to bh See ante, 12 e (3), (c). 
make a lease for a certain period 512 Code 1895, | 3182. 
should be regarded a a holding for bi3 2 N. J. Gen. St. p. 1924. 
an ascertained period, it being In 



138 PERIODIC TENANCIES. § 14 

there was a letting for the "term of one month and month 
to month thereafter" from a day named.^i* The New York 
statute,3^5 providing that an agreement for the occupation of 
real property in the city of New York, which shall not particu- 
larly specify the duration of the occupation, shall be deemed 
to continue until the first day of May, has in some cases, appar- 
ently, been regarded as inapplicable to a tenancy from month 
to month.518 But in others a different view'has been asserted.^i' 
In several of the Western states a statutory provision is 
found,^^^ authorizing the landlord, in the case of a tenancy from 
month to month, to change the terms of the tenancy by merely 
serving on the tenant, fifteen days before the end of any month, 
a notice to that effect, to take effect at the end of the month. 
Such a provision does not empower the landlord by notice to 
change the tenancy into one for a year.^i^ 

514 Flnkelstein v. Herson, 55 N. J. ute, though a monthly; rent was 
Law, 217, 26 Atl. 688. agreed on, since there was no dura- 
sis Real Prop. Law 1896, § 202. tion fixed for the letting. In Cohen 
516 It has been held that this stat- v. Green, 21 Misc. 334, 47 N. Y. Supp. 
ute does not apply where the tenant 136, it is said that the fact that the 
enters without any agreement as to rent is payable monthly does not 
terms and pays rent monthly, this conclusively show that the tenancy 
- "reating a tenancy from month to is from month to month, in view of 
month. Wilson v. Taylor, 8 Daly the statute, but that it is a question 
(N. Y.) 253. And the same view was of fact whether it is such a tenancy, 
taken where the lease was void, un- To apparently the same effect is Bem- 
der the statute of frauds, as regards stein v. Lightstone, 36 Misc. 193, 73 
the duration of the tenancy, but a N. Y. Supp. 151. Douglass v. Sei- 
monthly rent was reserved which the ferd, 18 Misc. 188, 41 N. Y. Supp. 
lessee paid. Gilfoyle v. Cahill, IS 289, seems to be to the effect that a 
Misc. 68, 41 N. Y. Supp. 29, and so "monthly" holding is -within the 
where the leasing was expressly "by statute and that an indefinite holding 
the month," Olson v. Schevlovitz, 91 at a yearly rent is not within the 
App. Div. 405, 86 N. Y. Supp. 834. In statute. This does not, however, 
Vernon v. Gilbert, 30- Misc. 112, 61 clearly appear. See, also, ante, notes 
N. Y. Supp. 896, it was held that a 506, 507. 

memorandum for a "monthly" lease sis Cal. Civ. Code, § 827; Idaho 

from a -certain date created a "ten- Civ. Code, § 2384 ; Mont. Civ. Code, 

ancy by the month," and therefore, § 1279; Nev. Comp. Laws 1900, § 

as being "for a definite term," it was 3827. See Dawson v. Cerf, 4 Cal. 

not within the statute. App. 272, 87 Pac. 559; Vatuone v. 

5" In Spies v. Voss, 30 N. Y. St. Cannobio, 4 Cal. App. 422, 88 Pac. 

Rep. 548, 9 N. Y. Supp. 532, the hold- 374. 
ing was regarded as within the stat- sis Hurd v. Whilsett, 4 Colo. 77, 



§ 14 TRANSFER OP INTEREST. 139 

d. Transfer of interest. A tenancy from year to year, 
though resembling in some degree a tenancy at will, in that ^^he 
continuance of the holding beyond the end of any year is de- 
pendent on the will of the parties, nevertheless resembles a 
tenancy for years rather than a tenancy at will, in that it is a 
tenancy for one year at least. Accordingly, the interest of either 
the landlord 519a ^j. q£ ^j^g tenant "^o may be assigned without 
affecting the existence of the tenancy, and on the death of the 
tenant his interest passes to his personal representative.^^! Not 
does the death of the landlord terminate the tenancy.^^^ 

Though a tenant from year to year has or^nally a certain 
term of one year only, the possibility of its indefinite extension 
has been h^ld to give him a reversion in case he makes a lease 
for several years, and one holding under such a sublease is, it 
seems, to be regarded as a tenant for years, subject only to the 
possible ending of his term by the termination of his lessor's 
tenancy from year to year.^^s, 624 ^j^^ go ^ tenant from year to 
year may make a lease from year to year, he having thereafter 
an estate from year to year in reversion.^^s 

e. Mode of termination. While the nature of a periodic 
tenancy is ordinarily such that it can be terminated only at the end 
of one of the periods,526 n jg possible, it seems, expressly to provide 

where the purpose of such a statute Alkln, 11 N. Y. (1 Kern.) 494; Kitch- 

is considered. en v. Pridgen, 48 N. C. (3 Jones 

619a Macdonough v. Starbird, 105 Law) 49, 64 Am. Dec. 593. But in 

Cal. 15, 38 Pac. 510; Swope v. Hop- Cody v. Quarterman, 12 Ga. 386; 

kins, 119 Ind. 125, 21 N. E. 462. In Decker v. Hartshorne, 65 N. J. Law, 

Hemphill v. Giles, 66 N. C. 512, it 87, 46 Atl. 775, it was held, without 

seems to be held that a tenant from any citation of authority, that the 

year to year, attorning to and holding death of a tenant from year to year 

under the assignee of the lessor, is terminated the tenancy at the end 

merely a tenant at will to the latter, of the current year. 

320 Pleasant v. Benson, 14 Bast, 022 Cattley v. Arnold, 1 Johns. & H. 

234 ; Braythwayte y.^ Hitchcock, 10 651 ; Maddon d. Baker v. White, 2 

Mees. &^T494; Cody v. Quarterman, Term R. 159; Botheroyd v. WooUey, 

12 Ga. 386 (semble); Jackson v. 5 Tyrw. 522. 

Hughes, 1 Blackf. (Ind.) 421; Austin 523, 524 Oxley v. James, 13 Mees. & 

V. Thomson, 45 N. H. 113. W. .209. 

521 Doe d. Shore v. Porter, 3 Term, 526 Curtis v. Wheeler, Moody & M. 

R. 13; Doe d. Hull v. Wood, 14 Mees. 493; Pike v. Eyre, 9 Barn. & C, 909. 

& W. 682; Mackay v. Mackreth, 4 5215 Lockwood v. Lockwood, 22 

Doug. 213; In re Ring's Estate, 132 Conn. 425; Gunn v. Sinclair, 52 Mo. 

Iowa, 216, 109 N. W. 710; Pugsley v. 327; Usher v. Moss, 50 Miss. 208; 



140 PERIODIC TENANCIES, | 14 

for its termiQatiGta at some other time^^^^ and it has even been 
decided that a tenancy from year to year may be made termin- 
able at the win of the landlord.ssa in one jiarisdiction the rule 
has been adopted that a tenancy from year to year is termin- 
able, not at the end of one of the periods by which it is 
measured, but only at the end of a calendar year.^^^ In an- 
other the statute provides that a tenancy from year to- year 
shall terminate at the end of each year without notiee-S**" 

The ordinary mode in which such a tenancy comes to an end 
is by reason of a notice given by one party to the other to the 
effect that he desires to terminate the tenancy. The essentials 
of such a notice will be elsewhere considered.^^^ 

The tenancy is terminated without notice by the expiration of 
the estate of the person who created the tenancy, so far as the 
person subsequently entitled is concerned, as where a life tenant 
after demising from year to year dies.^*^ It may also be term- 
inated by the making of another demise between the same parties 
to terminate at a fixed term, that is, a lease for years,^* this 
effecting a surrender of the periodic tenancy.^^* Ch* it may be 
terminated by an express surrender.^ss Likewise it may be 
terminated upon the happening of a particular contingency by 
reason of a special limitation.®^® The tenancy is not terminated 
by the death of either party,®^^ nor by his insanity.®^^'' 

Brown v. Vanhorii, 1 Bin. (Pa.) ZSi; longer until a specified period. This 

Ijesley v. Randolpli, 4 Rawle (Pa.) seems to make every tenancy from 

IZS; Barlow v. Wainwrigiit, 22 Vt. year to year a tenancy for years, that 

88, 52 Am. Dec. 79. is, for one year, which expires unless 

527 Bridges v. Potts, 17 C. B. (N. renewed. 

S.) 314; Soames v. Nicholson [1902J sst See post, chapter XX. 

1 K. B. 157; Doe d. King v. Grafton, 5S2 Doe d. Thomas v. Roberts, 16 

18 Q. B. 496; King v. Eversfield Mees & "W. 778. 

11897] 2 Q. B. 475. Compare Lewis sssDen d. Williams v. Bennett, 26 

v. Baker [1906] 2 K B. 599. N. C. (4 Ired. Law) 122. 

528 In re Threlfall, 16 Ci. Div. 274. 534 See post,- § 190 b. 

529 Floyd V. Floyd, 4 Rich. Law sirs Uoe d. Watt v. Stagg, 5 Bing. 
(S. C.) 23; Wilson v. Rodeman, 30 N. C. 564; Harding v. Crethorn, I 
S. C. 210. Esp. 57; Currier v. Perley, 24 N. H. 

530 Ariz. Rev. St. 1901, § 2694, pro- 219. 

Tides that a tenancy from year to 536 Clark v. Rhoads,. 79 Ind. 342. 
year shall terminate at the end of 537 gee ante, notes 521, 522. 
each year, unless written permission 537a McFall v. McFall, 35 S. C. 559, 

be given for the tenant to remain 14 S. E. 985, where the conclusion of 



§ 15 TENANCY AT SUFFERANCE. 141 

It does not clearly appear, so far as the writer has observed, 
whether, in jurisdictions where a periodic tenancy is still re- 
garded as one form of tenancy at will, the tenancy would be 
terminated by operation of law in the same manner as an ord- 
inary tenancy at will, as, for instance, upon a transfer by the 
owner of the land or by the tenant, or upon the death of either.^ss 

§ 15. Tenancy at sufferance. 

a. The common-law conception. The expression "tenant at 
(or by) sufferance" is quite frequently used, sometimes, it is sub- 
mitted, under a misconception as to its proper significance. The 
use of this, as of any common-law expression, in other than its 
common-law sense, can result only in perplexity and confusion, 
and it seems desirable to consider at length the conception of a 
tenant at sufferance as it presented itself to the builders of the 
common law. 

The only statement of the nature of a tenancy at sufferance 
which is in any way adequate, to be found either in the older 
or the later books, is that of Coke,^^'' and what has been said 
since his day in reference thereto, so far as it can be said to 
be based on any authority whatever, is based directly or in- 
directly on his statement.^*^ This we will accordingly insert at 

the lower court that "the fact that deteTmines his estate by voliintaTy 
the lessor had become Twn compos waste. Citing Phillips v. Corert, 7 
mentis, without a proceeding to have Johns. (N. Y.) 1, where it was de- 
the fact declared, would not termi- cided that one in possession at will, 
nate the tenancy," was approved. paying an annual rent, even though 
038 In Currier v. Perley, 24 N. H. a tenant from year to year for the 
219, 227, it is said that an estate from purpose of notice, was merely a ten- 
year to year may be ended by any ant at will for the purpose of 
act of the lessor or lessee which an action of trespass against 
would at common law terminate a him on account of voluntary 
lease at will, strictly, provided the waste. But in Austin v. Thomson, 
other party choose to take advantage 45 N. H. 113, it was in effect decided 
of it. The cases cited in support of that a tenant from year to year may 
the proposition, are, however, cases transfer his interest, which could not 
involving a "strict" tenancy at will, be done In the ease of a "strict" 
or in which there was a disclaimer tenancy at will, 
of the landlord's title, operating by b39 Co. Litt. 57 b. 
way of forfeiture. In Perry v. Carr, 54o See e. g., 2 Blackst. Comm. 150; 
44 N. H. 118, It is said that a ten- 1 Cruise's Dig., tit. 9 c. 2. 
ant at will holding from year tn year 



] 42 TENANCY AT SUFFERANCE, § 15 

length and we will then make some comments thereon. The 
statement of Coke is as follows: — "There is a great diversity be- 
tween a tenant at will and a tenant at sufferance; for tenant at 
will is always by right, and tenant at sufferance entreth by a 
lawful lease, and holdeth over by wrong. A tenant at sufferance 
is he that at the first came in by lawful demise and after his 
estate ended continueth in possession and wrongfully holdetlj over. 
As tenant pur terme d' auter vie continueth in possession after 
the decease of ce' que vie or tenant for years holdeth over 
his term; the lessor cannot have an action of trespass before 
entry. Now that a writ of entry ad terminum qui praeterit lyeth 
against such a tenant as holdeth over is rather by admission of 
the demandant than for any estate of freehold that is in him, 
for in judgment of law he hath but a bare possession. But against 
the king there is no tenant at sufferance, but he that holdeth 
over in the cases above said is an intruder upon the king, be- 
cause there is no laches imputed to the king for not entering. 
If tenant in tail of a rent grant the same in fee and dieth, yet 
the issue in tail may bring a formedon, and admit himself out 
of possession. The like law is it, if a man maketh a lease at 
will and dieth, now is the will determined ; and if the lessee con- 
tinueth in possession, he is tenant at sufferance, and yet the heir 
by admission may have an assise of Mordancestor against him. 
But there is a diversity between particular estates made by the 
terre tenant, as above is said, and particular estates created 
by act in law; as if a guardian after the full age of the heir 
continueth in possession, he is no tenant at sufferance, but an 
abator. ' ' 

The statement by Coke that tenant at sufferance has no estate 
of freehold, and that consequently a writ of entry lies against 
him in favor of the person entitled, the "demandant" only "by 
admission of the demandant, ' '®*i has reference to the rule that a 
real action could in theory be brought only against one seised of a 
freehold estate in the land,^*'^ and so, as Coke says, though a 
tenant at will became a tenant at sufferance upon the landlord's 
death, the heir of the latter could, for the purpose of bringing 
an assise of mort d' ancestor^^s against him, admit him to be 

5*1 See, also, 3 Blackst. Coram. 175. or mortancestor, see 3 Blackst. 

542 Stearns, Real Actions (2d Ed.) Comm. 185; 2 Pollock & Maitland, 
86, 175. Hist. Eng. Law, p. 56. 

543 As to assise of mort d'ancestor. 



§ 15 COMMON-LAW CONCEPTION. 143 

seised of a freehold estate, and he refers to the somewhat anal- 
ogous ease of a writ of formedon by issue in tail against one who 
is not seised of the rent. 

The view incidentally stated by this writer, that a tenant alf 
sufferance has no freehold estate, is deserving of attention. It 
might have been contended that one so tortiously holding over 
became seised in fee simple by wrong, as was,^** and indeed is,^*^ 
a person who disseises another, and this view of a tenant wrong- 
fully holding over was taken in early cases 5*6 ])XLt was after- 
wards repudiated.647 And the view that he has no estate in fee 
simple by wrong is necessarily involved in the statement else- 
where made by Coke that a release to him is void,^*^ since if 
he had a fee simple the release would be good as passing a 
right.549 

The statement of Coke that there is no tenant at sufferance 
against the king, because there is no laches imputed to the king 
for not entering, is, it would seem, based on a dictum^^" in a 
case in which Coke was counsel. So far as it involves an asser- 
tion that a tenancy at sufferance is the result of laches, it gives 
an erroneous impression as to the nature of the tenancy. There 
are many cases to the effect that one holding over his tenancy 
is a tenant at sufferance,^'^^ but if he were such a tenant only 
in case of laches on the part of the person rightfully entitled 
he could not be so called until the lapse of a considerable period 
after the end of the original holding, yet in no cases, except in 
a few in this country,^^^ where the courts were reduced to ex- 

544 Co. l.ltt. 296 b, Butler's note; 648 Co. Litt. 270 b. 
Williams, Seisin, 7; 2 Preston, Ab- =49 See Co. Lltt. 265 b, 217 a; 
stracts of Title, 284; Stearns, Real 2 Blackst. Comm. 325, and CMtty's 

note. 



Actions (2d Ed.) 5. 
545 See article by Prof. Ames in 3 



650 Per Manwood, C. B., in Sir 

Moil Finch's Case, 2 Leon. 143. 
Harv. Law Rev., at PP. 23, 27. r^^^^^ .^ ^ ^jj^.j^^^ ^^^^^^ j^ ^^^^^_ 

646 Y. B. 18 Edw. 4, f. 25, pi. 16; ^ey General v. Andrew, Hardres, 25. 

Y. B. 22 Edw. 4, f. 38 b, pi. 23. That there is no tenant at suffer- 

547 Allen v. Hill, Cro. Eliz. 238, 3 ance against the King seems to be 

Leon. 152; Rouse's Ciase, Owen, 27; decided in a nisi prius case. Tai- 

Tudor's Leading Cases in Real Prop, lor's Case, Clayt. 55. 

1; s. c, sub. nom., Rous v. Artois, 2 ssi gee post, at note 585. 

Leon. 45; Doe d. Burrell v. Perkins, 552 See post, at notes 595, 596. 
3 Maule & S. 271. 



144 TENANCY AT SUFFERANCE. § 15 

tremities to avoid the operation of ill conceived statutes requiring 
a notice to terminate a tenancy at sufferance, lias it ever been 
suggested that the tenancy at sufferance did not commence with 
•the eommencement of the wrongful holding. A tenancy at suf- 
ferance arises from laches only if by laches we understand a 
failure to eject a wrongful holder immediately upon the com- 
mencement of the wrongful holding. 

The diversity, mentioned by Coke, between one holding over 
after a particular estate made by the terre tenant, that is a ten- 
ant at sufferance, and one holding over after a particular estate 
created ' ' by aet in the law, " is no doubt based upon the familiar 
rule that one who enters by permission and abuses his right of 
entry does not thereby become a trespasser cA iuitiOj while if 
"entry, authority or license is given to any one by the law, and 
he doth abuse it, he shall be a trespasser ah initio.''^^^ So 
it is said by an early judge that if a lessee for years holds over 
he is not a trespasser because his entry was authorized by the 
lessor.ss* His entry thus not being made wrongful ab initio by 
his subsequent tortious holding over, it cannot support a claim 
that it involved a disseisin.^ss Qn the other hand, since one who 
enters by authority of law becomes by wrongfully holding over 
a trespasser ab initio, his original entry to the exclusion of all 
others is, in the eye of the law, a disseisin.sse 

553 Six Carpenters' Case, 8 Coke, ward atter the full age of the ward, 
146 a, 1 Smiths' Leading Cases (lltJi without title, this is a disseisin to the 
Ed.) 132. heir, because he came in by the law, 

554 Nele, J., in Y. B. 21 Edw. 4, 76 b, and therefore the continuance is be- 
pi. 9, cited Pollock, Torts (6th Ed.) yond the time whici the law limited 
379. him and against the trmst reposed 

555 See 1 Rolle, Abr. 659, to the effect in him by the heir, and the law 
that it involves no disseisin. Also makes this a disseisin to the heir. 
Com., Dig., Seisin (F 2) ; Doe d. Bur- who was not ever out of possession, 
rell V. Perkins, 3 Maule & S. 271; but the guardian was seised in his 
Doe d. Souter v. Hull, 2 Dowl. & R. right." Citing dictum of Culpepper 
3S. That he is not a disseisor is in- in Y. B. 7 Hen. 4, 42. That he is a 
volved in the decisions supra, note disseisor is also stated, on the au- 
547, that he is not tenant in fee thority of Rolle, in Com. Dig., Seisin 
simple by wrong. (F 1). Coke says that the guardian 

656 That he is a disseisor, see 1 thus holding over is an abator." Co. 

Rolle, Abr. 659, 1. 50, where it is Litt. 57 b, 271 b. The incorrectness 

said: "If guardian in Chivalry cson- of this statement is suggested in the 

tlnues possession of the land in note to the latter citation in Har- 



§ 15 COMMON-LAW CONCEPTION. 145 

It is stated by Coke that the lessor cannot have trespass 
against the tenant at sufferance before entry, and this statement 
is adopted in several modern cases.^^^ This, it is submitted, 
is not for the reason given by Blackstone, that "the tenant, 
being once in by a lawful title, the law (which presumes no wrong 
in any man) will suppose him to continue upon a title equally 
lawful, unless the owner of the land, by some public and avowed 
act, such as entry is, will declare his continuance to be tor- 
tious, "^s* The correct reason, as indeed is suggested elsewhere 
by Blackstone himself,^^* is that the action of trespass is pos- 
sessory in its nature, being founded upon an injury to the plain- 
tiff's possession, and proof of an actual or constructive pos- 
session in the plaintiff is indispensable. For this reason, at com- 
mon law, while a man actually disseised could maintain an 
action of trespass on account of the disseisin itself, he could not, 
until he entered (provided the right of entry still existed), re- 
cover in such action for the subsequent withholding of posses- 
sion, since, after the disseisin, the possession was no longer in him. 
After he had entered, or rather re-entered, however, he was re- 
garded as having had possession "by relation" from the com- 
mencement of the wrong, so as to be able to recover mesne prof- 
its.560 So in the case of tenant at sufferance, there was no possible 

grave and Butler's edition. "Abate- forcement, could the party keipt out 

ment," as Coke says (Co. Litt. of possession sue the wrongdoer oy 

277 a), "is when a man died seised a. mode of redress which was calcu- 

of an estate of an inheritance, and lated merely for injuries committed 

between the death and the entry of against the land while in the pos- 

the heir an estranger doth inter- session of the owner." A "deforce- 

pose himself and abate." See to the ment," as stated by the same author 

same effect 3 Blackst. Comm. 168; (3 Comm. 173), occurs wnen a ten- 

Challis, Real Prop. 207. ant for years or for life holds over. 

557 Trevillian v. Andrew, 5 Mod. That is, a "tenant at sufferance" is a 
384; Dorrell v. Johnson, 34 Mass. "deforceor." 

(17 Pick.) 263; Russell v. Fabyan, gboy. B. 19 Hen. 6, 28; 2 Rolle, 

34 N. H. 218; Rising v. Stannard, 17 Abr., f. 550, 1. 7; f. 553, 11. 50, 52; 

Mass. 282. See Toles v. Meddaugh, com. Dig., Trespass (B 2) (B 3) ; 

106 Mich. 398, 64 N. W. 329. Steams, Real Actions (2d Ed.) 362; 

558 2 Blackst. Comm. 150. 3 Blackst. Comm. 210; Bigelow, 
669 In 3 Blackst. Comm. 210, it is Torts (7'th Ed.) §§ 469, 4T0; Newell, 

said, referring to the action of tres- Ejectment, 623; Sedgwick & Walt, 
pass, that "neither, by the common Trial of Title to Land (2d Ed.) § 
law,' in case of an intrusion or de- 657. See Leland v. Tousey, 6 Hill 

L. and Ten. 10. '■ i 



146 TENANCY AT SUFFERANCE. § 15 

right of action in trespass on account of his taking of possession, 
since this was by permission, and there was no right of action 
for the subsequent wrongful withholding of possession, because 
the possession was in him and not in the person rightfully 
entitled. Consequently, the right to bring trespass for mesne 
profits accruing during the period of the wrongful retention of 
possession by the tenant at sufferance can, even after entry by 
the person entitled to possession, be based only upon the doctrine 
of relation. There is some ground for question whether that 
doctrine was applicable, at common law, to any case other than 
that of a disseisin.ssi The authorities before referred to, however, 
asserting that the lessee has no right of action in trespass against 
the tenant holding over until entry, assert by implication that 
he has such right after entry, and presumably at the present day 
the doctrine of relation would be applied in the case of a wrong- 
ful continuance in possession as well as in that of a wrongful 
taking of possession.^^^ it may further be remarked that under 
the system of fictions in ejectment which once prevailed, a 
judgment in ejectment against the tenant at sufferance was con- 
clusive as to the fact of entry before the time of the demise laid 
in the declaration,^^^ ^nd it seems that profits even anterior to 
that time could be recovered on the theory that the actual entry 
under the judgment in ejectment or the execution of the writ 
of possession thereunder related back to the original inception 
of the plaintiff's title as against the wrongdoer.*'^* On such 
a theory, in spite of the abolition of the fictions of an entry and 
demise, one who has obtained a judgment in ejectment against 
one wrongfully holding over and has acquired possession in 
accordance therewith could, at the present day, recover mesne 
profits for the full time of the wrongful holding, except in so far 
as the statute of limitations may be applicable. 

(N. Y.) 328; Reidv. Stanley, 6 Watts sea Adams, Ejectment, 388. See 

& S. (Pa.) 369; Cutting v. Cox, 19 Stearns, Real Actions, 364, 367. 

Vt. 517, and cases cited 28 Am. & ssi See Barnett v. Guildford, 11 

Eng. Enc. 'Law (2d Ed.) 577. Exch. 19; Adams, Ejectment, 392; 

561 See the discussion by Parke, Sergeant Manning's note to Butcher 
B, in Barnett v. Guildford, 11 Exch v. Butcher, 1 Man. & R. 221. As to the 
19. conclusiveness of a judgment in eject- 

562 See the case last cited, and ment in the action lor mesne profits, 
Leiand v. Tousey, 6 Hill (N. Y.) 328. see the notes to Aslin v. Parkin, 1 



§ 15 COMMON-LAW CONCEPTION. 147 

Not only is the person entitled to possession unable, until after 
entry, to maintain trespass for mesne profits against the tenant 
at sufferance, but he is also unable to maintain trespass for 
acts by such tenant involving injury to the land.^*" He may, 
however, even before entry, maintain an action on the case on 
account of such acts,^®^ and after entry his possession relates 
back, it seems, so as to enable him to maintain trespass on account 
of such acts as well as for the recovery of mesne profits.^^^ 

Not infrequently in modern cases the courts assume that a 
tenant at sufferance is a tenant of or under the person entitled 
to possession. The common-law authorities give not the slightest 
countenance to such a view. Coke speaks of tenant at sufferance 
as tenant "against" not "of" the reversioner,^®* and it is 
expressly stated that there is no privity between the tenant at 
sufferance and the reversioner,^®* and that for this reason a re- 
lease to the latter is not good. So it is the rule, except as changed 
by statute, that distress cannot be made after the end of the 
term s^* for the reason, it seems, that upon the ending of the 
term the relation of privity ceases."*^! A tenant pur auter vie 
who holds over after the death of the cestiii que vie, though well 
recognized to be a tenant at sufferance, cannot, with any show 
of reason, be regarded as tenant of the remainderman under 
whom he did not enter, with whom he has no contractual rela- 
tions, and who has never consented to his continued possession. 
So it is said by Lord Mansfield that the possession of a tenant 
pur auter vie holding over is adverse to the remainderman or 

Smith's Leading Cases (8th Am. Bd.) so? See authorities cited ante, notes 

1397. 561, 562. 

665 Russell V. Fahyan, 34 N. H. 218. sea Co. Litt. 57 b, where it is said 

And see authorities cited ante, note ^hat "against the king there is no 

^^'^* tenant at sufferance." 

in Dorrell v. Johnson 34 Mass. ^^, ^^ ^^^ ^70 h; Butler v. Duck- 

(17 Pick.) 263, it was held that the ^ ^^^ ^^^ ^^^ 

entry upon the premises by the agent , ,„ , 

of the lessor, by the latter's direc- ""Bro. Abr., Distress, pi. 19, pi. 

tion, and the cutting of trees by him, 74; Co. Litt. 47 b; Doctor & Student, 

was a sufficient entry to support Bk. 2, c. 9; Y. B. 14 Hen. 4, 31; note 

trespass against the tenant at suffer- (2) to Poole v. Longuevill, 2 Wms. 

ance for injuries to the soil. .Saund. 284 a. 

566 West v. Treude, Cro. Car. 187, =" 1 RoUe, Abr. 672, pi. 10; Bradby, 

W. Jones, 234; Russell v. Fabyan, 34 Distresses, 89. 
N. H. 218. 

J 



148 TENANCY AT SUFFERANCE. § 15 

reversioner, whicli could not be the ease were he to be regarded 
as holding of the latter,^^^ ^nd in accordance with this dictum is 
the weight of modern authority to the effect that the statute of 
limitations runs in favor of such tenant holding over.s'^s 

This single case of a life tenant holding over is sufficient to 
demonstrate that the expression "tenant at sufferance" has no 
reference to any idea that a relation of tenancy exists between 
such tenant and the person rightfully entitled. And the fact 
that a tenant for years wrongfully holding over is not, as is a 
life tenant so holding over, regarded as holding adversely to the 
person rightfully entitled,^'^^^ does not show that he is such 
person's tenant, but merely that the circumstance of his entry 
under a lease excludes the inference that his wrongful possession 
is under claim of right. At the present day, it is true, a tenant 
under a lease holding over his term is quite frequently regarded 
as a tenant of the person entitled, the reversioner, for the pur- 
pose of supporting an action against him for use and occupation. 
How one so holding over can, at the election of the reversioner, 
be liable either in an action of trespass for mesne profits or in an 
action based on the theory of a rightful possession and a con- 
tractual liability is somewhat difficult to say, but conceding that 
a termor so holding over is, under these decisions, to be regarded 
as a tenant of the reversioner, it is not because the early judges 
chose to call him a tenant at sufferance, but because the later 
judges have chosen to regard one who becomes tenant under a 
lease as continuing in privity to the reversioner, at the election 
of the latter, so long as he chooses to stay in possession, for the 
purpose of an action for use and occupation. 

While, as just stated, a tenant at sufferance is not as such prop- 
erly the tenant of the person entitled to possession, neither is 
he the tenant of the lord paramount, since this could be only on 
the theory that he has an estate in fee simple by wrong, which, 
as we have seen, he has not.^^* He is consequently tenant of 
nobody, and the expression "tenant" as applied to him may be 
regarded as used merely in the sense of one holding posses- 

572 Doe d. Fishar v. Prosser, Cowp. & Eng. Enc. Law (2(i Ed.) 809; 2 Tif- 
218. -fany, Real Prop. § 443, notes 60, 65. 

573 See Doe d. Parker v. Gregory, ,2 573a See ante, § 4, at note 74. 
Adol. & E. 14, and cases cited 1 Am. 574 gee ante, at note 547. 



§ 15 COMMON-LAW CONCEPTION. 149 

sion,5''5 and in confirmation of this view is the fact that none of 
the common-law authorities speak of any legal results as flowing 
from the existence of such a "tenancy." In other words, "ten- 
ant at sufferance" was merely a convenient name employed to 
designate this person, who was not a trespasser and not a dis- 
seisor, who was in possession and yet held of nobody. As said 
by Chief Justice RoUe, one holding over his term "is called" 
tenant at sufferance."'^^ He might be called a "deforceor," 
which he is, technically speaking,^''^ but so are certain other per- 
sons wrongfully in possession. The convenience of an expression 
specifically applicable to a tenant for a limited period who holds 
over after the termination of his rightful holding is unquestion- 
able, though the selection of an expression other than that actu- 
ally adopted might have avoided considerable misunderstanding. 
It has been suggested by writers of high reputation that this 
so-called tenancy had its origin in the desire of the judges to 
prevent adverse possession from arising upon the termination of 
a particular estate without the knowledge of the reversioner or 
remainderman.5^8 Apart from the fact that this statement in- 
volves the apparent misconception that such a holding cannot 
be adverse in eharacterj^"^^ it involves also, it is submitted, a 
chronological impossibility. Previous to the adoption of the stat- 
ute of 21 James I.,^^^ prescribing in effect a limitation of twenty 
years after the accrual of the "right or title" for actions of 
ejectment,58i the only statute in force limiting the period within 
which actions concerning land could be brought was that of 
32 Hen. 8, c. 2 (A. D. 1540), which provided that no person could 
bring any possessory action upon the seisin or possession of his 
ancestor unless such seisin or possession existed within fifty 
years before the bringing of the action, and that no action 
should be brought on the demandant's seisia unless such seisin 
existed within thirty years.''^^ Previous to this statute the only 

575 See ante, § 2. 579 See ante, at notes 568-573. 

B76 I Rolle, Abr. 659, pi. 15. sso 21 Jac. 1, c. 16 (A. D. 1623). 

577 See ante, note 559. ssi See Lightwood, Possession of 

578 Smith, Landl. & Ten. (3d Ed.)' ^^^^_ ^g^. ^^g^j,_ imitations, §§ 
34; 2 Smith's Leading Cases (11th ^^^ ^^^ 

Ed.) 558, notes to Nepean v. Doe d. 

Knight; Tudor's Leading Cases in • 582 See Angell, Limitations, appen- 
Real Prop., notes to Rouse's Case; dix, for the terms of this statute. 
Lightwood, Possession of Land, 161. 



150 TENANCY AT SUFFERANCE. § 15 

limitations as to the time of bringing real actions were those 
fixed by the statute of Merton, 20 Hen. 3, c. 8, and that of West- 
minster 1, 3 Edw. 1, e. 39, and these statutes, as merely requir- 
ingthe seisin not to be alleged previous to a certain date named 
in the first part of the thirteenth century, or, in some cases, in 
the latter part of the twelfth century, were practically inopera- 
tive for any purposes,''*^ and especially so to preclude a recov- 
ery of possession against a particular tenant holding over. 
Under such a statute, it is evident, there was no room for the 
modern doctrine that the limitation period begins to run only 
upon the commencement of adverse possession, that is, upon a 
disseisin, and not before. Consequently, in order to support the 
view that tenancy at sufferance arose from the desire of the 
courts ,to avoid the application of the doctrine of adverse pos- 
session in favor of a tenant holding over, it would be necessary 
to show that the expression "tenant at sufferance" was not ap- 
plied to a tenant holding over until the year 1546, at which 
time the statute of Henry 8, by its terms, first became opera- 
tive, but as a matter of fact the expression "tenant at suffer- 
ance ' ' was applied in this sense before the date named.^** More- 
over, the fact that one is tenant at sufferance does not necessa- 
rily exclude the application of the doctrine of adverse possession, 
as appears from the ease of a tenant pur auter vie holding over 
after the death of the cestui que vie.^^*'^ And while a tenant 

■'■83 See 2 Co. Inst. 238 ; 3 Blackst. "We find the expression in several 
Comm. 188; Angell, Limitations, § cases, in 17 Hen. 7 (A. D. 1502), ap- 
13; 3 Harv. Law Rev., at p. 102, plied to a feoffor to his own use re- 
article by Prof. Maitland. maining in possession. See Keilw. 

584 In Y. B. 12 Edw. 4, 12 (A. D. 41 b, pi. 2, 42 b, pi. 7, 46 b, pi. 2. 
1473), we find reference to one who Likewise in Keilw. 160 b, pi. 1 (2 
"occupies by sufferance at will" Hen. 8), in the same sense, 
without, however, any statement of In the argument in Rouse's Case, 
what is meant thereby. In Y. B. Owen, 27, it is said that Littleton 
21 Hen. 7, 38 (A. D. 1506), Brooke, (circa A. D. 1470) mentions tenant 
as counsel, remarks that a tenant at at sufferance in his chapter on Re- 
will holding over is "tenant at suffer- leases, 108, and in Bro. Abr., Ten- 
ance." In Lord Zouche's Case (35 ant per Copie, pi. 4, also, it is inti- 
Hen. 8, A. D. 1543), reported Dyer, mated that Littleton uses the ex- 
57 b, pi. 1, one to whom a lease was pression. The present writer is un- 
made for another's life, holding over able to find it in Litttleton. 
after the death of cestui que vie, is 5s4a See ante, at note 573. 
stated to be "tenant by sufferance." 



§ 15 MODERN CONCEPTIONS. 151 

who enters under a lease for years and wrongfully holds over is 
not regarded as holding adversely to his landlord, this does not 
appear to have been decided until the nineteenth century, genera- 
tions after the introduction of the expression "tenancy at suffer- 
ance." 

b. Modern conceptions. The expression "tenant (or ten- 
ancy) at sufferance" is frequently applied in modern decisions, 
as by the earlier authorities, to the case of one entering under a 
lease for years, who "holds over," that is, wrongfully retains 
possession, beyond his term.^*^ Likewise, a tenant at will who 
holds over after the termination of the tenancy becomes, it is 
generally recognized, a tenant at sufferance,588 but if a tenancy 
at will is terminated by the act of the tenant in attempting to 
transfer his interest and putting the transferee in possession, the 
latter is not a tenant at sufferance but is a mere disseisor or 

585 Butler V. Duckmanton, Cro. Jac. hold. Edwards v. Hale, 91 Mass. (9 

169; Sutton v. Hiram Lodge, 83 Ga. Allen) 462. 

770, 10 S. E. 585, 6 L. R. A. 703; 5s«Bro. Abr., Tenant per Copy, pi. 

Willis V. Barren, 118 Ga. 906, 45 S. *: Co. Litt. 57 b; McLeran v. Ben- 

E. 794; Moore v. Moore, 41 N. J. t""*' ^^ ^al. 329, 14 Pac. 879, 2 Am. 

St. Rep. 814; Creech v. Crockett, 59 
Mass. (5 Cush.) 133; Emmes v. Fee- 
ley, 132 Mass. 346; Lash v. Ames, 171 

Lord, 175 Mass. 384, 56 N. E. 570; jjg^g ^g^^ gg j^ ^ ggg. ^ardell v. 

Russell V. Fabyan, 34 N. H. 218; jjtter, 143 Mass. 19, 8 N. B. 420; 

Livingston v. Tanner, 14 N. Y. (4 ^arsters v. Cling, 163 Mass. 477, 40 

Kern.) 64; Jackson v. Parkhurst, 5 j^ ^ ,j^^. Esty v. Baker, 50 Me. 325, 

Johns. (N. Y.) 128; Williams v. ,^9 j^^ p^^ g^^g. ^gg^ ^ J^^^ 48 

Ladew, 171 Pa. 369, 33 Atl. 329; ^^ ggg. ^^^^^ ^ Thieman, 15 Mo. 

Wood V. Page, 24 R. I. 594, 54 Atl. ^p^ g^^. jj^g ^ Bennett v. Turner, 

372; Gulf, C. & S. F. R. Co. v. Cusen- 7 jjggg g. ^ 226; 9 Mees. & W. 643; 

berry, 86 Tex. 525, 26 S. W. 43. p^g ^ Q^^^y. ^ carter, 9 Q. B. 863. 

One having a contract for the jjg becomes tenant at sufferance as 

sale of land to him, who takes a ^o the whole land upon a conveyance 

lease from the vendor for a fixed y^y jj^g landlord of part of the land, 

term, is a tenant at sufferance if he Emmes v. Feeley, 132 Mass. 346. 

holds over the term. Moore v. Smith, Presumably it is on this theory 

56 N. J. Law, 446, 29 Atl. 159. that a cestui que trust remaining in 

A tenant so holding over the term possession after a sale and convey- 

named was regarded as tenant at ance by the trustee was regarded as 

sufferance, although the lease pro- a tenant at sufferance ( Work v. Bray- 

vided that the lessee would pay the ton, 5 Ind. 396), he being a tenant 

agreed rent for the term named and at will before the conveyance. See 

for such further term as he may post, § 42. 



Law, 515; Poole v. Bngelke, 61 N. J. 
Law, 124, 38 Atl. 823; Devine v. 



152 TENANCY AT SUFFERANCE. § 15 

trespasser, since he did not enter by right as is necessary to make 
one a tenant at sufferance.^*'^ 

One to whom a life tenant has conveyed the premises or has 
leased them, and who holds over after the death of the tenant 
for life, is also a tenant at sufferance,^^^ this being in effect the 
case mentioned by Coke of a tenant pur auter vie continuing in 
possession after the death of the cestui que vie. 

A sublessee of a tenant for years, holding over after the ex- 
piration of the lessor's term, is properly regarded as a tenant at 
sufferance.'*' 

A tenant for life or years whose estate is subject to a special 
limitation, by which his estate is to terminate upon the happen- 
ing of a contingency named,^^" no doubt becomes a tenant at 
sufferance if he continues in possession after the happening of 
such eontingeney.s^i The fact that a tenant for years has vio- 
lated a condition subsequent cannot, it seems, render him or one 
holding under him a tenant at sufferance, since such violation 
does not in any way change the nature of his holding until the 
reversioner enforces his right of forfeiture.^®^ 

5S7 Co. Litt. 57a; Reckhow v. the life tenant holding over Is "eith- 

Schank, 43 N. Y. 448 ; Cunningham v. er a tenant at sufferance or a tenant 

Holton, 55 Me. 33. And see Cooper at will." But he cannot be a tenant 

V. Adams, 60 Mass. (6 Cush.) 87. at will so long as his holding is with- 

But in McLeran v. Benton, 73 Cal. out the permission of the person 

329, 14 Pac. 879, 2 Am. St. Rep. 81, entitled to possession, 

and Meier v. Thiemann, 15 Mo. App. sss Wheeler v. "Wood, 25 Me. 287; 

307, the transferee of a tenant at will Evans v. Reed, 71 Mass. (5 Gray) 

was regarded as a tenant at sufEer- 308; Magee v. Gilmour, 18 Can. Sup. 

ance. Ct. 579; Simpkin v. Ashurst, 4 Tyrw. 

Bsszouche's Case, 1 Dyer, 57; 781, 1 Cromp. M. & R. 261. But in 

Rouse's Case, Owen, 27; Allen v. Hill, Pearce v. Ferris, 10 N. Y. (6 Seld.) 

Cro. Eliz. 238, pi. 5; Doe d. Thomas V. 280, such an undertenant holding 

Roherts, 16 Mees. & W. 780; Wright over was regarded as a trespasser, 

v. Graves, 80 Ala. 416; Manning v. sao See ante, § 12 d. 

Brown, 47 Md. 506; Guthmann v. sai So it has been decided that a 

Vallery, 51 Neh. 824, 71 N. W. 73.4, lessee for a term becomes a tenant at 

66 Am. St. Rep. 475 ; Day v. Cochran, sufferance if he holds over after the 

24 Miss. 261; Lyebrook v. Hall, 73 lessor has terminated the tenancy 

Miss. 509, 19 So. 348; Griffin v. Shef- under a clause giving him the option 

field, 38 Miss. 359, 77 Am. Dec. 646; so to do. Abeel v. Hubbell, 52 Mich. 

Kenney v. Sweeney, 14 R. I. 581. In 37, 17 N. W. 231. 

Peters v. Balke, 170 HI. 304, 48 N. b92 in Allen v. Hill, Cro. Eliz. 238, 

E. 1012, it is said that the lessee of it was apparently assumed that a 



§ 15 MODERN CONCEPTIONS. 153 

While, as above shown, there are many modern cases in which 
the expression tenant at sufferance has been applied in accord- 
ance with the common-law authorities to one who holds over 
after the expiration of his estate, there are some cases in which 
the courts have asserted views in this regard not supported by 
the older authorities, and the framers of legislation have occa- 
sionally used the expression without apparently the slightest 
knowledge of its true meaning. Thus, the fact that, as Coke 
says, "there is a great diversity between a tenant at will and a 
tenant at sufferance," in that one holds rightfully and the other 
wrongfuIly,s93 has not infrequently been ignored in statutory 
enactments which, under the mistaken idea, it seems, that "suf- 
ferance" means "permission" and that, accordingly, a tenant 
at sufferance is a tenant by permission, have provided that a 
tenancy at sufferance can be terminated by a notice of a certain 

life tenant, whose estate was subject leasing was a tenant at sufferance. 
to a "proviso" that it should end if As to these two cases it may be said 
she should dwell out of London, be- that one to whom an under lease 
came tenant at sufferance after she is made is a tenant in accordance 
did so dwell. There, it seems, the with the terms of the lease, even 
court must have regarded the "pro- though the making of the lease in- 
viso" as a special limitation, since volves a breach of covenant on the 
they considered her estate at an end part of the lessor. Even a condition 
though she 'continued in possession, providing for re-entry in case of an 
and there was no re-entry, which was underlease does not affect the status 
always necessary at common law to of the under tenant until it is en- 
terminate a freehold estate for forced. Post, §§ 152 j (2), 194 d. 
breach of a condition. 593 Co. Litt. 57 b. "There can be 

In Cross v. Upson, 17 Wis. 638, 86 no such thing as tenant by sufferance 
Am. Dec. 730, it was said that one who when the tenancy is the result of 
entered as undertenant at will might, agreement." Stayton, J., in Willis v. 
by reason of a covenant contained in Moore, 59 Tex. 628, 46 Am. Rep. 284. 
the original lease, against underleas- "One cannot, while he is rightfully 
ing without consent in writing, and occupying under the authority of the 
■ of the condition for forfeiture In case owner, be a tenant at sufferance." 
of violation, have been regarded as Field, J., in Lyon v. Cunningham, 136 
a qiMsi tenant at sufferance. This Mass. 532. 

case is cited in Washington Real Es- In Clark v. Tukey Land Co., 75 
tate Co. V. Roger Williams Silver Co., Neb. 326, 106 N. W. 328, the opinion 
25 R. I. 483, 56 Atl. 686, as authority says that "when a tenancy from 
for a statement that one entering as month to month is terminated for de- 
licensee or sublessee under a tenant fault in the payment of the rent 
who was not prohibited from sub- reserved, the tenant may still occui)y 



154 TENANCY AT SUFFERANCE. § 15 

number of days.^^* To avoid the absurdity involved in such a 
requirement, that one wrongfully in possession should be entitled 
to notice to quit, the courts have occasionally seized upon the 
statement made by Coke, and adopted by Blackstone and other 
writers, that there is no tenant at sufferance against the king 
because he cannot be guilty of laches, and have accordingly 
decided that a tenant holding over is not a tenant at sufferance, 
so as to be entitled to notice, until the person entitled has been 
guilty of laches.^^^ And occasionally they have gone so far as 
to hold that the one so holding over was not a tenant at suffer- 
ance unless the holding was so long continued as to authorize the 
implication of an assent to the holdingj^"^ thus in effect regarding 
one as a tenant at sufferance only when he is a tenant at will or 
perhaps a periodic tenant. 

In one sta,te it is provided by statute^^"^ that one obtaining 
possession without the consent of the owner or person entitled 
to possession shall be a tenant at sufferance and shall be liable 
for a reasonable rent. This evidently involves a misuse of the 
expression. 

In several cases, without reference to any statute bearing on 
the subject, the courts have referred to one holding by permis- 
sion as a tenant at sufferance, thus ignoring the distinction be- 
tween a tenant at sufferance and one at will.^®® 

the premises by permission of the 51 N. W. 441. In the latter case it 
landlord as a tenant by sufferance is said, somewhat singularly, that 
until the formal statutory notice" the abolition of the distinction he- 
necessary to support a summary pro- tween tenant at will and tenant at 
ceeding has been given, and that sufferance involves "the abolition of 
consequently the statute of limita- a mere technicality of the old law, 
tions does not begin to run till such for the retention of which no good 
notice is given. The error of the reason can be given." This remark 
opinion lies in regarding a tenant would presumably not have been 
at sufferance as a tenant by per- made had it been understood that the 
mission whose tenancy must be term- distinction referred to is that be- 
inated by notice. tween a rightful and a wrongful 

68* See post, § 196 d. holding. 

595 Moore v. Morrow, 28 Cal. 551 ; =9' Ball. Ann. Codes & St. Wash. 

Rowan v. Lytle, 11 Wend. (N. Y.) § 4571. 
616. 598 lu Kaufman v. Cook, 114 111. 

»»« Smith V. Little-field, 51 N.Y. 539; 11, 28 N. E. 378, it is decided that if 

Meno V. Hoeffel, 46 Wis. 282, 1 N. W. one "rents" property for a female 

SI; Bldred v. Sherman, 81 Wis. 182. relative, that she may live thereon. 



§ 15 MODERN CONCEPTIONS. 155^ 

If a husband who has, by the common law or by statute, an 
estate in his wife's land during her life holds over after her death 
without right, he is not, it seems, a tenant at sufferance, since his 
estate was created by act of the law.59» And it has been held 
that if after a divorce the wife remains in possession of her 
husband's property without permission, she is not such a tenant.^"" 
A decision which has been made that a wife retaining possession 
without permission after a conveyance of the premises by her 
husband to a third person is a tenant at sufferance^"! is, it seems 
questionable. 

with a promise to her that if he can year to year went into possession in 
buy it he will deed it to her, she is, the latter's place, and it was held 
until he buys, a tenant at sufferance, that, having entered under an "im- 
But, being in possession by permis- plied license" of the original lessee, 
sion of the person otherwise entitled, he became a tenant at sufferance, and 
she is, it is submitted, at least a by subsequently paying monthly rent 
tenant at will, if a tenant at all. he became a tenant from month to 
She might be merely a licensee. So month. If he entered rightfully, it 
in Proctor v. Tows, 115 111. 138, 3 is submitted, he could not be ten- 
N. E. 569, it is said that one per- ant at sufferance, and if he entered 
mitted to occupy with no agreement wrongfully, for lack of power in the 
as to time is a tenant at sufferance, original lessee to transfer the pos- 

In Cargar v. Fee, 140 Ind. 572, 39 session, he was a disseisor. Compare 
N. E. 93, it is said that the mere per- note 592, ante. 

mission to use land, without any pro- 59» See Pattison v. Dryer, 98 Mich, 
vision for rent, could at most amount 564, 57 N. W. 814; Livingston v. Tan- 
to tenant at sufferance, if indeed it ner, 14 N. Y. (4 Kern.) 64. See ante, 
could amount to that." If possession at notes 553-556. 
is not intended to be given. It would 6»o Brown v. Smith, 83 111. 291. If 
be a license. But it could not, in she holds by permission she is at 
any case, be a tenancy at sufferance, least a tenant at will. Wilson v. 
it being permissive and not wrong- Merrill, 38 Mich. 707. 
ful. It is not perceived how the ab- eoi Taylor v. O'Brien, 19 R. I. 429, 
sence of a stipulation for compen- 34 Atl. 739. It is here said that "to 
sation can affect the character of the constitute a tenancy by sufferance, 
holding. In Howard v. Carpenter, all that is neces^sary is that the ten- 
22 Md. 10, a person going into pos- ant should have entered into pos- 
session by permission, with the ex- session lawfully and shall continue 
pectation of obtaining a lease, is re- to hold after the termination of his 
ferred to as a tenant at sufferance. right." This ignores entirely the 

In Washington Real Estate Co. v. distinction asserted by Coke and 
Roger Williams Silver Co., 25 R. I. others between one who entered by 
483, 56 Atl. 686, a purchaser of the act of the terre tenant and by act 
personal property of a tenant from of the law. 



156 TENANCY AT SUFFERANCE. | 15 

c. Rights and liabilities of tenant. The rights and liabili- 
ties of a tenant under a lease who holds over after the expiration 
of his tenancy, and who is, as we have seen above, one of the class 
of persons called tenant at sufferance, we will consider in an- 
other place.-«°2 "We will here briefly refer to such rights and lia- 
bilities of a tenant at sufferance as are independent of the con- 
sideration whether he entered under a lease or otherwise. These 
rights and liabilities are, it seems, the same as those of any other 
person in wrongful possession of land, except as these might in 
any case be based on the fact that the possessor has an estate in 
fee by wrong, which, as we have seen, a tenant at sufferance has 
not.®"* A tenant at sufferance has the same right to the crops 
which he may have gathered during his possession as has any 
trespasser,^"* and his possession will, it seems, support an action 
of trespass against a third person for any interference there- 
with.*"* He cannot recover for damage to the freehold, since 
this belongs to another,*"* and he has no interest in the land 
for which he can recover compensation in case the premises are 
taken for public use.*"^ He is, it has been decided, liable in 
damages for any injury to the premises which would not have 
■occurred but for his wrongful retention of possession, as when 
fire catches from his use of a stove on the premises.*"^ 

602 See post, chapter XXI. as transferee of the lessor, had a 

603 See ante, at note 547. right to the possession. 

604 Wolcott V. Hamilton, 61 Vt. «"= Gulf, C. & S. F. R. Co. v. Cusen- 
79, 17 Atl. 39. berry, 86 Tex. 525, 26 S. W. 43. 

605 Com. Dig., Trespass (B 1) • 2 ^"^ Shaaber v. Reading, 150 Pa. 
Rolle. Abr. 551, 1. 40. ^^^' ^^ ^"- 692- 



In Esty V. Baker, 50 Me. 325, 79 
Am. Dec. 616, it is said that a ten- 



608 Russell V. Fabyan, 34 N. H. 218, 
citing West v. Treude, Cro. Car. 187, 
where an action on the case for waste 
ant at sufferance cannot sue in tres- by a tenant at sufferance was per- 
pass on account of a peaceable entry, mitted, it being said that either case 
But there the entry was by one who, or trespass would lie. 



CHAPTER III. 

THE CREATION OF THE RELATION— THE LEASE OR DEMISE. 

16. The nature of a lease or demise. 

17. Tenancy "by implication." 

18. Evidence of creation of tlie relation. 

19. Attornment. 

a. Double meaning of term. 

b. Attornment by tenant to stranger. 

(1) Is usually invalid. 

(2) Cases excepted in the statutes, 
(a) Attornment under compulsion. 
(4) Validity as against tenant. 

c. Attornment equivalent to acceptance of lease. 

d. Acts showing attornment. 

20. Lease providing for division of crops — Cropping contract distin- 

guished. 

21. The parties to a lease — ^Personal capacity. 

a. Married women. 

(1) As lessors. 

(a) At common law. 

(b) ■ In equity. 

(c) Under statutes. 

(d) Recovery of rent. 

(2) As lessees. 

b. Infants. 

(1) As lessors. 

(2) As lessees. 

c. Persons non compos mentis. 

(1) As lessors. 

(2) As lessees. 

d. Corporations. 

(1) Power to make or take lease. 

(2) Effect of ultra vires lease. 

22. The parties to a lease — Official capacity. 

a. Trustees. 

b. Executors and administrators. 

(1) In absence of express authority. 

(2) Express powers. 

(3) Statutory powers. 



158 CREATION OF THE RELATION. 

c. Guardians. 

(1) Of infants. 

(2) Of lunatics. 

d. Receivers. 

§ 23. Lease to two or more persons. 

24. Wtiat may be the subject of a lease. 

a. Corporeal and incorporeal things. 

b. Personal chattels. 

c. Part of building. 

25. Necessity of writing — Statute of frauds. 

a. The English statute. 

b. The state statutes. 

' c. "Leases" within the statutes. 

d. Short time leases. 

e. Sufficiency of writing. 

f. Right to assert the statute. 

g. Effect of noncompliance with the statute. 

(1) Resulting tenancy at will or periodic tenancy. 

(2) Effect of stipulations as to terms of holding. 

(3) Lease not valid for part of term. 

(4) Lessee's liability for rent or for use and occupation. 

(5) Part performance. 

26. The form and parts of an instrument of lease. 

a. General considerations. 

b. Words of demise. 

c. Description of premises. 

(1) Requirement of certainty. 

(2) Scope and effect. 

d. Exceptions and reservations. 

27. Signing of the instrument. 

28. Sealing of the instrument. 

29. Attestation of the instrument. 

30. Acknowledgment of the instrument. 

31. Delivery of the instrument. 

32. Acceptance of the instrument. 

33. Recording of the instrument. 

34. Lease made by agent. 

a. Agent's power to make lease. 

b. Form of authorization. 

c. Ratification. 

d. Form and execution of lease. 

35. Lease made on Sunday. 

36. Construction of the instrument. 

37. Necessity of entry — Interesse termini. 

38. Fraud in creation of the relation. 

a. Fraud on part of lessee. 

b. Fraud on part of lessor. 

39. Mistake in creation of the relation. 

40. Lease for illegal purpose. 



I 16 LEASE OR DEMISE. 159 

§ 16^ The nature of a lease or demise. 

We have had occasion, in describing the various classes of ten- 
ancies, to refer to the "lease" or "demise" by which a tenancy- 
is created. We will, in this chapter, undertake to consider the 
general characteristics and requisites of a lease or demise as 
the legal act by which a tenancy is created, with no reference, 
for the most part, to any particular class or classes of tenancy 
created thereby. 

The word "lease" is unfortunately used in different senses. 
Its primary signification is well given by Blackstonei as "prop- 
erly a conveyance of any lands or tenements (usually in consider- 
ation of rent or other annual recompense) made for life, for 
years, or at will, but always for a less time than the lessor hath 
in the premises." Other standard textbooks give substantially 
similar definitions, ^ and that a lease is a conveyance has been 
frequently stated judicially.* 

The word "lease" is also used in a more extended sense tu 
describe not only the legal act (the conveyance) by which a 
lesser estate is vested in another, but, in addition, the legal act 

1 2 Blackst. Comm. 317. grants only a portion of his estate, 

2 So In 1 Piatt, Leases, 1, a lease i eserving to himself a reversion, the 
IS defined as "a grant or assurance of conveyance is a lease." Comyn, 
■a present or future interest for life, Landl. & Ten. 51. 

for years, or at will, in lands or s Jones v. Marks, 47 Cal. 242 ; Carl- 

Trther property of a demisable nature, ton v. Williams, 77 Cal. 89, 19 Pac. 

a reversion being left in the party 185, 11 Am. St. Rep. 243; McKee v. 

from whom the grant or assurance Howe, 17 Colo. 538, 31 Pac. 115; New 

proceeds." In Sheppard's Touch- York, C. & St. L. R. Co. v. Randall, 

stone, 266, it is said that "a lease 102 Ind. 453, 26 N. E. 122; Craig v. 

doth properly signify a demise or Summers, 47 Minn. 189, 49 N. W. 

letting of lands, rent, common or 742, 15 L. R. A. 236; Crouse v. Mitch- 

any hereditament unto another for ell, 130 Mich. 347, 90 N. W. 32, 97 

a lesser time than he that doth let Am. St. Rep. ?79; In re Tuohy's Es- 

it hath in it." And see, to the same tate, 23 Mont. 305, 58 Pac. 722 ; Aver- 

«ffect, 2 Preston, Abstracts of Title, ill v. Taylor, 8 N. Y. (4 Seld.) 44; 

124. Spielmann v. Kliest, 36 N. J. Eq. 203 ; 

"A lease is a conveyance by way Shimer v. Phillipsburg, 58 N. J. Law, 

of demise of lands or tenants for 508, 33 Atl. 852; Clark v. Hyatt, 55 

life or lives, for years, or at will, N. Y. Super. Ct. (23 Jones & S.) 98; 

"but always for a less term than the Wien v. Simpson, 2 Phila. (Pa.) 158; 

party conveying himself has in the Gray v. LaFayette County, 65 Wis. 

premises". Woodfall, Landl. & Ten. 567, 27 N. W. 311; State v. Morrison, 

<16th Ed.) 132. "When the alienor 18 Wash'. 664, 52 Pac. 228. 



160 CREATION OF THE RELATION. § 16 

or acts by which various contractual obligations are created in 
connection with such conveyance, that is, it is applied to an 
aggregate of simultaneous legal acts, by one of which a lesser 
estate is transferred to another, and by another or others of 
which the transferor or transferee, or both, contract to do or leave 
undone certain things. In other words, it describes a lease in 
the sense first above referred to plus what are usually described 
as the "covenants of the lease."* 

A third sense in which the word "lease" is frequently used 
is to describe the written instrument in which such a conveyance, 
and the covenants connected therewith, may be incorporated. 
"When we speak of the ' ' execution " of a lease, for instance, we 
evidently use the word "lease" in a sense different from that 
in which we use it when we say that a "lease" for less than 
three years need not be in writing. Not infrequently, in the 
course of this work, we will use the expression "instrument of 
lease" to avoid confusion in this respect. 

The word "lease" is also, as we have before remarked,^ used, 
by a sort of metonymy, to describe the estate created by the 
lease. 

In view of the fact that the entrance into contractual obliga- 
tions by means of "covenants" ordinarily constitutes a most 
important part of a transaction involving the creation of the re- 
lation of landlord and tenant, it is not surprising that quite 
frequently the courts have lost sight of the fact that the really 
essential part of the transaction is a conveyance, and instead 
regard it as involving the creation of contractual obligations 
only, frequently speaking of the "contract of lease. "^ The ex- 

* In Anson, Contracts (7th Ed., at 5 gee ante, § 12 a at note 17. 
p. 8), it is said: "It is no doubt « Compare Austin, Jurisprudence 
possible tliat contractual obligations (3d Ed.) 387. "Rights in rem some- 
may arise incidentally to an agree- times arise from an instrument 
ment which has for its object the which is called a contract, and are 
transfer of property. In the case of therefore said to arise from a con- 
a conveyance of land with covenants tract. The instrument in these cases 
annexed, or the sale of a chattel wears a double aspect, or has a two- 
wlth a warranty, the obligation fold effect. To one purpose it gives 
hangs loosely to the conveyance or jus in personam and is a contract, 
sale, and is so easily distinguishable to another purpose it gives jus in rem 
that one may deal with it as a con- and is a conveyance. When a so- 
tract. called contract passes an estate, or. 



LEASE OR DEMISE. 161 

pression "contract of lease," if it is to be used at all, should 
be applied merely to the aggregate of the covenants into which 
the parties may have entered in connection with the making of 
the conveyance by way of lease. But such a conveyance may be 
made without any accompanying covenants, in which case the 
expression ' ' contract of lease ' ' would appear to be inapplicable.'"' 
The word "contract," it is true, has occasionally been used in 
a sense broad enough to include a conveyance, on the theory 
that a conveyance is the result of agreement,^ a theory which, it 
may be remarked, is not in harmony with the common-law con- 
ception of a conveyance by deed.^ Giving the word "contract" 
this broader signification, a conveyance by way of lease is a 
contract, but the same may be said of a conveyance in fee simple. 
The modern scientific writers on the law of contract do not use 
the term in this extended sense, but restrict it to the voluntary 
creation of rights in personam as distinguished from rights in 

in the language of the modern civ- In some of the Southern states the 
ilians, a right in rem, to the obligor, expression "rental contract" is much 
it is to that extent not a contract but in vogue. It is unfortunate that 
a conveyance, alhough it may be a such expressions should be used, with 
contract to some other extent and the necessary result of obscuring 
considered from some other aspect, fundamental legal principles. We do 
A contract is not distinguished from not refer, of course, to states which 
a conveyance by the mere consent of have avowedly accepted the civil law 
parties." view of the subject. 

Statements in the old books, as' in s See Holland, Jurisprudence (Sth 
Bro. Abr., Contracts, pi. 43; Co. Litt. Ed.) 242. In Professor Salmond's 
47 b, that a lease is a contract, have able work on Jurisprudence (2d Ed.) 
reference to the fact that an action 307, note, it is said: "Contract is 
of debt might be maintained for the sometimes used in the wide sense of 
rent reserved. Sse post, .§ 157 a, any bilateral act in the law (cit- 
note 294. Compare the statement in ing Holland, Jurisprudence, supra). 
Co. Litt. 45 b, that "whatsoever word This, however, is very unusual, and 
amounteth to a grant may serve to it is certainly better to use agree- 
make a lease," showing clearly that ment in this sense. Contract, being 
author's conception of a lease as a derived from contrahere, involves the 
conveyance. idea of binding two persons together 

^ Occasionally the expression by the vinculum juris of an obliga- 
"breach of lease" or "breach of lease tion. An assignment is not a con- 
contract" is made use of by the courts, tract, and a release is the very re- 
meaning thereby the breach of some verse of a contract." 
particular contractual stipulation o That at common law a convey- 
contained in the instrument of lease, ance by deed is perfectly valid with- 

L. and Ten. 11. 



162 CREATION OF THE RELATION. § 16 

rem.^° And to speak of a legal act as a contract when it in- 
volves the transfer of an interest is at best misleading, even 
if not erroneous. 

Taking the most ordinary ease of a lease, one for a term of 
years, it would generally be conceded that its effect is to create 
in the lessee an estate for years, a class of estate as well recog- 
nized at the present day, though not formerly,' i as an estate in 
fee simple or for life. So a lease for life undoubtedly creates 
an estate for life in the lessee, a fact which was fully recognized 
at common law in the requirement of livery of seisin to validate 
such a lease.i2 And a lease from year to year, or other periodic 
lease, creating as it does a term for at least one year or other 
period named, must also be regarded as creating an estate in the 
lessee. Even a tenant at will has been recognized as having 
an estate in the land.i^ In all these cases the tenant of the par- 
ticular estate named may assert his rights of possession and 
enjoyment as against any person whomsoever, that is, he has that 
proprietary interest in land which goes by the name of estate. 
And to create such a proprietary interest a conveyance, as dis- 
tinguished from a contract, is necessary. 

The not infrequent failure to recognize that a lease is some- 
thing more than a mere contract is, it is conceived, to a consid- 

out any consent, or even knowledge chattel interest." That the term is 

thereof, on the part of the grantee, a chattel interest is no doubt to he 

see Harriman, Contracts, §§ 82, 83; conceded, but that it is not an estate 

2 TifEany, Real Prop. § 407. is certainly not the law generally, 

10 See Anson, Contracts (7th Ed.) though it was the law in England, as 
3; Pollock, Contracts (6th Ed.) Ap- has been before stated, five hundred 
pendix A; Kammon, Contracts, §§6, years ago. So the statement in the 
7, note (17); Clark, Contracts, 11. recent case of In 're Hubbell Trust, 
So Pothier, Obligations, 3, says: 135 Iowa, 637, 113 N. W. 512, that 
"That kind of agreement, the object "the lease of land by which a tenant 
of which is to form some engagement, acquires the right of possession for 
is that which is called a contract." a specified period vests in him no 

11 See ante, § 12 a. interest in the land itself," cannot 
In Trustees of Wadsworthville be approved. 

Poor School V. Jennings, 40 S. C. 12 Barwick's Case, 5 Coke, 93; 

168, 18 S. E. 257, 891, 42 Am. St. 2 Preston Estates, 162. 

Rep. 854^ there is a dictum that "a is Co. Litt. 55a; 2 Blackst. Comm. 

lessee has no estate in the lands 145; 1 Preston, Estates, 28; Wil- 

demised to him. His term, under liams. Real Prop. (18th Ed.) 434. 

the law, is but a chose in action or See ante, § 13 c. 



§ 16 LEASE OR DEMISE. 163 

erable extent due to the fact that a writer of recognized standing, 
two centuries ago/* defined a lease as a contract * * * for 
the possession and profits of lands on the one side, and a re- 
compense by rent, or other consideration, on the other." This 
definition, or one substantially identical therewith, in regarding 
a lease purely as a contract, has been accepted in a number of 
caseSjis frequently upon the express authority of the writer re- 
ferred to. The fundamental objection to such a definition of a 
lease is that it entirely ignores the common-law theory of a 
particular and a reversionary estate in the lessee and lessor 
respectively, and substitutes therefor the civil law conception 
of a contract of hiring (locatio conductio), which passes no title 
or property in the thing hired, but merely binds the owner 
(locator) to secure the enjoyment of the thing to the hirer.^"^ 

One writer, usually regarded' as of considerable accuracy, 
seeming to find difficulty in choosing between the definitions of a 
lease, states that a lease is "a contract for the possession of 
lands and tenements on the one side; and a recompense of rent 

1* The author of Bac. Abr. tit. civil law locatio conductio did not 

Leases, 433. This is usually attrib- create any rights in rem in the hirer 

uted to Chief Baron Gilbert. is clearly shown in Hunter's Roman 

"United States v. Gratiot, 14 Pet. Lnw (3d Ed.) at p. 506. 
(U. S.) 526, 10 Law Ed. 573; Thomas The civil law conception of a lease 

V. West Jersey R. Co., 101 U. S. 71, prevails in Louisiana and to some 

25Law. Ed. 950; Heywoodv. Fulmer, extent in Georgia. In the latter 

158 Ind. 658, 32 N. E. 574, 18 L. R. A. state a statute (Code 1895, § 3115) 

491; Sawyer v. Hanson, 24 Me. 542; provides that '"no estate passes out 

Pelton V. Minah Con. Min. Co., 11 of the landlord, and the tenant has 

Mont. 281, 28 Pac. 310; Paul v. Crag- only a usufruct * * * ; and all 

naz, 25 Nev. 293, 59 Pac. 857, 60 PaC. renting or leasing of such real estate 

983, 47 L. R. A. 540; Edwards v. for a period of time less than five 

Noel, 88 Mo. App. 434; Jackson v. years shall be held to convey only 

Harsen, 7 Cow. (N. Y.) 323, 17 Am. the right to possess and enjoy such 

Dec. 517; Dolittle v. Eddy, 7 Barb, real estate, * * * and to give 

(N. Y.) 74; Becker v. Becker, 13 App. only the usufruct, unless the contrary 

Div. 342, 43 N. Y. Supp. 17. be agreed upon." In Bentley v. At- 

10 See, as to the civil law con- lanta, 92 Ga. 623, 18 S. E. 1013, how- 
tract as distinguished from a modern ever, it is said that "a tenant, though 
lease, and its resemblance to the he has no estate in the land, is the 
early English conception of a lease, owner of its use for the term of his 
Hare, Contracts, 90, 92. See, also.^rent contract, and he can recover 
Pothier, Contract de Louage, § 3; damages for any injury to such use" 
Sandars' Justinian, 451. That the occasioned by a public nuisance. 



164 CREATION OF THE RELATION. §16 

or other income on the other. Or it is a conveyance of lands and 
tenements to a person for life, for years, or at will, in considera- 
tion of a return of rent, or other recompense. "^'^ And occasion- 
ally such an alternative definition has been asserted by the 
courts.^ 8 As we have undertaken to show, a lease is always a con- 
veyance, and such a definition is, it is conceived, not only ambig- 
uous, but likewise erroneous. 

One of the definitions which we have undertaken to criticise 
appears to assume that a consideration is necessary to the va- 
lidity of a lease, and we occasionally find judicial suggestions 
to the same effect. ^^^ ^^ So far as by the term "lease" we refer 
to a conveyance by way of lease, that is, a conveyance leaving 
a reversion in the grantor, it is perfectly valid without any con- 
sideration moving to the lessor. Even though any of the coir- 
tractual stipulations were invalid for lack of a consideration, this 
would not affect the lease so far as it is a conveyance creating 
a tenancy. A conveyance in fee simple is valid without any con- 
sideration, ^i and so must be a conveyance for a less period. In 
other words, one having an estate in land may make to another 
a gift of either his whole interest or of a part of his interest. 
Ordinarily the lessor does receive what would be a sufficient 
consideration to support a contract in the shape of the lessee's 
contract to pay rent, but that a lease is valid without any pro- 
vision for rent is well recognized.^^ 

" 4 Cruise's Dig. tit. 32, c. 5, §1. Real Prop. (6th Ed.) § 2272; Notes of 

18 Milliken v. Faulk, 111 Ala. 658, Coleridge and Christian, at p. 296 of 

20 So. 594; Lacey v. Neweomb, 95 Blackstone's Comm. criticizing the 

Iowa, 287, 63 :^. W. 704; Branch v. statement by that author to the con- 

Doane, 17 Conn. 402; Badger Lumber trary. See, also, cases to the above 

.Co. V. Malone, 8 Kan. App. 121, 54 effect cited 2 Tiffany, Real Prop. S 

Pac. 692; Jackson v. Harsen, 7 Cow. 384, note 145. 

(N. Y.) 323, 17 Am. Dec. 517. That a common-law conveyance 

19, 20 Gilpin V. Adams, 14 Colo. 512 ; was valid/ without consideration is 
White V. Walker, 31 111. 422 ; Mc- necessarily involved in the well rec- 
Farlane v. Williams, 107 111. £3; ^-ognized rule that, on a feoffment 
Mitchell V. Com., 37 Pa. 187; Visalia without consideration, a use result- 
Gas. & Elec. L. Co. V. Sims, 104 Gal. ed in favor of the feoffor. See Sug- 
326, 37 Pac. 1042, 43 Am. St. Rep. den's Gilbert on Uses, c. 1, §§ 5, 60; 
105. 1 Sanders, Uses and Trusts, 60; Per- 

21 See Preston, Abstracts of Title, kins, § 533. 

71; 1 Sanders, Uses & Trusts, 67; 22 See post, § 165. 
4 Kent's Comm. 462; 3 Washburn, 



§ 17 TENANCY "BY IMPLICATION." 165 

The word "demise" is not infrequently, especially in England, 
applied to the legal act by which the relation of landlord 
and tenant is created, that is, the conveyance of an estate less 
than that of the grantor. The use of this word, not having any 
reference to the covenants entered into by the parties thereto, is 
free from the ambiguity which unfortunately attends the use of 
the word "lease. "^s 

§ 17. Tenancy "by implication." 

Not infrequently reference is made to a tenancy "by implica- 
tion, " or it is said that the relation of landlord and tenant may 
be "implied." The courts and textbook writers, in using this 
language, are not entirely explicit, but they appear usually to 
mean that the relation may be created without the use of the 
language ordinarily regarded as most appropriate for the pur- 
pose. It is, for instance, said by an able writer that "an estate 
at will may, and frequently does, arise by implication, "^'t by 
which is meant, no doubt, that such an estate may be created by 
an entry under an informal oral permission, as before explained.^^ 
There is, however, no distinction in principle between such a 
case, and the case of a lease in express terms, using the words 
"lease" and "demise." Ordinarily a tenancy at will is created 
in this way, the- owner of the premises merely giving permission 
to another to take possession, and the latter taking possession 
accordingly. But the words "you may take possession of this 
property" are quite as effective as the words "I, A. B. hereby 
lease to you C. D., the premises, (describing them) to have and 
to hold at will. ' ' In either case there is a lease, either oral or in 
writing, as the case may be. The only distinction between the 
forms of expression is that in the former case there is no state- 

23 Coke (2 Inst. 483) uses demise to denote a partial transfer by way 
in the sense of a conveyance in fee °^ lease. 

, . . ., .„ ,,. Tjnfo,. In Snedecor v. Pope, 143 Ala. 275, 

simple, fee tail or for life. Refer- ■ , . , , „ 

, . ^ 39 So. 318, it is decided that the 
ring to this passage counsel in Green- j .,j • „ , ^ •, 

^ ^ word "demise" does not necessarily 

away V. Adams, 12 Ves. Jr. 397, said: . , -ij. ■ j. ^ mi. j. 

anaj v . .tiuo-iuo, i^ v ^. import a writtcu instrument. That 

" 'The strict technical import of the ^j^jg jg ^^ ^^^^^ unquestionable. 

word demise,' from the verb 'dimitto' 24 Smith, Landl. & Ten. (3d Ed.) 

is any transfer or conveyance, 2I. 

though by habit it is generally used 23 See ante, § 13 a (3). 



166 CREATION OF THE RELATION. | 17 

raent as to the nature of the tenancy, and this has to be supplied 
by the law, which determines that the taking of possession under 
such bare permission creates a tenancy at will. The relation of 
tenancy may even be created by a landowner's mere assent to 
the words used by another, as when he is asked if he is willing to 
lease on certain terms and he indicates his assent to the propo- 
sition, and possession is taken aeeordingly,^^ and he might in- 
dicate his assent for this purpose by acts instead of words. In 
such a case, however, there is a lease, and the use of the expres- 
sion "implication" in this connection can but obscure the real 
nature of the transaction. So in the frequent case of what is 
is known as an "attornment," that is, an acknowledgment by 
one in possession of land, by word or act, that he is tenant of 
another, there is in effect a lease to him by such other, though 
there may be, on the part of the latter, no word or act except 
the mere tacit acceptance of the acknowledgment.^'^ And when 
it is said, in connection with actions for use and occupation, that 
the relation of landlord and tenant must exist by "implied or 
express contract, "^^ it cannot be intended thereby to say that 
the law creates the relation under certain circumstances without 
reference to the intention of the parties, but the meaning pre- 
sumably is that a mere permissive possession, however the per- 
mission may be indicated, is ordinarily sufficient to justify re- 
covery in such an action. If one takes possession "under a con- 
tract for a lease" or "under a contract of sale," as it is usually 
expressed,29 his entry is actually by reason of a permission, stated 
in the contract, or otherwise indicated, and it seems improper to 
say that there is in such ease a tenancy ' ' by implication. ' ' And 
if one enters under a lease invalid for want of writing or of 
record, he becomes tenant because his entry is by permission, and 
he in reality enters under a lease, though not under the lease 
intended to be made.^" 

20 See e. g., Schwarze v. Mahoney, • 27 gee post, § 19 c. 

97 Cal. 131, 31 Pac. 908, where one 2s See e. g., Dudding v. Hill, 15 III. 

who asked the owner what rent she 61; Greenup v. Vernor, 16 111. 26; 

desired, and, on being told, expressed Chamberlain v. Donahue, 44 Vt. 57. 

a readiness to "take" the property, 29 See post, §§ 43 a, 65. 

and took possession, was held to be so See ante, § 13 a (3); post, § 

a tenant. 25 g. 



§ 17 TENANCY "BY IMPLICATION." 167 

In no case, it is conceived, does the law "imply" a tenancy 
when there is in fact no lease, that is, no permission by the owner 
to another to take or retain possession, manifested either by 
words or acts,*i though it occasionally says that one who is in 
by permission shall, under certain circumstances, be regarded 
as one class of tenant rather than another.^^ One who enters 
another's land without permission is a trespasser and not a 
tenant^s and the law will not "imply" that he is rightfully in 
possession for the purpose of imposing liability upon him as a 
tenant,^* even though he enters into negotiations for a lease.^^ 

Occasionally the expression "implication" or "implied" ie 
used with regard to the evidence necessary or sufficient to justify 
a finding of the existence of the relation of tenancy. Thus it has 
been said that, if the facts are such, in the estimation of the jury, 
as to exclude every other reasonable hypothesis, the law will 
imply that the relation of landlord and tenant exists.^* This 
seems to be merely the equivalent of a statement that the jury 
should find the existence of a tenancy if. this is the only reason- 
able hypothesis on the, evidence, and so when it is said that a 

31 See Bailey's Adm'r v. Campbell, part of the land by the removal of 

82 Ala. 342, 2 So. 646; Emerson v. the house thereon. It would rather 

Weeks, 58- Cal. 439; Littleton v. seem that by such removal of the 

Wynn, 31 Ga. 583; Hill v. Coal Val- house with him in it the lessee In 

ley Min. Co., 103 111. App. 41; Cum- effect licensed him to go on the land 

mings v. Smith", 114 111. App. 35; for the purpose of occupying the 

Knowles v. Hull, 99 MaSiS. 562; house, and that by remaining in the 

Emmons v. Scudder, 115 Mass. 367; house he acted under the license. It 

Twiss V. Boehmer, 39 Or. 359, 65 was as if he had been transported by 

Pac. 18; Moore v. Harvey, 50 Vt. 297; the lessee thereou in his vehicle. 

Wilcher v. Robertson, 78 Va. 602. There was no Intention on the part 

In Pardee v. Gray, 66 Cal. 524, 6 of the lessee to give possession of any 

Pac. 389, it was held that one who, part of the premises or to create a 

having refused to leave A's house, tenancy, and there was not, so far 

was moved by A, vath the house, on as appears, any intention on the part 

land leased to A, was "put in pos- of the person in the house to take 

session" of a portion of such land, possession as tenant, 

and was consequently liable to ex- 32 See ante, §§ 13 a (3), 14 b (2). 

pulsion by summary proceedings ^3 See ante, § 6. 

commenced by A's lessor, as being 34 See post, § 302. 

an undertenant. It might, it seems »s See post, § 19d, at notes 105-107, 

be questioned whether the person in § 302, at note 32. 

the house was "put in possession" of se Rainey v. Capps, 22 Ala. 288. 



168 CREATION OF THE RELATION. § Ig 

tenancy may be "implied" from the payment of rent,^^ it is 
usually meant that its existence may be inferred from such pay- 
ment. 

§ 18. Evidence of creation of the relation. 

