THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE OV THE LAW OF LANDLOED AND TENANT INCLUDING LEASES, THEIR EXECUTION, SURRENDER, AND RENEWAL, THE PARTIES THERETO, AND THEIR RECIPROCAL EIGHTS AND OBLIGATIONS, THE VARIOUS KINDS OF TENANCY, THE USE AND POSSESSION OF THE PREMISES THE CHARACTER OF RENT AND THE REMEDIES FOR ITS RECOVERY, THE TENANT'S RIGHT TO FIXTURES, &c., &c. FULL REFERENCES TO THE LATEST AMERICAN AND ENGLISH CASES AND TO RELEVANT AMERICAN AND ENGLISH STATUTES, BOTH ANCIENT AND MODERN BY H. C. UNDERHILL, OF THE New York Bar Author of a " Treatise on the Law 'of Evidence." a "Treatise on the Law of Criminal Evidence," a " Treatise on the Law of Wills," and of the article " Criminal Law, " in the "Cyclopedia of Law and Procedure." IN TWO VOLUMES VOL. 1 CHICAGO T. H. FLOOD & CO. 1909 T Un V5 U 19^9 CJOPYRIGHT, 1909, BY HARRY C. UNDERBILL 6TA.TE JOURNAL PRINTINQ COMPANY, PwWTItRH AND StiCRKOTYPKRS, >IAi)LHON, WLS. To My Wife MARGARET UNDERHILL, THESE VOLUMES ARE AFFECTIONATELY DEDICATED BY THE AUTHOR 670834 Preface. Owing to the fact that there already exist many text books treating more or less elaborately of the topic of the reciprocal re- lations and rights of landlord and tenant, it appears appropriate in this place for the author to state some of the reasons which in liis opinion justify the publication of this work. This is the more necessary as it is reasonably certain that the plan, the the- ory and the merits of this work will be placed in comparison with the manj^ treatises on the subject which are now in the hands of the profession. In the first place it has seemed, to the writer that an}^ treatment of the relation of landlord and tenant which lost sight of the fact that the relationship was of a contractual char- acter, and that consequently the rules of the modem law regu- lating the subject of contract were applicable, must be at once insufficient and illogical. Keeping this fact in view constant reference has been made to the general principles of the law of contracts of which the rules regulating the relation of landlord and tenant are a part. For example, a full discussion is at- tempted of the rules of the construction and interpretation of covenants as contained in the instrument of lease. Again, such topics as consideration, description of the parties, subject mat- ter, etc., have received adequate discussion; while, on the other hand, very many topics which anciently were regarded bj' the text-book writers as of great importance, but which have become obsolete, either by statutory enactment or by judicial legislation, have, in the interest of conciseness, been w^holly or partly omit- ted. Thus there will be found ver\' little in these volumes of the law of distress for rent for the reason that, in most States of the Union it has been abolished. On the other hand the land- lord's lien for rent or advances which is altogether the creation VI PEEFACB. of statutory legislation is treated at considerable length. So, too, the feudal tenures and their incidents of various sorts re- ceive but scanty space and attention, the space which their discus- sion would have occupied being employed in a discussion of more timely topics, as for example, the negligence of the landlord in general and the reciprocal rights and obligations of the parties to leases of separate flats or floors in dwelling houses. The author has in general endeavored to adhere closely to the rules and principles of law which have been enunciated by the courts of last resort, preferring rather to record the law as he has found it to exist than to state what in his opinion the law ought to be. Where the courts have differed in determining the law, he has not, as a general rule, sought to reconcile the de- cisions, except to point out, when necessary, the differing cir- cumstances under which the variant decisions were rendered. While the most recent cases, as being most accessible, have been given the preference in citation, the early American decisions and the English decisions, particularly those which are recog- nized as leading <^ases, have neither been overlooked, nor inten- tionally omitted. An attempt has been made to have the citation of cases as com- plete and exhaustive as possible. M^my thousand cases have been examined, analyzed and cited. It will be found in many instances that not only is the page in the report cited upon which the case cited begins, but that the page which contains or af- firms the rule of law which the case is cited to support is also given. Where cases have been cited from the reports of the National Reporter system, the official reports have also been cited so far as the cases have been officially reported prior to going to press. H. C. Underiiill. Borough of Brooklyn, New York. April, 1909. Table of Contents. CHAPTER I. THE PARTIES TO THE LEA&E. § 1. The general rule i 2. Leases by life tenants 2 3. Leases by life tenants under a power 3 4. The termination of terms created by a life tenant as a landlord 9 5. The validity of lease by tenants for years 8 6. Guardianship in general 9 7. The liability of an intruder as guardian 11 8. The power of a guardian in socage 11 9. The power of testamentary guardians 12 10. The power to lease of a guardian appointed by a court 13 11. When the permission of the court to the making of the lease is required 14 12. Limitations upon the power of a guardian to lease 14 13. The duty of the guardian to lease 15 14. The guardian's duty to collect rents 16 15. Formal requisites of the lease 16 16. Covenants by guardians 17 17. An infant's liability for rent 17 18. The ratification of a lease made by an infant 19 19. The invalidity of a lease made by a feme sole 19 20. The effect of her marriage upon a lease made by a feme sole 20 21. The invalidity of a lease made by a feme covert at the com- mon law 21 22. The husband's power at common law to lease lands of the wife 22 23. The right of a married woman to lease under the modern statutes 24 24. The eifect of the death of the husband or wife upon a lease made by the wife 24 25. The control of the husband over leases held by the wife as executrix 25 26. The disposition of a term by the husband of a lessee to take effect at his death 20 VIU TABLE OP CONTENTS. 27. Leases of communitj- property 27 28. The modern rule as to the relation of mortgagor and mort- gagee 28 29. The right of the mortgagee to the rent at the common law 29 30. The appointment and powers of a receiver in foreclosure. . 31 31. The effect of a foreclosure upon the tenant's rights 33 32. The right to rents of the purchaser on a sale under fore- closure 34 33. The power of the Federal government to lease lands 35 34. The validity of leases of lands owned by Indians 37 35. Leases by aliens 41 36. Leases to aliens 41 37. The effect of the death of the lessee on leases for terms of years 41 38. The expiration of a lease for years on the death of the lessee 43 39. The liability of the personal representative of the deceased lessee of a term of years 44 40. The remedies of the personal representative of the lessee. . 47 41. The rights of an executor of a lessor 48 42. The liability of a personal representative for rents 51 43. The power of an administrator to lease the lands of his in- testate 52 44. The power of an administrator with the will annexed to lease 53 45. The general rule as to the power of executor to make leases 54 46. A lease which is executed by one of several executors or ad- ministrators 54 47. A lease by an executrix being a feme sole 55 48. The equitable jurisdictiton over leases made by executors. 56 48a. The power of trustees to grant leases 5G 48b. The proper covenants in leases by trustees 58 48c. Signature by one of two or more trustees 59 48(i. The personal liability of the trustee 59 CHAPTER II. CORPORATION LEASES. 9 49. The common law power of corporations to grant leases. ... 61 50. 'i'he common law rule as to the power of a coriwration to become a lessee 62 51. The form of corporation leases 63 52. The necessity for seal on a corporation lease 64 53. By what officer a corporation lease should be executed G.'j 54. The period for which a corporation lease may run 60 55. When leases are ultra vires 68 56. The effect of the dissolution of a corporation upon an exist- ing lease 70 TABLE OP CONTENTS. IX 57. The power of municipal corporation to grant leases 71 58. A municipal corporation as a tenant 73 59. Ultra vires leases by municipal corporations 76 60. Leases of park grounds by municipal corporation 77 CHAPTER III. LEASES BY JOINT OWNERS. § 01. Leases by joint tenants and tenants in common distin- guished 80 62. Tenancy in common 81 63. The relation of landlord and tenants among tenants in com- mon 82 64. Tenants in common as lessors 84 65. Actions by tenants in common to recover rent 87 C6. Effect of a lease by joint owners 88 67. The right of joint tenants to the rent 89 68. The liability of joint lessees for rent 91 69. The liability for rent of co-partners in business 92 CHAPTER IV. LEASES BY AGENTS. ^ 70. The agent's authority to lease must be strictly pursued. ... 94 70. The apparent authority of the agent 90 72. Lease under seal made by an agent 97 73. An agent's authority in writing under the statute of frauds 99 74. The ratification of a lease executed by an agent without au- thority from the principal 100 75. The fraud and false representations by an agent 102 76. The authority of an agent to accept possession on abandan- ment by the tenant 102 77. The power of an agent appointed to manage property 103 78. Where the agent renders himself personally liable 105 79. Undisclosed principal where a lease is under seal 108 CHAPTER V. THE CHARACTER OF THE PROPERTY WHICH MAY BE LEASED. § 80. What may be leased 110 81. A lease of land held adversely Ill 82. Leases of public land 112 S3. The lease of land or houses with chattels to be used there- with 113 I TABLE OF CONTENTS. S4. Lease of surplus waters of canals 116 85. Leases by a tenant in dower or curtesy 118 86. Agricultural- leases in New York 118 87. The ix)wer to lease a homestead 121 88. The lease of a portion of a homestead 123 89. The mode of the execution of a lease of a homestead 124 CHAPTER YI. TENANCY FROM YEAR TO YEAR. § 90. The origin of tenancy from year to year 127 91. The continuity of the several yearly periods 128 92. The use of express language in creating a tenancy from year to year 129 93. The character of the cultivation of the land as determining the period of the tenancy 151 94. The payment of a yearly rent as creating a tenancy from year to year 133 95. The effect of the death of either party upon a tenancy from year to year 136 96. The rule as to repairs by a tenant from year to year 137 97. A tenancy from year to year created by a tenant holding over 139 98. Rebutting the presumption which arises on a tenant hold- ing over 141 99. The modification of the terms of the original lease as against a tenant holding over 142 100. Holding over excused when it is caused by the action of the board of health 14-5 101. Statutory modification of the rule that a holding over creates a tenancy from year to year 146 102. Tenancies from year to year created by leases void under the statute of frauds 146 103. Tenancies from year to year arising from defective and un- executed leases 148 104. The necessary incidents of a tenancy from year to year. . 149 10.5. Tenancies from month to month. How created 150 106. Tenancy from month to month by holding over 152 107. The commencement of a monthly period 153 108. The conversion of tenancies from month to month into tenancies from year to year 153 109. The statutory rules creating a tenancy from month to month by holding over 153 1 10. Tonanoies from week to week 154 111. The necessity of notice to quit at common law 155 112. The length of time required by the notice to quit 158 113. The length of the notice to quit in weekly and monthly tenancies 160 TABLE OF CONTENTS. XI 114. Statutory regulation of the notice to quit 161 115. The necessity and the sufficiency of a notice to quit in the case of tenancy from month to month 1C3 116. The statutory regulation of the notice to quit in tenancies from month to month 163 117. Notice to quit when required by the express terms of the lease 164 118. The form and the character of the notice to quit 165 119. The construction of the language of the notice to quit 167 120. To whom notice must be given 168 121. By whom the notice to quit must be given 170 122. The date upon which the period stated in the notice must terminate 172 123. The necessity of personal service of the notice to quit 173 124. A notice to quit given by an agent 17& 125. Waiver of defects in the notice to quit 176 126. Waiver of a notice to quit by a subsequent notice 176: 127. The effect of a notice to quit 177 128. The withdrawal of a notice to quit 178 129. The waiver of a notice to quit by the receipt of rent 178 130. When a notice to quit may be dispensed with by a surren- der ISO 131. A disavowal of the landlord's title by the tenant may dis- pense with giving a notice to quit by the landlord 182 CHAPTER VII. TENANCY AT WILL. 133. The definition of an estate at will 186 134. A reservation of rent is not necessary to create a tenancy at will 186 135. The liability of a tenant at will for rent 187 136. Tenancy at will by express agreement 188 137. The mere occupation of the land by the permission of the owner 189 138. Leases of an uncertain duration 190 139. Entry under an agreement for a lease 192 140. Tenancy at will created by a defective or unexecuted lease. 194 141. Leases void under the statute of frauds 195 142. The vendee of the land having gone into possession under a contract to buy 197 143. Tenancy at will by holding over 201 144. The occupancy of the premises incident to the employment of the occupant 202 145. The judgment debtor holding over after sale under execu- tion 204 b Xll TABLE OF CONTENTS. 146. The lessee of a judgment debtor holding over after the sale under the execution 204 147. The determination of the will. In general 205 148. The termination of a tenancy at will by the death of either party to it 206 149. The partition of the demised premises by tenants in com- mon 207 150. Termination of the tenancy by the surrender and abandon- ment of the premises 208 151. The termination of a tenancy at will by the landlord's alienation of the premises 208 152. Denial of the title of the landlord by a tenant at will 211 153. The tenancy at will may be determined by the giving of a new lease 213 154. The entry of the landlord on the land as terminating the tenancy 214 155. Notice to quit when required in tenancies at will at com- mon law 216 156. Notice to quit and demand of possession as terminating a tenancy at will 218 157. Statutory notice required to terminate a tenancy at will . . . 218 158. The termination of the period of notice 221 159. The commission of waste by a tenant at will 222 160. The assignability of the tenant's interest in an estate at will 223 161. The right of a tenant at will to recover damages for an in- jury to the land 224 CHAPTER VIII. TENANCY AT SUFFERANCE. 162. The definition of a tenancy at sufferance 226 163. A tenancy at sufferance arising on the termination of a tenancy at will 227 164. A tenancy at sufferance by holding over 228 165. The grantor in possession after the delivery of his deed. . 230 166. A servant or agent in the possession of his employer's land after the contract is at an end 231 167. Mortgagor in possession after sale or condition broken... 232 168. When an undertenant becomes a tenant at sufferance 233 169. Necessary for notice to quit 234 170. Right of a tenant at sufferance to lease 235 171. The liability of a tenant at sufferance to pay rent 235 172. Action of trespass by the landlord against the tenant at sufferance 237 T^VBLE OF CONTENTS. Xlll CHAPTER IX. WHAT CONTRACTS ARE LEASES, § 173. The definition of a lease 240 174. Leases in reversion. Interesse termini 241 175. Formal and technical language unnecessary 242 176. Words proper to create a lease 244 177. Whether a writing is a lease or an agreement to make a lease 246 178. Question for court or jury 250 179. The intention of the parties 2.jO 180. The assent of the parties to a lease 251 181. The consideration for the lease 254 182. Some circumstances which tend to show an instrument is a lease 255 183. No presumption of tenancy from possession alone 257 184. The length of a term in an agreement to make a lease 258 185. The term as stated in the lease 260 186. Entry into possession as indicating a lease 2G1 187. The presumption of an existing tenancy from the payment of money by the occupant to the owner 262 188. The necessity for the payment of rent 263 189. The i)erformance of a cont'.act to execute and deliver a lease 264 190. The specific performance of an agreement to make a lease. . 2G5 191. The measure of damages for a breach of an agreement to make a lease 267 192. Letters constituting agreement to make a lease 268 193. A lease distinguished from a license 269 194. Agreement permitting the cutting of timber 273 195. The possession of a tenant under a void lease 275 196. A lease with an agreement to sell the premises 276 197. Lease or mortgage 277 198. The lease of space in a department store 280 199. A lease distinguished from a contract to furnish board and lodging 281 200. Agreement to board and care for the owner of land 2S3 201. An entry upon land of another under an option to purchase from him 284 201a. The mortgagee of the tenant's chattels in possession 284 202. Future lease of an unfinished building 2SG 203. Mortgagor or his tenant and a purchaser at a sale under foreclosure 287 204. Contracts for advertisin-:? space 288 205. A purchaser of a crop on an execution sale 290 206. The judgment debtor holding over after a sale on an exe- tion 291 XIV TABLE OF CONTENTS. 207. Whether an instrument is a lease or a partnership agree- ment 291 208. Contracts for steam heating and for steam and water power 293 209. Miscellaneous cases 297 210. Whether occupant of premises is servant or tenant 299 211. The intention of the parties 300 212. Illustrations of the rule 302 213. The character of the posssession of the premises as de- termining whether an occupant is a servant or a tenant 302 214. The power of the master to remove his servant from the premises 305 215. Contract of hiring by a religious society 305 216. A public officer as a tenant of a county 306 217. A servant holding over after his employment is at an end. 307 218. The right of third parties 307 219. The distinction between cropers and tenants 308 220. The ownership of the crop 311 221. The duties and the rights of the landlord and tenant. . . . 313 222. The remedies of the parties 315 223. Relation of landlord and tenant not presumed between vendor and vendee 316 224. The default or the refusal of either party to perform 318 225. An express agreement of the vendee to pay rent 319 226. The entry of a vendee under a parol agreement to purchase 322 227. The vendor of land continuing in possession after his con- veyance of the title 322 CHAPTER X. THE FORM AND EXECUTION OF LEASES. § 228. The scope of this chapter 325 229. The formal requisites of a lease 325 230. General rules of the law of contracts as to signatures 326 231. The signature to a lease by the tenant only 327 232. The signature by the lessor only 328 233. The signature to a lease affixed by a surety 330 234. The necessity for and the form of seals 331 235. The attestation of leases 3S2 236. The necessity for an acknowledgment 334 237. The description of the premises 336 238. The description of the parties 340 239. The date of the lease 342 240. The date of the commencement of the term 343 241. The necessity of the delivery of the lease 348 242. The acceptance of a lease 351 243. The necessity for the entry of the tenant 354 TABLE OP CONTENTS. XV 24^. The date upon which the lease expires 355 245. The reversion in the lessor 357 246. The approval of the lease by the attorneys for the parties 357 247. The responsibility of the tenant 360 248. A failure to read the lease 361 249. A mistake in the execution of a lease 362 250. The usual and customary covenants and provisions 364 251. Leases executed in duplicate and counterpart 366 252. The mode of proving a written lease 367 253. Term expiring on the happening of a contingent event. . , . 368 254. Leases terminable on the sale of the premises 371 255. The option of the lessee to terminate the lease 373 256. Measure of the damages for a failure to execute a lease. . 377 257. The effect of the statute of frauds on leases 378 258. Contracts concerning an interest in land 379 259. Extensions and renewals of leases 383 260. Leases by parol which are void under the statute 384 261. The character of the writing 386 262. Effect of performance in taking the lease out of the stat- ute 388 263. The recording of leases 389 264. The construction of the statutes requiring the record of leases 391 265. The effect of recording a lease upon the rights of a subse- quent lessee 393 266. The effect of the record as notice 394 267. As against the creditors of the lessor and persons claim- ing under him 394 268. The effect of recording a lease which is not required to be recorded 395 CHAPTER XI. THE PROPERTY WHICH IS INCLUDED IN THE LEASE. 270. The scope of this chapter 396 271. Property included 397 272. The privileges of a tenant of a part of a building 400 273. Description of leased premises by street number 402 274. Elxclusive right of the lessee of a hotel to use a particular name 404 275. The tenant's right to light and air coming through his front and rear windows 405 276. Rights as to the use of light and air as between the pro- prietors of adjoining premises 409 277. The right of a tenant to use outside walls 412 278. The use of roof for advertising purposes 415 279. Tenant's right to show windows 415 XVI T/BLE OF CONTENTS. 280. Easements of egress and ingress 416 281. Tenant's right to use of stairways and halls 419 282. The right to use an elevator 424 283. Electric light as an appurtenant 426 284. Easement of water supply 426 285. The riparian rights of the lessee 430 286. Right of the tenant to accretion 433 287. Ice forming on land demised 434 288. Lease of a mill or of a mill privilege 437 289. Action for damages for the violation of an easement 439 290. The protection of the tenant's easements by an injunction 440 291. Construction of the word "appurtenances." The general rule 442 292. Things which have been held not to pass as appurte- nances 446 293. Meaning of the word "half." 451 CHAPTER XII. THE CONSTRUCTION OF LEASES. § 294. "What law governs 452 295. The construction of the language of written leases 453 296. The lease construed by the conduct of the parties 455 297. Writings shall be construed together 457 298. Merger in lease of all preliminary conversations 457 299. The meaning of technical terms in a lease 459 300. When parol evidence is received in the case of leases 459 301. When parol evidence is not received in the case of leases. . 463 302. Parol evidence of custom to aid in the construction of a lease 465 303. The modification of the lease by the parties 466 CHAPTER XIII. FRAUD AND DURESS IN PROCURING THE LEASBL § 304. General rules as to duress and fraud in relation to con- tracts 46S 305. The effect of delay 409 306. Fraud In the procurement of a lease 470 307. The cancellation of the lease for duress or inadequacy of the consideration 472 308. Leases between persons occupying confidential relations with the lessee 474 309. The elements which must co-exist in the case of fraud. . . 475 310. The fraud of the tenant 479 311. The tenant who has been defrauded need not abandon the premises 480 TABLE OF CONTENTS. Xvii CHAPTER XIV. THE ATTORNMENT OF THE TENANT. 312. Attornment defined 482 313. Payment of rent as constituting attornment 483 314. The necessity for the landlord's consent to the attornment 484 315. The effect of the statute of Anne upon attornment 485 316. The tenant's attornment to a mortgagee or purchaser at foreclosure 486 317. The statutory rights of the grantee of the reversion 488 318. The grantee's right to collect rent 491 319. The extent of the rights of the grantor after his convey- ance 494 320. The obligations of a grantee to tenants in possession 496 321. The notice to the tenant of the sale of the reversion 498 322. The effect of a sale of the reversion under a decree or judgment 500 CHAPTER XV. THE NATURE AND INCIDENTS OF RENT. 323. Rent. Definition and genei-al characteristics 504 324. Various kinds of rent distinguished 506 325. Whether rent may be reserved out of personal property. . 509 326. The payment of rent as evidence of tenancy 511 327. The certainty of rent 512 328. Rent to become due on the happening of some future event 513 329. Rent payable in services 514 330. Rent payable in specific articles 515 331. The express covenant to pay rent 518 332. A covenant to pay rent may be implied 518 333. When rent is due 522 334. Rent which is made payable in advance 524 335. The place for the payment of the rent 527 336. To whom rent should be paid 529 337. Rent made payable to persons other than the landlord. , . . 532 338. Rent payable in instalments 534 339. The tender of the rent by the lessee 536 340. Apportionment of rent between successive landlords 538 341. Apportionment among the several assignees of the lessor. 541 342. Apportionment among the assignees of the lessee 543 343. The liability of testamentary trustees for rent 544 344. The payment of rent by an under-tenant to the original lessor 544 345. Payment of rent by note, check or draft 546 XVlll TABLE OF CONTENTS. 346. Receipts for rent. When conclusive and presumption of payment therefrom 549 347. The application of rental payments 551 348. The necessity of a demand for the payment of rent 553 349. The reduction of the rent by the landlord during the term 554 350. Increase of rent on re-hiring or during the term 558 351 The jurisdiction of the courts in an action to recover rent 558 352. The form and nature of the lessor's remedy to recover rent 559 353. Recovery by the landlord of rent where the tenant has never taken possession 561 354. Joinder of cause of action for rent 562 355. Recoupment, counterclaims and set off, by a lessee in an action to recover the rent 562 356. Notice to produce the lease in an action to collect rent. . . 566 357. Payment of rent during occupation. The meaning of the word "occupy." 566 358. The appraisal of the rent on the renewal of the lease 567 359. The manner of the appraisal 568 360. The result of a failure to fix the rent 569 361. The power of the court to make or to review an appraisal of rent 570 362. The basis of the action for use and occupation 572 363. The title of the landlord 575 364. The occupation must be proved 578 365. Against whom action for use and occupation can be main- tained 578 366. Parol evidence to prove use and occupation 5S0 367. Defenses in an action for use and occupation 582 368. Pleading in an action for use and occupation 582 CHAPTER XVI. THE SECURITY FOR THE RENT. 3C9. Deposit by the lessee as a security for payment of rent. . 583 370. The tenant's right to the return of his deposit 585 371. Deposit made by a tenant with landlord on contract to make a lease 587 372. The general rule as to liquidated damages 588 373. Chattel mortgage to secure the payment of the rent 589 374. Construction of an agreement to give security 5!)1 375. When the principal and surety on a lease may be sued jointly 591 376. General rule as to the liability of the grantor 592 377. Surety's liability upon a renewal of lease 593 378. The discharge or release of the surety 594 TABLE OF CONTENTS. XIX CHAPTER XVII. THE COVENANTS OF THE LEASE. § 379. Definitions and general conditions 599 380. The language by which, a covenant is created 6a2 381. The construction of covenants in leases G04 382. What are the usual and proper covenants GOG 383. Whether covenants are joint or several 608 384. Dependent and independent covenants GIO 385. The enforcements of negative covenants 611 386. The liability of the i>arties to a covenant and of their as- signee GlU 387. Covenants running with the land 614 388. The liability of the personal representatives of the coven- antor 619 389. Covenants and conditions distinguished 619 390. Whether conditions are subsequent or precedent 623 391. The construction of a provision for a forfeiture 625 392. The enforcement of a forfeiture after a tenant has become a vendee 627 393. The necessity for the notice of a forfeiture 628 394. The effect of a forfeiture upon the, lease 629 395. The effect in general of failure to pay rent 632 396. The necessity for a demand by the lessor in order to work a forfeiture 633 397. Waiver of demand for the rent 635 398. The entry of the landlord for the purpose of reletting. . . . 636 399. Demand for payment of the rent; when and how made by the landlord G37 400. Who may exercise the right to re-enter 639 401. The lessee cannot take advantage of a forfeiture 641 402. The waiver of a forfeiture by the lessor 644 403. The rent received after a forfeiture 646 404. The payment of the rent to a landlord after an action of ejectment or other action by a landlord for the posses- sion 650 405. Waiver may be implied from other facts than the accep- tance of the rent 653 406. When the payment of subsequent rent does not waive a forfeiture 655 407. Waiver by silence and delay 656 408. The waiver of a continuous breach of a condition 659 409. A forfeiture caused by a breach of a covenant to repair.. 661 410. The effect of a tender of rent 663 411. Relief against forfeiture at common law 664 412. Equitable relief against forfeiture 665 XX T.VBLE OF CONTENTS, CHAPTER XVin. THE RIGHTS OP THE TENANT TO POSSESSION- § 413. The tenant's right to possession of the premises 671 414. The lease of an unfinished building 674 415. The entry of the tenant before the commencement of the term 676 416. The remedy of the lessee for the failure of the lessor to give him the possession 676 417. Unlawful detainer against the occupant 677 418. The rights of the landlord against third persons during the term 678 419. The landlord's remedy for the diversion of natural waters 6S3 420. The right of the landlord to timber severed during the term 684 421. The tenant's right to bring an action of trespass against a stranger 685 422. The right of a lessor at will to maintain trespass 688 423. The delivery of the possession of a part of the premises. . 691 424. Placing "to let" signs upon the premises 692 425. The evidence and the pleadings 69S 426. The measure of the tenant's damages for a failure by the landlord to deliver possession 693 427. The covenant of quiet enjoyment, when implied 697 428. "What constitutes a breach of the covenant of quiet enjoy- ment 699 429. Liability on the covenant for the acts of strangers 700 430. The foreclosure of a mortgage as a breach of the covenant 701 431. Election of remedies by the tenant 702 . 432. The measure of damages for the breach of a covenant of quiet enjoyment 702 433. The rights of the parties to the lease as against one who nxaintains a nuisance 704 CHAPTER XIX. THE TENANT'S WASTE. § 434. Definition of "waste." 706 435. The common-law rule as to waste by tenants 708 436. The implied covenant by a lessee not to commit voluntary waste 709 437. The opening of mines by a tenant 710 438. Leases made without impeachment of waste 711 439. Alterations by the tenant constituting voluntary waste... 712 440. Waste by a tenant of farm land 714 441. The rule in Maryland as to waste by a tenant 719 TABLE OF CONTENTS. Xxi 442. Persons liable for waste 720 443. Tenant's liability for waste committed by others 721 444. Waste committed by a sub-tenant 722 445. The landlord's remedy by injunction 723 446. The remedy by an action for damages 725 447. The waiver of the right of the landlord to sue for waste. . 726 CHAPTER XX. THE USE OF THE PREMISES BY THE TENANT. § 448. The general rule as to the use of the premises by the tenant 729 449. A covenant restraining use to one purpose does not prevent use for other proper purposes 732 450. A covenant restricting the premises to use as a private dwelling or residence 736 451. Covenants against carrying on trade or business in the premises 738 452. Covenants against particular trades 740 453. Covenants by the lessor against carrjing on competing business 741 454. Covenants forbidding the use of the premises for offensive trades 746 455. Covenants against the sale of liquors on the premises.... 748 456. The use of the premises by the lessee for hotel purposes.. 749 457. Restrictions as to the exhibition of advertising signs by the tenants 752 458. Leases by organizations conducting camp meeting grounds 753 459. The restriction of the occupancy of the premises to partic- ular persons 755 4C0. Injunction by the landlord to restrain a prohibited use of the premises by the tenant 756 461. The implied covenant by a farm tenant for good hus- bandry 759 462.- Evidence to prove what is good husbandry 762 463. Covenants regulating the use and cultivation of a farm by the tenant - 762 464. A covenant In a lease of a fann to consume all fodder on the land 763 465. An injunction to restrain the breach of a covenant in a lease of a farm 764 466. Estoppel on the landlord to recover for improper use of premises 765 467. The obligation of the assigns and sub-tenants under cove- nants of the lessee restricting the use of the premises. . . 767 468. Storage of combustibles in the premises 771 469. The lease of premises for use as a house of prostitution.. 771 Xxii TABLE OF CONTENTS. 470. Leases of premises for the sale of intoxicating liquors 773 471. The use of the premises as a gambling house 775 472. The knowledge of the lessor that the premises are to he used for an immoral or illegal purpose 776 473. The leasing of premises for immoral purposes a crime.. 777 474. Criminal liability of the landloi*d 779 475. The construction of a statute providing for the equitable jurisdiction of leases for gambling purposes 779 CHAPTER XXI. THE RESPECTIVE RESPONSIBILITIES AND RIGHTS OF THE PARTIES AS TO THE CONDITION OF THE PREMISES. § 477. The fitness of the premises 782 478. The distinction between unfurnished and furnished dwel- lings and rooms 784 479. Fraudulent misrepresentations and concealment of defects 788 480. The responsibility of the landlord for a nuisance 792 481. The drainage of surface water 794 482. Contagious diseases 795 483. Defective plumbing and water supply 796 484. The joint liability for nuisance of the lessor and lessee. . . . 798 485. The repairs of that portion of the premises which is in the exclusive control of the lessor 799 486. The negligence of the landlord in making repairs 801 487. The landlord's liability in the case of apartment buildings and flats 803 488. Knowledge or notice of the defects by the landlord 804 489. The liability of the landlord for the condition of the out- side walls, roofs and cornices 806 490. The responsibility for injuries caused by ice and snow fall- ing from the roof 808 491. Falling sign under the control of the landlord 809 492. The landlord's duty to light halls and stairways 810 493. The landlord's liability for halls and stairways 812 494. The landlord's liability for the condition of elevators used by the tenants and others 817 495. Use of common hallways or stairs by a tenant is not con- tributory negligence 822 490. Snow and ice accumulating in pas.sage ways 822 497. The common use by the tenants of a yard of an apartment house 823 498. Defective coal hole covers and cellar gratings 824 499. The use of gas, natural or artificial, by the landlord 828 500. Negligence in the care of steam heating apparatus and chimneys 829 501. The negligence of the landlord as regards falling ceilings. 831 TABLE OF CONTENTS. Xxiii 502. The landlord's liability to a member of a lodge which is his tenant 832 503. The contributory negligence of the tenant 833 504. Repairs by the landlord or his agent before or after the accident 835 505. The liability of a tenant for negligence 836 506. Liability of tenants to one another for negligence 837 507. The liability for damages to a tenant on a lower floor by the overloading of an upper floor 839 508. Injuries caused by overflow of water on upper floor 839 509. The tenant's liability for fire 843 CHAPTER XXII. THE DUTIES OF THE PARTIES TO REPAIR. 5 510. The respective duties of the parties to the lease to make repairs 846 511. No implied covenant by the landlord to repair 847 512. Statutory provisions imposing the duty to repair on the landlord 851 513. Repairs and alterations in compliance with municipal reg- ulations 853 514. The landlord's promise to repair made during the term 855 515. The landlord's liability on his covenant to repair, 857 516. The landlord's right to notice of the necessity for repairs 860 517. The lessor's right of entry on the premises to make re- pairs 862 518. The negligence of the landlord in voluntarily making re- pairs 804 519. Repairs by the landlord as a condition precedent to the oc- cupation of the premises and payment of rent by the tenant 867 520. A covenant by the landlord to repair farm fences 869 521. The landlord's covenant to keep an elevator in constant re- pair 871 522. The landlord's covenant to rebuild 871 523. The lessor's liability to the servants of a lessee 872 524. The landlord's liability to the tenant for repairs made by the latter 873 525. The remedies of a tenant for the failure of his landlord to repair 876 526. Measure of damages on breach of a covenant by the lessor to repair 878 527. The lessor's defense 880 528. A covenant to repair— What is includes SSI 529. Covenants to repair run with the land SS4 530. The construction of a covenant to keep in repair by a ten- ant 885 XXIV TABLE OP CONTENTS. ■ 531. Notice by the landlord to the tenant to repair 889 532. The extent of the tenant's express obligation to repair... . 891 533. The tenant's covenant to return premises in condition as he received them 892 534. When an action on a covenant to surrender in good condi- tion or good repair accrues 897 535. The exception of ordinary wear and tear 899 536. The construction of the phrase "damages by the elements." 900 537. Exception in covenant of accident or inevitable accident. . 902 538. The tenant's covenant to deliver up a farm in good condi- tion 905 539. The making of alterations by a tenant may be a breach of of a covenant to repair 907 540. Repairs to be approved by the landlord 908 541. The right of the landlord to recover from a tenant who has agreed to make repairs 909 542. Covenants by the lessee to erect improvements 909 543. The tenant's conditional covenants to repair 911 544. The character of the building erected by the lessee 912 545. The rights of a sub-tenant under a covenant to repair made by the original lessor 913 546. The measure of damages for the lessee's failure to repair or leave premises in good condition 913 547. Evidence in actions on covenants to repair 914 548. Rules of pleadings 915 549. The duty of the landlord to build and repair fire escapes. . 915 CHAPTER XXIII. THE ESTOPPEL TO DENY THE TITLE. § 550. The general rule as to the tenant's estoppel 920 551. Necessity for the surrender of the possession by the tenant 922 552. When the surrender of the premises by the tenant is un- necessary 923 553. The tenant not having received possession is not estopped 924 554. After an eviction there is no estoppel 926 555. A lease obtained by fraud or mistake 927 556. Misrepresentation by the lessor of his title 930 557. A tenant is not estopped as to a stranger 931 558. No estoppel where leases are illegal or contrary to public policy 932 559. The tenant may show the expiration of the landlord's title 934 560. In what action the estoppel may be pleaded 937 561. To what matters the estoppel extends 939 562. The estoppel is applicable to a tenancy at will 940 563. In whose favor the estoppel will operate 940 564. Upon whom the estoppel is binding 943 TABLE OF CONTENTS. XXV 565. The rights of a person obtaining the possession by collu- sion 947 566. The estoppel as to sub-tenants 948 567. The vendee, in possession as a tenant is estopped 949 568. The tenant holding over 950 569. The tenant not estopped as to land of his landlord not in- cluded in the case 951 570. Leases created by estoppel 952 571. The general rule as to the purchase of outstanding encum- brances by the tenant 953 572. The purchase by a tenant of a tax title to the premises. . 954 573. The general rule as to the adverse possession of the land- lord 957 574. Tacking possession of several tenants 960 575. Encroachments by a tenant on the land of strangers to the lease 961 576. The creation of easements by the lessee 963 577. The effect of a disclaimer by the tenant 964 578. The attornment of a tenant to a stranger 967 579. What constitutes an actual ouster by the tenant 968 580. What constitutes adverse possession by the tenant as against his landlord 971 581. The right of the landlord to become a party in an action of ejectment against his tenant -^973 582. When a landlord of a tenant who is a defendant in eject- ment may be ousted 975 582a. The operation of a judgment in ejectment upon the tenants of the defendant 976 CHAPTER XXIV. THE OPTION OF A TENANT TO PURCHASE THE PREMISES. 583. The tenant's option to purchase — General considerations.. 977 584. The irrevocable character of an option 980 585. The mutuality of the option 981 586. The purchase price to be paid by the lessee 983 587. The option to purchase in the tenant, if not otherwise dis- posed of, or at price offered by any other person 986 588. The time within which the option must be exercised 987 589. The performance of conditions precedent by the lessee 991 590. The necessity for notice by the lessee to the lessor 993 591. The effect of the exercise of the option 994 592. TATien the lessee's option to purchase passes to his assignee 996 593. The passing of the right of an election from the lessor to the lessee 999 594. The disposition of the insurance money when premises are destroyed during the term 999 XXvi TABLE OF CONTENTS. 595. Equitable relief in the cases of options to purchase — Rem- edy of the tenant by specific performance 1000 597. Damage for the breach of a covenant to permit the lessee to purchase the premises 1003 CHAPTER XXV. THE TAXES AND INSURANCE. § 598. The liability of the lessor for taxes 1005 599. The taxation increased by the tenant's improvements 1007 COO. The landlord's liability for water rates 1008 601. The construction of a covenant to pay taxes 1012 C02. Covenant to pay taxes not one of indemnity 1013 603. The time of the levy, assessment or payment 1014 604. The time for the payment of the taxes 1016 605. Mode of the payment of the taxes by the lessee 1017 606. The validity of the taxes 1017 607. The exemption of the premises from taxation 1018 608. The aportionment of taxes between lessor and lessee 1019 609. The liability of an assignee or an undertenant to pay the taxes 1020 610. Extent of the assignee's liability for the taxes 1021 611. Whether a covenant to pay taxes binds the lessee to pay assessments for local improvements 1022 612. The lessee's covenant to pay assessments 1026 613. The payment of the taxes by the mortgagee of the leasehold 1030 614. The forfeiture of the lease for a breach of a condition or a covenant by the lessee to pay the taxes 1031 615. Equitable relief from forfeiture for non-payment of taxes by the tenant 1033 616. The landlord's lien for unpaid taxes 1033 617. The measure of the landlord's damages for the lessee's de fault in paying the taxes 1034 618. Personal liability to a judgment for taxes 1034 619. The tenant's covenant to insure 1035 620. The tenant's covenant to pay increased insurance 1037 621. Forfeiture in case of a breach of covenant to insure 1038 622. "When the covenant to insure runs with the land 1040 623. The measure of the damages for a failure to insure 1041 CIIArTER XXVI. THE ASSIGN ' ' NT OP THE IJ5ASE. § 624. The general rule as to tenant's power to assign or sublet. . 1044 625. Statutes requiring the consent of the landlord to the ten- ant's assignment or subletting 104G TABLE OF CONTENTS. XXVii 626. Sublease and assignment distinguished 1047 627. What constitutes an assignment or a sublease 1050 628. Whether a prohibition of assignment or subletting is a condition or a covenant 1054 629. The form of the consent of the lessor to an assignment or underletting 1056 630. A waiver of a breach not to assign 1057 631. The effect of an assignment by the lessee for the benefit of creditors 1060 632. Covenant not to assign except to a person of responsibility and respectability 1063 633. The effect of an involuntary assignment 1065 634. Who may take advantage of a breach of a covenant not to assign 106? 635. The presumption of an assignment from a stranger being in possession of the premises 1068 636. Agreements to assign leases 1070 637. The formal requisites of an assignment of a lease 1072 638. The validity of an assignment 1074 639. The knowledge of the contents of the lease by the assignee 1074 640. The implied warranty of the title by the assignor of the lease 1076 641. The assignee's rights as against the lessor 1078 642. The assignee's liability upon the covenants of the lease. . . 1079 643. The rights of the landlord to distrain after the assignment by the tenant lOgg 644. The liability of the assignee to his assignor 1084 645. The assignee's liability to the lessor for the rent 10S5 646. The liability of the assignee not In possession for rent 1087 647. Express covenants in the assignment 1088 648. The assignee's covenants to indemnify the assignor 1089 649. The effect of an assignment by the assignee 1090 The liability of the assignor for the rent after an assign- 650 ment 1092 651. The liabilities and rights of an undertenant as regards the original lessor 2095 652. The knowledge by an undertenant of the covenants and agreements which are binding on his lessor 1098 653. The nature and operation of a mortgage of the lease 1099 654. The assignment of a lease as security 1103 655. The renewal of a lease for the benefit of a mortgagee 1103 656. The liability of an equitable mortgagee or assignee to the lessor 1104 657. The recording assignments of leases 1107 658. The recording of mortgages of leasholds 1108 659. The assignment of subsequently accruing rents as distinct from the assignment of the reversion 1111 660. The rights and remedies of an assignee of the rents against the tenant 1114 c XXVlll TABLE OF CONTENTS, 661. The f oiin of an assignment of rents 1117 662. Priorities between the assignee of the rent and the as- signee of the reversion 1118 663. The duty of the assignee for creditors to lease the real property over which he has control 1118 664. The liability of the estate of a bankrupt lessee for the rent 1119 665. The acceptance of a lease by a trustee in bankruptcy 1120 66G. The duties of a receiver as a tenant 1122 667. The powers and duties of a receiver as a landlord 1123 668. The rights of a receiver in foreclosure to the rent 1126 CHAPTER XXVII. THT EVICTION OP THE TENANT. § 669. The scope of this chapter 1128 670. Eviction defined and classified 1129 671. Trespass and eviction distinguished 1131 672. The necessity of a legal possession in the tenant 1134 673. The intention of the landlord 1135 674. Actual eviction 1137 675. An action by the landlord to recover possession 1137 676. Constructive eviction arising from the interference with the tenant's beneficial use of the premises 1138 677. Illustrations of constructive eviction 1140 678. The lessor's failure to heat the premises properly 1142 679. The deprivation of easements 1145 680. The loss of the use of an elevator 1147 681. Shutting off water supply 1148 682. Presence of vermin and noxious smells 1149 683. The failure of the landlord to repair 1150 684. The interference by the landlord with sub-tenants 1154 685. The entry of the landlord to rebuild or to repair 1154 686. Use of adjoining lots 1117 687. The acts of strangers are not usually an eviction 1160 688. The acts of the municipal or public authorities 1162 689. Whether annoyances caused by other tenants are an evic- tion 1165 690. Objectionable occupancy of adjoining premises by peimis- sion of the landlord 1167 691. The actions of a servant or agent of the landlord 1169 692. An eviction by a paramount title 1171 693. The leasing ot the premises to a stranger 1175 694. An abandonment of the premises by a tenant 1175 695. The eviction of a tenant from a part of the premises.... 1177 69G. The demand and refusal of restoration to possession 1182 697. The effect of an eviction 1182 698. The measure of the damages for an eviction 1184 699. Limitation on an action for an eviction 1187 TABLE OF CONTENTS. Xxix 700. Equitable jurisdiction to restrain an eviction 1188 701. The right of the landlord to a bill of particulars 1189 702. The landlord's failure to deliver possession 1190 CHAPTER XXVIII. THE SURRENDER OF THE LEASE. 703. Tlie surrender of a lease defined ; 1192 704. The surrender of a written lease; when required to be in writing 1193 705. The language of a surrender in writing 119G 706. Surrender by implication or operation of law 1198 707. The execution of a new lease by the parties to the old lease as a surrender 1200 708. Setting aside a surrender in writing as obtained by fraud. . 1204 709. The effect of a surrender on the undertenant 120.5 710. The delivery of the keys as evidence of a surrender 1206 711. The surrender of a portion of the premises 1211 712. The acceptance of an assignee of the lease as a new tenant 1211 713. The effect of a re-letting by a landlord to a stranger 1213 714. A surrender by or to an agent of the landlord, or the tenant 1218 715. A surrender by a tenant becoming a vendee 1219 716. Payment to be made by the landlord on a surrender 1220 717. A new lease made with undertenants 1221 718. The possession of the premises in the lessee is necessary for a valid surrender 1221 719. The assent of the lessor to the surrender 1222 720. The tenant in possession after a delivery of the keys 1223 721. A surrender made by joint lessees 1224 722. To whom a surrender must be made 1225 723. A surrender upon a condition 1226 724. The consideration for an agreement in writing to surren- der 1226 725. The merger of the term with the reversion 1228 726. The doctrine of merger is applicable only to concurrent es- tates 1232 727. When a merger does not take place 1233 728. The resumption of the possession by a landlord as an ac- ceptance of a surrender 1234 729. The destruction of the written lease 1237 730. The effect of a surrender upon the lease 1238 CHAPTER XXIX. THE DUTIES OF THE PARTIES AS REGARDS FIXTURES. 732. The topic of fixtures generally 1242 733. Common law as to chattels annexed 1243 734. General rules for determining what are fixtures 1245 XXX TABLE OP CONTENTS. 735. The intention of the parties to the lease 1247 736. The modem rule as to trade fixtures 1249 738. Machinery and mechanical apparatuses as trade fixtures. . 1254 739. Domestic fixtures 1256 740. Farming fixtures belonging to tenants 1258 741. Personal property which is held by a tenant under a condi- tional bill of sale 1261 742. Chattels used by a tenant in improving or repairing the premises 1261 743. The injury to the premises by the removal 1262 744. The necessity for removing fixtures during the term 1264 745. Exception to the rule that fixtures must be removed during the term 1268 746. Appraisal or arbitration to determine the value of fixtures. 1271 747. Meaning of end of the term 1275 748. The lessor's option to renew or pay for the lessee's improve- ments 1276 749. A landlord's agreement to pay for the fixtures and improve- ments of the tenant 1277 750. Compensation to the lessee for his improvements in case of the sale of premises 1279 751. The meaning of the word "improvements" 1280 752. The lessor's covenant to pay for improvements runs with the land 1283 753. Conditions precedent to the right of the tenant to remove structures erected by him 1285 754. The taking of a new lease by the tenant 1286 755. Covenants which give the landlord a lien for his rent on biuldings of a tenant 1290 756. The lessee's lien for the value of his improvements 1291 757. Improvements by the landlord prior to the entry of the tenant 1293 758. The rights of an assignee or mortgagee of the tenant 1293 759. The tenant's sale of his fixtures when within statute of frauds 1295 760. The rights of an assignee and mortgagee of the landlord. . . 1295 761. The liability of a landlord for personal property of his tenant left on the premises at the expiration of the lease ]299 762. The remedies of the parties 1299 703. The measure of damages to the tenant for the conversion of his chattels by the landlord 1301 764. The measure of the damages for tiie breach of the land- lord's covenant to make improvements 1302 765. The proof of a custom in respect to fixtures 1303 766. The right of a tenant who has covenanted lo surrender in good condition to remove his improvemnts 130?. TABLE OP CONTENTS. XXXI CHAPTER XXX. THE TENANT'S EMBLEMENTS. § 7C7. Emblements defined; the right of the tenant to emblements 1305 768. The determination of an uncertain term by the act of the tenant 1308 7G9. The tenant's right to remove crops where his term is cer- tain 1311 770. The proof of custom in relation to the tenant's crops 1313 771. The distinction between emblements and the cost of pre- paring the land 1315 772. The right of the incoming tenant to growing crops 1315 773. The tenant's title to the crops during the term 1317 774. Title to crops after severance during the term 1321 775. A covenant by the tenant not to remove crops 1321 776. The rights of a sub-tenant to emblements 1322 777. The right of a purchaser of a growing crop 1323 778. Title to crops as against mortgagee and purchaser at a fore- closure sale 1324 779. The knowledge by a tenant of an action to foreclose his landlord's title 1326 780. Title to crops as against judgment creditors 1327 781. The tenant's title to an increase of live stock on the prem- ises 1329 782. The effect on emblements of the forfeiture of a lease by the breach of a condition 1330 782o. The right of an outgoing tenant to the manure made on a farm 1331 783. The right to manure which was made on non-agricultural land 1334 784. The tenant's covenant as to the disposal of the manure. . . 1334 785. Trees growing upon the soil during the tenancy 1335 786. The remedy of the landlord 1337 787. The criminal element in the tenant removing a crop 1338 CHAPTER XXXI. THE DESTRUCTION OF THE PREMISES DURING THE TERM. § 788. Effect of destruction of the premises by fire on tenant's lia- bility to pay rent 1339 789. The destruction of the premises which are a floor or apart- ment 1342 790. The tenant's right to equitable relief 1344 791. The surrender of the premises by the tenant 1346 792. The construction of express exceptions to the common law rule 1348 793. The effect of a covenant by the landlord to repair or build 1349 XXXll TABLE OP CONTENTS. 794. The destruction of the premises occurring before the entry by the tenant 1351 795. Deprivation of use of the premises by casualties of war 1352 796. General rules which are observed in construing the statute 135S 797. What constitutes unfitness for occupancy under the New York statute 1354 798. The accrual of the rents 1357 799. Negligence or fault of the tenant 1358 800. The destruotion must be sudden and unexpected to bring the case under the statute 1359 801. Waiver of the statutes by the parties 1360 CHAPTER XXXII. THE OPTION TO RENEW THE LEASE. 802. The scope of the chapter 1361 803. The extension of a lease and a renewal distinguished.... 1362 804. The unilateral character of a covenant for a renewal 1365 805. Stipulations to renew. When they are void for uncertainty 1367 806. The terms and covenants necessary to be inserted in the re- newal lease 1308 807. The invalidity of a clause permitting indefinite renewals. . 1373 808. Time when an option for a renewal of a lease must be exer- cised 1376 809. The necessity for and the character of notice 1377 810. The specific performance of a covenant to renew 1382 811. Waiver by the lessee of his privilege to renew 1385 812. Conditions precedent to a renewal 1388 813. Waiver of a breach of a covenant in the old lease 1389 814. The rent of a renewal to be determined by appraisal 1389 815. The covenant to renew runs with the land 1391 815a. The tenant's equitable right to a reversal 1892 816. The right of the personal representative of the lessee to a renewal 1393 817. The exclusive option in the landlord to renew the lease. . . . 1393 818. Option of renewing le^se or paying for tenant's improve- ments 1394 819. A renewal by an endoisement on the lease 1395 CHAPTER XXXIII. THE LIEN OF THE LANDLORD FOR RENT AND ADVANCES. 820. General rules as to liens by statute 1400 821. When the relationship of landlord and tenant must be proved 1402 822. Lien for rent created by the lease 1403 823. The construction of liens created by the lease 1405 TABLE OF CONTENTS. XXX ill 824. When the lien first attaches 1408 825. The necessity for filing or recording 140!) 826. The assignability of a landlord's lien 1410 827. The nature of the indebtedness 1413 828. What will constitute an adva-ncement to the tenant within the statute 1415 829. To what property the statutory lien attaches 1419 830. The inclusion in the landlord's lien of the goods of sub- tenants 1423 831. The ownership and possession of the property subject to a lien 1424 832. The removal and sale of the property which is subject to the lien 1425 833. The distinction between the common law and equitable doctrines regarding liens on after acquired property 1426 834. The liability of bona fide purchasers for value of a crop.. 1429 835. Priorities between liens of the landlord and liens of chat- tel mortgagees 1433 836. The renewal of a lease giving a lien which is prior to a mortgage 1436 837. The priority of the landlord's lien over the claims of third persons for supplies 1437 838. Priorities as between the landlord's lien and the lien of an attaching creditor 1439 839. General rule as to the landlord's priority over an execu- tion creditor 1440 840. The extent of the priority of the landlord's lien over that of an execution creditor 1442 841. Priority of a factor's lien over that of a landlord 1445 842. Exemption from execution 1446 843. The subordination of mechanics' liens to rent liens 1447 844. The subordination of the title of a vendor on condition 1448 845. The taking of additional security for the rent as a waiver of the lien 1449 846. The waiver of lien by the landlord by" conduct generally. .1450 847. The waiver of the lien by an agent _,...1453 848. The termination of the lien 1454 849. The remedy of the landlord against one purchasing prop- erty subject to his lien 1455 850. Action by the landlord in conversion or assumpsit 1457 851. The statutory mode of enforcing a lien 1459 852. The remedy of the purchaser of chattels subject to the lien, against the tenant 1461 853. Injunction to protect the lien of the landlord 1431 854. Grounds for granting an attachment 1464 855. The effect of an attachment 1466 85B. The cumulative character of the remedy by attachment 1466 857. What property may be attached by the landlord 1467 Table of Cases Cited. [EEFEEENCES ABE TO PAGES.] Abadie r. Berges (41 La. Ann. 281), 1165, 1378. Abby V. Billups (35 Miss. 618), 63, 882,892. Abby V. Shiner (5 Tex. Civ. App. 287), 578. Abbey, etc. Ass'n v. Welland (48 Cal. 614), 111. Abbott V. Boswortb (36 Ohio St. 605), 335. Abbott V. Cromartie (72 N. C. 292), 929. Abbott V, Parsons (3 Burr. 1807), 1201. Abbott V. Seventy-six Land & Wa- ter Co. (87 Cal. 323), 1370. Abercrombie v. Redpath (1 Iowa, 111), nil. Abeel v. Radcliffe (13 Johns. (N. Y.) 297), 561, 1367. Aberdeen Coal Co. v. Evansville (14 Ind. App. 621), 1235. Abingdon v. Butler (2 Cox, 260), 473. Abington v. Steinberg (86 Mo. App. 639), 1460. Abraham v. Nicrosi (87 Ala. 173), 1422,1457. Abraham v. Tape (60 Md. 317), 1080. Abrams v. Sheehan (40 Md. 446), 1117,1434. Abrams v, Taylor (24 111. 102), 549. Abrams v. Watson (59 Ala. 524), 564, 666, 669, 687, 697, 700. Academy of Music v. Hackett (2 Hilt. (N. Y.) 217), 638. Accidental D. Ins. Co. v. Mac- Kenzie (5 L. T. 20), 926. Accles V. Mills (67 L. J. P. C. 25 [1898] A. C. 360), 617. Ackland v. Lutley (9 Ad. & E. 879), 347. Acocks V. Phillips (5 Hon. 183), 634. Acquackanonk Water Co. v. Wat- son (29 N. J. Eq. 366), 431. Acton V. Blundell (12 M. & W. 348, 349), 432. Adair v. Bogle (20 Iowa, 238), 695. Adams, In re (124 Fed. Rep. 142), 1120. Adams v. Adams (4 Watts (Pa.) 160), 49. Adams v. Bigelow (128 Mass. 365), 539. Adams v. Brevieton (3 H. & J. (Md.) 124), 717. Adams v. Burke (21 R. I. 126), 1093. Adams v. Cairns (85 L. T. 10), 155. Adams v. Clark r2 W. N. C. (Pa.) 429), 748. Adams v. Cohoes (127 N. Y. 175), 156, 158, 181. Adams v. Fletcher (17 R. I. 127), 828. Adams v. Gibney (4 M. & P. 491), 606. Adams v. Goddard (48 Me. 212), 1040, 1205, 1294, 1301. XXXVl T.iBLE OF CASES CITED. [references are to pages.] Adams v. Kensington Vestry (54 L. J. Ch. 87), 996. Adams v. McKesson's Ex. (53 Pa. St. 81), 308. Adams v. Medsker (25 W. Va. 127), 342. Adams v. Power (52 Miss. 828), 100. Adams v. Smith (19 Nev. 259), 1100,1306. Adams v. State (87 Ala. 89), 311. Adams v. Werner (120 Mich. 432), 1131,1156. Aderholds v. Blumenthal (95 Ala. 66), 1432. Adler v. Lowenstein (102 N. Y. Supp. 492), 489. Adler v. Mendelson (74 Wis. 464), 1224. Adriance v. Hafkemeyer (39 Mo. 134), 558. Adsit V. Kaufman (121 Fed. Rep. 355), 573. Agar V. Winslow (123 Cal. 587), 1136,1142. Agard v. King (Cro. Eliz. 775), 130. Agate V. Lowenbein (57 N. Y. 604), 712. Ahern v. Steele (115 N. Y. 203), 792, 805. Aiken v. Blaisdell (41 Vt. 655), 776. Aikens v. Stadell (9 Kan. App. 298), 1425. Aikin v. Perry (119 Ga. 260), 847. Ainsworth v. Ritt (38 Cal. 89), 1342. ■ Airey v. Weinstein (54 Ark. 443), 1435. Alabama, etc. Co. v. Oliver (78 Ala. 158), 386, 1118. Alabama Land Co. v. Kyle (99 Ala. 474), 960. Albans v. Battersby (47 L. J. Q. B. 571), 749. Albert v. State (66 Md. 337), 794,. 805. Albin V. Lord (39 N. H. 196), 24. Albin V. Riegel C40 Ohio St. 339), 1328. Albright v. Mills (86 Ala. 324)," 1317. Alcorn v. Morgan (77 Ind. 184), 156. Aklerson v. Marshall (7 Mont. 288), 920, 965. Alderson v. Miller (15 Gratt. (Va.) 279), 924. Aldred's Case (9 Rep. 586), 409. Alexander v. Carew (13 Allen (Mass.) 70), 678. Alexander v. Bailey (2 Lea (Tenn.) 639), 904. Alexander v. Bland (3 Tenn. 431)^ 349. Alexander v. DeKernel (81 Ky. 345), 351. Alexander v. Dorsey (12 Ga. 12), 1155,1343. Alexander v. Gardner (96 S. W. Rep. 818), 274. Alexander v. Gibbon (118 N. C. 796), 961. Alexander v. Jameson (5 Binn. (Pa.) 238), 332. Alexander v. Zeigler (36 So. 536), 315. Alexandria Canal Co. v. Swann (5 How. 83), 63. Alfred v. Vickery (Car. & M. 280), 170, 174. Alger V. Kennedy (49 Vt. 109), 1142,1152. Alleman v. Vink (28 Ind. App. 142), 139. Allen V. Anthony (1 Mer. 287), 497. Allen V. Bartlett (20 W. Va. 46), 140. Allen V. Bates (3 L. J. Ex. 39), 524. TABLE OF CASES CITED. XXXVU [references are to pages.] Allen V. Bryan (5 Bar. & Cres. 512), 560, 1112. Allen V. Calvert (2 East, 376), 241. Allen V. Chatfield (8 Minn. 435), 920. Allen V. Culver (3 Denio (N. Y.) 290), 491, 867, 877, 882, 884, 1080. Allen V. Dent (4 Lea (Tenn.) 676), 1014, 1032. Allen V. England (3 F. & F. 49), 301. Allen V. Fosgate (11 How. Pr. 218), 331. Allen V. Gales (74 Vt. 376), 1114. Allen V. Hall (61 Neb. 256), 491, 922,1111. Allen V. Hill (Cro. Eliz. 238), 229. Allen V. Hooker (25 Vt. 137), 760. Allen V. Houston Ice & Brewing Co. (97 S. W. Rep. 1063), 1419. Allen V. Jaqulsh (21 Wend. 628), 156. Allen V. Kelly (18 R. I. 197), 774. Allen V. Macon, D. & S. R. Co. (33 S. E. Rep. 696), 579. Allen V. Mansfield (82 Mo. 68S), 195. Allen V. Mooney (130 Mass. 155), 1249. Allen V. Paul (24 Gratt. (Va.) 332), 958, 965, 966. Allen V. Pryor (3 A. K. Marsh. (Ky.) 305), 519. Allen V. St. Louis, I. M. & S. R. Co. (137 Mo. 205), 434. Allen V. Scott (21 Pick. (Mass.) 29), 1115. Allen V. Van Houten (19 N. J. L. 47), 49. Allen V. Whetstone (35 La. Ann. 846), 361. Allen V. Wooley (1 Blackf. (Ind.) 148), 1115. Allison Mfg. Co. v. McCormick (118 Pa. St. 519), 904. Almy V. Green (13 R. I. 350), 776, 1093. Alschuler v. Schiff (59 111. App. 51), 1222. Alsup v. Banks (68 Miss. 664), 42, 1214,1215. Alt V. Gray (67 N. Y. Supp. 411), 258,686. Althorpe v. Wolfe (22 N. Y. 355), 843. Alton V. Railroad Co. (19 C. B. (N. S.) 213), 913. Alve V. Henderson (16 B. Mon. (Ky.) 131), 71. Alwood V. Mansfield (33 111. 452), 920. Alworth V. Gordon (81 Minn. 445), 150, 158, 174, 489. Amelung v. Seekamp (9 Gill & J. (Md.) 474), 724. American Bonding Co. v. Pueblo Inv. Co. (150 Fed. Rep. 17), 1013.1238. American Express Co. v. Smith (33 Ohio St. 511), 904. American Ins. Co. v. Chicago R. Co. (74 Mo. App. 89), 1054, 1070. American Mortg. Co. v. Merrick Const. Co. (100 N. Y. Supp. 561), 530. American Mortgage Co. v. Sire (92 N. Y. Supp. 182), 1126. American Strawboard Co. v. Halde- man Paper Co. (27 C. C. A. 634), 742. Ames V. Fletcher (17 R. I. 137), 825. Ames V. Miller (65 Neb. 204), 393. Ames V. Trenton Brewing Co. (56 N. J. Eq. 309), 1248. Amick V. Brubaker (101 Mo. 473), 182, 191, 220. Amory v. Kannofsky (117 Mass. 35), 1195, 1199, 1238. Amsden v. Atwood (69 Vt. 527), 140, 460, 1185. Amsden v. Floyd (60 Vt. 386), 221. Amsley v. Woodward (6 B. & C. 579), 1058. xxxvm TABLE OP CASES CITED. [REFEBENCES ABE TO PAGES.] Anderson's Appeal (3 Barr. 218), 1443. Anderson v. Ammonett (9 Lea (Tenn.) 1), 1291. Anderson v. Anderson (104 Ala. 428), 938, 950. Anderson v. Brewster (44 Ohio St. 576), 234. Anderson v. Brinser (129 Pa. St. 376), 497. Anderson v. Chicago Marine & Fire Ins. Co. (21 111. 601), 1180. Anderson v. Connor (87 N. Y. Supp. 449), 100. Anderson v. Critcher (11 Gill & J. (Md.) 450), 335, 390. Anderson v. Darby (1 Nott & Mc- Cord, 394), 10. Anderson v. Dickie (26 How. Pr. (N. Y.) 105), 794. Anderson v. Hapler (34 111. 436), 685, 1300, 1336. Anderson v. Henry (46 W. Va. 319), 1401. Anderson v. Midland Ry. Co. (3 E. & E. 614), 192. Anderson v. Miller (96 Tenn. 35), 771, 1098. Anderson v. Miller (15 Gratt. (Va.) 279), 930. Anderson v. Nesmith (7 N. H. 167), 685. Anderson v. Oppenheimer (49 L. J. Q. B. 708), 1153. Anderson v. Prindle (23 Wend. (N. Y.) 616), 179. Anderson v. Robbins (82 Me. 422), 539. Anderson v. Steinrich (74 N. Y. Supp. 920), 302. Anderson v. Straub (98 111. 485), 1325. Anderson v. Swift (106 Ga. 748), 1277. Anderson v. Winton (137 Ala. 432), 457, 1180. Anderton v. Milner (59 L. J. Ch. 765), 608. Andrew v. Carlisle (4 Colo. App. 336), 337, 470. Andrew v. Newcomb (32 N. Y. 417), 1320. Andrew v. Stewart (81 Ga. o3), 1423. Andrew v. Day Button Co. (132 N. Y. 348), 1255. Andrews v. Erwin (25 Ky. Law Rep. 1791), 262. Andrews v. Hailes (2 El. & Black, 349), 961, 962. Andrews v. Marshall Creamery Co. (92 N. W. Rep. 706), 1378. Andrews v. Minter (88 S. W. Rep. 822), 694. Andrews v. Williamson (193 Mass. 92), 814. Andrews Mfg. Co. v. Porter (112 Ala. 381), 1425. Andrus v. Bradley-Alderson Co. (117 Mo. App. 322), 871. Angel V. Duke (44 L. J. Q. B. 78), 382. Angell V. Randall (16 L. T. 489), 526. Angres Boom Co. v. WTiitney (26 Mich. 52), 451. Anheuser-Busch Brew. Ass'n v. Peterson (41 Neb. 897), 40, 794. Anthony v. New York P. & B. R. Co. (162 Mass. 60), 391. Anthony v. Smith (9 Humph. (Tenn.) 508), 105. Anton i v. Belknap (102 Mass. 193), 210, 1253, 1269. Anzolone v. Paskusz (96 App. Div. 188), 456, 597. Aperson v. Moore (30 Ark. 56, 58), 1426, 1428. Appleton V. Ames (150 Mass. 34), 212, 223, 1295, 1240. Api)leton V. Campbell (2 Car. & P. 347), 772. TABLE OF CASES CITED. xxxix [references are to pages.] Appleton V. Marx (102 N. Y. Supp. 2), 894. Appleton V. O'Donnell (173 Mass. 398), 338, 519, 573. Applewhite v. Nelms (71 Miss. 482), 1423. Arbenz v. Exley (52 W. Va. 476), 140, 848, 1340. Arbuckle v. State (32 Ind. 34), 1337. Arcade Inv. Co. v. Gierlet (109 N. W. Rep. 250), 178. Arcade Realty Co. v. Tunney (101 N. Y. Supp.) 593), 524. Arden v. Sullivan (14 Q. B. g32), 147, 196. Ardesco Oil Co. v. Richardson (63 Pa. St. 162), 886. Arding v. Economic Printing & Publishing Co. (79 L. T. 420), 1030. Ards V. Watkins (Cro. Eliz. 637), 541. Ardsley Hall Co. v. Sirrett (86 N. Y. Supp. 792), 1147. Arent v. Bone (23 La. Ann. 387), 390. Argall V. Pitts (78 N. Y. 239), 32. Arguelles v. Wood (1 Fed. Cas. 520), 547. Armsby v. Woodward (6 Barn. & C. 519), 642, 645, 647, 1068. Armstrong v. Maybee (17 Wash. 24), 883. Arkwright v. Colt (2 Y. & Coll. C. C. 4), 1041. Armiger v. Clark (Bumb. Ill), 1382. Armory Board, In re (29 Misc. 174), 57. Armour Packing Co. v. Des Moines Pork Co. (116 Iowa, 723), 1235. Armstrong v. Penn. R. Co. (38 N. J. Law, 1), 116. Armstrong v. Walker (9 Lea (Tenn.) 156), 1429. Armstrong v. Wheeler (9 Cow. (N. Y.) 88), 1093. Arnold v. Bennett (92 Mo. App. 156), 679. Arnold v. Bidgood (Cro. Jac. 318), 26,55. Arnold v. Clark (45 N. Y. Super, Ct. 252), 860. Arnold v. Phillips (59 111. App. 213), 1400. Arnold v. R. Rothschild's Sons Co. (164 N. Y. 562), 248. Arnold v. Skale (Noy. 149), 688. Arnot V. Alexander (44 Mo. 25), 1368, 1382, 1391. Arnson v. Spawn (2 S. D. 269), 682. Arques v. Wasson (51 Cal. 620), 1404. Arthur v. Bascon (28 Leg. Int. 284), 349. Arthur v. Harty (40 N. Y. Supp. 1091), 1029. Artt V. New York (28 N. Y. Su- per. Ct. 248), 140. Ascarete v. PfafE (78 S. W. Rep. 974), 1046. Ashbrook v. Dale (27 Mo. App. 649), 772. Ashby V. Ashby (59 N. J. Eq. 536), 1263. Ashby V. Wilson (69 Law J. Ch. 47), 744. Ashley V. Pease (1§ Pick. (Mass.) 268), 439. Ashley v. Young (79 Miss. 129), 52. Ashley v. Warner (11 Gray (Mass.) 43), 192. Ashton V. Golden Gate Lumber Co. (58 Pac. Rep. 1), 937. Aslin V. Summersett (1 B. & Aid. 135), 171. Aspdin V. Austin (5 Q. B. 671), 603. Astor V. L'Amoreux (4 Sandf. (N. Y.) 524), 1090. xl TABLE OF CASES CITED. [references are to pages.] Astor V. Miller (2 Paige (N. Y.) 68), 1101. Astor V. Turner Til Paige (N. Y.) 436), 28, 34. Atchison, etc. R. Co. v. Morgan (42 Kan. 23), 1247. Atherstone v. Bostock (2 Man. & G. 511), 135. Atkins V. Chilson (7 Mete. (Mass.) 298), 723. Atkins V. Chilson (11 Mete. (Mass.) 2), 663. Atkins V. Sleeper (7 Allen (Mass.) 487), 348. Atkinson v. Coatsworth (8 Mod. 30), 953. Atkinson v. Dixon (96 Mo. 588), 1271. Atkinson v. Morrison (3 Oreg. 332), 946. Atlantic Dock Co. v. Leavitt (54 N. Y. 25), 729. Atlantic Product Co. v. Dunn (55 S. E. Rep. 299), 1376. Attaway v. Hoskinson (37 Mo. App. 132), 1405. Attersoll v. Stevens (1 Taunt. 183), 721. Attoe V. Hemmings (2 Bulst. 281), 641. Attorney General v. Stephens (6 De G., M. & G. Ill), 511. Attorney General v. Tomline (43 L. T. Rep. 486), 962. Atwood V. Norton (31 Ga. 507), 378. Aubuchon v. McKnight (1 Mo. 312), 343. Audenreid v. Hull (45 Mo. App. 202), 1466. Auer V. Penn (99 Pa. St. 370), 1214. Auer V. Vahl (129 Wis. 635), 785. Auginbaugh v. Coppenheffer (55 I'a. St. 347), 702. Aull Savings Bank v. Aull (80 Mo. 199), 573. Ault Wooden-Ware Co. v. Baker (26 Ind. App. 374), 293. Austin V. Ahearne (61 N. Y. 6), 80,482. Austin V. Field (7 Abb. Pr. N. S. 29), 1342. Austin V. Harris (10 Gray (Mass.) 296), 1078. Austin V. Hudson R. R. R. Co. (25 N. Y. 340), 722. Austin V. Thomson (45 N. H. 113), 223, 579, 1053, 1096. Austin V. Welch (72 S. W. Rep. (Tex.) 881), 1435. Austin V. Whitlock (1 Munf. (Va.) 487), 332. Austin V. Wilson (46 Iowa, 362), 965. Autrey v. Autrey (94 Ga. 579), 51. Auworth V. Johnson (5 Car. & P. 239), 138, 851. Auxvasse Milling Co. v. Cornet (85 Mo. App. 251), 1460. Avan V. Frey (69 Ind. 91), 693. Averill v. Taylor (8 N. Y. 44), 244. Avery v. Cheslyn (3 Ad. & El. 75), 1256. Avery v. Dougherty (102 Ind. 443), 697, 699, 1132. Avery v. New York Central & H. R. R. Co. (7 N. Y. Supp. 341), 440. Avery v. Scott (8 Exch. 500), 1271. Aydlett v. Neal (114 N. C. 7), 369. Aydlett v. Pendleton (114 N. C. 1), 369. Aylet V. Dodd (2 Atk. 239), 765. B. Babcock v. Kennedy (1 Vt. 457), 30. Babcock v. Scoville (56 111. 461), 543, 1087. Backenstoss v. Stahler's Adm'r (23 Pa. St. 251). 1316, 1329. TABLE OF CASES CITED. Xli [REFERENCES ARE TO PAGE^.] Backhouse v. Mohun (3 Swanst. 434), 982. Backus V. Sternberg (59 Minn. 403), 152. Bacon v. Bowdoin (22 Pick. (Mass.) 401), 243, 244, 250, 397, 1365. Bacon v. Brown (9 Conn. 334), 139. Bacon v. Carr (112 Iowa, 193), 1454. Bacon v. Howell (60 Miss. 362), 1403. Bacon v. Park (19 Utah, 246), 1032. Bacon v. Parker (137 Mass. 309), 379,382. Bacon v. Taylor (Kirby (Conn.) 398), 15. Bacon v. Western Furniture Co. (53 Ind. 229), 632, 638. Badcock v. Hunt (60 L. T. 314), 1009. Badger Lumber Co. v. Malone (8 Kan. App. 121), 241. Badger Lumber Co. v. Marion Wa- ter Supply Co. (48 Kan. 182), 442. Bagley v. Peddie (16 N. Y. 469), 588. Bailey v. Campbell (82 Ala. 342), 258, 955. Bailey v. Delaplaine (1 Sandf. (N. Y.) 5), 1199. Bailey v. Dunlap (138 Ala. 415), 123. Bailey v. Foster (3 C. B. 215), 175. Bailey v. Schnitzius (23 N. J. Eq. 235), 441. Bailey v. Seigel, etc. Co. (54 Mo. App. 50), 680. Bailey v. Snyder (13 S. & R. (Pa.) 160), 457. Bailey v. Ward (32 La. Ann. 839), 195. Bailey v. Wells (8 Wis. 141), 1193. Bailey v. White (41 N. H. 337), 336. Eailie v. Plant (11 Misc. Rep. 30), 1379. Bailie v. Rodway (27 Wis. 172), 496. Bain v. Clark (10 Johns. (N. Y.) 424), 1309. Baines v. Burbridge (15 La. Ann. 628), 100. Baird v. Evans (^0 111. 29), 868. Baird v. Milford Land, etc. Co. (89 Cal. 552), 274, 371. Bajus V. Syracuse, etc. R. Co. (103 N. Y. 316), 915. Bakeman v. Pooler (14 Wend. (N. Y.) 637), 536. Baker v. Allen (66 Ark. 271), 836. Baker v. Cotney (38 So. Rep. (Ala. 1905) 131). 1457. Baker v. Fessenden (71 Me. 293), 1248. Baker v. Hoag (3 Barb. (N. Y.) 208), 1299. Baker v. Hotzzaffel (4 Taunt. 45), 576, 1339, 1340. Baker v Jones (38 Hun (N Y) 625), 37. Baker v. Jordan (3 Ohio St. 438), 1316. Baker v. Kenney (69 N. J. L. 180), 160, 163. Baker v. Kinney (54 Atl. Rep. (N, J.) 526), 150, 163. Baker v. McInturfE (49 Mo. App. 505), 1308. Baker v. McClurg (96 111. App. 165), 1252. Baker v. Pratt (15 111. 5681,1195. Baker v. Saunderson (3 Pick. (Mass.) 348), 680, 683. Baker v. White (2 Term. Rep. 159), 171. Baker v. Winfrey (15 B. Mon. (Ky.) 504), 10. Balch V. Patten (45 Me. 41), 576. xlii TABLE OF CASES CITED. [references ABE TO PAGES.] Baldwell v. Center (30 Cal. 539), 250. Baldwin v. McCarthern (94 Ga. 622), 1438. Baldwin v. Morgan (43 Hun (N. Y.) 355), 412, 752. Baldwin v. Thibaudeau (17 N. Y. Supp. 532), 585. Baldwin v. Walker (21 Conn. 168), 30, 486. Bales V. Gilbert (84 Mo. App. 675), 1271,1274. Ball V. Allen (15 Mass. 433), 340. Ball V. Cullimore (2 C. M. & R. 120), 215. Ball V. Dunsterville (4 T. R. 313), 332. Ball V. First National Bank (SO Ky. 501), 49. Ball V. Lively (2 J. J. Marsh, (Ky.) 181), 924. Ball V. Lively (4 Dana (Ky.) 369), 471. Ball V. Montgomery (2 Ves. Jr. 194), 22. Ballance v. City of Peoria (180 111. 29), 463, 948. Ballard v. Johnson (114 N. C. 141), 1438. Ballard v. Mayfield (107 Ala. 306), 1411,1412. Ballard v. Stephen (92 Ala. 616), 1464. Ball Brown & Co. v. Sledge (82 Miss. 749), 1420, 1446. Ballock v. Domitt (6 T. R. 650), 1340. Bally V. Wells (Wilmot, 344), 1285. Balser v. Barcraft (76 Ala. 414), 960. Baltimore, etc. Co. v. McCutcheon (13 Pa. St. 1), 61. 65. Baltimore & S. P. R. Co. v. Hack- ett (87 Md. 224), 686. Baltimore & O. R. Co. v. West (57 Ohio St. 161), 146, 383. Baltimore & O. R. R. Co. v. Wins- low (18 App. D. C. 438), 329. Baltimore Dental Ass'n v. Fuller (101 Va. 627), 140, 167. Bamman v. Binzen (142 N. Y. 636), 999, 1397. Banbury v. Sherin (4 S. D. 88), 163. Bandy v. Cartwright (8 Exch. 933), 698. Banergee v. Hevey (5 Mass. 11), 97. Bank v. Getchett (59 N. H. 281), 520. Bank v. Warner (22 Kan. 537), 122. Bank v. Wise (3 Watts (Pa.) 394), 539. Banker v. Braker (9 Abb. N. C. (N. Y.) 411), 1374. Bank, etc. v. Trumbull (35 How. Pr. (N. Y.) 8), 537. Bank of America v. Banks (101 U. S. 240), 24. Bank of Commonwealth v. Mc- Chord (4 Dana (Ky.) 191), 343. Bank of Hamilton v. Dudleys Les- see (2 Pet. (U. S.) 492), 48, 53. Bank of Louisville v. Baumeister (87 Ky. 6), 978. Bank of Pennsylvania v. Wise (3 Watts (Pa) 394), 495. Bank of Virginia v. Hedges (38 Tex. 614), 961. Bank of Virginia v. Poitiaux (3 Rand. (Va.) 136), 65. Banner, In re (149 Fed. Rep. 936), 586. Banning v. Fades (6 Minn. 402), 342. Baptist Church v. Bigelow (16 Wend. (N. Y.) 28), 382. Baragiano v. Villani (117 111. App. 372), 328. Barbee v. Greenberg (57 S. B. Rep. 125), 1392. TABLE OF CASES CITED. xliii Barbee v. Shannon (1 Ind. Ter. 199), 679. Barber v. Clark (4 N. H. 380), 447. Barber v. Stone (104 Mich. 90), 646,649. Barchman v. Byrne {S3 Cal. 28), 27. Barclay v. Morrison (16 S. & R. (Pa.) 129), 549. Barclay v. Steamboat Co. (6 Phila. 558), 616, 1391. Bardlet v. Walker (93 111. App. 609), 1214. Barker v. Allen (5 H. & N. 61), 386. Barker v. Barker (3 Car. & C. 557), 862. Barker v. Bradley (42 N. Y. 316), 232. Barker v. Clark (4 N. H. 380), 445. Barker v. Fitzgerald (204 111. 325), 470. Barker v. Hollis (50 Ala. 411), 139. Barkley v. Holt (84 N. Y. S. 957), 103. Barkley v. McCue (25 Misc. Rep. 738), 103, 1213. Barkman v. Barkman (107 111. App. 332), 922. Barlin v. Commonwealth (110 Pa. St. 454), 1445. Barlow v. Dahm (97 Ala. 414), 964. Barlow v. Jones (117 Ga. 412), 1095. Barlow v. Rhodes (1 C. & M. 439), 416. Barlow v. St. Nicholas Nat. Bank (63 N. Y. 399), 1015. Barlow v. Wainwright (22 Vt. 88), 220, 1208, 1222, 1239. Barium v. Berger T125 Mich. 504), 219. Barnard v. Poor (21 Pick. (Mass.) 378), 844. d [references are to pages.] Barnes v. Northern Trust Co. (169 111. 112), 486, 1092, 1093. Barnes v. Strohecker (17 Ga. 340), 868. Barnett v. Barnes (73 111. 216, 217), 466, 555. Barnett v. Plummer (19 W. N. C. (Pa.) 117), 980. Barnett v. Warren (82 Ala. 557), 1438. Barney v. Keith (4 Wend. (N. Y.) 502), 698. Barneycastle v. Walker (92 N. C. 198), 689. Barns v. Wilson (116 Pa. St. 303), 1157,1158. Barnsdall v. Boley (119 Fed. Rep. 191), 341. Barnum v. Fitzpatrick (27 Abb. N. C. (N. Y.) 334), 1132, 1152. Barnum v. Landon (25 Conn. 137), 390. Barr v. Chandler (47 N. J. Eq. 532), 550. Barr v. Glover (10 Ir. Com. L. Rep. 113), 634. Barr v. Kimball (43 Neb. 766), 480. Barreth v. Trainer (50 111. App. 420), 1072. Barrett v. Bell (82 Mo. 110), 447. Barrett v. Blagrave (5 Ves. 555), 725, 757. Barrett v. Brodie (158 111. 479), 1129, 1131, 1142, 1152, 1340. Barrett v. Cocks (12 Heisk. (Tenn.) 566), 17. Barrett v. Cox (112 Mich. 220), 195. Barrett v. Jefferson (5 Houst. (Del.) 567), 262. Barrett v. Johnson (2 Ind. App. 25), 320. Barrett v. Rolph (14 M. & W. 348), 1048. Barrett v. Warren (3 Hill (N. Y.) 348), 690. xliv TABLE OF CASES CITED. Barroilhet v. Battelle (7 Cal. 450), 1075. Barron v. Liedlogg (95 Minn. 474), 862. Barrow v. Isaacs (60 L. J. Q. B. 179), 669, 670. Barrow v. Richard (8 Paige, 351), 742. Barry v. Hamburg-Bremen F. I. Co. (110 N. Y. 1), 1051. Barry v. Hoffman (6 Md. 78), 350. Barry v. Ryan (4 Gray (Mass.) 523), 275. Barry v. Smith (23 N. Y. 129), 275. Barry v. Stanton (Cro. Eliz. 331), 1054. Bartel v. Brain (13 Utah, 162), 457. Bartlett v. Baker (34 L. J. Ex. 11), 128. Bartlett v. Farrington (120 Mass. 284), 565, 1131, 1132, 1136, 1137. Bartlett v. Greenleaf (11 Gray (Mass.) 98), 632. Bartlett v. Haviland (92 Mich. 552), 1252. Bartlett v. Hitchcock (10 111. App. 87), 288. Bartlett v. Perkins (13 Me 685. Robinson (52 Wright (Cro. Eliz. St. Bartlett v. 715), 937. Bartlett v. 299), 340. Bartley v. Phillips (179 Pa. 175), 645. Barton v. Banks (2 F. & F. 213), 1079. Barton v. Dawes (10 C. B. 261), 4G5. Barton v. Learnard (26 Vt. 192), 941. Barwick v. Thompson (7 T. R. 488), 922. Bascom v. Dempsey (143 Mass. 409), 685. [references ABE TO PAGES.] Basham v. Commonwealth (76 Ky. 36), 326. Baskin v. Seechrist (6 Pa. St. 497), 924. Bass V. Metropolitan West Side El. R. Co. (82 Fed. Rep. 587), 712. Bass T. Rollins (63 Minn. 226), 1143. Bass V. West (110 Ga. 698), 1185. Basserman v. Society of Trinity Church (39 Conn. 137), 449. Bassett v. Hughes (43 Wis. 319), 533. Bass Lake Co. v. Hollenbeck (5 Ohio Cir. Dec. 242), 334. Bastin v. Bidwell (18 Ch. D. 238), 1387. Bastow V. Cox (11 Q. B. 22), 187. Bateman v. Maddox (86 Tex. 546), 379. Bateman v. Murray (1 Ridgw. 170), 1383. Bates V. Bassett (60 Vt. 530), 73. Bates V. Boston & N. Y. R. R. Co. (10 Allen (Mass.) 251), 332. Bates V. Dunham (58 Iowa, 308), 14. Bates V. Hoski (6 Ohio Dec. 1064), 1264. Bauer v. Taylor (4 Neb. (Unof.) 701), 470, 477. Baugher v. Crane (27 Md. 36), 712. Baugher v. Wilkins (16 Md. 35), 697, 1158, 1160. Baughman v. Partman (14 S. W. Rep. 342), 292. Baughman v. Reed (75 Cal. 319), 315. Baum V. Bell (2S S. C. 201), 1466. Bauman v. James (L. R. 3 Ch. 508), 387. Baumgardner v. Copying Co. (44 111. App. 74), 1131. Baumier v. Antian (65 Mich. 31), 1142,1187. 87), Neb. TABLE OF CASES CITED. xlv [references are to pages.] Baxley v. Sechrest (85 Ala. 183), 1464. Baxter v. Brown (2 W. Bl. 973), 244. Baxter v. Bush (29 Vt. 465), 19, 1425. Baxter v. Lansing (7 Paige, 350), 666. Baxter v. Providence (40 Atl. Rep. 423), 623. Baxter v. Taylor (4 B. & Ad. 72), 679. Bayles v. Clark (100 N. Y. Supp. 586), 475. Bayley v. Bradley (5 Com. Bench, 56), 236. Bayley v. Fitzmaurice (9 H. L. Cas. 78), 386. Baylies v. Ingram (73 N. E. Rep. 1119), 630. Baylis v. Jiggins (67 L. J. Q. B. 793), 1030. Baylis v. Le Gros (4 Com. Bench, N. S. 537), 861. Bayis v. Prentice (75 N. Y. 604), 103. Bayly v. Gaines (12 "Va. Law J. 78), 1125. Bayly v. Lawrence (1 Bay. (S. C.) 499), 1353. Baynes v. Lloyd (2 Q. B. 610), 606. Baynham v. Guy's Hospital (3 Ves. 295), 1372. Baynton v. Finnall (12 Miss. 193), 21. Bazin v. Segma (5 La. Ann, 718), 1422. Beach v. Barons C13 Barb. (N. Y.) 305), 1316. Beach v. Grain (2 N. Y. 86), 883. Beach v. Parish (4 Cal. 339), 1340. Beach v. Gray (2 Denio (N. Y.) 84), 520. Beachey v. Somerset (1 Stra. 447), 667. Beakes v. Hass (36 Misc. Rep. 796), 1164. Beakes v. Holzman (94 N. Y. Supp. 33), 856, 877. Beal V. Bass (86 Me. 325), 620. Beal V. Boston Car Spring Co. (125 Mass. 159), 491, 1096, 1112. Beale v. Sanders (3 Bing. (N. C.) 850), 196, 385. Beall V. James Folmar Sons & Co. (122 Ala. 414), 1435. Beall V. White (94 U. S. 382), 1195,1422. Beals V. Providence Rubber Co. (11 R. I. 381), 1023. Beamish v. Cox (16 L. R. Ir. 270), 161. Bean v. Coleman (44 N. H. 539), 441. Bean v. Pettengill (7 Rob. (N. Y.) 7), 1188. Bear v. Bitner (16 Pa. St. 175), 1316. Beardman v. Wilson (L. R. 4 C. P. 57), 1199. Beardsley v. Town of Nashville (64 Ark. 240), 575. Beasley v. Clarke (102 Ala. 254), 960. Seattle v. Parrott Silver & Cop. Co. (17 Pac. Rep. 451), 123L Beaty v. Gibbon (16 Bast, 116), 1314. Beavan v. Dalahy (1 H. Bl. 5), 1314. Bebb V. Crowe (39 Kan. 342), 124. Becar v. Flues (¥4 N. Y. 518), 379. Beck V. Flournoy Live Stock & R. E. Co. (12 C. C. A. 497), 40. Beck V. Minnesota & Western Grain Co. (107 N. W. Rep. 1032), 943. Beck V. Western Grain Co. (131 Iowa, 62), 1419. Beck V. Wisely (52 Mo. App. 242), 1414. xlvi TiVBLE OP CASES CITED. [references are to pages.] Becker v. Bullowa (36 Misc. Rep. 524), 939. Becker v. Dalby (86 N. W. Rep. 314), 1420. Becker v. De Forest (1 Sweeney (N. Y.) 528), 119, 267. Becker v. Walworth (45 Ohio St 169), 45, 46. Beckham v. Newton (21 Ga. 187), 1188. Bechtel v. Carslake (11 N. J. Eq. 500), 441. Beckley v. Skroh (19 Mo. App. 75) 794. Beckwith v. Bent (10 B. Mon. (Ky.) 95), 1436. Beckwith v. Boyce (9 Mo. 500), 1253. Beckwith v. Howard (6 R. L. 1), 605. Bedell v. Constable (Vaughn, 182), 12. Bedford v. Kelly (61 Pa. St. 491), 107. Bedford v. Terhune (30 N. Y. 453), 1050, 1093, 1204, 1238. Bedford v. Winston (3 Rand. (Va.) 148), 1465. Bedman v. Murphy (35 Md. 154), 1127. Beebe v. Coleman (8 Page (N. Y.) 392), 390, 497. Beecher v. Duffield (97 Mich. 423), 561,1176. Beekman v. VanDolsen (63 Hun (N. Y.) 487), 896. Beer v. Beer (12 C. B. 60), 86, 88. Beers v. St. John (16 Conn. 322), 1264. Beeston v. Yale (78 N. Y. Supp. 158), 1207. Behrman v. Barto (54 Cal. 131), 1387. Beiler v. Devoll (40 Mo. App. 251), 174. Belcher v. Mcintosh (8 Car. & P. 720), 887, Belchers S. R. Co. v. Grain El. (101 Mo. 192), 72. Belches v. Grimsley (88 N. C. 88), 1430. Belding v. Flynn (15 S. W. Rep. 184), 395. Belding v. Texas Produce Co. (61 Ark. 377), 139. Belger v. Sanchez (70 Pac. Rep. 738), 579. Belfour v. Weston (1 T. R. 310), 1340. Belknap v. Belknap (77 Iowa, 71), 83. Bell V. Allen's Adm'r (2 Munf. (Va.) 118), 342. Bell V. Baker (43 Minn. 86), 469, 481. Bell V. Barchard (16 Beav. 8), 365. Bell V. Byerson (11 Iowa, 233), 327. Bell V. Ellis' Heirs (1 Stew. & P. (Ala.) 294), 318. Bell V. Matheny (36 Ark. 572), 1424. Bell V. Platteville (70 Wis. 139), 72. Bell V. Rinker (30 111. App. 300), 174. Bellamy, Elder v. Pearson, In re (53 L. J. Ch. 174), 20. Bellas V. Hays 15 S. & R. (Pa.) 427), 106. Bellases v. Burbrick (1 Salk. 209), 130. Belshe v. Batdorf (98 Mo. App. 627), 1432, 1455. Belvin v. Raleigh Paper Co. (123 N. Car. 138), 1250. Berais v. Wilder (100 Mass. 446), 1054. Benedict v. Barling (79 Wis. 551), 421. Benedict v. Everard (73 Conn. 157), 1085. TABLE OP CASES CITED. xlvii [reb^erences are to pages.] Benedict v. Morse (10 Met. (Mass.) 223), 228, 941. Beneteau v. Stubler (79 Minn. 259), 847. Bendall v. Summersett (2 W. Bl. 692), 48. Benfoy v. Congon (40 Micli. 283), 201. Benlow v. Dry Dock Co. (112 N. Y. 263), 960. Bennet v. Farka.s (126 Ga. 228), 992. Bennett v. Bittle (4 Rawle (Pa.) 339), 399, 1183. Bennett v. Herring (3 C. B. (N. S.) 370), 490, 494. Bennett v. McKee (38 So. Rep. 129) 1073. Bennett v. Judson (21 N. Y. 238), 102. Bennett v. Robinson (27 Mich. 26) 230. Bennett v. Sullivan, (100 Me. 118) 782. Bennett v. Womack (7 B. & C. 627), 364, 508, 607. Bennett's Case (1 Stra. 7«7), 1442. Bennock v. Whipple (12 Me. 346), 201, 212. Benoist v. Rothschild (145 Mo. 399), 84, 484. Bensel v. Gray 180 N. Y. 417), 1071, 1077. Bensley v. Atwill (12 Cal. 231), 351. Benson v. Aitken (17 Cal. 163), 122. Benson v. Gottheimer (75 Ga. 642), 1411. Benson v. Hobbs (4 Har. & J. (Md.) 285), 601, 604. Benson v. Suarez (43 Barb. (N. Y.) 408), 1057. Bentley v. Atlantic (92 Ga. 623), 704. Bentley v. Metcalf (75 L. J. K. B. 891), 295. Bentley v. Sill (35 111. 414), 1161. Bentley v. Taylor (81 Iowa, 306), 674, 782. Benton, In re (92 Iowa, 262), 10. Berger v. Hoerner (36 111. App. 360), 1253. Bergh v. Herring (136 Fed. Rep. 368), 1288. Bergland v. Frawley (72 Wis. 559), 622, 1225, 1226. Bergman v. Guthrie (89 Iowa, 290), 1440. Bergner v. Palethrop (2 W. N. C. (Pa.) 297), 327. Berkey-Gay Furniture Co. v. Sher- man Hotel Co. (81 Tex. 135), 1436. Berkley v. Smith (27 Gratt. (VL) 299), 440. Berlin v. Belle Isle Scenic Ry. Co. (12 Det. Leg. N. 573), 66. Berliner v. Association (32 Misc. Rep. 470), 1296. Bernal v. Gleim (33 Cal. 668), 27. Bernal v. Hovious (15 Cal. 544), 311. Bernard v. Bonner (Alleyn, 58), 1200. Berner v. Bagnell (20 Mo. App. 543), 327. Bernett v. Bittle (4 Rawle (Pa.) 339), 1132. Bernham v. Hubbard (36 Conn. 539), 594. Bernhard v. Reeves (6 Wash. 424), 841. Bernheimer v. Adams (70 App. Div. 114), 1265. Berni v. Boyer (90 Minn. 469), 772. Bernstein v. Heinemann (23 Misc. Rep. 464), 521, 583, 1367. Berrian v. Olmsted (4 E. D. Smith (N. Y.), 1302. Berridge v. Glassey (7 All. Rep. 749), 454, 928. xlviii TABLE OF CASES CITED. [EEFEREXCES ABE TO PAGES.] Berriman v. Peacock (9 Bing. 384), 715. Berrington v. Casey (78 111. 317), 677, 693. Berry v. Berry (8 Kan. App. 584), 1459. Berry v. Carle (4 Greenl. (Me.) 269), 434. B«rry v. Lindley (3 Man. & G. 496, 147. Berry v. Mutual Ins. Co. (2 Johns. Ch. (N. Y.) 603), 1108. Berry v. Potter (62 N. J. Eq. 664), 271. Berry v. Van Winkle's Ex'rs (2 N. J. Eq. 390), 874, 1292. Berry v. White (Bridgeman, 82), 530. Berryhill v. Healey (89 Minn. 444), 1056. Bertie v. Beaumont (16 Est. ), 301. Bertie v. Flagg (161 Mass. 504), 782, 795, 796. Bertram v. Cook (32 Mich. 518), 920, 922, 947, 953, 955. Besley v. Besley (9 Ch. D. 103), 1099. Bess V. Vernam (6 App. Div. 246), 1127. Best V. Pold (18 Wall. (U. S.) 112), 38. Best Mfg. Co. V. Cohn (86 Pac. Rep. 829), 1260. Betsinger v. Schuyler (46 Hun (N. y.) 349), 279, 1409. Bettesworth v. Dean, etc. of St Paul (3 Bro. P. C. 389), 1383. Bettinger v. Baker (29 Pa. St. 66), 1306. Bettison v. Budd (17 Ark. 546), 956. Bettisworth's Case (2 Coke, 516), 399, 447. Betts V. June (51 N. Y. 274), 1391. Betz V. Maxwell (48 Kan. 142), 208, 221. Betz V. Snyder (48 Ohio St. 492), 326. Bevans v. Briscoe (4 Har. & J. 149), 3, 1323. Beverly v. Lincoln Gas Co. (6 Ad. & E. 839), 581. Beyer v. Fenstermacher (2 Whart. (Pa.) 95), 1443. Bickford v. Parson (5 C. B. 920, 930), 493, 639. Biddle v. Blackburn (5 Pa. Law. J. 419), 1005. Biddle v. Hussman (23 Mo. 597), 541, 1178. Biddle v. Reed (33 Ind. 52^), 847. Biddulph V. Poole (11 Q. B. 713), 1202, 1214. Bieler v. Devoll (40 Mo. App. 251), 378. Bigelow V. Collamore (5 Cush. (Mass.) 226), 882, 1351. Bigelow V. Shaw (65 Mich. 341), 435. Bigelow Co. V. Heintze (53 N. J. 69), 1302. Biggs V. Brown (2 S. & R. (Pa.) 14), 68$, 1314. Biggs V. Piper (86 Tenn. 589), 1411. Biggs V. McCurley (76 Md. 409), 879, 880, 1152. Biggs V. Stueler (93 Md. 110), 1214, 1236. Bigler v. Furman (58 Barb. (N. Y.) 545), 927, 934. Biglow V. Biglow (75 App. Div. 9S), 573. Biglow V. Biglow (56 N. Y. Supp. 794), 958. Biglow V. Biglow (77 N. Y. Supp. 716), 264, 685. Bilcher v. Parker (40 Mo. 113), 139. Billany v. Smilh (4 Houst. (Del.) 113), 1142. Billings v. Starke (15 Fla. 297), 351. TABLE OF CASES CITED. xlix [references are to pages.] Billings V. Tucker (6 Gray (Mass.) 368), 1330. Binds V. Benbow (11 Rich. L. (S. C.) 24), 690, 958. Binford v. Bruso (22 Ind. App. 512), 361. Bingham v. Allport (1 N. & M. 398), 537. Bingham v. Honeyman (32 Oreg. 129), 336. Bingham v. Vandegriff (93 Ala. 283), 1448. Binney v. Chapman (5 Pick. (Mass.) 124), 938. Binney's Case (2 Bland (Md.) 114), 437. Binns v. Hudson (5 Binn. (Pa.) 505), 1415, 1443. Birch V. Dawson (6 C. & P. 658), 1257. Birch V. Ward (111 111. App. 336), 694. Birch V. Wright (1 T. R. 378), 128, 130, 223. Bircher v. Parker (43 Mo. 443), 1264, 1267, 1271. Bird V. Defonvielle (2 Car. & K. 415), 1239. Bird V. Earle (15 Fla. 447), 82. Bird V. Elwes (37 L. J. Ex. 91), 859. Bird V. Lord Treville (1 C. & E. 317), 785. Birkhead v. Cummins (33 N. J. Law, 44), 1134. Birmingham Breweries v. Jame- son (67 L. J. Ch. 403), 750. Bischoff V. Trenholm (36 S. C. 75), 1084. Bishop V. Blair (36 Ala. 302), 22. Bishop V. Howard (3 D. & R. 293), 133, 140. Bishop V. Lalouette's Heirs (67 Ala. 197), 941. Bishop V. Taylor (60 L. J. Q. B. 556), 365. Bishop V. Trustees of Bedford Charity (28 L. J. 215), 638. Bissell V. Lloyd (100 111. 214), 804, 876. Bissell V. Erwin's Heirs (10 La. 524), 321. Bittinger v. Baker (29 Pa. St. 66), 204, 1316, 1328. Black V. Delaware & R. Canal Co. (22 N. J. Eq. 130), 62. Black V. Ebner (54 Ind. 544), 877. Black V. Golden (109 Mo. App. 37), 311, 315. Black V. Shreve (13 N. J. Eq. 455), 349. Blacker v. Mathers (6 Bro. P. C. 334), 607. Blackford v. Frenzer (44 Neb. 829), 1098. Blackman v. Welsh (44 Mo. 41), 638. Blackmore v. Boardman (28 Mo. 420), 616, 1081, 1391. Blackwell v. Baily (1 Mo. App. 328), 1299. Blackwell v. Bowers (67 Vt. 403), 192. Blair v. Claxton (18 N. Y. 529), 1178. Blair v. Macon (64 N. H. 487), 164. Blair v. Ramkin (11 Mo. 440), 1077. Blake v. Baker (115 Mass. 188), 1023. Blake v. Chase, Counselman & Co. (95 Iowa, 219), 1452. Blake v. Clarke (6 Me. 436), 437, 439. Blake v. Coats. (3 G. Greene (Iowa) 548), 689, 690, 1451. Blake v. Dick (15 Mont. 236), 103, 469, 476, 785, 787, 1152, 1210. Blake v. Foster (8 T. R. 496), 953. Blake v. Fox (17 N. Y. Supp. 508), 814, TABLE OF CASES CITED. [references are to pages.] Blake v. Grammer (3 Fed. Cas. No. 1,496), 492. Blake v. Kurrus (41 111. App. 562), 151. Blake v. Preston (67 Vt. 613), 579. Blake v. Ranous (25 111. App. 486), 789, 796. Blakeman v. Miller (136 Cal. 138), 1079. Blakeman v. Railroad (8 El. & Bl. 1053), 913. Blanchard v. Ames (60 N. H. 404), 987. Blanchard v. Baker (8 Me. 258), 432. Blanchard v. Powers (67 Vt. 403), 196, 220. Blanchard v. Raines (20 Fla. 467), 1401. Blanchard v. Taylor (12 Mich. 339), 350. Blanchard v. Warner (1 Blatch. (U. S.) 258) 62. Bland v. Burdick (Cro. Eliz. 46), 1323. Blantin v. Whitaker (11 Humph. (Tenn.) 310), 941. Blarcom v. Kip (26 N. J. Law, 351), 960. Blasdell v. Souther (6 Gray. (Mass.) 149), 467. Blauvelt v. Powell (59 Hun, 179), 1160. Blazier v. Johnson (11 Neb. 404), 334. Bledsoe v. Mitchell (52 Ark. 158), 1430. Bleecker v. Smith (13 Wend. (N. Y.) 530), 648. Bless V. Jenkins (129 Mo. 647), 100, 170, 173, 388. Blickley v. Luce (148 Mich. 133), 866. Blight V. Dennet (13 Com. Bench, 178), 179. Blight V. Rochester (7 Wheat. (U. S.) 453), 317. Bliss V. Collins (5 Barn. & Aid. 876), 541. Block V. Ebner (54 Ind. 544), 563, 659. Block V. Katz (68 N. Y. Supp. 865), 1356. Block V. Smith (61 Ark. 206), 319, 1410. Blood V. Goodrich (9 Wend. (N. Y.) 68), 97. Bloodworth v. Stevens (51 Miss. 475), 49, 503, 563, 1112. Bloom V. West (3 Colo. App. 212), 442.' Bloom V. Wolfe (50 Iowa, 286), 17. Bloomer v. Merrill (1 Daly, 485), 847, 1214. Bloomquist v. Johnson (107 111. App. 154), 1195. Bloomsburgh Land Imp. Co. v. Boro of B. (215 Pa. St. 452), 76. Blore V. Sulton (3 Mer. 237), 259. Blossom V. Knox (3 Chand. (Wis.) 295), 703. Blount V. Connolly (110 Mo. App. 602), 1391. Bludworth v. Lambeth (9 Rob. (La.) 256), 1315. Blue V. Sayre (2 Dana (Ky.) 213), 968. Bluestone Coal Co. v. Bell (38 W. Va. 297), 363. Blum V. Robertson (24 Cal. 127), 1,98. Blumberg v. McNear (1 Wash. T. 141), 575. Blumenberg v. Myers (32 Cal. 93), 150. Blumenthal v. Prescott (75 N. Y. Supp. 710), 802, 865. Blunden v. Baugh (Cro. Car. 304), 20. Bly V. Edison Electric Illuminat- ing Co. (172 N. Y. 1), 704. Boardman v. Davidson (7 Abb. Prac. 439), 647. TABLE OP' CASES CITED. li [kefekences are to pages.] Boardman v. Osborn (23 Pick. Mass. 295), 522. Board of Directors v. Chicago Ve- neer Co. (94 III. App. 492), 139. Bobb V. Syennite Granite Co. (41 Mo. App. 642), 683. Boden v. Scholtz (91 N. Y. Supp. 437), 831. Boddie v. Brewer (204 111. 352), 780. Bodwell V. Crawford (26 Kan. 292), 757. Bodwell Granite Co. v. Lane (83 Me. 168), 212. Boefer v. Sheridan (42 Mo. App. 226), 720. Bogendorfer v. Jacob (89 N. Y. Supp. 1051), 817. Bogert V. Dean (1 Daly, N. Y. 259), 1227. Bogg V. Midland Ry. (36 L. J. Ch. 440), 1385. Boggs V. Price (64 Ala. 514), 1431, 1459. Bohannous v. Lewis (3 T. B. Mon. Ky. 376), 332, 883. Boiler V. Robinson (50 Mich. 264), 1379. Boiling V. Stokes (2 Leigh, Va. 178), 1024. Bolton V. Lambert (72 Iowa, 483), 285. Bolton V. Landers (27 Cal. 104), 182. Bolton V. Tomlin (5 Ad. & E. 856), 383. Bonaparte v. Thayer (95 Md. 548), 261. Bond V. Cartwright (1 Vent. 136), 80. Bond V. Chapman (34 Wash. St. 606), 167. Bond V. Lockwood (33 111. 212), 708. Bond V. Rosling (1 B. & S. 371), 332. Bonds V. Smith (106 N. C. 553), 922. Bondurant v. Thompson (15 Ala. 202), 52. Bonnecaze v. Beer (37 La. Ann. 531), 862. Bonnell v. Allen (53 Ind. 130), 1331. Bonelli v. Blakemore (66 Miss. 136), 445. Bouetti V. Treat (91 Cal. 223). 1086, 1222. Bonoyan v. Palmer (5 Mod. 171), 90. Bonsail v. McKay (1 Houst. Del. 520), 219. Booker v. Jones (55 Ala. 266), 1445. Boone v. Darden (109 N. C. 74), 1432. Boone v. Stover (66 Mo. 430), 243. Booraem v. Morris (N. H. 1906, 64 Atl. Rep. 953), 1353. Boorman v. Wisconsin (36 Wis. 207), 1292. Booth V. Gaither (58 111. App. 263), 412. Booth V. Kehoe (71 N. Y. 341), 1110. Booth V. Merriam (155 Mass. 521), 788, 804, 813. Booth y. Oliver (67 Mich. 664), 1407,1410. Boraston v. Green (16 East, 71), 1314,1337. Borden v. Croak (131 111. 68), 1428. Bordereaux v. Walker (85 111. App. 86), 483. Borderre v. Den (106 Cal. 594), 95,99. Boreel v. Lawton (90 N. Y. 293), 1176. Borgard v. Gale (205 111. 511). 331, 782, 788. Borjman v. Spellmire (4 Ohio N. P. 416), 616, 1026. lii TABLE or CASES CITED. [references are to pages.] Boston y. Binney (11 Pick. Mass. 1). 573, 579. Boston V. Gray (144 Mass. 531), 826. Boston & Me. R. R. Co. v. Bartlett (3 Cush. Mass. 224), 981. Boston & Worcester R. R. Corp. t. Ripley (13 Allen, Mass. 421), 541,1176. Boston-Block Co. v. Buffington (39 Minn. 385), 1346. Boston CIo. Co. v. Solberg (68 Pac. Rep. 715), 261. Boston El. R. Y. Co. v. Grace (112 Fed. Rep. 279), 629, 659, 1082. Boston Tailoring Co. v. Fisher (59 111. App. 400), 65. Boston Water Power Co. v. Gray (6 Mete. Mass. 131), 571. Bostwick V. Losey (67 Mich. 554), 875,1151. Bostwick V. Stiles (35 Conn. 198), 904. Botting V. Martin (1 Camp. 318), 380. Bourke v. Bourke (I. R. 8 C. 221), 550. Bourland v. McKnight (79 Ark. 427), 312. Bourn v. Salmon (95 L. T. 139), 1009. Bovet V. Holzgraf (5 Tex. Civ. App. 141), 1244. Bowdish V. Dubuque (38 Iowa, 341), 942. Bowditch V. Chickering (139 Mass. 283), 1014. Bowditch V. Heation (22 La. Ann. 356), 1353. Bowditch V. Ra\Tnond (146 Mass. 109), 637. Bowe V. Hunking (135 Mass. 580), 782, 804, 813, 847. Bowen v. Anderson (1 Q. B. 164), 161,792. Bowen v. Beck (94 N. Y. 86), 729. Bowen v. Clarke (22 Oreg. 566), 1207, 120S, 1215. Bowen v. Haskell (53 Minn. 480), 1199. Bowen v. Hatch (Tex. 84 S. W. Rep. 336), 479. Bowen v. Schackter (72 N. J. Law, 441), 1340. Bowen v. Wolff (23 R. I. 56), 475. Bower v. Highie (9 Mo. 256), 933. Bower v. Hill (1 Bing. N. C. 555), 679. Bower v. Peate (7 Q. B. 321), 802. Bowers v. Graves (8 S. D. 385), 309. Bowers v. Suffolk Mfg. Co. (4 Cush. Mass. 332), 439. Bowes v. Croll (6 E. & B. 264), 138. Bowler v. Electric Light Co. (10 Dec. Rep. 582), 266. Bowles V. Lyon (6 Rob. La. 262), 154, 156, 164. Bowman v. Bradley (151 Pa. St. 351), 300, 303. 304. Bowman v. Foot (29 Conn. 331), 635. Bowman v. Wright (Neb. 91 N. W. Rep. 580), 557, 1200. Bowser v. Colby (1 Hare. 109), 649, 666, 667, 1051. Boyce v. Bakewell (37 Mo. 492),. 1060. Boyce v. Graham (91 Ind. 420), 676. Boyce v. Guggenheim (106 Mass. 201), 847. Boyd V. Douglass (72 Vt. 449), 1244. Boyd V. Fraternity Hall Ass'n (16 111. App. 574), 743, 1050. Boyd V. Hunter (44 Ala. 705), 52. Boyd V. McCombs (4 Pa. St. 146). 522. Boyd's Lessee v. Talbot (12 Ohio, 212), 638. TABLE OP CASES CITED. liii [befekexce:s aee to pages.] Boyer v. Commercial Building Inv. Co. (110 Iowa, 491), 479. Boyer t. Dickson (1 Phila. 190), 1350. Boyer v. Smith (3 Watts, Pa. 449), 930. Boynton v. Peterborough & Shir- ley R. Co. (4 Cush. Mass. 467), 50. Bracebridge v. Bulkley (2 Price, 200), 667. Bracebridge v. Cook (Plou-d. 418), 20,27. Brackenridge v. Millen (16 S. W. 620), 1435. Bracket v. Alvord (5 Cow. N. Y. 18), 559. Bradburne v. Botfield (14 M. & W. 567), 87. Bradfield t. McCormick (3 Blackf. Ind. 161), 232. Bradford v. Fox (38 N. Y. 289), 547. Bradford v. Patten (108 Mass. 153), 1377, 1378. Bradford Oil Co. v. Blair (113 Pa. St. 83), 518, 615. Bradley v. Bailey (36 Conn. 374), 1322. Bradley v. Covel (4 Cow. N. Y. 349), 139. Bradley v. De Goicouria (12 Daly, 393), 1149. Bradley v. Metropolitan Music Co. (89 Minn. 516), 244, 245. Bradley v. Ousterhoudt (13 Johns. N. Y. 404), 1260. Bradley v. United States (98 U. S. 104), 36. Bradley v. Walker (93 111. App. 609), 1092, 1094. Bradstreet v. Huntington (5 Pet. IT. S. 402), 317. Brady v. Nagle (29 S. W. Rep. 943), 641. Brady v. City of Brooklyn (1 Barb. N. Y. 584), 65. Bragg V. Fessenden (11 111. 544), 97, 98, 100. Brain t. Mattison (54 N. Y. 663), 53. Brainard v. Burton (5 Vt. 97), 1404. Braman v. Dodge (100 Me. 143), 329, 330. Bramhall v. Hutchinson (7 Atl. Rep. 873), 391, 1110. Bramwell v. Lacey (48 L. J. Ch. 339), 739. Branahan v. Hotel Co. (39 Ohio St. 333), 405. Brancato v. Kors (74 N. Y. Supp. 891), 810. Brandagee v. Fernandez (1 Rob. La. 260), 262. Brande v. Grace (154 Mass. 210), 406. Brand v. Trumveller (32 Mich. 215), 1398. Brandon v. Brandon (5 Madd. 473), 959, 1124. Branger v. Manciet (30 Cal. 624), 701. Brann v. Monroe (11 Ky. Law Rep. 324), 351. Branton v. O'Briant (93 N. C. 99), 152. Bras V. Sheffield (49 Kan. 702), 978. Brasfield v. Brasfield (12 Pickle, Tenn. 580), 22. Bratt V. Wooston (74 Md. 609), 1392. Bratton v. Clamson (3 Strobh. S. C. 135), 462. Braythwaite v. Hitchcock (10 M. & W. 494), 134, 135, 187, 193, 198. Brayton v. Boomer (131 Iowa, 28), 1057. Brayton v. Fall River (113 Mass. 218), 405. Bream v. Dickenson (2 Humph. Tenn. 126), 614, 1285, 1292. Uv TABLE OP CASES CITED. Breck, In re (12 N. B 1122. Brecknock v. Pritchard (6 T. R. 750), 883. Breeding v. Taylor (13 B. Mon. Ky. 477), 539. Breese v. Bank (2 E. D. Smith, N. Y. 474), 1108, 1231. Ereithaupt v. Thurmond (3 Rich. S. C. 216), 100. Brennan v. Jacobs (15 Atl. Rep. 685), 677. Brennan v. Lachet (5 N. Y. St. Rep. 882), 805, 814. Brenner v. Bigelow (8 Kan. 496), 941. Brent v. Chipley (104 Mo. App. 645), 52, 53. Bressler's Appeal (2 York, Pa. 57), 573. Bret V. Cumberland (Cro. Jac. 399), 602. " Brett V. Berger (4 Cal. App. 12), 847. Brett V. Rogers (1897, I. Q. B. 525), 1028, 1029.. Breuer v. Frank (71 Ohio St. 540), 819. Brewer v. Chappell (101 N. C. 251), 1438. Brewer v. Dyer (7 Cush. Mass. 337), 1074. Brewer v. Knapp (1 Pick. Mass. 332), 141, 158, 550. Brewer v. National Union Bldg. Ass'n (166 111. 221), 1237. Brewer v. Palmer (3 Esp. 213), 581. Brewer v. Thorp (35 Ala. 9), 597. Brewer, etc. Brewing Co. v. Boddie (181 111. 622), 69. Brewster v. Fremery (33 Cal. 341), 782. Brewster v. Lanyon Zinc Co. (72 C. C. A. 212), 670. Brewster v. McNab (36 S. C. 274), 1438. [references are to pages.] R. 215). Parrot (Cro. Eliz. Brewster v. 264), 1201. Briar v. Robertson (19 Mo. App. 56), 378. Brice v. Williams (1 Mee. & Wei. 6), 247. Brick V. Favilla (103 N. Y. Supp. 1117), 839. Brick V. Hornbeck (43 N. Y. Supp. 301), 1125. Bridge Co. v. Side (2 C. & P. 371), 64. Bridges v. Longman (24 Beav. 27), 648, 664. Bridges v. Potts (17 C. B. N. S. 314), 140, 158, 173. Bridgham v. Frontec (3 Mod. 94), 41. Bridwell v. Bancroft (2 Ohio Dec. 697), 288. Brigg V. Thornton (73 L. J. Ch. 301), 744. Briggs V. Austin (129 N. Y. 208), 1406,1456. Briggs V. Dyer (7 Cush. Mass. 337), 1214. Briggs V. Hall (4 Leigh, Va. 484), 1180. Briggs V. Partridge (64 N. Y. 357), 109. Briggs V. Thompson (9 Pa. St. 338), 1183. Brigham v. Rogers (17 Mass. 571), 459. Brigham Young Trust Co. v. Wag- ener (13 Utah, 236), 629. Bright V. McQuat (40 Ind. 521), 186,227. Briles v. Pace (13 Ired. N. C. 579), 384. Bringloe v. Goodson (5 Bing. N. C. 738), 942. Brinkley v. Wolcott (10 Heislc. Tenn. 22), 144. Bristol, In re (33 N. W. Rep. 852), 1120, TABLE OF CASES CITED. Iv [references are to pages.] Bristol Hotel Co. v. Pegram (98 N. Y. Supp. 512), 464, 729. Bristor r. Burr (120 N. Y. 427), 231. Brittain v. McKay (35 Am. Dec. 738), 291. Britton v. Dierker (46 Mo. 591), 343. Broad v. Winsborough (1 North Co. Pa. 330), 876. Broadway & S. A. R. Co. v. Metz- ger (27 Abb. N. C. 160), 1380. Brock V. Dole (66 Wis. 142), 712. Brock V. Dwelling House Ins. Co. (61 N. W. 67), 572. Broekville, etc. Co. v. Butler (91 Ind. 134), 435. Brogan v. Hanan (55 A. D. 92), 798, 799, 859. Broker v. Charters (Cro. Eliz. 92), 48. Brolasky v. Ferguson (48 Pa. St 434), 573. Bromley v. Hopewell (14 Pa. St. 400), 1441, 1442. Bronner v. Walter (44 N. Y. Supp. 583), 855. Brookhaven v. Baggett (61 Miss. 383), 297, 698. Brooklyn Bank v. De Graw (23 Wend. N. Y. 342), 538. Brooks V. Allen (146 Mass. 201), 479. Brook V. Biggs (2 Bing. N. C. 572), 530, 545. Brooks V. Clifton (22 Ark. 54), 729. Brooks V. Cook (Ala. 38 So. Rep. 641), 106, 109. Brooks V. Cunningham (49 Miss. 108), 512. Brooks V. Diaz (35 Ala. 599), 759. Brooks V. Drysdale (3 C. P. D. 52), 599, 1070. Brooks V. Jackson (125 Mass. 307), 50, 51, 52. Brooks V. Olmstead (17 Pa. St. 24), 690. Brooks V. Reynolds (106 Mass. 31), 411. Brooks V. Rogers (101 Ala. Ill), 646, 685, 960, 1300, 1336. Brooks V. Stinson (44 N. C. 72), 685. B. Roth Tool Co. V. Champion Spring Co. (93 Mo. App. 530), 644. Broughton v. Smart (59 111. 440), 575. Brouwer v. Jones (23 Barb. N. Y. 143), 729. Brown v. Amyot (3 Hare, 173), 540. Brown v. Bates (Brayton, Vt. 230), 225. Brown v. Bridges (31 Iowa, 138), 680. Brown v. Brown (109 N. C. 124), 1418. Brown v. Burrington (36 Vt. 40), 874. Brown v. Cairns (107 Iowa, 727), 1200, 1215. Brown v. Cairns (63 Kan. 584), 557, 560. Brown v. Carkeek (14 Wash. 443), 448. Brown v. Chadbourne (31 Me. 9), 434. Brown v. Coats (56 Ala. 439), 309. Brown v. Crump (1 Marsh. 569), 730, 760, 763. Brown v. Curren (53 How. Pr. N. Y. 303), 1159. Brown v. Dysinger (1 Rawle, Pa. 408), 927. Brown v. Eaton (21 Minn. 409), 98. Brown v. Oilman (13 Mass. 158), 340. Brown v. Hamil (76 Ala. 506), 1438. Brown v. Hardin (21 Ark. 325), 451. Ivi TABLE OP CASES CITED. rEEFEBENCES ARE TO PAGES.] Brown v. Harper (54 Iowa, 546), 572. Brown v. Hobson (3 A. K. Marsh. Ky. 380), 53. Brown v. Jaquette (94 Pa. St. 113), 310. Brown v. Kayser (60 Wis. 1), 140, 162,180. Brawn v. Keller (33 111. 151), 182, 924,964. Brown v. Lindsay (2 Hill, S. C. 542), 25. Brown v. Lyddy (11 Hun, N. Y. 451), 569, 1273. Brown v. Magorty (156 Mass. 209), 1335. Brown v. Matthews (3 La. Ann. 198), 395. Brown v. Niles (165 Mass. 276), 758. Brown v. Noel (21 Ky. Law Rep. 648), 1425, 1467. Brown v. O'Connor (2 Hog. 77), 1124. Brown v. Parsons (22 Mich. 24), 317, 1369. Brown v. Quilter (Amb. 619), 1344. Brown v. Reno Electric L. & P. Co. (55 Fed. Rep. 229), 1250, 1254. Brown v. Roberts (21 La. Ann. 508), 254. Brown v. Samuels (24 Ky. Law Rep. 1216), 1378. Brown v. Schiappacassee (115 Mich. 47), 454. Brown v. Schleier (118 Fed. Rep. 981), 67. Brown v. Smith (83 111. 291), 213, 229. Brown v. Story (1 M. & G. 114), 30. Brown v. Straw (6 Neb. 536), 343. Rrown v. Susquehana Broom Co. 109 Pa. St. 57), 904. Brown v. Tiiur.ston (56 Me. 126), 1306, Brown v. Wakeman (16 N. Y, Supp. 846), 1180. Brown v. Water Co. (152 Mass. 463), 1142. Browne, In re (3 Fed. Cas. 1741), 547. Browne v. Raban (15 Ves. 528), 365,607. Browne v. Tighe (8 Bli. N. S. 272), 1371,1374. Browne v. Turner (60 Mo. 21), 1306. Browne v. Warner (14 Ves. 156), 251. Brownell v. Fuller (60 Neb. 558), 1244. Brownell v. Tuzman (68 111. App. 67), 1409. Brownell v. Walsh (91 111. 523), 155. Browning's Case (Plowd. 133), 648. Browning v. Dalesme (5 N. Y. Su- per. Ct. 13, 195), 420. Brown's Adm'r v. Bragg (22 Ind. 122), 632. Brownson v. Roy (10 Det. Leg. N. 302), 1112, 1118. Brubaker v. Poage (1 T. B. Mon. Ky. 123), 275. Bruce v. Bank (79 N. Y. 154), 1367, 1373. Bruce v. Ruler (2 M. & R. 3), 1205. Bruce v. Welch (52 Hun, 524), 130T. Bruce, In re (4 Fed. Cas. 2044), 1119. Bruckman v. Hargadine, etc. Co. (91 Mo. App. 454), 297. Bruer v. Hayes (10 Ohio Dec. 583), 54. Brugher v. Buchtenkirch (51 N. Y. Supp. 465). 810. ■ Brugman v. Noyes (6 Wis. 1), 733, 743, 757. Brunifield v. Carson (33 Ind. 94), 382. TABLE OF CASES CITED. Ivii [eefebe:<;ces aee to pages.] Brummell v. Macpherson (14 Ves. 173), 646. Brunker v. Cummins (133 Ind. 443), 804, 832. Brunson v. Morgan (84 Ala. 578), 957. Brunswick-Balke-Collender Co. v. Rees (69 Wis. 442), 839. Brush V. Beecher (110 Mich. 597), 1373. Brush V. Young (28 N. J. L. 237), 53. Bryan v. Averett (21 Ga. 401), 90. Bryan v. Bradley (116 Conn. 474), 354. Bryan v. Fisher (3 Blackf. Ind. 316), 611, 867. Bryan v. Hanrick (8 S. W. Rep. 282), 920. Bryan v. Sanderson (2 MacArthur, D. C. 431), 1436. Bryan v. Weatherhead (Cro. Jac. 17), 448. Bryant v. Carr ^101 N. Y. Supp. 646), 830. Bryant v. Hancock (67 L. J. Q. B. 507), 751, 770. Bryant v. Logan (56 W. Va. 141), 78. Bryant v. Pugh ('86 Ga. 525). 310. Bryant v. Sparrow (62 Me. 546), 689. Bryant v. Tucker (19 Me. 383), 204. Bryant v. Vincent (100 Mich. 426), 148. Bryant v. Wells (56 N. H. 152), 87, 109. Bryden v. Northrup (58 III. App. 233), 748, 757. Brydges v. Lewis (3 L. J. Q. B. 602), 489, 639. Bryson v. Boyce (92 S. W. Rep. 820), 957. Buchanan v. Larkin (116 Ala. 431), 941. Buchanan v. Munroe (22 Tex. 537), 28. Buchana,n v. Whitman (151 N. Y. 253), 345. Buck V. Lee (36 Ark. 525), 1436. Buck V. Lewis (46 Mo. App. 227), 1192, 1207. Buck V. Marrow (2 Tex. Civ. App. 361), 703. Buck V. Midland Tobacco Works (62 Mo. App. 775), 1467. Buck V. Pike (27 Vt. 529), 878. Buck V. Rodgers (39 In 1418, 1464. Jones V. Felker (72 Ark. 405), 849. .Jones V. Fox (23 Fla. 454, 461), 1401, 1403. Jones V. Hamm (98 Mo. App. 433), 1047. Jones V. Hoard (59 Ark. 42), 873. Jones V. Jones (10 B. & C. 718), 198, 607. Jones V. Jones (2 Rich. Law. S. C. 542), 198. .Jones V. Jones (117 N. Car. 254), 1403. Jones V. Marcy (49 Iowa, 188), 378. Jones V. Marks (47 Cal. 242), 390, 392. Jones V. Marsh (4 T. R. 464), 174, 175. Jones V. Meehan (20 S. Ct. 1), 37, 39. Jones V. Mills (10 C. B. N. S. 788), 160, 182, 966. Jones V. Millsaps (71 Miss. 10), 849. Jones V. Park (10 Phila. Pa. 165), 439. .Tones v. Pashby (62 Mich. 614), 451. Jones v. Phipps (9 B. & S. 761), 171. Jones V. Reed (15 N. H. 68), 663. Jones V. Reilly (174 N. Y. 97), 550. Jones V. Reynolds (4 A. & E. 805), 574, 578. Jones V. Richardson (10 Met. Mass. 488), 1427. .Jones V. Ricketts (7 Md. 108), 549. Jones V. Rigby (41 Minn. 530), 486. Jones V. Shay (50 Cal. 508), 187, 189, 19L cxxXii TABLE OF CASES CITED. [refekences are to pages.] Jones V. Shears ("4 Ad. & El. 832), 356. .Jones V. Shefflin (45 W. Va. 729), 6. Jones V. Spartanburg Herald Co. (44 S. Car. 526), 159. Jones V. Thomas (8 Blackf. Ind. 428), 288, 1325. Jones V. Thorne (3 Dow & R. 152), 747. Jones V. Tipton (2 Dana, Ky. 295), 318. Jones V. Webster (48 Ala. 109), 590. Joaes V. Western Pennsylvania Gas Co. (146 Pa. St. 204), 641, 643, 644. Jones V. Whitehead (4 Clark, Pa. 330), 717. Jones V. Willis (63 N. Car. 430), 153. Jones V. Wingfield (3 M. & S. 846), 510. Jordan v. Bryan (103 N. Car. 59), 312. Jordan v. Benwood (42 W. Va. 312), 683. Jordan v. Davis (108 111. 336), 351. Jordan v. Helwig (1 Wils. Ind. 447), 794. Jordan v. Indianapolis Water Co. (159 Ind. 337), 1093. Jordan v. Katz (89 Va. 628), 949. Jordan v. Mead (19 La. Ann. 101), 258. Jordan v. Sullivan (181 Mass. 348), 833. Jordan v. Ward (1 H. Bl. 97), 8. Jordan v. Wilkes (Cro. Jac. 332), 25. .Toslin V. McLean (99 Mich. 480), 1210. Joslyn V. Spellman (9 Ohio Dec. 258), 1006. Josse V. Schultz (13 Fed. Cas. 7,551), 547. Joules V. Joules (1 Brown, 39),. 86. Jourdain v. Wilson (4 B. & Aid. 266) 617. Journeay v. Brackley (1 Hilt. N. Y. 447), 1080. Journe's Succession (21 La. Ann. 391), 41. Joy V. McKay (70 Cal. 445), 206, 234. Joyce V. Martin (15 R. I. 558), 792, 798, 825. Joyner v. Weeks (1891, 2 Q. B. 31), 895. Jojmes V. Statham (3 Ark. 388), 1002. Jucht V. Behrens (7 N. Y. Supp. 195), 810. Jud V. Arnold (31 Minn. 340), 378. Judge V. Curtis (72 Ark. 132), 1456. Judson V. Gurley (52 Tex. 226), 632. Juergen v. Allegheny Co. (204 Pa. St. 501), 1135. Julicher v. Connelly (102 N. Y. Supp. 620), 341. Junction Min. Co. v. Springfield Junction Coal Co. (122 111. App. 574), 888. Jungerman v. Bovee (19 Cal. 354), 1287. Jurdain v. Steere (Cro. Jac. 83), 80. Juress V. Railroad Co. (61 N. J. Law. 314), 836. as' Estate (5 Pa. Co. Ct. Rep. 55), 198. Kabley v. Worcester Co. (102 Mass. 392), 244, 245, 519, 1364. Kabus V. Frost (50 N. Y. Super. I Ct. 74) 860. TABLE OF CASES CITED. CXiXlH [references are to pages.] Kahler v. Hanson (53 Iowa, 398), 553. Kahn v. Rosenheim (68 N. Y. Supp. 856), 526. Kahn v. Tobias (16 Misc. Rep. 83), 584, 595. Kain v. Hoxie (2 Hilt. 311, 316), 1069, 1095. Kaiser v. New Orleans (17 La. Ann. 178), 697. Kalis V. Shattuck (69 Cal. 593), 793, 828, 836. Kalkhoff V. Nelson (60 Minn. 284), 71. Kamerick v. Castleman (23 Mo. App. 481), 309, 314. Kane v. Metropolitan El. Ry. Co. (15 Daly, 294), 368. Kane v. Mink (64 Iowa, 84), 204. Kankakee Coal Co. v. Crane (28 111. App. 371) 1110. Kankauna Water Power Co. v. Green Bay, etc. C. Co. (142 U. S. 254), 116. Kansas City El. Co. v. Union Pac. Ry. Co. (17 Fed. Rep. 200), 634, 668. Kansas Indians (5 Wall. U. S. 737), 39. Karbach v. Fogel (63 Neb. 601), 1185. Karlson v. Healy (38 App. Div. 486), 822. Kash V. Huncheon (1 Ind. App. 361), 1288. Kassel v. Snead (21 Ky. Law Rep. 777), 1464. Kastner v. Campbell (53 Pac. Rep. 586), 1222, 1239. Kathman v. Walters (22 La. Ann. 54), 772. Kauer v. Leahy (15 Pa. Co. Ct. Rep. 243), 328. Kaufman v. Clark (7 D. C. 1), 847, 862, 863. Kaufman v. Underwood (102 S. W. Rep. 718), 1414. Kaufmann v. Liggett (209 Pa. St. 97), 1390, 1397. Kay V. Curd (6 B. Mon. Ky. 100), 322. Kean v. Kolkschneider (21 Mo. App. 538), 1190. Kearings v. Cullen (183 Mass. 298), 835, 847. Kearney v. Post ("1 Sandf. N. Y. 105), 1101. Keates v. Cadogan (10 C. B. 591), 477. Keating v. Keating (Temp. Sugd. 613), 56. Keating v. Mott (92 App. Div. 156), 835. Keating v. Mott (86 N. Y. Supp. 1021), 834. Keating v. Springer (146 111. 481), 410, 1129, 1136, 1176. Keats V. Hugo (115 Mass. 204), 410. Keay v. Goodwin (16 Mass. 1), 86, 209, 228, 486, 541. Keech v. Hall (Doug. Eng. 21), 1325. Keeler v. Eastman (11 Vt. 293), 708. Keeler v. Keeler (31 N. J. Eq. 181), 1256. Keeley Brewing Co. v. Mason (102 111. App. 381), 1074, 1411. Keeley Brewing Co. v. Mason (116 111. App. 603), 69. Keith V. Granite Mills (126 Mass. 90), 915. Keith V. Nat. Teleph. Co. (63 L. J. Ch. 373), 179. Kelley v. Kelley (23 Me. 192), 942. Kelley v. Oil Co. (57 Ohio St. 317), 454. Kelly V. Austin (46 111. 156), 1297. Kelly V. Bowerman (113 Mich. 446), 1113. Kelly V. Duffy (11 Atl. Rep. 244), 905. •cxxxiv TABLE OF CASES CITED. [references ABE TO PAGES.] Kelly V. Eyster (102 Ala. 325), 262, 939, 1431. Kelly V. Noxon (64 Hun, 281), 1195, 1207. Kelly V. O'Connor (106 Pa. St. 321), 917. Kelly V. Partridge (23 N. Y. Supp. 1027), 1348. Kelly V. Patterson (43 L. J. C. P. 320), 140. Kelly V. Rochelle (93 S. W. Rep. 164), 1457. Kelly V. Rummerfield (117 Wis. 620), 308. Kelly V. Varnes (64 N. Y. Supp. 1040), 1378. Kelly V. Waite (12 Met. Mass. 300), 195, 213, 685. Kellenberger v. Foresman (13 Ind. 475), 847, 1154. Keller v. Klopfer (3 Colo. 132), 21. Kellogg V. Kellogg (6 Barb. 116), 227. Kellogg V. Lavendar (9 Neb. 418), 992. Kellogg V. Lowe (38 Wash. 293), 1162. Kellogg V. Rockwell (19 Conn. 446), 30. Kellogg Newspaper Co. v. Peter- son (162 111. 158), 1400. Kelsey v. Tourtelotte (59 Pa. St. 184), 349. Kelsey v. Ward (16 Abb. Prac. N. Y. 98), 563. 877. Kelso V. Kelly (1 Daly, N. Y. 419), 1276. Kemp V. Derritt (3 Camp. 510), 160, 346. Kemp V. Sober (1 Sim. N. S. 517), 740. Kempf's Estate (34 Pittsb. Leg. J. 82), 45. Kempton v. Walker (9 Vt. 191), 520. Kenada v. Gardner (3 Barb. N. Y. 589), 317. Kendal v. Talbot (2 Bibb. Ky. 614), 599. Kendall B. & S. Co. v. Bain (55 Mo. App. 264), 395, 1409. Kendall v. Carland (5 Cush. Mass. 74), 91, 1115. Kendall v. Hill (64 N. H. 553), 1222. Kendall v. Kendall (7 Me. 171), 342. Kendall v. Kingsley (120 Mass. 94), 348. Kendall v. Miller (9 Cal. 591), 10. Kendall v. Moore (30 Me. 327), 201. Kendig v. Kendig (3 Pitts. Rep. Pa. 287), 547. Keneage v. Elliot (9 Watts, Pa. 258), 504. Kenin v. Guvernator (48 Atl. Rep. 1023), 216. Kennard v. Harvey (SO Ind. 37), 1432. Kennedy v. Baltimore Ins. Co. (3 Har. & J. Md. 367), 65. Kennedy v. Campbell (3 Brev. S. C. 553), 974. Kennedy v. Fay (65 N. Y. Supp. 202), 831, 847. Kennedy v. Kennedy (66 111. 190), 49L Kennelly, In re (92 N. Y. Supp. 182), 1126. Kenney v. Rhinelander (163 N. Y. 576), 816, 822, 834. Kenny v. Barns (67 Mich. 336), 839, 840. Kenny v. Collier (79 Ga. 743), 694. Kensie v. Farrell (17 N. Y. Super. Ct. 192), 1239. Kenyon v. Nichols (1 R. I. 411), 445. Keogh V. Daniell (12 Wis. 163), 1303. TABLE OF CASES CITED. CXXXV [references are to pages.] Keppler v. Heinrichsdorf (26 Ohio C. C. 16), 1383, 1387. Kerley v. Mayer (155 N. Y. 636), 733, 755, 1164. Kern v. Myll (80 Mich. 525), 792. Kernochan v. Manhattan Ry. Co. (161 N. Y. 239), 679. Kernochan v. Wilkins (3 App. Div. 596), 149. Kerper v. Booth (10 W. N. C. Pa. 79), 547. Kerr v. Clark (19 Mo. 132), 146, 1207, 1213. Kerr v. Dey (14 Pa. St. 112), 996. Kerr v. Hunt (1 W. N. C. Pa. 115), 463. Kerr v. Kingsbury (39 Mich. 150), 1271, 1288. Kerr v. Merchants' Exchange Co. (3 Edw. Ch. N. Y. 315), 1342. Kerr v. Merrill (4 Mo. App. 592), 782. Kerrains v. People (60 N. Y. 221), 300. Kershaw v. Supplee (1 Rawle, Pa. 131), 885, 1228. Kerslake v. White (2 Stark. 508), 448, 463. Kessler v. McConachy (1 Rawle, Pa. 435), 1183. Kessler v. Pearson (55 S. E. Rep. 963), 777. Kessler v. State (119 Ga. 301), 778. Ketaltas v. Coleman (2 E. D. Smith, N. Y. 408), 1052. Ketcham v. Ochs (70 N. Y. Supp. 268), 1210. Ketcham v. Ochs (77 N. Y. Supp. 1130), 139. Kew V. Merchant's Exch. Co. (3 Ed. Ch. N. Y. 315), 1158. Kew V. Trainor (150 111. 150), 620, 1055. Keyes v. Dearborn (12 N. H. 52), 343, 346. Keyes v. Slate Co. (34 Vt. 81), 760. Keyport Brick & Tile Mfg. Co. v. Lorillard (19 Atl. Rep. 391), 990. Keys V. Forrest (90 Md. 132), 956. Kidd V. Dennison (6 Barb. N. Y. 9), 712. Kidd V. Temple (22 Cal. 255), 29, 33. Kidder v. West (3 Lev. 167), 399. Kidney v. Rohrback (3 N. Y. St. Rep. 574), 544. Kidwell V. Brummagim (32 Cal. 436), 54. Kidwell V. Kidwell (84 Ind. 224), 49. Kidwelly v. Brand (Plow, 71), 641. Kieley v. Kahn (98 N. Y. Supp. 774), 535. Kiernan v. Germain (61 Miss. 498), 563, 868, 1238. Kiernan v. Linnehan (151 Mass. 543), 198. Kiernan v. Terry (26 Oreg. 494), 481, 922, 937. Kiersted v. O. & A. R. Co. (69 N. Y. 343), 106, 560. Kieth V. Kerr (17 Ind. 284), 326. Kieth V. Paulk (55 Iowa, 260), 573. Kile V. Geihner (114 Pa. St. 381), 1250. Kilgour V. Ashcomb (5 H. & J. 82), 438. Killoren v. Murtaugh (64 N. H. 51), 927. Kimball v. Cross (136 Mass. 30), 1364. Kimball v. Doggett (62 111. App. 528), 879, 1302. Kimball v. Lockwood (6 R. I. 138), 486. Kimball v. Sumner (62 Me. 305) 50, 52. ■CXXXVl TABLE OF CASES CITED. [references are to pages.] Kime v. Brooks (9 Ired. N. Car. Law, 218), 97, 98. Kimpton v. Eve (2 Ves. & B. 349), 725, 1304. Kimpton v. Walker (9 Vt. 191), 520. Kindersley v. Hughes (7 Mee. & Wei. 139), 170. Kinear v. Shands (36 Mo. 379), 1465. King V. Bird (148 Mass. 578), 699. King V. Boiling (77 Ala. 594), 950. King V. Bosserman (13 Super. Ct. 480), 310, 523. King V. Connolly (51 Cal. 181), 218. King V. Creekmore (25 Ky. Law Rep. 1292), 782, 836. King V. Davis (137 Fed. Rep. 198), 974. King V. Dickerman (11 Gray, Mass. 480), 86. King V. Enterprise Ins. Co. (45 Ind. 43), 457. King V. Fraser (6 East, 348), 559, 581. King V. Grant (43 La. Ann. 817), 700. King V. Hamilton (29 U. S. 311), 1002. King V. Johnson (7 Gray, Mass. 239), 198. King V. Jones (5 Taunt. 518), 51. King V. Kaiser (23 N. Y. Supp. 21), 381. King V. Large (7 Phila. Pa. 282), 409. King V. Lawson (98 Mass. 309), 223. King V. Pedley (1 Ad. & El. 822), 792. King V. Raab (123 Iowa, 632), 982, 985, 1000. King V. Reynolds (67 Ala. 229), 672. King V. Sharp (6 Humph. Tenn. 55), 2. King V. Wilcomb (7 Barb. N. Y. 263), 132, 1260, 1264. King V. Wilson (98 Va. 259), 140, 1290, 1374. King V. Woodruff (23 Conn. 56), 875. King V. Woodward* (3 B. & Aid. 689), 171. Kingdon v. Nottle (1 M. & Sel. 355), 51, 884. Kingsbury v. Collins (4 Bing. 202), 1306. Kingsbury v. Westfall (61 N. Y. 359), 596. Kingsland v. Clark (24 Mo. 24), 1178. Kingsland v. Ryckman (5 Daly, N. Y. 13), 80. Kingsmill v. Millard (11 Ex. 313), 961. Kinney v. Lamon (8 Blackf. Ind. 350), 934. Kinney v. Watts (14 Wend. N. Y. 38), 698. Kinsley v. Ames (2 Met. Mass. 29), 232, 234. Kinsman v. Kinsman (1 Root, Conn. 180), 1315. Kiplinger v. Green (61 Mich. 340), 315. Kirby v. Associates (14 Gray, Mass. 249), 808. Kirchner v. Smith (207 Pa. St. 431), 828. Kirk V. Taylor's Heirs (8 B. Mon. Ky. 62), 317. Kirkland v. Wolf (3 Wkly. Law Bui. Ohio, 114), 1214, 1293. Kirkpatrick v. Peshine (24 N. J. Eq. 206), 756. Kirsley v. Duck (2 Vern. 684), 343. Kirtland v. Pounsett (2 Taunt. 145), 201. TABLE OF CASES CITED. CXXXVll [references are to pages. 1 Kirtland v. Pounsett (1 Taunt. 570), 559. Kirton v. Braithwaite (1 Mee. & Wei. 310), 537. Kissam v. Barclay (17 Abb. Pr. N. Y. 360), 1244. Kistler v. McBride (65 N. J. Law, 553), 522. Kistler v. Wilson (77 111. App. 149), 1176. Kitchen v. Lee (11 Paige Ch. N. Y. 107), 15. Kitchen Bros. Hotel Co. v. Philbin (2 Neb. Unof. 340), 400, 416, 697, 1142. Kites V. Church (142 Mass. 589), 510. Kittle V. St. John (7 Neb. 73), 1195. Klay V. Godwin (16 Mass. 1), 215. Kleckner v. Klapp (2 Watts & S. 44), 106. Kleespies v. McKenzie (12 Ind. App. 404), 139. Klein v. Gehrung (24 Tex. 232), 409. Klein v. Vinyard (38 Mo. 447), 1465. Klie V. Von Broock (56 N. J. Eq. 18), 713, 725. Kline v. Beebe (6 Conn. 494), 10. Kline v. Chase (17 Cal. 596), 204. Kline v. Jacobs (68 Pa. St. 87), 561, 848, 874. Kline v. McLain (33 W. Va. 32), 848, 904. Klingenstein v. Goldwasser (58 N. Y. Supp. 342), 163. Klingle v. Ritter (58 111. 140), 454. Kloke V. W^olf (111 N. W. Rep. 134), 124. Knapp V. Jones (143 111. 375), 1110. Knapp V. Marlboro (29 Vt. 282), 697. Knapp V. Smith (27 N. Y. 277), 24. Kneeland v. Beare (11 N. D. 233), 839. Kneeland v. Schmidt (78 Wis. 345), 1195, 1198, 1235. Knefel v. Daly (91 111. App. 321), 466. Knevett v. Poole (Cro. Eliz. 463), 1307. Knickerbocker Life Ins. Co. v. Pat- erson (75 N. Y. 589), 44. Knickerbocker v. Killmore (9 Johns. N. Y. 106), 1088. Knickerbocker Tr. Co. v. Pa. Cord- age Co. (62 N. J. Eq. 624), 1248. Knight V. Bennett (4 Bing. 364), 192, 1314. Knight V. Coal Co. (47 Ind. 105), 186. Knight V. Orchard (92 Mo. App. 466), 1279. Knight V. Mory (Cro. Eliz. 60), 1054. Knight V. Quigley (2 Camp. 505), 216, 228. ?*night's Case (Moore, 199), 86. Knoepfel v. Fire Ins. Co. (68 N. Y. 639), 414, 753. Knoepker v. Redel (116 Mo. App. 62), 362. Knolle's Case (Dyer, 5b), 1114. Knott V. Giles (27 App. D. C. 581), 1416. Knowles v. Hull (99 Mass. .562), 236. Knowles v. Inman (16 Colo. 385), 938. Knowles v. Murphy (107 Cal. 107), 334, 920, 945. Knowles v. Nichols (14 Fed. Cas. No. 7,897), 445. Knowles v. Sells (41 Kan. 171), 1465. Knowles v. Steele (59 Minn. 452), 377. cxxxvin TABLE OF CASES CITED. [references ABE TO PAGES.] Knox V. Bailey (4 Mo. App. 581), 519, 573. Knox V. Hexter "(Tl N. Y. 461), 691. Knox V. Hunt (18 Mo. 243), 1402, 1441. Knutsen v. Clinque (99 N. Y. Supp. 910), 898. Kobbi V. Underbill (3 Sand. Ch, N. Y. 277), 547. Koebler v. Brady (144 N. Y. 135), 647. Koehler & Co. v. Kennedy (72 N. Y. Supp. 595), 1393. Koenig v. Miller Bros. Brewing Co. (38 Mo. App. 182), 1213. Kobne v. White (12 Wasb. 199), 880. Koken Iron Works v. Kinealy (86 Mo. App. 199), 164. Kolasky v. Micbels (120 N. Y. 635), 1391, 1393, 1394. Kollock V. Kaiser (98 Wis. 104), 1363, 1374. Kollock V. Scribner (98 Wis. 104), 1373. Koons V. Steele (19 Pa. St. 203), 964. Kooystra v. Lucas (1 D. & R. 506), 417, 442. Koplitz V. Gustanes (48 Wis. 48), 275. Kopp, In re (2 N. Y. Supp. 495), 15. Korn V. N. Y. Elevated R. R. Co. (60 Hun, N. Y. 583), 680, 681. Kornegay v. Collier (65 N. Car. 69, 72), 492. Kower v. Gluck (33 Cal. 40), 1212, 1231. Kramer v. Cook (7 Gray, Mass. 550), 1378, 1379, 1364. Kratemeyer v. Brink (17 Ind. 509), 317. Krause v. Krause (58 111. App. 559), 1077. Krause v. Stein (173 Pa. St. 221), 361. Krebs v. Dodge (9 Wis. 1), 958. Kreiss v. Seligman (8 Barb. N. Y. 439), 776. Kretzer v. Wysong (5 Gratt. Va. 9), 685. Kribbs v. Alford (120 N. Y. 519), 1080, 1102. Krouse v. Ross (14 Fed. Cases, 7,939), 1264. Kruegel v. Berry (75 Tex. 230), 987. Kruger v. Ferrant (29 Minn. 395), 782, 849. Krumdieck v. Ebbs (84 N. Y. Supp. 825), 1219. Krumweide v. Schroeder (58 Iowa, 160), 678. Kugel V. Painter (166 Pa. St. 592), 370. Kuhlman v. Meier (7 Mo. App. 260), 1265. Kuhn V. Heavenrich Co. (115 Wis. 147), 848. Kuhn V. Kuhn (70 Iowa, 682), 219. Kuhn V. Smith (125 Cal. 615), 218. Kuschell V. Campau (49 Mich. 34), 1408. Kuttar V. Smith (2 Wall. U. S. 491), 874. Kuttner v. Haines (135 111. 382), 1456. L. Lacey v. Davis (4 Mich. 140), 957. Lachman v. Deisch (71 111. 59), 681, 704. Lack V. Wyckoff (11 N. Y. St. Rep. 678), 1153. Ladd V. Brown (94 Mich. 136), 1313. Ladd V. Shattock (90 Ala. 134), 718, 1336. TABLE OF CASES CITED. CXXXIX [references are to pages.] Ladly v. Creighton (70 Pa. St. 490), llOS. Ladner v. Balsey (103 Iowa, 674), 478, 1449. Ladnier v. Stewart (38 So. Rep. 748), 391. La Farge v. Mansfield (31 Barb. N. Y. 345), 561, 564, 674, 868. Laffan v. Naglee (9 Cal. 662), 996, 1081. Lafferty v. Hawes (63 Minn. 13), 1209. Lafferty v. Schuykill River East S. R. Co. (124 Pa. St. 297), 1320. Lageman v. Kloppenburg (2 E. D. Smith, N. Y. 126), 544. Lagerfelt v. McKie (100 Ala. 430), 107, 328. Laguerenne v. Dougherty (35 Pa. St. 45), 139. Laimbeer v. Tailer (125 N. Y. 725), 141. Laird v. McGeorge (37 N. Y. Supp. 631), 847. Lake v. Campbell (18 111. 106), 331, 334, 391. Lake v. Gaines (75 Ala. 143), 1438. Lake Erie Gas Co. v. Patterson (184 Pa. St. 364), 8. Lake Superior Ship Canal Ry. & Iron Co. V. McCann (86 Mich. 106), 1409, 1410. Lakin v. Dolly (53 Fed. Rep. 333), 927, 929. Lamar v. Dixon (L. R. 6 H. L. 514), 192. Lamar v. McNamee (10 G. & J. Md. 126), 1193. Lamar M. & Elev. Co. v. Craddock (5 Colo. App. 203), 366. Lamb v. Lamb (146 N. Y. 317), 573. Lamb v. Swain (3 Jones, N. C. 370), 951. Lambert v. Hoke (14 Johns. N. Y. 383), 439. Lambert v. Huber (50 N. Y. Supp. 793), 937, 958. Lambert v. Huskell (80 Cal. 611), 1185. Lambert v. Norris (2 M. & W. 333), 580. Lambeth v. Ponder (33 Ark. 707), 1436. Lambeth v. Warner (2 Jones, N. C. 165), 717. Lametti v. Anderson (6 Cow. N. Y. 302), 1283. Lamme v. Dodson (4 Mont. 560), 960. Lampher v. Glenn (37 Minn. 4), 1340. Lamphere v. Lowe (3 Neb. 131), 1244. Lamson v. Clarkson (113 Mass. 348), 934, 935, 936. Lancashier v. Mason (75 N. Car. 455), 492. Lancaster v. De Trafford (31 L. J. Ch. 554), 386. Lancaster v. Roberts (144 111. 213), 342. Lancaster v. Whiteside (108 Ga. 801), 1429. Land Co. v. Manning (Mo. App. 71 S. W. Rep. 696), 490. Landau v. O. J. Gude Co. (84 N. Y. Supp. 672), 110. Lander v. Bagley's Contract (61 L. J. Ch. 707), 387, 607. Lander's Contract, In re (1892, 3 Ch. 41), 345. Landsberg v. Tivoli Brew. Co. (10 Det. Leg. N. 63), 202. Landsell v. Grover (17 Q. B. 589), 182. Landt v. McCullough (121 111. App. 328), 1182. Landt v. Schneider (31 Mont. 15), 847, 853, 1209. Lane v. Cox (1 Q. B. 415), 785. Lane v. Crockett (7 Price, 566), 1459. J cxl TABLE OF CxVSES CITED, [refebexces are to pages.] Lane v. King (8 Wend. N. Y. 584), 288, 1326. J.ane's Lessee v. Osment (9 Yerg. Tenn. 86), 945. Lane v. Nelson (167 Pa. St. 602), 156. Lane v. Nelson (31 Atl. Rep. 864), 567. Lane v. Pollard (88 Mo. App. 326), 1435. Lane v. Young (66 Hun, 563), 934. Lane v. Loung (21 N. Y". Supp. 838), 936. Laney's Estate (14 Pa. C. C. 4), 15, 848. Lang V. Crothers (51 S. W. Rep. 271), 956. Lang V. Henry (54 N. H. 57), 387. Langan v. Schief (55 Mo. App. 213), 173. Langford v. United States (12 Ct. CI. 338), 35. Langraede v. Weaver (65 Ohio St. 17), 333, 1111. Langsdorf v. LeGardeur (27 La. Ann. 364), 1215. Langton v. Horton (1 Hare, 549), 1428. Lankin v. Terwillinger (22 Oreg. 97), 446. Lanning v. Howell (2 N. J. Law, 256), 560. Lansdale v. Richardson (1 W. N. C. Pa. 413), 459. Lansing v. Thompson (8 App. Div. 54), 840, 1347. Lapere v. Luckey (23 Kan. 534), 409. Laphani v. Norton (71 Me. 83), 317. La Plant v. LaZear (31 Iiul. Api). 433), 813. Larkin v. Avery (23 Conn. 304), 162. Larman v. Benson (8 Mich. 18), 430. Larned v. Hudson (60 N. Y. 102), 189, 191, 218. Larousini v. Werlien (52 La. Ann. 424), 248. Larrabee v. Lumbert (34 Me. 79), 322. Lash V. Ames (50 N. E. Rep. 996), 209, 210. Lasher v. Graves (124 111. App. 646), 539. Lassell v. Reed (6 Me. 222), 1331. Last V. Dinn (28 L. J. Ex. — ), 87. Lataillade v. Santa Barbara Gas Co. (58 Cal. 4), 937. Latham v. Atwood (Cro. Car. 515), 1305. Lathers v. Coates (41 N. Y. Supp. 373), 1149. Lathers v. Hunt (13 N. Y. Supp. 813), 590. Lathrop v. Commercial Bank (8 Dana, Ky. 114), 65. Lathrop v. Standard Oil Co. (83 Ga. 307), 573. Latta V. Weis (131 Mo. 230), 1093. Lattimer v. Livermore (72 N. Y. 174), 441. Laugher v. Williams (1 Salk. 310), 884. Laughran v. Smith (75 N. Y. 206), 197, 275. Law V. Haley (9 Ohio Dec. 785), 412, 414. Lawrence v. Brown (5 N. Y. 394), 1204. Lawrence v. Burrell (17 Abb. N. C. N. Y. 313), 1143. Lawrence v. Conlan (28 Misc. Rep. 44), 28. Lawrence v. Edwards (7 Ohio St. 194), 1406. Lawrence v. Fox (20 N. Y. 268), 532. Lawrence v. French (25 Wend. 443), 1134. Lawrence v. Haramett (3 J. J. Marsh, Ky. 287),' 559. TABLE OF CASES CITED. cxii [referk.vces are to pages.] Lawrence V. Mycenian Marble Co. (20 N. Y. Supp. 698), 1147. Lawrence v. Wardwell (6 Barb. N. Y. 623), 696. Lawrence v. Webster (44 Cal. 385), 957. Lawson v. Mowry (52 Wis. 219), 921. Lawton v. Lawton (3 Atk. 13), 1251, 1269. Lawton v. Salmon (1 H. Black. 259), 1250, 1252. Lay V. Bennett (4 Colo. App. 252), 1167. Lazarus v. Hellman (11 Abb. N. C. N. Y. 93), 497. Lazarus v. Phelps (152 U. S. 81), 573. Ld. Grey de Wilton v. Saxton (6 Ves. 106), 725. Lea V. Netherton (9 Yerg. Tenn. 315), 966. Lea V. Polk, etc. Co. (21 How. U. S. 493), 343. Leacester v. Biggs (1 Taunt. 367), 23. Leach v. Beattie (33 Vt. 195), 311. Leach v. Thomas (7 Car. & P. 328), 138. Leache v. Goode (19 Mo. 501), 1005, 1006. Leadbeater v. Roth (25 111. 587), 1136, 1141, 1154, 1182. Leahy v. Liebman (67 Mo. App. 191), 163. Learned v. Tlllotson (97 N. Y. 12), 1218. Learned v. Wannemacher (9 Allen, Mass. 416), 385. Leary v. Hutton (129 N. Y. 649), 1371. Leary v. Hutton (58 Hun, N. Y. 610), 1375. Leatherman v. Oliver (151 Pa. St. 646), 644. Leaux v. City of N. Y. (87 App. Div. 405), 71. Leavitt v. Fletcher (10 Allen, Mass. 119), 883, 1351. Leavitt v. Murray (Wright, Ohio. 707), 338. Leavitt v. Stern (55 111. App. 416), 384. Lebanon School Dist. v. Lebanon Seminary (Pa. 12 Atl. Rep. S57), 922. Lecatt V. Stewart (2 Stew. Ala. 474), 957. Ledbetter v. Quick (90 N. Car. 276), 1418. Ledger v. Stanton (2 John. & H. 689), 534. Lee v. Adkins (1 Minor, Ala. 187), 232. Lee V. Gaskell (1 Q. B. Div. 700), 380, 1295. Lee V. Hernandez (10 Tex. 137), 19L Lee V. Ingraham (94 N. Y. Supp. 284), 834. Lee V. Kirby (10 Weekly Law Bui. 449), 917. Lee V. Lee (83 Iowa, 565), 931. Lee V. Livingston (143 Mich. 203), 84. Lee V. Mass. Ins. Co. (6 Mass. 208), 342. Lee V. McDaniel (1 A. K. Marsh, Ky. 234), 958. Lee V. McLaughlin (86 Me. 410), 809. Lee V. Meeker (2 Wis. 487), 6S2. Lee V. Mosley (1 You. & C. 607), 604. Lee V. Payne (4 Mich. 106), 1080, 1095. Lee V. Quan Wo Chong (91 Cal. 593), 234. Lee V. Risdon (7 Taunt. 18S), 1256, 1257. 1264. Lee V. Smith (9 Ex. 662), 147, 525. Lee V. Smith (42 Ohio St. 458), 917. cxlii TABLE OF CASES CITED. [references are to pages.] Leeds v. Burrows (12 East, 1), 1337. Leeds v. Chatham (1 Sim. 146), 883, 1345. Legg V. Strudwick (2 Salk. 414), 385. Leggett V. La. Purchase Ex. (97 S. W. Rep. 976), 1207. Legh V. Hewitt (4 East, 154), 763. Lehman v. Howze (73 Ala. 302), 1423. Lehmann v. M'Arthur (L. R. 3 Eq. 746), 1072. Lehman v. Nolting (56 Mo. App. 549), 99, 150, 194, 195. Lehman v. Stone (16 S. W. Rep. 784), 1431. Lehmaier v. Jones (91 N. Y. Supp. 687), 615, 893, 1021. Lehmayer v. Moses (174 N. Y. 518), 1360. Leick V. Tritz (94 Iowa, 322), 880. Leiferman v. Osten (64 111. App. 578), 804. Leigh V. Dickson (L. R. 12 Q. B. Div. 194), 82, 84, 91. Leinenkugel v. Kehl (73 Wis. 238), Leischmann v. White (1 Allen, Mass. 489), 1180. Leitch V. Simpson (Ir. R. 5 Eq. 613), 1071. Leiter v. Day (35 111. App. 248), 1186. Leiter v. Pike (127 111. 387), 352. 1178. Leithan v. Vaught (115 La. 249), 808. Lemar v. Miles (4 Watts, Pa. 330), 1250. LeMay v. Williams (32 Ark. 166), 343. Lembeck Co. v. Kelly (63 N. J. Eq. 402), 390. Lemington v. Stevens (48 Vt. 38), 334. Lemon v. Wolff (121 Cal. 272), 1404. Lenderking v. Rosenthal (63 Md. 28), 265, 1447. Lendle v. Robinson (65 N. Y. 894), 812, 834. Lennon v. Napper (2 Sch. & Let. 684), 1386. Lennon v. Palmer (5 L. R. 5 Jr. 100), 941. Lent V. Curtis (24 Ohio C. C. 592), 988. Lenz V. Aldrich (26 N. Y. Supp. 1022), 824. Leonard v. Armstrong (73 Mich. 577), 1145, 1153. Leonard v. Burgess (16 Wis. 41), 492,1113. Leonard v. Gunther (62 N. Y. Supp. 99), 839. Leonard v. Hornelsville (58 N. Y. Supp. 266), 793. Leonard v. Kingman (136 Mass. 123), 258. Leonard v. Storer (115 Mass. 86), 828. Leonard v. White (7 Mass. 6), 447. Leo Wolf V. Merritt (21 Wend. N. Y. 331), 523. Leppla V. Mackey (31 Minn. 75), 1391, 1392. Lerch v. Times Co. (91 Iowa, 750), 855. Leroy v. Piatt (4 Paige, N. Y. 77), 438. Lesley v. Randolph (4 Rawle, Pa. 123), 131, 172. Leslie v. Hinson (83 Ala. 266), 1411, 1434. Leslie v. Smith (32 Mich. 65), 1277. Lespini v. Porta (89 Cal. 464), 1215. Lettick V. Honnold (63 111. 335), 1177, 119L TABLE OF CASES CITED. C'xliii [BEFEUEXCES ABE TO PAGES.] Lever v. Koffler (70 Law J. Ch. 395), 252. Levering v. Langley (8 Minn. 107), 1213. Levey v. Dyess (51 Miss. 501), 896. Levi v. Lewis (6 C. B. N. S. 766), 574. Levick v. Coppin (2 W. Bl. 801), 25, 56. Levine v. Baldwin (87 App. Div. 150), 841, 886. Levitsky v. Canning (33 Cal. 299), 699,703. Levy V. Bend (1 E. D. Smith, N. Y. 169), 565. Levy V. Korn (61 N. Y. Supp. 1109), 840. Lewis V. Adams (61 Ga. 559), 945. Lewis V. Angermiller (89 Hun, 65), 1199, 1220, 1228. Lewis V. Arnold (13 Gratt. Va. 454), 1432. Lewis V. Baker (75 Law J. K. B. 848), 131. Lewis V. Beard (13 East, 210), 198. Lewis V. Brandle (107 Mich. 7), 111. Lewis V. Burr (8 Bos. N. Y. 140), 1062. Lewis V. Carson (16 Mo. App. 342), 51. Lewis V. Chisolm (68 Ga. 40), 563, 852, 867, 875. Lewis V. Christian (40 Ga. 187), 1463. Lewis V. Clark (86 Md. 326), 427. Lewis V. Culbertson (11 S. & R. Pa. 59), 564. Lewis V. Effinger (30 Pa. St. 281), 874, 1278. Lewis V. Hughes (12 Colo. 208), 554, 1349. Lewis V. Jones (17 Pa. St. 262), 760, 133L Lewis V. Klotz (39 La. Ann. 259), 1318, 1327. Lewis V. Lyman (22 Pick. Mass. 437), 1331. Lewis V. North (87 N. W. 312), 389. Lewis V. Ocean Nav. & Pier Co. (125 N. Y. 341), 1265, 1269, 1287. Lewin v. Pauli (19 Pa. Super. Ct. 447), 814. Lewis V. Payn (4 Wend. N. Y. 423), 1154, 1180. Lewis V. Perry (149 Mo. 257), 1289, 1378, 1379. Lewis V. Ringo (3 A. K. Marsh. Ky. 247), 41, 55. Lewis V. St Louis (69 Mo. 695), 663. Lewis V. Stake (18 Miss. 20), 1233. Lewis V. Stephenson (67 Law J. Q. B. 296), 962, 1075, 1370, 1373, 1382. Lewis V. Wilkins (62 N. C. 303), 492. Lewiston & A. R. Co. v. Grand Trunk R. R. Co. (97 Me. 261), 1017. Leydecker v. Brintnall (158 Mass. 292), 805, 813, 828. Leyman v. Abeel (16 Johns. N. Y, 30), 1195. L'Hussler v. Zallee (24 Mo. 13), 672. Libbey v. Staples (39 Me. 161), 329,330. Libbey v. Tilford (48 Me. 316), 782,855. Libby v. Cushman (29 Me. 429), 1450. Lichtenthaler v. Thompson (13 S. & R. Pa. 158), 1443. Lichtig V. Poundt (52 N. Y. Supp. 136). 836. Liebe v. Nicolai .(30 Oreg. 364), 522. cxliv TABLE OF CASES CITED. [references are to pages.] Lieberthal v. Montgomery (129 Mich. 369), 1340. Liebmann's Sons Brew. Co. v. Lauter (76 N. Y. Siipp. 748), 1058. Lienow v. Ritchie (8 Pick. Mass. 235), 679, 682. Liebschutz v. Moore (70 Ind. 142), 1228. Life V. Sechrest (1 Ind. 512), 937. Liggett V. Shira (159 Pa. St. 350), 641. Lightbody v. Truelson (39 Minn. 310,301. Lightfoot V. Tenant (1 Bos. & Pul. 555), 461, 777. Lightner v. Brooks (15 Fed. Cas. No. 8,344), 690. Lile V. Barnett (2 Bibb. Ky. 166), 1274. Lilley v. Associates (101 Mass. 532), 517. Lincoln Trust Co. v. Nathan (175 Mo. 32), 610, 872, 1042, 1340, 1341, 1351. Lindblom v. Berkman (43 Wash. 356), 421. Lindeke v. Associates Realty Co. (77 C. C. A. 56), 170, 605. Lindemayer v. Ganst (70 Miss. 693), 958. Lindenbower v. Bentley (86 Mo. 515), 685. Lindley v. Dakin (13 Ind. 388), 4S2. Lindley v. Hoffman (22 Ind. App. 237), 361, 362. Lindley v. Miller (67 111. 244), 564. Lindley v. Tibbal (40 Conn. 522), 386. Lindsay v. Leighton (150 Mass. 285), 804, 813, 828. Lindsay v. Lindsay (11 Vt. 621), 351. Lindsey v. First Nat. Bank (115 N. C. 553), 411 Lindsey v. Lindsey (45 Ind. 552), 657. Lindsley v. Schnaider Brew. Co. (59 Mo. App. 271), 1057, 1080. Lindstrom v. Pennsylvania Co. (212 Pa. St. 391), 826, 836. Line v. Stephenson (6 Scott, 447), 6^8. Lingles v. Phelps (20 Wis. 398), 1427. Linke v. Walcutt (69 Ohio Ct. 531), 848. Linn v. Ross (10 Ohio, 412), 1158, 1340,1345. Linton v. Hart (25 Pa. St. 193), 541. Linwood Park Co. v. Van Dusen (63 Ohio St. 183), 729. Liquid Carbonic Acid Mfg. Co. v. Lewis (32 Tex. Civ. App. 481), 1435. Lisburne v. Davies (L. R. 1 C. P. 260), 962. Lisle V. Rogers (18 B. Mon. Ky. 528), 343. Lister v. Lane (62 L. J. Q. B. 583), 887. Lister Ag. Chem. Works v. Selby (68 N. J. Eq. 271), 984. Litchfield v. Flint (104 N. Y. 543), 532. Little V. Banks (85 N. Y. 258), 532,586. Little V. Dyer (35 111. App. 85), 469. Little Falls v. Hausdorf (127 Fed. Rep. 442), 1294. Little V. McAdaras (38 Mo. App. 187), 847. Little Miami Elev. Co. v. City of Cincinnati (30 Ohio St. 629), 116. Little V. Palister (4 Me. 209), 212. Little V. Pallister (3 Me. 6), 688. Little V. Pearson (7 Pick. Mass. 198), 317, 318. TABLE OF CASES CITED. cxlv [references are to paces.] Littleton v. Clayton (77 Ala. 571), 920,923. Littleton v. Wynn (31 Ga. 583), 258, 519, 572. Lively v. Ball (2 B. Mon. Ky. 53), 920. Livermore v. Eddy (33 Mo. 547), 1207. Livingston v. Miller (8 N. Y. 283), 528. Livingston v. Potts (16 John. N. Y. 28), 1204. Livingston v. State (96 Ala. 44), 1248. Livingston v. Stickles (7 Hill, N. Y. 253), 743. Livingston v. Sulzer (19 Hun, N. Y. 375), 1250, 1252, 1283. Livingstone v. Reynolds (26 Wend. N. Y. 122), 708. Livingstone v. Tanner (14 N. Y. 480), 218, 229, 234. Livingstone v. Tonapkins (4 Johns Ch. 415), 665. Lloyd V. Capps ( 29 S. W. Rep. 505), 1184. Lloyd V. Cozens 12 Ash. Pa. 131), 172,1093. Lloyd V. Crispe (5 Taunt. 249), 1071. Lloyd V. Gregory (Cro. Car. 502), 1201. Lloyd V. Langford (2 Mod. 17G), 1199, 1226. Lloyd V. Powers (4 Dak. 62), 312. Loan & Discount Co. v. Drake (6 C. B. 796), 1294. Lobdell V. Hayes (12 Gray, Mass. 236), 49, 50. Lobdell V. Mason (71 Miss. 936), 98. Locke V. Coleman (2 T. B. Mon. Ky. 12), 156. Locke V. Coleman (4 T. B. Mon. Ky. 315), 389. Locke V. Frasher (79 Va. 409), 471, 930, 949. Locke V. Rowell (47 N. H. 46), 122,123. Lockwood V. Lockwood (22 Conn. 425), 146, 192, 196, 582, 877, 1222, 1340. Lockwood V. Stradley (1 Del. Ch. 298), 53. Lockwood V. Thunder Bay R. Boom Co. (42 Mich. 536), 258. Lockwood V. Walker (3 McLean, N. O. 431), 943. Lodge V. White (30 Ohio St. 569), 1057. Loeser v. Liebman (137 N. Y. 163), 1282, 1300. Lofft V. Dennis (1 E. & E. 474), 851. Loftus Case (Cro. Eliz. 279), 27. Loftus V. Maxey (73 Tex. 242), 691. Logan V. Anderson (2 Doug. Mich. 101), 1199.1238. Logan V. Barr (4 Harr. Del. 546), 1193. Logan V. Green (39 N. C. 370), 1228,1233. Logan V. Herron (8 S. & R. Pa. 459), 139, 156. Logan V. Simmons (3 Ired. Eq. N. C. 487), 21. Loggins V. Buck's Adm'rs (33 Tex. 113), 1353. Lohmiller v. Water Power Co. (51 Wis. 683), 794. Loley V. Heller (1 W. N. C. Pa. 613), 463. Lomax v. Le Grand (60 Ala. 537), 1425, 1431, 1454. Lombardi v. Shero (14 Tex. Civ. App. 594), 1316. Lomis V. Ruetter (9 Watts. Pa. 516), 876. London v. Milford (14 Ves. 58). 