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 I
 
 A TREATISE 
 
 ON THE LAW OF 
 
 LANDLORD and TENANT 
 
 IN CONTINUATION OF 
 
 THE AUTHOR'S TREATISE 
 
 ON THE 
 
 LAW OF REAL PROPERTY 
 
 BY 
 
 LEONARD A. JONES, A. B., LL B. [Harv.] 
 
 JUDGE OF THE LAND COURT OF MASSACHUSETTS 
 
 INDIANAPOLIS 
 
 THE BOBBS-MERRILL COMPANY 
 
 PUBLISHERS 
 
 1906
 
 T 
 
 Copyright 1906 
 BY LEONAJ^D A. JONES 
 
 THE HOLLENBECK PRESS 
 INDIANAPOLIS
 
 PKEFAOE. 
 
 Many years ago I began upon the execution of a plan to write 
 upon the principal topics of Keal Property law. In my treatise upon 
 the general law of Real Property I considered the practical parts of 
 the subject as applied between Vendor and Purchaser in modern coii- 
 veyancing, or estates in fee and their transfer by deed. I stated in 
 the preface of that work that if I should thereafter write upon other 
 parts of the law of Real Property, such writings would be published 
 under separate and specific titles. Accordingly, when I subsequently 
 took up the consideration of those incorporeal hereditaments, the uses 
 or profits in the land of another, I published a separate volume under 
 the title of Easements. I had already treated the subject of Mort- 
 gages of Eeal Property and the subject of Liens. The subject of 
 Landlord and Tenant still remained for consideration. In writing 
 upon these and other subjects down to the present work, I had never 
 availed myself of any assistance from others except clerical work. 
 But having seven years ago accepted a judicial position I could not 
 go on with the present work without assistance from some scholarly 
 lawyer who could spend his days in the Law Library searching the 
 Reports. I was fortunate to obtain the assistance of Frank N". Morrill, 
 Esq., of the Boston bar, a graduate of Harvard College in 1897, and of 
 the Harvard Law School in 1900. He had already had considerable ex- 
 perience in law writing, and whatever merits the present work may 
 have are largely due to his careful and thorough investigations. 
 
 The plan of the present work is to state the law concisely, and to 
 refer to all the American eases worth citing and the leading English 
 cases. It is believed that the law is sufficiently discussed for all ordi- 
 nary purposes, and that the reports which, are essential to a full in- 
 vestigation of the law are all referred to. 
 
 January 1, 1906. L. A. J. 
 
 ill 

 
 TABLE OF CONTENTS. 
 
 CHAPTEE I. 
 
 CREATION OF THE RELATION. 
 
 I. Essentials of a Tenancy. 
 
 SEC. 
 1. 
 
 A tenancy is created by con- 
 tract express or implied 
 whereby one person permits 
 another to occupy lands actu- 
 ally or constructively. 
 
 2. Occupation must not be ad- 
 
 verse. 
 
 3. The relation of landlord and 
 
 tenant cannot be inferred as 
 a matter of law from the 
 mere fact of lawful occu- 
 pancy. 
 
 4. An award of arbitrators cannot 
 
 create the relation of land- 
 lord and tenant. 
 
 5. It is not necessary to the crea- 
 
 tion of a tenancy that there 
 should be a formal hiring, 
 letting, or leasing. 
 
 6. Reservation of rent by the 
 
 landlord is not essential to 
 the creation of a tenancy. 
 
 7. The validity of a landlord's ti- 
 
 tle is not material. 
 
 8. 
 
 The fiduciary relation of a 
 
 18. 
 
 
 lessee. 
 
 19. 
 
 
 II. Subject Matter. 
 
 20, 
 
 9. 
 
 The general rule. 
 
 
 10. 
 
 Where chattels are let for a 
 term. 
 
 
 ///. Proof of Tenancy. 
 
 SEC. 
 
 11. The existence of a tenancy or 
 
 of the relation of landlord 
 and tenant with reference to 
 a particular piece of ground 
 is a fact. 
 
 12. The payment of rent is a fact 
 
 going to the establishment of 
 a tenancy. 
 
 13. Entry and occupation. 
 
 14. Province of judge and jury. 
 
 IV. Interesse Termini. 
 
 15. Under the old common law a 
 
 bare lease did not give any 
 estate in the land. 
 
 16. Even though there Is an out- 
 
 standing interesse termini, 
 the owners of the reversion 
 could maintain an action of 
 trespass against a disseisor. 
 
 17. If a lease is so worded as to be 
 
 a bargain and sale. 
 
 V. Similar Contractual Relations. 
 
 In general. 
 
 Statutory remedy dependent on 
 technical relation of landlord 
 and tenant. 
 
 A servant or employe occupy- 
 ing a house of his master 
 does not ordinarily become 
 his tenant.
 
 VI 
 
 TABLE OF CONTENTS. 
 
 21. There is no inconsistency in 
 
 the relation of master and 
 servant with that of landlord 
 and tenant. 
 
 22. An independent contractor who 
 
 contracts to do certain acts 
 on land belonging to another. 
 
 23. Tenant or lodger. 
 
 £4. An oral contract by the keeper 
 of a boarding house. 
 
 25. Mortgagor in possession. 
 
 26. Contracts for mortgage or for 
 
 letting. 
 
 27. A mortgagee in possession is 
 
 not a tenant of his mort- 
 gagor, and the latter cannot 
 recover rent after redeeming. 
 
 28. Tenancy between joint owners. 
 
 YI. Purchaser in Possession. 
 
 29. The occupation of land under 
 
 a contract for purchase. 
 
 30. In the absence of agreement a 
 
 purchaser's right to possess 
 is not greater than that of a 
 tenant at will. 
 
 31. Modifying circumstances. 
 
 32. That a vendee in possession is 
 
 entitled to emblements. 
 
 33. Where a vendor of land con- 
 
 tinues in possession. 
 
 34. The character of an occupan- 
 
 cy may be determined by a 
 condition subsequent. 
 
 35. Proof of change in relation- 
 
 ship. 
 
 VII. Lease or License. 
 
 36. A license in the sense it is 
 
 used here is an authority to 
 do an act or a series of acts 
 on the land of another. 
 
 37. A mere license, while it re- 
 
 mains executory, is revoca- 
 ble at the pleasure of the 
 licensor, is indivisible and 
 non-assignable. 
 
 38. A parol license to cut and 
 
 carry away standing timber. 
 
 SEC. 
 
 39. A conveyance for a limited pe- 
 
 riod of an interest in land 
 subordinate to the grantor's 
 ownership in fee is a lease. 
 
 40. A permissive occupation, un- 
 
 der a contract, express or 
 implied, conferring a legal 
 possession, is indispensable 
 to the creation of a tenancy. 
 
 41. Grant of mining rights. 
 
 42. Payment of consideration as a 
 
 test. 
 
 43. Restricted and intermittent 
 
 use. 
 
 44. A theater ticket is only a li- 
 
 cense. 
 
 45. In cases where dams are built 
 
 and lands flowed. 
 
 VIII. Cropping Contracts. 
 
 46. The term "cropping contract" 
 
 is used here to indicate any 
 agreement between a land- 
 owner and a laborer in re- 
 gard to the cultivation of 
 land which does not rise to 
 the dignity of a lease. 
 
 47. Whether an agreement for the 
 
 occupation of farming lands 
 is a lease or a cropping con- 
 tract depends on the inten- 
 tion of the parties. 
 
 48. There has been a tendency in 
 
 certain cases to impute a 
 fixed intention to the land- 
 owner not to create a ten- 
 ancy. 
 
 49. If one be hired to work land, 
 
 receiving for his compensa- 
 tion part of the produce, he 
 is a cropper and not a ten- 
 ant. 
 
 50. The character of the cropper's 
 
 occupation is an important 
 factor in determining the 
 nature of the contract. 
 
 51. Where the person producing 
 
 the crop is in exclusive pos- 
 session and control of the 
 land.
 
 TABLE OF CONTENTS. 
 
 vn 
 
 SEC. 
 
 52. The relation of landlord and 
 
 tenant may exist although 
 rent is to be paid in a part 
 of the crop. 
 
 53. Tenancy carries with it the 
 
 idea of legal ownership by 
 the tenant of the products 
 of the soil. 
 
 SEC. 
 
 54. Co-tenancy in both land and 
 
 crops. 
 
 55. The doctrine that an agree- 
 
 ment for a crop rent takes 
 effect as a reservation. 
 
 56. In some jurisdictions the mat- 
 
 ter of letting on shares has 
 been regulated by statute. 
 
 CHAPTER II. 
 
 THE INSTRUMENT OF DEMISE. 
 
 7. Formal Parts. 
 
 SEC. 
 
 57. The instrument in writing cre- 
 
 ating the relation of land- 
 lord and tenant is termed a 
 lease. 
 
 58. Lease distinguished from other 
 
 instruments. 
 
 59. Technical requirements of 
 
 form. 
 
 60. Date of lease. 
 
 61. Lease executed on Sunday. 
 
 62. Alteration of lease. 
 
 €3. Reservations and exceptions. 
 
 64. Stipulation for attorney's fee. 
 
 65. Consideration. 
 
 66. The true construction of writ- 
 
 ten leases is to be declared 
 by the court and not submit- 
 ted to the finding of the jury. 
 €7. The lease must be construed as 
 a whole. 
 
 68. Custom of the country. 
 
 69. Inconsistent and contradictory 
 
 clauses. 
 69a. By the term "relet," when 
 used in an alternative pro- 
 vision for the purchase of 
 improvements, the parties 
 mean a new letting for a 
 fixed and definite term. 
 
 70. Reformation of lease. 
 
 II. Execution and Delivery. 
 
 SEC. 
 
 71. All that is necessary to the ex- 
 
 ecution of a lease is that it 
 should be signed and deliv- 
 ered. 
 
 72. On the other hand, a different 
 
 rule prevails in some states. 
 
 73. Rights of third parties. 
 
 74. Seal unnecessary. 
 
 75. A lease must be signed by the 
 
 lessor. 
 
 76. Errors in signature. 
 
 77. Lessee need not sign. 
 
 78. Where the parties contem- 
 
 plated the signing of an in- 
 denture of lease by both 
 parties. 
 
 79. Acceptance of lease. 
 
 80. Form of action. 
 
 81. An undisclosed principal. 
 
 82. Leases by corporations. 
 
 83. Delivery is a question of in- 
 
 tent and it depends on 
 whether the parties meant it 
 to be a delivery to take effect 
 immediately. 
 
 III. Parties to Leases. 
 
 84. In general.
 
 Vlll 
 
 TABLE OF CONTENTS. 
 
 SEC 
 85 
 
 86 
 
 87 
 
 89 
 90, 
 
 91. 
 
 92. 
 93. 
 94. 
 95. 
 96. 
 
 97. 
 
 . The general doctrine of the 
 law is that a person dispos- 
 sessed cannot make a valid 
 conveyance. 
 
 . One tenant in common cannot 
 as such make a lease of 
 community land. 
 Leases by and to married 
 women. 
 
 Right of husband to lease 
 wife's real estate. 
 
 Guardians. 
 
 Except in regard to the dura- 
 tion of the terms, there 
 seems to be no restriction as 
 to the mode in which the 
 guardian must proceed. 
 
 Trustees have a general power 
 of leasing. 
 
 Infancy of lessee. 
 
 Executors and administrators. 
 
 Mortgagor and mortgagee. 
 
 Infancy of lessor. 
 
 Although a room may properly 
 be regarded as a necessary. 
 
 Assignment by infant. 
 
 106. 
 
 107. 
 108. 
 109. 
 110. 
 
 IV. Description of Premises. 
 
 98. Where a lessee has not entered 
 
 into occupation, the lease 
 must with reasonable cer- 
 tainty describe the land de- 
 mised. 
 
 99. The practical location 
 
 boundaries of the 
 premises. 
 
 100. A defective or totally inade- 
 
 quate description. 
 
 101. The question whether a par- 
 
 ticular place is a part of the 
 demised premises. 
 
 102. A lease of a building eo nomine 
 
 is a lease of the land on 
 which the building stands. 
 
 103. A description of a house by 
 
 the street number. 
 
 104. Any right of way or other 
 
 easement. 
 
 of the 
 leased 
 
 SEC. 
 
 105. The lease of property abutting 
 on a public street carries 
 with it all the easements, in- 
 cidents and rights of the 
 owner. 
 
 A tenant could prevent an in- 
 terruption of his right to an 
 easement for light and air. 
 
 What constitutes the curtilage. 
 
 Use of outside walls for signs. 
 
 Riparian boundaries. 
 
 The reservation to lessor of a 
 right to select a portion of 
 the leased premises and re- 
 tain them for his own use 
 has an effect of the condi- 
 tion subsequent. 
 
 V. Duration of Term. 
 
 111. Leases may at law be for 
 
 years, for life or of perpet- 
 ual duration. 
 
 112. The term_ for which a lease for 
 
 years is to run should be 
 certain. 
 
 Leases running from an indefi- 
 nite future time. 
 
 A contingent limitation of a 
 term is valid and enforceable. 
 
 Happening of contingency. 
 
 Lease for life. 
 
 Errors in calculation. 
 
 A lease is a single instrument. 
 
 In determining when a term 
 begins, the word "from" may 
 be either exclusive or inclu- 
 sive. 
 
 113. 
 
 114. 
 
 115. 
 116. 
 117. 
 118. 
 119. 
 
 120. 
 
 121. 
 122. 
 
 123. 
 
 124. 
 
 VI. Illegal Leases. 
 
 A colorable lease for an illegal 
 purpose cannot be enforced. 
 
 Kind of illegality. 
 
 Use of premises for the use of 
 prostitution. 
 
 Premises to be used for gam- 
 bling. 
 
 Setting up defense of Illegal- 
 ity.
 
 TABLE OF CONTENTS. 
 
 IX 
 
 yil. Leases Obtained hy Fraud. 
 
 SEC. 
 
 125. The rule that fraud in the 
 
 making of a written agree- 
 ment may be shown by parol 
 evidence. 
 
 126. Rescission of lease and defense 
 
 of action for rent. 
 
 127. In Missouri. 
 
 128. Election of remedies. 
 
 129. What constitutes fraud. 
 
 YIII. Collateral Parol Agreement. 
 
 130. Contracts, if a statute does 
 
 not intervene, may be ex- 
 pressed partly by parol. 
 
 131. Compliance with statute of 
 
 frauds. 
 
 132. Not only must the agreement 
 
 stand the test of the statute 
 of frauds, but it must be col- 
 lateral to the lease. 
 
 133. On the question what agree- 
 
 ments are collateral there is 
 a wide divergence of judicial 
 opinion. 
 
 134. In England. 
 
 135. A subsequent agreement reduc- 
 
 ing rent. 
 
 136. In accordance with the general 
 
 law regarding consideration 
 for a contract. 
 
 137. The execution of a new lease 
 
 to the same tenant. 
 
 IX. Agreements to Lease. 
 
 137a. What constitutes a valid agree- 
 ment. 
 
 138. Specific performance of agree- 
 
 ment. 
 
 139. Breach of agreement. 
 
 140. Measure of damages. 
 
 141. Lease or agreement to lease. 
 
 142. The test of intention in regard 
 
 to making a lease or an 
 agreement to lease is wheth- 
 er the agreement leaves any- 
 thing incomplete. 
 
 143. Where there is no covenant for 
 
 executing any further instru- 
 ment an agreement will 
 take effect as a present lease, 
 even though the term is not 
 to begin until a future time. 
 
 144. The words "agree to let" have 
 
 for a long time been held to 
 be apt words of present de- 
 mise. 
 
 145. Agreements subject to a con- 
 
 dition. 
 
 146. Effect of possession. 
 
 X. Statute of Frauds. 
 
 147. The English act. 
 
 148. Form of statutes for the pre- 
 
 vention of frauds and per- 
 juries in the United States. 
 
 149. The requirement of the origi- 
 
 nal English statute as to the 
 value of the rent reserved. 
 
 150. In New Mexico. 
 
 151. Assignments. 
 
 152. Leases for one year from fu- 
 
 ture date. 
 
 153. Extent of validity. 
 
 154. Duration of term. 
 
 155. Whether void only as to ex- 
 
 cess. 
 
 156. Sufficiency of memorandum. 
 
 157. Authority of agent. 
 
 158. Leases by undisclosed princi- 
 
 pals. 
 
 159. Effect of part performance of 
 
 a parol lease. 
 
 160. In order to amount to part per- 
 
 formance, an act must be 
 unequivocally referable to 
 the agreement. 
 
 161. In Alabama. 
 
 162. There is a very obvious differ- 
 
 ence between a parol agree- 
 ment to make a written 
 lease and a parol lease. 
 
 XI. Recording. 
 
 163. Statutory provisions.
 
 X TABLE OF CONTENTS. 
 
 SEC. SEC. 
 
 164. Validity of unrecorded instru- 166. Record of sublease. 
 
 ments. 167. Computation of time. 
 
 165. Place of record. 
 
 CHAPTEK III. 
 
 KINDS OF TENANCY, 
 
 I. Estates for Years. 
 
 SEC. 
 
 168. The chattel interest known as 
 
 a term for years. 
 
 169. Term for years or from year 
 
 to year. 
 
 170. A lease, on account of uncer- 
 
 tainty of duration, might be 
 inoperative for any other 
 purpose than the creation of 
 an estate at will. 
 
 171. A lease for years is a chattel 
 
 real only. 
 
 172. Sale on execution as a chattel. 
 
 173. Curtesy and dower. 
 
 II. Tenancy at Will. 
 
 174. An estate at will, in the pri- 
 
 mary and technical sense of 
 that expression, is created 
 by grant and contract. 
 
 175. Where a tenant occupies the 
 
 premises without rent and 
 without any time agreed 
 upon to limit the occupation. 
 
 176. A parol gift of land creates 
 
 merely an estate at will in 
 the donee. 
 
 177. The necessity for consent by 
 
 the landowner. 
 
 178. A landowner's mere consent to 
 
 the occupation of his land 
 by another does not neces- 
 sarily imply consent to such 
 occupation as tenant. 
 
 179. The possession of a tenant at 
 
 will. 
 
 180. Entry and occupation under a 
 
 void parol lease creates a 
 tenancy. 
 
 SEC. 
 
 181. Unauthorized lease. 
 
 182. Determination of tenancies at 
 
 will. 
 
 183. Yet until a termination of the 
 
 will the possession of a ten- 
 ant at will is lawful. 
 
 184. Death of parties and destruc- 
 
 tion of subject matter. 
 
 185. Notice to tenant at will. 
 
 186. An estate at will is uncertain 
 
 and defeasible, and is de- 
 stroyed by the alienation of 
 the premises by either party. 
 
 187. Purpose and mode of transfer 
 
 immaterial. 
 
 188. Notice of the transfer of the 
 
 landlord's title. 
 
 189. Recovery of rent till time of 
 
 alienation. 
 
 190. The estate of a tenant at will 
 
 is not an interest capable of 
 bargain and sale. 
 
 191. Notice to the landlord is essen- 
 
 tial. 
 
 in. Tenancy from Year to Year. 
 
 192. Rests on judicial, not statutory 
 
 authority. 
 
 193. Applicable to conditions in this 
 
 country. 
 
 194. The expression tenant at will 
 
 from year to year exactly 
 expresses the old common- 
 law idea of periodical tenure. 
 
 195. Similarity to estates for term 
 
 of years. 
 
 196. Statutory modifications.
 
 TABLE QF CONTENTS. 
 
 XI 
 
 SEC, 
 
 197. An estate at will is converted 
 
 into an estate from year to 
 year by the payment of rent. 
 
 198. The receipt of rent by a land- 
 
 lord from which a tenancy 
 from year to year is inferred 
 may be explained on other 
 grounds. 
 
 199. Where a tenant enters and oc- 
 
 cupies under an invalid parol 
 lease, the agreement governs 
 the terms of the holding. 
 
 200. The form of action to recover 
 
 rent when occupation has 
 been under a void agreement 
 is one for use and occupa- 
 tion. 
 
 201. Yearly tenancy created by hold- 
 
 ing over. 
 
 202. The terms of a year to year 
 
 holding are the same as 
 those of the lease which pre- 
 ceded it. 
 
 203. Option as to yearly tenancy 
 
 rests with landlord. 
 
 204. The landlord's act of receiving 
 
 rent implies such assent on 
 his part to the holding over. 
 
 205. It is not necessary for the 
 
 landlord to Indicate his as- 
 sent to a holding over by 
 overt acts. 
 
 206. Dissent on part of tenant. 
 
 207. Rule in England. 
 
 208. Surrender rendered impossible 
 
 by act of God. 
 
 209. Necessary length of tenant's 
 
 holding over. 
 209a. If the landlord is in any way 
 responsible for the holding 
 over. 
 
 210. Rebutting presumption of year 
 
 to year tenancy. 
 
 211. A covenant to pay rent at the 
 
 same rate for such further 
 term as the lessees or per- 
 sons claiming under them 
 shall hold the premises. 
 
 SEC. 
 
 212. Where there is an express re- 
 
 newal of a lease. 
 
 213. Changes in the amount of rent. 
 
 214. Where a lease provided for a 
 
 penalty of double rent. 
 
 IV. Tenancy from Month to Month. 
 
 215. The reservation and payment 
 
 of rent at stated periods. 
 
 216. A tenancy from month to 
 
 month may be created by ex- 
 press agreement. 
 
 217. Effect of void lease to render 
 
 time for termination definite. 
 
 218. A lessee for a year who holds 
 
 over after his term expires 
 becomes a tenant from year 
 to year even though the rent 
 is payable in monthly instal- 
 ments. 
 
 219. A tenancy from month to 
 
 month is not a continuing 
 right of possession. 
 
 V. Tenancy by Sufferance. 
 
 220. General nature of holding. 
 
 221. Arises on holding over. 
 
 222. To constitute a tenancy by suf- 
 
 ferance there need not have 
 been any prior contract of 
 letting. 
 
 A mortgagor holding after a 
 sale of the mortgaged prop- 
 erty for breach of condition 
 is a tenant at sufferance. 
 
 Another case in which a ten- 
 ancy at sufferance arises 
 without any preceding con- 
 tract of tenancy. 
 
 Exception to rule. 
 
 Rights of tenant at sufferance. 
 227. The common law gave no right 
 of action in any case against 
 a tenant at sufferance to re- 
 cover for use and occupation. 
 
 Right of entry on tenant at 
 sufferance. 
 
 223. 
 
 224. 
 
 225 
 226 
 
 228.
 
 xu 
 
 TABLE OF CONTENTS. 
 
 SEC. 
 229. 
 
 230. 
 
 The term tenant at sufferance 
 is not always used in the 
 strict sense which it bore in 
 the old law. 
 
 Use of term in statutes. 
 
 YI. Statutory Provisions. 
 
 231. California. 
 
 232. Connecticut. 
 
 233. District of Columbia. 
 
 234. In Delaware. 
 
 235. Georgia. 
 
 236. In Indiana. 
 
 SEC. 
 
 237. In Iowa. 
 
 238. In Kentucky. 
 
 239. In Maine. 
 
 240. In Massachusetts. 
 
 241. In Michigan. 
 
 242. In Missouri. 
 
 243. Nevada. 
 
 244. In New Hampshire. 
 
 245. New York. 
 
 246. Oklahoma Territory. 
 
 247. In Rhode Island. 
 
 248. South Carolina. 
 
 249. In Washington. 
 
 250. Wyoming. 
 
 CHAPTEE IV. 
 
 NOTICE TO QUIT. 
 
 7. "Necessity for Notice. 
 
 SEC. 
 
 251. 
 
 Notice to quit is necessary to 
 terminate a year to year 
 holding. 
 
 252. In the United States the length 
 
 of notice depends almost en- 
 tirely on statute. 
 
 253. At common law a tenant from 
 
 month to month * must give 
 thirty days' notice of his in- 
 tention to leave. 
 
 254. A written notice to terminate 
 
 a tenancy strictly at will or 
 by sufferance was not re- 
 quired at common law. 
 
 255. When there is a valid lease for 
 
 a time certain, no notice to 
 quit is necessary. 
 
 256. Where a tenant holds premises 
 
 for the full term provided 
 for by a void agreement. 
 
 257. No notice to quit is necessary 
 
 when the parties do not 
 stand in the relation of land- 
 lord and tenant. 
 
 SEC. 
 
 258. Where a certain kind of notice 
 
 is by statute required to ter- 
 minate a tenancy a proper 
 notice is essential to end the 
 holding. 
 
 259. The rights and duties in re- 
 
 spect to the giving of notices 
 to quit between landlord and 
 tenant are mutual and recip- 
 rocal. 
 
 11. Sufficiency of Notice. 
 
 260. That the notice must point to 
 
 the time when the tenants 
 must quit. 
 
 261. The time for quitting must be 
 
 on the day of the year when 
 the tenancy commenced. 
 
 262. Defective notice. 
 
 263. A notice to quit should be ad- 
 
 dressed to the lessee or ten- 
 ant in possession of the de- 
 manded premises.
 
 TABLE OF CONTENTS. 
 
 XUl 
 
 SEC. 
 
 264. A formal insufficiency of a no- 
 
 tice to quit is waived by the 
 tenant's repudiation. 
 
 265. Authority of agent. 
 
 266. Who may give notice after as- 
 
 signment. 
 
 267. A notice to quit should be ab- 
 
 solute rather than in the al- 
 ternative. 
 
 268. Notice by parol to terminate a 
 
 tenancy from year to year 
 was of course sufficient at 
 common law. 
 
 269. Notices to and from joint own- 
 
 ers. 
 
 270. The requirements for notice to 
 
 quit may be waived by 
 agreement between the par- 
 ties. 
 
 271. Enforcement of notice. 
 
 III. Service of Notice. 
 
 272. Personal service of a notice to 
 
 quit upon a tenant is not nec- 
 essary. 
 
 273. In England a notice to quit 
 
 left with the servant or wife 
 of the tenant. 
 
 274. Service of a notice by mail. 
 
 275. Service by posting. 
 
 276. Proof of service. 
 
 IV. Statutory Provisions. 
 
 277. Alaska. 
 
 278. Arizona. 
 
 279. Arkansas. 
 
 SEC. 
 
 280. California. 
 
 281. Colorado. 
 
 282. Connecticut. 
 
 283. Delaware. 
 
 284. District of Columbia. 
 
 285. Georgia. 
 
 286. Idaho. 
 
 287. Illinois. 
 
 288. Indiana. 
 
 289. Iowa. 
 
 290. Kansas. 
 
 291. Kentucky. 
 
 292. Louisiana. 
 
 293. Maine. 
 
 294. Maryland. 
 
 295. Massachusetts. 
 
 296. Michigan. 
 
 297. Minnesota. 
 
 298. Mississippi. 
 
 299. Missouri. 
 
 300. Montana. 
 
 301. Nevada. 
 
 302. New Hampshire. 
 
 303. New Jersey. 
 
 304. New York. 
 
 305. North Carolina 
 
 306. North Dakota. 
 
 307. Ohio. 
 
 308. Oregon. 
 
 309. Oklahoma Territory. 
 
 310. Pennsylvania. 
 
 311. Rhode Island. 
 
 312. South Carolina. 
 
 313. South Dakota. 
 
 314. Virginia. 
 
 315. Washington. 
 
 316. West Virginia. 
 
 317. Wisconsin. 
 
 CHAPTEE V. 
 
 COVENANTS IN LEASES. 
 
 I. Construction and Effect. 
 
 SEC. 
 
 318. 
 
 A covenant is an agreement, 
 convention or promise of two 
 or more parties by deed in 
 writing. 
 
 SEC. 
 
 319. No particular form of words is 
 
 necessary to constitute a 
 covenant. 
 
 320. Joint covenantors.
 
 XIV 
 
 TABLE OF CONTENTS. 
 
 321. Covenants have been divided 
 
 into express and implied cov- 
 enants. 
 
 322. The general rule for interpre- 
 
 tation of covenants in a lease 
 is to expound them so as to 
 give effect to the actual in- 
 tent of the parties as collect- 
 ed from the entire context. 
 
 323. Covenants are either depend- 
 
 ent, concurrent and mutual, 
 or independent. 
 
 324. Covenants in an agreement 
 
 will be construed as condi- 
 tions precedent or as inde- 
 pendent agreements. 
 
 325. Violations of independent cov- 
 
 enants by a landlord will not 
 require an injunction. 
 
 326. The distinction between a cov- 
 
 enant and a condition exists 
 even when the agreement is 
 to surrender the property. 
 
 327. The apt words of limitation. 
 
 328. Running of covenants. 
 
 329. Rule in Spencer's case. 
 
 330. A covenant in regard to a per- 
 
 sonal matter undertaken by 
 one party to a lease and con- 
 tained in the instrument of 
 demise is not binding upon 
 the assigns of the cove- 
 nantor. 
 
 331. Covenants affecting the mode 
 
 of occupation and enjoyment 
 of leased premises run with 
 the land. 
 
 332. A covenant to buy improve- 
 
 ments at the end of the term 
 runs with the reversion. 
 
 333. A covenant of guaranty for 
 
 rent is collateral to the lease 
 it accompanies. 
 
 334. Running of covenants after 
 
 breach. 
 
 335. A covenant to insure which 
 
 had for its object the benefit 
 of the lessor only, as where 
 the money paid in the event 
 of the loss would go to him, 
 has been regarded as col- 
 lateral. 
 
 77. For Renewal of Lease. 
 
 336. A common form of lease fixes 
 
 a short term for which the 
 lessee is bound to retain the 
 premises and then gives him 
 a right to occupy them for 
 a further period if he so de- 
 sires. 
 
 337. A distinction between a stipu- 
 
 lation to renew a lease and 
 one to extend it for an addi- 
 tional period. 
 
 338. On the question whether a gen- 
 
 eral provision to renew a 
 lease calls for a new one. 
 
 339. Where lessee is entitled to the 
 
 renewal of his lease, he must 
 give notice promptly at or 
 before the expiration of the 
 first term or according to the 
 agreement. 
 
 340. When there is an option to les- 
 
 see to have the same term 
 extended no notice of an 
 election to have the term 
 continue is necessary unless 
 it is required by a clause in 
 the lease. 
 
 341. However, the lessor has a right 
 
 to call on the lessee to elect 
 before the end of the term. 
 
 342. A requirement for notice of 
 
 election must, in the absence 
 of waiver, be complied with. 
 
 343. Validity of covenants to renew.
 
 TABLE OF CONTENTS. 
 
 XV 
 
 SEC. 
 
 344. A renewal agreement cannot be 
 
 made to apply to subdivi- 
 sions of the premises, but 
 must be claimed in its en- 
 tirety. 
 
 345. Parties bound and parties en- 
 
 titled under renewal agree- 
 ments. 
 
 346. Where there is an arrangement 
 
 for arbitration to fix the 
 amount of rent in a renewal 
 lease. 
 
 347. A conditional covenant to re- 
 
 new upon the termination of 
 the lease is not a present de- 
 mise. 
 
 348. Happening of contingency. 
 
 III. For Quiet Enjoyment. 
 
 349. When implied. 
 
 350. The rule that where an instru- 
 
 ment contains an express 
 covenant in regard to any 
 subject, no covenants are to 
 be implied in respect to the 
 same subject. 
 
 351. Statutory provisions against 
 
 implied covenants. 
 
 352. The legal implication of the 
 
 covenant for quiet enjoy- 
 ment. 
 352a. On the lease of surplus water 
 in a canal. 
 
 353. It is sufficient in many cases 
 
 that a lease contains an im- 
 plied covenant which Is a 
 good warranty by the land- 
 lord against his own acts. 
 
 354. The rule as to the breach of a 
 
 covenant for quiet enjoyment 
 is that there can be no 
 breach without an eviction, 
 actual or constructive. 
 
 355. The question of eviction or no 
 
 eviction depends upon the 
 circumstances, and is in all 
 cases to be decided by the 
 jury. 
 
 356. An eviction may be actual, as 
 
 where there is a physical ex- 
 pulsion, or it may be con- 
 structive. 
 
 357. Physical expulsion. 
 
 358. Entry by landlord under claim 
 
 of privilege. 
 
 359. Interference with light and air. 
 
 360. Eviction by nuisance on ad- 
 
 joining premises. 
 
 361. Under a covenant for quiet en- 
 
 joyment, the lessor does not 
 covenant against the acts of 
 wrong-doers. 
 
 362. A taking of the demised prem- 
 
 ises by the sovereign under 
 the right of eminent domain 
 is not an eviction. 
 
 363. An outstanding title which is 
 
 paramount to that of his 
 landlord is no defense. 
 
 364. Eviction suspends rent. 
 
 365. If a tenant is evicted from a 
 
 material part of the prem- 
 ises, he has a legal right to 
 abandon the whole. 
 
 366. If the lessor give to his lessee 
 
 a complete and perfect right 
 of possession to the demised 
 premises, he has done all 
 that he is required to do by 
 the terms of an ordinary 
 lease. 
 
 367. In direct opposition to the law 
 
 as just stated, it is estab- 
 lished in England and in sev- 
 eral jurisdictions in the 
 United States that the lessor 
 is bound to put the lessee in 
 possession. 
 367a. Where the lessor is in posses- 
 sion of the leased premises 
 and refuses to vacate. 
 
 368. Tenants remedy by action. 
 
 369. Where the lessee has actually 
 
 been deprived of the posses- 
 sion or use of demised prem- 
 ises, damages resolve them- 
 selves into three elements.
 
 XVI 
 
 TABLE OF CONTEXTS, 
 
 SEC. 
 
 370. In regard to the second ele- 
 
 ment of damage, the rule for 
 the measure of damages is 
 that the tenant is entitled to 
 recover for such loss as re- 
 sults directly and necessarily 
 from the breach of the con- 
 tract. 
 
 371. Loss of prospective profits. 
 
 IV. In Regard to Buildings and 
 Improvements. 
 
 372. A general covenant by a lessee 
 
 to build is satisfied by an 
 erection of the building at 
 any time before the end of 
 the term. 
 
 373. In the absence of agreement, a 
 
 landlord is not liable for the 
 value of improvements made 
 by his tenant upon the de- 
 mised premises. 
 
 374. Authority to build. 
 
 375. Rights under alternative op- 
 
 tions. 
 
 376. Improvements as part of re- 
 
 alty. 
 
 377. Such covenants run with the 
 
 land. 
 
 378. Mechanics' liens for improve- 
 
 ments. 
 
 379. Proceedings for appraisal. 
 
 380. Restraints upon buildings. 
 
 381. Tenant's right to light and air 
 
 against landlord. 
 
 V. Restricting Use of Premises. 
 
 382. Validity of restrictions. 
 
 383. What constitutes a covenant 
 
 for restrictive use. 
 
 384. Equity will restrain an infrac- 
 
 tion of an agreement in a 
 lease in regard to the use of 
 the premises. 
 
 385. A covenant for exclusive per- 
 
 sonal occupation on the part 
 of the lessee cannot be 
 classed as one of the usual 
 covenants in a lease. 
 
 SEC. 
 
 386. An agreement by a lessee not 
 
 to "make or suffer" an unlaw- 
 ful use of the premises 
 should be interpreted as a 
 stipulation that shall be no 
 unlawful use. 
 
 VI. As to Sale of Premises. 
 
 387. An option in a lease giving the 
 
 lessee a privilege of purchas- 
 ing the premises. 
 
 388. A clause in a lease reserving 
 
 to the lessor the right to sell. 
 
 VII. For Insurance. 
 
 389. So common is the practice of 
 
 fastening on the lessee the 
 burden of insuring. 
 
 390. Measure of damages for failure 
 
 to insure. 
 
 VIII. For Repairs. 
 
 391. A covenant by a lessee to re- 
 
 pair. 
 
 392. It is the established rule of the 
 
 common law that an express 
 covenant to repair binds the 
 covenantor to make good any 
 injury which human power 
 can remedy. 
 
 393. Responsibility for rebuilding 
 
 rests on contract. 
 
 394. The phrase "unavoidable cas- 
 
 ualty" is in common use in 
 leases in this country and 
 has a well settled and un- 
 derstood meaning. 
 
 395. "Damages by the elements" 
 
 which are ordinarily except- 
 ed from a lessee's covenant 
 to keep in repair. 
 
 396. The external parts of premises 
 are those which form the in- 
 closure of them and beyond 
 which no part of them ex- 
 tends.
 
 TABLE OF CONTENTS. 
 
 XVll 
 
 SEC. 
 
 397. 
 
 398. 
 
 399. 
 400. 
 
 401. 
 402. 
 
 403. 
 404. 
 
 405. 
 
 406. 
 407, 
 408. 
 
 A general covenant to repair 
 must be construed to have 
 reference to the condition of 
 the premises at the time 
 when the covenant begins to 
 operate. 
 
 A lessee who has been com- 
 pelled to rebuild has no 
 claim on insurance taken out 
 by the lessor for his own 
 benefit. 
 
 City ordinance forbidding 
 wooden buildings. 
 
 A duty to maintain machinery 
 in a leased mill, will be cre- 
 ated by a covenant of the 
 kind under discussion. 
 
 Painting, papering and deco- 
 rating. 
 
 The point of time at which the 
 then condition of the prem- 
 ises furnishes the standard 
 of repair which a lessee is 
 bound to maintain. 
 
 When right of action accrues. 
 
 The obligation of a landlord 
 in any case to repair and re- 
 build leased premises rests 
 solely on express contract. 
 
 A tenant has no equity to com- 
 pel his landlord to expend 
 money received from an in- 
 surance company on the de- 
 mised premises being burned 
 down, in rebuilding the 
 premises. 
 
 In California. 
 
 By statute in Dakota. 
 
 A covenant by a lessor to make 
 all necessary repairs on the 
 outside of a building is not 
 a covenant that the outside 
 shall not give way. 
 
 SEC. 
 
 409. 
 410. 
 
 411. 
 
 412. 
 
 413. 
 
 414. 
 
 415, 
 
 416. 
 
 417. 
 
 418 
 419 
 
 420. 
 
 Requirement of notice to land- 
 lord. 
 Where a landlord fails to keep 
 his covenant to make exteri- 
 or repairs, a tenant has sev- 
 eral remedies. 
 
 A covenant to pay taxes like 
 one to pay rent is an under- 
 taking to do something with 
 respect to the land itself. 
 
 The general rule in regard to 
 leases for years is that where 
 the lease is silent on the sub- 
 ject, the landlord is bound 
 to pay all state and munici- 
 pal taxes. 
 
 In many jurisdictions it has 
 by statute been made the du- 
 ty of the tenant holding any 
 leasehold estate to pay the 
 taxes levied on the demised 
 premises. 
 
 The price charged for water 
 by a city is not a tax or as- 
 sessment chargeable upon 
 the premises. 
 
 The intention of the parties, 
 as shown by the language 
 of the instrument, determines 
 what taxes, burdens and as- 
 sessments are to be borne by 
 the lessee. 
 
 If a lessee of a part of a build- 
 ing covenants with the lessor 
 that he will pay the taxes. 
 
 Levy distinguished from as- 
 sessment. 
 
 Invalid taxes. 
 
 The destruction of the leased 
 premises does not as a gen- 
 eral rule release the tenant 
 from his covenant to pay 
 taxes. 
 
 What constitutes a breach. 
 
 Jones L. & T. — ii
 
 XVlll 
 
 TABLE OF CONTENTS. 
 
 CHAPTER VI. 
 
 ASSIGNMENT OF LEASES. 
 
 I. By Lessor. 
 
 SEC. 
 
 421. According to the modern rule 
 
 the power of a lessor is am- 
 ple to transfer either the en- 
 tire reversion or his interest 
 under the lease. 
 
 422. In regard to the effect of a 
 
 transfer of the reversion on 
 the rents. 
 
 423. In Illinois the statute of Anne 
 
 dispensing with attornment 
 was not regarded as in force 
 in 1871. 
 
 424. A reversion not being an estate 
 
 in possession, would lie in 
 grant and the ordinary mode 
 of transfer would be by deed, 
 signed, sealed and delivered. 
 
 425. Rent may be excepted in a 
 
 grant of a reversion by a 
 lessor. 
 
 426. Attornment has been defined 
 
 to be the acknowledgment by 
 a tenant. 
 
 427. Covenants in assignment to de- 
 
 liver possession. 
 
 428. A conveyance of the reversion 
 
 in fee to a lessee or his as- 
 signee holding an outstand- 
 ing lease causes the lease to 
 merge in the freehold estate. 
 
 429. Effect of sub-tenancy on 
 
 merger. 
 
 430. An assignment of a lessor's in- 
 
 terest under a lease without 
 a transfer of any rights in 
 the reversion is equivalent 
 to an assignment of rent. 
 
 //. By Lessee. 
 
 431. Transfer of lessee's interest. 
 
 432. Statutory provisions against 
 
 assignment and sub-letting 
 have been enacted in some 
 states. 
 
 433. In Georgia it is provided by 
 
 statute that an estate for 
 years, if it be in lands, passes 
 as realty. 
 
 434. In Texas. 
 
 435. "Where the whole of the term 
 
 of a leasehold is assigned, 
 there is no relation of land- 
 lord and tenant between the 
 assignor and the assignee. 
 
 436. What passes on an assignment. 
 
 437. In accordance with the princi- 
 
 ple that the form of the in- 
 strument of assignment is 
 immaterial. 
 
 438. The transfer of a lease by as- 
 
 signment may be by indorse- 
 ment on the back of the 
 lease or by separate instru- 
 ment. 
 
 439. A leasehold estate created by 
 
 an instrument under seal, 
 may be assigned by an in- 
 strument not under seal. 
 
 440. That the English statute of 
 
 frauds extends to agreements 
 for the assignment of a 
 lease. 
 
 441. The validity of a parol assign- 
 
 ment of a valid parol lease. 
 
 442. Where one other than the les- 
 
 see occupies leased premises 
 during the continuation of 
 the term and pays rent, he is 
 prima facie in as assignee of 
 the term. 
 
 443. A receiver appointed by a court 
 
 to take charge of a lessee's 
 property does not thereby 
 become an assignee of the 
 term. 
 
 444. Where a sheriff under an execu- 
 
 tion, sells a term for years, 
 it operates as an assignment 
 at law.
 
 TABLE OF COXTEXTS. 
 
 XIX 
 
 SEC. 
 
 445. There is a wide distinction in 
 
 law between an assignee of 
 a lease and a sub-tenant. 
 
 446. An underlease for the whole 
 
 term is an assignment. 
 
 III. Rights and Liabilities of Par- 
 ties. 
 
 Ail. The express covenants in a 
 lease continue to be binding 
 upon the covenantor not- 
 withstanding his assignment 
 of the lease. 
 
 448. The contract of the original 
 
 lessee continues in force un- 
 less the lessor accepts the 
 assignee as sole tenant and 
 absolves the original lessee. 
 
 449. Lessee is liable as surety for 
 
 the assignee. 
 
 450. The duration of a term after 
 
 an assignment does not at all 
 affect the obligation of a les- 
 see upon his express cove- 
 nant. 
 
 451. In case a lessee has been held 
 
 to his liability for rent after 
 an assignment, he will be en- 
 titled to recover the rent 
 from the assignees. 
 
 452. When the covenant to pay rent 
 
 is implied in law, acceptance 
 of rent directly from an as- 
 signee will discharge the 
 original lessee. 
 
 453. A surety for a lessee is not dis- 
 
 charged from liability on the 
 express covenants of the 
 lease by an assignment. 
 
 454. Liability of lessor on covenant 
 
 after assignment. 
 
 455. An assignee of a lease is bound 
 
 by privity of estate to per- 
 form the express covenants 
 which run with the land. 
 
 456. The liability of an assignee 
 
 upon the covenants of a 
 lease continues only so long 
 as the privity of estate con- 
 tinues. 
 
 457. The assignee of a leasehold es- 
 
 tate is not bound by the cov- 
 enants of the lease till the 
 transfer has been completed 
 by his acceptance of the as- 
 signment. 
 
 458. An actual entry by an assignee 
 
 upon the demised premises is 
 not necessary in order that 
 he should be bound by the 
 covenant to pay rent. 
 
 459. Who are entitled as assignees 
 
 of the reversion. 
 
 460. An assignee of part of leased 
 
 premises is liable for his pro 
 rata share of the rent re- 
 served in the lease, but he is 
 not liable for the entire rent. 
 
 461. Where a lessee makes a gen- 
 
 eral assignment of all his 
 property. 
 
 462. The assumption by an assignee 
 
 of a lease of all the obliga- 
 tions and liabilities of the 
 assignor creates a privity of 
 contract. 
 
 463. What constitutes an assump- 
 
 tion of covenants by as- 
 signee. 
 
 IV. Conditions against Assignment 
 and Sub-letting. 
 
 464. A covenant in a lease against 
 
 alienation without license is 
 at least as old as Dumpor's 
 case. 
 
 465. That an assignment contrary 
 . to a restriction in a lease is 
 
 not absolutely void, but void- 
 able only. 
 
 466. An ordinary covenant against 
 
 sub-letting and assignment is 
 not broken by a transfer of 
 the leased premises by opera- 
 tion of law. 
 
 467. The rule is universally admit- 
 
 ted that a covenant not to 
 assign a lease is not broken 
 by an underletting.
 
 XX 
 
 TABLE OF CO>TTENTS. 
 
 SEC. 
 
 468. A covenant not to assign or 
 
 sub-let is not necessarily 
 broken because some one 
 other than the lessee shares 
 in the benefits. 
 
 469. Change in business relations as 
 
 breach of covenant not to 
 sub-let. 
 
 470. Rule in Dumpor's case. 
 
 SEC. 
 
 471. In the United States the rule 
 
 in Dumpor's case, while sub- 
 ject to some adverse criti- 
 cism, has generally been re- 
 ceived as settled law. 
 
 472. Special license to assign or sub- 
 
 let. 
 
 473. If an assignee is led to act on 
 
 the assumption that the as- 
 signment will not be relied 
 upon as a ground for forfei- 
 ture. 
 
 CHAPTEE VII. 
 
 TERMINATION OF LEASES. 
 
 I. Disclaimer "by Tenant. sec, 
 
 SEC. 485, 
 
 474. Introductory. 
 
 474a. Effect of repudiation of ten- 
 ancy. 
 
 475. The most certain general test 
 
 of the sufficiency of a dis- 486. 
 claimer to create a forfei- 
 ture. 
 
 476. Generally, attornment or deliv- 
 
 ery of possession to a stran- 487. 
 ger or adverse claimant, or 
 any act disavowing the title 
 of the landlord. 488. 
 
 477. Conveyance by tenant. 
 
 478. By matter of record. 
 
 479. By deed recorded. 489. 
 
 480. Payment of rent. 490. 
 
 481. Mere words can never work a 
 
 forfeiture of an estate for 
 
 life or for years. 491. 
 
 II. Forfeiture for Breach of Con- 
 dition. 
 
 492. 
 
 482. Forfeitures are also incurred 
 
 by the breach of express or 
 conventional conditions. 
 
 483. Necessity for re-entry. 493. 
 
 484. How affected by statutes. 
 
 An option to claim an estate 
 for breach of condition is 
 suflSciently expressed by en- 
 try or acts equivalent there- 
 to. 
 
 That a condition in a lease 
 calling for a forfeiture is to 
 be strictly construed against 
 the lessor. 
 
 The mere breach of a covenant 
 by the tenant can give the 
 landlord no right of reentry. 
 
 A breach of an implied cove- 
 nant in a lease such as by 
 the commission of waste. 
 
 Acts of sub-tenant. 
 
 The general doctrine that equi- 
 ty will never lend its aid in 
 exacting a penalty. 
 
 Under certain circumstances a 
 court of equity may, without 
 violating any settled rules, re- 
 lieve against a forfeiture. 
 
 Only in exceptional cases will 
 equity relieve against a for- 
 feiture caused by a failure 
 to repair or insure. 
 Emblements.
 
 TABLE OF CONTENTS. 
 
 yxi 
 
 SEC. 
 
 494. A possibility, right of entry, 
 
 thing in action, cause of suit 
 or title for condition broken 
 could not be granted or as- 
 signed over at common law. 
 
 495. A landlord is not bound to de- 
 
 clare a forfeiture for breach 
 of a condition, as he may in- 
 sist on the tenant fulfilling 
 his obligations under the 
 lease. 
 
 496. Waiver of ground for forfei- 
 
 ture. 
 
 497. One common mode of effecting 
 
 a waiver is by the receipt of 
 rent due under the forfeited 
 lease. 
 
 498. The mere reception of rent ac- 
 
 crued before the time for the 
 termination of the tenancy 
 is not a waiver of the notice 
 to quit nor a renewal of the 
 lease. 
 
 499. That lessors are indulgent and 
 
 accommodating, allowing a 
 default to continue. 
 
 500. The doctrine of waiver does 
 
 not apply when the covenant 
 broken is a continuing one. 
 
 501. Liability for rents subsequent 
 
 to a forfeiture. 
 
 III. Effect of Non-payment of Rent. 
 
 502. The right to enter for non-pay- 
 
 ment of rent is not an inci- 
 dent of a lessor's estate at 
 common law. 
 
 503. Necessity for demanding rent. 
 
 504. An express stipulation in a 
 
 lease dispensing with the re- 
 quirement for a demand for 
 rent is valid. 
 
 505. Damages from an alleged tres- 
 
 pass by a landlord will not 
 constitute such a legal set- 
 off against an unpaid quar- 
 ter's rent that it will prevent 
 a forfeiture for non-payment 
 of rent. 
 
 SEC. 
 
 506. Arizona. 
 
 507. Arkansas. 
 
 508. California. 
 
 509. Colorado. 
 
 510. Connecticut. 
 
 511. Florida. 
 
 512. Georgia. 
 
 513. Illinois. 
 
 514. Indiana. 
 
 515. Iowa. 
 
 516. Kansas. 
 
 517. Massachusetts. 
 
 518. Michigan. 
 
 519. Minnesota. 
 
 520. Mississippi. 
 
 521. Missouri. 
 
 522. Nebraska. 
 
 523. New Hampshire. 
 
 524. New Jersey. 
 
 525. New York. 
 
 526. North Carolina. 
 
 527. North Dakota. 
 
 528. Oregon. 
 
 529. Oklahoma. 
 
 530. Pennsylvania. 
 
 531. Rhode Island. 
 
 532. South Carolina. 
 
 533. Vermont. 
 
 534. Virginia. 
 
 535. West Virginia. 
 
 536. Wisconsin. 
 
 537. Wyoming. 
 
 lY. Surrender. 
 
 538. 
 
 A surrender is a yielding up 
 of an estate for life, or years, 
 to him who hath the immedi- 
 ate estate in reversion or re- 
 mainder. 
 
 A surrender may be effected 
 by express words or it may 
 be implied from the conduct 
 of the parties. 
 
 Executed agreement. 
 541. Cancellation and destruction 
 of lease. 
 
 539. 
 
 540.
 
 xxn 
 
 TABLE OF CONTENTS. 
 
 SEC. 
 
 542. A common method of effecting 
 
 a surrender of a term for 
 years by operation of law is 
 by the substitution of a new 
 lease. 
 
 543. The doctrine of Thomas v. 
 
 Cook. 
 
 544. The foregoing doctrine has 
 
 been restricted in its appli- 
 cation by a subsequent Eng- 
 lish case. 
 
 545. Change in terms. 
 
 546. Leases in futuro. 
 
 547. Where the tenant leaves the 
 
 land and abandons the pos- 
 session. 
 
 548. The delivery of the key by the 
 
 tenant and keeping it by the 
 landlord are not sufficient to 
 show a surrender. 
 
 549. After an unauthorized aban- 
 
 donment by a tenant the 
 landlord may, by taking 
 proper precautions, relet to 
 another without creating a 
 surrender by operation of 
 law. 
 
 It is essential that the landlord 
 notify his tenant that his re- 
 sponsibility for the deficien- 
 cy in rent will continue. 
 
 Consent of tenant implied. 
 
 Rights of sub-tenants. 
 
 The question whether negotia- 
 tions and circumstances 
 amounted to a surrender. 
 
 550. 
 
 551. 
 552. 
 553. 
 
 v. Restoration of Possession to 
 Landlord. 
 
 554. Duty of tenant to yield up pos- 
 
 session. 
 
 555. It often happens that a tenant 
 
 who intends to quit at the 
 end of his term is not able 
 to complete his arrangements 
 promptly and desires to re- 
 main a short time. 
 
 SEC. 
 
 556. As the law stood before modi- 
 
 fied by statute, a wide scope 
 of action was allowed to an 
 owner in using force to re- 
 cover possession of his prop- 
 erty. 
 
 557. A forcible entry within the 
 
 meaning of the forcible en- 
 try and detainer act is one 
 accompanied with some cir- 
 cumstance of force or vio- 
 lence of the person. 
 
 558. Civil liability of landlord re- 
 
 gaining possession by force. 
 
 559. Trespass for assault and bat- 
 
 tery against landlord. 
 
 560. Where a tenant is legally enti- 
 
 tled to possession and the 
 landlord forcibly enters on 
 him. 
 
 561. The rule allowing the use of 
 
 force to recover possession 
 of real estate, which makes 
 the landlord a law unto him- 
 self, is not conducive to good 
 business principles. 
 
 562. Forcible entry and detainer 
 
 distinguished from summary 
 process. 
 
 563. The action of unlawful de- 
 
 tainer can be maintained on- 
 ly where the relation of 
 landlord and tenant subsists 
 between the parties to the 
 action. 
 
 564. Statutory penalty for holding 
 
 over. 
 
 565. A bill in equity is not the ap- 
 
 propriate remedy to obtain 
 possession of premises from 
 a tenant holding over. 
 
 566. Form of judgment in summary 
 
 process. 
 
 VI. Emblements. 
 
 567. The term emblements is used 
 
 to designate not only certain
 
 TABLE OF CONTENTS. 
 
 xzm 
 
 SEC. 
 
 products of the soil, but also 
 the right of a tenant to take 
 and carry away such prod- 
 ucts after his tenancy has 
 ended. 
 
 568. During the continuance of his 
 
 holding a tenant's right to 
 emblements is undoubted. 
 
 569. The doctrine of emblements is 
 
 founded entirely on the un- 
 certainty of the termination 
 of the tenant's estate. 
 
 570. The common-law rule is that 
 
 every one who has an un- 
 certain estate or interest in 
 land, if his estate determines 
 by act of God before sever- 
 ance of the crop, shall have 
 
 emblements, or they go to 
 his executor or adminis- 
 trator. 
 
 571. An executor or a lessee of a 
 
 tenant for life is entitled to 
 crops which were planted 
 during his lifetime but did 
 not mature till after his 
 death. 
 
 572. Rights of lessee under lease 
 
 subject to a prior lien. 
 
 573. An outgoing tenant in agricul- 
 
 ture is not entitled to ma- 
 nure made on the farm, even 
 though it is made by his own 
 cattle and from his own fod- 
 der. 
 
 CHAPTER VIII. 
 
 RIGHTS AND LIABILITIES OF THE PARTIES. 
 
 I. Landlord's Responsibility for 
 Good Condition of Premises. 
 
 SEC. 
 
 574. The well-established general 
 
 rule is that, upon a demise 
 of premises, there is no im- 
 plied warranty or implied 
 condition as to fitness. 
 
 575. Oral evidence of warranty. 
 
 576. Demise of dwelling-houses. 
 
 577. Furnished house. 
 
 578. Exceptions to rule. 
 
 579.. Liability of landlord for per- 
 sonal injuries to tenant. 
 
 580. Fraud a basis of landlord's lia- 
 
 bility. 
 
 581. When there are concealed de- 
 
 fects attended with danger to 
 an occupant, and which a 
 careful examination would 
 not discover, known to the 
 lessor. 
 
 582. Landlord's duty to learn de- 
 
 fects). 
 
 583. Unsanitary condition of leased 
 
 house. 
 
 584. Duty on landlord to warn 
 
 against infection. 
 
 585. Liability to guests of the ten- 
 
 ant. 
 
 586. Injuries to property of the ten- 
 
 ant. 
 
 587. By statute in Georgia. 
 
 77. Liability Imposed by Lessor's 
 Agreement to Repair. 
 
 588. Lessor's obligation to repair. 
 
 589. An obligation to repair cannot 
 
 be placed on the landlord 
 without clear and explicit 
 language. 
 
 590. Payment by landlord for re- 
 
 pairs made by tenant. 
 
 591. Exempting lessee from obliga- 
 
 tion to repair.
 
 XXIV 
 
 TABLE OF CONTENTS. 
 
 592. The landlord's responsibility 
 
 for damages caused by bis 
 failure to perform. 
 
 593. Notice to landlord of need of 
 
 repairs. 
 
 594. Another ground on which the 
 
 landlord's freedom from re- 
 sponsibility can be placed is 
 the doctrine of contributory 
 negligence. 
 
 595. Rights conferred on third per- 
 
 sons by a covenant to repair. 
 
 596. Liability of landlord for unsafe 
 
 repairs. 
 
 597. Repairs effected through agent 
 
 or independent contractor. 
 
 598. Non-performance of landlord's 
 
 voluntary promise to repair. 
 
 III. Liability for 'Nuisance. 
 
 599. The occupier, and not the own- 
 
 er, is bound, as between him- 
 self and the public, to keep 
 buildings and other struc- 
 tures abutting on the high- 
 way and street in repair. 
 
 600. Injuries on abutting sidewalks. 
 
 601. Injuries from falling articles. 
 
 602. Snow and ice. 
 
 603. Landlord and tenant both re- 
 
 sponsible. 
 
 604. Necessity for request to abate 
 
 nuisance. 
 
 605. A lessor is not liable for a nui- 
 
 sance created and main- 
 tained on the premises by 
 the tenant. 
 
 606. Moreover, a landlord is not 
 
 liable for injuries resulting 
 from an improper use of the 
 demised premises by the ten- 
 ant. 
 
 607. The landlord is liable for the 
 
 damage caused when the 
 premises were let with the 
 want of repair or the nui- 
 sance complained of already 
 existing. 
 
 SEC. 
 
 608. Injuries on public wharves. 
 
 609. Collapse of building. 
 
 610. Statutory nuisances. 
 
 611. What constitutes a reletting. 
 
 lY. Premises Occupied ty More 
 than One Tenant. 
 
 612. Obligation to repair roof. 
 
 613. Duty as to sidewalks. 
 
 614. Duty of landlord as to common 
 
 passageways. 
 
 615. There are other decisions in 
 
 which the reasoning is di- 
 rectly opposed to the princi- 
 ples just laid down. 
 
 616. To make a landlord liable for 
 
 injuries caused by water 
 flowing from a closet. 
 
 617. To whom this duty extends. 
 
 618. Duty of landlord to strangers. 
 
 619. What constitutes a fulfilment 
 
 of the landlord's duty. 
 
 620. The place where the accident 
 
 occurs is not material, pro- 
 vided it was on a common 
 platform or passageway. 
 
 621. Defective carpeting of passage- 
 
 ways. 
 
 622. Repairs interfering with enjoy- 
 
 ment. 
 
 623. Liability of landlord for negli- 
 
 gence of janitor. 
 
 624. A tenant of a part of a building 
 
 is bound to exercise due care 
 in the use and control of his 
 part of the premises. 
 
 y. Responsibility for Waste. 
 
 625. Waste may be defined to be any 
 
 act or omission of duty by a 
 tenant of land which does a 
 lasting injury to the free- 
 hold. 
 
 626. With respect to the mode of 
 
 procedure by which a tenant 
 was made to account for the 
 waste committed by him.
 
 TABLE OF CONTENTS. 
 
 XXV 
 
 627. At common law, a tenant at 
 
 will was punishable for vol- 
 untary waste, but not for per- 
 missive waste. 
 
 628. Independent of an express 
 
 agreement on the part of a 
 lessee, the law imposes on 
 him an obligation to treat 
 the premises in such a way 
 that no substantial injury 
 shall be done to the property. 
 
 629. A tenant is only bound to make 
 
 tenantable repairs, and is not 
 liable for the ordinary "wear 
 and tear" of the premises. 
 
 630. Where the parties to a lease of 
 
 real property have expressly 
 covenanted to repair. 
 
 631. On a demise of farming lands a 
 
 covenant is raised by opera- 
 tion of law that they shall be 
 used as such and cultivated 
 in a husbandlike manner. 
 
 632. A tenant, whether rightfully in 
 
 possession or not, cannot, 
 without the consent of the 
 landlord, make material 
 changes or alterations In a 
 building to suit his taste or 
 convenience. 
 
 633. The cases in the country relied 
 
 on to show an amelioration 
 of the strict English rule. 
 
 634. The intent or motive with 
 
 which a tenant acts is imma- 
 terial in determining what 
 constitutes waste. 
 
 635. A tenant for years who cuts 
 
 standing timber for the pur- 
 pose of sale. 
 
 636. Where wild timber land is 
 
 leased for farming. 
 
 637. It is the duty of a tenant for 
 
 life to cause all taxes as- 
 sessed against his estate dur- 
 ing the tenancy to be paid. 
 
 638. When waste is threatened, an 
 
 injunction to prevent it is 
 the proper remedy. 
 
 639. Forfeiture of the place wasted 
 
 and treble damages were the 
 punitive measures provided 
 by the Statute of Gloucester. 
 
 VI. Actions Relative to Possession. 
 
 640. The common-law rule is that 
 
 actual or constructive posses- 
 sion is necessary to support 
 an action of trespass quare 
 clausum. 
 
 641. However, a qualification of the 
 
 foregoing rule permits the 
 landlord, while a tenant is in 
 possession, to maintain tres- 
 pass on the case. 
 
 642. In determining whether the 
 
 landlord or tenant or both 
 may recover damages for in- 
 jury to real estate, the gen- 
 eral rule applies that wher- 
 ever a legal right is violated 
 the owner of such right is en- 
 titled to action therefor. 
 
 643. If a tenant be deprived of his 
 
 leasehold interest in conse- 
 quence of the appropriation 
 by the public to public uses 
 of the property upon which 
 his leasehold estate rests, it 
 cannot be doubted that he is 
 deprived of his property. 
 
 644. According to common law rules 
 
 of pleading, not only must 
 the fact that the plaintiff is 
 a reversioner appear, but the 
 extent of the reversion, 
 whether it is for years or for 
 life or in fee. 
 
 645. A landlord has no such interest 
 
 in the growing crops of his 
 tenant as to enable him to 
 maintain an action against a 
 person who injures the crop. 
 
 646. Tenants^ at will and by suffer- 
 
 ance.
 
 XXVI 
 
 TABLE OF CONTENTS. 
 
 SEC. 
 
 647. An action of trespass by the 
 landlord will not lie against 
 a tenant pending the term, 
 because the wrong which is 
 the gist of the action is an 
 
 offense against the actual 
 possession and right of pos- 
 session, and these are in the 
 tenant. 
 
 CHAPTEE IX. 
 
 EENT AND ITS RECOVERY BY ACTION. 
 
 I. Nature of Rent. 
 
 SEC. 
 
 648. Rent has been defined generally 
 
 to be a return or compensa- 
 tion for the possession of 
 some corporeal inheritance. 
 
 649. A fee farm rent arises where 
 
 the rent is created by deed 
 and the fee is granted. 
 
 II. Actions to Recover Rent. 
 
 650. Remedies for recovering rent. 
 
 651. The statutory action for use 
 
 and occupation Is of the na- 
 ture of assumpsit at common 
 law on an implied promise, 
 and is not an action ex de- 
 licto. 
 
 652. The statute providing a rem- 
 
 edy for the recovery of rent, 
 by action of assumpsit for 
 use and occupation, limits it 
 to cases where the agreement 
 is not by deed. 
 
 653. The whole action for trespass 
 
 for mesne profits is a con- 
 trivance for awkward con- 
 struction. 
 
 654. An action for use and occupa- 
 
 tion cannot be maintained ex- 
 cept where the relation of 
 landlord and tenant exists. 
 
 655. "While the law will imply the 
 
 relation of landlord and ten- 
 ant from the fact of the oc- 
 cupancy of the premises with 
 
 SEC. 
 
 the consent of the owner, 
 this implication may be re- 
 butted. 
 
 656. Recovery of crop rents. 
 
 657. If there is no actual ouster or 
 
 eviction of one tenant in 
 common by the other, neither 
 is liable to the other for mere 
 use and occupation. 
 
 658. That rent is an incident to the 
 
 reversion, and that whoever 
 is entitled to the reversion at 
 the time the rent becomes 
 payable is of right entitled 
 to it. 
 
 659. A sub-tenant is not answerable 
 
 to the original lessor for the 
 rental, as there is neither 
 priority of estate nor prior- 
 ity of contract between them. 
 
 660. Where the fact of an agency is 
 
 not disclosed at the time an 
 agent enters into a contract 
 of lease for his principal. 
 
 661. A covenant to pay rent creates 
 
 no debt or legal demand for 
 rent until the time stipulated 
 for payment arrives. 
 
 662. An undertaking in writing at- 
 
 tached to a lease between 
 landlord and tenant by which 
 a third person, without ex- 
 pressing any consideration, 
 agrees to become surety. 
 
 663. Alterations in amount of rent 
 
 and mode of payment.
 
 TABLE OF CONTENTS. 
 
 XXVll 
 
 SEC. 
 
 664. A power of attorney contained 
 
 in a lease to confess judg- 
 ment for rent due and inter- 
 est is valid. 
 
 665. The only defenses against an 
 
 action for rent reserved in a 
 valid lease are eviction, re- 
 lease and surrender of the 
 term. 
 
 666. Interest is recoverable as of 
 
 right upon contracts in writ- 
 ing to pay money upon a day 
 certain. 
 
 III. Apportionment. 
 
 667. By the general rule of the com- 
 
 mon law, rent may be appor- 
 tioned as to estate, but not as 
 to time. 
 
 668. When part of a reversion is 
 
 sold, the law will apportion 
 the rent. 
 
 669. Where a lessee assigns a part 
 
 of his interest, the rent may 
 be apportioned between the 
 parties holding the premises. 
 
 670. The rent which follows the re- 
 
 version as an incident is the 
 rent which falls due subse- 
 quent to the transfer. 
 
 671. In most states of the United 
 
 States there are statutes pro- 
 viding for apportionment in 
 case the estate of the lessor 
 is determinable. 
 
 IT. Set-Off and Recoupment. 
 
 672. The cost of repairs made by a 
 
 tenant with the consent of 
 the landlord and for which 
 the landlord agreed to pay. 
 
 673. The extent of the right of a 
 
 tenant entering or remaining 
 in possession of the premises 
 after the failure of the land- 
 lord to repair is to recoup. 
 
 674. Furthermore, a lessee sued for 
 
 rent may recoup in damages 
 for a false allegation of the 
 landlord. 
 
 y. Abatement of Rent. 
 
 675. The destruction by fire of 
 
 buildings upon leased prem- 
 ises does not relieve the les- 
 see from his obligation upon 
 an express covenant to pay 
 rent. 
 
 676. When premises have burned 
 
 down and the landlord has 
 collected insurance, a court 
 of equity will not prevent 
 him from collecting the rent. 
 
 677. The general rule of the com- 
 
 mon law, as stated above, is 
 predicated upon the assump- 
 tion that an interest in the 
 land or soil upon which the 
 burned buildings stood 
 passed under the lease. 
 
 678. In Nebraska there has been a 
 
 vigorous protest against the 
 common-law rule of contin- 
 ued liability on express cove- 
 nants after the destruction 
 of the premises. 
 
 679. A provision that, if premises 
 
 are destroyed by fire, rent 
 shall be suspended until they 
 shall be put in proper condi- 
 tion for use. 
 
 680. A case where a leased building 
 
 is torn down under power of 
 eminent domain to widen a 
 street. 
 
 681. In many jurisdictions the rule 
 of the common law as to con- 
 tinued liability for rent after 
 destruction of the premises 
 has been abolished or modi- 
 fied by statutes.
 
 XXVlll 
 
 TABLE OF CONTENTS. 
 
 CHAPTEE X. 
 
 ESTOPPEL TO DENY LANDLORD S TITLE. 
 
 SEC. 
 
 682. Modern rule of estoppel to deny 
 
 title between landlord and 
 tenant. 
 
 683. Where a lessee has had full 
 
 benefit of his term, he is 
 estopped to deny the capacity 
 or power of the lessor to exe- 
 cute. 
 
 684. To allow a tenant to object to 
 
 the right of joint lessors to 
 maintain a joint action to re- 
 cover the premises. 
 
 685. A tenant at will equally with a 
 
 tenant for years or from year 
 to year. 
 
 686. Occupation under a void or im- 
 
 properly executed lease. 
 
 687. A disability to contract of one 
 
 who enters upon land by per- 
 mission of another does not 
 relieve him from the obliga- 
 tion of returning the posses- 
 sion. 
 
 688. A tenant cannot deny the land- 
 
 lord's title while remaining 
 in possession after the ex- 
 piration of his term. 
 
 689. Purchase of adverse title by 
 
 tenant. 
 
 690. An owner of land or one under 
 
 obligation to pay taxes there- 
 on, cannot acquire a tax title 
 so as to defeat incumbrances. 
 
 691. The rule that denies to a ten- 
 
 ant the right to dispute his 
 landlord's title cannot be so 
 extended as to take away 
 from him the right to prove 
 exactly what his relationship 
 to the landlord originally 
 was. 
 
 692. The estoppel upon a tenant 
 
 only extends to the land in- 
 cluded in the lease. 
 
 SEC. 
 
 693. The operation of the general 
 
 rule of estoppel. 
 
 694. The parties may by their agree- 
 
 ment waive the rule of law 
 that a tenant cannot deny his 
 landlord's title. 
 
 695. After the expiration of his 
 
 lease a tenant may disclaim 
 and disavow his tenancy. 
 
 696. Some overt act is necessary to 
 
 make a tenant's holding ad- 
 verse. 
 
 697. The effect of a possession pre- 
 
 vious to the acceptance of a 
 lease on the right to dispute 
 the title. 
 
 698. In California an exception to 
 
 the general rule is made. 
 
 699. The relation of landlord and 
 
 tenant, once established, at- 
 taches to all who may suc- 
 ceed to the possession 
 through or under the tenant. 
 
 700. That the estoppel inures both 
 
 as to its benefit and burden 
 to privies in law, in blood 
 and in estate. 
 
 701. The burden is on the tenant, in 
 
 an action for the rent or to 
 recover possession of the 
 premises, to establish that 
 the case falls within some ex- 
 ception of the general rule 
 stated. 
 
 702. Where the tenant has been in- 
 
 duced to accept the lease by 
 misrepresentation, fraud or 
 trick practiced upon him by 
 the lessor, he is not estopped. 
 
 703. Showing transfer or expiration 
 
 of landlord's title. 
 
 704. A tenant may purchase his 
 
 landlord's title at an execu- 
 tion sale.
 
 TABLE OF CONTENTS. 
 
 XXIX 
 
 SEC. 
 
 705. After a judgment of eviction 
 
 has been obtained against a 
 tenant, he may proceed to 
 buy in and set up the adverse 
 title of a stranger. 
 
 706. An evicted tenant may take a 
 
 new lease from the party 
 evicting him. 
 
 707. Although it is well established 
 
 that a tenant cannot volun- 
 tarily attorn to an adverse 
 claimant. 
 
 708. Estoppel does not bar a lessee 
 
 from exercising a power of 
 eminent domain. 
 
 709. The attornment of a tenant to 
 
 a third person does not have 
 the effect of making the pos- 
 session of the tenant the con- 
 structive possession of the 
 stranger to whom he attorns. 
 
 CHAPTEE XI. 
 
 FIXTURES. 
 
 SEC. 
 
 710. The general rule of law is that 
 
 whatever is fixed to the soil 
 becomes a part of the realty. 
 
 711. The original doctrine was that 
 
 fixtures were generally re- 
 garded as immovable. 
 
 712. Fixtures which would be de- 
 
 stroyed in removal. 
 
 713. Agreements as to removal. 
 
 714. If a grantee of the reversion is 
 
 injured by an agreement 
 which entitles the tenant to 
 remove buildings or fixtures. 
 
 715. The agreement allowing remov- 
 
 al must be made before the 
 building is erected. 
 
 716. In the absence of a special 
 
 agreement, a tenant under a 
 lease for a specific term must 
 ordinarily remove his fix- 
 tures during the term. 
 
 717. Where a right of removal con- 
 
 ferred by agreement is con- 
 ditioned on the performance 
 of all the undertakings in the 
 lease. 
 
 718. Effect of renewal on right to 
 
 remove fixtures. 
 
 719. Time for removal under agree- 
 
 ment. 
 
 SEC. 
 
 ,720. Moreover, there is good author- 
 ity for the position that the 
 rights conferred by an agree- 
 ment for removal are not 
 lost by the acceptance of a 
 new lease. 
 
 721. Removal during extension of 
 
 term. 
 
 722. A lessor may by estoppel be 
 
 precluded from claiming fix- 
 tures and improvements. 
 
 723. A mortgagee from a tenant 
 
 stands in no better position 
 than the tenant. 
 
 724. The term improvements as 
 
 used to describe the additions 
 made to leased premises. 
 
 725. Fixtures erected by the tenant 
 
 for the purpose of carrying 
 on his trade. 
 
 726. As a rule, a dwelling house or 
 
 similar structure erected on 
 leasehold land is deemed a 
 part of the realty. 
 
 727. The strict rule that a building 
 
 becomes a part of the realty 
 is relaxed. 
 
 728. Fixtures used for agricultural 
 
 purposes.
 
 TABLE OF OASES. 
 
 IReferences are to Sections.'} 
 
 Abbey Homestead Asso. v. Wil- 
 
 lard 476 
 
 Abbott V. Bosworth 72 
 
 V. Jackson 604, 607 
 
 V. Land &c. Co. 130, 132 
 
 Abby V. Billups 392 
 
 Abeel V. Hubbell 221 
 
 V. RadclifE 343 
 
 Abercrombie v. Redpath 430 
 
 Aberdeen Coal &c. Co. v. Evans- 
 
 ville 539 
 Abrahams v. Tappe 482 
 Abrams v. Sheehan 422, 430 
 V. Watson 361, 505 
 Accidental &c. Ins. Co. v. Mac- 
 kenzie 688 
 Acker v. Witherell 442 
 Ackerman v. Lyman 2, 27 
 ^ckland v. Lutley 261 
 Adair v. Bogle 140, 369, 370 
 Adam v. Arnold 660 
 Adams v. Beach 446 
 V. Bigelow 671 
 V. Boelger 78 
 V. Burke 447 
 V. echoes 206, 208, 268, 304 
 V. Fletcher 600 
 V. French 658 
 V. Gibney 349 
 V. Goddard 376, 429, 659 
 V. McKesson 48, 49 
 V. Martin 686 
 V. Werner 353 
 Adams Express Co. v. McDon- 
 ald 201 
 Adler v. Mendelson 209 
 Adreon v. Hawkins 462 
 Agar V. Winslow 358 
 Agate V. Lowenbein 632 
 V. Lowenstein 474a 
 Agnew V. Sexton 664 
 V. Whitney 724 
 A. G. Rhodes &c. Co. v. Weeden 161 
 Ahern v. Steele 604 
 Aiken v. Blaisdell 121 
 V. Smith 46, 48 
 Ainsworth v. Backus 389 
 
 Ainsworth v. Moriah Lodge 
 
 115 
 
 V. Ritt 
 
 
 677 
 
 V. Williams 
 
 
 61 
 
 Aitkin v. Young 
 
 
 160 
 
 Albert v. State 
 
 
 608 
 
 Albin V. Riegel 
 
 
 572 
 
 Alcorn v. Morgan 
 
 59, 
 
 255 
 
 Alderson v. Marshall 
 
 682, 
 
 696 
 
 V. Miller 
 
 
 702 
 
 Aldrich v. Reynolds 
 
 
 572 
 
 Alexander v. Archer 
 
 
 2 
 
 V. Bishop 
 
 140, 
 
 369 
 
 V. Buffington 
 
 
 89 
 
 V. Fisher 
 
 635, 
 
 636 
 
 V. Harris 
 
 
 252 
 
 V. Hodges 
 
 471, 
 
 500 
 
 V. Rhodes 
 
 
 596 
 
 V. Tolleston Club 
 
 104, 
 
 114 
 
 V. Touhy 376, 495, 496, 497 
 
 V. Warrance 649 
 
 Alger V. Kennedy 110, 355 
 Alleghany Oil Co. v. Bradford 
 
 Oil Co. 483 
 
 Allen V. Bartlett 201, 213, 699 
 
 V. Bicknell 558 
 
 V. Bryan 430, 658 
 
 V. Carpenter 230 
 
 V. Chatfield 682 
 
 V. Culver 331, 333, 392, 673 
 
 V. Dent 420, 496 
 
 V. Gates 713 
 
 V. Hall 705 
 
 V. Holkins 5 
 
 V. Howe 392 
 
 V. Keilly 121, 556 
 
 V. Kennedy 711 
 
 V. Lambden 57 
 
 V. Logan 127 
 
 V. Mansfield 175 
 
 V. Paul 474a, 699 
 
 V. Pell 324 
 
 V. Smith 616 
 
 V. Wooley 424 
 
 Allenspach v. Wagner 388 
 
 Allison V. Thompson 555 
 
 Almand v. Scott 50 
 
 Almy V. Allen 373 
 
 XXXI
 
 XXXll 
 
 TABLE OF CASES. 
 
 [References are to Sections.'] 
 
 Almy V. Greene 
 Alperin v. Earle 
 Alston V. Grant 
 Alsup V. Banks 
 Alton V. Midland R. 
 
 121, 453 
 620 
 586 
 111 
 595 
 
 Alwood V. Ruckman 47, 50, 52, 53 
 Alworth V. Gordon 
 
 264, 272, 274, 297 
 
 Ambrose v. Root 561 
 
 American &c. Co. v. Peoria &c. 
 
 Co. 120 
 
 V. Turner 421, 422 
 
 Ames V. Moir 75 
 
 V. Norman 88 
 
 V. Schuesler 201, 202 
 
 Amick V. Brubaker 175 
 
 Ammidown v. Ball 107 
 
 Amory v. KannofEsky 538, 543 
 
 V. Melvin 416, 417 
 
 Amsden v. Atwood 
 
 180, 201, 204, 555, 661 
 
 V. Blaisdell 182 
 
 Amter v. Conlon 6 
 
 Anderson v. Bentley 640 
 
 V. Comeau 163 
 
 V. Critcher 72, 164, 651 
 
 V. Darby 89 
 
 V. Gray 699 
 
 V. Hammon 638 
 
 V. Hapler 635 
 
 V. Harris 164 
 
 V. Harwood 412 
 
 V. Hayes 581 
 
 V. Prindle 180, 217 
 
 V. Robbins 667 
 
 V. Simpson 160 
 
 V. Strauss 572 
 
 V. Swift 375 
 
 V. Winton 354, 365 
 
 Andreon v. Hawkins 661 
 
 Andrew's Case 321 
 
 Andrew v. Carlile 98 
 
 Andrews v. Jones 631 
 
 V. Kinsel 596 
 
 V. Woodcock 694 
 
 Angell V. Egger 53 
 
 Anonymous 439 
 
 Ansell V. Robson 461 
 
 Anthony v. Butler 165 
 
 V. New York &c. R. Co. 71, 164 
 
 Antoni v. Belknap 727 
 
 Antrey v. Antrey 171 
 
 Appleton V. Buskirk 556 
 
 V. Campbell 122 
 
 V. O'Donnell 99 
 
 Appling V. Odom 46 
 
 Archer v. Blalock 587 
 
 Arden v. Pullen 404 
 
 Ardesco Oil Co. v. Richardson 397 
 
 Ards V. Watkin 430 
 
 Areline v. Ridenbaugh 38 
 
 Arey v. Imson 31 
 
 Armington v. Stelle 135 
 
 Armour &c. Co. v. Des Moines 
 
 Pork Co. 550 
 
 Arms V. Burt 58 
 
 Armstrong v. Clark 650 
 
 V. Crilly 102 
 
 V. Cummings 648 
 
 V. Kattenhorn 160 
 
 V. Maybee 392 
 
 V. Wheeler 442 
 
 Arneson v. Spawn 640, 642, 644 
 
 Arnold v. Bright 125 
 
 V. Clark 592 
 
 V. Lyman 462 
 
 V. Nash 254 
 
 V. Woodard 689 
 
 Arnot V. Alexander 337 
 
 Arnsby v. Woodward 464, 497 
 
 Arras v. Richardson 121 
 
 Arthur v. Vanderplank 447 
 
 Ashbrook v. Dale 121, 122, 124 
 
 Ashby V. Ashby 391, 712 
 
 Ashley v. Ashley 641 
 
 V. Warner 170 
 
 V. Young 445 
 
 Aspdin V. Austin 319 
 
 Astor V. Hoyt 332, 459 
 
 V. Lent 442 
 
 V. Miller 458, 460 
 
 Astry V. Ballard 637 
 
 Atherstone v. Huddleston 87 
 
 Atkins V. Chilson 380, 491 
 
 V. Sleeper 119 
 
 V. Temple 631 
 
 Atkinson v. Cole 267 
 
 Atlanta &c. R. Co. v. McHan 190 
 
 Atlantic Dock Co. v. Leavitt 77, 318 
 
 Attaway v. Hoskinson 165 
 
 Attersoll v. Stevens 626 
 
 Attorney-General v. Backhouse 91 
 
 V. Baliol- College 91 
 
 V. Life & F. Ins. Co. 443 
 
 V. United Kingdom &c. 424 
 
 Atwood V. Cobb 38 
 
 V. Norton 152 
 
 Auer V. Penn 548, 549 
 
 Aull Sav. Bank v. Aull 428, 652, 654 
 
 Auriol V. Mills 447, 650 
 
 Austin V. Ahearne 84 
 
 V. Field 675, 677 
 
 V. Harris 438 
 
 V. Hudson River R. Co. 627 
 
 V. Huntsville &c. Co. 641 
 
 V. Thomson 190, 446 
 
 Autrey v. Autrey 658 
 
 Auworth V. Johnson 628 
 
 Averill v. Sawyer 132, 133 
 
 V. Taylor 144 
 
 Avery v. Daugherty 660 
 
 V. Doughety 349, 365
 
 TABLE OF CASES. 
 
 XXXUl 
 
 {References are to Sections.J 
 
 Aydlett v. Pendleton 
 Aylesford, Case of 
 Ayres v. Birtch 
 V. Draper 
 
 B 
 
 388 
 160 
 559 
 267 
 
 Babcock v. Albee 271 
 
 V. Kennedy 422 
 
 V. Scoville 458, 460, 669 
 
 Bachelour v. Gage 447 
 
 Backus' Appeal 346 
 
 Backus V. Sternberg 215, 217 
 Bacon v. Bowdoin 
 
 5, 102, 141, 143, 146 
 
 V. Brown 195, 202, 206, 232, 548 
 
 V. Combes 140 
 
 V. Howell 34 
 
 V. Park 420, 491 
 
 V. Waller 119 
 V. Western Furniture Co. 
 
 503, 514 
 
 Badcock v. Hunt 414 
 Bagley v. Columbus &c. R. Co. 
 
 567, 715 
 
 Bailey v. Campbell 3, 13, 690 
 
 V. Ferguson 47, 50 
 
 V. Fillebrown 53 
 
 V. Kilburn 688 
 
 V. Richardson 332, 429, 455, 459 
 
 V. Wells 448, 455 
 
 V. White 323 
 
 Bain v. McDonald 152 
 
 Baird v. Evans 673 
 
 Baker v. Allen 605 
 
 V. Hale 682 
 
 V. Jeffers 667 
 
 V. Jordan 568 
 
 V. McClurg 712 
 
 V. Pratt 682 
 
 Baldwin v. Kerliu 98 
 
 V. Morgan 108 
 
 V. Munn 140, 369 
 
 V. Skeels 371 
 
 V. Temple 698 
 
 V. Van Vorst 491 
 
 V. Walker 71, 164, 421 
 
 Baley v. Deakins, 1, 5 
 
 Ball V. Cullimore 186 
 
 V. Dunsterville 320 
 
 V. Lively 2 
 
 V. Wyeth 69 
 
 Ballance v. Peoria 99, 100, 109 
 
 Ballard v. Walker 74 
 
 Ballentine v. Poyner 632, 636 
 
 Balls V. Westwood 655 
 
 Bally V. Wells 330 
 
 Balmain v. Shore 86 
 
 Baltimore &c. R. Co. v. Pum- 
 
 phrey 592 
 
 V. Rose 608 
 
 v. West 180, 199 
 
 JojiiES L. & T. — iii 
 
 Banbury v. Sherim 201, 204 
 
 Bancroft v. Wardwell 3, 654, 655 
 
 Bandlow v. Thieme 625 
 
 Bangor v. Rowe 610 
 
 Bank v. Getchell 6 
 
 V. Mersereau 84 
 
 Bank &c. v. Wise 658, 670 
 
 Banks v. Haskie 339, 343 
 
 V. White 675 
 
 Bannon v. Mitchell 642 
 
 Barber v. Harris 88 
 
 Barclay v. Steamship Co. 330 
 
 V. Wainwright 378 
 
 Bard v. Elston 159 
 
 Barge v. Schiek 344 
 
 Barghman v. Portman 356 
 
 Barhydt v. Burgess 446, 447 
 
 Barker v. Troy £:c. R. Co. 136 
 
 Barlow v. Bell 255 
 
 V, Dahm 682 
 
 V. Wainwright 
 
 148, 180, 192, 199, 261 
 
 Barium v. Berger 241 
 
 Barnard v. Godscull 447 
 
 V. Pope 657 
 
 Barnes v. Barnes 96 
 
 V. Hogate 322 
 
 v. Ludington 137a 
 
 V. Northern Trust Co. 
 
 423, 438, 439 
 
 v. Shinholster 29, 34, 654 
 
 Barnett v. Barnes 136, 496 
 
 v. Feary 341 
 
 Barney v. Cain 507 
 
 V. Keith 58, 321, 349 
 
 V. Patterson 444 
 
 Barneycastle v. Walker 368 
 
 Barnhart v. Boyce 392 
 
 Barnum v. Landon 164 
 
 Barr v. Doe 172 
 
 V. Kimball 126, 128 
 
 Barret v. Blagrave 638 
 
 Barrett v. Bell 101 
 
 V. Boddie 354, 355, 356, 588 
 
 V. Cox 175, 197 
 
 V. Jefferson 12 
 
 V. Johnson 59, 67 
 
 V. Trainor 439 
 
 Barrie v. Smith 496 
 
 Barrington &c. Asso. v. Watson 464 
 
 Barron v. Marsh 654 
 
 V. Richard 331 
 
 Barry v. Briggs 125 
 
 V. Page 158 
 
 Bartlett v. Greenleaf 502 
 
 V. Haviland 710 
 
 V. Perkins 626, 640 
 
 V. Robinson 701 
 
 Bascom v. Dempsey 640 
 
 Baskin v. Seechrist 702 
 
 Bass V. Rollins 408
 
 XXXIV 
 
 TABLE OF CASES. 
 
 [References are to Sections.Ji 
 
 Bass V. West 
 Batchelder v. Dean 
 Bateman, Ex parte 
 Bates V. Dunham 
 Batterman v. Pierce 
 Bauer v. Knoble 
 
 433 
 
 112, 113 
 
 389 
 
 89 
 368, 673 
 487, 488 
 
 Bauernschmidt &c. Co. v. McCol- 
 
 gan 716, 718, 721 
 
 Baugher v. Wilkins 349, 361 
 
 Baughman v. Reed 50, 54 
 
 Baxter v. Browne 74 
 
 V. Bush 92 
 
 V. Lansing 491 
 
 V. Mattox 118 
 
 V. Smith 87 
 
 V. Taylor 640 
 
 Bay State Bank v. Kiley 263 
 
 Bayly v. Lawrence 678 
 
 Beach v. Grain 392 
 
 V. Farish 676 
 
 V. Gray 661 
 
 V. Morgan 164 
 
 V. Nixon 115 
 
 Beal V. Bass 502 
 
 V. Boston &c. Co. 422, 425 
 
 Beale v. Knowles 88 
 
 Beale & Taylor's Case 592 
 
 Beall V. White 543 
 
 Bean v. Edge 10 
 
 V. Fitzpatrick 355 
 
 Beardman v. Wilson 446 
 
 Beardsley v. Morrison 410 
 
 Bears v. Ambler 600 
 
 Beattie v. Parrott Silver &c. Co. 456 
 
 Beaty v. Gibbons 573 
 
 V. Jones 682 
 
 Beavers v. Trimmer 604, 644 
 
 Becar v. Flues 143, 152, 153, 539 
 
 Bechtel v. Cone 496 
 
 Beck V. Phillips 74 
 
 Becker v. De Forest 365 
 
 V. Werner 496, 502 
 
 Beckwith v. Howard 
 
 57, 322, 382, 428 
 
 Beddoe v. Wadsworth 332 
 
 Bedford v. Kelly 81 
 
 V. McElherron 310 
 
 V. Terhune 442, 446, 455, 543 
 
 Bedingfield v. Onslow 645 
 
 Beecher v. Duffield 356, 652 
 
 Beecher v. Parmell 558 
 
 Beers v. St. John 727 
 
 Bees V. Williams 543 
 
 Beham v. Ghio 677 
 
 Beidler v. Fish 366, 546 
 
 Beiler v. Devoll 152, 272 
 Belden v. Union Warehouse Co. 332 
 Belding v. Texas Produce Co. 
 
 201, 202 
 Belfour v. Weston 324, 404, 405, 676 
 
 Belinski v. Brand 494, 504 
 
 Bell V. American 
 League 
 
 V. Baker 
 
 V. Golding 
 
 V. Norris 
 Beiler v. Robinson 
 Bellows V. McSinnis 
 Beman v. Rufford 
 Bemis v. Becker 
 
 V. Wilder 
 Benavides v. Hunt 
 Benedict v. Everard 
 
 V. Morse 
 Beneteau v. Stubler 
 Benfey v. Congdon 
 
 Protective 
 
 443 
 126 
 101 
 661 
 342 
 631 
 9 
 432 
 
 465, 466 
 482 
 458 
 
 186, 428 
 586 
 
 203, 296 
 
 Benjamin v. Benjamin 19, 115, 563 
 
 Bennecke v. Insurance Co. 497 
 
 Bennet v. Bittle 364 
 
 V. Pixley 323 
 
 Bennett v. Herring 471, 494 
 V. Robinson 
 
 220, 222, 229, 230, 296 
 
 V. Scutt 38 
 
 Bennock v. Whipple 192, 239, 478 
 
 Benson v. Suarez 596 
 
 Bentley v. Adams 18 
 
 V. Atlanta 643 
 
 V. Sill 365 
 
 Benton v. Schulte 151 
 
 Benzein v. Robinett 666 
 
 Bergland v. Frawley 326 
 
 Bergman v. Roberts 697, 700 
 
 Berkeley v. Hardy 660 
 
 Berkowsky v. Cahill 201, 206 
 
 Bernal v. Hovious 54 
 
 Berner v. Gebhardt 299 
 
 Berrey v. Lindley 199, 255 
 
 Berrington v. Casey 349, 367a 
 
 Berry v. Van Winkle 374, 379 
 
 Bertie v. Flagg 584 
 
 Bertles v. Nunan 87, 88 
 
 Bertram v. Cook 688, 689 
 
 Best V. Jenks 87 
 
 Bettison v. Budd 412, 690, 703, 704 
 
 Betts V. Dick 465 
 
 Betz V. Maxwell 258, 270, 290 
 
 Bevans v. Briscoe 570, 571 
 
 Beverly v. Lincoln &c. Co. 652 
 
 Biddle v. Hussman 658, 668 
 
 V. Ramsey 346 
 
 V. Vandeventer 117 
 
 Bigelow V. Collamore 392 
 
 V. Jones 654 
 
 V. Willson 119 
 
 Biggs V. Brown 569 
 
 V. Ferrell 606 
 
 V. Stueler 210, 212, 549 
 
 Billings V. Canney 146 
 
 V. Tucker 10 
 
 Billingslea v. Ward 160 
 
 Bingham v. Honeyman 98
 
 TABLE OF CASES. 
 
 XXXV 
 
 [References are to Sections.l 
 
 Binney v. Chapman 
 Birch V. Wright 
 
 682, 703 
 3, 25, 183, 422 
 
 Birckhead v. Cummins 
 Bird V. Earle 
 
 V. Greville 
 Birmingham v. Rogers 
 Bishop V. American &c. Co. 
 
 V. Babcock 
 
 V. Blair 
 
 V. Clark 
 
 V. Doty 
 
 V. Howard 
 Bishop of Bath's Case 
 Bissell V. Lloyd 
 Bittenger v. Baker 
 Blachford v. Frenzer 
 Black V. Delaware &c. 
 
 V. Maitland 
 Blackenship v. Blackwell 
 Blackman v. Kessler 
 Blackmore v. Boardman 
 Blackwood v. Tanner 
 Blain v. Everitt 
 Blair v. Hardin 
 
 V. Rankin 
 Blake v. Baker 
 
 V. Clark 
 
 V. Coats 
 
 V. Concannon 
 
 V. Dick 
 
 V. Fash 
 
 V. Howe 
 
 V. Preston 
 
 V. Ranons 
 
 V. Sanderson 
 Blanchard v. Bowers 
 
 V. Raines 
 Blaney v. Hoke 
 Blantire v. Whitaker 
 Blasdell v. Souther 
 Bleecker v. Ballou 
 
 V. Smith 
 
 Bless V. Jenkins 157, 269, 274, 554 
 Blight V. Rochester 699, 700 
 
 Bliss V. Bange 561 
 
 V. Collins 668 
 
 Blish V. Harlow 272 
 
 Blitch V. Edwards 31 
 
 Block V. Smith 34 
 
 Blood V. Spaulding 607 
 
 Bloom V. Richards 307 
 
 Bloomer v. Merrill 681 
 
 Blue V. Sayre 476 
 
 Blue Stone Coal Co. v. Bell 488 
 
 Blum V. Robertson 29, 183, 254 
 
 Blumenberg v. Myres 215, 446 
 
 Blumenthal v. Bloomingdale 197 
 Blundell v. Brettargh 346 
 
 Bly V. Edison &c. Co. 642 
 
 Blythe v. Gately 417 
 
 Board &c. v. Grant 726 
 
 149 
 
 28 
 
 578 
 
 47 
 
 120 
 
 701 
 
 88 
 
 29 
 
 48 
 
 203 
 
 112 
 
 404, 410, 612 
 
 570, 572 
 
 455 
 
 Canal Co. 9 
 
 599 
 
 701, 702 
 
 128 
 
 330, 343 
 
 555 
 
 638 
 
 350 
 
 352, 435 
 
 415 
 
 102, 677 
 
 52 
 
 92 
 
 126, 410, 548, 576 
 
 59 
 
 690 
 
 654, 655 
 
 126, 576, 584 
 
 438, 447, 456 
 
 180, 261 
 
 34 
 
 138 
 
 424, 700 
 
 136 
 
 415 
 
 471, 498 
 
 137a, 
 
 598, 
 
 215, 
 
 147, 
 
 78, 672, 
 
 455, 456, 
 
 Board &c. v. Herrington 
 
 V. Streeter 
 Board of Directors v. Chicago 
 
 &c. Co. 
 Board of Supervisors v. Cowgill 
 Boardman v. Mostym 
 Bobb V. Syenite Granite Co. 
 Bodkin v. Arnold 697, 
 
 Bodman v. Murphy 
 Bodwell Granite Co. v. Lane 
 Boefer v. Sheridan 
 Bogert V. Dean 
 Boggs V. Black 
 Bohannons v. Lewis 
 Boisseau v. Fuller 
 Bold V. O'Brien 
 Boley V. Barutio 
 Bollenbacker v. Fritts 
 Boiling V. Stokes 
 Bolton V. Landers 
 
 V. Tomlin 
 Bonaparte v. Thayer 
 Bonetti v. Treat 
 Bonnell v. Allen 
 Bonner v. Welborn 
 Bonnewell v. Jenkins 
 Bonney v. Foss 
 Bonsall v. McKay 
 Boom Co. V. Patterson 
 Boone v. Chatfield 
 
 V. Eyre 
 
 V. Stover 
 Boot V. Wilson 
 Booth V. Clark 
 
 V. Cleveland &c. Co 
 
 V. Gaither 
 
 V. Merriam 
 Boraston v. Green 
 Borcherling v. Katz 
 Bordereaux v. Walker 
 Borderre v. Den 
 Bordman v. Osborn 
 Boreel v. Lawton 
 Borland's Appeal 
 Borman v. Sandgren 
 Born V. Stafford 
 Boston V. Binney 
 
 V. Worthington 
 Boston &c. R. Co. v. Ripley 
 
 V. Boston &c. R. Co. 
 Boston Block Co. v. BufRngton 
 Boston, C. & M. R. Co. v. Boston 
 
 &c. R. Co. 
 Boston Clothing Co. v 
 
 137a, 
 555, 
 
 41 
 
 576, 
 
 424, 
 
 351. 
 
 444, 
 
 2, 3, 652, 
 
 355, 
 
 Bostwick V. Losey 
 Boteler v. Espen 
 Botsford V. Morehouse 
 Botting V. Martin 
 Boudette v. Pierce 
 Bourdereaux v. Walker 
 
 Solberg 
 137a, 
 
 185, 
 
 703 
 420 
 
 204 
 20 
 464 
 641 
 702 
 389 
 257 
 627 
 538 
 310 
 392 
 143 
 628 
 28 
 639 
 415 
 257 
 148 
 673 
 462 
 573 
 •304 
 138 
 726 
 369 
 708 
 378 
 323 
 , 59 
 447 
 443 
 375 
 108 
 579 
 569 
 660 
 439 
 157 
 661 
 354 
 456 
 219 
 703 
 654 
 380 
 667 
 446 
 681 
 
 468 
 
 138 
 410 
 378 
 541 
 441 
 251 
 549
 
 XXXVl 
 
 TABLE OF CASES. 
 
 [References are to Sections.} 
 
 Bowdish V. Dubuque 697 
 
 Bowe V. Hunking 
 
 574, 576, 579, 581, 585 
 Bowen v. Clarke 549 
 
 V. Haskell 543 
 
 Bowers v. Cherokee Bob 63 
 
 Bowes V. East London &c. Co. 91 
 Bowman v. Bradley 20 
 
 V. Foot 483, 495, 498 
 
 Bowser v. Colby 491 
 
 Bowyer v. Seymour 535 
 
 Boyce v. Bakewell 461 
 
 V. Graham 640 
 
 V. Guggenheim 359 
 
 Boyd V. Douglass 726 
 
 V. Fraternity Hall Asso. 
 
 464, 468, 469 
 
 V. McCombs 661 
 
 V. Pico 336 
 
 V. Talbert 171, 513 
 
 Boyer v. Commercial Bldg Inv. 
 Co. 360 
 
 V. Smith 688 
 
 Bracket v. Norcross 
 Brackett v. Goddard 
 
 V. Wait 
 Bradbury v. Wright 
 Bradford Oil Co. v. Blair 
 
 V. Patten 
 Bradish v. Schenck 
 Bradley v. Bailey 
 
 V. Brigham 
 
 Chicago, M. & St. P. R. Co 
 Covel 
 
 V. 
 V. 
 V. 
 V. 
 V. 
 
 657 
 
 573 
 
 87 
 
 415 
 
 328 
 
 342 
 
 48 
 
 571 
 
 368 
 
 371 
 
 251 
 
 576 
 
 653 
 
 201, 202, 206, 210 
 
 453 
 
 169 
 
 575 
 
 18, 42, 59 
 
 346 
 
 353 
 
 255, 256 
 
 466 
 
 Goicouria 
 
 McDaniel 
 
 Slater 
 V. Walker 
 Brady v. Flint 
 Braley v. Henry 
 Branch v. Doane 
 Brand v. Frumveller 
 Brande v. Grace 
 Brandenburg v. Reitman 
 Brandon v. Aston 
 Brandt v. Phillippi 367 
 
 Branger v. Manciet 319, 361 
 
 Brant v. Vincent 197 
 
 Branton v. O'Briant 216 
 
 Brashear v. Chandler 397 
 
 Bratt V. Woolston 345 
 
 Brattle Square Church v. Grant 446 
 Braythwagto v. Hitchcock 197 
 
 Bream v. Dickerson 328, 332, 377 
 Breckenridge v. Parrott 328, 458 
 Brecknock Co. v. Pritchard 392 
 
 Breeding v. Taylor 427 
 
 Breese v. McCann 673 
 
 Breher v. Breese 136 
 
 Bremer v. Bigelow 692 
 
 Bresler v. Darmstaetter 555 
 
 Brett V. Cumberland 447 
 
 Breuckmann v. Twibill 549 
 
 Brewer v. Craig 29, 654 
 
 V. Dyer 439, 462 
 
 V. Keeler 689 
 
 V. Knapp 554 
 
 V. M'Gowen 23 
 
 V. National &c. Asso. 541 
 
 V. Stevens 16 
 
 V. Winchester 139 
 
 Brewster v. De Fremery 
 
 404, 576, 588, 612 
 
 V. Gracey 494 
 
 V. Hill 171 
 
 V. Kidgill 415 
 
 V. Kitchin 415 
 
 V. McNab 25 
 
 Breyfogle v. Wood 547 
 
 Briar v. Robertson 152 
 
 Bridgers v. Dill 645 
 
 Bridgham v. Tileston 439, 658 
 
 Bridgman v. Wells 199 
 
 Brierley v. Palmer 271 
 
 Briggs V. Austin 568 
 
 V. Hall 365 
 
 V. Hervey 274 
 
 V. Partridge 660 
 
 V. Roth 561 
 
 V. Thompson 357, 364 
 
 Brigham v. Rogers 132 
 
 Bright V. McOuat 215, 228 
 
 Briles v. Pace 151, 440 
 
 Brinckerhoff v. Phelps 369 
 
 Brinkley v. Hambleton 451 
 
 Bristor v. Burr 559 
 
 Brittin v. Wilder 87 
 
 Brohawn v. Van Ness 72 
 
 Bromley v. Aday 279 
 
 Bronson v. Coffin 331 
 
 Brock V. Berry 228 
 
 V. Dole 632, 638 
 
 Brockway v. Rowley 322 
 
 V. Thomas 159, 160, 375 
 
 Brooke v. O'Boyle 558 
 
 Brookhaven v. Baggett 42 
 
 Brooks V. Reynolds 381 
 
 V. Rogers 497, 635, 647 
 
 Brosman v. Kamer 447, 448 
 
 Broughton v. Conway "67 
 
 Brouwer v. Jones 382, 431 
 
 Brown v. Adams 656 
 
 V. Beatty 558 
 
 V. Bragg 168 
 
 V. Bridges 641 
 
 V. Burtinshaw 540 
 
 V. Butler 659 
 
 V. Carkeek 109, 373 
 
 V. Cavins 495, 549 
 
 V. Collins 624 
 
 V. Crump 628 
 
 V. Engel 29
 
 TABLE OF CASES. 
 
 XXXVll 
 
 {References are to Sections.] 
 
 Brown v. Holyoke &c. Co. 355 
 
 V. Kayser 174, 251, 261, 317 
 
 V. Keller 
 
 
 689 
 
 V. Lincoln 
 
 
 55 
 
 V. Parsons 
 
 
 569 
 
 V. Schiappacasse 
 
 66, 
 
 358 
 
 V. Smith 
 
 220, 
 
 225 
 
 V. Thurston 
 
 
 570 
 
 V. Toronto Gen. Hospital 
 
 592 
 
 V. Vanhorn 
 
 
 251 
 
 V. Woodworth 
 
 
 45 
 
 Browne v. Haseltine 
 
 
 701 
 
 V. Raban 
 
 
 464 
 
 V. Tighe 
 
 
 343 
 
 Brownell v. Welch 152, 
 
 159, 
 
 217 
 
 Browning v. Browning 
 
 
 149 
 
 V. Haskell 
 
 
 83 
 
 V. Wright 
 
 319, 
 
 350 
 
 Brozier v. Ansley 
 
 
 46 
 
 Bruce v. Fulton Nat. Bank 
 
 
 375 
 
 Bruckman v. Dry Goods Co. 
 
 
 18 
 
 Brugman v. Noyes 
 
 382, 
 
 383 
 
 Brummell v. Macpherson 
 
 
 470 
 
 Brunswick &c. R. Co. v. Hardey 
 
 642 
 
 Brunswick &c. Co. v. Spencer 
 
 587 
 
 Brunswick-Balke-Collender 
 
 Co. 
 
 
 V. Rees 
 
 
 613 
 
 Brush V. Beecher 
 
 
 116 
 
 Bryan v. Atwater 
 
 
 85 
 
 V. Whistler 
 
 
 44 
 
 V. Winburn 
 
 
 709 
 
 Bryant v. Pugh 
 
 50, 56 
 
 V. Sparrow 
 
 
 647 
 
 V. Wells 
 
 
 660 
 
 Bryden v. Northrup 
 
 383, 
 
 384 
 
 Buchanan v. Whitman 
 
 
 119 
 
 Buck V. Lewis 
 
 
 548 
 
 V. Morrow 
 
 
 140 
 
 V. Rodgers 
 
 
 410 
 
 Bucklen v. Cushman 
 
 
 382 
 
 Buckley v. Cunningham 
 
 
 616 
 
 Bucknam v. Bucknam 
 
 
 684 
 
 Buckner v. Warren 
 
 
 502 
 
 Buel V. Buel 
 
 
 563 
 
 Buell V. Cook 141, 
 
 142 
 
 145 
 
 Buerger v. Boyd 
 
 675 
 
 677 
 
 Buesching v. St. Louis &c. 
 
 Co. 
 
 603 
 
 Buffalo, In re 
 
 
 725 
 
 Buffalo Co. Nat. Bank v. 
 
 Han 
 
 
 sen 
 
 
 540 
 
 Buffum V. Deane 
 
 
 668 
 
 Buhl V. Kenyon 
 
 
 151 
 
 Bulkley v. Devine 
 
 
 99 
 
 Bull V. Follett 
 
 
 319 
 
 Bullard v. Johnson 
 
 
 422 
 
 Bullen V. Denning 
 
 
 63 
 
 Bullock V. Dommitt 
 
 
 392 
 
 V. Grinstead 
 
 
 375 
 
 Bunker v. Pines 
 
 
 319 
 
 Bunton v. Richardson 
 
 
 227 
 
 Burbank v. Dyer 
 
 
 236 
 
 Burden v. Knight 159 
 V. Thayer 421, 422, 667, 670 
 
 Burdick v. Cheadle 579, 595 
 
 Burgess v. Rice 682 
 
 Burhans v. Van Zandt 413, 690 
 
 Burk V. Hollis 716 
 
 Burke v. Tindale 121 
 
 Burkhard v. Mitchell 201, 202 
 
 Burkhardt v. Yates 78 
 
 Burkhart v. Tucker 29 
 
 Burkitt V. Harper 378 
 
 Burks V. Bragg 588 
 
 Burnes v. Fuchs 404 
 
 V. McCubbin 487 
 Burnett v. Lynch 
 
 80, 318, 319, 411, 449, 451 
 
 V. Rich 682 
 
 V. Thompson 163 
 
 Burnham v. Hubbard 448 
 
 V. Roberts 652 
 
 Burns v. McDonald 597 
 
 V. Nash 562 
 
 Burr V. Spencer 166 
 
 V. Stenton 349, 350, 351 
 
 Burris v. Jackson 118 
 
 Burt V. French 513 
 
 V. Merchants' Ins, Co. 680 
 
 Burton v. Barclay 458 
 
 V. Scherpf 44 
 
 Bush V. Cole 369 
 
 V. Rawlins 135 
 
 Buschman v. Codd 129 
 
 V. Wilson 679 
 
 Bussman v. Ganster 59, 675, 676 
 
 Buswell V. Marshall 73 
 
 Butler V. Baker 656 
 
 V. Cowles 651 
 
 V. Manny 323, 324 
 
 V. Page 715 
 
 V. Powis 77, IGO 
 
 V. Rice 21 
 
 Butterfield v. Baker 53 
 
 Butts V. Fox 256 
 
 Buxbaum v. Dunham 423 
 
 Byrane v. Rogers 420, 503, 504 
 
 Byrne v. Beeson 691 
 
 Byington v. Simpson 158 
 
 Byrd v. Chase 650 
 
 Byrne v. Van Hoesen 90 
 
 Cade V. Brownlee 171 
 
 Cadwallader v. Lovece 33 
 
 Cage V. Paxlins 67 
 
 Cain V. Ginun 702 
 
 Cairns v. Chabert 413, 690 
 Cairo &c. R. Co. v. Wiggins Ferry 
 
 Co. 203, 205 
 
 Calderwood v. Brooks 254, 499 
 
 V. Pyser 707
 
 XXXYlll 
 
 TABLE t 
 
 
 {References a 
 
 Caldwell v. Center 
 
 11 
 
 V. Custard 
 
 567 
 
 V. Harris 
 
 682 
 
 V. Moore 
 
 413 
 
 V. Slade 
 
 599 
 
 V. Smith 
 
 682 
 
 Caley v. Portland 
 
 464 
 
 V. Rogers 
 
 519 
 
 California &c. Co. v. Armstrong 630 
 California Ann. Conf. v. Seitz 
 
 377, 379 
 
 Callaghan v. Hawks 322 
 
 Callahan v. Loughran 588, 596 
 
 Callan v. McDaniel 331 
 
 Calvert v. Rice 635 
 
 Camarillo v. Fenlon 702 
 
 Cameron v. Little 661, 667 
 
 Camley v. Stanfield 704 
 
 Camp V. Camp 79, 696 
 
 V. Scott 486, 497 
 
 Campau v. Lafferty 75, 126 
 
 V. Mitchell 209, 554 
 
 V. Shaw 90 
 
 Campbell v. Campbell 688 
 
 V. Davis 709 
 
 V. Fetterman 682 
 
 V. Hampton 682 
 
 V. Nixon 501 
 
 V. Procter 190, 474a, 475 
 
 V. Shipley 484, 696 
 
 V. Shrum 319, 463 
 
 V. Stetson 659 
 
 Canale v. Copello 438, 442 
 
 Candler v. Mitchell 5, 7, 267, 274 
 
 Cannan v. Hartley 548 
 
 Canning v. Fibush 177, 255 
 
 Cannon V. Barry 632, 636, 637, 638 
 
 v. Copeland 726 
 
 V. Hatcher 641 
 
 V. Ryan 267 
 
 V. Wilbur 368, 369, 485 
 
 Caperton v. Stege 555, 719 
 
 Capital Brewing Co. v. Crosbie 367 
 
 Cardigan v. Armitage 63 
 
 Carey v. Richards 155 
 
 Cargar v. Fee 229, 288 
 
 Cargil V. Thompson 459 
 
 Carhart v. French 63 
 
 V. Ryder 128 
 
 Carleton v. Redington 37, 604 
 
 Carley v. Lewis 328, 331, 447 
 
 Carlin v. Ritter 628, 716, 718, 721 
 
 Carling v Purcell 154 
 
 Carlton v. Williams 87 
 
 Carman v. Mosier 116 
 
 Carnegie v. Morrison 462 
 
 Carnes v. Hersey 418 
 
 Carney v. Mosher 154 
 
 Carpenter v. Colins 191 
 
 v. GrifRn 10 
 
 V. Jones . 547, 567 
 
 Carpenter v. Parker 707 
 
 V. Pocasset Manuf. Co. 454 
 
 V. Providence &c. Ins. Co. 398 
 
 v. Thompson 688 
 
 v. United States 29 
 
 Carr v. Dodge 55, 131 
 
 V. Ellison 343 
 
 Carraher v. Bell 498 
 
 Carroll v. Ballanee 428 
 
 V. Rigney 640, 641 
 
 V. St. John's &c. Soc. 78 
 
 Carson v. Arvantes 540 
 
 v. Baker 32 
 
 V. Blazer 569 
 
 v. Broady 682 
 
 V. Crigler 703 
 
 V. Godley 576, 613 
 
 Carstairs v. Taylor 612 
 
 Carter v. Burr 669 
 
 v. Carter 413 
 
 V. Cummings 675 
 
 V. George 630 
 
 V. Hammett 440, 458, 461 
 
 V. Harlan 37, 45 
 
 V. Lacy 369 
 
 V. Scargill 324 
 
 V. Tippins 685 
 
 V. Youngs 413, 637 
 
 Carver v. Gough 726 
 
 Carey-Lombard Lumber Co. v. 
 
 Jones 378 
 
 Cary v. Daniels 644 
 
 V. Thompson 101 
 Cary Hardware Co. v. McCarty 
 
 18, 36, 42 
 
 Casey v. Gregory 163, 703, 704 
 
 V. Haurick 682, 689 
 
 V. King 168, 227 
 
 Cassilly v. Rhodes 572 
 
 Castleman v. DuVal 661 
 
 Castro V. Gaffey 79 
 
 Caswell V. Districh 48, 50 
 
 Gate V. Blodgett 580 
 
 Catlin V. Hayden 640 
 
 V. Washburn 257 
 
 V. Wright 499 
 
 Cavanaugh v. Clinch 235, 555 
 
 Cavis V. McClary 421 
 
 Cayuga R. Co. v. Niles 39 
 
 Center v. Davis 605 
 
 V. McQuesten 462 
 
 Central Mills v. Hart 1, 2, 3, 40 
 
 Central Railroad v. English 604 
 
 v. English 642 
 
 Cesar v. Karutz 584 
 
 Chadbourn v. Rahilly 65 
 
 Chadbourne v. Straw 640 
 
 Chadwick v. Marsden 63 
 
 V. Parker 503, 513 
 
 Chalfin V. Malone 3 
 
 Chalker v. Chalker 485
 
 TABLE OF CASES. 
 
 XXXIX 
 
 [References are to Sections.'] 
 
 Chalmers v. Smith 627, 628 
 
 Chamberlain v. CoUinson 164 
 
 V. Godfrey 675, 677 
 
 Chamberlin v. Brown 494 
 
 V. Donahue 
 
 3, 5, 257, 474a, 654, 655 
 
 V. Godfrey 365 
 
 Chambers v. Pleak 689 
 
 V. Ross 654 
 
 Chandler v. Kent 71 
 
 V. McGinning 340, 341, 503 
 
 V. Pittsburgh Glass Co. 422 
 
 Chapel V. Hull 631 
 
 Chapin v. Billings 125 
 
 V. Dobson 130, 131 
 
 V. Foss 28 
 
 Chapman v. Bluck 143, 144 
 
 V. Cawrey 561 
 
 V. Dunwell 70 
 
 V. Eames 50 
 
 V. Gray 167, 171 
 
 V. Harney 503 
 
 V. Hart 171 
 
 V. Kirby 502, 503, 513 
 
 V. McGrew 423, 430, 496 
 
 V. Tiffany 258 
 
 V. Towner 146, 251 
 
 Charleston &c. R. Co. v. Hughes 711 
 
 Charsley v. Jones 578 
 
 Charter Oak L. Ins. Co. v. Cum- 
 
 mings 2 
 
 Chase v. Barrett 50 
 
 V. Hazleton 625, 626, 636 
 
 V. McDonnell 49 
 
 Chatard v. O'Donovan 20 
 
 Chateau v. Singla 122 
 
 Chatterton v. Fox 364, 369, 370 
 
 Chauntler v. Robinson 612 
 
 Cheairs v. Coats 365, 667, 668 
 
 Cheatham v. Plinke 719 
 
 Cheek v. Waldrum 88 
 
 Cheetham v. Hampson 600 
 
 Cheever v. Pearson 6, 36, 42, 112 
 Cheney v. Bonnell 483 
 
 V. Newberry 146 
 
 Cherokee Strip &c. Asso. v. Cass 
 
 &c. Co. 7 
 
 Cherry v. Stein 381 
 
 Chesebrough v. Pingree 58, 102 
 
 Cheshire v. Barrett 92 
 
 Chesley v. Frost 62 
 
 Chessman v. Whittemore 541 
 
 Chestu V. Powell 578 
 
 Chestnut v. Tyson 350, 361 
 
 Cheuvront v. Bee 410 
 
 Chew V. Lucas 369 
 
 Chicago V. Peck 206 
 
 Chicago &c. Co v. Browne 381 
 
 Chicago &c. R. Co. v. Linard 640 
 V. Perkins 205, 255 
 
 Chicago Attachment Co. v. Davis 
 
 &c. Co. 440, 441, 456, 465 
 
 Chicago Warehouse Co. v. Illi- 
 nois &c. Co. 360 
 Chighizola v. Le Baron 93 
 Childers v. Lee 150 
 V. Talbott 149, 150, 153 
 Childs V. Clark 430 
 V. Hurd 716, 721 
 V. Kansas City &c. R. Co. 625 
 Chilton V. Niblett 29, 30 
 Chipman v. Emeric 372, 471, 502 
 Chowning v. Stanfield 93 
 Chretien v. Doney 154, 337 
 Christensen v. Pacific Coast &c. 
 
 Co. 36 
 
 Christine v. Whitehill 350 
 
 Christopher v. Austin 324, 365 
 
 V. National &c. Co. 157 
 
 Christy v. Tancred 227 
 
 Chung Yon v. Hop Cheng 
 
 17, 276, 308 
 Church V. Brown 431, 464 
 
 Church Wardens v. Smith 
 
 332, 334, 462 
 Churchill v. Gronewig 539 
 
 V. Lammers 540, 553 
 
 City Council v. Moorhead 588 
 
 City of London v. Mitford 339 
 
 City of Providence v. St. John's 
 
 Lodge 346 
 
 City Power Co. v. Fergus Falls 
 
 &c. Co. 361 
 
 Claflin V. Carpenter 36, 38 
 
 Clancy v. Byrne 595 
 
 Clapham v. Moyle 319 
 
 Clapp V. Noble 267 
 
 V. Paine 255 
 
 V. Stoughton 88 
 
 Claremont v. Carleton 109 
 
 Clark v. Babcock 574, 588 
 
 V. Banks 566, 569 
 
 v. Barlow 666 
 
 V. Barnes 111 
 
 V. Butt 367, 367a 
 
 V. Clark 87, 138, 385, 654, 655 
 
 V. Coolidge 418 
 
 V. Everly 530 
 
 V. Ford 673 
 
 v. Harvey 570 
 
 V. Herring 433 
 
 v. Holden 634, 635 
 
 v. Hume 461 
 
 V. Jones 495 
 
 V. Keliher 263, 272 
 
 V. Middlesworth 637 
 
 V. Midland &c. Co. 675 
 
 V. Rhoads 114, 115, 169 
 
 V. Vannort 20 
 
 Clarke v. Brookfield 485
 
 xl 
 
 TABLE OF CASES. 
 
 [References are to Sections.'] 
 
 Clarke v. Byne 
 
 V. Cobb 
 
 V. Camnings 
 
 V. Merrill 
 
 V. Samson 
 
 V. Spaulding 
 
 V. Thatcher 
 Clason V. Bailey 
 Clator V. Otto 
 Clayton v. Blakey 
 Clemence v. Steere 
 Clemens v. Broomfield 
 
 V. Murphy 
 Clemenston v. Gleason 
 Clement v. Durgin 
 
 V. Gould 
 Clemm v. Wilcox 
 Clemson v. Trammell 
 Clenighan v. McFarland 
 Cleveland v. Bryant 
 Cleveland &c. R. Co. v, 
 
 703 
 
 52, 53, 422 
 
 489, 635 
 
 337, 340 
 
 321 
 
 673 
 
 219, 642 
 
 387 
 
 504 
 
 148, 180, 217 
 
 631, 632, 635 
 
 75, 543 
 
 717 
 
 386 
 
 45 
 
 361 
 
 682, 688 
 
 393 
 
 133 
 
 140 
 
 Mitchell 
 
 331, 371, 438 
 
 V. Wood 448 
 
 Cleves V. Willoughby 577, 578 
 
 Clifford v. Atlantic Cotton Mills 
 
 601, 602 
 
 V. Gressinger 34 
 
 Clift V. Stockton 163 
 
 Clifton V. Montague 404, 574, 591 
 Cline V. Black 392 
 
 Clinton &c. Co. v. Gardner 
 
 201, 205, 206, 209 
 Clinton Wire Cloth Co. v. Gard- 
 ner 206 
 Cluett V. Sheppard 104 
 Clun's Case 661, 667 
 Clyne v. Helmes 574, 576, 585 
 Coale v. Hannibal &c. R. Co. 627 
 Coan V. Mole 180, 197 
 Coats V. Chaplin 156 
 Coatsworth v. Schoellkopf 375 
 Cobb V. Arnold 
 
 V. Lavalle 
 
 V. Stokes 
 Coburn v. Goodall 
 
 V. Palmer 
 Cochran v. Ocean Dry Dock Co. 
 
 V. Pew 
 
 1, 
 
 Cochrane v. 
 
 686 
 109 
 255, 564 
 332, 461 
 685 
 105 
 495 
 
 v. McCleary 
 
 V. Tuttle 
 Cocker v. Cowper 
 Cocking V. Ward 
 Cockson V. Cock 
 Codman v. Hall 
 
 V. Jenkins 
 
 V. Johnson 
 Cody V. Quarterman 
 Coe V. Clay 
 
 V. Hobby 
 
 Justice Min. Co. 
 
 137a, 138 
 
 63 
 
 24 
 
 44, 45 
 
 200 
 
 331 
 
 75, 121, 416 
 
 652 
 415 
 149 
 367 
 543 
 
 Coe V. Wilson 
 
 Coffin V. City of Brooklyn 
 
 V. Lunt 
 
 V. Talman 
 Cofran v. Shepard 
 Coggs V. Bernard 
 Cohen v. Barrett 
 
 V. Dupont 
 
 V. Habenicht 
 
 V. Kyler 654, 
 
 Cohn V. Hill 
 
 V. Norton 367a, 369, 
 
 Cohoon V. Kineon 
 Coke V. Gutkese 
 Colburn v. Morrill 
 Colclough v. Carpeles 
 
 113, 141, 142, 
 Cole V. McKey 
 
 v. Maxfield 
 
 v. Potts 
 
 V. Wright 
 Colegrave v. Dias Santos 
 Coleman v. Mabberly 
 Coles v. Celluloid Mfg. Co. 675, 
 
 v. Coles 
 
 V. Peck 
 Colhoun V. Wilson 
 Collamer v. Kelley 
 Collamore v. Gillis 
 Collier v. Carlisle 
 
 V. Cunningham 
 
 V. Hyatt 
 
 V. Pierce 
 
 V. Sharpe 
 Collins V. Canty 
 
 V. Hall 
 
 V. Hasbrouck 
 
 V. Karatopsky 
 
 V. Lewis 
 
 V. Moore 
 
 V. Whigham 
 Collins Mfg. Co. v. Marcy 42, 
 Collyer v. Collyer 
 Colton V. Gorham 
 Columbian Oil Co. v. Blake 
 Combes v. Cadmus 
 Combs v. Midland Trans. Co. 
 Commagere v. Brown 
 Commercial Bank v. Pritehard 
 Commonwealth v. Chesapeake 
 &c. R. Co. 
 
 v. Cortner 119, 
 
 V. Dudley 
 
 v. Franklin Ins. Co. 
 
 V. Harrington 
 
 V. Haley 556, 
 
 V. Locke 
 
 V. Shattuck 
 
 V. Smith 
 
 V. Switzer 
 
 V. Weatherhead 
 
 112, 587, 
 
 496, 
 
 355, 365, 
 
 357, 
 
 53 
 351 
 215 
 332 
 
 189 
 596- 
 562 
 
 360 
 410 
 715 
 391 
 37a 
 651 
 582 
 365 
 
 143 
 585 
 694 
 16a 
 152 
 716 
 542 
 681 
 
 86 
 34& 
 133 
 44& 
 712 
 709 
 493 
 600 
 359 
 
 34 
 271 
 66& 
 497 
 669 
 361 
 427 
 
 34 
 
 382 
 
 3 
 
 44g 
 
 87 
 637 
 
 58 
 123 
 163 
 
 163 
 
 648 
 557 
 461 
 122 
 559 
 
 12a 
 
 557 
 9 
 
 610 
 9
 
 TABLE OF CASES, 
 
 xli 
 
 [References are to Sections.1 
 
 Commonwealth v. Welcome 
 
 V. Wentworth 
 Comstock V. Cavanaugh 
 
 V. Hitt 
 Conant v. Brackett 
 Condon v. Barr 
 
 V. Brockway 
 
 V. Sprigg 
 Cone V. Corse 
 Cones V. Barnes 
 
 V. Carter 
 
 V. Parker 
 Coney v. Brunswick &c. Co. 
 Congdon v. Brown 
 
 V. Cook 
 Conger v. Duryee 
 
 V. Transportation Co. 
 
 V. Weaver 
 
 479 
 120 
 421 
 463 
 378 
 227 
 203, 205 
 604 
 91 
 447 
 358 
 329 
 644 
 262 
 558 
 471, 497 
 495 
 369 
 
 Congregational Soc. v. Fleming 635 
 
 V. Walker 682 
 
 Conkling v. Tuttle 296, 404, 652 
 
 Conley v. Johnson 136 
 
 Connell v. Female &c. Asylum 412 
 
 V. Richmond 48, 54 
 
 Connelly v. Doe 541 
 
 Conner v. Coffin 573 
 
 V. Jones 474a, 480 
 
 V. Shepherd 635 
 
 Connor v. Bradley 484, 503 
 
 Conrad v. Morehead 349, 488, 631 
 
 V. Saginaw &c. Co. 725 
 
 Conrad Seipp &c. Co. v. Hart 360 
 
 Consolidated Coal Co. v. Peers 
 
 36, 322, 455, 456, 463 
 
 V. Savitz 625 
 
 V. Schaefer 275, 486 
 
 V. Schmisseur 384 
 
 Constantine v. Wake 328, 445, 648 
 
 Consumers' Ice Co. v. Bixler 
 
 447, 462 
 Conway v. Starkweather 206, 
 
 207, 209 
 5, 699 
 675, 678 
 675, 677 
 703, 706 
 627 
 
 Conwell V. Mann 
 Coogan V. Parker 
 Cook V. Anderson 
 
 V. Basom 
 
 V. Champlain Transp. Co 
 
 V. Cook 
 V. Creswell 
 V. Harris 
 V. Humber 
 V. Jones 
 V. Norton 
 
 182, 190, 705 
 
 262, 272, 682 
 
 458 
 
 23 
 
 344, 446 
 
 220 
 
 V. Sanitary Dist. &c. 718 
 
 V. Soule 410, 594, 673 
 
 V. South Park Comm'rs 7 
 
 V. Stearns 36, 37 
 
 Cook County &c. Co. v. Labahn 
 Brick Co. 69 
 
 Cooke V. Brice 482. 504 
 
 V. England 400, 410 
 
 Cooke V. Norris 215 
 
 V. Wise 666 
 
 Coomber v. Howard 661 
 
 Coombs V. Jordan 711 
 
 Coomler v. Hefner 221, 236, 288 
 
 Coon V. Brickett 497, 498, 503, 523 
 
 Cooney v. Murray 133 
 
 Cooper V. Adams 190 
 
 V. Blandy 697 
 
 V. Bramel 654 
 
 V. Cooper 87 
 
 V. Joy 340, 342 
 
 V. McGrew 54 
 
 V. Smith 689 
 
 V. Sunderland 562 
 
 Coor V. Smith 572 
 
 Copeland v. Goldsmith 663 
 
 V. Stephens 461 
 
 V. Parker 467 
 
 Corbett v. Cochrane 232, 233 
 
 Corby v. Brill &c. Co. 299 
 
 V. McSpadden 112, 170 
 
 Cordes v. Miller 399 
 
 Cordeviolle v. Redon 465 
 
 Corey V. Bishop 573 
 
 V. Mann 588 
 
 V. Smalley 164 
 
 Corle V. Monkhouse 569, 570, 571 
 
 Cornell v. Dean 50 
 
 Cornfoot v. Fowke 580 
 
 Cornish v. Searell 697 
 
 Corrigan v. Chicago 362, 680, 703, 
 
 706 
 
 Corson v. Berson 219 
 
 V. Mulvany 387 
 
 Couch V. Ingersoll 323 
 
 V. McKeilar 655 
 
 Coudert v. Cohn 199, 256 
 
 Coughanour v. Bloodgood 707 
 
 Coulson V. Whiting 580, 584 
 
 Coulter V. Norton 352 
 
 Coupe V. Piatt 614, 617 
 
 Coupland v. Hardingham 604 
 
 Courcier v. Graham 72 
 
 Courne v. Hewes 34 
 
 Cowan V. Henika 195, 514 
 
 V. Radford Iron Co. 174 
 
 Cowell V. Lumley 675, 676 
 
 V. Springs Co. 382 
 
 Cowen V. Sunderland 574, 576, 581 
 
 Cowles V. Kidder 37 
 
 Coy V. Downie 675 
 
 Coyne v. Feiner 141 
 
 Cozens v. Stevenson 366 
 
 Crabtree v. Hagenbaugh 322 
 
 Craig V. Dale 569 
 V. Summers 417, 436, 446, 494 
 
 Cram v. Thompson 152 
 
 Cramer v. Groseclose 641 
 
 Crandall v. Sorg 378, 513 
 
 Crane v, Andrews 254
 
 slii 
 
 TABLE OF CASES. 
 
 [References are to Sections.1 
 
 Crane v. Batten 334 
 
 V. Brigham 725 
 
 V. Hardman 666 
 
 V. Patton 38 
 
 Crawford v. Armstrong 663 
 
 V. Chapman 658 
 
 V. Jones 5, 363 
 
 V. Longstreet 74 
 
 V. Morris 98, 192 
 
 Creech v. Crockett 221 
 
 Creekmur v. Creekmur 695 
 
 Creel v. Kirkham 51 
 
 Creigh v. Heuson 682 
 
 Crelghton v. Sanders 152, 159 
 
 Crentz v. Heil 637 
 
 Crescent City &c. Co. v. Simpson 74 
 
 Cressler v. Williams 12, 288, 701 
 
 Creveling v. West End Iron Co. 495 
 
 Crews V. Pendleton 572 
 
 Cripps V. Blank 227 
 
 Critchfield v. Remaley 201, 204, 
 
 251, 261 
 
 Croade v. Ingraham 333 
 
 Crocker v. Cunningham 54 
 
 Crockett v. Althouse 687, 702 
 
 V. Crockett 636, 638 
 
 Croft V. Lumley 497 
 
 Cromie v. Hoover 716 
 
 Crommelin v. Thiess 201, 202, 
 
 210, 356, 365, 431, 551 
 
 Cronin v. Watkins 329, 377 
 
 Crooke v. Andrews 565 
 
 Crookston Co. v. Marshall 70 
 
 Crosby v. Home & Danz Co. 3 
 
 V. Loop 658, 668 
 
 Crosdale v. Lanigan 37 
 
 Cross V. Campbell 182 
 
 V. Freeman 84 
 
 V. McClenahan 564 
 
 V. Upson 442 
 
 Crossley v. Maycock 138 
 
 Crossthwaite v. Caldwell 365 
 
 Croswell v. Crane 152, 661 
 
 Crouch V. Fowle 321, 349, 350 
 
 V. Wabash &c. R. Co. 497 
 
 Crow V. Cann 566 
 
 V. Hildreth 141 
 
 Crowe V. Riley 331, 431 
 
 V. Wilson 638, 639 
 
 Cruger v. McLaury 525 
 
 Crusoe v. Bugby 431, 446, 467 
 
 Culbreth v. Smith 168, 171 
 
 Culton V. Gilchrist 146 
 
 Culver V. Hill 672 
 
 V. Kingsley 620 
 
 Culverhouse v. Worts 422 
 
 Cummings v. Perry 104 
 
 Cunning v. Tittabawassee Boom 
 
 Co. 683 
 
 Cunningham v. Baxley 171 
 
 v. Cambridge Sav. Bank 14 
 
 Cunningham v. Holton 12, 190 
 
 V. Horton 293, 558, 647 
 
 v. Hurter 599 
 
 V. Pattee 86, 330, 343 
 
 Curl V. Lowell 182 
 
 Currey v. Davis 47, 53 
 
 Currier v. Barker 260 
 
 V. Earl 185, 474a 
 
 v. Perley 192, 193, 195, 244, 251, 
 
 259, 302 
 
 Curry v. Schmidt 715 
 
 Curtis V. Aspinwall 139 
 
 V. Cash 50 
 
 V. Galvin 186, 228, 558, 559 
 
 V. La Grande &c. Water Co. 37 
 
 v. Pierce 415 
 
 V. Smith 690 
 
 V. Spitty 460 
 
 V. Treat 2 
 
 v. Wheeler 446 
 
 Curtiss V. Hoyt 646 
 
 Curtner v. Lyndon 48 
 
 Cvishing v. Kenfield 644 
 
 Cutter V. Hamlen 583, 584 
 
 V. Powell 667 
 
 D 
 
 Dahm v. Barlow 474a, 475, 476, 497 
 
 Dakin v. Allen 30, 655 
 
 v. Goddard 654 
 
 V. Williams 471 
 
 Dalay v. Savage 600, 604, 607 
 
 Dale v. Southern R. Co. 642 
 
 Daley v. Quick 579 
 
 Dalton V. Laudahn 2, 651, 652, 661 
 
 Daly V. Wise 126 
 
 Damainville v. Mann 458, 669 
 
 Damb v. Hoffman 453 
 
 Dame v. Dame 713 
 
 Danforth v. Sargent 226 
 
 V. Stratton 566 
 
 Daniels v. Brown 54 
 
 V. Cushman 40 
 
 V. Edwards 565 
 
 V. Pond 488, 573, 627 
 
 V. Richardson 669 
 
 Dann v. Spurrier 340 
 
 Darby v. Anderson 682 
 
 Darcey v. Steger 414 
 
 Darcy v. Askwith 625, 631 
 
 D'Arcy v. Martyn 267, 271 
 
 Dare v. Boylston 502 
 
 Darling v. Hoban 339 
 
 V. Kelly 51, 53 
 
 Darmstaetter v. Hoffman 328, 451, 
 
 455 
 D'Arras v. Keyser 387 
 
 Dart V. Hercules 726 
 
 Dartmouth College v. Clough 
 
 445, 446, 458, 650, 659
 
 TABLE OF CASES. 
 
 xliii 
 
 IBeferences are to Sections.'] 
 
 Dartual v. Morgan 
 Dasher v. Ellis 
 Dassance v. Cold 
 Dater v. Earl 
 Dausch V. Crane 
 Davenant v. Bishop 
 Davenish v. Moffatt 
 Davenport's Case 
 Davenport v. Magoon 
 
 V. United States 
 David v. Ryan 
 David Stevenson &c. Co. v. 
 
 bertson 
 Davidson v. Crump Mfg. Co 
 
 V. Ellmaker 
 
 V. Wallingford 
 Davies v. Baldwin 
 
 V. Davies 
 
 V. Evans 
 Daviess v. Myers 
 Davis V. Brocklebank 
 
 V. Burrell 
 
 V. Cincinnati 
 
 V. Clancy 
 
 V. Byton 
 
 V. George 
 
 V. Gillian 
 
 V. Hemenway 
 
 V. Jewett 
 
 V. Lyman 
 
 V. McGrew 
 
 V. Morris 
 
 V. Moss 
 
 V. Murphy 
 
 V. Nash 
 
 V. Pollock 
 
 V. Schweikert 
 
 V. Smith 
 
 V. Taylors Co 
 
 V. Thompson 
 
 577, 
 
 137a, 
 192, 239, 
 
 V. Townsend 
 
 V. Watts 
 
 V. Wiley 
 
 V. Williams 
 Davison v. Gent 
 Dawson v. Linton 
 Day V. Essex Co. Bank 
 
 V. Greenebaum 
 
 V. McAllister 
 
 V. Swackhamer 
 Dayton v. Craik 
 
 V. Van Doozer 
 Dean v. Pall 
 
 V. Roesler 
 
 V. Walker 
 Dean &c. v. Pierce 
 Deane v. Caldwell 
 
 v. Hutchinson 
 Dearlove v. Herrington 
 Deaver v. Randall 
 
 650 
 695 
 663 
 121 
 709 
 415 
 256 
 429 
 632 
 629 
 392, 399 
 Cu- 
 
 83 
 
 719 
 
 83 
 
 427 
 
 242 
 
 625 
 
 474a 
 
 689 
 
 570 
 
 420 
 
 411 
 
 640 
 
 466 
 
 675, 676 
 
 635, 636 
 
 19, 26 
 
 644 
 
 319 
 
 698 
 
 456 
 
 716, 725 
 
 270 
 
 626, 641 
 
 153 
 
 388 
 
 626 
 
 343 
 
 148, 185, 
 
 254, 570 
 
 36 
 
 3 
 
 324 
 
 20, 682 
 
 543 
 
 413 
 
 323 
 
 442 
 
 61 
 
 334 
 
 538, 539 
 
 493 
 
 114 
 
 369 
 
 463, 660 
 
 654 
 
 448 
 
 726 
 
 561 
 
 214, 564 
 
 Deaver v. Rice 53 
 
 DeBow v. Colfax 570 
 
 Decker v. Adams 303 
 
 V. McManus 254 
 
 DeClercq v. Barber &c. Co. 415 
 DeCoursey v. Guarantee Trust 
 
 &c. Co. 668 
 
 Deegan v. Neville 647 
 De Forest v. Byrne 331, 382, 383, 384 
 
 De Givesville v. Legg 417 
 
 V. Stolle 273 
 
 Deglow V. Meyer 464, 465 
 
 Deishler v. Golbaugh 374 
 
 De Jarnette v. McDaniel 695 
 
 De Lancey v. Ganong 481, 482, 486 
 
 Delaney v. Flanagan 242 
 
 V. Root 51 
 
 Delano v. Montague 207, 227 
 
 Delashman v. Berry 339, 340 
 
 Deller v. HofEerberth 599 
 Demarest v. Willard 
 
 331, 424, 425, 430, 658 
 
 Demartini v. Anderson 122 
 
 De Medina v. Poison 200 
 
 Demi v. Bossier 569 
 
 De Mott V. Hagerman 48 
 
 Den V. Alexander 446, 699, 700 
 
 V. Ashmore 703 
 
 V. Blair 251, 257 
 
 V. Craig 502 
 
 V. Davis 696 
 
 V. Drake 174, 251, 303 
 
 v. Hardenbergh 87 
 
 V. McKnight 482 
 
 V. Murray 700 
 
 V. Post 467, 487 
 
 V. Snowhill 251, 303 
 
 V. Westbrook 29 
 
 Dendy v. Nicholl 497 
 
 Dengler v. Michelssen 367, 456 
 
 Denison v. Wertz 540 
 
 Denn v. Barnard 111 
 
 v. Rawlins 183 
 
 Dennett v. Penobscot &c. Co. 655 
 
 Dennis v. Dennis 91 
 
 Dennison v. Grove 126, 128, 674 
 
 V. Lee 666 
 
 V. Read 326 
 
 Denny v. Marksbury 371 
 
 Denton v. Strickland 9, 51 
 
 De Pere Co. v. Reynen 437, 654 
 
 De Peyster v. Michael 649 
 
 Dermott v. Jones 319, 392 
 
 De Ronde v. Olmsted 83 
 
 Derrick v. Luddy 699, 701 
 
 De Rutte v. Muldrow 387 
 
 Desloge v. Pearce 37. 41 
 
 Des Moines R. Co. v. Wabash 
 
 R. Co. 384 
 Despard v. Walbridge 
 
 202, 267. 555, 703
 
 xliv 
 
 TABLE OF CASES. 
 
 {References are to Sections.'] 
 
 De Taslet v. Crousellat 
 
 
 
 389 
 
 Doe V. Bateman 
 
 
 446 
 
 Detroit Savings Bank 
 
 V. 
 
 Bel- 
 
 
 V. 
 
 Bell 
 
 148, 199, 
 
 217 
 
 lamy 
 
 
 
 261 
 
 V. 
 
 Benjamin 
 
 144, 
 
 146 
 
 Deutsch V. Abeles 
 
 
 
 607 
 
 V. 
 
 Bevan 
 
 
 446 
 
 Devacht v. Newsam 
 
 
 
 703 
 
 V. 
 
 Biggs 
 
 
 340 
 
 Devine v. Lord 
 
 
 
 221 
 
 V. 
 
 Birch 
 
 
 495 
 
 De Vore v. Kemp 
 
 
 
 53 
 
 V. 
 
 Bliss 
 
 470, 473, 
 
 500 
 
 Dewey v. Payne 
 
 
 151, 
 
 441 
 
 V. 
 
 Bond 
 
 
 486 
 
 De Witt V. Berry 
 
 
 
 575 
 
 V. 
 
 Brawn 
 
 
 444 
 
 V. Harvey 
 
 
 
 86 
 
 V. 
 
 Brown 
 
 421, 
 
 697 
 
 V. Pierson 
 
 
 
 360 
 
 V. 
 
 Bucknell 
 
 
 25 
 
 De Wolf V. Martin 
 
 
 
 700 
 
 V. 
 
 Burt 
 
 101, 
 
 110 
 
 Dexter v. Manley 
 
 63, 
 
 353, 
 
 369 
 
 V. 
 
 Carter 
 
 
 466 
 
 V. Phillips 
 
 
 18&, 
 
 667 
 
 V. 
 
 Chamberlaine 
 
 
 30 
 
 Deyo V. Bleakley 
 
 
 
 119 
 
 V. 
 
 Chaplin 
 
 
 269 
 
 Deyve v. Jamison 
 
 
 
 496 
 
 V. 
 
 Clarke 
 
 
 466 
 
 De Young v. Buchanan 
 
 
 
 227 
 
 V. 
 
 Cooper 
 
 
 480 
 
 Diamond v. Harris 
 
 
 
 675 
 
 V. 
 
 Crago 
 
 
 198 
 
 Dickey v. McCullough 
 
 
 
 471 
 
 V. 
 
 David 
 
 
 466 
 
 Dickinson v. Goodspeed 
 
 
 
 647 
 
 V. 
 
 Day 
 
 
 15 
 
 Dickinson Co. v. Fitterling 
 
 
 442 
 
 V. 
 
 Derry 
 
 
 20 
 
 Dickson v. Moffat 
 
 
 F 
 
 , 11 
 
 V. 
 
 Dixon 
 
 
 340 
 
 Diehl V. Lee 
 
 
 
 548 
 
 V. 
 
 Dobell 
 
 
 199 
 
 Dieters v. St. Paul Gaslight Co. 
 
 624 
 
 V. 
 
 Dunbar 
 
 
 272 
 
 Dietz V. Schmidt 
 
 
 
 453 
 
 V. 
 
 Edwards 
 
 
 703 
 
 Diffenderfer v. St. Louis 
 
 Pub. 
 
 
 V. 
 
 Evans 
 
 
 85 
 
 Schools 
 
 
 
 343 
 
 V. 
 
 Flynn 
 
 
 476 
 
 Digby v. Atkinson 
 
 
 202, 
 
 203 
 
 V. 
 
 Francis 
 
 
 697 
 
 Diggle V. Boulden 
 
 
 
 29 
 
 V. 
 
 Fuchan 
 
 
 484 
 
 Dike V. Greene 
 
 
 
 346 
 
 V. 
 
 Geekie 
 
 
 213 
 
 Diller v. Roberts 
 
 
 
 202 
 
 V. 
 
 Gladwin 
 
 
 500 
 
 Dillon V. Crook 
 
 
 
 37 
 
 V. 
 
 Godwin 
 
 
 486 
 
 Dills V. Stobie 
 
 
 540, 
 
 545 
 
 V. 
 
 Goldwin 
 
 
 265 
 
 Dimock v. Van Bergen 
 
 
 
 554 
 
 V. 
 
 Gray 
 
 
 272 
 
 Dingley v. Buffum 190, 
 
 641, 
 
 716 
 
 V. 
 
 Gregory 
 
 
 225 
 
 Dircks v. Brant 
 
 
 
 569 
 
 V. 
 
 Hawke 
 
 
 466 
 
 Disbrow v. Jones 
 
 
 
 164 
 
 V. 
 
 Hazell 
 
 
 253 
 
 v. Wilkins 
 
 
 
 137a 
 
 V. 
 
 Hogg 
 
 
 486 
 
 Disdale v. lies 
 
 
 
 186 
 
 V. 
 
 Hull 
 
 
 257 
 
 Ditch V. Vollhardt 
 
 
 
 666 
 
 V. 
 
 Jackson 
 
 
 183 
 
 Diver v. Diver 
 
 
 
 87 
 
 V. 
 
 Jones 
 
 444, 471, 
 
 632 
 
 Dix V. Atkins 
 
 
 
 5 
 
 V. 
 
 Lachenour 
 
 
 699 
 
 V. Marcy 
 
 
 
 159 
 
 V. 
 
 Laming 
 
 
 24 
 
 Dixon V. Haley 
 
 
 
 227 
 
 V. 
 
 Lawder 
 
 
 224 
 
 V. Niccolls 50, 52, 
 
 53, 
 
 658, 
 
 670 
 
 V. 
 
 Lewis 
 
 
 484 
 
 V. Smith 
 
 
 
 227 
 
 V. 
 
 Lucas 
 
 
 273 
 
 Dobbin v. McDonald 
 
 
 
 553 
 
 V. 
 
 Mclnnis 
 
 
 85 
 
 Dobbins v. Duquid 
 
 
 369, 
 
 370 
 
 V. 
 
 McKaeg 
 
 
 254 
 
 Dobson v. Culpepper 
 
 
 
 682 
 
 V. 
 
 Masters 
 
 
 504 
 
 Dockham v. Parker 
 
 
 52, 53 
 
 V. 
 
 Matthews 
 
 
 261 
 
 Dockrill v. Schenk 
 
 
 271, 
 
 420 
 
 V. 
 
 Miller 
 
 
 30 
 
 Dod V. Monger 
 
 
 
 336 
 
 V. 
 
 Mills 
 
 
 688 
 
 Dodd V. Acklom 
 
 
 
 538 
 
 V. 
 
 Morse 
 
 
 340 
 
 V. Jones 
 
 
 
 389 
 
 V. 
 
 Murless 
 
 2 
 
 442 
 
 Dodge V. Lambert 
 
 
 382 
 
 384 
 
 V. 
 
 Ongley 
 
 272 
 
 273 
 
 Dodson V. Hall 
 
 
 
 118 
 
 V. 
 
 Parker 
 
 
 480 
 
 Doe V. Alexander 
 
 
 
 484 
 
 V. 
 
 Pasquali 
 
 
 480 
 
 V. Amey 
 
 
 180, 
 
 199 
 
 V. 
 
 Peck 
 
 
 329 
 
 V. Austin 
 
 
 
 700 
 
 V. 
 
 Pittman 
 
 
 476 
 
 V. Bancks 
 
 
 
 495 
 
 V. 
 
 Pyke 
 
 
 429 
 
 V. Barton 
 
 
 689 
 
 697 
 
 V. 
 
 Raffan 
 
 
 253
 
 TABLE OF CASES. 
 
 xlv 
 
 IReferences are to 8601(0718.] 
 
 Doe V. Rees 496 
 
 V. Reynolds 479, 705 
 
 V. Richards 112, 174 
 
 V. Ries 142 
 
 V. Roberts 95 
 
 V. Sandham 404, 675 
 
 V. Shewin 471 
 
 V. Smith 142 
 
 V. Smythe 688 
 
 V. Stanion 257 
 
 V. Stennett 177, 203, 212 
 
 V. Stevens 486 
 
 V. Stratton 256 
 
 V. Summersett 269 
 
 V. Thomas 186, 188, 254 
 
 V. Thompson 98 
 
 V. Ulph 471 
 
 V. Walker 688 
 
 V. Walters 265 
 
 V. Wandlass 484, 503, 534 
 
 V. Watts 496 
 
 V. Weller 261 
 
 V. Wells 481 
 
 V. Whitcomb 653 
 
 V. Wiggins 697 
 
 V. Williams 2, 257 
 
 V. Wood 197 
 
 V. Woodbridge 500 
 
 V. Worsley 467 
 
 Doggett V. Emerson 580 
 
 Doherty v. Doe 131, 135 
 
 Doidge V. Bowers 197 
 
 Dolan V. Scott 180, 182 
 
 Dole V. Thurlow 164 
 
 Dolittie V. Eddy 19, 563 
 
 Dollar V. Roddenberg 570, 572 
 
 Dolph V. White 328 
 
 Donahoe v. Rich 540 
 
 Donaldson v. Wilson 585, 595 
 
 Donelson v. Polk 320, 455, 456 
 
 Donkersley v. Levy 543 
 
 Donnelly v. Thieben 721 
 
 Donner v. Ogilvie 620 
 
 Donohue v. Chic. &c. Co. 199, 253 
 
 V. Kendall 614 
 
 Doolan v. McCauley 93 
 
 Dooly V. Stringham 632, 638 
 
 Dorrance v. Jones 461 
 
 V. Scott 87 
 
 Dorrell v. Johnson 228 
 
 Dorrill v. Stephens 202, 666 
 
 Dorsett v. Gray 571, 657 
 
 Dorsey v. Moore 635 
 
 Doss V. Craig 257 
 
 Dossee v. East India Co. 176 
 
 Dostal V. McCaddon 716 
 
 Doty V. Burdick 474a 
 
 V. Gillett 659 
 
 V. Gorham 725 
 
 V. Heth 52, 53 
 
 Dougal V. McCarthy 202 
 
 Dougherty v. Chestnutt 
 
 V. Matthews 
 
 v. Seymour 
 Douglas V. Fulda 
 
 V. Herms 
 
 V. Wilbur 
 Douglass V. Anderson 
 
 V. Branch Bank 
 
 V. Cross 
 
 V. Geiler 
 
 V. Murphy 
 
 V. Parker 
 
 V. Wiggins 
 Doughty V. Bowman 
 Doupe V. Genin 
 Dove V. Dove 
 Dow V. Bancks 
 Dowd V. Gilchrist 
 Dowling V. Nuebling 
 Downard v. Groff 
 Downing v. Palmateer 
 Doyle V. Dixon 
 
 V. Gibbs 
 
 V. Lord 
 
 V. Union Pac. R. Co 
 
 98 
 
 329, 471 
 
 122, 360 
 
 707 
 
 499 
 
 139 
 
 262, 474a 
 
 82, 367 
 
 463 
 
 2 
 
 389 
 
 516 
 
 632, 638 
 
 329 
 
 612 
 
 412 
 
 495 
 
 682 
 
 598 
 
 572 
 
 666 
 
 382 
 
 20, 170 
 
 106, 107, 359 
 
 22, 579 
 
 Co. 
 
 Drake v. Chicago &c. R. Co. 
 
 V. Wells 
 
 V. Wilhelm 
 Dresser v. Transportation Co. 
 Drew V. Buck 
 Drey v. Doyle 
 Dreyfus v. Hirt 
 Driggs V. Dwight 
 Drohan v. Drohan 
 Drown v. Smith 
 Drubaker v. Poage 
 Drum V. Harrison 
 Drury v. Drury 
 
 V. Tremont Imp 
 Dryden v. Kellogg 
 Dubois V. Kelley 
 Dubuque v. Miller 
 Ducey Lumber Co. v. Lane 
 Dudley v. Folliott 
 
 V. Sumner 
 Duffit V. Tuhan 
 Duinneen v. Rich 
 Duke v. Harper 
 Dumn V. Rothermel 
 Dumpor's Case 
 Dunbar v. Bonesteel 
 Duncan v. Beard 
 
 v. Blake 
 
 V. Potts 
 Duncklee v. Webber 
 Dunham v. Townsend 
 Dunlap V. Bullard 
 Dunn V. Bagby 
 
 V. Barton 
 
 V. Jaffray 
 
 V. Tillery 
 
 668, 
 140, 
 
 645 
 
 37, 38 
 
 555 
 
 436 
 
 65 
 
 264 
 
 670 
 
 369 
 
 91 
 
 636 
 
 5 
 
 34 
 
 92, 95 
 
 463 
 
 717 
 
 713 
 
 210, 212 
 
 12 
 
 5, 180, 474a, 
 156, 180, 
 
 361 
 
 58 
 
 690 
 
 39 
 
 682 
 
 197 
 
 470 
 
 65 
 
 14 
 
 68 
 
 179, 197 
 
 5. 363 
 
 29, 30, 224 
 
 446 
 
 373 
 
 331, 455 
 
 86, 320 
 
 34
 
 xlvi 
 
 TABLE OF CASES. 
 
 [References are to Sections.'] 
 
 Dunne v. School Trustees 
 Dunning v. Finson 
 
 V. Mauzy 
 Dunphy v. Goodlander 
 Dunshee v. Grundy 
 Dupas V. Wassell 
 Durand v. Curtis, 
 Durr V. Chase 
 Duryee v. Turner 
 Dustin V. Cowdry 
 Dutton V. Gerrish 404, 574, 
 Dutton V. Warschauer 
 Dutro V. Wilson 
 Duval V. McLoskey 
 Dwight V. Cutler 
 
 V. Mudge 
 Dwyer v. Carroll 
 
 V. Newmann 
 Dyer v. Curtis 
 
 V. Haley 
 
 V. Wightman 
 Dyett V. Pendleton 
 Dykers v. Townsend 
 
 E 
 
 362. 
 354, 
 
 178 
 
 226 
 
 538, 540 
 
 169 
 
 700 
 
 121 
 
 440, 456 
 
 66, 98 
 
 661 
 
 228, 561 
 
 576, 578 
 
 459 
 
 644 
 
 29 
 
 30 
 
 448 
 
 560 
 
 9 
 
 121, 124 
 
 566 
 
 675, 680 
 
 360, 365 
 
 158, 437 
 
 Eames v. Prentice 
 
 
 228, 
 
 559 
 
 Earl, V. Hart 
 
 
 
 127 
 
 Earle v. Fiske 
 
 
 
 164 
 
 V. Hale 
 
 
 
 699 
 
 V. Reed 
 
 
 
 96 
 
 East End Imp. Co. v. 
 
 Sipp 
 
 600, 
 
 611 
 
 East Norway Lake 
 
 Church V. 
 
 
 Froislie 
 
 
 
 20 
 
 East Tennessee &c. 
 
 R. Co. V. 
 
 
 Mayor &c. 
 
 
 
 412 
 
 Eastern R. Co. v. Benedict 
 
 
 158 
 
 Eastham v. Anderson 
 
 
 9 
 
 V. Crowder 
 
 
 
 431 
 
 Eastman v. Amoskeag Mfg. 
 
 Co. 
 
 604 
 
 V. Howard 
 
 
 
 654 
 
 V. Perkins 
 
 
 
 , 59 
 
 V. Vetter 
 
 
 260, 
 
 297 
 
 Easton v. Mitchell 
 
 
 
 112 
 
 Eaton V. Jaques 
 
 
 
 458 
 
 V. Lyon 
 
 
 
 339 
 
 V. Whitaker 
 
 159, 
 
 160, 
 
 679 
 
 Eberlein v. Abel 
 
 
 
 60 
 
 Ebersol v. Trainor 
 
 
 
 560 
 
 Eberts v. Fisher 
 
 
 
 389 
 
 Eberwine v. Cook 
 
 
 
 257 
 
 Eblin V. Miller 
 
 
 404, 
 
 590 
 
 Ecke V. Fetzer 
 
 
 329, 
 
 377 
 
 Ecker v. Chicago &c. 
 
 R. Co. 
 
 
 442 
 
 Eckhart v. Irens 
 
 
 
 464 
 
 Eddy, In re 
 
 
 
 671 
 
 Edelmuth v. McGarren 
 
 
 123 
 
 Edgar v. Jewell 
 
 
 
 51 
 
 V. Walker 
 
 
 
 605 
 
 Edge V. Strafford 
 
 
 24, 
 
 147 
 
 Edgerton v. Page 
 
 354, 356, 359, 360, 381 
 Edmison v. Aslesen 407 
 
 V. Lowry 105 
 
 Edmonds v. Mounsey 
 
 328, 455, 458, 495, 540 
 Edmonson v. Kite 651, 652, 654 
 
 Edmunds v. Electric Light &c. Co. 40 
 
 V. Missouri &c. Co. 652 
 
 Edmundson v. Preville 216, 281 
 
 Edwards v. demons 661 
 
 V. Davis 87 
 
 V. Hale 1, 207, 211, 221, 555 
 
 V. New York &c. R. Co. 
 
 576, 577, 579, 608, 609 
 
 447, 
 
 568. 
 462' 
 421 
 122 
 
 37 
 650 
 669 
 504 
 222, 558 
 131 
 392 
 
 87 
 389 
 349 
 229 
 465 
 348 
 548 
 666 
 
 V. Perkins 
 V. Spalding 
 V. Wick war 
 
 Egan V. Gordon 
 
 Eggleston v. New York &c. R. Co. 
 
 Egler V. Marsden 
 
 Ehrman v. Mayer 
 
 Eichart v. Bargas 
 
 Eichengreen v. Appel 
 
 Eighmie v. Taylor 
 
 Eisenhart v. Ordean 
 
 Ela V. Card 
 V. French 
 
 Eldred v. Leahy 
 V. Sherman 
 
 Eldredge v. Bell 
 
 Elevator Co. v. Brown 
 
 Elgutter V. Drishaus 
 
 Elkin V. Moore 
 
 Elliott V. Aiken 354, 540, 588, 600 
 V. Gantt 411, 417 
 
 V. Lawless 682 
 
 V. Round Mountain Coal & 
 
 Iron Co. 555 
 
 V. Smith 704 
 
 V. Stone 270 
 
 V. Stone City Bank 288 
 
 Ellis V. Boston &c. R. Co. 443 
 
 V. Bradbury 328, 411, 420 
 
 V. Brisacher 496 
 
 V. Lord Primate 63 
 
 V. Paige 
 
 148, 185, 192, 240, 254, 570 
 V. Welch 321, 361, 362, 393 
 
 Ellsworth V. Hale 175 
 
 Elmer v. Sand Creek Tp. 661 
 
 Elmira v. Dunn 413 
 
 Elms V. Randall 476 
 
 Elwell V. Shaw 660 
 
 Elwes V. Maw 725 
 
 Ely V. Ely 392, 398, 588 
 
 Emerick v. Tavener 
 
 201, 203, 254, 257, 477, 693, 699 
 
 Emerson v. Goodwin 85 
 
 V. Slater 136 
 
 V. Spicer 90
 
 TABLE OF CASES. 
 
 xlvii 
 
 iReferences are to Sections.1 
 
 Emerson v. Thompson 653 
 
 V. Weeks 1, 3, 13 
 
 Emery & Barnett, In re 706 
 
 V. Boston Terminal Co. 156, 343 
 
 V. Emery 655 
 
 V. Fugina 568 
 
 V. Hill 464, 468, 469, 473 
 
 V. Owings 66 
 
 Emmes v. Feeley 189, 362, 667, 680 
 
 Emmons v. Scudder 
 
 1, 177, 207, 227, 555 
 
 Emrich v. Union &c. Co. 71 
 
 Engel V. Fitch 369 
 
 Engels V. Mitchell 270 
 
 England v. Slade 703 
 
 English V. Key 421, 658, 670 
 
 Engstrom v. Merriam 369 
 
 Enyeart v. Carpenter 542 
 
 Epps V. Cole 650 
 
 Epstein v. Greer 262, 272, 288 
 Equitable Trust Co. v. Fisher 125 
 
 Ernst V. Crosby 121, 122 
 
 Erskine v. Adeane 130, 134 
 
 V. Plummer 38 
 
 Espen V. Hinchliffe 504 
 
 Espy V. Fenton 651, 654 
 
 Estabrook v. Hughes 486, 718 
 
 V. Stevenson 377 
 Estel V. St. Louis &c. R. Co. 496 
 
 Estep V. Estep 373, 404, 588, 600 
 Esty V. Baker 
 
 186, 228, 254, 293, 437, 438 
 
 Eten V. Leyster 659 
 
 V. Luyster 429, 552 
 
 Etheridge v. Osborn 324 
 
 Eubank v. May &c. Co, 161 
 
 Evans v. Conklin 76 
 
 V. Elliot 94 
 
 V. Enloe 474a 
 
 V. Hastings 255, 310 
 
 V. Kingsberry 88 
 
 V. McKanna " 137, 540 
 
 V. Murphy 596 
 
 V. Winona Lumber Co. 199 
 
 Evers v. Shumaker 136 
 
 Evertsen v. Sawyer 703 
 
 v. Sutton 563 
 
 Evill V. Conwell 557 
 
 Exchange Bank v. Rice 158 
 
 Eyre v. Jordan 579, 585 
 
 P 
 
 561 
 
 310 
 
 6 
 
 Fabri v. Bryan 
 Fahnestock v. Paustenauer 
 Failing v. Schenck 
 Fairchild v. Chastelleux 
 Faler v. McRae 
 Falkner v. Beers 688 
 
 Fall V. Hazelrigg 29, 152 
 
 V. Moore 212 
 
 171 
 
 Falley v. Giles 336 
 
 Falls V. Carpenter 35 
 
 Fanning v. Stimson 447, 452 
 
 Farley v. Craig 430, 658 
 
 V. McKeegan 197 
 
 V. Thompson 421, 670 
 
 Farmer v. Pickens 682, 697 
 
 V. Rogers 74 
 Farmers' Bank v. Mutual Asso. 
 
 Soc. 458, 462 
 Farmers' &c. Bank v. Kercheval 662 
 
 Farnam v. Hokman 262, 263 
 
 Farnham v. Monroe 453 
 
 Farnum v. Hefner 466 
 
 Farr v. Kenyon 471 
 Farrant v. Thompson 10, 474a, 635 
 
 Farrar v. Heinrich 709 
 
 Farrer v. Nightingal 435 
 
 Farrington v. Kimball 447, 451 
 
 Farris v. Houston 702 
 
 Farrow v. Bragg 93 
 
 v. Edmundson 18, 474a 
 
 Farson v. Goodale 270 
 
 Farwell v. Easton 383, 471 
 
 Faw V. Whittington 35 
 
 Faxon, Ex parte 461 
 
 Faxon v. Ridge 165 
 
 Fay V. Holloran 648 
 
 V. Muzzey 573 
 
 Faylor v. Brice 486, 504 
 
 Feary v. Hamilton 592 
 
 Feder v. Van Winkle 712 
 
 Felch V. Harriman . 568 
 
 V. Taylor 79 
 
 Felker v. Richardson 544 
 
 Fellows V. Gilhuber 479 
 
 Felthouse v. Bindley 157 
 
 Felton V. Millard 265 
 
 Fenly v. Stewart 660 
 
 Fenn v. Smart 494 
 
 Fennell v. Guffey 328 
 
 Fenner v. Duplock 198 
 
 Fentiman v. Smith 36 
 
 Fenton v. Montgomery 631 
 
 Fera v. Child 616 
 
 Feret v. Hill 129 
 
 Ferguson v. Cornish 340 
 
 V. Hoshi 315 
 
 V. Jackson 338 
 Ferris v. American Brewing Co. 
 
 382. 384 
 
 v. Hoglan 47, 49 
 
 Fesmire v. Brock 86 
 
 Feyreisen v. Sanchez 60 
 Field v. Herrick 
 
 89, 92, 199, 349, 364, 543 
 
 V. Mills 467 
 
 V. Schieffelin 90 
 Fields V. Brown 75, 122, 124, 664 
 
 Fifty Associates v. Grace 448 
 
 V. Howland 327, 504, 556
 
 xlviii 
 
 TABLE OF CASES. 
 
 [References are to Sections.'\ 
 
 Files V. Magoon 
 Fillebrown v. Hoar 
 Finch V. Moore 
 Findlay v. Smith 
 Finkelstein v. Herson 
 Finley v. Simpson 
 Finney v. Cist 
 V. St. Louis 
 
 627 
 
 365, 505, 669 
 
 207, 270, 297 
 
 632 
 
 261, 303 
 
 80 
 
 337, 554 
 
 201 
 
 First Cong. &c. Soc. v. Rochester 
 
 77, 80, 396 
 
 First Nat. Bank v. Security Bank 328 
 
 First Nat. Bank, &c. v. Adam 67 
 
 Firth V. Rowe 727 
 
 Fischer v. Johnson 237 
 
 Fish V. FoUey 332 
 
 Fish V. Thompson 546 
 
 Fisher v. Deering 423, 430 
 
 V. Goebel 410 
 
 V. Lewis 331 
 
 V. Milliken 447 
 
 V. Provin 87 
 
 V. Prowse 604 
 
 V. Smith 513 
 
 V. Thirkell 588, 595, 600 
 
 Fiske V. Framingham Mfg Co. 5, 22 
 
 V. Steele 368 
 
 Fitch V. Gosser 641 
 
 V. Windram 30 
 
 V. Woodruff, &c. Works 497 
 
 Fitchburg, &c. Co. v. Melven 
 
 364, 365, 422, 669 
 Fitzgerald v. Anderson 714, 716 
 
 V. Beebe 650 
 
 Fitzherbert v. Shaw 718 
 
 Fitts V. Whitney 268 
 
 Flagg V. Badger 116 
 
 Flanagan v. Pearson 695 
 
 Flannery v. Rohrmayer 171, 173 
 
 Fleischner v. Citizens' Inv. Co. 
 
 337, 603, 605, 611 
 
 Fleming v. King 675 
 
 Fletcher v. Kelly 726 
 
 V. McFarlane 77 
 
 Flint V. Sweeney 206 
 
 Flood V. Flood 227 
 
 V. Yandes 320 
 
 Florsheim v. Dullaghan 679 
 
 Floyd V. Floyd 6, 251 
 
 Fludier v. Lombe 23 
 
 Flureau v. Thornhill 140 
 
 Flynn v. Hatton 592, 620 
 
 V. Trask 392 
 
 Fogle V. Chaney 257 
 
 Folden v. State 59 
 
 Foley V. Addenbrooke 713 
 
 V. Southwestern Land Co. 47, 52 
 
 V. Wyeth 30, 178 
 
 Folkingham v. Croft 464 
 
 FolEom V. Cook 66, 79 
 
 V. Moore 185 
 
 V. Perrin 157 
 
 Folts V. Huntley 58, 111, 114, 362 
 Fontaine v. Schulenburg &c. Co. 420 
 
 Foote V. Cincinnati 362 
 
 V. Colvin 48, 51 
 
 V. Overman 422 
 
 Forbes v. Williams 717 
 
 Forbush v. Lombard 102, 6/7 
 
 Force v. Callahan 334 
 
 Ford V. Campfield 74 
 
 V. Cobb 573 
 
 Fordyce v. Cole 700 
 
 Forest v. Byrne 431 
 
 Forrest v. Durnell 434, 445, 446 
 
 Forsythe v. Price 569 
 
 Fort V. Brown 63 
 Fort Dearborn Lodge v. Klein 
 
 557, 558 
 
 Fortier v. Ballance 476 
 
 Fortune v. Watkins 35 
 
 Foss V. Marr 572 
 
 V. Van Driele 706 
 
 Foster v. Atwater 462 
 
 V. Browning 37 
 
 V. Fleishaus 540 
 
 V. Kelsey 557 
 
 V. Penry 6, 656 
 
 V. Peyser 574, 576, 583 
 
 Fougera v. Cohn 217 
 
 Fowle V. Freeman 138 
 
 Fowler v. Black 100 
 
 V. Bott 393, 404, 675 
 
 V. Fay 463 
 
 V. Payne 392, 673, 675 
 
 V. Simpson 700 
 
 Fox V. Corey 654 
 
 V. Harding 497 
 
 V. McKee 64, 361 
 
 V. McKinney 55 
 
 V. Nathans 119, 169, 261 
 
 V. Swann 467 
 
 Frame v. Badger 50 
 
 Francis v. Cockrell 609 
 
 V. Sayles 378 
 
 Frank v. Brunnemann 384 
 
 V. Conradi 593 
 
 V. Maguire 462 
 
 V. New York &c. R. Co. 442 
 
 V. Thomas 664 
 
 Franklin v. Brown 574, 577 
 
 V. Merida 698 
 
 V. Palmer 703 
 
 Franklin Land &c. Co. v. Card 239 
 
 Fratcher v. Smith 151 
 
 Fratt V. Hunt 403 
 
 Frauerman v. Lippincott 473 
 
 Frazer v. Robinson 682 
 
 Frazier v. Caruthers 464, 558 
 
 V. Hanlon 557 
 
 Frederick v. Callahan 332, 377 
 
 Fredericksen v. Singer Mfg. Co. 559 
 
 Free v. Stuart 716, 723
 
 TABLE OF CASES. 
 
 xlix 
 
 iReferences are to Sections.'] 
 
 Freeland v. Ritz 
 Freeman v. Heath 
 
 V. Underwood 
 
 V. Wilson 
 Freer v. Stotenbur 
 Freidenburg v. Jones 
 French v. Fuller 
 
 V. Gray 
 
 V. Mayor, &c. 
 Friedhoff v. Smith 
 Friedlander v. Ryder 
 
 427, 715, 716, 
 Friedman v. McAdory 
 
 V. Schwabacher 
 Frisbie v. Price 
 Frischberg v. Hurter 599, 
 Frost V. Earnest 
 
 V. Kellogg 
 
 V. Raymond 
 Frout V. Hardin 
 Fry V. Day 
 
 V. Ford 
 
 V. Jones 
 
 V. Patridge 
 Fuhr V. Dean 
 Fuller V. Ruby 
 
 V. Sweet 474a, 
 
 V. Swett 
 Fulton V. Stuart 
 Funk V. Kincaid 
 Furlong v. Leary 188, 
 
 Fusselman v. Worthington 
 
 139, 151 
 705 
 9 
 558 
 383 
 605 
 
 627, 646 
 164 
 724 
 
 155, 180 
 
 723, 726 
 
 139 
 574, 576 
 
 183 
 600, 607 
 
 362 
 48 
 
 350 
 
 53 
 
 126, 129 
 
 547 
 22, 49 
 
 543 
 
 558 
 358, 365 
 688, 698 
 189, 667 
 446, 460 
 421, 700 
 227, 428 
 474a 
 
 G 
 
 Gable v. Wetherholt 688, 689 
 
 Gaffield v. Hapgood 725 
 
 Gage V. Bates 503 
 
 V. Campbell 682 
 
 V. Smith 489 
 
 Gaines v. Green Pond &c. Co. 637 
 
 V. McAdam 549 
 
 Gaither v. Hascall-Richards &c. 
 
 Co. 574, 580 
 
 V. Stockbridge 443 
 
 Gale V. Nixon 80 
 
 V. Oil Run &c. Co. 480, 481 
 
 Gallagher v. Bennett 702 
 
 V. Button 576, 588, 614 
 
 V. Herbert 464 
 
 V. Shipley 573 
 
 Galloway v. Kerby 267 
 
 V. Ogle 688 
 
 Galveston City R. Co. v. Gulf 
 
 Land Co. 675 
 
 Gandy v. Jubber 219, 599, 604, 611 
 Ganley v. Hall 617 
 
 Gannett v. Albree 330, 331, 384, 471 
 Gano V. Vanderveer 148, 349 
 
 Ganson v. Baldwin 296 
 
 Ganter v. Atkinson 41, 201 
 
 Jones L. & T. — iv 
 
 Garber v. Gianella 
 
 163, 
 
 166 
 
 Garcia v. Gunn 
 
 
 110 
 
 Gardiner v. Corson 
 
 
 324 
 
 Gardner v. Board of 
 
 Commis- 
 
 
 sioners 
 
 201, 202, 
 
 204 
 
 V. Hazleton 
 
 
 132 
 
 V. Head 
 
 
 56 
 
 V. Keteltas 
 
 361, 366, 
 
 367 
 
 V. Rhodes 
 
 
 587 
 
 Gardt v. Brown 
 
 
 69 
 
 Garland v. Hilborn 
 
 
 53 
 
 Garner v. Byard 
 
 
 447 
 
 V. Hannah 
 
 
 
 411, 414, 
 
 420, 491, 
 
 503 
 
 V. Ullman 
 
 
 152 
 
 Garnhart v. Finney 
 
 496, 
 
 497 
 
 Garrett v. Clark 
 
 180, 
 
 251 
 
 Garroutte v. White 
 
 
 445 
 
 Garsed v. Turner 
 
 
 140 
 
 Garth v. Caldwell 
 
 
 568 
 
 V. Cotton 
 
 
 632 
 
 Gartside v. Outley 
 
 
 25 
 
 Garvin v. Jennerson 
 
 
 29 
 
 Gasles v. Johnson 
 
 
 455 
 
 Gatch v. Garretson 
 
 
 319 
 
 Gates V. Caldwell 
 
 
 350 
 
 V. Green 
 
 
 679 
 
 V. Hendrick 
 
 
 372 
 
 Gault V. Stormont 
 
 
 174 
 
 Gay, Ex parte 
 
 
 171 
 
 Gay V. Davey 
 
 
 681 
 
 V. Ihm 
 
 
 74 
 
 Gaylord v. Soragen 
 
 
 121 
 
 Gazzolo V. Chambers 
 
 361, 366, 
 
 367 
 
 Geary v. Parker 
 
 
 507 
 
 Gedge v. Shoenberger 
 
 
 411 
 
 Gee V. Moss 
 
 
 129 
 
 V. Young 
 
 
 571 
 
 Geer v. Fleming 
 
 
 640 
 
 Gelston v. Sigmund 
 
 
 563 
 
 Genau v. District of Columbia 
 
 
 
 628, 
 
 629 
 
 Genet v. Tallmadge 
 
 
 90 
 
 Genin v. Ingersoll 
 
 
 699 
 
 George v. Fisk 
 
 
 642 
 
 V. Patney 
 
 707, 
 
 709 
 
 Gerber v. Grabel 
 
 
 381 
 
 German State Bank v. 
 
 Herron 
 
 237 
 
 Gerzebek v. Lord 
 
 
 334 
 
 Gett V. McManus 
 
 373 
 
 726 
 
 Gibbins v. Board &c. 
 
 
 138 
 
 Gibbons v. Dayton 
 
 59 
 
 253 
 
 V. Dillingham 
 
 640 
 
 641 
 
 Gibbs V. Estey 
 
 
 715 
 
 Gibson v. Courthope 
 
 
 461 
 
 V. Kirk 
 
 
 650 
 
 v. Mullican 
 
 
 445 
 
 V. Needham 
 
 
 146 
 
 V. Pearsall 
 
 121 
 
 123 
 
 V. Wells 
 
 
 625 
 
 Giddings v. Felker 
 
 445 
 
 659
 
 TABLE OF CASES. 
 
 [References are to Sections.'^ 
 
 Gifford V. King 
 Gilbert v. Bulkley 
 
 V. Port 
 Gilchrist v. Gilchrist 
 Giles V. Austin 
 
 V. Comstock 
 
 V. Hooper 
 
 V. O'Toole 
 
 V. Simonds 
 Gill V. Middleton 
 
 V. Patton 
 Gillespie v. Beecher 
 Gillett V. Mathews 
 Gilliam v. Moore 
 
 289 
 541 
 387 
 393 
 491 
 364 
 415 
 140 
 37, 38 
 596 
 666 
 559 
 700 
 706 
 
 Gilliland v. Chicago &c. R. Co. 606 
 Gilloon V. Reilly 614, 619, 621 
 
 Gilman v. Hoare 84 
 
 V. Milwaukee 201 
 
 V. Wills 572 
 
 Gilmore v. Wilbur 38 
 
 Gilpin V. Adams 65 
 
 Gilson V. Boston 157 
 
 Gindrat v. Western &c. 477 
 
 Gist V. Smith 496 
 
 Givens v. Mullinax 702 
 
 Gladwell v. Holcomb 
 
 195, 218, 252, 307 
 Glascock V. Robards 29 
 
 Glass V. Coleman 607. 718 
 
 Glazebrook v. Woodrow 324 
 
 Gleason v. Boehm 614, 617, 619 
 
 Gleaton v. Gleaton 702 
 
 Gleim v. Rise 702 
 
 Glen V. Gibson 688 
 
 Glenn v. Thompson 269 
 
 Glickauf v. Maurer 596, 597 
 
 Glover v. Pipe 625 
 
 Gluck V. Elkan 499, 500 
 
 V. Mayor &c. of Baltimore 
 
 362, 588, 676, 680 
 Gocio V. Day 373 
 
 Godard v. South Carolina R. Co. 
 