The question whether the relation of landlord and tenant has 
been created is one of fact for the jury subject to the instructions 
of the eourt,38 arid even though the construction of a written 
instrument as being a lease vel non is involved, a question which 
is plainly for the eourt,^^ and the court decides it to be a lease, 
the question whether the relation of tenancy actually exists is, 
it seems, still for the jury as being dependent on whether pos- 
session has been taken and held under the lease.*'* 

The only class of evidence bearing upon the existence, or which 
is the same thing, the creation, of the relation, particularly re- 
s' Strahan v. Smith, 4 Bing. 01; of the borough which owned the 
Cunningham v. Holton, 55 Me. 33; land, an oflScer of the association hav- 
Weinhauer v. Eastern Brew. Co., 85 ing been present when the resolution 
N. Y. Supp. 354. See post, § 18. was passed. Where all the facts on 

38Swanner v. Swanner, 50 Ala. 66; which the allegation of a tenancy is 
McDowell V. Hyman, 117 Cal. 67, 48 based are admitted, the court may 
Pac. 984; Cunningham v. Cambridge determine whether a tenancy exists. 
Sav. Bank, 138 Mass. 480; Duncan Howard v. Carpenter, 22 Md. 10. 
V. Beard, 2 Nott & McC. (S. C.) 400; 39 See Ferris v. Hoglan, 121 Ala. 
Doe d. Heam V. Gray, 2 Houst. (Del.) 240, 25 So. 834; State v. Paige, 1 
135; Jackson v. Vosburgh, 7 Johns Speer Law (S. C.) 408, 40 Am. Dec. 
(N. Y.) 186; McKenzie v. Sykes, 47 608; McCutchen v. Crenshaw, 40 S. 
Mich. 294, 11 N. W. 164; Chamberlin C. 511, 19 S. E. 140; Stadden v. Haz- 
V. Donahue, 44 Vt. 57. So the ques- zard, 34 Mich. 76; Nightingale v. 
tion whether a tenancy was for a Barens, 47 Wis. 389, 2 N. W. 767. 
year or from month to month was In Lamson v. Moffat, 61 Wis. 153, 21 
decided to be for the jury. Pusheck N. W. 62, it was decided that though 
V. Frances E. Willard N. T. H. Ass'n, an instrument was on its face a lease, 
94 111. App. 192. the jury could find on the evidence 

In Borough of Phoenixville v. Wal- that it was intended merely as a 
ters, 147 Pa. 501, 23 Atl. 776, it was mortgage on the crops, in accord- 
regarded as a question for the jury ance with the general rule that an 
whether the possession of land by absolute conveyance may be shown 
an association was that of a tenant to be a mortgage, 
from year to year, as having con- ■"> Caldwell v. Center, 30 Cal. 539, 
tinned to pay rent after the expira- 89 Am. Dec. 131. As to the necessity^ 
tion of its original lease, or was of entry under the lease to create the 
under a renewal thereof, in accord- relation of tenancy, see post, § 37. 
ance with a resolution of the council 



§ 18 EVIDENCE. 169 

ferred to by the cases, is that of the payment of rent, it being 
said that such payment by one in possession is evidence of the 
relation,*! and the same has been said of a promise to pay rent.*^ 
It may happen, however, that the payment of rent does not shovi^ 
that the payor is a tenant of the payee,*"" as when he is paying 
it on account of another,** and even when the payment is by a 
person in possession, he may be a subtenant paying the rent on 
account of the original tenant,** or a person on the premises mak- 
ing the payment may be doing so as the agent or servant of 
the tenant.*^ Or he may even be doing so without the existence 
of any legal relation or privity between him and one claiming 
under the lease.*^ Likewise, the fact that the defendant in a 
summary proceeding pays the rental value of the premises in 
order to secure an appeal does not show him to be a tenant right- 
fully in possession.*^ And it has been held that the fact that one 
in possession made a single payment, as for rent, to an adverse 
claimant of the land, in order to obtain a temporary immunity 
from suit, did not preclude her from denying the existence of a 

41 Doe d. Hearn v. Gray, 2 Houst. of the owner. Sanborn v. First Nat. 
(Del.) 135; Doe d. Barrett v. Jefler- Bank, 9 Colo. App. 245, 47 Pac. 660. 
son, 5 Houst. (Del.) 477; Voigt v. ^^ See post, § 177 e. 

Resor, 80 111. 331; Morris v. « in Joslin v. Ervien, 50 N. J. Law, 

Niles, 12 Abb. Pr. (N. Y.) 103; Cres- 39, 12 Atl. 136, it was held that evl- 

sler V. Williams, 80 Ind. 366; Vir- dence that a person on the premises 

glnia Min. & Imp. Co. v. Hoover, 82 paid the first instalment of rent by 

Va. 449, 4 S. E. 689. his own check, that he demanded 

42 Kelly v. Byster, 102 Ala. 325, rents of sublessees, and gave receipts 
14 So. 657. in Iiis own name, was sufBcient to 

42a See Sanford v. Herron, 161 Mo. support a finding that he was himself 
176, 61 S. W. 839, 84 Am. St. Rep. tenant and not merely the agent of 



703. 



another. 



43 "The rent must be paid in the '' ^°^ ^- Hull v. V/ood, 14 Mees. & 
capacity of tenant." Strahan v. W- 682. There the widow of the 
Smith, 4 Bing. 91. In that case the ^^^^^^ "^^^^ ^he rent to the lessor, 



pledgee of pictures took a lease of a 
room in which to place them, and 
the pledgor paid the rent in order to 



and this was held not to show that 
she was tenant under the lessee's 
administrator, or under the lessor, 
but that knowing that she had no 

get them back. ^^^^ ^j^^ merely retained possession, 

A promise to pay an annual sum avoiding expulsion by the admlnis- 

to the owner of land in order to in- trator by such payment of the rent. 

duce him to make a lease to another 47 Hopkins v. Holland, 84 Md. 84, 

•does not make the promisor a tenant 35 Atl. 11. 



170 CREATION OP THE RELATION. § Ig 

tenancy.** Furthermore, one in possession paying rent may be 
paying it, not as tenant of the payee, but as holding under a con- 
veyance in fee reserving rent,*^ or under an assignment to him, 
as distinguished from a sublease, reserving rent.^" Ordinarily, 
however, if one pays to another certain sums as and for rent of 
particular land, of which the payor is in possession, this is prima 
facie evidence of the existence of the relation of landlord and 
tenant, as showing an attornment by the person in possession, as 
will be explained in the next section. 

The existence of the relation of landlord and tenant may be 
shown, as against one of the parties, by an admission by him, or 
by acts equivalent to an admission. So it has been decided that, 
by bringing an action for use and occupation, one admits the ex- 
istence of a tenancy .^1 But the service of a notice to quit has 
been held not to involve such an admission, when it was served 
simultaneously with a declaration and notice in ejectment.'^ 

A landlord is not precluded, it has been decided, from showing 
that a certain person is his tenant, as regards particular prem- 
ises, by the fact that he has procured the issue of a liquor license 
to another person.^^ 

That an agent uses his own property to some extent for the 

48 Hudson V. White, 17 R. I. 519, 23 ants, and the payment of rent by 

Atl. 57. such persons throughout that time 

A payment made to secure immun- to the person under whom the entry 

ity from suit, not as for rent, evt- was made and to his descendants, 

dently does not show the existence accompanied by the making of im- 

of the relation of tenancy. See Myer provements, has been lield to raise 

V. Roberts, 50 Or. 81, 89 Pac. 1051. a presumption of a "lease in fee," 

^9 See ante, § 11 a. or of an agreement for such a lease. 

The payment of rent to a certain Ham -v. Schuyler, 4 Johns. Ch. (N. 

man and his heirs or devisee for y.) 1. 

over twenty years by one having a so See post, § 151. 

fee simple estate in land has been 51 Powers v. Ingraham, 3 Barb. ^N 

held to show prima facie that tho y.) 576; Cunningham v. Holton, 55 

person to whom rent is so paid has Mg 33^ 57 ]y[g_ 42O. 

title to the rent. Steward v. Bridg- 52 Powers v. Ingraham, 3 Barb. 

er, 2 Vern. 516; McElroy v. Railroad, (n. Y.) 576. 

7 Pa. 536. And the continuous occu- 53 s. Liebmann's Sons Brew. Co. v. 

pation of land for eighty years, by De Nicolo, 46 Misc. 268, 91 N. T 

one whose original entry thereon Supp. 791. 
was permissive and by his descend- 



§ 18 EVIDENCE. 171 

transaction of Ms principal's business does not show that' the 
latter is his tenant as regards such property.^* 

It is said that ' ' a tenancy once created is presumed to con- 
tinue so long as the tenant remains in possession. ' '^b This, how- 
ever, is not, properly speaking, a matter of presumption or of evi- 
dence, but is, it seems, merely another mode of stating that one 
who enters as tenant is precluded, so long as he continues in pos- 
session, from asserting title in himself or in another.^* There is 
not, it is conceived, any presumption of the continuance of the 
tenancy as against the landlord. 

It has been said that the relation will not be inferred from occu- 
pation, if the relative position of the parties to each other can, 
under the circumstances of the case, be referred to any other dis- 
tinct cause.'^ This appears to mean merely that if one is shown 
to be in possession in another capacity, there is no room for an 
inference that he is in possession as tenant, and so, if one is in 
possession as trustee, he is not in possession as tenant ;^^ and if he 
is in possession as agent, acts on his part within his authority 
will not be regarded as the acts of a tenant.^^ 

The fact that a written instrument contains the word "lease"*** 
or "term"*i does not conclusively show it to be a lease, but its 
construction in this respect is to be determined by a considera- 
tion of the whole instrument. In numerous decisions the courts 

5* Pittsburgh, C. & St. L. R. Co. v, plus being paid to the other party, 

Thornburgh, 98 Ind. 201. the owner, and no time was fixed for 

55 Wheelock v. Warschauer, 21 Cal. the termination of any possessory 
309; Milsap v. Stone, 2 Colo. 137; interest, no rent was named to be 
Longfellow v. Longfellow, 54 Me. paid, and there was no provision fot 
240; Hill v. Goolsby, 41 Ga. 289. sharing in the crop. There was held 

56 See post § 78. to be a mer& contract of employment. 

57 Hardin v. Pulley, 79 Ala. 381. ei State v. Page, 1 Speer Law (S. 

58 Russell V. Brwin's Adm'r, 38 C.) 408, 40 Am. Dec. e08. Here there 
Ala. 44 ; Hardin v. Pulley, 79 Ala. 381. was an agreement with one to take 

50 Paige V. Akins, 112 Cal, 401, 44 charge of a hotel as manager for a 

Pac. 666. term of years, compensation to him 

60 Ferris v. Hoglan, 121 Ala. 240, to be fixed by profits, and his book.s 

25 So. 834. In this case the word to be open to inspection by the own- 

"lease" was used, but the agreement ers. This was held not to be a lease, 

was that one party was to cultivate The court of appeals in equity, how- 

the land and gather and market the ever, seems to have viewed the agree- 

crop, and was to receive his com- ment differently in this respect. See 

pensation from the proceeds, the sur- Page v. Street, Speer Eq. (S. C.) 159. 



172 CREATION OF THE RELATION. §19 

have considered the question whether, in the particular case, 
the instrument in question involved a lease or merely a contract 
for the cultivation of land ' ' on shares, ' ' and the use of the word 
"lease" has never been regarded as conelusive.^^ 

If an instrument in terms undertakes to create the relation of 
tenancy, it cannot be shown by oral evidence that the transaction 
was actually a sale.®^ 

§ 19. Attornment. ' 

a. Double meaning of term. The expression "attornment" 
is used in two senses. At common law it was necessary, upon a 
transfer of a seignory, or of a reversion upon an estate for life 
or years, that the tenant should "attorn" to the transferee, before 
the latter could be regarded as the landlord and entitled to 
assert rights as such against the tenant.^* The act of attorning, 
the "attornment," consisted merely of the tenant's recognition 
of such transferee as his landlord.^^ This- requirement of at- 
tornment was dispensed with by St. 4 Anne, c. 16, § 9. And 
this statute, or the policy embodied therein, has been generally 
adopted in this country .^^ We have, therefore, at the present 
day, but little occasion to employ the word "attornment" as 
signifying the tenant's acknowledgment of the transferee of 
the reversion as his landlord. 

The word "attornment" is also frequently used, in another 
sense, to describe the acknowledgment, by one previously in pos- 
session of land, that he is tenant to another, when there has 
been no transfer of any reversion to the latter, and the ex- 

02 See post, § 20. most common attornment is to say, 

03 Smith V. Caldwell, 78 Ark. 333, Sir, I attorn to you by force of the 
S5 S. W. 467. said grant, or I become your tenant, 

e* Litt. §§ 551-591, and Coke's Com- etc., or to deliver to the grantee a 

mentary thereon; Sheppard's Touch- penny or a half-penny or a farthing 

stone, c. 13. by way of attornment." Litt. § 551. 

85 "Attornment is no other in ef- Lord Coke adds : "Any other words 

feet, but when the tenant bath heard which import an agreement or assent 

of the grant made by his lord, that to the grant do amount to an attorn- 

the same tenant do agree by word ment." And payment of any part of 

to the said grant, as to say to the the rent or service to the grantee was 

grantee, I agree to the grant made a suflScient attornment. Sheppard's 

to you, etc., or I am well content Touchstone, p. 261. 
with the grant made to you; but the oe See post, § 146 f. 



§ 19 ATTORNMENT. ^ > ' ■{ji 

pression is thus used whether the person making the acknowledg- 
ment, or, which is the same thing, agreeing to hold under an- 
other, is himself the rightful owner of the land, or is a trespasser 
or disseisor, or is in possession as tenant of some person other 
than the one whom he thus accepts as landlord. Attornments 
of this character are the subject of our present discussion. 

b. Attornment by tenant to stranger — (1) Is usually in- 
valid. The expression ' ' attornment ' ' is perhaps most frequently- 
used in reference to one already in possession as tenant of an- 
other, and it is generally recognized that one so in possession 
as another's tenant cannot voluntarily attorn, to the detriment 
of his landlord, to an adverse claimant of the land. Such an 
attornment was the subject of the statute 11 Geo. 2, c. 19, § 11, 
which, after reciting that "whereas the possession of estates in 
lands, tenements, and hereditaments is rendered very precarious 
by the frequent and frfiiidulent practice of tenants, in attorning 
to strangers, who claim title to the estates of their respective 
landlord or landlords, lessor or lessors, who by that means are 
turned out of possession of their respective estates, and put to 
the difficulty and expense of recovering the possession thereof by 
actions or suits at law," prescribed that every such attornment 
of any tenant or tenants should be absolutely null and void, and 
'"t the possession of their respective landlords or lessors should 
not be deemed to be in any wise altered or affected thereby "pro- 
vided always that nothing herein contained shall extend to 
vacate or affect any attornment made pursuant to and in con- 
sequence of some judgment at law, or decree or order of a court 
of equity, or made with the privity and consent of the landlord or 
landlords, lessor or lessors, or to any mortgagee after the mort- 
gage is become forfeited. ' ' This provision has been substantially 
re-enacted in a number of the states of this country,*^ occasionally 
with changes of phraseology as to the exceptional cases in which 
an attornment to a stranger will be upheld. - -.^ > 

BT California Civ. Code, § 1948; Jersey Gen. St. p. 1921, § 26; New 

Delaware Rev. Code 1893, p. 867; York Real Prop. Law, § 194; OJclOr 

Burns' Ann. St. Indiana 1901, § 7097; homa St. 1903, see 3333; South 

Iowa Code 1897, § 2990; Kansas Gen. Carolina Civ. Code, § 2413; Virginia 

St. 1905, § 4064; KentucTcy St. 1903, Code 1904, § 2784; Weist Virginia 

§ 2298; Mississippi Code 1906, § 2837; Code 1906, § 3397; Wisconsin St. 

Missouri Rev. St. 1899, § 4112; Mon- 1898, § 2182. 
tana Rev. Codes 1907, § 5233; 2 Nevi 



174 CREATION OF THE RELATION. § 19 

The exact meaning and purpose of the provision above quoted 
is not entirely clear, and the same obscurity v^ould seem to attend 
its American counterparts. Prom the recitals in the English act 
one might be led to infer that, by the law as it previously existed, 
a tenant could always, by attorning to a stranger, in effect 
disseise his landlord, but, as a matter of fact, the common-law 
rule is clearly stated by writers of authority to have been other- 
wise, the attornment to a stranger being effective as against the 
landlord in one case only, which could have occurred but sel- 
dom.^s 

The doctrine, embodied in the English statute referred to, and 
in its American counterparts, that a tenant cannot make an 
attornment to an adverse claimant, to the prejudice of his own 
landlord, has been applied in a number of connections, usually 
without specific reference to any statute on the subject. For 
instance, the stranger to whom such an attornment is made 
acquires thereby no rights to the land as against the landlord,*^ 
nor as against third persons,'''" nor does the attornment give 
such stranger adverse possession as against the landlord, capable 
of ripening into title by lapse of the statutory period of limita- 
tion.'^i So an attornment to a stranger does not affect the run- 
es If a lord was disseised of the Dana) 426, 32 Am. Dec. 78 ; Breeding's 
demesne lands of the manor, an at- Heirs v. Taylor's Heirs, 52 Ky. (13 
tornment to the disseisor by the ten- B. Mon.) 477; State v. Howell, 107 N. 
ants of the other lands of the manor C. 835, 12 S. E. 569 ; Clampitt v. Kel- 
put the disseisor Into possession of ley, 62 Mo. 571. So where the ten- 
the rents and other services due by ant accepted a lease from a stranger, 
the tenants. But in other cases the see Parker v. Nanson, 12 Neb. 419, 
attornment of a tenant to a stranger 11 N. W. 865. A grantee is not 
was simply nugatory. Litt. §§ 587, ousted, so as to have a right of ac- 
589; Co. Litt. 323. So it is said in tion on a covenant in his deed, by 
Gilbert on Tenures, p. 104: "Though the attornment of his tenant to a 
my tenant should attorn to some- third person who had no title, 
body else, that would not put me out Bailey v. Moore, 21 111. 165. 
of possession of my reversion, be- to Perkins v. Potts, 52 Neb. 110, 71 
cause, the right being in me, it N. W. 1017. 

could not be transferred to any body 7i Doe d. Hooper v. Clayton, 8 Ala. 
else, but by some act of my own; 391, 2 So. 24; Dausch v. Crane, 109 
and the payment of my tenant is but Mo. 323, 19 S. W. 61; Camden Orphan 
a wrongful payment, and doth not Soc. v. Lockhart, 2 McMuI. Law (S. 
give him my right." C.) 84; Fowler v. Simpson, 79 Tex. 

69 United States v. Sliney, 21 Fed. 611, 15 S. W. 682, 23 Am. St. Rep. 
894; Chambers v. Pleak, 36 Ky. (6 370. 



§ 19 ATTORNMENT. I75 

ning of the statute of limitations in favor of the landlord as 
against a third person claiming the property'^^ and it does not, 
it has been decided, give possession to the person to vi^hom it is 
made for the purpose of avoiding the statute invalidating a con- 
veyance by one out of possession.^s Such an attornment 'does not 
affect the possession of the tenant as being that of his original 
landlord, so as to preclude an action by the latter to quiet title, 
under the statute authorizing such action by one in possession 
"by himself or tenant,"^* though it has been held to give to 
the person to whom it is made possession sufficient for the pur- 
pose of such an action.^s ^q attornment to a third person by 
one in possession under a lease from one having no title has, 
however, been regarded as giving to the latter the benefit of the 
attornor's labor for the purpose of procuring a title from the 
state J* 

(2) Cases excepted in the statutes. The statute 11 Geo. 2, 
c. 19, § 11, above referred to, as well as its American counterparts, 
names certain circumstances under which an attornment by the 
tenant to a stranger shall be valid. These exceptions to the 
general rule, as named in the statutes, have been the occasion 
of but little judicial disciission, and it is difficult to form clear 
opinions as to their exact scope and effect. 

The case of an attornment made in pursuance of a judgment 
or decree is excepted in all the statutes, and the result is, that 
if the owner of a paramount title obtains a judgment or decree 
establishing his right as regards the ],and, the tenant may there- 
upon consent to hold under him and so retain possession. In 
a number of jurisdictions, even apart from any statutory pro- 
vision, a tenant may attorn to one who has recovered a judg- 
ment for possession against him.''''' ''* 

T2 Elliott v. Dycke, 78 Ala. 150; ble v. Lake Superior & Puget Sound 

Rankin v. Tenbrook, 5 Watts (Pa.) Co., 99 Minn. 11, 108 N. W. 867. 

386. Testate v. Hicks, 53 Ark. 238, 13 

"Turner v. Thomas, 76 Ky. (13 S. W. 704. 

Bush) 518. ", 7sSee post, § 78 p (2), at note 

74 Smith V. Cooper, 38 Kan. 446, 16 545. 

Pac. 958; Blanchard v. Tyler, 12 In Doe d. Kennedy's Heirs v. Rey- 

Mich. 339, 86 Am. Dec. 57. nolds, 27 Ala. 364, it was decided 

76 State V. Griftner, 61 Ohio St. 201, that he cannot attorn to the judg- 

55 N. E. 612; SheafE v. Husted, 60 ment plaintiff after the judgment 

Kan. 770, 57 Pac. 976. But see Trim- has become void, as by the expiration 



176 CREATION OF THE RELATION. § 19 

Another exception, named in various statutes, to the rule 
that a tenant cannot attorn to a third person, is when such 
attornment is with the consent of the landlord. Ordinarily, 
it is evident, a landlord will not give such consent, and we find 
but one case in which this exception was applied,''^ it being there 
held that if a landlord consented that his tenant attorn to one 
whom the landlord expected to purchase his reversion, he could 
not thereafter recover in ejectment against the tenant, or against 
the person to whom the tenant attorned. 

Another exception, named in the English statute and in some 
of those enacted in this country ,8" is the attornment "to any mort- 
gagee after the mortgage is become forfeited." This can refer, 
in jurisdictions where a mortgage passes the legal title, only 
to a mortgage prior to the lease, since a mortgage subsequent 
thereto constitutes merely a transfer of the reversion, and an 
attornment to the subsequent mortgagee is not to a stranger.^i 
As regards an attornment_to a prior mortgagee, the rule in such 
jurisdictions, generally now recognized, is broa der than the ex- 
ception in the statute, and the tenant of the jior t g a gqr is re 
garded as -fin-titied Jtp_ attorn_jt.Q. the moxtgagee before as well as 
after a forfeiture under the mortgage TIEOP,, %._demand by the 
mortgagee for rentj)r_for_jgossession.82 Jq jurisdictions, on the 
other hand, in which the legal title does not pass under a mort- 
gage, an attornment to a mortgagee could, apart from the stat- 
ute, be valid only when he has purchased at the sale under the 
mortgage and so procured the legal title.^^" The application, 
in such jurisdictions, of this exception in the statute, might have 
the effect, apparently, of enabling the mortgagee, by collusion 
with the mortgagor's tenant, to obtain the rent which would 
otherwise be paid to the mortgagor, although he has, as against 
the latter, no legal title to the land nor any right of possession. 

In ]\Iissouri the English statute has been amended by adding 
to the excepted cases in which the tenant's attornment to a 
third person is lawful that of his attornment to one who pur- 

of the fictitious demise laid in the 2 New Jersey Gen. St. p. 1920, § 26; 

declaration. New York Real Prop. Law, § 194. 

79 Jackson v. Brush, 20 Johns. (N. si See post, § 146 e. 
Y.) 5. X2~See post, § 73 a (3). 

'^Missouri Rev. St. 1899, § 4112; S2a See post, at note 85. 



§ 19 ATTORNMENT. 177 

chases pursuant to a sale "under a deed of trust, "®^ and this has 
been regarded as justifying an attornment by a tenant to one 
who purchases a paramount title under such a deed, and as 
enabling him to set up such attornment as against his own land- 
lord.84 

Even apart from statute, by some decisions, a tenant would 
have the right to attorn to a purchaser of a paramount title, upon 
the assertion of such title, irrespective of whether he purchased 
at voluntary or forced sale.^^ In two jurisdictions the statute 
forbidding an attornment by a tenant to a stranger excepts the 
ease likewise of an attornment to a purchaser at judicial sale.^* 
And in regard thereto the same may be said, that, even apart 
from statute, if the purchaser at such sale asserts his rights as 
against the tenant, the latter, by some decisions, might attorn 
to him instead of relinquishing possession, or driving him to an 
action of ejectment.®'' 

The statutes forbidding attornment to strangers do not, from 
their very terms, apply to an attornment to a transferee of the 
reversion,*^ though such an attornment is, as before stated, 
ordinarily, at the present day, unnecessary, and to that extent 
nugatory. 

(3) Attornment under compulsion. While it has been as- 
serted or decided in a considerable number of cases that an at- 
tornment to a stranger by a tenant under a lease is absolutely 
invalid as against the landlord, even though such stranger has 
title paramount to that of the landlord,®" there are a number of 

S3 Rev. St. 1899, I 4112. to the lease is said not to be an at- 

8i Freeman v. Moffit, 119 Mo. 280, 25 tornment to a "stranger" -within the 

S. W. 87. And see Holden Bldg. & statute, the court saying that it is 

Loan Ass'n v. Wann, 43 Mo. App. 640. in principle the same as an attorn- 

85 See post, §§ 73 a (3), 78 p. (2), ment to a transferee of the land- 

186 a (2). lord. That it is not the same ap- 
se Iowa Code 1897, § 2990; Wis., St. pears to be beyond question. See 

1898, § 2182 (Attornment permissible post, § 78 n (3). 

if made to a purchaser at judicial so Doe d. Kennedy v. Reynolds, 27 

sale acquiring title by a conveyance Ala. 364; Rogers v. Boynton, 57 Ala. 

after expiration of redemption per- 501; Simmons v. Robertson, 27 Ark. 

jo^) 50; Thompson v. Pioche, 44 Cal. 508; 

87 See references ante, note 85. Broxton v. Bnnis, 96 Ga. 792, 22 S. 

88 Tn Teich v. Arms, 5 Cal. App. B. 945 (semble) ; Mason v. Bascom, 
•175, 90 Pac. 962, an attornment to a 42 Ky. (3 B. Mon.) 26,9; Parker v. 
purchaser at a sale for taxes prior Nanson, 12 Neb. 419, 11 N. W. 865; 

L. and Ten. 12. 



178 CREATION OF THE RELATION. § 19 

decisions to the effect that such an attornment to the person 
having paramount title, if made under compulsion, in order to 
avoid eviction by the latter, is in legal effect an eviction, and 
consequently may be asserted by the tenant so attorning. These 
decisions will be hereafter referred to.®° 

(4) Validity as against tenant. By some decisions, if one 
already in possession as tenant of one person accepts a lease from, 
or agrees to hold as tenant of, another person, he becomes liable 
to the latter as well as to his former landlord for rent or in use 
and oceupation,^! and on the same theory, in an action against 
him by either to recover possession, he is precluded from deny- 
ing the plaintiff's title.^^ go in England it has been explicitly 
decided that one in possession of land can in succession attorn 
to two different persons, so as to give to each of them a right 
of distress.^3 By other decisions, however, one already in pos- 
session as tenant of another, who attorns to a third person, has 
been regarded as not bound by the attornment, so as to be pre- 
cluded from asserting that he is not a tenant of the latter, the 
theory being that an attornment to a third person is void, not 
only for the purpose of affecting the former landlord injuriously, 
but also for the purpose of imposing liability on the part of the 
tenant towards such third person.** 

Mosher v. Cole, 50 Neb. 636, 70 N. W. ance of a second lease ceases upou 

276; Jackson v. Harper, 5 Wend. (N. the termination of the tenancy there- 

Y.) 246; Dem d. Belfour v. Davis, by created. Hodges v. Waters, 124 

20 N. C. (3 Dev. & B. Law) 443; Ga. 229, 52 S. E. 161, 1 L. R. A. (N. 
Love V. Dennis, Harp. Law (S. C.) &.) 1181. 

70; McCardell v. Williams, 19 R. I. saVoss v. King, 33 W. Va. 236, 10 

701; Hammond v. Dean, 67 Tenn. (8 s. E. 402; Petterson v. Sweet, 13 111. 

Baxt.) 193; Pence v. Williams, 14 App. 255; Carter v. Marshall, 72 111. 

Ind. App. 86; Stover v. Davis, 57 W. 609; Cox v. Cunningham, 77 111. 545. 

Va. 196, 49 S. E. 1023; Delaney v. jf the second lessor should obtain 

Fox, 2 C. B. (N. S.) 768. possession by action against the ten- 

00 See post, §§ 73 a, 78 p (2), 186 ant, such lessor as having obtained 

^ (2). possession from the tenant would 

91 Lyon V. Washburn, 3 Colo. 201 ; like him, be precluded from denying 

Den d. Freeman v. Heath, 35 N. C. the title of the original landlord. 

(13 Ired. Law) 498; Bailey v. Moore, Ballance v. Fortier, 8 111. (3 Gilm.) 

21 111. 165; Hamilton v. Pittock, 158 291; Cox v. Cunningham, 77 111. 545. 
Pa. 457, 27 Atl. 1079; Pomeroy v. 93 Ex parte Punnett, 16 Ch. Div. 
Dennison, 13 U. C. Q. B. 283. But 226. 

his liability ty reason of his accep'; 94 Norton v. Sanders, 30 Ky. (7 J. 



§ 19 ATTORNMENT. I79 

It is submitted that, of these two diverse views, the former 
is the sounder on principle. The statutes forbidding an attorn- 
ment to a stranger, as appears from the recitals in the English 
statute on which the others are foundied, were intended merely 
to protect the landlord, and, apart from the statutes, there is no 
reason whatever for protect-iiig, from the consequences of his 
own folly or lack of good faith, a tenant who, having procured 
possession, or a right to continue in possession, by acknowledg- 
ment of one person as landlord, chooses thereafter to acknowledge 
another person as his landlord without having received satis- 
factory proof of the latter 's title. That an attornment by a ten- 
ant to a stranger is not intrinsically invalid appears both from 
the exceptions in the statutes and also from the cases recognizing 
as valid an attornment to one having paramount title, and the 
only reason for holding it invalid in any case is, it would seem, 
that injury to the landlord may be prevented. So far as re- 
gards the tenant's double liability for rent in such ease, it seems 
reasonably clear that one should not be relieved from his con- 
tract to pay rent to one person because he has made a like con- 
tract with another. 

It has been decided that if a tenant under a lease attorns to 
a third person, and subsequently surrenders his leasehold and 
relinquishes possession to his lessor, who is ignorant of such at- 
tornment, the latter does not, by accepting such surrender, become 
a successor of his lessee as tenant under the person to whom the 
attornment was made.®^ 

c. Attornment equivalent to acceptance of lease. An at- 
tornment by one in possession to a person with whom he is other- 
wise in no privity is, it is conceived, in legal effect, merely the 
acceptance of a lease from the latter. As one who obtains legal 
exclusive possession of land by permission of another, for a 

J. Marsh.) 12; Payne v. Vandever, it was decided that where a tenant 

56 Ky. (17 B. Mon.) 14; Cook v. Far- of A took a lease from B and sur- 

rah, 105 Mo. 492, 16 S. W. 692; How- rendered possession at the end of his 

ard V. Terry, 36 Tenn. (4 Sneed) term to A, B could not claim that 

419; Byrne v. Beeson, 1 Doug. A was his tenant and so liable to 

(Mich.) 179; Donnelly v. O'Day, summary proceedings, since the sec- 

1 Misc. 165, 20 N. Y. Supp. 688. ond lease was void as an attornment. 

In Freeman v. Ogden, 40 N. Y. 105, ss Freeman v. Ogden, 40 N. Y. 105. 



180 CREATION OP THE RELATION. § ig 

limited period only, becomes such other's tenant, so one already 
in possession who retains possession by permission of such other 
becomes his tenant. In either case there is a demise of the land 
if the one person thereafter holds the land "under" the other, 
that is, by force of his acknowledgment that he is tenant of the 
other, and it is entirely immaterial that words of leasing are not 
used, the demand for or acceptance of the acknowledgment being 
in effect a giving of permission to occupy, sufficient at least to 
create a tenancy at will. Even in the ease of a formal lease to 
a person already in possession in his own right or under a person 
other than the lessor, the lessee may properly, it is conceived, be 
regarded, by his acceptance of the lease, as making an attorn- 
ment to the lessor. 

Such being the nature of an attornment to a stranger by one 
in possession, it seems obvious that an attornment, by one who 
is in possession as tenant of one person, to another person having 
paramount title, cannot properly be regarded as involving a con- 
tinuance of the same holding with merely a change of landlord. 
The new landlord is, before the attornment, an absolute stranger 
to the old tenancy, and the attornment cannot make him in any 
way a party thereto. The terms of the old tenancy may no doubt 
be incorporated, expressly or by inference, in the new demise 
involved in the attornment, but even so there is a new demise and 
necessarily, therefore, a new tenancy. This has been clearly 
recognized in the later English cases with reference to an attorn- 
ment to a mortgagee by a tenant holding under a lease subse- 
quent to the mortgage, it being held that in such case there is a 
new tenancy, which may be or may not be upon the same terms 
as the tenancy under the lease from the mortgagor.^^ ^n,j in 
one case, apparently, the effect of an attornment to a paramount 
title other than that of a mortgagee, as creating a new tenancy, 
seems to have been fully reeognized.^'^ In some cases, however, 
in connection with the stamp acts, the English courts made some 
most refined distinctions between what they called an "attorn- 
ment," consisting of a mere acknowledgment by the person in 
possession that he was holding as tenant of the paramount claim- 
a,nt, either upon terms similar to those on which he had been prev- 

B6 See post, § 73 a (4). st Doe d. Chawner v. Boulter, 6 

Adol. & E. 675. 



§ 19 ATTORNMENT. 181 

iously holding or without any statement of terms, and "an agree- 
ment" to hold on terms different, or possibly different, from 
those on which he had previously held.^^ These cases involved, 
however, merely the question whether the paper evidencing such 
an arrangement was an "agreement" within the meaning of the 
statute requiring stamps upon all "agreements," and they re- 
garded an agreement to hold upon the same terms as before as 
merely an attornment, and so not within the requirement, ap- 
parently for the reason that such was the nature of an attornment 
at common law, ignoring the lack of analogy between such an 
acknowledgment of a holding under the transferee of the re- 
version, to which the term was formerly applied, and this modern 
use of the term as applied to an acknowledgment of a holding 
under a stranger. 

la New York, on the authority of these English cases, it was 
decided that a tenant who attorned to the claimant of a para- 
mount title continued, by reason of the attornment, to hold under 
the old tenancy, with merely a change of landlord, as if the 
reversion had been transferred to such claimant.^^ The English 
cases do not, it is submitted, assert any such a view. 

There are decisions to the effect that an agreement by one in 
possession to hold under another who has no title and to pay 
rent to him is invalid for lack of consideration.^"" But this view 

»8 Cornish v. Searell, 8 Barn. & C. such case be presumed to be upon 
471; Doe d. Linsey v. Edwards, 5 the same terms as those recited in 
Adol. & E. 95, 103; Doe d. "Wright v. the lease. 

Smith, 8 Adol. & E. 255; Doe d. loo Crlm v. Nelms, 78 Ala. 604; 
Frankfs v. Frankis, 11 Adol. & E. Fuller v. Sweet, 30 Mich. 237, IS Am. 
792. Rep. 122; Compau v. Lafferty, 43 

09 Austin V. Aheame, 61 N. Y. 6. Mich. 429, 5 N. W. 648; Sage v. Hal- 
In the case of Winestine t. Zig- verson, 72 Minn. 229, 75 N. W. 229; 
latzlu-Marks Co., 77 Conn. 4ff4, 59 Proprietors of Roxbury v. Huston, 39 
Atl. 496, it is apparently consfdered Me. 312. The latter case cites Corn- 
that if one to whom an invalid lease ish v. Searell, 8 Barn. & C. 471. The 
is made pays the rent reserved, and opinions in this case are singularly 
so attorns, he thereupon becomes a obscure, and but one out of the three 
tenant under that lease. It is sub- judges mentions the subject of con- 
mitted that an Invalid lease cannot sideration. 

thus be validated. The tenancy is in Smith v. Coker, 110 Ga. 654, 36 S. 
such ease created by the attornment, B. 107, is also to the effect that such 
not by the lease. Perhaps the mean- an agreement is invalid for want oi 
ing is that the attornment will in consideration. In that state, hq-w- 



182 CREATION OP THE RELATION. | 19 

is not only contradicted by the decisions recognizing the validity 
of an attornment as against the tenant/"**" but seems also to 
involve a mistaken notion of the nature of a tenancy. A lease 
is not, as we have before stated, so far as it creates the relation 
of tenancy, a contract requiring a consideration to support it, 
and an agreement to hold under another, an attornment, is, as 
we have endeavored to show, merely the acceptance of a lease. 
If one asks another to hold under him, and the latter agrees to 
do so, a tenancy arises because an estate, at least at will, is vested 
in the latter. The liability for rent, moreover, is not primarily 
a contractual liability,^*'"'' and even so regarding it, the grant 
of permission to continue in possession of the land would con- 
stitute a consideration, not to speak of the liability to which, 
in most jurisdictions, the person to whom the attornment is made 
becomes subject as landlord, by reason of the implied covenant 
for quiet enjoyment.^^i 

d. Acts showing attornment. An attornment, that is, an 
acknowledgment by one in possession of land that thereafter he 
will hold as tenant of another, may be made, as just indicated, by 
means of the acceptance of a lease from such other, such accept- 
ance being indicated either by joinder in the execution of the 
written instrument, or by language explicitly indicating the ac- 
ceptance. Or, even though there is no lease in explicit language, 
the person in possession may state to the other that ' ' I agree to 
hold of you," or "I attorn to you," or "I hereby acknowledge 
myself your tenant," or may use equivalent expressions.^''^ But 
frequently the acknowledgment is not so explicitly expressed, 
and, even when so expressed, evidence as to the language used 
may not be readily available, and consequently reference is fre- 
quently made to particular acts, rather than words, to show that 
the person in possession has recognized another as his landlord.*"^ 
Ordinarily, the payment by him of rent to another is regarded 

ever, the civil law view prevails to (5 B. Mon.) 162; Millay v. Millay, 

such an extent that oommon-law IS Me. 387; Phipps v. Sculthorpe, 1 

standards appear inapplicable. Barn. & Aid. 50; Goodman v. Jones, 

looa See ante, at notes 91-93. 26 Conn. 264. 

i.oob See post, § 171 a, at note 122. los Por various clases of acts which 

i»i See post, § 78 Ic (3), notes 404- have been regarded as showing an 

407. attornment, see post, § 73 a 6, § 78 

1D2 See Baley v. Deakins, 44 Ky. k (1), at notes 377-380. 



§ 20 DIVISION OF CROPS. 183 

as at least p-ima facie evidence of such recognition. The pay- 
ment of rent to another by one in possession does not, as we have 
seen,^''* always show a tenancy, since one may pay rent in behalf 
of his landlord, or may pay rent in his own behalf to one who 
is not his landlord, but such payment of rent by a person in 
possession is ordinarily made by him in the capacity of tenant, 
and is certainly prima facie evidence of an attornment to the 
person to whom it is paid, or, as it may be otherwise expressed, 
of the acceptance of a demise made by him. The case is as if 
the payee had expressly given to the payor permission to hold 
possession, and the payor had agreed that his possession should 
be regarded as under the payee. 

An attornment is not shown by the fact that one in posses- 
sion of land enters into negotiations as to the acceptance of a 
lease from a paramount claimant, these negotiations not resulting 
in an agreement.^"^ It has also been decided that the fact that 
one who entered as another's tenant assented to arbitration of 
a demand for rent by such other's wife did not involve an at- 
tornment to the wife,!"® and that even an offer to pay rent to 
one contesting the landlord's title, who refused to receive it 
till the title was settled, did not show an attornment.!**'^ 

The attornment, to be effective as against the person to whom 
it is made, must no doubt be accepted by him,io8 but, ordinarily, 
there is no difficulty in this regard, the attornment being advan- 
tageous to such person. The acceptance of rent, paid by the 
person attorning, necessarily shows, it seems, an acceptance of 
the attornment, unless there, in an explicit agreement to the con- 
trary. 

§ 20. Lease providing for division of crops — Cropping contract 
distinguished. 

"We have before referred to the distinction between a tenant 
and a "cropper," so called,!"* and the question whether one is 

104 See ante, at notes 41-50. i"" Luttrell v. Caruthers, 5 111. App. 

105 Center Creek Min. Co. V. Frank- (5 Bradw.) 544. 

enstein, 179 Mo. 564, 78 S. W. 785; ^"^ Cox v. Cunningham, 77 111. 545. 

Victory v. Stroud, 15 Tex. 373; los See "Winestine v. Ziglatzki- 

Blankenship v. Blackwell, 124 Ala. Marks Co., 77 Conn. 404, 59 Atl. 496. 

355, 27- So. 551, 82 Am. St. Rep. 175. wo See ante, § 10. 



184 CREATION OF THE RELATION. § 20 

upon land in one capacity or the other has frequently arisen, it 
being a very usual custom in this country for the owner of 
land and another person to agree that the latter shall sow and 
raise a crop or crops on the premises, which, when raised, shall 
belong to the two in eertaia named proportions.^^" If such an 
agreement creates a tenancy, it necessarily involves a lease, giv- 
ing the lessee an interest in the land, while, if it does not create 
a tenancy, it is merely a contract, giving the cultivator no inter- . 
est in the land. The controlling consideration in each case is/ 
whether the intention of the parties, as indicated by their words j 
and acts, was to create the relation of landlord and tenant.^^i If 
the agreement between them is in writing, the intention is to 
be determined by a construction of the language thereof, ^^^ ' 
while if verbal it is for the jury to determine from the evidence 
as to the language and the acts of the parties whether a demise 
was intended.^ 1^ 

110 In Georgia it was held that Mass. 48, 45 Am. Rep. 278 ; Gray v. 
where one entered as tenant, but Robinson, 4 Ariz. 24, 33 Pac. 712; 
without any express agreement as Betts v. Ratliff, 50 Miss. 561; Walls 
to the rent to be paid, a custom in v. Preston, 25 Gal. 59; Johnson v. 
that neighborhood to lease land for Hoffman, 53 Mo. 504; Moser v. Low- 
one-third of the corn and one-fourth er, 48 Mo. App. 85; Reed v. McRill, 
of the cotton controlled, and the land- 41 Neb. 206, 59 N. W. 775; Strange- 
lord was entitled to demand such way v. Eisenman, 68 Minn. 395, 71 
portions of the crops. Scruggs v. N. "W. 617; Anderson v. Listan, 69 
Gibs-on, 40 Ga. 511. Minn. 82, 72 N. W. 52, 40 Am. Dec. 

An agreement by a tenant to pay 60-8; Reeves v. Hannan, 65 N. J. 

"one-half of all the profits from the Law, 249, 48 Atl. 1018 ; State v. Page, 

farm" was construed as meaning 1 Speer Law (S. C.) 408; Aiken v. 

one-half of the gross receipts from Smith, 21 Vt. 172. 
tales, and not net receipts. Rich- 112 Orcutt v. Moore, 134 Mass. 48, 

mond V. Connell, 55 Conn. 403, 11 45 Am. Rep. 278; Johnson v. Hoff- 

Atl. 853. man, 53 Mo. 504; Reed v. McRill', 

The question of the rights of the 41 Neb. 206, 59 N. W. 775; Gray 

paTtles as to the crops in the case v. Robinson, 4 Ariz. 24, 33 Pac. 712. 
of a lease on shares is subsectuently "3 Williams v. Cleaver, 4 Houst. 

considered. Post, § 253. (Del.) 453; Warner v. Abbey, 112 

111 Birmingham V. Rogers, 46 Ark. Mass. 355; McKenzie v. Sykes, 47 
254; Hammock v. Creekmore, 48 Mich. 294, 11 N. W. 164. 

Ark. 264, 3 S. W. 180; Alwood v. In Moser v. Lower, 48 Mo. App. 85, 

Ruckman, 21 111. 200; Chicago & W. it is said that if there is no dispute 

M. R. Co. V. Linard, 94 Ind. 319, 48 as to the language, the effect of the 

Am. Rep. 155; Orcutt v. Moore, 134 language may be declared as matter 



§ 20 DIVISION OF CROPS. 185 

As before stated,"* the fact that the possession of the land 
is intended to pass out of the owner into the person who is tff 
cultivate it conclusively shows an intention that the relation 
of landlord and tenant shall be created, since one does not have 
possession, in the legal sense, unless he is tenant; while if there 
appears an intention not to give him possession, "exclusive pos- 
session" as it is ordinarily expressed, the relation of landlord 
and tenant cannot exist. Ordinarily, however, the intention of 
the parties as to the possession of the land does not appear, except 
as it may be deduced from the intention to create a tenancy or 
the reverse. 

The fact that the landowner retains the right to control and 
supervise the operations of the other party to the agreement in 
cultivating the land has been regarded as tending to show that 
no tenancy is created,^ ^^ and most properly so, it would seem, 
since such retention of control by a lessor is most unusual, if not 
unknown. 

Occasionally the courts have regarded the fact that by the 
agreement the cultivator is himself to make the delivery of the 
landowner's share of the crop to the latter, as tending to show 
an intention to regard that share as rent, and to create the re- 
lation of landlord and tenant;"^ and conversely to regard the 

of law. In Swanner v. Swanner, 50 purpose of enjoying the property 
Ala. 66, it is said to be a question for herein sold and conveyed, and to 
the jury -whether the relation of land- control and manage the same as he 
lord and tenant exists, even if there may see fit, and the court said that 
is no conflict in the evidence, the in- there was a sale of the timber, grass, 
tention being doubtful and the agree- and berries combined with a lease, 
ment verbal. . But stipulations made at the time 
11* See ante, § 10. of the agreement as to the mode in 
115 Almand v. Scott, 80 Ga. 95, 4 which the farming shall be carried 
S. E. 892, 12 Am. St. Rep. 241; HufC on do not tend to show that a tenancy 
V. Watklns, 15 S. C. 82, 40 Am. is not created. Wentworth v. Ports- 
Rep. 680; McCutchen v. Cren- mouth & D. R. Co., 55 N. H. 540. 
Shaw, 40 S. C. 511, 19 S. B. 140. us Strain v. Gardner, 61 "Wis. 174, 
In Freeman v. Underwood, 66 Me. 21 N. W. 35; Steel v. Frick, 56 Pa. 
229, an instrument signed by the 172 (semble); ViToodruff v. Adams, 
landowner granted to another all the 5 Blackf. (Ind.) 317, 35 Am. Rep. 
timber, grass, and oerries found or 122 (semble) ; Harrison v. Ricks, 71 
grown on the land for a term of N. C. 7; McCutchen v. Crenshaw, 40 
years, and gave him full power and S. C. 511, 19 S. E. 140. 
authority to enter said lands for the 



Ige CREATION OF THE RELATION. § 20 

fact that the landowner is to deliver to the cultivator the lat- 
ter 's share of the crop or of the proceeds thereof as tending to 
show a contrary intention.^*'' 

The fact that the instrument contains the ordinary words of 
demise, such as lease, let, or demise, is not conclusive that it is 
to take effect as a lease creating a tenancy,"^ but it has been 
regarded as tending to show that such is the intention,"® and, 
it would seem, the use of such language might well be given con- 
trolling effect, in the absence of a clear showing of an intention, 
in the other parts of the instrument, that the cultivator shall not 
occupy as tenant. That the instrument, in reserving to the land- 
owner si share of the crop, speaks of this share as rent has also 
been regarded as tending to show that it is a lease.^*** 

117 See Harrison v. Ricks, 71 N. land v. Voechting, 115 Wis. 352, 91 
C. 7. N. W. 990. So the absence of words 

118 Bernal v. Hovious, 17 Gal. 542, of demise has been referred to as 
79 Am. Dec. 149; Adams v. Thornton, showing that the instrument was not 
1 Cal. App. XVIII, 82 Pac. 215; Gris- ^ ^^^^^ Qya,y v. Robinson, 4 Ariz, 
wold V. Cook, 46 Conn. 198; Ferris 24 33 p^c 712 

V. Hogland, 121 Ala. 240, 25 So. 834; ^^ ^^^ ^ork' it has been said that 
CMwelLv. Distrie^ 15_mnd.(^,|,) ^^^ ..^^^^^^^ ^, ^^^ authorities" in 
379; Putnam v. Wise, 1 Hill (N. Y.) ^ .^ ,. 
234, 37 Am. Dec. 309; Taylor y. Brad- ^^^ ^^^^^ '^^^"'^ ^o be that, not- 
ley, 39 N. Y. 138, 100 Am. Dec. 415; withstanding the technical terms em- 
Aiken v. Smith, 21 Vt. 172; State v. Ployed, such an agreement (for the 
Page, 1 Speer Law (S. C.) 408, 40 division of crops) does not amount 
Am. Dec. 608; Armstrong v. Bick- to a technical lease, that the relation 
nell, 2 Lans. (N. Y.) 216. of landlord and tenant is not con- 
In Harrison v. Ricks, 71 N. C. 7, templated, and the portion of the 
it is said that the use of the word crops reserved to the owner is not 
"rent," as that the owner has "rent- rent. Per Woodruff, J., in Taylor v. 
ed" his land to another, has by itself, Bradley, 39 N. Y. 229. The whole 
but little weight in the interpreta- discussion of the subject in this 
tion of an oral or inartificially and opinion is admirable. But that 
obscurely written contract. there may be a tenancy created in 

119 Walls V. Preston, 25 Cal. 59; this state in connection with an 
Jones v. Durrer, 96 Cal. 95; Clarke agreement for the division of crops, 
v. Cobb, 121 Cal. 595, 54 Pac. 74; see Lake v. Sweet, 63 Hun, 636, IS 
Johnson v. Hoffman, 53 Mo. 504; N. Y. Supp. 342; Rawley v. Brown, 
Strain v. Gardner, 61 Wis. 174, 21 71 N. Y. 85. 

N. W. 35; Reeves v. Hannan, 65 N. i^Neal v. Brandon, 70 Ark. 79, 

J. Law, 249, 48 Atl. 1018; Mundy v. 66 S. W. 200; Reeves v. Hannon, 65 

Warner, 61 N. J. I^w, 395, 39 Atl. N. J. Law, 249, 48 Atl. 1018; Durant 

697; Steel V. Frick, 56 Pa. 172; Row- v. Taylor, 89 N. C. 351 (semblej. 



20 



DIVISION OP CROPS. 



187 



The fact that the landowner furnishes part of the stock and 
provisions to be used on the premises does not exclude the re- 
lation of tenancy.! 21 

By some cases the fact that the agreement contemplates the 
growing of one crop only, as distinguished from successive crops 
extending through two or more years, is regarded as tending to 
show that no demise is intended.^^^ gy other cases, however, 
this line of distinction is repudiated,i ^^ and it is not frequently 
asserted at the present day. 

Other provisions which have been regarded as tending to show 
that the instrument was to take effect as a lease are stipulations 
against under letting,i24 that the occupant shall keep buildings 
in repair,i25 that he shall pay the taxes,i2e and that he shall give 



Diyon v. Nlccolls, 39 111. 372, 89 Am. 
Dec. 312. 

In Hoskins v. Rhodes, 1 Gill & J. 
(Md.) 266, it is said that the reser- 
vation of a share of the grain as 
"rent" necessarily shows the instru- 
ment to be a lease. But the use of 
the word "rent" is not ordinarily re- 
garded as conclusive. See Aloser 
V. Lower, 48 Mo. App. 85; Ponder v. 
Rhea, 32 Ark. 435; Putnam v. Wise, 
1 Hill_(N. Y.) 234, 37 Am. Dec. 309; 
Haywood v. Rogers, 73 N. C. 320. 

121 See Smith v. Schultz, 89 Cal. 
526, 26 Pac. 1087; Wentworth v. 
Portsmouth & D. R. Co., 55 N. H. 540; 
Baughman v. Reed, 75 Cal. 319, 17 
Pac. 222, 7 Am. St. Rep. 170; Smith 
v. Meech, 26 Vt. 233; Hatchell v. 
Kimbrough, 49 N. C. (4 Jones Law) 
163; Harrison v. Ricks, 71 N. C. 7; 
Schlicht V. Callicott, 76 Miss. 487. 
And see post, § 254. 

i22Bradish v. Schenck, 8 Johns. 
(N. Y.) 151; Herskell v. Bushnell, 37 
Conn. 36, 9 Am. Rep. 299; Ponder v. 
Rhea, 32 Ark. 436; Harris v. Frink, 
49 N. Y. 24, 10 Am. Rep. 318; Arm- 
strong V. Bicknell, 2 Lans. (N. Y.) 
216; Bishop v. Doty, 1 Vt. 37; Warn- 
er V. Hoisington, 42 Vt. 94 (semble). 



So the fact that the agreement was 
to endure for the space of one year, 
this being more than a cropping sea- 
son, was regarded a? tendiiig to show 
a lease. Strain v. Gardner, 61 Wis. 
174, 21 N. W. 35. 

The decisions are based on Hare 
V. Ceiey, Cro. Eliz. 143, where it was 
decided that "exposing" the land to 
another "to sow at halves" was not 
a lease, "but otherwise if it be for 
two or three crops." No reasons for 
the distinction are given m the re- 
port. 

123 Woodruff V. Adams, 5 Blackf. 
(Ind.) 317, 35 Am. Rep. 122; Moul- 
ton V. Robinson, 27 N. H. 550; Put- 
nam V. Wise, 1 Hill (N. Y.) 246, 37 
Am. Dec. 309; Aiken v. Smith, 21 Vt. 
172. See Chicago & W. M. R. Co. v. 
Linard, 94 Ind. 319, 48 Am. Rep. 155. 

ii24 Walls V. Preston, 25 Cal. 59; 
Reeves v. Hannon, 65 N. J. Law, 
249, 48 Atl. 1018. 

125 Strain v. Gardner, 61 Wis. 174, 
21 N. W. 35; Rakestraw v. Floyd, 
54 S. C. 288, 32 S. B. 419; Steel v. 
Frick, 56 Pa. 172; Reeves v. Han- 
non, 65 N. J. Law, 249, 48 Atl. 
1018. 

128 Steel V. Prick, 56 Pa. 172. 



188 CREATION OF THE RELATION. § 20 

up possession at the end of the time named-^^T Qn the other 
hand, stipulations that the cultivator shall behave in a moral 
-manner and be respectful to the landowner and to his family 
tends to show that a lease is not intended.i^* 

In two or three states the question whether in a particular case 
the relation of landlord and tenant exists between the landowner 
and one cultivating the land on shares is determined with ref- 
erence to statutory provisions there existing. In Alabama it is 
provided that such relation shall exist when one party furnishes 
the land and another party the labor and team to cultivate it, 
and the crops are to be divided, while "the contract of hire" 
shall be held to exist if one party furnishes the land and the team 
and the other the labor, thus making the existence of a tenancy 
dependent on the question of whether the landowner furnishes 
the team.129 In a Kentucky case it was apparently stated that, 

127 Since he could not give up thews, 132 Ala. 286, 31 So. 613. It 
possession if he did not have it. seems that when there is no stipu- 
Johnson v. Hoffman, 53 Mo. 504; lation as to the furnishing of the 
Rakestraw v. Floyd, 54 S. C. 288, 32 S. team, the relation of tenancy exists 
E. 419. And see Jones v. Durrer, 96 hy reason of the fact that in such 

'Cal. 95, 30 Pac. 1027, apparently to case the occupant must furnish it. 

this effect. Wilson v. Stewart, 69 Ala. 302. 

It was held that a tenancy In Hendricks vs. Clemmons, 147 

existed when it was agreed that the Ala. 590, 41 So. 306, it is held that 

cultivator was to give a lien on his the provision that a contract of hire 

crop for advances, which by statute shall exist when one party furnishes 

a laborer cannot give, that he was the land and team and the other the 

to keep the place in repair, clear labor does not apply if each party is 

out the ditches, and clear the river to furnish one-half the fertilizers, 

banks of brush, which provisions The court says that tTie parties are 

seemed to contemplate his control tenants in common of the crops, but 

of the premises, that he was not it does not say what their relation 

to hire out his hands (a laborer does is as regards the land, 
not usually have hands) , and wa'3 to 'In Georgia it is provided (Code 

give up possession at a certain data. 1895, § 3131) that "where one is 

Rakestraw v. Floyd, 54 S. C. 288, 32 employed to work for part of the 

S. E. 419. crop, the relation of landlord and 

128 McCntchen v. Crenshaw, 40 S. tenant does not arise." This seems 
C. 511, 19 S. E. 140, 44 Am. St. Rep. to amount merely to a provision 
'^39. that the fact that one who is an- 

128 Code 1907, §§ 4742, 4743. See employe is paid by a share of the 

Kilpatrick v. Harper, 119 Ala. 452, crop does not necessarily make him 

24 So. 715; Ragsdale v. Kinney, 119 a tenant, which is sufficiently obvi- • 

Ala. 454, 24 So. 443; Hunt v. Mat- ous. 



§ 20 DIVISION OF CROPS. 189 

by reason of a statutory provision that contracts by which a 
landlord is to receive a portion of the crop as compensation for 
the use or rent of the land shall vest in him the right to such 
a portion of the crop, when planted, as he has contracted for, the 
relation of landlord and tenant exists in cases of an agreement 
for the division of crops,!^'' but in a later case the possibility 
that such an agreement may not create a tenancy is clearly 
recognized.i^i 

Occasionally it has been said that an instrument providing for 
the sharing of crops will not be construed as a lease unless such 
clearly appears to be the intention of the parties,!^^ and this 
would seem to be a reasonable rule, calculated to remove to 
some extent the difficulties with which the subject has been in- j 
vested. An instrument providing for the cultivation and divi- 
sion of crops should not any more than any other instrument, 
be extended in effect so as to operate likewise as a lease, unless 
such appears to have been the intention of the parties. This 
view, that an agreement for a division of the crops is in itself no 
evidence that a lease is intended, is indicated, though not clearly 
stated, in a number of cases in which the construction of the 
instrument was adverse to the existence of a tenancy .1^* 

It has, in one state, been said that when there is any question 
as to whether an instrument providing for the division of crops 
between the cultivator and the landowner constitutes a lease or 

isoRedmon v. Bedford, 80 Ky. 13. Reynolds, 48 Hun (N. Y.) 142; 

131 Wood V. Garrison, 23 Ky. Law McLaughlin v. Kennedy, 49 N. J. 

Rep. 295, 62 S. W. 728. Law, 519, 10 Atl. 391; Gray v. Rey- 

is2Alwood V. Ruckman, 21 111. nolds, 67 N. J. Law, 169, 50 Atl. 

200; Guest v. Opdyke, 31 N. J. Law, 670; Wood r. Garrison, 23 Ky. Law 

552. Rep. 295, 62 S. W. 728; Culley v. 

133 Shields v. Kimhrough, 64 Ala. Taylor, 62 Neb. 651, 87 N. W. 334; 

504; Bourland v. McKnight, 79 Ark. Messinger v. Union "Warehouse Co., 

427, 96 S. W. 179; Richards v. Ward- 39 Or. 218, 56 Pac. 808; Rogers v. 

well, 82 Me. 343, 19 Atl. 863; Adams Frazier Bros. & Co. (Tex. Civ. App.) 

v. Thornton, 1 Cal. App. XVIII, 82 108 S. "W. 727. But see Schlicht v. 

Pae. 215; Moore v. Linn (Okl.) 91 Calllcott, 76 Miss. 487, 24 So. 869; 

Pac. 910; Creel v. Kirkham, 41 111. Alexander v. Zeigler, 84 Miss. 560, 

344; Delaney v. Root, 99 Mass. 546, 36 So. 536, where a tenancy was 

97 Am. Dec. 52; De Mott v. Hager- regarded as created although there 

man, 8 Cow. <N. Y.) 220, 18 Am. was apparently no language partic- 

Dec. 443; Caswell v. Distrieh, 15 ularly indicative of an intention to 

Wend. (N. Y.) 379; Reynolds v. that effect. 



190 CREATION OF THE RELATION. § 21 

a mere agreement, the former construction will be preferred, upon 
the ground that the existence of the statutory lieTo}^* in such 
case in favor of the landlord will encourage such lettings to 
actual cultivators and so conduce to the common prosperity.'^s 
In another state, where no statutory lien exists, it has been said 
that the construction of the instrument as not constituting a 
lease is in accord with public policy, since in the case of a lease 
the title to the whole crop vests in the tenant, and the landlord 
is liable to lose his share.i^e Thus the consideration of public 
policy would have a directly opposite effect in different states. 
It seems questionable, however, whether such a consideration 
should be introduced to make the parties landlord and tenant 
when no intention to that effect appears. 

§ 21. The parties to a lease — Personal capacity. 

a. Married women — (1) As lessors — (a) At common law. 
At common law the husband acquires the right to the rents and 
profits of the wife's freehold estates during the continuance of 
the marital relation, that is, until his or her death, or other ternj- 
ination of the relation, as by divorce, and he acquires the abso- 
lute dominion over her chattel interests during his life. Con- 
sequently, a lease by a married woman is, at common law, abso- 
lutely void,^^'^ while the husband maj' make a valid lease of the 
wife's property, to endure during the marriage, even without the 
wife's joinder or eonsent.^^^ 

Though the husband thus has the control over and right to the 
profits of the wife's freehold estates and may make a lease, valid 
so long as these rights endure, he cannot at common law, even 
by a lease in which she joins, make a demise which will be bind- 
ing after his death, since if he dies before the wife she may 
avoid the lease, and if he survives her, while the demise will be 
effectual as against him so long as he may have an estate by 
the curtesy, in the land, upon his death, or in case he has no 

134 See post, chapter XXXI. Law of Married Women, § 538; 

135 Birmingham v. Rogers, 46 Ark. Murray v. Emmons, 19 N. H. 483; 
254. Abies v. Abies, 86 Tenn. 333, 9 S. 

138 Guest V. Opdyke, 31 N. J. Law, W. 692. 

552. And see Delaney v. Root, 99 iss Roper, Husband & Wife, 90; 1 

Mass. 546, 97 Am. Dec. 52. Piatt, Leases, 138. 

137] Blackst. Comm. 444; Bishop, 



§ 21 PERSONAL CAPACITY OF PARTIES. I9I 

estate by the curtesy, the wife's heirs may repudiate the lease.i^s 
The cases are to the efEect, however, that, though the wife may 
repudiate the lease after the husband's death, and enter upon 
the lessee,! *<• she may, on the other hand, if the lease was by 
deed,i*i affirm the lease, as by the acceptance of rent thereun- 
der,i*2 and it has been said that it is binding on her so long as 
she fails to disaffirm it.i*;* Whether the wife has the right at com- 
mon law thus to affirm the lease after her husband's death when 
she did not originally join therein, but it was executed by the 
husband alone, is a question upon which the cases are in con- 
flict."* 

Of the chattels real of the wife, the husband has, at common 
law, the absolute right of disposal, and a lease thereof by him is 
■valid as against her even after his death without reference to 
her assent or nonassent thereto.^** 

By the enabling statute of 32 Hen. 8, e. 28, it was provided 
that one seised, in right of his wife, of land, which had not been 
under lease within a year, could, by a lease under seal in which 
his wife joined, reserving to the husband and wife and to the 
heirs of the wife so much yearly rent as had been customarily 
paid, create a term not to exceed twenty-one years, which 
should be valid and operative as against both the wife and the 
heirs of the wife.i*® Conceding this statute to be in force in 
any particular jurisdiction, it can supersede the common-law 

139 Roper, Husband & Wife, 91; wife's failure to properly execute 

Comyn, Landl. & Ten. 41; Bac. Atir., the lease did not prevent her recov- 

Lieases (C) ; Jordan v. Wikes, Cro. ery of rent after the husband's 

Jac. 332; Miller v. Manwaring, Cro. death. 

Car. 397. 1** See 2 Wms. Saund. 180, note 

"oThetford v. Thetford, 1 Leon. (9) to Wotton v. Hele; IPlatt, Leases, 

192; Jordan v. Wikes, Cro. Jac. 332; 143 et seq., reviewing the English 

Oreenwood v. Tyber, Cro. Jac. 563. cases. Winstell v. Hehl, 69 Ky. (6 

1*1 Walsal V. Heath, Cro. Eliz. 656; Bush.) 58, is to the efEect that she 

Greenwood v. Tyber, Cro. Jac. 564; cannot afSrm it in such case. 

Turney v. Sturges, 1 Dyer, 91 b. "s Co. Litt. 46 b, 351 a; Bac. Abr., 

1*2 Bto. Abr., Acceptance, pi. 6; tit. Baron & Feme (C) 2; Anonymous, 

Greenwood y. Tyber, Cro. Jac. 563; Poph. 5; Grute v. Locroft, Cro. Eliz. 

Doe d. Collins v. Weller, 7 Term R. 287; 1 Piatt, Leases, 139. 

478. See Trout v. McDonald, 83 Pa. 1*6 This act is considered at 

144. length in 1 Piatt, Leases, 154 et seq. ; 

usToler v. Slater, L. R. 3 Q. B. 1 Bishop, Married Women, § 550 

42, where it was decided that the et seq. 



192 CREATION OF THE RELATION. | 21 

rules only in cases sti'ictly within its terms, and ia most cases it 
would itself be superseded by the modem legislation extending 
the rights of married women. 

(b) In equity. Property settled upon a married woman "for 
her sole and separate use" is more or less withdrawn from the 
operation of the common-law rules depriving her of the power 
of alienation during coveture. In some jurisdictions she is al- 
lowed such power in the absence of a specific restriction in this 
respect contained in the instrument creating the trust, while in 
others she has the power of alienation only when it is expressly 
given to her.i*'^ Presumably her power to make a lease would 
be, in any jurisdiction, determined with reference to the gen- 
eral rule in this regard there prevailing.i*^ 

(c) Under statutes. In all jurisdictions the husband's in- 
terest in and control over the property of his wife has been 
modified or entirely abrogated by the adoption of what are known 
as the "married woman's property acts," and consequently he 
has,* as a general rule, no longer the power to dispose of the free- 
hold or chattel interests of his wife even for the term of his 
own life, and a lease by him of her property, in which she failed 
to join, would be absolutely void.^*® 

Some of the statutes enlarging the rights of married women 
have been regarded as enabling her to dispose of her "statutory 
separate estate" without the joinder of her husband, this effect 
having been given to a statutory provision that she may "own, 
possess and enjoy" her property as if unmarried.i^** Some of the 
statutes expressly require the husband's consent to or joinder in 
a lease to endure for more than a named period.i^i It has been 

1*7 See 2 Pomeroy, Eq. Jur. §§ 1104, hb But though such lease by him 
1105; 2 Perry, Trusts, §§ 661, 665; is void, the person entering there- 
25 Am. & Eng. Enc. Law (2d Ed.) under may become a tenant of the 

^^ • wife by reason of the wife's sub- 

I'is So it has been decided in Eng- . ^ ^ , . ^ ^- c 

L/cou uc^iucu u ijiife ggq^,gjj^ consent to his retention of 

land, in accordance with the general . , , ^ . 

^, ^ , possession, as when she accepts rent 
rule there prevailing, that, unless 

restricted by the instrument creat- ^""""^ ^™- ^^"^ B™"^* ^- ^^"^''"■ 

ing her sole and separate equitable ^^ ^'^- l^^- ^^ N. W. '521. 

estate, the wife may make a lease "" Parent v. Callerand, 64 111. 97. 

thereof. Taylor v. Meads, 4 De Gex, See Vandervoort v. Gould, 36 N. Y. 

J. & S. 597. See Adams v. Gamble, 639. 

12 Ir. Ch. 102. 151 See Melley v. Casey, 99 Mass. 



§ 21 PERSONAL CAPACITY OF PARTIES. 193 

decided in several cases that a statutory requirement of the hus- 
band's joinder in a "conveyance" does not require his joinder 
in a lease by her .152 Not infrequently the statute requires a 
lease or other conveyance by a married women to be acknowl- 
edged by her in a certain way, as on private examination apart 
from her husband, and the absence of such acknowledgment has 
been regarded as entirely invalidating the lease as against her.^"* 
(d) Recovery of rent. In the case of a lease by a married 
woman without the joinder of the husband, the lessee might per- 
haps, at common law, defend an action on the covenant for rent 
upon the principle elsewhere referred to, that a covenant by 
the lessee is not binding if the lease is not valid as against the 
lessor! 54 and an action of debt for rent would, it seems, not lie, 
for the reason that, the lease being void, the reservation of rent 
is void. If however the wife could, in the particular case, be 
regarded as the representative of the husband in making the 
lease, the lessee entering thereunder would, at common law, be 
the tenant of the husband, and the latter could recover the value 
of the use and occupation so long as the lessee retains posses- 
sion. Under the modern statutes which give the wife the right 
of possession and control of her property, she would, it seems, 
herself have a right of action for use and occupation against 

241; De Wolf v. Martin, 12 R. I. garded as an "incumbrance" within 

633. a statute requiring the husband's 

152 Perkins v. Morse, 78 Me. 17, joinder in the creation of an incum- 

2 Atl. 130, 57 Am. Rep. 780; Sullivan brance. 

V. Barry, 46 N. J. Law, 1; Id., 47 153 George v. Goldsby, 23 Ala. 326; 

N. J. Law, 339, 1 Atl. 240. Worthington's Lessee v. Young, 6 

In Indiana the word "convey- Ohio, 313; Keller v. Klopper, 3 Colo, 
ance" in such a statute has been 132; Carlton v. Williams. 77 Cal. 89, 
held, in view of other statutory pro- 19 Pac. 185, 11 Am. St. Rep. 243. 
visions, not to apply to a lease for is* See post, § 54. See Toler v. 
three years or less. Pearcy v. Hen- Slater, L. R. 3 Q. B. 42. Occasion- 
ley, 82 Ind. 129; Shipley v. Smith, ally, however, the lessee has been 
162 Ind. 526, 70 N. E. 803. And see held liable for rent under a lease 
Nash V. Berkmeir, 83 Ind. 536. And made by a married woman, though 
an oil and gas lease has been decided this was not properly executed by 
not to be within the statute. Heal her, the lessee having been allowed 
V. Niagara Oil Co., 150 Ind. 483, 50 to retain possession undisturbed. 
N. E. 482. Agerter v. Vandergrift, 138 Pa. 576, 

In Hoover v. Chambers, 3 Wash. 21 Atl. 202, 12 L. R. A. 290; Nash 

T. 26, 13 Pac. 547, a lease was re- v. Berkmeir, 83 Ind. 536. 

L. and Ten. 13. 



194 CREATION OF THE RELATION. § 21 

the lessee so entering under a lease invalid as against her for 
want of joinder by her husband, or of an acknowledgment in 
the statutory mode.i^^ 

In one state, where the "community system" prevails, it has 
been held that if the husband undertakes to lease community 
land without the joinder of his wife, the lessee cannot refuse to 
pay rent until the lessor and his wife give to the lessee a valid 
lease executed by both.i^^ It would seem, however, that, apart 
from any such demand, the lessee could not, when sued by the 
husband for rent, deny that the latter alone had a full and com- 
plete title to the property, lack of title in the lessor not being 
recognized as a defense to an action for rent.^^'^ 

(2) As lessees. At common law a married woman may take 
a lease, as she may any other conveyance, and the husband's ex- 
press assent is not necessary, the leasehold estate vesting in her 
until he actually dissents.^^^ She may, however, avoid the lease 
after her husband's death.i^^ The modern statutes excluding 
the husband 's powers of control over her property, and authoriz- 
ing her to take and hold property as if sole, it seems, abolished 
both the husband's power to invalidate the lease by dissenting 
therefrom and her power to repudiate it after his death.i^* 

At common law a married woman, having no power to contract, 
would not, by taking a lease with an express covenant on her 
part to pay rent, become personally liable thereon.i^i The ques- 
tion of how far she can be subjected to personal liability upon 
her agreement to pay rent would, at the present day, depend upon 
the language of the statutes extending a married woman's abil- 
ity to contract and the construction placed thereon. In some 
jurisdictions the common-law inability of the wife to contract 
is entirely removed ;*^2 jq some, no- doubt, a contract by her to 

i55 This is presumably what is ibs Co. Lltt. 3 a; 2 Blackst. Comm. 

meant by the statement in Kinsey 293; Swain v. Holman, Hob. 204, 

V. Minnick, 43 Md. 112, that in such Hutt. 7; Baxter v. Smith, 6 Bin. 

case the law implies a verbal agree- (Pa.) 427. 

ment of similar import as to terms 159 Co. Litt. 3 a; 1 Piatt, 'Leases, 

to that expressed in the writing. 531; Comyn, Landl. & Ten. 49. 

156 Isaacs V. Holland, 4 Wash. 54, leo See Darby v. Callaghan, 16 N. 
29 Pac. 976; Dietz v. Winehill, 6 T. 71. 

Wash. 1»9, 32 Pac. 1056; Tryon v. isi See Draper v. Stouvenel, 35 N. 
Davis, 8 Wash. 106, 35 Pac. 598. Y. 507. 

157 See post, § 78 c (3). lezThat a married woman lessee 



§ 21 PERSONAL CAPACITY OF PARTIES. 195 

pay rent would be regarded as presumptively a contract for the 
benefit of her separate estate, within the meaning of the statutes 
enabling her to make such a contract; while in others it might 
be necessary 'to show that the particular contract was for the 
benefit of her separate estate, or that she expressly charged her 
separate estate with the liability. The question of a married 
woman's liability under her contract to pay rent is, it would 
seem, analogous to that involved in her assumption of the pur- 
chase price of property bought by her. 

b. Infants — (1) As lessors. A lease by an infant, like 
any other conveyance by him, is ordinarily voidable but not void, 
and is consequently effectual to vest title in the lessee unless 
repudiated by the lessor ,i«* or, in case of his death while an 
infant, by his heir or personal representative, according as the 
reversion is realty or personalty.^** There are, moreover, de- 
cisions to the effect that an infant cannot disaffirm his lease until 
his majority,i«5 thig being the general rule applied in the case 
of a conveyance by an infant of an interest in land.^®® It is 
said, however, that he may, even during infancy, enter and 
enjoy the profits,^®'^ the effect of which would be, it seems, prac- 
tically to avoid the lease. Any act on his part which shows an 

is so liable for rent reserved in a v. Mix, 17 Wend. (N. Y.) 119, 31 

lease to her, see Prevot v. Lawrence, Am. Dec. 285. 

51 N. Y. 219; Westervelt v. Ackley, 2 lo* 1 Piatt, Leases, 32. 

Hun (N. Y.) 258; Id., 62 N. Y. 505; That an infant's contract or con- 

Ackley V. Westervelt, 86 N. Y. 448; vieyance may be avoided by his 

Bush V. Babbitt, 25 Hun (N. Y.) 213; heir or personal representative, see 

Fiske V. Mcintosh, 101 Mass. 66. cases cited 18 Am. St. Rep. 697, 

See, also, Rogers, v. Coy, 164 Mass. note to Craig v. Van Bebber. 

391, 41 N. B. 652. ^'^ Slator v. Trimble, 14 Ir. C. L. 

In Maryland Code, Pub. Gen. Laws 342; Hartshorn v. Earley, 19 U. C. 

1904, c. 45, § 18, it is expressly pro- C. P. 139; Lipsett v. Perdue, 18 Ont. 

vided that if a deed or lease be 575. 

made to a married woman, she may ^'^ See cases cited 18 Am. St. Rep. 

bind herself by any covenant run- 670; 16 Am. & Eng. Enc. Law (2d 

ning with or relating to the land. Ed.) 298. 

See Worthington v. Cooke, 52 Md. ibt See Zouch v. Parsons, 3 Bur- 

297; Cruzen v. McKaig, 57 Md. 454. row, 1794, 1808; Bool v. Mix, 17 

163 Co. Litt. 45 b, 308 a; Zouch v. Wend. (N. Y.) 119, 31 Am. Dec. 285; 

Parsons, 3 Burrow, 1794, 1 W. Bl. Cummings v. Powell, 8 Tex. 80; 

575; Slator V. Brady, 14 Ir. C. L. 61; cases cited 18 Am. St. Rep. 670, 

Field V. Herrick, 101 III. 110; Bool 671, note to Craig v. Van Bebber. 



196 CREATION OF THE RELATION. § 21 

intent to repudiate the lease, at least if done within a reasonable 
time after his arrival at majority, is sufficient to avoid it.^®^ 

The lessee has no right to avoid the lease on account of the 
minority of the lessor, but the option is -with the lessor alone.^** 

The lease, to be effective against the infant in any case, must 
be, it has been decided, his own personal act.^'^" This is an 
application of the rule, adopted in most jurisdictions, that an 
infant cannot act through an agent.^^^ 

In one or two of the old cases there are dicta to the effect that 
a lease by an infant is absolutely void if no rent is reserved,!'^^ b^t 
this is certainly not so if any advantage accrues to the infant from 
the lease, as when it is made for the purpose of trying title.i'^^ 
Even though rent is reserved, it has been said, if it would be more 
beneficial to the infant to regard the lease as absolutely void, as 
when otherwise it would work a forfeiture,^ '^^ or make him liable 
in damages, or involve a breach of trust on his part,^'^^ it will be 
so treated. 

Any act on the part of the lessor, after attaining his majority, 
which shows an intention to repudiate the lease, will, it seems, be 
sufiicient to avoid it. Such, for instance, will be the effect of a 
re-entry by him on the land, an action by him to recover posses- 
sion, a suit to set aside the lease, or a notice to the lessee of his 
intention to that effect.^'^® A conveyance or lease to another per- 

Ms See 2 TifEany, RealProp. 1149. 216, per Sbuthcote, J.; Anonymous, 

169 Slater v. Trimble, 14 Ir. C. L. 3 Salk. 196. 
342; Zouch v. Parsons, 3 Burrow, i^s Humphreston's Case, 2 Leon. 

1794. See Clayton v. Ashdown, 216, per Gawdy, J.; Davis v. Man- 

Vin. Abr., Enfant (G 4) pi. 1; For- ington, 2 Sid. 109; Anonymous, 3 

rester's Case, 1 Sid. 41; Smith v. ^^Ik. 196;.Rames v. Machln, Noy, 

Bowen 2 Keb. 581. ^^^'' Zouch v. Parsons, 3 Burrow, 

• iTODoe d. Thomas v. Roberts, 16 ^^'^^' 
Mees & W 778 i'^* Zouch v. Parsons, 3 Burrow, 

,,i'a„„ „ \i, •*■ •<- J or. ^ , 1807. See Ashfield v. Ashfield, 

"1 See authorities cited 22 Cyclo- „,,„„, 

,. ^ „ „ Godb. 364. 

pedia Law & Proc. 514. But see ,,. _ , „ „ „ 

„ ,, i7o Zouch V. Parsons, 3 Burrow, 

the discussion of the authorities in -.oq^ 

18 .Am. St. Rep. 629, note to Craig v. ,,, g^^ ^ Tiffany, Real Prop. 1151; 

Van Bebber. 18 j^^ g^ ^^^ gg2_ggg_ ^^^^ ^^ 

i72Blunden v. Baugh, Cro. Car. Craig v. Van Bebber; 16 Am. & Bng. 

302; Humphreston's Case, 2 Leon. Enc. Law (2d Ed.) 288. 



§21 



PERSONAL. CAPACITY OF PARTIES. 



197 



son will operate as a disaffirmance of the earlier lease only if in- 
consistent therewith.!'^ 

The lessor may, by some act affirming the validity of the lease 
after arriving at full age, disable himself from thereafter deny- 
ing its validity. Such an effect has been given to his act in mak- 
ing a mortgage in terms subject to the lease,i''s and to his ac- 
ceptance of rent under the lease.i'9 And, in an old case,"o the 
act of the lessor in saying to the lessee "God give you joy of it" 
■was regarded as a ratification of the lease. It is even said to have 
been decided that the receipt of rent by the lessor during infancy 
is so far a confirmation of the lease as to prevent the termination 
of the lease by the lessor without notice.isi 

Upon the question whether equity has inherent power to direct 
the sale or leasing of land belonging to an infant, the cases are 
not in accord.i*^ In some states there is a statutory grant of such 
power. 

(2) As lessees. A lease to an infant, like a lease by him, is 
voidable and not void, and it is optional with him whether he will 
repudiate liability thereunder for rent or otherwise.iss jje must. 



177 Slator V. Brady, 14 Ir. C. L. 61; 
Philips T. Green, 10 Ky. (3 A. K. 
Marsh.) 7, 13 Am. Dec. 124; Leit- 
ensdorfer v. Hempstead, 18 Mo. 269; 
Singer Mfg. Co. v. Lamb, 81 Mo. 
221; Dominick v. Michael, 6 N. Y. 
Super. Ct. (4 Sandf.) 374, 421; Mc- 
Gan V. Marshall, 26 Tenn. (7 
Humph.) 121; Stuart v. Baker, 17 
Tex. 417. 

iT8 Story V. Johnson, 2 Younge & 
C. Exch. 586. 

179 Smith V. Low, 1 Atk. 489; Van 
Doren v. Everitt, 5 N. J. Law (2 
South.) 460, 8 Am. Dec. 615. 

180 Anonymous, 4 Leon. 4, pi. 15. 

181 Comyn, Landl. & Ten. 288, cit- 
ing Rees V. Evans, an unreported 
■case. 

It has been held that where a lease 
was made by an agent in the name of 
an infant, it was absolutely void, 
^o as to justify an ejectment by the 
Infant against the lessee without 



any notice to quit. Doe d. Thomas 
v. Roberts, 16 Mees. & W. 778. But 
as to this view that a conveyance 
or contract by an infant, through 
an agent is absolutely void. See 
18 Am. St. Rep. 629, note to Craig v. 
Van Bebber. 