1383. London v. Warfield (5 J. J. Marsh. Ky. 196), 1336. cxlvi TABLE OP CASES CITED. [refebences aee to pages.] London City v. Mitford (14 Ves. 42), 1385. London City v. Richmond (Pre. Ch. 156), 1105. London & N. W. Ry. Co. v. Gar- nett (21 L. T. 352), 749. Long V. Fitzsimmons (1 W. & S. Pa. 530), 848. Long V. Fletcher (2 Eq. Abr. 5), 479. Long V. Gieriet (57 Minn. 278), 563,877. Long V. Madison & Flax Co. (1 A. K. Marsh. 105), 64. Long V. Noe (49 Mo. App. 19), 678. Long V. Poth (37 N. Y. Supp. 670), 101. Long V. Ramsay (1 Serg. & Pl. Pa. 72), 333, 334. Long V. Stafford (103 N. Y. 274), 1207, 1208, 1378. 1379. Long Bros. v. Bolen Coal Co. (56 Mo. App. 605), 170. Longendyke v. Anderson (101 N. Y. 625), 446. Longfellow v. Longfellow (54 Me. 240), 923. Longmore v. Tierman (3 Pitts. Pa. 62), 1023. Longobardi v. Yuliano (33 Misc. Rep. 472), 584, 597. Loomer v. Dawson (Cheeves, S. C. 68), 386. Loomis V. Lincoln (24 Vt. 153), 1400. Loomis V. O'Neal (73 Mich. 522), 309,311. Loomis V. Pingree (43 Me. 299), 350. Looney v. McLean (129 Mass. 33), 804,813. Lopper V. Bouve (9 Pa. Super. Ct. 452), 1215, 1379. Lord V. Johnson (120 111. App. 55), 1456. Lord D'Arcy v. Askwith (Hob. 234), 706. Lord Chesterfield v. Bolton (Conn. Rep. 627), 1340. Lord St. John v. Lady St. Joha (11 Ves. Jr. 526), 21. Lorenzen v. Wood (1 McGloin, La. 373), 852. Lore's Heirs v. Truman (1 Ohio Dec. 510), 349. Loring v. Cooke (3 Pick. Mass. 48), 538. Loring v. Harmon (84 Mo. 123), 920. Loring v. Taylor (50 Mo. App. 81), 258. Losee v. Buchanan (51 N. Y. 476), 904. Loth V. Carty (85 Ky. 591), 1084. Lothrop V. Thayer (138 Mass. 466), 843. Loughran v. Ross (45 N. Y. 792), 1265, 1269, 1287. Loughran v. Smith (11 Hun, N. Y. 311), 146, 148. Louisville v. Terminal Co. (72 S. W. Rep. 945), 836. Louisville & N. R. Co. v. Smith (143 Ala. 335), 686. Loupe V. Genin (45 N. Y. 119), 782, 847. Loupe V. Wood (56 Cal. 586), 847. Lounsbery v. Snyder (31 N. Y. 514), 148, 1131, 1132, 1136. Love V. Bdmonston (23 N. C. 152), 198, 199, 212, 218. Love V. Edmonston (1 Ired. N. C. 152), 949. Love v. Law (57 Miss. 596), 1402. Love v. Teter (24 W. Va. 741), 472. Lovejoy v. McCarty (94 Wis. 341), 1093,1218. Lovelock V. Franklyn (8 Q. B. 371), 344. Lovering v. Lovering (13 N. H. 513), 599. TABLE OP CASES CITED. cxlvii Treferexces are to pages.] Lovett V. German Reformed Church (9 How. Pr. N. Y. 220), 488. Lovett V. United States (9 Ct. CI. 479), 882. Lowber v. Bangs (2 Wall. U. S. 728), 601, 604. Lowe V. Adams (70 L. J. Ch. 783), 273. Lowe V. Brown (22 Ohio, 463), 568. 570. Lowe V. Emerson (48 111. 150), 924,964. Lowe V. L. & N. W. Ry. Co. (18 Q. B. 632), 578. Lowe V. London R. R. Co. (14 Bng. L. & E. R. 19), 62. Lowell V. Hilton (11 Gray, Mass. 407), 602. Lowell V. Strahan (145 Mass. 1), 290, 402, 412, 1050. Lowenstien v. Keller (3 Kulp. Pa. 361), 1188. Lowery v. Peterson (75 Ala. 109), 1117. Lowndes v. Fountaine (11 Ex. 487), 764. Lowrey v. Reef (1 Ind. App. 244), 5. Lowther v. Caril (1 Vern. 221), 386. Lowther v. Troy (1 Jr. T. R. 162), 1201. Lucas V. Brooks (85 U. S. 436), 178,942. Lucas V. Comerford (3 Bro. C. C. 166), 1105. L-ucas V. Coulter (104 Ind. 81), 782,785. Lucas V. Daniels (34 Ala. 188), 968. Lucas V. How (Sir T. Raym. 250) 639. Lucas, Ex parte (3 Deac. & C. 144), 607. Lucas V. McCann (50 Mo. App. 638), 1023. Lucas V. Price (4 Ala. 672), 53. Lucas V. Rickerich (1 Lea, Tenn. 726), 22. Lucas V. Sunbury, etc. R. Co. (32 Pa. St. 458), 393. Lucente v. Davis (101 Md. 526), 745. Luchs V. Jones (1 MacArthur, D. C. 345), 232. Luckenbill, In re (127 Fed. Rep. 984), 1121. Lucy v. Lucy (55 N. H. 9), 51. Lucy V. Wilkins (33 Minn. 441), 592, 1094, 1207. 1223. Ludford v. Barber (1 Term R. 86), 3, 5. Ludington v. Garlock (55 Hun, 612), 176. Ludington v. Seaton (66 N. Y. Supp. 497)v 1155. Ludlow V. McCarthy (5 App. Div. 517), 564. Luff V. Burrows (12 East, 1), 1273. Lukens v. Hedley (1 W. N. C. Pa. 266), 855. Lumley v. Backus (73 Fed. Rep. 767), 822. Lumley v. Gilruth (65 Miss. 23), 1417. Lumley v. Hodgson (16 East, 99), 575. Luna V. Gage (37 111. 27), 601. Lund V. Ozanne (84 Pac. Rep. 710), 553. Lundin SchoefEel (167 Mass. 465), 668. Lunn V. Gage (37 111. 19), 563. Lunsford v. Alexander (20 N. C. 166), 948. Lunt V. Brown (13 Me. 236), 686. Lunt V. Norris (1 Burr. 290), 602. Luney v. Brown (Lutch. 99), 110. Lunsford v. Turner (5 J. J. Marsh. Ky. 104), 927. Lush V. Druse (4 Wend. N. Y. 313), 337, 528. cxlviii TABLE OP CASES CITED. [references are to pages.] Lushington v. Baldero (15 Beav. 1),726. Lutz V. Wainwright (193 Pa. St. 541), 465. Lux V. Haggin (69 Cal. 390), 684. Luxmore v. Robinson (1 B. & Aid. 584), 884, 897. Lybbe v. Hart '(54 L. J. Ch. 860), 764. Lyde v. Russell (1 Barn. & Aid. 394), 1264. Lyford v. Toothacher (39 Me. 28), 685. Lyles V. Murphy (38 Tex. 75), 964. Lyman v. Townsend (24 La. Ann. 625), 772. Lynch v. Baldwin (69 111. 210), 564, 1131, 1133, 1142. Lynch, In re (15 Fed. Cas. No. 8,634), 1119. Lynch v. Lynch (6 Ir. 7 R. 131), 1194. Lynch v. Onondaga Salt Co. (64 Barb. N. Y. 558), 519, 573, 698. Lynch v. Ortlieb (87 Tex. 590), 802. Lynch v. Sauer (16 Misc. Rep. 1), 471, 480, 699, 1173. Lynch v. Speed (15 Daly, 207), 782. Lynde v. Hough (27 Barb. N. Y 415), 1052. Lynn v. Reed (13 M. & W. 285), 1194, 1199. Lynn v. Ross (10 Ohio, 412), 883. Lynn v. Waldron (36 Wash. 82), 1263, 1289. Lyon V. Buerman (57 Atl. Rep. 100), 847. Lyon V. Cunningham (136 Mass. 532), 193, 198. Lyon V. Kain (36 111. 363), 341. Lyon V. La Master (103 Mo. 612), 182, 183. Lyon V. Miller (24 Pa. St. 392), 464. Lyon V. Woshburn (3 Colo. 201), 920. Lyons v. Deppen (90 Ky. 305), 1437. Lyons v. Gavin (88 N. Y. Supp. 252), 783. Lyons v. Kain (36 111. 362), 342. Lyons v. Osborn (45 Kan. 650),. 1369,1378. Lyons v. Tedder (7 S. C. 69), 1409. Lysaght v. Callinan (Hayes, 141), 1387. Lysle V. Williams (15 S. & R. Pa. 136), 346. Lyster v. Goldwin (1 G. & D. 463), 175. M. Mabry v. Harp (53 Kan. 398), 1329.1432. Macbean v. Irvine (4 Bibb. Ky. 17), 64. Macdonough v. Starbird (105 Cal. 15), 1251. Machen v. Hooper (73 Md. 342), 783,899. Macher v. Foundling Hospital (1 Ves. & B. 187), 733. Machinery Co. v. Flower (12 De- troit Leg. N. 214, 103 N. W. Rep. 873), 1055. Mack V. Burt (5 Hun, N. Y. 28). 527. Mack V. Dailey (67 Vt. 90), 645, 647, 978. Mack V. Patchin (42 N. Y. 167), 702,1184. Mackay v. Mackreth (4 Dougl. 213), 42, 137. Mackin v. Havin (187 111. 484), 484, 923, 969. Mackubin v. Whitecroft (4 Har. & McH. Md. 135), 629. Maclary v. Turner (9 Houst. Del. 281), 1309. TABLE OF CASES CITED. cxlix [rkfeuences ark to pages.] Macon v. Dasher (16 S. E. Rep. 75), 71. Mactier v. Osborn (146 Mass. 399), 634, 666, 667. Macy V. Elevated R. R. Co. (59 Hun, 365), 680. Madden v. McKensie (144 Fed. Rep. 64), 463. Maddox v. Gray (75 Ga. 452), 349. Maddox v. White (4 Md. 72), 721, 757. Madigan v. McCarthy (108 Mass. 376), 1244. Madison Female Sem. v. United States (23 Ct. CI. 188), 37. Maelzer v. Swan (75 Kan. 496), 1431. Magam v. Lambert (3 Pa. St. 444), 1183, 1340. Maggort V. Hansbarger (8 Leigh, Va. 532), 895. Magill V. Hinsdale (6 Conn. 464), 106. Magoon v. Minnesota Transfer Pg. Co. (34 Minn. 434), 326. Magruder v. Peter (4 Gill & J. Md. 323), 13. Mahler, In re (105 Fed. Rep. 428), 1175. Mahon v. Columbus (58 Miss. 310), 71. Mahoney v. Alirso (51 Cal. 440), 491. Main v. Davis (32 Barb. N. Y. 461), 543. Main v. Feathers (21 Barb. N. Y. 646), 518. Main v. Green (32 Barb. N. Y. 253), 1060. Main v. Schwartzwaelder (4 E. D. Smith, N. Y. 273), 1257. Maitland v. McKinnon (1 H. & C. 607), 444. Majestic Hotel Co. v. Eyre (53 App. Div. 273), 1143, 1359. Majors v. Goodrich (54 S. W. Rep. 919), 252. Makin v. Watkinson (40 L. J. Ex. 33), 860. Makin v. "Wilkinson (23 L. T. Rep. N. S. 473), 860. Mallam v. Arden (10 Bing. 299), 522. Mallan v. May (13 Mee. & Wei. 511), 604. Mallett V. Hillyard (43 S. E. Rep. 779), 1185. Mallett V. Page (8 Ind. 364), 349. Malloy V. Real Estate Ass'n (34 N. Y. Supp. 679), 817. Mammock v. Creekmore (48 Ark. 264), 311. Man V. Katz (40 Misc. Rep. 645), ■ 1063. Manby v. Scott (1 Mod. 124), 21. Manchester v. Doddridge (3 Ind. 360), 198', 206. Manchester, etc. Ry. Co. v. Ander- son (67 L. J. Ch. 568), 699. Manchester Bonded Whse. v. Carr (49 L. J. C. P. 809), 860. Mancuso v. Kansas City (74 Mo. App. 138), 828. Manett v. Simpson (61 Hun, 620), 109. Maney v. Lamphere (11 Detroit Leg. N. 872), 690. Man. Stamping Works v. Koehler (45 Hun, 150). 295. Manle v. Ashmead (20 Pa. St. 483), 701. Mann v. Antenrieth (17 Hun, N. Y. 162), 1358. Mann v. Lovejoy (R. & M. 355), 134. Mann v. Nunn (43 L. J. C. P. 241), 381,856. Mann v. Tonner (86 Iowa, 581), 1100. Mann v. Watters (10 B. & C. 626), 175. Manning v. West (6 Cush. Mass. 463), 265. 2), 257. Pearce v. Golden (8 Barb. N. Y. 522), 1276. Pearce v. Nix (34 Ala. 183), 924. Pearce v. Pearce (184 111. 289), 315. Pearce v. Shard (6 L. J. O. S. K. B. 354), 1097. Pearce v. Turner (150 111. 116), 1374. Pearcy v. Henley (82 Ind. 129), 24. Pearse v. Boultor (2 F. & P. 133), 175. Pearson v. Davis (41 Neb. 608), 333. Pearson v. Friedensville Zinc Co. (1 Pa. Ct. Ct. Rep. 660), 1331. Pearson v, Sanderson (128 111. 88), 1272. Pease v. Christ (31 N. Y. 141), 1089. Pease v. Coats (12 Jur. N. S. 684), 749. Peck V. Christman (94 111. App. 435), 1020. Peck V. Hiller (31 Barb. N. Y. 117), 1132, 1138. Peck V. Ingersoll (7 N. Y. 528), 544,1205. Peck V. Knickerbocker Ice Co. (18 Hun, 183), 34, 1222. Peck V. Ledwidge (25 111. 109), 1340. Peck V. Lloyd (38 Conn. 566), 445. Peck V. Northrop (17 Conn. 217), 491, 499, 1112. Peck V. Scoville (43 111. App. 360), 903. Peck V. Ward (18 Pa. St. 5061,24. Pedderick v. Searle (5 S. & R. Pa. 236), 951. Peddicord v. Berk (74 Kan. 236), 95. Peehl V. Bumtialek (99 Wis. 62), 158, 162, 172. Peer v. O'Leary (28 N. Y. S. 687), 216,219. Peer v. Wadsworth (67 N. J. Eq. 191),712, 756, 1098. TABLE OF CASES CITED. clxxv [befekences Peers v. Sneyd (17 Beav. 151), 97. Pegg V. Wisden (16 Beav. 243), 978. Peil V. Reinhart (127 N. Y. 381), 814, 817. Pelan v. De Bevard (13 Iowa, 53), 1283. Pelican Co., In re (47 La. Ann. 935), 341. Pellew V. Wonford (9 Barn. & Cress. 134), 348. Pelton V. Draper (61 Vt. 364), 313. Pelton V. Place (71 Vt. 430), 1213. Pemberton v. King (2 Dev. N. C. 376), 1250. Pence v. St. Paul, M. & M. R. Co. (28 Minn. 488), 1050. Pence v. Williams (14 Ind. App. 86), 922. Pendill v. Fells "(67 Mich. 657), 496. 1113, 1141. Pendill v. Maas (97 Mich. 215), 454,1408. Pendill v. Neuberger (67 Mich. 562), 345. Pendill v. Union Mining Co. (64 Mich. 172), 554, 634. Penfold V. Abbott (32 L. J. Q. B. 67), 6, 1171. Pengra v. Munz (29 Fed. Rep. 830), 921. Penn v. Brashear (65 Mo. App. 24), 361. Penn v. Kearney (21 La. Ann. 23), 1346, 134^7. Penn v. Preston (2 Rawle, Pa. 14), 602. Pennant's Case (3 Coke, 64), 639. Pennewell, In re (119 Fed. Rep. 139), 623, 1055. Penniall v. Harborne (11 Q. B. 368), 1038. Pennington v. Baehr (48 Cal. 565), 826. Pennington v. Taniere (12 Q. B. 998), 8, 147. AKE TO PAGES.] I Pennoch v. Coe 123 How. U. S. 117), 1428. I Pennock v. Lyons (118 Mass. 92), 645, 1059. Pennoyer v. Neff (95 U. S. 714), 1401. Pennsylvania Iron Co. v. Deller (113 Pa. St. 635), 294. Pennsylvania R. R. Co. v. St. Louis, A. & T. H. R. R. Co. (118 U. S. 290), 71. Penruddock v. Newman (1 Leon, 279), 1197. Penton v. Barnett (67 L. J. Q. B. 11), 662. Penton v. Hobart (2 East, 88), 1260, 1265, 1269. Pentz V. Keuster (41 Mo. 447), 934. People V. Annis (45 Barb. N. Y. 304), 303, 307. People V. Ainslie (76 N. Y. 574), 927. People V. Darling (47 N. Y. 666), 159. People V. Erwin (4 Denio, N. Y. 126), 778. People V. Freeman (110 App. Div. 605), 658. People V. Gillis (24 Wend. N. Y. 201), 246. People V. Haskins (7 Wend. N. Y. 43), 507. People V. Kelsey (38 Barb. N. Y. 269), 245. People V. Kerrains (60 N. Y. 221), 305. People V. C. & N. W. R. Co. (57 111. 436), 449. People V. National Tr. Co. (82 N. Y. 283), 70. People V. O'Melia (67 Hun, 653), 778. People V. Robertson (Barb. N. Y. 9), 356. People V. St. Nicholas Bank (3 App. Div. 544), 244, 246. clxxvi TABLE OF CASES CITED. [references are to pages.] People's St. Ry. Co. v. Spencer (156 Pa. St. 85), 1000. People's Loan & Building Ass'n v. Whitmore (75 Me. 117), 927. Pepper v. Rowley (73 111. 262), 563,1183. Pepper's Adm'r v. Harper (20 Ky. Law Rep. 837), 329. Peralta v. Ginochio (47 Cal. 459), 923. Pere Marquette R. Co. v. Wabash R. Co. (104 N. W. Rep. 650), 454. Perez v. Rabaud (76 Tex. 191), 848. Perkerson v. Snodgrass (85 Ala. 137), 491. Perkins v. Carr (44 N. H. 118), 1331. Perkins v. Giles (50 N. Y. 228), 571. Perkins v. Governor (Minor, Ala. 352), 938. Perkins v. Hadsell (50 111. 216), 981. Perkins v. Perkins (5 Atl. Rep. 373), 189. 190. Perkins v. Perkins (Cro. Eliz. 269), 1194. Perkins v. Potts (52 Neb. 110), 484, 922, 964. Perkins v. Swank (43 Miss. 349), 1250, 1260. Perkins v. Washington Ins. Co. (4 Cow. N. Y. 645), 1042. Perniciaro v. Veniero (90 N. Y. Supp. 369), 1180. Perrett v. Dupre (3 Rob. La. 52), 875. Perrin v. Repper (34 Mich. 292), 1112. Perrin & Smith Printing Co. v. Cook, etc. Co. (93 S. W. Rep. 337), 1123. Perring v. Brooke (1 Mood. & Ry. 510), 251. Perrott v. Shearer (17 Mich. 48), 771. Perry v. Bailey (94 Me. 50), 679, 680. Perry v. Davis (3 C. B. N. S. 769), 658. Perry v. Hamilton (138 Ind. 271), 1317. Perry v. Perry (127 N. C. 23), 1435. Perry v. Rockland & R. Lime Co. (94 Me. 325), 1377, 138L Perry v. Waggoner (68 Iowa, 403), 1421,1434. Perry v. Wall (68 Ga. 70), 1130. Pesant v. Heartt (23 La. Ann. 292), 852. Peter v. Kendall (6 B. & C. 703), 110,1208. Peters v. Barnes (16 Ind. 210), 1193. Peters v. Blake (170 111. 304), 216. Peters v. Elkins (14 Ohio, 344), 31,288. Peters v. Grubb (21 Pa. St. 455), 438, 442. Peters v. Newkirk (6 Cow. N. Y. 103), 1199. Peters -v. Stone (193 Mass. 179), 1282.1283. Peterson v. Edmonson (5 Har. Del. 378), 1155, 1340. Peterson v. Kinkead (92 Cal. 372), 938. Peterson v. Smart (70 Mo. 38), 913. Peticolas v. Thomas (9 Tex. Civ. App. 442), 856. Petre v. Ferrers (61 Law J. Ch. 426), 1299. Petrie v. Wright (14 Miss. 647), 65. Petsch V. Biggs (31 Minn. 392), 172. Pettee v. Hawes (13 Pick. Mass. 323), 438. TABLE OF CASES CITED. clxxvii [REI EKKXCES ARE TO PAGES.] Pettengill v. Evans (5 N. H. 54), 212,222. Petterson v. Sweet (13 111. App. 255), 924. Pettibone v. Moore (73 Hun, 461), 253. Pettibone v. Smith (150 Pa. St. US), 1023. Pettigrew v. Mills (36 Kan. 745, 147), 920. Petty V. Kennon (49 Ga. 468), 195. Petty V. Maier (10 B. Mon. Ky. 591), 234. Pettygrove v. Rothschild (2 Wash. St. 6), 647. Petz V. Voight Brewing Co. (116 Mich. 418), 873. Pevey v. Skinner (116 Mass. 129), 413. Pewaukee Milling Co. v. Howitt (86 Wis. 270), 295, 1302. Peyton v. Stith (5 Pet. U. S. 484), 953,958.970. Pfanner v. Sturmer (40 How. Pr. N. Y. 401), 191, 1306. Phalen v. Dinger (4 E. D. Smith, N. Y. 379), 592. Pharis v. Jones (122 Mo. 125), 958. Phelan v. Boylan (25 Wis. 679), 712. Phelan v. Fitzpatrick (74 N. E. Rep. 326), 835, 847. Phelan v. Tedcastle (15 L. R. Ir. 169), 259, 387. Phelps V. City of New York (61 Hun, 521), 1369. Phelps V. Randolph (147 111. 335), 690. Phelps V. Taylor (23 La. Ann. 585), 958. Phene v. Popplewell (12 C. B. N. S. 334), 1207. Philadelphia v. Reeves (48 Pa. St. 472). 609. Philadelphia, etc. Co. v. Baltimore City (50 Md. 397), 1019. Phillbrook v. Emswiler (92 Ind. 590), 458. Phillips V. Aurora Lodge, I. O. G. T. (87 Ind. 505), 62. Philips V. Butler (2 Esp. 589), 172. Phillips T. Burrows (2 Mo. App. Rep. 1001), 1096, 1423. Phillips V. Castley (40 Ala. 486), 462. Phillips V. Covert (7 Johns. N. Y. 1),222. Phillips V. Eastern Railway (138 Mass. 122), 61. Phillips V. Everard (5 Sim. 102), 1395. Phillips V. Fearnside (4 Hayw. Tenn. 158), 196. Phillips & Butorff Mfg. Co. v. Whit- ney (109 Ala. 645), 66. Phillips V. Library Co. (55 N. J. Law, 307), 836, 816. Phillips V. Maxwell (1 Baxt. Tenn. 25), 1430. Phillips V. Monges (4 Whart. Pa. 226), 140, 564, 855. Phillips V. Mosely (1 Car. & P. 262), 511. Phillips V. Rathwell (4 Bibb. Ky. 33), 945. Phillips V. Robertson (65 Hayw. Tenn. 101), 922. Phillips V. Smith (14 M. & W. 590), 710. Phillips V. Stevens (16 Mass. 238), 882, 892, 1346, 1351. Phillips V. Tucker (3 Ind. 132), 621, 638, 665, 1322. Phillips V. Vandergrift (146 Pa. St. 347), 641. Philpot V. Hoare (2 Atk. 219), 1067. Phinney v. Foster (189 Mass. 182), 1008. Phipps V. Ingraham (41 Miss. 256), 384. clxxviii TABLE OP CASES CITED. [references are to pages.] Phipps V. ScultKorpe (1 B. & Aid. 50), 188, 576, 578. Phoenixville v. Walters (147 Pa. St. 501), 172. Phyfe V. Warden (5 Paige, N. Y. 279), 1104. Pickens v. Bozell (11 Ind. 275), 5G3. Pickens v. Reed (1 Swan. Tenn. 86), 1316. Pickens v. Webster (31 La. Ann. 870), 1318. Pickerel v. Carson (8 Iowa, 544), 1243. Pickering v. Moore (67 N. H. 532), 1333. Pickering v. O'Brien (23 Pa. Supr. Rep. 125), 213. Pickering v. Pickering (11 N. H. 141), 90. Pickett V. Ferguson (45 Ark. 177), 697,1139. Pickle V. Byers (16 Ind. 383), 798. Pidgeon v. Richards (4 Ind. 374), 191. . Pier V. Carr (6'9 Pa. St. 326), 1207, 1208. Pierce v. Brown (24 Vt. 165), 1228. Pierce v. Cleland (133 Pa. St. 189), 424. Pierce v. Hedden (105 La. 294), 789. Pierce v. Joklersma (91 Mich. 463), 876, 1151. Pierce v. Minturn (1 Cal. 470), 337. Pierce v. Richardson (37 N. H. 306), 342. Pierce v. Rollins (60 Mo. A pp. 497), 484. Pierce v. Scott T4 W. & S. Pa. 344), 1443. Pierce v. Sellick (18 C. B. 321). 446. Pierce v. Shaw (2 M. & R. 418), 140. Pierce Cequin Co. v. Meadows (86 S. W. Rep. 1127), 1044. Pierson v. Hughes (102 N. Y. Supp. 528), 536. Pierson v. Hughes (78 N. Y. Supp. 223), 1378. Plgot V. Garnish (Cro. Eliz. 678), 10. Piggot V. Mason (1 Paige, N. Y. 412), 570, 616, 1363. Piggott V. Stratton (1 De G., F. & .L 33), 1098. Pike V. Brown (7 Cush. Mass. 133), 519. Pike V. Eyre (9 B. & Cr. 909), 128, 953. Pike V. Leiter (26 111. App. 530), 349. Pilgrim v. Beck (69 Fed. Rep. 895), 40. Pilkington v. Peach (2 Show. 135), 41. Pilkington v. Shaller (2 Vern. 374), 1106. Pilling V. Armitage (12 Ves. 85), 874.. Pillow V. Love (6 Tenn. 109), 1254. Pinero v. Judson (3 M. & P. 497), 257,576. Pingry v. Watkins (17 Vt. 379), 1087. Pingrey v. Watkins (15 Vt. 479), 543. Pinhorn v. Souster (S Exch. 763), 223. Pinner v. Arnold (2 C. M. & R. 613), 380. Pintard v. Irwin (20 N. J. Law. 497), 1272, 1280. Pinto V. Rintleman (02 S. W. Rep. 1033), 378. Pioneer Savings & Loan Co. v. Fuller (57 Minn. 60). 1296. TABLE OF CASES CITED. clxxix [references are to pages.] Piper V. Cashnell (122 Fed. Rep. 614), 939, 942. Piper V. Fletcher (115 Iowa, 263), 784,1152. Piper V. Levy (114 La. 544), 1371. Pistor V. Cator (9 M. & W. 315), 888. Pitcher v. Daniel (12 Rich. S. C. Eq. 349), 60. Pitcher v. Donovan (2 Campb. 78), 158, 172. Pitcher v. Tovey (4 Mod. 71), 520. Pitman v. Woodbury (3 Exch. 11), 330. Pitney v. Eldridge (58 Kan. 215), 122. Pitt v. Hogg (4 Dowl. & R. 226), 1051. Pitt V. Snowden (3 Atk. 750), 1124. Pittsburg Amusement Co. v. Fer- guson (100 App. Div. 453), 358. Pittsburg Mfg. Co. v. Fidelity T. & Tr. Co. (207 Pa. St. 223), 95, 1398. Pittsburgh, etc. Co. v. Thorn- burgh (98 Ind. 201), 243. Planters' Compress Co. v. Howard (80 S. W. Rep. 119), 1452. Planters' Ins. Co. v. Diggs (8 Baxt. Tenn. 563), 663, 1032. Piatt V. Johnson (168 Pa. St. 47), 525, 1240, 1444. Playter v. Cunningham (21 Cal. 229), 700. Pleadall's Case (2 Leon. 259), 89. Ploen V. Staff (9 Mo. App. 309), 861. Plumer v. Harper (3 N. H. 88), 679,794. Plumer v. Plumer (30 N. H. 558), 920. Pocher v. Hall (^8 N. Y. Supp. 754), 289, 290. Poer V. Peebles (1 B. Mon. Ky. 1), 1464. Poertner v. Russell (33 Wis. 193), 724. Polack v. Pioche (35 Cal. 416), 882, 900. Polland V. Fertilizer Co. (122 Ala. 409), 32. Pollard V. Schaefer (1 Dall. Pa. 210), 615, 1080, 1340, 1352. Pollen V. Brewer (7 Com. Bench, N. S. 371), 192, 215. Polley V. Johnson (52 Kan. 478), 1329. Pollman v. Morgester (99 Pa. St. 611), 911. Pollock V. Cronise (12 How. Prac. N. Y. 363), 492. Pollock V. Farmers' L. & T. Co. (157 U. S. 429), 504. Pollock V. Kitrell (4 N. C. 585), 197. Pollock V. Stacy (9 Q. B. 103), 574. Pomeroy v. Taylor (9 N. Y. St. Rep. 514), 1149. Pomfret v. Ricroft (1 Saund. 323a), 222. Pond & Hasey Co. v. O'Connor (70 Minn. 266), 1244, 1257. Ponder v. Cheaves (104 Ala. 306), 965. Ponder v. Rhea (32 Ark. 435), 309. Pontalba v. Domington (11 La. 192), 862, 1178. Pool V. Hennessey (39 Iowa, 192), 568. Poole V. Bentley (12 East, 168), 63, 256. Poole v. Engelecke (61 N. J. L. 124), 235, 237. Poole's Case (1 Salk. 369), 1256. Poor V. Sears T154 Mass. 539), 813. Pope v. Harkins (16 Ala. 321), 491. Pope V. WTiitehead (68 N. C. 101), 81. elxxx TABLE OP CASES CITED, [references ABE TO PAGES.T Poposkey v. Munkwitz (68 Wis. 322), 672, 695. Porch V. Fries (18 N. J. Eq. 204), 19, 118. Porche v. Bodin (28 La. Ann. 761), 1315, 1318. Pordage v. Cole (1 Saund. 320), 600. Porter v. Bleiler (17 Barb. N. Y. 149), 87, 90. Porter v. Groden (5 Yerg. Tenn. 100), 384. Porter v. Johnson (96 Ga. 145), 1185,1187. Porter v. Mayfield (21 Pa. St. 264), 922, 964. Porter v. Merrill (124 Mass. 534), 283, 644, 1057. Porter v. Sheppard (6 T. R. 665), 601, 625. Porter v. Sweeney (61 Tex. 213), 10. Portman v. Home Hospitals Ass'n (27 Ch. D. 81, n), 739. Post V. Kearney (2 N. Y. 394), 1016, 1021, 1048. Post V. Post (14 Barb. N. Y. 253), 191, 218. Post V. Vetter (2 E. D. Smith, N. Y. 248), 782. Post V. West Shore R. R. Co. (123 N. Y. 580), 729. Postal Telegraph Cable Co. v. Western Union Telegraph Co. (155 ni. 335), 612. Poston V. Jones (2 Ired. Eq. N. C. 350), 1138, 1183. Poston V. Jones (37 N. C. 350), 1178. Pott V. Lesher (1 Yeates, Pa. 57C), 573. Potter V. Bassetl (35 Mo. Ai)p. 417), 106. Potter V. Cunningham (44 Me. 192), 1328. Potter V. Gilbert (177 Pa. St. 159), 1265. Potter V. Greenleaf (21 R. I. 483), 1455, 1460. Potter V. Gronbeck (117 111. 404), 1116. Potter V. Mercer (53 Cal. 667), 250, 256, 261. Potter V. New York Infant Asy- lum (44 Hun, N. Y. 367), 65. Potter V. Truitt (3 Har. Del. 331), 582. Potts V. Hendrix (6 Ga. 452), 1315. rough V. Cerimedo (88 N. Y. Supp. 1054), 674. Poulter V. Killingbrick (1 Bos. & P. 397), 380. Powell V. Beckley (38 Neb. 157), 874. Powell V. Bergner (47 111. App. 33), 1250. Powell V. Dailey (163 111. 646), 1400, 1428. Powell V. Dayton (16 Oreg. 33), 721. Powell V. D. S. & G. R. R. Co. (12 Oreg. 488), 600, 710. Powell V. Gossom (18 B. Mon. Ky. 179), 100. Powell V. Hadden's Ex'rs (21 Ala. 745), 319, 1402. Powell V. Lynde Co. (64 N. Y. Supp. 153), 362, 471, 478, 1075. Powell V. Rich (41 111. 466), 1315, 1327. Powell V. Simms (5 W. Va. 1), 409. Powell V. Smith (11 L. J. Ch. 734), 374. Powell V. State (84 Ala. 444), 1416. Powers V. Cope T93 Ga. 248), S33, 849. Powers V. Schoeltens (79 Mich. 290), 975. Powis V. Smith (1 D. & R. 490), 87. Prahar v. Tousey (93 App. Div. 507), 476, 785. T^VBLE OF CASES CITED. :li.xxi [Ri:ir:uENCES are to pai-es;.] Pratt V. Brett (2 Madd. 62), 725. Pratt V. Farrar (10 Allen, Mass. 519), 210, 213. Pratt V. Foote (9 N. Y. 463), 547. Pratt V. Grafton Electric Co. (182 Mass. 180)^ 847. Pratt V. Keith (33 L. J. Ch. 592), 529. Pratt V. Levan (1 Miles, Pa. 358), 1060. Pratt V. Lewis (39 Mich. 7), 405. Pratt V. Taller (186 N. Y. 417), 808, 861. Pray v. Stebbins (141 Mass. 219). 213,214. Preble v. Hay (32 Me. 456), 156 Preece v. Corrie (2 M. & P. 57), 1048. Prendergast v. Y'oung (21 N. H. 274), 672. Prentiss v. Kingsley (70 Pa. St. 120), 1120. Prentiss v. Warne (10 Mo. 601), 1207, 1222. Presby v. Benjamin (169 N. Y. 377), 737, 1066. Presbyterian Church v. Pichet (Wright, Ohio, 57), 454. Prescott V. Otterstatter (79 Pa. St. 462), 564, 876, 1302. Prescott V. White (21 Pick. Mass. 341), 437, 438. Preston v. Hawley (130 N. Y. 296), 573. Preston v. Neale (12 Gray, Mass. 222), 1299. Pretley v. Bickmore (L. R. & C. B. 401, 402), 792. Pretty v. Bickmore (L. R. 8 C. P. 401), 826. Prettyman v. Unland (77 111. 206), 1420,1429. Prettyman v. Walston (34 111. 175), 1073. Prevost V. Lawrence (51 N. Y. 219), 24. Price V. Assheton (1 Y. & Coll. 441), 1370, 1384. Price V. Dyer (17 Ves. 363), 374. Price V. Haynes (37 Mich. 487), 333. Price V. Pickett (21 Ala. 741), 1306, 1310, 1315. Price V. Sanders (60 Ind. 310), IS. Price V. Warwood (4 H. & N. 512), 648. Price V. Williams (1 Mee. & Wei. 6), 249. Prichard v. Tabor (104 Ga. 64), 322. Prickett v. Reed (31 Ark. 131), 1429. Prickett v. Ritter (16 111. 96), 159. Pridgeon v. Excelsior Boat Club (66 Mich. 326), 431, 1142, 1145, 1182. Priest V. Wheelock (29 Ind. 497), 28. Prince v. Flynn (2 Litt. Ky. 40), 690. Prindle v. Anderson (19 Wend. N. Y. 391), 159, 179. Prior V. Kizo (81 Mo. 241), 467, 691, 1191, 1195. Pritchard v. Dodd (5 B. & Ad. 689), 245. Probst V. Roch St. Laundry Co. (171 N. Y. 584), 1379. Proctor V. Benson (149 Pa. St. 254), 249. Proctor V. Keith (12 B. Mon. Ky. 252), 641, 856, 1340. Proctor V. Pool (4 Dev. N. C. 370), 336. Proffltt V. Henderson (29 Mo. 325), 707. Promer v. Railroad Co. (90 Wis. 220), 803. Propert v. Parker (3 Mylne & K. 280), 388, 607. Proprietors of Township No. 6 v. McFarland (12 Mass. 325), 198. clxxxii TABLE OF CASES CITED. [references are to pages.] Proprietors, etc. v. Wood (3 Esp. 127), 900. Proskey v. Cumberland Realty Co. (70 N. Y. Supp. 1125), 1189. Prospect V. Parker (3 Mylne & K. 280), 364. Proudfoot V. Hart (59 L. J. Q. B. D. 43), 886. Prout V. Roby (15 Wall. U. S. 476), 989. Prouty V. Prouty (5 How. Pr. N. Y. 81), 172. Providence v. St. John's Lodge (2 R. I. 40), 1293. Providence Christian Union v. Eliot (13 R. I. 74), 519. Provost V. Lawrence (51 N. Y. 219), 920. Prufrock v. Joseph (27 S. W. Rep. 264), 123. Pryer v. Coulter (1 Bailey Law, S. C. 517), 106. Pryor v. Foster (130 N. Y. 171), 4S1, 1144. Fugh V. Duke (Cowper, 714), 347. Pugh Printing Co. v. Dexter (8 Ohio Dec. 557), 267. Pugsley V. Aikin (11 N. Y. 494), 130. Pulford V. Whicher (76 Wis. 555), 958. Pulliam V. Sells (99 S. W. Rep. 289), 161. Pulteney v. Shelton (5 Ves. 147), 765. Purcell V. English (86 Ind. 34), 782, 814, 816. 822, 849. Purdy'B Appeal (23 Pa. St. 97), 552, 1441, 1443. Pursel V. Teller "(10 Colo. App. 488), 471, 478. Purssell V. Mayor of the City of New York (85 N. Y. 330), 1018. Purton V. Watson (2 N. Y. Supp. 661), 727. Putnam v. Bond (100 Mass. 58), 337. Putnam v. Lewis (8 Johns. N. Y. 389), 547. Putnam v. Ritchie (6 Paige Ch. N. Y. 390), 15. Putnam v. Stewart (97 N. Y. 411), 457, 1073, 1108. Putnam v. Wise (37 Am. Dec. 309), 31L Pynchon v. Stearns (11 Met. Mass. 304), 708. Q. Quackenboss v. Clarke (12 Wend. N. Y. 555), 1069. Quackenboss v. Lansing (6 Johns. N. Y. 49), 604. Quade v. Fitzloff (93 Minn. 115), 1378. Quarman v. Burnett (1 Q. B. Div. 321), 803. Quay V. Lucas (25 Mo. App. 4), 913. Quay V. Westcott (60 Pa. St. 163), 568. Quetermous v. Hatfield (54 Ark. 16), 320. Quick V. Ludborrow (3 Bulst. 3), 619. Quidort v. Bullitt (60 N. J. Law, 119), 1371. Quiggle V. Vining (125 Ga. 98). 1318. Quigley v. H. W. Johns Mfg. Co. (26 App. Div. 434), 838. Quiniby v. Shearer (56 Minn. 534), 361. Quincey, Ex parte (1 Atk. 477), 1256. Quincy v. Carpenter (135 Mass. 102), 1038. Quincy M. & P. Ry. Co. v. Hum- phreys (145 U. S. 82). 1122. Quincy Parish v. Spear (15 Pick. Mass. 144), 198. Quinlan v. Bonte (24 III. App. 240), 139. TABLE OF CASES CITED. clxxxiii [references are to pages.] Quinn v. Crowe (88 111. App. 191), 847. Quinn v. Perham (151 Mass. 162), 813. Qainnette v. Carpenter (35 Mo. 502), 139, 141, 559, 1222. Quinney v. Denny (18 Wis. 485), 333. R. Race V. Groves (43 N. J. Eq. 280), 991. RacklefE v. Norton (19 Me. 274), 343. Rae V. Lewis (2 W. Bl. 1173), 191. Rafferty v. Schofield (66 L. J. Ch. 448), 628. Ragar v. McKay (44 111. App. 79), 922,947. Ragsdale v. Lander (80 Ky. 61), 384. Ragsdale v. McKinney (119 Ala. 454), 1464. Railroad Co. v. West (57 Ohio St. 161), 140. Railton v. Taylor (20 R. I. 279), 783, 830. Raines v. Keller (4 C. & P. 3), 621. Raines v. Walker (77 Va. 92), 351. Rainey v. Caps (22 Ala. 288), 262, 457. Ralph V. Lomer (3 Wash. St. 401), 538. Ralston v. Boady (20 Ga. 449), 772. Ramsay v. Wilkie (13 N. Y. Supp. 554), 701, 1219. Ramsey v. Henderson (10 West. Rep. 33), 212, 182. Ranalli v. Zeppetelli (94 N. Y. Supp. 561), 458. Rand v. Barrett (66 Iowa, 731), 1432. Rand v. Francis (67 111. App. 225), 1060. Randall v. Alburtis (1 Hilt. N. Y. 285), 1154. Randall v. Ditch (123 Iowa, 58), 309, 1451. Randall v. Rich (11 Mass. 494), 1238. Randall v. Rosenthal (31 S. W. Rep. 822), 1135. Randall v. Sanderson (111 Mass. 114), 410. Randel v. Alburtis (1 Hilt. N. Y. 285), 1132. Randel v. Chesapeake & D. Canal Co. (1 Har. Del. 233), 599. Randolph v. Carlton (8 Ala. 606), 934,936. Randolph v. Feist (23 Misc. Rep. 650), 802. Randol v. Scott (110 Cal. 590), 665,1066. Randol v. Tatum (98 Cal. 390), 644, 1057. Ranelagh v. Melton (2 Drew. & Sm. 278), 992. Ranger v. Bacon (3 Misc. Rep. 95), 1093. Ranken v. Hunt (10 R. 249), 749. Rankin v. Kinsey (7 Brad. 111. 215), 1325. Rankin v. Rankin (216 111. 132), 988. Rankin v. Simpson (19 Pa. St. 471), 950. Ranlet v. Cook (44 N. H. 512), 1387. Rappe V. Front (3 Okl. 260), 920. RatclifE V. Belfont Iron Works (87 Ky. 559), 484. Raubitscheck v. Semken (4 Abb. New Cas. N. Y. 205), 1205. Raventas v. Green (57 Cal. 254), 291. Rawle V. Balfour (16 W. N. C. Pa. 194), 848. Rawlings v. Briggs (2 C. P. Div. 368),102S. clxxxiv TABLE OF CASES CITED. Rawlings v. Walker (5 B. & Cr. Ill), 1233. Rawlin's Case (4 Coke, 53a), 952. Rawls V. Moye (98 Ga. 564), 1411. Rawson v. Babcock (40 Mich. 330), 198. Rawstarne v. Bentley (4 Bro. Ch. 417), 1383. Ray V. Gas Co. (138 Pa. St. 576), 641,643. Raylyn's Case (4 Coke, 53a), 953. Raymond v. Fitch (2 C. M. & R. 588), 51. Raymond v. Krauskopf (87 Iowa, 602), 555. Raymond v. Mercliant (3 Cow. N. Y. 147), 547. Raymond v. Striclvland (124 Ga. 504), 1257. Raymond v. Thomas (24 Ind. 476), 522. Raymond v. White (7 Cow. N. Y. 319), 1250. Rayne v. Irvin (144 III. 482), 804. Rayner v. Drew (72 Cal. 307), 385, 957. Rayner v. Lee (20 Mich. 384), 368. Read v. Bolger (70 N. Y. Supp. 757), 848. Readey v. American Brewing Co. (60 111. App. 501), 1090. Readfield T. & T. Co. v. Cyr (95 Me. 287), 1248. Readman v. Conway (126 Mass. 374), 804, 813. Reasoner v. Edmundson (5 Ind. 393), 1129. Reckhow v. Schank (43 N. Y. 448), 223. Rector v. Harford Deposit Co. (190 111. 380), 10G4, 1092. Rector, etc. Trinity Church v. Hig- gins (48 N. Y. 533), 1013. Redden v. Barker (4 Har. Del. 179), 317. Reddick v. HuLchlnson (94 Ga. 675), 322. [references are to pages.] Redding v. Hall (1 Bibb. Ky. 536), Rede v. Farr (6 Maule & S. 121), 642, 645, 1068. Redpath v. Roberts (3 Esp. 225), 1216. Reed v. Bartlett (9 111. App. 267), 288. Reed v. Campbell (43 N. J. Eq. 406), 1367, 1368. Reed v. Deere (7 B. & C. 266), 582. Reed v. Harrison (196 Pa. St. 337), 896, 899. Reed v. Lewis (74 Ind. 433), 336, 733, 757. Reed v. Munn (148 Fed. Rep. 737), 954, 1228. Reed v. Reed (48 Me. 388), 206, 228, 234. Reed v. Reynolds (37 Conn. 469), 692, 1190. Reed v. Shepley (6 Vt. 602), 964 Reed v. Swan (133 Mo. 100), 1325. Reed v. Todd (1 Har. Del. 138), 920. Reed v. Van Nostrand (1 Wend. N. Y. 424), 547. Reed v. Ward (22 Pa. St. 144), 541, 552. Reeder v. Anderson (4 Dana, Ky. 193), 1299. Reeder v. Say re (70 N. Y. 180), 133, 146, 197. Reeder v. Sayre (80 N. Y. 190), 147. Reedy v. Smith (42 Cal. 245), 327. Rees V. Perrot (4 Car. & Payne, 230), 43. Reese v. Caffee (133 Ind. 14), 920. Reese v. Cochran (10 Ind. 195), 24. Reese v. Rugely (82 Ala. 267). 1417. Rpovo V. Berridge (20 Q. B. 523), 1075. TABLE OP CASES CITED. cixiLKV [references Reeve v. Bird (1 C. M. & R. 37), 1199. Reeves v. Cattell (24 W. R. 485), 737. Reeves v. Hyde (14 111. App. 233), 855. Reeves v. McComeskey (168 Pa. St. 571), 785. Reffel V. Reffel (1 L. R. P. & D. 139), 343. Regan v. Walsh (11 Ohio Dec. 61), 1214. Regan v. Luthy (16 Daly, N. Y. 413), 721. Regina v. Ponsonby (3 Ad. & El. N. S. 14), 301. Regina v. St. Giles (4 B. & S. 509), 131. Regina v. St. Nicholas (5 Barn. & Adol. 227), 566. Regina v. Slawstone (18 Q. B. 388), 174. Rehler v. Railway Co. (8 N. Y. Supp. 286), 870. Reich v. McCrea (59 Hun, 625), 1215. Reichstetter v. Reese (39 S. W. Rep. 597), 958. Reid V. Hibbard (6 Wis. 175), 101. Reid V. Parsons (2 Chit. 247), 644. Reid V. Town of Long Lake (89 N. Y. Supp. 983), 394. Reid V. Weissner (88 Md. 234), 644. Reinhardt v. Blanchard (78 111. App. 96), 1432. Reinhart v. Miller (22 Ga. 402), 333. Reitanbaugh v. Ludwick (31 Pa. St. 131), 30. Reithman v. Brandenburg (7 Colo. 480), 155. Relph V. Gist (4 McCord. S. C. 267) 332. Remnant v. Brembridge (2 Moore, 94), 45. ARE TO PAGES.] Remsen v. Conklin (18 Johns. N. Y. 447), 528, 554, 638. Renard v. Sampson (12 N. Y. 561), 459. Rendall v. Andreae (61 Law J. Q. B. 630), 45. Renney v. Sweeney (14 R. I. 581), 233. Rennie v. Robinson (7 Moore, 539), 575. Reno V. Mendenhall (58 111. App. 87), 563, 565, 868, 877, 881. Renoud v. Daskam (34 Conn. 512), 1368, 1378. Renton v. Baraett (77 L. T. Rep. 645), 628. Repplier v. Buck (5 B. Mon. Ky. 96), 1434. Requa v. Domestic Pub. (32 N. Y. Supp. 125), 1236. Respell V. Carwin (72 111. App. 623), 481. Retchie v. Atkinson (10 East, 295), 601. Reusens v. Lawson (91 Va. 226), 972. Reuss V. Picksley (L. T. I. Exch. 342), 386. Rex V. Bardwell (6 Ad. & El. 278), 301. Rex V. Chestnut (1 Barn. & Aid. 473), 300. Rex V. Chipping Norton (5 East, 239), 64. Rex V. Collett (R. & R. 498), 186, 190. Rex V. Eatington (4 T. R. 181), 566. Rex V. Fillongley (1 Term. Rep. 458), 187, 190. Rex V. Flintshire (3 Dowl. & L. 537), 343. Rex V. Inhabitants (5 Mod. 331), 10. Rex V. .Jobling (R. & R. 525), 186, 190. clxxxvi TABLE OP CASES CITED. [references ake to pages.] Rex V. Manners (3 Ad. & El. 597), 11. Rex V. Northwin^eld (1 B. «S; Ad. 912), 461. Rex V. Oakley (10 East, 494), 11, Rex V. Rawdon (3 M. & Ry. 426), 581. Rex V. Sutton (3 Ad. & El. 597), 12. Rex V. Tynemouth (12 East, 46), 301. Reynolds v. Black (91 Iowa, 1), 1439. Reynolds v. Davidson (31 Md. 662), 102. Reynolds v. Ellis (103 N. Y. 115), 279, 1404, 1405. Reynolds v. Fuller (64 111. App. 134), 1060. Reynolds v. Greenbaum (80 111. 416), 349. Reynolds v. Hindman (88 Ga. 314), 1415. Reynolds v. Lawton (55 Hun, 603), 1069. Reynolds v. Pitt (19 Ves. 134), 667, 1038. Reynolds v. Rej^nolds (48 Hun, N. Y. 142), 310, 314. Reynolds v. Shuler (5 Cow. N. Y. 323), 1254. Reynolds v. Swain (13 La. 193), 1222. Reynolds v. Van Buren (155 N. Y. 120), 290, 837. Reynolds v. Welsh (8 N. Y. St. Rep. 404), 327. Reynolds v. Williams (1 Tex. 311), 685. Reysen v. Roate (92 Wis. 543), 435. Rhoades v. Seidel (12 Det. Leg. N. Rep. 1), 797, 855. Rhode V. Loiithain (8 Black. Ind. 413), 97, 99. Rhodes v. Com. (7 Ky. Law Rep. 520), 778. ' Rhodes v. Robinson (3 Bing. N. C. 677), 175. Rhodius V. Johnson (24 Ind. App. 401), 819. Rhone v. Gale (12 Minn. 54), 349, 1036, Rhyme v. Guevara (67 Miss. 139), 934, 936. Ricardi v, Gaboury (115 Tenn. 484), 14. Rice V. Brown (81 Me. 56), 329, 330. Rice V. Dudley (55 Ala. 68), 1131, 1175, 1213. Rice V. Pacific Realty Co. (35 Wash. 535), 1137, Rice V. Whitmore (74 Cal. 619), 111, 672, Rich V. Basterfield (4 C. B. 783), 793, 825. Rich V. Bolton r46 Vt. 84), 187, 216. Rich V. Doyenn (85 Hun, N, Y. 510), 1207, 1214. Richards v. Bluck (6 C. B. 437), 1335. Richardson v. Bates (8 Ohio St. 257), 334. Richardson v. Bigelow (15 Gray, Mass. 154), 437. Richardson v. Callahan (73 Miss. 4), 1184. Richardson v, Coddington (49 Mich. 1), 552. Richards v, Gauffret (145 Mass. 486), 435, 685. Richardson v. Gifford (3 N. & M. 325), 385. Richardson v. Gifford (1 Ad. & El, 52), 139, 147, 196, 889. Richardson v, Gordon (188 Mass. 279), 1013, 1216. Richard.son v. Hall (1 B. & B. 50), 570, 582. Richardson v, Harvey (37 Ga. 224), 923. TABLE OF CASES CITED. clxxxvii [refebexces aee to pages.] Richards v. Knight (78 Iowa, G9), 1325. Richardson v. Langridge (4 Taunt. 128), 133, 134, 190, 191. Richardson v. McLaurin (69 Miss. 70), 1429. Richardson v. Peterson (58 Iowa, 724), 1425. Richardson v. Pond (81 Mass. 387, 389), 409. Richardson v. Richardson (49 Mo. 29), 13. Richardson v. Richardson (9 Gray, Mass. 213), 732. Richardson v. Thornton (52 N. C. 458), 198. Richie v. McCauley (4 Pa. St. 471), 1444. Richmond Ice Co. v. Crystal Ice Co. (99 Va. 239), 1340. Rickards v. Dana (75 Vt. 74), 335, 1044. Rickert v. Snyder (9 Wend. N. Y. 415), 497. Ricketson v. Galligan (89 "Wis. 394), 921. Ricketts v. Garrett (11 Ala. 806), 1171. Ricketts v. Weaver (12 M. & W. 718), 51. Riddle v. Brown (20 Ala. 412), 274. Riddle v. Littlefield (53 N. H. 503), 412, 442. Rider v. Bagley (84 N. Y. 461), 32. Ridge V. Railroad Transfer Co. (56 Mo. App. 50), 680. Ridgley v. Stillwell (27 Mo. 128), 522. Ridgley v. Stillwell (28 Mo. 40), 146. Ridgely v. Stillwell (25 Mo. 570), 1G2. Ridgeway v. Hannum (129 Ind. App. 124), 139. m Ridgway v. Wharton (6 H. L. Cas. 288), 249, 360. Rigge V. Bell (5 Term. Rep. 471), 172. Riggin V. Maguire (15 Wall. U. S. 549), 1120. Riggs V. Gray (72 S. W. Rep. 101), 848. Riggs V. Pursell (66 N. Y. 193), 738, 910, 1051. Right V. Bawden (3 East, 460), 511. Right V. Cuthell (5 Esp. 149), 89. Right V. Darby (1 T. R. 159), 156, 158, 217. Right d. Lewis v. Beard (13 East, 210), 236. Riker v. Bagley (84 N. Y. 461), 1125. Riley v. Hale (158 Mass. 240), 703. Riley v. Jordan C122 Mass. 231), 1074. Riley v. Lally (172 Mass. 244), 1136, 1176. Riley v. Peltis Co. (96 Mo. 318), 858. Ring V. Johnson County (6 Iowa, 265), 65. Ringle v. Quigg (87 Pac. Rep. 724), 471. Ripley v. Page (12 Vt. 353), 1259. Riseley v. Ryle (11 M. & W. 6), 193. Rising V. Stannard (17 Mass. 282), 206, 208, 209, 215, 217, 228, 1306. Rittmaster v. Brisbane (19 Colo. 371), 349. Rives v. Dudley (3 Jones, N. C. Law, 126), 61. Rivett V. Brown (6 "\;VTfCES ARE TO PAGES.] Thompson v. Matthews (61 N. C. 15), 368. Thompson v. Mead (67 111. 395), 1439. Thompson v. Rose (8 Cow. N. Y. 263), 614. Thompson v. Sanborn (62 Mich. 141), 143. Thompson v. Stewart (60 Iowa, 223), 453. Thompson v. Thompson (9 Ind. 323), 342. Thomson v. Baltimore & S. Steam Co. (33 Md. 312), 1441. Thompson v. Williams (30 Kan. 414), 549. Thompson's Estate (1 Kulp Pa. 235), 575. Thomson v. Ludlum (74 N. Y Supp. 875), 1112. Thomson v. Smith (111 Iowa, 713), 1244. Thomson v. Tilton (22 Ky. Law Rep. 784), 1419. Thorn v. Sutherland (123 N. Y. 236), 1114. Thorndell v. Morrison (25 Pa. St. 326), 24. Thorndike v. Burrage (111 Mass. 531), 884. Thornton v. Carver (80 Ga. 397), 1430, 1446. Thornton v. Payne (5 Johns. N. Y. 74), 250, 348. Thorsgood v. Richardson (7 Bing. 420), 1442. Thousand Island Park Ass'n v. Tucker (173 N. Y. 203), 405. Thrall v. Omaha Hotel Co. (5 Neb. 295), 953, 954. Thresher v. E. London Water- works (2 B. & C. 609), 1287. Thropp V. Field (26 N. J. Eq. 82). 294, 664, 665. Thrnston v. Minke (32 Md. 487), 723. 758. Thum V. Rhodes (12 Colo. App. 245), 804. Thunder v. Belcher (3 East, 450), 147, 234. Thurber v. Dwyer (10 R. I. 355), 146. Thurlough v. Dresser (98 Me. 161), 395. Thursby v. Eccles (70 Law J. Q. B. 91), 379. Thursby v. Plant (1 Saund. 240), 494, 560. Thurston v. Minke (32 Md. 487), 612. Tibbals v. Iffland (10 Wash. 451), 390, 1045, 1090. Tibbits V. Moore (19 N. H. 369). 96. Tibbits V. Percy (24 Barb. N. Y. 39), 877. Tice V. Cowenhoven (63 N. J. L- 24), 169. Tichborne v. Weir (4 Reports, 26), 1069. Tidey v. Mollett (16 C. B. N. S. 298). 332, 868. Tidrick v. Rice (13 Iowa, 214), 101. Tidswell v. Whitworth (L. Rep. 2 C. P. 320), 1028. Tiefenbrine v. Tiefenbrine (68 Mo. App. 253), 388. Tiernan v. Miller (69 Neb. 764), 112. Tiley v. Moyers (43 Pa. St. 404), 1132, 1183. Tilford V. Fleming (64 Pa. St. 301). 483, 486. Tilghman v. Cruson (4 Har. Del. 341), 685. Tilghman v. Little (13 111. 239), 922, 924, 954. Tilleny v. Knoblauch (73 Minn. 108), 942. Tillotson V. Boyd (6 N. Y. Super. Ct. 516). 1081. TABLE OF CASES CITED. ccxv [references are to pages.] Tillotson V. Kennedy (5 Ala. 407), 212. Tilney v. Norris (1 Ld. Raym. 553), 619. Tilt V. Stratton (4 Bing. 46), 155. Tilton V. Emery (17 N. H. 536), 958. Tilton V. Sterling Coal & Coke Co. (28 Utah, 173), 980, 991. Tilyou V. Reynolds (108 N. Y. 558), 951. Timbrell v. Bullock (Sty. 446), 1200. Timlin v. Standard Oil Co. (126 N. Y. 514), 805, 836. Timmes v. Metz (156 Pa. St. 384), 1445. Timmins v. Rowlinson (3 Burr. 1603), 166, 217. Timms v. Baker (49 L. T. 106), 626. Tinder v. Davis (88 Ind. 99), 573, 579. Tinman v. McMeekin (42 S. Car. 311), 1455. Tippet V. Jett (10 La. O. S. 359), 958. Tischer v. Rutledge (35 Wash. 285), 1374. Tison V. Yawn (15 Ga. 491), 923. Title V. Kennedy (71 S. Car. 1), 1327. Titsworth v. Frauenthal (52 Ark 254), 1435. Toan V. Pine (80 Mich. 385), 532. Tobey v. County of Bristol (3 Story, U. S. 819), 572. Tobey v. Matimore (104 N. Y. Supp. 393), 1088. Tobey v. Webster (3 Johns. N. Y. 468), 685. Tobias v. Cohn (36 N. Y. 363), 685. Tobin V. Young (17 N. E. Rep. 625), 189, 217. Todd V. Blight (30 L. J. C. P. 21), 792- iodd V. Philhower (24 N. J. Law, 796), 462. Tod-Heatley v. Benham (58 L. J. Ch. 83), 747. Toleman v. Portbury (24 L. T. 24), 625, 651, 721. Toler V. Hayden (18 Mo. 399), 1274. Toler V. Seabrook (39 Ga. 14), 516. Toles V. Meddaugh (106 Mich. 398), 314. Tolle V. Orth (75 Ind. 298), 1218. Tollman v. Myrphy (120 N. Y. 345), 1151. Tolman v. Smith (85 Cal. 280), 27. Tolsma v. Adair (32 Wash. 383). 1233. Tomes v. Chamberlaine, (5 Mee. & Wei. 14), 198. Tomle V. Gampton (129 111. 379), 792. Tomle V. Hampton (28 111. App. 142), 792, 827. Tomlinson v. Day (2 Brod. & Bing. 680), 581, 1178. Tomlinson v. Greenfield (31 Ark. 557), 1436. Tompkins v. Lawrence (8 Car. & P. 729), 128. Tompkins v. Snow (63 Barb. N. Y. 525), 920. Tondro v. Cushman (5 Wis. 279), 920, 953. Tone V. Brace (11 Paige, N. Y. 566), 698. Toney v. Goodley (57 Mo. App. 235), 1430, 1446. Took V. Glascock (1 Saund. 343J, 683, 684. Toole V. Beckett (67 Me. 544), 808. Torrence v. Irwin (32 Yeates, Pa. 210), 686. Torreson v. Walla (11 N. D. 481), 852. Torrey v. Burnett (38 N. J. Law- 457), 1264. CCXVl TABLE OF CASES CITED. [refebexces are to pages.] Torrey v. Torrey (14 N. Y. 480), 234. Torrey v. Wallace (3 Cush. Mass. 442), 616, 1021, 1080. Torriono v. Young (6 Car. & P. 8). 138. Totten V. Phipps (52 N. Y. 354), 814. Toupin V. Peabody (162 Mass. 473), 390, 392. Tourtellot v. Rosebrook (11 Met. Mass. 480), 844. Tourtelot v. Junkin (4 Blackf. Ind. 483), 592. Towell V. Tranter (3 H. & C. 458), 374. Towerson v. Jackson (61 L. J. J. B. 36, 1891, 2 Q. B. 484), 34. Towne v. Bowers (81 Me. 491), 1306. Towne v. Butterfleld (97 Mass. 105), 198, 922, 940, 959. Tov/ne v. Campbell (3 Com. Bench. 921), 154, 159, 160. Towne v. Thompson (68 N. H. 317), 796. Townley v. Bedwell (14 Ves. 591), 996. Townley v. Oregon Ry. Co. (33 Oreg. 333), 686. Townsend v. Albers (3 E. D. Smith, N. Y. 560), 1210. Townsend v. Boyd (217 Pa. Sr. 386), 940. Townsend v. Gilsey (1 Sweeney N. X. 155), 1168. Townsend v. Hubbard (4 Hill, N. Y. 351), 332. Townsend v. Isenberg (45 Iowa. 670), 312, 1111. Townsend v. Tickell (5 E. C. L. 31), 1074. Trabue v. McAdams (8 Bush. Ky. 74), 1045. Tracy v. Albany Exch. Co. (7 N. Y. 472), 1367, 1368, 1384. Traders' Bank of Kirwin v. First Nat. Bank (6 Kan. App. 400), 1250. Traherne v. Saddleir (5 Bro. P. C. 179), 1106. Traintor v. Cole (120 Mass. 162), 84. Trapnall v. Merrick (21 Ark. 503), 329, 559. Trappan v. Morie (18 Johns. N. Y. 1), 1441. Trask v. Graham (47 Minn. 571), 518, 615, 1021, 1080. Trask v. Wheeler (7 Allen, Mass. 109), 490. Trathen v. Kipp (15 Colo. App. 426), 563. Travers v. Cook (42 HI. App. 580), 1425, 1442. Traylor v. Cabanne (8 Mo. App. 131), 45, 327. Treackle v. Coke (1 Vern. 165), 520. Treadwell v. Reynolds (47 Cal. 171), 350, 351. Treat v. Lord (42 Me. 552), 434. Trebar v. Biggs (L. Rep. Ex. 151), 1064. Trelvar v. Bigge (43 L. J. Ex. 95), i045. Tremeere v. Morrison (4 M. & Scott, 603), 47. Trenar v. Jackson (46 How. Prac. N. Y. 389), 721. Trenkman v. Schneider (56 N. Y. Supp. 770), 295, 564, 1143. Treport's Case (6 Coke, 14a), 86, 953. - Tress v. Savage (4 E. & E. 36), 147, 196, 332. Trevivian v. Lawrence (6 Mod. 256), 953. Trill V. Eastman (3 Met. Mass. 121), 614. Trimble v. Durham (70 Miss. 295). 1418, 1449. TABLE OF CASES CITED. CCXVH [reff.rexces are to pages. Trimble's Heirs v. Ward (14 B. Mon. Ky. 8), 449. Trinity Church v. Cook (11 Abb. Pr. N. Y. 371), 1024. Trinity Church v. Higgins (4 Rob. N. Y. 1), 1034. Trinity Church v. Vanderbilt (98 N. Y. 170). 1017. Tripp V. Hasceig (20 Mich. 254), 1315. Tritton v. Barnhart (56 L. T. 306), 757. Tritton v. Foote (2 Brown's Ch. 497), 1363. Tritton v. Toole (2 Bro. C. C. 636), 1372. Trout V. McDonald (S3 Pa. St. 144), 25, 100. Trower v. Wahner (75 111. 655), 800, 804. Truesdell v. Booth (4 Hun. N. Y. 100), 1149, 1152. Trulack v. Donahue (76 Iowa, 758), 1116. Trull V. Granger (8 N. Y. 115, 673. 677. Truss V. Old (6 Rand. Va. 556), 685, 1300, 1336. Trust Co. of North America v Manhattan Trust Co. (23 C. C. A. 30), 1420. Trustees v. Cowen (4 Paige, N. Y. 510), 616. Trustees v. Lynch (70 N. Y. 440), 742. Trustees v. Robinson (Wright, Ohio, 436), 343. Trustees v. Stevenson (1 Houst. Del. 451), 915. Tryon v. Davis (8 Wash. 106), 28. Tscheider v. Biddle (8 Fed. Cas. 4210), 984, 1188. Tubb V. Fort (58 Ala. 277), 492. Tube V. Montgomery (7 Tex. Civ. App. 557), 1187. Tuberville v. Stampe (12 Mod. 152), 843. Tucker v. Adams (52 Ala. 254). 317. Tucker v. Bennett (81 Pac. Rep 423), 853. Tucker v. Byers (57 Ark. 215), 291. Tucker v. Keeler (4 Vt. 161), 33. 232. Tucker v. Linger (51 L. J. Ch. 713), 711. Tucker v. Morse (1 C. & Ad. 865), 8. Tucker v. Whitehead (58 Miss. 762), 1112. Tucker Zeve & Co. v. Thomas (35 Tex. Civ. App. 499). 1414. Tudgay v. Sampson (30 L. T. 262), 459. Tufts V. Stone (70 Miss. 54), 1448. Tulk V. Moxhay (2 Phil. Ch. 774), 768. Tullis V. Tacoma Land Co. (19 Wash. St. 140), 941. Tully V. Dunn (42 Ala. 262), 518, 561. Tunis V. Grandy (22 Grat. Va. 100), 1178. 1180. Tunis Lumber Co. v. R. G. Dennis Lumber Co. (97 Va. 682), 1250. Turbeville d. Darden v. Ryan (1 Humph. Tenn. 113), 97. Turley Institute v. Memphis (8 Heisk. Tenn. 845), 1019. Turner v. Bank, of Fox Lake (3 Keyes N. Y. 425), 547. Turner v. Cameron's etc. Ry. (5 Ex. 932), 575. Turner v. Cool (23 Ind. 56), 1315, Turner v. Davis (48 Conn. 397). 258. Turner v. Doe dem. Bennett (9 M. & W. 643), 214, 215. Turner v. Ferguson (33 Tex. 505), 112. Turner v. Gaither (S3 N. C. 357), 19. ecxviii TABLE OF CASES CITED. [beferexces are to pages.] Turner v. Hutchinson (2 F. & F. 185), 97. Turner v. Kennedy (57 Minn. 104), 1265. Turner v. McCarthy (4 E. D. Smith, N. Y. 247, 804. Turner v. Power (7 B. & C. 625), 581. Turner v. Strange (56 Tex. 141), 1303. Turner v. Thompson (58 Ga. 268), 409, 410. Turner v. Townsend (42 Neb. 376), 874. Turner v. Wentworth (119 Mass. 459), 1249. Tustin V. Faught (23 Cal. 237), 27. Tuttle V. Bean (13 Met. 275), 663. Tuttle V. Manufacturing Co. (145 Mass. 169), 806, 860. Tuttler V. Reynolds (1 Vt. 80), 182. Twiss v. Boehmer (39 Oreg. 359), 243, 258. Twycross v. R. R. Co. (10 Gray, Mass. 293), 1025. Tyler v. Davis (61 Tex. 674), 920, 930. Tyler v. Disbrow (40 Mich. 415), 784. Tyler v. Dyer (13 Me. 41), 571. Tyler's Estate v. Giesler (74 Mo. App. 543), 463, 644, 1058. Tyrringham's Case (4 Coke, 37a), 446. Tyrwhitt v. Lambert (3 P. & D. 676), 581. Tyson v. Chestnut (118 Ala. 387). 694. Tyson v. Shueey (5 Md. 540), 685. U. Udden v. O'Reilly (180 Mo. 650) 828. Udell V. Peak (70 Tex. 547), 973. Uggla V. Brokaw (102 N. Y. Supp. 857), 807. Underbill v. Collins (132 N. Y. 271), 1199. Underwood v. Birchard (47 Vt. 305), 672, 701. Underwood v. Burrows (7 Car. & P. 26), 420. Underwood v. Hitchcock (1 Ves. Sr. 279), 1002. Underwood v. Stuyvesant (19 Johns. N. Y. 181), 431. Unger v. Bamberger (6 Ky. Law Rep. 447), 1364. Ungles V. Graves (2 Blackf. Ind. 191), 1441. Union Banking Co. v. Gittings (45 Md. 181), 385, 566. Union Pacific R. Oo. v. Chicago R. I. & P. Ry. Co. (164 ni. 88), 561. Union Pac. Ry. Co. v. Chicago, R. L & P. Ry. Oo. (51 Fed. Rep, 309), 67. Union Ry. Co. v. Chickasaw, Coop. Oo. (95 S. W. Rep. 171), 73. Union W. & El. Co. v. Mclntyre, (84 Ala. 78), 1467. Union Water Power Co. v. Chabot (93 Me. 339), 1420. Union Water Power Oo. v. Lewis- ton (95 Me. 471), 453. United States v. Boswick, (94 U- C. 66), 710. United States v. Brooks (10 How. U. S. 442), 38, 39. United States Flournoy Live Stock & R. E. Co.) 69 Fed. Rep. 886), 40. United States Bank v. Athens Armory (35 Ga. 344), 28. United States v. Parrott (1 Mc- Allister U. S. C. O. 271), 710. United States Trust Co. v. New York W. S. & B. R. Co. (lOl N. Y. 483), 1122. . United States Trust Co. v. O'Brien (143 N. Y. 284), 692, 759. TABLE OF CASES CITED. CCXIX [references are to pages.] United States Mfg. Co. v. Stevens (52 Mich. 330), 1298. University v. Joslyn (21 Vt. 52), 332, 559. Updegraff v. Lesem (Colo. App. 1900, 62 Pac. Rep. 342), 628, 1250, 1267. Updike V. Campbell (4 E. D. Smith, N. Y. 570), 775. Upham V. Head (74 Kan. 17), 865. Upper Appomatox Co. v. Hamil- ton (S3 Va. 319), 1437. Upton V. Greenless (17 Com. B. 64), 1136. Upton V. Hosmer (70 N. H. 493), 1045, 1294. Upton V. Townsend (17 C. B. 30), 699, 1129, 1142, 1340. Usher v. Moss (50 Miss. 208), 139. Utah Loan, etc. Co. v. Garbutt (6 Utah, 342), 55, 148, 151. Utah Optical Oo. v. Keith (18 Utah 464), 1185. Uttendorfer v. Saegers (50 Cal. 496), 685. V. Vai V. Weld (17 Mo. 332), 847. Vale V. Moorgate Buildings (80 L. T. 487), 744. Valentine v. Healey (86 Hun. 259), 83, 85. Valle V. Fargo (1 Mo. App. 344), 1014. Valpy V. St. Leonard's Wharf Co. (1 L. G. R. 305), 1028. Va. Min. & Improvement Co. v. Hoover (82 Va. 449), 282. Van V. Oorpe (3 Myl. & K. 269), 364, 607. Van Arsdale v. Buck (81 N. Y. Supp. 1017), 573. Vanatta v. Brewer (32 N. J. Eq. 268>, 620. Van Brunt v. Wallace (88 Minn. 116), 219, 1207. Van Buskirk v. Gordon (10 N. Y. St. Rep. 351), 847, 877, 1214. Vance v. Lowther (45 L. J. Ex. 200), 343. Vance v. Ranfurley (1 Ir. Ch. R. 322), 1370. Vance v. San Antonio Gas Co. (Tex. 60 S. W. R. 317), 680. Vancleave v. VvMlson (73 Ala. 387), 944. Van Cortlandt v. Underbill (17 Johns. N. Y. 405), 1273. Vandegrift v. Abbott (75 Ala. 487), 563. Vanderbeck v. Hendry (34 N. J. L. 467), 804, 813. Vanderbilt v. Persse (3 E. D. Smith, N. Y. 727), 1149, 1167. Vanderheuvel v. Starrs (3 Conn. 303), 317. Vanderpool v. Smith (1 Daly N. Y. 311), 1134, 1190. Vanderpool v. Smith (2 Daly N. Y. 135), 1349. Van Deusen v. Young (29 N. Y. 9), 716, 1336. Vandoren v. Everitt (5 N. J. Law, 460), 15, 1314, 1306. Van Doren v. Robinson (13 N. J. Eq. 256), 984. Van Driel v. Rosierz (26 Iowa 575), 493. Vanduyn v. Hepner (45 Ind. 589), 957. Vane v. Lord Barnard (2 Vern. 738), 725. Van Every v. Ogg (59 Cal. 563), 852, 862. Van Home v. Grain (1 Paige, N. Y. 455), 999. Van Hess v. Hyatt (28 Fed. Cas. 16, 867), 390. Van Ness v. Pacard (2 Pet. U. S. 137), 465, 1245, 1250, 1259. Vann v. Rouse (94 N. Y. 401), 1154, 1360. ecxx TABLE OF CASES CITED, [rEFEREXCES ABE TO PAGES.] Van Patten v. Leonard (55 Iowa, 520), 1408. Van Rensselaer v. Bradley (3 Denio N. Y. 135), 541. Van Rensselear v. Gallup (5 Denio N. Y. 454), 541. Van Rensselear v. Jewett (5 Denio, 121), 524. Van Rensselaer v. Jones (2 Barb. N. Y. 643), 543, 1095. Van Rensselaer v. Pennimann (6 Wend. N. Y. 569), 1195, 1203, 1276, 1397. Van Rensalaer v. Quackenboss (17 Wend. N. Y. 34), 1444. Van Rensselear v. Read (26 N. Y. 558), 504. Van Rensselaer v. Secor (32 Barb. N. Y. 469), 262, 1069. Van Schaick v. Third Ave. R. R. Co. (38 N. Y. 346), 1080. Van Siclen v. City of New York 64, 688. Van Soligen v. Harrison (39 N. J. Law, 51), 333. Van Studdiford v. Kohn (46 Mo. App. 436), 173. Van Vleck v. White (72 N. Y. Supp. 1026), 1267, 1285. Van Wagner v. Van Nostrand (19 Iowa, 422), 491. •Van Warden v. Winslow (117 Mich. 564), 689. Van Wicklen v. Paulsen (14 Barb. N. Y. 654), 492, 593, 1111. Van Wickles v. Alpaugh (3 N. J. Law, 446), 960. Van Wormer v. Orane (51 Mich. 363), 902. Varley v. Coppard (L. R. 7 O. P. 505), 1053. Varley v. Leigh (2 Ex. 446), 560. Vatel V. Herner (1 Hilt, N. Y. 149), 1131, 1136. Vaughan v. Blanchard (1 Yeates, Pa. 175), 1180. Vaughan v. Hancock (3 O. B. 766), 379. Vaughan v. Menlove (3 Bing. N. C. 468), 844. Vaughn v. Howell (83 Ga. 336), 1318. Vaughn v. Matlock (23 Ark. 9). 604. Veal V. Hanlon (123 Ga. 642), 801, 853. Vegely v. Robinson (20 Mo. App. 199), 522. Venable v. McDonald (4 Dansi, Ky. 336), 198. Vere v. Lovenden (12 Vea. 179), 607. Vermilya v. Austin (2 E. D. Smith, N. Y. 302), 1180. Vermont v. Society, etc. (28 Fed. Cases, 16, 919), 632. Vernam v. Smith (15 N. Y. 327), 576. Verplanck v. Wright (23 Wend. N. Y. 506), 620. Ver Steeg v. Becker-More Paint Co. (108 Mo. App. 257), 153, 244, 346. Vetter's Appeal (99 Pa. St. 52), 505. Viany v. Ferran (5 Abb. Pr. N. S. N. Y. 110), 1390. Vick V. Ayres (56 Miss. 670), 322. Victory v. Foran (56 N. Y. Super. Ot. 507), 805. Victory v. Stroud (15 Tex. 573), 258. Vigers v. St. Paul's (14 Q. B. 909), 485. Vilas V. Mason (25 Miss. 310). 1301. Villard v. Roberts (1 Strob. S. C. 393), 395. Vincent v. Corbin (85 N. C. 108), 162. Vincent v. Crane (10 Det. Leg. N. 653), 559, 893, 906, 1054. TABLE OF CASES CITED. CCXXl [beferexces are to pages.] Vincent v. Frelich (50 La. Ann. 378), 1349. Vincent v. Rather (31 Tex. 77), 101. Viner v. Vaughan (2 Beav. 4GG), 710. Vinson v. Graves (16 La. Ann. 162), 1359. Vinz V. Beatty (61 Wis. 645), 275. Virden v. Ellsworth (15 Ind. 144), 592. Viterbo v. Friedlander (120 U. S. 707j, 783, 1359. Vivian v. Moat (50 L. J. Oh. 331), 965. Voege V. Ronalds (83 Hun. 114), 466, 1364, 1378. Voight V. Resor (80 111. 331), 262. Volmer v. Wharton (34 Ark. 691), 1432. Von Glahn v. Brennan (81 Cal. 261), 182. Voorhies v. Burchard (55 N. Y. 98), 446. Voorhees v. McGinnis (48 N. Y. 282), 1246, 1248. Vorse V. Des Moines M. & M. Co. (104 Iowa, 541), 1014, 1027, 1264, 1267. Vose V. Baker (1 Cranch, C. C. 104), 690. Vose V. Bradstreet (27 Me. 156), 337, 462. Voss V. King (38 W. Va. 607), 920, 936. Vyvyvan v. Arthur (1 Barn. & C. 410), 768. Waddilove v. Barnett (2 Bing. N. C. 543), 545. Wade V. Halligan (16 111. 507), 697, 1139, 1180. Vade V. Herndl, (127 Wis. 544), 1169, 1186. Wade V. Smith Penn. Oil Co. (45 W. Va. 380), 995. Wade V. South Penn. Oil Co. (45 W. Va. 390), 936. Wades v. Figgatt (75 Va. 575), 1437. Wadleigh v. Janvrin (41 N. H. 503), 1260. Wadlington v. Hill (18 Miss. 560), 604. Wadlow v. Markey (95 111. App. 484), 1061. Wadman v. Burke (81 Pac. Rep. 1012), 1287, 1288. Wadsworthville v. Jennings (40 S. C. 168), 967. Waggener v. McLaughlin (33 Ark. 195), 956, 1005. Waggoner v. Jermaine (3 Denio, 306), 794. Waggoner v. Snoddy (36 Tex. Civ. App. 514), 1046. Wahl V. Barroll (8 Gill. Md. 288), 551, 1097, 1228. Wainscottv. Silvers (13 Ind. 497). 844. Wainwright v. Ramsden (5 Mee. Wei. 602), 1179. Wait, In re (7 Pick. Mass. 100), 51S. Waite V. O'Neil (76 Fed. Rep. 408), 893, 1157, 1136, 1140. 1343. Walden v. Bodley (14 Pet. U. S. 156), 921. Walden v. Conn. (84 Ky. 312), 679, 688. Waldo V. Hall (14 Mass. 486). 1077. Waldorff Astoria Segar Co. v. Sal omon (184 N. Y. 584), 745. Walker v. Cromley (14 Wend. N Y. 63), 1087. Walker v. Dohan (39 La. Ann. 743), 1086. Walker v. Edmundson (111 Ga. 454), 995. Walker v. Engler (30 Mo. 130), 657. Walker v. Fisher (117 Mich. 72), 936. cexxii TABLE OF CASES CITED. [references are to pages.] Walker v. Gilbert (2 Rob. N. Y. 214), 860, 861. Walker v. Harper (33 Mo. 592), 920. Walker v. Jeffreys (1 Hare. 341), 1385. Walker v. Patterson (33 Tex. Civ. App. 50), 1420. Walker v. Ricbardson (2 Mee. & Wei. 882), 1199. Walker v. Seymour (13 Mo. 592), 1389. Walker v. Swayzee (3 Abb. Pr. N. Y. 138), 860, 879. Walker v. Tucker (70 111. 528), 453, 455, 760, 1129, 1136. Walker v. Wadley (124 Ga. 275), 1370. Walker v. Whittemore (112 Mass. 187) 1023. Walker Ice Co. v. American Steel & Wire Co. (185 Mass. 463), 435. Walker's Case (3 Co. 22a), 559. Wall V. Hinds (4 Gray, Mass. 256), 1019, 1093, 1300, 1349, 1354. Wallace v. Drew (59 Barb. N. Y. 413), 431. Wallace v. Kennedy (47 N. J. Law, 242), 1213. Wallace v. Lent (1 Daly, N. Y. 481), 785, 1150. Wallace v. Patten (12 CI. & F. 491), 1227. Wallace v. Wilcox (27 Tex. 60), 958. Waller v. Edmonds Cockfield (111 La. 595), 1130. Walls V. Atcheson (3 Bing. 462), 1199, 1208. Walrond v. Hawkins (44 L. J. C. P. 116), 647, 1058. Wailser v. Graham (45 Mo. App. 629), 976. Walsh V. Bourse (15 Super. Ct. Pa. 219), 817. Walsh V. Lonsdale L. R. (21 Oh. Div. 9), 505. Walsh V. Martin (69 Mich. 29), 464, 1200, 1398. Walsh V. Pemberton (Selw. N. P. 613), 510. Walsh V. Sichler (20 Mo. App. 374), 1264. Walter v. Dewey (16 Johns. N. Y. 222), 528. Walter v. Maunde (1 J. & W. 181), 1075. Walter v. Waterhouse (3 Saund. 420), 1340. Walter Commission Co. v. Gille- land (98 Mo. App. 584), 664. Walters v. Hutchin's Adm'x (29 Ind. 136), 1336. Walters v. Myer (39 Ark. 560), 1400, 1403. Vv^alters v. Snow (32 N. Car. 292), 867. Walton V. Jordan (65 N. Car. 170), 1317. Walton V. Stafford (162 N. Y. 563), 1063. Walton V. Wray (54 Iowa, 531), 1250. Wamganz v. Wolff (86 Mo. App 205), 1186. Wampler v. Weinmann (56 Minn. 1), 1354. Ward V. Bull (1 Fla. 271), 1340, 1345. Ward V. Day (5 B. & S. 359), 656. Ward V. Day (4 Best & Smith, 327), 654. Ward V. Earl (86 111. App. 635), 1252. Ward V. Edesheimer (17 N. Y. Supp. 173), 672. Ward V. Fagan (28 Mo. App. 110), 800. Ward V. Fagin (101 Mo. 669), 847, 849. Ward V. Hartpole (3 Bligh. 470), 475: Ward V. Kelsey, (42 Barb. N. Y. 582), 857, 864. TABLE OF CASES CITED. cexxiu [BEFEREXCES ABE TO PAGES.] Ward V. Langmade (9 0. Cir. Ct. Rep. 85), 757. Ward V. Lumley (5 H. & N. 87), 1237. Ward V. Noel (37 Ala. 500), 409. Ward V. Philadelphia (6 Atl. Rep. 263), 929. Ward V. People (6 Hill, N. Y. 144), 435. Ward V. Sheppard (3 N. C 283). 717. Ward V. Walker (111 Iowa, 611), 1422. Ward V. Walton (4 Ind. 75), 1195. Ward V. Wandell (10 Pa. St. 98), 585. Ward & Co. v. Robertson (77 Iowa, 159), 418. Wardlow v. Herrington (54 S. E. Rep. 699), 1126. Ware v. Lithgow (71 Me. 62), 699. Ware v. Ware (6 N. J. Eq. 117), 724. Warfield v. Oliver (23 La. Ann. 612), 1415. Waring v. King (8 M. & W. 571) 577. Warne v. Waggoner (15 Atl. Rep. 1507), 1188. Warner v. Abbey (112 Mass. 345), 686, 690. Warner v. Cochrane (128 Fed. Rep. 553), 645, 654, 1058, 1079. Warner v. Hitchins (5 Barb. N. Y. ■666), 883, 895. Warner v. Rice (31 Ark. 344), 1410, 1411. Warren v. Jones (70 Miss. 202), 1430, 1432. Warren v. Wagner (75 Ala. 188). 892, 1130, 1160, 1170, 1176, 1180. Warren, In re (4 Ct. CI. 526), 874. Warrill v. Barnes (57 Ga. 404), 1424. Warstell v. Ward (1 Bush. Ky. 198), 1466. Washburn v. Frank (31 La. Ann. 427), 1446. AVashington v. Conrad (2 Humph. Tenn. 562), 924. Washington v. Williamson (23 Md 244), 1441. Washington Co. v. Roger Williams Silver Co. (25 R. I. 483), 1069. Washington Natural Gas Co. v. Johnson (123 Pa. St. 576), 1081. Watchman v. Crook (5 Gill & J. 239), 604. Waterhouse v. Joseph Schlitz .(12 S. D. 397), 798. Waterman v. Clark (58 Vt. 601), 1271. Waterman v. Harkness (2 Mo. App. 494), 1014. Waters v. Reuber (16 Neb. 99), 1265. Watkins v. Duvall (69 Miss. 364), 1412. Watkins v. Goodall (138 Mass 533), 804, 813, 816. Watkins v. Green (22 R. I. 34), 465. Watriss v. First National Bank (130 Mass. 343), 914. Watriss v. First Nat. Bank (124 Mass. 571), 1269, 1287, 1290. Watson V. Almirall (70 N. Y. Supp 662), 848, 855. Watson V. Duke of Northumber- land (11 Ves. Jr. 153), 572. Watson V. Home (7 B. & C. 2S5), 1007. Watson V. Hospital (14 Ves. 333). 874. Watson v. Hunkins (13 Iowa, 547), 1112. Watson V. Huntoon (4 III. App 291), 563. Watson V. Merrill (136 Fed. Rep. 359), 1239. Watson V. Moulton (100 111. App. 560), 847, 855. cexxiv TABLE OF CASES CITED, [references ake to pages.] Watson V. Shackford (95 Me. 69), 789. Watson V. Smith (10 Yerg. Tenn. 476), 964. Watson V. Waud (8 Ex. 335), 556. Watt V. Scofield (76 111. 261), 1420, 1431, 1432, 1457. Watts V. Coffin (11 Johns. N. Y. 495), 877. Watts V. Kellar (56 Fed. Rep. 1), 981. Watts V. Lehmann (107 Pa. St. 106), 1301. Way V. Meyers (64 Ga. 760), 1131. 1132. Way V. Reed (6 Allen, Mass 364), 637, 1094. Wayland v. Mosely (5 Ala. 430), 549. Weatherall v. Geering (12 Ves. 504), 1066. Weatherbury v. Baker (25 La. Ann. 229), 1044. Weathersby v. Sleeper (42 Miss. 732), 1250, 1264. Weaver v. Earle (5 Gush. 31), 723. Weaver v. Southern Oregon Co. (31 Oreg. 14), 575. Webb V. Arnold (52 Ark. 358). 1465. Webb V. Austin (7 M. & G. 701), 952, 953. Webb V. King (21 App. D. C 141), 667, 1032. Webb V. Marshall (13 Wall. U. S. 15), 1422. Webb V. Plummer (2 B. & Ad. 746), 603, 1314. Webb V. Russell (3 T. R. 401), 1206. Webb V. Sharpe (80 U. S. 14). 1436, 1454. Webb V. Weaver (79 111. App. 657), 573. Weber v. Gage (39 N. H. 182), 440. Weber v. Liebermann (94 N. Y. Supp. 460), 82f>. V/ebster v. Cooper (14 How. U. S. 501), 640. Webster v. Nichols (104 111. 160), 615, 644, 647, 1034, 1068, 1407. Webster v. Nosser (2 Daly, N. Y. 186), 878. Weddall v. Capes (1 M. & W. 5052), 1196. Weeber v. Hawes (80 Minn. 476), 1358. Weed V. Crocker (13 Gray, Mass. 219), 513, 1364. Weed V. Standley (12 Fla. 166), 1402. Weeks v. International Trust Co. 125 Fed. Rep. 370), 637. Weeton v. Woodcock (7 M. & Q. 14), 1287. Wegner v. Lubenow (12 N. D. 95), 503, 504. Weichelbaum v. Burlett (20 Kan. 709), 956. Weide v. St. Paul Boom Co. (99 N. W. Rep. 421), 1068. Weider v. McComb (10 Tex. Civ. App. 85), 933. Weigall V. Waters (6 T. R. 488). 851. Weil V. Abraham (66 N. Y. Supp. 244), 735. Weil V. Abrahams (100 N. Y. St. Rep. 244), 759. Weil V. Gilchrist (52 Ohio St. 677), 899. Weil V. Monro (3 N. Y. Supp. 25), 419. Weinberg v. Greenberger (93 N. Y. Supp. 530). 587. Weinberger v. Kratzenstein (71 App. Div. 155), 820. Weiner v. Baldwin (9 Kan. App. 772), 1222. Weinhandler v. Eastern Brewing Co. (89 N. Y. Supp. 16), 1070. Weinmann's Estate In re (30 Atl. Rep. 389), 1062. TABLE OF CASES CITED. CCXXV [references are to pages.] Weinstein v. Harrison (60 Tex. 4J6), 848, 849. Weisbrod v. Dembowsky (25 Misc. Rep. 485), 644. Weiss V. Mendelson (24 Misc. Rep. 692), 1205, 1240. Weitheimier v. Circuit Court (83 Micli. 5), 1060. Welch, In re (108 Fed. Rep. 367), 1254. Welch V. Fitterling (72 Minn. 483), 641, 644. Welch V. Horton (73 Iowa, 250), 491, 1112, 1115. Welch V. Walsh (177 Mass. 555), 593. Welcome v. Hess (90 Cal. 507), 1200, 1213, 1293. Welcome v. Labonte (63 N. H. 124), 519. Weld V. Clayton le Moors Urban Council (86 Law T. 584), 1029. Weldon v. Harrison (17 Johns. N. Y. 66), 1052. Well V. Raymon (142 Mass. 206), 1054. Weller v. McConnick (19 'Atl. Rep. 1102), 825. Wellmaker v. Wheatley (123 Ga. 201), 982. Wells V. Cody (112 Ala. 278), 1117. Wells V. Higgins (132 N. Y. 459), 1123. Wells V. Mason (5 111. 84), 934, 1171. Wells V. Sheerer (78 Ala. 142), 965. 972. Wells V. Thompson (50 Ala. 83), 1437, 1438. Welsh V. Phillips (54 Ala. 309), 1228. Weltman v. August (11 Tex. Civ. App. 604), 1284. Weltner's Appeal (03 Pa. St. 302), 1441. Went worth v. Railroad Co. (55 N. H. 540), 685. Werdner v. Foster (2 P. & W. Pa. 26), 1080. Werner v. Footman (54 Ga. 128), 465. Werner v. Padula (167 N. Y. 641), 1358. Wertheimer v. Circuit Court (83 Mich. 56), 733. Wertheimer v. Hosmer (83 Mich. 56), 757. Wertheimer v. Saunders (95 Wis. 573), 802, 803. Wescott V. Delano (20 Wis. 514), 1316. Wesener v. Smith (85 N. Y. Supp. 837), 834. Wessel V. Gerken (36 Misc. Rep. 221), 817, 822. West V. Blakeway (2 Man. & Gr. 727), 1281. West V. Davis (7 East, 363), 634. West V. Dobb (10 B. & S. 987), 612, 1056. West V. Lassels (Cro. Eliz. 851), 541. West V. Louisville, etc. Co. (8 Bush, Ky. 404), 794. West V. Price (2 J. J. Marsh. Ky. 380), 958. West V. Sink (2 Yeates, Pa. 374), 1443, 1444. West Chicago Masonic Ass'n v. Cohn (192 111. 210), 825. Western v. Russell (3 Ves. & B. 192), 982. Western Granite & Marble Co. v. Knickerbocker (103 Oal. Ill), 409. Western N. C. R. Co. v. Deal (90 N. C. 110), 1232. Western N. Y. & P. Ry. Co. v. Rieck (83 App. Div. 576), 1369. Western Union Tel. Oo. v. Smith (64 Ohio St. 106), 681. West Ham Board v. East London Waterworks Co. (69 Law J. Ch. 257), 707. cexx\a TABLE OP CASES CITED. [eeferences are to pages.] West Koslikonong v. Ottesen (80 Wis. 62), 944. Westlake Degraw (25 Wend. N. Y. 669), 877. Westmoreland v. Cambria Co. (130 Pa. St. 233), 634. Westmoreland v. Foster (60 Ala. 44), 1118. Westmoreland v. Wooten (58 Miss. 825), 1429, 1457. Westmoreland Natural Gas Oo. v. De Witt (130 Pa. St. 235), 645. Weston V. Collins (34 L. J. Cli. 353), 991. West Shore Mills Co. v. Edwards 24 Oreg. 475), 492,' 503, 920, 936. 1111, 1112. West Shore R. Co. v. Wenner (79 N. J. L. 233), 612 1051. West Side Auction House Co. v. Ct. Ins. Co. (85 111. App. 497), 1216. West Side Savings Bank v. New- ton (76 N. Y. 616), 784, 1142, 1148. West Transportation Co. v. Lan- sing (49 N. Y. 499), 1365, 1374. West Virginia, etc. v. Mclntire (44 W. Va. 210), 616. Wetherell v. Joy (40 Me. 325), 552. Wetherill v. Gallagher (211 Pa. St. 306), 1261. Wetmore v. Robinson (2 Conn. 529), 439. Wetsel V. Mayers (91 111. 497), 1441. Wetzel V. Meranger (85 111. App. 457), 1298. Wetzell V. Richcreek (53 Ohio St. 62), 1077, 1088. Whalen v. Kauffman (19 Johns, N. Y. 97), 604. Wharton v. Anderson (28 Minn. 301), 555. Wheat V. Watson (57 Ala. 581), 1199. Wheeler v. Bedell (40 Mich. 693), 1246. Wheeler v. Bedford (54 Conn. 244), 440, 441. Wheeler v. Crawford (86 Pa. St. 327), 850. Wheeler v. Dascomb (3 Cush. Mass. 285), 620. Wheeler v. Earle (5 Cush. Mass. 35), 612, 616, 768, 769. Wheeler v. Foote (97 S. W. Rep. 447), 957. Wheeler v. Gilsey (35 How. Prac N. Y. 139) 441. Wheeler v. Stevens (6 H. & N. 155), 1236. Wheeler v. Walden (17 Neb. 122), 1195, 1199, 1200. Wheeler v. Warschauer (21 Cal. 309), 934. . . Wheelock v. Warshauer (34 Cal. 265), 1171, 1173. Wheeton v. Woodcock (7 Mee. & Wei. 14), 1265. Whetstone v. Davis (34 Ind. 510) 1381. Whetstone v. McCartney (32 Mo. App. 430), 559, 1093. Whidden v. Toulmin (6 Ala. 104). 1441. Whipley v. Dewey (8 Cal. 35), 1285. Whipple v. Foot (2 Johns. N. Y. 418), 1306, 1329. Whipple V. Gorsuch (101 S. W. Rep. 735), 692. . Whipple V. Tucker (123 111. App. 223), 465. Whitaker v. Hawley (Cy. 4 687), 1342, 1342. Whitcomb v. Cummings (68 N. H. 67), 1094. Whitcomb v. Mason (62 Atl. Rep. 749), 423, 804, 813. Whitcomb v. Starkey (G3 N. H. 607), 1081. TABLE OF CASES CITED. CCXXVU [references ABE TO PAGES.] White V. Albany Railway Co. (17 Hun. N. Y. 95), 857. White V. Arndt (1 Whart. Pa. 91), 1270. White V. Berry (24 R. I. 74), 1235. White V. Bradley (6G Me. 254), 410. White V. Campion (1 W. N. C. Pa. 130), 855. White V. Grennish (11 C. P. N. S. 209), 1229. White V. Griffing (44 Conn. 437), 1121. White V. Harrow (86 L. T. 4), 409. White V. Hotel (1897) (1 Oh. 767), 616, 769. White V. Kane (53 Mo. App. 300), 1112. White V. Loomis (27 Hun, N. Y. 328), 1083. White V. McAllister (67 Mo. App. 314), 1452. White V. McMurray (2 Brewst. Pa. 485), 665. White V. Molyneux (2 Ga. 124), 1340, 1345. White V. Montgomery (58 Ga. 204), 828, 840. White V. Southend Hotel Co. (66 L. J. Ch. 387), 768. A\Tiite V. Thomas (52 Miss. 49, 52), 1456. White V. Thurber (55 Hun, 447), 700, 854, 864. White V. Wagner (4 Har. & J. 373), 721, 733. White V. Wakley (26 Beav. 17), 889, 962. White V. Walker (38 111. 422), 556. White V. Warner (2 Mer. 459), 667, 1038. White V. Weaver (68 N. J. Eq. 644), 982. White's Appeal (10 Pa. St. 252), 1232. Whitehead v. Clifford (5 Taunt. 518), 576, 1210, 1238. Whitehead v. Comstock Oo. (25 R. I. 423), 427, 783, 823. Whitehouse v. Aiken (77 N. E. Rep. 499), 408. Whitfield v. Brandwood (2 Stark.), 1007. Whiting V. Edmunds (94 N. Y. 309), 958, 965. Whiting V. Eichelberger (16 Iowa, 422), 1404. Whitley v. Gough (2 Dyer, 140), 1200. Whitlock V. Duffield (1 Hoff. Ch. N. Y. 110), 1363, 1367. Whitlock's Case (8 Coke, 69b), 529. Whitman v. Louten (3 N. Y. Supp. 754), 1236. Whitmarsh v. Cutting (10 Johns, 360), 1306, 1311. '^Tiitmore v. Humphries (41 L. J- C. P. 43), 961. "Wliitmore v. Orono Co. (91 Me. 297), 788. Whitney v. Allaire (4 Denio, N. Y. 554), 480. Whitney v. Farrar (51 Me. 418), 1450. Whitney v. Myers (8 N. Y. Super Ct. 266), 1195, 1201, 1213. Whitney v. Olney (3 Mason, U. S. 280), 448. Whitney v. Railway (11 Gray, Mass. 359), 742. Whitney v. Sweet (22 N. H. 10), 1299. Whitton V. Peacock (2 Bing. N. C. 411), 941. Wick. V. Bredin (1S9 Pa. St. S3), 1286. Wickenden v. Webster (5 El. & B. 387), 739. Wickey v. Eyster (58 Pa. St. 501), 1441. Wiener v. Baldwin (9 Kan. App. 772), 1213. QCXXVIH TABLE OF CASES CITED. [references are to pages.! Wiggin V. Wiggin (58 N. H. 235), 927. Wiggins V. St. Louis, M. & S. E. R. Co. (95 S. W. Rep. 311), 681. Wiggins Ferry Co. v. Railroad Co. (142 U. S. 396), 1249. Wigglesworth v. Dallison (1 Doug. 210), 1313, 1314. Wilber v. Follansbee (97 Wis. 577), 814. Wilbraliam v. Livesy (18 Beav. 206), 607. Wilcox V. Gate (65 Vt. 478), 729, 783. Wilcox V. Cartwright (1 Lack. Leg. Rec. Pa. 130), 638. Wilcox V. Hines (100 Tenn. 524), 791, 859. Wilcox V. Pa. etc. Co. (15 W. N. Cas. Pa. 367), 1154. Wilcox V. Zane (167 Mass. 302), 804. Wilcoxen v. McCray (38 N. J. Eq. 466), 404. Wilcoxin v. Donnelly (90 N. Car. 245), 492. Wilczinski v. Lick (68 Miss. 596), 1436. Wilde V. Cantillon (1 Johns. Cas. N. Y. 123), 686. Wilder v. Beed (4 Ohio, N. P. 440), 1060. Wildey Lodge v. City of Paris (73 S. W. Rep. 69), 645, 1044, 1058. Wildman v. Taylor (4 Ben. 42), 639. Wildrick v. Swain (34 N. J. Eq. 167), 549. Wild's Lessee v. Serpell (10 Gratt. Va. 405), 923. Wiley V. Conner (44 Vt. 68), 1318. Wilgus V. Gettings (21 Iowa, 177), 1250. Wilgus V. Whitehead (8 Pa. St. 131), 460, 556. Wilkerson v. Farnham (82 Mo. 672), 1277. Wilkerson v. Thorp (128 Cal. 221), 1458. Wilkes V. Davis (3 Mer. 509), 1293. Wilkins v. Pensacola City Co. (36 Fla. 36), 965, 972. Wilkins v. Wingate (6 Term. Rep. 62), 581. Wilkinson v. Clauson (29 Minn. 91), 698, 782. Wilkinson v. Colley (5 Burr. 2694), 1124. Wilkinson t. Hull (1 Bing. 713), 609. Wilkinson v. Ketler (69 Ala. 435), 1315, 1424. Wilkinson v. Libby (1 Allen, Mass. 375), 1015. Wilkinson v. Pettit (47 Barb. N. Y. 230), 616, 1081, 1391. Wilkinson v. Rogers (10 Jur. N. S. 5), 617, 737, 757. Wilkinson v. Stanley (43 S. W. Rep. 606), 1186. Wilkinson v. Wilkinson (62 Mo. App. 519. Willard v. Benton (57 Vt. 286). 638. Willard v. Rogers (54 111. App 583), 1423. Willard v. Tayloe (8 Wall. U. S. 558), 981, 982. Willard v. Tillman (19 Wend. N. Y. 358), 1340. Willard v. World's Fair Encamp- ment Co. (59 111. App. 336), 140 7, 1428. Williams v. Baker (41 Md. 523), 448. Williams v. Bartholemew (1 Bos. & Pul. 326), 530. Williams v. Bosanquet (1 Brod. & Bing. 238), 1081, 1106. Williams v. Braden (2 Mo. App. Rep'r 846), 1419, 1457. Williams v. Burrell (1 Com. Bench 402), 614. TABLE OP CASES CITED. CCXXIX [references ABE TO PAGES.] Williams v. Cash (27 Ga. 507), 920, 949. William Clun's Case (10 Coke, 127b), 531. Williams v. Craig (2 Edw. Ch. N. Y. 297), 1020. Williams v. De Lisle Store Com- pany (104 Mo. App. 567), 1432. Williams v. Downing (18 Pa. S*^^. 60), 1074, 1107. Williams v. Earle (9 B. & S. 740), 617. Williams v. Exhibition Co. (188 111. 19), 1296. Williams v. Gabriel (75 L. J. K. B. 149), 1180. Williams v. Garrison (29 Ga. 503), 964. Williams v. Glover (66 Ala. 189), 512. Williams v. Hay ward (1 El. & El. 1040), 485, 1118, 1145. Williams v. Iliphant (3 Ind.), 694. Williams v. Kent (67 Md. 350), 463, 1009. Williams v. Ladew (171 Pa. St. 369), 578. Williams V. Lane (62 Mo. App. 66), 1264, 1287. Williams v. Lilley (67 Conn. 50), 999. Williams v. McAiley (Cheves, S. C. 20), 958, 960. Williams v. McFall (2 S. & R. Pa. 280), 798. Williams v. Mershon (57 N. J. Law, 242), 1382. Williams v. Michigan Cent. R. Co. (10 Det. Leg. N. 238), 1025, 1096. William v. New Albany & S. R. Co. (5 Ind. 111.), 870. Williams v. Towl (65 Mich. 204), 955, 956. Williams v. Vanderbret (145 111. 238), 648, 657, 1195, 1200, 1213. Williams v. Wait (2 S. D. 210), 927, 937. Williams v. Williams (12 East, 209), 1258. Williams v. Williams (43 L. J. C. P. 382), 891. Williams v. Woodward (2 Wend. N. Y. 487), 1069. Williamson v. Crassett (62 Ark. 393), 1195, 1236. Williamson v. Russell (18 W. Va. 612), 955. Williamson v. Stevens (82 N. Y. Siipp. 1047), 695. Willi V. Drj'den (52 Mo. 319), 1087. Willington v. Brown (8 Q. B. 169), 942. Willis V. Astor (4 Edw. Ch. N. Y. 594), 1363, 1369. AVillis V. Branch (94 N. Car. 142), 5G5. Willis V. McKinnon (165 N. Y. 612), 952. Willis V. Moore (59 Tex. 628), 482, 1316, 1329. Willoughby v. Atkinson Furn. Co. (93 Me. 185), 820, 895, 1379. Vv illoughby v. Lawrence (116 111. 11), 644, 1068, 1110. Wills V. Gas Co. (130 Pa. St. 222), 641, 643, 644. Wills V. Summers (45 Minn. 90), 1021, 1080. Willy V. Mulledy (78 N. Y. 310), 916. Wilmot V. Smith (3 Car. & P. 453), 537. Wilson V. Been (74 N. Y. 531), 458. Wilson V. Douglas (2 Strobh. S C. 97), 672. Wilson v. Edwards (3 B. & Cr. 734), 798. Wilson V. Gerhardt (9 Colo. 585), 1092, 1093. ■ci- xxx; TABLE OF CASES CITED. [eEFERENCES ABE TO PAGES.] Wilson V. Goldstein (152 Pa. St. 524), 629. Wilson V. Hart (35 L. J. Ch. 569), 740, 769, 77"1. Wilson V. Hatton (L. R. 2 Exch. Div. 336), 785. Wilson V. Hunter (14 Wis. 683), 446. Wilson V. Jones (1 Bush, Ky. 173), G32, 666. Wilson V. Leonard (3 Beav. 373), 1105. Wilson V. Lerche (90 Mo. 473), 958. Wilson V. Lunt (11 Colo. App. 56), 1092. Wilson V. Lyons (94 N. W. Rep. 636), 482. Wilson V. Pa. Trust Co. (114 Fed. Rep. 742), 1240. Wilson V. Phillips (2 Bing. 13), 621. Wilson V. Raybould (56 111. 417), 1186. Wilson V. Sewell (4 Burr. 1980), 1201, 1202. Wilson V. Smith (5 Yerg. Tenn. 379), 922, 953, 1132, 1133. Wilson V. State (39 So. Rep. 776), 1449. Wilson V. Stewart (69 Ala. 302), 1458. Wilson V. Treadwell (81 Cal. 58), 873. Wilson V. Twamler (73 J. K. B. 703), 770. Wilson V. Wilson (2 Vt. 68), 439. Wilson V. Woolfryes (6 M. & S. 341), 953. Wimp V. Early (104 Mo. App. 85). 1453. Winant v. Hines (14 Daly, N. Y. 187), 1207, 1214. Windom v. Stewart (43 W. Va. 711), 869. Windsor Hotel Oo. v. Hawk (49 How. Pr. N. Y. 257), 453. Wineman v. Hug'hson (44 111. App. 22), 1112. Winestein v. Ziglatski-Marks Co. (77 Conn. 404), 483. Winfrey v. Work (75 Mo. 55), 1228. Wing V. Gray (36 Vt. 261), 462, 760, 763. Wingard v. Banning (39 Cal. 543), 1460. Wink V. Early (104 Mo. App. 85), 1318. Winkler v. Gibson (2 Kan. App. 621), 1323. Winn V. Bull (47 L. J. Ch. 139), 388. Winn V. Spearing (26 La. Ann. 384), 877. Winn V. State (55 Ark. 360), 910.. 1283. Winn V. Strickland (34 Fla. 610), 934, 968. Winne v. Hammond (37 111. 99), 1445. Winne v. Kelley (34 Iowa, 339), 879. Winship v. Pitts (3 Paige, N. Y. 259), 713. Winslow V. Bait. & Ohio R. Co. (188 U. S. 646), 1374. Winslow V, Rand (29 Me. 362), 491. Winston V. Academy (28 Miss. 118), 679, 920. Winter v. Dumerque (12 Jur. N. S. 726), 1071. Winterbottom v. Wright (10 Me. & Wei. 109^, 913. Winterfield v. Strauss (24 Wis. 394), 492. Winterink v. Maynard (47 Iowa, 366), 533. AVinton v. Cornish (5 Ohio, 477), 1158, 1342, 1343. Winward v. Robbins (3 Humph. (Tenn. 614), 940. TABLE OF CASES CITED. CCXXXl [referexces are tg pages.] Wisdom V. Newberry (30 Mo. App. 241), 879, 869. Wise V. Decker (30 Fed. Cas. No. 17,906), 560. Wise V. Faulkner (51 Ala. 359), 49i, 492. Wise V. Ffaaf (98 Md. 576), 1113. Wisner v. Ocumpaiigh (71 N. Y. 113), 1408. Wister v. Campbell (10 Phila. Pa. 359), 1238. Withers v. Larrabee (48 Me. 570). 1208. Witherspoon v. Nickels (27 Ark. 332), 1252. Withington v. Nichols (187 Mass. 575), 541. Witman v. Watry (31 Wis. 638), 1199, 1213. Witte V. Quinn (38 Mo. App. 681), 1180, 1182. Witte V. Witte (6 Mo. App. 488), 558. Witty V. Matthews (52 N. Y. 512), 850. Witty V. Williams (12 W. R. 755), 526. Wix V. Rutson (68 L. J. Q. B. 298), 1027, 1030. Wolcott V. Hamilton (61 Vt. 79), 1318, 1319. Wolcott V. Sullivan (6 Paige, Ch. N. Y. 117), 860. Wolf V. Holton (92 Mich. 136), 949. Wolf V. Johnson (3 Miss. 513), 934. Wolf V. Weiner (2 Brewst. Pa. 524), 1180. Wolfe V. Arrott (109 Pa. St. 473), 459, 471. Wolgamot V. Brunner (4 Har. & McH. Md. 89), 547. Wolveridge v. Steward (1 Cr. & M. 644), 1085. Womack v. McQuarry (28 Ind. 103), 1158, 1340. Womble v. Leach (83 N. C. 84), 1418. Wood V. Bogle (115 Mass. 30), 1020. Wood V. City of Williamsburg (46 Barb. N. Y. 601), 685. Wood V. Day (7 Taunt. 646), 953. Wood V. Drouthett (44 Tex. 36.5), 959. Wood V. Hubbell (10 N. Y. 479), 1190, 1352. Wood V. Londonderry (10 Beav. 465), 1116. Wood V. Partridge (11 Mass. 488), 522, 539. Wood V. Sharpless (174 Pa. St. 588), 456, 879, 869. Weed V. Turner (7 Humph. Tenn. 517), 944. Wood V. Welz (167 N. Y. 570), 596. Woodbridge v. Connor (49 Me. 353), 690. Woodbury v. Butler (67 N. H. 545), 489. Woodbury v. Short (17 Vt. 387), 431. Woodbury v. Swan (59 N. H. 22), 957. Woodcock V. Carlson (41 Minn. 542^ 1318. Woodhull T. Rosenthal (61 N. Y. 382), 1048. Woodman v. Railroad Co. (149 Mass. 335), 803. Woodrow V. O'Connor (28 Vt. 776), 1274. Woodruff V. Halsey (8 Pick. Mass. 333), 690. Woodruff V. Oswego Starch Co. (74 N. Y. Supp. 961), 1035. Woods V. Charlton (62 N. H. 649), 1329. Woods V. Cotton Co. (134 Mass. 357), 813. Woods V. Edison Elec. 111. Co. (184 Mass. 523), 456. eexxxii TABLE OP CASES CITED. [refekexces are to pages.] Woods V. Hyde (31 L. J. Ch. 295), 994. Woods V. Naumkeag Mfg. Co. (134 Mass. 357), 782, 816, 822. Woodward v. Gyles (2 Vern. 119), 765. Woodward v. Lindley (43 Ind. 433), 1218, 1226. Woodworking Co. v. Southwick, (119 N. Car. 611), 1250. Woodworth v. Harding (77 N. Y. Supp. 969), 1120. Woodworth v. Thompson (44 Neb. 311), 856. Woolcock V. Dew (1 F. & F. 337), 886. Wooler V. Knott (45 D. J. Ex. 313), 622. Wooley V. Osborne (39 N. J. Eq. 54, 59), 874. Woolley V. Maynes (15 Utah, 341), 1459. Woolley V. Watling (1 Car. & P. 610), 576. Woolsey v. Abbott (65 N. J. Law, 253), 1114. Woolsey v. Henke (125 Wis. 134), 460. Worley v. Frampton (5 Hare. 500), 1395. Worthington v. Ballauf (6 Ohio Dec. 1121), 1101. Worthington v. Cooke (58 Md. 51), 541. Worthington v. Hewes (19 Ohio St. 66), 5G9. Worthington v. Lee (61 Md. 530), 551. Worthington v. Parker (11 Daly, N. Y. 545), 864. Worrill v. Barnes (57 Ga. 404), 1457. Wooten V. Gwyn (56 Miss. 422), 1432. Wootley V. Gregory (2 Y. & J. 536), 1237. Wray v. Rhinelander (39 How. Pr. N. Y. 299), 1276, 1283, 1398. Wray-Austin Mach. Co. v. Flower (12 Det. Leg. N. 214), 1222. Wright V. Bircher (72 Mo. 179), 1405, 1427, 1428, 1434. Wright V. Burroughs (3 C. B. 685), 490, 641. Wright V. DuBignon (114 Ga. 765), 1244, 1256. Wright V. E. M. Dickey (83 Iowa, 464), 1451, 1452. Wright V. Everett (87 Iowa, 697), 76L Wright V. Freeman (5 Har. & J. 487), 439. Wright V. Hardy, Miss. (24 So. Rep. 697), 489. Wright V. Heidorn (6 Ohio, Dec. 151), 616. Wright V. Howard (1 Sim. & Stu. 190), 432. Wright V. Jessup (87 Pac. Rep. 930), 956. Wright V. Kelly (4 Lans. N. Y. 57), 1090. Wright V. Lattin (38 111. 293), 876, 1182. Wright V. MacDonnell (88 Tex. 140), 1265, 1289. Wright V. Newton (2 C. M. & R. 124), 1057. Wright V. Perry (188 Mass. 268), 801. Wright V. Roberts (22 Wis. 161), 1336. Wright V. Tuttle (4 Day, Conn. 313), 599. Wrottesley v. Adams (2 Dyer. 177), 1200. Wander v. McLean (124 Pa. St. 334), 792. Wunderlich v. Reis (34 Hun. N. Y. 1), 1104. Wusthoff V. Schwartz (32 Wash. 327), 1142, 1155, 1170. TABLE OF CASES CITED. CCXXXlll [referexces ake to pages.] Wyatt V. Stagg (5 Bing. N. C. 564), 1197. Wyatt V. Turner (37 Ga. 640), 1404. WyckofE V. Frommer (12 Misc. Rep. 149), 1176. Wyckoff V. Schofield (98 N. Y. 475), 1125. Wyman v. Farrar (35 Me. 64), 428. Wyndham v. Way (4 Taunt. 316), 1259. Wynne v. Haight (27 App. Div. 7), 802, 855. Wyoming Coal Co. v. Price (81 Fa. St. 156), 951. Wyse V. Russell (16 Misc. Rep 53), 1141. T. Yarborough v. Monday (2 Dev. S. C. 493), 332. Yarnall v. Haddaway (4 Har. Del 437), 1466. Yates V. Bachley (33 Wis. 185), 1176. Yates V. Kinney (19 Neb. 275), 139, 312. Yates V. Smith (11 111. App. 459), 1325. 1327. Yaw V. L'eman (1 Wils. 2), 1007. Yeager v. Weaver (64 Fa. St. 425), 695. Yeazel v. White (40 Neb. 432), 1326. Yellow Jacket Silver Min. Co. v. Stevenson (5 Nev. 224), 66. Yesler's Estate v. Orth (24 Wash. 483), 159. Yocum v. Barnes (8 B. Mon. Ky. 496), 599. Yonge v. Bradford (Hob. 3), 20. York V. Carlisle (19 Tex. Oiv. App. 269), 1423, 1432. York V. Jones (2 N. H. 454), 1228. York V. Steward (21 Mont. 515), 697, 1140. Youmans v. Caldwell (4 Ohio, St. 71), 465. Young V. Burhans (80 Wis. 428), 867, 878. Young V. Bransford (12 Lea Tenn. 244), 805. Young V. Collett (6 N. W. Rep. 115), 784, 1151. Young V. Ellis (91 Va. 297), 538. Young T. Gay (41 La. Ann. 758), 313. Young V. Hefferman (67 111. App. 354), 927. Young V. Kimball (23 Fa. St. 193), 1460. Young V. Faul (10 N. J. Eq. 401), 326. Young V. Feyser (3 Bos. N. Y. 308), 1061. Young V. Smith (28 Mo. 65), 155, 182. Young V. Spencer (10 Barn. & Cres. 145), 713. York V. Stewart (21 Mont. 515), 782. Young V. Ward (33 Me. 359), 327. Young V. West Side Hotel Co. (2 Ohio, Dec. 140), 1447. Young V. Wrightson (11 Ohio, Dec. 104), 570. Youngblood v. Enbank (68 Ga. 630), 1264. Younggreen v. Shelton (101 111. App. 89), 679. Z. Zachry v. Stewart (67 Ga. 218), 1412. Zapp V. Johnson (87 Tex. 641), 1454. CCXXXIV TABLE OF CASES CITED, [eefekexces are to pages.] Zarkowski v. Astor (13 Misc. Rep. 507), 1274. Zeiter v. Bowman (6 Barb. N. Y. 133), 590. Zeysing v. Welbourn (4 Mo. App. 352), 1228. Ziegler v. Brennan (75 App. Div. 584), 812. Zigler V. McClellen (15 Oreg. 499), 882. Zink V. Bohn (3 N. Y. Supp. 4), 329, 489. Zink V. Grant (25 Oliio St. 352), 776. Zimmer v. Black (59 Hun, N. Y. 826), 1348. Zinnel v. Bergdoll (9 Pa. Super. Ct. 522), 303. Zouch d. Abbotts v. Parsons (3 Burr. 1794), 1202. ' Zouch d. Ward v. Willingdale (1 H. Bl. 311), 648. Zule V. Zule (24 Wend. N. Y. 76), 539. LANDLORD AND TENANT. CHAPTER I. THE PARTIES TO THE LEASE. § 1. The general rule. 2. Leases by life tenants. 3. Leases by life tenants under a power. 4. The termination of terms created by a life tenant as a landlord. 5. The validity of lease by tenants for years. 6. Guardianship in general. 7. The liability of an intruder as guardian. 8. The power of a guardian in socage. 9. The power of testamentary guardians. 10. The power to lease of a guardian appointed by a court. 11. When the permission of the court to the making of the lease is required. 12. Limitations upon the power of a guardian to lease. 13. The duty of the guardian to lease. 14. The guardian's duty to collect rents. IZ. Formal requisites of the lease. 16. Covenants by guardians. 17. An infant's liability for rent. 18. The ratification of a lease made by an infant. 19. The invalidity of a lease made by a fevie sole. 20. The effect of her marriage upon a lease made by a feme sole. 21. The invalidity of a lease made by a feme covert at the common law. 22. The husband's power at common law to lease lands of the wife. 23. The right of a married woman to lease under the modern stat- utes. 24. The effect of the death of the husband or wife upon a lease made by the wife. 25. The control of the husband over leases held by the wife as ex- ecutrix. 26. The disposition of a term by the husband of a lessee to take effect at his death. 27. Leases of community property. The modern rule as to the relation of mortgagor and mortgagee. 1 28. 2 LAW OP LANDLORD AND TENANT. § 29. The right of the mortsagee to the rent at the common law 30. The appointment and powers of a receiver in foreclosure. 31. The effect of a foreclosure upon the tenant's rights. 32. The right to rents of the purchaser on a sale under foreclosure. 33. The power of the Federal government to lease lands. 34. The validity of leases of lands owned by Indians. 35. Leases by aliens. 36. Leases to aliens. 37. The effect of the death of the lessee on leases for terms of years. 38. The expiration of a lease for years on the death of the lessee. 39. The liability of the personal representative of the deceased lessee of a term of years. 40. The remedies of the personal representative of the lessee. 41. The rights of an executor of a lessor. 42. The liability of a personal representative for rents. 43. The power of an administrator to lease the lands of his intes- tate. 44. The power of an administrator with the will annexed to lease. 45. The general rule as to the power of executor to make leases. 46. A lease which is executed by one of several executors or admin- istrators. 47. A lease by an executrix being a feme sole. 48. The equitable jurisdiction over leases made by executors. 48a. The power of trustees to grant leases. 48b. The proper covenants in leases by trustees. 48c. Signature by one of two or more trustees. 48d. The personal liability of the trustee. § 1. The general rule. As a general rule any person who has capacity to make a valid contract may enter into a lease either as landlord or tenant. This rule is subject to the excep- tions which are recognized by the law of contracts. In the fol- lowing sections we shall enumerate and examine certain parti- cular classes of lessors and lessees, and determine so far as pos- sible the extent of the power to contract so far as the power to contract is limited and defined by the particular facts of each case and the nature of the position occupied by the land- lord or tenant. § 2. Leases by life tenants. A tenant of a life estate may convey all or any portion of his estate by deed or parol lease. If he conveys all his estate it is an assignment of it. If he grants a term for years it is a lease.^ Any lease he may grant, iMcC^mpbell v. McCampbell. 5 Litt. (Ky.) 92; King v. Sharp, 6 Humph. (Tenn.) 55. PAETIES TO THE LEASE. 3 no matter for how long a term of years, is good only for the life of the lessor and terminates with his death. So,, if a per- son has an estate for the life of another he may grant a lease for a term of years which will be good during the life of the cestui que vie but upon his death it is absolutely void even though the lessor in the meantime has acquired the reversion.^ The executor or administrator of a life tenant cannot maintain an action for rent accruing after the death of the life tenant.^ A lease executed by a tenant for life, who was then under age, in which the reversioner is named, if not executed by him is void on the death of the tenant for life. An execution by the reversioner afterwards is not a confirmation of the lease so as to bind the lessee in an action brought on his covenant con- tained in it.* Before the statute 11 George II, c. 19 the execu- tor of a tenant for life who made a lease for years and died before the rent was payable, could not recover rent from the tenant for years. That statute provided that the executors of the tenant for life might recover a proportion of the rent down to the death of their testator. The statute, however did not destroy the right of the reversioner or the remainderman to enter upon the tenant for years for the latter had no more right than his lessor, and the estate of his lessor having terminated by his death the tenant for years was simply a tenant at suffer- ence. If the executor of the tenant for life held over the re- mainderman might either eject him or regard him as his ten- ant and recover for use and occupation. The remainderman has the same rights and remedy against a tenant for years, as against a life tenant holding over on the death of his lessor.' § 3. Leases by life tenants under a power. There is a marked and important distinction between a power to lease created by a will or a deed with a devise of the fee to another and a power to lease which is not expressly created in this man- ner but is merely the outcome of and an incident to the owner- ship of an estate for a limited period with a remainder or revci-- sion in another. In the first case a lease for any term of years not exceeding the limitations placed upon the power in the in- 2 Co. Litt. 476, 6 Co. 15a. Watts, 7 Term Rep. 832, Esp. 501, s Steuber v. Huber, 107 App. Div. 4 R. R. 387. 599, 95 N. Y. Supp. 348. s Co. Litt. 50, 2 Black Com. 145; ■* Ludford v. Barber, 1 Term Rep. Fevans v. Briscoe, 4 H. & J. (iid.) 86, 1 R. R. 56; Doe d. Martin v. 139, 140. 4 LAW OF LANDLORD AND TENANT. strument will be valid and will be binding upon the owner of the reversion; while in the latter ease the lease created by the owner of the limited estate will terminate with the expiration, of the limited estate itself. Hence if an estate be granted to one for life with a power to grant leases for twenty years, his lease for twenty years will be valid and binding upon the re- mainderman though his own interest in the life estate may ex- pire the next day. But if the life tenant is not invested with an express power to grant leases for years he can only grant leases which will be good during his life. Though he grant a lease expressly for a term it will not be binding upon the re- versioner or remainderman after the death of the life tenant. A power to grant leases which shall be valid after the expiration of a life estate is of considerable value, both to the life tenant and to the remainderman or reversioner, for unless the life ten- ant possesses this power he cannot enjoy the use and profits of his estate to the best advantage. If he cannot give long leases it may happen that the premises will remain vacant, waste may occur, and the buildings be permitted to remain out of repair, owing to the fact that it is impossible to procure ten- ants who will accept a lease whose existence is dependant upon the uncertainty of the life of the life tenant. And on the other hand if the life tenant is permitted to give leases for a defijiite term of years which shall be binding on those who follow him in the ownership he will, by the receipt of a larger rent, be encouraged and enabled to keep the build- ings in better repair, and to pay taxes and interest charges, so that in the end his power will not only operate to his own advantage but also to that of his successor. But while the power to grant a permanent lease extended beyond the es.- tate owned by the lessor is to be favored if possible it will never arise by mere implication. It must be expressly con- ferred upon the life tenant or other persons owning the es- tate which is subordinate to the fee simple. A power of a life tenant to make leases at his discretion which shall bind the remainderman after his death, must be strictly pursued. Equity will aid a defective execution of such a power where the circumstances of the case, and the interests of the lessee demand it. But while equity will aid tlie defective execution of a power to grant leases, it will PARTIES TO THE LEASE. D not interpose where there has been no execution of such a power for on general principles if the execution of the power in the life tenant is discretionary, it will leave it to his elec- tion freely to give or to refrain from giving a lease. If he has not executed it, equity will not do for him what he did not see fit to do for himself. The question of the execution by a life tenant of a power to lease, frequently arises between one who has entered under such a lease and the remainder- man. If the lessee can show circumstances which ordinarily would warrant the interference of equity, he will be protected imder his lease from the life tenant, though it may not have been executed in accordance with the express limitations of the power. Thus if the life tenant has given an agreement for a lease which was subsequently to be executed in proper form which has not been done, and the lessee had entered thereunder and had paid rent to the remainderman after the death of the life tenant the lessee will be protected in his pos- session of the premises upon the basis of an estoppel on the remainderman.* § 4. The termination of terms created by a life tenant as a landlord. At the common law upon the death of a life tenant who has made a lease for a term, the lease for the term is at an end irrespective of its length, unless the life tenant has power to lease for a term. The term is not revived as to the remain- derman merely by the acceptance of rent by him.^ The lessee of a tenant for life upon the termination of the life estate of his lessor becomes a tenant at sufferance, of the owner of the fee. He may at once abandon possession as he is not bound to remain as the tenant of the reversioner with whom he has no relation or privity whatever. And if he promptly aban- don the premises he will escape all liability for rent subse- quently accruing whether to the personal representative of the life tenant or to the reversioner.^ The remainderman or 6 Howard v. Carpenter, 11 Md. St. 432, 56 N. E. 199, 48 L. R. A. 259, 283. 735; Lowrey v. Reef, 1 Ind. App. 7 Doe V. Butcher, 1 Doug. 50; 244, 27 N. E. Rep. 626; Miller v. Jenkins v. Church, Cowper, 482; IMainwaring, Cro. Car. 399; Jones Mayhew's Case, I'Coke, 147; Lud- v. Cowper, Willes, 169. ford V. Barber, 1 T. R. 86; Sykes s Hoagland v. Crum, 113 111. V. Benton, 90 Ga. 402, 17 S. E. 365. Rep. 1002; Noble v. Tyler, 61 Ohio b LAW OF LANDLORD AND TENANT. reversioner is not bound to give the lessee of the tenant for life a notice to quit upon the death of the tenant for life. The lessee of a tenant for life is presumed to know the limi- tations upon his landlord's title and the duration of his estate. If the subtenant shall remain in possession after the death of the tenant for life with the consent or acquiescence of the reversioner or remainderman, the latter may recover from him the reasonable value of the use and occupation of the premises for such period as he has been in possession.'' ■ But he may be e-victed by the reversioner after the expiration of the interest of the life tenant under whom he claims. He can- not maintain an action on the imi:)lied covenant for quiet en- joyment against the heirs of his landlord. ^° The tenant of a life tenant has as against the remainderman or reversioner no rights which can be enforced at law.^^ There is no privity of estate or contract between the subtenant and the owner of the fee in remainder. For this and other reasons the subten- ant cannot as against the remainderman remove his buildings or other fixtures on the termination of his lease by the death of the life tenant without the consent of the remainderman.^^ But the subtenant may on the death of his immediate lessor remove any crop which he may have sown during the term This is the rule under the common law principle of emble- ments. And he may enter after the death of the life tenant for the purpose of removing the crop for a reasonable period after the expiration of his term.^^ As to third persons who are not parties to the lease, the subtenant has no title which will enable him to secure damages for their acts in relation to the land. He cannot enjoin a third person from commit- ting waste nor can he recover damages for waste or for tres- pass committed upon the property.^* - » Guthman v. Vallery, 51 Neb. 12 Jones v. Shefflin, 45 W. Va. 824, 71 N. W. Rep. 734. 729, 31 S. E. Rep. 975. 10 Penfold V. Abbott, 32 L. J. Q. i3 Carman v. Hosier, 105 la. 367, B. 67, 9 Jur. (N. S.) 517, 7 L. T. 75 N. W. Rep. 322; Guthman v. Val- 384, 11 W. R. 169; Adams v. Gib- lery, 51 Neb. 824, 71 N. W. Rep. 734. ney, 4 M. & P. 491, 6 Bing. 656, 8 1* Johnson v. Grantham, 104 Ga. L. J. (O. S.) C. P. 242, 31 R. R. 558, 30 S. E. Rep. 781. In West 514. Virginia a yearly term created by 11 Carman v. Mosler, 105 la. 307 a lease executed by a life ten- 75 N. W. Rep. 323. ant runs to the end of the current PARTIES TO THE LEASE. / Though the lease of a life tenant for a term is on his death so far as the remainderman is concerned, absolntely void, it is competent for the subtenant by holding over with the con- sent of the remainderman to make a new lease. The relation- ship of landlord and tenant may, after the death of a life tenant, arise between his subtenant and the remainderman by the acts of the parties. Thus a lease by the widow of the de- ceased owner of real property, who had only a dower interest when she made the lease may be ratified by the heirs of the deceased on the death of the widow.^^ The acceptance of rent by a remainderman and permitting the tenant to make improvements, are not an affirmance of the lease which is absolutely void at the death of the tenant for life.^® So a reversioner by accepting the rent from a subtenant after he comes into possession, does not thereby confirm a covenant for a perpetual renewal so as to make such cove- nant binding on him.^^ Where a lease is determined by the expiration of the estate of the landlord who is a life tenant, and the lessee continues to hold luider the remainderman, pay- ing the same rent, the question whether a new lease has been made, is a question of fact. If the tenant continues to hold under the remainderman, and nothing passes between them except the pajTnent and receipt of rent, the new landlord is not bound by a stipulation in the old lease which is unknown to him, and which is not in accordance with the custom of the country.^^ The fact that the remainderman received rent and sold the premises thereafter with a mention of the lease in the deed, and an exception of the lease in the covenant against encumbrances, and notice was taken of the lease in a subse- quent mortgage, does not prevent the lease from expiring with the interest of the tenant for life.^® The remainderman year in whicli the life tenant Yate v. Church, Cowp. 482; Doe d. dies unless it is renewed by the Jolliffe v. Sybourn, 2 Esp. 667. remainderman accepting the sub- i" Higgins v. Rosse, 3 Bligh. tenant as his tenant. Holden v. 113. Boring, '52 W. Va. 37, 43 S. E. 86. is Oakley v. Monch, 4 H. & C. 15 Martens v. O'Connor, 101 Wis. 251, 35 L. J. Ex. 87; L. R. 1 Ex. 118, 76 N. W. Rep. 774. 159, 12 Jur. (N. S.) 253, 14 L. T. 16 James d. Aubrey v. Jenkins, 20, 14 W. R. 406. Bull. N. P. 96; Doe d. Simpson v. is Doe d. Potter v. Archer, 1 Bos. Bitcker, 1 Doug. 50; Jenkins d. & P. 531. And see Jordan v. Waj-d, 1 H. Bl. 97, 2 R. R. 728. 8 LAW OF LANDLORD AND TENANT. who, on the death of the life tenant assents, either expressly or by necessary implication to the continued occupation of the premises by a subtenant who has taken a lease from the deceased life tenant creates a new tenancy which is either at will or from year to year as the case may be. Before the re- mainderman consents the subtenant is merely his tenant at sufferance. After a new lease is created by the consent of the remainderman he and the subtenant stand towards each other as landlord and tenant. There are then privity of con- tract and privity of estate between them and their relations are regulated by the terms of the new lease which has been made.^° In leasing premises for a long term it is always ad- visable to protect the interests of the lessee where a life tenant has no power to grant leases for a term to have both the life tenant and the reversioner or remainderman unite in the execution of the lease. Of course where the remainderman or the reversioner unites with the life tenant in the execution of a lease as lessors the term does not come to an end with the death of the life tenant during the term. On the death of the life tenant the term continues and the lease at once be- comes the lease of the remainderman or reversioner.^^ The interest which the subtenant has in the term rises out of the successive estates of the lessors as each of them in turn be- comes entitled to the ownership and possession of the prop- erty. So too, a remainderman or reversioner may by his con- duct and declarations made during the life of the life tenant so estop himself that after the death of the life tenant he will be taken and regarded as the lessor of the subtenant.-^ § 5. The validity of leases by tenants for years. A lessee of a term for years may make a lease as to a portion of his term which will make him a lessor. Broadly speaking if he carves out a term less in duration than his own term it is a lease, while if he parts with all his term it is an assignment. This is not always so, and in any case, whether a term created by a lessee 20 Bacon's Abr. "Leases." O. 1; 21 Lake Erie Gas Co. v. Petter- Pennington v. Taniere, 12 Q. B. son, 184 Pa. St. 364, 39 Atl. Rep. 68. 998; Tucker v. Morse, 1 C. & Ad. 22 Simpson v. Butcher, 1 Doug. 365; Martin v. "Watts, 2 T. R. 83; 50. Crune v. Prideaux, 10 East, 187; Collins V. Weller, 7 T. R. 478. PARTIES TO THE LEASE. 9 shall be a sublease or an assignment, depends upon the intention of the parties to the instrument. The importance of determin- ing whether an instrument is a sublease or an assignment arises from the fact that, if it is a sublease, the tenant for years has a reversion however small and may then pursue against his les- see all the remedies at law or in equity tor non-payment of rent and other breaches of condition which a landlord may have against his tenant. And also as is elsewhere fully explained, it is sometimes very important and in fact absolutely essential to determine whether an instrument is an assignment or a sub- lease where the tenant for years is expressly forbidden to assign and sublet or either. If in the instrimient transferring the term the termor reserves rent payable to himself, and a right to re- enter for a breach of condition, the writing, though conveying the whole interest of the termor, would be regarded in law as a sublease, and not as an assignment. Tenants from year to year and tenants for a fixed and certain period less than a year have usually the same power to grant lease less than their term as have tenants for years. Such leases are always subject to be determined by the expiration of the longer term out of which they are granted. From the peculiar nature of their tenancy tenants at will and tenants at sufference are precluded from granting leases which will be of any effect or value as against their lessor. The tenant of a tenant at will is as to tlie original lessor merely a tenant at sufference. whom the owner may oust as a trespasser, without notice to quit, for any alienation by a tenant at will of his term will tenninate the estate at the elec- tion of his lessor. § 6. Guardianship in g-eneral. Several kinds or species of guardians are known to, and recognized by, the law, whose rights, powers and duties differ according to the class to which they belong. They are first, guardians by nature, as the father or mother of the infant ; second by nurture ; third, in socage ; fourth, by will or deed; fifth, by appointment by a competent tribunal, usually a probate court; sixth, volunteer and de facto, as where a person enters upon an infant's land or interferes with his property without claim of right. In such case equity will consider him responsible pro tanto as a guardian. The father of an infant is its guardian by nature until it attains majority, and after his death, during the infant's minority its mother becomes 10 LAW OF LANDLORD AND TENANT. its guardian by nature,-^ until the infant arrives at tlie legal age when it may choose its own guardian. The right of the mother to act as the guardian by nature may be defeated by the will of the father of the infant. "Where both the parents of an in- fant are deceased, the paternal grandfather is the guardian by nature.-* Under the common law the natural guardian has jurisdiction and control only of the person of the infant,-^ find he cannot make a valid lease of the lands of his ward without an order of the court permitting and directing him to do so.-" It has been intimated that perhaps a lease at will made hy him would be good, in the absence of an express disaffirmance thereof by tlie infant when he attained his major- ity.^^ And where the mother, being only guardian by nature of several infants, enters into a lease for a long term of years which is joined in by her eldest child, he being then nineteen years of age, and the lessee builds upon the land and pays the- rent for many years to the infants after they had attained their majority; and where upon all the circumstances the execution of the lease had been very beneficial to the infants themselves, a court of equity, on the application of the lessee, will not hesi- tate to establish and coniirm the lease upon the ground that the infants had so acted that they weie estopped to disaffirm it.^^ zsCapal's Heirs v. McMillan, 8 (N. Y.) 631, 30 Am. Dec. 77; Rex Port. (Ala.) 197; Fields v. Law, v. Inhabitants, 5 Mod. 221; Rex 2 Root (Conn.) 320; Jarrett v. v. Inhabitants, 3 B. & Ad. 714. State, 5 Gill & J. (Md.) 27. The 26 Indian Land & Trust Co., mother is the natural guardian of (Jnd. Terr. 1904), 79 S. W. Rep. an illegitimate child and has a 134; May v. Calder, 2 Mass. 55; right to its control and custody. Anderson v. Darby, 1 Nott & Mc- Copeland v. State, 60 Ind. 394; Cord (S. C.) 369; Ross v. Cobb, 9 Baker v. Winfrey, 15 B. Mon. Yerger (Tenn.) 363. In Texas a (Ky.) 504; Friesner v. Symonds, lease by a natural guardian is 46 N. J. Eq. 521, 20 Atl. Rep. 257. good but a lease of lands by the 24 In re Benton, 92 Iowa, 262; natural guardian of an infant ex 60 N. W. Rep. 614. pires upon the guardian's death 20 Nelson v. Goree's Adm'r, 34 when he is not the guardian of Ala. 565; Capal's Heirs v. McMil- the infant's estate. MaxAA-ell v. Ian, 8 Port. (Ala.) 197; Kendall v. Habon, 22 Tex. Civ. App. 565, 55 Miller, 9 Cal. 591; Kline v. Beebc, S. W. Rep. 1124; Hearne v. Lewis. 6 Conn. 494; Indian Land & Trust 78 Tex. 276. 14 S. W. Rep. 572; Co. (Ind. Ter. 1904). 79 S. W. Porter v. Sweeney, 61 Tex. 213. Rep. 134; Hyde v. Stone, 7 Wend. 27 pigot v. Garnish, Cro. Eliz (N. Y.) 354. 22 Am. Dec. 532; C78, 734. Fonda v. Van Home, 15 Wend. 28 Smith v. Low, 1 Atk. 489 PARTIES TO THE LEASE. 11 § 7. The liability of an intruder as a guardian. A stranger, who as a wrongdoer and without claim of right, intrudes upon the lands of an infant or interferes with his property and re- ceives the rents and profits thereof may be treated by the infant as his guardian, by estoppel ; and he will be held accountable, in equity, for the rent of the lands which he has received, or which he might have received by the exercise of ordinary diligence in renting them.^® The infant may, after he has attained his ma- jority, maintain a bill in equity for the purpose of an account- ing for the rents, after he has recovered the land in ejectment. If the intruder continues in possession after the infant has be- come of ag-e, equity will include this time in the accounting.^" § 8. The power of a guardian in socage. Guardianship in socage is a consequence and outcome of the descent of land held in socage tenure to an infant, and the guardianship de- volves, by the common law, upon the next of kin to whom the inheritance cannot descend.'^ This species of guardianship con- fers more than the control and custody of the person. The guar- dian in socage has absolute control of the lands until the heir attains the age of fourteen, and is entitled to the profits for the benefit of the heir. At the age of fourteen the infant may choose his own guardian, but if he fails to do so, the authority of the guardian in socage continues.^- A guardian by socage has ab- solutely no power or control over the personal property of the ward,^^ but he may lease the real property of the ward in his own name, and this lease will bind the ward to the same extent as though made in the name of the latter.^* In modern times 29 Davis V. Harkness, 6 111. 173, 33 Foley v. Mutual Life In. Co., 41 Am. Dec. 184. 138 N. Y. 333, 34 N. E. Rep. 211; 30 Drury v. Connor, 1 Har. & G. 34 Am. St. 456, 20 L. R. A. 620 (Md.) 220. See, also, Goodhue v. (affirming 64 Hun, 63, 18 N. Y. Barnwell, 1 Rice Ch. (S. C.) 198. Supp. 615). 312 Black. Comm. 88; Co. Litt. 3* Byrne v. Van Hoesen, 5 87b. Johns, (N. Y.) 66; Thacker v. 32 Byrne v. Van Hoesen, 5 Henderson, 63 Barb. (N. Y.) 271; Johns. (N. Y.) 66; Jackson v. De Emerson v. Spicer, 55 Barb. (N. Walts, 7 Johns. (N. Y.) 157; Syl- Y.) 528; 38 How. Prac. 114 (af- vester V. Ralston, 31 Barb. (N. Y.) firmed in 46 N. Y. 594); Galla- S86; Rex v. Oakley, 10 East, 494; gher v. David Stevenson Brewing Rex V. Sherrington, 3 B. & Ad. Co., 13 Misc. Rep. 40, 34 N. Y. 714; Rex v. Manners, 3 Ad. & El. Supp. 94, 25 Civ. Proc. Rep. IOC: 597. Wade v. Baker, 1 Lord Raym. 130; 12 LAW OF LANDLORD AND TENANT. at least as will be subsequently explained, the father has full power to appoint a guardian by his will whose authority on the death of the father will supersede that of the guardian in soc- age. The father of an infant cannot, however, be his guardian by socage as such guardian must be a person M'ho cannot in- herit from the ward.^^ The authority of a guardian by socage to lease, and this is also true of all species of guardians, continues onlj' daring the minority of the ward. And, moreover, if the ward of a guardian by socage on attaining the age of four- teen years elect to enter upon his lands he may repudiate the lease so far as it has still to run.^® The death of the ward ter- minates the lease, and so, also, does tlie death or removal of the guardian by socage. ^^ § 9. The power of testamentary guardians. In England by the statute 12 Car. 2, c 24, all tenures of land with a few ex- ceptions were converted into tenures in socage, and, by the same statute, guardianship in chivalry with all its inconveniences and opportunities for injustice was abolished. It was also pro- vided that the father of any minor, being under the age of twenty-one years and not married at the time of his death, might by a deed or will executed in the presence of at least two witnesses, appoint a guardian of such minor who would have the custody and tuition of the minor until he or she should have attained the age of twenty-one. By the same statute the guard- ian thus appointed was authorized to assume the complete cus- tody and control of all the ward's property, both real and per- sonal; and to manage the same for the use and benefit of the ward until he should have attained his majority, when the guardian must account to him for the property as well as for the rents and proceeds of the same. The testamentary guardian thus appointed had in law the same right to begin actions and take other proceedings for the infant as the guardian in soc- age might do. This statute also enabled the father, who could Rex V. Oakley, 10 East, 491; Hill Bedell v. Constable, Vaughn, 182; V. Saunders, 4 B. & C. 536. Wade v. Baker. 1 Lord Raym. 86 Graham v. Houghtaling, 30 N. 130; Rex v. Sutton, 3 Ad. & El. J. L. 552. Contra by statute in 597. New York, Holmes v. Seeley, 17 't Balder v. Blackborn, Browl. Wend. (N. Y.) 71. 79. 30 Osborn. v. Garden, Plowd. 293; PAKTIES TO THE LEASE. 13 not be himself the guardian in socage to supersede such guard- ian by appointing a guardian for his child by an instrument properly executed. In England it has always been held that a guardian appointed by deed or will possesses the same power and authority as a guardian in socage, and that he may lease the lands of his ward, unless expressly restrained from doing so by the instrument by which he was appointed.^* § 10. The power to lease of a gnardian appointed by a court. A guardian appointed by a court has usually under most of the modern statutes, the power to lease, though it may not be ex- pressly conferred upon him by the statute authorizing the court to appoint him.^^ The possession of this power to lease is in most cases assumed to exist and indeed if not expressly conferred must be implied from the duty which in all the states is incum- bent upon the guardian to secure the greatest possible profit or income from the real property of his w^ard and from his liability for rent in case he fails to use due diligence in doing so. The guardian, in leasing, may reserve the rents either to the ward or to himself and in either case the pa\Tuent of the rent to the guardian and his receipt wdll release the lessee and be binding on the ward.*" So also, a guardian has the power to enter into an agreement with another person permitting the latter to raise a crop on the land of the ward, and to keep two thirds of it, rendering to the infant the balance as rent.*^ In the ab- sence of a permissory statute the guardian has no power to sell land of the ward without recourse to a court of competent juris- diction and obtaining its permission. Hence a guardian cannot lease land for the purpose of developing it by drilling oil wells as the oil, being a part of the land itself is also a part of the corpus of the estate of the ward over which the guardian has no control.*^ 88 Bedell v. Constable, Vaughn, (Md.) 323; Richardson v. Richard- 179; Parry v. Hodgson, 2 Wils. son, 49 Mo. 29; Tracker v. Hender- 129; Shaw v. Shaw, Vern. & son, 63 Barb. (N. Y.) 271. Scriv. 606. The rule would doubt- <« Ross v. Gill, 1 Wash. (Va.) less be the same in this country. 7. Thacker v. Henderson, 63 Barb. 4i Weldon v. Lytle, 53 Mich. 1, (N. Y.) 271. 18 N. W. Rep. 533. 39 Huff V. Walker, 1 Ind. 193; 42 stoughton's Appeal, 88 Pa. Magruder v. Peter, 4 Gill & J. St. 198. 14 LAW OF LANDLORD .\JS^D TENANT. § 11. When the permission of the court to the making of the lease is required. In all cases it is advisable, and in most cases absolutely necessary, to obtain the approval of a court of com- petent jurisdiction to the action of the guardian before he can execute a lease of the laud of his ward.*^ If a statute provides that the guardian may act under the direction of the court,'** or if it clearly requires that he shall apply to the court to sanction his actions in the management of the estate of the ward,'*^ a lease executed without the sanction and approval of the court may be rescinded by the lessee or by the ward.*® So, too, in England, a guardian appointed by the chancellor being, as it were, in the position of a receiver, cannot execute a valid lease without the prior permission of the court of chancery.*^ A court of equity on an application by a guardian for leave to execute a lease of land belonging to infants, will order the exe- cution if the best interests of the infant owners seem to re- quire it. Thus, permission was given to lease property for a term of ninety-nine years, where the lessee was to improve the property at his own expense, with a provision for a readjust- ment of the rent every twenty years, where it appeared that an increase in the rent would result only if betterments were made upon the land. These improvements would of course have to be made by the owners, if the lease were not executed, and the cir- cumstances that some of the infant owners were females, and that this arrangement would give them a fixed income whereas before this the land had been unproductive call loudly to a court of equity to give the relief demanded.*^ . § 12. Limitations upon the power of a guardian to lease. The power of the guardian to lease will not enable him to make a valid lease of the land of his ward for a longer period than 43 Field V. Harrick, 5 111. App. was construed, provided that con- 54 (affirmed in 101 111. 110). servators "shall have the charge 44 Bates V. Dunham, 58 Iowa, of" and "shall manage" the es- 308 12 N. W. Rep. 309. tates of their wards and the court « Huff V. Walker, 1 Ind. 193. held that they might lease the 4c Haskell v. Sutton, 53 W. Va. real property of their wards with- 206, 216, 44 S. E. Rep. 553; Field out the approval of the court. V. Ilerrick, 5 111. App. 54 (affirmed t^ Rex v. Sutton, 3 Ad. & El. 597. in 101 111. 110). Contra, in Palmer '^ Ricardi v. Gaboury, 115 Teun. V. Chesehoro, 55 Conn. 114, 10 Atl. 4S4, 89 S. W. Rep. 98. Rep. 508, where the statute, which P.SJBTIES TO THE LE.VSE. 15 the majority of the ward. But a lease by a guardian for a term extending beyond the term of his guardianship is not void on the ward becoming of age, but is voidable only. Such lease may therefore be confirmed by the ward by parol, or by any act equivalent to an affirmance, such as the receipt of rent by the ward after he is of age." So, a lease by a guardian of an infant under the age of fourteen, for a term of years extending beyond the arrival of the infant at that age may be avoided by another ^ardian chosen by the infant when he attains that age.^*» § 13. The duty of the gn^ardian to lease. A guardian of an infant owning real property has the duty incumbent upon him to lease the same for the best rent that can be procured and if he shall fail to do so he is liable personally for the rent which he might have obtained.^^ In some states it is provided by statute that the guardian cannot himself occupy the lands of his ward, but that he must lease them under the direction of the court. ''^ But the rule is otherwise at common law.^^ A guardian who is a cotenant of land with his ward is liable to him for rent, *o Field V. Heriick, 108 111. 110 114; Van Doren v. Everitt, 5 N. J. Law, 528; Ross v. Gill, 4 Call. (Va.) 250; Bacon v. Taylor. Kir- by (Conn.) 398; Jackson v. O'Rorke (Neb. 1904), 98 N. W. Rep. 1068; Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 150; Putnam v. Ritchie, 6 Paige Ch. (N. Y.) 390; Smith V. Low, 1 Atk. 489; Overbach V. Heermance. Hopk. Ch. (N. Y.) 337; Kitchen v. Lee, 11 Paige Ch. (N. Y.) 107. 50 Snook V. Sutton, 10 N. J. Law, 133. 51 Clark V. Burnside, 15 111. 62; Griffin v. Collins (Ga. 1908), 53 S. E. Rep. 1004; Mudd's Ex'rs v. Reed, 11 Ky. Law Rep. 998; Drury v. Connor, 1 Har. & G. (Md.) 220; Shurtleff v. Rile, 140 Mass. 213. 4 N. E. Rep. 407; Smith V. Gummere, 39 N. J. Eq. 17; In re Kopp, 2 N. Y. Supn. 495, 15 Civ. Pro. Rep. 282; In re Laney's Es- tate, 14 Pa. Co. St. Rep. 4, 2 Pa. Dist. Rep. 800; Hughes' Appeal, 53 Pa. St. 500; Harvin v. Riggs, 1 Rich. Eq. Cases (S. C.) 287; Har- ley V. Deewitt, 2 Hill Eq. (S. C.) 367; Peale's Adm'r v. Thurman, 77 Va. 753. 52 Muller V. Brumer, 69 111. 108. 53 In Louisana a father and the natural tutor or guardian of his minor child who has for several years cultivated land which was the common property of himself and the minor child, will be charged with the yearly rent of a one undivided half which was owned by the child, together with legal interest thereon. The infant cannot be charged with the losses of the cultivation as the relation- ship between the father and child in the land is that of landlord and tenant and it cannot be said that they cultivated it jointly. Succes- sion of Trosclair, 34 La. Ann. 326. 16 LAW OF LANDLORD AND TENANT. thoiigli he may not have used more than his own portion of the land, as it is his duty as guardian to see to it that the land of his ward is made productive.^* He is only the agent or bailiff of the ward, and if he occupy the land of the ward, he becomes thereby the tenant of his ward and he is responsible for the reasonable value of the use and occupation of the land, less the reasonable value of the improvements, if any, made by him.^^ If the guardian does not himself occupy the ward's land he is not liable for an error in judgment in leasing it for a lower rent than could have been obtained by further inquiry where he has acted in manifest good faith and has obtained the approval of the court/'^ § 14. The guardian's duty to collect rents. The guardian may sue in his own, name and usually without joining the ward as a party, for rent which accrues under a lease made by him. He must employ due diligence in collecting the rents promptly as they accrue. If it appears that he did not use proper efforts to collect the rent, the ward can hold him liable for the reason- able rental value of the land.^^ AVhere a guardian allows the administrator of the estate in which his Avard has an interest, to take charge of the real property of his ward, he is liable for the rents up to the time the land was sold to pay decedent's debts.^® § 15. Formal requisites of the lease. The lease of a guardian is valid and will bind the ward though it be made in the name of the guardian individually and delivered as his individual deed.^* It is always advisable that a lease of a guardian shall be in writing but this is by no means indispensable where the statute of frauds does not apply; though, if by statute, a guardian's lease must be in writing, an oral lease is absolutely void."" A 54 Harvey v. Dewitt, 2 Hill Eq. r,8 Coggins v. Fly the. 113 N. C. (S. Car.) 367. 102, 18 S. E. Rep. 96, and to the 05 Taylor v Calvert, 138 Ind. 67, same effect Appeal of Wills, 22 37 N. E. Rep. 531; In re Kopp, Pa. St. 325. 2 N. Y. Supp. 495, 15 Civ. Pro. Rep. so whyler v. Van Tiger (Cal. 282; see, also, Royston v. Royston, 1887), 14 Pac. Rep. 846; Field v. 29 Ga. 82, as to the guardian's lia- Schiefflin, 7 John. Ch. (N. Y.) bility for the improved rent. 150, 11 Am. Dec. 441. scMcElheny v. Musick, 63 111. eo Sawyers v. Zachery, 1 Head 328. (Tenn.) 21. A guardian's stipula- 67 Mudd's Ex'rs v. Reed, 11 Ky. tion in his lease to pay for im- Law Rep. 998. provenients on the land does not PAETIES TO THE LEASE. 17 person who in giving a 1( ase, describes himself as guardian of another will be held personally liable thereon unless something . appears in the contract clearly showing a contrary intent even though the execution of the lease may have been approved by the court.*^^ § 16. Covenants by ^ardians. A guardian cannot covenant so as to bind the property of his ward. Hence if, in executing a lease, a guardian, or other person standing in the position of a trustee, enter into general covenants such as a covenant for quiet enjoyment, he fails to bind the beneficiary or the estate which he represents. The guardian is, however, bound person- ally by such covenants and a.s to him they stand upon the same footing as though the lease had been made by the guardian or other q^iasi trustee in his individual right.®^ A covenant in a lease made by a guardian to renew it at the end of the term, is not binding where by statute the consent of the court is required to a lease executed by a guardian.®^ § 17. An infant's liability for rent. The general rule of law is that an infant can bind himself or his estate for neces- saries. This is so, however, only where he is living apart from his father, and where he is laboring, receiving the profits of his own labor and appropriating them to his own use. In all such cases as the parent whose duty it is to support the infant, is not receiving any of tlie fruits of the infant's industry, the latter will be liable either on his express promise, or the law will imply a promise on the part of the infant to pay for necessaries which have been furnished him.^* In applying the rule the principal difficult}' is to determine what, in the particular case, are neces- saries. Though we are without any direct adjudication upon this question in its relation to the occupancy of real property by an infant, inasmuch as shelter from the extremes of tempera- ture, and protection from the vicissitudes of the weather, are bind the ward. Barrett v. Cocks, Wolfe, 50 Iowa, 286; Sumner v. 12 Heisk. (Tenn.) 566. Williams, 8 Mass. 163; Whitney 61 Nichols V. Sargent, 125 111. v. Dewey, 15 Pick. (Mass.) 428. 209. 17 N. E. Rep. 475, 8 Am. St. 63 Globe Soap Co. v. Louisville Rep. 378. & N. Ry., 27 Ohio C. C. 759. «2 Craddock v. Stewart, 6 Ala. e* Green v. Wilding, 59 Iowa, 77; Chestnut v. Tyson 105 Ala. 679, 13 N. W. Rep. 764, 44 Am. 149, 16 So. Rep. 723; Bloom v. Rep. 696. 2 18 LAW OF LANDLORD ^VND TENANT. prime necessities of hiunan existence without which human life is neither safe nor tolerable, it would seem that the infant would be liable for the rent of premises which he had occupied as a dwelling, whether upon an express contract to pay rent for them or for their reasonable value. The rule is that what are neces- saries for which an infant would be liable is a question for the jury depending on all the circumstances of the case.®^ The prin- cipal facts by which they ought to be guided in their inquiry are whether the articles were suitable to the infant's estate and con- dition and whether he was without the means of supply.®' Thus under this rule the jury may consider, in determining the liability of the infant for rent, the size, character and loca- tion of the premises in question in comparison with his parent's abode, and his own financial condition and usual manner of living, the size of his family if he have a family, and whether or not his parent or guardian is willing and of means sufficient to provide a dwelling place for him. So, too, inasmuch as the husband, though an infant, is liable for necessaries furnished his wife, he would doubtless be liable for rent or for the use and occupation of premises occupied by her as a dwelling^ under such circumstances as would render him liable if he were an adult. ''^ But on the other hand, inasmuch as articles pur- chased by an infant to be used in or to enable him to carry on business are not in law necessaries, he would not be liable for the rent or for the use and occupation of premises occupied by him solely for business purposes.®* 85 Stanton v. Willson, 3 Day essaries belongs to the court or (Conn.) 37, 3 Am. Dec. 255; to the jury. Many cases hold that Swift V. Bennett, 10 Gush. (Mass.) whether articles of a certain class 43G. or kind are such as infants would 06 Davis V. Caldwell, 12 Cush. be liable for, or whether certain (Mass.) 512. kinds of expenditures are neces- 67 As to the liability of an in- saries, must be determined by the fant for his wife's necessaries see court; but whether a particular Cantine v. Phillips' Administra- class is suitable to the condition tor, 5 Har. (Del.) 428; Price v. and estate of the infant is for the Sanders, 60 Ind. 310; Cole v. See- jury. McKanna v. Merry, 61 111. ley, 25 Vt. 220. 177; Garr v. Haskett, 86 Ind. 373; 68 The authorities are not alto- Merriam v. Cunningham, 11 Cush. gether harmonious upon the ques- (Mass.) 40; Henderson v. Fox, tion whether the jurisdiction to 5 Ind. 489. determine what articles are nee- PARTIES TO THE LEASE. 19 § 18. The ratification of a lease made by an infant. Accord- ing to the general rules relating to the making of contracts by infants, a lease executed by an infant is not void but is voidable at the election of the infant on his becoming of age. The lessee of the infant cannot set up the infancy of his lessor to invalidate the lease or to exempt him from the payment of rent.*^^ The in- fant has a reasonable time after his attaining his majority, in Avhich he may elect whether to ratify or to repudiate his lease.'" The ratification cannot be implied. A direct promise to pay rent or an express agreement to ratify the lease is essential. There must be an express confirmation or a new promise, volun- tarily and deliberately made, with a knowledge that there is no existing legal liability on the lease.^^ Subject to these limita- tions and qualifications, an infant who, on reaching his majority, retains land leased to him during his infancy ratifies the lease."- It is not necessary in order to effect a disaffinnance by an infant lessee that he shall place the lessor in statu quo. The infant is not bound to pay or to tender back the benefit or advantage which he has received under the lease.^^ This general rule has not been repealed by a statute which provides that the marriage of any female infant to an adult shall be a discharge of her guardian and that the guardian shall thereupon render his ac- count to the ward. The statute does not release the married woman from the disability of infancy and she may still disaffirm her lease,'* when she subsequently attains her majority. § 19. The validity of a lease at will made by a feme sole. A feme sole may at the common law execute a valid lease of her lands. The marriage of a feme sole does not of itself determine a lease at will made by her as lessor before her marriage, though her husband has the right thereafter to put an end to it. The reason of this is the consideration which the common law has for the rights of the husband for it might be that the lease at 60 Field V Herrick, 108 111. 110, 72 Baxter v. Bush, 29 Vt. 465; 114; Porch v. Fries, 18 N. J. Eq. Robson v. Flight, 4 De G. J. & S. 204,' 209. €08. 34 L. J. Ch. 226, 11 Jur. N. S. 70 Green v. Wilding, 59 Iowa, 147, 11 L. T. 725. 13 W. R. 393. 679, 13 N. W. Rep. 761, 44 Am. t3 Shipley v. Smith, 162 Ind. 526, Rep. 696. 72 N. E. Rep. 803, 804. 71 Turner v. Gaither, 83 N. C '* Shipley v. Smith. 162 Ind. 526, 357, 35 Am. Rep. 574. 72 N. E. Rep. 803, 804. 20 LAW OF LANDLORD AND TEiNANT. will would be for the benefit of the husband when he assumed the ownership of the chattels of the wife. Hence the lease at will of the woman did not determine except by some express declaration or act on the part of the husband evincing his in- tention that it should come to an end,'^ So also, where a feme sole as lessee takes a lease at will, her subsequent marriage is not a determination of the will for though, by the marriage, she at the common law came under the will of her husband the law required some express act on his part before the lease at will was determined."^ § 20. The effect of her marriage upon a lease made by a feme sole. By the common law as we have seen, the husband upon the marriage became entitled absolutely to all the personal property of the wife in possession, as well as to the rents and profits of the real estate owned by her. If she were possessed as lessee of a term of years it became his property during her life. He could sell, forfeit, surrender or otherwise dispose of the term during coverture without her consent,^^ and, if he sur- vived the wife the lease became to all intents and purposes his own by marital right,'^* without the necessity of his taking out administration upon his wife's estate.'^ During the life of the wife, the interest of the husband in a lease for years in which she was lessee was liable under an execution against him.^° If, however, the husband made no disposition of the lease during his life, on his death it went absolutely to his wife if she sur- vived him ; *^ nor could he dispose of the lease by his will because the jus disponendi exists and can operate only during the life of the husband.*^ A woman being possessed as lessee of a term 75 Henstead's Case, 5 Coke, 10; ''^ Doe d. Roberts v. Polgrean, 1 Forse & Hembling's Case, 4 Coke, H. Black. 535; In re Bellamy, El- 64a; Co. Lltt. 55b. tici" v. Pearson, 53 L. J. Ch. 174, 7« Blunden v. Baugh. Cro. Car. 25 Ch. D. 620, 49 L. T. 708, 32 W. 304; Henstead's Case, 5 Coke, 10; ^- 358. Co Litt 55. ^° Bacon, Abr. "Baron & Fem- " Meriwether v. Booker, 5 Litt. "le" C; Co. Litt. 46, 351. (Ky.) 256. SI Co. Litt. 351; Druce v. Benni- es 2 Black. Comm. 432, 433; son, 6 Ves. 394; Moody v. Math- Yonge V. Radford, Hob. 3; Ells- ews, 7 Ves. 183; Wildman v. Wild- worth V. Hines, 5 Wis. 613; Dan- man, 9 Ves. Jr. 177, 7 R. R. 153. iels V. Richardson, 22 Pick (Mass.) '^2 Bracebridge v. Cook, Plowd. 565_ 418; Co. Litt. 300a, b; 351b; Cro. Car. 344. PARTIES TO THE LEASE. 21 for years on marrying- an alien the marriage is not a gift in law of her interest in the term.*' If a woman who is a lessee for years marries, the act of the husband thereafter in taking a new lease for both their lives is in law a surrender of the lease and binding on the wife."* § 21. The invalidity of a lease made by feme covert at the common law. A lease executed by a feme covert of her own lauds during coverture is by the common law, absolutely void, from the execution, and cannot be enforced.^'' In equity how- ever the rule is different for in that jurisdiction a married wo- man upon whom a power to lease lands has been expressly con- fered by will or deed may execute such power without the con- currence of the husband provided, however, that from the instru- ment conferring the power to lease it is clear that the donor of the power intended to exclude the disability of coverture **^ But at the common law the husband is entitled to the receipt and use of the rents and profits of the wife's lands and she cannot by any action on her part which will be binding upon him, di- vest him of them.^^ And it has also been held that in equity the husband acquirea at once upon his entering into an en- gagement to marry an inchoate right to the rents. A con- tract by the woman with whom he has contracted to marrj- exe- cuted between the engagement and the marriage by which, with- out his consent and knowledge she parts with her real property is in equity a fraud upon his rights. The chancellor will set such a contract aside although it would be binding at common law.^* For it is well settled in equity that the concealment from the husband of the execution of a deed conveying her property 83 Theobalds v. Duffoy, 9 Mod. Lord St. John v. Lady St. John, 102, 104, and the wife may sue and 11 Ves. Jr. 526, 531; 1 Black, be sued thereon as a feme sole not- Comm. 444. withstanding her marriage to the so Hearle v. Greenbank, 3 Atk. alien. 695. S4 2 Roll. Abr. 495. «' Den v. Quimby, 3 N. J. Law. 85 Snyder v. Webb, 3 Cal. 83; 985; Baynton v. Finnall, 12 :\Ii?s. Keller V. Klopfer, 3 Colo. 132; Ela 193; Clarke's Appeal, V9 Pa. St. V. Card, 2 N. H. 175; Murray v. 376. Emmons, 19 N. H. 483; De Wolf v. ss Logan v. Simmons, 3 Ired. Eq, IMartin, 12 R. I. 533; see, also, (N. C.) 487, 494; McAfee v. Fer- IManby v. Scott, 1 Mod. 124, 127; guson. 9 B. Mon. Ky. 475; Crane Jennings v. Bragg, Cro. Eliz. 447; v. Morris, 6 Peters (U S.) 598. 22 LAW OF LANDLORD AND TENANT. prior to her marriage by which his rights will be defeated is presumptive fraud, and will be sufScient to convince any equity on his application.^^ The marriage of a single woman who is a lessee under a lease executed prior to her marriage renders her husband liable to all the covenants of her lease.^^ He is thereby responsible for all the rent in arrears at the date of the mar- riage and for all the rent which may subsequently become due during the coverture. He will be liable for the rent even after the death of the wife.°^ And during the coverture the husband and wife may be sued jointly upon any of the covenants of the lease.®^ § 22. The husband's power at common law to lease lands of the wife. The common law from the date of the marriage regarded husband and wife as but one person, and therefore recognizes but one will between them which is placed in the hus- band as the better able to provide for and to govern the family. A distinction however is made by the common law as to the power and control which the husband shall have over the wife's estate between real and personal property, for he has ab- solute control of the personal property so that no act of hers has any force to affect his disposition or control of it.^^ At the common law the husband acquires by the marriage the absolute right to receive the rents and profits of lands owned by the wife. This right continues during the coverture as to all lands owned by the wife which are not settled to her separate use by an in- strument Avhich will be recognized and enforced in a court of equity.^* Hence from this rule it follows that, at the common law, the husband may, during the coverture, execute leases of 89 Ball V. Montgomery, 2 Ves. land v. Myall, 14 Bush. (Ky.) 474; Jr. 194; McAfee v. Ferguson, 9 B. Darnall v. Hill, 12 Gill & J. (Md.) Mon. Ky. 475, 478. lo9; Clapp v. Stoughton, 10 Pick. 00 Anon. 6 Mod. 239. (Mass.) 463, 470; Baynton v. Fin 81 Roll's Abr. "Baron and Feme" nail, 12 Miss. 193; Burleigh v. (G) pi. 1; Anon. G Mod. 239. Coffin, 22 N. H. 118, 53 Am. Dec. i'2 Anon. 6 Mod. 239. 236; Lucas v. Rickerich, 1 Lea. 03 10 Co. 42; 2 Inst. 510; Ba- (Tenn.) 726, 728; Brasfield v. con's Al)r. "Baron and Feme" C. Brasfield, 12 Pickle (Tenn.) 580, i'4 Weens V. Bryan, 21 Ala. 302; 583, 36 S. W. Rep. 384; Shaw v. 307; Bishop v. Blair, 36 Ala. 302; Partridge, 17 Vt. 626; Moore's Ex. Chancey V. Strong, 2 Root (Conn.) v. Ferguson, 2 Munf. (Va.) 421; 369; Hayt v. Parks, 39 Conn. 357; DoKl's Trustee v. Geiger's Adm'r, Davis V. Watts, 90 In-l. 372; Moio- 2 Gratt. (Va.) 98. PARTIES TO THE LEASE. 23 the lands of his wife, not settled upon her as her separate prop- erty and may enforce all his rights as lessor under such leases in an action brought in his name alone without joining that of his wife.''^ He may, however, by an appropriate instrument in writing relinquish to the wife the rents and profits to which he is entitled,"^ in which case they are absolutely free from his con- trol and the wife may then collect the rents from the lessee and give receipts for the same.^'^ This he may also do by his course of action as when, without remonstrance on his part, he permits his wife to collect the rents of her land and apply them to her own use.®® The rents accruing during the life of the wife be- long to the husband and if a tenant not having notice of the marriage pay rent to the wife during coverture, the husband may collect it again. On his death they do not belong to the wife but are assets in the hancU of the personal representative of the husband and may be collected by him.®* On the other hand the husband's personal representative cannot charge the wife for services rendered by the husband in caring for the land of the wife during the coverture or for money expended by the husband for improvements made upon them during that period.^ It is perhaps needless to say that the rules of the common law just stated have been largely and perhaps universally modified and abrogated by modern statutory legislation in the United States. But a statute forbidding the sale of the wife's property to pay the husband's debts and forbidding the husband to sell the wife's lands wdthout her consent does not deprive the hus- band of his right to the rents and profits of her land.^ The rule at common law just stated is applicable to a dower interest held bj' the wife in the land owned by her former husband.^ Upon the death of the husband the wife at common law regains the rights which she had as a feme sole over all her lands remaining 95 Shaw V. Partridge. 17 Vt. on Shaw v. Partridge, 17 Vt. 626, 626, 631; Clapp v. Stoughton, 10 631. Pick. Mass. 470. i Burleigh v. Coffin, 22 N H. 118, 96 See Cheney v. Pierce, 38 Vt. 58 Am. Dec. 236. 515, 524. 