 248, 251, 312 
 Goddard v. Hall 2 
 
 V. South Carolina R. Co. 192 
 
 Godfrey v. Black 465 
 
 V. Bryan 88 
 
 Godley v. Hagerty 613 
 
 Goebel v. Hough 358 
 
 Goldberg v. Lavinski 152 
 
 Goldman v. New York Adv. Co. 40 
 Goldsberry v. Bishop 33 
 
 Goldsboro Storage & Warehouse 
 
 Co. V. Duke 526 
 
 Goldsborough v. Gable 
 
 136, 201, 204, 206, 545 
 Goldsmith v. Wilson 84, 431, 464 
 Gomber v. Hackett 497 
 
 Gomez v. Gomez 111 
 
 Goode V. Ruehle 420 
 
 V. Webb 119 
 
 Goodell V. Lassen 647 
 
 Goodenow v. Allen 170 
 
 V. Kilby 682 
 
 Gooding v. Shea 640 
 
 Goodman v. Hannibal &c. R. Co. 713 
 
 v. Jones 693 
 
 V. Malcolm 474a 
 
 Goodrich v. Jones 573 
 
 V. Tenney 664 
 
 Goodright v. Cator 504 
 
 V. Davids 473, 496, 497 
 
 V. Straphan 87 
 
 Goodsell V. Lawson 682 
 
 Goodtitle v. Herbert 183 
 
 V. Way 74, 141, 142 
 
 V. Woodward 265 
 
 Goodwin v. Gilbert 77, 79, 80 
 
 V. Goodwin 173 
 
 Gordon v. George 455 
 
 V. Haywood 87 
 
 v. Peltzer 599, 600 
 
 Gorton v. Gregory 332 
 
 Goshen v. People 561 
 
 Goshorn v. Steward 13 
 
 Goss &c. Co. V. Oviatt 397, 401 
 
 Gossett v. Drydale 569 
 
 Gott v. Gandy 588, 600 
 
 Gottsberger v. Radway 404 
 
 Gould V. Kerr 654 
 
 V. Stanton 653 
 
 V. Sub-District No. 3 431 
 
 V. Thompson 29, 227, 655 
 
 Gourlay v. Duke of Somerset 346 
 
 Gore V. Stevens 705 
 
 Gowen v. Shaw 657 
 
 Grabenhorst v. Nicodemus 355 
 
 Grace v. Michand 260, 297 
 
 Gradle v. Warner 496, 513 
 
 Grady v. Iback 655 
 
 V. Warrell 93, 181, 296 
 
 V. Wolsner 603 
 
 Graffam v. Pierce 130, 131, 133 
 
 Graham v. Anderson 268, 270 
 
 V. Chatoque Bank 89 
 
 V. Dempsey 206 
 
 V. Moore 688 
 
 V. Wade 412 
 
 Grand Canal Co. v. Fitzsimons 365 
 
 Grand Rapids &c. Co. v. Jarvis 642 
 
 V. South Grand Rapids &c. Co. 9 
 
 Granger v. Collins 349 
 
 V. Parker 682 
 
 Grannis v. Clark 321 
 
 Grant v. Johnson 324 
 
 V. Ramsey 159, 160 
 
 v. White 212, 254 
 
 Grauel v. Soeller 110 
 
 Gravenor v. Woodhouse 198 
 
 Graves v. Berdan 102, 474, 570, 677 
 
 v. Porter 455 
 
 V. Weld 570
 
 TABLE OF CASES. 
 
 u 
 
 [References are to Sections.^ 
 
 Gray v. Blanchard 485 
 V. Chamberlain 661 
 V. Clement 455 
 V. Finch 557 
 V. Kaufman &c. Co. 550 
 V. Murray 389 
 V. Rawson 445 
 V. Reynolds 48 
 Graysons v. Richards 541 
 Greason v. Keteltas 91, 346 
 Great Northern R. Co. v. East- 
 ern &c. R. Co. 9 
 Great Pond &c. Co. v. Buzzell 66 
 Greaves v. Ashlin 412 
 Greeley v. Stilson 38 
 Green v. Bell 410 
 V. Biddle 653 
 V. Collins 121 
 V. Dietrich 34, 682 
 V. Eales 392, 396, 593 
 V. Hammock 560 
 V. Kroeger 214, 564 
 V. Missouri &c. R. Co. 682 
 V. Morrison 462 
 V. Robinson 60, 694 
 Green Bay &c. Co. v. Hewitt 70 
 Greenaway v. Adams 467 
 Greene v. Cole 626 
 V. Hague 616, 623 
 V. Tallman 369 
 Greenleaf v. Birth 63 
 Greenlee v. Greenlee 160 
 Greeno v. Munson 699 
 Greenslade v. Tapscott 24 
 Greenup v. Vernor 654 
 Greenwood v. Moore 695 
 V. Strother 152 
 V. Tyler 87 
 Greer v. Wilbur 563 
 Gregor v. Cady 596 
 Gregory v. Ford 88 
 V. Lee 96 
 V. Wilson 492 
 Greider's Appeal 538 
 Greiner v. Cota 341 
 Grescot v. Green 334, 462 
 Greton v. Smith 180 
 Grey v. Cuthbertson ■ 329 
 Griffin v. Colver 140 
 V. Knisely 139, 141, 267 
 V. Ransdell 716, 726 
 Griffith's Case 625 
 Griffith V. Brackman 25 
 V. Collins 29, 34 
 V. Hodges 548 
 V. Lewis 603, 607, 611 
 V. Schwenderman 92 
 Griffiths V. Henderson 322 
 Grigsby v. Western &c. Tel Co. 
 
 141, 162 
 
 Grimman v. Legge 538, 540, 667 
 
 Griswold v. Cook 47, 53 
 
 Grizzard v. Roberts 688 
 
 Grizzle v. Pennington 432 
 
 Groff V. Levan 572 
 
 Grogan v. Broadway &c. Co. 605 
 
 Grommes v. St. Paul Trust Co. 
 
 447, 501 
 Groome v. Ogden City Corpora- 
 tion 350 
 Gross V. Hays 185 
 Grosvenor v. Henry 170, 289 
 Groustra v. Bourges 187 
 Grout V. Townsend 85, 477 
 Grove v. Youell 357 
 
 V. Fox 151 
 
 Grubb V. Grubb 474a 
 
 Grundin v. Carter 328, 455, 456 
 
 Grundy v. Martin 86 
 
 Gruner Lumber Co. v. Nelson 378 
 Grunewald v. Schaales 299 
 
 Grute V. Locroft 88 
 
 Guay V. Kehoe 373 
 
 Gudger v. Barnes 29 
 
 Guest V. Opdyke 48, 51 
 
 V. Reynolds 381 
 
 Guetzkow Bros. Co. v. Andrews 371 
 Guffey V. Clever 128, 580 
 
 Guffy v. Hukill 482, 483 
 
 Guild V. Leonard 79 
 
 Guinzburg v. Claude 442 
 
 Guion V. Anderson 88 
 
 Gulf &c. R. Co. V. Cusenberry 646 
 
 V. Settegust 434, 644 
 
 Gulliver v. Fowler 589 
 
 Gunn V. Scovil 200 
 
 V. Sinclair 299, 428 
 
 Gunsolus V. Lormer 647 
 
 Guthrie v. Jones 710 
 
 Gutherie v. Stockton 666 
 
 Guthman v. Castleberry 587 
 
 Guthmann v. Vallery 670 
 
 Gutteridge v. Munyard 397 
 
 Guvernator v. Kenin 254 
 
 Guy V. Barnes 98 
 
 Guyon v. Lewis 81 
 
 Gwinnell v. Eamer 599 
 
 Gwyn V. Wellborn 538 
 
 Gwynn v. Jones 555 
 
 H 
 Hackney v. State 46 
 
 Hadley v. Berners 328, 329, 330 
 
 V. Havens 562 
 
 Haeussler v, Holman &c. Co. 
 
 459, 555 
 Haezlip v. Rosenberg 616 
 
 Haflick v. Stober 716 
 
 Hagar v. Buck 491 
 
 Hager v. Wikoff 682 
 
 Haines v. Beach 216, 219 
 
 V. Downey 126
 
 Hi 
 
 TABLE OF CASES. 
 
 [References are 
 
 to Sections.'l 
 
 
 
 
 Halbut V. Forrest City 
 
 
 393 
 
 Hansen v. Meyer 
 
 
 329, 
 
 377 
 
 Haley v. Bennett 
 
 
 29 
 
 V. Prince 
 
 
 
 422 
 
 V. Boston Belting Co. 
 
 
 81 
 
 V. Ruckman 
 
 
 
 47 
 
 V. Hickman 
 
 260, 
 
 268 
 
 Hanslip v. Padwick 
 
 
 
 140 
 
 Hall V. Beston 
 
 
 404 
 
 Hanson v. Allen 
 
 
 
 682 
 
 V. Burgess 199, 540, 
 
 543, 
 
 667 
 
 V. Barnes 
 
 
 
 444 
 
 V. Butler 
 
 
 697 
 
 V. Cruse 
 
 576, 
 
 588, 
 
 592 
 
 V. Center 
 
 387, 
 
 454 
 
 V. Johnson 
 
 
 221, 
 
 225 
 
 V. Chaffee 
 
 
 45 
 
 V. Stevenson 
 
 
 
 461 
 
 V. Dewey 
 
 
 696 
 
 Harbeck v. Sylvester 
 
 
 
 333 
 
 V. Durham 
 
 
 569 
 
 Harcourt v. Wyman 
 
 
 
 88 
 
 V. Gould 
 
 
 501 
 
 Hardin v. Forsythe 
 
 
 699, 
 
 703 
 
 V. Holmes 
 
 
 325 
 
 v. Pulley 
 
 
 
 3 
 
 V. Horton 
 
 140, 
 
 145 
 
 Harding v. Crethorn 
 
 
 203, 
 
 554 
 
 V. Marston 
 
 
 462 
 
 V. Seeley 
 
 
 
 337 
 
 V. Myers 
 
 201, 
 
 251 
 
 Hardison v. Mann 
 
 
 
 447 
 
 V. Parker 
 
 
 378 
 
 Hardware Co. v. McCarty 
 
 
 465 
 
 V. Ryder 
 
 
 128 
 
 Hardy v. Williams 
 
 
 
 651 
 
 V. Spaulding 
 
 337, 
 
 338 
 
 Hare v. Celey 
 
 
 
 48 
 
 V. Wadsworth 
 
 251, 
 
 259 
 
 V. Groves 
 
 
 
 405 
 
 Hall &c. Co. V. Wilbur 
 
 
 683 
 
 Hargrave v. King 431, 
 
 464, 
 
 467, 
 
 469 
 
 Hallberg v. Brosseau 
 
 
 665 
 
 Hargrove v. Miller 
 
 
 63, 
 
 110 
 
 Haller v. Squire 
 
 
 547 
 
 Harkey v. Cain 
 
 
 
 725 
 
 Hallett V. Wylie 
 
 
 
 Harlan v. Harlan 
 
 
 
 635 
 
 141, 143, 392, 
 
 393, 
 
 675 
 
 v. Lehigh &c. Co. 
 
 
 
 574 
 
 Hallifax v. Chambers 
 
 
 631 
 
 Harloe v. Lambie 
 
 
 
 135 
 
 Halligan v. Wade 
 
 
 669 
 
 Harlow v. Lake Superior Iron Co. 67 
 
 Ham V. Hill 
 
 
 420 
 
 Harmony Co. v. Ranch 
 
 
 356 
 
 Hamblett v. Bennett 
 
 36, 43 
 
 Harms v. McCormick 
 
 349, 
 
 369, 
 
 660 
 
 Hamberton v. Stead 
 
 
 146 
 
 Harnett v. Maitland 
 
 
 
 627 
 
 Hamill v. Jalonick 
 
 
 682 
 
 Harpel v. Fall 
 
 
 
 579 
 
 Hamilton v. Ames 
 
 
 98 
 
 Harper v. Charlesworth 
 
 
 647 
 
 V. Graham 
 
 
 63 
 
 Harrington v. Hall 
 
 
 
 473 
 
 V. Pittock 
 
 
 697 
 
 V. Watson 
 
 102, 
 
 675, 
 
 677 
 
 V. Thrall 
 
 
 323 
 
 Harris v. Booker 
 
 
 
 655 
 
 V. Wright 
 
 
 349 
 
 V. Carson 
 
 
 
 569 
 
 Hammers v. Haurick 
 
 
 702 
 
 V. Corlies 
 
 
 
 395 
 
 V. Johnson 
 
 
 463 
 
 V. Coulborn 
 
 
 
 329 
 
 Hammock v. Creekmore 
 
 
 49 
 
 V. Dub 
 
 
 
 101 
 
 Hammon v. Douglas 180 
 
 192 
 
 242 
 
 V. Frank 
 
 
 431 
 
 460 
 
 V. Sexton 
 
 
 413 
 
 V. Frink 
 
 
 
 32 
 
 Hammond v. Barton 
 
 12 
 
 113 
 
 V. Goslin 
 
 391 
 
 397 
 
 635 
 
 V. Blue 
 
 
 703 
 
 V. Halverson 
 
 
 261 
 
 315 
 
 V. Dean 
 
 
 5 
 
 V. Heackman 
 
 447 
 
 448 
 
 675 
 
 V. Thompson 
 
 186 
 
 189 
 
 V. Howes 
 
 
 
 340 
 
 V. Winchester 
 
 
 41 
 
 V. Knowles 
 
 
 
 92 
 
 Hammons v. McClure 
 
 
 702 
 
 V. McDonald 
 
 
 
 123 
 
 Hanaw v. Bailey 
 
 
 487 
 
 V. Ohio Oil Co. 
 
 
 
 41 
 
 Hanchet v. Whitney 
 
 251 
 
 260 
 
 V. Taylor 
 
 
 
 87 
 
 Hanchett v. Whitney 
 
 
 268 
 
 Harrisburg School Dist 
 
 . V. Long 
 
 697 
 
 Hancock v. Boggus 
 
 
 50 
 
 Harrison v. Blackburn 
 
 
 15 
 
 458 
 
 V. Yunker 
 
 
 82 
 
 V. Colton 
 
 
 
 61 
 
 Hand v. Osgood 
 
 152 
 
 , 154 
 
 v. Middleton 
 
 174 
 
 185 
 
 314 
 
 V. Suravitz 
 
 
 414 
 
 v. Parmer 
 
 
 
 142 
 
 Handrahan v. O'Regan 
 
 
 129 
 
 V. Ricks 
 
 
 49, 50, 53 
 
 Hanham v. Sherman 
 
 
 540 
 
 v. Steele 
 
 
 
 658 
 
 Hanks v. Price 
 
 
 1 
 
 Harry v. Harry 
 
 
 
 555 
 
 Hanley v. Banks 
 
 349 
 
 , 612 
 
 Hart V. Evans 
 
 
 
 644 
 
 Hanlon v. Thompson 
 
 
 14 
 
 V. Gray 
 
 
 
 268 
 
 Hanrahan v. O'Reilly 
 
 
 725 
 
 V. Hart 
 
 
 111 
 
 637 
 
 Hansen v. Dennison 
 
 52, 53 
 
 V. Pratt 
 
 
 
 553
 
 TABLE OF CASES. 
 
 liii 
 
 [References are to iSections.'i 
 
 Hart V. Windsor 574, 576, 578, 588 
 Harter v. Cristoph 70 
 Hartford &c. Min. Co. v. Cam- 
 bria Min. Co. 109 
 V. Mayor &c. 404 
 Hartshorn v. Earley 95 
 Hartung v. Witte 331 
 Hartzog v. Hubbard 697 
 Harty v. Harris 201, 210 
 Harvey v. Briggs 221 
 V. Brydges 558 
 V. Gunzberg 201, 202 
 V. Harvey 629 
 V. McGrew 445 
 Harwood v. Hopkins 468 
 Hastings v. Crunckleton 632, 636 
 V. Livermore 644 
 V. Lovejoy 135, 136 
 v. Wilson 461 
 Hasty V. Wheeler 632 
 Hatch V. Bullock 689 
 V. Hart 52, 54, 55 
 V. Hatch 541 
 V. Stamper 588, 681 
 Hatchell v. Kimbrough 50, 53 
 Hately v. Myers 201, 204 
 Hatfield v. Fullerton 669 
 Hauser v. Romer 180, 192 
 Hauxhurst v. Lobree 221, 226, 254 
 Haverstick v. Sipe 106, 381 
 Hawes v. Favor 486 
 V. Shaw 705 
 Hawkins v. Coulthurst 389 
 V. James 14 
 V. Sherman 334 
 Haworth v. Taylor 164 
 Hawralty v. Warren 387 
 Hay V. Connelly 19 
 V. Cumberland 98 
 v. Palmer 667 
 Hayden v. Bradley 409 
 V. Lucas 139 
 Hayes v. Bickerstaff 361 
 V. Ferguson 354, 363, 390 
 V. Lawyer 426 
 Hayner v. Smith 349, 354, 355, 365 
 Haynes v. Aldrich 206, 209 
 V. Union Im. Co. 503 
 Hays V. Goree 5 
 Hayward v. Ramge 354, 358, 549 
 V. Collins 562 
 Haywood v. Miller 19, 20, 563 
 V. O'Brien 430 
 v. Ramge 382 
 Hazeltine v. Colburn 
 
 244, 272, 275, 302 
 
 Hazen v. Hoyt 388 
 
 Hazlehurst v. Kendrick 329 
 
 Hazlett V. Powell 359, 681 
 
 Head v. Head 257, 474a 
 
 Heal V. Niagara Oil Co. 87 
 
 Healy v. Trant 120, 489 
 
 Hearn v. Gray 11, 180 
 
 Hearne v. Lewis 427, 670 
 
 Heath v. Williams 682, 688 
 Hearilon v. Farmers' Bank 570, 572 
 
 Hebron Church v. Adams 566 
 
 Hecht v. Dettman 422 
 
 V. Ferris 424 
 
 v. Heerwagen 667 
 
 Heckart v. McKee 703 
 
 Hedderich v. Smith 590, 718 
 
 Heflin v. Burns 427 
 
 Hefling v. Van Zandt 423 
 
 Hegeman v. McArthur 669 
 Heilbron v. King's River &c. Co. 642 
 
 V. Last Chance &c. Co. 644 
 Heims Brew. Co. v. Flannery 501 
 
 Heineck v. Grosse 121 
 
 Heintze v. Bentley 588, 600 
 
 Heiple v. Reinhart 487 
 
 Helburn v. Mofford 675, 677 
 
 Helena v. Turner 683 
 
 Hellams v. Patton 153 
 
 Helwig V. Jordan 603 
 
 Hemingway v. Preston 125 
 
 V. Scales 87 
 
 Hemphill v. Flynn 201, 206 
 
 Henderson v. Connelly 378 
 
 V. Hay 464 
 
 v. Virden Coal Co. 77, 111 
 
 Hendrick v. Cannon 255 
 
 Hendrickson v. Beeson 421, 522 
 
 v. Hendrickson 557 
 
 Hendrix v. Dickson , 328, 411 
 
 Henkel v. Murr 621 
 
 Henly v. Neal 353 
 
 Hennessey v. Hoag 654 
 
 Henry v. Chrisinger 417 
 
 V. Tupper 491 
 
 Henson v. Beckwith 599 
 
 Heme v. Benebow 625 
 
 Herrell v. Sizeland 251, 257 
 
 Herrin v. Libbey 126, 128 
 
 Herrington v. Wood 65 
 
 Herrmann v. Curiel 661 
 
 Hersey v. Chapin 640, 641 
 
 Herskell v. Bushnell 51 
 
 Herter v. Mullen 208, 209 
 
 Hertzberg v. Beisenbach 367, 367a 
 
 Hess V. Newcomer 574, 629 
 
 V. Weingartner 404 
 
 Hessel v. Johnson 659 
 
 Hesseltine v. Seavey 540, 543 
 
 Hetfield v. Central R. Co. 37 
 
 Hetzel V. Barber 703 
 
 Hentiz v. Pipher 699 
 
 Hewlins v. Shippam 36, 44 
 
 Hexter v. Knox 410 
 
 Heyer v. Beatty 682 
 
 Heywood v. Fulmer 41 
 Hibbard v. Hurlburt 98, 101, 110
 
 Ur 
 
 TABLE OF CASES. 
 
 [References are to Sections.} 
 
 Hicks V. Downing 446 
 
 V. Martin 445, 446 
 
 V. Parham 675 
 
 Higgins V. California &c. Co. 84, 668 
 V. Halligan 267 
 
 V. Turner 428, 689, 690, 702, 704 
 
 Co 
 
 Hilbourn v. Fogg 
 Hildretli v. Conant 
 Hill V. Barclay 
 
 V. Bishop 
 
 V. Boutell 
 
 V. Coal Valley Min 
 
 V. Cutting 
 
 V. De Rocliement 
 
 V. Dobie 
 
 V. Gill 
 
 V. Hill 
 
 v. Hooper 
 
 V. Jamieson 
 
 V. Reno 
 
 V. Rudd 
 
 V. Saunders 
 
 V. Spear 
 
 V. Taylor 
 
 V. Wand 
 
 V. Wilson 
 
 V. Woodman 
 Hill Trustees 
 Hillhouse v. Jennings 
 Hilliard v. Gas Coal Co. 
 
 V. New York &c. Co. 
 
 Hilsenbeck v. Guhring 
 Hilsendegen v. Scheicli 
 Hinckley v. Guyon 
 Hines v. Wilcox 
 Hingham v. Sprague 
 Hinsdale v. Humphrey 
 Hintze v. Thomas 
 Hirsch v. Oliver 
 Hisey v. Troutman 
 Hislop V. Moldenhauer 
 Hitchcock V. Bacon 
 Hitner v. Ege 
 Hoag V. Carpenter 
 Hoagland v. Crum 
 
 V. New York &c. R. Co. 
 349, 352, 
 Hobart v. Murray 
 Hobbs V. Batory 76, 
 
 Hockenbury v. Snyder 
 Hodge V. Giese 
 Hodgeden v. Hubbard 
 Hodgen v. Guttery 
 Hodges V. Fries 
 
 V. Howard 
 
 V. Shields 
 Hodgkin v. McVeigh 
 Hodgkins V. Price 272, 502 
 
 V. Robson 
 Hodson V. Sharpe 
 
 647, 685, 700 
 
 187 
 
 491 
 
 324 
 
 12 
 
 1 
 
 38 
 
 573 
 
 461 
 
 378 
 
 29, 38 
 
 382 
 
 382 
 
 428, 668 
 
 465 
 
 349 
 
 121 
 
 637 
 
 473, 496 
 
 136, 676 
 
 «5, 74, 404 
 
 91 
 
 152 
 
 Hoerdt v. Hahne 
 
 
 543 
 
 Hoffar V. Dement 
 
 29, 
 
 655 
 
 Hoffman v. Clark 
 
 33, 
 
 563 
 
 V. McCollum 
 
 169, 
 
 210 
 
 V. Stigers 
 
 
 87 
 
 Hogg V. Reynolds 
 
 328, 
 
 460 
 
 Hogsett V. Ellis 2, 13 
 
 , 30, 
 
 696 
 
 Holbrook v. Chamberlin 
 
 
 402 
 
 V. Tirrell 
 
 
 541 
 
 V. Young 
 
 
 363 
 
 Holden v. Purefoy 
 
 
 35 
 
 Holden &c. Asso. v. Wann 
 
 
 709 
 
 Holder v. Taylor 
 
 
 319 
 
 Holdsworth v. Tucker 
 
 
 139 
 
 Holford V. Dunnett 
 
 
 628 
 
 V. Hatch 
 
 445, 
 
 467 
 
 Holladay v. Chicago Arc Light 
 
 &c. Co. 36, 37, 40 
 
 Holland v. Cole 466 
 
 Holley V. Metcalf 202 
 
 V. Young 144, 340 
 
 Holliday v. Aehle 432 
 
 V. Marshall 379, 439 
 
 V. Noland 447 
 
 Hollingsworth v. Stennett 555 
 
 Hollis V. Burns 216 
 
 V. Edwards 147 
 
 V. Pool 170, 192, 221, 254, 256 
 
 
 381 
 
 
 681 
 
 614, 
 
 617 
 
 
 270 
 
 
 5 
 
 
 582 
 
 
 59 
 
 80, 
 
 318 
 
 334, 
 
 456 
 
 
 543 
 
 
 568 
 
 
 216 
 
 
 680 
 
 628, 
 
 629 
 
 
 542 
 
 116, 
 
 670 
 
 352a, 
 
 365 
 
 
 41 
 
 , 201, 
 
 202 
 
 
 702 
 
 
 163 
 
 
 558 
 
 34, 
 
 689 
 
 369, 
 
 370 
 
 
 160 
 
 
 689 
 
 
 699 
 
 , 517 
 
 562 
 
 
 365 
 
 
 363 
 
 Holloway v. Galliac 
 
 
 698 
 
 Holly V. Brown 
 
 
 483 
 
 V. Holly 
 
 
 422 
 
 Holman v. Bonner 
 
 
 695 
 
 V. Delin 
 
 
 465 
 
 Holmead v. Maddox 
 
 123, 
 
 124 
 
 Holmes v. Blogg 
 
 
 92 
 
 V. Seely 
 
 
 90 
 
 V. Shepard 
 
 
 346 
 
 Holt V. Martin 
 
 81, 
 
 703 
 
 Holton V. Noble 
 
 
 129 
 
 Holtzapffel v. Baker 
 
 
 405 
 
 Holwin V. De Lin 
 
 
 659 
 
 Holzderber v. Forrestal 
 
 
 154 
 
 Home &c. Ins. Co. v. Sherman 
 
 360 
 
 Home L. Ins. Co. v. Pierce 
 
 
 496 
 
 Honore v. Murray 
 
 
 666 
 
 Honzik v. Delaglise 
 
 
 726 
 
 Hood V. Mathis 
 
 
 655 
 
 Hook V. Garfield Coal Co. 
 
 
 637 
 
 Hooker v. Banner 
 
 
 397 
 
 Hooper v. Broderick ' 
 
 
 384 
 
 V. Clark 
 
 
 331 
 
 V. Cummings 
 
 109, 
 
 446 
 
 V. Farnsworth 
 
 
 104 
 
 Hoopes V. Meyer 
 
 
 361 
 
 Hooton V. Holt 
 
 6, 
 
 254 
 
 Hoots V. Graham 
 
 
 558 
 
 Hoover &c. Co. v. Pacific Oil Co. 
 
 157 
 
 Hopkins v. Gilman 
 
 
 346 
 
 V. Holland 
 
 
 12 
 
 V. McClelland 
 
 
 530 
 
 V. RatlifE 18, 
 
 373, 
 
 590
 
 TABLE OF CASES, 
 
 Iv 
 
 IBeferences are to Sections.] 
 
 Hopping V. Burnam 
 
 
 71 
 
 Hudson V. Wheeler 
 
 
 
 696 
 
 Hopwood V. Barefoot 
 
 
 415 
 
 Hudson Canal Co. v. 
 
 Pennsyl- 
 
 
 Morgan v. Krumwiede 
 
 
 136 
 
 vania Coal Co. 
 
 
 
 375 
 
 Horner v. Leeds 
 
 
 59 
 
 Huff V. Markham 324, 
 
 325, 
 
 512, 
 
 565 
 
 Horsefall v. Mather 
 
 
 628 
 
 V. Nickerson 
 
 
 
 318 
 
 Horsey v. Horsey 
 
 
 221 
 
 V. Walker 
 
 
 
 89 
 
 Horton v. Miller 
 
 
 673 
 
 V. Watkins 
 
 
 
 49 
 
 Horwitz V. Davis 
 
 
 461 
 
 Huffman v. McDaniel 
 
 
 
 60 
 
 Hosford V. Ballard 
 
 
 525 
 
 V. Pollard 
 
 
 
 28 
 
 Hosher v. Hestermann 
 
 
 103 
 
 V. Starks 
 
 
 152, 
 
 153 
 
 Hoskins v. Rhodes 
 
 
 52 
 
 Hug V. Van Burkleo 
 
 
 
 346 
 
 Hoslie V. Yokel 
 
 155, 
 
 568 
 
 Huggall V. McKean 
 
 
 592, 
 
 593 
 
 Hough V. Birge 
 
 3, 
 
 655 
 
 Hughes, Appeal of 
 
 
 
 89 
 
 V. Brown 486, 
 
 488, 
 
 539 
 
 V. Chatham 
 
 
 
 20 
 
 Houghton V. Moore 
 
 
 103 
 
 V. Hood 
 
 
 
 367 
 
 House V. Burr 
 
 154, 
 
 337 
 
 V. Mason 
 
 
 
 34 
 
 V. Jackson 
 
 
 98 
 
 V. Robotham 
 
 
 428, 
 
 429 
 
 V. Metcalf 
 
 
 607 
 
 V. "Vanstone 
 
 
 404, 
 
 629 
 
 Houston V. Farris 
 
 563, 
 
 682 
 
 V. Watt 
 
 
 
 689 
 
 V. Laffee 
 
 
 37 
 
 V. Windpfennig 
 
 
 341, 
 
 343 
 
 Houts V. Showalter 
 
 
 572 
 
 V. Young 
 
 412, 
 
 413, 
 
 690 
 
 Hovenden v. Annesley 
 
 
 474a 
 
 Hukill V. Guffey 
 
 
 
 492 
 
 Hovey v. Walker 
 
 
 672 
 
 Hulett V. Inlow 
 
 
 
 87 
 
 How V. Broom 
 
 
 365 
 
 V. Nugent 
 
 
 
 77 
 
 V. Norton 
 
 
 650 
 
 V. Stockwell 
 
 
 
 445 
 
 Howard v. Britton 
 
 
 435 
 
 Huling V. Roll 
 
 
 
 553 
 
 V. Carpenter 
 
 1^ 
 
 [, 83 
 
 Hull V. Stogdell 
 
 
 
 656 
 
 V. Ellis 
 
 
 431 
 
 V. Vaughan 
 
 
 33, 
 
 354 
 
 V. Fessenden 
 
 713, 
 
 716 
 
 Humble v. Langston 
 
 
 449, 
 
 451 
 
 V. Hill 
 
 
 34 
 
 Hume Bros. v. Taylor 
 
 
 
 496 
 
 V. Merriam 
 
 
 428 
 
 Humiston &c. Co. v. Wheeler 
 
 
 V. Shaw 
 
 29, 30 
 
 102, 
 
 103, 
 
 358, 
 
 549 
 
 Howcott V. Collins 
 
 
 666 
 
 Humphreston's Case 
 
 
 
 95 
 
 Howe V. Gregory 
 
 
 12 
 
 Humphreville v. Billinger 
 
 
 356 
 
 Howell V. Behler 
 
 13, 
 
 345 
 
 Humphrey v. Wait 
 
 
 
 576 
 
 V. Foster 
 
 
 53 
 
 Humphries v. Humphries 
 
 
 254 
 
 V. Howell 
 
 182, 
 
 190 
 
 V. Smith 
 
 
 
 234 
 
 V. Schenck 
 
 569, 
 
 570 
 
 Hundley v. Moore 
 
 
 
 465 
 
 Howeth V. Anderson 
 
 
 393 
 
 Hunnewell v. Bangs 
 
 
 388, 
 
 486 
 
 Howland v. CoflSn 
 
 
 650 
 
 Hunstock V. Palmer 
 
 
 
 122 
 
 V. Leach 
 
 
 324 
 
 Hunt V. Bailey 
 
 
 202, 
 
 267 
 
 V. White 423, 
 
 431, 
 
 513 
 
 V. Brown 
 
 
 
 368 
 
 Hoy V. Gronable 
 
 
 140 
 
 V. Coe 
 
 
 159, 
 
 440 
 
 V. Holt 
 
 
 392 
 
 V. Comstock 
 
 
 
 6 
 
 Hoyle V. Bush 
 
 
 99 
 
 V. Cope 
 
 
 
 354 
 
 Hoyleman v. Kanawha &c. 
 
 R. Co. 
 
 V. Danforth 
 
 329, 
 
 332, 
 
 377 
 
 
 629, 
 
 631 
 
 V. D'Orval 
 
 
 
 140 
 
 Hoyt V. Wilkinson 
 
 
 451 
 
 V. Dowman 
 
 
 
 16 
 
 H. R. E. &c. Assn. v. Cochran 
 
 216 
 
 V. Gardner 
 
 
 447, 
 
 453 
 
 Hubbard v. Ensign 
 
 
 462 
 
 V. Hazelton 
 
 
 
 74 
 
 V. Quisenberry 
 
 
 28 
 
 V. Matthews 
 
 
 
 49 
 
 V. Russell 
 
 
 604 
 
 V. Morton 
 
 
 
 197 
 
 V. Shaw 
 
 
 635 
 
 V. Thompson 
 
 
 430. 
 
 658 
 
 V. Town 
 
 
 381 
 
 Hunter v. Frost 
 
 196, 
 
 252, 
 
 297 
 
 Hubble V. Cole 368 
 
 631, 
 
 633 
 
 V. Giddings 
 
 
 158, 
 
 437 
 
 Hubner v. Feige 
 
 
 487 
 
 V. Jones 
 
 
 
 570 
 
 Huddell, In re 
 
 411, 
 
 455 
 
 V. Karcher 
 
 
 
 262 
 
 Hudgins v. Wood 
 
 
 50 
 
 V. Reiley 
 
 
 364, 
 
 674 
 
 Hudson V. Jones 
 
 
 95 
 
 V. Silvers 
 
 
 
 337 
 
 V. Porter 
 
 
 569 
 
 Huntington v. Knox 
 
 
 158, 
 
 660 
 
 V. Stewart 
 
 
 433 
 
 V. Parkhurst 
 
 
 194, 
 
 197
 
 Ivi 
 
 TABLE OF CASES. 
 
 [References are to Sectiona.l 
 
 Hurd V. Darling 53 
 
 V. Whitsett 215, 219 
 
 Hurley v. Lamoreau 651 
 
 Huron v. Kerr 160 
 
 Hurtt V. Woodland 545 
 
 Huston V. Field 662 
 
 Hutcheson v. Hodnett 91 
 
 V. Jones 538 
 
 Hutchings v. Commercial Bank 547 
 
 Hutcliins V. Dresser 89 
 
 V. Hodges 665 
 
 V. Weldin 120 
 
 Hutchinson v. Bramhall 163 
 
 V. Cummings 589, 593 
 
 V. Potter 310 
 
 V. Ulrich 464 
 
 Hutton V. Powers 657 
 
 V. Warren 203, 631 
 
 Huyser v. Chase 180, 296 
 
 Hyatt V. Third Baptist Church 75 
 
 V. Wood 33, 558, 647 
 
 Hyde v. Skinner 343 
 
 Hyman v. Jockey Club &c. Co. 
 
 354, 365 
 Hynes v. Ecker 465 
 
 I 
 
 Ibbs V. Richardson 207, 227, 554 
 
 Iddings V. Nagle 68, 569 
 
 Iggulden V. May 67, 343, 462 
 
 Illingworth v. Mittenberger 502 
 
 Illinois &c. R. Co. v. Baltimore 
 
 &c. R. Co 565 
 
 Inches v. Dickinson 448 
 
 Indian &c. Co. v. Sikes 382 
 
 Indianapolis v. Kingsbury 87 
 
 Indianapolis &c. Union Co. v. 
 
 Cleveland &c. R. Co. 446, 469, 473 
 Indianapolis &c. R. Co. v. First 
 
 Nat. Bank 195, 197, 514, 661 
 
 Indianapolis Nat. Gas Co. v. 
 
 Spaugh 
 Ingalls V. Hobbs 
 Ingraham v. Baldwin 
 Ingwersen v. Rankin 
 Inhabitants &c. v. Jones 
 Inman v. Morris 
 
 V. Stamp 
 Insurance &c. Co. v. 
 
 99 
 578 
 697 
 604 
 713 
 654 
 24, 147 
 National 
 
 Bank &c. 338, 339, 340 
 
 Insurance Co. of Penn. v. O'Con- 
 
 nell 5 
 
 International &c. R. Co. v. Rags- 
 dale 646 
 International Trust Co. v. Schu- 
 mann 356 
 V. Shumann 358 
 Intfen v. Foster 555 
 Ireland v. Nichols 496 
 Ireton v. Ireton 694 
 
 Irvine v. Scott 238 
 
 V. Wood 603 
 Irving V. Thomas 126, 661 
 
 Irwin V. Covode 632 
 
 V. Cox 251 
 
 Isaacs V. Holland 88 
 Island Coal Co. v. Combs 
 
 483, 488, 496, 503 
 
 Ittner v. Robinson 415 
 
 Ivay V. Hedges 620 
 
 Ives V. Ives 558 
 
 V, Van Bpps 368 
 
 V. Williams 202 
 
 Jack V. Carneal 19 
 
 Jackson v. Aldrich 33, 186 
 
 v. Allen 498 
 
 v. Anderson 541 
 V. Andrew 632, 636, 639 
 
 V. Ayers 696, 697 
 
 V. Babcock 475 
 
 V. Barringer 98 
 
 V. Bradt 197 
 V. Brownson 98, 625, 636 
 
 V. Bryan 175 
 
 V. Bull 84 
 
 V. Cairns 88 
 
 V. Collins 504 
 
 V. Corliss 466 
 
 V. Crysler 496 
 
 V. Davis 703 
 V. Delacroix 141, 143, 146 
 
 V. Eddy 360 
 V. Farmer 338, 558, 559 
 
 v. Groat 454 
 
 V. Harper 479, 688 
 V. Harrison 420, 467, 503 
 
 V. Harsen 225, 479 
 
 V. Hughes 251, 431 
 
 V. Kingsley 29 
 V. Kisselbrack 142, 146, 481 
 
 V. Livingston 254 
 
 V. McConnell 88 
 
 v. McLeod 203 
 
 V. Mancius 477, 479 
 
 v. Mowry 2 
 
 V. Murray 84 
 
 V. Odell 580 
 
 V. Page 541 
 
 V. Patterson 136 
 
 V. Perrine 99 
 
 V. Pesked 626, 641 
 
 V. Robinson 422 
 
 V. Rogers 176 
 
 V. Rowland 703 
 
 V. Salmon 203, 251 
 
 V. Schoonmaker 60 
 
 V. Silvernail 466, 467 
 
 V. Spear 688, 702
 
 TABLE OF CASES. 
 
 Ivii 
 
 iBeferences are to Sections.} 
 
 688 
 
 653 
 
 474a 
 
 633 
 
 438 
 
 142 
 
 474a, 478 
 
 11 
 
 474a 
 
 98 
 
 197 
 
 Philadelphia 
 
 37 
 
 Jackson v. Stiles 
 
 V. Stone 
 
 V. Thomas 
 
 V. Tibbets 
 
 V. Titus 
 
 V. Van Hoesen 
 
 V. Vincent 
 
 V. Vosburgh 
 
 V. Wheeler 
 
 V. Wilkinson 
 
 V. Wilsey 
 Jackson &c. Co. v. 
 
 &c. R. Co. 
 Jacksonville &c. R. Co. v. Hooper 389 
 Jacques v. Short 456 
 
 Jaffe V. Harteau 576, 579, 585 
 
 Jaffray v. Greenbaum 135 
 
 Jamaica v. Hart 533, 683 
 
 James v. Belding 682 
 
 V. Cochrane 319 
 
 V. Dean 184 
 
 V. Kibler 17, 337 
 
 V. Landon 688 
 
 V. Patterson 
 
 V. Russell 
 Jamesin v. Thomen 
 Janes v. Jenkins 
 Janney v. Goehringer 
 January v. Stephenson 
 Jaques v. Gould 
 Jarboe v. Mulry 
 J. B. Alfree Mfg. Co. v. Henry 
 Jefcoat V. Gunter 
 Jeffers v. Easton 
 Jefferson v. Jameson &c. Co. 
 
 V. Jefferson 
 Jeffryes v. Evans 
 Jellett V. Rhode 
 Jemison v. McDaniel 
 Jenkins v. Eldredge 
 
 V. Green 
 
 V. Jenkins 
 
 V. Jenkins Univ. 
 Jenks V. Edwards 
 Jenner v. Morgan 
 Jennings v. Bond 
 
 v. McComb 
 
 V. Sparkman 
 
 V. Van Schaick 
 
 30 
 
 682 
 
 414 
 
 381 
 
 379 
 
 8 
 
 111, 393 
 
 100 
 
 1 
 
 369 
 
 435 
 
 597 
 
 626 
 
 134 
 
 152 
 
 675 
 
 142, 143, 146 
 
 63 
 
 268, 503, 514 
 
 70 
 
 367 
 
 667 
 
 358, 363 
 
 152 
 
 165 
 
 618 
 
 Jersey City &c. Co. v. United Gas 
 
 Imp. Co. 
 Jessen v. Sweigert 
 Jewell V. Harding 
 
 V. Woodman 
 Jewett V. Berry 
 Jochen v. Tibbells 
 John Morris Co. v. 
 
 Johns V. McDaniel 
 
 V. Whitley 
 Johnson v. Albertson 
 
 415 
 
 601, 607 
 
 655 
 
 568 
 
 503 
 
 348, 694 
 
 Southworth 
 
 628, 679 
 
 257, 298 
 
 569 
 
 482, 
 
 47 
 197, 
 
 217 
 
 Johnson v. Branch 
 
 v. Carter 
 
 V. Chely 
 
 v. Church Wardens 
 
 V. Collins 587, 
 
 V. Dixon 
 
 V. Donaldson 
 
 222, 223, 225, 
 
 V. Doss 
 
 V. Douglass 
 
 V. Foreman 
 
 v. Gurley 
 
 v. Hannahan 
 
 V. Hauser 
 
 v. Hoffman 
 
 V. Johnson 
 
 V. Kellogg 
 
 V. King 
 
 V. Knapp 
 
 V. Lewis 
 
 V. May 
 
 V. Muzzy 
 
 V. Oppenheim 
 
 V. Phcenix &c. Ins. Co 
 
 V. Reading 
 
 V. Shank 
 
 V. Sherman 
 
 V. Stewart 
 
 V. Tacoma &c. Co. 
 
 V. Wilkinson 
 
 V. Wilson 
 Johnston v. Bates 
 
 V. Glancy 
 
 v. Haines 
 
 V. Hargrove 
 
 v. Jones 
 
 v. Smith 
 Johnstone v. Huddlestone 
 Jolly V. Single 
 Jonas V. Noel 
 Jones V. Adams 
 
 V. Barnes 
 
 V. Brewer 
 
 V. Carter 
 
 V. Dore 
 
 V. Durrer 
 
 V. Freidenberg 
 
 V. Hill 
 
 V. Hoard 
 
 V. Jones 
 
 V. Kroll 
 
 V. Leeman 
 
 V, Marsh 
 
 V. Millsaps 
 
 V. Neale 
 
 V. O'Farrel 
 
 V. Parker 
 
 V. Reed 
 
 V. Reynolds 
 
 V. Richardson 
 
 V. Rigby 
 
 491, 
 
 31 
 
 328, 
 
 159, 160 
 220 
 
 126 
 
 334 
 
 594. 596 
 
 598, 628 
 
 230, 311 
 
 422 
 
 496 
 
 210, 212 
 
 487, 495 
 
 558 
 
 31, 563 
 
 , 54, 645 
 
 247, 428 
 
 98 
 
 322 
 
 462 
 
 604 
 
 650 
 
 80, 670 
 
 681 
 
 71, 141 
 
 440 
 
 289 
 
 456, 459 
 
 295 
 
 579 
 
 43 
 
 128 
 
 456 
 
 160 
 
 72 
 
 503, 534 
 
 87 
 
 422 
 
 251 
 
 22, 497 
 
 369 
 
 656 
 
 447 
 
 89 
 
 495, 501 
 
 699 
 
 53, 500 
 
 605 
 
 572 
 
 129, 373 
 
 , 32, 464 
 
 336 
 
 640 
 
 272, 273 
 
 612 
 
 541 
 
 378 
 
 447, 454 
 
 503, 523 
 
 146 
 
 494 
 
 421
 
 Iviii 
 
 TABLE OF CASES. 
 
 [References are to Sections.l 
 
 Jones V. Roberts 138 
 
 V. Rushmore 539 
 
 V. Shay 179 
 
 V. Shears 207, 208 
 
 V. Shufflin 726 
 
 V. Smith 658 
 
 V. Springfield &c. Co. 675 
 
 V. Temple 178, 183, 314 
 
 V. Thomas 572 
 
 V. Willis 216, 253 
 
 Jordan v. Davis 83 
 
 V. Katz 3, 693 
 
 V. Lindsay 56 
 
 V. Pollock 541 
 
 V. Staples 63 
 
 V. Woodward 642 
 
 Joslin V. Ervein 444 
 
 Josslyn V. McCabe 716 
 
 Jouitt V. Lewis 451 
 
 Jourdain v. Wilson 331 
 
 Jourgensen v. Fraitel 142 
 
 Journeay v. Brackley 455, 461 
 
 Joy V. McKay 186, 280 
 
 Joyce V. Martin 603, 604, 608 
 
 Judd V. Arnold 157 
 
 V. Fairs 197 
 
 Judik V. Crane 542 
 
 Junction R. Co. v. Harris 87 
 
 Juneman v. Franklin 688 
 
 Jungerman v. Bovee 718 
 
 Justice V. Lowe 490, 491 
 
 K 
 
 Kabley v. Worcester Gas L. Co. 
 
 5, 77, 79, 141, 143, 144 
 
 Kabus V. Frost 592 
 
 Kahn v. Love 404, 601 
 
 Kalis V. Shattuck 606, 607 
 
 Kamerick v. Castleman 47, 52, 54 
 
 Kamphouse v. Gaffner 37 
 
 Kampinsky v. Halls 594 
 
 Kane v. Mink 363 
 Kankakee &c. R. Co. v. Horan 197 
 
 Kansas Inv. Co. v. Carter 357 
 
 Kash V. Huncheon 375 
 
 Kaufman v. Clark 404 
 
 V. Cook 176, 229 
 
 Kean v. Kolkschneider 367 
 
 Keates v. Cadogan 579, 580, 612 
 Keating v. Springer 
 
 354, 355, 356, 381 
 
 Keaton v. Thomasson ' 3 
 
 Keats V. Hugo 106, 381 
 
 Keay v. Goodwin 227, 228, 422, 668 
 
 Keech v. Hall 254 
 
 Keefe v. Furlong 713 
 
 Keegan v. Kinnaire 132, 201, 205 
 
 Keeler v. Davis 497 
 
 v. Eastman 636 
 
 v. Green 383 
 
 Keeley Brewing Co. v. Mason 
 
 438, 439 
 Keeling v. Kuhn 42 
 
 Kehr v. Hall 683 
 
 Keiper v. Klein 381 
 
 Kellam v. Janson 228, 559 
 
 Kellenberger v. Foresman 
 
 588, 628, 629, 679 
 
 Keller v. Klopfer 87 
 
 Kelley v. Weston 53 
 
 Kellogg v. Groves 289, 555 
 
 V. Kellogg 29 
 
 V. King 63, 642 
 
 V. Robinson 331 
 
 Kellum V. Berkshire L. Ins. Co. 
 
 
 195, 
 
 421, 
 
 427 
 
 Kelly V. Bowerman 
 
 
 
 430 
 
 V. Chicago &c. R. Co. 
 
 132, 
 
 375 
 
 V. Clancy 
 
 
 
 563 
 
 V. Davis 
 
 
 370, 
 
 371 
 
 V. Dutch Church 
 
 
 361, 
 
 369 
 
 V. Waite 
 
 148, 
 
 187, 
 
 192 
 
 Kelsey v. Ward 
 
 
 
 673 
 
 Kelso V. Crilly 
 
 
 
 205 
 
 Kemp V. Bird 
 
 
 
 382 
 
 V. Derrett 
 
 
 
 261 
 
 Kempner v. Heidenheimer 
 
 
 140 
 
 Kenada v. Gardner 
 
 
 
 29 
 
 Kendall v. Garland 81, 
 
 430, 
 
 658, 
 
 661 
 
 V. Hill 
 
 
 
 391 
 
 V. Moore 
 
 
 555, 
 
 662 
 
 Kendall &c. Co. v. Bain 
 
 
 
 73 
 
 Kennedy v. Lee 
 
 
 
 138 
 
 Kenney v. Doe 
 
 
 
 703 
 
 V. Parks 
 
 
 
 438 
 
 V. Sweeney 
 
 
 221, 
 
 225 
 
 V. Wentworth 
 
 
 
 116 
 
 Kenny v. Barns 
 
 
 
 616 
 
 V. Collier 
 
 
 369, 
 
 371 
 
 Kent V. Kent 
 
 
 
 154 
 
 V. Waite 
 
 
 
 104 
 
 Kentucky &c. Co. v. 
 
 Common- 
 
 
 wealth 
 
 
 
 486 
 
 Kentucky &c. R. Co. v. 
 
 Higgins 
 
 645 
 
 Kepley v. Scully 
 
 
 699, 
 
 705 
 
 Kerley v. Mayer 
 
 
 
 383 
 
 Kern v. Myle 
 
 
 579, 
 
 584 
 
 Kernochen v. Wilkens 
 
 
 180, 
 
 199 
 
 Kerr v. Clark 
 
 
 
 197 
 
 v. Day 
 
 
 387, 
 
 454 
 
 v. Kingsbury 
 
 
 
 720 
 
 V. Merchants' Exch 
 
 Co. 
 
 
 
 
 102, 
 
 474, 
 
 677 
 
 v. Simmons 
 
 
 
 554 
 
 Kerrains v. People 
 
 
 
 20 
 
 Kershaw v. Kershaw 
 
 
 
 77 
 
 Kerwhacker v. Cleveland &c. R. 
 
 
 Co. 
 
 
 
 307 
 
 Ketsy's Case 
 
 
 
 92 
 
 Kew v. Trainor 
 
 
 
 
 326, 431, 
 
 464, 
 
 472, 
 
 487
 
 TABLE OF CASES. 
 
 Hx 
 
 [References are to Sections.] 
 
 Keyes v. Dearborn 60 
 
 Keys V. Forrest 703 
 
 Keyse v. Powell 110 
 
 Kldd V. Dennison 632, 635, 636 
 
 Kidder v. Hunt 159 
 
 Kiernan v. Germain 540, 673 
 
 V. Linnehan 30 
 
 V. Sanders 682 
 
 V. Terry 126, 682, 688, 702 
 
 Kiersted v. Orange &c. R. Co. 
 
 81, 652, 658, 660 
 
 Kiester v. Miller 
 
 
 538 
 
 Kieth V. Paulk 
 
 
 651 
 
 Kile V. Giebner 
 
 
 725 
 
 Kilpatrick v. Harper 
 
 
 55 
 
 Kimball v. Cross 
 
 5, 
 
 340 
 
 V. Doggett 
 
 672, 
 
 673 
 
 V. Grand Lodge &c. 
 
 
 361 
 
 V. Hilton 
 
 
 640 
 
 V. Pike 
 
 
 422 
 
 V. Rowland 
 
 473, 
 
 517 
 
 V. Sumner 
 
 
 626 
 
 Kimpton v. Walker 
 
 321, 
 
 447 
 
 King V. Anderson 
 
 
 670 
 
 V. Bird 
 
 
 363 
 
 V. Connolly 
 
 
 280 
 
 V. Crocheron 
 
 
 541 
 
 V. Davies 
 
 
 501 
 
 V. Edwards 
 
 
 319 
 
 V. Foscue 
 
 
 570 
 
 V. Housatonic R. Co. 
 
 421, 
 
 422 
 
 V. Lawson 
 
 
 190 
 
 V. Miller 
 
 
 636 
 
 V. Reynolds 
 
 367, 
 
 367a 
 
 V. Stock 
 
 
 19 
 
 V. Whittle 
 
 
 571 
 
 V. Wilson 
 
 
 343 
 
 V. Woodruff 
 
 199, 
 
 200 
 
 Kingdon v. Nottle 
 
 
 332 
 
 Kingsbury v. Powers 
 
 
 416 
 
 V. Westfall 
 
 
 676 
 
 Kingsley v. Siebrecht 
 
 
 
 151, 156, 158, 
 
 437, 
 
 440 
 
 Kingston v. Preston 
 
 
 324 
 
 Kinlyside v. Thornton 
 
 
 626 
 
 Kinnersley v. Orpe 
 
 
 467 
 
 Kinney v. Harrett 
 
 
 89 
 
 V. Watts 
 
 
 351 
 
 Kinsey v. Minnick 
 
 
 549 
 
 Kinsley v. Ames 223, 
 
 230, 
 
 293 
 
 Kinsman v. Greene 
 
 
 85 
 
 Kirby v. Boylston &c. Asso 
 
 
 
 601, 
 
 602, 
 
 618 
 
 Kirchgassner v. Rodick 
 
 1, 40 
 
 Kirk V. Mattier 
 
 
 41 
 
 Kirkpatrick v. Peshine 
 
 
 384 
 
 Kirtland v. Pounsett 
 
 
 29 
 
 Kirton v. Eliott 
 
 
 92 
 
 Kising V. Stannard 
 
 
 228 
 
 Kistler v. Wilson 354, 
 
 356, 
 
 359 
 
 404, 591, 
 
 41, 
 
 Kitchen v. Cape Girardeau &c. 
 
 R. Co. 
 Kitchen v. Smith 412, 
 
 Kittle V. St. John 71, 164, 
 
 Kleespies v. McKenzie 201, 
 
 Klie V. Von BroocR 632, 633, 
 Kline v. Jacobs 
 
 V. Johnston 
 
 V. McLain 
 Kling V. Dress 
 Klingle v. Ritter 
 Knapp V. Anderson 
 Knecken v. Voltz 
 Knefel v. Daly 
 Knerr v. Bradley 
 Knight V. Cox 
 
 V. Indiana Coal Co. 
 
 V. Old 
 
 V. Orchard 
 Knipe v. Palmer 
 Knoeppel v. Kings County F. 
 
 Ins. Co. 
 Knorr v. Raymond 
 Knotsford v. Gardiner 
 Knowles v. Hull 1, 
 
 V. Maynard 
 
 V. Murphy 
 
 V. Steele 
 Knox V. Marshall 
 Koeber v. Somers 
 Koehler v. Scheider 
 Koeleg V. Phelps 
 Koenig v. Miller Bros. &c. Co. 
 Kohne v. White 
 Kolasky v. Michels 
 Kollock V. Scribner 
 Koplitz V. Gustavus 
 Kornegay v. Collier 
 Kortjohn v. Seimers 
 Kraft V. Welch 
 Kramer v. Cook 154, 337, 340, 
 Krapp V. Crawford 
 Krause v. Kraus 
 Kreiss v. Seligman 
 Krider v. Ramsay 
 
 563, 
 140, 
 
 337, 338, 
 148, 
 
 380, 
 
 Krueger v. Ferrant 
 Krug V. Davis 
 Kugel V. Painter 
 Kuhn V. Kuhn 
 
 V. Smith 
 Kunzie v. Wixom 
 Kurrus v. Seibert 
 Kutter V. Smith 
 Kyle V. Proctor 
 
 V. Stocks 
 Kyte V. Keller 
 
 Lacey v. Newcomb 
 Lachman v. Deisch 
 
 429, 431. 
 446, 
 576, 
 
 177, 
 
 375, 376, 
 
 289, 
 
 127 
 413 
 538 
 215 
 638 
 373 
 682 
 613 
 391 
 564 
 673 
 319 
 682 
 
 34 
 697 
 174 
 659 
 486 
 
 75 
 
 108 
 426 
 171 
 
 348 
 671 
 702 
 369 
 54 
 351 
 261 
 486 
 543 
 410 
 345 
 343 
 180 
 422 
 127 
 384 
 405 
 319 
 435 
 121 
 445, 
 659 
 612 
 2 
 114 
 262 
 255 
 257 
 561 
 716 
 554 
 476 
 568 
 
 9 
 641
 
 TABLE OF CASES. 
 
 IReferences are to Sections.1 
 
 Ladd V. Brown 
 
 
 
 153 
 
 Lawrence v. Dole 
 
 
 323 
 
 V. Hawkes 
 
 
 
 373 
 
 V. French 
 
 
 669 
 
 V. Riggle 
 
 11, 
 
 257, 474a | 
 
 V. Hasbrouck 
 
 75, 
 
 217 
 
 V. Robinson 
 
 
 
 55 
 
 V. Lawrence 
 
 
 541 
 
 V. Shattock 
 
 
 
 635 
 
 Lawrenson v. Butler 
 
 
 387 
 
 V. Smith 
 
 
 
 548 
 
 Lawry v. Lawry 
 
 626, 
 
 641 
 
 Ladner v. Balsley 
 
 
 
 129 
 
 Lawton v. Salmon 
 
 
 710 
 
 Lady Anne Fry's Case 
 
 
 
 327 
 
 Lay V. Bennett 
 
 
 360 
 
 La Farge v. Halsey 
 
 
 
 364 
 
 Layman v. Throp 
 
 
 255 
 
 Laffan v. Naglee 
 
 
 
 454 
 
 Lea V. Hernandez 
 
 112, 
 
 170 
 
 Laguerenne v. Dougherty 
 
 
 202 
 
 Leach v. Goode 
 
 
 412 
 
 Laird v. Boyle 
 
 
 
 343 
 
 Leadbetter v. Roth 
 
 
 360 
 
 V. Mantonya 
 
 
 447, 
 
 448 
 
 Leader v. Homewood 
 
 
 716 
 
 Lake v. Campbell 71 
 
 , 74, 
 
 157, 
 
 171 
 
 Leadlay v. McRoberts 
 
 
 157 
 
 Lake Erie & W. R. Co 
 
 . V. 
 
 Ken- 
 
 
 League v. Snyder 
 
 
 695 
 
 nedy 
 
 
 37 
 
 , 42 
 
 Leahy v. Lubman 
 
 
 261 
 
 Lakin v. Roberts 
 
 
 
 2 
 
 Learoyd v. Godfrey 
 
 
 599 
 
 Lamar v. McNamee 
 
 
 540, 
 
 543 
 
 Leary v. Meier 
 
 288, 
 
 514 
 
 Lamb v. Brewster 
 
 
 
 413 
 
 Leavitt v. Fletcher 392, 
 
 396, 
 
 405, 
 
 Lambert v. Borden 
 
 
 
 201 
 
 408 
 
 , 593, 
 
 600 
 
 Lamberton v. Stouffer 
 
 
 
 656 
 
 V. Leavitt 
 
 
 197 
 
 Lambeth v. Warner 
 
 
 
 636 
 
 Ledoux V. Jones 
 
 
 549 
 
 Lametti v. Anderson 
 
 
 332, 
 
 377 
 
 Ledsinger v. Burke 
 
 
 550 
 
 Lamme v. Dodson 
 
 
 
 696 
 
 Leduke v. Barnett 
 
 
 468 
 
 Lamparter v. Wallbaum 
 
 
 596 
 
 Lee V. Lee 
 
 15, 62 
 
 Lampman v. Milks 
 
 
 
 381 
 
 V. McLaughlin 
 
 599, 
 
 602 
 
 Lamson v. Clarkson 
 
 
 
 703 
 
 V. Payne 445, 
 
 446, 
 
 682 
 
 Lancashire v. Mason 
 
 
 422, 
 
 703 
 
 V. Risdon 
 
 710 
 
 716 
 
 Land v. Fitzgerald 
 
 
 
 579 
 
 Leebrick v. Stable 
 
 
 164 
 
 Landon v. Townshend 
 
 
 
 190 
 
 Leeds v. Cheetham 
 
 405, 
 
 676 
 
 Lane v. King 
 
 
 
 572 
 
 L'Hussier v. Zallee 
 
 367, 
 
 563 
 
 V. Nelson 
 
 
 
 175 
 
 Legh V. Heald 
 
 
 63 
 
 V. Ruhl 
 
 
 
 270 
 
 Le Gierse v. Green 
 
 447, 
 
 455 
 
 V. State 
 
 
 
 56 
 
 Lehman v. Nolting 
 
 
 157 
 
 Lang V. Young 
 
 
 
 474 
 
 Lehow V. Simonton 
 
 
 462 
 
 Langan v. Schlief 
 
 
 
 268 
 
 Leiby v. Wilson 
 
 
 378 
 
 Langford v. Selmes 
 
 
 
 446 
 
 Leick V. Tritz 
 
 
 369 
 
 Langley v. Ross 
 
 
 
 487 
 
 Leiferman v. Osten 
 
 
 102 
 
 Lankford v. Green 
 
 
 650, 
 
 651 
 
 Leigh V. Shaw 
 
 
 63 
 
 Lanpher v. Glenn 
 
 102 
 
 675, 
 
 681 
 
 Leighton v. Ricker 
 
 
 414 
 
 Lansing v. Pine 
 
 
 
 428 
 
 Leishman v. White 
 
 364 
 
 365 
 
 V. Van Alstyne 
 
 
 
 460 
 
 Leitch V. Boyington 28, 
 
 426, 
 
 668 
 
 Lantman v. Miller 
 
 
 
 555 
 
 Leiter v. Pike 
 
 
 79 
 
 Lanyon v. Woodward 
 
 
 
 53 
 
 Leland v. Sprague 
 
 48, 53 
 
 Lapham v. Norton 
 
 
 29 
 
 655 
 
 Leman v. Best 
 
 
 718 
 
 La Point v. Scott 
 
 
 
 631 
 
 Lemar v. Miles 
 
 
 725 
 
 Larkin v. Avery 15, 
 
 197, 
 
 199, 
 
 232, 
 
 Lembeck &c. Co. v. Kelly 
 
 
 163 
 
 
 251 
 
 , 282 
 
 561 
 
 Lemington v. Stevens 
 
 71 
 
 713 
 
 Larned v. Clarke 
 
 
 
 30 
 
 Lenderking v. Rosenthal 
 
 
 138 
 
 V. Hudson 
 
 
 
 175 
 
 Leonard v. Armstrong 
 
 
 576 
 
 Larue v. Farren Hotel Co. 
 
 
 600 
 
 V. Burgess 
 
 
 430 
 
 Lask V. Ames 
 
 
 
 186 
 
 V. Kingman 
 
 
 2 
 
 Lassell v. Reed 
 
 
 
 573 
 
 V. Storer 
 
 599, 
 
 602 
 
 Lathrop v. Standard 
 
 Oil 
 
 Co. 
 
 2 
 
 V. White 
 
 
 107 
 
 Latta V. Weiss 
 
 
 448 
 
 449 
 
 Leopold V. Judson 
 
 
 363 
 
 Lattimore v. Harsen 
 
 
 135 
 
 136 
 
 Leppla V. Mackey 
 
 
 330 
 
 Laughran v. Smith 
 
 75 
 
 , 199 
 
 , 217 
 
 Lerch v. Sioux City Times Co. 
 
 132 
 
 Laurence v. Fox 
 
 
 
 462 
 
 Lerned v. Johns 
 
 158 
 
 437 
 
 Lausman v. Drahos 
 
 
 V 
 
 689 
 
 Lesley v. Randolph 
 
 261 
 
 310 
 
 Law V. Haley 
 
 
 
 108 
 
 Leslie v. Pounds 
 
 
 596 
 
 Lawrence v. Davey 
 
 
 
 136 
 
 V. Smith 
 
 
 373
 
 TABLE OF CASES. 
 
 Ixi 
 
 [References are to Sections.'] 
 
 Levering v. Langley 
 
 
 540 
 
 Levett V. Bickford 
 
 495, 
 
 496 
 
 Levey v. Dyess 
 
 
 393 
 
 Levitzky v. Canning 
 
 354, 357, 
 
 370 
 
 Lewes v. Ridge 
 
 
 462 
 
 Lewis v. Campau 
 
 
 125 
 
 V. Chisliolm 
 
 323, 324, 
 
 410 
 
 V. Clark 
 
 
 129 
 
 V. EflSnger 
 
 
 375 
 
 V. Fish 
 
 
 539 
 
 V. Havens 
 
 
 13 
 
 V. Hughes 
 
 504, 
 
 679 
 
 v. Jones 
 
 
 573 
 
 V. Lyman 
 
 53, 
 
 573 
 
 V. McNatt 
 
 
 566 
 
 V. Ocean Nav. &c. Co. 718 
 
 V. Payn 62, 129, 365 
 
 V. Perry 202 
 
 V. Ringo 257 
 
 V. St. Louis 521 
 
 V. Sheldon 431 
 
 Leydecker v. Brintnall 618 
 
 Libbey v. Staples 78, 318 
 
 V. Tolford 404, 588, 590 
 
 Liebe v. Nicolai 
 Lieber v. Blanc 
 
 661 
 593 
 
 Lieberthal v. Montgomery 675, 677 
 
 Liebeschutz v. Moore 
 Lieferman v. Osten 
 Lienow v. Ritchie 
 Liford's Case 
 Lightbody v. Truelsen 
 Lightfoot V. West 
 Linahan v. Barr 
 Lincoln Trust Co. v. 
 
 428 
 
 356 
 
 627, 641 
 
 653 
 
 22 
 
 402 
 
 713, 727 
 
 Nathan 392, 
 
 405 
 
 Linden v. Hepburn 490 
 
 v. Hooper 654 
 
 Lindenbower v. Bentley 640 
 
 Lindon v. Hooper 651 
 
 Lindley v. Dakin 421, 426, 427 
 
 V. Miller 381 
 
 Lindsey v. Leighton 84, 496, 597, 
 
 614 
 Lindsley v. Schnaider Brew. Co. 
 Line v. Stephenson 
 Linn v. Ross 
 Linton v. Hart 
 Lipsett V. Perdue 
 Lister v. Lane 
 Lithgow V. Moody 
 Little V. Dyer 
 
 V. Libby 
 V. McAdaras 
 V. Palister 
 V. Pearson 
 Little Rock &c. Co. v. 
 
 Little Valeria &c. Co. 
 
 bert 
 Littleton v. Clayton 
 
 462 
 
 350 
 
 675 
 
 668 
 
 95 
 
 397 
 
 255 
 
 128 
 
 2 
 
 596 
 
 190, 640 
 
 29 
 
 Shall 490, 
 
 491 
 
 V. Lam- 
 
 715 
 688 
 
 364, 
 464, 
 
 29, 225, 227, 
 
 490, 
 
 112, 310, 
 
 15, 
 693, 
 
 180, 
 
 Littleton v. Wynn 
 Livermore v. Eddy 
 Livingston v. L'Engle 
 
 V. Reynolds 
 
 V. Stickles 
 
 V. Sulzer 
 
 V. Tanner 
 
 V. Tompkins 
 Lloyd V. Cozens 
 
 V. Rosbee 
 Loach V. Farnum 
 Lobdell V. Keene 
 
 V. Mason 
 Lober v. Bangs 
 Lock V. Furze 
 Locke V. Coleman 
 
 V. Frasher 
 
 V. Homer 
 Lockett V. Fort Worth &c. R. 
 
 Co. 
 Lockwood V. Lockwood 
 
 V. Lunsford 
 
 V. Thunder Bay &c 
 Lodge V. White 
 Loeser v. Liebmann 
 Lofland v. Emory 
 Loft V. Dennis 
 Loftus' Case 
 Logan V. Anderson 
 
 V. Herron 
 Loker v. Damon 
 Lombard v. Kinzie 
 London v. Warfield 
 London &c. Bank v. Curtis 218, 
 London &c. R. Co. v. South 
 
 Eastern R. Co. 
 Long V. Bolen Coal Co. 
 
 V. Bonner 650, 
 
 V. Fitzsimmons 404, 628, 
 
 V. Gieriet 
 
 V. Seavers 
 
 V. Stafford 
 Longfellow v. 
 
 Co. 
 
 447, 
 234, 
 
 251, 
 
 Longfellow 
 
 340 
 11. 
 682, 
 
 Longshore v. Jack 
 Longworth v. Wolfinger 
 Loomis V. Wilbur 
 Looney v. McLean 576, 614, 
 
 Lord V. Brookfield 
 
 V. Walker 
 Loring v. Melendy 
 
 V. Taylor 
 Lorman v. Benson 
 Lorring v. Willis 
 Losee v. Buchanan 
 Lothrop V. Thayer 625, 
 
 Loudan v. Warfield 635, 
 
 Louer v. Hummel 
 Loughran v. Ross 716, 718, 
 Lounsbery v. Snyder 180, 
 
 Love V. Edmonston 32, 182, 
 
 1, 2 
 548 
 673 
 635 
 467 
 725 
 229 
 491 
 446 
 564 
 135 
 559 
 563 
 324 
 369 
 163 
 702 
 463 
 
 642 
 195 
 
 41 
 2 
 452 
 724 
 661 
 676 
 
 88 
 543 
 310 
 410 
 109 
 625 
 249 
 
 9 
 269 
 651 
 629 
 673 
 656 
 , 342 
 555, 
 688 
 129 
 689 
 635 
 620 
 674 
 114 
 171 
 11 
 9 
 563 
 624 
 627 
 638 
 700 
 721 
 354 
 682
 
 Ixii 
 
 TABLE OF CASES. 
 
 [References are to Sections. '\ 
 
 Love V. Howard 
 
 
 
 415 
 
 McCarger v. Rood 
 
 159, 
 
 160 
 
 V. Law 
 
 
 555, 
 
 705 
 
 McCarthy v. Fagin 580, 
 
 581, 
 
 614 
 
 Lovering v. Levering 
 
 
 321, 
 
 349 
 
 V. Trumacher 
 
 
 720 
 
 Lovett V. United States 
 
 
 
 398 
 
 V. Yale 
 
 
 280 
 
 Low V. Elwell 
 
 '228, 
 
 558, 
 
 559 
 
 V. York Co. Sav. Bank 
 
 604, 
 
 616 
 
 V. Settle 
 
 
 63, 
 
 110 
 
 McCartney v. Alderson 
 
 
 563 
 
 Lowe V. Brown 
 
 
 
 346 
 
 V. Auer 
 
 476, 
 
 705 
 
 V. Miller 
 
 
 
 54 
 
 McCarty v. Ely 
 
 
 128 
 
 V. Ross 
 
 
 
 17 
 
 V. Humphrey 
 
 
 414 
 
 Lowell V. Spaulding 
 
 
 595, 
 
 600 
 
 McClain v. Abshire 
 
 112, 
 
 113 
 
 V. Strahan 
 
 
 108, 
 
 468 
 
 Maclary v. Turner 
 
 
 547 
 
 Lowenberg v. Bernd 
 
 
 
 713 
 
 Maclean v. Dunn 
 
 
 157 
 
 Lowman v. Sheets 
 
 131, 
 
 152, 
 
 153 
 
 McClelan v. Gaston 
 
 
 561 
 
 Lowrey v. Reef 
 
 
 
 670 
 
 McCleland v. Rush 
 
 
 342 
 
 Lowry v. Tew 
 
 
 
 32 
 
 V. Wiggins 
 
 
 289 
 
 L. St. L. & T. R. Co. V. 
 
 Barrett 
 
 645 
 
 McClenahan v. Gwynn 
 
 
 435 
 
 Lucas V. Brooks 
 
 
 693, 
 
 696 
 
 McClintock v. Joyner 
 
 
 431 
 
 V. Comerford 
 
 
 
 458 
 
 McCloskey v. Doherty 
 
 640, 
 
 641 
 
 V. Coulter 
 
 
 
 373 
 
 V. Miller 
 
 
 654 
 
 V. McCann 
 
 
 
 418 
 
 McCloud V. Jaggers 
 
 
 530 
 
 Lucier v. Marsales 
 
 
 
 227 
 
 McCloury v. Croghan 
 
 
 140 
 
 Lucy V. Wilkins 
 
 
 
 548 
 
 McClung V. Echols 
 
 254, 
 
 316 
 
 Lufkin V. Preston 
 
 
 
 430 
 
 V. Ross 
 
 
 657 
 
 V. Zane 
 
 604, 
 
 605, 
 
 607 
 
 McClure v. McClure 
 
 
 255 
 
 Lundin v. Schoeffel 
 
 
 491, 
 
 492 
 
 McCombs V. Wallace 
 
 29, 30, 33 
 
 Lunn V. Gage 
 
 
 324, 
 
 673 
 
 McConnell v. Bowdry 
 
 
 697 
 
 Lunsford v. LaMotte Lead Co. 
 
 41 
 
 V. East Point Land Co. 
 
 
 433 
 
 V. Turner 
 
 
 
 706 
 
 V. Lemley 
 
 
 579 
 
 Lush V. Druse 
 
 98, 99, 
 
 666 
 
 McCorkle v. Yarrell 
 
 
 563 
 
 Luttrell V. Caruthers 
 
 
 
 4 
 
 McCormick v. Cheevers 
 
 
 131 
 
 V. Knox County 
 
 
 
 412 
 
 V. Herndon 
 
 
 29 
 
 Lyde v. Russell 
 
 
 716, 
 
 718 
 
 v. Milburn & Stoddard Co. 
 
 358 
 
 Lydiard v. Chute 
 
 
 
 71 
 
 V. Stephany 
 
 
 383 
 
 Lyebrook v. Hall 
 
 
 
 221 
 
 V. Stowell 
 
 
 471 
 
 Lyles v. Murphy 
 
 
 
 689 
 
 McCoull V. Herzberg 128, 
 
 576, 
 
 674 
 
 Lynch v. Baldwin 
 
 354, 
 
 355, 
 
 381 
 
 McCoy V. Bateman 
 
 
 705 
 
 v. Ortleib 
 
 574, 
 
 575, 
 
 576 
 
 V. Oldham 
 
 83, 
 
 410 
 
 V. Sauer 
 
 
 
 126 
 
 McCracken v. Hall 
 
 711, 
 
 716 
 
 Lynde v. Hough 
 
 
 467, 
 
 471 
 
 McCraw v. Old North State Ins. 
 
 
 Lynn's Appeal 
 
 
 636, 
 
 637 
 
 Co. 
 
 
 496 
 
 Lyon V. Cunningham 
 
 
 
 30 
 
 McCrea v. Marsh 
 
 
 44 
 
 V. King 
 
 
 
 382 
 
 McCreery v. Day 
 
 
 135 
 
 V. McMaster 
 
 
 
 476 
 
 McCroy v. Toney 
 
 
 152 
 
 V. Reed 
 
 
 539, 
 
 544 
 
 McCue V. Whitwell 
 
 
 378 
 
 V. Washburn 
 
 
 
 697 
 
 M'Cullough V. Irvine 
 
 
 636 
 
 Lyons v. Osborn 
 
 
 
 340 
 
 McCurdy v. Canning 
 McDaniel v. Callan 
 
 
 87 
 638 
 
 M 
 
 
 
 
 McDevitt V. Sullivan 
 McDill V. McDill 
 
 
 126 
 320 
 
 Mabry v. Harp 431, 
 
 432, 
 
 465, 
 
 567 
 
 McDonald v. Hanlon 
 
 
 563 
 
 McAdoo V. Callum 
 
 
 343, 
 
 347 
 
 V. May 
 
 
 659 
 
 McAlester v. Landers 
 
 
 354, 
 
 673 
 
 V. Tree 
 
 
 123 
 
 McAlpin V. Powell 
 
 
 588, 
 
 589 
 
 McDonough v. Oilman 
 
 603, 
 
 604 
 
 McAnany v. Tickell 
 
 
 
 413 
 
 V. Starbird 
 
 219, 
 
 718 
 
 McBee v. Sampson 
 
 
 
 431 
 
 McDougald v. Graham 
 
 
 35 
 
 McBurney v. Mclntyre 
 
 
 107, 
 
 433 
 
 McDowell V. Hendrix 
 
 
 455 
 
 M'Callough V. Irvine 
 
 
 
 632 
 
 V. Hyman 11, 23, 
 
 349, 
 
 622 
 
 McCann v. Rathbone 
 
 
 
 190 
 
 V. Simpson 
 
 
 251 
 
 MeCanna v. Johnston 
 
 
 
 203 
 
 V. Sutlive 
 
 
 705 
 
 McCardell v. Miller 
 
 
 
 362 
 
 McDuff V. Beauchamp 
 
 
 87 
 
 V. Williams 164, 
 
 410, 
 
 421, 
 
 426 
 
 McFadden v. McCann 
 
 
 347
 
 TABLE OF CASES. 
 
 Ixiii 
 
 IReferences are to Sections.2 
 
 McFadin v. Rippey 
 McFarlan v. "Watson 
 McFarland v. Heim 
 McFarlane v. Pierson 
 
 V. Williams 
 McGee v. Gibson 
 
 354, 669 
 
 445 
 
 457 
 
 410 
 
 77, 137a, 661 
 
 21 
 
 McGinley v. Alliance Trust Co. 614 
 
 McGinn v. French 594 
 
 McGinnis v. Genss 315 
 
 McGlauflin v. Holman 70, 71 
 
 McGlynn v. Brock 553 
 
 V. Moore 119, 372, 497, 500 
 
 McGrath v. Boston 5, 146 
 
 McGregor v. Brown 635 
 
 V. Rawle 168, 336 
 
 McGuffie V. Carter 703 
 
 McGuire v. Wright 436 
 
 Machen v. Hooper 629 
 
 McHenry v. Marr 392 
 
 Mcintosh V. Hodges 197 
 
 V. Rector &c. 374 
 
 Mclntyre v. Kingston 65 
 
 Mack V. Patchin 349, 365, 368, 369 
 
 Mackay v. Bloodgood 320 
 
 McKee v. Angelrodt 458 
 
 MacKellar v. Sigler 548 
 
 McKenzie v. Cheetham 585, 617 
 
 V. Harrison 135 
 
 V. Hatton 641 
 
 V. Lexington 84, 552 
 
 McKeon v. Cutter 574, 576, 589, 614 
 
 McKesson v. Jones 
 Mackey v. Mackey 
 
 V. Potter 
 McKie V. Anderson 
 McKildoe v. Darracott 471, 
 Mackin v. Haven 
 McKinley v. Chicago &c. R 
 McKinney v. Peck 
 
 V. Reader 
 Mackintosh v. Trotter 
 McKissack v. Bullington 
 McKissick v. Ashby 
 McLaughlin v. Dunn 
 
 V. Kennedy 
 McLean v. Fiske &c 
 
 705 
 
 138 
 
 152 
 
 694 
 
 497, 500 
 
 688, 701 
 
 Co. 15 
 
 218 
 
 441. 538 
 
 Co. 
 
 710, 721 
 
 6 
 
 255, 688 
 
 652 
 
 51 
 
 588, 589, 
 
 593 
 
 V. Nicol 133, 575 
 
 V. Rockey 171 
 
 V. Spratt 260, 262, 268. 427 
 
 McLellan v. Whitney 52, 53 
 
 McLendon v. West Point &c. R. 
 
 Co. 2 
 
 McLennan v. Grant 1, 99, 437 
 
 McLeran v. Benton 190, 226, 227, 
 
 280 
 McMahan v. Jacoway 428, 429 
 
 McMann v. Autenreith 681 
 
 McManus v. Fair Shoe &c. Co. 
 
 411, 417 
 McMath V. Levy 728 
 
 637, 639, 
 102, 
 458, 
 
 503, 504. 
 
 491, 
 
 95 
 383, 384, 
 
 675, 
 
 McMichael v. Craig 477, 
 
 McMillan v. Love 
 
 V. Robbins 
 
 V. Solomon 
 McMurphy v. Minot 
 McMurtry v. Adams 
 McNairy v. Hicks 361, 
 
 McNamee v. Relf 
 McNeal v. Rider 47 
 
 McNeeley v. Hart 
 McNeil V. Ames 444, 
 
 V. Kendall 
 
 V. Tenth Nat. Bank 
 McNichol V. Eaton 
 McPherson v. Atlantic &c. R. 
 
 Co. 
 McQuade v. Emmons 
 McQuesney v. Hiester 
 McQuesten v. Morgan 
 McSloy V. Ryan 
 Mactier v. Osborn 
 McVicker v. Dennison 
 Maddon v. White 
 Maddox v. White 
 Madigan v. McCarthy 
 Madox V. Humphries 
 Magaw V. Lambert 
 Magee v. Fisher 
 Maggort V. Hansbarger 
 Magruder v. Peter 
 Magwire v. Tyler 
 Mahana v. Blunt 
 Maher v. Hanley Brewing Co. 
 
 V. James Hanley &c. Co. 
 Mahoney v. Farley 
 Maidstone v. Stevens 
 Main v. Davis 
 
 V. Feathers 
 Maine v. Cumston 
 Makin v. Watkinson 409, 592, 
 Malley v. Thalheimer 
 Mallory v. Stodder 
 Maltman v. Williamson 
 Manchester &c. Co. v. Carr 409, 
 Mann v. Brewer 
 
 V. Fuller 
 
 V. Nunn 
 Manning v. Brown 221,228, 
 
 V. Franklin 159, 
 
 Mansel v. Norton 
 Manwaring v. Jenison 
 Marburg v. Cole 
 Marchand v. York 
 Mark v. North 
 Markland v. Crump 
 Marks v. Ryan 
 Marie v. Flake 
 Marley v. RodgerS' 
 
 V. Wheelwright 
 Marlow v. Wiggins 
 Marney v. Byrd 
 
 479 
 25 
 690 
 677 
 503 
 707 
 640 
 705 
 , 54 
 46 
 496 
 446 
 473 
 636 
 
 413 
 
 20 
 666 
 523 
 272 
 492 
 374 
 . 97 
 638 
 715 
 358 
 676 
 
 76 
 393 
 
 89 
 471 
 160 
 266 
 174 
 6 
 533 
 669 
 449 
 318 
 593 
 384 
 541 
 666 
 578 
 652 
 596 
 133 
 324 
 160 
 332 
 715 
 
 87 
 357 
 171 
 658 
 718 
 430 
 421 
 693 
 
 75 
 421
 
 Ixiv 
 
 TABLE OF CASES. 
 
 IReferences are to Sections.'] 
 
 Marquart v. LaFarge 219 
 
 Marr v. Ray 159, 217, 651 
 
 Marsh v. Brace 447, 452 
 
 V. Bristol 486 
 
 V. Butterworth 363 
 
 V. McNider 109 
 
 Marshall v. Cohen 616 
 
 Marsters v. Cling 186 
 
 Martens v. O'Connor 86 
 
 Martin v. Black 461 
 
 V. Blanchett 5, 161 
 
 V. Davis 142 
 
 V. Hamersky 202 
 
 V. Knapp 2, 237 
 
 V. Martin 430, 670 
 
 V. Ohio River R. Co. 535 
 
 V. O'Conner 446 
 
 V. Rector 525 
 
 V. Richards 584 
 
 V. Splivalo 280 
 
 V. Stearns 548, 550 
 
 Martindale v. Price 438 
 
 Martineau v. Steele 670 
 
 Martinez v. Thompson 397 
 
 Marwedel v. Cook 619 
 
 Marys v. Anderson 119 
 
 Mason v. Breslin 442 
 
 V. Delancy 29, 30, 563 
 
 V. Fenn 725 
 
 V. Hawes 561 
 
 V. Howes 592 
 
 V. Kempf 255 
 
 V. Moyers 569 
 
 V. Smith 328, 411, 447, 451 
 
 V. Stiles 626 
 
 V. Wierengo 206, 208 
 
 Massachusetts Gen. Hospital v. 
 
 Somerville , 20 
 
 Massan v. French 122 
 
 Massie v. State Nat. Bank 140 
 
 Mast V. Pearee 575 
 
 Masury v. Southworth 328, 335, 389 
 
 Mathewson v. Thompson 311 
 
 Mathinet v. Giddings 717 
 
 Matthews' Appeal 704 
 
 Matthews v. Matthews 19, 563 
 
 V. Sawell 543 
 
 V. Whltaker 434 
 
 Mattis V. Robinson 688, 689 
 
 Mattler v. Strangmeier 588, 589 
 
 Mattox V. Helm 701 
 
 V. Hightshue 29 
 
 Maughlin v. Perry 387 
 
 Maule V. Ashmead 349, 368 
 
 V. Weaver 318 
 
 Maverick v. Jones 705 
 
 V. Lewis 59 
 
 Maxwell v. Jones 642 
 
 V. Todd 483, 488 
 
 May v. Calder 89 
 
 V. Gillis 396 
 
 May v. Rice 
 Mayberry v. Johnson 
 Mayer v. Lawrence 
 
 V. Morehead 
 
 V. Waters 
 Mayhew v. Hardesty 
 Maynard v. Maynard 
 Mayo V. Fletcher 
 Mayor v. Morehead 
 Mayor &c., In re 
 
 274 
 57, 74 
 153 
 676 
 121 
 164, 456, 458 
 456 
 223 
 675 
 415 
 
 Mayor &c. v. Bridge Co. 694 
 
 v. Brooklyn &c. Ins. Co. 726 
 
 V. Cashman 415 
 
 V. Huntington 661 
 
 V. Ketcham 667 
 
 V. Mabie 
 V. Pattison 
 V. Rice 
 V. Sonneborn 
 V. Whitt 
 Mays V. Dwight 
 
 351, 354, 365, 368 
 431 
 343 
 683 
 706 
 702 
 
 Maywood v. Logan 
 Mead v. Pollock 
 Meader v. Stone 
 Meadow v. Hopkins 
 Meany v. Abbott 
 Meath v. Watson 
 Medary v. Gathers 
 
 674 
 20 
 558 
 30 
 597 
 473 
 404 
 
 Medinah Temple Co. v. Currey 
 
 457, 461, 464, 466, 473 
 Meeker v. Spalsbury 354, 539 
 
 Meeks v. Bowerman 361, 576 
 
 Meetze v. Charlotte &c. R. Co. 45 
 Meier v. Thiemann 190, 226 
 
 Melchoir v. McCarty 61 
 
 Melhop V. Meinhart 112 
 
 Mellen v. Morrill 585, 599 
 
 V. Whipple 462 
 
 Melms V. Pabst Brew. Co. 625, 633, 
 
 636 
 Mendel v. Fink 616 
 
 V. Hall 209, 221, 238 
 
 Menger v. Ward 434, 454 
 
 Meni v. Rathbone 420 
 
 Meno V. Hoeffel 229, 230 
 
 Menough's Appeal 661 
 
 Merchants' Bank &c. v. Clavin 699 
 Merchants' Ins. Co. v. Mazange 389, 
 
 444, 454 
 Mercil v. Broulette 559 
 
 Meridan Land &c. Co. v. Ball 696 
 Meroney v. Wright 502 
 
 Merraman v. Caldwell 474a 
 
 Merriam v. Ridpath 719 
 
 V. Willis 559 
 
 Merrifield v. Cobleigh 471 
 
 Merrill v. Bullock 1, 3, 177, 229 
 
 v. Frame 321, 349 
 
 V. Willis 539, 549 
 
 Merritt v. Fisher 52 
 
 V. Judd 713, 716, 718, 722
 
 TABLE OF CASES. 
 
 Ixv 
 
 [References are to Sections.l 
 
 Merry v. Hallet 172 
 
 Merryman v. Bourne 706 
 
 Mershon v. Williams 340, 349 
 
 Merwin v. Camp 116 
 
 Messenger v. Armstrong 255 
 
 Messerly v. Mercer 23 
 
 Messersmith. v. Messersmith 
 
 485, 491 
 Messinger v. Union Warehouse 
 
 Co. 54 
 
 Messley v. Ladd 695 
 
 Metropolitan Land Co. v. Man- 
 ning 485, 490, 491 
 Meyer v. Harris 604 
 V. Rothschild 464 
 V. Smith 549 
 Meyers v. Myrrell 392, 397 
 Meyers Bros. v. Gaertner 456 
 Michael v. Curtis 178 
 Michigan &c. R. v. Bullard 702 
 Michigan M. Ins. Co. v. Bowes 496 
 Mickie v. Lawrence 10 
 Middlebrook v. Corwin 573 
 Middlebrooks v. Mayne 604 
 Middlefield v. Church Mills &c. 
 
 Co. 
 
 Middlekauff v. Smith 
 Middleton v. Dodswell 
 Miland v. Meiswinkel 
 Miles V. Blkin 
 
 V. Lauraine 
 
 V. Miles 
 
 V. Stanke 
 Milford V. Holbrook 
 Milhouse v. Patrick 
 Miliken v. Faulk 
 Millan v. Kephart 
 Miller v. Ammon 
 
 V. Benton 
 
 V. Buchanan 
 
 V. Campbell 
 
 V. Clement 
 
 V. Dennis 
 
 V. Finch 
 
 V. Fitzgerald &c. Co. 
 
 V. Fulton 
 
 V. Green 
 
 V. Hancock 
 
 V. Havens 
 
 V. Lampson 
 
 V. Lang 
 
 V. Levi 
 
 V. McCardell 
 
 V. Maguire 
 
 V. Mariner's Church 
 
 V. Mead 
 
 V. Michel 
 
 V. Morris 
 
 V. Prescott 
 
 V. Ridgely 
 
 V. Shackleford 
 Jones L. & T. — v 
 
 328 
 397, 410 
 91 
 679 
 29, 655 
 385 
 635 
 394 
 601, 613, 618 
 699 
 
 163 
 
 66 
 
 120 
 
 681 
 
 654 
 
 98 
 
 572 
 
 540 
 
 344 
 
 642 
 
 640 
 
 421 
 
 617 
 
 482, 486 
 
 232 
 
 688, 697 
 
 115, 170, 482 
 408 
 121, 356 
 594 
 378 
 365 
 393 
 
 331, 386, 473 
 555 
 251 
 
 Miller v. Shields 
 
 635, 
 
 637 
 
 V. Smythe 
 
 91, 
 
 587 
 
 V Sparks 
 
 
 503 
 
 V. Stewart 
 
 
 453 
 
 Miller Lumber Co. v. Wilson 
 
 378 
 
 Millikan v. Davenport 
 
 
 703 
 
 Milliken v. Thorndike 
 
 
 126 
 
 Milling v. Becker 
 
 
 549 
 
 Mills V. Auriol 
 
 
 447 
 
 v. Baehr 
 
 
 680 
 
 V. Goff 
 
 
 261 
 
 V. Hamilton 
 
 
 709 
 
 V. Heaton 
 
 
 709 
 
 V. Peed 
 
 
 705 
 
 Milne v. Davidson 
 
 
 121 
 
 Milnes v. Gery 
 
 
 346 
 
 Milsap V. Stone 682, 
 
 689, 
 
 705 
 
 Milton V. Haden 
 
 
 701 
 
 Mims V. Chandler 
 
 
 26 
 
 Miner v. Stevens 
 
 
 558 
 
 V. Tagert 
 
 
 389 
 
 V. Williams 
 
 
 93 
 
 v. Tobin 
 
 428, 
 
 437 
 
 Minneapolis Coop. Co. v. 
 
 Wil- 
 
 
 liamson 
 
 
 665 
 
 Minot v. Joy 
 
 
 679 
 
 Minshall v. Lloyd 
 
 710, 
 
 721 
 
 v. Cakes 
 
 
 329 
 
 Mirick v. Bashford 
 
 
 334 
 
 v. Hoppin 
 
 
 355 
 
 Missouri &c. Co. v. Richardson 
 
 447 
 
 Mitchell V. Blossom 
 
 
 553 
 
 v. Commonwealth 
 
 
 6 
 
 V. McNeal 
 
 
 714 
 
 V. McNeil 
 
 
 331 
 
 V. Nelson 
 
 
 392 
 
 V. Pendleton 
 
 
 657 
 
 V. Stevens 
 
 
 110 
 
 V. Zimmerman 
 
 
 128 
 
 Mixon V. Coffield 
 
 422, 
 
 658 
 
 Mizner v. Munroe 
 
 
 188 
 
 Moak V. Johnson 
 
 
 369 
 
 Moffat V. Henderson 
 
 412 
 
 414 
 
 V. Smith 404, 430 
 
 459, 
 
 588 
 
 Monday v. O'Neil 
 
 
 572 
 
 Mondschein v. State 
 
 
 51 
 
 Monk V. Noyes 
 
 
 401 
 
 Montague v. Gay 
 
 668 
 
 669 
 
 V. Jamison 
 
 431 
 
 432 
 
 Montanye v. Wallahan 
 
 76 
 
 363 
 
 Montecon v. Faures 
 
 
 465 
 
 Montgomery v. Board &c. 
 
 
 340 
 
 V. Craig 
 
 
 476 
 
 V. Tate 
 
 
 88 
 
 V. Willis 
 
 201 
 
 212 
 
 Moody V. King 
 
 
 644 
 
 V. Seaman 
 
 270 
 
 271 
 
 Mooers v. Wait 
 
 635 
 
 636 
 
 Moore v. Beasley 
 
 
 686 
 
 v. Boyd 
 v. Calvert 
 
 
 254 
 1
 
 Ixvi 
 
 TABLE OF CASES. 
 
 IReferences are to Sections.2 
 
 Moore v. Davis 
 V. Faison 
 V. Foley 
 V. Gardiner 
 V. Goedel 
 
 554 
 7 
 343 
 410 
 624 
 
 V. Guardian Trust Co. 467 
 
 V. Harvey 1, 654, 655 
 
 V. Luce 479 
 
 V. Mason 228 
 
 V. Miller 59 
 
 V. Morrow 220, 230 
 
 V. Parker 581 
 
 V. Smith 31, 303, 712 
 
 V. Spruill 50 
 
 V. Townshend 625, 627, 630 
 
 V. Valentine 727 
 
 V. Weber 404 
 
 V. Wood 712 
 
 Moran v. Moran 516 
 
 Morehead v. Watkyns 180, 251, 259 
 
 Morey, Estate of 393 
 
 Morey v. Hoyt 715, 716 
 
 V. Pierce 580 
 
 Morgan v. Bissell 142 
 
 V. Griffith 130, 134 
 
 V. McCollister 543 
 
 V. Milman 346 
 
 V. Morgan 7 
 
 V. Powers 271 
 
 V. Slaughter 464 
 
 V. Smith 453, 501, 549 
 
 V. United States 36, 42 
 
 V. Varick 653 
 
 Moring v. Ward 38 
 
 Moroney v. Hellings 672 
 
 Morphett v. Jones 160 
 
 Morrill v. De la Granja 559 
 
 V. Mackman 9, 39, 40 
 
 Morris v. De Wolf 495 
 
 V. Kettle 66, 67, 364, 365 
 
 V. Shakespeare 126 
 
 V. Sliter 323 
 
 V. Summerl 389 
 
 V. Tillson 357 
 
 Morris Canal &c. Co. v. Mitchell 20 
 
 V. Ryerson 603 
 
 Morrison v. Bassett 682 
 
 V. Chadwick 364 
 
 V. Herrick 160 
 
 V. Marquardt 381 
 
 V. Peay 159, 160 
 
 V. Sohn 722 
 
 Morrow v. Sawyer 563 
 
 Morse v. Byam 474a, 478 
 
 V. Copeland 37 
 
 V. Goddard 363, 688 
 
 V. Maddox 588 
 
 V. Stafford 25 
 
 Morton v. Lawson 696 
 
 V. Leland 71 
 
 V. Weir 114 
 
 Moseley v. Allen 69 
 Moser v. Lower 46, 47, 51 
 
 Moses V. Loomis 496 
 
 V. Old Dominion &c. Co. 403 
 
 Mosher v. Cole 701, 707 
 
 Moshier v. Reding 59 
 
 Moss v. Gallimore 25, 422 
 
 Mott V. Palmer 714 
 
 Moule V. Garrett 411, 451 
 
 Moulton V. Faught 45 
 
 V. Norton 29 
 V. Robinson 52, 54, 55, 568 
 
 Mound V. Barker 124 
 
 Mountnoy v. Collier 703 
 
 Mounts V. Goranson 249 
 
 Moxon V. Townsend 401 
 Moyer v. Mitchell 
 
 319, 323, 324, 404 
 
 Moynihan v. Allyn 614, 619 
 
 Mueller v. Kuhn 558 
 
 Mugford V. Richardson 558 
 
 Muggridge v. Eveleth 10 
 
 Muldoon V. Hite 455, 456 
 
 Mulford V. Young 367 
 
 Mull V. Graham 373, 590 
 
 Mullen V. Pugh 347 
 
 V. Rainear 576, 579 
 
 V. St. John 607 
 
 V. Strieker 106, 381 
 
 Mullone v. Klein 524 
 
 Mulloy V. Kyle 171 
 
 Mulvaney v. Gross 462 
 
 Mumford v. Brown 404, 588 
 
 V. Whitney 45 
 
 Mundy v. Warner 52 
 
 Munigle v. Boston 170, 388 
 
 Munkwitz v. Uhlig 469 
 
 Munn V. Worrall 63, 110 
 
 Munroe v. Carlisle 601 
 
 V. Luke 651, 657 
 
 V. Perkins 135, 136 
 
 Munson v. Wray 59, 337 
 
 Murdock v. Ratcliff 171 
 
 V. Reed 173 
 
 Murphey v. Illinois &c. Bank 590 
 
 Murphy v. Farley 673 
 
 V. First Nat. Bank 70 
 
 V. Illinois 588 
 
 Murray v. Albertson 577, 578 
 
 V. Armstrong 81 
 
 V. Cherrington 112,113,170,240 
 
 V. Harway 471, 496 
 
 V. Moross 397 
 
 V. Richards 596 
 
 Mussey v. Holt 86, 363 
 
 V. Scott 558, 561 
 
 Mutton's Case 79 
 
 Myers v. Burns 331, 369, 408 
 
 V. Gemmel 106, 359, 381, 681 
 
 V. Sanders 547 
 
 V. Silljacks 454
 
 TABLE OF CASES. 
 
 Ixvii 
 
 [References are to Sections.'] 
 
 Myers v. Zetelle 
 Myerson v. Neff 
 
 
 90 
 255 
 
 N 
 
 
 
 Nagel V. League 
 Nally V. Reading 
 Nance v. Alexander 
 Napier v. Bulwinkle 
 Nash V. Berkmeir 
 
 496, 
 87, 199, 
 
 497 
 440 
 654 
 381 
 236 
 
 National &c. Asso. v. Brewer 
 
 538, 540 
 National &c. Bank v. Hand 389 
 
 Naumberg v. Young 
 
 130, 132, 575, 576, 578 
 
 Nave V. Berry 133, 382, 393, 431 
 
 Naye v. Noezel 631 
 
 Naylor v. Arnitt 90 
 
 V. Collinge 713 
 
 Neal V. Brandon 49 
 
 Neale v. Mackenzie 15, 364 
 
 Nearing v. Coop 682 
 
 Necklace v. West 563 
 
 Needham v. Allison 573 
 
 Neel V. Neel 637 
 
 Neff V. Ryman 679, 695 
 
 Negley v. Morgan 456, 458 
 
 Nellis V. Lathrop 668, 703, 704 
 
 Nelson v. Liverpool &c. Co. 599, 607 
 
 V. Oren 324 
 
 V. Rountree 14 
 
 V. Thompson 548 
 
 V. Ware 259, 289, 309 
 
 V. Webb 5 
 
 Neppach v. Jordan 146 
 
 Neuenberger v. Neuenbcrger 70 
 
 Neuman v. Rutter 474a 
 
 Neumeister v. Palmer 207, 555 
 
 Newall V. Wright 428, 668 
 
 Newbrough v. Walker 140, 369, 371 
 
 Newby v. Vestal 29, 654, 655 
 
 Newell's Appeal 34 
 
 Newell V. Gibbs 703 
 
 V. Sanford 271 
 
 Newhoff V. Mayo 376 
 
 Newman v. Met. El. R. Co. 105 
 
 Newson v. Douglas 666 
 
 V. Smythies 324 
 
 Newton v. Harland 558 
 
 V. Speare &c. Co. 548 
 
 V. Wilson 10, 669 
 
 New York Academy &c. v. Hack- 
 
 ett 592 
 
 New York & B. Bridge v. Clark 680 
 New York &c. R. Co. v. Randall 
 
 39, 201 
 
 Neyer v. Miller 621 
 
 Nichols V. Dusenbury 673 
 
 V. Sargent 373 
 
 V. Williams 304 
 
 Nicholson v. Munigle 189, 667 
 
 Nickel V. Brown 455, 456 
 
 Nickells v. Atherstone 538, 543 
 
 Nickolls V. Barnes 75, 180, 218 
 
 Nicoll V. Burke 660 
 
 Nicrosi v. Phillipi 563 
 
 Niedelet v. Wales 674 
 
 Nielander v. Chicago &c. R. Co. 70 
 Nightingale v. Barens 14, 19, 26, 29 
 
 Niles V. Ransford 703 
 
 Nindle v. State 117 
 
 Nissen v. Turner 701, 707 
 
 Nobles V. McCarty 31 
 
 Noel V. McCrory 5, 201, 206, 215 
 
 Nokes' Case 350 
 
 Nokes V. Gibbon 491 
 
 Norcross v. James 328 
 
 Norman v. Wells 330, 331 
 
 Norris v. Harris 487 
 
 V. Jackson 346 
 
 V. Morrill 498, 503 
 
 V. Showerman 67 
 
 North V. Barnum 696 
 
 North & South &c. Co. v. O'Hara 486 
 North Chicago St. R. Co. v. Le 
 
 Grand Co. 139, 337, 471 
 Northern &c. R. Co. v. Canton 
 
 Co. 716 
 
 Northern Bank v. Roosa 171 
 
 Northern Pac. R. Co. v. McClure 331 
 
 Northrup v. Northrup 323 
 
 Northwestern &c. Co. v. Brant 82 
 North Western R. Co. v. 
 
 M'Michael 92 
 
 Norton v. Doe 689 
 
 V. Wiswall 606 
 
 Norwood V. Kirby 682 
 
 Nott V. Owen 86 
 
 Newell V. Wentworth 302, 523 
 
 Nowlin Lumber Co. v. Wilson 39 
 
 Noyes v. Anderson 491 
 
 V. Longhead 113 
 
 V. Stauff 98, 100 
 
 V. Stillman 604, 644, 646 
 
 Nugent V. Boston &c. R. Co. 603 
 
 Oakes v Munroe 684 
 
 Oakley v. Schoonmaker 29, 668 
 
 Gates V. Frith 648 
 
 Oberf elder v. Kavanaugh 71 
 
 Obermyer v. Nichols 666 
 
 O'Brien v. Ball 362 
 
 v. Cavanaugh 184 
 
 V. Smith 74. 366 
 
 V. Troxel 237 
 
 V. Wetherell 382 
 
 Ocean Grove &c. Asso. v. Ber- 
 
 thall 495 
 
 V. Sanders 487
 
 Ixviii 
 
 TABLE OF CASES, 
 
 [References are to Sections.'] 
 
 Ocean Steamship Co. v. Hamil- 
 ton 587 
 O'Connell v. M'Grath 489 
 O'Connor v. Andrews 607, 618 
 V. City of Memphis 350, 369 
 V. Daily 349, 388 
 V. Delaney 28 
 V. Kelly 503 
 Odell V. Durant 111 
 O'Donnell v. Mclntyre 3, 709 
 O'Fallon v. Nicholson 334 
 Ogilvie V. Hall 364 
 Ohio &c. R. Co. V. Singletary 645 
 Ohio Iron Co. v. Auburn Iron 
 
 Co. 494 
 
 O'Keefe v. Kennedy 473 
 
 Okey V. State Ins. Co. 497 
 
 Old Colony R. Corp. v. Evans 77 
 O'Leary v. Delaney 595 
 
 V. Roe 378 
 
 Oliver v. Dickinson 
 
 102, 104, 107, 359, 677 
 V. Gary 683 
 
 v. Moore 24, 666 
 
 V. Olmstead 9 
 
 V. Phelps 663 
 
 Olt V. Lohnas 152 
 
 Olympic Theater 710 
 
 O'Malley v. Twenty-five Associ- 
 ates 581, 582, 593 
 Ombony v. Jones 716, 727 
 Oneal v. Orr 375 
 O'Neil v. Davis 427 
 V. Flanagan 392 
 O'Neill V. Cahill 271 
 Oneto V. Restano 83 
 Onslow's Case 573 
 Orcutt V. Isham 356 
 V. Moore 46 
 Ordway v. Remington 661 
 Orleans Co. &c. School v. Parker 703 
 Ormsby v. Dearborn 368 
 Orton v. Noonan 337, 338, 410 
 Osborne v. Humphrey 6 
 Osgood V. Dewey 30 
 Oskaloosa College v. Western 
 
 Union &c. Co. 383 
 
 Ossowski v. Wiesner 545 
 
 Ostotag V. Taylor 558 
 
 Ostner v. Lynn 661 
 
 Oswald Fratenburgh 447, 453 
 
 V. Mollet 424, 426 
 
 Otis V. McMillan 421, 427, 428 
 
 Ott V. Rape 19 
 
 Otto V. Jackson 662 
 
 Otway V. Braithwaite 77 
 
 Oury V. Saunders 699 
 
 Outtown V. Dulin 650 
 
 Overdeer v. Lewis 228, 254, 558, 559 
 Overman v. Sanborn 455 
 
 V. Sasser 725, 728 
 
 Owens V. Lewio' 
 
 V. Wight 
 Owings V. Jones 
 Oxford V. Leathe 
 
 38 
 
 349 
 
 600 
 
 43 
 
 Pacific &c. Ins. Co. v. Stroup 702 
 Pacific .Express Co. v. Tyler &c. 
 
 Co. 13 
 
 Packard v., Cleveland &c. R. Co. 197 
 
 Packer v. Rooerts 117 
 
 Padberg v. Kennerly 603 
 
 Padelford v. Padelford 635 
 
 Page V. Culver 422, 667 
 
 V. De Puy 228, 561 
 
 V. Esty 424 
 
 V. Kinsman 688, 703 
 
 V. Lashley 427, 670 
 
 V. McGlinch 2, 442 
 
 V. Monks 131 
 
 V. Wight 116 
 
 Paget V. Electrical &c. Co. 207 
 
 Paige V. Akins 1 
 
 Paine v. Trinity Church 376 
 
 Pakenham's Case 333 
 
 Palethorp v. Bergner 372 
 
 Palmer v. Bowker 685 
 
 V. Dearing 614, 621 
 
 v. Edwards 446 
 
 V. Ekins 700 
 
 V. Ford 490, 496 
 
 V. Melson 700 
 
 V. Meriden &c. Co. 324 
 
 V. Meyers 550 
 
 V. Myers 543 
 
 V. Rich 565 
 
 V. Wetmore 106, 359, 381, 681 
 
 V. Young 625, 638 
 
 Palmtag v. Doutrick 707 
 
 Panton v. Jones 697 
 
 Pappe V. Front 216 
 
 V. Trout 682 
 
 Paradine v. Jane 392, 675 
 
 Parent v. Callerand 87 
 
 Parer v. Manning 700 
 
 Parish v. Camplin 637 
 
 V. Rogers 111 
 
 Park V. Castle 194 
 
 V. Ensign 410 
 
 Parke v. Castle 304 
 
 Parker v. Foote 106 
 
 V. Gravenor 318 
 
 V. HoUis 210 
 
 v. Kane 541 
 
 V. Nanson 689 
 
 V. Page 201, 202, 375 
 
 V. Parmele 323 
 
 V. Raymond 682 
 
 V. Redfield 412 
 
 V. Shackelford 641
 
 TABLE OF CASES. 
 
 Ixix 
 
 ^References are to Sections.^ 
 
 Parker v. Tainter 156, 159 
 
 V. Taswell 346 
 
 V. Wulstein 724 
 
 Parkhurst v. Van Cortland 387 
 
 Parks V. Boston 362 
 
 V. Hays 486, 503 
 
 V. Union Mfg. Co. 466 
 
 Parmelee v. Oswego &c. R. Co. 324 
 
 Parmenter v. Webber 446 
 
 Parrish v. Commonwealth 49 
 
 Parrott v. Barney 628 
 
 V. Hungelburger 697 
 
 V. Palmer 638 
 
 Parsons v. Roumfort 310 
 
 V. Wright 505 
 
 Partridge v. Strange 85 
 
 Pasteur v. Jones 372, 392 
 
 Patchin v. Dickerman 533 
 
 Pate V. Turner 705 
 
 Patrick v. Colerick 44 
 
 Patten v. Deshon 
 
 411, 430, 438, 446, 447, 451, 658 
 
 V. Garrett 656 
 Patterson v. Graham 
 
 103, 104, 355, 356 
 
 V. Hansel 697 
 
 V. Hubbard 98 
 
 V. Pease 72 
 
 V. Stoddard 655 
 
 Pattison v. Dryer 225 
 
 Paul V. Chickering 418 
 
 Pause V. Atlanta 643 
 
 Payne v. Haine 397, 408 
 
 V. Irvin 613 
 
 V. James 628 
 
 V. Rogers 595, 600 
 
 Payson v. Holden 164 
 
 Payton v. Sherburne 222, 225, 311 
 
 Peaks V. Blethen 112 
 
 Pearce v. Nix 697 
 
 Pearcy v. Heath 431 
 
 V. Henley 87 
 
 Pearson v. Germond 505 
 
 V. Sanderson 379 
 
 Peck V. Christman 455 
 
 V. Hensley 435 
 
 V. Hiler 59 
 
 V. Jones 362 
 
 V. Northrop 422 
 
 V. Peck 116 
 
 V. Scoville Mfg. Co. 394 
 
 Peehl V. Bumbalek 201, 317, 340 
 
 Peers v. Consolidated Coal Co. 
 
 319, 322, 447 
 
 Peil V. Reinhart 614> 621 
 
 Peirce v. Grice 201, 202, 373, 375 
 
 Peirse v. Sharr 446 
 Pelton V. Minah Con. Min. Co. 22 
 V. Place 421, 422, 436 
 
 Pemberton v. King 725, 727 
 
 Pence v. Williams 709 
 
 Pence v. St. Paul &c. R. Co. 468 
 
 Pendergast v. Young 366, 421 
 
 Pendill v. Eells 357 
 V. Union Mining Co. 
 
 490, 498, 504, 558 
 Penniall v. Harborne 471 
 Pennock v. Lyons 471 
 Penton v. Robart 721 
 People V. Annis 19, 20, 222, 563 
 V. Barker 412 
 V. Bennett 489 
 V. Bigelow 29 
 V. Commissioners, &c. 412 
 V. Culver 27 
 V. Darling 217, 253 
 V. Dudley 503, 667 
 V. Gedney 107 
 V. Gilbert 487 
 V. Gillis 146 
 V. Goodwin 37 
 V. Ingersoll 89 
 V. Kelsey 143 
 V. McCarty 489 
 V. Mayor 85 
 V. Paulding 251 
 V. Rickert 180, 217 
 V. St. Nicholas Bank 146 
 V. Schackno 253 
 V. Simonson 125 
 V. Stuyvesant 668 
 V. Walden 586 
 People's Ice Co. v. Steamer Ex- 
 celsior 9 
 People's Loan &c. Asso. v. Whit- 
 more 702 
 Peoples V, Evens 199 
 Peoria v. Simpson 607 
 Pepper v. Rowley 381 
 Peralta v. Ginochio 126, 698 
 Perez v. Rabaud 574, 580, 595, 598 
 Perine v. Teague 177, 221 
 Perkerson v. Snodgrass 670 
 Perkins v. Hadsell 387 
 V. Morse 87 
 V. Peterson Hg 
 V. Potts 705 
 v. Swank 725 
 V. Washington Ins. Co. 389 
 Perrin v. Lepper 421, 422, 430 
 Perrinc v. Cheeseman 74 
 Perry v. Aldrich 661, 667 
 V. Bailey 641 
 V. Carr 573, 627 
 V. Hamilton 571 
 V. Wall 361 
 Peter v. Schley 164 
 Peters v. Balke 221, 254 
 V. Barnes 441 
 v. Elkins 651 
 V. Fisher 566 
 V. McKeon 140
 
 Ixx 
 
 TABLE OF CASES. 
 
 IReferences are to Sections.'] 
 
 Peterson v. Edmonson 
 
 
 675 
 
 V. Haight 
 
 
 377 
 
 V. Krenger 
 
 
 505 
 
 V. Smart 
 
 
 579 
 
 Petsch V. Biggs 
 
 159, 
 
 261 
 
 Pettingill v. Evans 
 
 
 627 
 
 V. Porter 
 
 
 104 
 
 Pettigrew v. Mills 
 
 
 682 
 
 Petty V. Malier 
 
 2, 
 
 257 
 
 Pettygrove v. Rothchild 497 
 Petz V. Voigt Brewing Co. 588 
 Pevey v. Skinner 108 
 Peyton v. Stith 474a 
 Pfaff V. Golden 430, 447 
 Pharis v. Jones 692 
 Phelan v. Anderson 180 
 V. Boylan 637, 639 
 Phelps V. Illinois &c. R. Co. 498 
 V. Long 261 
 Phene v. Popplewell 538, 540, 553 
 Philadelphia &c. R. Co. v. Ap- 
 peal Tax Court 412, 413 
 Philips V. Doe 487 
 Phillbrook v. Emswiler 132 
 Phillips V. Covert 488, 627 
 V. Doe 503 
 V. Monges 202 
 V. Reynolds 343 
 V. Robertson 199 
 V. Rothwell 688 
 V. Stevens 392, 393 
 V. Sun Dyeing &c. Co. 394 
 V. Vandergrift 495 
 Phillips &c. Mfg. Co. V. Whitney 679 
 Philpot V. Hoare 466 
 Phippen v. Stickney 346 
 Phipps v. Ingrahm 148 
 V. Sculthorpe 693 
 Phoenixville Borough v. Walters 201 
 Pickard v. Kleis 487 
 v. Perley 265, 269 
 Pickett V. Breckenridge 709 
 V. Ferguson 349, 703, 704 
 Pico V. Phelan 2 
 Pierce v. Brown 689, 703 
 V. Grice 726 
 V. Joldersma 410 
 V. Minturn 99, 659, 682 
 Pierre v. Fernald 381 
 Pierrepont v. Barnard 36, 38 
 Pierson v. Doe 255 
 V. Glean 604 
 Piggot V. Mason 343 
 Pike V. Brittan 623 
 V. Brown 77, 462 
 Pike & Hassen's Case 558 
 Pilkington v. Shaller 458 
 Pillshury v. Moore 603, 604 
 v. Morris 132 
 Pinero v. Judson 79, 195 
 Pingrey v. Watkins 669 
 
 Pinhorn v. Souster 188, 191, 254 
 Pintard v. Irwin 379 
 Pioneer Press Co. v. Hutchinson 673 
 Piper V. Fletcher 408, 410 
 Pistol V. Riccardson 171 
 Pitcher v. Tovey 447 
 Pittfiell V. Ewing 267 
 Pitkin V. Leavitt 370 
 Pitman v. Poor 45 
 V. Woodbury 75 
 Pittsburgh &c. R. Co. v. Thorn- 
 burgh 654 
 Plaisted v. Palmer 61 
 Planters' Ins. Co. v. Dlggs 495, 496 
 Plato V. Roe 19, 26 
 Piatt V. Farney 579, 614 
 Platto V. Gettelman 722 
 Playter v. Cunningham 366 
 Pleasant v. Benson 446 
 Ploen V. Staff 409, 592, 593 
 Pluck V. Digges 446 
 Plumer v. Harper 604 
 V. Plumer 573, 682 
 v. Currier 570 
 Plymouth v. Throgmorton 661, 667 
 Poindexter v. Blackburn 571 
 Polack V. Pioche 392 
 V. Shafer 63 
 Polk V. Reynolds 164 
 Polley V. Johnson 567 
 Pollock V. Whipple 522 
 Pollok V. Kelly 88 
 Pollman v. Morgester 372 
 Pomeroy v. Lambeth 373 
 Pomfret v. Ricroft 
 
 404, 588, 612, 626. 647 
 
 Pond v. Holbrook 69 
 
 Ponder v. Rhea 48, 53 
 
 Pool V. Lamb 701 
 
 Poole's Case 711, 716 
 
 Poole V. Bently 141 
 
 V. Engelke 221 
 
 Pope V. Boyle 605 
 
 V. Garland 197 
 
 V. Harkins 658 
 
 V. Linn 61 
 
 Poposkey v. Munkwitz 370 
 
 Poppers V. Meagher 255 
 
 Pordage v. Cole 321. 323 
 
 Port V. Jackson 447, 462 
 
 Porter v. Bleiler 12 
 
 V. Hammond 479 
 
 V. Hooper 654 
 
 V. Hubbard 3 
 
 V. Mayfield 693 
 
 V. Merrill 24 
 
 V. Noyes 547 
 
 V. Tull 675, 677 
 
 V. Witham 642 
 
 Portington's Case 327 
 
 Post V. Davis 137a, 140
 
 TABLE OF CASES. 
 
 Ixxi 
 
 {References are to Sections.'] 
 
 Post V. Kearney 328, 411, 446, 455 
 
 V. Phelan 22 
 
 V. Post 178 
 
 V. Vetter 404 
 
 Postal Tel. &c. Co. v. Western 
 
 Union &c. Co. 382, 384 
 
 Poston V. Jones 364, 669 
 
 Potter V. Arnold 440 
 
 V. Bassett 81 
 
 V. Bower 213 
 
 V. Cunningham 53 
 
 V. Mercer 37, 146, 162 
 
 Ponder v. Catterson 683 
 
 Poultney v. Holmes 439 
 
 Powell V. Bergner 725 
 
 V. Crampton 159 
 
 V. Dayton &c. R. Co. 627 
 
 V. F. C. Linde Co. 128 
 
 V. McAshan 131 
 
 Powers V. Cope 392 
 
 Powley V. Walker 631 
 
 Pratt V. Farrar 
 
 187, 188, 226, 254, 559 
 V. Hudson River Co. 138 
 
 Pray v. Stebbins 87, 88 
 
 Preble v. Hay 255 
 
 Prentiss v. Wood 604 
 
 Presby v. Benjamin 464, 468 
 
 Presbyterian Church v. Pickett 
 
 486, 487 
 
 Prescott V. De Forest 446 
 
 V. Elm 253, 2C1 
 
 V. Otterstatter 410 
 
 Preston v. Hawley 654 
 
 V. Ryan 567 
 
 Presstman v. Silljacks 703 
 
 Pretty v. Bickmore 599 
 
 Prettyman v. Walston 
 
 413, 637, 639, 690 
 
 Prevot V. Lawrence 697 
 
 Price V. Assheton 343 
 
 V. Leyburn 200 
 
 V. Pickett 566 
 
 Prichard v. Tabor 33 
 
 Prickett v. Ritter 215 
 
 Pridgeon v. Boat Club 353 
 
 V. Excelsior Boat Club 105 
 
 Priest V. Nichols 612 
 
 Priestley v. Johnson 713 
 
 Prindergast v. Searle 272 
 
 Prior V. Kiso 538 
 
 Probst V. Rochester &c. Co. 342 
 
 Proctor V. Keith 
 
 392, 393. 404, 495, 588, 598 
 V. Tows 229 
 
 Proffitt V. Henderson 625, 635 
 
 Propagation Society v. Sharon 58 
 Proprietors &c. v. Hilton 319 
 
 Proprietors of No. 6 v. McFarland 30 
 Proprietors, &c. v. State 59 
 
 Prosser v. Pretzel 628 
 
 Proudfoot V. Hart 
 
 397, 
 
 401 
 
 Prout V. Roby 
 
 387, 
 
 428 
 
 Providence &c. Bank v 
 
 Hall 
 
 
 
 201, 206, 
 
 215 
 
 Providence &c. Union 
 
 V. Ellott 
 
 
 
 77 
 
 , 80 
 
 Providence Co. Sav. 
 
 Bank v. 
 
 
 Phalen 
 
 531, 
 
 705 
 
 Providence v. St. John 
 
 's Lodge 
 
 379 
 
 Provost V. Hallett 
 
 
 403 
 
 Pryor v. Foster 
 
 128, 
 
 592 
 
 Pugh V. Arton 
 
 
 716 
 
 V. Chesseldine 
 
 158, 
 
 437 
 
 V. Davis 
 
 
 682 
 
 V. Duke of Leeds 
 
 
 119 
 
 Pulse V. Hamer 
 
 146, 
 
 162 
 
 V. Miller 
 
 
 98 
 
 Pulteney v. Shelton 
 
 
 573 
 
 Purcell V. English 373, 
 
 404, 594, 
 
 615 
 
 Pursel V. Teller 
 
 
 580 
 
 Purvis V. Rayer 
 
 
 435 
 
 Pust V. Dowie 
 
 
 324 
 
 Putnam v. Ritchie 
 
 8S 
 
 , 90 
 
 V. Smith 
 
 
 110 
 
 V. Westcott 
 
 
 172 
 
 V. Wise 
 
 48, 5C 
 
 , 54 
 
 V. Wyley 
 
 
 10 
 
 Pynchon v. Stearns 
 
 388, 631, 
 
 633 
 
 Q 
 
 Quackenboss v. Clarke 442 
 
 Quackenbush v. Sawyer 50 
 
 Quay V. Lucas 595 
 
 Quertermous v. Hatfield 31 
 
 Quincy, Ex parte 716 
 
 Quincy v. Carpenter 389 
 Quincy &c. R. Co. v. Humphreys 443 
 
 Quinette v. Carpenter 201 
 
 Quinlan v. Bonte 206 
 
 Quinn v. Perham 619 
 
 V. Quinn 696 
 
 R 
 
 Raband v. Frank 642 
 
 Rabe v. Fyler 257 
 
 Radley v. O'Leary 519 
 
 Ragan v. Simpson 19, 26 
 
 Ragsdale v. Kinney 56 
 
 V. Lander 200 
 
 Railsback v. Walke 199 
 
 Railton v. Taylor 574, 586 
 
 Rainey v. Capps 5, 61 
 
 Railway v. Smith 640 
 
 Ralph V. Lockwood 49 
 
 Ralston v. Boady 121, 122 
 
 Ramsay v. Blair 63 
 
 Ramsdell v. Maxwell 226 
 
 Rand v. Purcell 213 
 
 Rand &c. Co. v. Wickham 126, 127
 
 Ixxii 
 
 TABLE OF CASES. 
 
 [References are to Sections.'] 
 
 Randall v. Cleaveland 
 
 
 626 
 
 Reese v. Caffee 
 
 
 682 
 
 V. Rich 
 
 543, 
 
 551 
 
 Reeve v. Bird 
 
 
 365 
 
 V. Thompson 
 
 
 549 
 
 Reeves v. Hyde 
 
 
 673 
 
 V. President &c. 
 
 
 318 
 
 Reg. V. St. George's Union 
 
 
 23 
 
 V. Chubb 
 
 
 431 
 
 Reid V. John F. Wiessner Brew- 
 
 
 V. President &c. 
 
 
 322 
 
 ing Co. 455, 456, 
 
 463, 
 
 471 
 
 Randol v. Scott 
 
 466, 
 
 473 
 
 Reiff V. Reiff 
 
 
 566 
 
 V. Tatum 465, 473, 
 
 495, 
 
 497 
 
 Reilly v. Ringland 
 
 
 570 
 
 Randolph v. Carlton 
 
 
 703 
 
 Reithman v. Brandenburg 
 
 
 267 
 
 V. Helps 
 
 
 132 
 
 Remington v. Linthicum 
 
 
 444 
 
 Rank v. Rank 
 
 
 569 
 
 Remsen v. Conklin 
 
 
 503 
 
 Ranlet v. Cook 
 
 338, 
 
 343 
 
 Reniger v. Fogossa 
 
 
 322 
 
 Rann v. Hughes 
 
 
 74 
 
 Rennell v. Kimball 
 
 
 131 
 
 Rashleigh v. South Eastern R. 
 
 
 Reno V. Mendenhall 
 
 392, 
 
 673 
 
 Co. 
 
 
 319 
 
 Renoud v. Daskam 
 
 
 339 
 
 Ratcliff V. Bellfonte Iron Works 
 
 
 Renwick v. Morris 
 
 
 562 
 
 Co. 
 
 
 709 
 
 Resser v. Corwin 
 
 125, 
 
 126 
 
 Ratkowski v. Masolowski 
 
 
 366 
 
 Reusens v. Lawson 
 
 
 696 
 
 Rawlings v. Duvall 
 
 
 462 
 
 Rex v. Bake 
 
 
 556 
 
 Rawlins v. Turner 
 
 
 74 
 
 V. Bathhurst 
 
 
 556 
 
 Rawlyns' Case 
 
 
 421 
 
 V. Cheshunt 
 
 
 20 
 
 Rawson v. Babcock 
 
 
 224 
 
 V. Collett 
 
 
 175 
 
 Ray V. Ayers 
 
 
 641 
 
 V. Horndon 
 
 
 36 
 
 V. Western Pa. &c. Co. 
 
 
 87 
 
 V. Horndon-on-the-Hill 
 
 36, 44 
 
 Raybourn v. Ramsdell 
 
 
 502 
 
 V. Little Dean 
 
 
 74 
 
 Rayburn v. Mason Lumber Co. 
 
 663 
 
 V. Pedly 
 
 599, 
 
 604 
 
 Raymond v. Andrews 
 
 
 566 
 
 V. Philipps 
 
 
 122 
 
 V. Krauskopf 
 
 
 136 
 
 V. St. Nicholas 
 
 
 710 
 
 V. White 
 
 
 725 
 
 V. Sutton 
 
 
 89 
 
 Raynor v. Drew 
 
 
 154 
 
 V. Topping 
 
 
 715 
 
 V. Valentine Blatz &c. Co. 
 
 370 
 
 v: Wilson 
 
 
 556 
 
 V. Wilson 
 
 
 541 
 
 Reybold v. Reybold 
 
 
 322 
 
 Read v. Allen 
 
 
 692 
 
 Reynolds v. Chynowith 
 
 52, 
 
 631 
 
 V. Pennsylvania R. Co. 
 
 
 827 
 
 V. Commissioners 
 
 
 171 
 
 V. Tuttle 
 
 
 483 
 
 v. Davison 
 
 
 130 
 
 Readey v. American &c. Co 
 
 
 456 
 
 V. Greenbaum 
 
 
 83 
 
 Reading Iron Works 
 
 
 67 
 
 V. Lewis 
 
 
 701 
 
 Readman v. Conway 
 
 618, 
 
 620 
 
 V. Pitt 
 
 
 492 
 
 Ream v. Harnish 
 
 
 53 
 
 V. Shuler 
 
 
 721 
 
 Reay v. Cotter 
 
 
 563 
 
 V. Williams 
 
 
 640 
 
 Rector v. Buckhart 
 
 
 607 
 
 Rhett V. Poe 
 
 
 662 
 
 V. Hartford Deposit Co. 
 
 
 447 
 
 Rhode Island Hospital &c. Co. v. 
 
 
 Rector &c. v. Higgins 
 
 
 420 
 
 Baxter 
 
 
 388 
 
 Rector of Chedington's Case 
 
 112 
 
 Rhodes v. Baird 
 
 
 140 
 
 Redding v. Hall 
 
 
 675 
 
 V. Bullard 
 
 
 588 
 
 Redington v. Browne 
 
 
 111 
 
 Rhone v. Gale 
 
 
 389 
 
 Redman v. Bedford 
 
 52 
 
 671 
 
 Rhyne v. Guevara 
 
 
 703 
 
 Reed v. Bartlett 
 
 
 94 
 
 Rice V. Baker 
 
 
 464 
 
 V. Hawley 
 
 
 265 
 
 V. Brown 
 
 74 
 
 146 
 
 V. Kitchen 
 
 
 6 
 
 V, Dudley 365, 
 
 549 
 
 551 
 
 V. Lewis 112, 116 
 
 382 
 
 384 
 
 V. Loomis 
 
 
 662 
 
 V. Reed 
 
 
 186 
 
 V. Stone 
 
 494 
 
 495 
 
 1 V. Reynolds 
 
 
 367a 
 
 V. Whitmore 
 
 
 85 
 
 V. Shepley 
 
 
 699 
 
 Rich V. Basterfield 
 
 
 603 
 
 V. Snowhill 
 
 
 403 
 
 V. Bolton 185, 197 
 
 215 
 
 254 
 
 V. Todd 
 
 
 691 
 
 Richard v. Bestor 
 
 
 64 
 
 V. Ward 
 
 
 668 
 
 Richard C. Tavener's Case 
 
 
 10 
 
 Reeder v. Bell 
 
 20 
 
 , 475 
 
 Richards v. Gauffret 
 
 
 40 
 
 V. Purdy 
 
 228 
 
 , 561 
 
 V. Killam 
 
 
 652 
 
 V. Sayre 
 
 180 
 
 , 199 
 
 v. Wardwell 
 
 
 53 
 
 Rees V. Lowry 
 
 
 447 
 
 Richardson v. Bates 
 
 
 72,
 
 TABLE OF CASES. 
 
 Ixxia 
 
 {References are to Sections.'] 
 
 Richardson v. Chasen 140 
 
 V. Copeland 715 
 
 V. Gifford 75 
 
 V. Langridge 197 
 
 V. Richardson 89, 651, 654, 657 
 
 Richburg v. Bartley 497 
 
 Richey v. Du Pre 49 
 
 V. Hinde 651, 653, 654 
 
 Richmond v. Connell 54 
 
 V. Davis 91, 111 
 
 Richmond &c. R. Co. v. Durham 37 
 
 Richmond &c. Tp. Co. v. Rogers 29 
 
 Richmond Ice Co. v. Crystal Ice 
 
 Co. 675, 681 
 
 Ricliards v. Rickards 343 
 
 Ricketson v. Galligan 682 
 
 Riddle v. Brown 41 
 
 V. Dow 54 
 
 V. Hill 93 
 
 V. Hodge 547 
 
 V. Littlefield 107, 108 
 
 Rider v. Clark 599 
 
 Ridge V. Railroad Transp. Co. 
 
 641, 644 
 
 Ridgely v. Stillwell 174, 251 
 
 V. Stillwell 197, 661 
 
 Ridgway v. Stafford 53 
 
 Riggs V. Rursell 464, 466 
 
 Right V. Beard 183 
 
 V. Cuthell 265, 269 
 
 V. Darby 201 
 
 Riley v. Farnsworth. 156 
 
 V. Hale 368, 369 
 
 V. Jordan 29, 35 
 
 V. Pettis County 408 
 
 V. Simpson 605, 606 
 
 Rinehart v. Olwine 53 
 
 Ripley v. Wightman 678 
 
 V. Yale 627 
 
 Rising V. Stannard 86, 570, 713 
 
 Rising Sun Lodge v. Buck 318 
 
 Rispini v. Porta 549 
 
 Rives V. Nesmith 689 
 
 R. J. Gunning Co. v. Cusack 40 
 
 Roach V. Cosine 19, 26, 563 
 
 V. Peterson . 206 
 
 Roads V. Symmes 72 
 
 Robb V. Montgomery 323 
 
 Robbins v. Atkins 597, 620 
 
 V. Conway 498 
 
 V. Jones 579, 585, 595 
 
 Roberson v. Simons 201, 204, 251 
 
 Roberts v. Barker 573 
 
 V. Bettman 495 
 
 v. Davey 483, 495 
 
 V. Grubb 274, 283 
 
 v. Hayward 267 
 
 V. Nelson 71 
 
 V. Robertson 63 
 
 V. Tennell 199, 200 
 
 V. Wiggin 92 
 
 Robertson v. Amazon &c. Co. 578 
 V. Bidden 682, 703 
 V. French 68 
 V. George 640 
 V. Hayes 111 
 V. Norris " 88 
 Robey v. Prout 482 
 Robins v. Cox 430 
 V. Kitchen 702 
 Robinson v. Boys 494, 497 
 V. Deering 186, 667 
 V. Eagle 87 
 V. Harman 140 
 V. Lehman 445 
 V. L'Engle 675 
 V. Perry 431 
 V. State 386 
 v. Troup Min. Co. 703 
 -Rochester Lodge No. 21 v. Gra- 
 ham 328 
 Rochford v. Hackman 466 
 Roe V. Archbishop 538, 541 
 V. Ashburner 141, 142 
 V. Galliers 466 
 V. Harrison 473, 497 
 V. Hodgson 90 
 V. Lees 197 
 V. Sales 464, 467, 469 
 V. Street 272, 273 
 V. Ward 202, 261 
 Roff V. Duane 76, 556 
 Rogan V. Dockery 404 
 Rogers v. Brown 216 
 V. Coy 1, 40 
 V. Grider 87 
 V. Humphreys 94 
 V. Libbey 651 
 V. McKenzie 422 
 V. Pitcher 198 
 V. Saunders 387 
 V. Sawin 359 
 V. Snow 102, 677, 679 
 V. Waller 682 
 V. Wheaton 197 
 Rohrer v. Babcock 54 
 Rollins V. Moody 258, 293 
 V. Proctor 137 
 Ronald v. Barkley 89 
 Rood V. Willard 85 
 Rooks V. Moore 9 
 Rooney v. Gillespie 428 
 Roosevelt v. Hopkins 468. 469 
 V. Hungate 257 
 Rose V. Bartlett 171 
 v. Riddle 434 
 Rose Clare Lead Co. v. Madden 70 
 Rosen v. Rose 154 
 Rosenblat v. Perkins 180, 308 
 Rosenfield v. Newman 616 
 Rosenthal v. Freeburger 160 
 Rosewell v. Prior 599, 603, 604
 
 Ixxiv 
 
 TABLE OF CASES. 
 
 \_References are to Sections. '\ 
 
 Ross V. Campbell 718 
 
 V. Cobb 89 
 
 V. Dysart 362 
 
 V. Garrison 182 
 
 V. Gill 89, 90 
 
 V. McManigal 695 
 
 V. Schneider 236, 441 
 
 V. Stockwell 410, 672, 673 
 
 V. Swaringen 55 
 
 Rosseel v. Jarvis 478 
 
 Roth V. Collins 725 
 
 Rothbauer v. State 14 
 
 Rothschild v. Hudson 97 
 
 V. Williamson 215, 236 
 
 Rotter V. Goerlitz 357 
 
 Rowan v. Lytle 220, 230, 541 
 
 Rowbotham v. Pearce 360 
 
 Rowe V. Baber 673 
 
 V. Williams 661 
 
 Rowlands v. Voechting 52, 53 
 
 Rowsey v. Lynch 420 
 
 Roxbury v. Haston 651 
 
 Royce v. Guggenheim 354, 576 
 
 V. Latshaw 727 
 
 Rubery v. Jervoise 339 
 
 Rudolph V. Herman 670 
 
 Rump V. Schwartz 496 
 
 Russell V. Allard 523, 682, 700, 703 
 
 V. Doty 85 
 
 V. Erwin 3, 81 
 
 V. Fabyan 226, 336, 660, 667 
 
 V. McCartney 219 
 
 V. Richards 713 
 
 V. Rush 629 
 
 V. Russell 19, 563 
 
 Rutgers v. Hunter 343 
 
 Rutherford v. Ullman 705 
 
 Rutland &c. Co. v. King 672 
 
 Rutz V. Kehn 109 
 
 Ryan v. Clark 15, 458 
 
 V. Kirchberg 545 
 
 V. Mills 256 
 
 V. Potwin 121, 124 
 
 V. Wilson 585 
 
 Ryder v. Faxon 131 
 
 V. Mansell 703, 704 
 
 V. Robinson 138 
 
 Ryerson v. Quackenbush 
 
 430, 648, 658 
 
 Ryley v. Hicks 147 
 
 Sabastian v. Ford 682, 703 
 
 Sackett v. Barnum 31 
 
 V. Sackett 625, 639 
 
 Sage V. Halverson 682 
 St. Andrews Lutheran Church's 
 
 Appeal 331 
 
 St. Anthony Falls &c. Co. v. 
 
 Morrison 688 
 
 St. John V. Palmer 354 
 
 V. Quitzon 703 
 
 St. Joseph &c. R. Co. v. St. Louis 
 
 &c. R. Co. 397, 445, 446 
 
 St. Louis V. Kaime 610 
 
 V. Regenfuss 413 
 
 St. Louis &c. R. Co. V. Hart 651 
 
 V. Trigg 645 
 
 St. Louis &c. Yards v. Wiggins 
 
 Ferry Co. 565 
 
 St. Louis Pub. Schools v. Boat- 
 men's Ins. Co. 458, 460, 669 
 
 V. Hollingsworth 110 
 
 Salisbury v. Andrews 
 
 V. Shirley 
 Sallada v. James 
 Salmon v. Matthews 
 
 V. Smith 
 Salmon Falls Mfg Co. 
 
 dard 
 Salomon v. O'Donnell 
 Salop V. Crompton 
 Salzberger v. Mickel 
 Sampson v. Burnside 
 
 V. Henry 
 Samson v. Rose 
 Samuelson v. Cleveland &c. Co. 
 
 603, 605 
 San Antonio v. French 
 Sanborn v. Chamberlin 
 
 V. Colman 
 
 V. First Nat. Bank 
 
 V. French 
 
 V. Woodman 
 Sanders v. Ellington 
 
 V. Partridge 
 
 438, 439, 440, 447, 456, 458 
 
 353 
 328, 417, 455 
 572 
 667 
 364 
 God- 
 158, 437 
 281 
 627 
 388 
 39, 45 
 228, 559 
 484, 493 
 
 202 
 
 444 
 
 10 
 
 59 
 
 87 
 
 491 
 
 547, 569 
 
 V. Pope 
 
 V. Richardson 
 
 V. Sharp 
 
 V. Smith 
 Sands v. Pfeiffer 
 Sanford v. Herron 
 
 V. Johnson 
 Sanitary Dist. v. Cook 
 Sansing v. Risinger 
 Sargent v. Adams 
 
 V. Courrier 
 
 V. Pray 
 
 V. Robertson 
 
 V. Smith 
 
 V. Stark 
 
 V. Towne 
 Sarles v. Sarles 
 Sarsfield v. Healy 
 Sartwell v. Sowles 
 Sauer v. Meyer 
 Saunders' Case 
 Saunders v. Moore 
 Saunderson v. Hanson 
 Sausser v. Steinmetz 
 
 491 
 224 
 
 82 
 592 
 715 
 
 12 
 
 181 
 
 718 
 
 445 
 
 101, 110 
 
 53 
 412, 418, 420 
 135 
 566 
 606 
 635 
 635 
 178 
 180, 251 
 486 
 637 
 697 
 413 
 162
 
 TABLE OF CASES. 
 
 Ixxv 
 
 IReferences are to Sections.} 
 
 Sawyer v. Hanson 
 
 V. McGillicuddy 
 Say V. Smith 
 
 V. Stoddard 
 Sayers v. Hoskinson 
 Scales V. Anderson 
 Scanlan v. Wright 
 Schaefer v. Henkel 
 
 V. Silverstein 
 Schee v. Wiseman 
 Scheelky v. Koch 
 Scheerer v. Dickson 
 Scheldt V. Belz 
 Schenck v. Stumpf 
 Schile V. Brokhahus 
 Schilling v. Holmes 
 
 V. Klein 
 Schley v. Fryer 
 Schlicht V. Callicott 
 Schluter v. Harvey 
 Schmalz v. Mead 
 Schmidt v. Pettit 
 Schmitz V. Lauferty 
 Schmucker v. Sibert 
 Schmohl V. Fiddick 
 Schnittger v. Rose 
 Schneider v. Lord 
 
 V. Patterson 
 
 18, 25 
 
 614 
 
 112 
 
 174, 431 
 
 636, 637 
 
 2, 651, 654 
 
 87 
 
 81 
 
 504 
 
 171 
 
 340 
 
 629 
 
 328, 422 
 
 87, 687 
 
 371 
 
 266 
 
 555 
 
 463 
 
 50 
 
 670 
 
 378 
 
 393 
 
 154, 236 
 
 76 
 
 67 
 
 508 
 
 218 
 
 99 
 
 School District No. 11 v. Batsche 
 
 20, 222, 296 
 Schrage v. Miller 378 
 
 Schreiber v. Chicago &c. R. Co. 255 
 Schreiner v. Stanton 247, 367 
 
 Schroeder v. Gemeinder 387, 454 
 V. King 468 
 
 Schuisler V. Ames 206, 547, 549, 551 
 Schulenberg v. Harriman 446 
 
 Schulte V. Schering 70, 71 
 
 Schulting V. Schulting 637 
 
 Schutt V. Large 541 
 
 Schuylkill &c. R. Co. v. Schmoele 362 
 Schuyler v. Leggett 180, 199 
 
 V. Smith 206, 209 
 
 Schwandt v. Metzger &c. Co. 614 
 Schwartz v. Salter 627 
 
 Scmitz V. Lauferty 152 
 
 Scofield V. Lansing 565 
 
 Scott V. Beecher 
 
 202, 204, 205, 210, 549 
 
 V. Haverstraw &c. Co. 397 
 
 V. Levy 704 
 
 V. Lunt 422 
 
 V. Scott 669 
 
 V. Simons 576, 586, 588 
 
 V. Society &c. 418 
 
 V. Willis 114 
 
 Scriven v. Moote 572 
 
 Scudder v. Anderson 710 
 
 Seago V. Deane 199 
 
 Seaman v. Ashchermann 138, 162 
 
 V. Civill 428 
 
 Sears v. Smith 152, 201, 202, 267 
 Seaver v. Coburn 81, 471 
 V. Thompson 69 
 Seavey v. Cloudman 186, 293 
 Sebastian v. Hill 216 
 Second Nat. Bank v. O. E. Mer- 
 rill Co. 213, 720, 721 
 Second Unitarian Soc. v. Wood- 
 bury 91 
 Secor v. Pestana 210, 212, 255 
 Seeger v. Smith 519 
 Seevers v. Gabel 393 
 Seidel v. Bloeser 102 
 Selb v. Montague 422 
 Semmes v. United States 226 
 Serfling v. Andrews 369, 371 
 Sexton V. Carley 503, 682, 699 
 V. Chicago Storage Co. 
 
 446, 456, 494 
 
 V. Hull 33 
 
 Seyfert v. Bean 81 
 
 Schaaber v. Reading City 226 
 
 Shackford v. Coffin 581 
 
 Shaffer v. Stevens 53, 168, 570, 571 
 
 Shaft V. Carey 104, 353, 551 
 
 Shahan v. Herzberg 547 
 
 Shakespeare v. Alba 161 
 
 Shallenberger v. Ashworth 88 
 
 Shally v. Shute 353 
 
 Shamp V. White 337, 339 
 
 Shannon v. Comstock 140 
 
 Sharon Iron Co. v. Brie 471 
 
 Sharp V. Kensman 558 
 
 V. Milligan 391 
 
 Shattuck V. Gragg 626 
 
 V. Lovejoy 465, 659 
 
 Shanfelter v. Horner 504 
 
 Shaw V. Appleton 388 
 
 V. Farnsworth 5, 143, 145, 146 
 
 V. Hill 6 
 
 V. Hoffman 170, 557 
 
 V. McCarty 489 
 
 V. Mayer 49 
 
 V. Partridge 328, 447 
 
 V. Schietinger 219, 303 
 
 V. Wallace 110 
 
 Shawmut &c. Bank v. Boston 
 
 102, 474, 677 
 
 Sheaff V. Husted 709 
 
 Sheaffer v. Sheaffer 483 
 
 Shearer v. Handy 413 
 Shedlinsky v. Budwelser &c. Co. 121 
 
 Sheer v. Fisher 629 
 
 Sheets v. Allen 199 
 
 V. Joyner 350, 361 
 V. Selden 
 
 323, 384, 404, 467, 588, 676 
 
 Shelby v. Hearne 331 
 
 Sheldon v. Dunlap 660 
 
 v. Hamilton 412, 414 
 
 Shell v. West 682
 
 Ixxvi 
 
 TABLE OF CASES. 
 
 [References are to Sections. 1 
 
 Shelton v. Carrot 
 
 
 697 
 
 Sims 
 
 V. Cooper 
 
 
 
 257 
 
 V. Codman 
 
 
 352 
 
 V. 
 
 Humphrey 19 
 
 33, 
 
 230, 
 
 563 
 
 V. Doe 
 
 
 688 
 
 Singer Mfg. Co. v. Sayre 
 
 
 210 
 
 Shenandoah Land &c. Co. v. 
 
 Hlse 
 
 488 
 
 Sinnard v. McBride 
 
 
 
 651 
 
 Shepard v. Martin 
 
 
 682 
 
 Sinton v. Butler 
 
 
 
 593 
 
 V. Philbrick 
 
 
 572 
 
 Sisson V. Kaper 
 
 
 124, 
 
 126 
 
 Shepardson v. Elmore 
 
 
 417 
 
 Skaggs V. Elkus 
 
 
 207, 
 
 215 
 
 Shepherd v. Cummings 5, 
 
 180, 
 
 199 
 
 V. 
 
 Emerson 
 
 
 364, 
 
 365 
 
 Sheppard v. Rosenkrans 
 
 
 342 
 
 Skally V. Shute 
 
 354, 
 
 365, 
 
 381 
 
 Shepperd v. Thompson 
 
 
 554 
 
 Skidmore v. Pittsburg &c. R. Co. 
 
 84 
 
 Sherburne v. Jones 
 
 178, 
 
 570 
 
 Skinner v. Skinner 
 
 
 
 1 
 
 Sherlock v. Thayer 
 
 
 661 
 
 Slacum V. Brown 
 
 
 
 543 
 
 Sherman, Ex parte 
 
 
 466 
 
 Slator V. Brady 
 
 
 
 95 
 
 V. Cobb 
 
 
 346 
 
 Sloan 
 
 V. Cantrell 
 
 
 326, 
 
 388 
 
 V. Spaulding 
 
 
 703 
 
 Sloat 
 
 V. Rountree 
 
 
 285, 
 
 555 
 
 V. Wilder 
 
 121, 
 
 124 
 
 Slocum V. Despard 
 
 
 
 324 
 
 V. Williams 
 
 102, 
 
 354 
 
 Slyfield v. Cordingly 
 
 
 
 129 
 
 Sherrill v. Connor 
 
 625, 
 
 633 
 
 Smal 
 
 V. Clark 
 
 
 
 494 
 
 Sherwood v. Harral 
 
 
 389 
 
 Smalley v. Mitchell 
 
 
 
 686 
 
 V. Seaman 
 
 
 613 
 
 Smart v. Smith 
 
 
 
 688 
 
 Shew V. Call 
 
 
 682 
 
 Smell 
 
 ing V. Valley 
 
 
 159, 
 
 160 
 
 Shields v. Kimbrough 
 
 
 55 
 
 Smiley v. McLauthlin 
 
 
 319, 
 
 652 
 
 V. Lozear 
 
 
 555 
 
 V. 
 
 Van Winkle 
 
 
 
 446 
 
 Shiffer v. Broadhead 
 
 
 560 
 
 Smith, Ex parte 
 
 
 
 667 
 
 Shillito V. Pullan 
 
 
 428 
 
 V. 
 
 Allt 
 
 
 
 210 
 
 Shine v. Wilcox 
 
 
 636 
 
 V. 
 
 Asbell 
 
 
 
 474a 
 
 Shiner v. Abbey- 
 
 
 651 
 
 V. 
 
 Atkins 
 
 
 
 53 
 
 Shipley V. Fifty Asso. 
 
 602, 
 
 618 
 
 V. 
 
 Barrie 
 
 
 
 382 
 
 Shipman v. Mitchell 201, 
 
 210, 
 
 253 
 
 V. 
 
 Bell 
 
 206, 
 
 297, 
 
 555 
 
 Shirk V. Hoffman 
 
 
 215 
 
 V. 
 
 Benson 
 
 
 
 713 
 
 Shores v. Brooks 
 
 
 560 
 
 V. 
 
 Blake 
 
 
 
 663 
 
 Shouse V. Krusor 
 
 
 28 
 
 V. 
 
 Brinker 
 
 
 
 458 
 
 Shrewsbury's Case 
 
 
 627 
 
 V. 
 
 Brown 
 
 
 
 373 
 
 Shrewsbury v. Gould 
 
 
 321 
 
 V. 
 
 Bushy 
 
 
 
 323 
 
 Shrum v. Simpson 
 
 
 50 
 
 V. 
 
 Clark 
 
 
 
 273 
 
 Shultz V. Elliott 
 
 
 697 
 
 V. 
 
 Coe 
 
 
 177, 
 
 391 
 
 V. Spreain 
 
 
 668 
 
 V. 
 
 Coker 
 
 
 
 709 
 
 Shuman v. Smith 
 
 
 369 
 
 V. 
 
 Cooke 
 
 
 
 638 
 
 Shumway v. Collins 365, 
 
 383, 
 
 465 
 
 V. 
 
 Countryman 
 
 
 
 580 
 
 Shuver v. Klinkenberg 
 
 
 289 
 
 V. 
 
 Detroit &c. Asso 
 
 . 518,557 
 
 ,558 
 
 Siefke v. Koch 
 
 
 471 
 
 V. 
 
 Devlin 
 
 
 
 131 
 
 Siegel &c. Co. v. Colby 
 
 
 117 
 
 V. 
 
 Dodds 
 
 
 171, 
 
 349 
 
 Siems v. Pierre Sav. Bank 
 
 
 670 
 
 V. 
 
 Elliott 
 
 
 
 603 
 
 Sievers v. Brown 
 
 
 30 
 
 V. 
 
 Goodman 
 
 
 461, 
 
 466 
 
 Sigmund v. Howard Bank 
 
 
 
 V. 
 
 Harrison 
 
 328 
 
 447 
 
 658 
 
 349, 
 
 361, 
 
 366 
 
 V. 
 
 Hess 
 
 
 
 408 
 
 V. Newspaper Co. 
 
 
 75 
 
 V. 
 
 Hill 
 
 
 
 280 
 
 Silbar v. Ryder 
 
 
 70 
 
 V. 
 
 Houston 
 
 
 
 227 
 
 Sigur V. Lloyd 
 
 
 373 
 
 V. 
 
 Humble 
 
 
 
 412 
 
 Silsley v. Allen 
 
 197, 
 
 261 
 
 V. 
 
 Ingram 
 
 456, 
 
 457, 
 
 461 
 
 Silva V. Campbell 
 
 497, 
 
 498 
 
 V. 
 
 Jewett 
 
 
 
 635 
 
 Simers v. Saltus 
 
 
 703 
 
 V. 
 
 Kerr 
 
 404, 
 
 405, 
 
 543 
 
 Simkins v. Cordele Compress Co. 
 
 400 
 
 V. 
 
 Littlefield 
 
 
 
 
 Simmons v. Robertson 
 
 
 705 
 
 
 220, 221, 226, 
 
 227 
 
 230 
 
 255 
 
 V. Simmons 
 
 
 160 
 
 V. 
 
 McEnany 
 
 
 364. 
 
 365 
 
 Simonds v. Turner 
 
 
 415 
 
 V. 
 
 McLean 
 
 675, 
 
 677, 
 
 679 
 
 Simonton v. Loring 
 
 
 624 
 
 V. 
 
 Marrable 
 
 
 
 578 
 
 Simpkins v. Rogers 
 
 6 
 
 185 
 
 V. 
 
 Martin 
 
 
 
 102 
 
 Simpson v. Applegate 
 
 257 
 
 280 
 
 V. 
 
 Meech 
 
 
 
 50 
 
 V. Wood 
 
 121 
 
 124 
 
 V. 
 
 Miller 
 
 
 109, 
 
 495 
 
 Sims V. Bond 
 
 
 158 
 
 V. 
 
 Mundy 
 
 
 
 688
 
 TABLE OF CASES. 
 
 Ixxvii 
 
 \_References are to Sections.'} 
 
 Smith V. Newman 690 
 
 V. Niles 322 
 
 V. Park 93, 555, 719, 723 
 
 V. Peat 449 
 
 V. Pendergast 539 
 
 V. Phillips 371 
 
 V. Price 389, 728 
 
 V. Putnam 466 
 
 V. Raleigh 354, 365 
 
 V. Rector &c. 374 
 
 V. Reeder 557, 558 
 
 V. Saint Michael 23 
 
 V. Saratoga Co. &c. Ins. Co. 496 
 
 V. Scanlan 704 
 
 V. Schultz 50, 52, 53 
 
 V. Shepard 364 
 
 V. Simons 45 
 
 V. Singleton 224 
 
 V. Smith 151, 242, 258, 440, 691 
 
 V. State 579, 585, 608 
 
 V. Stewart 3, 655 
 
 V. Sutton 682 
 
 V. Turnley 433 
 
 V. Waggoner 714 
 
 V. Walsh 579 
 
 V. Whitbeck 503 
 
 V. White 124 
 
 V. Whitney 725 
 
 V. Wise 365 
 
 V. Wooding 30 
 
 Smithwick v. Ellison 573 
 
 Smyth V. Tankersley 48, 53 
 
 Smythe v. Sprague 164 
 
 Snead v. Tretjin 575 
 
 Snedaker v. Powell 21 
 
 Sneed v. Jenkins 363 
 
 Snelson v. Franklin 435 
 
 Snook V. Sutton 89 
 
 Snow V. Pulitzer 370, 371 
 
 Snowden v. Memphis Park Asso. 444 
 
 Snydam v. Jackson 628 
 
 Snyder v. County Com'rs 132 
 
 V. Hersberg 108 
 
 V. Parker 299, 442 
 
 Sobey v. Brisbee 152 
 
 Sohier v. Eldredge 635 
 
 Somers v. Joyce 47 
 
 V. Loose 488 
 
 Sommers v. Reynolds 468 
 
 Sortwell V. Hughes 121 
 
 Souders v. Vansickle 25 
 
 Souffrain v. McDonald 387 
 
 Soule V. Union Bank 389 
 
 Sourwine v. Truscott 137a 
 
 Souter V. Drake 435 
 
 South V. Marcum 701 
 
 Southard v. Central R. Co. 446 
 
 Southern R. Co. v. Georgia 644 
 
 Sovereign v. Ortmann 38 
 
 Spafford v. Meagley 393 
 
 Spalding v. Archibald 38 
 
 Spalding v. Conzelman 160 
 
 V. Hall 220, 233 
 Spalding Hotel Co. v. Emerson 384 
 
 Sparkes v. Smith 458 
 
 Sparkman v. Gove 463 
 
 Spaulding v. Hallenbeck 318 
 
 V. M'Osker 503 
 
 Spear v. Fuller ^465, 482, 487 
 
 v. Orendorf 336 
 
 Spears v. McKay 563 
 
 V. Robinson 31 
 
 Speers v. Flack 555 
 
 Spellman v. Bannigan 592, 593 
 
 Spencer's Case 328, 329, 335, 377 
 
 Spencer v. Burton 367 
 
 v. Commercial Co. 
 
 468, 556, 561, 718 
 
 V. Hamilton 672 
 
 V. Lewis 570, 571 
 
 V. World's Columbian Expo- 
 sition 50 
 Sperry v. Pond 114 
 
 V. Sperry 485 
 
 Spicer v. Spicer 656 
 
 Spies v. Voss 216, 548 
 
 Spillman v. Brown 63, 110 
 
 Spooner v. French 519 
 
 Sprague v. Quinn 270 
 
 Springer v. Chicago &c. Co. 465, 495 
 
 V. De Wolf 462, 463 
 Springs v. Schenck 474a, 699 
 
 Spruill v. Arrington 671 
 
 Squires v. Huff 197 
 
 Stabler v. Cowman 320 
 
 Stack V. Harris 587 
 
 Stackberger v. Mosteller 153 
 
 Stacy V. Bostwick 695, 696 
 
 V. Vermont Central R. Co. 
 
 2, 654, 655 
 
 Stadden v. Hazzard 26 
 
 Stafford v. Ingersol 562 
 
 V. Staunton 132 
 
 Stagg V. Eureka &c. Co. 699 
 
 Stamper v. Sunderland 23 
 
 Stamps V. Cooley 492 
 Stanford Land Co. v. Steidle 255 
 
 Staniforth v. Fox 142 
 Stanley v. Hotel Corporation 
 
 121, 123, 141 
 
 V. Turner 661 
 
 Stansbury v. Fringer 387 
 
 Staple V. Spring 603 
 
 Staples V. Emery 573 
 
 Starbird v. Cranston 462 
 
 Stark V. Miller 641 
 
 Starkey v. Horton 348 
 
 Starr v. Jackson 626, 627 
 
 State V. Austin 46, 56 
 
 v. Boyce 608, 692 
 
 V. Burr 566 
 
 V. Burwell 46, 50
 
 Ixxviii 
 
 TABLE OF CASES. 
 
 [References are to Sections.^ 
 
 State V. Curtis 
 V. Fort 
 V. Howell 
 V. Jackson 
 V. McBride 
 V. McClay 
 V. Martin 
 V. Massey 
 V. Moore 
 V. Page 
 V. Smith 
 V. Surles 
 V. Votaw 
 V. Whitener 
 
 20, 21 
 
 201 
 
 709 
 
 626 
 
 648 
 
 549 
 
 328, 444, 455, 456 
 
 610 
 
 566 
 
 6, 59, 69 
 
 21 
 
 56 
 
 700 
 
 634 
 
 Stater v. Kimbro 340 
 
 Stearns v. Godfrey 115, 327 
 
 V. Sampson 228, 558, 559 
 
 Stebbins v. Peck 61 
 
 Stedman v. Gassett 656 
 
 V. Mcintosh 251 
 
 Steed V. Cragh 88 
 
 V. Hinson 658 
 
 Steele v. Anheuser-Busch &c. 
 
 Asso. 199 
 
 V. Bond 387 
 
 V. Frick 47 
 
 V. Steele 19 
 
 Steen v. Scheel 555 
 
 Stees V. Kranz 384 
 
 Steese v. Johnson 272 
 
 Steffens v. Earl 215, 253, 261 
 
 Stein V. Jones 453 
 
 Steinfleld v. Wilcox 143 
 
 Steinhardt v. Buel 137a 
 
 Steinhauser v. Kuhn 257, 476 
 
 Steketee v. Pratt 197 
 
 Stephani v. Catholic Bishop 415 
 
 Stephens v. Brown 255, 474a 
 
 V. Ely 718 
 
 Stephenson v. Osborne 87 
 
 Sterling v. Warden 228, 559 
 
 Stern v. Thayer 539 
 
 Sterrett v. Wright 655 
 
 Stetson V. Briggs 83, 447 
 
 V. Day 625, 626, 637, 639 
 
 Steubben v. Granger 132 
 
 Stevens v. Andrews 655 
 
 V. Dewing 58 
 
 V. Haskell 132 
 
 V. Hulin 222, 227 
 
 V. Pantlind 115 
 
 V. Pierce 575, 576 
 
 V. Rose 625, 626, 630 
 
 Stevenson v. Hancock 428 
 
 V. Lambard 460, 669 
 
 Steward v. Winters 382, 383, 384 
 
 Stewart v. Apel 74 
 
 V. Doughty 47, 53 
 
 V. Keener 699 
 
 V. Lanier House Co. 672, 673 
 
 V. Long Island R. Co. 446, 455 
 
 Stewart v. Mumford 
 
 V. Murrell 
 
 V. Perkins 
 
 V. Pier 
 
 V. Putnam 
 
 V. Smiley 
 
 V. Sprague 
 Stickney v. Burke 
 
 V. Stickney 
 Stier V. Surget 
 Stillman v. Harvey 
 Stimmel v. Waters 
 Stinson v. Dousman 
 
 V. Hardy 
 Stobie V. Dills 
 Stockdale v. Dunlop 
 Stockett V. Howard 
 
 v. Watkins 
 Stockwell V. Hunter 
 
 V. Marks 
 Stoddard v. Waters 
 
 V. Whiting 
 Stoddert v. Newman 
 
 538 
 
 253, 279 
 
 669 
 
 114, 388 
 
 600 
 
 93, 422 
 
 448, 549 
 
 302 
 
 54 
 
 661 
 
 439 
 
 452 
 
 34 
 
 36, 37 
 
 81, 539, 543 
 
 157 
 
 377 
 
 26 
 
 102, 677 
 
 255 
 
 66 
 
 74 
 
 654 
 
 Stoetzele v. Swearingen 600 
 
 Stoker v. Wilson 140 
 
 Stokes V. Cooper 365 
 
 V. McKibbin 697 
 
 Stoltz V. Kretschmar 641 
 
 Stone, Succession of 447 
 
 Stone V. Clark 99 
 
 V. Lahey 558 
 
 V. Patterson 670 
 
 V. Proctor 573 
 
 V. St. Louis Stamping Co. 
 
 340, 342 
 
 V. Wood 81 
 
 Stoops V. Devlin 201 
 
 Stoppelkamp v. Mangeot 216 
 
 Storch V. Carr 653 
 
 V. Harvey 341 
 
 Stose V. Heissler 346 
 
 Stott V. Rutherford 321 
 
 Stoudemeier v. Williamson 93 
 
 Stoughton, Appeal of 89 
 
 Stout V. Folger 463 
 
 v. Merrill 703 
 
 Stover V. Hazelbaker 497 
 
 Strain v. Gardner 52 
 Stratford Turf Asso. v. Fitch 123 
 
 Strauss v. Hamersley 616 
 Street v. Chicago Wharfing &c. 
 
 Co. 67 
 
 V. Nelson 635 
 
 Streeter v. Ilsley 700 
 
 V. Streeter 349 
 Strickland v. Stiles 7, 84 
 
 Strohlburg v. Jones 642 
 
 Strohmaier v. Zeppenfeld 346 
 
 Strohmeyer v. Zeppenfeld 324 
 Strong V. Garfield 3, 437, 655 
 
 Strousse v. Bank 339
 
 TABLE OF CASKS. 
 
 Iyyiy 
 
 Stubbings v. Evanston 
 Stubbs V. Parsons 
 Stultz V. Dickey 
 V. Fleming 
 V. Locke 
 
 Stuyvesant v. Davis 495, 497, 498 
 
 V. Mayor &c. 332, 334, 372 
 
 Style V. Hearing 349 
 
 Suchaneck v. Smith 519 
 
 Suddarth v. Robertson 702 
 
 Suffern v. Townsend 488 
 
 Sullivan v. Carberry 555, 716 
 
 V. Gary 251 
 
 V. Enders 198 
 
 V. O'Hara 639 
 
 Sully V. Schmitt 354, 355, 360 
 
 Sumner v. Williams 350 
 
 Sunasack v. Morey 581, 583 
 
 Sunday Lake Mining Co. v. 
 
 Wakefield 491 
 Sutherland v. Goodnow 
 
 337, 347, 431, 471 
 
 Sutliff V. Atwood 447, 449 
 
 Sutphin V. Seebas 681 
 
 Sutton V. Casselleggi 695 
 
 V. Head 382 
 
 V. Hiram Lodge 116 
 
 V. Mandeville 650 
 
 V. Temple 574, 576, 578, 579 
 
 Suydam v. Jackson 681 
 
 Swank v. St. Paul City R. Co. 347 
 
 Swan V. Clark 236 
 
 Swanner v. Swanner 14 
 
 Swatman v. Ambler 75 
 
 Sweeney v. Garrett 504 
 
 Sweet v. Myers 716 
 
 V. Cutts 624 
 
 V. Patrick 370 
 
 Swift V. Dean 702 
 
 V. Gage 699 
 
 V. Heath 544 
 
 V. Moseley 10 
 
 V. New Durham Lumber Co. 1, 3 
 
 Switzer v. Allen 376 
 
 V. Gardner 542 
 
 Swope V. Hopkins 195 
 
 Swords V. Edgar 603, 605, 607 
 
 Swyft V. Eyres 110 
 
 Sykes v. Benton 84 
 
 Sylvester v. Ralston 90 
 
 Syme v. Sanders 682 
 
 Symonds v. Hall 52, 53 
 
 Szathmary v. Adams 601 
 
 Taft V. Brewster 81 
 
 Taggard v. Roosevelt 152 
 
 Tainter v. Cole 86 
 
 V. Lombard 158 
 
 Tait V. Central &c. Asylum 708 
 
 IReferences are to Sections.l 
 
 362, 680 
 
 413 
 
 569 
 
 433 
 397, 629 
 
 Talamo v. Spitzmiller 
 
 
 
 197 
 
 Talbot V. Cruger 
 
 
 
 718 
 
 v. Hill 
 
 
 
 570 
 
 V. Whipple 
 
 538, 
 
 716, 
 
 727 
 
 Talbott V. English 
 
 64, 
 
 355, 
 
 356 
 
 Tallman v. Bresler 
 
 
 
 458 
 
 V. Coffin 
 
 
 329, 
 
 377 
 
 V. Murphy 
 
 
 
 356 
 
 Tantlinger v. Sullivan 
 
 
 289, 
 
 568 
 
 Tanton v. Van Alstine 
 
 
 
 195 
 
 Tarlotting v. Bokern 
 
 
 
 299 
 
 Tarpy v. Blume 
 
 
 
 363 
 
 V. Blackburne 
 
 
 711, 
 
 728 
 
 V. Crowson 
 
 486, 
 
 496, 
 
 503 
 
 V. Field 
 
 
 
 634 
 
 V. McClure 
 
 
 
 655 
 
 V. McCormick 
 
 
 
 456 
 
 Tatem v. Chaplin 
 
 
 331, 
 
 385 
 
 Tatum V. Thompson 
 
 
 
 679 
 
 Taunton v. Costar 
 
 
 
 558 
 
 Tavener's Case 
 
 
 
 669 
 
 Taylor v. Bradley 
 
 54, 
 
 140, 
 
 616 
 
 V. Cole 
 
 
 
 444 
 
 V. Coney 
 
 
 55 
 
 , 56 
 
 V. Cooper 
 
 
 369, 
 
 370 
 
 V. DeBus 447, 
 
 450, 
 
 456, 
 
 462 
 
 V. Frohock 
 
 
 
 114 
 
 V. Hart 
 
 393, 
 
 675, 
 
 678 
 
 V. King 
 
 
 
 125 
 
 V. Koshetz 
 
 
 
 384 
 
 V. Lehman 64, 
 
 410, 
 
 672, 
 
 673 
 
 V. Levy 
 
 
 
 121 
 
 V. Moffatt 
 
 
 
 431 
 
 V. O'Brien 
 
 
 
 225 
 
 V. Shum 
 
 
 456, 
 
 458 
 
 V. Soldati 
 
 
 
 135 
 
 V. Sweet 
 
 
 
 125 
 
 V. Syme 
 
 
 
 394 
 
 V. Taylor 
 
 
 35, 
 
 171 
 
 V. Tuson 
 
 
 
 258 
 
 V. Winters 
 
 
 
 213 
 
 Tays V. Ecker 
 
 
 
 394 
 
 Teft V. Hinchman 
 
 
 
 256 
 
 Ten Eyck v. Rector &c. 415 
 
 V. Sleeper 135 
 
 Terrell v. Cunningham 657 
 
 Terstegge v. First German &c. 
 
 Soc. 340 
 
 Tew V. Jones 227, 257, 654 
 
 Tewksbury v. Magraff 698 
 
 Texas &c. Co. v. Lawson 326 
 
 Texas &c. R. Co. v. Bayliss 52, 645 
 
 V. Mangum 579 
 
 v. Settegast 497 
 
 Texas Land Co. v. Williams 692 
 
 Texas Loan Agency v. Heming 599 
 
 Thayer v. Luce 158, 437 
 
 V. Society &c. 697, 702 
 
 V. Waples 474a 
 
 Theobalds v. Duffoy 111 
 
 Thiebaud v. First Nat. Bank 339
 
 Ixxx 
 
 TABLE OF CASES. 
 
 [References are to Sections.l 
 
 Thomas v. Cook 
 
 
 543 
 
 V. Cront 
 
 
 711 
 
 V. Bering 
 
 
 138 
 
 V. Frost 
 
 
 555 
 
 V. Hatch 
 
 
 61 
 
 V. Nelson 
 
 180, 
 
 548 
 
 V. Pemberton 
 
 
 461 
 
 V. Pickering 
 
 
 657 
 
 V. Sanford &c. Co. 
 
 
 548 
 
 V. Vonkapff 
 
 
 335 
 
 V. Walmer 
 
 
 504 
 
 V. Wiggers 
 
 
 104 
 
 V. Wright 
 
 197, 
 
 251 
 
 V. Zumbalen 
 
 
 542 
 
 Thomasson v. Wilson 
 
 
 494 
 
 Thompson v. Bower 
 
 
 651 
 
 V. Clemens 
 
 
 592 
 
 V. Cummings 
 
 
 631 
 
 V. Fischesser 
 
 
 413 
 
 V. Gray 
 
 
 438 
 
 V. Gregory 
 
 
 45 
 
 V. Lawley 
 
 
 171 
 
 V. Leach 
 
 
 79 
 
 V. Marsh 
 
 
 554 
 
 V. Mawhinney 
 
 
 48 
 
 V. Pendell 
 
 675, 
 
 679 
 
 V. Phenix Ins. Co. 
 
 
 443 
 
 V. Pioche 
 
 
 707 
 
 V. Rose 
 
 329, 
 
 377 
 
 V. Shattuck 
 
 
 410 
 
 Thompson &c. R. Co. v. Young 725 
 Thomson-Houston &c. Co. v. Du- 
 
 rant &c. Co. 410 
 
 Thorndike v. Burrage 397, 555 
 
 V. Norris 699, 700 
 
 Thornston v. Payne 141, 142 
 
 Thornton v. Dixon 86 
 
 V. Strauss 31, 35 
 
 Thorp V. Bradley 159 
 
 Thrall v. Omaha Hotel Co. 689 
 Thresher v. East London &c. Co. 713 
 
 Throop V. Broadus 371 
 
 Thropp V. Field 104, 496 
 
 Thruston v. Minke 323 
 
 Thum V. Rhodes 574, 576 
 
 Thunder v. Belcher 25, 180 
 
 Thurber v. Dwyer 199, 251 
 
 Thursby v. Plant 447 
 
 Tibbals v. Iffland 456 
 
 Tibbits V. Percy 324 
 
 Tibeau v. Tibeau 541 
 Tiefenbrun v. Tiefenbrun 242, 440 
 
 Tignor v. Bradley 661 
 
 V. Toney 52, 53 
 
 Tiley v. Moyers 354, 358 
 
 Tilford V. Fleming 421, 426 
 
 Tilghman v. Little 703 
 
 Tilleny v. Knoblauch 337 
 
 Tillman v. Fuller 141, 152 
 
 Tillotson V. Boyd 462 
 
 Tillotson V. Doe 474a 
 
 Times Co. v. Seibrecht 496 
 
 Timmins v. Rowlinson 192, 564 
 
 Tinder v. Davis 654 
 
 Tinney v. Ashley 323 
 
 Tinsley v. Craige 49 
 
 V. Tinsley 2 
 
 Tipping V. Robbins 86 
 
 Toan V. Pline 181 
 
 Tobey v. County of Bristol 346 
 
 Tobin V. Young 257, 474a 
 
 Todd V. Flight 599, 603, 605 
 
 V. Hall 495 
 
 Toler V. Seabrook 656 
 
 V. Slater 87 
 
 Tolle V. Orth 201, 206, 209 
 
 Tomkins v. Lawrence 195, 219 
 
 Tomle V. Hampton 607 
 
 Tompkins v. Staiger 3 
 
 Toms V. Williams 111 
 
 Tone V. Brace 351 
 
 Toner v. Meussdorffer 580 
 
 Tooker v. Grotenkemper 350 
 
 Toole V. Beckett 612 
 
 Topping V. Parish 163 
 
 V. Sadler 88 
 
 Torrent v. Muskegon &c. Co. 565 
 
 Torrey v. Burnett 716 
 
 V. Walles 411 
 
 Torriano v. Young 625, 627 
 
 Toun V. Armstrong 598 
 
 Toupin V. Peabody 71, 167 
 
 Towell V. Etter 558 
 
 Towery v. Henderson 686 
 
 Towey v. Wallis 328 
 
 Town V. Armstrong 594 
 
 Towne v. Bowers 570 
 
 V. Butterfield 30, 555, 685, 696 
 
 V. Thompson 576, 579, 583, 585 
 
 Townley v. Bedwell 387 
 
 Townsend v. Albers 548 
 
 V. Gilsey 360 
 
 V. Hubbard 320 
 
 V. Isenberger 53, 645 
 
 V. Scholey 462 
 
 V. Sharp 160 
 
 Townshend v. Stangroom 412 
 
 Townson v. Tickell 456 
 
 Trabue v. McAdams 456, 458 
 
 Tracy v. Albany Exc. Co. 343, 369 
 
 Tradesman Pub. Co. v. Knox- 
 
 ville &c. Co. 444 
 
 Trainer v. Trumbull 96 
 
 Trammell v. Chambers 111 
 
 V. Trammell 45 
 
 Trapnall v. Merrick 80, 650 
 
 Trask v. Graham 328, 455 
 
 V. Wheeler 494, 495 
 
 Trathen v. Kipp 672 
 
 Traynor v. Johnson 497
 
 TABLE OF CASES. 
 
 Ixxxi 
 
 iReferenees are to Sections.'] 
 
 Treadway v. Sharon 711 
 
 Treadwell v. Bulkley 79 
 
 Tredt v. Wheeler 581 
 
 Tresham v. Lamb 631 
 
 Tress v. Savage 256 
 
 Trevivan v. Lawrence 84 
 
 Tribble v. Frame 558 
 
 Trimble v. Ward 101 
 
 Triscony v. Orr 10 
 
 Tritton v. Frote 343 
 
 Trobock v. Caro 122 
 
 Troewert v. Decker 61 
 
 Trout V. Perclful 388 
 
 Trowbridge v. Wetherbee 131 
 
 Trower v. Wehner 612 
 
 Troxell v. Wheatley 439 
 
 Troy &c, R. Co. v. Kerr 9 
 
 Trubee v. Miller 653 
 
 Trull V. Granger 143, 367a, 369 
 
 Truss V. Old 635 
 
 Trust Co. V. Palmer 357 
 
 Trustees v. Jennings 474a, 479 
 
 V. Spencer 80 
 
 Trustees &c. v. Burt 686 
 
 V. Cowen 331 
 
 V. Dunn 690 
 
 V. Meetze 257, 474a, 479 
 
 V. Streeter 446 
 
 Tryon v. Davis 88 
 
 Tscheider v. Biddle 346 
 
 Tubb V. Fort 658 
 
 Tucker v. Adams 1, 29 
 
 V. Byers 3 
 
 V. Whitehead 707 
 
 Tufts V. DuBignon 702 
 
 Tully V. Dunn 549, 661 
 
 Tumbridge v. Read 98 
 
 Tunis V. Grandy 354, 365, 669 
 
 Turley &c. Inst. v. Memphis 412 
 
 Turner v. Bachelder 53 
 
 V. Johnson 431 
 
 V. Revere Water Co. 414 
 
 V. Richardson 461 
 
 V. Townsend 404, 588, 590 
 
 Tuttle v. G. H. Gilbert Mfg. Co. 
 
 579, 592 
 
 V. Harry 58 
 
 v. Lane 223 
 
 V. Langley 180, 194, 568 
 
 V. Reynolds 257, 682 
 
 Twiss V. Baldwin 361 
 
 V. Boehmer 1 
 
 Twycross v. Fitchburg R. Co. 415 
 
 Twyman v. Hawley 183, 314 
 
 Tyler v. Davis 697 
 
 V. Disbrow 583 
 
 V. Giesler 456 
 
 V. Heidorn 58, 649 
 
 V. Williamson 109 
 
 Tyson v. Chestnut 363, 369 
 
 Jones L. & T. — vi 
 
 U 
 
 Uhl V. Pence 30 
 
 Uhlig V. Garrison 691 
 
 Uhrig V. Williamsburg City Fire 
 
 Ins. Co. 346 
 
 Ullman v. Herzberg 564 
 
 Underbill v. Collins 543, 549, 550 
 Underwood v. Ainsworth 87 
 
 V. Birchard 361, 366 
 
 Unger v. Bamberger 238, 340 
 
 Unglish V. Marvin 50 
 
 Union &c. Ins. Co. v. Tillery 713, 715 
 Union Bank v. Kansas City Bank 443 
 Union Banking Co. v. Gittings 
 
 149, 153 
 Union Brewing Co. v. Meier 87 
 
 Union Depot Co. v. Chicago &c. 
 
 R. Co. 40 
 
 Union Water Power Co. v. Pin- 
 
 gree 679 
 
 United Order &c. v. Fitzgerald 128 
 United States v. Appleton 107 
 
 V. Bostwick 628, 631 
 
 v. Gratiot 112 
 
 V. Parrott 638 
 
 United States Trust Co. v. Wa- 
 bash &c. R. Co. 9, 443 
 University of Vermont v. Joslyn 458 
 UpdegrafE v. Lesem 716, 725, 727 
 Updike V. Campbell 121, 123 
 Upper Appomattox Co. v. Hamil- 
 ton 59 
 Upton V. Greenlees 365 
 V. Townend 354, 365 
 Uridias v. Morrell 228 
 Usher v. Moss 555 
 Utah L. & T. Co. v. Garbutt 
 
 93, 159, 216, 253 
 Utah Optical Co. v. Keith 
 
 148, 474, 677 
 
 Vai V. Weld 404, 612 
 
 Vale V. Trader 675, 678 
 
 Valentine v. Healey 86 
 
 Valle V. Fargo 417 
 
 Van V. Rouse 681 
 
 Van Alstyne v. Van Slyck 320 
 
 Vanatta v. Brewer 487 
 
 Van Bergen v. Van Bergen 642 
 
 Van Beuren v. Wotherspoon 375 
 Van Blarcom v. Kip 474a 
 
 Vanbuskirk v. McNaughton 121 
 
 Van Campden v. Depue 303 
 
 Vance v. Johnson 25 
 
 Van Cortlandt v. Underbill 379 
 Vandegrift v. Abbott 
 
 93, 130, 672, 673
 
 Ixxxii 
 
 TABLE OF CASES. 
 
 [References are to Sections.} 
 
 Vandenheuvel v. Storrs 29 
 
 Vanderford v. Foreman 204 
 
 Vanderkarr v. Vanderkarr 350 
 
 Van Doren v. Everitt 569 
 
 Van Driel v. Rosierz 424 
 
 Van Hoozier v. Hannibal &c. R. 
 
 Co. 645 
 
 Van Home v. Grain 460 
 
 Van Ness v. Pacard 
 
 712, 713, 716, 725, 727 
 
 Van Rensselaer v. Ball 649 
 
 V. Bonesteel 455 
 
 V. Bradley 460, 669 
 
 V. Dennison 525 
 
 V. Gallup 669 
 
 V. Jewett 503, 661, 666 
 
 V. Jones 458, 460, 666, 669 
 
 V. Penniman 555 
 
 V. Plainer 447, 666 
 
 Van Schaick v. Third Ave. R. Co. 660 
 
 Van Studdiford v. Kohn 272 
 
 Van Wagner v. Van Nostrand 422 
 
 Van Wicklen v. Paulson 648, 670 
 
 Van Winkle v. Hinckle 474a 
 
 Van Wormer v. Crane 395 
 
 Varley v. Coppard 468, 469 
 
 Varner v. Rice 410 
 
 Varney v. Stevens 413, 637, 690 
 
 Vason V. Augusta 605, 607 
 
 Vass V. Wales 404 
 
 Vaughan v. Matlock 319 
 
 Vaughn v. Locke 422 
 
 Veale v. Warner 682 
 
 Vegely v. Robinson 270 
 
 Vere v. Loveden 464 
 
 Vermilya v. Austin 365 
 
 Vernam v. Smith 351 
 
 Vernon v. Smith 389 
 
 Verplanck v. Wright 326, 329 
 
 Vick V. Ayres 34 
 
 Vicksburg &c. R. Co. v. Ragsdale 496 
 
 Victory v. Stroud 11 
 
 Vincent v. Buhler 87 
 
 V. Corbin 257, 305, 474a 
 
 V. Defield 367 
 
 V. Spicer 632 
 
 Vinson v. Flynn 558, 682. 
 
 Vinz V. Beatty 61 
 
 Virden v. Ellsworth 333 
 
 Virginia Min. & Imp. Co. v. 
 
 Hoover 12 
 
 Vivian v. Champion 410 
 
 V. Moat 474a 
 
 Voege V. Ronalds 154, 340 
 
 Voiht V. Resor 12 
 
 Voltz V. Harris 662 
 
 Vorrath v. Burke 594 
 
 Verse V. Des Moines &c. Co. 420, 555 
 Voss V. King 201, 202, 695, 701 
 
 Vrooman v. McKaig 202 
 
 Vyse V. Wakefield 409 
 
 W 
 
 Wacholz V. Griesgraber 368 
 
 Waddell v. Defet 395, 397 
 
 Wade V. Baker 89 
 
 V. Halligan 349 
 
 Wadley v. Williams 50 
 
 Wadman v. Calcraft 491 
 
 Wafer v. Mocato 492 
 Wakefield v. Sunday Lake Min. 
 