182 See authorities cited 22 Cyclo- 
pedia Law & Proc. 563; Pomeroy, 
Eq. . Jur. § 1309. 

issKetsey's Case, Cro. Jac. 320; 
Blake v. Concannon, Ir. R. 4 C. L. 
323; Cheshire v. Barret, 4 McCord 
Law (S. C.) 241, 17 Am. Dec. 735; 
Gregory v. Lee, 64 Conn. 407, 30 
Atl. 53, 25 L. R. A. 618; Plexner v. 
Dickerson, 72 Ala. 318. So the 
validity of the lease cannot be ques- 
tioned by a third person. Griffith v. 
Schwenderman, 27 Mo. 412. But it 
has been decided that where a lessee 
set up his Infancy as exempting him 
from liability under the lease, other 
parties to the action could avail 



198 CREATION OF THE RELATION. | 21 

it seems, disaffirm the lease and relinquish, or offer to relinquish, 
possession, within a reasonable time after his coming of age, and 
a failure so to do will render him liable for arrears of rent accru- 
ing before as well as after his majority.^®* 

As to whether the infant should be held personally liable for 
rent accruing during his minority, so long as he retains possession 
of the premises, the cases are not in accord. It has been decided 
in one case that he is not liable for an installment of rent because 
he has possession when it comes due,i®5 and this seems to accord 
with the ordinary view that an infant purchaser of property may 
repudiate all liability under his contract, though he retains pos- 
session until his majority .^^^ There is, however, a contrary decis- 
ion to the effect that' so long as the infant retains possession, he 
is liable for the accruing rent,i*^ a view which is to be regarded 
as based, it seems, on the theory not that his contractual liability 
I emains after his repudiation thereof but that there is an obliga- 
tion, arising from the tenure, to pay the rent reserved in the case 
of an infant as well as in that of an adult lessee. ^^^ In accordance 

themselves of his infancy as in» ise See 18 Am. St. Rep. 673, note to 

validating a provision in the lease Craig v. Van Bebber. 

giving to the lessor a lien on his ist Blake v. Concannon, Ir. R. 4 

chattels on the premises, and claim C. L. 323. So in Y. B. 21 Hen. 

the property under another agree- 6, 31 b, it is said by Newton, J.: 

ment. Peck v. Cain, 27 Tex. Civ. "if one lease for a term of years, 

App. 38, 63 S. W. 177. rendering rent, in fait" (that is, not 

is4Boody V. McKenney, 23 Me. by matter of record, see Co. Litt. 

517; McClure v. McClure, 74 Ind. 380), "to an infant within age, if 

108; Baxter v. Bush, 29 Vt. 465, 70 he manures the land, a writ of debt 

Am. Dec. 429. See Northwestern R. is maintainable against him; the 

Co. V. McMichael, 5 Bxch. 114, 125. cause is, he has a quid pro quo." 

18B Flexner v. Dickerson, 72 Ala. The case of Kirton v. Eliott, 2 

318. The dictum of Jessel, M. R., Bulst. 69, elsewhere reported as 

in Lempriere v. Lange, 12 Ch. Div. Ketsey's Case, Cro. Jac. 320; Ket- 

677, seems to be to this effect. In ley's Case, 1 Brownl. & G. 120; 

this case the lessee had obtained the Kettle v. Eliot, 1 Rolle, Abr. 731, 

lease by a false representation that frequently referred to in this eonnec- 

he was of full age, and the court tion, is obscure. See the considera- 

canceled the lease at the request of tion of the case in 18 Am. St. Rep. 

the lessor and ordered possession to 590; Northwestern R. Co. v. Mc- 

be given up, but said that the lessor Michael, 5 Exch. 114, and in Blake 

could not repudiate the lease and V. Concannon, Ir. R. 4 C. L. 323. 

yet hold the lessee liable for use and iss That is, the liability is in debt 

occupation. and not in covenant. See post, § 



§ 21 PERSONAL CAPACITY OF PARTIES. 199 

with this view is a quite early case in which it was decided that, 
where an infant had attorned to the lessor's grantee, the latter 
could distrain on his goods for rent.^*® 

If the lessee repudiates liability during his infancy, and relin- 
quishes possession of the land, he is unquestionably not liable for 
rent thereafter accruing.i^" 

An infant occupying under a lease is personally liable to his 
lessor, if the occupation can be considered as a "necessary, "^^i 
In that case, however, the liability is not on his contract to pay 
rent, nor by reason of privity of estate, but is quad contractual in 
its nature, and is merely for the value of the occupation so long as 
this actually endures.^^^ 

There is an Irish decision to the effect that an infant assignee 
of a leasehold interest, who takes possession under the assign- 
ment, is liable for rent to the same extent as any other as- 
signee. ^'^ This seems to be the only decision bearing upon the 
question, and is in accord with the view above referred to that an 
infant lessee is liable for rent by reason of his holding of the 
property to which the liability is attached.i®^'' 

It has been decided that an infant lessee may be made liable in 
trover for the conversion of crops on which the lessor had an ex- 
press lien,i9* a decision in accord with the tendency of the cases 
in this country to hold an infant liable for a tort, although it 
grows out of his contract. ^^^ 

170. In Pollock, Contracts (6tli loi Lowe v. Griffith, 1 Scott, 458; 

Ed.) 63, the author adopts the view Gregory v. Lee, 64 Conn. 407, 30 

of Baron Parke In Northwestern R. aU. 53, 25 L. R. A. 618; Peck v. 

Co. v. McMichael, 5 Exch. 114, ac- ^^^^^ 37 Tex. Civ. App. 38, 63 S. W. 

cording to which an infant lessee ^^^ 

Is to be regarded as in the same ^,,^^^^^^^ ^ Lee, 64 Conn. 407, 

position as an mfanpurdiaser of 

shares of stock, who "is not a mere 

contractor, but a purchaser of an Keener, Quasi Contracts, 20. 

interest in a subject of a permanent "' Kelly v. Coote, 5 Ir. C. L. 469. 

nature with certain obligations at- issa See ante, note 188. 

tached to it." 19* Baxter v. Bush, 29 Vt. 465, 70 

i89Conny's Case, 9 Coke, 84 b. Am. Dec. 429. As to the right of 

100 See Gregory v. Lee, 64 Conn, one having a lien on crops to bring 

407, 30 Atl. 53, 25 L. R. A. 618; trover for their conversion, see post. 

Northwestern R. Co. v. McMichael, § 319 k, I. 

5 Exch. 114; Blake v. Concannon, iss See 18 Am. St. Rep. 720, note 

Ir. R. 4 C. L. 323; Ketley's Case, 1 to Craig v. Van Bebber. 

Brownl. & G. 120. 



200 CREATION OF THE RELATION. § 21 

c. Persons non compos mentis — (1) As lessors. The ques- 
tion whether a person has the mental capacity to make a lease is 
to be determined, no doubt, by the same considerations as control 
in the case of any other conveyance, and the general rule in this 
regard is that the validity of a conveyance is not affected by the 
fact that the grantor's mind is impaired, or that he is subject to 
a delusion, if this is not such as to have influenced him in making 
the conveyance.^ss 

In most jurisdictions, a conveyance by one mentally incapac- 
itated is, like one by an infant, voidable only and not void,i*^ 
unless a guardian has been appointed for the grantor and his 
property, after judicial inquisition into his sanity, in which case 
the conveyance is regarded as absolutely void.^^^ By some decis- 
ions a conveyance by one mentally incapacitated to make it is 
regarded as in all cases absolutely void.^^^ 

In jurisdictions where the conveyance is regarded as voidable 
only, it may be avoided either by the grantor after reacquiring his 
mental capacity ,2''o by his guardian or committeCj^oi or, after his 
death, by his heir or personal representative, according as the one 
or the other is entitled to the property.^*^ 

198 Burgess v. Pollock, 53 Iowa, 201, 66 N. W. 1; Griswold v. Butler, 

273, 5 N. W. 179, 36 Am. Rep. 218; 3 Conn. 227; ImhofE v. Witmer's 

Llndseyi v. Lindsey, 50 111. 79, 99 Adm'r, 31 Pa. 243; Elston v. Jasper, 

Am. Dec. 489; Doe d. Guest v. Bee- 45 Tex. 409. 

son, 2 Houst. (Del.) 246; Blakeley i8» German Sav. & Loan Soc. v. 

V. Blakeley, 33 N. J. Bq. (6 Stew.) De Lashmutt, 67 Fed. 399; Sullivan 

502; Whittaker v. Southwest Vir- v. Flynn, 20 D. C. 396; Elder v. 

ginia Imp. Co., 34 W. Va. 217; Den- Scliumacker, 18 Colo. 433, 33 Pac. 

nett V. Dennett, 44 N. H. 531; Stew- 175; Van Deusen v. Sweet, 51 N. Y. 

art V. Flint, 59 Vt. 144, 8 Atl. 801; 378; In re De Silver's Estate, 5 

Buswell, Insanity, § 393; Hammon, RawIe (Pa.) Ill; Farley v. Parker, 

Contracts, § 182; Pollock, Contracts 6 Or. 105. 
(6tli Ed.) 91. • 200 Turner v. Rusk, 53 Md. 65; 

187 Hammon, Contracts, § 186; 9 Nlchol v. Thomas, 53 Ind. 42; Gih- 

Am. & Eng. Bnc. Law (2d Ed.) 119; son v. Soper, 72 Mass. (6 Gray) 279, 

71 Am. St. Rep. 431, note to Flach 66 Am. Dec. 414; Henry v. Fine, 23 

V. Gottschalk Co. Ark. 417; Crawford v. Scovell, 94 

i98Hovey v. Hobson, 53 Me. 451, Pa. 48, 39 Am. Rep. 786. 
89 Am. Dec. 705; New England Loan 201 Gibson v. Soper, 72 Mass. (6 

& Trust Co. V. Spitler, 54 Kan. 560, Gray) 279, 66 Am. Dec. 414; Halley 

38 Pac. 799; Wait v. Maxwell, 22 v. Troester, 72 Mo. 73 ; Moore v. Her- 

Mass. (5 Pick.) 217, 16 Am. Dec. shey, 90 Pa. 196. 
391; Thorpe v. Hanscom, 64 Minn. 202 Beverley's Case, 4 Coke, 123 b; 



§ 21 PERSONAL CAPACITY OF PARTIES. 201 

The question wlietlier a grantor can assert the invalidity of his 
conveyance for want of mental capacity without returning the 
consideration received, as to which the courts are not in agree- 
ment, will not ordinarily arise in the ease of a lease, since the con- 
sideration is usually paid, not at the time of taking the lease, but, 
by means of rent, pari passu with the enjoyment of the property, 
and the effect of the avoidance of the lease is, while depriving the 
lessee of the possession and enjoyment of the property, also to re- 
lieve him from liability for rent. 

(2) As lessees. A lease to a person wanting in mental capacity 
to understand the nature and merits of the transaction presum- 
ably vests the leasehold interest in him, subject to the possibility 
of its repudiation either by him on regaining his faculties, or by 
his guardian or committee, or personal representative.^oa In 
many jurisdictions, however, provided the lessor acted in good 
faith in making the lease, the lessee cannot avoid the lease, and so 
free himself from liability for rent, without first paying all arrears 
of rent then due, and so placing the lessor in statu quo.^°* 

That a party to a lease Is, at the time of its execution unable, 
by reason of temporary intoxication, to understand the nature or 
merits of the transaction, is no doubt ground for the avoidance 
of the lease by him or his representatives to the same extent as 
if he had been insane at the time of its execution.^os 

d. Oorparations — (1) Power to make or take lease. A pri- 
vate corporation may make a lease of its property, provided its 
purpose in so doing is not foreign to the object for which it is 
chartered, and it thereby violates no charter or statutory restric- 
tion or rule of public policy .^o® A corporation of a quasi public 

Northwestern Mut. Fire Ins. Co. v. Am. & Eng. Enc. Law (2d Ed.) 399; 

Blankenship, 94 Ind. 535; Hunt v. Hammon, Contracts, § 183. 

Rabitoay, 125 Mich. 137, 84 N. W. zoe Simpson v. Directors of West- 

59; McAnaw v. Tiffin, 143 Mo. 667, minster Palace Hotel Co., 8 H. L. 

45 S. W. 656. Cas. 712; Plant v. Macon Oil & Ice 

zossee Co. Litt. 2 b; 2 Blackst. Co., 103 Ga. 666, 30 S. B. 567; Nye 

Comm. 291; Concord Bank v. Bellis, v. Storer, 168 Mass. 53, 46 N. B. 402; 

64 Mass. (10 Cush.) 276; Campbell Temple Grove Seminary v. Cramer, 

v. Kuhn, 45 Mich. 513, 8 N. W. 523, 98 N. Y. 121; Phillip v. Aurora 

40 Am. Rep. 479. Lodge, 87 Ind. 505; Ardesco Oil Co. 

2»* See Hammon, Contracts, § 192, v. North American Oil & Min. Co., 

and cases there cited. 66 Pa. 375; People v. Pullman's Pal- 

aosBuswell, Insanity, § 393; 17 ace Car Co., 175 111. 125, 51 N. B. 



202 CREATION OF THE EELAT'ION. § 21 

character, however, such as a railroad company, unless expressly- 
authorized by its charter or legislative act, cannot lease property 
necessary to the conduct of its business, thereby disabling itself 
from performing the duties which it owes to the public,^'*^ though 
it may lease parts of its property not appropriated to public 
use.^^"* Likewise, a municipal corporation, while it may lease 
property belonging to it of a private nature, cannot lease that 
which has been devoted to public use and which it holds in trust 
for the public^os 

A corporation, whether public or private, may take a lease of 
property so far as this may be a proper means of carrying out the 
purposes for which it was created, and it will be bound by coven- 
ants on its part to be performed so far as these may be usual or 
proper, and not prohibited by its charter, such as a covenant to 
pay rent, to repair, or to keep the premises insured.^i" 

A lease by a corporation is not invalid because by its terms it 
is to run for a period continuing beyond that fixed for the dura- 
tion of the lessor's charter ,211 and no doubt the same may be said 
of a lease to a corporation which is to endure beyond the life of 
the latter. This must be so, since any other view would neces- 
sarily involve the invalidity of a conveyance in fee by or to a cor- 
poration merely because the corporation is not to have perpetual 
existence.212 A lease to a corporation not yet incorporated is 
void.213 

(2) Effect of ultra vires lease. Regarding a lease as a eonvey- 

664, 64 L. R. A. 366; Bartholomew U. S. 514, 40 Law. Ed. 515; Abby v. 

V. Derby Rubber Co., 69 Conn. 521, Billups, 35 Miss. 618, 72 Am. Dec. 

38 Atl. 45, 61 Am. St. Rep. 57. 143; Crawford v. Longstreet, 43 N. 

ao' Thomas v. West Jersey R. Co., J. Law, 325 ; Brewer & Hoffmann 

lai V. S. 71, 25 Law. Ed. 950; Cen- Brew. Co. v. Boddie, 181 111. 622, 55 

tral Transp. Co. v. Pullman Palace N. E. 49; Davies v. City of New 

Car Co., 139 U. S. 24, 35 Law. Ed. York, 83 N. Y. 207; Halbut v. For- 

55; Brunswick Gaslight, Co. v. rest City, 34 Ark. 246; Fitton v. 

United States Gas, Fuel & Light Co., Hamilton City, 6 Nev. 196; Wade v. 

.85 Me. 532, 27 Atl. 525; 1 Clark & Newbern, 77 N. C. 460. 
Marshal, Corporations, 442. 211 Tate v. Neary, 52 App. Div. 

208 Baldwin, Railroad Law, 462. 78, 65 N. Y. Supp. 40. 

209 2 Dillon, Mun. Corp. §§ 575, 212 See Nlooll v. Railroad Co., 12 
580; 3 Abbott, Mun. Corp. p. 2196. N. Y. (2 Kern.) 121. 

210 1 Clark & Marshall, Corpora- 213 Utah Optical Co. v. Keith, 18 
tions, §§ 141, 188 (d); Jacksonville, Utah, 464, 55 Pac. 155. 
M. P. R, & Nav. Co. V. Hooper, 160 



§ 21 PERSONAL CAPACITY OF PARTIES. 203 

ance, which it primarily m,^^* the question arises whether the 
making of an ultra vires lease can in any way affect the lessor's 
right to the possession of the premises. An ultra vires convey- 
ance by or to a corporation has usually been regarded as valid to 
transfer the title, and as open to objection only by the state,^!^ 
and such a rule would, it seems, apply to a conveyance by way of 
lease as well as to one in fee simple. An exception to the above 
rule exists in the case of property vested in a corporation for a 
public or quasi public use, and a conveyance of such property by 
the corporation has been regarded as absolutely void on account 
of the possible resulting injury to the public. This principle has 
been applied in the case of an ultra vires lease by a public cor- 
poration.216 The cases are, however, not entirely clear in regard 
to the rights of the corporation lessor to recover possession of the 
property from one holding under such an invalid lease. It would 
seem that, the lease being invalid as detrimental to the public, the 
possession of the property should be restored immediately to the 
lessor so as to avoid such public detriment, and that the courts 
will do this has been judicially asserted.^i^ But it was decided in 
the supreme court of the United States that, in such case, the cor- 
poration lessor, being in pari delicto with the lessee, was not en- 
titled to the aid of equity to obtain a cancellation of the lease.^^^ 
It has been suggested that perhaps the court, though denying the 
lessor any relief in equity, might sustain an action at law by the 
lessor to recover possession from the lessee, since in such an action 
the making of the illegal lease need- not appear from the plaintiff's 
pleadings or evidence.^i^ There are cases at least suggesting that 
the lessor corporation cannot re-enter and take possession from 
the lessee without process of law.220 But conceding that, by rea- 

2Hi See ante, § 16. ==i' Memphis & C. R. Co. v. Gray- 

215 See Clark & Marshall, Corpora- son, 88 Ala. 572, 7 So. 122. 

tions, §§ 228, 231. ^s St. Louis, V. & T. H. R. Co. v. 

216 Thomas v. West Jersey R. Co., Terre Haute & I. R. Co., 145 U. S. 
101 U. S. 71, 25 Law. Ed. 950; Penn- 393, 36 Law. Ed. 738. 

sylvania R. Co. v. St. Louis, A. & T. 219 See an article on "Utra Vires 

R. Co., 118 U. S. 290, 30 Law. Ed. 83; Leases by Corporations," by Edward 

Central Transp. Co. v. Pullman Pal- Avery Harriman, Esq., 14 Harv. 

ace Car Co., 139 U. S. 24, 35 Law. Law Rev. 332, an admirable dis- 

Ed. 55; Oregon R. & Nav. Co. v. cussion of the subject. 

Oregonian R. Co., 130 U. S. 1, 32 Law. 2210 American Union Tel. Co. v. 

Ed. 837. Union Pac. R. Co., 1 McCrary, 188, 



204 CREATION OF THE RELATION. | 21 

son of the invalidity of the lease, the lessor, and not the lessee, 
is entitled to possession, it would seem that, in those jurisdictions 
in which the right of one entitled to possession to enter on the 
wrongful possession is reeognized,^^^ the lessor would be at liberty 
to enforce his rights in that manner.^^^ 

In so far as the making or the taking by a corporation of a con- 
veyance by way of lease may be -ultra vires, any covenants entered 
into by the parties in connection with the lease, the "covenants 
of the lease," as' it is usually expressed, would seem to be abso- 
lutely void and unenforcible.^^* In accordance with this view it 
has been held that, even though the lessee named in an ultra vires 
lease by a corporation occupies thereunder, there can be no recov- 
ery of rent,22* and a like holding has been made in the case of a 
lease to a corporation without power to accept it.^^^ In some 
jurisdictions, however, a lessee who has occupied under an ultra 
vires lease by a corporation has been regarded as precluded from 
asserting the invalidity of the lease,^^® and the same principle has 
been applied as against a corporation lessee so as to preclude it 
from asserting, in defense to a claim for rent, that it had no power 

1 Fed. 745; Western Union Tel. Co. Louis, A. & T. R. Co., 118 U. S. 290, 

V. Burlington & S. W. R. Co., 3 Mc- 30 La-w. Ed. 83. 

Crary, 130, 15 Fed. 863. 228 City of Helena v. Turner, 36 

221 See post, § 215. Ark. 577; WoodrufE v. Erie R. Co., 

222 See 14 Harv. Law Rev. at p. ^^ N. Y. 609; Bath Gas Light Co. r. 
3^2 Clafey, 151 N. Y. 2i, 45 N. E. 390, 

", „ ™. -nr J. T „ 36 L. R. A. 664; Appeal of North- 

223 See Thomas v. West Jersey R. , ^ ^ ' 

-„. „ ^ „.. „- ^ ^, „.-„ hampton County, 30 Pa. 305; Farm- 
Co., 101 U. S. 71, 25 Law. Ed. 950; 1, ., ^ ', „ , 4. ^ ™ 

ers Deposit Nat. Bank v. Western 

Bast St. Louis Connecting R. Co. v. Pennsylvania Fuel Co., 29 Pa. 

Jarvis, 34 C. C. A. 639, 92 Fed. 735; guper. Ct. 69. 

Brunswick Gaslight Co. v. United in Rector v. Hartford Deposit Co., 

Gas, Fuel & Light Co., 85 Me. 532, 190 m. 380, 60 N. E. 528, it was 

27 Atl. 525. decided that in an- action hy a cor- 

25* Oregon R. & Nav. Co. v. Ore- poratlon for rent of part of a build- 
gonian R. Co., 130 U. S. 1, 32 Law. ing erected by it, another part of 
Ed. 837; Central Transp. Co. v. which was occupied by the corpor- 
Pullman Palace Car Co., 139 U. S. ation itself, it could not be asserted 
24, 35 Law. Ed. 55; Cox v. Terre in defense that it had abused its 
Haute & I. R. Co., 66 C. C. A. 433, corporate powers in erecting a 
133 Fed. 371; Brunswick Gaslight larger building than it needed, this 
Co. V. United Gas, Fuel & Light being a question which could prop- 
Co., 85 Me. 532, 27 Atl. 525. erly be raised only in a direct pro- 

225 Pennsylvania R. Co. v. St. ceeding by the state. 



§ 22 OFFICIAL CAPACITY OF PARTIES. 205 

to take the lease under whicii it occupied.^*'' These diverse decis- 
ions are ordinarily but applications of two diverse rules which 
have been adopted in the various jurisdictions in regard to the en- 
forcement of ultra vires transactions as against one who has re- 
ceived full benefits thereunder.^^s ' 

In one case at least, it has been asserted that while a corporation 
lessor cannot recover rent under the covenants of an ultra vires 
lease, it may recover "upon an implied agreement to pay a reason- 
able rent, "22® referring to the doctrine, quite generally accepted, 
that if an ultra vires contract is performed by one of the parties, 
that party may disaffirm the contract and sue to recover, as on a 
quantum mei-uit, the value of the benefit actually received by the 
other.230 in reference to this view, however, it may be remarked 
that the doctrine referred to has ordinarily been applied in cases in 
which there had been a payment of money, a furnishing of goods 
or other personal property, or the doing of work and labor, under 
the void contract, and in all these cases there is a right of recov- 
ery on the theory of quasi contract, entirely irrespective of the 
illegal contract. But a right of recovery for the use and occupa- 
tion of land upon the theory of quasi contract has ordinarily been 
denied,23i and consequently the right to recover a "reasonable 
rent ' ' in such ease seems most questionable. 

§ 22. The parties to a lease — Official capacity, 
a. Trustees. Even without any express authority to that 

227 Camden & A. R. Co. v. May's to the lessee, on the theory, it ap- 

Landing & E. H. C. R. Co., 48 N. J. pears, on which recovery in quasi 

Law, 530, 7 Atl. 523; Heims Brew, contract is ordinarily allowed at 

Co. V. Flannery, 137 111. 309, 27 N. law, that one party shall not be 

E. 286. allowed to enrich himself unjustly 

22S See Clark & Marshall, Corpora- at the expense of another. The 

tlons, § 211 et seq. opinion has been referred to as sup- 

329 Brunswick Gaslight Co. v. porting the view that "the lessor 

United Gas, Fuel & Light Co., 85 should recover from the lessee the 

Me. 532, 27 Atl. 525. value of the use and occupation of 

In Pullman's Palace Car Co. v. the land from the time of the repu- 

Central Transp. Co., 171 U. S. 138, 43 diation of the lease" (14 Harv. Law. 

Law. Ed. 108, there was an ultra Rev. 340), but this appears ques- 

vires lease, so called, of personal tionable. 

property, and the lessor was allowed ^o 1 Clark & Marshall, Corpora- 

to recover, in equity, the value of tions, § 215 (b) ; Hammon, Con- 

the property together with the earn- tracts, 225. 

ings which had accrued therefrom 231 See post § 302, at note 35. 



206 



CREATION OF THE RELATION. 



22 



effect in the instrument creating the trust, a trustee who is 
charged with the receipt and disposal of the income has been re- 
garded as authorized to make leases for reasonable periods and at 
reasonable rents, this being necessary for the purpose of obtain- 
ing an income from the property .^^^ 

It has been decided in New York, having reference to some ex- 
tent to the provisions of the local statutes in regard to trusts, that 
a lease made by a trustee, so far as it may extend beyond the term 
of the trust, is invalid, unless such a lease is ' ' expressly ' ' author- 
ized by the instrument creating the trust,^^^ even an express 
power to lease, given in general terms, being regarded as insuf- 
ficient to validate such a lease.^s* There is, likewise, in Pennsyl- 
vania a decision apparently to the same effect.^^'' There are on 
the other hand decisions in which the power of a trustee to make 
a lease extending beyond the term of the trust has been fully 



232NayIor v. Arnitt, 1 Russ. & M. 
501; Bowes v. East London Water- 
works Co., Jac. 324; Pitzpatrick v. 
Waring, 11 L. R. Ir. 35; Miller v. 
Smythe, 92 Ga. 154, 18 S. B. 46; 
Hutcheson v. Hodnett, 115 Ga. 990, 
42 S. E. 422; Hale v. Hale, 146 111. 
227, 33 N. E. 858; City of Richmond 
V. Davis, 103 Ind. 449, 3 N. E. 130; 
Hedges v. Riker, 5 Johns. Ch. (N. 
Y.) 163; Greason v. Keteltas, 17 N. 
Y. 491; Corse v. Corse, 144 N. Y. 569, 
39 N. E. 630; Newcomb v. Ketteltas, 
19 Barb. (N. Y.) 608; Black v. Llgon, 
Harp. Eq. (S. C.) 205; In re Hubbell 
Trust, 135 Iowa, 637, 113 N. W. 512. 

In Wood V. Patteson, 10 Beav. 541, 
nnd In re Shaw's Trust, L. R. 12 
Eq. 124, there are statements appar- 
ently to the effect that a trustee can- 
not make a lease without express 
authority to that effect. These 
cases are commented on In Fitzpat- 
rick v. Waring, 11 L. R. Ir. 35. 
And see Farwell, Powers (2d Ed.) 
593; Lewin, Trusts (11th Ed.) 
727; Underbill, Trusts (5th Ed.) 
260. which all recognize the power 



of a trustee to make a reasonable 
lease. 

2S3 In re McCaffrey, 50 Hun, 371, 
3 N. Y. Supp. 96; In re Armory 
Board, 29 Misc. 174, 60 N. Y. Supp. 
882. 

In Gomez v. Gomez, 147 N. Y. 195, 
51 N. E. 420, the lease was held to 
bind the infant remaindermen after 
the end of the trust, it having been 
sanctioned by the court, and the 
court having power to authorize the 
leasing of Infants' lands. 

234 In re Armory Board, 29 Misc. 
174, 60 N. Y. Supp. 882; In re One 
Hundred & Tenth St., 81 App. Wv. 
27, 81 N. Y. Supp. 32. See as to the 
possible effect of the statutory pro- 
vision of the Real Prop. Law 1896, 
§86, Weir v. Barker, 104 App. Div. 
112, 93 N. Y. Supp. 732. 

235 In Standard Metallic Paint Co. 
V. Prince Mfg. Co., 133 Pa. 474, 19 
Atl. 411, it was decided, without any 
discussion, that where a woman had 
an equitable life estate, with, ap- 
parently, a legal remainder to her 



§ 22 OFFICIAL CAPACITY OF PARTIES. 207 

recognized, although the instrument creating the trust did not in 
terms authorize him to make such a lease.^se 

The question whether a trustee has power to make any leases 
at all, as well as whether he has power to make leases for a con- 
siderable length of time, is primarily a question of the intention 
of the creator of the trust, to be ascertained by a construction of 
the trust instrument as a whole, with reference to the surround- 
ing circumstances, such as the character of the property, the cus- 
tomary length of leases, the desirability of procuring a fair in- 
come, and the like. This, it is conceived, is what is meant by the 
statement that the trustee may make leases for "reasonable" 
periods, 237 a period being reasonable when a lease for such period 
appears to be essential or desirable for the purpose of effecting 
the purpose of the creator of the trust. That a particular lease 
may extend beyond the period of the trust is, it seems, merely one 
of the various circumstances to be considered in determining 
whether it is in accordance with the intention of the creator of 
the trust.238 The adoption of a positive* rule that the trustee has 
no power, unless so authorized in express terms, to make a lease 
extending beyond the term of the trust would seem to involve, in 

husband, a lease by the trustee eson v. Hodnett, 115 Ga. 990, 42 S. 

could not extend beyond the life of E. 422; Hlnes v. McCombs, 2 Ga. 

the wife. App. 675, 58 S. E. 1124. 

236 In Greason v. Keteltas, 17 N. Y. 237 See ante, note 232. 
491, it is apparently the opinion 238 in in re Hubbel Trust, 135 
of the court that the lease would be Iowa, 637, 113 N. W. 512, such a con- 
valid after the termination of the sideration was regarded as ground 
trust. The later New York cases for disapproving a lease for ninety- 
distinguished this case on the nine years. In the full and instruc- 
ground that the trust there in tive opinion of Ladd, J., it is said 
question was created before the Be- that "there is no reason for depart- 
vised Statutes. That the lease is ing from the elementary rule that 
binding on the persons entitled when the power to do something 
after the termination of the trust is is conferred, to do everything essen- 
in effect decided in Fitzpatrick v. tial to effectuate the object contem- 
Waring, 11 L. R. Ir. 35, and that plated is implied as incidental there- 
such is the case is clearly recog- to. In determining what terms are 
nized in Collins v. MacTavish, 63 reasonable, much necessarily de- 
Md. 166; Goddard v. Brown, 12 R. pends on the nature of the prop- 
I. 31. And that it may bind such erty, the customs of the locality, and 
persons is conceded In In re Hub- the conditions of the estate and the 
bell Trust, 135 Iowa, 637, 113 N. W. probable period of the trust." 
512. To the same effect, see Hutch- 



208 CREATION OF THE RELATION. | 22 

many cases, a violation of such intention as rendering impossible 
a lease for any length of time, free from liability to premature 
termination, and as so compelling the acceptance of a rent con- 
siderably less than the actual rental value of the property. Such 
a rule would, in the case of a trust which is to endure for a single 
life only, render it difficult, as regards some classes of property, 
to make any lease whatsoever. It may be remarked that, it being 
the duty of a trustee to make leases only in accordance with his 
power, he should, it seems, under the New York rule, insert in 
any lease made by him a "special limitation" terminating the 
lease upon the termination of the trust, unless he has "express" 
authority to make leases for a longer term. 

Conceding that a lease by the trustee would not be valid after 
the termination of the trust, a lease in terms to endure beyond 
that time has been recognized as valid until that time,^^^ this ac- 
cording with the rule that, where there is an excessive execution 
of a legal power of leasing, the lease will be good for the period 
authorized by the power.^"*" 

There is a decision to the effect that a trustee, though author- 
ized to make a lease, has no power to make one with a covenant 
for renewal.2*i Whether, however, a trustee has power to make 
such a covenant should properly be regarded as a question of in- 
tention, to the same extent as the question whether he has power 
to make any lease whatever, and to assert broadly that a trustee 
never has such power is as incorrect as to say that he always has 
it. Accordingly it has been decided in particular cases that the 
language of the instrument creating the trust showed an intention 
that the trustee might make leases for ninety-nine years renewable 
forever.242 

2S9 In re one Hundred & Tenth sibly, it seems, have been differently 

St., 81 App. Div. 27, 81 N. Y. Supp. construed. 

32. See GrifEen v. Ford, 14 N. Y. In New York, the trustee having 

Super. Ct. (1 Bosw.) 123. no power to make leases to endure 

2*» Campbell v. Leach, Amb. 740; after the termination of the trust, 

Alexander v. Alexander, 2 Ves. Sr. a covenant for renewal can not be 

644; Sugden, Powers (8th Ed.) 519. enforced after that time. Gomez 

241 Bergengren v. Aldrich, 139 v. Gomez, 147 N. Y. 195, 41 N. B. 420. 

Mass. 259, 29 N. E. 667. Here there 2*2 Collins v. MacTavish, 63 Md. 

was an express power "to sell and 166; Prather v. Foote, 1 Disn. 

convey in fee simple or for any less (Ohio) 434. In Goddard v. Brown, 

estate." This language might pos- 12 R. I. 31, the court leaves It un- 



§, 22 OPFrCIAL CAPACITY OF PARTIES. . 209 

A power in the trustee to make leases at a "rack rent," that is, 
at the full annual value of the premises, does not, it seems, enable 
him to enter into a covenant to renew at a certain specified rent.^^^ 

A trustee has, it is said, no power to lease if it is a simple trust 
and the cestui que. trust is in possession, unless the latter consents 
to the lease.2** And it has been decided that, in such ease, a lease 
by the trustee enures to the benefit of the cestui que trust, so as to 
entitle the latter to assert the rights of a landlord,^^^ ^ view which 
must, it seems, be based on the theory that the trustee in the par- 
ticular ease, in making the lease, acted as his agent,^*® since the 
cestui que trust is otherwise in no legal privity with the lessee. 

A direction to the trustee to sell prima, fade precludes the im- 
plication of a power to lease."*''' But a trustee for the benefit of 
creditors has been held to ha\e a power to lease until he is in a 
position to make an advantageous sale.^** A provision that the 
trustee shall not "sell or dispose of" the trust property has been 
held not to preclude a lease for years.^*' ' 

An express power to lease given to the trustee should be exer- 
cised in accordance with the power.^so _^ power to make leases 
"for twenty-one years from the making thereof" does not justify 
a lease for twenty-one years to begin in futuro.^^^ And a power 
to lease "for the best rent attainable" obviously does not author- 
ize a lease for a less rent.^*^ In one state, however, it has been 
decided that, though a will authorizes the trustee to make leases 
only for ten years or less, equity may empower him to make a 

decided whether the power in that sis G€er v. Traders' Bank, 132 

case authorized covenants for re- Mich. 215, 93 N. W. 437. 

newal. ^*° In re Hubbell Trust, 135 Iowa; 

243 Salamon v. Sopwith, 35 Law 637, 113 N. W. 512. 

T (N S.) 826. 250. See Bowes v. East London Wa- 

2*4 See Lewin, Trusts (11th Ed.) terworks Co., 3 Madd. 375. Jac. 324; 

727; Hefferman v. Taylor, 15 Ont. ^^^ ^^ HaUett. 52 Law J. Ch. 804. 

' 48 Law T. (N. S.) 894. That this 

.^„ is so in the case of a legal power 

245 White y. Cannon, 125 111. 412, ^^ ^^^^ ^^^ ^^^ numerous cases 

17 N. E. 753. cited in Sugden, Powers, c. 18; Far- 

246 See Morgell v. Paul, 2 Man. & ^ell. Ptowers, c 17. 

R. 3;03. 251 GrifEen v. Ford, 14 N. Y. Super. 

247Eyans v. Jackson, & Sim. 217; Ct. (1 Boew.) 12S. 

In re Hoysradt, 20 Mise. 2,65, 45. N. 252Griffen v. Fo.rd, 14 N. Y. Super. 

Y. Supp. 841. Ct. (1 Bosw.> 123. 

L. and Ten. 14. 



210 CREATION OF THE RELATION. § 22 

lease for ninety-nine years, it appearing that otherwise the estate 
would be almost entirely unproductive.^s^ 

A general power to lease has been held not to authorize an oil 
and gas lease, the premises having been previously used only for 
agricultural purposes.254 g^t a power to manage and control the 
testator's estate according to the trustee's own best judgment and 
discretion, "the same as I could do myself, if living," has been 
regarded as authorizing a lease of unopened as well as opened 
mines.25^ 

A power given to trustees "to lease any portion of said real 
estate for such period, and upon such terms and conditions, as 
they shall think best" has been held to authorize leases for long 
terms of years, with provisions for the purchase of improvements 
made by the lessees, and for altering the rent from time to time 
by arbitration or appraisal,^^® and a power to change investments 
has been held to authorize a lease for ninety-nine years renewable 
forever,25T as has a power "to dispose of any of my real estate, 
in fee simple, or for a term of years, or otherwise, in as full and 
large a manner in every respect as I could myself, if living, "^ss 

There are numerous English cases bearing upon the validity of 
leases made by trustees of a charity, the general resxilt thereof 
being that such a lease will be supported if it can be shown to be 
reasonable and advantageous, or to accord with the intention of 
the founder of the charity, the presumption being that a lease 
made for an imusual length of term, having reference to the char- 
acter of the lease, is not a proper exercise of their powers.^^® And 

ass Marsh v. Reed, 184 111. 263, 56 254 Lanyon Zinc Co. v. Freeman, 

N. E. 306, afg. 64 111. App. 535. See 68 Kan. 691, 75 Pac. 995. See "Wood 

Denegre v. "Walker, 214 111. 113, 73 v. Patterson, 10 Beav. 541. 

N. B. 409, and case cited post, note ass Raynolds v. Hanna, 55 Fed. 

262. This decision would perhaps 783. And see Eley's Appeal, 103 .Pa. 

not be accepted in all jurisdictions. 300; Daly v. Beckett, 24 Beav. 114. 

As a general rule a court will sse Goddard v. Brown, 12 R. I. 31. 

not give a trustee powers other 257 Collins v. MacTavish, 63 Md. 

than those given him by the creator 166. 

of the trust, the court's proper sss Prather v. Foote, 1 Disn. 

sphere of action being merely to (Ohio) 434. 

approve and supervise the exercise 2S9 gee Lewin, Trusts (11th Ed.) 

by the trustee of those powers which 632. In Hill, Trustees, p. 464, it is 

have been given him. See Pearse v. said: ""With regard to the term to 

Baron, Jac. 158, as to a power to be granted, it may be laid down as 

make a lease for a limited term. a general rule (though subject to 



§ 22 OFFICIAL CAPACITY OF PARTIES. 211 

a failure to reserve a sxifficienf rent, or otherwise to obtain an 
adequate consideration, will be ground for setting aside such a 
lease, if the inadequacy be very considerable.^eo In one ease in 
this country it has been decided that the trustees of a charity may 
make a "perpetual lease, "^isi 

There are several decisions in this country as to the power of 
trustees to make leases, in which the fact that the trusts were for 
public and charitable purposes may have affected the decisions, 
though no emphasis is laid on this point. In one case it was held 
that the trustees of an educational fund, though forbidden to sell 
or alien the land belonging to the fund, could make a lease of 
vacant land for ninety-nine years, reserving no rent, the consider- 
ation taking the form of a gross sum to be paid in eight annual 
installments, this being in effect the only mode in which any in- 
come could be secured from the property, and valuable improve- 
ments having been made under the lease.^^^ j^^^ j^ ^^s been de- 
cided that where the trustees were directed to keep mines con- 
stantly leased upon leases not exceeding five years, and satisfac- 
tory tenants could not 'be obtained for so short a term, and such 
short leases would result in injury to the mines, equity would 
direct leases to be made for a longer term.^^s And where the 
trustees of land given for educational purposes were required by 
the terms of the gift to improve a lot with buildings for the pur- 
pose of teaching, the court approved a lease by them for ninety- 
nine years to a corporation which was prepared to erect additional 
buildings and to use them for school purposes, the original build- 
ings being put of repair and the trustees having no funds for the 
making of repairs.^^^ 

many exceptions) that it should be 262 Black v. Ligon, Harp. Eq. (S. 

(1) for years and not on lives, (2) c.) 205. 

not for more than twenty-one years, aes in re City of Philadelphia, 2 

or, in case of buildng leases, for ^^.^^^^ (p^.) 452. See remarks in 

ninety-nine years, (3) in posses- ^^^^^ ^^^^^^^ 33^ .^ reference to 

sion and not reversionary, and (4) ^^^ ^^^^^^^ ^ ^ ^^ ^^^^ 

-without any absolute covenant for 

renewal, still less for perpetual re- ®® ^^' ^™- 

In Appeal of Trustees of Proprie- 
newal. 

2«oLewin Trusts, 630; Hill, Trust- tors School Fund, 2 Walk. (Pa.) 37, 

ees, 464; 1 Piatt, Leases, 347 et sea. * mining lease for nine hundred and 

261 City of Richmond v. Davis, 103 ninety^nine years was upheld 
Ind. 449 3 N. B. 130. 26* Trustees of Madison Academy 



212 CREATION OP THE RELATION. § 22 

One of two or more cotrustees cannot, it lasts been decided, make 
a lease in bebalf of the others, the exercise of the deliberate judg- 
ment and discretion of all the trustees being necessary for this 
purpose. Furthermore, as is remarked in the same case, such a 
lease would frequently involve a violation of the statute of 
lrauds.265 

It has been decided in Georgia that the trust fund is liable to 
the lessee for failure to repair as required by the law of that 
state.266 Elsewhere it has been decided that if a person occupying 
a trust position makes a lease in behalf of the trust, he has no 
authority to insert a covenant for quiet enjoyment, and that he is 
himself personally liable for a breach of such a covenant,^'''' a 
view which is in accord with the general rule as to the liability 
of a person occupying such a position upon a covenant in a con- 
veyance by him.288 Accordingly, a trustee, in making a lease, 
should generally refrain from entering into personal covenants 
except against his own acts. 

A cestui que trust, not having the legal title, has no power to 
make a lease, and the trustee may evict the lessee as a tres- 
passer,2e9 unless it appears that in making the lease the trustee 
acted as agent for the trustee.^'^'' The lessee would, however, or- 
dinarily be precluded from questioning the title of the lessor in 
this as in other cases.^'^^ In view of the disability of the cestui que^ 
trust in this respect, and of the fact that a lease by the trustee 
alone may be questioned as being for an excessive period, or as 
being disadvantageous to the trust estate, it is desirable that the 
lessee procure the joinder of both the trustee and the cestui que 
trust. ^''^ In some jurisdictions, moreover, in view of the decisions; 

V. Board of Education of Richmond, Trustees, 282, 508; Rawle, Coven- 

16 Ky. Law Rep. 51, 26 S. W. 187. ants for Title, §§ 33-36. 

aes Winslow v. Baltimore & O. R. 269 i piatt, Leases, 123. 

Co., 188 U. S. 646, 47 Law. Ed. 635; 2to See Vallanee v. Savage, 7 Bing. 

Sinclair v. Jackson, 8 Cow. (N. Y.) 595; Howe v. Scarrot, 4 Hurl. & N. 

543. 723. 

266 Miller v. Smytlie, 92 Ga. 154, IS 2ti Blake v. l\)ster, 8- Term. R. 
S. E. 46. 487; Alchorne v. Goinme, 2 Bing. 54; 

267 Chestnut v. Tyson, 105 Ala. Dolby v. lies, 11 Adol. & E. 335.. 
149, 16 So. 723, 53 Am. St. Rep. 101. See post, § 78. 

See Greason v. Keteltas, 17 N. Y. 2^2 in 1 piatt. Leases, 124, it is 

491. said: "The trustee should 'demise- 

26S See Lewin, Trusts, 516; Hill, and lease,' and on the part of the- 



§ 22 OFFICIAl, CAPACITY OF PARTIES. 213 

to the effect that a lease by the trustee can endure only for the life 
of the trust, it is important to have the persons who are to take 
after the ternjination of the trust join in the lease, if they are mi 
juris at the time of its execution. 

A lease may be made to one as trustee for another, and in such 
ease he may be made personally liable thereunder,^^® while the 
cestui que trust is exempt from liability on any of the covenants, 
although he goes into possession, there being no privity between 
him and the landlord.^^* 

b. Executors and suilministrato]:^ — (1) In absence of ex- 
press authority. Apart from statute, unless authority for the 
purpose is expressly given by decedent's will, an executor or ad- 
ministrator, having no rights in the decedent's real property, has 
no poAver to make a lease of land in which the decedent had an 
estate of freehold.^^^ Chattels real, however, including terms for 
years and interests from year to year, pass to the executor, and of 
these he may make leases or subleases, provided this seems for the 
advantage of the estate and a judicious mode of administering the 
assets.^''® An option of purchase in such a sublease is bad, it has 

cestuis que trust, words of demise 274 Walters t. Northern Coal MIn. 

should be Inserted, as well as words Co., 5 De Gex, M. & G. 629.; Ramage 

of consent and approbation. If -y^ Womack [1900] 1 Q. B. 116. 

there be several cestuis que trust, ^js Yarborough v. Ward, 34 Ark. 

the concurrence of all should be 304; Rutherford's Heirs v. Clark's 

obtalned,-for if a trustee under a ^^^^^^ ^^ ^^ ^^ ^^^^^ 27; Lee v. 

will concur with some but not all . „, ^, „ „„ ^ 1^, ■, 1, 

of the cestuis que trust in making ^^^' ^4 N. C. 70; In re Merkels 

a lease, which recites part only of Estate, 131 Pa. 584, 18 Atl. 931; Stev- 

the trusts, the lessee cannot hold in ens v. Stevens, 69 Hun, 332, 23 N. 

oppositon to the other cestuis que Y. Supp. 520; Murphy v. Thomas, 41 

trust not parties to the lease. The ^iss. 429. 

circumstance of the recital render- It has been held that the adminis- 
Ing it Incumbent on him to make trator may lease land for the pur- 
further inquiry, he Is considered as purpose of paying debts, if the heirs 
havipg had notice of the title of consent thereto. Ashley v. Young, 
the other claimants under the will." "3 Miss. 12D. 29 So. 822. 
Citing Malpas v. Ackland, 3 Russ. "o Bac. Abr., Leases (I) 7; Keat- 
273, in which case the lease was for ing v. Keating, Lloyd & G. t. Sugd. 
slxtyone years, and there was no US; Hackett v. McNamara, Lloyd & 
suggestion that it was within the G. t. Plunk. 283; Drohan v. Drohan, 1 
powers of the trustee. Ball & B. 185 ; Magrane v. Archbold, 

273 Wise V. Perpetual Trustee Co. 1 Dow, 107. 
[1903] App. Cas. 139. 



214 CREATION OF THE RELATION. § 22 

been held, because it prevents a sale to any person other than the 
lessee.2^^ 

One of two or more executors or administrators may alone make 
a valid sublease, which, although not purporting to be the act of 
all, will be as valid as if the act of all.^'^* 

If a term of years is specifically bequeathed, the legal title vests 
in the legatee upon the executor 's assent to the bequest,*''^^ and 
thereafter the legatee could eject one holding under a lease made 
by the executor. For this reason a person proposing to take a 
lease from an executor should ascertain whether the property has 
been specifically bequeathed, and, if such is the case, he should 
obtain the legatee's concurrence in the lease.^^'' 

Even though an executor make a lease without any authority 
or power so to do, it does not seem that the lessee could assert 
this fact in defense to a claim for rent, the case being similar to 
that of any lease made by one having no title to the property.^*^ 

For the reason that an executor or administrator has no power 
to bind tlie estate by a contract not arising from any obligation on 
the part of the decedent, it has been held that if the administrator 
exercises an option of renewal, contained in a lease to his intes- 
tate, he is personally liable for the rent thereunder.^ss 

(2) Express powers. Occasionally the executor is, by the 
decedent's will, given power to make leases, as he may be given 
power to make sales.^®^ Such a power, if there is given to the 
executor no interest in the property, is a "naked" or "bare" 
power,28* while, if the legal title is given to him, he is in effect a 
trustee, and he has a power "coupled with an interest. "^^^ In 
the latter case the executor will be the landlord of the lessee, but 
not in the former case, since the reversion is not in him but in the 

sTT Oceanic Steam Nav. Co. v. ssi See Gregory v. Michaels, 1 Misc. 

Sutherberry, 16 Ch. Div. 236. 195, 20 N. Y. Supp. 877, and post, 

27spannel v. Fenn, Cro. Eliz. 347; § 78 g. 

Simpson v. Gutteridge, 1 Madd. 282C]iisholm v. Toplitz, 82 App. 

609; Doe d. Hayes v. Sturges, 7 Div. 346, 82 N. Y. Supp. 1081; Id., 

Taunt. 217. See Woerner, Adminis- 178 N. Y. 599, 70 N. E. 1096. 

tration, § 34. 283 See 1 Tiffany, Real Prop. § 273. 

279 Doe d. Saye v. Guy, 3 East, 2S4Killam v. Allen, 52 Barb. (N, 
120; 2 Williams, Executors (9th Y.) 605; Morse v. Morse, 85 N. Y. 53. 
Ed.) 1231. 285 1 Tiffany, Real Prop. §§ 276, 

280 See 1 Piatt, Leases, 370. 279. 



§ 22 OFFICIAL CAPACITY OP PARTIES. 215 

heir or devisee, and the latter is the landlord, ^ss the lease taking 
effect as if made by the decedent. 

A power in the executor to make leases has been inferred from 
a direction as to the disposition to be made by him of the rents 
from the land,287 and a power "to sell and dispose of so much 
of the real estate as may be necessary to fulfil the will" was held, 
under the circumstances, to authorize a lease by him.^s* "Where 
the widow was given for life such portion of the land as she de- 
sired, and the executor was directed to lease "the balance," he 
was regarded as having authority to lease all the land after the 
widow's death.289 

(3) Statutory powers. In a few states the statute expressly 
authorizes the executor or administrator to make leases for pur- 
poses of administration until a final settlement of the estate.^^" 
A lease not made "at public outcry" as required by the statute 
has been held to be ineffective.^^! Occasionally the executor or 
administrator is by statute authorized to lease by the direction 
or with the approval of the probate court.^^s 

In a number of states the executor or administrator is by stat- 
ute given the right to possession of the real estate as against 
devisees and heirs until the settlement of the state, ^^^ and under 
these statutes he would, it seems, have a right to make leases sub- 
ject to termination upon the settlement of the estate.^^* 

286 Page V. Davidson, 22 111. 112. one entering under a void lease, pay- 

2S7 McCall V. Peachy's Adm'r, 3 ing a yearly rent, becomes a tenant 

Munf. (Va.) 288. from year to year. 

288 Hedges v. Riker, 5 Johns. Ch. asi Chighizola v. Le Baron, 21 
(N. Y.) 163. -A-'a. 406; Martin v. Williams, 18 

289 Doe d. Hoyle v. Stowe, 13 N. Ala. 190. 

C. (2 Dev. Law) 318. 292 See California Code Civ. Proc. 

290 A-lalama Code 1907, § 2618; § 1579; Burns' Ann. St. Indiana, § 

Michigan 2 Comp. Laws 1897, § 2524; Maine Rev. St. 1903, c. 73 § 

9354; Texas Rev. St. 1895, art. 2105. 1; Miss. Code 1906, § 2071; New 

The Michigan statute authorizing YorTc Code Civ. Proc. § 2760. 
a lease by the executor from year 293 See 2 Woerner, Administra- 
te year, it was held that a lease for tion, § 337; 11 Am. & Bng. Enc. Law 
two years was void, but that "the (2d Ed.) 1037. 

void lease for two years created a ten- 294 See Smith v. Park, 31 Minn, 

ancy from year to year, as In ordinary 70, 16 N. W. 490; Doolan v. McCauley, 

cases." Grady v. Warrell, 105 Mich. 66 Cal. 476, 6 Pac. 130; Burbank v. 

310, 63 N. JV. 204. Presumably the Dyer, 54 Ind. 392. That the execu- 

court refers to the general rule that tor has no power to lease after the 



216 CREATION OF THE RELATION. § 22 

c. Guardians — (1) Of infants. A guardian "by nature" 
or "for nurture," who has the custody of the infant's person 
only, and not of his property, has no power to make a lease of the 
infant's land,295 except perhaps at will.^^^ A guardian having 
charge of the infant's property, on the other hand, may make 
leases thereof, and, apart from a statutory provision to the con- 
trary, such guardian, if a guardian in socage, a testamentary 
guardian, or a guardian hy election of the infant, has power to 
make a lease without authorization from any court, he having 
not a bare authority but an interest.^^^ A guardian appointed by 
a court of chancery is, it has been said, in the position of a mere 
receiver, 2«8 and cannot make leases without the sanction of the 
eourt,^®^ but it has on the other hand been said that he may make 
leases-^**" It would seem that a guardian appointed by a court 
of probate, by authority of statute, would be, in this regard, in 
the same position as if appointed by a court of chancery, in the 
absence of a specific provision in the statute as to the making of 
leases by him.^"! There are several cases in which the authority 
of a guardian to make leases is asserted in general terms, and in 

settlement of the estate, see Jack- Johns. Ch. (N. Y.) 150, 11 Am. Dec. 

son V. O'Rorke, 71 Neb. 418, 98 N. "W. 441; Emerson v. Splcer, 46 N. Y. 

1068. 594. See 1 Piatt, Leases, 371. 

205 May V. Calder, 2 Mass. 55; 298 per Patteson J., in Rex v. 

Darby v. Anderson, 1 Nott & McC. Sutton, 3 Adol. & E. 597. 

(S. C.) 369; "Magruder v. Peter, 4 =<"' 1 Piatt, Leases, 380, citing Mc- 

Gill & J. (Md.) 323; Ross v. Cobb, Pherson, Infancy, 106; Woerner, 

17 Tenn. (9 Yerg.) 463; Indian Land Guardianship, 47. 

& Trust Co. V. Shoenfelt, 5 Ind. T. sooit is stated oMter by Chancel- 

41, 79 S. W. 134. lor Kent in Field v. Schieffelin, 7 

In Maxwell v. Urban, 22 Tex. Civ. Johns. Ch. (N. Y.) 150, 11 Am. Dec. 

App. 565, 55 S. W. 1124, it Is held 441, that a chancery guardian has the 

that a lease by a natural guardian same power in this respect as a 

expires on his death, thus appar- guardian in socage, 

ently conceding the validity of Such soi a statutory provision that the 

a lease. guardian appointed by the probate 

296 Pigot V. Garnish, Cro. Eliz. court shall have the same powers 

678, 734. as a testamentary guardian or 

287 Osborn v. Carden, 1 Plowd. guardian in socage removes any pos- 

293; Wade v. Baker, 1 Ld. Raym. sible disability in this regard. See 

130; Rex v. Inhabitants of Oakley, Thacker v. Henderson, 63 Barb. (N. 

10 East, 491; Hutchins v. Dresser, 26 Y.) 271; Holmes v. Seeley, 17 Wend. 

Me. 76; Richardson v. Richardson, (N. Y.) 78; Pond v. Curtiss, 7 Wend. 

49 Mo. 29; Field v. Schieffelin, 7 (N. Y.) 45. 



I 22 OFFICIAL CAPACITY OF PARTIES. 217 

which, it seems, the guardian in question may have been appointed 
by a court of chancery or a probate court, without any clear 
showing in this regard.^oa 

Quite frequently there are express statutory provisions as to 
leases by guardians, ordinarily providing for the approval thereof 
by the court.sos It has been decided that a statute authorizing the 
guardian to lease the ward's land on such terms, and for such 
length of time as the court may approve, does not invalidate a 
lease executed by the guardian without such approval, but ren- 
ders it voidable merely on the court's disapproval.so* 

A guardian having power to lease without authority of court 
may make a lease reserving a share of the crops as rent,^*'^ but it 
has been held that' he has no right to make an "oil" or "gas" 
lease, since this involves the permanent withdrawal of a part of 
the corpus of the estate.^*"' 

In Michigan, provisions that the pointed by the court, and ' having 
guardian appointed by the probate given bond, may lease his ward's 
court "shall have the care and man- land without the order of the court." 
agement of the estate," and shall No authority is cited, 
"dispose of and mortgage all such In Talbot v. Provine, 66 Tean. (7 
estate and effects according to law," Baxt.) 502, It was held that the 
and shall 'pay all just debts, * • * Chancery court could authorize or 
out of his personal estate and confirm a lease made by a guardian 
the income of his real estate, if if to the advantage of the ward. It 
sufficient, and if not, then out of does not appear how the guardian 
his real estate, upon obtaining in this case was appointed, 
license for the sale thereof" (Comp. 3«3 See e. g.. Mills' Ann. St. Colo- 
St. 1897, §§ 8703, 8704, 8717), were rado 1891, | 2081; Maine Rev. St. 
held to authorize the guardian to 1903, c. 73, § 1; Massachusetts Rev. 
lease without authority from the Laws 1902, c. 146, § 29; Ohio Rev. 
court. Kinney v. Harrett, 46 Mich. St. 1906, f 6295 et &eii.;Rhode Is- 
87, 8 N, W. 708. land Gen. Laws 1906, c. 196, § 32; 

302 Graham v. Chatoque Bank, 44 Shannon's Code, Tennessee 1896, | 
Ky. (5 B. Mon.) 45; Weldon v. 4283; Texas Rev. Civ. St. art. 2633; 
Lytle, 53 Mich. 1, 18 N, W. 533; Yirgmia Code 1904, §J 2615-2621; 
Thacker v. Henderson, 63 Barb. (N. West Virginia Code 1906, § 3228 et 
Y.) 271; Hughes' Appeal, 53 Pa. seq.; Wisco»Mim Rev. St. 1898, § 3991. 
500; Stoughton's Appeal, 88 Pa. 198; w* pield v. Herrick, 101 111. 110. 
Windon v. Stewart, 43 W. Va. 711, Compare Bates v. Dunham, 58 Iowa, 
28 S. E. 776. 308, 12 N. W. 309. 

In Indian Land & Trust Co. v. sob Weldon v. Lytle, 53 Mich. 1, 
Shoenfelt, 5 Ind. T. 41, 79 S. W. 134, 18 N. W. 533. 

it is said that "a general guardian soe Stoughton's Appeal, 88 Pa. 198; 
at common law, having been ap- Wilson v. Youst, 43 W. Va. 826, 28 



218 



CREATION OF THE RELATION. 



22 



The guardian has, at most, power to make a lease extending 
only to the time of the ward's majority, and if he undertakes to 
make one extending beyond that time it may be avoided by the 
ward upon coming of age.*'^^ If the guardian's authority expires 
by law before the ward becomes of age, the lease may be avoided 
by another guardian then appointed.^"^ A lease by a guardian 
for a term extending beyond the term of the guardianship has 
been asserted to be absolutely void,^"^ but it seems rather to be 
voidable merely, so that the ward may, on coming of age, adopt 
it if he thinks fit.sio 

A guardian making a lease of his ward's property is not, it 
has been held, liable as upon an implied covenant upon the les- 
see's eviction.^ii The ward is not liable upon a stipulation in the 
lease by the guardian to pay the value of improvements made by 
the lessee,3i2 but the guardian has been held liable upon such a 
stipulation, although made with the approval of the court,'** and 
if he undertakes to enter into a covenant for quiet enjoyment he 
is personally liable thereon.^** 



S. E. 781; Haskell v. Sutton, 53 
W. Va. 206, 44 S. B. 533. 

sOTWatklns v. Peck, 13 N. H. 
360, 377; Graham v. Chatoque Bank, 
44 Ky. (5 B. Mon.) 45; Jackson v. 
O'Rorke, 71 Neb. 418, 98 N. W. 1068. 

308 Snook v. Sutton, 10 N. J. Law 
(5 Halst.) 133; Emerson v. Spicer, 
46 N. Y. 594; In re Stafford, 3 Misc. 
106, 22 N. Y. Supp. 706. 

309 Ross V. Gin, 4 Call (Va.) 250; 
Roe d. Parry v. Hodgson, 2 Wils. 129. 

310 Van Doren v. Bveritt, 5 N. J. 
Law (2 South.) 460, 8 Am. Dec. 615; 
People V. Ingersoll, 20 Hun (N. 
Y.) 316, 58 How. Pr. 351; Graham 
V. Chatoque Bank, 44 Ky. (5 B. 
Mon.) 45. It Is said in Bac. Abr., 
Leases (I) 9: "For such leases 
were not derived barely out of the 
interest of the guardian, or to be 
measured thereby, but take effect 
also by virtue of his authority, 
which, for the time, was general 
and absolute; and therefore all law- 
ful acts done during the continu- 



ance of that authority are good, and 
may subsist after the authority 
itself, by which they were done, is 
determined; and consequently the 
infant, when he comes of age, may 
by acceptance of rent or other act, 
if he thinks fit, make such leases 
good and unavoidable." 

311 "Webster v. Conley, 46 111. 13, 
92 Am. Dec. 234. There the lease 
was made without authority of court 
as required by statute, but the court 
says that the rule would be the same 
had the lease been authorized. 

312 Barrett v. Cocke, 59 Tenn. (12 
Heisk.) 566. 

313 Nichols V. Sargent, 125 111. 309, 
17 N. E. 475, 8 Am St. Rep. 378. 
The court says that he may obtain 
indemnity from the ward, a view 
Which is not in accord, apparently, 
with the case cited in the next pre- 
ceding note. 

31* Chestnut v. Tyson, 105 Ala. 149, 
16 So. 723, 53 Am. St. Rep. 101. 



§ 22 OFFICIAL CAPACITY OF PARTIES. 219 

(2) Of lunatics. At a common law, it seems, the committee or 
guardian of a lunatic has no power to lease the land of the ward 
without authority from the court, he being in effect a mere 
bailiflf,3i*a ^^^ ^jjjg p^jg jjg^g been asserted not to apply to a lease 
from year to year.^i^ Occasionally the matter is controlled by an 
express statutory provision on the subject.^^* It has been decided 
that under a statute providing that he "shall have the charge of" 
and "manage" the property of the ward, he may make a lease 
for a reasonable time without authority from the court.^^'. A 
lease made without the order, of court as required by statute will 
be set aside if made for an inadequate rent.^^* Whether this 
would be done when an adequate rent was reserved would pre- 
sumably depend on whether the lease was for the advantage of 
the lunatic as a whole. 

d. Receivers. A receiver may make a lease, when authorized 
by the court so to do and not otherwise.^i* The court will not 

314a 1 Piatt, Leases, 38, citing Cocks sis Alexander v. Bufllngton, 66 

V. Darson, Hob. 215 a; Hutt. 16; Iowa, 360, 23 N. W. 754. InPharlsv. 

Foster v. Marchant, 1 Vern. 262, Gere, 110 N. Y. 336, 18 N. B. 135, 1 L. 

1 Eq. Cas. Abr. 277, pi. 4, 326, R. A. 270, the court refused to decide 

pi. 13; Knipe v. Palmer, 2 Wils. whether a statute providing for a 

130 ; Den d. Brooks v. Brooks, 25 N. lease by order of court, -with a fur- 

C. (3 Ired. Law) 389. See Pharis v. ther provision that the property of 

Gere, 110 N. Y. 336, 18 N. E. 135, 1 a lunatic should "not be leased for 

L. R. A. 270. more than five years, or mortgaged 

In Richardson v. Richardson, 49 or aliened or disposed of otherwise 

Mo. 29, it was decided that a guard- than herein directed," dispensed 

Ian appointed by a testator for his with the necessity of such an order 

insane son could make a lease. He in the case of a lease for less than 

presumably was in the position of five years, but held that a lease made 

a trustee, or if the son was an in- without such an order, for a 

fant, which does not appear, he was rent dependent on the success of the 

in the position of a guardian to an lessee corporation, in order to give 

infant. the lessee the control of a certain 

315 De Treville v. Ellis, Bailey Eq. product, was unauthorized. 

(S. C.) 35, 21 Am. Dec. 518. ^19 i piatt. Leases, 389; Morris v. 

316 See Mills Ann. St. Colorado Elme, 1 Ves. Jr. 139; Weeks v. 
1891, i 2945; Connecticut Gen. St. Weeks, 106 N. Y. 626, 13 N. E. 96; 
1902, § 241; Virginia Code 1904, §§ Simmons v. Allison, 118 N. C. 761, 
1705, 2615-2621; West Virginia Code 24 S. E. 740; Neale v. Bealing, 3 
1906, § 3228 et seq. Swanst. 304; Roberts v. Armstrong, 

317 Palmer v. Chesboro, 55 Conn. 1 Moll. 27, note; Wynne v. New- 
114, 10 Atl. 508. See Campau v. borough, 1 Ves. Jr. 164; Farmers' 
Shaw, 15 Mich. 226. Loan & Trust Co. v. Eaton, 51 C. C. 



220 CREATION OF THE RELATION. | 23 

ordinarily, it seems, order a lease for such a length of time that 
it is likely to endure beyond the termination of the litigation,32o 
though if such a lease is made it will not terminate with the liti- 
gation.321 

An application for a direction to a receiver, appointed in credi- 
tors' proceedings, to make a lease binding on an infant remain- 
derman, has been refused.322 

A receiver may, no doubt, under authority of the court, take 
a lease of property if this is necessary or desirable for the con- 
duct of the receivership. He cannot, without such authority, bind 
the fund in his hands by a lease extending beyond the reeeiver- 
ship.323 

§ 23. Lease to two or more persons. 

In the case of a lease to two or more persons they will take as 
joint tenants or tenants in common accordingly as they would 
take in the case of a oonveyance to them in fee simple,. That is, 
at common law, they would take the leasehold as joint tenants, 
with the right of survivorship, in the absence of words of sever- 
ance,82* but in many jurisdictions a tenancy in common in the 
leasehold would exist by reason of statutory provisions, either 
abolishing joint tenancy or providing that it shall exist only when 
such an intention is plainly expressed or clearly apparent.^^^ 

A. 640, 114 Fed. 14. In Shreve v. receiver slmll manage, as well as 

Hankinson, 34 N. J. Eq. 413, how- let, the estate with the approbation 

ever, it was decided that a receiver of the master. See Duffield v. 

could, without a special order to Bllwes, 11 Beav. 690. 

that effect, make a lease of a farm 320 "Weeks v. Weeks, 106 N. Y. 626, 

for one year, the order appointing 13 N. E. 96 ; Alderson, Receivers, 305. 

the receiver giving him authority to 321 Farmers' Loan & Trust Co. v. 

l«t the property from time to time. Baton, 51 C. C. A. 640, 114 Fed. 14; 

It is said in a recent edition of Weeks v. Weeks, 106 N. Y. 626, 13 

Daniel's Chancery Practice (7th Ed., N. E. 96; Shreve v. Hankinson, 34 

at p. 1443) that a lease may tie made N. J. Eq. 413. 

for three years or less without the 322 Gibbins v. Howell, 3 Madd. 469. 

order of the judge, citing an unre- 323 Chicago Deposit Vault Co. v. 

ported decision of the master of the McNulta, 153 TJ. S. 554, 38 Law. 

Rolls. Formerly it was provided by Ed. 819. 

tie 64th order of 1828 that, in every 32*2 Blackst. Comm. 193; 1 Piatt, 

order directing the appointment of Leases, 537, 540. 

a receiver of landed estates, there 325 See 1 Tiffany, Real Prop. p. 

he inserted a direction that such 375. 



§ 24 POSSIBLE SUBJECT OF LEASE. 221 

§ 24. What may be the subject of a lease. 

a. Corporeal and incorporeal things. A lease may be made 
not only of a corporeal real thing, that is, of land or of that which 
way be so annexed thereto as to constitute a part thereof, but also 
of an incorporeal real thing, such as a franchise,326 a right as to 
the use of water-s^T a right of ■vvay,328 or a right of profit in an- 
other's land.8-8 That is, any such incorporeal thing may be 
granted for a period of less duration than the interest of the gran- 
tor. But though a lease may thus be made of an incorporeal 
thing, it cannot be regarded as creating the relation of landlord 
and tenant between the lessor and lessee-^^** There is in such case 
nothing of which tenure can be predicated. 

A so-called "lease" of "power," whether water, steam, or 
electric, is, it seems, merely a contract to furnish the power or to 
allow another to utilize it for a stipulated time.'^i 

b. Personal chattels. Personal or movable chattels may, it 
seems, be the subject of a gift or grant for a limited period,^^^ 
and we not infrequently meet with the expression "lease" in this 
connection. At the present day, however, whatever it may have 
been in former times,*'''^ a lease of a chattel is merely a species 

=26 St. Louis & C. R. Co. V. East sso Swift v. Goodrich, 70 Cal. 103, 

St. Louis & C. R. Co., 39 111. App. 11 Pac. 561; Smith, Land!. & Ten. 

354; Id., 139 111. 401, 28 N. E. 1088; (3d Ed.) 80; 1 Washburn, Real Prop. 

Walker v. Tipton, 33 Ky. (3 Dana) 3; 310. 

Hunting v. Hartford St. R. Co., But in Williams v. Ladew, 171 Pa. 

73 Conn. 179, 46 Atl. 824; State v. 369, 33 Atl. 329, one to whom a 

King County, 29 Wash. 359, 69 Pac. lepse of the right to take water from 

1106; Pelton v. Deall, 22 Vt. 170, 54 adjoining land is given is apparently 

Am. Dec. 61., regarded as a tenant, becoming a 

327 Williams v. Ladew, 171 Pa. 369, tenant at sufferance if he "holds 

33 Atl. 329; Ex parte Miller, 2 Hill over, that is, if he takes the water 

(N. Y.) 418; Tipping v. Eckersley, 2 after the period named, and being 

Kay & J. 264; Jordan v. Indlanapo- as such liable for use and occupa- 

lis Water Co., 159 Ind. 337, 64 N. B. tion. And see authorities post, § 

g30, 301, to the effect that use and occu- 

S28 Newmarch v. Brandling, 3 pation lies for the enjoyment of an 

Swanst. 99; Ledyard v. Morey, 54 incorporal thing. 

Mich. 77, 19 N. W. 754. '" See post, § 136. 

329Sury V. Brown, Latch, 99; In- sss sheppard's Touchstone, 268; 

habitants of Watertown v. White, Bac. Abr., Leases, A. 

13 Mass. 477; Read v. Granberry, 30 s^s See Gray, Perpetuities (2d Ed.) 

N. C. (8 Ired, Law) 109. § 826. 



222 CREATION OF THE RELATION. | 24 

of ' ' bailment, " a " contract of hiring, ' ' or, if made gratis, a loan, 
and it would seem desirable to confine the use of the term "lease" 
to things of a real character with which it has always been associ- 
ated. Leases or bailments of chattels, it is evident, do not create 
the relation of landlord and tenant, and consequently fall outside 
the scope of this work. 

Not infrequently in the case of a lease of land, personal chat- 
tels are included, as when furniture is leased along with a house, 
or live stock and farming utensils along with a farm. The various 
decisions in regard to the apportionment of rent in such a ease, 
and also as to the obligations of the lessee under special stipula- 
tions as to the return of the chattels, will be hereafter consid- 
ered.33* 

c. Part of building. There may be a lease of'merely a part of 
a building, a "floor" for instance, or an apartment or room. Such 
a lease, it has been generally decided in this country, does not 
pass any interest in the soil, and, consequently, upon a destruc- 
tion of the building or of that part of the building, the whole sub- 
ject of the lease is destroyed and the liability for rent termin- 
latesrf^^* Such a view of the operation of a lease of a part of a 
building seems reasonable and unobjectionable on principle. 
Though the building is, ordinarily, in legal theory, a part of the 
land, it is not physically a part of the soil or earth, that is, the 
building is one part of the land, and the earth or soil, land in its 
physical sense, is another part, and there is no more objection to 
leasing separately that part of the land which consists of a part 
of the building than to leasing that part of the land which cob- 
sists of the earth or soil, or of a stratum thereof. In England, 
how^ever, such a view has never been suggested, and there, upon 
the destruction of a building, an apartment in which has been 

334 See post, §§ 169 c, 254, 255. Bloeser, 77 Mo. App. 172; "Winton v. 

335 McMillan v. Solomon, 42 Ala. Cornish, 5 Ohio, 477. See post, § 
356, 94 Am. Dec. 654; Leiferman v. 182 p (2). 

Osten, 167 111. 93, 47 N. E. 203, 39 In Leiferman v. Osten, 167 111. 93, 
U R. A. 156; Kerr v. Merchant's 47 N. B. 20-3, 39 L. R. A. 156, it is 
Bxch. Co., 3 Bdw. Ch. (N. Y.) 315; decided that a demise of one floor of 
Rowan v. Kelsey, 4 Abb. Dec. (N. a building passed no interest in the 
Y.) 125, 2 Keyes, 594; Stockwell v. land under the building and that 
Hunter, 52 Mass. (11 Mete.) 448, 45 consequently a removal of the build- 
Am. Dec. 220; Shawmut Nat. Bank ing to another part of the same 
v. BoS'ton, 118 Mass. 125; Seidel v. lot did not constitute an eviction. 



§ 25 NECESSITY OF .WRITING. 223 

leased, the liability for rent is regarded as continuing, upon the 
theory, presumably, that the lease included an interest in the 

SOil.336 

I 25. Necessity of writing— Statute of frauds. 

a. The English statute. At common law a lease of land could 
be made without any writing, though, if for life, livery of seisin 
was necessary .33" On the other hand, a lease of an incorporeal 
thing, such as an easement, right of profit, or franchise, was always 
required to be by deed, that is, by writing under seal, since such 
things lay "in grant," and a grant necessarily involved the use 
of a seal.338 

The rule allowing oral leases of land was changed by the first 
section of the statute of frauds,339 which provided that all leases, 
estates, interests of freehold, or terms of years or any uncertain 
interest, in, to, or out of lands, tenements or hereditaments, not 
put in writing and signed by the parties so making or creating 
the same or their agents thereunto lawfully authorized by writ- 
ing, shall have the force and effect of leases or estates at will 
only. But an exception was made, by the second section of the 
statute, of "leases not exceeding the term of three years from the 
making thereof, whereupon the rent reserved to the landlord, dur- 
ing such term, shall amount to two-thirds parts at the least of the 
full improved value of the thing demised." 

The fourth section of the statute provides that no action shall 
be brought upon any contract or sale of lands, tenements or here- 
ditaments or any interest in or concerning them, unless the agree- 
ment, or some memorandum or note thereof, shall be in writing, 
and signed by the party to be charged therewith or some other 

336izon V. Gorton, 5 Bing. N. C. 501, sst Litt. § 60; Co. Litt. 9 a, 49 b; 

IS in effect opposed to such a view, as 2 Piatt, Leases, 1. The only case in 

is perhaps Marshall v. Schofield, 52 which a deed was necessary was that 

X,aw J. Q. B. 58. Doe d. Freeland v. of a demise by a corporation aggre- 

Burt, 1 Term R. 701, is sometimes gate. Co. Litt. 85 a. 

cited in support of such a view, but sssTottell v. Howell, Noy, 54; 

It has no bearing whatever on the Somerset v. Fogwell, 5 Barn. & C. 

question, it deciding merely that a 875; Bird v. Higginson, 2 Adol. & 

lease of ground was not to be con- E. 696. 

strued as passing a vault beneath it ssb 29 Car. 2, c. 3, § 1 (A. D. 1677). 
leased to another person. 



224 CREATION OP THE RELATION. § 25. 

person thereuiito by him lawfiilly authorized. This section also 
names a number of other classes of contracts with which we are 
not here concerned, on which, if not in writing, no action can be 
brought. 

The effect of these respective sections of the statute is stated 
by an English writer of high authority^*"* as follows : ' ' The first 
and second sections appear to enact, that all interests actually 
created without writing shall be void, unless in the ease of a lease 
not exceeding three years (at nearly rack rent).**** An actual 
lease for any given number of years, whether with or without 
rent, or any interest uncertain in point of duration, must, it should 
seem, equally fall within the provision of the first section, and 
cannot be sustained unless it come within the saving in the second 
section. This, however, of itself would not have prevented all the 
evils which the act intended to avoid, for although actual estates 
could not be created, yet still parol agreements might have been 
entered into respecting the future creation of them. To remedy 
this mischief, the provision in the fourth section was inserted, 
which relates not to contracts or sales of land, etc., but to any 
agreement made upon any contract or sale of lands, etc., and as 
agreements were more to be dreaded than contracts actually exe- 
cuted, no exception was inserted after the fourth section, similar 
to that which follows the first section, and consequently an agree- 
ment by parol, to create even such an interest as is excepted in 
the second section, would be merely void." Applying this view 
to the subject of the present work, a lease comes within the pro- 
vision of the first section, while an executory contract to make a 
lease is governed by the fourth section. That this is the proper 
application of the respective sections has been stated or assumed 
by other leading writers,***^ and seems to be the necessary con- 
struction of the language of the statute. The English statute thus 
distinguishes, as regards the requirement of a writing, between 
a lease and a contract for a lease, matters which in themselves are 
clearly distinct.^*^ 

b. The state statutes.. In this country the English statute of 

3*0 Sugden, Vendors & Purebasers Cummins, 33 N. J. Law, 44, per 

(14th Ed.) 122. Beasley, C. J.; Tillman v. Fuller, IS 

341 Browne, Statute of Frauds ( 5th Mich. 113, per Christlancy, J. 

Ed.) § 5; Dart, Vendors & Purchas- 342 gee post, § 62. 
ers (6th Ed.) 228. See Birckhead v. 



§25 



NECESSITY OF WRITING. 



225 



frauds is in force in at least two jurisdictions,**^ -w^hile in five 
states there are provisions substantially similar to the first sec- 
tion of that statute.^** In a considerable number of states it is 
provided in eif eet that no estate for over a term specified, usually 
one year, shall be created except by writing,**^ such provisions 



34S Maryland (see Alexander's 
British Statutes, p. 508) ; New Mex- 
ico (see Childers v. Talbott, 4 N. 
M. 168, 16 Pac. 275; Childers v. Lee, 
5 N. IVf. 576, 25 Pac. 781) . In Georgia 
the first two sections of the English 
statute were at one time recognized 
as in force. Presumably, however, 
they are to be regarded as displaced 
by the provision hereinafter referred 
to. See post, note 345. 

sii Kirby's Dig. St. Arkansas 1904, 
§ 3664; Missouri Rev. St. 1899, § 
3414; 2 Gen. St. New Jersey, p. 1602, 
§ 1; Pennsylvania Act March 21, 
1772; South Carolina Civ. Code 1902, 
§ 2416. 

345 California Civ. Code, § 1091 
(An estate in real property, other 
than an estate at will or for a term 
not exceeding one year, can be trans- 
ferred only by operation of law, or 
by an instrument in writing) . Mills' 
&jin. St. Colorado 1891, § 2019 (No 
estate or interest other than leases 
for not exceeding one year shall be 
created, granted, assigned or sur- 
rendered unless by act or operation 
of law or by deed or conveyance in 
writing). DeZaware Rev. Code 1893, 
p. 866 (No demise, except it be by 
deed, shall be for a longer term than 
one year). District of Golurnbia 
Code 1901, § 1116 (Every estate for 
a greater term than one year at- 
tempted to be created by parol shall 
be an estate at sufferance) . Florida 
Gen. St. 1906, § 2448 (No estate or 
interest of freehold, or for a term of 
years for more than two years, or 
any uncertain interest of, in, or out 



of, any messuages, lands or heredita- 
ments, shall be created, made or 
granted otherwise than by deed in 
writing). Georgia Code 1895, § 3117 
(Contracts creating the relation of 
landlord and tenant for any time not 
exceeding one year may be by parol, 
and if made for a greater time 
shall have the effect of a tenancy at 
will). Idaho Civ. Code 1901, § 2400 
( same as Colorado) . Burns' Ann. St. 
Indiana 1901, § 3335 (Conveyances 
of lands or of any interests therein, 
except bona fide leases for a term not 
exceeding three years, shall be by 
deed in writing). Kansas Gen. St. 
1905, § 3255 (No leases, estates 
or interests in lands exceeding 
one year in duration shall be 
assigned or granted unless by deed 
or note in writing). Carroll's St. 
Kentucky 1903, § 490 (No estate of 
inheritance or freehjold or for a 
term of more than one year shall 
be conveyed unless by deed or will). 
Maine Rev. St. 1903, c. 75, § 13 (No 
estate to be created greater than 
tenancy at will except by some writ- 
ing). Ma,ssachusetts Rev. Laws 
1902, c. 127, § 3 (An estate or Inter- 
est created without writing shall 
have force and effect of estate at 
will only). Michigan Comp. Laws 
1897, § 9511 (same as Colorado). 
Minnesota Rev. Laws 1905, § 3487 
same as Colorado). Mississippi 
Code 1906, § 2763 (An estate of in- 
heritance or freehold, or for a term 
of more than one year, shall not be 
conveyed unless the conveyance be 
declared by writing). Nebraska 



L. and Ten. 15. 



226 



CREATION OF THE RELATION. 