2 Brasfleld v. Brasfield, 12 Pickle 97Hayt V. Parks, 39 Conn. 357, (Tenn.) 580, 583, 36 S. W. Rep. 3C1. 384. 98 Leacester v. Biggs, 1 Taunt. ^ Shaw v. Partiidge, 17 Vt. 62C, 367; Cheney v. Pierce, 38 Vt. 515, 631. 524. 24 LAW OF LANDLORD AND TENANT. unsold at his death,* and the same result follows where the wife obtains a divorce a vinculo from the husband.^ § 23. The right of a maiTied woman to lease under the mod- ern statutes. The rules of the common law denying a married woman the powder to lease her lands during coverture have been greatly modified and in most cases entirely abrogated in the United States. Under modern statutes she has in general the same power to take, enjoy and dispose of her property, real or personal, with its rents, issues and profits as though she were a single woman. Hence she may lease her real property and as- sign or sublet any terms for years, which she may own substan- tially to the same extent as though she were unmarried." In many of the states under the local statutory regulations which must in each case be consulted the consent of the husband or his joinder in the lease is still required.'^ In other jurisdictions she may lease without the concurrence of her husband.* So too. under some statutes she may lease her lands to her husband.^ A married woman may without the consent or participation of her husband make a lease of her land for a period not to exceed three years, such lease not being a convey- ance of or incumbrance upon her land within the meaning of a statute which denies her the power to convey or incumber except by deed in which her husband shall join.''' § 24. The effect of the death of the husband or wife upon a lease made by the wife. At the common law the power of the husband to execute a lease of the lands of the wife without her consent and which shall be bindinir on her during the coverture is undoubted. The question arises, Has the husband the power 4 Daniels v. Richardson. 22 sota Gen. Stat. 1858, C. 61, § 108; Pick. (Mass.) 565. Maryland Gen. Laws, C. 45, §§ 1- G Doe V. Brown, 5 Blackf. (Ind.) 3; Rhode Island Gen. Stat. 1857, 309. C. 136, §§ 4-8; Vermont R. S. C. sKnapp V. Smith, 27 N. Y. 277; 65, § 2, C. 71, § 1. Draper v. Stouvenal, 35 N. Y. 512, s Prevost v. Lawrence, 51 N. Y. 7 Reese v. Cochran, 10 Tnd. 195; 219. Den V. Lawahee, 4 Zab. N. J. 613; o Albin v. Lord, 39 N. H. 196; Miller v. Hlne, 13 Ohio, 565; San- state v. Hayes, 59 N. H. 450; ford v. Johnson, 24 Minn. 172; Bank of America v. Banks, 101 Shinn v. Holmes, 25 Pa. St. 142; u. S. 240. Thorndell v. Morrison, 25 Pa. St. lo Pearcy v. Henley, 82 Ind. 129; 326; Peck v. Ward, 18 Pa. St. 506. Shipley v. Smith. 162 Ind. 526, The following statutes amonj; 70 X. E. Rep. 803, 804. others may be consulted: Minne- PARTIES TO THE LEASE. 25 to lease the wife's land for a terra which will extend boyond his own life? In other words would a lease made by the husband of the lands of the wife terminate with his death? It is settled that upon the death of the husband before the wife a lease made by him does not become ipso facto void but the M'ife has the right to reject or accept it. She may repudiate it by a re-entry on the land or she may affirm it by accepting the rent.^^ For if she accepts rent after the death of her husband she will be re- garded as having affirmed the lease. It was also held in an early case that where rent was reserved under the lease of the wife's land made by the husband: and, after the entn- of the less;^e. the husband died before the rent became due, his widow by mar- rjang again became estopped from rejecting the lease where her second husband received the rent. For by her re-marriage the widow was presumed at the common law to have transferred to her second husband aU the power which she possessed as a widow to disaffirm or to accept the lease and for this reason his ratifi- cation of the lease was binding on her.^^ At the common law a lease by the husband and wife of land which she did not own as her separate property was voidable on the death of the wife by her heirs who may enter upon the land and terminate the lease. It is valid, however, until the actual entrj^ of the heirs. But, by a statute ^* the interest in the lease of the lessee was protected by continuing him in possession, preventing the heirs of the wife from taking possession until the end of the term while it was the same time held that they might collect the rent." § 25. The control of the husband over leases held by the wife as executrix. At the common law the husband had con- siderable power over and control of personal property held by 11 Greenwood v. Tyber, Cro. Jac. Saund. 180 note; 1 Roll. Abr. 349 5G3; Doe v Weller, 7 T. R. 478; (Y) pi. 2. Jordan v. Wikes, Cro, Jac, 332, i3 Hill v. Saunders, 2 Bing. 112, Smallman v. Agbarow, Cro. Ja^. 9 Moore 288, 1 Car. & P. 80; see, 417; Brown v. Lindsay, 2 Hill (S. also, 7 D. & R. 17; 4 B. & C. 529, C.) 542; Winstell v. Hehl, 6 Bush. 28 R. R. 375; Bac. Ab.". 302; Co, (Ky.) 58. See, also, Jackson v. Litt. 45b, Mordant, Cro. Eliz. 112. i* Dyer, 159a, Rolle's Abr. 321; 12 Greenwood v. Tyber, Cro. Jac. 1 Bac. Abr. tit. "Baron and Feme," 5C3; Worthington v. Young, 6 6, 498. Ohio, 313; Trout v. McDonald, 83 "32 Henry VIII C. 28, Pa. St. 141; Wotton v. Hele, 2 26 LAW OF LANDLORD AXD TENANT. the wife as executrix.^® lie did not of course take the absolute right to or become the absolute owner in law of any property which she lield when he married her or which she acquired dur- ing the coverture in a representative eapacit}^ The common law did not give him the absolute property in chattels such as leases Avhich she held in autre droit?' The husband might however at the common law grant or demise a lease which she held as an executrix subject to the interest of those whom she represented. Thus, where a wife was administratrix of a former husband and as such was possessed of a term of years as lessee, her second husband had power to grant the term.^^ Upon the death of a wife who is an executrix or administrator no prop- erty in terms of years held by her as such passes to the husband but they devolve upon the administrator de bonis non of the deceased wife.^* A feme sole, at the common law can act as a guardian in socage or by appointment under a statute. By her marriage her husband acquires no authority to possess or con- trol the property of the ward or to receive its rents or profits, and a payment to him on account of the ward, unless with the consent of the wife is not binding either on the guardian or the ward.^" § 26. Disposition of a term by the husband of a lessee to take effect at his death. Though the husband may not be- queath a term which lie holds by his marital right he may dur- ing the coverture grant subleases out of the term to begin after his death which will bind the wife. As he may during cover- ture dispose of the whole term, nothing prevents him from dis- posing of any part of it during the coverture. His irrevocable disposition of a portion of the term during coverture binds his estate at once though it has no operation until his death. This disposition of the chattel differs i-adically from a devise for a devise not being operative until his death comes too late to pre- vent the operation of the rule Avhich on his death at once vests the term in the surviving wife and nullifies the devise. The portion of the term remaining after the sublease by the husband leWankford v. Wankford, 1 Wankford, 1 Salk. 299, 30C; and Salk. 299, 306. Arnold v. Bidgood, Cro. Jac. 31S. 17 Co. Litt. SFila. 10 Co. Litt. 351a. isLevick V. Coppin, 3 Wils. 277; 20 Holmes v. Field, 12 111. 424. 2 W. Bl. 801; See Waukford v. PARTIES TO THE LEASE, 27 on the termination thereof and which he has failed to dispose of belongs to the surviving wife.-^ If, however, the husband dur- ing coverture grants the whole term on condition "^^hich is broken, his executor may enter and the wife though surviving him is barred for there was an absolute conveyance during the coverture, and the breach of the condition was contingent and uncertain. So. too, as the breach happened after the death of the husband the disposition was continuous and unbroken dur- ing his life. On the other hand if the breach occurs during the life of the husband and he re-enters for the breach the status quo is restored and his possession thereafter is precisely the same as it was before. If the wife survive liim she will take precisely as though the disposition never had been made by him. If, however, the husband shall merely charge the term with the payment of a rent and die, the wife is no longer bound because the term itself, not having been disposed of, all intermediate grants end with his life.-- § 27. Leases of community property. In some of the west- ern states an ownership of property by the husband and wife called "community property" is recognized. The decisions are not harmonious on the question of the power of the husband to make a valid lease of the community property. In the state of California the courts hold, in accordance with the law of Mexico from which the California law is derived, that the title to the property held in community is in the husband and for that reason he can dispose of it absolutely as though it were his own. He may sell it ^^ or he may mortgage ^* without the wife's con- sent. That is to say he can transfer or incumber it by a deed signed by him alone. It follows therefore that he may lease the community property for a term of years and collect and use the rents of the same. In AA^ashington the law- is otherwise. In that state the matter is regulated by a statute under which a lease of the community property must be signed by the wife. The stat- ute forbids the husband to encumber the community property. In that state unless the wife joins in the lease of the community 21 Loftus Case, Cro. Eliz. 279. 24 Bernal v. Gleim, 33 Cal. 668; 22 Co. Litt. 4Gb, 351a; Brace- Tolman v. Smith, 85 Cal. 280; bridge v. Cook, Plowd. 418. Earchman v. Byrne, 83 Cal. 23. 23 Fuller V. Ferguson. 26 Cal. 546; Tustin v. Faught, 23 Cal. 237. 28 LAW OP LANDLORD AND TENANT. property, it is void,-'^ and the lessee enjoys no rights thereunder provided he knew the land was community property. It seems under the statute that a tenant who did not know the lease was community property may abandon the land. He must, however, demand a valid lease before he does so and the refusal of the wife to grant it will exempt him from the payment of rent.-* Not only may the tenant refuse to pay rent but he may, after the wife has refused to sign the lease recover damages against her.-^ And if a tenant has entered under a lease signed by the husband only he may procure a specific performance of the lease against the wife where it was executed with her knowledge and consent though not sigTied by her.-^ § 28. The modern rule as to the relation of the mortgagor and mortgagee. In order to understand the position of the tenant of a mortgagor as regards the mortgagee before the con- dition of the mortgage is broken, we must state a general prin- ciple relating to the law of real estate mortgages. By the mod- ern rules of law, and also in equity, a mortgagor in possession of the premises is regarded as the legal owner and the mortgage conveyance is regarded as a security. The mortgage conveys no title to the land. The mortgagee has but a chattel interest and the mortgagor continues to hold the freehold. The mortgagor, being the legal owner and in possession, may lease the land and he and his grantee are entitled to the rents and profits and they may sue the lessee to recover them.-^ A mortgagor has a right to the possession in modem times at least until entry by the 2» Snyder v. Harding, 34 "Wash. 30 Iowa, 26S; Norcross v. Norcross, 236, 75 PaG. Rep. 812. 105 Mass. 265; Miner v. Beekman, 2« Isaacs V. Holland, 4 Wash. 54, 11 Abb. Prac. (N. Y.) 147; 57, 29 Pac. Rep. 976; Tryon v. Da- O'Dougherty v. Felt, 65 Barl). vis, 8 Wash. 106, 35 Pac. Rep. 598. (N. Y.) 220; Mason v. Lenderoth, 2T Dietz V. Winehill, 6 Wash. S8 A. D. 38, 84 N. Y. Supp. 740; 109, 32 Pac. Rep. 1056. Wyckoff v. Scofield, 98 N. Y. 475; 28 Payne v. Still, 10 Wash. 433, Williams v. Beard, 1 S. Car. 309; 38 Pac. Rep. 994. Ihayer v. Cramer, McCord, (S. 29 Jackson v. Lodge, 36 Cal. 28, Car.) Ch. 395; Buchanan v. Mun- 41; Mark v. Witzler, 39 Cal. 247: loe, 22 Tex. 537; Whalin v. White, Elfe V. Cole, 26 Ga. 197; United 25 N. Y. 462. 465; Astor v. Turner, States Bank v. Athens Armory, 11 Paige (N. Y.) 436; Lawrence v. 35 Ga. 344; West v. Adams, 106 Conlan, 28 Misc. Rep. 44. 56 N. Y. 111. App. 114; Priest v. Wheelock, Supp. 345. 59 Ind. 497; White v. Wittemeyer, PARTIES TO THE LEASE. 29 mortgagee or until the premises are sold under a foreclosure. After a breach of the condition his possession, may be terminated at any time by the mortgagee,, though he is not on that account a tenant of the mortgagee. So long as the mortgagor or his tenants are by the mortgagee permitted to remain in possession, whether before or after condition broken, the mortgagor is en- titled to receive the rents and use them for his own account and benefit.^" The law will not imply a contract between a mort- gagor holding over after a default and a mortgagee, that rent or even the reasonable value of the use and occupation of the premises shall be paid.^^ The same rules apply to a deed which is absolute in form and without any defeasance if the purpose of the deed is to secure a debt.^^ The possession which the mort- gagor holds is, according to the above considerations a possession in his own right. It is not a possession as a tenant at suffer- ance of the mortgagee. ^^ It follows therefore that all leases made by him subseqeunt to the mortgage are valid as against the mortgagee down to the sale under foreclosure. Hence, a mortgagee who takes a lease of the mortgaged premises from the mortgagor before condition broken and while the mortgagor is in the actual occupation of the land is a tenant of the mort- gagor.^* A lease by the mortgagee is absolutely void, where under the statute or otherwise, the mortgagor is entitled to possession until foreclosure. The lease confers no right to pos- session.^^ § 29. The rig'ht of the mortgagee to the rent at common law. The common law regards a mortgage in substance and effect as an assignment of the reversion. Thus, a mortgage transfers all the title which the mortgagor had and confers on the mort- gagee the right to enter and hold possession of the estate in the absence of a stipulation that until a breach of the condition the mortgagor should hold possession. The mortgagee having en- 30 Willington v. Gale, 7 Mass. 28-41; Johnson v. Sherman, 15 Cal. 138; Mayo v. Fletcher, 14 Pick. 287. (Mass.) 525, 531; Moss v. Galli- 33 Hopper v. Wilson, 12 Vt. 695; more, 1 Doug. 269, 282. Crippen v. Morrison, 13 Mich. 23; 81 Mayo V. Fletcher, 14 Pick. Kidd v. Temple, 22 Cal. 255. (Mass.) 525, 533; Gibson v. Far- 34 Wood v. Felton, 9 Pick, ley, 16 Mass. 280; Wilder v. (Mass.) 171. Houghton, 1 Pick. (Mass.) 87. ss Connolly v. Giddings, 24 Neb. s2 Jackson v. Lodge, 36 Cal. 131, 134, 37 N. W. Rep. 939. 30 LAW OF LANDLORD AND TENANT, tered is held responsible for the rents and profits of the premises for which he must account to the mortgagor. He must apply them to the payment of the mortgage debt and, if there is a sur- plus, it would have to be paid to the owner of the equity of re- demption.^® "Where the premises are not occupied by a tenant the mortgagee may enter at once and lease them according to the rule of the common law. If the premises at the date of the mortgage are under lease for a term of years the mortgagee can- not disturb the possession of the lessee who has a prior title to his and therefore he cannot enter. But inasmuch as at common law the mortgage is regarded as a conveyance of the reversion the mortgagee may give notice to the lessee of the mortgagor who is in possession under a lease prior to the mortgage, and he will thereafter become entitled to collect the rent due under the lease and which may subsequently become due and also to en- force all the remedies which the mortgagor has and ever had against the tenant.^^ Tenants who have not received notice of the mortgagee who pay rent to the mortgagor are protected.^'^ But rents which are due and payable when the mortgagee re- ceives his conveyance or which become due and payable before he notifies a prior lessee of his right to collect rent, are mere chattel interests or debts due from the tenant to the mortgagor, which are wholly disconnected from the reversion and do not pass by an assignment of it."'^-* The tenant of a mortgagor whose lease is prior to a mortgage by continuing in possession after a notice from the mortgagee to pay rent to him, becomes by im- plication the tenant of the latter, according to the terms of the lease signed by the mortgagor.^'^ The mortgagee cannot however 36 Robinson V. Robinson, 1 N. H. 1 Vt. 457; Newall v. Wright, 3 161; Onderdonk v. Gray, 19 N. J. Mass. 138, 159; Fitcliburg Cotton Eq. 65; Myers v. Estell, 48 Miss. Mfg. Co. v. Melven, 15 Mass. 268, 372; Kellogg V. Rocliwell, 19 Conn. 270; Burden v. Thayer, 3 Met. 446; Harrison v. Wyse, 24 Conn. (Mass.) 79; Miriclv v. Hoppen, 118 1; Reitanbaugh v. Ludwick, 31 Pa. Mass. 282; Moss v. Gallimore, St. 131. Doug. 278, 279. ■■i7 Mansony v. U. S. Bank, 4 Ala. 37a Russell v. Alien, 2 Allen 746; Coker v. Pearsall, 6 Ala. 342; (Mass.) 42. Baldwin v. Walker, 21 Conn. 168, r.Tb Burden v. Thayer, 3 Met. 181; Moore v. Titman, 44 111. 367; (Mass. 79. Russell V. Allon, 2 Allon (Mass.) ^^c Brown v. Story, 1 M. & G. 42, 43; Clark v. Abbott, 1 Md. Ch. 114. 474, 478; Babcock v. Kennedy, PARTIES TO THE LEASE, 31 by giving the prior lessee notice to pay rent to him after con- dition broken compel him to remain as his tenant on the terms of the original lease. Unless the lease has been in fact or in legal contemplation assigned to the mortgagee no privity of con- tract exists between him and a lessee whose lease antedates his mortgage. The lessee may therefore on receipt of notice from the mortgagee surrender possession if he shall do so in a rea- sonable time and he cannot thereafter be held liable for rent ei- ther to the mortgagor, who was his lessor, or to the mortgagee. His payment of rent to the mortgagee is a good defense in an ac- tion by the mortgagor or by the grantee of the reversion.^^ The rules and the rights and liabilities of the parties at common law are very different where a lease is made after a mortgage by a mortgagor who remains in possession by his lessee of the mort- gaged premises. There is in such case no privity of contract or estate between the mortgagee and the lessee who stands in the place of and is subject only to the obligations of the mort- gagor to the mortgagee, of whom rent cannot be collected so long as he is allowed to remain in possession of the premises. Hence until the mortgagee has actually entered or some equiva- lent act has occurred, the mortgagee can maintain no action against the lessee for the recovery of rent except on an express promise to pay."'^ § 30, The appointment and powers of receivers in foreclosure. The rules regulating the appointment of receivers in foreclosure proceedings belong more properly to the subject of mortgages than they do to the topic of landlord and tenant. Some general 38 Smith V. Taylor, 9 Ala. 633; Watts v. Coffin, 11 Johns. (N. Y.) Massachusetts Life Ins. Co. v. 495; Partington v. Woodcock, 5 Wilson, 10 Met. (Mass.) 126; Nev. & Man. 672, 36 E. C. L. Myers v. White, 1 Rawle (Pa.) 41S, 6 Ad. & El. 690, 698; and see, 35.5; Weidner v. Foster, 2 P. & W. also, Peters v. Ellcins, 14 Ohio, (Pa.) 23. 344; Rogers v. Humphreys, 4 Al. 39 Baldwin v. Walker, 21 Conn. & El. 299, 313; Hughes v. Buck- 168, 181; Fitchburg Cotton Mfg. nell, 8 Car. & P. 566; Evans v. Co. V, Melven, 15 ^lass. 268; Field Elliot, 9 Ad. & El. 342; Higgin- V. Swan, 10 Met. (Mass.) 112, botham v. Barton, 11 Ad. & EI. 114; The Massachusetts Hosp. 307; Burrows v. Grandin, 1 Dow!. Life Ins. Co. v. Wilson, 10 Met. & L. 213; Wheeler t. Branscombe, (Mass.) 126, 127; McKircher v. 5 Q. B. 373. Hawley, 16 Johns. (N. Y.) 289; 32 LAW OF IxAJSDLOED AIsD TENAIsT. consideration, however, may be touched upon in this place. In the first place the mortgagee, unless he has stipulated for the rents and profits of the estate, is not entitled to receive them until he has acquired possession. It follows therefore that something more than merely the failure to pay the debt is re- quired to entitle the mortgagee to the appointment of a re- ceiver. Where the mortgagor is insolvent, or where there is danger that the rents wiU be wasted or misappropriated, or the property neglected or wasted during the foreclosure, a receiver of the rents may be appointed. The purpose of the appointment of the receiver is to preserve the subject matter of the litigation. In order therefore that the receiver may be appointed it must be shown that there is a likelihood of the mortgagee suffering a loss. If on the other hand it appears that there is no apparent danger that the mortgagee will suffer if a receiver of the rents is not appointed, the court will not give him this relief. *° If it appears from the circumstances that a receiver ought to be ap- pointed it will be his duty to collect the rents of the mortgaged premises and to apply the net proceeds thereof, after de- ducting the expenses of administration to the payment of the mortgage debt. Notice of the appointment of the receiver should be brought promptly to the tenant's knowledge.*^ A receiver appointed in foreclosure is entitled to collect rents that accrue in the future or which, if they have accrued, are in the hands of the tenant when he receives notice of the receivership. He has no title to, nor can he collect rents from the lessor or owner which the latter has received prior to the appointment of the receiver.*^ And even where a tenant has paid rent in ad- 40 Myers v. Estell, 48 Miss. 372, and there is danger that the rents 406; Meyer v. Thomas, 131 Ala. due from the sub-tenants may be 65, 21 So. Rep. 494; Moritz v. wasted, the court may, in an ac- Miller, 87 Ala. 331, 6 So. Rep. 209; tion to foreclose a lien contained Pcllan.d V. Fertilizer Co., 122 Ala. in the original lease appoint a re- 409, 25 So. Rep. 169. ceiver of these rents. The charac- 41 The right to the appointment ter of the lease and its language of a receiver in an action to fore- creating the lien will always be close a lien for rent created by considered. Mavor v. Northern the lease, would presumably be Trust Co., 93 111. App. 314. based upon the same considera- 42 Howell v. Ripley, 10 Paige tions as are recognized in the (X. Y.) 43; Argall v. Pitts, 7S N. foreclosure of a mortgage. If the Y. 239, 242; Whycoff v. Scofield, tenant has sublet the premises 9S N. Y. 475, 478; Rider v. Bagley, PARTIES TO THE LEASE. 33 vance to the mortgagor before the appointment of a receiver in foreclosure was known to the tenant, the receiver cannot recover the rent from the tenant. ^^ But a receiver may prevent a les- sor from collecting the rents of the premises from the subtenants of the lessee though the latter has paid his rent in advance to the owner of the freehold.** In conclusion it may be said that the tenants may, by the process of the court, be compelled to pay their rent to the receiver and that his right to collect the rent is superior to the rights of the creditor of the mortgagor under a judgment which is rendered after the receiver was appointed.*^ § 31. The effect of a foreclosure on the tenant's rights. Ac- cording to modern theories, a tenant of a mortgagor is entitled to possession as against the mortgagee. There is no privity of contract between the tenant of the mortgagor and the mortgagee by which, before the foreclosure, the tenant owes any duty to the mortgagee; but the sale under a foreclosure which cuts off the equity of redemption destroys all the rights of tenants whose leases were executed subsequently to the mortgage which is fore- closed provided they are made parties to the action.*^ The ten- ants are divested of their estate by the decree and the sale there- under and they are thereafter trespassers, or at the best tenants at sufferance of the purchaser, at the foreclosure sale.*^ A lessee takes the property subject to all rights of a mortgagee whose mortgage is on record at the date of the lease. But the fact that the mortgage gives the mortgagee a right to have a receiver ap- pointed does not destroy any rights which the tenant may have under the lease except that, upon notice to him, he must pay the receiver the rents. *^ And the receiver can collect only such rents as accrue and are not paid to the owner of the equity 84 N Y. 461, 465; Hollenbeck v. Cal. 255; Tucker v. Keeler, 4 Vt. Donnell, 94 N Y. 342. 161; Thompson v. Flathers, 45 43 Hartley v. Meyer, 2 Misc. Rep. La. Ann. 120; Hartley v. ileyer, 2 56, 49 N. Y. St. Rep. 351, 20 N. Y. Misc. 56, 20 N. Y. Supp. 855. Supp. 855. 47 McFarland R. E. Co. v. Jo- 4* Fletcher v. McKeon, 75 N. seph Gerardi Hotel Co., 202 Mo. Y. Supp. 817, 71 A. D. 278. 597, 607, 100 S. W. Rep. 577; Cul- 45Woodwatt V. Connell, 38 111. verhouse v. Wortz, 32 Mo. App. App. 475. 419. 46 0akes v. Aldridge, 46 Mo. 48 Fletcher v. McKeon. 71 A. D. App. 11; Crippen v. Morrison, 13 278, 75 N. Y. Supp. 817. Mich. 23, 35; Kidd v. Temple, 22 3 34 I^VW OF LANDLORD .VND TENANT. of redemption.*^ Any rights which the lessee may have to remove his fixtures, or to recover on a covenant of the lease from his landlord, he will be able to enforce down to the time that the property is sold on the foreclosure. The mere fact that the tenant whose lease was subsequent to the mortgage continues in possession after the mortgagee notifies him of the mortgage and demands rent from him does not constitute him a tenant of the mortgagee in the absence of other circumstances from which a tenancy could be implied.^" § 32. The right to rents of the purchaser at the sale under foreclosure. The mortgagor may collect rents accruing from his tenants down to the day of the delivery of the deed to the purchaser at foreclosure.^^ To protect himself the purchaser, as soon as he receives the deed, should at once notify all the tenants that he claims to receive all rent from them which may thereafter accrue. Usually the decree directs tliat he be let into possession on the presentation of the deed. The title of a pur- chaser on foreclosure is not perfect nor is he entitled to any rent payable in advance until he has fully complied with a di- rection in the decree in foreclosure requiring him to produce to the tenant the deed of the sheriff and a certified copy of an order confirming the sale.^^ Where a judgment in foreclosure provides that the purchaser at the foreclosure sale shall be let into possession upon the production of the deed, he does not ac- quire title, or the right to collect the rents until he receives his deed. The mortgagor up to that time continues to be the owner and may legally collect the rents. Nor can the purchaser sub- sequently recover from him rents which he has collected prior to the delivery of the deed. Neither can he recover rents from the tenants which are payable in advance after the foreclosure sale, unless he shall promptly notify the tenants that he is 49 Wyckoff V Scofield, 98 N. Y. Misc. Rep. 538, 27 N. Y. Supp. 134, 475; Rider v. Bagley, 84 N. Y. 461. 58 N. Y. St. Rep, 11; O'Neill v. 50 Towerson v. Jackson, 61 L. Morris, 28 Misc. Rep. 613, 59 .T. J. B. 36 (1891), 2 Q. B. 484, 65 N. Y. Supp. 1075; Mason v. Lende- L. T. 332, 40 W. R. 37, 56 J. B. 21. roth, 84 N. Y. Supp. 740, 741; As- oiWhalin) v. White, 25 N. Y. tor v. Turner, 11 Paige (N. Y.) 462, 465; Mitchell v. Bartlett, 51 436; Clason v. Gorley, 5 Sandf. (N. N. Y. 447, 451; Peck v. Knicker- Y.) 447. booker Ice Co., 18 Hun (N. Y.) r,2 whalin v. White, 25 N. Y. 462, 183; Cummiugs v. Rosenberg, 6 464. PAETIES TO THE LEASE. 35 the owner." And this rule as to the collection of rents, applies to a case where the mortgagor himself remains in possession after the foreclosure sale. The purchaser on foreclosure may treat him as a trespasser, or as a tenant; but he cannot collect rent from a mortgagor holding over after foreclosure prior to a de- mand on him for possession or for the payment of rent if he de- sires to remain.^* This rule applicable to the mortgagor holding over does not apply however where the mortgage expressly de- clares that the mortgagor shall become the tenant of the pur- chaser at the foreclosure sale. The purchaser may collect rent from the day of the delivery to him of the deed without demand, or notice to the mortgagor holding over."^ § 33. The power of the federal government to lease lands. Express power to lease land for governmental purposes is usually conferred by act of congress upon those federal officials within the scope of whose duties lies the occupation of land. The oc- cupation of land by the federal government, with the consent of the owner and without an assertion of ownership on the part of the United States, raises a presumption that the relationship of landlord and tenant exists between the government and the owner of the land.^® The federal government will then be held liable to pay the owner tlie reasonable value of the use and occu- pation of the land where no rent has been agreed upon between the parties." For the presumption in all such cases is that the 53 David Bradley & Co. v. Pea- titled to rent from that date. If body Coal Co., 99 111. App. 427. the owner has collected rents in 54 North American Trust Co. v. advance, and this was not known Burrow, 68 Ark. 584, 60 S. W. Rep. to the purchaser when he bought, 950. he will be entitled to a rebate 55 GrifiBth v. Brackman, 97 Tenn. upon his bid to that amount. 387, 37 S. W. Rep. 273. "Winfrey v. Work, 75 Mo. 55. In; Massachusetts it has been &« Chills v. United States, 16 held that a mortgagee who enters Ct. CI. 79; Langford v. United on breach of condition may coi- States, 12 Ct. CI. 338. The local lect rent from the tenant in pos law of landlord and tenant is then session and may expel him if he applicable. Clifford v. United does not pay the rent. Stone v. States, 34 Ct. CI. 223. Spofford v. Patterson, 19 Pick. (Mass.) 476. United States, 32 Ct. CI. 452. The purchaser at partition is en- s? Clifford v. United States, 34 tilled to possession from the date Ct. CI. 223, which also holds that of the sale. If a tenant be in pos- proof of the use and occupation session, the purchaser will be en- of the premises by the Federal 36 LAW OF LANDLORD AND TENANT. entry of the federal officials upon tlie land was made with an in- tention on their part of observing the constitutional obligation not to take property without due process of law and that they expected to pay adequate and proper compensation and also that the assent of the owner to the use of the land by the government was given with an expectation on his part that he would re- ceive compensation.^^ Aside from statutory authorization a post- master has no power to bind the United States by a lease of premises for use as a postoffice. But the occupation of premises b}' a postmaster for governmental purposes in connection with the performance of his duties as postmaster may raise an im- plied contract on the part of the federal authorities to pay the owner the reasonable value of the use and occupation of the premises.^^ It has also been held that a lease entered into by an officer of the government for a term of years is obligatory upon the United States only until the end of the fiscal year in which it was made with an option in the government to renew it from year to year until the end of the term specified ; and, if the gov- ernment abandons the premises in the middle of the fiscal year, or at any time during such year, the landlord may recover the rent down to the end of that fiscal year but no longer.^" Nor will the occupancy of the premises after the expiration of such year by a federal official have the effect of continuing the lease, or afford the landlord an opportunity to treat the government as holding over where the occupancy by the official is unauthor- ized.*^^ In order that the United States shall be liable in an ac- tion for the use and occupation of land the use and occupation must have been with the owner's consent. "Where the United government is sufficient to es- igencies of the oHice, and leave tablish the relationship of land- the owner to his remedy in the lord and tenant. courts for compensation on an im- B8 Clifford V. United States 34 plied assumpsit, which would Ct. CI. 223. arise under the constitution C9 Postoffice: "While no con- whenever private property is ta- tract that a postmaster can make ken for public use. Semmes v. for the use of a building can be United States, 26 Ct. CI. 119, dis- binding on the governjnent, as to tinguishing Bradley v. United the time of occupying or price to States, 13 Ct. CI. 166, 98 U. S. 104. be paid, or any other matters co Smoot v. United States, 38 Ct. whatever, he may undoubtedly CI. 418. take possession of any building oi Smoot v. United States, 38 suitable and necessary for the ex Ct. CI. 418. PARTIE.S TO THE LEASE. 37 States in the prosecution of the war of the Rebellion took pos- session of certain promises on land adjacent to that upon which a battle was fought, and used the same as a hospital for sick and wounded soldiers for several months, leaving the premises ulti- mately in a dilapidated and ruinous condition, the owner cannot in the absence of statute recover for their use and occupation. The relation of landlord and tenant does not exist between the parties, as the land was occupied without the consent of the owner. Congress, however, has provided by statute that under certain circumstances the owner of land may be compensated for the use of his land occupied by the government. But the stat- ute does not create the conventional relation of landlord and tenant between the owner and the government or render the latter liable for remuneration for being deprived of the use of the premises during the period he was necessarily occupied in repair- ing the damages done while the army was in occupation.®^ § 34. The va'idity of leases of land owned by Indians. In theory at least the Indians are regarded as the wards of the federal government. It has been held that a state legislature has no power to authorize leases of Indian lands held in reserva- tion.®^ The matter is always regulated by treaty or federal statute. In the absence of treaty or act of congress expressly -conferring power upon Indians who are settled upon raserva- tions to lease their lands, a lease by them of such land, particu- larly to a white person, is void.®* So a note for rent of reserva- tion land cannot be enforced where the leasing of such land is forbidden by act of congress.®^ For it is the general rule that the right of the Indian nations or tribes to their lands within the United States is a right of possession or occupancy only. The title to the fee of the lands occupied by Indians is in the United States and the Indian title cannot be conveyed wholly or in part to any one except to the United States.®® A good and valid «2 Madison Female Sem. v. land from any Indian nation United States, 23 Ct. CI. 1S8, 101. "shall be of any validity in law G3 Buffalo R. & P. Co. V. Lavery, or in equity unless the same is 75 Hun, 396, 27 N. Y. Supp. 443. made by treaty or convention en- 64 Baker v. Jones, 38 Hun (N. tered in pursuant to the constitn- Y.) 625. tion. Cherokee Strip Live-Stock 65 Chaffee v. Garrett. 6 Ohio, 421. Ass'n v. Cass Land & Cattle Co., Act. Cong. July 30. 1834 (U. S. R. 138 Mo. 394, 40 S. W. Rep. 107. S. § 2116) provides no lease of ec Jones v. Meehan, 20 S. Ct. 1, 38 LAW OF LANDLORD AND TENANT. grant of a part of lands owned or occupied by an Indian tribe- or nation may be made to an individual passing to. and vesting in him the fee simple of said lands by the execution of a treaty between the Indian occupants of the land and the United States. The title becomes vested by virtue of the treaty as soon as it goes into operation without the passage of any act of con- gress or the issuance of any patent from any executive depart- ment of the federal government.*^' So also, where by a treaty 175 U. S. 1, 44 Law. ed. 49, citing cases. In the early and leading case of Johnson v. Mcintosh, 8 Wheat. 453, 5 Law. ed. 681, de- cided in 1823, it was held that grants of land northwest of the river Ohio made in 1773 and 1775 by the chiefs of certain Indian tribes to private individuals con veyed no title which could be re- cognized in the Federal Courts and Chief Justice Marshall in de- livering judgment said: "The us- ual mode adopted by the Indians for granting lands to individuals has been to reserve them in a treaty, or to grant them under the sanction of the commissioners with whom the treaty was nego- tiated." The early statute on this topic is act of July 22, 1790, which invalidated the sale of In- dian lands to any person unless Etch sale was made and duly ex- ecuted at some public treaty held under the authority of the United States, 1 Stat, at L. 138. See, also, act of March 1, 1793, 1 Stat. at L. 330, in which it was pro- vided that no purchase or grant of lands, or of any title or claim thereto from any Indians or na- tion or tribes of Indians shall be valid unless the same be made by treaty or convention. This pro- vieion was subsequently re-en- aeted in acts May 19, 179G, chap. 30, sec. 12, and March 3, 1799, sub- stituting for the words "purchase or grant" the words "purchase, grant, lease or other conveyance." See, 1 Stat, at L. 472, 746. This language of the temporary acts of 1796 and 1799 was repeated in- the first permanent enactment upon the subject bein,g the act of March 30, 1802, ch. 13 § 12. 2 Stat, at L. 143. G7 Jones V. Meehan, 20 S. Ct. 1, 175 U. S. 1, 44 Law. ed. 49; citing Mitchell V. United States, 9 Pet- ers (U. S.) 711, 748, 9 Law. ed. 283, 296; Doe d. Godfrey v. Beardsley, 2 McLean C. C. 417, 418; United States v. Brooks, 10' How. (U. S.) 442, 460, 13 Law. ed. 489, 496; Holden, v. Joy, 17 Wall. (U. S.) 211, 247, 21 Law. ed. 523,. 53.j; Best v. Fold, 18 Wall. (U. S.) 112, 116, 21 Law. ed. 805, 807. In construing a treaty between the United States and an Indian tribe or nation in order to ascer- tain whether some stranger to it may claim a valid title to land under it the character of the par- ties to the treaty must be taken into consideration. The fact must be remembered that the ne- gotiations are carried on by fed- eral officials who are skilled in di- plomacy, masters of a written language, understanding the pro- per and technical language em- PiVKTIES TO THE LEASE, 39 between the United States and an Indian tribe' the rights of the nation are extinguished and certain portions of the land which was formerly occupied by the Indians as a tribal reserv^ation are reserved, by the treaty, to certain Indians in severalty as indi- viduals, the individual Indian allottees take the fee simple which is alienable at their pleasure unless the United States has by act of congress or by a provision in the treaty expressly or impliedly prohibited alienation. The reservation to certain indi- vidual Indians is part of the consideration of the cession by the tribe of its right by the treaty. Nor does it follow because be- fore the reser\'ation only the government can purchase from the Indians that after the reservation and creation of absolute indi- vidual rights by and under the treaty and with the consent of the United States the individual reservees cannot alien. The title thus created is property and alienable unless the government has forbidden its sale. And if the property can be sold it can with equal propriety be leased by its individual owner.^^ It is always competent however for congress to provide that land al- lotted to Indians in severalty shall not be alienable. Hence it follows that in a case where by an act of congress reservation lands are alloted to the Indians in severalty, and it is also pro- vided that these Indians shall on recei\ang the lands in severalty ployed to create estates at com- meaning ot the words to lawyers men law and assisted by an in- but the sense in which they terpreter employed by them- would naturally be understood by selves on the oae hand and by In- the Indians. Kansas Indians, 5 dians a weak, ignorant and de- Wall. (U. S.) 737, 760, sub nom.; pendent class of persons, possess- Blue Jacket v. Johnson County ing no written language of their Com'rs, 18 Law. ed. 667; "Wan- Jap- own, usually not familiar with E Ah v. Miami County Com'rs, 18 the language in which the treaty Law. ed. 674; Choctaw Nation v. which they sign is written and United States, 119 U. S. 1, 27, 28, wholly ignorant of legal language 30 Law. ed. 306, 314, 315, 7 Sup. or phraseology even when it may Ct. 75. happen that they have some cs Jones v. Meehan, 20 Sup. Ct. knowledge of English. It follows 1, 175 U. S. 1, 44 Law. ed. 49, af- because of this condition of af- firming 70 Fed. Rep. 453; United fairs that when it becomes neces- States v. Brooks, 10 How. (U. S.) sdry to ascertain the extent and 442, 13 Law. ed. 489; Crews v. character and an interest in land Burcham, 1 Black. 352, 17 Law. ed. which is claimed under a treaty 91; see also Wilcoxen v. Hybar- its language must be construed. ger, 1 Ind. Ter. 135, 38 S. W. Rep. not according to the technical 669, 670. 40 LAW OP LANDLORD AND TENANT. become citizens of the United states and have and enjoy all the rights of such citizens, but the statute forbids the alienation of such lands, a lease of land thus held by an Indian is void.^* A lease of land in Indian Territory by citizens of the United States is valid to all intents and purposes where all the requisites of a valid contract have been complied with. A law of an Indian nation prohibiting the leasing of lands in that territory does not apply to the leasing or holding by citizens of the United States of lands located there. The lessee of such lands being a white man is subject to the general rules of the law of landlord and tenant as if the property were located in any state of the union and to the provisions of the statutes enacted by congress for the government of the territory.^** In unlawful detainer between persons not citizens of the Cherokee nation, a demurrer to the complaint on the ground that it was based on a refusal to pay rent, which was prohibited by law, is without merit as there is no law prohibiting the payment of rent in such territory. Thus a law of an Indian nation requiring all persons, not citizens of the nation owning houses for the purpose of renting them, to dispose of them within a certain time, does not, as between par- ties who are citizens of the United States but not citizens of the Indian nation, invalidate a lease of property held in violation of that law.''^ For it is a general rule that the validity of a con- tract between citizens of the United States which is valid under the laws of the United States and of the state in which it is made cannot be affected by the customs or laws of the Indian tribes in whose territory the contract is execut' d.'^ «9 Beck V. Flournoy Live Stock tween persons not citizens of tlie & Real Estate Co., 12 C. C. A. 497. Cherokee nation, a demurrer to 65 Fed. Rep. 30, 27 U. S. App. 618; the complaint on the ground that United States v. Flourney Live it was based on a refusal to pay Stock & Real Estate Co., 69 Fed. rent, which was prohibited by Rep. 886; Pilgrim v. Beck, 69 law, is without merit as there is Fed. Rep. 895. no law prohibiting the payment 70 Walker Trading Co. v. Grady of rent in such territory. Trading Co., 1 Ind. Ter. 191, 39 ti Walker Trading Co. v. Grady S. W. Rep. 354; In Ellis v. Fitz- Trading Co., 1 Ind. Ter. 191, 39 Patrick, (Ind. Ter.) 64 S. W. Rep. S. W. Rep. 354. 567 this case was cited and ap- 72 Anheuser-Busch Brewing proved and it was expressly held Ass'n v. Bond, 66 Fed. Rep. 633, that in unlawful detainer be- 13 C. C. A. 665. PARTIES TO THE LEASE. 41 § 35, Leases by aliens. At the common law an alien friend may take a fee simple in land though, he has no capacity to hold, for, upon office found, the king takes the land under his preoga- tiveJ^^ The alien may while in possession lease his land and his lease will be valid as against himself. The lessee's interest in and title to the term being founded solely on the title of his alien lessor will be subject to the possibility of termination by a proceeding which terminates the title of the latter, § 36. Leases to aliens. At the common law an alien being a friend might take, hold and transfer personal property to the same extent and with the same power as a citizen. In relation to real estate he was under certain disabilities whicli are not neces- sary to enumerate here. As to the capacity of an alien to hold land under lease under the English law a distinction was made between the lease of a house for the habitation of a merchant, being an alien friend and a lease of premises consisting of mead- ows, pastures, forests or farm lands. His holding of the latter under a lease for a term of years was always subject to office found." He might, however, hold under a lease a house for hab- itation as against all the world for this was necessary and allow- able in favor of trade, for without a dwelling he could not carry OD his trade in the kingdom.'^* But in England by statute it was also provided " that all leases of houses or shops to aliens being artificers or handicraftsmen should be void. The courts, however, in construing this statute, when it was set up as a de- fense in an action to recover rent on a lease were very prone to confine its operation very strictly."^ § 37. The effect of the death of the lessee on leases for terms of years. The interest of lessees in leases for years being at the common law mere chattel interests, though the terms which are created by the leases may be for a thousand years, on the death of the lessee passes to and becomes vested in the executor or admin- istrator of the lessee." For terms for years, unlike leases at will, 72a Co. Litt. 2b. tt Cody v. Quarterman, 12 Ga. 73 Calvin's Case, 7 Coke, 2b. SS6; Schee v. Wiseman, 79 Ind. 74 Co. Litt. 2b. 389; Cunningham v. Baxley, 96 76 32 Henry VIII., c. 16, s. 13. Ind. 367; Lewis v. Ringo, 3 A. K. TeBridgham v. Frontec, 3 Mod. INTarsb. (Ky.) 247; Journe's Siic- '94; Pilkington v. Peach, 2 Show. cession, 21 La. An. 391; Dilling- 135; Jevan v. Harridge, 1 Sid. ham v. Jenkins, 7 S. & M. (Miss.) 308, 2 Keb. 116. 479, 487 (lease for ninety nine 42 LAW OF LANDLORD AND TENANT. not ordinarily terminated by the death of the lessee during the term but survive and pass to his personal representative.'^* It is not material in connection with this rule that a lease for years be expressly given to a man and his heirs or anciently to a sole corporation and his successors as in any case it goes to the les- see's personal representative upon the death of the lessee.'® So, also, a lease to A, his executors, etc., for a j-ear, and so on from year to year for so long as it shall please the lessor and A, his executors, etc., does not expire on the death of A, but on that event happening, vests in his executors.^" A lease for years to one without naming heirs or executors, would by operation of law, in case the lessee dies testate, vest in his executors, and no words of limitation would alter the succession.*^ The personal representative, if there is one, is entitled to notice to years). Webster v. Parker, 42 Miss. 465, 471 (lease for ninety nine years); Faber v. Mc Rae, 56 Miss. 227, 229; Sutter v. Lack- man, 39 Mo. 91; Green v. Green, 2 Redfield Sur. (N. Y.) 408; Doe d. Shore v. Porter. 3 Term Rep. 13, 1 R. R. 626. S. P., James v. Dean, 15 Ves. 241, 8 R. R 171; Murdock v. Ratcliff, 7 Ohio St. 1, Wiley's Appeal, 8 Watts & S. (Pa.) 244; Payne v. Harris, 3 Strobh. Eq. (S. Car.) 39. Contra in McKee v. Howe, 17 Colo. 538, 31 Pac. Rep. 115, where a statute was construed which provided that "real estate" should embrace chat- tels real and all interests in land in fee, for life or for years, and lands, tenements and heredita- ments and all interests therein, it was held that a lease for years was . real property on the death of the lessee and devolved upon his heir and not upon his administrator. See also as to the character of a perpetual lease which in Ohio has been by the statute divested of its chattel qualities and is now de- scendible to the lessee's heirs. Gansen v. Moarman, 5 Ohio S. & C. P. Dec. 287. 7s Alsup V. Banks, 68 Miss. 664, 9 So. Rep. 895, 24 Am. St. Rep. 294, 13 L. R. A. 598; In re Walk- er's Estate, 6 Pa. , Co. Ct. Rep. 515; Charles v. Byrd, 29 S. Car. 544, 8 S. E. Rep. 1. 70 Co. Litt. 46b; Fulwood's Case, 4 Coke, 65a. 80 Mackay v. Mackreth, 4 Dougl. 213, 2 Chit. 461. SI Charles v. Byrd, 29 S. C. 544, 5 S. E. Rep. 1, 4; 1 Wms. Ex. 464. Where a term of years is be- queathed to A. for his life and on his death to his heirs, or to the heirs of his body, the word "heirs" under the rule in Shelly's case is a word of limitation and not a word of purchase. A. under such circumstances takes the whole term as personal property and upon his death it devolves upon his personal representatives. If the rule in Shelly's has been abro- gated by a statute as in most of the states or if from the language of the will it is clear that the testator, In disposing of the term PARTIES TO THE LEASE. 43- quit where such notice is required to be given before tlie lessor can bring ejectment.*"- "Where the defendant in ejectment alleges that notice to quit was not served on the representative he must show that there was a personal representative of the lessee on whom the notice to quit might have been served. It will not be presumed there was a personal representative as he can only exist by appointment by will or by the issuance of letters of ad- ministration. Hence until it be shown that there was an ad- ministrator of a tenant from year to year, service of a notice to quit upon his widow in possession of the premises is sufBcient.^^ § 38. The expiration of the lease for years on the death of the lessee. The general rule that a lease for years upon the death of the lessee devolves as personal property upon his per- sonal representative is of course subject to an exception where the lease is expressly or by implication to terminate by opera- tion of law on his death. If the lessee is the employee of the lessor and his occupation of the premises is a mere incident of the contract of hiring, the occupation will terminate with the death of the servant. The relationship of landlord and tenant under certain circumstances existing between a servant and his employer will therefore terminate on the death of the tenant. Thus, where a church had employed a pastor on a yearly salarj^ together with the use by the pastor of the parsonage as a resi- dence the relationship of landlord and tenant between the par- ties terminates at his death ; and the right of occupancy by the pastor then ceasing, there is nothing to pass to his personal rep- resentative.®* So, an exception to the general rule will be recog- nized where the lessee by the terms of the lease is bound to ren- der service to the lessor about the demised premises which ser%"- ices are personal to the less;'e and which no one besides him- for years intended that "heirs" 82 Roe on dem. of Shore v. Por- should operate as a word of pur- ter, 3 T. R. 13; James v. Dean, 11 chase and not as a word of limi- Ves. 393; Rees v. Perrot. 4 Car. & tation, A., the ancestor, will take Payne, 230. a life estate in the term and his ss Rees v. Perrot, 4 Car. & heir a remainder as a purchaser. Payne. 230. The personal representative of A. s* East Norway Lake N. E. Lu- takes nothing. Williams' Execu- theran Church v. Froislie, 37 tors, 678; Fearne Contingent Rem. Minn. 447, 35 N. W. 260. 490; Doe v. Lyde. 1 T. R. 393; Ex parte Sterne, 6 Ves. 1.56.. 44 LAW OF LANDLORD AND TENANT. self could render. The fact that a tenant of a farm is ex- pressly bound by his lease to see that the land, is Avell cultivated and is fertilized, that no waste is committed, that buildings and fences are kept in good repair and that certain houses are erected in particular places upon the land does not imply that his death shall terminate the term as these are services which any good tenant may perform, either himself or bj^ others whom he may hire for the purpose.'- The ordinary rule above stated does not apply to a lease to a firm or a partnership of a building which is owned by one of the partners for the purpose of carry- ing on the business of the partnership. Under such circum- stances when, by reason of the death of any of the partners the partnership is dissolved, the term is at an end.^^ But where the agreement between the partners provides that the firm shall not be dissolved upon the death of one of the partners, but the per- sonal representative of his estate is to be substituted for him, the rule that the death of a partner terminates the lease does not apply. This provision of the copartnership articles exempting them from the operation of the ordinary in^ile that the death of a partner dissolves the firm, being known to all the parties to the lease will be read as a part of it and as though written in it.8^ § 39. The liability of the personal representative of the de- ceased lessee of a term of years. The personal representative of a lessee for years on the death of the lessee becomes an as- signee of the term. But the executor of a lessee is not liable as assignee until he takes actual possession of the premises. After he takes actual possession he becomes liable for the rent.^* In this respect his character and liability as an assignee or quasi as- signee of the lessee differ very materially from those of an as- signee by contract who is liable for the rent from the date of the assignment whether he takes the possession or not. By tak- ing possession the personal representative becomes liable in his 85 Charles v. Byrd, 29 S. Car. Rt in re Markle's Estate, 17 Pa. 544, 8 S. E. Rep. 1, 4. Co. Ct. Rep. 337, 5 Pa. Dist. Rep. 8" .Johnson v. Hartshorne, 52 N. 47. Y. 172, 177; Doe v. Miles, 1 Stark. ss Ex parte Galloway, 21 Wend. 181; Doe on d. Colnaghi v Bluck, (N. Y.) 32; Howard v. Heln- 8 C. & P. 464, in which the part- erschit, 16 Hun, 177. See, Knick- nership having heen dlssolverl no- erbocker Life Insurance Co. v. tice to quit was dispensed with. Patterson, 75 N. Y. 589, PARTIES TO THE LEASE. 45 representative capacity on the lessee's covenant to pay rent.^' But the personal representative of a deceased lessee who takes possession of and occupies the premises which had been leased to the person whom he represents does not by this action render himself personally liable to the lessor for the rent subsequently accruing under the lease while he is in the occupation of the premises. He is liable personally only for the actual profits of the land or for so much as it is reasonably worth. And for that proportion of the rent payable under the lease which exceeds the profits he is liable only as in his representative capacity out of the estate.^" In any case, however, his personal liability to the lessor does not exceed what the premises yield and he may show what the net profits are in a suit against him personally for the rent brought b}^ the lessor. The law looks upon him as a quasi assignee and he is none the less an assignee because his personal responsibility is less than an assignee in fact.^^ AVhere the personal representative is sued in his representative capacity on a lease which has been signed by his decedent the estate is lia- ble according to the express covenants of contract entered into by the deceased and the representative cannot defend by showing the rental value of the premises is less than the rent agreed to be paid. Where an executor is sued personally as having entered 89 The lessee's administrator Andreae, 61 Law J. Q. B. 630; who does not at once quit and sur- Tiaylor v. Cabanne, 8 Mo. App. render the leased premises on his 131; Remnant v. Brembridge, 2 appointment or on a notice to quit, Moore, 94; 8 Taunt. 191, 19 R. R. but keeps the decedent's property 495. on the premises for several weeks, ^^ Becker v. Walworth. 45 Ohio and claims rent from an under- St. 169, 172, 12 N. E. Rep. 1. tenant which accrued after the The executor of a lessee cannot death of his intestate will be pre- be made liable as assignee of a sumed to have taken possession of term without an entry and an the premises. He is personally li- actual taking possession by him of able to the lessor down to the date the demised premises; but, if he of the service of the notice to quit enter and take possession, he may for the actual value of the use of be made liable as assignee, though, the premises. Inches v. Dickin- by proper pleading, he may limit son, 7 Allen (Mass.) 71, 79 Am. such liability for rent to the yearly Dec. 765. value which the premises might 90 Fisher v. Fisher. 1 Bradf. Sur have yielded, Rendall v. Andreae, (N. Y.) 345; In re Kemp's Estate, 61 Law J. Q. B. 630. 34 Pittsb. Leg. J. 82; Rendall v. 46 LAW OF LANDLORD xVND TENANT. on, and being in possession of, the premises, or where he is sued vHS being the assignee of the term he may plead in defense that he is an executor, that he is without assets and that the prem- ises are of less value than the yearly rent. These defenses must be specially alleged in the answer for the presumption is that the value of the premises is greater than the rent reserved and that he has received or is receiving enough from the land to pay the rent. The plea of the personal representative that the yearly value of the premises is less than the rent agreed to be paid where he is siied as executor and has entered as such will show that he is not personally liable by reason of any excess due from the es- tate but that as executor he is liable only for the amount he has actually received.^^ The plea of an administrator that the prem- ises were of less value than the arrears of rent and that he had paid all the profits he had received from them is not supported by evidence that the deceased had underlet them and that the ad- ministrator had been unable to collect the rent from the under- tenant or by proof that the premises were out of repaii*, where the lease contained a covenant by the deceased to repair the prem- ises.^^ The liability of an executor who takes possession under a lease to his testator on a covenant to repair, contained in the lease is usually personal. He may refuse to take possession but if he 92 Traylor v. Cabanne, 8 Mo. App. him for enforcing a personal lia- 131, 134; In re Galloway, 21 Wend. bility against him. The mere fact (N. Y.) 32; Rubery v. Stevens, 4 that receipts signed by the lessor Barn. & Adol. 241; Wollaston v. acknowledged payments by the ex- Hakewill, 3 Man. & Gib. 297. The ecutor as such does not alone lessor has the right, when the ex- show that the lessor elected to ecutor of the lessee enters upon hold him liable for the rent in the premises to look for his rent that capacity only, where the re- either to the estate or to the ex- ceipts were given thus at the ex- ecutor personally. The remedies ecutor's request so that he might against the estate and against the use them as vouchers in the pro- executor are not inconsistent. bate court and when the insolvency The executor on entering upon the of the estate was unknown to th> premises is in contemplation of lessor when he signed the receipts, law the assignee of the lease and Becker v. Walworth, 45 Ohio St. can avoid personal liability for 169, 173, 12 N. E. Rep. 1. rent only by showing an express o=* Hornidge v. Wilson. 3 P. & D. contract by the lessor to look to 641, 11 A. & E. 645; 9 L. J. Q. B. him as executor only or such con- 72. duct by the lessor as will piec.lude PARTIES TO THE LEASE. 47 does so he must keep the premises in repair where the person under whose rights he claims was bound to do so. So while an executor who has occupied premises held by his testator under a lease with covenants to pay taxes and rent and to keep in repair is liable on the covenant to pay taxes and rents only so far as he has received profits, he is liable for the breach of the covenant to repair to the same extent as any other assignee.^* § 40. The remedies of the personal representative of the lessee. The personal representative of the lessee may usually sue to enforce any express covenant in the lease binding on the lessor. Thus, a personal representative of the lessee may sue to recover damages for trespass on the premises committed by the landlord or any other person before or after the death of the intestate,^^ or he may sue to recover the possession of a life es- tate.^® So, too, the personal representative of the lessee may sue the landlord for damages resulting from a forcible entry by the landlord made at the death of the lessee."^ The personal representative of the deceased lessee is entitled to the possession of the premises for the remainder of the term sub.ject to his obligation to pay the landlord for the use of the same. The per- sonal representative cannot, because he is entitled to the posses- sion, make a parol surrender to the landlord of the unexpired term and take a lea^e to himself personally. The surrender being by parol would be invalid under the statute of frauds. It would also be set aside in equity as a violation of the duty which the representative owes to the estate. It need not be shown that the taking of the lease to himself personally would be beneficial to him, as that will be presumed and the law will not permit him to 91 Tremeere v. Morrison, 4 M. & 96 Cunniiigham v. Baxley, 96 Scott, 603, 1 Bing. (N. C.) 89, 3 L. Ind. 367, 369; Sutter v. Lackman, J. C. P. 260. "The general rule is, 39 Mo. 41. that the executor of a lessee is lia- a^ Smith v. Dodds, 35 Ind. 452; ble as an assignee, except that construing 2 Gav. & H. St. P. 527. with respect to rent, his liability Where the testator at his death does not exceed what the property held land under a lease for a term yields; no such exception applies of years his executor is the proper to the covenant to repair." Tre- person to begin ejectment against meere v. Morrison, 1 Bing. N. C. a trespasser. Duchane v. Good- 89. title, 1 Blackf. (Ind.) 117; Mosher o'Schee v. Wiseman, 79 Ind. v. Yost, 33 Barb. (X. Y.) 277. 389. 48 LAW OF Lu\.NDLOED AND TENANT. obtain an advantage to himself at the expense of the estate which he represents. ^^ A representative of the deceased lessee may execute a valid sub-lease for any period short of the term which devolves upon him by the death of the lessee. The rent which he collects from the sub-tenant is assets of the estate for the purpose of distribution among the next of kin.^^ "While the executor may grant a sub-lease before letters testamentary are issued to him, an administrator cannot do so, nor can he assign the premises until he has received his letters. The authority of the adminis- trator to sublet is derived from his letters of administration, while the authority of the executor is derived from the will in which he is appointed. The issuance of letters testamentaiy to the executor confirms all his acts done prior thereto.^ Any dam- ages which may be recovered against any person by a personal representative of the lessee are personal property of the estate and are assets in the hands of the personal representative to be applied to the paying of debts or to be distributed according to law.^ § 41. The rights of an executor of a lessor. If in the lease the lessor reserve rent to himself by name in the case of a lease for years, the rent will be determined by the death of the lessor during the term. If, however, he shall reserve the rent generally without stating to whom it shall go it will go to his heirs on his death during the term, and in such case the law will make the distribution.^ If the lessor reserve rent to himself, his execu- tor and assigns, and the lessee covenants to pay the executor, tlie lease survives the death of the lessor and the heirs and devisee may sue and recover the rent though it is expressly reserved to the executor. The rather technical character of these rules of the old common law have been modified in modern times. As a gen- eral principle rents which have accrued and become due and 88 Charles v. Byrd, 29 S. Car. i Bank of Hamilton v. Dudley's 544, 559, 8 S. E. Rep. 1. Lessee, 2 Pet. (U. S.) 492, 493. 99 Bacon's Abr. tit. Lease, (1)7; 2 Schee v. Wiseman, 79 Ind. 389, Finch's Case, G Coke, 67b; Inches 392. V. Dickinson, 2 Allen (Mass.) 71, 3 Co. Litt. 47; Plow. 171; Whit- 78 Am. Dec. 765; Bendall v. Sum- lock's Case, 8 Co. 68, 71; Sachere- mersett, 2 W. Bl. 692; Hudson v. rell v. Frogott, 2 Saund. 367; Sury Hudson, 1 Ark. 400; Wankford v. v. Brown, Lutch, 99, 101; Jaques Wankford, 1 Salkeld, 299, 301; v. Gould, 4 Cush. (Mass.) 384, 387. Broker v. Charters, Cro. Eliz. 92. PARTIES TO THE LK.VSE. 49 payable during the lifetime of the lessor, if he is the owner in fee simple of the land, go to his personal representative on his death and are assets in his hands for the payment of debts. It is not material whether the rents are reserved to the lessor alone or whether they are reserved to him and his executors.* But rents accruing subsequently to the death of the lessor are an. in- cident of the reversion and go to the heirs and devisees of the lessor at the death of the lessor. ITie personal representative of the deceased lessor has no title to, nor can he recover from the lessee rents which have acciiied after the death of the person whom he represents.^ The fact that the will of the deceased lessor confers upon his executor a power of sale for the purpose of paying debts or legacies does not confer a power upon the executor to collect the rents which accrue after the death of the testator, or to use them as assets of the estate." For the power in the executor to sell is merely a power in trust and confers no estate in the land on him which entitles him to its possession, or which places him in the position of a landlord, as respects any tenant who may occupy the land. The power of sale is a mere naked power. The land devolves upon the heir or devisee of the lessor subject to be divested by the exercise of the power of sale. Until that takes place the heir or devisee may occupy the land 4 Wells V. Cowles, 4 Conn. 182; 280; Lobdell v. Hayes, 78 Mass. McDowell V. Hendrix, 67 Ind. 513; 236; Bloodworth T. Stevens, 51 Ball V. First National Bank, 80 Miss. 475; Shouse v. Krusor, 24 Ky. 501; Sohier v. Eldredge, 103 Mo. App. 279; Allen v. Van Hou- Mass. 345; Bloodworth v. Stevens. ten, 19 N. J. L. 47; In re Spears, 51 Miss. 475. 89 Hun. 49, 35 N. Y. Sup. 35; Fay 5 Masterson v. Girard's Heirs, v. Holloran, 35 Barb. (N. Y.) 295; 10 Ala. 60; Dixon v. Niccolls, 39 Fleming v. Chunn, 57 N. C. 422; 111. 372, 89 Am. Dec. 312; Foltz v. Haslage v. Krugh, 25 Pa. St. 97; Prouse, 17 111. 487; Dorsett v. Adams v. Adams, 4 Watts (Pa.) Gray, 98 Ind. 273, 275; Kidwell v. 160; Huff v. Latimar, 33 S. C. 255, Kidwell, 84 Ind. 224; Crane v. 11 S. E. Rep. 758; Smith v. Guthrie, 47 Iowa, 542; Shawhan v. Thomas, 82 Tenn. 324: Rowan v. Long, 26 Iowa, 488, 492, 96 Am. Riley, 65 Tenn. (6 Baxt.) 67. Dec. 164; Head v. Sutton, 31 Kan. s Clendenning v. Currier, 6 Gill 616, 3 Pac. Rep. 280; Eastin v. &J. (Md.) 420; Greenland v. Wad- Hatchitt, 15 Ky. L. Rep. 780; Ball dell, 5 N. Y. St. Rep. 835; Watts' V. First Nat. Bank, 80 Ky. 501; Estate. 168 Pa. St. 430, 433, 32 Atl. Stinson v. Stinson, 38 Me. 593; Rep. 26, 36 W. N. C. 372, 47 Am. Mills V. Merryman, 49 Me. 65; St. Rep. 893. Getzandaffer v. Caylor, 38 Md. 4 50 LAW OF LANDLORD AND TENANT. himself or he may lease it to others, reserving and enjoying its rents and profits. This rule applies to a power of sale conferred by a statute upon the executor or other personal representative of a deceased lessor, for the purpose of paying the debts of the decedent.^ So also, an administrator of the deceased lessor can- not by a bill in equity have the rents which accrue and become payable after the death of his intestate from a creditor of the intestate, set off against a judgment obtained by the creditor, against the administrator. The reason of this is that the admin- istrator has no rights in or to the real property or to the profits unless the estate is insolvent.^ The executor of the landlord may sue the tenant for damages caused by a breach of covenant by the tenant which happened during the life of the landlord. 7 Lobdell V. Hayes, 12 Gray (Mass.) 236; Brooks v. Jacken, 125 Mass. 307, 309. s Bullock V. Sneed, 13 Sm. & M. Miss. 293. "The probate court does not necessarily have any ju- risdiction over the rents. The ad- ministrator neither has the right against the consent of the heirs, nor Is he required, to occupy the estate or collect the rents there- from. He may receive the income of the real estate by the request of the heirs, or with their acqui- escence. He would not be re- garded as a trespasser in so do- ing, unless done in opposition to their interests, or in defiance of their wishes. It is often conveni- ent, and sometimes of decided ad- vantage for him to do so; as where heirs are minors without guardians; or are of affairs abroad, or unacquainted with the management of affairs, and where the administrator may be himself an, heir, or have intimate business or family relations with the estate and in other cases. In many cases, there is an understanding or agree- ment, that the administrator shall take the rents, and account for them as assets for the benefit of the estate, where such a course may save the sale of the real es- tate for debts, or where the heirs get the advantage of them on the general distribution. In such case the administrator would account in the probate court for such rents with the general assets according to such agreement, but not neces- sarily by force of any requirements of the statute. Such we believe to be a somewhat common prac- tice." By Peters, J., in Kimball V. Sumner, 62 Me. 305. 310. In Boynton v. Peterborough & Shir- ley R. Co., 4 Cush. (Mass.) 467, the court, by Shaw, C. J., said: "The heir takes the estate accord- ing to the well-known rule of in- heritance, at the time of the de- cease of the ancestor, subject only to be divested by a sale, pursuant to law, conducted in the manner prescribed by statute. All the le- gal consequences of this relation are held to follow. The heir is the owner until he is divested; he has the exclusive possession and right of possession; he may take the rents and profits to his own use and without account." P.VRTIES TO THE LEASE. 51 This nile applies to all covenants entered into by the tenant, unless the covenant is expressly in favor of the heir of the land- lord, in which case, only the heir can sue; or nnl&ss the covenant is a mere personal contract, the benefit of which dies with the person of the landlord. This rule has been applied to breaches ■of a covenant to repair occuring during the life of the landlord.^ § 42. The H'ability of a personal representative for rents. If the personal representative of a deceased lessor takes pos- session of tlie lands of his decedent, and occupies them for his own use or leases them and retains the rents he must pay the heirs or devisees the rental value of the lands.^" They may re- cover the rents from him in an action at law,^^ and in equity he ■will be regarded as a trustee for the heirs and devisees to the ex- tent of the money which came into his hands from the rents of the premises.^- But where the personal representative is an heir of the decedent and he collects the rent it will be presumed that he collected it as an heir and he cannot be compelled to account for it to the next of kin/'' A personal representative who collects the rents has no right or duty to account for them to the next of kin in making up his account. He is not chargeable on his ac- counting but he is personally liable to the heirs at law for money received and in equity as a trustee for those who by law are en- titled to receive the rents of the real property of the person he represents." If the personal property is insufficient to pay the 9 Raymond v. Fitch, 2 C. M. & 20 S. E. Rep. 431; Jones' Appeal, R. .588; Kingdon v. Nottle, 1 M. & 3 Grant Cases (Pa.) 250; Robb's Sel. 355; King v. Jones, 5 Taunt. Appeal, 41 Pa. St. 45. 518, 1 Marsh. 107; Ricketts v. is Schwartz' Estate, 14 Pa. St. Weaver, 121 M. & W. 718, 723, 13 L. 42. J., Ex. 195. 1^ Smith v. King, 22 Ala. 558; IP Henderson v. Simmons, 33 Goodrich v. Thompson, 4 Day Ala. 291, 70 Am. Dec. 590; In re (Conn.) 215; Eppinger v. Canepa, Misamore's Est., 90 Cal. 169, 27 20 Fla. 262; Hendrix v. Hendrix, Pac. Rep. 6; In re Holderbaum's 65 Ind. 329, 331; Evans v. Hardy, Est., 82 Iowa, 69, 72, 47 N. W. Rep. 76 Ind. 527; Head v. Sutton, 31 898; Stearns v. Stearns, 1 Pick. Kan. 616. 3 Pac. Rep. 280; Hen- (Mass.) 157; Shuffler v. Turner, derson's Succession, 24 La. Ann. Ill N. C. 297, 16 S. E. Rep. 417. 435; Lewis v. Carson, 16 Mo. App. 11 Brooks V. Jackson, 125 Mass. 342; Lucy v. Lucy, 55 N. H. 9, 10; 307, 309; Gibson v. Farley, 16 Griswold v. Chandler, 5 N. W. 492; Mass. 280. Stagg v. Jackson, 1 N. Y. 206; i2Autrey v. Autrey, 94 Ga. 579, Fisher v. Fisher, 1 Bradf. (N. Y.) 52 LAW OF LANDLORD jVKD TENANT. debts, or if tlie estate is insolvent, the personal representative may sell the land for the purpose of paying debts ; but until that time the heirs are entitled to receive the rents and profits, and the mere fact that the personal estate is insolvent does not author- ize the administrator or executor to collect the rents.^^ And an administrator who, without the consent of the widow of the de- ceased, leases land which had been assigned to her for her dower, will be liable to her personally for the rents which he has re- ceived under the lease.^" § 43. The power of an administrator to lease the lands of his intestate. An administrator, as such, has ordinarily no power to execute leases of the real property of his intestate though where an administrator is permitted by the heir to lease land whether for the purpose of paying the debts of the deceased, or meeting the expenses of administration or for any other proper and legal purpose, the heir will be estopped from subsequently questioning the validity of the action of the administrator.^^ For an administrator may, with the 355; Campbell v. Johnson, 1 Sandf. Ch. (N. Y.) 148; Floyd v. Herring, 64 N. C. 409; Conger v. Atwood, 28 Ohio St. 134, 22 Am. Rep. 462; Carlisle's Appeal, 38 Pa. St. 259; McCoy v. Scott, 2 Rawle (Pa.) 222; Jewell v. Jewell, 11 Rich. Eq. (S. C.) 296; Stockwell v. Sargent, 37 Vt. 16. 15 Kimball v. Sumner, 62 Me. 305; Gibson v. Farley, 16 Mass. 283; Boynton V. Peterborough, etc., Co., 4 Cush. (Mass.) 467, 469; Pal- mer V. Palmer, 13 Gray (Mass.) 326; Stearns v. Stearn, 1 Pick. (Mass.) 157; Newcomb v. Steb- bins, 99 Mass. 616, 617. 16 Boyd Y. Hunter, 44 Ala. 705. A statute which requires an ex- ecutor or an administrator who uses any part of the rral estate, to account for the income of the same in the probate court means that he shall accoun't for the rents only to such persons to whom they belong. He must account for them to the heirs or devisees unless they expressly or by necessary im- plication agree that the rents shall be applied with other assets to pay the legacies, the debts and the expenses of administration. Brooks V. Jackson, 125 Mass. 307, 310. Where by a statute an adminis- trator has power to rent the lands of his decedent it would seem rea- sonable that he should account for the rents received as assets and in a court of probate. See, Bon- durant v. Thompson, 15 Ala. 202; Smith V. King. 22 Ala. 558. 17 Crowder V. Shackelford, 35 Miss. 320, 359; Ashley v. Young, 79 Miss. 129, 29 So. Rep. 822; Stearns v. Stearns, 1 Pick. (Mass.) 157; Choate v. Arrington, 116 Mass. 552; Brent v. Chipley, 104 Mo. App. 645, 78 S. W. Rep. 270. See, also. Jackson v. O'Rorke (Neb. 1904), 98 N. W. Rep. 1068. PARTIES TO THE LEASE. 53 knowledge of the heirs and without their dissent rent the lands of his intestate for the purpose of paying the debts of the estate and the rent is then assets in his hands for that purpose.^^ In some states it is expressly provided by statute that an executor or administrator may rent or sell lands for the purpose of paying the debts of the deceased person whom he represents.^' Such a lease is not likely to be of much value or to meet with favorable consideration from a prospective tenant. It is in some cases pro- vided that an administrator's lease shall be terminated with his ofi&ce.^®^ And in all cases where the execution of a lease by an administrator is in question it is ver^^ advisable, if not indispen- sable, for the protection of all parties, to secure the approval of the court having jurisdiction of the estates of decedents to the execution of the lease by the administrator.^" § 44. The power of administrator with the will annexed to lease. Inasmuch as a power to sell or to lease lands conferred upon an executor by the will is a special power in trust which indicates and is based upon some special trust or confidence which the testator had and reposed in the executor personally it is a general rule that such special testamentary power to sell or lease does not devolve on an administrator with the will annexed. So far as leasinu- the property of the testator is concerned the administrator with the will annexed has such powers only as are conferred upon an administrator by statute.-^ In some of the states by express statute the administrator with the will an- nexed possesses and may exercise all powers which might have 18 Ashley v. Young, 79 Miss. 129, Ga. 461; Hall v. Irwin, 7 111. 176; 29 So. Rep. 822. Owens v. Cowan, 7 B. Mon. (Ky.) 19 Palmer v. Stiner, 68 Ala. 400. 1.52; Brown v. Hobson, 3 A. K. isaBurbank v. Dyer, 52 Ind. Marsh. (Ky.) 380, 13 Am. Dec. 187; 392; Smith v. Park, 31 Minn. 70. Montgomery v. Milliken, 9 Miss. 20 Bank V. Dudley, 2 Pet. (U. S.) 49.5; Brush v. Young, 28 N. J. L. 492; Roe v. Summerset, 2 W. Bl. 237; Naundorf v. Schuman, 41 X. 692. See, also, Brent v. Chipley, J. Eq. 14, 2 Atl. 609; Dominick 104 Mo. App. 645. v. Michael, 4 Sandf. Ch. (X. Y.) 21 The following cases refer only 374; Gilchrist v. Rea, 9 Paige Ch. to a power of sale conferred on the (X. Y.) 66; Brain v. Mattison, 54 executor by the will but by anal- X. Y. 663; Dunning v. Ocean Bank, ogy they would doubtless be ap- 61 N. Y. 497; Ferebee v. Proctor, 2 plicable to a testamentary power Der. & B. (X. C.) 439; Moody v. to lease laads: Lucas v. Price, 4 Vandyke, 4 Binn. (Pa.) 31; :Moo- Ala. 679; Lockwood v. Stradley, 1 dy's Lessee v. Filmer, 3 Grant Del. Ch. 298; Harker r. Smith, 7 Cas. (Pa.) 17. 54 LAW OF LANDLORD AKD TENANT. been exercised by the executor including a power to sell the land of the testator.-- § 45. General rule as to the power of executors to make leases. As a general rule and speaking broadly, it may safely be said that in the absence of an express direction in the will creating in the executor some power over the real estate of his testator an executor has no interest in or control over the real property of the testator which will enable him to execute a valid lease of the same.-^ In Michigan it has been held that an executor's lease for two years of the real estate of his testator, which he has taken possession of and occupied with the consent of the heirs or devisees, though void as a lease for two years, under a statute allowing an executor to lease the real property of his testator "from year to A^ear," is valid as a lease from year to year.^* Inasmuch as the legal title to land undisposed of by will is in the heir alone an administrator cannot sue a tenant at will of his decedent for rent in the ab- sence of any contract of renting between the administrator and the tenant.'^ § 46. A lease which is executed by one of several executors or administrators. One of several executors having power to lease may execute a lease which will be valid and binding on all of them though by the will creating the power to lease the power is in express words confen^ed upon all the executors.-® So, a 22 Kidwell V. Brummagim, 32 tive has the power to rent or Cal. 436; Dilworth v. Rice, 48 Mo. to sell the lands for the purpose 124; Sandifer v. Grantham, 62 of paying the debts of the de- Miss. 412; Hester v. Hester, 2 ceased and where in the exercise Ired. Eq. (N. C.) 330; Creech v. of this power he claims the rents Grainger, 106 N. C. 213; 10 S. E. which have accrued after the Rep. 1032; In re Still's Estate, 2 death of the decedent he may re- Pa. Dist. Rep. 105, 12 Pa. Co. Ct. cover the same as his title to the Rep. 379, 31 W. N. C. 252. rents is the same as to any other 23 Hankins v. Kimball, 57 Ind. chose in, action. Palmer v. 42; Rutherford's Heirs v. Clark's Steiner, 68 Ala. 400. Heirs, 4 Bush. (Ky.) 27; Ely v. 24 Grady v. Warrell, 105 Mich. Scofield, 35 Barb. (N. Y.) 330; In 310, 63 N. W. Rep. 204. re Hillard's Estate, 8 Luzon Leg. 25 Cummings v. Watson, 149 Reg. (Pa.) 237; Bruer v. Hayes, Mass. 262, 21 N. E. Rep. 36.G. And 10 Ohio Dec. 583. The rule of the compare, Howard v. Patrick, 38 text has been modified by statute Mich. 795. in some states. Thus where by a 20 Chandler v. Ryder, 102 Mass. statute the personal representa- 268; Bunner t. Storm, 1 Sandf. TARTIES TO THE LEASE. 55 lease for years may be assigned by one of several administrators so as to bind the others.-^ But where by a statute the majority of several executors named must join in the execution of a con- tract a lease signed by one is not valid as to the others. Nor can such a. lease signed by one of two or more executors be re- garded as binding on the others upon any presumption that the executor who signed acted as their agent when its term exceeds one year and the statute requires that the authority of an agent to make a lease for more than one year shall be in writing.-' The rule is that where a term for years is specifically bequeathed it will on the death of the testator vest in the executor for the purposes of administering the estate. The legatee will acquire title through the executor and not directly from the testator. The legatee has no right to enter or to demand or receive the rents until the executor has given his assent to the bequest or has accounted and turned the term over to the legatee. Hence a person who proposes to take an assignment of the lease from the executor or to whom the executor proposes to sublet ought to ascertain whether or not the latter has assented to the bequest for if he has his power over the term is at an end. The lega- tee must be consulted and if he does not agree to the new tenant or assignee he may eject him by judicial proceedings.^® § 47. A lease by an executrix being a feme sole. At the com- mon law the power of a feme sole who was also an executrix to lease a term as a feme sole is terminated by her marriage and thereafter her husband must be the lessor in all leases which she desires to make in her representative capacity.'" AVhether she Ch. (N. Y.) 387; Ogden v. Smith, when done by one only without the 2 Paige Ch. (N. Y.) 195; Doe v. concurrence or knowledge of the Hayes, 7 Taunt. 222; Simpson v. others. The rule is different as Gutteridge, 1 Madd. 609, 617 (as- to the torts of one executor and as signment of a lease); Hayes v. to acts of the executors, which Sturges, 7 Taunt. 217. It is a could not lawfully be done by all. very old an/d well recognized rule 2- Lewis v. Ringo, 3 A. K. of the common law that a release, Marsh. (Ky.) 247. surrender of a term, the confes- 2s Utah Loan & Trust Company sion of a judgment, an attorn- v. Garbutt, 6 Utah, 342. 23 Pac. 758. ment of one executor and any 29 Doe v. Guy. 4 Esp. 154; .John- other lawful act which all the ex- son v. Warwick. 17 C. B. 516, Fen- ecutors may lawfully do, will be ton v. Clegg, 9 Ex. 680. binding and conclusive on all «o Arnold v. Bidgood, Cro. Jac ub LAW OF LANDLORD AND TENANT. joins with him or not in the execution of the instrument does, not affect its validity at the common law.^^ § 48. The equitable jurisdiction over leases made by execu- tors. Leases which have been made by the personal represen- tative though they be valid in law, may, under some circum- stances, be set aside in equity on the application of interested parties. In order that a lease made by an executor may be valid, it must appear that the lease was made by him in order to se- cure a due and proper administration of the property of the deceased person whom he represents. Hence, if a lease is made by the personal representative which is clearly improvident and unprofitable to the persons who take the estate of the deceased it may be annulled in equity on application of the persons who have been prejudiced by the action of the personal representa- tive in making the lease.^^ If the lessee is not responsible for the waste committed by the personal representative, and particu- larly, where he had entered upon the premises and made im- provements, equity may decree that he should receive compensa- tion so far as the next of kin were benefited by what he had con- tributed. So, also, if a lease made by a personal representative is tainted with fraud on his part to the prejudice of the benefi- ciaries of the estate, the latter may have it set aside in equity.^' So, generally if a sale of the land of the decedent be necessary to enable the personal representative to pay legacies and debts of the estate, or, if under all the circumstances a sale is more bene- ficial to the legatees than a lease, the latter, when made by a per- sonal representative, may be set aside in equity and a sale may be ordered.^* § 48a. The power of trustees to grant leases. A trustee in whom is vested the legal estate may grant leases for reasonable times and at reasonable rents where the term of the lease does not exceed the duration of the legal estate in the trustee.^^ In 318; Levick v. Coppin^ 2 W. Bl. ss Keating v. Keating, Loyd v. 801. Gov. Co. temp. Sugd. 613. 81 Leviclf V. Copin, 2 W. Bl. 801; 34 Drohan v. Drohau, 1 Ball & B. 1 Piatt on Leases, 3G8; Wood- 185. fall, Landlord and Tenant, 51, 52. 35 Hutcheson v. Bennefield (Ga. 32 Margrave v. Archibold, 1 1902), 42 S. E. Rep. 422; Geer v. Dow P. C. 107. Traders' Bank, 132 Mich. 215, 93 N. W. Rep. 437, 9 Det. Leg. N. 578. PARTIES TO TUE LE.VSE. 57 some states the permission of the court is required before the trustee can lease property. For example, in the state of Xew York b}^ statute a trustee may lease real estate during the life of the beneficiary for a term not to exceed five years without ap- plication to the court but if a tei^m exceed that limit he must se- cure the permission of the supreme court.^^ As a general rule a trustee has no power to make a lease which was extended be- yond the term of his trust.^^ A trustee, unless expressly author- ized to do so by the person who has created the trust has no power to make leases extending beyond the term of the trust. If the trust estate is terminated by the death of the beneficiaiy or by his marriage or by his attainment of his majority or by the happening of any event which has been designated by the creator of the trust as working its termination the lease becomes ipso facto void.^* If the rule were otherwise it would be possible for a trustee by granting long leases, or by making leases with covenants of renewal, to deprive the person on whom the legal title will devolve at the termination and expiration of the trust term of the possession and beneficial enjoyment of the property. The person in whom the legal interest would devolve would take it encumbered with outstanding leases and have tenants thrust upon him without his choice whom he could by no means get rid of until the termination of their terms. The same rule would apply where the trust instrument provides that on the happen- ing of the event which terminates the trust the trustees shall convey the trust estate to a person designated. A lease entered into by the trustee during the existence of the trust does not last until the estate is in fact conveyed. It terminates at the same instant as the trust estate and a formal conveyance of the trust estate by the trustee is unnecessary and is usually dis- pensed with.?® Very often powers to lease in express language are inserted in trust deeds or in wills creating trusts. Ajid where there is a power to grant leases for twenty years a lease by the trustee for any period short of the twenty years is 36 Weir V. Barker, 93 N. Y. Supp. 31 N. Y. Supp. 206, 208; In re Mc- 742. Caffrey, 50 Hun, 371, 3 N. Y. Sup. 37 In re Armory Board. 29 Misc. 96. 174, 60 N. Y. Supp. 882. 94 N. Y. 39 Watlcins v. Reynolds, 123 N. St. Rep. 882, 30 Civ. Pro. Rep. Y. 211, 25 N. E. Rep. 322. 38 Gomez v. Gomez, 81 Hun, 566, 58 LAW OF LANDLORD AND TENANT. valid.^" So. a. power to lease for any time not to exceed twenty- one years Avill authorize a lease for twenty-one years which is detenninable at the option of the lessee at the expiration of a less number of years.*^ To state the rule concisely any lease by a trustee for a term which is less than the term permit- ted to be made by a power vested in him is valid though it may exceed the duration of the trust. But the power to lease for twenty-one years or to make building, and repairing leases for sixty-one years will authorize a lease for forty years containing the usual covenant by a tenant to repair.*^ § 48b. The proper covenants in leases by trustees. In the absence of anj^ instructions contained in the instrument creat- ing the trust prescribing what conditions or covenants shall be inserted in the lease, any covenants may be inserted in leases by trustees which are consistent with the general intention of the creator of the trust and which do not prejudice the interest of the beneficiary or of the person who takes the legal interest after the trust has terminated.*^ There ought, however, always to be a covenant by the lessee to pay the rent. If this be not inserted an assignment of the lease by him will prevent the col- lection of rent in case the term created by the lease shall extend beyond the term of the trust. There ought always to be a coven- ant providing for a re-entry upon the breach of a condition by the lessee so that the remainderman may be protected as well as the trustee. A trustee cannot, unless expressly authorized to do so by the terms of the trust insert covenants of renewal in the lease. His covenants for a renewal though perhaps binding on him during the trust term will not bind those who take the prop- erty after the expiration of the trust.** The trustee will him- 40 Isherwood v. Olclknow, 3 M. & tinf? trustees to lease, it was held S 382. that the trustees might execute a 41 Edwards v. Milbank, 4 Drew. lease for a much longer term than 606, 29 L. .T. Ch. 45. the period during which the trust 42 Easton v. Tratt, 2 H. & C. 676. w^ould exist. Marsh v. Reed, 184 In a case where the circumstances 111. 263, 56 N. E. Rep. 306. affirm- of the property, its location and ing 64 111. App. 535. the conditions surrounding the 43 Goodtitle v Finucan, 12 Doug. estate generally, were such that a 575. court of equity could see that tho ■'■' Gomez v. Gomez, 31 N. Y.. interest of the beneficiary of the Supp. 200, 81 Hun, 5G0. trust would * e favored by permit- TARTIES TO THE LEASE. 59 self be personally liable on the covenant for quiet enjoyment.*'' A trustee whose sole power is to receive the rents and profits, sell the land and invest the proceeds has no power to lease.*' § 48c. Signature by one of two or more trustees. A lease for a term of years signed by one only of several trustees in whom the title to the property is vested is invalid. Such a lease is an important and material act vrhere the making of it was essential to carry out the trust contained in the instrument under Avhich the trustees were appointed and inasmuch as it required an exercise of judgment and discretion should have been parti- cipated in by all the trustees. The signature of one trustee does not bind the others nor will there arise an implication of agency in the case of trustees which might perhaps be recognized in the case of joint tenants or partners. Doubtless one of several trus- tees may under some circumstances, be entrusted by his asso- ciates with the business of the trust as their agent. This rule, however, will not apply to such acts as a trustee ought to as- sume the responsibility for and which properly require a de- liberate exercise of the will and judgment of all of them. Nor will a lease which is invalid because not signed by all the trus- tees become valid by the acquiescence or subsequent recognition of its existence by the other trustees who have not signed it. The trustees may sign at different dates and the lease will bind all as soon as all have signed. But until all have signed it is no lease and if it purports to lease a term of years it will be in- valid under the statute of frauds. This being the case, mere silence or recognition vnW not validate it for it is, at most, only a lease at will where the lessee has gone into possession.*'^ § 48d. The personal liability of the trustee. The instrument of lease will not be invalidated merely because it does not refer to the power though it is always fitting and advisable that it should do so. In case the right to grant a lease of the character in question does not exist by reason of any interest which the lessor may possess aside from the power the intention will be 45 Chestnut v. Tyson. 105 Ala. 47Winslo'^ v. Baltimore & Ohio 149, 16 So. Rep. 723. Railroad. 188 U. S. 646. 23 S. Ct. <5 In re Hoysradt, 45 N. Y. Supp. 443, 47 Law. ed. 635, reversing 18 841. 20 Misc. 265, 79 N. Y. St. Rep. App. D. C. 438. 841. 60 LAW OF LANDLORD AND TENANT, presumed to execute the power on his part.*^ If the lessor has an interest and estate in the land as well as a power and the in- strument does not clearly indicate whether he means to make the lease by virtue of his estate or by virtue of his power and it is immaterial whether the lease shall operate by the power or by the estate of the lessor it will then be presumed that the lessor intends not to execute the power but to grant the lease out of his own estate or interest. If, however, a lease created by a lessor who has both an estate and a power will be invalid if re- ferred to an intention to grant a lease out of the estate and valid if refen^ed to an intention on his part to execute the power it will be by implication referred to an intention to execute a lease under the power and not under the estate or interest. Trustees ■who execute a lease in their individual names, and in the body of the lease covenant to pay the rent without using any language showing an intention to bind the beneficiary, are liable person- ally on the covenant to pay rent although in the caption of the lease they are described as "trustees of" an organization men- tioned. The word trustees is merely descriptio personarum and the court will not receive parol evidence to show the intent of the parties.** 48 Pitcher V. Daniel, 12 Rich. (S. « Stohie v. Dills, 62 111. 432, 438. Car.) Eq. 349. CHAPTER IL CORPORATION LEASES. § 49. The common law power of corporations to grant leases. 50. The common law rule as to the power of a corporation to be- come a lessee. 51. The form .of corporation leases. 52. The necessity for seal on a corporation lease. 53. By what officer a corporation lease should be executed. 54. The period for which a corporation lease may run. 55. When leases are ultra vires. 56. The effect of the dissolution of a corporation upon an existing lease. 57. The power of municipal corporation to grant leases, 58. A municipal corporation as a tenant. 59. Ultra Vires leases by municipal corporatioms. 60. Leases of park grounds by municipal corporation. § 49. The common law power of corporations to grant leases. At the common law a private corporation which by express grant or by necessary implication has power to o\^ti and control real estate may grant leases thereof and receive and use the rents of the same in aU cases where the granting of the lease is proper or necessary to enable the corporation to carry on its business, or to carry out the purposes and object of the corpo- ration.^ The power and capacity of the corporation in this re- spect are the same as though it were an individual. It is usually advisable to ascertain if tlie corporation has charter power to 1 Phillips V. Aurora Lodge, 87 etc., 14 Abb. Pr. (N.Y.) 209; Den- Ind. 505; Dubuque v. Miller, 11 ike v. N. Y. & Rosedale Co., 80 N. Iowa, 558; Crescent City Wharf, Y. 599; Rives v. Dudley, 3 Jones etc., Co. v. Simpson, 77 Cal. 286, 19 (N. C.) Law, 126; Baltimore, etc., Pac. Rep. 426; New Orleans v. Guil- Co. v. McCutcheon, 13 Pa. St. 1; lotte, 14 La. Ann. 875; Phillips v. Co. Litt. 44a; Attorney General v. Eastern Railway, 138 Mass. 122; Moses, 2 Madd. 308; Spendlomes Taylor v. Carondelet, 22 Mo. 203; v. Burkitt, Hob. 7; Bunny v. State V. Flavell, 24 N. J. Law, 370; Wright, 1 Leon, 59; Featherston- Nicoll V. N. Y. Cent. R. R. Co., 12 haugh v. Lee, M. P. Co., L. R. 1 N. Y. 121; Matthews V. Mayor, Eq. 318. 62 . LAW OP LANDLORD AND TENANT. lease. But it is not always necessary that an express authority to lease the real estate of a corporation shall be conferred upon it by its articles of incorporation. The circumstances of the par- ticular case may be such that a lease will be valid without ex- press charter authority. For if a corporation is in such a condi- tion that it cannot continue its operations successfully, and is in failing financial circumstances, it may lawfully lease its entire property, though it may not be expressly authorized to do so.- So also the trustees of a corporation who by its charter are vested with the control of its property may lease the same as an assem- bly room when the premises are not being used by the corpora- tion itself.^ But a lease which by its operation suspends the ordinary business of the corporation may be absolutely void and is unquestionably so where a statute provides that the suspension of the business of the corporation for a specific period shall work a forfeiture of all the rights, privileges and franchises of the corporation.* § 50. The common law rule as to the power of a corporation to become a lessee. It is undisputed that a corporation -whether lay or ecclesiastical, aggregate or sole, at the common law" pos- sessed the implied power to take and hold real property under a lease from its owner so far as it is necessary to do so to carry out the purposes for which it was incorporated. The right to hire premises which are necessary to the cariying on of the business of the corporation is a power which is inherent to every corporation. So thoroughly is this recognized that the question is hardly ever raised.^ If a corporation has actually used and occupied land as a lessee which is necessary for its business, and 2 As to the statutory power of been held that a lease to a corpo- a water company to lease its prem- ration in another state was valid, ises to another water company see Black v. Delaware & R. Canal Co., Moore v. Chartiers Valley Water 22 N. J. Eq. 130. The charter Co., 216 Pa. St. 467, 6.^ Atl. Rep. power to erect and maintain docks 936. confers by implication the power 3 Phillips V. Aurora Lodge, I. O. to lease such docks after their G. T., 87 Ind. 'jO'>. erection. Smith v. Berndt, 1 N. Y. 4Conro V. Port Henry Iron Co., Supp. 108. 12 Barb. (N. Y.) 27. In conetru- s Blanchard v. Warner, 1 Blatch. ing an express statutory power (U. S.) 258; Jesus College v. conferred upon a corporation to Gibbs, 1 Y. & C. 145; Lowe v. lease its property to a company London R. R. Co., 14 Eng. L. & "in this state or otherwise" it has E. R. 10. CORPORATION LEASES. 63 wliieli has been occupied for the carrying on of the corporation business, with the consent of the owner it may be sued in as- sumpsit for use and occupation.^ An express power vested in a corporation by its charter to hire premises for corporation pur- poses by implication vests in it all powers which are necessarily incidental thereto and which are required to render the posses- sion and occupation of the premises beneficial to the corporation. The corporation would therefore enjoy the incidental power to enter into the usual covenants in a lease as, for example, the covenant to repair even though it would thereby become liable to rebuild in case of the destruction of the premises by fire.'' So, too, the power of a corporation to lease land from the owner in- cludes by implication the incidental power to agree to pay a specific sum of money for rent or to pay such a sum as arbitra- tors may agree upon.^ A coi-poration which, as a lessee of land, has entered and occupied the same cannot defend an action for rent or for iLse and occupation on the ground that it is not a corporation de jure. It is sufficient so far as the landlord's rights are concerned that it is a corporation de facto while he. on the other hand, is estopped to repudiate his obligations under the lease upon the ground that the corporation has no legal exis- tence where he has recognized and dealt with it as a corporation.® The plaintiff in an action for rent is relieved from proving the existence of a corporation in answer to a plea of nul tiel c&rpo- raiion where it appears that there has been the execution and de- livery of a valid lease by the landlord to the corporation. The existence of a lease or other writing in which the corporation is described in its corporate capacity, executed and delivered to the corporation is prima facie proof of the existence of the cor- poration.^" § 51. The form of corporation leases. Aside from the neces- sity for a seal, no particular form is requisite to be followed in the execution of a lease by a corporation. No different language 6 Lowe V. London R. R. Co., 14 s The Alexandria Canal Co. v. Eng. L. & E. Rep. 19. There can Swann, 5 How. (46 U. S.) 83, 12 be no question that a corporation Law. ed. 60. may become a tenant from year to o Whitford v. Laidler, 94 N. Y. year. Crawford v. Longstreet, 43 145. 151, 46 Am. Rep. 151. N. J. Law, 325. lo West Side Auction House Co. 7 Abby V. Billups, 35 Miss. 618, v. Connecticut, etc., Ins. Co., 186 72 Am. Dec. 143. 111. 15S, 57 N. E. Rep. 839. 64 LAW OP LANDLORD AND TENANT. is required from that used in cases where the parties are nat- ural persons." The lease to bind the corporation either as les- see or lessor must be in its form the instrument of the corpora- tion and not of its individual officer or agent. It may not al- ways be necessarj^ that the signature of the lease shall be tech- nically the signature of the corporation, though that is always advisable. If from the body of the lease it is clearly apparent that Uie corporation is intended to be bound, and particularly if the corporation being the lessor shall have permitted the les- see to go into possession and to pay rent, it cannot repudiate the instrument because it has not subscribed to it the name of the corporation or because it is not sealed with its corporate seal. Hence where the agent of a corporation had made a contract agTeeing to give a person a lease ; and the corporation had per- mitted the latter to enter and had received the rent from him it it bound to give him a lease and cannot refuse to do so upon the ground that the contract was not sealed and signed by the cor- poration.^2 § 52. The necessity for a seal on a corporation lease. By the ancient common law it was a rule that a corporation could transfer or grant its real property, and in fact, could make a contract of any description only under its corporate seal. This doctrine, however, that a corporation can contract only under its corporate seal is now universally repudiated.^^ Such a rule based as it was upon the almost superstitious reverence which the early common law tribunals in England entertained for a seal could only be tolerated when corporations were not numerous. As soon therefore as the increase in commercial enterprise brought about the formation of large companies by which the capital of numerous individuals was combined in the form of corporate capital to carry on the increasing trade of the community the rule was entirely abrogated. The modern rule is that all corporations, 11 Poole V. Bentley, 12 East, 168; ter v. Ely, 7 Sim. 211; Canal Co. Morgan v. Powell, 7 Man. & G. 989. v. Wilmot, 9 East, 360; Macbean 12 Conant V. Bellows Falls Canal v. Irvine, 4 Bibb (Ky.) 17; Long Co., 29 Vt. 2G3. V. Madison & Flax Co., 1 A. K 13 Sustaining the common law Marsh. 105; Franlifort Bank v. An- rule see Rochester v. Pierce, 1 derson, 3 A. K. Marsh. (Ky.) 1; Camp. 466; Rex v. Chipping Nor- In re Cape Sable Co., 3 Bland ton, 5 East, 239; Bridge Com- (Md.) 606. pany v. Side, 2 C. & P. 371; Car- CORPORATION LEASES. C5 in the absence of a restraining statute, may make all contracts which are within the scope of their general powers without the use of a corporate seal. Applying this general rule to the sub- ject under discussion, it follows that the lease must be one which the corporation has a right to make, under its charter or under the statute law of the state in order to carry out the purpose of its creation. And the effect of the modem repudiation of the ancient rule is only to place a corporation upon an equality with the individual so far as the necessity for a seal is concerned. If a contract when executed by an individual must be under seal in order to possess validity the same contract when executed by a corporation must also be under seal.^* § 53. By what officer corporation lease should be executed. Until the contrary appears it may safely be presumed upon the general principles of the law of corporation contracts that the president of a corporation has power to lease the lands of the corporation.^^ The leasing of land on his part where the corpo- ration has power to own land, is so manifestly for the benefit of the corporation and seemingly so far an incident of his general powers as its president that it will require some affirmative proof 1* Shropshire v. Behrens, 77 Tex. 275, 13 S. W. Rep. 1043. The modern rule that a corporation may contract without seal as ap- plicable to contracts generally is sustained by the following cases: Curry v. Bank, 8 Port. (Ala.) 360; McKiernan v. Lenzen, 56 Cal. 61; Dennis v. Maynard, 15 111. 457; Northeastern F. Ins. Co. v Schet- ter, 38 111 166; B. S. Green Co. v. Blodgett, 55 111. App 556; Chris- tian Church of Wolcott v. John- son, 53 Ind. 273; Ring v. Johnson County, 6 Iowa, 263; Lathrop v. Commercial Bank, 8 Dana. (Ky.) 114, 33 Am. Dec. 481; Kennedy v. Baltimore Insurance Co., 3 Har. & J. (Md.) 367, 6 Am. Dec. 499; Pe- trie V. Wright, 14 Miss. G47; Buck- ley V. Briggs. 30 Mo. 452; Teitig V. Boesman, 12 Mont. 404. 31 Pac. Rep. 371; Brady v. City of Brook- lyn, 1 Barb. (N. Y.) 584; Gates v. Home M. L. Ins. Co., 4 Am. Law Rev. 395; Thew v. Porcelain Mfg. Co., 5 Rich (S. C.) 415; Fowler v. Bell (Tex. 1896), 35 S. W. Rep. 822; Ford v. Hill, 92 Wis. 188, 66 N. W. Rep. 115; Bank of Virginia V. Poitiaux, 3 Rand. (Va.) 136. In Crawford v. Longstreet, 43 N. J. Law, S25, a lease for years by a corporation not sealed was held valid. 15 Baltimore & P. Steamboat Co. V. McCutcheon, 13 Pa. St. 13. See, also, as sustaining the general rule Boston Tailoring Co. v. Fisher, 59 111. App. 400; Savings Bank of Cincinnati v. Benton, 2 Met. (Ky.) 240; Northern Cent. Ry. Co. V. Bastian, 15 Md. 494; Pot- ter V. New York Infant Asylum, 44 Hun (N. Y.) 367. 66 LAW OF LANDLORD AND TENANT. to show he has not the power. But where, by tlie charter of the corporation, the power to lease is vested exclusively in the board of directors a court of equity may enjoin a lessee from entering upon the possession of corjDorate real estate imder a lease made by the president of the corporation without the authority and consent of the board of directors.^* The general manager of a corporation will, unless it is proved that the other contracting parties had knowledge of the limitation of his authority be pre- sumed to have authority to lease land which is owned by the cor- poration.^^ This rule is based on the principle of estoppel. A corporation which permits its general manager or any other offi- cial to deal with the public as its general agent, as for example, in buying and selling its real or personal property, and in hir- ing and discharging its employes, will be estopped, as against a lessee of premises owned by the corporation, to assert that the powers of the general manager to act for the corporation in leas- ing land were restricted by orders emanating from its direc- tors.^* In all eases one who takes a lease of land owned by a corporation should make diligent inquiries as to authority of the agent with whom he is dealing. It has been held in one case that the agent or other officer making the lease must have ex- press authority to do so and that individual directors cannot bind a corporation by a lease.^^ A lease may be binding on a corporation when made by an agent without express authority and at the same time the lease may not be enforced by the cor- poration. So, a corporation cannot enforce a lease made by its agent without the authority of its board of directors.^" § 54. The period for which a corporation lease may run. At the common law a corporation owning the fee simple of land may lease it for any term of years however long. If by statute or at common law a corporation has power to lease its property and franchises the fact that the lease is for so long a time as to practically constitute a lease of the property in fee does not, as between the parties of the lease, effect its validity.^^ Nor will 18 Yellow Jack^ Silver Min. Co. is Hartford Iron Mfg. Co. v. V. Stevenson, 5 Nev. 224. Cambria Min. Co., 80 Mich. 491. 17 Singer Mfg. Co. v. Malean, 105 20 Berlin v. Belle Isle Scenic Ry. Ala. 316, 16 So. Rep. 913. Co., 12 Det. Leg. N. 573, 105 N. W. 18 Phillips & Buttorff Mfg. Co. Rep. 130. V. Whitney, 109 Ala. 645, 20 So 21 Dickinson v. Con.solidated Rep. 333. Traction Co., 119 Fed. Rep. 817. CORPORATION LEASES. 67 a court of equity annul a lease for a very long term made by a corporation on the application of a minority stockholder, if the action of the corporation in making the lease was approved by the majority of the stockholders, unless it can be sho^vn that the making of the lease was procured by fraud, or that its execution was detrimental to the interest of the corporation.-- The mere fact of the length of the tenn of the lease will not alone be con- sidered as ground for annulling the lease. The fact that the lease extended beyond the term of the life of the corporation does not invalidate it. The lease is valid during the corporate life of the corporation. If by statute the corporate existence can be extended the lease may also be valid for such period as the life of the corporation is extended.-* A lease to a corporation which is to extend beyond the period of the existence of the corporation as limited by its charter is not void for that reason. Such a case is analogous to that for a time certain if the lessee shall live so long. Thus a lease to a corporation for nine hundred and ninety-nine years is valid though the corporation is to expire in forty years particularly where it is binding on the corporation and its successors and in the charter provisions are made for a renewal of the charter by the state legislature.-* By statutory enactment of the Congress the charter of a national bank may be extended upon the expiration of its corporate existence almost as a matter of course. It may readily be assumed from this stat- ute that a national bank is not limited in the making of leases of premises for banking purposes to terms which shall be lim- ited by the corporate existence of the bank."^ The lease of prem- ises entered into by a national bank as lessee for the sole purpose of transacting its banking business is not invalid though the term shall extend beyond the period of the life of the bank under its charter. Accordingly it has been held that a lease to a na- tional bank of premises for a term of ninety-nine years is valid.-* The fact that a lease of property to a corporation runs to its 22 Dickinson v. Consolidated 309, 329, 2 C. C. A. 174, 10 U. S. Traction Co., 119 Fed. Rep. 871. App. 98. 23 Hill V. Atlantic & N. C. R. 25 Weeks v. International Trust Co., 143 N. Car. 539, 55 S. E. 854, Co., 125 Fed. Rep. 370, 374, 60 C. 864; Tate v. Neary, 65 N. Y. Supp. C. A. 236; reversing 116 Fed. Rep. 40. 898. 24 Union Pac. Ry. Co. v. Chicago, 2c Brown v. Schleier, 118 Fed. R. I. & P. Ry. Co., 51 Fed. Rep- Rep. 981, 984, 55 C. C. A. 475, 478. 68 LiAW OF LANDLORD AND TENANT. assignees or successors may avoid an objection that its term does not expire until after the existence of the corporation is at an end. And it is not material if the lease under such circumstances is assignable, th.at it is assignable only with the consent of the lessor. Thus a national bank may validly lease a building for its own occupancy for a term extending beyond its existence though the lease is assignable only upon the assent of the land- lord." § 55. When leases are ultra vires. A lease, like any other contract of a corporation, may under certain circumstances be ultra vires. In determining whether a lease is ultra vires it should be borne in mind that a corporation has no powers ex- cept such as are expressly given to it by and in its charter, or which are incident and necessary to its corporate existence. It will be presumed to possess such powers as are necessary to en- able it to carry into effect the express powers conferred upon it by its charter. Corporations have almost universally the ex- press power to own real property conferred upon them by char- ter; and, where this is the case, the act of the corporation in leasing lands owned by it cannot be ultra vires as the leasing of land is an inseparable incident of their ownership and necessary to the full enjoyment of such ownership for otherwise the o\vner will be absolutely prevented, unless he is able to cultivate or otherwise occupy the land himself, from deriving any profit from his ownership. In regard to corporations leasing their lands, the general principle should always be kept in mind by the lessee that persons dealing with coi-porations are chargeable with notice of the limitations imposed upon them by the terms of their charters. The lessee ought to employ care to see to it that the provisions of the charter, if any there be, regulating the leasing of the property of the corporation with which he is dealing are being complied with. But where he acts in good faith in entering into the lease, and he is permitted to enter into possession and to pay rent to the corporation, it will be estopped to plead snljsequently that it acted ultra vires in making the lease. Accordingly a lease made by a company is not ultra vires merely because it did not receive the approval of the company as provided for by the charter. The fact that the lessee under such 27 Weeks v. International Trust Co., 125 Fed. Rep. 370, 374; reversing 116 Fed. Rep. 898. CORPORATION LEASES. 69 a lease entered into possession and began working the land and with the permission of the lessor was permitted to do so for more than three months estops the lessor.-^ A corporation having by its charter the poAver to brew, and to sell beer and to lease premises for that purpose has power to lease a saloon for the purpose of selling its own beer.-^ And the fact that after taking a lease itself of premises for that purpose it sublets them to an- other for the same purpose will not avail the corporation to plead ultra vires.^" So, the lease of premises by a company which has charter power to buy and sell lager beer is not invalid because a portion of the premises is used for saloon purposes.*^ So also, a corporation which has charter power "to carry on a general brewing and malting business and to manufacture and sell soda water" may execute a valid lease of premises "to be occupied for a saloon and for no other purpose." A lease for saloon purposes would be by implication within the power of the corporation.^^ It is usually held that a corporation which pur- poses to act as a lessor cannot by its action disable itself from performing the purpose for which it was created. If the pur- pose of the occupation by the tenant is similar to that for which the corporation which is the lessor was incorporated there can be no question of the validity of the lease. Thus, a corporation which has been created to bore for oil may lease its land to a person who intends to take the oil from it, upon a royalty to be paid to the lessor. The lease is not an abandonment by tlia corporation of the purpose for which it was created.^^ So also, a corporation organized for literaiy and scientific purposes may lease a portion of its building for theatrical and similar pur- poses. A national bank has implied power under its charter to 2s Equator Min., etc., Co. v. Gu- S3 Starke v. J. M. Guffey, Pe- anella, 18 Colo. 548, 33 Pac. Rep. tr oleum Co. (Tex. 1905), 86 S. W. 613. Rep. 1, affirming 80 S. W. Rep. 29 Welsh V. Ferd. Herm Brewing 1080. Co., 47 Mo. App. 608. s* Catholic Institute v. Gibbons, 30 Welsh V. Ferd. Herm Brewing 7 Dee. Re. 576, 3 Bull, 581, af- Co., 47 Mo. App. 608. firmed in Gibbons v. Catholic In- 31 Keeley Brewing Co. v. Mason, stitute, 7 Dec. Re. 548, 3 Bull, 887; 116 111. App. 603. Gibbons v. Catholic Institute. 34 32 Brewer, etc.. Brewing Co. v. Ohio St. 289. Boddie, 181 111. 622, 55 N. E. Rep. 49. 70 LAW OF LANDLORD AND TENANT, erect office buildings for its own use and to rent out offices in them so far as the renting- of offices does not constitute an aban- donment of the purpose for which the bank was incorporated.^^ § 56. The effect of the dissolution of a corporation upon an existing lease. In the absence of express statutory provision the dissolution of a corporation operates as an extinguishment of all debts due from or to it. In most of the states of the union provision has been made by statute for the winding up of cor- porations and saving the rights of those who have claims against them at the date of their dissolution. The United States supreme court has held that the executory contracts of a corporation are not extinguished by its dissolution.^^ And in the state of New York it has been expressly held that a lease to a corporation is not terminated by its dissolution but that the obligation to pay the rent due and which has accrued before dissolution may be enforced against the receiver of the corporation.^" Where a corporation on the petition of its stockholders is voluntarily dis- solved and a receiver appointed for its property, it comes under the rule that, in the case of an executory contract containing con- tinuing mutual obligations, where one party voluntarily disables himself from further performing the contract, the injured party may sue at once for the entire damage sustained during the whole period caused by the loss of the contract. The obligation of the corporation to pay rent during the term is an executory agreement the perfoniiance of which in the future may be of value to the lessor and which the corporation by its voluntary action disables itself from performing. The case is stronger to protect the rights of the lessor where the receiver after his ap- pointment elects, as he may do, to vacate the premises and to abandon the lease as an asset of the corporation. The breach of the covenant to pay rent is then complete and final and the lessor may at once present his claim for damages to the receiver 35 Farmer's Deposit National receiver where a corporation had Bank v. Western Pennsylvania leased property and the lease was P'uel Co., 215 Pa. St. 115, 64 Atl. to run for 999 years and as long Rep. 374. as the lessee corporation shall con- sc Shields v. Ohio, 95 U. S. 319, tinue to exist as such and be cap- 24 Law. ed. 357. able of exercising all its functions. 37 People V. National Trust Co., New York El. R. Co. v. Manhat- 82 N. Y. 283. See fuither as to tan Ry. Co., C3 How. Pr. (.N. Y.) the effect of the appointment of 14. CORPORATION LEASES. 71 and sue at once if he shall refuse to pay. To accept any oth?r view of the matter would be to confer an unlimited power upon all corporations of repudiating all their executory covenants by instituting proceedings by the stockliolders for voluntary dis- solution. True the damages for such a breach of contract are unliquidated, indefinite and difficult of proof, but a right to bring an action at once exists which is not to be defeated by any real or apparent difficulty in the remedy.*^ § 57. Power of municipal corporations to grant leases. In determining the existence of a power in a municipal corporation to grant leases of the property which it holds and owns as such, a clear distinction must be made, and is made b}^ most of the cases, between property which the corporation owns in a private or semi-private capacity, and property which it owns as a quasi trustee for a public or charitable use. or for some public purpose. "Where the property is held in trust for the general use of the public the corporation cannot, without some express legislative authority lease or alienate the same to private persons or corpo- rations.^® This would be the case as regards lands devoted to the use of the general public as streets and highways, parks, wharves, levees, bridges and the like. Thus a lease by a city of such land for private purposes will generally be invalid in the absence of specific legislative authority in the city.*° Where by the statute of title of school-houses is vested in the board of 38 Kalkhoff V. Nelson, 60 Minn. by a city of property in wliich it 284, 288, 62 N. W. Rep. 332. had an easement only for levee 39 Weekes v. City of Galveston, purposes is void and confers no 21 Tex. Civ. App. 102, 51 S. W. rights of possession as against the Rep. 544, which related to a lease grantor of the easement. San- hy a city of an island in its har- born v. Van Duyne, 90 Minn. 215, bor originally conveyed to the 96 N. W. Rep. 41. city by the state for the use and ^o See on the general subject benefit of the general public and Alve v. Henderson, 16 B. Mon. for the advancement of naviga- (Ky.) 131, 168; Macon v. Dasher tion and fishing. See Leaux v. (Ga. 1893), 16 S. E. Rep. 75; City of New York, 87 App. Div. Mowry v. Providence, 16 R. I. 422. 405, 84 N. Y. Supp. 514; Pennsylva- 16 Atl. Rep. 511; Warren Co. Sup. nia R. R. Co. v. St. Louis, A. & v. Patterson, 56 111. Ill; Hoad- T. H. R. R. Co., 118 U. S. 290; Ma- ley's Admr's v. San Francisco, 124 rine T. Co. v. Railroad. 41 Fed. U. S. 639; San Francisco v. Itzell, Rep. 643; Thomas v. West Jersey 80 Cal. 57; Meriwether v. Gai'rett, R. R. Co., 101 U. S. 70; Mahon v. 102 U. S. 472. Columbus, 58 Miss. 310. A lease /2 LAW OF LANDLORD AND TENANT. education or in similar bodies in trust for the use of public schools, a lease of a public school for the purpose of carrying on therein a private or select school^, is invalid as in violation of the trust. The use of the school by the lessee will be restrained at the suit of a taxpayer though he may not show any special in- jury and the mere fact that the use to which the lessee puts it is of the same character as the public use to which it was re- strained, is not material, for by putting it to a private use it is evident that some portion of the public would be prevented from availing themselves of an opportunity to receive education.*^ In respect to property which the municipal corporation owns in a quasi private capacity the power to lease is much more ex- tensive and usually may be exercised without express statutory authority. The municipal corporation may lease its private property whenever it is deemed expedient and profitable to do so.*^ If the lease be valid it will not be set aside for some ir- regularity in form or in the use of the corporate name.*^ Under this rule would come all cases where the municipal corporation should assume the power to lease buildings, such as town halls, engine houses, sichool-houses and similar structures owned and used by it in a semi-private capacity. Thus it is a very common occurrence, particularly in small towns, for the municipality to rent the town hall or city hall to private persons or to associa- tions and lodges as a place in which to give concerts, fairs and similar entertainments. A person who has entered in possession under such a lease cannot be heard to plead its ultra vires char- acter as against the city who is the lessor.** So also, where a building, which has been devoted to public uses is no longer used for such purposes, it may be repaired and rented to private per- 41 Weir v. Day, 35 Ohio St. 143. enabled a county to "sell or other- 42 Pacific Coast S. S. Co. v. Kim- wise dispose of its school land" ball, 114 Cal. 414, 46 Pac. Rep. enables the county to lease the 271; Belchers S. R. Co. v. Grain land as well as to sell it and hav- Elevator, 101 Mo. 192, 13 S. W. ing leased it its lessees will be Rep. 822; Holywood v. First Par- protected by the courts in their ish (Mass.) 78 N. E. Rep. 124; possession. Falls County v. De Taylor v. Carondelet, 22 Mo. 105; Lancey, 73 Tex. 463, 11 S. W. Rep. Hand v. Newton, 92 N. Y. 88. 492. 43 New York v. Kent, 5 N. Y. 44 Bell v. Platteville, 70 "Wis. Supp. 567; McDonald v. Sfhnei- 139; Stone v. Oconomowoc, 71 der, 27 Mo. 405; St. Louis v. Mer- Wis. 155. ton, 6 Mo. 476. A statute which COEPORATION LEASES. 73 sons by the city.'*" A municipal corporation may lease a part of a public building for private purposes if the portion leased is not necessary for municipal use, and the lease is valid and en- forcible until some urgent public necessity arises for the use of the land leased for its original purposes. The use, however, must be a public and municipal use and the susequent lease of the same land to another person for a private use, does not give the latter any right to occupation or to deprive the first lessee of his possession unless the second lessee shall see fit to compen- sate him. And upon general principles under such circumstances the second lessee has no action against the city for a failure to deliver possession where he Imows or can ascertain by reasonable inquiries that the land was in the possession of another person as lessee/® § 58. A municipal corporation as a tenant. Broadly speak- ing a municipal corporation has the right to lease a building for its use for city purposes, whenever the public necessities require it and it is deemed more expedient to lease than to buy.'*^ This is so even in the absence of express statutory authorization as it is a necessary incident to municipal government and essen- tion to the accomplishment of the municipal purposes. If the charter limits the length of the term, or prescribes the charac- ter of the buildings which may be hired or the formalities with which the lease must be executed it must be consulted and its terms followed. But in the absence of such statutory require- ments the length of the term for which the city may legally con- tract to hire the building will depend upon all the circum- stances among which may be mentioned the character of the building demised, its condition when the lease is executed, the purpose for which it is to be used by the corporation, the diffi- culty in securing other property, the prospects as to other similar buildings being erected, the financial condition of the city and other relevant facts.*^ A distinction is made between those pow- ers of the corporation which are public and legislative and those which are of a purely business and semi-private nature. The <5 Bates V. Bassett, 60 Vt 530. <7 Davies v. Mayor, etc., of XeTV reunion Ry. Co. v. Chickasaw York, 83 N. Y. 207. Cooperage Co. (Tenn.), 95 S. W. 48 City of Michigan City v. Rep, 171. Leeds. 24 Ind. App. 271, 55 N. B. Rep. 799, 74 LAW OF LANDLORD AND TENANT, power to execute a lease is merely a power to do a species of municipal business essential to the corporation's existence. And if the power to execute a lease is not required to be evidenced in a particular way the municipal corporation may be bound by an implied hiring arising from its use and occupation of prem- ises to the same extent as an individual.*^ If tlie liability of the city to pay rent is, by the express tenns of the lease made to depend upon the making of an appropriation to pay it by the city council, the city is not liable in an action for the rent if no appropriation has been made though the city has power to make the appropriation and, having received the benefit of the use and occupation of the premises, morally ought to have done gQ GO Jq Texas the courts have refused to apply the well recog- nized rule that a tenant holding over after the expiration of his term will by implication of law be regarded as agreeing at the option of the landlord to hold for another year upon the terms. of his prior lease to municipal corporations. Hence, where a city rented premises for one year, with the right of a renewal ; and the officers of the city occupied the premises and rent was. paid for several years, no agreement for the creation of a tenant from year to year will be implied from holding over. The law will not imply a contract of lease from the fact that city offi- cials, not by law authorized to execute a lease, have continued in the occupation of the demised premises after a valid lease for the same has expired. Where the municipal charter or other statute expressly prescribes in what manner and by what board or officials municipal contracts can be validly executed by the city, the municipal corporation cannot become bound by a lease which is not executed by the persons, or in the manner prescribed. And, although a contract may in a sense be implied on tlie part of the city to do justice where it has received the benefit of a contract which, under the statute, it had the power to make, but which was not executed in the statutory mode, the corporation cannot be held under an implied contract, where the contract is wholly exeeutory.°^ It has been held that a city under a charter providing that it shall have a general power of municipal cor- <» City of Michigan City v. City of Bridgeport, 75 Conn. 495, Leed, 24 Ind. App. 271, 55 N. E. 04 All. Rep. 196. Rep. 799. f^i City of San Antonio v. French,. BO Marsh, Merwin & Lemmon v. 80 Tex. 575, 16 S. W. Rep. 440. CORPORATION LEASES. ii> poration at common law, and expressly authorizing it to lease real estate for the convenience of the inhabitants has power to lease private land for temporary use as a public street or high- way, where the convenience of the inhabitants requires it. For, though it is true that ordinarily the fee simple title to streets and public highways is vested in the municipal corporation, yet it is conceivable that circumstances may arise calling for a tem- porary'- use only of private grounds for public traffic. Thus, it may be necessaiy for the city to secure a temporary right of way around some temporary obstruction in a street or to open a temporary street betAveen two points while a permanent street is being built or repaired, particularly when the very dilatory process of taking land by right of eminent domain is consid- ered. In the case of a lease under such circumstances, the only right the public acquires, is a right to use the premises tempo- rarily as a street. AVhen the term is at an end, the landlord may resume possession and after that date, his right becomes abso- lute as against the public. The premises thus used temporarily, never become public, but always remain private property, so that the principles which apply to ordinary city land do not apply here, and if the city at the expiration of the term fails to quit, and deliver up the possession, but continues to use it for public purposes, the landlord may at his option, hold the city as a tenant from year to year upon the terms of the lease._^^ Unless it is expressly empowered to do so by its charter, a municipal corporation cannot lease land from a private owner for the pur- pose of carrying on a park or pleasure ground as a private enter- prise for profit to be derived from subletting the land or privi- leges in the park or from payments by the public for admis- sions. Neither a charter power to hold real estate nor the power to make such necessary regulations as may be for the health, benefit or general welfare of the public, authorizes a municipal corporation to hire land for the purpose of engaging in private business. The rule would be different if the pui-pose for which the land was leased were a public one, such as the maintenance of a public park, a public wharf, or hospital or the opening of a street or an avenue for public travel or traffic. But the leasing of land for private business purposes is ultra vires, and will be 62 Oilman v. Milwaukee, 31 Wis. 563. 76 LAW OF LANDLORD AJOT) TENANT. restrained by a court of equity upon the application of a tax- payer, and if such a lease is executed it will neither be enforced on the application of the lessee, nor can the lessor collect rent for its occupation by the municipal corporation.^^ § 59, Ultra vires leases by municipal corporations. The general principles of the doctrine of contracts ultra vires, so far as it relates to and regulates the contracts of municipal cor- porations, are applicable to their leases. The authority of the officers of a municipal corporation to make leases is limited to such leases as are either expressly or by implication within the purposes for which the corporation was created and these pur- poses are customarily such as are specified in the charter or other statute under which the corporation has been incorporated. Municipal officers are held strictly within the scope of the pow- ers and authority conferred upon them by statute, though of course such powers may be implied as well as express, and hence, it follows that no municipal officer can bind the municipal cor- poration either as lessor or lessee unless the lease be such a one as he has statutory authority to make. Persons dealing in contractual relations with municipalities are presumed to know the powers and authority under the statute of the officers with whom they deal; and, though this is simply a practical applica- tion of the rather far fetched fiction that every one is presumed to know the law, yet the principle is so well esta,blished and so well recognized by the courts that it behooves every intending lessee or lessor of a municipal corporation, not only to inform himself of the general characteristics of its charter but also of the specific powers, authorities and duties of the officer or offi- cial board with whom he is dealing. "Whether or not a given lease is ultra vires can usually be determined only upon a careful examination of the municipal charter and collateral legisla- tion, affecting and controlling the powers of municipal coi-po- rations in general, or of the particular city or town in question. There is, however, a wide distinction as to their enforcement be- tween contracts which are illegal because beyond the corporate powers or because contrary to public policy, and those which are within the corporate powers but which have been made by an officer not possessing the power to execute them. The unauthor- 03 Bloomsburg Land Imp. Co. v. Borough of Bloomsburg, 215 Pa. St. 452, 64 Atl. Rep. 602. CORPORATION LEASES. 77 ized act of the municipal official in executing the contract with- out the authority to do so may be ratified, either by words or conduct on the part of the city, if it has the charter power to make such a contract. But a contract ultra vires cannot be rati- fied, unless the power to do so is expressly conferred by the legislature. Thus, where a municipal official hires or rents city property for a use or purpose which is consistent and compat- able with the purposes of the charter, his action may be ratified by the action of the city in accepting or delivering possession, and paying or receiving rent according to the circumstances whether the city is the landlord or the tenant. But a lease ab- solutely ultra vires may be revoked by the city and the lessee cannot recover any damages he may have sustained thereby, though, if the consideration which has been received by the city has not been restored a court of equity will order that this shall be done before relieving the city from its obligation upon the lease."