 Co. 502 
 
 Wakeman v. Johnson 524 
 
 Waggener v. McLaughlin 690 
 
 Wahl V. Barroll 330, 428, 429, 463 
 
 Wainscott v. Silvers 393 
 
 Wait, Ex parte 650 
 
 Waite V. O'Neil 392 
 
 V. Teeters 432 
 
 Walden v. Bodley 474a 
 
 V. Conn 432, 642, 644 
 
 Waldo V. Hall 352, 435 
 
 Walker's Case 658 
 
 Walker v. Clifford 644 
 
 V. Ellis 255 
 
 V. Engler 495, 497 
 
 V. Fitts 48, 51 
 
 V. Forbush. 548 
 
 V. Gilbert 409, 612 
 
 V. Harper 682 
 
 V. Harrison 413 
 
 V. Hatton 397 
 
 V. Moore 140 
 
 V. Physick 322, 463 
 
 V. Reeves 458 
 
 V. Shakelford 199 
 
 V. Sharpe 273 
 
 V. Tucker 631 
 
 V. Walker 642 
 
 V. Whittemoi-e 415 
 
 Wall V. Goodenough 474a 
 
 V. Hinds 416, 447, 713 
 
 V. Hinson 163 
 
 Wallace v. Bahlhorn 348 
 
 V. Kennelly 543 
 
 V. Lent 128, 583 
 
 V. Rippon 87 
 
 V. Scoggins 159, 160 
 
 Waller v. Deane 75 
 
 V. Morgan 20, 432 
 
 V. Vermitt 289 
 
 Wallis V. Harrison 44 
 
 Walls V. Atcheson 540 
 
 V. Preston 47, 52, 53, 209 
 
 Walsh V. Martin 336, 436, 442 
 
 V. Packard 333 
 
 V. Watson 331 
 
 Walter v. Maunde 668 
 
 Walters v. Hutchins 635 
 
 v. Meyer 29 
 
 Walton V. Cronly 458 
 
 V. File 558
 
 TABLE OF CASES. 
 
 Ixxxiii 
 
 [References are to Sections.1 
 
 Walton V. Stafford 
 V. Waterhouse 
 Wampler v. Weinmann 
 Wamsganz v. Wolff 
 
 661 
 392 
 679 
 254 
 
 Waples V. City of New Orleans 
 
 258, 292 
 
 Ward V. Bull 654, 676 
 
 V. Dewey 565 
 
 V. Fagin 586, 613 
 
 V. Hasbrouck 152, 154 
 
 V. Lumley 541 
 
 V. Neal 381 
 
 V. Robertson 132 
 
 V. Sheppard 636 
 
 V. Small 18 
 
 V. Ward 88 
 
 V. Warner 2 
 
 Warden v. Etter 254 
 
 Warder v. Henry 631 
 
 Ware v. Grand Junction &c. Co. 9 
 
 Waring v. King 207, 554, 555 
 
 Warner v. Abbey 46, 50, 53 
 
 V. Hale 152, 159, 217 
 
 V. Hitchins 393 
 
 V. Hoisington 51 
 
 V. Tanner 111, 114, 171 
 
 Warnock v. Harlow 654 
 
 Warren v. Ferdinand 652 
 
 V. Leland 74, 439 
 
 V. Lyons 221 
 
 V. Wagner 354, 365, 675, 677 
 
 Warren &c. Mfg. Co. v. Holbrook 154 
 
 Warren Co. v. Gans 635 
 
 Washburn, In re 461 
 
 Washburn v. Burns 88 
 
 Washington v. Conrad 682, 697, 699 
 
 Washington Bank v. Brown 653 
 
 Washington Gas Co. v. Johnson 411 
 
 Waterhouse v. Schlitz Brew. Co. 609 
 
 Waterman v. Harkness 417 
 
 V. Johnson 99 
 
 Waters v. Roberts 266 
 
 V. Williamson 261 
 
 V. Young 261 
 
 Watertown v. White 9 
 
 Watkins v. Goodall 614 
 
 Watriss v. First Nat. Bank 718 
 
 Watrous v. Allen 382 
 
 Watson V. Alexander 705 
 
 V. Brainard 3 
 
 V. Fletcher 497 
 
 V. Gardner 377 
 
 V. Harrigan 641, 644 
 
 V. Hunkins 430 
 
 V. Janion 137 
 
 V. O'Hern 59 
 
 V. Pugh 31 
 
 Watson &c. Co. v. Casteel 455 
 
 Wattles V. South Omaha &c. Co. 
 
 392, 678 
 Watts V. Coffin 324 
 
 Way V. Holtan 659 
 
 V. Reed 448, 453 
 
 Weathersby v. Sleeper 725 
 
 Weatherly v. Baker 431 
 
 Weaver v. Coumbe 71 
 
 V. Shipley 98, 99 
 
 V. Southern Oreg. Co. 5 
 
 V. Wood 59, 137a 
 
 Webb V. Plummer 321 
 
 V. Russell 328, 428, 429, 659 
 
 V. Seekins 174 
 
 Webber v. Shearman 202 
 
 Webster v. Blodgett 160 
 
 V. Nichols 465 
 
 Weddall v. Capes 160 
 
 Weed V. Crocker 5, 143 
 
 V. Lindsay 141, 146, 285 
 
 Weeks v. Sly 272, 276 
 
 Weeton v. Woodstock 716, 721 
 
 Weichselbaum v. Curlett 412, 690 
 
 Weigall V. Waters 392, 404, 591, 592 
 
 Weil V. Kahn 133 
 
 Weinsteine v. Harrison 404, 588 
 
 Welch V. Myers 461 
 
 V. Winterburn 146 
 
 Welcome v. Hess 538, 539, 550 
 
 Weld V. Traip 143 
 
 Welden v. Schlosser 563 
 
 Weldon v. Lytle 89, 90 
 
 Weller v. McCormick 600 
 
 Welles V. Castles 394 
 
 Wells V. Cowles 658 
 
 V. De Leyer 346 
 
 V. Mason 321, 349 
 
 V. Porter 413 
 
 V. Sheerer 474a 
 
 Welsh V. Schuyler 440, 442 
 
 Welshbillig v. Dienhart 133 
 
 Welz V. Rhodius 130, 382 
 
 Wentworth v. Portsmouth &c. R. 
 
 50, 640 
 Wenzlick v. McCotten 604 
 
 Wertheimer v. Circuit Judge 
 
 331, 471, 472 
 V. Hosmer 331 
 
 V. Saunders 596, 597 
 
 West V. Blakeway 392 
 
 V. Cartledge 652 
 
 V. Emmons 323 
 
 V. Treude 626 
 
 West Chicago &c. Works v. Sheer 666 
 West Chicago St. R. Co. v. Mor- 
 rison &c. Co. 59, 137 
 West London R. Co. v. London 
 
 &c. R. Co. 9 
 
 West River Bridge Co. v. Dix 708 
 West Shore Mills Co. v. Edwards 
 
 422, 703 
 
 West Side &c. Co. v, Connecticut 
 &c. Ins. Co. 82
 
 Ixxxiv 
 
 TABLE OF CASES. 
 
 IBeferences are 
 
 West Virginia &c. R. Co. v. Mc- 
 
 Intire 411, 455 
 
 Western &c. R. Co. v. Cox 604 
 
 V. Gannon 141, 143, 144 
 
 V. State 412 
 
 Western Bank v. Kyle 495 
 
 Western North Carolina R. v. 
 
 Deal 727 
 Western Transp. Co. v. Lansing 
 
 112, 343 
 
 Westervelt v. Ackley 87 
 
 Westlake v. De Graw 673 
 
 Westmoreland &c. Co. V. De Witt 63 
 
 Weston V. Gravlin 640 
 
 Westropp V. Blligott 631 
 
 Wetherbee v. Ellison 573 
 
 Wetzell V. Richcreek 435 
 
 Whalen v. Leisy &c. Co. 121 
 
 Whaley v. Whaley 13 
 
 Whalin v. White 703 
 
 Wharton v. Anderson 136 
 
 V. Stoutenburgh 138 
 
 Wheat V. Brown 201 
 
 V. Watson 547, 656 
 
 Wheeler v. Baker 136 
 
 V. Bramah 461 
 
 V. Cowan 131, 202, 239 
 
 V. Dascomb 326, 327 
 
 V. Earle 331, 386, 489 
 
 V. Frankenthal 152, 217 
 
 V. Hill 374, 431, 446 
 
 V. Montefiore 15 
 
 V. Walden 540 
 
 V. Wood 254 
 
 Wheeler &c. Mfg. Co. v. Has- 
 
 brouck 726 
 
 Wheelock v. Tuttle 413 
 
 V. Warschauer 706 
 
 Whetstone v. Davis 255 
 
 V. McCartney 447 
 
 Whicher v. Cottrell 258 
 
 Whipley v. Dewey 716 
 
 Whipple V. Earick 695 
 
 V. Shewalter 99, 262 
 
 Whitaker v. Allday 657 
 
 V. Cawthorne 37 
 
 V. Hawley . 676, 678 
 
 Whitbeck v. Cook 354 
 
 V. Skinner 673 
 
 Whitcomb v. Starkey 457 
 
 White V. Albany Ry. 397 
 
 V. Arndt 716 
 
 V. Cannon 91 
 
 V. Foster 38 
 
 V. Gillman 324 
 
 V. Griffing 461 
 
 V. Holland 152 
 
 V. Kane 382, 383, 424 
 
 V. Levy 152 
 
 V. Livingston 31 
 
 V. Maynard 23, 24 
 
 to Sections.l 
 
 
 
 White V. Montgomery 
 
 587, 
 
 616 
 
 V. Naerup 
 
 
 383 
 
 V. Stuart 
 
 
 675 
 
 V. Wagner 
 
 625, 
 
 626 
 
 V. Walker 453, 
 
 662, 
 
 666 
 
 V. Wieland 
 
 
 159 
 
 Whitehead v. Clifford 
 
 
 540 
 
 Whitfield V. Bewit 
 
 
 637 
 
 Whiting V. Edmunds 
 
 
 481 
 
 V. Mass. &c. Ins. Co. 
 
 
 156 
 
 V. Ohlert 
 
 
 152 
 
 Whitlock V. Duffield 
 
 
 343 
 
 Whitmarsh v. Cutting 
 
 
 569 
 
 Whitmore v. Orono Pulp & Pa- 
 per Co. 579, 585 
 Whitney v. Allaire 126 
 V. Cliiford 22 
 v. Olney 107 
 V. Salter 689 
 V. Swett 156, 180, 302 
 Whittaker v. Collins 630 
 Whittemore v. Gibbs 190, 446 
 V. Moore 202 
 Whittle V. Webster 587 
 Whitton V. Smith 541 
 Whitwell V. Harris 380 
 Wickham v. Freeman 627 
 Wickson v. Monarch &c. Mfg Co. 152 
 Wiggin V. Wiggin 702 
 V. Keizer 382 
 Wiggins Ferry Co. v. Ohio &c. 
 
 R. Co. 712 
 
 Wigglesworth v. Dallison 569 
 
 Wilhelm v. Mertz 71 
 
 Wilber v. Follansbee 597 
 
 v. Paine 159, 160 
 
 Wilborn v. Whitfield 691 
 
 Wilbur v. Collin 85 
 
 V. Nichols 428 
 
 Wilcher v. Robertson 2, 3 
 
 Wilcox V. Gate 628 
 
 V. Hines 576 
 
 V. Montour &c. Co. 210, 342 
 
 V. Zane 617, 620 
 
 Wilczinski v. Lick 31 
 
 Wild V. Serpen 688 
 
 Wilde V. Cantillon 203, 228 
 
 V. Fox 160 
 
 Wildy V. Doe 682 
 
 Wiley, Estate of 160, 441 
 
 Wiley V. Christ 541 
 
 . V. Inhabitants &c. 324 
 
 Wilgus V. Lewis 212, 214, 564 
 
 V. Whitehead 132, 136, 310 
 
 Wilkerson v. Farnham 373 
 
 Wilkins v. Pensacola City Co. 695 
 
 Wilkinson v. Clauson 580, 674 
 
 V. Colley 564 
 
 V. Hall 650 
 
 V. Libbey 417 
 
 V. Roves 34
 
 TABLE OF CASES. 
 
 Ixxxv 
 
 [References are to Sections.l 
 
 Wilkinson v. Wilkinson 
 Willard v. Harvey 
 Williams v. Ackerman 
 
 V. Bacon 
 
 V. Bartholomew 
 
 V. Bigelow 
 
 V. Bosanquet 
 
 V. Brummel 
 
 V. Burrell 
 
 V. Canal Co. 
 
 V. Chicago Exhibition Co. 
 
 V. Cleaver 
 
 V. Deriar 
 
 V. Downing 
 
 V. Frybarger 
 
 V. Garrison 
 
 V. Haywood 
 
 V. Hollis 
 
 V. Jones 
 
 V. Kearny Co. 
 
 V. Kent 
 
 V. Kinsman 
 
 V. Lane 
 
 V. Mershon 
 
 V. Robinson 
 
 V. Rogers 
 
 V. Sherman 
 
 V. Vanderbilt 
 
 378, 496, 503, 513, 543 
 
 V. Wait 702 
 
 V. Woodard 116, 442 
 
 Williamson v. Crossett 
 
 V. Jones 
 
 V. Miller 
 
 V. Yingling 
 Willard v. Benton 
 
 V. Earley 
 
 v. Tillman 
 
 V. Warren 
 Willerton v. Shoemaker 
 Willi V. Dryden 
 
 6 
 
 94 
 
 180, 251 
 
 158, 437 
 
 198 
 
 19, 563 
 
 458 
 
 268 
 
 369 
 
 642 
 
 638 
 
 47, 49, 59 
 
 197, 256 
 
 163 
 
 427 
 
 689 
 
 430 
 
 2 
 
 540 
 
 628 
 
 414 
 
 374 
 
 718 
 
 157 
 
 437 
 
 50 
 
 651 
 
 550 
 
 637 
 
 408 
 
 37 
 
 503, 533 
 
 474a, 475 
 
 365, 430, 658 
 
 557 
 
 255 
 
 458, 462 
 
 Willis V. Astor 343 
 
 V. Branch 504 
 
 Willison V. Watkins 
 
 85, 474a, 479, 657, 682, 688, 696 
 Willoughby v. Atkinson &c. Co. 
 
 293, 337 
 
 V. Lawrence 465, 495 
 
 Wills V. Manufacturers' &c. Co. 495 
 
 V. Summers 411, 420, 455 
 
 Willson V. Phillips 326 
 
 V. Treadwell 579 
 
 Willmath v. Pratt 53 
 
 V. Palmer 2 
 
 Wilmer v. Farris 160 
 
 Wilmington &c. Co. v. Allen 486 
 
 Wilmington Water-Power Co. v. 
 
 Evans 37 
 
 Wilson V. Cleaveland 688 
 
 V. Edmonds 404, 637 
 
 V. Finch 577, 578 
 
 Wilson V. Gerhardt 447 
 
 V. Hunter 102 
 
 V. James 687 
 
 V. Lunt 462 
 
 V. Martin 23 
 
 V. Merrill 225 
 
 V. Prescott 293, 555 
 
 V. Roots 69 
 
 V. Scruggs 373 
 
 V. Stewart 56 
 
 V. Taylor 216 
 
 V. Trustees of No. 16 651 
 
 V. Weathersby 682 
 
 V. Wilson 471 
 
 V. Youst 89 
 
 Winch V. Birkenhead &c. R. Co. 9 
 
 Winchester v. Hess 102 
 
 V. Howard 158 
 
 Windon v. Stewart 89, 90, 631 
 
 Wineman v. Hughson 658 
 
 V. Phillips 447, 448 
 
 Winfrey v. Work 428 
 
 Wing v. Gray 573 
 
 Winkler v. Gibson 465 
 
 V. Massengill 562 
 
 Winn v. State 326, 558 
 
 v. Strickland 682, 703, 709 
 
 Winnard v. Robbins 682 
 
 Winship v. Pitts 633, 638 
 
 Winslow V. Merchants' Ins. Co. 710 
 
 Winstell v. Hehl 88 
 
 Winston v. President &c. 659, 682 
 
 Winter v. Stevens 558 
 
 Winterbottom v. Ingham 654 
 
 Winters v. Cherry 242 
 
 Winton v. Cornish 102, 474, 677 
 
 Wirt V. Philips 502 
 
 Wise V. Falkner 658 
 
 V. Ressler 666 
 
 Withers v. Atkinson 62 
 
 V. Larrabee 239, 254, 548 
 
 Withnell v. Petzold 242 
 
 Witthaus v. Starin 83 
 
 Witman v. Reading 74, 83 
 
 V. Watry 549 
 
 Witte V. Quinn 104, 356, 359 
 
 V. Witte 299 
 
 Wittman v. Milwaukee &c. R. Co. 442 
 
 Witty v. Matthews 404, 588, 590 
 
 Wolcott v. Sullivan 409 
 
 Wolf v. Dozer 152 
 
 V. Studebaker 140 
 
 V. Johnson 703 
 
 Wolfe V. Arrott 125, 126, 583 
 
 Wolff V. Schaeffer 127 
 
 Wolffe V. Wolffe 206, 209 
 
 Wollaston v. Hakewill 446 
 
 Womack v. McQuarry 102, 675, 677 
 
 Wood V. Bogle 418 
 
 V. Felton 27, 428 
 
 V. Garrison 291
 
 Ixxxvi 
 
 TABLE OF CASES. 
 
 [References are to Sections.'\ 
 
 "Wood V. Helme 
 V. Hubbell 
 V. Leadbitter 
 V. Manley 
 V. Partridge 
 V. Sharpless 
 V. Turner 
 V. Wilcox 
 
 379 
 
 675 
 
 36, 44 
 
 44 
 
 439, 661, 667 
 
 391 
 
 704 
 
 652, 661 
 
 Woodbridge v. Richardson 390 
 
 Woodbury v. Parshley 45 
 
 V. Woodbury 655 
 
 Woodcock V. Carlson 493, 502, 519 
 
 V. Nuth 543 
 
 Woodhull V. Rosenthal 446, 460 
 
 Woodland Oil Co. v. Crawford 462 
 
 Woodman v. Francis 640 
 
 V. Tufts 604 
 
 Woodrow V. Michael 194, 296 
 
 Woodruff V. Adams 48, 53 
 
 V. Baldwin 462, 463 
 
 Woods V. Naumkeag &c. Co. 619 
 
 Woodstock Iron Co. v. Fullen- 
 
 wider 477 
 
 Woodward v. Brown 476 
 
 V. Conder 49 
 
 V. Cone 513 
 
 V. Gates 626, 636 
 
 V. Payne 374, 377 
 
 V. Seely 37, 45 
 
 Woodworth v. Thompson 590 
 
 Woolley V. Osborne 373 
 
 Woolveridge v. Steward 
 
 449, 451, 463 
 
 Word V. Drouthett 686 
 
 Work V. Brayton 222 
 
 Worrall v. Wilson 539 
 
 Worthington v. Cooke 668 
 
 V. Hewes 450 
 
 V. Lee 437 
 
 V. Warrington 140 
 
 V. Young 373 
 
 Wreford v. Kenrick 365 
 
 Wrese v. Remme 597 
 
 Wright V. Bischer 165 
 
 V. Du Bignon 711 
 
 V. Everett 483 
 
 V. Graves 221, 694 
 
 V. Hardy 494 
 
 V. Lattin 324, 410, 673 
 
 V. Macdonnell 718, 719, 720 
 
 V. Mahoney 561 
 
 Wright V. Roberts 
 
 V. Stavert 
 
 V. Tileston 
 
 V. Weeks 
 Wunder v. McLean 
 Wyckoff v. Gardner 
 Wyman v. Dorr 
 
 V. Farrar 
 
 V. Hook 
 
 V. Sperbeck 
 Wynn v. Garland 
 
 670 
 
 23, 24 
 
 628, 630 
 
 100 
 
 605 
 
 88 
 
 10 
 
 67 
 
 3, 655 
 
 70 
 
 36,37 
 
 Yale V. Seely 38, 558 
 
 Yarbrough v. Monday 320 
 
 Yates V. Backley 375 
 
 v. Kinney 202 
 
 Yeakle v. Jacob 38 
 
 Yeazel v. White 572 
 
 Yellow Jack & Co. v. Stevenson 181 
 
 Yetter v. King &c, Co. 201 
 
 York v. Jones 422 
 
 V. Steward 575, 576 
 
 Youell V. Kridler 553 
 
 Youmans v. Caldwell 568 
 
 Young V. Burhans 355, 410, 673 
 
 V. Collett 353, 355 
 
 V. Consolidated Imp. Co. 
 
 718, 719, 720 
 
 V. Dake 152 
 
 V. Downey 651 
 
 V. Hargrave 349 
 
 V. Heffernan 702 
 
 V. Paul 87 
 
 V. Smith 255 
 
 V. Young 293, 488 
 
 Young Trust Co. v. Wagener 497 
 
 Youngblood v. Eubank 716, 721 
 
 Younggreen v. Shelton 645 
 
 Zeller v. Eckert 474a 
 
 Zeysing v. Welbourn 428 
 
 Zillig, Matter of 154 
 
 Zimmerman v. Marchland 688 
 
 Zippar V. Reppy 213 
 
 Zorkowski v. Astor 375 
 
 Zouch V. Parsons 95 
 
 Zule V. Zule 10, 667
 
 THE LAW OF LANDLORD 
 AND TENANT. 
 
 CHAPTER I. 
 
 CREATION OF THE RELATION. 
 
 1. Essentials of a Tenancy, §§ 1-8. 
 
 2. Subject-Matter, §§ 9-10. 
 
 3. Proof of Tenancy, §§ 11-14. 
 
 4. Interesse Termini, §§ 15-17. 
 
 5. Similar Contractual Relations, 
 
 §§ 18-28. 
 
 6. Purchaser in Possession, §§ 29-36. 
 
 7. Lease or License, §§ 37-45. 
 
 8. Cropping Contracts, §§ 46-56. 
 
 I. Essentials of a Tenancy. 
 
 § 1. A tenancy is created by contract express or implied whereby 
 one person permits another to occupy lands actually or constructively. 
 
 Without such a contract there can be no relation of landlord and 
 tenant.^ "In a popular sense a tenant is one who has the temporary 
 use and occupation of lands and tenements which belong to another, 
 the duration and other terms of whose occupation are usually defined 
 by an agreement called a lease, while the parties thereto are placed in 
 the relation of landlord and tenant."^ Eeduced to its simplest terms, 
 the rule has sometimes been stated to be that any permissive occupa- 
 tion of land in subordination of another's title which amounts to an 
 exclusive possession, creates the relation of landlord and tenant be- 
 tween the occupant and the landowner. ^ But not only must a person 
 
 1 Rogers v. Coy, 164 Mass. 391, 41 
 N. E. 652; Central Mills v. Hart, 
 124 Mass. 123; Merrill v. Bullock, 
 105 Mass. 486, 490; Kirchgassner v. 
 Rodick, 170 Mass. 543, 49 N. E. 
 1015; Cobb v. Arnold, 8 Met. 
 (Mass.) 398. 
 
 = Bouvier's Law Diet., Rawle's Re- 
 vision. 
 
 ^ Central Mills v. Hart, 124 Mass. 
 123; Baley v. Deakins, 5 B. Mon. 
 (Ky.) 159; Skinner v. Skinner, 38 
 Neb. 756, 57 N. W. 534; Hanks v. 
 Price, 32 Gratt. (Va.) 107; McLen-
 
 2] 
 
 CREATIOX OF THE EELATIOX. 
 
 residing or working on the premises have the legal possession of them 
 to constitute him a tenant, but there must be no other agreement or 
 contract under which such possession can be explained. Some agree- 
 ment between the parties for a tenancy, whether it be made ex- 
 pressly in words, or arises from their acts and conduct in relation to 
 the land and the absence of express agreement, is essential.* 
 
 § 2. Occupation must not be adverse. — One of the first require- 
 ments in inferring an agreement for a tenancy is consent on the part 
 of the landowner to the occupation of the premises in regard to which 
 the alleged tenancy is claimed to exist. Consent to occupation of 
 premises does not necessarily imply a contract of tenancy, but the 
 absence of consent does absolutely preclude any inference of such 
 an agreement. The relation of landlord and tenant does not arise 
 where the occupant of land holds adversely to the owner, and the 
 occupant in such a case is not liable for rent.^ An entry on lands of 
 another without right and not in subordination to the title of the 
 owner is a mere trespass, and no tenancy is created thereby. Neither 
 the occupant nor the owner is entitled to claim the benefits of a 
 tenancy, and neither can be held liable for its obligations.® The 
 
 nan v. Grant, 8 Wash. 603, 36 Pac. 
 682. 
 
 * Alabama: Tucker v. Adams, 52 
 Ala. 254. California: Emerson v. 
 Weeks, 58 Cal. 439; Paige v. Akins, 
 112 Cal. 401, 406, 44 Pac. 666. Geor- 
 gia: Littleton v. Wynn, 31 Ga. 583. 
 Kentucky: Moore v. Calvert, 6 
 Bush (Ky.) 356. Illinois: Hill v. 
 Coal Valley Min. Co., 103 111. App. 
 41. Massachusetts: Rogers v. Coy, 
 164 Mass. 391, 41 N. E. 652; Cen- 
 tral Mills V. Hart, 124 Mass. 123; 
 Knowles v. Hull, 99 Mass. 562; Em- 
 mons V. Scudder, 115 Mass. 367; 
 Edwards v. Hale, 9 Allen (Mass.) 
 462. New Hampshire: Swift v. New 
 Durham Lumber Co., 64 N. H. 53. 
 Oregon: Twiss v. Boehmer, 39 Ore. 
 359, 65 Pac. 18. Vermont: Moore v. 
 Harvey, 50 Vt. 297. Wisconsin: J. 
 B. Alfree Mfg. Co. v. Henry. 96 Wis. 
 327, 71 N. W. 370. 
 
 = California: Pico v. Phelan, 77 
 Cal. 86, 19 Pac. 186. Georgia: 
 
 Williams v. Hollis, 19 Ga. 313; 
 Jackson v. Mowry, 30 Ga. 143; 
 Littleton v. Wynn, 31 Ga. 583; Mc- 
 Lendon v. West Point &c. R. Co., 54 
 Ga. 293; Lathrop v. Standard Oil 
 Co., 83 Ga. 307, 9 S. E. 1041. Iowa: 
 Martin v. Knapp, 57 Iowa 336, 10 
 N. W. 721. Maine: Little v. Libby, 
 2 Me. 242, 248; Goddard v. Hall, 55 
 Me. 579. Massachusetts: Leonard v. 
 Kingman, 136 Mass. 123; Boston v. 
 Binney, 11 Pick. (Mass.) 1; Central 
 Mills V. Hart, 124 Mass. 123. Michi- 
 gan: Ward V. Warner, 8 Mich. 508; 
 Hogsett V. Ellis, 17 Mich. 351; Wil- 
 marth v. Palmer, 34 Mich. 347. 
 Mississippi: Scales v. Anderson, 4 
 Cushm. 94. Nevada: Alexander v. 
 Archer, 21 Nev. 22, 24 Pac. 373; 
 "Krug V. Davis, 101 Ind. 75; Petty 
 V. Mailer, 15 B. Mon. (Ky.) 591, 
 606; Douglass v. Geiler, 32 Kan. 
 499. 4 Pac. 1039; Lakin v. Roberts, 
 54 Fed. 461; Dalton v. Laudahn, 30 
 Mich. 349.
 
 3 ESSENTIALS OF A TEXANCY, [§ 2 
 
 nature of such an occupation might be changed to a tenancy where the 
 owner consents to the occupation and the occupant does some act in 
 plain recognition of the owner's title.'^ Where a judgment of eviction 
 was obtained against a tort-feasor who then accepted a lease, he was 
 held to become a tenant by such transaction.^ After an occupant has 
 acknowledged the title of the owner and still continues to occupy the 
 land by his leave and license, he ceases to be a mere trespasser, and 
 his possession becomes the possession of him whose title he has ac- 
 knowledged.^ However, the assent to the holding of the premises 
 must be mutual, and the consent of the occupant to become a tenant 
 is ineffectual to constitute a tenancy when the landowner is ignorant 
 of the occupation.^" The converse is true that an owner of land can- 
 not make a trespasser thereon his tenant merely by consenting to his 
 continued occupation of the premises.^ ^ Yet it has been held that one 
 may be the tenant of an unknown landlord by means of an agent 
 with an undisclosed principal.^- 
 
 After the death of a tenant his sons entered into possession and used 
 the premises, and the owner attempted to charge them with rent as 
 tenants. On the authority of two English cases^^ it was held that the 
 defendants being in possession, the law would refer that possession 
 to a rightful rather than to a wrongful title, and there was a course 
 through which that title might be fully derived, viz. : by supposing 
 the defendants to be privy to the term granted to their father. If 
 their possession was referable to some other title it was for them 
 to show it, for this was a matter lying within their own knowledge.^* 
 
 In one case a kind of tenancy was created by operation of law 
 where an action was brought upon an injunction bond to stay the ex- 
 ecution of a writ of restitution for the possession of land. The in- 
 junction gave the protection of the law to the occupant during its 
 pendency, while the bond secured the other party in the rent during 
 such occupancy. So an occupant whose original entry is lawful, and 
 under a lease or permission of uncertain duration, may be regarded 
 in effect as tenant or quasi tenant under rent, during the pendency 
 of the injunction. Although the defendant in the injunction may 
 
 'Lockwood V. Thunder Bay &c. 10 N. W. 721; Ackerman v. Lyman, 
 
 Co., 42 Mich. 536, 4 N. W. 292. 20 Wis. 454. 
 
 »Ball v. Lively, 1 Dana (Ky.) 60, '= Charter Oak L. Ins. Co. v. Cum- 
 
 65. mings, 13 Mo. App. 76. 
 , »Wilcher v. Robertson, 78 Va. "Doe v. Murless, 6 M. & S. 110; 
 
 602, 619. Doe v. Williams, 6 B. & C. 41, 13 
 
 "> Curtis v. Treat, 21 Me. 525. E. C. L. 31. 
 
 "Martin v. Knapp, 57 Iowa 336, "Page v. McGlinch, 63 Me. 472.
 
 § 3] CREATION OF THE RELATION. 4 
 
 rightfully take the possession on the dissolution of the injunction, it 
 does nwt follow that he is absolutely entitled to the crop then grow- 
 ing on the land. Since the duration of the occupancy, as dependent 
 on the injunction, is uncertain, it would seem to be just and reason- 
 able that, although by improvidence or inadvertence, the decree 
 directs immediate restitution and the possession of the land may be 
 rightfully taken, the party turned out, before the crop is gathered, 
 has the right to the emblements. ^^ 
 
 § 3. The relation of landlord and tenant cannot be inferred as a 
 matter of law from the mere fact of lawful occupancy." Occupation 
 alone will raise this relation by implication only when the occupancy 
 of the premises has been with the assent of the owner, and without 
 any act or claim, on the part of the occupant, inconsistent with an 
 acknowledgment by the occupant of the owner as his rightful landlord. 
 Moreover, this implication may be rebutted by proof of a contract, or 
 any other fact inconsistent with the existence of such relation." Thus, 
 a contract to purchase and occupation under it, was held sufficient to 
 rebut the implication of the existence of this relation arising from 
 the occupancy.^* A suit and judgment in ejectment has been held to 
 be conclusive evidence that this relation did not exist during the 
 time mesne profits could be recovered in the ejectment suit.^^ An 
 ejectment suit which fails through want of notice does not work an 
 estoppel, but it has a tendency to show that the plaintiff did not re- 
 gard or treat the defendant as his tenant, and, therefore, to rebut any 
 implied contract of tenancy between the plaintiff and defendant.^'* 
 
 Where the use and occupation of real estate is under such circum- 
 stances as to show that there was no expectation of rent by either 
 party, a contract to pay rent will not be implied.^^ In order to main- 
 tain assumpsit for the use and occupation of land something in the 
 nature of a demise must be shown, or some evidence given to establish 
 the relation of landlord and tenant. That relation can only grow out 
 
 "Tinsley v. Tinsley, 15 B. Mon. 350, 19 Atl. 387; Collyer v. Collyer, 
 
 (Ky.) 454. 113 N. Y. 442, 21 N. E. 114. 
 
 " Bailey v. Campbell, 82 Ala. 342, " Stacy v. Vermont Central R. 
 
 2 So. 646; Wilcher v. Robertson, 78 Co., 32 Vt. 551. 
 
 Va. 602, 619; Central Mills v. Hart, ^^ Hough v. Birge, 11 Vt. 190. 
 
 124 Mass. 123; Porter v. Hubbard, "Strong v. Garfield, 10 Vt. 502; 
 
 134 Mass. 233; Emerson v. Weeks, Birch v. Wright, 1 Term. R. 378. 
 
 58 Cal. 439; Hardin v. Pulley, 79 ==» Chamberlin v. Donahue, 44 Vt. 
 
 Ala. 381; Swift v. New Durham 57. 
 
 Lumber Co., 64 N. H. 53, 5 Atl. 903; ^ Collyer v. Collyer, 113 N. Y. 442, 
 
 Tompkins v. Staiger, 52 N. J. L. 21 N. E. 114.
 
 5 ESSENTIALS OF A TENANCY. [§ 3 
 
 of a contract, and it has accordingly been held that a contract, express 
 or implied is necessary in order to sustain assumpsit for use and oc- 
 cupation.-- 
 
 Although one person is in occupation of land legal title to which is 
 acknowledged to be in another, such occupation may be explained by 
 showing relations existing between the parties other than that of land- 
 lord and tenant.-^ By the terms of a will a father held lands in trust 
 for his minor children. The relation of landlord and tenant between 
 the father thus holding land and his minor children was not inferred. 
 "The relative positions of the parties may be referred to the will. In 
 such case the relation of executor and devisees or of trustee and cestui 
 que trust, subsists."^* Where there is an absence of any intention to 
 enter into the relation of landlord and tenant, mere occupation by one 
 other than the owner does not create a tenancy. Thus, no tenancy 
 exists between the owner of the fee and a sub-lessee who occupies his 
 premises;-^ nor is a husband the tenant of his wife by reason of his 
 cultivating a farm which was her separate property, in case there 
 is no agreement between the husband and wife, and such an agreement 
 cannot be inferred.^° A similar situation arises when land is sold on 
 execution and the execution debtor has continued in possession after 
 title has been transferred to the purchaser ; the parties do not become 
 landlord and tenant. There is no implied promise on the part of a 
 judgment debtor, whose land has been sold under execution, to hold 
 as tenant of the purchaser. Assumpsit will not lie against a judg- 
 ment debtor for the use and occupation of land set off on execution 
 against him, where he contests the regularity of the proceedings, un- 
 less an express contract be proved. No express contract of tenancy is 
 pretended, and no fact appears from which such tenancy may be im- 
 plied." It is necessary to prove a direct contract in order to constitute 
 the relation of landlord and tenant and for an execution defendant 
 to remain in occupation after a sale of the land is no proof whatever, 
 
 -- Central Mills v. Hart, 124 Mass. citing Russell v. Erwin, 38 Ala. 44, 
 
 123, per Ames, J., citing Merrill v. where a mother held land for her 
 
 Bullock, 105 Mass. 486, 490; Ban- child and the technical relation of 
 
 croft V. Wardwell, 13 Johns. (N. Y.) landlord and tenant was held not 
 
 489; Smith v. Stewart, 6 Johns. (N. to be created between the infant 
 
 Y.) 46; Stacy v. Vermont Central and his mother. 
 
 R. Co., 32 Vt. 551; Watson v. Brain- =^ Crosby v. Home & Danz Co., 45 
 
 ard, 33 Vt. 88; Chamberlin v. Dona- Minn. 249, 47 N. W. 717. 
 
 hue, 44 Vt. 57. =" Davis v. Watts, 90 Ind. 372. 
 
 ==* Bailey v. Campbell, 82 Ala. 342, =^ Tucker v. Byers, 57 Ark. 215, 21 
 
 2 So. 646. S. W. 227; Wyman v. Hook, 2 Me. 
 
 =* Hardin v. Pulley, 79 Ala. 381, 337.
 
 § 4] CREATION OF THE RELATION, G 
 
 cither positive or circumstantial, to establish such a contract. So it 
 is error to instruct a jury that they may infer an actual agreement for 
 a tenancy from such facts^ as there is no proof whatever of the exist- 
 ence of such a contract.-^ However, in regard to the question of adverse 
 holding, a judgment debtor, remaining in possession after a sale, is 
 regarded, in the absence of all evidence to the contrary, as occupy- 
 ing the relation of quasi tenant at will to the purchaser. But this is a 
 mere presumption of fact, which may be rebutted by showing that, in 
 fact, he was holding adversely to the right of the purchaser. He is 
 under none of the positive obligations growing out of the relation of 
 tenant by actual contract.^^ He does not occupy the attitude of a ten- 
 ant, yet the law will not, from the mere fact that he remained in 
 possession, presume that his possession is adverse. The execution de- 
 fendant, when sued, must show it to have been so,^** 
 
 § 4. An award of arbitrators cannot create the relation of land- 
 lord and tenant between two persons who have not assented to such a 
 relationship. This was decided in a case where one person bound him- 
 self under a penalty to convey lands at such sum as arbitrators should 
 award, and deposited a deed with the arbitrators to be delivered on the 
 publishing of the award, and agreed in the meantime to become ten- 
 ant at such rent as the arbitrators should award. This party refused 
 to abide by the bond. Sufficient notice of this was given to the other 
 party. The court were of opinion that the plaintiff might have a good 
 cause of action for the defendant's not performing the award, but 
 found it difficult to see how his utter denial of the plaintiffs' right 
 to become his landlord should operate as an acknowledgment of his 
 being in fact their tenant, or how his refusal should be construed into 
 an acquiescence. "The most that can be made of it is that the defend- 
 ant entered into a contract to become tenant to the plaintiffs at a 
 future day, for a limited time, and that he would not become tenant 
 as he had agreed to do. Under those circumstances it might be said 
 that he had broken his agreement but not that he had become a ten- 
 ant under it. The contract was executory but never executed. The 
 relation of landlord and tenant, therefore, was not created in fact."^^ 
 In another case a tenant entered into a written agreement under seal 
 with the wife of his landlord, whereby they submitted certain matters, 
 growing out of the rent of the premises, to arbitration. The award 
 
 ^O'Donnell v. McMurdie, 6 ^» Chalfin v. Malone, 9 B. Mon. 
 
 Humph. (Tenn.) 134. (Ky.) 496. 
 
 ^ Keaton v. Thomasson, 2 Swan '' Boston v. Binney, 11 Pick. 
 
 (Tenn.) 138. (Mass.) 1, 7, per Putnam, J.
 
 7 ESSENTIALS OF A TENANCY. [§' 5 
 
 was made and accepted by both parties. The theory was then ad- 
 vanced that by the submission to arbitration of the matters in differ- 
 ence, by the award and acceptance and performance thereof the re- 
 lation of landlord and tenant was established between the parties. 
 But the court held that the award and acceptance thereof did not 
 amount to an acknowledgment of the wife as landlord, and if they 
 did the tenant had the right to resume his tenancy to the husband, 
 who was the real owner and entitled to the possession and under 
 whom the tenant had received possession in the first instance.^- 
 
 § 5. It is not necessary to the creation of a tenancy that there 
 should be a formal hiring, letting or leasing f^ but the agreement may 
 be implied in fact from the conduct of the parties and the attendant 
 circumstances, and if so implied, is as effectual as if made in words, 
 though there may have been no actual lease, written or verbal, and no 
 formal agreement.^* The relation of landlord and tenant may and very 
 often does arise by implication from occupation of premises in sub- 
 ordination of another's title under circumstances indicating an in- 
 tention to enter into the relation.^^ Where one contemplates entering 
 into possession of the lands of another to occupy for use, and is in- 
 formed that he can do so on terms stated or for a reasonable com- 
 pensation, entry and occupation form a good acceptance of the terms 
 proposed and the tenant becomes bound to pay the sum named or such 
 price as the use is reasonably worth. ^® 
 
 The same principle applies when there is actual possession and oc- 
 cupation under a lease which is invalid for want of proper acknowl- 
 edgment or for failure to comply with the statute of frauds and the 
 relation of landlord and tenant arises in spite of the defects in the 
 lease.^^ 
 
 =' Luttrell V. Caruthers, 5 111. App. '" Dickson v. Moffat, 5 Colo. 114. 
 
 544. The relation of landlord and ten- 
 
 =' Insurance Co. of Penn. v. O'Con- ant arises where one by consent of 
 
 nell, 34 111. App. 357; Eastman v. the landlord goes into possession 
 
 Perkins, 111 Mass. 30. of leased land as the successor in 
 
 =*Rainey v. Capps, 22 Ala. 288; interest of the tenant, and after 
 
 Baley v. Deakins, 5 B. Mon. (Ky.) thus occupying the land at the stip- 
 
 159. ulated rent in the lease continues 
 
 ='^ Candler v. Mitchell, 119 Mich, to occupy after the expiration of 
 
 464, 78 N. W. 551; Conwell v. Mann, the lease. Weaver v. Southern Ore- 
 
 100 N. Car. 234, 6 S. E. 782; Cham- gon Co., 31 Ore. 14, 48 Pac. 167. 
 
 terlin v. Donahue, 44 Vt. 57; Bacon "Alabama: Hays v. Goree, 4 Stew, 
 
 v. Bowdoin, 22 Pick. (Mass.) 401; & P. (Ala.) 170; Nelson v. Webb, 54 
 
 Kabley v. Worcester Gas Light Co., Ala. 436; Crawford v. Jones, 54 Ala. 
 
 102 Mass. 392. 459; Martin v. Blanchett, 77 Ala.
 
 § G] CREATIOX OF THE RELATION. S 
 
 A short memorandum added to a receipt has been held to be a com- 
 plete lease, though entirely informal in wording. It expressed the con- 
 sent of the owner that the other party should have immediate posses- 
 sion of the premises and should continue to occupy them, at a speci- 
 fied rent and for a definite term of time. Although brief and informal 
 it had the essential elements of a present demise.^ ^ 
 
 WTiere A. puts B. in possession of land, saying at the time, "This 
 is a home for you. Go and live in it," and B. enters under such au- 
 thority, B. becomes the tenant of A. and is estopped even after thirty 
 years' possession, to deny the title of A. or his assigns.^'' 
 
 An instrument whereby one lets to another certain real property 
 for a specified rent, to commence at a future day, is a lease rather than 
 an agreement for a lease, although the words are "agree to let." If 
 there is a present demise for a term to commence in future the instru- 
 ment is a lease and not an agreement for a lease.**' 'WTietheT an instru- 
 ment is to be construed as a present demise or an executory contract 
 for a lease to be given hereafter depends upon the intention of the 
 parties as gathered from the whole instrument. Where the owner 
 agrees in writing to let certain land to another at a stipulated rent 
 and in conclusion says he will make a lease of the premises for three, 
 with a privilege of five years from date, the writing is not a present 
 lease, but an agreement for a lease to be thereafter given.*^ 
 
 § 6. Reservation of rent by the landlord is not essential to the 
 creation of a tenancy ;*2 the demise may be gratuitous or for a lump 
 
 288. Connecticut: Allen v. Holkins, worth, 108 Mass. 357; Dix v. Atkins, 
 
 1 Day 17. Kentucky: Drubaker v. 130 Mass. 171; Kimball v. Cross, 136 
 
 Poage, 1 T. B. Mon. 123, 126. Mass. 300; Duncklee v. Webber, 151 
 
 Tennessee: Duke v. Harper, 6 Yerg. Mass. 408, 24 N. E. 1082. 
 
 279, 284; Shepherd v. Cummings, 1 *^ McGrath v. Boston, 103 Mass. 
 
 Cold. 354; Noel v. McCrory, 7 Cold. 369; Hinckley v. Guyon, 172 Mass. 
 
 623, 627; Hammond v. Dean, 8 Baxt. 412, 52 N. E. 523. 
 
 193. ^=Amter v. Conlon, 22 Colo. 150, 
 
 ^Eastman v. Perkins, 111 Mass. 43 Pac. 1002; Osborne v. Humph- 
 
 30; Weed v. Crocker, 13 Gray rey, 7 Conn. 335, 340; Hooton v. 
 
 (Mass.) 219. Holt, 139 Mass. 54, 29 N. E. 221; 
 
 ^^ Conwell V. Mann, 100 N. Car. Cheever v. Pearson, 16 Pick. 
 
 234, 6 S. E. 782. (Mass.) 266, 271; McKissack v. Bul- 
 
 ^Weed V. Crocker, 13 Gray lington, 37 Miss. 535; Hunt v. Com- 
 
 (Mass.) 219; Bacon v. Bowdoin, 22 stock, 15 Wend. (N. Y.) 665, 667; 
 
 Pick. (Mass.) 401; Fiske v. Fram- Failing v. Schenck, 3 Hill (N. Y.) 
 
 ingham Mfg. Co., 14 Pick. (Mass.) 344; Mahoney v. Farley, 17 Wkly. 
 
 491; Kabley v. Worcester Gas Light Dig. (N. Y.) 277; Foster v. Penry, 
 
 Co., 102 Mass. 392; Shaw v. Farns- 76 N. Car. 131; Mitchell v. Common-
 
 9 ESSENTIALS OF A TEXAXCT. [§ 6 
 
 siim/^ or the obligation to pa}- rent may be implied from the circum- 
 stances.** A verbal agreement under which the lessee was to have a 
 right to remain in possession of the premises during life, without 
 charge, would, if proved, at least show that he was a tenant at will 
 up to the time when such holding was terminated in some manner.*^ 
 A written acknowledgment of a person who is in the occupation of 
 land, that he holds it as tenant of another, does not raise a presump- 
 tion of law that he promises to j)ay rent, nor transfer the burden of 
 proof on the question of fact whether they understand rent is to be 
 paid. A promise to pay rent in such a case, implied from occupation 
 and -tenancy, is an inference of fact. In one case the evidence showed 
 that the acknowledgment of tenancy was made to enable the plaintiff 
 to complete the foreclosure of a mortgage and left it doubtful, at least, 
 whether there was an understanding that rent was to be paid. From 
 the defendant's occupation and acknowledged tenancy the law does 
 not imply a promise to pay rent. The question whether there was 
 such a promise, is a question of fact. Unless the question be raised 
 that the verdict is against the evidence, the decision of this question 
 is for the jury.**' A definite agreement to pay rent is not essential to 
 create the relation of landlord and tenant ; and an action for use and 
 occupation will lie where defendant with plaintiff's consent has en- 
 tered upon land and uses it for his own profit.*' Where a demise for 
 life was on the condition that the occupant should pay interest on a 
 mortgage and on purchase money, it was held the parties became land- 
 lord and tenant and the interest could be collected by distress.**^ 
 
 Eent may be reserved in services as well as in money, as where a 
 tenant at will agreed to keep off trespassers in return for the use of 
 the land. A valid tenancy at will was created by such arrangement.*^ 
 
 wealth, 37 Pa. St. 187; Floyd v. tion as a mere permission to enter 
 
 Floyd, 4 Rich. L. (S. C.) 23; State upon and occupy the land." 
 
 v. Page, 1 Speer (S. C.) 408. Com- « Osborne v. Humphrey, 7 Conn. 
 
 pare a remark by Champlin, J., in 335, 340. 
 
 Shaw V.Hill, 79 Mich. 86: "In a ten- ** Wilkinson v. Wilkinson, 62 Mo. 
 
 ancy at will, rent in some manner App. 249. 
 
 must be reserved, and must be such " Hooton v. Holt, 139 Mass. 54, 29 
 
 as accrues from day to day." And N. E. 221. 
 
 in Simpkins v. Rogers, 15 111. 397, '' Bank v. Getchell, 59 N. H. 281. 
 
 the court say: "We are, however, not "Wilkinson v. Wilkinson, 62 Mo. 
 
 inclined to hold that there was any App. 249. 
 
 tenancy in the case. One of the es- ■''Reed v. Kitchen, 1 Am. L. Reg. 
 
 sential qualities of a lease was (Pa.) 635. 
 
 wanting, the reservation of rent to *^ Shaw v. Hill, 79 Mich. 86, 44 N. 
 
 the owner. We regard the transac- W. 422.
 
 § 7] CKEATIOX OF THE RELATION. 10 
 
 § 7. The validity of a landlord's title is not material in deter- 
 mining whether one occupying his premises stands in the relation of 
 tenant to him. The relation of landlord and tenant does not rest 
 upon the landlord's title but upon the agreement between the parties 
 followed by the possession of the premises by the tenant under such 
 agreement."" Wliere the grantor in a trust deed joins with the cred- 
 itors secured in a request to the trustee to permit a certain person to 
 occupy the premises, he thereby places the trustee in possession, and 
 the trustee becomes the landlord of such person. It is competent for 
 a mortgagor to place the mortgagee in possession, or assent to his pos- 
 session which the mortgagee may defend or assert.^^ The relation of 
 landlord and tenant may exist between two parties, although the land- 
 lord is not himself the owner of the premises but is a renter from 
 the owner.^^ When a lessee sub-lets, he becomes lessor to his sub-lessee 
 and is entitled to the same lien on his crop which the statute gives to 
 the lessor. The lessee, for advances made to his tenant, would occupy 
 toward him the relation of lessor with the rights incident to that rela- 
 tion. ^^ 
 
 But upon no principle of reason or law can the absolute owner of 
 lands, in possession, be made chargeable with rent. Pending the pro- 
 ceedings to condemn land by eminent domain, the relation of land- 
 lord and tenant does not exist between the parties to the proceeding. 
 The commissioners making the condemnation did not have the legal 
 title and a tenancy will not be implied under one who has not the legal 
 estate. The landowner did not enter in subordination to the title of 
 any other person and never acknowledged any obligation to another. 
 He was in possession as owner of the fee, and claiming adversely to 
 all the world, and the proceedings for condenmation were an acknowl- 
 edgment of his title.^* 
 
 °° Cherokee Strip &c. Ass'n v. the Cherokee Nation was void be- 
 
 Cass &c. Co., 138 Mo. 394, 40 S. W. cause not executed in compliance 
 
 107. In this case the original lease with the United States statute, 
 
 was forbidden by statute and void, while no such objection exists as 
 
 This was held not to affect the va- to the contract between plaintiff 
 
 lidity of the sub-lease. The court and defendant." 
 
 said: "The contract between plain- "Candler v. Mitchell, 119 Mich, 
 
 tiff and defendant is a contract to 464, 78 N. W. 551. 
 
 which the Cherokee Nation is not " Strickland v. Stiles, 107 Ga. 308, 
 
 a party and must be governed both 33 S. E. 85; Morgan v. Morgan, 65 
 
 as to the manner of its execution Ga. 493. 
 
 and its construction, by the law " Moore v. Faison, 97 N. Car. 322, 
 
 applicable to contracts entered into 2 S. E. 169. 
 
 by persons competent to contract. ^ Cook v. South Park Com'rs, 61 
 
 The contract between plaintiff and 111. 115.
 
 11 SUBJECT ]\IATTER. [§§ 8, 9 
 
 § 8. The fiduciary relation of a lessee to one who is entitled to the 
 beneficial enjoyment under the lease does not prevent the creation of 
 a tenancy. So when a lease runs in the name of a trustee, the relation 
 between the landlord and the nominal lessee is strictly a legal rela- 
 tion and does not come within the scope of equity jurisdiction.^^ 
 
 II. Subject Matter. 
 
 § 9. The general rule is that any kind of property, corporeal or 
 incorporeal, which may be transferred by livery or by grant, may be 
 the subject of a demise. ^^ Thus the right to fish in certain waters may 
 be transferred for a term of years and the estoppel against denying 
 the landlord's title, which accompanies an ordinary lease of land, 
 operates against the lessee." A riparian owner along a navigable 
 stream who owns the fee of the bed thereof to the center line may 
 lease the right to cut ice forming on his portion of the stream.^^ Such 
 a lease gives the lessee a right to maintain an action against one who 
 has wrongfully interfered with his right to gather the ice.^*^ A grant 
 of the privilege to draw the sap from turpentine trees is a suitable 
 interest to be transferred by demise and when completed takes effect 
 as a lease of real estate.*'*' So a grant of all timber, grass and berries 
 that may be grown on certain land for a term of years is a valid lease.*'^ 
 Franchises and public rights can be transferred by lease provided 
 such a transfer does not interfere with the performance of a duty the 
 owner owes to the public. Thus a railway corporation cannot lease its 
 lines and the right to operate them without authority from the legis- 
 lature.*'^ But with such consent there is no objection to such a lease 
 as there are no difficulties on account of the nature of the interest.*'^ 
 
 "''January v. Stephenson, 2 Mo. •"Rooks v. Moore, Busb. L. (N. 
 
 App. 266. Car.) 1; Denton v. Strickland, 3 
 
 '"Bacon's Abr, Leases (A); Shep. Jones L. (N. Car.) 61. 
 
 Touch. 268. "Freeman v. Underwood, 66 Me. 
 
 "Watertown v. White, 13 Mass. 229. 
 
 477; Eastham v. Anderson, 119 «= Beman v. Rufford, 1 Sim. (U. 
 
 Mass. 526; Commonwealth v. S.) 550, 6 Eng. L. & Eq. 106; Great 
 
 Weatherhead, 110 Mass. 175. Northern R. Co. v. Eastern &c. R. 
 
 =' Oliver v. Olmstead, 112 Mich. Co., 9 Hare 306; Winch v. Birken- 
 
 483, 70 N. W. 1036. head &c. R. Co., 13 Eng. L. & Eq. 
 
 °°Lorman v. Benson, 8 Mich. 18, 506; Commonwealth v. Smith. 10 
 
 77 Am. Dec. 435; People's Ice Co. Allen (Mass.) 448. 
 
 V. Steamer Excelsior, 44 Mich. 229, •" Black v. Delaware &c. Canal 
 
 38 Am. R. 246; Grand Rapids &c. Co., 22 N. J. Eq. 130; United States 
 
 Co. v. South Grand Rapids &c. Co., Trust Co. v. Wabash &c. R. Co., 150 
 
 102 Mich. 227, 47 Am. St. 516. U. S. 287, 14 Sup. Ct. 86; Troy &c.
 
 10] 
 
 CREATIOX OF THE RELATIOX. 
 
 
 The right to do certain acts on hind of another, as to flow it with 
 water, may take effect as an easement. Yet it has been held that a 
 properly executed agreement, giving the owner of a mill-site the 
 right, for a stipulated annual compensation, to flow the adjoining 
 lands of another for an indefinite period, by the erection of a dam 
 upon his own premises, creates a tenancy in such lands.®* An agree- 
 ment which gives an exclusive right to mine coal, to use five acres of 
 surface land for buildings, to build railroads upon and flow water 
 upon land, and provides for a royalty for coal mined payable as rent 
 not to fall below a fixed amount each year, is a lease and creates the 
 relation of landlord and tenant. It is none the less a lease because a 
 part of the land is to be removed; it is not a sale of the coal, but a 
 lease of the land.*'^ 
 
 However, an agreement to furnish steam power by the year or 
 month has been held not to constitute a tenancy entitling the party 
 furnishing it to a notice to quit.*'" 
 
 § 10. Where chattels are let for a term, so long as the term con- 
 tinues the lessor or bailor can only bring an action on the case for an 
 injury to them, but where the term is ended by a wrongful sale, the 
 lessor can bring detinue or trover.®'^ So if machinery be leased and 
 the lessee severs it from the freehold, it revests instanter in the lessor, 
 who may maintain trover even during the continuance of the term. 
 By the lease or agreement the tenant has the use, not the dominion, 
 of the property demised, and, therefore, when he separated any part 
 of it, his right of using it was at an end for any legal purpose, that 
 right being only to use it in the state it was before.®^ Lord Bacon 
 says that "if one lease for years a stock of live cattle, such lease is 
 good, and the lessee hath only the use and profits of them during the 
 term; but yet,'' adds the learned author, "the lessor hath not any re- 
 version in them to grant over to another.""'^ It seems that the lessor 
 has only a possibility of property in case they outlive the term. An 
 
 R. Co. V. Kerr, 17 Barb. (N. Y.) 
 581, 601; West London R. Co. v. 
 London &c. R. Co., 11 C. B. 254; 
 London &c. R. Co. v. South East- 
 ern R. Co., 8 Exch. 584; Ware v. 
 Grand Junction &c. Co., 2 R. & 
 Myl. 470. 
 
 "Morrill v. Mackman, 24 Mich. 
 279. 
 
 °=Lacey v. Newcomb, 95 Iowa 
 287, 63 N. W. 704. 
 
 °* Dwj'er V. Newmann, 2 N. J. L. J. 
 315. 
 
 ^" Swift V. Moseley, 10 Vt. 208; 
 Sanborn v. Colman, 6 N. H. 14; 
 Billings V. Tucker, 6 Gray (Mass.) 
 368. 
 
 ^ Farrant v. Thompson, 5 B. & 
 Aid. 826. 
 
 ** Bacon's Abr. Leases A.
 
 13 SUBJECT MATTER. [§ 10 
 
 action for injury to sheep, which was committed during the terms 
 for which they had been leased and while the lessee was entitled to 
 possession, must be brought by the lessee.'^'' It is well settled that a 
 person having neither the possession nor the right to possession of 
 personal chattels cannot maintain trespass or trover for an injury done 
 to the property.'^^ Wliere cattle were leased for a term of years, to be 
 taken back by the owner, within the term, if he should think them 
 unsafe in the hands of the lessee, it was held that the lessor could not 
 reclaim them from an attaching creditor of the lessee.'''- Where the 
 lessee of a farm received from his lessor cattle and implements of 
 husbandry and agreed to return property of the same value and kind 
 at the end of the lease but not the identical property, the cattle and 
 goods thus delivered belong to the tenant during the term and can 
 be levied on by his creditors.^ ^ In an agreement for letting at an 
 annual rent, such contract does not lose its character as a renting by 
 the fact that personal property is included in the contract.'^* In one 
 case a lessor leased furniture in the demised premises to his lessee 
 and agreed to sell him the furniture at the end of the term upon 
 performance of all the covenants and undertakings in the lease. This 
 was construed to be a conditional sale and title did not pass to the 
 lessee till the conditions were fulfilled. '^^ In the case of a lease of a 
 house with goods, it is usual to make a schedule of the goods, and 
 have a covenant from the lessee to redeliver them at the end of 
 the term, for otherwise the lessor can only have trover or detinue 
 for them. The law will not imply a covenant in regard to things 
 personal.''® It has been held that if one make a lease of lands and 
 goods, and the lands are recovered against him, he shall hold the 
 goods till the end of the term and the rent shall be apportioned.'^^ 
 And apportionment of rent was also allowed where real and per- 
 sonal property was demised by one instrument and the title to the 
 personal property failed.''^ 
 
 '"Triscony v. Orr, 49 Cal. 612. " Mickie v. Lawrence, 5 Rand. 
 
 "2 Hilliard on Torts 502; Ed- (Va.) 571. 
 
 wards on Bailments, §315; 2 " Bean v. Edge, 84 N. Y. 510. 
 
 Greenl. Ev., § 616; Story on Bail- "Bull. N. P. 157; 1 Roll. Abr. 
 
 ments, §§ 394, 93; Muggridge v. 519, Gov. (F.) S. P.; Zule v. Zule, 
 
 Eveleth, 9 Met. (Mass.) 233. 24 Wend. (N. Y.) 76. 
 
 "Wyman v. Dorr, 3 Me. 183; "Year Book, 12 Hen. VIII, c. II, 
 
 Putnam v. Wyley, 8 Johns. (N. Y.) pi. 5; Richard le Taverner's Case, 1 
 
 432. Dyer 56a. 
 
 "Carpenter v. Griffin, 9 Paige (N. "Newton v. Wilson, 3 Hen. & M. 
 
 Y.) 310. (Va.) 470.
 
 ^§ 11, 12] CREATION OF THE RELATION. 14 
 
 III. Proof of Tenancy. 
 
 § 11. The existence of a tenancy or of the relation of landlord 
 and tenant with reference to a particular piece of ground is a fact 
 
 like that of possession and may, and generally must, be proved or 
 disproved by parol evidence, such as by payment of rent or the ad- 
 missions or declarations of the parties.'^'' Tenancy may be inferred 
 from the acts and conversations of the parties and an express con- 
 tract need not be proved.^" Where one in occupation of land belong- 
 ing to another is told of the terms on which he may continue to oc- 
 cupy and makes no objection thereto, he becomes a tenant and is 
 liable for the stated rent.^' The acceptance of possession of premises 
 offered on certain known terms and occupation during the period 
 designated creates a tenancy, and the tenant is bound for rent even 
 though he objected to the terms.*^ An expired lease, under which the 
 rent has all been paid, may be offered in evidence to show that the rela- 
 tion of landlord and tenant exists between an owner and occupant 
 of land. The tenancy which was thus proved was from year to year.«^ 
 "The production of a lease will not of itself show that the rela- 
 tion of landlord and tenant existed between the parties to the lease 
 * * * because there must be further shown by competent evidence, 
 the entry of the lessee under the lease, or a holding of the posses- 
 sion of the premises by the lessee that will be referable to the lease 
 as his authority.''^* 
 
 § 12. The payment of rent is a fact going to the establishment of 
 a tenancy, but it has been held not to be sufficient in or of itself to 
 prove such a relation exists.^^ The relation of landlord and tenant 
 must arise in respect to a specific piece of ground and so it must 
 appear that rent was paid and received in return for the use of the 
 premises in regard to which the alleged tenancy exists. The general 
 rule has been stated to be that proof of payment of rent by an oc- 
 
 '"Hearn v. Gray, 2 Houst. (Del.) " Loring v. Taylor, 50 Mo. App. 
 
 135; Victory v. Stroud, 15 Tex. 373; 80. 
 
 McDowell V. Hyman, 117 Cal. 67, 48 "" Dickson v. Moffat, 5 Colo. 114. 
 Pac. 984; Jackson v. Vosburgh, 7 «= Longfellow v. Longfellow, 54 
 
 Johns. (N. Y.) 186. Me. 240. 
 
 ^''Ladd V. Higgle, 6 Heisk. «^ Caldwell v. Center, 30 Cal. 539. 
 (Tenn.) 620. ^^ Sanford v. Herron, 161 Mo. 
 
 176, 61 S. W. 839.
 
 15 PROOF OF TENAXCY. [§ 13 
 
 cupant of premises is sufficient prima facie proof of the relation of 
 landlord and tenant between him and the owner to whom payment 
 is made.*® It is certainly true that a tenancy may be proved by parol 
 or circumstantial evidence, as by proof of the payment and receipt 
 of rent*^ and it has been held that a promise to pay rent shows the 
 promisor to be a tenant of the promisee.®* Occupation of the premises, 
 and payment of rent to the agent of tenants in common are enough 
 to raise the implication of a joint demise.*® Moreover when the ques- 
 tion of a tenancy arises collaterally to the main issue, payment of 
 rent by the alleged tenant to one claiming as owner is sufficient evi- 
 dence of the relation.®"' An action for rent by a landowner against 
 a trespasser is also sufficient proof of a tenancy as against the land- 
 owner. By suing for rent he alleges the existence of such a relation 
 and he cannot subsequently assume an inconsistent position.®^ 
 
 While payment and receipt of rent will ordinarily raise a neces- 
 sary inference of a tenancy, such is not the case where a judgment 
 of eviction has been entered against tenant, and he appeals, and pend- 
 ing the appeal secures his right to continue in possession by giving 
 bond for which privilege he pays rent which is accepted by the land- 
 lord. The obligation to pay is created by statute.®- 
 
 Wliere there is a written lease to begin on the completion of a 
 building, and the lessee takes possession, and pays rent, which pay- 
 ment is indorsed on the lease, it will be conclusively presumed that 
 the lessee occupied the premises under the lease and recognized its 
 binding force. Though there is something unsatisfactory about the 
 manner of the completion, and some changes are needed, these things 
 do not go to the validity of the lease. At most they afforded an op- 
 portunity to claim damage. This is especially true in case there is 
 no evidence of any other agreement between the parties in respect to 
 such occupancy and rent.®^ 
 
 All charges for the privilege of using real estate are not necessarily- 
 paid as rent and do not necessarily tend to show a tenancy. The 
 privilege obtained might be a mere license of an casement. Such was 
 
 '"Voiht V. Resor, 80 111. 331; ""Virginia Min. & Imp. Co. v. 
 
 Howe V. Gregory, 2 Ind. App. 477, Hoover, 82 Va. 449, 4 S. E. 689. 
 
 28 N. E. 776; Cressler v. Williams, ■"Cunningham v. Holton, 55 Me. 
 
 80 Ind. 366. 33, 57 Me. 420. 
 
 8' Barrett v. Jefferson, 5 Houst. "-Hopkins v. Holland, 84 Md. 84, 
 
 (Del.) 477. 35 Atl. 11. 
 
 ^ Hill V. Boutell, 3 N. H. 502. "' Hammond v. Barton, 93 Wis. 
 
 s" Porter v. Bleiler, 17 Barb. (N. 183, 67 N. W. 412. 
 Y.) 149.
 
 § 13] CREATIOX OF THE RELATIOX. 16 
 
 the case where payments were made for the right to store lumber on 
 the land of another.'^'* 
 
 § 13. Entry and occupation by one of several joint lessees is the 
 entry and occupation of all as far as the landlord is concerned, whatever 
 may be their relation among themselves, "Where two of four joint 
 lessees enter ujDon and occupy certain premises under a written agree- 
 ment made with the owner of the premises, and signed by all of them, 
 and make the entry at the time designated in the agreement for the 
 commencement of the occupancy, and the other two do not make 
 actual entry upon and occupy the premises, the occupancy of the first 
 two was the occupancy of all four, and upon the terms designated in 
 the agreement, and all four are lessees of the landlord, whatever 
 might be their relations inter se, and as such lessees they are responsi- 
 ble to the landlord in an action for use and occupation." ^^ 
 
 The prima facie case of tenancy made out by proving occupancy 
 may, however, be rebutted'^*' and the relation of landlord and tenant 
 will not be inferred if the occupation can be otherwise explained.®^ 
 The absence of occupancy by the alleged tenant and of any promise 
 on his part to pay rent will justify a finding that no tenancy exists.®^ 
 
 Cleaning a room by a prospective tenant is an equivocal act in re- 
 gard to proving occupation. It might be an act of possession or it 
 might be simply an act of preparation for further investigation. 
 If the cleaning was done only as an act of preparation for further 
 investigation on the part of the prospective tenant before decid- 
 ing on the matter, then the fact of the cleaning was of no con- 
 sequence.^^ A building in process of erection was leased and the de- 
 fendant caused his name to be painted on a sign before it was com- 
 pleted, and after it was done sent his porter to sweep it out but did 
 no other acts of taking possession. This constituted a taking of 
 possession and he was liable for rent. The rule is that any overt act 
 indicating dominion and the purpose to occupy and not to abandon 
 the premises is sufficient to carry the question of possession to the 
 
 " Ducey Lumber Co. v. Lane, 58 " Bailey v. Campbell, 82 Ala. 342, 
 
 Mich. 520, 25 N. W. 568. 3 So. 646. 
 
 °=Goshorn v. Steward, 15 W. Va. *' Emerson v. Weeks, 58 Cal. 439, 
 
 657; Howell v. Behler, 41 W. Va. 441. 
 610, 24 S. B. 646. "» Lewis v. Havens, 40 Conn. 363. 
 
 ^^ Hogsett v. Ellis, 17 Mich. 351. '■" Pacific Express Co. v. Tyler &c. 
 
 Compare Whaley v. Whaley, 2 Harr. Co., 72 Mo. App. 151. 
 (Del.) 53. 
 
 d I
 
 17 INTEKESSE TERMINI. [§§ 14, 15 
 
 § 14. Province of judge and jury. — On doubtful facts the jury 
 must determine whether the relation exists."^ Whether or not an 
 implied contract of tenancy exists in any given case is a question of 
 fact for the jury, to be determined by them upon all the circum- 
 stances of the case.^*'- Wliere A. said to B., "Go on and cultivate my 
 farm and raise crops and I will do what is right by you," it was for 
 the jury to determine whether a tenancy or employment was in- 
 tended. ^•'^ In case a landowner is being charged with liability for a 
 defect in premises, it is a question of fact whether an occupant thereof 
 is a tenant holding under such circumstances as to exonerate the 
 owner from liability for the dangerous condition of the building.^*** 
 A finding of the jury that the occupant was in possession of prem- 
 ises as tenant cannot be set aside if supported by the evidence."" Evi- 
 dence of collateral and inconclusive facts, not pertinent to the real 
 issue are inadmissible. Accordingly, where the sole issue is whether 
 defendant had become tenant of plaintifE, it is not competent for 
 defendant to show that before the time of the alleged contract, de- 
 fendant was in possession of the land under an executory contract of 
 purchase.^"" 
 
 Upon agreed facts the question whether a tenancy exists is for 
 the court. It is exclusively within the province of the jury to 
 find all inferences of fact, from facts stated, while the court is 
 precluded from so doing and is confined to the facts stated. But 
 the legal consequences or conclusions from the facts so stated are for 
 the court. ^•'^ The legal character and effect of a transaction and of an 
 instrument introduced as a lease are questions of law, and when 
 jurisdiction depends on the existence of a tenancy, they go to the 
 foundation of the action, and cannot be waived by counsel, by neglect 
 or otherwise, in the conduct of the cause. "^ 
 
 IV. Interesse Termini. 
 
 § 15. Under the old common law a bare lease did not give any 
 estate in the land, but only gave a right of entry which was called 
 
 101 Swanner v. Swanner, 50 Ala. "= Hanlon v. Thompson, 167 Mass. 
 
 66; Duncan v. Beard, 2 N. & McC. 190, 45 N. E. 88. 
 
 (S. C.) 400; Cunningham v. Cam- ""Hawkins v. James. 69 Miss. 
 
 bridge Sav. Banlt, 138 Mass. 480. 274. 13 So. 813. 
 
 "=Chamberlin v. Donahue, 44 Vt. "'Howard v. Carpenter, 22 Md. 
 
 57. 10. 
 
 "^McKenzie v. Sykes, 47 Mich. "^ ]sjig]itingale v. Barens, 47 Wis. 
 
 294, 11 N. W. 164. 389, 2 N. "W. 767; Rothbauer v. 
 
 "* Cunningham v. Cambridge Sav. State, 22 Wis. 468; Nelson v. Roun- 
 
 Bank, 138 Mass. 480. tree, 23 Wis. 367. 
 Jones L. & T.— 2
 
 § 15] CREATION OF THE RELATION. IS 
 
 the lessee's interest in the term or "intcresse termini." Wlien the 
 lessee had actually entered and thereby accepted the grant, the es- 
 tate became vested in him, but until entry he could not maintain 
 trespass. ^°^ It is laid down in many of the ancient authorities that a 
 lessee before entry cannot maintain trespass.^^" In one case an owner 
 in fee demised lands for a term of years subject to a proviso that 
 the lessor should not pay a certain debt, and to a restriction that the 
 lessee should not enter into possession before a certain time. Prior 
 to that time the lessee brought trespass against sheriffs who levied 
 on the premises as the property of the lessor. A rule for a non- 
 suit against the plaintiff was made absolute.^^^ The true ground for 
 this decision was said to be that a lessee for years before entry can- 
 not bring trespass. It is pointed out in the same case that an in- 
 tcresse termini is sufficient to enable a person to demise to a plaintiff 
 in ejectment whose entry is admitted. So that any technical diffi- 
 culty as to trespass not lying when a mortgagee of leasehold prop- 
 erty brings ejectment before entry would be avoided.^^^ But it is a 
 well settled general principle that the assignee of a term cannot 
 maintain trespass in respect to the premises unless he has actually 
 entered into possession of them. All the authorities agree that to en- 
 title a party to maintain trespass, actual entry is necessary. To 
 render him liable on the covenants an assignment in law is sufficient ; 
 but to maintain trespass, there must be an actual entry.^^^ Still a 
 lessee, even before entry, has sufficient interest in the leased premises 
 to entitle him to bring ejectment to recover possession of them."* 
 
 An interesse termini is created by a demise even though the lessee 
 has no present right to obtain an estate in the land by entering under 
 his lease. Whether the term is to commence immediately or at a fu- 
 ture day, the interesse termini at once vests in the lessee, upon the 
 execution of the lease."^ But where an outstanding right would pre- 
 vent the lessee from ever entering under his lease it seems that he 
 acquires no interesse termini. Such a case" arose under the following 
 circumstances : An eight-acre lot, part of a larger tract of land, was 
 
 ^'^Lee v. Lee, 74 N. Car. 70; Lar- B. N. S. 678, 112 E. C. L. 678; 
 
 kin v. Avery, 23 Conn. 304, 314. Ryan v. Clark, 14 Q. B. 65, 73, 68 
 
 ""Co. Litt. 296b, Com. Dig., Tres- E. C. L. 63. 
 pass (B). "*Doe v. Day, 2 Q. B. 147, 156, 42 
 
 "^Wheeler v. Montefiore, 2 Q. B. E. C. L. 612; Ryan v. Clark, 14 Q. 
 
 133, 42 E. C. L. 605. B. 65, 73, 68 E. C. L. 63. 
 
 "=Doe V. Day, 2 Q. B. 147, 156, 42 "'Lock v. Furze, 19 C. B. N. S. 96, 
 
 E. C. L. 612. 103, 115 E. C. L. 94, L. R. 1 C. P. 
 
 "'Harrison v. Blackburn, 17 C. 441.
 
 19 IXTERESSE TERMINI. [§ 16 
 
 subject to an outstanding lease. The entire tract was leased for a 
 shorter period than the eight-acre lease had to run, and the lessee 
 went into possession of the rest of the land. It was held he did not 
 even have an interesse termini in the eight-acre lot,"*' because a lease 
 which cannot take efEect in interest, except by possibility, if it be not 
 an estoppel, shall be void.^" It is laid down in the language of Lord 
 Chief Baron Gilbert that "if one makes a lease to A. for ten years, 
 and the same day makes a parol lease to B. for ten years of the same 
 lands, this second lease is absolutely void, and can never take effect 
 either as a future interesse termini, or as a reversionary interest, 
 though the first lessee should forfeit or otherwise determine his es- 
 tate.""^ So the lease was void as to a part of land conveyed and rent 
 could not be apportioned. There is no case where an entire rent re- 
 served has been held to be apportionable in which the tenant has not 
 been at some period subject to the entire rent by virtue of the de- 
 mise. Therefore the lessor was not entitled to distrain for the whole 
 rent or for any part of it.^^^ 
 
 ■After a parol lease of land to take effect in futuro had been agreed 
 upon, the owner of the land sold a right of way over it to a raih\ay 
 company. This company, acting without knowledge of the lease, and 
 prior to the time when possession under it was to be transferred, con- 
 tracted for the construction of its road. After the lessee entered into 
 possession he attempted to hold the railway company as a joint tres- 
 passer for a disturbance of his possession. This could not be done. 
 There is no law charging one with notice of a parol lease before occu- 
 pation has been taken under it. Prior to taking possession a tenant 
 under a verbal lease has no estate in the lands, so when the company 
 contracted for the construction of the road, the lessee had no interest 
 in the land.^^** 
 
 § 16. Even though there is an cutsanding- interesse termini, the 
 owners of the reversion could maintain an action of trespass against 
 a disseisor. As between the owner of tlie fee and the disseisor, the 
 right of entry accompanies the lawful seisin; the disseisin having 
 ousted and dispossessed the tenant as well as the landlord; and the 
 entry operating to restore the rights of both. The reversioners' seisin 
 undoubtedly gave them a right of entry, carrying with it a right of 
 possession, against all persons except the tenants for years. But the 
 
 ""Neale v. Mackenzie, 1 M. & W. "» Neale v. Mackenzie, 1 M. & W. 
 
 747. 747. 
 
 "' Comyns's Dig., Estates, G. 13. ''" McKinley v. Chicago &c. R. Co., 
 
 "5 Bacon's Abr., Leases (N). 40 Mo. App. 449.
 
 § 17] CREATION OF THE RELATION. 20 
 
 tenants for years had been dispossessed by the disseisin; and so no 
 possession of theirs could be violated by the reversioners' entry.^^^ 
 There are authorities for the doctrine that the owner of the reversion 
 has a right of entry on a tenant for years, without dispossessing him, 
 as to view in respect of waste, to demand rent where a rent is reserved, 
 to repair, or the like.^^^ Until the reign of Edward III a lessee for 
 years ousted by a stranger had no remedy by which to recover his es- 
 tate, but to apply to his lessor to bring a real action to recover back 
 the seisin of the freehold from the trespasser; and then the lessor 
 having obtained the seisin, the tenant's right to have the term again 
 attached, and it became vested in him.^^^ 
 
 § 17. If a lease is so worded as to be a bargain and sale under 
 the statute of uses, actual entry is unnecessary, and possession is im- 
 mediately executed in the lessee. Blackstone thus describes the mode 
 of conveyance by lease and release: "A lease, or rather bargain and 
 sale, upon some pecuniary consideration, for one year, made by the 
 tenant of the freehold, to the lessee or bargainee. ]SI"ow this without 
 any enrollment makes the bargainor stand seized to the use of the 
 bargainee and vests in the bargainee the use of the term for a year; 
 and then the statute immediately annexes the possessions. He there- 
 fore being thus in possession is capable of receiving a release of the 
 freehold and reversion."^ ^* 
 
 A valid lease of real property entitles the lessee to the entire charge 
 of it during the term stipulated for without any further act on the 
 part of the lessor and the execution of such a lease is a complete 
 leasing even before entry.^^^ 
 
 In speaking of a lease where the lessee had not entered into pos- 
 session it was said: "No such relation (of landlord and tenant) ex- 
 isted. The mere signing of the agreement (lease) does not establish 
 that relation, although it may create a right of action for damages 
 for a breach of the contract or for a specific performance of it. The 
 defendant had never taken possession under this contract."^^® The in- 
 strument in this case was clearly a lease and not merely an agreement 
 for one. A regular rent was reserved of more than nominal amount. 
 So the court must have overlooked the fact that this would take effect 
 
 1=1 Brewer v. Stevens, 13 Allen i=^ 2 Bl. Com. 339. 
 
 (Mass.) 346. '"- Chung Yow v. Hop Chong, 11 
 
 i~Hunt V. Dowman, Cro. Jac. 478; Ore. 220, 4 Pac. 326. 
 
 Bro. Ab. Tresp. 97. "" James v. Kibler, 94 Va. 165, 26 
 
 1=^ Brewer v. Stevens, 13 Allen S, E. 417. 
 (Mass.) 346.
 
 21 SIMILAR COXTRACTUAL RELATIONS. [§18 
 
 as a bargain and sale and the estate would be executed in the lessee 
 by virtue of the Statute of Uses. 
 
 The question of entry by the lessee becomes important, however, 
 when there is no express covenant to pay rent and the lessor seeks to 
 recover rent by suit. An action for use and occupation under the stat- 
 ute^" does not lie where there has not been an actual entry by the 
 lessee.^^* 
 
 V. Similar Contractual Relations. 
 
 § 18. In general. — In distinguishing tenancy from other con- 
 tractual relations a lease may be defined to be a contract for the pos- 
 session and profits of lands and tenements on the one side and a recom- 
 pense of rent or other income on the other.^-^ The relation of landlord 
 and tenant may exist, however, although certain collateral matters are 
 contained in the contract of letting. Illustrations of this are found in 
 leases which give the lessee an option to purchase,^^*^ or where the 
 lessor binds himself to erect buildings on the premises.^" 
 
 On the other hand, contractual relations may exist between persons 
 with regard to the occupation of land which impose duties and re- 
 strictions similar to those of a tenancy, and yet there will not be a 
 tenancy. Thus, an agent using and controling the land of his prin- 
 cipal would not ordinarily become his tenant.^^'^ Contracts for the cul- 
 tivation of land upon shares, contracts for lodgings, contracts for em- 
 ployment, and license to do certain acts upon land of another may 
 all be made without establishing the technical relation of landlord 
 and tenant. The test in every case is the intention of the parties; 
 but in determining that intention more or less arbitrary rules of con- 
 struction have grown up which will be discussed and explained in the 
 following pages. 
 
 ^"11 Geo. 2 c. 19, § 4. worthy of notice in this connection: 
 i=^Lowe v. Ross, 5 Ex. 553. "Even if one takes possession of 
 '^ Gary Hardware Co. v. McCarty, land as agent and uses and controls 
 10 Golo. App. 200, 50 Pac. 744; it the relation of landlord and ten- 
 Branch V. Doane, 17 Gonn. 402; ant arises." Ward v. Small, 90 Ky. 
 Bruckman v. Dry Goods Go., 91 Mo. 198, 204, 12 Ky. L. R. 58, 13 S. W. 
 App. 454; Sawyer v. Hanson, 24 1070, citing Farrow v. Edmundson, 
 Me. 542, 545; Bentley v. Adams, 92 4 B. Mon. (Ky.) 605, which holds 
 Wis. 386, 66 N. W. 505. that an agent in occupation of land 
 ""See infra, §§ 387-388. for his principal cannot deny the 
 "1 See infra, §§ 372-381. latter's title. The principal case 
 "= Hopkins v. Ratliff, 115 Ind. 213, can hardly be regarded as repre- 
 17 N. E. 288. The following Ian- senting the law generally, 
 guage of the Kentucky court is
 
 § 19] CREATION OF THE EELATION. 22 
 
 § 19. Statutory remedy dependent on technical relation of land- 
 lord and tenant. — In New York the cases are numerous in which the 
 summary remedy to regain possession of real estate has been refused 
 because the contract or circumstances under which the owner of 
 premises permitted another to take possession of them, contemplated 
 some condition or consideration apart from rent, or a tenancy at the 
 mere sufferance or will of the owner.^^^^ The right to take advantage 
 of this remedy depends on the existence of the conventional relation 
 of landlord and tenant, and this conventional relation means the 
 relation created by the convention or agreement of the parties.^^* 
 In one case an owner of premises induced his nephew to live with 
 him and make a home for him on the promise that the nephew should 
 receive the property by devise. The occupation being under such a 
 contract, it was decided that the nephew could not be regarded as a 
 tenant and evicted by means of the summary process provided by 
 statute. "Whatever else may be said of such an agreement," remarks 
 the court, "it is plain that it is not one of leasing premises. It is 
 rather one to provide the petitioner with board and the comforts of 
 a home with his kindred. No such thing as rent was spoken of, nor 
 was it within the intention of the parties. The tenure, so far as it 
 was defined at all, seemed to be one that would, bye and bye, ripen into 
 a fee."i=»^ 
 
 In many other jurisdictions, the right to maintain summary 
 process for the recovery of land is made to depend on the existence 
 of the relation of landlord and tenant between the parties. A person 
 in possession of lands under a contract of purchase is not a tenant, so 
 as to subject him to a warrant of forcible detainer.^ ^^ The statutory 
 process cannot be used to evict a mortgagor who holds over after a 
 breach of condition and a foreclosure of the mortgage. ^^'^ Under the 
 Wisconsin statute it was held that, if there was no lease, and the re- 
 lation of landlord and tenant did not exist between the parties, a 
 
 i^Dolittle V. Eddy, 7 Barb. (N. "^Matthews v. Matthews, 49 Hun 
 
 Y.) 74; People v. Annis, 45 Barb. (N. Y.) 346. 
 
 (N. Y.) 304; Haywood v. Miller, 3 ""Hay v. Connelly, 1 A. K. Marsh. 
 
 Hill (N. Y.) 90; Russell v. Russell, (Ky.) 393; Jack v. Carneal, 2 A. K. 
 
 32 How. Pr. (N. Y.) 400; Williams Marsh. (Ky.) 518. 
 
 V. Bigelow, 11 How. Pr. (N. Y.) "' Davis v. Hemenway, 27 Vt. 589; 
 
 83; Sims v. Humphrey, 4 Denio (N. Plato v. Roe, 14 Wis. 453; Ott v. 
 
 Y.) 185; Roach v. Cosine, 9 Wend. Rape, 24 Wis. 336; Ragan v, Simp- 
 
 (N. Y.) 227. son, 27 Wis. 355. 
 
 ^Benjamin v. Benjamin, 5 N. Y. 
 383.
 
 23 SIMILAR CONTRACTUAL RELATIONS. [§ 20 
 
 trial justice had no authority conferred by the statute to decide a 
 case in regard to the summary recovery of land.^^^ 
 
 A purchaser of premises at an execution sale in actual possession 
 agreed to reconvey to the execution debtor at the end of three years 
 if the latter would forego his right of redemption and allow the pur- 
 chaser to retain possession rent free during such three-year term. 
 For a failure to reconvey according to the terms of this contract, the 
 court held that an action of forcible detainer would lie against the 
 occupant, as he became a tenant at sufferance by his wrongful hold- 
 ing over.^^® 
 
 § 20. A servant or employe occupying a house of his master does 
 not ordinarily become his tenant. This question came up before 
 the court of Exchequer Chamber in an early case upon an indictment 
 for burglary. The prosecutors were partners in their business of 
 bankers, which business was transacted in the lower rooms of the 
 house where the burglary was committed, of the whole of which house 
 they were owners. They were also partners in a brewery concern, 
 which they carried on in some adjoining premises. The upper rooms 
 were inhabited by a man who was servant to the prosecutors in their 
 brewery business at weekly wages, with firing and lodging for himself 
 and his family. The contract as to the lodging was not in general 
 terms that he should be provided with lodgings, but that he should 
 have the particular rooms which he did inhabit ; and to that part of 
 the house there was a separate entrance from without. The question 
 before the court was whether this inhabitancy could be considered as 
 the inhabitancy of the prosecutors by their servant or whether the em- 
 ployee by the contract became tenant, and the upper part of the house 
 was his dwelling-house. The judges were of opinion that the employee 
 did not become a tenant. Lord Mansfield referred to the fact that 
 *'many servants have houses given them to live in, as porters at park 
 gates,'' and then disposed of the case by asking, "if a master turns 
 away his servant, does it follow that he cannot evict him till the end 
 of the year?" Lord Ellenborough suggests that this employee could 
 not have maintained trespass against his employers for entering these 
 rooms ; and puts the question, "if a man assigns to his coachman tlie 
 rooms over his stable, does he thereby make him his tenant?""" 
 
 It may be stated as a general rule that where the employee occupies 
 
 "« Nightingale v. Barens, 47 Wis. '^"Steele v. Steele, 2 Tex. App. 
 389, 2 N. W. 767. Cas., § 345. 
 
 "° King v. Stock, 2 Taunt. 339.
 
 § 20] CREATION OF THE RELATION. 24 
 
 premises of his employer for the purpose of better carrying on the em- 
 ployer's business, and without payment of rent, these circumstances 
 are usually decisive that the relation of landlord and tenant does 
 not exist between the parties. ^^ When the employer furnishes a 
 house for the employee to occupy during his employment and as 
 part of his compensation, this is also indicative of an intention not 
 to create a tenancy.^*^ 
 
 In one case a person was employed by the owner of land to super- 
 intend the land and look after the business of the owner, and while 
 in such employment he occupied a house which was situated upon the 
 land. His occupancy of the house did not create the relation of land- 
 lord and tenant between him and the owner.^^^ A party in possession 
 under contract to care for property and with the privilege of pur- 
 chasing was held not to become a tenant by virtue of such arrange- 
 ment."* It has also been decided that a Eoman Catholic priest in 
 charge of a church and parish house was not the tenant of his bishop,"^ 
 and the same conclusion was reached in regard to a protestant minister 
 who lived, rent free, in a parsonage owned by his church. ^*^ The sit- 
 uation was analogous and warranted an application of the same doc- 
 trine in the case of a school teacher occupying the school house where 
 he taught,**^ and in the case of a lock-tender for a canal company, who 
 occupied a house and garden on the company's land.^*^ A public officer 
 is not a tenant of the state or municipality for which he works, al- 
 though he uses the office with which he is supplied in part to transact 
 his private business.^*^ 
 
 An old wooden building, situated on untaxed land owned by a hos- 
 pital corporation, was inhabited by a workman, with his family, who 
 
 "^Rex V. Cheshunt, 1 B. & Aid. "'Davis v. Williams, 130 Ala. 530, 
 
 473; State v. Curtis, 4 Dev. & B. 30 So. 488. 
 
 (N. Car.) 222; Mead v. Pollock, 99 ^" Reeder v. Bell, 7 Bush (Ky.) 
 
 111. App. 151; Haywood v. Miller, 3 255. 
 
 Hill (N. Y.) 90; Kerrains v. People, '« Chatard v. O'Donovan, 80 Ind. 
 
 60 N. Y. 221, 19 Am. R. 158, revers- 20. 
 
 ing 1 Thomp. & C. 333; McQuade v. ""East Norway Lake Church v. 
 
 Emmons, 38 N. J. L. 397. Froislie, 37 Minn. 447, 35 N. W. 260. 
 
 '"Haywood v. Miller, 3 Hill (N. "'School District No. 11 v. 
 
 Y.) 90; People v. Annis, 45 Barb. Batsche, 106 Mich. 330, 64 N. W. 
 
 (N. Y.) 304; Doyle v. Gibbs, 6 Lans. 196; State v. Curtis, 4 Dev. & B. 
 
 (N. Y.) 180; Bowman v. Bradley, (N. Car.) 222. 
 
 151 Pa. St. 351, 24 Atl. 1062; Doe "« Morris Canal &c. Co. v. 
 
 v. Derry, 9 C. & P. 494, 38 E. C. L. Mitchell, 31 N. J. L. 99. 
 
 291. "" Board of Supervisors v. Cow- 
 gill, 97 Mich. 448, 56 N. W. 849. 
 
 I
 
 25 SIMILAR CONTRACTUAL RELATIONS. [§ 20 
 
 was exclusively emplo3'ed by the corporation, from whose wages the 
 superintendent of the hospital deducted a certain sum monthly and 
 gave him a receipt therefor as rent, he crediting the corporation with 
 the sum so deducted. On the trial of the issue whether a tax was 
 lawfully assessed on this building it was held that this arrangement 
 did not create a tenancy and the building could not be taxed as 
 property from which the corporation derived an income. "If the 
 occupation was one merely by reason of service," said the court in 
 disposing of this question, "the building being held as incident only 
 to the general purpose for which the land was held, and occupied by 
 the person charged with the care of the buildings on the hospital 
 grounds for reasons of convenience; and the rent was paid and re- 
 received, in the manner stated, as a convenient mode of adjusting the 
 compensation of the person so employed, and not as an income or 
 fruit of an estate granted ; we are of opinion that tlie exemption would 
 still attach to the property. By the ruling of the court below, as we 
 understand it, the question was made to turn upon the single fact of 
 the payment and receipt of rent. This we think was erroneous."^^" 
 
 The fact that the employee, with the permission of the proprietor, 
 keeps up and maintains a separate establishment and table, though 
 strengthening the inference afforded by the use of separate apart- 
 ments, is yet not conclusive of the existence of the relation of land- 
 lord and tenant. It may be rebutted by other testimony that such 
 separate establishment was, though separate, not independent of the 
 proprietor's control, but consistent with his' right of supervision and 
 control.^ ^^ 
 
 While the position of a servant occupying a house belonging to his 
 master is that of a mere licensee, it has been suggested that im- 
 mediately upon the termination of the employment, a tenancy at will 
 or by sufferance springs up.^^^ This is not so. In order to have that 
 effect the occupancy must be sufficiently long to warrant an inference 
 of consent to a different holding. Any considerable delay wouhl be 
 sufficient, but there is no principle which would change the occupant 
 eo instanti, from a mere licensee to a tenant. The employer should 
 resume control of his property within a reasonable time or consent 
 would be inferred. Whether this time is a day or a week may depend 
 on circumstances.^^^ In one case the consent of the employer that the 
 
 >=" Massachusetts Gen. Hospital v. '"People v. Annis, 45 Barb. (N. 
 
 Somerville, 101 Mass. 319, 326, per Y.) 304. 
 
 Wells, J. "'Kerrains v. People. 60 N. Y. 
 
 ^'-'^ Waller v. Morgan, 18 B. Mon. 221, 19 Am. R. 158, reversing 1 T. & 
 
 (Ky.) 136, 142. C. 333.
 
 § 21] CEEATIOX OF THE KELATIOX. 26 
 
 employee might remain until his wife recovered from an illness, was 
 held not to amount to a consent.^^* In the ordinary case, where an em- 
 ployee occupying rooms of his employer is discharged, he is not en- 
 titled to the notice to quit which is necessary when a tenant is guilty 
 of holding over.^^^ 
 
 § 21. There is no inconsistency in the relation of master and 
 servant with that of landlord and tenant. A master may pay his 
 servant by conferring on him an interest in knd either in fee, for 
 years, at will, or for any other estate or interest, and if he do so the 
 servant then becomes entitled to the legal incidents of the estate as 
 much as thought it were purchased for any other consideration.^^® The 
 mere fact that an employee occupies one of his employer's rooms with- 
 out paying rent for it does not necessarily disprove the relation of 
 landlord and tenant. To establish a holding as a servant, the occu- 
 pancy must be subsidiary and necessary to the service. ^^^ 
 
 In one case arising on an indictment for forcible entry the servant 
 occupied, with his family, a separate and distinct dwelling, several 
 hundred yards from that of the employer and under a special con- 
 tract by which, for his services as a laborer he was to have furnished 
 him a dwelling place and a monthly allowance of meal and meat, as 
 well as the privilege of cultivating a small strip of land for his own 
 benefit. The court were of opinion that this created the legal relation 
 of landlord and tenant between the parties.^^* The ground on which 
 the decision rests is thai the house occupied by the servant was so 
 far away from the master's residence that it was just the same as if it 
 had been on a separate and disconnected lot of land. The real point 
 on which the case should have turned, was the nature of the occu- 
 pation, which was in pursuance of a contract for employment. 
 The case seems inconsistent with a previous decision in the same 
 jurisdiction^^'' and contrary to the general trend of authority. 
 
 A contract to employ a laborer for a year at certain wages and to 
 furnish him with a house and pasture privileges at a stipulated rate 
 is not a leasing for a year. Furnishing the house is simply a mode 
 of paying for services. From the time the servant quits work he would 
 
 '=^*Doyle V. Gibbs, 6 Lans. (N. Y.) i=^ Snedaker v. Powell, 32 Kan. 
 
 180. 396, 4 Pac. 869. 
 
 "= Clark V. Vannort, 78 Md. 216, ''' State v. Smith, 100 N. Car. 466, 
 
 27 Atl. 982. 6 S. E. 84. 
 
 "'Hughes V. Chatham, 5 Man. & ""State v. Curtis, 4 Dev. & B. (N. 
 
 G. 54, 44 E. C. L. 39. ' Car.) 222.
 
 27 SIMILAR COXTRACTUAL RELATIONS. [§ 23 
 
 be in no better position than a strict tenant at will who has, by his 
 own act, terminated the tenancy and would, at most, be entitled only 
 to a reasonable time for removing from the house."*' It has been held, 
 in a case where a servant was to be given the use of land in payment 
 for services, and failed to render the services, that the servant was not 
 entitled to emblements as a tenant at will. The usual rule is that the 
 possession of land on which a crop is growing continues in a tenant at 
 will until the time of taking it arrives. But this rule has no 
 application to the case of a tenant who has himself terminated the 
 tenancy without the fault of the lessor.^ *^ 
 
 § 22. An independent contractor who contracts to do certain acts 
 on land belonging to another does not become a tenant unkss he 
 goes into possession. So a contract to grade city lots was held not 
 to give the contractor the rights of a tenant in them.^''- Where tlie 
 owner of a mine entered into a contract to have certain improve- 
 ments made in it, and, as payment, to allow the party making them 
 to operate the mine for a year on a stated basis for sharing in the 
 metal produced, this was held to constitute a lease and not an operat- 
 ing contract. The lessee was expressly authorized to use necessary 
 fuel and to cultivate so much of the surface as was necessary to pro- 
 vide provender for the horses."^ 
 
 The circumstance that a tenant stands in the relation of an in- 
 dependent contractor to his landlord and that, too, in connection 
 with the demised premises is not inconsistent with a tenancy. Thus, 
 where a tenant contracted to carry on a boarding house for his land- 
 lord, a railroad company, and to supply board for the landlord's em- 
 ployees, the agreement was held to create a tenancy because the tenant 
 was to be in exclusive control and was to pay a fixed, rent.^''* The rela- 
 tion of landlord and tenant exists between the parties by virtue of 
 such an arrangement, even though no rent is charged by the railroad 
 lessor. The fact that the company agreed to aid in collecting what 
 might be due from time to time from the boarders by withholding 
 moneys payable to them by the company, did not convert the lessee 
 into a servant of the company or change his relation to the company 
 as tenant to the company's house.^^^ 
 
 ""McGee v. Gibson, 1 B. Men. i"» Pelton v. Minah Con. Min. Co., 
 
 (Ky.) 105. 11 Mont. 281, 28 Pac. 310. 
 
 "'Butler v. Rice, 17 Hun (N. Y.) '"^ Lightbody v. Truelsen. 39 Minn. 
 
 409. 310, 40 N. W. 67. 
 
 «= Post v. Phelan, 3 How. Pr. N. '™ Doyle v. Union Pac. R. Co., 147 
 
 S. (N. Y.) 133. U. S. 413, 13 Sup. Ct. 333.
 
 § 23] CREATION OF THE RELATION. 28 
 
 A close question arises in regard to contracts for operating a mill 
 where the contractor is not to pay rent, but agrees to manufacture all 
 raw material furnished by the owner at a stipulated price, to employ 
 operatives and to keep the mill in good running order. In one case 
 such an agreement was held to constitute a lease, and the landlord was 
 said to receive rent in a lessened price for the work of manufacture. 
 Some of the provisions had a double aspect, and consistently with 
 them there might have been either an agency or a tenancy, but there 
 were others which admitted of only one construction. The operator 
 was to repair the factory; he was to have possession and control; he 
 could select his own servants and was entitled to use the land around 
 the factory. ^^® The opposite view in such case is that there was a mere 
 contract of hiring an independent contractor to operate a mill. In- 
 stead of hiring men by the day or month, at fixed wages, to manu- 
 facture his logs into shingles, a mill owner employed one man to do 
 the whole work, paying him according to the quantity and quality of 
 the manufactured product. He thereby relieved himself from all the 
 details of the work and at the same time secured speed and faithful 
 work by making the earnings depend on quantity and quality. The 
 provisions of the contract indicate very clearly that the contractor was 
 to have the possession and use of the mill for the single purpose of 
 doing the work of the owner. "That this was strictly a contract for 
 the performance of labor is evident," say the court, "if we consider 
 who was the owner of the shingles during the process of manufacture." 
 The title to the manufactured product during all stages remained in 
 the mill owner.^^^ Provided the agreement is put in the form of a 
 lease, however, it does not prevent the parties from entering into the 
 relation of landlord and tenant that rent is reserved to the landlord 
 as a certain part of the manufactured products. ^''^ So, where a grist 
 mill was let for one-third the toll and the tenant with his family 
 dwelt in the mill house, it was held the relation of landlord and 
 tenant existed between the parties.^*^^ 
 
 § 23. Tenant or lodger. — It is a general rule, universally recog- 
 nized by decided cases, that a contract for the letting of lodgings does 
 not create the relation of landlord and tenant between the parties 
 thereto. Although it may be a matter of doubt in special cases 
 whether the parties intend to enter into an agreement for the letting 
 
 i*^ Fiske V. Framingham Mfg. Co., "=* Jolly v. Single, 16 Wis. 280; 
 
 14 Pick. (Mass.) 491. Walls v. Preston, 25 Cal. 59. 
 
 '"Whitney v. Clifford, 46 Wis. ^c'^Fry v. Jones, 2 Rawle (Pa.) 
 
 138. 49 N. W. 835. 11.
 
 29 SIMILAR CONTRACTUAL RELATIOXS, [§ 24 
 
 of lodgings or for an actual demise, once the nature of the agree- 
 ment is determined, the different results flowing from the two con- 
 tracts are well recognized and established. "Where one contracts 
 with the keeper of a hotel or boarding house for rooms and board, 
 whether for a week or a year, the technical relation of landlord and 
 tenant is not created between the parties. The lodger acquires no in- 
 terest in the real estate. If he is turned out of the rooms before the 
 time expires, he cannot maintain ejectment ; and while he remains, the 
 hotel keeper cannot get his pay by distraining for rent in arrear.""" 
 "A lodger was never considered by any one as an occupier of an house. 
 It is not the common understanding of the word ; neither the house, 
 nor even any part of it, can be properly said to be in the tenure or 
 occupation of the lodger."^" ^ 
 
 A question as to the nature of the contract arose in regard to the 
 letting of furnished rooms which were in charge of a housekeeper 
 employed by the owner of the building. The rooms were daily cared 
 for and kept in order by this housekeeper; fires were made and fuel 
 furnished, as were, also, fresh water, towels, soap and other things 
 needed in such apartments; the rooms being occupied only for sleep- 
 ing and lodging. The key to the room in question was kept by the 
 woman in charge. The occupation under such circumstances did not 
 create a tenancy and notice was not necessary to terminate it.^'- 
 
 § 24. An oral contract by the keeper of a boarding house to pro- 
 vide a man and his family for six months with board and with tliree 
 specified rooms as lodgings, and to light and heat the rooms, has been 
 held to be not within the statute of frauds. This was an ordinary 
 agreement for board and lodgings under which the keeper of the lodg- 
 ing house retained the legal possession, custody and care of the entire 
 house and of every room therein. The fact that the rooms were 
 specified in the agreement gave the lodger no greater legal rights in 
 those rooms than if they had not been so specified. He did not have 
 
 ""Wilson v. Martin, 1 Denio (N. "^ Per Lord Hardwicke in Fludier 
 
 Y.) 602, 604, per Bronson, J. To v. Lombe, Cas. temp. Hardw. 307; 
 
 same effect see White v. Maynard, approved in Cook v. Humber, 11 C. 
 
 Ill Mass. 250; Messerly v. Mercer, B. (N. S.) 33, 46; Brewer v. 
 
 45 Mo. App. 327; Wriglit v. Stav- M'Gowen, L. R. 5 C. P. 239; Mc- 
 
 art, 2 E. & E. 721, 105 E. C. L. Dowell v. Hyman, 117 Cal. 67, 48 
 
 720; Smith v. St. Michael, 3 E. & Pac. 984. 
 
 E. 383, 107 E. C. L. 382; Stamper "= Messerly v. Mercer, 45 Mo. App. 
 
 V. Sunderland, L. R. 3 C. P. 388; 327. 
 Reg. V. St. George's Union, L. R. 
 7 Q. B. 90.
 
 § 24] CREATIOX OF THE RELATION. 30 
 
 any such exclusive possession of the rooms specified as would enable 
 him to maintain any action founded on that possession.^'^ A covenant, 
 in a lease of a coffee-house in London, not to lease or underlet the 
 premises or any part thereof, was not broken by permitting a man to 
 lodge for a year in a particular room, "of which he had exclusive 
 possession," unless imder a distinct demise of the room so as to en- 
 able him to maintain trespass. ^^* 
 
 On the other hand, there are decisions to the effect that agreements 
 to take certain apartments in a house as lodgings at a yearly rent are 
 within the statute of frauds.^^^ But there is nothing in either of these 
 cases to show that the rooms were in a boarding house. And it has 
 been suggested in commenting on them that each appears to have been 
 a case of an agreement which if perfected by entry, would have 
 amounted to an actual demise and would have given the occupant all 
 the possessory rights of a tenant.'^*' "Flats are as much separate dwell- 
 ings as ordinary adjoining houses are. The difference is that flats are 
 under one roof and are divided one from another by a horizontal plane, 
 but ordinary adjoining houses by a perpendicular or vertical plane."^" 
 An entire floor, or a series of rooms, or even a single room, may 
 doubtless be let for lodgings, so separated from the rest of the house 
 as to become in fact and in law the separate tenement of the lessee."^ 
 
 ^" White V. Maynard, 111 Mass. adequate remedy in an action on 
 
 250. The Illinois court discussed the contract." Cochrane v. Tuttle, 
 
 such a case in the following Ian- 75 111. 361. 
 
 guage: "It is very doubtful ^'^ Doe v. Laming, 4 Camp. 73; 
 
 whether the relation of landlord Greenslade v. Tapscott, 1 C. M. & 
 
 and tenant existed. The arrange- R. 55, 4 Tyrwh. 566. 
 
 ment has more the elements of a ^" Inman v. Stamp, 1 Stark. 10; 
 
 simple contract than a tenancy. Edge v. Strafford, 1 Tyrwh. 293, 1 
 
 What estate did she have, accord- C. & J. 391. 
 
 ing to her own testimony? She ^"^ Wright v. Stavert, 2 E. & E. 
 does not deny defendant's state- 721, 105 E. C. L. 720. In the words 
 ment, that the distinct understand- of Judge Gray, in White v. May- 
 ing was, 'His house was to be his nard. 111 Mass. 250, 254. 
 house.' Both agree defendant was '''McDowell v. Hyman, 117 Cal. 
 to have exclusive use of a part of 67, 71, quoting from Stamper v. 
 the house, and it seems to us the Sunderland, L. R. 3 C. P. 388, 400. 
 true meaning of the agreement is, ^'^ Newman v. Anderton, 2 B. & P. 
 she was to have the privilege of cer- N. R. 224; Fenn v. Grafton, 2 Bing. 
 tain rooms for keeping boarders, N. C. 617, 3 Scott 56; Monks v. 
 besides defendant's family, and by Dykes, 4 M. & W. 567; Swain v. 
 no fair construction could the con- Mizner, 8 Gray (Mass.) 182; Shum- 
 tract create any estate in her, either way v. Collins, 6 Gray (Mass.) 227; 
 at will or for any definite period. White v. Maynard, 111 Mass. 250; 
 For any breach she could have an Porter v. Merrill, 124 Mass. 534. 
 
 I
 
 Gl SIMILAR CONTRACTUAL RELATIONS. [§ 25 
 
 In such a case it is not conclusive against a tenancy that the landlord 
 agrees to provide a private table and to render other services. The 
 written contract in one case purported to be a lease, for a precise time 
 and at a definite weekly rate of certain specific rooms so separated 
 from all other rooms in the same house as to become the separate 
 tenements of the lessee. The fact that, besides leasing the rooms, the 
 lessor undertakes to serve a private table, and to furnish certain specific 
 accommodations, and imposes certain restrictions as to the manner 
 of use, does not change the essential character of the instrument. ^^^ 
 Where the form of the contract was that of a lease it was said that 
 such an agreement would be extraordinary indeed, in form, if in- 
 tended as the common and usual contract for board and lodgings. 
 It gave different rights from those belonging to an ordinary boarder 
 and lodger. It entitled the tenant to exclusive possession and would 
 have justified him in the use of force to exclude any one whom he 
 might choose to deem an intruder. This instrument divested the pro- 
 prietor of the legal custody and control of the rooms. ^^° 
 
 § 25. Mortgagor in possession. — In determining the exact status 
 of a mortgagor who is allowed to remain in possession of the mort- 
 gaged premises prior to a breach of the condition of the mortgage, 
 it has been found convenient and natural to liken him to a tenant 
 at will to the mortgagee. However, the actual situation is that tlie 
 mortgagor is entitled to destroy the estate granted to the mortgagee 
 by performing the condition of the mortgage, and that by failure 
 of the mortgagor to perform the condition prescribed, an indefeasible 
 legal estate vests in the mortgagee, subject only to a right of redemp- 
 tion in equity. Such rights and liabilities are foreign to the rela- 
 tion of landlord and tenant. So that it was aptly remarked by Lord 
 Mansfield that "A mortgagor is not properly a tenant at will to the 
 mortgagee for he is not to pay him rent. He is so only quodam 
 modo . . . Where the court or counsel call a mortgagor a tenant 
 at will, it is barely a comparison. He is like a tenant at will."^®^ 
 This was said in regard to mortgages where the legal title vested in 
 the mortgagee and the mortgagor had merely a right to defeat it 
 by performance according to the tenor of the instrument. With 
 greater reason it follows that the same is true of a mortgage 
 which merely gives the mortgagee a lien on the property as security 
 
 '•"Porter v. Merrill, 124 Mass. 534. '*' Moss v. Gallimore. 1 Douglas 
 
 ''° Oliver v. Moore, 131 N. Y. 589, 279, 282; Birch v. Wright. 1 Term. 
 
 42 St. Rep. 949, affirming 53 Hun R. 378, 383; Vance v. Johnson. 10 
 
 472, 25 St. Rep. 37, 6 N. Y. S. 413. Humph. (Tenn.) 213, 220.
 
 § 26] CREATIOX OF THE RELATION. 32 
 
 for his debt; in that case, also, the possession of a mortgagor is not 
 in the capacity of tenant to his mortgagee. "The relation of land- 
 lord and tenant may exist between mortgagee and mortgagor, or one 
 claiming under the latter, but this relation is not presumed to exist 
 between such parties and does not grow out of the relations of mort- 
 gagor and mortgagee. If between such parties the relation of land- 
 lord and tenant does exist, it must be proved."^'^" In case a mortgagor 
 was not a tenant during his previous occupation of the premises he 
 does not become one by holding over after the mortgage has been 
 foreclosed and the property sold.^^^ It is permissible, however, for 
 a mortgagor to agree to become the tenant of any purchaser at fore- 
 closure sale, and likewise it can be stipulated that any purchaser 
 shall become the landlord of the mortgagor; in such cases as soon 
 as the other party assents a tenancy is created.^ ^* Where the mort- 
 gagor has put a tenant into possession after the execution of the mort- 
 gage and the mortgagee enters on default, the acceptance of rent 
 from such tenant by the mortgagee will give rise to an estoppel and 
 create a tenancy from year to year.^®^ Upon the entry of a mortgagee 
 for condition broken he has the right to treat a lessee of the mort- 
 gagorj whose lease is subsequent to the mortgage, as a trespasser. 
 But the acceptance of rent by a mortgagee, after entry, from the 
 tenant of the mortgagor creates the relation of landlord and tenant 
 by the doctrine of estoppel. The tenancy thus created will not be for 
 the whole term of the original lease but from year to year merely.^^® 
 The question whether a mortgagor can be regarded as a tenant 
 of his mortgagee often arises in regard to the mode of evicting him 
 from the mortgaged premises. It has been held that summary pro- 
 ceedings under a statute apply only to landlord and tenant, and 
 cannot be sustained against a mortgagor who holds over after a sale 
 of the property. 
 
 § 26. Contracts for mortgagee or for letting. — In many cases 
 where the real nature of a transaction is a mortgage, the actual con- 
 
 "= Morse v. Stafford, 95 Me. 31, 49 566; and Thunder v. Belcher, 3 East 
 
 Atl. 45. 449. Contra, Souders v. Vansickle, 
 
 ^^ Sawyer v. Hanson, 24 Me. 542; 8 N. J. L. 313, where the decision 
 
 McMillan v. Love, 72 N. Car. 18. rested on a statute abolishing at- 
 
 "* Brewster v. McNab, 36 S. Car. tornment. 
 274, 15 S. E. 233; Griffith v. Brack- ^'^ Gartside v. Outley, 58 111. 210; 
 
 man, 97 Tenn. 387, 37 S. W. 273. Doe v. Bucknell, 8 C. & P. 566; 
 
 "=Gartside v. Outley, 58 111. 210, Thunder v. Belcher, 3 East 449. 
 citing Doe v. Bucknell, 8 C. & P.
 
 33 SIMILAR CONTRACTUAL RELATIONS. [§ 26 
 
 tract is disguised by collateral agreements. Thus where an absolute 
 deed and a contract of defeasance or to reconvey were executed, and 
 the consideration was a loan of money, the fact that the grantee 
 at the same time gave the grantor a lease of the premises did not pre- 
 Tent the transaction from constituting a mortgage.^^^ After a mort- 
 gagee had commenced a suit of foreclosure, he received an absolute 
 conveyance of the mortgaged premises from the mortgagor and at the 
 same time gave back a lease of the premises in which it was stipu- 
 lated that the lessor should at the expiration of the lease sell the 
 premises to the lessee, in case he should tender a certain sum — which 
 was the amount of the mortgage — and demand a deed, the transac- 
 tion made the deed a mortgage and the instrument called a lease 
 was not such at all but a contract of defeasance. ^^"^ So in another 
 case a lessee purchased part of the demised premises but the pur- 
 chase money was in part advanced by a third person and the title 
 deed was taken in his name. The relation of landlord and tenant 
 did not arise between the holder of the legal title and the occupant. 
 The relation between the purchaser and the person advancing the 
 money was similar to that of mortgagor and mortgagee and the former 
 tenant did not continue as tenant to the transferee of the legal title.^*^ 
 But where a landowner agreed in consideration of a cash payment to 
 let to another a parcel of land, and to prepare the soil and sow it 
 with grain, authorizing the other to enter and harvest the crop, this 
 was held to be a lease and not a mortgage.^"" 
 
 The maintenance of a suit in equity by an occupant of premises 
 against the owner of the fee to have the latter declared a mortgagee 
 rebuts any presumption of a tenancy between the parties. Tliere 
 was a positive denial of the absolute rights claimed by the holder 
 of the legal title and an assertion that his deed of title was a mort- 
 gage only, which the claimant was ready to redeem. So no ground 
 was furnished on which to raise a legal inference that the claimant 
 held the land under the title of his opponent and with his con- 
 currence and permission. Such are not the facts and circumstances 
 which usually attend a permissive holding, and this is the best test 
 by which to try a legal presumption. They rather appear to have 
 been inconsistent with the supposed tenancy. The equity proceeding 
 
 "' Plato V. Roe, 14 Wis. 453. "° Mims v. Chandler, 21 S. Car. 
 
 i^Ragan v. Simpson, 27 Wis. 355; 480, 493. 
 Nightingale v. Barens, 47 Wis. 389, ''^ Stadden v. Hazzard, 34 Mich. 
 2 N. W. 767; Davis v. Hemenway, 27 76. 
 Vt. 589; Roach v. Cosine, 9 Wend. 
 (N. Y.) 227. 
 
 Jones L. & T.— 3
 
 §§ 2T, 28] CREATION OP THE RELATION. C i- 
 
 had assumed for the claimant the attitude of a mortgagor offering 
 to redeem the mortgaged premises; and he maintained himself in it 
 until the close of the controversy. So it was impossible, in the face 
 of this fact, to infer the relation of landlord and tenant between 
 the parties during that period. The law sometimes implies contracts 
 but never where there is an express contract, or facts exist wholly 
 inconsistent with the contract to be implied.^^^ 
 
 § 27. A mortgagee in possession is not a tenant of his mortgagor, 
 and the latter cannot recover rent after redeeming. Though a 
 mortgagee has taken possession of the mortgaged premises, the mort- 
 gagor, after redeeming, cannot maintain assumpsit against the mort- 
 gagee for rent during the time he Avas in possession. If the mort- 
 gagee in his account of the mortgage debt credits nothing for the 
 rent during the time he was in possession and the mortgagor pays 
 the whole debt without deduction, the proper remedy is for the mort- 
 gagor to maintain an action for money had and received, to recover 
 back the amount overpaid. ^^^ But this is not inconsistent with the 
 established rule that a mortgagee in possession is accountable for 
 profits which go in reduction of the mortgage debt."^ In case a 
 valid lease is made by the mortgagor and the mortgagee acquires 
 possession as assignee of such lease, he then becomes a tenant of the 
 mortgagor. But if the mortgagor puts the mortgagee in actual pos- 
 session and occupation of the premises, and relinquishes all right 
 whatever to them, and his tenant stands by and consents, he can 
 hardly be heard after this to say that the term still continues and the 
 mortgagee holds as tenant. Neither can an assignee of the mortgagor 
 set up such a claim. The mortgagee goes into possession as mort- 
 gagee and not as tenant, by a title paramount to that of the mort- 
 gagor. There is no pretense that he took an assignment of the term 
 or an underlease of the premises. ^^* 
 
 § 28. Tenancy between joint owners. — The general rule in regard 
 to the rights of possession by owners of undivided interests in real 
 estate, is that no one of them has the right to keep the others out of 
 any part of the common estate. Consequently one joint owner can- 
 not bring trespass or ejectment against a co-owner. Not only is this 
 
 "' Stockett V. Watkins, 2 Gill & J. 171; Ackerman v. Lyman 20 Wis. 
 
 (Md.) 326, 341. 454; Jones on Mortgages, 6th ed., 
 
 ^°='Wood V. Felton, 9 Pick. (Mass.) § 1114 et seq. 
 
 171. "* People V. Culver, 21 How. Pr. 
 
 "'Wood V. Felton, 9 Pick. (Mass.) (N. Y.) 108.
 
 35 PURCHASER IN POSSESSION. [§ 29 
 
 the rule, but such an owner is further precluded from charging one 
 in possession of the entire premises as tenant and holding him for 
 rent. "The relation of landlord and tenant does not exist between 
 one tenant in common and the other tenants in common where the one 
 occupies the common estate in his own right and without contract, 
 express or implied, with his co-tenants."^" ^ Mere occupancy of the en- 
 tire tenement by one co-tenant does not make him liable for rent to 
 the other. ^"^ The relation of landlord and tenant may, however, be 
 created between co-tenants by an actual agreement to that effect be- 
 tween them,^''^ and when the relation of landlord and tenant is thus 
 created, the tenant co-owner, if he remain in exclusive possession 
 after the term for which his co-tenant's share was let to him, will be 
 held to do so in his character of tenant, and the same rules will apply 
 as in the case of any other tenant holding over.^"^ Thus an actual 
 agreement to pay rent was implied between co-tenants where there 
 had been a previous renting and an arrangement for partition was 
 delayed so that one continued in occupation of tlie entire estate.^®^ 
 
 VI. Purchaser in Possession. 
 
 § 29. The occupation of land under a contract for purchase does 
 not make the occupant a tenant of the grantor during the time al- 
 lowed for the completion of the purchase even though the contract 
 for sale is not carried out. Therefore, no promise to pay rent for 
 the use of the premises during such period will be implied, and the 
 statutory process for a landlord to recover possession cannot be main- 
 tained. -°" "W^liile the defendant occupied under a valid contract 
 
 "'> Bird v. Earle, 15 Pla. 447, 453. Storrs, 3 Conn. 203. Georgia: 
 
 ^"''Chapin v. Foss, 75 111. 280; Bo- Barnes v. Shinholster, 14 Ga. 131; 
 ley V. Barutio, 24 111. App. 515; ■ Griffith v. Collins, 116 Ga. 420, 42 S. 
 
 Huffman v. Pollard, 6 Ky. L. R. 519. E. 743. Indiana: Newby v. Vestal, 
 
 ^" Shouse v. Krusor, 24 Mo. App. 6 Ind. 412; Miles v. Elkin, 10 Ind. 
 
 279; Hubbard v. Quisenberry, 32 329; Kratemayer v. Brink, 17 Ind. 
 
 Mo. App. 459. 509; Fall v. Hazelrigg, 45 Ind. 576. 
 
 "'O'Connor v. Delaney, 53 Minn. Kansas: Garvin v. Jennerson, 20 
 
 247, 54 N. W. 1108; Chapin v. Foss, Kan. 371. Kentucky: Richmond 
 
 75 111. 280. &c. Tp. Co. v. Rogers, 7 Bush 532. 
 
 ""Leitch v. Boyington, 84 111. 179. Maine: Lapham v. Norton, 71 Me. 
 
 =°'' Alabama: Tucker v. Adams, 52 83. Maryland: Hoffar v. Dement, 5 
 
 Ala. 254. Arkansas: Walters v. Gill 132. Massachusetts: Dunham 
 
 Meyer, 39 Ark. 560; Mason v. De- v. Townsend, 110 Mass. 440. Mis- 
 
 lancy, 44 Ark. 444. California: souri: Glascock v. Robards. 14 Mo. 
 
 Blum V. Robertson, 24 Cal. 127, 145. 350. New Jersey: Den v. "West- 
 
 Connecticut: Vandenheuvel v. brook, 15 N. J. L. 371; Brewer v.
 
 §29] 
 
 CREATION OF THE RELATION. 
 
 36 
 
 for the sale of the property to him, he could not be considered as a 
 tenant; the parties could not convert the contract for purchase into 
 a tenancy, nor while the former was pending infer another of a 
 different nature/'^"^ The relation of landlord and tenant subsists 
 by virtue of an agreement, express or implied. The relation of vendor 
 and vendee is wholly different in its incidents and in the rights 
 and liabilities of the parties. If the vendor has parted with the legal 
 title, the vendee could not by any possibility be treated as his tenant. 
 If he has not parted with the legal title, treating the vendee as his 
 tenant, liable for rent, would operate as a destruction of the con- 
 tract of purchase and the substitution of a different contract the 
 parties did not make. Nor can it be said that the vendor, because 
 of the vendee's default in payment of the purchase money, has an 
 election to rescind the contract of purchase and treat the vendee as 
 a tenant. It requires the concurring minds of both parties to rescind 
 as well as to make a contract.-"^ The vendor has three remedies, — 
 he may maintain ejectment, sue at law for the purchase money, or 
 enforce his lien for the purchase money in equity. -°^ 
 
 Where an occupant of land had agreed to purchase it and had paid 
 the purchase money, it was declared to be manifestly unjust to allow 
 the owner to recover rent for it in the event of his failure to execute 
 a conveyance.^"* But in the event of the recovery back of the pur- 
 chase money because of the destruction of the premises by fire, the 
 vendor was allowed to recover rent for the time the vendee was in 
 occupation.^"^ 
 
 Craig, 18 N. J. L. 214. New York: 
 Jackson v. Kingsley, 17 Johns. 158; 
 Kellogg v, Kellogg, 6 Barb. 116; 
 Burkhart v. Tucker, 27 Misc. 724, 59 
 N. Y. 711; Moulton v. Norton, 5 
 Barb. 286; People v. Bigelow, 11 
 How. Pr. 84; Kenada v. Gardner, 3 
 Barb. 589; Livingston v. Tanner, 14 
 N. Y. 64; Oakley v. Schoonmaker, 15 
 Wend. 226. North Carolina: Riley 
 v. Jordan, 75 N. Car. 180; McCombs 
 V. Wallace, 66 N. Car. 481. Penn- 
 sylvania: Hill V. Hill, 43 Pa. St. 528. 
 Tennessee: Chilton v. Niblett, 3 
 Humph. 404; Gudger v. Barnes, 4 
 Heisk. 570. Texas: Brown v. En- 
 gel, 2 Tex. App. Cas., § 103. Wis- 
 consin: Nightingale v. Baren, 47 
 Wis. 389, 2 N. W. 767; Diggle v. 
 
 Boulden, 48 Wis. 477, 485, 4 N. W. 
 678; McCormick v. Herndon, 86 Wis. 
 449, 56 N. W. 1097. England: 
 Kirtland v. Pounsett, 2 Taunt. 145. 
 
 ="' Howard v. Shaw, 8 M. & W. 
 118-122, per Abinger, C. B. 
 
 =°' Tucker v. Adams, 52 Ala. 254. 
 
 =°^ Haley v. Bennett, 5 Port. (Ala.) 
 452; Duval v. McLoskey, 1 Ala. 708. 
 
 =« Little v. Pearson, 7 Pick. 
 (Mass.) 301. 
 
 "^^ Gould V. Thompson, 4 Met. 
 (Mass.) 224. Here the court dealt 
 with a case where the vendee had 
 paid the purchase money without 
 getting a conveyance, had occupied 
 the premises for four days when 
 they burned, and had then recov- 
 ered back the purchase money. It
 
 37 PURCHASER IN POSSESSION. [§ 30 
 
 When one purchases land or makes an agreement to do so, and 
 enters into possession in pursuance of the agreement, his entry and 
 possession are not as tenant, but as owner. If the defendant shows he 
 is in under a contract to purchase he rebuts the idea of a tenancy, 
 and a different agreement cannot be inferred from that the parties 
 have deliberately entered into. The fact that the agreement to pur- 
 chase is by parol can make no difference. The agreement is proved 
 not for the purpose of being enforced, but only to rebut the idea of a 
 tenancy.^"® A purchaser entered under a parol agreement for pur- 
 chase and occupied ten years, making extensive improvements, 
 but the contract had not been carried out. He was not liable to the 
 owner in use and occupation during this period. There was no agree- 
 ment to pay rent, and from the facts it could be inferred that the 
 parties did not contemplate the payment of rent. There seems to 
 have been no demand on the purchaser to complete his purchase.-"^ 
 
 While it seems to be well settled that a person is not liable for rent, 
 where he has taken the possession and occupied the premises under 
 a contract of purchase, such rule only prevails where the contract is 
 not absolutely null and void. If the grantor has no power to make 
 an executory contract for the sale of the premises, or to convey any 
 title thereto, the entire transaction is absolutely and unconditionally 
 null and void. "The parties to the pretended contract are to be 
 charged with a knowledge of the law and, consequently, it is to be 
 presumed that the vendee took the possession and occupied the prem- 
 ises with full knowledge that the entire transaction was illegal and 
 void." So the court were clearly of opinion that the vendee was 
 liable for the use and occupation of the premises.-"^ 
 
 § 30. In the absence of a^eement a purchaser's right to possession 
 is not greater than that of a tenant at will. In describing the inter- 
 est of an intending purchaser in possession under an agreement for a 
 sale it is not unusual to speak of him as a tenant at will of the ven- 
 dor.'^*^ No demise is created by such a contract, and the possession is 
 
 was held that he was liable to pay payment of rent was necessary to 
 
 rent for the four days' occupation. create the relation of landlord and 
 
 ="« Mason v. Delancy, 44 Ark. 444; tenant. 
 
 Carpenter v. United States, 17 Wall. *' Bishop v. Clark, 82 Me. 532, 20 
 
 (U. S.) 489. On similar facts in Atl. 88. 
 
 Moshier v. Reding, 12 Me. 478, 482, "■"' Mattox v. Hightshue, 39 Ind. 95. 
 
 the court held that there was a ="" McCombs v. Wallace, 66 N. Car. 
 
 tenancy between vendor and vendee, 481; Towne v. Butterfield, 97 Mass. 
 
 relying on the negative reasons that 105; Meadows v. Hopkins, Meigs 
 
 neither express words of demise nor (Tenn.) 181; Chilton v. Niblett, 3
 
 § 30] CREATIOX OF THE RELATIOX. 38 
 
 held only b}^ permission of the owner. There is no title by which the 
 purchaser can hold against the owner for any fixed or definite length 
 of time. He is, therefore, la mere tenant at will,^^** in contradistinc- 
 tion from one who has a fixed right of possession or term in the land. 
 But it has been explained that though such a purchaser's right is not 
 greater than that of a tenant at will, and though he is therefore often 
 called a tenant at will, yet he is not to be regarded as a lessee for all 
 purposes, and that, if the negotiation for the purchase of the land 
 fails, he is not necessarily to be held liable on an implied assumpsit 
 for use and occupation, or liable to the special summary process pro- 
 vided by statute for the recovery of land which is held over by a lessee 
 after the term of his lease.^" To designate a purchaser in possession 
 a tenant at will is true in a restricted sense only. A purchaser is a 
 tenant at will just as a mortgagor after condition broken is a 
 tenant at will of the mortgagee. The mortgagor is not a tenant within 
 the meaning of the unlawful detainer act, however, and neither is a 
 purchaser who has been placed in possession before a transfer of the 
 legal title.212 
 
 From the time of default in the contract for sale, the relation of 
 the parties becomes that of landlord and tenant at will or at suffer- 
 ance ;^^^ and it has been held that, after such default, an implied 
 promise on the part of the occupant to pay rent will arise : "But what 
 is the relation of the parties," asks Lord Abinger, "when the contract 
 of sale has gone off? The defendant remains in possession with the 
 consent of the landlord, but without any title to or contract to pur- 
 chase the land itself. Under those circumstances, he is a tenant at 
 will; and if the occupation is beneficial to him, that is sufficient to 
 imply a contract to pay a reasonable sum by way of compensation for 
 such occupation."^ ^* If the vendee refuses to comply with the con- 
 tract, the vendor may treat him as a tenant at will, and the vendee 
 thereby becomes liable to the vendor for the reasonable value of the 
 
 Humph. (Tenn.) 404; James v. Pat- ^' Lyon v. Cunningham, 136 Mass. 
 
 terson, 1 Swan (Tenn.) 309; Doe v. 532; Dakin v. Allen, 8 Cush. (Mass.) 
 
 Chamberlaine, 5 M. & W. 14; Doe 33; Larned v. Clarke, 8 Cush. 
 
 V. Miller, 5 C. & P. 595. (Mass.) 29; Dunham v. Townsend, 
 
 -^^ Foley V. Wyeth, 2 Allen 110 Mass. 440; Kiernan v. Linnehan, 
 
 (Mass.) 131, 134, per Merrick, J. 151 Mass. 543, 24 N. E. 907. 
 
 There is an early dictum that a -" Mason v. Delancy, 44 Ark. 444. 
 
 vendee in possession with a bond ^" Uhl v. Pence, 11 Neb. 316, 9 N. 
 
 for title had an estate at will or by W. 41. 
 
 license. Proprietors of No. 6 v. '^* Howard v. Shaw, 8 M. & W. 118. 
 McFarland, 12 Mass. 324.
 
 39 PURCHASER IN POSSESSION. [§ 31 
 
 -use of the premises for the time during which he continues in posses- 
 sion after he abandons the agreement.^^^ 
 
 Moreover, it is valid and enforcible to regulate the rights of a pur- 
 chaser to possession prior to the transfer of the legal title, and where 
 it is contemplated that the deed may not be called for until after the 
 expiration of months or even years, this is a natural and wise precau- 
 tion. In a case where this question arose it was held the agreement 
 not only regulated the terms of the sale, but also fixed the rights of 
 the parties as to possession during the continuance of the agreement, 
 and that the language was sufficiently clear and precise to give the 
 Tight of possession to the vendee. In construing the sealed instru- 
 ment by which this right was conferred, Hammond, J., speaking for 
 the court, said: "It is not simply an executory promise to give pos- 
 session, but it is a present grant to the plaintiff of the possession, to 
 continue during the existence of the agreement. The right given is 
 not an estate at will, but a much greater estate, and until it is lost 
 by the default of the plaintiff, or by the expiration or annulment of 
 the agreement by lapse of reasonable time or otherwise, she will con- 
 tinue to hold it. . . . By the fair interpretation of the agreement, 
 the plaintiff was entitled to reap the profits of the income of the 
 estate either by personal occupation, or by leasing the same to an- 
 other.''2i6 
 
 § 31. Modifying circumstances. — When a purchaser goes into oc- 
 cupation of land before the sale is completed by a transfer of the 
 legal title, the generally accepted principle is that such occupant does 
 not stand in the relation of a tenant to the vendor. The principle is 
 equally applicable where the prospective purchaser has been tenant of 
 the land just previous to the time when the contract for sale is to be 
 carried out;^" and where the vendor makes a valid transfer of his title 
 to a third party. The vendee does not thereby become a tenant to the 
 person acquiring the legal title by such transfer.^^ Moreover, it 
 does not alter the relation of the parties for them to call tlie purchase 
 money rent.^^® If the agreement contemplated an absolute sale, the 
 
 ^"Sievers v. Brown, 34 Ore. 454, (N. Y.) 375. Compare Moore v. 
 56 Pac. 171; Smith v. Wooding, 20 Smith, 56 N. J. L. 446, 29 Atl. 159. 
 Ala. 324; Osgood v. Dewey, 13 where a vendee under such circum- 
 Johns. (N. Y.) 240; Dwight v. Cut- stances was called a tenant at sut- 
 ler, 3 Mich. 566, 64 Am. Dec. 105; ferance. 
 Hogsett v. Ellis, 17 Mich. 351. =" Johnson v. Hauser, 82 N. Car. 
 
 =" Fitch V. Windram, 184 Mass. 
 
 375. 
 
 •68, 67 N. E. 965. *"* Quertermous v. Hatfield, 54 
 
 ''"Arey v. Imson, 3 Alb. L. Jour. Ark. 16, 14 S. W. 1096; Watson v.
 
 §' 32] CREATION OF THE RELATION. 40 
 
 fact that the first installment of purchase money was called rent by 
 the parties would not impart a different condition into the contract 
 and change the relation of vendor and vendee into that of landlord 
 and tenant. Calling the purchase money rent would not make it 
 such."o The fact that a note recited that it was given for rent 
 would not preclude the parties from proving that it was not in fact 
 given for that purpose."^ However, if the money is paid as rent the 
 relation of landlord and tenant will arise even though the amounts 
 paid are to be credited on a purchase note on a certain contingency,^^'^ 
 or are called interest on a bond securing the purchase price which is- 
 to be paid by the tenant,^^^ 
 
 It is admissible to show, on behalf of a person attaching for rent,, 
 that originally there was a contract for the sale of the premises, but 
 that before other rights accrued this was modified by an agreement 
 that the vendee, in default of paying the purchase money, should pay 
 rent.2^* After default by a vendee of land to pay the purchase money,, 
 the vendor may, by contract, become landlord of the vendee so as to 
 avail himself of the landlord's lien given by statute, and the rent 
 may still go as a credit upon the purchase price agreed to be paid for 
 the land.^^^ Such a change in the relationship could not be effected 
 to the detriment of third persons; as where a landlord asserting a 
 lien comes into competition with a mortgagee of the tenant's crop. 
 The landlord would be postponed if, at the time the mortgagee's rights 
 attached, he stood in the relation of vendor to the occupant who sub- 
 sequently became his tenant.^"*' 
 
 § 32. That a vendee in possession is entitled to emblements was 
 
 the conclusion reached by the New York Court of Appeals in an 
 elaborately considered case. The decision of the Supreme Court be- 
 low was reversed by this holding. The action was in the nature of 
 replevin to recover a crop of oats planted by the vendee while in pos- 
 session, and subsequently harvested by the vendor. As a ground for 
 sustaining a non-suit the Supreme Court said: "The contract for 
 
 Pugh, 51 Ark. 218, 10 S. W. 493; -^ White v. Livingston, 10 Cush. 
 
 Blitch V. Edwards, 96 Ga. 606, 24 S. (Mass.) 259. 
 
 E. 147; Sackett v. Barnum, 22 -^Spears v. Robinson, 71 Miss. 
 
 Wend. (N. Y.) 605. 774, 15 So. Ill; Thornton v. Strauss, 
 
 -" Quertermous v. Hatfield, 54 79 Ala. 164. 
 
 Ark. 16, 14 S. W. 1096. ^^ Jones v. Jones, 117 N. Car. 254, 
 
 =^ Watson v. Pugh, 51 Ark. 218, 10 23 S. E. 214. 
 
 S. W. 493. "" Wilczinski v. Lick, 68 Miss. 596, 
 
 ^= Nobles v. McCarty, 61 Miss. 10 So. 73- 
 456.
 
 41 PURCHASER IX POSSESSION". [§ SZ 
 
 the sale of the farm being by parol, was void by the statute. There 
 was no contract for the letting of the farm and the relation of land- 
 lord and tenant did not exist. , . . There are some dicta to the 
 effect that an entry upon premises, under a parol contract to purchase, 
 and an occupancy will establish the relation of landlord and tenant 
 and that a recovery for use and occupation can be had, and there are 
 some cases in which the action has been maintained. It will, how- 
 ever, be found on examining the cases, that the occupancy has been, 
 continued after the parties had abandoned the contract to purchase, 
 or there have been circumstances from which an inference could be 
 fairly drawn that the parties had agreed that rent should be paid.'* 
 The oats while growing were a part of the realty ; the remedy of 
 the party disseised is to recover the possession and then the mesne 
 profits. In this case, however, the vendee had no legal title. His rem- 
 edy was in a court of equity for a specific performance.--^ The 
 ground on which this decision was reversed was that the vendee in. 
 possession was a tenant at will, and therefore entitled to the oats as 
 emblements. A promise to pay rent could not be implied in such a 
 case, because the vendee entered under a different contract, but, never- 
 theless, he was a tenant at will. One of the arguments in favor of this 
 conclusion was that a vendee in such a position has the right to in- 
 gress and egress to remove his effects.--^ Expressions to be found in 
 the authorities to the effect that one entering under a contract of 
 purchase does not stand in the relation of tenant to the vendor, have 
 reference to the question whether an undertaking to pay rent can be 
 implied. In a further statement of the reasons for the decision, 
 Rapallo, J., speaking for himself and two other members of the court, 
 said : "But when a purchaser of a farm enters upon it under an ex- 
 press agreement of the vendor that he may occupy and work it until 
 the vendor is prepared to convey, and the agreement to sell is merely 
 by parol, and the question arises with reference to the rights of such 
 an occupant, in case of a refusal by the vendor to perform, and a 
 termination by him of the occupancy, without any default on the part 
 of the occupant, there is strong reason for according to such occu- 
 pant the rights of a tenant at will. The permission to occupy un- 
 accompanied by any contract of sale would clearly create a ten- 
 ancy at will. The effect of the invalidity of the contract of sale 
 is to reduce the right of the vendee to that of a mere licensee, and to 
 
 ==' Harris v. Frink, 2 Lans. (N. Rich. L. (S. Car.) 542; Carson v. 
 
 Y.) 35. Baiter, 4 Dev. (N. Car.) 220; Lowry 
 
 ^'Love v. Edmonston, 1 Ired. L. v. Tew, 3 Barb. Ch. (N. Y.) 407, 
 
 (N. Car.) 152; Jones v. Jones, 2 414.
 
 § 33] CREATIOX OF THE RELATION. 43 
 
 enable the vendor to revoke the license at his pleasure. AVhen he ex- 
 ercises that right there is no injustice in placing him in the same po- 
 sition as if the contract of sale which he repudiates had not been 
 made.""^ 
 
 § 33. Where a vendor of land continues in possession, either by an 
 agreement in the contract of sale or collateral thereto, his right usu- 
 ally takes effect as a reservation, and in that case the relation of land- 
 lord and tenant does not exist between the parties.^^" However, the 
 parties may, if they wish, deliver the possession of the premises to 
 the grantee and have him lease them back to the grantor and, if that 
 is done, the relation of landlord and tenant would exist between 
 them ; and unlawful detainer would lie against the grantor in case he 
 refused to deliver up the possession according to his agreement. The 
 same arrangement could be made in a mortgage, and the existence 
 of a tenancy would in no way impair the grantor's right of redemp- 
 tion.-^^ After a delivery of possession to a vendee, the premises 
 were, in one case, returned to the vendor under the mistaken belief 
 that a suit for specific performance to compel a conveyance could not 
 be maintained, "\^^len the equity suit was finally decided against the 
 vendor it was held that a sub-vendee of the premises could maintain 
 an action for use and occupation against the vendor for such time as 
 he had occupied after the execution of the contract for sale. Baron 
 Graham said in the course of his concurring opinion : "Although in 
 raising an implied assumpsit, however, we may or may not be doing 
 what was not in the contemplation of the parties at the moment, that 
 should not be the only consideration with us in determining whether 
 this species of action can be maintained or not." The action of use 
 and occupation being the only remedy available against the vendor, 
 the court were inclined to a liberal construction for the purpose of 
 holding the vendor liable.-^^ 
 
 After the period for which the vendor was to occupy has elapsed, 
 he becomes a tenant at will or at sufferance.-^ ^ 
 
 ^ Harris v. Frink, 49 N. Y. 24, "■"■ Hull v. Vaughan, 6 Price 157. 
 
 10 Am. R. 318, reversing 2 Lans. 35. ^^ Hyatt v. Wood, 4 Johns. (N. Y.) 
 
 "° Goldsberry v. Bishop, 2 Duv. 150; Cadwallader v. Lovece, 10 Tex. 
 (Ky.) 143; Hoffman v. Clark, 63 Civ. App. 1, 29 S. W. 666, 917. Corn- 
 Mich. 175, 29 N. W. 695; Sims v. pare Jackson v. Aldrich, 13 Johns. 
 Humphrey, 4 Denio (N. Y.) 185; (N. Y.) 106, holding a second con- 
 McCombs V. Wallace, 66 N. Car. veyance cut off the right of posses- 
 481. sion of the original vendor, whO 
 
 =^» Sexton v. Hull, 45 Mo. App. held as tenant at will. 
 339. Compare Prichard v. Tabor, 
 104 Ga. 64, 30 S. E. 415.
 
 43 PURCHASER IN POSSESSIOX. [§ 34 
 
 § 34. The character of an occupancy may be determined by a con- 
 dition subsequent; so that the happening of a future event will de- 
 termine whether the occupant of land holds in the capacity of a ten- 
 ant or as a purchaser.-^* An election may be given one party to choose 
 whether the relationship shall be that of landlord and tenant or of 
 vendor and vendee.^^^ On a contract for the sale of lands, the parties 
 may, by express stipulation, agree that on default lacing made in the 
 payment of the purchase money, the contract shall be treated as a 
 lease, the option being reserved to the purchaser in the first instance, 
 and passing to the vendor on his failure to elect. When an election 
 is made to treat it as a lease, it relates back to the time when the 
 contract was made, and creates the relation of landlord and tenant 
 from that day with all its incidents. -^*^ 
 
 On the other hand, where land has been leased for a year with an 
 option to lessee to purchase at any time, the lease is terminated as 
 soon as the tenant exercises his option to buy, and he can then enforce 
 specific performance.^^^ Under a lease containing an option to pur- 
 chase, the relation of lessor and lessee and the liability of the lessee 
 for rent continues until a tender or offer to pay the purchase money 
 is made.^^^ Where a lease gave the tenant an option to purchase a 
 part of the land occupied at the end of the tenancy, price and bound- 
 ary to be agreed upon later, it was held that the relation of landlord 
 and tenant existed and title was not vested in lessee.^ ^® 
 
 The existence of an option in one party to a contract does not in- 
 
 ^ Arkansas: Block v. Smith, 61 would seem that the contingency 
 
 Ark. 266, 32 S. W. 1070. Mississippi: had happened here which made the 
 
 Bacon v. Howell, 60 Miss. 362; Vick occupant a tenant and not a pur- 
 
 V. Ayres, 56 Miss. 670; Stinson v. chaser. Compare Hodgen v. Gut- 
 
 Dousman, 20 How. (U. S.) 461. tery, 58 111. 431. 
 
 Florida: Blanchard v. Raines, 20 ='= Wilkinson v. Ropes, 74 Ala, 
 
 Fla. 467. Georgia: Barnes v. Shin- 140; Collins v. Whigham, 58 Ala. 
 
 holster, 14 Ga. 131. North Carolina: 438; Dunn v. Tillery, 79 N. Car. 
 
 Hughes V. Mason, 84 N. Car. 472, 497. 
 
 holding the contingency had not ="' Drum v. Harrison, 83 Ala. 388. 
 
 happened. In Green v. Dietrich, 114 3 So. 769; Collins v. Whigham, 58 
 
 111. 636, a person was in possession Ala. 438. 
 
 of land under a contract to buy ="' Newell's Appeal. 100 Pa. St 
 
 and agreed to pay reasonable rent 513; Knerr v. Bradley, 105 Pa. St. 
 
 In case the vendor could not make a 190. 
 
 good title. The vendee was held not =^' Courne v. Hewes, 124 Cal. 244. 
 
 to be a tenant, so that the doctrine 56 Pac. 1032. 
 
 of estoppel could not prevent him «° Collier v. Sharpe. 4 Ky. L. R. 
 
 from buying in an outstanding title 351. Compare Howard v. Hill, 4 
 
 to defeat that of the landlord. It Ky. L. R. 719.
 
 §' 35] CREATION OF THE EELATION. 44 
 
 crease the rights of the other party. Thus, wliere a purchaser of land 
 had an option to hold it as tenant but indicated his election to buy- 
 by tendering the purchase price, no refusal by the owner could place 
 the vendee in the attitude of a tenant. In the absence of anything 
 to show such an election, the occupant would continue to hold as 
 purchaser.^*^ Still a tenant's right to buy the premises at the end 
 of a term would not change the relation of the parties during its 
 continuance, and the landlord could oust the tenant for non-pay- 
 ment of rent.^*^ 
 
 § 35. Proof of chang^e in relationship. — The point was made in 
 one case that in order to change his relation to a tenant, the vendee 
 must have used the actual ceremony of going out of possession as 
 purchaser, and returning as lessee. But the court thought that this 
 was unnecessary. If the vendee unconditionally surrendered his con- 
 tract and his rights under it, and agreed to hold under a new con- 
 tract of lease, that brought the case under the landlord and tenant 
 act.^*^ By executing the rent obligation, the vendees acknowledged 
 the vendor's right to possession and thereby became his tenants, with 
 all the rights of landlord and tenant subsisting between them. This 
 had the same legal effect as if the vendor had first evicted them and 
 then leased the premises to them ; and his right to lease to them was 
 as clear as if they had never contracted to purchase. ^*^ Where the 
 vendee enters under a bond for title and has executed notes for the 
 purchase money which are held by the vendor, the surrender of bond 
 and notes, by the holders to the maker and obligor respectively, has 
 been repeatedly declared to be such a renunciation as would annul 
 the contract of purchase.-** In order that a vendee may, by parol 
 agreement, rescind a contract of purchase and become the tenant of 
 the vendor, the rule is that the vendor must show an unconditional 
 surrender and that the acts and conduct relied upon as evidence of 
 abandonment must be "positive, unequivocal and inconsistent with 
 the contract." It is the province of the trial judge to instruct the 
 Jury as to what would constitute a renunciation of the contract and 
 
 '^Griffith V. Collins, 116 Ga. 420, 321; McDougald v. Graham, 75 N. 
 
 42 S. E. 743. Car. 310; Falls v. Carpenter, 1 Dev. 
 
 =" Clifford V. Gressinger, 96 Ga. & Bat. Eq. (N. Car.) 237; Holden 
 
 789, 22 S. E. 399. v. Purefoy, 108 N. Car. 163, 12 S. E. 
 
 ^ Riley v. Jordan, 75 N. Car. 180. 848; Fortune v. Watkins, 94 N. Car. 
 
 =« Thornton v. Strauss, 79 Ala. 304; Taylor v. Taylor, 112 N. Car. 
 
 164. 27, 16 S. E. 924. 
 
 ^Faw V. Whittington, 72 N. Car.
 
 45 LEASE OR LICENSE. [§ 3G 
 
 error for him to leave the jury without a definition of what amounts 
 to an abandonment.^*^ 
 
 VII. Lease or License. 
 
 § 36. A license in the sense it is used here is an authority to do an 
 act or a series of acts on the land of another without possessing an 
 estate therein,^*® and is to be distinguished from a government per- 
 mit issuing from municipal, state or national sources. Chief Justice 
 Parker of the Massachusetts Supreme Court gave the following defi- 
 nition of such a contract: "A license is technically an authority 
 given to do some act or series of acts on the land of another, without 
 passing any estate in the land, such as a license to hunt in another's 
 land, or to cut down a certain number of trees. These are held to 
 be revocable while executory, unless a certain term is fixed, but irrev- 
 ocable when executed. Such licenses to do a particular act but 
 passing no estate, may be pleaded without deed. But licenses which 
 in their nature amount to granting an estate for ever so short a time 
 are not good without deed, and are considered as leases and must 
 always be pleaded as such. The distinction is obvious. Licenses to 
 do a particular act do not in any degree trench upon the policy of 
 the law which requires that bargains respecting the title or interest 
 in real estate shall be by deed or in writing. They amount to nothing 
 more than an excuse for the act which would otherwise be a trespass. 
 But a permanent right to hold anothei's land for a particular pur- 
 pose, and to enter upon it at all times without his consent is an im- 
 portant interest which ought not to pass without writing and is the 
 very object provided for by our statute."-" Only certain kinds of 
 parol leases are valid; easements, being incorporeal hereditaments, 
 must always be granted by deed; but the distinguishing character- 
 istic of a license of the kind under consideration is, that it may al- 
 
 ^^ Taylor v. Taylor, 112 N. Car, Coal Co. v. Peers, 150 111. 344, 37 N. 
 
 27, 16 S. E, 924; Faw v. Whitting- E. 937; Holladay v. Chicago Arc 
 
 ton, 72 N. Car. 321; Holden V. Pure- Light &c. Co., 55 111. App. 463. 
 
 foy, 108 N. Car. 163, 12 S. E. 848. Oregon: Christensen v. Pacific Coast 
 
 ^"Arkansas: Wynn v. Garland, 19 &c. Co., 26 Ore. 302, 38 Pac. 127; 
 
 Ark. 23. Colorado: Cary Hardware Stinson v. Hardy, 27 Ore. 584, 41 
 
 Co. V. McCarty, 10 Colo. App. 200, 50 Pac. 116. United States: Morgan v. 
 
 Pac. 744. Massachusetts: Cook v. United States, 14 Ct. CI. (U. S.) 
 
 Stearns, 11 Mass. 533, 537; Cheever 319. 
 
 V. Pearson, 16 Pick. (Mass.) 266, =" Cook v. Stearns, 11 Mass. 533. 
 
 273; Hamblett v. Bennett, 6 Allen To same effect see Davis v. Town- 
 
 (Mass.) 140. Illinois: Consolidated send, 10 Barb. (N. Y.) 333.
 
 § 37] CREATIOX OF THE RELATION. 4G 
 
 ways be made by parol. -*^ If a license once granted could not be 
 recalled, it would be in effect a grant of an easement, and so an 
 easement could be created by parol, which is contrary to law. There- 
 fore in many cases there has been an express recognition of the 
 doctrine that a license is no grant and that it is in its nature neces- 
 sarily revocable, and of the further doctrine that, in order to confer 
 an incorporeal right, such as an easement, an instrument under seal 
 is essential.^*^ A claim for an easement must be founded upon 
 grant by deed or writing or upon prescriptioii which supposes one; 
 for it is a permanent interest in another's land, with a right at all 
 times to enter and enjoy it.^^" 
 
 § 37. A mere license, while it remains executory, is revocable at 
 the pleasure of the licensor, is indivisible and non-assignable. ^^^ 
 
 An executory license confers such rights that from their very 
 nature it must be revocable at the pleasure of the licensor. -^^ A 
 mere license, unaccompanied with any vested interest in the real 
 estate, created by deed or other writing, and independent of any 
 title acquired by grant, prescription or adverse possession and claim 
 for a period of the Statute of Limitations, must be deemed to be, in 
 its own nature, countermandable, and essentially revocable at the will 
 of the owner of the fee."^^^ Not only is the rule well established 
 that such a license is not assignable but the law also holds it to be 
 revoked by the death of either party to the original agreement.-^* A 
 
 -'^ Cook V. Stearns, 11 Mass. 533, Lake Erie & W. R. Co. v. Kennedy, 
 
 537; Claflin v. Carpenter, 4 Met. 132 Ind. 274, 31 N. E. 943. Massa- 
 
 (Mass.) 580, 583; Wynn v. Garland, chusetts: Giles v. Simonds, 15 Gray 
 
 19 Ark 23. (Mass.) 441; Drake v. Wells, 11 
 
 -^° Wood V. Leadbitter, 13 M. & W. Allen (Mass.) 141. New York: Cros- 
 
 838; Fentiman V. Smith, 4 East 107; dale v. Lanigan, 129 N. Y. 604, 29 
 
 Rex V. Horndon, 4 M. & S. 565; N. E. 824. 
 
 Hewlins v. Shippam, 5 B. & C. 222. ==' Desloge v. Pearce, 38 Mo. 588; 
 
 =™Pierrepont v. Barnard, 6 N. Y. Woodward v. Seely, 11 111. 157; 
 
 279; Kent's Comm. 452. Kamphouse v. Gaffner, 78 111. 453; 
 
 *=^Stinson v. Hardy, 27 Ore. 584, Cook v. Stearns, 11 Mass. 533; Morse 
 
 41 Pac. 116; Holladay v. Chicago v. Copeland, 2 Gray (Mass.) 302; 
 
 Arc Light &c. Co., 55 111. App. 463. Hetfleld v. Central R. Co., 5 Dutch. 
 
 =" Arkansas: Wynn v. Garland, 19 (N. J. L.) 571; Eggleston v. New 
 
 Ark. 23. California: Potter v. Mer- York &c. R. Co., 35 Barb. (N. Y.) 
 
 cer, 53 Cal. 667. Delaware: Jackson 162; Houston v. Laffee, 46 N. H. 
 
 &c. Co. v. Philadelphia &c. R. Co., 4 505; Foster v. Browning, 4 R. I. 47. 
 
 Del. Ch. 180. Illinois: Wilmington =^^ Carleton v. Redington, 21 N. H. 
 
 Water-Power Co. v. Evans, 166 111. 291; Cowles v. Kidder, 24 N. H. 
 
 548, 46 N. E. 1083. Indiana: Wil- 364. 
 liamson v. Yingling, 93 Ind. 42;
 
 47 LEASE OR LICENSE. [§ 38 
 
 parol license to be exercised upon the land of another is a mere per- 
 sonal privilege founded on personal trust and confidence and there- 
 fore it cannot be transferred to another,-^^ A conveyance of prem- 
 ises operates as a revocation of a parol license to a third person to do 
 certain acts thereon, which had been previously given by the 
 grantor.^^*' Transferring the land to another, or even leasing it 
 without any reservation, would of itself be a countermand of the li- 
 cense.^^^ Although the licensee has entered and expended money, a 
 parol license to enter upon the lands of anotlier is revocable, unless 
 the license is connected with and necessarily incident to, the posses- 
 sion and enjoyment of property conveyed by a valid grant. The 
 correct principle is that where there is a license by parol, coupled 
 with a parol grant or pretended grant of something which is incap- 
 able of being granted otherwise than by deed, there the license is a 
 mere license; it is not incident to a valid grant, and it is therefore 
 revocable.^^^ 
 
 § 38. A parol license to cut and carry away standing timber, 
 
 when fully executed before revocation, constitutes a good defense to 
 an action of trover brought by the person giving the license, to recover 
 the value of the timber. By being executed the license becomes ir- 
 revocable.-^" A parol license to cut and carry away wood, when no 
 time is limited, must be acted upon within a reasonable time, and 
 must be considered as applying to the wood as substantially in the 
 state of growth in which it then was.^^*^ By such an oral agreement 
 no title to the land passes, and no property in the trees is acquired 
 until they are severed from the realty. The refusal of the vendor 
 to permit the vendee to enter upon the land for the purpose of cut- 
 ting the trees is merely a breach of an executory contract, the remedy 
 
 2'' Curtis v. La Grande &c. Water (Mass.) 580; Hill v. Hill, 113 Mass. 
 
 Co., 20 Ore. 34. 103; Hill v. Cutting, 113 Mass. 107; 
 
 2=" People V. Goodwin, 5 N. Y. 568; Erskine v. Plummer, 7 Me. 447, 22 
 
 Whitaker v. Cawthorne, 3 Dev. L. Am. Dec. 216; Owens v. Lewis, 46 
 
 (N. Car.) 389. Ind. 488, 15 Am. Rep. 295; Pierre- 
 
 =" Carter v. Harlan, 6 Md. 20; pont v. Barnard, 6 N. Y. 279; Ben- 
 Cook v. Stearns, 11 Mass. 533, 536. nett v. Scutt, 18 Barb. (N. Y.) 347; 
 
 ^'^'^ Richmond &c. R. Co. V. Durham Greeley v. Stilson, 27 Mich. 152; 
 
 &c. R. Co., 104 N. Car. 658, 10 S. E. Sovereign v. Ortmann, 47 Mich. 181, 
 
 659; Dillon v. Crook, 11 Bush (Ky.) 10 N. W. 191. 
 321. ^'"'Gilmore v. Wilbur, 12 Pick. 
 
 2^9 Spalding V. Archibald, 52 Mich. (Mass.) 120; Atwood v. Cobb, 16 
 
 365, 17 N. W. 940; Yale v. Seely, 15 Pick. (Mass.) 229. 
 Vt. 221; Claflin v. Carpenter, 4 Mete.
 
 §■ 39] 
 
 CEEATIOX OF THE KELATIOX. 
 
 48 
 
 for which is an action for damages.^" But where a written acknowl- 
 edgment of payment of money for the purchase of standing timber 
 definitely described the lot on which the timber stood and continued 
 as follows : "I further agree to let to said S. for eight years to cut 
 the timber off said land," it was held that this constituted a lease to 
 the purchaser of the timber.^®- 
 
 The grant of a perpetual right to enter on a tract of land and 
 cut timber for the purpose of keeping in repair the fences of another 
 tract belonging to the grantee, is within the statute of frauds and 
 must be in writing. A parol grant of such a right is but a license, 
 which is determined by a sale of the land.-^^ 
 
 § 39. A conveyance for a limited period of an interest in land 
 subordinate to the grantor's ownership in fee is a lease. "It may 
 
 be said in general terms that where the conveyance of an estate in 
 land, subordinate to that of the grantor, to the grantee, upon a valid 
 consideration, and for a definite term is made, the instrument mak- 
 ing the conveyance is a lease. Less than this might under some 
 circumstances constitute a lease ; more could not be required."^*'* Mr. 
 Justice Cooley, giving a definition in broader terms, said: "When 
 something beyond a mere temporary use of land is promised; where 
 the promise apparently is not founded on personal confidence, but 
 has reference to the ownership and occupancy of other lands and is 
 
 =" Drake v. Wells, 11 Allen 
 (Mass.) 141; Giles v. Simonds, 15 
 Gray (Mass.) 441; White v. Foster, 
 102 Mass. 375; Hill v. Hill, 113 Mass. 
 103; Hill v. Cutting, 113 Mass. 107. 
 
 ^''^Moring v. Ward, 5 Jones L. (N. 
 Car.) 272. In Crane v. Patton, 57 
 Ark. 340, a contract imposing a duty 
 to cut and remove certain timber 
 from land in return for the use of 
 the land was held to be a lease be- 
 cause it passed the right to posses- 
 sion of the land. And in Aveline v. 
 Ridenbaugh, 2 Idaho 168, wood 
 stored on certain premises was sold 
 with a privilege to the vendee to 
 store the wood for a year free and 
 to enter and remove it at any time 
 during that period. A majority of 
 the court held that this created a 
 tenancy. "The peculiar terms of the 
 
 sale . . . mean that the plain- 
 tiffs may store this wood upon de- 
 fendant's premises during the year, 
 and may at any and all times enter 
 thereon to remove the same cord by 
 cord, or in larger quantities, as their 
 business may require. This makes 
 the premises of defendant the store- 
 house for plaintiff's stock in trade. 
 This is clearly subletting." One 
 judge dissented and thought the 
 privilege a mere license. This case 
 seems to be a typical one of a sale 
 of a chattel on real estate and a 
 license to remove it. 
 
 -"^ Yeakle v. Jacob, 33 Pa. St. 376. 
 
 -"* New York &c. R. Co. v. Randall, 
 102 Ind. 453, 457, 26 N. E. 122, per 
 Niblack, J. 
 
 2-55 Morrill v. Mackman, 24 Mich. 
 279, 283.
 
 49 LEASE OR LICENSE. [§ 40 
 
 made to facilitate the use of those lands in a particular manner and 
 for an indefinite period ... the interest is an easement or a 
 leasehold and not a mere license." ^'^^ 
 
 The right to build a road across land of another, no location being 
 specified and no duration for its continuance being stated, is not a 
 lease. It would be an easement which could only be granted by deed. 
 When taking efEect as a license created by a simple instrument in 
 writing, it would not be binding on a grantee of the land, even though 
 the licensee expended money on the faith of it.^^° 
 
 "It would seem somewhat strange, at first thought, to say that a 
 parol lease of the whole land for the winter would have been good, 
 and yet that a parol agreement for a right of way would not. And 
 if the two rights were from their nature equally the proper subject 
 of a lease, such a position could not be maintained. The question 
 would then relate only to the statute of frauds. But there is another 
 obstacle to the validity of this agreement entirely independent of 
 the statute of frauds and growing out of the nature of the right 
 bargained for. It was a right of way for a specified time. This 
 was an incorporeal hereditament, which by the common law, could 
 be created only by deed."-" 
 
 § 40. A permissive occupation, under a contract, express or im- 
 plied, conferring a legal possession, is indispensable to the creation of 
 a tenancy.^**^ A licensee, however, need not be in possession and or- 
 dinarily does not have possession transferred to him. So in a case 
 where the outside wall of a house was let for advertising purposes, 
 the advertiser was a licensee only, although the contract was put in 
 the form of a lease and the privilege was to continue for a definite 
 term. The advertiser was not given possession of the wall, but was 
 merely entitled to do a series of acts in affixing bill boards upon it.-''^ 
 Whether a contract be a lease or a license will be determined, not 
 by what the parties to it may choose to call it nor from the language, 
 but from the legal efEect of its provisions. An instrument is not a 
 demise or lease, although it contain the usual words of demise, if its 
 
 '««Nowlin Lumber Co. v. Wilson, ^'^ Central Mills v. Hart, 124 Mass. 
 
 119 Mich. 406, 78 N. W. 338; Duin- 123; Kirchgassner v. Rodick, 170 
 
 neen v. Rich,' 22 Wis. 550; Cayuga Mass. 543, 49 N. E. 1015; Rogers v. 
 
 Railway Co. v. Niles, 13 Hun (N. Coy, 164 Mass. 391, 41 N. E. 652. 
 
 y ) 170. =™ Goldman v. New York Adv. Co., 
 
 =«^ Duinneen v. Rich, 22 Wis. 550. 29 Misc. 133, 60 N. Y. 275. Compare 
 
 But see Sampson v. Burnside, 13 N. R. J. Gunning Co. v. Cusack, 50 HI. 
 
 H. 264, where this distinction was App. 290. 
 not recognized. 
 
 Jones L. & T.— 4
 
 § 40] CREATION OF THE RELATION. 50 
 
 contents show that such was not the intention of the parties. So 
 the grant of a right to string wires through an area-way under a side- 
 walk took effect as a license and not as a lease, and rent could not be 
 claimed for such use. There was no exclusive possession given, or 
 intended to be given, to the lessee or licensee of the area space within 
 wliich the wires were strung. Every test points to the conclusion that 
 it was a mere license and not a lease.^^*' The same principle was ap- 
 plied where one railway line occupied a large terminal station in con- 
 junction with many other roads.^^^ So where a spur track was used 
 by a railroad and the adjoining land was occupied and used by the 
 owner, the joint occupation and use by the railway company was 
 held to be in the capacity of a licensee and not of a tenant.^^^ Per- 
 mission to maintain a portable office and derrick on premises in con- 
 nection with wharfage privileges failed to constitute a lease for the 
 same reason, and the occupant could not be removed by the summary 
 proceeding provided by statute and applicable to tenants alone.^^^ 
 
 "But a tenancy does not necessarily imply a right to complete and 
 exclusive possession; it may on the other hand be created with im- 
 plied or express reservation of a right to possession on the part of 
 the landlord for all purposes not inconsistent with the privileges 
 granted the tenant."^^* Where the owner of a pond leased, demised 
 and let the sole right to cut ice therefrom, reserving to himself the 
 right to cut ice needed for his own nse, this was held to create a 
 tenancy and not to be a mere license. It was the purpose of the in- 
 denture to transfer the sole and exclusive right to cut and use, or 
 sell, all such ice, except what the lessor needed for his private use. 
 The grantee had an interest greater than a mere revocable license 
 and could bring an action against one who interfered with his rights ; 
 he had a valuable right and if a stranger unlawfully encroached upon 
 it, he might maintain a proper action therefor.^^^ 
 
 ""Holladay v. Chicago Arc Light One judge dissented and thought de- 
 
 &c. Co., 55 111. App. 463. In the case fendant a licensee, 
 
 of Edmunds v. Electric Light &c. "" Union Depot Co. v. Chicago &c. 
 
 Co., 76 Mo. App. 610, there was an R. Co., 113 Mo. 213, 226, 20 S. W. 
 
 agreement allowing defendant to 792. 
 
 erect poles and string wires over "^ Central Mills v. Hart, 124 Mass. 
 
 plaintiff's land for $5 per month, 123. 
 
 same to be removed on thirty days' "' Daniels v. Cushman, 3 T. & C. 
 
 notice. The holding of the court that (N. Y.) 125, affirming 1 Hun 73. 
 
 this was a lease can only be sup- "* Morrill v. Mackman, 24 Mich, 
 
 ported on the theory that the d«- 279, 284, per Cooley, J. 
 
 fendant had possession by virtue of "'Richards v. GaufEret, 145 Mass. 
 
 the wires strung along the land. 486, 14 N. E. 535.
 
 51 LEASE OR LICENSE. [§§' 41, 42 
 
 § 41. Grant of mining rights. — Where the acts of digging and 
 so forth, are of such a character that they necessitate an actual occupa- 
 tion of the licenser's land, the license must be in writing to be valid, as 
 the transaction is really a lease of the premises to that extent. Thus 
 the right to mine certain land must be created by a lease. The case 
 would be no different than if the piece of ground had been demised 
 for cultivation or for any other purpose.^^^ A lease may not only 
 confer upon the lessee the right to occupy and cultivate and to remove 
 the products of cultivation, but it may confer on him the power to 
 occupy and remove a portion of that which constitutes the land itself. 
 Familiar and common examples of such leases are those authorizing 
 the lessee to quarry and remove stone, to open mines and remove 
 minerals, or to sink wells for petroleum and natural gas. The power 
 to execute leases for such purposes, and the fact that the instrument 
 by which such interest in land is granted may be in all essential par- 
 ticulars a lease will not be questioned.-^'^ A grant of an exclusive 
 right to drill for oil and gas for a definite time is more than a mere 
 license; it is a lease of the land.^^^ Where possession is trans- 
 ferred to the parties working the mines, the transaction is held 
 to amount to a lease ;^'^'' but a grant to miners to enter and work 
 mines and remove minerals was held to be a license rather than a 
 lease, because they were not in possession.^^" The right to dig and 
 carry away ore from the mine of another, is an incorporeal heredita- 
 ment or easement; and any contract for the sale of such right must 
 be in writing. A verbal contract, conferring such right, will never- 
 theless operate as a verbal license and, while unrevoked, will protect 
 the person to whom it is given from an action of trespass and vest 
 in him the property in the ore that is actually dug under it.^^^ 
 
 § 42. Payment of consideration as a test. — A permissive occupa- 
 tion of land for an indefinite term and without a contract for recom- 
 pense is in construction of law a tenancy at will rather than a license. 
 A license is an authority to do a particular act or series of acts on 
 the land of another without possessing an estate therein. Permission 
 
 ='«Ganter v. Atkinson, 35 Wis. 48; =" Kirk v. Mattier, 140 Mo. 23, 41 
 
 Hammond v. Winchester, 82 Ala. S. W. 252. 
 
 470, 2 So. 892. '"' Hobart v. Murray, 54 Mo. App. 
 
 =" Knight V. Indiana Coal Co., 47 249; Lunsford v. La Motte Lead Co., 
 
 Ind. 105, 17 Am. R. 692; Hey wood 54 Mo. 426; Lockwood v. Lunsford, 
 
 V. Fulmer, 158 Ind. 658, 32 N. E. 56 Mo. 68; Boone v. Stover, 66 Mo. 
 
 574. 430. 
 
 ="« Harris v. Ohio Oil Co., 57 Ohio =«' Riddle v. Brown, 20 Ala. 412; 
 
 St. 629, 50 N. E. 1129. Desloge v. Pearce, 38 Mo. 588.
 
 § 43] CREATION OF THE RELATION. 52 
 
 to occupy and enjoy premises rent free for an indefinite period is 
 properly a tenancy at will and not a license.^^^ Where the use of 
 demised premises is restricted so that the letting approaches a mere 
 license, the payment of consideration and an arrangement for a fixed 
 term tend to prove the transaction to be a lease.^^^ The reservation 
 of rent is not, however, essential to the creation of a tenancy and a 
 holding for a definite term is also unnecessary, so that the cases which 
 decide that the absence of these two circumstances render what would 
 otherwise be a demise a mere license, seem to depart from the prevail- 
 ing view in this respect.^^* Even in a jurisdiction where this doctrine 
 is law, the right to erect and maintain a building on land of another 
 would amount to such an interest in real estate that it could only be 
 transferred by an instrument in writing.^^^ 
 
 § 43. Restricted and intermittent use. — Where a theater was let 
 for four nights, the owner to light it and have control of a certain 
 portion of the box receipts, there was not a tenancy but a mere 
 license.-®^ So an authority to an unincorporated charitable society 
 to use the basement of a church for its meetings and for fairs and 
 parties was held to be a mere license. The use the society was to 
 make of the hall was not general and exclusive, but limited to its own 
 special objects.^*^ In holding that a contract for the use of a dance 
 hall four afternoons did not create a tenancy, Morton, C. J., said: 
 "The use of the hall by the plaintiff was not to be continuous, but 
 only occasional, and for a few hours on four separate days. He v^as 
 
 ^ Morgan v. United States, 14 Ct. a contract between the parties, they 
 
 CI. (U. S.) 319; Cheever v. Pear- would amount to a mere license." 
 
 son, 16 Pick. (Mass.) 266, 271. In accordance with this doctrine. 
 
 Contra, Lake Erie &c. R. Co. v. Ken- it was held that no tenancy was cre- 
 
 nedy, 132 Ind. 274, 31 N. E. 943. ated by a permit given by a quarter- 
 
 -^ Gary Hardware Co. v. McCarty, master for the erection and mainte- 
 
 10 Colo. App. 200, 209, 50 Pac. 744. nance of a house upon land belong- 
 
 ^One of the leading cases reach- ing to a military post (Keeling v. 
 
 ing this conclusion is Branch v. Kuhn, 19 Kan. 441); and the same 
 
 Doane, 17 Conn. 402, where one was held in regard to a town grant 
 
 building a mill on another's land of an exclusive privilege to build a 
 
 by his consent and occupying it con- market house (Brookhaven v. Bag- 
 
 tinuously for six years was held not gett, 61 Miss. 383). 
 
 to be a tenant of the landowner. "^ Collins Co. v. Marcy, 25 Conn. 
 
 Storrs, J., said on page 411: "If, 239. 
 
 therefore, the words, whatever they -'" Oxford v. Leathe, 165 Mass. 254, 
 
 may be, which confer authority to 43 N. E. 92. 
 
 another to take possession of land, "'' Hamblett v. Bennett, 6 Allen 
 
 are not accompanied with language (Mass.) 140, 145. 
 or stipulations which evince such
 
 53 LEASE OR LICEXSE. [§44 
 
 not to have the exclusive occupation and control of it; the key was 
 
 never delivered to him, but remained with the defendant, who, on tlie 
 
 afternoons it was occupied under the contract, opened, lighted, and 
 
 closed it. We think the defendant would remain all the time in the 
 
 legal possession of the land ; that the plaintiff was to occupy it merely 
 
 as licensee, and would acquire under the contract no interest in the 
 land."288 
 
 § 44. A theater ticket is only a license to enter the part of the 
 theater specified in it; and if before the holder has entered, the 
 licenser, with no more force than is necessary for the purpose, pre- 
 vents him from entering, he cannot maintain an action of tort for 
 the exclusion. The ticket is a license legally revocable, and after it 
 has been revoked, an attempt to enter is unwarranted, and neces- 
 sary force to prevent an entry may rightfully be used.^^'' It does not 
 alter the law that the ticket-holder has entered the theater and is sub- 
 sequently ordered out. Upon the licensee's refusal to leave the hall 
 to which his ticket gave him admittance, the proprietor has a lawful 
 right to remove him. For such removal an action of trespass cannot 
 be maintained. The licensee might have a remedy in another form 
 of action for breach of the contract; but that cannot affect the de- 
 cision in an action of trespass.-^" 
 
 That no incorporeal inheritance affecting land can either be cre- 
 ated or transferred otherwise than by deed is a well-established propo- 
 sition. In all the authorities and text books on the subject a deed is 
 always stated or assumed to be indispensably necessary.^'*^ In the lead- 
 ing English case of Wood v. Leadbitter,^^^ the question before the 
 court was whether a ticket admitting to a grandstand at a race course 
 could be revoked. The right conferred by the ticket was for the 
 holder to go and remain, where, if he went and remained, he would, 
 but for the ticket, be a trespasser. This was a right affecting land 
 as obviously and extensively as a right of way over the land, so that 
 on general principles it would be perfectly clear tliat no such riglit 
 could be created otherwise than by deed. However, it was argued 
 that the ticket was a license, and that such license was, under the cir- 
 
 =^'' Johnson v. Wilkinson, 139 221; Bryan v. Whistler, 8 B. & C. 
 
 Mass. 3, 4, 29 N. E. 62. 288; Cocker v. Cowper, 1 C. M. & R. 
 
 ^-'''McCrea v. Marsh, 12 Gray 418; Wallis v. Harrison, 4 M. & W. 
 
 (Mass.) 211. 538. 
 
 -"" Burton v. Scherpf, 1 Allen '^'' Wood v. Leadbitter, 13 M. & W. 
 
 (Mass.) 133. 838. 
 
 ^^Hewlins v. Shippam, 5 B. & C.
 
 § 45] CREATION" OF THE RELATION, 54 
 
 cumstances, irrevocable, and authorities were cited by counsel to sup- 
 port this argument. Baron Alderson reviewed all the authorities and 
 found the only one to support this contention to be the case of Taylor 
 V. ^Yaters.^^^ Opposed to it there are many cases which all state in 
 the most distinct manner that every license is and must be in its 
 nature revocable, so long as it is a mere license.^^* "VMiere, indeed, 
 it is connected with a grant, there it may, by ceasing to be a naked 
 license, become irrevocable ; but then it is obvious that the grant must 
 exist independently of the license. Such was the case where hay on 
 the vendor's close was sold and the conditions of the sale were that 
 the purchaser of the hay might leave it on the close till Lady-day, 
 and might, in the meantime, come on the close, from time to time, 
 as often as he should see fit to remove it. This was a case not of a 
 mere license, but of a license coupled with an interest. The case was 
 analogous to that of a man taking goods and putting them on his 
 land, in which case the owner is justified in going on the land and 
 removing them.'^^^ 
 
 § 45. In cases where dams are built and lands flowed, if more 
 than a temporary use is intended, it is not technically a license, but 
 takes effect as a lease or easement.-^^ Although there are early de- 
 cisions to the effect that a parol license to build a dam on another's 
 land is not within the statute of frauds because it is a mere grant of 
 a privilege to be exercised upon land, and not of an interest in the 
 land itself,^^^ the true rule seems to be that the right to erect and 
 maintain a dam on the land of another must be regarded as such an 
 interest in real estate as cannot pass by parol. ^^^ But where the right 
 to flow adjoining land for mill purposes was conferred by statute on 
 payment of damages, a parol agreement to waive a claim for such 
 damages was held to be valid and irrevocable.^^ ^ However, it has been 
 held that when an authority of this kind has been acted upon and 
 
 =^"'7 Taunt. 378. mell v. Trammell, 11 Rich. (S. Car.) 
 
 =»*Rex v. Horndon-on-the-Hill, 4 471. 
 
 M. & S. 562. ■'" Woodbury v. Parshley, 7 N. H. 
 
 =»MVood V. Manley, 11 A. & E. 34, 237; Clement v. Durgin, 5 Me. 9; 
 
 3 Per. & D. 5; Vin. Abr. Trespass Sampson v. Burnside, 13 N. H. 264; 
 
 (H.), a 2, pi. 12; Patrick v. Cole- Hall v. Chaffee, 13 Vt. 150. 
 
 rick, 3 M. & W. 483. ^^^ Moulton v. Faught, 41 Me. 298; 
 
 =»« Smith V. Simons, 1 Root Pitman v. Poor, 38 Me. 237; Thomp- 
 
 (Conn.) 318; Woodward v. Seely, 11 son v. Gregory, 4 Johns. (N. Y.) 
 
 111. 157; Mumford v. Whitney, 15 81; Cocker v. Cowper, 1 C. M. & R. 
 
 iWend. (N. Y.) 380; Brown v. Wood- 418; Carter v. Harlan, 6 Md. 20. 
 
 worth, 5 Barb. (N. Y.) 550; Tram- =*^ Clement v. Durgin, 5 Me. 9.
 
 55 CROPPING CONTRACTS. [§46 
 
 money expended in the erection of the dam, the contract may be en- 
 forced in equity on the ground that it is taken out of the statute of 
 frauds by part performance.^"" In another case it was said that the 
 license could not be revoked without tendering his expenses to the 
 licensee.^"^ 
 
 8. Cropping Contracts. 
 
 § 46. The term "cropping contract" is used here to indicate any 
 agreement between a landowner and a laborer in regard to the culti- 
 vation of land which does not rise to the dignity of a lease. ''There 
 is an obvious distinction between a cropper and a tenant. One has 
 a possession of the premises, exclusive of the landlord ; the other has 
 not. The one has a right for a fixed time, the otlier lias only a right 
 to go on the land to plant, work, and gather the crop. The possession 
 of the land is with the owner as against the cropper. This is not so 
 of the tenant."^"- 
 
 A cropper has no estate in the land; that remains with the land- 
 lord. Consequently, although he has in some sense the possession of 
 the crops, it is only the possession of a servant and is in law that of 
 the landlord. The landlord must divide ofE to the cropper his share. 
 In short, he is a laborer receiving pay in a share of the crop.^"^ 
 
 "In construing contracts for the cultivation of land at halves it 
 is impossible to lay down a general rule applicable to all cases, be- 
 cause the precise nature of the interest or title between the contract- 
 ing parties must depend upon the contract itself, and very slight pro- 
 visions in the contract may very materially affect the legal relations 
 of the parties. ... In some cases, the owner of the land gives 
 up the entire possession, in which event it is a contract in the na- 
 ture of a lease with rent payable in kind; in other cases, he continues 
 to occupy the premises in common with the other party, or reserves 
 to himself that right, and so a tenancy in common to that extent is 
 created, and each is entitled to the joint possession of the crops, or 
 the possession of the one is the possession of the other until division; 
 or he may retain the sole possession of the land, and the other party 
 may have merely the right to perform the labor and receive half the 
 
 ^""Meetze v. Charlotte &c. R. Co., ney v. State, 101 Ga. 512, 28 S. E. 
 
 23 S. Car. 1. 1007. 
 
 ="1 Woodbury v. Parshley, 7 N. H. ^'" McNeeley v. Hart, 10 Ired. L. 
 
 237. (N. Car.) 63; Brozier v. Ansley, 11 
 
 '»= Appling v. Odom, 46 Ga. 583, Ired. L. (N. Car.) 12; State v. Biir- 
 
 584, per McCay, J., quoted in Hack- well, 63 N. Car. 661; State v. Aus- 
 tin, 123 N. Car. 749, 31 S. E. 731.
 
 § 47] CREATION OF THE RELATIOX. 56 
 
 crops as compensation, or the two parties may become tenants in com- 
 mon of the growing crops, while no tenancy in common, as such, 
 exists in the land."^"* 
 
 In speaking of the rights of a cropper under a cropping contract, 
 which was held to make him a tenant in common. Judge Bennet, 
 speaking for the Vermont court, said : "It doubtless gave him an in- 
 terest in the land. He was not to occupy as the mere servant of the 
 owner, neither did he occupy upon hire and to receive a given portion 
 of the crops as a compensation. He had something more than a mere 
 license to enter and cultivate the soil. He had a right to occupy; 
 and the owner could not exclude him while in the performance of his 
 duties; but it may be difficult to define the precise nature and char- 
 acter of his interest."^**^ 
 
 § 47. Whether an agreement for the occupation of farming 
 lands is a lease or a cropping contract depends on the intention of the 
 parties as gathered from the attendant circumstances,^"^ or from the 
 words of the agreement when it has been reduced to writing. In the 
 latter case it is a question of interpretation for the court ;^**'^ in the 
 former it is a question of fact for the jury to decide from the evi- 
 dence.^"^ When the jury have found a tenancy on such facts it is 
 • conclusive/*''' and not subject to reconsideration by the court except 
 on the ground of misconduct or that the verdict is against the evi- 
 dence. 
 