§25 



being practically equivalent to the first two sections of the Eng- 
lish statute, except that they reduce the period for which a lease 
may be made by parol. These provisions differ considerably in 
their language, and some of them, at least, cannot be regarded as 
superior in point of perspicuity to the English statute, however 
wanting this may be in that respect. With all their faults of ex- 
pression, however, they are quite readily capable of comprehen- 
sion as expressly invalidating leases by which estates of greater 



Comp. St. 1905, § 3636 (same as Colo- 
rado). Nevada Comp. Laws 1900, § 
2694 (same as Colorado). New 
Hampshire Pub. St. 1901, c. 137, § 12 
(Every estate or interest in lands 
created or conveyed without an in- 
strument in writing shall be deemed 
an estate at will only). New York 
Real Property Law, § 207 (same as 
Colorado). In Ward v. Hasbrouck, 
169 N. Y. 407, 62 N. E. 434, the 
court apparently lost sight of this 
section of the Real Property Law, 
referring to section 224 (post, note 
346) as if it had superseded the pro- 
vision of the former law which cor- 
responded with the present section 
207. North Carolina Revisal 1905, § 
976 (All leases and contract for leas- 
ing land for mining, of whatever dur- 
ation, and -all other leases and con- 
tracts for leasing lands exceeding 
three years from the making thereof, 
are void if not in writing). North 
Dakota Rev. Codes 1905, § 4968 
(same as California). Ohio Rev. 
St. 1906, § 4198 (No lease, estate or 
interest of freehold or term of years, 
or any uncertain interest in lands, 
shall be assigned or granted except 
by deed or note in writing). Bell 
& C. Ann. Codes Oregon, § 793 (sub- 
stantially same as Colorado). 
Rhode Island Gen. Laws 1896, c. 202, 
§ 2 (Every conveyance of land for 
any term longer than one year shall 
be void unless made in writing). 



South Carolina Civ. Code, § 2416 
(No parol lease shall give a tenant 
a right of possession for a longer 
period than twelve months from the 
time of entering on the premises). 
South Dakota Civ. Code 1903, § 938 
(same as California). Texas Rev. 
St. 1895, art. 624 (approximately the 
same as Mississippi). Utah Comp. 
Laws 1907, §§ 1974, 2461 (same pro- 
vision as that of Colorado, twice re- 
peated). Vermont Pub. St. 1906, § 
2582 (Estates or interests in lands, 
created or conveyed without an in- 
strument in writing, signed by the 
grantor or by his attorney, shall 
have the effect of estates at will 
only) . Wisconsin Rev. St. 1898, § 2302 
(same as Colorado). West Virginia 
Code 1906, § 3020 (No estate of in- 
heritance or freehold, or for a term 
of more than five years, in lands, 
shall be conveyed unless by deed or 
will). 

In Washington it is provided (Bal. 
Ann. Codes & St. § 4517) that 
all conveyances of real estate or of 
any interest therein, and all con- 
tracts evidencing any incumbrance 
upon real estate, shall be by deed; 
while § 4568 declares that leases may 
be in writing or print, or partly in 
writing and partly in print, and 
shall be legal and valid for any term 
or period not exceeding one year, 
without acknowledgment, witnesses 
or seals. 



§ 25 NECESSITY OF WRITING. 227 

than the excepted duration are sought to be created, and this is 
perhaps more than can be said of other forms of statutory provis- 
ion bearing upon the subject, now to be considered. 

In a number of states there is a provision to the general effect 
that an "agreement (or contract) for the leasing of land" for 
longer than one year is invalid if not in writing, the modes of 
expression varying to some extent, as in the class of provisions 
previously referred t'o.^*^ The distinguishing characteristic of 
this class of enactments is that they speak of an "agreement" or 
' ' contract ' ' for leasing rather than of a lease or conveyance. As 
before stated,^*'' the reference to a lease as an "agreement" or a 
"contract" has the effect of obscuring the important fact that it / 
is a conveyance, transferring an estate to the lessee, a fact which 
is clearly recognized by the first class of statutory provisions 
above referred to. Properly speaking, the expression an "agree- 
ment (or contract) for leasing" means an agreement to make a 
lease, and the fact that these statutory provisions usually invali- 
date in terms an agreement for leasing "or for the sale of" an 
interest in land would seem to show that this is the proper con- 
struction of the language used, an agreement to make a lease and 
an agreement to sell being evidently both executory contracts, 
clearly distinguishable from a lease or conveyance in fee, either 
of which involves an actual transfer of an estate. Thus regarded, 
the provisions here in question would correspond to the fourth 
section of the English statute rather than to the first and second, 

3i« California Civ. Code, § 1624 § 1237; Utah Comp Laws 1907, § 

(5); Mills' Ann. St. CoJorodo § 2021; 2463; Wisconsin Rev. St. 1898, § 

Idaho Civ. Code 1901, § 2739; Iowa 2304; Wyoming Rev. St. 1899, § 

Code 1897, § 4625 (No evidence ad- 2953. With these provisions may be 

missible of contract for the creation classed that of Alabama (Code 1907, 

or transfer of any interest in lands, | 4289), invalidating every contract 

except leases for a term not exceed- for the sale of lands, tenements or 

ing one year, unless in writing) ; hereditaments, or of any interest 

Michigan Comp. Laws 1897, § 9511; therein, except leases for a term not 

Minnesota Rev. Laws 1905, § 3488; longer than one year, unless the con- 

Montana Rev. Codes 1907, § 5017 tract or a memorandum thereof Is 

(5) iNelraska Comp. St. 1905, § in writing, signed by the party to be 

3638; New York Real Prop. Law, § charged, or unless the purchase 

224; North Dakota Rev. Codes fc05, money or a portion thereof be paid 

§ 5332 (5) ; Oklahoma St. 1903, § 780 and the purchaser put in possession. 

(5) ; Bell. & C. Ann. Codes Oregon § s" See ante, § 16. 
797; South Dakota Civ. Code 1903, 



228 



CREATION OP THE RELATION. 



25 



and that this was the view of the persons who prepared the Re- 
vised Statutes of New York, from which the provision has been 
adopted in other states, appears from their own statement.s*^ g^ 
far as regards that state, and other states in which**^ such a pro- 
vision is found in addition to a provision of the character before 
referred to, expressly invalidating oral leases for over one year, 
the provision is, if regarded as referring to a lease, as distinct 
from a contract to make a lease, utterly superfluous. 

There is still a third form of statutory enactment bearing upon 
the subject of parol leases which is found in a number of states, to 
the effect that "no action shall be brought upon" a lease (or con- 
tract for leasing) for a longer period than one year,^*^'^ a form 



348 This section (now Ne'w York 
Real Prop. Law, § 224) was origin- 
ally section eight of the Revised 
Statutes, pt. 2, c. 7, tit. 1, while the 
provision previously referred to (su- 
pra, note 345, Real Prop. Law, § 207) 
was section six of the same title. 
The note by the revisers to section 
eight (see 3 N. Y. Rev. St. [2d Bd.J 
p. 655) states that it Is "founded on 
the eleventh section of the present 
act," by which is meant the eleventh 
section of the act of Feb! 26, 1787, 
which is in the exact language of 
the fourth section of the English 
statute. The revisers' note to section 
six states that it "is intended as a 
substitute for the ninth, tenth and 
a part of the twelfth sections of the 
present statute," that is, of the act 
of 1787, which sections are identical 
with the first three sections and the 
seventh section of the English stat- 
ute. 

349 California, Colorado, Jdaho, 
Michigan, Nebraska, New York, 
North Dakota, Oregon, South Da- 
kota, Utah, Wisconsin. 

3i98L Arizona Rev. St. 1901, § 2696 
(No action shall be brought upon 
any contract for the sale of real 
estate or the lease thereof for a 



longer term than one year, unless 
the promise or agreement is in writ- 
ing, signed by the part to be 
charged). Kirby's Dig. St. Arkan- 
sas 1904, § 3654, 5 (no action shall 
be brought to charge any person 
upon any lease for a longer term 
than one year, unless the agreement 
or contract be in writing). Con- 
necticut Gen. St. 1902, § 1089 (No 
civil action shall be maintained on 
any agreement for the sale of real 
estate, or any interest in or concern- 
ing it, if not in writing. But this 
section not to apply to parol agree- 
ments for hiring or leasing real 
estate, or any interest therein, for 
one year or less, in pursuance of 
which the leased premises are actu- 
ally occupied during the term). 
Florida Gen. St. 1906, § 2517 (No 
action shall be brought whereby to 
charge the defendant upon any con- 
tract for lease for a period longer 
than one year, unless in writing). 
Kurd's Rev. minois St. 1899, c. 59, 
§ 2 (No action shall be brought to 
charge any person upon any contract 
for the sale of lands, tenements or 
hereditaments, or any interest in or 
concerning them, for a longer term 
than one year, if not in writing). 



§25 



NECESSITY OP WRITING. 



229 



of provision which has the defect of regarding a lease purely as a 
contract rather than as primarily a conveyance. Such a provision 
might mean that no action can be brought upon any covenant of 
the lease, or upon any covenant implied therefrom or from the 
relation of landlord and tenant created thereby, "or to obtain pos- 
session on the strength of the lease,35o but regarded as an intended 
substitute for the language of the first section of the English stat- 
ute, an enactment so v^orded is evidently most defective in not 
providing for the simple case of one already in possession under 
such a parol lease who merely desires to retain possession until 
the end of his term. The statutory provision precludes him from 
himself bringing suit on the strength of the lease, but it in no way 
precludes him from defending his possession on the strength 
thereof.^^^ So far as such a provision may be found in any juris- 
diction in company with a provision of the first class above men- 
tioned, expressly invalidating an oral lease,^^^ it seems entirely 



Kentiicky St. 1903, § 470 (No action 
shall be brought to charge any per- 
son upon any contract for the sale of 
real estate, or any lease thereof for 
a longer term than one year, if not 
in writing). Rhode Island Gen. 
Laws 1896, c. 233, § 6 (No action 
shall be brought to charge any per- 
son upon any contract for the sale of 
lands, tenements and hereditaments, 
or the making of any lease thereof 
for a longer term than one year). 
Shannon's Code Tennessee 3142 
(No action shall be brought upon 
any contract for the sale of lands, 
tenements or hereditaments, or the 
making of any lease thereof for a 
longer term than one year, if not 
in writing). Virginia Code 1904, § 
2840 (No action shall be brought 
upon any contract for the sale of 
real estate, or for the lease thereof 
for more than one year, unless evi- 
denced by writing). West Virginia 
Code 1899, c. 98, § 1 (same as Vir- 
ginia). 

350 strictly speaking, no action can 
he brought on a lease, though it may 



be brought on a covenant in the 
instrument in which the lease is 
incorporated, that is a "covenant of 
the lease," or on an oral contract 
made in connection with a convey- 
ance by way of lease, or it may be 
brought to assert a right of pos- 
session given by the lease. 

351 In Roberts v. Tennell, 19 Ky. 
(3 T. B. Mon.> 247, it is said that aa 
the statute merely declares that no 
action will lie on a verbal lease, and 
does not declare such a lease void, 
any use of it may be made by either 
party, except to maintain an action 
on it. Gud'gell v. Duvall, 27 Ky. (4: 
J. J. MarSh.) 229, is to the same 
effect. But in Simmons v. New 
Britain Trust Co., 80 Conn. 263, 67 
Atl. 883, it is said, apparently with 
reference to such a provision, that 
"a contract upon which the legisla- 
ture says that no action may be 
maintained cannot be used to defeat 
a demand otherwise legal and just." 

352 In Arkansas, Florida, Kentucky 
and Rhode Island, both provisions 
are found. 



230 CREATION OF THE RELATION. | 25 

superfluous, unless it be construed as referring merely to an execu- 
tory contract to make a lease, in accordance with the construction 
placed upon the fourth section of the English statute. Such a 
limited effect has not, however, been given to it by any judicial 
decision,353 and it is no doubt usually regarded as applying to 
actual leases. It represents, it seems, a crude attempt to make the 
language of the fourth section of the statute of frauds do the 
work of the first, so far as this is concerned with leases as distinct 
from other species of conveyance. Provisions of this third class 
usually adopt the language of the fourth section of the English 
statute in requiring the "lease" or "contract of lease" to be ei- 
ther itself in writing, or evidenced by some memorandum "signed 
by the person to be charged," and they also ordinarily form part 
of an enactment which in terms applies to the various classes of 
contracts named in such fourth section. 

There is probably in every state a provision corresponding to 
that of the fourth section of the English statute, providing that 
no action shall be brought upon any agreement which is not to be 
performed within the space of one year of the making thereof, 
unless the agreement or a memorandum thereof be in writing, 
signed by the person to be charged. In a number of jurisdictions 
the courts have regarded this provision as applicable to the case 
of a lease, so as to invalidate any lease which will not terminate 
within a year from its making, as for instance a lease for a year 
to begin in futuro.^^* In other jurisdictions a contrary view has 

353 In Morehead v. Watkyns, 44 Weeden, 108 Ala. 252, 9 So. 318; 

Ky. (5 B. Mon.) 228, in speaking of Wickson v. Monarch Cycle Mfg. Co., 

the statute prohibiting an action on 128 Cal. 156, 60 Pac. 764; Landt v. 

an oral lease, and of that invalidat- Schneider, 31 Mont. 15, 77 Pac. 307; 

ing an oral lease for a term greater At-wood v. Norton, 31 Ga. 507; Olt 

than a certain number of years, it v. Lohnas, 19 111. 576; Wheeler v. 

is said that the first was intended Frankenthal, 78 111. 124; "Wolf v. 

to apply to "executory contracts," Dozer, 22 Kan. 436; Greenwood v. 

and the other to "executed con- Strother, 91 Ky. 482, 16 S. "W. 138; 

tracts," but that the courts have Thomas v. McManus, 23 Ky. Law 

indiscriminately applied the first Rep. 837, 64 S. W. 446; Delano v. 

to both classes of cases. Montague, 58 Mass. (4 Cush.) 42; 

35* Parker's Adm'r v. Hollis, 50 Jellett v. Rhode, 43 Minn. 166, 45 

Ala. 411; Crommelin v. Thiess, 31 N. W. 13, 7 L. R. A. 671; Brosius v. 

Ala. 412, 70 Am. Dec. 499; Bain v. Evans, 90 Minn. 521, 97 N. W. 373; 

McDonald, 111 Ala. 269, 20 So. 77; Briar v. Robertson, 19 Mo. App. 66; 

A. G. Rhodes Furniture Co. v. Beiler v. Devoll, 40 Mo. App. 251; 



§ 25 NECESSITY OF WRITING. 231 

been taken to the effect that this provision has no application to 
leases.sss That the latter -view is correct seems to the present 
writer beyond any question. As we have before remarked, a lease 
is primarily a conveyance and not an executory agreement, and, 
so regarded, such expressions as "to be performed" and "not to 
be performed" are inapplicable thereto, nor can an action be 
brought upon a conveyance of any sort. The lessor may, indeed, 
at the time of making the verbal lease, stipulate to do something, 
to make repairs, for instance, but such a stipulation would but sel- 
dom be one that might not be performed within a year, and, to be 
within this clause of the statute, the agreement, it is conceded, 
must contemplate performance after the year.^s^ And even were 
a stipulation by the lessor within this clause, the fact that such a 
stipulation is unenforceible would be no reason for regarding the 
demise itself as invalid. And so as regards stipulations by the 
lessee made in consideration of the lease, as for instance to pay 
rent during the term thereof, conceding that these may be within 
this clause of the statute, this would furnish no reason for regard- 
ing the oral demise as insufficient to vest a term in the lease. Even 
assuming that there are, in the particular ease, stipulations to be 
performed by the lessor as well as by the lessee, and assuming 
further that the unenforcibility of the lessee's stipulations would 
invalidate the stipulations by the lessor, on the theory that an 
oral agreement within the statute -is insufficient as a considera- 
tion to support an agreement by the other party ,^^^ this could not 
well affect the validity of the oral lease as a conveyance. In other 

Cook V. Redman, 45 Mo. App. 397; Ind. 409; Whiting v. Ohlert, 52 Mich. 

Butts V. Fox, 96 Mo. App. 437, 70 S. 462, 18 N. W. 219, 50 Am. Rep. 265; 

W. 515 (semble); White v. Holland, Young v. Dake, 5 N. Y. (1 Seld.) 

17 Or. 3, 3 Pac. 573; Wheeler v. 463, 55 Am. Dec. 356; Ward v. Has- 

Cowan, 25 Me. 283 (semble); James brouck, 169 N. Y. 407, 62 N. E. 434; 

V. Smith, a Ind. T. 447, 58 S. W. McCroy v. Toney, 66 Miss. 233, 5 So. 

714; Robb v. San Antonio St. R. Co., 392, 2 L. R. A. 847; Hayes v. Arring- 

82 Tex. 392, 18 S. W. 707 (semble); ton, 108 Tenn. 494, 68 S. W. 44; 

Mathews v. Carlton, 189 Mass. 285, Richards v. Redelsheimer, 36 Wash. 

75 N. E. 637 (semble). 325, 78 Pac. 934. 

355Higgins V. Gager, 65 Ark. 604, 356 Browne, Statute of Frauds, c. 

47 S. W. 848; Sears v. Smith, 3 Colo. 13. 

287; Sobey v. Brisbee, 20 Iowa, 105; as? See 29 Am. & Bng. Enc. Law 

Stem V. Nysim^er, 69 Iowa, 512, 29 (2d Ed.) 821. 
N. W. 433; Railsback v. Walke, 81 



232 CREATION OP THE RELATION. § 25 

words the effectiveness of a conveyance as creating rights in rem 
in favor of the grantee cannot be affected by the fact that at the 
time of making the conveyance an ineffectual attempt was made 
to create in addition a right or rights in personam.^^^ It may 
furthermore be remarked that if this provision of the statute, re- 
quiring contracts not to be performed within a year, to be evi- 
denced by writing, is to be regarded as applicable so as to inval- 
idate a lease which may extend more than a year from the making 
thereof, the exception, in the second section of the English statute, 
of leases for not over three years, is rendered utterly futile, as ap- 
plied to a lease for over one year. 

c. "Leases" within the statutes. There have been a num- 
ber of decisions as to whether, under the particular circumstances 
of the case, there was a lease of land calling for the application of 
the statute. The question of what constitutes a lease for this 
purpose is to be determined by the same considerations as apply 
in other cases. So an agreement for the cultivation of land on 
shares is not within the provision of the statute directed against 
oral leases, if it creates the relation of employer and employe mere- 
ly^359 -vyhile it is within such provision if it creates the relation of 
landlord and tenant. ^^° So, since a contract for board and lodg- 
ing does not create the relation of tenancy, ^°^ it is valid though 
oral,3®2 go far as the statute in regard to leases is concerned. The 
case is otherwise, however, if the contract is for the exclusive oc- 
cupation of particular rooms in a building, it being then in legal 
effect a lease.^^^ The statute obviously applies to a lease renew- 

368 In Higgins v. Gager, 65 Ark. Unglish v. Marvin, 128 N. Y. 3»(>, 28 

604, 47 S. W. 848, however, it was N. B. 634. 

decided that since an oral stipula- aeo Seotten v. Brown, 4 Har. (Del.)' 

tion by the lessee not to engage in 324; Coan v. Mole, 39 Mich. 454; 

a competing trade during the term Jackson v. Brownell, 1 Johns. (N. 

of the lease was invalid, as an agree- y ) 267 3 Am. Dec. 326. 



361 See ante, § 8. 

362 White T. Maynard, 111 Mass. 



ment not to be performed within a 
year, "the whole contract must fail." 
The action was presumably for rent. 

359Hlmesworth v. Edwards, 5 Har. 250, 15 Am. Dec. 28; Wilson v. Mar-. 

(Del.) 376; Unglish v. Marvin, 128 tin, 1 Denio (N. Y.) 602; Wright v. 

N. Y. 380, 28 N. B. 634. See ante, § Stavert, 2 Bl. & Bl. 721. 

20. But it may be within the pro- ^^^ See Edge v. Strafford, 1 Cromp. 

vision as to contracts not to be per- & J. 391; Inman v. Stamp, 1 Starkie, 

formed within one year. See e. g., 12, as distinguished in Wright v. 



§ 25 NECESSITY OP WRITING. 233 

ing or extending a previous lease.^^*'' 

A license to enter upon land for the purpose of doing certain 
specified acts, not giving any right of exclusive possession, is to 
De distinguished from a lease in this connection as in others,3o* 
and is valid though merely oral, but is revocable at the will of the 
owner of the land, unless, in some states, the licensee has done 
some acts on the strength of the license.s«5 

An agreement by a lessee, during the lease, to pay a sum period- 
ically, in addition to the rent originally reserved, does not involve 
the creation of a new tenancy, even though such increased sum 
be termed rent, and it is not within the statute.^es 

It is almost unnecessary to say that the statute applies to a sub- 
lease as well as to a lease by one not himself holding under a 
lease.*^'^ 

d. Short time leases. The second section of the English stat- 
ute of frauds, as above stated, excepts from the requirements of a 
writing "all leases not exceeding the term of three years from the 
making thereof, whereupon the rent reserved to the landlord, dur- 
ing such term, shall amount to two-thirds parts at the least of the 
full improved value of the thing demised." Such an exception 
presumably exists in those few jurisdictions in which the first 
section of the English statute is recognized as in force without 
re-enactment.^®* Of those jurisdictions which have re-enacted the 
first section of the English statute, one retains the exception in 
the language of the second section of the English statute except 
that "one year" is substituted for "three years, "^®9 ^nd two re- 
tain the exception of a lease "not exceeding three years from the 

Stavert, 2 El. & El. 721; Porter v. tague v. Bacharacli, 181 Mass. 256, 

Merrill, 124 Mass. 534. 63 N. E. 435. 

363a Williams v. Apothecaries' see Hoby v. Roebuck, 7 Taunt. 157; 

Hall Co., SO Conn. 503, 69 Atl. 12. Donellan v. Read, 3 Barn. & Adol. 

364 See ante, § 7. 899. See § 173 f (2). A different 

385 Browne, Statute of Frauds, § 21 view seems to be taken in Walsh v. 

etseq.; ISugden, Vendors & Purchas- Oolclough (C. C. A.) 56 Fed. 778, 

ers (14th Ed.) 124; 1 Tiffany, Real but there the case was decided to 

Prop. 680; Johnson v. Wilkinson, 139 have been taken out of the operation 

Mass. 3, 29 N. E. 62, 52 Am. Rep. 698. of the statute by part performance. 

But an agreement in pursuance of S67 Fratcher v. Smith, 104 Mich. 

which one occupies as licensee may 537, 62 N. W. 832. 

be unenforcible, as being one not to s^s See ante, § 24 b. 

be performed within a year. De Mon- sea s. C. Civ. Code, § 2416. 



234 CREATION OF THE RELATION. § 25 

making thereof " without the qualifying language in regard to the 
amount of rent reserved,^ ^° while in two there is no exception, in 
express terms, of a short time lease.^''^ 

The theory of the qualifying language as to the amount of rent 
reserved seems to be that unless the rent reserved approximates 
the rental value of the property, the value of a term for three years 
or less would be so great as to create a temptation to perjury, as 
much as in the case of a longer term on which a greater rent is 
reserved.3'^2 That "two-thirds of the value of the land" means 
two-thirds of the rental value has been judicially reeognized.*'^ 

The statutes which do not follow the language of the first sec- 
tion of the English statute ordinarily except from their operation 
leases for one year only.*^* In a few states no exception is made 
of short time leases.^'''' 

The exception in the English statute, as in the state statutes 
modelled thereon, applies in terms to leases not exceeding a term 
of a certain length "from the making" of the lease, and conse- 
quently require the period to be computed from that time, without 
reference to the duration of the term itself. Under such a statute 
an oral lease for less than the excepted period is void if it is to be- 
gin so far in the future that it Mdll not terminate till more than 
such period after its execution,^''® while if it is to terminate within 
such expected period it is perfectly valid, though it is to begin 
in the future.^^'^ Ordinarily, however, the clause of the statute 

370 2 Gen. St. N. J. p. 1602, § 1; 375 in Maine, Massachusetts, New 
Pennsylvania Act March 21, 1772. Hampshire, Ohio, Vermont, Washlng- 
In New Jersey, formerly, the quail- ton. As to this last state, see Rich- 
fication as to the rent reserved ex- ards v. Redershelmer, 36 Wash. 325. 
isted. Birckhead v. Cummins, 33 N. 78 Pac. 934. 

J. Law, 44; Gano v. Vanderveer, 34 370 Rawlins v. Turner, 1 Ld. Raym. 

N. J. Law, 293. 736; Whiting v. Pittsburgh Opera 

371 Kirhy's Dig. St. Ark. 1904, 5 House Co., 88 Pa. 100; Jennings v. 
3664; Mo. Rev. St. 1899, § 3414. McComb, 112 Pa. 518, 4 Atl. 812; 

372 Browne, Statute of Frauds, § Wheeler v. Conrad, 6 Phlla. (Pa.) 
32. 209, 24 Leg. Int. 61; Birckhead v. 

373 Childers v. Talbott, 4 N. M. 168, Cummins, 33 N. J. Law, 44, 51. 

16 Pac. 275; Birckhead v. Cummins, 377 Ryiey v. Hicks, 1 Strange, 651; 

33 N. J. Law, 44. And see Cody v. Union Banking Co. v. Glttings, 45 

Quarterman, 12 Ga. 386, in Which Md. 181; Birckhead v. Cummins, 33 

this provision of the English stat- N. J. Law, 44; Hayes v. Arrington, 

ute is referred to. 108 Tenn. 494, 68 S. W. 44 ; Brown v.' 

374 See references ante, § 25 b. Kayser, 60 Wis. 1, 18 N. W. 523. 



§25 



NECESSITY OF WRITING. 



235 



which provides that it shall not apply to leases for a term of less 
than a certain period does not state from what time this period 
is to be computed. Such a statute is regarded as intended merely 
to limit the length of the term which may be orally created, mak- 
ing the statutory period computable, not from the date of the 
making of the lease but from the date of the beginning of the 
term. Thus, for instance, under a statute excepting leases for a 
term of one year or less, a lease for one year, to commence in 
futuro, has been regarded as perfectly valid.^''^ 

It is asserted in an English case *^® that an oral lease which may, 
by its terms, not endure beyond the excepted period, is valid, 
though it may endure beyoad that period, and there are decisions 
in three states in this country to that effect.^^" Elsewhere, how- 
ever, it has been decided that a lease for a period greater than 
that named in the exception is not brought within the exception 



3T8 Young V. Dake, 5 N. Y. (1 Seld.) 
463, 55 Am. Dec. 356; Ward v. Has- 
broiick, 169 N. Y. 407, 62 N. B. 434; 
"Whiting V. Ohlert, 52 Mich. 462, 18 
N. W. 219, 50 Am. Rep. 265; Stein- 
inger v. "Williams, 63 Ga. 475 (sem- 
ble) ; Sobey v. Brisbey, 20 Iowa, 105; 
Jones V. Marcy, 49 Iowa, 188; Hig- 
gins V. Gager, 65 Ark. 604, 47 S. 
"W. 848; Bateman v. Maddox, 86 Tex. 
546, 26 S. W. 51; Sears v Smith, 3 
Colo. 287; McCroy v. Toney, 66 
Miss. 233, 5i So. 392, 2 L. R. A. 847. 

A lease for a year, to commence 
in futuro, is not a lease for more 
than a year because it effects an 
immediate surrender of a present 
tenancy "by operation of law." (Na- 
than V. Stern, 13 Daly (N. Y.) 390) 
(see post, § 190 b), nor because the 
lessee is allowed to take Immediate 
possession. Herrmann v. Heyde- 
man, 36 Misc. 778, 74 N. Y. Supp. 
862. 

379 Ex parte Voisey, 21 Ch. Div. 
442. 

380 In Chaffe v. Benoit, 60 Miss. 34, 



it was decided that an oral lease "for 
the crop season of 1880," which might 
or might not be for the period ex- 
cepted in the statute, was valid. 
Citing Browne, Statute of Frauds, 
§ 273 et seq., where, however, the 
effect of the clause of the fourth sec- 
tion requiring a contract not to be 
performed within a year to be in 
writing was alone in question. In 
Raynor v. Drew, 72 Cal. 307, it was 
decided that a lease until such time 
as the lessor should pay a certain 
sum to the lessee was not "an agree- 
ment for the leasing of land for a 
longer period than one year, within 
the statute." In Hintze v. Krabben- 
schmidt (Tex. Civ. App.) 44 S. W. 
38, and Burden v. Lucas, 19 Ky. Law 
Kep. 1581, 44 S. "W. 86, it was de- 
cided that a lease not necessarily 
extending beyond a year need not be 
in writing, apparently on the ground 
that a contract which may be per- 
formed within a year is not within 
the clause as to contracts not to be 
performed within a year. 



236 CREATION OF THE RELATION. § 25 

by the existence of an option in tlie lessor,^®i or in the lessee,^^^ 
to terminate it within that period. The former view would seem 
to furnish an easy mode of avoiding the operation of the statute 
by the insertion of a special limitation terminating the lease with- 
in the excepted time upon the happening of some unlikely contin- 
gency. In this country, furthermore, it has been decided that a 
lease for less than the excepted period is within the statute, and so 
invalid when oral, if there is a covenant for renewal at the option 
of the lessee,38s while there is an English decision to the con- 
trary .^s* So, while there are decisions that a lease for a period 
less than that excepted in the statute is within the statute if there 
is a provision for extension*^** beyond that periodj^^*" there is at 
least one decision that in such case the statute does not apply .^^ic 
In accordance, it appears, with the former view, are decisions that 
the statute cannot be avoided by naming in the lease two terms, 
each for less than the excepted period, one to follow upon the 
other.385 

There is a decision to the effect that though the term named in 
the lease was merely a year, and consequently was within the ex- 
ception in the statute, a provision that the lessee should have the 
right, after the end of the term, to enter and reap the crop, in- 
volved an attempt to create an interest in land extending over a 
year, and that both the lease and such special provision were 
void.386 It might, it is conceived, be questioned whether such per- 

381 Evans v. Winona Lumber Co., 384 Hand v. Hall, 2 Exch. Div. 355. 
SO Minn. 515, 16 N. "W. 404. 384a See post, § 218. 

382 Hand v. Osgood, 107 Mich. 55, 384b Hand v. Osgood, 107 Mich. 55, 
64 N. W. 867, 30 L. R. A. 379, 61 Am. 64 N. W. 867, 30 L. R. A. 379, 61 
St. Rep. 312 (Lease for year, with Am. St. Rep. 312; Donovan v. Schoen- 
right of extension); Donovan v. hoefen Bre-w. Co., 92 Mo. App. 341; 
Schoenhoefen Brew. Co., 92 Mo. Bateman v. Maddox, 86 Tex. 546, 2S 
App. 341 (ditto); Bateman v. Mad- S. W. 51. 

dox, 86 Tex. 546, 26 S. W. 51 (ditto). 384c Ward v. Hasbrouck, 169 N. Y. 

See post, §§ 218, 219. 407, 62 N. E. 434. 

3S3 Schmitz v. Lauferty, 29 Ind. ssb Carling v. Purcell, 19 N. Y. 

400; Williams v. Mershon, 57 N. J. Supp. 183; Holzderher v. Forrestal, 

Law, 242, 30 Atl. 619 (semble) ; 13 Daly (N. Y.) 34. 

Rosen v. Rose, 13 Misc. 565, 34 N. sso Carney v. Mosher, 97 Mich. 554, 

Y. Supp. 467; Hess v. Martin, 36 56 N. W. 935. 

Misc. 541, 73 N. Y. Supp. 946. But In Reeder v. Sayre, 70 N. Y. 180, 

as to New York, see Ward v. Has- 26 Am. Rep. 567, is said by Folger, 

brouck, 169 N. Y. 407, 62 N. E. 434. J. : "It is admitted by counsel argu- 



§ 25 NECESSITY OP WRITING. 237 

mission to enter for a limited purpose constitutes an interest in 
land, rather than a mere license.**^ 

The decisions are to the effect that a lease from year to year is 
not within the statute and is valid though created orally .^^s This 
seems to accord with the view that a lease is not within the stat- 
ute if it may terminate within the excepted period, though it may 
possibly continue for a longer time. In those few states where 
the statute contains no exception of a short time lease, it seems 
that an oral lease expressed to be from year to year would be 
within the statute. 

In an English case it is said that the effect of the statute of 
frauds, so far as it applies to parol leases not exceeding three years 
from the making, "is this, that the leases are valid, and that what- 
ever remedy can be had upon them, in their character of leases, 
may be resorted to ; but they do not confer the right, to sue the 
lessee for damages for not taking possession, "^89 and in that case 
it was decided, in apparent conformity with a previous decision,^^* 
that no action would lie against the lessee under such a lease for 
not taking possession.^^i In view of the fact that a lessee is ordi- 
narily under no obligation to take possession, provided he pays 
the stipulated rent,392 {^ jg difficult to understand the assertion 

cndo, in Wigglesworth v. Dallison, regarded as extending the tenancy 

1 Doug. 201, that when the usual itself. Beavan v. Delahay, 1 H. Bl. 

crop of the country is such that 5; Knight v. Benett, 3 Bing. 364; 

it cannot come to maturity in one Griffiths v. Puleston, 13 Mees. & W. 

year, a right to hold over after the 358; Boraston v. Green, 16 Bast, 81. 

end of the term, in a parol demise, sss Browne, Statute of Frauds, § 

may be raised by implication. But 35; Legg v. Strudwick. 2 Salk. 414; 

no authority is cited; nor does it" Birch v. Wright, 1 Term R. 378; 

seem consistent with a statute which Swan v. Clark, 80 Ind. 57; Wessells 

declares that no estate or interest in v. Rodifer, 30 Ky. Law Rep. 51, 97 

land, save a lease for a term not S. W. 341; Brown v. Kayser, 60 Wis. 

exceeding one year shall be created 1, 18 N. W. 523. 

by parol." The admission of counsel 389 Edge v. Strafford, 1 Cromp. & 

referred to was, more correctly, that J. 391, 1 Tyrw. 295, per Bayley, B. 

where the usual crop of the country sso Inman v. Stamp, 1 Starkie, 12 ; 

cannot come to maturity in a year, Selwyn's Nisi Prius (13th Ed.) 859. 

a custom by which the tenant is son They are cited, with approval, 
allowed to hold over is valid. " as so holding. In Union Banking Co. 

387 But in England a custom al- v. Gittings, 45 Md. 181; Childers v. 

lowing the tenant to hold over for Talbott, 4 N. M. 168, 16 Pac. 275. 

the purpose of gathering the crop is 392 gee post, § 122. 



238 CREATION OF THE RELATION. § 25 

that he is not liable in damages for not taking possession under 
an oral lease. The decision is stated to be based on the fourth 
section of the statute of frauds and the idea of the court is ap- 
parently that, until entry by the lessee, what is in terms a lease is 
a mere contract for a lease, and is consequently a contract for an 
interest in land within such section.^^* This would involve an ex- 
tension of the view, hereafter referred to, that before entry the 
lessee has no estate,^^* and is evidently not in accord with a later 
decision to the effect that before entry the lessee has a right in rem 
as distinguished from a mere contractual right.*^^ It is difficult, 
in any case, it would seem, to infer a contract by a lessee to take 
possession from his mere acceptance of a lease, and it has been 
suggested that the cases referred to merely decide that an express 
agreement by a lessee to take actual possession is within the 
fourth section.396 

e. SuflRciency of writing. Apart from the question of the 
necessity of signing, to be considered elsewhere,^^'' the question of 
the sufficiency of the -wanting has been but rarely considered judi- 
cially. That the writing must describe the premises seems clear, 
and it has accordingly been decided that an instrument merely 
referring to the premises "as I described them" was insufficient.^^* 
It has also been decided that a letter to the effect that if the ad- 
dressee would move on the writer 's farm he might have it for five 
years, and perhaps longer, was insufficient as a lease for years as 
not stating the terms on which the farm was to be leased.^^^ 

393 Such a construction of the decl- authority for the view that no action 

sions referred to is apparently adopt- would lie in favor of the lessee 

ed In the subsequent case of Bolton against the lessor to obtain posses- 

V. Tomlin, 5 Adol. & E. 856. sion of the premises. 

»94 See post, § 37. 3" See post, § 27. 

Si's Gillard v. Cheshire Lines Com- sas Jarboe v. Mulry, 49 N. Y. Super, 

mittee, 32 Wkly. Rep. 943. See post, Ct. (17 Jones & S.) 525. 
note 679. S99 Cunningham v. Roush, 157 Mo. 

39sBirckhead v. Cummins, 33 N. .^36, 57 S. W. 769. It does not 

J. Law, 44, where it was decided clearly appear what is meant by the 

that an action would lie, in the case statement that the writing did not 

of such a short-time parol lease, for state the "terms" of the lease. If by 

the rent reserved, although the that is meant that it did not name 

lessee had not taken possession. In any rent, it may be remarked that 

Huffman v. Starks, 31 Ind. 474, the a lease is perfectly valid though no 

court refused to follow these Eng- rent is reserved. The writing in 

lish cases, assuming them to be Question could not operate as a 



§ 25 NECESSITY OF WRITING. 239 

f. Right to assert the statute. It has been decided that the 
benefit of the fourth section of the English statute of 
frauds, as affecting only the remedy on the contract, 
may be waived by the party "to be charged," and that a third 
person has no right to deny that the contract is binding upon such 
party, in order thereby to avoid his own obligations growing out 
of the existence of the contract.*"" The courts have occasionally 
undertaken to apply this rule to the case of a "contract of lease," 
so-called, with the result of holding that, if the lessor himself failed 
to assert the invalidity of the lease, neither the transferee of the 
reversion,*"! nor a prior lessee, whose term had expired but who 
was seeking to retain possession,*"^ nor one to whom the lessee had 
mortgaged the crop,*"^ could do so. On the other hand it has 
been asserted that a statute requiring a lease to be in writing, hav- 
ing to do with the creation of rights in rem, should be available 
to third persons as well as to the parties to the lease.*"* 

So far as the decisions first referred to are based on the theory 
that a lease is a contract, and that, since third persons cannot as- 
sert the invalidity of an oral contract as being within the statute 
of frauds, they cannot assert the invalidity of an oral lease, they 
are, it is submitted, erroneous. The grantee of land can always, 
it is conceived, assert that a previous conveyance in fee simple by 
his grantor to another person was invalid as against him because 
not in writing, and he should, it is conceived, have the same right 
as regards a previous conveyance for years. The transferee of 
the lessor has property rights in the land, and has a right to show 
the invalidity of any asserted incumbrance thereon. Whether, 

lease for a term of years because it took possession was held to be pre- 
named no certain term, and also, it eluded from asserting the invalidity 
would seem, because it was evidently of the lease as against one claiming 
of a merely tentative character, a under a mortgage on the crops made 
mere ofCer in fact, not intended as a by the lessee before he took posses- 
lease, slon. 

400 Browne, Stat, of Frauds, § 135. *04 Emery v. Boston Terminal Co., 

«i Shakespeare V. Alba, 76 Ala. 351. 178 Mass. 172, 59 N. E. 763, 86 Am. 

402Boyce v. Graham, 91 Ind. 420. St. Rep. 473, per Holmes, C. J. 

Contra, Best v. Davis, 44 111. App. That a subsequent lessee, as being 

624. in privity with the lessor, can as- 

403 Grisham v. Lutrlc, 76 Miss. 444, sort the invalidity of a prior lease 

24 So. 169, where one claiming under to another because within the stat- 

a mortgage on crops made by a ute, see Best v. Davis, 44 111. App. 

lessee of the land after the latter 624. 



240 CREATION OP THE RELATION. § 25 

however, a person other than the lessor, if not in the position of a 
subsequent transferee of the lessor, should be allowed to question 
the validity of the lease because not in writing, as required by the 
statute, would seem to be doubtful. Though the lessee cannot 
claim any rights under the terms of the lease itself, he is, it is 
conceived, even before taking possession, at least a lessee at 
will,4"5 and as sucii has a right to the possession as against any 
person other than the lessor or one claiming under him. On this 
view the decision, above referred to, that a tenant wrongfully hold- 
ing over could not, as against one claiming under a subsequent 
oral lease made by the same landlord, assert the invalidity of the 
lease, was rightly decided. Though the lessee was not entitled 
to possession as a lessee for years under the lease, he was so en- 
titled as a lessee at will, the mere making of the lease being equiv- 
alent to a grant of permission to take possession.*"® 

It has been decided that the fact that the lease under which the 
plaintiff claims is within the statute of frauds is available as a de- 
fense only if specially pleaded,***'' unless this fact appears upon the 
face of the complaint.*"® This is the rule generally recognized 
in the case of an action on a contract within the fourth section 
of the English statute and the local equivalents thereof in the dif- 
ferent states,*''^ but it seems questionable whether such a rule 

*»s See ante, §13a(3). no action shall be brought on a "con- 

406 The decision referred to in tract for the lease of real estate if 

note 403, supra (Grisham v. Lutric, not in writing," hut the same viewt 

76 Miss. 444, 24 So. 163), would not would presumably be taken when' 

harmonize with this theory, it be- fhe statute in terms invalidates an 

ing apparently based on the view oral lease; the purpose of the intro- 

that a lessee named in an oral lease duction of the evidence being to 

within the statute does not become show what rent could have been 

a lessee at will till he takes pos- obtained rather than that such rent 

session. was actually agreed upon. 

The fact that a lease is oral does *°^ Shakespeare v. Alba, 76 Ala. 

not, it has been decided, render it 351; Geneva Mineral Springs Co. v. 

inadmissible, in favor of the lessor Coursey, 45 App. Div. 268, 61 N. Y. 

as against a building contractor, to Supp. 98. 

show the amount of rents lost by the ^"^ Carling v. Purcell, 19 N. Y. 

latter's failure to complete the build- Supp. 183; Robb v. San Antonio St. 

ing. Burruss v. Hines, 94 Va. 413, R. Co., 82 Tex. 392; 18 S. W. 707, 24 

26 S. E. 875. The decision is in L. R. A. 183. 

terms based on the language of the los Browne, Stat, of Frauds, c. 20. 

statute, which provides merely that This chapter, it will be noticed. 



§ 25 NECESSITY OP WRITING. 2M. 

should be applied in a possessory action in which either the plain- 
tiff or defendant claims under an unwritten lease. The case would 
seem to be similar to that of any other action of ejectment in 
which either party is allowed to show defects in his. opponent's 
title under general alleg'ations. 

g. Effect of noncompliance with the statute — (1) Resixltinf 
tenancy at will or periodic tenancy. The first section of the Eng- 
lish statute of frauds provides that leases or interests created 
otherwise than in accordance with its requirements shall "have 
the force and effect of leases or estates at will only. ' ' In several 
states in this country, likewise, it is provided in effect that an oral 
lease within the prohibition of the statute shall create a tenancy at 
will."" As has been previously shown, a tenancy at will ordinar- 
ily becomes, by the payment of a periodic rent, a periodic ten- 
ancy,*^ ^ and this doctrine has been applied, in jurisdictions in 
which there is such a provision as to the effect of a parol lease, to 
a tenancy at will resulting from the making of such a lease.'*^^ In 
Maine and Massachusetts, however, it is considered that, in view 
of the provision of the statute that an oral lease shall create a 
tenancy at will only, taken in connection with the absence of any 
exception in favor of short time leases, the tenancy at will cannot 
be converted into a tenancy from year to year or other periodic 

is in "Part IV." of the work, which c. 137, § 12; Pennsylvania Act March 

begins at chapter 8 and treats 21, 1772; South Carolina Civ. Code 

of "Contracts" as distinguished from 1902, § 2650; Vermont St. 1894, § 

"The Creation and Transfer of Es- 2218. In the District of Columbia It 

tates in Land," which is covered by is provided (Code 1901, § 1116) that 

Part I (chapters 1-5). The subject such a lease shall create a "tenancy 

of "leases" is treated exclusively in at sufferance." 
Part I., and consequently the chap- *ii See ante, § 14 b (2) (a). 
ters in the latter part of the work 412 Dumn v. Rothermel, 112 Pa. 272, 

are evidently not Intended to apply 3 Atl. 800; Walter v. Transue, 17 

thereto. In citing the book, courts Pa. Super. Ct. 94; Hellams v. Patton, 

frequently lose sight of the division 44 S. C. 454, 22 S. E. 608; Matthews 

into parts. v. Hipp, 66 S. C. 162, 44 S. B. 577; 

4i»Kirby'a Dig. St. Arfcorasas, 1904, Barlow, v. . Wainwright, 22 Vt. 88, 

§ 3664; Georgia Code 1895, § 3117; 53 Am. Dec. 79; Ameden v. Atwood, 

Maine Rev. St. 1903, c. 75 § 13; 68 Vt. 322, 35 AH. 311;, SartweU v. 

Massachusetts Rev. Laws 1902, c. Scwles, 72 Vt. 270, 48 Atl. 11, 82 Am. 

127, § 3; Missouri Rev. St. 1899, § St. Rep. 943. 
3414; New Sampehire Pub. St. 1901, 



L. and Ten. 16. 



242 



CREATION OF THE RELATION. 



§25 



tenancy.*^ 5 And in another state a statute,*^* abolishing tenan- 
cies from year to year except when created by express written 
contract, would seem to render it impossible to regard as such a 
tenant one in possession under an invalid oral lease.*^^ 

If one has, by entering under a void oral lease and the payment 
of rent, become a tenant from year to year, he will, it seems evi- 
dent, so long as he continues his holding, in the absence of -a new 
lease, continue to hold as a tenant from year to year, in the same 
way as if he had entered by permission without any lease for a 
specified term, and the fact that the time named in the void lease 
has expired could not change the terms of his holding.*!^ 

There are occasional suggestions to the effect that one entering 
under a verbal lease, even though he pays a yearly rent, will be- 
come a tenant from year to year only after he has had possession 
for a year.*^'' This view, it is submitted, is not justified on prin- 



ts Ellis v. JP^iige, 18 Mass. (1 
Pick.) 43; Davis v. Thompson, 13 
Me. 209; Withers v. Larrabee, 48 
I Me. 570. 

In Georgia, also, this seems to 
be the case. Nicholes v. Swift, 118 
Ga. 922, 45 S. E. 708, 98 Am. St. 
Rep. 145; "Western Union Tel. Co. v. 
Piiln, 52 Ga. 18; Hayes v. City of 
Atlanta, 1 Ga. App. 25, 57 S. E. 1087. 

See, also, Goodwin v. Clover, 91 
Minn. 438, 98 N. W. 322, where It 
is said that the lessee, having en- 
tered, was a tenant at will, and no 
statement is made as to what rent 
he paid, or whether he paid any 
rent. 

414 Ball. Ann. Codes & St. Wash. § 
4568. 

415 Though the section above re- 
ferred to abolishes tenancies from 
year to year when not created in ex- 
press terms, the next section (4569) 
somewhat inconsistently provides 
that when premises are rented for an 
indefinite time, at a monthly or other 
periodic rent, a tenancy from month 
to month, or "from period to period 
on which rent is payable," shall 



arise. In Dorman v. Plowman, 41 
Wash. 477, 83 Pac. 322, it was held 
that the entry and payment of a 
yearly rent under a lease invalid 
under the statute of frauds created 
a tenancy "terminable by either 
party at the end of any year," this 
ignoring completely, it would seem, 
the provision abolishing tenancies 
from year to year. In the previous 
case of Richards v. Redelsheimer, 
36 Wash. 325, 78 Pac. 934, it was 
said that if an oral lease is good 
at all, it must come under § 4569 and 
be construed as a lease from montli 
to month. 

416 Baltimore & O. R. Co. v. West, 
57 Ohio St. 161, 49 N. E. 344. The 
court there speaks of the tenant, 
who thus retains possession after 
the period named in the void lease 
has elapsed, as "holding over the 
term." It is, it is submitted, not a 
case of holding over the term, be- 
cause there was no term. He merely 
continues as tenant from year to 
year. 

4i7Talamo v. Spitzmiller, 120 N. 
Y. 37, 23 N. E. 980, 8 L. R. A. 221, 



I 25 NECESSITY OP WRITING. 243 

eiple or authority. However short his possession may have been, 
provided the parties have by the payment and acceptance of an 
installment of annual rent, or otherwise, shown an intention that 
the holding shall be from year to year, it will assume that charac- 
ter. 

In many of the states there is no provision that a lease within 
the statute shall be effective to create only a tenancy at will, but 
the statute in terms makes the lease invalid or unenforcible. The 
omission of any specific reference to a tenancy at will cannot, how- 
ever, affect the principle that one entering under the invalid lease 
is primarily a tenant at will as having possession by permission 
of the owner.*! 8 The fact that the lease is void in so far as it at- 
tempts to create a term cannot affect its operation as showing a 
permission to the lessee to enter, and having so entered by per- 
mission, and thus become tenant at will, the tenant 's payment of a 
periodic rent should, in accordance with the general rule, be re- 
garded as evidence of an intention to create a periodic tenancy. 
This accords with the decisions as to one entering under a lease 
invalid for some reason other than noncompliance with the statute 
of frauds, such person being regarded as in the first place a ten- 
ant at will,*!^ becoming a periodic tenant on payment of a periodic 
rent.*^'* There are a number of cases which assert this view, more 
or less clearly, in connection with leases within the statute of 
frauds, regarding the question whether the tenancy at will be- 
comes a periodic tenancy as depending on the payment of a pe- 

17 Am. St. Rep. 609; Allen v. Bart- tenant, what is he? He is In posses- 

lett, 20 W. Va. 46, quoted in Arbenz sion, and his possession is not 

V. Bxley, Watkins & Co., 52 W. Va. wrongful, being by permission. 

476, 44 S. B. 149, 61 L. R. A. 857; One in possession by permission 

Baltimore & O. R. Co. v. West, 57 must be a tenant. 

Ohio St. 161, 49 N. E. 344 (semble). In Kofoid v. Lincoln Implement & 

See, also, Amsden v. Blaisdell, 60 Transfer Co. (Neb.) 114 N. W. 937, 

Vt. 386, 15 Atl. 332. one entering under a lease within 

418 See ante, § 13 a (3). This the statute was regarded as having 

seems to be lost eight of in Rich- no right of possession as against 

ards v. Redelsheimer, 36 Wash. 325, the lessor. 

78 Pac. 934^ it being assumed that if *i» See cases cited ante, § 14 b 

one enters under a void lease he (2) (a). 

can be a tenant only by reason of 420 Tiernan v. Johnson, 7 Mo. 43; 

some express .statutory provision. Parley v. McKeegan, 48 Neb. 237, 67 

If one entering under an oral lease N. W. 161; Kernochan v. Wilkens, 

is not a tenant at will or a periodic 3 App. 0iv. 596, 38 N. Y. Supp. 236. 



244 



CREATION OF THE RELATION. 



§25 



ciodic rent, aad tlte question as to what is- the character of the 
periodic tenancy, whether a tenancy from year to. year or from 
month to month, for instaneCi as depending on whether the rent is 
paid with reference to a period ol a year or a month.^^^ In aom© 



*2i In Johnson v. Albertson^ 51 
Minn. 333, 53 N. W. 642, it is said 
that in the statement that the ten- 
ant at will becomes a tenant 
from year to year by "payment of 
rent," "payment," must mean pay- 
ment with reference to a yearly hold- 
ing, and wiiether the payment is 
such should be determined without 
reference to the void lease. The 
opinion proceeds: "When urban 
property is involved, occupancy and 
monthly payments as for each 
month's rent are insufficient, standing 
alone, to indicate an intention to 
create a yearly tenancy. They indi- 
cate merely an Intentron to create 
a tenancy from month to month." 

In Talamo v. Spitzmiller, 120 N. 
Y. 37, 23 N. E. 980, 8 L. R. A. 221, 
17 Am. St. Rep. 609,, it is said that 
"the mere fact that a person goes 
into possession under a lease void 
because for a longer term than one 
year does not create a yearly ten- 
ancy. * * * While it is not re- 
quired that a new contract, be 
made in express terms, there must 
be something from which it may be 
inferred. Something which taids to 
show that is within the mtenfeion of 
the parties. The payment and re* 
ceipt of an installment or aliquot 
part, of the ajnnuat rent is evidence 
of such understanding, and goes in' 
support of a yearly tenancy; and 
without explanation to the contrary, 
it is controlling evidence for that 
purpose."' And so in Eeeder v. 
Sayre, 1$ N. T. 180, 26, Am. Rep. 56;T, 
and Laughran v. Smith, 75, N. Y. 205,, 
*-he tenancy from year to yeasr is- 



regarded as based on both the entry 
and the payment of the annual rent 
reserved. And in Greaton v. Smith, 
1 Daly (N. Y.) 380, it is stated that 
payment of rent with refereace' to 
a yearly holding is necessary to 
change the tenancy at will so created 
into a tenancy from year to year. 

In Lockwood v. Lockwood, 22 
Conn. 4'25, the tenant was regarded 
as tenant from year to year by 
reason of his payment of yearly 
rent. 

In a number of cases it is, de- 
cided that payment of a monthly 
rent by the tenant holding under 
the void lease will show a tenancy 
from month to month. Warner t. 
Hale, 65 111. 395 ; Creighton v., San- 
ders, 89 111. 543; Brownell y., Welch^ 
91 111. 523; Donohna v. Chicago 
Bank Note Co., 37 111. App., 552; 
Lehman v. Nolting, 56 Mo. App. 549; 
Butts V. Fox, 96 Mo. App, 437, 70, 
S. W. 515; Prindle v. Anderson, 19 
Wenid.. (N. Y.) 391; Anderson v. 
Prindle, 23 Wend. (N., T.) 616; Peoi 
pie V. Daa-ling, 47 N. Y., 666;' eeiger 
v: Braun, 6 Da^y (N. Y.) 506;; Law- 
rence V. HasbiToucfi:, 21 Miec-.. 39',, 46 
N. Y. SLuvP- 8€8,., Utah Loan ffi Trust 
Co. V. Garbutt, 6 Utah, 342, 23 Pae; 
758. In a quite recent case in 11&- 
nois, indifeed (lEarr v.. Bay,. 15 111. 
340,, 37 N. E. 10i29, 2:6 'L. R. A. 799-)', 
it is said that possession and pay- 
ment of rem* createsf a tenancy flroHi 
month to mionth, without any sug- 
gestion being made that a tenancy 
from year to. year would ha created 
if the rent were a yearly rent. In 
this case the rent was paM monthls; 



§ 25 NECESSITY OF WRITING. 245 

cases, hswever, it is appairently considered tlaial; a tejiaiicy from 
year to year arises in the particular ease witbout reference to 
whetlier any rent is j)aid,*22. 42s a^^ jq g, mimber it is decided that 
the lessee's entry and paymeiat of rent creates a tenaHicy from 
year to year, without any saggestion that his payitneaiBt of rent, if 
not with reference to a yearly period, would create a periodic ten- 
ancy of a different sort, from quarter to qoarter or month to 
month for instamce.*^* 

The qu-estion whether the reservation of a periodic rent in con- 
nection with the invalid lease will, apart from paymsent thereof, 
be regarded as evidence that the lessee taikinig possession is a pe- 
riodic tenant, is a matter which 1ms seldom been the subject of dis- 
cussion. The answer to the question would seem to depend on the 
eonsideration whether, though tbe lease, regarded as a conveyance, 
is invalid under the statute, the attempted reservation of rent or 

as m the ^previous cases in that formed within a year, do^ not 

iState, cated ahove. create a tenancy from year to year. 

422, 423 Larfcin v. Aveiry, 23 Conn. Unglish v. MaTvin, 128 N. Y. 380, 28 

304; Strong v. Croslsy, 21 Conn". N. S. =634. 

S98; Mopehead v. Watkyns, 44 Ky. 424 Schneider v. Lord, 62 Mich. 
(5 B. Mom.) 228; Ohio & M. R. Co. 141, 28 N. W. 773; Huntington v.. 
V. Trapp, 4 Ind. App. 69, 30 N. E. Parihurst, 87 Mich. 38, 49 N. W. 597, 
812; Nash v. Berkmeir, 83 Ind. 536; 24 Am. St. Rep. 146; Groodfellow v. 
Brant v. Vmcast, IW Mich. 426, 59 Noble, 25 Mo. 60; Rtdgely y. Still- 
N. W. 169; -Cnnningham v. Roush, well, 25 Mo. 570; ScTilly y. Murray, 
157 Mo. 336, 57 S. W. 769; Davies v. 34 Mo. 420, 86 Am. Dec. 116; Nichols 
Baldwin, '66 Mo. App. 577; Drake v. v. Hi<5klin, 127 Mo. App. 672, 106 
Newton, 23 N. J. Law (3 Zab.) Ill; S. W. 1109; Blnmenthal v. Blooming- 
Peop'le V. Rickert, 8 Cow. (N. Y.) dale, 100 N. Y. 558, 3 N. E. 292; Cou- 
226; Lonnsbery v. Snyder, 31 N. Y. dert v. Cohn, 118 N. Y. 309, 23 N. 
S14; Taggard v. Roosevelt, 2 E. D. E. 298, 7 L. R. A. 69, 1« Am. St. Rep. 
Smith (N. Y.) 1»0, 8 How. Pr. 141; 761; Humphrey Hardware Co. v. 
Clark V. SmiOi, 25 Pa. 137 ; Ridgeley Herrick, 5 Neb. UnoS. 524, 9.9 N. 
V. Stillwell, 28 Mo. 400; Scully v. W. 233; Wiilliaims v. Ackerman, 
MiiErray, 84 Mo. 420, 8€ Am. Dec. 116; 8 Or. 405; Rosenblatt v. Perkins, 
Harnertt v. Korscherak, 110 N. Y. 18 Or. 156, 22 Pac. 598; Garrett v. 
Snpp. 986; Duke v. Harper, 14 Clark, 5 Or. 464; Walter v. Transue, 
Tenn. (6 Terg.) 280, 27 Am. Dec. 22 Pa. Super. Ct. 617; McDowell v. 
462; Rogers v. Wheaton, 88 Tenn. Simpson, 3 Watts (Pa.) 129, 27 
i665, 13 S. W. 689. See, also, post, Am. Dec. 338 <tf holding and pay- 
notes 427, 428. ing rent for a year) ; Koplitz v. Gus- 

iOcBnpaaijcy under a mere cropping tavus, 48 Wis. 48, 3 N. W. 754 (sem- 

agreement, invalid as not to he per- ble). 



246 



CREATION OF THE RELATION. 



§25 



covenant for the payment thereof can be regarded as effective for 
the purpose of bringing the case within the rule, before consider- 
ed,*25 that a letting for no named period, a "general" letting, 
creates prima facie a periodic tenancy if a periodic rent is re- 
served. The view that the stipulation as to rent is effective for 
this purpose is inferentially supported by the (iases hereafter 
eited,*28 to the effect that, if the lessee enters under the invalid 
lease, he becomes liable for the stipulated rent. If the stipulation 
as to rent is effective • for the purpose of imposing liability on 
the lessee, it would seem also to be effective for the purpose of fix- 
ing the character of the holding. There is a Canadian decision 
which is explicit to the effect that the provision for a periodic rent 
does make the lessee who enters a periodic tenant, although he 
does not pay the rent,*27 and there are a few cases in this country 
which indicate with more or less clearness a similar view.^^s Qr- 



<25See ante, § 14 b (2) (b). 

*26See post, § 25 g (4). 

427 Gibboney v. Glbboney, 36 U. C. 
•Q. B. 236, referring to several Eng- 
lish text book statements in support 
of this view. 

*28 Steketee v. Pratt, 122 Mich. 80, 
8* N. W. 989; Mcintosh v. Hodges, 
110 Mich. 319, 68 N. W. 158, 70 N. 
W. 550; Barrett v. Cox, 112 Mich. 
220, 70 N. W. 446; Coan v. Mole, 39 
Mich. 454; Morrill v. Mackman, 24 
Mich. 279, 9 Am. Rep. 124; Packard 
V. Cleveland, C, C. & St. L. R. Co., 
46 111. App. 244; Stover v. Cadwal- 
lader, 2 Penny. (Pa.) 117; Williams 
V. Deriar, 31 Mo. 13; Julian v. Ber- 
ardini, 49 Misc. 119, 96 N. Y. Supp. 
1064; Mades v. Howaldt, 46 Wash. 
450, 90 Pac. 588; Hebberd v. Mayo, 
97 N. Y. Supp. 396; Grlswold v. City 
of Branford, 80 ConnTlssTeS Atl. 987. 
TrSsTT Savage, 4 El. & Bl. 36, con- 
tains dicta that such would be the 
case if a lease were not sealed as 
required by statute. There, how- 
ever, there were payments of rent. 

In Watkins v. Balch, 41 Wash. 



310, 83 Pac. 321, 3 L. R. A. (N. S.) 
852, it is said that since the local 
statute provides that on a lease for 
an indefinite time, with a reserva- 
tion of a periodic rent, a periodic 
tenancy shall arise, such is the effect 
of an oral lease, within the statute, 
reserving a periodic rent. 

In Steketee v. Pratt, 122 Mich. 80, 
80 N. W. 989, it is said that when 
there is no reservation of an annual 
rent, or rent payable at any stated 
intervals, a tenancy from year to 
year is not created by the verbal 
lease, but a tenancy at will; but 
that when there is a reservation 
of an annual rent, there is a ten- 
ancy from year to year, or at least 
for a year (in no other jurisdiction 
does it appear to have been sug- 
gested that the payment of an an- 
nual rent might create a tenancy for 
the term of one year). This seems 
to overrule Brant v. Vincent, 100 
Mich. 426, 59 N. W. 169, where a 
tenancy from year to year was held 
to exist although the whole rent was 
paid in advance. In Coan v. Mole, 



§25 



NECESSITY OF WRITING. 



247 



dinarily the courts, in passing upon the status and liability of a 
lessee entering under a lease within the statute, make reference 
exclusively to the periodic rent which may have been paid by him, 
ignoring the fact that, as is usually the case, there was a reserva- 
tion of a periodic rent.*^'' 

If there is neither the reservation nor the payment of a periodic 
rent, but a gross sum is paid in lieu of rent, the lessee entering 
would on principle, it seems, become, not a periodic tenant, but a 



39 Mich. 454, and Schneider v. Lord, 
62 Mich. 141, 28 N. W. 773, it seems 
to be held that the fact that the rent 
paid is a monthly rent does not 
prevent the holding being from year 
to year. In Mcintosh v. Hodges, 110 
Mich. 319, 68 N. W. 158, 70 N. W. 
550, where the rent reserved on a 
void lease was a certain gross sum 
to be paid in monthly installments 
of a certain amount for the first nine 
months, and of another amount per 
month for the balance of the term, 
and the lessee took possession and 
paid the agreed amounts for twelve 
months, it was held that, since an 
annual rent was not reserved, a ten- 
ancy from year to year was not 
created, but a tenancy at will, 
though not a "strict" tenancy at 
will. In Barrett v. Cox, 112 Mich. 
220, 70 N. W. 446, it is held that if 
the oral lease was for an indefinite 
period, as for the life of the lessee, 
and there is no reservation of a 
periodic rent, the lessee taking pos- 
session becomes a tenant at will, 
while "if it is for a term of years, 
thus evidencing an intent of an 
annual renting, it is to be held good 
as a lease from year to year." In 
Barium v. Berger, 125 Mich. 504, 84 
N. W. 1070, it seems to be consid- 
erded that the tenant under an oral 
lease is a tenant from year to year 
though he pays a monthly rent, but 
it is thfere decided that if he holds 



over after the term named in the 
lease, paying a monthly rent, he then 
becomes a tenant from month to 
month. In Teft v. Hinchman, 76 
Mich. 672, 43 N. W. 680, it was 
apparently considered that the lessee 
taking possession under an invalid 
lease, and remaining in possession 
for more than a year, was, during 
the second year, a tenant for a term 
of one year, running from the end 
of the first year. 

129 See Talamo v. Spitzmiller, 120 
N. Y. 37, 23 N. E. 980, 8 L. R. A. 
221, 17 Am. St. Rep. 607; Jennings 
V. McComb, 112 Pa. 518, 4 Atl. 812; 
Lehman v. Nolting, 56 Mo. App. 549; 
Johnson v. Albertson, 51 Minn. 333, 
53 N. W. 642; Matthews v. Hipp, 66 
S. C. 162, 44 S. B. 577; Utah Opti- 
cal Co. V. Keith, 18 Utah, 464, 56 
Pac. 155; Arbenz v. Exley, Wat- 
kins & Co., 52 W. Va. 476, 44 S. 
B. 149, 61 L. R. A. 957; and cases 
cited ante, note 421. 

In Clayton v. Blakey, 8 Term 
R. 3,ni"Ts said by Kenyoh, C. J.: 
"The meaning of the statute was 
that .such an agreement should not 
operate as a term; but what was 
then considered as a tenancy at will 
has since been properly construed 
to enure as a tenancy from year to 
year." In the notes to this case, in 
2 Smith's Leading Cases (8th Ed.) 
106, it is said that "though there is 
no express mention of rent having 



248 CREATION OF THE RELATION. g 25 

tenant at wilL^^i g^j;); ^s before stated, there are cases whicli ap- 
pear to regard one entering under such a lease as necessarily a 
tenant from year to year, vitkont reference to the reservation or 
payment of a periodic rent.**^ 

In Indiana it is expressly provided that tenancy at will shall 
be created only by express contract, and that all general tenancies 
shall be deemed tenancies from year to year,*^^ and there a holding 
under an oral lease Tvithin the prohibition of the statute mil create 
a tenancy from year to year without reference, it seems, to the 
payment of rent.*** In Missouri it is expressly provided that an 
oral lease of land in a town or city shall create a tenancy from 
month to month.** ^ 

The view that one entering and paying rent becomes a periodic 
tenant necessarily means that he can relieve himself from liabiLi1;y 
for rent only at the end of one of the periods, and then only by 
giving the common-law or statutory notice necessary to terminate 
such a tenancy .**« 

been paid, yet, as the tenant had reserved or paid. Though the in- 
been in possession lor three years, valid lease reserves no periiodic rent, 
and that, under a rent (for the if the lessee enters and actually pays 
action was for double rent), it is such a rent, he becomes, no doubt, 
more than probable that some pay- a periodic tenant The same re- 
ment of rent had taken place during mark may be made in reference to 
that period," and "it has not, it is Williamis v. Deriar, 31 Mo. 13, where 
believed, ever been held that a parol it is decided that a lessee entering 
demise for more than three years, at under an invalid lease which does 
la fixed rent, even when coupled not reserve any rent is mot a ten- 
with the lessee's entry under it, wiU, -ant from year to year, 
before payment or acknowledgment 432 See ante, aote 423. 
in account of any part of the rent 433 gee ante, § 14 b (2) (c). 
reserved, have the effect of rendering 4,34, Railsback v. Wallte, 81 Imd. 
him tenant from year to year." 409; Nash v. Berkmeir, 83 Ind. 53€; 
*3i A tenancy at will was held to Michigan City v. Leeds, 24 Ind. 
exist in Mclntssh v. Hodges, 110 App. 271, 55 N. B. 7S9. 
Mich. 319, 68 N. W. 158, 70 N. W. 435 gee ante, § 14 c :(2). 
560; Packard v. Cleveland, C. C; & issi^ockwood v. Lockwood, 22 
St. L. R. Co., 46 111. App. 244; Stover Conn. 425; Brownell v. Welch, 91 111. 
V. Cadwallader, 2 Penny. (Pa.) 117. 523; Arbenz v. Exley, Watkins & Oo., 
These cases are in terms based upon 52 W. Va. 476, 44 S. E. 149, 61 L. 
the laot that no periodic rent was R. A. 957. See ante, § 14 a, and 
reserved^ It would rather Beem that post, § 196 c. 

they sibould be liased on the ground In Thomas v. Nelson, 63 N. Y. 

that no periodic rent was either 118, it is (said that 'it is difficult to 



§ 25 NECESSITY OF WRITING. 249 

"Since one -entering under an oral lease, invalid under the stat- 
Hite of f raads, enters by permission and becomes at least a tenant 
at will, be is not liable as a trespasser/^^ and the profits of the 
la,nd properly belong to him.*38 ^g j^as the rights of a tenant,*^^ 
and the lessor has, as against him, the rights of a landlord.**" 

(2) Effect ef stipukktions as to terms oi holdini^. It was said 
in an English ease, frequently referred to,**i that " though the 
agreement be void by the statute of frauds as to the duration of 
the lease, it must regulate the terms on which the tenancy sub- 
sists in other respects, as to the rent, the time of the year when the 
tenant is to quit, etc," and it was there decided that the lease 
controlled in this latter regard the time for quitting. There seems 
to he no other English case in which a similar assertion is made 

perceive how sack a contract, de- be liable for rent until the tenancy 

Glared to be void by the statute, can is terminated by notice, even tliough 

be held to be valid for a single no term was specified, for the reason 

hour, or upon wiat principle a ten- that he is a periodic tenant. 

ant, entering under a void lease, 437 Roberts v. Tennell, 19 Ky. (3 T. 

could be compelled, by virtue of B. Men.) 247. 

the lease, to pay for a longer period 4,3s Goodwin v. Clover, 91 Minn. 

Ithan he actually occupied." The 438, 98 N. W. 322, 103 Am. St. Rep. 

question <does not ajopear to have 15175 Ooe v. Grigge, 76 Mo. 619. In 

heea directly preseaited so far as the latter case it is said that one 

can he dietermined from the raOier who enters under -a verbal lease and 

obscure report. In Prlal v. Entwis- raises a crop which he barvests is 

tie, M Xkaly (N. Y.) 3:98 on the .entitled to the crop. But that would 

stjieingth of the above case, it was be so even if he were a trespasser. 

decided that one who entered and The actual decision was that one 

paM 'part of the annual rent was who tools a verbal lease of a guarry 

not liable for remt after he left the was entitled to the stone which he 

premises. Distingulshi'ng Boeder v. took out, and that consequently he 

Sayre, 70 N. Y. 181, 26 Am. iBeip. was justdifled la :chairging the lessor 

567, .and Langhran v. Smith, 75 N. Y. as a thief if he took away such stone 

205, apparently ion the gnouad that without the lessee's consent. 

in those cases the 'ocoupatioi^. an.(J 439 See Goodwin v. Clover, 91 Minn. 

payment oi inent extended ove¥ two 438, 98 N. W. 322, 103 Am. St. Rep. 

years or more, a distiincition whioh is 517. 

supported by no other authority. 440 in Martin v. Blanchett, 77 Ala. 

The view asserted in the two New 288, it is held that the landlord la 

York eases first cited is founded, it entitled to attachment for advances 

is conceived, on the mistaken theory made to one so entering, as being 

that the tenant's liability is by reas- a tenant. 

on of the terms of the oral lease. 441 Boe d. Rigge v. Bell, 5 Term R. 

He woTil'd properly, it is submitted, 472, per Kenyon, C. J. 



250 CREATION OP THE RELATION. § 25 

as regards an oral lease within the statute of frauds,*** but a like < 
doctrine has been applied in England when the lease was void as 
being an insufficient execution of a power,*** when it failed to 
comply with a statute requiring a seal, which statute provided that 
an xmsealed lease should be "void,"*** and also when there was 
no attempt to create a term, but one having a contract for a lease 
for years entered by the owner's consent pending the execution 
of the lease.**^ The application of the doctrine in these various 
cases shows that its applicability is not, in the case of a lease with- 
in the statute of frauds, in any way dependent, as has been sug- 
gested,*** upon the provision of the statute that the lease shall 
have the effect of creating an estate at will. The view thus as- 
. serted in England to the effect that, if the lessee enters by reason 
of the invalid lease, the terms of the tenancy are regulated by the 
language of the lease, has been not infrequently reiterated in this 
country.**''' It has moreover been decided that the time in any 
year for the termination of the tenancy from year to year created 
by entry and the payment of annual rent was fixed by the original 
time of entry, and not with reference to the time at which the term 
named would come to an end.**® Furthermore, on the analogy of 

**2 In Berrey v. Llndley, 3 Man. Rep. 146; Kernochan v. Wilkens, 3 

& G. 498, it is said by Maule, J., App. Div. 596, 38 N. Y. Supp. 236; 

that "if a party enter under an in- Reeder v. Sayre, 70 N. Y. 180, 26 Am. 

valid agreement, or under an agree- Rep. 567; Schuyler v. Leggett, 2 Cow. 

ment not amounting to a demise, he (N. Y.) 663; People v. Rickert, 8 

may still hold subject to the terms Cow. (N. Y.) 226; People v. Evans, 

of that agreement, so far as they 8 N. D. 211, 77 N. W. 93; Snyder v. 

are not at variance with the species Harding, 38 "Wash. 666, 80 Pac. 789. 

of tenancy which the law, under the (i^s Coude rt v . Cohn, 118 N. Y^309, 

circumstances, creates." 7 L. R. A. 69, 16 Am. St. Rep. 761, 

*43 Beale v. Sanders, 3 Bing. N. C. 23 N. E. 298, citing Berrey v. Lind- 

850. ley, 3 Man. & G. 498; Doe d. Rob- 

*44Lee V. Smith, 9 Exch. 662; inson v. Dobell, 1 Q. B. 806, which 

Tress v. Savage, 4 El. & Bl. 36. tend to support it, though the first 

**5 See post, § 65. was the case of a holding under an 

as Browne, St. of Frauds, § 39. agreement to make a lease, and the 

447 Cody V. Quarterman, 12 Ga. latter was the case of a tenant hold- 

386; Marr v. Ray, 151 111. 340, 37 N. ing over his term. Doe d. Rigge 

E. 1029, 26 L. R. A. 799; Nash v. v. Bell, 5 Term R. 471, seems op- 

Berkmeir, 83 Ind. 536 ; Ohio & M. R. posed thereto. In the latter case a 

Co. V. Trapp, 4 Ind. App. 69, 30 N. B. farm was leased orally for seven 

812; Huntington v. Parkhurst, 87 years, the lessee to enter on the 

Mich. 38. 49 N. W. 597, 24 Am. St. land on Lady day (March 25th) and 



§ 25 NECESSITY OF WRITING. 251 

English decisions that if one enters under an executory agreement 
for a lease for a term,*49 or under an unsealed lease,*8o the hold- 
ing will terminate even without notice at the end of the term 
named, it has been decided in this country that if one enters under 
a lease invalid by reason of the statute of frauds the tenancy will, 
if not previously terminated by notice, come to an end on the ex- 
piration of the term named without any notice.*^! A different 
view has, however, been asserted in one case upon the ground that 
to give such effect to an attempt to create a term without writing 
is directly contrary to the statutory requirement of a writing for 
this purpose,'»52 and on principle, it seems, this latter view is de- 
cidedly the more satisfactory. 

There are a number of eases to the effect that if the lessee takes 
possession, the terms of the invalid letting as to the rent to be paid 
may be considered in determining the extent of his liability for 
use and occupation, and there are others to the effect that he is 
liable for "rent" at the rate named by the lease.*^* It has been 
decided in England that one entering under a lease void as an in- 
suiBcient execution of a power,*^^ or under an agreement for a 
lease, *^^ is bound by a provision therein that he should repair, but 
in at least one case in this country a lessee entering under a lease 
invalid because oral was held not to be bound by such stipula- 
tion.456 



into the house on May 25th, and was A.pp. 437, 70 S. W. 515; Ray v. Black- 
to quit at Candlemas (February 2d), man, 120 Mo. App. 497, 97 S. W. 212; 
and it was held that, the landlord Magee v. Gilmour, 17 Ont. 620, 
could terminate the tenancy, the to this effect. The question is left 
lessee having entered and paid undecided in Reeder v. Sayre, 70 N. 
rent, at Candlemas only, and not Y. 180, 26 Am. Rep. 567. 
at Lady day. If the lease was for 452 Johnson v. Albertson, 51 Minn, 
seven years from Lady Day, a provi- 333, 53 N. "W. 642; Goodwin v. Clover, 
sion that the lessee should quit at 91 Minn. 438, 98 N. W. 322, lOS Am. 
Candlemas would seem to be ineffiec- St. Rep. 517. 
tlve. Presumably the lease was for •tss See post, § 25 g (4). 
seven years less the interval between *^* Beale v. Sanders, 3 Bing. N. C. 
Candlemas and Lady day. 850. 

44» Berrey v. Lindley, 3 Man. & ^ss Richardson v. Gifford, 1 Adol. & 

G. 498; Doe d. Tilt v. Stratton, 4 E. 52. 

Bing. 446. *=" O'Leary v. Delaney, 63 Me. 

460 Tress v. Savage, 4 El. & Bl. 36. 584, where it was held that an 

*5i See Hollis v. Pool, 44 Mass. (3 agreement by the lessor, upon mak- 

Metc.) 350; Butts v. Fox, 96 Mo. ing an oral lease within the statute 



252 CREATION OF THE REiLAT'ION. § 25 

It is diffieiilt t® asoertain ir&m. the ideci^oMs the theory upoH 
which the courts have acted in thus giving ^efeet to the terms of 
the lease, while at the same time regardiag the lease as invalid. 
So far as concerns the ex-eentory stipulations oi the parties, enter- 
ed into by them at the time of the attempted conveyance o£ a term, 
it would seem that the question of their leiffie&tiveness is simply a 
question whether, the conveyance being void, stipulations entered 
into with reference to the interest sought to be conveyed can be 
regarded as in force. There are decisions that covenants entered 
into by a lessee are not biading if no leasehold interest is created 
by reason of the lessor 's failure to execute the instrument of 
lease,*^'' and there is a strong analogy between the two cases. On 
the other hand it may be claimed that the statute of frauds, inval- 
iditing a lease if not in writing, means by this merely a convey- 
ance by way of lease, and has no reference to the executory stipu- 
lations (contracts) which the parties may choose to enter into in 
connection with such 'conveyance, and that, therefore, they should 
be bound to carry ihem "Vkt so far as is possible. On this theory, 
however, the liabilities of the parties by reason of their exeentory 
stipulations would be independent of the lessee's entry on the 
land, and the lessee could, for instance, not avoid liability on his 
contract to pay rent or to make repairs by refusing to enter. But 
the cases appear to regard his entry as necessary for the purpose 
of imposing on him any liability whatsoever. It seems, further- 
more, that a distinction might occasionally exist between the case 
of possession under a written lease, invalid for some 'cause, and 
that of possession under an oral lease, as regards the binding ef- 
fect of stipulations to be performed by one or the other of the 
parties, since such a. stipulation might, in the latter case, be invalid 
under the fourth section of the English statute, or the local eqmiv- 

of frarads, to repair the premises, land could not sue on tlie promise 

could not be enforced, tliougli tlte to pay for flxtures and improve- 

lessee had entered and paid r-ent. ments, since the agreement to take 

The decision is hased on McMullen v. la lease was invalid within the stat- 

Riley, 72 Mass. (6 Gray) 500, where, ute. Citing Vaughan v. Haiieoek, 

iiowever, -n© possession was taken 3 C. B. 766, which is exactly in point 

by the intended lessee, and it wus to this eHect, it ibeing said that the 

apparently merely decided that an agreement was invalid under the 

oral agreement to accept a lease and fourtti section of the statute of 

to pay for fixtures or improvements frauds, 

was entire, and the owner of the 457 gee post, § 53 a. 



§ 25 NECESSITY OF WRITING. 253 

alent thereof, as an oral agreem&nt eoncermng an interest in land, 
or as one not to be perf ormect within a year, without reference to 
the validity, under the first section, of the lease as a eonreyanee.*«8 
No such distinction seems, however, to have been sTiggeated', aad 
the standard English text-books state broadly that if the lessee 
enters and pays rent under a ' ' void ' ' lease, he is bound by the stip- 
ulations thereof so far as applicable to the class of tenancy thus 
created.*59 go far as concerns the language of the invalid lease 
with reference to the length of the term, it is impossib-le to see on 
what theory, the lease itself being invalid as a conveyance, it can 
be considered for the purpose of fixing the period of the tenancy. 
Ihe limitation! of the term is an integral part of the conveyance. 