* § 60. Leases of park grounds by municipal corporation. In the absence of an express statutory prohibition it is generally admitted that a municipal corporation owning and controlling grounds which are dedicated to, and used for a public park, may lease such grounds to private persons to be used by them for purposes which are germane to the general purpose for which the park was established. The principal and indeed the sole purpose of the establishment of public parks is to provide amuse- ment and recreation for the general public and to give an op- portunity to those who frequent them to enjoy the fresh air and quiet which they can find in no other place in the crowded city. As subsidiary purposes may be mentioned the opportunity to enjoy the beauties and delights of natural scenery as they have been enhanced by the skill and industry of the landscape gar- dener and to visit museums and art galleries which may be lo- cated within the confines of the parks. In making leases the city authorities must use care to secure such tenants only who will not by the use which they make of the ground leased to them seriously interfere with the purposes for which the public parks B4 An ultra vires lease, exe- lessee for the sum he paid for it. cuted by a city and afterward re- Weekes v. Galveston, 21 Tex. Civ, voked by it. does not render the App. 102, 51 S. W. Rep. 544. city liable to an assignee of the 78 LAW OP LANDLORD AND TENANT. exist. It cannot be doubted that a lease of park lands for such a use as would materially prevent the free, uninterrupted and convenient use of the park by the public generally or by any numerous class of persons would be held by the court to be an unwarranted abuse of the municipal discretion. Leases of park land for hotel purposes have generally been sustained. ^^ If the hotel is conducted in a proper manner it cannot fail to add to the advantages which the public will derive from the use of the park. For if it is proper for the city to provide recreation and amusement for the public it is certainly proper to provide for the rest and refreshmeoits of those who resort to the parks for what the city has provided for them. And inasmuch as it is usually inexpedient if not illegal for a city to engage in hotel keeping, it is surely in its discretion for it to delegate this work to others under proper restrictions. By a long established cus- tom refreshments have been for years served to visitors to the great parks of our country, so that it is too late now for a valid objection to be raised on the grounds of the diversion of the parks from their primary purpose by a lease of a portion of them for use as a hotel or restaurant.^*' In the absence of an express stat- utory prohibition, a municipal corporation, or its park depart- ment may lease a building on park lands for restaurant pur- poses to a private party. Such a building properly conducted as a restaurant will be of great public service to the frequenters of the park, add to its attractions, and conduce to the further- ance of the purposes for which parks are maintained, which is the recreation and amusement of the public. The municipal authorities cannot give a lease for an unreasonable term, or ab- dicate the general control which they must exercise under their charter powers over the city property. And if the effect of the lease is to prevent the park officials from performing any of the duties which they owe to the public, of the operation of the res- taurant or other buildings which has been leased interferes ma- 88 Harter v. City of San .Tose, lie park for trainine; and rnnnin.^ 141 Cal. 659, 75 Pac. Rep, 344, 346; race horses is not necessarily ul- Gushee v. City of New York, 58 tra vires. But the absolute ex- N. Y. Supp. 967; State ex rel. At- elusion of the public from the torney General v. Schweickart, park will n,ot bo permitted. Bry- 109 Mo. 346, 19 S. W. Rep. 47. ant v. Logan, 56 W. Va. 141, 49 S. 6« A lease of a portion of a pub- E. Rep. 21, CORPORATION LEASES. 79 terially with the use of the park by the public, or tends to dimin- ish its utility for the purpose for which it has been created and for which it is supposed to be maintained, a court of equity will interfere and set aside the lease upon the instance and applica- tion of a resident taxpayer or other person having a legal capac- ity to sue. Thus a lease must always be subject to the power of the park officials to make such rules and regulations for the necessary government of the park as they may be authorized and commanded to mal^e by the statute. On the other hand as soon as the lease is made and the lessee enters he is protected by the court from capricious and unnecessary interference by the park officials.^'^ 67 Gushee v. City of New York, ing 26 Misc. Rep. 287, 56 N. Y. 5,8 N. Y. Supp. 967, 42 App. Div. Supp. 1002. 37, 92 N. Y. St. Rep. 967; affirm- CHAPTER III. LEASES BY JOINT OWNERS. § 81. Leases by Joint tenants and tenants in common distinguished. 62. Tenancy in common. 63. The relation of landlord and tenants among tenants in common. 64. Tenants in common as lessors. 65. Actions by tenants in common to recover rent. 66. Effect of a lease by joint owners. 67. The right of joint tenants to the rent. 68. The liability of joint lessees for rent. 69. The liability for rent of co-partners in business. § 61. Leases by joint tenants and tenants in common dis- tinguished. An important distinction exists as to the execu- tion and operation of leases between tliose made by joint tenants and those made by tenants in common. If all the joint tenants unite in the execution of a lease it is regarded in law as but one lease made by one lessor. Where several tenants in common join in the execution of a lease it is regarded as several leases of their separate and respective shares.^ While the joint owner- ship lasts joint tenants taken together constitute but one tenant of the land and therefore they are said to be seized per tout. For purposes of alienating the land each is seized per my and for this reason all the joint tenants are said to be seized per my et per tout. This being the case either of the joint tenants may make a lease of the whole property though it will not bind the others unless they shall assent thereto. In other words a lease of the property to be binding on all the joint tenants must eitlier be executed or subsequently ratified by all of them.^ 1 Comyn's Digest, Title, Estates 136, 162. A lease by one of sev- (G) 6; see Jurdain v. Steere, Cro. eral joint tenants "to the extent jac. 83. of his interest" carries not only 2 Kingsland v. Ryckman 5 Daly an undisputed interest owned by (N. Y.) 13; Co. Litt. 168&; Rolle's him, but also an interest in the Abr. 488; Morris v. Barry, Wils. premises claimed by him but 1; Bond V. Cartwright, 1 Vent. which is in litigation when the LEASES TO JOINT OWNERS. 81 § 62, Tenancy in common. This species of tenancy differs from a joint tenancy in tliat in the case of a tenancy in common there need be no nnity except a unity of possession. One of the tenants in common may hold the fee and another a life estate or a term for years. As to the quantity of land one may own the half and several others may own the other half, either equally or unequally among them.^ Neither of the several tenants in common is entitled to the exclusive possession of all the land to the exclusion of the others nor, until partition shall have been made, to possession of a particular part of it. Hence inas- much as he cannot exclude his co-tenants by his own occupa- tion of the land he is unable without their consent or their ratification to lease either all or any particular portion of the land in such a way that his lessee shall have the right to an. exclusive possession of what the lessor has presumed to demise to him. A lessee of one tenant by a lease in which the others have not joined is as to them a trespasser so far as he occupies any portion of the land owned in common and liable to an ac- tion quare clansum fregit.^ The co-tenant in common cannot, before partition, lease a distinct portion of the estate by metes and bounds unless with the assent of his co-tenant but he may do so after a partition even though the partition shall have been made by parol.^ Though as to the lessor's co-tenant, a lessee of one tenant in common is a trespasser, yet, as to strangers, he is entitled to the occupation and possession of what he has been de- mised and may maintain his possession by the same means as though his lea,se had been executed by all the tenants in common.' As between him and his lessor the same rules are applicable that regulate the relation of landlord and tenant generally. The lessee •cannot deny the title of his lessor nor the title of the co-tenants of his lessor where all the tenants in common derive their title from the same source. On the other hand his lessor is bound to se- cure him in his possession and if he is ousted by the act of the co-tenants of his lessor it is an eviction as to his lessor and stops the running of rent as to him. lease is signed but wtiich he sub- b Wood v. leet. 36 N. T. 499, sequently acquires. White v. Stu- 509; Pope v. Whitehead, 68 N. C. art, 76 Va. 546. 101; Whaley v. Dan^er. 28 Ch. & 8 2 BlacliStone's Com. 192. Cef. 267. ^Erwin v. Olmsted, 7 Cow. (N. e Collier v. Corbett, 15 Cal. 183; Y.) 227. Hart v. Robinson, 21 Cal. 346. 6 82 LAW OF LANDLORD xVND TENANT. § 63. The relation of landlord and tenants among tenanxs in common. It is permissilbe for two or more tenants in com- mon to agree between or among- themselves by an express lease that one or more of them shall have the exclusive use, control and possession of the premises, paying rent for the same to the others. If such an agreement is made the relationship of land- lord and tenant exists between those who are in possession pay- ing rent and those who are out of possession receiving it. But where there is no such express agreement the relation of -land- lord and tenant does not exist between one tenant in common in actual possession and the others.'^ It is entirely competent for one tenant in common to make a lease of his undivided share to his co-tenant and to contract with him for that purpose.* Un- doubtedly they may create among or between themselves the re- lationship of landlord and tenant by an express oral or written agreement.® Of course such a contract can exist only by the mutual intention and assent of the tenants in common. There must be an express contract of lease to create the relationship of landlord and tenant. The mere fact that one of two or more tenants in common is permitted the undivided occupation and control of the entire property and agrees to pay his co-tenants a reasonable compensation for the use of the whole property or for the use of his undivided share, does not create the relation of landlord and tenant. Nor would this relation be created if instead of the parties agreeing that one tenant in common should pay the other what the use of the shares of the others were rea- sonably worth they should fix and agree upon the precise sum of money which one tenant should pay the others for the use of the property. Nor would the use of the word "rent" to signify a share of the monthly income thus paid establish the existence of the relation of landlord and tenant.^" For a tenant in com- mon in the possession of property is not liable to his co-tenants for rent or for use and occupation unless there was an express promise to pay rent or unless the tenant in possession excludes 7 Bird V. Earle, 15 Fla. 447; Cor- » Lsigh v. Dickson, L. R. 12 Q. rigan v. Riley, 26 N. J. Law, 79, B. Div. 194. 783. 10 Smitli v. Smitli, 98 Me. 597, 8 Smith V. Smith, 98 Me. 597, 57 601, 57 Atl. Rep. 999. See, also, Atl. Rep. 997.. Williamson v. Jones, 43 W. Va. 562, 27 S. E. Rep. 411. LEASES TO JOINT OWNERS. 83 his co-tenant from possession in which event he must account for the value of the property.^^ The rule is not altered by the fact that if the tenant in common had not occupied the land no rent V70uld have been received for it.^^ A tenant in common though he does not exclude his co-tenant will be liable to account for the rent if he shall rent the premises to another.^^ "Where a tenant in common goes into possession of the whole of the prem- ises under a lease thereof signed by his co-tenant as lessor and holds over after the expiration of the term he will be presumed to be holding over under the lease and not by virtue of his title as a tenant in common. The ordinary rule as to tenants holding over will then be applicable and the lessor may treat his co-ten- ant as a trespasser or as a tenant from year to year and collect rent according to the terms of the lease which has expired. This rule, however, is confined to cases where the co-tenant expressly leases the whole premises and occupies them solely by virtue of the terms of the lease for if he claims to be in possession under his own title a different rule is invoked.^* Married women who are tenants in common owning their share as separate property, may lease to their co-tenants and may thereafter, without join- ing their husbands as parties plaintiff, sue for rent due.^° If the 11 Terrell v. Cunningliam, 70 ser v. Dresser, 40 Barb. (N. Y.) Ala. 100; Fielder v. Chiles, 73 Ala. 300; Wilcox v. Wilcox, 48 Barb. 567; Hamby v. Wall, 48 Ark. 135, (N. Y.) 327, 329. 2 S. W. Rep. 705, 3 Am. St. Rep. 12 Stephens v. Taylor (Tex. 218; Belknap v. Belknap, 77 Iowa, 1896), 36 S. W. Rep. 1083. 71, 73, 41 N. W. Rep. 568; Israel is Ormer v. Harley, 102 Iowa, V. Israel, 30 Md. 120, 125, 96 Am. 150, 71 N. W. Rep. 241; McCaw v. Dec. 571; Sargent v. Parsons, 12 Barker, 115 Ala. 543, 22 So. Rep. Mass. 149; Holmes v. Williams, 16 131, 132. Minn. 164; Izard v. Bodine, 11 N. i* Valentine v. Healey, 86 Hun J. Eq. 403, 69 Am. Dec. 595; Bucke- (N. Y.) 259, 261; O'Connor v. De- lew V. Snedeker, 27 N. J. Eq. 82; laney, 53 Minn. 247, 249, 54 Valentine v. Healey, 86 Hun, 259, N. W. Rep. 1108, 39 Am. St. Rep. 33 N. Y. Supp. 246, 247; Gaboon 601. An agreement between ten- V. Kinen, 42 Ohio St. 190; Ward ants in common, as to a mode of V. Ward, 40 W. Va. 611. 21 S. E. enjoying the property pending a Rep. 746, 52 Am. St. Rep. 911, 29 L. controversy as to its possession R. A. 449; Hixon v. Bridges (Ky. does not necessarily create the 1897), 38 S. W. Rep 1046; Carver relation of landlord and tenant V. Hoffman, 109 Ind. 54?, 10 N, E. between them. Corrigan v. Riley, Rep. 567; Mumford v. Brown, 1 26 N. J. L. 79. Wend. (N. Y.) 53; IMcKay v. Mum- is Gaboon v, Kinin, 42 Ohio St. ford, 10 Wend. (X. Y.) 351; Ores- 190. 84 LAW OF LANDLORD AND TENANT. relationship of landlord and tenant is established or shown to exist between the tenant in common who is in occupation and those who are not in possession, the rent stipulated for in the instrument of letting may be collected by an action,^® and the parties to the lease, though they are tenants in common of the reversion, have the ordinary rights and obligations of landlord and tenant to one another. Thus the tenant in common who is the landlord has a lien upon the goods of the tenant in common who is a lessee for the rent of the premises.^'' "Where one tenant in common has by a lease demised his interest to his co-tenant if the tenant in common, who was the lessee, continues in the occupation as a tenant at sufferance after the expiration of the lease he will be liable in an action for use and occupation at the suit of his co-tenant/® § 64. Tenants in common as lessors. It is very well settled that one tenant in common cannot make a valid lease of the entire premises, which shall bind his co-tenants.^^ For example, an agreement by one of several tenants in common allowing a stranger to erect sign boards on the land owned in common, does not bind his co-tenants.-" A lease of land owned by several per- sons as tenants in common is valid as to all of them only when all join in its execution or subsequently ratify it. Such a lease is not binding upon those of the tenants in common who neither join in it nor ratify it. The lease is not, however, absolutely void as it is voidable merely by those who did not consent to its execution.2^ The tenants in common who have not actually i« Elliott V. Knight, 64 111. App, McCorniick, 132 111. 104, 22 N. E. 87. Rep. 511; Edmonds v. Mounsey, 17 Grabfelder v. Gazetti (Tex.), 15 Ind. App. 399, 44 N. E. Rep. 196; 26 S. W. Rep. 436. Benoist v. Rothschild. 145 Mo. 18 Leigh V. Dickesen, 54 L. J. Q. 399, 46 S. W. Rep. 1081; Mussey B. 18, 15 Q. B. D. 60, 52 L. T. 790, v. Holt, 24 N. H. 248, 55 Am. Dec. 33 W. R. 538. 234; Hayden v. Patterson, 51 Pa. 10 Lee V. Livingston, 143 Mich. St. 261; Jackson v. O'Rorke (Neb. 203, 206, 106 N. W. Rep. 713. 1904), 98 N. W. Rep. 10G,S; Mar- ao Walker v. Marion, 143 Mich. tens v. O'Connor, 101 Wis. 18, 76 27, 106 N. W. Rep. 400; Moreland N. W. Rep. 774. Tenants in com- V. Strong, 115 Mich. 211. men of land may make a joint 21 De Witt V. Harvey, 4 Gray lease. Massie v. Long, 2 Ohio, (Mass.) 486, 49; Cunningham v. 287, 15 Am. Dec. 547; Doe v. Flem- Pattee, 99 Mass. 248; Traintor v. ing, 2 Ohio, 501. Cole, 120 Mass. 162, 164; Harms v. LEASES TO JOINT OWNERS. 85 joined in the lease may subsequently ratify it expressly or by necessary implication. The acceptance of rent from a lessee by one or more of the tenants in common who have not signed the lease, a demand for rent made by them, their express recog- nition that the occupant is a lessee or any other fact show- ing an understanding on their part that he occupies the rela- tionship of a tenant will be relevant to show a ratification. Their silence and neglect to object to the action of their co-tenant in executing the lease after the fact of its execution or the fact of the occupation of the premises by a person claiming to be in possession as a tenant may also be equivalent to a ratification. The lessee may rightfully assume that one of several tenants in common who alone executed his lease was authorized to do so by his co-tenants from the fact of their acquiescence and acceptance of rent.^^ They may elect after its execution whether they will or will not ratify the acts of their fellow tenants in executing the lease and, if they desire to do this, a lessee who has occupied the premises under the lease cannot escape the payment of rent upon the ground that the lease is void and of no effect. Thus a sealed lease signed by one tenant in conunon for himself indi- vidually and as an agent for the other is not absolutely void nor can a tenant refuse to pay rent under his covenants therein, where he has remained in possession.-^ The lessee of one tenant in common who has entered and re- mained in possession of the premises with the consent of the other joint owners cannot when sued for the rent claim that the lease is void because it was not executed by all. Having enjoyed the possession he must abide by his covenant to pay rent.-* In theory a lease of land by two or more tenants in common is not regarded as one lease by all of them of the premises in their entirety but as several leases by the tenants in common of their undivided sep- arate and respective shares. The relation of landlord and ten- ant does not exist between a lessee of one tenant in common of a 22 Valentine v. Healey, 158 N. 24 Codman v. Hall, 9 Allen Y. 369, 373, 52 N. E. Rep. 1097, re- (Mass.) 335, 338. where one party versirLg 1 App. Div. 502, 37 N. Y. executes a deed, it is his deed Siipp. 287. though the other party does not 23 Harms v. McCormick, 132 111. execute his part. Com. Dig. Fait. 104, 108, 22 N. E. Rep. 511. See C. 2. Moreland v. Strong, 115 Mich. 211, 73 N. W. Rep. 140. 86 LAW OF LANDLORD AND TENANT, portion of the premises and the tenants in common of the lessor "unless the lessee shall in fact attorn to the other tenants in com- nion.^^ For tenants in common, having each several and dis- tinct estates in the land cannot make a joint lease of the whole estate; but any lease made by them shall be taken to be the lease of each of his respective share, and the cross confirmation of each for the share of the other, with no estoppel on either part.-' And though tenants in common join in making a lease using joint words, the lease operates in law as the separate lease of each for his moiety. The estates are several and the reversion is also sev- erable.^^ The lessee of the tenants in common is the lessee of each of them and each one is a lessor and may sue separately for the rent unless it is expressly reserved to them jointly. The lessee of any one tenant in common of such tenant's share in the prop- erty which is owned in common upon his entry thereon, will have the same rights in relation to the other tenants in common which his lessor possessed before the demise.^^ Hence one tenant in com- mon of land cannot regard the lessee of the share of another tenant in common as holding the relation of lessee to the former so as to give him a right to oust him from his possession of the undivided share which has been leased to him.-^ "Where a lessee occupies under a lease from one of two or more tenants in com- mon paying the rent reserved to his lessor, he is not liable for use and occupation to another tenant in common to whom he has not attorned and to whose occupation of his share of the property he has not objected. But by an attornment to the other tenants in common, with the consent of his lessor, his lease becomes bind- ing on both and both are equally bound by its terms as from the beginning.^" 25 Austin V. Ahearne, 61 N. Y. Knight's Case, Moore, 199, 202; 6, 16, 17. Heatlierly d. Worthington v. Wes- 26 Beer v. Beer, 12 C. B. 60, 81, ton, 2 Wils. 232; Clialloner v. 21 L. J. C. P. 124, 16 Jur. 923; Davies, 1 Ld. Ray. 404; Doe d. Doe d. Poole v. Errington, 1 Ad. & Poole v. Errington, 1 Ad. & E. E. 750, 755, 3 N. & M. 646, 1 Mo. 750, 755. & Rob. 343; Joules v. Joules, 1 28 Keay v. Goodwin, 16 Mass. Brown, 39; Trepart's Case, 6 Rep. 1, 4. 14b; Moore v. Fursden, 1 Show, 29 King v. Dickerman, 11 Gray 342. (Mass.) 480. 27 1 Rolle, Abr. Estoppel (B.) so Austin v. Ahearne, 61 N. Y. p. 4, p. 877; Bac. Abr. Joint-Ten- 6, 17. ants (H.); Co. Litt. 45 a., 197 a. LEASES TO JOINT OWNERS. 87 § 65. Actions by tenants in common to recover rent. By the ancient common law of England ^^^ where land owned by ten- ants m common was leased,, the lessors could recover arrears of rent by an action of debt in which all were obliged to join.^^ This is possibly law where the rent is reserved on general terms. But as the ordinary rule is that while it is always allowable and usually advisable for all the tenants in common to join in an action for the rent yet if the payment of the rent is reserved to each of them separately each must bring a separate action. If the leasing is for an entire rent and the lease fails to state that it is reserved to each of the tenants lessors in proportion to his share in the reversion all the tenants ought to join, and the sum recovered is to be divided by the tenants in common according to their respective shares.'^ But there are some authorities which hold that where the rent is reserved in an entire sum it is within the election of the several co-lessors whether they shall or shall not unite in an action to recover the same.^^ And where there has been a severance of the ownership of the rent, understood and acted on alike by the parties, one tenant in common may 30a By the English cases, on a lease by joint tenants reserving the entire rent they may join in an action to recover the rent. If there he a separate reservation of rent to each of them, each must bring a separate action. In trespass or an injury to the possession, ten- ants in common must join. Por- ter V. Bleiler, 17 Barb. (N. Y.) 149, 155. In Decker v. Livington, 15 Johns. (N. Y.) 482, it was said, "two tenants making a lease of their tenements for a term of years, the rent being behind, shall have an action of debt against the lessee, and not divers actions, for the action is in the personalty." In Hill V. Gibbs, 5 Hill (N. Y.) 56, the rule is laid down generally that tenants in common must sue separately when the action is in the realty, and that they must join when the action relates to per- sonalty. Judge Bronson said, "the action is not in the realty merely because it has some relation to land. Thus, debt for rent and covenant on not repairing upon a joint demise is a personal ac- tion, and tenants in common must join. So, too, they must join in actions for trespass or nuisance to the land," he adds, "the English rule was they may, ours say they must join." 31 Co. Litt. 198b, 316, 317. 32 Bryant v. Wells, 56 N. H. 152, 153; Powis v. Smith, 1 D. & R. 490. 5 B. & Aid. 850, 851, 24 R. R. 587. See Harrison v. Barnby, 5 T. R. 246. 2 R. R. 584; Cutting v. Derby, 2 Black, 1075; Porter v. Bleiler, 17 Barb. (N. Y.) 149, 155. 33 Martin v. Crompe, 1 L. Ray. 340; Bradbume v. Botfield, 14 M. 6 W. 567; Last v. Dinn, 28 L. J. Ex. 94; HunUey's Case, 3 Dyer, 326a. 88 LAW OF LANDLORD AND TENANT, sue in his own name for what is due him without joining his co- tenant as a party to the action.^* In the case of a joint demise by two tenants in common without specifying to whom the rent is reserved the rent follows the reversion and on the death of one of them the reversion being split tlie share of the deceased lessor goes to his heir who is thereafter entitled to the rent.^^ § 66. Eifect of a lease by joint owners. A lease of property by one of two joint owners, executed by one of them only, but with the consent and at the request of the other, is a lease of both.^^ Where all those who hold in joint tenancy make a lease of the land which they thus hold and one of the tenants dies the term still endures, though it was a lease at will, and the rent inures to the survivors. The lessee if he shall continue in pos- session after the death of one of two joint tenants may be sued by the survivor for the whole rent thereafter accruing.^^ Other- 34 Wolsey V. Lasher, 35 App. Div. 108, 54 N. Y. Supp. 737; Sanborn V. Randall, 62 N. H. 620. A covenant to pay rent to sev- eral lessors is a joint or a several obligation, according to the inten- tion of the parties. If a lessee covenant with two or more lessors jointly to pay to each a specified share of the rent, the covenant is several, as the interest of each lessor is several, though the cove- nant to pay is joint. Each lessor may therefore sue for his propor- tion of the rent without joining the others. Gray v. Johnson, 14 N. H. 414, 418; Withers v. Bircham, 3 B. & C. 254; James v. Emery, 8 Taunt. 245. 30 Beer v. Beer, 12 C. B. 60, 81, 21 L. J. C. P. 124, 16 Jur. 923. A tenant in common of a rever- sion may maintain an action for an injury to the reversion with- out joining his co-tenant as a plaintiff. So, too, he may bring an action for the breach of a covenant iu a lease running with the land without joining his co-tenants where the severance of the rever- sion takes place after the demise. Roberts v. Holland, 62 L. Q. Q. B. 621, (1893) 1 Q, B. 665, 5 R. 370, 41 W. R. 494. A lease by a widow who is tenant of an estate in dower does not bind the heirs who are tenants in common with her. It gives the lessee no right to the use or possession of the land. The heirs who are co-tenants with the widow may ratify the lease and render it a valid and binding lease on them. The lease, however, is not void, but is voidable merely. Where one of the heirs is an in- fant he cannot ratify it. Where some of the tenants owning land subject to the widow's dower ratify her lease and the others take no action and the lessee goes in pos- session under the lease, an illegal combination between those who had ratified which shall result in an injury to the lessee is action- able. Martens v. O'Connor, 101 Wis. 18-21, 76 N. W. Rep. 774. 30 Wenger v. Raymond, 104 Pa. St. 33, 36, 31 Pitts. L. J. 493. 37 Jackson v. Dunbar, 68 Miss. 288, 290, 10 So. Rep. 38. LEASES TO JOINT OWNERS. 89 wise the survivor would lose the whole fruits and benefit of the survivorship and no injury can come to the lessee as he would have to pay the whole rent in any event.^^ In the case of a tenancy at will where the lessors are joint tenants, either may terminate the will without or even against the consent of the other.^^ Where there is a lease by joint tenants from year to year, either may, without the consent of the other and even against his express wishes, give a notice to quit to the lessee. A notice to quit signed by one of several joint tenants who are lessors is the notice of all.*® If, however, a lease provides that the lessors being joint tenants shall all give notice to quit, a no- tice not signed by all is ineffectual to terminate the term. Thus where a lease provides that the lessor or his heirs or executors may give notice to quit under his or their respective hands and seals, and the lessor dies appointing tliree executors by his will all the executors must unite in the notice to quit and a notice signed by only two of them is not sufficient.*^ One or two joint tenants may demise his or their portion to another so as to create the relation of landlord and tenant between them with a right to distrain as to rent in arrears.*- This would be the case where one joint tenant for the pajonent of an annual sum places another in exclusive possession of the whole of the prem- ises and retires from its possession. The parties would then be estopped to deny they were landlord and tenant.*^ § 67. The right of joint tenants to the rent. Where all the joint tenants unite in a lease reserving rent to all any one of 38 Henstead's Case, 5 Coke, 10. that tenancy; the tenant has a 39 Co. Litt. 186; Whayman v. right, upon such a notice, to give Chaplin, 3 Taunt. 120. up the whole, and, unless he comes ioDoe d. Aslin v. Summersett, to a new arrangement with the 1 B. & Ad. 13&, 141, in which case other joint tenants, as to their Lord Tenterden, C. J., said: shares he is compellable to do so." "Upon a joint demise by joint ten- ■*! Right v. Cufhell, 5 Esp. 149, ants, upon a tenancy from year to 5 East, 491, 499. If the lease does year, the true character of the not require a notice by all execu- tenancy is this, not that the tenant tors, a notice by one of two or holds of each, the share of each more executors will be sufficient, so long as he and each shall *2 Cowper v. Fletcher, 6 B. & S. please, but that he holds the whole 464, 473, 34 L. J. Q. B. 187, 11 of all so long as he and all shall Jur. (N. S.) 780, 12 L. T. 420, 13 please; and as soon as any one of W. R. 739; Coke, Litt. 186a, Bac. the joint tenants gives a notice to Abr. Leases (1), 5, p. 776. quit, he effectually puts an end to *3 Pleadall's Case, 2 Leon. 259. 90 LAW OF LANDLORD AND TENANT. them may collect the rent and his release will release all the others.^* And a reservation of rent to one joint tenant only enures to the benefit of all.*^ One joint tenant cannot sue sep- arately for his share of the rent or for the rent which is due all of them. He must join with him as parties plaintiff in any and eveiy action regarding the property or its income all the joint tenants/^ On the death of one or more joint tenants who are lessors, the right of action to collect the rent is in the survivors.*^ On the death of one of two joint lessors, the survivor is the prop- er party to sue to recover for a breach of a covenant in the lease. Under such circumstances no right of action passes to the per- sonal representative of the deceased lessor.** And where a joint lease was executed by the deceased lessor as a guardian, his ward, after attaining his majority, may join with the sur- viving lessor to enforce a covenant made for his benefit.'*" Inas- much as all the authorities hold that parceners whatever may be their number, constitute but one heir and hold by unity of title as well as by unity of interest, it follows that none of them can sue for rent or for use and occupation or distrain for the same without joining the others.^" Where one joint tenant receives more than his share of the rents from a lessee of the lands he is accountable in equity to his co-tenants for as much of the 44 Newman v. Keffer, 18 Fed. (N. Y.) 149; Cobb v. Kidd, 8 Fed. Cases, No. 10,177; Robinson v. Rep. 695, 696. Contra, Sanborn Hoffman, 1 M. & P. 474, 4 Ring. v. Randal], 62 N. H. 620. If after 562, 3 Car. & P. 234, 6 L. J. (0. S.) an action has been commenced by C. P. 113, 29 R. R. 627. several joint tenants to recover 45 Sacheverel v. Frigate, 1 Vent. rent one dies, the action may be 161; Co. Litt. 47a. 192a, 214a. prosecuted by the survivors. Cobb 46 Dewey v. Lambier, 7 Cal. 347; v. Kidd, 8 Fed. Rep. 695, 696. EllLs V. Culver, 2 Har. (Del.) 129; 47 .Jackson v. Dunbar, 68 Miss. Frazier v. Spear, 2 Bibb (Ky.) 288, 10 So, Rep. 38; Bryan v. 385; Bullock v. Hayward, 10 Allen Averett, 21 Ga. 401, 402, 68 Am. (Mass.) 460; Smoot v. Wathen, 8 Dec. 464. Mo. 522; Pickering v. Pickering, 11 48 Salisbury v. Shirley, 66 Cal. N. H. 141; Mobley v. Bruner, 59 Pa. 223, 226. St. 481, 98 Am. Dec. 360; Bonoyan 49 Salisbury v. Shirley, 66 Cal. V. Palmer, 5 Mod. 171; Decker y, 223, 225. Livingston, 15 Johns. (N. Y.) 479; co Decharms v. Harwood, 4 Hill V. Gibbs, 5 Hill (N. Y.) 56; Maule & Sel. 400, 10 Bing. 526, Sherman v. Ballou, 8 Cow. (N. Y.) 529, 3 L. J. C. P. 198; Stedman v. 304; Porter v. Bleiler, 17 Barb. Bates, 1 Ld. Rajin. 640. LEASES TO JOINT OWNERS. 91 rents as he has collected which exceeds what he is entitled to.^^ Where rent has become due to several joint lessors an assignment of the revereion by one of them does not alter the nature of the bygone rent and hence the right of distress is lost.^^ § 68. The liability of joint tenants for rent. "Where the premises are leased to two or more tenants jointly all are both severally and jointly liable according to the exact language of the covenant to pay rent. Under a lease to two persons jointly, both are liable for the rent though only one has occupied. The occupation of one makes both liable on the joint and several covenant to pay the rent.^^ For the enti-y of one of two or more joint lessees under a lease which is signed by all at the date which is designated in the lease for the beginning of the term is the entry of all the lessees. All are bound thereafter to pay the rent, or for use and occupation though some never enter upon the premises.'** On the other hand, if two persons to whom a lease is made as joint lessees enter, both are liable upon the covenant to pay rent though only one of them has in effect exe- cuted the lease.^^ Where the liability of joint lessees is both joint and several, a judgment for rent or for use and occupa- tion may be recovered against any one of them separately.^^ Or a judgment may be recovered against them jointly and severally, and execution issued against only one of them in the discretion of the lessor. One of several joint lessees may show, when sued on the joint obligation to pay rent, that the lessor has, for a valuable consideration, released the joint and several liability and has accepted in its place a separate obligation and promise to pay rent for each joint lessee.^'' Among, or between joint lessees it will be presumed that relations of a confidential char- acter exist. They may be regarded as qiiasi trustees towards each other so that no benefit can be acquired by any one of them from the lessor under the lease which shall not enure to the bene- 61 Nelson's Heirs v. Clay's Heirs, 657, 665; Glen v. Dungey, 4 Exch. 1 J. J. Marsh. (Ky.) 138, 23 Am. 61. Dec. 387. ss McLaughlin v. McGovem, 34 52Stavely v. Alcock. 16 Q. B. Barb. (N. Y.) 208. 636, 20 L. J. Q. B. 320, 15 Jur. 628. 56 Ding v. Kennedy, 7 Colo. App. 63 Kendall v. Carland, 5 Cush. 72, 41 Pac. Rep. 1112; Wolz v. San- (Mass.) 74, 80. ford. 10 111. App. 136. 6* Goshorn v. Stewart, 15 W. Va. ? ' Walker v. Githens, 156 Pa. St. 178, 181, 27 Atl. Rep. 36. 92 LAW OF LANDLORD AND TENANT. fit of his co-lessees. Thus, a renewal of a lease in which two or more are jointly interested as lessees which is procured in the name of one lessee only, but which was intended to be for the benefit of all will enure to the benefit of all the joint lessees.^^ One of several lessees jointly and severally liable to pay rent who is compelled to pay the whole rent which becomes due under a covenant to pay rent has an action for contribution against those who are jointly liable with him. This is equally true in the case of a covenant by lessees jointly liable to repair the premises. But one tenant in common of a house who expends money on ordinary repairs, not being such as are necessary to prevent the house from going to ruin, has no right of action against a co-tenant for contribution.^^ § 69. The liability for rent of co-partners in business. The members of a firm which is a tenant under a lease are liable jointly and severally on the covenant to pay rent and also for use and occupation. A signature by the firm name subscribed by one partner will be binding upon all upon the theory that each partner is in law the agent of all. So, a lease signed by* one partner individually as lessee and witnessed by all the others who signed their names individually binds the firm.*^" But a lease in writing under seal to several partners which is only signed by one for himself and as an agent for the other partners is not binding upon the others unless there is an agency also under seal.®^ One who becomes a partner after the execution of a lease by his co-partners becomes liable thereby individually and jointly for the rent to the same extent as those who have executed the lease. But this rule applies only where the lease has actually become in some manner one of the partnership as- sets.®^ A lease by one member of a firm owning real estate is binding upon all where it is authorized or ratified by them. A lease of real estate which is brought into a partnership business and is used as partnership property made by one partner in his 68 Burrell v. Bull, 3 Sandf. Ch. eo Busman v. Ganster, 72 Pa. St. (N. Y.) 15. 285. BO Leigh V. Dickeson, 54 L. J. ei Snyder v. May, 19 Pa. St. 235, Q. B. 18, 15 Q. B. D. 60, 52 L. T. 240. 790, 33 W. R. 538. 02 Guinzburg v. Claude, 28 Mo. App. 258. LEASES TO JOINT OWNERS. 93 own name to a third party will not inure to his individual bene- fit. It will be for the benefit of the firm and he will be regarded as a trustee for the firm to the extent of the rents received by him.^^ Where there is a lease by partners and one of them dies the other may sue for the rent as a survivor. This is the rule where they sue on the covenant to pay rent. A surviving part- ner, however, who sues for use and occupation taking place after the death of the other partner may sue in his iudvidual name and for his own benefit.®* 63 Moderwell v. Mullison, 21 Pa. «* Wheatley v. Boyd, 7 Ex. 20. St. 257. CHAPTER IV. LEASES BY AGENTS. 5 70. The agent's authority to lease must be strictly pursued. 71. The apparent authority of the agent 72. Lease under seal made by an agent. 73. An agent's authority in writing under the statute of frauds. 74. The ratification of a lease executed by an agent without authority from the principal. 75. The fraud and false representations by an agent. 76. The authority of an agent to accept possession on abandonment by the tenant. 77. The power of an agent appointed to manage property. 78. "WTiere the agent renders himself personally liable. 79. Undisclosed principal where a lease is under seal. § 70. The agent's authority to lease must be strictly pursued. An agent whether he has been authorized in writing or by parol to lease the premises, must proceed strictly according to the powers which have been conferred upon him by his principal, and if he exceeds his authority his principal is not bound by his acts.^ Thus an agent who has a general power to make leases for his principal does not, by implication, possess the power to grant leases of his principal's lands which shall contain particu- lar or unusual covenants or which confer special and peculiar privileges upon the tenant. So an agent who has merely the power to lease for a term of years does not bind his principal to give a renewal where, in making a lease for a term of years, he inserts in the lease, without the consent of his principal, a clause giving the tenant the right to a renewal.^ The authority vested in an agent to make a lease for one year does not permit him to bind his principal by a lease for a longer term. Nor will an 1 "An attorney either at law or or client, unless authority for such in fact iias no authority either to purpose is expressly given." How- make a lease, or to ratify or con- ard v. Carpenter, 11 Md. 259, 281. firm an imperfect one, or to per- - Schumacher v. Pabst Brewing feet an inchoate agreement for a Co., 78 Minn. 50, 80 N. W. Rep. lease of property of his principal 838. LEASES BY AGENTS. 95 agent who has power to lease a tract of land at a rent specified by implication have power to lease a portion of the tract.^ An agent who has the authority to lease his principal's land which is vacant and unimproved cannot bind his principal by a clause in the lease to build houses or to make improvements upon the land.'* Even though the agency be created by an instrument conferring very wide powers and discretion upon him, nothing will be implied in favor of the agent, and against the principal. Thus a power of attorney by which the attorney is to hold pos- session of a farm providing that it is to be "the same as if it were your owtq, I intend it will be" does not empower the at- torney to lease it to a creditor and to apply a part of the rent on his own debt.^ Some of the cases, however, construe the power of an agent to lease with considerable more liberality Thus, a general power to lease, to rent or to let conferred upon an agent has been considered sufficient, not only to enable him to make a new lease, but also to extend a lease which has expired.® Usually a general agent of the landlord or a general manager of his property has a more extensive power in relation to leasing his principal's property than an agent whose sole duty it is to col- lect rent. The power and authority of an agent to collect rent are very limited. This matter is regulated by the general rules of the law of agency. It has been held that an agent who has the general and exclusive charge of the business of his principal may have the power to modify the terms of existing leases. Thus, in New York it has been held that a general agent has power to modify the express terms of a lease which was executed by his principal by agreeing that a tenant of premises which have been destroyed by fire may occupy the premises rent free until re- pairs have been made or until the premises have been restored to a tenantable condition. The modification is valid and binding on the principal though not made with his knowledge, as the remaining in possession of the tenant is the consideration of the agreement by the agent for under the New York statute the ten- ant has the right to abandon the premises and the rent ceases.'^ 3 Borderre v. Den, 106 Cal. 594, e Pittsburg Mfg. Co. v. Fidelity 600, 39 Pac. Rep. 94(3. Title & Trust Co., 207 Pa. St. 223, ■* Peddicord v. Berk, 74 Kan. 236, 56 Atl. Rep. 436. 86 Pac. Rep. 465. ■ Ireland t. Hyde, 69 N. Y. Supp, c Ward V. Thrustin, 40 Ohio St. 8S9. 347. 96 LAW OF LANDLORD AND TENANT. An agent who is empowered to attend to the repairs of premises owned by his principal will not be permitted to exceed his au- thority. Doubtless his authority will permit him to bind his principal by contracts to furnish labor and material for the or- dinarj^ repairs of the premises leaving it for the court to deter- mine what shall constitute ordinary repairs. But he has little, if any, power to bind his principal in other respects. Thus, for example, his representation as to the safety or healthfulness of the premises made to the tenant when the lease is executed are not binding on the landlord. His power to bind his principal by statements as to the condition of the premises is not as exten- sive as that of an agent who is employed to rent the premises.* § 71. The apparent authority of the agent. A lessee of land dealing with an agent who has an apparent authority to make the lease, may rely upon that appearance of authority, and the principal will be bound by the acts of the agent within the scope of the apparent authority. But, the lessee who relies upon such apparent authority to sustain a lease which has been made by the agent must either show that the agent has done similar acts in excess of his real authority which were subsequently ratified by the principal or that the particular lease in question was actually ratified by the principal either expressly or by impli- cation. Generally speaking, an agent whom the landlord has appointed merely for the purpose of collecting the rents of his real estate cannot be regarded as having an implied power to lease the premises. He is not a general agent but merely a special agent for a single purpose. Of course, his actions in making a lease may be ratified by his principal as would be the ease where the agent collected the rent on a lease made by him, and the principal, knowing of the making of the lease, accepted and retained the rent. According to some authorities, the agent whose sole power is to collect the rents may make a lease at will which is binding on the landlord, for it is said that, having to make a return of the rents to his principal, the latter might suffer a loss if the agent were not by implication given the power to lease the premises at will.® An agent whose duties are merely the care and supervision of land, as for example, a steward or « Daley v. Quick, 33 Pac. Rep. o Woodfalls' Landlord & Tenant, 859, 99 Cal. 179. C3; Tibbitts v. Moore, 19 N. H. 369. LEASES BY AGENTS. C7 land atrent, cannot nsiially bind his principal either by a con- tract to make a lease or by a lease itself.^" But in one case it was held that the power vested in a steward to manage and superintend a landed estate will authorize him to bind his prin- cipal by an agreement to make the usual and customary leases according to the nature and extent of the property.^^ But, it has been held in England that a farm bailiff upon whom express authority had been conferred to lease lands from year to year upon the ordinary terms which were recognized in the neighbor- hood, and to receive the rents accruing under such leases, has not the implied authority from such circumstances to let the land upon unusual terms unknown to the owner and to insert express stipulations in the lease? without express authority to do so on the part of his principal. ^^ So, also, a general agent among whose duties is that of collecting rents, making repairs and at- tending to the care of the premises belonging to a non-resident landlord has no power to change the terms of existing leases by discounting rents which are not due and by accepting for the same less than is due." § 72. Lease under seal made by an agent. At the common law where a lease executed by an agent is executed under seal, or where a lease must be executed under seal and an agent exe- cutes it, his authority to execute it must also be under seal.^* On the other hand, the authority of the agent to make a parol loColler V. Gardner, 21 Beav. (N. Car. Law) 218, 220; Hanford 151. . V. McNair, 9 Wend. (N. Y.) 54; 11 Peers v. Sneyd, 17 Beav. 151. Blood v. Goodrich., 9 Wend. (N. 12 Turner v. Hutchinson, 2 F. & Y.) 68; Cooper v. Rankin, 5 Binn. F. 185. (Pa.) 612; .Gorden v. Buckley, 14 isHalladay v. Underwood, 90 S. & R. (Pa.) 331; Cain v. Head, 111. App. 130. 1 Coldw. (Tenn.) 163; Turbeville 14 As to the rule in the case of d. Darden v. Ryan, 1 Humph, deeds generally, see Rowe V. Ware, (Tenn.) 113; Harrison v. Jack- 30 Ga. 278; Bragg v. Fesenden, 11 son, 7 T. R. 207; 3 Bacon's Abr. 111. 544; Maus v. Worthing, 4 111. tit. "Leases," 408. The only ex- 20, 27 (Breeze, J., dissenting) ; ception to this rule occurs in a Rhodes v. Louthain, 8 Blackf. case where the agent or attorney (Ind.) 413; Wheeler v. Nivins, 34 affixes the seal and signs the name Me. 54; Banergee v. Hevey, 5 of the principal in the actual pres- Mass. 11, 23; Shuetz v. Bailej', 40 ence of the latter. Maus v. War- Me. 69, 75; Smith v. Perry, 29 N. thing, 4 111. 27. J. L. 74; Kime v. Brooks. 9 Ired. 7 98 LAW OF LANDLORD AND TENANT. lease which is to be executed by him for his principal or his au- thority to make an agreement for a lease, which is to be executed under seal by the principal, need not be in writing.^^ An agent may be authorized by parol to make a lease which may be valid without writing.^'^ And an agent may be authorized by parol, to execute a written contract binding his principal to make a lease for more than one year.^^ The common law rule which re- quires the authority of an agent to execute an instrument under seal to be evidenced by some writing itself under seal is admit- tedly technical and the courts in modern times have sought strenuously to relax it. No authority under seal was required to execute a writing not under seal. And the reason of this is that such writings not under seal, such as notes and the like are usual- ly barred by statute unless they are sued on and enforced within a comparatively short period. But deeds being usually evi- dence of the title to real property and being capable of being produced to enforce rights after some considerable lapse of time when the conditions and circumstances under which they were executed by the agent are incapable or at least difficult to be proved are on an entirely different footing. In such cases it is but reasonable in order to avoid forgery and fraud in the use of deeds to require the person who relies upon the deed to show, in a case where it is executed by an agent, by some writing of equal solemnity and formality with the instrument he claims under, that the agent was authorized to execute it.^^ And where an agent has without authority under seal, executed a sealed in- strument, the subsequent action of the principal in executing an- other instrument under seal to take the place of the invalid in- strument constitutes such a ratification of the latter as will vali- date it from the time of ite execution,^^ and estop the principal from asserting its invalidity. So, where an agent without any authority under seal, executes a sealed instrument in the name of his principal and, on the instrument being shown to the prin- iB Brown V. Eaton, 21 Minn. 409; 15 So. Rep. 44; Curtis v. Blair, 26 Coles V. Trecothick, 9 Ves. Sr. 234, Miss. 309. 250. 18 Kime v. Brooks, 9 Ired. Law i«M'Gunnagle v. Thornton, 10 (N. Car.) 218,221. S. & R. (Pa.) 251, 253; McDowell J» Bragg v. Fesenden, 11 111. 544, V. Simpson, 3 Watts (Pa.) 129. 545. 17 Lobdell V. Mason, 71 Miss. 936, LEASES BY AGENTS. 99 cipal after his name and seal have been put upon it by the aofent, the principal acknowledges it to be his act and deed, or uses words which are equivalent to such acknowledgment, its ratification will be implied and it will be valid ah initio.-'^ § 73. The agent's authority in writing under the statute of frauds. In some states under the statute of frauds, the agent's authority to make a lease for more than one j'car, must be in writing.'^ Where it is provided by statute that no lease of lands to exceed one year can be executed by an agent unless he is authorized in writing to do so, a lease for more than one year which is executed by the agent of the lessor and which is deliv- ered to the lessee is void if the agent was not authorized in writ- ing to sign the lease. And the fact that the duplicate copy re- tained by the principal was afterwards signed by him does not validate the lease w^here it does not appear that this signing was ever brought to the knowledge of the lessee.-^ In the absence of statute, a lease for one year in writing and not under seal, may be executed by an agent whose authority is created by parol.^^ Under the statute of frauds, a lease for a term of three years, though signed by an agent, is not binding upon the lessee unless the agent's authority from the lessor is in writing.^* So the agent must be authorized in writing in order to bind his prin- cipal in the adoption of the lease for more than one year.-^ The performance of the conditions of an invalid lease by the lessee wiU take the lease out of the statute of frauds. Thus a lessee who has been in the possession of the premises and paid rent for more than a year, cannot object that a lease in writing is in- valid under the statute of frauds, or refuse to pay rent because it was executed by an agent who was not authorized in writing 20 Rhode v. Louthain, 8 Blackf. App. 549; Hoover v. Pacific Oil (Ind.) 413. Co., 41 Mo. App. 317. 2iCal. Civ. Code, § 1624, subd. 5; 24 Hoover v. Pacific Oil Co., 41 How. St. Mich., § 6179. Mo. App. 317; Lehman v. Nolting, 22 Ohesebrough v. Pingree, 72 56 Mo. App. 549; Chesebrough v. Mich. 438, 445, 40 N. W. Rep. 747, Pingree, 72 Mich. 438, 40 N. W. 1 L. R. A. 529. See, also. Ham- Rep. 747. See, also, Borderre v. mond V. "Winchester, 82 Ala. 470, 2 Den, 106 Cal. 594, 600, 39 Pac. Rep. So. Rep. 892; Darity v. Darity 946. (Tex.), 71 S. W. Rep. 950. 25 Sheo v. Seeling, 89 Mo. App. 23 Lehman v. Nolting, 56 Mo. 146. 100 LAW OF LANDLORD AND TENANT. by the landlord to execute the lease. ^^ But it has also been held that a lease made by an agent which is absolutely void under the statute of frauds because the authority of the agent to make the written lease is not in writing, is not good as an oral lease for a year. If the statute expressly declares such lease to be void, it cannot be valid for any portion of time however short.-^ § 74. The ratification of a lease executed by an agent with- out authority from the principal. Upon general principles of the law of agency there can be no question that a lease which has been executed by an agent in the name of his principal which either exceeds the authority of the agent, or which the agent had no authority to execute, may be ratified and subse- quently confirmed by the principal so that it will become valid and binding upon him. The principal may ratify and validate the invalid action of the agent, either by express oral language, by writing or by some act, such as receiving rent, which will estop him from afterwards rejecting the lease.-^ A ratification by the principal may be inferred from his acts and conduct as well as from his express language. In order to constitute a rati- fication by conduct, the acts and conduct which are relied upon must be clearly proven to the satisfaction of the jury. No rati- fication of the lease will be implied from weak or doubtful cir- cumstances which are capable of a construction which is consis- tent with a repudiation of the action of the agent. The action of the principal in putting a tenant in possession and receiving rent from him which agrees with the terms of the lease is a ratification by the principal.^" The knowledge of the action of 26Tean v. Pline, 60 Mich. 385, Bank v. Mortley, 19 Wis. 62; 27 N. W. Rep. 557. Trout v. McDonald, 83 Pa. St. 144; 27 Borderre v. Den, 106 Cal. 594, Ducaii v. Hartman, 143 Pa. St. 600, 39 Pac. Rep. 946. 595, 22 Atl. Rep. 1099, 48 L. I. 441, 28 Irons V. Reyburn, 11 Ark. 378; re-affirmed, 149 P. St. 114, 24 Atl. Borderre v. Den, 106 Cal. 594, 609, Rep. 190. 39 Pac. Rep. 946; Bragg v. Fessen- 29 Bless v. Jenkins, 129 Mo. 647, den, 11 111. 544; Powell v. Gos- 31 S. W. Rep. 938. The failure of som, 18 B. Mon. (Ky.) 179, 192; a married woman to notify one Adams v. Power, 52 Miss. 828, 833 ; who leased her property from her Anderson v. Connor, 87 N. Y. Supp. husband in the name of the hus- 449; Ovcrby v. Overby, 18 La. Ann. band, and without the knowledge 546; Baines v. Burbridge, 15 La. or consent of the married woman, Ann. 628; Breithaupt v. Thurmond, of her ownership, does not estop 3 Rich. (S. C.) 216; Wisconsin her from disputing the validity of LEASES BY AGENTS. 101 the agent in signing and executing the lease must be brought home to the principal and when knowing exactly what the agent has done in leasing the property he enjoys the benefits and fruits of the agent's acts, he will not be permitted to repudiate his acts. Under this rule it is unquestioned that the receipt of rent by the principal under a lease which had been made by the agent without the authority of the principal would constitute a rati- fication of the lease. ^** And where the principal receives rent after the execution of a lease by an agent without authority or where the lease is invalid because not under seal, equity will compel the principal to ratify the lease, and will order a seal attached thereto and direct the principal to do anything eise which will validate the lease. "^ Where the actions and eon- duct of the principal are relied upon to constitute a ratification of a lease made by an agent without authority, it must appear that the principal was acting with a full knowledge of all the material facts in the case. For the actions of the principal done in complete ignorance of the conduct of the agent cannot be re- garded in law as a ratification.^- Where an agent of a landlord having power to rent for one year only, rents for two years, and during the second year the principal received the rent agreed upon, it is a question for the jury to determine whether the prin- cipal ratified the letting by the agent. The jury might infer from such evidence that he was a general agent for the renting of the property. If being such, he was limited by instructions the lease. The fact that the prop- Reid v. Hibbard, 6 "Wis. 175; Wis- erty stood in the name of the true consin Bank v. Morley, 19 Wis. 62. owner on the record is always ma- 3i Story on Agency, § 239. terial. So it is not material, so far 32 Chapman v. Lee, 47 Ala. 143; as the power of the wife is con- Mapp v. Phillips, 32 Ga. 72; Tid- cerned to deny the validity of the rick v. Rice, 13 Iowa, 214, 221; lease, that the lessee always paid Dickinson v. Conway, 12 Allen his rent to the husband, and in do- (Mass.) 487; Hammond v. Han- ing so always supposed he was the nin, 21 Mich. 374; Gulick v. Gro- sole owner of the premises. Long ver, 33 N. J. Law, 463; Seymour V. Poth, 73 N. Y. St. Rep. 251, 37 v. Wyckoff, 10 N. Y. 213; Meehan N. Y. Supp. 670, 16 Misc. 85. v. Forrester, 52 N. Y. 277; Wright soRoby V. Cossitt, 78 111. 638; v. Burbank, 64 Pa. St. 247; Will- Haynes v. Seachrest, 13 Iowa, iams v. Storm, 6 Coldw. (Tenn.) 455; Ruggles v. "Washington Co., 203, 207; "Vincent v. Rather, 31 3 Mo. 496; Hastings v. Bangor Tex. 77. House Proprietors, 18 Me. 436; 102 LAW OF LANDLORD AND TENANT, to rent for one year, and in violation of his instructions, rented for two years, slight evidence of ratification by the landlord would be sufficient. Under such circumstances the principal is responsible to the innocent third persons not having knowledge of a limitation upon the power of an agent to lease the premises for the act of the agent; providing he does not promptly re- pudiate such acts before the tenant has entered.^^ § 75. Fraud and false representations by an agent. The question of the binding character upon a principal, of fraudu- lent conduct and false representation by the agent in the leas- ing of property has frequently been discussed. Unquestionably a principal who is proved to have instructed his agent to mis- represent the condition of the premises, or the rate of rent whic!i he has received from them, or who at the time of the execution of the lease, knows that his agent has been guilty of fraud or falsehood in this respect, though not by his direction, will be held responsible for his agent's acts. Thus, if an owner of property, knowing that the premises were unsafe, uninhabitable or objectionable on account of a nuisance existing in or near them should employ an agent to lease the same who was ignorant of these facts ; and the agent, being thus ignorant of these facts represents the premises as being desirable and safe the principal would be liable for the representation of his agent. So. where the owner of a house who employed an agent to let it for him and stated to the agent that it was in good condition and unobjec- tionable in every respect, and the agent, relying on these state- ments, rented the house which was objectionable because it was located next door to a disorderly house, it was held that the lease was not binding on the tenant because of the misrepresen- tation made by the agent.^^ § 76. The authority of an agent to accept possession on aban- donment by the tenant. The tenant must prove that an agent to wliom he may have delivered the keys of the premises had authority as the agent of the landlord to accept them and thus assent to a surrender. The agent's authority to assent to a sur- render will not be inferred from authority in the agent to col- lect the rent of the premises. Nor will the failure, neglect or 82 Reynolds v. Davison, 31 Md. 33 Fuller v. "Wilson, 3 Q. B. 58, 662, 688. 68; Bennett v. Judson, 21 N. Y. 238. LEASES BY AGENTS. 103 refusal of the landlord to return a tey delivered to the agent by the tenant on the abandonment of the premises by the latter amount to a ratification of the acceptance by the acrent and create a surrender by operation of law where the landlord does nothing else conclusively indicating an intention on his part to accept the keys in token of surrender.^* The power to accept a new tenant in the case of a lease executed under seal for a term which exceeds a year and to release the former tenant by the acceptance of his surrender must be expressly conferred and will not be implied. The mere fact that the agent has general power to act for the landlord in the care of his prop- erty does not necessarily confer on the agent the power to ac- cept a surrender of the premises or to make a new lease to a new tenant. Thus, an agent whose duties are to make leases, to receive rents, to give receipts for the same and to allow for the expenses of repairs made by tenants, possesses no implied power to accept a Siurrender of a lease which is in writing and which is under seal.^^ The surrender of a key to an agent of this character, unless with the direct consent of the landlord, or with his subsequent ratification, does not constitute a sur- render by implication of law. But a general agent will have his power to act for the landlord given a fairly reasonable construction. An agreement bj^ him to pay the expenses which a tenant might incur in moving if he would promptly move from the premises on the expiration of his term is within the scope of the power of a general agent who has power to lease, to collect rent and to look after the premises generally.^® § 77. The power of an agent appointed to manage property. Real estate agents who make it their business to let houses or other real estate, are, if shown to be in possession of the keys of the house, at least prima facie authorized to grant leases for the premises upon such terms as they may see fit to make and also to give the tenant possesion. But this presumption may be 34 Blake v. Dick, 15 Mont. 236, 35 Wallace v. Dinning, 11 Misc. 38 Pac. Rep. 1072; Thomas v. Nel- Rep. 117, 32 N. Y. Supp. 159; Wil- son, 69 N. Y. 118; Baylis v. Pren- son v. Lester, 64 Barb. (N. Y.) tice, 75 N. Y. 604; Ryan v. Jones, 431, 433. 20 N. Y. Supp. 842, 2 Misc. Rep. so Creighton v. Finlayson, 46 65; Barkley v. McCue, 55 N. Y. Neb. 457, 459, 64 N. W. 1103. Supp. 608, 25 Misc. Rep. 738; Barkley v. Holt, 84 N. Y. S. 957. 104 LAW OF LANDLORD AND TENANT. rebutted by proof on the part of the landlord that the authority of the agent was restricted by him. It is the duty of the tenant, in dealing with the agent, to ascertain the limits and character of the authority which the principal has delegated to him. The existence and scope of the authority of the real estate agent to let premises and to bind his principal is to be determined in the same manner as the authority of any other sort of agent. The court in determining the scope of his authority will take into consideration the facts in the case, the usages of the locality if there are any and particularly the conduct of the principal in prior transactions with the agent. A written authority "to act as our agent for our properties and to man- age said properties" is very general and at the same time very vague in its terms. The precise limit of a power to manage land would depend largely upon the circumstances and conditions of the land as they are shown in the evidence. On the one hand the power to manage land would clearly not authorize an agent to sell it. It is also clear that it would clearly authorize him to make leases in the ordinary form and on the ordinary terms. Construing this power it may safely be said that a power to manage land implies authority in the agent to do all that had been done prior to the creation of the power by the principal, or by other persons with the express or implied assent or con- sent of the principal except to sell the land or to mortgage it. In other words it is implied that the agent may do what is usual and customary to do with property of the kind in that locality. Under such a power the agent could lease farmland for terms and on conditions usual for farms in the vicinity where the land is located. And an agent having such power could unquestionably lease dwelling or business property, lo- cated in a town or city, upon such terms and conditions as are customary in the town or city where the property is located. So, for illustration, if there were an open mine on the land the management of it might include the working or leasing of the open mine by the agent. And on the other hand the opening of a mine where none had been opened before, or the making of a lease conferring the power to open mines, would be a doubtful act unless perhaps the land were located in a mining country and its use for other purposes is thereby necessarily limited. But an agent with power to manage property, or with a general LEASES BY AGENTS. 105 power for a limited period, has no power thereby to make a lease for a long term which shall extend beyond the period during which he has a right to act. Thus, an agent to manage land appointed for one year only cannot grant a lease for fif- teen years of the sole right to quarry, take or sell stone or coal from the land which is already improved and is valuable min- eral land. And the consideration in this case would be that this was not a grant of an annual profit which, when taken out of the land, would be replaced by the operation of nature, but a permanent diminution of the body and value of the land itself which would be similar to the opening of a mine where none had been opened before and hence would be clearly not within the power of the agent appointed for the ordinary manage- ment of property.^' An agent who is instructed or who has an agent's power to lease to a responsible tenant is answerable in damages to his landlord if he fails to exercise reasonable dili- gence in ascertaining the responsibility of the tenant. He must make the same inquiry regarding the tenant as a prudent man would make in carrying on his own affairs.^^ So, an agent authorized to let premises must act in good faith to his prin- cipal and he cannot let the premises to himself without the consent of his principal given after a full disclosure of all the circumstances by the agent to the principal."' § 78. Where the agent renders himself personally liable. In order to escape personal liability, the agent who executes the lease should always sign the name of his principal by himself as agent, thus, ''John Doe by Richard Rowe his agent" or "his attorney" as the case may be.*" For in the case of a lea.se or other writing which is signed "John Doe agent for Richard 37 Duncan v. Hartman, 143 Pa. S.) 15o; Green v. Keppe, 18 C. B. St. 595, 606, 22 Atl. Rep. 1099, 24 149; Deslandes v. Gregory, 2 E. & Am. St. Rep. 570; Id., 149 Pa. St. E. 602; Clayton v. Souther, 1 Exch. 114, 24 Atl. Rep. 190. 717; Parker v. Winslow, 7 El. & 38 Hayes v. Tindall, 1 B. & S. B. 492. A person who describes 296; Hemmenway v. Hemmenway, himself in an agreement to make 5 Pick. (Mass.) 389; Moore v. a lease as making it on behalf of Gholson, 34 Miss. 372; Anthony v. another will be personally liable Smith, 9 Humph. (Tenn.) 508. if in subsequent part of it he prom- 39 Whichcote v. Lawrence, 3 ises that he will himself execute it. Ves. 746. Norton v. Herron, 1 Car. & P. 648, 40 Cooke V. Wilson, 1 C. B. (N. R. & M. 229, 28 R. R. 797. 106 LAW OF LANDLORD AND TENANT. Rowe" or '"for John Doe, Richard Rowe agent" all the words that follow after the name of the agent are treated as mere descriptio personae, and the lease or other writing will be bind- ing on the agent individually upon the ground that he has not disclosed the name of his principal.*^ But the principal and not the agent will be bound if it appear from the language of the lease itself that it was signed by the agent for the prin- cipal and not for the agent himself.*^^ A person who, on being sued for rent of premises leased by him in his own name, claims that he was the agent of another in making the lease, will have the burden on him to convince the court of that fact.*^ Thus an authorized agent who executes a lease under seal in which he states he is the agent of a disclosed and known principal, and who assumes to contract for such principal only and not for liimself personally or individually is not bound by the lease per- sonally or individually though he has signed his individual name.*^ So also, a lease which reads "We have leased to" a lessee named, and which is signed "L. and Son, agents for W." is the lease of the principal, and not of the agents.** And it has been held that the mere fact alone, that an agent executes a lease in his own name does not make him individually liable thereon, unless the language of the lease shows a clear intent that he shall be liable individually." The fact that a lease is executed by an agent in his own name, does not alone neces- sarily render it invalid.** It is binding on the lessee who is estopped to show that the lessor, though styling himself an Frambach v. Frank, 33 Colo. (S. Car.) 501; Comb's Case, 9 Rep. 529, 81 Pac. Rep. 247. 76; White v. Cuyler, 6 T. R. 17C; 4o Murray v. Armstrong, 11 Mo Co. Lltt. 48c. 209; Potter v. Bassett, 35 Mo, 4iaMagill v. Hinsdale, 6 Conn. App. 417. 464, 469; Cook v. Sanford, 3 Dana LEASES BY AGENTS. 107 agent, had no title to the premises.*'^ These niles apply also to a lease which is signed by an agent acting for an undisclosed lessee. Thus a lease signed by a person in the capacity of a lessee in his individual name, is binding on him individually, though it may be recited in the lease that he is acting for an- other. The lease is his individual lease and he and not his principal is liable on the covenant to pay the rent though the principal may have had the use and occupation during the term. The covenants in such a lease can be enforced only by or against the person who actually covenants though in fact he covenants for another's benefit and this fact is known to the lessor. Nor can he escape individual liability where he signs as an individual merely by showing he was authorized to sign the lease as an agent and that he intended to do so as an agent and not as a principal. For the intention of the parties under such circumstances is a question of fact and the presumption is that it was intended to be binding on the agent as an individual unless an express ratification by the principal is proved.*^ But, while parol evidence is not admissible to exonerate the agent of an undisclosed principal from his liability for rent on a lease where the liability of his principal on the covenants does not appear upon the face of the lease** such evidence is received to charge the principal upon a lease and to enable him to sue or to be sued thereon.^" A tenant who has enjoyed the use and occupation of the premises, cannot defend in an action for the rent by showing that the lease was not signed by the landlord as the principal. Thus in an action against the tenant upon notes given for rent the defendant is estopped to show that the lease was not signed by the real owner, where the tenant had in fact signed the lease, and the real owner's agent had signed his name individually in place of that of the owner." So that a person who styles himself in the lease "sole lessor," and signs the lease with his own name, followed by the word agent is, so *7 Bedford v. Kelly, 61 Pa. St. <» Higgins v. Senior, 8 Mee. & 491. Wei. 844. 48 Kiersted v. O. & A. R. R. Co., so Hlggins v. Senior, 8 Mee. & 69 N. Y. 343, 1 Hun (N. Y.) 151, Wei. 844; Humphrey v. Dale, 7 E. 55 How. Prac. 51; Whitford v. & B. 266. Laidler, 25 Hun (N. Y.) 136, 140. si Lagerfelt v. McKie, 100 Ala. 430, 14 So. Rep. 281. 108 LAW OF LANDLORD AND TENANT. far as .the lessee is concerned, the landlord and he alone can recover rent and distrain for the non-payment therefor.^^ And generally an agent who has the full management of his prin- cipal's real estate with the power to rent it, may maintain an action for the possession of the premises where a tenant to whom the agent has leased it, fails to pay the rent.^^ A prin- cipal may ratify a lease which was executed by his agent as a lessor in such manner as to bind the agent only. After the prin- cipal has I'atified the lease, he may sue upon any covenant •"'* contained in the lease signed by his agent. A lease executed by the agent in which he exceeds the authority conferred upon him by the principal without the knowledge of the party with whom he is contracting though it may not bind the principal, is bind- ing upon the agent. But when an agent acts in good faith and discloses to the other contracting party the extent of his real authority the lease will not be obligatory upon the agent in case it shall turn out that he has exceeded his authority.^^ For if the party contracting with him actually knows the extent of his authority and accepts a lease from him which is in excess of his authority, he must take the consequences.-''^ § 79. Undisclosed principal where a lease is under seal. The principal cannot maintain an action for rent on a covenant in a lease under seal which is executed by the agent only under the agent's seal and which does not disclose the fact that the prin- cipal is a party to it. An action upon such a sealed instrument must be brought by a party to it and can be brought by no other person. The agent who executes a lease under his own name and seal is alone responsible for he and not his principal has entered into the covenants and inasmuch as he alone can be held liable for the performance of these covenants it follows that he alone can enforce the obligations which are incumbent on the other party. Where the agent of the owner executes a lease under the name and seal of himself and not of his prin- f.2 Seyfert v. Bean, 83 Pa. St. P. C. 547; Fenn v. Harrison, 3 T. 450, 34 L. I. 213. R. 758. ■'^- Hinckley v. Guyon, 172 Mass. (".g Sinclair v. Jackson, 8 Cow. 412, 52 N. E. Rep. 523. (N. Y.) 543; Galewski v. Appel- M Brooks V. Cook (Ala.), 38 So. baum, 32 Misc. Rep. 203, 65 N. Y. Rep. 641. Supp. 694, 65 Hamilton v. Clanricard, 5 Bro.. LEASES BY AGENTS. 109 cipal he and not the owner is the proper person to bring an action for the rent.'^^ The executor of an e.'itate cannot sue on a lease executed under seal by an agent in the agent's name as lessor where the lease does not show who was the principal.'* The contrary rule is recognized where there is a written lease not under seal. It may then be shown by parol that the prin- cipal and not the agent is the real party in interest and the un- disclosed principal may sue as landlord to recover the rent.^® But the fact that a lease is not required to be under seal does not always permit a lease actually under seal to be regarded as a simple contract and allow an undisclosed principal to sue thereon. Under some circumstances a seal may be treated as surplusage. Thus if it appear on the face of the sealed instru- ment itself that the lease was actually made on behalf of the principal and from parol evidence that he has derived a benefit from it, he may sue and be sued on it, though it has been signed only by the agent in his own name. The mere fact that an agent signs a sealed lease as agent not mentioning the name of the principal either in the signature or in any part of the lease is not enough alone to admit parol evidence of the existence of the principal or to permit the principal to sue thereon.®*' sTSchaeffer v. Henkel, 75 N. Y, 153; Brooks v. Cook (Ala.), 81 378, 381, 7 Abb. N. C. 1; Briggs v. Pac. Rep. 247. Partridge, 64 N. Y. 357. eo Manett v. Simpson, 61 Hun, 58 McColgan v. Katz, 60 N. Y. 620, 15 N. Y. Supp. 448. See Hays Supp. 291, 29 Misc. Rep. 136. T. Moody, 2 N, Y. Supp. 385; 68 Bryant v. Wells, 56 N. H. 152, Hardy v. Williams, 31 N. Car. 177. CHAPTER V. THE CHARACTER OF THE PROPERTY WHICH MAY BE LEASED. S 80. What may be leased. 81. A lease of land held adversely. 82. Leases of public land. 83. The lease of land or houses with chattels to be used therewith. 84. Lease of surplus waters of canaLs. 85. Leases by a tenant in dower or curtesy. 86. Agricultural leases in New York. 87. The power to lease a homestead. 83. The lease of a portion of a homestead. 89. The mode of the execution of a lease of a homestead. § 80. What may be leased. At the common law not only land itself but all chattels and heriditaments, corporeal or in- corporeal, might be the subject of a lease. Thus, an advowson^ might be leased. So, also, corrodies,^ estovers,^ ferries,* fish- eries,° offices, franchises,*^ rights to tolls, '^ rights of common,^ rights of way,^ and rights of herbage,^" may be the subject of a lease at common law. So, a stall in a market may be leased.^^ So, also, there may be a lease of the right to take herbage, timber or minerals from the land ;^- of water power,^^ and of the priv- ilege of putting up advertising sig-ns upon a wall,^* all of which •1 Anonymous, 3 Dyer, 323, b. pi. s Luney v. Brown, Lutch. 99. 30. » Newmarch v. Brandling, 3 2 Bacon's Abr. tit. Leases (A). Swanst, 99; Osborn v. Wise, 7 C. sBro. Abr. tit. Leases, 40; Ba- & P. 761, 764. con's Abr. tit. Leases (A) ; 1 Piatt i" Hill v. Barry, Hayes & Jo, on Leases, 24. 688. 4 Peter v. Kendal, 6 B. & C. 703, n Washington Market Co. v. 711; Hansen v. Kirtley, 11 Iowa, Hoffman, 101 U. S. 112, 25 L. Ed. 565. 782. 6 Duke of Somerset v. Fogwell, 12 Maring v. Ward, 50 N. Car. 5 B. & C. 875, 884; Eastham v. An- 272, 275. derson, 119 Mass. 526, 530; Water- i3 Channel v. Merrifleld, 206 111. town v. White, 13 Mass. 477. 278, 69 N. E. Rep. 32. « 2 Inst. 221, 400. n Landau v. O. J. Gude Co., 84 7 Harris v. Morricc, 10 M. & W. N. Y. Supp. 672. 260. CHARACTER OF PROPERTY WHICH MAY BE LEASED. Ill are distinct from a lease of tlie land itself and do not pass any interest in the land except to occupy it temporarily within the limits of the authority expressly conferred. § 81. A lease of land held adversely. At the common law an actual or constructive possession of the land by the lessor is always required as the basis of a lease. Hence, it follows that a lease in presenti creating a right to an immediate possession in the lessee, executed and delivered while the premises demised are in the adverse possession of a third person is absolutely void.^° So far as the validity of the lease is concerned it does not matter whether the adverse possession has or has not ripened into a title, or whether the lessor knew of the adverse posses- sion or not.^* In some cases by statute it is provided that prop- erty held adversely may be transferred. Such a statute vali- dates a lease of property in the adverse possession of another than the lessor.^' A lease by a person against whom property is held adversely to the person who claims title against him is valid. The execution of the lease puts an end to the adverse possession because by it the occupant admits its ownership to be in the lessor which he will be subsequently estopped to deny.^^ But the rule that land held adversely cannot be the subject of a valid lease at the common law does not apply to the case of a lease which is to take effect as soon as another lease which is then in existence shall terminate. The rule does not apply to leases in reversion. The possession of the tenants is then not adverse to the landlord. During the possession of the first ten- ant the lessee under the lease in reversion is the owner of an interesse termini which vests in possession at the expiration of the earlier lease. This lease may be granted with or without a deed.^" Unless the common law rule is superseded by a statute the only mode by which one whose land is held adversely may lease it is by the execution of a lease and the delivery of it in escrow to a third person with a power of attorney to make an 15 Iseham v. Morrice, Cro. Car. 623, 16 Pac. Rep. 5011, 5 Am. St. 109. Rep. 479. 16 Sohier v. Coffin, 101 Mass. 179, is Abbey, etc., Ass'n v. Welland, 183. See Warner v. Bull, 13 Met. 48 Cal. 614. (Mass.) 1. 19 Winter v. Loveday, 2 Salk. 17 Lewis V. Brandle, 107 Mich. 537; Clarges v. Funucan, 2 Doug. 7, 9; Rice v. Whitmore, 74 Cal. 619, 565, 568; Smith v. Day, 2 M. & W. 684, 699. 112 LAW OF LANDLORD AND TENANT. entry upon the land and to deliver the lease to the lessee after the entry and while in actual possession. The common law authority regulating this method of procedure will be found in the notes.-" A lease for years executed by an heir after the death of his ancestor but before his own actual entry on the land which is required to vest him with the possession at the common law is valid. The law presumes that he is in posses- sion the instant the ancestor dies. If, however, a stranger to the title actually enters before the heir takes possession and sets up an adverse possession to the heir, the lease of the heir will be void at common law.-^ § 82. Leases of public land. Vacant or unappropriated pub- lic land which is owned by the state or the United States and which is subject to pre-emption by settlers cannot be leased in the absence of a statute permitting it.^- In some States the leasing of public land by the state or the county is permitted by statute. A lease which is contrary to the statute is invalid and passes no title to the lessee. The invalidity of the lease is absolute and beyond the effect of subsequent curative statutes." The statutory provisions regulating the leasing of public land have for their object either the prohibition of the making of leases by the public authorities or the prohibition of the making of leases by the claimants of the land. In the absence of an ex- press statutory prohibition a lease of public land which is executed by a claimant to it before his entry has been per- fected by him, is valid. If the title has been perfected in the claimant and he has occupied the land he will unquestionably have the same right to lease it as any other owner,-* but if it appears to be the intent of the parties to the lease that the lessee of the claimant shall enter upon the land and occupy it under the lease before the title of the claimant has been confirmed or perfected according to law it is very doubtful if the lease would be obligatory on the claimant who subsequently enters 20 4 Bacon's Abr. tit. Leases (H) 22 Turner v. Ferguson, 33 Tex. 4; Co. Litt. 48&; Sharp v. Sharp, 505, 508, 509. Cro. Eliz. 483; Stephens v. Eliot, 23 Sexton v. Board of Sup'rs of id. 484; Jennings v. Bragg, id. 447; Coahoma, 86 Miss. 380, 38 So. Rep. Davis V. Bridges, 2 Roll's Abr. 25. 636. 21 Comyn's Digest, tit. Seizin 24 Tiernan v. Miller, 69 Neb. 764, (A), Sheppard's Touchstone, 269. 96 N. W. Rep. 661. CHARACTER OF PROPERTY WHICH MAY BE LEASED. IIS and attempts to repudiate the lease.^' Where a lease by a patentee of public land who has entered upon it is valid, his lessee has the same rights during the term to the possession and enjoyment of the land as has any other tenant.-^ § 83. The lease of land or houses with chattels to be used therewith. In England the validity of leases of chattels is ad- mitted. Thus a lease of a dwelling house and the furniture or of a mill and the machinery in it is valid. During the term for which chattels are leased the tenant has an interest in them as will deprive the owner or landlord of his possession of them. The relation of the landlord to the chattels is precisely the same as the relation of the landlord of the land to the demised laud. By the execution of the lease for a term the landlord is pre- vented from bringing an action against a third party for any injury to the cliattels during the term which does not amount ta a permanent destruction of them. This rule has been applied to leases of furnished houses. Thus, wdiere the landlord of a. house demises it furnished to a tenant, and the furniture of the house belonging to the landlord but in the actual possession of the tenant is taken from the house on an execution against the tenant, the landlord cannot recover in trespass for th^- goods against the sheriff though the sheriff knew that the landlord owned the furniture. For in this case the injury is not to the landlord but to the tenant by depriving him of the use of the furniture.^^ And the tenant may therefore sue. Nor can a landlord under such circumstances where the chattels which he has leased to a tenant are taken by a third person maintaiu an action of trover or conversion to recover the chattels for the right to the possession of the chattels continues in the tenant during the term, and the only action which the landlord may maintain during the term in regard to the chattels is an action for the destruction or their substantial and permanent impair- ment.^® 25 Orrell v. Bay Mfg. Co. (Miss. affords an answer to it. If, in- App., 1906), 40 So. Rep. 429. stead of the household goods, the 28 Tiernan v. Miller & Leith, 69 goods here taken had been ma- Neb. 764, 96 N. Wj Rep. 661. chines used in manufacture which 27 Ward v. Macauley, 17 R. 4S0. had been leased to a tenant, no 28 Gordon v. Harper, 7 T. R. 9. doubt could have been made but In this case the court said: "The that the sheriff might have seized very statement of the proposition them under an execution against. 114 LAW OF LANDLORD AND TENANT. One who leases a farm together with the live stock, farm- ing tools, and other articles to be used therewith and binds him- self to return these articles of personal property or others of equal value at the end of the term, acquires thereby no absolute title to the personal property. His creditors have no claim to these articles of personal property as against the landlord, though the tenant may use the personal property during the term and may also sell it providing he shall return property of equal value at the end of the term. Under these circum- stances, it will be necessary at the expiration of the term, whether by lapse of time or otherwise, for the landlord or the tenant to determine by an agreement between them, or by some proceeding of an equitable nature, who owns the personal prop- erty then on the farm. On the other hand, an agreement as to the ownership of such property may be implied from the lan- the tenant, and the creditor would have been entitled to the bene- ficial use of the property during the term; the difference of the goods, then, cannot vary the law. The cases which have been put at the bar do not apply; the one on which the greatest stress was laid was that of a tenant for years of land whereon timber is cut down, in which case it was truly said, that the owner of the inheritance might maintain trover for such timber, notwithstanding the lease. But it must be remembered that the only right of the tenant is to the shade of the trees when grow- ing, and by the very act of felling it, his right is absolutely deter- mined; and even then the property does not vest in his immediate landlord, for if he has only an es- tate for life, it will go over to the owner of the inheritance. Here, however, the tenant's right of pos- session during the term cannot be divested by any wrongful act, nor can it thereby be revested in the landlord. I forbear to deliver any opinion as to what remedy the landlord has in this case, not being at present so called upon to do; but it is clear that he cannot main- tain trover." Ashurst, J., said: "I have always understood the rule of law to be, that in order to main- tain trover, the plaintiff must have a right of property in the thing and a right of possession, and that unless both these rights concur the action will not lie. Now, here it is admitted that the tenant had the right of possession during the continuance of his term, and con- sequently one of the requisites is wanting to the landlord's right of action. It is true that in the pres- ent case it is not probable that the furniture can be of any use to any other than the actual tenant of the premises; but supposing the things leased had been manufac- turing engines, there is no reason why a creditor seizing them under an execution should not avail him- self of the beneficial use of them during the term." CHARACTER OF PROPERTY WHICH MAY BE LEASED. 115 guage of the lease, or the conduct of the parties. If, for example, the landlord attaches the stock and farming implements on the farm as the tenant's property when the lease is forfeited and a trustee of the tenant.' or the tenant himself, or his creditors sue the landlord for conversion it may reasonably be implied that the parties had agreed that the personal property belonged to the tenant.-' Where the lessor delivers to the lessee certain movable personal property, as stock, feed or utensils on a farm, which are to be used by the lessee in connection with his occu- pation of the leased premises, and for the benefit of the lessee, with a proviso that the personal property is to be returned at the end of the term a bailment or lease of the personal property is created and not a sale. The right of the lessee to the pos- session of the personal property during the term is paramount to the right of the lessor and, a fortiori to the right of an at- taching creditor of the lessor. The property cannot legally be taken out of his possession as his right thereto is perfect and absolute but only for the term.^° One who hires a furnished house must determine for himself what articles of furniture he shall claim as within the lease. It is his duty when the lease is executed to make a personal examination of the prem- ises in order to ascertain what furniture is contained therein, and, in the absence of an agreement to the contrary, it will be presumed that by the lease of a house together with the fur- niture therein the tenant takes only the furniture that is ac- tually contained in the house at the execution of the lease. A lease of a house with the furniture therein raises no implied covenant on the part of the landlord that the house is completely furnished. Nor can the tenant prove by parol evidence that the landlord orally promises to supply any deficiency in the furniture.^^ 29 Wilson V. Griswold, 79 Conn. supply all deficiencies in the fur- 18, 66 Atl. Rep. 783. niture was rejected. The tenant 30 Smith V. Niles, 20 Vt. 315, 320, never went into possession, but 49 Am. Dec. 782. See note 1 Dyer, sued to have the lease cancelled 767. for fraud or reformed on the 31 Wilson V. Deen, 74 N. Y. 531. ground of mistake, and the court In this case an offer of evidence held that he was entitled to no re- by the tenant that the landlord lief, no fraud or mistake being orally promised at the time of the shown. execution of a written lease to 116 LAW OP LANDLORD AND TENANT. § 84, Lease of surplus waters of canals. In many of the states it is by statute provided that a private corporation or the State itself controlling and operating a canal may lease the use of the surplus water which accumulates in, and which is not required for the operation and maintenance of the canals. Where a lease of this sort is made the lessor reserving the right to resume the possession of the water when it is needed for naviga- tion, the lessee takes the lease subject to the implied right of the State to discontinue its canals whenever the legislature deems it expedient to do so.^- So generally even though by express reservation of this sort may be inserted in the lease, the lease so-called is in law a mere license to use the surplus water, and hence without any obligation on the part of the State to create or to maintain a surplus of water. The abandonment of the canal as a canal imposes no liability for damages on the State for the agreement is a license and it is hence revocable, unless an express provision be inserted to the contrary.^^ For canals are authorized, constructed and maintained by the State for pblic purposes only and as an aid to the farming and mer- cantile classes of the community in forwarding heavy freight cheaply from one part of the state to another. They are not primarily designed to afford cheap water power to be leased or sold for use by private persons or corporations. Hence the latter use is subordinate to the general public use for traffic-, and the right to this private use may be terminated by the State whenever, in the exercise of its discretion, it abandons or relinquishes the primary and public use.^* 32 Fox V. City of Cincinnati, 104 U. S. 743, 26 Law Ed. 928; Fish- U. S, 743, 26 Law ed. 928; Wa- back v. Woodruff, 51 Ind. 102; bash, etc.. Canal Trustees v. Butt, Hoagland v. New Yorlt, C. & St. 2.5 Ind. 49; Armstrong v. Pennsyl- L. Ry. Co., Ill Ind. 443, 13 N, E. vania R. Co., 38 N. J. Law, 1; Hop- Rep. 472, affirming, 111 Ind. 443, poclt V. United New .Jersey R., etc., 12 N. E. Rep. 80; Hubbard v. City Co., 27 N. J. Eq. 286; Bucliingliam of Toledo, 21 Ohio St. 379; Com- V. Smith, 10 Ohio, 288; Cooper v, monwealth v. Pennsylvania R. Co., Williams, 4 Ohio, 253, 22 Am. Dec. 51 Pa. St, 351, 745, 5 Ohio, 391, 24 Am. Dec. 299; 34 Little Miami Elev. Co. v. City Kankauna Water Power Co. v. of Cincinnati, 30 Ohio St. 629, Green Bay, etc., Canal Co., 142 U. where an abandoned canal was by S. 254, 12 S. Ct. 173, 35 L. Ed. a municipal corporation converted 1004. into a highway. A statute au- 33 Fox V. City of Cincinnati, 104 thorizing payment for the damage CIIAUACTER OF PROPERTY WHICH MAY BE LEASED. 117 If the lease of surplus water expressly i)enuits a resumption of the water whenever in the opinion of the State officials the lease shall cease to be of advantage to the State, no reason need be given for the action of the officials ^^ in resuming the use of the water nor is the lessee entitled to compensation or damages. And where a statute provides that every lease of surplus canal waters shall contain a reservation to the lessor of the privilege of resuming the use of such water wherever it is necessary to do so an agreement by State officials with the lessee, that when he is deprived of the use of the water under this reservation the State shall compensate him for his permanent erection of mills or the like is invalid as a contract tending to retard or prevent the proper performance of official duty.^® Hence under such a lease a lessee who builds dams, mills or factories cannot re- cover the value of the same when the lease is unexpectedly ter- minated by the State. Successive lessees of the power to be derived from surplus water of a canal not required for the use and operation of the canal, must, in case the surplus becomes inadequate to supply all of them sufficiently, be supplied in the order of the execution of their leases.^" in point of priority in time according to the dates on which their respective leases were executed.^^- which has been caused by the ed. 917. If, however, a company- state resuming leased surplus owning a canal has been holding water of a canal does not apply the canal out as a source of to a lease permitting a revocation water supply for power and ex- or resumption without payment of pensive manufacturing establish- damages. Ex parte Miller, 2 Hill ments have been erected along the (N. Y.) 418. banks of the canal in reliance on 35 Ex parte Miller, 2 Hill (N. Y.) obtaining power, the company, in 418; Mattoon v. Munroe, 21 Hun equity, may be compelled to lease (N. Y.) 474. its surplus water, if it be reason- S6 State V. Board of Public ably within its power to do so. Works, 42 Ohio St. 607. Millers v. Augusta, 63 Ga. 772. In 3' Wabash & E. Canal Trustees one case it was held to be the V. Reinhart, 22 Ind. 463. clear duty of the state to lease cer- 38 Usually the state or a com- tain water of a state-owned canal pany operating a canal is not re- where the legislature of the state garded as bound to lease surplus had provided that the contractors water to all applicants in the ab- who had dug it were to be paid sence of statute requiring it. out of the rents of the water- Buiney v. Chesapeake, etc. Canal power. French v. Gapen, 105 U. Co., 8 Pet. (U. S.) 201, 8 Law. S. 509, 26 Law Ed. 951. 118 LAW OF LANDLORD AND TENANT. § 85. Leases by a tenant in dower or curtesy. Inasmuch as the right of dower is during the lifetime of the husband and Until dower is assigned to the widow a mere personal right and confers no estate in the land, it is not capable of being leased.'® However, after dower has been assigned to her, a Avidow may lease the land which she holds in dower for a term or for her life. The rights of the lessee of the widow are the same as the rights of any lessee of any tenant for life. It has been held that a covenant contained in a so-called lease of the right to have dower assig-ned by which the tenant agrees to pay the widow rent in consideration of her forbearing to exercise her right to dower, is a personal covenant. Hence, it does not run with the land so as to bind the tenant's assignee. Nor is the widow's contract a release of her dower if it is merely an agreement on her part to forbear asserting her dower for a cer- tain time.*** The tenant of an estate by the curtesy may execute a lease to the same extent as a tenant of any other life estate. Where the husband during the lifetime of the wife with or without her consent, leases her land for a term, the vesting in him of the estate by the curtesy will validate his lease to the extent that the term is unexpired. But, if before the death of the wife the husband makes a lease of her land in his own name and agrees to confer the possession on the lessee when the lessor shall become a tenant by the curtesy the future lease is subject to being defeated by the act of the wife in conveying or devising to another than her husand her real property,*^ as a result of which the husband's estate by the curtesy is defeated. 55 86. Agricultural leases in New York. In New York, prior to the constitutional provision which we are now to discuss, a very large portion of the manorial lands were leased in fee, or for very long terms, by their proprietors reserving an annual rent in money, produce or services. As the population increased and farming became widespread it was very soon apparent that such a mode of land tenure was unfavorable to progress for the tenants, owning only the usufruct, subject at any moment to be forfeited by breach of condition, felt none of the pride of in- 3« Chicago, B. & D. Ry. v. Kelly, <» Croade v. Ingraham, 13 Pick. 221 111. 498, 77 N. B. Rep. 619; (Mass.) 33, 35, 36. Hyatt V. O'Connell, 130 Iowa, 567, 11 Porch v. Fries, 18 N. J. Eq- 107 N. W. 599. 204, 209. CHARACTER OF PROPERTY WHICH MAY BE LEASED. 110 dependent ownership and had no desire or incentive to improve or even to cultivate in a husbandlike manner, land which was liable at any time to pass from them or their heirs without com- pensation. To remedy this evil the framers of the constitution of 1846, abrogated such tenures and provided furthermore "that no lease or grant of agricultural land for longer period than twelve years, thereafter made, in which should be reserved any rent or service of any kind, should be valid." The rents or services mentioned are only such as are certain and periodical and issue out of the land and are paid for its use. Construing the New York statute some of the cases have held that a lease for more than twelve years is void in toto.*- Other cases have held that the lease is good for the period limited by the statute or constitution but that it is void as to the excess of the term over that period.*^ So a lease of farm land for twelve years or a covenant to renew every twelve years during the life of a landlord is void except as to the first twelve years.** A lease of farm land for twelve years to commence at the expiration of a prior term of eight years is invalid.*^ Where a tenant holding farm land under a valid unexpired lease surrendered it and then executes two leases, one for eight and one for twelve years to run successively, the two leases are construed together as one lease and both are invalid. But the fact of their in- validity does not revive the valid lease which has been surren- dered.*® The statutes and constitutional prohibition do not apply to life estates or to leases for life as they are for an indefinite period depending for their duration wholly on the contingency of death, though they may possibly exceed twelve years in duration.*^ For as a general rule in order that the lease shall be void it must in fact extend beyond the twelve year period. The possibility that it may extend beyond the period is not 42 0dell V. Durant, 62 N. Y. 524; (N. Y.) 606, 14 How. Pr. (N. Y.) Clark V. Barnes, 76 N. Y. 301, 32 418. Am. Rep. 306. *'^ Clark v. Barnes, 76 N. Y. 301, 43 Hart V. Hart, 22 Barb. (N. Y.) 304, 32 Am. Rep. 706. 606; Robertson v. Hayes, 83 Ala. 46 Clark v. Barnes, 76 N. Y. 301, 290, 3 So. Rep. 674; Parish v. Rog- 304, 32 Am. Rep. 706. ers, 20 App. Div. 279, 46 N. Y. 4- Parish v. Rogers, 20 App. Div. Supp. 1058. 279, 46 N. Y. Supp. 1058; Wegner 44 Becker v. De Forest, 1 Swee- v. Lubenow, 12 N. D. 95, 95 N. W. ney, 52S; Hart v. Hart, 22 Barb. Rep. 442, 445. 120 LAW OF LANDLORD AND TENANT. sufficient/^ A statute which limits the duration of leases in which rent or service is reserved does not apply to a life estate for which a gross sum is paid. The terms of the statute as they are restrictive of the free alienation of landed property will not be extended by construction. The terms "rent or service" will be construed in their strict and technical sense. Eent is usually a profit arising out of the income or yearly profits of land, and differs from a lump sum paid as the consideration for the trans- fer of an estate in land. Hence a life lease for which no rent is to be paid is not void under the statute though tlie considera- tion for it be paid in instalments or consist of services so long as the payment or rendition of services be not made by way of rent.*® A lease of agricultural land is within the prohibition though the land is leased for other than agricultural purposes, for it is the character of the land, not the purpose of its use which determines the validity of the lease.^° of consideration in order that he may ascertain whether it is or is not advantageous to the estate that he should take possession and the fact that during this period the widow of the deceased tenant from year to year remains in possession and pays rent to the landlord does not prevent the personal representative from ousting her.^^ In the absence of a specific statutory require- ment to the contrary, after the death of either the landlord or tenant of a tenancy from year to year the personal representa- tive of the deceased may give or receive a notice to quit where the tenancy itself has sur\'ived.^" So, also, a tenancy from year to year is never terminated by the insanity of either the land- lord or the tenant. If during any year the lessor becomes in- sane and is judicially pronounced incompetent to manage his affairs, the committee appointed becomes the lessor of the term and the tenant must deal with him as his landlord. The same would be true in a case where the tenant became incompetent.^' § 96. The rule as to repairs by a tenant from year to year. A tenant from year to year is bound only to make such repairs 28 Roe d. Jordan v. "Ward, 1 H. It is more than a mere lease from Black. 96. year to year for if it had been 30 Thomas v. Roberts, 16 M. & such, says Lord Mansfield in this W. 780. case, it would have expired with- 81 Doe d. Hull V. Wood, 14 Mee. out notice at the end of the year & Wei. 682. after the death of A. B. The 32 A lease to A. B., his execu- term, however, continues after the tors, etc., from year to year for death of A. B. until it is termi- so long time as it shall please the nated by his executor. Mackay v. lessor and A. B. his executors, Mackreth, 4 Doug. 213, 219. etc., does not expire on the death 33 McFall v. McFall, 35 S. C. 559, of A. B., but vests in his executors. 14 S. E. Rep. 985. 138 LAW OF LANDLORD AND TENANT. as will keep the house in a tenantable position. lie is not re- sponsible for ordinary wear and tear, nor for permissive waste. ^* He is not liable to make substantial and lasting repairs.^" And is only bound to keep the house which he occupies in such a condition that it may be habitable.^^ If, however, the occupant is tenant from year to year under a void lease, which contains the usual covenants by the tenant to repair, he will be bound by such covenants and will be compelled to make the repairs which are called for bj^ them."' Thus where a lease was made by a corporation for the term of three years and the tenant agreed to put, maintain and deliver the premises in tenantable repair and he entered thereon, he was held to be a tenant from year to year as the lease was void because the seal of the corporation was not on it, and the tenant was liable to keep in repair ac- cording to its terms though he was a tenant from year to year.^* On the other hand the landlord of a tenant from year to year is not bound to make substantial repairs of the premises in the absence of an express agreement on his part.^^ 34 Torriono v. i'oung, 6 Car. & P. 8, 12. See Martin v. Gilham, 2 N. & P. 568, 7 A. & E. 540, 7 L. J. Q. B. 11. 35 Ferguson v. , 2 Esp. 590, 5 R. R. 757; Horsefall v. Mather, Holt, N. P. 7, 17 R. R. 589; Leach v. Thomas, 7 Car. & P. 328. 36 Auworth V. Johnson, 5 Car. & P. 239. 37 Beale v. Sanders, 3 Bing. (N. C.) 850, 5 Scott, 58, 3 Hodges, 147, 6 L. J. C. P. 283, 1 Jur. 1083. 38 Ecclesiastical Comm'rs v. Mer- rall, 38 L. J. Ex. 93, L. R. 4 Ex. 162, 20 L. T. 573, 17 W. R. 67G. 30 Gott V. Gandy, 2 El. & Bl. 845, 2 C. L. R. 392, 23 L. J. Q. B. 1, 18 Jur. 310, 2 W. R. 38. A covenant to build or to do such substantial repairs as are not usually done by a tenant from year to year will not usually be implied in the case of a tenancy from year to year. Such covenants will not be im- posed even though the agreement for a lease stipulates for such cov- enants or stipulates for the inser- tion of the usual covenants. Bowes V. Croll, 6 E. & B. 264. But where a tenancy is created by an entry of a tenant under a void agree- ment to make a lease by the terms of which the tenant was to keep the premises in good and tenant- able repair the covenant to repair will be implied and will bind the tenant from year to year. Thus where a tenant went into posses- sion under an agreement by which he was to have a lease for three years and a quarter, he to keep the premises in tenantable repair during the said term, and the agreement was void for the reason that it was neither stamped as a lease nor signed by the parties, it was held that the tenant was bound to repair during his occu- ])ancy, though the agreement was void under the statute of fraud''. In (his case (Richardson v. Gif-- TENANCY FROM YEAR TO YEAR, 139 § 97. A tenancy from year to year created by tenant holding over. Where the tenant holds over after the expiration of the lease, and the lessor receives rent accruing subsequently to the expiration of the term, or does any act from which it inay be inferred that he intends to recognize him still as a tenant, he becomes thereby by implication a tenant from year to year upon all the terms of the original lease.'"* And the same rule is true ford, 1 Ad. & El. 52) the court by Parke, .J., said: "He did not le- gally agree for the term of three years, but, in point of law, he was tenant at will for the first year, subject to the terms of the agree- ment on his own part, and after- wards tenant from year to year subject still to the same agree- ment, which bound him to keep the premises in good repair as long as he should occupy." And, hence, generally, when a tenant goes into possession under an agreement for a lease, or under a void lease, he will, after payment of rent under it, be treated as sub- ject to the terms and conditions of the agreement or lease so far as the same are applicable to a tenancy from year to year but no further. If any of the conditions are inconsistent with such a ten- ancy from year to year they will be rejected. 40 Belding v. Texas Produce Co., 61 Ark. 377, 33 S. W. Rep. 421; Parker v, Hollis, 50 Ala. 411; Stoppelkamp v. Mangeot, 42 Cal. 316; Bacon v. Brown, 9 Conn. 334; Robertson v. Simons, 109 Ga. 360, 362, 34 S. E. Rep. 604; Crutchfield V. Remaley, 21 Neb. 178, 31 N. W. Rep. 687; Tanton v. Van Alstine, 24 111. App. 405; Quinlan v. Bonte, 25 111. App. 240; Board of Direct- ors V. Chicago Veneer Co., 94 IlT. App. 492; Belding v. Texas Pro- duce Co., 61 Ark. 377, 33 S. W. Rep. 421; Goldsborough v. Gable, 140 111. 269, 29 N. E. Rep. 722, 15 L. R. A. 294; Kleespies v. Mc- Kenzie, 12 Ind. App. 404. 40 N. E. Rep. 648; Wheat v. Brown, 3 Kan. App. 431, 43 Pac. Rep. 807; Mos- hier v. Reding, 12 Me. 478; Wig- gins V. Ferry Co., 82 111. 230; Clin- ton Wire Cloth Co. v. Gardner, 99 111. 151, 165; Clapp v. Paine, 18 Me. 264; Alleman v. Vink, 28 Ind. App. 142, 62 N. E. Rep. 461; Thei- band v. Bank, 42 Ind. 312; Hall v. Myers, 43 Md. 416; Gardner v. Commissioners, 21 Minn. 33; Hunter v. Frost, 47 Minn. 1, 49 N. W. Rep. 327; Smith v. Bell, 44 Minn. 524, 47 N. W. Rep. 263; Usher v. Moss, 50 Miss. 208; Fin- ney V. St. Louis, 39 Mo. 177; Quin- ette V. Carpenter, 35 Mo. . 502; Bilcher v. Parker, 40 Mo. 113; De- laney v. Flanagan, 41 Mo. App. 651 ; Yates v. Kinney, 19 Neb. 275 ; Ketcham v. Ochs, 77 N. Y. Supp. 1130, 70 N. Y. Supp. 268, 34 Misc. Rep. 470; Ridgeway v. Hannum, 129 Ind. App. 124, 64 N. E. Rep. 44; Bradley v. Covel, 4 Cow. (N. Y.) 349; Haynes v. Aldrich, 133 N. Y. 287, 31 N. E. Rep. 94, 45 N. ^'. St. Rep. 243. affg. 14 N. Y. Supp. 951; Commisioners v. Clark, 133 N. Y. 251; Clark v. Howland, 85 N. Y. 204; Jackson v. Salmon, 4 Wend. (N. Y.) 327; Moore v. Beas- ley, 3 Ohio, 294; Laguerenne v. Dougherty, 35 Pa. St. 45: Logan v. Herron, 8 S. & R. (Pa.) 459; 140 LAW OF LANDLORD AND TENANT. under a lease for two years.*^ It is not material as influencing this construction whether the same rent is paid by the tenant holding' over as was paid under the lease which had expired.*^ or whether the tenant holding over has agreed to pay an in- creased rent during the period he continues to hold over.*' In all these cases the payment of rent creates the tenancy from year to year. If the rent is paid by the year or so much per year the inference is almost irresistible that he had in mind a tefiancy from year to year, but the fact that the rent is payable semi-annually has in one case at least been held insufficient to rebut the presumption.** This rule applies to municipal and other corporations as well as to individuals^ so that a corpora- tion holding over after the expiration of its lease with the as- sent of the lessor becomes a tenant from year to year.*^ There is a presumption of law that a tenant holding over with the assent of the lessor becomes a tenant from year to year, and such Hemphill v. Flynn, 2 Pa. St. 144; Phillips V. Monges, 4 Whart. (Pa.) 229; Simmons v. Jarman, 122 N. C. 195, 29 S. E. Rep. 332; Gladwell V. Holcomb, 60 Ohio St. 427, 433, 54 N. E. Rep. 473; Railroad Co. V. West, 57 Ohio St. 161; Amsden V. Atwood, 35 Atl. Rep. 311, 67 Vt. 289, 31 Atl. Rep. 448; Noel v. McCrary, 7 Coldw. (Tenn.) 623; Emerick v. Tanner, 9 Gratt. (Va.) 220, 58 Am. Dec. 217; Allen v. Bartlett, 20 "W. Va. 46; Arbenz v. Exley, 52 W. Va. 476, 44 S. E. Rep. 149; King v. Wilson, 98 Va. 259, 35 S. E. Rep. 727; Baltimore Dental Ass'n v. Fuller, 101 Va. 627, 44 S. E. Rep. 771; Brown v. Kay- ser, 60 Wis. 1; Bishop v. Howard, 3 D. & R. 293, 2 B. & C. 100, 1 L. J. (O. S.) K. B. 243, 26 R. R. 291; Kelly V. Patterson. 43 L. J. C. P. 320, L. R. 9 C. B. 6S0, 30 L. T. 842; Cornish v. Stubbs, 39 L. .T. C. P. 202, L. R. 5 C. P. 334, 22 L. T. 21, 18 W. R. 547; Doe d. Clarke v. Smarridge. 7 Q. B. 957, 14 L. .T. Q. B. 327, 9 Jur. 781; Doe d. Hol- lingsworth v. Stennet, 2 Esp. 717; Doe d. Rogers v. Pullen, 3 Scott, 271, 279, 2 Ring. (N. C.) 749, 2 Hodges, 39, 5 L. J. C. P. 229; Digby V. Atkinson, 4 Camp. 275, 278; Finch V. Miller, 5 Com. Bench, 428; Pierce v. Shaw, 2 M. & R. 418; Bridges v. Potts, 17 Com. Bench (N. S.), 314, 335; Dougal v. Mc- Carthy, 4 Reports, 402; (1893) 1 Q. B. 736. 4' Belding v. Texas Produce Co., 01 Ark. 377, 33 S. W. Rep. 421. 42 Wheat V. Brown, 3 Kan. App. 431, 43 Pac. Rep. 807. *"■ Zippar V. Reppy, 15 Colo. 260, 25 Pac. Rep. 164, citing Digby v. Atkinson, 4 Camp. 275, in which Lord Ellenborough says: "The mere advance of the rent, in my opinion, makes no difference." 44 Adams v. Cohoes, 127 N. Y. 175, 28 N. E. Rep. 25, affg. 53 Hun, 260, 6 N. Y. Supp. 617, 25 N. Y. St. Rep. 523. 45 Artt V. New York, 28 N. Y. Super. Ct. (5 Rob.) 248.' TENANCY FROM YEAR TO YEAR, Ml presaimption may be rebutted by proof that the holding was in some other character or for some other purpose.*" § 98. Rebutting the presumption which arises on a tenant holding over. The presumption that a tenant holding over and paying rent after the expiration of his term, is a tenant from year to year is as a general rule regarded as only a pre- sumption of fact and continues only until the contrary is shown.*^ It may be shown by a landlord who denies that a ten- ancy from year to year has been created by his receipt of rent from a tenant holding over, that the landlord accepted or re- ceived the rent from the tenant under some mistake, misunder- standing or misapprehension of fact or in ignorance of a mater- ial fact which if it had been known to him at the time he re- ceived or accepted the rent would have caused him to decline to receive it.*^ The receipt of rent by the year creates a tenancy from year to year solely because the law presumes that such was the intention of the parties. It is presumed that they thereby contracted for a yearly lease and as an intention is always an essential element of a contract if there is no intention there is 46 Williamson v. Paxton, 18 Gratt. (Va.) 475. The silence of the landlord where a tenant for a year holds over may and in fact in most cases as has been set forth in the text create a tenancy for an- other year and so on from year to year. But this rule does not apply to the case of a tenant whose term i.s for a very short period only, less than year holding over with the acquiesence of the landlord and upon the tenant promising to pay rent at the same rate as under the lease which has expired. Mont- gomery V. "Willis, 45 Neb. 434, 63 N. W. Rep. 794. A tenancy from year to year, beginning on the first day of November, is created, where by an oral lease of premises situated in New York city it is in express terms agreed that the hir- ing shall be for one year from the first day of November, and the ten- ant remains in possession for a number of years without any fur- ther agreement between the par- ties. 3 Rev. St. N. Y. (7th ed.) p. 2200, § 1, does not apply to such a case. Laimbeer v. Tailer, 125 N. Y. 725, 26 N. E. Rep. 756, affg. 4 N. Y. Supp. 588, 21 St. Rep. 380. 47 Secar v. Pestana, 37 111. 525; Dubuque v. Miller, 11 Iowa, 583; Brewer v. Knapp, 1 Pick (Mass.) 332; Quinnette v. Carpenter, 35 INIo. 502; Grant v. White, 42 Mo. 285; Darrill v. Stevens, 4 McCord (S. C.) 39; Moore v. Beasley, 3 Ohio, 294; Sheldon v. Davey, 42 Vt. 637; Stedman v. Gassett, 18 Vt. 346; Williams v. Paxton, 18 Gratt. (Va.) 475; Mayor of Thet- ford V. Tyler, 8 Q. B. 95. 48 Doe d. Lord v. Crago, 6 Com. Bench, 90, 98; Oakley v. Monck, 3 H. & C. 706. 142 LAW OF LANDLORD AND TENANT. no lease. The parties are permitted to show what was the true intention by any relevant evidence and the true intention when proved ma\^ overcome the implied intention.*^ The right of the landlord to rebut the presumption as against the tenant nec- essarily confers upon the tenant the reciprocal right to rebut the presumption of a tenancy from year to year as against the land- lord seeking to recover rent from him upon the assumption that he is a tenant from year to year. If on the termination of a lease for a definite period the landlord expresses no intention of leasing the premises to the tenant for a new definite period but simply permits him to remain in possession and to pay rent as before, he is a tenant from year to year. If, however, at or before the expiration of the lease the landlord informs the ten- ant that he will not be allowed to occupy the premises after tht expiration of the term except as tenant from month to month, no implied tenancy from year to year will arise, for an implied tenancy arises only from the presumed intention of the parties where they are silent and where they permit the facts and cir- cumstances of the case to speak for them and where the land- lord expressly states his intention and the tenant is silent, the tenant will be presumed to have assented to the proposition.^'" § 99. The modification of the terms of the original lease as against a tenant holding over. The presumjitiou that the ten- ancy from year to year which arises from a tenant holding over 49 "When a tenant, whose term the part of the landlord from has expired by efflux of time, in- which a renewal of the contract stead of quitting the premises as may be implied, the person in pos- he ought to do, remains in posses- session continues a wrong-doer, is sion, holding over as it is called, liable to be treated as such and he is g. wrong-doer and may be must attribute to his original treated as such by the owner, his wrong and subsequent folly, any landlord. By the consent of his inconveniences which may ensue, landlord, his tenancy may be con- The mere unbroken silence and in- tinued, and if such continuance by action of the owner will not im- consent be without any fixed limit, prove or enlarge the character of he becomes a tenant from year to the tenant's possession." By the year, as it is called. This consent court, Ewing, C. J., in Den ex dem. may be either express or inii)lied; Decker v. Adams, 12 N. J. Law, actual or constructive by words or 99, on page 100. by some act recognizing or treat- •'''" Shipmau v. Mitchell, G4 Tex. ing him as a tenant. But without 174. a new contract, or some act on TENANCY FROM YEAR TO YEAR. 113 is on the same terms as to rent, etc., as was the oriyinal lease, may be overcome by clear proof that the parties to the original lease on or before its expiration agreed that the rent should be modified on the holding over. The presumption that a tenant holding over with the consent of the landlord is a tenant at will, or from year to year, as the case may be. upon the same terms so far as the amount of rent is concerned as he had under the original lease is conclusively rebutted if it is shown that a new agreement was made to pay an advanced rental during the hold- ing over. And if either after or prior to the termination of the lease the landlord informs the tenant that in case he holds over after the expiration of an existing term a greater rent will be expected from him than he has paid under the original lease, and the tenant holds over iwthout saying anything in reply co the landlord's demand or notice for an advanced rent, his con- tinuing in possession taken in connection with his silence will be regarded as an assent on his part to pay the advanced rental. ^^ AVhere a tenant holding under a lease in writing from year to year is told by his landlord during any one of the yearly periods that his rent will be greater on the ensuing year and he there- after holds over, it will be conclusively presumed that he has agreed to pay an increased rental and the terms of his lease will be modified accordingly. He will thereafter be liable to pay the increased rent from year to year so long as he continues to hold unless the rental contract is again modified by a restoration of the rent to the original figure.^- So, if a tenant is told by his landlord before the expiration of his tenn that if he remains 51 Hunt V. Bailey, 39 Mo. 257. tantamount to saying 'I will con- See, also, Roberts v. Hayward. 3 tinue in on the terms of your pro- Car. & P. 432, in which the court posal.' I am of the opinion that by Best, C. J., said on page 433: under the circumstances the di.s- "The tenancy under the agreement tress was regular. I think the expired at midsummer, 1826. Im- landlord had the right to make mediately after that time, the any terms he pleased for the time plaintiff (the tenant) was a tres- subsequent to Lady's Day, 1827, passer but the landlord was not and if the plaintiff would not ac- obliged to treat him as such, but cept them, to turn him out of pos- might make proposals to him to session." renew the relation of landlord and 52 Moore v. Harter. 67 Ohio St. tenant between them. This he did 250, 65 N. E. Rep. 883: Thompson and the plaintiff did not say 'I will v. Sanborn, 52 Mich. 141. go out directly.' His silence is 144 LAW OF LANDLORD AND TENANT. thereafter he will have to pay an increased rent which is dis- tinctly specified, the tenant becomes liable for the rent for an- other year at the increased rate though on the notice of the in- crease of the rent he has notified his landlord that he remains under protest and only until he can secure another place.^^ The tenant's conduct in continuing in possession after notice by tlie landlord is an acceptance of the landlord's proposition. An ad- vance or a reduction of the rent made by agreement or by as- sent on the part of the tenant does not always conclusively rebut the presumption or implication that a tenant holding holds over under the terms of the former lease so far as such terms are ap- plicable to the new holding. An agreement for an alteration of the rent on holding over, nothing else being said by either party, does not necessarily amount to a new demise which will render inadmissable the terms and the facts and circumstances of the original letting. Though the tenant holding over does not ac- tually hold under the original lease which has expired, still, where the parties have made no new arrangements after the original lease has terminated except to alter the amount of rent which is to be paid, the law will imply that they had at all times the terms and provisions of the old lease in mind and that they made their new arrangement with reference to it. The landlord cannot sue a tenant holding over after the expiration of the original lease on any covenant of it, where any of the implied covenants are broken during the new holding, but he may sue him in assumpsit for rental and the former lease should be received in evidence to show the character of the covenant which it is claimed to have been implied. °* The periods at which the rent is pay- able under the original lease, whether yearly, monthly or other- wise will determine when the rent shall be payable under the lease implied from the holding over.°° And in conclusion it should be sjiid that the presumption that a tenant Avho holds over is holding over upon the terms of the original lease is not rebutted by proof of a different intention on the part of the c3 Brinkley v. Wolcott, 10 Heisk. ■■•• Conway v. Starkweather, 1 (Tenn.) 22. Den. (N. Y.) 113; Dorrlll v. Ste- o*Digby V. Atkinson, 4 Camp. vens, 5 McCord (S. C.) 49. 276, 27.S; Monck v. Geekle. 9 Ad. & El. 841. TENANCY FROM YEAR TO YEAR. 145 tenant alone which is not communicated to or assented in by the landlord.'" § 100. Holding over — Excused when caused by action of the Board of Health. The power of Boards of Health conferred upon them by legislative enactment under the exercise of the police power to regulate the care and transportation of persons ill with infectious or contagious diseases is very broad and far reaching. In the state of New York and perhaps in most of the states of the Union which have adopted codes of sanitary rules and regulations, the isolation of such persons is strictly en- joined. It is provided that all communication with a house or famil}^ infected with any contagious, infectious or pestilential disease may be forbidden by a Board of Health, except by .means of physicians, nurses or messengers, to carry the neces- sary advice, medicines or provisions to the afflicted. The Board of Health has jurisdiction to act summarily in determining whether a condition of affairs has arisen which will justify it in forbidding general access to or egress from the infected prem- ises; its action, though open to judicial review in a direct pro- ceeding to which the board is a party, cannot be questioned in a collateral proceeding. A landlord knows, or rather, in law, he will be presumed to know the law in this respect and the parties to a lease will be presumed to have contracted with reference to the existence of the law giving Boards of Health such discre- tionarj' powers, and they will be presumed to have had in view in contracting any contingency which would give occasion for the exercise of such powers. Hence a holding over which is invol- untary for the reason that the tenant is prevented from remov- ing by the orders and direction of the Board of Health will not be equivalent to a renewal of the lease by the tenant nor will the landlord be permitted to recover double rent under a statute providing for double rent in a case of a holding over by a tenant after he has given notice that he will quit.^^ 66 Chicago V. Peck, 196 111. 260, ner. 99 111. 151. 165. See Hunt v. 63 N. E. Rep. 711, afg. 98 111. App. Railey, 39 Mo. 257. 434; Board of Directors of Chi- st Haynes v. Aldrich, 133 N. Y. cago Theological Seminary v. Chi- 2S7, 31 N. E. Rep. 94; Herter v. cago Veneer Co., 94 111. App. 492; Mullen, 9 App. Div. 593, 41 N. Y. Clinton Wire Cloth Co. v. Card- S. 708. 10 146 LAW OF LANDLORD AND TENANT. § 101. Statutory modification of the rule that a holding over creates a tenancy from year to year. The common law rule that, where a tenant for years holds over, and continues to pay rent, a tenancy from year to year is established, is abrogated by statute in some states. Thus in Iowa, it is enacted by statute that any person in possession of land with the assent of the owner is presumed to be a tenant at will until the contrary is shown.^^ Where such statutes exist a mere tenancy at will is created by a tenant holding over in the absence of proof of a special contract to the contrary, though he may pay rent by the year. So, also, where a statute expressly provides that the time agreed on in a definite letting shall be the termination thereof for all purposes and the premises are leased in express terms for one year, a tenant who holds over after the expiration of the year becomes a tenant at sufferance only and not a tenant from year to year.^® § 102. Tenancies from year to year created by leases void under the statute of frauds. A tenancy from year to year may be created by a tenant going into possession of land and paying rent computed by the year under a parol lease for a term of years when the lease for years is void as such under the statute of frauds.^*^ On the entry of the tenant into possession, the 6S O'Brien v. Troxel, 76 Iowa, v. Newton, 23 N. J. Law, 111; 760, 40 N. W. Rep. 704. Loughran v. Smith, 75 N. Y. 205; 59 Wood V. Page, 24 R. L 594, 54 Craske v. Cliristian Union Pub. Atl. Rep. 372. Co., 17 Hun (N. Y.), 319; Fried- 60 Lockwood V. Lockwood, 22 lioff v. Smitti, 13 Neb. 5, 12 N. W. Conn. 425; Strong v. Crosby, 21 Rep. 820; Humphrey Hardware Conn. 398; Stewart v. Apel, 5 Co. v. Herrick, 5 Neb. (unof.) 524, Houst. (Del.) 189; Cady v. Quar- 99 N. W. Rep. 233, 234; Schneider terman, 12 Ga. 386; "Western v. Lord, 62 Mich. 141, 28 N. W. Union TeL Co. v. Fair, 52 Ga. 18; Rep. 773; Schuyler v. Leggett, 2 Swan V. Clark, 80 Ind. 57; Nash Cow. (N. Y.) 660; Reeder v. Sayre, V. Beckmen, 83 Ind. 536; Coan v. 70 N. Y. 180, 184; Condert v. Cohn, Mole, 39 Mich. 454; Huntington US N. Y. 309, 313, 23 N. E. Rep. V. Parkhurst, 87 Mich. 38, 49 N. 298, aff'g 43 Hun, 454, 6 N. Y. St. W. Rep. 597; Delaney v. Flanagan, Rep. 733; Baltimore, etc., R. Co. 41 Mo. App. 651; Hosli v. Yokel, v. West, 57 Ohio St. 161, 49 N. E. 58 Mo. App. 169; Ridgley v. Still- Rep. 344; Rosenblat v. Perkins, well, 28 Mo. 40; Goodfellow v. ]8 Or. 156, 22 Pac. Rep. 598; Thur- Noble, 25 Mo. 60; Kerr v. Clark, ber v. Dwyer, 10 R. I. 355, 357; 19 Mo. 132; Scudly v. Murray, 34 Hellams v. Patton, 44 S. C 454, 22 Mo. 420, 86 Am. Dec. 116; Drake S. E. Rep. 608; Matthews v. Hipp, TENANCY FROM YEAR TO YEAR. U7 parol lease, though it be invalid so far as the creation of a term in writing is concerned, creates a tenancy at will and is also recognized as indicating the intention of the parties as regards all other conditions and terms of the original letting. The amount of the rent fixed in the parol lease will be the rent which the tenant must pay, in the absence of an express agree- ment to the contrary, and generally all the covenants and condi- tions which are contained in the void oral lease except those which fix the term of the letting, will regulate the hiring from year to year.^^ A person who had entered upon premises under a lease which is void under the statute of frauds is merely a tenant at will. His continuing in possession for over a year after the date of his entry' and also his paying rent upon a yearly basis turns his holding into a tenancy from year to year."^ Generally the payment of the rent for one year at a yearly rate with a holding over by the tenant after the expiration of the first year will constitute the tenancy a tenancy from year to year.®^ Tenancies for other periods, as for example, by the 66 S. C. 162, 44 S. E. Rep. 577; Doe d. Rogers v. Pullen, 3 Scott, 271, 2 Ring. (N. C.) 749, 2 Hodges, 39, 5 L. J. C. P. 229; Dicke v. Har- per, 6 Yerg. (Tenn.) 2S0; Rerrey V. Lindlej^ 3 INIan. & G. 496; Thunder v. Relcher, 3 East, 449; Clayton v. Rlahey, 8 Term Rep. 3, 4 R. R. 575; Doe d. Rigge v. Rell, 5 Term Rep. 471, 2 R. R. 642. 61 Baylies v. Ingram, 84 A. D. 360, 82 N. Y. Supp. 891; Coudert V. Cohn, 118 N. Y. 309, 313, 23 N. E. Rep. 298, aff'g 43 Hun, 454, 6 N. Y. St. Rep. 733; Reeder v. Sayre, 70 N. Y. 180, 184; Richard- son V. GifEord, 1 Ad. & El. 52; Doe V. Collings, 7 C. B. 939; Tress v. Savage, 4 El. & B. 36; Lee v. Smith, 9 Exch. 662; Martin y. Watts, 7 T. R. 83; Riggs v. Bell, 5 T. R. 471; Clayton v. Blakely, 8 T. R. 3; Pennington v. Taniere, 12 Q. B. 998; Arden v. Sullivan. 14 Q. B. 832; Doe v. Amey, 12 Ad. 6 El. 476. 62 Mathews v. Hipp, 66 S. C. 102, 44 S. E. Rep. 577. 63 "Though the agreement is void by the statute of frauds as to the duration of the lease, it must reg- ulate the terms on which the ten- ancy subsists in other respects, as to the rent, the time of the year when the tenant is to quit, etc. So, where a tenant holds over after the expiration of his term, without having entered into any new contract, he holds upon the former terms. Now, in this case, it was agreed that the tenant should quit at Candlemas; and, though the agreement is void as to the number of years for which defendant was to hold, if the lessor choose to determine the tenancy before the expiration of the seven years he can only put an end to it at Candlemas." By Lord Kenyon in Doe d. Rigge v. Bell, 5 T. R. 471. 148 LAW OF LANDLORD AND TENANT. month, or by tlie quarter, may be created by an entry into pos- session under a lease which is invalid under the statute of frauds and a payment of rent with reference to a particular period short of a year. So, a tenancy from month to month is created by the acceptance of rent under a lease void under the statute of frauds, where the rent is payable monthly,®* and the tenant goes into possession. For a reservation of rent in the void lease according to a particular period may convert a holding under the void lease into a monthly or yearly tenancy according to the circumstances. But it has been held that the rule that an an- nual reservation of rent is necessary to turn a lease for an un- certain term into a lease from year to year does not apply to a parol tenancy for years, void under the statute of frauds, where the rent has been paid in advance, and such tenancy becomes a tenancy from year to year, though no rent was reserved by the year.®^ So an oral agreement by which a tenant under a written lease for five years relets a portion of the premises to his land- lord for the same term becomes, under the statute of frauds, a tenancy from year to year.®^^ But a tenancy from year to year cannot be created by an occupancy for two years under a parol lease for five years, since such contract is void as one not to be performed in a year and the relation of landlord and tenant is not created at all.*'® § 103. Tenancies from year to year arising from defective and unexecuted leases. AVhere a tenant enters and pays a yearly rent under a lease for a term of years which is void for any reason, he will be regarded as a tenant from year to year. Thus, for example, where a long absent owner of property re- turns and repudiates the lease made by a guardian of his heirs, on the supposition of his death,®'' or the mortgagee fails to join in a lease of the mortgaged premises,®^ or a lease for five years is executed by the tenant alone,^® or a lease is imperfectly exe- 84 Utah L'9 Sldcbotham v. Holland, 64 L. TENANCY FROM YEzVR TO YEAR. 173 quit may be given at any time, it is not necessary that the period of the notice to quit should expire at the end of the current year.^ To illustrate the rule let us cite a few English cases, thus: Under a letting from year to year which is dated Dec. 20th, 1872, but specifying no date for the commencement of the term, a notice to quit given by the landlord on the 24th of June, 1874, was held a good notice of six months.^ So, a notice on Sept. 28th, to quit on the ensuing March 25th, is a sufficient half year's notice.^ Likewise a notice given on Sept. 26th to quit at the end of six calendar months will determine a holding commencing on March 25th. and this is true if the word "calendar" had been omitted or the notice had expressly said half a year.* A notice to quit to terminate a tenancy for a term of years, given on Dec. 24th to quit on June 24th next was good.'^ § 123. The necessity for personal gervice of a notice to quit. The notice to quit ought to be personally sei^ved upon the tenant usually at some place upon the property,* and maist be served upon all lessees or on all lessors who have the title to the term or to the reversion who hold as tenants in common.'' Though the notice to quit ought if possible to be personally served upon the tenant upon the premises it is likely that a service by leaving it upon the premises while the tenant is absent therefrom with some person of mature age, under such conditions that the tenant would be likely to receive it upon his return, would be sufficient in a case where the tenant attempts to avoid service by absenting himself from the premises.* A statute which requires the service of a written notice to quit to terminate a tenancy from month to month requires the personal service of the written J. Q. B. 200, [1895] 1 Q. B. 378, * Howard v. Wemsley, 6 Esp. 53, 14 R. 135, 72 L. T. 62, 43 W. R. 9 R. R. 806. 228. » Buddie v. Lines, 11 Q. B. 402, 1 Bridges v. Potts, 17 C. B. N. 17 L. J. Q. B. 10 8, 12 Jur. 80. S. 314; Soames v. Nicholson, 71 e De Giverville v. Stolle, 9 Mo. Law J. K. B. 24 [1902] 1 K. B. 157, App. 185; Van Studdiford v. Kohn, 85 Law T. 614, 50 Wkly. Rep. 169. 46 Mo. App. 436. 2 Sandill v. Frankim, 44 L. J. t Bless v. Jenkins, 129 Mo. 647, C. P. 216, L. R. 10 C. P. 377, 32 L. 31 S. W. Rep. 9S8. T. 309, 23 W. R. 473 s The statute must always be 3 Durant v. Doe, 6 Bing. 574, 4 consulted as to the metuod of M. & P. 391, 8 L. J. (O. S.) C. P. Berving the notice to quit. 227, 31 R. R. 499; Harrap t. Green, 4 Esp. 198. 174 LxVW OF LANDLORD AND TENxVNT. notice at least in all cases where such service can conveniently be made.® Hence under such a statute the mere reading of the notice to quit to the tenant is not sufficient as the statute requires personal service, and the personal delivcTy of the notice to the tenant. On the other hand a notice to quit sent by mail and which is actually received by the tenant within the required time is sufficient, though this mode of service is not expressly author- ized. The tenant accepts all risks in receiving the notice.^" In the absence of express statutory regulation, a notice to quit nec- essary to terminate a tenancy from year to year may be served upon the wife of the tenant, she being in possession in case where it is impossible to serve the tenant in person. ^^ Ex 7iecessitate rei where the tenant is a corporation a notice to quit given by the landlord may be served on one of its officers.^^ If a notice to quit is served by mail it seems that the day on which it is de- livered by mail to the tenant will be considered as the date from which the notice to quit is to run.^^ 9 Van Studdiford v. Kohn, 46 Mo. App. 436; construing Rev. St. 1889, § 637. See, also, Langan v. Schlief, 55 Mo. App. 213. »a Langan v. Schlief, 55 Mo. App. 213. 10 Alwoilh V. Gordon, 81 Minn. 445, 84 N. W. Rep. 454; Candler V. Mitchell, 119 Mich. 564, 78 N. W. Rep. 551. A notice to quit put under the door of the tenants house will be valid as a common law notice if it can be proved to have come into the tenant's hands half a year before the expiration of the current year. Alfred v. Vickery, Car. & M. 280. 11 Beiler v. Devoll, 40 Mo. App. 251; Earl Orchard Co. v. Fava (Cal.) 70 Pac. Rep. 1073. Bell v, Rlnker, 30 111. App. 300; Cadwal- lader v. Loerce, 10 Tex. Civ. App. 1, 29 S. W. Rep. 666, 917. See, also, Jones v. Marsh, 4 T. R. 464. The service of a notice to quit is not suflBcient where, in case of a tenancy from month to month, it is served upon the tenant who is a storekeeper by delivering it to a salesman, of the tenant who, ow- ing to the temporary absence of his employer,, was in possession of the store and who was accus- tomed to receive papers for his employer delivered in his absence and to put such papers in a box provided for that purpose. Such person is not an agent of the ten- ant for the purpose of accepting service of such a notice within the meaning of Rev. St. 1889, 6371 and it not appearing that the said no- tice ever reached the principal the service was manifestly insufficient. Van Studdiford v. Kohn, 46 Mo. App. 436. 