 The use of the word "lease" in a contract is evidence that the par- 
 ties meant what the word implies, but the guide to construction being 
 the intention of the parties, the whole contract must be examined.^^** 
 It is not conclusive what a contract may be named or called by the 
 parties. The real intention as expressed in the writing must con- 
 
 3M Warner v. Abbey, 112 Mass. be regarded as landlord and tenant 
 
 355, per Endicott, J. See also, Or- unless the Intention to make them 
 
 cutt V. Moore, 134 Mass. 48; Moser tenants in common were unmistak- 
 
 v. Lower, 48 Mo. App. 85. able. 
 
 ^°= Aiken v. Smith, 21 Vt. 172, 179. """ Bailey v. Ferguson, 39 111. App, 
 
 '°'' Walls v. Preston, 25 Cal. 59; 91; Johnson v. Hoffman, 53 Mo. 504. 
 
 Alwood V. Ruckman, 21 111. 200, 201; ="« Williams v. Cleaver, 4 Houst. 
 
 Hansen v. Dennison, 7 111. App. 73; (Del.) 453. 
 
 Moser v. Lower, 48 Mo. App. 85; ='°'* Foley v. Southwestern Land 
 
 Kamerick v. Castleman, 23 Mo. App. Co., 94 Wis. 329, 68 N. W. 994. 
 
 481; Somers v. Joyce, 40 Conn. 592; =1" Ferris v. Hoglan, 121 Ala. 240, 
 
 Johnson v. Hoffman, 53 Mo. 504. In 25 So. 834; Griswold v. Cook, 46 
 
 Birmingham v. Rogers, 46 Ark. 254, Conn. 198; Moser v. Lower, 48 Mo. 
 
 it was held that the parties would App. 85.
 
 57 CROPPING CONTRACTS. [§ 48 
 
 trol. And contracts of this character must be so construed as to give 
 force and effect to the intention of the parties.^^^ Yet the words "de- 
 mise and to farm let" may be used in an instrument as evidence of 
 the intention of the parties to enter into the relation of landlord and 
 tenant rather than to make an agreement for the cultivation of land 
 for a share of the crop.^^- Thus there was a tenancy with a crop 
 rent reserved when the agreement expressly provided that the owner 
 "rented and hired, and suffered the lessee to possess and enjoy the 
 farm and gave him the quiet and uninterrupted possession."^^^ That 
 nothing is said about leasing or letting the premises is evidence that 
 no tenancy was created. If nothing is said about paying anything 
 as rent, or as a yearly rent for the possession and enjoyment of prem- 
 ises for that length of time, if the language is merely that of an agree- 
 ment to till a crop on shares and divide it, this would constitute the 
 parties tenants in common of the crop while growing and when ma- 
 tured.3" 
 
 § 48. There has been a tendency in certain cases to impute a 
 fixed intention to the landowner not to create a tenancy by a con- 
 tract for cultivation on the shares. This applied particularly to 
 agreements covering a single year only. The foundation of it is the 
 supposed benefits to the landlord from such an interpretation, which 
 makes him a tenant in common in the crop.^^° The matter was dis- 
 posed of in a Connecticut case in the following language: "Letting 
 land on shares is a phrase well understood among farmers. It means 
 that both parties shall share equally in the products of the soil to 
 
 »»McNeal v. Rider, 79 Minn. 153, Johns. (N. Y.) 151; Adams v. Mc- 
 
 81 N. W. 830. Kesson, 53 Pa. St. 81; Bishop v. 
 
 ^i^Somers v. Joyce, 40 Conn. 592; Doty, 1 Vt. 37; Frost v. Kellogg, 23 
 
 Steel v. Frick, 56 Pa. St. 172. Vt. 308; Leland v. Sprague, 28 Vt. 
 
 '"Stewart v. Doughty, 9 Johns. 746. Freeman on Co-Tenancy and 
 
 (N. Y.) 108. Partition. 2d ed., § 100, where it 
 
 '" Currey v. Davis, 1 Houst. is assumed that the object is to 
 
 (Del.) 598. vest in each party a portion of the 
 
 "■^Hare v. Celey, Cro. Eliz. 143; crop. The learned author proceeds: 
 
 Smyth v. Tankersley, 20 Ala. 212; "Such being the object, it ought to 
 
 Ponder v. Rhea, 32 Ark. 435; require very clear language to vest 
 
 Thompson v, Mawhinney, 17 Ala. in one the ownership of the whole 
 
 362; De Mott v. Hagerman, 8 Cow. crop, leaving the other with a mere 
 
 (N. Y.) 220; Curtner v. Lyndon, chose in action and in many circum- 
 
 128 Cal. 35, 60 Pac, 462; Guest v. stances without any substantial 
 
 Opdyke, 31 N. J. Law 552, 554; remedy for an invasion of his equit- 
 
 Gray v. Reynolds, 67 N. J. Law 169, able right." 
 50 Atl. 670; Bradish v. Schenck, 8
 
 § 48] CREATION OF THE RELATION. 58 
 
 compensate the one for his labor, and the other for the use of his land. 
 In such cases, after the crops are harvested and before a division is 
 made, each party is the owner of an undivided moiety of the same, 
 and is a tenant in common with the other unless the contract contains 
 some special provision taking the case out of the general rule."^^® Al- 
 though it was laid down in an early English case^^'^ that an agree- 
 ment for cultivating a single crop on the shares did not create a ten- 
 ancy, the length of the term does not seem to be the determining 
 factor. In many of the cases where this doctrine has been invoked 
 and applied the actual intention of the parties, as gathered from the 
 surrounding circumstances, was not to enter into the relation of land- 
 lord and tenant.^^^ There is no valid objection to a tenancy for one 
 year with rent payable in crops produced, nor is the fact that the 
 agreement is for a single year conclusive as to the intention of the 
 parties. 
 
 In one case there was held to be no tenancy, although the letting 
 for crop rent was to continue for five years, and the reason for the de- 
 cision was based upon the intention of the parties, "It is quite ap- 
 parent," says the court, "that it was not the intention of the parties 
 that this contract should constitute a lease of the land. It is not 
 styled a lease, nor executed as such; but is simply called an agree- 
 ment. There are no technical words in it appropriate to a lease, un- 
 less it be the words "agree to let" There are no words reserving any 
 portion of the produce as rent, — ^but simply that he (the cropper) is 
 
 ^'''Connell v. Richmond, 55 Conn. (Ind.) 317, 318, 35 Am. Dec. 122, 
 
 401, 402, 11 Atl. 852, per Parker, J. Dewey, J., criticized this case as 
 
 "'The case of Hare v. Celey, Cro. follows: "'. . . the court said 
 Eliz. 143, was trespass by Hare and that had the letting been for two 
 others for spoiling the crop in their or three crops, the rule as to the 
 close. Hare was seized in fee and right of the owner to sustain an ac- 
 let to the others to sow at halves on tion for breach of the close would 
 these terms, that he should find one- have been different.' We do not 
 half the seed, and the others the perceive the reason for this distinc- 
 other half, and should manure the tion. The possession of the tenant 
 land; and that Hare should have for the purpose of raising one crop 
 one moiety of the grain and the is as complete for the time being 
 others the other half. "The court as if his right extended to the pro- 
 held it no lease of the land, but duction of two or three crops." 
 otherwise if it be for two or three ^'* Walker v. Fitts, 24 Pick, 
 crops; and therefore, as to the (Mass.) 191; Guest v. Opdyke, 31 
 breaking of the close. Hare only N. J. Law 552; Foote v. Colvin, 3 
 was to bring the action; and as to Johns. (N. Y.) 216; Caswell v. Dis- 
 the spoiling of the corn, they ought trich, 15 Wend. (N. Y.) 379; Put- 
 to join being tenants in common." nam v. Wise, 1 Hill (N. Y.) 234. 
 In Woodruff v. Adams, 5 Blackf.
 
 59 CROPPING CONTRACTS. [§ 49 
 
 to take the farm after the usual custom and the produce to be equally 
 divided between the parties. The construction is to be of the whole 
 instrument, and although the contract might contain apt words to 
 make a lease, yet they might be overcome by a contrary intent appear- 
 ing on its face."^^^ 
 
 § 49. If one be hired to work land, receiving for his compensation 
 part of the produce, he is a cropper and not a tenant. He has no in- 
 terest in the land, but receives his share as the price of his labor. 
 The possession is still in the owner of the land, who alone can main- 
 tain trespass ; nor can he distrain, for he does not maintain the rela- 
 tion of landlord and tenant. ^^"^ Under such circumstances it is the 
 duty and privilege of the landowner to divide ofE to the cropper his 
 share of the crop, and until he does so title to the whole remains in 
 him.^^^ It is often difficult to determine whether the relation of 
 the parties is that of landlord and tenant or that of owner-employer 
 and cropper-employe. It cannot be both, and where the occupier is 
 to have exclusive possession and is to deliver certain portions of the 
 crop as rent, the parties stand in the relation of landlord and ten- 
 ant.^^- On the other hand, one working for a share of the crop under 
 the direction of the owner has been held to be a laborer within the 
 meaning of a master and servant law.^^^ For it is possible for a land- 
 owner to hire a laborer to cultivate his land and agree to pay him a 
 portion of the crop as wages.^^* So an agreement by which one party 
 is to furnish the land and stock and feed, the other party is to do the 
 work, and the crop grown is to be divided equally between them, consti- 
 tutes a contract of hiring, and does not create the relation of landlord 
 
 ^" Aiken v. Smith, 21 Vt. 172, 180, ^-^ Ferris v. Hoglan, 121 Ala. 240, 
 
 per Bennett, J. 25 So. 834; Hammock v. Creekmore, 
 
 320 Pry y Jones, 2 Rawle (Pa.) 48 Ark. 264, 3 S. W. 180; Tinsley 
 
 11, 12, in the words of Rogers, J.; v. Craige, 54 Ark. 346, 15 S. W. 897, 
 
 Adams v. McKesson, 53 Pa. St. 81; 16 S. W. 570; Woodward v. Conder, 
 
 Williams v. Cleaver, 4 Houst. (Del.) 33 Mo. App. 147. In Shaw v. Mayer, 
 
 453; Harrison v. Ricks, 71 N. Car. 95 Cal. 301, a landowner agreed to 
 
 7, 10. furnish 140 acres "more or less" 
 
 ^" McNeeley v. Hart, 10 Ired. L. and a cropper agreed to plant it 
 
 (N. Car.) 63; Brazier v. Ansley, 11 with wheat and pay one-fifth of the 
 
 Ired. L. (N. Car.) 12; Harrison v. crop as rental. The cropper only 
 
 Ricks, 71 N. Car. 7, 10. planted nineteen acres and a vol- 
 
 '" Neal V. Brandon, 70 Ark. 79, 66 unteer crop sprang up on the bal- 
 
 S. W. 200. ance. Held, the cropper was nei- 
 
 ^" Huff V. Watkins, 15 S. Car. 82, ther a tenant nor tenant in common 
 
 85; Richey v. Du Pre, 20 S. Car. 6, and could only claim the amount 
 
 10. he had planted.
 
 § 50] CREATION OF THE RELATION, 60 
 
 and tenant.^^^ Such an agreement may take effect as a contract of em- 
 ployment, although the laborer occupies a house on the premises, and 
 in that case he would hold possession as the servant of the owner 
 without any of the rights of a tenant.^ ^"^ In one case a lessee of land 
 contracted with the owner to have the latter cultivate the land and 
 receive as wages a portion of the crop. Where such an agreement 
 had been actually carried into effect, the lessee became the owner of 
 his share of the crop, and creditors of the landlord could not levy on 
 it for his debts.^^^ 
 
 § 50. The character of the cropper's occupation is an important 
 factor in determining the nature of the contract. Provisions in a 
 contract in regard to the kind of crop to be raised on certain fields, 
 the mode of cultivation, the making and repayment of advancements 
 tend to show a joint enterprise, and not a tenancy.^^* When the 
 agreement spoke of "services" and the landowner agreed to supply 
 house, teams, and give one-half the crops in pay for such services, 
 there was no tenancy. ^^® However, the joint ownership by the land- 
 lord of stock and provisions on a farm does not seem to limit the 
 character of the tenant's occupation where the contract is to extend 
 over a series of years. In such cases a tenancy is created.^^" And it 
 has been held that the occupant would be a tenant even though the 
 landowner supplies a horse for use in cultivation,^^ ^ or utensils, 
 horses and feed for both horses and the tenant.^^^ 
 
 There are obvious reasons for holding that farm contracts for cul- 
 tivation on the shares shall not be construed as creating a partnership 
 between the parties. Such agreements are usually very informal in 
 their character, often resting in parol. In the absence of evidence 
 
 '==Hunt v. Matthews, 132 Ala. 286, L. (N. Car.) 55; State v. Burwell, 
 
 31 So. 613. 63 N. Car. 661; Curtis v. Cash, 84 
 
 '=« Chase v. McDonnell, 24 111. 236; N. Car. 41. 
 
 Parrish v. Commonwealth, 81 Va. 1. ^^ Hudgins v. "Wood, 72 N. Car. 
 
 =" Ralph v. Lockwood, 61 Cal. 155. 256. 
 
 '='Almand v. Scott, 80 Ga. 95, 4 =^» Smith v. Schultz, 89 Cal. 526, 
 
 S. E. 892; Bryant v. Pugh, 86 Ga. 26 Pac. 1087; Wentworth v. Ports- 
 
 525, 12 S. E. 927; Hancock v. Bog- mouth &c. R., 55 N. H. 540. Com- 
 
 gus. 111 Ga. 884, 36 S. E. 970; pare Smith v. Meech, 26 Vt. 233. 
 
 Bailey v. Ferguson, 39 111. App. 91; But see Baughman v. Reed, 75 Cal. 
 
 Unglish V. Marvin, 128 N. Y. 380, 319, 17 Pac. 222. 
 
 28 N. E. 634, affirming 55 Hun 45, '" Hatchell v. Kimbrough, 4 Jones 
 
 28 State Rep. 68, 8 N. Y. 283; Cas- L. (N. Car.) 163. 
 
 well V. Ditrich, 15 Wend. (N. Y.) =" Harrison v. Ricks, 71 N. Car. 
 
 379; Putnam v. Wise, 1 Hill (N. 7; Schlicht v. Callicott, 76 Miss. 
 
 Y.) 234; Moore v. Spruill, 13 Ired. 487, 24 So. 869.
 
 61 CROPPING CONTRACTS. [§ 51 
 
 clearly manifesting a contrary purpose, it will not be presumed that 
 the parties to such an agreement intend to assume the important and 
 intricate responsibilities of partners, or to incur the dangers fre- 
 quently incident to that relation. The parties to such agreemdhts 
 rarely contemplate anything more than a tenancy of the land.^^' 
 While the custom of renting farms upon shares is general, the courts 
 have seldom held that such agreements create partnerships between 
 the owner of the land and the tenant. A large majority of the cases 
 construe them as creating tenancies only.^^* Even where the land- 
 owner was to pay one-half the charges for running the farm, exclusive 
 of labor, no partnership was created; it was merely a letting on 
 shares.^^^ 
 
 § 51. Where the person producing the crop is in exclusive posses- 
 sion and control of the land, this usually constitutes him a tenant,^^® 
 even though such occupation does not begin till after the owner has 
 manured and ploughed the ground. ^^^ If the premises are absolutely 
 surrendered under the contract, and no control retained over them 
 or over the services of the person cultivating the crop, the contract is 
 for rent and not for service.^^^ 
 
 In case the parties to a contract for cultivation on the shares are 
 in joint occupation of the land covered by the contract, they become 
 tenants in common of the crops produced, and do not stand in the 
 relation of landlord and tenant to each other.^^" This disposes of 
 those cases where a crojDper cultivates a single field belonging to a 
 farm which is in the possession of the owner.^*" A naked right to 
 enter upon the field to raise a single crop on shares, the owner re- 
 maining in general possession of the farm, does not amount to a lease 
 
 '^'Shrum v. Simpson, 155 Ind. 272; Frame v. Badger, 79 111. 441; 
 
 160, 57 N. E. 708. Cornell v. Dean, 105 Mass. 435. 
 
 ^'' Chase v. Barrett, 4 Paige (N. ='• Darling v. Kelly. 113 Mass. 29. 
 
 Y.) 148; Quackenbush v. Sawyer, ^^^ Mondschein v. State, 55 Ark. 
 
 54 Cal. 439; Chapman v. Eames, 67 389, 392, 18 S. W. 383. 
 
 Me. 452; Warner v. Abbey, 112 ='' Herskell v. Bushnell, 37 Conn. 
 
 Mass. 355; Dixon v. Niccolls, 39 36; Creel v. Kirkham, 47 111. 344; 
 
 111. 372; Alwood v. Ruckman, 21 111. Delaney v. Root, 99 Mass. 546; 
 
 200; Putnam v. Wise, 1 Hill (N. Y.) Walker v. Fitts, 24 Pick. (Mass.) 
 
 234, 37 Am. Dec. 309. 191; Guest v. Opdyke, 31 N. J. Law 
 
 ^^' Williams v. Rogers, 110 Mich. 552; Edgar v. Jewell, 34 N. J. Law 
 
 418, 68 N. W. 240. Compare Spen- 259; Denton v. Strickland, 3 Jones 
 
 cer v. World's Columbian Exposi- L. (N. Car.) 61. 
 
 tion, 58 111. App. 637. '^'' Foote v. Colvin. 3 Johns. (N. 
 
 ^'"Wadley v. Williams, 75 Ga. Y.) 216; Moser v. Lower, 48 Mo. 
 
 App. 85.
 
 §§■ 52, 53] CREATIOX OF THE RELATION. 62 
 
 of the land.^*^ So where the landowner and the cropper were each 
 to furnish one-half the labor, the latter obtained no estate in the land, 
 because he did have exclusive possession,^*^ 
 
 § 52. The relation of landlord and tenant may exist although rent 
 is to be paid in a part of the crop.^" Except for the purpose of de- 
 termining what sort of a contract the parties intended to enter into, 
 it is immaterial whether rent is to be paid in cash or in kind. Where 
 technical words suitable to the creation of the relation of landlord 
 and tenant are used, that relationship arises in spite of the reservation 
 of rent in part of the crops.^** If the parties intended to make a 
 lease and the instrument executed by them was a lease, its effect as 
 such was not destroyed by their having contracted for the payment to 
 the lessor of a portion of the specific crops to be produced as rent for 
 the premises.^*^ For "rent is a certain profit either in money, pro- 
 visions, chattels or labor issuing out of lands and tenements in retri- 
 bution or return for their use."^*® And it is valid to create a tenancy 
 by providing for payment of rent, partly in kind and partly in 
 cash.^*^ 
 
 § 53. Tenancy carries with it the idea of legal ownership by the 
 tenant of the products of the soil.^*^ When it is established that a 
 
 ^"Warner v. Hoisington, 42 Vt. 395, 39 Atl. 697. Texas: Texas &c. 
 
 94. R. Co. V. Bayliss, 62 Tex. 570; Tig- 
 
 =" McLaughlin v. Kennedy, 49 N. nor v. Toney, 13 Tex. Civ. App. 518, 
 
 J. Law 519, 10 Atl. 391. 35 S. W. 881. Wisconsin: Strain 
 
 ^'^ California: Walls v. Preston, v. Gardner, 61 Wis. 174, 21 N. W. 
 
 25 Cal. 59; Smith v. Schultz, 89 Cal. 35; Foley v. Southwestern Land Co., 
 
 526, 26 Pac. 1087; Clarke v. Cobb, 94 Wis. 329, 68 N. W. 994. Ver- 
 
 121 Cal. 595, 54 Pac. 74. Illinois: mont: McLellan v. Whitney, 65 Vt. 
 
 Alwood V. Ruckman, 21 111. 200; 510, 27 Atl. 117; Reynolds v. Chyno- 
 
 Dixon V. Niccolls, 39 111. 372; Han- weth, 68 Vt. 104, 34 Atl. 36. 
 
 sen V. Dennison, 7 111. App. 73. '^^ Foley v. Southwestern Land 
 
 Iowa: Blake v. Coats, 3 G. Greene Co., 94 Wis. 329, 68 N. W. 994; Row- 
 
 548. Kentucky: Redman v. Bed- lands v. Voechting, 115 Wis. 352, 91 
 
 ford, 3 Ky. L. R. 511. Maine: N. W. 990. 
 
 Dockham v. Parker, 9 Me. 137. =" Walls v. Preston, 25 Cal. 59; 
 
 Maryland: Hoskins v. Rhodes, 1 Smith v. Schultz, 89 Cal. 526, 26 
 
 Gill & J. 266. Mississippi: Doty v. Pac. 1087. 
 
 Heth, 52 Mis. 530. Missouri: Kame- ^" Merrit v. Fishe.-, 19 Iowa 354, 
 
 rick v. Castleman, 23 Mo. App. 481. 356, per Dillon, J., citing Co. Litt. 
 
 New Hampshire: Moulton v. Robin- 144, 3 Kent. Com. 460. 
 
 son, 27 N. H. 550, followed in Hatch ^" Symonds v. Hall, 37 Me. 354. 
 
 V. Hart, 40 N. H. 93. New Jersey: ^" Smyth v. Tankersley, 20 Ala. 
 
 Mundy v. Warner, 61 N. J. Law 212; Doty v. Heth, 52 Miss. 530;
 
 63 
 
 CROPPING COXTRACTS. 
 
 [§ 53 
 
 certain contract is a lease, and that the relation of landlord and ten- 
 ant exists between the parties, there must be some appropriate words 
 in the contract to indicate that the crops are to be held in co-tenancy, 
 or such will not be the conclusion reached. If there is nothing in the 
 language to indicate that intention, then the products to be delivered 
 to the landlord after harvest, by the tenant, will be deemed the prop- 
 erty of the tenant until that time, and treated as rent to be then 
 paid.^^^ "A tenant has an estate in the land for the term, and con- 
 sequently he has a right of property in the crops. If he pays a share 
 of the crop for rent, it is he that divides off to the landlord his share, 
 and until such division the right of property and of possession of 
 the whole is his."^^^ In a Wisconsin case the court say : "It is doubt- 
 less true . . . that the fact that the relationship of landlord and 
 tenant exists is not conclusive on the question of the ownership of, or 
 rights in, the products of the farm. ... It must be admitted, 
 however, that the general rule supported by the great weight of au- 
 thority is that where the relation of landlord and tenant exists, even 
 though the rent is to be paid in kind, the title to the crops is in the 
 tenant until division is made, unless specific provision has been made 
 by the parties, in their contract, to the contrary ."^^^ However, there 
 is no necessary inconsistency between the relation of co-tenancy as to 
 the crops and tenancy as to the land. There is certainly no rule of 
 law so absolute in its nature as to prevent the occupant of land, under 
 
 Taylor v. Coney, 101 Ga. 655, 28 S. 
 E. 974; Shaffer v. Stevens, 143 Ind. 
 295, 42 N. E. 620; Currey v. Davis, 
 1 Houst. (Del.) 598; Symonds v. 
 Hall, 37 Me. 354; Bailey v. Fille- 
 brown, 9 Me. 12; Turner v. Bach- 
 elder, 17 Me. 257; Garland v. Hil- 
 horn, 23 Me. 442; Butterfield v. 
 Baker, 5 Pick. (Mass.) 522. 
 
 ^« California: Clarke v. Cobb, 121 
 Cal. 595, 54 Pac. 74. Illinois: Al- 
 wood V. Ruckman, 21 111. 200; Dixon 
 v. Niccolls, 39 111. 372; Sargent v. 
 Courrier, 66 111. 245; Hansen v. 
 Dennison, 7 111. App. 73. Indiana: 
 Woodruff V. Adams, 5 Blackf. 
 (Ind.) 317, 35 Am. Dec. 122; Front 
 V. Hardin, 56 Ind. 165. Iowa: 
 Townsend v. Isenberger, 45 Iowa 
 670. Maine: Dockham v. Parker, 
 9 Me. 137; Richards v. Wardwell, 
 ,82 Me. 343, 19 Atl. 863. Massachu- 
 
 setts: Warner v. Abbey, 112 Mass. 
 355; Darling v. Kelly, 113 Mass. 29. 
 New York: Stewart v. Doughty, 9 
 Johns. (N. Y.) 108. North Caro- 
 lina: Deaver v. Rice, 4 Dev. & B. 
 L. (N. Car.) 431, 34 Am. Dec. 388; 
 Hatchell v. Kimbrough, 4 Jones L. 
 (N. Car.) 163; Harrison v. Ricks, 
 71 N. Car. 7. Pennsylvania: Rine- 
 hart V. Olwine, 5 Watts & S. (Pa.) 
 157; Ream v. Harnish, 45 Pa. St. 
 376. South Carolina: De Vore v. 
 Kemp, 3 Hill 259. Vermont: Hurd 
 v. Darling, 16 Vt. 377, s. c. 14 Vt. 
 214; McLellan v. Whitney, 65 Vt. 
 510, 27 Atl. 117. 
 
 '"' Harrison v. Ricks, 71 N. Car. 
 7, 10. per Rodman, J. 
 
 ^" Rowlands v. Voechting, 115 
 Wis. 352, 91 N. W. 990, per Win- 
 slow, J.
 
 § 53] CEEATIOISr OF THE RELATION". 64 
 
 a contract which constitutes him a tenant in common with the owner 
 of the crops, from having as entire control over the premises during the 
 term, if the parties so agree, as a tenant covenanting to pay a money 
 rent would have, — it in other words, from being a tenant of the land 
 under a lease, and at the same time a tenant in common of the crop 
 or of some part of it.^^^ The general principle has been recognized 
 in many cases that it is competent for either party to provide for the 
 vesting of title in the crops in himself till division is made.^^^ An 
 express stipulation that title to the crop rent shall remain in the land- 
 lord is valid.^°* So under a lease of a farm and stock of cattle, with 
 stipulation that the rent should consist of a specified part of the prod- 
 ucts, except the hay, which should go wholly to the use of the lessor, 
 the hay belongs exclusively to him, though never delivered.^" And 
 hay raised by a lessee subject to the condition that it shall be used on 
 the farm, cannot be attached or taken on execution by creditors of the 
 lessee.^^^ It cannot be supposed that it was intended to be subjected 
 to his debts and carried away from the farm. The provision requir- 
 ing the hay to be spent upon the farm is conformable to the rules of 
 good husbandry.^" If there is a provision for a division of the 
 specific crops with a reservation by the landlord of an undivided 
 share, the parties become tenants in com^mon.^^^ Where a specific 
 kind of produce is to be set off entire to the landlord, it seems that 
 the cropper has no title to it.^^^ In an English case it was held that 
 notwithstanding a covenant to expend the hay upon the land, the ten- 
 ant had a right to sell it unconditionally, and would merely be liable 
 to his landlord for breach of covenant. The idea of the exclusive 
 right of the tenant to the crops, in spite of stipulations in the lease, 
 still holds its ground in that country. Yet by statute there a sheriff 
 is forbidden to carry off the premises any produce, which, by the cove- 
 nants of the lease, is to be consumed upon the premises.^^" 
 
 ^= Walls V. Preston, 25 Cal. 59, land v. Sprague, 28 Vt. 746; Smith 
 
 66; Smith v. Schultz, 89 Cal. 526, v. Atkins, 18 Vt. 461; Willmarth v. 
 
 26 Pac. 1087; Jones v. Durrer, 96 Pratt, 56 Vt. 474. 
 
 Cal. 95, 30 Pac. 1027. ^"' Potter v. Cunningham, 34 Me. 
 
 ==^= Ponder v. Rhea, 32 Ark. 435; 192. 
 
 Howell V. Foster, 65 Cal. 169, 3 Pac. ^ Coe v. Wilson, 46 Me. 314. 
 
 647; Griswold v. Cook, 46 Conn. »" Lewis v. Lyman, 22 Pick. 
 
 198; Angell v. Egger, 6 N. Dak. 391, (Mass.) 437. 
 
 71 N. W. 547; Lanyon v. Woodward, ==«Tignor v. Toney, 13 Tex. Civ. 
 
 55 Wis. 652, 13 N. W. 863. This App. 518, 35 S. W. 881. 
 
 proposition is stated as exiomatic ^=='Kelley v. Weston, 20 Me. 232. 
 
 by Freeman Cob. & Par. 2d ed., § 100. ="'' Ridgway v. Stafford, 4 Eng. L. 
 
 ^ Potter V. Cunningham, 34 Me. & Eq. 453, 20 L. J. N. S. Ex. 226. 
 192; Coe v. Wilson, 46 Me. 314; Le-
 
 65 CROPPING CONTRACTS. [§54 
 
 § 54. Co-tenancy in both land and crops. — Thus far our considera- 
 tion has been directed to the inquiry whether an agreement for the 
 cultivation of land in return for a portion of the crop created the re- 
 lation of landlord and tenant between the parties or took effect as a 
 contract of employment. An intermediate view between these two 
 extremes is that such a general agreement for cultivation on shares 
 creates a co-tenancy in the land, and consequently the parties become 
 tenants in common of the crops produced.^^^ "Letting on shares/' it 
 was explained in one case, "i^ a, phrase well understood among 
 farmers. It means that both parties shall share equally in the prod- 
 ucts of the land, to comjjensate the one for his labor and the other for 
 the use of his land. In such cases, after the crops are harvested and 
 before a division is made, each party is the owner of an undivided 
 moiety of the same, and is a tenant in common with the other, unless 
 the contract contains some special provision taking the case out of 
 the general rule."^^- Mr. Freeman, in his treatise on "Co-Tenancy 
 and Partition," favors this view, and thinks that in those "decisions 
 holding that crops raised on the shares belong, until division, solely 
 to one of the contracting parties, too much importance was given to 
 words to which the parties attach no special importance. . . . The 
 prime object of contract is to vest each party with a share of the 
 crops to be raised . . . such being the object it ought to require very 
 clear language to vest in one the ownership of the whole crop, leaving 
 the other with a mere chose in action."^^^ After a division of the crop 
 has been made by the tenants in common, the landlord has an absolute 
 title to the share set off to him. Such a division does not necessarily 
 
 ^^^ California: Bernal v. Hovious, 65 Pac. 808. Virginia: Lowe v. 
 
 17 Cal. 541; Knox v. Marshall, 19 Miller, 3 Gratt. (Va.) 205. In Iowa 
 
 Cal. 617; Baughman v. Reed, 75 it was held by three judges, two dis- 
 
 Cal. 319, 17 Pac. 222. Connecticut: senting and one concurring in the 
 
 Connell v. Richmond, 55 Conn. 401, result on another ground, that a 
 
 11 Atl. 852. Minnesota: McNeal v. landlord had title to a crop rent 
 
 Rider, 79 Minn. 153, 81 N. "W. 830. reserved, and could make a valid 
 
 Missouri: Johnson v. Hoftman, 53 mortgage of it. Riddle v. Dow, 98 
 
 Mo. 504; Kamerick v. Castleman, 23 Iowa 7, 66 N. W. 1066. The tenant 
 
 Mo. App. 481. New Hampshire: has title to the other half, however. 
 
 Moulton V. Robinson, 27 N. H. 550, Stickney v. Stickney, 77 Iowa 699, 
 
 followed in Hatch v. Hart, 40 N. H. 42 N. W. 518. 
 
 93; Daniels v. Brown, 34 N. H. 454. '" Connell v. Richmond, 55 Conn. 
 
 New York: Putnam v. Wise, 1 Hill 401, 402, 11 Atl. 852, per Park, C. 
 
 (N. Y.) 234; Taylor v. Bradley, 39 J.; Richmond v. Connell, 55 Conn. 
 
 N. Y. 129. Oregon: Cooper v, Mc- 403, 11 Atl. 853. 
 
 Grew, 8 Ore. 327; Messinger v. '"^Freeman on Co-Tenancy and 
 
 Union "Warehouse Co., 39 Ore. 546, Partition (2d ed.), § 100. 
 
 Jones L. & T.— 5
 
 § 55] CREATION OF THE RELATION". 66 
 
 mean a delivery of one share to the landlord. After the landowner, 
 at a request of the tenant, had selected his share, which was separate 
 from the rest, there could be no further question that a division of 
 the property had been effected.^^* 
 
 § 55. The doctrine that an agreement for a crop rent takes effect 
 as a reservation has been advanced and seems to be the settled law in 
 New Hampshire. In accordance with this view, whenever upon a 
 lease of land, either for one crop or one year, or for several years, 
 the owner of the land is to receive a part of the productions of the 
 land in lieu of rent, the contract operates and takes effect by way of 
 reservation. The share reserved is always the property of the owner 
 of the land, without severance or delivery, though both of these may 
 be stipulated for. To accomplish this result it is wholly unnecessary 
 to resort to the idea that such a contract of hire is not a lease, or to 
 restrict it to contracts for a single year. The true construction of 
 the agreement would be that the lessor excepts or reserves his share, 
 out of the general grant of the profits, implied upon the letting to 
 hire; and instead of a general grant of the property, he substitutes 
 a grant of a special and qualified interest, a right to use the same in 
 one particular way for the common benefit of both parties. So an 
 agreement that hay shall be fed upon a farm takes effect as a reserva- 
 tion. According to the true construction of such a contract, the prop- 
 erty in the hay never passes to the tenants ; but, on the contrary, the 
 hay was reserved to be spent on the farm.^*'^ An objection to such a 
 doctrine has been made on the ground that it would be repugnant to 
 the grant to have the contract for rent take effect as a reservation.^^^ 
 
 ^"^ Rohrer v. Babcock, 126 Cal. 222, consistent with the grant. There- 
 
 58 Pac. 537; Crocker v. Cunning- fore such contracts as the present 
 
 ham, 122 Cal. 547, 55 Pac. 404. are necessarily construed neither as 
 
 ^'^^ Brown V. Lincoln, 47 N. H. 468; exceptions or reservations but as 
 Ladd V. Robinson, 27 N. H. 550; covenants or agreements of the 
 Hatch V. Hart, 40 N. H. 93; Carr v. lessee to give, as rent, as many- 
 Dodge, 40 N., H. 403. bushels of corn as the half of the 
 
 ^•^Ross v. Swaringen, 9 Ired. L. crop may amount to or deliver, as 
 
 (N. Car.) 481. The court say: "For, rent, the one-half of the corn that 
 
 in speaking of rents. Lord Coke may be made upon the land. It is 
 
 says: 'The lessor cannot reserve simply a payment of rent, agreed to 
 
 parcel of the annual profits as the be made in corn instead of money; 
 
 vesture or herbage of the land or but it does not change the property 
 
 the like, for that would be repug- in the crop while growing or when 
 
 nant to the grant. Co. Litt. 142.' It gathered until it is delivered to the 
 
 would be an exception of a part of lessor." 
 the thing already granted and in-
 
 67 CROPPING CONTRACTS. [§ 56 
 
 But Judge Bell, of the New Hampshire court, overrules this objec- 
 tion by saying : "There can be no good reason why a grantor should 
 not be at liberty to except out of his grant any part of it which he 
 chooses not to include in his conveyance, or to reserve to himself any 
 part of the income which he has not agreed to sell, and which the 
 purchaser has agreed he should retain. The questions which arise in 
 cases of this kind are merely questions of construction, and of the in- 
 tention of the grantor in the language he uses."^®^ An agreement for 
 title to the crop to vest in the lessor until a cash rent was paid has 
 also been supported without recording on the ground that it took ef- 
 fect as a reservation.^''^ 
 
 § 56. In some jurisdictions the matter of letting on shares has 
 been regulated by statute. In Alabama if the landowner merely sup- 
 plies the land and fertilizer, and the cropper is to supply labor and 
 teams, there is a tenancy and the tenant owns the crop.^*"* But where 
 the landowner furnishes the teams and the cropper merely supplies 
 his labor, the contract is one of hiring and the relation of landlord and 
 tenant does not exist.^'''' Under such circumstances the cropper has 
 no title to the crop and cannot bring trespass in regard to it.^'^ 
 
 In Georgia it is provided by statute that title to the crop, subject 
 to the interest of the cropper therein, remains in the owner of the 
 land.^^^ But the cropper still has possession of the crop so that he 
 would not be guilty of larceny in converting it to his own use. The 
 taking which is necessary to complete the offense of larceny must be 
 a trespass against the owner's possession. The conversion by a crop- 
 
 '" Moulton v. Robinson, 27 N. H. tenancy. Shields v. Kimbrough, 64 
 
 550, 552, citing Touch. 79. and the Ala. 504. 
 
 following passage from Braction, li. ^'"Ragsdale v. Kinney, 119 Ala. 
 
 2 fol. 32 b and 249, cited by Coke 454, 24 So. 443, citing Ala. Code of 
 
 (Co. Litt. 47 a), "Poterit enim quis 1896, 2712. 
 
 rem dare et partem rei retinere, vel "* Jordan v. Lindsay, 132 Ala. 
 
 partem de pertinentiis, et ilia pars 567, 31 So. 484. Contra, Gardner 
 
 quam retinit semper cum eo est et v. Head, 108 Ala. 619, 18 So. 551, 
 
 semper fuit." decided under the code of 1886, 
 
 368 Pox V. McKinney, 9 Ore. 493. § 365, holding the parties were ten- 
 
 ^^^ Kilpatrick v. Harper, 119 Ala. ants in common under such cir- 
 
 452, 24 So. 715, citing Ala. Code cumstances. 
 
 1896, 2711, 2712. Of similar import =" Civ. Code Ga. § 3131; Bryant 
 
 see, Wilson v. Stewart, 69 Ala. 302, v. Pugh, 86 Ga. 525, 12 S. E. 927; 
 
 decided under code of 1876, § 3474. Taylor v. Coney, 101 Ga. 655, 28 S. 
 
 Prior to the latter enactment a let- E. 974. 
 
 ting on the shares did not create a
 
 8 56] CREATION OF THE RELATION". 68 
 
 per of a portion of the crop to his own use is neither larceny or in- 
 dictable trespass under the code."^ 
 
 In North Carolina the code provides that "any and all crops raised 
 on land," whether by a tenant or cropper (in the absence of an 
 agreement to the contrary), shall be deemed and held to be vested 
 in possession of the landlord or his assigns at all times until the rent 
 for said land shall be paid to the lessor or his assigns, and until said 
 party or his assigns shall be paid for all advances. So it has be- 
 come immaterial whether the producer of a crop is a cropper or a 
 tenant.^^* 
 
 3" Lane v. State, 113 Ga. 1040, 39 State v. Austin, 123 N. Car. 749, 31 
 S. E. 463. S. E. 731, citing Code of N. Car., 
 
 «" State v. Surles, 74 N. Car. 330; § 1754.
 
 CHAPTER 11. 
 
 THE INSTRUMENT OF DEMISE. 
 
 1. Formal Parts, §§ 57-70. 
 
 2. Execution and Delivery, §§ 71-83. 
 
 3. Parties to Leases, §§ 84-97. 
 
 4. Description of Premises, §§ 98-110. 
 
 5. Duration of Term, §§ 111-119. 
 
 6. Illegal Leases, §§ 120-124. 
 
 7. Leases Obtained by Fraud, §§125- 
 
 129. 
 
 8. Collateral Parol Agreement, 
 
 §§ 130-137. 
 
 9. Agreements to Lease, §§137a-146. 
 
 10. Statute of Frauds, §§ 147-162. 
 
 11. Recording, §§ 163-167. 
 
 I. Formal Parts. 
 
 § 57. The instrument in writing creating the relation of landlord 
 and tenant is termed a lease. "A lease when wc mean thereby the 
 instrument, is in legal language, an indenture of lease or a deed; 
 and therefore Bacon and Cruise, and other authors treat of leases under 
 the running or general title of deeds. But in common parlance, 
 where it is said a man has a lease of property, nothing more is meant 
 than that he has a term of estate for years in the premises, which 
 may be by deed or a writing not under seal. The former is of itself 
 a lease; the latter, only written evidence of one; and this distinction 
 will be found in several of the cases when the question has been whether 
 the instrument did or did not require a stamp."^ There are two 
 common forms in which leases are made — called indentures and deeds- 
 poll. An indenture is supposed to be executed by all the contracting 
 parties — there being as many copies as there are parties to the con- 
 tract. Formerly each copy was indented or cut so that they might 
 tally with one another. The copy given to the tenant is the original 
 and that kept by the landlord the counterpart; but, as a practical 
 matter, they are all originals. A deed-poll is a single instrument 
 without duplicate copies and is executed by the grantor or lessor alone. 
 An indenture has been defined to be a formal written instrument 
 made between two or more persons in different interests, as opposed 
 to a deed-poll which is one made by a single person, or by several 
 having similar interests.^ 
 
 ^Mayberry v. Johnson, 15 N. J. = Bouvier's Law Diet. Rawle's 
 L. 116, 121, per Hornblower, C. J. Rev. 
 Compare Allen v. Lambden, 2 Md. 
 279. 
 
 69
 
 I 58] THE INSTRUMENT OF DEMISE. 70 
 
 In construing a covenant in a lease by indenture, the words of the 
 covenant are to be taken, however set down in the instrument, as the 
 words of the party to whom they properly belong, or if they properly 
 belong to both, as the words of both; the words of an indenture, be- 
 ing the words of either party, are not to be taken most strongly 
 against the one or beneficially for the other, as the words of a deed- 
 poll are.^ Notwithstanding this rule of construction, the lessor is 
 to be regarded as the grantor in a deed of indenture; so that where 
 the lessor and lessee each sign one part of the indenture and then 
 exchange copies without signing the copy received, the part entitled 
 to be recorded is that signed and acknowledged by the lessor.* When 
 for any reason the counterpart delivered to the lessee was not properly 
 signed by a person duly authorized, it would seem that the lessor's 
 signature to the part retained by him would answer every purpose. 
 But the objection was made and sustained that that part would be 
 invalid to charge the lessor for want of a proper delivery to the 
 lessee.^ 
 
 In Missouri it seems that leases by deed-poll have been abolished 
 by statute. A writing prepared by one of the parties and sent to the 
 other, but for any reason left unsigned by such other party, is not an 
 agreement made in writing signed by the parties thereto as demanded 
 by the statute in that state. It cannot be proved that a tenant agreed 
 to take the premises for a period of years except by a writing signed by 
 him evidencing such agreement.^ 
 
 § 58. Lease distinguished from other instruments.— Though a 
 conveyance may be technically in the form of a lease, yet if it is ap- 
 parent that it was never the intention of the parties to create the 
 substantial relation of landlord and tenant between them, the instru- 
 ments, whatever you please to call them will, in effect, create a fee. 
 Thus where they run to the lessee, to his heirs and assigns, as long 
 as wood grows and water runs, reserving as rent one barley corn, to 
 all substantial purposes, the leases, if you call them such, convey the 
 fee. In form they were only leases. But no rights or duties which 
 ordinarily exist between landlord and tenant were created by them. 
 They were permanent in their character ; the lessee was not bound to 
 keep in repair or surrender up the premises ; and no rent was reserved 
 for the non-payment of which an ejectment could be maintained. 
 
 * Beckwith v. Howard, 6 R. I. 1. ' Chesebrough v. Pingree, 72 
 
 * Dudley v. Sumner, 5 Mass. 438, Mich. 438, 40 N. W. 747. 
 
 474. Combs v. Midland Trans. Co., 58 
 
 Mo. App. 112.
 
 71 FORMAL PARTS. [§ 58 
 
 The whole deed must be construed together, and most strongly against 
 the grantor where there is room for construction^ On the other 
 hand where a granting clause reads that one "hath granted, bargained, 
 sold, released and confirmed," this is not conclusive against an instru- 
 ment's being a lease ; because the entire instrument must be examined 
 to determine this question. If an annual rent is reserved, and a 
 covenant to pay the same and ordinary clauses for re-entry and distress 
 are inserted, the instrument is a lease and the relation of landlord and 
 tenant is created.^ In construing another instrument the court de- 
 cided that an estate less than a freehold was intended to be conveyed 
 when the granting words were those applicable to an estate for years; 
 the interest was to take effect in f uturo ; and the lessees were to pay 
 taxes for one year and were to waive notice to quit.^ Long continu- 
 ance of an interest will not of itself, convert what would otherwise 
 be a demise into an estate in fee. The lease is a perpetual one where 
 the lessor demises for such time as the lessee shall pay the rent and 
 fulfill other stipulations, and the lessee binds himself to pay the rent 
 and comply with the stipulations without limitation as to time. It 
 necessarily follows that the lease continues until put an end to by 
 the mutual agreement of the parties to it or till the lessor may elect 
 to claim a forfeiture, but the instrument is nevertheless a lease." An 
 owner of real estate may convey the fee, receiving the consideration 
 in form of a perpetual annual rent, with forfeiture upon non-payment, 
 and he may impose by deed a flowage servitude for a mill pond for 
 such time and upon such conditions as are satisfactory to him. If the 
 locus is a piece of unimproved land and there is no expectation that 
 the grantee will make any other use of it than to impose upon it such 
 burden of water as he may wish to store, a conveyance in the form of 
 a demise by deed sealed, witnessed, acknowledged, and recorded, will 
 take effect as a grant of an easement appendant to the mill. The 
 grant would be to the present mill owner, and to such other persons 
 as may own it ; the grantor covenanting for himself and his heirs and 
 assigns that the grantee and those acquiring title from him shall 
 quietly enjoy the easement for such time as they shall observe the con- 
 
 ' Propagation Society v. Sharon, of the word heirs. 1 Jones R. P., 
 
 28 Vt. 603; Stevens v. Dewing, 2 Vt. § 575. 
 
 112; Arms v. Burt, 1 Vt. 303. Of « Tyler v. Heidorn, 46 Barb. (N. 
 
 all the states in which the com- Y.) 439. 
 
 men law prevails as to words of in- "Barney v. Keith, 4 Wend. (N. 
 
 heritance, Vermont seems to be the Y.) 502. 
 
 only state in which an estate in »»Folts v. Huntley, 7 Wend. (N. 
 
 fee can be created without the use Y.) 210.
 
 § 59] THE INSTRUMENT OF DEMISE. 72 
 
 dition of the grant. The grant to a mill owner of the specific right 
 to flow land for a time having no more definite term of continuance 
 than the grantee's necessities offends no rule of law or of public 
 safety." 
 
 § 59. Technical requirements of form. — No particular words are 
 necessary to create a lease ;^^ and it is not necessary that the word 
 "lease" be used.^^ Any written instrument expressing the agreement 
 of the parties, signed by one and accepted and acted on by the other, 
 will be obligatory upon both.^* Whatever words are sufficient to ex- 
 plain the intent of the parties that the one shall divest himself of the 
 property and the other come into it for a definite time, whether they 
 run in the form of a license, covenant, or agreement, will in construc- 
 tion of law amount to a lease as well as if the most pertinent words 
 were used.^^ An instrument in the form of a receipt acknowledging 
 the payment of money as rent for a house has been held to be a lease. 
 In the case reaching this conclusion a receipted bill headed "A. B. 
 bought of C. D." bore at the foot this signed memorandum, "Left 
 hay and oats in stable on street, where A. B. takes possession. Eent 
 to begin Oct. 1, 1870, for one year at $150." It was held that this 
 memorandum was a lease.^^ 
 
 So an indorsement of payment on the back of a title bond reciting 
 that this amount was to go as rent in case the occupant did not elect 
 to take title at the end of a specified period, was held to be a lease. 
 The instrument was modified at the time of its execution by this in- 
 dorsement. This modification utterly destroyed the obligatory charac- 
 ter of the bond as such, and practically converted it into a lease. 
 Where a lease is given containing no express provision respecting its 
 duration, but providing for the payment of a sum in gross, which 
 
 "Tuttle V. Harry, 56 Conn. 194, " Munson v. Wray, 7 Blackf. 
 
 14 Atl. 209. (Ind.) 403, 404; Watson v. O'Hern, 
 
 ^= Alcorn v. Morgan, 77 Ind. 184; 6 Watts (Pa.) 362; State v. Page, 
 
 Maverick v. Lewis, 3 McCord (S. 1 Speer (S. Car.) 408; Upper Ap- 
 
 Car.) 211; Upper Appomattox Co. pomattox Co. v. Hamilton, 83 Va. 
 
 v. Hamilton, 83 Va. 319, 2 S. E. 319, 2 S. E, 195; Branch v. Doane, 
 
 195; Weaver v. Wood, 9 Pa. St. 17 Conn. 402; Moshier v. Reding, 
 
 220; Folden v. State, 13 Neb. 328, 12 Me. 478; Peck v. Hiler, 24 Barb. 
 
 14 N. W. 412. (N. Y.) 178; Boone v. Stover, 66 
 
 "Bussman v. Ganster, 72 Pa. St. Mo. 430; Horner v. Leeds, 25 N. J. 
 
 285; Moore v. Miller, 8 Pa. St. 272; Law 106, 112; Williams v. Cleaver, 
 
 West Chicago St. R. Co. v. Morri- 4 Houst. (Del.) 453; Gibbons v. 
 
 son &c. Co., 160 111. 288, 43 N. E. Dayton, 4 Hun (N. Y.) 451. 
 
 393. i« Eastman v. Perkins, 111 Mass. 
 
 "Alcorn v. Morgan, 77 Ind. 184. 30; Alcorn v. Morgan, 77 Ind. 184.
 
 73 FORMAL PARTS. [§59 
 
 shall be credited upon rent at a given rate per month, in the absence 
 of any other evidence of intention, it may be fairly inferred that the 
 parties intended to create a tenancy for the term for which the sum 
 named would pay at the stipulated rate per month.^^ In an indict- 
 ment for forgery of a signature to a lease it was urged that the fabri- 
 cated writing was invalid as a lease within the meaning of the statute. 
 But the court replied that "the instrument was clearly a lease, which 
 is properly a conveyance of any lands or tenements (usually in con- 
 sideration of rent or other annual recompense) made for life, for 
 years or at will. Though no formal words are requisite to a lease at 
 common law, the usual words of operation in it are 'demise, grant 
 and to farm let.' "'^^ 
 
 A grant of a franchise by the state for a term of years is not, 
 however, a lease. By virtue of an act for building bridges, a contract 
 was made by public commissioners for the erection of a bridge and 
 the grant of a right to take tolls for a fixed period. This was not a 
 lease although the operative words were words proper to create a term. 
 It was simply a contract on the part of the commissioners, acting as 
 trustees for the state that the second party, as a consideration for 
 building the bridges, should have the tolls for a certain number of 
 years.^^ So the vote of a town authorizing the selectmen "to let the 
 town wharf as heretofore" did not constitute a lease. The town could 
 make grants of real estate by corporate vote; and a fortiori, if they 
 could grant the fee they could pass any subordinate interest in the 
 estate. But this vote did not purport to pass any interest in the 
 locus in quo, and could not by any reasonable construction be con- 
 strued to amount to a lease. No consideration was fixed, and no 
 grantee or lessee named. No person, therefore, by the force of this 
 act of the town, without an execution of the authority contained in 
 it, could pretend to claim any interest in the estate.-** 
 
 An agreement by subscribers to pay an annual bonus to a landowner 
 to induce him to let a building for less than its actual rental value is 
 not a lease and does not make the subscribers tenants of the land- 
 owner so that they would be bound by privity of estate to pay the 
 bonus to his assignee. The contract created no relation resembling 
 that of landlord and tenant between the parties. The subscribers 
 
 " Barrett v. Johnson, 2 Ind. App. '" Proprietors &c. v. State, 22 N. J. 
 
 25, 27 N. B. 983. Law 593, affirming 21 N. J. Law 
 
 "Folden v. State, 13 Neb. 328, 14 384. 
 
 N. W. 412, citing 1 Brown & Had- =" Inhabitants of Hingham v. 
 
 ley's Com. Am. Ed. 744. Sprague, 15 Pick. (Mass.) 102,
 
 §§' 60, 61] THE INSTKUMEXT OF DEMISE. 74 
 
 acquired no right or interest in the premises. The money agreed to 
 be paid was not payable as rent.-^ 
 
 § 60. Date of a lease. — It is not essential to the validity of a lease 
 that it should contain a statement of the date when it was executed. 
 As long ago as the time of Lord Coke it was said : "And the date of 
 a deed is not of the substance of a deed ; for if it hath no date or hath 
 a false or impossible date, as the thirtieth day of February, yet the 
 deed is good for there are but three things of the essence and sub- 
 stance of a deed, that is to say writing in paper or parchment, seal- 
 ing, and delivery."^^ A deed does not take effect from its date but 
 from its delivery, and while the presumption is that it was delivered 
 on the day of its date, it is always competent to show that the date 
 inserted in the deed was not the date of its delivery. ^^ Further- 
 more it may be shown that a mistake was made in writing the date 
 of execution in the instrument.-* 
 
 In a lease for a year, the term will commence from the day of the 
 date if not otherwise expressed. The date of the written instrument 
 is to be regarded as the date of the commencement of the term of the 
 lease; no other time being indicated by the agreement. This con- 
 struction is in strict analogy to what is the uniform construction 
 given to notes and other instruments for the payment of money or 
 other thing, bearing a specific date and payable within a specific 
 period.^^ 
 
 When there was a verbal letting and no time was set for the com- 
 mencement of the term, it was held that the tenancy began when the 
 tenant went into possession.^*' 
 
 § 61. Lease executed on Sunday. — The statutes forbidding the 
 transaction of secular business upon the Lord's Day render a lease 
 executed on Sunday void. Just Avhat the rights of the parties are 
 when a tenant occupies and pays rent under a Sunday lease is a mat- 
 ter of some dispute. In one case a person executed a lease and entered 
 
 "Sanborn v. First Nat. Bank, 9 A lease from blank day of blank 
 
 Colo. App. 245, 47 Pac. 660. A. D. 1856 "for and during and until 
 
 "Goddard's Case, 2 Coke 5. the full end and term of eighteen 
 
 ^^ Blake v. Fash, 44 111. 302; Green months," would expire as soon as 
 
 v. Robinson, Wright (Ohio) 436; eighteen months from the last day 
 
 Jones on Real Property, §§ 1238, of the year 1856. Huffman v. Mc- 
 
 1239. Daniel, 1 Ore. 259. 
 
 "■* Jackson v. Schoonmaker, 2 =" Eberlein v. Abel, 10 111. App. 
 
 Johns. (N. Y.) 230. 626; Feyreisen v. Sanchez, 70 III. 
 
 ==°Keyes v. Dearborn, 12 N. H. 52. App. 105.
 
 75 FORMAL PARTS, [§ 62 
 
 into possession of the premises on Sunday, continuing to occupy 
 and pay rent according to tlie terms of tlie lease. The trial court 
 thought that by continuing in possession and paying rent he ratified 
 the lease and made it a valid contract. But upon appeal it was 
 held that this decision of the court was clearly wrong.^^ The lease 
 was absolutely void and was incapable of ratification.^^ The parties 
 could not ratify an illegal contract, though they might make a new 
 one with reference to the same subject on a subsequent week-day.^® 
 "But any arrangement or agreement between the parties on any sub- 
 sequent day, whether direct and express, or implied from their deal- 
 ings with each other's property, would be a new and independent 
 transaction. It is not quite accurate to speak of the ratification by 
 a party of something the law forbids, and which is made void, not 
 from any want of his full consent but in spite of it."^" This does 
 not mean that the relation of landlord and tenant cannot be estab- 
 lished in a case of this kind for it may be presumed from the con- 
 duct of the parties in reference to each other and in respect to the 
 lands which are the subject of the rent. "Every other relation in 
 life may be presumed from circumstances, and conduct of the parties, 
 and we are unable to perceive," said the Alabama court, "any good 
 reason why that of landlord and tenant should form an exception 
 to the rule." Although the agreement made on Sunday is void for 
 immorality, yet it may be looked to as a circumstance, with others, 
 to account for the subsequent conduct of the parties with reference 
 to the possession of the premises.^^ 
 
 When the tenant enters into occupation of the premises on a secular 
 day, he will be liable for rent in an action of use and occupations^ 
 on proof of the value of such occupation.^^ 
 
 § 62. Alteration of lease. — The effect of an alteration in a lease 
 depends on the materiality of the change and the purpose for which 
 it is made. Thus if a lessee increases his estate by fraudulently alter- 
 ing his lease in a material part subsequent to its execution, he thereby 
 destroys all his future rights under the lease, cither to retain posses- 
 
 ^Vinz V. Beatty, 61 Wis. 645, 21 Pope v. Linn, 50 Me. 83; Plaisted 
 
 N. W. 787. V. Palmer, 63 Me. 576; Vinz v. Beat- 
 
 "« Thomas v. Hatch, 53 Wis. 296, ty, 61 Wis. 645, 21 N. W, 787. 
 
 10 N. W. 393; Troewert v. Decker, =' Rainey v. Capps, 22 Ala. 288, 291. 
 
 51 Wis. 46, 8 N. W. 26; Melchoir v. == Stebbins v. Peck, 8 Gray 
 
 McCarty, 31 Wis. 252. (Mass.) 553. 
 
 =* Harrison v. Colton, 31 Iowa 16. ^-^ Ainsworth v. Williams, 111 Wis. 
 
 ="> Day v. McAllister, 15 Gray 17, 86 N. W. 551. 
 (Mass.) 433, 434. To same effect see
 
 § 63] THE INSTEUMENT OF DEMISE. 76 
 
 sion of the premises or to preclude the lessor from entering upon 
 them.^* A grantee who alters a deed in a material respect cannot 
 avail himself of such deed in evidence. ^^ But alterations consisting 
 of changes in dates referring to the time when the lease was executed 
 which do not effect the right of the lessee to occupy the premises 
 do not invalidate the lease. Thus, where a term was to commence 
 at a specified future period, and alteration in the alleged date of 
 execution would not change the rights of the parties and would not 
 preclude the party making such alteration from claiming under the 
 lease.^^ 
 
 § 63. Eeservations and exceptions. — It is valid and not unusual 
 for a lessor to reserve certain rights in the land demised, such as the 
 right to drain over it from his own adjoining land.^^ The difference 
 between a reservation and an exception has been stated by Lord Coke 
 as follows: "There is a diversity between a reservation and an ex- 
 ception. The exception is ever of part of the thing granted, and of 
 a thing in esse while a reservation is always of a thing not in esse but 
 newly created or reserved out of the land or tenement demised," and 
 he adds "that sometime the word reserved hath the force of saving 
 or excepting."^^ It is valid and enforcible to except from the opera- 
 tion of the general granting clause of a lease such portions of the 
 premises as the minerals upon them,^® or the trees growing thereon.*** 
 Such an exception is construed against the lessor and in favor of 
 the lessee,*^ but the incidental privileges necessary to the enjoy- 
 ment of the thing excepted pass with the exception.*^ The instru- 
 ment is to be construed, as far as possible, beneficially for the lessee 
 so as to enable him to use the premises for the purpose intended. 
 But it must also be construed with a just reference to the exception, 
 in favor of the lessor.*^ The only restriction on the practice of ex- 
 cepting a part of the premises covered by the general granting clause 
 of a lease is that you cannot except the very thing specifically granted 
 
 ^Chesley v. Frost, 1 N. H. 145; Graham, L. R. 2 H. L. Sc. 166; 
 
 Withers v. Atkinson, 1 Watts (Pa.) Ramsay v. Blair, L. R. 1 App. Gas. 
 
 236; Lewis v, Payn, 8 Cow. (N. Y.) 701. 
 
 71. ^oLegh v. Heald, 1 B. Ad. 622; 
 
 ""Lee V. Lee, 83 Iowa 565, 50 N. Bullen v. Denning, 5 B. & G. 842, 
 
 W. 33. HE. G. L. 705. 
 
 "Chadwick v. Marsden, L. R. 2 "Cardigan v. Armitage, 2 B. & 
 
 Exch. 285. G. 197, 9 E. G. L. 93; Bullen v. Den- 
 
 ^ Go. Litt. 47a. ning, 5 B. & G. 842, 11 E. G. L. 705. 
 
 «»Garhart v. French, Hill & D. *^ Shep. Touch, 100. 
 Supp. (N. Y.) 17; Hamilton v.
 
 77 FORMAL PARTS. [§63 
 
 in terms ; you cannot destroy your grant. But where a general grant 
 is followed by a detailed description of the parts included in it, an 
 exception of one of these parts is valid because the enumeration was 
 surplusage.** So a further description of a close by stating the num- 
 ber of acres or poles it contains, does not invalidate an exception of 
 a part of it, if it was the evident intention of the parties that the 
 part mentioned as excepted should not pass to the lessee.*^ In a lease 
 of premises under the description of "the glebe farm," an exception 
 was made of thirty-seven acres which were not specified. The court 
 decided that the contract was not void for uncertainty but that the 
 right of selection belonged to the lessor. However, he could not 
 exercise this right oppressively so as to interfere with the benefiicial 
 use of the rest of the farm.*" 
 
 In the United States exceptions of public roads or of lots desig- 
 nated by number or of a specified number of acres out of a larger 
 tract covered by the granting clause have been held good.*^ By such 
 an exception the lessor continues to retain the legal title and has a 
 right to bring trespass or forcible detainer against a stranger who in- 
 terferes with his right of possession.*^ However, a clause in a lease 
 of a hotel, giving the lessor a right to name and occupy a room and 
 obtain board there was held to be a mere covenant on the part of the 
 lessee and not a reservation of a specific portion of the premises 
 from the operation of the lease.**^ The reservation of a chamber in 
 a farm house by a lessor gave him no right in the yard other than 
 that of passage-way to and from it for himself. The right of passing 
 with a horse and wagon was denied him.^** A provision in an oil 
 lease that no wells were to be drilled within a certain distance of 
 a house was held not to be an exception but merely to be a limita- 
 tion upon the right of the lessee to bore wells.^^ It was urged that 
 the same construction should be put upon a lease which excepted ten 
 acres described by metes and bounds, but the court refused to sanc- 
 
 *^ Dexter v. Manley, 4 Cush. Va. 600, 9 S. E. 922; Greenleaf v. 
 
 (Mass.) 14. Birth, 6 Pet. (U. S.) 302. 
 
 " Leigh v. Shaw, 3 Dyer 264b, n. ^^ Jordan v. Staples, 57 Me. 352; 
 
 *=* Cochrane v. McCleary, Ir. R., 4 Bowers v. Cherokee Bob, 45 Cal. 
 
 C. L. 165; Ellis v. Lord Primate, 16 495. 
 
 Ir. Ch. 184. '" Polack v. Shafer, 46 Cal. 270. 
 
 *« Jenkins v. Green, 27 Beav. 437. ■'"Fort v. Brown, 46 Barb. (N. Y.) 
 
 «Munn V. Wonall, 53 N. Y. 44; 366. 
 
 Roberts v. Robertson, 53 Vt. 690, ^^ Westmoreland &c. Co. v. DeWitt, 
 
 38 Am. R. 710; Spillman v. Brown, 130 Pa. St. 235, 18 Atl. 724. 
 45 Fed. 291; Low v. Settle, 32 W.
 
 §■ 64] THE INSTRUMENT OF DEMISE. 78 
 
 tion it, holding that this clause took effect as an exception and title 
 to the tract described remained in the lessor.^ - 
 
 It does not invalidate an otherwise valid exception in a lease that 
 the reason stated for making it fails. Thus certain lots were ex- 
 cepted because they were subject to outstanding leases, and the ex- 
 ception took effect according to its terms although the outstanding 
 leases were not in writing and therefore incapable of enforcement.^^ 
 A lease of the hunting privilege on land is not rendered invalid by the 
 reservation of a right of pasturage to the lessor; the exercise of these 
 two privileges not being necessarily inconsistent with one another.^* 
 
 § 64. Stipulation for attorney's fee. — The general right of indi- 
 viduals of suitable age and capacity to enter into any stipulation 
 they see fit to undertake enables persons to contract to pay attorney's 
 fees which are incurred by reason of their own default. Such agree- 
 ments are not against public policy. So a stipulation in a lease for 
 the payment of attorney's fees in case the employment of one becomes 
 necessary by reason of the default of the lessee is valid. Under such 
 a provision the lessor could recover a reasonable attorney's fee in an 
 action for rent.^^ In Indiana it is provided by statute that any and 
 all agreements to pay attorney's fees, depending upon any condition 
 therein set forth and made part of any written evidence of indebted- 
 ness are illegal and void.^® After this act had been passed, an at- 
 tempt was made to collect attorney's fees under a lease reading: 
 "And the said party of the second part agrees to pay attorney's fees 
 and other costs pertaining to this lease, or the enforcement of its 
 provisions." It was. asserted that this promise was conditional and 
 not absolute and hence forbidden. But the court replied that an 
 implied condition that the lease may be brought into litigation is 
 not sufficient to bring the contract within the inhibition of the statute. 
 To be controlled by the statute two things are clearly and unequiv- 
 ocally required. First. The agreement to pay attorney's fees must 
 depend on a condition. Second. The condition must be set forth in 
 the instrument. The foregoing stipulation to pay attorney's fees was 
 held to be unconditional and therefore valid.^^ The lessor must suc- 
 ceed in his action in order to justify his conduct in bringing it and if 
 
 =- Spillman v. Brown, 45 Fed. 291. 8 So. 30; Fox v. McKee, 31 La. Ann. 
 
 "2 Hargrove v. Miller, Busb. L. 67. 
 
 (N. Car.) 68. =^ Burns' Rev. Stat., § 7532. 
 
 " Kellogg v. King, 114 Cal. 378, " Talbott v. English, 156 Ind. 299, 
 
 46 Pac. 166. 59 N. E. 857. 
 
 "Richard v. Bestor, 90 Ala. 352,
 
 79 FORMAL PARTS. "[§ 65 
 
 the suit be for rent he must show that some rent was due over and 
 above all counter-claims. A clause of this character would not entitle 
 the lessor to an allowance for attorney's fees when, by reason of a 
 set-off, nothing was due him on the rent.^^ Moreover a provision for 
 fees will not be extended by construction and where the lease was can- 
 celled during the term, it would apply only to the collection of such 
 rent as became due prior to the cancellation.^'* 
 
 § 65. Consideration. — When a demise is made by an instrument 
 under seal, the question of consideration for the grant becomes im- 
 material, as the court will not inquire into the lack of consideration 
 in a sealed instrument.*'" When the demise is in writing but not under 
 seal, the grant of the leasehold estate to the lessee is an abundant 
 consideration for his undertaking to pay rent.^^ On the other hand 
 the payment of rent is sufficient consideration for the demise, and 
 so is the payment of something as the equivalent of rent. Thus a 
 lease of the mortgaged premises was executed by a mortgagor to a 
 mortgagee and it was urged that the lease was void as without con- 
 sideration. This was clearly without weight. The lease was a formal 
 one by the owner of the land or of an interest in it, who was entitled 
 to possession, and was made in consideration of what was, or was 
 equivalent to an agreement to pay rent by the mortgagee.*'- So a 
 lease executed in consideration of the payment of one dollar and the 
 erection of valuable machinery is sufficiently supported.*'^ A lease 
 given in consideration that lessee should build bridges and roads and 
 keep off trespassers is supported by ample consideration.^* 
 
 An early Illinois statute authorizing the plea of want of considera- 
 tion in actions on notes and "other instruments in writing" was held 
 not to include leases because such instruments were well known at 
 the time the statute was passed and it would have been included by 
 name if it had been the intention of the legislature to include it."^ 
 
 The circumstance that a lease under seal purports to be in considera- 
 tion of an annual rent does not preclude the lessor from showing that 
 it was given and accepted in satisfaction of a previously existing 
 claim for damages under a bond. There is nothing absurd or re- 
 
 5' Taylor v. Lehman, 17 Ind. App. *= Chadbourn v. Rahilly, 34 Minn. 
 
 585, 46 N. E. 84, 47 N. E. 230. 346, 25 N. W. 633. 
 
 =»Fox V. McKee, 31 La. Ann. 67. "' Herrington v. Wood, 6 Ohio Cir. 
 
 ^oDrew V. Buck, 12 Hun (N. Y.) Ct. 326. 
 267. " Gilpin v. Adams, 14 Colo. 512, 
 
 ^ Hill V. Woodman, 14 Me. 38. 24 Pac. 566. 
 
 «' Dunbar v. Bonesteel, 4 111. 32.
 
 §§ 66, 67] THE INSTRUMENT OF DEMISE. 80 
 
 pugnant in such an agreement or understanding and to aver it is not 
 to set up anything inconsistent with the deed.®^ 
 
 § 66. The true construction of written leases is to be declared by 
 the court and not submitted to the finding of the jury.*^^ This is in 
 conformity with the general rule that, where no facts are in dispute, 
 written instruments shall be construed by the court, and rests upon 
 the ground that the court is better adapted for dealing with questions 
 of construction. So it is the province of the court to inform the jury 
 of the true import of a written lease,^^ But when there is conflict- 
 ing testimony regarding a parol lease, it should be left to the jury 
 to determine what the terms of the lease are.^^ So in a case where 
 a lease had been destroyed and the contents were proved by 
 parol evidence, it was held to be for the jury to determine from the 
 evidence what were the terms of the lease and to determine under 
 proper instructions from the court what was their legal effect.'^^ 
 
 § 67. The lease must be construed as a whole, and such a construc- 
 tion placed upon it as will render all its clauses harmonious and con- 
 sistent. Every covenant is to be expounded with regard to its con- 
 text. In conformity with this rule and in support of the apparent 
 intent of the parties, covenants in large and general terms have been 
 frequently narrowed and restrained.'^^ "Where the demise is in writ- 
 ing, the writing itself is primarily to be considered in ascertaining the 
 intention of the parties, and all its different provisions are to be read 
 and construed together, so as, if possible, to make a sensible and con- 
 sistent whole."^- In certain cases it is necessary that a lease be read 
 in the light of the previous agreement out of which it arose, in order, 
 if practicable, to give effect to the actual understanding and agreement 
 
 **McIntyre v. City of Kingston, '"Millan v. Kephart, 18 Gratt. 
 
 4 U. C. Q. B. 471. (Va.) 1. 
 
 •^^Durr V. Chase, 161 Mass. 40, 36 '^ Iggulden v. May, 7 East 237; 
 
 N. E. 741; Emery v. Owings, 6 Gill Harlow v. Lake Superior Iron Co., 
 
 (Md.) 191; Folsom v. Cook, 115 Pa. 86 Mich. 105; Barrett v. Johnson, 
 
 St. 539, 9 Atl. 93; Stoddard v. 2 Ind. App. 25, 27 N. E. 983; Cage 
 
 Waters, 30 Ark. 156; Brown v. v. Paxlins, 1 Leon. 116; Broughton 
 
 Schiappacasse, 115 Mich. 47, 72 N. v. Conway, Moore 58. 
 
 W. 1096; Morris v. Kettle, 57 N. J. "Street v. Chicago Wharfing &c. 
 
 Law 218, 30 Atl. 879. Co., 157 111. 605, 41 N. E. 1108, 
 
 «« Great Pond &c. Co. v. Buzzell, affirming 54 111. App. 569, per 
 
 39 Me. 173. Baker, J. 
 
 ^ State V. Forsythe, 89 Mo. 667, 1 
 S. W. 834.
 
 81 FORMAL PARTS. [§ 68 
 
 of the parties.'^^ Words and sentences should be construed to make 
 sense and reason.'^* Thus a lease of land and water-power at a mill 
 pond, near which the landlord operated a tannery and fulling mill, 
 contained the clause "meaning to reserve water at all times to work the 
 bark mill, etc., as now used." The last three words were construed to 
 limit the reservation to water then actually in use and not to the 
 amount of water for which the mill had a capacity at that time.'^^ 
 Where in a lease of a mill there was a reservation of a lien "on all 
 goods, chattels and oilier property" the expression "other property" 
 was construed to refer to such other chattels personal as should be 
 brought upon the land and did not include a building and fixtures 
 therein.^ ^ 
 
 § 68. Custom of the country. — Contracts creating the relation of 
 landlord and tenant should not be treated differently, in respect to 
 their construction, from other contracts, and the meaning and effect 
 of a lease is to be gathered from the language used. The plain mean- 
 ing of such language cannot be changed by evidence of the custom of 
 the country. It would be impossible to administer justice according 
 to the real intention of the parties by endeavoring to make custom on 
 the subject the rule for interpreting their contract, because witnesses 
 disagree as to what the custom is." The general rule is that the plain, 
 ordinary and popular sense or meaning of the words or terms, used 
 by the parties, shall be taken in preference to their strict, grammatical 
 and etymological meaning, unless the subject matter of the contract 
 has acquired, by the usage of trade, or the like, a peculiar sense, dif- 
 ferent from its popular meaning ; and in such case, the peculiar sense 
 of such language shall, in that particular case, prevail." A farmer's 
 custom that the lessee in consideration of clearing land, shall have the 
 right to sell the cut timber, is good, and when clearly established, pre- 
 vails where the contract is silent. The contract in the case where this 
 
 " Reading Iron Works, 150 Pa. St. the expression used meant the same 
 
 369, 24 Atl. 617. thing; that the elevator would be 
 
 '* Norris v. Showerman, 2 Doug, operated, and thereby induced lessee 
 
 (Mich.) 16. to accept the lease, it was held that 
 
 " Wyman v. Farrar, 35 Me. 64. the lease should be interpreted to 
 
 '« First Nat. Bank &c. v. Adam, mean that the elevator would be op- 
 
 138 111. 483, 28 N. E. 955, reversing erated by the lessor. Schmohl v. 
 
 34 111. App. 159. Where covenant Fiddick, 34 111. App. 190. 
 
 in lease to put in an elevator did •■ Iddings v. Nagle, 2 W. & S. 
 
 not contain an express provision (Pa.) 22. 
 
 that the lessor should "maintain" "Robertson v. French. 4 East 
 
 it, but the agent of lessor said that 130, 136, 5 Vin. Abr. 510. 
 Jones L. & T.— 6
 
 §■§ 69, 69a] THE INSTRUMEXT OF DEMISE. 82 
 
 conclusion was reached contained no agreement that the lessee was to 
 account for any of the timber. On the contrary, he was bound to clear 
 the land, and might have burnt the fallen timber and thus have com- 
 plied with his contract. Furthermore, the evidence as to the custom 
 was uncontradicted.^^ 
 
 § 69. Inconsistent and contradictory clauses. — Where a lease is on 
 a printed form filled in with writing and the written provisions are 
 inconsistent with the printed part, it is the usual rule of construction 
 that such as are written will control those that are printed on the 
 presumption that the latter were left by inadvertence.^" But if they 
 can all be retained and interpreted together, none are to be rejected. 
 In accordance with the latter rule a printed exemption from liability 
 for fire and unavoidable accidents was held to limit a written cove- 
 nant to repair, such limitation being consistent with the written provi- 
 sion.*^ A written provision giving the lessee an option to renew is not 
 inconsistent with a printed covenant on his part to yield up possession 
 at the end of the term. The provision of such a printed clause and of 
 that in writing may each be given effect. If such action under the writ- 
 ten clause as would operate to extend the lease is not taken, the printed 
 clause takes effect at once, otherwise it would take effect at the end 
 of the renewal term.*^ Where there are two printed clauses to the 
 same effect, the erasure of one does not, however, raise the presumption 
 that the other was left in by inadvertence. So, in case a lease was on 
 a printed form, and the covenant not to sub-let had been erased, but 
 a subsequent clause giving the lessor a right to re-enter in case lessee 
 sub-let without consent was left unchanged, it was held that the 
 erasure of the covenant did not raise an inference that the condition 
 was intended to be of no effect.®^ 
 
 § 69a. By the term "relet," when used in an alternative provision 
 for the purchase of improvements, the parties mean a new letting for 
 a fixed and definite term, such as was the term created by the lease. An 
 agreement at the expiration of the lease which creates a tenancy at will, 
 terminable at any time by the lessor by a month's notice, cannot be re- 
 
 " Duncan V. Blake, 9 Lea (Tenn.) «= Seaver v. Thompson, 189 111. 
 
 534. 158, 59 N. E. 553, affirming 91 111. 
 
 '"Ball V. Wyeth, 8 Allen (Mass.) App. 500. 
 
 275; Seaver v. Thompson, 189 111. "" Pond v. Holbrook, 32 Minn. 291, 
 
 158, 59 N. E.-553, 91 111. App. 500. 20 N. W. 232. See § 392. 
 
 «^Ball V. Wyeth, 8 Allen (Mass.) 
 275.
 
 83 FORMAL PARTS. [§ 70 
 
 garded as such a reletting as was intended by the parties to the lease 
 in the provision under consideration, and which should have the effect 
 of releasing the lessor from his obligation to pay for improvements.®* 
 Where two leases between the same parties are executed at the same 
 time and relating to the same subject matter, both are to be construed 
 together as one instrument.*^ 
 
 § 70. Reformation of lease. — The general principle that an error 
 in a written instrument made by mutual mistake of the parties thereto 
 will justify its reformation by a court of equity is applicable to a 
 lease.*® Thus it has been held to be a valid defense to an action for 
 rent that the written lease did not contain the agreement of the par- 
 ties. The court dismissed the suit and ordered that the lease be cor- 
 rected and reformed.*^ It is a further well established principle that 
 to justify the reformation of a written lease, the alleged mistake or 
 omission must be shown by clear, unequivocal and satisfactory proof.** 
 Relief was not granted when the parties to the transaction directly 
 disputed one another as to the actual agreement and no tliird person 
 was present at the negotiations,*® The inquiry in such a case is always ' 
 directed to the ascertainment of what was really the object of the 
 agreement. The question is not whether there has been a previous 
 agreement in parol, but whether the subject of the agreement as made 
 was that stated in the lease, or some other, which the party through 
 some mistake failed accurately to describe.®" A lease which by reason 
 of the ignorance and mistake of the scrivener failed to conform to the 
 oral agreement made by the parties was reformed where the evidence 
 
 '^Moseley v. Allen, 138 Mass. 81. kins Univ., 17 Wash, 160, 49 Pac. 
 The word "term," though appropri- 247; Green Bay &c. Co. v, Hewitt, 
 ate to designate a lease-estate, will 62 Wis. 316, 21 N. W. 216, 22 N. W. 
 yet be controlled by the plain mean- 588; Rose Clare Lead Co. v. Had- 
 ing of the contract, and may mean den, 54 111. 260; Pomeroy's Eq. Jur., 
 the end of the term for which one § 852, et seq. 
 
 is employed. State v. Page, 1 Speer " Wyman v. Sperbeck, 66 Wis. 
 
 (S. Car.) 408. 495, 29 N. W. 245, 
 
 «=Cook County &c. Co. v. Labahn ^» Chapman v. Dunwell, 115 Iowa 
 
 Brick Co., 92 III. App. 526; Wilson 533, 88 N. W. 1067; Murphy v. First 
 
 V. Roots, 119 111. 379, 386, 10 N. E. Nat. Bank, 95 Iowa 325, 63 N. W. 
 
 204. Compare Gardt v. Brown, 113. 702; Wyman v. Sperbeck, 66 Wis. 
 
 111. 475. 495, 29 N. W. 245; Harter v. Chris- 
 
 *" Nielander v. Chicago &c. R. Co., toph, 32 Wis. 245. 
 
 114 Iowa 420, 87 N, W. 285; Silbar «' Chapman v. Dunwell, 115 Iowa 
 
 .V. Ryder, 63 Wis. 106. 23 N. W. 106; 533, 88 N. W. 1067. 
 
 Crookston Co. v. Marshall, 57 Minn. ■"'Nielander v, Chicago &c. R. Co., 
 
 333, 59 N. W. 294; Jenkins v. Jen- 114 Iowa 420, 87 N. W. 285.
 
 § 71] THE ixstru:mext of demise. 84 
 
 clearly showed what the agreement was. The omission of the lessee 
 to read the instrument did not defeat his right to a reformation. The 
 evidence showed that the lessee was an ignorant man, reading English 
 with difficulty, and he had a right to rely on the scrivener.''^ 
 
 A party to an instrument seeking relief of this nature should use 
 diligence in enforcing his rights and avoid undue delay. However, 
 not every negligence in this respect will stay the hand of the court, the 
 highest possible care not being demanded. Thus the relief asked for 
 was granted in a case where not only had the defendant suffered no 
 prejudice from the delay, but the very purpose of defeating the relief 
 demanded would be to obtain an advantage to which it was not en- 
 titled.®^ Fraudulent conduct on the part of the person seeking 
 reformation will defeat his right to relief. But where the application 
 was by an assignee of the lease who was in no way connected with the 
 alleged fraudulent erasure of a clause in the lease, the court granted his 
 request. The bill, on its face, entitled the plaintiff to relief.**^ 
 
 Where a dispute in regard to a defective lease is no longer between 
 the original parties, the remedy of specific performance might be given 
 ' the lessee against an assignee who was afEected with knowledge so as 
 to stand in no better position than the lessor. Thus when a tenant 
 entered into possession of premises under a lease which did not con- 
 tain a name of one of the lessors, and which was not acknowledged, 
 and the tenant made improvements and paid rent, he was entitled to 
 specific performance of the terms of the defective lease as against a 
 vendee of the lessor who took with actual knowledge.®* 
 
 II. Execution and Delivery. 
 
 § 71. All that is necessary to the execution of a lease is that it 
 should be signed and delivered. It is not necessary that it should be 
 either witnessed or acknowledged, except for the purpose of entitling 
 
 " Silbar v. Ryder, 63 Wis. 106, 23 would not agree to that, it would be 
 
 N. W. 106. Where a lease signed cancelled. Neuenberger v. Neuen- 
 
 by an aged and ignorant German berger, 16 Ky. L. R. 710. 
 
 omitted a material portion of the "■ Nielander v. Chicago &c. R. Co., 
 
 things which the lessee was to do, 114 Iowa 420, 87 N. W. 285. 
 
 as payment of rent, by reason of a " Rose Clare Lead Co. v. Madden, 
 
 mistake of the draftsman, it was 54 111. 260. 
 
 held that the lease would be re- " Schulte v. Schering, 2 Wash, 
 
 formed to conform to the origi- 127, 26 Pac. 78; McGlauflin v. Hol- 
 
 nal intent of the parties, or if lessee man, 1 Wash. 239, 24 Pac. 439.
 
 85 EXECUTION AND DELIVERY. [§ 71 
 
 it to record.^^ It is a general rule supported by an abundance of au- 
 thority that a lease of real property, duly signed by the parties but 
 not witnessed or acknowledged, is valid between the parties and 
 against purchasers having actual notice of its existence.^^ Tenants 
 who enter under a lease sufficient except for lack of acknowledgment, 
 and pay rent and erect improvements, cannot be ejected by a subse- 
 quent vendee of the landlord's, who takes with knowledge of these 
 facts,^^ A lease is obligatory against'the grantor though not acknowl- 
 edged, and when the grantee goes into possession under it the rights 
 of the parties are regulated by the terms of the contract.^* Where 
 a statute provides that a lease shall be good against none but the lessor 
 unless it is acknowledged, witnessed and signed, it is held that such a 
 lease is good against a lessee who has occupied the premises. The legis- 
 lature did not intend to make such a contract binding on one party and 
 void as to the other. The reasonable construction of the statute is to 
 hold that it was intended to make the contract valid as to both parties 
 if to either. Otherwise there would be a want of mutuality. The lease 
 being in force against the landlord, the agreement to pay rent is in 
 force against the tenant. ^^ 
 
 However, the effect of the almost universal legislation on this sub- 
 ject is, that unless a lease for more than seven years or some similar 
 term specified by statute has been acknowledged and recorded accord- 
 ing to law, it is valid only between the parties and such as have actual 
 notice thereof. In this respect a lease stands on the same footing as 
 a deed, and an intending purchaser is entitled to rely on the record 
 title in determining whether real estate is free from incumbrances.^*'*' 
 Where a lease purporting to have been executed by and between 
 
 °^ Roberts v. Nelson, 65 Minn. 240, Co., 46 Conn. 92; Lake v. Campbell, 
 
 68 N. W. 14; Morton v. Leland, 27 18 111. 106; McGlauflin v. Holman, 
 
 Minn. 35, 6 N. W. 378; Lydiard v. 1 Wash. 239, 24 Pac. 439. 
 
 Chute, 45 Minn. 277, 47 N. W. 967. ""McGlauflin v. Holman, 1 Wash. 
 
 In Minnesota in 1863, leases for a 239, 24 Pac. 439; Schulte v. Scher- 
 
 term not exceeding three years did ing, 2 Wash. 127, 26 Pac. 78. 
 
 not have to be executed in the pres- *' Town of Lemington v. Stevens, 
 
 ence of two witnesses. It seems 48 Vt. 38. 
 
 that leases for a longer period did «» Johnson v. Phoenix &c. Ins. Co., 
 
 have to be thus witnessed. Chand- 46 Conn. 92, 103. 
 
 ler v. Kent, 8 Minn. 524. '"" Anthony v. New York &c. R. 
 
 »«Emrich v. Union &c. Co., 86 Md. Co., 162 Mass. 60, 37 N. E. 780; 
 
 482, 38 Atl. 943; Kittle v. St. John, Toupin v. Peabody, 162 Mass. 473, 
 
 10 Neb. 605, 7 N. W. 271; Weaver 39 N. E. 280; Wihelm v. Mertz, 4 
 
 v. Coumbe, 15 Neb. 167, 17 N. W. G. Greene (Iowa) 54; Hopping v. 
 
 357; Baldwin v. Walker, 21 Conn. Burnam, 2 G. Greene (Iowa) 39. 
 
 168; Johnson v. Phoenix &c. Ins. See §§ 163-167.
 
 § 72] THE INSTRUMENT OF DEMISE. 86 
 
 strangers and a party to the suit is offered in evidence, and its execu- 
 tion is not admitted by the opposite party, such execution must 
 be proved. However, where such lease purports to be signed by 
 a subscribing witness, proof of such signature being the genuine 
 handwriting of the witness is sufficient. ^"^ 
 
 § 72. On the other hand, a different rule prevails in some states, 
 to the effect that unless the statutory requirements as to the execution 
 of a lease are complied with, no action can be maintained upon it in 
 its character of a lease. In one of these jurisdictions an action of 
 covenant for rent was brought on a lease which was neither witnessed 
 nor acknowleged. The court refused to allow a recovery, saying: 
 ^'Because the agreement was not acknowledged and recorded agreeably 
 to the registration laws of the state, it passed at law no title whatever 
 in the demised premises to the appellant, and consequently the cove- 
 nant for the payment of rent which is dej^endent on the appellant's 
 title, or interest in the demised premises created by the agreement, is 
 wholly inoperative and void; and no such action of covenant can be 
 maintained thereon." The landlord's remedy for rent would not be in 
 covenant. If the occupation of the premises was without his consent 
 it would be trespass quare clausum f regit; if with his consent, an action 
 for use and occupation could be maintained.^*"^ In Ohio it is held that 
 a deed for the conveyance of the title of lands not in accordance with 
 the provisions of the statute is insufficient to convey title. ^''^ The same 
 doctrine would be applicable to an indenture which was not acknowl- 
 edged or recorded. It would be utterly inoperative to convey the term 
 as a lease. The lessees would take nothing by the instrument as a 
 lease. If this instrument entitled the landlord to recover rent in an 
 action of covenant, one executed in a similar manner, purporting to 
 convey a fee simple in land, would entitle the grantee to recover in 
 an action for the title and possession of the lands, but such is not the 
 law.^°* In a case where the defectively executed lease purported to 
 convey a perpetual leasehold estate, it was held that the lessee took 
 only an equitable rather than a legal estate.^"^ A defectively executed 
 lease could not be held good for the short period during which in- 
 
 *<" Oberfelder v. Kavanaugh, 21 Roads v. Symmes, 1 Ohio 281 ; John- 
 Neb. 483, 32 N. W. 295. ston v. Haines, 2 Ohio 55. 
 
 "= Anderson v. Critcher, 11 Gill "^ Richardson v. Bates, 8 Ohio St. 
 
 & J. (Md.) 450. 257. 
 
 ^•"Courcier v. Graham, 1 Ohio 330; ^'"Abbott v. Bosworth, 36 Ohio 
 
 Patterson v. Pease, 5 Ohio 190; St. 605.
 
 87 EXECUTION AXD DELIVERY. [§§ 73, 74 
 
 formal leases are valid and void only as to the excess. It is invalid 
 throughout.^*"' 
 
 § 73. Rights of third parties. — It has been laid down that a lease 
 reserving a lien which is neither acknowledged nor recorded can create 
 no lien on the lessee's goods for rent, even though the creditor attach- 
 ing the goods has actual notice of the lease."" The reservation of a 
 lien is in effect a chattel mortgage which would not be valid without 
 record; and notice of the lease cannot charge a third person with 
 knowledge of a chattel mortgage clause in it. The contrary result was 
 reached in a case where the lien for rent was reserved on growing 
 crops, on the ground that if the lease was not valid the entire property 
 in the crops remained in the lessor."^ This reason is invalid and the 
 objection can be removed in two ways. First, it is possible to hold 
 the unrecorded lease valid between the parties for the purpose of creat- 
 ing a tenancy and yet invalid to curtail the rights of third persons; 
 or, second, a tenancy might exist between the parties by reason of 
 occupation and payment of rent, although the written lease was void 
 in toto. The court admit the invalidity of the lease to the extent that 
 it could be terminated before the end of the term by an attaching 
 creditor or grantee of the lessor. Such an admission seems incon- 
 sistent with a decision allowing validity to the clause reserving a lien. 
 
 § 74. Seal unnecessary. — Notwithstanding some early English 
 cases to the contrary, the universal rule to-day, both in this country and 
 in England, is that the written document which furnishes evidence ol 
 a demise sufficient to satisfy the statute of frauds need not be undei 
 seal."^ By the common law all contracts were divided into agroementu 
 by specialty and agreements by parol; there was no such third class 
 as agreements in writing. If they were written and not under seal, 
 they were parol agreements. A lease for years written but not sealed 
 
 i°«BrohawTi v. Van Ness, 1 191 Pa. St. 134, 43 Atl. 140; Cres- 
 
 Cranch C. C. 366, 4 Fed. Cas. No. cent City &c. Co. v. Simpson, 77 
 
 1920. Cal. 286, 19 Pac. 426; Gay v. Ihm, 
 
 '"^Kendall &c. Co. v. Bain, 55 Mo. 3 Mo. App. 588; Hunt v. Hazelton, 
 
 App. 264. 5 N. H. 216; Mayberry v. Johnson, 
 
 lo^Buswell V. Marshall, 51 Vt. 87. 15 N. J. Law 116; Lake v. Campbell, 
 
 ^'^ O'Brien v. Smith, 37 N. Y. St. 18 111. 106; Hill v. Woodman, 14 Me. 
 
 41, 13 N. Y. S. 408, affirmed without 38; Farmer v. Rogers, 2 Wilson 26; 
 
 opinion 129 N. Y. 620; Warren v. Beck v. Phillips, 5 Burr. 2827; Bax- 
 
 Leland, 2 Barb. (N. Y.) 613, 618; ter v. Browne, 2 W. Bl. 973; Good- 
 
 Stoddard v. Whiting, 46 N. Y. 627, title v. Way, 1 Term R. 735. 
 633; Witman v. City of Reading,
 
 § 74] THE INSTRUMENT OF DEMISE. 88 
 
 was a parol lease as well as a lease unwritten and verbal only.^^'^ The 
 question then occurs, what change did the statute of frauds introduce 
 in the mode of creating estates for less than freehold. It did not jDre- 
 scribe the manner in which such estates should be created or trans- 
 ferred, but only declared that estates for years, if made by parol and 
 not put in writing, should operate as estates at will. In whatever way, 
 therefore, such estates might have been created prior to the statute, 
 other than by parol and not put in writing, they may still be created. 
 Before the statute of frauds leases might have been made by writing 
 simply, or to speak technically, by a parol agreement reduced to writ- 
 ing. It follows that after the statute leases for more than three years 
 could be made by indenture of lease, or by parol agreement "in writ- 
 ing signed by the parties."^" 
 
 In accordance with the foregoing principles a lease by a corporation 
 may be valid although it is not executed under its corporate seal. Exe- 
 cution of the lease by an authorized agent of the company is valid 
 and effectual to create the term without the use of the corporate seal. 
 An entry upon the use and occupation of the land under a lease pur- 
 porting to be made by the agent of the company, and paying rent 
 pursuant to its terms is sufficient to bind the corporation to the lease."^ 
 It is not necessary to the validity of the lease that the lessee should 
 affix his seal thereto. His acceptance is abundantly shown by claiming 
 under it.^^^ So, a lease has been held valid although it was signed 
 and sealed by one party and signed merely by the other. It was con- 
 tended that there was no mutuality of contract, the tenant sealing 
 his contract and it not appearing that the agent who sealed the in- 
 strument for the landlord had any authority under seal to do so. 
 This objection was overruled. The landlord, whether he sealed the 
 contract or not, signed it and each side became bound thereby. It 
 was the same as if the contract had been in two instruments, one 
 containing covenants or promises under seal and the other containing 
 promises unsealed, each being a sufficient consideration for the other. 
 Each would be valid."* While a lease is valid without a seal, the con- 
 
 ""Rann v. Hughes, 7 Term R. Rawlins v. Turner, 1 Ld. Raym. 
 
 346, n; Ballard v. Walker, 3 Johns. 736. To the same effect see Rex 
 
 Cas. (N. Y.) 60, 65; Perrine v. v. Inhabitants of Little Dean, 1 
 
 Cheeseman, 11 N. J. Law 174; Str. 555. 
 
 Ford v. Campfield, 11 N. J. Law ^ Crawford v. Longstreet, 43 N. J. 
 
 327. Law 325. 
 
 "* Mayberry v. Johnson, 15 N. J. "^ Crescent City &c. Co. v. Simp- 
 Law 116. In an early case Holt, son, 77 Cal. 286, 19 Pac. 426. 
 J., ruled that all leases for more "* Rice v. Brown, 81 Me. 56, 16 
 than three years must be by deed. Atl. 334.
 
 89 EXECUTION AND DELIVERY. [§ 75 
 
 sideration for the covenants may be gone into in case the seal is 
 omitted. However, the covenant to pay rent is supported by an 
 abundant consideration in the demise of the premises and can be en- 
 forced even though the premises fall into disrepair and become useless, 
 so that the use becomes of no value.^" 
 
 In Delaware it is provided by statute that no demise, except it be 
 by deed shall be effectual for a longer term than one year."^ So it 
 was held that a lease for five years not under seal was not binding 
 except as a lease from year to year. For a breach of covenant oc- 
 curring in the first year the statute of limitations would begin to run 
 at once rather than from the end of the term.^^^ 
 
 § 75. A lease must be signed by the lessor, for he stands in the 
 position of a grantor who is conveying an estate. An indenture of 
 lease in which the lessee binds himself to pay rent for a certain term 
 does not create any leasehold estate till it has been properly executed 
 by the lessor. If the lessee takes possession of the premises his occu- 
 pation is as tenant at will or by sufferance only, and he is only liable 
 for rent for the time he actually occupied them."* Until the lessor 
 signs the indenture it creates no estate or interest in the land and 
 imposses no obligation upon either of the parties."^ Where an instru- 
 ment began "I have leased" and followed by description of property, 
 statement of term and of terms with provisions for entry in case of 
 non-payment of rent, and was signed by the lessee, it was held that 
 this was not a lease of itself, for the lessor makes no written lease 
 until he signs the paper. The action here was by the lessor to re- 
 cover rent and he wished to establish the validity of the instrument.^-" 
 It has been declared to be the well established rule that a lease must 
 be signed by the lessor to be evidence of a demise,^^^ and a signature 
 by an agent not properly authorized in writing is not a compliance 
 with this requirement.^-^ 
 
 In an action of covenant on an indenture of lease for failure to 
 repair during the term, it is an answer that the lessor never executed 
 
 "^ Hill V. Woodman, 14 Me. 38. "* Lawrence v. Hasbrouck, 46 N. 
 
 "'Laws 1852, Amended 1893, ch. Y. S. 868, 21 Misc. R. 39; Laughran 
 
 120, § 3. V. Smitli, 75 N. Y. 205. 
 
 "'Stewart v. Apel, 5 Houst. '=« Clemens v. Broomfield, 19 Mo. 
 
 (Del.) 189, S. C. 4 Houst. 314. 118; Marlow v. Wiggins, 3 G. & D. 
 
 "'Nickolls V. Barnes, 32 Neb. 504; Richardson v. Giflford, 1 A. & 
 
 195, 49 N. W. 342, reversed on re- E. 52, 55. 
 
 hearing on another point, 39 Neb. *" Hyatt v. Third Baptist Church, 
 
 103, 57 N. W. 990; Sigmund v. 10 Mo. App. 582. 
 
 Newspaper Co., 82 111. App. 178. ^Sigmund v. Newspaper Co., 82
 
 §• 76] THE IXSTRUMENT OF DEMISE. 90 
 
 the indenture, and consequently that the term to which the covenant 
 was annexed was never created. It makes no difference that the 
 lessee occupied from year to year for the whole period of years com- 
 prised in the intended lease. In an ordinary indenture a covenantee, 
 who is a party to it, may sue the covenantor who executed it, though 
 he never did, for he is a party though he did not execute. But with 
 respect to leases by indenture, the covenants which depend on the in- 
 terest of the lease — such as those to repair and pay rent during the 
 term — are not obligatory if the lessor does not execute. The reason 
 is because that interest has not been created to which the covenants 
 are annexed, and during which only they operate. Unless there be a 
 term a covenant to repair during it is void. But with respect to 
 collateral covenants, not depending on the interest in the land, it is 
 otherwise, and they are obligatory. ^^^ However, where the lessee has 
 occupied during the term, the landlord could recover rent from him 
 in an action of use and occupation. ^^* Where all but one of several 
 joint lessors signed the indenture, it would seem that the reasoning 
 of the foregoing cases would not apply, as the lessee would acquire 
 an undivided estate in the land. In that case the lessee should be 
 liable on his covenant to pay rent.^^^ 
 
 It seems to be valid for a lease to be drawn in duplicate and to have 
 each copy signed by one party and then exchanged ; the failure of both 
 to sign the copy they retain does not affect the validity of the lease. 
 It is a complete and obligatory contract binding upon each of the 
 parties as fully as if each of them had in form signed and sealed both 
 of the papers.^^® 
 
 § 76. Errors in signature. — A lease, whether in the form of an in- 
 denture or a deed-poll, is nevertheless a grant of an interest in real 
 estate, and must conform in many respects to the requirements for a 
 deed which would be valid to transfer an estate in fee. It must contain 
 a granting clause which usually names the grantor, and such clause is 
 as essentially operative in passing the estate as the signature at the bot- 
 tom of the lease. So the instrument must be executed by the same 
 
 111. App. 178. (Mass.) 335. The dictum in this 
 
 ^■^ Pitman v. Woodbury, 3 Exch. case contrary to the law as stated 
 
 4; Swatman v. Ambler, 8 Exch. 72; in the text seems to be wrong. 
 
 Waller v. Deane &c., Owen 136, 2 "<' Campau v. Lafferty, 43 Mich. 
 
 Brownl. & G. 158; Knipe v. Palmer, 429, 5 N. W. 648; Fields v. Brown, 
 
 2 Wils. 130. 188 111. Ill, 58 N. E. 977, reversing 
 
 '='Codman v. Hall, 9 Allen 89 111. App. 287; Ames v, Moir, 130 
 
 (Mass.) 335. 111. 582, 22 N. E. 535. 
 i=»Codman v. Hall, 9 Allen 
 
 I
 
 91 EXECUTION AND DELIVERY. [§ 77 
 
 person who is named as grantor in the body of the lease. Where an- 
 other signs as lessor, it is not a valid lease, for it is just as if the place 
 for signature had been left blank. ^^'^ The granting clause also names 
 the grantee and the estate passes to the person or persons there named 
 by virtue of the grant without regard to the signatures which may be 
 affixed to an indenture of lease as parties of the second part. The sig- 
 nature below the name of the lessee of one whose name is not men- 
 tiond in the body of the lease does not make him a co-lessee and liable 
 for rent.^^^ But where the first name to the lease was misstated in 
 the body of the lease, but the signature was correct, it was held this 
 did not invalidate the lease. Since the lessee intended to sign it and 
 to make it his lease, it was immaterial what he was called in the 
 body of the instrument. ^^® Where a lease ran to two and was executed 
 by both of them as lessees, parol evidence is not admissible to affect 
 the rights of the lessor by showing that one of them signed as surety 
 for the other. Evidence to this effect would be available for the pur- 
 pose of determining the rights of the two lessees against each other, 
 but not for the purpose of altering the legal effect of the written 
 instrument.^^*' 
 
 § 77. Lessee need not sign. — Wliere a lease recites that the lessee is 
 to pay a certain sum as rent for the premises, his acceptance of the 
 lease makes him a direct obligor or promisor to pay the rent, al- 
 though he has not signed or executed the instrument.^" Fry, in his 
 text-book on Specific Performance, cites cases where "an agreement 
 contained in a deed-poll was enforced, notwithstanding an objection 
 which was taken from the unilateral nature of the instrument, and 
 declares them to represent the law.^^- The contract to pay the rent 
 reserved on the part of the tenant is not an express contract, but an 
 implied contract, or contract raised by law from the nature of the 
 transaction. Such contracts are not within the statute of frauds. ^^^ 
 
 '"Roff v. Duane, 27 Cal. 565. 307; Atlantic Dock Co. v. Leavitt, 
 
 '=* Evans v. Conklin, 71 Hun (N. 54 N. Y. 35; Schmucker v. Sibert, 
 
 Y.) 536, 54 N. Y. St. 915, 24 N. Y. 18 Kan. 104. 
 
 S. 1081. See, however, Magee v. '^= Fry on Specific Performance (2 
 
 Fisher, 8 Ala. 320, where the con- Am. Ed.) 202, *137, § 298; Otway 
 
 trary was held. v. Braithwaite, 1 Finch 405; Butler 
 
 i=«Montany€ v. Wallahan, 84 111. v. Powis, 2 Coll. C. C. 156. To 
 
 355, same effect see Old Colony R. Corp. 
 
 i^Hobbs V. Batory, 86 Md. 68, 37 v. Evans. 6 Gray (Mass.) 25. 
 Atl. 713. '''Goodwin v. Gilbert, 9 Mass. 
 
 "'McParlane v. Williams, 107 111. 510; Fletcher v. McFarlane, 12 Mass. 
 
 33; Kershaw v. Kershaw, 102 111. 43; Pike v. Brown, 7 Cush. (Mass.)
 
 77] 
 
 THE INSTRUMENT OF DEMISE. 
 
 92 
 
 The doctrine has been broadly laid down that, where land is con- 
 veyed by deed-poll, and the grantee enters under the deed, certain 
 duties being reserved to be performed, as no action lies against the 
 grantee on the deed, the grantor may maintain assumpsit for the non- 
 performance of the duties reserved and the promise, being raised by 
 the law, is not within the statute of frauds.^^* Occupation under the 
 lease is not indispensible to the recovery if only the lease has been 
 accepted. "It is enough," said the Massachusetts court, in deciding 
 this question, "that they accepted the conveyance which gave them the 
 right of immediate and exclusive occupation. The law would imply 
 from such acceptance a promise to comply with the terms of the lease, 
 and such a promise is not within the statute of frauds."^^^ The rea- 
 son is, the estate vests the moment the lease is accepted, and the 
 lessee in taking the estate takes it cum onere, and accordingly must 
 pay the rent so long at least as he holds it.^^^ Where there has been 
 both acceptances of the lease and entrance into possession liability 
 would, of course, follow, and a lessee by accepting a lease under seal 
 and entering into the occupation of the premises becomes liable for 
 the performance of the conditions of the lease although the same is 
 not signed by him. The action against him for failure to perform 
 would be assumpsit.^^^ 
 
 An offer in writing to allow a tenant to remain in possession for 
 two years, rent free, made and signed by the owner of the land, was 
 held to be a lease which the tenant accepted by remaining ; and it was 
 not necessary for it to be signed by the tenant. So that at the termi- 
 nation of the two year period, the tenant could be evicted without any 
 notice to quit, he being in the position of a tenant holding for a fixed 
 term.^^^ 
 
 133; Kabley v. Worcester &c. Co., 
 102 Mass. 392; Providence &c. 
 Union v. Eliott, 13 R. I. 74; Trap- 
 nail v. Merrick, 21 Ark. 503; Sage 
 v. Wilcox, 6 Conn. 81; Allen v. 
 Pryor, 3 A. K. Marsh. (Ky.) 305; 
 Browne on Statute of Frauds, § 166. 
 ,"* Goodwin v. Gilbert, 9 Mass, 
 510; Providence &c. Union v. Eliott, 
 13 R. I. 74; Evans v. Conklin, 71 
 Hun (N. Y.) 536, 54 N. Y. St. 915, 
 24 N. Y. S. 1081; Loughran v. 
 Smith, 11 Hun (N. Y.) 311; Fitton 
 V. Inhabitants of Hamilton City, 6 
 
 Nev. 196; Natural Gas Co. v. Phila- 
 delphia Co., 158 Pa. St. 317, 27 Atl. 
 951; Weaver v. Southern Oregon 
 Co., 31 Ore. 14, 48 Pac. 167. 
 
 "° Kabley v. Worcester &c. Co., 
 102 Mass. 392. 
 
 ""Providence &c. Union v. Eliott, 
 13 R. I. 74. 
 
 "^ First Cong. &c. Soc. v. Town of 
 Rochester, 66 Vt. 501, 29 Atl. 810; 
 Henderson v. Virden Coal Co., 78 
 111. App. 437. 
 
 »«Hulett v. Nugent, 71 Mo. 131. 
 See § 255.
 
 93 EXECUTION AND DELIVERY. [§§ 78, 79 
 
 § 78. Where the parties contemplated the signing of an indenture 
 of lease by both parties, and it was signed by the lessor only, and the 
 lessee had not taken possession under it, it was held by the New York 
 Supreme Court that he was not liable for rent.^'^ But the general 
 rule of law would be that a party who enters into possession of property 
 as tenant, after promising to sign a written lease, cannot rely on the 
 fact that he did not sign to relieve himself from the burdens imposed 
 by the lease.^*° This is because there is no adequate reason why an 
 original intention to have the lessees sign the lease would prevent its 
 taking effect as a deed-poll after it had been accepted. The absence 
 of the lessee's signature would afford evidence that he had not accepted 
 the lease, but if it be shown that the instrument was accepted, occu- 
 pation and privity of estate would have the ordinary effect in fixing 
 liability on the lessees. Thus, in a lease to four lessees, which had 
 been signed by two only, it was argued that an action could not be 
 maintained on the covenants of the lease against the two defendants 
 who executed it, because it was apparent that it was intended that all 
 four lessees should execute it, and it did not purport to be a lease to 
 two. But the lessees could have accepted the demise on the terms and 
 conditions contained in the indenture without executing it. In such 
 a case the indenture would take effect as a deed-poll, and a promise 
 would be implied on the part of the lessees to perform the stipulations 
 expressed in the indenture on their part to be performed.^" If the 
 transfer of land by a lease is unconditional, the covenants intended to 
 be undertaken by the lessee by his signing and sealing the instru- 
 ment are independent. The right of the lessor to have such cove- 
 nants executed by the lessee might be waived by him. By putting the 
 lease on record and treating it as in all respects valid to pass the land 
 described, the lessor must be regarded as waiving his right to the 
 lessee's signature.^*^ 
 
 §79. Acceptance of lease. — Wliere lessees have accepted a lease, 
 their liability to pay rent is not qualified, or taken away, by proof 
 that they never actually occupied the premises. It is enough tliat 
 they accepted the conveyance, which gave them a right of immediate 
 and exclusive occupation. The law would imply, from such accept- 
 
 "» Adams v. Boelger, 15 Misc. R. John's &c. Soc, 125 Mass. 565; Lib. 
 
 (N. Y.) 140, 71 N. Y. St. 823, 36 N. bey v. Staples, 39 Me. 166. 
 Y. S. 801. "' Burkhardt v. Yates, 161 Mass. 
 
 "" Bonaparte v. Thayer, 95 Md. 591, 37 N. E. 759. 
 548, 52 Atl. 496; Carroll v. St. i« Libbey v. Staples, 39 Me. 166.
 
 § 79] THE INSTRUMENT OF DEMISE. 94 
 
 ance a promise to comply with the terms of the lease^" and such a 
 promise is not within thp statute of frauds,^** In contemplation of 
 law they hold the premises whether they occupy them or not.^*^ A 
 lease signed by the lessor and accepted by the lessee has the same 
 force and effect as it would have if signed by the lessee. But such is 
 not the case where there is no evidence tending to prove that the 
 lease was accepted by the lessee. If he had accepted the lease and 
 had occupied the premises under it, the law would imply a promise 
 to pay the rent reserved, although the lessee had never signed the 
 lease. In the absence of proof of acceptance, the lease would not 
 be binding on him."*' Where the lessee signed and retained a lease 
 tendered by the lessor and prepared, signed, and sent a duplicate to 
 the lessor, there was held to be an acceptance, even though the lease was 
 accompanied by a letter indicating unwillingness to pay the rent re- 
 served."^ 
 
 The presumption that a lease beneficial in its nature has been ac- 
 cepted can only be availed of when it was in fact beneficial; which 
 depends on the circumstances of the entire case."^ The presumption 
 of assent is not founded on the face of the instrument, but in the 
 nature and circumstance of the entire case ; and it is an indispensable 
 inquiry, whether the person claimed to assent derives a benefit from 
 the transaction.^*^ 
 
 While the construction of a written lease should be passed upon by 
 the court, it is proper to leave to the jury the question whether an 
 unexecuted instrument was accepted by the lessees. After the parties 
 had made an oral agreement the landlord prepared a writing and sent 
 it to the tenants for their signature. It was submitted to the jury 
 whether this agreement was accepted by the lessees, and this was the 
 proper course to take. The construction of a written document is ex- 
 clusively the province of the court, but when the making of such con- 
 tract is in dispute it is the province of the Jury to say whether it is 
 established.^^" 
 
 "'Guild v. Leonard, 18 Pick. "^ Leiter v. Pike, 127 111. 287, 20 
 
 (Mass.) 511, 516; Goodwin v. Gil- N. E. 23, affirming 26 111. App. 530. 
 
 bert, 9 Mass. 510; Kabley v. Worces- "" Camp v. Camp, 5 Conn. 291, 300. 
 
 ter &c. Co., 102 Mass. 392. "" Thompson v. Leach, 2 Vent. 198, 
 
 '"Felch v. Taylor, 13 Pick. 206; Mutton's Case, 2 Leon. 223; 
 
 (Mass.) 133; Kabley v. Worcester Treadwell v. Bulkley, 4 Day (Conn.) 
 
 &c. Co., 102 Mass. 392. 395. 
 
 i« Pinero v. Judson, 6 Bing. 206. ^^ Folsom v. Cook, 115 Pa. St. 539, 
 
 "' Castro v. Gaffey, 96 Cal. 421, 31 9 Atl. 93. 
 Pac, 363.
 
 95 EXECUTION AND DELIVERY. [§§ 80, 81 
 
 § 80. Form of action. — Where a leasehold estate has been created 
 by a deed poll executed by the lessor and accepted by the lessee, as- 
 sumpsit is the proper form of action by which to compel performance 
 by the lessee of the undertakings placed upon him.^^^ The rent could 
 be recovered of him in an action of debt. In the case under consid- 
 eration, the lease is not in the form of an indenture, and is neither 
 signed or sealed by the tenant. By taking possession under it the 
 tenant accepted the lease and became bound to carry out and perform 
 those provisions of it which rested on him to perform. But such ac- 
 ceptance did not make the lease an instrument under the seal of the 
 tenant. In law it was similar to, and no more than, a written ac- 
 ceptance of its provisions, signed by the tenant but not under his 
 seal.1^2 
 
 So, in such case the lessor cannot maintain an action of covenant 
 against the lessee, because the general rule is that covenant will lie 
 only where the instrument is actually signed and sealed by the party 
 or by his authority. ^^^ The doctrine with regard to covenants run- 
 ning with the land has no application to confer a right to sue in cove- 
 nant. No such covenants can be created or assigned except by deed. 
 Their relation to the land does not convert them into covenants, 
 but only characterizes them as contracts which concern the realty.^'* 
 
 § 81, An undisclosed principal is not liable as lessee on the cove- 
 nants of a lease executed by its agent by reason of its subsequent occu- 
 pation of the premises. In the case where this doctrine was an- 
 nounced there was no evidence that either party understood that 
 the principal was to occupy as lessee under the lease. The subsequent 
 conduct of the parties was not inconsistent with holding the agent 
 to be the lessee under the lease, and there was nothing which could 
 control the terms of the lease, or show that the principal was bound 
 by the covenants.^^^ The general principles of the law of agency as 
 to the execution of an instrument under seal by an agent apply in a 
 
 iBi Providence &c. Union v. Eliott, 9 Mass. 510; Gale v. Nixon, 6 Cow. 
 
 13 R. I. 74; Trapnall v. Merrick, 21 (N. Y.) 445; Johnsons v. Muzzy, 45 
 
 Ark. 503; First Cong. &c. Soc. v. Vt. 419; First Cong. &c. Soc. v. 
 
 Town of Rochester, 66 Vt. 501, 29 Town of Rochester, 66 Vt. 501, 29 
 
 Atl. 810; Johnsons v. Muzzy, 45 Vt. Atl. 810; Burnett v. Lynch, 5 B. & 
 
 419. C. 589; Contra Finley v. Simpson, 
 
 ^" First Cong. &c. Soc. v. Town of 22 N. J. Law 311. 
 Rochester, 66 Vt. 501, 29 Atl. 810. '" Trustees Section 16 v. Spencer, 
 
 ^=' Trustees Section 16 v. Spencer, 7 Ohio 493. 
 7 Ohio 493; Hinsdale v. Humphrey, "'Haley v. Boston Belting Co., 140 
 
 15 Conn. 431; Goodwin v. Gilbert, Mass. 73, 2 N. E. 785.
 
 § 81] THE INSTRUMENT OF DEMISE. 96 
 
 case where a lease is executed by one person in behalf of another. A 
 lease which was made to the agent as lessee and signed in his in- 
 dividual name and not as agent, recited the facts of the agency in the 
 body of the instrument. It was held that the agent was liable on the 
 instrument and the principal was not.^^^ If the form of ihe lease 
 makes the agent the lessee, the covenants in the deed can only be 
 enforced against the party who, upon the face of the instrument, is 
 the covenantor, although it appears by extrinsic proof that he acted 
 as the agent for another. ^^^ Thus, where an agent executed a lease as 
 lessor in behalf of an undisclosed principal, the principal could not 
 maintain an action of covenant against the lessee for the rent. The 
 rule is well established that an action upon a sealed instrument must 
 be brought by and in the name of the person who is a party to the in- 
 strument, and that a stranger to the instrument cannot maintain an 
 action upon it.^^^ Furthermore, the owner of premises cannot main- 
 tain distress for rent under a lease executed by his agent in the 
 agent's own name. The tenant holds under the agent as landlord and 
 not under the principal. It makes no difference that the agent wrote 
 the word "agent" under his signature.^^^ Nor can a lessee deny the 
 title of his lessor because the latter described himself as agent in ex- 
 ecuting the lease. ^®^ Wliere one joint owner acting for all executed 
 a lease and signed himself agent without stating his principal, the 
 lease ran to the agent alone as lessor.^^^ 
 
 An attaching creditor of a landowner would prevail over a lessee 
 holding under a lease improperly executed by an agent of the owner. 
 The lease described the parties as principal and agent but recited 
 that the agent had leased, etc., and was signed by the agent in his 
 own name.^''^ Eecitals of the agency will not avail against the ef- 
 fective granting portion of the lease that the agent has leased, etc. 
 So a bill to cancel a lease was allowed, though the lease began with a 
 recital of the agency and was signed by the agent as representing an 
 estate. The recitals of the agency are mere descriptio personae,^^^ 
 which serve to identify the parties but do not change the legal effect 
 of the instrument, 
 
 "» Kiersted v. Orange &c. R. Co., "» Seyfert v. Bean, 83 Pa. St. 450. 
 69 N. Y. 343. i«« Bedford v. Kelly, 61 Pa. St. 491. 
 
 "'Taft v. Brewster, 9 John. (N. ^^ Holt v. Martin, 51 Pa. St. 499. 
 Y.) 334; Stone v. Wood, 7 Cow. (N. i^= Murray v. Armstrong, 11 Mo. 
 
 Y.) 453; Guyon v. Lewis, 7 Wend. 209. 
 (N. Y.) 26. "3 Potter v. Bassett, 35 Mo. App. 
 
 '=*Schaefer v. Henkel, 75 N. Y. 417. 
 378.
 
 07 EXECUTION" AND DELIVERY, [§83 
 
 However, after a lessee has occupied the premises during the term 
 under a lease executed by an agent as lessor, he cannot deny the 
 validity of the demise when sued for rent, even though it was not a 
 good conveyance against the principal. In the case where this hold- 
 ing was made the agent had assigned the lease and the principal had 
 conveyed the reversion to the plaintiff who brought suit for the rent 
 so that he combined all rights in himself.^''* Furthermore, one acting 
 in a representative capacity cannot object that his predecessor did 
 not properly execute a lease in behalf of the estate. If it can be 
 shown that the person acting as administrator intended to bind the 
 estate by the lease, it is not open to the person who succeeds as ad- 
 ministrator to object that the lease was not properly executed.^"^ 
 
 Where lessees acting for a lodge were described in the caption as 
 ^'trustees" but executed in their individual names, and in the body 
 of instrument covenanted to pay rent without using any words to 
 show an intention to bind their lodge, it was held they were per- 
 sonally liable and the words "trustees" was merely descriptio per- 
 
 § 82. leases by corporations. — The liability of parties to a lease 
 must be determined by the terms of the written instrument which 
 they execute. Accordingly it has been held that a lessee, in the face 
 of the terms of a written lease, cannot show that he was acting as 
 agent for a proposed corporation and thus by parol relieve himself 
 of liability. He must also show fraud or misrepresentation.^"^ But 
 the opposite result was reached where the lease was by a de facto 
 corporation. Covenants in the lease were expressed to be by it and 
 the signature was by the corporation through its trustees, so it did 
 not create any liability on the trustee signing but a corporate lia- 
 bility.^''® In another case a lease by a corporation was signed by its 
 secretary in his own name, followed by a statement of his represent- 
 ative capacity, and on the margin was written the initials of the name 
 of the corporation. This was held to be a valid lease by the corpora- 
 tion. It was simply for the court to determine, as a matter of law, 
 whether, on its face, it was the contract of the corporation.^"" It 
 has been held, also, that a lease by a corporation signed and sealed in 
 
 *" Kendall v. Garland, 5 Gush. "'Sanders v. Sharp. 153 Pa. St. 
 
 (Mass.) 74. 555, 25 Atl. 524. 
 
 »«» Russell V. Erwin, 41 Ala. 292. '"« Hancock v. Yunker, 83 III. 208. 
 
 '•"Stobie V. Dills, 62 111. 432; ""West Side &c. Co. v. Gonnecti- 
 
 Seaver v. Goburn, 10 Gush. (Mass.) cut &c. Ins. Go., 186 111. 156, 57 N. E. 
 
 324. 839, 85 111. App. 497. 
 
 Jones L. & T.— 7
 
 § 83] THE INSTRUMEXT OF DEMISE. 98 
 
 the corporate name by a proper officer is not invalid, because in the 
 beginning the lease is described as an indenture made by an indi- 
 vidual officer of the corporation. ^''° These decisions accept a lax rule 
 as to the execution of instruments, and such a tendency can hardly be 
 regarded with favor. 
 
 § 83. Delivery is a question of intent and it depends on whether 
 the parties meant it to be a delivery to take effect immediately. 
 Where a lease was signed by both parties and then put in the hands 
 of the lessee to procure an endorsement for payment of rent, it was 
 held there was no delivery of the lease as the deed of the lessee and 
 the instrument was not binding since the proposed guaranty could 
 not be obtained.^^^ Yet the general rule regarding escrows is that 
 a lease or other instrument cannot be delivered in escrow to one of 
 the contracting parties. That rule is that if the deed is absolute on 
 its face, parol evidence cannot be admitted to prove that the parties 
 agreed it should be conditional.^^^ 
 
 Delivery in a popular sense implies an actual transfer of posses- 
 sion from one person to another and such a transfer made uncondi- 
 tionally constitutes a valid delivery. But a manual transfer of the 
 instrument in writing, required by the statute of frauds, is not al- 
 ways necessary. If the grantee, by formal assent, or unequivocal 
 acts, such as entering into possession, treats the writing as in his 
 possession, it is sufficient to constitute a delivery.^"^ The exact time 
 when delivery takes place is important, because a lease takes effect 
 as a binding instrument from the time of its delivery and not from 
 its date, or from the time when the signatures were affixed to it.^^* 
 The technical requirements for the execution of an instrument in- 
 cludes delivery in addition to signing, if it be a simple contract, and 
 delivery of the signed and sealed instrument, if it be a specialty. This 
 rule applies equally to indentures signed by both parties and to deeds 
 poll which are signed and sealed by only one. So in strictness it is 
 true that a lease, though signed by both parties, does not take effect 
 till it has been delivered.^^^ But after both parties have signed an 
 
 "" Douglass V. Branch Bank &c., "^ De Ronde v. Olmsted, 5 Daly 
 
 19 Ala. 659; Northwestern &c. Co. (N. Y.) 398. 
 V. Brant, 69 111. 658. ''' Stetson v. Briggs, 114 Cal. 511, 
 
 "'Jordan v. Davis, 108 111. 336. 46 Pac. 603; Davidson v. Ellmaker, 
 
 "-Browning v. Haskell, 22 Pick. 84 Cal. 21. 23 Pac. 1026; Witthaus 
 
 (Mass.) 310. V. Starin, 12 Daly (N. Y.) 226. 
 
 "^ Witman v. City of Reading, 191 
 Pa. St. 134, 43 Atl. 140.
 
 99 PARTIES TO LEASES. [§ 84 
 
 indenture of lease it is a sufficient delivery to leave the instrument 
 with the scrivener who prepared it for him to make a copy for the 
 lessee.^'" So where a lease is signed by both parties and retained by 
 one, it is immaterial whether the other has a counterpart or not as 
 long as he is content to be without one. Xo objection can be made 
 on the score that the instrument was invalid for lack of due delivery, 
 but as long as the tenant has not entered into possession, delivery 
 becomes material on the question whether the lease became operative 
 or not.^^^ An agreement between two parties in which the former 
 agrees to give the latter a lease of certain land, for a stipulated rent, 
 as soon as he shall comply with certain conditions, manifestly pre- 
 pared and intended to be executed by both, but signed by the lessor 
 alone, with the day of the month left blank, and never signed or at- 
 tempted to be signed by the lessee and never delivered to him during 
 the lessor's life, is an inchoate instrument, passing to the lessee no 
 interest either legal or equitable.^"* Where a lease was signed by the 
 lessees, in whose favor it was drawn, but was never delivered to them 
 and was assigned by them at the request of the lessor's agent, and 
 delivered to the agent, and the first installment of rent was received 
 by the lessor from the assignee, the original lessees never became 
 obligated to pay rent.^^'' 
 
 Eetention of possession of a lease by the lessor is not conclusive 
 evidence that it has not been delivered so as to become operative. A 
 finding that it is duly "executed" will be construed to include its de- 
 livery.^^" The use of the word "execute" will not, however, import a 
 delivery when it is used as a synonym of the word "sign."^^^ 
 
 . Ill, Parties to Leases. 
 
 § 84. In general. — In regard to the execution of every lease there 
 may arise questions as to the capacity of the person to enter into 
 such a contractual relation, and as to the authority of the alleged 
 
 "« Reynolds v. Greenbaum, 80 111. '" Davidson v. Ellmaker, 84 Cal. 
 
 416. 21, 23 Pac. 1026. The execution of 
 
 ''" David Stevenson &c. Co. v. Cul- a lease may be proved in an action 
 
 bertson, 41 N. Y. S. 1039, 18 Misc. by the lessor for rent by the pro- 
 
 R. (N. Y.) 486. duction of the certified copy of a 
 
 "* Howard v. Carpenter, 11 Md. judgment for possession recovered 
 
 " 259. by lessee against landlord. McCoy 
 
 "» Stetson v. Briggs, 114 Cal. 511, v. Oldham, 1 Ind. App. 372, 27 N. E. 
 
 46 Pac. 603. 647. 
 
 '^"Oneto v. Restano, 89 Cal. 63, 26 
 Pac. 788.
 
 ? 84] THE INSTRUMENT OF DEMISE. 100 
 
 lessor to convey by demise the particular premises covered by the 
 lease. The first of these questions has to do with the effect of some 
 personal disability of one of the contracting parties, such as infancy, 
 insanity, or coverture. The second question deals with the rights of 
 persons acting in a representative capacity, such as an agent, execu- 
 tor, or trustee. It would also include the right of a husband to make 
 a lease of lands belonging to his wife, the right of one tenant in com- 
 mon to convey the community lands and the extent to which a cor- 
 poration may alienate its lands by this mode of conveyance. The 
 capacity to execute a lease depends in general upon the capacity to 
 contract, which depends, not upon the peculiar doctrines of the law 
 of landlord and tenant, but upon the law of infancy, the law of con- 
 tracts, or the law of husband and wife, as the case may be. The ques- 
 tion of authority is complicated by the doctrine of estoppel, which 
 precludes a lessee in the full enjoyment of possession from denying 
 the validity of the lessor's title. Although, without any rightful title 
 or interest in the land, a person who can transfer the possession alone 
 can execute a lease which will be binding on the lessee as long as he 
 continues in undisturbed possession of the premises. From this rule, 
 the result may obviously be deduced that a person who has any right- 
 ful title and interest in real estate, coupled with a present possession, 
 may make a valid demise of such property to the extent of his own 
 interest. An estate in fee is not necessary to enable one to execute 
 a valid lease.^*- The actual ownership of the premises is only one 
 element to be considered in determining the question whether the re- 
 lation of landlord and tenant exists between parties. One may be a 
 landlord who is not an owner.^^^ So in the absence of restrictive 
 covenants a valid lease may be made by a tenant for life^^* or by a 
 tenant for years. 
 
 In accordance with these principles a joint lease may be made by 
 adjoining owners who hold severally and not in common. Such a 
 lease of mining land could reserve as rent a royalty to be paid jointly 
 to the lessors, and each lessor would be entitled to share equally in the 
 royalty thus reserved, regardless of what portion of the mine the ore 
 is taken from. The court said in the opinion: "No case has been 
 cited, and I have found none in which distinct contiguous properties 
 
 "= Strickland v. Stiles, 107 Ga. 308, man, 22 Tex. Civ. App. 299, 54 S. W. 
 33 S. E. 85; Goldsmith v. Wilson, 68 246. 
 
 Iowa 685, 28 N. W. 16; Lindsey v. ^'= Lindsey v. Leighton, 150 Mass. 
 Leighton. 150 Mass. 285, 22 N. E. 285, 22 N. E. 901, 15 Am. St. 199. 
 901, 15 Am. St. 199; Cross v. Free- '^* Sykes v. Benton, 90 Ga. 402, 17 
 
 S. E. 1002.
 
 101 PARTIES TO LEASES, [§ 85 
 
 of differont owners have been jointly leased as in this case; though 
 leases by tenants in common have been of frequent occurrence. Yet 
 I have no doubt that the lease in question here was, and is, a valid 
 lease, as seems to be conceded by both parties who differ only as to 
 its effect.""^ 
 
 The estoppel of a tenant to deny his landlord's title must be dis- 
 tinguished from the ancient doctrine as to the transfer of title by 
 estoppel. That doctrine was that where one purported to convey 
 premises in which he had no title, any interest which the grantor 
 subsequently acquired in the premises inured to the benefit of the 
 grantee whose claims the grantor was by estoppel precluded from 
 denying. This doctrine applied with equal force in case of a transfer 
 by way of lease,^^" as in a conveyance of the fee, and the following 
 illustrative case is put by Lord Eaymond : "As if a man makes a 
 lease by indenture of D. in which he hath nothing and afterward pur- 
 chases D, in fee, and afterward bargains and sells it to A. and his 
 heirs; A. shall be bound by this estoppel; and where an estoppel 
 works on the interest of the lands, it runs with the land into whose 
 hands soever the land comes."^^'^ It was laid down in an early Xew 
 York case "that a man shall never be permitted to claim in opposition 
 to his deed ; and that if a man makes a lease of land by indenture, 
 which is not his, . . . and he afterward purchases the land, he 
 shall notwithstanding be bound by his deed and not be permitted to 
 aver he had nothing."^ ^^ 
 
 § 85. The general doctrine of the law is that a person dispos- 
 sessed cannot make a valid conveyance, being disabled both by the 
 common law and by the effect of the statute, 32 Hen. VIII, ch. 9. 
 That this objection applies as well in cases of conveyances of terms 
 for years as of estates in fee was long ago determined^^" and more 
 recent cases show that courts hold themselves as much bound, as at 
 any previous period, to maintain. the principle.^^" However, the state 
 cannot be disseized, and therefore the state may make a valid lease 
 
 ^" Higgins v. California &c. Co., Wms. Real Property 329, 1 Wash. 
 
 109 Cal. 304, 41 Pac. 1087. Real Property (3d ed.) 399. 
 
 '^"Gilman v. Hoare, 1 Salk. 275; '" Trevivan v. Lawrence, 1 Salk. 
 
 Skidmore v. Pittsburg &c. R. Co., 276. 
 
 112 U. S. 33, 5 Sup. Ct. 9; McKenzie '"^Jackson v. Bull, 1 Johns. Cas. 
 
 V. City of Lexington, 4 Dana (Ky.) (N. Y.) 81. 90. 
 
 129; Bank of Utica v. Mersereau, 3 '"^Partridge v. Strange, 1 Plow. 77. 
 
 Barb. ch. (N. Y.) 528; Austin v. '""Doe v. Evans, 1 M. G. &. S. 717, 
 
 Ahearne, 61 N. Y. 6; Jackson v. 50 E. C. L. 716; Doe v. Mclnnis, 6 
 
 Murray, 12 Johns. (N. Y.) 201, U. C. Q. B. 28.
 
 §■ 85] THE INSTRUMENT OF DEMISE. 102 
 
 of lands held adversely to it.^^^ Moreover, if the lessee comes into 
 actual possession, the effect of the lease is not destroyed by the fact 
 that another was in possession claiming title at the time the lease 
 was executed. ^"^ In fact, by the early law of Vermont, an owner 
 while disseized could make a valid transfer of his interest to a lessee 
 by an instrument of demise. ^^^ Nor is it necessary that the owner 
 of land should be in actual possession of it, to enable him to give a 
 valid lease. The undisputed right of possession is sufficient. As 
 where one purchases land at a sheriff's sale and the defendant in 
 the execution has not actually surrendered the possession, yet the 
 purchaser may give a valid lease to a third person, before acquiring 
 possession by ejectment. The defendant is presumed to remain in 
 as tenant to the purchaser and in subordination to his title. It is 
 not for strangers to say that he holds in hostility to the true owner.^^'* 
 So the possession of a tenant for life is not adverse to the remainder- 
 man and hence the latter may make a valid lease notwithstanding 
 such possession.^^^ A lease for years which is granted during the 
 continuance of an outstanding term for years is valid also. It is 
 admitted that the first lessee was in possession claiming a right of 
 possession when the second lessee received his lease. But the lessors 
 had not been ousted from their possession. The first lessee had done 
 the lessors no wrong or injury. He had not disseized or ousted them 
 of the possession; they could not have maintained an action of eject- 
 ment against him. He was their tenant; and the possession of the 
 tenant was the possession of the landlord. The possession of the 
 mortgagor is the possession of the mortgagee. In short the posses- 
 sion of any one who properly holds under the legal proprietor, is the 
 possession of such proprietor."'' A holding can never be adverse when 
 it can be considered as the constructive possession of the real owner. 
 The possession of the first lessee could not have made void a convey- 
 ance of the fee by the lessors, but if the lessors had been disseized, 
 every conveyance they might have made would have been void."^ 
 
 In California the common law right to transfer property which is 
 in the possession of another is supported and enlarged by a provision 
 
 i»^ People V. Mayor &c., 28 Barb. "« Bryan v. Atwater, 5 Day 
 
 (N. Y.) 240. (Conn.) 181; Willison v. Watkins, 
 
 "^Kinsman v. Greene, 16 Me. 60. 3 Pet. (U. S.) 43. 
 
 ^°='Rood v. Willard, Brayt. (Vt.) "'Emerson v. Goodwin, 9 Conn. 
 
 67. 422; Rice v. Wiiitmore, 74 Cal. 619, 
 
 1** Russell v. Doty, 4 Cow. (N. Y.) 16 Pac. 501; Wilbur v. Collin, 4 N. 
 
 576. Y. App. Div. 417. 
 
 ^"^ Grout V. Townsend, 2 Hill (N. 
 Y.) 554.
 
 103 PARTIES TO LEASES. [§ 8G 
 
 in the code. Under the code property of every kind except a mere 
 possibility not coupled with an interest may be transferred; any 
 person claiming title to real property in the adverse possession of an- 
 other may transfer it with the same effect as if in actual possession. 
 Surely it could not then be said that a landowner cannot make a valid 
 lease of his land until all former leases have expired and the tenants 
 have surrendered back to him the possession.^^^ 
 
 § 86. One tenant in common cannot as such make a lease of com- 
 munity land that will bind his fellows. Unless he has authority from 
 his co-tenants he can only lease his own individual share. ^'"^ The 
 law is well settled that a license to use land or a lease of land by 
 some of several tenants in common owning land is invalid as to the 
 others who do not join therein. Such a lease is not void as to those 
 who execute it, but is voidable by the tenants in common who have 
 not joined ;^^*' it being of the essence of a tenancy in common that 
 the tenants have each and equally the right to occupy the property. 
 A lease by one tenant in common of a portion of the estate, in sever- 
 alty, in which the others do not join, violates the rights of the latter 
 and as to them is invalid. -°^ But it has been held that one tenant in 
 common may make a valid parol lease at will of a specific portion of 
 the common property; because such a lease from a tenant in com- 
 mon does not prevent the estate of his co-tenant from having parti- 
 tion, and holding in severalty his full share of the common prop- 
 gj.^y_202 Qq g^ lease of a parcel of land executed by two of three tenants 
 in common confers sufficient title upon the lessee to enable him to 
 maintain an action for possession against a tenant at will of the les- 
 sors. They were entitled to possession against everybody except their 
 tenant in common, and could give a lease of the premises good against 
 every one who does not claim under him.^"^ Where one of two ten- 
 ants in common has acquiesced in a lease for a year executed by his 
 co-tenant alone, and has brought suit against the lessees as holding 
 
 "'Rice V. Whitmore, 74 Cal. 619, bins, 64 Wis. 546, 25 N. W. 713; 
 
 16 Pac. 501, Civ. Code, §§ 1044-1047. Tainter v. Cole, 120 Mass. 162. 
 
 "'Mussey v. Holt, 24 N. H. 248; ="' De Witt v. Harvey, 4 Gray 
 Tainter v. Cole, 120 Mass. 162; Tip- (Mass.) 486; Cunningham v. Pat- 
 ping v. Robbins, 64 Wis. 546, 25 N. tee, 99 Mass. 248. 
 W. 713; Martens v. O'Connor, 101 =°= Rising v. Stannard, 17 Mass. 
 Wis. 18, 76 N. W. 774; Valentine v. 282. 
 
 Healey, 158 N. Y. 369, 52 N. E. 1097, -"^ Grundy v. Martin, 143 Mass. 
 
 reversing 1 App. Div. 502. 279, 9 N. E. 647; Cunningham v. 
 
 ^"o Martens v. O'Connor, 101 Wis. Pattee, 99 Mass. 248. 
 18, 76 N. W. 774; Tipping v. Rob-
 
 § 86] THE INSTRUMENT OF DEMISE. 104 
 
 over for another year under the lease, he is deemed to have adopted 
 the lease as his own and to have recognized the authority of his co- 
 tenant to make it and to treat with third persons in reference to the 
 premises.^"* However, if two persons own land, and one of them 
 rents it by a written lease, he alone has the legal interest in the con- 
 tract, and it is not admissible in evidence in a suit brought by the 
 administrators of both owners — the contract, being a chose in action^ 
 passed at the death of the lessor to his administrator alone.^"^ 
 
 Where one of four tenants in common became dissatisfied with the 
 amount of rent received and notified the lessee that if he continued 
 to hold after a certain date the rent would be at an increased rate, it 
 was held that the dissatisfied co-owner could only recover the reason- 
 able value of the use of the premises.^"'' The lessee had not agreed 
 to pay the increased rental and did not so agree by continuing to 
 occupy. Whatever rights the discontented owner in common had 
 would merely have entitled him to recover back the possession of the 
 premises. 
 
 The circumstance that tenants in common in a certain piece of 
 land are partners as well does not ordinarily increase the authority 
 of one of the co-owners to execute a lease conveying the entire prop- 
 erty. There may be cases where a partner would have power, as such, 
 to make a lease of land binding on the other partners ; but it must be 
 where the lease is made in the prosecution of the partnership business 
 and where the making of the lease was in the exercise of an authority 
 necessarily implied from the nature and object of the partnership.^*^^ 
 
 In the absence of special covenants, the real estate owned by part- 
 ners must be considered theirs in common without any reference 
 to the partnership. The parties are tenants in common, not partners 
 
 '^Valentine v. Healey, 158 N. Y. an owner of property in common 
 
 369, 52 N. E. 1097, reversing 1 App. with other owners he is not entitled 
 
 Div. 502. to dictate the management of their 
 
 2°= Fesmire v. Brock, 25 Ark. 20. interests as well as his own without 
 
 =^Nott v. Owen, 86 Me. 98, 29 Atl. their consent. . . . Were it 
 
 943. Some language in the opinion otherwise any tenant in common 
 
 suggests a doctrine in conflict with would have the power by his per- 
 
 the authorities, such as the follow- verseness to actually destroy the 
 
 ing: "The plaintiff's proposition valuable use of the common proper- 
 
 that the tenant can not rightfully ty. The law frowns upon the idea 
 
 occupy the store at all unless there of any such despotic power being 
 
 be an agreement with him for the possessed by an owner in common 
 
 occupancy of his one-quarter is far over the common property." 
 from tenable. Were he a sole =»' Mussey v. Holt, 24 N. H. 248^ 
 
 owner, he could manage his own 254. 
 property in his own way. But as
 
 105 PARTIES TO LEASES. [§ ST" 
 
 in the land. The principles and rules of law applicable to partner- 
 ships, and which govern and regulate the disposition of the partner- 
 ship property, do not apply to real estate. ^"^ When a lease is exe- 
 cuted by a firm composed of several members, the covenants thereto 
 are several as well as joint, and each individual member of the firm 
 is liable thereon.-*^^ 
 
 § 87. Leases by and to married women. — At common law mar- 
 riage makes the husband and wife one person; suspending the legal 
 capacity or existence of the wife during the coverture, depriving her 
 of a free will, and subjecting her to obedience to her husband.^ ^" The 
 wife cannot enter into any contract with any person, her capacity to 
 , do so being suspended during coverture and therefore her promise or 
 contract of any kind is absolutely void.^^^ So at common law a lease 
 by a married woman was in no way binding upon lier.^^^ As a gen- 
 eral rule a deed by a married woman was void and incapable of be- 
 ing confirmed, but an exception was made in favor of a lease, which 
 could be confirmed by the wife after the death of her husband.^^^ So 
 where a lease by deed was executed by the husband and wife jointly, 
 the wife could, upon the death of the husband, confirm the lease, al- 
 though it was not in the first instance binding upon her after his 
 death.2i* 
 
 Although the wife cannot in any manner make a valid contract, 
 she may take property as grantee, but her husband can avoid the gift 
 or purchase by dissent, and she, on becoming discovert, may repudiate 
 and annul it.^^^ So at common law a married woman could not take 
 a lease and thereby render the covenants on her parts binding on 
 
 2»8 Coles V. Coles, 15 Johns. (N. Y.) ='= Goodright v. Straphan, 1 Cowp. 
 
 159; Thornton v. Dixon, 3 Bro. C. C. 201. 
 
 199; Balmain V. Shore, 9 Ves. 500. ^^ Sanborn v. French, 22 N. H. 
 
 ^o'Dunn V. Jaffray, 36 Kan. 408, 13 246; Ela v. Card, 2 N. H. 175; Nash 
 
 Pac. 781. V. Berkmeir, 83 Ind. 536. 
 
 =^»1 Bl. Com. 442, Litt., §§ 112b, =» Toler v. Slater, L. R. 3 Q. B. 
 
 168, 1 Bishop M. & D., §§ 754-760. 42; Atherstone v. Huddleston. 2 
 
 '^^Co. Litt., 112a, 1 Bl. Com. 442; Taunt. 181; Greenwood v. Tyber, 
 
 Brittin v. Wilder, 6 Hill (N. Y.) Cro. Jac. 563. 
 
 242.; Edwards v. Davis, 16 Johns. ="> Scanlan v. Wright, 13 Pick. 
 
 (N. Y.) 281; Young v. Paul, 10 N. J. (Mass.) 523; Gordon v. Haywood, 2 
 
 Eq. 401; Wallace v. Rippon, 2 Bay N. H. 402; Junction R. Co. v. Harris, 
 
 (S. Car.) 112; Dorrance v. Scott, 3 9 Ind. 184; Brackett v. Wait, 6 Vt. 
 
 Whart. (Pa.) 309; Johnston v. 411; Co. Litt. 3a, 356b; 2 Bl. Com. 
 
 Jones, 12 B. Mon. (Ky.) 326; Har- 292; 2 Kent Com. 150. 
 ris V. Taylor, 3 Sneed (Tenn.) 536; 
 Stephenson v. Osborne, 41 Miss. 119.
 
 § 87] THE INSTRUMENT OF DEMISE. 106 
 
 her/^® but where possession was taken under a lease to her, her hus- 
 band was liable in an action for use and occupation. ^^'^ If a married 
 woman took a lease and in fact voluntarily performed all the stipula- 
 tions on her part to be performed, the lessor would not be allowed to 
 treat the lease as void, for that would be against equity and good 
 conscience.^^^ However, in one case a married woman was not al- 
 lowed to recover rent on an invalid lease executed by her, although 
 some of the lessees had occupied the premises by virtue of the lease.^^* 
 
 Where by statute all real and personal jjroperty of a married woman 
 is declared to be her sole and separate property, subject to her con- 
 trol, the power is necessarily conferred to sell and convey without the 
 husband's consent, and such a statute so modifies the common law as 
 to enable her to make valid contracts in regard to her real estate and 
 personal property, and to execute a lease which shall bind all the 
 parties to it.^^^ But to be bound by the contract the married woman 
 must follow the mode of contracting pointed out by the statute.^^^ 
 The statutes enabling a married woman to receive, hold, manage and 
 dispose of real and personal property in the same manner as if she 
 were sole, cannot be construed to apply to the estate by entireties of 
 husband and wife, where other statutes prevent this conveyance from 
 being construed as creating a tenancy in common.^'- The decisions 
 in many states upon the effect of such statutes turn more or less upon 
 the particular terms of the statutes. Many cases hold that these 
 statutes do not affect estates by entireties. ^^^ In a few other juris- 
 dictions the contrary conclusion has been reached.^^* 
 
 The Mississippi code in its provision regarding the renting of lands 
 and personalty between husband and wife applies only to persons deal- 
 ing without notice, while a similar section regarding transfers and 
 
 '^'Westervelt v. Ackley, 62 N. Y. ==^ Bertles v. Nunan, 92 N. Y. 152; 
 
 505. Marburg v. Cole, 49 Md. 402; Hulett 
 
 ^^ Vincent v. Buhler, 1 Daly (N. v. Inlow, 57 Ind. 412; Hemingway 
 
 Y.) 165. v. Scales, 42 Miss. 1; McCurdy v. 
 
 =^» Baxter v. Smith, 6 Binn. (Pa.) Canning, 64 Pa. St. 39; Diver v. 
 
 427; Ray V. Western Pa. &c. Co., 138 Diver, 56 Pa. St. 106; Fisher v. 
 
 Pa. St. 576, 20 Atl. 1065, 21 Am. St. Provin, 25 Mich. 347; Robinson v. 
 
 922. Eagle, 29 Ark. 202; McDuff v. Beau- 
 
 "'Schenck v. Stumpf, 6 Mo. App. champ, 50 Miss. 531; Rogers v. 
 
 381. Grider, 1 Dana (Ky.) 242; Den v. 
 
 2=^ Parent v. Callerand, 64 111. 97. Hardenbergh, 10 N. J. Law 42. 
 
 "'Keller v. Klopfer, 3 Colo. 132; ''"Cooper v. Cooper, 76 111. 57; 
 
 Carlton v. "Williams, 77 Cal. 89, 11 Hoffman v. Stigers, 28 Iowa 302; 
 
 Am. St. 243. Clark v. Clark, 56 N. H. 105. 
 
 "' Pray v. Stebbins, 141 Mass. 219, 
 4 N. E. 824.
 
 107 PARTIES TO LEASES. [§ 87 
 
 conveyances contains no clause in regard to notice. The result is 
 that in contracts of the former class persons with notice are bound 
 by the contract between the husband and the wife. The doctrine of 
 estoppel has no application, but notice alone is sufficient to bind all 
 persons dealing with one spouse in adverse interest to that of the 
 other.^^^ 
 
 In Maine it is provided that real estate directly or indirectly con- 
 veyed to a married woman by her husband, or paid for by him or 
 given or devised to her by his relatives, cannot be conveyed by her 
 without the joinder of her husband."'' The question presented to the 
 court in one case under this statute was whether a lease was a con- 
 veyance within the meaning of the act. The court thought it was 
 not. The word convey or conveyance must refer to an alienation 
 of the estate,— a transference of the title. It is "real estate" that 
 cannot be conveyed. A lease is personal property. It bargains away 
 a temporary possession, — does not dispose of any fee or title. There 
 is no inhibition against a sale of personal property by the wife alone, 
 although given to her by her husband. The statutory provision under 
 review should not be very generously interpreted for the husband 
 when the rights of third persons are likely to be inperiled thereby."^ 
 
 By an Indiana statute there is an absolute denial of power to a 
 married woman "to encumber or convey her lands'' except by deed 
 in which her husband shall join.^^^ The ordinary lease of agricul- 
 tural lands, for the purpose of cultivation, although carrying an in- 
 terest in the lands has been held not to fall within the inhibition of 
 this statute.229 gy statute the lands of a married woman, and the 
 rents and profits therefrom, are her separate property. To realize 
 rents, lands must be let ; so it seems that a lease for a term not ex- 
 ceeding three years is not an encumbrance or conveyance within the 
 meaning of the act. Oil and gas leases differ from agricultural leases 
 in that they may carry a substantial and enduring interest in the 
 freehold. But in their primary effect, they part with no immediate 
 title or estate and carry but a right of exploration. For the purpose 
 of prospecting, such leases involve a mere use, and part with no 
 greater interest in the freehold than the ordinary agricultural lease. 
 For such purpose there is no doubt as to the right of a married woman 
 
 "'^ Underwood v. Ainsworth, 72 ^-^ Burns' R. S. 1894, § 6961. 
 
 Miss. 328, 18 So. 379. =^» Pearcy v. Henley, 82 Ind. 129; 
 
 ""R. S., c. 61, § 1. Nash V. Berkmeir, 83 Ind. 536; 
 
 -' Perkins v. Morse, 78 Me. 17, 2 Indianapolis, City of, v. Kingsbury, 
 
 Atl. 130. 101 Ind. 200, 51 Am. R. 749.
 
 § 88] THE IXSTRUilEXT OF DEMISE. 108 
 
 to make a lease without her husband joining."" But an absolute 
 conveyance of all the oil and gas under certain land has been held to 
 be within the prohibition of the statute.^^^ 
 
 The interest of a surviving spouse in real estate before dower or 
 homestead has been assigned is not such as to enable him to make a 
 valid lease against the right of the administrator to sell the prop- 
 erty to pay debts of the estate.-^- It is a rule of property that a sur- 
 viving husband or wife cannot sell and convey the right of dower and 
 homestead to a person other than the owner of the fee, or lease the 
 same before dower and homestead have been set off and assigned.-^^ 
 
 § 88. Rig^ht of husband to lease wife's real estate. — If there is no 
 ante-nuptial contract or enabling statute, the marriage vests in the 
 husband an estate in all the wife's real property in her possession at 
 the time of the marriage or which comes to her during the marriage, 
 to last during the joint lives of himself and wife, he being seized 
 thereof with his wife in her right, and the death of the wife or death 
 of the husband will end it.^^* This control which a husband has over 
 the real estate of his wife, gives him the right to grant leases of it. 
 He has, during coverture, the usufruct of all the real estate which his 
 wife has in fee simple, fee tail, or for life.^^^ "By the great weight 
 of authority, the husband has the right to make a lease of an estate 
 conveyed in fee to him and his wife, which will be good against the 
 wife during coverture, and will fail only in the event of his wife sur- 
 viving him."-^^ Such a lease by the husband alone could not be con- 
 
 ^"Heal v. Niagara Oil Co., 150 463; Guion v. Anderson, 8 Humph. 
 
 Ind. 483, 50 N. E. 482. (Tenn.) 298; Shallenberger v. Ash- 
 
 ='' Columbian Oil Co. v. Blake, 13 worth, 1 Casey (Pa.) 152; Evans v. 
 
 Ind. App. 680, 42 N. E. 234. Kingsberry, 2 Rand. (Va.) 120. 
 
 "■^- Union Brewing Co. v. Meier, 163 -^^ Pray v. Stebbins, 141 Mass. 219, 
 
 111. 424, 45 N. E. 264. 4 N. E. 824. 
 
 ^''Best v. Jenks, 123 111. 447, 15 =="« Washburn v. Burns, 5 Vroom. 
 
 N. E. 173. (N. J.) 18; Barber v. Harris, 15 
 
 ^* Kelly on Contracts of Married Wend. (N. Y.) 615; Jackson v. Mc- 
 
 Women, p. 38; Robertson v. Norris, Connell, 19 Wend. (N. Y.) 175; Top- 
 
 11 Q. B. 916, 63 E. C. L. 916; Har- ping v. Sadler, 5 Jones L. (N. Car.) 
 
 court V. Wyman, 3 Exch. 817; Cheek 357; Fairchild v. Chastelleux, 1 
 
 v. Waldrum, 25 Ala. 152; Bishop v. Barr (Pa.) 176; Pollok v. Kelly, 6 
 
 Blair, 36 Ala. 80; Montgomery v. Ir. C. L. 367, 375; Bertles v. Nunan, 
 
 Tate, 12 Ind. 615; Gregory v. Ford, 92 N. Y. 152; Wyckoff v. Gardner, 
 
 5 B. Mon. (Ky.) 471; Beale v. Spencer (N. J.) 556; Ames v. Nor- 
 
 Knowles, 45 Me. 479; Jackson v. man, 4 Sneed (Tenn.) 683; Ward 
 
 Cairns, 20 Johns. (N. Y.) 301; v. Ward, L. R. 14 Ch. D. 506; God- 
 
 Clapp v. Stoughton, 10 Pick. (Mass.) frey v. Bryan, L. R. 14 Ch. D. 516.
 
 109 PARTIES TO LEASES. [§ 89 
 
 firmed, for the balance of the term, by the wife on the death of her 
 husband. Though it be admitted that the lease of a husband is only 
 binding on his wife during his lifetime, it might be contended that 
 by her acceptance of rent and apparent acquiescence in the lease 
 after she became discovert she would affirm it and become bound by 
 its provisions. This would be so, no doubt, if she had originally 
 joined her husband in the lease, for then she might, after her hus- 
 band's death, affirm the act or avoid it according to her election. But 
 the principle has been laid down in accordance with the weight of 
 authority that a mere verbal lease by husband and wife of her lands, 
 or a written lease to which she is not a party, is void as to the wife.^^^ 
 
 So in regard to the leasehold estates of a married woman, the rule 
 is that the husband acquires all the chattels real, legal or equitable, 
 of which the wife is possessed at the marriage, provided he does some 
 act of appropriating them or survive his wife. The husband could 
 under-let and the under-lease would be good for the entire term, even 
 though the husband died during the term and his wife survived him.^^^ 
 A sub-lease by a husband to commence at his death would be valid, 
 although his wife survived him,-^^ and a covenant by a husband to 
 sublet was held binding upon the estate after the death of the hus- 
 band.^^o 
 
 By statute in Washington community lands, that is, those held by 
 husband and wife jointly, can only be leased by the assent and signature 
 of both parties. However, where such lands have been leased by an 
 instrument signed by one party only, the lessee cannot repudiate the 
 lease without first demanding a valid lease from the lessor and giv- 
 ing him an opportunity to execute a valid lease.^^^ Wliile a husband 
 could not execute a valid lease of community lands, still his lease 
 would not be absolutely void. If the lessees had been ousted there is 
 no good reason why they could not have maintained an action for 
 damages upon the breach of the covenant for quiet enjoyment. If 
 the lessees had no notice that the property was community property 
 when the lease was executed, they could not be charged as standing 
 in the position of wilful violators of the law.^*^ 
 
 § 89. Guardians. — Although it has been said to be a well-settled 
 principle that a guardian cannot by his contract bind the person or 
 
 ""Winstell v. Hehl, 6 Bush (Ky.) "'Isaacs v. Holland, 4 Wash. 54, 
 
 58. 29 Pac. 976; Tryon v. Davis, 8 
 
 ««Loftus' Case, Cro. Eliz. 279. Wash. 106, 35 Pac. 598. 
 
 ""Grute v. Loeroft, Cro. Eliz. 287. =*= Isaacs v. Holland, 4 Wash, 54, 
 
 ^« Steed v. Cragh, 9 Mod. 43. 29 Pac. 976.
 
 § 89] THE IXSTRUMENT OF DEMISE. 110 
 
 estate of his ward,-*^ there is no doubt but that a guardian may lease 
 the lands of the ward during infancy, if the guardianship so long 
 continue.^** In case the demise were from year to year, if another 
 guardian were appointed, the term would cease. Where a lease was 
 made by a guardian, the reservation of rent to the infant was proper, 
 and could not be likened to the reservation of rent to a stranger; 
 for the inheritance being in the ward, there is privity between him 
 and the lessee. It is true, also, that the guardian may, by a lease in 
 writing, reserve the rent to himself to cover advances which he may 
 make for the use of the ward, and in that case the action for rent must 
 be brought in his own name unless he assign the lease to the ward.-*^ 
 Except when licensed by the judge of probate to sell the real estate 
 or to mortgage it, the power of the guardian is by most modern stat- 
 utes limited to leasing and to the reception of the rents and profits.-*^ 
 The power to lease any of the ward's property of such character as to 
 be the subject of a lease does not carry with it the right to dispose of 
 any part of the realty. It follows that as oil is a mineral, and being 
 a mineral, is part of the realty, a guardian cannot grant an oil and 
 gas lease of land of his ward, as that would in effect be the grant of 
 a part of the corpus of the estate of the ward. Not infrequently the 
 oil forms by far the most valuable part of an estate, and to permit a 
 guardian to dispose of it at will and without security would often 
 lead to consequences disastrous to his ward.^*^ The foregoing state- 
 ments as to the powers of guardians applies only to guardians of an 
 infant's estate and not to a natural guardian or a guardian for 
 nurture, because a guardian for nurture has not even the right of pos- 
 session of his ward's real estate and hence would have no right to 
 bring ejectment for it.^*^ It was laid down in an early authority that 
 
 ^*^ Jones v. Brewer, 1 Pick. Paige (N. Y.) 390; People v. Inger- 
 
 (Mass.) 314. soil, 20 Hun (N. Y.) 316, 58 How. 
 
 =" Ross V. Gill, 1 Wash. (Va.) 87; Pr. 351; Ronald v. Barkley, 1 
 
 Windon v. Stewart, 43 W. Va. 711, Brock. (U. S.) 356; Rex v. Sutton, 
 
 28 S. B. 776; Stoughton, Appeal of, 3 A. & E. 597; Wade v. Baker, ILd. 
 
 88 Pa. St. 198; Hughes' Appeal, 53 Raym. 130. 
 
 Pa. St. 500; Weldon v. Lytle, 53 =^= Ross v. Gill, 1 Wash. (Va.) 87; 
 
 Mich. 1, 18 N. W. 533; Kinney v. =" Kinney v. Harrett, 46 Mich. 87, 
 
 Harrett, 46 Mich. 87, 8 N. W. 708; 8 N. W. 708. 
 
 Huff V. Walker, 1 Ind. 193; Snook =" Stoughton, Appeal of, 88 Pa. St. 
 
 V. Sutton, 10 N. J. Law 133; Hutch- 198; Wilson v. Youst, 43 W. Va. 826, 
 
 ins V. Dresser, 26 Me. 76; Richard- 28 S. E. 781. 
 
 son V. Richardson, 49 Mo. 29; Gra- =*' Kinney v. Harrett, 46 Mich. 87, 
 
 ham v. Chatoque Bank, 5 B. Mon. 8 N. W. 708; Anderson v. Darby, 1 
 
 (Ky.) 45; Putnam v. Ritchie, 6 Nott & McC. (S. Car.) 369; May v.
 
 Ill PARTIES TO LEASES. [§ 93 
 
 a guardian for nurture has only the care of the person and education 
 of the infant and has nothing to do with his lands, and that he cannot 
 make a lease of them for years, either in his own name or in that of 
 the infant.^''^ 
 
 In Illinois the only power a guardian has over the real estate of his 
 ward is to lease it upon such terms and for such length of time as 
 the county court shall approve. As respects the minors, a lease pur- 
 porting to be made by their guardian, but withoiit the approval of the 
 court, is voidable. Such a lease is not void, however, and all that can 
 be reasonably claimed under the statute is that a lease made by a 
 guardian may be rejected and set aside by the court, but it may be 
 regarded as binding until the court should examine it and refuse ap- 
 proval.^^" 
 
 The Iowa statute regarding guardians provides that "they must 
 also, in other respects, manage their (wards') interests under the di- 
 rection of the court. They may thus lease their land or loan their 
 money during their minority, and may do all other acts which the 
 court may deem for the benefit of the wards." The effect of this is 
 that guardians must manage the interests of their wards under the 
 direction of the probate court. The statute implies an inhibition 
 upon the doing of these acts without the direction of the court."^ 
 So a lease made by a guardian is invalid, or voidable at least, unless 
 ordered or approved by the proper probate court. If a lease be made 
 without such order or approval, it could be avoided upon proof of 
 unconscionable inadequacy of the rent reserved, if indeed the instru- 
 ment was not absolutely void.^^^ 
 
 § 90. Except in regard to the duration of the terms, there seems 
 to be no restriction as to the mode in which the guardian must pro- 
 ceed in effecting a lease of his ward's land. A lease for a crop rent 
 would be valid. The guardian would have the legal right to make 
 such an arrangement, and if the land were sold under a probate li- 
 cense to a person with notice of the lotting, the cropper's rights would 
 not be affected by the sale.^^* It is the duty of the trustees or 
 
 Calder, 2 Mass. 55; Ross v. Cobb, 9 =» Field v. Herrick, 5 111. App. 54, 
 
 Yerg. (Tenn.) 463; Magruder v. Pe- affirmed in 101 111. 110. 
 
 ter, 4 Gill & J. (Md.) 323. "^ Bates v. Dunham, 58 Iowa 308, 
 
 =^' 3 Bacon Abr. Guardian G. 15, 12 N. W. 309. 
 
 414; Comyn Landlord & Tenant 45; ""Alexander v. Bufflngton, 66 
 
 May v. Calder, 2 Mass. 55; Ross v. Iowa 360, 23 N. W. 754. 
 
 Cobb, 9 Yerg. (Tenn.) 463; Ander- =•■' Weldon v. Lytle, 53 Mich. 1, 18 
 
 son v. Darby, 1 Nott & McC. (S. N. W. 533. 
 Car.) 369.
 
 § 90] THE INSTRUMENT 0? DEMISE. 112 
 
 guardians of infants to lease the lands of their wards, as the wards 
 are incapable of acting for themselves, and they must collect the rents 
 and account for them.^^* In common with all other kinds of fidu- 
 ciaries no more is required of guardians than that they act in good 
 faith and with the same prudence and discretion that a prudent 
 man is accustomed to exercise in the management of his own af- 
 fairs.^^"^ Common skill, common caution, common prudence are all 
 that can be required. That a guardian did not rent at public renting 
 is not a sign of fraud where the law does not require a public rent- 
 
 The right of a guardian to lease his ward's lands is limited strictly 
 to the infancy of the ward, and if a lease by the guardian exceed the 
 time when the ward will be twenty-one, it is void. So where a lease 
 provided that the term should continue till the ensuing year after 
 the infant came of age unless he thought proper, in pursuance of the 
 power reserved to him, to put an end to it, the entire lease was void ; 
 because the power did not affect the main stipulation, as it was col- 
 lateral, and might never be exercised.^^^ The reason of this rule is, 
 that the age of the infant and, by consequence, the time when the 
 wardship and incapacity of the infant will terminate, are well known. 
 There is no such certainty in the case of a wardship which can only 
 be determined by the death of the ward. The guardian of a person 
 non compos mentis has no power to create a term which will remain 
 valid beyond the lifetime of the ward. In case the ward dies during 
 the term of the lease, the lease though good up to the time of his 
 death, becomes by that event invalid as against his heirs and probably 
 against his administrators. But the lease is not so absolutely void 
 for the remainder of the terms as to be incapable of confirmation by 
 the heirs and other parties claiming under the ward. If such parties 
 chose to confirm it, it becomes binding upon both them and the 
 lessees. However, the lessees would not be bound to accept a con- 
 firmation by a part of the heirs or other persons who had a right to 
 disaffirm it, without the whole.^^^ 
 
 Furthermore, the right of the guardian to lease his ward's lands 
 is limited to such time as he shall continue to be guardian. On the 
 
 *" Field V. Schieffelin, 7 Johns. ="Windon v. Stewart, 43 W. Va. 
 
 Ch. (N. Y.) 150; Byrne v. Van 711, 28 S. E. 776. 
 
 Hoesen, 5 Johns. (N. Y.) 66; Genet "^Ross v. Gill, 4 Call (Va.) 250; 
 
 V. Tallmadge, 1 Johns. Ch. (N. Y.) 2 Kent's Com. 255. 
 
 561. ^'''Campau v. Shaw, 15 Mich. 226. 
 
 ""Myers v. Zetelle, 21 Grat. (Va.) 
 758.
 
 113 PARTIES TO LEASES. [§ 91 
 
 appointment of another guardian, the former guardian's power to 
 lease, and all leases made by him of the ward's lands, cease.^^® 
 
 § 91. Trustees have a general power of leasing, if the lease does 
 not exceed the quantity of estate that is in them and is a reasonable 
 one.^®" In an early case in New York it was held that trustees under 
 a will "had authority to grant leases for such length of time and 
 upon such terms as they might think proper, and at law all suck 
 leases would be valid. But, although good at law whatever may be 
 their terms, they are, nevertheless, subject to the supervisory juris- 
 diction exercised by courts of equity over every species of trust. As, 
 however, the will in this case contained no limitation, either express 
 or implied, upon the powers which the trustees possessed as incident 
 to their legal estate, the only ground upon which a court of equity 
 can interfere with leases executed by them is, that such leases are to 
 be regarded, in view of the duration of the trust estate and the ob- 
 ject of the trust, as an abuse or grossly improvident exercise by the 
 trustees of the powers with which they are clothed. In all such cases 
 if the trustee act honestly, and with a reasonable degree of prudence 
 and foresight, their acts are to be upheld."^" Not only is a trustee 
 authorized to grant leases of the trust property, but that mode of deal- 
 ing with property which is expected to yield a monetary return is 
 the rule and not the exception. So that in a case where a plantation 
 was placed in the hands of a trustee, a special authorization was 
 necessary to entitle him to exercise personal supervision over the 
 management rather than renting it out.^'''^ It is not unusual for an 
 owner of farm lands to grant a lease of them for a term of years, and 
 so a trustee would have the implied power to do so if there was noth- 
 ing in the instrument creating the trust to restrict him.^^s 
 
 It is a general rule that trustees of a charitable use should only 
 lease for years unless they have obtained an order of the court to 
 
 258 Emerson v. Spicer, 55 Barb. v. Dodswell, 13 Ves. Jr. 266; City of 
 
 (N. Y.) 428; Sylvester v. Ralston, Richmond v. Davis, 103 Ind. 449, 3 
 
 31 Barb. (N. Y.) 286; Holmes v. N. E. 130. 
 
 Seely, 17 Wend. (N. Y. ) 75; Put- =" Greason v. Keteltas, 17 N. Y. 
 
 nam v. Ritchie, 6 Paige (N. Y.) 390, 491, 494, per Selden, J. To same 
 
 399; Roe v. Hodgson, 2 Wils. 129, effect see Cone v. Corse, 144 N. Y. 
 
 135 569, 39 N. E. 630, and Middleton v. 
 
 ^o" Hutcheson v. Hodnett, 115 Ga. Dodswell, 13 Ves. 266. 
 
 990, 42 S. E. 422; Naylor v. Arnitt, ="= Dennis v. Dennis, 15 Md. 73. 
 
 1 R. & M. 501 ; Bowes v. East Lon- "-'" Hutcheson v. Hodnett, 115 Ga. 
 
 don &c. Co., Jac. 324; Drohan v. 990, 42 S. E. 422. 
 Drohan, 1 Ball & B. 185; Middleton 
 Jones L. & T.— 8
 
 § 92] THE INSTRUMENT OF DEMISE. 114 
 
 lease for a longer term. However, where the terms of the lease are 
 fair and reasonable, and for the benefit of the charity, the court, on 
 being satisfied of these facts, has upheld leases granted by trustees 
 for long terms, such as eighty years, or even for so long an absolute 
 term as amounts in fact to an alienation. ^^'^ Even where such leases 
 are set aside, the court, whenever equity requires it, will protect the 
 rights of the party who, acting under such lease, has in good faith 
 made permanent improvements upon the demised land, and will 
 allow him the reasonable value of such improvements.^*'^ 
 
 Where a trustee rightfully and legally assumes in his representative 
 capacity the relation of landlord, he is liable in that capacity to an- 
 swer to the tenant for the violation of any duty which the general 
 law attaches as an incident to that relation. Accordingly, where a 
 trustee, duly authorized, rented a store belonging to the trust estate, 
 and in the contract of rental bound himself by a formal covenant 
 to keep the shelving in the store in thorough order and repair, the 
 trust estate was liable in damages for his failure to do so. The ulti- 
 mate liability of the trustee to the cestui que trust is not involved in 
 such a suit. As far as the tenant is concerned he is entitled to a 
 judgment against the trust estate for whatever damages he may have 
 sustained.^^^ 
 
 Where a mere naked trustee, with the consent of the cestui que trust 
 having the beneficial title and right to the possession, leases the trust 
 property, the leasing will be regarded as the act of the cestui que tru^t, 
 and he will be entitled to whatever rights belong to the landlord.^^^ 
 
 § 92. Infancy of lessee. — Leases to infants are not absolutely 
 void; they are but voidable, and it is not for third persons to set up 
 the defense of infancy. However, a lease to an infant is voidable 
 upon his own application and may be avoided by the infant lessee 
 when he comes of age.^''^ But* he cannot, by putting an end to the 
 lease, recover back any consideration which he has paid for it; the 
 
 '" Richmond v. Davis, 103 Ind. =*" White v. Cannon, 125 111. 412, 
 
 449, 3 N. E. 130; Hill on Trustees 17 N. E. 753. 
 
 463. =«» Field v. Herrick, 101 111. 110, 
 
 ^^ Richmond v. Davis, 103 Ind. affirming 5 111. App. 54; Griffith v. 
 
 449, 3 N, E. 130; Att'y General Schwenderman, 27 Mo. 412; Holmes 
 
 v. Baliol College, 9 Mod. 407; Att'y v. Blogg. 2 Moo. 552, 8 Taunt. 508, 
 
 General v. Backhouse, 17 Ves. 283; 4 E. C. L. 252; Cheshire v. Barrett, 
 
 Second Unitarian Soc. v. Woodbury, 4 McCord L. (S. Car.) 241, 17 Am. 
 
 14 Me. 281. Dec. 735; Roberts v. Wiggin, 1 N. 
 
 '«« Miller v. Smythe, 92 Ga. 154, 18 H. 73, 8 Am. Dec. 38. 
 S. E. 46.
 
 115 PARTIES TO LEASES. [§ 9^ 
 
 law does not enable him to do that. He may, it is true, avoid the 
 lease ; he may escape the burden of the rent and avoid the covenants ; 
 but that is all he can do.-'^^ Lord Mansfield once said in delivering 
 his opinion in a famous case before the House of Lords: "If an in- 
 fant pays money with his own hand without a valuable consideration 
 for it, he cannot get it back again.""o In one case the lessee who 
 was an infant at the time the lease was made, became of age before 
 the expiration of the term but continued to occupy the leased prem- 
 ises until the end of it. Even if his infancy would have been other- 
 wise available, this continuance in possession subsequent to his be- 
 coming of age was a ratification of the lease, and rendered all its 
 provisions obligatory upon him.^" It is laid down in an ancient 
 authority that if an infant take a lease rendering rent and continue 
 in possession several years after he comes of age it is a confirmation 
 of the contract ah initio and he is bound for the rent in arrear.-" 
 So if the term be from month to month and the infant, after reach- 
 ing full age, holds over after the expiration of a month, such holding 
 over is a ratification of the lease so as to render him liable for the 
 rent in arrear during his occupancy before as well as after attaining 
 his majority.2" Indeed, the mere fact that an infant has enjoyed 
 the possession of premises up to a rent day has been held to make him 
 liable for rent even without the concurrent circumstance that he has 
 prior thereto come of age,"* There is a dictum to the contrary by 
 Baron Parke,"^ based on a passage from Bacon."« Chief Baron. 
 Pigot,"' however, thought that the proposition in Bacon was not borne 
 out by the authorities cited. He was of opinion that if the infant 
 does not avoid the tenancy under which he occupies before the rent 
 becomes due, the mere fact of infancy constitutes no defense. Ac- 
 cording to the authorities the infant owes the rent, because he has 
 an equivalent in the occupation and enjoyment of the land. The 
 reason given by Justice Newton lies at the root of the infant's lia- 
 bility ; "he has had a quid pro quo.""^ So if the infant continues to 
 
 '«» Holmes v. Blogg, 2 Moo. 552, 8 ^* North Western R. Co. v. 
 
 Taunt. 508, 4 E. C. L. 252. M'Michael, 5 Ex. 114, 125. 
 
 2'" Drury v. Drury, 2 Eden 39, 72. ="" Bacon's Abr. Infancy and Age 
 
 =" Baxter v. Bush, 29 Vt. 465. (I) 8, where it is said that the case 
 
 '"^Ketsey's Case, Cro. Jac. 320; in 2 Bulst. 69, is the same as Ket- 
 
 Cheshire v. Barrett, 4 McCord L. say's Case, Cro. Jac. 320, but that in 
 
 (S. Car.) 241, 17 Am. Dec. 735; the former report no notice was 
 
 Bacon's Abr. Infancy and Age (I) 8. taken of the fact that the infant 
 
 "^ Harris v. Knowles, 26 Wkly. N. had come of age. 
 
 Cas. 249. "' Blake v. Concannon, Ir. R., 4 
 
 ^'♦Kirton V. Eliott, 2 Bulst. 69. C. L. 323.
 
 § 93] THE INSTRUMENT OF DEMISE. IIG 
 
 occupy without repudiation, the landlord, on the accruing of the rent, 
 has a vested right of suit against the infant for the rent which has so 
 accrued. 
 
 § 93. Executors and administrators. — Except in the states where 
 an authority is conferred by statute, the executor or administrator is 
 not entitled or bound to take charge of the real estate of his testator 
 or intestate, unless he is ordered by the probate court to sell or lease 
 it to pay debts and legacies."^ In about half the states of the United 
 States statutes exist which confer a greater or less amount of author- 
 ity upon a personal representative to deal with the real estate of a 
 deceased person. Even when a right of possession is conferred by 
 statute, it would cease when the estate is settled; so a lease which 
 extends beyond the time when the administration is wound up, would 
 be voidable at the election of the heirs. The right to lease is conferred 
 by the statutes for the purpose of administration and is limited to 
 that period. If, however, the heirs did not elect to terminate the 
 lease, but recognized its validity and the tenancy under it during 
 the term named, it was afterward of no consequence that it might 
 have been avoided. Furthermore, the heirs could not ratify the lease 
 without accepting all its terms.-^" But any lease for a definite term 
 is subject to termination by final distribution of the estate and the 
 discharge of the administrator.^^i In Michigan the statute gives to 
 the executor the right to lease the real estate of his testator from year 
 to year subject to the contingency that the estate be not settled in the 
 meantime. The term from "year to year" as used in the statute 
 should be construed according to the well-understood meaning of the 
 term. So a lease by executors for a two-year term, being void, cre- 
 ates a tenancy from year to year, as in ordinary cases, terminable at 
 the expiration of one year from the time of the service of a notice to 
 quit.2^2 jn Arkansas the statutory authority of an administrator 
 
 *'*21 Hen. 6, 31b. allow technical leases from year to 
 
 "^Woerner on Administration, 2d year. It is well known that farm- 
 ed., p. 715; Grady v. Warrell, 105 ing lands are leased in the spring. 
 Mich. 310, 63 N. W. 204. Such a lease for a single year does 
 
 ^ Smith V. Park, 31 Minn. 70, 16 not permit the raising of a crop of 
 
 N. W. 490. wheat, which is the great staple 
 
 ^'^ Doolan v. McCauley, 66 Cal. 476, crop of the state, and without the 
 
 6 Pac. 130. privilege of raising which the rent- 
 
 *«^ Grady v. "Warrell, 105 Mich. 310, al value of farming lands would be 
 
 63 N. W. 204. The court says: lessened. . . We therefore con- 
 
 "There are reasons for thinking the elude that we should construe this 
 
 legislature may have intended to statute according to the well under-
 
 117 PARTIES TO LEASES. [§ 94 
 
 to deal with his intestate's lands is narrowly confined. The authority 
 of the lawful administrator to sue for the rents of real estate does not 
 follow. The statute confers the power upon an administrator to 
 control the lands of his intestate for the purpose of paying debts. 
 His authority in that respect is derived solely from the statute, for at 
 common law the administrator had nothing whatever to do with the 
 lands of his intestate. After the lands were no longer needed for the 
 purposes of administration, the administrator would have no power 
 to control the rents."^^ In Utah the statutory authority of executors 
 to lease land belonging to their intestate is such that written authority 
 from the others is necessary to enable a minority to contract for the 
 estate if the others are in the state and not under disability.-*"' So 
 where one of six executors executed a lease without written authority 
 from the other five, such instrument was invalid by the statute of 
 frauds. ^^^ 
 
 Moreover, if an administrator leases land in pursuance of a power 
 conferred by statute he must comply with the requirements of the 
 statute as to the mode of effecting the contract. If the statute enacts 
 that the lease shall be made at public outcry, a renting by private 
 arrangement would be invalid and would not in any way affect the 
 right of devisees.286 The power and duty of an administrator to 
 lease lands will authorize him to make such repairs as are necessary 
 to make the lands tenantable. Otherwise it would be impossible for 
 the power to be justly and prudently exercised. But even if without 
 authority to stipulate with the tenant for the making of repairs, the 
 administrator could not avoid the stipulation. It would be binding 
 upon him personally and would inhere to the contract of renting, and 
 whoever claimed its enforcement would take it cum onere.-^'' As a gen- 
 eral rule, a trustee cannot avoid his contracts, or nullify his acts, be- 
 cause they may be in excess or in abuse of his authority. 
 
 288 
 
 § 94. Mortgagor and mortgagee.— A lease already existing at the 
 date of the mortgage is in no way invalidated by the giving of the 
 mortgage. It is then a paramount interest, and the mortgage is sub- 
 stood meaning of the term 'from "^o Martin v. Williams, 18 Ala. 190; 
 year to year.' . ." Chighizola v. Le Baron, 21 Ala. 406. 
 
 ^^ Stewart v. Smiley, 46 Ark. 373 ; "" Vandegrift v. Abbott, 75 Ala. 
 Chowning v. Stanfield, 49 Ark. 87, 487. 
 91 4 S. W. 276. ^' Stoudemeier v. Williamson, 29 
 
 '^'2 Comp. Laws 1888, § 4030. Ala. 558; Farrow v. Bragg, 30 Ala. 
 
 ^5 Utah L. & T. Co. v. Garbutt, 6 261; Riddle v. Hill, 51 Ala. 224. 
 Utah 342, 23 Pac. 758.
 