(3) Leas© not valid for part of term. In the absence of a stat- 
utory provision to the contrary, an oral lease within the statute 
of frauds is not to be regarded as invalid only for the excess over 
the period fo-r which an oral lease isr valid.. For instance, an oral 
lease for ten years is not valid for one yearjfeieeause the statute al- 
lows an o^al lease for one yeaF.*®" Therg^'aire, however, occasional 
ittdicial assertions to the eontrary.^si And in two' states there 
are statutory provisions expressly validating the lease for the pe- 
riod of one year.*®2 

«8 See post, § 53 b, at notes 56-59. Nickolls v. Barnes, 39 Neb. 103, 57 

*59 See Woodfall, Landl. £ Ten. N. W. 990-, this holding is in terms 

(16th Ed.) 136; Fawcett, Landl. & approved, but the opinion subse- 

Ten. (3d Ed.) 94. quently says that the lessee becomes 

460 Thamais v. Nelson, 69 N. Y. 118; a tenant by the year In such case. 
Xjaughran v. Smith, 75 N. Y. 205; 462 in Arkansas (Kirby's Dig. St. 
Wilder v. Stace, 61 Hun, 233, IE N. 1904, § 3664) It is provided that 
Y. Supp. 870; Williams v. Mershon, parol leases "shall have the force 
57 N.. J. Law,. 242, 30 Atl. 619. This and effect of leases or estates at will 
is. in effect conceded by the numer- only, and shall not, either in law or 
&aa cases regarding as invalid, a equity, be deemed or taken to have 
lease for longer than the excepted any other or greater effect or force 
period. If such a lease were valid than as leases not exceeding the 
in part, it would be so stated. term of one year." In Bl-ockway 

461 Smith V. Hornhack, 14 Ky. (4 v. Thomas, 36 Ark. 518,. it is said, 
Litt.)i 232, 14 Am. Dec. 122; Shep- after referring to "the obvious ob- 
bfird V. Cummings,, 41 Tenn. (1 scurity" of this section, that "under 
Cold.) 354. In Priedhflff v. Smith, ita provisions,, and in accordance 
13, Neb. 5, 12 N. W. SMy it is decided with, its intent, a parol lease of three 
that tS the lessee entera and pays years may have such vitality as to 
rent, the lease is good for one year, support agreements with regard to 
the time excepted in. the statute. In the subject-matter, and, for the 



254 



CREATION OF THE RELATION. 



25 



(4) Lessee's liability for rent or for use and occupation. If 

the lessee enters under a lease within the statute, he becomes liable 
for the value of his use and occupation. That an action for use 
and occupation will lie in such a case has frequently been de- 
cided,*''^ and the recovery in such action will, it is said, be meas- 
ured by the amount of rent agreed on, if there was any agreement 
in this regard.*®* Occasionally it has been asserted that the les- 



purposes of justice, be enforced for 
one year, although made for a longer 
time. * * * If it were true that 
the improvements were made under 
such a contract, as some of the evi- 
dence tended to show, the lease 
should have force during one year 
at least, if necessary to protect the 
tenant in his expenditures." 

In South Carolina, Civ. Code 1902, 
§ 2416, provides that "no parol lease 
shall give a tenant a right of pos- 
session for a longer term than 
twelve months from the time of 
entering on the premises; and all 
such leases shall he understood to 
he for one year, unless it be stipu- 
lated ■ to he for a shorter term." 
Section 2650 is substantially the same 
as the first and second sections of 
the English statute, except that one 
year is substituted for the three 
years of such second section. It is 
there held that a parol lease for over 
twelve months gives a tenant a right 
of possession for a term of twelve 
nionths from the time of his entry 
on the premises, and that after such 
twelve months it has the effect of an 
estate at will only, while if the land- 
lord refuses to allow the tenant to 
enter, the former is not liable even 
though the lease Is for less than 
twelve months. See Hillhouse v. 
Jennings, &0 S. C. 392, 38 S. B. 596; 
Matthews v. Hipp, 66 S. C. 162, 44 S. 
E. 577; Davis v. Pollock, 36 S. C. 
544, 15 S. E. 718. 
•463 Parker's Adm'r v. HoUis, 50 



Ala. 411; Simith v. Pritchett, 98 
Ala. 649, 13 So. 569; King v. Wood- 
ruff, 23 Conn. 56, 60 Am. Dec. 625; 
Walker v. Shackelford, 49 Ai'k. 503, 
5 S. W. 887, 4 Am. St. Rep. 61; 
Ragsdale v. Lander, 80 Ky. 61; Jen- 
nings V. McComb, 112 Pa. 518, 4 Atl. 
812; Sutton v. Graham, 80 Miss. 636, 
31 So. 909 (semble); Robb v. San 
Antonio St. R. Co., 82 Tex. 392, 18 
S. W. 707; Scott v. Hawsman, 2 Mc- 
Lean, 180, Fed. Cas. No. 12, 532; 
De Medina v. Poison, Holt N. P. 47; 
Van Arsdale v. Buck, 82 App. Div. 
383, 81 N. Y. Supp. 1017; Mcintosh 
V. Hodges, 110 Mich. 319, 68 N. W. 
158, 70 N. W. 550. 

In Greton v. Smith, 33 N. Y. 245, 
after the lessee had entered under 
the verbal lease, the lessor threatened 
to expel the lessee and offered the 
premises to others, and the lessee 
then left, the lessor reisuming control 
and leasing to a third person, and 
it was held that' in view of the les- 
sor's "disclaimer of the agreement, 
and his interference with the pos- 
session of the lessee," he could not 
hold the lessee liable for use and 
occupation "under the rule, which, 
at the election of the landlord, gives 
effect to a parol lease, void by the 
statute of frauds, by implying a 
tenancy from year to year." This 
perhaps means that the tenant was 
evicted, and that consequently there 
was no further liability on his part. 

464 King V. Woodruff, 23 Conn. 56, 
60 Am. Dec. 625; Roberts v. Tennell. 



25 



NECESSITY OF WRITING. 



255 



see so entering can be held liable only in use and occupation.^^s 
but it seems that the fact that the lessee after entering pays the 
rent at the rate named, and that such payment is accepted, is evi- 
dence of an actual demise at such rent, and that the rent may be 
recovered in an action of debt or special assumpsit as well as in 
an action for use and occupation. In support of this view are 
the decisions to the effect that a distress may be levied for the 
sum named in the lease,*®^ since distress is permitted only where 
there is a certain rent reserved.*^'' In a number of cases the liabil- 
ity of the person entering under an oral lease within the statute 
is spoken of as a liability for "rent" measurable by the terms of 
the oral letting, without any suggestion that there is a liability in 
use and occupation only.*^* The lessee is evidently not liable in 



19 Ky. (3 T. B. Mon.) 247; Jennings 
V. McComb, 112 Pa. 518, 4 Atl. 812; 
De Medina v. Poison, Holt N. P. 47; 
Marr v. Ray, 151 111. 340, 37 N. E. 
1029, 26 L. R. A. 799 ; and authorities 
cited post, note 468. Contra, Rags- 
dale V. Lander, 80 Ky. 61 (semble). 

In Bain v. McDonald, 111 Ala. 269, 

20 So. 77, it is said that the agree- 
ment is admissible as evidence as to 
the amount of the recovery, and that 
the recovery cannot exceed the sum 
promised to be paid, but that if this 
sum exceeds the reasonable value of 
the use and occupation there can be 
no recovery of the excess, as other- 
wise the void agreement would be 
given effect. 

466 Warner v. Hale, 65 111. 395; 
Chicago Attachment Co. v. Davis 
Sewing Mach. Co., 142 111. 171, 31 N. 
E. 438, 15 Li. R. A. 754; Marr v. 
Ray, 151 111. 340, 36 N. E. 1029, 26 L. 
R. A. 799; Bain v. McDonald, 111 
Ala. 269, 20 So. 77 (semble). 

466 Marr v. Ray, 151 111. 340, 36 N. 
E. 1029, 26 L. R. A. 799; Roberts v. 
Tennell, 19 Ky. (3 T. B. Mon.) 247; 
Edwards v. Clemons, 24 Wend. (N. 
Y.) 480. In Schuyler v. Leggett, 2 
Cow. (N. Y.) 660, a distress for the 



rent reserved by the invalid lease 
was upheld, though, so far as ap- 
pears, there had been no payment of 
rent. 

*67 See post, chapter XXXII. 

468 Crawford v. Jones, 54 Ala. 459 ; 
Smith V. Pritchett, 98 Ala. 649, 13 
So. 569; Cody v. Quarterman, 12 Ga. 
386; Nash v. Berkmeir, 83 Ind. 536; 
Goodwin v. Clover, 91 Minn. 438, 98 
N. W. 322, 103 Am. St. Rep. 517; 
Ohio & M. R. Co. V. Trapp, 4 Ind. 
App. 69, 30 N. E. 812; Reeder v. 
Sayre, 70 N. Y. 180, 26 Am. Rep. 567; 
Kernochan v. Wilkens, 3 App. Div. 
596, 38 N. Y. Supp. 236; Schuyler v. 
Leggett, 2 Cow. (N. Y.) 660; Evans 
V. Winona Lumber Co., 30 Minn. 515, 
16 N. W. 404; Steele v. Anheuser- 
Busch Brew. Co., 57 Minn. 18, 58 N. 
W. 685; Currier v. Barker, 68 Mass. 
(2 Gray) 226; Inhabitants of East- 
ham V. Anderson, 119 Mass. 526; 
Toan V. Pline, 60 Mich. 385, 27 N. W. 
557; Barlow v. Wainwright, 22 Vt. 
88, 53 Am. Dec. 79; Arbenz v. 
Exley, Watkins & Co., 52 W. Va. 
476, 44 S. E. 149, 61 L. R. A. 957; 
Norris v. Morrill, 40 N. H. 395. 

If the lessee occupies for the full 
term of the lease, he cannot defend 



256 



CREATION OF. THE' KHILATION. 



f'25 



use and ©ccupation if he does not enter on th« premises.*^* 

There is an English decision snggesting a possibility that if the 
lessee enters and occupies, he may be held liable for the whole of 
the term named on the occasion of the invalid letting, though he 
retains possession for part only of that term.*'^" 

In several cases it is said that the liability of the lessee who takes 
possession claiming under a lease within the statute is measured 
by the terms of the lease as regards the time of payment of rent 
as well as its amount.^^i 

There are occasional decisions to the effect that if the lessee en- 
ters under the invalid letting, one who guaranteed the payment 
of the rent may be held liable upon his guaranty.*'^- It is not en- 



an action on notes given for rent 
on the ground that the lease was 
within the statute. Gibson v. Wil- 
eoxen, 16 Ind. 333; Dagerfelt v. Mc- 
Kie, 100 Ala. 430, 14 So. 281. 

*89 Mathews v. Carlton, 189 Mass. 
285, 75 N. B, 637. 

470 Slnallwood v. Sheppards [1895] 
2 Q. B. 627. In that case there was 
an agreement that A should have 
the exclusive possession of Bis lan<i 
on three certain ho-lidays duTing the 
year, for which A was to pay a 
"lump" sum', and it was held' that, A 
having en-tered on the land on one 
of these days and paid one-third of 
this sum, he was liable for the bal- 
ance, though he refused to occupy on 
the other two days (per Wright and 
Kennedy, J. J.). The court seems to 
have regarded the "agreement" as 
one for an interest in land within 
the fourth section of the statute, but. 
it is submitted, an agreement that 
one should have the exclusive pos- 
session of land IS a lease, and con- 
sequently, if for less than three 
years, is valid' under the second' sec- 
tion, and does not fall- within the 
fourth section as being an agrees 
ment. Ante, § 25 a. 

4"! Currier v. Barker, 68 Mass. (2 



Gray) 226; Reeder v. Sayre, 70 N. Y. 
180, 26 Am. Rep. 567; Barlow v. 
Wainwright, 22 Vt. 88, 53 Am. Dee-. 
79. In Norris v. Morrill, 49' N. H. 
395> it was held; that the oral lease 
was admissible to show the time 
for payment of rent, althougfc it 
named no time in this regard, it 
being left to the jury to find, "from 
an express agreement as t(* the 
iBKgth of the temr, an implied agree- 
ment as to the time of payment." 

*"2 In, Dufflee v. Maarsfield, 141 Pa. 
507, 21 Atl. 675,, the guarantor was 
heM liable, the court merely Baling 
"we need! not discuss the' legal efSeet 
of the omissiion of the lessor to sign 
the paper. It has no bearing upon 
the case. The lessee entered under 
the lease. So long as he remains 
in possession the surety is Bable." 

In Lehman v. Nolting, 5ft Mo. App. 
549, the liability of the guarantor is 
in terms baaed on the fact that the 
lessee entered and made some pay- 
ments in accordance with the reser- 
vation, the court saying that the 
guarantor, being assumed to know 
the law, must have contracted "un- 
der the assumption that the leesee 
would enter the premiises and pay 
rent as provided by the lease. And 



§ 25 NECESSITY OF WRITING. 257 

tirely clear how, the lease being invalid, the rent reserved thereby 
can be regarded as existing for the purpose of the guaranty. The 
rent which may become due by reason of the lessee 's entry is not 
that reserved, even though the amount thereof be the same.*''* 

(5) Part performance. The equitable doctrine that a contract 
which is not evidenced as required by the statute of frauds may 
be enforced if one party has done certain acts in part performance 
or upon the faith of the contract has been freely applied in this 
country to cases not in writing as required by the statute. In 
two states only, it appears, has this doctrine of part performance 
been regarded as inapplicable to the case of an oral lease.*''* In 
spite, however, of the frequency with which the view that this doc- 
trine is applicable in the ease of a verbal lease within the statute 
has been asserted by the courts, its soundness may be questioned, 
it is submitted, it having its origin in the mistaken idea that a lease 
is primarily a contract rather than a conveyance. 

knowing that such action on the part plication excludes the application of 
of the lessee made of him a tenant the doctrine in the case of a lease, 
from month to month, he guaranteed Hunt v. Coe, 15 Iowa, 197; Thorp v. 
the faithful payment of such rent Bradley, 75 Iowa, 50, 39 N. W. 177; 
under such tenancy." But, it would Burden v. Knight, 82 Iowa, 584, 48 
seem, he did not guarantee the rent, N. W. 985; Powell v. Crampton, 102 
a contract to pay which might be Iowa, 364, 71 N. W. 579. 
inferred from the possible entry and In Kentucky also it appears to be 
payment of rent by the lessee, but assumed that such a dictrine is in- 
an entirely different rent, that re- applicable (Wessells v. Rodifer, 30 
served on the attempted making of Ky. Law Rep. 51, 97 S. W. 341; Poole 
a lease for a term of years, which v. Johnson, 31 Ky. Law Rep. 165, 101 
reservation was void. S. W. 955,) though the lessee, if he 

"^ Keller v. Fisher, 7 Ind. 718, makes improvements, can remain in 
appears to be opposed to the view possession until he is reimbursed 
that the guarantor is liable. therefor. Poole v. Johnson, 31 Ky. 

474 In Iowa the doctrine of part Law Rep. 165, 101 S. "W. 955. In 
performance is held not to apply to O'Neal v. Orr, 68 Ky. (5 Bush) 649, 
the case of a lease for the reason It was decided that where a land- 
that the local statute of frauds con- lord promised his tenant, in consid- 
tains a provision that the statute eration of repairs and improvements 
shall not apply to a contract for the made by him, that he should retain 
purchaise or sale of land when part possession so long as he paid the 
of the purchase money has been paid agreed rent, he could not evict the 
or possession taken, and that this tenant without accounting for the 
provision as to part performance in improvements, though the promise 
the case of a sale of land by im- was invalid because not in writing. 

L. and Ten. 17. ' '"^ 



258 CREATION OF THE RELATION. § 25 

The doctrine of "part performance," and that of which it is a 
part, the doctrine of "specific performance," are in their nature 
applicable only to executory contracts, that is, to contracts calling 
for performance in the future. The expression "lease," as we 
have before remarked,*^'' is used in several senses, but its primary 
meaning is that of a conveyance, though it is used also to include 
the executory stipulations entered into by the parties at the time 
of the making of the conveyance. A conveyance by way of 
lease, whether valid or invalid, is not an executory contract, and is 
evidently incapable of "performance," either in whole or in 
part.*'^® "We might as well speak of the ' ' performance " of a con- 
veyance in fee simple. On the other hand, the executory stipula- 
tions entered into by the parties are capable of performance, be- 
ing indeed made to be performed, and any of them might be speci- 
fically enforced if of a character admitting of such relief, in ac- 
cordance with the established rules of equity on the subject. But, 
it would seem, such relief should be sought and awarded with ref- 
erence to each individual stipulation separately, and not to all 
"en masse," under the collective name of "lease," and the prac- 
tical application of the doctrine of part performance in connection 
with the enforcement of a single one of several such executory 
stipulations might involve considerable difficulty. It may be re- 
marked that the cases in this country, applying the doctrine of 
part performance in connection with an oral lease, quite frequently 
cite as authorities English cases in which the doctrine was ap- 
plied to executory agreements to make a lease, without, appar- 
ently, any appreciation of the distinction between the two classes 
of transactions. 

The least unsatisfactory theory perhaps on wTiich to support the 
decisions that "part performance," so-called, of an oral lease, 
will take it out of the statute of frauds, is that such a lease is to be 
construed as an oral contract to make a lease, and that it is this 
contract which is the subject of the part performance.*^''' Such a 

475 See ante, § 16. under seal, has been in several cases 

*'« See remarks of Sharswood, C. construed as a valid contract for a 

J., in Kemble Coal & Iron Co. v. lease, of which specific performance 

Scott, 90 Pa. 332. would be decreed (Parker v. Tas- 

477 In England a lease *hich is, by well, 2 De Gex & J. 559; Bond v. 

the terms of the statute 8 & 9 Vict. Rosling, 1 Best & S. 371; RoUason v. 

c. 106, invalid as such because not Leon, 7 Hurl. & N. 73). No case ap- 



§25 



NECESSITY OP WRITING. 



259 



view appears, however, never to have been judicially suggested. 

There are a number of cases in which it is asserted that the doc- 
trine of part performance in connection with an oral lease can be 
applied only in equity,*''^ and that the doctrine is purely equitable 
is ordinarily recognized.^^* But in a considerable number of cases 
the courts have, in connection with such a lease, ignored this dis- 
tinction, regarding "part performance" as sufficient to validate 
the lease for all purposes at law as well as in equity. These de- 
cisions may presumably be regarded as to some extent an out- 
growth of the statutory merger of law and equity,**" though, so 
far as appears from the language of the courts, they may be the 
result merely of a misunderstanding of the doctrine of part per- 
formance. 

As before stated, by numerous decisions, a lessee under aD oral 
lease entering thereunder and paying rent becomes a tenant at 
will or a periodic tenant.**^ So far as the doctrine of part per- 
formance may in any jurisdiction be regarded as applicable at law 
to an oral lease, and such entry and payment of rent may be re- 
garded as constituting such part performance,**^ it would seem 



pears, however, in which this prin- 
ciple has been applied to an oral, as 
distinct from an unsealed, lease. 

478 Brockway v. Thomas, 36 Ark. 
518; Warner v. Hale, 65 111. 395; 
Creighton v. Sanders, 89 111. 543; 
Leavitt v. Stern, 159 111. 526, 42 N. 
B. 869; Chicago & N. W. R. Co. v. 
Miller, 233 111.. 508, 84 N. E. 683; 
Hunt v. Ooe, 15 Iowa, 197; Tram- 
mell V. Craddock, 100 Ala. 266, 13 So. 
911; Cram v. Thompson, 87 Minn. 
172, 91 N. W. 483; "Spota v. Hayes, 
36 Misc. 532, 73 N. Y. Supp. 959; 
Birckhead v. Cummins, 33 N. J. Law, 
44; Smith v. Phillips, 69 N. H. 470, 
43 Atl. 183; Hawley v. Moody, 24 Vt. 
603. 

<7o See Browne, Stat, of Frauds 
(5th Ed.) § 448; 3 Pomeroy, Bq. Jur. 
§ 1409; 29 Am. & Eng. Bnc. Law (2d 
Ed.) 831. 

480 In England, since the fusion of 
law and equity by the Judicature 



Acts, it has been decided that the 
rule of equity has superseded that 
of law as regards a tenant in pos- 
session under a contract for a lease 
of which specific performance would 
be decreed, and that he is in the 
same position as if a lease had been 
executed, so far at least as concerns 
a court having jurisdiction both at 
law and in equity. See post, § 62, 
notes 14-18. Conceding that an act 
ual lease, as well as a contract for 
a lease, is a subject for the applica- 
tion of the doctrine of part perform- 
ance, the same principle would seem 
to be applicable in this country so 
far as there may have been, in the 
particular jurisdiction, a similar 
fusion of law and equity, with a pro- 
vision that in case of conflict the 
doctrines of equity shall be control- 
ling. 

481 See ante, § 25 g (1). 

482 See post, at note 487. 



260 CREATION OP THE RELATION. § 25 

to override the doctrine that the lessee is in such case a tenant at 
will or a periodic tenant, since he cannot be both that and also a 
tenant for the full term named.^ss in jurisdictions, on the other 
hand, in which this doctrine is regarded as applicable to an oral 
lease in equity only, the lessee under such a lease, entering and 
paying rent, is a tenant at will or a periodic tenant in a court of 
law, while in a court of equity he is a tenant for the full term 
named, if the lease is to be regarded as capable of specific enforce- 
ment. 

Assuming that the doctrine of part performance is properly 
applicable to an oral lease within the statute, the question arises, 
what acts constitute part performance of a lease. There are de- 
cisions to the effect that the delivery of possession by the lessor 
to the lessee, or the latter 's taking of possession, is sufficient 
for this purpose.*^* The possession must, however, appear to 
have been delivered and assumed in reliance on the alleged lease, 
and consequently the fact that one already in possession of land 
by a lease or otherwise continues in possession does not render ad- 
missible evidence of a new lease which is not in writing,*s5 unless 

4S3 In O'Connor v. Oliver, 45 Wash. 288. But the relation is created, it 

549, 88 Pac. 1025, the court consld- may be remarked, although the' 

ered that there was a case of part lessee does not retain possession 

performance, and at the same time, through the term, 

apparently, undertook to apply the In Myers v. Croswell, 45 Ohio St. 

doctrine that the reservation of a 543, 15 N. E. 866, it was held that 

periodic rent had the effect of mak- the taking by the lessee of posses- 

ing the holding periodic. sion of part of the leased premises 

484Rosser v. Harris, 48 Ga, 512; was not such part performance as 

Switzer v. Gardner, 41 Mich. 164, 2 validated the lease as to the balance, 

N. W. 191 (semble) ; Wharton v. if, by the terms of the lease, posses- 

Stoutenburgh, 35 N. J. Eq. 266; sion could not be taken of the bal- 

Moore v. Beasley, 3 Ohio, 294; Bless ance until a later date. It would 

V. Jenkins, 129 Mo. 647, 31 S. W. 938; have been held otherwise, it seems, 

Noland v. Cincinnati Cooperage Co., if all could be immediately taken 

26 Ky. Law Rep. 837, 82 S. W. 627. possession of. In Cockran v Ward, 

It has been said that if possession 5 Ind. App. 89, 29 N. E. 795, si N. 

iis actually taken under a verbal lease E. 581, 51 Am. St. Rep. 229, it is 

invalid under the statute, and the said that occupancy of part of the 

lessee retains possession through the premises by the lessee under an oral 

term, the lease is in effect thereby lease, and payment of rent for such 

validated, and the relation of land- part, gives him no rights as to the 

lord and tenant is created so as to balance. 

authorize an attachment for ad- 4,85 Simons v. New Britain Trust 

vances. Martin v. Blanchett, 77 Ala. Co.. 80 Conn. 263, 67 Atl. 883; Koch 



§25 



NECESSITY OF WRITING. 



261 



perhaps his continued possesion is unequivoeally referable to the 
new lease.**® The taking of possession and payment of rent by the 
lessee have also, together, been regarded as sufficient acts of part 
performance,**'^ though there are decisions to the contrary,*** de- 
cisions which obviously, in effect, deny the sufficiency of the taking 
of possession alone. If the delivery of possesion is followed by the 
making of beneficial improvements on the land by the lessee on the 



V. National Union Bldg. Ass'n, 137 
111. 497, 27 N. B. 530; Railsback v. 
Walke, 81 Ind. 409; Maiana v. Blunt, 
20 Iowa, 142; Rosenthal v. Free- 
burger, 26 Md. 75; Spalding v. Con- 
zelman, 30 Mo. 177; Armstrong v. 
Kattenhorn, 11 Ohio, 265; Crawford 
V. Vfixik, 18 Ohio St. 190; Jones v. 
Peterman, 3 Serg. & R. (Pa.) 543, 
8 Am. Dec. 672; Dechenbach v. 
Rima, 45 Or. 500, 78 Pac. 666. 

That the lessee, before the time 
named for the commencement of his 
term, by permission of a previous 
lessee, teipporarily places his goods 
on the premises, does not afEect the 
operation of the statute. Mathews 
V. Carlton, 189 Mass. 285, 75 N. E. 
637. 

486 Armstrong v. Kattenhorn, 11 
Ohio, 265. 

*87 Stautz V. Protzman, 84 111. App. 
434; Grant v. Ramsey, 7 Ohio St. 
157; Randall v. Thompson, 1 Will- 
son, Civ. Cas. Ct. App. § 1101; Kop- 
litz V. Gustavus, 48 Wis. 48, 3 N. W. 
754. 

In Alabama this conclusion is 
based on the terms of the statute 
(Code 1907, i 4289), which annuls 
all verbal agreements for the sale 
of land or any interest therein "ex- 
cept leases for a term not longer 
than one year, unless the purchase 
money, or a portion thereof, be paid, 
and the purchaser be put in posses- 
sion of the land by the seller." 



Shakespeare v Alba, 76 Ala. 351; 
Trammell v. Craddock, 100 Ala. 266, 
13 So. 911; A. G. Rhodes B^irnlture 
Co. V. Weedon, 108 Ala. 252, 19 So. 
318. 

In Watkins v. Balch, 41 Wash. 310, 
83 Pac. 321, it is said that entry and 
payment, by the lessee, of the rent 
for a fixed term under an oral lease, 
renders the lease good for the whole 
term. This is not stated to be an 
application of the doctrine of part 
performance, but presumably that 
is the idea intended to be conveyed. 

48S Humphrey Hardware Co. v. 
Herrick, 5 Neb. Unofe. 524, 99 N. W. 
233; Bard v. Elston, 31 Kan. 274, 1 
Pac. 565. 

In Nicholes v. Swift, 118 Ga. 922, 
45 S. E. 708, it is said that "if mere 
possession and occupation of the 
rented premises, with the landlord's 
consent, would be sufficient to make 
such a contract binding on the ten- 
ant for the term specified therein, 
the provision of the statute would 
be meaningless." Distinguishing 
Petty T. Kennon, 49 Ga. 468, as 
merely deciding that if, by the terms 
of an oral lease, the lessee was to 
repair and to be paid the cost of the 
repairs by the landlord, and was to 
have a right to remain until he was 
paid, he could not be ousted with- 
out payment. Steininger v. Wil- 
liams, 63 Ga. 475, does not appear 
to accord with Nicholes v. Swift. 



262 



CREATION OF THE RELATION. 



§25 



faith of the lease, there is no doubt a sufficient part perform- 
ance.*®® 

The payment of rent alone is not sufficient part performance, 
the lessee not having taken pos'session on the strength of the oral 
lease.**" If, however, a tenant holding over under a new lease, 



489 Morrison v. Peay, 21 Ark. 110; 
Steel V. Payne, 42 Ga. 207; Morrison 
V. Herrick, 130 111. 631, 22 N. E. 537; 
Bard v. Elston, 31 Kan. 274, 1 Pac. 
565; Benjamin v. Wilson, 34 Minn. 
517, 26 N. W. 725; Wharton v. Stou- 
tenburgh, 35 N. J. Eq. 266; Wilber v. 
Paine, 1 Ohio, 251; Wallace v. Scog- 
gins, 17 Or. 476, 21 Pac. 558; Jones 
V. Peterman, 3 Serg. & R. (Pa.) 543, 
8 Am. Dec. 672; Anderson v. Ander- 
son, 13 Tex. Civ. App. 527, 36 S. W. 
816; Gibbs v. J. M. Horton Ice Creain 
Co., 61 App. Div. 621, 71 N. Y. Supp. 
193; Veeder v. Horstmann, 85 App. 
Div. 154, 83 N. Y. Supp. 99; Adams 
V. Bonnefon, 124 Mo. App. 457, 101 
S. W. 693 (semble); O'Connor v. 
Oliver, 45 Wash. 549, 88 Pac. 1,025. 

In Wallace v. Scoggins, 17 Or. 476, 
21 Pac. 558, it was held that the 
lessee's removal of shrubbery to the 
premises, his purchase and laying 
down of carpets, and taking in of 
his winter's supply of fuel, consti- 
tuted part performance. 

That the lessee of rooms in a build- 
ing in course of construction, by 
agreement with the lessor, has, at his 
own expense, a more elaborate fin- 
ishing put Into the rooms than had 
been intended by the lessor, and has 
his sign put on the windows, does 
not take the case out of the statute. 
Wilder v. Stace, 61 Hun, 233, 15 N. 
Y. Supp. 870. 

In Winters v. Cherry, 78 Mo. 344, 
it was apparently decided that 
where, a year before the end of a 
lease, a new lease was made to 
include premises included in the old 



lease and additional premises, the 
lessor to fit up the latter, and the 
fitting up was done and the lessee 
was placed in possession of the addi- 
tional premises, the lessee was liable 
for rent reserved under the new 
lease, though he gave up possession 
at the end of the previous lease. 
The opinion is most obscure. 

In Smelling v. Valley, 103 Mich. 
580, 61 N. W. 878, an oral lease for 
two years was made, the rent to be 
paia by the lessee's services in clear- 
ing the land during the spring of 
the first year, and it was held that 
the lessor could maintain a sum- 
mary proceeding under the statute to 
recover possession as for nonpay- 
ment of rent, the lessee having failed 
to clear the land, that the lessee 
could not claim the notice to which 
a tenant from year to year or at 
will is entitled, and that, since he, 
having entered on the land and part- 
ly cleared It, could have enforced 
the lease in equity, he could not 
repudiate hie obligation to do the 
clearing on the theory that he would 
thereby pay rent for the whole term 
when he acquired no right to pos- 
session in return thereof. It seems 
to be assumed that the summary 
proceeding for nonpayment of rent 
does not lie if the lessee, by taking 
possession under an oral lease, be- 
came a tenant at will or from year 
to year. 

«o Rosen v. Rose, 13 Misc. 565, 34 N. 
Y. Supp. 467; Merchant's State Bank 
V. Ruettell, 12 N. D. 519, 97 N. W. 
853; Hawley v. Moody, 24 Vt. 603; 



§ 25 NECESSITY OP WRITING. 263 

invalid because oral, pays an increased rent, even a single install- 
ment merely, this might be regarded as sufficient part perform- 
ance, provided it can be shown to have been made in respect of the 
new lease.*9i Likewise, if-one already in possession under a lease 
makes beneficial improvements in reliance on a verbal renewal 
lease, the latter is taken out of the statute.*92 

It is to be observed that this doctrine of part performance has 
been applied in favor of the lessor as well as the lessee, that is, 
while part performance by the lessee has been held to entitle him 
to specific performance by the lessor,*93 or to retain possession 
for the term as against the lessor,*^* part performance by the les- 
sor has been held to entitle him to specific performance by the 
lessee,*^^ or to recover against the lessee on his covenant for 
rent.*38 Occasionally it seems to be thought that a part perform- 
ance by one party may render the lease enforcible against him as 
well as in his favor,*^''^ but this seems to lose sight of the whole 

Townsend v. Sharp, 2 Tenn. (2 in possession. Spalding v. Conzel- 

Overt.) 192; Webster v. Blodgett, 59 man, 30 Mo. 177. See Browne, Stat. 

N. H. 120, 47 Am. Rep. 179 ("parol of Frauds, § 480, and Brennan v. 

contract to lease land"). Bolton, 2 Dru. & War"! 349, -where it 

*9i It has heen so decided in ref- was so held as regards an agreement 

erence to a contract for a lease, for a lease. 

Wills V. Stradling, 3 Ves. Jr. 378; 493 Shakespeare v. Alba, 76 Ala. 

Nunn V. Fabian, L. R. 1 Ch. 35; 351; Morrison v. Peay, 21 Ark. 110; 

Miller v. Sharp [1899] 1 Cb. 622; Wallace v. Scoggins, 17 Or. 476, 21 

Spear v. Orendorf, 26 Md. 37. In Pac. 558; Morrison v. Herrick, 130 

Dahm v. Barlow, 93 Ala. 120, 9 So. 111. 631, 22 N. E. 537. 

598, it was decided that payment of *»< Steele v. Payne, 42 Ga. 207 ;' 

rent under a renewal lease, not exe- Rosser v. Harris, 48 Ga. 512; Bard 

cuted 'in compliance with the stat- v. Blston, 31 Kan. 274, 1 Pac. 565; 

ute, by the tenant previously in pos- Benjamin v. Wilson, 34 Minn. 517, 

session, took the case out of the 26 N. W. 725; Wilber v. Paine, 1 

statute. Ohio, 251; Dennis v. Hanson, 12 

*»2 Morrison v. Herrick, 130 111. Ohio Cir. Ct. R. 445, 1 Ohio Civ. 

631, 22 N. ES. 537, commented on in Dec. 465. 

Koch v. National Union Bldg. Ass'n, *96 Wharton v. Stoutenburgh, 35 N. 

137 III. 497, 27 N. E. 530; Witman v. J. Eq. 266. 

Reading, 191 Pa. 134, 43 Atl. 140. 406 Moore v. Beasley, 3 Ohio, 294; 

Compare Whiting & Co. v. Pitts- Bless v. Jenkins, 129 Mo. 647, 31 S. 

burgh Opera House Co., 88 Pa. 100. W. 938. 

The improvements must be of such *9t Christopher v. National Brew, 
importance as to be reasonably refer- Co., 72 Mo. App. 121; Grant v. Ram- 
able to the new lease, and not such sey, 7 Ohio St. 157. 
as are usually made by any tenant 



264 CREATION OF THE RELATION. § 2g 

theory of part performance, as being intended for the i)rotection 
of one who has performed on the supposition that the other party 
would recognize the transaction as valid.*®* 

§ 26. The form and parts of an instrtiment of lease. 

a. General considerations. An instrument of lease which sat- 
isfies all statutory requirements as to execution need not follow 
any particular form, it being sufficient that it show an intention 
on the part of the lessor, by the making thereof, to dispossess him- 
self of the tenements in question in favor of the lessee. A care- 
fully drawn instrument, however, ordinarily consists of the fol- 
lowing parts. 

At the beginning the names of the parties are stated,*®^ and the 
date is frequently here given, though often placed at the end. 
Next come the "recitals," if there are any, these being statements 
of fact explanatory of the transaction, and these are followed by 
the words of demise^"" with a description of the premises leased, '"^ 
and any exception in favor of the lessor or any reservatibn of an 
easement or right of profit.^*^ Then comes the habendum, which 
states the character and amount of interest conferred, as whether 
an estate for life, for years or at will, and, if an estate for years, 
the duration of the term, and then the reddendum, which states 
the character and amount of rent and the times of payment there- 
of. Thereafter are inserted any covenants entered into by the les- 
sor and lessee respectively,^''^ and lastly a clause providing for 
the lessor's re-entry on nonpayment of rent or other nonperform- 
ance of covenants on the part of the lessee. ^''^ 

b. Words of demise. The operative words of a lease are 
usually "lease" or "let," or "demise and lease," or "demise 
grant and farm let, ' ' but no particular words are necessary,^"' and 
"whatsoever word amounteth to a grant may serve to make a 
lease. "^'^^ Whatever words are sufficient to explain the intent of 

*88 See Brown Stat, of Frauds, § Barnsdale v. Boley, 119 Fed. 191; 

453. Brown v. O'Byrne (Ala.) 45 So. 129. 

499 The general rule that one who 5oo See post, § 26 b. 
merely signs a conveyance without soi See post, § 26 c. 
having been named therein is not to 602 See post, | 26 d. 
be regarded as a party thereto (2 sos See post, chapter V. 
Tiffany, Real Prop. § 380) is pre- 504 See post, § 194. 
sumably applicable to a lease as well sos See 2 Blackst. Comm. 31& 
as to a conveyance in fee. See 5oe Co. Litt. 45 b. 



§ 26 WORDS OF DEMISE. 265 

the parties, that the one shall divest himself of the possessiop and 
the other come into it for a determinate time, such words, whether 
they run in the form of a license, covenant or agreement, are of 
themselves sufficient, and will in construction of law amount to a 
lease for years as effectually as if the most proper and pertinent 
words had been made use of for that purposc^o^ So permission 
given by the owner to another to enter and take the profits of the 
landj^os or to occupy or inhabit it,^''^ may amount to a lease. In 
the case of a tenancy at will, as has been before indicated, ''i" the 
tenancy is ordinarily created by a lease of a most informal char- 
acter, a mere permission to take possession. Such a lease, is how- 
ever, usually not incorporated in a written instrument. 

While, as above stated, the word "license" may operate as a 
word of demise,"! it does not necessarily do so, and if the inten- 
tion is to give a right to enter for limited purposes only, and not 
the exclusive possession, the instrument cannot take effect as a 
lease, but a license only is created.^^^ 

507 Bac. Abr., Leases (K) 612. to begin October 1, 1870, for one 

And see "to the same effect West year at $150," was, in connection 

Chicago St. R. Co. v. Morrison, with evidence that the owner had 

Adams & Allen Co., 160 111. 288, 43 agreed to lease the premises, on 

N. E. 393; Duncklee v. Webber, 151 which there was a stable, sufficient 

Mass. 408, 24 N. E. 1082; Munson v. as a lease. In Barrett v. Johnson, 2 

Wray, 7 Blackf. (Ind.) 403; Alcorn Ind. App. 25, 27 N. E. 983, it was 

v. Morgan, 77 Ind. 184; Waller v. held that a provision in a contract 

Morgan, 57 Ky. (18 B. Mon.) 136; for the sale of land, that under cer- 

Moshier v. Reding, 12 Me. (3 Fairf.) tain circumstances the payments 

478; Fiske v. Framingham Mfg. Co., made by the purchaser "shall go 

31 Mass. (14 Pick.) 491; Mason v. towards paying rent on said lot at 

Clifford, 4 Fed. 177; Watson v. the rate of six dollars per month,'' 

O'Hern, G Watts (Pa.) 362; Buss- converted the contract into a lease 

man v. Granster, 72 Pa. 285; Mav- in that event, 

erick v. Lewis, 3 McCord (S. C.) sos Anonymous, 3 Salk. 223. 

211; Twiss v. Boehmer, 39 Or. 359, sos Drake v. Munday, Cro. Car. 

65 Pac. 18; Pickering v. O'Brien, 207; Tisdale v. Essex, Hob. 34; Doe 

23 Pa. Super. Ct. 125; Upper Appo- d. Jackson v. Ashburner, 5 Term 

mattox Co. v. Hamilton, 83 Va. 319, R. 163. 

2 S. E. 195. 5i« See ante, § 13 (a) (3). 

In Eastman v. Perkins, 111 Mass. sii Hall v. Seabright, 1 Mod. 14; 

30, it was held that a bill of sale of Trever v. Roberts, Hardres, 366; Y. 

hay, with a receipt for the price B. 5 Hen. 7, 1; Branch v. Doane, 17 

thereon, which concluded "Left at Conn. 402. 

stable on O. St., where A. P. (the 012 Anonymous, 3 Salk. 223; Wood 

purchaser) takes possession. Rent v. Lake, Sayer, 3. See ante, § 7. 



266 CREATION OF THE RELATION. g 26 

Even though there are no words of demise of any sort upon the 
part of the lessor, if an instrument as executed by him shows an 
intent to demise, there is a valid lease of the premises. If "one 
person agrees to take certain premises at a certain rent from a 
certain time, and both parties sign the paper, looking at the whole 
of such an instrument together, no body can doubt, that, though 
it contain no words of demise by the party who signs it as landlord, 
such an instrument would amount to a lease, because you cannot 
give effect to the signature, unless by supposing that there is an 
implied agreement to demise, besides the express words by which 
the tenant agrees to take."^^* So a mere offer to make a lease 
on certain terms, if accepted by the person to whom the offer is 
addressed, may constitute a lease,^i* as may an offer to accept a 
lease on (Certain terms, if assented to by the proposed lessor.*^* 
In the latter ease, however, the assent must be in writing in 
order to create a lease sufficient under the statute of frauds. 

c. Dsscription of premises — (1) Requirement of certainty, 
A lease, like any other conveyance, must describe the premises 
leased with sufficient certainty to render them capable of identi- 
fication.516 if it fails so to do, the lease transfers no interest to 

513 Alderson, B., in Gore v. Lloyd, Rutland-Canadian R. Co., 75 Vt. 375, 
12 Mees. & W. 463. 56 Atl. 7. 

514 So in Baer v. Mlnock, 128 Mich. It has been decided in Indiana 
676, 8 Det. Leg. N. 847, 87 N. W. that a lease of a certain number of 
1045, there was held to be a lease acres sufficiently describes the prem- 
for six months where, in pursuance ises, although it does not locate 
of oral negotiations, the owner of them, it being provided that the 
the land wrote to another: "Here- lessor shall locate them and he be- 
with please find receipt for advance ing prepared to do so. Indianapolis 
rent on the premises beginning May Natural Gas Co. v. Spaugh, 17 Ind. 
1st, 1900; rent $25 per month, first App. 683, 46 N. E. 691; Indianapolis 
six months," and the lessee replied Natural Gas Co. v. Pierce, 25 Ind. 
"All right." App. 116, 56 N. E. 137. And in Hunt 

515 Steinfleld v. Wilcox, 26 Misc. v. Campbell, 83 Ind. 48, it was held 
401, 56 N. Y. Supp. 217; Chapman v. that a lease of "not less than ten, 
Bluck, 4 Bing. N. C. 187. nor more than fifty acres," was made 

5i« Patterson v. Hubbard, 30 111. effective by a subsequent conveyance 

201 ; Diamond Plate-Glass Oo. v. to such lessee of specific land. These 

Teunell, 22 Ind. App. 132, 52 N. B. decisions seem to accord in principle 

168 ; Dixon v. Pinnegan, 182 Mo. Ill, with the EngliiSh decisions in re- 

81 S. W. 449; Bingham v. Honeyman, gard to wills (see Marshall's Case, 

32 Or. 129, 51 Pac. 735; Goodsell v. Dyer, 281, note, 8 Vin. Abr. 48, pi. U; 



§26 



DESCRIPTION OF PREMISES. 



267 



the lessee. It has been decided- however, that though the descrip- 
tion is insufficient, still if the lessee takes permissive possession of 
land belonging to the lessor, purporting to do so under the lease, 
he is liable for the stipulated rent, on the theory that this cures 
the uncertainty of description."" Presumably by this is meant 
that the fact that the lessee, with the consent of the lessor, takes 
possession of certain land, is evidence that the parties, by the 
language which they used, intended to designate this particular 
land.^i^ This would involve merely one application of the rule, 
supported by many decisions, that, in order to apply the language 
used in a description to particular land, evidence of extrinsic 
facts, "parol evidence" as it is ordinarily expressed, is admis- 
sible,"^^ a rule which is, however, it seems, subject to the proviso 



Tapley v. Eagleton, 12 Ch. Div. 683; 
Duckmanton v. Duckmanton, 5 Hurl. 
& N. 219; Jarman, Wills, 331. In 
Sheppard's Touchstone, 251, it is 
said: "If one be seised of two acres 
of land, and he doth lease them for 
life, and grant the remainder of one 
of them, and doth not say of which, 
to I. S., in this case, if I. S. make 
his election which acre he will have, 
the grant of the remainder to him 
will be good." If such a conveyance 
is •good when the election is made 
by the grantee, a fortiori, it would 
seem, it is good if the election is 
made by the grantor, especially 
when he is named to make it. 

617 Bulkley v. Devine, 127 111. 406, 
2* N. E. 16, 3 L. R. A. 330; Whipple 
V. Shewalter, 91 Ind. 114; Hoyle v. 
Bush, 14 Mo. App. 408; Weaver v. 
Shipley, 127 Ind. 526, 27 N. B. 146; 
Jackson v. Perrine, 35 N. J. Law, 
137; McLennan v. Grant, 8 Wash. 
603, 36 Pac. .682; Richards v. Snider, 
11 Or. 197, 3 Pac. 177. See, also, 
Outtoun V. Dulin, 72 Md. 536, 20 
Atl. 134. But see Dixon v. Finnegan, 
182 Mo. Ill, 81 S. W. 449. In Ap- 
pleton V. O'Donnell, 173 Mass. 398, 
53 N. B. 882, it is said that in such 



case, "even if the covenant did not 
bind as such, the law would imply a 
promise to pay at the promised 
rate." This apparently means that 
the lessee is liable in such case as 
for use and occupation, and the 
amount of rent reserved in the lease 
is evidence as to the value of the use 
and occupation. The grounds of the 
asserted distinction are not ex- 
plained. 

618 See Marske v. Willard, 169 111. 
276, 48 N. E. 290; 4 Wigmore, Evi- 
dence, §§ 2470, 2473. It Is sometimes 
said that the lessee is estopped to 
deny that the property thus taken 
possession of is that leased. But the 
usual elements of estoppel seem to 
be wanting. He has not misled the 
lessor to his prejudice. 

519 Doe d. Freeland v. Burt, 1 Term 
R. 704; Lyle v. Richards, L. 
R. 1 H. L. 222; Bulkley v. Devine, 
127 111. 406, 20 N. E. 16, 3 L. 
R. A. 330; Heyward v. Willmarth, 
87 App. Div. 125, 84 N. Y. Supp. 75; 
Trimble's Heirs v. Ward, 53 Ky. 
(14 B. Men.) 8; Sirey v. Braems, 65 
App. Div. 472, 72 N. Y. Supp. 1044; 
Durr V. Chase, 161 Mass. 40, 36 N. E. 
741; Dougherty v. Chesnutt, 86 



268 CREATION OP THE RELATION. § 26 

that the language of the description is not, in itself, definite and 
unambiguous.^^" 

The maxim falsa demonstratio non nocet is applicable to the de- 
scription in an instrument of lease as in any other conveyance, 
and, consequently, if there is a sufficient description of the prem- 
ises leased, an incorrect addition to the description, inserted to 
aid in identifying the property, may be rejected.^^i So, the prem- 
ises being clearly ascertained, an erroneous measurementj^^^ 
name,523 street number,s24 qj. reference to present occupancy,'*' 
may be rejected. 

(2) Scope and efiFect. If the description is certain in terms, 
it will be strictly applied, and nothing more will pass. Thus, it 
has been decided that if a farm or a house is described as being in 
the occupation of a particular person, only so much thereof as is in 
his occupation will pass, '^s and if it is described as being in a par- 
ticular city, only so much as is so situated will pass.'^T 

A lease of land, like any other conveyance thereof, passes the 
buildings as well as other structures thereon, which, as being "fix- 
tures," are legally a part of the land.'^® 

Tenn. 1, 5 S. W. 444; Mittler v. Her- Serg. & R. (Pa.) 456, 8 Am. Dec. 722; 

ter, 39 Misc. 843, 81 N. Y. Supp. 494; Lush v. Druse, 4 Wend. (N. Y.) 313. 

Harris v. Dub, 57 Ga. 77; Sargent 5=3 Rorke v. Errington, 7 H. L. 

V. Adams, 69 Mass. (3 Gray) 72, 63 Gas. 62 b. 

Am. Dec. 718; Schneider v. Patter- 524 Cowen v. Truefitt [1898] 2 Ch. 

son, 38 Neb. 680, 57 N. W. 398; Cham- 551. 

berlaln v. Letson, 5 N. J. Liaw (2 sss Wrotesley v. Adams, Plowd. 

South) 520; Guy v. Barnes, 29 Ind. 191; Doe d. Smith v. Galloway, 5 

103; House V. Jackson, 24 Or. 89, 32 Barn. & Adol. 43; Hlbbard v. Hurl- 

Pac. 1027. hurt, 10 Vt. 173. 

52oBalIance v. Peoria, 180 111. 29, sssMagee v. Lavell, L. H. 9 C. P. 

54 N. E. 428; Harris v. Oakley, 130 107; Morrell v. Fisher, 4 Exch. 591; 

N. Y. 1, 28 N. E. 530 ; Meredith Me- Alger v. Kennedy, 49 Vt. 109, 24 Am. 

chanic Ass'n v. American Twist Rep. 117. 

Drill Co., 66 N. H. 267, 20 Atl. 330; 527 Hall v. Combes, Cro. Eliz. 368. 

Morris v. Kettle, 57 N. J. Law, 218, 528 Sachs v. Henderson [1902] 1 K. 

30 Atl. 879; Knapp v. Marlboro, 29 B. 602; Townsend v. Ford, 72 App. 

Vt. 282. Div. 621, 76 N. Y. Supp. 501; St. 

521 See 4 Wigmore, Evidence, | Louis Public Schools v. Hollings- 
2476. worth, 34 Mo. 191. See cases cited 

522 Llewellyn v. Jersey, 11 Mees. & 13 Am. & Eng. Enc. Law (2d Ed.) 
W. 183; Manning v. Fitzgerald, 29 662 et seq. 

Law J. Exch. 24; Hall v. Powell, i By accepting a lease of premises. 



26 



DESCRIPTION OF PREMISES. 



269 



A lease in. terms of a house or other building prima facie in- 
cludes the soil covered thereby^^g ^q ^}^q outermost edge of the 
eaves or projections.^so it also may include a yard, garden or or- 
chard belonging to the house and used therewith,^^! or necessary 
to the convenient use of the building,532 and outhouses necessary 
for such use.^^* 

Though a lease of a building prima facie passes the soil or earth 
thereunder, it is possible to lease a building apart from the soil. 
It is a question of construction in each particular case whether 
a lease of a building includes the earth or soil, and, as above stated, 
there is a presumption in favor of such construction. So it is, it 
seems, a question of construction whether a lease of a part of a 
building includes the earth or soil.^^* If the lease is ia terms of a 
room or an apartment merely, it prima facie includes no part of 
the earth or soil,^^^ but there might be a lease in terms of a part 
of a building which would be so inclusive, as when a buildiag is 
leased by name and one room only is excepted therefrom. And in 
the case of one building, divided into two residences by a vertical 



one assumes no obligation to pay 
for fixtures thereon. GofE v. Harris, 
5 Man. & G. 573. 

529 McMillan v. Solomon, 42 Ala. 
356, 94 Am. Dec. 654; Humiston, 
Keeling & Co. v. Wheeler, 175 111. 
514, 51 N. E. 893; Hooper v. Pams- 
worth, 128 Mass. 487; Lanpher v. 
Glenn, 37 Minn. 4, 33 N. W. 10; Nash- 
ville, C. & St. L.. R. Co. V. Heikens, 
112 Tenn. 378, 79 S. W. 1038, 65 L. 
R. A. 298. 

530 Sherman v. Williams, 113 Mass. 
481, 18 Am. Rep. 522. 

BsiCo. Litt. 5 b, 56 b; Sheppard'a 
Touchstone, 94; Com. Dig., Grant 
(E) 6; note (1) to 2 Wms. Saund. 
(Ed. 1871) 806; cases cited 2 Tiffany, 
Real Prop. § 387. 

532 Bennett v. Brittle, 4 Rawle 
(Pa.) 339, where it was decided that 
the demise of a "barn" covered so 
much land only as was necessary for 
its use. See, also, Patterson v. Gra- 
ham, 140 111. 531, 30 N. E. 4fi0. 



B33Doe d. Clements v. Collins, 2 
Term R. 498; Armstrong v. Crilly, 
51 111. App. 504. 

03* In P. H. Snook & Austin Furn- 
iture Co. V. Steiner, 117 Ga. 363, 43 
S. E. 775, a lease of premises, de- 
scribing them by street and number, 
"including the second I'and third 
stories over the same, and including 
the kitchen in the rear of said prem- 
ises, and inclnding the second floor 
over" another building, was con- 
strued as a lease of the building 
alone. 

In Iranpher v. Glenn, 37 Minn. 4, 
33 N. W. 10, where the lease described 
the property as "the two-story (and 
rear basement) frame stores, and 
dwellings over head, situated on the 
westerly side of J. street," It was 
decided that the description covered 
the entire building and hence the 
lease passed an interest in the land. 

535 See ante, § 24 c. 



270 CREATION OF THE RELATION. § 26 

partition, it would be a question of construction whether a lease 
of one of such residences included the ground thereunder or ad- 
joining. 

A lease describing the premises as a certain number on a cer- 
tain street would generally, it seems, pass not only the land cover- 
ed by the building but also so much of the adjoining land as is en- 
closed and ordinarily used therewith and is necessary for its con- 
venient occupation and use.^^^ Such a description does not, 
prima facie at least, include a part of the building which is not 
accessible by the door to which the number is affixed.^*^ A pro- 
vision, in a lease which describes certain premises as the subject 
thereof, that the lessee shall have the right to use the adjoining 
land for certain purposes, does not, it seems clear, make the ten- 
ancy extend to such land.^^s 

A lease of a "farm" includes the farm house and farm buildings 
on the f arm,^*® and the fact that the farm house is specfieally men- 
tioned does not restrict the meaning of the word "farm" so as 
to exclude the other buildings thereon.s*" 

A lease, like any other conveyance, if of land bounded on a pub- 
lic or private way, prima facie passes the title to the center of 
the way if the lessor's title extends so far,**i and so, in the case 

536 Patterson v. Graham, 40 III. Me. 546, it was held that if the lessor 
App. 399; Id., 140 111. 531, 30 N. E. "covenants" that "in connection with 
668; Armstrong V. Crllly, 51 111. App. the above described premises" the 
504; Hosher v. Hesterman, 58 111. lessee "may use, occupy and im- 
App. 265; People v. Gedney, 10 Hun P'°^«" ^^^ adjacent lot for garden 
(N. Y.) 151. But in Schmidt v. P^irposes, except such portions as the 
n .*•* o T^ /-, /i T.;r . ^u ^ i™« lessor may sell or use for building, 
Pettit, 8 D. C. (1 MacArthur) 179, ,, , , ^^ • * ^t, 

the lessee has the possession of the 
it is assumed that such a descrip- adjacent lot, so as to justify an ac 
tion passes the building only, and ^^^^ „j trespass by him against the 
not the land thereunder. landlord. It would seem rather that 

537 Houghton V. Moore, 141 Mass. the lessee was given merely a license 
437, 6 N. E. 517; Hosher v. Hester- to go ^^^n the adjacent land for a 
mann, 58 111. App. 265. particular purpose, for an interfer- 

538 In Richardson v. Richardson, ence with which he could have sued 
75 Mass. (9 Gray) 213, it was held' the lessor upon his convenant. Tha 
that the lessee of part of a house, theory of the decision does not clear- 
with a right "to have the improve- ly appear. 

ment of all the homestead land," did 539 Sheppard's Touchstone, 93. 

not empower the lessee to grant a 540 Hay v. Cumberland, 25 Barb, 

license to a third person to use such (N. Y.) 594. 

land. But in Bryant v. Sparrow, 62 541 See In re "White's Charities 



§ 26 DESCRIPTION OF PREMISES. 271 

of a lease of land bounded on a stream, the bed of which belongs 
to the lessor, the lessee Requires title to the middle of the 
stream.'** 

A lease of the "east half" of certain land prima facie conveys 
a half computed by quantity, and not with reference to a line 
equally distant from the East and West boundaries.s*^ 

It has been said that all things which are on the premises for 
the purpose of making, and which do make, them fit as premises 
for the particular purposes for which they are used, will pass by 
a demise of the premises of such.'** This statement should, how- 
ever, it seems, be taken with some qualification. A lease of a par- 
ticular residence, though referred to as such in the lease, would 
not, it is presumed, ordinarily pass all furniture placed therein 
in order to make it suitable for residence purposes. 

A lease does not pass to the lessee the right to things found by 
him on or in the premises, of which neither party knows at the 
time of the lease,'*' even though he has a license to excavate for 
building purposes, and to remove and dispose of the soil excavated 
in the course of such operations, and though he finds the thing 
in question while making such excavation.'*^ 

A lease of a part of a building prima facie passes the outer wall 
adjacent to the rooms or apartment named as a part of the prem- 
ises leased, and consequently the lessee has the exclusive right to 

[1898] 1 Ch. 659; Hooper v. Farns- under a lease, and it was held that 
worth, 128 Mass. 487. See cases machinery in a factory should be 
cited 2 Tiffany, Real Prop. § 392. considered in determining the rat- 
5i2Ballance v. Peoria, 180 111. 29, able value of the factory. That a 
54 N. B. 428; Dwyer v. Rich, Ir. R. conveyance of a factory by name, 
6 C. L. 144. See 2 Tiffany, Real or by terms of description common- 
Prop: § 391. ly understood to embrace all its 

543 Hartford Iron Min. Co. v. Cam- essential parts, ordinarily includes 
bria Min. Co., 80 Mich. 491, 45 N. W. machinery therein, see 13 Am. & 
351 Eng. Enc. of Law (2d Ed.) at page 

544 Lord Esher, M. R., in Tyne 668, article "Fixtures," by the pres- 
Boiler Works Co. v. Overseers of ent writer. 

Longbenton, 18 Q. B. Div. 81. This 545 Ferguson v. Ray, 44 Or. 557, 

was a rating case, and it was said 77 Pac. 600, 102 Am. St. Rep. 648 

that the same standard would be (gold-bearing quartz deposited by 

applied in determing what was to be person unknown) . 

taken into consideration in determ- 546 Blwes v. Brigg Gas Co., 33 Ch. 

ing the ratable value of the premises Div. 562 (prehistoric boat). 

as In determining what would pass 



272 CREATION OF THE RELATION. | 26 

use such wall for advertising purposes.^*^ But the landlord, or 
the lessee of other parts of the building, no doubt retains an ease- 
ment in such walls for the purpose of supporting the balance of 
the building,^*^ and any serious changes in or injuries to the wall 
would be restrained. 

A lease of one of the lower floors of a building does not include 
the roof ,548^ and the same view has been taken of a. lease of the up- 
per floor,548b and, likewise, of a lease of all that part of the build- 
ing above the first floor.^**'' And even in the case of a one story 
building, the lease of a store therein has been construed as leav- 
ing the roof in the exclusive possession and control of the les- 
sQi.548a The lessee has, in such a case, of the lease of a part of 
the building, merely an easement in the roof for the purpose of 
protection from the weather.^**^ 

The lease of a floor or apartment ordinarily includes the ceiling 
thereof, so as to relieve the landlord from any obligations as to 
the repair of the ceiling during the tenancy.^**' 

d. Exceptions and reservations. The purpose and effect of 
an exception in a lease, as in any other conveyance, is to exclude 
from the operation thereof some part of that which is covered by 
the terms of the general description,549 while the office of a reser- 
vation is to secure to the grantor some new thing "issuing out of" 

5*7 Riddle V. Littlefleld, 53 N. H. dan, 26 N. Y. 501; Harris v. Ryding, 

503, 16 Am. Rep. 388; Baldwin v. 5 Mees. & "W. 60. 

Morgan, 43 Hun (N. Y.) 355; Lowell s^sa Shipley v. Fifty Associates, 101 

V. Strahan, 145 Mass. 1, 12 N. E. 401, Mass. 251, 3 Am. Rep. 346. 

1 Am. St. Rep. 422; Law v. Haley, 9 As to the lessor's liability for in- 

Obio Dec. 785; Carlisle Cafe Co. v. juries caused by defects In roof, see 

Muse, 67 Law J. Cb. 53, 77 Law T. post, § 88, at notes 326-337. 

(N. S.) 515. Fuller v. Rose, 110 548b o. J. Gude Co. v. Farley, 28 

Mo. App. 344, 85 S. W. 931, contains Misc. 184, 58 N. Y. Supp. 1036. 

a dictum tbat the lessee of a room sisc Valentine v. Woods, 110 N. Y. 

in a building has no such right. Supp. 990. 

A lessee of a storeroom in a one- 54sa Macnair v. Ames (R. I.) 68 

story building has no rights, it has Atl. 950. See Booth v. Gaither, 58 

been held, as to the use or control 111. App. 263 ; Payne v. Irvin, 144 III. 

of the space on the outer wall above 482, 33 N. E. 756. 

the ceiling joists. Booth v. Gaither, sise See post, § 88, at note 328. 

58 111. App. 263. B4sf See post, § 88, at note 319. 

548 See McConnel v. Kibbe, 33 111. b49 Co. Litt. 21 a; Sheppard's 

175, 85 Am. Dec. 265; Graves v. Ber- Touchstone, 77 et seq. 



§26 EXCEPTIONS AND RESERVATIONS. 273 

the thing granted-^^o By the common-law authorities, and by the 
modern English cases, nothing can be the subject of a reservation 
but a "rent" or other service.^^i But in this country the expres- 
sion is applied as well to any clause by which, upon a conveyance 
of land, an easement or right of profit is reserved for the benefit 
of the grantor.^^2 

The subject of an exception may be a part of the land itself, 
as when one makes a lease of certain described land, "saving and 
excepting" a specified part thereof, or it may be of the trees or 
other vegetable products of the soil growing thereon,^^^ or the 
minerals therein,^^* or of artificial annexations to the soil.**^" 

The term, ' ' exception ' ' is not infrequently applied to what may 
more properly be regarded as a reservation as creating a new right 
in_favor of the grantor or lessor, not previously existing, and so 
the term "reservation" is occasionally applied to what is properly 
as exception, as excluding from the operation of the conveyance 
some part of what would otherwise pass under the language of the 
description. The courts, in determining whether there is, in the 
particular case, an exception or a reservation, regard not the lan- 
guage used, but the character of the rights thereby created."' ^ 

An exception must be of part of the thing leased and not co-ex- 
tensive therewith, so as to be repugnant thereto."'^ Nor can it be 
of something already specifically leased, an exception, for instance, 
in a lease of twenty houses, of one of such houses, being void.''^ 

550 Co. Litt. 47 a; Sheppard's 24 S. W. 142, 25 S. W. 932; Sloan v. 
Touchstone, 78. Lawrence Furnace Co., 29 Ohio St. 

551 Durham & S. R. Co. v. "Walker, 568; Whitaker v. Brown, 46 Pa. 197; 
2 Q. B. 940; Doe d. Douglas v. Micklethwait v. Winter, 6 Exch. 644 ; 
Lock, 2 Adol. & E. 705; Wickham v. Tucker v. Linger, 8 App. Cas. 508. 
Hawker, 7 Mees & W. 63; Corpora- 555 Washingt»n Mills Emery Mfg. 
tion of London r. Riggs, 13 Ch. Div. Co. v. Commercial Fire Ins. Co., 
798. 13 Fed. 646; Badger v. Batavia Paper 

652 See authorities cited Tiffany, Mfg. Co., 70 111. 302; Sanborn v. 

Real Prop. §§ 316, 383. Hoyt, 24 Me. 118; Leonard v. Clough, 

553 Sheppard's Touchstone, 78; 133 N. Y. 292, 31 N. E. 93. 
Doe d. Douglas v. Lock, 2 Adol. & 556 2 Tiffany, Real Prop. § 383, 

E. 705; Jenney v. Brook, 6 Q. B. 323;' note 142. 

Heflin v. Bingham, 56 Ala. 566, 28 657 Sheppard's Touchstone, 78; 

Am. Rep. 776; Howard v. Lincoln, 13 Dorrell v. Collins, Cro. Bliz, 6. 
Me. 122; Putnam T. Tuttle, 76 Mass. bss sheppard's Touchstone (PreS' 

(10 Gray) 48. ton's Ed.) 78; Co. Lltt. 47 a. 

65*Snoddy v. Bolen, 122 Mo. 479, 

L. and Ten. 18. 



274 CREATION OF THE RELATION. § 27 

The exception must also describe the part excepted with such cer- 
tainty that it may be identified.''^^ 

An exception of ' ' all the woods ' ' has been construed as an ex- 
ception of all the soil on which the wood is growing,*^^ and it has 
been held that an exception of all the woods, underwoods, and 
copse, includes the land thereunder, unless a contrary intention 
appear.5^1 But an exception of "timber trees" has been held not 
to cover the soil,^^^ and the same view has been taken of an ex- 
ception of "all timber trees, wood, underwood, etc/'^es 

§ 27. Signing of the instrument. 

An instrument of lease, if intended to create an estate of such 
duration as to be within the statute of frauds, must be 
signed by the lessor in order to be operative,^^* unless 
perhaps the presence of his seal might be regarded as 
dispensing with the necessity of his signature.^^'* Even though 
there is no signature by the lessor satisfying the statute of frauds, 
if the lessee enters into possession and pays rent, he holds, accord- 
ing to some cases,^^^ as a periodic tenant upon the terms orally 
agreed upon, so far as they may be applicable to such a tenancy; 
and the writing, it seems, would be available in such case for the 
purpose of refreshing the recollection of either of the parties as to 
what were the agreed terms,^^'' and might also be admissible 
against either party as an admission in that respect, so far as it 
may have been adopted by such party .'^* 

Even though the ease is not within the statute of frauds, owing 
to the brevity of the interest intended to be created,^^^ it does not 
seem that such an unsigned writing would be admissible in evi- 

M9 Sheppard's Touchstone, 78. Langhran v. Smith, 75 N. Y. 205; 

660 ive V. Sams, Cro. Eliz. 521. Clemens v. Broonfield, 19 Mo. 118. 

561 Whistler v. Paslow, Cro. Jac. sos See Cherry v. Heming, 4 Exch. 
487. 631; Cooch v. Goodman, 2 Q. B. 580; 

562 Whistler v. Paslow, Cro. Jac. Pollock, Contracts (6th Ed.) 161; 
487. And see Pincomb v. Thomas, Williams, Real Prop. (18th Ed.) 152; 
Cro. Jac. 524. Browne, Stat, of Frauds, § 9. 

563Legh V. Heald, 1 Barn. & Adol. 566 See ante, § 25 g (2). 

622. 567 See 1 Wigmore, Evidence, § 734 

56^1 Mentzer v. Hudson Sav. Bank, et seq. 

197 Mass. 325, 83 N. E. 1102; Nick- 568 See 2 Wigmore, Evidence, I 

oils v. Barnes, 32 Neb. 195, 49 N. W. 1048 et seq. 

342; Id., 39 Neb. 103, 57 N. W. 990; 509 See ante, § 25 d. 



§ 27 SIGNING OP THE INSTRUMENT. 275 

dence to show the terms of the letting, it being indeed a legal nulli- 
ty ."^o and it would presumably be available, as in the other case, 
only to refresh the recollection of one of the parties as to the terms 
of the letting, or as an admission against his interest. 

The question whether an instrument of lease' not signed by the 
lessor, but signed by the lessee, can operate against the latter, so 
as to subject him to liability on covenants on his part contained 
therein, is considered in another connection,'^^! as is the question 
whether the lessee can be held liable on covenants on his part to 
be performed when the lessor alone signs the instrument.^^^ 

The first section of the English statute of frauds requires sign- 
ing merely "1by the parties making or creating" the leases or 
estates referred to in the statute. This seems plainly to mean that 
the lessor only need sign the lease ; and that the lease is valid to 
vest an interest in the lessee, although not signed by the latter, 
would no doubt be everywhere conceded.^''^ That a conveyance 
in fee simple is valid without the signature of the grantee is un- 
questioned, and greater formality could not be required in the con- 
veyance of a lesser estate. 

570 In Harris v. Harper, 48 Kan. thought that the entry of the lessee 
418, 29 Pac. 697, a different view validates a lease not signed by the 
seems to have been taken. There lessor. But In such case it is the 
the proposed lessee signed the lease permissive entry which creates a 
and handed it to the lessor to sign, tenancy. An entry by a lessee under 
but the latter failed to do so. The a lease not executed by the intend- 
lessee, however, took possession and ing lessor has no more effect in valid- 
cultivated the land, and it was held ating the lease than the entry of 
that the lease was valid, since the a grantee under an unsigned con- 
parties "had acted under it," and veyance in fee would have in validat- 
since also the lessee "signed the ing such a conveyance, 
lease" and the lessor "accepted it," s^i See post, I 53 a. 
the court comparing it to the case of =72 See post, § 53 b. 
the acceptance of a conveyance by ^73 See Crescent City Wharf ' & 
the grantee, which renders it bind- Lighter Co. v. Simpson, 77 Cal. 286, 
ing on the latter. It has never, how- 19 Pac. 426; Dodd v. Pasch, 5 Cal. 
ever, been decided that the grantor App. 686, 91 Pac. 166; Baltimore & 
is bound by a conveyance signed by O. R. Co. v. Winslow, 18 App. D. C. 
the grantee merely because he re- 438; Baragiano v. VlUani, 117 111. 
ceives it from the latter for signature App. 372; Lihbey v. Staples, 39 Me- 
without objection. Likewise, in 166; Braman v. Dodge, 100 Me. 143, 
Evans v. Conklln, 71 Hun, 536, 24 60 Atl. 799; Witman v. City of Read- 
N. Y. Supp. 1081, it seems to be ing, 191 Pa. 134, 43 Atl. 140. 



276 CREATION OF THE RELATION. | 28 

§ 28. Sealing of the instrument. 

The requirement of the statute of frauds that a lease be in 
writing and signed by the lessor does not involve any 
necessity that the instrument be sealed by him.^''* In 
England it is provided by statute that a lease which is 
required to be in writing must be sealed,^^^ and occasionally in 
this country it is provided by statute that a lease creating an in- 
terest in land greater than a term of a specified number of years 
must be under seals'^® It has, in England, been decided that a 
lease, not complying with the statutory requirement of a seal, may 
be regarded as a valid contract for a lease,^^ 7 and so, ordinarily, 
in a court of equity, such a lease would be regarded as a contract 
for a lease, specifically enforcible, the lack of a seal being conse- 
quently, in such a court, immaterial.^''® 

574 See Farmer v. Rogers, 2 Wils. terms provides that a "conveyance" 
26; Boggard V. Gale, 107 Ill.App. 128; or a "deed" shall be under seal,. 
Lake v. Campbell, 18 111. 106; Hill without clearly stating whether this 
V. Woodman, 14 Me. 38 (semble); includes a lease. The word "con- 
Gay V. Ihm, 3 Mo. App. 588; Hunt veyance" would seem, prima facie aX 
V. Hazelton, 5 N. H. 216, 20 Am. Dec. least, to include a lease. The word 
575; Den d. Mayberry v. Johnson, 18 "deed" itself properly means a sealed 
N. J. Law (3 J. S. Green) 116; Stod- instrument, as is recognized in Arb- 
dard v. Whiting, 46 N. Y. 627; enz v. Exley, Waltins & Co., 52 W. 
O'Brien v. Smith, 37 N. Y. St. Rep. Va. 476, 44 S. E. 149, 61 L. R. A. 
41, 13 N. Y. Supp. 408; Id., 129 N. Y. 957, where the statute providing that 
620, 29 N. B. 1029 ; Woolsey v. Henke, a lease for over five years shall be 
125 Wis. 134, 103 N. W. 267; Browne, "by deed" is assumed to require a 
Stat, of Frauds, § 6. sealed instrument. 

675 Stat. 8 & 9 Vict. c. 106. 577 See Bond v. Rosling, 1 Best & 

576 See e. g., Connecticut Gen. St. S. 371; Rollason v. Leon, 7 Hurl. & 

1892, §§ 4029, 4041 (Lease for over N. 73; Tidey v. Mollett, 16 C. B. (N. 

one year) ; Delaware Rev. Code 1893, S.) 298; Parker v. Taswell, 2 De Gex 

p. 866 (Unsealed lease good for one & J. 559. 

year only); Marj/Zorati Pub. Gen. Laws sts Such is the view adopted by a 

1904, art. 21, §§ 1, 10 (Estate above court of equity in regard to an 

seven years) ; Michigan Comp. Laws unsealed conveyance in fee. Wads- 

1897, § 8956 (semble) ; New Bamp- worth v. Wendell, 5 Johns. Ch. (N. 

shire Pub. St. 1901, c. 137, § 3 (sem- Y.) 224; Swltzer v. Knapps, 10 Iowa, 

ble); Ball. Ann. Codes Washington 72, 74 Am. Dec. 375; Jewell v. Hard- 

1897, § 4568 (Lease for over one ing, 72 Me. 124; Brinkley v. Bethel, 

year); West Virginia Code 1906, § 56 Tenn. (9 Heisk.) 786; Frost 

3020 (Lease for over five years) . v. Wolf, 77 Tex. 455, 14 S. W. 440, 19 

Not infrequently the statute in Am. St. Rep. 761. 



§ 23 SEALING OF THE INSTRUMENT. 277 

If the intended lessee enters and pays a periodic rent, he will 
ordinarily be, at law, a periodic tenant upon the terms stated in 
the instrument, so far as they are applicable to a tenancy of that 
character,^''* as is one entering under a lease void under the stat- 
ute of frauds.s*° 

It has been said that a lease for a life or lives, as distinct from 
a lease for years, must, since it creates a freehold interest, be un- 
der seal.^81 This seems questionable, in the absence of any local 
statutory requirement to that effect. At common law a lease for 
life, as any other conveyance of a freehold interest, took effect by 
livery of seisin alone, and if the words of limitation necessary to 
create the estate intended were used,^*^ and witnesses were present 
who could prove the use of such words, it was entirely immaterial 
whether they were put in writingji^ss though writing, on account of 
its greater certainty, was ordinarily employed, and writings were 
usually sealed.584 jt ■^yas j^ot until the enaetment.of the statute 
. of frauds that livery of seisin was required to be accompanied by 
writing in order to create a freehold estate, and this statute, while 
requiring the writing to be signed, imposed no requirement of a 

B79 Stewart v. Apel, 4 Houst. (Del.) seal for the creation of a freehold 

314, 5 Houst. 189; Arbenz v. Bxley, interest. 

"Watkins & Co., 52 W. Va. 476, 44 S. '^^^^ * conveyance in fee simple 

E 149 61 L R A 957 '^ perfectly valid, it would seem, 

without any seal, in the absence of a 
statutory requirement of a seal, or 
unless it is to be regarded as taking 
made without any discussion, m Doe ^^^^^ ^^ ^ conveyance by bargain 
d. Warner v. Browne, 8 East, 165 ^^^ ^^-y^ ^^^^ ^U^ ^^^^^^ ^j E^roH. 
(per Lawrence, J.) ; Browne v. War- ments is in force in the particular 
ner, 14Ves. Jr. 156 (perEldon.L. C). jurisdiction. See 2 Tiffany, Real 
These are referred to with apparent prop. § 403. There are, however, a 
dissaproval in Comyn, Landl. & Ten. number of cases which have decided 
p. 55, note. And that no seal was the contrary. Id. 
necessary, in the case of a lease for ssa No words of limitation were 
life, previous to the statute 8 & 9 necessary in the case of a lease for 
Vict., see 3 Preston, Abstracts of life. See Co. Litt. 42 a. 
Title, 114. To the same effect, ap- 5S3 Litt. §§ 214, 216; Co. Litt. 48 
parently, is 2 Piatt, Leases, 3. The b, 121 b, 143 a; Sheppard's Touch- 
decision in People v. Gillis, 24 Wend, stone, 203. See Challis, Real Prop. 
(N. y.) 201, to the effect that a (2d Ed.) 363; 2 Pollock & Maitland, 
lease for life requires a seal, is Hist. Eng. Law (2d Ed.) 83. 
based on the local statutory provi- 584 Williams, Real Prop. (18th 
sion there referred to, requiring a Ed.) 147. 



580 See ante, § 25 g (1). 

581 There are dicta to that effect. 



278 CREATION OF THE RELATION. § 29 

seal. The common-law requirement of livery of seisin has been 
dispensed with by statute in some jurisdictions, and in others it 
would no doubt be regarded as obsolete, but the withdrawal of 
the necessity of livery does not, it is conceived, introduce any ne- 
cessity of sealing. But a lease of an incorporeal thing, for how- 
ever brief a period, must, at common law, be by deed, that is, 
by a sealed instrument, since it lies in grant and not in livery,585 
and presumably this is the law in all jurisdictions where the effic- 
acy of a seal is still recognized and no statutory change has inter- 
vened.586 If, however, an incorporeal thing is appurtenant to 
land, it will ordinarily pass, though not expressly mentioned, by 
a lease of the land itself.^^'^ 

§ 29. Attestation of the instrument. 

In some states an instrument of lease, in order to create an inter- 
est of a specified duration, is required to be witnessed.^^* In one 
state it has been held that a want of such attestation will prevent 
the vesting of any legal interest in the lessee,®*^ but it more 
usually aifeets merely the validity of the lease as against third 
persons without notice of its contents.**®^ 

§ 30. Acknowledgment of the instrument. 

In many states it is provided by statute that an instrument of 
lease shall be acknowledged before an official.^"" Such a require- 

585 Somerset v. Fogyrell, 5 Barn. & (Lease for over one year); Wiscon- 

C. 875; Mayfield v. Robinson, 7 Q. sin Rev. St. 1898, §§ 2216, 2326. 

B. 486; Williams, Real Prop. (18th 689 Richardson v. Bates, 8 Ohio 

Ed.) 472. St. 257, 32 Am. Dec. 707; Abbott v. 

58S See cases cited 2 TifCany, Real Bosworth, 36 Ohio St. 605. So in 

Prop. § 403, note 333. Langmede v. Weaver, 65 Ohio St. 17, 

587 See post, § 125. 60 N. E. 992, it is said that a lease 

588 See e. g., Connecticu-t Gen. St. not witnessed as required by law is 
1902, § 4041; Maryland Pub. Gen. at most a mere contract for a lease 
Laws 1904, art. 21, §§ 1, 10; MicM- and conveys no interest in the land. 
gan Oomp. Laws 1897, § 8962 (sem- ssga Weaver v. Coumbe, 15 Neb. 
ble); Minnesota Rev. Laws 1905, § 167, 17 N. W. 357; Johnson v. Phoe- 
3346; NeI)rasJca Comp. St. 1905, § nix Mut Life Ins. Co., 46 Conn. 
4754 (Lease for over one year) ; New 92; Ripley v. Cross, 111 Mass. 41. 
Hampshire Pub. St. 1901, c. 137, §§ ssoSee e. g., Kirby's Dig. St. 
3, 4; Ohio Rev. St. 1906, § 4106; Ball. Arkansas 1904, § 742 et seq.; Cali- 
Ann. St. & Codes Washington § 4568 fornia Civ. Code, § 1161; Connecticut 



§31 



DELIVERY OF THE INSTRUMENT. 



279 



ment is ordinarily imposed only as a preliminary to the record of 
the instrument for the purpose of charging a subsequent purchaser 
of the land with notice thereof, and, though unacknowledged, the 
instrument is eifective as between the parties.^^'^ Occasionally, 
however, the acknowledgment is regarded as necessary to render 
the instrument effective for any purpose.''*^ In some states the 
lack of acknowledgment, as a prerequisite to record, may be sup- 
plied by proof by the witnesses of its execution.^^s 

§ 31. Delivery of the instrument. 

In order that a lease be effective to vest an interest in the lessee, 
it must be delivered,^^* that is, there must be an expression on the 



Gen. St. 1902, § 4041; Burns' Ann. 
St. Indiana 1901, i 3352; Maryland 
Code Pub. Gen. Laws 1904, art. 21, § 
1; Michigan Comp. Laws 1897, §§ 
8956, 8962; Minnesota Rev. Laws 
1905, § 3348; Missouri Rev. St. 1899, 
§ 906; Nehraska Comp. St. 1905, § 
4755; 2 Gen. St. New Jersey p. 1036; 
New Hampshire Pub. St. 1901, c. 
137, §§ 3, 4; Ohio Rev. St. 1906, § 
4106; Yermont Pub. St. 1906, § 2581. 

In Toupin v. Peabody, 162 Mass. 
473, 39 N. B. 280, it was decided that 
a lease for five years, with a covenant 
for renewal for five years, was a 
"lease for more than seven years 
from the making thereof," within a 
statute requiring such a lease to be 
recorded in order to be valid against 
a bona fide purchaser, so as to de- 
prive the lessee of the right to the 
renewal as against such a purchaser, 
if not recorded. The court reuses 
to say whether It would be invalid 
as against the purchaser as regards 
the first five-year term. 

591 Johnson v. Phoenix Mut. Ins. 
Co., 46 Conn. 92; Lake v. Campbell, 

18 111. 106; McCardell v. Williams, 

19 R. I. 701, 36 Atl. 719; Wihelm v. 
Mertz, 4 G. Greene (Iowa) 54; Wea- 



ver V. Coumbe, 15 Neb. 167, 17 N. W. 
357; Town of Lemington v. Stevens, 
48 Vt. 38. 