12 Doe V. Woodman, 8 East, 228. 13 See Reg. v. Slawstone, 18 Q. B. 388. It is not necessary that the notice to quit should be di- rected to the tenant if it can be proved to have been delivered to him at the proper time. Doe v. Wrightman, 4 Esp. 5. It may . TENANCY FROM YEAR TO YEAR. 175 § 124. A notice to quit given by an agent. Speaking gen- erally a notice to quit signed by an agent of either party to a lease is good if at the time of the agent's signing it he had author- ity to do so. The agent's authority may be inferred from his previous course of acting in reference to the landlord and to the premises. An agent to collect rents has presumptively no author- ity to sign or serve a notice to quit. In order that a notice given by an agent be sufficient, he must have had authority at the time it was given^ and it is not made good by its adoption by the principal after the proper time for giving it.^* "Where a notice to quit was given by an agent in the names of A and B and also several other parties, unnamed it was held valid only as to A and B.^^ As a general rule an agent with power to let premises as well as to receive the rents can determine the tenancy by a notice to quit.^® But a notice to quit given by an agent of the landlord whose only authority is to receive rents is not sufficient without a ratification by the landlord.^'^ A receiver with a gen- eral authority to let lands to tenants from year to year has also authority to determine such tenancies by a regular notice to quit.^* In the absence of a statutory requirement to that effect the authority of an agent to sign or serve a written notice to quit need not be in writing.^' either be served personally npon (N. C.) 677, 4 Scott, 396; 3 Hod- him or upon his attorney or it may ges, 84; 6 C. L. C. P. 235, 1 Jur. be left with his wife or his serv- 356. See also, Pearse v. Boultor, ant at his dwelling house or at 2 F. & F. 133; Hasler v. Lemoyne, the demised premises, Jones v. 5 Com. Bench. (N. S.) 550. Marsh, 4 T. R. 464, but in all such is Marsack v. Read, 12 East, 57. cases a statement of the character As to the form of the signature of the notice should be made to the name of the principal by A., the person with whom it is left. his agent, is preferable. But the See Doe v. Lucas, 5 Esp. 155, signing "H., agent for" the land- Smith V. Clark, 9 Dowl. 202. lord to a notice to quit is as effec- 1* Lyster v. Goldwin, 1 G. & D. tual as though the notice were 463, 2 Q. B. 143, 10 L. J. Q. B. 275; signed with the landlord's name Mann v. Watters, 10 B. & C. 626, 5 by "H., agent." Earl Orchard Co. M. & Ry. 357, 8 L. J. (O. S.) K. B. v. Fava, 138 Cal. 76, 70 Pac. Rep. 297. 1073. A notice given by an agent 15 Bailey v. Foster, 3 C. B. 215, should be given and signed in the 15 L. J. C. P. 263. name of his principal according to • 18 Manvers v. Mizem, 2 M. & the English cases. Buron v. Den- Rob. 56. man, 2 Exch. 188. 17 Rhodes v. Robinson, 3 Bing. lo No written authority is neces- 176 LAW OF LANDLORD AND TENANT^ § 125. Waiver of defects in the notice to quit. The service of a written notice to quit is waived by the acceptance of an oral notice.^*^ In general it may be said that all defects either in the substance or the form of a notice to quit or in the manner or time of its service are waived by delay in objecting if the party serving it has been induced to act relying upon the as- sumed validity of the notice and its service/^ Thus all object- ions to a notice to quit which has been served by the tenant is waived by the lessor resuming possession of the premises with the consent of the tenant.-^ A compliance with the notice to quit by the tenant waives all irregularities and informalities in it. So the action of the tenant in notifying his landlord, after he has received from him a notice to quit that he intends to move estops him from claiming subsequently that the notice to quit was insufficient.-^ A refusal to quit also constitutes a waiver by the tenant. The refusal of a tenant to quit on the ground that he is a tenant from year to year, waives any formal insufficiency^ of a notice to terminate a tenancy from month to month.^* § 126. Waiver of a notice to quit by a subsequent notice. A notice to quit which has been properly and timely served may be waived by the party who served it subsequently serving an- other notice the terms of which are inconsistent with the carrying out of the former notice to quit by the person upon whom it was served. Thus the service of a notice to the effect that in default of the payment of rent upon a certain day the lease will be con- sidered as terminated is an acknowledgment of the existence of the lease' when the notice was served and waives the effect of a sary under Cal. Civ. Code, § 2309, 612, 9 N. Y. Supp. 24, 27; Shirley when there is notice to quit, pur- v. Newman, 1 Esp. 266. porting to be signed for the land- 22 Williams v. Jones, 1 Bush, lord by his attorney, if the attor- (Ky.) 621; Graham v. Anderson, 3 ney has in fact authority to sign Har. (Del.) 364; Elgutter v. it. Felton v. Millard, 81 Cal. Drischaus, 44 Neb. 378, 63 N. W. 540, 21 Pac. Rep. 533. Rep. 19. 2« Smith V. Snyder, 168 Pa. St. 29 Baltimore Dental Ass'n v. 514, 543, 32 Atl. Rep. 64, 36 W. N. Fuller, 101 Va. 627, 44 S. E. Rep. C. 425; Montgomery v. Willis, 45 771, 773. Neb. 434, 438, 63 N. W. Rep. 794. 2* Drey v. Doyle, 28 Mo. App. 21 Ludington v. Garlock, 55 Hun, 249 TENANCY FROM YEAR TO YEAR. 177 prior notice to terminate the lease.-^ So if the landlord of a tenancy at will after the expiration of the time limited in a notice to quit serves a second notice to qnit he waives his right to proceed under the first notice.-® § 127. The effect of a notice to quit. The effect of the ser- vice of a notice to quit is absolutely to put an end to the relation of landlord and tenant between the parties as of the date men- tioned in the notice. The former tenant is thereafter under no obligations to pay rent as such nor is he liable to the former landlord for any breach of covenant occurring after the service of the notice to quit. He is still bound however for rent which may have accrued before the date which is named in the notice for the termination of the tenancy. "When the period of the notice has expired the landlord is at once entitled to possession and the tenant is thereafter a trespasser; or, at the most a tenant by sufferance unless, while he holds over, the landlord creates a new tenancy by receiving- rent or other similar acts constituting a waiver of the notice to quit. But the service of a notice to quit by the landlord does not make the holding of the tenant adverse to the title of the landlord. It will not permit the tenant there- after to deny the title of the landlord nor will it set running the statute of limitations in favor of the tenant and against the land- lord or in favor of any other preson. The tenant is still a tenant. Prior to the notice to quit he is a tenant under the lease. Subse- quent to the notice, provided it is effective to terminate the ten- ancy if he remains in possession he is a tenant holding over and may therefore be a trespasser or a tenant at will or for a new term, according to the circumstances and the conduct of the landlord toAvards him.^^ If after the termination of this period of notice mentioned in the notice to quit the tenant holds over and the landlord receives rent from him the tenant is a tenant from year to year on the terms of the former lease. If the land- lord does not receive rent from him he may eject him as a tres- passer. 25 Dockrill v. Schenk. 37 111. 954, 83 Hun, 298. See Doe v. Pal- App. 44. mer, 16 East, 36. 26 Morgan v. Powers 31 N. Y. S. 2" Sittel v. Wright. 122 Fed. Rep. 434, 436, 58 C. C. A. 416. 12 178 LAW OF LANDLORD AND TENANT. § 128. The withdrawal of the notice to quit. Either party to the lease, having served a notice to quit, may subsequently withdraw it orally or in writing by appropriate language. The withdrawal by the party who has served the notice must be con- sented to by the other or it will be ineffectual to restore the par- ties to their original position. For if the party on whom the notice has been served has acted upon it either by securing a new tenant, if he be the landlord, or by hiring new premises if he be the tenant, he may refuse to accept the withdrawal of the notice and the other party is estopped to compel him to continue the relationship of landlord and tenant. So the party who has been served with a notice to quit has an absolute right without giving a reason to refvise to assent to its withdrawal. Where a lessee has received from his lessor the notice to quit which is required to be given by the lease and later on the lessee going to the land- lord he is told he may stay, which he does, the notice to quit is altogether withdrawn and both parties are then remitted to the terms of the original lease, the covenants of which, being mutual, are a good and sufficient consideration for the new arrangement under which the tenant continues in possession. ^^ § 129. The waiver of a notice to quit by the receipt of rent. The duty to give notice of an intention to quit is reciprocal and consequently is a right which may be waived by either party to the lease who is entitled thereto. The waiver of a notice to quit after it has been given, is always in part at least a ques- tion of intent.'® A lessor may nullify the effect of a notice to quit served by him by his subsequent actions or language. Thus the effect of a notice to quit is waived by the landlord consenting that the lessee may continue in possession after the service of the notice to quit upon him.^" So, also it is unquestionably true, that the demand and acceptance of rent, as such by the landlord which becomes due after the service of the notice to quit and its payment by the tenant constitute a waiver of the notice to quit.^^ The receipt of the rent by the landlord raises an impli- cation of an intention on his part that the tenant shall continue 2s Supplee V. Timothy, 124 Pa. ■''o Arcade Inv. Co. v. Gieriet St. 375, 384. 16 All. Rep. 864, 23 (Minn. 1906), 109 N. W. Rep. 250. W. N. C. 386. 31 Collins v. Canty, 6 Gush. 20 Lucas V. Brooks, 85 U. S. 436, (Mass.) 415; Norris v. Morrill, 43 21 L. Ed. 779. N. H. 213; Stedman v. Mcintosh, TEX-VNCY FROil YE.Ui TO YEAR. 179 in possession which intention is inconsistent with the effect of a notice to quit. The same result follows when the landlord dis- trains for the rent after the expiration of the time mentioend in the notice to quit.^- But the money must have been received by the landlord as rent. Hence where, after the service of a notice to quit, a tenant holds over and the landlord brings an action of ejectment, and, pending- this action, the tenant surrenders posses- sion the action of the landlord in suing for and recovering a judgment against the tenant for the value of the use and occupa- tion of the property for the time the tenant has held over is not a waiver of the notice to quit as the money is not paid as a rent but for another purpose.^^ The landlord may, however, accept from the tenant after the service of a notice to quit the payment of rent which had accrued and was due and payable before the service of the notice without losing the benefit of the notice.^* The service of a notice to quit after the expiration of the time named in a prior notice is not a waiver of the effect of the prior notice in a case where a suit had been begun after the service of the latter notice and its prosecution was continued thereafter."^ It has also been held that mere acceptance of money though called by the tenant rent after a notice to quit has been given is not of itself a waiver on the part of the landlord of the notice but is merely a circumstance, to be taken with the other circum- stances of the case from which such intent may possibly be im- plied.^® For the money must not only be received as rent but it must in fact be rent and calling it rent by either party to the lease is not conclusive.^^ Thus, the presumption of a waiver which arises from the recept of rent by the landlord after the 27 N. C. 571, 573; Charter v. Cord- 33 Stedman v. Jrdntosh, 27 N. C. went, 6 T. R. 219, 220, 3 R. R. 161; 571, 573. Keith V. Nat. Teleph. Co., 63 L. J. 3* Norris r. Morrill, 43 N. H. Ch. 373 [1894] 2 Ch. 147, 8 R. 776, 213. 70 L. T. 276, 42 . R. 380, 58 J. P. 35 Ewing v. O'Malley (Mo. 573; Prindle v. Anderson, 19 Wend. App. 1904), S2 S. W. Rep. 1087. (N. Y.) 391; Anderson v. Prindle, se Cheany v. Batten, Cowp. 24n, 23 Wend. (N. Y.) 616. 9 East, 314n, 9 R. R. 570n; Fryett 32 Ward V. Willingale, 1 H. Bl. v. Jeffreys, 1 Esp. 393; Fitzpatrick 311, 2 R. R. 770. See. also. Jenner v. Childs, 2 Brews. (Pa.) 369. V. Clegg, 1 M. & Rob. 213, and s- in the recent case of West- Blight V Dennet, 13 Com. Bench, ern Union Telegraph v. Pennsyl- 178 as to effect of a demand for vania R. R. Co., 120 Fed. Rep. 362, rent the rule was stated to be that the 180 LAW OF LANDLORD AND TENANT. service of tlie notice to quit may be entirely overcome by proof that the rent was received by an agent without authority to re- ceive it, who received it in ignorance of the steps taken by his principal to determine the tenancy.^® § 130. When a notice to quit may be dispensed with by a surrender. Where from all the circumstances of the case or . from the conduct of the parties to a lease from year to year it Is clearly evident that they intended to terminate any particular yearly teiin without a notice to quit, the notice to quit will be wholly dispensed with.^^ Where the rule recjuiring a notice to quit in order to terminate a tenancy from year to year exists a tenant cannot dispense with the necessity for giving such notice by vacating the premises during the term or while the tenancy exists, and he will be liable for the use and occupation of such premises until the relation of landlord and tenant has been legally terminated by giving the notice required by the statute.*" But in some of the states where a tenancy from year to year arises from a holding over it has been held that the tenant may quit at the end of the specified term without giving any previous notice to quit.*^ An actual surrender by the tenant with an ac- acceptance of rent accruing after not only received but retained and a notice to quit had been given by collected. It was held that the ac- the landlord was not necessarily ceptance of the checks as rent an absolute ' is lawful but in both cases no rent can be demanded for there is no privity, nor can an action for use and occupation be sustained as the relation of landlord and tenant does not exist. If. however, a tenant at suft'erance is permitted to continue in the occupation of the premises by the consent of the landlord, either express or implied; he is thereafter liable for the rent which may be recovered at common law by means of an action 31 Thunder v. Belcher, 3 East, 14 Pac. Rep. 879, 883; Dixon v. 450; Shopland v. Ryder, Cro. Jac. Haley, 16 111. 145; Emmons v. 5.5. Scudder, 115 Mass. 367, 371; Flood 32 Thunder v. Belcher, 3 East, v. Flood, 1 Allen (Mass.) 217; 450. Delano v. Montague, 4 Cush. 33 1 Cruise, Dig. tit. 9, c. 2, § 6; (Mass.) 42, 45; Merrill v. Bullock, 4 Kent, Com. 116; 2 Black. Com. 105 Mass. 486, 490; Poole v. 151. See, as sustaining the text, Engelcke, 61 N. J. L. 124, 125, 38 Smith V. Houston, 16 Ala. Ill; Atl. Rep. 823. McLeran v. Benton, 73 Cal. 329, 236 LAW OF LANDLORD .Us^D TENANT. based on the fiction of a implied promise on the part of the ten- ant to pay what the use and occupation of the premises are reasonably worth to him.^* Some cases have gone further than this in liolding that a tenant at sufferance after the landlord's demand for, and the tenant's refusal of possession becomes liable for the rent or, at least, for the reasonable value of the use and occupation of the premises,^^ thus creatino^ a liability where there is no possibility of shoAving an assent by the landlord either express or implied to the holding over of the tenant at suffer- ance. In Massachusetts it has been provided by statute that "ten- ants at sufferance in possession of lands or tenements shall be liable to pay rent therefor for such time as they may occupy or detain the same," and that "such rent may be recovered in an action of contract."^® This statute does not define to whom a tenant at sufferance shall be liable to pay rent, or by whom he may be sued. The statute was clearly intended to confer an action in contract for the value of the use and occupation wher- ever the relationship of landlord and tenant by a lease for years or at will, or by permission or assent, express or implied had ex- isted betwen the parties or between the defendant and any per- son with whom the plaintiff was in privity of estate, though the plaintiff might not, but for the statute, have been in sufficient privity with the defendant to maintain the action. The statute was not meant to make an occupant of land liable to an action of contract for use and occupation by a person whose title he had never admitted, either expressly or by implication but had al- ways denied and whose tenant he had never been in any sense.*^ 3* Merrill v. Bullock, 105 Mass. sc Mass. Rev. St. § 23, and Gen- 486, 490; Keay v. Godwin, 16 eral Sts. c. 90, §§ 25, 26. Mass. 1, 4; Gould v. Thompson, 4 si Merrill v. Bullock, 105 Mass. Met. (Mass.) 224, 228; Harding v. 486, 492. See, also, Bunton v. Crethorn, 1 Esp. 57; Ibbs v. Rich- Richardson, 10 Allen (Mass.) 260; ardson, 9 Ad. & El. 849, 1 P. & D. Knowles v. Hull, 99 Mass. 562. 618; Christy v. Tanered, 7 M. & Where a tenancy at will is ter- W. 127. 9 M. & W. 438, 12 M. & W. minated by tlie execution of a 316; Bayley v. Bradley, 5 Com. lease of the premises to a stranger, Bf'nch, 56. by which the tenant at will be- a-' Smith v. Singleton, 71 Ga. 68, comes a tenant at sufferance, the 71; Jackson d. Livingston v. statutory liability of the tenant Niven, 10 Johns. (N. Y.) 335; at sufferance is to the new lessee Ilight d, Lewis v. Beard, 13 East, alone, and no judgment in favor of 210. the original lessor and the lessee TENANCY AT SUFFERANCE. 237 § 172. Action of trespass by the landlord against the tenant at sufferance. The possession of the tenant at sufferance being wrongful and, inasmuch as he has no interest as against the landlord, or even as against a stranger, except so far as posses- sion is conferred by the delay of the landlord in ousting him, the landlord may under some circumstances, at the common law and in the absence of a statute requiring judicial proceedings to be brought, enter upon the land and eject the tenant by force pro- vided he uses no more force than is necessar^^^^ He will not be liable in damages to the tenant at sufferance unless he uses exces- sive or unnecessary force. Thus, a landlord who, after notice to quit, enters the premises, while the tenant at sufferance was temporarily absent, by forcing the door open and places the ten- ant's chattels outside and re-fastens the door is not liable to the tenant at sufferance.^^ And where the tenant at sufferance after being thus ejected re-enters and re-occupies the premises, he be- comes thereby a trespasser from the day of his re-entry. The landlord cannot bring an action of trespass against his tenant at sufferance until he shall by an actual entry upon the land or by some other positive or public act declare his possession to be wrongful and adverse. For the original entry of the tenant at sufferance is lawful and hence he cannot be a trespasser while he continues to hold possession under his original entry. Thus, an action of trespass cannot be maintained by the landlord against the tenant at will who becomes a tenant at sufferance by holding over after his tenancy at will is determined by the oc- currence of an event over which the tenant at will had no con- as joint plaintiffs can be rendered. sas the common-law rule has been Cofran v. Shepard, 148 Mass. 582, abrogated by Gen. St. 1901, § 3S64. 20 N. E. Rep. 181. In New Jersey, Martin v. Allen, 67 Kan. 758, 74 by statute, a landord may recover Pac. Rep. 249. from the tenant at sufferance a ss Sampson v. Henry, 11 Pick, "reasonable satisfaction for the (Mass.) 379; Jackson d. Stans- lands, tenements and heredita- bury v. Farmer, 9 Wend. (N. Y.) ments held or occupied by the de- 20; Currier t. Gale, 9 Allen fendant," and when there was a (Mass.) 522; Hillary v. Gray, 6 parol demise or agreement reserv- Car. & P. 284; Newton v. Harland, ing a certain rent, that rent is the 1 M. & G. 644; Taunton v. Caspar, exclusive measure of the reason- 7 T. R. 431; Taylor v. Cole, 3 T. R. able satisfaction to be obtained. 292. Poole V. Engelcke, 61 N. J. Law, 39 Mussey v. Scott, 32 Vt. 82. 124, 126, 38 Atl. Rep. 823. In Kao. 238 LAW OF LANDLORD AND TENANT. trol and of which he was perhaps absolutely ignorant, at the time it happened, as, for example, the death of his landlord, or a lease of the premises by his landlord to another.*" The estate at will is by the occurrence of this event ended, but the tenant at will is not thereafter a trespasser for the reason that his orig- inal entry and possession were lawful. Having entered by a lawful title, he will be presumed to continue to hold under the lawful title by which he entered, and in subordination to the title of his landlord until the landlord, by some unquestionable act or language, expressly disaffirms the relationship which he bears to the tenant.*^ «> In Rising v. Staunard, 17 Mass. 282, on page 286, the court said: "It may be fairly deter- mined from these principles that when an estate at will is deter- mined by an event not within the knowledge of the tenant his hold- ing over will not amount to a tres- pass. Suppose, for example, that the estate is determined by the death of the lessor in a distant country, or by his conveyance of the land, of which the tenant can by no possibility have notice at the time of such death or convey- ance; it would hardly be con- tended that the tenant by holding over becomes a trespasser. For, as the law allows him a reasonable time to remove after notice given him to quit, he cannot be bound to quit without notice." *i Rising V. Stannard, 17 Mass. 282; Coke, Inst. 57; 2 Black. Com. 150. In the case of the sale of a house occupied by the tenant at sufferance the vendee may remove the goods of the tenant which he finds in the house after giving him reasonable notice to quit, as required by statute, and no time is specified. The vendee whose offer to take the goods wherever the tenant wished is re- fused by the tenant who neglects to tell him anything as to how they shall be disposed of may take them and store them to the order of the tenant. By this action he does not render himself liable for the conversion of the chattels. Lash V. Ames, 171 Mass. 487, 50 N. E. Rep. 996. CHAPTER IX. WHAT CONTRACTS ARE LEASES. 173. The definition of a lease. 174. Leases in reversion. Inter esse termini. 175. Formal and technical language unneceesary. 176. Words proper to create a lease. 177. Whether a writing is a lease or an agreement to make a lease. 178. Question for court or jury. 179. The intention of the parties. 180. The assent of the parties to a lease. 181. The consideration for the lease. 182. Some circumstances which tend to show an instrument is a lease. 183. No presumption of tenancy from possession alone. 184. The length of a term in an agreement to make a lease. 185. The term as stated in the lease. 186. Entry into possession as indicating a leases 187. The presumption of an existing tenancy from the pa>Tnent of money by the occupant to the owner. 188. The necessity for the payment of rent. 189. The performance of a contract to execute and deliver a lease. 190. The specific performance of an agreement to make a lease. 191. The measure of damages for a breach of an agreement to make a lease. 192. Letters constituting an agreement to make a lease. 193. A lease distinguished from a license. 194. Agreement permitting the cutting of timber. 195. The possession of a tenant under a void lease. 196. A lease with an agreement to sell the premises. 197. Lease or mortgage. 198. The lease of space in a department store. 199. A lease distinguished from a contract to furnish board and lodging. 200. Agreement to board and care for the owner of land. 201. An entry upon land of another under an option to purchase from him. 201a. .The mortgagee of the tenant's chattels in possession. 202. Future lease of an unfinished building. 203. Mortgagor or his tenant and a purchaser at a sale under fore- closure. 204. Contracts for advertising space. 240 LAW OF LANDLORD A2^D TENANT § 205. A purchaser of a crop on an execution sale. 206. The judgment debtor holding over after a sale on an execution. 207. Whether an instrument is a lease or a partnership agreement. 208. Contracts for steam heating and for steam and water power. 209. Miscellaneous cases. 210. Whether occupant of premises is servant or tenant. 211. The intention of the parties 212. Illustrations of the rule. 213. The character of the possession of the premises as determining whether an occupant is a servant or a tenant. 214. The power of the master to remove his servant from the prem- ises. 215. Contract of hiring by a religious society. 216. A public officer as a tenant of a county. 217. A servant holding over after his employment is at an end. 218. The rights of third parties. 219. The distinction between croppers and tenants. 220. The ownership of the crop. 221. The duties and the rights of the landlord and tenant. 222. The remedies of the parties. 223. Relation of landlord and tenant not presumed between vendor and vendee. 224. The default or the refusal of either party to perform. 225. An express agreement of the vendee to pay rent. 226. The entry of a vendee under a parol agreement to purchase. 227. The vendor of land continuing in possession after his convey- ance of the title. § 173. The definition of a lease. Many attempts more or less successful have ])een made to define a lease. Some of the defini- tions are too broad; others are too narroAv. Considering care- fully all the elements which enter into the relationship of land- lord and tenant we may safely define a lease as a contract by which the owner of lands and tenements, surrenders their pos- session, occupation, and enjoyment for all purposes to another person for life or for a fixed and certain term of years or during the phi-asure of the parties in return for a recompense in money, goods or services or some other valid consideration to be ren- dered by tlie i)ersons who, by the contract, become entitled to the jjossession, with a reversion in the owner after the expira- tion of the lease. Other definitions will be found in the notes. Leases are divided into leases in presenti where a present inter- est passe.ss and leases in reversion.^ 1 A lease Is a contract for the tenements on the one side and a possession and profits of lands and recompense of rent or other in- WHAT CONTRACTS ARE LEASES. 241 § 174. Leases in reversion — Interesse termini. All leases which are meant to commence at a future day are leases in re- version. AMiere the term is 1o commence at a future date and no present right of possession is conferred upon the tenant, it is a lease in reversion and the estate which is meant to be created by the lease is imperfect and incomplete and becomes perfect and complete only when the date arrives on which the term is to beg-in. Hence a lease for a term to begin in the future and a lease in reversion are synonymous. Both are leases which are to begin after the termination of another and prior interest in the premises then existing in another person.- Leases in reversion are unquestionably valid. " But under such a lease the lessee merely acquires an interesse termini until the arrival of the date when his estate is to commence in point of time. A lessor grant- ing a lease in reversion does not part with the reversion so as to prevent him from distraining for rent which may become due under the prior lease after the lease in reversion has been exe- cuted.' For a grant of a lease in reversion does not convey to the lessee any right to rent due the lessor under a prior lease. Where in a lease which is to take effect after the termination of an existing lease, the latter is recited, and the future lease is made to commence after such prior lease has terminated, the come on the other; or else it is a A lease is defined to be a species conveyance of lands and tenements of contract for the possession and to a person for life or years, or profits of lands and tenements at will, in consideration of a re- either for life or during the pleas- turn of rent or other recompense. ure of the parties; a contract by 4 Cruise's Dig. 115; 4 Bac. Abr. 1, which one person divests himself tit. "Leases;" 2 Bl. Com. 317; of, and another takes possession Shep. Touchstone, c. 14. "A lease of, lands or chattels for a term, doth properly signify a demise or whether long or short; a convey- letting of land, rent, common, or ance of any lands or tenements any hereditament, imto another made for life or at will, but always for a lesser time than he that doth for a less time than the lessor let it hath in it. * * * This has in the premises. Badger Lum- word also is sometimes, though her Co. v. Malone. 8 Kan. App. improperly, applied to the estate, 121. 54 Pac. Rep. 692. t. e.. the title, time, or interest ~ Allen v. Calvert, 2 East, 376, the lessee hath to the thing de- 383; Goodtitle v. Finucane, 2 Doug, mised, and then it is rather re- 565. ferred to the thing taken or 3 Smith v. Day, 2 'M. &. Wei., demised and the interest of the 684, 700. taker therein." Shep. Touch. 265. 16 242 LAW OF LANDLORD ^VND TENANT. lease in reversion will take effect at once after the terniiuation of the prior lease, whatever the cause of the termination of the prior lease. Hence, under such a situation of affairs, the future lease takes effect at once upon the termination of the prior lease by efflux of time, forfeiture or surrender, although in the hahen- dinii clause of the futura lease it is expressly made to commence ten or twenty veRvs from the expiration of the earlier lease. On the other hand, if the lease in reversion is made to commence say ten or twenty years from a future date, which is also the date of the expiration of the earlier lease, the future lease will only commence after the earlier lease has expired or would have expired by efflux of time, though in fact it has sooner expired by another cause.* At the common law an estate of freehold could not be made to commence in futuro without some prior estate of freehold to support it. Hence a lease for lives could not be made in reversion unless it was to begin after another estate in freehold granted by the same instrument. There was never any objection at the common law to creating an estate for a term of years to commence in futuro as such an estate was looked upon as a mere chattel interest for which liveiy of seizin was not required. In modern times when the necessity for livery of seizin no longer exists there can be no possible objection to making a lease for life to commence in futuro. By giving a lease for a term to commence at a future day, the tenant ac- quires the right to the possession when the day arrives. In the meantime should the landlord make a lease to one who enters and gives him possession, the tenant may maintain an action for dam- ages.^ But a lease in presenti possession, to commence in the fu- ture, vests a present interest in the term, and the lessee at once becomes I'csponsible for the rent.'' § 175. Formal and technical language unnecessary. At the -common law the proper and technical words of conveyance to be used in a lease, in order to create a valid interest in a term were, "farm let," "betake," "demise," "grant," or other sim- ilar words appropriate to a grant. ^ It is always advisable in the interests of certainty to employ some such words in the granting clause. But no particular words technical or other- * Woodhouse's Case, 1 Dyer, 93b; ^ Becar v. Flues, 64 N. Y, 518. Wrottesley v. Adams, 2 Dyer, 177b. s 4 Coke, Litt. 43b. « Trull V. GranRPr, 8 N. Y. 115. WHAT CONTRACTS ARE LEASES, 243 wise, or forms of expression are necessarj-^ to constitute a lease. Any language by which the possession and enjoyment of land are granted for a limited time, for a stipulated return, creates a tenancy and is, in effect, though perhaps not in name, a lease. The law will look to the intention of the parties rather than to the form of the instrument. In other words if, from the lan- guage employed by the parties, it is clear that they meant that one of them shall part with the possession and enjoyment, and that the other shall, for a consideration, passing from him to the other, or to some third person, enter into possession, it is a lease and the language employed is wholly immaterial.® The form is of no consequence. Nor is it necessarj^ that the word lease shall be used. If the words are in form a license, or cove- nant and other requisites of a lease are present, the writing is a lease.^° Thus letters passing between the parties which contain all the language necessary to a letting and hiring of premises ^^ or a receipt,^- may constitute a lease. On the other hand, thf, fact that the parties to a writing call it a lease is not conclusive that the writing is a lease where from the words of the instru- ment it appears that the parties meant that it should be some- thing else or it was meant for some other purpose.^^ 9 Jackson v. Hughes, 1 Black. Rep. 18 ; Maverick v. Lewis, 3 Mc- (Ind.) 421; Mimson v. Wray, 7 Cord (S. C.) 211; Mickle v. Law- Blackf. (Ind.) 403, 404 (receipt); rence, 5 Rand. (Va.) 571; Mason Waller v. Morgan, 18 B. Mon. v. Clifford, 4 Fed. Rep. 177. (Ky.) 136, 142; New York C. & lo Moore v. Miller, 8 Pa. St. 272, St. L. Ry. Co. V. Randall, 102 Ind. 283; Co. Litt. 45b. 453, 456, 26 N. E. Rep. 122; Pitts- n Ciilton v. Gilclirist, 92 Iowa, burgh, etc., Co. v. Thornburgh, 98 718 61 N. W. Rep. 384. lud. 201, 205; Moshier v. Reding, 12 Munson v. Ray, 7 Black. 13 Me. 478, 482; Bacon v. Bowdoin, (Ind.) 403, 404. 22 Pick. (Mass.) 401; Eastman v. i" St. Joseph & St. L. R. Co. v. Perkins, 111 Mass. 30; Boone v. St. Louis, I. M. & S. Ry. Co., 135 Stover, 66 Mo. 430; Coyne v. Mo. 173, 36 S. W. Rep. 602. Feiner, 16 N. Y. Supp. 203; Comp- "Where the conveyance of an es- ton V. Chelsea, 55 Hun, G09, 8 N. tate in land subordinate to that of Y. Supp. 622; Bussman v. Gauster, the grantor is made for a valuable 72 Pa. St. 286; Miller v. McBaier, consideration and for a definite 14 S. & R. (Pa.) 385; Watson term, the instrument of convey- V. O'Hern, 6 Watts. (Pa.) 362, ance is a lease. Less than this may 268; Pickering v. O'Brien, 23 Pa. be a lease; more cannot be re- Super. Ct. Rep. 125; Twiss v. quired." Xev York, etc., Co. v. Boehmer, 39 Oreg. 359, 65 Pac. Randall, 102 Ind. 453, 456, 26 N. 244 LAW OF LANDLORD AND TENANT. § 176. Words proper to create a lease. Words of present demise such as "doth let/' "doth demise," "agrees to pay for," "shall enjoy," "hath set" and to "farm let."^* "thereby set and let,"^^ "agrees to lease and let,"^** "agrees to let,"" "agrees to lease and let,"^* "hereby leases and demises,"^* and the like will generally constitute a lease even though the execution of a formal or future instrument appears to have been intended.^" The test in all cases seems to be whether the parties E. Rep. 122. In Louisiana a lease differs materially from a usufruct. The latter is a species of owner- ship, usually for life, with an obli- gation to pay taxes and repairs, and it may be mortgaged or trans- ferred. A lease is a personal right, giving only the use of the prem- ises, without any proprietory in- terest. Hoffman v. Laurans, 18 La. 70. An agreement by a town that, if a person will build a house to be used as a market house for the town, he should have the privilege of using it for a specified number of years, at the end of which it would become the property of the town, is not a lease. No interest in land is conveyed. All that is gi-anted is the right or privilege of keeping this house as a market, in conformity with the town ordi- nances." Brookhaven v. Baggett, 61 Miss. 383. 390. 14 Jackson v. Kisselbrack, 10 Johns. (N. Y.) 336. i"' Baxter v. Browne, 2 W. Bl. 973. i« People v. St. Nicholas Bank, 3 App. Div. 544, 38 N. Y. Supp. 379, affirmed in 151 N. Y. 592, 45 N. E. Rep. 1129, in which the par- ties agreed to execute and ex- change leases prior to the occu- pancy of the premises, "such leases to be drawn on, and this agreement being subject to, all the Ijrovi.sions of the blank forms in ase in" the lessor's building, etc. The agreement was held a valid lease, though the formal lease con- templated was never executed. 17 Kabley v. Worcester G. L. Co., 102 Mass. 392; Western Boot & Shoe Co. V. Gannon, 50 Mo. App. 642; Hallett v. Wylie, 3 Johns. (N. Y.) 44, 3 Am. Dec. 457. isAverill v. Taylor, 8 N. Y. 44; Hunt V. Comstock, 15 Wend. (N. Y.) 665, 667. I'j Weed V. Crocker, 13 Gray (Mass.) 219, 224; Bacon v. Bow- doin, 322 Pick. (Mass.) 491. • 20 Wright V. Trevezant, 3 C. & P. 441; Doe v. Groves, 15 East, 244; Baxter v. Brown, 2 W. Bl. 973; Hand v. Hall, L. R. 2 Ex. Div. 355; Doe v. Benjamin, 9 Ad. & E. 644; Fiske v. Ernst, 62 N. Y. Supp. 429, 96 N. Y. St. Rep. 429; Ver Steeg v. Becker Moore Paint Co. (Mo.), 80 S. W. Rep. 346, 351; Western Shoe Co. v. Gannon, 50 Mo. App. 642; Bradley v. Metropol- itan Music Co., 89 Minn. 516, 95 N. W. Rep. 458, 459. An agree- ment that one "hereby lets, de- mises and leases," to have and to hold for a term ending on a certain date at a rent specified in instalments "said rental to begin when the building hereinafter de- scribed shall be ready for occu- pancy," and the other party binds himself to erect a building there- on, is a lease in presenti for a WHAT CONTRACTS ARE LEASES. 245 have left anything incomplete, for if not, the agreement may operate as a present demise.-^ Thus if the owner of the demised premises agrees to make certain alterations and improvements and the intending lessee agrees to take a lease when the premises shall be thus altered and improved, and the term was to begin from the day the improvements were completed, the writing is an agreement for a lease and not a lease^ though it contain words of present demise.-- An agreement for a future formal lease may be considered as one circumstance showing intention, though it is never when taken alone conclusive that the writing is merely an agreement. If there are apt words of present de- mise, an agreement for a further lease will not make the instru- ment a mere agreement to execute a lease but the agreement for a formal lease will be considered as in the nature of a covenant for further assurances.^^ If, however, there are no term to begin in futuro, the cer- tainty of the commencement of the term being satisfied by the subse- quent completion of the building. Colclough V. Carpeles, 89 Wis. 239, 61 N. W. Rep. 836. See, also, St. Louis Brewing Ass'n v. Nie- derluecke, 102 Mo. App. 303, 76 S. W. Rep. 645, citing Doe dem. Phil- lips V. Benjamin, 9 A. & E. 644; Chapman v. Bluck, 4 Bing. N. C. 187. The words "I agree to let and hereby do let" (People v. Kel- sey, 38 Barb. (N. Y.) 269; Bacon V. Bowdoin, 22 Pick. (Mass.) 401, and the words, "A. hath let" are sufficient to create a lease. Liv- ingston V. Kisselbrock, 10 .Johns. (N. Y.) 336. So it has been held In England that a covenant "to stand seized," where it is made by the owner of land or a covenant of quiet enjoyment (Pritchard v. Dodd, 5 B. & Ad. 689), is a lease. For it has been held in England that a covenant of this character accompanied by an entry on the premises to which it relates is a lease. As soon as a covenant is made and accepted by the lessee he has a right to enter, which on his entry becomes a lease. Capley V. Hepworth, 12 Mod. 1; Co. Lift. 37. So the words, "shall have and enjoy," amount to a lease without other words. Whitlock v. Horton, Cro. Jac. 91. 21 Kabley v. "Worcester G. L. Co., 102 Mass. 392, 395; Doe v. Ries, 8 Bing. 178. Where an owner of land "agreed to rent or lease" land to a gas company for the storage of materials or to erect a building on it, and at its request cleared the land of timber, it is a lease, though the gas company never used or occupied the land in any way. Kabley v. Worcester G. L. Co., 102 Mass. 392, 395. See, also, Duncklee v. Webber, 151 Mass. 408, 24 N. E. Rep. 1082; Charlton v. Columbia R. E. Co., 64 N. J. Eq. 631, 54 Atl. Rep. 444, 447. 2" Jackson v. Delacroix, 2 Wend. (N. Y.) 433, 440. -■i Bradley v. Metropolitan Music Co., 89 Minn. 516, 95 N. W. Rep. 246 LAW OF LANDLORD AND TENANT. clear, explicit or unequivocal words of present, demise, a pro- vision for the execution of a lease in future will usually be regarded as raising a presumption that the parties intended the instrument as an agreement for a lease and not as a lea.se itself.2* In all cases the fact that the tenant has gone inta the possession of the demised premises as a tenant is of great force and effect to show an intention that the contract should be taken as a lease and not as an agreement. It will be diffi- cult, if not im.possible, to find a case where words of present demise followed by possession have not been construed as con- stituting a lease. 2= The fact that the building, a portion of which one ''agrees to lease," is at that time in process of con- struction and also that the commencement of the lease is not mentioned at all in the agreement to lease does not necessarily prevent an instrument from being a present demise where such is clearly the intent of the parties. Nor does it alter the situa- tion of affairs under such a contract that the party who agrees to lease had no title when he made the agreement to lease but merely an agreement for a future formal lease to be executed to him when the building should be completed. ^^ § 177. Whether a writing is a lease or an agreement to make a lease. It is often extremely difficult for the courts to distiri- guish between a written lease and a writing which is merely an agreement to make a lease. The distinction is always very im- 458, 459; Jackson v. Kisselbrack, ties to be defined, and it contains 10 Johns. (N. Y.) 336, 337, 6 Am. apt words to operate as a present Dec. 341. demise, it will be so construed. 24 Goodtitle v. Way, 1 T. R. 735; Otherwise it will be regarded as Doe V. Clare, 2 T. R. 739; Doe v. an agreement only. Subsequent oc- Ashbumer, 5 T. R. 163; Doe v. cupation, like other acts and con- Smith, 6 East, 530. See, also, Har- duct of the parties to a contract rison v. Parmer, 76 Ala. 157, 161; in relation to its subject matter, People ex rel. Norton v. Gillis, 24 may aid, upon the question of in- Wend. (N. Y.) 201; People v. St. tention, in the interpretation of Nicholas Bank, 3 App. Div. 544, 38 their agreement, but they cannot N. Y. Supp. 379. control it against the meaning of 23 Jackson v. Delacroix, 2 Wend. the words used nor supply a mean- (N. Y.) 433, 440. "If the instru- ing which the words will not rea- ment, upon its face, puri)orts to sonably bear." McGrath v. Bos- be the contract upon which the ton, 103 Mass. 369, 372. occupation la to be enjoyed, and 20 Western Boot & Shoe Co. v. the relations and rights of the par- Gannon, 50 Mo. App. 642. WHAT CONTRACTS ARE LEASES. 217 portant since the consequences of the breach of a lease are very- different from the consequences of the breach of an agreement to make a lease.-' The distinction is important for it may hap- pen that a writing which one party supposed to be merely an agreement to make a lease may turn out to be a lease passing an estate in the land by reason of which the other party will escape the obligation of covenants which would have been inserted had both parties to the instrument understood the instrument to have been a lease and not an agreement for one. The distinction is also clearly manifest where we consider that by a lease the lessee acquires an actual interest in the land called an interesse termini which upon entry vests a possession in him which he may regain if ousted, by ejectment. Under an agreement for a lease all he has is a cause of action for any damages that he may suffer in the event of the landlord 's failure to execute the lease,-'^ or he may file a bill in equity for a specific performance of the agree- ment to give a lease.^*^ "Whether an instrument is to be construed as a lease, or as an agreement for one, depends upon the in- tention of the parties to be collected from the instrument it- self, the entry on the subject matter with reference to extrin- sic circumstances or the subsequent acts of the parties.^^ If ^e instrument apparently purports to create a right to de- mand a lease to be executed at some time in the future, it will be presumptively a contract to make a lease and not a lease itself. As is elsewhere pointed out, everything depends upon the intention of the parties which must be gathered from their language as contained in the writing, and construed in the light of the facts and circumstances of the case. If the instrument, while speaking of an intention to lease, leaves something material incomplete and to be arranged in the future as where it leaves the length of the term to be subsequently de- termined, or fails to fix the precise amount of rent payable, it may be regarded merely as an agreement for a lease. An agree- ment by which a land owner agrees by parol that he ivill lease 27 Donovan v. P. Schoenhofen 29 Western Boot & Shoe Co. v. Brewing Co., 92 Mo. App. 341. Gammon, 50 Mo. App. 642; Doe d. 28 Price V. Williams, 1 Mee. & Morgan v. Powell, 8 Scott (N. R.) Wei. 6. 6S7, 7 Man. & G. 9S0, 14 L. J. C. P. z8a Harrison v. Palmer, 76 Ala. 5. 8 Jur. 1123; S. P. Morgan d. 157, 161- Doweling v. Bissell, 3 Taunt. 65. 248 LAW OF LANDLORD AND TENANT. another liis Lnncl for a terra at a reasonable rent which is to ho subsequently agreed on by the parties: and to be payable in promissory notes to be subsequently executed and delivered, is not a lease but merely an executory agreement to make one.^" So, in a case where an agent has authority "to close a lease" on the part of the lessee and he submits an offer to the prospective lessor who states that he will accept it and directs the agent to prepare a lease and the agent at once informs the party he repre- sents of the acceptance and forthwith prepares a lease which is never executed, the transaction is not a lease but merely an agreement to make one.'^ So, an oral agreement suggesting the terms of a lease which is subsequently to be committed to writing and executed by the parties and containing nothing which authorizes the lessee to enter into possession, is not a lease. It is an agreement to make a lease which either party may re- scind until it is executed unless the owner has permitted the les- see to go into possession, in which event it creates a tenancy at will. The lessee is not entitled to possession under such an agreement as it is is not a lease, but has an action in damages for a breach of it, consisting of a refusal to execute a lease. Thus, where an "agreement" was made by an owner to lease his premises and he subsequently thereto receipted for a sum of money "on account of an agreement for a lease, for which details are to be settled on" and a lease was thereafter drawn which contained terms which were not contained in the writing, there was no lease but merely an agreement to make a lease at some future date.^^ An owner and another person may make 30 Gibson v. Needham, 9G Ga. been orally agreed on by the par- 172, 174, 22 S. E. Rep. 702. ties. Martin v. Davis, 96 Iowa, 31 Arnold v. R. Rothschild's 718, 65 N. W. Rep. 1001, where the Sons Co., 164 N. Y. 562, 58 N. E. writing was as follows: "Agree- Rep. 1085, affirming 37 App. Div. ment, this is to certify that I have 564, 56 N. Y. Supp. 161; Larous- rented my farm for the year 1895 sini V. Werlien, 52 La. Ann. 424, for the some of $300.00 payment 27 So. Rep. 89; Francke v. Hewitt, to be stated in contract to the said 56 App. Div. 497, 501, 68 N. Y. D. (Signed) L. M." and the court Supp. 968, in this case the tenant refused to regard this as a lease being in possession of the build- l)ut merely a memorandum for a ing was told by the landlord to go future lease. ahead and make repairs and he S2 Charlton v. Columbia Real Es- would prepare a lease according to late Co., 64 N. J. Eq. 631, 54 Atl. terms as to rent, etc., which had Rep. 444, in which the court says WHAT CONTRACTS ARE LEASES. 249 an agreement to execute a lease at a future time upon the con- dition of the occurrence of a some future event. They may- agree that if a certain specified event shall happen the owner and the other person shall make a lease and they may also agree upon all the terms upon which the future lease shall be made. If the event upon which the making of the lease is conditioned shall happen, the owner is obligated to make the lease and the promisee may recover damages for his failure to do so. If the event shall not happen there is no duty upon either party to enter into a lease. Thus an agreement by an owner to make a lease to a railroad company provided the road shall be completed within a year is an agreement upon condi- tion, to be void if the road is unfinished, is not a lease and does not create the relation of landlord and tenant between the par- ties to it." . that it is absurd to say the parties have entered into an agreement when the only evidence of such agreement is a writing stating that details are to be settled at some future time, citing Ridgway V. Wharton, 6 H. L. C. 305. 33 Proctor V. Benson, 149 Pa. St. 254, 258, 24 Atl. Rep. 279. A writ- ing containing the language "I hereby agree to give a lease" can- not be construed as a lease where the circumstances attending its ex- ecution show that the parties to it meant that a formal lease in writing was to be executed before possession was delivered to the tenant. St. Louis Brewing Ass"n v. Niederluecke (Mo. App. 1903), 76 S. W. Rep. 645. "The general rule is stated to be that no precise words or technical form of lan- guage are required to constitute a present demise, and that if there are words showing a present in- tention that one is to give, and the other to have possession for a determinate term a tenancy is created; and that where there are words of present demise the in- strument should operate as a lease, and not as an agreement for a lease." By the court in Colclough V. Carpeles, 89 Wis. 239, 244. In pleading a lease at common law it is a rule to plead a lease accord- ing to its legal effect. If this is done and the plaintiff proves only an agreement for a lease it is a material variance. Price v. Wil- liams, 1 Mee. & Wei. 6, 13. In the case of Francke v. Hewitt, 56 App. Div. 497, the question of contracts to make leases was very thor- oughly discussed. This is an in- teresting case and should be care- fully read. The court held in sub- stance that a tenancy might be created where the negotiations are in writing and a formal writ- ten contract is stipulated for into which the negotiations are to be reduced. And if the minds of the parties meet upon all the terms of the future lease and these terms are in all respects definitely un- derstood and agreed upon the con- tract is a complete lease though 250 LAW OP LANDLORD AND TENANT § 178. Question for court or jury. Whether a writing con- stitutes a lease is a question for the court to determine as a mat- ter of construction. . If an oral agreement is relied upon and the facts are undisputed the court may determine whether it is a lease without submitting the question to the jury.^* This rule of practice is based upon the rule that the construction of a writing is a question for the court. The court may determine that a Avriting is a lease and at the same time it may require or permit oral evidence of an entry by the tenant. If there is any contradiction as to the entry and occupation by the tenant it is not error to leave the question of the existence of the relation- ship of landlord and tenant to the juiy upon all the facts.^^ Where there is a dispute as to the facts the question whether the relationship of landlord and tenant exists is one of fact for the jury to determine.^® § 179. The intention of the parties. The general rule that the nature of an instrument depends upon its construction and that this is always a question of the intention of the parties is applicable to a lease. Whether an instrument is or is not a lease always depends upon what the parties intended it to be. The in- tention under general rules must be collected from the whole in- strument regarded in the light of the surrounding circum- stances.^^ The fact that the parties called it a lease is not always controlling. The question whether an instrument is or is not a the subsequent lease was never ex- 119 Pa. St. 637, 13 AtL Rep. 632; ecuted. The court cited Wilbur v. McKenzie v. Sykes, 47 Mich. 294, Collins, 4 App. Div. 418, in which 11 N. W. Rep. 164; Chamberlin v. it was said if the minds of the par- Donohue, 44 Vt. 57. ties did not meet as to all essen- 3- Johnson v. Phoenix M. L. I. tial parts of the contract there Co., 46 Conn. 92; Potter v. Mercer, was no lease. Of course, if a writ- 53 Cal. 667, 672; Bacon v. Bow- ten contract was subsequently to dcin, 22 Pick. (Mass.) 401, 405; bo drawn up and it was left until Gibson v. Needham, 96 Ga. 172, 22 then to agree upon some of its S. E. Rep. 702; Jackson v. Dela- terms and conditions there was no croix, 2 Wend. (N. Y.) 433, 439; lease. Griffin v. Knisely, 75 111. 411; Don- s* Howard v. Carpenter, 22 Md. ovan v. P. Schoenhaefer Brewing 10. Co.. 92 Mo. App. 341; Salomon v. asBaldwell v. Center, 30 Cal. Weisberg, 61 N. Y. Supp. 60; 539, 89 Am. Dec. 131. Thomson v. Payne, 5 Johns. (N. ?'«Doe V. Gray, 2 Houst. (Drl.) Y.) 74; Colclough v. Carpeles, 89 135; Jackson V. Vosburgh, 7 Johns. Wis. 239, 245; Shaw v. Farns- (N. Y.) 186; Rothermel v. Dunn, Avorth, 108 Mass. 357. WHAT CONTRACTS ARE LEASES. 251 lease is sometimes ver^'' important for frequently by statute the landlord is entitled to remedies under a lease which parties to other contracts cannot enforce. The intention for this reason is particularly important foV if the parties did not intend the in- strument to be a leasie then it follows that they did not intend that the owner of the lease should have these remedies against the other parties to the contract which the landlord generally pos- sesses. As is elsewhere seen there are certain appropriate words which are commonly used in leases. But the instrument is not a lease though it contains the usual word ' ' demise, ' ' if its contents show that the parties to it did not intend that it should be a le.ase.^* For the court may do violence to the express language of any writing rather than nullify the intention of the parties by con- struing it so that the writing is a lease where the intention of the parties was manifestly otherwise.^^ The question as to what is the instrument, often arises in attempting to distinguish between a lease and an agreement for a lease. The use of the words ' ' agrees to let," or similar words in the writing is not alone conclusive if the parties intended that the writing should be merely an agreement for a lease.*" Such language may constitute an actual hiring or leasing of real property if upon all the lan- guage of the instrument it is apparent that the parties intended to make a lease ; but an express provision in an instrument that it shall not operate as a lease but only as an agreement for a future lease is conclusive on the court to show the real intention of the parties in spite of any inferences to the contrary that may be gathered from other p;irts of the same writing.*^ § 180. The assent of the parties to a lease. The general rules and principles which regulate and govern the law of contracts in relation to the necessity for the assent of the parties thereto are always applicable to contracts to lease. There must be a meeting of the minds of the parties; that is, there must be an assent or agreement of the persons who claim or are claimed to be landlord and tenant before there can be a lease. In other 38 Taylor v. Caldwell, 3 B. & S. ^o Weed v. Crocker, 13 Gray 826, 32 L. J. Q. B. 1G4, 8 L. T. (Mass.) 219, 224; John v. Jenkins, 356, 11 W. R. 726. 3 Tyr. 177; Browne v. Warner, 14 39 Jackson v. Delacroix, 24 Ves. 156. Wend. (N. Y.) 433, 439; Hallett 4i Perring v. Brooke, 1 Mood. & V. Wylie, 3 Johns. (N. Y.) 44. Ry. 510. •2oi LAW OP LANDLORD AND TENANT. words, as the law is laid down in the general law of contracts, there must be an offer on the one side and an acceptance on the other, and the lease is not made until the offer in all its details is met by an acceptance which includes the whole of the offer/^ It is immaterial by whom the offer is made provided it be ac- cepted nor must the offer be couched in express language for an offer may be made by conduct as well as by language. On the other hand, the acceptance of the offer may be by conduct, as for example by the tenant to whom premises have been offered, entering into the possession of the same. The offer must be ab- solutely accepted in order to make a lease and the terms pro- posed by the parties making the oft'er must be assented to in their entirety. A counter-oft'er rejecting a portion and accept- ing a portion of the original offer is pennitted, but until this counter-offer is in its turn accepted, no lease exists. Thus, where the landlord offers the premises to be leased at a rental specified by him, an offer by the proposed tenant at a lower rental is not an acceptance. And if the so-called acceptance of an offer by the landlord differs in the particulars from the offer made either in the rent to be paid,*^ in the character of the premises, or in their use; in the length of the term or in any other material respect; or it attempts in any way to vary the offer, there is no assent and consequently no lease. The person to whom the proposal for a lease is made may either wholly accept or he may wholly reject. Either of these he will be presumed to have done for an answer to offered terms suggesting other terms dif- fering from the offer is conclusively presumed to constitute a rejection of the terais offered.^* Hence, where a lease in writing •«2 Ver Steeg v. Becker, Moore Rep. 898, 899. See, also, Culton v. Paint Co. (Mo.), 80 S. W. Rep. 346, Gilchrist, 92 Iowa, 718, 721, 61 N. 353; Wood v. Scarth, 2 Kay & J. W. 384, 385; Jackson v. Rode. 7 33, 1 Jur. (N. S.) 1107, 4 W. R. 31. Misc. Rep. 680, 682, 28 N. Y. Supp. 43 Scottish Mortg. Co. v. Taylor 147; Smith v. Caputo, 14 Misc. (Tex. 1905), 74 S. W. Rep. 564. Rep. 9, 10, 35 N. Y. Supp. 127; •It Hammond v. Winchester, 82 Gramm v. Sterling, 8 Wyo. 527, Ala. 470, 470, 2 So. Rep. 892; Smith 535, 59 Pac. Rep. 156; Majors v, V. InKraiii, 90 Ala. 529, 531. 8 So. Goodrich (Tex.), 54 S. W. Rep. Rei). 144; Cochiane v. .Justice Min- 919; Lever v. KofHer, 70 Law J. ing Co., 16 Colo. 415, 26 Pac. Rep. Ch. 395, (1901) 1 Ch. 543, 84 Law 780; Gifford v. King, 54 Iowa, 525, T. 584, 49 Weekly Rep. 506; Castro 529. 6 N. W. Rep. 735; Erickson v Gaffey, 96 Cal. 421, 31 Pac. Rep. V. Wallace, 45 Kan. 430, 25 Pac. 363; Hill v. Coal Valley Min. Co., WHAT CONTRACTS ARE LEASES. 253 was by the lessor sent to the lessee for his signature, and the latter, without the consent of the lessor, put in the lease a clause giving him the privilege of sub-letting and binding the lessor to keep in repair a portion of the premises, there is no acceptance of the lessor's offer. The alterations and insertions are a mate- rial variation from the offer. Unless they shall in turn be accepted by the lessor they are the same as a rejection of the lessor's offer.*^ An offer to execi,ite a lease being without consideration is revoc- able any time before its acceptance. If a time is specified for the acceptance of the offer by the other party, the offer is presump- tively open for acceptance during that period; and, if the per- son who has made the offer desires to revoke it during that time he must notify the other party of his intention to do so. The offer to make a lease in such case is a continuing offer unless ex- pressly revoked during- the time which is limited for its accept- ance; it may be accepted or rejected by the person to whom it is made at any time during the period named. Before the offeree shall have acted upon it, the person making the offer ma}^ revoke it, but after the former has accepted it by conduct or words, it becomes a lease. Before the acceptance there is neither any assent nor consideration upon which a valid and binding lease could be predicated. The acceptance of the off'er of a lease at the same instant supplies both assent and consid- eration and creates a contract of lease whose terms are those contained in the oft'er. The minds of the parties have met upon terms satisfactory to both and the acceptance of the offer by the party to whom it was made is a good and valid consideration for the party who has made the offer."*^ The acceptance of the offer to constitute a valid lease need not be couched in any par- ticular language. So, where an offer is made to rent premises and it is neither expressly rejected, nor declined, a subsequent inquiry by the prospective lessee if he could move in to which an affirmative answer is made will constitute a lease.*^ So, the acceptance of an oft'er of a lease made by the owner may be im- 103 111. App. 41; Smith v. Colby, 46 Pettibone v. Moore, 73 Hun, 136 Mass. 532; Highland Co. v. 461, 464, 465, 27 N. Y. Supp. 455 Rhoads, 26 Ohio St. 411. (lease). •*5Ver Steeg v. Becker, Moore '"Smith v. Ingram, 90 Ala. 529, Paint Co. (Mo.) 80 S. W. Rep. 8 So. Rep. 144. 346, 353. 251 LAW OF LANDLORD AND TENANT. plied from the conduct as well as from the language of the ten- ant. Thus, where an owner in reply to an inquiry by a tenant whose lease was soon to expire, informed the latter by mail that he expected to be in their county in a short time but that if the tenant did not see him or hear from him in the course of a few days, he might rely on having the land on terms mentioned, the action of the tenant in holding over and proceeding to break the land and put in a crop shows an acceptance of the landlord's terms."' § 181. The consideration for the lease. There must also ap- pear some consideration, whether express or implied, in the lease. It may appear in the written lease itself or it may be proved by parol evidence. The general rules of law regulating the subject of consideration, so far as they apply to the law of contracts are applicable to leases and these rules as generally set out in the text books and eases may be consulted. A lease with- out any consideration is void.*'' A promise by each of the parties to the lease to the other is the usual considcrntion in a lease. The 4s Springer v. Cooper, 11 111. App. 267. There is no contract of lease where the negotiations are conducted entirely by letters through the mail, and the pro- posed tenant requests to lease the land for five years while the pro- posed landlord in reply states that he can have it for three, but the tenant does not accept this propo- sition. An offer of one party as- sented to by the other will con- stitute a lease but the assent must comprehend the whole of the prop- osition. The assent must be ex- actly equal in its extent and terms and must not qualify the accept- ance with new matter. Hence, an accei)tance of the offer on terms varying for it is certainly a re- jection. Errickson v. Wallace, 45 Kan. 430-433. 25 Pac. Rep. 89.8. A lease is not made where a tenant, being in possession, another party applies by telegram to rent the house for a month and the land- lord refusing to rent for a month says he may have it for a year. Gifford V. King, 54 Iowa, 525, 530, 6 N. W. Rep. 735. A letter which accepted the terms offered by the landlord but also stated that the tenant would like to build a cook room wfEh a privilege to remove it constitutes a lease and the question in regard to the cook room is not a variance of the offer. Culton v. Gilchrist, 92 Iowa, 718-721, 61 N. W. Rep. 384. It is not essential that the offer of lease should be accepted in writing. Moving into the premises after having asked by telephone whether it would be satisfactory without proposing or suggesting any change of the terms is an accept- ance of the landlord's offer and is a sufficient lease. Smith v. In- gram, 90 Ala. 529, 531, 2 So. Rep. 892. ■•o Rrown v. Roberts, 21 La. Ann. 508. 510. WHAT CONTRACTS ARE LEASES. 2oO •consideration passing from the tenant to the landlord is the promise of the tenant to pay rent to the landlord or to some third person at his request. On the part of the landlord the considera- tion is his demise of the premises for a stipulated term and his promise to give possession. This is a good consideration on the part of the landlord though it is not under seal.^° So an express reservation of rent by the landlord, or a promise to pay him rent though it is not under the seal of the tenant, is also a good consideration for the covenants of the landlord, but such a prom- ise is not indispensable in a lease as it may always be implied.'^'- Other considerations by the tenant are equally valid. The tenant may promise to pay rent in goods or produce or he may promise to render the landlord personal services for the rent, or he may promise to board and maintain him. Any of these promises are good as a consideration. A new lease entered into by the parties to take the place of the old one must be upon a new consideration which differs from the consideration in the old lease. An agree- ment by a tenant who holds under a lease by which the rent is payable monthly that he will thereafter pay rent semi-monthly is a sufficient consideration on his part for a new lease at a lower rental. The new lease having been fully executed by the tenant continuing in possession and the rent paid by him in accordance with its terms while he is in possession a landlord cannot there- after claim that it is void because without consideration. ^- § 182. Some circumstances which tend to show an instru- ment is a lease. Various circumstances in connection with the execution of an instrument in writing concerning which the in- quiry is whether it is a lease or merely an agreement to make one, have been seized upon by the courts to enable them to deter- mine the true character of the writing. So, also, the court will always take into consideration the mode in which the parties are to carry out or perform the writing. The intention and sub- stance of the writing will be considered rather than its forni.^-^ •■0 Hill V. Woodman, 14 Me. 38, and even though it contain a stip- 43. ulation that a formal lease in 51 Chadbourn' v. Rahilly, 34 writing shall be subsequently exe- Minn. 346, 2.5 N. W. Rep. 643. cuted. the question has frequently 02 Goldsborough V. Gable, 36 111. arisen whether the written agree- App. 363, 369. ment operates as a lease in pres- 52a "When an agreement for a enti, or only as an agreement for lease has been reduced to writing, a lease in futuro. In such cases 256 LAW OP LANDLORD AND TENANT. The circnmstance that the tenant is let into possession under the so-called agreement for a lease, is often the controlling fact to show that the parties intended a present lease,^^ but the circum- stances that the tenant is in actual possession, and so need not be let into possession, is not controlling if upon all the facts, the parties meant the agreement to be a lease." The circum- stance that a tenant entered on premises under what appears to be an agreement for a lease and expends a large amount of money in making improvements with the knowledge of the land- lord, may indicate an intention that the instrument shall be taken as a lease. It is presumed that the tenant would not have spent the money unless he believed that the possession was secured to him by a lease.^^ An instrument containing words of present the rule, as established by numer- ous decisions is, First, that effect will be given to the instrument according to the intention of the parties, to be ascertained from all the terms of the instrument itself, considered in the light of the sur- rounding circumstances. Second, that if the instrument contain Avords of a present demise, it will be deemed a lease in presenti. un- less it appear from other portions of the instrument that such was not the intention of the parties. Third, that if possession be given under the agreement this will be a circumstance tending to prove that it was intended as a lease in presenti." By the court in Potter V. Mercer, 53 Cal. 667, 673. 53 Hanerton v. Stead, 3 B. & C. 478; Chapman v. Bluck, 4 Bing. (N. C.) 187, 5 Scott, 513, 1 Am. l->, 7 L. .T. C. P. 100, 2 Jur. 206. 51 Doe d. Phillips v. Benjamin, 9 A. & E. 644, 1 P. & D. 440, 8 L. J. Q. B. 117. !■'!■> Poole V. Bentley, 12 Ea.st, 168, 2 Camp. 286. The entry into pos- session by a tenant under an agreement for a lease was held to constitute a lease although the agreement was to execute a lease in the future. Poole v. Bentley, 12 East, 168, in which case Lord El- lenborough said in substance that while the intention was to con- trol, the fact that the tenant was to expend much capital upon the premises during the first four years of the term shows that he was to have a present legal inter- est in the term which was to be binding on both parties although after progress was made in build- ing a more formal lease in which the premises might be more par- ticularly described would be exe- cuted. This case was cited in Chapman v. Bluck, 4 Bing. (N. C.) 187, 195, where the court said that while it was difficult to recon- cile all the cases on the question whether certain Instruments shall be taken to operate as agreements for leases or as actual demises, the fact that the tenant entered possession after a correspondence between the parties constituted him a lessee and the landlord was authorized to distrain for rent. For other cases in which an agree- ment contained words of present (li'niise has been held to be a lease. WHAT CONTRACTS ARE LEASES. 257 demise will be construed as a lease, if such is the intention of tlie parties, though the instrument contains a clause for the prepara- tion of a future lease.^® An agreement for a lease containing a stipulation which provides for an execution of a formal lease, and that in the meantime until such lease shall be executed, the tenant is to pay rent and to hold the premises subject to the covenants which are to be inserted in the lease when it is exe- cuted, is a lease and not merely an agreement to make one.'^^ § 183. No presumption of tenancy from possession alone. The mere fact that one man is in possession of land owned by another though a circumstance to be considered in determining whether the relation of landlord and tenant exists between them, though it contained a stipulation for the execution of a lease in the future, see Pearce v. Cheslyn, 5 N. & M. 652, 4 A. & E. 225, 1 H. & W. 768, 5 L. J. K. B. 113; Doe d. Pearson v. Ries, 8 Bing. 178, 1 M. & Scott, 259, 1 L. J. C. P. 73; Chap- man V. Bluck, 4 Bing. (N. C.) 187, 5 Scott, 513, 1 Arn. 15, 7 L. J. C. P. 100, 2 Jur. 206; Doe d. Phillips v. Benjamin, 9 A. & E. 644, 1 P. & D. 440, 2 W. W. & H. 96, 8 L. J. Q. B. 117; Curling v. Mills, 7 Scott (N. R.) 709, 6 Man. & G. 173, 12 L. J. C. P. 316; Tarte v. Darby, 15 M. 6 W. 601, 15 L. J. Ex. 326; Wilson V. Chisholm, 4 Car. & P. 474. 50 Poole V. Bentley, 12 East, 168, 2 Camp. 286; Warman v. Faithful, 3 N. & M. 137, 5 B. & Ad. 10l2, 3 L. J. K. B. 114; Doe d. Jackson V. Ashburner, 5 Term Rep. 163. 57 Pinero v. Judson, 6 Bing. 206, 3 M. & P. 497, 8 L. J. (O. S.) C. P. 19, 31 R. R. 388; Hancock v. Caf- fyn, 1 M. & Scott, 521, 8 Bing. 358, 1 L. J. C. P. 104; Doe d. Walker V. Groves, 15 East, 244. "There may be many things about which the parties may enter in such a case into a written agreement, 17 without its being a demise, tak- ing it for granted that a demise already exists, or will exist. For example, the one party may agree to lay out money on the premises in consideration that the other will agree that he shall thereafter become tenant. This paper clearly refers to some parol agreement be- tween the parties, containing some other stipulation. Where the par- ties signed an agreement contain- ing all the particulars of a demise, it may no doubt be considered as imparting a present interest, though it contains words of agree- ment on the part of one of them only. But that is where it con- tains all the terms of the demise, v.-hich is not the case here. There is no statement of the commence- ment or duration of the tenancy, no stipulation that the party shall occupy for a year or a longer pe- riod, and nothing more than a legal inference that if he occu- pies for a year he must pay rent at the rate therein mentioned." By Lord Abinger, C. B., in Gore v. Lloyd. 13 L. J. Ex. 366, 12 Wm. & W. 463. 258 LAW OF LANDLORD AND TENANT. by no means raises any presumption of a tenancy existing in tlie absence of proof of a letting and hiring express or implied.^^ If the occupant is in possession without the consent of the true owner he is merely a trespasser from whom no rent can be col- lected and against whom the only remedy is an action of eject- ment or trespass as the circumstances of the case may indicate. Even the fact that the occupant is in possession with the consent of the owner does not, taken in connection with the possession, conclusively show that the relationship of landlord and tenant exists. It must also be shown that the occupant holds possession^ not only with the consent of the owner but under and in sub- ordination to the title of the latter. In other words, the true test of the relationship of landlord and tenant is to ascertain, first whether the person claiming or who is claimed to be a ten- ant holds possession with the assent of the owner, and second, if such be the case, whether he holds in subordination to the title of the owner.^^ § 184. The length of the term in an agreement to make a lease. The parties to an agreement to make a lease in futuro must be particularly careful to see to it that the agi^eement either expressly states the length of the term which is to be created by the lease or that it states some fact or circumstance from which the length of the term may be ascertained. The agreement must c8 Bailey v. Campbell, 82 Ala. Supp. 657, 26 Misc. Rep. 843; Har- 342; Hardin v. Bailey, 79 Ala. ris v. Frink, 2 Lans. (N. Y.) 35. 381; Carger v. Fee, 140 111. 582, 39 sg Littleton v. Wynn, 31 Ga. 583; N. E. Rep. 93; Cummings v. Turner v. Davis, 48 Conn. 397; Smith, 114 111. App. 35; Pitts- Loring v. Taylor, 50 Mo. App. 81; burgh, C. & St. L. v. Thornburgh, Chambers v. Ross, 25 N. J. Law, 98 Ind. 201; Hall v. .Jacobs, 7 Bush 293; Twiss v. Boehmer, 39 Oreg. (Ky.) 505; Jordan v. Mead, 19 La. 359, 65 Pac. Rep. 18; Victory v. Ann. 101; Paige v. Scott's Heirs, Stroud, 15 Tex. 573; Heddleston 12 La. 490; Fisk v. Moore, 11 Rob. v. Stoner, 128 Iowa, 525, 105 N. (La.) 279; Curtis v. Treat, 21 Me. W. Rep. 56; Page v. McGlinch, 63 525; Leonard v. Kingman, 136 Me. 472, 476; Lockwood v. Thun- Mass. 123; Edmonson v. Kite, 43 der Bay River Boom Co., 42 Mich. Mo. 176; Williams v. Berier, 31 536; Hogsett v. Ellis, 17 Mich. Mo. 13; Dixon v. Ahearn, 19 Nev. 351; Steen v. Scheel, 46 Neb. 252, 422, 24 Pac. Rep. 337; Crosby v. 64 N. W. Rep. 957; Skinner v. Home & Danz Co., 45 Minn. 249, Skinner, 38 Neb. 756, 57 N. W. 47 N. W. Rep. 717; Stewart v. Rep. 534; Parley v. McKeegan, 48 Finch, 31 N. .L Law, 17; Alt v. Neb. 237, 67 N. W. Rep. 16L Gray, 90 St. Rep. 657, 56 N. Y. WHAT CONTRACTS ARE LEASES. 259 state both the length of the temi and the date of its commence- ment, in order that it may be enforceable in equity. Generally the fact that a memorandum for a lease does not contain the date upon which the term is to commence, will prevent it from being in compliance with the statute of frauds.^" Such an agreement to make a lease cannot be specifically performed.®^ It has been held sufficient in one case if the date can be supplied by parol evidence. Though the agreement for a lease may not state the date, it will be sufficient under the statute, and for specific per- formance if it refers to a circumstance from which the date naay be implied.^- There is no inference that the term is to commence from the date of the agreement where it is not so expressly pro- vided. It is a presumption that parties who agree to make a lease intend one to be prepared which shall be dated on a subse- quent day and possession is usually not surrendered to the ten- ant until such a lease is executed by both parties. There is no presumption therefore that the date of the agreement to make a lease is to be the date of the lease unless indeed the writing which is called an agreement to make a lease, is a lease itself. Under such circumstances, the contract for a lease being deficient in certainty, will not be specifically enforced.®^ An agreement which provides that a tenant is to bje given possession within one month from its date sufficiently states the commencement of the term, and the lease is to commence when possession is given. Such a contract is sufficiently definite to warrant specific per- formance.*** But an agreement containing proposed terms for a future lease with an acceptance by the lessee on condition the premises are in repair, is not a lease because the time is not fixed 60 Clarke v. Fuller, 16 C. B. (N. fis Marshall v. Berridge, 51 L. J. S.) 24, 12 W. R. 671; Marshall v. Ch. 329, 19 Ch. D. 233, 45 L. T. Berridge, 51 L. J. Ch. 329, 19 Ch. 599, 30 W. R. 93, 46 J. B. 279; D. 233, 45 L. T. 599, 30 W. R. 93, Wyse v. Russell, 11 L. R. Jr. 113; 46 J. P. 279; Oxford Corporation Dolling v. Evans, 15 W. R. 394. V. Crow, 3 Ch. 535, 8 R. 279, 69 L. Compare Jacques v. Millar, 47 L. T. 228, 42 W. T. 200; Jaques v. J. Ch. 544, 6 Ch. D. 153, 37 L. T. Millar, 6 Ch. D. 153, overruled. 151, 25 W. R. 846, which was over- See, also. May v. Thomson, 20 Ch. ruled. D. 705. G4 Marshall v. Berridge, 19 Ch. 61 Blore V. Sulton, 3 Mer. 237, 17 D. '233, discussed and applied; R. R. 74. Lauder and Bagley's Contract, In 62Phelan v. Tedcastle, 15 L. R. re, 61 L. J, Ch. 707, 3 Ch. 41, 67 Ir. 169. L. T. 521. 2G0 LAW OF LANDLOKO AND TENANT. ■when the tenancy is to commence. So, too, the fact that though signed by the parties, the terms are only to go into effect upon the performance by the landlord of certain things which might or might not be done by him, prevents the instrument from be- coming or being regarded as a present lease.*^^ § 185, The term as stated in the lease. The term for which the premises may be occupied must be certain and fixed by the lease itself or there must be method indicated by the instrument by which the length of the term may be determined. The writ- ing must fix its commencement, and duration, or describe some certain event upon the happening of which it is to commence.^® Unquestionably a lease may be signed, the term of which may be made to begin on the occurrence of some event in the future.*^^ Thus a lease is not invalid because of the uncertainty of the term created therein where the day on which the term is to end is specified and the rental is to begin to be paid when a building not in existence but which the landlord agrees to erect on the property within a certain date is ready for occupancy.^* So, also, a written lease of a room in a building in process of erection for five years from the completion of the building is a valid lease for a term to begin in futuro. The certainty of the term is fixed by the completion of the building and the occu- pancy of the room and payment of rent by the lessee. The ab- sence of an express agreement by the lessor to complete the building does not render the term uncertain for such an agree- ment will be implied under the circumstances. The completion of the building is a condition precedent to the beginning of the term though the fact that in some respects the work was un- satisfactory to the lessee is not material on his liability whe/re he entered, occupied and paid rent."* So, not only must the begin- ning of the term be ascertained or be ascertainable by the lease but the end must not be uncertain. Thus, in a lease for a year which gave the lessee ''a privilege of longer," the latter phrase 6'- Doe fl. Wood V. Clarke, 7 Q. v. Ganster, 72 Pa. St. 285; Trull B. 211, 14 L. J. Q. B. 233, 9 Jur. v. Granger, 8 N. Y. 115, 118; Blear 426. V. Flues, 64 N. Y. 518, 520. 00 Colclough V. Carpeles, 89 Wis. es Colclough v. Carpeles, 89 Wis. 239, 245, 24C, 61 N. W. Rep. 836. 239, 61 N. W. Rep. 836. 07 See Wilcox v. Bostick, 57 S. «» Hammond v. Barton, 93 Wis. C. 151, 35 S. P:. Rep. 496; Bussman 183, 67 N. W. Rep. 412. WHAT CONTBACTS ARE LEASES. 2G1 was held to be so indefinite as to time that the tenant could not remain in possession longer than a year.'" § 186. Entry into possession as indicating a lease. In de- tennining whether a writing is a lease or merely an agreement for one, the entry into possession of the lessee with the consent of the lessor is a circumstance which tends to throw some light on the intention of the parties. The same principle is true where it is necessary to ascertain the intention of the parties to an oral agreement. But entry and possession are never relevant unless the intention is ambiguous or doubtful, for if it be clear from the language emploj^ed that the agreement was to make a lease in futuro, and net a lease in presenti, the delivery of possession is absolutely immaterial. In other words, proof of delivery of possession is not received to alter, vary or modify the intention as shown by the language of the parties, whether oral or written, but solely to show what the intention is.'^^ The entry of a per- son in the capacity of a tenant on premises, who has by parol agreed with the owner to execute a written lease is a tenancy at wUl. Where the lease was to be for a year, an entry under an agreement will be a lease for one year though the yearly lease was never executed.'- 70 Howard v. Tomicich, 81 Miss. 125, 7 Pac. Rep. 444; Jenkins v. 703, 33 So. Rep. 493. A mistake Eldridge, 13 Fed. Cases, 7268, 3 as to the termination of the term Story, 325; Goldberg v. Wood, 90 of a lease, caused by writing the N. Y. Supp. 427, 428, 45 Misc. Rep. figure "8" instead of the word 327. "eighty" before the word "eight" ~- Bonaparte v. Thayer, 95 Md. in the date 1888 will not defeat a 548, 52 Atl. Rep. 496. The action recovery on the lease. Nyquist v. of the landlord in permitting one Martin, 35 111. App. 623. An agree- who expects to be his tenant to ment to make a lease "for one or go on the premises to repair while more years" is sufficiently certain negotiations are under way for the as to the length of the term to en- execution of a long lease does not able the tenant to procure its establish an oral lease for a short specific performance, as it has term. It is very evident that this been construed that the term "one was done simply for the accommo- or more years" means at least two dation of the prospective tenant, years and perhaps more in the op- Herbert v. Gallatin, 163 N. Y. 575, tion of the tenant. Boston Cloth- 57 N. E. Rep. 1112, affirming 22 Ing Co. V. Solberg (Wash. 1902), App. Div. 623, 47 N. Y. Supp. 778, 68 Pac. Rep. 715. 779. A finding that there had been Ti Potter V. Mercer, 53 Cal. 667, a contract to lease the premises 672; Cheney v. Newberry, 67 Cal. for one year is not justified where 262 LAW OF LANDLORD AND TENANT. § 187. The presumption of an existing tenancy from the pay- ment of money by the occupant to the owner. The circum- stance that a person in the actual possession and occupation of land pays money to the owner is relevant to show the relations of the parties and, while taken alone it may have no significance^ yet in connection with other circumstances it may raise a con- clusive presumption that the relationship of landlord and tenant existed between the payor and the payee. If upon all the cir- cumstances, it is apparent that the owner received or claimed to receive the payments as a lessor of the premises and that the oc- cupant either assented thereto by words or conduct, or remained silent in reference to the character in which the lessor received the money, then it will be conclusively presumed that the rela- tion of landlord and tenant existed between the parties. The presumption of the existence of the relation of landlord and ten- ant arises from the payment of money as rent and if it is proved that the money was paid as rent then it is conclusively presumed that the relationship out of which the payment of rent alone grows, exists."^ This presumption has been applied in the case of a tenant holding over. In fact this is a very' frequent application for the whole doctrine of tenancy by holding over is based upon the payment of rent. The payment of rent creates a presump- tion of a tenancy, the term of which depends upon the time in- tervening between the rental payments. Usually the presump- the defendant after receiving a Fernandez, 1 Rob. (La.) 260; En- proposition from the plaintiff as rich v. Stock Yard Co., 86 Md. to leasing a coal yard for a year, 482, 38 Atl. Rep. 843; Squire v. occupied the premises for a short Ferd. Heim Brewing Co., 90 Mo. time without signing a written App. 462; Hill v. Boutell, 3 N. H. lease or coming to any definite 502 (a promise to pay rent); agreement. Gramm v. Sterling, 8 Decker v. Hartshorne, 65 N. J. Wyo. 527, 59 Pac. Rep. 156. Law, 87, 89, 48 Atl. Rep. 1117; 73 Kelly V. Eyster, 102 Ala. 325, Simmons v. Pope, 84 N. Y. Supp. 14 So. Rep. 657; Rainey v. Capps, 973, 974; Weinhaner v. Eastern 22 Ala. 288; Barrett v. Jefferson, Brewing Co., 85 N. Y. Supp. 354; 5 Houst. (Del.) 567; Flagg v. Gelt- Van Rensselaer v. Secor, 32 Barb, macher, 98 111. 293; Voight v. (N. Y.) 469, 473; Weaver v. South- Resor, 80 111. 331, 332; Cressler v. ern Oregon Co., 31 Oreg. 14, 48 Williams, 80 Ind. 366, 368; Duffy Pac. Rep. 167; Virginia Mining V. Carman, 3 Ind. App. 207, 210, and Improvement Co. v. Hoover, 29 N. E. Rep. 454; Andrews v. Er- 82 Va. 449, 4 S. E. Rep. 680; win, 25 Ky. Law Rep. 1791, 78 S. Rraythwayte v. Hitchcock, 10 Mee. W. Rep. 902, 903; Brandagee v. & Wei. 494. WHAT CONTRACTS ARE LEASES. 263 tion is invoked in favor of the landlord against the tenant but it is of equal service in favor of the tenant, that is, though a term is created solely by payment of rent, the tenant is still en- titled to notice to quit, and cannot be ousted except by the proper statutorj^ proceedings. The fact, also, that one who himself pays rent to the owner of the premises receives money for the use of the premises from other persons who occupy them and gives re- ceipts in his own name to such persons may also be considered to show he is a tenant. This presumption is rebuttable only by showing that the money paid was not paid as rent but with some other intention in the minds of both payor and payee.''* § 188. The necessity for the payment of rent. While, on the one hand, the existence of the relation of landlord and tenant may generally be implied from an agreement to pay rent for land ; on the other hand, it is by no means an absolute rule that there must always be an express promise or a contract to pay and to receive rent in order to create the relationship of landlord and tenant. Indeed, there may be a tenancy where it is abso- lutely proved that there was no express agreement to pay rent and where the only basis for the claim for rent on the part of the landlord is the implied promise of the tenant to pay for the use and occupation of the land. Thus, a tenant holding over by con- sent or at the sufferance of the landlord is still a tenant ; and the person of whom such possession is held continues to be the land- lord, though it is understood between the parties that the per- son holding over is to pay no rent. The landlord may pursue all his ordinary remedies against the person holding over as his tenant and he need not show that that person has agreed to pay rent.'^^ So, while mere possession alone given without any ex- press agreement to pay rent, may not under some circumstances create the relationship of landlord and tenant, still if from the language of the agreement it is clear that the parties intended by 74 The owner of the equitable gain time in which the equitable title of the premises by once pay- owner might bring a suit to estab- ing rent to the holder of the legal lish her equitable title. Hudson v. title does not thereby necessarily White, 17 R. I. 519, 23 Atl. Rep. recognize him as her landlord, 57, 63. where from the evidence it is "5 McKissack v. Bullington, 37 clearly apparent such payment Miss. 535, 538; Hunt v. Comstock, was made simply to prevent being 15 Wend. (N. Y.) 665, 666. evicted from the premises, and to 264 LAW OF LANDLORD AND TENANT. the occupation to stand in the relationship of landlord and ten- ant to each other, the fact that the occupant by an express agree- ment is to occupy the land rent free will not alone be sufficient to destroy the tenancy.^® The owner of land may, as against the occupant who holds without his consent, create a tenancy by notifying the occupant that if he continue to occupy the land he will have to pay rent. Thus, one who continues to occupy prem- ises after he has been notified that he will be required to pay rent if he remains in possession becomes liable as a tenant for the rent though he may not have paid rent before the notification. The notification of the landlord and the action of the occupant create a lease the terms of which as to its duration and rental periods will depend upon the agreement of; the parties to be in- ferred from the language of the notification,, and the action of the tenant. This rule applies to occupants who are trespassers or tenants at will or sufferance but not to those who occupy premises under a claim which is adverse and hostile to the owner. '^^ § 189. The performance of a contract to execute and deliver a lease. A formal lease properly executed and tendered by the lessor in the performance of his contract to execute a lease must in its terms and its covenants substantially conform to the in- tention of the parties as expressed in the agreement to make a lease. The lease ought to include all the premises which are mentioned in the agreement and the term and the rental pay- ment must be the same in both writings or tlie lessee may reject the lease which he must do within a reasonable time after its tender. If from the evidence it appears either that the lessee entered into possession or paid rent under the lease which was delivered him by the lessor, he will be presumed to have waived the objection that the lease did not cpnform to the agreement Proof that the lessee was unwilling t(F accept a lease from the lessor in any form is a waiver of a tender of a proper lease by the lessor.''* The lessee usually need not demand the delivery of a v6 Mitchell v. Commonwealth, 37 257, 261, 28 N. E. Rep. 226, 26 Am. Pa. St. 387, 192. St. Rep. 244, 12 L. R. A. 561, hold- 77 Biglow V. Biglow, 77 N. Y. ing also that the sending of a let- Supp. 716; Hill v. Coal Valley ter In regard to the contract to Min. Co., lO:} 111. App. 46. the lessees by the lessor and sub- 78 Freeland v. Ritz, 154 Mass. sequently sending the lease to WHAT CONTRACTS AEB LEASES. 265 proper lease as a condition precedent to bringing his action though it may be safer for him to do so.'^® On the other hand, a lessor cannot sue on an agreement to take a lease "at a fair rent" until he has tendered to the lessee a lease on such, terms unless the lessee by words or action has waived the tender.*" § 190. The specific performance of an agreement to make a lease. An agreement in writing to make a lease which com- plies with the requirements of the statute of frauds will be specifically enforced in a court of equity at the suit of either party to it.*'^ The general requirements which are applicable to a suit for the specific performance of a contract in ordinary cases must be complied with. The agreement must contract words from which the court may ascertain the term and the date of its commencement. The premises must be described with a reason- able degree of certainty so that their location may be ascer- tained by the lessee. There must also be a valid consideration and the agreement, the enforcement of which is desired, must be signed by the party who is to be compelled to execute it.*^ Where a memorandum of an agreement for a lease was signed by the lessee, but not by the lessor, and the name of the latter did not appear in it^ a subsequent letter signed by the lessor and refer- ring to the memorandum will take the case out of the statute.** An agreement hy the lessor to make improvements made at the date of making an agreement for a lease or upon the renewal of a lease is not within the statute of frauds. An agreement by a landlord with a tenant who has land for a term of years, that he will, for a good consideration stated as part of the increased rent, make certain improvements on the land, is valid though not signed by the parties. It is not a contract for any interest in or concerning lands within the statute of frauds.** A landlord or a tenant who seeks the specific performance of an agreement to them for their signature shows 82 Grand Trunk "W. Ry. Co. v. that the lessors substantially per- Chicago & E. I. R. Co. (C. C. A.), formed the contract to execute the 141 Fed. Rep. 785. lease. '^ Warner v. Willington, 3 79 Manning v. "West, 6 Cush. Drew, 523, 25 L. J. Ch. 662, 2 Jur. (Mass.) 463. (N. S.) 433, 4 W. R. 531. 80 Weaver v. Wood, 9 Pa. St. «4Donellan v. Read, 3 B. & Ad. 220. 89^. 81 Lenderking r. Rosenthal, 63 Md. 28, 33. 266 LAW OP LANDLORD AND TENANT. make a lease must show that he has performed all conditions precedent on his part.^^ A landlord who has agreed to put the property in good repair before the tenant shall execute the lease must satisfy the court that he has done so. A slight variance be- tween the quantity or character of the land as described in the agreement and that set out in the lease may be disregarded. A court of equity will decree the specific performance of a contract for a lease of land where the only defense is that the quantity of land described in the lease is slightly less than that contracted for if the court is satisfied that the defendant would thus receive substantially that which he agreed to lease,^® Where the tenant makes an offer to rent a farm at a specified sum per annum, and the landlord accepts the otfer and it subsequently appears that the landlord will be unable to deliver possession of the number of acres which the tenant expects to receive, a decree of specific performance will be granted on the suit of the tenant with appropriate abatement of the rent for the actual number of acres delivered. A parol agreement to accept a lease will be specifically enforced in equity where the tenant has entered in pursuance of the parol agreement. The execution of a lease by a lessee will be compelled in equity, where he had agreed to exe- cute one, and the lessor, relying on his promise, broke off ne- gotiations for renting the premises to others, and made material alterations, in order to adapt the premises to the lessee's use. The lessee is estopped under such circumstances, where he had entered into and held possession for nearly half the term, paying the rent agreed upon, but refusing to execute a lease. He cannot abandon the premises and escape liability for the rent upon the plea that no lease had been executed by him.'^^ And as a general rule, where no lease was executed and acknowledged as required by statute, but only a contract for one, still if possession is given under such contract and thereby improvements made by the les- see upon the faith of it, equity will consider the situation of the parties to be the same as if the leaseihad been executed and so long as possession is retained the rights of the landlord and tenant are «!■. Counter v. Maciilicrson, 5 87 McKenzie v. Hesketh, 47 L. J. Moore, P. C. 83. Ch. 231, 7 Ch. D. 675, 38 L. T. 171, 80 Bowler v. Electric Light Co., 26 W. R. 189. 10 Dec. Rep. 582, 22 Bull. 130. ss Seaniiui v. Ascheniiaim, 51 AVis. 078. WHAT CONTRACTS ARE LEASES. 267 to be governed by the terms of the proposed lease. ^^ If it ap- pears on a trial of an action for the specific performance of a contract to make a lease, that the execution of the lease if di- rected by the court will not benefit the tenant, the court may in its discretion award him damages. This is illustrated where a suit for performance is begun when the terai of the proposed lease is nearly expired. Under such circumstances, or where for any other reason the lease would have but a short time to run, the court will not decree a specific performance.®" § 191. The measure of damages for a breach of an agreement to make, a lease. A mere agreement for a lease as it creates no interest in the land, gives the tenant no remedy against a third person who wrongfully holds possession, but the landlord is liable in damages for the period the tenant is kept out of possession.''^ In an action by a tenant against the landlord for damages for a breach of an agreeanent to lease, the measure of damages, where there is no fraud or bad faith on the part of the lessor, is the amount paid, or expenses incurred by the lessee in relying on this contract, and if there be no expense or money paid by him, he can recover only nominal damages.®- Tlie measure of damages in an action by the landlord against the tenant for damages caused by the breach by the tenant of an agreement to take a lease is the loss of rent while the premises remain unoccupied at the rate proposed in the agreement; and the expense of any repairs or improvements made by the landlord on the premises at the ten- ant's request and which would not have been necessary to make unless the landlord had expected the tenant to go into possession. In the case of the broach of an agreement to make 'a lease, the amount of the proposed rent is not the measure of damages where the lease was void under the statute of frauds. The proposed rent is not the measure of damage as under such circumstances the landlord would not receive any rent under the lease, nor can h.e recover damages for the loss of a bargain as he has lost noth- ing by a failure to make the lease which, if made, he could not «9 Pugh. Printing Co. v. Dexter, oo Cincinnati Southern Ry. Co. 8 Ohio Dec. 557, 5 N. P. 332; Pugh v. Hoolver, 26 Ohio Cir. Ct. R. 392. Printing Co. v. Dexter, 61 Ohio St. 9i Becker v. De Forest, 1 Swee- 666; Hannan v. Towers, 3 H. & J. ney (N. Y.) 528. (Md.) 147. 'J- Wolf V. Studebalier, 65 Pa. St. 459. 268 LAW OP LANDLORD AND TENANT. enforce. He may perhaps recover damages, if, by the making of the agreement for an invalid lease, he was prevented from leasing the premises to some other person or was put to an ex- pense induced by his agreement in altering them or putting material or work upon them which was not necessary for their improvement or repair.^^ § 192. Letters constituting an agreement to make a lease. A series of letters passing between the parties may constitute an agreement to make a lease which may be sufficient under the stat- ute of frauds. The letters which constitute the correspondence will be construed together, and, if from all of them taken to- gether it is apparent that the minds of the parties met in an agreement to make a future lease and if the terms including the length of the term and the date from which the term is to commence, can be clearly ascertained from an inspection of the letters the contract will be specifically enforced. Particularly must the commencement and length of the term appear or be ascertainable from a construction of the letters as a whole. It is immaterial in what letter the commencement of the term is stated. It need not be stated in the letter which contains the ac- ceptance of the offer to make the lease. Wliile it is true that an agreement to make a lease may consist of letters, and while it is equally true that, though the commencement of the term may not be contained in a letter of acceptance, it may be supplied from a later letter yet if the later letter is in substance, a re- jection of the offer or an acceptance of the offer upon conditions which the party making the offer is not willing to grant, the fact that his letter supplied the date for the commencement of the term, is not material. For where letters are relied upon to con- stitute a contract of leasing^ they must be accepted in their en- tirety, and the party offering them is not at liberty to use as much of them as may favor his case, and reject that which is unfavor- able."* Letters passing between the parties in reference to the assignment of a lease do not constitute a contract in writing which will be enforced specifically where it is clear from an in- spection of the letters that the parties meant to make and exe- cute a formal contract at some future date.°° 03 Sausser v. Stoinmetz, 88 Pa. affirming 41 L. J. Ch. 551, L. R. St 324, 327. 7 Ch. 406, 26 L. T. 568. 0* Nesham v. Selby, 41 L. J. Ch. ■■>■> May v. Thomson, 51 L. .J. Ch. 173, L. R. 13 Eq. 191, 26 L. T. 145, 917, 20 Ch. D. 705, 47 L. T. 295. WHAT CX)NTRACTS ABE LEASES. 269 5 193. A lease distinguished from a license. A license may be defined as an authority to do some act or a series of acts on the land of another person without acquiring an interest or ^- tate in the land itself. Whether a contract is a lease or a license will be determined not from what the parties may chose to call it nor from the language used but from the legal effect of its provisions.^* Usually as a license is a permission to do some personal act it is presumed to be founded upon the personal confidence which the owner has in the person licensed. Hence, "I think the decisions of our courts have gone far enough as to letters; that is, in the spelling out of a contract from letters, when both parties intended a formal contract to be executed. I think it very often happens that both parties use expressions in letters which, read alone, would amount to a contract if we did not laiow that in fact neither of the parties intended those general expressions to constitute a contract. In that case if the court lays hold of the language of the letters to make a contract, it makes a contract for the parties which the parties never intended to enter into. If for instance both parties intended that a lease should be taken from a day to be named, and the one simply said that he would take a lease, and the other said he would grant a lease, without fixing a day, you would be making a new bargain for the parties. If you turn the granting of a lease into an assignment the same intention may be present. It may be an as- signment of a lease and the good- will of a business. Both parties may understand that they are to have a day fixed for the payment of the purchase price and the car- rying out of the assignment and that there is to be no final bar- gain without it, yet, if they do not state it, the court, it is said, fixes upon the terms and makes them a bargain for a reasonable time to be fixed upon by a jury who may be perhaps not very con- versant with the matter. We must always be on our guard against that." May v. Thomson, 51 L. J. Ch. 917, 20 Ch. D. 705, 47 L. T. 295. A lease for a term of years is not created by a letter which promises the party to whom it is written a lease for "five years or maybe longer" of the writer's farm i? the addressee would move onto it. Cunningham v. Rinsh, 157 Mo. 336, 57 S. W. Rep. 7G9. The own- ers of a house and shop, in Sep- tember, 1890, wrote a letter to the person who was then in occupa- tion, in the following terms: "We hereby agree to let you keep peace- able possession of your present house and shop in Strand Lane for a term of 10 years, on condi- tion that you commit no nuisance, and pay us the sum of 9s. 3d. per week for rent thereof. You to pay local board rates, and we to pay poor rates and water rates as hitherto." Held, that there was a demise of the premises for a term of ten years. Duxbury t Sandiford, 80 Law T. (N. S.) 552. 96 Holladay v. Chicago Arc. L. & P. Co., 55 111. App. Div. 463, 466. 270 LAW OF LANDLORD AJSTD TENANT. a license is not usually assignable. Thus, for example, the per- mission given by a land owner to another person to hunt or fish upon his land is merely a license and confers no interest in the land itself nor will it permit the person to whom the license is given to delegate his powers under it to another. The li- cense may be revoked at any time before the licensee has entered upon the land. A land owner may forbid a licensee to go upon the land and if the latter disobey the owner he is then a tres- passer. Another fact which distinguishes a lease from a license is that by a license no interest in the land is conveyed while by a lease the tenant is entitled to the exclusive possession and enjoyment of the land from the time of his entry. If the contract gives the exclusive occupation, possession and enjoy- ment for all purposes to the occupant, the presumption is that the instrument is a lease. This presumption is strengthened by the fact that the owner removes from the land and sur- renders possession where he occupied it prior to the contract and by the further fact that the owner refrains from as- serting possession or the right to possession during the life of the contract. A contract by which the use, occupation and pos- session of lands for all purposes not expressly forbidden therein is conveyed, is a lease and not a license,^^ A contract signed by the owner which does not confer the right to full and exclusive possession upon the other party but which simply gives him a right to enter and to hold possession of land for a particular purpose, as for example, to cut timber or the like, is presumed to be a license. An agreement by which the owner of a building o" Crane v. Patton, 57 Ark. 340, its terms the lessee had a right to 346, 21 S. W. Rep. 466; Smith v. remove a proportionate lot of tim- Simons, 1 Root, 318, 1 Am. Dec. ber and if the lessor deprived him 48; Haywood v. Fulmer (Ind. of this right he was liable in dam- 1892), 32 N. E. Rep. 574, 18 L. R. ages for what the timber would A 491; Carey v. Richards, 2 Ohio have been worth when removed, Dec. 630. In Crane v. Patten, 57 less the expense of removing it. Ark. 340, 346, the paper was held Nor was it necessary that this act to be a lease and not a license be- should have been enforced by cause the rights of the lessee were force or violence. If the landlord vested and were not determinable prevented the enjoyment of this at the will of the lessor. The sale privilege by inducing the servants of the property during the term of the lessee to leave his employ- would not extinguish the lease if ment, he would be liable for dam- the purchaser had notice of it. By ages. WHAT CONTEACTS ARE LEASES. 271 for a consideration, permits a corporation to run electric wires along the walls thereof "* which creates a right of way °^ is a license. So, an arrangement between a father and his daughter by which she is to select such land as she desires and he is to de- vise the same to her on his death, the daughter at once to enter into the possession and control of the same subject to the right of the father to collect certain rents, is a mere license. The re- lation of landlord and tenant does not exist between them.^ The following examples illustrate the general rule and show cases in which upon the particular circumstances, the courts have held that an agreement was a license and not a lease. Thus, an agree- ment to give a person desk room in an office is usually a license. A person who hires desk room from the tenant of an office or other portion of a building is not himself a tenant. He has merely the right to use a chair and a desk in the office of his les- sor while the latter 's tenancy lasts. His right of use is at an end with the term of his lessor.^ An agreement under seal by which the owner of a farm permits another to live thereon for a term of years in consideration of the latter clearing a part of the same, and putting certain buildings thereon, the owner reserving the use of all the timber except such as may be necessaiy for the buildings, rails, and fire-wood of the occupant, is not a lease and does not create the relation of landlord and tenant. The occu- pant is in under a license only, and he has no right to the timber cut on the cleared land, except for the purpose of building, or for fences, or for fire-wood.^ An agreement by which the OAVTier 9s Holladay v. Chicago Arc L. & yond the seas, to hunt in a man's P. Co., 55 111. App. 463. park, to come into his house, are 89 Thomas v. McGuire, 1 Ky. only actions which, without li- Law Rep. 65. cense, had been unlawful. But 1 Berry v. Potter, 62 N. J. Eq. a license to hunt in a man's park, 664, 29 Atl. Rep. 323. and carry away the deer killed to 2 Swart V. Western Union Tele- his own use, to cut down a tree graph Co., 12 Detroit Leg. N. 609, in a man's ground, and to carry 105 N. W. Rep. 74. it away the next day after to his 3 Callen v. Hilty, 14 Pa. St. 286. own use, are licenses as to the act "A dispensation or license prop- of hunting and cutting down the erly passeth no interest, nor alters tree, but as to the carrying away nor transfers property in any- of the deer killed and the tree cut thing, but only makes an action down, they are grants. So, to li- lawful, which without it had been cense a man to eat my meat, or unlawful. As a license to go be- to fire the wood in my chimney, to 272 LAW OF LANDLORD AND TENANT. of certain machines pays for permission to place the machines in a factory, and for full access to the same for himself and em- ployees, for the purpose of working them, the owner of the fac- tory supplying the steam power^ is not a lease nor does the re- lation of landlord and tenant exist between the parties.* But where the owner of premises lets a certain tenant the portion of a room with steam power for the working of machines at a cer- tain rate for the use of the premises and the power, it is a lease and the owner of the premises may distrain.^ An agreement by which a person was vested with the right to use certain moorings on a navigable river^ for the purpose of mooring a barge under an agreement with the officials having charge of the preservation of the river, that he would pay certain sums of money, the agree- ment to be terminated on thirty days' notice, is a license and not a lease.* An agreement between a landowner and a corporation by which the former agrees to prepare his land at his own ex- pense so that it may be used for an athletic ground by the corpo- ration with the provision that the owner is to be compensated for his improvements out of the income is not a lease. The corpora- tion which uses the ground after it has been improved by the owner is responsible for any damages which the owner may be subjected to in being deprived of the use of his property. Inas- much as the relation of landlord and tenant does not exist, the owner cannot recover for the rental value of his improvement, but the corporation will be liable for the reasonable value of the use of the ground upon the presumption that if it had not been used, the owner might have let it for other purposes.'^ An agree- ment by which the lessee of a theatre grants another person the exclusive use of all refreshment bars, smoking rooms and wine warm him by, as to the act of (N. S.) 634, 32 L. J. C. P. 252, 8 eating, firing my wood, and warm- 1j. T. 429, 11 W. R. 833. ing him, they are licenses; but it ^ Selby v. Greaves, 37 L. J. C. P. is consequently necessary to these 251, L. R. 3 C. P. 594, 19 L. T. actions that my property may be 186, 16 W. R. 1127. destroyed, the meat eaten, and the « Watkins v. Milton, next Grave- wood burnt. So, as in some cases, send Overseers, 37 L. J. M. C. 73, by consequent and not directly, L. R. 3 Q. B. 350, 18 L. T. 601, 16 and as its effect a dispensation W. R. 1059. or license may destroy and alter " Dockstader v. Young Men's property." Thomas v. Sorrell, Christian Ass'n (Iowa, 1906), 109 Vaughan, 351. N. W. Rep. 906. * Harifock t. Austin, 14 C. B. WHAT CONTRACTS AKE LEASES. 273 cellars in the theatre together with the exclusive right of adver- tising in such place for a term of years for a fixed rent is a license. The fact that the agreement contains a stipulation that the lessee of the theatre might put it to an end on non-payment of rent and a covenant of quiet enjoyment does not change it into a lease.^ An agreement by which a land-owner in England granted shooting rights over his woods with a yearly rental is something more than a mere license and is not therefore revoc- able at will. If it be assumed that it is a tenancy, it is one from year to year though perhaps a shorter notice to quit would be re- quired at common law than in the case of a tenancy of farm land. The reason for requiring a six months' notice to quit which exists in the case of a lease of farm land, does not exist in the case of a lease of a right to shoot game over another man's land.^ § 194. Agreement permitting the cutting of timber. Whether the agreement by one who owns land that another may enter upon it and cut the timber and remove it therefrom is a lease or a contract of sale depends upon the intention of the parties. If the permission to cut timber confers the exclusive possession of the land on which the timber is, upon the person to whom it is granted, it is a lease. And an instrument in writ- ing which confers upon the party accepting the same the owner- ship of trees and timber on a tract of land may be a lease though no rent is reserved. The contract confers the title to the timber and trees and it is therefore a bill of sale. So far as the land is 8 Edwards v. Barrington, 85 or lodger has the exclusive enjoy- Law T. 650, 50 Wkly. Rep. 358. ment of the room, but the owner Lowe V. Adams, 70 L. J. Ch. or his servants have to keep it in 783; (1901) 2 Ch. 598, 85 L. T. 195, order and have a right of entry 50 W. R. 37. Other circumstances for that purpose. The actual oc- may arise which will render it cupation of the room is therefore important to determine whether a in the owner of the hotel or lodg- writing is a lease or a mere li- ing house and the agreement is a cense. A very familiar example license. If, however, the agree- of such a case or class of cases is ment gives the exclusive occu- that of the occupation of a fur- pancy of the room or lodgings to nished room in a boarding house the lodger and the landlord has or hotel, where the question may nothing to do with the premises arise whether the occupant is it is very evident that a lease was such under a lease or whether he intended, is a mere licensee. The occupant 18 274 LAW OF LANDLORD AND TENANT. concerned it is a lease because it gives the exclusive possession and occupation of the land to the purchaser of the personal property though only for the single purpose of cutting down ^° the timber. Hence, the vendee on his entry upon the land may take possession of the timber which was lying on the land when he entered having been cut down by a trespasser before his entry.^^ Assuming that the contract for the sale of standing tim- ber is a lease it follows that it must be certain as to the terra. If there is any uncertainty about the duration of the term, as where, for example, the writing does not state the commence- ment of the term it will be void.^- A writing which confers no exclusive possession of the land and merely gives the party a right to enter upon it and to remove timber will be regarded as a license. Thus, an agreement which gives the right of cutting and removing some timber in each year which is to be paid for in installments and which agreement is renewable when it ex- pires, is a mere sale of the timber with a license to go upon the land and cut it, though the parties call it a lease. Hence, it follows from this that the relation of landlord and tenant is not created and the owner of the land cannot recover any rent after all the timber has been removed from it.^^ These rules and prin- ciples which we have just stated are applicable with equal force to agreements between the owners of land and other persons who enter upon the land to quarry stone, dig for mineral or bore for oil. Agreements by which land owners permit other persons to enter upon their land and to work mines where they do not in- volve the exclusive possession of the land itself, are licenses and not leases.^* But an agreement by which a person who is to mine the coal in land is given the exclusive possession of the land for 10 Alexander v. Gardner (Ky. i^ Riddle v. Brown, 20 Ala. 412 1906), 96 S. W. Rep. ^18. Funk v. Haldeman, 53 Pa. St. 229 11 Glenwood Lumber Co. v. Phil- Caldwell v. Fulton, 31 Pa. St. 483 lips, 73 L. J. P. C. 62; (1904) A. Gillett v. Treganza, 6 Wis. 343 C. 405, 90 L. T. 741, 20 T. L. R. Grubb v. Bayard, 2 Wall. Jr. (U. 531. S.) 81; Dale v. Wood, 2 Barn. & 12 Gay Mfg. Co. v. Hobbs, 128 N. Ad. 724; Wheeler v. West, 71 Cal. C. 46, 38 S. E. Rep. 26. 126, 11 Pac. Rep. 871; Inhabitants 13 Crane v. Patton, 57 Ark. 340, of Town of Rockport v. Rockport 21 S. W. Rep. 466; Baird v. Mil- Granite Co., 58 N. E. 1017, 177 ford Land & Lumber Co., 89 Cal. Mass. 246, 51 L. R. A, 779. 552, 555, 26 Pac. Rep. 1084. WHAT CONTRACTS ARE LEASES. 275 a term of years is a lease. ^^ So, an instrument is a lease by which the owner of a stone quarry agrees with a person that the latter shall take out the stone and shall sell it, and the owner is to receive a portion of the proceeds.^® So, also, an instrument which expressly permits a licensee to have the exclusive rights to all gravel and sand for a particular year and excludes all other persons from the premises is a lease.^^ § 195. The possession of a tenant under a void lease. The entry of a person into possession with the owner's consent under a void lease constitutes the relationship of landlord and tenant between the occupant and the owner.^* A tenancy arises whose duration and general character will depend upon express con- tract if one is subsequently made; or upon implication created by the conduct of the parties. ^'^ In the absence of this, such holding is usually regarded as a tenancy at will.-" The payment of rent for a year at the end of the first year or for a month at the end of the first month of the occupation would be strong presumptive though not conclusive evidence of a lease from year to year or from month to month.-"^ Aside from all questions as to the length of the term under such an occupation, it is well settled that the owner may recover in an action of assumpsit from the occupant under the void lease the reasonable value of the use and occupation of the premises." And it has also been held that, where the occupant of land or a tenant is in posses- sion under a lease which is absolutely void, the lease cannot be resorted to or considered in evidence to determine the amount which shall be paid by the occupant for use and occupation.'^ 15 Consolidated Coal Co. of St. 20 See ch. — . Louis V. Peers, 150 111. 344, 37 N. 21 Vinz v. Beatty, 61 Wis. 645, E. Rep. 937; Caldwell v. Fulton, 649, 21 N. W. Rep. 7S7; Koplitz 31 Pa. St. 475; Harlan v. Coal Co., v. Gustanes, 48 Wis. 48; Laugh- 35 Pa. St. 287. ran v. Smith, 75 N. Y. 206; Huyser 16 Barry v. Smith, 23 N. Y. 129, v. Chase, 13 Mich. 98. 1 Misc. Rep. 240, 23 N. Y. S. 261, 22 Hays v. Garee, 4 Stew. & P. 69 Hun, 88, 53 N. Y. St. Rep. 57. (Ala.) 170. iTHazwood V. Fulmer (Md.), 32 23 Vinz v. Beatty, 61 Wis. 645, N. E. Rep. 574. 649, 21 S. W. Rep. 787. See, also, 18 Brubaker v. Poage, 1 T. B. Barry v. Ryan, 4 Gray (Mass.) Mon. (Ky.) 123. 523, 526, where the landlord suing 19 Howard v. .Tones, 123 Ala. 488, on a lease whose execution he 26 So. Rep. 129. failed to prove was precluded 270 LAW or LANDLORD AND TENANT. § 196, A lease with an agreement to sell the premises. An instrument may at the same time be a lease and also a contract to convey the premises and enforceable as such by the lessee. This would be the case where land is leased for a term which is specified with a covenant by the lessor that, if the lessee shall pay all the rent under the lease as it accrues, the lessor will at some future date convey the land to the lessee. The promise to convey is specifically enforceable as it is based on a good and valuable consideration, i. e., the payment of the rent by the les- see. Until the day an'ives when the lessee has the right to de- mand a conveyance, the instrument continues to be a lease, the relation between the parties is that of landlord and tenant and the former may oust the latter for the non-payment of rent as in the ordinary cases of landlord and tenant. But after alj the in- stalments of rent have be^n paid the instrument is no longer exec- utory^ but executed; and the parties are no longer landlord and tenant but are vendor and vendee, with a right in the vendee to procure a specific performance of the agreement to convey, in- cluding the deliver}^ of a deed in a court of equity as against the owner of the land.-^ For an option to purchase contained in a lease does not destroy the relationship of landlord and tenant created by it, until the option is executed. Thus, the fact that a lease contains an agreement by the landlord that he will sell the premises to the tenant for a price agreed on, and that he will accept in part payment, the money which may have been paid as rent, does not make the writing an agreement to sell. The relation of landlord and tenant exists under it, and, where the tenant never pays any rent, the landlord may maintain a proceeding in forcible detainer or other possessory action to oust him.^° Whether an instrument is a lease or an agreement to sell the premises is a question of construction upon all the language of the instrument. The use of the word grant in an instrument conveying an interest in land negatives an intent to create a lease and indicates that a sale was intended. The word is then synonymous with convey and these words may be used from recovoririK on an implied Rep. 126; Thomas t. Johnson contract to pay rent. See use and (Ark. 1906), 95 S. W. Rep. 468. occupation. 2.1 Colored Homestead & Build- '-'•• Davis V. Robert, 89 Ala. 402, ing Ass'n t. Harvey, 23 Ky. Law 404, 8 So. Rep. 114, 18 Am. St. Rep. 1009, 64 S. W. Rep. 676. WHAT CONTRACTS ABB LEASES. 277 interchangeably. ITenee a grant of a right of way is not a lease of the ground but a conveyance, sale or transfer of an incorpo-, real easement and where such a grant is made to a railroad over the land of the grant it will conclusively be presumed to con- stitute a perpetual privilege though provision is made for the payment of an annual rental for a term of years.-" So in con- elusion, the character of an agreement in writing by which the occupant of land is to pay a certain sum yearly for its use, is not altered by an agreement that if, within a certain time the amount paid by the tenant equals the principal and interest of a note given by him, he is to have title to the land.-^ § 197. Lease or mortgage. The question sometimes arises whether a writing by which the possession of premises is trans- ferred is a lease or a mortgage. In determining this question, the courts will, as in all cases of construction, seek to ascertain the true intention of the parties, and having ascertained this, will seek to put that intention in operation irrespective of the technical language of the instrument. In other words, in deter- mining whether an instrument was meant to operate as a lease or as a mortgage, courts, and particularly courts of equity in which this question most frequently arises owing to the juris- diction which is exercised in equity over mortgages and trusts will look to the substance and not to the mere form of the in- strument. All the circumstances of the case, including the situa- tion and relation of the parties and of the subject matter may be considered by the court,-^ for the distinction between a lease and a mortgage of real property is a very clear and important one and the effect and operation of these two instruments quite diverse. In the case of a lease there is carved out of the fee, a more or less lengthy term, but in no case all that the owner possessed or had power to convey, usually with a payment of rent and an estoppel upon the parties to deny the title of each other. In the case of a mortgage, the relation of debtor and 26 Des Moines Co., etc.. v. Tub- 27 Nobles v. McCarty, 61 Miss, bessing, 87 Iowa, 138, 140, 54 N. 456. W. Rep. 68, in which the court ss Packard v. Corporation for saj's "we are unable to find a Relief of Widows, etc., of Prot. single instance where the word Epis. Church in Maryland, 77 Md. grant is construed as lease." 240, 247, 26 Atl. Rep. 411; Mon- tague V. Sewell, 57 Md. 412. 278 LAW OF LANDLORD AND TENANT. creditor exists and the instrument is executed not like a lease for the purpose of transferring possession, but as security for a debt. The fee is granted absolutely in form, with possession retained in the grantor, and with a proviso that the grant shall be void if the debt shall be paid.-^ An agreement by which the owner transfers to another the possession of premises as collat- eral security for a debt with power to receive and use the rents and profits until a certain date, though in form a mortgage, is in effect a lease and creates the relation of landlord and tenant. It is not material that the instrument contains no operative words of grant or demise. The instrument transfers the possession and the owner divests himself of the possession and transfers it to another who being thereby his tenant, holds in subordination to the owner's title. The latter may collect the rents but must ac- count for them to the owner.^** An owner of land who raortgages it under an agreement that he shall remain on it and cultivate it, paying the mortgagee a certain sum each year, the surplus of which over the interest and taxes is to be applied to pay off the mortgage debt, is not a tenant of the mortgagee. It is not material that the payment is called rent.^^ An agreement by the owner of the premises that a mortgagee may occupy it until the mortgage is paid creates the relationship of landlord and tenant between the parties. The term expires by the payment of the mortgage at any time though it may not be due.^- A deed of premises with a defeazaiice endorsed thereon providing for a reconveyance to the grantor upon the latter paying a certain sum named therein as well as for the use of the farm, the grantor to have the use of the premises until the sum is paid, is a mort- gage and not a lease and the parties do not occupy the position 20 In some sections a ground has no cause for complaint so rent redeemable at a definite fu- long as the lessee shall pay the ture date is a common security rent. Packard v. Corporation, etc., for money loaned, the rent paid in Maryland, 77 Md. 240, 247, 26 being the interest which is due. Atl. Rep. 411. Nevertheless this is a lease, not -io Wells v. Sheerer, 78 Ala. 142, a mortgage, for though the lessee 145. purchases his estate with the priv- 'i Sadler v. Jefferson (Ala. ilege of his buying the fee at some 1906), 39 So. Rep. 380. fixed future date at a fixed price, ^- Hunt v. Comstock, 15 Wend. yet he is not compelled to do so (N. Y.) CC5. and if he does not do so, the lessor WHAT CONTRACTS ARE LEASES. 279 of landlord and tenant. Nor does the provision in the deed rela- tive to the grantor pacing the grantee for the use of the farm make the former a tenant of the latter, nor change the character of the instrument from a mortgage to a lease.^^ A clause in a lease of real property reserving to the lessor a lien for the rent on the goods and chattels of the lessee placed on the premises, to be enforced on the non-payment of rent, as in case of a chat- tel mortgage, by the taking possession and the sale of the prop- erty is, in its effect and nature, a chattel mortgage, in equity at least. Hence, for such an instriunent to constitute a valid lien binding on an innocent purchaser of the chattels, it must be recorded under the statute as a chattel mortgage.^* An instru- ment purporting to be an indenture which is in its form and language a lease, but which recites that the lessee has paid the rent for the term in full and that he "will reconvey upon the re- payment of said sum by the lessor, is a mortgage under the gen- eral rule that any instrument conveying an estate in land and stipulating that the same shall be re-conveyed on the pajTnent of money, is a mortgage. The relation between the parties to this instrument is therefore that of mortgagor and mortgagee. The mortgagee being in possession and receiving the rents and profits must, on redemption, account therefore as payment first to keep down the interest and then to credit upon the principal. If the money to be paid by the mortgagor is paid during the term, the condition is not broken and the mortgagor may regain his possession. If the money is not so paid the condition is broken in law and the mortgagor has then only an equity of re- demption and must bring an action to redeem his equity in order to obt-ain possession. As soon as the rents and profits received by the qua^i lessee equal the debt, the latter is at once regarded as paid and the mortgagor's right of entry- is complete. If the rents and profits exceed the debt, the balance in equity belongs 33 Graham v. Way, 38 Vt. 19; Woodin. 65 N. Y. 459, 22 Am. Rep. Halo V. Schick, 57 Pa. St. 319, 25 644; Reynolds v. Ellis, 34 Hun, 47; L. J, 332. Nestell v. Hewitt, 19 Abb. N. C. 34 Mitchell V. Badgett, 33 Ark. 282; Betsinger v. Schuyler, 46 387; Merrill v. Ressler, 37 Minn. Hun, 349; Greeley v. Winsor. 1 S. 82, 33 N. W. Rep. 117, 5 Am. St. D. 117, 45 N. W. Rep. 325, 39 Am. Rep. 822; Johnson v. Crofoot, 53 St. Rep. 349. Barb. (N. Y.) 574; McCaffrey v. 280 LxlW OF LANDLORD AKD TENANT. to the lessor who may recover the same from the lessee by an action in assumpsit for money had and received.^^ A creditor who occupies and retains possession of the lands of his debtor until from the rents and profits he shall have received a sum sufficient to pay his debt is, from the date of taking possession, the tenant of the debtor, he is liable to the debtor for the rent which accrues after the debt shall have been paid, and the debtor may, upon a failure to pay the rent, institute and maintain dis- possessory proceedings.^® § 198. The lease of space in a department store. In modern times it is quite common, in the large cities particularly, for a portion of a building to be sub-let and this rule finds frequent illustration in the sub-letting of floor space by the proprietor of a so-called "department store" to a merchant who wishes to carry on a particular line of business in connection with other departments in the same building. Whether such an agreement is a lease or a mere license is to be determined by the general rules elsewhere stated.^^ If the lessee is to have the exclusive possession and enjoyment of particular floor space to the exclu- sion of the lessor, the agreement is a lease and the rules of law which are applied to the relation of landlord and tenant, regulate the contract of the parties. As a general thing, the value of a lease of this character to the tenant lies not so much in the area of floor space which he occupies as in the opportunity af- forded him to dispose of his goods. Of course, this opportunity depends largely, if not wholly, upon the number of people who frequent the store and with whom he will be brought in contact by reason of his presence in the store. Hence, the representation oi the lessor as to the number and character of the customers who patronize his establishment, the amount he may have spent in advertising, the number of years he has been established in busi- ness, the amount of his sales and general facts relating to his past business standing are material. And if there are any mis- representations by the lessor in reference to these facts, the lease may be set aside ''* as having been procured by fraud and deceit. 88 Nugent V. Riley, 1 Met. as Ehrich v. Winter & Co., 103 (Mass.) 117, 121. 35 Am. Dec. 3.55. N. Y. Supp. 1023. 52 Misc. Rep. s« Wells V. Sherer, 78 Ala. 142. 641. 87 Sec. 193. WHAT CONTEACTS AEE LEASES. 281 § 199. A lease distinguished from a contract to furnish board and lodging. In many cases it becomes of importance to dis- tinguish between the status of a lodger and that of a tenant and to answer a question whether one who occupies premises with the consent of the owner is a lodger or a tenant of the owner. The lodger is defined by the cases to be one who has only a right to inhabit another man's house. He has no rights of a tenant and usually is not entitled to the same remedies. A lod-ger is a mere licensee whose right to occupy is revocable and who has no exclusive right to the occupation or possession of any part of the premises. Sometimes board is supplied with the lodging and a boarder is one who has food or diet, either with or without lodging, in another man's house, for compensation. Whether an occupant of premises is a lodger or a tenant depends on the circumstances of the case. For example, where a person con- tracts with the keeper of a hotel for rooms and board, whether for a week, for a year or for any other certain period, the rela- tion of landlord and tenant is not created between the parties. The lodger acquires no interest in the land and has no right to an exclusive possession. If he is turned out of the rooms before his time expires, he cannot maintain ejectment or trespass. And while he remains as a lodger the landlord cannot collect rent in arrears by distress.^* If the arrangement between the parties is a lease and not a mere contract to supply board aud lodging, the rights and remedies of the parties as against each other are very different. So, if the occupant is a tenant and not a mere lodger, the agreement between him and the landlord is a lease^ being a conveyance of an interest in land or concerning land, and where it is for a term of more than a year must usually be in writing under the statute of frauds. On the other hand, if the occupant of the premises is a mere boarder or lodger and not a tenant, then his contract is not a lease but merely an agreement to furnish board and lodging or lodging only according to the circumstances and it need not be in Avritinsr.'" Thus an agree- ment to pay a certain sum yearly for the board and lodging of two persons in a boarding house, which agreement is terminable on a quarter's notice by either party is not an agreement for an 39 Wilson V. Martin, 1 Den. (N. ^"1 White v. Maynard, 111 Mass. Y.) 602. 250. 282 LAW OF LANDLORD AND TENANT. interest in real estate and hence it is not within the statute.*^ Nor does it signify that such a contract is concerning an inter- est in land because it expressly points out and designates the particular apartment or room which the lodger is to occupy. The technical relation of landlord and tenant is not created be- tween the parties by a contract which obligates the owner or oc- cupant of premises to furnish rooms and board whether for a week, month, year or longer period and the lodger cannot main- tain ejectment if he is turned out of possession before his term is at an end nor can the hotel keeper distrain for rent in ar- rears.*- On the other hand, it has been held that an agreement to take a certain apartment or rooms in a house as lodgings at a yearly rent was within the statute of frauds.*^ And it is ob- vious that, if such be the intention of the parties clearly evidenced by their language or actions, an entire floor, an apartment, a series of rooms, or even one room may doubtless be let for lodg- ings so separated from the rest of the premises and so completely surrendered to the exclusive control and possession of the lodger as to become in law and fact his separate tenement and he will under such circumstances be a lessee.** A contract which in its terms purports to be a lease and which confers the right to an exclusive occupation upon the occupant of certain particular rooms specified, for a precise time and at a definite weekly rate, such rooms being so separated from all other rooms in the house as to become in fact and in law a separate tenement, is a lease and not a contract for board and lodging. The fact that, on leasing the rooms, the lessor also agrees to furnish food to the oc- cupant and to his family is not material.*^ The executors of the lessee who dies during the term, are bound for the full term, but the lessee's death diminishes the actual amount which may 41 Wright V. Stavert, 2 E. & E. been such that, if an entry had 721, 727. been made, it would have ■•s Wihson V. Martin, 1 Denio (N. amounted to an actual lease of Y.) 602. the rooms. <;' Inman v. Stamp, 1 Stark. 12; 4 1 white v. Maynard, 111 Mass. Edge V. Stafford, 1 Tyrwh. 293, 1 250, 254; Newman v. Anderton, 2 C. J. 391. There is, however, noth- B. P. N. R. 224; Fenn v. Grafton, ing in the reports of these cases 2 Bing. (N. C.) 617, 3 Scott, 56; to show that the premises were in Monks v. Dykes, 4 M. & W. 567; a lodging house, and the agree- Swain v. Mizner, S Gray (Mass.) ment in each case appears to have 182. WHAT CONTRACTS ARE LEASES. 283 be recovered thereunder to the extent of the actual cost of boarding her during the remainder of the term after her death.