 § 95] THE INSTEUMEXT OF DEMISE. 118 
 
 ject to it. The mortgagee has only the rights of the mortgagor as 
 against the lessee. The mortgagor may lawfully receive the rents 
 until the mortgagee interferes. A mortgage of premises already 
 leased operates as an assignment of the reversion. The rights and 
 liabilities of the parties under a lease made after the mortgage are 
 very different from those which exist when the mortgage is made 
 after the lease. There is then no privity of contract between the 
 mortgagee and the lessee of mortgaged land. The mortgagee may 
 treat a lessee holding under a lease from the mortgagor as a tres- 
 passer, and eject him; but unless the tenant has attorned to him, he 
 cannot distrain or bring an action for rent, as there is no relation of 
 landlord and tenant between them. A mortgagor cannot make a 
 lease of the mortgaged premises which will be binding upon the 
 mortgagee.^®^ If the mortgagee obtains possession of the property 
 after the maturity of the mortgage and pending the right of the mort- 
 gagor to redeem and leases it, such lease will be determined by the 
 exercise of the mortgagor's right to redeem.^**** The purchaser at a 
 foreclosure sale under a mortgage senior to an outstanding lease 
 does not thereby become the landlord of the lessee and cannot recover 
 rent from him without an attornment. ^^^ Mere notice of the sale 
 does not make the tenant liable to such purchaser.^^^ 
 
 § 95. Infancy of lessor. — The general rule of law undoubtedly 
 is that a grant of a leasehold estate by an infant lessor is voidable 
 by him but is not absolutely void. However, it seems that an infant 
 must act in person to grant a lease which is prima facie valid, and if 
 an agent appointed by the infant attempts to do so, the instrument 
 is absolutely void. Baron Parke said on this point : "An agreement 
 by an agent cannot bind an infant. If an infant appoints a person 
 to make a lease, it does not bind the infant, neither does his ratifica- 
 tion bind him. There is no doubt about the law; the lease of an 
 infant to be good must be his own personal act." ^ 93 go it was ruled 
 in an early case that a total failure of consideration rendered a lease 
 absolutely void.^*^* But any valuable consideration seems sufficient 
 
 ^'^ Jones on Mortgages, ch. XVIII. 216, Gawdy "conceived that this 
 ='*<'Willard v. Harvey, 5 N. H. 252. lease for years made by the infants. 
 '''Reed v. Bartlett, 9 111. App. 267; without deed and without rent re- 
 Rogers v. Humphreys, 4 A. & B. 299. served is not void, so as every 
 '°' Evans v. Elliot, 9 A. & E. 342. stranger shall take advantage of it, 
 =*' Doe V. Roberts, 16 M. & W. 778, but only voidable; for an infant 
 781. may make a bond, and a contract 
 =** In Humphreston's Case, 2 Leon, for his commodity and profit and
 
 119 PARTIES TO LEASES. [§ 96 
 
 and an ordinary lease made by an infant is not void but voidable 
 only, notwithstanding that the rent reserved is not the best obtain- 
 able. A lease made by an infant, so reserving a rent, is not avoided 
 by a lease of the same lands, made to a third person by the infant 
 on his attaining his full age. To avoid a lease made by an infant, 
 under which the lessee is in possession, upon the lessor attaining 
 twenty-one years of age, some act of notoriety, such as ejectment, 
 entry, or demand of possession, is requisite.^® ^ And, according to 
 modern authority, it would seem that an infant cannot during in- 
 fancy avoid a lease made, reserving a rent for his or her benefit. 
 There are express decisions to that effect,^"" and the law is so stated 
 by text writers.2^^ ^ passage in Coke on Littleton^^s is usually cited 
 to the contrary effect, but that was under the notice of the court in 
 one of the decisions referred to. In another case the very learned 
 Judge Buller says: "Notwithstanding the decisions in Co, Lit., 
 which is also laid down in Brownlow, I will freely own that I am of 
 opinion against the lessor of the plaintiff on the other ground; for 
 all the modern cases have expressly held that an infant cannot avoid 
 a lease which is for his own benefit."^''^ It has been laid down as a 
 general principle, that if an agreement be for the benefit of the in- 
 fant at the time, it shall bind him.^*'° 
 
 § 96. Although a room may properly he regarded as a necessary, 
 it does not follow that a lease to an infant can be supported on the 
 ground that the premises demised were a necessary for him. An 
 
 the same shall bind him; as for his comes of age, for that if the grantee 
 
 meat and drink, apparel, etc., but should then distrain for the rent, 
 
 if upon such lease he had reserved though the other may bring an ac- 
 
 a small rent, as one penny where tion of trespass, yet he cannot plead 
 
 the land was worth £100 per annum, non concessit; for the deed is only 
 
 such a lease had been void; and in voidable by the showing of his in- 
 
 this case this lease was made upon fancy, and not void because it was 
 
 the land and was made for to try delivered with his own hand. Note 
 
 the title to it, which is a good con- in 3 Mod. 310. 
 
 sideration and to the profit of the ^''^ Slator v. Brady, 14 Ir. C. L. 61; 
 
 infant and for his advancement Hartshorn v. Earley, 19 W. C. C. P. 
 
 and the lease is not void." 139; Lipsett v. Perdue. 18 Ont. 575. 
 
 =»^ Slator V. Brady, 14 Ir. C. L. 61. "" Woodfall's Landlord & Tenant 
 
 In the case of Hudson v. Jones, 40. 41. 
 
 Trinity Term, 6 Ann. B. R., it is =*» Co. Lit. 380b. 
 
 said to have been held that if an ^^'Maddon v. White. 2 Term R. 
 
 infant grant a rent charge out of 159. 
 
 his land it is not absolutely void, ''""Zouch v. Parsons, 3 Burr. 1794; 
 
 but only voidable by him when he Drury v. Drury, 5 Bro. P. C. 570.
 
 § 97] THE IXSTRU:\IEXT OF DEillSE. 120 
 
 infant cannot make a binding executory agreement even to purchase 
 necessaries. So long as the infant actually occupied the room as 
 his sole lodging room, it was clearly a necessary for him, for the use 
 of which the law would compel him to pay, but the question is only 
 as to liability for rent after occupation ceased. The transaction 
 may be regarded as an agreement on the part of the landlord to sup- 
 ply the infant with necessary lodgings for the year, and on the 
 part of the infant as an executory agreement to pay an agreed price 
 for them from week to week; or it may be regarded as what on the 
 whole the parties intended it to be, a parol lease under which posses- 
 sion was taken, and an executory agreement on the part of the infant 
 to pay rent. If regarded in the former light the defense of infancy 
 is a good defense; for in that case the suit is upon an executory con- 
 tract to pay for necessaries which the infant refused to take and which 
 therefore he may avoid. If the transaction is regarded as a lease 
 under which possession was taken, executed on the part of the land- 
 lord, with a promise or agreement on the part of the infant to pay 
 rent weekly, infancy is equally a defense. As a general rule, with 
 but few exceptions, an infant may avoid his contracts of every kind, 
 whether detrimental to him or not and whether executed or executory. 
 The agreement here does not come within any of the exceptions to 
 the general rule.^°^ Where an infant agrees to pay a stipulated price 
 for necessaries, the party furnishing them recovers not necessarily 
 that price but only the fair and reasonable value of the necessaries.^''^ 
 
 § 97. Assignment by infant. — Transfers of the reversion do not 
 affect the term which precedes it, so that the assignment of the re- 
 versionary interest to an infant does not render voidable an outstand- 
 ing lease. In case an infant acquires the reversion upon a periodi- 
 cal lease, he must give the required notice to quit the same as other 
 lessors.^"^ Where an infant lessee assigns the term, the lessee is 
 liable to pay rent to the lessor during his occupancy, until the minor 
 disaffirms the assignment. The foundation for this is that the as- 
 signee has enjoyed the premises, and his occupation has been legal, 
 and the assignment being voidable and not void, does not relate 
 back to invalidate everything before it.^°* 
 
 5°' Gregory v. Lee, 64 Conn. 407, 527, 6 N. E. 761; Keener's Quasi 
 30 Atl. 53. Contracts, p. 20. 
 
 ^°= Earle V. Reed, 10 Mete. (Mass.) "»^ Maddon v. White, 2 Term R. 
 387; Barnes v. Barnes, 50 Conn. 159. 
 
 572; Trainer v. Trumbull, 141 Mass. ^"^ Rothschild v. Hudson, 6 Wkly. 
 
 L. Bui. 752, 8 Ohio Dec. R. 259.
 
 131 DESCRIPTION OF PREMISES. [§ 98 
 
 4. Description of Premises. 
 
 § 98. Where a lessee has not entered into occupation, the lease 
 must with reasonable certainty describe the land demised, either by 
 particular words or by reference to somethiag by which its location 
 can be determined. Unless it does, a lessee who has not entered 
 cannot be held for rent.^**^ The authorities establish the proposi- 
 tion that a lease or contract for the conveyance of land must, to be 
 enforced, contain a description of the land. But where the descrip- 
 tion, as far as it goes, is consistent, without being sufficiently com- 
 plete, it may be completed by extrinsic parol evidence, provided a 
 new description is not introduced into the body of the contract. 
 Parol evidence cannot be given first to describe the land and then to 
 apply the description; such evidence must not contradict the written 
 instrument, but aid it.^*'® Where a lease described the premises as 
 a farm belonging to the lessor, known as "Rose Hill," but did not 
 show the state, county or civil district in which the farm was situated, 
 it was nevertheless valid, as it was shown on the face of the lease 
 that both parties resided in the same county. It could be shown by 
 extrinsic evidence that a farm lying in that county had been owned 
 by the lessor named and that it was known generally as "Rose 
 Hill."^"^ The parol proof thus resorted to is not to introduce any 
 additional evidence as to the term.s of the contract but simply to as- 
 certain if there be lands or property known by the name or descrip- 
 tion given in the writing and where that property is.^^^ In applying 
 a lease to the land, oral evidence is competent to show where, at the 
 time of the execution of the lease, the streets mentioned in it were 
 and what buildings there were at the corner of such streets. The 
 lease must be construed with reference to the existing geography of 
 the premises. But parol evidence of the practical construction given 
 to a lease by the subsequent acts of the parties thereto is not admis- 
 sible unless the language in the description of the property leased 
 is doubtful.^"^ The general rule as to the construction of grants is 
 
 ^= Bingham v. Honeyman, 32 Ore. Crawford v. Morris, 5 Grat. (Va.) 
 
 129, 51 Pac. 735, 52 Pac. 755; Noyes 90. 
 
 V. Stauff, 5 Ore. 455; Patterson v. ^""Dougherty v. Chestnutt, 86 
 
 Hubbard, 30 111. 201. Tenn. 1, 5 S. W. 444. 
 
 ^-^ Baldwin V. Kerlin, 46 Ind. 426; ^"^ Guy v. Barnes, 29 Ind. 103; 
 
 Miller v. Campbell, 52 Ind. 125; Johnson v. Kellogg, 7 Heisk. 
 
 Pulse V. Miller, 81 Ind. 190; Weaver (Tenn.) 262; House v. Jackson, 24 
 
 V. Shipley, 127 Ind. 526, 27 N. E. Ore. 89. 32 Pac. 1027. 
 
 146; Guy v. Barnes, 29 Ind. 103; ^ Durr v. Chase, 161 Mass. 40, 36 
 
 N. E. 741.
 
 § 99] THE INSTRUMENT OF DEMISE. 122 
 
 that if there are certain particulars once sufficiently ascertained 
 which designate the thing intended to be granted, the addition of a 
 circumstance, false or mistaken, will not frustrate the grant ;^^*' and 
 this general rule has been held to apply to grants by way of lease.^^^ 
 Thus where premises were correctly described by number on a sur- 
 veyor's plan and the lessee occupied and paid rent, a further erroneous 
 description by metes and bounds could be rejected as surplusage.^^- 
 A technical misdescription of the leased premises is immaterial in 
 an action for rent, where the property is otherwise so defined as to 
 fully advise the parties of the subject-matter of the lease,^^^ or 
 where the tenant has been in occupation of the premises during the 
 time for which rent is claimed.^ ^* 
 
 A misstatement of the quantity of land included in a given de- 
 scription will not control but will give way to the other parts of the de- 
 scription.^ ^^ 
 
 § 99. The practical location of the boundaries of the leased prem- 
 ises, coupled with the subsequent possession of the same by the ten- 
 ants by and with the landlord's knowledge and consent, is a sufficient 
 location of the property. ^^'^ The lessee cannot escape liability for 
 the rent provided for in a lease, where he enters into possession, on 
 the ground that the description of the premises was uncertain.^^'^ 
 This is in accord with the general rule that parol evidence of the prac- 
 tical construction given by the parties, by acts of occupancy, recogni- 
 tion of monuments or boundaries, is admissible for the purpose of 
 identifying the land and in aid of the interpretation of the deed.^^^ 
 As between the parties to a lease extrinsic evidence is admissible to 
 
 ^° Jackson v. Brownson, 7 Johns. ^' Jackson v. Barringer, 15 Johns. 
 
 (N. Y.) 227; Jackson v. Wilkinson, (N. Y.) 471. 
 
 17 Johns. (N. Y.) 146; Doe v. "« Weaver v. Shipley, 127 Ind. 526, 
 
 Thompson, 5 Cow. (N. Y.) 371. 27 N. E. 146; Jackson v. Perrine, 35 
 
 =" Lush V. Druse, 4 Wend. (N. Y.) N. J. Law 137; Lush v. Druse, 4 
 
 313; Hibbard v. Hurlburt, 10 Vt. Wend. (N. Y.) 313; Pierce v. Min- 
 
 173; Hamilton v. Ames, 74 Mich, turn, 1 Cal. 470; Richards v. Snider, 
 
 298, 41 N. W, 930; Andrew v. Car- 11 Ore. 197, 3 Pac. 177. 
 
 lile, 4 Colo. App. 336, 36 Pac. 66. '" Whipple v. Shewalter, 91 Ind. 
 
 ''' Lush v. Druse, 4 Wend. (N. Y.) 114; Hoyle v. Bush, 14 Mo. App. 
 
 313; Hay v. Cumberland, 25 Barb. 408. 
 
 (N. Y.) 594; Tumbridge v. Read, ^" Stone v. Clark, 1 Mete. (Mass.) 
 
 109 N. Y. 641, 16 N. E. 534. 378; Waterman v. Johnson, 13 Pick. 
 
 =" Andrew v. Carlile, 4 Colo. App. (Mass.) 261; Ballance v. City of 
 
 336, 36 Pac. 66. Peoria, 180 111. 29, 54 N. E. 428, re- 
 
 '"Hoyle V. Bush, 14 Mo. App. 408; versing 70 111. App. 546. 
 Whipple v. Shewalter, 91 Ind. 114.
 
 123 DESCRIPTION OF PREMISES. [§ 100 
 
 show that land described in the lease as about four acres was set off by 
 the parties by metes and bounds. Had there been any reference, 
 however vague, in the lease to the demarcation resorted to by the 
 parties, there could be no doubt that the proof of such demarcation 
 might be shown by parol. From the terms of this lease it did appear 
 that they had in mind a particular tract of four acres and "we see 
 no reason," say the court, "why extrinsic evidence to identify this 
 tract was inadmissible. It must be remembered, however, that we 
 are discussing this question only as it affects the immediate parties 
 to the instrument."^ ^® A gas lease of eighty acres of a certain tract, 
 reserving sixty acres around the buildings to be specified by the lessor, 
 is a valid description when the lessor is ready and willing at all 
 times to designate the sixty acres and he need not do so till the lessee 
 is ready to begin operations.^^** 
 
 After the lessee had occupied the premises and paid rent for them, 
 he cannot raise the objection of insufficiency of description because 
 such defects were cured by possession.^ ^^ Where the lessee has oc- 
 cupied during the term of the lease, it is not necessary to consider 
 whether the uncertainty of the words of description is helped by the 
 fact of occupation at the time, so far as to make the instrument a 
 good demise. If the lessee kept possession under it, whether it is 
 good or bad, the covenant is the measure of his liability to pay. He 
 cannot take the benefit and repudiate the liability for rent, upon the 
 ground that the benefit was not conveyed to him in effectual terms. 
 Even if the covenant did not bind as such, the law would imply a 
 promise to pay at the rate expressed in the covenant.^" Nor can 
 the lessor object to a description in the lease after the lessee has gone 
 into possession of land designated by the lessor. 
 
 323 
 
 § 100. A defective or totally inadequate description cannot be 
 cured by parol evidence where the instrument to be valid must be 
 in writing. It is permissible for an instrument to refer to another 
 description to identify the premises; but a reference to a conversa- 
 tion for this purpose would not be sufficient because of the require- 
 
 2« Schneider v. Patterson, 38 Neb. N. E. 16; Appleton v. O'Donnell, 173 
 
 680, 57 N. W. 398. Mass. 398. 53 N. E. 882; McLennan 
 
 =*=» Indianapolis Nat. Gas. Co. v. v. Grant, 8 Wash. 603, 36 Pac. 682. 
 
 Spaugh 17 Ind. App. 683, 46 N. E. '--Appleton v. O'Donnell, 173 
 
 691 ' Mass. 398, 53 N. E. 882. 
 
 =« Pierce v. Minturn, 1 Cal. 470; '"-'Weaver v. Shipley, 127 Ind. 526. 
 
 Bulkley v. Devine, 127 111. 406, 20 27 N. E. 146.
 
 § 101] THE INSTRUMENT OF DEMISE. 124 
 
 ment of the statute of frauds that the lease be in writing. ^^* If the 
 paper purporting to be a lease does not describe the property leased, 
 the ambiguity is patent, and parol evidence is not admissible to ex- 
 plain it.^-^ If there is no ambiguity or exception in a description, 
 the general rule is that the language used must control in determin- 
 ing what lands are included in a lease.^^^ 
 
 § 101. "The question whether a particular place is a part of the 
 demised premises does not depend exclusively on the question of 
 boundary but also upon the question of intention, which may be 
 determined by bringing in aid of the words of the demise such extrin- 
 sic facts explanatory of the subject and all the rights of the parties 
 as may show the meaning of the instrument and the intention of 
 the parties."^ ^^ In a conveyance, in general terms, of a house, every- 
 thing that belongs to it passes with it, and whether a thing is parcel 
 of the thing demised is always a matter of evidence. Thus parol 
 evidence was admitted to show that the parties could not have in- 
 tended to embrace in the lease a cellar situated under the yard which 
 was demised.^^* A description of an entire building such as a hotel 
 building by the name by which the hotel business is known is open 
 to testimony upon the point as to what the name ordinarily meant 
 and included in common parlance. Whether the entire building or 
 only the part used for hotel purposes was intended by the parties in 
 the contract could be legitimately determined by parol testimony.^ ^® 
 It was argued that "house" means the whole of a house, and not part 
 of a house ; that it includes all upon the same foundation and covered 
 by the same roof. This was admitted to be an argument of consider- 
 able weight if the term were used in its generic sense, as "my house, 
 situated in" such a town or such a street. But it was plainly used here 
 as a proper name or specific designation. A hotel may be complete 
 in all its parts without including separate tenements under it and is 
 often designated by the term "house," so in a demise for a term of years 
 with the furniture of the hotel, it leaves the matter questionable.^^'' 
 
 ==* Jarboe v. Mulry, 49 N. Y. Super. § 286; Hibbard v. Hurlburt, 10 Vt. 
 
 Ct. 525; Wright v. Weeks, 25 N. Y. 173. 
 
 153. ''«Cary v. Thompson, 1 Daly (N. 
 
 ^==Noyes v. Stauff, 5 Ore. 455. Y.) 35; Doe v. Burt, 1 Term. R. 701, 
 
 ==«Ballance v. City of Peoria, 180 704. 
 111. 29, 54 N. E. 428, reversing 70 '^Harris v. Dub, 57 Ga. 77; Sar- 
 in. App. 546; Fowler v. Black, 136 gent v. Adams, 3 Gray (Mass.) 72, 
 111. 363, 26 N. E. 596. 63 Am. Dec. 718. 
 
 ^^^ Trimble v. Ward, 14 B. Mon. =''" Sargent v. Adams, 3 Gray 
 
 (Ky.) 8, citing Doe v. Burt, 1 Term (Mass.) 72, 63 Am. Dec. 718. 
 R. 701; 1 Greenleaf's Evidence, 
 
 1
 
 125 DESCRIPTION' OF PKEMIdES. [§ 103 
 
 The word "furniture" employed in a lease of "a hotel with the 
 furniture therein/' includes that which furnishes or with which an}'- 
 thing is furnished or supplied, — whatever must be supplied in a house, 
 a room, or the like, to make it habitable, convenient or agreeable; 
 goods, vessels, utensils and other appendages necessary or convenient 
 for housekeeping; whatever is added to the interior of a house or 
 apartment for use or convenience.^^^ But the term "appurtenances" 
 was held not to include an iron kettle for heating water situated on 
 the lessor's adjacent lot, not included in the lease and not indispen- 
 sable to the enjoyment of the hotel, though used by the lessor in con- 
 nection therewith.^^- 
 
 § 102. A lease of a building eo nomine is a lease of the land on 
 which the building stands. Land may be granted or leased by the 
 description of a building on it. "And by the grant of a house," 
 we find it said in Shepard's Touchstone, "the ground whereon it 
 doth stand doth pass."^=*^ Kearly two centuries ago it was adjudged 
 by the court of King's Bench that a garden may be said to be parcel 
 of a house, and by that name will pass in a conveyance.^^* So the 
 general rule is well settled today that the grant of a house, store, 
 mill or other building carries with it the land under the building.^^^ 
 A case may be taken out of this general rule if the lease or other 
 grant shows that it was the intention of the parties that the building 
 only or a room in it should pass, and not the land. But there is 
 nothing to indicate that such was the intention of the parties where 
 the lease is of the whole building. The plain intent of a clause re- 
 quiring the lessee to pay all taxes assessed upon the premises is that 
 they are to pay taxes upon the whole estate including the land. A 
 provision that if the premises are destroyed by fire, the rent shall 
 be suspended until the premises are put in proper condition for use, 
 by the lessor, implies that the lease is to continue though the build- 
 
 ^^Bell v. Golding, 27 Ind. 173. 5 Ohio 477; Lanpher v. Glenn, 37 
 
 ='= Barrett v. Bell, 82 Mo. 110, 52 Minn. 4, 33 N. W. 10; Winchester v. 
 
 Am. R, 361. Hees, 35 N. H. 43; Wilson v. Hun- 
 
 ^^^ Shep. Touch. 90. ter, 14 Wis. 683, 80 Am. Dec. 795; 
 
 ''* Smith v. Martin, 2 Saund. 400. Blake v. Clark, 6 Me. 436; Forbush 
 
 ^="Humiston &c. Co. v. Wheeler, v. Lombard, 13 Mete. (Mass.) 109; 
 
 175 111. 514, 51 N. E. 893, affirming Oliver v. Dickinson, 100 Mass. 114; 
 
 70 111. App. 349; Leiferman v. Osten, Sherman v. Williams, 113 Mass. 
 
 167 111. 93, 47 N. E. 203, affirming 481; Rogers v. Snow, 118 Mass. 118; 
 
 64 111. App. 578; Chesebrough v. Bacon v. Bowdoin, 22 Pick. (Mass.) 
 
 Pingree, 72 Mich. 438, 40 N. W. 747, 401. 
 
 1 L. R. A. 529; Winton v. Cornish,
 
 § 102] THE IXSTRUMEXT OF DEillSE. 12G 
 
 ing should be destroyed.^^® However, a lease of certain apartments 
 in a building is not to be considered as a lease of land but only as 
 a lease of apartments in the building distinct from the land.^^^ This 
 is the rule where the building is destroyed by fire, the cases holding 
 that where the building containing the apartments leased is destroyed 
 by fire, the lease is terminated.^^^ Not only the land under the 
 building but the land under its overhanging projections passes. Thus 
 land under the eaves of a house was included in a lease and passed 
 as parcel under the description of the 'Tjrick building," as the eaves 
 are a part of the building, the land under them is included in the 
 description when owned by the grantor. Where land is conveyed, 
 bounded on a house as a monument, the land to the edge of the eaves 
 only passes, that being the extreme part of the building; so where 
 the house itself is granted or demised, the extreme parts of the house 
 are the bounds and limits of the conveyance, and such title as the 
 grantor has to the land thus occupied by the whole house passes by 
 the grant or demise.^^^ 
 
 "In cases where different rooms in the same building are leased 
 to separate tenants," said the Massachusetts court, "the situation of 
 the property and the nature of the tenures exclude, the idea that each 
 tenant takes an estate for years in the land. Such estates existing 
 at the same time in different tenants are inconsistent and impos- 
 sible. . . . The bank and Lawrence cannot both take an estate 
 for years of the same land,"^*° The owner can grant the right to 
 take all the minerals underneath, or those twenty feet beneath the 
 surface only; to dig all the turf; to inhabit a cave, if there be one; 
 to occupy a room in the third story; to occupy the second story, a 
 room in the first story or the cellar or a part of the cellar. By such 
 grants the land does not pass. The lessees of a middle story of aJ 
 house are limited above and below as well as on the sides, yet the 
 land is as necessary to sustain their part of the house as that be- 
 low.^*^ So a lease of a basement and first story of a building without 
 anything more does not transfer the land upon which the building 
 
 ^''Rogers v. Snow, 118 Mass. 118. Ala. 356, 94 Am. Dec. 654; Harring- 
 
 "' Kerr v. Merchants' Exch. Co., ton v. Watson, 11 Ore. 143, 3 Pac. 
 
 3 Edw. Ch. (N. Y.) 316; Leiferman 173; Leiferman v. Osten, 167 111. 93, 
 
 V. Osten, 167 111. 93, 47 N. E. 203, 47 N. E. 203, affirming 64 111. App. 
 
 affirming 64 111. App. 578; Lanpher 578. 
 
 V. Glenn, 37 Minn. 4, 33 N. W. 10. ^* Sherman v. Williams, 113 Mass. 
 
 "^Stockwell V. Hunter, 11 Mete. 481. 
 
 (Mass.) 448; Womack v. McQuarry, =*" Shawmut &c. Bank v. City of 
 
 28 Ind. 103; Graves v. Berdan, 26 Boston, 118 Mass. 125, per Dewey, J. 
 
 N. Y. 498; McMillan v. Solomon, 42 ^Winton v. Cornish, 5 Ohio 477.
 
 127 DESCRIPTION OF PREMISES. [§ 103 
 
 stands to the lessee so that a mechanic could claim a lien for ma- 
 terials under the mechanic's lien law.^*^ 
 
 A lease of a building, described as being certain numbers on a 
 certain street, was, however, held to carry the land as well as the 
 building, although certain portions of the building were reserved to 
 the use of the lessor. It was contended that on account of the ex- 
 ceptions from the general description, the lease was to be regarded 
 as a lease merely of portions of the building. On the contrary, the 
 lease was not of certain portions of the building without the land, 
 but of the land and building except certain minor portions of the 
 building. The legal rights of the parties would be the same as if 
 the lessor had leased the excepted portions to a third person instead 
 of retaining them. In that case the lease would surely convey 
 an estate in the land which the tenant of particular rooms had not 
 acquired.^** 
 
 § 103. A description of a house by the street number in a demise 
 carries with it the premises of which the building which is strictly 
 the house is the main or principal feature.^'** Only so much of the lot 
 upon which the building described by number is situated passes as 
 is necessary for the complete enjoyment of the building for the pur- 
 pose for which it was let. If a lease does not in terms convey any 
 right to passageways, to lots in the rear of the buildings, all that 
 can be claimed is that, by construction, the lease conveys so much of 
 adjoining premises as is necessary for the enjoyment of the building 
 for the purpose for which it is rented. Whether passageways or 
 other parts of the lot are so necessary as to pass is a question of fact 
 for the jury.^*^ When a house or building is described in a lease 
 by the numbers over the outside doors on the street, the inference is 
 that a building is intended access to which is had by these doors 
 from the street. A part of the building inaccessible by this entrance 
 was held not to be included in the lease. When the building thus 
 described has a solid brick partition wall "extending from the cellar 
 to the roof, without door passageway or other opening therein," 
 
 ^Seidel v. Bloeser, 77 Mo. App. E. 893, affirming 70 111. App. 349; 
 
 172. Houghton v. Moore, 141 Mass. 437, 
 
 ^' Humiston &c. Co. v. Wheeler, 6 N. E. 517. 
 
 175 111. 514, 51 N. E. 893, affirming =" Patterson v. Graham, 40 111. 
 
 70 111. App. 349. App. 399, affirmed 140 111. 531, 30 
 
 ^"Armstrong V. Crilly, 51 111. App. N. E. 460; Hosher v. Hestermann, 
 
 504, affirmed in 111.; Humiston &c. 58 111. App. 265. 
 Co. V. Wheeler, 175 111. 514, 51 N.
 
 § 104] THE INSTRUMEXT OF DEMISE. 138 
 
 the inference is unavoidable that it was so constructed that the 
 different parts of the building might be separately occupied. Such 
 a partition wall makes the structure two tenements for the purpose 
 of occupation as distinctly as if they had not been built as parts of 
 one block. If the partition wall had remained intact, the lease 
 could not be construed to include a building on a different street 
 inaccessible from the street mentioned in the lease. The separate 
 character of the two parts above the first story was not changed 
 although the partition was so far taken down in the first story as 
 to make the whole floor on that story one room. As regards the upper 
 stories, it was still true that occupants of one part could not enter 
 the other except by going out of the building upon the street and 
 entering through outside doors, in the same manner as the public 
 entered.^*® 
 
 § 104. Any right of way or other easement necessary to the en- 
 joyment of the demised premises passes as appurtenant thereto, al- 
 though not expressly mentioned in the lease, and although there is 
 no express mention of easements, privileges, or appurtenances.^*^ 
 Thus a lease of a canal constructed by a hunting and boating club 
 was held to pass a footpath on the side of the canal which was used 
 by the members of the club.^*^ A lease of "the storeroom in its 
 present condition" was held to pass a backyard, back ways and out- 
 houses used in connection with it.^'*'' And it was held that a demise 
 of a "store" included the land under it and to the middle of a pri- 
 vate way in the rear, the fee of which was in the lessor.^ ^"^ But in 
 another case where a lease of a building did not in terms convey a 
 right to a passageway in the rear, all that could be claimed was that 
 the lease conveyed so much of the lot as was necessary for the en- 
 joyment of the building for the purpose for which it was rented.^^^ 
 
 The appurtenances of ingress and egress, essential to use and 
 reasonably within the contemplation of the parties at the time of 
 the leasing, are as much a part of the room conveyed as the room 
 itself. In other words when a person leases a room in a building 
 with doors and passageways so connected with other rooms as to be 
 
 ^"Houghton v. Moore, 141 Mass. ^*Witte v. Quinn, 38 Mo. App. 
 
 437, 6 N. E. 517. 681. 
 
 ^" Oliver v. Dickinson, 100 Mass. ''" Hooper v. Farnsworth, 128 
 
 114; Pettingill v. Porter, 8 Allen Mass. 487. 
 
 (Mass.) 1; Kent v. Waite, 10 Pick. ^'^ Patterson v. Graham, 140 III. 
 
 (Mass.) 138. 531, 30 N. E. 460. 
 
 ^Alexander v. Tolleston Club, 
 110 111. 65.
 
 129 DESCRIPTION OF PRE:y:iSES. [§ 105 
 
 essential to the use and enjoyment of the one leased, the law implies 
 a covenant that such use shall not be interfered with during the con- 
 tinuance of such term.^^^ When a person hires a room in a building, 
 a right to use the apparent means of access and exit often passes as 
 appurtenant to the premises hired. In modern buildings of great 
 height this doctrine may be applied to elevators. "WHiether an active 
 duty to maintain an elevator can be implied may be open to question, 
 but the duty to permit tenants to use it may be implied if this is 
 reasonably necessary for the beneficial occupation of the rooms let, and 
 if, from the construction of the elevator and of the passageways it 
 is apparent that the elevator was intended for the use of the ten- 
 ants. ^^* 
 
 In construing what passes as appurtenances in a lease, the situa- 
 tion of the parties at the time of making the lease must be considered, 
 and where the lease contained an agreement to give plaintiff one half 
 the steam power and to keep up such power ten hours per day, it was 
 held that the right to maintain an exhaust pipe to plaintiff's part of the 
 premises passed as an appurtenance.^^'* A blast used in a blacksmith's 
 shop was held to pass as an appurtenance to "power" which was to 
 be furnished by the lessor by the terms of the lease.^^^ 
 
 A lease of a loft contained the memorandum, "tenant to have privi- 
 lege of storing a reasonable number of cases in the basement," and 
 it was held that this was a grant of the privilege in premises not in- 
 cluded in the lease. This right could be waived and in that case 
 failure to get the use of the basement could not be set up as a de- 
 fense in an action of rent.^^*^ 
 
 § 105. The lease of property abutting on a public street carries 
 with it all the easements, incidents, and rights of the owner in 
 
 such street belonging to such property, unless especially reserved to 
 the lessor in the lease. The tenant acquires all rights to the use 
 of the street in front of the leased premises, including the right 
 to air and light, access, ingress and egress, incident to the property, 
 not only as against the public but as against the landlord. He be- 
 comes entitled, by virtue of his lease, to a free and unobstructed 
 street, incumbered only with the easement of the public and the 
 privileges of the municipality, and this right constitutes a part of 
 the leased premises. The tenant's rights in this respect are as full 
 
 ^'^ Shaft v. Carey, 107 Wis. 273, «" Thomas v. Wiggers, 41 111. 470. 
 
 277, 83 N. W. 288. '" Thropp v. Field, 26 N. J. Eq. 82. 
 
 *^Cummings v. Perry, 169 Mass. ==" Cluett v. Sheppard, 131 111. 636, 
 
 150, 47 N. E. 618 23 N. E. 589. 
 
 Jones L. & T.— 9
 
 § lOG] THE IXSTKUMEXT CT DOUSE. 130 
 
 and complete as his right to the part of the building he occupies, 
 and his right to the one can no more be interfered with than his 
 right to the other.^°^ Thus in a case where premises fronting on a 
 river were leased to a boating club for a boat house and by the terms 
 of the lease the lot extended to the channel bank of the river and in- 
 cluded "all and singular the benefits, liberties and privileges to the 
 said premises belonging," the water way was a material portion of 
 the leased premises; so that an interference by the landlord with 
 the use of such water way constituted an eviction which suspended 
 rent. The right to enter upon the land leased was of interest or 
 benefit to the tenant only as it furnished a water front upon which 
 the club could store its boats, and launch and land the same unob- 
 structed. The disturbance of the lessee's beneficial enjoyment of 
 the water front amounted to an actual eviction.^"^ 
 
 § 106. A tenant could prevent an interruption of his right to an 
 easement for light and air by the threatened erection of a building 
 in the yard where his easement extended, by a decree enjoining such 
 a use of the yard. If the yard had not been part of the lot upon which 
 the building had been standing and if it had not been appropriated 
 for use with the building so as to pass as appurtenant thereto, and 
 to give easements therein to the tenants, they could not have com- 
 plained of the new building. Under the authorities, if the lessor had 
 sold the store and land upon which it stood, the grantee would have 
 taken no right to light and air from the balance of the lot. In that 
 case the grantor could have built upon the balance of the lot, and 
 thus have darkened the windows in the granted building without 
 violating any rights of the grantee.^^^ Yet in case of a lease failure 
 to give tenants access to a yard does not indicate that they were to 
 be deprived of the light and air from the yard. Windows facing 
 such a yard are in many instances the only means to procure light 
 for the proper transaction of business in the demised premises. The 
 light passing into the windows from the yard is then essential to the 
 
 ^'Edmison v. Lowry, 3 S. Dak. ^^^ Parker v. Foote, 19 Wend. (N. 
 77, 52 N. W. 583, 17 L. R. A. 275, 44 Y.) 309, 315; Palmer v. Wetmore, 2 
 Am. St. 774. See also, Newman v. Sandf. (N. Y.) 316; Myers v. Gem- 
 Metropolitan El. R. Co., 10 N. Y. St. mel, 10 Barb. (N. Y.) 537; Mullen 
 12. v. Strieker, 19 Ohio St. 135; Haver- 
 
 ^«Pridgeon v. Excelsior Boat stick v. Sipe, 33 Pa. St. 368; Keats 
 
 Club, 66 Mich. 326, 33 N. W. 502. v. Hugo, 115 Mass. 204. 
 See also, Cochran v. Ocean Dry- 
 Dock Co., 30 La. Ann. 1365.
 
 131 DESCEIPTIOX OF TREMISES. [§ 107 
 
 beneficial use of tlie store, and it would clearly be the intention at 
 the time the lease is made that the tenants should have it. To this 
 extent the tenants will be entitled to enjoy an easement in the yard. 
 They will be so far interested in it that the landlord cannot change 
 its condition to their detriment. ^'^^ 
 
 § 107. What constitutes the curtilage. — By the "curtilage" 
 which passes with the demise of a house is meant the court yard in 
 the front or rear, or at its side, or any piece of ground lying near, 
 inclosed and used with the house, and necessary for its convenient 
 occupation. ^"^ A strip of land belonging to the lessor which had 
 been fenced off as a separate lot was held not to pass as parcel of the 
 premises belonging to a house although it had been formerly treated 
 as such.^*^- Yet the general rule of law is that where a house or 
 store is conveyed, everything then belonging to or in use for the house 
 or store passes by the grant. It is implied from the nature of the 
 grant that the grantee shall possess the house in the manner and 
 with the same beneficial rights as were then in and belonged to it.^®^ 
 The yard would pass, -not by force of the word "appurtenances," but 
 as portion of the premises demised.^'''* An adjoining piece of land 
 lying on a separate lot was held not to pass under the description all 
 the "buildings, outhouses and premises of said place with the ap- 
 purtenances." The land in question had no outhouses or other 
 buildings upon it. The outhouses and erections were on the other 
 side of the lot designated by number. By construction, the words 
 "buildings, outhouses and premises of said place" would embrace the 
 lot on the west side. Such a construction was necessary to give 
 effect to the description of the property as demised in the lease. But 
 there was nothing in the lease to make the description apply to the 
 strip on the east side.^"^ 
 
 No title in a separate out-building, yard and passageway passed 
 as parcel of premises described as a "wooden building" when they 
 were not within a curtilage or inclosure adjoining the wooden 
 
 '«<• Doyle v. Lord, 64 N. Y. 432. (U. S.) 280, 29 Fed. Cas. No. 17595; 
 
 ^*i People v. Gedney, 10 Hun (N. Comyn's Dig. Title, Grant, E. 6; 
 
 Y.) 151. Ship. Touch 94. 
 
 ""McBurney v. Mclntyre, 38 Ga. =""* Riddle v. Littlefield, 53 N. H. 
 
 261. 503, 16 Am. R. 388; Doyle v. Lord, 
 
 •"'United States v. Appleton, 1 64 N. Y. 432. 
 
 Sumn. (U. S.) 492, 24 Fed. Cas. No. ="'^ Morris v. Kettle, 57 N. J. Law 
 
 14463; Whitney v. Olney, 3 Mason 218, 30 Atl. 879, s. c. 34 Atl. 376.
 
 § 108] THE TNSTRUMEXT OF DEMISE. 133 
 
 building and distinct from other premises ; nor as appurtenant to the 
 premises granted because land will not pass as appurtenant to land.^"^^ 
 
 § 108. Use of outside walls for signs. — It may be laid down as a 
 general rule that a tenant of business property is entitled to use for 
 his business signs the outside of the part of the building occupied 
 by him.^*'^ Though only one story of the building be included in the 
 demise, the outside wall of the part leased passes by the lease or deed 
 as much as the inside of the same wall.^*^^ The outside wall of a store 
 or house is essential for the proper enjoyment of the interior of the 
 building. The outer side of the wall is but one side of the same 
 wall that has an inner side, and the removal of the wall removes 
 both sides. Who, then, shall occupy the exterior walls of the de- 
 mised building? The landlord, who for a sufficient consideration 
 has parted with the possession and use of the property? or the 
 tenant, who cannot have the full and complete as well as the rea- 
 sonably beneficial enjoyment of the property for which he pays rent, 
 without the opportunity to display his wares and his advertisements 
 upon the external walls of the building? The lessee who affixes his 
 signs and advertisements upon the walls, 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 
 is therefore to him a source of legitimate profit. If the lessee deems 
 it more advantageous to employ the walls for advertising the goods 
 or the business of others, receiving payment therefor, than to ad- 
 vertise or expose his own goods upon the wall, it is none of the land- 
 lord's business, unless he has restricted or forbidden such use of the 
 premises. ^'^^ The words "first floor" in a building are equivalent to 
 "first story" of the building, and naturally include the walls. The 
 apparent intention is to separate a section of the building as a dis- 
 tinct tenement. The words "first floor" define the lower and upper 
 boundaries of this, but there is nothing to fix the lateral boundaries 
 except the boundaries of the building. In this respect the words differ 
 
 ^"^ Oliver v. Dickinson, 100 Mass. 145 Mass. 1, 12 N. E. 401, 1 Am. St. 
 
 114; Leonard v. White, 7 Mass. 6; 422. 
 
 Ammidoun v. Ball, 8 Allen (Mass.) ^"^ Lowell v. Strahan, 145 Mass. 1, 
 
 293. 12 N. E. 401, 1 Am. St. 422; Riddle 
 
 '•"Law v. Haley, 9 Ohio Dec. R. v. Littlefield, 53 N. H. 503, 16 Am. 
 
 785, 17 Wkly. L. Bui. 242; Baldwin R. 388. 
 
 V. Morgan, 43 Hun (N. Y.) 355; ^-^ Riddle v. Littlefield, 53 N. H. 
 
 Riddle v. Littlefield, 53 N. H. 503, 503, 16 Am. R. 388. 
 16 Am. R. 388; Lowell v. Strahan.
 
 133 DESCRIPTION or PREMISES. [§ 108 
 
 somewhat from the word "room." The word "room" includes a de- 
 scription of the perpendicular as well as the horizontal planes which 
 bound the parcel of the house described by it and excludes the outside 
 of lateral walls, at least when they constitute the walls of another 
 room, as clearly as the words "first floor" exclude the flooring of the 
 story above it. When the building adjoins the side-walk the words 
 "first floor in building" must be held to include the entire front wall 
 of that part of the building, unless there is something to control the 
 natural meaning of the language. ^^^ However, where the general 
 granting words of the lease do not include outside walls, an express 
 provision authorizing the placing of signs would take effect as a license 
 and must be exercised with regard to existing conditions as to other 
 signs already occupying the wall.^^^ In a slightly different case the 
 facts were that certain premises contained an auditorium and certain 
 one-story houses. The owner of land leased the auditorium to B. and 
 the houses also situated thereon to G. The landlord then leased the 
 space above the one-story buildings to B. to be used for advertising 
 purposes. It was held that the landlord had a perfect right to do what 
 he wanted with the space above the roof of the one-story building, 
 and an injunction should be granted to protect B.'s rights.^^^ 
 
 The right to the use of outside walls is one of which equity takes 
 cognizance to enforce by injunction and where a lease does not pre- 
 clude the painting of pictures on outside walls to advertise a business, 
 the lessee may have the lessor enjoined from interfering with such 
 form of advertising.^^^ However, where the sign space, to which sev- 
 eral tenants have the right for their business purposes, is properly 
 and reasonably used by some of them to the exclusion of the re- 
 mainder, the former, having prior possession, will not be enjoined 
 from such exclusive use at the suit of the latter.^^* A lease of rear 
 offices containing no privileges or directions as to the lessee's right 
 to place signs, gives the lessee no right, as against other lessees, to 
 place his sign in a particular locality arbitrarily chosen by him. A 
 court of equity will not interfere by injunction until the means for 
 an amicable settlement with the other tenants have been exhausted.^^^ 
 A new tenant would not be prevented from putting his sign on the 
 balcony of the second floor when the lessee of that floor led him to 
 
 "* Lowell V. Strahan, 145 Mass. 1, "^Baldwin v. Morgan, 43 Hun (N. 
 12 N. E. 401, 1 Am. St. 422. Y.) 355. 
 
 "' Pevey v. Skinner, 116 Mass. 129. "'" Law v. Haley, 9 Ohio Dec. R. 
 
 "= Booth v. Gaither, 58 111. App. 785, 17 Wkly. L. Bui. 242. 
 263. ='= Knoeppel v. Kings County F. 
 
 Ins. Co., 48 How. Pr. (N. Y.) 208,
 
 §§ 109, 110] THE INSTRUMENT OF DEMISE, 134 
 
 believe before he took the lease that no objection would be made, 
 such right being conferred as against the lessor by a clause in the 
 lease.^"^ 
 
 § 109. Riparian boundaries. — The general rule is that a riparian 
 owner holds title to the middle of a navigable stream subject to the 
 right of navigation resting in the public. So, where an owner of prem- 
 ises fronting on a river leases the property, the lessee will take to the 
 center thread of the stream, unless there is something in the instru- 
 ment showing a different intention of the parties. That is the legal 
 effect of the conveyance and it cannot be varied or controlled by 
 parol testimony .^^'^ According to these principles a lease of a tract 
 of land bordering on a stream, would include half the bed of the 
 stream and give the lessee whatever rights the lessor has to cut and 
 remove ice.^^® So, a lease of certain land covered by a pond conveys 
 as incident the water and the fish in the pond,^^^ and tide and shore 
 lands extending from a certain lot to deep water will pass under a 
 lease of the lot as an appurtenance thereto.^**' A lessee of land 
 bordering on a stream is entitled to the accretions thereto caused by 
 the receding of the stream or a change in its current, during his 
 term, even though the bank of the stream is named as a boundary of 
 the demised premises. Such accretions will attach to and form a part 
 of the grant, the same as under a deed of conveyance. The accre- 
 tions are a part and parcel of the property, and no reason is perceived 
 why they should not pass under a lease as well as under a deed.^^^ 
 
 WTiere there was a lease "of the east one-half of the north one-half" 
 of a forty-acre tract which was bounded diagonally by a lake, it was 
 held this meant one-half the actual acreage and not one-fourth of the 
 rectangular lot.^**- 
 
 § 110. The reservation to lessor of a right to select a portion of the 
 leased premises and retain them for his own use has the effect of a 
 condition subsequent; and until the option is exercised the whole be- 
 
 ""^ Snyder V. Her sberg, 33 Leg. Int. "'Smith v. Miller, 5 Mason (U. 
 
 (Pa.) 158. S.) 191 22 Fed. Cas. No. 13080. 
 
 '"' Tyler v. Williamson, 4 Mason ^* Brown v. Carkeek, 14 Wash. 
 
 (U. S.) 397, 24 Fed. Cas. No. 14312; 443, 44 Pac. 887. 
 
 Hooker v. Cummings, 20 Johns. (N. '"Cobb v. Lavalle, 89 111. 331, 31 
 
 Y.) 91; Claremont v. Carleton, 2 N. Am. R. 91; Rutz v. Kehn, 143 111. 
 
 H. 369; Ballance v. City of Peoria, 558, 29 N. E. 553. See also, Lom- 
 
 180 111. 29, 54 N. E. 428, reversing bard v. Kinzie, 73 111. 446. 
 
 70 111. App. 546. '"Hartford &c. Min. Co. v. Cam- 
 s'' Marsh v. McNider, 88 Iowa 390, bria Min. Co., 80 Mich. 491, 45 N. 
 
 55 N. W. 469, 45 Am. St. 240, 21 L. W. 351. 
 
 R. A. 333. 
 
 i
 
 135 DESCRIPTION CF PIJEIMISES. [§ 110. 
 
 longs to the lessees.^®^ But an ordinary exception or reservation, if 
 definite and valid, prevents the title from ever passing out of the 
 grantor or lessor.^^* Where a definite general description has been 
 given, and is followed by a loose and indefinite exception, such as 
 '^eing the farm on which I live," it hardly seems possible that the 
 parties intended to create an exception by so unsatisfactory an expres- 
 sion. It is not to be regarded as qualifying and restricting the definite 
 grant, but as a matter merely of further description, introduced for 
 the purpose of further particularity which can be rejected when 
 found inconsistent with what preceded. ^^'^ If an intended exception 
 is not expressed in the contract and is not agreed to by the lessee, it 
 will not be effective to curtail the grant.^'^*^ The clause "which were 
 lately in the occupation of A. B." following a general description is a 
 restriction only where the preceding clause is general and all form 
 but one and the same sentence, and the description is not ended as 
 certain till the end of the sentence. Whether such language is to be 
 construed as restrictive of what has preceded, depends more upon the 
 connection and manner in which it is used, than upon the exact 
 language. The expression "premises" is general and applies alike to 
 a manor, a farm, a building or a tenement. After such a word the 
 phrase "recently occupied by so and so" closely following is not re- 
 pugnant to what has preceded, but gives definiteness and set limits 
 to what has before been indefinitely and generally described as "the 
 premises."^*^ When following a definite description, or when repug- 
 nant to a preceding description, or when manifestly added by way of 
 further description, different rules of construction, and different con- 
 siderations control the effect to be given the phrase.^^^ 
 
 A lease of land, if no reservation is made, includes the improvements 
 or buildings on the premises leased.^^^ The general principle that a 
 lease of land carries with it the mines upon the land applies only 
 where the contract relates to the land generally without exception 
 or reservation.^®" 
 
 ^'' Garcia v. Gunn, 119 Cal. 315, 51 ^''Boe v. Burt, 1 Term R. 701; 
 
 Pac. 684. Sargent v. Adams, 3 Gray (Mass.) 
 
 ==«* Spillman v. Brown, 45 Fed. 291; 72; Mitchell v. Stevens, 1 Ark. (Vt.) 
 
 Munn V. Worrall, 53 N. Y. 44; Low 16; Putnam v. Smith, 4 Vt. 622; 
 
 v. Settle, 32 W. Va. 600, 9 S. E. 922. Hibbard v. Hurlburt, 10 Vt. 173. 
 
 ^= Hibbard v. Hurlburt, 10 Vt. 173. "'* St. Louis Pub. Schools v. Hol- 
 
 ^"Grauel v. Soeller, 52 Hun (N. lingsworth, 34 Mo. 191. 
 
 Y.) 375, 24 N. Y. St. 278, 5 N. Y. 254. '»» Shaw v. Wallace, 25 N. J. Law 
 
 '"Alger V. Kennedy, 49 Vt. 109, 453; citing Keyse v. Powell, 2 E. & 
 
 24 Am. R. 117; Swyft v. Eyres, Cro. B. 132, 75 E. C. L. 132. 
 Car. 548.
 
 § 111] THE INSTRUMENT OF DEMISE. 136 
 
 Where certain lots were definitely and unconditionally excepted 
 from a lease of a larger parcel of ground, such lots did not pass to 
 the lessee even though the reason assigned for excepting them was that 
 they were subject to outstanding leases, which was not true, because 
 these leases were not in writing and consequently void by the statute 
 of frauds.^^^ 
 
 V. Duration of Term. 
 
 § 111. Leases may at law be for years, for life or of perpetual 
 duration. Indeed, they may be made for any period which will not 
 exceed the interest of the grantor in the premises.^^^ Thus, a demise 
 to a person, his heirs and assigns, for such term of time as he pays 
 rent, he on his part covenanting for himself and his heirs to pay rent 
 and perform covenants, is a perpetual lease.^^^ A lease, no matter 
 how long, does not offend the rule against perpetuities because it 
 does not suspend the power of alienation. The concurrent action of 
 lessee and lessor can always pass a clear estate and discharge any 
 burdens or conditions created by the lease.^®* Nor is a lease for a 
 term of years to commence in the future, however remote, objection- 
 able on this score. The free and active circulation of property is not 
 in any way impeded by such a disposition as that. But an agree- 
 ment to grant a lease for life at a time more than twenty-one years 
 in the future is bad because the quantum of the interest cannot be 
 determined within the prescribed time, and so the lease could not vest 
 within that time. Such an agreement would not be made good by a 
 covenant for perpetual renewal.^"^ 
 
 In Alabama it is provided by statute that leases shall not be made 
 for a longer period than twenty years.^^'^ The construction placed 
 upon this act is that a lease, though for a term exceeding the prescribed 
 limit, will stand good for the term authorized by the statute. The 
 statute draws the boundary line, separating the legal from the illegal 
 
 ^"Hargrove v. Miller, Busb. L. '»* Toms v. Williams, 41 Mich. 552, 
 
 (N. Car.) 68. 2 N. W. 814; Gomez v. Gomez, 81 
 
 '^^ Warner v. Tanner, 38 Ohio St. Hun (N. Y.) 566, 31 N. Y. S. 206; 
 
 118; Folts v. Huntley, 7 Wend. (N. Henderson v. Virden Coal Co., 78 
 
 Y.) 210; Theobalds v. Duffoy, 9 111. App. 437; Richmond, City of, v. 
 
 Mod. 102; Denn v. Barnard, 2 Cowp. Davis, 103 Ind. 449. 
 
 595. 3"= Redington v. Browne, 32 L. R. 
 
 ^ Folts V. Huntley, 7 Wend. (N. Ir. 347. 
 
 Y.) 210. ssoCode of 1886, § 1836.
 
 137 DURATION OF TERM. [§ 113 
 
 parts and leaves it to stand good for the term for which the lessor 
 had authority to create the leasehold estate.^'''^ 
 
 In New York leases of agricultural lands for a longer period than 
 twelve years are prohibited by a constitutional provision. The char- 
 acter of the land and not the purpose for which it is leased is made 
 the test of the validity of the lease.^®^ A lease for life is valid for 
 twelve years after which it would terminate by operation of law.^®* 
 A covenant for renewal extending the term for a greater period than 
 twelve years is bad, but the lease is good for the first term.*°*^ So 
 two leases executed at the same time and as part of the same transac- 
 tion which create a term for more than twelve years violate the con- 
 stitutional provision.*"^ 
 
 Where there is nothing in the contract requiring the personal pres- 
 ence of the lessee, a lease for years is not terminated by his death,*"^ 
 nor would such a lease be terminated by the death of the lessor.**^^ 
 
 § 112. The term for which a lease for years is to run should be 
 certain, with a definite time for commencement and for termination. 
 For the sake of the validity of the instrument the duration of a lease 
 must be certain; this includes both its commencement and termina- 
 tion. Unless these requirements are complied with, an estate at will 
 only is created.*"* A long settled rule makes it essential to the valid- 
 ity of a lease that it be for a definite period, either expressly fixed or 
 capable of being fixed by computation. Thus a lease of premises so 
 long as the buildings should be used for a certain business was held not 
 to create a term for years because it lacked a definite term.'**'^ 
 A lease for so long as both parties shall please, or for 
 
 ^»' Robertson v. Hayes, 83 Ala. 290, Pick. (Mass.) 260, 271; Collier v. 
 
 3 So. 674; Trammell v. Chambers Hyatt, 110 Ga. 317, 35 S. E. 271; 
 
 Co., 93 Ala. 388, 9 So. 815. Corby v. McSpadden, 63 Mo. App. 
 
 '"" Odell v. Durant, 62 N. Y. 524. 648; McClain v. Abshire, 72 Mo. 
 
 ^'' Parish V. Rogers, 20 N. Y. App. App. 390; Reed v. Lewis, 74 Ind. 
 
 Div. 279. 433, 39 Am. R. 88; Western Transp. 
 
 *'"Hart V. Hart, 22 Barb. (N. Y.) Co. v. Lansing, 49 N. Y. 499; Lloyd 
 
 606. V. Cozens, 2 Ashm. (Pa.) 131; Lea 
 
 ^" Clark V. Barnes, 76 N. Y. 301, v. Hernandez, 10 Tex. 137; United 
 
 32 Am. R. 306. States v. Gratiot, 14 Pet. (U. S.) 
 
 ^'Alsup v. Banks, 68 Miss. 664, 9 526; Bishop of Bath's Case, 6 Coke 
 
 So. 895. 35. 
 
 *^ Jaques v. Gould, 4 Cush, ^'" Melhop v. Meinhart, 70 Iowa 
 
 (Mass.) 384. 685, 28 N. W. 545. See also, Cheever 
 
 ^1 Shep. Touch 272; Co. Litt. v. Pearson, 16 Pick. (Mass.) 260, 
 
 45b; Murray v. Cherrington, 99 266. 
 Mass. 229; Cheever v. Pearson, 16
 
 § 113] THE INSTr.rilEXT OF DEMISE. 138 
 
 SO long as the lessee shall please, is said to be a lease at the will 
 of both lessor and lessee. It is at most a tenancy from year to year, so 
 long as both parties please.*"^ And a lease to continue until the party 
 of the second part is prepared to improve the ground with new build- 
 ings was held to be for so indefinite a period that it constituted a mere 
 tenancy at will. Its duration was uncertain, since it could not be 
 known when the lessor would be prepared to improve the property 
 with new buildings.*"'^ A license given by a school district to three 
 parties to erect a second story over a school house, and followed by a 
 lease to them for so long as the building should stand, could not take 
 effect as a lease for years because it was for no specified term; and it 
 could not be more than a life estate because there were no words of 
 inheritance. So the proper construction was that the licensee owned 
 the second story all the time. There had been in fact no lease at all.*°^ 
 The duration of a valid term may, however, be determined by some- 
 thing ex post facto referred to in the lease, provided the matter occur 
 in the lifetime of both lessor and lessee."**''' The latter requirement is 
 because no interest passes out of the lessor during his lifetime, and 
 after his death the naming of the years will come too late. Thus it is 
 said in an ancient case •^'^^ *'If I make a lease for years, for so many 
 years as I. S. shall name, and afterwards I. S., in my lifetime, names 
 a certain number of years, it shall be a good lease for so many years as 
 he names, for it is my demise and I am content that he should name 
 the years, which by my own reference to his nomination, is as much 
 as if I myself had named them. This instance is put in illustration 
 of the general principle, that every contract sufficient to make a lease 
 for years ought to have certainty in three limitations, viz.: in the 
 commencement of the term, in the continuance of it, and in the end 
 of it. So all these ought to be known at the commencement of the 
 lease; but it is a sufficient compliance with this requirement that the 
 duration of the term may be made certain." For a lease may be good 
 although its duration must be settled by something dehors the lease 
 itself. Thus, where a tenant erected improvements during the term 
 and the lessor covenanted to allow him to continue to occupy until 
 they were paid for out of the rents and profits, a valid term for years 
 was created.*^^ A lease for such time as lessee shall continue to be 
 
 *«°Doe V. Richards, 4 Ind. 374; Coke 153; Say v. Smith, 1 Plowd. 
 
 Bacon Abr. Lease, L. 3. 269; Western Transp. Co. v. Lan- 
 
 ^o' Corby v. McSpadden, 63 Mo. sing, 49 N. Y. 499. 
 
 App. 648. "" Say v. Smith, 1 Plowd. 269. 
 
 ^"s Peaks V. Blethen, 77 Me. 510. "' Batchelder v. Dean, 16 N. H. 
 
 **° Rector of Chedington's Case, 1 265.
 
 139 DURATION OF TERM. [§§ 113, 11-1 
 
 postmaster was construed to mean for the four years during which 
 his commission would last if it were not terminated in some unex- 
 pected way, for in every estate for years the term must be certain.*^^ 
 
 § 113. Leases running from an indefinite future time. — If a lease 
 has a certain appointment of the number of years, although the com- 
 mencement or the end of it is certainly appointed upon an uncertain 
 time, yet such lease shall be good as a lease for years. Wlien a lease 
 is to run for a certain term of years, it is not rendered invalid by 
 the circumstance that it is to begin upon the completion of an un- 
 finished building. It has been conceded that a lease for years may 
 begin when a home is suitable to be occupied according to the maxim. 
 Id certum est quod cerium reddi potest. '^'^^ 
 
 The circumstance that the term does not take effect at once, but is 
 postponed till a future date, is no objection, because it is a familiar 
 doctrine that a lease for years may commence in futuro, as being an 
 estate which could, even in ancient times, be created without livery 
 of seisin.^^* Such a lease is a valid lease in praesenti for a term to 
 commence in futuro, and the necessary element of certainty in the 
 commencement of the term is satisfied by the completion of the 
 building as prescribed.*^^ 
 
 § 114. A contingent limitation of a term is valid and enforceable. 
 
 A lease of a grist-mill contained an agreement that, if the mill 
 broke down, so that it could not be operated, the tenancy should ex- 
 pire. This provision created a contingent limitation, and when the 
 contingency happened, the tenant was bound to take notice of it and 
 surrender the possession.^^^ When the period is fixed and definite, it 
 does not invalidate the lease that it may come to an earlier termi- 
 nation. Whatever the term, it may be subject to a condition which 
 
 *"Easton V. Mitchell, 21 111. App. Field v. Howell, 6 Ga. 423. Under 
 
 189. sections 1044-1047 of the Civil Code 
 
 "'McClain v. Abshire, 72 Mo. of California land may be leased to 
 
 App. 390; Noyes v. Longhead, 9 another pending its possession by 
 
 Wash. 325, 37 Pac. 452; Hammond a tenant whose term has not ex- 
 
 v. Barton, 93 "Wis. 183, 67 N. W. pired. A lease to begin in future 
 
 412; Murray v. Cherrington, 99 is valid. Rice v. Whitmore, 74 Cal. 
 
 Mass. 229. 619, 16 Pac. 501. 
 
 ^* McClain v. Abshire, 72 Mo. App. *''• Hammond v. Barton, 93 "Wis. 
 
 390; Batchelder v. Dean, 16 N. H. 183, 67 N. W. 412; Colcough v. Car- 
 
 265; Noyes v. Loughead, 9 Wash, peles, 89 Wis. 239, 61 N. W. 836. 
 325, 37 Pac. 452; Hammond v. Bar- ""Scott v. Willis, 122 Ind. 1, 22 
 
 ton, 93 Wis. 183, 67 N. W. 412; N. E. 786.
 
 § 114] THE INSTRUMENT OF DEMISE. 140 
 
 is a qualification annexed to the estate by the grantor*^'' or the 
 lessor/ ^^ whereby the estate or term granted may, among other things, 
 be defeated or terminated.*^'' Unless a definite time is set for its 
 termination, it does not take effect as a term for years, and either 
 party would be able to put an end to the holding, although the condi- 
 tion puts it in the control of one. But in spite of the fact that a 
 tenancy at will was created rather than a term for years, the hap- 
 pening of the contingency would still be effective to end the estate 
 at will. So, a lease of premises by parol till they should be sold would 
 be terminated on a sale without any notice to quit. The agreement to 
 give up possession on a sale operated as a contingent limitation, and 
 when the contingency happened the term was at an end.*^° Such a 
 stipulation in a lease would usually contemplate a perfect sale by deed 
 which would pass both title and right to possession. As long as the 
 landlord had the right of possession, the tenant could occupy the 
 property. Therefore, a contract of sale which did not deprive the 
 landlord of the right of possession and did not disturb the tenant's 
 right to the occupancy of the property was not a sale contemplated in 
 the lease.*^^ However, it is not competent for the tenant to object 
 that the contract of sale was not evidenced by deed conveying a per- 
 fect title. It is quite immaterial whether the agreement for a sale 
 was such as could be coerced. Objections to its validity concerned 
 the parties themselves, and it was not for a stranger to supervise 
 their contract. The event on which the right of the tenant to occupy 
 the land was to cease did actually happen as soon as the landlord 
 sold it with a right to immediate possession.*^^ jj^ qj^q case there was 
 a lease of premises for five years if not sold, reserving annual rent 
 payable semi-annually and providing that if the landlord sold within 
 the five years, he should pay reasonable damages to the tenant. This 
 term might be ended in two modes, either by sale or by lapse of time, 
 and reasonable damages only became payable in case the tenancy was 
 terminated before the crops matured in a single season.^^^ Where 
 there was a lease for three years if land were not sold, with pro- 
 vision that if it was not sold and landlord did not return and occupy 
 it himself, the said lessee was to continue to have possession, it was 
 
 *^'Sperry v. Pond, 5 Ohio 387, 24 Stewart v. Pier, 58 Iowa 15, 11 N. 
 
 Am. Dec. 296. W. 711; Dean v. Fail, 8 Port. (Ala.) 
 
 *" Pelts V. Huntley, 7 Wend. (N. 491. 
 
 Y.) 210. *" Stewart v. Pier, 58 Iowa 15, 11 
 
 *^» Warner v. Tanner, 38 Ohio St. N. W. 711. 
 
 118. *="Dean v. Fail, 8 Port. (Ala.) 491. 
 
 **> Clark V. Rhoads, 79 Ind. 342; *^ Taylor v. Frohock, 85 111. 584.
 
 141 DURATION OF TERM. [§ 115 
 
 held that entry by the landlord would terminate it just the same as a 
 sale of the land.*^* But in the case of a lease of land to a club dur- 
 ing the existence of said club, the lease to cease whenever said club 
 shall cease to exist as now organized, it was held the incorporation 
 of the club did not put an end to the lease.*^^ 
 
 The expression "used for railroad purposes" in a lease was held to 
 mean public use for such purposes. Thus, a lease to a railroad was 
 to continue as long as the land demised was used for railroad pur- 
 poses. The main tracks were changed and this line was sold to be 
 used for a private siding. The court decided that this terminated the 
 lease.*^^ 
 
 Where lessor reserved right to sell premises, in which case he was 
 to purchase improvements from the tenant, it was held that the 
 tenant could not be forced to continue as tenant of the vendee, but 
 could insist upon a purchase of the improvements.*^^ 
 
 § 115. Happening of contingency. — When the act which termi- 
 nates a contingent lease is done by the lessee, or is peculiarly within 
 the knowledge of the lessee, the mere doing of the act does not neces- 
 sarily bring the lease to an end. Thus a lease of a saw-mill was to 
 continue until certain logs had been sawed, and it was held that the 
 mere sawing of the last log did not ipso facto terminate the lease with- 
 out notice to the landlord to that effect. The bare statement by the ten- 
 ant that he had ceased sawing and had discharged his mill hands and 
 the knowledge of these facts by the landlord did not constitute such 
 notice. The tenant had a right to retain possession till he had re- 
 moved his lumber and a duty to put the premises in proper repair be- 
 fore he asked the landlord to accept possession. If the tenant had 
 fully performed his contract and then abandoned the premises, with 
 the knowledge of the landlord, there would be force in the contention 
 that the lease was at an end and no formal surrender necessary. But 
 the premises were not in such condition that the landlord could be 
 called on to accept possession. It followed that the tenant was re- 
 sponsible for negligently leaving the premises without a watchman 
 and liable for damage caused by a fire which occurred in consequence 
 of such neglect. ^^^ 
 
 After a contingent limitation, as distinguished from a condition, 
 
 *=*Lord V. Walker, 49 Mich. 606, ^"Kugel v. Painter, 166 Pa. St. 
 14 N. W. 564. 592, 31 Atl. 338. 
 
 ^^ Alexander v. Tolleston Club, *" Morton v. Weir, 70 N. Y. 247. 
 110 111. 65. ^Stevens v. Pantlind, 95 Mich. 
 
 145, 54 N. W. 716.
 
 §' 116] THE INSTRUMENT OF DEMISE. 142 
 
 no act is necessary to vest the right in him who has the next expectant 
 interest, since the limitation marks the period which is to determine 
 the estate, without entry or claim. *^^ A provision in a lease that the 
 lessor may "terminate the lease at the end of any year by giving sixty 
 days' previous notice, in case he should sell or desire to rebuild" is 
 not a condition but a limitation and the term expires by force of the 
 sale and notice, in sixty days thereafter, without any further act on 
 the part of the lessor. Where covenants form conditions and not con- 
 ditional limitations, a breach of them does not ipso facto terminate 
 the lease. If broken, the lessor may thereupon take advantage of the 
 breach and declare the lease at an end. The lessor, upon breach, is 
 not to be in immediately of his former estate, but at his option, the 
 hiring and the relation of landlord and tenant are to cease and are to 
 continue till he shall otherwise elect.*^" If a grant be on condition, 
 only the grantor or his representatives could avoid the estate by 
 entry, and so a remainder man might be defeated by their failure to 
 enter, but when it is a limitation, the former estate determined and the 
 remainder man may enter without any act, such as entry or claim.*^^ 
 
 A lease which was to continue during "the life of a building" was 
 terminated when a material portion of the building was destroyed by 
 fire. The question before the court was as to the interpretation of 
 the phrase "life of the building." It decided the life of the building 
 was terminated, within the meaning of the lease, when the building 
 had been injured by fire or other causes to such an extent as substan- 
 tially to destroy the part demised and to render it impracticable for 
 the lessees to perform the covenant to rebuild such part except by 
 rebuilding other important parts of the building not covered by the 
 lease.*^'' 
 
 § 116. Lease for life. — According to the strict rule of the common 
 law, it was necessary that the word 'Tieirs" be used in a grant of real 
 estate in order to create an estate of inheritance, and the absence of 
 this technical word prevented the grantee from taking anything more 
 than a life interest. *^^ Thus a lease to A, his executors, administra- 
 tors and assigns forever was a lease for life or a life estate only.*^* 
 Where a lease of premises was made to a minister of the gospel during 
 
 "'Miller v. Levi, 44 N. Y. 489; *" Ainsworth v. Moriah Lodge, 172 
 
 Clark v. Rhoads, 79 Ind. 342. Mass. 257, 52 N. E. 81. 
 
 ""Benjamin v. Benjamin, 1 Seld. «^ Jones Real Prop, in Conveyanc- 
 
 (N. Y.) 383; Beach v. Nixon, 5 ing, % 575, et seq. 
 
 Seld. (N. Y.) 35. "^Williams v. Woodard, 2 Wend. 
 
 «i Stearns v. Godfrey, 16 Me. 158. (N. Y.) 487.
 
 143 DURATION OF TERM. [§ 116 
 
 his natural life, for his use and improvement, and for the benefit of 
 the ministry during his successor's good pleasure, the leasehold 
 estate terminated upon the death of the original lessee. The terms 
 of the instrument constituted it a personal lease to a minister desig- 
 nated by name as the lessee and the absence of the word "heirs" 
 prevented him from taking an estate of inheritance.*^^ In another 
 case there was a lease of premises for five years with privilege of 
 purchasing improvements at the end of that time. If the lessor 
 did not purchase, the lease was to be renewed for another five-year 
 term and so on indefinitely, but the lease in terms only bound ex- 
 ecutors, administrators and assigns. The construction put upon this 
 instrument was that it was only intended to continue during the 
 lives of the parties, for the law did not favor perpetual leases, and 
 the intention to create one must appear from unequivocal language 
 and would not be left to inference.*^^ Formerly, in case of uncertain 
 leases made until such a thing be done or so long as such a thing shall 
 continue, if livery of seizin were made upon them, they might have 
 been good leases for life, determinable upon these contingencies, al- 
 though not good leases for years. But where by statute the word 
 "heirs" is not necessary to create a fee, it would seem that an estate in 
 fee was created by such a lease, subject to be determined by the hap- 
 pening of the contingency.*^'^ 
 
 When a lease i-s granted for a term of several lives, the construc- 
 tion to be placed upon it is that it was granted for the term of the 
 longest of the lives of the persons named therein.*^^ The same con- 
 struction was placed upon a lease to two persons *^for and during their 
 natural life." The court said : "The lessees are two. The pronoun 
 is in the plural and must include both of them. The noun life is in 
 the singular, and refers to the life of one as much as to the other and 
 must therefore be taken separately rather than Jointly. If the lease 
 is to terminate upon the death of one only, the full meaning of the 
 language has not been exhausted. There is still one life included in 
 the word 'their' which has not ceased and it must, therefore, follow 
 that the lease has not terminated."*^^ The expression "for the space 
 of twenty years or during our natural lives" when used to describe 
 the length of a term was construed to give an estate for twenty years 
 provided the lessees lived so long. It did not confer any rights after 
 
 ^''Merwin v. Camp, 3 Conn. 35, *"Reed v. Lewis, 74 Ind. 433; cit- 
 43; Co. Litt. 62b. ing Co. Litt. 45b, n. 2. 
 
 "" Brush V. Beecher, 110 Mich. «« Flagg v. Badger, 58 Me. 258. 
 597, 68 N. W. 420. "^Kenney v. Wentworth, 77 Me. 
 
 203, 205, per Danforth, J.
 
 §§ 117, 118] THE INSTRUMENT OF DEMISE. 144 
 
 the expiration of the twenty years, and if the lessees should die be- 
 fore the end of the twenty years the lease would expire sooner.**" 
 
 In the absence of any growing crop upon the leased premises, the 
 general rule seems to be that upon the death of a tenant for life, all 
 his interest and all the interest of his lessee ceases.**^ 
 
 § 117. Errors in calculation. — Inaccuracy of language which re- 
 sults from inserting a word not meant, or using the wrong word, will 
 not be permitted to defeat the intention of the parties, when such in- 
 tention can be distinctly ascertained from other portions of the written 
 instrument. This general principle is applied to leases and instru- 
 ments of demise.**^ Wliere a lease which fixes a definite time for 
 the commencement of the term, states the number of months or years 
 it is to run and then gives a wrong date for its termination, there is 
 a clear mistake in calculation and the actual intention of the parties 
 will prevail. There is no ambiguity or opportunity for applying rules 
 by construction, but merely an error in computation.**^ In explain- 
 ing its reasons for arriving at this conclusion, the Missouri court 
 says: "What then is the principal or prominent idea in the words 
 of both parties to this lease, and concerning which there was least 
 probability of mistake ? It would seem to be the number of years for 
 which the lease was to run. When parties are in treaty for a lease of 
 the character of the one in question, where buildings were to be 
 erected by the lessee and a ^ound rent paid, it would be natural for 
 both parties to have prominently in view its duration, whether it 
 was to be for five, ten, fifteen or twenty years. This would be the 
 material thing to be fixed."*** 
 
 § 118. A lease is a single instrument in spite of the fact that it 
 covers separate parcels of land in different localities, and the pre- 
 sumption is that it will terminate as to all the parcels demised at the 
 same time. Thus a lease of separate timber lots gave the lessee the 
 right to box turpentine trees and to cut timber for a saw-mill. It 
 contained a stipulation that the right to box trees should expire five 
 
 «« Sutton v. Hiram Lodge, 83 Ga. N. E. 668; Siegel &c. Co. v. Colby, 
 
 770, 10 S. E. 585. 176 111. 210, 52 N. E. 917. 
 
 "1 Carman v. Hosier, 105 Iowa "' Siegel &c. Co. v. Colby, 176 111. 
 
 367, 75 N. W. 323; Page V. Wight, 14 210, 52 N. E. 917, 61 111. App. 315; 
 
 Allen (Mass.) 182; Hoagland v. Biddle v. Vandeventer, 26 Mo. 500; 
 
 Crum, 113 111. 365; Peck v. Peck, 35 Nindle v. State, 13 Neb. 245, 13 N. 
 
 Conn. 390. W. 275. 
 
 **^ Packer v. Roberts, 140 111. 9, 29 *" Biddle v. Vandeventer, 26 Mo. 
 
 500, 504, per Napton, J.
 
 145 DURATION OF TEEM. [§ 119 
 
 years from the time the lessee began to cut the timber. It was urged 
 that this meant that the lease should terminate, and terminate only 
 as to each lot in five years from the time of the beginning of the cut- 
 ting of timber upon that particular lot. But the court saw nothing 
 in the language of the lease to indicate that it should terminate piece- 
 meal, or that the several lots should, or could, drop out of it at dif- 
 ferent times. The question is not how the timber was located, whether 
 on one body of land or on several different tracts, but how it was 
 treated and dealt with by the parties to the contract.^*^ But it is 
 possible to have the term expire as to some part of the premises every 
 year. As where a lease provided for clearing so many acres of land 
 every year for three years and allowed the lessor three crops off the land 
 cleared ; it was held that the agreement meant to give lessee the right 
 to make three crops off the land cleared the last year and only three 
 off the land cleared the preceding years.***^ However, where land was 
 leased for a term of four years and to be broken by a certain date if 
 practical, it was held that the term did not extend beyond the four 
 years even though it was impractical to break the land till the follow- 
 ing year.**^ 
 
 § 119. In determining when a term begins, the word "from" may 
 be either exclusive or inclusive, as would best express the intention of 
 the parties, to be gathered from the whole instrument.**^ The early 
 English case of Pugh v. Duke of Leeds involving this point was an 
 issue to try whether a lease made in pursuance of a power was a good 
 and valid lease. The power provided that leases executed in pursu- 
 ance of it should not be in reversion, remainder or expectancy, and 
 the lease had been made to commence 'from the day of the date.' 
 Therefore the question was whether this was a lease in possession. 
 And it turned upon this whether to commence 'from the day of the 
 date' in a deed is to be construed inclusive or exclusive of the day it 
 bears date. Lord Mansfield pronounced the opinion of the court, 
 holding the lease was valid and concluded as follows : "The ground 
 of the opinion and judgment which I now deliver is, that 'from' may 
 in the vulgar use and even in the strict propriety of language, mean 
 either inclusive or exclusive; that the parties necessarily understood 
 and used it in that sense which made the deed effectual ; that courts 
 
 *« Perkins v. Peterson, 110 Ga. 24, "^Burris v. Jackson, 44 111. 345. 
 
 35 S. E. 319; Baxter v. Mattox, 106 «« McGlynn v. Moore, 25 Cal. 384; 
 
 Ga. 344, 32 S. E. 94. Deyo v. Bleakley, 24 Barb. (N. Y.) 
 
 "«Dodson v. Hall, 11 Heisk. 9; Pugh v. Duke of Leeds, Cowp. 
 
 (Tenn.) 198, 203. 714. 
 
 Jones L. & T.— 10
 
 § 119] THE INSTRUMENT OF DEMISE. 146 
 
 of justice are to construe the words of parties so as to effectuate their 
 deeds, and not to destroy them, more especially where the words 
 themselves abstractedly may admit of their meaning."**^ The extent 
 and effect of this decision has been well explained by the Supreme 
 Court of Massachusetts in the following quotation : "Before the case 
 of Pugh V. The Duke of Leeds, all the cases agree that the words 
 'from the day of the date', are words of exclusion. So plain was this 
 meaning thought to be, that leases depending on this rule of con- 
 struction were uniformly declared void, against the manifest inten- 
 tion of the parties. Of this doctrine, thus applied. Lord Mansfield 
 very justly complains, not, however, on the ground that the general 
 meaning of the words had been misunderstood, but because the plain 
 intention of the parties to the contract had been disregarded. All 
 that was decided in that case was, that 'from the day of the date' 
 might include the day, if such was the clear intention of the con- 
 tracting parties ; and not that such was the usual signification of the 
 words."*^" So where the validity of the instrument was not at issue 
 but the question raised was whether the tenant vacated the premises 
 in due season, it was held that a lease from the first of a month be- 
 gan on the second day of the month.*^^ On the other hand, when a 
 lease for a year has been construed by the parties to commence on the 
 ■ day of its date by a taking of possession then, that day is to be in- 
 cluded in computing the year and the term expires on midnight on 
 the preceding day in the next year.*^^ In another case the court in- 
 ferred that the parties intended to include the day of the date because 
 there was a provision for the payment of quarterly rent at correspond- 
 ing dates throughout the year.*^^ The Connecticut court, however, 
 without noticing the ancient authorities, held that a lease from the 
 first day of a month included that day and expired on the last day 
 of the next preceding month a year hence. The court said that they 
 believed it was "the common understanding of the community, at 
 least in this state, that a lease from the first of April should com- 
 mence on the first of April." They add: "In most of our cities 
 moving day is either April first or May first. One tenant goes out and 
 
 **^ Pugh V. Duke of Leeds, Cowp. ^- Buchanan v. Whitman, 151 N. 
 
 714, 725. Y. 253, 45 N. E. 556, affirming 76 
 
 ^^''Bigelow V. Willson, 1 Pick. Hun 67; Marys v. Anderson, 24 Pa. 
 
 (Mass.) 485, 494, per Wilde, J.; St. 272. 
 
 quoted with approval in Goode v. *" Deyo v. Bleakley, 24 Barb. (N. 
 
 Webb, 52 Ala. 452. Y.) 9. 
 
 "^ Atkins v. Sleeper, 7 Allen 
 (Mass.) 487. 
 
 II
 
 147 ILLEGAL LEASES. [§ 130 
 
 another goes in on that day. Yet leases almost invariably run from 
 the first of April or May. It has never been supposed that the in- 
 going tenant by entering on that day was guilty of any intrusion or 
 trespass."*^* Whatever view may be taken of the preceding conflict 
 between authorities, it seems settled that the words "from the date" 
 and "from day of the date", when used in a lease to designate the 
 commencement of a term have precisely the same meaning. This 
 principle has long been established. It is laid down by Lord Coke and 
 by Lord Mansfield. It is also in strict conformity to the legal sense 
 of the words. The date of a lease is not the hour or the minute when 
 it was executed, but a memorandum of the day when the deed was 
 delivered.*^^ Generally a lease would not begin to run from a date 
 prior to its execution. That a lease can relate back, without words 
 clearly indicating that to be the intention of the parties, is a propo- 
 sition which cannot be sustained. A landlord cannot claim rent or 
 a tenant be entitled to enjoy the property before the relation of land- 
 lord and tenant existed. A reference to a past date as the time from 
 which a term shall run for a given number of years does not make 
 rent payable from that time. Such a reference is merely a convenient 
 mode of designating the time when the term ends.*^'' 
 
 VI. Illegal Leases. 
 
 § 120. A colorable lease for an illegal purpose cannot be enforced. 
 
 Certain contracts, such as gambling contracts, are illegal either be- 
 cause they are within the prohibition of some statutory enactment 
 or because they are contrary to the policy of the common law. The 
 general rule is that courts will not grant a relief to parties to illegal 
 contracts and this applies to illegal leases. Thus, in one case, a lease 
 was executed and entered into knowingly for the purpose of aiding 
 an unlawful conspiracy and combination to limit the production and 
 to enhance the price of an article of merchandise in violation of an 
 act of legislature. It was held that no recovery of rent could be 
 had upon this instrument. When suit is brought on an unexecuted 
 contract, void as against sound morals or public policy, the law will 
 
 '^Fox V. Nathans, 32 Conn. 348. ing Co. Lit. 46b, and Pugh v. The 
 
 In Marys v. Anderson, 24 Pa. St. Duke of Leeds, Cowp. 714, 719; Ba- 
 
 272, it was suggested that the mat- con v. Waller, 1 Rolle 387, 3 Bulst. 
 
 ter might be affected by the univer- 203. 
 
 sal custom of the people. ^^ Commonwealth v. Contner, 21 
 
 '•■^Bigelow v. Willson, 1 Pick. Pa. St. 266. 
 (Mass.) 485, 494, per Wilde, J., cit-
 
 § 121] THE INSTRUMENT OF DEMISE. 148 
 
 not lend its aid but will leave the parties where it finds them.*" If 
 a contract is illegal in the first instance the mere fact that it has 
 been executed gives no right of recovery."*^^ 
 
 If a building is let to a tenant who enters into possession under 
 a lease, the building is not under the control of the landlord after 
 such entry, but it is under the control of the tenant as long as he con- 
 tinues in possession under the lease, unless there are special pro- 
 visions in the lease which give the control to the landlord. So it 
 was held that a landlord not in control was n.ot responsible for the il- 
 legal sale of liquor by his tenant although he could have taken con- 
 trol by ejecting the tenant because of such illegal sale.*^^ This ques- 
 tion was presented in a difllerent form where a defendant charged 
 with the illegal sale of liquor set up a lease of the barroom to his 
 former barkeeper. The jury found that the lease was merely color- 
 able for the purpose of acquitting the defendant from his accusa- 
 tion and the lessor was charged as principal in maintaining the nui- 
 sance.**"* 
 
 An attempt was made to vacate a lease under a provision that il- 
 legal use should annul or make void the lease or other title under 
 which the occupant guilty of such conduct holds. The illegal use 
 had been by an undertenant and it was held that the lease of such 
 undertenant only was avoided and not the principal lease to the origi- 
 nal lessee. Any other construction would operate harshly on inno- 
 cent parties. The effect of it would be to destroy the title of a lessor 
 however valuable the term by the acts of his undertenant of which 
 he had no knowledge and over which for the time he had no con- 
 trol.*" 
 
 § 121. Kind of illegality. — Ordinarily the illegality in an illegal 
 lease is not found in the instrument itself but consists in the purpose 
 to which the parties intend that the demised premises shall be put. 
 To make a lease invalid on such a ground it must be proved that the 
 intention of an illegal use was mutual to both parties.**^^ It is per- 
 
 ^^ American &e. Co. v. Peoria &c. ^^° Commonwealth v. Locke, 148 
 
 Co., 65 111. App. 502. Mass. 125, 19 N. E. 24. 
 
 *=* Miller v. Ammon, 145 U. S. 421, "' Healy v. Trant, 15 Gray 
 
 12 Sup. Ct. 884; Hutehins v. Weldin, (Mass.) 312. 
 
 114 Ind. 80, 15 N. E. 804; Bishop v. «= Ryan v. Potwin, 60 111. App. 
 
 American &c. Co., 157 111. 284, 41 N. 637; Gibson v. Pearsall, 1 E. D. 
 
 E. 765. Smith (N. Y.) 90; Arras v. Rich- 
 
 *"» Commonwealth v. Wentworth, ardson, 5 N. Y. S. 755. 
 146 Mass. 36, 15 N. E. 138. 
 
 t
 
 149 ILLEGAL LEASES. [§ 121 
 
 missible, however, to go outside the lease to find the actual intention 
 of the parties in regard to the use to which they intend the premises 
 to be put. A lease may be avoided by parol evidence that it was made 
 with the intention that the demised premises should be used for an 
 unlawful purpose, and of their actual use for that purpose, although 
 it contains an express covenant of the lessee to make no unlawful 
 use of them.*®^ A contract to let a house for a purpose forbidden 
 by a city ordinance is void,*^* and if a business, such as maintaining 
 a billiard parlor which requires a license from city authorities, is 
 carried on in the leased premises without any license, a lessor, who 
 has leased the premises for this purpose, with knowledge that no li- 
 cense had been granted, could not recover rent under his lease.*®^ 
 Still a lease valid upon its face is not to be condemned as unlawful 
 because the purpose for which the demised premises are to be used 
 might, under certain circumstances, be within the prohibition of a 
 statute.*^® Certain premises were leased for the sale of intoxicat- 
 ing liquors but it was distinctly agreed that the traffic should be law- 
 ful. It was held under these circumstances that the lessor could re- 
 cover rent.^^^ 
 
 In fixing upon the lessor the knowledge of the illegal purpose to 
 which the leased premises are to be put, the knowledge of a rental 
 agent may be imputed to his principal.*^^ It has been suggested, 
 however, that the doctrine of constructive notice can only be applied 
 in favor of an innocent party and cannot be set up for the benefit 
 of one who is setting up his own wrongful act in his defense. So, 
 where an agent rented premises for gambling purposes, an innocent 
 principal was allowed to disown the agent's contract and recover, on 
 a quantum valehat, for the use of the premises.*^^ 
 
 In certain cases a lease has from the nature and situation of the 
 
 *" Sherman v. Wilder, 106 Mass. for rent provided the jury find that 
 
 537; Ernst v. Crosby, 140 N. Y. 364, lessors did not knowingly let the 
 
 35 N. B. 603; Vanbuskirk v, Mc- premises for the illegal sale or 
 
 Naughton, 34 N. Bruns. 125. keeping for sale of intoxicating 
 
 ^" Milne v. Davidson, 5 Mart. N. liquors, or knowingly permit the 
 
 S. (La.) 409, 16 Am. Dec. 189. premises to be so used. Codman v. 
 
 *«* Simpson v. Wood, 105 Mass. Hall, 9 Allen (Mass.) 335. 
 
 263. ^'«Ryan v. Potwin, 62 111. App. 
 
 ^'' Shedlinsky v. Budweiser &c. 134; Ashbrook v. Dale, 27 Mo. App. 
 
 Co., 163 N. Y. 437, 57 N. E. 620. 649. 
 
 "' Whalen v. Leisy &c. Co., 106 "^ Stanley v. Chamberlin, 39 N. J. 
 Iowa 548, 76 N. W. 842. Where Law 565. See also, Arras v. Rich- 
 premises are let for sale of intoxi- ardson, 5 N. Y. S. 755. 
 eating liquors, lessee will be liable
 
 § 121] THE INSTRUMENT OF DEMISE. 150 
 
 subject-matter necessarily involved the doing of some act forbidden 
 by law and has therefore been held illegal and unenforceable. As 
 where a part of a sidewalk was leased for private purposes in viola- 
 tion of an ordinance, the lease was invalid and an action for rent could 
 not be maintained under it.*'^" So the covenant of a lessor to keep 
 up a dam across a navigable stream was an illegal contract and could 
 not be enforced.*''^ The same doctrine was applied where certain 
 land reserved as the property of the United States was leased by 
 a squatter who had taken possession of it. The lease was illegal and 
 could not be enforced, even between the parties, to prevent the lessee 
 from denying his landlord's title.*'^^ But a provision for the erection 
 of an unlawful structure, such as a bay window which would encroach 
 upon the street, would not render the entire lease void and prevent 
 the recovery of rent.*^^ And a letting which is originally in viola- 
 tion of an ordinance might become valid if acquiesced in by the proper 
 authorities, so that rent could be recovered on it.*'^* 
 
 To establish the defense of illegality, it must be shown that the 
 landlord, at the time the agreement was made with his tenant, was 
 a party to the illegal intent and let the premises in furtherance 
 thereof.*''^ Mere knowledge that the lessee would use the premises 
 in violation of the law is not sufficient to avoid the lease unless the 
 lessor was a party to such intent and did some act in aid and further- 
 ance of the intended violation of the law.^''" The authority on which 
 this rule is based is the well-established doctrine that subsequent il- 
 legal use of goods by a vendee will not prevent the vendor from main- 
 taining an action for the purchase price. Mere knowledge of such 
 intended use will not preclude the vendor where he does not in any 
 manner participate in it.*''^ 
 
 ^'''Heineck v. Grosse, 99 111. App. ly, 18 R. I. 197, 30 Atl. 965. In 
 
 441. Ralston v. Boady, 20 Ga. 449, the 
 
 ^" Dyer v. Curtis, 72 Me. 181. court say: "There must be an 
 
 *" Dupas V. Wassell, 1 Dill. (U. agreement, express or implied, that 
 
 S.) 213, 8 Fed. Gas. No. 4182. the tenement should be used for an 
 
 *^^ Burke v. Tindale, 12 Misc. (N. unlawful purpose. And the bare 
 
 Y.) 31. proof of a knowledge that it might 
 
 "* Mayer v. Waters, 45 Kan. 78, and probably would be so used will 
 
 25 Pac. 212. not, perhaps, suffice. Some of the 
 
 "' Gibson v. Pearsall, 1 E. D. authorities I find, upon examina- 
 
 Smith (N. Y.) 90. tion, go to the full extent of holding 
 
 *" Updike V. Campbell, 4 E. D. that bare knowledge is suflScient. 
 
 Smith (N. Y.) 570; Taylor v. Levy, and that the criminal intent will be 
 
 (Md.) 24 Atl. 608; Almy v. Greene, inferred from the knowledge." 
 
 13 R. I. 350; Miller v. Maguire. 18 *" Kreiss v. Seligman, 8 Barb. (N. 
 
 R. I. 770, 30 Atl. 966; Allen v. Keil- Y.) 439; Dater v. Earl, 3 Gray
 
 151 ILLEGAL LEASES. [§ 123 
 
 Still a Canadian case should be noticed in which it was held that 
 mere knowledge on the part of the lessor of the illegal use to which 
 the premises are put will bar him in an action for the rent.^^^ 
 
 § 122. Use of premises for the purpose of prostitution. — Letting 
 a house to be used as a bawdy house has been held to be indictable at 
 common law, because the exciting, encouraging and aiding one to com- 
 mit a misdemeanor is of itself a misdemeanor.*^^ While the letting of 
 a house is in itself an innocent act, the purpose is not innocent in case 
 the party lets his house for the purpose of prostitution and knows 
 that it is useS accordingly. Keeping a bawdy house was an offense 
 at common law, and letting a house for such purpose must, therefore, 
 be a misdemeanor.*®" So it has been generally held that rent cannot 
 be recovered on a lease when the premises were let to be used for the 
 purpose of prostitution, even in the absence of any statute prohibit- 
 ing such traffic.*®^ In charging the lessor with knowledge of the use 
 to which the house is to be put, evidence of prior bad reputation of 
 the house is admissible. The lessor cannot say he has no knowledge 
 of that which is notorious in the neighborhood.*®^ It is necessary 
 for the defendant to prove ( 1 ) that the place was a house of ill-fame, 
 and, (2) that the plaintiff had knowledge of that fact when he made 
 the lease creating the tenancy. For this purpose evidence of the 
 reputation of the house both before and after the execution of the 
 lease is admissible. Evidence of acts tending to show the character 
 of the house could be given even though the plaintiff was not present 
 at the time the acts were committed.*®^ 
 
 In Illinois it is made an offense by statute to let a house for pur- 
 poses of prostitution and in consequence it is held with even greater 
 
 (Mass.) 482; Sortwell v. Hughes, 1 Chateau v. Singla, 114 Cal. 91, 45 
 
 Curt. (U. S.) 244, 22 Fed. Cas. No. Pac. 1015, 55 Am. St. 63; Dougherty 
 
 13177; Hill v. Spear, 50 N. H. 253; v. Seymour, 16 Col. 289, 26 Pac. 823; 
 
 Gaylord v. Soragen, 32 Vt. 110; Ernst v. Crosby, 140 N. Y. 364, 35 
 
 Aiken v. Blaisdell, 41 Vt. 655; N. E. 603; Egan v. Gordon, 65 Minn. 
 
 Green v. Collins, 3 Cliff. (U. S.) 494, 505, 68 N. W. 103; Ralston v. Boady, 
 
 10 Fed. Cas. No. 5755. 20 Ga. 449; Appleton v. Campbell, 2 
 
 *^« Vanbuskirk v. McNaughton, 34 C. & P. 347, 12 E. C. L. 609; Hun- 
 
 N. Bruns. 125. stock v. Palmer, 4 Tex. Civ. App. 
 
 "»Rex v. Philipps, 6 East 464. 459, 23 S. W. 294. 
 
 *** Commonwealth v. Harrington, *"- Demartini v. Anderson, 127 Cal. 
 
 3 Pick. (Mass.) 26. 33, 59 Pac. 207. 
 
 *"Ashbrook v. Dale, 27 Mo. App. «^ Egan v. Gordon, 65 Minn. 505, 
 
 649; Trobock v. Caro, 60 Cal. 304; 68 N. W. 103.
 
 §§ 123, 12-1] THE INSTRUMENT OF DEMISE. 152 
 
 reason that the lessor cannot recover rent under a lease for such 
 purposes.*®* 
 
 Where the guardian of a minor owning a leased dwelling house 
 knows that it is used solely for a house of prostitution, and continues 
 from month to month to rent it and permit such use such guardian 
 must be held to rent the property to be used as a house of prostitution 
 and is liable in damages to an adjacent proprietor. He may be en- 
 joined from continuing to permit such use.*^^ 
 
 § 123, Premises to be used for gambling. — Where a statute makes 
 it an offense punishable with a fine to let a house for the purpose of 
 a gambling resort, the taint of illegality attaches to the lease and the 
 lessor cannot recover the rent reserved on it.*®^ It seems also that the 
 same result follows from a statutory provision that gambling is unlaw- 
 ful without any specific provision that real estate shall not be let for 
 such a purpose.*^ ^ However, where betting and gambling was not pro- 
 hibited by the statute, but permitted by it under certain conditions, a 
 sale of the exclusive betting and gaming privileges at a race course was 
 not illegal, since the sale contemplated the exercise of the privilege in 
 a mode which was authorized by the statute.*^® A lease of a store 
 which, by the understanding of the parties, is to be used for the sale of 
 lottery tickets is void where the laws of the state render void every con- 
 tract made to further the lottery business.*®^ But where premises leased 
 for a clubroom are converted into a gambling house, the lessee is not 
 released from his contract in the absence of evidence that the lessor 
 knew the object for which the rooms were to be employed was differ- 
 ent from the one mentioned in the written lease.*^" 
 
 § 124. Setting up defense of illegality. — It is true that a tenant 
 cannot ordinarily deny the title of his landlord, which he admits in 
 the lease, or under which he receives possession. But no rule pre- 
 cludes either party from showing the illegality of the lease itself on 
 grounds of public policy. On such grounds, because of the disability 
 
 ^«* Fields V. Brown, 188 111. Ill, 6629; Gibson v. Pearsall, 1 E. D. 
 
 58 N. E. 977, reversing 89 111. App. Smith (N. Y.) 90; Updike v. Camp- 
 
 287. bell, 4 E. D. Smith (N. Y.) 570. 
 
 *»» Massan v. French, 61 Tex. 173. *^ Stratford Turf Assn. v. Fitch, 
 
 **» Harris v. McDonald, 79 111. App. 28 Ont. 579. 
 
 638; McDonald v. Tree, 69 111. App. ^''Edelmuth v. McGarren, 4 Daly 
 
 134. (N. Y.) 467, 45 How. Pr. 191. 
 
 «^ Stanley v. Chamberlin, 39 N. J. *^ Commagere v. Brown, 27 La, 
 
 Law 565; Holmead v. Maddox, 2 Ann. 314. 
 Cranch (C. C.) 161, 12 Fed. Gas. No. 
 
 \
 
 153 LEASES OBTAINED BY FRAUD. [§' 125 
 
 of the lessor not to afford protection to the lessee, the court refuses to 
 enforce a contract to do an illegal act, or one in which the consider- 
 ation is illegal, however the illegality may be made to appear in evi- 
 dence, receiving even oral testimony to determine the status of a writ- 
 ten contract in this respect.*^ ^ Wliere the parties to a lease intended 
 that the premises should be put to an illegal use, the lessor cannot 
 maintain an action for the rent reserved in the lease*^^ and he can- 
 not bring use and occupation for the value of the use of the prem- 
 ises.*^^ A bond given for the payment of rent reserved on a lease 
 executed by the parties with the intent that the premises shall be 
 used for an illegal purpose is equally illegal with the lease, and 
 no recovery can be had thereon.*^* The illegality may be shown 
 without regard to whether the contract is under seal or not. A 
 contract sealed or not sealed, though on its face honest and law- 
 ful may nevertheless be shown to be illegal and contrary to public 
 morals.*^^ That the lessee is in pari delicto with the lessor does not 
 deprive the lessee of the right to defend against the enforcement of 
 the provisions of a lease on the ground that the contract was in viola- 
 tion of a statute, since such a defense is allowed on grounds of public 
 policy and not for the benefit of the party presenting it.*^^ 
 
 A lease originally void for illegality because of the purpose for 
 which it was made, does not become valid by assignment of it by the 
 lessee.*" 
 
 VII. Leases Obtained by Fraud. 
 
 § 125. The rule that fraud in the making of a written agreement 
 may be shown by parol evidence, to change its legal effect, is too well 
 established to need any citation of authorities to sustain it. The evi- 
 dence, however, must be clear, precise and indubitable.*^^ In juris- 
 dictions where the distinction between law and equity is still pre- 
 
 "^Dyer v. Curtis, 72 Me. 181. ^"'^ Ryan v. Potwin, 60 111. App. 
 
 ^"2 Sherman v. Wilder, 106 Mass. 637. 
 
 537; Mound v. Barker, 71 Vt. 253, «« Fields v. Brown, 188 111. Ill, 
 
 44 Atl. 346; Holmead v. Maddox, 2 58 N. E. 977, reversing 89 111. App. 
 
 Cranch. (C. C.) 161, 12 Fed. Cas. 287. 
 
 No. 6629; Simpson v. Wood, 105 "'Sherman v. Wilder, 106 Mass. 
 
 Mass. 263; Smith v. White, L. R. 1 537. 
 
 Eq. 626. *=8^olfe v. Arrott, 109 Pa. St. 
 
 "'Ashbrook v. Dale, 27 Mo. App. 473, 1 Atl. 333; Sisson v. Kaper, 105 
 
 649. Iowa 599, 75 N. W. 490. 
 
 *»* Mound v. Barker, 71 Vt. 253, 44 
 Atl. 346.
 
 § 126] THE IXSTRUilEXT OF DEMISE. 154 
 
 served, if a trial be at law, fraud in the execution of a deed may be 
 given in evidence; as that, through misreading, or the substitution of 
 one paper for another, or by other device or trickery, the obligor was 
 induced to seal it, believing, at the time, that he was sealing some- 
 thing else ; and it may also be proved that what purports to be a deed 
 is, in truth, not a deed, but a forged instrument; but in a tribunal 
 without equity powers it cannot be proved that the transactions which 
 preceded and induced the execution of the deed were fraudulent. 
 Wliere a party knowingly and voluntarily signs a deed, although he 
 be induced thereto by the fraudulent contrivances of others, yet if it 
 be such, upon its face, as will convey title, it can only be impeached 
 and set aside, and parol evidence received for that purpose, in a court 
 of equity.*®^ So it has been held that a lease under seal can only be 
 defeated in a court of law by showing fraud in its execution whereby 
 a party was induced to sign something he did not intend to sign. 
 When a party knowingly and voluntarily executes a deed, even though 
 it be by a fraudulent contrivance, it cannot be impeached and set 
 aside in a court of law.^"" A bill in equity to cancel the lease would 
 be a proper remedy where fraud in its procurement can be shown. But 
 the right to the possession of land will not be changed and affected 
 by a preliminary order granted on an ex 'parte application. For in 
 that way the complainant would be given the fruits of a final decree 
 in his favor. A court of chancery has no more power than any other 
 to condemn a man unheard, and to dispossess him of property yrima 
 facie his, and hand over its enjoyment to another on an ex parte 
 claim.^**^ In several cases it has been decided that possession of lands 
 is not to be disturbed by means of a preliminary injunction.^"^ When 
 there has been a premature adjudication of the merits of a con- 
 troversy, the party injured by it may appeal as from a final order.^"^ 
 
 § 126. Rescission of lease and defense of action for rent. — Where 
 a landlord by artifice prevents a tenant from discovering defects in 
 the leased premises and fraudulently misrepresents their condition, 
 
 4Mj^gj,j. 0^ Fraud and Mistake ^"^ Arnold»v. Bright, 41 Mich. 207, 
 
 (Bump's Ed.) 332; Story's Eq. Jur. 2 N. W. 1(5. 
 
 (6th Ed.), § 437; Taylor v. King, 6 =^<^ Hemingway v. Preston, Walk. 
 Munf. (Va.) 358, 8 Am. Dec. 748, Ch. (Mich.) 528; People v. Simon- 
 note; Chapin v. Billings, 91 111. 539; son, 10 Mich. 335. 
 Equitable Trust Co. v. Fisher, 106 ="' Barry v, Briggs, 22 Mich. 201; 
 111. 189. Lewis v. Campau, 14 Mich. 458; 
 
 '""Resser v. Corwin, 72 111. App. Taylor v. Sweet, 40 Mich. 736. 
 625. 
 
 i
 
 155 LEASES OBTAINED BY FRAUD. [§ 126 
 
 the tenant is entitled to rescind the lease, vacate the premises and 
 defend an action based on a claim for rent under it.^"* That a lessee 
 was induced to accept a lease by fraudulent representations on the 
 part of the lessor as to a material point in the construction of the 
 demised premises is a good defense to an action for rent.^*'^ This 
 defense goes to the original execution and validity of the lease and 
 the covenants to pay rent. If consent to it was obtained by fraud, 
 then it was not such real and free consent as to give it validity. The 
 false statement must be of some matter which is an essential ele- 
 ment in the agreement which goes to the substance of it and upon 
 which the consent was based. If it be of this material character, 
 then there is no mutual consent to the contract, and the party de- 
 ceived may rescind, provided he does it on discovery of the fraud and 
 returns to the other party everything of value which, he has re- 
 ceived under it. If the contract has been fully executed on both 
 sides and the party injured cannot restore the other to his previous 
 condition, the only remedy at law is by action for deceit or by re- 
 coupment of damages. The mere possession of property which was 
 the subject-matter of the contract will not take away the right of 
 rescission if possession is surrendered as soon as the fraud is dis- 
 covered.^*'^ In one case a lessee occupied the premises a year before 
 rescinding the lease on the ground of fraudulent representation re- 
 garding the income from the property. Such action was early enough 
 to be effective. The lessee could not come to a full and certain 
 knowledge of what would be the amount of business or of profits 
 yearly till the end of the year ; and he could not be justly regarded as 
 voluntarily confirming a contract believed to be fraudulent, because 
 he did not repudiate it at an earlier period upon a violent presump- 
 tion of fraud, instead of waiting till the close of the year when it 
 would become so certain that it could be clearly proved.^"^ However, 
 a delay of fourteen months before vacating land because it was liable 
 
 =>"* Haines v. Downey, 86 111. App. Wise, 132 N. Y. 306, 30 N. E. 837; 
 
 373; Blake v. Ranous, 25 111. App. Haines v. Downey, 86 111. App. 373; 
 
 486; Sisson v. Kaper, 105 Iowa 599, Wolfe v. Arrott, 109 Pa. St. 473, 1 
 
 75 N. W. 490; Rand &c. Co. v. Wick- Atl. 333 
 
 ham, 60 Mo. App. 44; Morris v. ="' Milliken v. Thorndike, 103 
 
 Shakespeare (Pa.), 12 Atl. 414. Mass. 382, in the words of Judge 
 
 '^"'^ Milliken v. Thorndike, 103 Colt. Kiernan v. Terry, 26 Ore. 
 
 Mass. 382; Irving v. Thomas, 18 494, 38 Pac. 671; Whitney v. Al- 
 
 Me. 418; Pry v. Day, 97 Ind. 348; laire, 4 Denio (N. Y.) 554; Daly v. 
 
 Barr v. Kimball, 43 Neb. 766, 62 N. Wise, 132 N. Y. 306, 30 N. E. 837. 
 
 W. 196; Dennison v. Grove, 52 N. '"Urving v. Thomas, 18 Me. 418. 
 J. Law 144, 19 Atl. 186; Daly v.
 
 § 127] THE INSTRUMENT OF DEMISE. 156 
 
 to overflow barred the lessee's rights. He had ample means of as- 
 certaining the character of the land and its liability to overflow be- 
 fore he took possession. If he desired to rescind he should have done 
 so within a reasonable time, and not have waited till a time which was 
 certainly unreasonable.^**® So, where a lessee continued to occupy 
 premises for eighteen months after discovering fraud in the state- 
 ment in regard to their condition he could not disafiirm the contract 
 on that ground.^ "'^ And a delay of sixteen years on the part of a 
 lessee to object to a lease on the ground that it was obtained by 
 fraud would defeat his right to set up such an objection after that 
 time.^^** The lessee is deemed to affirm the lease if after discovering 
 the fraud he continues to occupy the land, and makes no attempt to 
 rescind.^ ^^ So where the lessee left the premises and then returned 
 to them after a temporary absence, he was precluded from subse- 
 quently rescinding the lease on the ground of alleged fraud.^^^ 
 
 When a person in possession of land has by fraud been induced to 
 accept a lease of it from one not the owner, such lease cannot be set 
 up to create an estoppel against the defrauded tenant to deny his 
 tenant's title.^^^ 
 
 The waiver of a right to rescind a lease on the ground of a fraudu- 
 lent representation in regard to the premises is a sufficient considera- 
 tion for an undertaking by the lessor to remedy a defect. Under such 
 circumstances the lessee has a well recognized right to rescind which 
 he foregoes in reliance on the lessor's promise to set the matter right, 
 and to allow the lessor to escape the binding force of such promise 
 would be rank injustice to the lessee.^^* 
 
 § 127. In Missouri the doctrine is that the defense of fraud to a 
 demand at law, as in case of a demand for rent under a lease, is 
 triable by jury, even though the defense concludes with a prayer for 
 the cancellation of the instrument sued on, as that can be rejected as 
 surplusage.^^^ By the Missouri statute actions for the recovery of 
 money only are triable by jury, and a suit for rent seeks the recovery 
 
 ""'Resser v. Corwin, 72 111. App. "= Blake v. Dick, 15 Mont. 236, 38 
 
 625. Pac. 1072. 
 
 '•*Bell V. Baker, 43 Minn. 86, 44 "'Johnson v. Chely, 43 Cal. 299; 
 
 N. W. 676. McDevitt v. Sullivan, 8 Cal. 592; 
 
 ""Campau v. Lafferty, 50 Mich. Peralta v. Ginochio, 47 Cal. 459. 
 
 114, 15 N. W. 40; Lynch v. Sauer, "* Sisson v. Kaper, 105 Iowa 599, 
 
 16 Misc. R. (N. Y.) 1. 75 N. W. 490. 
 
 ^'^Herrin v. Libbey, 36 Me. 350; "= Rand &c. Co. v. Wickham, 60 
 
 Kiernan v. Terry, 26 Ore. 494, 38 Mo. App. 44. 
 Pac. 671.
 
 157 LEASES OBTAINED BY FRAUD. [§ 128 
 
 of money. Besides, it has been repeatedly decided in that state that 
 the defense of fraud against a legal demand is triable by jury,^^® and 
 that, even where an equitable defense is interposed, the right of trial 
 by jury still remains.^" The mere fact that the answer concludes 
 with a prayer for the cancellation of the lease, can make no difference. 
 That is not the main relief asked by the defendant, but mere ancillary 
 relief. It is only where matters of law and equity are so blended that 
 the case could not properly be tried by a jury, that the action is 
 triable by the chancellor.^^^ 
 
 § 128. Election of remedies. — Upon discovering a fraudulent rep- 
 resentation after accepting a lease and entering into possession of the 
 premises, a lessee is not compelled to give up the premises and rescind 
 the lease, but in an action against him for rent may set up his damages 
 from such fraudulent representations.^^^ The lessee has this election 
 of remedies or courses to pursue. He may recoup in damages when 
 sued for rent; or if he has fully paid the rent he may recover the 
 damages in an action instituted for that purpose, or on discovering 
 
 the falsity of the representations he may rescind the contract of 
 
 lease.^20 
 
 In some western states it has been held to be the rule that where 
 a contract of lease was vitiated by fraud on the part of the lessor, the 
 lessee had his election either to abandon the lease entirely or to hold 
 on for the term at what the premises were reasonably worth.^^^ 
 But the better view seems to be that until the lessee elects to re- 
 scind he holds under the agreement and on the terms expressed in 
 it, even though he was induced to enter into it by fraud. The dam- 
 ages sustained by reason of the deceit would go to diminish the amount 
 recovered under the agreement, and if they exceeded the rent reserved, 
 the verdict would be for the defendant.^^^ The same principle holds 
 true of a lease under seal.^^^ Until rescission recovery would be on 
 
 ™ Kitchen v. Cape Girardeau &c. N. W. 196; Herrin v. Libbey, 36 
 
 R. Co., 59 Mo. 514; Earl v. Hart, Me. 350. 
 
 89 Mo. 263, 1 S. W. 238. "» Barr v. Kimball, 43 Neb. 766, 
 
 =" Wolff V. Schaeffer, 4 Mo. App. 62 N. W. 196. 
 
 367, s. c. 74 Mo. 154. »=i Mitchell v. Zimmerman, 4 Tex. 
 
 ™Kortjohn v. Seimers, 29 Mo. 75. See also, Blackman v. Kessler, 
 
 271; Allen v. Logan, 96 Mo. 591, 10 110 Iowa 140, 81 N. W. 185. 
 
 S. W. 149. =>" Hall V. Ryder, 152 Mass. 528, 
 
 "*Dennison v. Grove, 52 N. J. 25 N. E. 970. 
 
 Law 144; 19 Atl. 186; Pryor v. Fos- "^^ Herrin v. Libbey, 36 Me. 350; 
 
 ter, 130 N. Y. 171, 29 N. E. 123; McCarty v. Ely, 4 E. D. Smith (N. 
 
 Barr v. Kimball, 43 Neb. 766, 62 Y.) 375; Carhart v. Ryder, 11 Daly
 
 §■ 129] THE IXSTRUMEXT OF DEMISE. 158 
 
 the lease, subject to possible reductions by way of counter-claim or 
 set-off in jurisdictions where the doctrine of counter-claim is in force. 
 
 In Illinois the doctrine is that if the lessees desire to rescind on 
 account of fraud, it is their duty to do so promptly when they dis- 
 cover it. Failing to do so they elect to continue the lease in force 
 and are liable on the covenants, and must be remitted to their remedy, 
 if any they have, by action for deceit or by bill in equity.^-* A lessor 
 in that jurisdiction is not, however, estopped to impeach the lease 
 as for fraud on the part of the lessee because he has accepted rent 
 where he did so without knowledge of the fraud.^^^ 
 
 Wliere a lessee is entitled to obtain a renewal on payment of a sum 
 equivalent to the best offer the owner obtains for the premises and is 
 forced to pay more than he should by the false allegation of a large 
 offer, the lessee is entitled to recover back the sum beyond the highest 
 bona fide offer which the lessor received.^^® So, a misrepresentation 
 as to a former rental can be set up as a defense in an action for rent, 
 and the actual amount of the former rental only can be recovered.^-^ 
 
 § 129. What constitutes fraud. — A representation which merely 
 amounts to a statement of opinion, judgment or expectation, or is 
 vague, and indefinite in its nature and terms, or is merely a loose 
 conjectural or exaggerated statement, is not sufficient to justify 
 rescission.^^® The same is true where the proof fails to show that 
 the representations were false or were made with a fraudulent in- 
 tent to induce the defendant to lease the premises.^^^ It is es- 
 sential that the lessee should have entered into the contract in 
 reliance on the false representations.^^** Alleged representations 
 of a lessor as to the amount that certain crops would produce 
 are a matter of opinion and cannot be regarded as fraudulent. 
 A fraudulent representation as to the number of acres in a field 
 is proper matter of counter-claim to reduce the stipulated rent; but 
 if there is no allegation of damage by reason of the representations, 
 the fraud is no defense.^^^ It is the duty of every person, in transact- 
 ing business, to use ordinary care and prudence, and whether a 
 
 (N. Y.) 101; Wallace v. Lent, 1 "'Powell v. F. C. Llnde Co., 49 
 
 Daly (N. Y.) 481. N. Y. App. Div. 286, 64 N. Y. S. 153. 
 
 ==^ Little V. Dyer, 35 111. App. 85; =>=« Buschman v. Codd, 52 Md. 202, 
 
 McCoull V. Herzberg, 33 111. App. 207. 
 
 542; Johnson v. Wilson, 33 111. App. ==* Lewis v. Clark, 86 Md. 327, 37 
 
 639. Atl. 1035. 
 
 '^United Order &c. v. Fitzgerald, "» Slyfield v. Cordingly, 72 Iowa 
 
 59 111. App. 362. 762, 34 N, W. 602. 
 
 "^Guffey V. Clever, 146 Pa. St. '^^ Holton v. Noble, 83 Cal. 7, 23 
 
 548, 23 Atl. 161. Pac. 58.
 
 159 COLLATERAL PAROL AGREEMENT. [§ 130 
 
 lessee acted with due care and prudence in relying on the statement of 
 an agent of the lessor in regard to the number of acres under cultiva- 
 tion is a question for the jury and not for the court.^^^ 
 
 Misrepresenting the legal effect of an instrument is not fraud when 
 the defrauded party could or did read the instrument. So the fact 
 that a signature to a lease was obtained by stating it to be a mere re- 
 ceipt in effect and legal import did not invalidate the lease.^^^ A 
 title under a lease is not defeated by fraud which is admittedly col- 
 lateral to the demise. A lessor could not cancel a demise on the ground 
 that the lessee falsely represented that he intended to put the premises 
 to a lawful use when in fact he intended to use them for a brothel. ^^* 
 In accordance with the general principles of the rule of caveat emptor, 
 which governs the liability for the condition of premises, a tenant is 
 bound to inquire as to the means of access to leased land ; and it does 
 not constitute fraud on the part of the landlord, in the absence of mis- 
 representations, to lease property to which there is no means of 
 access. ^^^ 
 
 The general rule that a fraudulent alteration of an instrument for- 
 feits the rights of the holder does not apply to an indenture of lease 
 executed in duplicate. An alteration of the counterpart retained by 
 one party without the knowledge or consent of the other would not 
 change the legal effect of the instrument. Furthermore, it does not 
 affect the rights of the party making the alteration under the con- 
 tract actually made by the parties, for the lease being executed in 
 duplicate, there were two leases, and both were originals. Although 
 the alteration of one annulled that, the lease retained by the other was 
 sufficient to sustain the contract of the parties.^^^ 
 
 VIII. Collateral Parol Agreement. 
 
 § 130. "Contracts, if a statute does not intervene, may be ex- 
 pressed partly in writing and partly by parol. If the writing does 
 not purport to set out the entire contract, if it purports to set out 
 only the part of the contract which is obligatory on the party making 
 it, there is no just objection to parol evidence of the distinct and 
 separable parts of the contract, not reduced to writing, obligatory 
 
 "= Ladner v. Balsley, 103 Iowa "' Handrahan v. O'Regan, 45 Iowa 
 
 674, 72 N. W. 787; Longshore v. 298. 
 
 Jack, 30 Iowa 298; Gee v. Moss, 68 «3« Jones v. Hoard, 59 Ark. 42, 26 
 
 Iowa 318, 27 N. W. 268. S. W. 193; Lewis v. Payn, 8 Cow. 
 
 633 Fry V. Day, 97 Ind. 348. (N. Y.) 71. 
 
 "'* Feret v. Hill, 15 C. B. 207.
 
 § 131] THE INSTRUMENT OF DEMISE. 160 
 
 upon the other party."^^'^ On the same principle where a contract of 
 lease, which would be valid if by parol, has been reduced to writing, 
 a term of the contract which has been omitted from the writing may 
 be supplied by parol evidence; as where the length of the holding is 
 not stated, and oral testimony is received as to the duration of the 
 term agreed upon. This testimony goes to supply an obvious omis- 
 sion.^^* But if a lease is complete in all its terms, the general rule is 
 inflexible that it cannot be varied by parol evidence; and even where 
 there is an obvious omission in an instrument, parol evidence to supply 
 the omission is generally inadmissible because of the requirement for 
 a written instrument to satisfy the statute of frauds. Yet under cer- 
 tain circumstances a collateral jDarol contract between parties to a 
 written lease may exist concurrently with the lease.^^^ To be binding 
 such a contract must not come within the prohibition of the statute 
 of frauds; it must be supported by an adequate consideration, and it 
 must, furthermore, be sufficiently collateral to the subject-matter 
 covered in the written lease so that the presumption would not apply 
 that all previous oral negotiations had been merged in the written 
 instrument as executed. For the general rule is well settled that a 
 written lease having been executed, it must, in the absence of fraud or 
 mistake, be deemed to embody the final determination of the parties.^*" 
 
 § 131. Compliance with statute of frauds. — When an attempt is 
 made to enforce an oral agreement collateral to a lease, the first in- 
 quiry is whether such agreement is within the statute of frauds. 
 Thus, an agreement by the landlord to allow tenant to remove all 
 temporary improvements he may erect might be valid although not in 
 writing, and for that reason, the further question as to whether it 
 would be merged in the written instrument becomes important.^*^ 
 An agreement outside the lease that a building to be erected shall 
 be the personal property of the lessee is not in contradiction of the 
 terms of a written lease which is silent on the topic of improvements. 
 A covenant that, at the termination of the lease, the lessee shall de- 
 liver up the premises in as good order and condition as they then 
 
 ''^ Vandegrif t v. Abbott, 75 Ala. v. Dobson, 78 N. Y. 74; Erskine v. 
 
 487, 490, per Brickell, C. J. Adeane, L. R. 8 Ch. App. 756. But 
 
 =38 Reynolds v. Davison, 34 Md. see Naumberg v. Young, 44 N. J. 
 
 662. Law 331. 
 
 °=»Graffam v. Pierce, 143 Mass. ""Abbott v. 76 Land &c. Co., 101 
 
 386, 9 N. E. 819; Morgan v. Griffith, Cal. 567, 36 Pac. 1. 
 
 L. R. 6 Exch. 70; Welz v. Rhodius, "^ Powell v. McAshan, 28 Mo. 70. 
 87 Ind. 1, 44 Am. R. 747; Chapin 
 
 I
 
 161 COLLATERAL PAROL AGREEMENT. [§ 133 
 
 were or should be put into by the lessor is not inconsistent with such 
 an agreement. There is nothing which requires such an agreement 
 to be in writing, and evidence tending to prove such an agreement is 
 therefore admissible.^^^ Where some of the stipulations in a contract 
 are within the statute of frauds and others are not, if those which are 
 within it have been performed, an action lies upon the other stipu- 
 lations, if they are separate. ^*^ A promise to put in a new floor in 
 connection with a general agreement to lease is a promise in its nature 
 separable from the rest of the contract, and a promise -to do something 
 after the execution of the lease, and it relates to something distinct 
 from anything contained in the lease. As the original contract was 
 oral, the rule that no oral evidence of prior or contemporaneous agree- 
 ments can be received to add to or vary the terms of a written con- 
 tract has not its usual application. But as the performance of the 
 oral contract consisted in part in the delivery of written contracts, 
 if these contracts contained stipulations relating to the subject of the 
 alleged promise, no prior or contemporaneous oral promise incon- 
 sistent with their terms could be received in evidence; nor could 
 evidence of any prior or contemporaneous oral promise be received if 
 the written contracts delivered appeared to contain all the engage- 
 ments of the parties on the subject, or to have been intended as a com- 
 plete statement or performance of the whole contract. The case at 
 bar, however, is clearly within the cases where oral evidence of a col- 
 lateral separate agreement has been received.^** 
 
 It is not permissible to set up a parol agreement made the day a 
 lease for a year was given, but entered into after it had been executed, 
 to vary the terms of the lease and show that the term was to continue 
 till certain affairs were settled. Such an agreement is within the 
 statute of frauds.^*^ But the principle seems to be established that 
 a modification by parol of a written lease having less than a year to 
 run is not within the statute of frauds.^*'' 
 
 § 132. Not only must the agreement stand the test of the statute 
 of frauds, but it must be collateral to the lease. Where a written 
 
 "= Ryder v. Faxon, 171 Mass. 206, v. Dooley, 119 Mass. 294; McCor- 
 
 50 N. E. 631. mick v. Cheevers, 124 Mass. 262; 
 
 "'Trowbridge v. Wetherbee, 11 Chapin v. Dobson, 78 N. Y. 74; 
 
 Allen (Mass.) 361; Page v. Monks, Eighmie v. Taylor, 98 N. Y. 288. 
 
 5 Gray (Mass.) 492; Lowman v. °" Wheeler v. Cowan, 25 Me. 283. 
 
 Sheets, 124 Ind. 416, 24 N. E. 351. "" Doherty v. Doe, 18 Colo. 456, 
 
 ^"Graffam v. Pierce, 143 Mass. 33 Pac. 165; Smith v. Devlin, 23 N. 
 
 386, 9 N. E. 819; Rennell v. Kim- Y. 363. 
 ball, 5 Allen (Mass.) 356, 364; Carr 
 
 Jones L. & T.— 11
 
 § 132] THE IXSTKUMEXT OF DEMISE. 162 
 
 lease is perfect and does not indicate that it is to be performed other 
 than as it is written, all antecedent oral agreements on the subject are 
 merged in the writing,^*^ "A lease is, in itself, a contract pre- 
 scribing the rights, duties and liabilities of the lessor and lessee, and 
 when made pursuant to precedent negotiations is, in legal contempla- 
 tion, the consummation of all preliminary propositions and agreements. 
 It takes up all preceding negotiations and gives expression to the con- 
 tract of the parties as finally consummated, and in absence of fraud 
 or mistake, furnishes controlling evidence of the terms and conditions 
 upon which the property is demised."^*® So a temporary practice 
 permitting lessees to enter upon the demised premises through a 
 lower tenement did not give them a right to continue so to enter, for 
 the writing was presumed to express the entire agreement of the 
 parties.^*^ A parol agreement to abate rent in case of destruction by 
 fire could not be set up to modify a written instrument. A general 
 covenant to pay rent was adequate to govern the rights of the parties 
 and bound the lessee to pay rent even though the premises were de- 
 stroyed by fire.^^*' It cannot be shown by parol evidence that an in- 
 strument in the form of a lease was intended as an assignment of an 
 unexpired leasehold interest. Parol evidence is not admissible to show 
 that the contract was different from that stated in the writing or was 
 a contract to assign a lease instead of a contract to lease the premises 
 described.^^^ The contract expressed by the written instrument is the 
 one adopted by the parties no matter what different stipulations they 
 had under consideration during the negotiations. All topics covered 
 by the written lease are presumed to be covered fully, and additional 
 or contradictory terms under discussion during the making of the 
 bargain do not constitute a part of the contract as finally adopted. ^^^ 
 Such a presumption has been applied to an oral stipulation in regard 
 to a further term after the end of a lease. The lease fixed the time 
 for the continuation of the term, and any agreement for a further 
 
 "' Kelly v. Chicago &c. R. Co., 93 "» Stafford v. Staunton, 88 Ga. 298, 
 
 Iowa 436, 61 N. W. 957; Steubben 14 S. E. 479. 
 
 V. Granger, 63 Mich. 306, 29 N. W. "'Gardner v. Hazelton, 121 Mass. 
 
 716; Stevens v. Haskell, 70 Me. 202; 494. 
 
 Abbott v. 76 Land &c. Co., 101 Cal. '^^ Snyder v. County Com'rs, 8 
 
 567, 36 Pac. 1; Averill v. Sawyer, Colo. 377, 8 Pac. 917; Randolph v. 
 
 62 Conn. 560, 27 Atl. 73. Helps, 9 Colo. 29, 10 Pac. 245; Wil- 
 
 "'Phillbrook v. Emswiler, 92 Ind. gus v. Whitehead, 89 Pa. St. 131; 
 
 590. Lerch v. Sioux City Times Co., 91 
 
 "'Ward V. Robertson, 77 Iowa Iowa 750, 60 N. W. 611; Brigham 
 
 159, 41 N. W. 603. v. Rogers, 17 Mass. 571.
 
 163 COLLATERAL PAROL AGREEMENT. [§ 133 
 
 holding was repugnant to the lease.^^^ A factory with boiler and 
 engine was leased without express covenants as to the capacity of the 
 engine ; it was held that there was no implied covenant that the boiler 
 was capable of doing a work for which the factory was rented and oral 
 testimony was inadmissible to prove that during the negotiations the 
 landlord guaranteed the engine and boiler were in thorough repair.^^* 
 The basis of this rule of presumption is that the oral negotiations 
 never were a part of the contract; and therefore the principle would 
 not apply in case the preceding agreement is in writing. So, where 
 an agreement under seal besides a covenant for a lease, contained, 
 certain independent stipulations, obviously not intended to be included 
 in the lease but obligatory in praesenti, it was held that the latter were 
 not merged in or superseded by the lease when executed. The stipula- 
 tions in respect to the lease were not the sole purpose of the contract, 
 and other provisions therein, including that in respect to the party 
 wall, were clearly independent, and intended to survive the execution 
 of the lease. It was competent for the parties to provide how the 
 ■ cost of a party wall should be paid, and to make the covenant to pay 
 therefor a mere personal covenant with the covenantee and severable 
 from his ownership of the land. This was clearly the intention of the 
 parties as gathered from the language of the contract.^^^ 
 
 § 133. On the question what agreements are collateral there is a 
 wide divergence of judicial opinion and no general rule can be laid 
 down to govern all cases. Where the lease is silent in regard to re- 
 pairs, the landlord's oral agreement to put the premises in repair 
 before the commencement of the term can fairly be said to be col- 
 lateral to the lease, as such an agreement creates an immediate, not 
 a continuing liability. If the landlord does his duty it is functus 
 ofjicio before the term begins to run. It is widely different from an 
 undertaking to keep the premises in repair during the continuance 
 of the lease, for that would create a continuing liability and change 
 the effect of the contract as expressed in the written instrument.^^^ 
 In regard to such a case, Brett, J., said: "This agreement was 
 verbally arrived at before the execution of the lease in writing and 
 before the entry of the plaintiff pursuant to the demise. It did not 
 
 ^" Keegan v. Kinnaire, 12 111. App. '"''" Graffam v. Pierce, 143 Mass. 
 
 484. 386, 9 N. E. 819; Mann v. Nunn, 43 
 
 '"Naumberg v. Young, 44 N. J. L. J. C. P. (N. S.) 241; Clenighan 
 
 Law 331. v. McFarland. 16 Daly (N. Y.) 402. 
 
 ^'^Pillsbury v, Morris, 54 Minn. Compare Weil v. Kahn, 16 Daly (N. 
 
 492, 56 N. W. 170. Y.) 286.
 
 133] THE INSTRUMENT OF DEMISE. 164 
 
 relate to things to be done from time to time during the term, but 
 it was an independent verbal undertaking,"^^" But if the subject of 
 repairs is mentioned at all in the lease, the topic of repairing is no 
 longer a collateral niatter and the presumption would apply that all 
 previous negotiations and stipulations as to repairs are merged in 
 the written instrument when it is executed. Thus, where a lessee 
 agreed to make repairs without specifying when they should be made, 
 he has till the end of the lease to make them, and a verbal agreement 
 to make the repairs sooner is inconsistent with the written contract 
 and therefore does not come within the exception to the general rule 
 that parol evidence is admissible to establish an additional consistent 
 agreement. The fact that the time is fixed by law and not by express 
 contract does not afEect the rule of admissibility.^^® And in a case 
 where a written lease was silent on the question of assignment, it was 
 held that evidence of a parol agreement not to assign was inadmissible 
 because the legal implications and incidents of a lease should be re- 
 garded as written out and incorporated in it. If this were done there 
 would then be an express stipulation that the lessee might assign his 
 term to whomsoever he pleased.^^^ 
 
 But although an agreement to make improvements does not differ 
 materially from one to repair, an attempt to defend an action for rent 
 under a written lease on the ground of a breach by the lessor of his 
 collateral parol agreement to make improvements was not allowed. 
 Such a defense was held improper because it sought to change a writ- 
 ten contract by a parol contract previously made.^^" A similar ques- 
 tion arose in Connecticut on a collateral parol promise to improve 
 t\ie entrance of a leased store within a year. There had been a pre- 
 liminary written agreement for a lease and a similar promise by parol. 
 When the time for the execution of the lease arrived, the improve- 
 ments had not been made and the lessee refused to sign the lease. 
 Thereupon the lessor renewed his promise to make the improvements 
 Hnd the lease was executed. The court held that evidence of the parol 
 promise could not be received. The ground for their decision was 
 that even if the parol agreement could be considered collateral to the 
 Lease, it could not be considered collateral to the previous written 
 agreement.^®^ The Illinois court refused to enforce a parol agree- 
 
 "' Mann v. Nunn, 43 L. J. C. P. "" Welshbillig v. Dienhart, 65 Ind. 
 
 (N. S.) 241. 94. 
 
 "■^Colhoun V. "Wilson, 27 Gratt. ""^Averill v. Sawyer. 62 Conn. 
 
 (Va.) 639. 560, 27 Atl. 73. Judge Carpenter 
 
 '**Nave v. Berry, 22 Ala. 382. dissented, stating his grounds as
 
 1(55 COLLATERAL PAROL AGREEMENT. [^ 133 
 
 ment by the lessor to supply water to the demised premises. Tlie 
 lease itself contained covenants on the part of the lessor to repair 
 fences and furnish wood for fuel. The parol agreement as to water 
 added an additional stipulation to the lease and was not in regard to 
 a collateral matter. Furthermore such an agreement was within the 
 prohibition of the statute of frauds because it required a continuing 
 act and it did not alter this result that pipes might be laid which 
 would furnish a constant supply of water without further acts on the 
 part of the lessor.^*^- 
 
 The rule best suited to explain the decided cases in the United 
 States is to make the test the time when the landlord's undertaking is 
 to be performed. The collateral parol agreement cannot be enforced 
 when it is not to put the premises in a certain condition previous to 
 leasing or before the time fixed for the commencement of the term, 
 but to do so at some indefinite time during the term. In one case the 
 alleged parol agreement was to put water and gas into the leased 
 building as soon as the mains were completed. The court said : "The 
 intention was to let the premises, and they were let, just as they were, 
 without the water or gas. The agreement referred to something to " 
 be done by the lessor during the tenancy in respect to the subject- 
 matter of the lease, and as one of the considerations for the covenants 
 in it on the part of the lessee, — as much so as any covenants on the 
 part of a lessor usually inserted in leases. It is not collateral to the 
 matter of leasing any more than would be a promise or covenant to 
 keep in repair. It is to be presumed that the parties inserted in the 
 lease all the covenants and promises on both sides and that what is 
 not in it was purposely omitted. * * *"^*'^ 
 
 follows: "Nor can I agree that the such a contract . . . there can 
 lease excludes the evidence. The be no question about the considera- 
 contract had no reference to the tion. There was a matter in dis- 
 terms of the lease, although it did pute between the parties. No mat- 
 refer to the premises leased. It ter now which was right. It is 
 was not a stipulation to be em- enough for our present purpose 
 braced as a covenant in the lease, that the plaintiffs yielded the point 
 but was so far independent of it and promised that if the defendant 
 that it might legally exist contem- would sign the lease the thing that 
 poraneously with it and collateral he contended for should be done, 
 to it. If the plaintiffs had also He did so. The consideration for 
 agreed to trade with the defendant that promise, and its validity and 
 at the store to the amount of $1,000 effect, ought, it seems to me, to be 
 during the first year, the two con- beyond all question." 
 tracts would have stood upon pre- ^"^ Cooney v. Murray, 45 111. App. 
 cisely the same footing. Surely it 463. 
 
 will not be contended that the lease '"' McLean v. Nicol, 43 Minn. 169, 
 
 would exclude parol evidence of 45 N. W. 15, per Gilfillian, J.
 
 134, 135] 
 
 THE INSTRUMENT OF DEMISE. 
 
 1G6 
 
 § 134. In England the courts have gone a great ways in holding 
 that agreements were collateral to a lease. A lease in one case re- 
 served to the lessor the right of hunting on the premises and bound 
 the tenant to use his best endeavors to preserve the game. Owing 
 to the fact that the place was overrun with rabbits the tenant refused 
 to sign the lease without the lessor's agreement that they would be 
 exterminated. The lessor refused to put such an agreement in the 
 lease, but promised faithfully that the rabbits should be destroyed 
 and the tenant signed the lease. Although it had been held that rab- 
 bits could be included under a general description of game/*'* the 
 court held that the undertaking to kill them off was collateral to the 
 matters covered by the lease and could be enforced as a collateral parol 
 agreement. It did not contain any terms which conflicted with the 
 written document.^^^ 
 
 § 135. A subsequent agreement reducing rent made during the 
 continuance of a written lease under seal is open to the objections that 
 it is without consideration and that it operates to change a sealed 
 contract by parol agreement. Thus, an agreement by a lessor to make 
 
 ''"Jeffryes v. Evans, 19 C. B. (N. 
 S.) 346, 34 L. J. (C. P.) 261. 
 
 505 Morgan v. Griffith, L. R. 6 
 Exch. 70; Erskine v. Adeane, L. R. 
 8 Ch. App. 756. These English de- 
 cisions have been severely criticized 
 by Justice Depue in the case of 
 Naumberg v. Young, 44 N. J. Law 
 331. He said: "Morgan v. Griffith 
 was decided upon little considera- 
 tion. The ground of decision was 
 that the verbal agreement was col- 
 lateral to the lease, and did not af- 
 )ect the mode of enjoyment of the 
 land demised. Erskine v. Adeane, 
 was decided by two equity judges on 
 the authority of Morgan v. Griffith, 
 reversing the decision of Lord 
 RomiUv, M. R., who had excluded 
 the evidence, for the reason that the 
 alleged agreement was not a distinct 
 agreement but an alteration of the 
 o.?iginal terms of agreement, and, to 
 be binding, should have been insert- 
 ed in the lease. ... It must be 
 borne in mind that we are not deal- 
 ing with the question as to what 
 
 promises and undertakings between 
 the parties may, in themselves, be 
 considered collateral or conditional 
 the one to the other, but with the 
 salutory rule of evidence that the 
 written agreement shall be the only 
 exponent of the contract, as finally 
 concluded between the parties, and 
 that proof by oral testimony of 
 what was said or done during the 
 negotiations shall not be received, 
 either to contradict the written con- 
 tract or to supply terms with re- 
 spect to which the writing is silent. 
 This rule of the common law may 
 be traced back to a remote an- 
 tiquity. It is a rule founded on ob- 
 vious inconvenience and injustice 
 that would result if matters in writ- 
 ing, made by advice and on consider- 
 ation, and intended finally to em- 
 body the entire agreement between 
 the parties, were liable to be con- 
 trolled by what Lord Coke expres- 
 sively calls 'the uncertain testimony 
 of slippery memory.' "
 
 167 COLLATERAL PAROL AGREEMENT. [§ 135 
 
 a gift of certain personal property to the lessee in return for prompt 
 payment of rent could not be enforced. It was not based on a suffi- 
 cient consideration to be a valid contract and could not take effect 
 as an executed gift.^®" Eeducing the agreement to writing would 
 not have changed the result. An indorsement in writing on a lease 
 under seal, without any new consideration and not under seal, is not 
 valid to reduce the amount of rent due under the terms of the lease. 
 The agreement not being under seal would not be admitted in evi- 
 dence to vary the terms of an instrument under seal. It was a mere 
 nudum pactum. Payment and acceptance of the reduced amount 
 would merely be an invalid ratification of the agreement.^^^ The 
 lessors had a right to repudiate it at any time and demand the full 
 amount of rent provided for by the lease; but in so far as the oral 
 agreement had been executed, as to the payments which had fallen 
 due and had been paid and accepted in full, the lessor had no further 
 claim. The reason of this rule is founded on public policy. It is not 
 regarded as safe or prudent to permit the contract of parties which 
 has been carefully reduced to writing and executed under seal to be 
 modified or changed by the testimony of witnesses as to the parol 
 statements or agreements of the parties.^®^ There is, on the other 
 hand, a line of cases holding that where a lessor agrees to a reduction 
 of rent in consideration of his lessee's continuing to occupy the prem- 
 ises and such reduced amount is received in full satisfaction, this 
 makes the agreement for reduction binding as to future rents.^"^ This 
 result is inconsistent with the decisions in New York and Illinois. 
 It seems to be rested on the ground that the old contract was re- 
 scinded by mutual agreement and that the modified contract was sub- 
 stituted in its place. The agreement for reduction in these cases was 
 in writing. In one of these cases it was said that "it would be a re- 
 proach to the law if any of its rules were so inflexible that in their 
 application the courts could not find a way to refuse to lend their aid 
 to such an inequitable demand as that of the" lessors for the full 
 amount of the rent.^^*' 
 
 '■"^ Bush v. Rawlins, 89 Ga. 117, 14 ='•'» JafCray v. Greenbaum, 64 Iowa 
 
 S. E. 886. 492, 20 N. W. 775; Sargent v. Rob- 
 
 "" Loach v. Farnum, 90 111. 368. ertson, 17 Ind. App. 411, 46 N. E. 
 
 "«McKenzle v. Harrison, 120 N. 925; Ten Eyck v. Sleeper, 65 Minn. 
 
 Y. 260, 24 N. E. 458; Munroe v. 413, 67 N. W. 1026. 
 
 Perkins, 9 Pick. (Mass.) 298; Lat- ^^'^ Sargent v. Robertson, 17 Ind. 
 
 timore v. Harsen, 14 Johns. (N. Y.) App. 411, 46 N. E. 925. 
 330; McCreery v. Day, 28 N. Y. St. 
 597.
 
 § 136] THE INSTRUMENT OF DEMISE. 168 
 
 That the acceptance of the reduced amount in full satisfaction of 
 the full rental is a complete satisfaction during the time it is ac- 
 cepted was decided by the Massachusetts Supreme Court. The agree- 
 ment was executed so no question could be raised on the statute of 
 frauds, and the only point was the validity of the consideration. The 
 court decided that the undertaking of the lessee, in return for the 
 reduction, to put more money in his business and take in a new part- 
 ner was an ample consideration. °^^ 
 
 In California this question is settled by a statute which provides 
 that a contract in writing cannot be altered, except by a contract in 
 writing or by an executed oral agreement.^^^ And the same is true in 
 Montana.^" 
 
 An unexecuted oral agreement between a lessor and lessee altering 
 the terms of a written lease would not be binding upon a grantee of 
 the lessor. At best su^ch an agreement would be a mere personal un- 
 dertaking between the lessor and lessee. It would not become a part 
 of the lease so as to run with the land and bind an assignee without 
 notice, particularly if the lease was one which had to be recorded to 
 be valid."* 
 
 § 136. In accordance with the general law regarding considera- 
 tion for a contract, it has been soundly stated that a gratuitous parol 
 promise to accept less rent than that stipulated for in a written lease 
 cannot be enforced,^^^ but this leaves open the question as to what 
 contracts are to be considered gratuitous and what constitutes a valid 
 consideration. On one hand it has been laid down as the rule that un- 
 less the acts of the parties amount to a surrender, a parol agreement 
 changing the amount of rent and leaving the lease unchanged in 
 other respects is not binding on the lessor.^^^ Different considerations 
 can be taken into account, however, where the tenant holds from year 
 to year and not for a fixed term. The landlord might waive any no- 
 tice to quit, in which case the tenant would have a right to vacate the 
 premises at the end of the year. So the agreement of the tenant to 
 
 "'Hastings v. Lovejoy, 140 Mass. ■>" Taylor v. Soldatl, 68 Cal. 27, 8 
 
 261, 2 N. E. 776. To same effect Pac. 518. 
 
 see Jaffray v. Greenbaum, 64 Iowa "° Wharton v. Anderson, 28 Minn. 
 
 492, 20 N. W. 775; Doherty v. Doe, 301, 9 N. W. 860; Wheeler v. Baker, 
 
 18 Colo. 456, 33 Pac. 165. 59 Iowa 86, 12 N. W. 767. 
 
 ■"^Civ. Code, § 1698; Harloe v. ="" Barnett v. Barnes. 73 111. 216, 
 
 Lambie, 132 Cal. 133, 64 Pac. 88. followed in Breher v. Reese, 17 111. 
 
 "'Civ. Code 2281; Armington v. App. 545. 
 Stelle, 27 Mont. 13, 69 Pac. 115. 
 
 I
 
 169 COLLATERAL PAROL AGREEMENT. [§ 136 
 
 remain in consideration of a reduction of rent would be based on a 
 valid consideration.^^^ 
 
 An oral agreement, subsequently made on a new consideration, and 
 before a breach of the contract, in cases falling within the rules of 
 the common law and not within the statute of frauds may have the 
 effect to enlarge the time of performance specified in the contract, or 
 may vary any of its terms, or may waive and discharge it altogether.^^^ 
 Thus, in a lease for crop rent a parol agreement changing the mode 
 in which the crop was to be delivered was valid. ^'''^ In a mining 
 lease, the lessee was told that he would not be required to comply 
 with a stipulation to take out ore within a given time but might wait 
 till transportation facilities were furnished. This operated as an 
 estoppel on the lessor and all claiming under him.^*" In accordance 
 with these principles it has been held that an oral agreement not for- 
 bidden by the statute of frauds and based on a sufficient considera- 
 tion is valid to alter the terms of an existing written lease.^^^ Where 
 crops on a leased farm had been destroyed by storms, it was agreed 
 in return for the lessee's replanting the crop that he should pay as 
 rent one-half the grain produced instead of a certain number of 
 bushels per acre. This agreement was held to be supported by suffi- 
 cient consideration, though both parties thought it less advantageous 
 to the landlord.^*^ Where tenant had leased a room in a building by 
 a lease under seal and agreed to lease an adjoining room if the rent 
 under the sealed lease be reduced, this was held to be a valid con- 
 sideration for the reduction, even though the entire rent was less 
 than that reserved in the original lease under seal.^^^ 
 
 ■^"Wilgus v. Whitehead, 89 Pa. St. gus v. Whitehead, 89 Pa. St. 131; 
 
 131. In Goldsborough v. Gable, 140 Emerson v. Slater, 22 How. (U. S.) 
 
 111. 269, a contrary result was 28; Munroe v. Perkins, 9 Pick, 
 
 reached on facts which cannot be (Mass.) 298. 
 
 distinguished. Because the land- "*Evers v. Shumaker, 57 Mo. 
 
 lord was not bound to waive notice App. 454. 
 
 to quit and could have held the '■^ Conley v. Johnson, 69 Ark. 513, 
 
 tenant for the rent originally re- 64 S, W. 277. 
 
 served till he received notice, the °" Hastings v. Lovejoy, 140 Mass, 
 agreement for reduction of rent 261, 2 N. E. 776; Jackson v. Patter- 
 was regarded as a nudum pactum. son, 4 Harr. (Del.) 534. 
 
 "'Hastings v. Lovejoy, 140 Mass. '^Raymond v. Krauskopf, 87 
 
 261, 2 N. E. 776; Blasdell v. Souther, Iowa 602, 54 N. W. 432. See also, 
 
 6 Gray (Mass.) 149; Barker v. Troy Hill v. Wilson, 15 Ky, L. R. 814. 
 
 &c. R. Co., 27 Vt. 766; Lawrence v. ''^ Horgan v. Krumwiede, 25 Hun 
 
 Davey, 28 Vt. 264; Lattimore v. (N. Y.) 116. 
 Harsen, 14 Johns. (N. Y.) 330; Wil-
 
 §§ 137, 137a] THE INSTRUMENT OF DEMISE. 170 
 
 § 137. The execution of a new lease to the same tenant for the 
 unexpired term of an old lease operates as a surrender and extinguish- 
 ment of the old lease so that the rights of the parties are to be gov- 
 erned by the new lease.^^* The question whether the transactions be- 
 tween the parties amounted to a surrender of the old lease and the 
 making of a new one is one of fact. A tenant desired to leave during 
 his term because of an insufficient water supply and the landlord 
 agreed to release him on payment of back rent. Before the time to 
 leave arrived, negotiations were begun between the parties which 
 resulted in a verbal lease on new conditions. If the parties actually 
 entered into a new oral lease containing different conditions from 
 those in the original lease, it would amount to a cancellation or sur- 
 render of the original lease. It would then become immaterial as to 
 whether there was a new consideration or not, and the lessor could not 
 be heard to say that the oral agreement was within the statute of 
 frauds, because it was in part executed.^^^ These principles would 
 seem to be broad enough to cover a case where nine months before 
 the end of a lease, the lessor agreed to reduce the rent for the bal- 
 ance of the term and the lessee agreed to continue to hold the prem- 
 ises after the end of the lease and to give three months' notice of his 
 intention to quit. The smaller payments of rent were accepted for 
 several months, but the tenant vacated at the end of the term. The 
 court held that the new agreement was not executed and that the 
 lessor could recover on the original lease.^®^ A parol agreement in re- 
 gard to holding over after the end of a term created by a sealed lease 
 is not open to the objection that it is changing a sealed instrument 
 by parol. The new agreement does not take effect till the sealed lease 
 has expired. ^^^ 
 
 IX. Agreements to Lease. 
 
 § 137a. What constitutes a valid agreement. — Under the author- 
 ities, to create a valid contract of lease, but few points of mutual 
 agreement are necessary: First, there must be a definite agreement 
 as to the extent and bounds of the property leased; second, a definite 
 and agreed term ; and third, a definite and agreed price of rental, and 
 the time and manner of payment. These appear to be the only essen- 
 
 ^^ Rollins v. Proctor, 56 Iowa 326, ■>«' Watson v. Janion, 6 Ore. 137. 
 
 9 N. W. 235. ^87 West Chicago St. R. Co. v. Mor- 
 
 ^ Evans v. McKanna, 89 Iowa rison &c. Co., 160 111. 288; 43 N. E. 
 
 362. 56 N. W. 527. 393.
 
 171 AGREEMENTS TO LEASE. [§ 137a 
 
 tials.^^® If the parties are fully agreed, there is a binding contract, 
 notwithstanding the fact that a formal contract is to be prepared and 
 signed; but the parties must be fully agreed and must intend the 
 agreement to be binding. From the very nature of such an agree- 
 ment, it is obvious that the parties contemplate the execution of a 
 more formal instrument which may contain additional details as to 
 the terms of the demise and the rights and obligations of the par- 
 ties.^^^ The mere fact that a written lease was in contemplation does 
 not relieve either of the contracting parties from the responsibility 
 of a contract which was already expressed in writing and a valid agree- 
 ment for a lease may be made by letters and telegrams. When one 
 party refuses to execute the lease according to the contract thus made, 
 the other has a right to fall back on the written propositions as origi- 
 nally made. The absence of the formal agreement contemplated is 
 not material.^^" But the agreement must contain all the ordinary 
 terms in regard to time, amount of rent and so forth or the minds of 
 the parties do not meet and it is not binding.^^^ Yet an undertaking 
 for a lease at a fair rent seems certain enough, as it may be reduced 
 to certainty by recourse to extrinsic circumstances. The value of 
 rents is not more variable than the price of goods or labor; and the 
 action of indebitatus assumpsit for a, quantum valebant is founded on 
 a contract which leaves the price to the jury, yet it has never been 
 objected that a contract of sale or for work and labor, in which the 
 price is not stipulated, was invalid because the minds of the parties 
 did not meet.^^^ So the agreement is sufficient if it gives the data 
 by which the amount of rent may be found by calculation. It is also 
 sufficient to state a gross sum subject to correction which is supposed 
 to represent the calculation.^"^ A landlord may in an agreement bind 
 
 ^8' Cochrane v. Justice Min. Co., Yet such was the decision of the 
 
 16 Colo. 415, 26 Pac. 780; Boston court. 
 
 Clothing Co. v. Solberg, 28 Wash. ^^ Post v. Davis, 7 Kan. App. 217, 
 
 262, 68 Pac. 715. 52 Pac. 903; Bonnewell v. Jenkins, 
 
 ^«^ Boisseau v. Fuller, 96 Va. 45, L. R. 8 Ch. Div. 70, 74. 
 
 30 S. E. 457. In this case the clause, '*^ Disbrow v. Wilkins, 11 N. Y. 
 
 "The above to be covered by a regu- App. Div. 628, 44 N. Y. 1115; Stein- 
 
 lar lease subject to approval of all hardt v. Buel, 1 Misc. R. (N. Y.) 
 
 parties," was appended to a stipu- 295, 48 N. Y. 668, 20 N. Y. 706; Sour- 
 
 lation for a renting. This prevent- wine v. Truscott, 17 Hun (N. Y.) 
 
 ed the agreement from taking ef- 432. Compare Davis v. Thompson, 
 
 feet as a present demise, though 13 Me. 209. 
 
 there seems to be doubt as to ^^ Weaver v. Wood, 9 Pa. St. 220. 
 
 whether it was intended to keep it ^^^^ McFarlane v. Williams, 107 111. 
 
 from being a binding agreement. 33.
 
 §' 138] THE INSTRUMENT OF DEMISE. 172 
 
 himself to lease for a certain time with an option to the lessee to 
 choose between two periods. In such case the landlord's agreement 
 to execute a lease for one or more years on certain specified terms 
 binds him to execute a lease for at least two years at the option of the 
 lessee.^^* But where the agreement provided that the covenant should 
 be amplified and extended to the satisfaction of the lessor and should 
 be such as were usual and customary in leases of like property for like 
 terms it was held it coiild not be specifically enforced because it was 
 too vague.^®^ 
 
 § 138. Specific performance of agreement. — Where a binding 
 agreement for a lease has been made and one party refuses to perform 
 his part of the contract, the remedy of the other party is not confined 
 to his action at law for damages. Since the contract involves the 
 transfer of rights in real estate, the general doctrine that equity will 
 enforce specific performance in such cases may be invoked.^^^ Selden, 
 J., speaking for the New York Court of Appeals, said : "If two par- 
 ties negotiate for a lease of certain premises, and they agree upon the 
 terms and conditions of the lease and that a written lease shall be 
 drawn and executed embracing those terms, this is not a lease but it 
 is a contract which, whenever the statute of frauds does not inter- 
 fere to prevent, can be enforced, and which the courts will compel 
 the parties specifically to perform. The books are so full of such 
 eases that it can hardly be necessary to refer to them at length."^^^ 
 
 An agreement to execute a lease four years in the future has been 
 specifically enforced against the executor of the lessor at that time, 
 no change of position having been shown by reason of the laches.^^^ 
 But if the person having contracted for a lease upon certain stipula- 
 tions enters upon the land and fails to perform the stipulations, he 
 cannot compel a lease to be made to him either by the original lessor 
 
 "'Boston Clothing Co. v. Solberg, v. Ashchermann, 51 Wis. 678, 8 N. 
 
 28 Wash. 262, 68 Pac. 715. W. 818; Kennedy v. Lee, 3 Mer. 
 
 '"'Barnes v. Ludington, 51 111. 441; Fowle v. Freeman, 9 Ves. 351; 
 
 App. 90. Bonnewell v. Jenkins, L. R. 8 Ch. 
 
 '""Cochrane v. Justice Min. Co., Div. 70, 74; Crossley v. Maycock, 
 
 16 Colo. 415, 26 Pac. 780; Clark v. L. R. 18 Eq. 180; Thomas v. Bering, 
 
 Clark, 49 Cal. 586; Wharton v. 1 Keen 729; Gibbins v. Board &c., 
 
 Stoutenburgh, 35 N. J. Eq. 266; 11 Beav. 1. 
 
 Blaney v. Hoke, 14 Ohio St. 292; '"Pratt v. Hudson River Co., 21 
 
 Mackey v. Mackey, 29 Grat. (Va.) N. Y. 305. 
 
 158 ; Boston Clothing Co. v. Solberg, '"« Ryder v. Robinson, 109 Mass. 
 
 28 Wash. 262, 68 Pac. 715; Seaman 67. 
 
 !
 
 173 AGREEMENTS TO LEASE. [§ 139 
 
 or his assignee. He who asks equity himself must do it.^''^ So, where 
 the holder of an agreement for a lease had committed such acts as 
 would have amounted to a forfeiture had a lease been actually exe- 
 cuted, with such covenants as were usually inserted in lease to other 
 tenants of the same estate, it was held he could not have the aid of a 
 court of equity to enforce a specific performance.^"*' 
 
 § 139. Breach of agreement. — After one party has refused for an 
 unreasonable time to execute a lease, according to a previous agree- 
 ment, the other party to the agreement is entitled to cancel the con- 
 tract. A lessor's rights in this respect would not be altered by the fact 
 that the lessee was in possession of the premises under a previous 
 lease.^"^ An offer to execute the lease which is not accepted relieves 
 the party making it from further obligation. This holds good, al- 
 though the refusal is not absolute but conditional on the possibility 
 of finding a purchaser for the leasehold estate.''"^ In case the agree- 
 ment is to execute a lease upon the completion of a building, the 
 owner is under no obligation to act until the building is completed. 
 So a bill in equity to compel the specific performance of an agree- 
 ment for the lease of a building, to commence at a future day on the 
 completion of the building, is prematurely filed before that time, 
 notwithstanding notice by the owner that he will not comply with his 
 agreement.^"^ 
 
 Where parties agree by parol to execute a lease, such instrument 
 would contain in the absence of special agreement only the covenants 
 which leases ordinarily contain and it is no breach for one party to 
 refuse to execute an instrument containing unusual covenants.^"* 
 But by refusing unconditionally to execute any lease at all, a party 
 may waive strict compliance with the terms of the agreement. Wlien 
 defendants had made no objection to the lease sent them to execute 
 and were not willing to accept a lease in any form, it was immaterial 
 that the lease differed in several particulars from the form annexed 
 to the agreement. They were under obligation either to execute the 
 instrument sent to them for their signature or offer a valid reason 
 for refusing to sign it and thus give the plaintiff an opportunity to 
 remove the objectionable features.®*'^ 
 
 =" Jones V. Roberts, 6 Call (Va.) «>= Douglas v. Wilbur, 6 Phila. 
 
 187. Compare Lenderking v. Rosen- (Pa.) 540. 
 
 thai, 63 Md. 28. ""^ Friedman v. McAdory, 85 Ala. 
 
 =»» Jones v. Roberts, 3 H. & M. 61, 4 So. 835. 
 
 (Va.) 436. ""^Hayden v. Lucas, 18 Mo. App. 
 
 ««» Griffin v. Knisely, 75 111. 411. 325. 
 
 sospreeiand v. Ritz, 154 Mass. 257,
 
 § 140] THE INSTRUMENT OF DEMISE. IT-i 
 
 § 140. Measure of damages. — Wlien an owner of premises refuses 
 to carry out his agreement to grant a leasehold estate of them and the 
 other contracting party resorts to an action at law to recover com- 
 pensation for the loss entailed by this breach of contract, the measure 
 of damages is the value of the contemplated leasehold estate in the 
 open market, minus the rent reserved.''"'' The measure of damages is 
 the loss of the bargain, viz. : the difference between the rent agreed 
 in the accepted proposition and the actual market value of the prem- 
 ises at the time the agreement was made."'*^ If the leasehold estate 
 has no general market value, its value should be ascertained from 
 witnesses, whose skill and experience enables them to testify directly 
 to such value in view of the hazards and chances of the business to 
 which the land was to be devoted.®"* 
 
 The same damages can be recovered for breach of a covenant for 
 quiet enjoyment by the lessor.®"" For a refusal by a purchaser of 
 real estate to complete his contract, the seller can recover as damages 
 the difference between the contract ])Tiee and the market value.®^" 
 Prospective profits from the lessee's use of the premises to be de- 
 mised are too speculative to be recoverable.®^^ Loss of profit is too 
 remote a subject of damage to be allowed at all under any circum- 
 stances in such cases as these."^^ It has been held, however, that other 
 damages than the loss of the bargain, which were the direct and natu- 
 ral consequences of the breach of contract complained of, could be 
 recovered. ®^^ Thus, in an action for breach of contract to lease a hotel, 
 the plaintiffs were held to be entitled to recover for their loss of time 
 in waiting, and for their expenses in coming from a distant state, and 
 for money paid under contract to a clerk whom they had employed 
 
 28 N. E. 226; Holdsworth v. Warrington, 8 C. B. 134, 65 E. C. L. 
 
 Tucker, 143 Mass. 369, 375, 9 N. E. 134. 
 
 764; Brewer v. Winchester, 2 Allen ^« Rhodes v. Baird, 16 Ohio St, 
 
 (Mass.) 389; Curtis v. Aspinwall, 573; Griffin v. Colver, 16 N. Y. 489; 
 
 114 Mass. 187, 193. Giles v. O'Toole, 4 Barb. (N. Y.) 
 
 ^ North Chicago St. R. Co. v. Le 261; Newbrough v. Walker, 8 Grat. 
 
 Grand Co., 95 111. App. 435. (Va.) 16. 
 
 """Garsed v. Turner, 71 Pa. St. '"'Buck v. Morrow, 2 Tex. Civ. 
 
 56; Knowles v. Steele, 59 Minn. App. 361, 21 S. W. 398. 
 
 452, 61 N. W. 557; Massie v. State ""Kempner v. Heidenheimer, 65 
 
 Nat. Bank, 11 Tex. Civ. App. 280, Tex. 591. 
 
 32 S. W. 797; Hall v. Horton, 79 "^Rhodes v. Baird, 16 Ohio St. 
 
 Iowa 352, 44 N. W. 569; Alexander 573. 
 
 V. Bishop, 59 Iowa 572, 13 N. W. '" Hanslip v. Padwick, 5 Exch. 
 
 714; Taylor v. Bradley, 4 Abb. App. 615. 
 
 Dec. (N. Y.) 363; Robinson v. Har- ""Adair v. Bogle, 20 Iowa 238, 
 
 man, 1 Exch. 850; Worthington v. 244.
 
 175 AGREEMENTS TO LEASE. [§ 1-iO 
 
 and brought with them to aid in operating the hotel.® ^* For a breach 
 of an agreement to make or assign a lease, the intending lessee may 
 recover as damages sums expended by him in examining the title 
 and in drawing necessary papers. ^^^ But such items of damage as are 
 incurred by the plaintiff by his own imprudence in beginning to act 
 before he had ascertained whether the defendant could or could not 
 complete his contract cannot be recovered. ^^® In a case where there 
 was a letting on the shares and the owner of the premises refused to 
 let the other party into possession, the latter was allowed to recover 
 the value of his contract, that is to say, what he could reasonably have 
 made out of it, as his damages. To say that the plaintiff's damages 
 should be measured by what he could have made on the farm is but 
 another mode of saying he was entitled to the value of his bargain.®^ ^ 
 It amounts to the same thing to charge that the plaintiff is entitled 
 to be put in the same position, pecuniarily, as if the bargain had been 
 kept.*'^^ A different rule has been applied where the party contract- 
 ing to grant a leasehold estate is unable to do so because of an unfore- 
 seen event for which he is not to blame, as where a life interest comes 
 to an end. The damages would be the same as in the case of a breach 
 of a contract to sell land, made without fraud or misrepresentation 
 and which the vendor is unable to carry out because he cannot make 
 a good title.® ^^ In such case the vendee cannot recover for the fan- 
 cied goodness of the bargain.®^" 
 
 In one case there was no evidence of any pecuniary loss from the 
 breach, or of any precise loss which could be ascertained in money, 
 but the complaint was that the plaintiff was disappointed and put to 
 trouble and inconvenience in procuring another house. It was held 
 that a verdict giving actual damages could not be sustained.®^^ 
 
 Where the owner of premises brings an action at law against an in- 
 tended lessee for failure to carry out his agreement to lease premises, 
 
 '"Hall V. Horton, 79 Iowa 352, "" McClowry v. Croghan, 1 Grant 
 
 44 N. W. 569. To a similar effect Cas. (Pa.) 307. 
 
 is Driggs v. Dwight, 17 Wend. (N. «=" Sugd. Vendors (7 Am. ed.) 
 
 Y.) 71. Vol. I, p. 491; Flureau v. Thorn- 
 
 "^Hanslip v. Padwick, 5 Exch. hill, 2 W. Bl. 1078; Walker v. 
 
 615; Richardson v. Chasen, 10 Q. Moore, 10 B. & C. 416; Baldwin v. 
 
 B. 756, 59 E. C. L. 756. Munn, 2 Wend. (N. Y.) 399; Shan- 
 
 "'Hanslip v. Padwick, 5 Exch. non v. Comstock, 21 Wend. (N. Y.) 
 
 615. 457, 460; Peters v. McKeon, 4 Denio 
 
 "'Hoy v. Gronable, 10 Casey (N. Y.) 546. 
 
 (Pa.) 9; Wolf v. Studebaker, 65 Pa. ^=' Hunt v. D'Orval, Dud. Law 
 
 St. 459. (S. Car.) 180. 
 
 •"« Garsed v. Turner. 71 Pa. St. 56.
 
 §■ 141] THE INSTEUMENT OF DEMISE. 1T6 
 
 the measure of the damages sustained by the plaintiff is the differ- 
 ence between the contract price of the leased premises as agreed upon 
 and the amount that the plaintiff was able to realize out of the prop- 
 erty after he had been notified that the defendant did not intend to 
 take it."^^ However, the lessor will not be allowed to recover except 
 for such loss, as he could not, by the use of reasonable effort and care 
 and at a moderate expense, have prevented. If by ordinary effort and 
 care, and at a moderate expense, he could have cultivated the land, 
 or could have rented it, it was his duty to do so.®^^ In determining 
 the difference between the market value of the lease and the agreed 
 rent, installments of rent not due at the time of the suit must be dis- 
 counted at the legal rate.*'^^ 
 
 § 141. Lease or agreement to lease. — "The general features of dif- 
 ference between a lease or present demise and a contract for a future 
 letting are well understood, though the line of distinction is often 
 too difficult to trace in its application to particular cases; and there 
 is much conflict in the authorities. The question has generally arisen, 
 as one purely of law upon the construction of the language of the 
 written instrument, the distinction being often made to turn upon 
 very slight differences in phraseology, though it is always a question 
 of the intention of the parties.'"'^^ It is a cardinal point in deter- 
 mining whether contracts between parties in regard to letting are 
 leases or agreements for leases to seek the intention of the parties from 
 the whole instrument."-*' Much discussion has arisen in the English 
 courts, as to what is a lease and what is only an agreement for a lease, 
 because if it be a lease, then a stamp of higher denomination is re- 
 quired. And Lord Ellenborough says that the rule to be collected 
 from all the cases is, that the intention of the parties, as declared hy 
 the words of the instrument, must govern construction.^^'' The ques- 
 tion is one of construction to be determined from what appears to be 
 the paramount intention of the parties as collected from the whole 
 
 «='Post V. Davis, 7 Kan. App. 217, (N. Y.) 74, per Spencer, J.; Col- 
 
 52 Pac. 903; Cleveland v. Bryant, clough v. Carpeles, 89 Wis. 239, 61 
 
 16 S. Car. 634; Bacon v. Combes, N. W. 836. 
 65 N. Y. S. 510. ""Poole v. Bently, 12 East 168, 
 
 *" Stoker v. Wilson, 3 Willson Lord Ellenborough; Stanley v. Ho- 
 
 Civ. Cas. (Tex.), § 10. tel Corporation, 13 Me. 51; Weed 
 
 ""Massie v. State Nat. Bank, 11 v. Lindsay, 88 Ga. 686, 15 S. E. 836; 
 
 Tex. Civ. App. 280, 32 S. W. 797. Jackson v. Delacroix, 2 Wend. 
 
 ''=' Tillman V. Fuller, 13 Mich. 113, 433. South Dakota: Grigsby v. 
 
 119, per Christiancy, J. Western &c. Tel. Co., 5 S. D. 561, 
 
 o^" Thornton v. Payne, 5 Johns. 59 N. W. 734.
 
 177 AGREEMENTS TO LEASE, [g 14:2 
 
 tenor of the instrument.^-' Defects in the form of the instrument 
 alone are not sufficient to change what would otherwise he a lease into 
 an agreement for one. In holding an instrument defective in form 
 alone was a lease, the Connecticut court said: "Here are all the ele- 
 ments of a valid lease, common parties, a subject-matter particularly 
 described, a definite term, its beginning and ending fixed, and the 
 amount of rent with terms of payment. The instrument is deficient 
 only in matter of form.'"^^^ 
 
 Although the line separating present leases from agreements for a 
 future demise is often difficult to distinguish, there is a marked 
 difference in the rights of the parties under the two contracts. By a 
 lease the lessee acquires an estate in the land, by an agreement for a 
 lease he merely acquires an executory right to have the owner convey 
 him an estate for breach of which he has a claim for damages or a 
 possible right to specific performance in equity. It constitutes an 
 aml;)iguity for which a complaint will be bad on demurrer to allege 
 an agreement for a lease and to state contracts which constitute an 
 actual lease.^^'' 
 
 § 142. The test of intention in regard to making a lease or an 
 agreement to lease is whether the agreement leaves anything incom- 
 plete. If it does not, it may operate as a present demise."-''^ The law 
 seems to be settled that when an agreement leaves nothing to be done 
 and gives the lessee an immediate right to possession, it is a lease, 
 passing a present estate in the land.*'^^ If the words used imply an 
 immediate demise, with no stipvilation for a further lease, the term, 
 rent and manner of occupation being all explicitly stated, it confers 
 all the rights of a lessee upon the contracting party. In every case 
 where an agreement has been held not to operate by passing an in- 
 
 *"* Connecticut: Buell v. Cook, 4 ment purported to be a lease and 
 
 Conn. 238, 242. English: Goodtitle contained a description of the prem- 
 
 V. Way, 1 Term R. 735; Roe v. Ash- Ises occupied and fixed the rent, 
 
 burner, 5 Term R. 163. Illinois: time of payment and length of 
 
 Griffin v. Knisely, 75 111. 411. Massa- term, it constituted a lease. Coyne 
 
 chusetts: Bacon v. Bowdoin, 22 v. Feiner, 16 N. Y. S. 203, 41 N. Y. 
 
 Pick. 401; Kabley v. Worcester &c. St. 93. 
 
 Co., 102 Mass. 392. Missouri: West- "^ Crow v. Hildreth, 39 Cal. 618. 
 
 ern &c. Co. v. Gannon, 50 Mo. App. ""Doe v. Ries, 8 Bing. 178. 
 
 642. New York: Hallett v. Wylie, 3 «== Staniforth v. Fox, 7 Bing. 590; 
 
 Johns. 44; Thornton v. Payne, 5 Roe v. Ashburner, 5 Term R. 163; 
 
 Johns. 74. Jenkins v. Eldredge, 3 Story 325, 
 
 «=» Johnson v. Phoenix &c. Ins. Co., 13 Fed. Cas. No. 7268. 
 46 Conn. 92, 102. Where an instru- 
 
 JoNES L. & T.— 12
 
 § 143] THE IXSTRUMEXT OF DEMISE. 178 
 
 terest but to rest in contract, there has been either an express agree- 
 ment for a further lease, or construing the agreement to be a lease 
 in praesenti would work a forfeiture, or the terms have not been fully 
 settled, or something further was to be done.®^^ On the other hand 
 if the contracting parties intend to do something further after mak- 
 ing an agreement for a lease, such as executing a formal lease with 
 covenants, the earlier instrument is not a lease but merely an agree- 
 ment for a lease.^^* As long as the parties do not consider the matter 
 finished, it is not a completed lease."^^ Where there was a binding 
 contract sufficient to satisfy the statute of frauds, the addition of the 
 words "Notes and papers to be drawn as soon as convenient," showed 
 that the parties considered the transaction as incomplete and the writ- 
 ing was only an executory agreement for a lease.*'^'* However, where 
 there are apt words of present demise and the tenant goes into pos- 
 session and occupies thereunder, an instrument will be construed as a 
 present demise rather than as an agreement for a lease, even though 
 it contains a covenant for the execution of a more perfect and formal 
 lease.^^^ 
 
 § 143. Where there is no covenant for executing any further in- 
 strument, an agreement will take effect as a present lease, even 
 though the term is not to beg^n until a future time.*'^^ In many 
 cases where there were apt words for a present demise and the term 
 was to commence in futuro at a day certain, it has been held that the 
 parties intended to make a lease to begin in the future.®^^ An in- 
 strument employing the language ''hereby leases and demises" in 
 
 "^ Thornton v. Payne, 5 Johns. ®'' People v. Kelsey, 14 Abb. Pr. 
 
 (N. Y.) 74; Colclough v. Carpeles, (N. Y.) 372, 38 Barb. (N. Y.) 269; 
 
 89 Wis. 239, 61 N. W. 836. Jenkins v. Eldredge, 3 Story 325, 
 
 "^'^ Goodtitle v. Way, 1 Term R. 13 Fed. Cas. No. 7268; Hallett v. 
 
 735; Roe v. Ashburner, 5 Term R. Wylie, 3 Johns. (N. Y.) 44, 3 Am. 
 
 163; Doe v. Smith, 6 East 530; Mor- Dec. 457; Boisseau v. Fuller, 96 Va. 
 
 gan v. Bissell, 3 Taunt. 65. 45, 30 S. E. 457. 
 
 '^ Harrison v. Parmer, 76 Ala. ^^ Bacon v. Bowdoin, 22 Pick. 
 
 157; Buell v. Cook, 4 Conn. 238; (Mass.) 401; Kabley v. Worcester 
 
 Martin v. Davis, 96 Iowa 718, 65 N. &c. Co., 102 Mass. 392; People v, 
 
 W. 1001. Kelsey, 14 Abb. Pr. (N. Y.) 372, 38 
 
 ''^ Harrison v. Parmer, 76 Ala. Barb. (N. Y.) 269; Trull v. 
 
 157. Granger, 8 N. Y. 115; Becar v. 
 
 *^^ Jackson v. Kisselbrack, 10 Flues, 64 N. Y. 518, 520; Colclough 
 
 Johns. (N. Y.) 336, 6 Am. Dec. 341; v. Carpeles, 89 Wis. 239, 61 N. W. 
 
 Jackson v. Van Hoesen, 4 Cow. (N. 836; Chapman v. Bluck, 4 Bing. N. 
 
 Y.) 325; Jourgensen v. Fraitel, 20 C. 187, 196. 
 N. Y. S. 33. 47 N. Y. St. 413.
 
 179 AGEEEMENTS TO LEASE. [§ 143 
 
 the present tense provided that the term was to begin in two months 
 and last for ten years, and thereby created a present lease, it being 
 no objection that the term was to begin in the fiitnre.*^*" If a con- 
 tract of letting is evidenced by letters in which the building, the com- 
 mencement and length of the term and the rate of rent are distinctly 
 described, so that no additional document is necessary to express the 
 intent of the parties and there is no indication in the writing or in 
 the conduct of the parties that any other or more formal instrument 
 is intended to be made, there can be no doubt that the parties in- 
 tended what the language clearly imports — namely, a present demise 
 to commence in the future.*'*^ If there is anything conditional in 
 regard to the state of the premises, such condition can be satisfied 
 by performance before the day appointed for the commencement of 
 the new term.^*- In a case strengthened by a formal instrument with 
 words of present demise, the New York Supreme Court reached the 
 opposite result and held the instrument under consideration to be 
 a mere agreement for a future leasing.*'*^ The decision seems to rest 
 on a misconception of the rule that to be a present demise the doing 
 of nothing further shall be contemplated, which refers to the execu- 
 tion of other instruments and not to alterations or changes in the 
 premises themselves. So there is sound reason for a decision that an 
 instrument, with words of present demise, complete in itself and 
 looking to no further deeds, took effect as a present demise, although 
 the commencement of the term was not definitely fixed, and the lessor 
 had no title to the premises when the contract was executed but merely 
 an agreement for a future formal lease to be executed when a build- 
 ing was finished. The instrument was complete in itself; it fixed 
 the term, rent and duty to repair ; clearly no further lease was in the 
 contemplation of the parties.®** It furnishes no objection that the 
 term is to commence upon the completion of a building,*'*^ 
 
 But where the owner of land agreed that a person should have a 
 term in it beginning thirty days after owner's death and covenanted 
 that he would make a provision in his will to carry out this agree- 
 
 •^Weed V. Crocker, 13 Gray «^^ Jackson v. Delacroix, 2 Wend. 
 
 (Mass.) 219. (N. Y.) 433. 
 
 ^ Shaw V. Farnsworth, 108 Mass. "* Western &c. Co. v. Gannon, 50 
 
 357; Chapman v. Bluck, 5 Scott 515, Mo. App. 642. See also, Steinfleld 
 
 531. V. Wilcox, 56 N. Y. S. 217. 26 Misc. 
 
 ^ Shaw V. Farnsworth, 108 Mass. R. 401. 
 
 357; Bacon v. Bowdoin, 22 Pick. "= Colclough v. Carpeles, 89 Wis. 
 
 (Mass.) 401. 239, 61 N. W. 836.
 
 §§ 144, 145] THE IXSTRUMENT OF DEMISE, . 180 
 
 ment, it was held that this was an agreement to lease merely and not 
 a lease.''**' 
 
 § 144. The words "agree to let" have for a long" time been held to 
 be apt words of present demise.'^*" The form of expression "we agree 
 to rent or lease" is not indicative of intention not to make a present 
 demise but may take effect as a present demise, and does not neces- 
 sarily import that a lease is intended to be given at a future day. On 
 the contrary these words may take effect as a present demise, and the 
 words "agree to let" have been held to mean exactly the same thing 
 as the word "let," unless there be something in the instrumeiit to 
 show that a present demise could not have been in the contemplation 
 of the parties.''** 
 
 A lease for a year containing a clause "we further agree to lease to 
 said tenant said premises for as long as he wishes to occupy them," 
 was held to operate as a lease and not merely as an agreement for a 
 lease, and the lease was valid in spite of the indefinite period for its 
 continuance."*^ 
 
 § 145. Agreements subject to a condition. — Wliere an agreement 
 for leasing a building, in words sufficient to import a present demise, 
 contained a proviso that a majority of the county court should agree 
 to it, it was only an agreement for a lease on a condition precedent. "^^ 
 But where a tenant at will agreed to take a house for three years 
 from a certain future date, if the owner would put in a new furnace, 
 acceptance by the owner created a present demise and not a mere 
 agreement to execute a lease at a future time.^''^ An agreement to 
 make a lease contained the clause "The $100 to be paid on signing 
 of said lease is to apply on -first month's rent," but there was no other 
 reference to the $100 in the agreement. In the absence of other 
 stipulations the making or tendering of payment was not a condition 
 precedent to the right of the lessee to enforce damages for the non- 
 execution of the lease.®^^ 
 
 •^ Weld V. Traip, 14 Gray (Mass.) ***Kabley v. Worcester &c. Co., 
 
 330. 102 Mass. 392; Doe v. Benjamin, 9 
 
 •^^ Western &c. Co. v. Gannon, 50 A. & E. 644. 
 
 Mo. App. 642; Averill v. Taylor, 8 "» Holley v. Young, 66 Me. 520. 
 
 N. Y. 44; Kabley v. Worcester &c. "^"Buell v. Cook, 4 Conn. 238. 
 
 Co., 102 Mass. 392; Doe v. Benja- "=' Shaw v. Farnsworth, 108 Mass. 
 
 min, 9 A. & E. 644; Chapman v. 357. 
 Bluck, 4 Bing. N. C. 187.
 
 181 AGREEMENTS TO LEASE. [§ 146 
 
 i? 146. Effect of possession by lessee. — An instrument which is in 
 otlier respects a lease is not changed into a mere agreement for a 
 lease because the lessee refuses to accept possession.^^^ It is equally 
 true that one having a landowner's agreement to lease does not ob- 
 tain an estate in the land by going into possession. He would be a 
 mere licensee.''^'* So where a person was in possession as underten- 
 ant and made an executory agreement for a lease from the original 
 lessor after the expiration of his existing term, this agreement did 
 not entitle him to defend against an action based on a dispossessory 
 warrant. "^^ Furthermore, entry into possession under an agreement 
 for a lease would not give the tenant such an estate in the land that 
 he could recover damages when the premises were taken on eminent 
 domain. The tenant in the case so holding had been ejected by the 
 landlord before the proceedings to condemn the land were instituted. 
 So long as he remained in possession, the agreement might be suffi- 
 cient to protect him and to define the conditions of his occupancy. 
 In equity he would be protected against ejection and might compel 
 the execution of a lease which would confer on him the legal estate 
 for the stipulated term. But he had not acquired the legal estate 
 when he was virtually ejected from the premises, and he had ceased 
 to be a tenant thereof before damages from the city became payable 
 to anybody. His remedy would be an action at law against the land- 
 owner for breach of the executory contract.*'^" "Where parties enter 
 under a mere agreement for a future lease," explains Justice Little- 
 dale, "they are tenants at will, and if rent is paid under the agree- 
 ment they become tenants from year to year, determinable on the 
 execution of the lease contracted for, that being the primary con- 
 tract.""^^ Thus, in a case where one party entered into possession of 
 premises under an agreement to take a lease of them but the parties 
 could not agree upon the terms of the lease and defendant refused to 
 vacate after notice to quit, he was liable to the owner in an action of 
 trespass after the latter had resumed possession.*^^* 
 
 But the tenant's possession is always available to show that there 
 was an actual demise rather than a contract for future leasing. 
 
 "=*= Hall v. Horton, 79 Iowa 352, 44 "'" McGratli v. City of Boston, 103 
 
 N. W. 569. Mass. 369. 
 
 "^'Rice V. Brown, 81 Me. 56, 16 "" Hamerton v. Stead, 3 B. & C. 
 
 Atl. 334. 478, 483, per Littledale, J., quoted 
 
 "^^ Potter V. Mercer, 53 Cal. 667; in Weed v. Lindsay, 88 Ga. 686, 15 
 
 Pulse V. Hamer, 8 Ore. 251. S. E. 836. 
 