592 Anderson v. Critcher, 11 Gill & 
3. (Md.) 450, 37 Am: Dec. 72; Bro- 
hawn V. Van Ness, 1 Cranch, C. C. 
366, Fed. Cas. No. 1, 920; Richard- 
son V. Bates, 8 Ohio St. 257, 32 Am, 
Dec. 707. See Wm. W. Kendall 
Boot & Shoe Co. v. Bain, 55 Mo. App. 
264. 

In McGlauflin v. Holman, 1 Wash. 
St. 239, 24 Pac. 439, it is decided 
that though a lease is not acknowl- 
edged, if the lessee has taken pos- 
session and made improvements, he 
is entitled to specific performance. 
And see Mounts v. Goranson, 29 
Wash. 261, 69 Pac. 740. But see ante, 
§ 25 g (5) as to the theory of specific 
performance of a lease. 

593 See Michigan. Comp Laws 1897, 
§ 89Q9; Minnesota Rev. Laws 1905, § 
3347; 2 Gen. St. New Jersey p. 1036; 
NehrasTca Comp. St. 1905, § 4762; 
New York Real Prop. Law, § 241; 
Yermont Pub. St. 1906, §§ 2590-2596. 

594 Piper V. Simpson, 6 Ont. App. 
175; Howard v. Carpenter, 11 Md. 
259; Jordan v. Davis, 108 111. 336; 
Kelsey v. Tourtelotte, 59 Pa. 184; 
Whitford v. Laidler, 94 N. Y. 145, 46 



280 ■ CREATION OF THE RELATION. | 32 

part of the lessor, by word or act, of his intention that the lease 
shall take effect.^^^ The requisites of a valid delivery in the case 
of a lease are no doubt the same as in the case of any other con- 
veyance. In order that there be a valid delivery, it is not neces- 
sary that the written instrument itself be physically transferred 
by the lessor to the lessee, or to a third person on his behalf.^^' 
And, on the other hand, though there is such physical transfer, it 
does not constitute a delivery, if it is for a special purpose and 
the instrument is not intended to take effect.^^^ 

The fact that the lessor has the lease recorded ordinarily raises 
a presumption of delivery, but this presumption may be overcome 
by evidence that there was no intent on his part that it should be- 
come immediately operative.^^* It has been said that the fact 
that the lessee has gone into possession of the land raises a pre- 
sumption of delivery of the lease,^®^ but this can be so, it seems, 
only if the entry is with the lessor 's consent. 

A lease, like any other conveyance, may be delivered in escrow, 
that is, it may be deposited with a third person to be held by him 
until the performance of a condition by the lessee, whereupon it 
will take effect as of the time when it was so deposited.®"" 

§ 32. Acceptance of the instrument. 

In order that a lease may operate to vest an interest in the les- 
see, it is not necessary, it seems, according to the English decisions, 
that it be accepted by him, or, in other words, his acceptance will 

Am. Rep. 131; Stetson v. Briggs, 114 instrument was retained by the 

Cal. 511, 46 Pac. 603. lessee Instead of being returned to 

595 See 2 Tiffany, Real Prop. § 406, the lessor as was intended, and al- 
where the writer has discussed the though an inventory of certain per- 
subject of delivery at some length. sonal property included In the lease 

596 witman v. Reading, 191 Pa. was not attached to the copies of 
134, 43 Atl. 140; Reynolds v. Green- the lease was intended. 

baum, 80 111. 416; Oneto v. Restano, sds See authorities cited 2 Tiffany, 

89 Cal. 63, 26 Pac. 788. Real Prop., § 406. 

597 Jordan v. Davis, 108 111. 336. 599 David Stevenson Brew. Co. v. 
And see cases cited 2 Tiffany, Real Culbertson, 18 Misc. 486, 41 N. Y. 
Prop., § 406, note 376. Supp. 1039. 

In Lawrence v. Bell, 132 Ala. 308, soo Gudgen v. Bessett, 6 El. & Bl. 

31 So. 503, it was decided that there 986; Gorsuch v. Rutledge, 70 Md. 

was a sufficient delivery although 272; Wiitford v. Laidler, 94 N. Y. 

one of the duplicate copies of the 145, 46 Am. Rep. 131. 



§ 33 RECORDING OF THE INSTRUMENT. 281 

be presumed until he expresses his dissent.^o^ And this view 
would presumably be adopted in those states in which the courts 
have followed the English rule, that an acceptance of a conveyance 
in fee simple is not necessary to its validity .^'^^ In other states, 
however, in which a conveyance in fee simple is regarded as inval- 
id until accepted, a conveyance by way of lease would no doubt 
also be so regarded.*^^ But even in these states, if a lease is made 
to an infant, or other person, not sui juris, and it is of a beneficial 
character, it is valid even though not accepted by him, or, as it is 
sometimes expressed, there is in such case a presumption of ac- 
ceptance.*"* A lease to such a person is perfectly valid unless and 
until repudiated by him..^^ 

Though a lease is, as above stated, it seems, in some jurisdictions, 
valid, for the purpose of vesting an interest in the lessee, that is, 
as a conveyance, without any acceptance by him, he is not regard- 
ed as actually a tenant, as is explained later,^"^^ until he has en- 
tered on the premises. And until the lessee has in some way ac- 
cepted or adopted the lease, he cannot be held personally respon- 
sible upon the covenants contained in the instrument.*"^ His en- 
try on the premises is regarded as evidence of an acceptance for 
the purpose of imposing such liability on him.*"'' 

§ 33. Recording of the instrument. 

The statutes of many of the states require that a lease for a 
term greater than a period named in the statute*"'^" shall be.re- 

601 See 2 Piatt, Leases, 5; Gorton's 36 N. Y. Supp. 801; Majors v. Good- 
Case, 2 Rolle, Abr. 787; Thompson rich (Tex. Civ. App.) 54 S. W. 919; 
V. Leach, 2 Vent. 198, 201. Shelton v. Durham, 76 Mo. 434; 

802 See authorities cited 2 Tiffany, Ahrns v. Chartiers "Valley Gas Co., 

Real Prop. § 407. 188 Pa. 249, 41 Atl. 739 (semble) ; 

603 See State Board of Land Com'rs Goldberg v. Wood, 45 Misc. 327, 90 

V. Carpenter, 16 Colo. App. 436, 66 N. Y. Supp. 427. 
Pac. 165; Leiter v. Pike, 127 111. 287, so? See post, § 53 b, at note 53. 
20 N. E. 23; Castro v. Gaffey, 95 eoraA lease for five years with a 

Cal. 421, 31 Pac. 363; Burt v. Warne, covenant for renewal for five more 

31 Mo. 296. years has been regarded as a lease 

«oi See authorities cited 2 Tiffany, for more than seven years, within 

Real Prop. p. 937, note 400. Also 19 a statute requiring the record of 

Harv. Law Rev. 612. such a lease. Toupin v. Peabody, 

605 See ante, § 21 b (2). 162 Mass. 473, 39 N. E. 280; Leo- 
ooBaSee post, § 37. minster Gaslight Co. v. Hillery, 197 

606 Adams v. Doelger, 15 Misc. 140, Mass. 267, 83 N. E. 870. 



282 



CREATION OF THE RELATION. 



33 



corded,8"8 -^yitji ^^e result that if not recorded it is invalid as 
against a bona fide purchaser for value from the lessor,*"^ or a 
subsequent lessee,®!" or, occasionally, as against creditors of the 
lessor .^11 Such a requirement that a lease be recorded, as in the 
case of conveyances in fee, does not usually affect the validity of 
the instrument as between the parties,®!^ or as against third per- 
sons other than purchasers.®!^ In two or three states, however, 
the statute has been construed as invalidating the instrument for 
all purposes if not recorded.®^* 

In states where the requirement of record is regarded as intend- 



608 See e. g., Connecticut Gen. St. 
§ 4041; Burn's Ann. St. Indiana 1901, 
§ 3350 a; Maine Rev. St. 1903, c. 75, § 
11; Maryland Code Pub. Gen. Laws 
1904, art. 21, §§ 1, 10; Massachusetts 
Rev. Laws 1902, c. 127, § 4; New 
Hampshire Pub. St. 1901, c. 137, § 4; 
1 Gen. St. New Jersey, p. 857; New 
York Real Prop. Law, §§ 240, 241; 
North DaTcota Rev. Codes 1905, § 
5038; South Carolina Civ. Code 1902, 
§§ 214, 2456; South Dakota Civ. Code 
1903, § 986; Vermont Pub. St. 1906, 
§ 2581. 

It has been decided that a lease is 
a conveyance within a statute requir- 
ing a conveyance to be recorded in 
order to be effective as against a pur- 
chaser without notice. Milliken v. 
Faulk, 111 Ala. 658, 20 So. 594; 
Garber v. Gianella, 98 Cal. 527, 33 
Pac. 458; Commercial Bank of Santa 
Ana V, Pritchard, 126 Cal. 600, 59 
Pac. 130. Contra, Hutchinson v. 
Bramhall, 42 N. J. Eq. 372, 7 Atl. 
873 (in view of other statutory pro- 
visions). 

In Faxon v. Ridge, 87 Mo. App. 
299, it is decided that a lease is to 
be recorded in the real estate rec- 
ords, as being an "instrument where- 
by real estate may be affected," 
within the meaning of the statute. 

A mortgage of a leasehold is a con- 
veyance to be recorded among the 



real estate conveyances rather than 
among mortgages of chattels; see 
Westchester Trust Co. v. Hobby Bot- 
tling Co., 185 N. Y. 577, 78 N. E. 
1114. 

609 Milliken v. Faulk, 111 Ala. 658, 
20 So. 594; Toupin v. Peabody, 162 
Mass. 473, 39 N. E. 280; City Coun- 
cil of Charleston v. Page, Speer Bq. 
(S. C.) 159. 

6ip Thompson v. Christie, 138 Pa. 
230, 20 Atl. 934, 11 L. R. A. 236. 
Compare Hodge v. Giese, 43 N. J. 
Eq. 342, 11 Atl. 484. 

oiiClift V. Stockdon, 14 Ky. (4 
Litt.) 215; Flower v. Pearce, 45 La. 
Ann. 853, 13 So. 150; Chapman v. 
Gray, 15 Mass. 439. 

•512 Johnson v. Phoenix Mut. Life 
Ins. Co., 46 Conn. 92; Baldwin v. 
Walker, 21 Conn. 168; Lake v. Camp- 
bell. 18 111. 106; Kittle v. St. John, 
10 Neb. 605, 7 N. W. 271; Clarke v. 
Merrill, 51 N. H. 415. 

613 Barnum v. Landon, 25 Conn. 
137; Anthony v. New York, P. & B. 
R. Co., 162 Mass. 60, 37 N. B. 780. 

81* Brohawn v. "Van Ness, 1 Cranch, 
C. C. 366, Fed. Cas. No. 1,920; And- 
erson V. Critcher, 11 Gill & J. (Md.) 
450, 37 Am. Dec. 72; Polk v. Reyn- 
olds, 31 Md. 106; Baltimore & 0. R. 
Co. V. West, 57 Ohio St. 161, 49 N. B. 
344. 



§ 34 LEASE MADE BY AGENT. 283 

ed for the protection of purchasers only, notice of the lease on the 
part of the purchaser will be as effective as record for the protec- 
tion of the lessee.«i5 in most jurisdictions,, presumably, the fact 
that the lessee is in possession of the premises would be sufficient 
to charge a purchaser with notice of the lease.6i« 

It has been decided, in jurisdictions where a lease is invalid as 
between the parties if not acknowledged or recorded, that the les- 
see entering thereunder and paying rent is to be regarded as ten- 
ant from year to year upon the terms of the lease except as to du- 
ration,®^^ and that he holds upon the terms of the lease has been 
asserted, without reference to the question of payment of rent.^^* 
Ordinarily, it would seem, in accordance with the rules previously 
stated,**^ the lessee so entering would be in the first place a tenant 
at will, becoming a tenant from year to year or month to month 
upon payment of rent by him, according as the rent is a yearly 
or a monthly rent, or he might perhaps be regarded as a periodic 
tenant even without the payment of a periodic rent, by reason of 
the reservation of such a rent.^i®* 

§ 34. Lease made by agent, 
a. Agent's power to make lease. There have been occasional 

615 Whittemore v. Smith, 50 Conn, heirs," the lessee entering thereun- 
376; McCardell v. Williams, 19 R. der was, as regards a purchaser from 
I. 701, 36 Atl. 719; Anderson v. Har- the lessor, a tenant from year to 
ris, 1 Bailey Law (S. C.) 315. ' year upon the terms of the lease. 

616 It is so decided in Scherer v. Since the lease was, hy the terms of 
Cuddy, 85 Cal. 270, 24 Pac. 713; the statute, valid as regards the 
Haworth v. Taylor, 108 111. 275; Lee- lessor, the peculiar result follows 
brick V. Stahle, 68 Iowa, 515, 27 N. that the lessee was a tenant for the 
W. 490; Dishrow v. Jones, Har. term of the lease so long as the 
(Mich.) 48. But see Jokinsky v. property was retained by the lessor, 

I Miller, 44 Misc. 239, 88 N. Y. Supp. and became a tenant from year 
[928. to year upon its conveyance to an- 

617 Baltimore & O. R. Co. v. West, other. 

57 Ohio St. 161, 49 N. E. 344. oi9 See ante, §§ 14 b (2) (b), 25 

eisEmrich v. Union Stock Yard g (1). ^ 

Co., 86 Md. 482, 38 Atl. 943. ewa See ante, §§ 14 b (2) (b), 25 

In Thurber v. Dwyer, 10 R. I. g (1). 
355, it was decided that, though the In Baldwin v. Walker, 21 Conn, 
statute requiring a lease to be ac- 168; Wilson v. Griswold, 80 Conn, 
knowledged provided that it should be 14, 66 Atl. 783, it is apparently con- 
valid "between the parties and their sidered that if the statute requires 



284 CREATION OF THE RELATION. § 34 

decisions as to the authority of a person to make a lease or a par- 
ticular class of lease as agent on behalf of another. Thus it has 
been decided that one authorized to make a lease for three years 
cannot make one for that period with a provision for renewal,^*" 
and that one authorized to lease cannot bind his principal by a 
covenant to irrigate.^^^ Authority to collect rent does not in it- 
self authorize one to make a lease.^^^ There is one case in which 
it was apparently decided that an authority to take charge of land 
and obtain an income from it during the owner's absence from the 
country authorized the agent to make a lease, which was valid, 
however, only so long as the owner was absent.® 2* 

One taking possession under a lease made by one person pur- 
porting to act for another, but without authority from such other, 
does not become a tenant at will or periodic tenant under the as- 
serted principal, since his possession is without the letter's as- 
sent.® 2* The general rule as to the status of one entering imder an 
invalid lease®^^ cannot apply in such ease. If, however, the assert- 
ed principal accepts rent from the lessor, or otherwise expresses 
assent to his taking and holding of possession, the latter will be- 
come a tenant at will or periodic tenant, as the case may be. 

b. Form of authorization. The first section of the English 
statute requires leases to be in writing and signed by the parties 
making or creating the same, "or their agents thereunto lawfully 

the record only of leases for over the defendant© and entry upon the 

one year, a lease for five years, premis€s put an end to whatever 

though not recorded, is valid for estates the defendants (the lessees) 

one year. had acquired therein." It seems 

82» Schumacher v. Pabst Brew. Co., that the court must have regarded 

78 Minn. 50, 80 N. "W. 838. the agent as having authority in 

621 Durkee v. Carr, 38 Or. 189, 63 effect only to make a lease subject 
Pac. 117. to a special limitation terminating it 

622 Dieckman v. Weirich, 24 Ky. upon the owner's return, and that, 
Law Rep. 2340, 73 S. W. 1119. in so far as the lease undertook to 

62SAntoni v. Belknap, 102 Mass. omit such limitation, ilt was in- 

193. The authority given the agent valid. There is no statement of 

by the owner is stated to have been the grounds of the court's conclu- 

to "take charge of the land while sion. 

he was gone and make it pay the 624 Yellow Jacket Silver Min. Co. 
best way he could," and the court v. Stevenson, 5 Nev. 224. See San- 
says that "his return terminated ford v. Johnson, 24 Minn. 172. 
the agency; and his demand upon 625 See ante, §§ 14 b (2), 25 g 1. 



§34 



LEASE MADE BY AGENT. 



285 



authorized by writing," while the fourth section merely requires 
that the agreements therein referred to be signed by some person 
"lawfully authorized," thus dispensing with any necessity that 
the authorization be in writing«26 In this country, in the states 
in which the provisions of the first section of the English statute 
have been substantially re-enactedjSZ'? the requirement that the 
agent's authority shall be in writing has been retained.^^s Jq 
other states, likewise, it is sometimes so provided, but in some the 
language of the fourth section, requiring the agent to be "law- 
fully authorized," is adopted, and occasionally it is provided mere- 
ly that the instrument shall be signed by the lessor "or his at- 
torney, "^zs 



626 See Browne, Stat, of Frauds, § 
370 a.. 

627 See ante, note 344. • 

828 See Williams v. Mershon, 57 
N. J. Law, 242, 30 Atl. 619; Jen- 
nings V. McComb, 112 Pa. 518, 4 Atl. 
812. But in Bless v. Jenkins, 129 
Mo. 647, 31 S. W. 938, the specific 
requirement of the statute that the 
agent's authority shall be in writing 
seems to be ignored. Compare Leh- 
man V. Nolting, 56 Mo. App. 549; 
Shea V. Seelig, 89 Mo. App. 146. 

That the person purporting to acJt 
as agent puts the lessee in posses- 
sion does not validate the lease. 
Elliott v. Bankston (Ala.) 45 So. 173'. 

629 Of the statutes enumerated in 
note 345 ante, as providing that no 
estate for more than one year shall 
be created except by writing, those 
of California, Colorado, Idaho, Kan- 
sas, Michigan, Minnesota, Nebraska, 
Nevada, New York North Dakota, 
Ohio, Oregon, South Dakota, Texas, 
Utah and Wisconsin require the 
agent's authority to be in writing. 
In those of Maine, Massachusetts, 
New Hampshire and Vermont, it is 
provided that it shall be signed by 
the lessor "or his attorney" In 
North Carolina the agent is required 



to be "lawfully- authorized." In 
those of Delaware, District of Co- 
lumbia, Georgia, Indiana, Kentucky, 
Mississippi, Rhode Island and West 
Virginia, there is no reference to an 
agent or attorney. See Borderre v. 
Den, 106 Cal. 594, 39 Pac. 946; Qqu.- 
d ert V. Cohn, 118 N. Y. 309, 23 N. E. 
298, 7 L. R. A. 69, 16 Am. St. Rep. 
761; Long v. Poth, 16 Misc. 85, 37 
N. Y. Supp. 670; Chesebrough v. Pln- 
gree, 72 Mich. 438, 40 N. W. 747; 
Judd V. Arnold, 31 Minn. 430, 18 N. 
W. 151. In Toan v. Pline, 60 Mich. 
385, 27 N. W. 557, it is said that 
"while the statute of frauds makes 
leases for more than one year in- 
valid if the agent is not authorized 
in writing, yet, where the lessee has 
been put in possession, and has en- 
joyed the premises for a full year, 
the executed agreement is good for 
that period at least, and is not 
within the statute." The cases cited 
In support of this statement involve 
applications of the doctrine of part 
performance. 

Of the statutes referred to in note 
346, supra, as requiring an agree- 
ment or contract for leasing to be 
in writing, those of California, Mich- 
igan, Minnesota, Montana, North 



286 



CREATION OF THE RELATION. 



§34 



The fact that the instrument of lease executed by the agent is 
under seal does not necessitate that the authority be under seal, if 
the lease is valid without a seal,®^" but if a seal is necessary to the 
lease, the authority must be under seal, this being in accord with 
the general rule in regard to the authority of agents®*^ 

e. Ratification. "Wliile a lease made by one who has no 
authority to make it is ordinarily not binding on the person for 
whom it purports to be made,®^^ j^ m^y i^g ratified by such per- 
son, that is, he may render it valid as against him by his subse- 
quent assent.*^^ The fact that one to whom a lease has been 
made by one acting without authority is permitted by the owner - 
to enter on the land has been regarded as showing a ratification,*34 
and this conclusion is no doubt strengthened by the owner's re- 



Dakota, OMahoma, South Dakota 
and Utah require the authority of 
the agent to be in writing. Those 
ol Iowa, New York, Oregon and Wis- 
consin require merely that the 
agent be "lawfully authorized," 
while those of Colorado, Nebraska 
and Wyoming make no reference to 
a signature by an agent. 

Of the statutes enumerated in 
note 349, ante, providing that "no 
action shall be brought" on a lease 
if not in writing, those of Connec- 
ticut and Virginia merely provide 
that the writing shall be signed by 
^'Ihe party to be charged" or his 
agent, while those of Arkansas, 
F'iOrida, Illinois, Kentucky, RlioJe 
Island and Tennessee require such 
aj:ent to be "lawfully" or "properly 
aiithorized," and that of Arizona 
makes no reference to a signa'.uie 
Tjy an agent. See Johnson v. Som- 
ers, 20 Tenn. (1 Humph.) 268. 

(■■so Marshall v. Rugg, 6 Wyo. 270. 
a Pac. 700, 45 Pac. 486, 33 L. R. A. 
67S; Blefes v. Jenkins, 129 Mn. 647. 
3 S. W. 938; Lehman v. Nol+ing, .56 
Mo. App. 549; Mechem, Agency §§ 
■95, 141. 



«3iLobdell V. Mason, 71 Miss. 937; 
Huffcut, Agency (,2d Ed.) § 26. 

632 See Moore v. Rankin, 33 Misc. 
749, 67 N. Y, Supp. 179; Hodges v. 
Howard, 5 R. I. 149. 

6S3 So a lease made by an agent 
of a corporation may be ratified by 
the corporation. Swartzwelder v. 
U. S. Bank, 24 Ky. (1 J. J. Marsh) 
38; Brahn v. Jersey City Forge Co., 
38 N. J. Law, 74. See Clement v 
Young-McShea Amusement Co., 70 
N. J. Eq. 677, 67 Atl. 82. 

In Anderson v. Conner, 43 Misc. 
384, 87 N. Y. Supp. 449, it appears to 
be decided that the principal may 
ratify the lease though the agent in 
making it purported to be acting for 
himself and not for another. This 
does not accord with the general rule 
as to what acts are capable of rati- 
fication. See Huffcut, Agency (2d 
Ed.) 44; Hamlin v. Sears, 82 N. Y. 
327. 

634Hallberg v. Brosseau, 64 111. 
App. 520. Allowing the lessee to 
occupy and giving the lease in evi- 
dence was held to show ratification, 
in McClain v. Malone, 5 Ind. 237. 



§34 



LEASE MADE BY AGENT. 



287 



ceipt of rent.^*" The principal's acceptance of rent alone may 
show a ratification,®^* if this is with knowledge of the terms of the 
letting.837 

"When the agent 's authority is required to be in writing, a ratifi- 
cation of a lease made by an agent must be in writing, while if the 
original authority may be oral, the ratification may be oral."^^ 

d. Form and execution of lease. One undertaking to make a 
lease under seal as agent for another must, ordinarily, provided 
the seal is not superfluous, execute the lease in the name of his 
principal and not in his own name.®^'' It has haen decided, how- 
ever, that though the instrument named the agent as the party of 
the first part, it might, if signed by the principal as such party, be 
regarded as the act of the latter.^*" A lease not required to be un- 
der seal is properly executed in the same way, but is, it seems, val- 
id though executed in the name of the agent.®*^ 

If a lease appears to be the act of the lessor in his own behalf, 



6S5 Brahn v. Jersey City Forge Co., 
38 N. J. Law, 74. 

8se Kriz v. Peege, 119 Wis. 105, 95 
N. W. 108. 

637 Yellow Jacket Silver Min. Co. 
V. Stevenson, 5 Nev. 225; Galewski 
V. Appelbaum, 32 Misc. 203, 65 N. Y. 
Supp. 694. 

638 Bless V. Jenkins, 129 Mo. 647, 
31 S. W. 938; Judd v. Arnold, 31 
Minn. 430, 18 N. W. 151; Long v. 
Poth, 16 Misc. 85, 37 N. Y. Supp. 
670; McDowell v. Simpson, 3 Watts 
(Pa.) 129, 27 Am. Dec. 338; Dumn 
V. Rothermel, 112 Pa. 272, 3 Atl. 
800; Williams v. Mershon, 57 N. J. 
Law, 242, 30 Atl. 619. But see And- 
erson V. Conner, 43 Misc. 384, 87 N. 
Y. Supp. 449. 

If the lease is made without the 
necessary written authority, it has 
been held, a conveyance of the prem- 
ises which excepts the lease from 
the general warranty therein con- 
stitutes a valid ratification. Chris- 
topher V. National Brewing Co., 72 
Mo. App. 121. 

In Kriz v. Peege, 119 Wis. 105, 95 



N. W. 108, Involving an action for 
rent, while the statute required a 
lease to be signed by the maker 
or his agent authorized in writing, 
the ratification was oral merely. 
The court says that this "made a 
good contract for a lease, enforceable 
in equity as from the date thereof, 
and binding upon the lessee at law 
as regards the rent, so long as the 
enjoyment of the property actually 
continued." No explanation of this 
language is given. Perhaps it has 
reference to the equitable doctrine 
of part performance of a lease in- 
valid under the statute of frauds. 
Ante, § 25 g (5). 

639 Murray v. Armstrong, 11 Mo. 
209; Potter v. Bassett, 35 Mo. App. 
417; Harms v. McCormick, 132 111. 
104, 22 N. E. 511. See Huffcut, 
Agency (2d Ed.) § 127. 

640 Northwestern Distilling Co. v. 
Brant, 69 111. 658, 18 Am. Rep. 631; 
Douglass V. Branch Bank, 19 Ala. 
659. 

641 See 1 Clark & Skyles, Agency, p. 
672; Hu«cut, Agency (2d Ed.) 251. 



288 CREATION OF THE RELATION. § 35 

the lessee cannot ordinarily show that the lessor acted in making 
it as the agent of another,**^ since this would involve an assertion 
by the tenant of defects in the lessor's title.^** But an undisclosed 
principal may, if the instrument is not under seal, ordinarily sue 
upon the contractual stipulations entered into by the lessee, in 
accordance with the general rule applicable in favor of undis- 
closed principals.*^* 

§ 35. Lease made on Sunday. 

The fact that a lease was made on Sunday has been regarded as 
rendering the whole transaction invalid,^*^ and the fact that the 
lessee took possession of the land does not, it has been decided, ren- 
der him liable under his express contract to pay rent,®*^ nor jus- 
tify a reference to the lease in order to ascertain the terms of the 
holding.647 The lessee taking possession is, however, liable in use ' 
and occupation,*'** and he may become liable as for rent by his 
conduct in paying instalments of rent or otherwise.®*^ In one 
ease^^" it is somewhat ambiguously said that the lease, though in- 
valid, might be looked to as a circumstance, with others, to ac- 
count for the after conduct of the parties in relation to the posses- 
sion of the premises, and it was held, apparently, that the making 
of the invalid lease for a year was CAddence to show that the lessee 
was entitled to retain possession for that time. 

§ 36. Construction of the instrument. 

The courts have in particular cases had occasion, in construing 
the language of an instrument of lease, to apply certain general 
rules applicable in the construction of all written instruments.*'*^ 

042 Holt V. Martin, 51 Pa. 499; i!« vinz v. Beatty, 61 Wis. 645, 21 
Seyfert v. Bean, 83 Pa. 450; Kendall N. W. 787. 

V. Garland, 59 Mass. (5 Gush.) 74. "s stebbins v. Peck, 74 Mass. (8 

643 See post, § 78 j. Gray) 553; Mclntosb v. Lee, 57 

Iowa, 356, 10 N. W. 895. 

849 See Vinz v. Beatty, 61 Wis. 
645, 21 N. W. 787. 

«5o Rainey v. Gapps, 22 Ala. 288. 
"6 Mcintosh v. Lee, 57 Iowa, 356, ^si These general rules are sum- 
10' N. W. 895. But see Bostic Co. v. marized by the present writer in 
Eggleston (Ind. T.) 104 S. W. 566, 17 Am. & Eng. Enc. Law (2d Ed.) 
to the contrary. p. j. 



644 See post, § 56 b. 

645 See authorities cited in the 
notes next following. 



36 



CONSTBUCTION OF INSTRUMENT. 



289 



The object being to discover the intention of the parties,^^^ the 
language of the whole instrument will be considered with this in 
view,653 and inconsistent clauses may be ignored as being the re- 
sult of mistake.«5* The circumstances existing at the time of the 
making of the lease may be considered for the purpose of arriving 
at the meaning of the parties.^ss Likewise, the construction 
placed by the parties themselves on the language used may be con- 
sidered^Be in case of doubt as to its meaning.*^'^ 

It is said that, in case of doubt,*'* the lessee is to be favored 
rather than the lessor.*"® 

If the instrument contains both written and printed language, 
and any inconsistency exists between them, effect should be given 
to the former rather than to the latter.**© 

If two or more instruments can be regarded as part of one trans- 
action, they should be construed together.**^ ^ 



652 Raymond v. Hodgson, 55 111. 
App. 423; Anzolone v. Paskuz, 96 
App. Div. 188, 89 N. Y. Supp. 203; 
New York v. United States Trust Co., 
116 App. Div. 349, 101 N. Y. Supp. 
574. 

853 Union Water Power Co. v. Lew- 
iston, 95 Me. 171, 49 Atl. 878; Siegel, 
Cooper & Co. v. Colby, 176 111. 210, 
52 N. E. 917; Barrett v. Johnson, 2 
Ind. App. 25, 27 N. E. 933; Harlow 
V. Lake Superior Iron Co., 36 Mich. 
105. 

65* Siegel, Cooper & Co. v. Colby, 
176 111. 210, 52 N. E. 917. 

655 Waring v. Louisville & N. R. 
Co., 19 Fed. 863; Rubens v. Hill,. 115 
111. App. 565; Edwards v. McLean, 
122 N. Y. 302, 25 N. E. 483; In re 
Reading Iron Works, 150 Pa. 369, 24 
Atl. 617; Swigert v. Hartzel, 20 Pa. 
Super. Ct. 656. 

666 Herscher v. Brazier, 38 111. App. 
654; Wood v. Edison Elec. Illuminat- 
ing Co., 184 Mass. 523, 69 N. E. 364; 
Oglesby's Ex'r v. Hughes, 96 Va. 115, 
30 S. E. 439; Hard v. Brown, 18 Vt. 
87; Swigert v. Hartzell, 20 Pa. Super. 
Ct. 56. 



657 Diamond Plate-Glass Co. v. 
Tennell, 22 Ind. App. 132, 52 N. E. 
168. 

668 See Pere Marquette R. Co. v. 
Wabash R. Co., 141 Mich. 215, 12 Det. 
Leg. N. 466, 104 N. W. 650. 

659 Co. Litt. 42 a; Doe d. Webb v. 
Dixon, 9 Bast, 15; Dann v. Spurrier, 3 
Bos. & P. 399; Bryden v. Northrup, 68 
111. App. 233; Broadway & S. A. R. Co. 
V. Metzger, 27 Abb. N. C. 160, 15 N. 
y. Supp. 662; Windsor Hotel Co. v. 
Hawk, 49 How. Pr. (N. Y.) 257; 
Henderson v. Schuylkill Valley Clay 
Mfg. Co., 24 Pa. Super. Ct. 422. But 
see, as to leases signed by both lessor 
and lessee, Sheppard's Touchstone, 
86; 2 Blackst. Comm. 380; Beckwith 
v. Howard, 6 R. I. 1; Richardson v. 
Palmer, 38 N. H. 218; Palmer v. 
Evangelical Baptist Ben. & Mission- 
ary Soc, 166 Mass. 143, 43 N. E. 1028. 

660 Seaver v. Thompson, 189 111. 
158, 59 N. E. 553; Ball v. Wyeth, 90 
Mass. (8 Allen) 275; Wilcox v. Mon- 
tour Iron & Steel Co., 147 Pa. 540, 
23 Atl. 840. 

661 New England Loan & Trust Co. 
V. Workman, 71 Mo. App. 275. Com- 



L. and Ten. 19. 



290 CREATION OF THE RELATION. | 37 

§ 37. Necessity of entry — Interesse termini. 

In the ease of a lease for a term of years, even though the term 
is limited to commence immediately, the lessee is not regarded as a 
tenant until he enters upon the land, and he is said to have an 
int&resse iermini/'^- as is one named as lessee of a term to com- 
mence in futuro.^^^ 

A release to one who has not entered under his lease cannot, at 
common law, operate to enlarge his interest, for the reason that 
"a release which enures by way of enlarging an estate cannot 
work without a possession."^"* And it is said that the lessor 
' ' cannot grant away the reversion by the name of reversion, before 
entry. ' ' ^^^ On the other hand, the lessee may, before entry, grant 
his interest to another.®^® Although the lessor die before the les- 
see enters, his right of entry remains, and, if the lessee die before 
entry, his exeeSitors or administrators may enter.®®^ Until entry, 
the lessee cannot bring trespass, for the reason that the action of 
trespass is based on possession.^^s 

Though at common law a lessee who has not entered is not capa- 
ble of taking a release so as to enlarge his estate, still, by means 
of a lease taking effect as a bargain and sale under the statute of 
uses, possession sufBcient for this purpose may be given to the les- 
see without any actual entry by him."®' It is on this principal 
that is based the conveyance by "lease and release," at one time 
in constant use in England."'"' A lessee by bargain and sale under 

pare Anderson v. Winton, 136 Ala. Thorogood, Cro. Eliz. 127. So he 

422, 34 So. 962; Clark v. Gerke, 104 may make a sublease. Doe d. Pars- 

Md. 504, 65 Atl. 326. ley v. Day, 2 Q. B. 147; Chung Yow 

662 Co. Litt. 46 h; 2 Blackst. t. Hoh Chong, 11 Or. 220, 4 Pac. 326. 
Comm. 144; Caldwell v. Center, 30 serLitt. § 66; Co. Litt. 46 b. 
Cal. 539, 89 Am. Dec. 131; James v. ees Harrison v. Blackburn, 17 C. 
Kibler's Adm'r, 94 Va. 165, 26 S. E. B. (N. S.) 678; Ryan v. Clark, 14 
417 (semble). Q. B. 65; Wallis v. Hands [1893] 2 

663 See ante § 12, b (1). Ch. 75; Heilbron v. Heinlen, 72 Cal. 

664 Co. Lltt. 270 a. To the same 371, 14 Pac. 22. 

effect, see Litt. § 459; Sheppard's 669 Iseham v. Morrice, Cro. Car. 

Touchstone, 324. It will, however, 109; Barker v. Keat, 2 Mod. 249; Bac. 

extinguish the rent. Id. Abr., Leases (M.); 2 Preston, Con- 

665 Co. Litt. 46 b; Iseham v. Mor- veyancing, 217. 

rice, Cro. Car. 109. 6to See Tiffany, Real Prop. pp. 207, 

666 Co. Litt. 46 b; Wheeler v. 213. 



§ 37 NECESSITY OF ENTRY. 291 

the statute of uses has not, however, such possession that he can 
maintain trespass before entry.®^i 

It has been quite frequently stated that a lessee has no estate 
in the land until entry .«" On this theory it has been decided that 
the lessee has, before entry, no interest subject to execution,*''* 
and, apparently, that until he enters himself he cannot authorize 
an entry by another.*^* In England there is even a decision, 
ignored by the text books, that if the lessor makes another con- 
veyance before entry by the lessee, the grantee therein takes free 
from any claim on the part of the lessee.^'^s j^^ there it has also 
been obscurely suggested that, before the lessee 's entry, words of 
leasing must be regarded as creating merely a contract for a 
lease.*^* There are also decisions to the effect that before entry 
the lessee cannot bring ejectment,*^'' though there are, quite as 
many to the opposite effect.®'^* It has, in a modern English case, 
been decided that a lessee who has not entered has not a mere 
contractual right, but a right in rem, a proprietary right, justify- 
ing an action for damages against one who so injures the premises 
that he cannot take possession.*'^* 

The view that a lessee has no estate in the land merely because 

671 Lutwich V. Mitton, Cro. Jac. he has no right to the crops as 

604; Geary v. Bearcroft, Cart. 57, against the lessor retaining posses- 

66; Pollock & Wright, Possession, 56. sion. The opinion Is, however, so 

6-2 2 Blackst. Comm. 144 (citing obscure as to be almost meaningless. 

Co. Litt. 46, which does not sup- 675 Miller v. Green, 8 Bing, 92, 2 

port it); 1 Piatt, Leases, 22; Wil- Cromp. & J. 142. 

liams. Real Prop. (18th Ed.) 475; 676 See ante, § 25 d, at notes 389- 

2 Preston, Conveyancing, 145; Wil- 393. 

cox V. Bostick, 57 S. C. 151, 35 S. E. 677 Petroleum Co. v. Coal, Coke & 

496; Bunch v. Elizabeth City Lum- Mfg. Co., 89 Tenn. 381; Sennett v. 

ber Co., 134 N. C. 116, 46 S. E. 24. Bucher, 3 Pen. & W. (.Pa.) 392; Wil- 

673 Crane v. O'Connor, 4 Edw. Ch. cox v. Bostick, 57 S. C. 151, 35 S. 
(N. Y.) 409. E. 496. 

674 Austin V. Huntsville Coal & 678 Doe d. Parsley v. Day, 2 Q. B. 
Min. Co., 72 Mo. 535, 37 Am. Rep. 147; Cleveland v. Boice, 21 U. C. Q. B. 
446 (case of a lease of strata of 609; Trull v. Granger, 8 N. Y. (4 
coal). • Seld.) 115; Becar v. Flues, 64 N. Y. 

Crotty V. Collins, 13 111. 567, 518; Whitney v. Allaire, 1 N. Y. (1 

may be mentioned in this connec- Comst.) 305. See Adams, Ejectment, 

tion. It seems to say that if the 60; Berrington v. Casey, 78 111. 317. 

lessee undertakes to enter against 679 Gillard v. Cheshire Lines Com- 

the wish of the lessor, although his mittee, 32 Wkly. Rep. 943. (Brett, 

lease gives him the right to do so, M. R.. Bowen and Fry, L. J. J.) 



292 CREATION OF THE RELATION. § 37 

he has not entered is difficnlt to comprehend. His interest is refer- 
red to by Coke and others of the older writers as an " estate, ' '^^'^ 
and the statement occasionally found, to the effect that entry is 
not necessary to the vesting of a "term of years" in the lessee,'^! 
seems to be in effect that an estate for years vests before entry, 
"term of years" and "estate for years" being equivalent expres- 
sions. That one -who has not entered is not a tenant is readily 
comprehensible, but that one who has an immediate right of ex- 
clusive possession and control for a term of years should not have 
an estate for years, merely because he has not entered upon the 
land, seems to involve a subversion of the conception of an estate 
which has ordinarily prevailed since the abolition of the require- 
ment of livery of seisin. A statutory conveyance of an estate in 
fee simple without doubt vests an estate in the grantee before en- 
try, and it is difficult to see why a common-law conveyance of an 
estate for years should have any less effect. The interest of a 
lessee under a lease in praesenti before entry, it may be remarked, 
would seem on principle entirely different from that of one in 
favor of whom a term has been limited to commence in futuro 
only, and the fact that the same expression, interesse termini, is 
applied to the two classes of interests, does not seem a sufficient 
reason for regarding them as similar in character.^*^ 

680 Coke says (Oo. Lltt. 46 b) : 8S2, The difference is referred to in 
"A release to him is not good to Saffyn's Case, 5 Coke, 125, where, as 
increase his estate"; and in Saffyn's reported by Coke, the court said: 
Case, 5 Coke, 125, it was said that "if a man leases tenements for 
"if a man makes a lease for years, in years, by force of which the lessee 
this case before the lessee enters, he is seised, that is, possessed, and 
has an estate for years in the land, afterwards the lessor by his deed 
which he may grant." In Shep- grants the reversion to another for 
pard's Touchstone, 324, and Bac. life, it is necessary in such case that 
Abr., Leases (M), the statement is the tenant for term of years attorn; 
made, following Coke, that the les- by which it appears that before the 
see's "estate" cannot, before entry, lessee enters he has not actual pos- 
be enlarged by a release. session, nor (as it seems) the lessor 

681 Williams v. Bosanquet, 1 Brod. has not such a reversion that he can 
& B. 238; Ryan v. Clarke, 14 Q. B. grant it over by the name of re- 
65; Harrison v. Blackburn, 17 C. B. version, but yet such lessee has more 
(N. S.) 678. So Coke says: "The than he who has a future interest, 
interest of the term doth pass and for he may presently enter and take 
vest In the lessee before entry." Co. the profits." 

Utt. 51 b. 



§ 38 FRAUD. 293 

As regards the right of the lessee, before entry, to maintain 
ejectment for the premises, it would seem that the cases asserting 
that right are in accord with the modern rule that this action may 
be maintained by any person having a right to the possession. In 
former times, when it was necessary, to support ejectment, that a 
termor should have been actually ejected from the land,*^^ the 
action could evidently not be maintained by a lessee who had not 
entered, either by. himself or his sublessee; but after the introduc- 
tion of the fictions in ejectment, by which one entitled to land was 
enabled to maintain the action without any actual entry or ouster, 
a lessee, it would seem, was in as good a position for this purpose 
before as after entry, and the later abolition of the fictions could 
not well place him in a worse position in this regard. 

As regards the necessity of an entry in the case of a lease at 
will, as distinguished from a lease for a term of years, there are 
but few authorities. It seems clear that until entry he does not 
become actually a tenant,®** and the decisions distinguish be- 
tween the case of a lease at will and one for years to the extent of 
holding that one who has not entered under a lease at will is not 
liable for the rent reserved,®*^ while one who has not entered un- 
der a lease for years is so liable if he voluntarily refrained from 
entering.®*® Why this difference should exist is not explained. 
And it would seem that one to whom the owner has made a lease 
expressed to be at will, or to whom mere permission to take pos- 
session has been given, might, before entry, be regarded as having 
rights in the land analogous to those of a lessee for years who has 
not entered, and, if he has agreed to pay rent from the date of the 
letting, he should be liable accordingly. 

I 38. Fraud in creation of the relation, 
a. Fraud on part of lessee. A lease, like any other transfer, 

ess Adams, Eiect,ment, 9. from the day the tenant enters into 

684 In Den d. Pollock v. Kittrell, possession." 

4 N. C. 585 (Term 152), it was de- «85 Bellasls v. Burbrick, Holt, 

cided that a lessee at will who has 199, 1 Salk. 209, 1 Ld. Raym. 170; 

not entered cannot maintain eject- Anonymxjus, 1 Vent. 41; Jeakil v. 

ment, since "before entry the lease Linne, Het. 54; Anonymous, Dal. 44, 

is a bare contract." pl. 30; "Williams v. Bosanquet, 1 

In Hardy v. Winter, 38 Mo. 106, Brod. & B. 238, 257. 

it is said that "a tenancy at will, ese See post, § 182 b. 
without writing, commence only 



294 



CREATION OP THE RELATION. 



38 



may be set aside by the person making the transfer, that is the 
lessor, on the ground that it was procured by fraud or undue in- 
fluence.*87 The mere failure by the lessee to perform his agree- 
ments is, however, generally speaking at least, insufficient for this 
purpose.**® The right to assert the invalidity of the lease is not 
affected by the lessor's acceptance of rent thereunder before he 
learns of the fraud.**® But he cannot have the lease set aside as 
against an innocent purchaser of the leasehold for value.*^" 

b. Fraud on part of lessor. The question of what constitutes 
such fraud upon the part of the lessor as will entitle the lessee to 
relief from liability upon his stipulations in the lease, such as that 
for rent, is one to which it is practically impossible to give any 
satisfactory answer. It is but a phase of the general question, 
which may arise in the case of any contract, as to what constitutes 
fraud relieving a party from liability thereon, and as to this the 



6&7 See Gillespie v. Holland, 40 
Ark. 28, 40 Am. Rep. 1; Dickson v. 
Kempinsky, 96 Mo. 252, 9 S. W. 
618; Christie v. Blakeley (Pa.) 15 
Atl. 874; Rorer Iron Co. v. Trout, 
83 Va. 397, 2 S. B. 713, 5 Am. St. 
Rep. 285. Compare Feret v. Hill, 15 
C. B. 207, which decides that the 
fraud does not affect the validity of 
the lease at law. See Pollock, 
Contracts (7th Ed.) 371, note (k). 

So the landlord has been held en- 
titled to rescind the lease on ac- 
count of fraudulent misrepresenta- 
tions by the lessee as to his 
solvency. Martin v. Davis, 96 Iowa, 
718, 65 N. W. 1001. Compare Olden 
V. Sassman, 67 N. J. Eq. 239, 57 Atl. 
1075, Id., 68 N. J. Eq. 799, 64 Atl. 
1134. 

In Newcome v. Swing, 19 Ky. Law 
Rep. 821, 42 S. W. 105, it was decided 
that, in case the lease was procured 
by fraudulent representations on the 
part of the lessee that personal prop- 
erty mortgaged by him to secure the 
rent was unincumbered, the lessee 
would be enjoined from taking pos- 
session, though the lessee might have 



discovered the presence of the incum- 
brances by an examination of the 
records. 

688 Love V. Teter, 24 W. Va. 741. 
In Anderson v. Hammon, 19 Or. 
446, 24 Pac. 228, 20 Am. St. Rep. 832, 
where one had procured a lease of 
an orchard by covenanting to prop- 
erly prune and cultivate it, and 
failed to do so, it was held that 
equity would "cancel" the lease to 
prevent the waste and destruction. 
It does not appear whether the court 
■considered the lessee's conduct as 
fraudulent, or on exactly what prin- 
ciple relief was granted. Even con- 
ceding that the failure to perform 
such covenants constitute waste, 
which seems doubtful, cancellation 
of the lease is not an ordinary mode 
of preventing further waste. Post, 
§ 109 b. 

889 United Order of American 
Bricklayers & Stone Masons v. 
Fitzgerald, 59 111. App. 362. 

6i)i> Isom V. Rex Crude Oil Co., 147 
Cal. 659, 82 Pac. 317; Hubbard v. 
Cook, 82 C. C. A. 508, 153 Fed. 554. 



38 



FRAUD. 



295 



eases are in a state of very considerable confusion. It will here be 
attempted only to state the decisions actually involving the ques- 
tion of the existence of fraud relieving a lessee from liability. 

In a number of cases misstatements by the lessor as to the char- 
acter or quality of the premises have been regarded as constituting 
fraud on his part. Such a view has been taken of misstatements 
as to the number of acres on the premises which were suitable for 
cultivation,®^! the capacity of a mill on the premises,®®^ the suffi- 
ciency of the strength of the building for the lessee's purposes,®'^ 
the income producing value of the property,*®* the sufficiency of 
the heating appliances, ®®*'' the soundness of the plumbing, ®** the 
sufficiency of the water supply,*®® the dryness of the ground.*®'' 



631 Mitchell v. Zimmerman, 4 Tex. 
75, 51 Am. Dec. 717. 

692 Cage V. Phillips, 38 Ala. 382. 

693 Barr v. Kimball, 43 Neb. 766, 62 
N. W. 196; Myers v. Rosenback, 13 
Misc. 145, 34 N. Y. Supp. 63. See 
Hinsdale v. McCune, 135 Iowa, 329, 
113 N. W. 478. 

694 Irving V. Thomas, 18 Me. 418. 
694a Bauer v. Taylor, 4 Neb. tJnofC. 

710, 98 N. W. 29. 

6»5 Pursel v. Teller, 10 Colo. App. 
488, 51 Pac. 436. Where the owner 
had constructed a sewer for the 
premises with ordinary care, the 
fact that he stated to the intending 
lessee that there was an excellent 
sewer connected with the stores, 
which would mabe the premises 
clean, was held not to show fraud, 
it being merely an expression of 
opinion, and the sewer failing only 
in the case of an unusual storm. 
Wilkinson v. Clauson, 29 Minn. 91, 12 
N. W. 147. In Daly v. Wise, 132 N. 
Y. 306, 30 N. B. 837, statements as 
to the plumbing were held not to 
be fraudulent and so ground for re- 
scission. The opinion is rather ob- 
scure. And see post, at note 713, as 
to failure to mention sewer gas. 

696 Sisson V. Kaper, 105 Iowa, 599, 



75 N. W. 490; Merritt v. Dufur, 99 
Iowa, 211, 68 N. W. 553; Jamison v. 
Ellsworth, 115 Iowa, 90, 87 N. W. 
723. But in Stein v. Rice, 23 Misc. 
348, 51 N. Y. Supp. 320, it was held 
that the lessor's failure to mention 
that at times the water supply for 
the neighborhood was inadequate did 
not constitute fraud authorizing a 
rescission, though the supply failed! 
during the year of the lease to an 
unusual degree. And see, to the 
effect that false representations in 
this regard are no defence to a claim 
for rent, Bowen v. Hatch (Tex. Civ. 
App.) 34 S. W. 330. 

697 Baker v. Fawcett, 69 111. App. 
300. 

In Dennison v. Grove, 52 N. J. 
Law, 144, 19 Atl. 186, it was regarded 
as a question for the jury, under 
the circumstances, whether a mis- 
representation in this regard was an 
expression of opinion, merely, or a 
misstatement of fact justifying 
rescission. 

In Jones v. Hathaway, 77 Ind. 14, 
it was decided that a misstatement 
in this regard, with the result that 
the lessee's crop was spoilt, involved 
a "failure of consideration" consti- 
tuting a defense to a claim for rent. 



296 CREATION OP THE RELATION. | 38 

On the other hand, the courts have occasionally refused to give 
any effect to such statements, if made in regard to matters which 
were apparent on inspection.^^s it -w^as in one case regarded as a 
question for the jury, under the particular circumstances, whether 
a statement as to the character of the ground was merely an ex- 
pression of opinion or was a misstatement of fact authorizing 
rescission,«99 and in another it was left to the jury to say whether 
the lessee exercised reasonable care in relying on the lessor's 
statement.'' o" The fact that the lessor persisted in his statement 
after the lessee had told him that he would rely thereon, instead 
of examining the premises, appears to have been regarded as re- 
lieving the lessee from liability under the lease, when the mere 
false statement might not have had that effect.'"'^ 

As a general rule false representations, to constitute fraud, 
must relate to some existing fact, and the mere breach of a prom- 
ise to do something cannot be treated as a fraud.^''^ And so it has 
been decided that the breach of an agreement by the lessor to 
make improvements cannot be asserted as a fraud.''*'^ But a de- 
cision is to be found that a false statement that the lessor would 
lease the adjoining premises to the lessee was a defense to a claim 
for rent.''** Ordinarily, statements which amount to mere ex- 
pressions of opinion or expectation, as distinct from statements of 

The theory of fraud seems decidedly too Ladner v. Balsley, 103 Iowa, 

preferable to the introduction of this 674, 72 N. W. 787. 

much abused phrase, "failure of con- roi Jackson v. Odell, 14 Abb. N. C. 

sideration." (N. Y.) 42. 

698 Merritt v. Dufur, 99 Iowa, 211, 702 See Wilcox v. Palmer, 163 Pa. 
68 N. W. 553; Boyer v. Commercial 109, 29 Atl. 757. 

Bldg. Inv. Co., 110 Iowa, 491, 81 N. tos Lynch v. Sauer, 16 Misc. 1, 37 
W. 720; Oppenheimer v. Clunie, 142 N. Y. Supp. 666. 
Cal. 313, 75 Pac. 899 (dictum). In 704 Rand, McNally & Co. v. Wick- 
Lewis v. Clark, 86 Md. 327, 37 Atl. ham, 60 Mo. App. 44. 
1035, It is said that "the appellant In Hill v. Rudd, 99 Ky. 178, 35 S. 
(the lessee) could have verified the W. 270, it is decided that the lessee 
correctness of the representations cannot rescind on the ground that 
concerning the quality of the water, one of the lessors failed to buy groc- 
without serious Inconvenience to eries from the lessee as he had prom- 
himself, if he had thought proper to ised to do in order to Induce the 
do so, and having failed to exercise lessee to take the lease. The deci- 
thls reasonable precaution, he has sion rather appears to be based on 
now no just cause of complaint." the ground that one lessor could not, 

699 Dennison v. Grove, 52 N. J. by his conduct, affect the others. 
Law, 144, 19 Atl. 186, ante, note 697. 



§ 38 ' FRAUD. 297 

fact, cannot be asserted as fraud constituting a ground for re- 
liefjos _^d a misrepresentation as to the legal effect of the in- 
strument of lease is not ordinarily ground for relief J^^ 

A statement by the lessor that he had certain rights in adjoin- 
ing land which would pass with the premises leased, when in fact 
he had no such rights, and without them the premises were use- 
less for the lessee's purposes, was held to justify the lessee in 
abandoning the premises and refusing to pay rentJ"'' It has, 
however, been decided that a lessee of one person, who took a lease 
from another who falsely asserted title to the land, could not re- 
pudiate the later lease on account of such false assertion, it being 
said that his relation to his original lessor cast on him the duty 
of carefully examining the claimant's titlejo^ ^d the mere as- 
sertion of his legal right by a party to litigation concerning the 
land has been decided not to constitute fraud, however mistak- 
enJ09 A statement by an agent that all the premises leased were 
owned by one person, while in fact they were owned by two, has 
been regarded as a matter of which the lessee could not complain, 
if the lease was assented to by both ownersJi" In England it 
has been decided that if the lessor knows that he has no title to 
part of the land, and fails to inform the lessee, who has no means 
of knowing it, the lessee is entitled to be relieved from his liabil- 
ity for rentJ*^ Usually in this country the lessee has means of 
determining the state of the title. 

A false statement which has no part in inducing the making of 
the lease is obviously no ground for relief in favor of the lessee.^^^ 

705 Wilkinson v. Clauson, 29 Minn. tob Pepper v. Eowley, 73 111. 262. 
91, 12 N. W. 147; Coulson v. Whit- See Chambers v. Irish, 132 Iowa, 319, 
ing, 12 Daly (N. Y.) 408; Garrett v. io9 N. W. 787. 

Finch, 107 Va. 25, 57 S. B. 604, 14 tk, Merritt v. Dufur, 99 Iowa, 211, ' 

Am. & Eng. Enc. liaw, 34; 20 Cyclo- gg j^ -^ ggg 

pedia Law & Proc. 17. ,,, ^^^^ ^ ^est Mostyn Coal & 

706 Fry y. Day, 97 Ind 348 See 20 ^^^^ ^ ^ p ^.^ ^^^ .^^ ^^^ 
Am & Eng. Enc. Law, 56; 20 Cyclo- ^^^^ ^^^^^^ ^^ 
pedia Law & Proc. 19. , , . , . 

707 Morris T.Shakespeare, 20 Wkly. ^^^ Pleased, reject that part only of 
Notes Cas. (Pa.) 564, 12 Atl. 414. the land to which the lessor had no 
In Whitney v. Allaire, 1 N. Y. (1 title, keeping the remainder. 
Comst.) 305, there are expressions "2 See Bayles v. Clark, 115 App. 
to the same effect. Div. 33, 100 N. Y. Supp. 586, where, 

708 Dunbar v. Bonesteel, 4 111. (3 after a valid oral lease was made. 
Scam.) 32. the incorporation thereof in a writ- 



298 CREATION OF THE RELATION. § 3g 

Occasionally a mere failure on the part of the intending lessor 
to volunteer information affecting the desirability or value of the 
premises has been regarded as ground for rescission by the lessee. 
Thus, the failure to inform the lessee that premises leased by him 
for residence purposes had formerly been used for purposes of 
prostitution has been held to relieve the lessee from liability for 
rent,'^^^ and the same view was taken when the lessor failed to in- 
form the lessee of the presence of sewer gas.'^^* In another state 
it has been held that the landlord is responsible as for fraud if he 
fails to warn the lessee of a defect not open to ordinary observa- 
tion, while he is not so responsible if the defect is so open.'^is 

That the lessee was induced to surrender a previous lease which 
had been assigned to him and to take a second lease, by means of 
misrepresentations as to the rent reserved on the previous lease, 
has been regarded as ground for rescinding the second lease.'^i* 

A rule has been quite frequently enunciated that, in an action at 
law on a sealed contract, the defendant cannot assert that it was 
obtained by false representations, though it is otherwise as to 
fraud in the execution of the contract,'^!'' and this rule has in one 
jurisdiction been applied in an action for rent reserved by an in- 
strument of lease under seal.^^^ 

A lessee does not lose his right to set up the lessor's fraud by 
taking and retaining possession of the premises, provided he re- 
linquishes possession on discovering the fraud.'^® If, however, 
the lessee, after discovering the fraud, makes no attempt to rescind 
the lease,'^2o or continues in possession of the premises an unrea- 

ten instrument ■was obtained by false ''is Cate v. Blodgett, 70 N. H. 316, 

representations. 48 Atl. 281. 

713 Staples v. Anderson, 26 N. Y. Tie Powell v. Linde Co., 49 App. 

Super. Ct. (3 Rob.) 327; Rhinelan- Div. 286, 64 N. Y. Supp. 153. 

der V. Seaman, 13 Abb. N. C. (N. Y.) tit i Bigelow, Fraud, 53. 

455, note. See Conklin v. "White, 17 'is Johnson v. Wilson, 33 111. App. 

Abb. N. C. (N. Y.) 315; Carhart v. 639; McCoull v. Herzberg, 33 111. 

Ryder, 11 Daly (N. Y.) 101. App. 542; Little v. Dyer, 35 111. App. 

71* "Wallace v. Lent, 1 Daly (N. Y.) 85. 

481, 29 How. Pr. 289; Sequard v. 7i9 Milliken v. Thorndike, 103 

Corse, 9 N. Y. Wkly. Dig. 51. See Mass. 382; Irving v. Thomas, 18 Me. 

Daly V. "Wise, 132 N. Y. 306, 30 N. 418. 

E. 837, 16 L. R. A. 236; Jackson t. 72o Hall v. Ryder, 152 Mass. 528, 25 

Odell, 14 Abb. N. C. (N. Y.) 42. N. B. 970. He is justified in re- 

Contra, Blake v. Ranous, 25 111. App. maining on assurances that the de- 

486. fects will be remedied. Hinsdale v. 



§ 38 FRAUD. 299 

sonable time after knowing of the fraud,''^! he cannot disclaim 
liability for the rent. But though the fact that he retains posses- 
sion with knowledge of the fraud operates to deprive him of 
the right to rescind, it does not affect his right to damages on 
account of the fraud, either in an action therefor, or by way of 
counterclaim in an action for rent.''^^ And this he may do even 

though he has paid installments of rent with knowledge of the 
fraud.T23 

The measure of damages for fraud in misrepresenting the con- 
dition of the premises is the difference between the actual rental 
value and the rental value had the premises been as represented.''^* 
It has been decided that the lessee cannot recover, on account of 
misrepresentations as to the water supply, for resulting injury to 
his stock, or for the cost of improvements made by him to secure 
water.''25 

McCune, 135 Iowa, 682, 113 N. W. Lent, 1 Daly (N. Y.) 481, 29 How. 

478. Pr. 289. 

721 Oppenheimer V. Clunie, 142 Cal. 722 Whitney v. Allaire, 1 N. Y. (1 

313, 75 Pac. 899; Bell v. Baker, 43 Comst.) 305; Pryor v. Foster, 130 N. 

Minn. 86, 44 N. W. 676; Herrin v. Y. 171, 29 N. E. 123; Prince v. Jac- 

Libbey, 36 Me. 350; Morey t. Pierce, obs, 80 App. Div. 243, 80 N. Y. Supp. 

14 111. App. (14 Bradw.) 91; Resser 304; Herrin v. Libbey, 36 Me. 350; 

V. Corwin, 72 111. App. 625; Kiernan Barr v. Kimball, 43 Neb. 766, 62 N. 

V. Terry, 26 Or. 494, 38 Pac. 671; W. 196; Dennison v. Grove, 52 N. J. 

Barr v. New York, L.. E. & W. R. Co., Law, 144, 19 Atl. 186; Wolfe v. Ar- 

125 N. Y. 263, 26 N. E. 145; Pryor v. rott, 109 Pa. 473, 1 Atl. 333 (semble). 

Foster, 130 N. Y. 171, 28 N. B. 123; See Hall v Ryder, 152 Mass. 528, 25 

Rosenbaum v. Gunter, 3 E. D. Smith N. E. 97'0. Compare Bell v. Baker, 

(N. Y.) 203; McCarty v. Ely, 4 E. D. 43 Minn. 86, 44 N. W. 676. 

Smith (N. Y.) 375; Conklin v. 723 pryor v. Foster, 130 N. Y. 171, 

White, 17 Abb. N. C. (N. Y.) 315; 29 N. E. 123; Hoyt v. Dengler, 54 

Carhart v. Ryder, 11 Daly (N. Y.) Kan. 309, 38 Pac. 260; Cramer v. 

101; Lynch v. Sauer, 16 Misc. 1, 37 Carlisle Bank, 2 Grant Cas. (Pa.) 

N. Y. Supp. 666; Campau v. Lafferty, 267. See Irving v. Thomas, 18 Me. 

50 Mich. 114, 15 N. W. 40. 418. 

But merely remaining a few days 721 Pryor v. Foster, 130 N. Y. 171, 

after discovery of a fraudulent rep- 29 N. E. 123. The lessee is also en- 

resentation as to the condition of titled to the return of a deposit 

the' premises, under a promise by made to secure the rent. Prince v. 

the lessor to remedy the defects, does Jacobs, 80 App. Div. 243, 80 N. Y. 

not make him liable for the month's Supp. 304. 

rent. Myers v. Bosenback, 11 Misc. 725 Jamison v. Ellsworth, 115 Iowa, 

116, 31 N. Y. Supp. 993; Wallace v. 90, 87 N. W. 723. 



300 CREATION OF THE RELATION. j 39 

The averments in defendant's pleadings, in an action for rent, 
may be insufficient to authorize the admission of evidence of fraud 
on plaintiff's part. An averment that the lessor fraudulently 
concealed defects in the premises is insufficient, it has been de- 
cided, it being said that the lessee must aver the facts constituting 
the fraud, such as what did the lessor know, what did he do to 
conceal the defects, what was his intention, and how did he mis- 
lead the lessee.'^^e, 727 ji^j^ allegation that the landlord falsely rep- 
resented that the building was suitable has been regarded as insuf- 
ficient to admit evidence that he did so fraudulently.'''^^ There 
must be, it has been held, an averment that the lessor knew the 
falsity of his statements, and an averment "on information and 
belief" in this respect has been regarded as insufficient.^29 j^g^^ 
likewise, the lessee 's ignorance of the true state of the f acts,''^'' or 
that he was deceived,''^! must be averred. It has also been de- 
cided to be necessary to aver damage from the fraud.'' ^^ Evidence 
of fraud is obviously not admissible when there is no averment in 
respect thereto. ''^^ 

§ 39. Mistake in creation of the relation. 1 

The instrument of lease as prepared may, owing to mistake, 
differ from the actual agreement of the parties, in which case 
equity will ordinarily reform the lease to accord with their inten- 
tion. '^s^ So a lease has been reformed on account of error in the 
description,''^® the omission of an intended provision as to re- 

726, 727 Coulson V. Whiting; 12 Daly 732 Holton v. Noble, 83 Cal. 7, 23 

(N. Y.) 408, 14 Abb. N. C. 60. See Pac. 58; Simmons v. Kayser, 43 N. 

Fry V. Day, 97 Ind. 348; Bauer v. Y. Super. Ct. (11 Jones & S.) 131. 

Taylor, 4 Neb. TJnofC. 710, 96 S. W. 733 Blaclunan v. Kessler, 110 Iowa, ; 

26iS. 140, 81 N. W. 185. 

728 York V. Steward, 21 Mont. 515, 734 See Wald'e Pollock, Contracts 

55 Pac. 29, 43 L. R. A. 125. (Williston's Ed.) 636 et seq.; 20 Am. 

729 Haines v. Downey, 86 111. App. & Eng. Bnc. Law (2d Ed.) 82S et 

373. And see Bauer v. Taylor, 4 seq; 2 Tiffany, Real Prop. § 385. 

Neb. Unoff. 701, 96 N. "W. 268. 735 Nielander v. Chicago, M. & St. 

730 Schermerhom v. Gouge, 13 Abb. p. r. Co., 114 Iowa, 420, 87 N. W. 
Pr. (N. Y.) 315. 285. And see Le Comte v. Freshwa- 

731 Simmons v. Kayser, 43 N. Y. ter, 56 W. Va. 336, 49 S. B. 238. 
Super. Ct. (11 Jones & S.) 131. 



§ 40 ILLEGAL. PURPOSE. 301 

,pairs/3« and of a provision allowing the removal of fixturesJ^T 
1 In order to justify relief on this ground the mistake must be com- 
.mon to both parties, a "mutual mistake," as it is ordinarily ex- 
, pressedj'^s* and strong and clear evidence in this regard is neces- 
, saryJ^* 

A contract is regarded as invalid if made upon a mistaken as- 
sumption by both parties as to some matter of fact, in the absence 
. of which the contract would not have been made,''*" and this doc- 
, trine, or one analogous thereto, was applied to a transaction in- 
volving the leasing of a building which was mistakenly supposed 
to be capable of sustaining additional stories with a covenant on 
the part of the lessee to erect such stories, and the lease, meaning 
thereby both the conveyance of the leasehold interest and the cov- 
enants entered into in connection therewith, was canceled by the 
courtJ*^ 

If the lessee accepts the lease under the supposition that the 
instrument expresses the terms agreed on, and its failure so to do 
is intentional on the part of the lessor,''*^ or, it seems, if the lessor 
merely has reason to know that it fails to express the actual agree- 
ment,^*3 the lessee is entitled to relief. 

§ 40. Lease for illegal purpose. 

If the lease is made with the intention that the premises shall 

736 Thomas v. Conrad, 24 Ky. Law don, 38 N. Y. St. Rep. 455, 13 N. Y. 
Rep. 1630, 71 S. W. 903; Id., 25 Ky. Supp. 595; Id., 44 N. Y. St. Rep. 640, 
Law Rep. 169, 74 S. W. 1084; Wyman 18 N. Y. Supp. 109. 

v. Sperbeck, 66 Wis. 495, 2'9 I^. W: 740 gee Kerr, Fraud & Mistake (3d 
245. See Cage v. Patton, 41 Tex. Ed.) 472; Hammon, Contracts, p. 
Civ. App. 248, 14 Tex. Ct. Rep. 525,' 106; Wald's Pollock, Contracts, 582. 
91 S. W. 311. 741 Hoops V. Fitzgerald, 204 111. 

737 Brown v. Ward, 119 Iowa, 604, 325, 68 N. E. 430. 

93 N. W. 587. 742 Daly v. Simonson, 126 Iowa, 

733 Mortimer v. Shortall, 2 Dru. 716, 102 N. W. 780. See 20 Am. & 

& War. 363; Fallon v. Robins, 16 Ir. Bng. Enc. Law (2 Ed.) 823. 

Ch. 422; Grauel v. Soeller, 52 Hun, 743 paget v. Marshall, 28 Ch. Div. 

375, 5 N. Y. Supp. 254; Wald's Pol- 255; Garrard v. Frankel, 30 Beav. 

lock. Contracts (Williston's Ed.) 445. But, as to these cases, see 

639. May v. Piatt [1900] 1 Ch. 616; Kerr, 

739 Seitz Brew. Co. v. Ayres, 60 N. Fraud & Mistake (3d Ed.) 463. 

J. Eq. 190, 46 Atl. 635; Wood v. Gor- 



302 



CREATION OF THE RELATION. 



40 



be used for an illegal purpose/** such as that of prostitution,''^5 
gambling,'^''* or the illegal sale of liquor/*'' the lessor cannot re- 
cover rent for the premises. A like decision was rendered when 
the lease was of a sidewalk, which by municipal ordinance could 
not be occupied for private purposes/*^ when the lease was a 
mere device for carrying out a conspiracy to enhance the price of 
merchandise in violation of statute/*'' and when the lease was 
made partly to induce the lessee not to have the lessor's husband 
prosecuted for burglary .'^o'' 

Occasionally it has been held that the lessor 's knowledge of the 
lessee's intention to use the premises for an illegal purpose will. 



T4i Gaslight & Coke Co. v. Turner, 

5 Bing. N. C. 666, 6 Bing. N. C. 324 
(lease for boiling oil and tar, con- 
trary to statute) ; Simpson v. "Woods, 
105 Mass. 263 (unlicensed billiard 
room); Holmead v. Maddox, 2 
Cranch, C. C. 161, Fed. Cas No. 6, 629. 

745 Appleton V. Campbell, 2 Car. 

6 P. 347; Dougherty v. Seymour, 16 
Colo. 289, 26 Pac. 823; Berni v. 
Boyer, 90 Minn. 469, 97 N. W. 121; 
Kathman v. Walters, 22 La. Ann. 54; 
Ernst V. Crosby, 140 N. Y. 364, 35 
N. E. 603; Ashbrook v. Dale, 27 Mo. 
App. 649; Burton v. Dupree, 19 Tex. 
Civ. App. 275, 46 S. W. 272; Hun- 
stock V. Palmer, 4 Tex. Civ. App. 
459, 23 S. W. 294. See Ralston v. 
Boady, 20 Ga. 449. But that this is 
not a defense to an action of forcible 
detainer by the landlord, see Toby 
V. Schultz, 51 111. App. 487. 

746 Ryan v. Potwin, 62 111. App. 
134; McDonald v. Tree, 69 111. App. 
134; Heidenreich v. Raggio, 86 111. 
App. 521; Edelmuth v. McGarren, 4 
Daly (N. Y.) 467, 45 How. Pr. 191; 
Gibson v. Pearsall, 1 E. D. Smith 
(N. Y.) 90. 

747 Rice V. Enwright, 119 Mass. 
187; Mitchell v. Scott, 62 N. H. 596; 
Sherman v. Wilder, 106 Mass. 537; 
Gorman v. Keough, 22 R. I. 47, 46 
Atl. 37; Mound v. Barker, 71 Vt. 253, 



44 Atl. 346, 76 Am. St. Rep. 767. 
See Zink v. Grant, 25 Ohio St. 352; 
Goodall v. Gerke Brew. Co., 56 
Ohio St. 257, 46 N. B. 983, constru- 
ing the Ohio statute in this regard. 

There can be no recovery on a 
guaranty of the rent in such case. 
Riley v. Jordan, 122 Mass. 231. 

Under an averment that the plain- 
tiff knowingly leased the property to 
be used for the illegal sale of liquor, 
defendant cannot ask an instruction 
that the plaintiff cannot recover it 
he permitted such use after knowing 
of the illegal sales. Rice v. Bn- 
wright, 119 Mass. 187. 

The lease is obviously not invalid 
because at the time the lessee has 
not obtained a license, since he can- 
not ordinarily obtain this till he has 
obtained the lease. Kerley v. Mayer, 
10 Misc. 718, 31 N. Y. Supp. 818; 
Shedlinsky v. Budweiser Brew. Co., 
L7 App. Div. 470, 45 N. Y.'Supp. 174. 

748 Heineck v. Grosse, 99 111. App. 
441; Romano v. Bruck, 25 Misc. 406, 
54 N. Y. Supp. 935. These were per- 
haps more properly licenses than 
leases. 

749 American Strawboard Co. v. 
Peoria Strawboard Co., 65 111. App. 
502. 

750 Graham v. Hiesel, 73 Neb. 433, 
102 N. W. 1010. 



§40 



ILLEGAL PURPOSE. 



303 



not affect his right to recover rent, if he himself does not actually 
share or further that purposeJ^'i 

If the lessor is ignorant of the lessee's intention, he may no 
doubt recover rent,"* but it has been held that he cannot do so if 
he allows the tenancy to continue after learning of the illegal use 
of the premises, while having the legal right to bring it to an 
endjss In one state it has even been decided that one who pur- 
chases the interest of the lessor in ignorance that the premises 
were used for an illegal purpose by the lessee could not recover 
rent, if he might by investigation have ascertained the use made of 
the premisesJ^* The fact that a business may be carried on unlaw- 
fully and that it was so carried on in the particular ease does not 
affect the lessor, if he was unaware of the lesse 's intention to that 
effect.Tss 

In one case it was decided that if a lease was illegal as made 
for purposes of prostitution, the lessee entering thereunder and 



"1 Miller V. Maguire, 18 R. I. 770, 
30 Atl. 966; Allen v. Keilly, 18 R. I. 
197, 30 Atl. 965; Almy v. Greene, 13 
R. 1. 350; Taylor v. Levy (Md.) 24 
Atl. 60-8; Updike v. Campbell, 4 E. D. 
Smith (N. T.) 570. But see Gor- 
man V. Keough, 22 R. I. 47, 46 Atl. 
37. See, also, Ralston v. Boady, 20 
Ga. 449. 

In Frank v. McDonald, 86 111. App. 
336, it was decided that the fact that 
the lessee intended to use the prem- 
ises for an illegal purpose, and that 
the lessor knew that he "wanted" 
to do so, was no defense to the claim 
for rent. 

752 Commagere v. Brown, 27 La. 
Ann. 314; Gibson v. Pearsall, 1 B. D. 
Smith (N. Y.) 90; Codman v. Hall, 
91 Mass. (9 Allen) 335; Zink v. 
Grant, 25 Ohio St. 352. 

In Stanley v. Chamberlain, 39 N. 
J. Law, 565, it was held that the 
lessor was not charged with the 
knowledge of his agent that the 
premises were to be used for an 
illegal purpose. See, to the con- 



trary, Ashbrook v. Dale, 27 Mo. App. 
649; Ryan v. Potwin, 62 111. App. 134. 

753 Jennings v. Throgmortnn, Ryan 
& M. 251; Mitchell v. Scott, 62 N. H. 
596. See Kessler v. Pearson, 126 
Ga. 725, 55 S. E. 963; Codman v. 
Hall, 91 Mass. (9 Allen) 335. 

754 Ernst V. Crosby, 140 N. Y. 364, 
35 N. E. 603. Even though the 
lessee has assigned the lease, he may 
set up the illegality of the purpose 
for which it was made. Sherman v. 
Wilder, 106 Mass. 537. 

755 Whalen v. Leisy Brew. Co., 106 
Iowa, 548, 76 N. W. 842. 

In Schedlinsky v. Budweiser Brew. 
Co., 163 N. Y. 437, 57 N. E. 620, it 
was held that the fact that the prem- 
ises used for the sale of liquor were 
within a prohibited distance of a 
school house did not prevent recov- 
ery by the lessor, in view of the fact 
that a license might lawfully be 
obtained to carry on the business 
on such premises by transfer from 
other premises. 



304 CREATION OF THE REL,AT10N. § 40 

paying rent could not claim to hold as a tenant from month to 
month or otherwiseJ^^ This seems to involve the view that the 
permission to enter is nugatory, as being a permission granted for 
an illegal purpose, and that, consequently, so far as any right of 
possession as against the lessor is concerned, he is merely a tres- 
passer, as having entered without permission. This seems a rea- 
sonable view. 

Circumstantial evidence is admissible to show the lessor 's knowl- 
edge and intention that the premises shall be used for illegal or 
immoral purposes/^'' and evidence of their bad reputation in this 
regard,'^^® as well as evidence of a prior lease to the same tenant 
and his improper use of the premises thereunder, '^^^ has been re- 
garded as competent, as has evidence that the lessor had other 
houses in the vicinity which he himself used for such unlawful 
business.'^ •'o 

756Berni v. Boyer, 90 Minn. 469, 76opiath v. Kline, 18 App. Div, 

97 N. W. 121. 240, 45 N. Y. Supp. 951. It is there 

"V Ernst V. Crosby, 140 N. Y. 364, gaid that such evidence is admissible 

35 N. B. 603. upon ^^ question of his intent "to 

T58Demartini v. Anderson, 127 ^ considered only when the facts 

Cal. 33, 59 Pac. 207; Egan v. Gordon, ^. ^ . ... , ^ j. -^ 

^„, „„ -^-r -„r ^^„ pertinent in chief are found to have 
65 Minn. 505, 68 N. W. 103. 

'59 Piath v. Kline, 18 App. Div. ^^^° established by other evidence. 

240, 45 N. Y. Supp. 951. 



CHAPTER IV. 

THE RELATION OF TENANCY IN CONNECTION WITH OTHER 

RELATION. 
§ 41. General considerations. 

42. Trustee and cestui que trust. 

43. Veindor and vendee. 

a. Vendee let into possession. 

Id. Express stipulation for tenancy. 

c. Tenancy on vendee's default. 

d. Tenant becoming vendee. 

44. Grantor and grantee. 

45. Mortgagor and mortgagee. 

a. Mortgagor in possession as tenant. 

b. Mortgagee in possession as tenant. 

c. Attornment clause. 

d. Mortgage relation not exclusive of tenancy. 

46. Purchaser at execution sale and former owner of land. 

47. Purchaser at foreclosure sale and former owner of land. 

48. Master and servant. 

§ 41. General considerations. 

Not infrequently the relation of landlord and tenant exists be- 
tween persons who also occupy some other legal relation towards 
one another, and occasionally persons occupying such other rela- 
tion are asserted to occupy, by reason of such relation, the fur- 
ther relation of landlord and tenant. We will here consider the 
various relations which have been considered or asserted thus to 
exist concurrently with that of landlord and tenant. 

§ 42. Trustee and cestui que trust. 

It has been said that a cestui que trust who is given possession 
of the trust property by the trustee is at law a tenant at will mere- 
ly, this having reference to the right of the trustee to repossess 
himself of the property at pleasure, and to his right of recovery 



L. and Ten. 20. 



306 TENANCY ACCOMPANYING OTHER RELATION. § 43 

in ejectment without reference to any equitable rights in the ces- 
tui que trust. ^ Since the adoption of statutes in most jurisdic- 
tions, however, allowing equitable defenses at law, the position of 
the cestui que trust cannot be regarded as necessarily that of a 
tenant at will, since he may, in defence to the trustee 's action for 
possession, show any better right thereto which may exist in him- 
self, as that it was intended by the creator of the trust that he 
should have the possession. 

A trustee in possession is evidently not the tenant of the cestui 
que trust, since he does not hold under the latter.^ 

§ 43. Vendor and vendee. 

a. Vendee let into possession. The question whether one 
who, having a contract for the sale to him of certain land, obtains 
possession thereof pending the making of a conveyance to him, 
is a tenant of his vendor, is a subject on which there has been 
much divergence of opinion. As elsewhere stated,^ by a number 
of decisions, a vendee so entering into possession is, if the sale fails 
of consummation otherwise than through the fault of the vendor, 
regarded as liable in an action for the value of his use and occupa- 
tion. These decisions necessarily involve the view that the rela- 
tion of landlord and tenant exists,* and it has been quite frequent- 
ly asserted that a vendee in possession is a tenant at will of the 
vendor.5 But apart from the decisions imposing liability on the 

1 Doe d.Nichollv. McKaeg, lOBarn. Howard v. Merrlam, 59 Mass. (5 
& C. 721; Perry v. Shipway, 1 GifC. 1. Gush.) 563; Hall v. Wallace, 88 Cal. 
See Lewin, TruSits (llth Ed.) 851. 434, 26 Pac. 3G0' (semble) ; Foley v. 
So it has been said that the posses- Wyeth, 84 Mass. (2 Allen) 131, 79 
sion of the cestui que trust is not Am. Dec. 771; Dunham v. Townsepd, 
adverse to the trustee, since he is 110 Mass. 440; Rawson v. Babcock, 
tenant at will of the latter. Marr 40 Mich. 330'; Hogsett v. Ellis, 17 
V. Gilliam, 41 Tenn. (1 Cold.) 488. Mich. 351; Den d. Love v. Edmon- 
And see Garrard v. Tuck, 8 C. B. ston, 23 N. C. (1 Ired. Law) 152; 
231. Jones v. Jones, 2 Rich. Law (S. C.) 

2 See Hardin v. Pulley, 79 Ala. 381. 542 ; Richardson v. Thornton, 52 N. 

3 See post, § 304 b. C. (7 Jones Law) 458; Uhl v. Pence, 

4 See post, § 304 b. 11 Neb. 316, 9 N. "W. 41; Woodbury 

5 Patterson v. Stoddard, 47 Me. 355, v. Woodbury, 47 N. H. 11; Harria_v. 
74 Am. Dec. 490; Doe d. Hiatt v. Frink,_49 _N.JY_24, 10 Am. Rep. 318 
Miller, 5 Car. & P. 595; Doe d. Coun- (dictum); Jackson v. Miller, 7 Cow. 
sel V. Caperton, 9 Car. & P. 112; (N. Y.) 747; Jones v. Temple, 87 Va. 