**' So, also, the fact that the lessor imposes certain restrictions upon the lessee as to the manner in which the rooms are to be occupied and used, does not alter the character of the contract, as it is still a lease.*^ § 200. Agreement to board and care for the owner of land. An agreement to board the owner of land under which the party who agrees to furnish the board, enters into possession of the whole or of a portion of the premises may or may not be a lease according to the circumstances. The presumption is against such a contract being a lease and this presumption is very materially strengthened by proof that the oAvner of the land continues in its possession and control after the entrj^ of the other party. Another material fact is that the occupation is not for a cash rent. Thus, an agTeement by which one enters upon the occu- pation of premises in part and while there, furnishes board to the owner, who continues to occupy the remainder of the prem- ises upon a promise by the owner that he will devise the property to the person who is boarding and caring for him, is not a lease. The relation of landlord and tenant does not exist between the parties and the party furnishing the board has his remedy upon « Oliver v. Moore, 53 Hun, 472, B. (N. S.) 33, 46. So, too, in those 6 N. Y. Supp. 413, affirmed in 131 English cases where the question N. Y. 589, 30 N. E. Rep. 65. has arisen under the English valu- 46 Oliver v. Moore, 53 Hun, 472, ation and tax acts whether an oc- 6 N. Y. Supp. 413, 25 N. Y. St. cupant of a house was a tenant or Rep. 37. See, also, S. C, 39 N. Y. a mere lodger it has been held St. Rep. 500, 35 N. Y". St. Rep. 131. that there must be an actual plac- 47 Porter v. Merrill, 124 Mass. ing of a person in the exclusive 534, 541. See T\Tiite v. Maynard, possession of a house or an apart- Ill Mass. 250. In Fludier v. ment in a house by the landlord Lombe. Cas. Temp. Hardw. 307, to make him a lessee and that Lord Hardwick said: "A lodger merely admitting one as an in- was never considered by any one mate, the landlord retaining the as an occupier of a house. It is legal possession and control of the not the common understanding of whole house, constitutes him a the word; neither the house, nor lodger only. Smith v. St. Michael, even any part of it, can be prop- 3 E. & E. 3S3; Stamper v. Over- erly said to be in the tenure or seers of Synderland, L. R. 3 C. P. occupation of the lodger." And 388; The Queen v. St. George's this definition was cited with ap- Union, L. R. 7 Q. B. 90. proval in Cook v. Humber, 11 C. 284 LAW OF LANDLORD AND TENANT. the contract which has been made to devise him the property.'*^ Under an agreement of this kind an owner cannot enforce the remedies which a landlord generally possesses. Thus, an agree- ment that one shall remain in a house, shall board the owner and keep the house in repair during the owner's pleasure is not a 1-ease; and the owner, not being a landlord, cannot maintain a summary proceedings under the statute to oust the other party as his tenant.*^ An agreement by a daughter binding herself to board her father several months in each year under which she takes possession of her father's farm and remains there is not a lease.*** But an agreement by which one of two tenants in com- mon agrees that he will furnish a home and support the other in consideration of his having the whole portion of the land is a lease,^^ § 201. Entry upon land of another under an option to pur- chase from him. A tenancy does not arise by implication of law between the owner of land and a person to whom he has given an option to purchase the land at a fixed price and within a certain time merely because the person having the option enters on the land to prospect for minerals or for any other purpose during the continuance of the option ; but if he remains in pos- session at the expiration of the time without right he becomes a trespasser.*'^ Hence neither the owner who has given the option nor his successor in interest can eject such person as a tenant at sufferance either during the continuation of the option or after its termination.*' § 201a. The mortgagee of the tenant's chattels in possession. The holder of a mortgage upon personal property which is in the demised premises who takes possession of the mortgaged property and of the premises with the consent of the mortgagor who is a lessee and is permitted to sell the goods and apply the proceeds to the payment of the mortgag-e debt is not liable for rent to the lessor of the mortgagor. The mortgagee may under *8 Matthews v. Matthews, 49 si Shouse v. Krusor, 24 Mo. Hun, 346-348, 2 N. Y. Supp. 124. App. 279. 40 Schreiber v. Goldsmith, 70 N. 52 Henry v. Perry, 110 Ga. 630, Y. Supp. 236, 35 Misc. R. 45, 104 36 S. E. Rep. 87. N. Y. St. Rep. 236. 53 Henry v. Perry, 110 Ga. 630, 5" Story V. Epps, 105 Ga. 504, 31 36 S. E. Rep. 87. S. E. Rep. 190; Herrel v. Sizeland, 81 111. 447. WHAT CONTRACTS ARE LEASES. 285 such circumstances make himself liable for rent to the lessor by an agreement either express or implied. Until he does so he is only an occupant under the lessee, being in fact merely the agent of the lessee for the sale of the mortgaged goods and the appli- cation of the proceeds to the mortgage debt. The lessee con- tinued to receive the benefit of the occupation of the premises and he must pay the lessor for the same. If. however, the mortgagor shall vacate, leaving the mortgagee in possession, and the mort- gagee pays rent to the lessor, the mortgagee may justly be re- garded as the assignee of the lease and is liable as such.^* Chat- tel mortgagees who before they take possession of personal prop- erty in demised premises promise a lessor to pay rent will be liable for rent while they continue in possession for the purpose of selling the goods. Subsequent litigation brought by the mortgagor involving the enjoining of the sale and the appoint- ment of a receiver in an action to set aside the mortgages do not relieve the mortgagees from liability for rent during the time the action is pending. It is the duty of the chattel mortgagees to apply to the court in such a suit for an order relieving them from liability for rent or to consent promptly to the appoint- ment of a receiver who would then become responsible for the care of the goods. Having failed to do this, the mortgagees of the chattels are in the position of assignees of the lessee and they are liable to the lessor for the rent stipulated to be paid by the lease and not for use and occupation merely. Nor can they avoid their liability by proving that the lessor took no proceed- ings to oust them from possession or to compel them to remove the mortgaged goods. A court of equity will on application of the lessor, direct that the rent for which the mortgagors are re- sponsible, shall be paid out of the proceeds of a sale by the re- ceiver though the mortgages are decreed to be valid.^^ In con- clusion, a chattel mortgagee who purchases the mortgaged chat- tels, the sale being made subject to the landlord's lien, and there- after enters on and occupies the premises, will be liable for use and occupation to an assignee of the lessee whom he keeps out of possession as well as to the lessor on the covenant to pay rent."*" B* Fisher v. PfoTzheimer, 93 5c Bolton v. Lambert, 72 Iowa, Mich. 650, 653, 53 N. W. Rep. 828. 483, 34 N. W. Rep. 294. 65 Hatch V. Van Dervoort, 54 N. J. Eq. 511, 34 All. Rep. 938. 286 LAW OF LANDLORD AND TENANT. § 202. Future lease of an unfinished building. There can be no question as to the validity of an agreement to execute a fu- ture lease of an unfinished building. Whether the completion of the building shall be a condition precedent to the execution of the lease usually depends upon the exact wording of the con- tract. "Where it has been agreed between the parties that a lease is to run from the completion of a building which is in course of construction, and it is stated in the lease, or in the agreement for the lease, that the building is to be completed on a certain date, the latter statement is not a covenant that the building will be completed on that date.^^ A contract cannot properly be called a lease where the premises referred to in the same are not in existence when it is executed and the lessor named therein does not own the land. It is rather a contract to build with an agreement for a future lease to begin as soon as the building is ready for occupancy. If the lessee so-called shall enter into possession and sha'l occupy the building before it 'is complete, he becomes responsible for rent during his occu- pancy. He will be presumed to have waived his right to be re- leased from his covenant to enter or to pay rent. If by reason of the delay in completing the building he has suffered any dam- ages, he may recoup them in an action against him for rent, to the extent of the rent, and if they exceed that amount he may re- cover the excess.^^ An agreement by which the owner of land agrees to erect a building on it according to plans and specifica- tions to be finished on a certain future date with rent to begin when the building is complete is a lease in presenti with posses- sion postponed to a future date. The mere fact that there is no certain and fixed date expressly mentioned in the lease on which the term is to begin does not invalidate such a lease because the term is not definite and certain. It is sufficient if the agreement shall specify when the building is to be completed and shall at the same time state that th? lessor may have possession when the C7 Noyes v. Loughead, 9 Wash. no title, is a lease where it does 325, 328, 37 Pac. Rep. 4.52. not in terms provide for the sub- 08 Haven v. Wakefield, 39 111. sequent execution of any other in- 509, 518, 519. A contract which strument and the tenant entered provides for the letting of a build- on the completion of the building, ing in course of con.struction Western Boot and Shoe Co. v. from the date of its completion, Gannon, 50 Mo. App. C42. the prospective lessor then having WHAT CONTRACTS ARE LEASES. 287 biiiklintr is completed. The right of the tenant accrues on the date the building is completed. He may then maintain eject- ment against an intruder and, on the other hand, he is there- after responsible to the landlord for the rent.'* But he is not liable to pay rent unless the building which has been erected substantially complies with the plans and specifications. He may show this in an action against him for the rent. He may also show that parts of the building as to which there were no plans and specifications have not been constructed in a reason- ably safe and workmanlike manner for the known purpose for which the building was meant to be used. If the building is not substantially adapted to his purpose, tlie tenant is not liable for rent if he refuses to enter when it is completed. He need not show that the building is entirely unsafe or in danger of falling down or actually unsafe for every purpose if it be unsafe for the known purpose for which it was intended to be used.®** § 203. Mortg-agor or his tenant and a purchaser at a sale un- der foreclosure. A purchaser of premises which have been sold under a foreclosure does not thereby become the landlord either of the o^vnaer of the equity or of tenants holding under leases from such owner, at least where the leases are dated sub- sequently to the date of the mortgage. The term granted by the lease after the mortgage has been executed is carved out of the equity of redemption and is therefore subject to all the in- cumbrances which are then upon the equity. The purchaser at the mortgage sale becomes the owner of the fee subject to such incumbrances only as were liens prior to the execution of the mortgage. He may accept as his tenants, persons who lease sub- sequent to his lien even without an actual attornment or he may 50 Colclough V. Carpeles, 89 Wis. there was created a term of years 239, 247, 61 N. W. Rep. 836. See in the premises, with a certain Bacon v. Bowdoin, 22 Pick. commencement and a certain ter- (Mass.) 401, where an agreement mination; in short, with all the to complete a building and fur- requisites of a lease." See, also, nish water power by a future day as to leases for terms to begin in was held a lease. Bussman v. futuro. Chapman v. Bluck, 4 Bing. Ganster, 72 Pa. St. 28.5. in which (N. C.) 187; Trull v. Granger, 8 Sharswood. J., says: "It is true, N. Y. 115, 118; Becar v. Flues, 64 here are no formal words of de- N. Y. 518, 520. mise, but it is very manifest that eo Colclough v. Carpeles, 89 Wis. after the erection of the building 239, 248, 61 N. W. Rep. 836. 288 LAW OF LANDLORD AND TENANT. treat them as trespassers, and may recover possession from them by ejectment or an action of forcible detainer at law or by a writ of assistance according to the local practice.®^ Where the purchaser at a foreclosure sale evicts the tenant of the mortgagor who is subsequent to the mortgage, the tenant is not entitled to emblements.*^ On the other hand, the purchaser at foreclosure cannot distrain for subsequent or prior rent or sue the tenant of the mortgagor holding over for subsequent or prior rent,^^ or for use and occupation,** unless the tenant shall have attorned to him and he accepted him. So it has been held that a mere notice by the purchaser at foreclosure to a tenant to pay rent t® him which the latter does not act upon does not make the tenant liable for the rent. For if the tenant does not attorn to the pur- chaser there is no privity between them from which the relation of landlord and tenant may be implied. But the relation of landlord and tenant is created where after a sale under a fore- closure, the purchaser at the sale agrees with the former owner of the mortgaged premises that the latter may remain in posses- sion, paying him rent for two years after the expiration of the time to redeem, with an extension of the right to redeem during the years."^ § 204. Contracts for advertising space. Agreements by which the owner of land permits another person to place an ad- vertising sign upon it are becoming more common in modem times. In many eases the agreement permits the person desiring 61 Downard v. Groff, 40 Iowa, 267, 271; Rogers r. Humphreys, 4 597, 599; Oilman v. Wells, 66 Me. Ad. & El. 299. 273; Lane v. King, 8 Wend. (N. 64 Peters v. Elkins, 14 Ohio. y.) 584; Jones v. Thomas, 8 344, 347. Blackf. (Ind.) 428, 431; Reed v. 65 Eldridge v. Hoefer, 45 Oreg. Bartlett, 9 111. App. 267; Bartlett 239, 77 Pac. Rep. 874. A tenant V. Hitchcock, 10 111. App. 87; Pet- of a mortgagor by a lease made ers V. Elkins, 14 Ohio, 344, 347; subsequently to the lien of the Sprague Nat. Bank v. Railroad mortgage does not thereby become Co., 48 N. Y. Supp. 65, 22 App. Div. a tenant of the mortgagee (Brid- 526; McKircher v. Hawley, 16 well v. Bancroft, 2 Ohio Dec. 697), Johns. (N. y.) 289. or of his assignee (.lackson v. 62 .Tones v. Thomas, 8 Blackf. Rowland, 6 Wend. (N. y.) 666,22 (Ind.) 428, 431. Am. Dec. 507), in the absence of 03 Reed v. Bartlett, 9 111. App. an attornment or express agree- ment to that effect. WHAT CONTRACTS ABE LEASES. 289 to advertise to erect or build a wooden sign upon vacant land. The placing of the sign involves the erection of a more or less permanent wooden structure which is fastened to the land and which occupies more or less space upon it. The making of such a contract creates by implication a license on the part of the landowner for the other party to the contract to enter upon his land for the purpose of erecting the structure and thereafter from time to time to enter upon it for the purpose of caring for and maintaining it. It therefore follows that while the sign is on the land there can be no trespass where the entrance is solely for the purpose of carrjnng out the contract. In other cases the sign is placed or erected upon a building, sometimes being painted upon the roof, or upon a wooden structure built upon the roof, and sometimes being painted on the walls on the front or sides of a house. The question often arises be- tween the owner and the other party to the contract whether such a contract is a lease or a license. Where there is an actual occupancy and possession of the land or of a portion of the prem- ises which excludes the landlord from his possession of that por- tion, the agreement would be a lease. Thus, an agreement by which a person is to have the use and the possession of a roof for advertising purposes, in order to get the benefit of which he must build and maintain a wooden structure upon the roof, is a lease and not a license.^® So, it has been held that the hiring of an outer wall of a building for the purposes of painting adver- tising signs thereon is not a license for the use of the wall but it is a lease. It involves the exclusive possession of the outside of the wall. The relation of the landlord and tenant is created between the owner of a wall and the advertiser.*'' Similar agree- ments have also been held to be licenses. Thus, an agreement by a lessee of a floor in a building to permit a third party, in return for an annual payment to him, to hang a sign on the outer wall of the premises is a license for the reason that it is merely a permission to do a particular act upon the premises. The court held it was a license because it was not a conveyance of the outside wall for all purposes. Hence this contract not being a lease the granting of this permission was not a breach of a cove- 66 Pocher v. Hall, 98 N. Y. Supp. st Oakford v. Nirdlinger, 196 Pa. 754. St. 162. 19 290 LAW OF LANDLORD AJSTD TENANT. nant by the lessee not to underlet.®^ An agreement by which the owner of property permits another person to place a bill-board and advertising station on his land, which is not to touch or be fastened to the wall of the premises and for which the person re- ceiving the privilege is to pay an annual rent, is not the lease of the land, though rent is spoken of. The agreement is a mere license, and it may be revoked by the owner of the land on a reasonable notice. Having in view a quarterly payment of rent, the court held a three months' notice sufficient.*^^ § 205. A purchaser of a crop on an execution sale of a tenant. One who purchases at an execution sale a crop growing on land does not necessarily thereby become a tenant of the owner of the land. The relation of landlord and tenant does not exist between the purchaser of the crop and the owner of the laud in the ab- sence of an express agreement to that effect between the parties. 68 Lowell V. Strahan, 145 Mass. 1, 12, 13, 12 N. E. Rep. 401, 1 Am. St. Rep. 122. 69 Wilson V. Tavener, 70 L. J. Ch. 263; (1901) 1 Ch. 578, 84 L. T. 48. The case of Pocher v. Hall, 98 N. Y, Supp. 754, draws a clear distinction between the construc- tion and maintenance of an ad- vertiser's structure in reference to signs placed upon the wall. Thus, a lessee of a building is not au- thorized to let out the roof for advertising purposes, though he has a right to sublet other por- tions of the building. O. J. Gude Co. V. Farley, 28 Misc. Rep. 184, in which the court said the pur- pose of a roof of a building is primarily to shelter it and all of its occupants, and the tenant of the top floor has no better title to the roof or better right to its use for any other purpose than shelter than ha.s the tenant of any other floor. His right to use the roof over him is like his right to use the supporting walls of the foun- dation when that is essential to the safety and quiet enjoyment of his premises. And any exten- tion of that right must be by agreement with or license from the owner. The court further held that a subsequent owner of the premises might remove the signs placed on the roof by the adver- tising company with the permis- sion of the tenant without being liable for trespass. Where a paper, though called a lease, merely per- mits the person to go on the roof of a building and to place adver- tisements upon a structure already erected, and conveys no interest or any right of possession in it and the sign on which the adver- tisement was to be placed had been erected some time before the contract was executed, it is not a lease but a license. The adver- tiser cannot be held liable for the result of personal injuries where the sign board was blown down into the street by the wind. Rey- nolds V. Van Beuren, 155 N. Y. 120-123, 49 N. E. Rep. 7G3, 42 L. R. A. 129. WHAT CONTRACTS ARE LEASES. 291 All that the jjiirchaser gets is the right to remove the crop with the privilege of ingress and egress to remove it which makes him a licensee and not a lessee. He is entitled to a reasonable time after the crop has matured to harvest it and to remove it and these rights and privileges he enjoys without liability on his part for the reasonable value of the use and occupation of the land.'^° § 206. The judgment debtor holding over after a sale on an execution. There is no implied promise on the part of a judg- ment debtor holding over after the sale of his land under an exe- cution, to continue as a tenant of the purchaser at the execution sale. Hence there arises no implication of any contract of lease between him and the purchaser on the execution and, as the re- lation of the landlord and tenant is based on contract express or implied, no tenancy exists by implication from the execution debtor holding over. He is then merely a trespasser who may be ousted at any time by the purchaser on the sale and from whom, at the same time, no rent can be collected by the purchaser for the period he remains in possession.'^^ If however the purchaser permits the judgment debtor to continue in possession, and a fortiori, if knowing who he is, he receives rent from him while he holds over, the relationship of landlord and tenant arises be- tween the parties and a tenancy at will is created, unless some specific term shall be agreed upon by them.'^^ § 207. Whether an instrument is a lease or a partnership agreement. It sometimes becomes important, in view of the difference which in law exists betw^een the reciprocal rights and 70 Raven tas v. Green, 57 Cal. (Tenn.) 16, and Wood v. Turner, 254; McClellan v. Krall, 43 Kan. 7 Humph. (Tenn.) 517, it was 216, 218, 23 Pac. Rep. 100; Crad- held that one who is in possession dock V. Riddlesbargar, 2 Dana when land is sold by virtue of a (Ky.) 205; Coombs v. Jordan, 3 decree in chancery or under an Bland Ch. (Md.) 284, 22 Am. Dec. execution at law is a quasi tenant 260; Hartwell v. Bissell, 17 Johns. oi." the purchaser at least to the (N. Y.) 128; Brittain V. McKay, 35 extent of being estopped to deny Am. Dec. 738; Smith v. Tritt, 28 the title of the purchaser. See, Am. Dec. 565; Whipple v. Foot, 2 also, to same effect, De Silva v. Johns. (N. Y.) 418. Flynn, 9 Civ. Pro. Rep. (N. Y.) 71 Tucker v. Byers, 57 Ark. 215, 42G. 21 S. W. Rep, 227; Griffin v. Roch- ■?2 Munson r. Plummer, 59 Iowa, ester, 96 Ind. 545; Chalfin v. Ma- 120, 12 N. W. Rep. 806: Jackson lone, 9 B. Mon. (Ky.) 496. In v. Sternbergh, 1 Johns. Cases, 153. Siglar V. Malone, 3 Humph. 292 LAW OP LANDLORD AND TENANT. duties of partners and those of landlord and tenant, to determine whether a writing is a partnership agreement or a lease. On this question no general rule can be laid down for each case is a law unto itself to be determined according to the intention of the parties to be gathered from the contents of the writing and the circumstances of the parties and of the subject matter. That the writing describes the parties to it as partners is not conclusive if it is otherwise apparent that a lease was intended. So, an in- strument which recites that the parties to it are partners in busi- ness and that they as such own a building but which furthermore provides that one of them is to take charge of and run the prop- erty as a hotel for a term of years and to pay to the firm at the end of each year a fixed sura is a lease for a term of years and not a partnership arrangement, terminable by either party. This is apparent not only from the fact that the entire posses- sion is transferred to a lessee but also because there is no provi- sion for a division of either profits or loses. Hence the fact that the landlord supported a statute passed after the leasing by the enactment of which the profits of the hotel are greatly diminished is no breach of the lease entitling the tenant to ask for a rescission as he took the lease subject to regulation by the legislature.'^^ An agreement which provides that the occupant of certain premises is to pay as rent to the owner one half of the profits resulting from the occupant carrying on a business in the said premises is a lease and not an agreement of partnership. Leases providing for the pajrment of a share of the profits as rent are by no means uncommon. The fact that the agreement does not provide for a division of the losses, if any, between the parties is not always material. And the presumption that such a writing constitutes and was intended by the parties for a lease, and not as an agreement for a partnership would be rendered almost, if not altogether, conclusive, by the fact that it speaks of a yearly ren1;il to be paid, provides for a renewal when it exf)ir(;s and confers on the occupant the right to assign the lease- hold interest.'^'* A Meriting which purports to be in form at least a Icjusf, and wliich confers upon the lessee so-called, the entire c(H)lrol of a factory together with the right to employ and to discliarge persons working there, rejserving to the owner of the Ts Baiighman v. Partman, 14 S. 74 z. c. Miles Co. v. Gordon, 8 W. Rc-p. (Ky.) 342. Wash. 442, 36 Pac. Rep. 2G5, 267. WHAT CONTEACTS AEE LEASES. 293 premises no powers as to the management of the business but stipulating that the profits of the business exceeding a certain amount shall be paid to the party owning the factory and plant creates the relation of landlord and tenant and not that either of partners or of principal and agent."^ So, an agreement for one year by which, in consideration of receiving one half of the crop, the owner of land permitted another to occupy it, each party to furnish one half the stock and seed, and the lessee to supply the farming implements and the labor and also to pay the taxes, and to account at intervals for all receipts and ex- penditures, is a lease, and not a partnership agreement/* From the cases cited it may be gathered that a division of the profits between owner and occupant is of very little weight as raising a presumption of a partnership where the division is made in lieu of paying rent. For the money thus paid to an owneT though it may be called a share of the profits is in reality rent. The amount may fluctuate but its character as rent remains fixed. And money paid and received as rent does not lose its character as rent because the parties to the payment chose to call it a division of partnership profits. The real test in all of these cases lies in the answer to the question in whose control is the premises? And the fact that the occupation, enjoyment and control of the premises are wholly surrendered by one party and exclusively vested in the other goes a long way to convince one that a lease was intended. § 208. Contracts for steam heating and for steam and water power. Agreements by which owners of premises stipulate to furnish persons who are their tenants with a stipulated steam power are very common and may with some propriety be called leases. Regarding them as leases, the general rules of construc- tion of leases apply. Some special rules growing out of the use of steam for power and out of the character of the means by which it is generated and supplied must also be considered. In construing a lease of steam power in connection with a lease of the premises, the court will consider the previous condition of the premises under the general rule that a grant will be con- TsAult Wooden-Ware Co. v. 113, 8 W. N. C. 475, 37 L. I. 300, Baker, 26 Ind. App. 374, 58 N. E. 12 Lane. Bar. 41, affirming Brown Rep. 265. V. Jacquette, 1 Del. Co. 297. T'. Brown v. Jaquette, 94 Pa. St. 294 LAW OF LANDLORD AND TENANT. stnied by considering the condition of things M'hich were in the minds of the parties when it was made. Hence, where a land- lord in leasing premises which required the use of steam power for their full enjoyment confers on the tenant the right to use half the power of "the then present therein located steam en- gine, " it is competent for the lessee to show his prior accupancy of the premises and his manner of the former use of the power supplied by the engine. The fact is that the lessor when execut- ing the lease actually knew these facts and therefore contracted with them in view. And where the lessee had used the exhaust steam after it had furnished him power and it was absolutely necessarj^ for his business for him to continue to do so a right to use it will pass under "appurtenances" where the "steam power" only is demised.''^ "Where a lessor is bound to furnish the necessary power to run the lessee's maehiners", as it was fur- nished when the lease was executed, and a blast was necessary to enable the lessee to use his forges and was when the lease was made and subsequently thereto for years actually supplied, so essential an incident will be considered as passing by the lease, and it will not be presumed to have been held by the lessee, under a license, revocable at will.'*' Usually there is no implied obliga- tion on the lessor to furnish the lessee with steam power. Thus, the lease of a foundry with the joint use of an engine room by the parties with an agreement by the tenant to pay for steam furnished by the landlord, in consideration of which the landlord was to have the use of the engine free of charge, does not bind the landlord to furnish the tenant with steam. There certainly is no express obligation to do this nor is there one implied from the terms of the agreement.'^* An agreement by a lessee simply to pay for steam furnished without requiring the lessor to fur- nish any, and without the lessor agreeing to furnish any, raises no obligation to furnish or accept power. But if the furnishing of steam by the lessor was a necessary incident to the use of the premises by the occupant and the power had been used by a former tenant and the lessor knew all this, there may arise a presumption that the lessor Avas to furnish steam power. A 77 Thomas v. Wiggins, 41 111. to Penn. Iron Co. v. Deller, 113 470. Pa. St. C35, 18 W. N. C. 371, 43 T« Thrc'iJp V. Field, 20 N. J. Eq. L. I. 499. 82, 85. WHAT CONTRACTS ARE LEASES. 295 landlord of a mill who leases a part of the mill with madiiner\' and who agrees to supply steam or other power for working the machinery is by implication compelled to supply the power in such quantity and manner as will render the working of the machinery safe. If, owing to a defect in the machinery, power is supplied in such excess as to break the machinery, and to kill one of the tenants working there, the landlord will be liable. The supply of the power is not a mere incident of the lease of a portion of the premises, but is a substantial contract in itself, and the tenant is not compelled to take it when it is furnished in a careless and negligent manner. He may recover from the land- lord upon the theory of his negligence or upon an implied war- ranty of the quality of the power, any damages he may have suffered by reason of an improper, insufficient or excessive sup- ply of steam or other power.^'' A tenant who sues his landlord for a failure to furnish steam power which he has contracted to furnish, it has been held in New York, cannot recover for loss of profits, nor for the value of materials lost, nor for losses by reason of inability of his workman to do the amount of work he could have done had proper steam power been furnished, nor for repairs to his machinerj-.®^ The measure of his damages is the difference between the rental value of the premises without any steam power and its value with the power which the landlord has agreed to furnish, having relation to the particular use which was to be made of the building by the tenant.*- In ^Nlassa- ehusetts, it has been held that the lessee may recover the actual damages which he has sustained in loss of business hy reason of the failure or refusal of the lessor to furnish steam power which he has covenanted to supply. An agreement by the lessor that he will not charge any rent for the time the lessee is deprived of steam power by his failure to supply it, does not constitute a liquidation of the damages unless it clearly and unequivocally «o Bentley v. Metcalf, 75 L. J. K. v. Giblin, 16 Daly, 258, 32 N. Y. B. 891, (1906) 2 K. B. 548, 95 L. T. St. Rep. 59, 10 N. Y. Supp. 315, 596, 22 T. L. R. 676; Trenkman y. affirming 5 N. Y. Supp. 545, 25 N. Schneider, 26 Misc. Rep. 695, 56 Y. St. Rep. 827. N. Y. Supp. 770, reversing 51 N. «= Pewaukee Milling Co. v. How- Y. Supp. 232, 23 Misc. Rep. 336. itt, 86 Wis. 270, 56 N. W. Rep. 81 Manhattan Stamping Works 784. V. Koehler, 45 Hun, 150; Russell 296 LAW 01'' LANDLORD AND TENANT. appears siicli was the intention of the parties.^^ If the failure to furnish steam power results in the total deprivation of the use of the premises, it may be regarded as an eviction. The fail- ure of the landlord to furnish his tenant, who is a manufacturer, employing steam with steam power, where the lease stipulates that the landlord shall furnish a given amount of power, by reason of which the tenant's men. were kept idle, the tenant suf- fered great loss in his business and he was finally compelled to surrender the premises, is a constructive eviction which may be set up by the tenant as a defense in an action to recover rent.^* A landlord who has covenanted in a lease of a floor space, that he will furnish a certain quantity of power to op- erate the machinery of his lessee, cannot be compelled to do so by an injunction. Nor can he be restrained by a court of equity from furnishing a less amount of power. This case comes under the rule that a contract for service will not be enforced by in- junction. The lessee's remedy is a legal one. He cannot in equity procure a specific performance of the contract of the landlord to furnish steam power unless it can be shown that there is an obligation on his part to accept such power. The measure of his damages at law would be the direct loss to his business because of the failure of the landlord to furnish steam power.^' The lease of a factory operated by water power not containing an express grant of such power will convey a right to use the power by implication so far as the lessor possesses the right but no further. If, therefore, the water power was but part of a larger water power in which the lessor was a co- tenant with others and the lessee should use more than his lessor's proportion of it, no right of action against the lessor could arise in favor of other co-tenants.®^ 83 Fisher v. Barrett, 4 Cush. as to what they were to give and (Mass.) 381, 383. receive, see Smith v. Werwenz, 8*Myer v. Roberts (Or. 1907), 185 Mass. 229, 70 N. E. Rep. 57. 89 Pac. Rep. 1051; Trenknian v. ss Sipe v. Bartlett, 12 Ohio C. Schneider, 56 N. Y. Supp. 770, 26 D. 226, 22 R. 230. Misc. Rep. 695, reversing order, so Wyman v. Farrar, 35 Me. 64, 51 N, Y. Supp. 232, 23 Misc. Rep. 7l, also construing the words, "as 336. For a lease of steam power now used," in connection with a under very peculiar circum.slancos mill run by water power. of the ignorance of both parties WHAT CONTRACTS AKE LEASES. 297 § 203. Miscellaneous cases. There are many sorts and kinds of contracts for the use of land the character of which is ex- tremely doubtful. Their construction is dependent upon the particular circumstances of each case and the language of the contract. Thus, the question may arise whether an instrument in writing is a lease of land or a license, whether it is a lease or a contract of sale, or a contract for the hiring of personal prop- erty. Thus, for example, an agreement by which the officials of a town confer an exclusive privilege of using a building which is erected by the person who received the privilege as a market house to keep the same as a market under a town ordinance re- quiring vendors of goods to rent a stall of him in the building at prices fixed by the ordinance is not a lease where the house was erected upon property w^hicli the towTi did not own. The fact that no interest in the land passess under this instioiment de- prives it of the character of a lease. The party to whom the privilege is granted has his remedy for the breach of the contract if the town subsequently erects, or permits others to erect a mar- ket elsewhere, but he cannot use any remedy against the town Avhich he might have had if the contract were a lease.^ An agreement by which a person agrees with a corporation to place on the premises OAvned by the corporation, electric lights at a certain rental per month, is not a lease, but a hiring of personal propert}' by the corporation.^^ The line between a license and a lease is sometimes difficult to distinguish. "Thus, a privilege granted by a deed in return for an annual payment by which the grantee is permitted to discharge the drainage of his land upon the lands granted in the deed, is a lease and not a license. The occupation of the land by the drainage is evidently suffi- cient possession to constitute this agreement a lease.^^ The sale of lumber by a person upon whose land it is growing does not alone constitute the vendee a tenant of the vendor; but an instru- ment executed by the land o\\'ner granting all the timber, grass and berries that may be found on the land for a term of years and giving him possession is a lease. The grantee may sue there- 87 Brookhaveu v. Baggett, 61 Kittrick Dry Goods Co., 91 'Mo. Miss. 383, 390. App. 454. 88 Bruckman v. Hargadine -Mc- 89 Morrell v. Mackman, 24 Mich. 279. 298 LAW OF LANDLORD AND TENANT. after in his own name, as a tenant of this land^ for trespass upon it and for the conversion of any of the products of the land dur- ing the term."*' The purchaser of lumber growing on land will by implication have a license to enter upon the land to remove it which he must do in a reasonable time. If he does not remove it in a reasonable time after he is notified that he must take it away, he will become a tenant of the owner by reason of his delay in the absence of an express agreement to the contraiy. If the notice to remove the lumber be accompanied by a state- ment that a specified rent will be charged in case of his failure to remove it, he will be compelled to accept the term if he per- mits the lumber to remain.®^ Contracts and agreements by which owners of land containing coal or other mineral, permit other persons to enter upon the land, and to dig mines thereon are usually regarded as leases. The possession of the person operating the mine or quarry is the possession of a tenant. This presumption is strengthened by the fact that there is a fixed sum payable as rent.®- Thus, an exclusive privilege for a speci- fied term of years, allowing the party to whom it is granted to quarry and take away all the stone he may have use for upon paying the owner of the land a certain fixed sum, according to the quantity taken by him is a lease. It is binding as such on both parties where it is clear from the evidence that they in- tended that the quarry should be actually w^orked. It is binding on the lessee and he cannot treat it as a mere option. He must take out a reasonable quantity of the stone, though he may not have use for all he takes; and if he fails to do so, he is respon- sible in damages which are to be measured by the agreed amount he was to pay.°^ The giving of a lease of a stall in a market by a cily corporation does not deprive it of its power to regulate markets. The creation of the relation of landlord and tenant between a city and a market man does, however, limit the power which the city may exercise over the market. Under such an agreement it would certainly have less power over the use which the market man might make of his premises than where the per- 00 Freeman v. Underwood, 66 02 Greenough's Appeal, 9 Pa. St. Me. 229. 18. 01 Ducey Lumber Co. v. Lane, »3 Watson v. A'Hern, 6 Watts 59 Mich. 521. (Pa.) 362. WHAT CONTRACTS ARE LEASES. 299 mission to occupy a stall is a mere license. An instrument exe- cuted by a city which confers upon the occupant of a market stall a right of possession in exchange for the payment of a daily rent is a lease. Having granted a lease, the lessor cannot arbitrarily prevent the tenant from using the telephone service in connection with his occupation of the stall, or limit his occu- pation and enjoyment of the stall in an arbitrary manner. No such power is conferred upon the city though in its charter it may have an almost arbitrary power to regulate a public mar- ket. The lessee, however, will not be permitted, because he is a lessee, to make an unreasonable use of the premises which has been leased to him or to use it in such a way that it will inter- fere with the rights of others in the market. The lessor still has the power to make reasonable regulations which shall be appli- cable to all persons who occupy stalls in the market.^* A con- tract by the owner of a mill by which the other contracting party is to operate it and manufacture shingles from wood fur- nished by the owner for which he is to be paid so much per thousand out of which he is to pay for lumber and tools, is a contract of personal hiring and not a lease of the mill.®^ And in conclusion, a contract between the owners of lands which are adjoining that a third person is to erect machinery with a boiler to operate it on the land of one of them, which machinery and boiler are to be used by both of the contracting parties, with a provision that the one who makes the largest offer for the share of the other should have the first right to buy it, and that neither of them would sell his land without the consent of the other, is not a lease. Hence the relationship of landlord and tenant does not exist between the two parties.^*' § 210. Whether occupant of premises is servant or tenant. The necessity of determining the relations of the parties to a contract of hiring may arise where the servant occupies prem- ises belonging to the master. The inquiry may then be. is the servant a seiwant only or is he also a tenant with all the rights of a tenant. The matter is always one of intention to be deter- mined upon all the facts and circumstances of each particular fl^ Swayze v. City of Monroe »5 Whitney v. Clifford, 46 Wis. (La. 1906), 40 So. Rep. 926. 138. 86 Hill V. Hill, 43 Pa. St. 528. 300 LAW OP LANDLORD AND TENANT. case. No general rule can be laid down which shall be decisive in all cases."^ § 211. The intention of the parties. In determining whether a contract is a lease or one of hiring, it must first be decided whether the principal object of the parties is to treat and ar- range for. the possession and occupation of the premises with an intent that the rent shall be paid in labor by the occupant as a tenant, so that the services are merely an incident of the rent- ing; or whether the principal purpose of the parties was to sup- ply and to procure labor,, and the possession and occupation of the premises were incidental to the labor. This is a question of law for the court to be decided upon the terms of the contract and all the circumstances of the parties as they may be deter- mined by the jury, with particular relation to the character of the services which were to be rendered. If the principal sub- ject of the contract is labor, if that was what the owner of the land was desirous of securing and the occupant of supplying, then it is a hiring, and not a lease, and the occupation is the occupation of a servant or agent and not that of a tenant.''^ For the occupancy of the premises by a servant where the purpose of the occupancy is merely to enable the servant the better and more conveniently to perform his services, does not create the relation of landlord and tenant, particularly where there is no letting in express terms and no rent is reserved in money.*^^ In other words, where the occupation of the premises is not the principal thing, but where it is merely an incident of the em- 87 A person who occupies the relations of the parties is deter- premises as the servant or agent mined whenever the special pur- of another for the more convenient pose is accomplished. Deutsch v. performances of his duty acquires Chemical Co., 11 Ohio Dec. 495, no estate therein, and is neither a 8 N. P. 428. tenant at will nor by sufferance, os Bowman v. Bradley, 151 Pa. though he is permitted to carry St. 351, 24 Atl. Rep. 1062, 10G3, 31 on an independent business on the W. N. C. 142, 17 L. R. A. 213. premises and receives lower wages oo School District No. 11 of Al- for that reason. In such, and in- pine Tp. v. Batsche, 106 Mich. 330, deed all, cases where the posses- 333, 64 N. W. Rep. 196; Kerrains sion is given for a special purpose, v. Peoi)le, 60 N. Y. 221; State v. the transaction is treated as a Curtis, 4 Dev. & B. (N. C.) 222; license, not as a lease, and does Re.x v. Inhabitants of Chesnut, 1 not confer any estate In the prop- Barn. & Aid. 473 erty to which it relates, and the WHAT CONTRACTS AKE LEASES, 301 ployment, aiid to give the occupant a better and fuller oppor- tunity to perform the duties of his contract of employment, the occupant is a servant and not a tenant. 1 Mayhew v. Suttle, 4 E. & E. 347; Allen v. England, 3 F. & F. 49; Bertie v. Beaumont, 16 East, 229; Rev v. Stock, 2 Taunt. 339; Rex V. Bardwell, 6 Ad. & El. 278; Regina v. Ponsonby, 3 Ad. & El. (N. S.) 14; Rex v. Tynemouth, 12 Kasl, 46. A company owned land on which it opened quarries. On the land the company erected buildings which were designed for use as boarding-houses for em- ployees. It made a contract with a person to "run" these boarding- houses, by the terms of which he w^as to furnish all furniture, bed- ding, etc., for the houses, to board the company's men for so much per week and to pay it so much rent each month. The company deducted each man's board bill from his wages and paid the total over to the person, less the rent for the premises. The number of men employed by the company varied each week, and the com- pany neither agreed to furnish a certain number of boarders nor that all their men should board with the party. The latter gave his time and personal attention to the supervision of the boarding- house. It was held that this amounted to a lease of the house and created the relation of land- lord and tenant, and not of mas- ter and servant, between the par- ties. Lightbody v. Truelson, 39 Minn. 310, 40 N. W. Rep. 67. In deciding this case the court said: "A tenant may be defined to be one who has possession of the premises of another in subordina- tion to that other's title, and with his consent. No particular form of words is necessary to create a tenancy. Any words that show an intention of the lessor to divest himself of the possession and con- fer it upon another, but of course in subordination to his own title, is sufficient. While, of course, the existence of certain things is nec- essary to constitute a lease, there is no artificial rule by which the contract is to be construed. It is largely a question of the intention of the parties, to be collected from the whole agreement. It seems to us that the agreement in the present case all loolcs to a leasing of these boarding-houses to plain- tiff, and not to an employment of him as an agent to manage them for the company. Every provi- sion of the contract contemplates his occupancy as landlord or pro- prietor. There is nothing to in- dicate that his possession of the buildings was not to be exclusive; on the contrary, the nature of the business and the manner in which it was to be run, neces- sarily imply that it was to be in- clusive. He was to run the busi- ness, not for the benefit of the company, but for himself; the profits, if any, being his, and the losses, if any, he would have to stand. He took his chances on the number of boarders he would get; the company did not obligate themselves to furnish any partic- ular number. He furnished the house and provided the supplies at his own expense, just as any boarding-house keeper would do, if running the business as princi- 302 LAW OF LANDLORD AND TENANT. § 212. Illustrations of the rule. The fact that the occupant of land is by a writing designated as the servant, agent or sup- erintendent of the owner of the land, while some evidence, is by no means conclusive. It may be shown by all the other circum- stances that a lease was made in which case the occupant will be a tenant.^ The fact that one who is acting as a servant has given him the absolute possession of the premises for a definite period is a Y&ry strong circumstance to show that he is also a tenant.^ On the question whether the occupant is a servant or a tenant the facts are usually contradictory. It is for the jury to deter- mine. The absence of any contradiction as to the facts makes it a question of law for the court. A person who acts as janitor and occupies apartments in the building which he rents from his employer by the month is usually a tenant. The fact that he deducts his salary from the rent does not alter the relation- ship which exists between him and the owner.* On the other hand, a man and his wife who engage to work for the term of a year as a farmer and housekeeper for the owner of the farm are servants only. The fact that they occupy a house on the premises does not alone make them tenants.^ § 213. The character of the possession of the premises as de>- termining whether an occupant is a servant or tenant. In de- termining whether a writing is a lease or a contract of hiring, the court must consider what possession and control the occu- pant is to exercise over the premises. This is material to deter- mine whether an occupant is a servant or a lessee. A lease in- volves possession by the lessee which during the term is so far adverse to the lessor as to give the lessee a right to bring tres- pal, and not as agent for another. were paid was unimportant. That What was paid him was for board- was a mere question of conveni- Ing the men, and not as compen- ence." sation for services as agent. More- 2 Colcord v. Hall, 3 Head over, he paid a fixed rent for the (Tenn.) G25. use of the buildings, the amount 3 Snedaker v. Powell, 32 Kan. of which was not at all dependent 395. upon the number of boarders the * Anderson v. Steinrich, 74 N. company furnished. It was to be Y. Supp. 920. See, also. Ofoch- tbe same whether they furnished lager v. Sinbeck, 50 N. Y. Supp. one or one hundred. The manner 8G2, 22 Misc. Rep. 595. In which the board-ljills of the 5 Haywood v. Miller, 3 Hill (N. men or the rent for the buildings Y.) 90 WHAT CONTR^VCTS ARE LEASES. 303 pass.® The power of a servant over the premises which he occu- pies as to their use, maintenance and repair is vastly more limited than that of a tenant under the same circumstances. Thus, the courts have considered that while many provisions in a lease have a double aspect and may be consistently construed to make the occupant either a servant or a tenant, others admit of only one construction. Thus a provision that the occupant of a fac- tory is to keep it in repair, that he should have possession of it for a particular use, that he should employ and discharge ail persons employed in the factory and fix their wages, that he should determine the water power to be used, that he might use the adjacent land, lease buildings thereon and receive and appro- priate to his own use the rents for the same being appropriate to a lease and not to a contract of hiring, admit of but one con- struction and raise a conclusive presumption that the relation of landlord and tenant exists between the parties.'^ So, where the owner of a hotel agreed that a party might occupy it for a term of years, during which he was to live there with his family rent free, employ and discharge servants and manage and con- trol the business and in compensation therefor, receive a stipu- lated portion of the net profits, the relation between the parties is that of landlord and tenant, not that of master and servant.^ It is quite different where the occupant is the servant of the owner. In the latter case, he has no possession of his own, ex- cept so far as he has a license to remain on the land which is re- voked by his discharge as a servant. If the occupation by the servant is merely incidental to his employment, the relation of landlord and tenant does not exist.^ If the use or the occupa- tion of the laud be as a servant, the master still has possession inasmuch as possession by the servant is the possession of the master. As soon as the servant is discharged he becomes a tres- passer as to the master if he remain on the land and must, on 6 Zinnel v. Bergdoll, 9 Pa. Super. » McQuade v. Emmons, 38 N. J. Ct. 522, 7 Del. Co. R. 369, 44 W. N. Law, 397; Haywood v. Miller, 3 C. 54. Hill (N. Y.) 90; People v. Annis, TFiske V. Framingham Mfg. Co., 45 Barb. (N. Y.) 304; Bowman v. 14 Pick. 491, 493. Bradley, 151 Pa. St. 351, 24 Atl. 8 Page V. Street, Speers (S. C.) Rep. 1062, 31 W. N. C. 142, 17 L. Eq. 159. But see contra. State v. R. A. 213; McCutcheon v. Cren- Page, 1 Speers (S. C.) 408, 40 Am. shaw, 40 S. C. 511, 19 S. W. Rep. Dec. 608. 140. 3Qi LAW OF LANDLORD AND TENANT. request, quit the premises. He may, it has been held, be ejected by the master or at his direction and for that purpose such force may be used as is reasonably necessary. And the right of the master to eject his discharged servant in no wise depends upon the answer to the question whether the ser\^ant was rightfully or Avrongfully discharged. It exists in the one case as well as in the other; the only remedy of the servant being found in an action against the master for damages for a breach of the con- tract of employment.^** 10 Lightbody v. Truelson, 89 Minn. 310, 40 N. W. Rep. 67. In speaking of a farm servant the court, by Williams, J., in Bowman V. Bradley, 151 Pa. St. 351, said: "The labor was to be performed upon the land, in its cultivation, in the care of the cows, and the delivery of the milk. As Bow- man was not a cropper, or a ten- ant paying rent, his possession of the land and the cows, and the im- plements of farm labor, was the possession of his employer. The barn was used to stable the cattle and store their feed. The house was a convenient place for the residence of the laborers. The house, the barn, the land, the cat- tle, the farming tools, were turned over to the man who had been hired to care for the property; but he had no hostile possession, no independent right to posses- sion. His possession was that of the owner whom he represented, and for whom he labored for hire. This is not denied as to the farm, the barn, the stock, or the tools, but an attempt is made to dis- tinguish between the house and everything else that came Into the powssession of the employee in pur- suance of the contract of hiring. There is no valid ground on which such a distinction can rest. If the possession of the house be re- garded as an incident of the hir- ing, the incident must fall with the principal. . . . His right under the contract of hiring was like that of the porter to the pos- session of the porter's lodge; like that of the coachman to his apart- ments over the stable; like that of the teacher to the rooms he or she may have occupied in the school building; like that of the domestic servants to the rooms in which they lodge in the house of their employers. In all these cases, and others that might be enumerated, the occupancy of the room or house is incidental to the employment. The employee has no distinct right of possession, for his possession is that of his em- ployer, and it cannot survive the hiring to which it was incidental, or under which it is a pai-t of the contract price for the services per- formed. So in this case, if the contract was simply a contract for labor at one dollar per day and a house to live in, the plain- tiff held the house by the same title and for the same purpose that he did the land or the cattle in the care of which his labor was to be performed. When his con- tract was ended, his rights in the premises were extinguished, and it was his duty to give way to his successor. Y7HAT CONTRACTS ARE LEASES, 305 § 214. The power of the master to remove his servant from the premises. The question whether the occupant of premises owned by another is a servant or a tenant of the owner, may arise where the owner seeks to employ force to remove the goods of the occupant from the premises and the latter has resisted force with force. If the relation of master and servant exists between the occupant and the owner, it follows that the legal possession of the premises is in the owner and not in the servant and he would consequently have the legal right to remove the goods and furniture of the occupant therefrom. Having such legal right, and the possession of the servant being merely the possession of the owner, the latter is justified in using the degree of force necessary to effect the removal of the goods and the oc- cupant would not be justified in using force to prevent their re- moval unless the conduct of the owner was such that, because he threatened to use a pistol or other deadly wer^pon, the occupant believed or had reason to believe that his life was in imminent danger. Under circumstances of this character the occupant, though he be a servant, would be justified in using the necessary force to prevent injury to himself but no more. If, on the other hand, the occupant is holding the premises as a tenant and not as a servant of the owner, he has the legal right to defend his property and possessions by proper and necessary means even to the extent of employing force. He can then legally be ousted only by some appropriate action provided by law, for the pur- pose of transferring to the owner the possession of the property. If, however, being a tenant, he shall employ excessive or unneces- sary force in resisting the efforts of his master, who is also the owner of the premises, to regain possession either as to the amount of the force employed or as to the character of the weap- ons used, he may make himself criminally liable." § 215. Contract of hiring by a religious society. A contract by which a religious society hires a pastor or minister is in law a contract of master and servant. The consideration proceeding from the society is usually a salary and in some cases the use of the parsonage as a residence. The occupation of the parson- age by the pastor as a part of his compensation does not neces- sarily make him a tenant thereof. The contract between him and bis employer is a personal hiring and terminates on his death 11 People V. Kerrains, 60 N. Y.221. 20 306 LAW OF LANDLORD AND TENANT. because of tlie rule that a contract personally to either party terminates with the death of the party. Hence, it follows that the personal representative of the pastor after his death has no right to the possession of the parsonage, for usually the pas- tor's occupation of the parsonage being connected with and in consideration of his services as pastor does not create the rela- tion of landlord and tenant, between him and his church.^^ So. it is held that the relationship which exists between a bishop of the Roman Catholic church and a priest of his diocese and under his jurisdiction is that of master and servant. In almost all cases the priest as a part of his compensation occupies premises which are owned by the church. He is therefore on the basis of any other employee or agent of the owner and his possession is the possession of his employer. The fact that the title of all the real property occupied by the priest as a parsonage is vested absolutely in the bishop as an individual, does not alone establish the relationship of landlord and tenant between the priest and the bishop. The contract of hiring is usually termin- able at any time at the election of the bishop and after it is ter- minated he may treat the priest as an intruder where he holds over on premises belonging to the bishop. ^^ § 216. A public officer as a tenant of a county. It is hardly necessary to say that a public officer holding office under a muni- cipal or county government is not the tenant of the building oc- cupied by him in his official capacity. Nor will the fact that he carries on a private business in connection with the perform- ance of his official duties make him a tenant of the county and city in the absence of an express agreement to that effect. Thus, the register of deeds of a county is not a tenant of the county, though under his appointment he is entitled to the use and pos- session of an office in the building owned by the county. The fact that while thus in possession ofticMally of the building he carries on a private business does not make him a tenant of the county nor raise any implied promise on his part to pay rent. The fact that a person not an official carries on the deputy regis- ter's private business in the building owned by the county dur- ing the time the deputy is out of office, together with the fact 12 East Norway, etc., Church v. i" Chatard v. O'Donovau, 80 lad. Frolslie, 37 Minn. 447, 450, 35 N. 20. W. Rep. 260. WHAT CONTRACTS ARE LEASES. 307 that the official paid rent for the building while ho was out of- fice, does not make him liable for rent after he shall have been restored to office.^* The relation between a teacher and the pub- lic officials of a school district by whom he is employed is that of master and servant. The furnishing of living apartments by the authorities for the teacher in the school building does not make him a tenant. Of course, the relation of landlord and ten- ant may be created under such circumstances by express lan- guage, but the fact that the occupancy of the school building enables the teacher to perform his duties more conveniently is a very strong circumstance to show thi:t tliere was no intent on the part of either party that there should be a tenancy.^^ § 217. A servant holding over after his employment is at an end. This discharge of a servant who has occupied the prem- ises of the master terminates his right of occupancy. If he is a servant merely and not a tenant, it would seem that upon the termination of the hiring he would become a mere trespasser. It has been held, however, in one or two instances, that having been in possession lawfully he becomes a tenant at sufferance when he holds over without the right to do so. But this is true only where the master or owner of the premises consents that he shall remain long enough to raise an implication of acqui- esence in the occupancy.^** If the duration of the employment is not fixed or certain, it may be terminated by reasonable notice. On the termination of the employment by notice the tenant who occupies premises owned by the master ought to have a reason- able time to remove and would be regarded as a tenant at suffer- ance.^^ § 218. The rights of the third parties. "Whether an occupant of land is a servant of the owner or a tenant is important to de- termine because of the rights and interests of third parties. Thus, where a tenant being ' ' a cultivator of the soil ' ' on shares with the owner has a right to incumber the crop with liens before its division, it has been held that a mere servant or 1* Board of Supervisors v. Caw- 106 Mich. 330, 64 N. W. Rep. 196; gill, 97 Mich. 448, 56 N. W. Rep. People v. Annis, 45 Barb. (N. Y.) 849. 304. 15 School District v. Batsche, it Eichengreen v. Appel, 44 111. 106 Mich. 330, 64 N. W. Rep. 196. App. 19. 16 School District v. Batsche, 308 LAW OF LANDLORD AND TKNANT. employee of the owner cultivating the land on shares as the agent and not as the tenant of the owner cannot dispose of or incumber the crops until its division. In determining whether one is a servant and employee or a tenant, stipulations in the agreement to the effect that the person who is claimed to be a servant was to occupy the premises, to keep it in repair, and that the other party should make advances, are material to show that he was a tenant. They are in fact utterly inconsis- tent with the supposition that he was merely an employee.^^ If, however, the owner of the land has the entire control of the time and services of the occupant the latter is a servant or employee and not a tenant and cannot create any lien upon the crops or productions of the land which will vest any rights in third persons to the prejudice of the owner.^® § 219. The distinction between croppers and tenants. A cropper is a person who is hired by an owner of land to cultivate it. He receives as his compensation a share of the crops. Sev- eral circumstances distinguish such a person from a tenant. In the first place in the case of a cropper, the landlord retains the legal right to the possession and the ownership of the crop. The cropper has no interest whatever in the land or any right to its possession, except so far as he has a right to be on the land in order ,to carry out his agreement.-" A cropper's possession is the possession of a servant. Nor has he any property in his share of the crops until the division is made between him and the owner of the land. Hence, he cannot maintain an action in trespass for an injury to the land, or for damages to the crops before they are divided. Nor can a mere cropper convey an interest in his share of the crops, prior to the division.^^ On the other hand, the relation between a party who cultivates land under an agreement with the owner of the land that they are to divide the crops between them may be that of landlord and ten- ant. If such is the case, the ownership of the crops is in the iswhaley v. Jacobson, 21 S. Car. 12; Adams v. McKesson's Ex., 53 51. Pa. St. 81, 91 Am. Dec. 183; Mc- i»Hnff V. Watkins, 15 S. Car. 83. Neely v. Hart, 10 Ired. (N. Car.) 20 Shoemaker v. Crawford, 82 Law, 63; Harrison v. Ricks, 71 N. Mo. App. 487. Car. 11; Kelly v. Rummerfleld, 117 21 Fry V. Jones, 2 Rawle (Pa.) Wis. 620, 622. WHAT CONTRACTS ARE LEASES. 309 tenant during the terra, and the landlord has no right or title to his share until they are har\-ested and divided. Again, where the occupant is a tenant and not a mere cropper, he has the exclusive possession of the land during the temi; and the landlord's entry- is a trespass. It will readily be seen that any an-angemeut to share crops under which either party owns them until they are actu- ally divided may work to the disadvantage of the other party to the agreement. The tenant who agrees with his landlord to pay the rent in a share of the crops may dispose of them and abscond with the proceeds; while the landlord who, by an agree- ment with a cropper retains the actual and absolute ownership of the crop may oust the cropper and dispose of the crops, leav- ing the other party to the contract to an action for damages. To avoid this difficulty a form of contract which is known as the ' * cultivation of crops on shares, ' ' has been invented in which, one party supplies the land and the other the labor and material for using it, and both parties are, regarded £is tenants in com- mon of the crops until the division is had.-^ By this contract, both parties are protected and either may dispose of, or encum- ber his share, but neither can dispose of the share of the other. It is sometimes difficult to determine whether a person who cul- tivates the land of another on shares is a tenant in common of the crop with the owner or a mere cropper. Much depends upon the wording of the contract between the parties.-^ Each case 22 Smith V. Tankersley, 20 -Ala. N. W. Rep. 701 ; Kamerick v. Cas- 212, 56 Am. Dec. 193; Brown v. tleman, 23 Mo. App. 481; Daniels Coats, 56 Ala. 439; Smith v. Rice, v. Brown, 34 N. H. 454, 69 Am. 56 Ala. 417; Ponder v. Rhea, 32 Dec. 505; Guest v. Opdyck, 31 N. Ark. 435; Rohrer v. Babcock, 126 J. Law, 552; Foote v. Colvin, 3 111. 222, 56 Pac. Rep. 537; Smith Johns. (N. Y.) 216; Harrower v. V. Schultz, 89 Cal. 526, 26 Pac. Heath, 19 Barb. (N. Y.) 331; Rep. 1087; Randall v. Ditch, 123 Dinehart v. "Wilson, 15 Barb. (N.. Iowa, 58, 99 N. W. Rep. 190, 191; Y.) 595; Wilber v. Sisson, 54 N. Walker v. Fitts, 24 Pick. (Mass.) Y. 121; Bowers v. Graves, 8 S. 191; Fiquet v. Allison, 12 Mich. Dak. 385, 66 N. W. Rep. 931; 328, 86 Am. Dec. 54; Strangeway Fowles v. Martin, 76 Vt. 180, 56 V. Eisemman, 68 Minn. 395, 71 N. Atl. Rep. 979. W. Rep. 671; McNeal v. Ryder, 79 =3 Kelly v. Rummerfield, 117 Minn. 152, 81 N. W. Rep. 820; Wis. 620, 622, 94 N. W. 649. Loomis V. O'Neal, 73 Mich. 582, 41 310 LAW OP LANDLORD AND TENANT. must bo decided upon the special tenns of the agreement, takino; into consideration the subject matter and all the circumstances,, the question being always as to the real intention of the parties.-* Generally, an arrangement by which one party furnishes the land and another the labor on an agreement that the crop shall be divided will not be presumed to create the relation of land- lord and tenant in the absence of clear evidence to that effect.-*^ If there is an indication that the parties intend that the occu- pant shall have a right to the possession of the farm and the full power of controlling and using it for farming purposes as though it were his own, the contract is a lease. The mere fact that rent is payable in a share of the crops does not alone show that the agreement is not a lease.-® So, where an occupant of land is to pay rent either in money or a portion of the crops,^^ or in money and a portion of the crops,^^ the relation between, the parties is that of landlord and tenant. The same construc- tion was applied where the occupant agreed to give the owner one half of the income of the farm.^^ The circumstance that the lease contained the terms "lease, demise and let," is a strong fact to show that the instrument is a lease and not a mere cropping contract.^" But a con- tract by which each party is to furnish half the seed and to divide the crops equally and both parties are to reside on the farm though in separate houses makes the parties tenants in common of the crop.^^ On the other hand, the fact that nothing is said as to the duration of llie agreement between the parties is a strong indication that the relation of landlord and tenant does not exist.^- So, too, an express stipulation that the crop is to remain the property of the landlord until it is harvested is 24Moser v. Lower, 48 Mo. 504; 27 Taylor v. Coney, 101 Ga. 655, Johnson v. Hoffman, 53 Mo. 504. 2S S. E. Rep. 974. 2& Ponder v. Rhea, 32 Ark. 435; 2s Bryant v. Pugh, 86 Ga. 525, Brown v. Coats, 56 Ala. 439. 21 S. E. Rep. 927. 20 Strain v. Gardner, 61 Wis. 29 Rowland v. Voechting (Wis.), 174; Foley v. Southwestern Land 91 N. W. Rep. 990. Co., 94 Wis. 329; Steel v. Frick, so Rowland v. Voechting (Wis.), 56 Pa. St. 172; Brown v. .Taquette, 9] N. W. Rep. 990. 94 Pa. St. 113; King v. Bosserman, si Reynolds v. Reynolds, 48 Hun, 13 Super. Ct. 480; McClellan v, 142. Whiney. 65 Vt. 510, 27 Atl. Rep. S2 Moser v. Lomer, 48 Mo. App. 117. 85. WHAT CONTRACTS ARE I^ASES 311 usually conclusive that the occupant or cultivator is a mere cropper.^^ § 220. The ownership of the crop. The phrase "renting on shares" implies that both parties will share equally in the prod- ucts of the land, to compensate the one for his labor and the other for the use of the land. If the occupant of the land is more than a mere cropper or servant of the owner, his right in the crop is usually considered to be vested before division. The parties may expressly provide that the title to the crop shall remain in either of them until division. If the contract is clearly one of landlord and tenant, the general rule applies and title to the crop is in the tenant. But where the owner and occupant are to share the crop it is more difficult to determine. Usually where an agreement is made that one party is to furnish the land and the other is to furnish the seed and the tools for its cultivation, together with the necessary labor, the crop to be divided, the parties will be regarded as tenants in common of the crop, in the absence of an express agreement to the contrarj'.^* It follows from this that where owner and occupant are tenants 33 Mammock v. Creelonore, 48 Ark. 264, 3 S. W. Rep. 180. It is sometimes expressly provided by statute that the title to crops shall rfrmain in the owner of the land where the land is cultivated by a cropper on shares. De Loach v. Delk (Ga. 1904), 47 S. E. Rep. 204; Parker v. Brown (N. C. 1904), 48 S. E. Rep. 657. Where this is the case, a person claiming under the cropper cannot maintain tro- ver or conversion against the owner or against a purchaser from him, nor can he bring tres- pass for an entry on the land. Farrow v. Woley & Jordan (Ala. 1903), 36 So. Rep. 384. 34 Jones V. Durrer, 96 Cal. 95, 30 Pac. Rep. 1027, following Walls v. Preston, 25 Cal. 59, and Smith v. Schultz, 89 Cal. 526, 26 Pac. Rep. 1087; Connell v. Richmond, 55 Conn. 401; Kamerick v. Castle- man, 23 Mo. App. 481; Caswell v. Di£trich, 15 Wend. (N. Y.) 379; Putnam v. Wise, 1 Hill (N. Y.) 234; narrower v. Heath, 19 Barb. (N. Y.) 331; Wilber v. Sisson, 54 N. Y. 121, 53 Barb. (N. Y.) 258; Randall v. Ditch, 123 Iowa, 582, 99 N. W. Rep. 190, 191; Strange- way V. Eisenman, 68 Minn. 395, 71 N. W. 671; Anderson v. Listen, 72 N. W. Rep. 52; Adams v. State, 87 Ala. 89, 6 So. Rep. 270; Mc- Neal V. Ryder, 79 Minn. 152, 81 N. W. Rep. 830; Rohrer v. Bab- cock, 126 Cal. 222, 58 Pac. Rep. 537; Loomis v. O'Neal, 73 Mich. 582, 41 N. W. Rep. 701; Doty v. Heth, 52 Miss. 530, 535; Frost v. Kellogg, 23 Vt. 308; Leach v. Beat- tie, 33 Vt. 195; Sowles v. Martin, 76 Vt. ISO, 56 Atl. Rep. 979; Black V. Golden, 109 Mo. App. 37, 78 S. W. Rep. 301, 302; Bernal v. Hovl- ous, 15 Cal. 544; Putnam v. Wise, 37 Am. Dec. 309. 312 LxVW OF LANDLOED AND TENANT. in common of the crop each has a distinct interest which is not subject to the ownership or control of the other and cannot be in- cumbered hy the other.^^ Either party to the agreement may sell his share by parol.^® A person cultivating land for a share of the crop, may mortgage his interest in the crop before it is divided.^" A direction by the owner to pay the rent to another is an assignment of the owner 's share of the crops. The owner 's share thus assigned cannot be subsequently reached by the levy of an execution against him.^^ And under the rule that the abandonment of work on the farm by the occupant is a breach of the contract, a cropper loses his interest in the crop where by reason of his abandonment or failure to perform his contract the landlord is compelled to enter and cultivate the farm and reap the crop. Wliile ordinarily the parties to the agreement to work land on shares are presumed to be tenants in common of the crop it is competent for them to arrange for another basis of ownership. They may, for example, expressly agree that the crops which are to be planted and raised on the farm by the person cultivating it are to remain the sole property of the owaier of the land until the contract is fully performed, or until a division of the crops provided for in the contract shall have taken place, or until a certain specified date shall arrive, or until some other contingency shall take place. Conditions that the crops raised shall continue to be the property of the owner of the land until they shall be divided, are very frequently met with and no reason can be suggested why such a stipulation is not valid and binding.^^ And the general rule that a tenant under a lease to rent land on shares may assign his lease, or sell or mortgage his 35 stickney V. Stickney, 77 Iowa, Vt. G32; Wentworth v. Miller, 53 699, 42 N. W. Rep. 518. Cal. 9; Lloyd v. Powers, 4 Dak. 3c Muernberger V. Von Der Heidt, 62, 23 N. W. Rep. 492; Moulton 39 111. App. 404. V. Robinson, 27 N. H. 550; Parker 87 Bourland v. McKnlght, 79 v. Matt, 43 App. Div. 338, 60 N. Y. Ark. 427, 96 S. W. Rep. 179. Supp. 295; Consolidated Land, etc., 38 Courtney v. Lyndon, 128 Cal. Co. v. Hawley, 7 S. Dak. 229, 63 35, 60 Pac. Rep. 462. N. W. Rep. 904; Townsend v. Isen- 3» Sanford v. Morline, 51 Neb. berg, 45 Iowa, 670; Gray v. Rob- 728, 71 N. W. Rep. 740, 742; Yates inson (Ariz.), 33 Pac. Rep. 712; V. Kinney, 19 Neb. 275, 27 N. W. Jordan v. Bryan, 103 N. Car. 59, 9 Rep. 132; Sumnierville v. Stock- S. E. Rep. 135; Taylor v. Dono- ton M. Co.. 1 Cal. 1904. 76 Pac. hue (Wis. 1905), 103 N. W. Rep.' Rep. 243; Esdon v. Colburn, 29 1099. WHAT CONTRACTS AEB LEASES 313 share of the crops which he has raised on the demised premises without the consent of his lessor unless expressly forbidden by the lease does not apply to such a case until the moment arrives for a division of the crops for until that moment the title of the tenant is incomplete and he may do nothing which would inter- fere with the complete ownership of the landlord.*" So, under a provision that the landlord is to have the possession of the crops until complete performance by the tenant the tenant has no in- terest in the crop which can be attached until he has fully per- formed his contract and the crop is ready for division.*^ On the other hand, in every case where by agreement or under the statute the share of the landlord in the crop is not vested until the time has arrived for its division he cannot maintain any action against the tenant either for liis rent or for a share of the crop/^ § 221. The duties and the rights of the landlord and tenant. There is an implied covenant on the part of the tenant who cul- tivates land on shares to cultivate it in a farmerlike manner.*^ lie must also give the fences and other structures on the prop- erty, ordinary care. He cannot charge for the storage of the share of the crop belonging to the landlord unless the latter un- reasonably delays the moving of it.** A landlord who objects to the manner in which a tenant on shares is cultivating the land should do so promptly. An objection after the crop has been reaped amounts to nothing.*^ Usually, where the occupant is a servant or cropper only there may be circumstances which indi- cate that the owner hired the particular occupant because of his ability and skill. The owner is entitled to have the farm culti- vated by the person he has selected and the latter cannot assign his contract without the consent of the owner. ^^ If the occupant without cause abandons the land, the landlord may re-enter and complete the cultivation of the crop. He may then sell the crop *o Sanford v. Modine, 71 N. W. ** Evers v. Shumacker, 59 Mo. Rep. 740, 51 Neb. 728. App. 454. *i Pelton V. Draper, 61 Vt. 364, *5 Young v. Gay, 41 La. Ann. 17 Atl. Rep. 494. 758, 6 So. Rep. 608. 42 Jordan v. Bryan, 103 N. Car. ■*« Meyer v. Livesley (Oreg.), 78 59, 9 S. E. Rep. 135. Pac. Rep. 670, where the occupant 43 Cammack v. Rogers (Tex. was a tenant. Civ. App.), 74 S. W. Rep. 945 314 LAW OF LANDLORD AND TENANT. and deduct his expenses from tlie cropper's share.^^ But the landlord has no right as long as the tenant is in possession to enter on the land where is appears that the relation between the parties is that of landlord and tenant.*^ If being a tenant the cultivator abandons the land the landlord may re-enter. But whether the tenant abandons the land is in all cases a question of fact. The act of the tenant in merely removing the furniture from the farmhouse is not in itself an abandonment which will allow the o^vner to take possession.*^ The obligation of the oc- cupant of land cultivated on shares which binds him to cultivate the farm in a husbandlike manner cannot be escaped from be- cause, by reason of the failure of the crops, it becomes difficult and expensive to reap a certain portion of them.^'* The tenant cannot abandon the land for that reason, but he may abandon the land and refuse to reap the crop if he can show that the land- lord has prevented him from doing so.^^ Thus, where the owner of land cultivated on shares becomes very abusive and insulting to the tenant the occupant may abandon the land and the con- duct of the owner is a breach of the implied covenant of quiet enjoyment. Under such circumstances the abandonment of the land by the tenant does not deprive him of his right to a share of the crops.^- And a landlord who has prevented his tenant from gathering the crops to a share of which he was entitled, cannot recover against the tenant the expense of gathering his own share.^^ The tenant while in possession after the end of his term is not liable for trespass where the purpose of liis possession, was the reaping of a crop.^* 47 Graves v. Walter (Minn. 398. Where a tenant plants a crop 1904), 101 N. W. Rep. 297. and then voluntarily abandons ■*8Kamerick v. Castleman, 23 the farm he can no longer claim Mo. App. 481. any rights under the contract. 49 Hough V. Brown, 104 Mich. Having repudiated the contract, 109, 62 N. W. Rep. 143. he cannot claim his share of the !■•(> .Johnson v. Bryant, 61 Ark. crops. He might abandon the 312, 32 S. W. Rep. 1081. farm and throw up his contract 51 Parker v. Mott, 43 App. Div. the next day after sowing the 338, 60 N. Y. Supp. 295. wheat. On his abandonment, the ^2 Reynolds v. Reynolds, 48 Hun, wheat became a part of the land. (N. Y.) 142. It might be otherwise where he B3 Garrett v. .Jennings, 19 Ky. S. sows a crop, sells to a purchaser Rep. 1712, 44 S. W. Rep. 382. in good faith and then abandons. 54Toles V. Meddaugh, 106 Mich. Chandler v. Thurston, 10 Pick. WHAT CONTRACTS ABB LEASES. 315 § 222. The remedies of the parties. The remedies of the parties to an agreement to cultivate land on shares depend upon the question whether the title to the crops is in both of them or whether it is in the landlord only. The tenant or cropper who has faithfully performed his contract^ is entitled to his share of the crops when it is reaped and ready for market and the landlord who converts it and refuses to pay over any part of it to the tenant may be sued in conversion.^^ So, where the tenant has mortgaged his interest in the crop and conferred au- thority upon the mortgagee to take possession, the latter may replevin from the landlord the tenant's share of the crop.^® If, according to the contract the parties are tenants in common to the crop either may sue the other in conversion before the end of the term.^^ So, also, where an occupant cultivating land on shares, converts the whole crop the landlord may sue in an action of assumpsit and recover the reasonable value of the use of the premises.^^ The landlord cannot maintain an action for conver- sion or a similar action against a tenant while his possession of the crop is only such as is necessary for its cultivation, and the tenant does not assert any exclusive ownership or right to the possession of the whole crop.^® The tenant who is a tenant in common of the crop so far as third persons are concerned has the same right to recover for injuries to the crop as he would have if he owned the whole of it. He may recover for damages to his share of the crop resulting from the action of the third person, though his landlord may have a lien for supplies and advances on his share. His right to recover the dama^-es is not defeated by the fact that he is bound to pay these debts out of his share of the proceeds of the crop.''" It is within the power and jurisdic- tion of a court of cquty to adjust the rights of a landlord and 205; Kiplinger v. Green, 28 N. W. 80 S. W. Rep. 664; Black v. Gol- Rep. 121, 61 Mich. 340; Carpenter den, 104 Mo. App. 37, 78 S. W. V. Jones, 63 111. 517. Rep. 301, 302. 55 Northness v. Hillstead, 87 ss Pearce v. Pearce, 184 111. 289, Minn. 304, 91 N. W. Rep. 1112; 56 N. E. Rep. 311, affirming 83 111. Parker v. Brown, 136 N. Car. 280, App. 77. 48 S. E. Rep. 657; Marlowe v. Rog- »» Olson v. Ausdal, 13 So. Dak. ers, 102 Ala. 510, 14 So. Rep. 790. 23, 82 N. W. Rep. 89. 56 Alexander v. Zeigler (Miss.), eo Parker v. Hale (Tex. 1903), 36 So. 536. 78 S. W. Rep. 555 57Fagan v. Vogt (Tex. 1904), 316 LAW OP LANDLORD AND TENANT tenant who are tenants in common of farm products where the farm has been rented on shares. If the tenant disposes of the produce of the farm he holds the share of the landlord as a trustee and he must account accordingly. The fact that by an. express agreement the landlord is to have a lien upon the entire product of the farm for advances and for his share does not alter the relations of the parties. Any title which the landlord might have under such a stipulation is equitable and for security only and if the landlord assumes to sell the products he must ac- count to the tenant as an owner of an equal share. No matter which party disposes of the products of the farm an accounting may be had in equity because of the relation of trust which exists between them. If both parties have sold to a third person hav- ing knowledge of their mutual rights and obligations and the third person pays the whole proceeds to either, he is a proper party to an action brought by either of the tenants in common against the other for an accounting and he may be liable in case he has caused a loss to either by paying the wrong person."^ § 223. Relation of landlord and servant not presumed be- tween vendor and vendee. One who purchases land is not, in the absence of a stipulation to that effect, entitled to possession until the date which is designated in the contract upon which a conveyance is to be made. If with the consent of the vendor, the vendee goes into possession before the date for a conveyance arrives he acquires no right to possession thereby and the vendor may recover possession by an ejectment after demand. The entry of the vendee upon the land under the contract to purchase before conveyance and with the consent of the vendor does not «i Sowles V. Martin, 76 Vt. 180, but before it is harvested, suc- 56 All. Rep. 979. The owner may, ceeds to his rights. He may re- when he can show that there is cover from the owner of the land imminent danger of the cropper in a quantum meruit the reason- or tenant converting the crops to able value of the cropper's share his own use, apply to a court of of the crop. Parker v. Brown (N. equity for a partition and the ap- Car. 1904), 48 S. E. Rep. 657. A pointment of a receiver during the landlord who is entitled to an at- pendency of the action. Baugh- tnchment for rent may attach man v. Reed, 75 Cal. 319, 17 Pac. crops in case his rent is payable Rep. 222. The personal repre- in a share of the crops. Harmon sfntative of a cropper or tenant v. Payton (Kan. 1903), 74 Pac. who dies after the crop is grown, Rep. 618 WHAT CONTRACTS ABB LEASEa 317 make the vendee a tenant of the vendor or create the relation of landlord and tenant between the vendor and vendee, except perhaps from the date when there is a default in the payment of the purchase money. The vendee enters and holds for him- self and his title is not subordinate to that of the vendor nor can the latter recover rent from him or for the use and occupa- tion of the premises.®^ From these principles it follows that where one is let in possession of land under an oral contract of sale, he is not liable to the vendor for rent or for damages for use and occupation until the contract is repudiated because such liability only arises on a contract express or implied and pre- supposes the relation of landlord and tenant. The fact alone that one takes possession as a vendee disproves any implied con- tract to pay rent, or to pay for use and occupation. If the con- tract had been void for any reason the vendee would then be- come a tenant at will or at sufferance and liable for use and oc- cupation. It is perfectly proper for a vendor whose land is sold on credit to stipulate with the vendee, that the relation of landlord and tenant shall exist and that the vendee shall enter with such an understanding. Until the vendee shall pay for the land he is a tenant and the vendor may treat him as such upon a failure to pay his instalments. There is nothing oppressive in this so long as the rent is applied to the payment of the pur- chase money. Such contracts are common where land is sold on credit, and, as they are just and fair to all parties, will not 82 Bull V. Ellis, 1 Stew. & P. Ralston, 31 Barb. (N. Y.) 286; (Ala.) 294; Tucker v. Adams, 52 Stone v. Sprague, 20^ Barb. (N. Ala. 254; Smith v. Maberry, 61 Y.) 509; Little v. Pearson, 7 Pick. Ark. 375, 33 S. W. Rep. 1068; Van- (Mass.) 301, 302; De Pere Co. v. derheuvel v. Starrs, 3 Conn. 303; Raynor, 65 Wis. 271, 22 N. W. Rep. Redden v. Barker, 4 Har. (Del.) 761, 27 N. W. Rep. 155; Carpenter 179; Brown v. Persons, 48 Ga. 60; v. United States, 17 Wall. (U. S.) Miles V. Elkin, 10 Ind. 329, 330; 489, 21 Law. ed. 680; Watkins v. Kratemeyer v. Brink, 17 Ind. 509, Holman, 16 Pet. (U. S.) 26, 10 511; Fall v. Hazelrigg, 45 Ind. Law. ed. 873; Bradstreet v. Hunt- 576, 15 Am. Rep. 278; Gould v. ington, 5 Pet. (U. S.) 402; Willson Thompson, 4 Met. (Mass.) 224, v. Watkins, 3 Pet. (U. S.) 43; 228; Lapham v. Norton, 71 Me. Blight v. Rochester, 7 Wheat U. 83, 88; Coffman v. Huck, 19 Mo. S.) 453. Contra, Kirk v. Taylor's 435; Kenada v. Gardner, 3 Barb. Heirs, 8 B. Mon. (Ky.) 62; Pro- (N. Y.) 5-89; Smith v. Stewart, 6 prietors of Township No. 6 v. Mo- John. (N. Y.) 46; Sylvester v. Farland. 12 Mass. 325. 318 LAW OF LANDLORD AND TENANT be interfered with by the courts.*'^ On the failure of the vendee to pay rent his rights are forfeited and he will lose what he has paid as rent unless some provision to the contrary is made. He has no interest after his default which can be sold under an execution.*^* § 224. The default or the refusal of either party to perform. The question whether a vendee in possession is a tenant of the vendor and thus is liable for rent or in assumpsit for use and occupation, almost always arises where either by a refusal of the vendee to pay or by a refusal of the vendor to convey the contract is never performed. The majority of the cases in de- termining that there is no liability for rent on the vendee do not stop to inquire whether the failure to perform the contract is the fault of the vendor or the vendee. If the contract of sale is voluntarily rescinded by the parties, either waives all the de- fault on the part of the other.®^ If the vendor is in default in conveying when the date arrives when under the contract he is bound to give a deed, he cannot complain that the vendee has had the use of the land gratis with his consent. In justice and fairness to the vendee, the loss of the land through the action of the vendor in refusing to consummate the contract ought to estop the vendor from demanding compensation for its use aside from the rule of law which determines that the relation of landlord and tenant never existed between the parties in the absence of an express contract to that effect.®'' Thus if, after a vendee has occupied the land sold him, the vendor is unable to convey because he cannot give a good title, or cannot give one which is free from incumbrances, the vendee is under no obli- «3Crinkley v. Edgerton, 113 N. Huck, 24 Mo. 496; Sylvester v. Car. 444, 449, 18 S. E. Rep. 669. Ralston, 31 Barb. (N. Y.) 286; 64 Appeal of Chrystie, 85 Pa. St. Way v. Raymond, 16 Vt. 371, 376; 463. Smith v. Stewart, 6 Johns. (N. Y.) 65 Mariner v. Burton, 4 Har. 46; Stacy v. Vermont Cent. R. Co., (Del.) 69. 32 Vl. 551, 553; Hough v. Birge, 66 Bell V. Ellis' Heirs, 1 Stew. 11 Vt. 190. Assumpsit for use and & P. (Ala.) 294; Vanderheuvel v. occupation cannot be maintained Storrs, 3 Conn. 203; Garvin v. (Jones v. Tipton, 2 Dana (Ky.) Jennorson, 20 Kan. 371, 372; .Jones 295; Stacy v. Vermont Central R. V. Tipton, 2 Dana (Ky.) 295; Lit- Co., 32 Vt. 551, 553, though the tie V. Pearson, 7 Pick. (Mass.) vendee alone is ajt fault. McNair 301, 19 Am. Dec. 289; Coffman v. v. Schwartz, 16 111. 24, 25. WHAT CONTRACTS ARE LEASES. 319 gation to pay for .use and occupation prior thereto."^ The ven- dee should immediately surrender possession on the rescission or abandonment of the contract of sale, for, if he shall continue in possession after a rescission, or after the vendor has defaulted in the performance of the contract, he will be liable as a tenant to the vendor from the date of the default.®* Some authorities have held that a vendee who goes into possession under a con- tract of sale will be liable to pay the rent or for the use and occupation of the premises, though there be no express agree- ment to that effect, where he subsequently fails to pay the pur- chase money. He is a tenant at will and, as the use of the prem- ises has been beneficial to him, and the vendor is ready and will- ing to perform^ in order to do justice between the parties, the law, it is said, will imply a promise on the part of the vendee to pay what is right in case he is unable to pay the purchase money when it is due.®^ The parties may stipulate in the con- tract of sale that in case the vendee shall default in the pay- ment of the whole or of any part of the purchase money aftor he has been in possession^ he shall thereafter be regarded as a tenant and that what he has paid, if anything, shall be regarded as rent.^" Upon the vendee's default, but not before, he be- comes a tenant of the vendor and the contract of sale is then transformed at once into a lease, the vendor thereafter having all the rights of a landlord as regards the vendee.'^ § 225. The express agreement of the vendee to pay rent. It is always competent for the parties to a contract for the sale of land to provide that the vendee shall enter before a conveyance 67 Garvin v. Jennerson, 20 Kan. 64 Am. Dec. 10.5, where the vendor 371; Bardsley's Appeal (Pa. 1887), failed to tender a proper deed. 10 Atl. Rep. 39. The parties may, «» Patterson v. Stoddard, 47 Me. upon the rescission of the contract 355, 356, 74 Am. Dec. 490; Fowke of sale, agree that the vendee v. Beck, 1 Speers (S. C.) 291. shall pay rent as a tenant for his 7o ish v. McRae. 48 Ark. 413, 3 prior occupation of the premises. S. W. Rep. 440 (agreement to pay Such a contract is based on a good "customary rent" on the vendee's consideration, and gives the ven- default). See, also. Hill v. Sidie, dor all the right of a landlord, in- 116 Wis. 602, 93 N. W. Rep. 446. eluding a lien against the vendee. ti Block v. Smith, 61 Ark. 266, Powell V. Hadden's Ex'rs, 21 Ala. 32 S. W. Rep. 1070; Oxford v. Ford, 745. 67 Ga. 362. See Foster v. Good- 68 Dwlght V. Cutler, 3 Mich. 566, win, 82 Ala. 384, 2 So. Rep. 895 320 LAW OF LANDLORD AND TENANT to ]iim and shall hold as a tenant of the vendor. Thus, the rela- tion of landlord and tenant exists where the vendee agrees to pay the vendor a sum of money for rent for the use of the prem- ises before conveyance, if he shall default in paying the pur- chase price.'^^ The same construction is given to a contract of sale which provides that if either of the parties do not consum- mate the sale, the money which has been paid on the purchase shall be regarded as rent/^ If there is an express agreement by the vendee in possession to pay rent until he takes title,'^* or to pay rent until a certain amount is paid by the vendee, upon Avhich the land is to be conveyed by the vendor, the relation of the parties is that of landlord and tenant.''^ The vendee in possession at once becomes the tenant of the vendor where he fails to pay the first instalment of the price, where there is a provision in the contract of sale that on a default he shall pay rent.''® But there is no presumption in the absence of a clear understanding to that effect that upon the default of the ven- dee in possession to pay rent, he shall thereupon become a ten- ant of the vendor. The fact that a note which is given for a portion of the purchase money contains a statement that it is for rent will not alone create any presumption that the relation of landlord and tenant existed between the parties.''^ But the fact that a contract of sale speaks of a part of the consideration to be paid by the vendee in possession as rent does not neces- sarily transform it into a lease.''^ If the vendee is let into pos- session, under an a^eement by him to pay the purchase money at a future date, and to pay rent in the meantime, the rent is obviously more in the nature of interest on the purchase money than rent and, as the relation of landlord and tenant does not 72 Foster v. Goodwin, 82 Ala. 456, 458. See Nestal v. Schmid, 384, 2 So. Rep. 895. Compare 39 N. J. Law, 686. contra. Green v. Deitrich, 114 111. 70 Block v. Smith, 61 Ark. 266, G36, 642, 3 N. E. Rep. 800, in which 32 S. W. Rep. 1070; Chambers v. the language of the contract was Irish (Iowa, 1906), 109 N. W. Rep. very peculiar. 787. 73 Barrett v. Johnson, 2 Ind. 7? Quetermous t. Hatfield, 54 App. 25, 27 N. E. Rep. 983. Ark. 16. 14 S. W. Rep. 1096; Wal- 74 Jackson v. Niven, 10 Johns. ters v. Myer & Co., 39 Ark. 560. (N. Y.) 335. 78 Smith v. Mabory, 61 Ark. 515, 7r. Nobles V. McCarty, CI Miss. 33 S. W. Rep. 10G8. WHAT CONTRACTS ARE LEi^ES. 321 exist, the party to whom it is due cannot collect it by any of the usual methods for collecting rent."^ So, also, an agreement between the vendor and the vendee that the purchase money, which is to be paid in instalments, may be collected by the ven- dor, as they become due, by distress or otherwise, does not alone create the relation of landlord and tenant.^" A vendee who goes into possession with the consent of the vendor under an agree- ment with the latter that he will pay him interest on the pur- chase money at so much per annum while he is in possession be- fore conveyance and a fortion after conveyance does not by that fact alone become a yearly tenant. He may, however, be regarded as a tenant at will and on the rescission of the con- tract because he fails to pay the interest or the purchase money he may be ousted on an entry or demand of possession. For the payment of interest under such circumstances, though yearly, is not for the use of the land but for the forbearance of the vendor in waiting for the money. But where a yearly payment other than interest is made which is to go to the vendor as rent in case the contract of sale is not consummated, but which is to apply to the purchase price if the vendee takes a conveyance, a tenancy from year to year is created.*"^ If the facts proved are such that, taken with the express language of the contract, it ap- pears that the relation between the vendee in possession and his vendor is that of landlord and tenant, the vendor has the same remedies against his vendee as a landlord will have against a ten- ant. The vendor may then enforce a landlord 's statutory lien for rent on the crops grown by his vendee while he was in possession of the premises.^- Under such circumstances, the lien of the vendor for rent is superior to that of the chattel mortgagee or 79 Walters v. Myer & Co., 39 Ark. "so much as the one-half of all 560, 567; Bissell v. Erwin's Heirs, crops on said land shall amount 10 La. 524; Quetermous v. Hat- to." Moen v. Lillestal, 5 N. D. 327, field, 54 Ark. 16, 14 S. W. Rep. 65 N. W. Rep. 694. 1096. 81 Saunders v. Musgrave, 6 B. «oSackettv. Barnum, 22 Wend. & C. 524; Parton v. Smith, 66 (N. Y.) 605. The same ruling was Iowa, 75; Eaton v. Hunt, 20 Ky. had where the vendee in posses- Law Rep. 860. 47 S. W. Rep. 763. sion of land which sold on long 82 Waite v. Corbin, 109 Ala. 154, credit was bound to pay each year, 19 So. Rep. 505. in addition to the purchase price, 21 322 LAW OF LANDLORD AND TENANT. judgment creditor of a vendee who is in possession of the land a^ a tenant.*^ § 226. The entry of vendee under a parol agreement to pur- chase. A purchaser under a void parol contract to purchase who is put in possession of the premises by the vendor is not liable for the rent until his right to enforce the contract shall have been denied by the vendor. So long as he holds posses- sion with the consent of the vendor, his right to the profits and rent will be presumed.^* A parol contract of sale under which the vendee has entered may be valid as a lease though unen- forcible as a contract to convey.^^ The general rule in all cases of an entry by the vendee under a parol contract to sell land is that the relation of landlord and tenant does not exist between him and the vendor. The vendee in possession is not therefore estopped to dispute the vendor's title.^*^ nor is he on the other hand, entitled as a tenant to a notice to quit.^"^ § 227. The vendor of land continuing in possession after his conveyance of the title. The mere fact taken alone that the vendor retains the possession of the land after he has conveyed title to the vendee, does not, it has been held, create by implica- tion, the relationship of landlord and tenant between the parties to the contract of sale so as to give the vendee the right to re- cover from the vendor for the use and occupation of the land.*'^ There are, however, many cases which hold to the contrary and the weight of the authorities is directly opposed to this rule. So, it has been held several times that the remaining in the pos- session of the land by the vendor after the conveyance of the title by him alone raises a presumption that he continues in posses- sion as a tenant of the vendee.^ However, this presumption is 83 Reddick v. Hutchinson, 94 Ga. sea Chilton v. Niblett, 3 Humph. 675, 21 S. E. Rep. 712. (Tenn.) 404. 84 Fox V. Longley, 1 A. K. Marsh. «7 Greenup v. Veruer, 16 111. 26, (Ky.) 388; Kay v. Curd, 6 B. Mon. 27; Tew v. Jones, 13 M. & W. 12. (Ky.) 100. ssprichard v. Tabor, 104 Ga. BoVick V. Ayres, 56 Miss. 670, 64, 30 S. E. Rep. 415; Sherebourne in which the vendee expressly v. .Tones, 20 Me. 70; Larrabee v. agreed to pay rent if he should Lumbert, 34 Me. 79, 80, 81; Hyatt not pay the purchase money in v Wood, 4 Johns. (N. Y.) 150, 4 one year. Am. Dec. 258; Wood v. Hyatt, 4 8« Hough V. Dumas, 4 Dev. & Johns. (N. Y.) 313; Hodges y. Bat. L. (N. C.) 328. Gates, 9 Vt. 17 WHAT CONTRACTS ARE LEASES. 323 always rebuttable by proof of facts which show or tend to show an intention that the relation of landlord and tenant shall not exist between the parties. Thus, for example, the vendor con- tinuing in possession after his conveyance will be permitted to prove that his deed, though it was an absolute conveyance upon its face, was in fact given to secure his debt; that the creditor or grantee in the deed had refused to give a bond to re-convey the property, and that the debt had been paid and that hence there should be a re-conveyance.*' 83 Larrabee v. Lumbert, 34 Me. 79, 81; McCormick r. Herndon, 26 "Wis. 449. CHAPTER X. THE FOPJM AND EXECUTION OF LEASES. 228. The scope of this chapter. 229. The formal requisites of a lease 230. General rules of the law of contracts as to signatures. 231. The signature to a lease by the tenant only. 232. The signature by the lessor only. 233. The signature to a lease affixed by a surety. 234. The necessity for and the form of seals. 235. The attestation of leases. 236. The necessity for an acknowledgment. 237. The description of the premises. 238. The description of the parties. 239. The date of the lease. 240. The date of the commencement of the term, 241. The necessity of the delivery of the lease. 242. The acceptance of a lease. 243. The necessity for the entry of the tenant. 244. The date upon which the lease expires. 245. The reversion in the lessor. 246. The approval of the lease by the attorneys for the parties. 247. The responsibility of the tenant. 248. A failure to read the lease. 249. A mistake in the execution of a lease. 250. The usual and customary covenants and provisions. 251. Leases executed in duplicate and counterpart. 252. The mode of proving a written lease. 253. Term expiring on the happening of a contingent event. 254. Leases terminable on the sale of the premises. 255. The option of the lessee to terminate the lease. 256. Measure of the damages for a failure to execute a lease. 257. The effect of the statute of frauds on leases. 258. Contracts concerning an interest in land. 259. Extensions and renewals of leases. 260. Leases by parol which are void under the statute. 261. The character of the writing. 262. Effect of performances in taking the lease out of the statute. 263. The recording of leases. 264. The construction of the statutes requiring the record of leases. 265. The effect of recording a lease upon the rights of a subsequent lessee. FORM AND EXECUTION OF LEASES. 325 § 266. The effect of the record as notice. 267. As against the creditors of the lessor and persons claiming under him. 268. The effect of recording a lease which is not required to be re- corded. § 228. Scope of tnis chapter. In this chapter it is proposed to treat of the execution of a formally written lease. Under the heading of execution will be discussed the signing, sealing, attestation, delivery and acceptance of the writing. Inasmuch as a lease in writing is merely a contract in writing for the use of the parties concerned, the rules regulating the execution of written contracts are usually to be applied where the execution of a written lease is under consideration. The case therefore that applies to the execution of written contracts generally may safely be consulted and cited in all questions involving the form and execution of written leases. ^lany such cases have been cited in the notes which are appended to the text of this chap- ter, § 229. The formal requisites of a lease. There are certain elements which must exist in every case in order that a writing shall constitute a valid lease. First, there must be a lessor who is competent to make a lease, that is to say, the lessor must have the same capacity to contract in writing which is usually re- quired in other cases. The capacity of the lessor to make a lease will be determined by the same rules which are recognized in the case of all other written contracts. Second, there must be a lessee w^ho is capable to contract with the lessor. The same rules which are used to determine the capacity of the lessor will be implied to determine the capacity of the lessee. Third, there must be a subject matter which is capable of being leased. Usually, the subject of a lease is land or other things, and arti- cles of property of a real or personal nature. Fmirih, if, by statute, the lease is required to be by deed, the execution, de- livery, etc., of the deed must conform to the rules which regulate the execution and delivery of deeds, that is to say, the writing must be sealed; must contain a definite and certain description of the parties and of the things demised; must be sealed and delivered, and, in certain cases, it must be acknowledged and recorded. Fifth, where a term of years is created by a lease, the term must have a fixed commencement and must be definite 326 LAW OP LANDLORD AND TENANT. in length. This need not be expressly stated in the writing but is permitted to be ascertained by parol evidence. Thus, as is subsequently explained, the term may be for a fixed number of years or may be for a term not stated in years, but determinable by the happening of some contingent event. Sixth, at the com- mon law where the lease was for a freehold, livery of seizin was required and where the lease was for a term of years, an attorn- ment was indispensable but these ceremonies have been abolished for many years, and. in the United States at least, are not re- quisite in the case of leases. Seventh, there must usually be an acceptance of the term by the lessee. § 230. General rules of the law of contracts as to signatures. Aside from the special topic of leases, it is the rule in the case of a contract which is not required to be signed by the party to be charged under the statute of frauds, that the mere fact that a party to the contract has not signed it, does not exempt him from liability under it where he has received a benefit from it.^ The case is much stronger against a party where his name appears in the body of the contract, as being a party to it. Even if his name does not appear in the contract, if it appears that he knew of its terms and acted in accordance therewith he will be liable. The circumstance that the contract is in his writing, together with the appearance of his name in it is al- most conclusive against him.^ These rules of the general law of contract as sustained by the cases which are cited in the notes are all of value in connection with the construction of leases. Thus, a lease made in writing which is not required by the stat- ute of frauds to be in writing, is binding on a party to it, though he has not signed it, if he shall, being the landlord, receive the rent under it, or being the tenant, he shall enter upon the occupation of the premises.^ For it is a general rule which is 1 Henry v. Allen, 49 Ark. 122, Claflin v. Hoover, 20 Mo. App. 5S3; 4 S. W. Rep. 201; Kieth v. Kerr, Hinsaman v. Hinsaman, 52 N. C. 17 Ind. 284; Smith v. Morse, 20 La. f-lO. Ann. 220; Jeffry v. Underwood, 1 2 Xoe v.' Hodges, 22 Tenn. 162; Ark. 108; Pennington v. Baehr, 48 Young v. Paul, 10 N. J. Eq. 401, Cal. 565; Curds v. Forts, 9 Ky. 43; 64 Am. Dec. 456. Basham v. Commonwealth, 76 Ky. 3 Magoon v. Minnesota Transfer 36; Gable v. Brooks, 48 Md. 108; Packing Co., 34 Minn. 434, 26 N. Rundell v. La Fkur, 88 Mass. 480; W. Rep. 235. Dodd V. Butler, 7 Mo. App. 583; FORM AND EXECUTION OF LEASES. 327 of particular value in connection with leases, that a contract which is intended to be signed by both parties but is only signed by one of them becomes in all respects binding upon the other who accepts it by his conduct in deriving a benefit from it with knowledge of its existence.* The requirement of the statute of frauds that a lease shall be signed by the party to be charged, is satisfied if the lessee's or lessor's name writ- ten by himself, appears in any part of the lease, particularly in the clause containing the usual description of the parties.* Wbere a lease is executed by two parties, and it is retained by the lessor to have it also executed by his wife, who subsequently refuses to sign it, and a third person in ignorance of the lease, purchases the farm as a result of which the unexecuted lease was destroyed, the lease itself is void for lack of mutuality." § 231. The signature to a lease by the tenant only. "Where the statute of frauds requires the lease to be in writing, a lease signed by the lessor only, if accepted and possession taken under it by the lessee against the lessor, is good.'^ A lease signed by the tenant only, if not accepted or ratified by the landlord in writing, is not binding on the tenant and the landlord cannot sue and recover upon the covenant to pay rent therein contained.* If the * Reedy v. Smith, 42 Cal. 245; accept it without execution by the Bell V. ByersoD, 11 Iowa, 233, 77 wife; neither could the lessor Am. Dec. 142; Dows v. Morse, 62 have been compelled to deliver it — Iowa, 231, 17 N. W. Rep. 495; Fair- it must be mutually binding on banks v. Meyers, 98 Ind. 92; Young both parties or neither. The V. Ward, 33 Me. 359; GriflSn v. lessor had a perfect right, when Bristol, 39 Minn. 456, 40 N. W. his wife refused to execute the Rep. 523; Berner v. Bagnell, 20 lease to cancel and destroy the im- Mo. App. 543; Dutch v. Mead, 36 strument — if the lease had been N. Y. Super. Ct. 427; Reynolds v. a valid and subsisting lease, com- Welsh, 8 N. Y. St. Rep. 404; plete by delivery, without joinder Grove v. Hodges, 55 Pa. St. 504; of the wife, the destruction of it Campbell v. McFaddin, 71 Tex. 28, by the lessor could not destroy the 9 S. W. 138. estate or term." B Traylor v. Cabanne, 8 Mo. App. 7 Carnegie Natural Gas Co. v. 131, 133; but see Combs v. Mid- Philadelphia Co., 158 Pa. St. 317, land Trans. Co., 58 Mo. App. 112, 27 Atl. Rep. 951, 954; Bergner v. 114 (Cotts. Missouri R. S. 1889, Palethrop, 2 W. N. C. (Pa.) 297, § 6371). 23 Pitts. L. J. 103, 8 Leg. Gaz. 35. 8 Tatham v. Lewis, 65 Pa. St. 65, s Jennings v. McComb, 112, Pa. 27 L. I. 77. "The lease was clearly St. 518, 4 Atl. Rep. 812, 17 W. N. not binding on the lessee. He C. 466, 34 Pitts. L. J. 75. could not have been compelled to 328 LAW OF LxVNDLORD AND TENANT. landlord, knowing that a person is in possession of tlie premises under the lease which is signed by the tenant and not by the landlord, accepts rent from him as such he cannot thereafter evade his responsibility as a landlord by showing that the lease was not signed by him. If a landlord permits another person to enter and occupy as a tenant, premises owned by him and re- ceives rent from the occupant as a tenant under a lease signed only by the tenant but which has been brought to the knowledge of the landlord, he is estopped to impeach the lease on the ground that he has not signed it. On the other hand, a lease which is not signed by the landlord is binding on the lessee who goes into possession under it.®^ And the landlord may then re- cover from him the rent which he has agreed to pay. The lease having been executed by the parties, the statute of frauds does not apply to such a case.^^ So, where a lessee occupies the prem- ises under a written lease and pays rent for several months un- der the instrument which is signed by himself and not by his lessor, which purports to be a lease for one year, the lease is valid as a parol lease for one year,®^ and the tenant is a tenant for one year, though the rent is payable monthly. § 232. The signature by the lessor only. In some cases it has been held that a lease or any other contract which is required by law to be signed by the parties is void if signed by the lessor only. A lease signed by the lessor, but not by the lessee and not accepted nor ratified by him in writing, is not valid as against the lessee where it comes within the provision of the statute of frauds, and the lessee cannot be sued in covenant thereon.* The mutuality of obligation, however, which is lacking where a lessee has failed to sign a lease may be supplied by his conduct in re- lation thereto. This is the outcome of the principle of estoppel by which a party who has voluntarily derived benefits from a contract which was not legally binding on him is denied the right subsequently to repudiate the contract. For a lessee by saBaragiano v. Villani, tl7 111. Barnes, 39 Neb. 103, 57 N. W. Rep. App.. 372; Evans v. Conklin, 71 990. Hun, 536, 24 N. Y. Supp. 1081; sc Nicholls v. Barnes, 39 Neb. Mayer v. Moller, 1 Hilt. (N. Y.) 103, 57 N. W. Rep. 990. 491; Kauer v. Leahy, 15 Pa. Co. o .Jennings v. McComb, 112 Pa. Ct. Rep. 243. ' St. 518, 4 Atl. Rep. 812, 17 W. N. «b Lagerfelt v. McKie, 100 Ala. C. 466, 34 Pitts. L. J. 65. 430, 14 So. Rep. 281; Nicholls v. FORM AND EXECUTION OF LEASES, 329 accepting a written lease, particularly one which is under the seal of the lessor, and entering into possession thereunder, be- comes liable, if not for rent,^** then for the value of the use and occupation of the property for such period as he is in possession. And apparently the lessee, by the acceptance of the lease and possession under it, also becomes liable to the lessor for all the covenants which would have been binding upon him had he signed the lease." Whether the tenant is liable for the rent on his covenant, or whether he is liable for the use and occupation of the premises is, in modern practice at least, of very little im- portance. The principal question is one of the election of rem- edies. If the landlord sues for rent or for damages for the breach of any covenant alleging a written lease and the proof shows a lease signed by the landlord and not by the tenant, the landlord may be non-suited. So, it has been held that an action on the covenant to pay rent will not lie against the tenant on a lease alleged to be in writing but which is sealed and subscribed by the landlord only.^^ g^^ ^i^q current of the modem decisions is certainly against this proposition and most of the courts would undoubtedly hold in an action brought by the landlord against the tenant on a written lease, that the latter was estopped to al- lege or prove that he was not bound by the lease because he had not signed it, if it appears that he entered on the premises and paid rent according to its terms. For a lease executed by the lessor is not rendered invalid merely because it was not signed by the lessee, from the fact that it contained independent cove- nants apparently intended to be assented to by the lessee's sign- 10 Pepper's Adm'r v. Harper, 20 Super. Ct. 4 ; Round Lake Ass'n v. Ky. Law Rep. 837, 47 S. W. Rep. Kellogg, 141 N. Y. 348, 36 N. E. 620. Rep. 326, 327; Filton v. Hamilton iiTrapnall v. Merrick, 21 Ark. City, 6 Nev. 196; Carnegie N. G. 503; Baltimore & O. R. R. Co. v. Co. v. Philadelphia Co., 158 Pa. St. Winslow, 18 App. D. C. 438; Fields 317, 325, 27 Atl. Rep. 951; Braman V. Brown, 188 III. Ill, 58 N. E. v. Dodge, 100 Me. 143, 60 Atl. Ren. Rep. 977; Henderson v. Virden 799; Bergner v. Palethorp, 2 W. N. Coal Co., 78 111. App. 437; McFar- C. 297; 23 Pitts. L. J. 103, 8 Leg. lane v. Williams, 107 111. 33, 43; Gaz. 35; Jenning v. McComb, 112 Doxey Estate v. Service (Ind. Pa. St. 518, 4 Atl. Rep. 812; Tray- App. 1902) 65 N. E. Rep. 757; Lib- lor v. Cabanne, 8 Mo. App. 131. bey V. Staples, 39 Me. 161, 166; 12 Trustees of Section 16 v. Spen- Rice V. Brown, 81 Me. 56, 16 Atl. cer, 7 Ohio, 149. Rep. 334; Zink v. Bohm, 3 N. Y. 330 LAW OF LANDLORD AND TENANT. ing the lease and the landlord may waive his right to have the signature of the lessee to tlie lease and the fact that he put it on record would justify a presumption that he had done so.^^ The owner of real estate may transfer his land by a lease exe- cuted by him alone, and the lease will be effectual, although it contains covenants for the execution of the lessee by signing and sealing but which are not in fact signed by the latter. The les- sor may waive the covenant in the part of the lessee.^* § 233. The signature to a lease affixed by a surety. A person who signs a lease as surety for the lessee is not liable jointly with the lessee in an action to recover rent or to enforce a cove- nant of the lessee. He undertakes to pay rent or damages only in case the lessee does not and his liability is not contemporane- ous with that of the lessee but arises only when the liability of the lessee has been fixed. The contracts of the two are separate and distinct and the general rules and principles of sureties are applicable including that section of the statute of frauds which requires the consideration in an agreement of a surety to be ex- 13 Libbey v. Staples, 39 Me. 166- 168. 14 Libbey v. Staples, 39 Me. 166; Braman v. Dodge, 100 Me. 143, 60 Atl. Rep. 799. In Jennings v. McComb, 112 Pa. St. 518, 4 Atl. Rep. 812, the law is said to be that a plaintiff may sustain an action of covenant on a contract though it be so defectively executed that he could not be sued in covenant on the lease. The basis of this principle is said to be the general rule that a party who has not signed a contract makes himself liable by accepting it when it is signed by the other party. But this does not necessarily mean that both parties to the contract have the same remedy against the other. The one who has signed may be liable on a covenant. The one who has not signed can only be liablo in assumi)sit. In the case of a lease not signed by the lessor but signed by the lessee it was held that the latter could not be sued on the covenant to pay rent though he had entered into possession because no term had been created to which the cove- nan^t to pay rent is annexed and during which it operates. There being no term there can be no covenant to pay rent. If there be no lease there is no covenant. See^ also, Pitman v. Woodbury, 3 Exch. 11. A lessee is not released from the obligation of his lease because he does not seal it where the lessor signed and sealed it, or the lessee signed it without sealing it. Such a contract is equivalent to two instruments, one containing cove- sants or promises under seal, and the other contaiming promises not under seal, each being a sufficient consideration for the other, each would be valid. Rice v. Brown, 81 Me. 56, 62, 16 AU. Rep. 334. FORM AND EXECUTION OP LEASES. 331 pressed. No consideration being expressed, tlie contract is void and the person who signed as surety is bound neither as prin- cipal nor as surety.^^ § 234. The necessity for and the form of seals. By the an- cient common law an estate of freehold could be conveyed only by livery of seizin or by deed, meaning thereby a writing under seal. Livery of seizin having been abolished both in England and in America, the sole remaining method of conveying a free- hold interest in land is therefore by deed. This rule of the com- mon law as to the conveyance of freehold estates has been af- firmed by statute in many of the states. Leases for years being regarded as mere chattels, are valid when in writing though not under seal unless sealing is required by the terms of some stat- ute.^® For in a few of the states, leases in excess of a specified number of years must be under seal.^^ At the common law, where a seal is required, it must be of wax or wafer or some other adhesive substance which is capable of receiving an im- pression.^* By statute in many, if not in all the states, this re- quirement of the common law has been abrogated so that it has come to be the almost universal rule that a stamp or impression made upon the instrument itself, or a scroll or circle of ink, or certain words or letters w^ritten therein is taken and regarded as a seal.^^ In two of the states where such statutes have been 15 Evans v. Conklin, 71 Hun, 41; Stoddard v. Whiting, 46 N. Y. 536, 539, 24 N. Y. Supp. 1081; 627. 633. Decker v. Gaylord, 8 Hun, 111; i7 Seven years in Massachusetts Gould V. Maring, 28 Barb. (N. Y.) and Maryland, five years in Vir- 444; see, also, DeRidder v. Scher- ginia, two years in Florida, one merhorn, 10 Barb. (N. Y.) 638; year in Delaware, Rhode Islana Allen V. Fosgate, 11 How. Pr. 218. and Vermont. In Wisconsin a 16 Crescent City Wharf & Light- seal is unnecessary to a lease and erage Co. v. Simpson, 77 Cal. 286, does not raise the same above the 15 Pac. Rep. 426; Lake v. Camp- dignity of an instrument not un- bell, 18 111. 106; Borggard v. Gale, der seal. Woolsey v. Henke, 125 107 111. App. 128; De Loge's Adm'r Wis. 134, 103 N. W. Rep. 267. V. Hall, 31 Mo. 473; Jones v. is Beardsley v. Knight, 4 Vt. 471, Barnes, 45 Mo. App. 590; Gay v. 479; Warren v. Lynch, 5 Johns. Ihm, 3 Mo. App. 588; Den v. John- (N. Y.) 237, 239; Bank v. Gray, son. 15 N. J. Law, 116; Fougera 2 Hill (N. Y.) 227. V. Cohn, 2 City Ct. Rep. (N. Y.) is Bohannous v. Lewis, 3 Mon. 253; O'Brien v. Smith, 13 N. Y. (Ky.) 376; Trasher v. Everhart, Supp. 408, 410, 34 N. Y. St. Rep. 3 Gill & J. (Md.) 234, 246; Hen- 332 LAW OF LANDLORD .VND TEN.VNT. enacted it must be proved by the language of the writing that the party meant the scroll or writing to be his seal.-" As a general rule at the present time, where from the attestation clause it appears to have beien the intent and purpose of the parties to execute a sealed instrument, anything adhering to the paper or any words written upon it at or near the place where the seal is ordinarily affixed which can with a reason- ably wide stretch of the imagination, be regarded as such, will at least prima facie be preisumed to be a seal and to have been affixed with an intention to seal the writing. And where several persons execute a writing it is not necessary that each should have a separate seal, though two or more may bind them- selves severally by one seal if it shall appear that such was their intention. ^^ § 235. The attestation of leases. In the absence of an ex- press statutoiy provision a written lease, though executed under seal, is not required to be attested by subscribing witnesses. Hence a lease, though under seal, is not invalid in any way be- dee V. Pinkerton, 14 Allen (Mass.) 381; Royal Bank v. Railroad & Depot Co., 100 Mass. 444, 445; Bates V. Boston & N. Y. R. R. Co., 10 Allen (Mass.) 251; Relph v. Gist, 4 McCord (S. C.) 267; Alex- ander V. Jameson, 5 Binn. (Pa.) 238, 243, 244; Bradfield v. M'Cor- mick, 3 Blackf. (Ind.) 161, 162. 20 Austin V. Whitlock, 1 Munf. (Va.) 487; Lee v. Adkins, 1 Minor (Ala.) 187. 21 Bohannous v. Lewis, 3 T. B. Mon. (Ky.) 376, 378; MacKay v. Bloodgood, 9 Johns. (N. Y.) 285, 287; Yarborough v. Monday, 2 Dev. (S. C.) 493; Townsend v. Hubbard, 4 Hill (N. Y.) 351; Uni- versity of Vermont v. Joslyn, 21 Vt. 52; Ball v. Dunsterville, 4 T. R. 313. By the English statute 8 & 9 Vict., c. 106. S. 3, a lease re- quired by law to be in writing, is now required to be by deed and otherwise it is void. In constru- ing the statute, it has been held that though the lease being not by deed is void, yet it may be valid as an agreement indicating the premises upon which the ten- ant holds as tenant from year to year. Tress v. Savage, 4 El. & Bl. 36, 2 C. L. R. 1315, 23 L. J. Q. B. 339, 18 Jur. 6S0, 2 W. R. 564; Hayne v. Cummings, 16 C. B. (N. S.) 421, 10 Jur. (N. S.) 773, 10 L. T. 341; Tidey v. Mollett, 16 C. B. (N. S.) 298, 33 L. J. C. P. 235, 10 Jur. (N. S.) 800, 10 L. T. 380, 12 W. R. 802; Bond v. Rosling, 1 B. & S. 371, 30 L. J. Q. B. 227, 8 Jur. (N. S.) 78, 4 L. T. 442, 9 W. R. 746. And the statute does not prevent the instrument, which as containing words of present de- mise and not being under seal is void as a lease from being en- forced in equity. Parker v. Tas- well, 2 De G. & J. 559, 27 L. J. Ch. 812, 4 Jur. (N. S.) 1006, 6 W. R. 608. FORM AND EXECUTION OF LEASES. 333 cause it is not attested and it may be enforced either at law or in equity on proof of its execution, by any relevant evidence. The purpose of the attestation is merely to provide a simple method of proof, and if the parties wish to dispense with this method of proof they may do so.-^ If a statute requires that an instrument conveying land must be attested by two witnesses a lease attested by one witness only, conveys no interest and is not entitled to record. If it is recorded without proper attesta- tion the record confers no validity upon it.^^ In some of the states it is expressly provided by statute that a deed to be valid must be attested by at least two witnessess.^* Hence, in these states a lease executed by deed would be invalid unless attested according to statute. A statute which provided that a convey- ance of freehold interest in land must be attested does not re- quire that leases must be attested. The construction which has just been stated in regard to the attestation of deeds will be applicable to the attestation of leases. So, also, the competency of attesting witnesses to leases is to be determined by the same rules which apply to thd competency of witnesses to deeds. Thus, as the grantee in a deed is not a competent witness to the deed, so by analogy, a. lessee is not a competent attesting witness to the lessor's execution of a lease. -^ Usually, disinterested per- sons are required as attesting witnesses.^' The wife of a lessee 22Wiswall V. Ross, 4 Port 72; Markley v. Swartzlander, 8 (Ala.) 321; Cocke v. Brogan, 5 Watts & S. 172; Crockett v. Ark. 693; Jackson v. Allen, 30 Campbell, 21 Tenn. 411; Mauley Ark. 110; Reinliart v. Miller, 22 v. Zeighler, 23 Tex. 88; Quinney Ga. 402, 68 Am. Dec. 506; John- v. Denny, 18 Wis. 485; Leinen- son V. Jones, 87 Ga. 85, 13 S. E. kugel v. Kehl, 73 Wis. 238, 40 Rep. 261; Dundy v. Chambers, N. W. Rep. 683. 23 111. 369; Fitzhugh v. Croghan, 23 Langmede v. Weaver, 65 Ohio 25 Ky. 429, 19 Am. Dec. 139; St. 17. 33, 60 N. E. Rep. 992. Dole V. Thurlow, 53 Mass. 157, 24 French v. French, 3 N. H. 234; 166; Godfroy v. Disprow (Mich.) Stone v. Ashley, 13 N. H. 38; Pat- Walk. Ch. 260; Price v. Haynes, terson's Lessee v. Pease, 5 Ohio, 37 Mich. 487; Pearson v. Davis, 190; Hendricks v. Huffmeyer 41 Neb. 608, 59 N. W. Rep. 885; (Tex), 27 S. W. 777; Day v. Forsaith v. Clark, 21 N. H. 409; Adams, 42 Vt. 510. Van Soligen v. Town of Harri- 25 Coleman v. State. 79 Ala. 49. son, 39 N. J. Law, 51; Wood v. 26 winsted Saving Bank & Build- Chapin, 13 N. Y. 509; Long v. ing Ass'n v. Spencer, 26 Conn. 195. Ramsay (Pa.) 1 Serg. & R. (Pa.) 334 LAW OF LANDLORD AND TENANT. ©r of a lessor would not be a competent witness to attest the lease. ^'^ § 236. The necessity for an acknowledgment. As between the parties to it, and aside from any question of record, an un- acknowledged lease is absolutely valid in the absence of an ex- press statutory provision to the contrary.^* So, generally a lease, though it is unacknowledged, is good as against subsequent purchasers, lessees or incumbrancers with actual knowledge of it.^® If, however, a statute expressly requires that a lease for a term of years shall be acknowledged or attested, a lease not thus acknowledged or attested is void.^" Hence, where it is ex- 2T Corbett v. Norcross, 35 N. H. 99. Where there are no attesting witnesses to a lease the execution may be shown either by proof by some person who saw the party sign it or by proving the party's handwriting. If the instrument purports to have been attested, the witnesses must be called or their absence accounted for. Though at- testation may be dispensed with, it is proper to add that, as it affords such an easy and effectual mode of proof as may enable a lessee to supply the want of an acknowl- edgment and attain the recording or registration of his lease, where and acknowledgment is lacking, and adds so much to the credit of a lease or deed, every conveyancer of common prudence, and every lessee and grantee in the exercise of due care, will perceive the pro- priety of having his lease or deed attested. Dole v. Thurlow, 53 Mass. 157, 163, which cites Long V. Ramsay, 1 S. & R. (Pa.) 72; Garrett v. Lister, 1 Lev. 25; Swire V. Bell, 5 T. R. 371. 28 Knowles v. Murphy, 107 Cal. 107, 40 Pac. Rep. Ill; Lake v. Campbell, 18 111. 106; Wiholni v. Mertz, 4 G. Greene (Iowa) 54, 55; Simpson V. Mundoo, 3 Kan. 172; Cable V. Cable, 146 Pa. St. 451, 23 Atl. Rep. 223, 29 W. N. C. 284; Clark V. Gellison, 20 Me. 18; Bla- zier V. Johnson, 11 Neb. 404, 9 N. W. Rep. 543; Weaver v. Coumbe, 15 Neb. 167, 171, 17 N. W. Rep. S57; Stone v. Stone, 1 R. I. 425; Town of Lemington v. Stevens, 48 Vt. 38; Buswell v. Marshall, 51 Vt. 87; McGlanflin v. Holman, 1 Wash. St. 239, 24 Pac. Rep. 439; Schulte V. Schering, 2 Wash. St. 127, 26 Pac. Rep. 78. 29 Bass Lake Co. v. HoUenbeck, 5 Ohio Cir. Dec. 242. 30 A lease or license of land for the production of oil and natural gas is within a statute requiring certain leases of an estate or in- terest in real property to be signed by a lessor, and to be acknowl- edged by him in the presence of two witnesses, who are to sub- scribe it as attesting witnesses. The fact that taking natural gas from land was a new use of land arising since the statute was passed is not material. Such an instrument being defectively exe- cuted is therefore not a lease at all. It is totally void and cannot be given any validity for a portion of the term. Placing it on record gives the lessee no rights under it. FORM AND EXECUTION OF LEASES. 335 pressly provided by a statute that instruments in writing- con- veying interests in land shall be attested or acknowledged by the persons making the same, an unattested or unacknowledged lease is void even as between the parties to it. Such a writing conveys no interest to the lessee nor can the lessor enforce any covenant therein as against the lessee.^^ A statute which pro- vides that any deed or other instrument in writing shall be acknowledged by the maker in the presence of witnesses, in- cludes a lease which is void and conveys nothing if it is not acknowledged.'^ In Washington, by statute a lease in writing, if unacknowledged, is valid for one year only. The part per- formance by the lessee of a void unacknowledged lease for a longer period, does not validate it.^^ Though a lease is defective under a statute providing that it shall be acknowledged, yet the landlord may recover rent if the tenant has entered and had possession.^* And where a statute provides that no estate in the real property of a married woman passes by her grant or by any instrument unless the same is acknowledged by her, her lease must be acknowledged.^^ A lease for life of the estate of a married woman signed by her, but not acknowledged as re- quired by statute, is void.'® So a deed by which a husband and his wife lease her interest in land is void, unless it is acknowl- edged by her where the statute expressly requires that the wife The record is not notice to third as the lessors shall continue in parties. Langmede v. Weaver, 65 ownership does not come within a Ohio St. 17, 33. statute requiring the acknowledg- 31 Richardson v. Bates, 8 Ohio ment of an assignment of a lease St. 257, 261; Johnson's Lessee v. for a longer time than one year, Haines, 2 Ohio, 55; Abbott v. Bos- since the lessor may remain in worth, 36 Ohio St. 605 (holding possession less than a year. Rick- that the lessee acquires only an ard v, Dana (Vt.), 52 Atl. Rep. equitable title). See Anderson v. 113. Critcher, 11 Gill & J. (Md.) 450, ss Carlton v. Williams. 77 Cal. 37 Am. Dec. 72, and Stone v. 89, 19 Pac. Rep. 185, 11 Am. St. Stone, 1 R. I. 425, 428. Rep. 243. In Illinois under the 32 Richardson v. Bates, 8 Ohio statute, it has been held that a St. 257, 261; Ackinson v. Dailey, 1 lease executed by a married wo- Hammond (Ohio) 367. man, though unacknowledged, is 33 Dorman v. Plowman, 41 binding on her. Bradshaw v. At- Wash. 477, 83 Pac. Rep. 322. kins, 110 111. 323. 34 Budgmans v. Wells, 13 Ohio. 88 Worthington's Lessee T. 43; Newstedt v. Scarborough. 13 Young, 6 Ohio, 313, 335. Ohio Dec. 327. A lease for so long 336 LAW OF LANDLORD AND TENANT. shall acknowledge it.'^ Under the statute providing for tlie re- cording and registering of deeds, it is usually absolutely essential that the paper should be properly acknowledged before it can be recorded. Where this is the case, the record of an unacknowl- edged deed or other instrument, or of one defectively acknowl- edged, does not make the deed or instrument notice to subsequent purchasers, and hence the recording confers no priority upon the party claiming rights under the instrument.'* A stat- ute which merely provides that conveyances of land must be acknowledged in order to be valid does not affect a lease, for the term "land" does not comprehend chattel interests as leases for years. Such leases while they are interests in land are dis- tinct from it and collateral to it.^^ § 237. The description of the premises. It is important and in fact in most instances indispensable that the premises leased should be properly described in apt words and clear terms so as to be easy of identification. If the description is vague and indefinite or if the premises are not described with such a reasonable degree of certainty that they are capable of identi- fication, the lease may be void.*" Thus, it seems a description of the land leased by metes and bounds, but not containing lan- guage indicating the township, range, county, or state in which it is located is void for uncertainty and the lessee cannot be 37 George v. Goldsby, 23 Ala. (Vt.) 235; Cox v. Wayt, 26 W. Va. 326. 807. 3« Haskill V. Sevier, 25 Ark. 152; ss See Stone v. Stone, 1 R. I. 425, Herndon v. Kimball, 7 Ga. 432, 50 428. Am. Dec. 406; Wickersham v. 4o Dixon v. Finnegan, 182 Mo. Zinc Co., 18 Kan. 481, 2"6 Am. Rep. Ill, 81 S. W. Rep. 449, 451; Ding- 784; Graves v. Graves, 6 Gray, man v. Kelley, 7 Ind. 717; Reed v. 291; Work v. Harper, 24 Miss. Lewis, 74 Ind. 433, 438; Bailey v. 517; Heelan v. Hoagland, 10 Neb. Wbite, 41 N. H. 337; Goodsell v. 511, 7 N. W. Rep. 2S2; Langmede Rutland-Canadian R. Co., 75 Vt. V. Weaver, 65 Ohio St. 17, 33, 60 375, 56 Atl. Rep. 7; Bingham v. N. E. Rep. 992, 996; Betz v. Sny- Honeyman, 32 Oreg. 129, 51 Pac. der, 48 Ohio St. 492, 28 N. E. Rep. Rep. 735; Coppinger v. Armstrong, 234; McKean and Elk Land Co. 5 111. App. 637; Hay v. Cumber- V. Mitchell, 35 Pa. St. 269, 78 Am. land, 25 Barb. (N. Y.) 594; Patti- Dec. 335; Cannon v. Demming, 3 son v. Hull, 9 Cow. (N. Y.) 747; S. D. 421, 53 N. W. Rep. 863; ?lois- Proctor v. Pool, 4 Dev. (N. C.) ington V. Hoisington, 2 Aiken 370. FORM AND EXECUTION OF LEASES. 337 held for rent where he has never gone into possession.'*^ AAliat will constitute such an uncertainty in the description of the premises as will invalidate the lease, depends usually on the languap-e and circumstances of each case. Parol evidence is received under the general rules to identify the premises which are the subject-matter of the lease. A reference in the descrip- tion to the premises as having been used for a particular busi- ness purpose or as having been occupied by the lessee or other person is usually sufficient to make the description certain with the aid of parol evidence.*^ If the lessee enters into possession under the lease, he is liable for rent for the period of his occu- pation though the location of the premises does not appear in the lease,*^ or the description is in some respects insufficient.** Generally if the description affords means or suggestions of fact by which, with the invocation and aid of parol evidence, the premises may be identified, it is sufficiently certain, though in minor details it be erroneous or inconsistent.*^ If, in the description there is sufficient to enable one to ascertain with reasonable certainty what premises the parties to the instru- ment intended to lease, it will be ordinarily a sufficient descrip- tion and that part of the description which is false may be dis- regarded. For it is ordinarily unwise to describe with undue par- ticularity and minute detail, the demised premises by name, or boundary', or past or present ownership, use or occupation for where many facts are enumerated, false statements are apt to creep in or confusion to arise. Hence, the question may occur to what extent all these statements must be consistent with one another or to what extent general words of description are to give way to particular words.