 "''Gibson v. Needham, 96 Ga. 172, "'"Welch v. Winterburn, 25 Hun 
 
 22 S. E. 702. (N. Y.) 437.
 
 § 147] THE IXSTRUMEXT OF DEMISE. 182 
 
 Transfer of possession is evidence throwing light on the intention 
 of the parties when that is left obscure by the wording of the instru- 
 ment.*'^® Where the intention of the parties is not clearly expressed, 
 the transfer of possession under the agreement will be a circumstance 
 tending to show it was intended as a lease in praesenti.^^^ An agree- 
 ment in one case provided that premises should be survcA-ed and that 
 then one party should take a lease. It was held after long possession 
 and payment of rent that this took effect as a present demise rather 
 than as an agreement for a future lease.*'*'^ Moreover it has been 
 held that an entry into possession under a mere agreement to lease 
 may be sufficient proof of a waiver by the parties of the original in- 
 tention to execute a formal lease.®*'- For where an agreement for a 
 lease contained a provision that formal leases should be executed on 
 certain blank forms for leases in use in leasing rooms in a certain 
 building before the lessee went into occupation, it was held competent 
 for the parties to waive this provision, in which case the agreement 
 constituted an actual demise of the premises and the provisions in 
 the blank form became incorporated in the instrument by reference.®®^ 
 
 X. Statute of Frauds. 
 
 § 147. The English Act. — In all countries where the common-law 
 system of jurisprudence prevails, the statute passed in the reign of 
 Charles II, commonly known as the Statute of Frauds, furnishes the 
 basis for subsequent enactments requiring that certain contracts 
 and agreements must he proved by written instruments. Even where 
 the exact words of the original act are not used, as is frequently the 
 case, the construction of the statute of Charles II by English courts 
 is an important aid in construing other statutes on the same 
 topic. The parts of the English act, applicable to the making of 
 leases, provide in effect that parol transfers of real estate, without 
 
 *=' Billings V. Canney, 57 Mich. ^^^ Jackson v. Kisselbrack, 10 
 
 425, 24 N. W. 159; Shaw v. Farns- Johns. (N. Y.) 336, 6 Am. Dec. 341. 
 
 worth. 108 Mass. 357. ""^ Culton v. Gilchrist, 92 Iowa 
 
 ««° Chapman v. Towner, 6 M. & W. 718, 61 N. W. 384; Neppach v. Jor- 
 
 100; Jones v. Reynolds, 1 Q. B. 506, dan, 15 Ore. 308, 14 Pac. 353. Com- 
 
 41 E. C. L. 646; Doe v. Benjamin, pare Cheney v. Newberry, 67 Cal. 
 
 1 Perry & D. 440; Bacon v. Bow- 125, 7 Pac. 444. 
 
 doin, 22 Pick. (Mass.) 401; Jenkins ^^ People v. St. Nicholas Bank, 3 
 
 V. Eldredge, 3 Story 325, 13 Fed. N. Y. App. Div. 544, 74 N. Y. St. 35, 
 
 Cas. No. 7268; People v. Gillis. 24 38 N. Y. S. 379. 
 Wend. (N. Y.) 201; Jackson v. Dela- 
 croix, 2 Wend. (N. Y.) 430.
 
 183 STATUTE OF FRAUDS. [§ l-iS 
 
 regard to the consideration paid, shall have the effect of creating estates 
 at will merely. Then follows an exception to the above provision in 
 section (2) in favor of all leases not exceeding the term of three 
 years from the making thereof, where the rent reserved amounts to 
 two-thirds part at least of the full impro^'ed value of the thing de- 
 mised.*"'* It is further provided in section (4) of the English act 
 that no action shall be brought for the sale of any interest in land, 
 or upon any agreement that it is not to be performed within one 
 year from the making thereof unless the agreement be put in writing 
 and duly signed. These sections soon received judicial construction 
 and leases not exceeding three years have always been considered as 
 excepted by the second section from the operation of the fourth 
 * * * A parol lease warranted by the second section may be as 
 special in its term as a written one.^*'^ The clause regarding parol 
 agreements not to be performed within the space of one year does not 
 apply to agreements regarding the sale or leasing of land, although 
 in terms broad enough to cover such contracts. But from the group- 
 ing of the sections it is apparent that this section applies only to con- 
 tracts regarding personal property, and agreements for work and 
 labor.®^*' The effect of this statute, so far as it applies to parol leases 
 not exceeding three years, is that the leases are valid, and that what- 
 ever remedy may be had in their character of leases may be resorted 
 to, but they do not confer a right to sue the lessee for damages for not 
 entering on or occupying the demised premises."®^ As long as the 
 parol lease is executory no action will lie on it ; but after entry into 
 possession an action will lie, if the lease be for three years or less, 
 and all its provisions are as valid and binding as if it had been reduced 
 to writing.^^® 
 
 § 148. Form of statutes for the prevention of frauds and perjuries 
 in the United States. — In the older states of this country, the English 
 mode of expression is followed denying to parol transfers a greater 
 validity than leases at will, while the exception in favor of short 
 term parol leases is either lengthened, shortened, or omitted alto- 
 gether. Another common form for such statutes, more usual in the 
 west, is a provision that no action shall be brought on a contract "for 
 the sale of land or for a leasing thereof for a longer period than one 
 
 '8*29 Car. 2 c. 3. Edge v. Strafford, 1 C. & J. 391; 
 
 «°5 Bolton v. Tomlin, 5 A. & B. Ryley v. Hkks, 1 Str. 651. 
 
 ««« Hollis v. Edwards, 1 Vern. 159. "'^ Bolton v. Tomlin, 5 A. & E. 
 
 856, 864, per Denman, C. J. 856. 
 «"Inman v. Stamp, 1 Stark. 10;
 
 §■ i-is] 
 
 THE INSTRUMENT OF DEMISE. 
 
 184 
 
 year/' unless the same is in writing subscril^ed by the party to bo 
 bound or his duly authorized agent.^^^ The effect of the statute is 
 the same whether it is worded that a parol lease creates merely an 
 estate at will, or that no action shall be brought on a parol lease, or 
 that a parol lease shall be void. These differences in phraseology are 
 not material. Thus, in a jurisdiction where the statute read that 
 every parol contract for a leasing for a longer period than one year 
 shall be void, it was urged that a tenancy from year to year was not 
 created by entrance and occupation under a parol lease for two years. 
 The court said : "It will be observed that these provisions in regard 
 to parol leases differ somewhat from the terms of the English statute 
 of frauds, and from the statute as adopted in some of our sister states, 
 which do not make verbal leases exceeding the prescribed period void, 
 but allow them the effects of estates at will.'^'° But the counsel does 
 not contend even for such a literal and rigid construction of the above 
 provisions of our statute as would make this parol lease for two years 
 absolutely void — more especially when coupled with the facts of the 
 lessee's entry under it, his holding possession of the premises for about 
 a year and eight months and his payment of the stipulated rent for a 
 year and a half. It surely would be difficult to find a case where the 
 facts would more fully warrant the conclusion that a tenancy from 
 vear to vear was created than the one before us,""^ No recovery 
 
 669 rpj^g exception in favor of parol 
 leases is put at one year in Ala- 
 bama, Arkansas, Alaska, Arizona, 
 California, Colorado, Connecticut, 
 Georgia, Idaho, Illinois, Iowa, Kan- 
 sas, Kentucky, Michigan, Minnesota, 
 Mississippi, Montana, Nebraska, 
 Nevada, New York, North Dakota, 
 Oklahoma, Oregon, Rhode Island, 
 South Carolina, South Dakota, Ten- 
 nessee, Texas, Utah, West Virginia, 
 Wisconsin, Wyoming. At two years 
 in Florida. At three years in In- 
 diana, New Jersey, North Carolina, 
 Pennsylvania. At five years in Vir- 
 ginia. At seven years in Maryland. 
 In Delaware a contract for renting 
 for a year, though respecting an 
 interest in lands, is excepted by 
 landlord and tenant act, and may 
 be proved by parol. Himesworth v. 
 
 Edwards, 5 Harr. (Del.) 376; In 
 Louisana leases may be made either 
 by written or verbal contract. Mer- 
 ricks Rev. Civ. Code 1901, Art. 
 2683. But if the lease has not been 
 reduced to writing a purchaser of 
 the reversion cannot be compelled 
 to give any indemnification for 
 evicting the lessee. Ibid Art. 2741. 
 
 ""Bolton V. Tomlin, 5 A. & E. 
 856; Ellis v. Paige, 1 Pick. (Mass.) 
 43; Davis v. Thompson, 13 Me. 209, 
 214; Barlow v. Wainwright, 22 Vt. 
 88; Browne on Frauds, ch. 3; Doe 
 v. Bell and Clayton v. Blakey, 2 
 Smith's Lead. Cas. 119, 127. 
 
 "1 Koplitz v. Gustavus, 48 Wis. 48, 
 3 N. W. 754, per Cole, J. To same 
 effect see Utah Optical Co. v. Keith, 
 56 Pac. 155, 18 Utah 464.
 
 185 STATUTE OF FRAUDS. [§ 149 
 
 could be had, however, on the special agreement, as that is declared 
 void by the express terms of the statute.''^- 
 
 Short term parol leases depend for their validity on the clause in 
 the statute of frauds excepting them from the sweeping general pro- 
 visions of the act ; but this excepting clause is omitted from the stat- 
 ute, as reinacted in several of the states, so that in those states all 
 parol leases without regard to the length of the term are rendered 
 unenforceable.*'^^ Thus, in Massachusetts, a parol lease "for the 
 season," though construed to be for a term less than a year, was held 
 to create an estate at will only, although the parol agreement was for 
 a greater estate.^'^* Whether the omission of the excepting clause has 
 any bearing on the doctrine of tenancies from year to year, has given 
 rise to litigation and arrayed courts of great authority and learning 
 on opposing sides. "^^ 
 
 The provision in regard to contracts not to be performed within a 
 year is found in the American statutes and, although unimportant in 
 England because held not to apply to contracts regarding real estate, 
 becomes an important factor here because it is sometimes held to 
 apply to leases. 
 
 § 149. The requirement of the original English statute as to the 
 value of the rent reserved has not been incorporated in subsequent 
 enactments, and in the United States the exception in favor of short 
 period parol leases is not usually made dependent upon the reservation 
 of any rent. Such a provision is found occasionally however. Thus, 
 in New Jersey the exception in the statute of frauds does not save 
 all leases for less than three years but only such whereupon the rent 
 reserved shall amount to two-tliirds, at least, of the full improved 
 value of the thing demised. ^'° And in South Carolina the exception 
 is in favor of leases "not exceeding the term of one year from the 
 time of entry, whereupon the rent reserved to the landlord during 
 such term shall amount unto two-thirds part, at the least, of the full 
 improved value of the thing demised.""^^ In statutes where this re- 
 quirement is made the clause is satisfied, according to the authorities, 
 by showing that the rent reserved is at least two-thirds the rental 
 
 "-Phipps V. Ingrahm, 41 Miss. "'* Kelly v. Waite, 12 Mete. 
 
 256. (Mass.) 300. 
 
 "" No exception is made in favor °" §§ 192-214. 
 
 of short term parol leases in "" Gano v. Vanderveer, 34 N. J. 
 
 Hawaii, Maine, Massachusetts, Mis- Law 293. 
 
 souri, New Hampshire, New Mexico, °'^ Civil Code 1902, § 2650. 
 Ohio, Vermont, Washington.
 
 §§ 150^ 151] THE INSTEUMEXT OF DEMISE. 186 
 
 value of the demised premises. It need not be two-thirds of the im- 
 proved value of the fee.®^^ 
 
 § 150. In New Mexico it is held that the common law, together 
 with all British statutes of a general nature not local to that country, 
 nor in conflict with the constitution and the form of government 
 and institutions, passed prior to the separation of the colonies and in 
 force at that time form a part of the law of the territory, except when 
 the laws of congress or the local legislature had otherwise provided.''"^ 
 In accordance with this doctrine the English statute of frauds is re- 
 garded as in force in New Mexico.^^" On authority of the English 
 cases which interpret the clause concerning the value of the rent re- 
 served, it has been held that two-thirds the value of the thing demised 
 means two-thirds the rental value and not two-thirds the value of the 
 fee.®*^ In other matters of interpretation it would seem that the 
 courts in that jurisdiction would follow the analogy of the English 
 rules, even if they did not feel bound by the English decisions as 
 precedents. 
 
 § 151. Assignments. — Specific provision is often made in the vari- 
 ous statutes against frauds and perjuries against parol assignments 
 of leases for more than a specified short term. Even without such a 
 provision, it seems that a contract for the assignment of a lease for 
 more than the permitted period for parol leases is within the stat- 
 ute.^®^ Where there was no express provision in a statute requiring 
 an assignment or underletting by a termor to be in writing, it was 
 urged that a term which could only be created by writing could never- 
 theless be assigned by parol. The court replied that "The words of 
 these statutes, in truth, embrace the transfer of terms as well as the 
 creation of them. They are that all contracts to sell or convey land 
 or any interest in or concerning it, shall, with one exception, be void 
 unless in writing. Now a term for years is not only an interest but 
 it is an estate in land; and therefore a contract to assign a term is 
 a contract to sell and convey land. Besides it is a mistake to sup- 
 
 "» Union Banking Co. v. Gittings, ^«»Childers v. Talbott, 4 N. Mex. 
 
 45 Md. 181; Birckhead v. Cummins, 336, 16 Pac. 275. 
 
 33 N. J. L. 44; Cody v. Quarter- =" Childers v. Lee, 5 N. Mex. 576, 
 
 man, 12 Ga. 386; Childers v. Tal- 25 Pac. 781. 
 
 tott, 4 N. Mex. 336, 16 Pac. 275. "'= Benton v. Schulte, 31 Minn. 312, 
 
 ""Browning v. Browning, 3 N. 17 N. W. 621; Kingsley v. Siebrecht, 
 
 ■Mex. 659, 9 Pac. 677. 92 Me. 23, 42 Atl. 249; Smith v. 
 
 Smith, 9 Ky. L. R. 100.
 
 187 STATUTE OF FRAUDS. [§ 152 
 
 pose that the statute, in respect to the creation of terms, embraces 
 only those created immediately out of the inheritance. Therefore if 
 a termor underlets the premises, so as to leave a reversion in himself, 
 that is a new term created out of the former one and is within the 
 words of the act."®^^ This same point was raised in a Michigan case 
 where it was urged that the original term was a chattel interest which 
 could lawfully be assigned by parol. Cases were cited which hold that 
 such an interest can be sold on execution as a chattel.*'-* But it was 
 held that the assignee did acquire an interest in land ; and it was for- 
 bidden by statute that such an interest should be acquired by parol; 
 therefore a parol assignment of a term for years would be invalid if 
 the statute of frauds has been pleaded. '^^^ Although the subject-mat- 
 ter of the contract is the lease itself and not the land covered by the 
 lease, still a contract for the assignment of a lease is for an interest 
 "in or concerning" land, and hence is within the common wording 
 of the statute of frauds.*'^*' It is none the less a lease of land, because 
 the lessor himself has only a leasehold estate and therefore a sub- 
 lease of premises must comply with the statute of frauds just as much 
 as a lease which creates a term for years out of a fee.'^^^ 
 
 The rule that a transfer of possession will operate as a part per- 
 formance sufficient to take a parol contract out of the statute of frauds 
 has been applied in the case of a parol assignment. The assignee 
 went into possession and paid rent, but subsequently vacated, and was 
 sued for rent accruing during the balance of the term. It was held 
 that part performance took the case out of the statute of frauds and 
 that the landlord could recover the rent.^^^ 
 
 § 152. Leases for one year from future date. — T\niere the words of 
 the statute are that parol leases for a period of more than one year 
 from the mahing thereof shall be void, this clearly includes terms 
 beginning in future which are to run for a year.^®^ The same would 
 
 "'^Briles v. Pace, 13 Ired. L. (N. ^^^ Dewey v. Payne, 19 Neb. 540, 
 
 Car.) 279. - 26 N. W. 248. But see §§ 159-161. 
 
 85* Buhl V. Kenyon, 11 Mich. 249; "^^ Garner v. Ullman, 99 Ala. 218, 
 
 Grover v. Fox, 36 Mich. 453. 13 So. 382; Bain v. McDonald, 111 
 
 "'^Pratcher v. Smith, 104 Mich. Ala. 269, 20 So. 77. An example of 
 
 537, 62 N. W. 832, construing How. such a statute is found in Shan. 
 
 St., § 6174. Code Tenn., § 3142, sub sec. 4. It 
 
 "'" Kingsley v. Siebrecht, 92 Me. reads that "No action shall be 
 
 23, 42 Atl. 249. brought: . . . Upon any con- 
 
 °" Fratcher v. Smith, 104 Mich, tract for the sale of lands, etc., or 
 
 537, 62 N. W. 832; Freeland v. Ritz, the making of any lease thereof for 
 
 154 Mass. 257, 28 N. E. 226. a longer term than one year from
 
 § 152] THE INSTRUMENT OF DEMISE. 188 
 
 be true where the statute excepts parol leases for a period of three 
 years and less. An oral lease for three years to commence in the 
 future would create an estate at will only.*'^*' It is equally clear that 
 ' where the exception is in favor of leases not exceeding the term of 
 one year from the time of entry, a parol lease for a year is valid, 
 though the term is to commence at a future date.*'''^ In other states 
 the statute on this point merely provides that parol leases for one 
 year shall be excepted without specifying whether the year is to be 
 reckoned from the time of entry or from the time of making the lease. 
 Where the words "from the making thereof" in an earlier act were 
 omitted from a later one, it has been held that the prohibition against 
 parol leases applied to the length of the term and not to the time of 
 beginning. So that a verbal lease to begin in futuro but not to last 
 more than a year from the time of beginning is not invalid.®''^ Is a 
 parol agreement to let real estate for the term of one year, to com- 
 mence in futuro, valid in law? Yes, it is, because when the legisla- 
 ture reduced the parol lease period from three to one year, it took 
 away the words "from the making thereof," and because the term 
 does not begin till the lessee obtains a right of possession. So a parol 
 lease or a parol agreement to lease for a term not exceeding one year 
 is valid without regard to the time when the term is to commence.*'''^ 
 But in statutes against frauds and perjuries there is a further pro- 
 vision that agreements not to be performed within a year from the 
 making thereof must be in writing. Such a provision would on its 
 face render a parol lease for a year to commence in the future in- 
 valid and unenforceable. To obviate this difficulty it is necessary to 
 follow the English doctrine that this clause does not apply to agree- 
 ments in regard to the sale of real estate.*'^* On this point, however, 
 the authorities do not agree.*^^^ Such an interpretation is not usual, 
 
 the making thereof, unless the App. Div. 627. Contra, Beiler v. 
 
 agreement shall be in writing." Devoll, 40 Mo. App. 251, under an 
 
 """Jennings v. McComb, 112 Pa. obsolete statute R. S. 1879, § 2513. 
 
 St. 518. See also, Schmitz v. Lan- Sears v. Smith, 3 Colo. 287; Huff- 
 
 ferty, 29 Ind. 400. man v. Starks, 31 Ind. 474; Sobey 
 
 '"Hillhouse v. Jennings, 60 S. v. Brisbee, 20 Iowa 105; McCroy v. 
 
 Car. 392, 38 S. E. 596. Toney, 66 Miss. 233, 5 So. 392. 
 
 ''=- Young V. Dake, 5 N. Y. 463, "'' Young v. Dake, 5 N. Y. 463. 
 overruling Croswell v. Crane, 7 ""^ Fall v. Hazelrigg, 45 Ind. 576; 
 
 Barb. 191; Goldberg v. Lavinski, 3 Cole v. Wright, 70 Ind. 179; Young 
 
 Misc. (N. Y.) 607, 22 N. Y. S. 552; v. Dake, 5 N. Y. 463; Lowman v. 
 
 Taggard v. Roosevelt, 2 E. D. Smith Sheets, 124 Ind. 416, 24 N. E. 351. 
 (N. Y.) 100; Becar v. Flues, 64 N. ""^ Mackey v. Potter, 34 Minn. 510, 
 
 Y. 518; Ward v. Hasbrouck, 169 N. 26 N. W. 906. 
 Y. 407, 62 N. E. 434, affirming 52
 
 189 
 
 STATUTE OF FRAUDS. 
 
 [§ 153 
 
 however, and in most states the provision against parol agreements 
 not to be performed within the space of one year is held to apply 
 whether the subject-matter be real or personal estate.*^^® 
 
 Where the finding was that a lease was executed on or about April 1, 
 and the term began on that date, it was held not to be objectionable 
 as a lease for a year to commence at a future date.^^' 
 
 § 153. Extent of validity. — Contrary to the rule in England, it 
 seems that the short term parol leases excepted from the operation 
 of the statute of frauds have been regarded by American courts as 
 valid for all purposes. Thus it has been held that a parol lease vests 
 a present interest in the term which is assignable before entry.'^"^ In 
 an action for rent under such a lease, it is not necessary to show that 
 the lessee occupied or used the demised premises."^^ The result of 
 this doctrine is to allow a recovery of damages for failure to give or 
 accept possession under a parol lease. "It is certainly as plain as 
 anytliing can be," said Judge Frazer, "that, under the statute, a parol 
 lease for a term not exceeding three years is valid, whether executed 
 by taking possession or not. There is no room for argument about 
 
 ''°'' White v. Levy, 93 Ala. 484, 9 
 So. 164; Wickson v. Monarch &c. 
 Mfg. Co., 128 Cal. 156, 60 Pac. 764; 
 Warner v. Hale, 65 111. 395; Creigh- 
 ton V. Sanders, 89 111. 543; Brow- 
 nell V. Welch, 91 111. 523; Green- 
 wood V. Strother, 91 Ky. 482, 16 S. 
 W. 138, 12 Ky. L. R. 352; White v. 
 Holland, 17 Ore. 3, 3 Pac. 573; Jel- 
 lett V. Rhode, 43 Minn. 166, 45 N. W. 
 13; Cram v. Thompson, 87 Minn. 
 172, 91 N. W. 483; Olt v. Lohnas, 
 19 111. 576; Wheeler v. Frankenthal, 
 78 111. 124; Wolf v. Dozer, 22 Kan. 
 436; Briar v. Robertson, 19 Mo. App. 
 66; Atwood v. Norton, 31 Ga. 507. 
 Michigan doctrine. Parol letting 
 for term not to exceed one year is 
 valid in Michigan, even though the 
 term is to commence in futuro, be- 
 cause it is a mere agreement to 
 lease which is performed by the 
 leasing, and so is not within a 
 clause which declares that con- 
 tracts not to be performed within 
 a year must be in writing. It seems 
 
 that under this rule the term must 
 end with two years. Tillman v. 
 Fuller, 13 Mich. 113; Whiting v. 
 Ohlert, 52 Mich. 462, 18 N. W. 219. 
 However, a parol lease of one year 
 with a privilege of three was held 
 invalid because of the statute of 
 frauds. The court reject the argu- 
 ment that the contract might be 
 performed within one year, and 
 would therefore be valid for that 
 period. It was "within the mis- 
 chief which the statute is designed 
 to prevent. The contract contem- 
 plated a lease for three years, and 
 so far as the lessor is concerned it 
 is absolute. ... It follows that 
 the agreement is void under the 
 statute." Hand v. Osgood, 107 Mich. 
 55, 64 N. W. 867. 
 
 "»' Mackey v. Potter, 34 Minn. 510, 
 26 N. W. 906. 
 
 ""^Becar v. Flues, 64 N. Y. 518. 
 
 ^'^ Mayer v. Lawrence, 58 111. App. 
 194.
 
 § 153] THE INSTRUMENT OF DEMISE, 190 
 
 that proposition; and it follows that the lease stated in the complaint 
 was a valid lease. By its terms, the lessee was to have possession of 
 the premises, and the lessor would be entitled to the rents. If bind- 
 ing upon one party, it was likewise binding on the other. If valid 
 as a lease, it must give the lessee the right to occupy the premises 
 according to its terms and conditions, and a remedy of some kind 
 for the privation of that right would follow. It is a solecism to 
 say that the contract was obligatory, and yet that it cannot in any 
 manner be enforced. What the remedy for its enforcement is, re- 
 mains the only question, then, necessary to the decision of the case 
 before us. It is a general proposition that one who is entitled to 
 the possession of real estate may recover such possession by a suit 
 for that purpose, and we know of no authority or reason for making 
 a lessee an exception to that rule. Possession is the specific thing 
 for which the lessee contracted and if the law will not give him that, 
 or damages for its privation, it is not perceived how the contract 
 can be held to be binding upon the lessor."^''*' 
 
 The distinction made by the English courts as to parol leases not 
 executed by transfer of possession has, however, been followed in 
 South Carolina. A lessee brought an action on a verbal lease for 
 a year to recover damages from his lessor for failure to carry out 
 the agreement and put the lessee in possession according to the terms 
 of the contract. It was held he could not recover.^"^ Yet, after a 
 lessee went into possession under a parol lease for a year and occupied 
 and paid rent for several months, he was held liable for rent for the 
 entire year, though he vacated the premises before the year ex- 
 pired.''*'^ The law is the same in Maryland where Judge Alvey stated 
 the rule as follows: ''The effect of the first, second and third sec- 
 tions of the Statute of Frauds, taken together, so far as they apply 
 to parol lease not exceeding three years from the making thereof, is 
 this, that the leases are valid and that whatever remedy can be had 
 on them in their character of leases, may be resorted to but they do 
 not confer the right to sue the lessee for damages for not taking pos- 
 session. And until entry by the lessee the whole estate and right of 
 possession remain in the lessor, the lessee having but an interesse 
 te7-m'kiij and nothing more."''°^ 
 
 ■"* Huffman v. Starks, 31 Ind. 474. ™= Hellams v. Patton, 44 S. Car. 
 
 Disapproving Stackberger v. Mos- 454, 22 S. B. 608. 
 
 teller, 4 Ind. 461, where in such a '"^ Union Banking Co. v. Gittings, 
 
 case it was held damages could not 45 Md. 181, 196. Quoted with ap- 
 
 be recovered. proval in Childers v. Talbott, 4 N. 
 
 ™' Davis V. Pollock, 36 S. Car. 544, Mex. 336, 16 Pac. 275. 
 15 S. E. 718.
 
 191 STATUTE OF FRAUDS. [§' 15i 
 
 A case on the border line was that where a parol agreement was 
 made to allow a tenant to enter after the expiration of his term to 
 harvest crops planted the preceding fall. The court held that if 
 the agreement was supported by sufficient consideration it was valid 
 because the interest created was for less than a year.'^^* After a lessee 
 has been in occupation under a parol lease for a period permitted by 
 the statute, an action can be brought to charge him on the lease.'^"^ 
 
 § 154. Duration of term. — Where a parol lease gives the lessee a 
 privilege of extension for a period beyond the statutory limit for 
 parol leases to run, the entire agreement is void. The original term 
 and the extension constitute but a single letting, and if the two ex- 
 ceed the prescribed period, the lease is invalid because not reduced 
 to writing.^*'® Still, in spite of previous decisions, the New York 
 Court of Appeals held that a lease by parol for four months with an 
 option for an extension for a period not exceeding three years at a 
 stipulated rental was valid as a lease for four months. The exist- 
 ence of the option did not render this agreement a lease for a longer 
 period than four months as it might not be exercised and it was en- 
 tirely possible for the lease to terminate at the end of the definite 
 period agreed upon.'^"^ The reason assigned by the court was that, 
 the statute does not include an agreement which is not likely or is- 
 not expected to be performed within a year, if, when fairly and reason- 
 ably interpreted, it admits of a valid execution within that time, al- 
 though it may not be probable that it will be.'^*'^ But the failure 
 to notify in writing of an election to extend, given by a written lease, 
 does not render the extension bad because of the Statute of Frauds. 
 The theory is that the entire term, including the extension, is created 
 by the original written instrument.'^*'® 
 
 A lease of real estate until such time as lessor pays lessee a certain 
 
 '»*Ladd V. Brown, 94 Mich. 136, 24 Barb. (N. Y.) 525; Kramer v. 
 
 53 N. W. 1048. Cook, 7 Gray (Mass.l 550; Voege 
 
 '"^'Lowman v. Sheets, 124 Ind. v. Ronalds, 83 Hun 114, 31 N. Y. 
 
 416, 24 N. E. 351. S. 353. 
 
 "»Schmitz V. Lauferty, 29 Ind. '"Ward v. Hasbrouck, 169 N. Y. 
 
 400; Hand v. Osgood, 107 Mich. 55, 407, 62 N. E. 434, affirming 52 App. 
 
 64 N. W. 867; Holzderber v. For- Div. 627. 
 
 restal, 13 Daly (N. Y.) 34; Carling '"'Warren &c. Mfg. Co. v. Hol- 
 
 V. Purcell, 19 N. Y. S. 183, 46 N. Y. brook, 118 N. Y. 586, 593, 23 N. E. 
 
 St. 287; Rosen v. Rose, 13 Misc. 908; Kent v. Kent, 62 N. Y. 560. 
 
 565, 68 N. Y. St. 370, 2 Ann. Cas. ™ Zillig, Matter of, 13 N. Y. St. 
 
 194, 34 N. Y. S. 467; Chretien v. 891. 
 Doney, 1 N. Y. 419; House v. Burr,
 
 §§ 155, 156] THE INSTRUMEXT OF DEMISE, 193 
 
 indebtedness, is neither an agreement that is not by its terms to be 
 performed within a year from the making thereof, nor an agreement 
 for a leasing for a longer period than one year and is not required to 
 be in writing. ''^° In another ease the question arose whether a parol 
 lease for one year, with an agreement that the tenant might sow the 
 land in wheat, gave him the right to enter after the expiration of the 
 year and harvest the crops. It was held that the right to enter and 
 reap was an interest in lands and that to sustain the lease would be 
 to extend a parol lease over a period of two years, which was for- 
 bidden by the statute of frauds.'^^^ 
 
 § 155. Whether void only as to excess. — A parol lease for a period 
 of so great duration that it is rendered unenforceable by the statute 
 of frauds cannot be considered good for the period during which a 
 parol lease would be valid and void only as to the remainder. How- 
 ever, where a tenant enters and occupies under a lease which cannot 
 take effect because of the statute of frauds, it will usually result in 
 a tenancy from year to year.'^^^ This distinction has an important 
 bearing on the rights of the parties even where the period of parol 
 leases is set at one year. In the face of specific statutory provision 
 that certain parol leases are void, a court does not seem justified in 
 saying that while such a lease cannot be enforced according to the 
 terms agreed upon by the parties, it is a valid lease for one year, 
 three years or five years, as the case may be. After the lessee enters 
 into possession and pays some aliquot part of an annual rent, the 
 general doctrine of tenancy from year to year is applicable.^^^ Yet 
 it has been held that such a lease is a valid demise for a year certain, 
 being void only as to the excess of the term beyond the time per- 
 mitted for parol leases by the statute.'^^* 
 
 § 156. Sufficiency of memorandum. — If a statute reads that no es- 
 tate or interest in lands can be created or conveyed without writing 
 but an estate at will, it is immaterial how the existence of a tenancy 
 is shown, whether by parol evidence, or by written instruments, as 
 receipts for rent, or the like; the right of the tenant, whatever might 
 seem to be the actual contract of the parties, is nothing but a tenancy 
 at will unless it can be shown that some other or higher interest or 
 
 ^"Raynor v. Drew, 72 Cal. 307, "= Carey v. Richards, 4 W. L. M.' 
 13 Pac. 866. (Ohio) 251, 2 Ohio Dec. R. 630. 
 
 '" Carney v. Mosher, 97 Mich. 554, ™ Hosli v. Yokel, 58 Mo. App. 169. 
 56 N. W. 935. "^ Friedhoff v. Smith, 13 Neb. 5, 
 
 12 N. W. 820. 
 
 \
 
 193 STATUTE OF FRAUDS. [§ 15G 
 
 estate, as a tenancy at life or for years, was created or conveyed by 
 writing. ■^^^ Thus written receipts for rent were held not to take 
 a parol lease out of the statute of frauds because the statute required 
 that the estate be created or conveyed by a writing and the rent re- 
 ceipts merely went to the matter of proof of the existence of the 
 term. The natural interpretation of such words is that the writing 
 required for the creation of an interest in land is more than a memo- 
 randum of the constituent act ; that it is itself the constituent act. It 
 seems clear that the writing must have a part at least in the creation 
 of the estate. The statute is not dealing with promises, in which 
 case it would naturally be directed only to the rights of the parties 
 to the contract, but with estates, which are interests in rem, good 
 against all the world. It therefore is dealing with the rights of all 
 the world, and when it says that an estate created without writing 
 shall have the effect of an estate at will only, it affects the reciprocal 
 rights of the tenant and of any one else who may be concerned in the 
 nature of that estate.'^^® 
 
 In regard to all sections of the statute of frauds the general rule 
 is that the memorandum in writing required to satisfy the statute 
 must contain all the essential terms of the contract, so that the court 
 can ascertain the rights of the parties from the writing itself without 
 resorting to oral testimony. Therefore an auctioneer's memorandum 
 in which the purchaser agrees to fulfil all the conditions of the sale, 
 such conditions having been stated orally by the auctioneer, is not 
 sufficient. The difficulty is that the contract is partly in writing 
 and partly by parol. A memorandum which does not state the term 
 or duration of a proposed lease does not satisfy the statute of frauds, 
 because those omissions cannot be supplied by parol.''" The date 
 of a lease for years, the remaining time it has to run, is obviously 
 an essential item in the description of the interest created by it. 
 Without that being fixed, the whole interest under the lease is inde- 
 terminate. It is an essential element of the contract and must be 
 completely stated in the memorandum.'^^^ 
 
 A ratification of a parol lease of land for a term of more than 
 three years, to avoid the effect of the statute of frauds, must be signi- 
 fied by writing. This ratification cannot be made by the original 
 lessor after he has conveyed his. title to another. After the property 
 
 "'Whitney v. Swett, 22 N. H. 10. "* Riley v. Farnsworth, 116 Mass. 
 
 "'Emery v. Boston Terminal Co., 223; Kingsley v. Siebrecht, 92 Me. 
 178 Mass. 172, 59 N. B.' 763. 23, 31, 42 Atl. 249. 
 
 '" Parker v. Tainter, 123 Mass. 
 185. 
 
 Jones L. & T.— 13
 
 §■ 157] THE IXSTRU:\IEXT OF DEillSE, 19-i 
 
 had been disposed of, any act of the lessor would be ineffectual to 
 create a term which did not previously exist." ^^ It seems to be set- 
 tled in England with regard to sales of chattels under the seventeenth 
 section of the statute of frauds, that the memorandum does not re- 
 troact so as to affect third persons. '-° It does not effect this result 
 that an act satisfying this section of the statute relates back to the date 
 of the oral contract as between the parties.'-^ 
 
 § 157. Authority of agent. — The acts which require that certain 
 interest in land shall only be created or transferred by writing usually 
 provide further that agents who undertake to execute such con- 
 tracts must be authorized in writing.'^- When this requirement for 
 written authorization is omitted from the act, as was the case in an 
 early statute in Illinois, since repealed, it seems that authority con- 
 ferred upon the agent by parol would be valid, since the common law 
 required no formalities for the creation of agents.'^^^ But if the 
 lease itself need not be in writing, as where it is for a year only, the 
 power of an agent to execute it need not be expressed in writing, 
 because such a contract is not included in the terms of the statute."-* 
 It has been held, moreover, that an oral ratification is good though 
 a previously conferred document must be by written instrument.'^-^ 
 This decision was based on the proposition that a simple contract in 
 writing made without authority is susceptible of oral ratification, 
 which was laid down by Lord Chief Justice Best in an early case, as 
 follows : ''It has been argued that the subsequent adoption of the 
 contract will not take this case out of the statute of frauds; and it 
 has been insisted that the agent should have his authority at the 
 time the contract is entered into. If such had been the intention 
 of the legislature, it would have been expressed more clearly . . . 
 in all other cases, a subsequent sanction is considered the same thing in 
 effect as assent at the time. And in my opinion, the subsequent 
 
 "» Dumn V. Rothermel, 112 Pa. St. ^^ Borderre v. Den, 106 Cal. 594, 
 
 272, 3 Atl. 800; Emery v. Boston 39 Pac. 946; Judd v. Arnold, 31 
 
 Terminal Co., 178 Mass. 172, 59 N. Minn. 430, 18 N. W. 151; Hoover 
 
 E. 763; Whiting v. Massachusetts &c. Co. v. Pacific Oil Co., 41 Mo. 
 
 &c. Ins. Co., 129 Mass. 240, 241. App. 317; Folsom v. Perrin, 2 Cal. 
 
 ""Coats V. Chaplin, 3 Q. B. 483, 603. 
 
 486, 43 E. C. L. 831; Stockdale v. "=^ Lake v. Campbell, 18 111. 106. 
 
 Dunlop, 6 M. & W. 224, 233; Felt- ™ Gilson v. Boston, 11 Nev. 413; 
 
 house V. Bindley, 11 C. B. (N. S.) Hoover &c. Co. v. Pacific Oil Co., 
 
 869, 877. 41 Mo. App. 317. 
 
 '" Leadlay v. McRoberts, 13 Ont. ''=^ Bless v. Jenkins, 129 Mo. 647, 
 
 App. 378, 383. 31 S. W. 938.
 
 195 STATUTE OF FRAUDS. [§ 158 
 
 sanction of a contract signed by an agent takes it out of the opera- 
 tion of the statute more satisfactorily than an authority given be- 
 forehand.""« 
 
 On the other hand there are cases holding a ratification must be in 
 writing to be valid. Where the owner of land ratified the unauthor- 
 ized act of his agent in executing a lease for one year with option of 
 four more by receiving rent paid under the terms of the lease, this 
 did not render the term valid for five years, because the ratification, 
 to be effective, must be in writing."^ An estate at will only is created 
 by such circumstances which becomes a tenancy from month to month 
 upon payment of a monthly rent. Under such circumstances, how- 
 ever, a guarantor of rent has been held liable for payment of rent 
 in the manner in which the lease eventually took effect."* Where 
 an agent assumes to execute a lease in excess of his authority, and the 
 principal enters and pays rent, this will create a tenancy from year 
 to year.''^-'* 
 
 A lease, executed by agents without authority in writing, was held 
 to be ratified by a subsequent conveyance of the property by the owners 
 by a deed which excepted the outstanding lease. The language in 
 question meant that the premises had come to the grantor and were 
 conveyed by him, subject to a lease in favor of the person then oc- 
 cupying the premises. The terms of the deed and the relationship 
 of the parties when it was executed, present substantial evidence of 
 such affirmance of the lease as cured the want of written authority 
 on the part of the agents who signed it.^^*^ 
 
 § 158, Leases by undisclosed principals. — The rule that a princi- 
 pal may sue in his own name upon a contract made with his agent 
 applies to cases of sales by written bills or other memoranda made 
 by the agent, using his own name, and disclosing no principal, the 
 same as in cases of oral contracts.'^^^ The statute of frauds does not 
 change the law as to the rights and liabilities of principals and 
 agents, either as between themselves, or as to third persons. The 
 
 "•'Maclean v. Dunn, 4 Bing. 722. 23, 42 Atl. 249; Tainter v. Lombard, 
 
 "-'Williams v. Mershon, 57 N. J. 53 Me. 369; Eastern R. Co. v. Bene- 
 
 Law 242, 30 Atl. 619. diet, 5 Gray (Mass.) 561; Barry v. 
 
 "« Lehman V. Nolting, 56 Mo. App. Page, 10 Gray (Mass.) 398; Win- 
 
 549. Chester v. Howard, 97 Mass. 303; 
 
 "^Hoover &c. R. Co. v. Pacific Oil Sims v. Bond, 5 B. & Ad. 389, 393; 
 
 Co., 41 Mo. App. 317. Huntington v. Knox, 7 Cush. 
 
 ™ Christopher v. National &c. Co., (Mass.) 371; Exchange Bank v. 
 
 72 Mo. App. 121. Rice, 107 Mass. 37; Byington v. 
 
 ™Kingsley v. Siebrecht, 92 Me. Simpson, 134 Mass, 169.
 
 § 159] THE INSTRUMENT OF DEMISE. 19G 
 
 provisions of the statute are complied with if the names of competent 
 contracting parties appear in the writing, and if a party be an agent, 
 it is not necessary that the name of the principal be disclosed in the 
 writing. Indeed, if a contract, within the provisions of the statute, 
 be made by an agent, whether the agency be disclosed or not, the 
 principal may sue or be sued as in other cases. '^^ 
 
 § 159. Effect of part performance of a parol lease. — Without pass- 
 / ing on the question as to what can be considered as part performance 
 of a lease, the general distinction made between courts administering 
 law and those governed by equitable principles should be noticed. 
 According to the weight of authority, part performance by either 
 party- will not render a parol lease valid in a court of law; but courts 
 of equity will take jurisdiction to enforce a parol lease when it 
 would be fraudulent on the part of a defendant to avail himself of the 
 statute. '^^^ However the point may be confused by the mingling of 
 law and equity, the principle seems clear that a part performance of 
 the contract does not, at law, take the case out of the operation of 
 the statute of frauds.'^''* In an early Iowa case this distinction be- 
 tween law and equity was brought out. "We are not required," said 
 the court, "to state what a court of equity would do under the circum- 
 stances, but a court of law is confined to the provisions of the statute, 
 with which it io nut at liberty to dispense, unless the party brings 
 himself clearly within some of the exceptions therein specified."^^^ 
 It was further held in that state that an express statutory excep- 
 tion of parol contracts to purchase under certain circumstances did 
 not extend to parol leases.'^^*' The effect of this exception which 
 
 "' Thayer v. Luce, 22 Ohio St. 62 
 Pugh v. Chesseldine, 11 Ohio 109 
 Dykers v. Townsend, 24 N. Y. 57 
 
 138; Manning v. Franklin, 81 Cal. 
 
 205, 22 Pac. 550; Eaton v. Whltaker. 
 
 18 Conn. 222; Marr v. Ray, 151 111. 
 Kingsley v. Siebrecht, 92 Me. 23, 340, 37 N. E. 1029; Smelling v. Val- 
 42Atl. 249; Lerned v. Johns, 9 Allen ley, 103 Mich. 580, 61 N. W. 878; 
 (Mass.) 419; Hunter v. Giddings, Wallace v. Scoggins, 17 Ore. 476, 21 
 97 Mass. 41; Williams v. Bacon, 2 Pac. 558; s. c. 18 Ore. 502; Utah L. 
 Gray (Mass.) 387; Salmon Falls & T. Co. v. Garbutt, 6 Utah 342, 23 
 . Mfg. Co. v. Goddard, 14 How. (U. Pac. 758. 
 S.) 446; Browne on Statute of ™ Creighton v. Sanders, 89 111. 
 Frauds, § 373; 3 Parsons on Con- 543; Brownell v. Welch, 91 111. 523; 
 tracts, 5 ed., p. 10, § 660. Warner v. Hale, 65 111. 395. 
 
 ^"Morrison v. Peay, 21 Ark. 110; '^ Hunt v. Coe, 15 Iowa 197. 
 Brockway v. Thomas, 36 Ark. 518; "* Thorp v. Bradley, 75 Iowa 50, 
 Johnson v. Branch, 48 Ark. 535, 3 S. 39 N. W. 177; Burden v. Knight, 82 
 W. 819; McCarger v. Rood, 47 Cal. Iowa 584, 48 N. W. 985.
 
 197 STATUTE OF FRAUDS. [§ 160 
 
 docs not apply to leases has ijcen held to be that even in equity the 
 doctrine that part performance takes the case out of the statute 
 cannot be recognized.^^^ Such part performance of a parol agree- 
 ment to lease that it could be enforced in equity does not furnish 
 a defense at law in the absence of any such action by a court of 
 equity. '^^ A lessee is not without remedy, however, even though his 
 parol lease is not rendered valid by part performance. If one party 
 in consideration of an agreement which is within the statute of frauds, 
 and which the other party declined to carry out, expends money in 
 building on his land, the one building may maintain an action to re- 
 cover the cost of such building. '^^^ 
 
 There are cases, however, which hold that part performance of a 
 parol lease for more than the permitted period will make it valid at 
 law. One of these cases was an action for rent during the unexpired 
 term. The counsel did not bring out the difference in the tenant's 
 rights in law and in equity but argued that part performance would 
 not avail h.im in either tribunal, and the court cited as authority 
 equity cases.^*° In another the action was forcible detainer by the 
 landlord and it was probably open to the defendant to set up equi- 
 table defenses to such an action. The latter case was a strong one, as 
 the tenant had made many valuable improvements and the landlord 
 had recognized his right to the premises during the major part of the 
 term.^" 
 
 § 160. In order to amount to part performance, an act must be un- 
 equivocally referable to the agreement; and the ground on which 
 courts of equity have allowed such acts to exclude the application of 
 the statute, is fraud. A party who has permitted another to perform 
 acts on the faith of an agreement, shall not insist that the agreement 
 is bad, and that he is entitled to treat those acts as if it had never 
 existed. That is the principle, but the acts must be referable to the 
 contract. Between landlord and tenant, when the tenant is in pos- 
 session at the date of the agreement and only continues in possession, 
 
 '"Powell V. Crampton, 102 Iowa '"Bard v. Elston, 31 Kan. 274, 1 
 
 364, 71 N. W. 579. Pac. 565. In Wilber v. Paine, 1 Ohio 
 
 ™ Petsch v. Biggs, 31 Minn. 392, 18 251, a parol lease was rendered valid 
 
 N. W. 101. by part performance so as to enable 
 
 739 Parker v. Tainter, 123 Mass. an assignee of the lessee to main- 
 
 185; Kidder v. Hunt, 1 Pick. (Mass.) tain an action of tort against the 
 
 328; White v. Wieland, 109 Mass. landlord for a conversion of the 
 
 291; Dix v. Marcy, 116 Mass. 416. crop. 
 
 •'"Grant v. Ramsey, 7 Ohio St. 
 157; Wilber v. Paine, 1 Ohio 251.
 
 160] 
 
 THE INSTRUMENT OF DEMISE. 
 
 198 
 
 it is properly observed that in many eases that continuance amounts 
 to nothing; but admission into possession, having unequivocal refer- 
 ence to contract, has always been considered an act of part perfor- 
 mance. The acknowledged possession of a stranger to land of another 
 is not explicable except on the supposition of an agreement, and has 
 therefore constantly been received as evidence of an antecedent con- 
 tract and as suflBcient to authorize an inquiry into the terms.'^*^ In 
 equity, therefore, leases may be taken out of the statute of frauds by 
 part performance; and a transfer of possession may be such part per- 
 formance.^*^ This is strengthened where, in addition to a transfer of 
 possession, rent is paid and accepted under the lease.''** So it has 
 been held that delivery of possession to a tenant, continued occupation 
 by him and payment of rent according to terms of agreement, are 
 sufficient to take an agreement to give a lease out of the statute of 
 frauds.^*^ 
 
 In reliance on an oral agreement for a five-year lease, tenants went 
 ahead and made valuable improvements. This was such a part per- 
 formance that the agreement could be enforced in equity.'^*® It con- 
 stituted a sufficient part performance to take a parol lease out of the 
 statute of frauds for the lessee to clear a part of the land,''*' for him 
 to enter upon and cultivate the land,''*^ and for him to make per- 
 manent improvement on the leased premises,''*^ such as planting 
 shrubbery on the premises and fitting expensive carpets to the floors 
 of the leased house.'^" Where one who is already in possession of 
 land as tenant verbally contracts with the owner for a new term, his 
 merely continuing in possession after the making of the alleged con- 
 tract is not an act of taking possession within the meaning of the 
 
 I 
 
 '"Morphett v. Jones, 1 Swanst. 
 172; Earl of Aylesford's Case, 2 Str. 
 783; Morrison v. Peay, 21 Ark. 110; 
 Johnson v. Branch, 48 Ark. 535, 3 S. 
 W. 819. 
 
 ''^ Hodges v. Howard, 5 R. I. 149, 
 158; Simmons v. Simmons, 12 Jur. 
 8, 6 Hare 352; Wiley's Estate, 6 W. 
 N. Cas. 208; Weddall v. Capes, 1 M. 
 & W. 50; Huron v. Kerr, 15 Grant 
 Ch. 265. 
 
 '** Grant v. Ramsey, 7 Ohio St. 
 157; Butler v. Powis, 2 Coll. 156, 
 161; Wiley's Estate, 6 W. N. Cas. 
 208. 
 
 '« Eaton V. Whitaker, 18 Conn. 
 222. 
 
 '"Morrison v. Herriek, 27 111. 
 App. 339. 
 
 '"Smelling v. Valley, 103 Mich. 
 580, 61 N. W. 878. 
 
 '^^McCarger v. Rood, 47 Cal. 138; 
 Manning v. Franklin, 81 Cal. 205, 
 22 Pac. 550. 
 
 '"Morrison v. Peay, 21 Ark. 110; 
 Johnson v. Branch, 48 Ark. 535, 3 S. 
 W. 819; Brockway v. Thomas, 36 
 Ark. 518; Wilber v. Paine, 1 Ohio 
 251. 
 
 '■"^Wallace v. Scoggins, 17 Ore. 
 476, 21 Pac. 558; s. c. 18 Ore. 502.
 
 199 STATUTE OF FRAUDS. [§§ 161, 162 
 
 rule so as to justify a decree for a lease according to the contract."^ 
 It is a recognized principle in the doctrine of part performance of 
 oral contracts that mere continuation in possession is not such part 
 performance of an oral lease as will justify a court of equity in mak- 
 ing a decree for specific performance."^ ^^ 
 
 Part payment of purchase money does not take a parol agreement 
 for a sale of real estate out of the statute. A sufficient reason for this 
 is found in the fact that a provision to this effect in regard to sales 
 of chattels is found in the statute of frauds; but is omitted from 
 sections covering transfers of real property. It follows as a result of 
 this doctrine that payment of rent or even prepayment will not take 
 a parol lease out of the statute.'^^^ 
 
 § 161. In Alabama the effect of part performance is regulated by 
 statute. Part performance by transfer of possession and payment 
 of rent in the manner stated in the statute will operate to save every 
 parol lease of land, otherwise valid, from the vitiating effect of the 
 statute, whether, by its terms, the enjoyment of the demised premises 
 is to begin in praesenti or in futuro, and no matter whether the period 
 of the lease be one year or twenty. It must be considered as definitely 
 settled in that state that whether the parol be for more than one year 
 or for a year to begin at a future date, taking possession under the 
 contract and part payment of the rent will render the agreement in 
 all respects as valid as if it had been reduced to writing and duly 
 signed by the parties. ^^* 
 
 § 162. There is a very obvious difference between a parol agree- 
 ment to make a written lease and a parol lease with a further or in- 
 cidental agreement that it shall be put in writing. In one case the 
 making of the writing is the subject of the agreement and only that 
 can execute it ; in the other the subject is the act or fact of present 
 
 '"^Wilmer v. Farris, 40 Iowa 309; '"^ gpaitjjng y. Conzelman, 30 Mo. 
 
 Anderson v. Simpson, 21 Iowa 399; 177. 
 
 Mahana v. Blunt, 20 Iowa 142; Bil- '^^Brockway v. Thomas, 36 Ark. 
 
 lingslea v. Ward, 33 Md. 48; Rosen- 518; Webster v. Blodgett, 59 N. H. 
 
 thai V. Freeburger, 26 Md. 75; Cole 120; Townsend v. Sharp, 2 Tenn. 
 
 V. Potts, 10 N. J. Eq. 67; Armstrong 192. 
 
 V. Kattenhorn, 11 Ohio 265; Green- ™ A. G. Rhodes &c. Co. v. Weeden, 
 
 lee V. Greenlee, 22 Pa. St. 225; Ait- 108 Ala. 252, 19 So. 318; Shakespeare 
 
 kin V. Young, 12 Pa. St. 15; Wilde v. Alba, 76 Ala. 351; Martin v. 
 
 V. Fox, 1 Rand. (Va.) 165; Johnston Blanchett, 77 Ala. 288; Eubank v. 
 
 V. Glancy, 4 Blackf. (Ind.) 94. May &c. Co., 105 Ala. 629, 17 So. 
 
 109.
 
 §' 162] THE INSTRUMENT OF DEMISE. 200 
 
 leasing and its subsequent reduction to writing is incidental only.'^^ 
 A landowner agreed by parol to lease land to another for a term of 
 years, to begin in the future, and agreed at the same time to put/ 
 such parol contract in writing but no consideration passed between 
 the parties. It was held that either party could disregard the parol 
 contract. When the lessee went on the land at the commencement of 
 the term named in the parol agreement without the request of the 
 lessor, his possession thus obtained would not give him any rights 
 under such parol contract. The parol contract was void, and unless 
 it was partly performed by one of the parties at the request of the 
 other it created no obligation.^^^ The proposed lease was within the 
 statute of frauds ; hence the parol agreement to lease could give it no 
 force, and to predicate anything whatever of that intended lease was 
 error. Either party had a right to refuse its execution and the de- 
 fendant was guilty of no fraud in availing himself of that right."^ 
 Not only was the lease within the statute of frauds but the agreement 
 itself was within that statute because it purported to transfer an inter- 
 est in land. When a party to a parol agreement for a lease seeks to en- 
 force it specifically in equity, he can rely on the equitable doctrine of 
 part performance to take the parol agreement out of the statute of 
 frauds. The distinct ground upon which courts of equity interfere in 
 cases of this sort is that otherwise one party would be able to practice a 
 fraud upon the other. The property owner can enforce the agreement 
 when he has been led to do acts upon the faith of it with the knowl- 
 edge and acquiescence of the other party.^^^ In one case the lessor 
 explicitly refused to make a verbal lease, and it was mutually agreed 
 that a lease on certain specified terms should be made in writing. 
 Under these circumstances entry into possession by the lessee was not 
 sufficient to show that the verbal agreement for a written lease was 
 of itself a lease in praesenti which could be taken out of the statute 
 by part performance. To give this construction to the agreement 
 would be to bind the lessor by a verbal lease when he refused to make 
 one. The verbal contract may be a valid agreement for a written 
 lease, for a breach of which an action for damages might, under cer- 
 tain circumstances, lie, but it is not of itself a lease in praesenti.'' ^^ 
 
 "' Grigsby v. Western &c. Tel. Co., '°* Seaman v. Ashchermann, 51 
 5 S. Dak. 561, 59 N. W. 734. Wis. 678, 8 N. W. 818. 
 
 '°» Pulse v. Hamer, 8 Ore. 251. "" Potter v. Mercer, 53 Cal. 667. 
 
 '" Sausser v. Steinmetz, 88 Pa. St. 
 324.
 
 201 
 
 RECORDING. 
 
 [§ 163 
 
 XI. Recording. 
 
 § 163. Statutory provisions. — Statutes regarding the requirements 
 for recording transfers of real estate vary in phraseology. A common 
 form is to require that all transfers be recorded to be good against 
 subsequent purchasers for value except leases for a short period. This 
 period is usually fixed at one year, though an exception in favor of 
 leases for a term of three years is not unusual and in some states the 
 period is longer.^^" In other statutes no mention is made of leases 
 eo nomine but the expression is that transfers of any interest in land 
 must be recorded. Such general language seems to include leases 
 without regard to the length of the term.''" In California the form 
 of the statute is that all conveyances of land must be recorded.'^^ In 
 construing this act it was held that a lease for five years was a convey- 
 ance of the land within the definition of the code and the interest in 
 the land which was thereby created in the lessee, though limited ta 
 a right to take the profits of the land, was void as against a pur- 
 
 '*" Leases for more than one year 
 are not valid without being recorded 
 in California, Connecticut, Florida, 
 Hawaii, Idaho, Montana, Nebraska, 
 North Dakota, Oklahoma, South 
 Carolina, South Dakota, Vermont. 
 Leases for more than two years are 
 not valid without being recorded in 
 Rhode Island. Leases for more than 
 three years are not valid without 
 being recorded in Indiana, New 
 York, North Carolina, Ohio, Ten- 
 nessee, Wisconsin, Wyoming. Leases 
 for more than five years are not 
 valid without being recorded in 
 Kentucky, Virginia, West Virginia. 
 Leases for more than seven years 
 are not valid without being recorded 
 in Maine, Maryland, Massachusetts, 
 New Hampshire. Leases for more 
 than twenty-one years are not valid 
 without being recorded in Delaware, 
 Pennsylvania. A lease for less than 
 twenty-one years, when accompanied 
 by possession by the lessee, need 
 not be recorded, Williams v. Down- 
 ing, 18 Pa. St. 60. In Louisiana the 
 rule is that an unrecorded act of 
 
 lease of real estate produces no legal 
 effect as to third persons. Anderson 
 V. Comeau, 33 La. Ann. 1119. For- 
 merly in North Carolina a lease of 
 land for a term of years need not 
 be registered. Burnett v. Thompson,. 
 3 Jones L. (N. Car.) 113; Wall v. 
 Hinson, 1 Ired. L. (N. Car.) 276. 
 See, Rev. Code Ch. 37, § 26, requir- 
 ing that leases which must be in 
 writing must be registered. In 
 Washington all deeds must be re- 
 corded (Ballinger's Am. Codes 1897, 
 § 4535) and all conveyances of any 
 interest in real estate shall be by 
 deed (Ibid. § 4517) except that 
 leases for any term not exceeding 
 one year are valid without acknowl- 
 edgement or seal. 
 
 '"* Such seems to be the case in 
 Alabama, Arkansas, Arizona, Alaska, 
 Colorado, Georgia, Iowa, Illinois, 
 Kansas, Michigan, Minnesota, Mis- 
 sissippi, Missouri, Nevada, New Mex- 
 ico, Oregon, Texas. 
 
 '«=^Garber v. Gianella, 98 Cal. 527, 
 33 Pac. 458.
 
 163] 
 
 THE INSTRUMENT OF DEMISE. 
 
 203 
 
 chaser by reason of the failure to have it recorded as if it had been an 
 unrecorded conveyance in fee.'^*'^ The rule was the same though the 
 lease was determinable on thirty days' notice by either party.^^* . 
 However, where the owner of land, after conveying the title to the fee 
 leased it to a third person for a year, the lessee was not considered as 
 a purchaser under it, without notice. This lease was not a convey- 
 ance within the meaning of the statute and the lessee could not ac- 
 quire any better right to hold the premises than the lessor had.^*'^ 
 
 In New Jersey a lessee is given the privilege of recording certain 
 leases, but is no worse off than he would be at common law if he 
 fails to do soJ®*' In Louisiana a lessee who has paid rent in advance 
 must record his lease to protect himself against a transferee of the re- 
 version. The latter would be entitled to collect the rent reserved.'^" 
 
 In Kentucky the period for which an unrecorded lease is valid is 
 set at five years and a lease of land not exceeding five years is good 
 without being recorded even against a judgment creditor of the land- 
 lord.^^® But an unrecorded lease for the term of ten years cannot 
 be supported for five years on the ground that the statute only re- 
 quires leases for more than five years to be recorded.'^^^ 
 
 The question suggests itself as to whether the exception in the stat- 
 ute of frauds in favor of short term parol leases would not operate 
 as an exception from the requirement for recording even when no 
 express exception is made in the recording statute. Such a question 
 could only arise in a limited number of states. Some foundation for 
 such an opinion is found in a case where an indictment was brought 
 for failure to comply with a requirement as to the recording of a rail- 
 road lease. The indictment failed to allege that the lease was 'm 
 
 "^Commercial Bank v. Pritchard, 
 126 Cal. 600, 59 Pac. 130. 
 
 ''"Commercial Bank v. Pritchard, 
 126 Cal. 600, 59 Pac. 130. 
 
 "^ Topping v. Parish, 96 Wis. 378, 
 71 N. W. 367, Rev. St. of Wis., 
 § 2242. 
 
 766 jjg^ Jersey: The registry acts 
 do not apply to leases. The first in 
 date stands first in point of right. 
 Leases under seal for a term not 
 less than two years, acknowledged 
 or proved, may be recorded (Rev. p. 
 157, § 19), but the statute which 
 authorizes this to be done imposes 
 no penalty for not doing it. Hodge 
 V. Giese, 43 N. J. Eq. 342, 11 Atl. 
 
 484; Hutchinson v. Bramhall, 42 N. 
 J. Eq. 372, 7 Atl. 873. See, Gen. St. 
 of N. J. 1895, p. 857, § 19. By the 
 P. L. of 1898, p. 670, leaseholds for 
 not less than two years are author- 
 ized to be recorded. So a mortgage 
 of a ten year leasehold should be re- 
 corded as a mortgage affecting real 
 estate. Lembeck &c. Co. v. Kelly, 63 
 N. J. Eq. 401, 51 Atl. 794. 
 
 '"Anderson v. Comeau, 33 La. 
 Ann. 1119. 
 
 '«« Locke V. Coleman, 4 T. B. Mon. 
 (Ky.) 315, 321; Casey v. Gregory, 
 13 B. Mon. (Ky.) 505. 
 
 "^Clift v. Stockdon, 4 Litt. (Ky.) 
 215.
 
 203 RECORDING. [§ 164 
 
 writing and was held bad in consequence because of the obvious im- 
 possibility of recording an oral lease."" Nevertheless it appears to be 
 quite certain that the obligation to record a lease to afEect the rights 
 of a third person could not be avoided by leaving the lease in parol 
 instead of reducing it to writing. It might very consistently be 
 held that a lease which was good between the parties though not in 
 writing, must be put in writing and recorded to be valid against a 
 bona fide purchaser for value. Such seems to be the effect of the 
 statutes in certain states. 
 
 The statutes which require that leases to run for more than a cer- 
 tain term shall be recorded, usually attach no condition as to transfer 
 of possession in order that a lease for a shorter term shall be valid 
 without being recorded."^ So the requirement as to the value of the 
 rent reserved which is sometimes made necessary to render a parol 
 lease valid is not generally made a condition on which an unrecorded 
 lease will take effect.'^^^ 
 
 A lease of growing trees for the purpose of gathering turpentine 
 therefrom is a conveyance of an interest in real estate which must be 
 recorded.^'^ 
 
 § 164. Validity of unrecorded instruments. — It is clear that an un- 
 recorded deed or lease conveys a title as between the parties.'^* It 
 has further been declared that the statutes relative to recording were 
 not intended to protect persons who claim no right, title, or inter- 
 est in the premises conveyed by the unrecorded instrument."^ A 
 lease in due form of law, and in all respects complete and perfect was 
 objected to because it had not been recorded in the records of the 
 town in which the premises lay. It was insisted that it was by the 
 statute declared to be absolutely void except as to the lessors; the 
 parties thus insisting claimed nothing under the lessors, and were 
 not deceived or in any way injured by the lease, but asserted that it 
 
 ""Commonwealth v. Chesapeake of Del. Rev. Code 1852 as amended 
 
 &c. R. Co., 101 Ky. 159, 40 S. W. 250. 1893. 
 
 '" In Pennsylvania possession '" Miliken v. Faulk, 111 Ala. 658, 
 
 must accompany the unrecorded 20 So. 594. 
 
 lease to render it valid. Pepper & "* Dole v. Thurlow, 12 Mete. 
 
 ] 9wis Dig. of Laws of Pa., p. 1568, (Mass.) 157; Earle v. Fiske, 103 
 
 § 90. Mass. 491; Smythe v. Sprague, 149 
 
 '"' In Delaware a fair rent must be Mass. 310, 21 N. E. 383. 
 
 reserved and possession must be '" Anthony v. New York &c. R. Co., 
 
 taken by the tenant in order that an 162 Mass. 60, 37 N. E. 780; Beach v. 
 
 unrecorded lease for twenty-one Morgan, 67 N. H. 529, 41 Atl. 349. 
 years be valid. Ch. 83, § 17, Laws
 
 § 164] THE INSTRUMENT OF DEMISE. 204 
 
 was imperfect and void. The answer was that the instrument was not 
 imperfect and void. It had every legal requisite of a conveyance. 
 Kecording is no part of the conveyance itself and to allow a stranger 
 who has no manner of interest in the question to set up a statute, 
 which requires deeds and leases to be recorded, merely to give public 
 notice that creditors and bona fide purchasers may not be deceived 
 and cheated, is unreasonable and preposterous.'^^ ^ In one case an 
 assignee of a lease brought an action of assumpsit for rent, not- 
 withstanding the fact that the lease was a sealed instrument, his 
 theory being that it was void as a lease except as between the im- 
 mediate parties to it, because it was not recorded. But having notice 
 of the lease before the assignment of the reversion, the statute in re- 
 gard to recording had no application, and as a formal transfer of the 
 lease had accompanied the assignment, the action should have been 
 debt or covenant.'^'^^ So in a jurisdiction where leases for more than 
 one year were not valid without record, a lease for five years, unre- 
 corded and unacknowledged, was held to be good between a lessee 
 and the assignee of the lessor when the latter did not choose to avoid 
 it.^" 
 
 But the statute in Maryland provides that no deed of real property 
 shall be valid for the purpose of passing title unless acknowledged and 
 recorded.''^ ^ A lease for more than seven years would pass no title, 
 therefore, unless it was recorded, and so would not furnish any consid- 
 eration for the covenants of the lessee to pay rent. Consequently it was 
 held in that state that an action of covenant for rent could not be 
 maintained by the lessor on an unrecorded lease. But an action for 
 use and occupation could be brought for such period as the lessee was 
 in actual occupation. '^^'' The effect of this doctrine is that an interest 
 in land for a term exceeding seven years cannot be transferred by the 
 owner otherwise than in the way provided in the act, and no acts 
 in pais are competent for that purpose. The lessee's liability to pay 
 rent would continue until some act was done by him legally operative 
 to vacate the premises. ^^^ 
 
 The general doctrine seems to be that recording a lease is not neces- 
 
 "* Barnum v. Landon, 25 Conn. ™ Gen. Pub. Laws, vol. 1, p. 255. 
 
 137; overruling French v. Gray, 2 ^'"Anderson v. Critcher, 11 Gill. & 
 
 Conn. 92. J. (Md.) 450. 
 
 '"McCardell v. Williams, 19 R. I. ''« Peter v. Schley, 3 Harr. & J. 
 
 701, 36 Atl. 719; Anderson v. Harris, (Md.) 211; Mayhew v. Hardesty, 8 
 
 1 Bail. L. (S. Car.) 315. Md. 479, 495; Polk v. Reynolds, 31 
 
 "« Baldwin v. Walker, 21 Conn. Md. 106, 112. 
 168, 182.
 
 205 RECORDING. [§§ 165, 166 
 
 sary, even against the claims of third parties, where the lessee goes 
 into actual possession of the premises, for that is suflBcient notice of 
 his rights.''®^ 
 
 § 165. Place of record. — It has never been questioned but that a 
 lease for a term should be recorded, when recording is required, 
 among the real estate records. But the instrument of demise may be 
 of a dual nature, for a reservation in a lease of a specific lien on per- 
 sonalty is equivalent to, and is, in effect, a chattel mortgage.'^ *^ Even 
 where the same instrument affects both real and personal property, a 
 recording in the records of real estate has been held to be a sufficient 
 recording of the instrument as a chattel mortgage. A lease while a 
 chattel is a chattel real and there is a difference between it and chat- 
 tels personal. A document demising land for a term of years is cer- 
 tainly an instrument which "affected" real estate in the sense of the 
 recording statute. It was therefore necessary to the protection of the 
 lessor that it should be recorded in the real estate records, and being 
 thus recorded for that purpose, it made a proper recording of the lien 
 upon the personal chattels covered by the lease.'^^* The statute under 
 consideration, while providing for separate registration, did not apply 
 to cases where the instrument conveyed both kinds of property but 
 only directed separate recording in a chattel record where the instru- 
 ment conveyed "personal property alone." 
 
 § 166. Record of sublease. — In general the same principles apply 
 to a leasehold carved out of another leasehold estate as one granted 
 by an owner in fee. It follows that a sublease must be recorded 
 where an original lease of equal duration must be put on record to 
 bind third persons, such as an assignee for value of the original lease- 
 hold who takes without notice. The assignee finding by the record 
 a clear lease to the lessors ought not to be bound by any parol license 
 from their lessors. Had the lessors given a deed of the premises be- 
 fore they conveyed to the assignee, still, without any notice of such 
 a deed, and in the absence of any record of it, the assignee would 
 
 '^^Disbrow v. Jones, Harr. (Mich.) ^*^ Jones on Chattel Mortgages, 
 
 48; Corey v. Smalley, 106 Mich. 257, § 13; Attaway v. Hosliinson, 37 Mo. 
 
 64 N. W. 13; Kittle v. St. John, 10 App. 132; Wright v. Bircher, 5 Mo. 
 
 Neb. 605, 7 N. W. 271; Haworth v. App. 322. 
 
 Taylor, 108 111. 275; Chamberlain v. '"Faxon v. Ridge, 87 Mo. App. 
 
 Collinson, 45 Iowa 429; Leebrick v. 299; Jennings v. Sparkman, 39 Mo. 
 
 Stable, 68 Iowa 515, 27 N. W. 490; App. 663. See also, Anthony v. But- 
 
 Payson v. Holden, 4 Ky. L. R. 352. ler, 13 Pet. (U. S.) 423.
 
 §• 167] THE INSTRUMENT OF DEMISE. 206 
 
 be protected, and surely a parol lease or license can have no greater 
 effect than a deed not recorded.^^^ 
 
 The obligation to record a sublease does not give to such record any 
 effect on the original lease. No constructive notice is given of the 
 rights of a lessee under an unrecorded lease by reason of the record 
 of a lease from him to a second lessee, and a grantee of the original 
 lessor is not affected with constructive notice of the rights of such 
 first lessee, although her deed is expressly subject to the second lease.'^^*' 
 
 § 167. Computation of time. — A lease for years, although the term 
 thereby granted be for less than seven years, yet being made to com- 
 mence at a future day, if it is to endure more than seven years from 
 the making thereof, is within the requirements of a statute concern- 
 ing the recording of leases for more than seven years.^" So a lease 
 for five years, with the right to have a renewal for five years more is 
 as much within the mischief which the statute seeks 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 other, so far as the renewal term is 
 concerned. It was enough for the purpose of deciding the case where 
 this question arose to hold that as to any extension or agreement for 
 renewal which would carry the possession of the lessee to more than 
 seven years from the making of the instrument, such extension or 
 agreement for renewal was within the meaning of the statute. The 
 court found it unnecessary to decide whether such a lease would be 
 wholly void as to a bona fide purchaser, or whether it would be good 
 for the first term of seven years or less.'^^^ 
 
 785 BUJ.J. y Spencer, 26 Conn. 159. '" Chapman v. Gray, 15 Mass. 439. 
 
 ''"Garber v. Gianella, 98 Cal. 527, "« Toupin v. Peabody, 162 Mass. 
 33 Pac. 458. 473, 39 N. E. 280.
 
 CHAPTEE III. 
 
 KINDS OF TENANCY. 
 
 1. Estates for Years, §§ 168-173. 
 
 2. Tenancy at Will, §§ 174-191. 
 
 3. Tenancy from Year to Year, 
 
 192-214. 
 
 4. Tenancy from Month to Month, 
 
 §§ 215-219. 
 6. Tenancy at Sufferance, §§ 220- 
 
 230. 
 6. Statutory Provisions, §§ 231-250, 
 
 I. Estates for Years. 
 
 § 168. The chattel interest known as a term for years is a fa- 
 miliar and common form which the relationship of landlord and ten- 
 ant assumes. According to the common law notion, this was of less 
 dignity than a life estate which was a freehold;^ the term for years 
 was not an interest in real estate, it was a mere chattel interest, known 
 as a chattel real to distinguish it from chattels personal. The 
 requisite of this kind of estate is definiteness of duration, while there 
 is no requirement that it must last for at least a year. It has been 
 declared to be common learning that a lease for a period of less than 
 a year is to be ranked among leases for years.^ So a lease for nine 
 months, or any time certain less than a year, is a lease for one or more 
 years within the meaning of a landlord and tenant law.^ ''Estates 
 for years," said an eminent text writer, "embrace such as are for a 
 single year, or for a period still less, if definite and ascertained, as a 
 
 ^ The doctrine of the common law 
 that an estate in land for life is su- 
 perior to an estate for years, no mat- 
 ter how long its duration may be, 
 has no relation to a deed conveying 
 the unexpired portion of a term of 
 ninety-nine years, renewable forev- 
 er, and reserving to the grantor the 
 use and enjoyment of the property 
 during his natural life. Such a gift 
 would be governed by the rules of 
 law in regard to future limitations 
 of personal property. In this case 
 
 it was held that the limitation was 
 good. Culbreth v. Smith, 69 Md. 
 450. 
 
 - Casey v. King, 98 Mass. 503, cit- 
 ing Co. Lit. 52 b., 4 Kent. Com. 6th 
 ed. 85. 
 
 ^ Shaffer v. Sutton, 5 Binn. (Pa.) 
 228, citing 2 Bl. Com. 140, where it 
 is said that "if the lease be but for 
 half a year, or a quarter or any less 
 time, the lessee is respected as a 
 tenant for years, and is styled so in 
 some legal proceedings." 
 
 207
 
 § 169] KINDS OF TENANCY. 208 
 
 term for a fixed number of weeks or months, as well as for any definite 
 number of years, however great."* 
 
 Where the term and duration of a tenancy is fixed and certain, it is 
 an estate for years and not a tenancy from year to year. A lease for a 
 definite term of three years, with a covenant by the tenant to surren- 
 der possession at the end of the term, contained a provision that if 
 the tenant continued to occupy he should not be turned out until the 
 end of a year, and then only on three months' notice. This did not 
 entitle the tenant to three months' notice prior to the set limitation 
 for the term, WTien the contract said "if the tenant should continue" 
 it meant unquestionably a lawful continuance, and not in express vio- 
 lation of the covenant to surrender possession demanded by the land- 
 lord.^ 
 
 § 169. Term for years or from year to year. — A lease for a year 
 certain provided that the agreement was to run as long as the parties 
 agreed. If any force at all were to be given to this clause, it must be 
 that the tenancy of one year might be continued if the parties agreed, 
 for it could not be said that it limited the original term to less than 
 one year. The meaning of the language was, in the first place, that 
 when the stated term had expired, the tenant could continue to hold 
 for an indefinite time, so long as he and the landlord agreed. On 
 the other hand, the meaning was that if the tenant held over, it must 
 be subject to a time limited by an agreement with the landlord, or if 
 no agreement was made, then subject to the will of the landlord. In 
 any event it was for no longer time than the landlord saw fit to make. 
 It was not necessary that the landlord should give his tenant notice 
 any definite length of time before his year expired that he could not 
 remain longer. If the tenant held beyond the year, after receiving 
 notice that he must give up possession, he held possession unlawfully.^ 
 A contrary result was reached by the Nebraska court in regard to a 
 lease for a year certain which further provided that "if either party 
 elects to discontinue the lease, the party electing so to discontinue 
 shall give the other party six months' notice prior to the time of 
 the expiration of the lease." The court held this created a tenancy 
 from year to year. "Looking alone to the first paragraph, it would 
 seem to have been the intention to limit the terms of the relationship 
 to one year, but from the second paragraph, or regarding the two 
 
 *1 Washburn on Real Estate, p. ° MacGregor v. Rawle, 57 Pa. St. 
 291, quoted in Brown v. Bragg, 22 184. 
 
 Ind. 122. "Dunphy v. Goodlander, 12 Ind. 
 
 App. 609, 40 N. E. 924.
 
 209 ESTATES FOR YEARS. [§ 170 
 
 iogether, we are all of the opinion that there is evidence of an inten- 
 tion on the part of the makers of the instrument that in order to 
 terminate the lease at the end of the first, or of any subsequent year, 
 by either party there should be six months' notice given to the other."^ 
 A lease, to hold from the first day of April from year to year, so long 
 as both lessor and lessee should agree, is not necessarily a lease for 
 more than one year. Such a result follows only where from the whole 
 lease it is apparent that the parties contemplated a lease of more than 
 one year without specifying the whole duration of the lease. In such 
 cases it is held that the lease would last at least two years. But the 
 mere expression "from year to year" does not necessarily imply more 
 than from the commencement of one year to the commencement of 
 another.® Wliere premises are leased by a landlord until he can sell 
 them, the lease ends upon such a sale, and a notice to quit is unneces- 
 sary.^ It makes no difference by whose act the contingency was to 
 arise. So where the tenancy was to continue at a monthly rent till 
 the tenant found other quarters, the removal of the tenant to other 
 premises ended the term and no notice to quit was necessary. The 
 tenant could not be charged with liability for rent as a tenant from 
 month to month. ^^ 
 
 § 170. A lease, on account of uncertainty of duration, might be 
 inoperative for any other purpose than the creation of an estate at 
 will. A lease to be valid for any greater estate must be certain as to 
 its commencement and duration. So a lease to run until such time 
 as the lessor is prepared to improve the ground with new buildings^ ^ 
 or until the property is sold creates a tenancy at will.^^ It is unques- 
 tionably the law, however, that a term greater than an estate at will 
 may be limited conditionally and yet the condition be uncertain. But 
 in such case there must always be a term certain, though it may be 
 terminated sooner by the happening of the contingency.^^ It has 
 been suggested also that a tenancy at will could be a conditional estate 
 to be terminated on the happening of an event without the giving of 
 
 ^ Brady v. Flint, 23 Neb. 785, 794, "Lea v. Hernandez, 10 Tex. 137; 
 
 37 N. W. 647, per Cobb, J. Murray v. Cherrington, 99 Mass. 229. 
 
 " Fox V. Nathans, 32 Conn. 348, in ^^ Corby v. McSpadden, 63 Mo. 
 
 the words of Button, J. App. 648; Shaw v. Hoffman, 25 
 
 "Clark V. Rhoads, 79 Ind. 342. Mich. 162, 172; Munigle v. Boston, 3 
 
 "Hoffman v. McCollum, 93 Ind. Allen (Mass.) 230; Miller v. Levi, 
 
 326. 44 N. Y. 489. 
 
 "Corby v. McSpadden, 63 Mo. 
 App. 648, supra §§ 111-119. 
 
 Jones L. & T.— 14
 
 § 171] KINDS OF TENANCY. 210 
 
 notice, or by notice in the ordinary form.^* In a lease of this nature 
 a school teacher was engaged to teach a school, and he was given the 
 use of a school building "so long as he kept a good school." This 
 was held to be a tenancy at will with a conditional limitation. The 
 court held that as the owners had ejected him before terminating the 
 tenancy by giving the statutory notice provided for terminating 
 tenancies at will, he could hold them liable in damages, unless they 
 showed he had not taught a good school. The effect of ^the court's 
 holding was that notwithstanding the limitation, the owners could 
 terminate the tenancy at any time regardless of whether he was teach- 
 ing a good school, by giving the statutory notice.^^ Where a tenancy 
 at will is created by a parol lease and occupation thereunder, a con- 
 ditional limitation in such lease will be valid and the happening of 
 the contingency changes the tenancy at will into one at sufferance. ^^ 
 
 One occupying as a servant was allowed to continue in possession 
 on payment of rent until his wife was able to be moved. It was held 
 this was not a tenancy at will but a tenancy till the happening of a 
 future contingent event, and no notice to quit was necessary after the 
 wife recovered. ^^ It was not necessary to decide that there was no 
 tenancy at will here. All that was necessary to the decision was to 
 hold that the happening of the contingency ended the term without 
 notice. In another case the agreement was that a servant should 
 cease to occupy as tenant as soon as his employment ceased. It was 
 urged that this created a tenancy at will, and that thirty days' notice 
 to quit was necessary. Without passing on the question of tenancy, 
 the court decided the question on a statute providing that when an 
 express agreement was made, the tenancy should cease at the time 
 agreed upon without notice. ^^ 
 
 § 171. A lease for years is a chattel real only and goes to the ad- 
 ministrator and may be sold by him without an order of court as is 
 required in cases of freehold and fee estates.^^ At common law there 
 
 "Goodenow V. Allen, 68 Me. 308. 902; Faler v. McRae, 56 Miss. 227; 
 
 "Ashley v. Warner, 11 Gray Smith v. Dodds, 35 Ind. 452, 456; 
 
 (Mass.) 43. Schee v. Wiseman, 79 Ind. 389, 392; 
 
 "^Hollis V. Pool, 3 Mete. (Mass.) Cunningham v. Baxley, 96 Ind. 367, 
 
 350. 369; Warner v. Tanner, 38 Ohio St. 
 
 "Doyle V. Gibbs, 6 Lans. (N. Y.) 118; Gay, Ex parte, 5 Mass. 419; 
 
 180. Chapman v. Gray, 15 Mass. 439, 445; 
 
 ''Grosvenor v. Henry, 27 Iowa 269. Brewster v. Hill, 1 N. H. 350; Mur- 
 
 ^'Lake v. Campbell, 18 111. 106; dock v. Ratcliff, 7 Ohio 119, 122. 
 Mark v. North, 155 Ind. 575, 57 N. E.
 
 211 ESTATES FOR TEARS. [§' 171 
 
 is no doubt upon this question, as the rule is universal that such leases 
 would vest in the executor or administrator as personal property.^" 
 Except so far as they have been modified by express legislation, a 
 leasehold interest, though a chattel real, is personal estate and subject 
 to the rules governing that species of property. ^^ The rent is person- 
 alty, also, and the right to collect and distribute it is in the personal 
 representative of the decedent.-^ Leases for terms of years were of a 
 very low degree of interest in their origin and subject to be destroyed 
 at the pleasure of the lessor by suffering a common recovery until this 
 was changed by an early English statute.-^ They grew into an estate 
 of greater consequence after that statute and became a settled, perma- 
 nent interest maintainable as other rights and interests by its appro- 
 priate remedies. Still it remains a chattel real only to this day.-* 
 An illustration of how a term for years is regarded as personal prop- 
 erty is found in a case where an administrator was bringing a suit to 
 set aside a lease executed by his decedent. It was held that the action 
 could be brought in the county in which the defendant resided with- 
 out regard to the location of the leased property, although in real 
 actions respecting the title to real estate, venue would be determined 
 by the situs of the property.-^ 
 
 . Another respect in which the nature of a term for years as personal 
 property rather than real estate is apparent is in regard to a lien for 
 purchase money upon the assignment of such a leasehold interest. 
 Even where such a lien is allowed on sales of real estate, it could not 
 be set up after a sale of a leasehold. A lease for a term of years is 
 regarded as personal property in such a case, and the vendor of per- 
 sonal property has no general lien for unpaid purchase money upon 
 such property after he has parted with possession.^'' 
 
 The length of the term does not, moreover, change the nature of 
 the leasehold as a chattel real. It is only personal estate if it be for 
 a term of a thousand years. • Falling below the character and dignity 
 of a freehold, it is regarded as a chattel interest, and is governed and 
 descendible in the same manner.-'^ Thus it was held in one case that 
 an administrator could sell land held by his s intestate under a lease 
 
 =" Mulloy V. Kyle, 26 Neb. 313. 41 -' 21 Hen. VIII, cap. 15. 
 
 N. W. 1117, holding common-law ^' Lake v. Campbell, 18 111. 106. 
 
 rule was unchanged by statute. =' Mark v. North, 155 Ind. 575, 57 
 
 =• Culbreth v. Smith, 69 Md. 450, 16 N. E. 902. 
 
 Atl. 112. =''Cade v. Brownlee, 15 Ind. 369. 
 
 -Antrey v. Antrey, 94 Ga. 579, 20 "2 Kent. Com. 342. Co. Litt. 46 a; 
 
 S. E. 431. Flannery v. Rohrmayer, 49 Conn. 27. 
 
 I
 
 172] 
 
 KINDS OF TENANCY. 
 
 212 
 
 for nine hundred and ninety-nine years as personal property,^^ and 
 in another that a term for nine hundred and eighty-five years would 
 pass by a will under the expression "personal estate."^^ Under a gen- 
 eral devise of all manors, messuages, lands, tenements and heredita- 
 ments, leasehold messuages will not pass unless it appears to have been 
 the evident intention of the devisor that they should pass, even though 
 derived under leases for ninety-nine years renewable forever, and 
 therefore partaking of the nature of perpetual interests. In the view 
 of the testamentary and descent laws they are nevertheless personal 
 estate.^" 
 
 § 172. Sale on execution as a chattel. — It has been held that a 
 leasehold estate for a term of years may be sold on an execution issu- 
 ing out of a justice's court which was only authorized to sell person- 
 alty. Every species of property comprehended under the general 
 name of chattels was, by a statute, made liable to execution on a judg- 
 ment rendered by a justice. A term for years was a chattel interest. 
 In a division of property into real and personal it was to be classed 
 among the latter.^ ^ The opposite result was reached in New York 
 under a statute authorizing "goods and chattels" to be sold on an 
 
 2' Gay, Ex parte, 5 Mass. 419. 
 
 ^ Brewster v. Hill, 1 N. H. 350. 
 
 =» Taylor v. Taylor, 47 Md. 295; 
 Thompson v. Lawley, 2 B. & P. 303; 
 Rose v. Bartlett, Cro. Car. 292; 
 Knotsford v. Gardiner, 2 Atk. 450; 
 Chapman v. Hart, 1 Ves. Sr. 271; 
 Pistol V. Riccardson, 1 H. Bl. 26 n. 
 In Ohio the same rule was held: 
 Reynolds v. Commissioners of Stark 
 County, 5 Ohio 204; McLean v. 
 Rockey, 3 McLean '(U. S.) 238; Mur- 
 dock V. Ratcliff, 7 Ohio 119. Doubts 
 having arisen as to the correctness 
 of this rule, the case of Loring v. 
 Melendy, 11 Ohio 355, was reserved 
 to the court in Bank for the pur- 
 pose of settling the law. The case 
 was finally decided upon another 
 point; but the court, in delivering 
 their opinion, declared the law to be, 
 that permanent leasehold estates are 
 lands subject to all the rules and 
 laws which attach to lands, for all 
 purposes, and that judgment liens 
 
 attached to them as to lands. But 
 Lane, C. J., in Boyd v. Talbert, 12 
 Ohio 212, expressed his apprehen- 
 sions that Loring v. Melendy did not 
 conclude the point; and declared his 
 readiness to consider it when it be- 
 came necessary. In the Northern 
 Bank of Kentucky v. Roosa, 13 Ohio 
 334, the question was whether judg- 
 ments were liens upon permanent 
 leaseholds for one year without levy, 
 and it was held that they were. 
 Under the Ohio statutes, the court 
 considered that for all purposes con- 
 nected with the laws regulating 
 judgments, executions, sales and 
 descents, leasehold estates are to be 
 regarded as if they were freeholds 
 and not chattels. The court did not 
 decide that they were realty, but 
 only that for certain purposes they 
 were to be considered such. 
 
 "Barr v. Doe, 6 Blackf. (Ind) 
 335.
 
 313 TENANCY AT WILL, [§§ 173, 174 
 
 execution by a justice. It was decided that the legislature intended 
 chattels personal only and did not wish to include chattels real. This 
 was shown by the further provision that the sheriff levying the execu- 
 tion should take the chattels into his custody. Such a provision 
 would clearly not apply to leasehold estates, and so the intention of 
 the legislature to include chattels personal only was apparent.^^ 
 
 § 173. Curtesy and dower. — At common law there could be no 
 curtesy or dower in a leasehold estate, however long the term.^^ It 
 has been expressly decided that an estate in land for the term of nine 
 hundred and ninety-nine years, subject to the payment of an annual 
 rent, is personal property, and that the widow of the tenant could not 
 claim dower in it.^* The same result was reached in regard to a hus- 
 band's right to an estate of curtesy in his wife's leaseholds.^^ 
 
 II. Tenancy at Will. 
 
 § 174. An estate at will, in the primary and technical sense of 
 that expression, is created by grant and contract, whereby one man 
 lets lands to another to hold at the will of the lessor. ^^^ In a tenancy 
 of this kind both the entry and occupation are lawful but for no defi- 
 nite term or purpose, subject to be determined at common law by 
 either party instanter and without notice, or at most by mere demand 
 of possession by the landlord.^^ This kind of holding is distinguished 
 on the one hand from a tenancy at sufferance or adverse possession by 
 the fact that it is under an agreement from the landowner. In every 
 case a tenancy at will rests on the actual or presumed consent of the 
 owner of the premises.^^ On the other hand, a tenancy of this kind 
 differs from terms for years or for life in that it may be brought to an 
 end at any time at the whim of the parties, instead of continuing until 
 the happening of a certain event or the lapse of a certain period of 
 
 " Putnam v. Westcott, 19 Johns. '« Den v. Drake, 14 N. J. Law 523, 
 
 (N. Y.) 73; Merry v. Hallet, 2 Cow. citing Litt, § 28; 4 Kent Com. 100, 
 
 (N. Y.) 497. 1st Ed. 
 
 " Murdock v. Reed, 1 Disney " Brown v. Kayser, 60 Wis. 1, 18 
 
 (Ohio) 274. A statute in force at N. W. 523; Webb v. Seekins, 62 Wis. 
 
 the time of this decision altered the 26, 21 N. W. 814. 
 
 result in this case. =>■ Gault v. Stormont, 51 Mich. 636, 
 
 '* Goodwin v. Goodwin, 33 Conn. 17 N. W. 214; Ridgely v. Stillwell, 
 
 314. 25 Mo. 570. 
 
 ^^ Flannery v. Rohrmayer, 49 
 Conn. 27.
 
 §• 175] KINDS OF TENANCY. 214 
 
 time. Moreover, it was determined at an early date that if an estate 
 was at the will of one of the parties it was equally at the will of the 
 other.^^ Speaking for the Indiana court, Downey, C. J., said in re- 
 gard to this question : "It is a well-settled' and well-known rule of 
 law that a lease or estate which is at the will of one of the parties is 
 equally at the will of the other party. One of them is no more and 
 no further bound than the other. As the lessee in this case had the 
 clear right, at his will, to terminate the tenancy at any time, so also 
 had the lessor. It can not be otherwise."'**' 
 
 Where there was a written agreement for a tenancy providing for 
 termination of renting by giving four days' notice and providing for 
 the payment of rent in monthly or semi-monthly instalments, it was 
 held that this created a tenancy at will and not a tenancy from month 
 to month. Therefore such a term is ended by a transfer.*^ An 
 agreement under seal by a tenant that he will surrender possession 
 whenever a purchaser from the landlord requires it constitutes him a 
 tenant at will.*^ 
 
 § 175. Where a tenant occupies the premises without rent and 
 without any time agreed upon to limit the occupation and without in 
 any way binding himself to become a tenant for any definite time or 
 at any agreed price, his occupation is that of a tenant at will.''^ It 
 does not alter the result that the tenant's holding originates in a writ- 
 ten demise. If the evidence shows no reservation of rent and no 
 duration or limit of the term, it cannot be regarded as having created 
 any greater estate than a strict tenancy at will. Although it is not 
 the usual practice, there is no inconsistency or objection in creating 
 such a holding by a written instrument.** A mere tenancy at will 
 was created where a life tenant verbally leased the premises for the 
 full term of his life in consideration of an agreement for his sup- 
 port.*^ And where the owner of land allowed some of his relatives to 
 use and improve it without payment of rent, they became mere ten- 
 ants at will.*" 
 
 '» Cowan V. Radford Iron Co., 83 " Say v. Stoddard, 27 Ohio St. 478. 
 
 Va. 547, 3 S. E. 120; Doe v. Rich- ^^^ Harrison v. Middleton, 11 Grat. 
 
 ards, 4 Ind. 374. (Va.) 527. 
 
 " Knight v. Indiana Coal &c. Co., " Maher v. James Hanley &c. Co., 
 
 47 Ind. 105. Blackstone says (Book 23 R. I. 323, 50 Atl. 330. 
 
 2, p. 135) : "But every estate at will '* Amick v. Brubaker, 101 Mo. -473, 
 
 is at the will of both parties, land- 14 S. W. 627. 
 
 lord and tenant, so that either of " Barrett v. Cox, 112 Mich. 220, 70 
 
 them may determine this will, and N. W. 446. 
 
 quit his connection with the other ** Ellsworth v. Hale, 33 Ark. 633. 
 at his own pleasure."
 
 315 TENANCY AT WILL. [§§ 176, 177 
 
 In a case where no claim was made for a more permanent tenure, 
 the occupant was held to be by implication a tenant at will, even 
 without the reservation of any rent.*^ Although a householder per- 
 mitted another to occupy rent free, the occupant was held to be a 
 tenant at will/^ Parol authority to a tenant to occupy premises as 
 long as he lived, though without any requirement for payment of rent, 
 made the occupant a tenant rather than a mere licensee, and entitled 
 him to the statutory notice to quit provided for in such cases.*'' 
 Loose expressions in a lease for a definite period will not change it 
 into a holding at will. Thus a lease for one year provided for the 
 payment of a certain rent per month, payable monthly "so long as the 
 lessee shall occupy the said house." This did not make the lessee a 
 tenant at will, but he was bound for the full year's rent.^*' 
 
 § 176. A parol gift of land creates merely an estate at will in the 
 donee, which he has no power to alienate by deed or lease, and any at- 
 tempt to do so on his part terminates the will. He is not entitled to 
 a notice to quit, except where such a right is conferred by statute.^^ 
 If the donee leases and the donor does not ratify his act, mere per- 
 mission to lessee to occupy will not prevent the donor from legally devis- 
 ing land, and his devisee may recover without notice to quit.^^ 
 
 § 177. The necessity for consent by the landowner to create a 
 tenancy at will is shown when a lessee continues in possession after the 
 expiration of his term. It was argued that after the expiration of 
 the term the lessee became a tenant at will, and as such was entitled 
 to thirty days' notice to quit. There was nothing whatever in this 
 claim. The lessee was not a tenant at will. A tenant who enters 
 and continues in possession of the demised premises under a written 
 lease until the expiration of the term, does not thereafter become a 
 tenant at will by refusing to surrender that possession and by holding 
 over without the consent of the lessor.^^ So where a subtenant held 
 
 *^Larned v. Hudson, 60 N. Y. 102. 28 N. E. 378. In the latter case the 
 
 ^'Rex V. Collett, Russ. & Ry. 498; fact that the gift was conditional 
 
 Jackson v. Bryan, 1 Johns. (N. Y.) would not seem to have any logical 
 
 322. . effect on the result. 
 
 " Allen V. Mansfield, 82 Mo. 688. "■"- Jackson v. Rogers, 1 Johns. Cas. 
 
 «'Lane v. Nelson, 167 Pa. St. 602, (N. Y.) 33. 
 
 31 Atl. 864. " Ferine v. Teague, 66 Cal. 446, 6 
 
 "Dossee v. East India Co., 1 L. T. Pac. 84; Kuhn v. Smith, 125 Cal. 
 
 (N. S.) 345, 8 W. R. 245; Jackson 615, 58 Pac. 204; Canning v. Fibush, 
 
 v. Rogers, 1 Johns. Cas. (N. Y.) 33. 77 Cal. 196, 19 Pac. 376. 
 Contra, Kaufman v. Cook, 114 111. 11,
 
 § 178] KIXDS or TENAXCT. 216 
 
 over after a new lease had been executed to a different lessee, there 
 was no tenancy at will because that requires the consent of the owner,, 
 and such consent could not be inferred.^* 
 
 When a party remains in possession after the end of his term, and 
 no new agreement is made, he becomes a tenant at sufferance. Only 
 after a new contract, either expressed, or which may be fairly implied 
 from the acts of the parties, and after the tenant occupies under it, 
 does his tenancy become a tenancy at will, and subject to the statutory 
 rules prescribed for terminating that kind of estate.^^ 
 
 § 178. A landowner's mere consent to the occupation of his land 
 by another does not necessarily imply consent to such occupation as 
 tenant. While the agreement of the parties upon which a tenancy at 
 will is founded will ordinarily be implied from their conduct in trans- 
 ferring the possession of the premises in question, such an inference 
 is rebutted by the existence of a definite agreement to enter into con- 
 tractual relations of a different nature, as to become grantor and 
 grantee. If, after default in the contract under which entry was 
 made, the occupant continues to hold possession with the consent of 
 the owner, there is then no objection in explaining such possession on 
 the assumption that the parties have agreed to the creation of a ten- 
 ancy at will. In one case the entry had been made under an agree- 
 ment for lease, which the occupant refused to carry out after receiving 
 possession. Upon such refusal he became a tenant at will. There is 
 no difference between entering under an agreement to purchase and 
 under a contract to take a lease; therefore there would be a mere 
 tenancy at the will of the lessor after refusal of the tenant to make a 
 lease.^^ 
 
 But until a default occurs in the contract of sale there is no ground 
 for implying a tenancy between the parties. In the absence of agree- 
 ment a grantee has no right to possession of the premises covered by a 
 contract of sale until the time for the transfer of legal title. No 
 demise is created by the contract of sale; and the vendee holds pos- 
 session of the premises only by permission of the owner. Although 
 it be undoubtedly the intention of the parties that he shall remain in 
 the undisturbed possession of the land, unless he neglects to make the 
 stipulated payments, he has no title by which he can hold against the 
 true owner for any fixed or definite length of time. Therefore the 
 
 ** Smith V. Coe, 55 N. Y. 678. Mass. 367; Merrill v. Bullock, 105 
 
 " Doe v. Stennett, 2 Esp. 717, 5 R. Mass. 486. 
 R. 769; Emmons v. Scudder, 115 »« Dunne v. School Trustees, 39 IlL 
 
 578.
 
 217 TEXAXCY AT WILL. [§ 179 
 
 vendor is the proper party to seek for a remedy for injuries to the 
 reversion,^ ^ 
 
 However, the mere absence of express terms of renting does not 
 prevent the implication of a tenancy at will. If the tenant be placed 
 on the land without any term prescribed or rent reserved, and as a 
 mere occupier, he is a tenant at will.^^ In accordance with this prin- 
 ciple it has been held that the pendency of negotiations between the 
 parties does not prevent an occupant of land from becoming a tenant 
 at will of the owner during the meantime. One moving a building 
 on land of another in expectation of its sale to such party becomes a 
 tenant at will pending the negotiations, and in the event that no 
 agreement is made he becomes liable for rent. Had such negotia- 
 tions ripened into a completed contract, then the tenancy at will would 
 have been merged in the executed contract, which would relate back 
 to the time when the building was first moved upon the land. But 
 the negotiations were never perfected, and the seller remained tenant 
 at will to the buyer, and so liable in use and oecupation.^^ 
 
 Where a grantee allowed his grantor to continue in possession of 
 the granted premises, there would be no basis for inferring that the 
 grantor remained in possession as servant so that crops would belong 
 to the grantee and could be levied on as his property. The inference 
 would rather be that the grantor was a tenant to the grantee, and 
 therefore the owner of the crops.^*^ 
 
 § 179. The possession of a tenant at will is in contemplation of 
 law a complete and unqualified possession as long as it lasts. So, 
 although an agent or servant in occupation of land can not maintain 
 a suit for possession in his own name, a tenant at will has such a pos- 
 session as will enable him to do so.^^ A tenant at will can undoubt- 
 
 " Foley V. Wyeth, 2 Allen (Mass.) to be a possible alternative. Fur- 
 
 131. In Jones v. Temple, 87 Va. thermore, every holding which is 
 
 210, 12 S. B. 404, the statement is not adverse is not a tenancy at will; 
 
 made that "upon familiar principles a mortgagor in possession does not 
 
 a person entering under a contract hold adversely to his mortgage, yet 
 
 of purchase, which he has not com- he is not a tenant at will, 
 
 plied with, would be a tenant at will, =* Sarsfield v. Healy, 50 Barb. (N. 
 
 for the possession of the tenant is Y.) 245; Post v. Post, 14 Barb. (N. 
 
 by virtue of an entry by the consent Y.) 253. 
 
 of the vendor; it is not adverse, but, ™ Michael v. Curtis, 60 Conn. 363, 
 
 as the only other alternative, it is a 22 Atl. 949. 
 
 tenancy at the will of the vendor." ^ Sherburne v. Jones. 20 Me. 70. 
 
 One criticism of this statement is " Jones v. Shay, 50 Cal. 508. 
 that a tenancy at sufferance seems
 
 §' 180] KINDS OF TENANCY. 218 
 
 edly maintain an action of ejectment because one having an even more 
 precarious tenure than he can do so. It is held that "a tenant for 
 years, a lessee at will and a tenant at sufferance may support this 
 action against a stranger, or even against his landlord unless a right 
 of entry be expressly or impliedly reserved." Many may be found in 
 the occupancy of lands to which they can show no legal title, and 
 unless prior peaceable possession gave a preference in the right of 
 enjoyment, the peace and quiet of society would be constantly dis- 
 turbed. This is the reason of the common law why any possession is 
 suflBcient to sustain trespass against a wrongdoer or a person who can 
 not make out a title prima facie entitling him to possession.^^ 
 
 § 180. Entry and occupation under a void parol lease creates a 
 tenancy, which is either strictly at will or from year to year or from 
 month to month, according to the circumstances of the case.®^ The 
 wording of the English statute of frauds is that grants by parol of a 
 greater interest than a three years' term shall only be deemed estates 
 at will. Although the wording of some American statutes is that 
 parol leases for more than a certain period are void, occupation under 
 such an agreement nevertheless creates a tenancy. The occupier is 
 not a trespasser ; he is not a mere licensee. He may be compelled to 
 pay for the use and occupation of the premises.^* Yet a ruling that 
 a parol lease for seven years, although invalid for the full term, was 
 valid for the term of one year, seems not only unreasonable, "but it 
 is difficult to perceive liow such a contract, declared to be void by the 
 statute, can be held to be valid for a single hour, or upon what princi- 
 ple a tenant entering under a void lease could be compelled by virtue 
 of the lease to pay for a longer period than he actually occupied."^^ 
 
 •== Duncan v. Potts, 5 Stew. & P. (N. Y.) 226; Anderson v. Prindle, 
 
 (Ala.) 82. 23 "Wend. (N. Y.) 616; Lounsbery v. 
 
 "=• California: Phelan v. Anderson, Snyder, 31 N. Y. 514; Greton v. 
 
 118 Cal. 504, 50 Pac. 685. Connecti- Smith, 33 N. Y. 245; Lockwood v. 
 
 cut: Lockwood v. Lockwood, 22 Lockwood, 22 Conn. 425. 
 
 Conn. 425. Michigan: Huyser v. •^Thomas v. Nelson, 69 N. Y. 118, 
 
 Chase, 13 Mich. 98. New Hamp- per Earl, J. There is authority for 
 
 shire: Whitney v. Swett, 22 N. H. the doctrine that a parol lease is 
 
 10. Pennsylvania: Dumn v. Rother- invalid only as to the excess of the 
 
 mel, 112 Pa. 272, 3 Atl. 800. Tennes- term beyond the time permitted by 
 
 see: Duke v. Harper, 6 Yerg. 280. the statute of frauds. Such is the 
 
 Vermont: Sartwell v. Sowles, 72 Vt. rule in Nebraska. Maxwell, J., says: 
 
 270, 48 Atl. 11. Washington: Dolan "Here was a lease for twenty-four 
 
 V. Scott, 25 Wash. 214, 65 Pac. 190. months, under which the tenant took 
 
 "^Schuyler v. Leggett, 2 Cow. (N. possession. The parties had author- 
 
 Y.) 660; People v. Rickert, 8 Cow. ity to make a lease for twelve
 
 319 TENANCY AT WILL. [§ 181 
 
 The explanation to remove this objection is that the tenancy from year 
 to year arises from the entry and payment of rent, and not from the 
 invalid lease. The lease is not treated as valid for a year ; it is simply 
 operative to the extent that it shows the occupation is permissive and 
 not adverse. The agreement for a periodic tenancy arises by pre- 
 sumption of law out of the continued occupation and the payment of 
 a periodic rent. This was aptly illustrated by a case where the very 
 arrangement which the parties could not make by parol arose by in- 
 tendment of law. Thus a parol agreement that a tenant holding over 
 shall occupy as a tenant from year to year creates a tenancy at will 
 merely; but this becomes a tenancy from year to year by continued 
 occupation for a year and payment of annual rent.^^*' 
 
 Where a party enters into possession of premises under a parol lease 
 for twenty months he becomes at first a tenant at will, but if a 
 monthly rent is paid and accepted, a tenancy from month to month is 
 created.^^ Where an annual rent is reserved and has been paid by 
 the tenant in possession, there is a tenancy from year to year.*'* So 
 when land was occupied several years with no written agreement it 
 was held to be a letting from year to year which commenced at the 
 time when it was usual to rent such premises in the county.*'^ 
 
 § 181. TJnauthorized lease. — The rule that occupation under a void 
 lease creates a tenancy at will applies only in the case of leases granted 
 
 months, and it is only the excess Rev. St. 1889, § 6371). New Hamp- 
 that is void, and it is void only be- shire: Tuttle v. Langley, 68 N. H. 
 cause of the limitation upon the 464, 39 Atl. 488. New York: Reeder 
 power to make the contract, but to v. Sayre, 70 N. Y. 180; Lounsbery v. 
 the extent of the authority the lease Snyder, 31 N. Y. 514; Kernochan v. 
 is valid. The lease therefore was "Wilkens, 3 N. Y. App. Div. 596. 
 valid for one year." Friedhoff v. Ohio: Baltimore &c. R. Co. v. West, 
 Smith, 13 Neb. 5, 12 N. W. 820, 57 Ohio St. 161, 49 N. E. 344. Ore- 
 quoted with approval in NickoUs v. gon: Williams v. Ackerman, 8 Ore. 
 Barnes. 39 Neb. 103, 57 N. W. 990. 405; Garrett v. Clark, 5 Ore. 464; 
 
 ""Amsden v. Atwood, 68 Vt. 322, Rosenblat v. Perkins, 18 Ore. 156, 22 
 
 35 Atl. 311. Pac. 598. Tennessee: Shepherd v. 
 
 "Anderson v. Prindle, 23 Wend. Cummings, 1 Coldw. 354. Vermont: 
 
 (N. Y.) 616. But see, Friedhoff v. Barlow v. Wainwright, 22 Vt. 88; 
 
 Smith, 13 Neb. 5. 12 N. W. 820. Blanchard v. Bowers, 67 Vt. 403, 31 
 
 ""California: Phelan v. Anderson, Atl. 848. Wisconsin: Koplitz v. 
 
 118 Cal. 504, 50 Pac. 685. Kentucky: Gustavus, 48 Wis. 48, 3 N. W. 754. 
 
 Hauser v. Romer, 4 Ky. L. R. 815; English: Clayton v. Blakey, 8 Term 
 
 Morehead v. Watkyns, 5 B. Mon. R. 3; Thunder v. Belcher, 3 East 
 
 228. Michigan: Coan v. Mole, 39 449; Doe v. Amey, 12 A. & E. 476. 
 
 Mich. 454. Missouri: Hammon v. ™ Hearn v. Gray, 2 Houst. (Del.) 
 
 Douglas, 50 Mo. 434 (prior to Mo. 135.
 
 § 182] KINDS OF TENANCY. 220 
 
 by the owner of the premises which can not be enforced because of a 
 failure to comply with some statutory requirement as to execution. 
 It does not hold true of a demise made without authority from the 
 owner, for such a lease does not show the owner's consent to the occu- 
 pation, which is essential to the creation of a tenancy at will. The 
 rule that a void lease and entry thereunder will create a tenancy at 
 will entitling the tenant to notice to quit does not apply to a case of 
 entry under a lease made by an agent acting entirely without author- 
 ity. Not only was the lease executed by the agent void, but any pos- 
 session given under it or right of tenancy conferred by it was entirely 
 unwarranted. There could be no tenancy at will created by means 
 of the possession so obtained.'^" The same result would follow from 
 incapacity created by a statute forbidding a husband to execute a 
 lease as agent in behalf of liis wife. Such a lease made by a husband 
 would be absolutely void and no action could be maintained upon it. 
 The lease attempted to be made would be incapable of ratification in 
 any legitimate sense. Its provisions might be adopted by the wife, 
 but as the term exceeded one year, this could not be done by parol. 
 Parol adoption by the wife would create a tenancy at will, but an 
 action solely upon the void lease could not be maintained.'^^ How- 
 ever, while the statute of frauds makes leases for more than one year 
 invalid if the agent is not authorized in- writing to execute them, yet 
 where the lessee has been put into possession and has enjoyed the 
 premises for a full year, the executed agreement is good for that 
 period, at least, is not within the statute, and the authority of the 
 agent may be shown by parol."^ 
 
 A distinction exists where the person executing a lease is not en- 
 tirely without authority, but merely exceeds his authority in respect 
 to the length of the term for which he leases. Thus in one jurisdic- 
 tion the statutory authority to executors to lease lands of their testator 
 limits the duration of such leases to a single year. Therefore a two- 
 year lease by executors was held to be invalid because in excess of 
 their authority, but a valid tenancy at will was created by the entry 
 of the tenant. Occupation and pa}Tnent of rent would have the effect 
 of changing this into a valid year to year tenancy which could only 
 be terminated by notice in the required statutory form.'^^ 
 
 § 182. Determination of tenancies at will. — In the absence of 
 statutory requireinents the mode of terminating a tenancy at will is 
 
 "> Yellow Jacket &c. Co. v. Steven- " Toan v. Pline, 60 Mich. 385, 27 
 
 son, 5 Nev. 224. N. W. 557. 
 
 " Sanford v. Johnson, 24 Minn. " Grady v. Warrell, 105 Mich. 310, 
 
 172. 63 N. W. 204.
 
 221 TENANCY AT WILL. [§ 183 
 
 for the landlord to enter, use words declaring the tenancy at an end, 
 and then notify the tenant of his action.^* At common law a tenant 
 at will was not entitled to notice to quit ; a mere demand on him for 
 possession was all that the law required." Tenancies at will may be 
 terminated by any act or declaration inconsistent with the voluntary 
 relation of landlord and tenant; as notice to quit; threat of legal 
 means to recover possession ; anything that amounts to a demand for 
 possession ; the bringing of an action to recover possession which fails, 
 and, possibly, a notice to the tenant that if he continue in possession 
 thereafter he must pay an increased rent, terminates the tenancy.''^ 
 Not only is the interest of a tenant at will determined instanter by a 
 demand for possession, but if he does any act which amounts to a dis- 
 claimer of his landlord's title, it operates as a forfeiture, and no de- 
 mand or notice to deliver possession is necessary." Moreover, an 
 entry by the landlord upon his tenant at will, of which the tenant is 
 duly notified, vests the possession in the landlord without an expulsion 
 of the tenant. An expulsion of the tenant is not necessary in order 
 that the landlord become lawfully possessed of the premises, and 
 would not be justified until a reasonable time had been allowed the 
 tenant to remove his belongings.''^ 
 
 On the other hand, a tenant at will could put an end to his holding 
 instanter at common law and avoid further liability for rent. Al- 
 though he cannot terminate a valid contract by simply giving notice 
 of his intention to do so, it is unnecessary to cite authorities to the 
 point that the law does not imply an agreement to pay for that which 
 one has not received. After the tenant at will abandoned the prem- 
 ises it could only be claimed that he was in constructive possession. 
 If there were no statute requiring notice, such tenant could not be held 
 for rent after such time ; he could in any event only be held liable for 
 damages which might result to the property, or for loss thereof by rea- 
 son of his abandonment without notice.''^ 
 
 § 183. Yet until a termination of the will the possession of a ten- 
 ant at will is lawful and until some act is done which terminates the 
 
 '^Cook V. Cook, 28 Ala. 660. (N. Car.) 152; Howell v. Howell, 7 
 
 "Curl V. Lowell, 19 Pick. (Mass.) Ired. L. (N. Car.) 496. 
 
 25; Cross v. Campbell, 89 111. App. "Curl v. Lowell, 19 Pick. (Mass.) 
 
 489; Ross v. Garrison, 1 Dana (Ky.) 25. 
 
 35. '" Dolan v. Scott, 25 Wash. 214, 65 
 
 "Amsden v. Blaisdell, 60 Vt. 386, Pac. 190, holding rule was un- 
 
 15 Atl. 332. changed by statute. 
 
 " Love v. Edmonston, 1 Ired. L.
 
 §§ 184, 185] KINDS OF TENANCY, 223 
 
 tenancy, the landlord can not recover possession by suit. Entry under 
 a parol agreement to lease for four years creates only a tenancy at 
 will, but if that tenancy be not determined before the day of the 
 demise laid in the declaration, the landlord could not recover in eject- 
 ment.*" In accordance with these principles it has been held that 
 a tenant at will has a right to have reasonable notice of his landlord's 
 intention to terminate the estate before an action can be brought 
 against him for possession.®^ Furthermore, it has been uniformly 
 held that a vendor, having placed his vendee in possession, can not 
 without a demand of the possession and a refusal by the vendee, or 
 some wrongful act by him to determine such possession, treat the 
 vendee as a wrongdoer and a trespasser. The vendee is not liable to 
 be turned out of possession by ejectment without previous demand 
 and notice by the vendor. ®- 
 
 § 184. Death of parties and destructon of subject-matter. — It is 
 
 a general doctrine of the law of landlord and tenant that a total de- 
 struction of the subject-matter of a lease ends the tenancy and termi- 
 nates the relation of landlord and tenant. So if premises are occu- 
 pied by a tenant at will, the tenancy ceases when the property is de- 
 stroyed and the tenant is ousted.®^ Besides being terminated by a de- 
 struction of the subject-matter, a tenancy at will is, at common law, 
 determined by the death of either of the parties. In determining the 
 validity of a bequest of a leasehold interest it was held that to make 
 out the legatee's case it must be contended that the testator was 
 tenant from year to year, "for if he was tenant at will the general 
 doctrine is that the death of either party determines the will, and it 
 would follow that no interest passed by the bequest."** 
 
 § 185. Notice to tenant at will. — In a lease for a definite term, the 
 parties know beforehand the time when the holding will come to an 
 end, and it is only fair to insist that the tenant make his plans accord- 
 ingly and vacate immediately upon the expiration of the term. The 
 same is true of a periodic tenancy when due notice has been given 
 that the arrangement will come to an end upon the expiration of one 
 
 '"Goodtitle v. Herbert, 4 Term R. Birch v. Wright, 1 Term R. 378, 381; 
 
 680; Denn v. Rawlins, 10 East 261; Twyman v. Hawley, 24 Grat. (Va.) 
 
 Doe v. Jackson, i B. & C. 448; 1 Just. 512; Jones v. Temple, 87 Va. 210, 12 
 
 57, Lit. S. 68 Lom. Dig., I, 192. S. E. 404. 
 
 "Blum V. Robertson, 24 Cal. 127; "O'Brien v. Cavanaugh, 61 Mich. 
 
 Frisbie v. Price, 27 Cal. 253. 368, 28 N. W. 127. See also, §474. 
 
 ^^^ Right v. Beard, 13 East. 210; "James v. Dean, 11 Ves. 383, 391.
 
 233 TEXAXCY AT WILL. [§ 186 
 
 of the recurring periods of the tenancy. But since a tenant at will is 
 not entitled to any prior notice to bring his holding to an end, such 
 as the six months' notice which must be given a tenant from year to 
 year, it is required that he be given a reasonable time after the termi- 
 nation of the tenancy to remove his effects. This is really after his 
 holding has been brought to an end, but the rule is commonly ex- 
 pressed by saying that a tenant at will is entitled to reasonable notice 
 and no more.^^ The true cause and explanation of the rule is that 
 the tenant is entitled to a reasonable time for the removal of his 
 family and property. ^^ Upon the termination of his tenancy, he has 
 the right of ingress and egress so far as may be necessary to remove 
 his effects." - Even if one is occupying a house as a mere tenant at 
 will, the landlord has no right to lock up the house with the property 
 of the tenant in it. The landlord can not act in ^uch a manner and 
 claim that he is bound to no diligence whatever for the preservation 
 of the tenant's property. Upon a termination of the tenancy due care 
 must be exercised to prevent injury to the tenant.^* 
 
 What is reasonable notice is a question of law and fact to be deter- 
 mined by the particular circumstances of each case. The time must 
 be sufficient to enable the lessee to take the emblements, and to re- 
 move his family, furniture, and other property.®^ In case none of the 
 facts were in dispute, the question as to what was a reasonable time 
 could rightly be treated as a question of law for the court to decide.®*' 
 Where tenant, who had been allowed to build a small house on land 
 and to occupy the premises at will, was notified to vacate immediately, 
 and within four days suit was brought, it was held that this was not 
 sufficient notice to terminate the tenancy.®^ 
 
 § 186. An estate at will is uncertain and defeasible, and is de- 
 stroyed by the alienation of the premises by either party."- The 
 
 tenant, in case of an alienation l^y the owner of the estate, becomes a 
 mere tenant at sufferance ; for the estate at will is terminated by its 
 own legal limitation, it not l^eing the subject of alienation.®^ In the 
 
 "'Rich V. Bolton, 46 Vt. 84, 88; s" Currier v. Earl, 13 Me. 216. 
 
 Harrison v. Middleton, 11 Grat. ""Ellis v. Paige, 1 Pick. (Mass.) 
 
 (Va.) 527. 43, 50; same case 2 Pick. 71, n., Co. 
 
 «•> Davis v. Thompson, 13 Me. 209; Litt. 56 b. 
 
 Folsom v. Moore, 19 Me. 252; Simp- "' Boudette v. Pierce, 50 Vt. 212. 
 
 kins v. Rogers, 15 111. 397, °' Co. Litt. 55 b. 57 a.; Jackson v. 
 
 "Folsom v. Moore, 19 Me. 252; Aldrich, 13 Johns. (N. Y.) 106, 109; 
 
 Simpkins v. Rogers, 15 111. 397. Disdale v. lies, 2 Lev. 88. 
 
 ^ Gross v. Hays, 73 Tex. 515, 11 S. "' Joy v. McKay, 70 Cal. 445, 11 
 
 W. 523. Pac. 763; Esty v. Baker, 50 Me. 325;
 
 § 187] KINDS OF TENANCY. 224 
 
 language of the old law, conveyance of the premises terminated the 
 will. The entry of the tenant under the former landlord had been 
 without wrong, but he continued to hold without any consent, express 
 or implied, from the new owner so that he became a tenant at suffer- 
 ance. This effect of a transfer operated to deprive the tenant of the 
 benefit of the statutes requiring notice from the landlord to terminate 
 a tenancy at will. As a tenant at will he would be entitled to a notice 
 to quit, but after a conveyance of the premises by the landlord, the 
 tenant could be evicted even without the notice provided for by 
 statute. He could only claim the protection extended to a tenant at 
 sufferance.^* But in some jurisdictions this is by statute made the 
 same as that given to a tenant at will. However, in others, as in 
 Massachusetts, the old common law distinction is made between 
 estates at will and at sufferance in the statutes regarding notice to 
 quit. Thus in the jurisdiction mentioned a tenant at will, after 
 conveyance of the reversion, was held liable to the grantee, without 
 notice to quit, to the process given by statute respecting forcible entry 
 and detainer, tenants at sufferance not being entitled to notice under 
 any of the provisions of that statute.^^ 
 
 The general doctrine that any transfer of the estate of a lessor at 
 will determines the will and makes the former tenant at will a tenant 
 at sufferance to the grantee of the reversion, applies with equal force 
 to an involuntary transfer taking effect by operation of law. The 
 vesting of title in the assignee upon the insolvency or bankruptcy of a 
 landlord at will operates to terminate the estate and makes the lessee 
 at will a tenant at sufferance."® The effect of a transfer of the land- 
 lord's interest upon a tenancy at will is the same, although the con- 
 veyance is against the will of the owner. Thus a sale of the land- 
 lord's interest on execution will have the effect of converting a tenancy 
 at will into a tenancy at sufferance.^'^ 
 
 § 187. Purpose and mode of transfer immaterial. — A lessor at will 
 need not make a conveyance in fee in order to bring the tenancy to 
 an end. It is a fixed rule that if the owner of the land, which is in 
 
 Robinson v. Deering, 56 Me. 357; 38 Atl. 540; Lash v. Ames, 171 Mass. 
 
 Reed v. Reed, 48 Me. 388; Hammond 487, 50 N. E. 996. 
 
 V. Thompson, 168 Mass. 531, 47 N. "= Benedict v. Morse, 10 Mete. 
 
 E. 137; Lash V. Ames, 171 Mass. 487, (Mass.) 223; Curtis v. Galvin, 1 
 
 50 N. E. 996; Ball v. Cullimore, 2 Allen (Mass.) 215. 
 
 C. M. & R. 120, 1 Gale 96. "" Doe v. Thomas, 6 Exch. 854. 
 
 ** Seavey v. Cloudman, 90 Me. 536, " Marsters v. Cling, 163 Mass. 477, 
 
 40 N. E. 763.
 
 235 TENANCY AT WILL. [§ 188 
 
 the occupation of a tenant at will, makes a feoffment, or a lease for 
 years to commence immediately, the estate at will is thereby deter- 
 mined.''^ A written lease for years from the landlord to a third per- 
 son has the same effect as a conveyance in fee. In this connection a 
 lease ^'for the season," being a demise for a certain time, though it 
 may be construed to be for a term less than a year, is technically a 
 lease for years.®^ 
 
 The purpose of the parties in executing the written lease is imma- 
 terial. The express object may be to get rid of the tenant. So that 
 a provision in the written lease that no rent shall be paid till the lessee 
 is in possession does not affect the result.^"" A tenant at will can not 
 maintain an action against his landlord for advising and procuring 
 a person to whom he has given a lease of the premises to eject the 
 tenant. Tlie landlord has a legal right to terminate the tenancy at 
 will by giving a lease, and after the lease is given, the lessee has the 
 legal right, after due notice, to eject the tenant in a peaceable man- 
 ner. It is immaterial what his motives are. An action can not be 
 maintained against him, or against any person acting with him, or ad- 
 vising or procuring him to act, unless either the act complained of 
 or the means by which it was accomplished are shown to be unlawful. 
 The tenant can not maintain an action against the landlord for ad- 
 vising and procuring the lessee to assert and enforce his legal rights, 
 even if the landlord is actuated by malice, because the tenant's rights 
 are not invaded, and he sustains no legal injury.^"^ 
 
 § 188. Notice of the transfer of the landlord's title must in some 
 way be brought home to the tenant for it to have the effect of bringing 
 a tenancy at will to an end. The law upon the subject is, that if an 
 assignment or conveyance of the reversion takes place behind the back 
 of the tenant, it does not affect him till he has notice of it ; but if he 
 has knowledge from the assignee of the reversion or has himself ac- 
 quired the same information, it is a determination of the will.^**^ 
 'This form of expressing the will to end the tenancy, taking place off 
 the land and in the absence of the other party, must be made known 
 to him, in order to give effect to the intention and actually terminate 
 the tenancy, although no particular form of notice is necessary." ^"^ 
 
 " Pratt V. Farrar, 10 Allen (Mass.) ^°« Pratt v. Farrar, 10 Allen 
 
 519; Hildreth v. Conant, 10 Mete. (Mass.) 519. 
 
 (Mass.) 298; Kelly v. Waite, 12 "' Groustra v. Bourges, 141 Mass. 
 
 Mete. (Mass.) 300; 2 Bl. Com. 146. 7, 4 N. E. 623. 
 
 ™ Kelly v. Waite, 12 Mete. (Mass.) ^"^ Doe v. Thomas, 6 Exch. 854. 
 
 300; 2 Bl. Com. 140. '« Pratt v. Farrar, 10 Allen 
 Jones L. & T.— 15
 
 §§■ 189, 190] KINDS OF TENANCY. 226 
 
 The lessor may by actual entry upon the ground determine his will 
 in the absence of the lessee; but by words spoken off the land, the 
 will is not determined till the lessee has notice. 
 
 § 189. Recovery of rent till time of alienation. — Where a. tenancy 
 at will is determined between rent days by a transfer of the premises, 
 rent can not be recovered for the portion of the period the tenant was 
 in occupation. The landlord can not recover it from the occupier as 
 tenant at will because he has determined this tenancy between two 
 rent days, and the rent can not be apportioned. He can not recover 
 it from the occupier as tenant at sufferance, because during that time 
 the occupier was tenant at will.^°* This rule has been applied against 
 a landlord suing for rent in a case where the conveyance which termi- 
 nated the tenancy at will was made on the last day of a monthly term. 
 The tenant at will was not turned out, and there was an agreement 
 that he should not be turned out without a month's notice. The rent 
 was not due till sunset, and the transfer was made before that time. 
 It was argued that the law did not regard fractions of a day. The 
 court replied that when it was important for the rights of parties to 
 determine which of two events happening on the same day is to have 
 priority over the other, the law does not hesitate to pass upon the ques- 
 tion.i*'^ In this case the tenancy at will was not changed to a tenancy 
 at sufferance by the conveyance, but remained a tenancy at will under 
 the new landlord, so that he could recover rent for the entire month. 
 In Massachusetts, after the tenancy at will has been terminated by a 
 written lease, the former tenant at will becomes liable for rent under 
 the statute applicable to tenants at sufferance. The right of action 
 to sue for such rent is in the lessee taking under the written lease, and 
 it is improper to join the owner of the premises in such a suit.^"° 
 
 § 190. The estate of a tenant at will is not an interest capable of 
 bargain and sale. It cannot be assigned without the landlord's con- 
 sent. An unauthorized transfer gives the transferee no right that he 
 can hold against the will of the landlord.^**^ Not only can the tenant 
 
 (Mass.) 519, per Gray, J.; Furlong 121 Mass. 178, and Nicholson v. 
 
 V. Leary, 8 Cush. (Mass.) 409; Miz- Munigle, 6 Allen (Mass.) 215. 
 
 ner V. Munroe, 10 Gray (Mass.) 290; ^"^ Hammond v. Thompson, 168 
 
 Doe V. Thomas, 6 Exch. 854, 857; Mass. 531, 47 N. E. 137. 
 
 Pinhorn v. Souster, 8 Exch. 763, 770. '"^ Cof ran v. Shepard, 148 Mass. 
 
 ^»* Emmes v. Feeley, 132 Mass. 346, 582, 20 N. E. 181. 
 
 citing Fuller v. Swett, 6 Allen ^^^ Alabama: Cook v. Cook, 28 Ala. 
 
 (Mass.) 219, n.; Dexter v. Phillips, 660. California: McLeran v. Ben-
 
 227 TEXANCY AT WILL. [§ 190 
 
 confer no rights on his assignee, but by his attempted transfer he for- 
 feits his own rights and relinquishes his estate.^"^ If a tenant at will 
 assigns his estate to another who enters upon the land, the latter is a 
 disseisor, and the landlord may have an action of trespass against 
 him.^"^ So in case a lessee at will makes a mortgage to a stranger 
 in fee the lessor may have trespass forthwith against the mortgagee. 
 And it is no bar to such action that the mortgagee has been put into 
 possession by the sheriff under a writ of habere facias}'^^ Not only 
 is a tenant at will precluded from assigning his interest without the 
 consent of his landlord, but he can not even grant a sublease out of 
 his estate. The sublessee would not succeed to the rights of his lessor 
 but would be a mere tenant at sufferance to the original landlord and 
 could be ousted without notice.^^^ 
 
 However, although a tenant at will has no assignable estate, yet if 
 he attempts to make an assignment and the landlord recognizes the 
 assignee as a tenant, the latter becomes a tenant at will just the same 
 as his predecessor."^ The assignee entering into possession may, at 
 the election of the owner of the leased premises, be treated either as a 
 tenant or as a trespasser. ^^^ Accordingly, the general doctrine, that 
 the making of a lease by a tenant at will terminates his tenancy and 
 converts him into a disseisor, must be understood with this qualifica- 
 tion, that it has this effect only at the election of the landlord, and 
 that the tenant can not avail himself of it to avoid the payment of 
 rent."* 
 
 It makes no difference whether the tenant's transfer is voluntary or 
 involuntary as far as the effect in determining the estate at will is 
 concerned, for such an interest is not the subject-matter of a judicial 
 
 ton, 73 Cal. 329, 14 Pac. 879. Geor- Mass. 309; Howell v. Howell, 7 Ired. 
 
 gia: Atlanta &c. R. Co. v. McHau, L. (N. Car.) 496; McCann v. Rath- 
 
 110 Ga. 543, 35 S. E. 634. Massa- bone, 8 R. I. 403. 
 
 chusetts: Cooper v. Adams, 6 Cush. "'Cooper v. Adams, 6 Cush. 
 
 87. Maine: Cunningham v. Holton, (Mass.) 87; Cunningham v. Holton, 
 
 55 Me. 33; Dingley v. Buffum, 57 Me. 55 Me. 33. 
 
 381. North Carolina: Howell v. "" Little v, Palister, 4 Me. 209. 
 
 Howell, 7 Ired. L. 496. New Hamp- "^ Meier v. Thiemann, 15 Mo. App. 
 
 shire: Wittemore v. Gibbs, 24 N. H. 307. 
 
 484; Austin v. Thomson, 45 N. H. "^ Landon v. Townshend, 129 N. Y. 
 
 113, 117. Rhode Island: McCann v. 166, 29 N. E. 71, 41 N. Y. St. 419, 
 
 Rathbone, 8 R. I. 403. affirming 38 N. Y. St. 714, 14 N. Y. 
 
 """Cook v. Cook, 28 Ala. 660 ;Mc- S. 522. 
 
 Leran v. Benton, 73 Cal. 329, 14 Pac. '" McCann v. Rathbone. 8 R. I. 403. 
 
 879; Cooper v. Adams, 6 Cush. "' Cook v. Cook, 28 Ala. 660. 
 (Mass.) 87; King v. Lawson, 98
 
 §§ 191, 192] KINDS OF TENANCY. 338 
 
 sale."^ So even where a tenant at will assented to a levy on the land 
 as his property, this determined the tenancy, and the landlord could 
 bring trespass against the Judgment creditor for his entry.^^^ 
 
 § 191. Notice to the landlord is essential in order that an assign- 
 ment by a tenant at will shall determine the estate. Parke, B., after 
 reserving this question for consideration, pronounced his opinion 
 thus: "It, however, now seems clear, from a case in Yelverton, that 
 the assignment by the tenant at will of his interest to a third party 
 is no determination of the tenancy, unless the lessor at will have 
 notice. That was so decided by the members of the court in Carpen- 
 ter V. Colins;^'^'' . . . the principle laid down in that case 
 clearly is that a tenant at will can not determine his tenancy by trans- 
 ferring his interest to a third party without notice to his landlord."^^* 
 
 III. Tenancy from Year to Year. 
 
 § 192. Rests on judicial not statutory authority. — The law re- 
 specting tenancies from year to year is not of statutory but judicial 
 creation, whereby certain restraining limitations were placed upon 
 both landlord and tenant where the holding was at will. Statutes on 
 the subject were merely declaratory of those rules.^^^ The origin of 
 estates of this kind has been well stated by Wilmot, J., who said : "In 
 the country leases at will, in the strict legal notion of leases at will, 
 being found extremely inconvenient, exist only notionally, and were 
 succeeded by another species of contract which was less inconvenient. 
 At first it was indeed settled to be for a year certain, and then the 
 landlord might turn the tenant out at the end of the year. It is now 
 established that if a tenant takes from year to year, either party must 
 give a reasonable notice before the end of the year, though that rea- 
 sonable notice varies according to the customs of different coun- 
 ties."i2o 
 
 It thus appears that a tenancy from year to year is a qualified 
 tenancy at will introduced to obviate the inconveniences of that kind 
 of estate ; and the qualification requires the determination of the will 
 to be prospective, to take effect at the end of a current year of the 
 
 "' Atlanta &c. R. Co. v. McHan, 110 "* Hauser v. Romer, 4 Ky. L. R. 
 
 Ga. 543, 35 S. E. 634. 815. 
 
 "« Campbell v. Procter, 6 Me. 12. "° Timmins v. Rowlinson, 3 Burr. 
 
 '" Yelv. 73. ' 1609. quoted In Goddard v. South 
 
 "«Pinhorn v. Souster, 8 Exch. Carolina R. Co., 2 Rich. L. (S. C.) 
 
 763, 772. 346.
 
 229 
 
 TENANCY FROM YEAR TO YEAR. 
 
 [§ 193 
 
 tenaney.^^^ There is another view of the nature of a year to year 
 tenancy. This is that it is dependent on a presumed oral agreement 
 between the parties which is valid because of the exception in the 
 statute of frauds in favor of parol leases for three years or less. If 
 this be the true theory it follows that in those jurisdictions where no 
 exception is made in favor of short term parol leases, this doctrine of 
 year to year tenancy is illogical. Some courts have, in the absence of 
 any excepting clause in the statute, refused to recognize such tenan- 
 cies,^^- but it woiild seem without sound reason; because the doctrine 
 
 "^Crawford v. Morris, 5 Grat. 
 (Va.) 90. "At common law estates 
 at will are of two classes; estates at 
 will strictly, and estates from year 
 to year. They differ chiefly, if not 
 entirely, in this. The former may be 
 terminated by either of the parties 
 at his pleasure; the latter can be 
 terminated against the will of the 
 other party only at the expiration of 
 the year, month, etc., as the case 
 may be, by a notice to quit, except 
 where one of the parties has failed 
 to perform his part of the contract. 
 The last class of tenancies is so 
 much more favorable to the tenant 
 than the strict tenancy at will that 
 the courts have, from a very early 
 period, leaned strongly in favor of 
 regarding every tenancy, the terms 
 of which do not show a strict ten- 
 ancy at willj or which is not created 
 by a written instrument, as a ten- 
 ancy from year to year." Currier v. 
 Perley, 24 N. H. 219, 222, citing 2 
 Black. Com. 147; 1 Cruise Dig. 260; 
 4 Kent Com. Ill; 2 Greenl. Ev., 
 §§ 319-325. 
 
 "- Hammon v. Douglas, 50 Mo. 434, 
 citing Ellis v. Paige, 1 Pick. (Mass.) 
 43; Hollis v. Pool, 3 Mete. (Mass.) 
 350; Kelly v. Waite, 12 Mete. 
 (Mass.) 300, and Bennock v. Whip- 
 ple, 12 Me. 346. In the course of the 
 opinion the Missouri court say: 
 "The first section of the English 
 statute (29 Car. I, ch. 3) has been 
 adopted in Missouri as well as in the 
 
 other states, but the exception in 
 favor of leases not to exceed three 
 years is omitted in this state. So we 
 have simply the provisions without 
 the exceptions, that all leases, etc., 
 made by parol, and not put in writ- 
 ing, shall have the force and effect 
 of leases at will only. It is diflBcult 
 to see, under this section, how any 
 other lease than at will can be cre- 
 ated by parol. The language seems 
 to be clear and specific, and to hold 
 that a tenancy from year to year 
 can be created by a verbal permis- 
 sion to hold over under a former 
 lease would seem to create a lease 
 other than at will, which is not re- 
 duced to writing. Under the excep- 
 tion in the English statute, which 
 has been adopted along with the 
 first section in most of the states, 
 there is no inconsistency in this 
 view; for as in all leases for less 
 than three years the law stands as 
 before its adoption, and a verbal 
 lease from year to year, which can 
 in no case exceed two years, is as 
 valid as though there were no stat- 
 ute of frauds." 
 
 Further comment on this question 
 was made by Judge Bennett in the 
 case of Barlow v. Wainwright, 22 
 Vt. 88. He said: "It is true the 
 English statute of frauds has an ex- 
 ception, as to leases not exceeding 
 the term of three years; and this is 
 dwelt upon by the court of Massa- 
 chusetts as a reason why the de-
 
 § 193] KINDS OF TENAXCT. 230 
 
 of notice to quit for the purpose of increasing the stability of the 
 tenant's tenure is a very ancient one. It existed before the passage 
 of the English statute of frauds. Nothing in that statute forbids the 
 continued enforcement of the established rules in regard to notice. 
 The presence of the exception in favor of short term parol leases can 
 be accounted for on other grounds than for the purpose of preserving 
 periodical tenancies. The conclusion seems justified, therefore, that 
 the saving clause for short term parol leases was not put into the 
 statute of frauds for the purpose of preserving year to year tenancies ; 
 and that the doctrine of tenancies at will for periodical terms would 
 have been valid even if there had been no such saving clause in the 
 statute of frauds as originally in force in England. 
 
 § 193, Applicable to conditions in this country. — In view of the 
 nature of the origin of periodic tenancies in a species of judicial legis- 
 lation, it has been argued that the law regarding them was not ap- 
 plicable to- the changed conditions existing in the colonies, and that 
 therefore it was not adopted in this country as a part of the common 
 law. This argument was answered by Judge Bell, of the New Hamp- 
 shire Supreme Court, in the middle of the last century. He said: 
 "We are aware of nothing which tends to show that the rules of the 
 common law, relative to estates from year to year, are in any way not 
 applicable to our institutions or to the circumstances of the country. 
 The general system of the common law relating to real estate was 
 beyond question 'adopted and approved and commonly practiced 
 upon' in the transactions of business and *in the courts of law' from 
 the foundation of the province, and we can see no reason to doubt 
 that this portion of it, founded as it is upon much clearer principles 
 
 cisions of the courts of England, un- clared that the estate created by a 
 
 der this statute, should not furnish verbal lease was only an estate at 
 
 a rule for them. I must confess that will, unless it came within the ex- 
 
 I do not see the force of the reason- ception of the English statute, and 
 
 ing of the court, which would pre- that under our statute it might be 
 
 vent an estate at will from being turned into a tenancy from year to 
 
 turned into a tenancy from year to year as well as in England. The 
 
 year in Massachusetts, and allow it court of Maine, in the case of Davis 
 
 under the English statute. In the v. Thompson, 13 Me. 209. 214, under 
 
 case of Hanchet v. Whitney, 2 Aik. a similar statute followed the Mas- 
 
 240, it was not supposed that our sachusetts cases; but no new views 
 
 statute of 1797 would have any other of the question are presented, and 
 
 or greater effect than the English for myself I cannot coincide with 
 
 statute, and [it was supposed] that those cases." 
 both alike, in the first instance, de- 
 
 I
 
 231 TENANCY FROM YEAR TO YEAR. [§§ 194, 195 
 
 of equity and justice than many other parts of it, was adopted with 
 the rest."^" 
 
 § 194. The expression tenant at will from year to year exactly ex- 
 presses the old common law idea of periodical tenure and in view of 
 the nature and origin of the doctrine is the most natural and appro- 
 priate term to describe such holdings. Where the law would not raise 
 the implication of recurring periodical terms, the distinguishing mode 
 of expression was to call such relation a tenancy strictly at will. Thus 
 it is perfectly accurate and consistent to say that one occupying, under 
 an oral agreement for a written lease, a yearly rent being reserved, is 
 a tenant at will from year to year and must give a notice to quit.^-* 
 A tenancy from year to year or a tenancy from month to month is a 
 modified tenancy at will. The modification did not alter the essential 
 elements of the tenure, but only set up certain restrictions as to the 
 termination of the will. For the sake of convenience, a period of 
 notice is required before either party can terminate the will, and in 
 addition the holding can only be brought to a close at the end of a 
 year. In a case where there was a letting for an indefinite period at 
 a monthly rent an express agreement by the tenant to give up posses- 
 sion when it was required did not relieve the landlord from the 
 necessity of giving a full month's notice prior to one of the monthly 
 periods.^^^ 
 
 § 195. Similarity to estates for term of years. — In certain respects 
 a tenancy from year to year resembles a holding under a lease for a 
 definite term of one year. The tenant from year to year is bound for 
 the full year's rent even though he abandons the premises. If the 
 landlord choose to hold him, a tenant from year to year is in no better 
 position in regard to escaping liability for rent than is a lessee who 
 is bound by express covenants. ^^"^ Parties have repeatedly been held 
 
 ^ Currier v. Perley, 24 N. H. 219, as well defined as that between one 
 
 223. for life and one for years. There is 
 
 '" Huntington v. Parkhurst, 87 no such estate as one 'at will from 
 Mich. 38, 49 N. W. 597; Tuttle v. year to year.' The assertion that 
 Langley, 68 N. H. 464, 39 Atl. 488. there is such a tenancy as one 'at 
 The historical origin of periodical will from year to year,' is a sole- 
 tenancies is sometimes lost sight of, cism." Park v. Castle, 19 How. Pr. 
 and this leads to such a mistake as (N. Y.) 29. 
 
 the New York Supreme Court made *" Woodrow v. Michael, 13 Mich, 
 
 in the following quotation: "The 187. 
 
 distinction between a tenancy at '*' Lockwood v. Lockwood, 22 
 
 will, and one from year to year, is Conn. 425; Currier v. Perley, 24 N.
 
 § 196] KINDS OF TENANCY. 232 
 
 liable in actions for use and occupation, although there has not been 
 an actual occupation, for the whole term in respect to which the 
 actions were brought.^^^ And if during the continuance of a ten- 
 ancy, the tenant abandons the possession of the premises he is as much 
 liable for the rent as though he had continued his occupancy.^^^ So 
 in accordance with the general rule regarding leases for fixed terms, 
 unless there is an agreement to the contrary, rent on a yearly tenancy 
 is not due till the end of the term, and a suit to recover it prior to 
 that time is premature.^^^ But the rent does become due at the end 
 of every year, so that the right of action for the rent accrues then, and 
 the statute of limitations against such right of action begins to run 
 at the same time.^^" 
 
 The general rule is that a grant of the reversion has no efEect upon 
 the validity of an outstanding term of years, and the same tolds 
 true of a grant of the reversionary interest after a tenancy from year 
 to year. Unlike a strict tenancy at will, a term from year to year is 
 not changed by a conveyance of the reversion, and the holding can 
 only be terminated by a notice in the ordinary form. By the sale and 
 conveyance of the real estate and the recognition of such sale by 
 the tenant and the payment of rent to the grantee, the tenant be- 
 comes the tenant of the grantee, but this does not change the nature 
 of the tenancy or give the tenant any greater rights than he otherwise 
 had. If the grantor had leased the real estate for one year, and within 
 the year had conveyed the premises, it certainly would not be con- 
 tended that the lease was extended, or that the lessee would have any 
 greater right by reason of such sale. The rights of the lessee remain 
 the same ; the sale of the real estate did not add to or take away any- 
 thing from the tenancy. ^^^ A tenancy from year to year is to be con- 
 sidered as recommencing every year.^^^ 
 
 § 196. Statutory modifications. — The entire topic of estates at will 
 and from year to year is rather generally covered by statutes, which 
 prescribe the form of notice, the length of time it must cover and the 
 
 H. 219; Tanton v. Van Alstine, 24 ""Cowan v. Henika, 19 Ind. App. 
 
 111. App. 405. 40, 48 N. E. 809. 
 
 ^^ Pinero v. Judson, 6 Bing. 206, '" Swope v. Hopkins, 119 Ind. 125, 
 
 19 E. C. L. 100. 21 N. E. 462; Kellum v. Berkshire 
 
 ""Bacon v. Brown, 9 Conn. R. 334; &c. Ins. Co., 101 Ind. 455. 
 
 Lockwood v. Lockwood, 22 Conn. ''= Tomkins v. Lawrence, 8 C. & 
 
 425. P. 729; Gladwell v. Holcomb, 60 
 
 '■'> Indianapolis &c. R. Co. v. First Ohio St. 427, 54 N. E. 473. 
 Nat. Bank, 134 Ind. 127, 33 N. E. 
 679.
 
 233 TENANCY FROM TEAR TO YEAR. [§ 197 
 
 mode of serving it in order that a holding of this kind may be brought 
 to an end. In view of the fact that the doctrine of tenancy from 
 year to year originated in a kind of judicial legislation, a doubt has 
 been raised as to whether it could be regarded as still existing when 
 the matters of notice and so forth were regulated by statute. The best 
 view is that tenancies from year to year continue to exist until ex- 
 pressly abolished by statute. Judge Mitchell said in regard to this 
 question: "While tenancies from year to year are the creation of 
 judicial decisions, based upon principles of policy and justice, out of 
 what were anciently tenancies strictly at will, terminable at any time 
 by either party without notice, yet such tenancies had become so well 
 established and so fully recognized in the common law that it would 
 naturally be supposed that, if it had been intended to convert them 
 into mere tenancies at will, it would have been done by express and 
 clear language, and not left to mere inference and implication."^^^ 
 
 § 197. An estate at will is converted into an estate from year to 
 year by the payment of rent; the conversion is wrought, not by the 
 length of time of the holding, but by the fact that the tenant entered 
 under an agreement to pay an annual rent and pays accordingly.^^* 
 A general occupancy by one other than the owner of land will be 
 treated as a tenancy from year to year whenever the reservation of 
 rent or other circumstances plainly indicate an agreement for an 
 annual holding.^^^ On the tenant's first going into occupation he 
 holds as a tenant at will and his tenure becomes a year to year hold- 
 ing by the lapse of time and the payment of rent. Although it is 
 sometimes laid down without qualification that occupation under a 
 void lease creates a tenancy from year to year, regardless of whether 
 an annual rent is received or paid,^^*' this is not true of an occupation 
 without payment of rent and with no agreement as to time of hold- 
 ing, which creates but a strict tenancy at will.^^^ Entry under a lease 
 void because of the statute of frauds and occupation by the tenant 
 does not of itself make him a tenant from year to year ; he is a tenant 
 
 "'Hunter v. Frost, 47 Minn. 1, 49 Stillwell, 28 Mo. 400; Rogers v. 
 
 N. W. 327. Wheaton, 88 Tenn. 665, 13 S. W. 
 
 "*Silsby v. Allen, 43 Vt. 172. 689; Indianapolis &c. R. Co. v. First 
 
 ^^ Farley v. McKeegan, 48 Neb. Nat. Bank, 134 Ind. 27, 33 N. E. 679. 
 237, 67 N. W. 161; Judd v. Fairs, 58 ^"Kankakee &c. R. Co. v. Horan, 
 
 Mich. 518, 19 N. W. 266. 131 111. 288, 23 N. E. 621; Johnson v, 
 
 "'Larkin v. Avery, 23 Conn. 304, Johnson, 13 R. I. 467; Braythwayte 
 
 316; Hunt V. Morton, 18 111. 75; Kerr v. Hitchcock, 10 M. & W. 494; Do© 
 
 V. Clark, 19 Mo. 132; Ridgley v. v. Wood, 14 M. & W. 682.
 
 t 197] 
 
 KIXDS OF TENAXCY. 
 
 234 
 
 at will inerel3\ In order to create a tenancy from year to year some 
 acts must occur from which a new agreement can be inferred, such 
 as the payment of some aliquot part of a yearly rent. Without evi- 
 dence to the contrary, such payment is controlling evidence of a year 
 to year tenancy. ^^* When the entry into occupation has been under a 
 void parol lease, which reserves an annual rent, the payment of any 
 aliquot part of such rent will have the effect of creating a tenancy 
 from year to year, or at least for one year.^^^ Where land has been oc- 
 cupied on shares, a verbal agreement that the tenant should have it 
 three years more on shares, although within the statute of frauds, 
 will support a holding from year to year until ended by notice.^*'' 
 
 The leading circumstance which turns parol leases for uncertain 
 terms into tenancies from year to year is the reservation of an annual 
 rent.^*^ And it has been held that the reservation of an annual rent 
 is essential to the creation of this kind of holding. Mere length of 
 acquiescence in the tenants would not ripen into a tenancy from year 
 to year in the absence of this essential element of annual rent. Thus 
 there is a decision that the letting of a shed to be used as a stable, for 
 the dung as compensation, created a tenancy at will, and not from 
 year to year, because there was no reservaiton of rent referable to a 
 year or to some aliquot part of a year.^*^ On the other hand, it has 
 
 ^^ Barrett v. Cox, 112 Mich. 220, 
 70 N. W. 446; Williams v. Deriar, 31 
 Mo. 13; Richardson v. Langridge, 4 
 Taunt. 128; Braythwayte v. Hitch- 
 cock, 10 M. & W. 494, 497; Talamo 
 V. Spitzmiller, 120 N. Y. 37, 23 N. E. 
 980; Doe v. Wood, 14 M. & W. 682. 
 Where a landlord had broken his 
 covenant to supply a stairway to a 
 tenant who had a four-years' lease, 
 hut allowed him to use another 
 stairway and some floor space, it 
 was held that since tenant had en- 
 tered and paid rent, it created a 
 tenancy from year to year. Blumen- 
 thal V. Bloomingdale, 100 N. Y. 558, 
 3 N. E. 292, affirming 30 Hun 382. 
 As a matter of fact, no rent was paid 
 for the stairway and floor space; the 
 only consideration was the implied 
 agreement not to sue the landlord 
 for breach of covenant. This was 
 not an annual payment. The only 
 theory on which to support the case 
 
 is that the lease was surrendered 
 in toto and replaced by a new verbal 
 letting. 
 
 "^ Steketee v. Pratt, 122 Mich. 80. 
 80 N. W. 989; Huntington v. Park- 
 hurst, 87 Mich. 38, 24 Am. St. 146. 
 
 ""Coan V. Mole, 39 Mich. 454. 
 
 "^Alabama: Duncan v. Potts, 5 
 Stew. & P. 82. Illinois: Packard v. 
 Cleveland &c. R. Co., 46 111. App. 
 244; Herrell v. Sizeland, 81 111. 457. 
 Kentucky: Squires v. Huff, 3 A. K. 
 Marsh 17. Missouri: Williams v. 
 Deriar, 31 Mo. 13. New York: 
 Jackson v. Bradt, 2 Caines 169. 
 Rhode Island: Johnson v. Johnson, 
 13 R. I. 467. English: Doidge v. 
 Bowers, 2 M. & W. 365; Pope v. 
 Garland, 4 Y. & C. 394. 
 
 ^"Rich V. Bolton, 46 Vt. 84, 88; 
 Mcintosh V. Hodges, 110 Mich. 319, 
 68 N. W. 158; Richardson v. Lang- 
 ridge, 4 Taunt. 128; Roe v. Lees, 
 2 W. Bl. 117L
 
 235 
 
 TENANCY FROM YEAR TO YEAR. [§1^8 
 
 been held that such a tenancy at will may be changed into a tenancy 
 from year to year by other circumstances indicating that to be the 
 intention of the parties, as well as by the acceptance of annual rent.^" 
 According to this doctrine, -where the tenant was to pay his rent for five 
 years by putting the premises in repair,^** and where certain debts 
 were to be paid by the tenant out of the proceeds of the income from 
 the property,"^ it was held a sufficient reservation of an annual rent 
 to constitute the holding a year to year tenancy. 
 
 Wliere land was mistakenly supposed to have been included in a 
 lease, lessees occupying it become, by payment and acceptance of rent, 
 tenants from year to year of such land."^ 
 
 § 198. The receipt of rent by a landlord from which a tenancy 
 from year to year is inferred may be explained on other grounds. 
 
 The principle, that the payment of rent may be explained, -for the 
 purpose of protecting parties from the legal consequences which 
 would otherwise follow from such payments, has been recognized in 
 previous cases,^*^ and it is consistent with the general principles of 
 law.^*^ In one case the landowner gave evidence for the purpose of 
 showing that his receipt of rent had taken place under a mistake of 
 fact in respect of the determination of the lease, which had improperly 
 been concealed from him. Upon that explanation, the question was 
 no longer what was the legal presumption from the unexplained pay- 
 ment of rent, but whether the evidence offered to explain the receipts 
 on the part of the lessor did establish, that, in point of fact, the rent 
 had been received in relation to the old lease, and not upon a new 
 agreement. Such a ruling is not inconsistent with the principle, that, 
 from the payment of rent, unexplained, the law will imply a tenancy 
 from year to year.^'*'' 
 
 If the doctrine of tenancy rests on the presumption of an actual 
 agreement of the parties to that effect, it naturally follows that the 
 tenancy continues to be at will when the parties expressly so stipulate 
 and there is a case supporting this view ;^^'' but if the doctrine is an 
 
 "^ Dumn v. Rothermel, 112 Pa. St. & P. 326; Rogers v. Pitcher, 1 
 
 272, 3 Atl. 800. Marsh. 541, 6 Taunt. 202. 
 
 '" Brant v. Vincent, 100 Mich. "' Gravenor v. Woodhouse, 1 Bing. 
 
 426, 59 N. W. 169; Thomas v. 38, 43, 7 Moore 289, 299; Fenner v. 
 
 Wright, 9 S. & R. (Pa.) 87. Duploclt, 2 Bing. 10, 9 Moore 38. 
 
 "^Leavitt v. Leavitt, 47 N. H. "» Doe v. Crago, 6 C. B. 90, 60 E. 
 
 329. C. L. 89. 
 
 "° Jackson v. Wilsey, 9 Johns. (N. ""Sullivan v. Enders, 3 Dana 
 
 Y.) 267. (Ky.) 66. 
 
 "^Williams v. Bartholomew, 1 B.
 
 § 199] KINDS OF TENANCY. 236 
 
 arbitrary rule of law, enforced without regard to the actual wishes of 
 the parties, such an agreement would not control the ordinary conse- 
 quence flowing from possession and payment of an annual rent. 
 
 § 199. Where a tenant enters and occupies under an invalid parol 
 lease, the agreement governs the terms of the holding as to the 
 
 amount and time for pajTnent of rent and as to other matters, but 
 not as to the duration of the term.^^^ In an early English case a 
 tenant was let into possession under an agreement which gave the 
 parties a right to go into equity to compel the execution of a formal 
 lease. The court decided under such circumstances that the tenant 
 would hold on the terms of the intended lease. One of the terms was 
 that the lessee should not take successive crops of corn, and that the 
 lessor should have power to reenter on the breach of such agreement. 
 This agreement and proviso would apply to the yearly tenancy cre- 
 ated. It was argued that the terms of the lease could not be applied 
 to the parol tenancy, inasmuch as some of them, such as the agree- 
 ment for repairs, were not usually considered as applicable to such 
 tenancy. Although it might be questionable whether an obligation to 
 repair could be enforced under such circumstances, at all events the 
 agreement as to cropping the land was one which was consistent with 
 a yearly tenancy. There is no reason why an agreement regarding 
 the rotation of crops cannot be engrafted on a yearly tenancy, and a 
 condition for reentry is also applicable to this tenancy.^ ^^ The special 
 provisions in a parol lease for more than a year are valid to the ex- 
 tent that they will prevent the lessee from making any use of the pos- 
 session not contemplated by the parties or any use of it that will be 
 detrimental to the landlord.^^^ So after a tenant had enjoyed the 
 term under a parol lease he would be liable for a breach of collateral 
 covenants in regard to the mode of cultivation.^^^ A lease void under 
 
 1=^ Connecticut: Larkin v. Avery, 10 R. I. 355. Tennessee: Shepherd 
 
 23 Conn. 304, 316. Indiana: Rails- v. Cummings, 1 Coldw. 354. Illi- 
 
 back v. Walke, 81 Ind. 409; Nash nois: Donohue v. Chicago &c. Co., 
 
 V. Berkmeir, 83 Ind. 536. New 37 111. App. 552; Field v. Herrick, 
 
 York: Laughran v. Smith, 75 N. Y. 14 111. App. 181. Vermont: Barlow 
 
 205; Reader v. Sayre, 70 N. Y. 180; v. Wainwright, 22 Vt. 88. England: 
 
 Kernochan v. Wilkens, 3 N. Y. App. Doe v. Bell, 5 Term R. 471. 
 
 Div. 596; Schuyler v. Leggett, 2 "= Doe v. Amey, 12 A. & E. 476. 
 
 Cow. 660. North Dakota: Peoples "^Phillips v. Robertson, 4 Hayw. 
 
 v. Evens, 8 N. Dak. 121, 77 N. W. (Tenn.) 153, 158, citing Doe v. 
 
 93. Ohio: Baltimore &c. R. Co. v. Amey, 12 A. & E. 476. 
 
 West, 57 Ohio St. 161. 49 N. E. 344. ^" Bridgman v. Wells, 13 Ohio 43, 
 
 Rhode Island: Thurber v. Dwyer, citing Doe v. Amey, 12 A. & E. 476. 
 
 i
 
 237 
 
 TENANCY FROM TEAR TO YEAR. [§' 199 
 
 the statute of frauds because not in writing will nevertheless regulate 
 the terms of the tenancy as respects the rent.^"^^ Thus the time for 
 payment of rent and the amount thereof will be regulated by the oral 
 aoreement."^ And a parol agreement for setting off expenses in- 
 curred by a lessee in making improvements against the amount of rent 
 due from him by virtue of the same parol agreement is valid. ^" If 
 a party enter under an invalid agreement, or under an agreement 
 not amounting to a demise, he shall still hold subject to the terms of 
 that agreement, so far as they are not at variance with the species of 
 tenancy which the law under the circumstances creates.^^^ A landlord 
 suing for rent must proceed, either upon an express contract made 
 with the tenant or upon a contract which the law will imply from the 
 relation subsisting between them, and where there is an express con- 
 tract between the parties none can be implied. ^^^ If a tenant, after 
 having occupied property, under a parol demise, can turn around 
 and say to his landlord, you cannot recover the rent, for I object to 
 any parol evidence of my agreement to pay it, it might well justify a 
 remark made by Chief Justice Best: "This is one of the most in- 
 iquitous objections ever made."^^*' The statute of frauds would then 
 be converted into an instrument to protect fraud instead of operating 
 to prevent it. 
 
 Ordinarily the time when a year to year tenant entered into pos- 
 session determines the time when his holding must be brought to an 
 end. But it seems that this might be modified or changed by agree- 
 ment between the parties. Lord Kenyon in deciding such a case said : 
 "It was agreed that the defendant should quit at Candlemas, and 
 though the agreement is void as to the number of years for which the 
 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."^" The view of Lord Kenyon has not, however, been sus- 
 tained by authority, and the present rule is that "in all cases the cur- 
 rent year refers to the time of entry rather than to the time of year 
 
 "'Nash V. Berkmeir, 83 Ind. 536; 111. App. 552; Barlow v. Wain- 
 Roberts V. Tennell, 3 T. B. Mon. wright, 22 Vt. 88. 
 (Ky.) 247, 253; Evans v. Winona "'King v. Woodruff, 23 Conn. 56. 
 lAimber Co., 30 Minn. 515, 16 N. W. "^ Berrey v. Lindley, 3 M. & G. 
 404; Steele v. Anheuser-Busch &c. 498, 42 E. C. L. 263. 
 Assn., 57 Minn. 18, 58 N. W. 685; "= Hall v. Burgess, 5 B. & C. 332, 
 Walker v. Shakelford, 49 Ark. 503, 11 E. C. L. 485. 
 5 S. W. 887. "° Seago v. Deane, 4 Bing. 459, 13 
 
 i=«Donohue v. Chicago &c. Co., 37 E. C. L. 588. 
 
 "1 Doe v. Bell, 5 Term R. 471.
 
 § 200] KINDS OF TENANCY. 238 
 
 when the invalid parol lease would terminate by its own limitation, 
 unless the parties stipulate to the contrary."^®^ 
 
 Actual occupation under a parol lease gives ample notice of the 
 lessee's rights to a purchaser as much as occupation under a valid 
 lease would do.^®^ 
 
 § 200. The form of action to recover rent when occupation has 
 been under a void agreement is one for use and occupation. After 
 some controversy in the English cases, the question was put at rest 
 there by statute,^^* In the United States the courts, disregarding the 
 opposing decisions of the English courts, held without the aid of a 
 statute that an action of indebitatus assumpsit might be maintained, 
 even upon an implied promise arising from the permitted use and 
 occupation of real estate.^"^ Although the action is not based on the 
 void agreement, reference may be made to it to determine the amount 
 of rent. Chief Justice Gibbs said in an early nisi prius case, where it 
 was attempted to hold a tenant for rent on a parol lease : "The agree- 
 ment is void by the statute of frauds; but I am of opinion that you 
 may still resort to it to calculate the amount of rent. In case the ten- 
 ant under such an agreement should take possession, he would be a 
 tenant at will."^*^® Where the right of the landlord is made to depend' 
 on the wording of the statute, that "no action shall be brought" on 
 such contracts,^^'' a change in the statute to the ejffect that such con- 
 tracts are void would change the law. So the Kentucky court held 
 that the parol agreement could not be referred to to determine the 
 amount of rent. The reason for the decision is stated as follows: 
 "And as the contract was non-enforceable, by reason of the statute 
 of frauds, the contract price was also non-enforceable ; for to allow the 
 recovery of the price agreed upon by the contract, but deny an action 
 on the contract itself, would be equivalent to granting and denying 
 the remedy in the same action."^®® 
 
 "=Doe v. Dobell, 1 A. & E. (N. S.) i«^Gunn v. Scovil, 4 Day (Conn.) 
 
 806, 41 E. C. L. 786; Berrey v. Lind- 228; King v. Woodruff, 23 Conn. 56. 
 
 ley, 3 M. & G. 498, 42 E. C. L. 263; ^"^ De Medina v. Poison, Holt N. 
 
 Coudert v. Cohn, 118 N. Y. 309, 23 P. 47. 
 
 N. E. 298. "' Roberts v. Tennell, 3 T. B. Men. 
 
 "'Sheets v. Allen, 89 Pa. St. 47. (Ky.) 247, 253. 
 
 ^" 11 Geo. 2 ch. 19, § 14. See also, ^^ Ragsdale v. Lander, 80 Ky. 61, 
 
 Cocking V. Ward, 1 M. G. & S. 858, 64. 
 50 E. C. L. 858; Price v. Leyburn, 1 
 Gow 109.
 
 239 
 
 TENANCY PROM YEAR TO YEAR. 
 
 [§ 301 
 
 § 201. Yearly tenancy created by holding over. — One of the most 
 common ways in which a tenancy from year to year originates is for a 
 landlord to allow his tenant for years to hold over after the expiration, 
 of the term. In all jurisdictions where the doctrine of tenancy from 
 year to year is recognized, the rule is universal that if a tenant con- 
 tinue in possession after the end of his term, the landlord may charge 
 him on the contract as yearly tenant.^^'' As far back as the case of 
 Wright v. Darby, ^'^^ decided in the eighteenth century. Lord Mans- 
 field said: "If there be a lease for a year, and by consent of both, 
 parties the tenant continue in possession afterwards, the law implies- 
 a tacit renovation of the contract. They are supposed to have renewed 
 the old agreement, which was to hold for a year." "Where a party 
 holds over after his lease has expired, the inference that the parties 
 consent to a continuation of the same term is so strong that it is 
 adopted as a rule of law."^ 
 
 Although the tenant has no intention of entering into an agree- 
 ment for another year, the landlord has the option to charge him as 
 tenant for a full year by reason of his holding over, or the landlord 
 
 *'^ Alabama: Ames v. Schuesler, 
 14 Ala. 600; Crommelin v. Thiess, 
 31 Ala. 412. Arkansas: Belding v. 
 Texas Produce Co., 61 Ark. 377, 33 
 S. W. 421, Colorado: Burkhard v. 
 Mitchell, 16 Colo. 376,. 26 Pac. 657; 
 Sears v. Smith, 3 Colo. 287. 
 Georgia: Roberson v. Simons, 109 
 Ga. 360, 34 S. E. 604. Illinois: 
 Hately v. Myers, 96 111. App. 217. 
 Indiana: Kleespies v. McKenzie, 12 
 Ind. App. 404, 40 N. E. 648. 
 Kansas: Adams Express Co. v. Mc- 
 Donald, 21 Kan. 680; Wheat v. 
 Brown, 3 Kan. App. 431, 43 Pac. 
 807. Maryland: Hall v. Myers, 43 
 Md. 446; Hobbs v. Batory, 86 Md. 
 68, 37 Atl. 713. Minnesota: Gard- 
 ner V. Board of Com'rs, 21 Minn. 
 33. Missouri: Stoops v. Devlin, 16 
 Mo. 162; Finney v. St. Louis, 39 
 Mo. 177; Quinette v. Carpenter, 35 
 Mo. 502. Nebraska: Critchfield v. 
 Remaley, 21 Neb. 178, 31 N. W. 687; 
 Montgomery v. Willis, 45 Neb. 434, 
 63 N. W. 794; Bradley v. Slater, 50 
 Neb. 682, 70 N. W. 258. New Jer- 
 sey: Yetter v. King &c, Co., 66 N. 
 
 J. Law 491, 49 Atl. 678. North 
 Carolina: Harty v. Harris, 120 N. 
 Car. 408, 27 S. E. 90. Oregon: 
 Parker v. Page, 41 Ore. 579, 69 Pac. 
 822. Pennsylvania: Phoenixville 
 Borough v. Walters, 147 Pa. St. 501, 
 23 Atl. 776; Harvey v. Gunzberg, 
 148 Pa. St. 294, 23 Atl. 1005. South 
 Carolina: State v. Fort, 24 S. Car. 
 510. South Dakota: Banbury v. 
 Sherim, 4 S. Dak. 88, 55 N. W. 723. 
 Texas: Shipman v. Mitchell, 64 
 Tex. 174. Vermont: Amsden v. At- 
 wood, 67 Vt. 289, 31 Atl. 448. Vir- 
 ginia: Emerick v. Tavener, 9 Grat. 
 220; Peirce v. Grice, 92 Va. 763, 24 
 S. E. 392. West Virginia: Allen v. 
 Bartlett, 20 W. Va. 46. Wisconsin: 
 Ganter v. Atkinson, 35 Wis. 48; 
 Peehl V. Bumbalek, 99 Wis. 62, 74 
 N. W. 545. England: Right v. Dar- 
 by, 1 Term R. 161. 
 
 "°1 Term R. 161, quoted in Rob- 
 erson V. Simons, 109 Ga. 360, 34 S. 
 E. 604. 
 
 "' New York &c. R. Co. v. Randall^ 
 102 Ind. 453, 26 N. E. 122.
 
 §■ 202] KINDS OF TENANCY. 240 
 
 may expel him as a trespasser. The law fixes the tenant's liability 
 for holding over without regard to his wishes in the matter.^^^ 
 After a landlord gives the proper notice to bring a tenancy to an 
 end and withholds his consent to a renewal of the agreement, the ten- 
 ant continuing in occupation after the expiration of the term, stands 
 in the position of a trespasser. During such time as he continues to 
 occupy he is liable not for rent at the rate reserved in the lease, but 
 for the value of the use of the property or the mesne profits.^" Fur- 
 thermore, the judgment in forcible detainer proceedings being con- 
 clusive evidence that the tenants were treated by the landlord as 
 trespassers, it was therefore proper for the court to direct the jury 
 that they might allow interest on the rental value of the premises 
 wrongfully withheld. ^'^^ It is not necessary in order to charge a ten- 
 ant for another year that the act of remaining in possession after the 
 termination of his lease should be done by him personally. A holding 
 over by a sub-tenant is in legal contemplation a holding over by the 
 lessee, and has the same effect.^^^ 
 
 A new tenancy arising by implication from a holding over is not 
 by virtue of the original lease. This question was brought before 
 the court in determining the validity of a reduction in rent during a 
 period of holding over. It was argued that the original lease being 
 under seal could not be changed by parol, but the court replied that 
 the new tenancy was one created by operation of law and was in the 
 nature of a parol agreement between the parties.^'^^ 
 
 § 202. The terms of a year to year holding are the same as those 
 of the lease which preceded it in the absence of any agreement chang- 
 ing them."" The presumption of law is that the tenant holds the 
 
 "= Illinois: Clinton &c. Co. v. i" Keegan v. Kinnare, 123 111. 280, 
 
 Gardner, 99 111. 151; Goldsborough 14 N. B. 14. 
 
 V. Gable, 140 111. 269, 29 N. E. 722; i^* Lambert v. Borden, 16 111. App. 
 
 Keegan v. Kinnare, 123 111. 280, 14 431. 
 
 N. E. 14. Indiana: Tolle v. Orth, ^^^Berkowsky v. Cahill, 72 111. 
 
 75 Ind. 298. Nebraska: Bradley v. App. 101; Roberson v. Simons, 109 
 
 Slater, 50 Neb. 682, 70 N. W. 258. Ga. 360, 34 S. E. 604. 
 
 Pennsylvania: Hemphill v. Flynn, "« Goldsbrough v. Gable, 36 111. 
 
 2 Pa. St. 144. Rhode Island: Provi- App. 363. 
 
 dence &c. Bank v. Hall, 16 R. I. '"Alabama: Ames v. Schuesler, 
 
 154, 13 Atl. 122. Tennessee: Noel 14 Ala. 600; Crommelin v. Thiess, 
 
 V. McCrory, 7 Coldw. 623. West 31 Ala. 412. Arkansas: Belding v. 
 
 Virginia: Voss v. King, 38 W. Va. Texas Produce Co., 61 Ark. 377, 33 
 
 607, 18 S. E. 762. Wisconsin: Gil- S. W. 421. Colorado: Sears v. 
 
 man v. City of Milwaukee, 31 Wis. Smith, 3 Colo. 287; Burkhard v. 
 
 563. Mitchell, 16 Colo. 376, 26 Pac. 657.
 
 241 
 
 TENANCY FROM YEAR TO YEAR. 
 
 [§ 202 
 
 premises subject to all the covenants contained in the original lease 
 which are applicable to his present situation."^ This general rule 
 would be qualified where the written lease for the first year contained 
 several collateral matters to be done by each party, which could be 
 performed in the first year only."'' When the case is of such a nature 
 that the facts plainly revolt against material provisions in the old 
 lease, or when, according to the evidence, there is not only no right 
 to infer the assent of the parties, but positive proof that the landlord 
 unqualifiedly dissents, there is no authority for holding that the par- 
 ties are subject as matter of law to the old provisions.^®" In a case 
 where the rent reserved in the original lease consisted in the perform- 
 ance of labor of such nature that, being once performed, it cannot 
 be again done during the period of holding over, there was no room 
 for the application of the general rule.^®^ However, a stipulation in a 
 lease giving the tenant the right to remove fixtures would continue to 
 regulate the rights of the parties during the time the tenant held 
 over.^^2 ^ lessee on shares holding over for another year is liable on 
 an implied agreement for rent upon the terms of the prior lease.^^* 
 It has even been held that a conditional limitation in the original 
 lease allowing the tenant to terminate it on the happening of a certain 
 event, would be implied in the year to year tenancy. Such a provision, 
 mutatis mutandis, was applicable to the new tenancy and the contin- 
 gency having occurred, the tenant had a right to terminate the 
 lease. ^** 
 
 Connecticut: Bacon v. Brown, 9 
 Conn. 335. Kentucky: Whittemore 
 V. Moore, 9 Dana 315. Maine: 
 Wheeler v. Cowan, 25 Me. 283. 
 Maryland: Hobbs v. Batory, 86 Md. 
 68, 37 Atl. 713. Missouri: Hunt 
 V. Bailey, 39 Mo. 257. Nebraska: 
 Bradley v. Slater, 50 Neb. 682, 70 
 N. W. 258. New York: Webber v. 
 Shearman, 3 Hill 547. Oregon: 
 Parker v. Page, 41 Ore. 579, 69 Pac. 
 822. Pennsylvania: Harvey v. 
 Gunsberg, 148 Pa. St. 294, 23 Atl. 
 1005. South Carolina: Dorrill v. 
 Stephens, 4 McCord 59. Texas: San 
 Antonio v. French, 80 Tex. 575, 16 
 S. W. 440. Virginia: Peirce v. 
 Grice, 92 Va. 763, 24 S. E. 392. 
 West Virginia: Voss v. King, 38 
 W. Va. 607, 18 S. E. 762. English: 
 
 Jones L. & T,— 16 
 
 Digby v. Atkinson, 4 Camp. 275; 
 Dougal v. McCarthy, L. R. (1893), 
 1 Q. B. 736; Roe v. Ward, 1 H. Bl. 
 97. 
 
 "« Phillips v. Monges, 4 Whart. 
 (Pa.) 226; Laguerenne v. Dough- 
 erty, 35 Pa. St. 45; Vrooman v. Mc- 
 Kaig, 4 Md. 450. 
 
 "''Diller v. Roberts, 13 S. & R. 
 (Pa.) 60. 
 
 ^'"Ives v. Williams, 50 Mich. 100, 
 15 N. W. 33. 
 
 '*' Martin v. Hamersky, 63 Kan. 
 360, 65 Pac. 637. 
 
 "-Lewis v. Perry, 149 Mo. 257, 50 
 S. W. 821. 
 
 '^ Yates v. Kinney, 19 Neb. 275, 
 27 N. W. 132. 
 
 '" Gardner v. Board of Com'rs, 21 
 Minn. 33.
 
 § 203] KINDS OF TENANCY. 24^ 
 
 Where a tenant holds over after the expiration of his year, and the 
 landlord elects to treat him as a tenant rather than as a trespasser, 
 by demanding rent, the tenant cannot thereafter, in the course of 
 the payment of his rent, create a different tenancy by accompanying 
 such payment with conditions.^^^ Yet if the tenant continues to hold 
 over after being notified that the landlord would require an increased 
 rent, he thereby assents to the increase of rent, and to this extent the 
 terms of the old lease do not apply.^^® Mere negotiations and unac- 
 cepted offers are not, however, to be considered as altering the terms 
 of the leasing. The rental can only be changed by a definite new con- 
 tract.i" 
 
 § 203. Option as to yearly tenancy rests with landlord. — Upon 
 the expiration of a lease for years, the law fixes on the tenant the duty 
 of vacating the leased premises and turning them over to the land- 
 lord, and this duty is usually reinforced by express covenants in the 
 lease itself. It follows that mere holding over by a tenant does not of 
 itself renew the tenancy. It only gives the landlord an option to re- 
 new the term.^^^ A tenant who wrongfully holds over after the end 
 of his term does not immediately become entitled to notice to quit, 
 and a short delay in commencing proceedings against him cannot 
 confer any such right. He cannot acquire such equities by a mere 
 wrongful holding over.^^^ In order that a lessee holding over after 
 the expiration of his term may claim the privileges of a tenant, the 
 landlord must in some manner recognize the tenancy as existing. 
 Where the lessor does no act recognizing a continued tenancy, the 
 tenant holding over is but a tenant at sufferance and not entitled to 
 notice to quit.^®° The covenants in the lease may have a bearing on 
 the effect of a holding over. Thus in one case the lessee had cove- 
 nanted to "deliver up possession at the expiration of the term without 
 
 ^^ Scott V. Beecher, 91 Mich. 590, ^^ Cairo &c. R. Co. v. Wiggins 
 
 52 N. W. 20. Ferry Co., 82 111. 230; Jackson v. 
 
 "^Hunt V. Bailey, 39 Mo. 257; Salmon, 4 Wend. (N. Y.) 327; Jack- 
 
 Despard v. Walbridge, 15 N. Y. 374; son v. McLeod, 12 Johns. (N. Y.) 
 
 Gardner v. Board of Com'rs, 21 182; Wilde v. Cantillon, 1 Johns. 
 
 Minn. 33. Cas. (N. Y.) 123; Emerick v. Tave- 
 
 ^"Holley V. Metcalf, 12 111. App. ner, 9 Grat. (Va.) 220, 236; Hard- 
 
 141. ing V. Crethorn, 1 Esp. 57; Doe v. 
 
 '^Condon v. Brockway, 157 111. Stennett, 2 Esp. 717; Bishop v. 
 
 90, 14 N. E. 634, affirming 50 111. Howard, 2 B. & C. 100; Digby v. 
 
 App. 625. Atkinson, 4 Camp. 275; Hutton v. 
 
 "'Benfey v. Congdon, 40 Mich. Warren, 1 M. & W. 466. 
 283.
 
 343 TENANCY FROM YEAR TO YEAR. [§§ 204, 205 
 
 further notice" and the landlord reserved the right to "enter and re- 
 possess the premises at the end of the period, or at any time there- 
 after." It was held that no year to year tenancy could be inferred 
 from the landlord's failure to eject the tenant at the end of the 
 term.^^i 
 
 § 204. The landlord's act of receiving rent implies such assent on 
 his part to the holding over as will create a tenancy for another year.^^- 
 It is not permitted that the landlord should shift his position and 
 adopt an inconsistent attitude. So that after he has accepted rent 
 accruing during the period of the holding over, he cannot repudiate 
 the tenancy and exact a penalty from the tenant for his failure to 
 surrender possession according to the covenants in the lease.^^^ How- 
 ever, acceptance of rent due under the lease does not to any extent 
 preclude the landlord. And even though the payment is made and 
 accepted while the tenant is holding over, no presumption of a year 
 to year tenancy arises from it."* In most instances a demand for the 
 rent accruing after the lease would be a clear recognition of the ten- 
 ancy and would establish the landlord's acquiescence. It would be the 
 legal expression of the landlord's election.^®^ 
 
 § 205. It is not necessary for the landlord to indicate his assent 
 to a holding over by overt acts. Time only is necessary, in the ab- 
 sence of other evidence, to establish the consent or acquiescence of the 
 landlord in a case where the landlord, himself, is relying on the re- 
 newal agreement. ^^^ As a matter of fact very slight acts on the part 
 of the landlord, or a short lapse of time, are sufficient to conclude his 
 election and make the person holding over his tenant."^ But wrong- 
 ful holding over will not by its long duration create a tenancy. 
 Where the holding over by a lessee is admittedly wrongful and without 
 the landlord's consent, no year to year tenancy is created, no matter 
 
 "^McCanna v. Johnston, 19 Pa. &c. Co., 94 111. App. 492; Hately v. 
 
 St. 434. Myers, 96 II!. App. 217. 
 
 '='=Roberson v. Simons, 109 Ga. "' Vanderford v. Foreman, 129 N. 
 
 360, 34 S. E. 604; Critchfield v. Car. 217, 39 S. E. 839. 
 
 Remaley, 21 Neb. 178, 31 N. W. 687; ">= Scott v. Beecher, 91 Mich. 590, 
 
 Banbury v. Sherin, 4 S. Dak. 88, 52 N. W. 20. 
 
 55 N. W. 723; Gardner v. Board of "« Scott v. Beecher, 91 Mich. 590, 
 
 Com'rs, 21 Minn. 33; Amsden v. At- 52 N. W. 20. 
 
 wood, 67 Vt. 289, 31 Atl. 448; Golds- '"Kelso v. Crilly, 85 111. App. 568; 
 
 brough v. Gable, 140 111. 269, 29 N. Clinton &c. Co. v. Gardner, 99 111. 
 
 E. 722. 151, 159. 
 
 "'Board of Directors v. Chicago
 
 § 306] KINDS OF TEXAXCY. 244 
 
 how long the holding over continues.^^* The mere fact that the land- 
 lord takes no steps, after the lease expires by its own terms, to regain 
 the possession cannot be regarded as an act from which an inference of 
 a new tenancy can be drawn. ^^^ A tenant holding over does not have 
 the same right of election to be regarded as a tenant for the ensuing 
 year or as a trespasser which is accorded to his landlord. The very 
 circumstance that the landlord possesses such a power of election pre- 
 cludes the exercise of a similar right by the tenant.^°° 
 
 § 206. Dissent on part of tenant. — It does not prevent an implica- 
 tion of a tenancy from year to year, by reason of a holding over, to 
 show that the tenant did not intend to incur such an obligation, be- 
 cause the tenant's intentions in the matter are immaterial.-"^ If a 
 tenant from year to year holds over after his tenancy has been ter- 
 minated by notice to quit, it is optional with the landlord either to 
 follow up the notice by ejectment or to waive the notice and hold the 
 tenant for another year, whether the tenant actually agrees to it or 
 not. "This statement of law is supported by many American cases.^°^ 
 Some of them are very strong. Thus, in Conway v. StarJciveather,^'^^ 
 the tenant held over fourteen days, having refused to renew the ten- 
 ancy before his term expired; in Schuyler v. 8mith,^°^ tenants of a 
 wharf held over twenty-one days while another wharf was preparing 
 for them, they having given notice before their lease ended that they 
 should not continue the tenancy ; in Wolff e v. Wolff e and Bro.,^^^ the 
 
 "'Chicago &c. R. Co. v. Perkins, Telle v. Orth, 75 Ind. 298. Minne- 
 
 12 Ind. App. 131. sota: Smith v. Bell, 44 Minn. 524, 
 
 "° Cairo &c. R. Co. v. Wiggins 47 N. W. 263. Nebraska: Bradley 
 
 Ferry Co., 82 111. 230. v. Slater, 50 Neb. 682, 70 N. W. 258. 
 