§43 



VENDOR AND VENDEE. 



307 



vendee for use and occupation, the .view that he is the vendor 's 
tenant has been but seldom actually applied. It has, however, 
been applied in favor of the vendee when sued in ejectment by the 
vendor, it being decided that the action will not lie against him 
unless there has been a previous demand of possession," in accord- 



210, 12 S. E. 404, 24 Am. St. Rep. 649. 
In Lyon v. Cunningham, 136 Mass. 
532, Field, C. J., after referring to 
the cases in that state in which one 
in possession under a contract of 
purchase is termed a tenant at will, 
says: "That neither the designa- 
tion of licensee or tenant at will 
expresses all the rights and obli- 
gations of such an occupant (under 
a contract for" a deed) is manifest," 
and then quotes from Dakin v. Allen, 
62 Mass. (8 Gush.) 33, as follows: 
"But it is sometimes said that one 
who is in thus under a contract for 
a sale is tenant at will to the owner. 
In a certain sense he is a tenant at 
will, as a mortgagor is tenant at 
will to the mortgagee, because he 
may enter upon him and eject him, 
if he can do it peaceably, or main- 
tain a real action on his title and 
thus gain the possession." 

In Freeman v. Headley, 33 N. J. 
Law, 523, it was decided that a pur- 
chaser in possession was a tenant at 
will for the purpose of sustaining 
against him "an action on the case 
in the nature of waste for destruc- 
tion committed while in such pos- 
session." It may be remarked that 
at common law the proper form of 
action against a tenant at will for 
acts of destruction was trespass and 
not case, and that his liability for 
such destruction was not as hav- 
ing committed waste, but as having 
committed a trespass. Post, § 109 b 
(1), note 759. 

6 Right V. Beard, 13 East, 210; 
Doe d. Newby v. Jackson, 1 Barn. & 



C. 448; Lewer v. McCulloch, 10 
Nova Scotia, 315; Doe d. Carson v. 
Baker, 15 N. C. (4 Dev. Law) 220, 
25 Am. Dec. 706; Williamson v. Pax- 
ton, 18 Grat. (Va.) 475, 505; Pettit 
V. Cowherd, 83 Va. 20, 1 S. E. 392. 
In none of these cases was the ven- 
dee in default under his contract, 
but there is no intimation that a 
different view would be taken if the 
vendee were in default, unless this 
effect can be given to the occasional 
remark that no demand is necessary 
if the vendee has done some wrong- 
ful act which will determine his 
possession. 

In Den v. Westbrook, 15 N. J. 
Law (3 J. S. Green) 371, 29 Am. 
Dec. 692, and Harle v. McCoy, 30 Ky. 
(7 J. J. Marsh.) 318, 23 Am. Dec. 
407, it was held that a previous de- 
mand of possession was necessary, 
though at the same time it was 
stated that no relation of tenancy 
existed. In the first case the vendee 
was in default, and in the second 
he was not in default. In Prentice 
V. Wilson, 14 111. 91, it is said that a 
previous demand is not necessary if 
the ^vendee is in default, though 
otherwise it is necessary; and in 
Baker v. Gittings, 16 Ohio, 485; 
Jackson v. Miller, 7 Cow. (N. Y.) 
747; McHan v. Stansell, 39 Ga. 197, 
and Chilton v. Niblett, 22 Tenn. (3 
Humph.) 404, it was apparently de- 
cided that no demand was necessary. 
In these cases, however, the defend- 
ant was in default. In Glascock v. 
Robards, 14 Mo. 350, 55 Am. Deo. 
108, a demand was apparently re- 



308 



TENANCY ACCOMPANYING OTHER RELATION. 



§43 



ance with the rule that such demand is a prerequisite to the main- 
tenance of ejectment against a tenant at will.'' 

While, as above stated, it has been asserted not infrequently 
that the vendee is the vendor's tenant, there are numerous cases 
to an opposite effect. Decisions that the vendee is not liable to 
the vendor in use and occupation are sometimes in terms based 
upon the theory that he is not a tenant,* though he might be a ten- 
ant and still not be so liable.^ That he is not a tenant has also 
been asserted in other connections.^" 

It is sometimes said that a vendee is a licensee rather than a ten- 
ant.ii That he is a licensee and not a tenant when he is given 
rights of entry or occupation merely for certain purposes pending 



garded as unnecftssary as against a 
purchaser of the vendee's interest, 
though there was no default. In 
some of these decisions the question 
of demand as a prerequisite to eject- 
ment and that of notice as neces- 
sary to terminate a tenancy at will 
seem to he somewhat confused. 

In several cases it is decided that 
no demand is necessary when the 
vendee is in default (Gregg v. Von 
Phul, 68 U. S. [1 Wall.] 274; Pren- 
tice V. Wilson, 14 111. 91; Dean v. 
Comstock, 32 111. 173; Hotaling v. 
Hotaling, 47 Barb. [N. Y.] 163), 
while in others previous demand or 
notice has been decided to be neces- 
sary even in such case (Guess v. 
McCauley, 61 N. C. 514; Twyman v. 
Hawley, 24 Grat. [Va.] 512, 18 Am. 
Rep. 661). 

7 See ante, § 13 b, note 403. • 

8 Carpenter v. U. S., 84 U. S. (17 
Wall.) 489; Smith v. Stewart, 6 
Johns. (N. Y.) 46, 5 Am. Dec. 186; 
Thompson v. Bower, 60 Barb. (N. 
Y.) 463; Newby v. Vestal, 6 Ind. 412; 
Fall V. Hazelrigg, 45 Ind. 576, 15 Am. 
Rep. 278; Mariner v. Burton, 4 Har. 
(Del.) 69; Tucker v. Adams, 52 
Ala'. 254; Little v. Pearson, 24 Mass. 
(7 Pick.) 301, 19 Am. Dec. 289; Hop- 



kins V. Ratliff, 115 Ind. 213, 17 N. E. 
288; CofCman v. Huck, 19 Mo. 435; 
Stacy V. Vermont Cent. R. Co., 32 
Vt. 551; Brown v. Ranc^olph, 26 Tex. 
Civ. App. 66, 62 S. W. 981. 

That is, the circumstances may 
show an understanding that he was 
not to pay for his use and occupa- 
tion. See post, §§ 304 b, 315. 

lOMoen v. Lillestal, 5 N. D. 327, 
65 N. W. 694; Richmond & Lexing- 
ton Turnpike Road Co. v. Rogers, 70 
Ky. (7 Bush.) 534; Barnes v. Shin- 
holster, 14 Ga. 131; Harle v. McCoy, 
30 Ky. (7 J. J. Marsh.) 318, 23 Am. 
Dec. 407; Stauffer v. Eaton, 13 Ohio, 
322; Klopfer v. Keller, 1 Colo. 410; 
Willis V. Wozencraft, 22 Cal. 607; 
McNair v. Schwartz, 16 111. 24; Hill 
V. Hill, 43 Pa. 528 (semble) ; Starkey 
V. Starkey, 136 Ind. 349, 36 N. B. 
287; Puterbaugh v. Puterbaugh, 131 
Ind. 288, 30 N. E. 519, 15 L. R. A. 
341; Bemis v. Allen, 119 Iowa, 160, 
93 N. W. 50; Cole v. Gill, 14 Iowa, 
527; Johnson v. Pollock, 58 111. 181. 

11 Dolittle V. Eddy, 7 Barb.XNTT.) 
74; Stone v. Sprague, 20 Barb. (N. 
Y.) 509;Druse v. Wheeler, 22 Mich. 
439, 26 Mich. 189; Gault v. Stormont, 
51 Mich. 636, 17 N. W. 214; Burnett 
V. Caldwell. 76 U. S. (9 Wall.) 290. 



§ 43 VENDOR AND VENDEE. 309 

the consummation of the sale is no doubt true,i2 but when he is 
put in possession as a tenant might be, without any reservation of 
control in the vendor or any intention that his occupation is to be 
limited in character and purpose, it is difficult, if not impossible, 
to regard him as a licensee, and it can be done only on the theory 
that the existing relation of vendor and vendee renders what 
would otherwise be a demise effective merely as a license. The de- 
cisions that he is liable in use and occupation are necessarily incon- 
sistent with the view that he is a licensee and not a tenant. 

Even in jurisdictions in which it has been judicially asserted 
that the vendee in possession is the vendor's tenant, the courts '\ 
have refused to regard him as a tenant for all purposes. He is 
not ordinarily so regarded for the purpose of enabling the vendor 
to maintain summary proceedings against him for possession,!* 
and there are a number of decisions to the effect that the statutes 
requiring a notice of a certain length of time in order to terminate 
a tenancy at will are not to be applied so as to render such a notice 
necessary before the vendor can oust a vendee who is in default.^* 

12 See Henry v. Perry, 110 Ga. 630, 1008. In Henry v. Perry, 110 Ga. 

36 S. E. 87. 630, 36 S. B. 87, it is held that one 

isMaxham v. Stewart, 133 Wis. having an option of purchase, who 

525, 113 N. W. 972; Dakin v. Allen, obtains a license to enter to pros- 

62 Mass. (8 Gush.) 33; Kiernan v. pect for minerals on the property, 

Linnehan, 151 Mass. 543, 24 N. E. cannot he ousted by dispossessory 

907; Dunham v. Townsend, 110 proceedings as tenant if he retains 

Mass. 440; Hay's Heirs v. Connelly, possession after hiS option has ex- 

8 Ky. (1 A. K. Marsh.) 393; Mc- Pired. 

Combs V. Wallace, 66 N. C. 481; Peo- In Illinois the statute (Hurd's 

pie V. Bigelow, 11 How. Pr. (N. Y.) Rev. St. c. 57, § 2 [5] ) gives in ex- 

83; Johnson v. Hauser, 82 N. C. 375; press terms to the vendor the right 

Brown r. Persons, 48 Ga. GO; Grif- to bring an action of forcible entry 

fith V. Collins, 116 Ga. 420, 42 S. B. and detainer against a vendee in de- 

743; Klopfer v. Keller, 1 Colo. 410; fault. See Jackson v. Warren, 32 

Bemis v. Allen, 119 Iowa, 160, 93 N. 111. 331; Monsen v. Stevens, 56 111. 

W. 50; Mason v. Delancy, 44 Ark. 335; Haskins v. Haskins, 67 Ill.'446. 

444; Chicago, B. & Q. R. Co. V. Skupa, So in Michigan (Comp. Laws 1897, 

16 Neb. 341, 20 N. W. 393; Ellsworth § H, 164). See Vos v. Dykema, 26 

V. McDowell, 44 Neb. 707, 62 N. W. Mich. 399. 

1082. Contra, Hall v. Wallace, 88 " Den v. Westbrook, 15 N. J. Law 

Cal. 434, 26 Pac. 360; McKissick v. (3 J. S. Green) 371, 29 Am, Dec. 692; 

Bullington, 37 Miss. 535; Sullivan v. Jackson v. Kingsley, 17 Johns (N. 

Ivey, 34Tenn. (2 Sneed.) 487; Knight Y.) 747; Powers v. Ingraham, 3 

v. Hartman, 81 Mich. 462, 45 N. W. Barb. (N. Y.) 576; Chilton v. Nib- 



310 TENANCY ACCOMPANYING OTHER RELATION. § 43 

In North Carolina it has been decided that the vendee in posses- 
sion is not a tenant within the statute of that state vesting the title 
to the tenant's crop in the landlord "where lands shall be rented 
or leased by agreement, written or oral, for agricultural pur- 
poses, "i^ 
^ The fact that the contract of sale is oral and is therefore unen- 
forcible under the statute of frauds has been decided not to make 
the relation of the parties that of landlord and tenant, the contract 
being regarded as admissible to show the intention with which the 
vendee was let into possession and to preclude any inference of a 
tenancy.is And in other cases the fact that the contract of sale 
is inyalid under that statute has been apparently ignored in con- 
nection with the question whether the vendee is a tenant of the 
v'endor.i'^ Occasionally, however, it has been decided that in view 
of the invalidity of the contract, it cannot be considered for the 
purpose of showing that the permissive occupation is other than 
that of a tenant.^* 

Ja spite of the numerous decisions above referred to, adverse to 
the view that a purchaser of land who has exclusive possession by 
the vendor's permission is a tenant of the latter, it is somewhat dif- 
ficult to see how he can have such possession otherwise than as a 
tenant. No right of possession exists in a vendee, either at law 

lett, 22 Tenn. (3 Humph.) 404; Ven- terson v. Stoddard, 47 Me. 355, 47 

able v. McDonald, 34 Ky. (4 Dana) Am. Dec. 49'0; Lapham v. Norton, 

337. But in Rawson v. Babcock, 40 71 Me. 83 ; Gould v. Thompson, 45 

Mich. 330, and Williams t. Hodges, ^^^ (4 j^jg^g ) 224; Howard v. Mer- 

41 Mich. 695, 3 N. W. 189, it was ^.^^_ 53 ^^^^ (5 Cush.) 563; Kay 
held that where the entry by the 



X 



V. Curd, 45 Ky. (6 B. Hon.) 100; 
Dwlght V. Cutler, 3 Mich. 566, 64 



vendee was not under the express 

provisions of the contract of sale, 

but was under a permission separate- A""- ^ec. 105; Chilton v. Niblett, 22 

ly given, the vendee was tenant at Tenn. (3 Humph.) 404; Reddick v. 

will, and as such entitled to three Hutchinson, 94 Ga. 675, 21 S. B. 712. 

months' notice. i* Harris v. Frink, 49 N. Y. 24, 

15 Taylor v. Taylor, 112 N. C. 27, 10 Am. Rep. 318; Hall v. Wallace, 88 

16 S. E. 924. Cal. 434, 26 Pac. 360. And see Vick 

i« Mason v. Delancy, 44 Ark. 444; v. Ayres, 56 Miss. 670. 

Barnes v. Shinholster, 14 Ga. 131; In Rogers v. Hill, 3 Ind. T. 562, 

Carpenter v. U. S., 84 IT. S. (17 64 S. W. 536, it was held that one 

Wall.) 489. who went Into possession under a 

" See Yater v. Mullen, 23 Ind. 562; void contract of sale of Indian land 

Hogsett V. Ellis, 17 Mich. 351; Pat- was a tenant at will. 



§43 ' VENDOR AND VENDEE. 32X 

or in equity, by reason of the contract of sale alone, at least until 
the consideration has been wholly paid,i9 and such right can be 
based, in the particular case, only upon permission given by the 
vendor. Such a possession by permission of the legal owner of 
the land would ordinarily involve the relation of landlord and ten- 
ant, and that the parties are at the time imder contractual obliga- 
tions as to the future conveyance of the land and payment therefor 
should not afEect the existence of the relation. It is quite fre- 
quently stated that one so situated is in possession "not as tenant, 
but as purchaser," but this seems to assume that, merely as ven- 
dee (purchaser), one has a right of possession, which is not the 
case. One having merely a contract for the conveyance of the 
legal title, like any other person, can obtain the right of possession 
for a limited period only by a demise, either in express terms or 
by inference from the language or acts of the vendor. Such grant 
of the right of possession may be made at the same time as the 
contract of sale, or at another time, and in the first case it may be 
incorporated in the instrument which evidences that contract. It 
can properly, however, in either case, it is conceived, be regarded 
only as a lease creating a tenancy between the vendor and pur- 
chaser. It would be generally conceded, presumably ,2" that if the 
vendor, in the instrument evidencing the sale, or in a separate in- 
strument, states that he does thereby "lease" the premises to the 
vendee until the time for the making of the conveyance, the latter, 
having entered by reason of such clause, should be regarded as the 
tenant of the landlord. But there is, as before stated,2i no dis- 
tinction in principle between such a case and that in which the 
vendor merely gives oral permission to the vendee to take posses- 
sion, or indicates such permission by acts instead of words. In 
either case there is a lease, by reason of which alone the vendee has 
a right of exclusive possession. And so there is a lease, that is, a 
grant of a right of possession, when the vendor in terms grants 
such right, or such grant can be inferred from the language of 
the contract considered as a whole. 

"When the vendee in possession is regarded as a tenant, it is ordi- 
narily stated that he is a tenant at will.22 By several eases, how- 

19 See cases cited 29 Am. & Eng. 21 See ante, § 17. 

Enc. Law (2nd Ed.) 704. 22 See cases cited ante, note 5. 

20 See cases cited post, notes 28-32. 



312 TENANCY ACCOMPANYING OTHER RELATION. § 43 

ever, the vendee who is thus permitted to enter is regarded as 
entitled to retain possession until he makes default in the perform- 
ance of his contract,^^ and ordinarily, it seems, the grant of per- 
mission to take possession would be with the intention that the 
right to possession should continue in the vendee until a coaivey- 
ance is made to him, or until there is a default on his part, wheth- 
er this permission is expressed in the instrument which evidences 
the contract of sale, in a separate instrument, by oral statement, 
or by acts rather than by words. The question whether the ven- 
dor could treat the vendee as a mere tenant at will would thus 
depend, it seems, in many cases, upon the construction of the writ- 
ten instrument, or upon the evidence bearing upon the fact of per- 
mission. In some cases, it is true, even though the intention to 
give the vendee the right of possession until the making of the 
conveyance is apparent, the vendee in possession would be merely 
a tenant at will, because the intention is not expressed in accord- 
ance with law, as when the permission is merely oral and yet the 
conveyance is not to be made until after the period for which an 
oral lease is valid. This would constitute a case of an entry under 
a lease invalid under the statute of frauds, the lessee thereby be- 
coming in the first place a tenant at will. 

If there is an intention that the vendee shall remain in posses- 
sion until the time for the making of the conveyance, or until de- 
fault on his part, and this intention is validly expressed, the ven- 
dee cannot, it is evident, be regarded as merely a tenant at will, 
but he is rather, it seems, a tenant for a term to endure until the ' 
date fixed for the conveyance, subject to a special limitation that 
the term shall cease upon his default.^* 

23 Do-wner v. Richardson, 9 Vt. plaintiff if he should pay a certain 
377; Whittier v. Stege, 61 Cal. 238; note and interest, "and in the mean- 
Field's Heirs v. McGee's Heirs, 28 time to allow the plaintiff, his heirg 
Ky. (5 J. J. Marsh.) 526; Baldwin v. and assigns, the peaceable and quiet 
Pool, 74 111. 97 isemble). See possession," the plaintiff was not a 
Schoolfleld v. Rhodes, 27 C. C. A. tenant at will, hut the condition of 
95, 82 Fed. 153. the bond was a demise so long as 

24 See Fitch v. Windram, 184 Mass. the plaintiff should pay the interest 
68, 67 N. E. 965, apparently to this and should not fail to pay the prin- 
effect. So in White v. Livingston, 64 ciple on demand. In Doe d. Cliff v. 
Mass. (10 Cush.) 259, it was decided Connaway, 2 New Br. (Bert.) 382, 
that, where plaintiff entered under a it was decided that a purchaser let 
bond to convey the premises to the into possession to hold until default 



§43 



VENDOR AND VENDEE. 



313 



There have been suggestions to the effect that a vendee in pos- 
session may be a tenant at sufferance.^s But i£ he is holding by 
possession he cannot, according to the common-law view of such a 
tenant,26 be a tenant at sufferance, and if his entry is without per- 
mission he is, it is conceived, a trespasser. If, however, being 
given a right of possession until default or for a definite time, he 
thereafter holds over without permission, he is properly described 
as a tenant at sufferanee.^^ If his holding, even after default, is 
by permission, then he is at least a tenant at will and is not a ten- 
ant at sufferance. 

b. Express stipulation for tenancy. There are a considerable 
number of cases recognizing the possibility of the creation of the 
relation of tenancy between the vendor and the vendee by an ex- 
press stipulation to that effect. Such a stipulation may be con- 
temporaneous with the contract of sale, whether contained in the 
same instrument or not,^® or it may be made subsequently to such 



in the purchase price was tenant 
for years until the time for payment 
of the price. 

25 See Knight v. Hartman, 81 Mich. 
462, 45 N. W. 1008. In Smith v. 
Singleton, 71 Ga. 68, it was decided 
that one who entered by reason of 
a contract of sale made by an agent 
of the owner who had charge of the 
land, and authority "perhaps to 
rent," but not to make such a con- 
tract, was a tenant at sufferance 
and liable to the statutory process 
applicable to tenants holding over. 
This is somewhat difficult to un- 
derstand. If the agent had author- 
ity to give him possession, he would 
seem to be a tenant at will at least, 
while if the agent had no such au- 
thority, the purchaser could not 
well be other than a trespasser, un- 
less perhaps he could be regarded as 
a mere licensee. The court evident- 
ly has a conception of a tenant at 
sufferance different from that which 
obtained at common law. See, also. 
Brown v. Persons, 48 Ua. 60. 



26 See ante, § 15 a. 

27 Moore v. Smith, 56 N. J. Law, 
446, 29 Atl. 159. 

In Sanders v. Richardson, 31 Mass. 
(14 Pick.) 522, it was decided that, 
where a bond for title provided that 
the obligee was to have and keep 
possession and was to pay a certain 
sum in one year, whereupon he was 
to receive a conveyance, the obligee, 
retaining possession after the year 
without having paid such sum, was 
a tenant at sufferance. 

28 Yeoman v. Ellison, 36 Law J. C. 
P. 326; Saunders v. Musgrave, 6 
Barn. & C. 524. So where the vendor 
orally agreed that the vendee should 
have possession till delivery of the 
conveyance, paying therefor a sum 
named, it was held that the relation 
of landlord and tenant existed, and 
that an action of use and occupation 
would lie. Nestal v. Schmid, 39 N. 
J. Law, 686. And one entering un- 
der an oral agreement by the owner 
to devise the land to him, he in the 
meantime to pay rent, was regarded 



314 TENANCY ACCOMPANYING OTHER RELATION. § 43 

contract, 2® or even after default.^** And when subsequent in time 
it may be made with the intent and effect of terminating the oper- 
ation of the contract of sale and the relation of vendor and pur- 
chaser,^! though it does not necessarily have that effect.*^ 

The fact that, in a contract for sale, the installments of the price 
to be paid or the interest thereon are spoken of as "rent," does 
not of itself, it has been held, evidence the relation of landlord and 
tenant,33 though an agreement to pay "rent" as compensation for 
the right of occupation does, it would seem, have that effect.** 

c. Tenancy on vendee's default. It is sometimes provided, 
at the time of the contract of sale or subsequently, that if the ven- 
dee does not comply with the conditions of sale as to payment of 
the price or otherwise, the vendee shall occupy the position of ten- 
ant and pay rent accordingly for the time of his occupation, and 
such a provision, in effect making the vendee liable as such or as 
tenant at his election, has been upheld in a number of cases.*^ 

as a tenant. Hopkins v. Ratliff, 32 See Nestal v. Schmidt, 39 N. J. 

115 Ind. 213, 17 N. E. 288. Law, 666; Moore v. Smith, 56 N. J. 

29 See post, note 31, 32. Law, 446, 29 Atl. 159; Jones v. Jones, 

30 See McCrinis v. Benoit. 26 R. I. 117 N. C. 254, 23 S. E. 214. 

421, 58 Atl. 108. 33 Walters v. Meyer, 39 Ark. 560; 

31 Powell V. Hadden's Exr's, 21 Quertermous v. Hatfield, 54 Ark. 16, 
Ala. 745; Thornton v. Strauss, 79 14 S. W. 1096; Vatson v. Pugh, 51 
Ala. 164; Wilkinson v. Roper, 74 Ala. Ark. 218, 10 S. W. 493. See Scofield 
140; Riley v. Jordan, 75 N. C. 180; v. McNaught, 52 Ga. 69; Sackett v. 
Dunn V. Tillery, 79 N. C. 497; Taylor Barnum, 22 Wend. (N. Y.) 605; 
V. Taylor, 112 N. C. 27, 16 S. E. 924; Blitch v. Edwards, 96 Ga. 606, 24 
Smith V. Fouche, 55 Ga. 120-; Barton S. E. 147. 

V. Smith, 66 Iowa, 75, 23 N. W. 271; 34, jackson v. Niven, 10 Johns (N. 

Chambers v. Irish, 132 Iowa, 319, Y.) 335; Nobles v. McCarty, 61 Miss. 

109 N. W. 787; Locke v. Prasher's 456. 

Adm'r, 79 Va. 409; Barrett v. John- 35 Collins v. Whigham, 58 Ala. 438; 
son, 2 Ind. App. 25, 27 N. E. 983; Foster v. Goodwin, 82 Ala. 384, 2 So. 
Spears v. Robinson, 71 Miss. 774, 15 895; Quertermous v. Hatfield, 54 
So. 111. Ark. 16, 14 S. W. 1096; Block v. 
Intervening rights cannot be af- Smith, 61 Ark. 26, 32 S. W. 1070; 
fected by such a contract. For in- Drum v. Harrison, 83 Ala. 384, 3 So. 
stance, if a third person has obtained 715; Smith v. Fouche, 55 Ga. 120; 
an interest in the crop, a lien can- Reddick v. Hutchinson, 94 Ga. 675, 
not be enforced for rent by the ven- 21 S. E. 712; Bacon v. Howell, 60 
dor, on becoming lessor, as against Miss. 362; Williamson v. Paxton, 18 
such person. Wilczinski v. Lick, 68 Grat. (Va.) 475. So, where the pur- 
Miss. 596, 10 So. 73. chase-money note provided that if 



§ 43 VENDOR AND VENDEE. 31 5 

Likewise, a contract of sale providing that tlie vendee shall occupy 
the position of tenant in case the vendor fails to make title has 
been upheld,36 as has a provision giving to the vendor the option 
to elect to regard the vendee as tenant instead of vendee, on de- 
fault in payment of the purchase price.^'? The existence of such a 
provision or agreement giving either the vendor or vendee the 
right, by election, to create the relation of landlord and tenant in 
place of that of vendor and vendee, does not, it has been decided, 
until the time for election has arrived, create the former rela- 
tion,3s but when it has arrived and the relation is created, the elec- 
tion relates back to the time of the making of the original agree- 
ment, and the rights incident to the relation take precedence of 
rights acquired before such election by third persons who took 
with notice, actual or constructive, of the terms of the agree- 
ment.^8 The Mississippi cases are to the effect that a third person 

the vendee failed to pay it at ma- and that the election once made was 
turity he should pay the "customary conclusive as to the relations of the 
rent," he was held to become a ten- parties from the time of the cou- 
ant upon such nonpayment. Ish v. tract. 
Morgan, 48 Ark. 413, 3 S. W. 440. 36 Eaton v. Hunt, 20 Ky. Law Rep. 

In Vick v. Ayres, 56 Miss. 670, it 860, 47 S. W. 763; Cross v. Freeman, 
was decided that where the contract 19 Tex. Civ. App. 428, 47 S. W. 473. 
of sale providing that the vendee, if 37 Stinson v. Dousman, 61 U. S. 
he failed to pay the purchase money (20 How.) 461; Dunn v. Tlllery, 79 
at the end of the year, should pay N. C. 497; Austin v. Wilson, 46 Iowa, 
a certain rent, was oral, though it 362. 

was void under the statute of frauds ss Cross v. Freeman, 19 Tex. Civ. 
as a contract of sale, it was valid as App. 428, 47 S. "W. 473 ; Oxford v. 
a lease for one year, and that the Ford, 67 Ga. 362; Killebrew v. Hines, 
vendor might distrain, after having 104 N. C. 182, 10 S. E. 159, 17 Am. 
unsuccessfully demanded the pur- St. Rep. 672; Green v. Dietrich, 114 
chase money, although he had not 111. 636, 3 N. E. 800 (semble). And 
tendered a deed. in Moore v. Smith, 24 111. 512, 

In Collins v. Whigham, 58 Ala. it is in effect decided that a mani- 
438, it was held that where the con- festation of the election is necessary 
tract conferred on A the right to in order to change the relation, 
become the purchaser by delivering 39 Collins v. Whigham, 58 Ala. 438; 
a certain amount of cotton annually, Thornton v. Strauss, 79 Ala. 164; 
or to become tenant by delivering a Foster v. Goodwin, 82 Ala. 384, 2 
less amount, the right of election So. 895; Bacon v. Howell, 60 Miss, 
was in A, since he was the first one 362; Abernethy v. Green (Miss.) 
to act, but if he failed to make elec- 11 So. 186. In these cases the rights 
lion at the time named for delivery of the vendor as landlord against the 
of the cotton, the other might elect, crops were regarded as superior to 



316 TENANCY ACCOMPANYING OTHEK RELATION. § 43 

is under the duty of seeking information of the vendor, in whom 
the legal title is vested, before he can claim to be without notice of 
such an agreement, even though it be oral.^'' 

Under a contract of this character, providing that the relation 
of landlord and tenant shall arise upon the vendee 's default, with 
a liability upon the part of the latter to rent at a sum named, the 
vendor has been allowed, after such default, to recover rent as 
against the vendee,*^ to assert a lien therefor,*^ and to enforce his 
claim by distress.*^ It has, however, been decided in one case that 
the fact that the contract of sale provides that in case of the ven- 
dee 's default he should hold the premises as "tenant" of the ven- 
dor did not entitle the vendor to recover against the vendee as 
for use and occupation, since the vendee, having paid part of the 
price, had "rights and equities under his contract of purchase 
which would defeat an action at law against him as a tenant."** 
And though there are decisions to the effect that such a provision 
gives the vendor a right, after the vendee's default, to bring sum- 
mary proceedings for possession against him as a tenant,*^ there 
are others in which a contrary view has been adopted.*'^ 

As before suggested, it is difficult to see why a mere informal 
permission to the vendee to take possession, or a clause to that 

those of a third person who had sufferance" was used in the contract, 

acquired an interest in the crops. but the words "at sufferance" were 

■*o See cases cited in next preced- in effect ignored hy the court, the 

ing note. question being whether the vendee 

*i Stinson v. Dousman, 61 U. S. was a tenant at all. 

(20 How.) 461; Block v. Smith, 61 islsh v. Morgan, 48 Ark. 413, 3 

Ark. 266, 32 S. W. 1070; Thornton S. W. 440; Barrett v. Johnson, 2 Ind. 

V. Strauss, 79 Ala. 164; Dunn v. App. 25, 27 N. E. 983. This seems 

Tillery, 79 N. C. 497. to be assumed in Griffith v. Collins, 

*2 Poster V. Goodwin, 82 Ala. 384, 116 Ga. 420, 42 S. E. 743, where, how- 

2 So. 895; Quertermous v. Hatfleld, ever, it was decided that there was 

54 Ark. 16, 14 S. W. 1096. no default by the vendee so as to 

*3 Oxford v. Ford, 67 Ga. 362; Red- create a tenancy, although he tend- 

dick V. Hutchinson, 94 Ga. 675, 21 ered the wrong amount of purchase 

S. B. 712; Tick v. Ayres, 56 Miss, money, it appearing that a tender of 

670. the right amount would have been 

**Hill V. Sidie, 116 "Wis. 602, 93 refused. 

N. W. 446, 96 Am. St. Rep. 1011, ap- *8 Chicago, B. & Q. R. Co. v. Skupa, 

proving Diggle v. Boulden, 48 Wis. 16 Neb. 341, 20 N. W. 393; Burkhart 

477, 4 N. W. 678, and disapproving v. Tucker, 27 Misc. 724, 59 N. Y. 

Wright V. Roberts, 22 Wis. 161. In Supp. 711. 
this case the expression "tenant at 



§ 43 VENDOR AND ySNDKE. 317 

effect in the written contract of sale, should not be as effective to 
make the vendee a tenant as is either a distinct formal lease to him 
or a clause in the contract of sale explicitly creating the relation 
of tenancy. The cases above referred to, recognizing the valid- 
ity of a provision that upon the vendee's default he shall be re- 
garded as tenant and liable for rent as such, generally assume that, 
apart from sucha stipulation, the vendee, though in possession, is 
not a tenant. Upon the view that he is a tenant even before de- 
fault, by reason merely of his permissive possession, it would seem 
that the effect of such a provision is, upon default, to substitute a 
new tenancy, subject to a prescribed rent, for the former tenancy, 
which would ordinarily not be subject to a rent or charge for use 
and occupation, in other words, that there would be a surrender 
by operation of law.*''' 

d. Tenant becoming vendee. As the relation of vendor and 
purchaser may be changed into that of landlord and tenant, so, 
conversely, an instrument which operates primarily as a lease may, 
it appears, subsequently take effect as a contract of sale by virtue 
of a provision therein that upon the payment of rent as agreed to 
an aggregate amount named the lessor shall make an absolute con- 
veyance to the lessee. But until the amount named is paid, the 
relation of landlord and tenant, with its incidental rights, will ex- 
ist between the parties.** 

There is at least one case apparently to the effect that the pres- 
ence of an option of purchase in an instrument which would other- 
wise take effect as a lease may prevent the landlord from having 
the benefit of the ordinary landlord's proceeding to recover pos- 
session.*" However this may be, as based on the construction of 

*7 See post, § l&O b. the court seems to be to a great 

48 Davis V. Robert, 89 Ala. 402, 8 extent based on the theory that the 
So. 114, 18 Am. St. Rep. 126; Blanch- purpose of the transaction was to 
ard v.Raines'Ex'x, 20Fla. 467; Crink- secure the payment of a debt. But 
ley V. Egerton, 113 N. C. 444, 18 S. this is not a reason for excluding 
E. 669; Quertermous v. Hatfield, 54 the relation of landlord and tenant. 
Ark. 16, 14 S. W. 1096; Nobles v. Mc- See post, § 45 d. 

Carty, 61 Miss. 456; Thomas v. John- in Reeder v. Bell, 70 Ky. (7 Bush) 
ston, 78 Ark. 574, 95 S. W. 468 ; Cros- 255, It was decided that one enter- 
kill V. Wortman,10 New Br. (5 Al- ing under an agreement to occupy 
l«n) 648. and care for the land for six years, 

49 Nightingale v. Barens, 47 'Wis. with the right to purchase when 
389, 2 N. W. 767. The opinion of able, was not a tenant within the 



318 TENANCY ACCOMPANYING OTHER RELATION. § 44 

the local statute in reference to such proceeding, the fact that 
there is such an option in the lessee can certainly not, for most 
purposes, change a lease into a contract of sale.^" 

§ 44. Grantor and grantee. 

If one who has made a conveyance of land retains possession, 
he may or may not do so as the tenant of his grantee. According 
to the decisions in one state, a grantor so retaining possession is 
presumed to do so as the grantee's tenant, that is, by the latter 's 
permission,6i while by other decisions he is prima facie not a ten- 
ant of the grantee and his possession is wrongful.^^ jj^^ what- 
ever may be the presumption in the absence of evidence bearing 
on the question, the true state of the case may be shown.^s And 
evidence that he retains the exclusive possession by the grantee's 
permission establishes the relation of landlord and tenant.^* 

summary proceeding statute. The" (N. Y.) 106; Greenup v. Vernor, IG 

ground of the decision is not stated. 111. 26. 

and it may have been on the theory 53 Preston v. Hawley, 101 N. Y. 

that such a person was a licensee 586, 5 N. E. 770; Id., 139 N. Y. 29G, 

merely. Compare Colored Home- 34 N. E. ^O^; Larrabee v. Lumbart, 

stead & Bldg. Ass'n v. Harvey, 23 34 Me. 79. 

Ky. Law Rep. 1009, 64 S. W. 676, to 54 preston v. Hawley, 101 N. Y. 
the effect that the presence of such 536 5 jsj. E. 770; Id., 139 N. Y. 296, 
an option does not exclude the re- 34 n. E. 906; Hunt v. Comstock, 15 
lation of tenancy. Wend. (N. Y.) 665; Prichard v. Ta- 
50 See Smith v. Brannan, 13 Cal. tor, 104 Ga. 64, 30 S. E. 415; Butler 
107; Colored Homestead & Bldg. v. Nelson, 72 Iowa, 732, 32 N. W. 
Ass'n V. Harvey, 23 Ky. Law Rep. 399; Cadwallader v. Lovece, 10 Tex. 
1009, 64 S. W. 676; Clifford v. Gres- Civ. App. 1, 29 S. W. 666, 917; Hod- 
singer, 96 Ga. 789, 22 S. E. 399; ges v. Gates, 9 Vt. 178. 
Granger v. Riggs, 118 Ga. 164, 44 S. sims v. Humphrey, 4 Denio (N. 
E. 983; Hand v. Williamsburgh City y.) 185, is contra. And in Golds- 
Fire Ins. Co., 57 N. Y. 41; Gilbert v. berry v. Bishop, 63 Ky. (2 Duv.) 114, 
Port, 28 Ohio St. 26; and other cases it was held that one who, having an 
cited post, chapter XXVI. equitable title under a bond to con- 
si Currier y. Earl, 13 Me. 216; vey, transferred his equity to an- 
Sherburne v. Jones, 20 Me. 70; Lar- other, retaining the right of posses- 
rabee v. Lumbert, 34 Me. 79. sion for a fixed time, was not the 
52Tew V. Jones, 13 Mees. & W. 12; tenant of his transferee. The de- 
Preston v. Hawlev 101 N. Y. S^'fi S eisidn is based on the ground that 
N. E. 77'l>; Id., 139 N. Y. 296, 34 N. there was no "reservation of rent" 
E. 906; Jackson v. Aldrich, 13 Johns, or "allegiance to the title." The 



§ 45 MORTGAGOR AND MORTGAGEE. 319 

It is occasionally asserted that a grantor retaining possession is 
a "tenant at sufferance. "^^ This presumably refers to the case 
in which he retains possession without permission of, his grantee, 
since one in possession by permission is not tenant at sufferance.^* 
There seems no objection to calling a grantor who retains posses- 
sion without permission tenant at sufferance, using this expression 
as a term broadly descriptive of a person wrongfully retaining pos- 
session after the expiration of a rightful possession, and, in the 
earlier authorities the expression was occasionally applied to per- 
sons in analogous positions, that is- to a feoffor to uses who re- 
tained possession,^^ and to a tenant for years continuing in pos- 
session after making a surrender .^s But a tenant at sufferance is, 
as we have before undertaken to show,^^ not properly a tenant of 
the person entitled to possession, and it appears to be beyond 
question that a grantor, holding over against his grantee's con- 
sent, is not a tenant "of" his grantee. 

§ 45. Mortgagor and mortgagee. 

a. Mortgagor in possession as tenant. In those jurisdictions 
in which the legal title to the premises does not pass by a mort- 
gage, the right of possession remains in the mortgagor, and no 
question can arise, by reason of the making of the mortgage, as to 
whether he is in possession as tenant or otherwise. But in juris- 

failure to reserve rent however, the tenant should have entered into 
does not affect the existence of a possession lawfully and should con- 
tenancy, and there was, it seems, tinue to hold after the termination 
allegiance to the title to the same of his right." But, as to this, see 
extent as in other cases of a ten- ante, § 15 a. 
ancy. ^* See ante, § 15 a. 

55 Bennett v. Robinson, 27 Mich. 57 See ante, § 15 a, at note 584. 

26; Stevens v. Hulin, 53 Mich. 93, ss "Tenant for years surrenders, 

18 N. W. 569; Hyatt v. Wood, 4 and still continues possession, he is 

Johns. (N. Y.) 150, 4 Am. Dec. 258; tenant at sufTerance or disseisor at 

Wolcott V. Hamilton, 61 Vt. 79, 17 election." Co. Litt. 57 b, note from 

Atl. 39. In Taylor v. O'Brien, 19 R. Lord Hale's Ms. 5. But in Belling- 

T. 429, 34 Atl. 739, it was even held ham v. Alsopp, Noy, 106, jt is said 

that a wife of the owner who re- that a bargainor continuing posses- 

tained possession after a conveyance sion after enrollment, is a disseisor, 

by the latter was a tenant at suffer- for the statute transfers the free- 

ance as to the grantee, it being said hold to the bargainee, 

that "to constitute a tenancy by suf- 59 See ante, § 15a, at notes 568- 

ferance, all that is necessary is that 573. 



320 TENANCY ACCOMPANYING OTHER RELATION. § 45 

dictions in which the legal title is vested in the mortgagee, the 
question whether the mortgagor is to be regarded as a tenant has 
been the subject of a number of discordant dicta. Lord Mansfield 
in one, case spoke of a mortgagor in such a position as a "tenant 
at will," «° and in another as a "tenant at will quodam modo," '^^ 
and there are other cases in which the mortgagor is spoken of as a 
tenant at will,®^ qj. ^s in some respects in the position of a tenant 
at will.^* On the other hand he is occasionally spoken of as a 
tenant at sufferance.®^ Sometimes it is said that he is not a ten- 
ant at all.^s To some extent, in accordance with this latter view, 
are a number of decisions in this country that the mortgagee has 
no right to bring summary proceedings to recover possession of 
the premises from the mortgagor on default.^® 

Considering this question of the legal relation of a mortgagor 
in possession to the mortgagee, as it may arise in that class of 
states in which the legal title is transferred to the mortgagee by 

60 Keech v. Hall, 1 Doug. 21. will, the moAgagor was at all events 

61 Moss V. Galllmore, 1 Doug. 279. a tenant at sufferance. 

62 Ex parte Isherwood, 22 Ch. Div. In Mason v. Gray, 36 Vt. 308, it 
391, per Jessel, M. R.; Dickenson v. ^^ said that the mortgagor is a ten- 



Jackson, 6 Cow. (N. Y.) 147; Judd 
V. Woodruff, 2 Root (Conn.) 298. 



ant at sufferance after default to the 

extent that ejectment will He 

against him without notice to quit, 
esjamieson v. Bruce, 6 GilL & J. ^^^ ^^ ^^^ ^^^^ ^^^ ^.j^^^ 

(Md.) 72, 26 Am. Dec. 557; Wash- ^ ^^,^^^^^ ^3 ^^ ^^3. ^^^^^^^ ^ 

ington Bank v. Hupp, 10 Grat. (Va.) (ja^gg^j. ^g y^ g^g 

23. In Vance's Heirs v. Johnson, 29 ^5 ^jit^n v. 'Dunn, 17 Q. B. 294; 

Tenn. (10 Humph.) 215, it i^ said Hickman v. Machln, 4 Hurl. & N. 716; 



that the mortgagor is not strictly a 



Litchfield v. Ready, 20 Law J. Exch. 



tenant at will. 5^. j^^^gg ^_ jj.jj^ g^ jj_ ^ ^gg. p^g 

64 See Thunder v. Belcher, 3 Bast, ^ grown v. Mace, 7 Blackf. (Ind.) 

450; Gibhs v. Cruikshank, L. R. 8 g; Ray v. Boyd, 96 Ga. 808, 22 S. B. 

C. P. 454; Scobie v. Collins [1895] gj^g 

1 Q. B. 375; American Mortg. Co. v. ^6 Willis v. Eastern Trust & Bank- 
Simmons, 95 Ala. 272, 11 So. 211. j^g ^^^ jgg y g 395; Hastings v. 
Contra, per Patteson, J., in Wilton p^att, 62 Mass. (8 Cush.) 121; 
V. Dunn, 17 Q. B. 294. Bvertson v. Sutton, 5 Wend. (N. Y.) 
In Smartle v. Williams, 1 Salk. 281, 21 Am. Dec. 217; Roach v. 
246, 3 Lev. 387, it was said by Holt, Cosine, 9 Wend. (N. Y.) 227; Mc- 
C. J., that a mortgagor who re- Combs v. Wallace, 66 N. C. 481; 
mained in possession by agreement Hunter v. Manum, 78 Wis. 656, 48 
was a tenant at will, and that even n. W. 51; Ballow v. Motheral, 64 
after the mortgagee had assigned his Tenn. (5 Baxt.) 602; Kuhn v. 
mortgage, thereby determining the Feiser, 40 Tenn. (3 Head) 82. 



§ 45 MORTGAGOR AND MORTGAGED. 321 

the making of the mortgage, it seems a matter of primary import- 
ance to distinguish between the case in which the mortgagor re- 
mains in possession by permission of the mortgagee, either oral or 
in writing, and that in which he remains in possession merely be- 
cause the mortgagee does not care to take possession and thereby 
incur responsibility for rents and profits. In the former case the 
mortgagor is, it seems, a tenant of the mortgagee as having per- 
missive possession under him.®'^ In the latter case he is not a ten- 
ant of the mortgagee, it is submitted, since he does not hold under 
him. He is, technically speaking, from the standpoint of a court of 
law, wrongfully in possession, as appears from the fact that eject- 
ment will lie against him at the suit of the mortgagee without any 
previous demand of possession.^s The mortgagor so retaining the 
possession without permission is in the same position as a grantor 
who retains possession without permission.®^ He may properly be 
called "tenant at sufferance," provided this is not regarded as 
meaning that he is a tenant "of" the mortgagee.'^** 

It has been decided that a proviso or agreement in the mortgage 
instrument to the effect that the mortgagor shall possess or enjoy 
he land until default in payment of principal or interest takes ef- 
fect as a "redemise," that is a "lease back," until such default.'^i 
And such would seem the reasonable and satisfactory view. His 
right of possession is based on the fact, not that he is a mortgagor, 
but that the right of possession is granted to him, and apart from 
such grant or redemise he has no right to possession.''^ There are, 
however, cases to the effect that a mortgagor thus in possession by 

67 So a mortgagee in possession '<> See ante, § 15 a, at notes 568- 

may, subsequently, to the mortgage, 573. 

lease to the mortgagor. Baum v. ti Wilkinson v. Hall, 3 Bing. N. 

Gaffy, 45 111. App. 138. C. 508; Wheeler v. Monteflore, 2 Q. 

S8 Doe d. Roby v. Malsey, 8 Barn, B. 133; Doe d. Lyster v. Goldwin, 

& C. 767; Doe d. Parsley v. Day, 2 Q. 2 Q. B. 143; Powsely v. Blackman, 

B. 147; Rockwell V. Bradley, 2 Conn. Cro. Jac. 659 (dictum); George's 

1; Mason v. Gray, 36 Vt. 308. In a Creek Coal & Iron Co.'s Lessee v. 

court of equity, however, his re- Detmold, 1 Md. 225; Richardson v. 

tention of possession being in ac^ Baltimore & D. B. R. Co., 89 Md. 

cordance with usage, and the mort- 126, 42 Atl. 938. See Marden v. 

gage being regarded as a security Jordan, 65 Me. 9; Mayo v. Fletcher, 

only, his possession is not regarded 31 Mass. (14 Pick.) 525; Black v. 

as wrongful, and he is not bound to Allan, 17 U. C. C. P. 240. 

account for rents and profits. ^2 See ante, at note 68. 

89 See ante, § 44. 

L. and Ten. 21. 



322 TENANCY ACCOMPANYING OTHER RELATION. | 45 

the permission of the mortgagee is not his tenantJ^ Looking 
closely at the character of such redemise, it would seem to be in 
effect a demise to run until the time for payment of the principal, 
or of the last instalment of the principal, subject ordinarily to a 
collateral limitation, or limitations, terminating the mortgagor's 
right of possession at the option of the mortgagee upon an earlier 
default by him in the payment of interest or in such other matters 
as may be specified. For instance, if the mortgage is to secure a 
debt payable in five years, a provision that the mortgagor shall 
have possession until default in principal or interest would be in 
effect a redemise to the mortgagor for five years, subject to a limi- 
tation terminating the demise upon any default. One difficulty 
which might arise in this connection, but which is perhaps of little 
practical importance, in view of the general tendency of courts of 
law to recognize equitable defenses, as well as of the fact that the 
rights of mortgagor and mortgagee are ordinarily adjusted in 
equity, is that, from a strictly legal point of view, the term of years 
thus vested in the mortgagor by the redemise would pass to his 
personal representative, and not, with his ' ' equity of redemption, ' ' 

'3 Sadler v. Jefferson, 143 Ala. 669, distinct relation of tenant and land- 

39 So. 380; Roach v. Cosine, 9 Wend, lord." Citing Anderson v. Strauss, 

(N. Y.) 227; Ragan v. Simpson, 27 98 III. 485. But this statement 

Wis. 355; Nightingale r. Barens, 47 does not meet the question. When 

Wis. 389, 2 N. W. 767; Davis v. Hem- a mortgagee having the legal title in 

enway, 27 Vt. 589. fee and the consequent right of pos- 

In Willis v. Eastern Trust & Bank- session grants to another the right 
ing Co., 169 TJ. S. 295, where it was of exclusive possession for a limited 
decided that the presence of such a period, and the latter holds posses- 
provision for possession did not sion under such grant, if his posses- 
make the mortgagor tenant of the sion is not in the capacity of tenant 
mortgagee for the purpose of a of his grantor, in what capacity is 
statutory proceeding to obtain pos- it? It is not in the capacity of mort- 
session, Mr. Justice Gray, in de- gagor, because a mortgagor, as such, 
livering the opinion of the court, has, in the jurisdictions under con- 
says: "An express stipulation in sideration, no right of possession, 
the mortgage that the mortgagor The Illinois case referred to gives 
may remain in possession until no aid in the solution of the ques- 
breach of condition is intended tion. 

merely to put in definite and bind- In Barson v. Mulligan, 191 N. Y. 

ing form the understanding of the 306, 84 N. E. 75, 16 L. R. A. (N. 

parties as to the exercise of their S.) 151; Constant v. Barrett, 13 

rights as mortgagor and mortgagee. Misc. 249, 34 N. Y. Supp. 163, it is 

and not to create between them a held that a lessee cannot, by the 



§ 45 MORTGAGOR AND MORTGAGEE. 323 

to his heir or devisee,^* though such personal representative 
would, in equity, be compelled to hold the possession in trust for 
the heir or devisee. 

It has been stated in an English case that a provision for the 
retention of possession by the mortgagor, even though he failed to, 
pay the sum secured vyhen due, until possession was demanded by 
the mortgagee, did not operate as a redemise for lack of certainty 
as to timers This statement is hard to comprehend, since the 
validity of a demise not for a certain time, such as one for life or 
at will, has always been recognized. Even if the mortgagor, thus 
given the right to possession until default, is not a tenant for years 
until the time for payment of principal, as we have before suggest- 
(»d him to be, he is at least, it seems, a tenant at will. It was said 
many years ago, by a great judge,'^^ that "upon executing the deed 
of mortgage, the mortgagor, by the covenant to enjoy till default 
of payment, is tenant at will, ' ' and such, it is submitted, must be 
the status of the mortgagor when given the right of possession, 
but not until default or for any other j&xed time, unless perhaps in 
some cases in which the provision for the retention of possession 
by the mortgagor might be construed as a limitation of a life es- 
tate or a fee to the mortgagor until default.''^ The possibility of 
the creation of a tenancy at will in favor of the mortgagor is fully 
recognized in the later English cases.'* To render the mortgagor 
a tenant at will, however, as distinct from a mere vrrongdoer, there 
must, it seems, be language, or at least affirmative acts, on the part 
of the mortgagee, showing his assent to the mortgagor's continu- 
ance in possession,''* and his mere failure to oust him cannot show 
such an assent.*" 

purchase of a past due mortgage on 122; Morton v. Woods, L. R. 3 Q. 

the premises, obtain a right to hold B. 658, L. R. 4 Q. B. 293; Scobie v. 

as mortgagee in possession. Collins [1895] 1 Q. B. 375; Doe d. 

7* See 1 Powell, Mortgages, 157 b, Dixie v. Davies, 7 Bxch. 89. See 

note; 3 Man. & R. 109, note to Doe Ashford v. McNaughten, 11 U. C. 

d. Roby V. Maisey. Q- B. 171; Pegg v. Independent 

T5 Doe d. Parsley v. Day, 2 Q. B. Order of Foresters, 1 Ont. Law 

147 Rep. 97. 

70 Holt, C. J., in Smartle v. Wil- '"See ante, § 13 a (5). 

liams, 1 Salk. 246, 3 Lev. 387. ^o "Whether the mortgagor in pos- 

TT See Sergeant Manning's note in session is to be considered as a 

3 Man. & R., at p. 109. tenant at will, or as a tenant at 

78 Doe d, Bastow v. Cox, 11 Q. B. sufferance, seems to depend upon 



324 TENANCY ACCOMPANYING OTHER RELATION. § 45 

The redemise, or lease back from the mortgagee to the mort- 
gagor, need not, it seems evident, be incorporated in' the same 
iii.struuient as the mortgage, nor need it be in writing. But in 
or. ler that a provision for possession in the mortgagor may take 
effect as a redemise creating a term of years in him, if the time to 
elapse before payment of the principal is greater than that for 
which an oral lease is valid under the statute of frauds, the pro- 
vision must, it seems, be in writing signed by the mortgagee, and, 
on the same principle, it would seem that such a provision in a 
written mortgage instrument could so take effect only when the 
instrument is signed by the mortgagee as well as the mortgagor. 
If not sufficient to satisfy the statute of frauds, the provision for 
possession by the mortgagor would make him merely a tenant at 
will of the mortgagee.*! There are, however, decisions, in which 
the failure of the mortgagee to execute the instrument has been 
regarded as immaterial.®^ 

the proof, or absence of proof, of as- the mortgagor the exclusive pos- 
sent to such possession on the part session, though the instrument was 
of the mortgagee." Sergeant Man- executed only by the mortgagor, it 
ning's note to Doe d. Roby v. Maisey, jjej^g s^i^ that such a provision 
3 Man. & R. 107. So it Is said in a operated either "by estoppel or res- 
late edition of Smith's Leading g^^^tion," the mortgagee having ac 
Cases (11th Ed., at p. 542) : "It is ^^^^^^ .^ ^^ ^^p^^^^ reference is 
believed that no decision, (as dis- ^^^^ ^^ ^j^^ ^^^^^^^ ^^ ^^^^^^^ ^^^ 

tinguished from dictum) exists in p^eg^^^^ly this was in the mind of 

which a mortgagor remaining in pos- ^j^^ ^^^^^ ^^^ ^^^^ .^ ^^^ ^^.^p^^jy 

.session, after an absolute convey- ^^^ ^^ -reservation" (see 2 Tiffany, 

ance away of his estate by way of j^^^j p^^^^ g 333^^ ^^^ j^ ^ ^^^^ 

mortgage, without any consent on ^^^^^^ ^.^ ^^ unsigned Instrument is 



the part of the mortgagee, express 
or to be implied otherwise than 
from his silence, has been consid- 
ered in any other light than as ten- 
ant at sufferance, to the definition 
of whom he seems strictly to ans- 



sufRcient to estop one to assert the 
statute, the statute becomes nuga- 
tory. The above decision is adopt- 
ed, without discussion, in Georges 
Creek Coal & Iron Co.'s Lessee v. 
Detmold, 1 Md. 225, and in Loring 
wer, being a person who comes in by ^ ^^^^^^tt, 4 App. D. C. 1. See, 
right and holds over without right." ^j^^^ ^^^ discordant opinions in 

81 Morton v. Woods, L. R. 4 Q. B. tt 1,1, r^ ^ ■ x o m x /-. 

^ Hobbs V. Ontario Loan & Trust Co., 

■ 18 Can. Sup. Ct. 483, as to the effect 

82 In Flagg V. Flagg, 28 Mass. (11 ^j the mortgagee's failure to execute 
Pick.) 475, it was held that a pro- the instrument, and Linstead v. 
vision that the mortgagor should re- Hamilton Provident & Loan Soc., 11 
tain possession during his life gave Man. Rep. 199, adopting the view 



§ 45 MORTGAGOR AND MORTGAGEE. 325 

There are English authorities to the effect that while a proviso 
in the mortgage instrument that the mortgagor shall take the 
profits until default in payment at a certain day will be effective as 
a redemise, words of a negative character, as that the mortgagee 
shall not enter or shall not take the profits till such day, cannot 
have such an effect but operate merely as a covenant.*^ The 
grounds for such a distinction do not appear, and it would rather 
seem that in each case it is properly a question of construction of 
the words used, whether positive or negative in form, as to the 
intention to vest the possession for a limited period in the mort- 
gagor. In accordance with this view are decisions in this country 
in which a right in the mortgagor to retain possession has been 
inferred from expressions merely indicative of such an understand- 
ing, without any provision in terms referring to the possession or 
profits of the land.^* 

b. Mortgagee in possession as tenant. In those states in 
which the legal title, with the right of possession, ordinarily re- 
mains, by statute, in the mortgagor, an express provision in the 
mortgage instrument that the mortgagee shall have the possession, 
if effective to give the mortgagee the exclusive possession, as it is 
generally conceded to be,^^ must, it seems, be regarded as a lease 
or demise.*® It is unfortunate that, in construing provisions of 

taken by the majority of the judges was made -when the mortgagor's 

in that case that such failure was right of possession was inferred 

immaterial. from the fact that the mortgage was 

S3 Powseley v. Blackman, Cro. Jac. one for support. See Flanders v. 

659; Doe d. Parsley v. Day, 2 Q. B. Lamphear, 9 N. H. 201; Wales v. 

147, citing Sheppard's Touchstone Mellen, 67 Mass. (1 Gray) 512; 

(Preston's Ed.) 272. See Georges' Soper v. Guernsey, 71 Pa. 219; 

Creek Coal & Iron Co.'s Lessee v. Kransz v. Uedelhofen, 193 111. 477, 

Detmold, 1 Md. 225, apparently ap- 62 N. E. 239. 

proving the distinction. 85 See Edwards v. Wray, 12 Fed. 

8* In Lamh v. Foss, 21 Me. 240; 42; Rogers v. Benton, 39 Minn. 39, 

Clay v. Wren, 34 Me. 187; Hartshorn 38 N. W. 765, 12 Am. St. Rep. 613; 

V. Hubbard, 2 N. H. 453, the mort- Dutton v. Warchauer; 21 Cal. 609, 82 

gagor's right of possession was in- Am. Dec. 765; Spect v. Spect, 88 Cal. 

ferred from a provision that he 437, 26 Pac. 203, 13 L. R. A. 137, 22 

should furnish produce from the Am. St. Rep. 314; Brundage v. Home 

mortgaged premises to the mort- Sav. & Loan Ass'n, 11 Wash. 277, 39 

gagee, and it was held that the mort- Pac. 666. 

gagee could not recover possession «« But in People v. Culver, 21 

from the mortgagor. A like decision How. Pr. (N. Y.) 108, a mortgagee 



326 TENANCY ACCOMPANYING OTHER RELATION. § 45 

this character, as well as provisions giving the mortgagor the 
right of possession, the courts have ordinarily refrained from con- 
sideration of the principles on which such provisions are to be re- 
garded as operating. 

In those jurisdictions in which the legal title is vested in the 
mortgagee, he is entitled to possession as having such title, in the 
absence of a provision giving possession to the mortgagor. If the 
mortgagor is tenant under another person, the mortgagee will or- 
dinarily, as his assignee, become tenant in his stead,®'^ and if the 
mortgage is in the form of a lease,^* the mortgagee will be in, it 
seems, as the mortgagor's tenant. Ordinarily, however, the pos- 
session of the mortgagee, being the result of the transfer to him of 
the legal title in fee, involves no relation of tenancy between him 
and the mortgagor. 

c. Attornment clause. In England a mortgage instrument 
quite frequently contains what is known as an "attornment 
clause," by which the mortgagor acknowledges that he holds as 
tenant of the mortgagee, usually at a certain named annual rent, 
equal to the annual interest, the object being to secure to the mort- 
gagee a right of distress for the interest, and to give him the right 
to bring the statutory proceedings to obtain possession on de- 
fault.®* The nature of the tenancy created depends on the lan- 
guage of the attornment clause,*" but even though the language is 
such as to create a tenancy for years or from year to year, a pro- 
vision that the mortgagee may at any time, without previous no- 
tice, before or after default, enter upon the premises, has been 
held to give him the option to terminate the tenancy.*^ An attorn- 
ment clause does not, ordinarily, it seems, provide in express terms 
that the mortgagor shall retain possession, but this is necessarily 
involved therein, and there is in effect a lease, a "redemise," by 

let into possession by the mortgagor Leading Cases (11th Ed.) 514 et 

is said to be in as mortgagee, and seq., note to Moss v. Gallimore. 

not as tenant. !>» Doe d. Garrod v. Olley, 12 Adol. 

8T See post, •§ 155. & E. 481; Doe d. Snell v. Tom, 4 Q. 

88 See post, § 45 d. B. 615 ; Metropolitan Counties & Gen- 

80 See Jolly v. Arbuthnot, 4 De eral Life Assur., Annuity, Loan & 

Gex & J. 224; Kearsley v. Philips, 11 Inv. Soc. v. Brown, 4 Hurl. & N. 428; 

Q. B. Div. 621; Daubuz v. Laving- Morton v. Woods, L. R. 4 Q. B. 293. 

ton, 13 Q. B. Div. 347. The cases 91 See Morton v. "Woods, L. R. 3, 

are fully discussed in 1 Smith's Q. B. 658; 8 L. R. 4, Q. B. 293. 



§ 45 MORTGAGOR AND MORTGAGEE. 327 

the mortgagee to the mortgagor, as if the ordinary language of 
leasing were used. 

d. Mortgage relation not exclusive of tenancy. It clearly ap- 
pears from the decisions above referred to that the relation of land- 
lord and tenant may exist concurrently with that of mortgagor 
and mortgagee, and, it is submitted, it almost invariably exists if 
the party otherwise entitled to possession, whether the mortgagor 
or the mortgagee, grants the right of possession to the other. 
Likewise, the relation of landlord and tenant may exist between 
the mortgagor and mortgagee in states in which a mortgage con- 
veys the legal title, by reason of the fact that the mortgage is in 
the form of a lease subject to a condition subsequent, instead of in 
the form of a conveyance in fee so subject. The recognized method 
of giving a mortgage on a term of years is, in England, by 
means of a sublease rather than an assignment, since thereby the 
mortgagee does not become subject to a possible liability on the 
covenants of the original lease. In at least one state in this coun- 
try, likewise, it may be remarked, it has been a usual practice to 
secure the repayment of a loan by a conveyance in fee to the lend- 
er from the borrower, and a lease back to the latter, with a pro- 
vision for- the payment of a rent equal to the interest on the loan, 
and a right in the borrow^er to a conveyance of the fee upon the 
repayment of the amount of the loan, the courts applying to such 
a transaction the principles applicable to mortgages, but recog- 
nizing, at the same time, that there is a lease.^^ Thg mortgage 
may also provide that the mortgagee shall become tenant of the 
mortgagor from and after default,®^ or, after a default has taken 

»2 See Montague v. Sewell, 57 Md. premises as tenant to the mort- 

407; Posner v. Bayless, 59 Md. 56; gagee, the mortgagor did not become 

Grand United Order of Odd Fellows a tenant, subject to distress, upon 

V. Merklin, 65 Md. 579, 5 Atl. 544. default, but a notice from the mort- 

The validity of such a transaction gagee of the change in the terms of 

for the purpose of securing a debt his holding was necessary. In 

is recognized in Knowles v. Murphy, Equity Bldg. & Loan Ass'n v. Mur- 

107 Gal. 107, 40 Pac. 1047. phy, 75 Mo. App. 57, it was held that 

93 Clowes V. Hughes, L. R. 5 E*xch. a provision In a deed of trust to 

160. In this case it was decided secure a debt that, upon default, the 

that under a provision that, in the maker should become the tenant of 

event of a default by the mortgagor, the creditor, entitled the latter to 

he should "immediately or at any bring unlawful detainer against 

time after such default" hold the him. 



328 TENANCY ACCOMPANYING OTHER RELATION. | 45 

place, the mortgagor may accept a lease from the mortgagee.^* 
In view of these various cases in which the concurrent existence 
of the relation of landlord and tenant and that of mortgagor and 
mortgagee have been recognized, it is somewhat singular that occa- 
sionally the view has been taken, apparently, that these two rela- 
tions are irreconcilable.^*" No court would allow the relation of 
landlord and tenant to be created as a cloak for the extortion of 
usurious interest, nor to deprive the borrower of the right of re- 
demption, or of any other rights incident to the position of mort- 
gagor, but, apart from these considerations, the possibility of the 
simultaneous existence of the two relations would seem unques- 
tionable. 

§ 46. Purchaser at execution sale and former owner of land. 

In a few cases it is asserted that an execution defendant who re- 
mains in possession after the sale is a "tenant at sufferance.""^ 
As in the case of a grantor who remains in possession after his 
conveyance, without the permission of his grantee,®^ there is no 
objection to calling the execution debtor so retaining possession a 
tenant at sufferance, provided this is not regarded as meaning that . 
he i§ a tenant holding "of" or "under" the execution purchaser, 
since, as a matter of fact, his possession is not derived from such 
purchaser and he has in no way recognized the latter as his land- 
lord. He may no doubt enter into a relation of tenancy with such 
purchaser, as by accepting a lease from him, or attorning to him. 
Otherwise he is not the tenant of the purchaser, as has been several 
times decided,^^ and, if he does enter in to the relation, he is there- 
after not a tenant at sufferance. 

04 Ford V. Green, 121 N. C. 70, 28 Powell v. DeHart, 55 Ind. 94; Griffin 
S. E. 132; Murray v. Riley, 140 v. Rochester, 96 Ind. 545; Keaton v. 
Mass. 49'0', 6 N. E. 512. Thomasson's Lessee, 32 Tenn. (2 

94a See Roach v. Cosine, 9 Wend. Swan) 138, 58 Am. Dec. 55; Chalfin 

(N. Y.) 227; Greer v. Wilhar, 72 N. v. Malone, 48 Ky. (9 B. Mon.) 496, 50 

C. 592; Davis v. Hemenway, 27 Vt. Am. Dec. 525; Cook v. Norton, 48 111. 

589; Ragan v. Simpson, 27 Wis. 355; 20; Wyman v. Hook, 2 Me. (2 

Nightingale v. Barens, 47 Wis. 389. Greenl.) 337; O'Donnell v. McMur- 

05 Dobbins v. Lusch, 53 Iowa, 304; die, 25 Tenn. (6 Humph.) 134. 
Currier v. Earl, 13 Me. 216; Brigant In Meyer v. Beyer, 43 Wash. 368^ 
V. Tucker, 19 Me. 383. 86 Pac. 661, it was decided that one 

98 See ante, § 44. whose property was sold under a 

»7 Tucker v. Byers, 57 Ark. 215; mechanic's lien and who continued 



§ 47 PURCHASER AT FORECLOSURE SALE. 329 

§ 47. Purchaser at foreclosure sale and former owner of land. 

A mortgagor, or his transferee, retaining possession after a 
sale under the mortgage, has been said to be a tenant at suffer- 
ance.®* Assuming that his possession after the sale is wrongful,"''' 
he may, like a debtor retaining possession after execution sale, be 
termed a tenant at sufferance, it being borne in mind that this does 
not mean a tenant "of" or "under" the purchaser .lo" Further- 
more, if a lease is made to the mortgagor by such purchaser after 
the sale, or, which is the same thing, there is an acceptance by 
the latter of an attornment by him, the mortgagor evidently be- 
comes not a tenant at sufferance, but at least a tenant at will.^"^ 
The important and difficult question, however, is whether, in the 

in possession claiming as owner relation of tenancy or quasi tenancy, 

could not be regarded as the tenant but is properly to be based on a rule 

of the purchaser for the purpose of of public policy that a defendant in 

a summary proceeding. execution should not be allowed to 

The New York statute authorizing render a sale under execution an 

a summary proceeding in favor of Inadequate means of obtaining satis- 

the purchaser at execution against faction of the judgment by requiring 

the debtor speaks of the former as the purchaser, before he can obtain 

landlord and the latter as tenant, possession, to prove the validity of 

In reference to this, Demlo, J., well the defendant's title, 

says: "A person thus holding over os Allen v. Carpenter, 15 Mich. 25; 

is not, it is true, in any ordinary Ramsdell v. Maxwell, 32 Mich. 285; 

sense a tenant, though he may be Kinsley v. Ames, 43 Mass. (2 Mete.) 

called such for some technical pur- 29; Johnson v. Donaldson, 17 R. I. 

pose; nor is the person who pur- 107, 20 Atl. 242; Taylor v. O'Brien, 

chased on the execution, or a party 19 R. I. 429, 34 Atl. 739; Tucker v. 

who has acquired his title, in any Keeler, 4 Vt. 161. 

proper sense a landlord." Spraker »9 See ante, § 46. 

V. Cook, 16 N. Y. 567. And to the looin-Luchs v. Jones, 8 D. C. (1 

same effect, see the remarks of McArthur) 345, it was considered 

Folger, C. J., in People v. McAdam, that, in view of the language of the 

84 N. Y. 287. local statute providing that all oceu- 

In Siglar v. Malone, 22 Tenn. (3 pation or possession without express 

Humph.) 16; Wood v. Turner, 26 contract or lease should be deemed 

Tenn. (7 Humph.) 517, it is said a tenancy at sufferance, the mort- 

that an execution defendant is a gagor was tenant at sufferance to 

quasi tenant of the purchaser, and the purchaser at foreclosure sale, 

as such precluded from denying the and so liable to a summary proceed- 

validity of the title which passed by ing for his expulsion. This view is 

the sale. It is submitted that his disapproved in Willis v. Eastern 

preclusion to deny the title in such Trust & Banking Co., 169 U. S. 295. 

case is entirely independent of any loi See Granger v. Parker, 137 



330 TENANCY ACCOMPANYING OTHER RELATION. § 47 

absence of such creation of the relation by some legal act subse- 
quent to the sale, the mortgagor can in any case be regarded as 
the tenant of such purchaser, that is, as rightfully in possession 
under him. We will first consider this question on the theory that 
by the mortgage a legal title is vested in the mortgagee, or in a 
trustee for sale to satisfy the debt, and will subsequently consider 
the question on the theory that the mortgage creates a lien only. 

Assuming that in the particular case there is no grant by the 
mortgagee to the mortgagor of the right of possession, no "re- 
demise," ^^^ the possession of the latter must be wrongful, the 
leal title being in the mortgagee, and so it must be wrongful as 
against the purchaser at the sale, unless the latter grants such 
right. In case there is a redemise to the mortgagor, giviag him a 
right of possession until the sale, or giving him the rights of a ten- 
ant at will, the tenancy would, it seems, come to an end upon the 
sale. There might, however, be a redemise in such form that the 
tenancy thereby ereated would not terminate upon the sale, as, 
for instance, in case the mortgage instrument provided, although 
the principal was to become due in five years, that the mortgagor 
should remain in possession for ten years from the date of the 
mortgage. In such case the mortgagor would be the tenant of 
the mortgagee or his assignee until foreclosure, and upon fore- 
closure by sale, either in equity or under a power contained in the 
mortgage instrument, the mortgagor would become tenant of the 
purchaser, the person to whom the reversionary estate has 
passed.i'^3 

Such a provision, in terms redemising the premises to the mort- 
gagor for a period longer than that for which the mortgage is to 
run, is no doubt unusual, but the observations just made may have 
a bearing upon the question of the validity of a provision occa- 
sionally fotmd, that the mortgagor shall become the tenant of the 
purchaser at the sale. Such a provision, in connection with a 

Mass. 228; Ramsdell v. Maxwell, 32 trustee to the mortgagor, the mort- 

Mich. 285; Eldridge v. Hoefer, 45 gagor agreeing "to surrender peace- 

Or. 239, 77 Pac. 874. able possession" with ten days 

102 See ante, § 45 a. after foreclosure sale, and the pur- 

103 In Sexton v. Hull, 45 Mo. App. chaser was regarded as succeeding 
339, this theory was apparently ap- to the rights of the trustee as land- 
plied, the mortgage instrument con- lord. 

taining a redemise by the mortgage 



§ 48 , MASTER AND SERVANT. 33X 

mortgage or deed of trust containing a power of sale on default, 
has been decided to be effective for the purpose of giving the pur- 
chaser the remedies of a landlord to recover possession from the 
mortgagor,^^* and also to recover rent to the amount named in 
the mortgage instrument."" These decisions, which contain no 
discussion of the matter on principle, can, it is conceived, be sup- 
ported only by regarding the tenancy under the purchaser as the 
same tenancy as that created by the redemise, and the purchaser 
as a transferee of the mortgagee or trustee, taking subject to the 
mortgagor's tenancy, thus applying the view above suggested, 
that the redemise may create a tenancy to continue until after sale 
on default. One possible difficulty with the explanation just given 
of the mode of operation of such a clause is that the decisions 
recognizing its validity appear to regard the mortgagor, in the 
particular ease, as a tenant at will of the purchaser, but there is, 
it is conceived, no objection to a demise which creates both a ten- 
ancy for years to endure until a certain event, the time named for 
the payment of a debt for instance, and also a tenancy at will, to 
arise upon the termination of the tenancy for years, they consti- 
tuting in the view of the law but a single tenancy. 

The explanation, above suggested, of the possible operation of 
such a clause making the mortgagor tenant of the purchaser, can- 
not possibly apply in jurisdictions where the mortgagee has not 
the legal title, and, consequently, the mortgagor cannot, before 
the sale, be regarded as a tenant of the mortgagee or trustee. And 
in order, in those jurisdictions, to give validity and effectiveness 
to such a clause, it would be necessary to assume that one person 
(here the mortgagor) may, by a declaration to that effect, make 
himself the tenant, from and after the future sale of the land, of 
the person unknown who may purchase at such sale, an assump- 
tion which, on principle, is somewhat difficult to support. 

§ 48. Master and servant. 

One may at the same time be seryant of another person and also 
his tenant. "There is no inconsistency in the relation of master 
and servant with that of landlord and tenant. A master may pay 

104 Griffith V. Brackman, 97 Tenn. App. 12; Brewster v. McNab, 36 S. 
387, 37 S. W. 273, 49 L. R. A. 435. C. 274, 15 S. E. 233; Parsons v. Pal- 

105 Wade V. Mc'cormack, 68 Mo. mer, 124 Mo. App. 50, 101 S. W. 609. 



332 TENANCY ACCOMPANYING OTHER RELATION. § 43 

his servant by conferring on him an interest in real property, 
either in fee, for years, or at will, or for any other estate or inter- 
est, and if he do so, the servant then becomes entitled to the legal 
incidents of the estate, as much as if it were purchased for any 
other consideration. "1 06 So one who is already a tenant may en- 
ter the service of his landlord, or a servant may take a lease from 
his master, without affecting the existing relation or his right to 
the stipulated remuneration for his services. Frequently, how- 
ever, it is a question of very considerable difficulty whether a 
servant, who is in occupation of a house or other premises belong- 
ing to the master, and who went in as a result of the contract of 
employment, is to be regarded as a tenant or as merely occupying 
in his ministerial capacity on behalf of his master,, the latter re- 
taining the legal possession. 

The English cases are to the effect that the servant is in occu- 
pation as a tenant if he is permitted to occupy for his own con- 
venience by way of partial remuneration for his services,i°^ while 
if his occupation is necessary for the better discharge of his du- 
ties,i"'s or if he is required by his master to reside on particular 
premises,!"® his occupation is regarded as that of a servant and 
not of a tenant. The fact that the wages are lower owing to the 
fact that the employee is allowed to occupy a house belonging to 
his employer has been held not to show that he is a tenant,ii° and 
the same view has been taken of the presence of an express stipu- 
lation that, in case of the termination of the contract, possession 
shall be relinquished upon the giving of a specified notice,^ as 

106 Per Tindall, C. J., in Hughes v. 285. And see Rex v. Stock, 2 Taunt. 
Overseers of Chatham, 5 Man. & G. 329; Rex v. Inhabitants of Chestnut, 
54, quoted with approval in Kerrains 1 Barn. & Aid. 473. Smith v. Over- 
Y. People, 60 N. Y. 221, 19 Am. Rep. seers of Seghill, L. R. 10 Q. B. 422, 
158, and Chatard v. O'Domovan, 80 seems to be contra, however, to the 
Ind. 20, 41 Am. Rep. 782. See, also, effect that the master's requirement 
Higginbotham v. Higginbotham, 41 that the servant reside in a house be- 
Ky. (10 B. Hon.) 371. , longing to the master does not make 

107 Hughes V. Overseers of Chat- his occupation that of a servant if 
ham, 5 Man. & G. 55; Marsh v. it does not conduce to the better dis- 
Estcourt, 24 Q. B. Div. 147. charge of his duties. 

108 Clark v. Overseers of St. Mary, "o Hughes v. Chatham, 5 Man. & G. 
1 C. B. (N. S.) 23; Fox v. Dalby, L. 54, 79; Bertie v. Beaumont, 16 Bast, 
R. 10 C. P. 285. 33. 

io« Dobson V. Jones, 5 Man. & G. m Mayhew v. Suttle, 4 El. & Bl. 
112; Pox V. Dalby, L. R. 10 C. P. 347, afd. 24 Law J. Q. B. 54. 



§ 48 MASTER AND SERVANT. 333 

well as of the fact that the employee is permitted to carry on his 
own business on the premises.!^* The English cases do not 
clearly state whether, in any case, the occupation would be re- 
garded as that of a servant because necessary to the better dis- 
charge of the servant's duties, when it is not required by the mas- 
ter but is left to the servant's option, though there are sugges- 
tions to the effect that it would be so regarded in such a case.^i^ 
One who is required to occupy a vacant house of the employer at 
a stipulated rent, to be deducted from his wages, not because this 
is necessary to the better discharge of his duties, but because the 
employer wishes to get rent for the house, or merely because the 
employer arbitrarily so elects, has been decided to occupy not as 
servant but as tenant.^i* 

In this country the decisions have not ordinarily followed any 
fixed rule in this regard. Sometimes it is asserted, as in England, 
that the occupation is that of a servant if it is incidental to the 
employment or connected with the service,!^^ and there is at least 
one decision to the efl'ect that such is the case if the occupation 
is required by the master for the better performance of the ser- 
vice.118 And, as in England, the fact that the right to occupy the 
house has the effect of lowering the wages paid does not neces- 
sarily render the occupation that of a tenant,"'^ though it has 
been said that this tends to show the existence of a tenancy.i^s 

112 White V. Bayley, 10 C. B. (N. 80 Vt. 273, 67 Atl. 722, 12 L. R. A. 
S.) 227. See Cass County Sup'rs v. (N. S.) 655. That the janitor o£ 
Cowgill, 97 Mich. 448, 56 N. W. 849. an apartment house occupying a 

113 See Fox v. Dalby, L. R. 10 G. P. room therein is not a tenant, see 
285 opinions of Coleridge, C. J., and Tucker v. Burt, 152 Mich. 68, 115 N. 
Brett, J. * W. 722, 17 L. R. A. (N. S.) 510. 

114 Smith v. Overseers of Seghill, L.. "« Kerrains v. People, 60 N. Y. 221, 
R. 10 Q. B. 422. But there «eems 19 Am. Rep. 158. 

some conflict between this case and ht Bowman v. Bradley, 151 Pa. 

others. See ante, note 109. 351, 24 Atl. 1062, 17 L. R. A. 213; 

115 Kerrains v. People, 60 N. T. 221, Heffelfinger v. Fulton, 25 Ind. App. 
19 Am. Rep. 158; Bowman v. Brad- 33, 56 N. B. 688. See Massachusetts 
ley, 151 Pa. 351, 24 Atl. 1062, 17 L. General Hospital v. Inhabitants of 
R. A. 213; Chatard v. O'Donovan, 80 Somerville, 101 Mass. 319. 

Ind. 20, 41 Am. Rep. 782; Llghtbody "s McGee v. Gibson, 40 Ky. (1 B. 

Y. Truelsen, 39 Minn. 310, 40 N. W. Mon.) 105; Ofschlager v. Surbecfc, 

67; MeadT.'pollock, 99 111. App. 151; 22 Misc. 595, 50 N. Y. Supp. 862; 

Womach v. Jenkins, 128 Mo. App. Overseers of Poor of Milton 

408, 107 S. W. 423; Mead v. Owen, v. Overseers of Poor of West Chillis. 



334 TENANCY ACCOMPANYING OTHER RELATION. § 43 

The decisions rather tend, however, to determine each case upon 
its own circumstances, by a consideration of whether the master 
retains control of the premises occupied by the servant, and in the 
majority of the cases the occupation is regarded as that of a serv- 
ant and not of a tenant. There seems, indeed, according to a 
number of cases, to be a presumption that the occupation by a 
servant is in that capacity, in the absence of any showing of a 
distinct demise,ii9 and that seems to be a logical view of the mat- 
ter so far as he has any duties in connection with the particular 
premises in reference to which the question arises, or in connec- 
tion with land of which such premises form a part. 