*^ A lease of "part of the third « Bingham v. Honeyman, 32 Bulkley v. Devine, 127 111. 406, 20 Oreg. 129, 51 Pac. Rep. 735. N. E. Rep. 16, 3 L. R. A. 330. <2 Andrew v. Carlilo, 4 Colo. ^5 Vose v. Bradstreet, 27 Me. App. 336, 36 Pac. Rep. 66. 156, 172; Worthington v. Hylyer, 43 Whipple V. Shewalter, 91 Ind. 4 Mass. 196, 205; Campbell v. 114, 119, also holding it proper to Johnson, 44 Mo. 247; Eggliston v. admit parol evidence to identify Bradford, 10 Ohio, 312, 316; Put- the premises; Lush v. Druse, 4 nam v. Bond, 100 Mass. 58; House Wend. rN. Y.) 313. v. Jackson, 24 Oreg. 29, 32 Pac. 4'* Hoyle V. Bush, 14 Mo. App. Rep. 1027. 408; Pierce v. Minturn, 1 Cal. 470; 46 where land is leased in gross 22 338 LAW OF LANDLORD AND TENANT. story and attic over same" in an identified building is not so in- definite that it will be void where the tenant went into possession and occupied a part of the third story marked off by a partition.*'^ So the description of the property demised as ' ' 314 acres out of the southern part of " a section is sufficient to convey the interest in the south half of the survey.*^ A reservation or exception of a there can be no question that the land was less in quantity than is mentioned in the lease. Leavitt v. Murray, Wright (Ohio), 707. In Dixon V. Finnegan, 182 Mo. Ill, 81 S. W. Rep. 44^, 451, a descrip- tion as "160 acres of land lying in M. county, Missouri, and situ- ated in sections 3 and 4, in town- ship 55, range 8," was held too indefinite and the lease was void. In Bingham v. Honeyman, 32 Oreg. 129, 51 Pac. Rep. 735, the court said "to give effect to a lease of real property it must de- scribe the subject matter of the demise with reasonable certainty, either by express words or by ref- erence to something by which its location can be ascertained, and the want of such a description will render the lease inoperative. No action for rent can be main- tained on such a lease where there Is no entry by the tenant. In this case the only points named in the description were the boundary lines of certain claims and low- water marlc, the township range, county and state being omitted with nothing in the instrument to show where the claims were lo- cated. And though there is a ref- erence to low-water mark there Is no reference to any stream, lake or other body of water. If the claims had been designated as be- ing in a certain county or locality the description might have been sufficient. But as it stands the de- scription is clearly insufficient un- der the principle that the test for determining the sufficiency of a description is whether the prop- erty can be identified with reason- able certainty by a competent sur- vey or from tlie description given. A lease of land "beginning 80 yards easterly of the southwest part of my farm" was held void in Goodsell v. Rutland-Canadian R. Co., 75 Vt. 375, 56 Atl. Rep. 7. In this case the court took proof of extrinsic circumstances and the lessee having taken possession of land which he supposed was in- cluded in the lease, the court laid down the rule that under the cir- cumstances of the case his pos- session was limited to the part actually occupied. 47 Appleton V. O'Donnell, 173 Ma:ss. 398, 53 N. E. Rep. 882. 48 Santa Rosa Irr. Co. v. Pecos River Irr. Co. (Tex. Civ. App. 1906), 92 S. W. Rep. 1014. In the case of Crabtree v. Miller, 194 Mass. 123, 80 N. E. Rep. 225, the following clause descriptive of the demised house was construed: "Buildings numbered 625 to 631, inclusive, together with the base- ment under said premises, mean- ing thereby the entire buildings containing stores and all floors over said stores, meaning thereby all the real estate I now own on W. street, excepting the building known as the Park Theater." In this case the landlord also owned FORM AND EXECUTION OP LEASES. 339 certain number of acres out of the total number contained in a farm, does not render the lease void for uncertainty because the acres accepted are not specified in it. The right of selection be- longs to the lessor though he is bound not to exercise it arbitra- rily so as to interfere with the beneficial use or enjoyment of the balance of the farm by the tenant.*^ The careful and cer- tain description of the premises demised is absolutely indispen- sable, not only for the purpose of identifying the premises, but also because of the rule that nothing passes by a lease except what is expressly described in it, or what is absolutely necessary to it. But the rule that the premises shall be described with cer- tainty does not prevent a description which may have to be made certain by the use of parol evidence. Thus, a description of the property leased as "being the building now or lately occupied by A," or "the premises known as A farm," particularly if the locality as the to^wn or city is designated in which the premises are located, is sufficiently certain because such a description, though vague furnishes facts by which the premises may be as- certained with certainty. This is a very familiar rule in the several adjacent lots upon which there were a hotel and theatre with covered passage between the two. Over the passageway and lobby of the theatre were rooms which were used as rooms in the hotel. There were also other rooms In the theatre which were used in connection with the hotel. The passageway was also used as an exit from the theatre. The court in construing a lease of the hotel by the above description held that the tenant acquired no right in the court except to use it as an appurtenance to the hotel. *9 Jenkins v. Green, 27 Beav. 437, 28 L. J. Ch. 817, 5 Jur. (N. S.) 304, 7 W. R. 304. A description of the premises as "Zeringue's Landing under Nine Mile Point" is sufficient where this name by common use has come to desig- nate a particular place. Wood v. Sala y Fabrigas, 105 La. 1, 29 So. Rep. 367. Thus a lease of the Jackson Ranch, situated in Sau- vies Island, and with a reference to deeds from A. to B. in which the premises had been conveyed together with a statement of the quantity of land is sufficient. House V. Jackson, 24 Oreg. 89, 32 Pac. Rep. 1027. A description which bounds the leased premises by a line "commencing at low- water mark at the lower mouth of Big Creek" and running thence, etc., and back to the "starting point" is sufficient. Fraser v. State, 112 Ga. 13, 37 S. E. Rep. 114. On the other hand, a de- scription "beginning 80 rods easterly of the southwest part of my farm and extending northerly to the north line of land owned by me" renders the lease void for un- certainty. Goodsell V. Rutland- Canadian R. Co., 75 Vt. 375, 66 Atl. Rep. 7. 340 LAW OF LANDLORD AND TENANT. construction of written instruments. The practice is to admit parol evidence to show the former or present occupancy of the premises, or to show the name by which they were known and when these facts are ascertained the description becomes certain. So, a description of the premises demised as certain premises conveyed to the lessor by a person named is good whether the deed of conveyance is referred to in the lease or not. If the deed is referred to it becomes relevant by this reference, and is in theoiy a part of the lease. Such descriptions are not, however, advisable, and should, whenever possible, be avoided, as they have a certain element of uncertainty about them which, under some circumstances it may be impossible to remove. Thus, for example, the description of premises as having been occupied by a certain person located in a certain town or village may be ambiguous when it is ascertained that the person named occu- pied or occupies two separate dwellings in the same town. So, where premises are described as the farm or building which * ' was conveyed to the lessor by A " and located in a certain town and there are several premises conveyed by A there is a latent ambiguity which renders the description very doubtful. Where a lease is made of a farm "now in the possession of A," no more will pass than that portion of the farm which A was in actual possession of when the lease was made and if any part of the farm was reserved in A's lease, it will not pass to the new lessee though it is not reserved in the lease made to him though such reservation was not actually intended by the parties.^" § 238. The description of the parties. The rule of the law of contracts that the parties to the contract must be certain or ascertainable is applicable to written leases. The general rules of law relating to the parties to a written contract require that they should be either expressly named or indicated in such a way that their identity can be ascertained. Hence, if the par- tics to a written contract do not appear designated in tlie instru- ment itself, and if there is nothing in the transaction which shows who they are, the writing is void.'^^ Hence, good practice re- quires the names of the parties to the lease to be stated correctly and filled in the body of the instrument, but a mistake in the fo Bartlott v. Wright, Cro. Eliz. Mayo v. Chenewoth, 1 111. (Breese) 299. 200; Brown v. Gilman, 13 Mass 61 Webster v. Ela, 5 N. 11. 540; 158; Ball v. Allen, 15 Mass. 433. FORM AND EXECUTION OP LEASES. 341 name, whether of the lessor or of the lessee does not invalidate the lease if the parties can be ascertained either from the other elements of the description or from parol evidence.^- So, a mistake in the name of a party, whether of an individual or a corporation, will not invalidate the lease.^^ And even omitting the name of the lessor from the granting clause of the lease may be disregarded if it can be ascertained who he is.^* A misde- scription of the lessee or lessor in a lease where neither party is misled thereby does not render the instrument invalid. Thus the word ' ' incorporated ' ' inserted after the names of the lessors who were in fact partners in business, does not in any manner affect the binding character of the lease, where the lessors in signing the lease signed as partners and not as a corporation. Under such circumstances, the lessee would be absolutely protected in paying the rent to the lessors as though they were a firm and iu taking receipts from them in that capucity.^^ A contract which firm would be valid though only one person constituted the would include a lease, obtained in good faith in the name of the firm.^^ The omission from the lease of the individual names of the members of the two firms w*ho are named in the lease as lessor and lessee is not material nor are they released from their individual liability as the partners may by a subsequent ratifi- cation make the lease binding on them to the same extent as though their names were written in it.^' Hence, it follows that a party whose name was intended to be in the instrument but which was omitted from it may, by his subsequent conduct ia accepting benefits of it, become liable as a party to it. But on the other hand, a person whose name is not in the body of the lease as a party is not personally liable thereon though he signed the lease and acknowledged it.^^ Again where a lease was 52 Lyon V. Kain, 36 111. 362; si Schulte v. Schering, 2 Wash. Montanye v. Wallahan, 84 111. 355; St. 127, 26 Pac. Rep. 78. Medway Cotton Co. v. Adams, 10 ss Julicher v. Connelly, 102 N. Mass. 360; Dodd v. Bartholomew, Y. Supp. 620. 44 Ohio St. 171, 5 N. E. Rep. 866; se in re Pelican Ins. Co., 47 La. In re Pelican Co., 47 La. Ann. 935, Ann. 935, 17 So. Rep. 427. 17 So. Rep. 427; Games v. Stiles, »" Golding v. Brennan, 183 Mass. 14 Pet. (U. S.) 322. 286. 67 N. E. Rep. 239. 53 McCarthy v. Noble, 5 N. Y. ss Barusdall r. Boley, 119 Fed. 380; Hacket v. Marmet Co., 8 U. S. Rep. 191, 195. App. 150, 52 Fed. Rep. 268, 273, 3 C. C. A. 76. 342 LAW OF LANDLORD AND TENANT. sigrned by a person whose name was not on the lease at all nor even in the attestation clause, he was held not to be liable for the rent as a lessee though if he had accepted the benefits con- ferred by the lease he would unquestionably be precluded from denying his liability by showing that his name was signed to the lease.^^ Inasmuch as the law recognizes only one christian name, the insertion or omission of a middle name of a party is immaterial.^" Finally, it may be said that if there is nothing in the language of the lease or provable from the circumstances of the case which will indicate who is mentioned by the imper- fectly expressed name, the lease may be declared void for un- certainty.^^ . § 239. The date of the lease. At a common law, that is to say, in the absence of any statute requiring a written contract to be dated, an instrument in writing including a deed was valid though the date of its execution was omitted from it.®^ So, also, the omission of a date from the acknowledgment which is at- 59 Evans v. Conklin, 24 N. Y. Siipp. 1081, 71 Hun, 536, 54 N. Y. St. Rep. 915. For the general rule of the law of contracts under which the signing of a contract by one not named therein It ren- ders him liable. Kendall v. Ken- dall, 7 Me. 171; Staples v. Wheeler, 38 Me. 372; Clarke v. Rawson, 2 Denio (N. Y.) 135; Thompson v. Goble, 16 Pac. Rep. 713. Contra, Lancaster v. Rob- erts, 144 111. 213, 33 N. E. Rep. 27; Evans v. Conklin, 71 Hun, 536, 21 N. Y. Supp. 1081, 54 N. Y. St. Rep. 915. «o Games v. Stiles, 14 Pet. (U. S.) 322; Lyons v. Kain, 36 111. 362. 91 Webster v. Ela, 5 N. H. 540; Marshall v. White's Creek Turn- pike Co.. 7 Cold. (Tenn.) 252. In r.arnsdall v. Boloy, 119 Fed. Rep. 191, it was held that a lease signed by the lessor but which did con- tain his name in the body of it was void and created no terra for no one can be bound by a leas^ who is not a party to it and no one can be a party to a lease who is not mentioned and referred therein, citing Adams v. Medsker, 25 W. Va. 127; Bell v. Allen's Adm'r, 3 Munf. (Va.) 118. 62 Seldonridge v. Connoble, 32 Ind. 375; Pierce v. Richardson, 37 N. H. 306; Dean v. De Lezardi, 24 Miss. 424; Fash v. Blake, 44 111. 302 (lease); Thompson v. Thompson, 9 Ind. 323; Lee v. Mas- sachusetts Ins. Co., 6 Mass. 208; Banning v. Eades, 6 Minn. 402; .Jackson v. Schoonmaker, 2 Johns. .(N. Y.) 230, 234 (lease); Center V. Morrison, 31 Barb. (N. Y.) 155; Giles V. Bourne, 6 M. & S. 73; Sol- oman v. Evans, 3 McCord (S. C.) 274; Simmons v. Trumbo, 9 W. Va. 358; Fournier v. Cyr, 64 Me. 32; Supreme Council Catholic Knights of America v. Fidelity & Ca.sualty Co., 63 Fed. Rep. 48, ll C. C. A. 90, 22 U. S. App. 439. FORM AND EXECUTION OF LEASES, 343 taohecl to a lease may be disregarded and will not invalidate the writing nor authorize a recording officer to refuse to place it on record providing the date can be supplied by parol evidence.®^ A lease which has no date in it and which also fails to state when the lessee goes into possession or which bears a date on which it is impossible that it should have been executed, as for example, where it is dated the 30th day of February, will oper- ate from its delivery.®^^ All written instruments will be pre- sumed to have been executed and written upon the day of the date which appears in them, though this presumption may be re- butted by showing that that date is an error. "^^^ Parol evidence is also receivable to show that a date inserted in a lease or other writing is erroneous. ^"^ § 240. The date of the commencement of the term. It is al- ways advisable to specify explicitly in the lease the date upon which the term is to begin. If no term is mentioned in the lease and is not ascertainable by constniing, the lease will be held void for uncertainty.^* If, from the lease or by construction, it 63 Rackleff V. Norton, 19 Me. 274; Wickes v. Caulk, 5 H. & H. (Md.) 36; Huxley v. Harrold, 62 Mo. 516; Lea v. Polk, etc., Co., 21 How. (U. S.) 493. C3a 4 Coke Litt. 46 B; Keys v. Dearborn, 12 N. H. 52; Trustees, etc., V. Robinson, Wright (Ohio) 436; Jackson v. Schoonmaker, 2 Johns, (N. Y.) 231; Church v. Gil- man, 15 Wend. (N. Y.) 656. 63b Overton v. Matthews, 35 Ark. 147, 37 Am. Rep. 9; Inglish V. Breneman, 5 Ark. 377, 41 Am. Dec. 96; Le May v. Williams, 32 Ark. 166; Billing v. Stark, 15 Fla. 297; Hamilton v. Wood, 70 Ind. 306; Bank of Commonwealth v. McChord, 4 Dana (Ky.) 191; Lisle V. Rogers, 18 B. Mon. (Ky.) 528; Cutts V. York, etc., Co., 18 Me. 190; Harrison v. Phillips Acad- emy, 12 Mass. 456; Smith v. Por- ter, 10 Gray (Mass.) 66; Gardener V. Webber, 17 Pick. (Mass.) 407; Aubuchon v. McKnight, 1 Mo. 312, 13 Am. Dec. 502; Britton v. Dier- ker, 46 Mo. 591; Crawford v. West Side Bank, 100 N. Y. 50; Meadows V. Cozart, 76 N. C. 450; Brown v. Straw, 6 Neb. 5S6; Stephen v. Gra^ ham, 7 S. & R. (Pa.) 505, 10 Dec. Am. 485; Heffner v. Wenrich, 32 Pa. St. 432; Wood v. Steele, 6 Wall. (U. S.) 80; Outhwaite v. Luntley, 4 Camp. 179; Walton v. Hastings, 4 Camp. 223, 1 Starke R. 215; Cardwell v. Martin, 9 East, 180; Master v. Miller, 4 T. R. 320, 2 N. Bl. 140: Vance v. Lowther, 45 L. J. Ex. 200, L. R. 1 Ex. D. 176; Sinclair v. Baggley, 4 M. & W. 312. c3c Nail V. Cazenove, 4 East, 477. See Stele v. Martin, 4 B. & C. 273; Cooper V. Robinson, 10 M. & W. • 694 ; Jaynes v. Hughes, 10 Ex. 430; Rex v. Flintshire, 3 Dowl. & L. 537; Reffel v. Reffel, 1 L. R. P. & D. 139. 64 Kirsley v. Duck, 2 Vern. 684. 344 L.VW OF LANDLORD AND TENANT. cannot be ascertained when the term begins the lease will be void. For in order that a written instrument shall be valid as a lease it must be for a term which is certain or which can be as- certained. Hence, a writing which conveys the right to mine until all mineral shall be exhausted is not a lease because it is impossible to ascertain when the mineral shall be exhausted." The date upon which the term is to begin may be shown by any parol evidence which is not inconsistent with the terms of the lease. An instrument is not invalid as a lease because the term is not specified in definite language if the beginning or duration of the term can be ascertained by parol evidence.'^® Thus, for example, where there is a manifest clerical error in the lan- guage of the lease by which the length of the term is made to appear ambiguous, a counterpart of the lease may be looked at by the court to ascertain where the mistake is, and the counter- part will be controlling providing it is clear and free from am- biguity.®^ The difficulty is usually not so much in ascertaining the length of the tenn but is ascertaining the date upon which the term begins. If the date upon which the term is to begin can be ascertained from the lease or from parol evidence, it is clear that the length and the date of the expiration of the term can usually be very easily ascertained with all the elements of vagueness and uncertainty removed. In the first place, it is a rule that where the parties in the lease have not specified the date upon which the term is to begin with the date on which the lessee entered into possession, will be the first day of the term.^* Thus, in the case of a valid lease for a term commencing in the future where the date of the beginning of the future term is not mentioned, the necessary element of certainty in the com- mencement of the future term is met by the tenant going into possession and paying rent under the lease. And the tenant cannot thereafter assert that his term was uncertain.*^" So, where a tenant moved in and paid five months' rent in advance and which the landlord received under an oral agreement for a «■'. Hobart v. Murniy, 54 Mo. P. 115, 2 C. P. D. 88. 35 L. T. 690, App. 249. 25 W. R. 334. «<; Lovelock v. Franklyn, 8 Q. B. csEberlien v. Abel, 10 111. App. 371, 16 L. J. Q. B. 182. 11 Jur. 626. 1035. GO Hammond v. Barton, 93 Wis. 67 Biircholl V. Clark, 46 L. J. C. 183, 67 S. W. Rep. 412. FORM AND EXECUTION OF LEASES. 345 lease for a term of years, but which fixed no date for the com- mencement of the term of years, it was held that the term began when the tenant moved in/'' So, the day possession was given is the date from which the lease was to commence, under an agreement for a lease of a public house which provided for a term of three years with an option to renew for another seven years and for possession to be given "within one month from this date." ^^ The circumstance that a lessee took possession of the premises on the day from which the computation of the term is made, is a very strong indication that the term was to begin on that day and was to expire the midnight of the day preced- ing that date in some subsequent year when the lease is for . term of years.'- In determining when an oral lease is to com- mence, the juiy may take into consideration the time when the lessee went into possession, the time from which he paid rent, and all other circumstances in connection with the lease which throw any light upon the question of when the term is to com- mence.'' Thus, if the rent is to be paid in advance on the tiret 70 Fegreisen v. Sanchez, 90 111. App. 105. Ti In re Lander's Contract (1S92), 3 Ch. 41. 72 Buchanan v. Whitman, 151 N. Y. 253, 45 N. E. Rep. 556, 557, 3 Ann. Cases, 349, affirming 76 Hun, 67, 59 N. Y. St. Rep. 619, 27 N. Y. Supp. 604. T3 Pendill v. Neuberger, 67 Mich. 562, 35 N. W. Rep. 249. See, also, Meeks v. Ring, 4 N. Y. Supp. 117, 119, 51 Hun, 329. The parties may agree among themselves what meaning to give a lease or a term which begins from the date of the lease. Where the term extends to one "year from the date thereof," the fact that the parties took pos- session on that date is a construc- tion of the lease, and is conclusive that they intended that it should begin on that date and conclude at midnight on the preceediug day of the next year. Buchanon v. Wliitman, 151 N. Y. 253, 256, 3 Ann. Cases, 349, 45 N. E. Rep. 556, affirming 76 Hun, 67, 27 N. Y. Supp. 604, 59 N. Y. St. Rep. 619. The term of a tenant under an agreement that he shall quit at three months' notice, commences on the date when he enters, in the absence of any provision expressly fixing the day upon which the term commences. So, where he enters under such an agreement at the middle of one of the usual quarters his term begins from that day and his tenancy can, under such circumstances be terminated by the landlord giving a notice to quit which expires on that day of the year, or some other quarter day computed from that date. The court, in laying down these rules, applied it generally to all parol leases, under which it said that no interest exists until the tenant went into possession, particularly 346 LAW OP lANDLOED AND TENANT. day of the term or of each month or quarter it will be readily presumed that in the case of a lease to begin on the first day of a month stated the first day is included in the termJ* But it has also been held that where the lease itself fijxes no day upon which the term is to begin, that it begins at the date of the in- strument/^ or from its delivery."^^^ In a case of a tenancy from month to month where a tenant who goes into possession during the month pays rent to the first day of the following month, his tenancy will be deemed to commence with the day to which he has paid.'® It may sometimes be necessary in determining the commencement of the term to draw a line of distinction between the time when the enjoyment and occupation of the premises is to begin and the time from which the instrument itself is to run. The two are not always synonymous. Thus, the posses- sion may be expressly agreed upon to begin on a day in the fu- ture though running in computation of time from a present or past day. Thus, a lease may be given to have and to hold from the first day of January next for the term of ten years, the term to begin from the date of the lease or from a prior date thereto.'^ In the case of a lease dated on one day, habendum from a day preceding, the term begins from the date where the lease is invalid under Johns. (N. Y.) 231. A lease for the statutes of frauds. If a parol a term of years "next ensuing the lease is valid the landlord's only day written," commences on the remedy upon it is where the ten- day and date of the lease, and a ant has not entered an action notice of the election of the ten- upon the agreement to pay rent. ant to terminate the lease given If the tenant neglected to pay rent on the same day of the month, a before entering the landlord may year later, is too late, as the sec- put an end to the lease by taking ond year has begun for the rent possession of the premises, or he of which the tenant may be held, may, at his election, let them lay Nesbit v. Godfrey, 155 Pa. St. 251, idle and vacant and sue for the 25 Atl. Rep. 621, following Lysle rent. Kemp v. Derritt, 3 Camp. v. Williams. 15 S. & R. (Pa.) 136; 510. Marys v. Anderson, 24 Pa. St. 272. 74 Meeks v. Ring, 4 N. Y. Supp. 7« Ver Steeg v. Becker-More 117, 119, 51 Hun, 329. Paint Co., 106 Mo. App. 257, SO TBKeyes v. Dearborn, 12 N. H. S. W. Rep. 346, 351; Doe v. John- 52; Enys v. Donnithorne, 2 Burr. son, 6 Esp. 10. 1197; Rowe v. Huntington, 1 773 Bac. Abr. 425; Rol. Abr. Vaughan, 73. 350; Engs v. Donnithorne, 2 Burr. 76a Jackson v. Schoonmaker, 2 1190. FORM AND EXECUTION OF LEASES. 347 though the lessee had a right to an earlier possession.'" A lease for a term of years of a building in process of construction and which the lease recites is to be completed on a day therein speci- fied, does not necessarily mean that the term is to begin upon the day on or by which the building is to be completed and that if the building is not completed, the lease shall not bind the les- see. The recital of the date upon which the building was to be completed may be presumed to be mere matter of description pointing out what property is to be leased leaving the com- mencement of the term to be determined by the jury from all the facts and circumstances of the case. And where in the lease itself or in some other instrument, the lease is spoken of as com- mencing on the completion of the building and running for a specified period thereafter, the term will commence upon the completion of the demised premises and not upon any date speci- fied by the parties when that event shall take place.'* In deter- mining the exact day or date upon which a term begins and ends, the courts, in modem times at least, are not guided or do not recognize any express rule or presumption of law, or any particular or technical meaning of the word "day" or "date," but are guided rather by the language of the lease which is as- sumed to express all the intention of the parties; and by the facts and circumstances of each case.^° In the absence of any particular expression of an intention to the contrary, if a lease for years, or from year to year, bearing a certain date, is to run, or "to have and hold" from that date, the term usually begins on the day following that date, and the day of the dat« T8 Mayn v. Beak, Cro. Eliz. 515. the day of the date of the lease This is a subject on which a great was included in computing the diversity of opinion is prevalent. time and the court took into con- Lord Mansfield in Pugh v. Duke sideration in thus construing the of Leeds, Cowper, 714, says that lease that rent was made payable "from the date" meant either in- on the first days of April, July, eluding or excluding the day ac- October and January, in each cording to the context and subject year. Deyo v. Bleakley, 24 Barb, matter. In other words the com- (N. Y.) 9. putation of time should always "o Noyes v. Longhead, 9 Wash, conform to the manifest intention 325, 329, 37 Pac. Rep. 452, 453. of the parties. Thus, where a so Pugh v. Duke of Leeds, Cowp. term was granted for five years 714: Ackland y. Lutley, 9 Ad. & from the first day of April, 1S53, E. 879. 348 LAW OF LANDLORD AND TENANT. is excluded in computing the duration of the term.-- On the other hand, where the intention of the parties clearly called for such a construction, it has been held that a lease to run from a particular day specified included tliat date.^^ An agreement for a future lease in a building which was not completed, for a term of five years from the completion of the building, is defi- nite, and the term begins when the building is complete. There need be no covenant in the lease that the lessor shall complete the building, for the completion of the building is a condition precedent to the commencement of the term. The fact that the lessee goes into possession and pays rent indicates that the par- ties have agreed that the building is complete and there is no objection to the lease on the ground of mutuality.^ § 241. The necessity of the delivery of the lease. Inasmuch as a deed takes effect only from its delivery by the maker to the grantee, or to some person authorized by the grantee to receive the deed where a lease is made by writing under seal, it is neces- sary to its validity as a lease,, that it shall be delivered either to the lessee or to his authorized agent. The general rules of law which involve the delivery of deeds are applicable to a written lease under seal and will be found cited in the notes.^' 82Goode V. Webb, 52 Ala. 452; hereof, was held to expire on April McGlynn v. Moore, 25 Cal. 384; 7th of the next year. A lease Kendall v. Kingsley, 120 Mass. 94; which is to operate from the mak- Atkins V. Sleeper, 7 Allen (Mass.) ing thereof, or from henceforth 487; Thornton v. Payne, 5 Johns. will prima facie be presumed to (N. Y.) 74; Wilcox v. Wood, 9 operate from the date of its deliv- Wend. (N. Y.) 346; Marys v. An- ery. 4 Coke Lit. 46b. Where a derson, 24 Pa. St. 272, 276, 2 Grant lease was dated March 25, 1783, Cases, 446; Lysle v. Williams, 15 and habendum "from the 13th of S. & R. (Pa.) 135; Nesbit v. God- March now last past," and the frey, 155 Pa. St. 251, 25 Atl. Rep. deed was not executed until scme- 621; Wilkinson v. Gaston, 9 Q. B. time after the date, the term com- 137; Pellew v. Wonford, 9 Barn. menced on the 25th of March, & Cress. 134; Webb v. Fairmaner, 1783, and not on the 25th of 3 Mee. & Wei. 473; 4 Coke, 46&. March, 1782. Stule v. Mart, 6 D. 8:iFox V. Nathans, 32 Conn. 348; & R. 392, 4 B. & C. 272, 28 R. R. Deyo V. Bleakley, 24 Barb. (N. Y.) 256. 9; Trull v. Granger, 8 N. Y. 115. 84 Hammond v. Barton, 93 Wis. It was held in Buchanan v. Whit- 183, 67 N. W. 412. man, 27 N. Y. Supp. 604, 76 Hun, sr, Frisbie v. McCarty, 1 Stew. & 67, where a lease dated April 8th, P, 56; Stetson v. Briggs, 114 Cal. to run one year from the date 511, 515; Oneto v. Restano, 89 Cal. FORM AND EXECUTION OF LEASES, 349 Thus where a lease was signed by lessees but never delivered by them, but they assigned it at the request of the lessor and de- livered it to the agent of the lessor and the lessor then collected the first instalment of rent from the assignee, it was held that there was no delivery of the lease to the lessor. An actual manual delivery of the lease by the lessor to the lessee is not essential and may be dispensed with, if, from the circum- stances, it may be fairly inferred that a delivery of the lease was intended by the parties.^^a of course, if the lessor actually retains the lease in his possession though it has been signed by the lessee, there can be no delivery to the lessee. For it is abso- lutely necessary to a valid delivery that the lessor should part with the control of the written lease. The delivery of a lease is complete as soon as the lessor has done something with the lease which prevents his regaining possession and control of it. Thus, where a lease was signed by both, parties and was left with an attorney to have a copy made of it, its delivery to the lessee was presumed.^® A lease under seal or other sealed instruments will be presumed to have been delivered upon the day of its 63, 26 Pac. Rep. 788; Rittmaster V. Brisbane, 19 Colo. 371, 35 Pac. Rep. 736, 740; Speed v. Brooks, 30 Ky. 119; Ford v. Gregory's Heirs, 49 Ky. 175; Maddox v. Gray, 75 Ga. 452; Dearmond v. Dearmond, 10 Ind. 191; Pike v. Letter, 26 111. App. 530; Leiter v. Pike, 127 111. 287, 20 N. E. Rep. 23; Dickerson V. Merriman, 100 111. 342; Robrn- pon V. Robinson, 116 111. 250, 5 N. E. Rep. IIS; Howard v. Carpenter, 11 Md. 259-277; Rhome v. Gale, 12 Minn. 54; Jackson v. Sheldon, 22 Me. 569; Egery v. Woodard, 50 Me. 45; Maynard v. Maynard, 10 Mass. 456, 6 Am. Dec. 146; Fay v. Richardson, 24 Mass. 91; Thatcher V. St. Andrew's Church, 37 Mich. 263; Robinson v. Noel, 49 Miss. 253; Jelks v. Barrett, 52 Miss. 315; Crawford v. Bertholf, 1 N. J. Eq. 458; Black v. Shreve, 13 N. J. Eq. 455; Church v. Gilman, 15 Wend. (N. Y.) 656, 30 Am. Dec. 82; Fogal V. Pirro, 23 N. Y. Super. Ct. 100; Morrow v. Williams, 14 N. C. 264; Green's Trustees v. Robinson (Wright), Ohio. 436; Kelsey v. Tourtelotte, 59 Pa. St. 184; Hammell v. Hammell, 19 Ohio, 17; Arthurs v. Bascon, 28 Leg. Int. (Pa.) 284; Coin v. Coin, 24 S. C. 596; Alexander v. Bland, 3 Tenn. 431; Stiles v. Brown, 16 Vt. 564; Dwinell v. Bliss, 58 Vt. 363, 5 Atl. Rep. 317. s-^'a McClure v. Colelough, 17 Ala. 89; Rivard v. Walker, 39 111. 413; Walker v. Walker, 42 111. 311, 89 Am. Dec. 445; Mallett v. Page, 8 Ind. 364; Crawford v. Bertholf, 1 N. J. Eq. 458; Goodrich v. Wal- ker, 1 Johns. Cas. (N. Y.) 250; Lore's Heirs v. Truman, 1 Ohio Dec. 510, 10 West. Law J. 250; Farror v. Bridges, 24 Tenn. 411. ^c Reynolds v. Greenbaum, 80 111. 416. 350 Ijaw of landlord and tenant. date, notwithstanding that the date of the acknowledgment to the instrument is subsequent to the date in the body of the writ- ing.*^ There are cases which sustain a contrary rule, the sub- stance of which is that where there is a discrepancy between the date of the instrument and the date in the acknowledgment, de- livery will be presumed to have taken place upon the date of the acknowledgement.^' So, the presumption that a lease or in- strument under seal was delivered upon the day of its date is never conclusive, and the fact that it was delivered upon some other day may always be proved by parol evidence.^^ The gen- eral rules defining what shall constitute the delivery of a deed are ordinarily applicable to leases under seal, A distinction, however, should be noted. A deed conveying the fee is ordi- narily valuable solely to the grantee and its maker has no fur- ther interest in retaining it after he has received the purchase money. A lease is very different, for under it the lessor has frequently as much interest as the lessee and consequently he may be justified to a certain extent in retaining it in his posses- sion. Leases are usually executed in duplicate, each party keep- ing a copy. But when this is not done, the retention of the lease by either party, wath the consent of the other, does not necessarily indicate that the lease has not been delivered. If both parties know that a lease has been executed and that it is in operation, its retention by the lessor is immaterial on the question of delivery. The entry of the lessee and the payment and receipt of rent then raise a conclusive presumption of de- 87 .Tayne v. Gregg, 42 111. 413; inson, Wright (Ohio), 436. This Robinson v. Gould, 26 Iowa, 89; presumption is not recognized in Ford V. Gregory, 10 B. Mon. (Ky.) New York in respect to all deeds 75; Sweetser V. Lowell, 33 Me. 446. not acknowledged or witnessed; 88 Blanchard v. Taylor, 12 Mich. and o fortiori is rebuttable by 339; Loomis v. Pingree, 43 Maine, showing that the deed or lease 299; Fountain v. Boatmen's Sav- was in the possession of its maker iugs Institution, .57 Mo. 553. or the lessor subsequent to its 8B Treadwell v. Reynold^s, 47 Gal. date. Elsey v. Metcalf, 1 Denio, 171; Barry v. Hoffman, 6 Md. 78; 323; or by the fact that the date Fairbanks v. Metcalf, 8 Mass. 230; of the acknowledgment is subse- Harrison v. Phillips' Academy, 12 quent to the date of the instrn- Mass. 426; 2 Bl. Com. 307; Good- ment. Mclntyre v. Strong, 48 N. rich V. Walker, 1 .Tohn. Cas. (N. Y. 127. Y.) 250; Green's Trustees v. Rob- FORM AXD EXECUTION OF LEASES. 351 livery to fhe lessee.^" On the otlier hand, the placing of a lease in the hands of the lessee is not alone a sufficient delivery if such was not the intention of the parties. This would be the case where a lessee was handed a lease for the purpose of having a guarantee of the rent endorsed thereon."^ A question whether a lease has been executed and delivered to a lessee where there is a conflict in the evidence has to be detei-rained by the jury.®- § 242. The acceptance of a lease. The delivery of a lease by the lessor to the lessee, whether express or implied, may be dis- regarded if there is no acceptance by the lessee. In the ease of deeds, generally the law will imply an acceptance by the grantee upon the ground that the deed is beneficial to the grantee.®^ Thus, it has been held that in the case of deeds, the actual Imowiedge by the grantee of the conveyance is not essential be- cause his assent to the delivery will be presumed upon the bene- ficial chai-acter of the conveyance, and this presumption can be overcome by proof of dissent, since^ if this be not the case, there soOneto v. Restano, 89 Cal. 63, 26 Pac. Rep. 788. 91 Jordan v. Davis, 108 111. 336. So the delivery of a lease may be in escrow as where, after its exe- cution, it is left in the hands of a third person to be given to the lessee as soon as he shall pay the rent for the first month of the term. Witthaus v. Starin, 12 Daly (N. Y.) 226. See, also, as to de- livery of a lease, Hayes v. Lawver, 83 111. 182; Garsuch v. Rutledge, 79 Md. 272, 17 Atl. Rep. 76. S2 Miltown V. Groodman, Ir. R. 10 C L. 27; Hastings v. Vaughn, 5 Cal. 315; Bensley v. Atwill, 12 Cal. 231; Brann v. Monroe, 11 Ky. Law Rep. 324; Hurlburt v. Wheeler, 40 N. H. 73; Grain v. Wright, 36 Hun, 74, 114 N. Y. 307, 21 N. E. Rep. 401; Fisher v. Keane, 1 Watts (Pa.) 278; Stoney v. Win- terhalter, 11 Atl. Rep. (Pa.) 611; Shaw V. Cunningham, 16 S. C. 631; Lindsay v. Lindsay, 11 Vt. 621; Dwinell v. Bliss, 58 Vt. 353, 5 Atl. Rep. 317. The question of delivery, being one of the inten- tions of the parties to be inferred from all the circumstances, is usu- ally a question of fact and not of law. So the question whether a deed or a lease was executed and delivered at the date in the lease is a question of fact for the jury. Center v. Morrison, 31 Barb. 155. 93 Treadwell v. Reynolds, 47 Cal. 171; Billings v. Starke, 1.5 Fla. 297; Fash v. Blake, 44 111. 302; Scobey v. Walker, 114 Ind. 254, 15 N. E. Rep. 674; Faulkner v. Adams, 126 Ind. 459, 26 N. E. Rep. 170; Alexander v. De Ker- nel, 81 Ky. 345; Sweetser v. Low- ell, 33 Me. 446; Smith v. Porter, 76 Mass. 66; Saunders v. Blythe, 112 Mo. 1, 20 S. E. Rep. 319; Rob- inson V. Wheeler, 25 N.Y. 252; Hall V. Benner, 1 Pen. & W. (Pa.) 403, 21 Am. Dec. 394; Raines v. Walker, 77 Va. 92. 352 LAW OF LANDLORD AND TENANT. can be no delivery in law of a deed to an infant.^* In the case of leases, under some circumstances, the same presumption or implication of an acceptance by the lessee where the lease is executed by both parties and delivered to him will be recog- nized. The beneficial character of a lease so far as the tenant is concerned, is not so apparent as furnishing a basis for the presumption of its acceptance by him as it would be in the case of a deed of the fee simple. The conveyance of the fee of real estate by a deed may be based upon a good consideration, as for example, the love and affection which the grantor has for the grantee. This is so in many instances. On the other hand, leases are contractual in their nature and as contracts are merely promises to perform on the part of both parties. But, unques- tionably, there is some presumption of the acceptance of the lease on the part of a lessee.®^ For unquestionably, the delivery of a lease may be of benefit to the lessee. The beneficial char- acter of a lease so far as the lessee is concerned is not always to be determined by the term which it purports to create. The nature and circumstances of the parties and the title of the les- see must be considered ; and, where at the date of the execution of the lease, the lessor had no title to the premises, while the lessee had a claim of title based on several years of uninter- rupted possession, no presumption of benefit to the lessee will arise. ''^ A lessee who accepts a lease executed by and delivered to him by his landlord without the lessor's consent cannot qual- ify his acceptance and modify the terms of the writing by parol ; he must either accept the lease or reject it absolutely and cannoi accept it on condition. Hence, where a lessor, in fulfilling his covenant to renew a lease, executed and sealed a lease which he then sent to the lessee, the signing of the lease by the lessee and the return of a duplicate to the lessor are not a rejection of the lease by reason of the fact that the lessee sends to the lessor a letter denying the lease bound him to pay the rent named in it.*^ Hut an acceptance may be given on condition that the 04 Mitchell v. Ryan, 3 Ohio St. Hatch, 9 Mass. 307; Jackson v. 377; Falk v. Varn, 9 Rich. Eq. (S. Dunlap, 1 Johns. Cases (N. Y.") C.) 303; Wall v. Wall, 30 MLss. 91; 114; Jackson v. Bodle, 20 Johns. Robinson v. Gould, 26 Iowa, 89, 93. (N. Y.) 184. 85 Maynard v. Maynard, 10 "c Camp v. Camp, 5 Conn. 291, Mass. 456; Hedge v. Drew, 12 200, 13 Am. Dec. 60. Pick. (Mass.) 141; Hatch v. ot Leiter v. Pike, 127 111. 287, 20 FORM AND EXECUTION OF LEASES. 353 lease shall be valid if the parties shall consent thereto."^ The retention of a lease by the lessee which has been executed by a les- sor and sent to a lessee, may, as we have seen, raise a presump- tion that the lessee has accepted it. The payment of rent may also raise an implication of tne acceptance of a lease by a lessee. Where a lessee executed leases, tendered him by the lessor in duplicate on a parol agreement by the latter to repair the prem- ises, and, at the same time, pays a sum of money down, it was held that the pajonent down was not an acceptance of the lease by the lessee where the owner retained both copies."" The ques- tion of the acceptance of the tenant's otfer by the landlord may be material. The landlord's acceptance of the tenant's offer must be clear and unequivocal. The acceptance of the landlord, like that of the tenant must also be unconditional. The sending of a draft lease by the lessor to a lessee who had signed a memoran- dum agreement which was in its character an offer to take a lease accompanied by his references, where the lessor does not accept the oft'er either in writing or by parol, is not such an un- conditional acceptance of the proposed lease as will enable the lessee to obtain specific performance for the reason that the ac- ceptance of a written proposal must be an unambiguous act. This cannot be said of the sending of a draft lease w^hieh might have been sent to save time and without any intention on the part of the lessor of accepting the proposal. So, also, an accep- tance of a proposal for a lease must be unconditional. The sending of a draft lease, if it is an acceptance at all, is an ac- ceptance upon the condition that the lessee is satisfied with it.^ So, a memorandum of an agreement for a lease, which is signed by the intended lessee, and which contains his references, but which is not signed by the lessor, and which does not contain in any portion of it, the name of the lessor, is not binding on the N. E. Rep. 23, 33, afBrming Pike which he did. It was held that the V. Leiter, 26 111. App. 520. acceptance was conditional on a sf* Shelton v. Durham, 76 Mo. correction of the defects. 434, 437, where it appears that the 99 Flommerfeldt v. Englander, lessee, after the execution of the 61 N. Y. Supp. 1S7. 29 Misc. Rep. lease, having learned of certain 655; Witthaus v. Starin, 12 Daly defects in its execution which in- (N. Y.) 226. validated it, refused to receive it i Warner v. Willington, 3 Drew, and the lessor agrees to remedy 523, 25 L. J. Ch. 662, 2 Jur. (N. S.) the defects if he would accept it 433, 4 W. R. 53 23 354 LAW OF LANDLORD AND TENANT. lessee as an agreement to make a lease,- unless the name of the intended lessor can be ascertained from some other writing which is sufficiently connected with the memorandum by clear reference to cure the omission from the memorandum. So, if the memorandum of lease refers to the conditions named in an- other paper or refers to a writing containing the name of the les- sor or the lessee writes a letter containing the name of the les- sor, the defect will be cured. The presumption that arises from the record of an instrument that it has been delivered, may be rebutted by proof of a contrary intention. Thus, where the assignment of a lease was recorded after the death of the lessor, and it was shown the writing had never been in the hands of the lessee, but that a notary had under the lessor's instructions, re- tained it in his possession for the lessor until he died, when he recorded it ; it was held that there had been no delivery ^ by the lessor. And it was also held in the same case that payment of rent by the assignee while he was in possession of the demised premises and his rental, that the lease had been assigned to him, would not estop him to assert that there had been no delivery to him. § 243. The necessity for the entry of the tenant. By the common law, livery of seizin or the actual entry of a grantee upon the land was necessary to the validity of every grant of land for life or of an estate of inheritance. This was not neces- sary in the case of grants of terms of years. In England and in most of the states of the Union, the distinction has been abolished and the estate vests in the grantee upon the delivery of the deed or lease whether it is an estate for life, in fee, or for years.'^ In the case of a lease, all that is vested in the lessee down to the date he goes into possession is the right of possession. This vests in the lessee before the delivery to him of the lease. And at common law it was said that the lessee under a lease had only the interessee termini until he entered into possession, and it followed therefore, that he could not, until he had entered into possssion, maintain trespass against an intruder.'' The execu- 2 Champion v. Plummer, 1 N. R. Higher v. Rice, 5 Mass. 344; Mat- 252. thews v. Ward, 10 G. & J. (Md.) sCanale v. Copello, 137 Cal. 22, 443; Bryan v. Bradley, 116 Conn. 09 Pac. Rep. 098. 474. 4 Flint V. Shf3ldon, 13 Mass. 443; s Co. Litt. 296b; Harrison v. FORM AXD EXECUTION OF LEASES. 355 tion and delivery of a lea.se give the tenant the right to the pos- session and a right of action against the landlord for damages, if the landlord fails to deliver possession, but they do not give the tenant any right to maintain an action against a third party either to recover damages for trespass or to oust a third party who has taken possession of the premises. The tenant who has signed the lease may be released by the landlord from his cove- nant to pay rent before he has entered into possession, and the lessee on the other hand before he has entered may assign his lease, and his a&signee will take under it, not the possession, but the right to the possession. The death of the lessor before the entry of the lessee does not determine the latter 's right to enter under the lease. The lessee may enforce his right of entry and recover damages for its denial from the heirs of the lessor. So, also, when the lessee dies before entiy, his heirs or personal representative may enter. So, also, if the lease is made to two jointly, either may enter on the death of the other.*' § 244. The date upon which the lease expires. The date upon which the term created by the lease expires is to be deter- mined by computing the time from the date upon which the term commences. AVhether or not the date upon which the term commences is or is not to be included in this computation is elsewhere considered. Generally it is unnecessary to mention the date upon which the lease terminates. If the date of the Blackburn, 17 C. B. (N. S.) 678; etc., Co., 5 Exch. 932. In Ryan v. Wheeler v. Montefiore, 2 Q. B. 133; Clark, 14 Q. B. 65, the court said: Co. Litt. 296b; Comyn's Digest, "It is distinctly laid down in Wil- Trespass B. liams v. Bosanquet, 1 Brod. & B. 6 It is firmly settled that a 238, 3 J. B. Moore, 500, that entry lessee or the assignee of a lease or is not necessary to the vesting of a mortgagee before entry cannot a term of years in the lessee; the maintain trespass since that ac- interest and the legal right of pos- tion is always based on actual pos- session, where the term is to com- session. Harrison v. Blackburn, mence immediately, and not in 17 Com. Bench (N. S.) 678, 692. the future vests in the lessee be- See, also, on the necessity for an fore entry, and, of course, the actual entry to maintain trespass, right of possession in the lessor is Ryan v. Clarke, 14 Q. B. 73. So gone, though for the purpose of one who takes a lease for years as maintaining an action of trespass a security by way of mortgage the lessee must enter, for that ac- cannot bring trespass unless he has tion is founded on the actual pos- possession. Wheeler v. Montefiore, session." 2 Q. B. 133; Turner v. Camerous, 356 LAW OF L^VNDLORD AND TENANT. termination of the lease is inserted in it and this is ineonsi.->tent with the length of the term measured from the date stated for the eonuneneement of the lease, the court will correct the error which is apparent upon the face of the lease. Thus, where the lease was for the "term of six months from the 6th day of De- cember, 1881, which term will end on the sixth day of May, 1882," the court corrected the error which was clearly an error in computation by making it read the "6th day of June, 1882." '^ "Where the term is to end on a specified date, as for example, "twenty years from the 25th day of next March," the term is not complete nor is it ended until the last moment of the 25th day of March in the last year of the term.^' If, from the lan- guage of the lease, it is uncertain and doubtful upon what date the term is meant to expire, the tenant, it seems, and not the landlord, may elect to terminate it upon that date which is most beneficial to him.^ If the day upon which the tenant is bound to vacate the premises according to the date of the expiration of the term as set forth in the lease, falls upon a Sunday, the ten- ant has until the following Monday at 12 o 'clock to move. The respect which the law has for the first day of the week, both as a religious day and as a day for necessary rest, will prevent the landlord from compelling his tenant to vacate upon that day where the removal of the tenant involves also the performance of manual labor in removing his personal belongings. The re- tention of the possession by the tenant until the following Mon- day after the Sunday on which his term has expired, is not there- fore such a holding over as will entitle the landlord to continue to regard him as a tenant.^" 7 Nindle v. Bank. 13 Neb. 245, following May at 12 M. Marsh v. 247. Masterson, 3 N. Y. Supp. 414, 415; ^Ackland v. Lutley, 1 P. & D. Wilcox v. Wood, 9 Wend. (N. Y.) 636, 9 A. & E. 879, 8 L. J. Q. B. 346, and it has been the immemo- 164. rial usage to exchange possession » Murrell v. Lyon, 30 La. Ann. at 12 o'clock noon. See as to the 255. same custom in Pennsylvania, 10 See Salter v. Burt, 20 Wend. Marys v. Anderson, 24 Pa. St. 272, (N. Y.) 205; Jones v. Shears, 4 276; Insurance Co. v. Myers, 4 Ad. & El. 832. In New York, by Lane. Bar. 151. In People ex rel. custom which has acquired the Elston v. Robertson, Barb. (N. Y.) force of law all tenancies com- 9, 17, a distinction is made be- mtncing on May 1st for one year tween a lease to end on the 1st terminate on the flrst day of the day of May and a lease to the 1st FORM AND EXECUTION OF LEASES. 357 § 245. A reversion in the lessor. In order that an instrument shall be regarded as a lease, there must be a reversion in the les- sor. The instniment need never expressly state that there is a reversion in the lessor as this may be sho^\^l by parol evidence. It follows from this that the instrument which is a lease must convey a less estate that the landlord possesses. If the instru- ment conveys all the interest of the landlord, it is an assignment and not a lease. The words which are employed in the instru- ment itself are not always conclusive upon the question whether it is a lease or an assignment of a lease. Hence, where a lessor parts with his whole interest to another, it is an assignment though he may call the instrument which conveys his interest a lease. So the fact that a lessor uses the word "demise" in as- signing his lease does not change the effect of the writing for the reason that the word "demise" is often used in a general way as the equivalent of the word "convey," and may properly be ap- plied to the conveyance of an estate in fee or other freehold es- tate as well as to the lease. ^^ So, if a lessee for three years ex- pressly demises his term for four years, it is not in any sense of the word a lease, but is in its operation a fixed and valid as- signment of all his premises.^^ § 246. The approval of the lease by the attorneys for the parties. It is sometimes customary to insert in an agreement to make a written lease, a provision that the writing shall be sub- ject to the approval of the attorneys of the respective parties. The insertion of a clause providing for the approval of attorneys or solicitors does not necessarily prevent informal writings from being regarded as a lease or indicate that a formal lease is to be executed. The insertion of the words "to be approved by me and my solicitor" in a letter offering to make a lease where the offer was accepted in writing by the other parties, does not pre- vent these letters from being considered as a complete contract to make a lease. ^''' AYliere an intended lessee writes a letter which contains all the language necessary to a contract with a provision day of May. It is there held that n 2 Inst. 483. the term created by the former i^ Hicks v. Downing, 1 Ld. lease ends on the 1st day of May Rayd. 99. at 12 M., while the latter expires i3 Eadie v. Addison, 62 L. J. Ch. at 12 o'clock on the nig'ht of SO, 47 L. T, 543, 31 W. R. 320. April 30th. 358 LAW OF LANDLORD AND TENANT. "tBat such lease is to be approved in the customary way by my solicitor," and the offer in the letter is accepted, there is a com- plete and binding" contract which may be specifically enforced though the solicitor of the lessee refused to approve the lease or to complete it. The meaning of the provision for the approval of the solicitor was that he was to see to it that nothing irregular informal or unusual was inserted in the lease, which was to be executed to carry out this agreement.^* Under an agreement for a lease which is to be approved by the parties' attorneys, the at- torneys have no right arbitrarily to refuse to approve it. The refusal of either to be effective to release his principal from the obligation to execute the lease must be based on reasonable grounds. For, presumptively at least, the approval must be prior to or contemporaneous with the execution of the lease by the parties and not subsequent thereto. If both attorneys approve tlie proposed lease, their clients are bound to exe- cute it or accept the consequences. If either attorney arbi- trarily and without a good and sufficient reason refuses to approve the lease according to the agreement, his client is in default and the other party to the agreement may sue for damages or to compel a specific performance of the contract to make a lease without a tender of an executed lease on his part. Nor need he ask a court of equity to reform the agreement so as to dispense with the approval of the attorney. It is for him to show that the approval was unjustly refused and if he shall do this, the giving of the approval may be dispensed with under the equitable rule that equity will presume that thing to have been done which ought to have been done.^^ If the parties to an 11 Chipperfield v. Carter, 72 L. certain point tlie terms shall be T. 4S7. the terms of the contract, but that i'> Pittsburgh Amusement Co. v. the minor terms shall be slibmit- Ferguson, 100 App. Div. 453, 457. ted to a solicitor and shall be 91 N. Y. Supp. 427; Sibbald's such as are approved of by him, Case, 83 N. Y. 384. "If in the then there is no contract because case or a proposed sale, or lease all the terms have not been set- of an estate to persons agreeing tied. Now with regard to the con- to all the terms, and saying 'we struction of letters which are re- will have the terms put into lied upon as construing a contract, form,' then all the terms being I have always thought that the au- put into writing and agreed to, thorities are too favorable to spe- there is a contract. If two per- cific performance. When a man sons agree in writing that up to a agrees to buy an estate there are FORM AND EXECUTION OF LEASES. 359 agreement for a lease actually enter into such an agrreement, the mere fact that they sent it to a solicitor or an attorney, with in- structions to prepare more formal documents is immaterial. The agreement, though informal, will be treated as final, and its character as a final agreement will not be destroyed nor its va- lidity as a writing upon which specific performance may be pro- cured affected by the fact that a solicitor is to recast its form. If, on the other hand, the parties in negotiating use letters, or if they have made a memorandum of an agreement which in either case is not signed by both of them, or from some circumstance appearing in the evidence, is not shown to be an agreement to make a lease, the mere fact that they sent the papers to a solic- itor to have them put in a form which is to be afterguards ap- proved by them, is some evidence that they do not regard the memorandum as final and do not bind themselves by a lease, or an agreement to make one until it is reduced to a proper form. a great many more stipulations wanted than a mere agreement to buy the estate, and the amount of purchase money that is to be paid. . . . When therefore you see a stipulation as to a formal agree- ment put into a contract, you may say it was not put in for nothing, but to protect the vendor against that very thing. Indeed, notwith- standing protective conditions the vendor has not unfrequently to allow a deduction from the pur- chase money to induce the pur- chaser not to press a requisition which the law allows him to make. All this shows that con- tracts for the purchase of lands contain something more than can be found in the short and meager form of an ordinary letter. When we come to a contract for a lease, the case is still stronger. When you bargain for a lease simply, it is for an ordinary lease, and nothing more; that is, a lease con- taining the usual covenants and nothing more; but when the bar- gain is for a lease which is to be formally prepared in general no solicitor would, unless actually bound by the contract, prepare a lease not containing other cove- nants besides, that is, covenants which are not comprised in or un- derstood by the terms 'usual cove- nants.' It is then only rational to suppose that when a man says there shall be a formal contract approved for a lease, he means that more shall be put in the lease than the law generally allows. Now in the present case, a plain- tiff says in effect: 'I agree to grant you a lease on certain terms, but subject to something else being approved.' He does not say: 'Nothing more shall be required beyond what I have already men- tioned,' but 'something else is re- quired,' which is not expressed. That being so, the agreement is uncertain in its terms, and con- sequently cannot be sustained." By Jessel. M. R., in Winn v. Bull, 7 Ch. Div. 29, 31. 360 LAW OF LANDLORD AND TENANT. In each case, however, the intention of the parties is a question of fact upon all the circumstances.^® § 247. The responsibility of the tenant. The landlord, if he is wise, will, before executing a lease, ascertain that he is deal- ing with a responsible tenant. He may make the condition that prior to the execution of the lease, the tenant shall show that he is financially responsible. The landlord must be allowed a reasonable time to look up the references given him by his pros- pective tenant. On the other hand, he must use due diligence in making his inquiries regarding the financial condition of his tenant. If negotiations for a lease are pending and the minds of the parties have met on the terms of the lease, and negotia- tions are suspended for the purpose of enabling the landlord to ascertain whether the tenant is responsible, the landlord cannot prolong his investigation for an unreasonable period. If he shall do so, he is alone to blame if the tenant shall treat his silence and delay as a refusal to give the lease. The tenant is entitled to know within a reasonable time whether or not his references are satisfactory and what shall be a reasonable time depends upon the circumstances of the case, as for example, the difficulty that the landlord may have in ascertaining the facts which will enable him to accept or reject the tenant. If he finds the references are unsatisfactory, he must reject promptly. The landlord cannot also arbitrarily declare that references furnished to him are insufficient if, in fact, they ought to satisfy him. The question whether references are sufficient, and whether the ten- ant is a responsible person is for the jury to determine. If the information which the landlord obtains from the parties to whom the tenant referred should satisfy a reasonable man in view of all the circumstances that the tenant was responsible, the land- lord ought to be satisfied and if such is the case, then he is liable to the tenant for an arbitrary refusal to permit him to have the lease. In an action by the tenant for damages for the landlord's failure to execute a lease which was agreed upon, subject to the result of inquiries as to the tenant's responsibility, the jury should find for the tenant, if they find that the landlord ought to have been satisfied, and as a part of this they may find on all iBRifigway V. Wharton, 6 IT. L. Cas. 238, 27 L. J. Ch. 46, 4 Jur. (N. S.) 173, 5 W. R. 804. FORM AND EXECUTION OP LEASES. 361 the evidence tliat the tenant was a responsible person and ought to have been accepted by the landlord. ^^ § 248. A failure to read the lease. As a general rule of the law of contracts, it is well settled that where a person, having the ability to read a written contract, signs it without reading it, and without requesting it to be read to him, and no fraud or trick is used upon him to prevent him from reading it, he is bound thereby to the same extent as though he were familiar with its contents.^® This rule is applicable to written leases. If the parties can read, each ought to read it for himself. If one or both cannot read, it should be read for the bene- fit of the illiterate party or parties to it. Neither party, being himself unable to read, has a right to rely upon the other reading it for him ; nor should he accept any statements of the other as to the contents of the lease, unless some relation of trust or con- fidence exists between them.^^ And where a lessor does not occupy such a position of trust or confidence to the lessee as will entitle the latter to rely upon the representations of the lessor, the fact that the lessee, being illiterate, is induced to execute a written lease by the lessor suppressing certain parts in it in reading it which are material, does not justify the rescission of the lease by the lessee for the fraud of the lessor.-° If the les- 17 Ward V. Smith, 11 Price, 19. inson v. Glass, 94 Ind. 211; Webb IS McKinney. v. Herriclc, 66 v. Corbin, 78 Ind. 403. Iowa, 414, 23 N. W. Rep. 767; Gul- 20 Binford v. Bruso, 22 Ind. liher v. Chicago, R. I. & P. R. Co., App. 512, 54 N. E. Rep. 146. A 59 Iowa, 416, 13 N. W. Rep. 429; contract just and reasonable in Watson V. Planters' Bank, 22 La. its stipulations between competent Ann. 14; Allen v. Whetstone, 35 parties is not void solely because La. Ann. 846; Sanborn v. Sanborn, one of the parties who signed it 104 Mich. 180, 62 N. W. Rep. 371; did not when he signed know its Quimby v. Shearer, 56 Minn. 534, contents in the absence of fraud 58 N. W. Rep. 155; Robinson v. on the part of the other. New Jarvis, 25 IMo. App. 421; Penn v. York, L. E. & W. R. Co., 8 Ohio Brashear, 65 Mo. App. 24, 2 Mo. Cir. Ct. Rep. 593. See, also, App. Rep. 1132; WTieeler v. Mow- Krause v. Stein. 173 Pa. St. 221, ers, 74 N. Y. St. Rep. 950, 16 Misc. 33 Atl. Rep. 1031. In opposition Rep. 143, 38 N. Y. Supp. 950; to the rule of the text that neither Bellinger v. Gillespie, 118 N. C. party has a right to rely upon the 737, 24 S. E. Rep. 538. reading to him of the lease by the 19 Lindley v. Hoffman, 22 Ind. other party, it has been held in App. 237, 53 N. E. Rep. 471; Rob- some cases that a tenant is au- thorized to rely upon the land- 362 LAW OP LANDLORD AND TENANT. sor, knowing that the lessee cannot read, reads the lease for him, he will be held to the strictest good faith, and if he misrepre- sents its provisions either by omitting to read clauses which are actually in it or pretends to read from it clauses which are not in it so that the lessee is deceived thereby, and by reason thereof executes the lease relying upon the landlord reading it, the lease is void for fraud, and if the tenant has entered, he cannot be held under the written lease, but is simply a tenant at will under an agreement for a lease.^^ The omission of a lessee to read the lease before he executes it, does not prevent him from obtaining reformation of it, if he could read little English him- self and relied upon some other person to read it for him.^- § 249. A mistake in the execution of a lease. Courts of equity have a general and broad jurisdiction to correct mistakes which occur in the preparation and execution of written instru- ments which in its more minute details and application to the affairs of men is more properly to be discussed in a work treat- ing of equitable remedies than in this place. Here it may suffice to say that a lease will be rescinded for mistake only where the mistake is as to some fact which is material to the transaction lord's statements of the contents procured by fraud, deceit and mis- of the lease where the latter has representation, and (2) that the prepared it or procured it. Powell party executing it must have been V. Lynde Co., 64 N. Y. Supp. 153, free from negligence in affixing 155, 49 App. Div. 286; Grosvenor bis signature thereto. It is not V. Green, 28 Law J. Ch. 173; Wil- enough that he executes the in- son V. Hart, 1 Ch. App. 463. strument when he thought and be- 21 Knoepker v. Redel, 116 Mo. lieved that he was executing an App. 62, 92 S. W. Rep. 171. entirely different one, but he must 22 Silbar v. Ryder, 63 Wis. 106, be induced to execute it by fraud, 23 N. W. Rep. 106. The rules in deceit, etc., and he must be free regard to the reading of a written fi'om laches and negligence on his instrument for the benefit of il- Part. If he can read he must read literate parties are thus summed it for himself. If he cannot read, up in Lindley v. Hoffman, 22 Ind. he must have some one upon App. 237, 53 N. E. Rep. 471. "It whom he can rely to read it for will be observed in all cases cited him if that is possible; for as a where this general rule has been general rule, as we shall presently discussed the decisions have been show, he has no right to rely upon grounded on two basic proposl- the adverse party to read it for tions: (1) That the execution of him." the in.strument must have been FORM AND EXECUTION OP LEASES. 3G3 and which affects the interests of lessor and lessee in some sub- stantial manner. If the mistake was as to some trivial or unim- portant matter, a court of equity will not interfere between the parties to the lease to give relief. So, too, the mistake must have been mutual as would be the ease where both the parties to a lease had agreed by parol upon all its terms and in commit- ting these terms to writing and on executing the writing, some- thing material and important previously agreed on had been omitted by the scrivener from the written lease without the knowledge of either party. In such a situation of affairs, equity will insert and supply what the parties have omitted in order to effectuate their real intention. For the mistake must have been unintentional as well as mutual and the party who is seek- ing to have it corrected must show that he was free from negli- gence in considering the language of the writing he wishes to have corrected or in his understanding of the facts and circum- stances of the case.^^ These rules regulate the remedy in cases of a mistake of fact and it is often said that only mistakes of fact will be relieved against. This statement is correct if the mistake of law consists only and exclusively in a misunder- s-tanding of the legal effect of a transaction by a party who has a full and intelligent knowledge of all the facts. But a mistake of law which would be relieved against occurs where the parties have fully agreed by parol upon the terms of a lease or other writing, without any mistake of law or fact and they themselves or their agent in reducing the lease to writing, use words and phrases, whether technical or not, under a mistake as to their legal effect and which do not represent the intention of the par- ties as embodied in their oral agreement. Equity will relieve against a mistake of this sort occurring in a lease though it be called a mistake of law, for the contract, as written, does not represent the true intention of the parties. But where the par- ties have accurately expressed their final intentions in the lease and there is no mistake of fact in the preliminary negotiations, equity will not relieve against a mistaken interpretation of its language by a party to it which has, without any fraud on the part of the other, resulted in injury to him. 23Bluestone Coal Co. v. Bell. 38 Irick v. Fulton's Ex'r, 3 Gratt W. Va. 297, 18 S. E. Rep. 493, 497; (Va.) 191 364 LAW OF LANDLORD AND TENANT. § 250. The usual and customary covenants and provisos. A contract to make a lease, which states only that the lease is to contain the "usual covenants," means thereby that such cove- nants shall be comprised in the lease as are fit and proper ac- cording to the nature of the lease which is to be made. Though the contract does not stipulate for the "usual and proper cove- nants, ' ' yet certain covenants will be inserted or implied. What shall be considered usual covenants depends upon the circum- stances, that is to say, upon the nature of the property itself and upon the use which is to be made of it and also upon the cus- toms of that portion of the country where that property is lo- cated. "VNHiere the parties have expressly stipulated for the usual covenants, what are usual covenants is a question of fact to be determined from the circumstances. The court will al- ways receive parol evidence to determine the meaning of these words.^* If the agreement for a lease does not require the usual covenants to be inserted, it is a question of law for the court to determine what covenants the parties are entitled to. In con- struing a stipulation for usual covenants, it has been held that the lessor cannot compel the insertion of covenants in restraint of trade where the premises are located in a business section.^^ Nor can he require a restriction in the lease against a particular trade where the agreement for a lease contained no stipulation for such a covenant.^** A covenant on the part of a tenant to keep premises insured is not a usual covenant nor is it a" usual covenant for the landlord to agree to rebuild in case the prem- ises are destroyed by fire with a stipulation that the rent shall cease on his failure to do so.-^ A covenant to pay taxes is in England a common covenant in a lease which reserves a net rent, and a provision that upon the breach of such a covenant in the lease of a pu])lic house, the landlord may re-enter for a breach of such a covenant is also usual. -^ Under an agreement to lease premises by a lease to contain all usual and necessary cove- 24 Bennett v. Womack, 3 C. & P. 27 Doe v. Sandham, 1 T. R. 70&; 96, 98. Medwin v. Sandham, 3 Swanst. 25 Wilbrahani v. Livesey, 18 6S5. Beav. 206, 2 W. R. 281 ; Van v. 2s Bennett v. Womack, 7 B. & Corpe. 3 Myl. & K. 269, 6 L. J. Ch. C. 627, 1 M. & Ry. 644, 3 Car. & 208, 1 Jur. 101, 149. P. 96, 6 L. J. (O. S.) K. B. 175, 26 Prospect V. Parker, 3 Mylne & :U R. R. 270. K. 280. FORM AND EXECUTION OF LEASES. 365 nants, it has been held that a covenant not to assign is a usual and customary covenant.-^ But there are many cases which hold that a covenant not to assign without the landlord's consent or license is not a usual covenant.^" Thus, it will be seen on comparing the cases on and for this proposition that the weight of the decisions is decidedly on the side of the latter proposition. Whether under a provision in an agreement for a lease that the usual covenants are to be inserted in the lease, the lessor shall be entitled to have a power of entry upon the breach by the les- see of a covenant, has been differently decided. It has been held that a lease ought to contain a power of re-entry on the lessee becoming bankrupt. ^^ But it has also been held that such a power of entry is unusual and that an intended assignee of a lease is not bound to accept a lease containing such a provision un- less he has expressly agreed to do so.^- And it has also been held that, as a general rule, a landlord is not entitled to have a pro- vision for re-entry inserted in the lease as a usual and customary provision on the breach of any covenant in the lease, except for the breach of the covenant to pay rent.^^ An agreement for a lease to contain the usual and necessary covenants and particu- larly to contain a covenant by the tenant to keep the premises in good repair, requires that he shall covenant to repair generally without any exception therein of damages by fire or tempest.^* 29 Morgan v. Slaughter, 1 Esp. Lander and Bagley's Contract, In 8, 5 R. R. 715; Haberdashers' Co. re, 61 L. J. Ch. 707; (1892) 3 Ch. V. Isaac, 3 Jur. (N. S.) 611, af- 41, 67 L. T. 521, following Header- firmed 5 W. R. 855; Folkingham son v. Hay, 3 Bro. C. C. 632. V. Croft, 3 Anstr. 700, 4 R. R. 844. si Haines v. Burnett, 27 Beav. 30 Hampshire v. Wickens. 47 L. 500, 29 L. J. Ch. 289, 5 Jur. (N. S.) J. Ch. 243, 7 Ch. D. 555, 38 L. T. 1279, 1 L. T. 18, 8 W. R. 130. 408, 26 W. R. 491; Bucldand v. 32 Hyde v. Warden, 47 L. J. Ex. Papillon, L. R. 1 Eq. 477, 12 Jur. 121, 3 Ex. D. 72, 37 L. T. 567, 26 (N. S.) 155, affirmed 36 L. J. Ch. W. R. 201. 81, L. R. 2 Ch. 67, 12 Jur. (N. S.) as Hodgkinson v. Crowe. 44 L. J. 992. 15 L. T. 378, 15 W. R. 92; Ch. 680, L. R. 10 Ch. 622, 33 L. T. Browne V. Raban, 15 Ves. 528; Bell 38S, 23 W. R. 885; Anderton and V. Barchard, 16 Beav. 8, 21 L. J. Milner, in re, 59 L. J. Ch. 765, 45 Ch. 411; Henderson v. Hay, 3 Bro. Ch. D. 476, 63 L. T. 332, 39 W. C. C. 632; Hampshire v. Wickens, R. 44. 7 Ch. D. 555, followed in Bishop v. 34 Sharp v. Milligan, 23 Beav. Taylor, 60 L. J. Q. B. 556, 64 L. T. 419; S. C, Nom. Thorpe v. Milli- 529, 39 W. R. 542, 55 J. P. 695; gan, 5 W. R. 336. 366 LAW OF LANDLORD AND "TENANT. In conclusion, it may be said that the usual tenant's covenants are (1) to pay rent; (2) to pay taxes, except those expressly made payable by the landlord; (3) to keep and deliver in repair; (4) to permit the landlord to enter and view the premises. But in the United States, a covenant on the part of the tenant to pay taxes would not be a usual covenant. § 251. Leases executed in duplicate and counterpart. Writ- ten leases of which there are two copies, one signed by each party to it, are as binding upon the other to the same extent as though there had been only one copy of the agreement or lease and both parties had signed it.^^ The mere fact that the parties to a lease have agreed to call one contract "an original" and one "a du- plicate," does not affect the force or relevancy of the duplicate copy.^® Where there is a discrepancy between the original lease and its duplicate or counterpart which cannot be explained or which is not shown to be a mistake of the person who wrote it, the lease will have precedence over the counterpart. This rule applies only to cases where there is an inconsistency between the counterpart and the original and not to a case where the terms of the lease itself are inconsistent.^^ Wherever it shall happen that there is a difference in the language between the two copies of a lease, parol evidence is received to show the cause of the er- ror. The party to the lease against whom the inconsistent copy is offered may of course show that the difference or inconsistency between the copy produced in evidence against him and the copy which he has in his possession was the result of an error in copy- ing, or that an alteration was made after he had executed the lease. Where a lease is executed in counterpart, the question may, arise who is to retain the ownership and possession of the orig- inal 1-ease and who is to have the copy or counterpart. Prima 35 Morris v. McKee, 96 Ga. Gil, or of a lease signed by both par- 24 S. E. Rep. 142. ties with the attorney of one of 36 Crane v. Partland, 9 Mich. them for the sole purpose of hav- 493. It has been held that a con- ing a duplicate prepared is no de- tract which was signed by both livery. Lamar Milling & Elevator the parties and left at the office Co. v. Craddock, 5 Colo. App. 203, of an attorney to have a duijlicate 37 Pac. Rep. 950. executed was sufIif;iontly deliv- 3^ Burchcll v. Claris, 46 L. .T. C. ercd. Blanchard v. Blackstone, P. 115, 2 C. P. D. 88, 35 L. T. 690, 103 Mass. 343. On the other hand, 25 W. R. 334. the leaving of a copy of a contract FORM AND EXECUTION OP LEASES. 361 facie, the property in the original indenture of lease is in the lessee and that of the counterpart is in the lessor. If there is an original and a duplicate lease, the original should be deliv- ered to the lessee. The property of the lessee in the original lease is absolute. The expiration of the term by efflux of time or by forfeiture on the part of the lessee confers no title to the orig- inal lease on the lessor as against the lessee. The lessee's right to retain the original lease after the expiration of his term is principally based upon the right he may have to sue on his lease after the term has expired to recover damages for the breach of a covenant occurring before the expiration of the tenn.^^ So a lessor who has determined a lease by re-entry for breach of covenant has no title to the lease as against the lessee.^^ But as against a stranger to the term, a lease and counterpart would doubtless be regarded as one instrument and both would belong to the lessor.*" § 252. The mode of proving a written lease. "Where a plain- tiff sues on a written lease, the rules of evidence applicable to the proof of handwriting are of service. If the lease was signed in counterpart, either party may rely upon the counter- part which is in his possession. Under the general rules, the signature may be proved either by producing an attesting wit- ness, or by producing a witness who was present and, though not an attesting witness, saw the lease signed, or by the evidence of some person who is familiar with the handwriting of the party who is to be charged. If a lease is a conveyance within the statute it may be proved under the statute providing a convey- ance or a transcript thereof, duly certified and acknowledged, in the manner prescribed by law to entitle it to be recorded, is evidence without further proof.*^ Where the plaintiff is not 38 Hall V. Ball, 3 Man. & G. 242, against the tenant for the rent. 3 Scott (N. R.) 577. Houghton v. Koenig, 18 C. B. 235, 39Elworthy v. Sandford, 3 H. & 25 L. J. 218; Roe d. West v. Davis, C. 330. 34 L, J. Ex. 42, 10 L. T. 7 East, 363. The lease and the 654, 12 W. R. 1008. counterpart ought always to be purpose of enabling the tenant to remove timber therefrom may be, under some circumstances, re- f'« Sutton V. Hiram Lodge, 83 Ga. co Kubank v. May & Thomas 770, 10 S. E. 585. Hardware Co., 105 Ala. G29, 17 So. •"'f Johnson v. Hartshorne, 52 N. Rep. 109. Y. 173, 177; Doe v. Miles, 1 Stark, «' Kugel v. Painter, IGG Pa. St. 181 Doe V. Black, 8 C. & P. 464. 592, 31 Atl. Rep. 338. FORM AND EXECUTION OF LEASES. 371 garded as a contract for the sale of the timber and not as a mere lease of land npon which the timber is located. If the principal object of the parties is the removal and sale of the timber, the writing will be regarded as a sale and not as a lease and the rights of the parties will be adjusted accordingly. Thus, where a con- tract leased land with the privilege in the tenant to remove the timber therefrom and where it was apparent that the principal purpose of the parties was the purchase and sale of the timber and not the free occupation and enjoyment of the land, it was held that where the timber was all removed from the land before the end of the term specified in the lease, the right of the lessor to col- lect rent was at end. It would appear that from the intention of parties in such an agreement, the term itself would come to an end when the purpose of the so-called lease was accomplished, but even where the term is expressly extended so that the lessee may remain in possession if he desires to do so, the lessor cannot after the timber is all cut collect rent from the lessee for the balance of the term, though the latter may still remain in posses- sion of the land.^- § 254. Leases terminable on the sale of the premises. Terms for years are not ordinarily terminable by the sale of the prem- ises by the lessor though a contrary- rule is applicable to leases at will. It is competent for the parties to a lease for years to provide by express agreement that the term shall be ended by a sale of the premises by the lessor. Such a provision is frequently very advantageous to a lessor inasmuch as he is thereby enabled to lease for a long term without any danger to himself that he will be prevented from selling his property whenever he may chose to do so because of its occupation by a tenant having a long lease. On the other hand, such a provision may be very disad- vantageous to a tenant abruptly shortening his term at a mo- ment perhaps when his occupation had become very valuable, while during its existence he will be deterred from making im- provements because of the uncertain character of his tenancy. Hence, in justice to the tenant in all cases where his lease is terminable by a sale of the premises, the lessor will be held to the utmost good faith in making the sale. Unless fraud is proved, on the part of the lessor, or in other words, unless it shall appear 62 Baird v. Milford Land, etc., Co., 89 Cal. 552, 26 Pac. Rep. 1084, 372 LAW OF LANDLORD AND TENANT. that the sale is a mere pretence to oust the tenant, mere inade- quacy of price will not render the sale ineffectual. The landlord may sell at any price and to any person, and while these facts may be taken into consideration with other facts in the case to detennine whether the sale was hona fide they are never con- clusive.^^ But where it shall appear to the satisfaction of the court from all the facts and circumstances that the sale by the landlord was merely going through a form of sale without any valid transfer of the legal title for a valuable consideration, but merely for the purpose of bringing the lease to an end, the sale will not terminate the lease.®* As in all questions of good faith or fraud, the range of the evidence to determine the presence of fraud is a wide one. The court ought to have before it all the circumstances, as for example, the relation of the parties who pur- chase to the landlord; the consideration paid, the nature of the use to which the purchaser is to put the premises, and the state- ments and declarations of the parties to the sale. If the sale is made with the intention to defraud the lessee it is not necessary to show that the purchaser was a party to the fraud. It is enough to defeat the sale to show that it was prompted by an attempt to defraud on the part of the landlord. Under a lease which pro- vides that the sale of the land by the lessor in good faith shall terminate the lease, the lease is at once brought to an end as soon as the land is sold. The tenant is thereafter a tenant at sufferance or at will and is liable to the landlord as such. The landlord may treat him as a trespasser and oust him by proper proceedings. The purchaser may, as against the tenant, take immediate possession of the premises though he must allow the tenant a reasonable time to remove his fixtures therefrom. No- c:i Dunn v. Jaffray, 36 Kan. 408, were not a mere subterfuge to 13 Pac. Rep. 781; Wallace v. Bahl- bring the lease to an end. The horn, 68 Mich. 87. 35 N. W. Rep. fact that the sale was for a nomi- 834. A firm composed of several nal consideration was not conclu- members owning premises leased sive, though the smallness of the the same "for the term of and un- consideration was a circumstance til said premises are disposed of which might be considered in Con- or sold by the said firm." It was nection with the other evidence held that the landlord might put to show the faith of the landlord, an end to the lease by the sale of Dunn v. Jaffray, 36 Kan. 408, 13 the premises in good faith to one Pac. Rep. 408. of the members of the firm, if this 64 Ela v. Bankes, 37 Wis. 89. FORM AND EXECUTION OF LEASES. 373 tice neerl not be given by the purchaser to the tenant, but a no- tice by him that he has bought the land, that the lease is thereby terminated and that he takes possession is sufficient.®^ § 255. The option of the lessee to terminate the lease. A lease which is determinable only at the option of the lessee and which, consequently, may continue with his consent and against a protest of the lessor is valid.®® Thus, a lease fpr the term of five years and as much longer as the lessee desires, confers the right upon the lessee to continue to occupy the premises so long as he wishes to do so, and providing he fulfils the conditions of the lease, he may continue during his life time after the expira- tion of the five years.®^ Such leases as this are not open to the objection that they are without consideration on the part of the lessee as to the period during which he elects to remain. The rent received by the lessor during that period is the considera- tion for the promise of the lessor to permit the lessee to remain in possession. These leases are somewhat in the nature of leases at will, and the time or period during which the lessee may con- tinue need not be fixed but may be wholly at his option. So, a lease of land for the manufacture of salt ''for any term of years the lessee may think proper from date," ®* or as long as certain salt works erected thereon should be used for that purpose,®^ or as long as a lessee should keep a furnace and buildings on the land,'" is unquestionably valid. In some cases, from the terms of the lease it is doubtful whether the option to continue the term is with the landlord or with the tenant. This, of course, is al- ways an important question. No general imle can be laid down by which it can be determined. "Whether the option is with the landlord or with the tenant is a matter of construction, though the presumption in most cases, is that the option is with the tenant. Thus, an agreement that a house shall be leased for a term of thirty-one years with, liberty to have the same ended at the end of any third year should it be so desired in which case 65 Aydlett v. Pendleton, 114 N. ss Harner v. Leeds, 25 N. J. Law, C. 1, 18 S. E. Rep. 971. 106. 66 Effinger v. Lewis, 32 Pa. St Hurd v. Gushing, 7 Pick. 367; Myers y. Kingston Coal Co., (Mass.) 169. 17 Atl. Rep. 891, 126 Pa. St. 582, to Cook v. Bisbee. 18 Pick, 24 W. N. C. 223. (Mass.) 527. 6T Sweetser v. McKeney, 65 Me. 225, 227. 374 LAW OP LANDLORD AND TENANT. six months' notice to quit is to be given, and if the tenant desires to have a lease executed for the remainder of the term, it was to be given, confers the option of determining the tenancy on the tenant and not on the landlord.'^ Thus, it is a well settled rule of law that an agreement for a lea^e for a term of seven or four- teen years means that the lessee may have a lease for fourteen 3^ears which shall be determinable at his option at the expiration of seven years, not at the option of the landlord.'- Wliere a lease is granted for seven, fourteen or twenty-one years, the lessee only has the option to determine at which of the above periods the lease shall come to an end.'^ A lease for seven, four- teen or twenty-one years as the lessee shall think proper, is a good lease for seven years, whatever it may be for the fourteen or twenty-one years.'^* Under some circumstances and by par- ticular language a lease may be made to terminate at a particular period or at one of several particular periods, by the joint ac- tion of the parties. If no mention is made as to who shall have the option, the option is usually with the lessee. A lease for twenty-one years determinable at the end of seven or fourteen, if the parties so think fit, is determinable only by the joint as- sent of both parties.^^ If the party who has the option exercises it, the lease is at an end at once for all purposes and the other party is released and any one who may have been a surety is also released. Where a lease was granted for fourteen years with a stipulation that the landlord might, if he so desired, terminate Ti Fallon V. Robins, 16 Ir. Ch. R. the intention of the parties from 422. the word used by them. "Where T2 Powell V. Smith, 41 L. J. Ch. the lease is granted for seven, 734. L. R. 14 Eq. 85, 20 W. R. 602. fourteen or twenty-one years, with- ■••'i Dann v. Spurrier, 3 Bos. & out mentioning at whose option it P. 390, 442, 7 R. R. 797, 802, 7 is determinable, it has been de- , Ves. 231, 6 R. R. 119; Price v. cided that the option is with the Dyer, 17 Ves. 363, 11 R. R. 102. lessee where the lease mentioned 74 Ferguson v. Cornish, 2 Burr. both parties, but it is not stated 1032, 2 Term Rep. 403, n. whether the option of determin- "'• Towell V. Tranter, 3 H. & C. ing it is in either party, or 458, 34 L. J. Ex. C, 11 L. T. 317, whether both parties are required 13 W. R. 145, in which the court to consent for that purijose. It said that it was likely that the is certainly open to contend that parties meant that only one of both are mentioned in order that them should have the option, but (he landlord may have an ootion that the court would have to take as well as the tenant." FORM AND EXECUTION OF LEASES. 37i) it at the end of seven years, on his giving notice of his desire to do so in writing, and he gave notice to quit not expressing his desire to terminate the tenancy under the proviso referring to the lease, it was held that the lease was at an end under the pro- viso, and that a surety of the tenant who had joined in the cove- nant was thereby released.''® It is very probable that in the ab- sence of an express provision annexing the option to continue the lease to the land an option in a tenant to extend a lease or to continue a lease would be regarded as a personal cove- nant which he could not assign. Thus, if the lease provided that it M-ould continue for a certain fixed term of years and so long thereafter as the tenant desired to occupy the premises, or so long as he should desire to carry on a certain business in the premises, the option would be personal to the tenant and could only be exercised by the tenant himself. Such an option, how- ever, may be made assignable or transferable by express lan- guage. Accordingly, a provision that if either of the parties shall desire to extend the lease or to terminate at a specified date, it shall be lawful for them or either of them or their executor or administrator to do so includes not only a personal repre- sentative of the lessor but one to whom he has devised the prem- ises.'^ A lease which gives to the tenant an option to continue its term after a specified date must be reasonably certain in its language as to the extent of the extension or it will not be en- forced in equity by a decree of specific performance. A letting to a yearly tenant and if he should wish a lease that the lessor will grant him one for seven, fourteen or twenty-one years at the same rent, is sufficiently certain for specific performance, and will be considered an optional lease for twenty-one years from the date of its making determinable at the end of seven or four- teen years at the option of the tenant. The landlord has a right to call on the tenant to exercise his option and in default of his doing so, the landlord may determine the tenancy.'^ A lessee of a coal mine for a term of years who has a right to terminate the lease in a certain time by the giving of a written notice and on the expiration of the period of notice the lease is to become -« Giddens v. Dodd, 3 Drew, 485, Hayley, 12 East, 464, 470, 11 R. R. 492, 25 L. J. Ch. 451, 4 W. R. 377. 455. 77 Roe lessee of Bamford, v. 7s Hersey v. Gibbletts, 18 Beav. 174, 23 L. J. Ch. 818, 2 W. R. 206. 376 LAW OF LANDLORD AND TENANT. void provided all arrears of rent shall have been paid and all agreements and covenants performed by the lessee must fully perform all covenants as such performance of covenants by him is a condition precedent to the exercise of his right to de- termine the lease.'® Notice given under a provision in a lease for determining it at a certain period must agree with the notice required in the provision. A substantial compliance is all that is required. It is not necessary that it shall follow the precise language of the lease if the notice given is not contrary to it. A notice which expressly states the desire of the lessee or lessor to determine the lease at the end of a specified period will un- questionably be sufficient. But if the notice is such that from its language it may be inferred that the intention of the person giving it is to terminate the lease under his option it may be sufficient. Hence, a mere notice to quit the premises which reads, "determinable as therein mentioned," is usually sufficient.®" 79 Friar v. Grey, 5 Ex. 597, 15 Jur. 814, affirmed 4 H. L. Cases, 565, 18 Jur. 1036. 80 Giddens v. Dodd, 3 Drew, 485, 402, 25 L. J. Ch. 451, 4 W. R. 377. The cases in England which have placed the option in the hands of the lessee are based on the rule of law that the lease shall be taken l: stronger against Che les- sor, as laid down in Bath's Cases, 6 Co. Rep. 35b. If a contract is made to make a lease for seven, fourteen or twenty-one years, there must be an option in some one to determine the length of the lease. Under the rule just stated that a lease is to be construed most favorably to the lessee it cannot possibly be considered that the option shall be in the lessor. If the provision is made in the lease that it shall be determined at the option of either party, the lessor would be entitled to take advantage of the option, but, where no such provision is in the kase, the usual construction Is that the lessee alone is entitled to continue the term which is most beneficial to him. Dann v. Spur- rier, 3 Bos. N. P. 399-442. In the case of Roe, lessee of Bamford v. Haley, 12 East, 464, the court evi- dently regarded this option to pro- cure an extension of the lease as running with the land. The court said: "The covenants by a lessor that he would renew at the end of his term has been adjudged to run with the land, and to bind the grantee to the reversion. There is no substantial difference in point of construction between the stipulation for extending the term and the stipulation for shorten- ing it. So a covenant to renew at the request of the lessee has been held in equity to run with the estate, and to oblige the lessor to renew at the request of the lessee or executors, there being nothing in the lease to show that the renewal was intended to be confined personally to the lessee, and it being considered that the FORM AND EXECUTION OF LEASES. 377 § 256. Measure of the damages for a failure to execute a lease. The lessee may recover as damages for the owner's fail- ure to execute and deliver a lease as agreed on, the difference be- tween the rent agreed on and the actual rental value of the premises.^^ The lessor may recover as against the lessee for the failure of the latter to accejot a proper lease tendered, the fair and reasonable value of the use of the land for the term, less all revenue or income the lessor may have derived from his own use of the land, or which he might have secured by the use of ordinary- care and effort in letting it to another.*^ The lessee can recover only such damages for a failure on the part of the lessor to execute the lease as he can prove in money. He must prove some pecuniary loss due to the breach of the contract and cannot recover for his disappointment, or for the trouble and in- convenience in securing other premises.^^ A sum of money paid to the lessor by the lessee at the commencement of the negotia- tions for a lease as evidence of good faith on the part of the les- see must be returned to him when, after an inspection of the premises, he refuses to execute a lease and the minds of the par- tics have never met on the terms of the proposed lease.** A de- posit thus paid may be recovered by a lessee as special damages executors were identified with the in it and given to a mere stranger lessee. If the proviso in this case having no interest in it whatever/' is to be construed literally, what si Knowles v. Steele, 59 Minn, will be the consequences? If the 452, 61 N. W. Rep. 557; North lessee or his executors assign, Chicago St. R. Co. v. Le Grand Co., such assignee cannot give the no- 95 111. App. 435. tice, because he is not within the 82 stoker v. Wilson (Tex. 1885), words, but, if any notice is to be Civ. Cas. Ct. Ap. § 10; Massie v. given . on his part, he must pro- State Nat. Bank, 11 Tex. Civ. App. cure it to be given by the lessee 280, 32 S. W. Rep. 797. Only or his executors. And for the nominal damages can be recov- same reason if the lessor dies, his ered by either party under a con- heir or devisee cannot give it, but tract to make a lease if the con- if any notice in such cases is to tract is unenforceable under the be effectual it must be from the statute of frauds. Sausser v. executors or administrators of the Steinmetz, 88 Pa. St. 324, 326. lessor. Now it never could be in- 83 D'Orval v. Hunt, Dud. Law tended that the right of determin- (S. C.) 180. ing the terms should be taken s* Equelina v. Provident Realty from the only person interested Co. of New York, 84 N. Y. Supp. 1014. 378 LAW OF LANDLORD AND TENANT. in addition to tlie general damages if it is alleged as special damages. § 257. The effect of the statute of frauds on leases. The exe- cution of leases is, in some cases, regulated by the provisions of the Statute of Frauds. The English. Statute of Frauds so far as it concerns leases, has been substantially re-enacted in some of the states. In that statute it is provided that a parol lease not to exceed a period of three years from the making thereof shall be valid. In some states no lease for a longer period than one 3^ear shall be valid unless in writing. Under the English Statute in which it is expressly provided that the period of the lease shall be measured from the making thereof leases in futuro have been held valid though for a longer period than three years if the time between the making and entry be included. The same rule has been generally recognized in the United States. Thus, a parol contract for a lease for a term of one year to begin in the future,^^ has been held not to be within the statute. Very much depends upon the language of the local statute. In the American Statutes the expression "from the making thereof" is usually omitted. This is the case in New York where by the statute a parol lease for a term exceeding one year is void. In that state it has been held that a parol lease for a year to commence in the future is not an executory contract, but vests a present interest in the term, and that, this being the case, and the time inter- mediate the making of the lease and its taking effect in posses- sion, being no part of the term, a lease for one year to commence in the future need not be in writing.^^ So it has been held where the statute provides that no action could be maintained on any lease for a longer term than one year or upon any agreement 85 Parker v. Mollis, 50 Ala. 411; Ohio St. 427, 54 N. E. Rep. 473, Atwood V. Norton, 31 Ga. 507; 71 Am. St. Rep. 724; Pinto v. Rin- Stackberger v. Mosteller, 4 Ind. tleman (Tex. 1906), 92 S. W. Rep. 461; Wolf V. Dozer, 22 Kan. 436; 1033. Thomas v. McManus, 64 S. W. Rep. «« Ward v. Hasbrouck, 169 N. 446, 23 Ky. Law Rep. 837; Taylor Y. 407, 62 N. E. Rep. 434, affirming V. Kincaid, 4 Ky. Law Rep. 837; 52 App. Div. 627, 65 N. Y. Supp. Whiting V. Olhert, 52 Mich. 462, 200; Newton v. Musen, 61 N. Y. 18 N. W. Rep. 219; .Jud v. Arnold, Supp. 61; Becar v. Flues, 64 N. Y. 31 Minn. 340, IS N. W. Rep. 151; 518; Jones v. Marcy, 49 Iowa, 188; Briar v. Robertson, 19 Mo. App. Sears v. Smith, 3 Colo. 287; Huff- 56; Bieler v. Devoll, 40 Mo. App. man v. Stark,, 31 Ind. 474 251; Gladwell v. Holconibo, 60 FORM AND EXECUTION OF LEASES. 379 which is not to be perforaied within the space of one year from the making thereof that an oral lease for a year to be begun in the future is valid. '^' § 258. Contracts concerning an interest in land. The Eng- lish Statute of Frauds provides that "no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action is brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other per- son thereunto by him lawfully authorized." The expression "interest in land" as used in the Statute of Frauds has been fre- quently construed in connection with contracts for the leasing of land. Thus a contract to grant a lease of a furnished flat is a contract concerning an interest in land, and the part payment of the rent is not such performance (unless possession is also taken by the tenant) as will take the case out of the statute.^* The ma- terial part of the contract is the occupation of the premises and the hiring of the personal property is an incident thereto. So a contract to lease a house, to make alterations therein and to sell the occupant the furniture and fixtures, is a contract relating to an interest in the land. The object of the contract is the occu- pation of the premises, and the sale of the personal property and the agreement to make alterations are only incidental to it. For these latter things are valuable only so far as they make the occu- pation of the house desirable and convenient.^'-* But an agree- ment by the landlord with his tenant that the tenant may erect 87 Bateman v. Maddox, 86 Tex. to pay, the landlord cannot main- 546, 26 S. W. Rep. 51. Contra, in tain an action against the tenant Emery v. Boston Terminal Co. for a breach of contract to take (Mass. 1901), 59 N. B. Rep. 763. the lease or to recover what he An agreement by which one of the has spent in purchasing the land parties is to purchase land and on and material for the building. i^t erect a warehouse which the Bacon v. Parker, 137 Mass. 309. other is to hire for a term of years ss Thursby v. Eccles, 70 Law J. at a rent which is to be a certain Q. B. 91, 49 Wkly. Rep. 281; Edge percentage of the value of the v. Strafford, 1 Cromp. Jer. 391, 1 house is a lease within the Stat- Tyr. 293; Inman v. Stamp, 1 Stark, ute of Frauds. Hence, where, in N. P. 126. the course of building certain ad- &» Vaughan v. Hancock, 3 C. B. ditions and alterations were made 766, 16 L. J. C. P. 1. in it for which the tenant agreed 380 LAW OF LANDLORD AND TENANT. buildings on the premises wMcli are to be paid for by the hind- lord at the end of the term being in substance a sale of fixtures which are personal property is not an agreement in respect to, or concerning an interest in land within the statute."" The mere license to use premises for a particular purpose is not within the statute. Thus, an agreement by which the owner of a hall per- mits it to be used for theatrical or other entertainments, he re- taining the full control of the hall and premises, in which it is located .is a license and not a contract for the leasing, sale and conveyance of an interest in the land."^ An agreement by which an owner permits another person to live rent free on his land on condition that the owner should have a share of the crops is not an agreement concerning interest in land."- An agreement by which an owner of a dock permits the same to be let to parties requiring the same for repair of vessels, on the payment of en- trance money for the use of the dock, which is to be forfeited if the vessel does not enter at the date specified, is not an interest in land under the statute and is not required to be under seal.®' The assignment of a parol lease from year to year must be in writing."* And a contract to procure an assignment of a lease of a house is a contract for an interest in land and is within the statute though it was made by one who was neither a lessee nor had any interest under the lease. "^ An agreement by which the tenant was to surrender his tenacy to another, and to prevail upon the landlord to accept the other as his tenant is the sale of an interest in the land."^ A covenant restricting the use of land 90 South Baltimore Co. v. Muhl- & P. 397; Waddington v. Briston, bach, 69 Md. 395, IG Atl. Rep. 117, 2 Bos. & P. 452, 2 N. R. 355. 119. 03 Wells V. Kingston-upon-Hull- 81 Johnson v. Wilkinson, 139 Corporation, 44 L. J. C. P. 257, Mass. 3, 29 N. E. Rep. 62. As to L. R. 10 C. P. 402, 32 L. F. 615, 23 the sale of fixtures not being with- W. R. 562. in the statute, see Hullen v. Run- »* Botting v. Martin, 1 Camp. der, 1 C. M. & R. 266, 275; Lee v. 318; Doe d. Hughes v. Jones, 9 Gaskell, 1 Q. B. Div. 700; Greene Mee. & Wei. 372, 1 D. (N. S.) 352, V. Cole, 2 Wm. Saund. 259c, 259d. 12 L. J. Ex. 265, 6 Jur. 302. So a contract by a tenant to erect o^ Horsey v. Graham, 39 L. J. imjirovoments on land being a C. P. 58, L. R. 5 C. P. 9, 21 L. T. contract for labor and materials is 530, 18 W. R. 141. not within the statute. Pinner v. o" Cocking v. Ward, 1 C. B. 868, Arnold, 2 C. M. & R. 613. 5 L. J. C. P. 24.5. »2 Poulter V. Killingbrick, 1 Bos. FORM AND EXECUTION OF LEASES. 381 is within the statute of frauds. An agreement the sole object of which is the creation of such a covenant, would therefore be in- valid unless in writing. So, too, an agreement to make' a lease in the future, the intention of which is that there shall be in- serted in the lease a covenant which in effect shall provide that the lessee shall sell only the goods produced by the lessor, is within the statute and if in parol, is not enforcible.*^ A contract by a landlord who has leased his premises in writing to lay out certain money in making improvements upon them, the tenant to pay an increased rent, is a mere collateral agreement. It is not a contract concerning or relating to an interest in land; because the tenant by it receives no additional interest in the land. All the landlord agrees to do is to remove certain articles of personal property and substitute others in their place in the way of alter- ation. Nor does the agreement that the tenant is to pay an addi- tional sum w^hich is called rent alter the case, for this is not rent in the legal sense inasmuch as it could not be distrained for nor could the landlord re-enter for its non-payment. The court also held that there was no presumption that the parties by this agreement intended to make a surrender of the old lease and to grant a new lease but that all they meant was making a personal contract to pay and receive a certain sum per year.^* So upon the same principle where the premises at the time of the execu- tion of a written lease are in bad repair and the landlord agrees to put them in a condition fit for habitation his oral promise is collateral to the writing and it is not an agreement for or con- cerning an interest in the land.^^ So, in general it may be laid down as a rule that all contracts to repair or to furnish a house which are collateral to a written lease and which are made sub- sequent thereto, and for which the written lease is a consideration are not within the statute. The reason for this is that they did not convey an interest in the land because the tenant has al- ready acquired all the interest in the land which he had agreed 9T Mausert v. Christian Peigen- term of years must be in writing, span, 68 N. J. Eq. 671, 63 Atl. Rep. King v. Kaiser, 23 N. Y. Supp. 21, 610, 64 Atl. Rep. 801. A parol con- 3 Misc. 523, 52 N. Y. St. Rep. 487. tract to make a lease for years is as Donellan v. Read, 3 B. & Ad. within the statute of frauds. 899. Smith V. Phillips (N. H.), 43 Atl. so Mann v. Nunn, 43 L. J. C. P. Rep. 183. An assignment of rent 241, 30 L. T. 526. due under a written lease for a 382 LAW OF LANDLORD AND TENANT. to receive and these subsequent contracts are usually made merely for the purpose of enabling him more conveniently to enjoy that interest.^ The question has been agitated v^^hether an oral lease which is good under the second section of the statute is valid, under the fourth section which refers to contracts ' ' con- cerning an interest in land." It cannot be denied that a lease is a contract concerning an interest in land, and hence, if the fourth section is applicable parol leases for any term are void though by the second section of the statute parol leases not ex- ceeding three years are valid. The result of this construction would be that a lease which would be valid by one section would be void by another. In endeavoring to reconcile this apparent inconsistency the English courts have held that parol leases not exceeding three years from the making were valid and that they might be sued upon under their character of leases but that be- fore the entry of the tenant they did not confer the right on the lessor to sue for damages for not taking possession.- The dis- 1 Morgan v. Griffiths, 23 L. T. 783, L. R. C. Exch. 70; Angel v. Duke, 44 L. J. Q. B. 78, L. R. 10 Q. B. 174, 32 L. T. 23, 23 W. R. 307. See, also, to the same effect, Hoby V. Roebuck, 2 Marsh. 433, 7 Taunt. 157, 17 L. R. 477; Nach- bour V. Wiener, 34 111. App. 237. The following agreements have been held to be contracts con- concerning an interest in land: An agreement to build a store and have it ready for occupancy on a certain date and then to lease it for a term of years. Eaton v. Whitaker, 18 Conn. 222, 44 Am. Dec. 586; Bacon v. Parker, 137 Mass. 309. An agreement that a party should occupy a meadow for three years as a compensation for clearing it. Scoten v. Brown, 4 Har. (Del.) 324. A written con- tract to sell a stock of goods, the seller agreeing orally to give the buyer a three years' lease of the store room. Strehl v. D'Evers, 66 111. 77. A contract conveying the right to use for the purpose of worship a church edifice when the same is not used by the church. Brumfield v. Carson, 33 Ind. 94, 5 Am. Rep. 184. A contract for a pew in a church for a period ex- tending beyond one year. First Baptist Church v. Bigelow, 16 Wend. (N. Y.) 28. The following contracts have been held not to relate to an interest in land: A contract with an owner to work land for a part of the proceeds. Himesworth v. Edwards, 5 Har. (Del.) 376. A contract giving the right to use land as a play-ground in connection with a school liouse, so long as the school house should stand. District Township of Cor- win V. Morehead, 43 Iowa, 466. An oral agreement to pay for board and lodging. White v. May- nard, 111 Mass. 250, 50 Am. Dec. 28. - Edge V. Strafford, 1 Cromp. & Jer. 391. FORM AND EXECUTION OF LEASES. 383 tinction is of no value because a lease after the lessee enters is just as much an interest in land as it was before. And if it is invalid in part it must be totally invalid. The true construction of the statute seems to be a parol lease not exceeding three years is good from its beginning and will support an action against the lessee for rent though no entry has been made upon it.^ § 259. Extensions and renewals of leases. A tenant who has the right to a renewal of his lease must exercise that right accord- ing to the provisions of his lease. His right to a renewal is a part of his original contract. Though it is called a right to a re- newal it is not strictly speaking a right to create a new lease but a right to extend the old lease. Hence, if the tenant exercises his right to a renewal according to the provisions of his lease his term is extended so as to bind the lessor without any action, affirmance or extension on the part of the lesvsor. And the ex- tension is by virtue of the original lease. There can be no ques- tion of the application of the Statute of Frauds under such cir- cumstances. The holding under the new lease is protected by the fact that the old lease is in writing. The original lease creates and defines the term! If the tenant elects not to exercise his right to extend the lease then the term is at an end. If he elects to extend the lease then the extension is merely a prolongation of the term of the first lease,* and not the creation of a new term. Thus, it has been held in connection with a holding over after the tenant has given a notice of an intention on his part to renew that the notice itself is not the instrument under which he holds but that the tenant is holding under the original lease.^ If, how- ever, during the term or at the termination of a lease, even though the lease gives the tenant an option for an extension, the parties shall make a new or supplemental lease, the possession under the former lease will not take the new lease out of the statute." "Where the tenant holds over after the expiration of a written lease it will be presumed that his holding over is under the former lease. If the new lease is void because in parol the s Bolton V. Tomlin, 5 Ad. N. E. Sheppard v. Rosenkrans, 1(J9 Wis. 856. 58, 85 N. W. Rep. 199. 4 Norton v. Gale. 95 111. 533. 35 s Baltimore & O. R. Co. v. West, Am. Rep. 173; McClelland v. Rush, 57 Ohio St. 161. 49 N. E. Rep. 344. 150 Pa. St. 57. 24 Atl. Rep. 354; e Gladwell v. Holcomb. 60 Ohio St. 427. 54 N. E. Rep. 473. 384 LAW OF LANDLORD AJN^D TENANT. landlord may treat him as a tenant at will or sufferance and liis possession will not take the new lease out of statute/ and the fact that the parties in making a new lease called it an extension of the former lease does not alone take the case out of the stat- utes. Thus, where a lease was made between parties to an ex- isting lease by which the terms of the lease were changed the old lease was not referred to and portions of land included in it were not included in the new lease and the terms and privileges were entirely different it was held that this was not an extension of the lease but a new contract and being in parol it was within the statute and it was not binding unless signed by the lessor.* But, an agreement for the leasing of premises for a period short of a year with an option in the tenant for an extension or re- newal of the lease for a period exceeding a year not evidenced by writing, is not within that clause of the Statute of Frauds which renders invalid a contract in parol not to be performed within a year.® § 260. Leases by parol which are void under the statute. By the Statute of Frauds in many of the states leases for a term exceeding one year not executed in writing are void.^° Hence, if the lease is for a term short of a year it is valid though not evi- denced by a writing. An agreement to lease property with the privilege of a renewal for two years not in writing, is void, un- 7 Crawford v. Wick, 18 Ohio St. Rep. 51; Leavitt v. Stern, 55 111. 190, 90 Am. Rep. 103. App. 416; Butler v. Threlkeld, «Bulles V. Noyes, 75 Tex. 540, 117 Iowa, 116, 90 N. W. Rep. 584; 12 S. W. 397. Creighton v. Sanders, 89 111. 543; 9 Ward V. Hasbrouck, 169 N. Y. Ragsdale v. Lander, 80 Ky. 61 ; 407, 62 N. E. Rep. 434, affirming Hand v. Osgood, 107 Mich. 65, 64 65 N. Y. Supp. 200, 52 App. Div. N. W. Rep. 867, 30 L. R. A. 379; 627. Phipps V. Ingraham, 41 Miss. 256; 10 Hammond v. Winchester, 82 Herrmann v. Hydeman, 74 N. Y. Ala. 470, 2 So. Rep. 892; Hosli v. S. 862; Geiger v. Braun, 6 Daly Yokel, 57 Mo. App. 622; Leavitt (N. Y.) 506; Wilder v. Stace, 15 V. Stem, 55 111. App. 4l6; McCroy N. Y. S. 870, 61 Hun, 233; Id., 16 V. Toney, 66 Miss. 233, 5 So. Rep. N. Y. S. 382, GO Hun, 582; Briles 392, 66 Miss. 233; Carney v. v. Pace, 13 Ired. (N. Car.) 579; Mosher, 97 Micfi. 554, 56 N. W. Wallace v. Scroggins, 17 Oreg. 476, Rep. 953; Hayes v. Arrington 21 Pac. Rep. 558; Sausser v. Stein- (Tenn.), 68 S. W. Rep. 44; Ganter metz, 88 Pa. St. 324; Porter v. V. Atkinson, 35 Wis. 48; Bateman Groden, 5 Yerg. (Tenn.) 100. V. MaJdox, 86 Tex. &46, 26 S. W. FORM AND EXECUTION OF LEASES. 385 der the statute." Elsewhere it is provided by the statute that a lease for more than three years must be in writing, and hence, a parol lease for five years is invalid. ^^ Though a parol lease for more than three years is void, a lessee who enters becomes a tenant at w'ill for the first year and after that on payment of rent by the year, a tenant from year to year." Parol leases for terms less than three years from the making thereof are valid under the statute of frauds and either party can pursue any remedy thereunder which may be conferred upon him by virtue of their character as leases. They do not, however, confer upon the lessor the right to sue the lessee for damages for not taking possession, and prior to the entry upon the premises by the les- see, the whole estate and right of possession remain in the lessor, the lessee having merely an interesse termini and nothing more.^* The operation of the statute of frauds as to the duration of leases is prospective. The statute regards only the time which the lease has yet to run. Thus, where a lease is to run from year to year, so long as all the parties please, although when six or seven years are past it may be said to be, looking backward, an oral lease for that number of years, still the lease is good, as the statute has reference only to oral leases for a certain and defi- nite number of years to come.^^ But this rule does not apply to leases from year to year, for and during a fixed period of time which exceeds the statutory limit.^® 11 Rosen v. Rose, 2 Ann. Cases, son v. Albertson, 51 Minn. 333, 53 194, 68 N. Y. St. Rep. 370, 34 N. Y. N. W. Rep. 642. Supp. 467, 13 Misc. Rep. 565, 2 " Edge v. Stafford, 1 Cr. & J. Ann. Cases, 194, 68 N. Y. St. Rep. 391; Ryley v. Hicks, 1 Str. 651; 370. Union Banking Co. v, Gittings, 45 12 Crosby v. Wadsworth, 6 East, Md. 181, 197. 602, 2 Smith, 559, 8 R. R. 556; i^ Legg v. Strudwick, 2 Salk. McClelland v. Rush, 11 Pa. Co. 414; Birch v. Wright, 1 T. R. 378; C. R. 188. Raynor v. Drew, 72 Cal. 307; Robb "Richardson v. Gifford, 3 N. & v. San Antonio St. Rep., 83 Tex. M. 325, A. & E. 52, 3 L. K. J. B. 392, 18 S. W. Rep. 707. 122; Beale v. Sanders, 3 Bing. N. i« An assignment of a lease C. 850, 5 Scott, 58, 3 Hodges, 147, v/hose unexpired term is longer 6 L. J. C. P. 283, 1 Jur. 1083. But than a year is within the statute, it has been held that a lease void Chicago Attachment Co. v. Davis under the statute cannot be used Sewing Machine Co. 111. , for the purpose of establishing a 31 N. E. Rep. 438. An oral lease tenancy from year to year. John- of farm land which requires the 386 LAW OF LANDLORD AND TENANT. § 261. The character of the writing. The writing which is required to take the case out of the statute need not have been executed contemporaneously with the transaction/" Any writ- ing executed by either of the parties intended to establish a contract may be given in evidence as a memorandum under the statute with parol evidence of conversations between the parties to the lease so far as is necessary to explain the subject matter.^' Thus, where the parties to a proposed lease have been negotiating for some time and the purpose of the use of the ground was for strawberry culture, a letter written by the tenant to the land- lord asking whether he could have the land on the terms offered, to which the landlord replied, "set your strawberries," was held to be a sufficient memorandum to take the case out of stat- ute.^' So, also, letters,-'' and telegrams,-^ if signed by the parties to be charged may be sufficient evidence of a written contract within the meaning of the statute though they may have to be supplemented by parol evidence or by the proof of other writing not signed.-- The writing, however, in order to be operative as a memorandum, must be something more than a mere proposal for a tenancy. The writing must describe the property with reasonable certainty,-^ the duration of the term,-* the rent to tenant to sow it in wheat, whose v. Marquette, etc., Co., 32 Mich, term is one year from the spring, 274; White v. Hay, 72 L. T. 281. is invalid on account of the fact 21 Palmer v. Marquette, etc., Co., that the tenant has the implied 32 Mich. 274. right to enter on the land three 22 Loomer v. Dawson, Cheeves months after the end of the year (S. Car.) 68; Buxton v. Rust, L. to reap the crop. Carney v. R. 7 Exch. 1; Barker v. Allen, 5 Mosher, 97 Mich. 564, 56 N. W. H. & N. 61; Smith v. Neale, 2 Com. Rep. 935. Bench (N. S.) 67; Reuss v. Picks- 17 Learned v. Wannemacher, 9 ley, L. R. I. Exch. 342; Warner v. Allen (Mass.) 416. Willington, 3 Drew, 523, 25 L. J. i« Shippey v. Derison, 5 Esp. 10; Ch. 662, 4 W. R. 531, 2 Jur. (N. T.owther V. Carll, 1 Vem. 221; Sul- S.) 433; Felthous v. Bindley, 11 h van's Estate, 23 L. R. Ir. 255. C. B. (N. S.) 869; Gibson v. Hol- 19 Lindley v. Tibbal, 40 Conn. land, L. R. 1 C. P. 1. 522. 23 Lancaster v. De Trafford, 31 20 Alabama Gold L. L Co. v. L. .L Ch. 554; Dolling v. Evans, Oliver, 82 Ala. 417, 2 So. Rep. 443; 15 W. R. 394; Ogilvie v. Foljambe. Tallman v. Franklyn, 14 N. Y. 17 R. R. 13, 3 Mer. 53. 584; Parkhurst v. Van Cortlandt, 2+ Bayley v. Fitzmaurice, 9 H. L. 14 .Johns. (N. Y.) 15; Gibson v. Cas. 78, 6 .Tur. (N. S.) 124. 3 L. T. Holland, L. R. 1 C. P. 1; Palmer 69. 8 E. & B. 664; Clinan v. Cook, FORM AXD EXECUTION OF LEASES. 387 be pa.id,-^ and the names of the parties.-® Though parol evidence will be received in connection with the writing in order to ex- plain it by showing the facts or circnmstances by which its exe- cution was surrendered, yet the terms necessary under the stat- ute to be inserted in the memorandum cannot be supplied by parol. A memorandum of this character to take the case out of the statute, must be wholly in writing and cannot be shown partly in writing and partly by parol.-' Letters and other com- munications passing between the parties during the negotiations for a lease may be connected by parol evidence even where they do not refer to one another and where they are thus connected they may constitute a sufficient memorandum in writing of an agreement to make a lease to satisfy the statute of frauds. ^^ Thus, a letter which stated that the term was to be for twelve years but not mentioning the date of its commencement and sug- gesting certain covenants to be similar to those conditions in another lease is not sufficient as a memorandum.-^ For an exec- utory contract for a lease does not satisfy the provisions of the statute of frauds, unless it can be collected from it on what date the term is to begin. There is no presumption that the term is to commence on the date of the agreement in the absence of proof to that effect.^" If the commencement of the term can be gathered from the agreement considered as a whole, which may be supplemented by evidence of the date when the tenant went into possession, the memorandiun may be sufficient to satisfy the statute."^ The statute requires signing, but its requirement is complied with by the insertion of the name in the instrument in any portion of it in such a manner as to authenticate it.'- 1 Sch. & Lef. 22; Hughes v. Parker. 2- stead v. Dowker, 10 Ad. & El. 8 Mee. & Wei. 244; Gordon v. 57. Trevelyan, 1 Price, 64; Dolling v. s'^ Bauman v. James, L. R. 3 Ch. Evans, 15 W. R. 394; Phelan v. 508, 18 L. T. 424, 16 W. R. 877. Tedcastle, 15 L. R. Ir. 169. -'^ Cartwright v. Millar, 36 L. T. 25 Wain V. Warlters, 5 East, 10. 398. 28 Champion v. Plummer, 5 Esp. -^^ Marshall v. Berridge, 51 L. J. 240; Lang v. Henry, 54 N. H. 57; Ch. 329, 19 Ch. D. 233, 45 L. T. Williams v. Lake. 2 E. & E. 349; 599, 30 W. R. 93, 46 J. P. 279. Williams v. Jordan, 46 L. J. Ch. si Lander v. Bagley's Contract, 681, 6 Ch. D. 517, 26 W. R. 230; 61 L. J. Ch. 707, 1892, 3 Ch. 41, 67 Warner v. Willington, 3 Drew, L. T. 521. 523. 32 Ogilvie v. Foljambe, 3 Mer. 53. 388 LAW OP LANDLORD AND TENANT. But the mere insertion of a name of a party being written in the body of an instrument by himself is not a sufficient signing under the statute, in the absence of evidence that proves he in- tended ^^ this insertion of his name to be a signature.^* An agreement for a lease though signed by both parties is not valid under the statute of frauds, so that it can be specifically per- formed where it was not intended to be a final contract and so expressly given, "subject to the preparation and approval of a formal contract. ' ' ^^ § 262. Effect of performance in taking tlie lease out of the statute. A part performance of an oral lease by the lessee by his entry, making improvements and paying rent, will take the case out of the operation of the statute of frauds to a certain ex- tent. The entry of the tenant under a lease which is invalid under the statute of frauds creates a lease at will which is turned into a lease from year to year upon the landlord's accept- ing rent by the year.^® So the payment of rent by a tenant in possession at an increased rate is a sufficient part performance 17 R. R. 13; Caton v. Caton, 56 L. J. Ch. 886, L. R. 2 H. L. Cases, 127, 6 W. R. 1. »3 Stokes V. Moore, 1 Cox, 219. 34 Under the English statute of frauds an agreement to make a lease must be signed at the end thereof (Selby v. Selby, 3 Mer. 2, 17 R. R. 1), or the name of the party to be charged must have been inserted in some place in the instrument in such a way as to authenticate it. Ogilvie v. Fol- jambe, 3 Mer. 53, 17 R. R. 13; Propert v. Parker, 1 Russ. & M. 625; Caton v. Caton, 36 L. J. Ch. 886, L. R. 2 H. L. Cas. 127, 16 W. R. 1. 35 Winn V. Bull, 47 L. J. Ch. 139, 7 Ch. D. 29, 26 W. R. 230. Where the statute requires "an agree- ment made in writing signed by the parties thereto," a writing which is not signed is invalid. Combs V. Midland Transfer Co., 58 Mo. App. 112. A writing which is subsequently amended by parol in respect to its details does not comply with the statutes. Wiess- ner v. Ayer, 176 Mass. 425, 57 N. E. Rep. 672. 36 stantz V. Protzman, 84 111. App. 434; Donovan v. Brewing Co., 102 Mo. App. 427, 429, 76 S. W. Rep. 175; Bless v. Jenkins, 129 Mo. 647; Nelson v. Brown, 140 Mo. 580; Hosli v. Yokel, 58 Mo. App. 169; Tiefenbrine v. Tiefenbrine, 68 Mo. App. 253; Davis v. Bald- win, 66 Mo. App. 577; William Wicke Co. v. Kaldenburg Man- ufacturing Co., 46 N. Y. Supp. 937, 21 Misc. Rep. 79; Clarke v. Cin- cinnati, 1 Ohio Dec. 10, 1 Jo. 53; Grant v. Ramsey, 7 Ohio St. 157; Moore v. Beasley, 3 Ohio, 294; Wallace v. Scoggin, 17 Oreg. 476, 21 Pac. Rep. 5.^>8; Doe d. Brammell v. Collinge, 7 C. B. 939, 18 L. J. C. P. 305, 13 Jur. 791 FORM AND EXECU-nON OP LE.^ES. 389 on an agreement for a lease to satisfy the statute of frauds." In any ease the performance which will take a parol lease out of the statute of frauds and make it a valid lease so far as it has been performed, must be a performance as will prevent the per- forming party from being placed in his former position.^® A lease which is within the statute of frauds, executed by an agent without authority in writing, may be ratified by the owner, but to avoid the operation of the statute of frauds, the ratification ought to be in writing. It seems that the mere knowledge of the principal that the property has been leased by an agent for a term which is within the statute, or his action in receiving rent, or permitting improvements to be made by the tenant, is not suf- ficient to take the lease out of the statute. But the oral ratifi- cation of the lease of an agent made without authority, gives the tenant an estate at will which under the general rule becomes an estate from year to year by possession from year to year, and the payment of a yearly rent.''' The receipt of rent by the bene- ficiary of a trust after the expiration of the lease which gave the tenant a right to renew is not binding on the trustee. The ac- tion of the beneficiary is not such a performance of the covenant to renew as will take the case out of the statute if it be held that the statute applies. Particularly would this be true where the trustees had refused to renew the lease and her action was without their knowledge or authority.*" § 263. The recording of leases. In almost every state of the Union it is required by statute that transfers of land, or of any interest therein, including leases, except for certain short terms, shall be recorded in the county in which the premises are located. These statutes also provide that no instrument unless it is ac- Imowledged, shall be admitted to record. Their object is to se- cure to the person claiming under the recorded instrument the priority over subsequent purchasers or incumbrancers to which 37 Nunn V. Fabian, L. R. 1 Ch. ss Merchant's State Bank of App. 35; Miller v. Sharp, 6S Law Fargo v. Ruettel, 12 N. D. 519, 97 J. Ch. 322, 1 Ch. 622, 80 L. T. N. N. W. Rep. 853, 855. S. 77, 47 Wldy. Rep. 268. The •■?9 McDowell v. Simpson, 3 Watts contrary has been held, however, (Pa.) 129. in the case of a tenant who pur- .^o Winslow v. Baltimore & O. chases the land occupied by him R. Co., 188 U. S. 646, 23 Sup. CL by a contract in parol. Lewis v. 443, 47 L. ed. 635. North (Neb.), 87 N. W. 312. 390 LAW OF LANDLORD AND TENANT he is entitled and at the same time to protect subsequent bona fide purchasers for value against secret liens and contracts of Avhich they have no knowledge. If a lease required by the stat- ute to be recorded is not recorded, it is void as against all sub- sequent purchasers in good faith and for value, not having ac- tual notice of its existence, whose conveyances are duly recorded before it. The terms of the statute differ in respect to the leases which must be recorded.'*^ In some of the states it has been ex- pressly provided that no estate in land exceeding in duration a period specified shall pass unless the conveyance thereof shall be acknowledged and recorded.*- In the absence of such a stat- ute an unrecorded lease, otherwise valid, is good between the parties to it.*^ For the recording is no part of the execution of 41 In California all leases for more than one year (Odd Fellows' Sav. Bank v. Banton, 46 Cal. 603; Jones V. Marks, 47 Cal. 242) must be recorded. In Kentucky five years. Locke v. Coleman, 4 T. B. Mon. (Ky.) 315. In Louisiana an agreement not to sublet must be recorded. Arent v. Bone, 23 La. Ann. 387, 388. In Massachusetts, by Pub. St. c. 120, § 4, a lease for seven years or more. Collins v. Piatt (Mass. 1902), 63 N. E. Rep. 946; Chapman v. Gray, 15 Mass. 439, 444; Toupin v. Peabody, 1G2 Mass. 473, 39 N. E. Rep. 280. In New Jersey leases for two years or more. Lembeck Co. v. Kelly, 63 N. J. Eq. 402. In New York lor three years and upwards. 1 R. S. 762, § 38; Jokinsky v. Mil- ler, 88 N. Y. Supp. 928; Beebe v. Coleman, 8 Paige (N. Y.) 392. In Pennsylvania leases for less than twenty-one years, if accompanied by possession, need not be re- corded. Williams v. Downing, 18' Pa. St. 60. See City Council of Charleston v. Page, S.peers (S. Car.) Eq. 159. In Vermont a lease for more than one year. Buswell V. .Marshall, 51 Vt. 87. In Wa.sh- ington an assignment of a lease need not be recorded. Tibbals v. Iffland, 10 Wash. 451. A term to begin in futuro, though for less than seven years, is within a stat- ute requiring leases for more than seven years to be recorded if the tei-m is to endure "for more than seven years from the making thereof." Chapmon v. Gray, 15 Mass. 439, 444. By statute, in Ohio, leases of surplus water of the canals and of land connected therewith must be deposited and recorded in the office of the board of public works. Emmitt v. Lee, 50 Ohio St. 662, 35 N. E. Rep. 794. A lease for a term of ten years must be recorded under the stat- ute. Westchester Trust Co. v. Plobby Bottling Co., 185 N. Y. 577, 78 N. E. Rep. 1114, affirming 102 App. Div. 464, 92 N. Y. Supp. 482. 42 Van Ness v. Hyatt, 28 Fed. Cas. 16,867, 5 Cranch, C. C. 127, affirmed in 13 Peters (U. S.) 294, 10 Law. ed. 168; Anderson v. Critcher, 11 Gill & J. (Md.) 450, 32 Am: Dec. 72. 43 Barnum v. Landon, 25 Conn. 137, 149; Johnson v. Phoenix Life Ins. Co., 46 Conn. 92; Lake v. FORM AND EXECUTION OF LEASES. 391 the leaso but is only a precaution which is intended to protect those who may be injured by the subsequent conduct of the par- ties to it.^* An unacknowledged and unrecorded lease may be valid as against persons not parties to it if they shall have actual or constructive notice of it. The possession of the lessee under an unrecorded lease is constructive notice not only of possession but of the title and rights of the lessee to an intending lessee or pur- ichaser.*^ AVhere a statute requires actual notice of a lease to be given, constructive notice is not enough. In such a case, by ac- tual notice is meant express information communicated to, or personal service of a copy of the lease upon the person inter- ested.^® § 264. The construction of the statutes requiring record of leases. These statutes are remedial in their character, and upon general rules and principles of statutory construction, ap- plicable to remedial statutes their general puipose and intention are to be given etfect to in all cases which are reasonably within their terms. The inclination of the courts is to extend their Campbell, 18 111. 106; Wilhelm v. Mertz, 4 G. Greene (Iowa> 54; Anthony v. New York P. & B. R. Co., 162 Mass. 60, 61, 37 N. E. Rep. 780; Bramhall v. Hutchinson (N. J. 1886), 7 Atl. Rep. 573; Thomas' Lessee v. Blackemore, 5 Yerg. (Tenn.) 113; Buswell v. Marshall, 51 Vt. 87; Smythe v. Sprague, 149 Mass. 10; Earle v. Fiske, 103 Mass. 491; Ladnier v. Stewart (Miss. 1905) 38 So. Rep. 748. 44 Barnum v. Landon, 25 Conn. 137, 149. A statute providing that unrecorded deeds of lease shall be Invalid as to parties without notice does not invalidate them between the parties, or against a person not claiming an interest in the land. Anthony v. New York P. & B. R. Co., 162 Mass. 60. 37 N. E. Rep. 780. In :\Iassa- chusetts it seems to have been a rule of practice that a deed must be recorded to be admissible in evidence. Where there was no evidence of actual possession it was held in an action of trespass that an unrecorded deed of wild land was not such evidence of possession as would enable the plaintiff to maintain his action. Estes V. Cook, 22 Pick. (Mass.) 293. AVhere a lessee under a lease for a term sued a railroad com- pany for damages caused by the destruction of building by fire caused by sparks from the defend- ant's locomotives, record at any time before the trial was finished, or perhaps before judgment was rendered, is sufficient. Anthony v. New York, etc., Co., 162 Mass. 60, 62, 37 N. E. Rep. 780. ■T. Wilhelm v. Mertz, 4 G. Greene (Iowa) 54, 55; Uhl v. May, 5 Neb. 157; Weaver v. Coumbe, 15 Neb. 167, 170. ■""' Hoping V. Burnam, 2 G. Greene (Iowa), 39: Wilhelm v. Mertz, 4 G. Greene (Iowa) 54, 56. 392 LAW OP LANDLORD AND TENANT. operation so far as may be consistent with sound principles of construction.*'' The term of years mentioned in a statute leases for wliich must be recorded means not only the term directly created ah initio by the lease but also any possible term which may be created by an extension, or a renewal or otherwise.*^ A lease for a term of years is a conveyance of lands to a purchaser of the same which is entitled and required to be recorded. A lessee is unquestionably a purchaser, for there are but two ways in which a right to the possession of land can be acquired, viz., either by descent or by purchase. Obviously a lessee does not take by descent but by purchase which occurs where a man takes land or an interest in land by his own act or agreement.** So, in construing statutes which permit or require "conveyances" to be recorded, it has generally been held that leases for terms of years which by the statute of frauds are required to be in writing are "conveyances" within the meaning of the statutes.^'' *7Toupin V. Peabody, 162 Mass. 473, 476, 39 AtL Rep. 280. *8 A statute which, provides that a lease for seven years from the making must be recorded means the utmost term which the lessee can claim under the lease whether the instrument directly demises a term for seven years or longer than seven years, or provides for its indirect creation by an agree- ment for a renewal at the option of the lessee. The intention of the statute is that a 1)0710 fide pur- chaser may rely with certainty upon the fact that no instrument which does not appear of record, and of which he does not have ac- tual notice, can give a lessee the right to any longer term than seven years from the mailing of the instrument. A lease for five years with the privilege of a re- newal for five years more is as much within the purview of the statute, and of the mischief which it was meant to remedy, as a lease for a term of ten years and the reasons for requiring the latter to be recorded apply equally to the former so far as the renewal term is concerned. Hence it fol- lows that any extension, or second term, or an agreement for a re- newal which will carry the pos- session of the lease to more than seven years from the making of the instrument, is within the meaning of the statute. Toupin V. Peabody, 162 Mass. 473, 476, 39 N. E. Rep. 280. ■in Spielmann v. Kleist, 36 N. J. Eq. 199, 202. See also, Milliken V. Faulk, 111 Ala. 658, 660, 20 So. Rep. 594. And see contra, Bram- hall V. Hutchinson (N. J.), 7 Atl. Rep. 873. 