 ^""Keegan v. Kinnare, 123 111. 280, Michigan: Mason v. Wierengo's 
 14 N. E. 14; Clinton &c. Co. v. Card- Estate, 113 Mich. 151, 71 N. W. 489. 
 ner, 99 111. 151; Condon v. Brock- New York: Conway v. Stark- 
 way, 157 111. 90, 14 N. E. 634, affirm- weather, 1 Denio 113; Schuyler v. 
 ing 50 111. App. 625. Smith, 51 N. Y. 309, 10 Am. R. 609; 
 
 "<« Chicago, City of v. Peck, 196 Adams v. City of Cohoes, 127 N. Y. 
 
 111. 260, 63 N. E. 711, affirming 98 175, 28 N. E. 25; Haynes v. Aldrich, 
 
 111. App. 434; Quinlan v. Bonte, 25 133 N. Y. 287, 31 N. E. 94. Pennsyl- 
 
 111. App. 240; Goldsbrough v. Gable, vania: Hemphill v. Flynn, 2 Pa. 
 
 49 111. App. 554; Berkowsky v. Ca- St. 144; Graham v. Dempsey, 169 
 
 till, 72 111. App. 101. Pa. St. 460, 32 Atl. 408. Tennessee: 
 
 -'>= Alabama: Schuisler v. Ames, Noel v. McCrory, 7 Coldw. 623. 
 
 16 Ala. 73; Wolffe v. "Wolff, 69 Ala. =<« 1 Denio 113. 
 
 549. Connecticut: Bacon v. Brown, ='>* 51 N. Y. 309. 
 
 9 Conn. 334. Illinois: Clinton &c. ^=69 Ala. 549. 
 Co. V. Gardner, 99 111. 151. Indiana: 
 
 I
 
 245 TENANCY FROM YEAR TO YEAR. [§ 207 
 
 tenant held over ten da3'S after his term expired, under notice pre- 
 viously given that he could not quit at once, but would pay a reasona- 
 ble rent for the unavoidable occupancy; and in Clinton Wire Cloth Co. 
 V. Gardner et al./°^ the tenants held over eleven days under notice that 
 they should not remain without a reduction of rent, their holding 
 over being in part the result of expectation that rent would be re- 
 duced. It is true that in the cases cited the tenant was in for a' 
 definite term ; but so long as the letting is terminated, we do not see 
 that it matters whether it be terminated by efHuxion of time or notice 
 to quit. In Schuyler v. Smith, the tenant contended that the relation 
 of landlord and tenant could only be created by agreement and there 
 could be no agreement without mutuality. The court replied that the 
 tenant held over at his peril, the landlord having the option to treat 
 him as trespasser or tenant for a year longer on the terms of the 
 prior lease so far as applicable, the tenancy arising by operation of 
 law regardless of the tenant's assent. . . . The doctrine is 
 urgently defended on the ground that the tenant being in possession 
 has the landlord at disadvantage, and can greatly embarrass or defeat 
 his arrangements for a new letting by holding over, and therefore 
 should not do so without risk of being held himself."^"^ Even 
 where there is an express contract that a tenancy shall continue from 
 year to year till the tenant gives three months' notice to quit, his con- 
 tinuance in possession after giving a notice to quit would continue the 
 tenancy. "That actions speak louder than words is sound law as well 
 as proverbial wisdom."^^^ A mere threat of a month to month tenant 
 to quit the premises unless the landlord repaired a leaky roof would 
 not put an end to the tenant's liability for rent as long as he continued 
 to occupy. If the tenant intended to remove, he should have done so 
 at the end of the month. Having entered upon another month's 
 occupancy he must be deemed to have made his election to become a 
 tenant for another month, and the landlord had a right to treat him as 
 such.2o» 
 
 § 207. Rule in England. — The English doctrine is more lenient to 
 the tenant and holds that his liability for a j-ear's rent can only rest 
 on his implied consent to enter into such an agreement. Continuance 
 in possession would raise an inference that he intended to take the 
 
 -""GG 111. 151. ="' Graham v. Dempsey, 169 Pa. 
 
 =" Providence &c. Bank v. Hall, St. 460, 32 Atl. 408. 
 16 R. I. 154, 13 Atl. 122, in the =°« Flint v. Sweeney, 49 Minn. 509, 
 words of Durpee, C. J. 52 N. W. 136; Roach v. Peterson, 
 
 47 Minn. 291, 50 N. W. 80.
 
 208] 
 
 KINDS OF TENANCY. 
 
 246 
 
 premises for another year, and he cannot set up a secret intention 
 which would belie his apparent intent. Nevertheless, on first holding 
 over the tenant would, according to the English rule, become simply 
 a tenant at sufferance and could not be held for another year or 
 term, without his assent, express or implied, the question of assent 
 being a question of fact for the jury.^^° The English rule is recog- 
 nized in Massachusetts, in Missouri, and, it seems, in California.-^^ 
 In Edwards v. Hale-^^ the Massachusetts court, per Chapman, J., say : 
 *'The doctrine that the lessor may at his election consider one who 
 holds over as a tenant at will which is stated in Conway v. StarJc- 
 weather^^^ is contrary to the decision in Delano v. Montague^^^^ and we 
 do not find it well sustained by any authority. In order that a new 
 estate at will shall exist, there must be a new contract either express 
 or inferable from the dealings of the parties." Mere non-delivery 
 of the keys for five days after the end of a term would not raise an 
 implied promise to pay rent for another month. There must be 
 something else to show the existence of a new contract. If the mere 
 non-delivery of the keys raised any implied contract, it would be to 
 pay for use and occupation for the time the premises were actually 
 held. The statutory provisions as to agreements being tenancies from 
 month to month is a provision of law and not to be confused with 
 such facts as raise an implied contract.^^* 
 
 § 208. Surrender rendered impossible by act of God. — The fact 
 that a tenant for a term of years becomes seriously ill shortly be- 
 
 '""Ibbs V. Richardson, 9 A. & E. 
 849; Jones v. Shears, 4 A. & E. 
 832; Waring v. King, 8 M. & W. 
 571. 
 
 ^" Delano v. Montague, 4 Cush. 
 (Mass.) 42; Edwards v. Hale, 9 Al- 
 len (Mass.) 462; Emmons v. Scud- 
 der, 115 Mass. 367; Neumeister v. 
 Palmer, 8 Mo. App. 491; Skaggs v. 
 Elkus, 45 Cal. 154. In the case last 
 cited the Supreme Court of Cali- 
 fornia use the following language: 
 "The implication of a new term 
 created by the payment of rent 
 after the expiration of the first term 
 is an implication of fact only. It 
 it evidence from which an agree- 
 ipent for a new or further term 
 may be inferred or presumed. . If it 
 be shown that, in point of fact, a 
 
 new agreement was made, such new 
 agreement would destroy the im- 
 plication of a different term, which 
 might otherwise be presumed from 
 the subsequent payment of rent. 
 So if as here the evidence offered 
 on the part of the defendant went 
 to show that he had expressly re- 
 fused to accept a term for one 
 year, that fact would tend to over- 
 throw and destroy the mere pre- 
 sumption drawn from the subse- 
 quent payment of rent that he was 
 to continue to hold thereafter for 
 the space of one year." 
 
 °^"9 Allen (Mass.) 462. 
 
 ^^1 Denio (N. Y.) 113. 
 
 »'a4 Cush. (Mass.) 2. 
 
 "* Neumeister v. Palmer, 8 Mo. 
 App. 491. 
 
 i 
 I
 
 247 TENANCY FROM YEAR TO YEAR. [§ 208 
 
 fore the expiration of his term and after removal operations have 
 actually begun, does not deprive the landlord of his right to treat 
 the tenant's failure to complete the removal before the lease expires 
 as a renewal of the lease for another year.^^^ This is the logical out- 
 come of the doctrine that the right of a lessor to treat a lessee holding 
 over as a tenant is not affected by the fact that the lessee had no in- 
 tention of renewing his lease. And the court remarked, in the course 
 of the opinion : "We think that there is uniformity in the decisions 
 against the contention that the intention to vacate as soon as possible 
 can affect the right of the landlord to elect to treat the holding over 
 as a renewal of the lease for a year. It requires some express or 
 implied consent upon his part to a holding over upon other condi- 
 tions." In another place it is said : "If it is contended that the act 
 of God excuses one from the performance of his express contract to 
 yield possession at the expiration of the lease, we are unable to 
 acquiesce in the contention. It is only in those contracts which the 
 act of God renders impossible of performance — as where the subject- 
 matter of the contract dies, or is destroyed, or where personal labor 
 is contracted for and the person dies or becomes incapacitated through 
 act of God — that a party is excused from performance." 
 
 On the other hand, the New York Court of Appeals held, reversing 
 the decision below, that inevitable accident or the act of God excuses 
 a tenant's omission to surrender the premises, at least so far as it 
 creates a liability for a year's rent which is implied by law.^^^ The 
 court relies for authority on a case^^^ decided in England where an 
 admittedly contrary doctrine as to the inference from holding over 
 is in vogue. The circumstance preventing a removal at the proper 
 time was the illness of a member of the tenant's family. And the 
 court argue that acts under such stress of circumstances could not 
 be said to proceed from the own volition of the tenant. The tenant 
 was not a trespasser during the fifteen days he held over because it 
 was not his voluntary act. And therefore the rule that the landlord 
 might treat him as a tenant or a trespasser could not be applied. The 
 court agrees that the tenant would be liable for breach of his cove- 
 nant in the lease to surrender the demised premises at the expiration 
 of the term. It is said that a duty or obligation imposed by law and 
 one created by contract or covenant stand upon different grounds 
 
 ^^ Mason v. Wierengo's Estate, 53 N. E. 700, reversing 9 App. Div. 
 
 113 Mich. 151, 71 N. W. 489, per 593. 
 
 Hoolier, J. =i^ Jones v. Shears, 4 A. & E. 832. 
 
 ""Herter v. Mullen, 159 N. Y. 28,
 
 § 209] KINDS OF TENANCY. 248 
 
 when the party seeks to be excused by the act of God or unavoidable 
 accident, or stress of circumstances. 
 
 Three of the seven judges taking part in the decision dissented 
 from the views of the majority and stood for affirmance of the judg- 
 ment below. The three dissenting justices considered that the ques- 
 tion was settled on the authority of two recent cases^^^ decided on some- 
 what similar facts. The decision will doubtless stand in New York, 
 though it may well be questioned whether it would be more widely 
 followed than the opposite conclusion reached from identical circum- 
 stances by the Supreme Court of Michigan. 
 
 § 209. Necessary len^h of tenant's holding over. — Since the ob- 
 ject of the rule charging a tenant holding over with the obligation to 
 pay rent for an entire year is to compel a prompt surrender of the 
 leased premises at the end of the term, it follows that a short period 
 of holding over will incur the obligation. Thus, holding over three 
 days has been held to make the tenant liable for a full year's rent,^^^ 
 while a great deal of the litigation on the point is over cases where 
 the tenant held over from ten days to two weeks. Such a length of 
 holding is enough to charge the tenant for an entire year.^^° How- 
 ever, a slight default on the part of the tenant in failing promptly 
 to vacate the premises is waived if the landlord subsequently accepts 
 a surrender of possession. Where a tenant brought in the keys ten days 
 
 "^ Adams v. City of Cohoes, 127 would be forthcoming, and their 
 
 N. Y. 175, 28 N. E. 25; Haynes v. sufficiency be subject to the doubt- 
 
 Aldrich, 133 N. Y. 287, 31 N. E. 94. ful conclusions of a jury, and no 
 
 In the latter case Finch, J., in lessor would ever know when he 
 
 speaking of the rule that holding could safely promise possession to 
 
 over creates a new tenancy for a a new tenant. ... I reserve 
 
 year, said: "The appellant does not the question, also, whether there 
 
 deny the rule, seeks to qualify it might not be an unavoidable delay 
 
 so as to mean that it is only where in no manner the fault of the ten- 
 
 the tenant holds over voluntarily ant, directly or indirectly, which, 
 
 and for his own convenience that would serve as a valid excuse." 
 the landlord's right arises, and that ^'^ Tolle v. Orth, 75 Ind. 298; 
 
 it does not arise when the tenant Haynes v. Aldrich, 133 N. Y. 287, 
 
 holds over involuntarily and not for 31 N. E. 94. 
 
 his own convenience, but because ^-"Wolffe v. Wolff, 69 Ala. 549; 
 he cannot help it. I am averse to Clinton &c. Co. v. Gardner, 99 111. 
 any such qualification. It would 151; Conway v. Starkweather, 1 
 introduce an uncertainty into a rule Denio (N. Y.) 113; Schuyler v. 
 whose chief value lies in its cer- Smith, 51 N. Y. 309; Herter v. Mul- 
 tainty. The consequent confusion len, 159 N. Y. 28, 53 N. E. 700, re- 
 would be very great. Excuses versing 9 App. Div. 593. 
 
 II
 
 249 , TENANCY FROM YEAR TO YEAR. [§§ 209a, 210 
 
 after the term expired and the landlord said "all right," this ended 
 the tenancy. ^^^ 
 
 § 209a. If the landlord is in any way responsible for the holding 
 over he cannot insist that the tenant be held for another year. This 
 was attempted where the only occupancy of the leased premises by the 
 tenant after the expiration of the term of the lease was that his house- 
 hold goods remained in the house packed up ready for removal for 
 three days after the end of the term. The landlord was away and his 
 agent refused to receive either the key or the rent, but directed the 
 tenant to wait. In concluding its decision in favor of the tenant 
 the court said : "The evidence establishes the fact that before the re- 
 turn of the plaintifE the goods of the defendant had all been removed 
 from the premises, and that defendant promptly surrendered the key 
 of the premises to the plaintiff on his return and that the plaintiff 
 accepted the same."^^- 
 
 In Kentucky a statute'-^ regulates cases where a tenant for a year or 
 more holds over after the termination of a lease which is to expire on 
 a certain day. The effect of this statute is that the first ninety days 
 of holding over gives the tenant no rights and imposes no liabilities 
 on him; during that period he may be evicted without notice. After 
 the expiration of ninety days, the tenant becomes bound for another 
 year and entitled to a term for another year. A tenant holding over 
 less than ninety days does not become liable for an entire year's 
 rent.22* 
 
 § 210. Rebutting presumption of year to year tenancy. — As has 
 
 already been seen, the implication of a year to year tenancy from con- 
 tinued occupation after the expiration of a fixed term does not de- 
 pend on the actual assent of the tenant to enter into such an agree- 
 ment. At least such is the prevailing American doctrine. Yet the 
 rule is always qualified by the proviso that there must be no incon- 
 sistent agreement between the parties. This is stated in the form that 
 
 -^ Walls V. Preston, 28 Cal. 224. would have vacated but for the in- 
 
 ■~ Adler v. Mendelson, 74 Wis. 464, terposition of plaintiff's agent. If 
 
 43 N. W. 505. To same effect see the landlord should be permitted to 
 
 Campau v. Michell, 103 Mich. 617, prevail under these circumstances, 
 
 61 N. W. 890. In the latter case it would be permitting him to have 
 
 the court states its conclusions as advantage of the wrongful acts of 
 
 follows: "We think, in this case, his own agents, 
 
 the facts found by the court below -'Kentucky St., § 2295. 
 
 show very clearly the intent of the -'Mendel v. Hall, 13 Bush (Ky.) 
 
 subtenant to vacate, and that he 232.
 
 § 210] KINDS OF TENANCY. 250 
 
 a contrary agreement between the parties relmts the presumption of 
 a year to year tenancy arising from the continued occupation. But 
 in reality the presumption is one of law which cannot be rebutted. 
 The Supreme Court of Michigan has attempted in an excellent state- 
 ment of the law on this point to reconcile this inconsistency. In 
 Scott V. Beecher-^ this statement occurs: "The law presumes an 
 intention by the tenant to continue the yearly tenancy from the hold- 
 ing over. An agreement that such holding over should not be so re- 
 garded might be shown to rebut the presumption, or there might be 
 such clear indications of an intention to vacate that a holding over for 
 a day would not support the presumption. But in the absence of 
 such agreement or such indications, the holding over is the legal ex- 
 pression of the tenant's intention, and all that is necessary to com- 
 plete the contract is the consent or acquiescence of the landlord." 
 The more scientific and accurate way of stating the proposition is that 
 there is a positive rule of law which entitles a landlord to charge a 
 tenant holding over as a tenant for the ensuing year. But when the 
 landlord has by his conduct led the tenant to believe that he will not 
 be charged as tenant for the entire year, it is axiomatic that the 
 landlord cannot change his position and fix an unexpected burden of 
 liability upon the tenant. So it follows that any new agreement be- 
 tween a landlord and tenant relative to the continued occupancy of 
 leased premises after the termination of the term precludes the land- 
 lord from charging the tenant with liability for a full year's rent by 
 reason of such continued occupancy.^-'' 
 
 This result is not contingent on the fact that the new agreement is 
 valid and capable of enforcement; it rests on an estoppel against the 
 landlord for inducing the tenant to act on his representations. And 
 it matters not that the new contract was invalid under the statute 
 of frauds because not in writing.-" The continued payment and re- 
 ceipt of rent after the expiration of the term is not necessarily incon- 
 sistent with the existence of a new agreement between the parties. 
 
 225 91 Mich. 590. Nebraska: Bradley v. Slater, 50 
 "''Alabama: Singer Mfg. Co. v. Neb. 682, 70 N. W. 258. New York: 
 Sayre, 75 Ala. 270; Crommelin v. Smith v. Allt, 7 Daly 492. North 
 Thiess, 31 Ala. 412. Illinois: Secor Carolina: Harty v. Harris, 120 N. 
 V. Pestana, 37 111. 525; Johnson v. Car. 408, 27 S. E. 90. Texas: Ship- 
 Foreman, 40 111. App. 456. Indiana: man v. Mitchell, 64 Tex. 174. 
 Hoffman v. McCollum, 93 Ind. 326. -^Singer Mfg. Co. v. Sayre, 75 
 Iowa: Dubuque, City of , v. Miller, 11 Ala. 270; Crommelin v. Thiess, 31 
 Iowa 582. Maryland: Biggs v. Ala. 412. Contra, Parker v. Hollis, 
 Stueler, 93 Md. 100, 48 Atl. 727. 50 Ala. 411.
 
 251 TENANCY FROM YEAR TO YEAR. [§§ 211, 212 
 
 So such payment is evidence of a year to year tenancy rather than 
 conclusive proof of it.-^^ 
 
 § 211. A covenant to pay rent at the same rate for such further 
 term as the lessees or persons claiming under them shall hold the 
 premises or any part thereof does not, in the face of an express cove- 
 nant to deliver possession, give the lessees any right to continue in 
 possession after the end of the term. Still though it does not enlarge 
 or extend the term, it is nevertheless a valid contract and the law will 
 give it effect. The effect of the covenant is to fix the amount of rent 
 which the tenant shall pay for his holding over. A clause respecting 
 the payment of a pro rata rent in case the lessee holds over is very 
 convenient. It often happens that a tenant who intends to quit at the 
 end of his term is not able to complete his arrangements promptly, 
 and desires to remain for a short time after the term has expired. It 
 is often convenient to the landlord to permit him to do so, provided he 
 acquires no rights thereby, and can be turned out without notice. 
 The covenant for the payment of rent during such holding over pre- 
 vents all disputes in respect to that matter, and the landlord may for- 
 bear to exercise his rights without losing them. If a holding over is 
 for a short time, a full quarter's rent would make an unreasonable 
 compensation. Where the tenants holding over refused to become ten- 
 ants at will and claimed to be tenants at sufferance, the mere act of 
 remaining for two months and a half after their term expired did not 
 give the landlord a right to hold them as tenants at will. Such period 
 of holding over did not change the character of their occupation.^-'* 
 
 § 212. Where there is an express renewal of a lease for a year at 
 the end of the preceding term, the tenant holds for the definite period 
 of a year and not as a tenant from year to year. If, at the expiration 
 of the original lease, the tenant remains in possession under a renewal 
 of the lease, he does not thereby become a tenant from year to year, 
 but for the definite period set forth by tbe terms of the lease and stip- 
 ulation. In such case the tenancy would be one for years and not a 
 tenancy from year to year. As long as the tenant holds over under 
 successive renewals he is a tenant for years. ^^° A tenancy from year 
 to year will not be created against the contrary intention of both par- 
 ties, landlord as well as tenant. So where evidence is introduced from 
 
 ==^ Wilcox V. Montour &c. Co., 147 ""Biggs v. Stueler, 93 Md. 100, 48 
 
 Pa. St. 540, 23 Atl. 840. Atl. 727; Secor v. Pestana, 37 III. 
 
 ="' Edwards v. Hale, 9 Allen 525. 
 (Mass.) 462.
 
 213] 
 
 KINDS OF TENANCY. 
 
 252 
 
 which a contract or agreement for a definite time at the same rent 
 may be inferred, the question must be determined as one of fact, 
 whether the holding over is under such agreement. If a tenant for a 
 year says to his landlord at the end of the year that he will stay an- 
 other year, and the landlord assents to it, and rent is paid at the 
 former rate, it amounts to a leasing for a year, and does not create a 
 tenancy from year to year.^^^ It is not necessary that the new agree- 
 ment shall be for a definite term. In case the tenant agreed to pay rent 
 only so long as he saw fit to occupy the premises, and the landlord 
 acquiesced in this and received rent as such under this agreement, the 
 tenant was at liberty to terminate the lease at any time by surrender- 
 ing the possession. ^^^ 
 
 Where a tenant holds over pending a treaty for another lease, he 
 cannot be held accountable as a tenant from year to year, but is a 
 tenant at will merely. -^^ It was ruled by Lord Kenyon at the be- 
 ginning of the last century that "if a tenant whose lease is expired, is 
 permitted to continue in possession, pending a treaty for a further 
 lease, he is not a tenant from year to year, but so strictly a tenant at 
 will, that he may be turned out of possession without notice."^^* So, 
 a lessor's agreement to execute a new lease on payment of a cash 
 rental, prevents him from charging the tenant holding over with a 
 full year's rent.^^^ 
 
 § 213. Changes in the amount of rent. — It is not essential that the 
 same amount of rent should be paid every year under a yearly tenancy 
 extending over a considerable period of time. As the parties could 
 terminate it altogether, so they can change various terms of the con- 
 tract without altering the nature or breaking the continuity of the 
 holding. It is equally true that the holding over after a term for 
 years which creates a tenancy from year to year, need not be at the 
 same rental as that reserved in the lease. A change in the rental is 
 not in itself a new agreement creating an estate for years. So, if the 
 only change made is in the amount of rent to be paid and the other 
 terms remain the same as in the original lease, the tenure is one from 
 
 « 
 
 -'^ Johnson v. Foreman, 40 111. 
 App. 456. 
 
 "^Montgomery v. Willis, 45 Neb. 
 434, 63 N. W. 794. 
 
 ^== Grant v. White, 42 Mo. 285; 
 Fall v. Moore, 45 Minn. 515, 48 N. 
 W. 404. The case of Wilgus v. 
 Lewis, 8 Mo. App. 336, qualifies this 
 
 rule at least to the extent that a 
 periodical tenancy will arise where 
 no new lease is agreed upon and 
 the tenant continues to remain in 
 possession and pay rent. 
 
 "^ Doe v. Stennett, 2 Esp. 717. 
 
 =^^ Dubuque, City of, v. Miller, 11 
 Iowa 583.
 
 253 TENANCY FROM MONTH TO MONTH, [§§ 214, 215 
 
 year to j^ear and not for a definite period of one year.^^*^ A new stipu- 
 lation as to tlie amount of rent to be paid can have no efEect upooi 
 the terms of the holding in regard to right of tenant to notice to 
 quit.'^^ A change in the mode of paying rent during the period of 
 the holding over, as where a partial crop rent was to be paid wholly 
 in cash, does not prevent a year to year tenancy from arising. -^^ It 
 is not a new bargain for a definite time, but merely a variation of the 
 performance of the previous agreement. 
 
 No new tenancy is created by a mere agreement for an increase of 
 rent in the middle of the year of the tenancy. The term stands un- 
 changed by a promise to pay, for a balance of a term, more rent than 
 a tenant is required to pay by the contract under which he entered into 
 possession. Such change does not terminate the tenancy at the time 
 at which the increase was to begin, and a new year does not begin 
 to run then.^^^ 
 
 § 214. Where a lease provided for a penalty of double rent in case 
 tenants held over, the rights of the landlord were either to regain 
 possession in the ordinary way or to recover double rent for such 
 time as they held over ; and he could not charge the lessees as tenants 
 from month to month."'**' But a periodic tenancy would be created by 
 the landlord's acceptance of rent at the former rate after the lease had 
 expired and while the tenant was holding over.^*^ 
 
 IV. Tenajicy from Month to Month. 
 
 § 215. The reservation and payment of rent at stated periods of 
 
 the year or month is, in the absence of express agreement, the prin- 
 cipal criterion to determine the duration of the successive terms of a 
 periodic tenancy.^*^ If the term is for a shorter period than a year, 
 
 ='°Zippar V. Reppy, 15 Colo. 260, =^0 Green v. Kroeger, 67 Mo. App. 
 
 25 Pac. 164; Rand v. Purcell, 58 621; Deaver v. Randall, 5 Mo. App. 
 
 111. App. 228; Second Nat. Bank v. 297. 
 
 O. E. Merrill Co., 69 Wis. 501, 34 =" Wilgus v. Lewis, 8 Mo. App. 
 
 N. W. 514; Doe v. Geekie, 5 Q. B. 336. 
 
 841, 48 E. C. L. 841, 1 C. & K. 307. =" Blumenberg v. Myres, 32 Cal. 
 
 =" Potter V. Bower, 2 Wkly. N. 93; Skaggs v. Elkus, 45 Cal. 154, 
 
 Cas. (Pa.) 408. 158; Coffin v. Lunt, 2 Pick. (Mass.) 
 
 =^« Allen V. Bartlett, 20 W. Va. 46. 70, 76; Rich v. Bolton, 46 Vt. 84, 
 
 =»" Taylor v. Winters, 6 Phila. 14 Am. R. 615; Hurd v. Whitsett, 
 
 (Pa.) 126, 5 Am. L. Rep. (N. S.) 4 Colo. 77; Prickett v. Ritter, 16 
 
 438. 111. 96.
 
 § 215] KINDS OF TENANCY. 254: 
 
 according to the current of authorities, the holding over is implied 
 to be for a like term and the notice to quit is determined thereby and 
 is sufficient if it equal the length of the term or the interval between 
 the times of payment of rent.-*^ "At common law, when a tenant for 
 a fixed term, as for a year, held over after the expiration of his term, 
 paying rent, he was strictly a tenant at will, but as tenancies at will 
 from their uncertain nature were not favored, there gradually grew 
 up the requirement that to terminate a tenancy, notice must be given 
 of an intention to terminate at the end of the current period. So that 
 where the original term was for one year, the tenancy upon the hold- 
 ing over and receipt of rent became in effect one not at will strictly, 
 nor for a fixed term, but from year to year. So where the stated 
 term was for a less period than a year, as for one month, the tenancy 
 became upon holding over and payment of rent a tenancy from month 
 to month."2** 
 
 Where no time is mentioned, and no annual rent reserved in a 
 letting, the character of the letting as to time will be controlled by 
 the intervals between the rent payment ; monthly or weekly payments 
 implying monthly or weekly tenancies. This determines the length 
 necessary for the time of giving notice to quit.^*^ The doctrine of 
 year to year tenancy originated in respect to the occupation of farm- 
 ing land and the unit for the periodic term was naturally a year. 
 So, to-day if a lessee for a term of years holds over after the expira- 
 tion of his term, the implication as to a new holding is for a single 
 year only and not for a period equal to the term of the previous 
 lease. -*^ The foundation upon which the selection of a year as the 
 unit was based seems to be that an annual rent was reserved in farm- 
 ing leases. So the real imit is not any particular period of time, but 
 the rent period, whatever that may be in any given case. In Indiana 
 the doctrine is that when a tenant for a fixed period, less than one 
 year, remains in possession of the property beyond that period, with 
 the consent, express or implied, of the landlord, it creates a tenancy 
 for another term equal in time to the one under which he had pre- 
 viously held. Thus, where a lessee for a term of eight months at a 
 monthly rental held over and paid a month's rent, the term was re- 
 newed for another eight months.^" Such a conclusion might, per- 
 
 ="Hurd v. Whitsett, 4 Colo. 77; ='" Kleespies v. McKenzie, 12 Ind. 
 
 Noel V. McCrory, 7 Coldw. (Tenn.) App. 404; Providence &c. Bank v. 
 
 627; 1 Greenl. Cruise, 269, n. 2. Hall, 16 R. I. 154, 13 Atl. 122. 
 
 "" Shirk V. Hoffman, 57 Minn. 230, -" Rothschild v. Williamson, 
 
 58 N. W. 990, per Gilfillan, C. J. Ind. 387; Bollenbacker v. Fritts, 
 
 ^"Steffens v. Earl, 40 N. J. Law Ind. 50. 
 128; Bright v. McOuat, 40 Ind. 521.
 
 255 TENANCY FROM MONTH TO MONTH. [§ 216 
 
 haps, follow from the Indiana statute, but at common law it does 
 not seem to result either on grounds of policy or of legal principles. 
 A monthly rent was paid and the rent periods should have been the 
 test as to the periodic tenancy arising from a holding over so that a 
 tenancy from month to month would result. In accordance with this 
 conclusion it was held in another jurisdiction that a lessee holding 
 over after a written lease for six months at a monthly rent became a 
 tenant from month to month. Remaining in possession for two 
 months after the expiration of the lease, with payment of rent each 
 month at the rate provided for in the lease indicates nothing more 
 than a tenancy from month to month.^*^ 
 
 Where a wharf and ware-room in a commercial town were the sub- 
 ject of a demise and the term of the letting was indefinite, it was 
 held that the jury need not necessarily infer that the letting was for 
 a year, as in the case of an agricultural lease, but the jury could 
 find that it was understood by the parties that the letting should be 
 for a shorter time.^*® 
 
 § 216. A tenancy from month to month may be created by express 
 agreement. Such would he the case where the original letting was 
 for a short period and the parties agreed upon an extension from 
 month to month after the end of the term. Thus a written lease for 
 six months at a monthly rent contained a clause that it should be 
 extended as a month to month tenancy. Therefore, the lessee held 
 under an express agreement that he was to be a tenant from month to 
 month. Having accepted the contract, he would not subsequently be 
 heard to complain of its terms. ^^° As has already been stated in this 
 chapter, a tenancy for the period of one month is not a tenancy from 
 month to month. They are different estates, with different incidents 
 and are designated in law by different technical terms. There is a 
 substantial, not a mere verbal difference. A tenancy for one month 
 is technically a term for years, and not a tenancy from year to year 
 or from month to month. But if the tenant for one month holds over 
 after the expiration of the month, he would then become a tenant 
 from month to month. ^^^ Wliere a person rents premises at a certain 
 rate per month and holds over for several months, paying the same 
 rent without any new agreement, he becomes a tenant from month to 
 
 -'^ Backus v. Sternberg, 59 Minn. -=" Pappe v. Front, 3 Okla. 260, 41 
 403, 61 N. W. 335. Pac. 397. 
 
 ^^ Cooke V. Norris, 7 Ired. L. (N. -" Stoppelkamp v. Mangeot, 42 
 Car.) 213. Cal. 316; Hislop v. Moldenhauer, 2a 
 
 Ore. 119, 31 Pac. 252.
 
 §• 216] KINDS OF TENANCY. 256 
 
 month.^^^ In case a tenant is put into possession at an agreed monthly 
 rental without any provision as to the length of time he shall occupy 
 it may either be considered as an express arrangement for a month to 
 month tenancy or as a renting for a single month, which becomes a 
 tenancy from month to month by holding over and continued pay- 
 ment of rent. The doctrine has been stated as follows : "When, how- 
 ever, we are dealing with the question of an implied renewal of a 
 tenancy, all the terms of the former lease must be considered. The 
 purpose is not to make a new lease essentially different, but to con- 
 tinue the former so far as its terms may be applicable. In its very 
 nature the implied renewal of a lease assumes a continuation of its 
 characteristic features. Hence, if a landlord elect to treat one hold- 
 ing over as a tenant, he thereby affirms the form of tenancy under 
 which the tenant previously held. If that was a tenancy by the 
 month, it will presumptively so continue."-^^ In either case the gen- 
 eral rule is that a tenant holding by a verbal letting for an indefinite 
 term at a monthly rental becomes a tenant from month to month.-^* 
 No time being specified the letting is in its origin a letting for a single 
 month and is renewed by the tacit assent of the parties at the be- 
 ginning of every succeeding month.^^^ The mere fact that a tenant 
 under such an arrangement continues to occupy for two years does 
 not have the effect of making him a tenant from year to year. The 
 rule that the law favors tenancies from year to year applies only as 
 between such tenancies and tenancies at will.^^'' 
 
 In Oregon, however, leasing a building at a monthly rent without 
 specifying the term, does not create a tenancy by the month which 
 may be terminated by ten days' notice, but a tenancy at will or from 
 year to year, according to the circumstances necessitating thirty days' 
 notice for its termination. The theory of this case is that a definite 
 leasing for the period of one month must be established before a hold- 
 ing over would create a tenancy from month to month. The cir- 
 cumstances of the case negative any such assumption. Nowhere does 
 
 =»= Branton v. O'Briant, 93 N. Car. York: Wilson v. Taylor, 8 Daly 
 
 99_ 253. Compare Spies v. Voss, 16 
 
 '^'Hollis v. Burns, 100 Pa. St. 206, Daly 171. North Carolina: Branton 
 
 45 Am. R. 379, per Mercur, J. v. O'Briant, 93 N. Car. 99. Texas: 
 
 =" Colorado: Edmundson v. Pre- H. R. E. &c. Assn. v. Cochran, 60 
 
 ville, 12 Colo. App. 73, 54 Pac. 394. Tex. 620. Utah: Utah &c. Co. v. 
 
 Illinois: Sebastian v. Hill, 51 111. Garbutt, 6 Utah 342, 23 Pac. 758. 
 
 App. 272. Michigan: Haines v. ^^^ Edmundson v. Preville, 12 Colo. 
 
 Beach, 90 Mich. 563, 51 N. W. 644. App. 73, 54 Pac. 394. 
 
 Minnesota: Rogers v. Brown, 57 ==• Jones v. Willis, 8 Jones L. (N. 
 
 Minn. 223, 58 N. W. 981. New Car.) 430.
 
 257 TENANCY FEOM MONTH TO MONTH. [§ 217 
 
 the evidence indicate that any time was specified or agreed upon, and 
 if the leasing was not for a specified term of one month, there was 
 no error in refusing to hold that there was a tenancy from month to 
 month.^^^ 
 
 § 217. Effect of void lease to render time for termination definite. 
 
 It has already been stated as a general rule that payment of a 
 monthly rent and holding for an indefinite time creates a tenancy 
 from month to month. According to the cases in England and in 
 many jurisdictions of this country, an agreement, which is unenforce- 
 able because not reduced to writing as required by the statute of 
 frauds, will nevertheless have the efl:ect of setting a time for the 
 holding to end and prevent the occupancy from becoming one for an 
 indefinite time. The agreement regulates the terms upon which the 
 tenancy subsists in all respects except as to the duration of the term.^^^ 
 It is a reasonable inference that the parties intended a tenancy on the 
 terms of the original agreement, and the law implies a new contract 
 between the parties corresponding therewith, so far as it is not in 
 conflict with the statute.-^* Occupation for several years under a void 
 lease for years has been held to create a tenancy from year to year, 
 although rent was paid monthly, because that might have been merely 
 for the sake of convenience and was not inconsistent with a letting 
 from year to year.^^* 
 
 However, there is authority for the opinion that at no time can a 
 parol demise, void under the statute of frauds, be resorted to for the 
 purpose of ascertaining the duration of the term.^*'^ If the void lease 
 can be looked at for the purpose of determining the duration of the 
 term, the statute of frauds is evaded beyond doubt; so the question 
 whether the payment of rent was made with reference to a yearly, 
 monthly, or other holding should be determined without reference to 
 the void demise. To create a year to year tenancy, payment of rent 
 must mean payment with reference to a yearly holding. When city 
 property is involved, occupancy and monthly payments as for each 
 month's rent are insufficient, standing alone, to indicate an intention 
 
 ="Hislop V. Moldenhauer, 23 Ore. ^'"'Laughran v. Smith, 75 N. Y. 
 
 119, 31 Pac. 252. 205; Fougera v. Cohn, 43 Hun (N. 
 
 '='Doe v. Bell, 5 Term R. 471; 1 Y.) 454, affirmed in 118 N. Y. 309, 
 
 Cruise Dig. 281-284. 28 N. Y. St. 684. 
 
 -^''Langhran v. Smith, 75 N. Y. =" Warner v. Hale. 65 111. 395; 
 
 205; People v. Rickert, 8 Cow. (N. Wheeler v. Frankenthal, 78 111. 124; 
 
 Y.) 226; Clayton v. Blakey, 8 Term Brownel v. Wech, 91 111. 523. 
 R. 3. 
 
 Jones L. & T.— 17
 
 § 217] KINDS OF TENANCY. 258 
 
 to create a yearly tenancy. These acts cannot be construed as indicative 
 of anything more than an intention to create a tenancy from month to 
 month, and the effect thereof cannot be changed by the mere length 
 of time the occupation has continued. If the void lease cannot be re- 
 ferred to during the first twelve months, it is inconsistent and illogical 
 to say that by the mere lapse of time the inference of a new and valid 
 contract arises.-*'^ In one case the premises were demised by parol for 
 one year at a stipulated rent, payable monthly. Under it the lessees 
 entered into possession, and paid the rent as it accrued for a part of 
 the year. They thereby became tenants from month to month and as 
 such would have been entitled to a month's notice to quit, but they 
 could not be held for a full year.^^^ In a case occurring subsequently 
 a parol lease for a year was made and rent was reserved, payable in 
 monthly instalments. The tenant occupied the whole term and held 
 over. The court decided he also was a tenant from month to month and 
 not one from year to year. Where a parol lease is made, fixing the 
 amount of rent and the time of its payment, and fixing the term at a 
 greater period than one year, it is clearly within the statute of frauds ; 
 and the tenant entering under such voidable contract, and paying rent 
 at the sum fixed by the contract, becomes a tenant from month to 
 month. Being such a tenant and having made payment of rent, and 
 holding over from month to month, he is liable monthly for the rent 
 to be paid by the terms of the contract under which he entered.^®* 
 Nevertheless the inconsistent and illogical result of making a distinc- 
 tion between the holding for the first and for subsequent years was 
 supported in New York. A tenant, who for the first year of his 
 occupation held from month to month, became bound for a year by 
 holding over after the expiration of the first twelve months.^^*^^ 
 
 Where a party enters into the possession of premises under an agree- 
 ment to accept a lease for twenty months, and subsequently refuses to 
 accept the lease, he becomes by such refusal a tenant at will or by 
 sufferance, and may be ejected immediately. But if the landlord sub- 
 sequently accepts rent from the tenant monthly, according to the 
 original agreement, a tenancy from month to month is cieated, com- 
 mencing from the time of entry 
 
 266 
 
 =«= Johnson v. Albertson, 51 Minn. =" Marr v. Ray, 151 111. 340, 37 N. 
 
 333, 53 N. W. 642; Backus v. Stern- E. 1029. 
 
 berg, 59 Minn. 403, 61 N. W. 335. "=' Lawrence v. Hasbrouck, 21 
 
 =«'Warner v. Hale. 65 111. 395; Misc. (N. Y.) 39, 46 N. Y. S. 868. 
 
 Brownell v. Welch, 91 111. 523, fol- ="" Anderson v. Prindle, 23 Wend, 
 
 lowed in People v. Darling, 47 N. (N. Y.) 616, affirming 19 Wend. (N. 
 
 Y. 666. Y.) 391.
 
 359 TENANCY FROM MONTH TO MONTH. [§§ 218, 219 
 
 § 218. A lessee for a year who holds over after his term expires 
 becomes a tenant from year to year even though the rent is payable 
 in monthly instalments. Where a party, holding premises for a cer- 
 tain term, under a written lease, holds over the term, the law will com- 
 pel him to pay rent according to the written lease. Though the pay- 
 ment of rent was monthly it does not imply a renting from month to 
 month, against the testimony that the letting was for one year, on 
 certain monthly payments. The lessees cannot, therefore, abandon 
 the premises without paying rent for the second year upon which they 
 have entered.^'^^ In one case the facts showed a verbal agreement for 
 one year, at ten dollars a month, and for a second year at eleven dol- 
 lars. This being so, the holding over and aceptance of rent continued 
 it as a tenancy from year to year and not from month to month. The 
 fact that rent was payable monthly did not make it any less a contem- 
 plated yearly holding.-"^ 
 
 It is permissible that an annual rent be made payable in monthly 
 instalments for the sake of convenience. This is not the same as the 
 reservation of a monthly rent.-'^'' 
 
 For a tenant from month to month to begin to pay rent at quarterly 
 periods would not change tlie tenancy from one from month to month 
 into one for quarterly periods. ^^"^ 
 
 § 219. A tenancy from month to month is not a continuing right 
 of possession; but as in the case of a tenancy from year to year, it is 
 taken to end and recommence at the expiration of every month.-"^ 
 Nevertheless, tenants from month to month are supposed to continue 
 their rental for each new month upon the same terms as for the pre- 
 vious month, so a reduction of the rent in a monthly letting would be 
 permanent even though no time were specified.-^- A month to month 
 tenancy does not necessarily begin at the beginning of a month, but 
 may have its point of beginning at any time during the month.^^^ 
 
 The act of paying rent to the purchaser of the reversion does not 
 create a new tenancy, but is merely a recognition of the old one. If a 
 
 ="Gladwell v. Holcomb, 60 Ohio ^n Bowman v. Sandgren, 37 111. 
 
 St. 427, 54 N. E. 473; McKinney v. App. 160; Clarke v. Thatcher, 9 
 
 Peck, 28 111. 174. " Mo. App. 436; citing Tomkins v. 
 
 ="8 Schneider v. Lord, 62 Mich. 141, Lawrence, 8 C. & P. 729; Gandy v. 
 
 28 N. W. 773. Jubber, 5 B. & S. 78. 
 
 ■"" Nickolls V. Barnes, 39 Neb. 103, ="= Corson v. Berson, 86 Cal. 433, 
 
 57 N. W. 990, reversing s. c. 32 Neb. 25 Pac. 7. 
 
 195, 49 N. W. 342. -"Russell v. McCartney, 21 Mo. 
 
 ""London &c. Bank v. Curtis, 27 App. 544. 
 Wash. 656, 68 Pac. 329.
 
 I 230] KINDS OF TEXANCY, 360 
 
 tenancy was originally from month to month while the reversion was 
 in the hands of the original lessor, it would still continue to be a ten- 
 ancy from month to month while the reversion was in the hands of his 
 grantee. Moreover, it would be the same holding, and a new term would 
 not begin at the time of the transfer of the lessor's interest."^ Where 
 either a month to month term or the reversion is assigned and the 
 assignee recognizes the tenancy as continuing, it will continue just as 
 it was between the original parties,"^ A mere transfer of title does 
 not in any way change, modify or affect a lease from month to month ; 
 but the grantee simply takes the place of the grantor, and becomes the 
 landlord of the tenant, and the lease continues as before."^ 
 
 The distinction between tenancies from month to month and at will 
 is unimportant in those jurisdictions where a month's notice is re- 
 quired to terminate a tenancy at will. So courts sometimes fail to 
 discriminate between the two.^^^ 
 
 V. Tenancy at Sufferance. 
 
 § 220. General nature of holding. — A lessee for years has an es- 
 tate in the demised land ; a tenant from year to year has a qualified 
 estate ; and a tenant strictly at will holds lawful possession until his 
 tenancy has been brought to an end by some act of the landlord. But a 
 tenancy by sufferance is not a tenancy at all ; it is merely not an adverse 
 possession ; the so-called tenant is merely not a disseisor. It has been 
 aptly described by saying that "A tenancij hy sufferance is not hy the 
 consent hut hy the laches of the owner, and it follows that where the 
 owner has been guilty of no laches there can be no tenancy at suffer- 
 ance."2^* It has never been required that there should be privity either 
 of contract or estate between the parties to a tenancy at sufferance."^ 
 Whenever the continued possession has been clearly assented to, so as 
 to become a holding by assent, instead of by mere laches, the possession 
 would cease to be wrongful, which a tenancy by sufferance to a certain 
 extent always is, and the tenancy at sufferance would be changed to 
 
 ="Hurd v. Whitsett, 4 Colo. 77; =" Haines v. Beach, 90 Mich. 563, 
 
 Shaw v. Schietinger, 51 N. J. Law 51 N. W. 644. 
 
 152, 16 Atl. 186; Marquart v. La "» Moore v. Morrow, 28 Cal. 551, 
 
 Farge, 5 Duer (N. Y.) 559. 554, per Shafter, J.; Spalding v. 
 
 2" Shaw V. Schietinger, 51 N. J. Hall, 6 D. C. 123; Rowan v. Lytle, 
 
 Law 152, 16 Atl. 186. 11 Wend. (N. Y.) 616. 
 
 ''^ Macdonough v. Starbird, 105 "'Smith v. Littlefield, 51 N. Y. 
 
 Cal. 15, 38 Pac. 510. 539; Bennett v. Robinson, 27 Mich. 
 
 26; 1 Cruise Dig., tit. 9, ch. 2, § 4.
 
 261 TENANCY AT SUFFERANCE. . [§ 221 
 
 one at will.^^" The distinguishing feature of a holding by sufferance 
 is the absence of consent. There is merely a failure to take affirmative 
 steps to oust the occupant. This of itself does not show consent to the 
 holding. 
 
 In speaking of an occupation the character of which was not clear, 
 Jackson, J., speaking for the Supreme Court of Massachusetts, said: 
 "If there was any agreement he could not be a tenant at suiferance,"^^^ 
 This kind of tenancy arises from the termination of some estate less 
 than the fee, and held in subordination to the fee. Any one who con- 
 tinues in possession without agreement after the determination of the 
 particular estate by which he gained it becomes a tenant at suffer- 
 ance.^^^ "Tenants per autre vie after the death of the cestui qui vie, 
 tenants for years whose terms have expired, tenants at will whose 
 estates have been determined by alienation or by the death of the lessor, 
 undertenants holding over after the expiration of the original lease, 
 and a grantor who agrees to give possession by a particular day and 
 holds over, are tenants at sufferance."^*' 
 
 § 221. Arises on holding over. — T\^iere the term of holding of a 
 tenant for life or for years comes to an end and he nevertheless con- 
 tinues in occupation of the demised premises, the tenant thereby be- 
 comes a tenant at sufferance.^** Such a holding is not at will, because 
 no consent to it can be implied on the part of the landlord, and without 
 the consent of the landlord there cannot arise a tenancy at will.-*^ So 
 a lessee for a fixed term agreeing to quit upon a sale of the premises 
 became a tenant at sufferance by holding over after the sale had been 
 consummated.^*^ If a tenancy at will, under a verbal lease, dependent 
 on a condition, is terminated by a breach thereof, the tenant holding 
 over becomes a tenant at sufferance. The reason for this is that a con- 
 tingent limitation is valid to end a tenancy at will without any notice 
 to quit.^*^ 
 
 A tenant at sufferance, holding over after the expiration of a written 
 
 =*" Bennett v. Robinson, 27 Mich. v. Lyons, 152 Mass. 310, 25 N. E. 
 
 2'5. 721; Smith v. Littlefield, 51 N. Y. 
 
 -'^ Johnson v. Carter, 16 Mass. 443. 539; Coomler v. Hefner, 86 Ind. 
 
 =«=Cook v. Norton, 48 111. 20. 108; Mendel v. Hall, 13 Bush. (Ky.) 
 
 =«« Brown v. Smith, 83 111. 291, per 232. 
 
 Breese, J. =« Ferine v. Teague, 66 Cal. 446, 
 
 ="Abeel v. Hubbell, 52 Mich. 37, 6 Pac. 84. 
 
 17 N. W. 531; Hauxhurst v. Lobree, =«" Hollis v. Pool, 3 Mete. (Mass.) 
 
 38 Cal. 563; Poole v. Engelke, 61 350. 
 
 N. J. Law 124, 38 Atl. 823; Hanson =" Creech v. Crockett, 5 Gush. 
 
 V. Johnson, 62 Md. 25, 29; Warren (Mass.) 133.
 
 § 231] KINDS OF TENANCY. 262 
 
 lease, does not become a tenant at will by virtue of stipulations that he 
 will "during the term and such further term as he holds possession" 
 pay a certain quarterly rent. The lease in the case under consideration 
 contained the stipulations on the subject of holding over which it is 
 necessary to consider. The covenants for the payment of rent, in case 
 the lessees should hold over, did not give them the right to hold over. 
 Although it was a valid contract, it did not enlarge or alter the term. 
 When the lessors notified the lessees that they should regard them as 
 tenants at will, the lessees replied that they regarded themselves as 
 tenants at sufferance. The lessees thus refused to consent to the crea- 
 tion of any tenancy more permanent than a tenancy at sufferance.^*^ 
 
 The law is that a tenant for life cannot make a lease for a longer 
 period than his own term, unless the remainder-man joins ; and that, 
 when a person is in possession under a tenant for life, and the latter 
 dies, such sub-tenant then becomes a tenant by sufferance to the re- 
 mainder-man.^^^ But if the lessee of the life tenant is not in possession 
 or does not hold over, a mere recognition by the remainder-man of a 
 lease previously made by the life tenant does not constitute such ten- 
 ancy. The lessee, never having occupied the premises, owed no duty of 
 fealty to the remainder-man. There was no privity of contract between 
 these parties, and the death of the tenant for life did not operate as an 
 assignment of the covenants in the lease. The personal representatives 
 of the life tenant may be entitled to recover the rent due on the contract 
 up to the time of his death ; but the right of the remainder-man does 
 not arise or spring from the lease made by the tenant for life. If it 
 exists at all, it comes from the continued occupation of the lessee.^^" 
 The tenant of a widow having dower interest becomes a tenant at suf- 
 ferance to the heirs by his continued occupation after the death of the 
 widow. Such a tenancy at sufferance would continue the possession of 
 the heirs and prevent the statute of limitations from running against 
 their right to disaffirm a conveyance made during minority.^^^ The 
 holding of the occupant in such case would not be adverse to the heir 
 who acquired the title to the land after the death of the dowress. The 
 tenant could not set up a claim of ownership by virtue of a tax title 
 which he had bought in.^^^ 
 
 ==^ Edwards v. Hale, 9 Allen v. Sweeney, 14 R. I. 581; Manning 
 
 (Mass.) 462. v. Brown, 47 Md. 506, 510. 
 
 '«' Peters v. Balke, 170 111. 304, 48 ='° Wright v. Graves, 80 Ala. 416. 
 
 N. E. 1012, in the words of Justice =^^ Harvey v. Briggs, 68 Miss. 60, 
 
 Magruder. As same see Wright v. 8 So. 274. 
 
 Graves, 80 Ala. 416; Horsey v. Hor- ='= Lyebrook v. Hall, 73 Miss. 509, 
 
 sey, 4 Harr. (Del.) 517; Kenney 19 So. 348. 

 
 263 TENANCY AT SUFFERANCE. [§ 222 
 
 Where an easement was taken by power of eminent domain in prem- 
 ises under lease, the tenant holding over after the end of his term be- 
 came a tenant at sufferance to his former landlord. Inasmuch as the 
 fee was not taken, the plaintiff remained the owner of the fee, and the 
 defendant, remaining in occupation, was liable as a tenant at suffer- 
 ance. The tenant was not evicted here, but continued to enjoy the 
 premises. It was of no consequence that everybody else on the line of 
 the taking was disturbed in their occupation so long as this tenant 
 was not.^^^ 
 
 § 222. To constitute a tenancy by sufferance there need not have 
 "been any prior contract of letting ; all that is necessary is that the ten- 
 ant should have entered into possession of the premises lawfully and 
 shall continue to hold after the termination of his right; provided, 
 however, that he does not come in by act of law ; for if he comes in by 
 act of law and then holds over, he is regarded as an intruder, abator 
 or trespasser.^^* A grantor who remains in possession without any con- 
 tract to that effect after the delivery of the deed becomes a tenant at 
 sufferance, and as such is not liable for rent. Furthermore, such a 
 contract for continued occupancy would not be implied from a simple 
 continuance in possession after the sale. The burden of proving it 
 would bo on the person setting it up.^^^ Non-payment of the purchase 
 money Avould not affect the result after the property had been con- 
 veyed to a third person who took in reliance on the title deeds. After 
 conveying the legal title, the grantor was a mere tenant at sufferance.^'**^ 
 An employe occupying premises owned by his master becomes, on 
 holding over after the termination of his employment, a tenant at 
 sufferance. This is the effect of his continuing in possession even 
 though the relation of landlord and tenant had not previously existed 
 between the parties.^^'^ In another case an employer agreed to give his 
 employe as part of his wages a room to live in, no time being specified 
 during which the relationship was to continue. The employe quitted 
 the service but continued to occupy the premises, and the employer 
 evicted him. This the court held he had a right to do. When of his 
 own accord the employe left the service, his right to remain longer on 
 
 ^^Devine v. Lord, 175 Mass. 384, 18 N. W. 569; Bennett v. Robinson, 
 
 56 N. E. 570. 27 Mich. 26. 
 
 '^* Johnson v. Donaldson, 17 R. I. ^ Work v. Brayton, 5 Ind. 396. 
 
 107, 20 Atl. 242; Payton v. Sher- =»^ School District No. 11 v. 
 
 hurne, 15 R. I. 213, 2 Atl. 300. Batsche, 106 Mich. 330, 64 N. W. 
 
 '== Stevens v. Hulin, 53 Mich. 93, 196; People v. Annis, 45 Barb. (N. 
 
 Y.) 304.
 
 §§ 223, 224] KINDS OF tenancy. 264 
 
 the premises was at an end; thenceforth he was there by the mere 
 sufferance of the owner.^^^ 
 
 § 223. A mortgagor holding after a sale of the mortgaged prop- 
 erty for breach of condition is a tenant at sufferance. During sucli 
 time as the mortgage debt has to run, a mortgagor continuing in pos- 
 session has been likened to a tenant at will to his mortgagee, but with- 
 out denying the accuracy of this comparison, all the elements of a ten- 
 ancy at sufferance arise after a breach of the condition in the mort- 
 gage.-''^ The effect of holding over is not modified by the circumstance 
 that the parties bear the relation of mortgagor and mortgagee to one 
 another. Thus, where the mortgagor remained in possession for four 
 months by agreement and held over after the end of the four months, 
 he became tenant by sufferance to the mortgagee. ^'*° What is true re- 
 garding a mortgagor applies with equal force to those who stand in his 
 shoes. Therefore, a tenant with a lease junior to a mortgage becomes a 
 mere tenant at sufferance upon a breach of the condition in the mort- 
 gage. This was held in a case where the mortgagor had conveyed away 
 his equity of redemption and taken back a lease of the premises from 
 his grantee.^"^ It has also been held that a mortgagor in possession 
 after sale, in pursuance of a power in the mortgage, is a tenant by 
 sufferance.^'^^ It seems to follow that a mortgagor's grantee of the 
 equity of redemption in possession is likewise a tenant by sufferance, 
 if as such grantee he enters before the mortgagee's sale. At any rate, 
 the grantee would be a tenant at sufferance to the original mortgagor 
 after he had purchased at the mortgagee's sale and received a convey- 
 ance of the premises.^"^ 
 
 § 224. Another case in which a tenancy at sufferance arises with- 
 out any preceding contract of tenancy is that of a purchaser put in 
 possession before a transfer of title, and the rule is that a purchaser 
 in possession who makes default in the payment of an instalment of 
 the purchase money becomes a tenant by sufferance.^'** This applies 
 to a contract under which the purchaser is given the right to posses- 
 
 =^^ Eichengreen v. Appel, 44 111. ="- Kinsley v. Ames, 2 Mete. 
 
 App. 19. (Mass.) 29. 
 
 289 Mayo V. Fletcher, 14 Pick. ^"^ Johnson v. Donaldson, 17 R. I. 
 
 (Mass.) 525; Kinsley v. Ames, 2 107, 20 Atl. 242. 
 
 Mete. (Mass.) 29. =« Doe v. Lawder, 1 Stark. 246; 
 
 sooMayQ y Fletcher, 14 Pick. Sanders v. Richardson, 14 Pick. 
 
 (Mass.) 525. (Mass.) 522. 
 
 ^"iTuttle v. Lane, 17 Me. 437.
 
 265 TENANCY AT SUFFERANCE. [§ 225 
 
 sion. A breach of the agreement forfeits his right to hold possession 
 under it. But where the contract is silent in regard to possession, and 
 the purchaser is put into possession without conditions, the retention 
 of possession is not contrary to the conditions or covenants of the con- 
 tract, because there were none on the subject. Whatever rights existed 
 on the strength of it depended on implications. That the purchaser 
 was a tenant at will and entitled to three months' notice to quit under 
 the statute was the conclusion reached by the Michigan court on this 
 state of facts.^"^ But the landlord cannot by his own default bring 
 about this change. Thus, a contract of sale was made, the purchaser 
 put in possession, and it was agreed that he should be allowed to re- 
 main in possession till the day set for the delivery of the deed. The 
 seller failed to deliver the deed, and sued the purchaser in trespass, 
 but it was held that the seller could not by his own default convert a 
 lawful holding into a trespass. He could not better his position or en- 
 large his rights in the premises by his own violation of good faith.^°^ 
 In another instance an agent employed to care for property put an 
 intending vendee into possession and contracted to sell the premises to 
 him, subject to the approval of the owner. The owner never gave his 
 approval, and it was held that as long as the party remained in posses- 
 sion he was a tenant at sufferance.^"' 
 
 § 225. Exception to rule. — The rule that one who comes into pos- 
 session of land lawfully, and holds after the expiration of his right, 
 becomes a tenant at sufEerance, does not apply to one whose original 
 right of occupancy became vested in him by operation of law. Thus, a 
 husband holding land which belongs to his wife by virtue of his marital 
 rights becomes an adverse possessor after the death of his wife, and 
 not a tenant at sufferance. The statute of limitations would run 
 against the claims of the true owner.^''* Lord Coke, in his commentary 
 on Littleton, says: "There is a diversity between particular estates 
 created by the tenant and particular estates created by act of law ; as, 
 if a guardian, after the full age of heire, continueth in possession, he 
 is no tenant at sufferance, but an abator, against whom an assize of 
 mort d'ancestor doth lye, et sic de similibus."^^^ "Where a man comes 
 
 ^"^Rawson v. Babcock, 40 Mich. N. W. 814; Hanson v. Johnson, 62 
 
 330. Md. 25; Brown v. Smith, 83 111. 
 
 '"'^ Dunham v. Townsend, 110 291; Livingston v. Tanner, 14 N. 
 
 Mass. 440. Y. 64. See also, Jackson v. Harsen, 
 
 ^" Smith v. Singleton, 71 Ga. 68. 7 Cow. (N. Y.) 323. 
 
 '"'Doe v. Gregory, 2 A. & E. 14; ^""1 Co. Lit. 57b. 
 Pattison v. Dryer, 98 Mich. 564, 57
 
 § 225] KINDS OF TENANCY. 266 
 
 to a particular estate by the act of the party, then, if he holds over, he 
 is tenant at sufferance. But where he comes to the particular estate 
 by act in law, as, if a guardian, after the full age of the heir, continues 
 in possession, he is not a tenant at sufferance, but an ahator."^^^ Sub- 
 sequent text writers on the law of property have commented on this 
 point, and recognized a material distinction between the cases of a 
 person coming to an estate by act of the party and afterwards holding 
 over, and one coming to an estate by act of the law and then holding 
 over. Statements to this effect are found in Kent, Washburn, and 
 Angell.3" 
 
 In Ehode Island the law is otherwise on this point. Thus, in one 
 ease a husband and wife occupied the husband's premises until the 
 husband deserted his wife and made a conveyance of the premises. 
 Before the conveyance the wife continued in occupation by virtue of 
 the marital relation. On the conveyance her right to occupy as a wife 
 ceased, and she became a tenant at sufferance to the grantee. "Her 
 original entry under her husband having been lawful, her possession 
 did not become unlawful, or, in other words, she did not become a 
 trespasser until some act on the part of the owner to terminate her 
 right to occupy ."^^^ 
 
 However, the common-law rule on this point would lead to the 
 opposite conclusion in such a case. A divorced wife who persists in 
 occupying a room in her husband's house against his will is a mere 
 intruder, and not a tenant at sufferance. During the pendency of the 
 divorce proceedings the wife had been allowed to occupy apartments 
 
 ^"1 Cruise Dig., tit. ix, ch. 2, § 2. of tlie party and afterward liolding 
 ^^ Kent's Comm. Vol. IV, p. 117; over and by act of the law and 
 Washburn on Real Prop., Vol. I, p. their holding over. In the first 
 393; Angell on Limitations, § 443. case, which included an estate de- 
 In Livingston v. Tanner, 14 N. Y. terminable upon any life or lives, 
 64, 69, the court said: "In respect he was regarded as a tenant at suf- 
 to the two other cases mentioned ferage. In the other, to which be- 
 in the section — that of a guardian or long guardians or trustees holding 
 trustee holding for an infant and for infants, and husbands seized in 
 a husband seized in right of his right of their wives only, they were 
 wife only, — neither of these persons trespassers, and the relation of 
 holding over after the determina- landlord and tenant never; in any 
 tion of their respective estates be- sense, existed." 
 
 came tenants at sufferance at com- ^^- Taylor v. O'Brien, 19 R. I. 429, 
 mon law. They were mere intrud- 34 Atl. 739, per Matteson, C. J., cit- 
 ers, abators and trespassers. At ing Kenney v. Sweeney, 14 R. I. 
 common law there was a material 581; Payton v. Sherburne, 15 R. I. 
 distinction between the cases of a 213, 2 Atl. 300; Johnson v. Donald- 
 person coming to an estate by act son, 17 R. I. 107, 20 Atl. 242. 
 
 i
 
 267 TENANCY AT SUFFERANCE. [§' 226 
 
 in her husband's house. "As a wife she had undoubtedly a right to use 
 all the apartments in the house, in virtue alone of the marriage rela- 
 tion. When that ceased by the decree of the court, her rights to any 
 and all portions of the house ceased. . . . after the divorce her 
 rights terminated. She was not a tenant on sufferance, but an intruder 
 from and after the day the divorce was granted."^^^ But where a hus- 
 band allowed his divorced wife to keep possession of a farm for several 
 years, she became his tenant at will. She "was not a tenant at suffer- 
 ance. She was no less, at any rate, than a tenant at will. Whether or 
 not any difficulty existed in her tenure during the marriage, there 
 could have been none after the divorce."^^* 
 
 § 226. Rights of tenant at sufferance. — As has already been pointed 
 out, a tenant at sufferance is not in reality a tenant at all. He is 
 merely in a position where the statute of limitations will not run 
 against the right of the owner to recover possession of the premises. 
 It follows that the duties of such an occupant are limited, and his 
 rights and privileges are correspondingly few. "The tenant at suffer- 
 ance has merely a naked possession ; stands in no privity to the land- 
 lord; is not liable for rents, unless expressly made so by statute, nor 
 is he entitled to notice to quit. The landlord may put an end to the 
 tenancy when he thinks proper, and may, under certain circumstances, 
 treat the one in possession as an intruder or trespasser."^ ^^ By refus- 
 ing to leave when ordered to do so, a tenant at sufferance becomes a 
 trespasser. The lessor, after the term is ended, may enter at pleasure 
 and order the lessees out, and if they hold over, there is no question 
 that it is a trespass.^^** All the books agree that he retains the posses- 
 sion as a wrong-doer, just as a disseisor acquires and retains his pos- 
 session by wrong.^^^ But before being allowed reasonable time to leave, 
 one occupying by the sufferance of the true owner is not guilty of a 
 trespass.^^^ "If the landlord suffered the tenant to remain in posses- 
 sion after the expiration of the term, the common law intervened by 
 requiring that the tenant should not be subjected to an action of 
 trespass (though he might be to an action of ejectment), un- 
 less an entry or demand were first made, and by declaring that, as the 
 
 '"Brown v. Smith, 83 111. 291, per 307; Smith v. Littlefield, 51 N. Y. 
 
 Breese, J. 539. 
 
 '"Wilson v. Merrill, 38 Mich. 707. '^^Danforth v. Sargent, 14 Mass. 
 
 "^ McLeran v. Benton, 73 Cal. 329, 491. 
 
 14 Pac. 879, per Paterson, J., citing '"2 Bl. Com. 150. 
 
 Hauxhurst v. Lobree, 38 Cal. 563; "'Pratt v. Farrar, 10 Allen 
 
 Meier v. Thiemann, 15 Mo. App. (Mass.) 519.
 
 § 227] KINDS OF TEXAXCY. 2G8 
 
 tenant was in possession under lawful title, the continuance in pos- 
 session should not be deemed unlawful until the landlord, by some act 
 like an entry, should put the tenant in the wrong. This shadowy estate 
 was termed tenancy at sufferance, . . . Practically, it differed 
 from the holding of a trespasser only in this, that the landlord, by his 
 acquiescence, could at any time base upon it the relation of landlord 
 and tenant." . . .^^^ While it is true that a tenant at sufferance 
 can hardly be called a tenant at all, and that his holding is without 
 right of any kind, yet if a landlord permits him to remain, and espe- 
 cially if he receives rent of him, he then becomes a tenant at will.^^" 
 
 The nature of this kind of holding was examined in an inquiry to 
 ascertain the liability of a tenant at sufEerance for the loss of buildings 
 by fire. Now, the only point of difference between the case of the dis- 
 seisor and the tenant at sufferance is that the owner cannot maintain 
 an action of trespass against his tenant by sufEerance until he has en- 
 tered upon the premises. Upon this view, the liability of the tenant 
 to answer for the loss by fire is regulated not by the rule applicable to 
 tenants under contract or holding by right, but by that which governs 
 the case of the disseisor and unqualified wrong-doer. A mere disseisor 
 is responsible for any damage which results from any of his wrongful 
 acts. He has no right to build any fire upon the premises, and if mis- 
 fortune results from it he must bear the loss. Since, however, the rule 
 that a tenant at sufferance is not liable in trespass is well established, 
 the form of action in which the tenant would be liable would be tres- 
 pass on the case.^^'^ 
 
 A taking by eminent domain of land which is occupied by a tenant 
 at sufferance does not deprive the occupier of anything for which he 
 can claim damages. A prior tenancy had been terminated by proper 
 notice, but the lessee did not vacate the premises on the day specified. 
 His remaining in possession after that day gave him no right as a 
 tenant. At best such occupancy was by the mere sufferance of the 
 lessor, and conferred no kind of estate in the land.^-- 
 
 § 227. The common law gave no right of action in any case 
 against a tenant at sufferance to recover for use and occupation. ^-^ 
 
 At common law, tenants at sufferance were not liable to pay rent 
 
 ^" Semmes v. United States, 14 '-" Shaaber v. Reading City, 150 
 
 Ct. CI. (U. S.) 493, 501, per Nott, J. Pa. St. 402, 24 Atl. 692. 
 
 ""Dunning v. Finson, 46 Me. 546; ^-^ Livingston v. Tanner, 14 N. Y. 
 
 Ramsdell v. Maxwell, 32 Mich. 285. 64; Smith v. Littlefield, 51 N. Y. 
 
 "^Russell v. Fabyan, 34 N. H. 539. 
 218.
 
 269 
 
 TENANCY AT SUFFERANCE. 
 
 [§ 227 
 
 strictly so called, because it was the folly of the owners to allow them 
 to continue in possession after the determination of the preceding 
 estate.^-* In a case before the Court of Exchequer a purchaser tried 
 to recover in use and occupation from his grantor, who had remained 
 in occupation of part of the premises. The court denied the right of 
 recovery and nonsuited the plaintiff, on the ground that there was no 
 agreement in regard to the holding. Baron Rolfe remarked in his 
 opinion : "If a vendor remains in possession by agreement, the terms 
 of the agreement will speak for themselves ; if not, he is a wrong-doer, 
 and may be turned out by ejectment, and is liable in trespass for 
 mesne profits."^'^ So use and occupation will not lie when the holding 
 is not in express subordination to the owner's title. ^-*^ Where a sub- 
 tenant renting from a lessee holds over after the termination of the 
 original lease, the landlord cannot assent to such holding over, for by 
 so doing he would be accepting a new tenant, and thereby releasing 
 the original lessee from liability by reason of such holding over. The 
 landlord can recover rent from the original lessee for the time the sub- 
 tenant remains in occupation.^^^ A somewhat similar situation arises 
 where a lease runs to several and some of them hold over after the end 
 of the term. Until the landlord agrees to accept those remaining in 
 possession as his tenants, he may hold all liable to pay for the use of 
 the premises while the occupation continues.^^* 
 
 In Massachusetts, tenants at sufferance have by statute been made 
 liable to pay rent during such time as they occupy the premises.^^^ 
 By this statute a tenant at will remaining after notice of a sale of the 
 reversion is made liable to the purchaser for rent.^^*^ A tenant at will 
 
 ^^M Kent Comm. (6th ed.) 116; 
 
 1 Cruise Dig., tit. 9, ch. 2, § 5; De- 
 lano V. Montague, 4 Cush. (Mass.) 
 42. Alabama: Smith v. Houston, 
 16 Ala. 111. California: McLeran 
 V. Benton, 73 Cal. 329, 14 Pac. 879, 
 
 2 Am. St. 814. Illinois: Dixon v. 
 Haley, 16 111. 145. Maryland: De 
 Young v. Buchanan, 10 Gill & J. 149, 
 32 Am. Dec. 156. Massachusetts: 
 Emmons v. Scudder, 115 Mass. 367; 
 Flood v. Flood, 1 Allen 217. Michi- 
 gan: Stevens v. Hulin, 53 Mich. 93, 
 18 N. W. 569. New Jersey: Con- 
 don v. Barr, 47 N. J. Law 113, 54 
 Am. R. 121. 
 
 325 Tg^ V. Jones, 13 M. & W. 12. 
 '='«Cripps v. Blank, 9 D. & R. 480. 
 
 ^"Ibbs V. Richardson, 9 A. & E. 
 849. 
 
 '=' Christy v. Tancred, 7 M. & W. 
 127. 
 
 ^^''Rev. Laws 1902, ch. 129, §§ 3, 
 6, 8. 
 
 ^^ Bunton v. Richardson, 10 Al- 
 len (Mass.) 260. In Merrill v. 
 Bullock, 105 Mass. 486, Gray, J., 
 said: "In this Commonwealth, it 
 was always held that where the 
 tenant at sufferance had never oc- 
 cupied under the plaintiff or under 
 any party in privity with him, but 
 claimed to hold under an adverse 
 title, the action for use and occu- 
 pation could not be maintained, be- 
 cause to support such an action
 
 §■ 228] KIXDS OF TENANCY. 270 
 
 of a mortgagor of land who continues in possession after entry by the 
 mortgagee, with knowledge of the entry, becomes liable to him for use 
 and occupation.^^^ A lessee may recover rent from his tenant at suffer- 
 ance although the written lease terminates during the pendency of the 
 action.^^^ 
 
 But a tenant at sufferance, made such by a conveyance of which he 
 had no notice or knowledge, is not liable to an action for rent under 
 the provisions of this statute. "It has long been held to be a rule, 
 founded on the plainest principles of equity and fair dealing, that 
 where a right of action depends on a fact peculiarly within the knowl- 
 edge of the plaintiff, and which the other party may not be presumed 
 to know, and does not in fact know, the plaintiff must give the de- 
 fendant notice of such f act.''^^^ 
 
 § 228. Right of entry on tenant at sufferance. — The owner of land 
 who forcibly enters thereon and ejects without unnecessary force a 
 tenant at sufferance, who has had reasonable notice to quit, is not liable 
 to an action for an assault, and, a fortiori, he would not be liable in an 
 action of trespass. "A tenant holding over after the expiration of his 
 tenancy is a mere tenant at sufferance, having no right of possession 
 against his landlord. If the landlord forcibly enters and expels him, 
 the landlord may be indicted for the forcible entry. But he is not liable 
 to an actio-n of tort for damages, either for his entry upon the prem- 
 ises or for an assault in expelling the tenant, provided he uses no more 
 force than is necessary. The tenant cannot maintain an action in the 
 nature of trespass quare clausum fregit, because the title and the law- 
 ful right to the possession are in the landlord, and the tenant, as 
 against him, has no right of occupation whatever. He cannot main- 
 tain an action in the nature of trespass to his person for a subsequent 
 expulsion with no more force than necessary to accomplish the purpose, 
 
 there must be evidence of a con- son, 4 Mete. 224, 228, that either a 
 
 tract or undertaking by the de- tenant at will or a tenant at suf- 
 
 fendant, express or implied, and ferance occupying by permission of 
 
 because where the defendant had the landlord, was liable to him in 
 
 never admitted himself to be a an action of assumpsit for use and 
 
 tenant and so estopped himself occupation." 
 
 to deny his landlord's title, con- ^^^ Lucier v. Marsales, 133 Mass. 
 
 flicting titles to real estate could 454. 
 
 not be tried in an action of as- •*^- Casey v. King, 98 Mass. 503. 
 sumpsit. . . . But it was assumed ='' Dixon v. Smith, 181 Mass. 218, 
 
 by Mr. Justice Wilde, in Keay v. 63 N- E. 419, quoting from Furlong 
 
 Goodwin, 16 Mass. 1, 4, and by Chief v. Leary, 8 Cush. (Mass.) 409, 410. 
 Justice Shaw, in Gould v. Thomp-
 
 271 TENANCY AT SUFFEKANCE. [§ 228 
 
 because the landlord, having obtained possession by an act which, 
 though subject to be punished by the public as a breach of the peace, 
 is not one of which the tenant has any right to complain, has, as 
 against the tenant, the right of possession in the premises; and the 
 landlord, not being liable to the tenant in an action of tort for the 
 principal act of entry upon the land, cannot be liable to an action for 
 the incidental act of expulsion, which the landlord, merely because of 
 the tenant's own unlawful resistance, has been obliged to resort to in 
 order to make his entry effectual. To hold otherwise would enable a 
 person occupying land utterly without right to keep out the lawful 
 owner until the end of a suit by the latter to recover the possession to 
 which he is legally entitled."^^* If the owner of land held by a tenant 
 at sufferance enter and expel the occupant, but makes use of no more 
 force than is reasonably necessary to accomplish this, he will not be 
 liable to an action of trespass quare clausum, nor for assault and bat- 
 tery, nor for injury to the occupant's goods, although it becomes neces- 
 sary to use such force and violence as to subject him to indictment for 
 a breach of the peace, or under the statute for making a forcible 
 entry.^^^ 
 
 Although it was decided in an early case in Massachusetts that the 
 plea of liberum tenementum was not a justification of a charge of per- 
 sonal assault and battery,^^** this decision, so far as it allowed the 
 plaintiff to recover damages for the incidental injury to him or to his 
 personal property, has been overruled. ^^^ However, a landowner has 
 no right to enter by force upon a tenant at will. The tenant might 
 stay till removed by legal process, and in Maine it has been held that 
 the tenant could bring trespass qiicu-e clausum for such entry. ^^^ 
 
 Before entry, a landlord cannot maintain an action of trespass 
 against a tenant by sufferance, as he might against a stranger. Because, 
 the tenant being in by lawful title, the law will presume him to con- 
 tinue upon a title equally lawful till the owner declare his continuance 
 to be tortious.^^^ But the landlord has the right of entering upon a 
 tenant at sufferance at any time without being liable in an action of 
 
 ^'*Low V. Elwell, 121 Mass. 309, =''» Sampson v. Henry, 13 Pick, 
 
 per Gray, C. J.; Jackson v. Farmer, (Mass.) 36. 
 
 9 Wend. (N. Y.) 201; Overdeer v. ==" Eames v. Prentice, 8 Cush. 
 
 Lewis, 1 Watts & S. (Pa.) 90; Kel- (Mass.) 337. 
 
 lam V. Janson, 17 Pa. St. 467; ==» Brock v. Berry, 31 Me. 293. 
 
 Stearns v. Sampson, 59 Me. 568; ^^^ Uridias v. Morrell, 25 Cal. 31; 
 
 Sterling v. Warden, 51 N. H. 217. Bright v. McOuat, 40 Ind. 521; 
 
 === Manning v. Brown, 47 Md. 506, Keay v. Goodwin, 16 Mass. 1; Kis- 
 
 citing Washburn on Real Prop. (3d ing v. Stannard, 17 Mass. 282. 
 ed.), vol. I, p. 538.
 
 § 229] KINDS OF TEXANCT. 272 
 
 trespass quare clausum. The objection to such an action is that the 
 plaintiff cannot allege that it was his close upon which the entry was 
 made. The so-called tenant holds possession wrongfully. The owner 
 has a full right of entry.^**^ Slight acts are sufficient to constitute an 
 entry upon a tenant at sufferance. After the expiration of a lease for a 
 definite time, the agent of the lessor went on the land and cut down 
 some trees by the direction of the lessor. The lessee remained on the 
 land. This was held to be a sufficient resumption by the lessor to en- 
 able him to maintain trespass.^'*^ 
 
 In two jurisdictions, however, it has been held that a tenant by 
 sufferance, upon whom a landlord has entered by force, may maintain 
 an action of trespass quare clausum fregit.^*^ In an exhaustive article 
 on the subject, these decisions are explained as resting on a misappre- 
 hension of the English authorities.^*' However, many of the statutes 
 in this country give the tenant redress in case his landlord makes a 
 forcible entry upon him. 
 
 § 229. The term tenant at sufferance is not always used in the 
 strict sense which it bore in the old law. In certain cases, the statu- 
 tory requirements for notice to terminate tenancies at will would work 
 hardship. To avoid this the occupant has been called a tenant at suf- 
 ferance. On the other hand, the question whether a tenancy was one 
 at will or by sufferance merely, becomes immaterial when both are 
 required to be terminated by the same notice.'** In regard to this 
 matter, Lyon, chief justice of the Wisconsin court,'*^ said: "The 
 doctrine that a tenancy by sufferance necessarily arises when a man 
 comes into possession of lands lawfully, but holds over wrongfully 
 after the termination of his interest therein, has been qualified in this 
 state and elsewhere in an important particular." In the case to which 
 the learned judge referred, it had been held that consent to the hold- 
 ing by the landlord was necessary to create a tenancy at sufferance.'*^ 
 The opinion continues : "It is quite true that the ruling in that case 
 narrows the distinction which has sometimes been supposed to exist 
 between tenancies at will and by sufferance. But since the adoption 
 
 ^ Moore v. Mason, 1 Allen Page v. DePuy, 40 111. 506; Reeder 
 
 (Mass.) 406; Curtis v. Galvin, 1 Al- v. Purdy, 41 111. 279. 
 
 len (Mass.) 215; Esty v. Baker, 50 "M Am. L. Rev. 429. 
 
 Me. 325; Wilde v. Cantillon, 1 =" Bennett v. Robinson, 27 Mich. 
 
 Johns. Cas. (N. Y.) 123. 26. 
 
 =" Dorrell v. Johnson, 17 Pick. ^" Eldred v. Sherman, 81 Wis. 182, 
 
 (Mass.) 263. 186, 51 N. W. 441. 
 
 ^Dustin v. Cowdry, 23 Vt. 631; =" Meno v. HoefEel, 46 Wis. 282, 
 
 1 N. W. 31. 
 
 I
 
 273 TENANCY AT SUFFERANCE. [§' 230 
 
 of our statutes on the subject of terminating such tenancies, which 
 puts them on precisely the same footing, it is not unjust or unreason- 
 able thus to narrow the supposed distinction between them ; and were 
 it entirely abolished, the result would be, at most, the abolition of a 
 mere technicality of the old law, for the retention of which no good 
 reason can be given." Thus, because of a statute declaring that all 
 general tenancies should be estates from year to year, it was held that 
 mere permission to use land, without any provision for rent, could at 
 most amount to a tenancy at sufferance, if indeed it could amount to 
 that.^*^ In a case where one occupying land rent free for an indefinite 
 term by consent of the owner was called a tenant by sufferance, the 
 point at issue was whether the land could be charged with a mechanic's 
 lien for building materials. To decide that it could not be so charged, 
 it was only necessary to hold that the tenant had no transferable in- 
 terest, and the holding might have been a tenancy at will as well as 
 one by sufferance. ^^^ The same criticism could be made in a case where 
 the holder of a leasehold estate put a person into possession under a 
 promise to give him the land, and the court said the occupant was a 
 tenant at sufferance. The decision of the case did not depend on the 
 nature of the tenancy.^*^ 
 
 At common law the purchaser of a life estate becomes a tenant at 
 sufferance after death of life tenant, but by the New York statute he 
 becomes a trespasser and is not entitled to notice to quit.^^*' 
 
 § 230. Use of term in statutes. — As has already been seen the pe- 
 culiar nature of this form of tenure is that it confers no rights and 
 arises without consent; the occupier simply is not a trespasser; he 
 holds in subordination to the title of the true owner. As soon as an 
 attempt is made to give the tenant at sufferance rights to notice, diffi- 
 culties arise as to the construction of the term. Thus, under a statute 
 providing that whenever there was a tenancy at will or by sufferance, 
 created in any manner, it could be terminated only on one month's 
 notice, the tenant could not by the mere fact of holding over and re- 
 fusing to surrender possession create a tenancy either at will or suf- 
 ferance in himself without the consent of his landlord. The term ten- 
 ancy at sufferance as used in the statute was not given the meaning it 
 had at common law.^^^ Taylor, J., speaking for the Wisconsin court, 
 
 ^'Cargar v. Fee, 140 Ind. 572, 39 ^Livingston v. Tanner, 14 N. Y. 
 
 N. E. 93. 64. 
 
 '''' Proctor V. Tows, 115 111. 138, 3 ^^ Smith v. Littlefield, 51 N. Y. 
 
 N. E. 569. 539; Rowan v. Lytle, 11 Wend. (N. 
 
 =^° Kaufman v. Cook, 114 111. 11, Y.) 616; Meno v. Hoeffel, 46 Wis. 
 
 28 N. E. 378. 282, 1 N. W. 31. 
 Jones L. & T.— 18
 
 § 230] KINDS OF TENANCY. 274 
 
 said : "If the tenant, by simply holding over after the expiration of 
 his term, becomes a tenant at sufferance, requiring the thirty days' 
 notice to quit, and the notice be given and the landlord delayed in the 
 commencement of his proceedings for a day after the thirty days ex- 
 pired, a tenancy at sufference would, according to the claim of the 
 learned counsel, again exist in favor of the tenant, which must again, 
 be terminated by another thirty days' notice, and so ad infinitum. The 
 injustice, if not absurdity, of this claim on behalf of the tenant . . . 
 is fully demonstrated. . . ."^" 
 
 In Michigan, on the contrary, the term tenancy at sufferance, when 
 used in a statute in regard to notice to quit, was interpreted in its old 
 common-law sense. "The statute says nothing of privity between the 
 parties, and certainly none can be required by implication in the case 
 of a tenancy at sufferance ; since there never was any privity, either of 
 contract or estate, in this kind of tenancy, and to require it would be 
 to take this species of tenancy out of the statutes."^^^ 
 
 In Massachusetts an early statute required a three months' notice 
 to terminate a tenancy by sufferance, but a subsequent revision, which 
 provided "that estates at will may be determined by three months' 
 notice, designedly omitted tenancies at sufferance, because, as the com- 
 missioners say in their note to this section, so long as the party con- 
 tinues to be a mere tenant at sufferance his estate is, and ought to be, 
 determinable at any moment at the pleasure of the landlord."^^* 
 
 The Ehode Island court reached a similar conclusion in regard to a 
 statute requiring a notice to terminate a tenancy at sufferance, and 
 held that the expression was used in its technical sense. Durfee, C. J., 
 comments on the New York cases as follows: "We are aware that 
 there are cases in ^N'ew York that refuse to give to the words 'tenant at 
 sufferance,' used in a N'ew York statute similar to ours, their strict 
 technical meaning, and hold that a person who, having come in by 
 
 ===Meno v. Hoeffel, 46 Wis. 282, 1 tional relation of landlord and ten- 
 
 N. W. 31. ant exists, and applies, so far as 
 
 ^=« Bennett v. Robinson, 27 Mich, tenancies by sufferance are con- 
 
 26. The Michigan court comments cerned, only to that particular class 
 
 on the New York cases as follows: of them which arises from holding 
 
 "The New York statutes are very over after the expiration of a lease 
 
 different from our own in respect or term, and (by special provision) 
 
 to the tenancies by sufferance to to lands sold on execution," citing 
 
 which these special proceedings are Sims v. Humphrey, 4 Denio. (N. Y.) 
 
 made applicable. The proceeding 185. 
 
 is there confined to those classes of '^ Kinsley v. Ames, 2 Mete, 
 
 cases where tenancies by sufferance (Mass.) 29, 31, per Shaw, J. 
 or otherwise, in which the conven- 
 
 II
 
 275 STATUTOBY PKOVISIONS. [§§ 231, 232 
 
 right, holds over after the expiration of his estate is not a tenant at 
 sufferance so as to be entitled to notice to quit under said New York 
 statute, until he has held over so long or under such circumstances as 
 evince assent thereto on the owner's part. The trouble with these cases 
 is they ignore the difference between a tenancy by sufferance and a 
 tenancy at will, since a person who so occupies with the owner's con- 
 sent is technically a tenant at will."^^^ 
 
 VI. Statutory Provisions. 
 
 § 231. California. — "In all cases of tenancy upon agricultural 
 lands, where the tenant has h,eld over and retained possession for more 
 than sixty days after the expiration of his term, without any demand 
 of possession or notice to quit by the landlord, he shall be deemed to 
 be holding by the permission of the landlord, and shall be entitled to 
 hold, under the terms of the lease, for another full year ; . . . and 
 such holding over for the period aforesaid shall be taken and construed 
 as a consent, on the part of the tenant, to hold for another year."^^*' 
 
 § 232. Connecticut. — "No holding over by any lessee, after the 
 expiration of the term of his lease, shall be evidence of any agreement 
 for a further lease ; and parol leases of lands or tenements reserving a 
 monthly rent, and in which the time of their termination is not agreed 
 upon, shall be construed to be leases for one month only."^^^ Before 
 this statute, a tenant under a lease for one year holding over was re- 
 sponsible for another term on the same conditions.^^* Under this 
 statute, mere holding over is no evidence of a new lease, and the court 
 correctly charged the jury that they must be satisfied from other evi- 
 dence, showing a meeting of the minds of the parties, before they could 
 find a new lease for another year.^^^ This act does not, however, do 
 away with tenancies from month to month. ^'''* To constitute such a 
 tenancy under this section, three things are requisite : a parol lease, a 
 monthly rent, and no agreed time for the termination of the lease.^^^ 
 The effect of this statute is not to do away with year to year tenancies 
 
 '"Johnson v. Donaldson, 17 R. I. ^=° Miller v. Lampson, 66 Conn. 
 
 107, 108, 20 Atl. 242, citing Moore 432, 34 Atl. 79. 
 
 V. Morrow, 28 Cal. 551, 554; and =«" Corbett v. Cochrane, 67 Conn. 
 
 Allen V. Carpenter, 15 Mich. 25. 570, 35 Atl. 509; Miller v. Lampson, 
 
 ^'^''Code Civil Procedure, § 1161. 66 Conn. 432, 34 Atl. 79. 
 
 =" General St. 1902, § 4043. =="' Corbett v. Cochrane, 67 Conn. 
 
 '^ Bacon v. Brown, 9 Conn. 335, 570, 35 Atl. 509.
 
 §§■ 233, 234] KINDS OF tenancy. 276 
 
 entirely. Where a lessee took possession under a parol lease for three 
 years, it created a tenancy at will which by implication was held to be 
 a tenancy from year to year, and the terms of the special contract 
 would govern the rights of the parties.^*^- Under the second clause in 
 the statute, a lease by parol reserving a monthly rent does not neces- 
 sarily become a lease from month to month. Such is not the statute. 
 To be a lease for a month only, three things must concur: the lease 
 must be by parol, a monthly rent reserved, and the time of termination 
 must not be agreed upon. A lease running for a fixed time could not 
 well be considered one which had no agreed time of termination 
 within the fair intent and meaning of the statute. A parol lease for 
 a certain number of years creates a tenancy at will, which by impli- 
 cation is held to be a tenancy from year to year.^®^ 
 
 § 233. District of Columbia. — "A tenancy at will must be created 
 by express contract and occupation; possession and holding of any 
 messuage or real estate without such express contract or lease, or by 
 such contract or lease which has expired, shall be tenancies by suffer- 
 ance." "Tenancies at will may be terminated by thirty days' written 
 notice to quit. . . ."^^^ The original act upon which these sections 
 are based was passed in 1864, and received judicial interpretation soon 
 after its passage. The effect of the act seems to have been to abolish 
 the doctrine of year to year tenancy which had previously been the 
 law. Mere wrongful holding over did not create a tenancy at suffer- 
 ance or entitle the tenant so holding over to any notice to quit. A 
 holding over by implied consent of the landlord made the tenant a 
 tenant at sufferance.^^^ 
 
 § 234. In Delaware it is provided by statute that "where no term 
 is expressly limited, a demise shall be construed to be for a year, ex- 
 cept of houses and lots usually let for a less time."^®^ Under this 
 statute a letting without any lease or agreement in writing of prem- 
 ises for fifty dollars a year for the purpose of erecting a distillery upon 
 them by the lessee was held to constitute a renting for a year.^®^ The 
 tenant is liable for a year's rent by force of the statute, even though, 
 he remains in possession only part of the year. In the action for use 
 
 ^'=Corbett v. Cochrane, 67 Conn. ^^ Spalding v. Hall, 6 D, C. 123. 
 570, citing Larkin v. Avery, 23 '" Laws of Delaware 1893, ch. 120, 
 
 Conn. 304. § 2. 
 
 ^ Corbett v. Cochrane, 67 Conn. ^^ Humphries v. Smith, 4 Houst, 
 
 570, 35 Atl. 509. (Del.) 9. 
 
 ^^Rev. Stat, §§ 680, 681, 
 
 Jl
 
 277 STATUTORY PROVISIONS. [§§ 235, 236 
 
 and occupation, the plaintiff may recover for the whole year, if there 
 be a contract or agreement of tenancy either for a year or for no cer- 
 tain time, although the tenant may not have occupied for all the year. 
 The Delaware acl was only in confirmation of the Stat. 11, Geo. 2, ch. 
 19. Even before it was re-enacted, that statute was, by usage and con- 
 sent, a part of the common law of the state. Under it, if a contract of 
 tenancy be proved, the defendant is liable in use and occupation though 
 he may never have entered into possession.^^^ 
 
 § 235. Georgia. — "Where no time is specified for the termination 
 of a tenancy, the law construes it to be for the calendar year, but if it 
 is expressly a tenancy at will, then either party may terminate it at 
 will."^^*' A landlord may treat a tenant from year to year, who con- 
 tinues to occupy a part of the premises after the end of the term, as a 
 tenant for the ensuing year. And this, too, although the tenant has 
 given proper notice to end the year to year holding, and has attempted 
 to surrender the keys to the landlord. ^'^^ 
 
 § 236. In Indiana it is provided by statute that an estate at will 
 can only be created by express agreement. The same act provides that 
 any holding of real estate for an indefinite term and without a valid 
 written lease shall be construed to be a periodic tenancy.^ ^^ A state- 
 ment in a pleading that a person took possession by consent of a land- 
 owner for an indefinite time is an allegation of a general tenancy, and 
 general tenancies are deemed to be tenancies from year to year. A 
 parol lease for an indefinite period is, with reference to its extent, a 
 lease for a year certain and no more.^" The effect of this is to increase 
 the limits of year to year tenancies and restrict those of month to 
 month periods. An indefinite letting at a monthly rent creates a "gen- 
 eral tenancy," which by force of the statute becomes a tenancy from 
 year to 3'ear.^^* So, where a void lease provided for payment of rent 
 in advance, it was held that occupation by tJie lessee rendered the ten- 
 ancy a valid year to year holding, and that rent could be collected by 
 suit before the end of the first years holding. It is not necessary that 
 there should be a reservation and payment of an annual rent in order 
 
 =«"' Lofland v. Emory, 2 Harr. '" Swan v. Clark, 80 Ind. 57, cit- 
 
 (Del.) 297. ing 2 R. S. 1876, § 2; Burbank v. 
 
 ^■''Code 1895, Vol. II, § 3132. Dyer, 54 Ind. 392; Ross v. Schneider, 
 
 ="Cavanaiigh v. Clinch, 88 Ga. 30 Ind. 423; Schmitz v. Lauferty, 29 
 
 610, 15 S. E. 673. Ind. 400. 
 
 '"= Burns' Ann. Ind. St. 1901, '"Rothschild v. Williamson, 83 
 
 § 7089. Ind. 387.
 
 § 237] KINDS OF TEXAXCY. 278 
 
 to raise the presumption of an implied agreement between the par- 
 ties.^'^ Under the statute in this state, a tenancy in which the prem- 
 ises are occupied by the assent of the landlord without any written or 
 definite verbal agreement, the tenant paying the taxes and such other 
 rent as the landlord requires, is a tenancy from year to year,^^® But 
 it seems that if the tenant holds over after a definite term for a year, 
 that implies a renewal of the agreement, and the holding would come 
 to an end on the expiration of the second year without notice. How- 
 ever, an express agreement between the parties that the tenant should 
 stay as long as they agreed, and give up possession whenever the land- 
 lord wanted it, excludes the application of such a doctrine, and makes 
 the holding either a tenancy from year to year or a tenancy at will. 
 In either case a notice to quit was necessary; and until the proper 
 notice had been given, there was and could be no tenancy by suffer- 
 ance.^^^ 
 
 § 237. In Iowa it is provided that "any person in the possession 
 of real estate with the assent of the owner is presumed to be a tenant 
 at will until the contrary is shown."^^* By force of this statute, a 
 lessee for a term of two years with monthly rent payments holding 
 over becomes a tenant at will rather than a tenant from year to year.^' ^ 
 The presumption obtaining at common law that a party holding over 
 after the expiration of his lease becomes a tenant from year to year is 
 overcome by this statutory provision making him a tenant at will.^*** 
 One in possession with the assent of the owner, in the absence of fur- 
 ther proof, is presumed to be a tenant at will.^*^ The common-law 
 rule that when a tenant for years holds over after the termination of 
 his lease, with the assent of his landlord, and pays rent according to 
 the terms of his lease, a tenancy from year to year is established, is 
 changed by this section of the code. At most it may be said that there 
 is a presumption, which obtains at common law, that by reason of 
 these acts and this conduct of the parties such a tenancy exists. But 
 this is overcome by the statutory presumption, and to overcome the 
 statutory presumption an agreement or contract is necessary. In 
 commenting on the statutory provisions, the Supreme Court of the 
 state explained that the rules about year to year tenancies "were devel- 
 
 ="= Nash V. Berkmeir, 83 Ind. 536. ^ O'Brien v. Troxel, 76 Iowa 760, 
 
 "'Ross V. Schneider, 30 Ind. 423. 40 N. W. 704; German State Bank 
 
 ^" Coomler v. Hefner, 86 Ind. 108. v. Herron, 111 Iowa 25, 82 N. W. 
 
 '" Iowa Code, §§ 2014, 2991. 430. 
 
 "° O'Brien v. Troxel, 76 Iowa 760, ^" Fischer v. Johnson, 106 Iowa 
 
 40 N. W. 704. 181, 76 N. W. 658.
 
 279 STATUTORY PROVISIONS. [§' 338 
 
 oped when agriculture was the main pursuit, and before other interests 
 had assumed their present importance. While the statute still protects 
 those in possession of land for the purposes of cultivation, it also 
 affords protection to the owners and tenants of other property."^ ®^ 
 The protection referred to is the statutory provision that "in case of 
 tenants occupying and cultivating farms, the notice must fix the ter- 
 mination of the tenancy on the first of March."^^^ 
 
 A person in possession not recognizing the owner as landlord cannot 
 be regarded as a tenant at will.^^* 
 
 § 238. In Kentucky it is provided that a tenant for a fixed term 
 of a year or more, to expire on a certain day, shall abandon the prem- 
 ises on that day, unless by express contract he secures the right to 
 remain longer. If without such contract the tenant holds over, he does 
 not acquire any rights for ninety days, and may be expelled without 
 notice. After the lapse of ninety days without the institution of pro- 
 ceedings, the tenant acquires a right to remain a year, and is under an 
 obligation to do so. At the end of such a year of holding, the condi- 
 tions as to holding over are the same. In case the original term was 
 for less than a year, the periods are shortened from ninety to thirty 
 days and from a year to sixty days.^^^ It was maintained that this sec- 
 tion of the statute gave the landlord, when the tenant held over, the 
 period of ninety days in which to determine whether he would regard 
 the tenancy as continuing for another year or term, and, the deter- 
 mination of this question being alone with him, he could eject the 
 tenant without notice at any time within the ninety days, or compel 
 him to retain the possession. But the court held that such was not a 
 proper construction of the statute. The section is for the protection of 
 both landlord and tenant. The tenant may abandon the premises 
 within the ninety days next succeeding the expiration of the term, and 
 is not liable for a longer period than he holds. He is a tenant by suf- 
 ferance for ninety days, and may be evicted without notice if action 
 is taken within that time. If permitted to remain longer than the 
 ninety days, his tenancy is regulated by the original contract.^^*^ 
 Neither the mere belief on the part of the tenant that he is to continue 
 nor the implied understanding alone is sufficient to defeat the land- 
 lord's rights. If, however, the landlord, without objection, permits the 
 
 '«= German State Bank v. Herron, ^'^ Ky. St. 1899, § 2295; Ky. St. 
 
 Ill Iowa 25, 82 N. W. 430. 1903, §§ 2295, 2296. , 
 
 '^'Code, § 2991. - '^Mendel v. Hall, 13 Bush (Ky.) 
 
 ''' Martin v. Knapp, 57 Iowa 336, 232. 
 10 N. W. 721.
 
 §§ 239, 240] KINDS OF TEXAXCY. 280 
 
 tenant to make arrangements to retain possession for another year, 
 and to make expenditures under the belief that he is to remain, that 
 belief being induced by the conduct of the landlord, the right of the 
 landlord to adopt the remedy provided by the statute will be denied 
 him.^^^ An actual agreement for a further yearly term may be in- 
 ferred from a shorter period of holding over. This was done where 
 rent was payable monthly and the agreement was that when the lessee 
 started out on one year he became a renter for that year.^** 
 
 § 239. In Maine it is provided that "there can be no estate created 
 in lands greater than a tenancy at will, and no estate in them can be 
 granted, assigned or surrendered unless by some writing signed by the 
 grantor or maker, or his attorney."^^*^ The effect of this section must 
 be regarded as reducing what would otherwise be a tenancy from year 
 to year to a tenancy at will. In this respect the local law follows the 
 law of Massachusetts, and for a lessee to hold over two years after the 
 expiration of his term would constitute him a tenant at will only.^^° 
 A verbal lease of real estate at an annual rent creates under this 
 statute only an estate at will. It results, as incident to an estate at 
 will, that it may be determined at the will of either party ; neither is 
 required to give notice.^^^ A lessee under a written lease who holds 
 over might, however, be clothed with greater rights by special stipula- 
 tions in the lease. So, where one held under a former lease that gave 
 liim the right to perpetual possession until certain conditions relating 
 to the purchase of the property should be complied with, the terms of 
 the new lease would not be construed as an abandonment or waiver of 
 his antecedent rights. The very terms of the original lease implied a 
 continued tenancy until the tenant shall be repaid his authorized out- 
 lay whereby an idle site was converted into valuable property.^^^ 
 
 § 240. In Massachusetts there has never been any recognition of 
 periodic tenancies. In the early case settling this rule,^''^ it was said 
 that the year to year holding originated before the statute of frauds. 
 Its continuance after the passage of that act was made possible by the 
 exception in favor of short term parol leases in the English statute of 
 
 ^'Irvine v. Scott, 85 Ky. 260, 3 ^'^ Withers v. Larrabee, 48 Me. 
 
 S. W. 163. 570; Davis v. Thompson, 13 Me. 209. 
 
 ^^ linger v. Bamberger, 85 Ky. 11, ^^- Franklin Land &c. Co. v. Card, 
 
 2 S. W. 498. 84 Me. 528, 24 Atl. 960. 
 
 ^'^'Rev. St., ch. 75, § 13. =^^ Ellis v. Paige, 1 Pick. (Mass.) 
 
 "^Bennock v. Whipple, 12 Me. 43. 
 346; Wheeler v. Cowan, 25 Me. 283.
 
 281 STATUTORY PROVISIONS. [§' 2-il 
 
 frauds. The omission of this exception in the Massachusetts act 
 showed clearly the intention of the legislature to place all parol leases 
 on the same footing. At first a lease without limitation of time, and 
 with the limitation of an annual rent, was considered as a lease for a 
 year certain. Then followed tenancies from year to year which could 
 not be determined without six months' notice to quit. Wilde, J., con- 
 tinued to trace the history of the doctrine as follows : "Thus stood the 
 law at the time the English statute of frauds was penned, and the 
 exception was introduced, no doubt, for the purpose of supporting 
 short parol leases and tenancies from year to year depending on im- 
 plied contracts. But whether this be so or not, it is very clear that the 
 English doctrine respecting tenancies from year to year can only be 
 supported by the exception in the statute, and that by our statute 
 there can be no tenancy from year to year unless by a lease in writing." 
 Even where the different wording of the statute does not have a direct 
 bearing on the result, no tenancy from year to year would be recog- 
 nized in Massachusetts. Thus, a written lease of a house at a certain 
 rent per annum, payable monthly, was to begin upon the completion 
 of a house. Its term was undefined except by a stipulation that lessor 
 could repossess himself of part of it after two years if he wished. 
 This was held to create a tenancy at will merely. Although there was 
 a valid lease for an indefinite period, the presumption that the parties 
 intended a holding from year to year was not implied. The duration 
 of a lease for years must be certain ; this includes both its commence- 
 ment and termination. It may be conceded that a lease for years may 
 begin "when a house is suitable to be occupied," according to the 
 mixim, Id cerium est quod cerium reddi potest. But the fatal objec- 
 tion remains in this case that no period of termination is fixed. A 
 leasehold interest for an uncertain and indefinite term is an estate at 
 will only. After the lessee had entered under this instrument, he could 
 terminate his tenancy in any of the modes provided by statute.^^^ 
 
 § 241. In Michigan the doctrine seems to be that a tenant occupy- 
 ing under a parol lease for a number of years is during the term a 
 tenant from year to year, because a written instrument is necessary to 
 create a valid term for years. But after the expiration of the term the 
 lease is functus officio, and cannot be treated as a void lease. If the 
 rent was payable monthly, the contract of leasing could not be treated, 
 after the expiration of five years, in any other manner than as a ten- 
 ancy or lease from month to month.^'''^ The apparent reason for this 
 
 '^Murray v. Cherrington, 99 '"= Barium v. Berger, 125 Mich. 
 Mass. 229. 504, 84 N. W. 1070.
 
 § 242] KINDS OF TENANCY. 282 
 
 is because the act regarding notice to quit provides that the time of 
 such notice shall be sufficient if it be equal to the interval between the 
 times for payment of rent.^''® 
 
 § 242. In Missouri the line between month to month and year to 
 year tenancies has been defined by statute.^^'^ The Court of Appeals 
 thought this statute did not apply where buildings are not let eo 
 nomine, and it did not appear that they were the essential object of the 
 letting, even though the premises were within the limits of a town. 
 They argued that "it is a notorious fact that most farms have buildings 
 upon them, and a fact no less notorious that many farms are situated 
 within the limits of this city, and probably within the limits of many 
 towns and villages in this state. To interpret the law to make the 
 tenure of such farms, where a yearly tenant holds over, one from month 
 to month would be neither within the spirit nor the letter of the 
 law."^^^ The leased property in this case was a park or ornamental 
 estate not used for agricultural purposes. On appeal the decision of the 
 court below was reversed by the Supreme Court. The grounds for 
 this conclusion were stated to be that "the statute makes no exception, 
 and we are authorized to make none ; we shall obey its commands. We 
 do not propose by fine-spun distinctions to sanction the creation of 
 leases which that statute in such plain terms forbids. Should we do 
 so we would be but following that unfortunate precedent set by the 
 English courts whereby they frittered away the wholesome provisions 
 of the statute of frauds and allowed parol agreements and part per- 
 formance for that which the law said should be put down in black and 
 white." The court expressly reserves its opinion as to a case where 
 land within the limits of a town or city was used for farming pur- 
 poses.^^^ Before the decision in the park case had been reversed on 
 appeal, the lower court commented favorably upon its interpretation 
 of the statute and decided a case in reliance on it. Where the build- 
 ings on the demised premises were erected by the lessee and owned by 
 him, the lease was of the ground alone, and the statute under discussion 
 
 ^^ Comp. Laws 1897, § 9257. ties shall be tenancies from month 
 
 ^"Mo. Rev. St. 1899, § 410 (R. S. to month and may be terminated 
 
 1889, §6371). A portion of this sec- by one month's notice." 
 
 tion reads: "All contracts or agree- =**' Withnell v. Petzold, 17 Mo. 
 
 ments for the leasing, renting or App. 669. 
 
 occupation of stores, shops, etc., in ^^^ Withnell v. Petzold, 104 Mo. 
 
 cities, towns, and villages not made 409, 16 S. W. 205, reversing 17 App. 
 
 in writing and signed by the par- 669.
 
 283 STATUTORY PROVISIONS. [§§' 343, 244 
 
 would not apply.*"" Such a conclusion might very well have been 
 reached, however, even under the interpretation of the statute as de- 
 clared by the Supreme Court. An oral letting of a farm at the will 
 of the lessor creates a tenancy from year to year and is terminable by 
 the lessor upon sufficient notice,*"^ but it cannot be determined with- 
 out notice. However, a mere cropper who is without any interest in 
 or possession of premises, and who has merely tilled the ground and 
 harvested the crops after an entry for the sole purpose of so doing, is 
 not entitled to notice.*"^ By virtue of the landlord and tenant statute 
 a parol agreement to rent for the certain period of two weeks and 
 longer, until the happening of a certain event, was held to create a 
 tenancy from month to month which could only be ended by a month's 
 notice to quit. The premises were buildings in a city.'*"^ For the 
 same reason a void lease to begin in futuro has been held to create a 
 month to month tenancy requiring a notice to quit.'*"* 
 
 Where a tenant was holding as a tenant from year to year during 
 the year when the statute became a law, the act was nevertheless held 
 to apply and change the holding for the ensuing year into one from 
 month to month, the premises being within an incorporated town.*"^ 
 
 § 243. Nevada. — "In all leases of lands or tenements or any in- 
 terest therein for a month or any term less than a year, if the tenant 
 holds over his term by consent of his landlord the tenancy shall be con- 
 strued to be a tenancy from month to month, or a tenancy for such 
 term less than a year, as the case may be.''*"^ 
 
 § 244. In New Hampshire the form of the statutory provision is 
 that "every tenancy or occupancy shall be deemed to be at will, and 
 the rent payable upon demand, unless a different contract is shown."*"' 
 The effect of this act is to change the presumption in force at common 
 law that every tenancy at will was a tenancy from year to year. In 
 New Hampshire but little property being in fact held by tenants, ex- 
 cept buildings in cities and towns, which are not usually let for long 
 periods without written leases, a different rule of presumption is intro- 
 duced by statute, and every tenancy is presumed to he a lease at will 
 
 '""Delaney v. Flanagan, 41 Mo, ^»' Smith v. Smith Bros., 62 Mo. 
 
 App. 651. App. 596. 
 
 ^''i Tiefenbrun v. Tiefenbrun, 65 ■«« Winters v. Cherry, 78 Mo. 344. 
 
 Mo. App. 253. ■">= Hammon v. Douglas, 50 Mo. 
 
 *°- Davies v. Baldwin, 66 Mo. App. 442. 
 
 577. ^'"'Comp. Laws 1900, §§ 3827, 3838. 
 
 ""Pub. St. 1901, ch. 246, § 1.
 
 §§ 245-247] KINDS OF tenancy. 284 
 
 with the rent payable on demand.*"^ It is not understood, however, 
 that this provision affects in any way the rules of evidence at common 
 law as to the nature of the tenancy, except by changing the burden of 
 proof and making it incumbent on the tenant to show a tenancy from 
 time to time. It will still be inferred, as at common law, that the 
 tenancy is from year to year, from the fact that the original letting 
 from which the tenant has held over was from year to year. And it 
 will be inferred that a tenancy is from quarter to quarter or from 
 month to month from the fact that the rent has been paid quarterly 
 or monthly. The same is true of any other circumstance from which 
 the term of the tenancy may be inferred.*''^ 
 
 § 245. New York. — An agreement for the occupation of real prop- 
 erty in the city of New York for an indefinite period shall be deemed 
 to continue until the first day of May next after the possession com- 
 mences. Eent is payable at the usual quarter day for the payment of 
 rent in that city unless otherwise expressed in the agreement.*^" 
 
 § 246. Oklahoma Territory. — When rent is reserved payable at 
 intervals of three months or less, the tenant shall be deemed to hold 
 from one period to another, equal to the intervals between the days of 
 payment, unless there is an express contract to the contrary. When 
 a tenant holds over with the assent of his landlord after a letting for 
 one or more years he is to be deemed a tenant from year to year. In 
 other cases a person in possession of yeal property with the assent of 
 the owner is presumed to be a tenant at will till the contrary is 
 shown.* ^^ 
 
 § 247. In Rhode Island the usual common law doctrine in regard 
 to tenancies from year to year is in force. The rule is not affected by 
 the statutory provision to the effect that "the time agreed upon in a 
 definite letting shall be the time of the termination thereof for all pur- 
 poses ; and if there be no time of termination agreed upon it shall be 
 deemed a letting from year to year."*^^ This statute, as the court 
 construed it, applied only where the letting was definite — that is to say, 
 definite at least except in regard to duration. The statute was held 
 not to cover a case where there was no definite letting, but only a per- 
 missive occupation without terms.*" 
 
 *»»Hazeltine v. Colburn, 31 N. H. ^» Rev. St. 1903, §§ 3320-3322. 
 
 466. '^ Gen. St., cap. 221, § 5. 
 
 *"» Currier v. Perley, 24 N. H. 219. "'Johnson v. Johnson, 13 R. I. 
 
 "" Gen. Laws 1901, ch. 46, Art. 6, 467, in the words of Durfee, C. J. 
 § 202.
 
 285 STATUTORY PROVISIONS. [§§ 248, 249 
 
 § 248. South Carolina. — The early acts in this state did not alter 
 the common law in relation to tenancies from year to year, and the 
 necessity of notice to quit before the tenancy can be determined, either 
 by the landlord or the tenant."*^* In addition to the statute of frauds 
 in this state it is provided in the landlord and tenant act that "N'o 
 parol lease shall give a tenant a right of possession for a longer term 
 than twelve months from the time of entering on the premises ; and all 
 such leases shall be understood to be for one year, unless it be stipu- 
 lated to be for a shorter term."*^° One effect of this section is to pre- 
 vent the application of any doctrine of part performance to render 
 valid a parol lease for more than one year.*^^ After the termination 
 of the first year of the holding, the tenant remaining in possession is 
 a tenant at will merely. The tenant has no right to claim a term in 
 the premises for the second 3'ear, but can be evicted on proceedings 
 begun after ten days' notice.*^' But it seems that this tenancy at will 
 arising from the continued possession after the expiration of the first 
 year might become a tenancy from year to year which could only be 
 terminated by three months' notice to quit.*^^ It is just as reasonable 
 to adopt this conclusion in such a case as to hold that a term for a year 
 created by a valid instrument in writing becomes a tenancy from year 
 to year from the continued occupation of the tenant.*^^ 
 
 § 249. In Washington there are the following provisions in regard 
 to periodic tenancy : "In all cases where real property is leased for a 
 specified term or period by express or implied contract, whether writ- 
 ten or by parol, the tenancy shall be terminated without notice at the 
 expiration of such specified term or period." In all cases of tenancy 
 upon agricultural lands, where the tenant has held over and retained 
 possession for more than sixty days after the expiration of his term 
 without any demand or notice to quit, ... he shall be deemed to be 
 holding by permission, . . . and shall be entitled to hold under the 
 terms of the lease for another full year, and shall not be guilty of an 
 unlawful detainer during said year, and such holding over for the 
 period aforesaid shall be taken and construed as a consent on the part 
 of a tenant to hold for another year."''-*^ Under the sections quoted, 
 when tenants held for more than sixty days without demand or notice 
 
 "*Godard v. South Carolina R. "« Godard v. South Carolina R. 
 
 Co., 2 Rich. L. (S. Car.) 346. Co., 2 Rich. L. (S. Car.) 346. 
 
 "= Civ. Code 1902, § 2416. "" State v. Fort, 24 S. Car. 510. 
 
 «' State v. Mays, 24 S. Car. 190. *" Bal. Code, §§ 5527, 5528. 
 
 "'Hillhouse v. Jennings, 60 S. 
 Car. 392, 38 S. E. 596.
 
 § 250] KINDS OF TENANCY. 286 
 
 to quit they were then entitled to hold for another year. This same 
 condition arose at the expiration of the next year. An oral or written 
 demand for the premises within sixty days after the expiration of any 
 year, or any notice prior to the end of the year that the lease would he 
 terminated was sufficient to authorize the bringing of an action of 
 forcible detainer.*^^ A letting for an indefinite time, with monthly 
 or other periodic rent reserved, creates a tenancy from month to month 
 or from rent day to rent day, and may be terminated by thirty days' 
 notice preceding the end of any of said periods.*^^ 
 
 The fact that without any agreement for a change in the original 
 tenancy the tenant began paying rent for quarterly periods, which was 
 accepted at his own request and for his own accommodation, would not 
 operate to change a tenancy from month to month into one for quar- 
 terly periods.*^^ 
 
 "Whenever any person obtains possession of premises without the 
 consent of the owner or other person having the right to give said pos- 
 session, he shall be deemed a tenant by sufferance merely, and shall be 
 liable to pay reasonaljle rent for the actual time he occupied the 
 premises, and shall forthwith, on demand, surrender his said possession 
 to the owner or person Avho had the right of possession before said 
 entry, and all his right to possession of said premises shall terminate 
 immediately upon said demand."*''* 
 
 § 250. Wyoming. — It is provided that there shall not exist any 
 tenancy by implication or operation of law except a tenancy by suffer- 
 ance. Upon the expiration of a term, there is no implied renewal of 
 the same either by the tenant holding over or by the landlord accepting 
 rent for such period of holding over. Such holding over shall consti- 
 tute only a tenancy at sufferance, with the rights, duties, obligations 
 and incidents of such tenancy. jSTo tenancy other than that by suffer- 
 ance shall exist after the termination of the original lease unless 
 created by express contract in writing.*^^ 
 
 *^ Mounts V. Goranson, 29 Wash. ^"London &e. Bank v. Curtis, 27 
 
 261, 69 Pac. 740. Wash. 656, 68 Pac. 329. 
 
 "-Bal. Code, § 4969; Schreiner v. "^"^ Bal. Code 1897, § 4571. 
 
 Stanton, 26 Wash. 563, 67 Pac. 219. *"' Rev. St. 1899, §§ 2272, 2273.
 
 CHAPTER IV. 
 
 NOTICE TO QUIT. 
 
 1. Necessity for Notice, §§ 251-259. 
 
 2. Sufficiency of Notice, §§ 260-271. 
 
 3. Service of Notice, §§ 272-276. 
 
 4. Statutory Provisions, §§ 277-317. 
 
 I. Necessity for Notice. 
 
 § 251. Notice to quit is necessary to terminate a year to year hold- 
 ing.^ The obligations imposed by a year to year tenancy not only 
 
 ^England: Johnstone v. Huddle- 
 stone, 4 B. & C. 922; Chapman v. 
 Towner, 6 M. & W. 100. California: 
 Sullivan v. Gary, 17 Cal. 80. Con- 
 necticut: Larkin v. Avery, 23 Conn. 
 304. Illinois: Herrell v. Sizeland, 
 81 111. 457. Indiana: Jackson v. 
 Hughes, 1 Blackf. (Ind.) 421. Ken- 
 tucky: Miller v. Shackleford, 4 
 Dana (Ky.) 264; Morehead v. Wat- 
 kyns, 5 B. Mon. (Ky.) 228. Mary- 
 land: Hall V. Myers, 43 Md. 446. 
 Missouri: Ridgely v. Stillwell, 25 
 Mo. 570. New Jersey: Den v. 
 Drake, 14 N. J. L. 523; Den v. Blair, 
 15 N. J. L. 181; Den v. Snowhill, 23 
 N. J. L. 447. New Hampshire: Cur- 
 rier V. Perley, 24 N. H. 219. New 
 York: Jackson v. Salmon, 4 Wend. 
 (N. Y.) 327; Bradley v. Covel, 4 
 Cow. (N. Y.) 349; People v. Paul- 
 ding, 22 Hun (N. Y.) 91. North 
 Carolina: Irwin v. Cox, 5 Ired. L. 
 (N. Car.) 521; Stedman v. Mcintosh, 
 4 Ired. L. (N. Car.) 291. Oregon: 
 Garrett v. Clark, 5 Oreg. 464; Wil- 
 liams v. Ackerman, 8 Oreg. 405. 
 Pennsylvania: Brown v. Vanhorn, 1 
 Binn. (Pa.) 334, n.; Logan v. Her- 
 ron, 8 S. & R. (Pa.) 459; Thomas v. 
 Wright, 9 S. & R. (Pa.) 87; McDow- 
 ell V. Simpson, 3 Watts (Pa.) 129. 
 South Carolina: Godard v. South 
 
 Carolina R. Co., 2 Rich. L. (S. Car.) 
 346; Floyd v. Floyd, 4 Rich. L. 
 (S. Car.) 23. Rhode Island: 
 Thurber v. Dwyer, 10 R. I. 355. 
 Vermont: : Hanchet v. Whitney, 1 
 Vt. 311; Hall v. Wadsworth, 28 Vt. 
 410; Boudette v. Pierce, 50 Vt. 212. 
 Notice to quit generally. The doc- 
 trine of notice to quit is very old. 
 It is founded on such evident prin- 
 ciples of right, that the courts at the 
 earliest times recognized its justice, 
 and required notice to terminate 
 certain tenancies. The object was to 
 protect the tenant more fully from 
 the arbitrary will of the lessor and 
 also to save the lessor from loss by a 
 too sudden determination of the 
 tenancy by the tenant, the requisite 
 notice being mutual. As leases be- 
 came more free, the courts, follow- 
 ing the liberal policy which had first 
 dictated notice, extended the rule so 
 as to include tenancies not falling 
 within the original rule. The rights 
 of both parties have been the better 
 secured by this wise course of de- 
 cision, and tenancies which were at 
 one time entirely dependent upon 
 the will of either party have been 
 changed from precarious tenures to 
 fixed and stable holdings. In the 
 American states the tendency of 
 
 287
 
 §• 252] NOTICE TO QUIT. 288 
 
 precluded the tenant from leaving during the year without being 
 liable for the full year's rent, but also prevented him from vacating 
 at the end of the year unless he gave proper notice of his intention to 
 do so and thus relieved himself from the responsibility of paying 
 rent for the ensuing year. The obligation was to give notice before 
 the expiration of that or of any succeeding year.^ Thus, where a 
 year to year tenant vacated at the end of tlie year, but allowed his 
 sub-tenant to continue in occupation for one entire year and a por- 
 tion of another, the principal tenant was held liable for the full two 
 years' rent.^ "The ancient rule of the common law required that the 
 notice, when necessary and not otherwise limited by agreement of the 
 parties, should be for half a year or six calendar months expiring 
 at the end of the current year of the tenancy; and that a notice at 
 any other period, sooner or later, will not be sufficient."* 
 
 § 252. In the United States the len^h. of notice depends almost 
 entirely on statute. Some of the states have followed the English 
 rule as to the length of notice but in most the length of the notice 
 has been shortened to three months. A statute providing for three 
 months' notice to terminate estates at will was held to apply to ten- 
 ancies from year to year. In the latter case it was held that the 
 three months must terminate at the end of the year.^ In Ohio a dis- 
 tinction has been made between those tenancies from year to year 
 from which the rule requiring notice to quit had its origin, and those 
 arising from a holding over by the tenant after the expiration of a 
 lease for a specified term. In each year of occupancy under the 
 former there is, it is said, a growing interest in the ensuing year 
 springing out of the original contract. While in the latter case a 
 
 legislation has been to enlarge the 161, quoted in Roberson v. Simons, 
 
 common law doctrine, but with the 109 Ga. 360, 34 S. E. 604. 
 
 exceptions of the additions made ' Roberson v. Simons, 109 Ga. 360, 
 
 and a few changes in the form of the 34 S. E. 604. 
 
 notice, its length, etc., it remains as * Den v. Drake, 14 N. J. L. 523, per 
 
 it was before. The doctrine of no- Hornblower, C. J. To same effect 
 
 tice to quit is one that is peculiar see Hall v. Myers, 43 Md. 446; 
 
 to the relation of landlord and ten- Critchfield v. Remaley, 21 Neb. 178, 
 
 ant, and belongs entirely to it. It 31 N. W. 687; Den v. Blair, 15 N. J. 
 
 sprung up to alleviate the hardships L. 181; Hanchet v. Whitney, 1 Vt. 
 
 that arose from that relationship, 311; Sartwell v. Sowles, 72 Vt. 270, 
 
 and has been strictly confined to its 48 Atl. 11; Brown v. Kayser, 60 Wis. 
 
 original use.— Am. Dec. 125. Note 1, 18 N. W. 523. 
 
 by A. C. Freeman. ^ Hunter v. Frost, 47 Minn. 1, 49 
 
 ^ Right V. Darby, 1 Term R. 159, N. W. 327. 
 
 I
 
 289 NECESSITY FOR NOTICE. [§ 253 
 
 new contract arises each year of the holding by implication from the 
 conduct of the parties. As the assent of both parties is necessary to 
 the creation of this new contract at the beginning of each year, it is 
 obvious that if the tenant chooses not to hold over, and vacates the 
 premises at the end of any year, the tenancy ceases without liability 
 for rent for the ensuing year, though no notice of his intention to re- 
 move be given, as certainly as it does upon the expiration of a lease 
 expressly made for a specific term. The holding over after the end 
 of any year without the landlord's consent, is equivalent to holding 
 over after the expiration of a lease for a specific term.*^ 
 
 § 253. At common law a tenant from month to month must gfive 
 thirty days' notice of his intention to vacate,' and unless he does 
 he will be liable for a month's rent after he does actually vacate.^ 
 In a tenancy from week to week, a full week's notice is certainly suffi- 
 cient; and in a tenancy from month to month, a full month's notice 
 was of course sufficient.^ It has even been queried whether a notice 
 for one-half week or one-half month would not be sufficient.^" In 
 regard to this difference it was said in a recent case:^^ "By strict 
 relativeness, the rule of a half-year's notice in tenancies from year to 
 year would only require a half-month's or a half-week's notice in 
 cases of monthly or weekly tenancies. The briefness of the latter and 
 the length of the former kind of tenancies, was the probable reason 
 why the rule was not uniform." 
 
 The requirement for notice may be affected by the stipulations of 
 the agreement under which the month to month tenancy arose. Thus 
 no notice to quit was necessary where the receipts for rent given the 
 tenant every month provided that "this term of hiring and letting 
 is for one month only and will expire as aforesaid."^ ^ Though it 
 was called a tenancy from month to month, it was in effect a series 
 of separate leases for terms of one month each. A provision that the 
 
 " Gladwell v. Holcomb, 60 Ohio St. « Donohue v. Chicago &c. Co., 37 
 
 427, 54 N. E. 473, citing Alexander v. 111. App. 552. 
 
 Harris, 4 Cranch (U. S.) 298. "Doe v. Hazell, 1 Esp. 94; Doe v. 
 
 ' Stewart v. Murrell, 65 Ark. 471, Raffan, 6 Esp. 4. 
 
 47 S. W. 130; Donohue v. Chicago ^" Jones v. Willis, 8 Jones (N. 
 
 &c. Co., 37 111. App. 552; Steffens v. Car.) L. 430. 
 
 Earl, 40 N. J. L. 128, 133; People v. "Stewart v. Murrell, 65 Ark. 471, 
 
 Darling, 47 N. Y. 666; Shipman v. 47 S. W. 130, per Hughes, J. To 
 
 Mitchell, 64 Tex. 174; Utah Loan &c. same effect see Prescott v. Elm, 7 
 
 Co. V. Garbutt, 6 Utah 342, 23 Pac. Cush. (Mass.) 346. 
 
 "^58. '-Gibbons v. Dayton, 4 Hun (N. 
 
 Y.) 451. 
 Jones L. & T.— 19
 
 § 354] NOTICE TO QUIT. 290 
 
 landlord might have the premises for his own use when he wanted 
 them, would also do away with the necessity for notice.^' 
 
 § 254. A written notice to terminate a tenancy strictly at will or 
 by sufferance was not required at common law, and is not now neces- 
 sary except when the statute so requires it.^* At common law, a ten- 
 ant at sufferance was not entitled to any notice to quit.^^ He had no 
 estate in the premises. He was merely not a trespasser, and the land- 
 lord could, without ceremony, at any time enter and put him out.^® 
 The possession of tenants at sufferance is wrongful and they would 
 not he entitled to notice to quit prior to the institution of an action 
 of ejectment.^^ Mere holding over after the end of a specified term 
 does not entitle a tenant to notice. There must be circumstances from 
 which the court can imply a new agreement for a further holding.^® 
 
 A tenant at sufferance would, however, be entitled to reasonable 
 time to remove himself, his famUy and goods, and to remain or enter 
 for that purpose, without being deemed a trespasser. Where the 
 premises were the lower floor of a tenement house, forty-eight hours 
 were enough for this purpose.^^ After the party by right entitled to 
 possession against a tenant at sufferance had obtained it peaceably, 
 two days was sufficient time for the tenant to remove effects con- 
 sisting of a stock of groceries.^" But where the notice required a 
 tenant to quit on a specified day, it was held that an action to recover 
 possession brought on that day was premature.^^ 
 
 The interest of a tenant who was strictly a tenant at wilP'^ could at 
 common law be terminated at any time by either party without any 
 previous notice to quit.-^ It was only necessary to give the tenant 
 
 " People V. Schackno, 48 Barb. (N. " Pratt v. Farrar, 10 Allen (Mass.) 
 
 Y.) 551, 519; Hooten v. Holt, 139 Mass. 54, 29 
 
 "Guvernator v. Renin, 66 N. J. L. N. E. 221; Wardell v. Etter, 143 
 
 114, 48 Atl. 1023. Mass. 19, 8 N. E. 420. 
 
 " Hauxhurst v. Lobree, 38 Cal. ^ Arnold v. Nash, 126 Mass. 397. 
 
 563; Emerick v. Tavener, 9 Grat. -^Decker v. McManus, 101 Mass. 
 
 (Va.) 220; Peters v. Balke, 170 111. 63. 
 
 304, 48 N. E. 1012; Wamsganz v. -See supra, § 194. 
 
 Wolff, 86 Mo. App. 205; Kinsley v. "^California: Blum v. Robertson, 
 
 Ames, 2 Mete. (Mass.) 29; Hollis v. 24 Cal. 127. Colorado: Crane v. An- 
 
 Pool, 3 Mete. (Mass.) 350; Doe v. drews, 6 Colo. 353. Maine: Davis 
 
 Thomas, 6 Exch. 854, 857; Pinhorn v. Thompson, 13 Me. 209; Moore v. 
 
 V. Souster, 8 Exch. 763, 772. Boyd, 24 Me. 242; Withers v. Larra- 
 
 '« Wheeler v. Wood, 25 Me. 287. bee, 48 Me. 570; Esty v. Baker, 50 
 
 " McClung V. Echols, 5 W. Va. 204. Me. 325. Massachusetts: Ellis v. 
 
 ^^Calderwood v. Brooks, 28 Cal. Paige, 1 Pick. (Mass.) 43. Missouri: 
 
 151. Grant v. White, 42 Mo. 285. New
 
 291 NECESSITY FOR NOTICE. [§' 355 
 
 a reasonable time to remove his effects. 'Tenant at will/' says Little- 
 ton, "is where lands or tenements are let by one man to another, to 
 have and to hold to him at the will of the lessor, by force of which 
 lease the lessee is in possession. In this case the lessee is called ten- 
 ant at will, because he hath no certain or sure estate, for the lessor 
 may put him out at what time it pleaseth him."^* 
 
 § 255. When there is a valid lease for a time certain, no notice to 
 quit is necessary to terminate it, for the parties know when the term 
 ends.^^ This universal rule of the common law has been recognized 
 by declaratory statutes in many codes and statutes. With the single 
 exception of Delaware the doctrine prevails throughout all the states 
 of the union, modified slightly in a few cases, however, by the stat- 
 utes regarding actions for the recovery of possession of land. If 
 there is a valid lease for a fixed time, the tenant is bound to sur- 
 render possession at the end of the term without regard to covenants 
 to that effect in the instrument of demise.^*' So, in case a lease fixes 
 the time for the expiration of the term, and provides that the tenant 
 shall restore possession of the demised premises, the duty of the ten- 
 ant to yield up the possession will not be dependent upon a demand 
 of possession or upon any proceeding to be taken or thing done by 
 
 York: Jackson v. Livingston, 3 184; Pierson v. Doe, 2 Ind. 123; Chi- 
 
 Johns. (N. Y.) 455. North Carolina: cago &c. R. Co. v. Perkins, 12 Ind. 
 
 Humphries v. Humphries, 3 Ired. L. App. 131; Myerson v. Neff, 5 Ind. 
 
 iN. Car.) 362. Pennsylvania: Over- 523; Layman v. Throp, 11 Ind. 352; 
 
 deer v. Lewis, 1 W. & S. (Pa.) 90. McClure v. McClure, 74 Ind. 108. 
 
 Vermont: Rich v. Bolton, 46 Vt. 84. Kentucky: Barlow v. Bell, 4 Bibb 
 
 England: Keech v. Hall, 1 Dougl. (Ky.) 106. Maine: Lithgow v. 
 
 21; Doe v. McKaeg, 10 B. & C. 721; Moody, 35 Me. 214; Clapp v. Paine, 
 
 21 E. C. L. 304. 18 Me. 264; Preble v. Hay, 32 Me. 
 
 -^ Litt, § 68. 456. Missouri: Stephens v. Brown, 
 
 =' Arizona: Rev. St. of Ariz. 1901, 56 Mo. 23; Young v. Smith, 28 Mo. 
 
 § 2694. California: Kuhn v. Smith, 65. New York: Smith v. Littlefield, 
 
 125 Cal. 615, 58 Pac. 204; Canning v. 51 N. Y. 539. Pennsylvania: Evans 
 
 Fibush, 77 Cal. 196, 19 Pac. 376; v. Hastings, 9 Pa. St. 273. Texas: 
 
 McKissick v. Ashby, 98 Cal. 422, 33 Hendrick v. Cannon, 5 Tex. 248. 
 
 Pac. 729. Colorado: Brandenburg v. Washington: Stanford Land Co. v. 
 
 Reitman, 7 Colo. 323, 3 Pac. 577; Steidle, 28 Wash. 72, 68 Pac. 178. 
 
 Mills Ann. St. of Colo., § 1976. Illi- English: Cobb v. Stokes, 8 East 358; 
 
 nois: Walker v. Ellis, 12 111. 470; Messenger v. Armstrong, 1 Term R. 
 
 Secor V. Pestana, 37 111. 525; Wilier- 53. 
 
 ton V. Shoemaker, 60 111. App. 126. =" Schreiber v. Chicago &c. R. Co., 
 
 Indiana: Mason v. Kempf, 11 Ind. 115 111. 340, 3 N. E. 427; Stockwell v. 
 
 App. 311; Alcorn v. Morgan, 77 Ind, Marks, 17 Me. 455.
 
 § 256] NOTICE TO QUIT. 292 
 
 the landlord.^^ According to common law, when the tenancy termi- 
 nated at a day certain, the landlord could always commence his action 
 of ejectment to recover possession of the land, after the expiration of 
 the lease, without any notice to quit. This he could do, although the 
 tenant became a tenant by sufferance by holding after the term without 
 his permission.^^ The termination of an extension to a- lease is identi- 
 cal with a lease for a definite term having no extension. No notice 
 to quit is necessary. All that would be required in regard to a still 
 further extension would be the expression of an opinion not to accept 
 it.2» 
 
 § 256. Where a tenant holds premises for the full term provided 
 for by a void agreement, the agreement is nevertheless effective to set 
 a time for the termination of the term and renders a notice to quit 
 at the end of the term unnecessary,^** "The doctrine of the English 
 cases seems to be that a party entering under a lease, void by the 
 statute of frauds, for a term as expressed in it of more than one year 
 and paying rent, is treated as a tenant from year to year from the time 
 of his entry, subject only to the right to terminate the tenancy with- 
 out notice at the end of the specified term. And to that extent and 
 for that purpose only, the terms of agreement, in such case, regulate 
 the time to quit. This right is held to be reciprocal."^ ^ The agree- 
 ment for termination will bind the parties if the property is held 
 up to the period designated in the lease and no notice to quit will 
 be necessary, though if such lease be for a number of years, it may 
 be terminated at the end of any yearly period on proper notice.^^ 
 
 A parol lease for a single year would, in most jurisdictions, be as 
 valid to create a definite term for years as an instrument in writing 
 would be. Even where it was not valid, it would expire by its own 
 limitation and bring the bolding to an end without any notice to 
 quit.^^ Prior occupation for several years on a year to year tenancy 
 
 "Poppers V. Meagher, 148 111. 192, R C. L. 263; Davenish v. Moffatt, 15 
 
 35 N. E. 805. A. & E. (N. S.) 257, 69 E. C. L. 256; 
 
 ^ Smith V. Littlefield, 51 N. Y. 539. Doe v. Stratton, 4 Bing. 446; Tress 
 
 2" Whetstone v. Davis, 34 Ind. 510. v. Savage, 4 E. & B. 36, 82 E. C. L. 36. 
 
 =0 Ryan v. Mills, 129 Mich. 170, 88 ^' Coudert v. Cohn, 118 N. Y. 309, 
 
 N. W. 392; Williams v. Deriar, 31 23 N. E. 298, per Bradley, J., citing 
 
 Mo. 13; Teft v. Hinchman, 76 Mich. Doe v. Stratton, 4 Bing. 446. 
 672, 43 N. W. 680; Butts v. Fox, 96 ^= Butts v. Fox, 96 Mo. App. 437, 70 
 
 Mo. App. 437, 70 S. W. 515; Coudert S. W. 515. 
 
 V. Cohn, 118 N. Y. 309, 23 N. E. 298; ^= Teft v. Hinchman, 76 Mich. 672, 
 
 Mollis v. Pool, 3 Mete. (Mass.) 350; 43 N. W. 680; Butts v. Fox, 96 Mo. 
 
 Berrey v. Lindley, 3 M. & G. 498, 42 App. 437, 70 S. W. 515.
 
 293 NECESSITY FOR NOTICE. [§ 357 
 
 would not affect the result. In such a case a definite parol agree- 
 ment for a year's holding would end the tenancy at the expiration of 
 I' the year without a notice to quit.^* 
 
 § 257. No notice to quit is necessary when the parties do not 
 stand in the relation of landlord and tenant, and so no notice is neces- 
 sary after a tenant has repudiated the relation.^^ Where a tenant sets 
 his landlord at defiance and does an act disclaiming to hold under him 
 as tenant, this dispenses with the necessity of notice to quit. An in- 
 stance of this is found in the act of attorning to a stranger.^® The 
 reason for this rule has been aptly stated to be that "one is not al- 
 lowed to blow hot and cold in the same breath, i. e., if he disallows 
 the relation, he cannot afterward claim the privileges of a tenant."^'' 
 By a plea of title in himself in an ejectment suit, a tenant waives 
 the right to insist upon ordinary notice to terminate the tenancy .^^ 
 In an action of unlawful detainer, it is not necessary, after the defend- 
 ant has disclaimed the relation of tenant, for the landlord to prove 
 any demand for possession before suit is brought; a disclaimer is 
 equivalent to a demand and refusal.^'' No notice to quit is necessary 
 to entitle the landlord to recover possession from a tenant who has 
 conveyed in fee even before the termination of the lease.'**' A mere 
 licensee as to the occupancy of land is not entitled to notice to quit 
 but may be ordered to vacate at any time and becomes a trespasser on 
 his failure to obey such an order.*^ A mere intruder, occupying 
 without claim of lawful authority, cannot insist upon any rights 
 
 ^ Brandenburg v. Reitman, 7 Colo. Steinhauser v. Kuhn, 50 Mich. 367, 
 
 323, 3 Pac. 577. 15 N. W. 367; Vincent v. Corbin, 85 
 
 ^^ Simpson v. Applegate, 75 Cal. N. Car. 108; Head v. Head, 7 Jones 
 
 342, 17 Pac. 237; Bolton v. Landers. L. (N. Car.) 620; Ladd v. Riggle, 6 
 
 27 Cal. 104; Eberwine v. Cook, 74 Heisk. (Tenn.) 623; Doe v. Wil- 
 
 Ind. 377; Sims v. Cooper, 106 Ind. liams, 2 Cowp. 621; Doe v. Hull, 2 
 
 87, 5 N. E. 726; Tobin v. Young, 124 D. & R. 38; Doe v. Stanion, 1 M. & 
 
 Ind. 507, 24 N. E. 121; Roosevelt v. W. 695; Tew v. Jones, 13 M. & W. 12. 
 
 Hungate, 110 111. 595; Bodwell ^^ Head v. Head, 7 Jones L. (N. 
 
 Granite Co. v. Lane, 83 Me. 168, 21 Car.) 620, per Pearson, J. 
 
 Atl. 829; Herrell v. Sizeland, 81 111. =^' Doss v. Craig, 1 Colo. 177; Cat- 
 
 457; Fogle v. Chaney, 12 B. Mon. lin v. Washburn, 3 Vt. 25. 
 
 (Ky.) 138; Den v. Blair, 15 N. J. L. ^ Rabe v. Fyler, 10 Sm. & M. 
 
 181; Tuttle v. Reynolds, 1 Vt. 80; (Miss.) 440. 
 
 Chamberlin v. Donahue, 45 Vt. 50; *" Trustees &c. v. Meetze, 4 Rich. L. 
 
 Emerick v. Tavener, 9 Grat. (Va.) (S. Car.) 50. 
 
 220. " Johns v. McDaniel, 60 Miss. 486. 
 
 ^'Kunzie v. Wixom, 39 Mich. 384;
 
 
 §§ 258, 259] NOTICE TO QUIT. 294 
 
 against the rightful owner growing out of his occupation, and there- 
 fore is not entitled to notice to quit,'*- 
 
 § 258. Where a certain kind of notice is by statute required to 
 terminate a tenancy, a proper notice is essential to end the holding. 
 
 The tenant will continue liable for rent even after he has aban- 
 doned the premises for a longer time than, the period for which he 
 holds, unless he gives the required notice.^^ It is usually required 
 that notice be in writing and this requirement must be complied with 
 to render the notice effective. An oral notice will not end the ten- 
 ancy,** The tenant's abandonment which is known by the landlord 
 will not end the tenancy unless the landlord accepts a surrender.*^ 
 For the landlord to accept possession of course terminates the hold- 
 ing and ends the liability of the tenant for future accruing rent. 
 Such was the ground for decision in a case where the lessor accepted 
 payment of a judgment for rent covering a short period after the 
 tenant abandoned the premises. By so doing the landlord waived 
 his right to hold the tenant for future rent.*'' A notice from a ten- 
 ant to his landlord that he has transferred the premises is not good 
 as a tenant's notice to quit and does not end the tenancy because not 
 a sufficient compliance with the statute.*'^ 
 
 § 259. The rights and duties in respect to the giving of notices to 
 quit between landlord and tenant are mntual and reciprocal. The 
 
 common case is that of the landlord who is required to give notice to 
 get rid of the tenant, but in all periodical tenancies the landlord is 
 entitled to a notice of equal length before the tenant can leave the 
 premises and terminate his liability for rent.** That some doubt 
 may have existed on this point is shown by the language of the court 
 in an early Vermont case. The tenant from year to year had left 
 after only two weeks' notice and denied his liability for future rent. 
 Judge Bennett said : "The tenant could not quit at pleasure, and 
 thus debar the landlord of all accruing rent. In a tenancy from 
 year to year, a right to notice should, at least to some extent, be re- 
 
 ^' Lewis V. Ringo, 3 A. K. Marsh. 151 N. E. 462; Waples v. City of 
 
 (Ky.) 247; Petty v. Malier, 15 B. New Orleans, 28 La. Ann. 688. 
 
 Mon. (Ky.) 591, 606. '" Betz v. Maxwell, 48 Kan. 142, 29 
 
 "Rollins V. Moody, 72 Me. 135; Pac. 147. 
 
 Smith V. Smith, 62 Mo. App. 596. ^" Whicher v. Cottrell, 165 Mass. 
 
 " Chapman v. Tiffany, 70 N. H. 351, 43 N. E. 114. 
 
 249, 47 Atl. 603. ^'Currier v. Perley, 24 N. H. 219; 
 
 ^^ Taylor v. Tuson, 172 Mass. 145, Morehead v. Watkyns, 5 B. Mon. 
 
 (Ky.) 228.
 
 S95 SUFFICIENCY OF NOTICE, [§ 260 
 
 garded as reciprocal."*® In statutes regarding notice to quit there 
 is frequently an express provision to the effect that the right to receive 
 notice to quit and the duty to give it is mutual between the parties. 
 This construction is usually given to statutes even where there are no 
 express provisions to this effect. In the case of the Kansas statute, 
 however, the language was so clear and unambiguous that the court 
 held notice from the tenant to the landlord was not necessary.^^ 
 Codes based upon the Kansas act would probably receive a similar 
 construction. 
 
 II. Sufficiency of Notice. 
 
 § 260. That the notice must point to the time for the tenants 
 to quit is a general requirement based on obvious grounds of con- 
 venience and justice.^ ^ In holding that a demand for present pos- 
 session would not operate as a notice to quit at a future day it was 
 said, after an enumeration of the essential parts of a notice: "It is, 
 however, unnecessary to say more here than that a simple demand 
 of present possession, which is all that the testimony shows, is not 
 a notice to quit after the expiration of thirty days. Without an 
 antecedent notice the landlord here was not entitled to possession, 
 and it must be plain that a demand for a possession to which he is 
 not entitled amounts to nothing, certainly not to a notice to quit at a 
 future time."^^ Thus testimony was adduced in another case that 
 on several occasions the landlord told the tenant to clear out, to leave 
 the premises and that he would not have him there. Some of these 
 conversations were more than half a year before the end of the term. 
 But the objection to their sufficiency was that they set no time at 
 which the tenant must quit and further that they imported an im- 
 mediate quitting and alluded to no future period whatever.^^ And 
 it has been held that notice by a tenant that he surrenders possession 
 on the day on which the notice is given would not terminate the ten- 
 ancy on the expiration of one month from that date, even though 
 one month's notice only is required to terminate such a tenancy.^* 
 In explanation of this requirement the Massachusetts court said: 
 
 « Hall v. Wadsworth, 28 Vt. 410. =- McLean v. Spratt, 19 Fla. 97, 
 
 =" Nelson v. Ware, 57 Kan. 670, 47 101, per Westcott, J. 
 
 Pac. 540, reversing 4 Kan. App. 258, "■'' Hanchet v. Whitney, 1 Vt. 311. 
 
 45 Pac. 923. ^^ Eastman v. Vetter, 57 Minn. 164, 
 
 "Hanchet v. Whitney, 1 Vt. 311; 58 N. W. 989; Currier v. Barker, 2 
 
 Haley v. Hickman, Litt. Sel. Cas. Gray (Mass.) 224, 227; Grace v. 
 
 (Ky.) 266. Michand, 50 Minn. 139, 52 N. W. 390.
 
 § 261] NOTICE TO QUIT. 296 
 
 "The notice to quit is technical, and is well understood; it fixes a 
 time at which the tenant is bound to quit, and the landlord has a 
 right to enter, and a time at which the rent terminates. The rights 
 of both parties are fixed by it, and are dependent on it. Should the 
 landlord decline to enter, and the tenant quit according to the notice, 
 the tenant could be no longer holden for rent, although he had given 
 no notice to the landlord. The lease is 'determined' by such notice, 
 properly given, by either party. It is manifest, therefore, that when 
 such consequences depend upon the notice to be given, the notice 
 should fix, with reasonable exactness, the time at which these conse- 
 quences may begin to take eSect.''^^ 
 
 § 261. The time for quitting must be on the day of the year when 
 the tenancy commenced.^" During the year of the holding, the land- 
 lord has no more right to require the tenant to vacate the premises 
 by notifying him to do so than a landlord would have to make a 
 similar demand during the term of a written lease. The landowner 
 can only require the occupant to yield up possession at the end of 
 a year and after giving him six months' warning that the holding is 
 to be brought to a conclusion. A notice to quit at any period sooner 
 or later than the conclusion of one of the periods of the tenancy 
 will not avail.^^ In a year to year tenancy the notice must show the 
 time when it is given and the time when the tenancy began, and with- 
 out this it cannot be good.^^ A notice to quit which breaks into the 
 quarter, month or week, is not a good notice. The statutory notice 
 for the determination of an estate at will, when the rent reserved is 
 payable at periods of less than three months, must not only be as long 
 as the interval between the days of payment but must terminate at 
 the expiration of such an interval.^^ 
 
 It is an almost universal custom to name the day corresponding 
 to the date of the letting and entry of the tenant as the time for 
 quitting and no objection seems to have been raised to the sufficiency 
 of notice on that ground.*^" In reckoning the conclusion of a periodi- 
 
 " Currier v. Barker, 2 Gray " Waters v. Williamson, 59 N. X 
 
 (Mass.) 224, 227, per Shaw, C. J. L. 337, 36 Atl. 665. 
 
 ^^Critchfield v. Remaley, 21 Neb. ^Phelps v. Long, 9 Ired. L. (N. 
 
 178, 31 N. W. 687; Lesley v. Ran- Car.) 226. 
 
 dolph, 4 Rawle (Pa.) 123; Brown v. ^^ Prescott v. Elm, 7 Cush. (Mass.) 
 
 Kayser, 60 Wis. 1, 18 N. W. 523; Bar- 346. 
 
 low v. Wainwright, 22 Vt. 88; Silsby "" Roe v. Ward, 1 H. Bl. 97; Doe v. 
 
 V. Allen, 43 Vt. 172; Blanchard v. Weller, 7 Term R. 474; Mills v. Goff,. 
 
 Bowers, 67 Vt. 403, 31 Atl. 848. 14 M. & W. 72; Doe v. Matthews, 11 
 
 I
 
 297 SUFFICIENCY OF NOTICE. [§' 261 
 
 cal holding, the day specified in the notice to quit must be the day 
 corresponding to the day of the commencement of the term.®^ If 
 a periodical tenancy expires at midnight on the last day of a certain 
 month, should the notice to quit specify the last day of that month 
 or the first day of the next month? The Supreme Court of Ehode 
 Island comments as follows on this question: "If we seek to deduce 
 a rule from the reason of the thing, we find that there are reasons 
 on both sides. On the one hand, if we say the tenant is bound to 
 quit previous to the return of the day on which he enters, we virtu- 
 ally deprive him of a part of his term; for he would, almost neces- 
 sarily, come in and go out in the daytime, and so would lose the 
 earlier part of the one and the later part of the other day. On the 
 other hand if we say he is not bound to quit until the return of the 
 day on which he enters, we give him time for which he pays no rent. 
 A rule which should divide the day between the outgoing and the in- 
 coming tenant, by making the term begin and end at noon, would 
 afford the best solution of the difficulty. But such a rule, in the 
 absence of any usage or statute establishing it, we cannot adopt. 
 From such light as we have, we must determine what the rule actually 
 is, and following the authorities which we have cited and resolving 
 any doubt which we may have in favor of the lessee, we have con- 
 cluded somewhat against our first impressions, to uphold the previ- 
 ous practice." The previous practice had been that the tenant could 
 not be required to leave before the day following the midnight when 
 his term came to an end.**^ 
 
 The opposing view is forcibly stated in a New Jersey case. The 
 court says: *T think it would be carrying the rule that a notice to 
 quit must be made with reference to the end of the term to an il- 
 logical and unreasonable length to hold that a notice given for the day 
 commencing at that midnight is not a good notice. The law is 
 ignorant of fractions of a day. The notice covers all and any period 
 of the twenty-four hours from midnight to midnight. The very 
 moment the tenancy expires the tenant is confronted with a notice 
 to quit. On what process of reasoning can it be said that a new term 
 has commenced before notice is given."*'^ A statutory notice to quit, 
 
 C. B. 675, 73 E. C. L. 673; Detroit Durfee, J., citing Taylor's Landlord 
 
 Savings Bank v. Bellamy, 49 Mich, and Tenant, § 477; Kemp v. Derrett, 
 
 317, 13 N. W. 606. 3 Camp. 510, and Ackland v. Lutley, 
 
 " Finkelstein v. Herson, 55 N. J. 9 A. & E. 879. 
 
 L. 217, 26 Atl. 688; Kemp v. Derrett, <" Steffens v. Earl, 40 N. J. L. 128, 
 
 3 Camp. 510. 136, per Reed, J. To the same effect 
 
 "-Waters v. Young, 11 R. I. 1, per see Petsch v. Biggs, 31 Minn. 392, 18
 
 § 362] N-OTICE TO QUIT. 298 
 
 properly served in regard to other requirements as to time, was held 
 not to be bad because it gave the tenant all of the first day of the 
 succeeding month in which to vacate.^* 
 
 "On or before" in a notice to quit is common language of the law 
 meaning that if you remain one day after, you remain at your peril; 
 you are a trespasser and wrongdoer. By serving such a notice, a 
 landlord does not give the tenant the privilege of leaving at once 
 without further obligation to pay rent.^^ 
 
 § 262. Defective notice. — Notices to quit being informal docu- 
 ments are liable to contain errors either in the names of the parties 
 or in the description of the premises or in the wording of the notice 
 itself. Slight errors do not invalidate the notice and the governing 
 principle has been said to be that a notice to quit will be held good 
 if it is so certain that the tenant cannot reasonably misunderstand 
 it.®" No particular form of notice to quit is necessary. It shall 
 be reasonably certain, such as to appear to be a notice given by the 
 landlord and received by the tenant and in such terms as may be 
 understood by the tenant. A misstatement of the street where house 
 is situated is not fatal if the premises are located with reasonable 
 certainty."'^ The office of any description is to furnish the means 
 of identification of the object described and this general truth is 
 applicable to that part of a notice to quit which describes the de- 
 manded premises.''^ So, in so far as the requirement regarding de- 
 scription is concerned, a notice from a landlord to a tenant has been 
 declared sufficient if it apprise the latter what premises are de- 
 manded.*'^ A discrepancy in the description of the premises as given 
 in the notice and in the complaint was held not a material error 
 rendering the notice ineffective, when the testimony was undisputed 
 that the thus differently described premises were the same premises.'^'' 
 Slight inaccuracies in wording will not invalidate notices, for the 
 courts do not treat them in a technical way. Thus a notice to quit 
 the house is a sufficient notice to quit the land upon which the house 
 stands. '^^ Where notice is served upon a tenant "to leave" the prem- 
 
 N. W. 101; Fox V. Nathans, 32 Conn. »' Congdon v. Brown, 7 R. I. 19. 
 
 348, and Leahy v. Lubman, 67 Mo. «" Epstein v. Greer, 78 Ind. 348. 
 
 App. 191. "^ Whipple v. Shewalter, 91 Ind. 
 
 "Harris v. Halverson, 23 Wash. 114. 
 
 779, 63 Pac. 549. '"Farnam v. Hohman, 90 111. 312. 
 
 •^Koehler v. Scheider, 16 Daly (N. " Kuhn v. Kuhn, 70 Iowa 682, 28 
 
 Y.) 235. N. W. 541. 
 
 •^Cook V. Creswell, 44 Md. 581; 
 McLean v. Spratt, 19 Fla. 97.
 
 299 SUFFICIENCY OF NOTICE. [§§ 2G3, 264 
 
 ises occupied by him, instead of "to quit," the words "to leave" are 
 synonymous with "to qujt," and the irregularity would not invali- 
 date the notice.'^^ But a statement by a lessee from month to month 
 ,that he "guessed" he would have to give up the house, is not a suf- 
 ficient notice of an intention to terminate the lease.'^^ 
 
 § 263. A notice to quit should be addressed to the lessee or tenant 
 in possession of the demanded premises, the reason for this require- 
 ment being that the notice shall come to his attention. So a notice 
 which was actually received and read by an assignee of a term was 
 valid to terminate the holding, although it was sent after the assign- 
 ment and addressed to the original lessee.'^* A mistake in the name 
 of the tenant upon whom the notice is served does not invalidate it. 
 In the case under consideration there was no uncertainty as to the 
 party from whom the notice emanated or the tenement to which it 
 applied, and there could have been no doubt that it was meant for 
 the family occupying that tenement. The mistake in the Christian 
 name of the tenant was therefore of no importance." A written 
 notice of intention to quit, addressed by a tenant at will to the agent 
 of the landlord in the agent's own name, was held sufficient if given 
 to and received by him as such agent. If the person receiving the 
 notice was the agent in reference to the leasing of the building, and 
 the notice was in fact given to him by such agent, and was so re- 
 ceived and so understood by him, the form of its direction would not 
 render it invalid."*' 
 
 § 264. A formal Insufficiency of a notice to quit is waived by the 
 tenant's repudiation of the monthly tenancy and his refusal to quit 
 on the ground that he has a tenancy for years in the premises. '^'^ A 
 tenant, who has received an irregular notice to quit, waives the ir- 
 regularity by claiming a right to continue in possession of the prem- 
 ises on another ground.''^ If a tenant chooses to comply with a 
 notice asking him to vacate a portion of the leased premises, he could, 
 by so doing, terminate his liability for rent to that extent. But the 
 tenant could not be compelled to vacate part and continue the ten- 
 ancy as to the balance of the premises; a notice to vacate a part 
 
 "Douglass V. Anderson, 32 Kan. ^" Bay State Bank v. Kiley, 14 
 
 350, 4 Pac. 257. Gray (Mass.) 492. 
 
 " Hunter v. Karcher, 8 S. Dak. " Drey v. Doyle, 28 Mo. App. 249. 
 
 554, 67 N. W. 621. '« jjj-ey v. Doyle, 99 Mo. 459, 12 S. 
 
 " Parnam v. Hohman, 90 111. 312. W. 287. 
 
 '^ Clark V. Keliher, 107 Mass. 406.
 
 §§• 265, 266] NOTICE to quit. . 300 
 
 would not justify him in vacating the whole, so that such a partial 
 notice would be ineffectual as a notice to quit and would only serve 
 to protect the tenant in case he chose to comply with its terms.'^^ 
 
 § 265. Authority of agent. — In a case where a notice to quit had 
 been signed by an agent it was argued that such notice was invalid 
 because the agent was not authorized in writing. The analogy urged 
 was to the execution of instruments within the statute of frauds. 
 But the court held the notice valid, relying on a statutory provision 
 to the effect that an oral authorization was sufficient for any purpose, 
 except that an authority to enter into a contract required by law to 
 be in writing can only be given by an instrument in writipg.®" This 
 statute is only declaratory of the common law and the principal 
 case probably represents the general law on the point, A notice to 
 quit is not instrumental in making a contract and therefore is not to 
 be governed by the rules which regulate the making of contracts. 
 Any requirements as to form rest on statutes and such statutes are 
 not to be extended by construction. A notice to quit, which has been 
 given by an unauthorized agent, cannot be subsequently ratified by 
 the principal so as to be valid ah initio. Otherwise the principal, 
 by refusing to recognize his agent's act, could hold the other party 
 to his contract; a notice to be valid must bind the party giving it 
 during the entire time that the notice must continue.®^ ; Where a 
 notice in writing to quit is executed by an agent in behalf of his 
 principal, the ordinary mode of indicating the agency in use in other 
 written instruments should be employed. The general rule that the 
 signature is sufficient if the relationship is unmistakably indicated 
 holds true in regard to notices to quit. So a notice signed A. B. 
 by C. D,, "an authorized agent," was held sufficient although a better 
 form would be "his authorized agent."® ^ 
 
 § 266. Who may give notice after assignment. — In case a lease- 
 hold is assigned, notice to quit may be given by the original lessor 
 to the assignee and in case of an underletting, the notice must be given 
 either from the landlord to the original lessee or from the original 
 
 ™ Alworth v. Gordon, 81 Minn. v. Goldwin, 2 A. & E. (N. S.) 143, 42 
 
 445, 84 N. W. 454. E. C. L. 610; Right v. Cuthell, 5 East 
 
 ""Felton V. Millard, 81 Cal. 540, 21 490, 500; Goodtitle v. Woodward, 3 
 
 Pac. 533, 22 Pac. 750, Civ. Code, B. & Aid. 689; Pickard v. Perley, 45 
 
 § 2309. N. H. 188. 
 
 "Story on Agency, §§ 245-246; " Reed v. Hawley, 45 111. 40, 
 Doe v. Walters, 10 B. & C. 626; Doe
 
 301 SUFFICIENCY OF NOTICE. [§ 267 
 
 lessee to the under-tenant. So that a direct notice from the landlord 
 to the under-tenant would be bad.®* But a lessee cannot convey a 
 greater interest in the leased premises than he himself has and the 
 granting of underleases could not extend the term of the holding 
 or alter the contract between the original parties.®* So a notice to 
 quit served on the original lessee in order to enable the landlord 
 to terminate the tenancy is binding on under-tenants who acquire 
 possession from the tenant after the service.®^ 
 
 Where a lease is given while the premises are in possession of an- 
 other under a tenancy, without attornment, the owner, rather than 
 the new lessee, is the proper party to give notice to quit and to sue 
 in ejectment.®® 
 
 § 267. A notice to quit should be absolute rather than in the al- 
 ternative. Where a lease could be determined by the lessor on ten 
 days' notice, a demand for possession accompanied by a declaration 
 that if possession was not given a certain rate per day would be 
 charged as long as the tenant continues to occupy the premises, was 
 held not valid as a notice to quit.®^ A notice to quit can hardly 
 be considered valid which gives the tenant an option of remaining 
 in possession upon payment of a specified increased rent.®® The 
 doctrine, as thus laid down, has been modified to some extent. Thus 
 it was held that a notice to quit unless the tenant complies with 
 a certain condition was not insufiicient if it gave no option which 
 might be exercised after the time fixed by the notice. So a notice 
 to vacate unless the tenant is willing to enter into an immediate 
 agreement to pay an increased rent is valid.®^ This is in effect what 
 is done in every case where a landlord wishes to allow his tenant from 
 period to period to continue in possession at an increased rent. The 
 landlord may make proposals for a new tenancy upon different terms 
 and if the tenant remain in possession he is presumed to consent to 
 the proposed terms. Under such circumstances mere silence on his 
 part will amount to an assent.®" Where a tenant refuses to comply 
 
 ^'Waters v. Roberts, 89 N. Car. *• Candler v. Mitchell, 119 Mich. 
 
 145. 464, 78 N. W. 551. 
 
 '* See post, § 554. "" Roberts v. Hayward, 3 C. & P. 
 
 *= Schilling v. Holmes, 23 Cal. 227. 432; Higgins v. Halligan, 46 111. 173; 
 
 ^''Maher v. Hanley Brewing Co., 23 Despard v. Walbridge, 15 N. Y. 374; 
 
 R. I. 343, 50 Atl. 392. Reithman v. Brandenburg, 7 Colo. 
 
 "'Ayres v. Draper, 11 Mo. 548. 480, 4 Pac. 788; Hunt v. Bailey, 39 
 
 "" D'Arcy v. Martyn, 63 Mich. 602, Mo. 257. 
 ■'^ 30 N. W. 194.
 
 § 268] NOTICE TO QUIT. 302 
 
 with a notice to quit and continues in possession against the will of 
 his landlord, he may still be charged with liability for the amount 
 of the rent reserved in the lease at the option of the landlord.^^ And 
 in a case where the notice to quit came from the tenant and the pro- 
 posal for an increased rent from the landlord, continued possession 
 made the tenant liable as on a new contract.^^ 
 
 If the tenant manifests his dissent from the terms proposed for 
 increased rent, then no privity of contract will be created for the in- 
 creased rent, and if he holds over it will be considered to be on the 
 terms of the lease by which he originally gained possession. In 
 such case, the remedy of the landlord would be ousting the tenant 
 from the possession under the statute.®^ The rent cannot be in- 
 creased without an express or implied consent on the part of the ten- 
 ant.^* However, dissatisfaction with the proposed new terms does 
 not necessarily show that the tenant refuses to accept them. So a 
 previous refusal of the tenant to sign a lease reserving higher rent 
 did not prevent the court from inferring his assent to the new terms 
 from his silence after receiving notice of them.^^ The nature of 
 the transaction as being the making of a new contract was illustrated 
 in a case where the landlord gave the alternative notice on a Sunday. 
 In holding the tenant was not liable for the increased rent, the court 
 said: "I do not forget that the contract was not completed on Sun- 
 day. It would have arisen only by the fact that retention of pos- 
 session was an acceptance of the landlord's proposal or demand. 
 But in proving the contract it was essential to prove a business mat- 
 ter occurring upon Sunday. Without proof of the notice, the re- 
 tention of possession had no significance whatever. It is unlike those 
 cases in which a preliminary conference held on Sunday has been 
 merged into a contract made upon a secular day. Here the most 
 important circumstance out of which the contract grew was done 
 upon a Sunday, by the person who is now seeking to enforce it."^® 
 
 Mere notice by a tenant holding over that he will hold under a 
 different tenure is not suiiicient to create a new lease.^^ 
 
 § 268. Notice by parol to terminate a tenancy from year to year 
 was of course sufficient at common law.''* A written document not 
 
 "' Clapp v. Noble, 84 111. 62. "' Griffin v. Knlsely, 75 111. 411. 
 
 '^Tittfield v. Ewing, 6 Phila. (Pa.) ""Cannon v. Ryan, 49 N. J. L. 314, 
 
 455. 8 Atl. 293, per Reed, J. 
 
 «^Hunt V. Bailey, 39 Mo. 257; Gal- =" Sears v. Smith, 3 Colo. 287. 
 
 loway V. Kerby, 9 111. App. 501. °' Graham v. Anderson, 3 Harr. 
 
 "Atkinson v. Cole, 16 Colo. 83, 26 (Del.) 364; Haley v. Hickman, Litt. 
 
 Pac. 815. Sel. Cas. (Ky.) 266; Hanchett v.
 
 303 SUFFICIEXCY OF NOTICE. [§ 269 
 
 under seal carried no greater weight than spoken words and written 
 evidence was only made necessary by the statute of frauds, which did 
 not extend this requirement beyond certain cases of contractual rela- 
 tion. A notice to quit served in no sense to create a contractual re- 
 lation. Thus the removal of a year to year tenant more than six 
 months prior to the end of a year, which removal is brought to the 
 attention of the landlord, is a sufficient notice of the tenant's inten- 
 tion to quit, and ended the holding at the expiration of the year.**^ 
 
 However, the statutes on this subject almost invariably provide 
 that notice shall be given in writing. The object of this requirement 
 is twofold: it provides the tenant with a convenient reference as to 
 his duty in vacating the premises and serves to prevent the introduc- 
 tion of false testimony as to notices which were never given. This 
 requirement means that the writing shall be given to the party who 
 is notified and not merely read to him. The rule is supported by 
 the weight of authority throughout the states, that, where the law 
 requires notice in writing, the reading of a writing to the person to 
 be notified is no compliance with the requirement.^^" 
 
 § 269. Notices to and from joint owners. — On the question whether 
 a notice to terminate a lease made by joint tenants or tenants in com- 
 mon must come from all the joint owners or not, there is a conflict 
 of authority. It has been held that notice by one of two joint lessors 
 in behalf of both was sufficient to terminate the entire tenancy. "The 
 hardship upon the tenant, if he were not entitled to treat the notice 
 from one as putting an end to the tenancy as to the whole is obvious; 
 for however willing he might be to be sole tenant of an estate, it is 
 not likely he would be willing to hold undivided shares of it; and if 
 upon such a notice the tenant is entitled to treat it as putting an end 
 to the tenancy as a whole, the other joint tenant must have the same 
 right. It cannot be optional on one side only."^°^ 
 
 The Supreme Court of New Hampshire, reviewing the case just 
 quoted and recognizing its authority, nevertheless reached the oppo- 
 site conclusion. ^*^- The ground of decision seems to be that as each 
 tenant in common could only demise his own interest so he could 
 
 Whitney, 2 Aik. (Vt.) 240; McLean Williams v. Brummel, 4 Ark. 129; 
 
 V. Spratt, 19 Fla. 97. Fitts v. Whitney, 32 Vt. 589. 
 
 ""Adams v. Cohoes, 127 N. Y. 175, ^"^ Doe v. Summersett, 1 B. & Ad. 
 
 28 N. E. 25. 135, per Lord Tenterden. 
 
 '"'' Langan v. Schlief, 55 Mo. App. ^'>- Pickard v. Perley, 45 N. H. 188, 
 
 213; Jenkins v. Jenkins, 63 Ind. 415; citing Doe v. Chaplin, 3 Taunt. 120, 
 
 Hart V. Gray, 3 Sumn. (U. S.) 339; and Right v. Cuthell, 5 East 491.
 
 § 370] NOTICE TO QUIT. 304 
 
 only end the tenancy as to his own interest. In regard to the argu- 
 ment of hardship the court say: "On the other hand, cases might 
 often arise where it would be for the interest of the tenant to con- 
 tinue to hold the remaining share, and where he would elect to do 
 so if in his power. To hold,, then, that a notice to quit by one of 
 several lessors must terminate the entire lease, might be a great 
 hardship to the tenant as it might compel him to give up what it 
 would be for his interest to hold, and what he had not been called 
 to surrender by the owner." 
 
 Without regard to the view adopted as between these conflicting 
 decisions, when the question is whether a notice must be given to 
 all of several joint owners or lessees neither of the arguments in favor 
 of such a requirement will apply. So it was held that a notice to 
 quit, given to one of two joint tenants, was sufficient.^"^ As long as 
 one of the parties jointly interested knew of the termination of the 
 tenancy there could be no hardship. Furthermore the question of 
 authority to give the notice does not enter into the question at all. 
 However, it has been held, without any argument or citation of 
 authority, that where there are two landlords, the tenants' notice 
 to quit must be given to each of them separately.^"* 
 
 § 270. The requirements for notice to quit may be waived by 
 agreement between the parties. This holds true in all cases where 
 notice to quit is necessary and without distinction as to whether the 
 tenancy is strictly at will,^"^ or from year to year.^°^ There seems 
 to be no reason why a general waiver would not be valid and binding 
 upon the familiar doctrine of estoppel and a specific waiver of notice 
 at the end of a definite period could be supported on the same ground. 
 An agreement that a tenant at will may leave the premises at pleasure 
 and at a moment's notice is valid and relieves the tenant from giv- 
 ing the notice mentioned in the statute.^°^ 
 
 However, in one case it was said that such an agreement changed 
 the tenancy at will into one for a fixed term. The reciprocal sur- 
 render of rights constituted a consideration on each side of the agree- 
 
 ^"^ Glenn v. Thompson, 75 Pa. St. Seaman, 46 Mich. 74, 8 N. W. 711; 
 
 389. Farson v. Goodale, 8 Allen (Maes.) 
 
 ^•^ Bless V. Jenkins, 129 Mo. 647, 31 202. 
 
 S. W. 938; Long v. Bolen Coal Co., "«Lane v. Ruhl, 94 Mich. 474, 54 
 
 56 Mo. App. 605. N. W. 175; Graham v. Anderson, 3 
 
 ^"'Betz V. Maxwell, 48 Kan. 142, 29 Harr. (Del.) 364. 
 
 Pac. 147; Engels v. Mitchell, 30 "^ Davis v. Murphy, 126 Mass. 143. 
 Minn. 122, 14 N. W. 510; Moody v.
 
 305 SUFFICIENCY OF NOTICE. [§ 370 
 
 ment and notice became unnecessary, because there was an agreed 
 time for the termination of the tenancy and notice was always dis- 
 pensed with in such cases."^ 
 
 In respect to what constitutes a waiver, a distinction has been drawn 
 between a specific agreement to waive notice and the mere circum- 
 stances that the duration of the term is left indefinite. In a case 
 of this kind, where the court held there was no waiver, it was said : 
 *'It is true that the tenant was privileged to vacate at any time, the 
 term thus being made indefinite instead of fixed; but, as before 
 stated, this was not an agreement to waive the statutory notice. It 
 determined the character of the lease and the nature of the tenancy, 
 nothing more. To do away with the notice when the tenancy is at 
 will, an agreement that notice need not be given is necessary ."^^'^ 
 
 By accepting possession after tenant has abandoned the premises, 
 a landlord waives the requirement for a notice to quit and can recover 
 rent only to the time he resumed possession.^^^ But the acceptance 
 of possession is a matter of intention and slight acts by the landlord 
 do not prevent him from holding the tenant liable for rent. Thus 
 a landlord did not waive his right to notice, and accept the premises, 
 by going into the rented house with a person who had been sent by 
 the tenant to remove articles left there by him, or by entering after- 
 ward, as cold weather approached, to see that the water was properly 
 turned off.^^^ 
 
 Parties might create an estate at will, which should terminate by 
 its own limitation upon the contingency^^^ of a failure by the tenant 
 to pay the rent quarterly in advance/^^ But no such intention can 
 be inferred from a mere agreement by the tenant to pay rent quarterly 
 in advance. So failure to pay rent would not enable the landlord 
 to maintain the summary process provided by statute, without giv- 
 ing a valid notice under the statute.^^'* A fortiori, the tenant can- 
 not treat the tenancy as terminated by reason of his failure to comply 
 with his agreement to pay rent in advance. A mere agreement to 
 pay rent in advance is not a condition precedent to the vesting of 
 
 "« Engels V. Mitchell, 30 Minn. 122, "^ Finch v. Moore, 50 Minn. 116, 52 
 
 14 N. W. 510. N. W. 384. 
 
 "'' Paget V. Electrical &c. Co., 82 "= See supra, § 114. 
 
 Minn. 244, 246, 84 N. W. 800, per Col- "^ Elliott v. Stone, 1 Gray (Mass.) 
 
 lins, J. 571. 
 
 "» Vegely v. Robinson, 20 Mo. App. "* Elliott v. Stone, 12 Cush. 
 
 199. (Mass.) 174. 
 
 Jones L. & T.— 20
 
 1 
 
 §§ 271, 272] NOTICE TO QUIT. 306 
 
 the estate. So such an agreement does not give a tenant at will a 
 right to leave without giving the statutory notice to quit.^^^ J| 
 
 § 271. Enforcement of notice. — A valid notice to quit, well served, 
 may be waived by the subsequent conduct of the parties, so that the 
 right to end the tenancy, once acquired, is lost. This is the effect of 
 accepting rent. Acceptance of rent accruing after the expiration of 
 a notice to quit is a waiver of the notice. ^^^ The tenancy is recog- 
 nized as still subsisting. Another act having the same effect is the 
 service of a second notice to quit. Giving a second notice after the 
 expiration of the first is, in effect, an admission that a tenancy still 
 subsists, and is a waiver of the first notice. Upon receiving the 
 second notice, the tenant unquestionably had the right to suppose 
 that the landlord had waived the first notice and that the tenancy 
 would continue until the time fixed in the last notice and act accord- 
 ingly.^^^ Similarly, a second notice from the grantee of a lessor 
 waives a former one which was given by the lessor himself.^^^ How- 
 ever, the doctrine of waiver would not be carried to such an extent 
 that it will be presumed from a mere reminder to the tenant to quit 
 at a time agreed upon. This was the effect of a second notice which 
 set the same time for the termination of the tenancy that had been 
 previously agreed upon. There was no recognition of the tenancy 
 as still subsisting after the time when it was to terminate by the first 
 notice.^^^ Service of a notice to quit upon a tenant at will upon 
 which no action is taken by either party for several years does not 
 affect the relation of the parties. ^^^ But a parol permission to re- 
 main a few days after the expiration of the period fixed by a notice 
 to quit is not necessarily a waiver of that notice.^^^ 
 
 III. Service of Notice. M 
 
 § 272. Personal service of a notice to quit upon a tenant is not 
 necessary.^-^ Such a notice is not legal process.^^^ The reason for 
 
 "''Sprague v. Quinn, 108 Mass. "« O'Neill v. Cahill, 2 Brewst. 
 
 553; Hilsendegen v. Scheich, 55 (Pa.) 357. 
 Mich. 468, 21 N. W. 894. "' Moody v. Seaman, 46 Mich. 74, 8 
 
 "" Collins V. Canty, 6 Gush. N. W. 711. 
 (Mass.) 415. "^o Newell v. Sanford, 13 Iowa 191. 
 
 "'Dockrill v. Schenk, 37 111. App. ^=' Babcock v. Albee, 13 Mete. 
 
 44; Morgan v. Powers, 31 N. Y. S. (Mass.) 273. 
 
 954; Brierly V. Palmer, 16 East 53; "= Doe v. Gray, 2 Houst. (Del.) 
 
 D'Arcy v. Martyn, 63 Mich. 602, 30 135; Jones v. Marsh, 4 Term R. 464. 
 N. W. 194. ^' Weeks v. Sly, 61 N. H. 89.
 
 307 SERVICE OF NOTICE. [§' 273 
 
 requiring notice at all is to warn the other party of the termination 
 of the tenancy and thus prevent inconvenience and loss. If the ten- 
 ant has actual knowledge, the object of the notice is accomplished. 
 So it has been declared that a notice of this nature may be served 
 on the tenant, whether on or off the premises, or if he cannot be 
 found, upon some one of proper age residing on the premises.^-* 
 "As a general rule any mode of serving a notice to quit is sufficient 
 where it can be traced to the hands of the party for whom it was in- 
 tended in due time. Wlienever the service upon the party in per- 
 son is practicable, it should be the mode adopted, but in the absence 
 of the tenant the notice may and should be served in the mode best 
 calculated to reach him.''^-*' 
 
 It is a sufficient service of the notice to leave it at his house 
 on the premises with his wife in the absence of the tenant from 
 home.^-^ Service was well made when the notice was given to a 
 sister of tenant on the premises after tenant had been seen but had 
 shut himself up in a room.^-'' Service upon the tenant's husband upon 
 the premises is also sufficient.^^** The service of a notice to ter- 
 minate a tenancy at will upon an agent having charge and manage- 
 ment of his principal's business with reference to the tenancy is as 
 effective as service upon the principal himself. ^^^ But it was held 
 not to be a good service of a notice to quit to leave it at the lessee's 
 house off the demised premises with some one not an agent of the les- 
 see or a member of his family."^ 
 
 § 273. In England a notice to quit left with the servant or wife 
 of the tenant of the premises is not well served unless the contents of 
 the message is explained to the person receiving it.^^* It was ruled 
 in an early case that "The mere leaving of a notice to quit at the 
 
 ^=' Epstein v. Greer, 78 Ind. 348; App. 251; Hazeltine v. Colburn, 31 
 
 Steese v. Johnson, 168 Mass. 17, 46 N. H. 466; Clark v. Keliher, 107 
 
 N. E. 431; Doe v. Dunbar, Mood. & Mass. 406. 
 
 M. 10; Roe v. Street, 2 A. & E. 329; i^" McSloy v. Ryan, 27 Mich. 110. 
 
 Doe v. Ongley, 10 C. B. 25, 70 E. C. "" Cook v. Creswell, 44 Md. 581. 
 
 L, 25. "^ Prendergast v. Searle, 81 Minn. 
 
 ^^"Alworth V. Gordon, 81 Minn. 291, 84 N. W. 107. 
 
 445, 453, 84 N. W. 454, per Start, C. ''^ Hpdgkins v. Price, 137 Mass. 13. 
 
 J.; Van Studdiford v. Kohn, 46 Mo. "* Doe v. Dunbar, Mood. & M. 10; 
 
 App. 436. Roe v. Street, 2 A. & E. 329; Doe v. 
 
 ^^'Blish V. Harlow, 15 Gray Ongley, 10 C. B. 25, 34, 70 E. C. L. 
 
 (Mass.) 316; Doe v. Gray, 2 Houst. 25; Smith v. Clark, 9 Dowl. 202. 
 (Del.) 135; Beiler v. Devoll, 40 Mo.
 
 § 274] NOTICE TO QUIT. 308 
 
 tenant's house, without further proof of its being delivered to a ser- 
 vant and explained, or that it came to the tenant's hands, is not suf- 
 ficient to support an ejectment."^^^ But the service was adequate 
 where it was proved that the notice was delivered to the tenant's ser- 
 vant at the dwelling house of the tenant, off the premises, and its con- 
 tents were explained at the time."'^ However, it has been suggested 
 that no such distinction exists in this country.^^^ Still the landlord 
 must adopt the best reasonable means within his power to bring per- 
 sonal knowledge of the notice home to the tenant. So it was held that 
 leaving a notice to vacate a farm with the servant in a city boarding 
 house where the tenant boarded was not a sufficient service. The ten- 
 ant or his wife could have been found by inquiry.^^^ This question 
 was presented to the Supreme Court of Massachusetts in a case where 
 a leased shop was left in charge of a partner of the tenant and the 
 notice to quit was served on such partner. Justice Gray, speaking for 
 the court, said: "And upon principle, it would seem that a notice 
 delivered to an authorized agent upon the premises would be quite 
 as likely to reach the tenant, or to be attended to if he did receive it 
 in person, as a notice given to one of his family or household at his 
 dwelling house in his absence. . . . Under these circumstances 
 the mode of service adopted, if not the only one practicable for the 
 landlord, was clearly the most beneficial to the tenant and must be 
 held sufficient."^*" 
 
 § 274. Service of a notice by mail so as to cast upon the tenant 
 the risk of receiving it is not authorized ; yet if such mode of service 
 is adopted and it is actually received by the tenant within the required 
 time it is sufficient.^*^ In supporting its decision that such a mode of 
 service was good the Minnesota court said: "While the plaintiff, in 
 this case was not authorized to serve the notice by mail, so as to cast 
 upon the defendant the risk of receiving it, yet if the notice was de- 
 livered to and received by him within the required time it is imma- 
 terial whether it was delivered to him by the postman or any other 
 agency; for the essential thing is that he received the notice in due 
 
 ^^^ Doe V. Lucas, 5 Esp. 153. "° Walker v. Sharpe, 103 Mass. 154, 
 
 "' Jones v. Marsh, 4 Term R. 464. 156. 
 