It has ordinarily been decided that a farm laborer occupying a 
house on the farm does so as servant and not as tenantj^^o and the 
same view has been taken of a teacher occupying part of the school 
building,! 21 and a domestic servant occupying rooms in or near 

quaque, 9 Pa. Super. Ct. 204, 43 trary is shown, makes the occupa- 

Wkly. Notes Cas. 452, tion of a servant that of a tenant 

113 Davis v. Williams, 130 Ala. SSO, at will. This assumption seems to 

30 So. 488, 54 L. R. A. 749, 89 Am. be based, on another assumption, 

St. Rep. 55; State v. Curtis, 20 N. C. which is incorrect, that a servant is 

(4 Dev. & B. Law) 363; Higgin- ordinarily in possession of land 

botham v. Hlgginbotham, 49 Ky. (10 which he is occupying in his minis- 

B. Mon.) 371; School Dist. No. 11 v. terial character. See ante, § 9. 

Bateche, 106 Mich. 330, 64 N. W. 120 Haywood v. Miller, 3 Hill (N. 

196, 29 L. R. A. 576; McQuade v. Y.) 90; People v. Annis, 45 Barb. 

Emmons, 38 N. J. Law, 397. (N. Y.) 304; Bowman v. Bradley, 

"To create the relation of landlord 151 Pa. 351, 24 Atl. 1062, 17 L. R. A. 

and tenant, no particular words are 213; Heffelfinger v. Fulton, 25 Ind. 

necessary, but it Is indispensable App. 33, 56 N. E. 688; Edgar v. 

that it should appear to have been Jewell, 34 N. J. Law, 259; Mead v. 

the intention of one party to dis- Owen, 80 Vt.* 273, 67 Atl. 722, 17 L. 

possess himself of the premises, and R. A. (N. S.) 510. But in State v. 

of the other to enter and occupy as Smith, 100 N. C. 466, 6 S. E. 84, and 

the former himself had the right to Ofschlager v. Surbeck, 22 Misc. 595, 

do, pursuant to the agreement be- 50 N. Y. Supp. 862, it was held that 

tween them." Per Stites, J., in a farm laborer was the tenant of 

"Walker v. Morgan, 57 Ky. (18 B. the house which he was allowed to 

Mon.) 136. occupy. And see Oould v. Eagle 

In Grosvenor v. Henry, 27 Iowa, Creek School Dist, 8 Minn. 427 (Gil. 

269, it is assumed that the local 382). 

statutory provision that any person 121 Walker v. Morgan, 57 Ky. (IS 

in possession of real property, with B. Mon.) 136; School Dist. No. 11 

the assent of the owner, is presumed v. Batsche, 106 Mich. 330, 64 N. W. 

to be a tenant at will unless the con- 196, 29 L. R. A. 576. 



§48 



MASTER AND SERVANT. 



335 



the house.122 it would seem clear that a person who is put in 
possession of premises merely for the purpose of looking after 
them on behalf of another is there as his servant and not as a 
tenant.123 

There are occasional decisions to the effect that a clergyman 

occupying a parsonage is a servant rather than a tenant.i^* But 

the circumstances may no doubt be such as to render him a 
tenant.125 



122 State V. CurUs, ao N. C. (4 
Dev. & B. Law) 363; Watson v Mc- 
Bachin, 47 N. C. (2 Jones Law) 207. 
See dicta in Kerrains v. People, 60 
N. Y. 221, 19 Am. Rep. 158; Cliatard 
T. (TDonovan, 80 Ind. 20, 41 Am. 
Rep. 782; McQuade v. Emmons, 38 
N. J. Law, 397. 

123 It is so decided in Mitchell v. 
Davis, 20 Cal. 45; Todhunter v. Arm- 
strong (Cal.) 53 Pac. 446; Zinnel 
v. BergdoU, 9 Pa. Super. Ct. 522, 44 
Wkly. Notes Cas. 54; Seymour v. 
Warren, 86 App. Div. 403, 83 N. Y. 
Supp. 871; Reeder v. Bell, 70 Ky. (7, 
Bush) 255. 

In Farrow's Heirs v. Edmundson, 
43 Ky. (4 B. Mon.) 605, 41 Am. Dec. 
250, it is said that if one takes pos- 
session of land as agent, the rela- 
tion of landlord and tenant is there' 
by established. This, however, was 
merely for the purpose of asserting 
the preclusion of the agent to deny 
the title of the principal, and that 
preclusion exists in any case of an 
agent who is given possession as 
such. See Clark & Skyles, Agency, § 
430 et seq. 

124 East Norway Lake Church v. 
Froislie, 37 Minn. 447, 36 N. W. 260. 
So in Chatard v. O'Donovan, 80 Ind. 
20, 41 Am. Rep. 782, it was decided 
that where a Roman Catholic priest 
occupied a parsonage belonging to 
the diocese and standing in the 
name of the bishop, his occupation 



was analogous to that of a" servant 
and not that of a tenant. 

125 In Bristor v. Burr, 120 N. Y. 
427, 24 N. E 937, 8 L. R. A. 710, it 
was decided that one occupying a 
parsonage attached to a church of 
which he was placed in charge by 
the general conference of that de- 
nomination was in possiession as 
tenant and not as a servant, the 
court saying that, since he was not 
hired by that particular church as- 
sociation but by the conference, he 
could not be in as a servant. The 
opinion proceeds: "There appears 
to have been nothing, so far as ap- 
pears in the circumstances under 
which he went into the house or in 
his relation to the church or its trus- 
tees, which so qualified his occu- 
pancy as to render it otherwise than 
possession by him. This is pre- 
sumptively the relation assumed to 
premises by a party who lawfully 
enters upon them as a place of 
abode and occupies them as such; 
and any less right than that which 
possession furnishes is dependent 
upon some understanding, express 
or implied, denying such relation," 
and then it is said that no such 
understanding appeared in that case. 

In Doe d. Jones v. Jones, 10 Barn. 
& C. 718; Doe d. NichoU v. McKaeg, 
10 Barn. & C. 721; Perry v. Ship- 
way, 1 Giff. 1, it is isaid that a dis- 
senting minister is "merely a ten- 



336 TENANCY ACCOMPANYING OTHER RELATION. § 4g 

The question whether the employee is upon the premises as such 
or as a tenant has sometimes arisen in connection with the right 
of the master to repossess himself of the premises occupied by 
the servant immediately upon the termination of the service, with- 
out notice to quit, and that he may do so when the occupation is 
merely that of a servant has been reeognized.i^^ There are occa- 
sional statements to the effect that if the servant does not relin- 
quish possession upon the termination of his service, he thereupon 
becomes a tenant at will or at sufferance,^ ^'^ but it is not per- 
ceived how this can be the case, since a tenancy at will arises only 
when the holding is by consent of the owner, and a tenancy at 
sufferance arises only when one who is in rightful and exclusive 
possession retains possession after his right to do so has come to 
an end,i2* a state of facts which does not occur in the case of a 
mere servant who wrongly refuses to withdraw, since he had at 
no time the legal possession but was merely on the premises as 
representative of his master. A servant who thus excludes his 
master from the possession is, it is submitted, a disseisor, to the 
same extent as if he had originally gone on the land without per- 
mission and excluded the ov»Tier therefrom. That he is not a ten- 
ant at will" under the trustees of 396, 4 Pac. 869, it was held that 
the chapel and parsonage. There where a contract provided for the 
was no contention that he was in rendition of services for eight 
occupation as servant only. months, and that during such eight 

126 Bowman v. Bradley, 151 Pa. months, and for four months after 
351, 24 Atl. 1062, 17 L. R. A. 213; such eight months the employee 
Clark V. Vannort, 78 Md. 216, 27 should occupy a house belonging 
Atl. 982; Chatard v. O'Donovan, 80 to the employer, the employee was, 
Ind. 20, 41 Am. Rep. 782. during such four months, in pos- 

127 People V. Annis, 45 Barb. (N. session as tenant and not as servant. 
Y.) 304; School Dist. No. 11 v. 12s See ante, § 15 a. In School 
Batsche, 106 Mich. 330, 64 N. "W. 196, Dist. v. Batsche, 106 Mich. 330, 64 
29 L. R. A. 576. And see Huggins N. W. 196, 29 L. R. A. 576, supra, it 
V. Bridges, 29 Pa. Super. Ct. 82. is said that "a person in possession 
But, in regard to this. It may be of land lawfully, who holds over 
said that, even concedlUg that one without right, becomes a tenant at 
may be in possession of land with- sufferance, if the owner suffers him 
out being a tenant thereof (ante, § to remain in possession a sufficient 
2), it does not seem to be applicable length of time to imply an inten- 
to the case of a servant, since he has tlonal acquiescence in the occu- 
not the legal possession. See ante, pancy, and it is mot necessary that 
§ 9. the previous holding be that of a 

In Snedaker v. Powell, 32 Kan. tenant." 



§ 48 MASTER AND SERVANT. 337 

ant because he. holds over after the termination of his employ- 
ment is recognized in several cases,i29 it being said, however, that, 
if he is permitted to remain in occupation without disturbance for 
some considerable time, the owner 's consent to his occupancy may 
be presumed and that he may then be regarded as a tenant at 
will. It does not seem, however, that such a presumption should 
be recognized, since ordinarily the failure to eject a trespasser can- 
not be regarded as creating a tenancy, and a Servant so holding 
over without right is in no better position than a trespasser .i^*' 

123 East Norway Lake Church v. was fixed by the agreement. The 
Froislie, 37 Minn. 447, 35 N. W. 260; court, however, speaks of him as 
Kerrains v. People, 60 N. Y. 221, 19 tenant and supports summary pro- 
Am. Rep. 158; Doyle v. Gibhs, 6 ceedings against him. But com- 
Lans. (N. Y.) 180; Jennings v. Mc- pare McQuade v. Emmons, 38 N. J. 
Carthy, 40 N. Y. St. Rep. 678, 16 Law, 397, according to which such 
N. Y. Supp. 161. occupant would seem prima facie 

In Morris Canal & Banking Co. v. not to be a tenant. 
Mitchell, 31 N. J. Law, 99, it was iso it is so decided in Doyle v. 
held that a "lock tender" on a canal, Gibbs, 6 Lans. (N. Y.) 180. In 
given, as part compensation for his Jennings v. McCarthy, 40 N. Y. St. 
services, the right to occupy a dwel- Rep. 678, 16 N. Y. Supp. 161, it was 
ling house with its garden until dis- regarded as a question for the jury 
charge, and no longer, was not en- whether such delay in expelling the 
titled to notice, since the time of employe showed a tenancy, 
the termination of his occupancy 



L. and Ten. 22. 



CHAPTER V. 

COVENANTS AND OTHER CONTRACTS. 

S 49. General considerations. 

50. Express and implied covenants. 

51. Dependent and independent covenants. 

52. Joint and several covenants. 

53. Execution of instrument containing covenant. 

a. Execution by lessor. 

b. Execution by lessee. 

c. Execution in duplicate. 

54. Invalidity of lease. 

55. Effect of death. 

a. Of covenantor. 

b. Of covenantee. 

56. Covenants with agent. 

a. Under seal. 

a. Not under seal. 

c. "With unauthorized agent. 

57. Covenants by agent. 

a. Under seal. 

b. Not under seal. 

58. Construction of covenants. 

a. General rules. 

b. Aider by oral evidence. 

59. Discharge of liability. 

60. Remedy for breach of covenant. 

61. Oral contracts in connection with written lease. 

§ 49. General considerations. 

The legal act by which the relation of landlord and tenant is 
created, the demise or lease, is, as we have before stated,^ a con- 
veyance vesting an estate in the tenant, and not a contract im- 
posing a personal obligation on either party. Almost invariably, 

1 See ante, § 16. 



§ 49 COVENANTS AND OTHER CONTRACTS. 339 

however, the making of the conveyance is accompanied by the 
making of one or more contractual stipulations by one or both 
of the parties to the conveyance.^* If the conveyance is incorpor- 
ated in a written instrument, as it must be, by reason of the stat- 
ute of frauds, if the estate conveyed is above a certain quantum 
as regards duration,^ the accompanying contractual stipulations 
are ordinarily inserted in the same instrument, and, as we have 
before remarked,* the instrument as a whole is referred to as a 
"lease," an expression which is also applied to the whole trans- 
action considered as a legal act, or aggregate of legal acts, apart 
from their incorporation in any written instrument. Contrac- 
tual stipulations entered into by the lessor or lessee, or both, thus 
evidenced by a written "lease," are ordinarily termed the "cov- 
enants of the lease," though the word "covenant" is, at common 
law, properly applicable to such stipulations only if the writing is 
under the seal of the person bound thereby. It is, no doubt, in 
part owing to the fact that these contractual stipulations are thus 
ordinarily incorporated in the same instrument as the demise it- 
self, that courts so frequently use the expression "contract of 
lease, ' ' losing sight of the fact that the relation of tenancy is cre- 
ated, not by a contract, but by the conveyance, by one person to 
another, of an estate less in quantum than that of grantor. If the 
conveyance by which the tenancy is created is oral, the accom- 
panying contractual stipulations would ordinarily be oral.* 

The possible subjects of such contractual stipulations, entered 
into at the time of the creation of a tenancy, are innumerable. 
Various examples of such stipulations will be found in subsequent 
chapters in which is discussed the effect, on such stipulations, of 
a transfer of the reversion or of the leasehold.^ A contract by 
the lessee to pay rent is, in this country, almost universal,^ and 
among other contracts of frequent occurrence are those in regard 

la A cestui que trust to whose 2 See ante, § 25. 

trustee a lease has been made Is not s See ante, § 16. 

liable upon the covenants to be per * That an oral demise may thus be 

formed by the lessee, there being no accompanied by contractual stipu- 

prlvity between him and the lessor, lations, see Bolton v. Tomlin, 5 Adol. 

Ramage v. Womach [1900] 1 Q. B. & E. 856. 

116; Cox v. Bishop, 8 De Gex, M. & = See post, chapters XIV, XV. 

G. 815. 'See post, § 171. 



340 COVENANTS AND OTHER CONTRACTS. | 5q 

to the mode of using the premises,'^ to make improvements,^ to 
insure,^ to pay taxes/" and to renew the lease.^^ 

We will, in this chapter, consider various questions which may 
arise in connection with such contracts entered into by the parties 
to a demise, at the time of and as incident to the making of the 
demise. We will ordinarily use the word "covenant" as descrip- 
tive of such a contract, if incorporated in a written instrument, 
without reference to whether such instrument is or is not under 
seal, this according with ordinary usage in this country. 

§ 50. Express and implied covenants. 

We not infrequently meet with the expression "implied cove- 
nants" as distinguished from "express covenants." "Implied 
covenant ' ' may mean one of two things. It may, firstly, mean the 
same as "covenant in law," which latter expression has been de- 
fined as follows: "A covenant in law, properly speaking, is^an 
agreement which the law infers or implies from the use of cer- 
tain words having a known legal operation in the creation of an 
estate; so that, after they have had their primary operation in 
creating the estate, the law gives them a secondary force, by im- 
plying an agreement on the part of the grantor to protect and 
preserve the estate so by those words already created ; as, if a man 
by deed demise land for years, covenant lies upon the word 'de- 
mise,' which imports, or makes, a covenant in law for quiet en- 
joyment ; or, if he grant land by feoffment, covenant will lie upon 
the word 'dedi'."i2 

As we shall see later,!^ a covenant in law for quiet enjoyment 
arises, in most jurisdictions, as a result of the relation of land- 
lord and tenant, without reference to the use of the word "de- 
mise" or any other particular words of leasing, and it seems that 
there is also implied from the relation, in the case of agricultural 
land, a covenant by the lessee that he will manage and cultivate 
the land in a husbandlike manner.^* 

The second sense in which the expression "implied covenant" 
is used is that of a covenant not clearly expressed on the face of 

7 See post, § 123. 12 Williams v. Burrell, 1 C. B. 402, 

8 See post, § 87 e. per Tindal, C. J. 

9 See post, § 145. is See post, § 79 a. 

10 See post, § 143. "See post, § 119 a (1). 

11 See post, chapter XXII. 



§ 50 EXPRESS AND IMPLIED COVENANTS. 341 

the instrument, but inferred from language used therein, ordinar- 
ily in connection with other covenants. A covenant thus inferred 
from the language used is, however, properly speaking, an express 
covenant, however obscurely the parties may have expressed their 
intention in this regard. As remarked in the case from which we 
have quoted above, "in every case, it is always matter of con- 
struction to discover what is the sense and meaning of the words 
employed by the parties in the deed. In some cases, that mean- 
ing is more clearly expressed, and therefore more easily discov- 
ered; ia others, it is expressed with more obscurity, and discov- 
ered with greater difficulty. In some cases it is discovered from 
one single clause ; in others, it is only to be made out by the com- 
parison of different and perhaps distant parts of the same instru- 
ment. But, after the intention and meaning of the parties is once 
ascertained, after the agreement is once inferred from the words 
employed in the instrument, all difficulty which has been encount- 
ered in arriving at such meaning is to be entirely disregarded." 
Examples of covenants thus existing by way of inference rather 
than by explicit statement may be given as follows : A lessee hav- 
ing covenanted that he would, at all seasons of burning lime, sup- 
ply the lessor with lime at a stipulated price, a covenant was ' ' im- 
plied" or rather "inferred" that he would burn lime at such 
seasons.is And a covenant by the lessee to "pen or fold his flock 
of sheep, which he shall keep upon the said demised premises, 
upon such parts where the same have been usually folded," was 
held to require him to keep a flock of sheep.^^ So a recital^^ or 
an exception^* may constitute a covenant, provided there can be 
"implied" from it an agreement that a thing shall be done or not 
done. But from a stipulation that the lessee shall enjoy "all privi- 
leges" enjoyed by the outgoing tenant, covenants by the lessee 
similar to those in the lease to the outgoing tenant are not to be 
inferred.^^ 

There are authorities to the effect that the words "yielding and 
rendering" a certain rent are to be regarded as giving rise to an 
"implied covenant" on the part of the lessee to pay such rent. 

15 Shrewsbury v. Gould, 2 Barn. & C. 505; Farrall v. Hilditch, 5 C. B. 
Aid. 487. (N. S.) 840. 

16 Webb V. Plummer, 2 Barn. & is St. Albans v. Ellis, 16 Blast, 352, 
Aid. 746. iflOmbony v. Jones, 19 N. Y. 234. 

17 Sampson v. Easterby, 9 Barn. & 



342 COVENANTS AND OTHER CONTRACTS. § 51 

If by this is meant that such words give rise to a covenant "in 
law" rather than an express covenant, a covenant "in fact," the 
correctness of the statement is open to question. The matter is 
discussed in a subsequent chapter. 2" 

§ 51. Dependent and independent covenants. 

Covenants and other contracts entered into on the part of the 
lessor and lessee may be dependent or independent. If one party 
may assert the nonperformance by the other of some covenant 
entered into by the latter, without having himself performed a 
covenant on his own part to be performed, the covenants are in- 
dependent, while if he cannot assert such nonperformance by the 
other unless he has himself performed, the covenants are de- 
pendent. The question whether covenants, or any contractual 
stipulations, are dependent or independent is, as between a lessor 
and lessee, as in any other connection, a question of the intention 
of the parties as collected from the language used by them.^i The 
modern tendency, it is said, in reference to contracts generally, 
is to construe promises as dependent on each other when they 
form the whole consideration for each other,22 but this criterion 
would seem to be inapplicable to covenants in leases, since the 
making of the demise itself, that is, the grant of an estate in the 
land, ordinarily enters into the consideration.^^ Such covenants 
call rather for the application of the rule that where a covenant 
goes only to a part of the consideration on both sides, and a breach 
of such covenant may be paid for in damages, it is an independent 
covenant.24 Such covenants might also call for the application of 
the asserted rule that covenants are to be treated as independent 
rather than as conditions precedent, especially where some benefit 
has been derived by the covenantor.^s 

In accordance, it would seem, with the rules just referred to, the 

20 See post, § 171 b. a; notes to Pordage v. Cole, 1 Wms. 

21 See Porter v. Shephard, 6 Term. Saund. 520 b; Carpenter v. Creswell, 
R. 668, per Kenyon, C. J.; Roberts v. 4 Bing. 409. See Palmer v. Meriden 
Brett, 11 H. L. Cas. 354, per Chelms- Brittannia Co., 188 111. 508, 59 N. B. 
ford. 247; Butler v. Manny, 53 Mo. 497; 

22Hammon, Contracts, p. 905. Lewis v. Chisholm, 68 Ga. 40. 

23 See Palmer t. Meriden Brit- 25 Newison v. Smythies, 3 Hurl. & 
annia Co., 188 111. 508, 59 N, E. 247. N. 840. 

24 Boone v. Eyre, 1 H. Bl. 273, note 



§ 51 DEPENDENT AND INDEPENDENT COVENANTS. 343 

covenants of a lease have not usually been regarded as depend- 
ent. Thus a covenant by the lessee to pay rent and one by the 
lessor to make repairs are, it has been decided, independent, and 
consequently the lessor's failure to repair as agreed is no defense 
to a claim for the rent.^e and the failure of the lessor to perform 
his covenant to make a particular improvement is no defense to 
an action by him for the lessee's breach of his covenant to make 
improvements or to pay taxes.^T It has also been decided that 
the covenant for rent and that for quiet enjoyment are not so 
dependent that the lessee cannot sue for breach of the latter cove- 
nant unless he has complied with the f ormer,^* and a like view has 
been taken as regards the covenant for quiet enjoyment and the 
lessee's covenant to repair.^f The fact that a covenant by the 
lessor is phrased "the covenants by the lessee being performed, 
the lessor covenants," or similar language is used, does not make 
the covenants dependent.^" The decisions upon the question 
whether the covenant to pay rent and various covenants on the 
part of the landlord are so interdependent as to enable the tenant 
to assert a breach of the latter in defense to an action for rent are 
considered in a subsequent part of this work.^o" 

Even though covenants are dependent, the performance of 
one, as a condition precedent to the assertion of the nonperform- 
ance of the other, may, it seems, be dispensed with by any action 
of the person entitled to the prior performance of the covenant 
in his favor which renders such performance impossible,*^ and it 
has been asserted that one party may waive the right to prior per- 
formance of the covenant in his favor by previous repudiation of 
the covenant on his part to be performed,*^ as he may by accept- 
ance of the performance of a substantial part of the covenant by 

2«See post, § 182 n (2). si See Indianapolis Natural Gas 

27 Handschy v. Sutton, 28 Ind. 159. Co. v. Spaugh, 17 Ind. App. 673, 4S 

28 Dawson v. Dyer, 5 Barn. & Adol. N. E. 691, where the lessor was to 
584; Edge v. Boileau, 16 Q. B. Div. locate the boundaries of a tract ex- 
117. cepted from the lease, and it was 

2» Edge V. Boileau, 16 Q. B. Div. held that the lessee's refusal to per- 

117. mit him to locate them excused him 

30 Butler v. Manny, 52 Mo. 497; from so doing. 

Edge V. Boileau, 16 Q. B. DiT. 117. 32 Warner v. Cochrane, 63 C. C. A. 

3oa See post, I 182 r. 207, 128 Fed. 553. 



344 COVENANTS AND OTHER CONTRACTS. § 52 

the other party (^•^ or by any course of action indicating an inten- 
tion not to insist upon the prior performance of such covenant.^* 

§ 52. Joint and several covenants. 

A covenant in a lease may, in case there is more than one lessor 
or more than one lessee, be either (1) joint, (2) several, or (3) 
joint and several. A covenant is joint as to the covenantors if 
the various covenantors are jointly bound, and in such case they 
must be sued jointly. A covenant is joint as to the covenantees 
if the various covenantees are jointly entitled to enforce per- 
formance, and in such case they must sue jointly. A covenant is 
several as to the covenantors if they are separately liable, and in 
such case they must be sued separately. A covenant is several 
as to the covenantees if they are separately entitled to demand 
performance, and in such case each may sue separately. A cove- 
nant is joint and several if the promisors are both jointly and 
severally liable, and in such case they may be sued jointly or 
separately. A covenant is never joint and several as to the cove- 
nantees. It must be either joint or several as regards them.^^ 

The question whether two or more covenantors are jointly lia- 
ble, or severally liable, or jointly and severally liable, is deter- 
mined by a construction of the covenant as showing the intention. 
In the absence of anything to show a contrary intention, as when 
the parties merely covenant, without more, the liability is joint,^^* 
and accordingly it was decided that the liability of the lessees 
on their covenants was joint when the lease was to them as ten- 
ants in comraonss*" as well as when to them as joint tenants.^^" It 
was even held that a covenant by the lessee and a surety that they 
would pay the rent and further that the lessee would repair was 

33 Palmer V. Merlden Britannia Co., seq.; Leake, Contracts, (3d Ed.) 371 

188 111. 508, 59 N. E. 247; Wiley v. et seq.; Hammon, Contracts, 756 et 

Inhabitants of Athol, 150 Mass. 426, seq. 

23 N. E. 311, 6 L,. R. A. 342. See ssa White v. Tyndall, 13 App. Cas. 

Leake, Contracts, (3d Ed.) 578; 263; Hammon, Contracts, 769, n. 185; 

Clark, Contracts, 677; Hammon, piatt. Covenants, 117. 

Contracts, 923. 35b white v. Tyndall, 13 App. Cas. 

3* See cases referred to in 9 Cyclo- 263. 

pedia Law & Proc. p. 646. ssc Levy v. Sale, 37 Law T. (N. S.) 

35 See Piatt, Covenants, 115 et 709. 



§ 53 EXECUTION OF INSTRUMENT. 345 

joint as to the repair as well as to the rent-^sa So it has been held 
that where the lessee and his sureties covenant to pay the rent, 
the sureties cannot be sued alone.35« On the other hand, if the 
language used purports to bind the covenantors "severally," the 
liability is several only, while if it purports to bind them jointly 
and severally, or to bind them and each of them, the liability is 
both joint and several.^^* 

The question whether two or more covenantees are jointly or 
severally entitled to sue for nonperformance is ordinarily to be 
determined by the consideration whether the interest of the par- 
ties is joint or several, provided such construction is not incon- 
sistent with the language used-^ss Accordingly, if tenants in com- 
mon join in making a lease, reserving an entire rent, they must 
join in suing on the covenant for rent, while if they lease their re- 
spective shares with separate reservations of rent, they must sue 
separately .35'' Upon a covenant to repair or to make improve- 
ments, the lessors who joined in the lease must, it seems, sue 
jointly, since the covenant is such as to give the covenantees a 
joint interest in the performance.^^' The interest of the cove- 
nantees is joint, it is said, if a breach as to one is necessarily a 
breach as to all, and several, if a breach as to one is not necessarily 
a breach as to all.^^J 

§ 53. Execution of instrument containing covenant. 

a. Execution by lessor. A paper purporting to be an instru- 
ment of lease, which the proposed lessor fails to sign, is, even 
apart from any statutory requirement of a signed writing for the 

35d Copland v. Laporte, 3 Adol. &E. Aid. 850; Wilkinson v. Hall, 1 Bing. 

517. N. C. 717; Lahy v. Holland, 8 Gill 

35e City of Philadelphia v. Reeves, (Md.) 445, 50 Am. Dec. 705. But 

48 Pa. 472. That they may be sued in Catlin v. Barnard, 1 Aiken (Vt.) 

jointly with the lessee, see Elkln v. 9, it was held that words of sev- 

Moore, 45 Ky. (6 B. Men.) 462. eralty, as well as separate interests 

35f Mathewson's Case, 5 Coke, 22 in the rent, were necessary to give 

b; Robinson v. Walker, 7 Mod. 154, a several right of action. 

1 Salk. 393; Northumberland v. Er- ssi Foley v. Addenbrooke, 4 Q. B. 

rington, 5 Term R. 522. 197; Thompson v. Hakewill, 19 C. B. 

3sg Leake, Contracts (3d Ed.) 380; (N. S.) 713; Calvert v. Bradley, 57 
Hammon, Contracts, 770; Sorsbie v. U. S. (16 How.) 580. See Brad- 
Park, 12 Mees. & W. 146. burne v. Botfleld, 14 Mees. & W. 573. 

35h Powis v. Smith, 5 Bam. & ssj Dicey, Parties, 114. 



346 COVENANTS AND OTHER CONTRACTS. § 53 

purpose, a legal nullity, for the purpose either of transferring an 
estate or creating a contractual obligation on the lessor, it being 
available only as an admission or to refresh the recollection of a 
witness as to the terms of an oral letting.^s It may happen, how- 
ever, that in such a paper are included stipulations to be performed 
by the lessee, and that, though not executed by the lessor, it is exe- 
cuted by the lessee, and the question then arises whether the lessee 
is in such case liable upon his stipulations. It has in England been 
decided that while ordinarily a covenantee, who is a party to 
Avhat purports to be an indenture, may sue the covenantor who 
executed it, though he himself did not execute, a different rule 
applies in the case of indenture of lease, and that the covenants 
therein which depend on the interest created by the lease and are 
made because it is intended to give the covenantor that interest, 
such as those to pay rent or repair, are not obligatory if the lessor 
does not execute, not because the lessor is not a party, but because 
that interest has not been created to which such covenants are an- 
nexed, and during which only they operate.^'^ "The foundation 
of the covenant failing, the covenant fails also. Unless there be 
a term, a covenant to repair during it is void. ' '^® But this princi- 
ple was not applied where there was a demise purporting to be 
by tenant for life and remainderman, ' ' according to their respec- 
tive estates and interests, ' ' and the tenant for life alone executed, 
it being held that the lessee, having entered into possession, was 
liable on his covenant to repair.^^ 

The Adew asserted in England, as above stated, that the lessee 
is not liable on certain classes of covenants if the lessor fails to 
execute, has been applied in this country as regards the covenant 
for rent,*" as well as a covenant to improve.*^ Occasionally the 

36 See ante, § 26. lock, 6 Pa. Super. Ct. 573, but the 

37 Soprani v. Skurro, Yel. 19; Pit- ground of distinction is expressed 
man v. Woodbury, 3 Exch. 4; Swat- with considerable obscurity. In 
man v. Ambler, 8 Exch. 72. Duffee v. Mansfield, 141 Pa. 507, 21 

38 Pitman v. Woodbury, 3 Exch. 4. Atl. 675, the omission of the lessor to 
30 How V. Greek, 3 Hurl. & C. 391. sign the lease was held not to re- 
40 Chesebrough v. Pingree, 72 Mich, lieve one who had under taken to be 

438, 40 N. W. 747, 1 L. R. A. 529; responsible for the performance of 

Nickolls V. Barnes, 32 Neb. 195, 49 the. lessee's covenants, the court say- 

N. W. 342; Jennings v. McComb, 112 ing: "We need not discuss the legal 

Pa. 518, 4 Atl. 812. The latter case effect of the omission of the lessor 

is distinguished in Schultz v. Bur- to sign the paper. It has no bear- 



§ 53 EXECUTION OF INSTRUMENT. 347 

'■■■ ■■ -t 

lessor's failure to execute has been regarded as not affecting the 
lessee 's liability on his covenants, the latter having taken posses- 
sion.*2 It -wrould seem that if the lessee does take possession in 
such a case, he would become a tenant at will or periodic tenant,*^ 
and as such might be liable upon the stipulations contained in 
the instrument of lease so far as they may be applicable to that 
character of tenancy .^^ And he would be liable for use and occu- 
pation prima facie at the rent named in the lease.*^ 

b. Execution by lessee. It has been asserted in a number of 
books of high authority that, by accepting the benefit of a convey- 
ance which was executed Amder seal by the grantor, one becomes 
bound by the covenants therein contained to the same extent as 
if he had actually signed and sealed it,*^ and this doctrine has 
been adopted in a few states.*'' It has, however, been vigorously 
questioned, and the old cases cited in its support shown to be in- 
sufScient for the purpose,*^ and there are occasional decisions in 
this country to the effect that one merely accepting a lease or 
other conveyance under the seal of the grantor does not become 
liable on the stipulations contained therein as if he had signed 
and sealed it.*" It is difficult, apart from authority, to see why the 

ing upon the case." As remarked in ment, while the lessee sealed it, does 

Kaier v. Leahy, 15 Pa. Co. Ct. R. 243, not involve such lack of "mutualty" 

"if such lease is sufficient to bind as to relieve the lessee from liability 

the surety, it should seem to need on his covenants. 

no argument to show that its provi- 43 See ante, § 25 g (1). 

sions would bind a tenant who has 44 See ante, § 25 g (2). 

enjoyed the term it creates." In *s see Nickolls v. Barnes, 32 Neb. 

view of this later case it might, it 195, 49 N. "W. 342; Jennings v. Mc- 

seems, be questioned whether Jen- Comb, 112 Pa. 518, 4 Atl. 812. 
nings V. Mc-Comb, supra, is still law 46 Sheppard's Touchstone, 177 ; 

in that state. Com. Dig., Covenant, A 1; Butler's 

41 Sigmund v. Newspaper Co., 82 note to Co. Litt. 230 b. See, also, 
111. App. 178. Burnett v. Lynch, 5 Barn. & C. 596. 

42Codman v. Hall, 91 Mass. (9 « Midland R. Co. v. Fisher, 125 
Allen) 335 (dictum) ; Evans v. Conk- Ind. 19, 24 N. E. 756, 1 Am. St. Rep. 
lin, 71 Hun, 536, 24 N. Y. Supp. 189; Finley v. Simpson, 22 N. J. Law 
1081; Browning v. Walbrun, 45 Mo. (2 Zab.) 311, 53 Am. Dec. 252; At- 
477; Oliver v. Alabama Gold Life lantic Dock Co. v. Leavitt, 54 N. Y. 
Ins. Co., 82 Ala. 417, 2 So. 445; Bow- 35, 13 Am. Rep. 556; Bowen v. Beck, 
man v. Powell, 127 111. App. 114. 94 N. Y. 86, 46 Am. Rep. 124. 
In Rice v. Brown, 81 Me. 56, 16 Atl. 48 See Piatt, Covenants, 10-15; 2 
334, it is decided that the fact that Piatt, Leases, 6. 
the lessor merely signed the instru- 49 Hinsdale v. Humphrey, 15 Conn. 



348 COVENANTS AND OTHER CONTRACTS. § 53 

sealing of an instrument by A should give it the effect of an in- 
strument sealed by B. It has never been suggested that the sign- 
ing of an instrument by A would give it the effect of an instru- 
ment signed by B, and the distinction in principle between the 
two cases is not plainly apparent. 

However questionable may be the Tiew that one accepting the 
benefit of a lease under the seal of the lessor alone becomes lia- 
ble on stipulations in the instrument as if it were under his seal, 
that is, in covenant, it seems clear that he thereby subjects himself 
to a liability in assumpsit,s° provided at least this is not precluded 
by any statutory requirement of a signed writing. That a lessee 
merely accepting a lease becomes liable upon a stipulation for the 
payment of rent has been several times decided,^^ and the same 
view has been occasionally asserted in connection with other stipu- 
lations.^ ^ The acceptance of the lease which, by indicating the 
lessee's assent to the stipulations therein on his part to be per- 
formed, makes them binding on him, is ordinarily shown by the 
taking of possession of the premises by the lessee,^^ but it can be 

431; Martin v. Drinan, 128 Mass. Co., 51 Ohio St. 40, 36 N. E. 672, 23 

515; Newell v. Hill, 43 Mass. (2 L. R. A. 396, 46 Am. St. Rep. 545. 

Mete.) 180; Burkhardt v. Yates, 161 si Trapnall v. Merrick, 21 Ark. 

Mass. 591, 37 N. E. 759 (dictum); 503; McParlane v. Williams, 107 111. 

Maule V. Weaver, 7 Pa. 329; Stab- 33; Doxey's Estate v. Service, 30 

ler V. Cowman, 7 Gill. & J. (Md.y Ind. App. 174, 65 N. E. 757; Elir- 

284; Western Maryland R. Co. v. mantraut v. Robinson, 52 Minn. 333, 

OrendorfC, 37 Md. 335; First Congre- 54 N. W. 188; Kabley v. Worcester 

gational Meeting-House Soc. v. Town Gaslight Co., 102 Mass. 392; Filton 

of Rochester, 66 Vt. 501, 29 Atl. 810; v. Hamilton City, 6 Nev. 196; Provi- 

Trustees of Hocking County v. Spen- dence Christian Union v. Eliott, 13 

cer, 7 Ohio (pt. 2) 149. R. I. 74; Weaver v. Southern Oregon 

50 See Georgia Southern R. Co. v. Co., 31 Or. 14, 48 Pac. 167. See Hins- 

Reeves, 64 Ga. 492; Newell v. Hill, 43 dale v. Humphrey, 15 Conn. 431. 

Mass. (2 Mete.) 180; Maine v. Cum- 52 Henderson v. Virden Coal Co., 

ston, 98 Mass. 317; Maynard v. 78 111. App. 437; West Virginia C. & 

Moore, 76 N. C. 158; Burbank v. P. R. Co. v. Mclntire, 44 W. Va. 210, 

Pillsbury, 48 N. H. 475, 97 Am. Dec. 28 S. E. 696; First Congregational 

633; Hagerty v. Lee, 54 N. J. Law, Meeting-House Soc. v. Town of 

580, 25 Atl. 319, 20 L. R. A. 631; Nat- Rochester, 66 Vt. 501, 29 Atl. 810. 

ural Gas Co. v. Philadelphia Co., 158 ss See Bonaparte v. Thayer, 95 Md. 

Pa. 317, 27 Atl. 951; First Congre- 548, 52 Atl. 496; Burkhardt v. Yates, 

gational Meeting House Soc. v. Town 161 Mass. 591, 37 N. E. 759; Carroll 

of Rochester, 66 Vt. 501, 29 Atl. 810; v. St. John's Catholic Total Abstin- 

Hickey v. Lake Shore & M. S. R. ence & Mut. Relief Soc, 125 Mass. 



§ 53 EXECUTION OF INSTRUMENT. 349 

shown in other ways, either by express language or by acts.^* 

It has been decided that if a lease is signed by one only of the 
two lessees, and the other 's acceptance thereof is in no way indi- 
cated, the lessees cannot sue on a covenant for quiet enjoyment 
contained in the instrument.^^ Presumably this means that the 
covenant, until accepted, constitutes an offer merely, and conse- 
quently gives no right of action as for a breach by reason of mat- 
ters occurring before the acceptance. 

The question might be raised, in the case of a lease for over a 
year, whether a stipulation binding the lessee to do something 
at any time during the term, as for instance, to make repairs, is 
not an agreement not to be performed within a year, within the 
fourth section of the statute of frauds, so as not to bind the lessee 
if not evidenced by writing signed by him. This provision of the 
statute would seem to be particularly applicable if the covenant 
is to do something at the end of such a term of over a year, as to 
return the premises in good condition.^s It is possible, however, 
that the fact that the lessor has executed the lease might be re- 
garded as bringing the case within the English doctrine, which, 
through the subject of severe and well considered criticism,^^ has 

565; Goldberg v. Wood, 45 Misc. 327, contract by the lessor not to sell in 

W N. y. Supp. 427. competition with the lessee during 

5* In Adams v. Doelger, 15 Misc. the term of one year created by 

140, 36 N. Y. Supp. 801, it was held the parol leasing was invalid within 

that an acceptance was not shown the section of the statute referred to, 

even by the giving of a check for one and furthermore that its invalidity 

month's rent, the Intention being invalidated the "entire lease." It 

that the lessee should sign in order does not seem that a conveyance 

to be bound. should be regarded as invalid merely 

65 Castro V. GafEey, 96 Cal. 421, 31 because a contract made by the 

Pac. 363. lessor at the time of the conveyance 

B6 In Brown v. Throop, 59 Conn. 596, is invalid or unenforcible. The 

22 Atl. 436, 13 L. R. A. 646, it was court fails to recognize that the 

held that a promise made by the lease is primarily a conveyance, 

lessee prior to the commencement In Hall v. Solomon, 61 Conn. 476, 

of the one year term to refill the 23 Atl. 876, 29 Am. St. Rep. 218, it 

ice house and leave it full at the end was held that a contract not to en- 

of the year was not within the stat- gage in a competing business was 

utory provision, since the season for not within the statute, although 

filling ice houses would fall within made in connection with a convey- 

the year. ance in fee, the theory being that 

In Higgins v. Gager, 65 Ark. 604, it might be performed within a year. 

47 S. W. 848, it was held that a " See 1 Smith's Leading Cases 



350 COVENANTS AND OTHER CONTRACTS. § 53 

been adopted in many states, that the performance of a contract 
within a year by one party thereto is suffi,cient to take it out of 
this provision of the statute, although performance by the other 
is not to take place till after a year ; though, on the other hand, it 
may well be doubted whether the doing of an act at the time o± 
the contract, in this case, the making of the lease, is performance 
within the year by the lessor, so as to validate the contract made 
by trie other party, in this case the lessee. In England it has been 
held that if the lease is for a short term, and is consequently valid, 
though not in writing, by force of the second section of the stat- 
ute, any oral stipulations made in connection therewith must be 
regarded as valid without reference to the fourth section.^''* This 
view has obviously no bearing upon the case of a lease not within 
the second section, and as the first section involves no requirement 
of signature by the lessee, the applicability of the second section, 
even in the case of a short time lease, to relieve the lessee from the 
obligations of the fourth section, might, it is conceived, apart from 
the above decision, be open to question. Any statements to the 
effect that a liability on the part of the lessee arising by reason 
of the acceptance of a lease is not within the statute of frauds 
because it is "implied by law"^* are, it is submitted, erroneous. 
_The liability is, it is conceived, on an express contract to the same 
extent as if the lessee had orally agreed to perform the stipula- 
tions enumerated in the lease, and the nature of the contract is 
not changed by the fact that his assent to the stipulations is shown 
by his act in accepting the lease and not by words.^** The view 
that a stipulation on the part of the lessee, performance of which 
within a year is not contemplated, is within this clause of the 
statute, would not interfere with the recovery of rent, since the 
stipulation for its payment may be construed as a reservation,^** 
rendering the lessee liable therefor by reason of privity of estate 
as distinct from privity of contract. 

The peculiar statutory provision which exists in some states, 

<8th Am. Ed.) 614, 624, notes to 319; Burkhardt v. Yates, 161 Mass. 
Peter v. Compton; Browne, Stat, of 591, 37 N. E. 759; Providence Chris- 
Frauds, § 166. tian Union v. Ellott, 13 R. I. 74. 

57a Bolton V. Tomlin, 5 Add. & E. ssaSee Keener, Quasi Contracts, 

856, followed in Clarke v. Serricks, 4; Pollock, Contracts (7th Ed.) 12. 

2 U. C. Q. B. 535. 59 See post, § 170, at note 100. 

'8 See Maine v. Cumston, 98 Mass. 



§ 54 INVALIDITY OF LEASE. 351 

that no action shall be brought on a lease not signed by the party 
to be charged,®" might, it seems, have the effect of preventing re- 
covery on any stipulations on the part of the lessee if he has failed 
to sign the instrument,®^ though, on the other hand, it might be 
considered that the word "lease" in such a statute was intended 
to apply only to the conveyance by way of lease, and not to the 
contractual stipulations of the parties.®^ In one state it appears 
to have been decided that one who has leased property orally can- 
not sue on the lessee 's oral agreement to pay rent, for the reason 
that the case is within the provision of the statute of frauds re- 
quiring a contract for the sale of lands, tenements or heredita- 
ments to be in writing.®* 

c. Execution in duplicate. There is in effect an instrument 
of lease signed by both the lessor and the lessee, if it is prepared 
in duplicate, and one duplicate is signed and delivered by the 
lessor and the other by the lessee.®* 

§ 54. Invalidity of lease. 

Reference has been previously made®^ to decisions that a cove- 
nant by the lessee is not valid if the instrument of lease is not 

60 See ante, § 25 b, note 349. at notes 354-358). The opinion 

61 In Wade v. City of New Bern, makes the briefest - possible ref er- 
77 N. C. 460, it was decided that a ence to the point. 

lessee was not liable under stipula- 6* Fields v. Brown, 188 111. Ill, 58 

tions in an instrument of lease not N. E. 977; Campau v. LafCerty, 43 

signed by him, in view of the stat- Mich. 429, 5 N. W. 648; Welsh v. 

lite making void leases and con- Ferd. Heim Brew. Co., 47 Mo. App. 

tracts for leasing lands "unless put 608; NIcoll v. Burke, 78 N. Y. 580; 

in writing and signed by the party Duncklee v. Webber, 151 Mass. 408, 

to be charged therewith." The 24 N. E. 1082; Hughes v. Clark, 10 C. 

character of the stipulation with B. 905; Houghton v. Koenig, 18 C. 

-which the lessee had failed to com- B. 235; 2 Blackst. Comm. 296. This 

ply does not appear from the report, is the usual method of executing 

the action being merely said to be leases in England. See Fawcett, 

one for "breach of contract." Landl. & Ten. (3d Ed.) 180. If 

62 See ante, § 49. the copy which was signed by the 

63 Mathews v. Carlton, 189 Mass. lessor was not delivered, its ex 
■285, 76 N. B. 637. As before stated, istence being unknown to the lessee, 
it would seem that this section of there is no valid lease. Chese- 
the statute is properly applicable to brough v. Pingree, 72 Mich. 438, 40 
an executory contract for a lease N. W. 747, 1 L. R. A. 529. 
rather than to a lease (ante, § 25 b, 6= See ante, § 53 a. 



352 COVENANTS AND OTHER CONTRACTS. | 55 

executed by the lessor, for the reason that the covenant is, as it 
were, conditioned on the passing of the interest with reference 
to which it is made. So it has been decided that if a conveyance 
by way of lease is void, as made for an illegal purpose, a covenant 
by the lessee to pay rent is void.^'' There are, moreover, occasional 
decisions apparently to the effect that a covenant for rent is not 
binding on the lessee until the lessor has delivered the lease, and 
the lessee has accepted it, although the instrument has been exe- 
cuted by the lessee.^^ And in one state it was decided that, if the 
instrument was not recorded, there could be no recovery on the 
covenant for rent, but assumpsit alone would lie.^* On the other 
hand, the fact that, in the case of a lease by a husband and wife, 
the latter failed to acknowledge the lease under the statute so as 
to make it binding on her after the husband 's death, was regarded 
as no defense to an action on the covenant for rent.®^ 

§ 55. Effect of death. 

a. Of covenantor. In accordance with the general rule that 
the executor or administrator is, to the extent of the assets of the 
estate, liable upon contracts entered into by his testator or intes- 
tate,™ the executor or administrator of a lessee is liable upon the 
covenants entered into by the lessee with the lessor to the extent 
of the assets. '^1 He may, moreover, in the case of covenants run- 

ee Jevons v. Harridge, 1 Sid. 308, 1 Daly (N. Y.) 226; Kelsey v. Tourte- 

Saund. 6; May v. Trye, Freem. 447. lotte, 59 Pa. 184. In neither of these 

In Knlpe v. Palmer, 2 Wills. 130, it cases is there a clear statement of 

was apparently decided to be a good the grounds of the decision, 

defense to an action on a covenant 88 Anderson v. Critcher, 11 Gill & 

by the lessee that the lessor plain- J. (Md.) 450, 37 Am. Dec. 72. See 

tiff was the committee of a lunatic, ante, § 32. 

without authority to lease, and a so Toler v. Slater, L. R. 3 Q. B. 42. 

plea of nil Tiabuit in tenementis was 702 Williams, Executors (9th Ed.) 

sustained. It does not seem, accord- 1593; Woerner, Administration, § 

ing to the authorities generally, that 328. 

such lack of title in the lessor should 'i Brett v. Cumberland, Cro. Jac. 

have constituted a sufficient defense, 521; Hellier v. Casbard, 1 Sid. 266; 

the lessee having entered and re- Anonymous, 3 Dyer, 324 a, pi. 34; 

tained possession under the lease. Buckley v. Pirk, 1 Salk. 316; Wil- 

See post, § 78 a, note 179. son v. Wigg, 10 East, 313; Wollaston 

67 Stetson V. Briggs, 114 Cal. 511, v. Hakewill, 3 Man. & G. 297; Green- 

46 Pac. 603; Witthaus v. Starin, 12 leaf v. Allen, 127 Mass. 248; Alsup 



§ 55 EPFE5CT OF DEATH. 353 

ning with the land, be subjected to liability as regards his own 
property, but that possible liability will be considered in another 
placeJ^ The executor or administrator of the deceased lessor is 
also liable upon the covenants entered into by the latter to the 
extent of the assets received by him,'^^ and may, in case the re- 
version passes to him, be further liable on such covenants as run 
with the landJ* 

The rule that the liability survives to the executor or adminis- 
trator is on principle applicable in the case of a covenant made by 
a grantee in fee to the same extent as in other cases, and it has 
accordingly been decided that he is so liable under a covenant for 
rent contained in a conveyance in fee, a "perpetual lease" as it is 
sometimes calledJ^ In Pennsylvania, however, it has been decided 
that the executor or administrator is not in such case bound to 
perform the covenant, on the ground that this would prevent any 
distribution of the decedent's estate, and, as all the lands of the 
decedent are assets for the payment of debts, would constructively 

V. Banks, 68 Miss. 664, 9 So. 895, that the liability of an executor is 

13 L. R. A. 598, 24 Am. St. Rep. 294; apart from any question of Inten- 

Knotts V. McGregor, 47 W. Va. 566, tlon, he being liable because he is 

35 S. E. 899. the personal representative of the 

"See post, § 158 a (2) (h). testator. "In every case, where the 

73 2 Piatt, Leases, 359; Fitzherb- testator is bound by a covenant, the 

ert's Natura Brevium, 145 (e), note executor shall be bound by it, if it 

(a); Macartney v. Blundell, 2 Ridgt be not determined by the death of 

P. C. 113; Chamberlain v. Dunlop, the testator." 2 Williams, Execu- 

126 N. Y. 45, 26 N. B. 966, 22 Am. St. tors (9th Ed.) 1629, citing Bro. Cov- 

jigp go7. enant, pi. 12; Com. Dig., Covenant 

In Kershaw v. Supplee, 1 Rawle (C 1). The cases stated in Wil- 

(Pa.) 131, it was decided that a liama' work on page 1630. (Thurse- 

covenant by a lessor with the lessee den v. Warthen, 2 Bulst. 158; Ma- 

"for himself and his heirs" to keep cartney v. Blundell, 2 Ridg. P. C. 

in repair a dam on an adjoining 113) are not in accord with the 

tract owned by him did not bind the Pennsylvania case. See, also, the 

lessor's executor to repair the dam, discussion in Chamberlain v. Dun- 

or render him liable to an action for l^P. 126 N. Y. 45, 26 N. B. 966, 22 

nonrepair, the theory being that the -^-m. St. Rep. 807. 

words of the covenant, and also the ''* See post, § 149 b. 

fact that the land containing the " Scott v. Lunt's Adm'r, 32 U. S. 

dam would pass to the heirs and not (7 Pet.) 596; Van Rensselaer's Bx'rs 

the executor, showed an intention to v. Platner's Bx'rs, 2 Johns. Cas. (N. 

bind the heirs and not the executor. Y.) 17. 
In reference to this it may be said 

L. and Ten. 23. 



354 COVENANTS AND OTHER CONTRACTS. X 55 

charge the rent of a single lot upon all his landsJ® The reason 
thus stated in one jurisdiction for relieving the estate of the de- 
ceased lessee from liability upon a perpetual ground rent cove- 
nant might as well be asserted, it would seem, in the case of a 
lease for a limited term, especially when the term is of consider- 
able length. In the case, for instance, of a term for ninety-nine 
years, or even for a much shorter period, as for twenty years, the 
inconvenience of deferring the settlement of the lessee's estate 
until the removal of all possible liability on account of the breach 
of his covenants is perfectly evident, and yet the executor or ad- 
ministrator cannot, so long as he may possibly be held liable on 
the covenants to the extent of the assets, be safe in undertaking 
to settle the estate by the payment of legacies. That such pay- 
ment is no defense to an action on the covenant of the lease has 
been clearly decided.^'' The difficulty suggested is not indeed 
peculiar to covenants in connection with leases, but may exist as 
well in the case of any contract calling for performance at some 
distant time or throughout a period of considerable duration, or 
under which liability is dependent on some future contingency. 
To protect the executor or administrator in such cases, the Eng- 
lish courts of equity established the rule that he would not be 
compelled to distribute the estate of a decedent to legatees or 
next of kin unless indemnified by them against any possible future 
liability, or unless a sufficient part of the residuary estate was im- 
pounded for the purpose of meeting any such liability.''^ It was 
also settled that if an executor, giving the court all the informa- 
tion possessed by him, acts under the order of the court in making 
distribution, he will be protected from liability.''^ The executor 
or administrator of a lessee is now in England protected by a 
statute,^" providing in effect that if he has sold the leasehold and 
has assigned the lease to the purchaser, and has set apart a fund 

TeQuain's Appeal, 22 Pa. 510; Wil- 'o Dean v. Allen, 20 Beav. 1; 

liams' Appeal, 47 Pa. 283. Knatchbull v. Fearnhead, 3 Mylne & 

TTSee Davis v. Blackwell, 9 Blng. C. 122; Smith v. Smith, 1 Drew. & 

5; Pearson v. Archdeaken, Ale. & N. S. 384; England v. Tredegar, L. R. 

23; Curtis v. Hunt, 1 Car. & P. 180. 1 Eq. 344; Bennett v. Lytton, 2 

78 Simmons v. Bolland, 3 Mer. Johns. & H. 155; 2 Williams, Execu- 

547; Vernon v. Egmont, 1 Bligh (N. tors (9th Ed.) 1204. 
R.) 554; Cochrane v. Robinson, 11 so 22 & 23 Vict. c. 35, § 27 (Lord St. 

Sim. 378; Fletcher v. Stevenson, 3 Leonard's Act). 
Hare, 360, 370. 



§ 55 EFFECT OF DEATH. 355 

sufficient to answer any future claim that may be made in respect 
of any fixed and ascertained sum agreed by the lessee to be laid 
out on the property, he may, without any order of court, distribute 
the assets without making any provision for future breaches of 
covenant, and shall not be subjected to any liability in respect 
thereof.** 

In this country there are in a number of states statutory provis- 
ions as to the presentation of "contingent claims" against the 
estate of a decedent, and the retention by the personal representa- 
tive of sufficient assets to meet such claims. A claim based on a 
covenant by the lessee to keep in repair during the term, or to 
perform other acts involving expenditures of an uncertain amount, 
would seem to be contingent within such a statute, and a covenant 
to pay rent might perhaps be so regarded, when the lessee or the 
lessee's executor has assigned the leasehold, the liability of the 
lessee's estate being in such case contingent upon the assignee's 
failure to perform the covenant.*^ 

In the case of a covenant by two or more persons, either les- 
sors, or lessees, the question whether upon the death of one of 
them his representative is bound thereby is determined, in the 
absence of statute, by the consideration whether the covenant is 
joint or several as to the covenantors.** If the covenant is joint, 
the estate of a deceased covenantor is not liable, but the burden 
rests upon the survivor or survivors alone.** In a number of juris- 
dictions, however, it is provided by statute that the estate of a de- 
ceased joint obligor shall be liable. If the covenant is several,*^ 
or joint and several,*® as regards the covenantors, the representa- 
tive of any one of them succeeds to his liability in case of his 
death, and this is the case even though the covenant is by lessee-s 
holding as joint tenants, and the entire interest in the leasehold 
is vested in the survivor.*^ 

A covenant "in law"** by the lessor, as for instance the cove- 
si See Dodson v. Sammell, 1 Drew. ss See White v. Tyndall, 13 App. 
& S. 575. Cas. 263. 

82 See 2 Woemer, Administration, se Bnys v. Donnithorne, 2 Burrow, 
§ 394. 1190; Burns v. Bryan, 12 App. Cas. 

S3 See ante, § 52. 384. 

84 Leake, Contracts (3d Ed.) 374; s? See cases cited in last preced- 
Hammon, Contracts, 761; White v. ing note. 
Tyndall, 13 App. Cas. 263. ss See ante, § 50. 



356 COVENANTS AND OTHER CONTRACTS. | 55 

iiant for quiet enjoyment implied from words of demise,^** will 
not, it is said, extend bej'-ond the estate in respect of which it is 
made, and it has on this theory been decided that if a tenant for 
life makes a lease and dies, his executor is not liable on the cove- 
nant, although the lessee is evicted by the remainderman.^" 

b. Of covenantee. Upon the death of the person in favor 
of whom the covenant is made, whether the lessor or the lessee, 
the right of action on account of any breach of the covenant which 
occurred in the lifetime of such covenantee passes to his personal 
representative.^! For any breach subsequent to the death of 
the covenantee, the right of action is in the person in whom the 
covenantee's interest in the land is vested at the time of such 
breach, that is, if the breach is of a covenant in favor of the lessee, 
his executor or administrator may sue on account of any breach 
committed before the term has passed out of him into a legatee or 
purchaser, and, if the covenant was in favor of the lessor, his heir 
or devisee, or, in ease the reversion is a chattel interest, his per- 
sonal representative, is the person entitled to sue for a breach as 
having succeeded to the reversionary interest of the decedent, 
provided the covenant was one which runs with the land.^^ If 
not such a covenant, the personal representative of the deceased 
covenantee could alone sue thereon. 

In case the covenant is in favor of two or more persons, whether 
lessors or lessees, the question whether the personal representa- 
tive of a deceased covenantee may sue thereon is ordinarily de- 
pendent on whether the covenant is joint or several. If it is joint 
as regards the covenantees, only the survivor or survivors or the 
personal representative of the last survivor can sue.^^ On the 
other hand, if the covenant is several, the personal representa- 
tive of any deceased covenantee is entitled to sue in respect of his 
separate interest."* In the case of covenants which run with the 

89 See post, § 79 a. Cromp. M. & R. 588 ; Ricketts v. 

90 Swann v. Scarles, Moore, 74, 3 "Weaver, 12 Mees. & W. 718. 

Dyer, 257 a; Bragg v. Wiseman, 1 ^^ See post, §§ 149 b (2), 158 a (2) 

Brownl. & G. 22; Netherton v. Jes- ^*^- 

„,,,,„ ,, „.^ „ 93 Williams, Executors (9th Ed.) 

sop. Holt, 412; Adams v. Gibney, 6 ^^^3. ^^^^.^^^ ^^^ ^^^ ^^^ 

Bmg. 656; Penfold v. Abbott, 32 Law ^^^^^ ^_ Ardenbrooke, 4 Q. B. 197; 

^- ^- ^- ^'^- Bradburne v. Botfield, 14 Mees. & W. 

91 Lucy V. Levington, 2 Lev. 26, 1 559 

Vent. 175; Raymond v. Fitch, 2 94 Williams, Executors, 1774. 



§ 56 COVENANTS WITH AGENT. 357 

land, neither the surviving covenantee nor the personal represen- 
tative of a deceased covenantee may properly, it seems, sue on 
account of a breach which occurs after the estate, whether rever- 
sionary or leasehold, which was originally vested in the cove- 
nantee, has been entirely transferred to a stranger or strangers, 
since in such case the right of action is in the person in whom the 
reversion or leasehold may at the time be vested, the case being 
analogous to that of a transfer of his entire interest by a single 
lessor or lessee.^s in case the interest in the land of one of two 
or more joint covenantees is still retained by him at the time of the 
breach, though the interests of the others have been transferred, 
presumably the survivors of the original covenantees should join 
with the transferee in a suit on the covenant.^® 

§ 56. Covenants with agent. 

a. Under seal. In accordance with the common law rule that 
those persons only can sue upon a sealed instrument who are par- 
ties thereto, it is ordinarily held that where a contract under seal 
is made with an agent in his own name, the principal cannot sue 
thereon.^'^ And this view has occasionally been asserted with 
reference to the right of the principal to sue on covenants 
on the part of the lessee, contained in an instrument of lease, which 
is made and executed by an agent as lessor without naming the 
principal, or with only incidental reference to the principal, the 
principal being, in such cases, precluded from suing thereon.''* 

b. Not under seal. In the case of stipulations contained in 
an instrument of lease not under seal, the undisclosed principal 

95 See post, § 148. not "C. D. by A. B." Mussey v. 

98 See Foley v. Addenbrooke, 4 Q. Scott, 61 Mass. (7 Cush.) 215, 54 
B. 197; Tbompson v. Hakewill, 19 C. Am. Dec. 719. 
B. (N. S.) 713. In Harms v. McCormick, 132 111. 

97 Clarke & Skyles, Agency, §§ 463, 105, 22 N. E. 511, it was decided that 
535; Tiffany, Agency, pp. 243, 308. if one joint owner of land made a 

98 Loeb V. Harris, 50 N. J. Law, lease "for himself and as agent of" 
382, 13 Atl. 602; Schaefer v. Henkel, the other owners, he alone signing 
75 N. Y. 378; McOolgan v. Katz, 29 and sealing it in his own name, he 
Misc. 136, 60 N. Y. Supp. 291. But could sue on the covenant for rent, 
the principal's right to sue is not ex- the rule above referred to not apply- 
cluded merely because the instru- ing because the agent had himsel* 
ment is signed "A. B. for C. D." and an interest in the land. 



358 COVENANTS AND OTHER CONTRACTS. § 57 

of the person with whom the stipulations were made, whether the 
ostensible lessor or lessee, would, it seems clear, have the right 
to enforce such stipulations,®® in accordance with the rules usually 
governing as to the rights of an undisclosed principal,^'"' though 
he would not have this right, presumably, if the agent represented 
himself as the real and only principal.^^i The right of the un- 
disclosed principal to enforce the contract made with his agent 
does not exclude the right of the agent himself to sue thereon.ioa 
c. With unauthorized agent. The question might arise 
whether, when a lease is made in behalf of one person by another, 
acting without authority, the person in behalf of whom it pur- 
ports to be made may sue on the covenants which may be entered 
into by the lessee. The question does not appear to have been the 
subject of adjudication, but applying the principles ordinarily 
controlling in the case of unauthorized acts in behalf of another, 
it seems that the person named as lessor would have the right to 
accept the benefit of the lessee 's covenants, provided at least the 
lessee does not recede therefrom before they are accepted liy the 
intended lessor.^"* And, presumably, any acts sufficient to ratify 
the lease, regarded as a conveyance, would be considered an ac- 
ceptance of the lessor's covenants.!^* It does not seem that the 
lessor named should be allowed thus to accept the benefit of the 
lessee's covenants unless the lease is validly ratified by him, as, 
for instance, by writing in ease a prior authority to the agent to 
make the lease would necessarily have taken that form. 

§ 57. Covenants by agent, 
a. Under seal. In accordance with the common-law rule that 

90 In Nicoll V. Burke, 78 N. Y. 580, 100 Clark & Skyles, Agency, §§ 526, 

it was decided that the principal 528; Tiffany, Agency, p. 303. 

could enforce the contract to pay 101 Huffcutt, Agency (2d Ed.) § 

rent, although the lease purported ^33 

to be made by "W. & E., agents, as .^^ Hunter v. Adoue, 38 Tex. Civ. 

landlords." „„.,,,, App. 542, 86 S. W. 622. See Huff- 
In Nolen V. Royston, 36 Ark. 561, ^ , ^„^ „j . „„„ 
though a note for the rent was pay- •="*' ^^^'^'^'^ ^^d Ed.) 208. 
able to the landlord's agent, the "' ^ee Huftcut, Agency (2d Ed.) 
landlord was regarded as entitled to § ^8 (5); Tiffany, Agency, § 18 (b). 
enforce a lien therefor in his own "* See ante, § 34 c. 



§ 57 COVENANTS BY AGENT. 359 

one not a party to a sealed instrument cannot ordinarily be held 
liable thereunder,i05 a person is not liable on the covenants in a 
sealed instrument of lease merely because it is executed by his 
agent, unless it appears from the instrument as a whole that the 
instrument was intended to bind the principal, and unless this 
appears the agent will himself ordinarily be liable on the cove- 
nants.^"^ 

b. Not under seal. In the case of stipulations contained in 
an instrument of lease not under seal, the undisclosed principal 
is, it seems, liable thereon, although the party by whom the liabil- 
ity is asserted supposed that he was contracting with the agent 
only, acting in his own behalf. ^"^ 

One executing a lease in his own name, or, it seems, accepting 
a lease which purports to bind him personally, cannot relieve him- 
self from liability on the stipulations thereof by showing that he 
was acting as agent for another.^"*' ^^^ 

A disclosed principal is always liable upon contracts made in 
his behalf which are within the scope of the agent's actual or 
ostensible authority, and this rule would apply as against a lessor 
or lessee acting through an agent. 

105 Huffcut, Agency (2d Ed.) 170, discovered none, holding that, in the 

237; Tiffany, Agency, § 83. absence of a personal promise or 

10c Kiersted v. Orange & A. R. Co., covenant, one signing a contract, 

69 N. Y. 345, 25 Am. Rep. 199; Soulo ^u„ therein represents himself to 

V. Palmer, 49 N. Y. Supp. 475; Len- ^^ ^^^ ^^ ^ ^.^^j^^^^ ^^ 
ney v. Plnley, 118 Ga. 718, 45 S. B, 



known principal, and who assumes 
to contract lor such principal only, 



593. See Northwestern Distilling 
Co. V. Brant, 69 111. 658, 18 Am. Rep. 
631; Haley v. Boston Belting Co., has been held personally liable upon 
HO Mass 73 2 N. E. 785. ^^^ covenants contained in such con- 
In Whitford v. Laidler, 94 N. Y. tract." This seems to assume the 
145, 46 Am. Rep. 131, a lease was question at issue, whether the indi- 
made to certain individuals, naming viduil signers did appear to be act- 
them and describing them as officials ing in a merely representative ca- 
of an association named, and to paoity. 

their successors in office, and such "7 TlflEany, Agency, p. 231; Clark 

individuals, "parties of the second & Skyles, Agency, § 457 et sea. In 

part," covenanted on behalf of Woolsey v. Henke, 125 Wis. 134, 103 

"themselves and their successors in N. W. 267, it was decided that the 

office" to pay the rent. It was held presence of a seal was immaterial in 

that such individuals were not liable this regard, if not being necessary 

for the rent, the court saying that to the validity of the instrument. 
"no case has been cited, and we have io». i"» See Stobie v. Dills, 62 111. 



360 COVENANTS AND OTHER CONTRACTS. § 58 

§ 58. Construction of covenants. 

a. General rules. We have before referred to certain general 
rules of construction which are applicable to instruments of lease 
as well as to other written instruments, and these rules ordinarily 
apply to the covenants in the instrument of lease as to other parts 
thereof. 11" Every covenant is to be expounded with regard to its 
context and such exposition must be upon the whole instrument, 
ex antecedentibus et consequentihus, and according to the reasonable 
sense and construction of the words." i If the words of a covenant 
are of doubtful meaning, they will, it is said, be construed most 
strongly against the covenantor." ^ The construction which has 
been placed upon particular covenants in connection with leases 
will be considered in different parts of this work in connection 
with the discussion of the various matters which may have been 
the subject of such covenants."^ 

b. Aider by oral evidence. In order to aid in the construc- 
tion of an instrument of lease, as of any other writing, oral evi- 
dence is admissible, provided there is any ambiguity on the face 

432; Seaver v. Coburn, 64 Mass. (10 be kept on the farm, the lessor 

Cush.) 324. agreed to provide pasture for 100 

110 See ante, § 36. head of cattle and cleared land 

111 Iggulden V. May, 7 Eaat, 241, enough to provide feed enough for 
per Ellenborough, C. J. See cases that number, not less than 100 acres, 
cited 11 Cyclopedia Law & Proc. p. the lessor was not bound to provide 
1051. I'OO acres in addition to that de- 

112 Bac. Abr., Covenant (F) ; Love scribed in the lease. It may per- 
V. Pares, 13 Eagt, 80. See Carpenter haps be questioned whether there 
V. Pocasset Mfg. Co., 180 Mass. 131, was a technical lease in this case 
61 N. E. 816, and cases cited 11 Cyc- giving the lessee exclusive posses- 
lopedia Law & Proc. p. 1052. sion. 

In Butt v. Maier & Zobeleln Brew- In Hume v. Hendrlckson, 79 N. Y. 
ery, 6 Cal. App. 581, 92 Pac. 652, it 117, it was decided that a lessee cov- 
Is said that the lessor is always to enanting to pay a mortgage on the 
be regarded as the promisor within leasehold was liable to the lessor 
a statutory provision that in case of covenantee immediately upon the 
uncertainty the construction of a mortgage becoming due and remain- 
contract is to be against the prom- Ing unpaid. In Ardesco Oil Co. v. 
isor. North American Oil & Min. Co., 66 

113 In Malick v. Kellogg, 118 Wis. Pa. 375, it was decided that such a 
405, 95 N. W. 372, it was decided covenant by the lessee to pay cer- 
that where, upon leasing a farm for tain overdue claims on the property 
dairy purposes at a rental to be de- was broken by a refusal to pay at 
termined by the number of cattle to once or within a reasonable time. 



§ 59 . DISCHARGE OF LIABILITY. 361 

of the mstrument, to show the sense in which the language was 
used.^^* 

§ 59. Discharge of liability. 

The liability of a lessor or lessee under a contract entered into 
by him in connection with the lease, for the purpose of defining 
the rights of the parties with reference to the holding thereunder, 
ordinarily terminates, as regards breaches which have not yet oc- 
curred, upon the termination of the tenancy. In other words such 
a contract, entered into in view of the creation of an estate in the 
lessee, is prima facie intended to operate only so long as an estate 
remains in him. Certain classes of contractual stipulations: 
entered into by the lessor or lessee in connection with the making 
of the demise might, no doubt, by express provision, continue after 
the termination of the tenancy, and that one may thus agree to 
pay "rent," so-called, even after the termination of the tenancy 
by forfeiture, has been jadieially recognized.^^^ Some stipula- 
tions, moreover, are in their nature such as to call for perform- 

11* Bell's Adm'x v. Golding, 27 Ind. month. And in Calhoun v. Wilson, 
173; Ingram V. Dalley, 123 Iowa, 188, 27 Grat. (Va.) 639, It was decided 
98 N. W. 627; American Sav. Bank that, the lessee having covenanted 
v. Shaver Carriage Co., Ill Iowa, to make repairs, without naming any 
137, 82 N. W. 484; Bellinger v. time for performance, evidence was 
Kitts, 6 Barb. (N. Y.) 273; Equator not admissible to show the Intention 
Min. & Smelting Co. v. Guanella, 18 in this respect. 
Colo. 548, 33 Pac. 613; Hartsell v. That such evidence is not admis- 
Myers, 57 Miss. 135; Gumming v. sible in the absence of any ambig- 
Barber, 99 N. C. 332, B S. E. 903; uity, see Rhodes v. Purvis, 74 Ark. 
Bartley v. Phillips, 165 Pa. 325, 30 227, 85 S. W. 235; Carter v. William- 
Atl. 842; O'Neill v. Ogden Aerie No. son, 106 Ga. 280, 31 S. E. 651; Rector 
118, 32 Utah, 162, 89 Pac. 464; Pine v. Hartford Deposit Co., 190 111.' 380, 
Beach Inv. Corp. v. Columbia Amuse- 60 N. E. 528; Tallmadge v. Hooper, 
ment Co., 106 Va. 810, 56 S. B. 822. 37 Or. 503, 61 Pac. 349; Beadle v. 
But see Castleman v. Du Val, 89 Md. Monroe, 68 Hun, 323, 22 N. Y. Supp. 
657, 43 Atl. 821, where it was de- 981 ; Gerry v. Siebrecht, 88 N. Y. Supp. 
cided that evidence was not admis- 1034; Hall v. Phillips, 164 Pa. 494, 
sible to show whether, in the case of 30 Atl. 353; Easterby v. Heilbron, 1 
a tenancy commencing on the twen- McMuI. (S. C.) 462. For a dlscus- 
tieth day of one month, a provision slon and criticism of this limitation 
for the payment of rent on the twen- on the general rule, see 4 Wlgmore, 
tieth day of each month meant the Evidence, § 2462 et seq. 
flrst or the last day of the current no See post, § 182 J. 



362 COVENANTS AND OTHER CONTRACTS. § 59 

tmce after rather than during the term. In the absence 
of a clear showing of intention otherwise, however, the "cov- 
enants of a lease" will, it is conceived, usually be construed to 
endure only so long as the leasehold interest endures. 

It may happen that, even before the termination of a tenancy, 
a contractual stipulation entered into in connection with the 
creation of the tenancy may cease to be operative, that is, may 
be discharged, by the act of the parties. The principles appli- 
cable to such a discharge are no doubt the same in the case of 
a contract entered into by the lessor or lessee at the time of a 
demise, "a covenant of the lease," as in the case of any other con- 
tract. 

At common law the liability under a technical covenant, that 
is, a contract under seal, can be discharged by agreement only 
if this is under seal, that is, there must be a technical release,ii® 
while if not under seal it may be discharged by an oral agree- 
ment based on a suflficient consideration.^^^ In many of the 
states the rules as to the discharge of contracts under seal have 
been modified to the extent that if the parties have acted on 
a parol agreement looking to the discharge of such a contract, 
the contract is diseharged.^i* And this view has been applied 
in the case of an oral agreement by the lessor to reduce the rent 
covenanted to be paid, such reduced amount having been ac- 
cepted in satisfaction of the lessor's claim. ^i® 

no Piatt, Covenants, 590'; Shep- does not appear whether the covenant 

pard's Touchs.tone, 181; White v. was under seal. 
Parkin, 12 Bast, 578; Delacroix v. In Illinois the rule seems to be 

Bulkley, 13 Wend. (N. Y.) 71. that a contract under seal may be 

117 Hammon, Contracts, 853, 861. released or discharged by oral agree- 

118 Hammon, Contracts, 860; Page, ment, but that it cannot be modified 
Contracts, 1345. thereby, and the courts there have 

119 McKenzie v. Harrison, 120 N. applied this theory in the case of 
Y. 260, 24 N. E. 458, 8 L. R. A. 257, leases by regarding an instrument 
17 Am. St. Rep. 638; Snow v. Gries- of lease as a single contract, and a 
heimer, 220 111. 106, 77 N. E. 110. discharge or modification of any 
In Jones v. Daly, 73 App. Div. 220, covenant thereof as a modification 
76 N. Y. Supp. 725, afd. without opin- of this contract, and as consequently 
ion in 175 N. Y. 520, 67 N. E. 1083, invalid and nugatory, while they re- 
it was assumed that an oral agree- gard an oral surrender of the lease- 
ment not to enforce the lessee's cov- hold as a release or discharge, and 
enant was binding on the lessor. If as consequently valid. Alschuler v. 



§ 59 DISCHARGE OF LIABILITY. 363 

Apart from any difficulties arising from the presence of a 
seal, a subsequent oral contract discharging a prior contract is, 
if based on a valid consideration, unquestionably effective for 
this purpose,i2o and, consequently, no doubt, by such an agree- 
ment any covenant of a lease, not under seal, may be discharged. 
If, on the other hand, there is no consideration for the agree- 
ment of the covenantee to discharge the covenantor, it does not 
seem that such agreement should be given any effect.'^^^ Such 
is the rule ordinarily prevailing in this country with reference 
to contracts generally,i^2 \,^i there are occasional decisions and 
dicta to the effect that an agreement to discharge a unilateral 
contract is valid though not supported by a consideration.i^s 
and there are eases which, with out any discussion of the matter, 
seem to assume the effectiA'eness of a discharge or "waiver" of 
a covenant in a lease, though not based on any consideration,^^* 
a view which is difficult to support on principle, in the absence 
of an estoppel upon the covenantee to assert the covenant by 

SchifE, 164 111. 298, 45 N. B. 424; Brown, 81 Me. 56, 16 Atl. 334, the 

Leavitt v. Stern, 159 111. 526, 42 N. court regarded the question whether 

E. 869; Knefel v. Daly, 91 111. App. there was "a waiver of the contract 

321. of lease"- by the lessor as one for the 

120 Hammon, Contracts, § 425; jury. The action was one of coven- 
Clark, Contracts, 608. ant by the lessor, and the question 

121 That a consideration is neces- must really hare been whether there 
sary to support an agreement to dis- was a "waiver" of the lessee's cov- 
charge a covenant in a lease, see enant. The court assumes, appar- 
Loach v. Farnum, 90 111. 368; Post ently, that there is a waiver, re- 
V. Vetter, 2 E. D. Smith (N. Y.) 248; lievlng the lessee from liability, in 
Spota V. Hayes, 36 Misc. 532, 73 N. case the lessor explicitly indicates 
Y. Supp. 959; Jones v. Daly, 73 App. an intention not to enforce such lia- 
Div. 220, 76 N. Y. Supp. 725, afd. bility. 

without opinion 175 N. Y. 520, 67 In Thomson-Houston Elec. Co. v. 

N. E. 1083. Durant Land Imp. Co., 144 N. Y. 

122 See Hammon, Contracts, §' 34, it was decided that the right to 
425; Clark, Contracts, 609; Harri- sue on the lessor's covenant to re- 
man, Contracts, § 505. pair was not lost by the lessee's con- 

123 See Professor Williston's ad- tinuance in possession with knowl- 
mirable chapter on "Discharge of edge of the breach; and in Stearns 
Contracts" in his edition of Wald's v. Lichtenstein, 48 App. Div. 498, 62 
Pollock on Contracts. N. Y. Supp. 949, a like decision was 

124 Dauchy Iron Works v. Toles, made with reference to a breach of 
76 111. App. 669; Boos v. Dulin, 103 a covenant to change the tenants of 
Iowa, 331, 72 N. W. 533. In Rice v. adjoining premises. 



364 COVENANTS AND OTHER CONTRACTS. § 60 

reason of his having induced the covenantor to act on the 
theory that performance will not be required. The fact that 
the lessor fails to exercise a right of re-entry for breach of cov- 
enant does not affect his right to recover damages for the 
breach.125 

§ 60. Remedy for breach of covenant. 

The remedy for breach of a covenant or other contract entered 
into in connection with a conveyance by way of lease is ordin- 
arily by an action for damages. Occasionally the character of 
the covenant, or the circumstances of the parties, may be such 
as to justify a decree of specific performance, i^e or an injunc- 
tion to prevent a breach.^^T 

The damages recoverable must be restricted to compensation 
for the injury actually> caused by the breach, and loss which 
may or may not have been caused by the breach cannot be con- 
sidered.12* 

§ 61. Oral contracts in connection with written lease. 

The "parol evidence rule," excluding evidence of oral agree- 
ments to -^-ary or contradict the terms of a written instrument, 
has been frequently applied in connection with instruments of 
lease, with the result of excluding evidence of oral agreements, 
or statements made either before the execution of the written 
instrument or contemporaneously therewith.^ 29 Thus it has 

125 McKildoe's Ex'r v. Darracott, was an express stipulation for their 

13 Grat. (Va.) 278; Spencer v. recovery in case the covenantee was 

Dougherty, 23 111. App. 399. under the necessity of employing an 

• 126 See e. g., § 233. attorney by reason of the breach. 

127 See e. g., §§ 116 g, 123 1, 152 k. See Richards v. Bestor, 90 Ala. 352, 

128 In United States Trust Co. v. 8 So. 30. 

O'Brien, 46 N. Y. St. Rep. 238, 18 N. 129 gee Henderson v. Arthur 

Y. Supp. 798, it was held that for [1907] 1 K. B. 10; Kelley v. Chicago, 

breach of covenant by the lessee to M. & St. P. R. Co., 93 Iowa, 436, 61 

allow the lessor to show the premises N. W. 957; Naumberg v. Young, 44 

and to post a notice thereon, dam- N. J. Law, 331, 43 Am. Rep. 380; 

ages could not be recovered on the Howard v. Thomas, 12 Ohio St. ZO'l; 

theory that this caused the premises Ninman v. Suhr, 91 Wis. 392, 64 N. 

to remain unlet for five months. W. 1035; Grashaw v. Wilson, 123 

The covenantee has been allowed Mich. 364, 82 N. W. 73; Hallenbeck v. 

to recover attorney's fees when there Chapman, 72 N. J. Law, 201, 63 All. 



§ 61 ORAL CONTRACTS ACCOMPANYING WRITTEN LEASE. 365 

been decided that evidence cannot be given of oral agreements 
by the lessor to make repairs or improvements upon the prem- 
ises,^*" to place furniture thereon,i^' not to carry on business in 
competition with the lessee,!*^ to use the adjoining premises only 
in a particular way/-^^ to put the lessee in possession,^** to allow 
the lessee to remove fixtures.i*^ go evidence of an oral agreement 
by the lessee not to assign the leasehold,^*® to use the premises for 
a particular purpose only,isT to leave hay and fodder on the prem- 
ises at the end of the term,i38 has been excluded. Likewise, 
statements, in the nature of warranties, by the lessor, as to the 
physical condition of the premises or a part thereof at the time 
of the lease, have been excluded,!^^ as have agreements varying 

498; Cleves v. Willoughby, 7 Hill 117 Ind. 512, 20 N. E. 428, 3 L. R. A. 
(N. Y.) 83; Hall v. Beston, 26 App. 308; Lerch v. Sioux City Times Co., 
Div. 105, 49 N. Y. Supp. 811, af d. 91 Iowa, 750, 60 N