60 Jones V. Marks, 47 Cal. 242; Commercial Bank v. Pritchard, 126 Cal. 600; Garber v. Gianella, 98 CaL 527; Talley v. Alexander, 10 La. Ann. 627; Summer v. Clark, 30 La. Ann. 436; Chapman v. Gray, 15 Mass. 439; Toupin v. Peabody, 162 Mass. 473, 476, 39 Atl. Rep. 280; Spielmann v. Kleist, 36 N. J. FORM AXD EXECUTION OF LEASES. 3'93 Accordingly it is apparent that the word "deeds" in a statute which enacts that deeds shall be invalid or void as to subsequent purchasers or incumbrances unless they are recorded, evidently includes all instruments by which an interest in, or the title to land, may be in any way affected either in law or in equity. But the word does not include wills or leases which are by implica- tion exempt from the necessity of being recorded by statut^.'^^ § 265. The effect of recording a lease upon the rights of a subsequent lessee. A recorded lease is constructive notice to a subsequent prospective lessee of the premises in his dealings with the lessor to the same extent and with the same effect as in the case of any other purchaser. So, too, a lessee may acquire such actual notice of a prior unrecorded lease as will estop him to dispute the rights of a lessee in possession and this notice will have precisely the same effect, so far as he is concerned, as would the lease being recorded.^- The subsequent lessee who finds a person in possession claiming as a lessee is at once put upon inquiry to ascertain the occupant's rights and he will be presumed thenceforth to have notice of all facts which he might have ascertained by inquiry of the lessor with whom he is dealing or by inquiry of the person claiming as a lessee. Where a les- see executes a written lease, which in express terms is made sub- ject to the rights af a prior lessee and he also knows what the latter 's rights were, the lessee takes his lease subject to all the rights of the prior lessee, including his right to a renewal.^' And though the later lessee himself have no knowledge of the existence of a prior unrecorded lease, he will be presumed to have actual notice of it and of its contents where these are brought to the knowledge of his agent acting for him in the transaction.^* Eq. 199, 203; Lucas v. Sunbury, the prior lease provides for a writ- etc, R. Co., 32 Pa. St. 458. See ten notice to renew, the subse- Northwestern Ohio Natural Gas quent lessee cannot require it of Co. V. Tiffin, 50 Ohio St. 420, as to the prior lessee. lease of natural gas land. -i Thompson v. Christie, 13S Pa. BiAmes v. Miller, 65 Neb. 204, St. 230, 248, 20 Atl. Rep. 434, 11 91 N. W. Rep. 250. L. R. A. 236, 27 W. N. C. 7. In 62 Weaver v. Coumbe, 15 Neb. this case a lessee holding under 167. an unrecorded lease entered and 53 Clarke v. Mitchell, 51 N. H. made improvements by drilling an 415, 418, holding also that unless oil well. Subsequently the land- 394 LAW OF LANDLORD AND TENANT. § 266. The effect of the rscord as notice. Notice of a lease derived from its record is notice of its contents. As soon as one acquires constructive notice of a lease which has been recorded, he is presumed to have notice of every word which is written in it.^^ Thus a purchaser of the premises from the lessor is bound by a covenant to renew contained in a lease which was recorded prior to his purchase and when the time has arrived when the lessee shall have the right to a renewal, he is bound to grant j^ 56 rpj^^ failure to copy the lease in the record does not destroy the effect of the recording as constructive notice. A lease, if it has been properly acknowledged and delivered to the recording officer for record is thereafter constructive notice to everyone, though, through the neglect of a clerk or copyist, it was never actually copied into the records. It is an incumbrance which a purchaser at a foreclosure sale under a mortgage executed sub- sequently to the lease is bound to take notice of." § 267. As against the creditors of the lessor and persons claiming under him. By the operation of the various statutes in the several states of the Union requiring conveyances of land or of interests therein to be recorded, unrecorded leases are void as against creclitors of the lessor.^* So, too, under these statutes lord, acting on his attorney's ad- delinquent or careless purchaser vice, made another lease of the or mortgagee shall be assumed to premises to the law partner of the know what he would have learned attorney, which lease was re- had he explored those sources of corded. The court held that the knowledge which the law has pro- first lessee could not be ousted in vided for his information. The ejectment by the second lessee, fact that the term granted by the who had, by construction of law, lease had expired before the de- knowledge or notice of all the fendant took her mortgage can- facts which had been brought to not. in my judgment, change the the attention of his partner during rights of the parties. The record the transaction. of the lease was an important •"■•'• Spiclmann v. Kleist, 36 N. J. link in the chain of title." By the Eq. 199, 206. court, in Spielmann v. Kleist, 36 r-o Taylor v. Stibbert, 2 Ves. 439; N. J. Eq. 199, on page 206. Hall V. Smith, 14 Ves. 426. "Con- 'm Reid v. Town of Long Lake, structive notice, under the regis- 89 N. Y. Supp. 993, 44 Misc. Rep. try acts, is as efficacious as ac- 370. tual notice. The purpose of those ss Clift v. Stockdon, 4 Lift. (Ky.) acts Is to make such notice the 215, 216; Flower v. Pearce, 45 La. equivalent in all respects of ac- Ann. 853, 13 So. Rep. 150. Where tual notice. They declare that a Ihe statute invalidates a lease for FORM AND EXECUTION OF LEASES. 395 unrecorded leases which come within their operation are void as against mortgagees of the lessor,'^^ or as against his vendor or other purchaser for value in good faith who buys without actual notice.®" The record of the lease, in order to constitute a valid constructive notice of the rights of the lessee under it, to crops growing or to be grown on the land during the existence of the lease as against a subsequent chattel mortgagee of crops must definitely describe the land leased.*'^ § 268. The effect of recording a lease not required to be recorded. The recording of a lease which is not by the statute entitled or required to be recorded is a mere voluntarj^ act which is m no way effective to give constructive notice to parties sub- sequently dealing with the premises.''- The record of a lease not permitted to be recorded does not make it an incumbrance upon the premises of which a subsequent purchaser is bound to take notice. But the possession of the tenant under the lease not entitled to record is actual notice to the purchaser, whether he be a lessee or vendee, and he will be bound by all the facts he shall ascertain upon inquiry or which he might have obtained where he fails to make a reasonable inquirj'.®^ more than five years when unre- N. E. Rep. 280; Belding v. Flynn corded, a lease for ten years is (Ark.), 15 S. W. Rep. 184; Ken- totally invalid, and is not good dall B. & Shoe Co. v. Bain, 55 Mo. as against a creditor of the lessor, App. 264. where it has less than five years <''i Thurlough v. Dresser, 98 Me. to run. Clift v. Stockdon, 4 Litt. 161, 56 Atl. Rep. 654. (Ky.) 215, 216. e- Spielmann v. Kleist, 36 N. J. 59 City Council of Charleston v. Eq. 199, 203; Graves v. Graves, 6 Page, Speers (S. C.) Eq. 159. Gray (Mass.) 391; Villard v. Rob- eoMilliken v. Faulk, 111 Ala. erts, 1 Strob. Eq. (S. Car.) 393. 658, 20 So. Rep. 594 ; Brown v. «•'! Griffin v. Baust, 50 N. Y. Matthews, 3 La. Ann. 198; Toupin Supp. 905, 26 App. Div. 553. V. Peabody, 162 Mass. 473, 476, 39 CHAPTER XI. THE PROPERTY WHICH IS INCLUDED IN THE LEASE. § 270. The scope of this chapter. 271. Property included. 272. The privileges of a tenant of a part of a building. 273. Description of leased premises by street number. 274. Exclusive right of the lessee of a hotel to use a particular name. 275. The tenant's right to light and air coming through his front and rear windows. 276. Rights as to the use of light and air as between the proprietors of adjoining premises. 277. The right of a tenant to use outside walls. 278. The use of roof for advertising purposes. 279. Tenant's right to show windows. 280. Easements of egress and ingress. 281. Tenant's right to use of stairways and halls. 282. The right to use an elevator. 283. Electric light as an appurtenant, 284. Easement of water supply. 285. The riparian rights of the lessee. 28G. Right of the tenant to accretion. 287. Ice forming on land demised. 288. Lease of a mill or of a mill privilege. 289. Action for damages for the violation of an easement. 290. The protection of the tenant's easements by an injunction 291. Construction of the word "appurtenances." The general rule. 292. Things which have been held not to pass as appurtenances. 293. Meaning of the word "half." § 270. The scope of this chapter. In this chapter will be considered the extent of the rights of the tenant in connection with the use which he shall make of the demised premises. The numerous benefits which are comprised in the tenant's enjoy- ment of the premises will be distinguished and analyzed and the extent and character of these benefits determined. Under this head will come the various easements which are so frequently connected with the enjoyment of the possession of real estate, such as the right to light and air; the right to use water; rights of way, and certain other rights which are peculiarly modern. PROPERTY WHICH IS INCLUDED IN THE LEASE. 397 In determining these rights as regards to tenant's possession, many cases will be cited which have not arisen between landlord and tenant. This is particularly the case in the section where the meaning of the word "appurtenance" is discussed, for it is considered important in connection with the above topics to dis- cuss at length the meaning which the courts by construction and interpretation have given to this word which is of such frequent use in connection with the renting of real property. § 271. Property included. A lease of a building eo nomine is a lease of the land on which the building stands.^ So, the lease of a building conveys the lands under its eaves and projec- tions,^^ and to the middle of a private way in the rear the fee of which is in the owner.^^ But by a lease of apartments or a floor in a town for trade purposes or dwelling, the lessee takes only such interest in the subjacent land as depends upon his en- joyment of the premises rented and necessary thereto.^ The word premises used in a lease may have various meanings ac- cording to the circumstances. In a contract to sell premises known by street number, it would presumptively include the land. Its meaning in a lease must be determined from the con- text and the character of the property. Thus a lease of the premises shown by the street number which apparently includes the whole house is a lease of the land and of the yards and gar- dens appurtenant if any there be. But a lease of the premises described as the first or second floor or the like is not a lease of 1 McMillan v. Solomon, 42 Ala. 2 McMillan v. Solomon, 42 Ala. Sf.G, 94 Am. Dec. 654; Hosher v. 356, 94 Am. Dec. 654; Seidel v. Hestermann, 58 111. App. 265; Bloeser, 77 Mo. App. 172. A lease Sherman v. Williams, 113 Mass. of a dwelling house or other 481, 484, 18 Am. Rep. 522; Bacon building carries with it to the V. Bowdoin, 22 Pick. (Mass.) 401; tenant the right to use the land Hooper v. Farnsworth, 128 Mass. which lies under the eaves and 487, 488; Lanpher v. Glenn, 37 projection of the building if that Minn. 4, 33 N. W. Rep. 10. land is owned by the lessor an)d la St. Louis Public Schools v. where the lessor under such cir- Hillingsworth, 34 Mo. 191; Sher- cumstances, subsequently consent- man V. Williams, 113 Mass. 481, ed to the erection of a wall thereon 18 Am. Rep. 522. or to any use of it by another it lb Hooper v. Farnsworth, 128 is an eviction so far as the tenant ^lass. 487, 488; Rogers v. Snow, is concerned. Sherman v. Wil- 118 Mass. 118; Gear v. Barn um, 37 liams, 113 Mass. 481, 484. Conn. 229. 398 LAW OF LAND1X)RD AND TENANT. any land and when the premises are destroyed, the term is at an end.^ And where the premises leased in a lease of city property is described by street number "including- certain stories over the same with the buildings in the rear," it is a lease of buildings and the lessee takes no interest or estate in the land.* The lease of a barn without language added to it to extend its meaning, passes only the land upon which the bam stands. It will not pass a lot surrounding the barn containing several acres, where the occupation of the lot was not necessary to the full enjoy- 3 Snook & Austin Furniture Co. V. Steiner, 117 Ga. 363. 4 Snook & Austin Furniture Co. V. Steiner, 117 Ga. 363, 43 S. E. Rep. 775. An agreement in writ- ing to lease for a term "ttie Adams House, situate on Washington Street in Boston/" may be proved by parol to have been meant to include only so much of the build- ing as was fitted up as a hotel, by the name of the "Adams House," and not the separate shops which occupied the whole of the ground floor except the entrance. The question is what was included in the words "Adams House?" It was not described as a hotel, nor does the fact that it was built on the site of a former tavern show that it was such. There is no ambiguity on the face of the con- tract. But an ambiguity is at once raised when it is shown in order to identify the subject mat- ter that there is an Adams House and that a part of it has been used for hotel purposes and that certain other parts have been % used as shops, let to separate ten- ants, with no interior connection or any Mass. 1, 12 N. K. Rep. 401. PROPERTY WlllCn IS INCLUDED IN THE LEASE. 403 which is always rebuttable, is that the building is meant access to which may be had from the street by means of these doors. Hence if a building has a solid partition wall extending from cellar to roof which practically makes it two structures, a tenant whose lease describes it by street numbers cannot claim that the lease covers a portion of the building not accessible by the outside doors. And it is not material that, for the convenience of a prior tenant a passageway has been cut in the partition wall of the ftrst floor.^® The lease of land by street numbers in the absence of an express provision to the contrary' conveys the use of all land en- trance to which may be had from the street. It includes not only the front but the rear of the lot as well. The lessee will by impli- cation have the right to use all stables and outhouses upon the rear of the lot, access to which may be had by a door over which the number is placed. But this rule does not apply to corner lots in the business portion of a city fronting on two streets on which are situated dwelling and business houses, which are separate and distinct.^** Where there is nothing in the lease to indicate an in- tention to limit the lessee's occupancy to buildings a lease of city premises by street number conveys an interest in the yard, gar- den and subjacent land which the lessee retains after the build- ings have been destroyed or removed.-" Where a lease of a houst by a street number does not in terms convey the right to use a passage on the same lot beside it or to use the land in the rear to which it leads, all that the tenant holds is the right to use the passage way if its use is necessary to the complete en.joyment of the building for the purpose for which it was rented and whether the use of the passageway is necessary is a question of fact.-^ 18 Houghton V. Moore, 141 Mass. the structure two teaements as 437, 6 N. E. Rep. 517. distinctly as if they had been 19 Hosher v. Hostermann, 58 111. built on separate blocks. When App. 265. a house or building is described 20 p. H. Snook & Austin Furni- in a lease by street numbers over ture Co. V. Steiner & Emery. 113 the outside doors the inference is Ga. 363, 43 S. E. Rep. 775, 777. that a building is intended access The fact that a building has a to \vhich is reached by these doors, solid brick partition in it from Houghton v. Moore, 141 Mass. 437, cellar to roof without door or 6 N. E. Rep. 517. passageway in it raises an un- 21 Patterson v. Graham, 140 111. avoidable presumption that the 531, 535, 30 N. E. Rep. 460, affirm- different parts were to be sepa- ing 40 111. App. 399. rately occupied. The wall makes 404 LAW OP LA2JDLQRD AND TENANT. The presumption that a lease by street mimber includes only such buildings as are located upon the lot thus numbered is not rebut- ted by a clause granting to the lessee "all the buildings, out- houses and premises of said place with the appurtenances" ;where it appears that the lot in question was wholly occupied by the demised premises and that the outbuildings were upon an ad- joining lot also owned by the lessor.-- § 274. Exclusive right of the lessee of hotel to use a particu- lar name. Where the proprietor of a hotel or boarding house, whether lessee or owner of the building has by close attention to the needs and comfoi-ts of his guests, and by his superior indus- try and skill given his establishment a wide popularity under a distinctive name, and made it under such name a desirable resort for lodgers and travelers he has acquired an exclusive right to and property in such name which equity will protect. In fairness and justice to the person whose labor has given the name value and in order to protect the public from fraud and imposition any other person using such name while conducting a hotel in the .same town will be enjoined from continuing to do so.-^ The right to use the name, being a property right, may be transferred. Thus a lessee of a hotel in assigning his term or in subletting may, where he has acquired a right to use a peculiar and distinctive name, transfer such right to his assignee or sub-tenant. Or he may stipulate that he will not carry on the same business in the same place for a specified term of years in which case the right to the exclusive use of the name maj pass to and vest in the assignee by implication. A mere assignment of the term will not, in the ab- sence of express language to that effect, confer upon the assignee the right to use the name in which the assignor has property rights with the consent, express or implied, of the latter. And unless the person who by his industry and skill has acquired the exclusive right to use a particular designation for his hotel or boarding house, has transferred it to one to whom he has assigned or sublet the premises with which the designation was connected the latter cannot enjoin him from using it in the same business.^* 22 Morris v. Kettlo, 56 N. J. Eq. also, Knott v. Morgan, 2 Keen. 213. 826, 34 Atl. Rop. 376. 219. 23 Wilcoxen v. McCray, 38 N. J. 24 Wilcoxen v. McCray, 38 N. J. Eq. 466, 469; Howard v. Hen- Eq. 466, 469. riques, 3 Sandf. (N. Y.) 725. Se«* PROPEItTY WHICH IS INCLUDED IN THE LEASE- 405 § 275. The tenants right to light and air coming through his front and rear windows. The abutting owner of laud at com- mon law has a right to the street or highway for light and air and for access, ingress and egress, subject only to the easement in the public to use the highway and the rights of the municipality in which his land is situated. These rights constitute particularly in crowded business streets the most valuable portion of his property so that to deprive him of it will in most cases greatly diminish its value.-^ These advantages belong to and are a part of the property and are absolutely essential to its full use and en- joyment and they pass to a lessee unless specially reserved to the owner or some other person in the instrument.-*' A\"here an owner lays out land and on the map thereof designates certain streets and roads as giving access to the lots upon the map, and subse- quently leases such lots on long leases, the action of the owner in platting the land amounts to a dedication of such streets and roads to the use of the lessees.-'^ Hence the lessees are absolutely entitled to have these streets and roads kept during the term of the lease -® and also to eveiy incidental right flowing out of the existence of such public streets and highways. The tenant of a 25 Branahan v. Hotel Co., 39 from that of the general public. Ohio St. 333; Brayton v. Fall It includes not only the right to River, 113 IMass. 218; Pratt v. use the street for passage but for Lewis, 39 Mich. 7; Edmison v. light and air, access, ingress and Lowry, 3 S. D. 77, 52 N. W. Rep. egress at all times subject to the 583, 17 L. R. A. 275, 44 Am. St. public easement. The right to an Rep. 774. unobstructed street constitutes the 26 Edmison v. Lowry, 3 S. D. 77, most valuable part of the prop- 84, 52 N. W. Rep. 583, 17 L. R. A. erty, particularly in crowded thor- 275, 44 Am. St. Rep. 774; holding oughfares and business streets. also that the depositing of stone Such rights constitute property and lumber by the landlord in and cannot be taken for public use front of the leased premises which without just compensation. These resulted in the tenant being de- rights of the owner of abutting prived of access for three months property pass to a lessee, and the was an eviction which justified lessee therefore acquires all right the tenant's refusal to pay rent. to use the street in front of his 27 Thousand Island Park Asso- premises, including the right to ciation v. Tucker, 173 N. Y. 203, air and light, access, ingress and 65 N. E. Rep. 975; reversing 69 egress incident to the property N. Y. Supp. 1149. not only as against the public but 28 The right of the abutting against the lessor as well. Hence owner In land of a street is a pe- the right of the lessee to the use culiar, distinct and separate right of the street for the approach of 406 LAW OF LANDLORD AND TENANT. portion of floor in a building whose windows open npon the street or highway has the same right to the light and air which pass through these windows as against his landlord as the ten- ant of the whole building woiild have. Thus a lease of several front rooms on an upper floor of a building carries Avith it the implied right as against the landlord to have an unobstructed view of the street. So the lessor cannot shut off such view or im- pair the tenant's easements of light and air by adding to the front of the building.-^ One who leases the whole building and su])lets the several floors to separate tenants owes each of them the duty of refraining from obstructing their several easements of light and air. His liability to his subtenants in this respect is precisely the same in extent and degree as is that of the owner of the fee. The right of a tenant whether of the wdiole building or of only one. floor to light and air coming through the rear win- dows of his premises will be protected to the same extent is in the case of front w^indows. So, in a case w^here, during the term of a lease of a second story apartment in a building whose rear abut- ted upon a yard, the landlord, without the consent of the ten- ant, erected an extension of the building which occupied the yard so as to cut off the tenant's light and air it was held that a man- datory injunction would issue to compel the landlord to remove so much at least of the extension as obstructed the tenant's light and air by being in front of or above the rear windows of the ten- ant."" Though it is the wtII established rule that where premises are hsased with windows opening upon a vacant lot detached from the premises a grant of light and air is not implied to the lessee, yet where a lease is made of a part of a building with a window opening into a yard connected witji building so that if the lessee had leased the whole building the yard would have passed as an appurtenant to the demised building, the lessee acquires a. right to have the w'indow left unobstructed at least when it is n(;cessary for the use of the premises for the purpose for which it was let.^^ As between the several tenants of a building which express wagons, carriages and obstructed than the other. Edmi- other vehicles is as full and com- son v. Lowry, "3 S. D. 77, .S4. plete as his right to the occupa- 2» Brande v. Grace, 154 Mass. tion and use of the demised 210, 31 N. E. Rep. 633. building itself, and his right to fo Stevens v. Salamon, 31 Misc. the one can no more be lawfully Rep. 19, 79 N. Y. Supp. 136. 31 Doyle V. Lloyd, 04 N. Y. 432, PROPERTY WHICH IS IXCLUDED IN THE LEASE. 407 is let out in separate apartments each has, as against all the others, an unlimited right to the light and air necessary- to make his apartments habitable and which he receives through the front and rear windows in existence when he takes the premises. The 436, 439. In this case the Court by Earl, J., said: "If the plain- tiffs had hired the whole build- ing with the appurtenances, their right to the yard could not have been questioned. The yard be- longed to the building and was appropriate to its use, and would pass under a lease of the premises demised. The lease would have such effect, because it would be the presumed intention of the parties. In Sheppard's Touchstone, 94, it is said that the grant of a mes- suage or a messuage with the ap- purtenances will pass the dwelling house, barn, adjoining buildings, orchard, curtilage, and garden. In Comyn's Digest (Title, Grant E 6) it is said, 'by the grant of a mes- suage or house, the garden, or- chard, or curtilage pass.' In T\Tait- ney v. Olney, 3 Mason (U. S.) 208, it was held that a devise of a mill with appurtenances conveyed not the buildings merely, but the land under and adjoining, which is nec- essary to the use and actually used with it. In United States v. Appleton. 1 Sumn. (U. S.) 492, Judge Story said, "The general rule of law is, that where a house or store is conveyed by the owner thereof everything then belonging to and in use for the house or store, as an incident or appurte- nant, passes by the grant. It is implied from the nature of the grant, unless it contains some re- striction, that the grantee shall possess the house in the manner and with the same beneficial rights as were then in and be- longed to it. In the case sup- posed, the yard would have passed with the store, not by force of the word "appurtenances" but as por- tions of the premises demised. Riddle v. Litchfield, 53 N. H. 503. If all the rooms, in .the building had at the same time been rented to different persons, each taking the room with the appurtenances, and no mention had been made of the yard, a different case would have been presented. The demise of a room in the building would pass no portion of the yard. Each tenant would take only the room • which he had hired, and would take no other portion of the prem- ises. Whatever else he took would be by virtue of the word "appur- tenances." That word would give him whatever was attached to or used with the premises, or inci- dent thereto an,d convenient or essential to the beneficial use and enjoyment thereof, and he would take any easement or servitude used or enjoyed with the demised premises. 2 Wash, on Seal Prop. 667. It would give him no inter est in the yard as a portion of land, because land cannot pass as appurtenant to land, but it would give him easement in the yard in common with all the other tenants, for all purposes for which it could be used in common — for access to the privies, for a play- ground for children, and for light and air for rooms in the rear of the building. If the different rooms were leased at different times with the appurtenances, the 408 LAW OF LANDLORD AND TENANT. same rule applies to all windows in the separate apartments open- ing on any passageway which is wholly within the building itself, as a hall or corridor. A tenant of one portion of the premises whose full and unobstructed use of a front or rear window is prevented by or through tenants of other parts of the house, placing showcases in front of it, may maintain an action of tres- pass against the trespasser, and may legally remove the obstruc- tions themselves.^- If the tenant of one part of the premises ob- structs the windows of another tenant by the direction or with the express consent of the landlord the tenant w^ho is thus annoyed or inconvenienced may treat the obstruction as a constructive eviction and he may act accordingly so far as the abandonment of his apartments is concerned. An owner of premises leased the up- per part of the same the windows of which looked out upon an open space. He then leased the whole building subject of course to the prior lease, but also giving the second lessor permission to erect an electric plant and to build a chimney for the same. The second lessee having erected a chimney which obscured the win- dows through which the first lessee received light and air it was held that the first lessee had a right of action against the land- lord though the lease contained no express covenant of quiet en- joyment.^^ A covenant by the lessor that he will not object to any "works" on the adjoining premises which may be sanctioned by his landlord, applies only to buildings which are in actual contact with the demised building. Hence the tenant is not precluded from preventing his landlord from building so as to obstruct his light, where his lease conveyed to him all lights, easements and appurtenances belonging to the premises which he leased, where same result would follow. Each occupied when plaintiff took the tenant would have an easement in lease no tenant thereof could well the yard. Such, in the absence of dispense with the use of the yard, restrictive words, would be the The building was so constructed manifest intention of the parties and arranged that all the tenants and no rule of law stands in the had access to the yard and there way of giving effect to such in- was no other apparent purpose to tcntion. The yard was attached which the yard could be sub- to and appropriated for the use of jected." the building. The privies were 32 Whitohouse v. Aiken (Mass. built for the use of the occupants 1906) 77 N. E. Rep. 499. of the building and the yard was 33 Case v. Minot, 158 Mass. 557, essential to the beneficial use 33 N. B. Rep. 700 thereof, and as the building was PROPERTY WHICH IS INCLUDED IN THE LEASE. 409 the buildings which are being erected by the landlord are located on ground which actually touches the ground occupied by the tenant.^* § 276. Rights as to the use of light and air as between the proprietors of adjoining premises. In England it is the general rule that a person may acquire the right to an easement of light and air as against an adjoining o\vner by the uninter- rupted enjoyment of such right for a period of twenty years. By such right the adjoining owner is prevented from stopping up the windows of the person who has the right by the erection of buildings on his own land. So if one who has a house with win- dows looking out to his own vacant land shall sell it he may not thereafter build a structure upon the vacancy which he still owns which shall deprive the house he has sold of its light.^^ This rule for a prescriptive right or easement however, in the use of light and air which may be acquired by uninterrupted use is not gener- ally recognized in the United States.'® In the cases cited the question of an easement of light and air over adjoining land has almost universally arisen between the grantor of the fee and his grantee, and no English case has been found where the rule was applied between a lessee and a lessor who was the owner of ad- joining land. The basis of the rule which is recognized in Eng- land is not very clearly pointed out in the cases. As between the grantor and grantee the rule may in theory" be based on an im- 34 White V. Harrow, 86 L. T. 4, len v. Strieker, 19 Ohio State, 50 W. R. 2.59. 135, 2 Am. Rep. 379; Haverstick 35 Moore v. Rawson, 3 Bar. & C. v. Sipe, 33 Pa. St. 368; McDonald 332, 340; Palmer v. Fletcher, 1 v. Bromley, 6 Phila. (Pa.) 302. Lev. 132; Aldred's Case, 9 Rep. 24 Leg. Int. 157; King v. Large, 7 58b. For a full citation of the Phila. (Pa.) 282, 27 Leg. Int. 149; English cases see Washburn on Klein v. Gehrung, 25 Tex. 232; Easements and Servitudes, mar. Hubbard v. Town, 33 Vt. 283; Tur- p. 492. et seq. ner v. Thompson, 58 Ga. 268, 24 38 Ward V. Noel, 37 Ala. 500; Am. Rep. 497; Guest v. Reynolds, Western Granite & Marble Co. v. 68 111. 478, 18 Am. Rep. 570; Dex- Knickerbocker, 103 Cal. Ill, 37 ter v. Tree, 117 111. 532, 6 N. E. Pac. Rep. 192; Lapere v. Luckey, Rep. 506; Stein v. Hauck, 56 Ind. 23 Kan. 534, 33 Am. Rep. 196; 65, 26 Am. Rep. 10; Cherry v. Richardson v. Pond, 81 Mass. 387, Stein, 11 Md. 1; Parker v. Foote, 389; Carrig v. Dee, 14 Gray 19 Wend. (N. Y.) 309; Powell v. (Mass.) 5S3; Haydeu v. Dutcher, Simms, 5 W. Va. 1, 13 Am. Rep. 31 N. J. Eq. 217; Sweeney v. St. 629. John, 28 Hun (N. Y.) 634; Mul- 410 LAW OP LANDLORD AND TENANT. plication that the premises to which it is claimed the easements attached would be rendered more valuable thereby, and that for that reason the grantee of the premises paid more for them than he would otherwise have done. As between grantor and grantee it may possibly be assumed that the easement arises as soon a? the grant is made. If this be assumed then the easement is not created by prescription nor by adverse use for a specific period which might apply in other eases, but by the fiction of an implied contract.^" No doubt the English cases determining this question between a grantor and grantee would be applicable in those juris- dictions where the English rule is followed to a case where a les- sor owning adjacent lots by building upon one of them obstructs the light and air of his lessee. The prevalent rule in the United States is that an easement in the unobstructed passage of light and air cannot be acquired by prescription alone.^® And it is also a general rule to which, however, exceptions are made in some states that a grant of the right to light and air will not be created by implication from the conveyance of a house whose windows overlook other land retained by the grantor. Nor will a grant of an easement of light and air be implied in such case from the nature or use of the building on the land conveyed or from the necessity of such an easement to the convenient use and enjoy- ment of the property.^^ So, a person who rents the second story of a building for a business *'. e., photography which requires un- obstructed light, has no cause of action against an owner of an 37 Mr. Washburn in his Treatise 3G5, 33 Atl. Rep. 390, 29 L. R. A, on .Easements bases the claim to .582; Keiper v. Klein, 51 Ind. 316; light and air upon what he calls Morrison v. Marquardt, 24 Iowa, the familiar rule of law that if 35, 92 Am. Dec. 444; White v. one grant an estate to which cer- Bradley, 66 Me. 254; Collier v. tain apparent and continuous sub- Pierce, 7 Gray (Mass.) 18, 66 Am. jects of enjoyment belong and are Dec. 453; Randall v. Sanderson, used therewith he cannot there- 111 Mass. 114; Keats v. Hugo, 115 after derogate from the benefit of Mass. 204; Burr v. Mills, 21 Wend, his own grant by interfering (N. Y.) 290; Shipman v. Beers, 2 therewith.— p. 492. Abb. N. C. 435; Haverstick v. Sipe, 38 Keating v. Springer, 146 111. 33 Pa. St. 368; contra James v. 481, 492, 34 N. E. Rep. 805, 37 Am. .lenkins, 34 Md. 1, 6 Am. Rep. St. Rep. 175, 22 L. R. A. 544; 300; Turner v. Thompson, 58 Ga. Keats V. Hugo, 115 Mass. 204; Mul- 26S, 24 Am. Rep. 497; Taylor v. len V. Strieker, 19 Ohio St. 135; Boulware, 35 La. Ann. 469; Cherry Guest V. Reynolds, 68 111. 478 v. Stein, 11 Md. 1; Green v. Me- •■!!' Robinson v. Clapj), 65 Conn. tor, 54 N. J. Eq. 270.' PROPERTY WHICH IS INCLUDED IN THE LEASE. 411 adjacent lot who siibseqnenlly erects a biiildincj thereon and oh- stmcts the tenants' windows though the same person owned the demised premises and the strip of land npon which the wall was located.*" It follows therefore in conformity with this general rule that a landlord will not be liable for obstructing his tenant's light and air by building on the adjoining land owned by him in the absence of any covenant or agreement in the lease forbidding it.*^ Of course the right to have light and air come through a window over the adjoining premises may be conveyed in a lease by express covenant or agreement. *^^ So, if buildings are erected occupying the four sides of an open court, or occupying three sides of a court or alleyway which opens into a public highway with an open space in the middle for light and air which is free to the occupants of the rooms in the adjoining buildings, with a 40 Lindsey v. First Nat. Bank, 115 N. Car. 553, 20 S. E. Rep. 621, in which the court said: "Whether the plaintiffs leased the second story room for the purpose of tak- ing photographs therein, or with some other object in view, they contracted in terms only for the use of the apartments occupied by them, and not for an unob- structed light passing through a certain window or windows in ad- dition. They might maintain an action for any trespass upon the premises rented by them. But conceding that the lessors were the owners of the eighteen inches of land just outside the wall which was in dispute, it was not contended that they had entered into any stipulations, so far as we can ascertain from the testimony, that the lease of the plaintiffs should extend beyond the wall. Consequently the lessors could have purchased the land of the coteimiuous proprietor and have erected a structure, one wall of which would have shut out the light from the windows of the de- mised premises, without subject- ing themselves to liability on an action of trespass brought by their tenants. They could have conveyed to another this narrow strip of land and have vested their grantee with the same power, their lessee having ac- quired in the absence of special stipulation no right, title or in- terest in it. Whether the lessors allowed the adjacent owner to build a wall upon it under a ver- bal license or left him unmolested when he built without license or not the lessees had no remedy against the latter in any event, and could maintain an action against the former only by show- ing a breach of some special con- tract in reference to the lights. •*i Keating v. Springer, 146 111. 481, 493, 34 N. E. Rep. 805, 37 Am. St. Rep. 175, 22 L. R. A. 544; Myers v. Gemmell, 10 Barb. (N. Y.) 537, 545; Palmer v. Wetmore, 2 Sandf. (N. Y.) 316, 2 Woodf. Landlord & Ten., p. 703, note. ^ui Milliard v. Gas Coal Co.. 41 Ohio St. 662, 667; Brooks v. Reyn- olds, 106 Mass. 31; Hazlett v. Pow- ell, 30 Pa. St. 293. 412 LAW OF LANDLORD AND TENANT, common entrance to all, and separate apartments are then let out to different tenants, the owner may conclusively be considered to have dedicated that open space, like a yard, for the benefit of his tenants.*^ § 277. The right of a tenant to use outside walls. One who leases business property takes by implication in the absence of an express reservation in the lease the rig-ht to use the outside wall or walls for placing his signs or other advertising matter thereon,*^ unless it appears that the walls of the portion of the premises leased, were already occupied by signs to such an extent as to be notice to the tenant, that his advertising privilege was to be restricted.** This right passes as an incident of the leasing being necessary to the full and proper enjojonent of the demised premises. Hence as against the tenant in possession the landlord cannot lease the right to use the outside walls to a third per- son,*^ and if he shall attempt to do so, the third person may be enjoined from placing signs or notices thereon without the con- sent of the tenant.*^ The tenant however has no right to use for any purpose any portion of the outside wall not enclosing his part of the premises. The tenant of a store on the ground floor cannot interfere vdth the landlord who lets the wall of an upper story to another.*^ The question of the right to use an outside wall as space for signs and advertisements may arise and cause some difficulty where several tenants occupy separate premises on the same floor. A provision in a lease to the effect that "the *2 Myers v. Gemmell, 10 Barb. (N. Y.) 3.o5. A lessee of the first (N. Y.) 537, p. 546, citing Story story and basement of a building T. Odini, 12 Mass. 157, in which will be protected against his les- case houses facing on three sides sor by an injunction, where he of a court were sold. has painted on the outer wall of 43 Riddle V. Littlefield, 53 N. H. his story, in good style, certain .o03, 16 Am. Rep. 388; Baldwin v. pictures, signs, and devices, suita- Morgan, 43 Hun (N. Y.) 355; Law ble and proper for advertising his V. Haley, 9 Ohio Dec. 785, 17 business, where the signs do not Wkly. Law Bui. 242; Carlisle Cafe extend bejond the premises leased Co. V. Muse, 67 L. J. Ch. 53, 77 to him, and the lease corutains no L. T. (N. S.) 515. restriction upon putting signs on 44 Scott V. Fox Optical Co., 3S the front of the building. Bald- Pitts. L. J. 368. But see Hele v. win v. Morgan, 43 Hun (N. Y.) Stewart, 19 W. N. C. (Pa.) 120. 355. 45 Lowell V. Strahan, 145 Mass. 47 Booth v. Gaither, 58 111. App. 1, 12 N. E. Rep. 401. 203. And may be restrained from 4» Baldwin v. Morgan, 43 Hun doing so by an injunction. PROPERTY WHICH IS INCLUDED IN THE LEASE. 413 lessee may have the right to place signs upon the outer walls" does not where there are several tenants give him an exclusive right to do so but is to be construed in reference to the condition of the premises at the time it was written especially as affected by licenses to older tenants.*^ But where a building is let out in floors to separate lessees each one has the exclusive right to place signs upon the outer wall so far as it forms an enclosure to his premises." The right of a tenant in a large business building *i Pevey t. Skinner, 116 Mass. 129. ■»9 Lowell V. Strahan, 145 Mass. 1, 12 N. R Rep. 401, 1 Am. St. Rep. 422; Riddle v. Littlefield, .53 N. H. 503, 16 Am. Rep. 388; Law V. Haley, 9 Ohio Dec. 785, 17 Wkly. Law Bui. 242; see, also, Snyder v. Hersberg, 33 Leg. Int. 158. A tenant will not be en- joined pending an action, by his landlord to compel him to remove a sign on his premises, where the sign is not forbidden by the lease, and it does not appear that it caused irreparable injury to the landlord. Stim v. Nash, 19 Civ. Pro. R. (N. Y.) 184, 12 N. Y. Supp. 431. Now, it will hardly be con- tended that the outside wall of a store or house is not essential for the reasonable and proper en- joyment of the interior of the building. The outer side of tjie wall is but one side of the same wall that has an inner side; the removal of the wall removes both sides. If, then, a lessee or grantee may have the wall which he pays for, it would seem that he should be entitled to the use of it. Not only for purposes in^ dispensable to the occupation of the building, but also for any pur- pose of service or profit not in- consistent with the lawful and reasonable enjoyment of the prop- erty. If he uses the tenement for a store, he would ordinarily be entitled to affix his signs to the outer wall; an awning also if such appendage should be deemed necessary or convenient. He may suspend his wares upon the build- ing if no one is inconvenienced thereby and he may cover the outer walls with his advertise- ments of the merchandise which he keeps for sale within, if he does not injure the building, nor obstruct the public passage, nor offend the public eye and taste by unseemly exhibitions or otherwise violate the laws. And if he may thus incumber and cover the ex- terior walls of his store, clearly his lessor cannot do the same thing at the same time. The oc- cupation by both parties to the lease for incongruous purposes is impossible. If the premises are leased for a clothing store, for ex- ample, the lessor cannot use for a bulletin board the space which the lessee may reasonably, properly, conveniently and profitably oc- cupy with the ready-made gar- ments which he thereby suspends for exhibition and sale. * * * The lessee who affixes his signs and advertisements upon the wall, or thereupon suspends his wares, does so in order to attract custom, and thereby increase the profit derived from the use of the demised premises. The outer wall 41-1 LAW OF LANDL(3RD AND TENANT. which is rented to many tenants carrying- on various trades or avocations, to have his sign stating his name and the nature of his business displayed in a prominent place at the entrance from the street is an important one. The matter is usually regulated either by the terms of the lease or by regulations made by the landlord for the management of the property to which the tenant is required to conform. Where the matter is not thus expressly regulated the right to have a sign at the common entrance to this building will pass as an appurtenance to the premises demised. A tenant cannot however arbitrarily place his sign in a particu- lar locality at the entrance as against older tenants. Nor will equity protect him from having his sign removed to another place unless it shall appear that he has exhausted all means within his reach to come to an arrangement with the landlord and the other tenants.'^" But a tenant of the upper floors of a building to whom has been given the privilege of putting signs on or near the stairway can prevent a tenant of a lower floor from covering up his signs, whether by reason of his tenancy or by authority from the landlord.^^ Tenants who, by the terms of the lease, are not permitted to use the outside walls of the premises for adver- tising purposes cannot prevent the use of such walls by their is to him a source of legitimate iug for the purposes of trade Ijrofit. And as the lessor does not might occupy the outer walls of ordinarily prescribe the uses to the same building for displaying which the interior of the store the advertisements o'f a rival shall be devoted — provided only trade but this result might very the use be not offensive, improper probably follow, if the lessee or illegal so he may not, other- might not control the use of the wise than with the same proviso, e.xterior walls. Riddle v. Little- prescribe the. uses to which the field, 53 N. H. .503, 510. outer walls may be devoted by his •'"'O Knoepfel v. Kings County lessee. If the lessee deems it Fire Ins. Co., 66 N. Y. 639, 48 How. more advantageous to employ the Prac. (N. Y.) 208, 7 J. & S. 553. Avails for advertising the goods or and compare Law v. Haley, 17 business of others receiving pay- Wkly. Law Bui. 242, where a prior ment therefor, than to advertise tenant having appropriated a or expose his own goods, upon the space for his sign an inijunclion wall, it is none of the landlord's was refused a subsequent tenant business, unless he has restricted to prevent him from continuing and forbidden such use of the to occupy it. premises, or inserted in his lease m Miller v. Fitzgerald Dry a covenant against the lotting of Goods Co., 62 Neb. 270, 86 N. W. them. It would be singular if a Reu. 1078. landlord, who had leased a build- PROPERTY WHICH IS INCLUDED IN THE LEASE. 415 landlord for.advortising purposes on the ground that the adver- tisements painted by the landlord upon the outside walls offend their esthetic tastes and dim the lustre of the advertising signs of the tenants which they have caused to be placed upon their win- dows. They mu.^t show some actual damage and injuiy to their business.^" A sign which has for some years been attached to premises owned by the landlord other than that demised but ad- jacent to it, and which indicated the locality of the demised premises, and the business of its occupant, the lessee, will be pre- sumed to be a parcel of the said premises, and the landlord will be enjoined from removing it.'^^ § 278. The use of roof for advertising- purposes. The very common use of roofs for the display of large advertising signs render some consideration of this topic necessaiy so far as it re- lates to the relation of landlord and tenant. Under a lease by which the tenant receives the exclusive possession and control of the demised premises he would doubtless have the right to sub- let the roof for advertising puipose unless expressly forbidden to do so by a provision in the lease. In doing so he may be liable to his landlord for any injury to the building resulting from the erection of signs on the roof irrespective of whether such damage was or was not the outcome of negligence. He may be liable for his failure to restore the premises to their original condition after the structure placed upon the roof for advertising purposes is removed. The landlord who retains to himself the exclusive control of the roof, particularly of premises leased to several tenants in floors may lease the roof to a stranger or ase it for his own advertising purposes, unless forbidden to do so by the lease. His liability to his tenants to keep the roof in a reasonable state of repairs will extend to and include any signs or other structures placed on his roof by himself or others with his permission. § 279. Tenant's right to show windows. The display and public exhi])ition of goods exposed for sale in stores constitute a very important part of the use and enjoyment of business prem- ises. "Where, at the time of the letting, there are show windows in a store, they aiv included as an appurtenance of the premises, and the tenant has the full right to use them for the display of his •"•2 Fuller V. Rose, 110 Mo. App. ss Francis v. Hayward, 52 L. J. 344, 85 S. W. Rep. 931. Ch. 291, 22 Ch. D. 177. 48 L. T. 297, 31 W. R. 488, 47 J. P. 517. 416 LAW OF LANDLORD AJSTD TENANT. goods.^* The extent of the tenant's right to make; a display of merchandise sold by him depends altogether upon the language of the lease and the facts of each case. His rights are obviously greater in the case of business premises than in the case of a dwelling house. But even though he may have an absolute right to use show windows existing in the premises at the date of the lease he will not be permitted to put in new windows for exhibit- ing his wares without the consent of his landlord. Such conduct on his part, effecting a material alteration in the premises, is waste from the landlord's standpoint and will be enjoined as such in equity. And his use of existing show windows must be a proper and legal use for if he shall, by exhibiting anything therein during his term, create a nuisance which shall tend to in- jure the reversion he may be enjoined by his landlord. § 280. Easements of egress and ingress. A demise of land in general terms without any express mention of the use of a right of access thereto conveys the right to use all ways giving access to the premises which are appurtenant to the land or which are necessary for its convenient use by the tenant. If the right of way is in fact appurtenant it has passed with the gen- eral demise whether the word appurtenant is or is not used.^"^ "Whether a right of way is or is not an appurtenance depends mainly upon the determination of the question whether it has or has not been used by the former tenants or has been enjoyed by them in connection with their use of the building demised. This is always a very material inquiry irrespective of whether the word appurtenance is employed in the lease or not. A right of way to the demised premises not strictly appurtenant will not pass under a clause leasing the premises "with all roads, ways, rights of road, paths, passages, etc., to the premises, or in any way appertaining" unless the parties to the lease appear to have intended to use these words in a sense which is larger and more inclusive than their ordinary sense.^''^ The better practice •'■'4 Herpolsheimer v. Funke 172; Kitchen Bros. Hotel Co. v. (Neb.) 95 N. W. Rep. 688. Philbin, 2 Neb. (unof.) 340, 96 N. B5 Skull V. Gleni.ster, 11 W. R. W. Rep. 487; Doyle v. Lord, 64 N. 368; Snook & Austin Fur. Co. v. Y. 432, 21 Am. Dec. 629. Steiner, 113 Ga. 303, 43 S. E. Rop. coa Barlow v. Rhodes, 1 C. & M. 775, 777; Patterson v. Graham, 439. See, also, Hinchcliffe v. Earl 140 111. 531, 30 N. E. Rep. 460; of Klnnoul, 5 Bing. N. C. 1. Seidel v. Bloesser, 77 Mo. App. PROPERTY WHICH IS INCLUDED IN THE LE.\SE. 417 in conveying the right to use roads, ways or passages to a tenant to whom lands or buildings are leased is to describe the roads or ways which are meant to be transferred "as having been used by the former tenants" or as "having been enjoyed" in connection with the possession of the premises.^® For a lease of premises "together with all ways appertaining or that in any parts thereof are used or enjoj^ed," carries a right of way, though it is not expressly mentioned in the lease if it were used with the prem- ises at the time the lease was made." The absence of the word appurtenances is not material, though its presence strengthens the construction. A lease of a house with all the rights "be- longing or appertaining or therewith usually held, used, occu- pied, or enjoyed and their appurtenances" embraced and con- veyed a right of way which had been held with the principal estate.^^ So, where premises were let with certain specified rights of ingress and "all other ways and easements to the said premises belonging and appertaining," the latter words were held to pass a right of way over the lessor's own premises, which he used for access to the premises demised.^® The right to use a certain way to gain access to the demised premises may, under certain circumstances, pass to the lessee, though it is not strictly an appurtenant and though it has never been used or enjoyed by any former tenant of the premises. For example, where a landowner demised a portion of his land which he cuts out of a 56 Morris v. Edington, 3 Taunt. The court said there is a great 24, 27; Barlow v. Rhodes, 1 C. & difference to be observed in con- M. 439; Harding v. Wilson, 2 B. struing a grant or lease with ease- & C. 96. Under these words any ments over another's land and one right of way used and enjoyed by where the easements are in the the tenant when the lease was ex- lessor's land. Morris v. Edington, ecuted would pass. The rule that 3 Taunt. 24, 31. no easement can exist in land in 57 Kooystra v. Lucas, 1 D. & R. which there is a unity of posses- 506, 5 B. & Aid. 830, 24 R. R. 575; sion has an exception where a Harding v. Wilson, 3 D. & R. 287, lessor having used convenient 2 B. & C. 96, 1 L. J. (O. S.) K. B. ways over his own adjoining land 238. 26 R. R. 287; Morris v. Eding- leases land with all ways appur- ton, 3 Taunt. 24, 12 R. R. 579; tenant. The convenient ways used Crisp v. Price, 5 Taunt. 548. by him over his own land will ss James v. Plant, 4 Ad. & El. pass to his lessee though technic- 749. ally speaking they are not appur- 59 Morris v. Edington, 3 Taunt, tenant unless it be shown that 24, 12 R. R. 579 there was a way appurtenant. 418 LAW OP LANDLORD AND TENANT. large tract so that the demised land is surrounded by other land of the lessor occupied by the lessor or by other tenants, there arises by implication in the tenant of the inner portion of the land a right of way by implication of law and by necessity, over the adjoining land owned by the landlord. But aside from rights of way which are in fact appurtenant to the land demised or which arise from necessity, no easement of access over other lands is conveyed to a tenant by a general demise of land or of a building. In other words, rights of access to the demised premises cannot be claimed by a tenant merely because his con- venience will be advanced thereby, in the absence of an express grant. Hence, as a rule the lessee of land which is accessible from the public road has no right to use a shorter way across other lands of his lessor without the permission of the lessor, either express or implied; and if this permission can be implied from his use of the shorter route without objection, it is only a parol license and revocable at the pleasure of the lessor.®*^ So, also, the lessee of a part of a building cannot claim a right of ac- cess to his premises through a portion leased to another, where such access is not granted in the written lease, and there are other means of access to the leased premises, merely because this method of access would be more convenient for him. If the access through the other portion of the premises were an ease- ment whi(!h attached to his use of his premises, or if it were the only means of access to the portion of the building occupied by the tenant before his term it might be claimed by him as neces- sarily appurtenant to his premises. The case is very different where its use is a mere convenience to him, but a serious injury to the rental value of other portions of the house."^ The tenant in taking a lease of land, must inquire and ascertain for him- self the means of access. The mere silence of the landlord as to the existence or non-existence of a road by which access to the land may be had, is not fraud. If the lessor asserts that there is a road by which access to the premises may be had, it is fraud on his part if the assertion is false. The lessee Avill not be justified in assuming that there is an established road to the premises, be- cause there may be signs of travel. lie must look to it himself, and, if he sluill lease a tract of land to which there is no access, 80 Motes V. Bates, 4 Ala. 371. "' Ward & Co. v. Robertson, 77 Iowa, 159, 161. PROPERTY WHICH IS INCLUDED IN THE LEASE. 419 the lessor's subsequent promise to build a road is not supported by the consideration that, witliout the road, the lessee will not be able to pay his rent. The mere fact that the lessee, relying upon the promise of the lessor to build, a road, omitted to do so himself, and thereby failed to get his crops in season, is not such a disadvantage as would constitute a consideration for a promise by the lessor. To have that effect, it must appear that •the disadvantage was suffered at the request of the promisor, ex- pressed or implied.*'- But a covenant in the lease by the lessor that he will build a road or provide access where none exists is valid and enforeible by the tenant. A covenant by the lessor that he "will provide a suitable right of way to get to and from" the premises which are surrounded on all sides by land of others than the lessor is not a mere warranty that there existed a right of way by necessity over the land of others. It is therefore not performed by showing that such a mode of access exists and evi- dence to that effect is therefore inadmissible. The covenantor agrees to do something for the lessee. He must by purchase or otherwise secure a right of way over the land of adjacent pro- prietors and if he fails to do this he is liable to the lessee for what the latter has had to pay to owners of other land for a suitable right of way over it.**^ § 281. Tenant's right to use of stairways and halls. A land- lord who lets rooms, apartments or offices on the upper floor of a dwelling house or other building, covenants by implication, that the lessee shall have a free and uninterrupted use of the stairway, halls and entrances, both for himself and his visitors. The right of the lessee under such circumstances is in the nature of an easement, to the use of the entry-way. hall and stairways leading to the floor or apartments occupied by him.®* Thus, in C2 Handrahan v. O'Regan, 45 not shown that the passage way Iowa, 298, 300. had been in the exclusive occupa- 63 Bunker v. Pines, 86 Me. 138, tion of A. Dyne v. Nutley, 14 C. 140, 29 Atl. Rep. 959. A means of B. 122, 2 C. L. R. 81. access through the demised prem- e4 Weil v. Munro, 3 N. Y. Supp. ises to other property of the les- 25; Miller v. Fitzgerald Dry Goods sor, which had always been used Co.. 62 Neb. 270, 86 N. W. Rep. by tenants of such other prop- 1078; Chase v. Hall, 41 Mo. App. erty, does not pass by a demise of 15; Cowan v. Truefitt, 67 L. J. Ch. a tenement "now of late in the 695, 2 Ch. 551. 79 L. J. (N. S.) 348, occupation of A," where it was 47 Wkl. Rep. 29. 420 LAW OF LANDLORD AND TENAJSTT. an English ease, it was held that a tenant who rented two rooms on the second floor, had an absolute right to the use of the door bell, the knocker, a skylight which lighted the stairway, the stair- way itself, a closet in the hallway and of all other conveniences in the building necessary to the proper and comfortable enjoy- ment of the part leased by him.^^ An action by the tenant will lie against the landlord either in damages for removing such conveniences or in equity for an injunction to restrain the land- lord from interfering with them.*'^ So, too, the tenant of a lower floor cannot, either under his lease or by the direction and au- thority of the lessor, obstruct the stairways or halls, or the means of access thereto, so as to prevent or impede access to the rooms of a tenant on an upper floor,^^ for if there are several tenants in the building, entrance to which is through a single door and hallway, the right of all and any of them to use the premises is subject to the right of all the others to make an equal use of the common entrance and no one of them has an exclusive right to such use.^^ For it is well settled that the right of a tenant to use an exit or egress to and from the portion of the premises occupied by him, whether for himself, his visitors or his goods, must be used so as not to inconvenience the other tenants unnecessarily.®® The right to use closets contiguous to rooms rented in an office building and the wash basins therein and the elevators, hallways, stairs and entrances to the building are included in the lease, even though they are not specially mentioned. ■'^ Nor can the landlord by reason of an express cove- nant permitting him to alter or repair the stairway, so materi- ally alter its location that the access of the tenant of the upper floor is materially affected. And, if by altering the entrance 60 Underwood v. Burrows, 7 Car. 68 Misc. Rep. 123, 77 N. Y. Supp. & P. 26. 91. In Hamilton v. Graybill, 19 06 Miller v. Fitzgerald Dry Goods Misc. Rep. 521, 43 N. Y. Supp. Co., 62 Neb. 270, 86 N. W. Rep. 1079, the right of a tenant to use 1078. a water closet on his floor was «7 Miller v. Fitzgerald Dry Goods decided, and it was said that the Co., 62 Neb. 270, 86 N. W. Rep. existence of the closet "may have 1078. been materially persuasive upon 08 Perry v. Skinner, 116 Mass. the respondent when he accepted 129. the lease of the rooms, and which Of Browning V. Dalosme, 5 N. Y. because not expressly excluded Super. Ct. 13, 195. passed with the demise, although 70 Hall V. Irwin, 78 App. Div. not particularly alluded to." 107, 79 N. Y. Supp. 614, reversing PROPERTY WHICH IS INCLUDED IN THE LEASE. 421 and hallway the landlord gains a larger hallway, he cannot ob- struct it, if by so doing, he deprives his tenant of the convenient access that he had beforeJ^ While the tenant is entitled to the free use of all exits and means of going upon the demised prem- ises which exist when he takes the lease, he may not be entitled to the benefit of doorways and entrances created by the landlord subsequently thereto and which are not absolutely necessary to him for the proper enjoyment of the demised premises. Thus, where a doonvay was cut by the landlord which leads into the demised premises (a saloon) from a hotel adjacent, after the lease had been made and the lease contained no covenant con- cerning the use of such doorway, the landlord is not necessarily bound to keep it open for the benefit of the tenant and its use by the tenant, when permitted by the landlord, may be revoked by him at any time.'- Thus, to sum up, the rule is that the ten- ant is entitled to access to his premises and if he has this, he cannot extend it beyond what he had when he entered into pos- session. Nor, on the other hand, has the landlord a right to curtail the means of access which existed when the term began. One who rents a lower floor knowing that the upper stories are to be used for purposes which render the use of a stairs and ele- vator necessary, takes his apartments subject to the right of the tenant upstairs to use the stairway and elevator and to have ac- cess to the same through a hall on the lower floor.'^ As between the tenants of upper and lower floors it is obviously out of the na- ture of things that the latter must in very many cases submit to inconvenience in the use and enjoyment of his premises in order that the foi-mer may have proper and convenient access to his premises. This should be reduced to a minimum and while the tenant of the upper floor must use the means of access on the the lower floor so as to inconvenience the lower tenant as little as possible, the latter must not obstrux3t such means of access. As against his landlord a tenant has an absolute right to access where the only means of access to the second story of the build- 71 Lindblom v. Berkman, 43 or hallway gives him no right to Wash. 356, 86 Pac. Rep. 567. The impede it. stairway being the only means of •- Shaft v. Carey, 107 Wis. 273, egress passed to the tenants of 83 N. W. Rep. 288. the upper floors as an appurte- 73 Benedict v. Barling, 79 Wis. nance. The fact that the landlord 551, 48 N. W. Rep. 670. increases the size of the stairway 422 LAW OP LANDLORD AXD TENANT. ing was a temporary stairway which was partially bnilt over a stranger's property. The tenant on the removal of this stairway has a right to construct another on the premises of the land- lord, though by doing so he may injure the occupant of a lower story. On the other hand, the landlord under such circum- stances is entitled to have his convenience and interest taken into account in the selection of the mode of constructing the new stairAvay, and the place where it shall be put.'^* Generally an express stipulation for access to an upper floor will be construed liberally in favor of the tenant. A provision in a lease of upper rooms in two adjoining houses that the tenant shall have free and unobstructed use of a stairway in one of them will permit him to use a stairway in the other house, which is the only means of access to both his apartments."'^ The tenant's use of the stairs and entryways must be reasonable. He can use them for exit and egress not only for himself and family, but for his guests and business callers. He cannot use them for storage purposes nor as a loitering place to indulge in social intercourse. The right of a tenant to the use of a hallway or alley to gain admit- tance to the premises for ordinai'y housekeeping purposes, does not permit him to use the same as an entrance to a gymnasium connected with a boys' school. Nor can he use the common means of access to his apartments and that of others in such a way as to be objectionable to other tenants without their con- '* Chase v. Hall, 41 Mo. App. 15. ate easements in favor of a ten- The lease of rooms in an upper ant, and in case of necessity an floor includes as an incident easement may be implied. Neithisr everything necessarily used with the landlord nor any other ten- or reasonably necessary to the use ant either by virtue of the ten- thereof. If there is no access to ancy or by authority of the land- the upper rooms except through lord has any right to obstruct the the entryway and stairway an entry or passageway so as to im- easement In the same for the ten- pede access to rooms occupied by ant and for his customers and other tenants and any obstructions visitors will be clearly presumed are nuisances and may be re- from the circumstances and from moved. Miller v. Fitz Gerald Dry the obvious intent of the landlord Goods Co., 62 Neb. 270, 272, 86 N. in constructing the building and W. Rep. 1078. leasing it in the way he did. A fr Cowen v. Truefitt, 67 L. J. Ch. tenant may not acquire an ease- 095; (1898) 2 Ch. 551, 79 L. T. ment by prescription against his 348, 47 W. R. 29. landlord. But a landlord may ere- PROPERTY WHICH IS INCLUDED IN THE LEASE. 423 sent.''® The landlord's implied oblifration to furnish means of access is confined to the ordinary means as afforded by stairs, hallways and doors suited to the ordinary demands of modern life. The landlord is under no implied obligation to the tenant to furnish him fire-escapes even where the duty is imposed upon him specifically by statutory regulation. The owner of a theatre is not bound to the lessee thereof, to provide it with addi- tional exits for use in case of fire as required by statute where he has only covenanted to keep the premises in ordinary repair or to maintain the property in a suitable condition for use. His failure to do so when requested by the tenant is not a breach of a covenant for quiet enjoyment. ^^ The owner of a building let out in separate offices or lofts for business purposes is by im- plication bound to afford means of access to and from the sev- eral apartments or offices at all reasonable times and under all reasonable eircumsatnces. He would, for example, be bound to keep the front door of the building unlocked during the hours that the several offices or lofts would be in use according to the circumstances of the tenant's occupation. If he knew that a tenant hired offices with an intent to use them daring the night as well as during the day, he would be under the necessity of affording him access after dark. But in the case of a building, the offices in which are let mainly to lawyers, the landlord is under no implied obligation to keep the front door open and un- locked during the night or upon a Sunday or a holiday Avhich is dies iion in the absence of an agreement by him to that effect. His failure to do this does not render him liable to a tenant for damage caused to the property of his tenant by reason of an unusual and unprecedented fire which took place upon a Sunday, because the tenant was not able to remove his personal property through the front door A\hich was closed and locked.''* "c Gooch V. Furman, 62 111. App. used they greatly obstruct access 340. to the premises on the upper 77 Taylor v. Finnigan, 189 Mass. floors occupied by other tenants. 568, 573. 76 N. E. Rep. 203. A The tenant on the first floor must lease of the first story, basement not, however, use or keep the and cellar "with the appurte- hatchway open unnecessarily, but nances" give a lessee the right to must use it only in good faith use a hatchway, tackle and fall to to let down or hoist up goods, deposit his goods in the cellar or Browning v. Delasme, 5 N. Y. Su- to hoist them to the second fioor, per. Ct. 13, IS. though while they are being thus 7s Whitcomb v. Mason, 102 Md. 424 LAW OF LANDLORD AND TENANT. § 282. The right to use an elevator. Growing out of the proposition that where a tenant hires a room or a floor in a building the right to use all apparent means of access and exit passes to him as an appurtenant, it may safely be said that in some cases an absolute right to the use of an elevator would be implied in favor of a tenant. It is obvious that in modern build- ings of very great height which are leased in separate apart- ments or offices to separate tenants, the use of the stairway and halls affords a very insufficient and inadequate means of access. In such buildings, as is well known, elevators for freight and passengers are usually installed. If, at the time of the hiring it should happen that there is no elevator in the building, and the tenant hires knowing this fact, it may well be doubted, in the absence of an express agreement, whether the landlord owes any duties to the tenant to install an elevator for his use. On the other hand, if the location of the premises which have been hired is such that access by way of the stairway is extremely in- convenient and particularly if it were the custom in the city where the building is located to have elevators in buildings of the character in question, an agreement might be implied on the 275, 62 Atl. Rep. 749. "The rea- building on Sunday as shown by sonable use of the outer doors, the evidence, through the open halls and stairways of such a door and hallway on the ground building so located so far at least floor, which connected with the as related to the lawyers' oflfices stairway, was in our opinion rea- required that they should be kept sonable and adequate for all ordi- open and free from improper ob- nary occasions. As illustrating struction during such hours of the the principles of the text it may day and evening as the tenants be well to cite certain cases where and persons having business with the use of halls and stairways was them might reasonably be expected involved as between owners and to desire access to the offices. But not as between landlord and ten- such use did not require that the ant. Thus, we have the case of doors, halls, etc., should be kept one building being erected on sev- in that condition throughout the eral lots, each of which lots are entire night, nor on Sunday, owned by separate owners, with which is dies non when secular one stairway giving access to the avocations are presumed to be building. In such cases each suspended. It certainly did not ov/ner would have the right to use require the outer doors to be Jvcpt the stairway and hall in common open on Sunday to such an extent which were passed by the convey- as to admit of the removal by the anc^ of his lease." Pierce v. Cle- tenants of large pieces of furni- land, 133 Pa. St. 189, 19 Atl. Rep. ture. The access afforded to the 352. PROPERTY WHICH IS INCLUDED IN THE LE.VJSE. 425 part of the landlord to install one. But if, on the other hand, there is an elevator in active operation when the office in the building is leased, it will unquestionably be implied that the landlord agrees to maintain it and to permit it to be used, if its use is reasonable and necessary for the beneficial occupancy of the rooms which have been let, and if from the construction of the elevator and of the passageways in the building, it was ap- parent that the elevator was intended for the general use of the tenants. But, where the elevator is not intended to be used, by the occupants of any particular part of the building, the mere fact that it might be convenient for them to use it does not imply any easement in its use where suitable means of access were fur- nished by the halls, passageways or doors. "Where a person be- came the tenant of a basement which was entered from the street by doors and steps in front of the building and which was sep- arated from the elevator by a solid brick partition so that there was at no time access to the elevator from the basement, the ten- ant is not entitled to use the elevator for hoisting goods from the basement to the sidewalk and lowering them from the sidewalk to the basement. The fact that while the tenant occupied rooms on an upper floor of the building in addition to occupying the basement, the landlord stipulated in the lease that he might use the elevator to convey his goods to the basement from the upper floor gives him no right to use the elevator after he has ceased to occupy the upper floor.'^^ T9 Cummings v. Perry, 169 Mass. ants to use it, we assume, may be 150, 38 L. R. A. 149, 47 N. E. Rep. implied if this is reasonably nec- 618, in which the court by Field, essary for the beneficial occupa- C. J., says: "It is true that, when tion of the rooms let, and if from a person hires a room in a build- the construction of the elevator, ing, a right to use the apparent and of the passageways it is ap- means of access and exit often parent that the elevator was in- passes as appurtenent to the prem- tended for the use of the tenants, ises hired. In modern buildings But in this case it is apparent that of great height this doctrine we the elevator was not intended assume may be applied to eleva- originally to be used by the occu- tors. Whether an active duty to pants of the basement room, that maintain an elevator for the use although it might have been con- of tenants can be implied may be venient for them to use it in con- open to question, but if an ele- nection with the sidewalk, yet vator is in fact maintained by the suitable means of ingress and landlord, the duty to permit ten- egress had been furnished by the 426 LAW OF LANDLORD AND TENANT. § 283. Electric light as an appurtenant. Under the rule that whatever is neeessar^^ or essential to the proper enjoyment of the term granted to the tenant may be regarded as and will pass as an appurtenant, a landlord, who during the term, has fur- nished electric lighting for rooms in the building leased by him may be compelled to continue to do so. Undoubtedly he would be compelled to do this upon an express contract to furnish the light where he or his agent in leasing the rooms had informed the les- see, expressly or by implication that the supplying of electricity for illumination was an appurtenance of the premises and would be included in the lease as such, and the incoming lessee made the lease in reliance upon such statement. The tenant's case would be greatly strengthened by the fact that the character of the business of the lessee was known to the lessor or to his agent to be such that electric lighting was indispensable. For, if the incoming tenant is lead to expect the electric lighting of his rooms at the cost of the landlord, it may fairly be assumed that the latter is to be compensated for it by a larger rent than he would otherwise receive. The tenant has a right to this species of illumination of which he cannot be deprived by the substitu- tion of an inferior lighting method. Such deprivation might under some circumstances amount to an eviction though not necessarily an eviction under other circumstances.^** And these rules which are applicable to the gas or electric lighting may apply with equal cogency to other and similar modern improve- ments such as steam heating and the like which, in accordance with the present method of living, in flats and apartments, are regarded as indispensable to a complete and adequate enjoy- ment of them by those who occupy them as lessees. § 284. Easement of w^ater supply. As a general rule it may be said that it is not the duty of the landlord to furnish water for the tenant to be used for drinking or cleaning purposes un- ' less he has expressly or by implication agreed to clo so. Nor is he under any obliiration to supply pipes or faucets for the dis- steps and door.s from the base- room; and the way through the ment room into the street; that engine and boiler room was not a at no time was there any access common passage way." from the elevator directly from «p Parish v. Vance, 110 111. App. the basement room; that the ele- 50, 55 vator did not adjoin the basement PROPERTY WHICH IS INCLUDED IN THE LEASE. 427 tribntion of water unless by agreement, express or implied.*^ This general rule must be qualified by the circumstances of some cases. Thus if at the date of the execution of the lease the premises are supplied with water by a system of pipes and fau- cets which has either been installed therein by the landlord him.- self, or by his predecessor in interest, and if prior to the date of the lease the landlord has paid the water rates and taxes for the premises, the water together with the means by which it is distributed throughout the building and utilized by the tenants will pass as an appurtenance, being an incident of the building to the knowledge of the landlord and essential to its convenient enjoyment and use by the tenant. Under such circumstances, nothing short of an express agreement on the part of the tenant to furnish water and the apparatus for its distribution at his own expense would justify the landlord in discontinuing to pay the water rates or in removing the apparatus for its supply and distribution. But the rule of caveat emptor as applied to ten- ants may be invoked in the case of the quality or quantity of water which is supplied. It is the duty of the tenant of a dwelling or slore to ascertain the condition and quantity of water supplied and the condition of the pipes by which it is supplied to the house and distributed through it. If he fails to do this at the date of the lease, he cannot hold the landlord re- sponsible for a deficiency in the quality or quantity of the water and refuse to pay rent because he cannot procure water on the premises except in the case of material misrepresentation by the latter.*- In regard to the water supply, a tenant is not justified in removing from the premises and refusing to pay rent for the reason that the water gives out or has become unfit for use where it appeared that he had examined the water supply before making the lease, going over the property in com- pany with one of the lessors and then knew that the premises were supplied vnih water by a cistern only, the supply depend- ing wholly upon the rainfall, that the lessor had only recently acquired the ownership and that what he said to the lessee about the quantity and quality of the water was merely a repetition 81 Sheldon v. Hamilton, 22 R. I. S2 Lewis v. Clark. S6 Md. 327, 2S0, 233, 47 Atl. Rep. 316; White- 330, 37 Atl. Rep. 1035. head v. Comstock & Co., 25 R. I. 423, 427, 56 Atl. Rep. 446, 448. 428 LAW OF LANDLORD AND TENANT. of what a former owner had told him and that the lessee knew this when he executed the lease. ^^ In modem times the presence of apparatus and i^ipes for the supply of water together in build- ings in towns and cities by which the tenants occupying such buildings are supplied with water for drinking and washing pur- poses is so well nigh universal that ordinarily such a supply of water with the apparatus and pipes would be considered an ap- purtenance in case the demised premises were in the city. A very different rule would obtain where the premises were in a small village or were a farm. If running water is an absolute necessity for the tenant to have in order that he may use the premises, a right to use the running water which is in the prem- ises will pass as an appurtenance to the premises. The character of the prior use of the building is always material. Thus, a lease of a factory which at the date of the lease contained mach- inery operated by water power by implication conveys the right to use water which is under the control of the lessor.®* The designation in the lease of the pui-pose for which the demised premises is to be used is also material. If the future use of the 83 It is not the duty of a land- lord to furnish water for the use of a tenant unless he has agreed to do so. The pipes and fixtures are appurtenances of the house, as gas pipes and fixtures in place at the time of the letting are, and the use of them necessarily passes "With the tenement. But the water, like gas, is a commodity, and in no way attached to the realty not the property of the landlord, but to be furnished for a price by a third party. It was not the duty of the landlord to keep the pipes in repair even (McKeon v. Cutler, 156 Mass. 296), much less to keep them filled with water. An agree- ment on the part of the landlord to pay water bills or gas bills may be implied from circumstances, but the fact alone that the house is provided with pipes and fixtures is not sufficient. McCarthy v. Humphrey, 105 Iowa, 535. By the court in Sheldon v. Hamilton, 22 R. I. 230, 233, also holding that an implied obligation on the part of the landlord to pay for water used by his tenant might arise from a general custom which the law would attach to the lease but the custom would have to be uni- versal and reasonable. In the ju- risdiction where this case was de- cided water was supplied to be paid for either by meter measure- ment by the cubic foot or at a fixed sum for each faucet, bath tub, etc. In the latter case the landlord knows in advance what he will have to pay and the infer- ence that he has agreed to pay it and has charged it in the rent is stronger than where the amount is unknown and may by the ten- ants waste be very great if it is to be paid according to a meter." 84 Wyman v. Farrar, 35 Me. 64. PROPERTY WHICH IS INa.UDED IN THE LEASE. 429 building by the tenant requires the supply of running water, the right to have the water kept running by the landlord will pass as an appurtenance without express words. So a lease of a por- tion of a building "to be used as a bakery" includes the right to water as belonging and necessary to enable the lessee to carry on the business of a baker.^^ One of several tenants to whom a building is let in separate apartments may not use water run- ning in the apartment of another tenant unless by an express agreement of the landlord and the consent of the tenant he is al- lowed to do so. The entrv' of one tenant into the apartment of another without the consent of the latter, for the purpose of pro- curing water is a trespass and intrusion which the law does not countenance. "Where a building is let in separate apartments to several tenants, each of them has the absolute right as an ap- purtenance to that portion which is demised to him to use the toilet and running water in a portion of the building which is Tinder the exclusive control of the landlord. It does not matter whether the right to the use of water is conferred by an express provision of the lease or not. If, when the lease of the separate apartment is made, the tenants of the building have a right to use the water and the toilet which is located in a portion of the same under the exclusive control of none of them, that right will unquestionably pass as an appurtenant. But the right of a ten- ant to use a toilet and running water in that portion of a build- ing which is not leased to him and which is conferred upon him by an express provision of the lease, will be protected by an in- junction, and the landlord will be restrained from obstructing the tenant's enjoyment of this right by closing a passage way, though there were other means of reaching the running water.^® A lease of the ' ' north side " of a building ' ' consisting of a store- room, and five rooms on second and third floors of the same, to- gether with access to the same through the hallway and porch," does not give the lessee the exclusive privilege of using a bath room on the north side which was in common use by all ten- ants.®'' A landlord who agrees with his tenant "to furnish the necessary seed rice and the water for irrigation of the rice crop 85 Gans V. Hughes, 14 N. Y. s- Needy v. Middlekauff, 102 Md. Snpp. 930, 931. 181, 62 Atl. Rep. 159. 8R Cooley V. Cummings, 16 N. Y. St. Rep. 947. 430 LAW OP LANDLORD AND TENANT. or SO much water as can be furnished by the irrigation well on the land" is not absolutely bound to supply irrigation for the Avhole crop. His obligation is measured by the capacity of the well and if the well flows sufficiently he must furnish water for the whole crop. He is bound to do what he has. agreed to do in all respects and he will not be excused for failure to do so though he may have used ordinary care and diligence to supply the water. ^^ § 285. The riparian rights of the lessee. In treating of the rights of a tenant who has leased lands which front or face upon a river, lake or stream whether navigable or not, it will be im- possible owing to the limits of space and indeed out of place in a treatise of this character, to give any exhaustive or extended consideration to the general law of waters or water courses. In determining the rights of a lessee of riparian lands to the use of the water or of the land under water, the first thing to be determined is the character and extent of the rights of his les- sor in the waters or in the land under water. As regards the ownership of land under water, it may be said that so far as non-navigable streams are concerned, each riparian proprietor owns the land under water down to the thread or center line of the stream in the absence of proof to the contrary. Prima facie, therefore, a conveyance of land bounded by a non-navi- gable stream makes the grantee the proprietor of half the land covered by the stream ad medium filiim aquae. So, a demise of land "bounded on the west by the river," in the absence of any- thing to the contrary, conveys therein to the lessor one-half of the bed of the soil of the river to the middle of the stream.^^ The lessee of riparian land is clothed with all the rights which were enjoyed by his lessor in the land under water. He may erect piers upon land under water for his own personal use or for the use of the public with his permission. He may erect a mill and employ the force of the running water to operate and propel the machinery in it. He may prevent the diversion of the water. For a lessee of riparian land is clothed with the same rights as an owner in possession to prevent a threatened diversion of water."" A lease of land having a frontage on the «8 Duson V. Dodd, 101 S. W. «" Dwyer v. Rich, Ir. R. 6 C. L. 1040. 144. 8" Crook V. Hewit, 4 Wash. 749. PROPERTY WHICH IS INCLUDED IN THE LEASE. 431 water confers upon the lessee by implication the right to a free and unrestricted access to the shore from the water and to the water from the land, in the absence of express restrictions. The tenant therefore, has a right to moor his boats at the shore and to permit others to do so and to erect and maintain wharves. It is immaterial whether the word "appurtenances" is in the lease or not. So, when a boat club leased land fronting on a river with all the benefits and privileges thereunto belonging, the action of the landlord in mooring a boat in front of the leased land is unlawful and so far as it cuts off the boat club from using the water front it is an eviction."^ So, a lessee of water front prop- erty is entitled to the use of a dock attached to the water front for a permanent purpose and connected with it by a permanent staging.®- So. also, a lessee of riparian land has the right to all the advantages to be derived from the stream flowing in its natural course over and past his land, and to use the stream as he pleases for any purpose of his own which is not inconsistent with similar rights in the proprietors or occupants of riparian lands, below or above. This rule as to the use of flowing streams is applicable both to navigable and non-navigable streams. None of the proprietors or occupants of land under or facing on water can legally diminish the quantity or injure the quality of the water which would otherwise naturally descend, nor can any proprietor or occupant of land throw back the water without the license or grant of the proprietor above.^^ So, where a lease 01 Pridgeon v. Boat Club, 66 same unobstructed." See, also, Mich. 326, 33 N. W. Rep. 502, Hooper v. Farnsworth, 128 Mass. where the court says: "The sub- 4S7; Underwood v. Stuyvesant, 19 ject cannot be discussed, except in Johns. (N. Y.) 181, 10 Am. Dec. connection with the object and 215; Newman v. Metropolitan El. purpose for which the lot was R. Co., 10 N. Y. St. Rep. 12; Oliver rented and occupied. The dis- v. Dickinson, 100 Mass. 114. turbance of the lessee's beneficial 92 Cochran v. Ocean Dry Dock enjoyment of the water front of Co., 30 La. Ann. 1365, 1366. the premises amounts to an evic- o?. Merritt v. Brinkerhoff, 17 tion, actual if any exists and not Johns. (N. Y.) 306, 320; Hetrick constructive. The right to enter v. Deutschler, 6 Pa. St. 32; Wood- up the land leased was of no in- bury v. Short, 17 Vt. 387; Wallace terest or benefit to the defendant, v. Drew, 59 Barb. (N. Y. ) 413, only as it furnished a water front 423; Acquackanonk Water Co. v. upon which the club could store Watson, 29 N. J. Eq. 366; Mason its boats and launch and land the v. Hill, 5 B. & Aid. 1, 24; Wright 432 LAW OF LANDLORD AND TENANT. conveyed the riglit to draw a certain quantity of water from a canal owned by the lessor to the mills of the lessees, and con- t-ained a raservation excepting and reserving to the said lessors the control of the water in the said river and in all mill ponds, bays, lakes and reservoirs at and above said premises with the right of holding back and retaining and discharging the water therefrom at their pleasure, it was held that the lessors could not at their pleasure erect a barrier to prevent the flow of water into their canal and in such way terminate the lease where such course was not necessary in their general control and manage- ment of the Avater."* Every tenant or occupant of riparian land has a right to the use of water flowing by his land for his domes- tie purposes as for watering his cattle. He may divert the stream for the purpose of irrigating his land provided he does not thereby interfere with the rights of proprietors below or above him.*^' So, also, a tenant may divert the water of a. flowing stream and he may by machinery pump up the water and convey it by pipes to a tank or reservoir and thence into his bams or dwel- ling house and there use it for his domestic purposes. Priority of occupation and use of water by a mill owner give him no right to make an unreasonable use of the water by which the owners above or below him will be deprived of the beneficial use of the water. He simply acquires the right to use the water* in its natural flow. The lessee of a mill site has no greater right tx) use the water than the lessor would have.®^ V. Howard, 1 Sim. & Stu. 190, 203; tion or alteration. No proprietor Acton V. Blundell, 12 M. & W. 348, has a right to use the water to 349. the prejudice of other proprietors 64 Cole V. Lake Ck)mpany, 54 N. above or below him, unless he has IL 242. a prior right to divert it or a title »s Blanchard v. Baker, 8 Me. 2&8. to some exclusive enjoyment. He 86 The elementary and estab- has no property in the water It- lished principles of law relating self, but a simple usufruct while to the use of running waters as it passes along. Agua currit et set out by Chancellor Kent in his debet currere ut currere solebat Commentaries, vol. Ill, § 52, are is the language of the law. as follows: "Every proprietor of Though he may use the water lands, on the banks of a river, has while it runs over his land, as an naturally an equal right to the use incident to the land he cannot un- of the water which flows in the reasonably detain it, or give it stream adjacent to his lands, as it another direction, and he must re- was wont to run, without diniinu- turn it to its ordinary channel PROPERTY WHICH IS INCLUDED IN THE LEASE. 433 § 286. Right of the tenant to accretions. It is a general rule that accretion by alluvion belongs to the owner of the adjacent soil. In other words, one who owns land M^hich borders upon waters, whether navigable or non-navigable, acquires title to all additions to the land which are caused by the gradual deposit of particles of soil, which deposit is called alluvion, irrespective of the fact that such deposit was or was not the result of natural causes. Deposits made upon the sea shore are usually the result of the natural action of the winds and waves. In the case of streams and rivers, the accretions may result from natural causes, as the washing down of silt from up stream by the opera- tion of the current, or from artificial causes, as, when a dam is erected by which the volume of the water is diminished, or its course deflected. In either case provided the growth of the addi- tion is so slow as to be imperceptible, the added land belongs to the owner. He takes it, however, subject to the interests of any person to whom he has granted an estate in the land border- ing upon the water. Thus, a lease for a long period of years of a tract of land described as bounded bv the banks of a river con- when it leaves his estate. Without the consent of the adjoining pro- prietors he cannot divert or di- minish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprie- tors above, without a grant or an uninterrupted enjojTnent of twenty years which is evidence of it. The owner must so use and apply the water as to work no material injury or annoyance to his neighbor below him, who has an equal right to the use of the same water. Streams of water are intended for the use and comfort of man and it would be unreason- able and contrary to the universal sense of mankind to debar every riparian proprietor from the ap- plication of the water to domestic, agricultural and manufacturing purposes, provided the use of it 28 be made under the limitations which have been mentioned, and there will no doubt inevitably be, in the exercise of a perfect right to the use of the water, some evap- oration and decrease of it, and some variation in the weight and velocity of the current. But de minimis non curat lex and a right of action by the proprietor below would not necessarily flow from such consequences, but would de- pend upon the nature and extent of the complaint or injury. All that the law requires of the party by or over whose land a stream passes is that he should use the water in a reasonable manner, and so as not to destroy or render useless the application of the water by the proprietors above or below the stream." Acquackanonk Wa- ter Co. V. Watson, 29 N. J. Eq. 366, 370. 434 LAW OP LANDLORD AND TENANT. fers the right upon the tenant to occupy land which is created by accretion during the term.®' And a lease of accretion created after the land to which it has been added had been leased and before a grant in fee to the first lessee, does not convey the re- version in fee in the accretion to the second lessee but the fee is conveyed to and becomes vested in the first lessee by the subse- quent grant to him.®^ But when the lease has expired, the par- ties may make a new contract which may or may not include the land which has formed by accretion. And where under a long lease the rental of the land is to be determined by an ap- praisal of its value at intervals, the lessor is entitled to have accretions which have been formed by the rescission of a river taken into account.^® The same principles and rules are appli- cable to reliction which is the increase of land by the retreat or recession of water from the shore of a lake, river or sea. The owner of property which is stranded upon the land of another by a flood or by the gradual flow of a stream does not thereby lose title to it. It does not thereby become the property of the owner ■of or of the occupant of the land. The owner of the stranded property may abandon it or not as he may elect. He may enter upon the land to remove his property and his refusal or neglect to do so does not confer title upon the occupant or owner of the land. The landowner may, after notice to the owner of the stranded goods, cast them back into the water. As against a landlord owning riparian land and his tenant, the tenant may hold stranded property which is cast upon the demised premises though his possession thereof confers no title upon him as against the true owner.^ § 287. Ice forming on land demised. Ice which forms on the surface of a non-navigable stream is the property of the owner of the bed of the stream or pond.^ Hence, the landowner or his oT Rutz V. Kehn, 143 111. 558, 20 Foster v. Juniata Bridge Co., 16 N. E. Rep. 553, following Cobb v. Pa. St. 393, 55 Am. Dec. 506; Et- Lavalle, 89 111. 331, 335, 31 Am. ter v. Edwards, 4 Watts (Pa.) 65; Rep. 91. Berry v. Carle, 4 Greenl. (Me.) 08 Rutz V. Kehn, 143 111. 558, 29 269; Treat v. Lord, 42 Me. 552; N. E. Rep. 553. Carter v. Thurston, 58 N. H. 104, no Allen v. St. Louis, I. M. & S. 42 Am. Rep. 584; Sheldon v. STier- R. Co., 137 Mo. 205, 38 S. W. Rep. man, 42 N. Y. 484; Brown v. Chad- 957. bourn, 31 Me. 9, 50 Am. Dec. 641. 1 Upon the general topic see ~ State v. Pottmeyer, 33 Ind. 402, PROPERTY WHICH IS INCLUDED IN THE LEASE. 435 assigns liave the right to harvest it and dispose of it subject to the rights of other riparian owners. The lessee of the land upon which the ice forms has generally and in the absence of an ex- press reservation in favor of the lessor the same right to dis- pose of the ice as his lessor would have had but for the lease.^ Ice on leased land as soon as harvested, is the personal property of the tenant.* Hence, a mortgagee who purchases land on fore- closure is not entitled to ice cut by a tenant of the mortgagor before foreclosure, though the pond from which it was cut and the house in which it is stored are covered by and sold under the mortgage.^ It follows from this that ice unharvcsted but on the land at the time of sale under the foreclosure passes to the purchaser as against a lessee.® We must now consider the case of ice which forms, not upon water which covers all or a portion of the leased premises, but which forms on 5 Am. Rep. 424; Brockville, etc., Co. V. Butler, 91 Ind. 134, 46 Am. Rpp. 5S0; Marsh v McNider, 88 Iowa, 390, 395, 55 N. W. Rep. 469, 45 Am. St. Rep. 240, 21 L. R. A. 333; Richards v. Gauffret, 145 Mass. 486; Higgins v. Kusterer, 41 Mich. 318, 32 Am. Rep. 160; Bige- low V. Shaw, 65 Mich. 341, 32 N. W. Rep. 800; Myer v. Whitaker, 55 How. Pr. (N. Y.) 376; Reysen v. Roate, 99 N. W. Rep. 599, 92 Wis. 543. 3 A lease of an artificial pond to a manufacturing company oper- ating a steam plant "to be used for flowage purpose only, with the exclusive right to flow, store and use water in the said pond," to a certain amount, the lease also con- taining a reservation to the owner of the exclusive right to take ice from the pond does not confer the right upon the lessee to flow into the pond and store therein hot water so as to melt the ice, even though It appear that the original purpose of the establishment of the pond was manufacturing and the taking of ice therefrom had always been merely incidental. Walker Ice Co. v. American Steel & Wire Co., 185 Mass. 463, 70 N. E. Rep. 937. 4 Ward V. People, 6 Hill (N. Y.) 144; Gregory v. Rosenkrans, 72 Wis. 220. 5 Gregory v. Rosenkrans, 72 Wis. 220. G The annual ice crop on a pond which may or may not form every year, and which if not removed would perish or melt away, is the most ephemeral of any of the nat- ural products of land. The cases applicable to the cutting of timber by a tenant do not apply at all. The ice crop may be likened to grass or cranberries or other un- cultivated fruits which grow nat- urally from the soil; or to the an- nual crops raised by agriculture; but less than any of these so far as its removal would be an injury to the freehold or affect the value of the land. Gregory v. Rosen- krans, 72 Wis. 220, 224. 436 LAW OP LANDLORD AND TENANT. water npon which the leased premises abuts. Though lui- harvested ice is more readily secured and controlled than the water which forms it, the rules which govern the rights of the riparian owner to water are applicable to it. The use of the water is appurtenant to the land which it covers and this right passes to the lessee to vest in him during the continuance of the lease. He may cut the ice not only for his own use in con- nection with the enjoyment of the land but for the purpose of selling it to others as well.^ But a lease of land on the edge of a mill pond but including no part of the pond, "for the purpose of building and maintaining an icehouse thereon" and providing for a forfeiture if it should be occupied for another purpose is not by implication a lease of the pond nor does it confer a right upon the lessee to harvest ice.* And the fact that a tenant of riparian land bordering on a lake or pond was permitted by his landlord to take ice from the pond, does not of necessity establish his right to take ice. The permission of one w^ho owns land cov- ered by water that another may cut and take ice is a mere license which may be revoked at any time. And it is not material for how many years the owners permit another to cut and take ice when the permission is a license merely. The right to cut and re- move ice may be leased by the riparian proprietor aside from a lease of the land itself. And the lessee may enjoin or maintain an action at law against a subsequent purchaser or lessee of the land attempting to cut ice thereon." A right to cut and take ice is perhaps more in the nature of a profit a prendre than of an easement, though it may come within the definition of an easement under certain circumstances.^" But whether the right to cut ice ■ Marsh v. McNider, 88 Iowa, riparian lands was not to enjoy the 390, 396, 55 N. W. Rep. 469, 45 right to harvest ice. Am. St. Rep. 240, 21 L. R. A. 333. s Oliphant v. Richman, 67 N. J. This would doubtless be the rule Eq. 286, 59 Atl. Rep. 241. where the lease contains no reser- 9 Oliver v. Olmstead, 112 Mich, vation of the ire which forms on 4S3. See, also, Larman v. Benson, the water upon which the land 8 Mich. 18, 77 Am. Dec. 435; abuts There may be circumstance Grand Rapids, etc., Co. v. South when from the use for which the Grand Rapids Co., 102 Mich. 227. land is leased or from the circum- lo Walker Ice Co. v. American stances of the parties a presump- Steel & Wire Co., 185 Mass. 463, tion would arise that the lessee of 466. PROPERTY WHICH IS INCLUDED IN THE LEASE. 437 De an easement or not, it cannot be doubted that it may be ex- pressly or by necessary implication attached to a demise of land.^^ § 288. The lease of a mill or of a mill privilege. In a lease of a mill or a mill privilege, or mill site, these words, and similar expressions will be construed by substantially the same rules as will apply in the ease of a sale of a mill. Usually the expres- sions, ''mill dam,-' "mill privilege," "mill site" and other similar terms, will be construed to include the land upon which the mill is located, and the buildings, machinery and other fix- tures necessary or proper to be used in connection therewith as well as the right to use the water, where the machinery is pro- pelled by water power, to the same extent as it was used at the making of the lease. ^' Thus, a mill site or the privilege of a mill includes not only the site of the mill buildings but also the use of the water power connected therewith for milling pur- poses.^^ In other words, a demise or a grant of a mill carries also the use of the power of water in the stream adjacent thereto, so far as the same is necessary to its enjoyment, with all of the incidents and appurtenances so far as the grantor or lessor had any right to convey them. For the water power which has ordi- narily been used with the mill is an absolute necessary incident to the mill and is therefore an appurtenance and will pass as such even though the word "appurtenance" is not mentioned in the conveyance.^* The lessee may use the water power and all 11 Where the owner of land con- mond v. Green Bay, etc., Canal taining a pond leased it to an- Co., 35 Wis. 41, 45, 46; Moore v. other without reserving the right Fletcher, 16 Me. 63, 65, 33 Am. to cut ice thereon, which she had Dec. 633, 634; Farrar v. Cooper, previously leased to a third party, 34 Me. 394, 397; Howard v. Wads- it was held that the lessor of the worth, 3 Me. 471, 473. land, having been the agent of the i* Curtis v. Smith, 35 Conn. 156, owner to collect rents and having, 158; Stackpole v. Curtis, 32 Me. in such capacity, collected rents 383, 385; Binney's Case, 2 Bland for the owner from the lessee of (Md.) 114. the right to cut ice, it would be 1 4 Hammond r. Woodman, 41 presumed from this fact; at least Me. 177, 66 Am. Dec. 219, 223; where the lease was silent that Farrar v. Cooper, 34 Me. 394, 397; the parties to the lease of the land Blake v. Clark, 6 Me, 436; Moore did not reserve the right to cut v. Fletcher, 16 Me. 63; Crosby v. Ice. Myers v. Bolton, 89 Hun, 342, Brodbury, 20 Me. 61; Richardson 35 N. Y. Supp. 577, 70 N. Y. St. v. Bigelow, 15 Gray (Mass.) 154, Rep. 198. 156; Prescott v. White, 21 Pick. 12 Anderson's L. Diet. 675; Ari- (Mass.) 341; Church v. Walker, 438 LAW OF LANDLORD AND TENANT. its incidents in the mode it has been used before he enters. So, where the owner of an ancient mill to which there has been attached a raceway or artificial canal for carrying off the water froin the mill and without the free and uninterrupted current of which the mill could not be worked and such canal or raceway has from time immemorial passed through the land of another and there is no grant or contract regulating the rights of the parties, the lessee of the mill will have the right during the term to enter on the land through which the raceway flows and to clear out obstructions therefrom, in the usual and ordinary man- ner in which such canals are cleaned.^^ The lease of a mill or a lease of land on which a mill is situated, or is to be situated, car- ries with it, as incidents of the mill, the right to raise the mill pond, and to flow the lands above the mill as high as the dam has been usually kept up, to maintain the dam and flume which are necessary to support the water at that height, and to support and use the penstocks, aqueducts and channels which are neces- sary to convey the water to the mill, and the channels and race- ways which are necessary to conduct the water from the mill to the stream below in the manner in which they have been kept and used immediately prior to the conveyance, so far at least as the lessor has a right to convey such privileges.^' For, by a lease of a mill privilege, particularly where it is mth ail the appurtenances of the same, there passes all the privileges and easements which had prior thereto, become attached to the same. The lessee has the right to erect and maintain a dam, to erect mills, to flow water upon the lands of the lessor or others so far as may be necessary for his purpose, to lay logs or lumber on the land or under Avater and to build and maintain a mill yard.^'' 124 Mass. 69; Otto v. Kreiter, 110 (N. Y.) 290; Oakley v, Stanley, 5 Pa. St. 370, 378; Peters v. Grubb, Wend. (N. Y.) 523; Kilgour v. 21 Pa. St. 455; Swartz v. Swartz, 4 Ashcomb, 5 H. & .J. 82; Canham Pa. St. 353, 359, 45 Am. Dec. 697. v. Fisk, 2 Cromp. & J. 126. A 16 Prescott V. White, 21 Pick. lease of premises to be used as (Mass.) 341, 342. a tan yard, bordering on a stream, icDunklee v. Wilton R. Co., 24 flowing over land owned by the N. H. 489, 495; Pettee v. Hawes, landlord, does not confer the 13 Pick. (Mass.) 323, 327; Gurney right upon the tenant to throw V. Ford, 2 Allen (Mass.) 576, 578; tan bark into the stream. Howell Gibson v. Brockway, 8 N. H. 465, v. McCoy, 3 Rawle (Pa.) 256. 471; Leroy v. Piatt, 4 Paige (N. i7 Thompson v. Banks, 43 N. II. V.) 77; Burr v. Mills, 21 Wend. nw. : PROPERTY WHICH IS INCLUDED IN THE LEASE. 439 So. the lease or a grant of a "mill site" will be construed to include all the land on the stream upon which the mill is actual- ly situated, or, if there is no mill then existing, it will include such quantity of land as will be proper and necessary for the purpose under the particular circumstances of the case, the most material of which is the right of the lessee to avail himself of the full enjoyment and possession of the water power. As generally kno-^ii under such circumstances, the use of the soil on the banks of the stream and under the water is the principle thing granted and it will be implied that the lessee or grantee shall have full power to use any portion of the soil for any pur- poses consistent with operating the mill. So, also, words of description in a demise of a mill site and of a water power are not given a restrictive meaning but are usually broadly con- strued so that the lease of a mill and water power for use in a saw mill would not of necessity restrain the lessee to such use. He might use it for any legitimate mill purpose. ^^ § 289. Action for damages for the violation of an easement. At the common law an action on the case could be maintained to recover damages for an injury to the enjoyment of a right of way.^® And it was also settled that a tenant could maintain an action where the injury to the easement resulted in a direct loss or inconvenience to him. If the injury to the easement results in 18 Ashley v. Pease, 18 Pick. is Wetmore v. Robinson, 2 (Mass.) 268, 275. "Where a party Conn. 529; Martin v. Bliss, 5 has erected a mill on his own Blackf. 35, 32 Am. Dec. 52; Hinks land, and cut an artificial canal v. Hinks, 46 Me. 423; Wright v. for a raceway through his own Freeman, 5 Har. & J. 467; Cush- land, and then sells the land with- ing v. Adams, 18 Pick. 110; Bow- out the land thi'ough which such ers v. Suffolk Mfg. Co., 4 Cush. raceway passes, the right of such (Mass.) 332; Smith v. Wiggin, 48 raceway shall pass as a privilege N. H. 105; Carelton v. Cate, 56 N. annexed de facto to the mill and H. 130; Osborne v. Butcher, 26 necessary to its beneficial use. N. J. Law, 308; Lambert v. Hoke, Johnson v. Jordan, 2 Met. (Mass.) 14 Johns. (N. Y.) 383; Greenwalt 234, 37 Am. Dec. 85; Blake v. v. Horner, 6 S. & R. (Pa.) 70; Clark, 6 Me. 436; Nichols v. Luce, Shroder v. Brenneman, 23 Pa. St. 24 Pick. (Mass.) 102, 35 Am. Dec. 348; Jones v. Park, 10 Phila. (Pa.) 302." By Tenney, J., in Hammond 165; Shafer v. Smith, 7 Har. & J. V. Woodman, 41 Me. 177, 66 Am. 67; Marshall v. White, Harp. 122; Dec. 219, 223. See, also. New Ips- Wilson v. Wilson, 2 Vt. 68 wich Factory v. Batchelder, 3 N. H. 190, 14 Am. Dec. 346. 440 LAW OP LANDLORD AND TENANT. a damage to tlie inheritance by affecting its permanent value then the landlord can sue.-° If the injury to the easement is only temporary and is simply an inconvenience and annoyance to the tenant and simply reduces the benefit which he derives from the use of the premises during the term when the landlord cannot sue but the tenant can sue.^^ A tenant at will may main- tain an action for the interruption of a passageway to the use of which he is entitled and which is indispensable to him for the full enjoyment of his land.^^ § 290. The protection of the tenant's easements by an in- junction. The owner of property in whose favor an easement has been created, whether by implication or by an express agree- ment will be protected in equity against any infringement of his beneficial use and enjoyment of the same. An anticipated en- croachment upon his rights in the easement will be enjoined whether the encroachment is by the creator of the easement or by some other person. This is the general rule in equity and is recognized because of the fact that in most cases the remedy at law will be inadequate to protect the person whose rights are in- fringed.-^ This rule by which equitable protection is given to the enjoyment of easements has been applied by the courts to the protection of rights of way both of a public or private character. Thus, if there is an obstruction placed or erected in the way or road which prevents its use the obstruction will be regarded as a nuisance and its continuance will be enjoined on the application of the person injured.-* In all such cases, however, the party 20 Hamilton v. Dennison, 56 Weber v. Gage, 39 N. H. 182; Shaf- Conn. 359, 15 Atl. Rep. 748, 1 L. fer v. State Nat. Bank, 37 La. Ann. R. A. 287; Gushing v. Adams, 18 242; Johnson v. Shelter Island Pick. (Mass.) 110; Hasting v. Liv- Grove Camp Meeting Ass'n, 122 N. ermore, 7 Gray (Mass.) 194. Y. 330, 25 N. E. Rep. 484, 26 N. E. 21 Foley v. Wyeth, 2 Allen Rep. 755, affirming 47 Hun (N. Y.) (Mass.) 135; Avery v. New York 374; Haby v. Koenig (Tex.), 2 Central & H. R. R. Co., 7 N. Y. Posey, Unrep. Case, 439; Berkley Supp. 341. V. Smith, 27 Grat. (Va.) 892; San- 22 Foley V. Wyeth, 2 Allen derlin v. Baxter, 76 Va. 299, 44 (Mass.) 135; Hamilton v. Denni- Am. Rep. 165. son, 56 Conn. 359, 15 Atl. Rep. 748, 24 Stallard v. Cashing, 76 Cal. 1 L. R. A. 287. 472, 18 Pac. 427; Swift v. Coker, 23 Wheeler v. Bedford, 54 Conn. 83 Ga. 789, 10 S. E. Rep. 442. 20 244, 7 Atl. Rep. 22; Henry v. Koch, Am. St. Rep. 347; Shipley v. Cap- 80 Ky. 391, 44 Am. Rep. 484; les, 17 Md. 179; Schaidt v. Blaul, PROPERTY WHICH IS INCLUDED IN THE LEASE. 441 whose use of the right of way is prevented must establish his legal title to the easement in an action of law before he can ob- tain equitable relief. So, also, equity will protect the easement of light, air and view, in favor of the owner of the land to which they are attached.^^ The protection which is thus given to the owner of property in equity may be taken advantage of by a tenant. Upon the making of a lease whether of the whole prem- ises or of a part thereof, the right of the landlord to the enjoy- ment of any easements which may belong to the building at the date of the execution of the lease passes to his tenant so far as the possession of such rights are necessary to the full and complete enjoyment of the premises by the tenant. And if during the the term the lessor attempts to deal with premises in such a way as to deprive his tenants of the use of any easement to which he is entitled he will be enjoined from further interference with them and compelled to remove any obstruction already erected.^' G6 Md. 141, 6 Atl. Rep. 639; Bean V. Coleman, 44 N. H. 539; Bechtel V. Carslake, 11 N. J. Eq. 500; Bai- ley V. Schnitzlus, 23 N. J. Eq. 235, 22 Atl. Rep. 732, 32 Atl. Rep. 219; Wheeler v. Gilsey, 35 How. Prac. (N. Y.) 139; Herman v. Roberts, 119 N. Y. 37, 23 N. E. Rep. 442, 16 Am. St. Rep. 800; Deer v. Doherty, 26 Pittsb. Leg. J. (Pa. N. S.) 104. 25 Clawson v. Primrose, 4 Del. Ch. 643; Gwin v. Melmoth, 1 Freem. Ch. 505; Robeson v. Pit- tenger, 2 N. J. Eq. 57. 32 Am. Dec. 412; Dill V. School Board of City of Camden, 47 N. J. Eq. 421, 20 Atl. Rep. 739, 10 L. R A. 276; Hag- gerty v. Lee, 45 N. J. Eq. 1, 15 Atl. Rep. 399; Lattimer V. Livermore, 72 N. Y. 174. 26 As illustrating the protection which a tenant will receive in equity, the following cases may be cited, although in them the re- lief was granted to the owner of the fee of the property. The owner of property was enjoined from en- closing a portion of a public park on which his land abutted where his action destroyed the use of the park by his neighbor. Wheeler v. Bedford, 54 Conn. 244, 7 Atl. Rep. 22. The removal of a stairway from a passageway was also brought about by an injunction. Stallard v. Gushing, 76 Gal. 472, 18 Pac. Rep. 427. So also where the owner of premises had the right to use certain land as an alley, giving access to another owner taking title from the same source was enjoined from ob- structing the alley by building a wooden frame across it and put- ting up hooks to hang meat on. Swift v. Coker, S3 Ga. 789, 10 S. E. Rep. 442, 20 Am. St. Rep. 347. For another case in which an alley was obstructed and the obstruc- tion removed by equity, see Schaidt v. Blaul, 66 Md. 141, 6 Atl. Rep. 669. The action of the defendant in obstructing a water course so that the water backed up and rendered an alley impass- able, was ground for the injunc- 442 LAW OP LANDLORD AND TENANT, § 291. Construction of the word appurtenances. The gen- eral rule. The word "appurtenances" which in former times at least was so geneally employed in deeds and leases is derived from the word appaHe^iir which is Norman French and means to belong to. Speaking broadly, the word means anything cor- poreal or incorporeal which is an incident of, and belongs to some other thing as prineipal.^'^ At a time when the construc- tion of written conveyances was of a more technical character tion. Bailey v. Schnitzius, 53 N. J. Eq. 235, 22 Atl. Rep. 732. The right to use a private carriageway will be protected, by an injunc- tion. Herman v. Roberts, 119 N. Y. 37, 23 N. E. Rep. 442, 16 Am. St. Rep. 800. Ordinarily, an in- junction will not be granted to tenants to prevent an adjoining owner building his house so near the dividing line as to obstruct the passage of light and air. But a grantor who has reserved the right to light and air from prem- ises sold by him may enjoin his grantee from building thereon if he can show that it would result in a substantial loss to him. Hag- erty v. Lee, 45 N. J. Eq. 1, 15 Atl. Rep. 399. *7 Bouvier, Law Dictionary; Bloom V. West, 3 Colo. App. 212, 32 Pac. Rep. 846; Scheldt v. Belz, 4 111. App. 431; Badger Lumber Co. V. Marion Water Sup. Co., 48 Kan. 182, 184, 29 Pac. Rep. 476, 30 Am. St. Rep. 301, 15 L. R A. 652; Riddle v. Littlefield, 53 N. H. 503, 508, 10 Am. Rep. 388; Doyle v. Lord, 64 N. Y. 432, 437, 21 Am. Dec. 629; Gullman v. Sharp, 81 Hun, 4C2, 465, 30 N. Y. Supp. 1036; Meek v. Breckinridge, 29 Ohio St. 642, 648; Miller v. Fitzgerald Dry Goods Co., 62 Neb. 270, 86 N. W. Rep. 1078; Peters v. Grubb, 21 Pa. St. 455; Stevens v. Taylor, 97 N. Y. Supp. 925; Kooystra v. Luca.s, 1 D. & R. 506, 5 B. & Aid. 830, 24 R. R. 575; Harding v. Wilson, 3 D. & R. 287, 2 B. & C. 96, 1 L. J. (O. S.) K. B. 238, 26 R. R. 287; Morris v. Edington, 3 Taunt. 24, 12 R. R. 579; Crisp v. Price, 5 Taunt. 548; Jarvis v. Seele Mill- ing Co., 173 111. 192; Parish v. Vance, 110 111. App. 50, 57; Snook & Austin Fur. Co. v. Steiner, 113 Ga. 363, 43 S. E. Rep. 775, 777; Patterson v. Graham, 140 111. 531, 30 N. E. Rep. 460; The Ottumwa AVoolen Mill Co. v. Hawley, 44 Iowa, 57, 60, 24 Am. Rep. 719; Seidel v. Bloesser, 77 Mo. App. 172; Rutherford v. Wabash R. Co., 147 Mo. 441, 48 S. W. Rep. 924; Riddle v. Littlefield, 53 N. H. 503, 16 Am. Rep. 388; Ogden v. Jen- nings, 66 Barb. (N. Y.) 301, 307; City of Lincoln v. Lincoln St. R. Co. (Neb.), 93 N. W. Rep. 766, 772; Newport Illuminating Co. v. As- sessors, etc., 19 R. I. 632, 638, 36 Atl. Rep. 426, 36 L. R. A. 266; Johnson v. Nasworthy (Tex.), 16 S. W. Rep. 758, 759, 4 Willson, Civ. Cases, § 107; Farmers' Loan & Trust Co. V. Commercial Bank, 11 Wis. 207, 210; Investment Co. of Philadelphia v. Ohio & N. W. Ry. Co., 41 Fed. Rep. 3S7, 380; Scheel V. Alhambra Mining Co., 79 Fed. Rep. 821, 823; Harris v. Elliott, 10 Pet. (U. S.) 25, 54, 9 Law. ed. 333; Humphreys v. McKissock, 140 IT. S. 304, n Sup. Ct. 779, 781. PROPERTY WHICH IS INCLUDED IN THE LEASE. 4-13 than it is at present the word was considered of much greater importance than it is now and it was considered that in its ab- sence from a lease or other conveyance a very restricted meaning should attach to the words of description of the premises con- vej'cd. But at the present time very little importance is attached to its use in view of the fact that leases are so often drawn up or prepared by persons who are not skilled in, or accustomed to the use of technical language. Hence with a few exceptions those things which are incident to the principal thing will pass though the word appurtenances is not used. The word unques- tionably has a technical meaning but this meaning is not inflex- ible and the word will be construed in connection with the prin- cipal thing conveyed.^^ and keeping in mind also the general in- tent apparent in the instrument in Avhich it was emploj^ed as evi- denced by the context and by all the circumstances.^^ The word as it is used in a lease may have a very different meaning to what it would have if employed in a will or in a deed conveying a fee simple. For the use to which the principal thing conveyed is to be put by the grantee, devisee or lessee usually is very ma- terial in determining the meaning of the word. The presump- tion that a lessor intended that something not enumerated should pass as an appurtenant to the principal thing conveyed is -very strong when the lessee will be deprived of the complete and full enjoyment of the thing demised unless the thing which is incident to it is regarded as an appurtenant and impliedly conveyed by the same instrument. In short if the thing which is claimed to be an appurtenant belongs to the principal thing and at the same time is reasonably essential to the enjoyment of the principal thing it will pass as appurtenant to it,^° even though the word appurtenance be not used." The fact that a certain thing 28 Missouri Pac. Ry. Co. v. Mof- the accessary or adjunct, which is fitt, 94 Mo. &6, 60 S. W. Rep. 600. to be ascertained by considering 29 The word has a technical sig- whether they so agree in nature nification, and when strictly con- or quality as to be capable of sidered, is employed in leases for union without incongruity." Rid- the purpose of including any ease- die v. Littlefield, 53 N. H. 503, 50S, ments or servitudes used or en- 10 Am. Rep. 388. joyed with the demised premises. so Riddle v. Littlefield, 53 N. H. "When thus used to constitute an 503, 508. 16 Am. Rep. 388. appurtenance there must exist a 3i Jarvis v. Seele Milling Co., propriety of relation between the 173 111. 192, 195. principal or dominant subject and 444 LAW OP LANDLORD AND TENANT. which is claimed to be appurtenant to the principal thing is used with it is in most cases veiy material ;nd may be con- clusive upon the question whether the thing is appurtenant. But the use in connection with the principal thing is not always con- clusive for the thing to be an appurtenant must not only be used with the principal thing but must also be a part and parcel of it. Thus the mere fact that a stable has been used in connection with the occupation of the demised premises does not make the stable an appurtenant of the premises where the stable is not physically connected with the premises and has no open communication wdth it differing in character from other buildings.^- The necessity that the tenant shall use the thing which is claimed to be an appurtenance is a very strong circumstance. So, where certain parts of a building were leased with the "appurtenances," a furnace which constituted the only available means for heating the premises was included in the word, though there were grates on the floors and the grates were out of repair.''^ And as a gen- eral rule it may safely be said that what in any case shall pass as appurtenant to the leased premises, depends not upon the tech- nical construction of the rule but upon the particular circum- stances of each case, the most material and important of which are the character and use of the premises which have been leased and whether or not the thing or right which is claimed to be an appurtenance to the premises is calculated to advance the use of the premises in the hands of the tenant. In any case, the safest rule is that everything will pass which is necessary for the complete use of the premises, but things which render the use of the premises more convenient or agreeable are not neces- sarily appurtenances, for the premises can be used for the pur- poses of the tenant without them. We must always bear in mind that the w^ord "appurtenances" is not applied to the thing which is the principal object of the lease but rather to those things which are incidental and inferior to the principal thing. So, where a railroad company leased a part of its right of way 32 Maitland v. McKinnon, 1 H. v/as immaterial as the tenant had & C. 607. that right by implication. Having "^ Stevens v. Taylor, 97 N. Y. this right by implication the ten- Supp. 925. The court also hold ant has the right to use the heat- that the fact that the lease was ing apparatus he finds in the silent as to heating the premises house. PROPERTY WHICH IS INCLUDED IN THE LEASE. 445 described by metes and bounds on whicli there were certain structures connected with the tenant's coal mine and it was provided that the lessor should be exempted from liability for damages by fire to any structures that may be erected on the land leased or their appurtenances or contents, the word "ap- purtenances" did not include the, coal mine, pit heads or other parts of the mining property outside of the land mentioned in the lease but that the tenant's property inside the mining prop- erty was appurtenant to his mine outside the limits.^* It is a disputed question whether the conveyance of land "with the appurtenances" will create an easement in the land where none existed before. On the one hand, it has been said that the conveyance of land specifically described "with all appur- tenances thereof," will not create a right of way over the other land of the grantor unless the creation of such a right of way is absolutely necessary to give the grantee access to his land.*' The mere fact that such a right of way makes access to the land more convenient is not controlling. On the other hand it has been expressly held that the word "appurtenance," par- ticularly where it is used in connection with other words of similar meaning may be sufficient not only to convey the existing easement but also create one.^° 34 Rutherford v. Wabash R. R. pass by the use of the word "ap- Co., 147 Mo. 441, 48 S. W. Rep. 924. purtenances" depends largely upon 35 Oliver v. Hook, 47 Md. 301, the construction of the leasa The 309; Gayetty v. Bethune, 14 Mass. following cases which are cited to 49, 7 Am. Dec. 188; Grant v. illustrate the use of the word in- Chase, 17 Mass. 443, 9 Am. Dec. volved the construction of deeds, 161; Miller v. Bristol, 29 Mass. but it is believed that they are 550; Bonelli v. Blakemore. 66 valuable as showing the meaning Miss. 136, 5 So. Rep. 228; Barker which the courts would place upon V. Clarke, 4 N. H. 380. 17 Am. Dec. the word "appurtenances" in the 428; Stuyvesant V. Woodruff, 21 N. case of a lease. In these cases a J. Law, 133, 47 Am. Dec. 146; Par- right of way was held to pass by sons V. Johnson, 68 N. Y. 62, 23 the use of the words "with the Am. Rep. 149; Kenyon v. Nichols, appurtenances." Peck v. Loyd, 38 1 R. I. 411. Conn. 566; Chicago, S. F. & C. R. 36 Knowles v. Nichols, 14 Fed. Co. v. Ward, 128 111. 349, 18 N. E. Cas. No. 7,897; Molitor V. Sheldon, Rep. 828; Mendel v. Delano, 48 37 Kan. 246, 15 Pac. Rep. 231. Mass. 176; Foote v. Manhattan Ry. Whether the easement, such as a Co., 58 Hun (N. Y.) 478, 12 N. Y. right of way or a right of access Supp. 516; Kenyon v. Nichols. 1 or any other similar privilege, will R. I. 411. On the other hand, it 446 LAW OP LANDLORD AND TENANT. § 292. Things which have been held not to pass as a.ppnrte- nances. The term "appurtenances" as it is used in conveyances usually is intended to include nothing but the land and such easements as belong thereto and which are a part of the land.^'^ The word as used in a deed or lease does not usually convey cor- poreal things but only incorporeal things such as privileges and easements.^^' For example, the word will not pass an arti- cle of personal property which is in no wise connected with the premises demised and which is not indispensable to its full use and enjoyment by the lessee, though the thing may have been used in connection with the premises.^^ And it is very well set- tled that by the use of the word appurtenance, one piece of land will not pass as an appurtenance to another piece of land.*" has been held that a right of way does not pass under the term of "appurtenance" if it is not a parcel of the premises and necessary for their use and enjoyment May v. Smith, 3 Mackey, 55; Grant v. Chase, 17 Mass. 443, 9 Am. Dec. 161;*Lankin v. Terwillinger, 22 Oreg. 97, 29 Pac. Rep. 268. Gener- ally an easement will not pass un- der the use of this word unless it was actually annexed to the princi- pal thing. Spaulding v. Abbott, .55 N. H. 423; Parsons v. Johnson, 68 N. Y. 62, 63 Am. Rep. 149; Longen- dyke v. Anderson, 101 N. Y. 625, 4 N. E. Rep. 629; Swansey v. Brooks, 34 Vt. 451. In Oliver v. Hook, 47 Md. 301, on page 309, the court said: "If there was a way belonging to the estate as a pre- existing easement, such way would pass by force of these terms, or even without the use of them; but such terms used in a conveyance of part of a tract of land, as in this case, will not cre- ate a new easement, nor give a right to use A way which had been used with one part of the land over another part while both parts belonged to the same owner, and constituted an entire estate. A party cannot have an easement in his own land as all the uses of an easement are fully comprehended and embraced in his general right of ownership." S7 Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57; Meek v. Breckinridge, 29 Ohio St. 642, 648. 38 Co. Litt. 121; Scheldt v. Belz, 4 111. A pp. 431; Buszard v. Capel, 6 Bing. 151, 161, 8 B. & C. 141- 150. 30 Scheldt V. Belz, 4 111. App. 431; Barrltt v. Bell, 82 Md. 110, 52 Am. Rep. 361. 40 The following cases sustain the proposition that land will not pass as an appurtenant. Ogden v. Jennings, 62 N. Y. 526, 531; Holmes v. Seeley, 19 Wend. (N. Y.) 507; Oakley v. Stanley, 5 Wend. (N. Y.) 523; Voorhees v. Burchard, 55 N. Y. 98; Wilson v. Hunter, 14 Wis. 683. Some Eng- lish cases are Nicholas v. Cham- berlain, Cro. Jac. 131; Pierce v. Sellick, 18 C. B. 321; Tyrring- ham's Case, 4 Coke, 37a; Hill's Case, Plowden, 168a; Smith v. Martin, 3 Saund. 400. In Tyrring- ham's Case, 4 Coke, 37a, it Avas PROPERTY WHICH IS INCLUDED IN THE LEASE. 447 Hence, it follows that where there is a conveyance or a written lease of land in which the premises are described by well defined boundaries, so that it is clearly to be understood how much land the grantor or lessor intended to convey, the addition of the word appurtenances will not pass land not included in the boundaries. Thus, the lease of a building described by a par- ticular name does not pass as an appurtenance, any interest in the land adjoining the land on which the building is located or any interest in an outbuilding on such land, though the out- building might have been used with the demised premises.*^ So, where in a lease, land is demised as the "Bell house with all the appurtenances thereunto belonging," for the purpose of a hotel, it was held that a kettle situated upon an adjoining lot which was not indispensable to the enjoyment of the hotel prop- erty, although it was very convenient for the use of the tenant, did not pass as an appurtenant to the hotel, and the situation was not altered by the fact that the lessor of the hotel had used the kettle in connection with his hotel business.*^ And generally the word "appurtenances" will not carry to the lessee the use of any building or structure which is not on the premises de- mised though this building belonged to the landlord and was used by him in his business in connection with the premises.*'' The demise of a house with the appurtenances will pass the house, with the orchards, yards and curtilage and garden but said "prescription doth not make Doyle v. Lord, 64 N. Y. 432, 437, a thing appendant unless the 21 Am. Rep. 629. thing which shall be appendant *- Barrett v. Bell, 82 Mo. 110, agrees in quality and nature to 114. the thing to which it shall be ap- 43 Frey v. Drahos, 6 Neb. 1, 29 pendant as a thing corporate can- Am. Rep. 353; Grant v. Chase, 17 not be appendant to a thing cor- ]\Iass. 443; Spaulding v. Abbott, 55 porate." N. H. 423; Barber v. Clark, 4 N. 41 Oliver v. Dickinson, 100 Mass. H. 380; Coolidge v. Hagar, 43 Vt. 114, 117 (a lease). See, also, New 9; Swazey v. Brooks, 34 Vt. 451; York Cen. R. R. Co. v. B., N. Y. Seavey t. Jones, 43 N. H. 441; & E. R. R. Co., 49 Barb. (N. Y.) Jackson v. Strieker, 1 Johns. Cases 501, 505 (a lease of a railroad); (N. Y.) 284; Jackson v. Hatha- Harris v. Elliott. 10 Pet. (U. S.) way, 15 Johns. (N. Y.) 447; Bet- 25, 55, 56; Leonard v. White, 7 tisworth's Case, 2 Coke. 516; Bus- Mass. 6, 8, 9; Jackson v. Hatha- zard v. Capel, 8 B. & C. 141. G Blng. v/ay, 15 John. (N. Y.) 447, 454; 150; Ogden v. Jennings, 62 N. Y. 52G. 448 LAW OF LANDLORD AND TENANT, not the land especially if it be at a distance though occupied with the house ; so, a demise of a house with appurtenances will not pass an adjoining building which is not accounted parcel of the house, although held with it for many years.** A lease of a house with all the rooms and chambers, with all the appurte- najices belonging, or in any way appertaining thereto does not pass the use of a room formerly occupied with the rest of the house with which the room had communicated by means of a door which had, however, been closed by a wooden partition for many years before the execution of the demise.*^ It should be said, however, that the rule above stated to the effect that land will not pass as an appurtenance of land, has some exceptions. These exceptions occur principally in cases of the lease or convey- ance of land fronting on streams or other bodies of water. Where riparian land is conveyed or is demised without or with the use of the word "appurtenances" in connection therewith, it is usually considered that the land under water, adjoining the land de- mised, passes with the demised land as being absolutely indis- pensable to the full use and enjoyment of the land located on the margin of the stream. Thus, flats necessary to the use of a wharf will pass as appurtenances in a conveyance or lease of a wharf.*® So, a.lso, under a lease of a wharf, the land upon which the wharf is built, and the tide and shore land adjoining to the wharf will pass as an appurtenance though not men- tioned.*^ And an addition formed by the extension of a pier line the result of an accretion by alluvion, will pass as an appurte- nance to a pier.*^ And generally by a demise of a mill or mill privilege, not only the mill itself, but also the land on which it stands and all the land adjoining and surrounding it both above and below water including a sufficient portion of the bed of the stream to erect a dam upon will pass as an appurtenance.*^ An exception to the rule occurs where the question arises as to the right of the lessee to have the premises which he has leased sup- ported by the land upon which it is built and by land which ad- ** Bryan v. Weatherhead, Cro. *^ Brown v. Carkeek, 14 Wash. Jac. 17. 443, 44 Pac. Rep. 889. 45 Kerslake v. White, 2 Stark. *» Williams t. Baker, 41 Md. 508. 523, 528. 40 Doane v. The Broad Street