 "'De Giverville v. Stolle, 9 Mo. "^Candler v. Mitchell, 119 Mich. 
 
 App. 185. 464, 78 N. W. 551; Alworth v. Gor- 
 
 "" De Giverville v. Stolle, 9 Mo. don, 81 Minn, 445, 84 N. W. 454. 
 App. 185.
 
 309 SERVICE OF NOTICE. [§§' 275, 276 
 
 time. When the plaintiff selected the mail as the agency for delivering 
 the notice to the defendant he took the risk of its coming into his hands 
 in due time. We hold the service of the notice good in this case upon 
 the sole ground that it was actually delivered to the defendant within 
 the required time."^*^ In another case where this question was raised, 
 the court ventured the comment that service by mail would doubtless 
 have been good had the letter addressed to the tenant through the mail 
 been stamped ; but as there was no evidence that this was done there 
 was no prima facie evidence of service of notice on the tenant.^'*^ 
 
 Where it is allowed by statute that a three months' notice in writing 
 to terminate a tenancy can be served by mailing, it is essential that it 
 be received three months before the end of the term, as well as mailed 
 that length of time before. It makes no difference that the landlord 
 is a non-resident of the state.^** 
 
 A tenant at will sent to his landlord's office a notice to determine 
 the tenancy. The office door was closed and had on it a placard re- 
 questing letters to be put in a box near by. The notice was put in the 
 box and the landlord found it there the next day. The court were of 
 opinion that dropping the notice in the box was not a proper service 
 on the landlord, and that it would take effect only from the time it 
 was actually received.^*^ 
 
 § 275. Service by posting. — Ordinarily a notice to quit should be 
 delivered into the hands of somebody and not merely left at the 
 house.^**' But statutes in regard to notice frequently provide for the 
 service upon tenants who have abandoned the premises by posting. 
 The usual requirement is that the notice be posted in a conspicuous 
 place on the premises and a copy mailed to the tenant. Where service 
 may be made by posting the notice to a door on the premises when they 
 have been abandoned, it is not objectionable to have the premises de- 
 scribed as "now occupied by you," for that is merely following out the 
 statutory form of notice, ^*'^ 
 
 § 276. Proof of service. — Since a notice to quit does not in any 
 way partake of the nature of a process issuing out of a court of law, 
 
 '*=^ Alworth V. Gordon, 81 Minn. "^ May v. Rice, 108 Mass. 150 
 
 445, 453, 84 N. W. 454, per Start, C. J. »« Hazeltine v. Colburn, 31 N. H. 
 
 ^*^ Bless V. Jenkins, 129 Mo. 647, 31 466. 
 
 S. W. 938, citing Briggs v. Hervey, "' Consolidated Coal Co. v. Schaef- 
 
 130 Mass. 186. er, 135 111. 210, 25 N. E 788. 
 
 '" Roberts v. Grubb, 5 Houst. 
 (Del.) 461.
 
 §§ 277, 278] NOTICE to quit. 310 
 
 code provisions applying only to notices given in judicial proceedings 
 have no bearing on the question of service. The service of such notices 
 must therefore be proved, as any other fact essential to the cause of 
 action, and parol testimony is admissible for the purpose.^** The 
 matter has been aptly summed up in a recent case of WeeTcs v. Sly,^*^ 
 where the court say : "The notice is not a legal process issuing out of 
 court, directed to an officer and to be served by him. Proof of service 
 may be made by any one who has knowledge of the fact.^^** The evi- 
 dence of the person making the service, given in court in a suit be- 
 tween the parties, with an opportunity to the tenant for cross-examina- 
 tion, is competent evidence to prove the fact of service. Whether an 
 ex parte affidavit on a copy of the notice would be competent evidence, 
 we have no occasion to inquire." 
 
 lY. Statutory Provisions. 
 
 In a very large proportion of the states the requirements as to notice 
 necessary to end a tenancy are to a greater or less extent regulated by 
 statute. The statutes on this subject are uniform in purpose but vary- 
 ing in phraseology. A brief summary of the law of notice in the 
 different states, as created by statute and judicial decision, is here 
 given, as the topic is too important to be omitted, and can be dealt 
 with adequately in no other way. 
 
 § 277. Alaska. — Where tenant refuses to pay rent or holds over 
 after the termination of his lease or agreement, he is guilty of unlawful 
 holding after written notice to quit has been served on him. The 
 period of the notice is ten days, except in the case of farming land, in 
 which case it must be served for a period of ninety days.^^^ 
 
 § 278. Arizona, — Tenancies from year to year shall terminate at 
 the end of every year, unless a written permission shall be given for 
 said tenant to remain for a longer period ; and permission so given shall 
 specify the date till which the tenant may remain. Any lease from 
 month to month shall be terminated by the landlord giving at least 
 ten days' previous notice of the termination of such lease. A tenant 
 holding possession against the will of his landlord shall not be con- 
 
 "' Chung Yow v. Hop Chong, 11 ""Citing 2 Greenl. Ev., § 322. 
 Ore. 220, 4 Pac. 326. '■' Carter's Annotated Alaskan 
 
 "^ Weeks v. Sly, 61 N. H. 89. Codes, Part IV, 1025, 1026, 1027.
 
 311 STATUTORY PROVISIONS. [§§ 279, 280 
 
 sidered a tenant at will or by sufferance. No notice is necessary to 
 terminate a lease for a definite time.^^^ 
 
 § 279. Arkansas.— There are no statutes regulating the length of 
 notice required to terminate periodical tenancies, and the courts are 
 therefore governed by the common-law rule. This fixes the length of 
 the notice at six months in tenancies from year to year. But when 
 the recurring periods are for less than a year, the length of notice must 
 be for the full time of the periodical term. Thus to end a tenancy 
 from month to month thirty days' notice is necessary, and notice given 
 fifteen days before the expiration of the term is not sufficient.'^^ 
 Thus it was obvious that a ten days' notice was not a reasonable one 
 to terminate a tenancy from year to year.^' 
 
 154 
 
 § 280. California. — "A tenancy or other estate at will, however 
 created, may be terminated by the landlord's giving notice in writing 
 to the tenant ... to remove from the premises within a period 
 of not less than one month, to be specified in the notice."^^^ This 
 notice should be served by delivering a copy to the tenant personally ; 
 or if he be absent, by leaving a copy to some person of suitable age and 
 discretion and mailing a copy to the tenant; or if the tenant's where- 
 abouts cannot be found, by leaving a notice with the person residing 
 on the premises and posting a copy on a conspicuous place on the 
 premises, and also sending a copy through the mail to the tenant.^^^ 
 Ee-entry can only be made by the landlord after three days' notice, 
 given subsequently to the termination of the tenancy. The action of 
 unlawful detainer "cannot be maintained to recover possession from 
 tenants at will without first terminating the tenancy by giving at least 
 thirty days' notice in writing, and after the termination of the tenancy 
 three days' notice in writing to surrender the possession; and these 
 things must be made to appear by express averments in the com- 
 plaint."^" The death of the landlord terminates a tenancy at will, 
 and thereafter his heirs may maintain ejectment without previously 
 serving a notice to quit or demanding possession of the tenant.^^^ An 
 adverse claim of title also precludes the tenant from setting up his 
 
 1" Rev. St. 1901, § 2694. i=« Code of Civil Procedure, § 1162. 
 
 "= Stewart v. Murrell, 65 Ark. 471, i" Martin v. Spllvalo, 56 Cal. 128; 
 
 47 S. W. 130. King v. Connolly, 51 Cal. 181; Smith 
 
 1'* Bromley v. Aday, 70 Ark. 351, v. Hill, 63 Cal. 51. 
 
 68 S. W. 32. 158 Joy ^ McKay, 70 Cal. 445 11 
 
 "^ Civil Code, §§ 789, 791. Pac. 763.
 
 §§ 281, 282] NOTICE TO QUIT. 312 
 
 right to have the prescribed statutory notice to quit.^^^ Moreover, 
 where a tenant at will assigns his term he terminates the will, and his 
 assignee becomes a tenant at sufferance, who is not entitled to receive 
 a notice to quit.^®" Wherever a landlord is entitled to bring an action 
 of forcible detainer against a tenant at sufferance, having given the 
 requisite notice to quit, he may, instead of proceeding in that action, 
 bring ejectment.^^^ 
 
 § 281. Colorado. — In all cases of tenancy from year to year, the 
 same may be terminated by notice in writing to quit, duly served three 
 months prior to the end of the year; a six months' tenancy may be 
 terminated by service of a similar notice of one month; a monthly 
 tenancy may be terminated by a similar notice of ten days ; a tenancy 
 at will may be terminated by a similar notice of three days ; such notice 
 shall describe the premises, the particular time when the tenancy will 
 terminate, and be signed by the party giving the notice. When the 
 term is certain, no notice to quit is necessary. Notice shall be served 
 by delivering a copy to the tenant or some person on the premises. 
 Posting is allowable when the premises are vacant.^"^ Where a tenant 
 goes into possession without any agreement as to the time for holding, 
 and the rent reserved is payable monthly, the tenancy is from month 
 to month. It could be determined by a notice ten days prior to the 
 end of the month.^®^ But a monthly tenant cannot claim the right 
 of ten days' statutory notice to quit where he has refused to attorn, and 
 has offered to leave and does so.^*** 
 
 § 282. Connecticut. — A lessor desiring to recover possession of 
 leased premises shall give notice to the lessee to quit possession at least 
 ten days before the termination of the lease or before the time specified 
 in the notice for the lessee to quit. A duplicate copy of the notice 
 should be delivered to the lessee or left at his place of residence by an 
 indifferent person. If the lessee fails to comply with the notice a com- 
 plaint in summary process may be brought before a justice of the peace. 
 The ten days' notice to quit may be waived in any written lease.^^^ 
 Parol leases for one year or less are valid. ^*^® Where a oarol lease re- 
 
 "° Simpson v. Applegate, 75 Cal. ^'^ Edmundson v. Preville, 12 Colo. 
 
 342, 17 Pac. 237. App. 73, 54 Pac. 394. 
 
 ^^ McLeran v, Benton, 73 Cal. 329, '" Salomon v. O'Donnell, 5 Colo. 
 
 14 Pac. 879. App. 35, 36 Pac. 893. 
 
 "1 McCarthy v. Yale, 39 Cal. 585. ^« Gen. Laws 1902, 1078, 1079. 
 
 "2 Mills Ann. St. of Colo., §§ 1976, ^«« Gen. Laws 1902, 1089. 
 1977.
 
 313 STATUTORY PKOVISIONS. [§§' 283-285 
 
 serves rent to be paid at stated periods, and such rent remains unpaid 
 nine days after it is due, such lease shall, at the option of the lessor and 
 on notice thereof to the lessee, expire and terminate.^" Month to 
 month and year to year tenancies still exist in this state, but the com- 
 mon-law doctrine of notice was never adopted to its full extent. Judge 
 Ellsworth explains this in an early case,i«8 saying : "Our statute gives 
 the landlord in every case of holding over, a right and the remedy to 
 regain possession in thirty days. This statute has ever been held in 
 Connecticut to do away with the rule of six months^ notice." 
 
 § 283. Delaware. — Unless three months' notice by either landlord 
 or tenant is given prior to the end of a fixed term, the term shall be 
 extended for another year, and all the stipulations of the demise shall 
 continue in force."» There is no qualification or distinction between a 
 resident and a non-resident landlord in the provision of this statute."** 
 
 § 284. District of Columbia.— When real estate is leased for a cer- 
 tain term no notice to quit shall be necessary. A tenancy from month 
 to month or from quarter to quarter may be terminated by a thirty 
 days' notice in writing from either landlord or tenant, said notice to 
 expire on the day of the month from which such tenancy commenced 
 to run. A tenancy at will may be terminated by thirty days' notice in 
 writing by either landlord or tenant. A tenancy at sufferance may be 
 terminated at any time by notice in writing from either landlord or 
 tenant, to take effect on the thirtieth day after the day of the service 
 of the notice. If such notice expires before any periodical installment 
 of rent falls due, the landlord shall be entitled to a proportionate part 
 of such installment. Notice should be served on tenant personally if 
 he can be found, otherwise it is sufficient service to deliver the notice 
 to some person of proper age upon the premises, and in the absence of 
 such tenant or person it is sufficient to post the notice in a conspicuous 
 place upon the leased premises.^^^ 
 
 § 285. Georgia. — "Two months' notice is necessary from the land- 
 lord to terminate a tenancy at will. One month's notice is necessary 
 from the tenant."" ^ Where a tenant was to hold for an uncertain 
 period, to be determined upon the happening of a contingency, he was 
 
 ''' Gen. Laws 1902, 4044. "o Roberts v. Grubb, 5 Houst 
 
 "^'Larkin v. Avery, 23 Conn. 304, (Del.) 461. 
 317, citing 1 Sev. Dig., 95 Dul. ed. "» Code 1902, §§ 1218-1223. 
 
 "^ Laws of Delaware 1893, ch. 120, "^ Code 1895, Vol. II, § 3133. 
 § 4.
 
 §§ 268-388J NOTICE TO QUIT. '314: 
 
 entitled to reasonable warning after the event happened before being 
 required to vacate. ^'^^ A person entering under a contract for a lease 
 was held to become, on refusing to execute the lease, a tenant at will 
 who could be evicted on two months' notice.^'* 
 
 § 286. Idaho. — "A tenancy or other estate at will, however created, 
 
 may be terminated by the landlord's giving notice in writing to the 
 tenant to remove from the premises within a period of not less than 
 one month, to be specified in the notice." "After such notice has been 
 served, and the period specified by such notice has expired, but not be- 
 fore, the landlord may re-enter or proceed according to law to recover 
 possession."^" In all leases from month to month the landlord may, 
 upon giving notice in writing at least fifteen days before the expiration 
 of the month, change the terms of the lease, to take effect at the expira- 
 tion of the month.^^® Service of notice may be on the tenant in person 
 or by leaving it at his residence, between the hours of eight in the 
 morning and six in the evening, with some person of suitable age and 
 discretion. If the tenant's residence be not known, notice may be 
 enclosed in an envelope and put into the postoffice, directed to him.^'^^ 
 
 § 287. Illinois. — "^Vllen the tenancy is for a certain period and 
 the term expires by the terms of the lease, the tenant is then bound to 
 surrender possession, and no notice to quit or demand for possession is 
 necessary." "In all cases of tenancy from year to year sixty days' 
 notice in writing shall be sufficient to terminate the tenancy at the end 
 of the year. The notice may be given at any time within four months 
 preceding the last sixty days of the year." "In all cases of tenancy by 
 the month or for any other term less than one year where the tenant 
 holds over without special agreement, the landlord shall have the right 
 to terminate the tenancy by thirty days' notice, in writing, and to 
 maintain an action for forcible detainer or ejectment." Service may 
 be made by delivering a copy of the notice to the tenant, or by leaving 
 such copy on the premises with some one above the age of twelve years, 
 or by posting a copy on unoccupied premises. The oath of the person 
 serving a notice is prima facie evidence of the facts stated therein.^^^ 
 
 § 288. Indiana. — "Estates at will may be determined by one 
 month's notice, in writing, delivered to the tenant."^^^ Under this 
 
 ^" Sloat v. Rountree, 87 Ga. 470, 13 "" Civil Code 1901, § 2384. 
 S. E. 637. '■' Code Civ. Procedure, § 3711. 
 
 "*Weed V. Lindsay, 88 Ga. 686, 15 "^Rev. St. 1903, ch. 80, §§ 5, 6, 10, 
 
 S. E. 836. 11, 12. 
 
 "= Civil Code 1901, §§ 2373, 2374. "* Burns Ann. St. 1901, § 7088.
 
 315 STATUTORY PROVISIONS. [§' 289 
 
 statute notice is necessary to terminate a tenancy at will.^^" All 
 tenancies from year to year may be determined by at least three 
 months' notice given to the tenant prior to the expiration of the year, 
 and in all periodic tenancies of less than three months duration a 
 notice equal to the interval between such periods shall be sufficient. ^^^ 
 When there is a general tenancy, and the rent is payable at stated 
 times, three months' notice before the end of the year is necessary to 
 terminate the tenancy. ^^^ But a tenancy from year to year may be 
 terminated by a ten days' notice for failure to pay rent.^'*^ "Where 
 the landlord agrees with the tenant to rent the premises to him for a 
 specified period of time ; or where the time for the determination of the 
 tenancy is specified in the contract ; or where a tenant at will commits 
 waste ; or in the case of a tenant at sufferance ; or where by the express 
 terms of the contract rent is to be paid in advance, and the tenant has 
 entered and refuses or neglects to pay the rent ; and in any case where 
 the relation of landlord and tenant does not exist, no notice to quit 
 shall be necessary. "^^* Tenants at sufferance are not entitled to notice 
 to quit.^*° Notice should be served on the tenant in person, or if he 
 cannot be found it should be served by delivering a copy to some per- 
 son of proper age and discretion, residing on the premises, having first 
 made known to such person the contents thereof ; and if no such person 
 can be found then notice may be posted on the premises.^®*^ Service of 
 notice may be made and proved by a constable.^^^ 
 
 § 289. Iowa. — Thirty days' notice in writing must be given by 
 either party before he can terminate a tenancy at will, but when rent 
 is reserved payable at intervals of less than thirty days, the length of 
 notice need not be greater than such interval. In case of tenants occu- 
 pying farms, the notice must fix the termination of the tenancy to take 
 place on the first day of March, except in cases of mere croppers, whose 
 leases shall be held to expire when the crop is harvested. But where 
 an agreement is made fixing the time of the termination of the tenancy, 
 whether in writing or not, it shall cease at the time agreed upon with- 
 out notice.^^^ The provision regarding a notice to fix the termination 
 of the tenancy of agricultural lands has no application when there is an 
 
 ''" Coomler v. Hefner, 86 Ind. 108. "= Cargar v. Fee, 140 Ind. 507, 39 
 
 '" Burns' Ann. St. 1901, § 7090. N. E. 93. 
 
 ''= Elliott V. Stone City Bank, 4 i'" Burns' Ann. St. 1901, § 7095. 
 Ind. App. 155. "^Epstein v. Greer, 78 Ind. 348; 
 
 '''Leary v. Meier, 78 Ind. 393. Cressler v. Williams, 80 Ind. 366. 
 "'Burns' Ann. St. 1901, § 7094. "'Ann. Code 1897, § 2991.
 
 290] 
 
 NOTICE TO QUIT. 
 
 316 
 
 express agreement. ^^^ A field tenant or cropper has no right of pas- 
 turage either before or after the crop is harvested. ^^^ The thirty days' 
 notice in writing to terminate a tenancy at will is not required where 
 the tenant does not occupy the premises with the assent of the landlord 
 after the termination of the written lease.^^^ Where a tenancy is to 
 cease at an agreed time, the tenant is not entitled to a thirty days' 
 notice to quit.^®^ An employe occupying premises belonging to his 
 employer after the termination of the service is entitled to no greater 
 rights than a tenant holding over after the expiration of his term.^'*^ 
 
 § 290. Kansas. — "Where the time for the termination of a tenancy 
 is specified in the contract, or where a tenant at will commits waste, 
 or in the case of a tenant at sufferance, and in any case where the rela- 
 tion of landlord and tenant does not exist, no notice to quit shall be 
 necessary." "All tenancies from year to year may be determined by at 
 least three months' notice, in writing, given to the tenant prior to the 
 expiration of the year.""* This last section in effect dispenses with 
 the notice to the landlord, although the lack of notice must operate as 
 an injustice to him in many cases."^ "In case of tenants occupying 
 
 "« Johnson v. Shank, 67 Iowa 115, 
 24 N. W. 749; Waller v. Vermitt, 97 
 Iowa 518, 66 N. W. 763. In the for- 
 mer case Reed, J., said: "This pro- 
 vision, however, does not establish 
 a rule for the government of parties 
 in making their contract. It simply 
 fixes a time at which, in the absence 
 of express agreement to the con- 
 trary, the lease shall terminate. 
 The lease in question terminated on 
 that day, not because of any stipula- 
 tion that it should terminate at that 
 time, but because the parties had 
 failed to agree that it should termi- 
 nate on another date." 
 
 ""Kyte V. Keller, 76 Iowa 34, 39 
 N. W. 928; Tantlinger v. Sullivan, 80 
 Iowa 218, 45 N. W. 765. 
 
 1" McClelland v. Wiggins, 109 
 Iowa 673, 81 N. W. 156; Kellogg v. 
 Groves, 53 Iowa 395, 5 N. W. 517. 
 
 ^ Shuver v. Klinkenberg, 67 Iowa 
 544, 25 N. W. 770. 
 
 "' Grosvenor v. Henry, 27 Iowa 
 269. Where tenant entered for the 
 
 remainder of an unexpired term un- 
 der the mistaken belief they could 
 get a term for the ensuing year, it 
 was held that they did not enter by 
 stealth, but were entitled to notice 
 to quit like any other tenants hold- 
 ing over after the expiration of their 
 term. Gifford v. King, 54 Iowa 525, 
 6 N. W. 735. 
 
 ^^Gen. St. 1897, ch. 121, §§ 6, 7. 
 
 "= Nelson v. Ware, 57 Kan. 670, 47 
 Pac. 540, reversing 4 Kan, App. 258, 
 45 Pac. 923. In this case the court 
 say: "The language of the statute 
 is clear and unequivocal in defining 
 what is necessary to determine a 
 tenancy from year to year, and the 
 only requirement is a written notice 
 for at least three months to the ten- 
 ant. In effect it dispenses with no- 
 tice to the landlord, although the 
 lack of notice must operate as an in- 
 justice to him in many cases. It is 
 an explicit statute, however, which 
 covers the subject and leaves no 
 room for construction."
 
 317 STATUTOKY PROVISIONS. [§§ 291, 293 
 
 and cultivating farms, the notice must fix the termination of the 
 tenancy to take place on the first day of March." "Thirty days' notice 
 in writing js necessary to be given by either party before he can termi- 
 nate a tenancy at will, or from one period to another of three months 
 or less ; but where in any case rent is reserved payable at intervals of 
 less than thirty days, the length of notice need not be greater than 
 such interval between the days of payment."^^^ 
 
 The conduct of the parties may be such as to waive actual written 
 notice in case the tenant vacates the premises. Such was the effect of 
 accepting payment of a judgment recovered for one month's rent after 
 the end of the tenant's occupancy."^ 
 
 Notice may be served on the tenant, or if he cannot be found, by 
 delivering a copy to some person over twelve years of age residing on 
 the premises, having first made known the contents to such person.^^* 
 
 § 291. Kentucky. — "A tenancy at will or by sufferance may be 
 terminated by the landlord giving one month's notice, in writing, to 
 the tenant requiring him to remove. Wlien a tenant enters or holds 
 premises by virtue of a contract in which it is stipulated that he is to 
 labor for his landlord, and he fails to begin such labor, or if, having 
 begun, without good cause fails to comply with his contract, his right 
 to the premises shall at once cease, and he shall abandon them without 
 demand or notice."^'''' A tenant under contract by which he is to culti- 
 vate crop, landlord getting part of proceeds, is a "cropper" within the 
 meaning of this section, and upon his fail are to perform the contract 
 his landlord may maintain forcible detainer proceedings against 
 him.2«o 
 
 The statutes modifying year to year and month to month tenancies 
 have done away with the common law requirements for six months' 
 notice in the former and one month's notice in the latter kind of hold- 
 ings.^^-^ 
 
 § 292. Louisiana. — "The parties must abide by the agreement as 
 fixed at the time of the lease. If no time for its duration has been 
 agreed on, the party desiring to put an end to it must give notice in 
 writing to the other at least fifteen days before the expiration of the 
 month which has begun to run."^*'^ A lease from month to month con- 
 
 ''"Gen. St. 1897, ch. 121, §§ 8, 9. ='"'Wood v. Garrison, 23 Ky. L. R. 
 
 '"" Betz v. Maxwell, 48 Kan. 142, 29 295. 
 Pac. 147. ">' See § 238, and St. 1903, §§ 2295, 
 
 "' Gen. St. 1897, ch. 121, § 12. , 2296. 
 
 '""St. 1903, §§ 2326, 2327. ^"^ Merrick's Rev. Civ, Code 1900, 
 
 Art. 2686.
 
 § 293] NOTICE TO QUIT. 318 
 
 tinues till notice is given. Lessee s mere abandonment does not termi- 
 nate the lease.^"^ 
 
 § 293. Maine. — "Tenancies at will may be determined by either 
 party by thirty days' notice in writing for that purpose, given to thq 
 other party, and not otherwise save by mutual consent, excepting case^ 
 where the tenant, if liable to pay rent, shall not be in arrears at the 
 expiration of the notice, in which case the thirty days' notice aforesaid 
 shall be made to expire upon a rent day. Either party may waive in 
 writing the thirty days' notice or any part thereof. When the tenancy 
 is terminated the tenant is liable to the process of forcible entry and 
 detainer without further notice. . ." The wording of this statute has 
 been said to be awkward if not obscure.^"^ The construction put upon 
 it by the court was that the "expiration of the thirty days' notice to 
 terminate the lease at will must be coincident in point of time with a 
 pay day of rent. Such notice given by either side will be valid. But 
 there is an exception to this requirement so far as a termination by the 
 landlord is concerned. His notice to the tenant may be thirty days 
 without respect to any pay day, if when the notice expires the tenant 
 shall be in any arrears of paying his rent. That is, it matters not 
 whether any rent becomes payable on such particular day or not, if any 
 rent previously due then remains unpaid." No notice to quit is neces- 
 sary when the holding is for a fixed term, though such fixed term arises 
 from the exercise of a power conferred by a previous lease to make an 
 extension. ^°^ The common law doctrine that a tenancy at will was 
 terminated by a transfer of the landlord's estate in force before the 
 passage of this act^°^ remains the law since its passage.^"* The statute 
 had reference to the determination of tenancies by the will and acts 
 of the parties, and not by operation of law. The alienee does not be- 
 come the lessor at will of the former lessee at will, nor does the former 
 tenant at will become tenant to the alienee. In conformity with this 
 construction of the statute it should be held that a tenancy at will was 
 terminated by a transfer of the tenant's interest. Such was not the 
 result reached in an earlier case where it was said that this statute 
 superseded the mode of determining such tenancies at common law.*"* 
 
 =°'Waples V. City of New Orleans, =<"Esty v. Baker, 50 Me. 325. 
 
 28 La. Ann. 688. '"' Seavey v. Cloudman, 90 Me. 536, 
 
 '"^Rev. St. 1903, ch. 96, § 2; Rev. 38 Atl. 540. Con^ro, Young v. Young, 
 
 St. 1883, ch. 94, § 2. 36 Me. 133. 
 
 '"'Wilson V. Prescott, 62 Me. 115, =°^ Cunningham v. Horton, 57 Me. 
 
 per Peters, J. 420. 
 
 =»« Willoughby v. Atkinson &c. Co., 
 93 Me. 185, 44 Atl. 612. 
 
 1
 
 319 STATUTORY PROVISIONS. [§§ 294, 295 
 
 Where a tenant, without written notice or the consent of the land- 
 lord, abandons the possession of premises verbally leased to him his 
 liability for rent continues for whatever period may elapse before the 
 tenancy becomes terminated by written notice, or until possession of 
 the premises may be accepted by the landlord.^^** 
 
 § 294. Maryland. — Where real estate is leased for a definite term 
 or at will and the lessor desires to repossess himself of the same he shall 
 give notice one month before the expiration of the term or determina- 
 tion of the will ; and if the tenant refuses to vacate he may make com- 
 plaint to a justice of the peace, etc. This section applies to periodic 
 tenancies, except that in cases of tenancy from year to year a notice in 
 writing shall be given six months before the current year of the ten- 
 ancy; and in weekly or monthly tenancies a notice in writing of one 
 week or one month, as the case may be, shall be given. Where a tenant 
 has given notice by parol of sufficient duration to terminate his periodic 
 holding, the landlord may prove such parol notice and insist that the 
 tenancy end and the tenant vacate. The provisions as to notice do not 
 apply in Baltimore city.^^^ 
 
 § 295. Massachusetts. — "Estates at will may be determined by 
 either party by three months' notice in writing to the other party ; and 
 if the rent reserved is payable at periods of less than three months, 
 the time of such notice shall be sufficient if it is equal to the interval 
 between the days of payment ; and in all cases of neglect or refusal to 
 pay the rent due from a tenant at will fourteen days' notice to quit, 
 given in writing by the landlord to the tenant, shall be sufficient to 
 determine the tenancy."- ^^ As tenants at sufferance are expressly 
 omitted from this statute, the common law rule would prevail, and 
 such tenants would not be entitled to any notice to quit.^^^ The re- 
 
 "" Rollins V. Moody, 72 Me, 135. by three months' notice, with some 
 ^"Pub. Gen. Laws 1888, Art. 53, modification where the rent was 
 §§ 1, 6, 7. payable more frequently than quar- 
 ="^ Rev. Laws 1902, ch. 129, § 12. terly. But the Rev. Sts., c. 60, § 26, 
 "^ Kinsley v. Ames, 2 Mete, which provide that estates at will 
 (Mass.) 29, 31. Chief Justice Shaw may be determined by three months' 
 says: "By St. 1825, c. 89, § 4, com- notice, designedly omit tenancies at 
 monly called the landlord and ten- sufferance because, as the commis- 
 ant act, tenants at sufferance and sioners say in their note to this sec- 
 tenants at will were put on the same tion, so long as the party continues 
 footing in regard to notice; and it to be a mere tenant at sufferance, 
 was provided that such tenancies his estate is and ought to be deter- 
 might be terminated by either party minable at any moment, at the
 
 § 296] NOTICE TO QUIT. 320 
 
 quirement for fourteen days' notice has not received a technical con- 
 struction, and if the notice is served more than fourteen days before 
 the action is brought that is sufficient. Thus where a notice required 
 a tenant to quit within fourteen days from date and was served on the 
 day it was dated, the court would not entertain an objection that it 
 was not a proper and valid notice.-^* 
 
 § 296. Michigan. — "All estates at will or by sufferance may be 
 determined by either party by three months' notice given to the other 
 party ; and when the rent reserved in a lease is payable at periods of 
 less than three months, the time of such notice shall be sufficient if it 
 be equal to the interval between the times of payment."^^^ It is not 
 necessary to specify in the notice whether the holding is at will or by 
 sufferance.-^*' A person in possession of land becomes a tenant at 
 sufferance if the owner suffers him to remain in possession a sufficient 
 length of time to imply an intentional acquiescence in the occupancy. 
 Although express consent to the holding is not necessary, implied con- 
 sent is necessary.^^'^ A tenant who wrongfully holds over after the 
 termination of his lease does not acquire, by a brief delay, equities 
 entitling him to a three months' notice to quit.^^^ In cases of tenancy 
 from year to year a notice to quit, given at any time, shall be sufficient 
 to terminate the holding at the expiration of one year from the time 
 of the service of such notice.^^^ A notice shall not be void by reason 
 of its mentioning a day for the termination of the tenancy not corre- 
 sponding to the conclusion or commencement of any rent period, but 
 in any such case the notice shall be held to terminate the tenancy at 
 the end of a period equal in time to that in which the rent is made pay- 
 able.--'' An objection to the length of a notice given to terminate a 
 
 pleasure of the landlord. The de- "" Comp. Laws 1897, § 9257; Grady 
 
 fendant therefore was not entitled v. Warrell, 105 Mich. 310, 63 N. W. 
 
 to notice to quit. He was precisely 204. 
 
 within the provision of the statute, ^=" Comp. Laws 1897, § 9257. Prior 
 
 which gives the process when the to the amendment of 1885 it was 
 
 possession of lands or tenements is held that in order to terminate a 
 
 lawfully held by force." tenancy at will by a notice of less 
 
 "* Johnson v. Stewart, 11 Gray than three months, the notice must 
 
 (Mass.) 181. be for the full time of the rent in- 
 
 "" Comp. Laws 1897, § 9257. terval, and must terminate on one 
 
 -^® Bennett v. Robinson, 27 Mich, of the days fixed for the payment of 
 
 26. rent. Woodrow v. Michael, 13 Mich. 
 
 =" School District v. Batsche, 106 187, 190; Huyser v. Chase, 13 Mich. 
 
 Mich. 334, 64 N. W. 196. 98. 
 
 "' Benfey v. Congdon, 40 Mich. 
 283, 286. 
 
 I
 
 321 STATUTORY PROVISIONS. [§ 297 
 
 year to year tenancy can not be raised for the first time on an appeal 
 to the Supreme Court, when at the time it is made the statutory year 
 has elapsed since the giving of the notice. ^^^ In eases of neglect or 
 refusal to pay rent on a lease at will or otherwise, seven days' notice to 
 quit, given in writing by the landlord to the tenant, shall be sufficient 
 to determine the lease.^^^ A tenant who has refused to pay rent until 
 repairs are made, and is accordingly notified to quit, has a right to 
 regard the lease as ended, and if the landlord then agrees to make the 
 repairs, provided the tenant will stay, the lease is a new one.^^^ 
 
 § 297. Minnesota. — "Estates at will may be determined by either 
 party by three months' notice in writing for that purpose, given to the 
 other party ; and when the rent reserved is payable at periods of less 
 than three months, the time of such notice shall be sufficient if it is 
 equal to the interval between the times of payment; and in all cases 
 of neglect or refusal to pay the rent due on a lease at will fourteen days' 
 notice to quit, given in writing by the landlord to the tenant, is 
 sufficient to determine the lease.^^* Although this statute does not ex- 
 pressly mention tenancies from year to year, it was held to apply to 
 them, as such holdings were one species of tenancy at will according 
 to the common law idea.^^^ But this section had reference only to the 
 length of the notice, and does not otherwise change the existing rules 
 of law as to when the notice should terminate. For example, where 
 by implication the tenancy is from quarter to quarter or from month 
 to month, the rent being payable quarterly or monthly, the notice must 
 still terminate with the quarter or month; and where the tenancy is 
 from year to year the notice must terminate with a year, although the 
 length of it may now be shorter than six months, as formerly required 
 at common law."^-*^ 
 
 A tenancy at will where the rent is payable monthly may be deter- 
 mined by a month's notice to quit by either landlord or tenant, but the 
 
 "'Ganson v. Baldwin, 93 Mich. Smith v. Bell, supra, we have come 
 
 217, 53 N. W. 171. to the conclusion, upon fuller ex- 
 
 =" Comp. Laws 1897, § 9257. amination, that the provisions of 75, 
 
 "'"Conkling v. Tuttle, 52 Mich. §40, in relation to notices to quit, 
 
 630, 18 N. W. 391. were intended to apply to all estates 
 
 "* Stat. 1894, § 5873. which do not terminate themselves 
 
 "= Hunter v. Frost, 47 Minn. 1, 49 without notice, and that for the pur- 
 
 N. W. 327, overruling Smith v. Bell, pose of such notices a tenancy from 
 
 44 Minn. 524, 47 N. W. 263. In the year to year is a tenancy at will." 
 principal case it was said: "Not- ""Hunter v. Frost, 47 Minn. 1, 49 
 
 withstanding what was decided in N. W. 327. 
 Jones L. & T.— 21
 
 §§ 298, 299] NOTICE to quit. 323 
 
 notice must regularly terminate with some month counting from the 
 beginning of the tenancy.^^^ 
 
 The statute relating to service of notice in civil actions does not 
 apply to the service of a notice to quit.*^* 
 
 § 298. Mississippi. — "Notice to quit shall be necessary only where 
 the term is not to expire at a fixed time. In all cases in which a notice 
 is required to be given by the landlord or tenant to determine a tenancy, 
 two months' notice, in writing, shall be given where the holding is 
 from year to year, and one month's notice shall be given where the 
 holding is by the half year or quarter year ; and where the letting is by 
 the month or by the week one week's notice, in writing, shall be 
 given."^^^ This statute provides only for notice to terminate tenancies 
 from period to period. It makes no express provision requiring that a 
 tenancy strictly at will shall be terminated by notice, for the first sen- 
 tence is only negative in its effect. Such was the result reached when 
 this question arose in a case where the occupancy had been by consent 
 but without the payment of rent.^^° And though the decision was 
 rested on the ground that there was no estate but a mere license, this 
 argument would apply with equal force in the case of a strict tenancy 
 at will. So it is the opinion of the writer that the statute in this state 
 leaves the common law doctrine in regard to notice to terminate estates 
 at will and by sufferance untouched. It follows that such holdings can 
 be terminated without notice, the only requirement being that a rea- 
 sonable time be given the tenant to remove his effects. 
 
 § 299. Missouri. — "Either party may terminate a tenancy from 
 year to year by giving notice, in writing, of his intention to terminate 
 the same, not less than sixty days next before the end of the year. A 
 tenancy at will or by sufferance or for less than one year may be termi- 
 nated by the person entitled to possession by giving one month's notice, 
 in writing, to the person in possession requiring him to remove. No 
 notice to quit shall be necessary from or to a tenant whose term is to 
 end at a certain time, or when by special agreement notice is dispensed 
 with."^^^ A month's notice is necessary to terminate the tenancy 
 whether it be at will or by sufferance ;^^^ but by virtue of this statute 
 
 =^ Grace v. Michand, 50 Minn. 139, =^ Ann. Code 1892, § 2544. 
 
 52 N. W. 390; Finch v. Moore, 50 ^=° Johns v. McDaniel, 60 Miss. 486. 
 
 Minn. 116, 52 N. W. 384; Eastman v. '^^ Rev. St. 1899, §§ 4109-4111. 
 
 Vetter, 57 Minn. 164, 58 N. W. 989. "' Tarlotting v. Bokern, 95 Mo. 
 
 ^^ Alworth v. Gordon, 81 Minn. 541, 8 S. W. 547. 
 445, 84 N. W. 454. 
 
 ti 
 
 i
 
 323 STATUTORY PROVISIONS. [§§ 300-302 
 
 any tenancy for less than one year may be terminated by one month's 
 notice."^ A tenant is not bound by casual remarks made by his land- 
 lord about an increase of rent ; and a mere verbal notice to a tenant 
 from year to year is not enough to make him liable for increased rent 
 where he holds over.^^* 
 
 § 300. Montana. — "A tenancy or other estate at will, however 
 created, may be terminated by the landlord's giving notice in writing 
 to the tenant to remove from the premises within a period of not less 
 than one month, to be specified in the notice. After such notice has 
 been served and the period specified by such notice has expired, but 
 not before, the landlord may reenter or proceed according to law to 
 recover possession."^^^ Service of the notice may be made personally 
 on the tenant, or it may be made by leaving the notice at his residence, 
 between the hours of eight in the morning and six in the afternoon, 
 with some person of suitable age and discretion. If the residence be 
 not known, service may be made by putting the notice, enclosed in an 
 envelope, into the postoffice, directed to the tenant.-^* 
 
 § 301. Nevada. — In all leases from month to month, the land- 
 lord may, upon giving notice in writing at least fifteen days before the 
 expiration of the month, change the terms of the lease, to take effect 
 at the expiration of said month. Such notice shall of itself be ef- 
 fectual to establish the terms specified, if the tenant continues to hold 
 the premises. Provided, That a tenancy from month to month may 
 be terminated by the landlord giving notice of such termination ten 
 days prior to the expiration of the month.^^^ 
 
 § 302. New Hampshire. — "Any lessor or owner of lands or tene- 
 ments may at any time determine any lease at will or tenancy at suffer- 
 
 "'Berner V. Gebhardt, 87 Mo. App. App. 529. A tenant from month to 
 
 409. Where one of the parties to a month is entitled only to a month's 
 
 monthly renting attempts to termi- notice to quit, even though he may 
 
 nate the tenancy, the written notice have a right of action in equity to 
 
 must be served on the other party compel the execution of a lease for a 
 
 before the beginning of the succeed- given period. Such defense can not 
 
 ing or last rental month. Gunn v. be set up in a justice's court. Grue- 
 
 Sinclair, 52 Mo. 327; Corby v. Brill newald v. Schaales, 17 Mo. App. 324. 
 
 &c. Co., 76 Mo. App. 506. Where "' Witte v. Witte, 6 Mo. App. 488. 
 
 month to month tenancy began on "= Civil Code 1895, §§ 1240, 1241. 
 
 the first of the month, a notice to ""Code of Civil Procedure 1895, 
 
 quit served, Feb. 10th, requiring ten- § 1831. See § 280, post, 
 
 ant to quit March 31, was held suf- "' Comp. Laws 1900, §§ 3827, 3838. 
 ficient. Snyder v. Parker, 75 Mo.
 
 § 303] NOTICE TO QUIT. 324 
 
 ance by giving to the tenant or occupant a notice in writing to quit the 
 same at a day named therein. If the tenant or occupant refuses to 
 pay the rent due and in arrear upon demand, seven days' notice shall 
 be sufficient. If the rent is payable more frequently than once in 
 three months, whether such rent is due or not due, thirty days' notice 
 shall be sufficient, and three months' notice shall be sufficient in all 
 cases. If a lessee violates the conditions of a written lease, seven days' 
 notice shall be sufficient. If a lessee holds over after the expiration of 
 a definite written lease, seven days shall be sufficient. A lessee may 
 terminate his lease by notice in writing in the same manner as the 
 lessor."^^^ The notice requisite under the statute to determine a ten- 
 ancy at will may require the tenant to quit on any day therein named ; 
 it need not require the tenant to quit on the last day of the year, month 
 or week of the tenancy.^^^ Seven days' notice to quit is not sufficient 
 to terminate a tenancy at will unless there has been a demand of the 
 precise amount of rent, due and in arrears, and a neglect or refusal to 
 pay it.2*o 
 
 § 303. New Jersey. — The statute provides "that in all cases where 
 any tenant is or may be entitled by law to notice to quit the premises 
 by him holden, in order to determine his tenancy, three months' notice 
 to quit as aforesaid shall be deemed and taken to be sufficient."^'*^ The 
 tenant is bound to quit the premises without notice when his lease ex- 
 pires. ^*^ But in all cases of tenancy from year to year or of uncertain 
 duration the tenant must have notice.^*^ A tenant at sufferance is 
 not entitled to notice at common law, and under the landlord and 
 tenant act a previous demand of possession only is required as a condi- 
 tion upon which a summons may issue.^** It is further provided in a 
 supplemental section that in any letting where no term is agreed upon 
 and the rent is payable monthly, so long as the tenant pays the rent as 
 agreed it shall be unlawful for the landlord to dispossess the tenant 
 before the first of April succeeding the commencement of the letting 
 
 '^Publ. St. 1901, ch. 246, §§ 2-6. for rent. Whitney v. Swett, 22 N. 
 
 "° Stickney v. Burke, 64 N. H. H. 10. 
 
 377, 10 Atl. 852; Currier v. Perley, =" Gen. St. 1895, p. 1921, § 29. 
 
 24 N. H, 219; Hazeltine v. Colburn, '"Decker v. Adams, 12 N. J. L. 99. 
 
 31 N. H. 466, 471. ''^^Ben v. Drake, 14 N. J. L. 523; 
 
 '"Nowell V. Wentworth, 58 N. H. Van Campden v. Depue, 11 N. J. L. 
 
 319. After giving a statutory seven 409; Den v. Snowhill, 23 N. J. L. 
 
 days' notice to quit, landlord may 447. 
 
 waive the rights he thereby acquires '" Moore v. Smith, 56 N. J. L. 446, 
 
 to terminate the tenancy, as by an 29 Atl. 159. 
 unconditional acceptance of a surety
 
 325 STATUTORY PROVISIONS. [§ 304 
 
 without giving the tenant three months' notice in writing to quit.^'*^ 
 This latter section does not apply where the letting is for a definite 
 term, for "one month and a monthly term thereafter." Thus in one 
 case the monthly term commenced on the tenth day of November, and 
 it was held that a notice to quit on the first day of April following was 
 insufficient.^^® The date set for quitting should have corresponded to 
 the time of the commencement of the tenancy. 
 
 § 304. New York. — "A tenancy at will or by sufferance, however 
 created, may be terminated by a written notice of not less than thirty 
 days, given in behalf of the landlord to the tenant. The notice must 
 be given to the tenant or to a person of suitable age and discretion, 
 residing upon the premises, or if neither the tenant nor such person 
 can be found, the notice may be posted on the premises. At the ex- 
 piration of thirty days after the service of such notice the landlord 
 may enter or maintain ejectment."^*'^ An exception to the general rule 
 in regard to the requirement for notice to terminate a year to year 
 tenancy is found in the law of New York. The statute authorizing 
 summary process for the eviction of tenants provided for notice to ten- 
 ants at will or by sufferance, but no requirement of notice was pro- 
 vided in the case of tenants for one or more years. So that a tenant 
 from year to year, though in ejectment he was entitled to six months' 
 notice, yet in summary proceedings was not entitled to any notice.^*^ 
 In regard to this point Mr. Justice Balcom, a justice of the Supreme 
 Court, reasons as follows:-^'' "Now, as no notice to quit is required 
 by the Eevised Statutes to be given to a tenant for one or more years 
 to authorize proceedings for his removal, none need be given him ; and 
 as a tenant from year to year is a tenant for one or more years, he may 
 be proceeded against in a summary manner for holding over after the 
 expiration of his term without six or one month's previous notice." It 
 remained for the Court of Appeals to extend this doctrine one step 
 further and hold that a tenant from year to year could vacate the 
 premises at the expiration of any year of his holding without giving 
 
 =*=Gen. St. 1895, p. 1924, § 37. =«'Gen. Laws 1901, ch. 46, art. 6, 
 
 ==*» Pinkelstein v. Herson, 55 N. J. § 198. 
 
 L. 152, 26 Atl. 688. The court left ^*^ Nichols v. Williams, 8 Cow. (N. 
 
 the construction of this supple- Y.) 13. 
 
 mental act to a future occasion. The ^*^ In Parke v. Castle, 19 How. Pr. 
 
 statute in question had been char- (N. Y.) 29, the court fails to re- 
 
 acterized as a "curious act" by Mr. member that by the old common law 
 
 Justice Reed in Shaw v. Schietinger, a tenancy from year to year was a 
 
 51 N. J. L. 152, 16 Atl. 186. modified tenancy at will.
 
 §§ 305-307] NOTICE TO QUIT. 326 
 
 any previous notice to quit, and escape any further obligation to pay 
 rent. The court say : ". . . The landlord is not bound to give the ten- 
 ant notice to leave even for the purpose of instituting summary pro- 
 ceedings to recover possession of the premises. If such is the case in re- 
 spect to the landlord, why should it not be so as to the tenant ? Their 
 rights and duties are correlative and reciprocal." And again at another 
 part of the opinion it is said : "At the end of the year thus hired by 
 implication the rights and the remedies which existed at the end of the 
 former term are again revived. Those rights are, as we have seen, 
 that the landlord may remove the tenant without notice, and the tenant 
 may quit the possession without giving the landlord any notice of his 
 intention to do so."^^" 
 
 § 305. North Carolina. — A tenancy from year to year may be 
 terminated by a notice to quit, given three months or more before the 
 end of the current year of the tenancy ; a tenancy from month to month 
 by a like notice of fourteen days ; a tenancy from week to week, of two 
 days.^^^ Under this statute a mere demand for possession of a year 
 to year tenant is insufficient, but it is sufficient to give a written or 
 verbal notice to quit three months before the expiration of the current 
 year.^^- 
 
 § 306. North Dakota. — A tenancy or other estate at will, however 
 created, may be terminated by the landlord's giving notice to the tenant 
 in the manner prescribed to remove from the premises within a period 
 specified in the notice of not less than one month. The notice must 
 be in writing, and must be served by delivering the same to the tenant 
 or to some person of discretion residing on the premises. If neither 
 can be found, the notice may be posted on the premises. After the 
 period specified by such notice has expired, but not before, the land- 
 lord may reenter or proceed according to law to recover possession. ^^^ 
 
 § 307. Ohio. — There are no statutes in this state in regard to the 
 requirements for notice to terminate tenancies. In ejectment a statute 
 requires ten days' notice before the commencement of the term at which 
 the appearance of the defendant in the ejectment suit is to be entered ; 
 and in forcible detainer three days' notice before the commencement 
 of the suit ; but this is a different thing from notice to quit.^^'* The 
 
 ^=° Adams v. City of Cohoes, 127 N. ^'^ Civil Code 1895, §§ 3346-3348. 
 Y. 175, 28 N. E. 25. '=^ Gladwell v. Holcomb, 7 Ohio Cir. 
 
 '=1 Code 1883, Vol. I, § 1750. Dec. 369, quoting from Walker's Am. 
 
 '"Vincent v. Corbin, 85 N. Car. Law, § 133; Bates Ann. St. 1904, 
 
 108. § 6602.
 
 327 STATUTORY PROVISIONS. [§ 308 
 
 Ohio court feels itself bound by the technical rules of common law only 
 so far as they are applicable to the changed conditions in a new coun- 
 try.^^^ So it was held in regard to a store-room rented for mercantile 
 purposes that the English rule requiring six months' notice to termi- 
 nate a tenancy from year to year did not apply. The court adopted the 
 rule that notice must be given a reasonable time before the expiration 
 of the year. In cases of doubt the question of reasonableness should be 
 left to the jury. But four months was a reasonable time as a matter 
 of law, and the trial court was justified in so instructing the jury.^^® 
 
 § 308. Oregon. — "All estates at will or by sufferance may be de- 
 termined by either party by three months' notice, in writing, given to 
 the other party ; and when the rent reserved in a lease at will is pay- 
 able at periods of less than three months, the time of such notice shall 
 be sufficient if it be equal to the interval between the times of pay- 
 ment." In cases of neglect to pay rent on a lease at will, fourteen 
 days' notice to quit, given in writing by the landlord to the tenant, 
 shall be sufficient to determine the lease.^^'^ Twelve years after this 
 statute was enacted the forcible entry and detainer act was thrust into 
 the statute without regard to its harmony or fitness with the other pro- 
 visions.^^^ This act provided that "the following shall be deemed 
 cases of unlawful holding by force within the meaning of this chapter : 
 1. When the tenant or person in possession of any premises shall fail 
 or refuse to pay any rent due on the lease or agreement under which 
 he holds, or deliver up possession of said premises for ten days after 
 demand made in writing for such possession. 2. When, after a notice 
 to quit as provided in this chapter, any person shall continue in the 
 possession of any premises at the expiration of the time limited in the 
 lease or agreement under which such person holds, or contrary to any 
 condition or covenant thereof, or without any written lease or agree- 
 ment therefor."^^® In regard to these two acts it was held that the 
 provisions of the latter section could only be enforced as against a 
 tenant who is wrongfully in possession of the demised premises, and a 
 remedy under this act can not be taken against a tenant from year to 
 year until the tenancy is determined by the notice provided for in the 
 
 ^'"^ Bloom V. Richards, 2 Ohio St. '" Bell. & C. Ann. Codes & St. 1902, 
 
 387; Kerwhacker v. Cleveland &c. R. § 5390. 
 
 Co., 3 Ohio St. 172; Drake v. Rogers, ^""^ Rosenblat v. Perkins, 18 Ore. 
 
 13 Ohio St. 21, 36. 156, 22 Pac. 598. 
 
 ='« Gladwell v. Holcomb, 7 Ohio Civ. "-"» Bell. & C. Ann. Codes & St. 1902, 
 
 Dec. 369. One of three judges dis- § 5755. 
 sented.
 
 §§ 309, 310] NOTICE TO QUIT. 328 
 
 earlier statute or by agreement of the parties. A tenant, therefore, in 
 possession of demised premises without any written lease or agree- 
 ment can not be dispossessed under this act until he is in the wrong.^^" 
 Where the letting is for less time than one year the period for the 
 notice is fixed by the manner of paying the rent. Thus if the rent is 
 paid monthly, a month's notice is required.^^^ A notice to quit should 
 be served by being left with the tenant or person in possession of the 
 premises. Proof of service may be by parol.^^* 
 
 § 309. Oklahoma Territory. — "Thirty days' notice in writing is 
 necessary to be given by either party before he can terminate a tenancy 
 at will or from one period to another of three months or less ; but where 
 in any case rent is reserved, payable at intervals of less than thirty 
 days, the length of notice need not be greater than such interval be- 
 tween the days of payment. All tenancies from year to year may be 
 determined by at least three months' notice, in writing, given to the 
 tenant prior to the expiration of the year. In the case of tenants oc- 
 cupying and cultivating farms, the notice must fix the termination of 
 the tenancy to take place on the first day of January." Notice to quit 
 may be given in case of non-payment of rent, the duration of the notice 
 being ten days where rent is payable at intervals of three months or 
 longer and five days in other cases. "When the time for the termina- 
 tion of a tenancy is specified in the contract or where a tenant at will 
 commits waste, or in the case of a tenant by sufferance, and in any case 
 where the relation of landlord and tenant does not exist, no notice to 
 quit shall be necessary." Notice may be served on the tenant, or, if 
 he can not be found, by delivering the same to some person over twelve 
 years of age, residing on the premises, having first made known to such 
 person the contents thereof.^® ^ In a tenancy from year to year no 
 notice is necessary from the tenant to the landlord. ^^* 
 
 § 310. Pennsylvania. — It is provided in the landlord and tenant 
 act that a landlord may require his tenant or lessee to remove from 
 the premises, and if such tenant or lessee shall refuse to comply there- 
 with in three months after such request to him is made, the landlord 
 
 '"^ Rosenblat v. Perkins, 18 Ore. topic of notice is touched on and 
 
 156, 22 Pac. 598. partially covered a second time in 
 
 =" Rosenblat v. Perkins, 18 Ore. §§ 4047-4049. 
 
 156, 22 Pac. 598. =" Nelson v. Ware, 57 Kan. 670, 
 
 ="= Chung You V. Hop Chong, 11 47 Pac. 540, modifying 4 Kan. App. 
 
 Ore. 220, 4 Pac. 326. 258, 45 Pac. 923. 
 
 ^^ Rev. St. 1903, §§ 3323-3329. The
 
 329 STATUTORY PEOVISIONS. [§ 311 
 
 may make a complaint and have a warrant issued in the nature of a 
 summons.^^^ Where the lease is from year to year the notice to quit 
 must be given three months before the expiration of the current 
 yg^j._266 ;g^^ If ^^Q lease is for a fixed definite period, to expire at a 
 certain time, a notice before the expiration of the term is unnecessary ; 
 if the tenant do not then remove, the landlord may, after its expira- 
 tion, give notice and proceed under this act.^®'' The tenant may waive 
 the notice, but such waiver must be expressly found by the jury form- 
 ing the inquisition.^^^ 
 
 § 311. Rhode Island. — "Tenants of land or tenements at will or 
 by sufferance shall quit upon notice in writing from the landlord 
 at the day named therein." "Tenants by parol of lands, buildings, or 
 parts of buildings, from year to year, shall quit at the end of the year 
 upon notice in writing from the landlord, given at least three months 
 prior to the expiration of the occupation year.'' Tenants for less than 
 a year shall quit upon notice given at least half the period of the 
 term, not exceeding in any case three months, prior to the expiration 
 of the term. Notices given by the tenant to the landlord shall have 
 the same effect for all purposes as if given by the landlord to the 
 tenant. 2^^ Under this statute a tenant at sufferance is entitled to a no- 
 tice to quit and the term "tenant at sufferance" is used in its technical 
 common law sense.^^" The Supreme Court of the state construed this 
 statute to mean that a tenant strictly at will or by sufferance was en- 
 titled to a day's notice only. But if the notice were unreasonably short 
 the tenant might be entitled, after the tenancy was terminated, to 
 ingress and egress for the purpose of removing household effects or 
 taking emblements, without making himself liable as a trespasser.^" 
 
 *' Brightly's Purdon's Dig. St., St. 472; Wilgus v. Whitehead, 89 
 
 12th Ed., p. 1163, § 17. Pa. St. 131. 
 
 ^^ Lesley v. Randolph, 4 Rawle '^ Gen. Laws 1896, ch. 269, §§ 1-5. 
 
 (Pa.) 123; Boggs v. Black, 1 Binn. ""Johnson v. Donaldson, 17 R. L 
 
 (Pa.) 333; Fahnestock v. Fauste- 107, 20 Atl. 242. The "notice in 
 
 nauer, 5 S. & R. (Pa.) 174; Logan writing" to terminate lettings re- 
 
 V. Herron, 8 S. & R. (Pa.) 459; quired by Gen. St. R. L, chap. 221, 
 
 Lloyd V. Cozens, 2 Ash. (Pa.) 131; is an original notice, not a copy of 
 
 Parsons v. Roumfort, 2 Pears. (Pa.) the notice. Hence when it appears 
 
 81- that the only notice served on de- 
 
 "^^ Logan V. Herron, 8 S. & R. fendant was such a copy, it was 
 
 (Pa.) 459; Bedford v. McElherron, held that no notice had been given. 
 
 2 S. & R. (Pa.) 49; Evans v. Hast- Mathewson v. Thompson, 12 R. L 
 
 ings, 9 Pa. St. 273. 288. 
 
 *« Hutchinson v. Potter, 11 Pa. =" Payton v. Sherburne, 15 R. I.
 
 §§■ 312, 314] NOTICE TO QUIT. 330 
 
 § 312. South Carolina. — Every lease having a definite period stated 
 for its determination shall end absolutely and unequivocally at that 
 time without any notice. In a tenancy strictly at will proceedings to 
 eject the tenant may be instituted ten days after he is notified to leave 
 the premises.^''^ In tenancies from year to year three months has been 
 substituted as the customary period for notice in place of six months, 
 which the English law required. For tenancies of shorter continuance, 
 which are generally of less valuable tenements, a shorter notice is 
 required.^'^ 
 
 § 313. South Dakota. — A tenancy or other estate at will, however 
 created, may be terminated by the landlord's giving notice to the ten- 
 ant to remove from the premises within a period specified in the 
 notice, if not less than one month. The notice must be in writing 
 and must be served by delivering the same to the tenant or to some 
 person of discretion residing on the premises. If neither can be found 
 notice can be posted on the premises.^''* 
 
 § 314. Virginia. — "A tenancy from year to year may be terminated 
 by either party giving notice in writing prior to the end of any year 
 for three months, if it be of land within, and for six months, if of 
 land without a city or town, of his intention to terminate the same. 
 When such notice is to the tenant it may be served upon him or upon 
 any one holding under him the leased premises, or any part thereof. 
 When it is by the tenant it may be served upon any one who, at the 
 time, owns the premises in whole or in part, or the agent of such 
 owner, or according to the common law. This section shall not apply 
 where, by special agreement, no notice is to be given ; nor shall notice 
 be necessary from or to a tenant whose term is to end at a certain 
 
 213, 2 Atl. 300. The court say: out more; but the section adds, 'at 
 
 "The natural construction of this the day named therein,' which, it 
 
 section is that the tenant receiv- seems to us, clearly indicates an in- 
 
 ing notice shall quit on the day tention to leave the length of the 
 
 named, and that all he can require notice to the discretion of the lessor 
 
 is that the notice shall give him or owner giving it. To hold that 
 
 a day. If this view be correct the 'notice' means 'reasonable notice' 
 
 notices were good. The defendants is to open the door to contention 
 
 contend that the construction is too such as it was the Intention of 
 
 strict and that 'notice' means 'rea- [this] chapter ... to avert." 
 sonable notice.' We should be in- «-Civ. Code 1902, §§ 2415, 2422. 
 clined to construe the section so, ^^ Godard v. South Carolina R. 
 
 if the language were that the ten- Co., 2 Rich. L. (S. Car.) 346. 
 ants 'shall quit upon notice in writ- "* Civ. Code 1903, §§ 262, 263. 
 ing from the lessor or owner,' with-
 
 331 STATUTORY PROVISIONS. [§315 
 
 time."^'^ An agreement under seal by a tenant that he will surrender 
 possession whenever a purchaser from the landlord requires it consti- 
 tutes him a tenant at will, or at sufferance, and he is not entitled to 
 six months' notice to quit. If a tenant claims to hold adversely to his 
 landlord he is not entitled to notice.^^" But a tenant at will, as, for 
 example, a person put in possession of land under an agreement for 
 purchase, but who is in default in the payment of the purchase money, 
 is not liable to be turned out of possession by ejectment without pre- 
 vious demand or notice by the owner.^^^ 
 
 § 315. Washington. — Tenancy from month to month or from 
 period to period on which rent is payable may be terminated by writ- 
 ten notice of thirty days or more preceding the end of any of said 
 months or periods given by either party to the other.^^^ However, the 
 forcible entry and detainer statute renders ihis provision for thirty 
 days' notice practically nugatory by providing that when a lessee with 
 monthly or other periodic rent reserved continue in possession after 
 the end of any such month or period in cases where the landlord, more 
 than twenty days prior to the end of such month or period, has served 
 notice on him to quit, he is guilty of unlawful detainer.^^^ In passing 
 upon the length of the notice it was held to be sufficient to give twenty 
 days' notice prior to the end of the month or period, excluding the day 
 of service. Thus a notice served the eleventh would be sufficient to 
 terminate a tenancy at the end of a month having thirty-one days.^^" 
 Such a notice is not invalid because it gives the tenant all of the first 
 day of the succeeding month in which to vacate.^^^ As a result of these 
 statutes it seems that where the period between rent payment was 
 twelve months, or where a tenancy from year to year was created by 
 express agreement, the holding could be terminated by twenty days' 
 notice given prior to the expiration of the year. "In all cases where 
 premises are rented for a specified time, by express or implied con- 
 tract, the tenancy shall be deemed terminated at the end of such 
 specified time."^^^ A tenancy at sufferance shall terminate immedi- 
 ately upon a demand for possession by the owner.^®^ 
 
 =^'Code 1887, § 2785. ='» McGinnis v. Genss, 25 Wash. 
 
 ""Harrison v. Middleton, 11 Grat. 490, 65 Pac. 755; Ferguson v. Hoshi, 
 
 (Va.) 527. 25 Wash. 664, 66 Pac. 105. 
 
 "' Jones V. Temple, 87 Va. 210, 12 '^^ Harris v. Halverson, 23 Wash. 
 
 S. E. 404; Twyman v. Hawley, 24 779, 63 Pac. 549. 
 
 Grat. (Va.) 512. =«= Ball. Code 1897, § 4570. 
 
 =^'Ball. Code 1897, § 4569. ^ Ball. Code 1897, § 4571. 
 
 =^™Ball. Code 1897, § 5527, sub- 
 sec. 2.
 
 §•§ 316, 317] NOTICE TO QUIT. 333 
 
 § 316. West Virginia. — "A tenancy from year to year may be 
 terminated by either party giving notice in writing to the other, prior 
 to the end of any year, for three months, of his intention to terminate 
 the same. When such notice is to the tenant it may be served upon 
 him or upon any one holding under him the leased premises, or any 
 part thereof ; when it is by the tenant, it may be served upon any one 
 who at the time owns the premises in whole or in part, or the agent of 
 such owner, or according to the common law. This section shall not 
 apply where, by special agreement, no notice is to be given ; nor shall 
 notice be necessary from or to a tenant whose term is to end at a cer- 
 tain time."^®* Tenants at sufferance are not entitled to notice to quit 
 prior to the institution of an action of ejectment against them.^^^ 
 
 § 317. Wisconsin. — A tenancy at will or by sufferance may be 
 terminated by the landlord's giving one month's notice in writing to 
 the tenant requiring him to remove or by the tenant's giving one 
 month's notice in writing that he shall remove. When the rent re- 
 served in a lease at will is payable at periods of less than one month 
 such notice shall be sufficient if it be equal to the interval between 
 the times of payment. In all cases of neglect or refusal to pay the rent 
 on such a lease fourteen days' notice to remove, given by the landlord, 
 shall be sufficient to determine the lease.^*^ A tenancy from year to 
 year may be terminated at the end of any year by either party giving 
 to the other party a notice in writing, not less than thirty days prior 
 to the date of such expiration, that he elects to terminate such lease 
 at the end of such year.^*'' iSTotice shall be served by delivering it to 
 the tenant or to some person of proper age residing on the premises. 
 If no one can be found, the notice may be posted on the premises. At 
 the expiration of the time required after the service of such notice 
 the landlord may reenter or proceed to recover possession by action at 
 law.^*^ The thirty days' notice which is intended to terminate a year 
 to year holding must require the tenant to quit at the end of one of the 
 yearly periods.^*® 
 
 '^ Code 1899, ch. 93, § 5. N. W. 523, that six months notice 
 
 ^= McClung V. Echols, 5 W. Va. was necessary to terminate a ten- 
 
 204. ancy from year to year. 
 
 ^St. 1898, § 2183. ^^'St. 1898, § 2184. 
 
 ^^St. 1898, § 2187. This changed =*> Peehl v. Bumbaiek, 99 Wis. 62, 
 
 the existing law as laid by the case 74 N. W. 545. 
 of Brown v. Kayser, 60 Wis. 1, 18
 
 CHAPTER V. 
 
 COVENANTS IN LEASES. 
 
 1. Construction and Effect, §§ 318- 
 
 335. 
 
 2. For Renewal of Lease, §§ 336- 
 
 348. 
 
 3. For Quiet Enjoyment, §§ 349- 
 
 371. 
 
 4. In Regard to Building and Im- 
 
 provements, §§ 372-381. 
 
 5. Restricting Use of Premises, 
 
 §§ 382-386. 
 
 6. As to Sale of Premises, §§ 387- 
 
 388. 
 
 7. For Insurance, §§ 389-390. 
 
 8. For Repairs, §§ 391-410. 
 
 9. To Pay Taxes, §§ 411-420. 
 
 I. Construction and Effect. 
 
 § 318. A covenant is an agreement, convention or promise be- 
 tween two or more parties, by deed, signed, sealed and delivered, by 
 which either of the parties pledges himself to the other that some- 
 thing is either done or shall be done.^ Blackstone says it is "a species 
 of express contract contained in a deed to do a direct act or omit 
 one."2 Looking at the matter from a different point of view it has 
 been stated that any agreement under seal is a covenant, the seal 
 being the distinguishing feature between it and a simple contract.* 
 It is true that a covenant can only be created by deed, but it may be 
 as well by deed-poll as by indenture; for the covenantee's acceptance 
 of the deed is such an assent to the agreement as will render it bind- 
 ing on him.* Where the instrument is in the form of an inden- 
 ture and is intended to be signed by the lessee, but he fails to do 
 so, the effect of delivery is not clear. The estate passes to the 
 lessee, but it has been suggested that he is not bound to perform 
 the covenants because the lessor waives his right to insist on them by 
 allowing the lease to be put on record without the lessee's signature.^ 
 "WHiile it has been held that the technical action of covenant could 
 not be maintained against a grantee under a deed-poll, because he had 
 
 ^Black's Law Diet. 
 ^3 Bl. Comm. 155. 
 ^Randel v. President &c., 1 Harr. 
 (Del.) 151. 
 ^Greenl. Cruise Dig., ch. 26, tit. 
 
 32, § 3; Shep. Touch. 177; Spauld- 
 ing V. Hallenbeck, 35 N. Y. 204; At- 
 lantic Dock Co. V. Leavitt, 54 N. Y. 
 35. 
 
 333
 
 § 319] COVENANTS IN LEASES. 334 
 
 not sealed the deed/ it is commonly said that the preponderance of 
 authority is the other way.'^ Piatt, in his treatise on covenants, after 
 stating his view that the proper rule is not to allow the action, goes 
 on to say, "Perhaps, however, the doctrine has been too long sanc- 
 tioned (that such an action can be maintained) to be now reversed. 
 At all events, it is an introduction of an equitable principle into a 
 court of law, the acceptance of a deed being considered equivalent to 
 to an actual execution by the lessee."^ "The doctrine is perfectly well 
 settled," said Chief Justice Bigelow, "that when a party accepts a 
 deed-poll or instrument in the nature of a deed-poll, by which he 
 obtains a right or interest in property on condition or with a stipula- 
 tion that he shall pay a sum of money or perform a certain duty, he 
 becomes thereby bound to pay the money or perform the duty. Not 
 having signed and sealed the deed, he is not liable for breach of 
 covenant; but by accepting the deed he assumes the performance of 
 the condition or stipulation from which the law will imply a promise 
 on which the action may be maintained."^ 
 
 § 319. No particular form of words is necessary to constitute a 
 covenant. Whatever shows the intent of the parties to bind them to 
 the performance of a thing stipulated, may be deemed a covenant 
 without regard to the form of expression used. Express covenants 
 may be created by words which at first sight might appear to operate 
 rather as conditions, qualifications, or defeasances of covenants.^'' 
 The law has appropriated no particular form of expression to their 
 creation; and any words are sufficient which show the intention of 
 the parties.^ ^ The words of a covenant are narrowed or extended by 
 the apparent object or intent of the parties.^^ To ascertain the in- 
 tention of the parties the court may not only look to the instrument 
 
 ''Libbey v. Staples, 39 Me. 166. Coal Co., 59 111. App. 595, 602; 
 
 ^Hinsdale v. Humphrey, 15 Conn. Smiley v. McLauthlin, 138 Mass. 
 
 431; Burnett v. Lynch, 5 B. & C. 363; James v. Cochrane, 7 Exch. 
 
 589; Maule v. Weaver, 7 Pa. St. 170, s. c. 8 Exch. 556; Clapham v. 
 
 329; Piatt on Cov. 18. Moyle, 1 Lev. 155; Parker v. Grave- 
 
 ^ Atlantic Dock Co. v. Leavitt, 54 nor, 2 Dy. 150, And. 19, 1 Co. 155e; 
 
 N. Y. 35. Burnett v. Lynch, 5 B. & C. 589, 
 
 « Piatt on Cov. 18. 602. 
 
 * Maine v. Cumston, 98 Mass. 317; "4 Cruise's Dig. 447; Davis v. 
 
 quoted in Rising Sun Lodge v. Lyman, 6 Conn. 249; Bull v. FoUett, 
 
 Buck, 58 Me. 426; Huff v. Nicker- 5 Cow. (N. Y.) 170. 
 
 son, 27 Me. 106. " Shep, Touch. 169; Browning v. 
 
 '" Campbell v. Shrum, 3 Watts Wright, 2 B. & P. 13, 1 Inst. 381. 
 (Pa.) 60, 63; Peers v. Consolidated
 
 335 CONSTRUCTION AND EFFECT. [§ 319 
 
 itself, but also to the circumstances attending its execution. It is 
 permissible to introduce parol evidence of surrounding circumstances, 
 in order to arrive at the real intention of the parties and to make a 
 correct application of the words of the contract to the subject-matter.^' 
 The word "agree" in a deed will make a covenant ; and, though in the 
 connection it is applicable to both parties, it may be referred to that 
 party upon whom the doing or not doing the thing agreed upon de- 
 volves.^* If a lessee for years covenants to repair, etc., provided 
 always and it is agreed that the lessor shall find great timber, this is 
 a covenant on the part of the lessor to find the timber and not merely 
 a qualification of the lessee's covenant.^^ A mere recital of the build- 
 ings on the premises, contained in the description clause in a lease, 
 does not amount to a covenant that such buildings will continue to 
 stand on the premises.^^ A provision that full rent should not be 
 charged till certain improvements were made did not amount to a 
 covenant on the part of the lessor to make the improvement.^'^ And 
 a lease of a brickyard did not raise an implied covenant on the part 
 of the lessee to make brick, ^^ though the lease was a peculiar one, and 
 the only rent to be paid by the lessee was twenty-five cents per thousand 
 brick. The lessor maintained that he could recover damages for the 
 refusal of the lessee to manufacture brick, upon the ground that there 
 is an implied covenant in the lease to that effect. This depended 
 upon the intention of the parties. The rule of construction is that 
 the language must not merely show that the parties contemplated 
 that the thing might be done, but must amount to a binding agree- 
 ment upon them that the thing shall be done.^® When parties have 
 entered into an agreement with express stipulations, the presumption 
 is that they have expressed all the conditions by which they intend to 
 be bound, and their covenants cannot be extended by implication, 
 
 "Proprietors &c. v. Hilton, 11 citing Holder v, Taylor, 4 Cruise 
 
 Gray (Mass.) 407; Knecken v. 448. 
 
 Voltz, 110 111. 264; Vaughan v. Mat- >n Roll. Abr. 518; 6 Viner 381, 
 
 lock, 23 Ark. 9. In the latter case Tit. Gov't C. 22, 23. 
 
 a lease described a lot of land by ^^ Branger v. Manciet, 30 Cal. 
 
 metes and bounds "together with a 624. 
 
 fire-proof brick warehouse built "Gatch v. Garretson, 100 Iowa 
 
 thereon and all singular and other 252, 69 N. W. 550. 
 
 appurtenances thereunto belong- ^* Smiley v. McLauthlin, 138 Mass. 
 
 ing." This was held to be the cove- 363. 
 
 nant that a warehouse was fire- " James v. Cochrane, 7 Exch. 170, 
 
 proof. s. c. 8 Exch. 556; Moyer v. Mitchell, 
 
 "Randel v. Chesapeake, etc., 53 Md. 171. 
 Canal Co., 1 Har. (Del.) 151, 172,
 
 §' 320] COVENANTS IN LEASES. 336 
 
 unless the implication is clear and undoubted.^** The more reasonable 
 implication seems to be that it was the imderstanding of the parties 
 that the lessor took the risk of the lessee's manufacturing brick, and 
 intended to make the rent dependent upon the success of an experi- 
 ment.-^ 
 
 A covenant in a lease of land, "to provide the said lessee with a 
 suitable right of way to and from said lot,'' is not a covenant of war- 
 ranty or guaranty, and it is not performed by showing a right of way 
 existed by necessity. The lessee is not obliged to litigate the question 
 of right of way by necessity, but may rely on the lessor's covenant 
 to supply a suitable right of way. The lessor's covenant is broken by 
 his inaction irrespective of any possible right of way by necessity; 
 he could have performed his covenant by purchasing a right of way. 
 He could not perform it, however, by doing nothing, by leaving the 
 lessee to assume all the vexation and expense of litigation with ad- 
 joining owners. To induce the lessee to accept the lease the lessor 
 conceded that no suitable right of way yet existed and covenanted to 
 provide one. The lease having been accepted with that covenant, the 
 lessor cannot now be heard to assert that such a right of way existed 
 already in fulfillment of the covenant. ^^ An instrument granting a 
 right of way for a log and lumber tramway, on condition the right 
 should not extend longer than the premises are used for such pur- 
 poses, was held to constitute a leasehold interest on condition sub- 
 sequent.^^ 
 
 § 320. Joint covenantors. — Wliere there are several persons exe- 
 cuting a deed, it is not necessary to affix a separate seal for each, 
 provided it appear that the seal affixed was intended to be adopted as 
 the seal of all.^* This has been held where a deed was executed by 
 an attorney for several parties,^^ and where a deed was executed by 
 one partner for several members of a firm.^® If there is but one 
 
 '" Aspdin V. Austin, 5 A. «& E. (N. ^^Krapp v. Crawford, 16 Wash. 
 
 S.) 671, 48 E. C. L. 671; Rashleigh 524, 48 Pac. 261. 
 
 V. South Eastern R. Co., 10 C. B. "Van Alstyne v. Van Slyck, 10 
 
 612, 70 E. C. L. 612; Dermott v. Barb. (N. Y.) 383; McDill v. Mc- 
 
 Jones, 2 Wall. (U. S.) 1, 8. Dill, 1 Ball. (U. S.) 63; Yarbrough 
 
 =^ Smiley v. McLauthlin, 138 Mass. v. Monday, 2 Dev. L. (N. Car.) 493; 
 
 363. A covenant in the lease of a Flood v. Yandes, 1 Blackf. (Ind.) 
 
 coal mine to pay royalty by a cer- 102. 
 
 tain date did not bind lessee to '^Townsend v. Hubbard, 4 Hill 
 
 mine coal by that time, but merely (N. Y.) 351. 
 
 fixed a time for payment. King v. ^ Ball v. Dunsterville, 4 Term R. 
 
 Edwards, 32 111. App. 558. 313; Mackay v. Bloodgood, 9 Johns. 
 
 "Bunker v. Pines, 86 Me. 138, 29 (N. Y.) 285. 
 Atl. 959. 
 
 .1
 
 337 COXSTIIUCTIOX AND EFFECT. [§ 331 
 
 seal to a contract, it is presumed to be the seal of the party whose 
 signature is prefixed to it, but upon proof of its being made by the 
 authority of the other parties, it will be held to be their seal also.^^ 
 Wlien a lease is executed by a firm composed of several parties, the 
 covenants thereof are several as well as joint, and each individual 
 member of the firm is liable on them.^^ 
 
 § 321. Covenants have been divided into express and implied cove- 
 nants, and the latter depend for their existence upon the intendment 
 and construction of the law. There are some words which of them- 
 selves do not import an express covenant, yet being made use of in 
 certain contracts have a similar operation, and are called covenants in 
 law or implied covenants.^^ They are implied by the law, from the 
 use of certain words having a known legal operation in the creation 
 of an estate. All covenants between lessee and lessor are either cove- 
 nants in law or express covenants.^*' Illustrations of this class are to 
 be found in the effect of the words grant, demise, etc., from which 
 the law implies a covenant that the lessee shall hold and enjoy the 
 premises against all lawful incumbrances.^^ 
 
 However, if a covenant is raised by inference from a construction 
 of the instrument it is an express and not an implied covenant. The 
 operation of the covenant is the same, whether the language be precise 
 and express, or whether it be a matter of inference and construction. 
 If the parties agree to do or not to do a certain thing the agreement 
 is an express covenant whether they have used the word covenant, or 
 other words -from which their meaning is to be inferred. It is not 
 the less an express covenant, because the meaning is obscurely ex- 
 pressed, and therefore discovered with difficulty.^^ Thus a covenant 
 to pay a certain sum of money for land on a certain day was held 
 
 "Stabler v. Cowman, 7 Gill & J. v. Fowle, 9 N. H. 219, 32 Am. Dec. 
 
 (Md.) 284. 350; Grannis v. Clark, 8 Cow. (N. 
 
 '«Dunn v. Jaffray, 36 Kan. 408, 13 Y.) 36; Barney v. Keith, 4 Wend. 
 
 Pac. 781. (N. Y.) 502; Stott v. Rutherford, 
 
 ^ Bacon Abr. Covenant, B. 92 U. S. 107, 23 L. Ed. 486. The 
 
 ^"Vaughan's Reports 188; Cr. covenant arising out of the words 
 
 Litt. 139, b. "yielding and paying" In a lease is 
 
 '^Spencer's Case, 5 Coke 16; an implied covenant, and the lessee 
 
 Clarke v. Samson, 1 Ves. Sr. 100; is not liable on it for rents accruing 
 
 Andrew's Case, Cro. Eliz. 214; Mer- after an assignment of his term, 
 
 rill V. Frame, 4 Taunt. 329; Shep. Kimpton v. Walker, 9 Vt. 191. 
 
 Touch. 160; Com. Dig. Cov. A. 4; ^= Levering v. Levering, 13 N. H. 
 
 Wells V. Mason, 5 111. 84; Crouch 513. 
 
 Jones L. & T.— 22
 
 J 322] COVEXAXTS IX LEASES. 338 
 
 to amount to a covenant on the part of the owner to convey the land.'' 
 A covenant by a lessee that he would at all times and seasons of burn- 
 ing lime, supply the lessor with lime at a stipulated price, was held 
 to be a covenant that he would burn lime at all such seasons.'* And 
 a covenant in a lease that the tenant will fold his flock which he 
 shall keep on certain specified parts of the premises, is bindmg on 
 him to keep a flock and fold it on the premises.'^ In another case 
 J the lessor agreed that the lessee should hold and occupy the premises 
 ' for a certain term. The court were of opinion that these words 
 amounted to a general covenant for quiet enjoyment during the 
 term.'^ 
 
 § 322. The general rule for interpretation of covenants in a lease 
 is to expound them so as to give effect to the actual intent of the par- 
 ties as collected from the entire context.'^ "The scope and end of 
 every matter is principally to be considered, and if the scope and 
 end of the matter is satisfied, then is the matter itself and the intent 
 thereof also satisfied."'® "And the words of an indenture are the 
 words of either party,'* as the matter is put in Touchstone, "and albeit 
 they be spoken as the words of the one party only, yet they are not 
 his words alone, but may be applied to the other party if they do more 
 properly belong to him ; for every word that is doubtful shall be ap- 
 plied and expounded to be spoken by him to whom they will best 
 agree according to the intent of the parties, and they shall not be 
 taken most strongly against one or beneficially for the other, as the 
 words of a deed-poll shall."'^ In construing a covenant in a lease by 
 indenture, the words of the covenant are to be taken however set 
 down in the lease as the words of the parties to whom they properly 
 belong, or if properly belonging to both, as the words of both ; the 
 words of an indenture being the words of either party and not to bo 
 taken most strongly against the one or beneficially for the other, 
 as the words of a deed-poll are. Under this rule it was held that the 
 clause "the said gangway to be kept open for the benefit of the lot 
 hereby leased and also of the lots hereunto adjoining" was a covenant 
 
 ^ Pordage v. Cole, 1 Saund. 319, i. 150 111. 344, 37 N. E. 937, affirming 
 
 ^Shrewsbury v. Gould, 2 B. & 39 111. App. 453; Peers v. Consoli- 
 
 Aid. 487. dated Coal Co., 59 111. App. 595; 
 
 ^Webb v. Plummer, 2 B. & Aid. Walker v. Physick, 5 Pa. St. 193. 
 
 746. ^* Reniger v. Fogossa, Plowd. 1» 
 
 ^ Ellis v. Welch, 6 Mass. 246. 18. 
 
 "Consolidated Coal Co. v. Peers, ^Sheppard's Touchstone 52.
 
 339 CONSTEUCTION AND EFFECT. [§ 322 
 
 of the lessee as well as of the lessor.^'' Where an owner of land has 
 covenanted to lease for use as a pasture and covenanted to furnish 
 a sufficient supply of water, this is a contract for as much water as is 
 required for the cattle the pasture will support.*^ The same principle 
 was applied where the lessor of a dairy farm agreed to furnish cows 
 fit for dairying, "the number not limited," at so much per annum 
 for each cow. This was construed to bind the lessor to furnish 
 enough cows to stock the land leased.*^ Under a lease reserving one- 
 third the net products of a dairy, the lessee was bound to pay the cost 
 of labor employed to make butter, but could deduct the cost of trans- 
 portation to market.*^ On leasing a farm and stock on the shares 
 larger articles, like horses, tools, etc., should be returned in kind, 
 but stock, such as hogs, calves and chickens, need only be returned to 
 an equal value and of like description.** 
 
 The positive affirmation of a covenant is not qualified by the state- 
 ment of its purpose as for the benefit of the lot leased and of the 
 adjoining lots. Such an avowal of the purpose of a positive covenant 
 constitutes the purpose neither a condition nor limitation of the 
 covenant; but simply declares the motive or inducement of the 
 parties to enter into it. The motive may have been a wise or foolish 
 one, — it may exist or it may have ceased to exist, — yet the covenant, 
 if it be lawful, remains unaffected.*^ A clause in a lease that the 
 lessor shall have the right to sell the demised premises at any time 
 covered by the lease, by giving the lessor two months' notice and the 
 privilege of purchasing, is enabling and not restrictive. Independ- 
 ently of and notwithstanding this clause he may sell the reversion. 
 The whole effect of the clause is to enable him to terminate the 
 lease, and sell the whole estate, first giving the lessee the oppor- 
 tunity of purchasing.*^ A provision that in case of a sale of the leased 
 property by the lessor, he should forfeit to the lessee a certain sum 
 as damages, implies an agreement that the lessor may terminate the 
 lease by such sale.*^ 
 
 • ^"Beckwith v. Howard, 6 R. I. 1; ther expense for labor, he was lia- 
 
 Randell v. President &c., 1 Harr. ble for additional work not includ- 
 
 (Del.) 151. ed in specifications and done at his 
 
 " Crabtree v. Hagenbaugh, 25 111. request. Barnes v. Hogate, 103 
 
 233. Iowa 743, 72 N. W. 688. 
 
 '= Griffiths v. Henderson, 49 Cal. " Brock way v. Rowley, 66 111. 99. 
 
 566. See also. Smith v. Niles, 20 '= Beckwith v. Howard, 6 R. I. 1. 
 
 Vt. 315, 49 Am. Dec. 782. *« Callaghan v. Hawks, 121 Mass. 
 
 "Reybold v. Reybold, 6 Houst. 298. 
 
 (Del.) 420. Under lease for crop "Johnson v. King, 83 Wis. 8, 53 
 
 rent exempting landlord from fur- N, W. 28.
 
 § 323] COVENANTS IN LEASES. 340 
 
 § 323. "Covenants are either dependent, concurrent and mutual, 
 or independent. The first depends on the prior performance of some 
 act or condition, and until the condition is performed, the otlier party 
 is not liable to an action on his covenant. In the second, mutual acts 
 are to be performed at the same time, and if one party is ready, and 
 offers to perform his part, and the other refuses to perform his, he 
 who is ready and offers, has fulfilled his engagement and may main- 
 tain an action for the default of the other, though it is not certain 
 that either is obliged to do the first act. The third sort is, where 
 either party may recover damages from the other for the injury he 
 may have received by a breach of the covenants in his favor ; and it is 
 no excuse for the defendant to allege a breach of the covenants on the 
 part of the plaintiff,"*^ Wliere the parties are to perform concurrent 
 acts, and the plaintiff's act forms the basis or consideration of the 
 defendant's act, the defendant may always excuse himself by relying 
 on the failure of the plaintiff.*'* But where the defendant's act rests 
 upon an independent consideration, he cannot excuse himself by 
 showing a failure to perform on the part of the plaintiff.^** He has 
 not made performance by the other party a condition precedent to his 
 liability; but has trusted to a remedy by action on the agreement.^^ 
 If covenants are to pay rent by instalments and to pay taxes as they 
 become due, each goes only to a part of the consideration of the per- 
 formance of the contract on the part of the lessor and cannot, there- 
 fore, be mutually dependent covenants; covenants to be dependent 
 must be mutual, and go to the entire consideration.^^ The ordinary 
 covenant of a landlord to make repairs is an independent covenant, 
 and a mere failure to make repairs to the extent of diminishing the 
 value of the use of the premises without destroying their value, does 
 not defeat the right of the lessor to recover rent.^^ In a lease of cot- 
 
 '' Bailey v. White, 3 Ala. 330, per Couch v. Ingersoll, 2 Pick. (Mass.) 
 
 Collier, C. J. 292; Thruston v. Minke, 32 Md. 
 
 "Lawrence v. Dole, 11 Vt. 549; 487; Hamilton v. Thrall, 7 Neb. 
 
 Day V. Essex Co. Bank, 13 Vt. 97; 210. 
 
 Morris v. Sliter, 1 Denio (N. Y.) ^= Butler v. Manny, 52 Mo. 497; 
 
 59. Smith v. Busby, 15 Mo. 387; Bennet 
 
 =«Day V. Essex Co. Bank, 13 Vt. v. Pixley, 7 Johns. (N. Y.) 249; 
 
 97; Boone v. Eyre, 1 H. Bl. 273, n.; Robb v. Montgomery, 20 Johns. (N. 
 
 Pordage v. Cole, 1 Saund. 319, i. Y.) 15; Tinney v. Ashley, 15 Pick. 
 
 '^Morris v. Sliter, 1 Denio (N. (Mass.) 546; Lewis v. Chisholm. 68 
 
 Y.) 59; Northrup v. Northrup, 6 Ga. 40; Pordage v. Cole, 1 Sannd. 
 
 Cow. (N. Y.) 296; West v. Emmons, 319, i. 
 
 5 Johns. (N. Y.) 179; Parker v. =^^ Lewis v. Chisholm, 68 Ga. 40. 
 Parmele, 20 Johns. (N. Y.) 130;
 
 341 CONSTRUCTION AND EFFECT. [§ 324 
 
 tage as a bathing house, it was urged that a covenant by the lessee to 
 repair was dependent on an implied agreement by the lessor to keep 
 a hotel and adjoining premises in suitable repair for a bathing place. 
 This implication was based upon a recital in the lease, which stated 
 that "the lessor has established a watering or bathing place, and has 
 caused it to be laid off in blocks, . . . and whereas it is his 
 object that said grounds shall be kept in good order, etc." In this 
 there was no covenant, either express or implied, that the lessor 
 would build or maintain a hotel or keep the grounds in good order 
 suitable for a bathing place. Such was doubtless his intention, as 
 expressed in the recital ; but this was intended only for his own bene- 
 fit, and whether he would continue to do so or not was left to depend 
 entirely on his own will. The tendency of modern decisions is not to 
 imply covenants which might and ought to have been expressed if 
 intended. A covenant is never implied that a lessor will make any 
 repairs.^* Here the supposed implied covenant on the part of the 
 lessor is not for repairs to the property demised, but relates to other 
 property belonging to the lessor. In no case has a covenant of that 
 kind been implied. By the terms of the lease the right of the lessee 
 became forfeited, if the cottage should be suffered to remain out of 
 repair, and this duty of the lessee to repair was contingent on no 
 undertaking or agreement of the lessor, but was an absolute obliga- 
 tion.^^ 
 
 § 324. Covenants in an agreement will be construed as conditions 
 precedent or as independent agreements, according to the intention of 
 the parties and the good sense of the case, and technical words must 
 give way to such intention.^*' 
 
 Therefore, in determining how to class covenants, the safest and 
 best course is to ascertain what was the intention of the parties from 
 the instrument they have executed, and then to give the covenants 
 such a construction as will carry this intention into effect.^^ If it 
 appears, on the whole, that any substantial part of the agreement 
 
 =' Sheets v. Selden, 7 Wall. (U. "Rowland v. Leach, 11 Pick. 
 
 S.) 416, 423. (Mass.) 151, 154; Manning v. 
 
 =^Moyer v. Mitchell, 53 Md. 171. Brown, 10 Me. 49; Lunn v. Gage, 
 
 ■^^ Parmelee v. Oswego &c. R. Co., 37 111. 19; Hill v. Bishop, 2 Ala. 
 
 6 N. Y. 74; Palmer v. Meriden &c. 320; Moyer v. Michell, 53 Md. 171; 
 
 Co.. 188 111. 508, 59 N. E. 247; affirm- Kingston v. Preston, 2 Doug. 689; 
 
 ing 88 111. App. 485; Davis v. Wiley, Glazebrook v. Woodrow, 8 Term R. 
 
 ,4 111. 234; Slocum v. Despard, 8 371; Piatt on Covenants, 72 to 80. 
 
 Wend. (N. Y.) 615.
 
 §• 324] COVENANTS IN LEASES. 343 
 
 on one side is to be performed only on condition of performance on 
 the other, the court is bound to construe the covenants accordingly, 
 whatever may be the order in which they are placed in the instrument 
 or the manner in which they are expressed,^^ Because a covenant 
 goes only to a part of the consideration it is not necessarily inde- 
 pendent, the dependence or independence of covenants being deter- 
 mined by the order of time in which performance is required.^^ 
 But where a covenant goes only to part of the consideration on both 
 sides, and a breach of such covenant may be paid for in damages, it 
 is an independent covenant, and an action may be maintained for a 
 breach of the covenant by the other party without averring performance 
 in the declaration.*'*' So, if there are a number of covenants on each 
 side, the enjoyment by one party of a substantial performance by the 
 other has been held to prevent his insisting upon the non-performance 
 of that which was originally a condition precedent.®^ A covenant by 
 a tenant to pay rent and by a landlord to repair are regularly held to 
 be independent covenants, and therefore, a failure to repair does not 
 work a forfeiture of the rent, but merely gives a right of action or of 
 recoupment, and a failure to repair does not at common law bar an 
 action for rent.*'^ The omission of the landlord to perform his cove- 
 nant does not amount to an eviction and is no bar to his claim for 
 rent. The lessee's remedy is either a plea of failure in diminution of 
 the rent or an action to recover damages for the breach of the cove- 
 nant"^ or to make such repairs himself as are suitable and necessary 
 and charge their cost to the lessor.*'* Covenants to pay rent and taxes 
 and to buy improvements at the end of the term have also been held 
 to be independent. The mere recital in the lease that the agreements 
 in the lease to be performed by the lessees being performed, the lessor 
 will at the expiration of the lease pay for the improvements, does not 
 have the effect to make independent covenants in the lease dependent. 
 
 "* Gardiner v. Corson, 15 Mass. Christopher v. Austin, 11 N. Y. 216; 
 
 500. Watts V. Coffin, 11 Johns. (N. Y.) 
 
 =^ Grant v. Johnson, 5 N. Y. 247. 495; Etheridge v. Osborn, 12 Wend. 
 
 ^Nelson v. Oren, 41 111. 18; White (N. Y.) 529, 13 Wend. 339; Tibbits 
 
 V. Gillman, 43 111. 502; Newson v. v. Percy, 24 Barb. (N. Y.) 39; Hill 
 
 Smythies, 3 H. & N. 840. v. Bishop, 2 Ala. 320; Wright v. 
 
 "Fust V. Dowie, 5 B. & S. 20, 34 Lattin, 38 111. 293; Belfour v. Wes- 
 
 L. J. Q. B. 127; Carter v. Scargill, ton, 1 Term R. 310; Huff v. Mark- 
 
 L. R. 10 Q. B. 564; Wiley v. In- ham, 70 Ga. 284; Allen v. Pell, 4 
 
 habitants &c., 150 Mass. 426, 23 N. Wend. (N. Y.) 505; §§ 672-674. 
 E. 311; Lober v. Bangs, 2 Wall. (U. «^ Etheridge v. Osborn, 12 Wend. 
 
 S.) -728. (N. Y.) 529. 
 
 «2 Lewis V. Chisholm, 68 Ga. 40; "Lewis v. Chisholm, 68 Ga. 40.
 
 343 CONSTRUCTION" AND EFFECT. [§§ 335, 336 
 
 A provision for a penalty for failure to pay rent for sixty days shows 
 that the covenants to pay rent and taxes are independent of the cove- 
 nant to pay for improvements at the end of the term.*'^ 
 
 § 325. Violations of independent covenants by a landlord will not 
 require an injunction to restrain a proceeding to dispossess a tenant 
 holding over; especially is this true in the absence of any charge of 
 insolvency on the part of the person against whom the injunction is 
 sought.*'^ This question arose in a case where a landlord brought his 
 statutory remedy to remove the tenant from the premises for non- 
 payment of rent. The tenant filed a bill in equity, alleging that the 
 contract of rent was upon condition that the landlord would repair 
 the premises, but that he had not done so, and they were not tenant- 
 able, and that the tenant had been damaged; that the landlord was 
 insolvent and the tenant, by reason of his poverty, was unable to give 
 the bond and security on filing a counter affidavit, as required by law. 
 Therefore, he prayed an injunction restraining the landlord from 
 turning him out of possession. A demurrer to this bill was sustained. 
 "Inasmuch as the law makes no exception," said Warner, J., "as to 
 the eviction of a tenant who is unable to give bond and security, on 
 account of his poverty, a court of equity cannot make one, but is as 
 much bound by the positive law of the land in such cases as a court 
 of law would be. Equity follows the law, where the rule of law is ap- 
 plicable, and the analogy of the law where no rule is directly ap- 
 plicable. The statute law of Georgia in relation to landlord and 
 tenant cannot be altered or changed by simply changing the forum 
 in which the remedy is sought."^'^ 
 
 § 326. The distinction between a covenant and a condition exists 
 even when the agreement is to surrender the property. Thus a cove- 
 nant to surrender premises upon a certain contingency does not of 
 itself give the lessor a right to reenter upon the happening of the 
 contingency. Such a stipulation is not a .condition, which upon 
 reentry by the lessor, determines the lease, but a covenant, the breach 
 of which does not determine the lease, only gives the lessor a right 
 of action to recover damages of such breach.*'^ If the lessee cove- 
 nants to surrender possession on his failure to pay the rent or 
 
 «' Butler v. Manny, 52 Mo. 497; "'Wheeler v. Dascomb, 3 Cush. 
 
 Strohmeyer v. Zeppenfeld, 28 Mo. (Mass.) 285; Sloan v. Cantrell, 5 
 
 App. 268. Cold. (Tenn.) 571; Bergland v. 
 
 "''Huff V. Markham, 70 Ga. 284. Frawley, 72 Wis. 559, 40 N. W. 372; 
 
 "Hall V. Holmes, 42 Ga. 179. Willson v. Phillips, 2 Bing. 13.
 
 §• 327] COVENANTS IN LEASES. 344 
 
 perform any of the covenants of the lease, no right under this con- 
 tract is given the lessor to enter upon the premises, the only remedy 
 lor such failure is by action on the covenant.®'' If one make a lease 
 for years by indenture, provided always, and it is covenanted and 
 agreed between the parties that the lessee shall not alien, this is both 
 a condition and covenant.'" If the power of reentry for the breach 
 of a covenant not to assign be added to such -covenant, it has the force 
 of a condition."^ But where a lessee was to pay as rent a portion 
 of the proceeds of his business, a stipulation that he would furnish the 
 lessor with statements of the business monthly, or oftener if required, 
 took effect as a covenant and not as a condition.'^^ A clause in a lease 
 to the effect that "Said lessee doth agree to deliver up said premises 
 . . . on three months' notice, by said lessor paying him a certain 
 sum" is not a condition but a covenant.''^ It was stipulated in another 
 lease that the lessees should make certain improvements by a specified 
 time, and the lessees further agreed to forfeit the lease if they for- 
 feited any of its stipulations. This was held to be a condition and 
 not a mere covenant.'^* 
 
 § 327. The apt words of limitation are while, as long as, until, or 
 during; as when land is granted to a man as long as he is parson, or 
 while he continues unmarried, or until, out of the rents and profits, 
 he shall have made $500, and the like; or if it is declared in the lease, 
 that the same shall expire on the happening of any contingency. In 
 such cases, whenever the contingency happens, the lease is deter- 
 mined by its own limitation, without any entry or other act to be done 
 by the lessor. But when an estate is, strictly speaking, on condition 
 in deed, the law permits it to endure beyond the time when the con- 
 tingency happens, unless the grantor, or his heirs' or assigns, take 
 advantage of the breach of the condition, and make either an entry 
 or claim in order to avoid the estate. '^^ Where the provision was that 
 after the breach of the condition by the lessee's non-performance of 
 
 ^ Dennison v. Read, 3 Dana " Wheeler v. Dascomb, 3 Cush. 
 
 (Ky.) 586. (Mass.) 285. 
 
 '"Verplanck v. Wright, 23 Wend. "^Winn v. State, 55 Ark. 360, 18 
 
 (N. Y.) 506, citing Bacon's Abr. tit. S. W. 375. 
 
 Condition, G. Co. Litt. 203, b.; Ship. ■' 2 Black. Com. 155; Fifty Asso- 
 
 Touch. 122. ciates v. Rowland, 11 Mete. (Mass.) 
 
 '^Kew V. Trainor, 150 111. 150, 37 99; Wheeler v. Dascomb, 3 Cush. 
 
 N. E. 223, 50 111. App. 629. (Mass.) 285; 4 Kent 132. 
 
 '= Texas &c. Co. v. Lawson, 10 Tex. 
 Civ. App. 491, 31 S. W. 843.
 
 345 CONSTRUCTION AND EFFECT. [§ 328. 
 
 any of his covenants, the lessors may, lawfully, immediately or at 
 any time whilst such neglect or default continues, and without further 
 notice or demand, enter into and upon the said premises, the lessee's 
 estate continued until entry, notwithstanding the breach of the condi- 
 tion. The estate of the lessee was not to cease or become forfeited 
 by his non-performance of the condition, before the entry of the 
 lessors; and if no such entry had been made, the estate of the lessee 
 would have continued till the end of the term. So, if the lessors had 
 accepted rent in arrear, it would have been a waiver of the forfeiture.'^® 
 Lord Coke has said that if there be express words of condition an- 
 nexed to the estate, it cannot be construed a limitation,'^'' But this 
 rule was denied by Lord Hale to be the rule of law in all cases,'' ^ 
 and there seems to be a well founded exception to the general rule 
 of construction, that although the words be proper to create a condi- 
 tion, yet, if upon the non-performance thereof, the estate be limited 
 over to another person, this shall be a limitation; for it shall not be 
 in the power of the grantor or lessor, by his not claiming or entering, 
 to defeat the interest of such person,''^ 
 
 § 328. Running of covenants. — The common law restriction that 
 covenants would not run with the reversion**' was removed by the stat- 
 ute of Henry Eighth, which gave an action in such case both for and 
 against the assignee of the reversion.^^ While the words of this act are 
 general, it was held to extend only to covenants which touch or concern 
 the thing demised and not to collateral covenants.*^ In order that the 
 assignee may be liable on the covenants in a lease, the covenants must, 
 therefore run with the land ; must be connected with, be attached to, or 
 inhere in the land. Whether a covenant runs with the land depends 
 in the first place upon the nature and character of the particular cove- 
 nant and of the estate demised, as connected with the respective rights 
 
 '" Fifty Associates v. Howland, 11 from choice between a lord and vas- 
 
 Metc. (Mass.) 99. sal; which relationship the former 
 
 " Portington's Case, 10 Co. 35, 41. could not transfer to another with- 
 
 ■* Lady Anne Fry's Case, 1 Vent, out the latter's consent." Hadley 
 
 199, 203. V. Berners, 97 Mo. App. 314, 322, 71 
 
 ™2 Wooddeson, 143, 144; 2 Crabb S. W. 451. 
 on Real Prop., § 2136; Stearns v. "32 Hen. VIII, c. 34. 
 Godfrey, 16 Me. 158. ^= Spencer's Case, 5 Coke 16; 
 
 '""According to the accepted Webb v. Russell, 3 Term R. 393; 
 
 opinion, no covenants ran with the Bream v. Dickerson, 2 Humph, 
 
 reversion at common law. because (Tenn.) 126; Hadley v. Berners, 97 
 
 of feudal reasons connected with Mo. App. 314, 71 S. W. 451; Dolph 
 
 fealty, or the personal tie created v. White, 12 N. Y. 296, 302,
 
 § 328] COYEXAXTS IX LEASES. 346 
 
 of lessor and lessee in reference to the subject-matter of the covenant, 
 and in the next place upon the intent of the parties in the creation of 
 the estate as shown by the language of the instrument creating it.*^ 
 
 A covenant is said to run with the land when either the liability to 
 perform it or the right to take advantage of it passes to the assignee 
 of that land, and to run with the reversion when either the liability to 
 perform it or the right to take advantage of it passes to the assignee of 
 such reversion. The covenants to be within the statute must be such 
 as touch the thing demised, and are not collateral to it, as to repair, 
 for quiet enjoyment, and to surrender possession in good repair.^* 
 Familiar examples of covenants by the lessee which run with the land 
 are covenants to pay rent and covenants to pay assessments or taxes on 
 the demised premises.®^ 
 
 The question whether a covenant runs with the reversion by virtue 
 of the statute of Henry VIII is not to be confused with the difEerent 
 one as to the covenants attaching a burden or a right to land at com- 
 mon law irrespective of privity or the mention of assigns, after the 
 analogy of commons or easements or the yet different one as to the 
 transfer of the benefit of warranties or covenants for title to assigns, 
 who become privies in estate with the original covenantee. As to 
 cases not coming within the statute of Henry YIII it is generally 
 held that when the covenant is of a nature to inhere in and follow the 
 land, the benefit of it will run with the land into the hands of subse- 
 quent grantees of the covenantee, but the converse is not true. The bur- 
 den of the covenant will not follow the land into the hands of the 
 covenantor's grantee. Thus where an owner in fee of a building con- 
 veyed the top story absolutely for a perpetual annual rent and cove- 
 
 ^'Masury v. Southworth, 9 Ohio Cush. (Mass.) 442; Mason v. Smith, 
 
 St. 340. 131 Mass. 510; Constantine v. 
 
 «* Scheldt V. Belz, 4 111. App. 431. Wake, 1 Sweeny (N. Y.) 239; Post 
 
 «= Salisbury v. Shirley, 66 Cal. v. Kearney, 2 N. Y. 394, 51 Am. Dec. 
 
 223, 5 Pac. 104; Ellis v. Bradbury, 303; Smith v. Harrison, 42 Ohio St. 
 
 75 Cal. 234, 17 Pac. 3; Carley v. 180; Fennell v. Guffey, 139 Pa. St. 
 
 Lewis, 24 Ind. 23; Edmonds v. 341, 20 Atl. 1048; Bradford Oil Co. 
 
 Mounsey, 15 Ind. App. 399; Breck- v. Blair, 113 Pa. St. 83, 4 Atl. 218, 
 
 enridge v. Parrott, 15 Ind. App. 57 Am. R. 442; State v. Martin, 14 
 
 411; Hogg v. Reynolds, 61 Neb. Lea (Tenn.) 92; Shaw v. Partridge, 
 
 758, 86 N. W. 479; Darmsteatter v. 17 Vt. 626, § 411. 
 Hoffman, 120 Mich. 48, 78 N. W. ^° Jones v. Parker, 163 Mass. 564, 
 
 1014; Donelson v. Polk, 64 Md. 501; 40 N. E. 1044; Norcross v. James, 
 
 Hendrix v. Dickson, 69 Mo. App. 140 Mass. 188, 2 N. E. 946; Middle- 
 
 197; Grundin v. Carter, 99 Mass. field v. Church Mills &c. Co., 160 
 
 15; Trask v. Graham, 47 Minn. 571, Mass. 267, 35 N. E. 780. 
 50 N. W. 917; Towey v. Wallis, 3 
 
 I
 
 347 CONSTRUCTION AND EFFECT. [§ 329 
 
 nantecl to repair the roof, the burden of this covenant did not run with 
 a grant of the entire parcel so as to make the grantee personally liable 
 on the covenant, and there was no remedy at law against him. But in 
 many instances in eases of this character equity has furnished relief 
 against such grantee by declaring the burden of the covenant a lien 
 upon the land itself. ^'^ 
 
 § 329. Rule in Spencer's ease. — "Wlien the covenant extends to a 
 thing in esse parcel of the demise, the thing to be done by force of the 
 covenant is qiwdammodo annexed and appurtenant to the thing de- 
 mised, and shall go with the land and shall bind the assignee though 
 he be not bound by express words ; but when the covenant extends to a 
 thing which is not in being at the time of the demise made, it cannot 
 be appurtenant or annexed to the thing which hath no being . . . 
 and therefore shall bind the covenantor . . . and not the as- 
 signee." However, if the lessee had covenanted for himself and his 
 assigns for something to be done upon some part of the thing demised, 
 that would bind the assignee even though the covenant extended to a 
 thing to be newly made, for the assignee is to take the benefit of it, and 
 therefore he is bound by the express words.^^ 
 
 This has been qualified by a later case when the covenant is to do 
 something conditionally, as to repair new buildings if there are any. 
 When erected these buildings will be a part of the thing demised, and 
 subsequently the covenant extends to its support, and as the covenant 
 clearly binds the assignee to repair things in esse at the time of the 
 lease, so does it also those in posse, and consequently the assignee is 
 bound. There is only one covenant to repair ; if the assignee is included 
 as to part he should be included as to all.®^ But a covenant to erect 
 buildings on the demised premises or indemnify the lessee, which did 
 not name assigns, was held not to be binding upon an assignee of the re- 
 version.'^*' The same rule was applied to a covenant to buy fruit trees 
 planted upon the premises at the end of the lease.^^ 
 
 In several cases in the United States covenants relating to things 
 not in esse have been held to be confined to the original parties and to 
 be incapable of being enforced by or against third persons, unless made 
 expressly for and with assigns. It was consequently decided that a 
 
 ''Rochester Lodge No. 21 v. Gra- "'^ Minshull v. Oakes, 2 H. & N. 
 ham, 65 Minn. 457, 68 N. W. 789; 793, 808. 
 
 First Nat. Bank v. Security Bank, *" Doughty v. Bowman, 11 A. & E. 
 61 Minn. 25, 63 N. W. 264. (N. S.) 444, 63 E. C. L. 444. 
 
 '* Spencer's Case, 6 Coke 10. '^ Grey v. Cuthbertson, 2 Chit. 
 
 482.
 
 § 330] COVEXANTS IN LEASES. 348 
 
 covenant by a landlord to pay for such buildings as might subsequently 
 be erected on the demised premises by the tenant, in which assigns 
 were not named, could not be enforced by an assignee of the term and 
 was not binding on a grantee of the reversion.^^ A covenant not to as- 
 sign without license, in which assigns are not mentioned, does not 
 run with the land, for it obviously contemplates that the land shall not 
 pass into the possession of an assignee.®^ A covenant to supply heat 
 and light to leased premises is near the line, as it has been drawn be- 
 tween covenants that will and those that will not pass under the stat- 
 ute^* in respect to their nature when assigns are not mentioned.®^ But 
 in another case a covenant to tear down an old chimney and fill its 
 place with a new one was held to run with the land to assigns, whether 
 they were or were not named.^^ And the entire distinction between 
 cases where the assignee is expressly bound and those where he is not 
 mentioned has been said to be unsound and bad law.^^ 
 
 § 330. A covenant in regard to a personal matter undertaken by 
 one party to a lease and contained in the instrument of demise is not 
 binding upon the assigns of the covenantor. Although the covenant 
 be for him and his assigns, yet if the thing to be done be merely col- 
 lateral to the land and does not touch or concern the thing demised in 
 
 °= Hunt v. Danforth, 2 Curt. C. C. none of the cases is any stress laid 
 
 592; Tallman v. Coffin, 4 Comst. upon the fact that the assignee of 
 
 (N. Y.) 134; Thompson v. Rose, the lease was mentioned in the cov- 
 
 8 Cow. (N. Y.) 266; Hansen v. enant. The cases all hold that the 
 
 Meyer, 81 111. 321; Verplanck v. covenant runs with the land be- 
 
 Wright, 23 Wend. (N. Y.) 506; cause it relates to something to 
 
 Cronin v. Watkins, 1 Tenn. Ch. 119. be done upon the land for its im- 
 
 In Illinois this rule has been provement, and not because the 
 
 changed by a statute, Rev. St. 1874, assignees of the covenantor are men- 
 
 p. 659, § 15, which has been held tioned as being bound by the cov- 
 
 not to apply to covenants entered enant. The cases also hold that 
 
 into before its passage. Hansen v. when the covenant does not in fact 
 
 Meyer, 81 111. 321. run with the land, and the cov- 
 
 °^ Dougherty v. Matthews, 35 Mo. enant has no relation to the land 
 
 520; Hazlehurst v. Kendrick, 6 S. & leased, neither the assignee of the 
 
 R. (Pa.) 446; Doe v. Peck, 1 B. & lease nor of the reversion, is bound 
 
 Ad. 428. by such a covenant, though the as- 
 
 "* St. 32 Henry VIII, c. 34, § 2. signees are mentioned in the lease. 
 
 ^' Cones V. Parker, 163 Mass. 564, The rule in Spencer's case, 5 Coke 
 
 40 N. E. 564. 16, . . . does not seem to have 
 
 "^ Harris v. Coulborn, 3 Harr. been followed by the English courts 
 
 (Del.) 338. nor by many of the courts in this 
 
 ^'Ecke V. Fetzer, 65 Wis. 55, 26 country." 
 N. W. 266. Taylor J. said: "In
 
 349 CONSTRUCTION AND EFFECT. [§ 330 
 
 any way, then the assignee should not be charged. The reason why the 
 assignees, though named, are not bound is because the thing covenanted 
 to be done has not the least reference to the thing demised.®^ The 
 covenant on a sub-lease of part of a lot of land subject to a charge for 
 ground rent that the sub-lessee would hold free from liability for any 
 part of the ground rent, is not a real covenant running with the land 
 to bind the residue of the land with the entire ground rent after an 
 assignment, but with respect to such residue it is a mere personal cove- 
 nant."^ 
 
 The language of the resolutions in Spencer's case might convey the 
 impression that real covenants are only such as relate to some physical 
 thing to be made or done on the premises, but the meaning is that they 
 are such as affect the use and enjoyment of the premises by the tenant 
 or of the inheritance by the reversioner."" Many cases have held that 
 the covenant for quiet enjoyment and similar provisions in deeds, which 
 do not contemplate any change in the physical condition of the prem- 
 ises, go with the land."^ Althovigh the covenant for a renewal of the 
 lease be made in terms merely in favor of the lessee, it is well settled 
 that such a covenant runs with the land to one who, by assignment, 
 comes to stand in the place of the covenantee. Since the covenant runs 
 with the land, it is obligatory not only upon the covenantor but upon 
 his grantee. "2 A condition that no renewal need be made in case the 
 lessor wished to use the land for building purposes would also run in 
 favor of assignees. The right to renewal, in the absence of a sale of the 
 property or of the death of the lessor, was still dependent on the 
 owner's election to use the land ; this condition was inseparable from 
 the covenant of which it was an integral part."^ The stipulation in a 
 lease that if the leasehold premises should be sold during the term 
 the lessees would vacate and deliver up possession on thirty days' notice 
 in writing, shows on its face that it was intended to pass with the re- 
 version, for the purpose of it was to give the lessor the privilege of 
 conveying the property with its enjoyment undiminished by an out- 
 standing term, so that the purchaser might enter into the possession 
 immediately to make use of the premises as he desired. i*'* 
 
 "'Bally v. Wells, 3 Wils. 25. Co., 6 Phila. (Pa.) 558; Cunning- 
 
 ""Wahl v. Barroll, 8 Gill (Md.) ham v. Pattee, 99 Mass. 248; Gan- 
 
 288- nett v. Albree, 103 Mass. 372; Black- 
 
 '""Hadley v. Berners, 97 Mo. App. more v. Boardman, 28 Mo. 420. 
 
 314, 71 S. W. 451. i»3 Leppla v. Mackey, 31 Minn. 75. 
 
 ""Norman v. Wells, 17 Wend. 16 N. W. 470. 
 
 (N. Y.) 136. ^'^Hadley v. Berners, 97 Mo. App. 
 
 '"= Leppla v. Mackey, 31 Minn. 75, 314, 71 S. W. 451. 
 16 N. W. 470; Barclay v. Steamship
 
 §■ 331] COVENANTS IN LEASES. 350 
 
 § 331. Covenants affecting the mode of occupation: and enjoyment 
 of leased premises run with the land, and the assignee, though not 
 named, may be restrained by injunction from violating the same.^"^ 
 Among covenants of this nature may be mentioned covenants to repair, 
 whether by the lessor or lessee,^'*^ to leave in repair,^"'^ to maintain ex- 
 isting fences,^"® to leave land with certain crops planted,^ °^ not to plow 
 or cultivate in a certain manner,^^" and to use land in a husbandlike 
 manner and leave it in like condition.^^^ In this class would also be in- 
 cluded covenants to reside on the premises during the term,^^^ not to 
 carry on particular trades on the premises ;^^^ to erect only buildings of 
 a certain kind and use them only for a specified purpose,^^* and not to 
 erect buildings in front of the demised premises.^^^ The same doctrine 
 has been applied to a covenant to build on the premises,^ ^"^ and to a 
 covenant to build and maintain an adjoining fence.^^'' A covenant by 
 a lessee to hold the lessor railroad harmless from fires set on the prem- 
 ises is near the line. But the court before which the question arose 
 finally held that such a covenant ran with the land and could be en- 
 forced in favor of an assignee of the reversion.^^® So a covenant by a 
 lessor railway to stop trains at a leased hotel at convenient hours for 
 meals ran with the land and could be enforced by the assignee of the 
 lease. The agreement to stop trains for meals was not for a single iso- 
 lated act or series of acts to be done for the benefit of the lessee alone, 
 but the acts were to be continuous, and ran with the land for the benefit 
 of an assignee of the lease.^^^ In one case a covenant to supply the 
 
 i''^ Wertheimer v. Hosmer, 83 Hartung v. Witte, 59 Wis. 285, 18 
 
 Mich. 56, 47 N. W. 47; Dunn v. N. W. 175. 
 
 Barton, 16 Fla. 765; Wheeler v. ^°» Hooper v. Clark, 8 B. & S. 150. 
 
 Earle, 5 Cush. (Mass.) 31; Miller "» Cockson v. Cock, Cro. Jac. 125. 
 
 V. Prescott, 163 Mass. 12, 39 N. E. i" Walsh v. Watson, Esp. N. P. 
 
 409; Gannett v. Albree, 103 Mass. 295. 
 
 372; Crowe v. Riley, 63 Ohio St. 1; "^Tatem v. Chaplin, 2 H. Bl. 133. 
 
 De Forest v. Byrne, 1 Hilt. (N. Y.) "'Barron v. Richard, 3 Edw. Ch. 
 
 43. (N. Y.) 96. 
 
 ^"^ Shelby v. Hearne, 6 Yerg. "* St. Andrews Lutheran Church's 
 
 (Tenn.) 512; Allen v. Culver, 3 Appeal, 67 Pa. St. 512. 
 
 Denio (N. Y.) 284; Norman v. "° Trustees &c. v. Cowen, 4 Paige 
 
 Wells, 17 Wend. (N. Y.) 136; Myers (N. Y.) 510. 
 
 V. Burns, 33 Barb. (N. Y.) 401; "« Fisher v. Lewis, 3 Pa. L. J. 73. 
 
 Mitchell V. McNeil, 4 Colo. App. 36, "^ Bronson v. Coffin, 108 Mass. 
 
 34 Pac. 84; Carley v. Lewis, 24 Ind. 175. 
 
 23. ""Northern Pac. R. Co. v. Mc- 
 
 "^Demarest v. Willard, 8 Cow. Clure, 9 N. Dak. 73, 81 N. W. 52. 
 
 (N. Y.) 206; Myers v. Burns, 33 "' Cleveland &c. R. Co. v. Mitchell, 
 
 Barb. (N. Y.) 401. 74 111. App. 602. 
 
 "'Kellogg V. Robinson, 6 Vt. 276;
 
 351 CONSTRUCTIOX AND EFFECT. [§ 333 
 
 tenement demised with a sufficient quantity of good water was held to 
 be a covenant which respected the premises demised, and the manner of 
 enjoyment, and therefore to run with the land. "The lease does not 
 specifically point out the particular mode by which the water is to be 
 supplied/^ said Abbott; C. J., "whether by pipes, by collecting the water 
 in cisterns, or by carrying it to the premises by buckets, but it is quite 
 clear that the covenant cannot be satisfied unless a sufficient quantity 
 of good water is brought upon the premises during the term. This is, 
 therefore, a covenant which respects the premises demised and the 
 manner of enjoyment, and I have no doubt^ therefore, that it is a cove- 
 nant which runs with the land."^^** An agreement reserving to lessee 
 the right to cultivate cleared land for a certain number of years runs 
 with the land and is binding upon an assignee of the leversion.^^^ Pre- 
 caution often becomes necessary, not only for the protection of the 
 premises from injuries which might otherwise be done to them, but 
 to prevent their respectability being lessened, and their good-will 
 thereby diminished. Covenants of this kind, as they effect the mode of 
 occupation and enjoyment, run with the land.^^^ 
 
 § 332. A covenant to buy improvements at the end of the term 
 runs with the reversion. If the lessor covenanted for himself and his 
 assigns it would bind an assignee without regard to the time when the 
 improvements were erected or to stipulations requiring their erec- 
 tion.123 jj^ Qjjg gggg ^Y\e assignee was held to be bound although the les- 
 sor did not covenant for assigns. In that instance the performance of 
 the covenant to build by the lessee was beneficial to the reversioner and 
 to no other person. The house was built at the time of the assignment 
 of the lease, and the right and title to it passed to the assignee at the 
 end of the term. The covenants respecting the house had direct and 
 especial reference to the land. From these considerations the lease was 
 to be construed in all respects the same as if the words "or assigns" 
 were expressly written therein.^^* Conversely a covenant by a lessee to 
 
 "" Jourdain v. Wilson, 4 B. & Aid. Frederick v. Callahan, 40 Iowa 311; 
 
 266, 6 E. C. L. 420. Coffin v. Talman, 8 N. Y. 465; Bel- 
 
 '^ Callan v. McDaniel, 72 Ala. 96, den v. Union Warehouse Co., 11 
 
 s. c. 75 Ala. 327. N. Y. App. Div. 160, § 377. 
 
 ^=^ Wertheimer v. Circuit Judge, '"Frederick v. Callahan, 40 Iowa 
 
 83 Mich. 56, 47 N. W. 47. 311. But see Bream v. Dickerson, 
 
 "^Bailey v. Richardson, 66 Cal. 2 Humph. (Tenn.) 126, where the 
 
 416, 5 Pac. 910; Lametti v. Ander- opposite conclusion was reached, 
 
 son, 6 Cow. (N. Y.) 302; Hunt v. The court said: "A covenant to 
 
 Danforth, 2 Curt. C. C. 592; Man- run with the land must touch and 
 
 sel v. Norton, L. R., 22 Ch. Div. 769; concern it, and it is difficult to con-
 
 § 332] COVENANTS IN LEASES. 352 
 
 surrender the improvements on the premises at the end of the term is 
 one which runs with the land.^^° But a covenant to purchase chattels 
 from a lessee is not ; and therefore if a covenant by a lessor to pay for 
 shortage of grain in a leased grain elev-ator is construed as a covenant to 
 pay for chattels, it is only personal. But such would not be the true 
 construction of a lease which was peculiar in terms, the rent not 
 being a fixed sum but a certain proportion of the earnings of the busi- 
 ness. It was practically an agreement that the rent should be increased 
 or diminished by the surplus or shortage, as the case might be, which 
 should occur in the operations of the warehouse. If not technically 
 rent, it so concerned the thing demised as to run with the land. If this 
 view be correct, then the purchaser of the reversion would be responsi- 
 ble to the tenant for the amount of the shortage.^"^ However, where 
 the covenant to purchase at the end of the term extends to personal 
 chattels which are in no sense fixtures upon the demised premises, it is 
 a mere personal undertaking and will not run with the land. The 
 words "articles, matters and things" indicate movable chattels which 
 might be replaced. It is impossible to say that the chattels thus spoken 
 of are confined to fixtures. If they had been the covenant would have 
 run with the land in case the lease required the tenant to erect im- 
 provements.^-^ 
 
 If lessors before assignment are in default in respect to a covenant 
 to buy improvements they could be sued by the lessee for the breach of 
 covenant in spite of the subsequent assignment, and in that action the 
 lessee could recover the whole value of the improvements. ^^^ A cove- 
 nant which provides for payment at the end of the term for buildings 
 erected on the demised premises is not a continuing covenant, and the 
 non-payment of the amount and failure to name an appraiser in order 
 to ascertain the amount is not a "continual breach," for which the 
 grantee of the reversion would be liable though it did not happen in his 
 time.^^^ Although a covenant to repair is a continuing covenant, and 
 so imposes an obligation to repair so often as occasion arises during the 
 time, and notwithstanding prior breaches and recoveries therefor,^ ^^ 
 
 ceive how a covenant to pay a pe- ^^ Church Wardens v. Smith, 3 
 
 cuniary consideration for a house, Bur. 1271; Beddoe v. Wadsworth, 
 
 if the tenant shall think proper to 21 Wend. (N. Y.) 120; Fish v. Fol- 
 
 erect it, can be said to touch and ley, 6 Hill (N. Y.) 54; Stuyvesant 
 
 concern the estate." v. Mayor &c., 11 Paige (N. Y.) 414; 
 
 ^^Coburn v. Goodall, 72 Cal. 498, Coffin v. Talman, 8 N. Y. 465. 
 
 14 Pac. 190, 1 Am. St. 75. '=" Coffin v. Talman, 8 N. Y. 465. 
 
 ""Belden v. Union Warehouse ^''^ Kingdon v. Nottle, 1 M. & S. 
 
 Co., 11 N. Y. App. Div. 160. 355, 365; Astor v. Hoyt, 5 Wend. 
 
 ^Gorton v. Gregory, 3 B. & S. 90. (N. Y.) 603.
 
 353 CONSTRUCTION AND EFFECT. [§§ 333, 334 
 
 there is no decided case in which the assignee of a lessee has been held 
 liable upon any breach of a covenant to repair for which the lessee 
 might have been sued.^^^ 
 
 § 333. A covenant of guaranty for rent is collateral to the lease 
 it accompanies^^ ^ and is not affected by the early statute in modifica- 
 tions of the common law.^^^ A similar covenant was held by the Su- 
 preme Court of New York to pass to assigns/^* but this decision was 
 rested on the authority of an old English case/^^ where the distinction 
 Avas between covenants which take effect as easements and pass even 
 to disseisors and those pure contracts on which no one can sue except 
 parties and privies. "Although rent savors of the realty, any warranty 
 or insurance of rent is a purely personal contract of which another 
 than the original contractee can avail himself only on the principles of 
 contract." After the death of the lessor his administrator can recover 
 rent under the guaranty as trustee for the heirs. ^^"^ 
 
 A covenant in an instrument purporting to be a lease, to pay a 
 widow a sum of money annually in lieu of rent, in consideration of 
 her forbearing to exercise her right to dower, is a personal covenant 
 and cannot run with the land so as to bind an assignee of the so-called 
 lease. The right of the widow to have dower assigned to her is not such 
 an estate as can be subject to a lease.^^^ 
 
 § 334. Running of covenants after breach. — Where a covenant 
 touching the demised premises requires the performance of a single 
 act, or a series of contemporaneous acts, and not the performance of 
 acts at different times, such covenant will not run with the land after 
 breach. The distinction is between such covenants as are entire and 
 such as are of a continuing nature. The general rule that subsequent to 
 a breach a, covenant will not run seems completely established.^^^ A 
 
 "1 Coffin V. Talman, 8 N. Y. 465. "^ Croade v. Ingraham, 13 Pick. 
 
 "= Walsh V. Packard, 165 Mass. (Mass.) 33. 
 
 189, 42 N. E. 577; Virden v. Ells- "^ Gerzebek v. Lord, 33 N. J. L. 
 
 worth, 15 Ind. 144. 240; Force v. Callahan, 8 N. J. 
 
 ^'^Harbeck v. Sylvester, 13 Wend. L. G. 139; Mirick v. Bashford, 38 
 
 (N. Y.) 608. Barb. (N. Y.) 191; Day v. SWack- 
 
 "^ Allen V. Culver, 3 Denio (N. hamer, 2 Hilt. (N. Y.) 2; Hintze 
 
 Y.) 284. V. Thomas, 7 Md. 346; Grescot v. 
 
 1'= Pakenham's Case, Y. B. 42 Ed. Green, 1 Salk. 199; Church War- 
 Ill, 3, pi. 14. dens v. Smith, 3 Burr. 1271; Crane 
 
 "''Walsh V. Packard, 165 Mass. v. Batten, 28 E. L. & Eq. 137; John- 
 
 189, 42 N. E. 577, per Holmes J. son v. Church Wardens, 4 A. & E. 
 
 Jones L. & T.— 23
 
 § 335] COVENANTS IX LEASES. 354 
 
 leading case is that of Grescot v. Oreen,^^^ in which a lessee covenanted 
 for himself and his assigns to rebuild and finish a house within such a 
 time, and after that time he assigned, the house not being built and 
 finished ; and Holt, chief justice, said : "This covenant shall not bind 
 the assignee, because it was broken before the assignment, aliter if 
 broken after, as if the lessee had assigned before the time expired." A 
 covenant by the landlord to do repairs which are specified must be done 
 within a reasonable time, and will not run with the land after breach. 
 But where general repairs are agreed to be done during the tenancy, no 
 certain time being indicated, a notice to perform is necessary to put 
 the landlord in default."" A covenant to grade and inclose and im- 
 prove premises is not a continuing covenant, but one which is to be per- 
 formed within a reasonable time. So a recovery in an action for a 
 breach of such a covenant, brought after the expiration of a reasonable 
 time to perform the same, would be a bar to any further recovery of 
 damages for the breach thereof, and would also be a bar to a suit in 
 equity for the specific performance of such covenant."^ A release by 
 a lessor of his lessee from "further" liability under his lease is not a 
 release from liability for taxes already accrued and which by the terms 
 of the lease the lessee had assumed to pay. The word "further," as 
 there used, means future. ^^^ 
 
 § 335. A covenant to insure which had for its object the benefit of 
 the lessor only, as where the money paid in the event of the loss would 
 go to him, has been regarded as collateral; but if the money is to be 
 applied to repair or rebuilding, then it is in character like a covenant 
 to repair which may run with the land.^*^ What is this but in eifect 
 a modified covenant to repair and rebuild ? The insurance is to be kept 
 up, so that in case of loss by fire the sum insured shall be immediately 
 applied to rebuilding the property on the premises. Being of this char- 
 acter, it would run with the land, just as would an ordinary and abso- 
 lute covenant to repair or rebuild.^'** 
 
 520; Hawkins v. Sherman, 3 C. & P. "=0'Fallon v. Nicholson, 56 Mo. 
 
 459. 238. 
 
 "' 1 Salk. 199. . "^ Masury v. Southworth, 9 Ohio 
 
 ""Gerzebek v. Lord, 33 N. J. L. St. 340; Spencer's Case, 5 Coke 16. 
 
 240. '" Thomas v. Vonkapff, 6 Gill & J. 
 
 "^Stuyvesant v. Mayer &c., 11 (Md.) 372. 
 
 Paige (N. Y.) 414.
 
 355 FOR EEXEWAL OF LEASE. [§ 336 
 
 II. For Reneival of Lease. 
 
 § 336. A common form of lease fixes a short term for which the 
 lessee is bound to retain the premises and then gives him a right to 
 occupy them for a further period if he so desires. This can be ac- 
 complished by providing that the duration of the term under the origi- 
 nal lease shall be a variable or by a covenant on the part of the lessor 
 to execute a new and distinct lease. The mode adopted depends upon 
 the intention of the parties, as shown by the language used and the 
 attendant circumstances. The expression "renewal" suggests a distinct 
 demise, while the phrases "continue" or "he extended" have the oppo- 
 site effect. The option of extending a term two or three years is a privi- 
 lege to be exercised by the tenant during the term, and not fixed by 
 him as part of the lease. Such privileges are not uncommon, and 
 though dependent on the will of one of the parties, they do not impair 
 the mutuality of the contract. Mutuality of a contract means an obli- 
 gation on each party to do or permit to be done something in considera- 
 tion of the act or promise of the other. It does not imply that every 
 stipulation is absolute and unqualified.^*^ 
 
 In case a lease provides that the lessee may hold the premises for 
 an additional term of one, two or three years at his election, there can 
 be but one election, which may be for a further term of one, two or 
 three years, but if the election is for one of the shorter periods, the 
 privilege cannot again be exercised so as to embrace another year. 
 There is nothing in the language of such a lease which expressly gives 
 the lessee the privilege of electing more than once. Such a result 
 must be reached by construction if at all. The language of the lease 
 excludes the idea of two or three additional terms. Only one ad- 
 ditional term is provided for, and the construction that the privilege 
 is of three terms and three elections by the lessee cannot be adopted 
 without violence to the language used, while one term and consequently 
 one election is in perfect harmony with such language.^*® 
 
 A lease for one year with an agreement that if the tenant should 
 continue on the premises after the first year, then the lease should be 
 in force another year, and so on from year to year, does not create an 
 ordinary tenancy from year to year. The lessee would be tenant of the 
 premises for one year, with the option of continuing from year to year 
 for another five years, and having enjoyed all that his option gave him, 
 after six years the lessor is then entitled to the possession of the 
 
 "^ Spear v. Orendorf , 26 Md. 37. "« Falley v. Giles, 29 Ind. 114.
 
 § 337] COVENAXTS IN LEASES. 356 
 
 premises. The contention that a tenancy for one year, and so on from 
 year to year, is a tenancy for two years at least and cannot be deter- 
 mined at the end of the first year, is not valid. That a lease for a year 
 and so on from year to year is a lease binding' but for one year may 
 now be considered as the general rule.^*" 
 
 While an indorsement on the back of a lease of an agreement for a 
 further holding would ordinarily operate as an extension of the origi- 
 nal lease over a further term, it might take effect as a new demise ; and 
 such was the case where the writing contained no exceptions or reser- 
 vations and did not import to be an extension of the previous lease. 
 New and valuable considerations entered into it. More property was 
 included, and the lessor was getting valuable and permanent improve- 
 ments made without cost to himself. The indorsement must, there- 
 fore, be construed as a new leasing, and not as an extension of the old 
 lease. It superseded and cancelled the old lease.^** 
 
 § 337. A distinction between a stipulation to renew a lease and 
 one to extend it for an additional period beyond the original term, is 
 usually made. The former requires the execution of a new lease ; the 
 latter does not. Where a lease provides for an extension on a notice 
 and a verbal notice is intended, such notice will, ipso facto, extend the 
 lease for an additional term longer than one year, and is not within the 
 statute of frauds.^*^ In an early case in Wisconsin a covenant for a 
 further term provided that "in case the lessees signify their intention, 
 at the expiration of this lease, to have the same extended, the lessors 
 hereby covenant to extend the lease, provided an increased rent is 
 paid.'' Dixon, J., pronounced one opinion of an equally divided court, 
 to the effect that no new lease need l^e executed for the further term. 
 He said: "The rule ... is, not that the lease must clearly nega- 
 tive or deny the intention of the parties to make a new one, but that 
 it must clearly and positively show on its face that such ivas their in- 
 tention. If it be not so clearly and positively shown, the presumption 
 is that no new lease was intended and that the tenant was to continue 
 to hold under the original one."^^*' "The verb to extend," continues 
 
 "'Jones V. Kroll, 116 Pa. St. 85; i=" Orton v. Noonan, 27 Wis. 272, 
 
 MacGregor v. Rawle, 57 Pa. St. 184; 281. In this case the decision of the 
 
 Boyd V. Pico, 1 Hawaii 398; Dod court below had been that a new 
 
 V. Monger, 6 Mod. 215. lease must be executed, and this, 
 
 ^*^ Walsh V. Martin, 69 Mich. 29, the judges being equally divided, 
 
 37 N. W. 40. remained the decision of the court, 
 
 "° Tilleny v. Knoblauch, 73 Minn, and is the law of Wisconsin today. 
 
 108, 75 N. W. 1039, citing Orton v. Kollock v. Scribner, 98 Wis. 104, 73 
 
 Noonan, 27 Wis. 272. N. W. 776.
 
 357 POR RENEWAL OF LEASE. [§ 337 
 
 the learned justice, "implies far less in this connection than the verb 
 to renew, found in other cases. In fact, it has nothing of the same 
 strength and significance. To extend is to draw forth or stretch; to 
 prolong ; to protract ; to continue. To renew signifies to make over, to 
 make anew; to give new life to; to restore; to recreate; to rebuild." 
 The words used "are in no sense stronger or more conclusive for the 
 purpose of showing that a new lease was intended than would have 
 been the words with the privilege to have, with the privilege of keep- 
 ing, with the privilege if desired, or at the option of the lessee for the 
 further term of, which operate as a continuous lease." On one hand, 
 it seems clear that the lease will operate as a continuous demise for 
 the original term and the extension when the expression used has been 
 in the words, "with the privilege to have," "with the privilege of keep- 
 ing," "with the privilege if desired," or "at the option of the lessee 
 for the further term of."^^^ On the other hand, the expression that the 
 lessor covenants to renew the lease indicates the intention of the par- 
 ties to execute a new instrument.^^^ In accordance with the principle 
 of the foregoing decision, it has been decided that a covenant to renew 
 does not give the tenant a right to retain possession after the end of 
 the original term. His remedy is an action for damages or for specific 
 performance.^^^ A clause in a lease giving the lessee the option, on a 
 certain condition, to renew the lease for a year is not a demise to take 
 effect at the end of the first lease ; it is a mere covenant or undertak- 
 ing of the lessor to let the lessee have a second term, which may be 
 enforced on bill for specific performance, or upon which an action at 
 law may lie for a breach.^^* Such a provision is one for a renewal of 
 the lease, and not one for an extension of the term, in spite of a sub- 
 sequent clause that "at the expiration of the lease, if not extended as 
 heretofore mentioned, the lessee agrees to quit and deliver up pos- 
 session."^^^ 
 
 "^Chretien v. Doney, 1 N. Y. 419; bond signed by one party only, exe- 
 
 Munson v. Wray, 7 Blackf. (Ind.) cuted at the same time as a lease 
 
 403; House v. Burr, 24 Barb. (N. for the year, which entitled lessee 
 
 Y.) 525; Kramer v. Cook, 7 Gray to renew for five years does not 
 
 (Mass.) 550; Hall v. Spaulding, 42 constitute a present demise of the 
 
 N. H. 259. But see James v. Kib- property which can be enforced at 
 
 ler, 94 Va. 165, 26 S. E. 417, contain- law. Hunter v. Silvers, 15 111. 174. 
 ing a dictum to the contrary. "* Sutherland v. Goodnow, 108 111. 
 
 "=Orton v. Noonan, 27 Wis. 272; 528; North Chicago St. R. Co. v. Le 
 
 Kollock v. Scribner, 98 Wis. 104, Grand Co., 95 111. App. 435; Hunter 
 
 73 N. W. 776. V. Silvers, 15 111. 174. 
 
 ^"Finney v. Cist, 34 Mo. 303; "=> Shamp v. White, 106 Cal. 220, 
 
 Arnot v. Alexander, 44 Mo. 25. A 39 Pac. 537.
 
 I 338] COVEXAXTS IX LEASES. 358 
 
 So, where a lease provided that it should be optional with the les- 
 see to take the premises for a further term of two years, and the 
 privilege was accepted, it was held to be one lease for the entire time ; 
 the additional two years is not a new demise, but a continuation of the 
 old one.^^" In another case a renewal clause provided that the lessee 
 should be entitled to a four years' additional "lease ;" but it was held 
 that the word "lease" must be taken to be equivalent to "term," as 
 this clearly carried out the intention of the parties. It was all one 
 "lease" for the original and extended term.^^^ 
 
 A lease giving the lessee the option of re-leasing the premises "for a 
 term of ten years, or any part thereof," could be made valid for a 
 period beyond the original term without the execution of any new in- 
 strument by the lessor. The tenant seasonably and formally gave writ- 
 ten notice to the landlord of his election to continue the tenancy under 
 the lease for a further period of three months. This was a re-leasing 
 for that period, and at the end of that time the term expired without 
 further notice or other act. Such notice, accompanied by a continua- 
 tion of possession, was sufficient to extend the term. According to the 
 weight of authority, the clause in the lease for re-leasing should be 
 construed as a present demise to take effect in the future at the option 
 of the lessee.^^^ 
 
 § 338. On the question whether a general provision to renew a 
 lease calls for a new one, or whether at the option of the lessee it is 
 extended by the force of the covenant itself and becomes, in effect, a 
 lease for the additional term, the latter construction was favored by 
 the New Hampshire Supreme Court, and its decision"'' has been cited 
 with approval by many courts and text writers. In holding that con- 
 tinuance in possession constituted an election to hold under a renewal 
 agreement, the Missouri court said: "It is true that the word 're- 
 newal' is used, and not the words specifying that the term shall 'con- 
 tinue' or 'be extended,' etc., but the context and the intention of the 
 
 "'Fleischner v. Citizens' Inv. Co., renewal for the further term of 
 
 25 Ore. 119, 35 Pac. 174; Clarke v. two years from the expiration here- 
 
 Merrill, 51 N. H. 415. of at an annual rental of eighteen 
 
 "'Harding v. Seeley, 148 Pa. St hundred dollars." The court said: 
 
 20, 23 Atl. 1118. "We see no reason why under the 
 
 "^Willoughby v. Atkinson Fur- words quoted from the lease the 
 
 nishing Co., 93 Me. 185, 44 Atl. 612. tenant is not to be regarded as in 
 
 "'Ranlet v. Cook, 44 N. H. 512; of the additional term." Ferguson 
 
 Hall v. Spaulding, 42 N. H. 259. v. Jackson, 180 Mass. 557, 62 N. E. 
 
 The clause in one case was: "The 965. 
 lessee shall have the privilege of
 
 359 FOR RENEWAL OF LEASE. [§ 339 
 
 parties must be regarded. The privilege of a renewal is given to the 
 lessee, and in case he accepts, the lease contains everything showing 
 the contract of the parties."^*'" On the contrary, there is authority 
 that the words "renew" and "extend" should be construed in accord- 
 ance with their ordinary meaning. Obviously, one means to prolong 
 or to lengthen out, the other, to make over, to re-establish, to rebuild ; 
 and those courts and writers that have construed them accordingly 
 certainly have the best of the argument, if the judicial construction is 
 to follow the true definitions of the words. "We apprehend," said 
 Marshall, J., "that no one would seriously contend that an agreement 
 to renew a note would be satisfied otherwise than by making a new 
 note in place of the old one. It would seem that the construction ad- 
 hered to in some jurisdictions, that to renew is equivalent to extend, 
 violates the rules of language to reach a judicial construction out of 
 harmony with the universally accepted meaning of the words as de- 
 fined by lexicographers."^''^ ISTo inference can be made of an intention 
 to have a new lease executed rather than to have the original one con- 
 tinue during the extension from the fact that notice of election may 
 be given by word of mouth.^®^ 
 
 § 339. Where a lessee is entitled to the renewal of his lease, he 
 must give notice promptly at or before the expiration of the first 
 term or according to the agreement.^^^ "Being a lease with a privi- 
 lege of renewal," said Judge Henshaw in such a case, "it was incum- 
 bent upon the lessee, desiring to exercise his option, to give notice of 
 his election before the expiration of the original term; while if the 
 lease had provided merely for an extension, his remaining in posses- 
 sion (no specific form of notice having been required) would have 
 been sufficient notification of his decision."^®* "The contract was not 
 that upon the expiration of his term he might, if he so desired, con- 
 tinue in the occupancy of the premises for a further fixed period, so 
 that upon his election the further period would be only a continuation 
 of the original term. . . . The contract was for a renewal of the 
 lease for a period not fixed. ... It was incumbent on him to notify 
 
 ""Insurance &c. Co. v. National 690; City of London v. Mitford, 14 
 
 Bank &c., 5 Mo. App. 333, affirmed Ves. 41; Rubery v. Jervoise, 1 Term 
 
 71 Mo. 58. R. 229; Darling v. Hoban, 53 Mich. 
 
 ''^Kollock V. Scribner, 98 Wis. 599, 19 N. W. 545. 
 104, 73 N. W. 776. i« Shamp v. White, 106 Cal. 220, 
 
 "'Orton V. Noonan, 27 Wis. 272. 222, 39 Pac. 537; Renoud v. Daskam, 
 
 "'Thiebaud v. First Nat. Bank, 34 Conn. 512; Delashman v. Berry, 
 
 42 Ind. 212; Eaton v. Lyon, 3 Ves. 20 Mich. 292.
 
 §■ 340] COTEXAXTS IN" LEASES. 3G0 
 
 liis landlord. . . . Upon this being donej, a new agreement was to 
 cover the new term."^®^ 
 
 The lessee's election to take the renewal, made the second day after 
 the original term expired, was held to come too late. A contrary con- 
 struction would give the lessee too great latitude in regard to the time 
 for his election and make the lessor run the hazard of losing the rent 
 for a year.^®^ After the original term has been allowed to expire with- 
 out the lessee exercising his option to secure a renewal of the lease, 
 ' his holding over after the expiration of the period first designated 
 would have the same effect as if there had been no renewal agreement 
 at all, and he would become a tenant from year to year.^®'^ This would 
 be changed by a provision for a penalty of double rent in case of hold- 
 ing over. There a mere holding over for several years was presumed 
 to be under the renewal agreement, and the rights of the parties were 
 the same as if a new lease had been executed.^^* But a different rule is 
 applied in case of perpetual leases. Where the original term of a lease 
 for ninety-nine years, renewable forever, has expired, and the owner 
 of the leasehold interest has failed to obtain a renewal within the term, 
 according to the literal wording of the covenant for renewal, equity 
 will relieve him, and compel the owner of the reversion to execute a 
 new lease, provided the application be made in a reasonable time and 
 all arrearages of ground rent be first paid. But gross laches on the 
 part of the owner of the leasehold interest in seeking his relief will be 
 an insuperable bar to relief .^^^ 
 
 Where a lessor in a building lease has the option to buy the buildings, 
 at an appraised value or renew the lease, he must declare his election 
 to renew before the end of the term. But in the absence of agreement, 
 the fact of the election could be shown either orally or by writing, the 
 same as any other fact not required to be in writing. There was there- 
 fore no necessity for any formal tender of a new lease or for written 
 notice ; and after the lessee had refused to sign a new lease, it would be 
 an idle ceremony to tender him one, and the law would not require 
 it."° 
 
 § 340. When there is an option to lessee to have the same term 
 extended, no notice of an election to have the term continue is neces- 
 
 ^^ Strousse v. Bank, 9 Colo. App. '^ Insurance &c. Co. v. National 
 
 478, 484, 49 Pac. 260, per Thompson Bank &c., 71 Mo. 58. 
 
 J. '°° Banks v. Haskie, 45 Md. 207. 
 
 ^^ Renoud v. Daskam, 34 Conn. "° Darling v. Hoban, 53 Mich. 599, 
 
 512. 19 N. W. 545. 
 
 ^•"Thiebaud v. First Nat. Bank, 
 42 Ind. 212.
 
 361 rOR KEXEWAL OF LEASE. [§ 340 
 
 sary unless it is required by a clause in the lease. The additional 
 term is not a new demise, but a continuation of the old one.^^^ Where 
 the stipulation is for an extension, and no requirement for notice is 
 made, the tenant's mere continuance in possession and payment of 
 rent, though without express notice, entitles and binds him to the ex- 
 tension.^ ^^ Actual knowledge on the part of the owner of the rever- 
 sion that the lessee elected to continue the lease is all that is necessary 
 to make it good for the extension. No particular form of notice is re- 
 quired by law in such cases, the controlling consideration being what 
 is the understanding and intent of the parties. Provided no particular 
 form is stipulated for in the lease, it does not seem to be one of the 
 lessor's legal rights that knowledge of the lessee's election should be 
 conveyed to him in any one given form more than another.^^^ "What 
 more was wanted than knowledge of the lessee's intention? The con- 
 trolling consideration was the intention of the parties."^^* Thus, mere 
 holding, even for a few days, amounts to an election to take advantage 
 of the option for the longer term. It would be presumed that the 
 lessee intended to continue rightfully according to the terms of the 
 lease, rather than wrongfully in defiance of its provisions.^^^ Conse- 
 quently, there are cases which decide that where the provision for an 
 extension is at an increased rental, the holding over and the payment 
 for a time of the increased rental is sufficient evidence of an election 
 to accept the extension. ^^'^ It is proof of an election to renew that the 
 lessee pays rent regularly after the expiration of the lease and the 
 landlord accepts it.^^^ The same rule would apply where the privilege 
 of extension was conditional upon all parties agreeing.^^^ 
 
 "^Terstegge v. First German &c. R. 463; Dann v. Spurrier, 3 B. & B. 
 
 Soc, 92 Ind. 82; Relying on Mont- 399, 442; Doe v. Dixon, 9 East 15; 
 
 gomery v. Board &c., 76 Ind. 362; Cooper v. Joy, 105 Mich. 374, 63 
 
 Chandler v. McGinning, 8 Kan. App. N. W. 414; Lyons v. Osborn, 45 
 
 421, 55 Pac. 103. Kan. 650, 26 Pac. 31; Unger v. Bam- 
 
 "'Mershon v. Williams, 62 N. J. berger, 6 Ky. R. 447; Voege v. 
 
 L. 779, 42 Atl. 778; Kimball v. Ronalds, 31 N. Y. S. 353; Scheelky 
 
 Cross, 136 Mass. 300; Stater v. Kim- v. Koch, 119 N. Car. 80, 25 S. E. 713. 
 
 bro, 91 La. 217, 18 S. E. 296. '•" Kramer v. Cook, 7 Gray 
 
 "^Clarke v. Merrill, 51 N. H. 415. (Mass.) 550; Stone v. St. Louis &c. 
 
 "*Doe v. Morse, 1 B. & Ad. 365; Co., 155 Mass. 267, 29 N. E. 623; 
 
 Doe v. Biggs, 1 Taunt. 367. Long v. Stafford, 103 N. Y. 274, 8 
 
 "'Holley V. Young, 66 Me. 520; N. E. 522. 
 
 Insurance &c. Co. v. National Bank ""Harris v. Howes, 75 Me. 436. 
 
 &c., 5 Mo. App. 333, affirmed 71 Mo. "' Peehl v. Bumbalek, 99 Wis. 62, 
 
 58; Delashman v. Berry, 20 Mich. 74 N. W. 545. 
 292; Ferguson v. Cornish, 3 Term
 
 §§ 341, 343] COVENANTS IN LEASES. 363 
 
 § 341. However the lessor has a right to call on the lessee to elect 
 before the end of the term and after the lessee had done so and the 
 lessor had acted in reliance upon such election, the lessee would be 
 estopped to change his intention.^^^ Without regard to the language 
 of the lease in regard to notice of the election to renew, a lessee cannot 
 change his mind after he has led the landlord to make expenditures on 
 the faith of his statements that he will not accept the renewal term.^^° 
 But prior statements which are not acted upon by the lessor would not 
 defeat his right to exercise his option up to the end of the term. So 
 a statement by the lessee made upon the occasion of the lessor's wrong- 
 ful demand for an increased rent would not bind him. And general 
 statements of an intention to leave made to third parties would have 
 no efEect in the absence of any notice to the lessor.^^^ Yet the tenant's 
 announcement of his intention not to accept the extension would 
 override the presumption arising from his continuance in possession. 
 The mere occupancy of the land at and after the expiration of the 
 term could not be deemed an election to hold it for the extension 
 period, in the face of an express notification of a different election. ^*^ 
 Where a lessee gave notice to the lessor of his election not to accept 
 the longer term, and entered into parol agreement to hold for a short 
 time till he could get a building completed, such parol contract was 
 valid, and the lessee could not be held for rent for the longer term.^^^ 
 
 § 342. A requirement for notice of election must, in the absence 
 of waiver, be complied with, and a mere holding over would not 
 extend the term. The rule seems to be well settled that where notice 
 is required of the lessee's intention to claim the extended term, notice 
 must be given, or the intention must be otherwise manifested, and that 
 a naked holding over is insufficient to warrant a finding that the lease 
 has been extended.^** The election to retain the premises for the en- 
 larged term and the giving notice thereof to the lessor are conditions 
 precedent to the extension of the term. In case of failure to perform 
 these conditions, the term expires by its own limitation, the lease then 
 becomes inoperative, and the lessor is entitled to the possession of the 
 premises.^^^ In one case there was a stipulation that by the giving 
 
 "» Chandler v. McGinning, 8 Kan. ^" Barnett v. Feary, 101 Ind. 95. 
 App. 421, 55 Pac. 103; Barnett v. ^^^ Storch v. Harvey, 45 Kan. 39, 
 
 Feary, 101 Ind. 95. 25 Pac. 220. 
 
 ""Greiner v. Cota, 92 Mich. 23, ^^ Cooper v. Joy, 105 Mich. 374, 
 
 52 N. W. 77. 63 N. W. 414. 
 
 ^^ Hughes V. Windpfennig, 10 Ind. '"' Bradford v. Patten, 108 Mass. 
 
 App. 122, 37 N. E. 432. 153.
 
 363 rOR RENEWAL OF LEASE, [§ 342 
 
 of a certain notice the lease itself should cover an additional four 
 years. This was an unconditional lease for the first period and a con- 
 ditional lease for four years thereafter. The condition was the giving 
 of a certain notice by the lessee, but it might just as well have been the 
 happening of an event over which neither party had control, such as 
 the death of a person or the falling of a tree. When such required 
 event happened, the condition was satisfied and the lease became a 
 lease for the additional period by its own terms. The act of the lessee 
 in giving notice was not the making of an agreement, but the perform- 
 ance of a condition.^^*^ Accordingly, the requirement for written no- 
 tice may be waived by the lessor. There is a waiver when notice is given 
 by parol and no objection is made because it is not in writing, there 
 being no reason why such a right as this should not be waived by parol. 
 Such a waiver is not contrary to any principle of public policy or posi- 
 tive law. The circumstances in which rights stipulated for, whether in 
 writing or otherwise, may be waived are numerous and variant, and es- 
 tablished by many decisions. No question as to the application of the 
 statute of frauds arises. The right of extension was fixed by and was 
 part of the original contract. The lease itself created and defined the 
 extension term, and the statute of frauds had nothing to do with the 
 case.^^^ Moreover, it seems that, as far as the lessee is concerned, he 
 elects to exercise the option for an extension of the term by the mere act 
 of holding over. Though, of course, such acts do not bind the lessor be- 
 
 "" Sheppard v. Rosenkrans, 109 creation and existence upon a mere 
 
 Wis. 58, 85 N. W. 199. oral understanding. This is inad- 
 
 '" McClelland v. Rush, 150 Pa. St. missible under the statute which 
 
 57, 24 Atl. 354; Bradford v. Patten, makes void all leases for more than 
 
 108 Mass. 153; Stone v. St. Louis one year which are not evidenced 
 
 Stamping Co., 155 Mass. 267, 29 N. by writing. This statute was aimed 
 
 E. 623. Judge Cooley reached the at precisely such mischiefs as ap- 
 
 opposite conclusion on similar facts pear in this case, where an oral 
 
 in the case of Beller v. Robinson, lease for years is set up against the 
 
 50 Mich. 264. He said: "It is con- denial on oath of the supposed les- 
 
 tended, however, that the require- sees that they ever made it; and no 
 
 ment of a written notice was one mere waiver of the parties can ob- 
 
 the parties might waive, and that viate the necessity of obeying the 
 
 they did waive it in this case when statute in such a case." 
 the defendants gave oral notice of The answer to these objections 
 
 tiaeir intention to retain possession is that the requirement for written 
 
 and the plaintiffs allowed them to notice is created by the agreement, 
 
 do so as if the notice were in due not by the statute. In dispensing 
 
 form. But the difficulty with this with such notice, they vary the 
 
 agreement is that it makes an es- agreement, but not the statute, 
 tate for three years depend on its
 
 §■ 343] COVENANTS IN LEASES. 364 
 
 cause there lias been no compliance with the requirement for notice in 
 writing. But by accepting the rent the lessor has been held to waive the 
 requirement for notice.^^® Acceptance of a notice not seasonably given 
 is a waiver of the condition as to the time of giving notice. There are 
 few cases where the time within which an act is required to be done may 
 not be waived by the parties where the rights of others are not affected, 
 and acceptance of the notice and action upon it without objection show 
 an undoubted waiver.^^^ 
 
 A provision for giving notice of election pjior to the end of the term 
 is for the benefit of the lessor merely. In a lease where thirty days' 
 notice of an election to renew at an increased rent was required, it was 
 provided that a mere holding over should be at the same rent. Lessee 
 held over, paying increased rent, but without giving the required 
 notice. It was held he had elected to accept the extension by so doing. 
 No writing was necessary, and no formal action, if in fact the lessee 
 elected to hold for the longer term, and if he gave thirty days' notice 
 of the election, or the lessor waived the giving of notice. The pro- 
 vision that if the lessee held over the rent should be at the original 
 rate made the payment of increased rent significant. These facts were 
 enough to justify a jury in finding an election to continue the lease.^'**' 
 In one case a lease for the term of one year provided that it should be 
 deemed to be renewed and in force for another year and so on from 
 year to year unless sixty days' notice to quit was given. It was held 
 that sixty days' notice prior to the end of the first year must be given 
 to terminate tenancy, even though the lease contained a covenant on 
 part of lessee to deliver peaceable possession at the end of the term.^®^ 
 
 § 343. Validity of covenants to renew. — A covenant to renew for 
 another term carries with it by implication an agreement to renew on 
 the same terms and conditions as to all the essential conditions of the 
 lease. Such a covenant is not void for uncertainty because of the fail- 
 ure to specify the terms. The words used imply the same terms as 
 those contained in the first lease, except any provision for further re- 
 newal which would tend to create a perpetual lease. Such a provision 
 must be supported by language clear and certain, and could not be 
 deduced by construction from a general agreement.^^^ The words "ex 
 
 1^ Probst V. Rochester &c. Co., 171 "" Stone v. St. Louis Stamping 
 
 N. Y. 584, 59 App. Div. 625, 64 N. E. Co., 155 Mass. 267, 29 N. E. 263. 
 
 504; Long v. Stafford, 103 N. Y. 274, ^°' Wilcox v. Montour &c. Co, 147 
 
 8 N. E. 522. Pa. St. 540, 23 Atl. 840. 
 
 "''Sheppard v. Rosenkrans, 109 "^Kollock v. Scribner, 98 Wis. 
 
 Wis. 58, 85 N. W. 199. 104, 73 N. W. 776; Rutgers v. Hun-
 
 3G5 FOR RENEWAL OF LEASE. [§ 34:3 
 
 ■vi termini' import the giving a new lease like the old one, with the 
 same terms and stipulations, at the same rent, and with all the essen- 
 tial covenants."^ To this rule there is one exception, equally well estab- 
 lished with the rule itself. The renewal covenant is not to be inserted 
 in the new lease ; that agreement is satisfied and exhausted by a single 
 renewal. An agreement to renew toties quoties will not be inferred in 
 the absence of words clearly pointing to that intention.^''* Still, a cove- 
 nant in a lease for the perpetual renewal thereof is valid, and passes 
 as an incidental when the lease is assigned by a proper description.^®^ 
 The rule in England, as deduced from all the authorities, has been 
 said to be "that a covenant to receive the construction of perpetual re- 
 newal must be plain and distinct, and such as to bear no other con- 
 struction without force and violence done to the words and the con- 
 text.""® In accordance with the rule that an ordinary covenant for re- 
 newal does not imply a perpetual renewal and it is sufficient to give a 
 renewal for one term only, a lessor agreeing to renew or pay for 
 improvements satisfies his agreement by a single renewal, and after 
 the renewal term expires can recover the premises without paying for 
 improvements.^®^ However, a lessor's covenant to buy improvements 
 at the end of the term or renew the lease binds him to make a renewal 
 for a substantial period, and his covenant is not satisfied by making a 
 renewal for one day. "It would be worse than farcical," say the court, 
 "to hold that within the contemplation of the parties to this lease an 
 extension of one day would meet its requirements." The evident in- 
 tention was that the lessor should buy the improvements or renew the 
 lease for the period of the original term, and the word "extension" 
 
 ter, 6 Johns Ch. (N. Y.) 215; Cun- 472; Whitlock v. Duffield, Hoffm. 
 
 ningham v. Pattee, 99 Mass. 248; Ch. (N. Y.) 110; Price v. Assheton, 
 
 Ranlett v. Cook, 44 N. H. 512; Mc- 1 Y. & Col. Exch. 82; Rickards v. 
 
 Adoo V. Callum, 86 N. Car. 412; Rickards, 2 Y. & Col. Ch. 419, 427. 
 
 Tracy v. Albany Exch. Co., 7 N. Y. "* Hyde v. Skinner, 2 P. Wms. 
 
 472; Western Transp. Co. v. Lans- 196; Davis v. Taylors Co., 3 Ridg. 
 
 ing, 49 N. Y. 499; Hughes v. Wind- P. C. 395; Tritton v. Foote, 2 Bro. 
 
 pfennig, 10 Ind. App. 122; Carr v. Ch. 636, s. c. 2 Cox Ch. 174; Moore 
 
 Ellison, 20 Wend. (N. Y.) 178. v. Foley, 6 Ves. 232; Iggulden v. 
 
 Contra, Laird v. Boyle, 2 Wis. 431. May, 9 Ves. 325, s. c. 7 East 237. 
 
 ^"^ Cunningham v. Pattee, 99 Mass. "= Blackmore v. Boardman, 28 Mo. 
 
 248; Willis v. Astor, 4 Edw. Ch. 420; Diffenderfer v. St. Louis Pub. 
 
 (N. Y.) 594; Rutgers v. Hunter, 6 Schools, 120 Mo. 447, 25 S. W. 542. 
 
 Johns. Ch. (N. Y.) 215; Carr v. El- ""Browne v. Tighe, 8 Bligh N. S. 
 
 lison, 20 Wend. (N. Y.) 178; Pig- 272; Banks v. Haskie, 45 Md. 207. 
 
 got V. Mason, 1 Paige (N. Y.) 412; ""King v. Wilson, 98 Va. 259, 35 
 
 Tracy v. Albany Exch. Co., 1 N. Y. S. E. 727.
 
 § 344] COVENANTS IN LEASES. 366 
 
 was used with that meaning. The construction claimed by the lessor 
 would make the contract very one-sided. ^^^ 
 
 Many adjudications may be found to the effect that covenants to 
 renew must specify the terms and conditions of the renewal or fail for 
 want of certainty, but that requisite is met and satisfied by the con- 
 struction of the general promise to renew in connection with the lease 
 to which it refers. When the agreement for a renewal contains lan- 
 guage other than that appropriate to a general promise, so that by 
 resort to the settled rules for construction the language of the general 
 covenant to renew and conditions of the renewal cannot be made cer- 
 tain, then such covenant fails for want of certainty.^^** The ordinary 
 meaning of a renewal clause is that the lessees, may have the premises 
 for the same rent they have been paying. To allow the lessor to change 
 the terms of the proposed renewal is to remove the binding force of his 
 obligation altogether. 2"** 
 
 Where it appeared that the owners had been in the habit of renewing 
 a lease from time to time, an attempt was made to give this fact the 
 aspect of an English customary tenant right. But the evidence merely 
 showed that the landlords and the tenants were mutually satisfied and 
 were likely to keep on together. Changeable intentions are not an in- 
 terest in land, and although no doubt such intentions may have added 
 practically to the value of a holding, they could not be taken into ac- 
 count in estimating damages. They added nothing to a tenant's legal 
 rights, and legal rights are all that must be paid for. Even if such 
 intentions added to the saleable value of the lease, the addition would 
 represent a speculation on a chance, not a legal right.^°^ In another 
 case the opposite result was reached, on the ground that it was not a 
 question of the permanency of the title, but of the saleable value of 
 such interest as the lessee had. It could be shown that the premises, 
 though held by a precarious tenure, had a large market value, and 
 the jury had a right to consider the probability of a renewal of the 
 term.-°^ 
 
 § 344. A renewal agreement cannot be made to apply to sub- 
 divisions of the premises but must be claimed in its entirety. If the 
 
 ^«« Phillips V. Reynolds, 20 Wash. =<» McAdoo v. Galium, 86 N. Car. 
 
 374, 55 Pac. 316. 419. 
 
 "» Tracy v. Albany Bxch. Co., 7 ^' Emery v. Boston Terminal Co., 
 
 N. Y. 472; Kollock v. Scribner, 98 178 Mass. 172, 59 N. E. 763. 
 
 Wis. 104, 73 N. W. 776; Whitlock v. =»= Mayor &c. v. Rice, 73 Md. 307, 
 
 Duffield, Hoff. Ch. (N. Y.) 110; 21 Atl. 181. 
 Abeel v. Radcliff, 13 Johns. (N. Y.) 
 297.
 
 367 POR RENEWAL OF LEASE. [§ 345 
 
 privilege of another term is of the entire premises, it follows that, by 
 voluntarily surrendering a part of them, the lessee, in the absence of 
 an agreement to the contrary, waived his right to a renewal or exten- 
 sion of the lease. The option would be for a lease of the entire prem- 
 ises, and not of a part of them.^°^ However, a lessor cannot refuse to 
 grant a renewal on the ground that parts of the premises have passed 
 to different owners. A lease with a privilege of renewal contained a 
 covenant upon the part of the lessee to sublet to certain persons who 
 were in possession of different parts of the premises under ground 
 leases. The original lease was assigned, and the assignee and the vari- 
 ous sub-tenants applied for a renewal of the lease. It was granted 
 that, as the lessee could not renew for a part of the premises, his as- 
 signee could not do so. But all the assignees might join in asking the 
 lessee to secure a renewal and force him to act in their behalf. So the 
 landlord, after leading the assignees to believe he would deal with 
 them directly and not insist on action by the lessee, could not deny 
 the renewal right to any one of the various parties claiming it.^°* 
 
 § 345. Parties bound and parties entitled under renewal agree- 
 ments. — In case there are several lessees, one of them has no power in 
 the absence of special authority to extend a renewal agreement by 
 giving the required notice. There could be no action without the con- 
 currence of all. Any one of the lessees had the right to object to the 
 extension of the lease, or to have a voice in saying what terms were 
 satisfactory if a new lease were entered into.^**^ But where a lessor 
 who is under obligations to grant a renewal lease dies, the lessee is en- 
 titled to have the lease renewed by every one who had or claimed to 
 have an interest in the property as the representative of the lessor. 
 All real and supposed interests should unite in the renewal of the 
 lease, and leave it open for future decree to determine their inter- 
 ests.^°® On the other hand, the death of the lessee does not render the 
 
 ^°' Barge v. Schick, 57 Minn. 155, for the entire renting and the grain 
 
 58 N. W. 874. rent would pay for the pasture land 
 
 ^* Cook v. Jones, 96 Ky. 283, 28 during the continuance of the re- 
 
 S. W. 960. In one case there was a newal term. Miller v. Finch, 12 111. 
 
 lease of a farm of eighty acres for App. 170. 
 
 a stipulated sum, fifty acres being ^= Howell v. Behler, 41 W. Va. 
 
 in grain and the rest being in pas- 610, 24 S. E. 646. 
 
 ture, with option in lessee to lease ''^' Bratt v. Woolston, 74 Md. 609, 
 
 for two years longer for same sum 7 Atl. 563. 
 or for crop rent. This was a contract
 
 § 3-16] COVEXAXTS IX LEASES. 368 
 
 covenant invalid or inoperative; the legal transferee of the term may 
 exercise the right to have a renewal.-"^ 
 
 § 346. Where there is an agreement for arhitration to fix the 
 amount of rent in a renewal lease and the landlord is ready to pro- 
 ceed, but the lessee refuses to do so after being notified, the landlord 
 can collect the rent which he notified a tenant he should charge after 
 the expiration of the former term.-**^ But the landlord could not sue 
 for a reasonable rent without showing that he had tried and failed to 
 have an appraisal made, as provided in the lease. In case the rent 
 under a lease is to be fixed by appraisal, then, if the referees appointed 
 under the contract or lease to make the appraisal are unable to make 
 it, the lessor will be entitled to sue for a reasonable rent. This right 
 to sue depends upon a condition precedent, namely, his having tried to 
 get the rent fixed in pursuance of the terms of the lease, and failing to 
 do so.^^® At the end of the term the parties failed to agree upon a sale 
 or renewal in one case, and referees were chosen, who made and signed 
 upon the lease the following indorsement : "This lease is renewed by 
 arbitration, for the term of five years, at the yearly rent . . . pay- 
 able on the same terms as the first five years, excepting from the op- 
 eration of this lease any assessment for stone pavements." The sense 
 of this award was held to be plain enough, and while the lessee might 
 be at liberty to refuse to abide by it because it bound him to pay ordi- 
 nary taxes, after he accepted it the lease was renewed upon the original 
 terms, with the exception made by the referees themselves and the 
 further exception of the provision for renewal which had spent itself.-^" 
 
 A contract to renew at a rate of rent fixed by arbitration will not be 
 specifically enforced in equity until the arbitration is complete. It is 
 well settled that courts of equity will never entertain a suit to compel 
 parties specifically to perform an agreement to submit to arbitra- 
 tion.^^ ^ So the real ground of the difficulty is that the contract is still 
 
 ^"Kolasky v. Michels, 120 N. Y. ""Brand v. Frumveller, 32 Mich. 
 
 635, 24 N. E. 278; Kolasky v. Mich- 215. 
 
 els, 2 Silv. (N. Y.) 581, affirming 46 "^ Greason v. Keteltas, 17 N. Y. 
 
 Hun 677. 491; City of Providence v. St. 
 
 ="^ Wells V. DeLeyer, 1 Daly (N. John's Lodge, 2 R. I. 46; Dike v. 
 
 Y.) 39.' Greene, 4 R. I. 285; Gourlay v. Duke 
 
 ^ Sherman v. Cobb, 16 R. I. 82, of Somerset, 19 Ves. 429 ; Milnes v. 
 12 Atl. 232; Phippen v. Stickney, 3 Gery, 14 Ves. 400; Blundell v. Bret- 
 Mete. (Mass.) 384, 389; Stose. v. targh, 17 Ves. 232; Morgan v. Mil- 
 Heissler, 8 West. R. 441, 445; Uhrig man, 17 E. L. & Eq. 203. 
 V. Williamsburg City Fire Ins. Co., 
 101 N. Y. 362, 4 N. E. 745.
 
 369 FOR RENEWAL OF LEASE. • [§ 347 
 
 incomplete, the parties not having fixed the amount of rent to be paid, 
 which is an essential ingredient in the lease to be made. The contract 
 which the court is called on to enforce is not an existing contract. Its 
 terms are still to be settled by arbitrators.-^^ However, there seems to 
 be a doctrine in the later cases that equity will, to prevent a failure of 
 justice, apply its own remedies, and thus, where the substantial terms 
 of a contract are agreed upon, arrive approximately at the minor de- 
 tails and then specifically enforce the contract.^^^ In the case of a 
 covenant of this kind, it is obvious that it is not of the essence of the 
 contract that the valuation should be made by appraisers rather than 
 by a court of equity. That is an immaterial detail, and a mode as 
 effectual and fair can be found.^^^ The case presents a slightly differ- 
 ent aspect when the option lies with the lessor to renew or to buy or 
 sell the premises at an appraised valuation. Where the lessor failed 
 to exercise his option, and the lessee elected to buy, it was held that an 
 action for rent during the renewal period "would be enjoined until the 
 lessor had appointed an appraiser to value the land in accordance with 
 the terms of the lease.^^^ 
 
 The weight of American authority supports the conclusion that in 
 cases of 'the same general character as this equity will take jurisdiction 
 and grant such relief as may seem to be most expedient or most in 
 accord with the spirit of the agreement looking to the sale of the 
 property.2^^ So, where a lease provided that there should be a revalu- 
 ation for rent every ten years, and such revaluation became impossible 
 because of the infancy of some of the parties, it was held that a party 
 injured could resort to a court of equity for redress and to have a 
 proper valuation made under the direction of the court. Such action 
 is not equivalent to an award or arbitration within the technical mean- 
 ing of those terms.^^'^ 
 
 § 347. A conditional covenant to renew upon the termination of 
 the lease is not a present demise to take effect upon the termination 
 of the first year, but a mere covenant to execute a lease in the future. 
 
 "= Hopkins v. Gilman, 22 Wis. 476. Tscheider v. Biddle, 4 Dill. (U. S.) 
 
 "^ Strohmaier v. Zeppenfeld, 3 Mo. 55. 
 
 App. 429; Backus' Appeal, 58 Pa. ""Lowe v. Brown, 22 Ohio St. 
 
 St. 186, 193; Parker v. Taswell, 2 463; Tobey v. County of Bristol, 3 
 
 De G. & J. 559; Norris v. Jackson, Story (U. S.) 800; Biddle v. Ram- 
 
 3 Gif. 396. sey, 52 Mo. 153; Hug v. Van Burk- 
 
 "' Strohmaier v. Zeppenfeld, 3 Mo. leo, 58 Mo. 202. 
 
 App. 429. ==" Holmes v. Shepard, 49 Mo. 600. 
 
 =" Coles v. Peck, 96 Ind. 333; 
 Jones L. & T.— 24
 
 § 347] COVENANTS IN LEASES. 370 
 
 The evident intention of the parties, as disclosed by such a stipula- 
 tion, is that if the contingency named does not occur a new lease is to 
 be executed for a second year. It is merely an executory covenant for 
 a lease, and not an executed covenant passing a present interest. If the 
 lessee never accepts a renewal of the lease, but refuses to do so, and 
 vacates the premises at the end of the original term, the lessor cannot 
 maintain an action for rent. His only remedy would be either an ac- 
 tion to enforce specific performance of the covenant by compelling the 
 lessee to accept a renewal or an action on the covenant for damages for 
 its breach.^^^ Where there was a lease for a year and agreement that 
 if it were satisfactory the premises would be leased to him another 
 year, it was held that the tenant did not have an estate in the land for 
 the second year.^^^ In the absence of conditions, however, a lessee,. 
 having exercised his right to demand a renewal of an expiring lease, is. 
 entitled to it, and to remain in possession as long as he complies with 
 its requirements and conditions. Although a provision for renewal is. 
 not itself a renewal so as to vest an estate in the lessees for the suc- 
 cessive term, it gives them an equity which will be recognized as a de- 
 fense to a proceeding for the ejectment of the lessees under the sum- 
 mary process provided in the statute against tenants holding over after 
 the expiration of their term. But the lessees asserting their right to- 
 retain the possession must take it cum onere and pay the rent.^^° 
 
 Stipulations that a lessee should notify the landlord of his election 
 before a certain date, and that he should secure future rent on that 
 date to the satisfaction of the landlord, take effect as conditions pre- 
 cedent to the renewal, and the lessee is bound to comply with them 
 without notice or demand. Such conditions are most evidently prece- 
 dent to the renewal or continuance in force of the lease, and unless 
 they are performed the instrument ceases to operate for a future term. 
 The one act — notice — is no more essential than the other, and if one 
 could be omitted both could be. A demand upon the lessee is unneces- 
 sary to defeat the lease upon his failure to perform its conditions. 
 The instrument was not to become forfeited upon failure to give the 
 notice and security, but was to be kept in force by these acts. If it 
 became forfeited upon a failure to perform, then a demand for per- 
 formance might be required. But as these acts were to renew, to keep 
 it in force, no demand was necessary. In the first case, it would not 
 have been forfeited except upon the act or option of the lessor ; in the 
 
 ="^ Sutherland v. Goodnow, 108 111. «» Mullen v. Pugh, 16 Ind. App. 
 528; Swank v. St. Paul City R. Co., 337. 45 N. E. 347. 
 61 Minn. 423, 63 N. W. 1088. "» McAdoo v. Galium, 86 N. Gar. 
 
 419. 
 
 I
 
 3T1 rOR RENEWAL OF LEASE. [§ 348 
 
 last, it ceased to operate unless certain acts were done by the lessee, 
 and no act of the lessor was required to terminate its operation. The 
 lessee's acts being necessary to keep the instrument in force, he was 
 bound to perform them without notice or demand.^^^ 
 
 § 348. Happening of contingency. — A covenant by lessees to take 
 a further term in the premises in case the lessor purchased them would 
 only become binding upon the lessor acquiring the legal title. The 
 only contingency upon which the lessees were required to renew was 
 that the lessor should, during the term mentioned in the lease, "pur- 
 chase the title in fee simple to the premises." This condition was not 
 satisfied by a mere agreement for such title, and a title acquired sub- 
 sequently was not available to the lessor.^"^ Where a lease contained an 
 option to the lessee to renew provided lessor did not sell the farm, it 
 was held that an open sale was intended, and that in the absence of 
 notice of a sale brought home to lessee, the vendee with notice of the 
 lease would be bound by the contract in regard to the option entered 
 into between the lessor and lessee. -^^ Where a lease for the term of one 
 year with the privilege, if both parties are suited, of longer lease for a 
 term of eight years, reserves the right to sell part or all, the fair con- 
 struction is that the lease should terminate upon a sale of the premises 
 or, if of a portion of them, as to the part sold.-^* In case a covenant for 
 renewal was to be void if the premises were sold, it was held that the 
 sale might take place before or after the renewal began to run, and 
 nevertheless have the effect of nullifying the covenant for renewal. 
 By the fair construction of the language used, the privilege of the two 
 years was to be void in case of a sale of the premises at any time either 
 before the two years should commence or after they were running. 
 There was no limitation of time within which the sale spoken of should 
 take place in order to terminate the privilege.^^^ 
 
 A stipulation in a lease for two years that if the lessor sells within 
 the first year the sale shall be subject to the lease for that year, and if 
 afterwards that it shall be subject to the lease for the two years, or to 
 such compromise as the parties shall enter into, requires the lessee to 
 give up possession at the end of the first year if sale is made within 
 that year.^^^ 
 
 =" McFadden v. McCann, 25 Iowa =^ Wallace v. Bahlhorn, 68 Mich. 
 
 252. 87, 35 N. W. 834. 
 
 =" Elevator Co. v. Brown, 36 Ohio -' Knowles v. Hull, 97 Mass. 206. 
 
 St. 660. "' Jochen v. Tibbells, 50 Mich. 33, 
 
 =" Starkey v. Horton, 65 Mich. 96, 14 N. W. 690. 
 31 N. A. 626.
 
 349] COYEXAXTS IX LEASES. 
 
 III. For Quiet Enjoyment. 
 
 § 349. When implied. — To give value to the interest of a lessee it 
 is essential that his possession of the premises should not be disturbed 
 by one holding a paramount title or by the lessor himself. This is 
 often provided for by an express covenant in the lease, or such a cove- 
 nant is raised as an implication of law from the words used to transfer 
 the estate. Leases were not originally regarded as estates in the land, 
 but as contracts for the perception of the profits. The possession of the 
 lessee was not regarded as in his own right, but as the possession of 
 the grantor, and the destruction of the freehold was attended with 
 the destruction of the lease, giving a lessee no means of redress except 
 upon the contract. A warranty, therefore, is implied in a lease in a 
 different sense from the implied warranty in a freehold. The latter 
 depends on tenure, the former on contract. The remedies, too, were 
 originally different. Hence a warranty is implied from any contract 
 for the possession of lands amounting to a lease for years, no matter 
 in what words it is framed ; but a warranty of a freehold is not implied 
 except from the feudal term of donation. No other word will answer — 
 the words "grant, bargain and sell" raise no warranty of a fee.--' 
 But the words "grant and demise''^^ and, when standing alone, the 
 word "demise" in a lease import a covenant on the part of the lessor of 
 good right and title to make the lease and for quiet enjoyment.--^ 
 
 The prevailing rule in the United States seems to be that a covenant 
 for quiet enjoyment by the lessor is implied in every demise of land for 
 years, by whatever form of words the agreement is made.^^o Although 
 
 "^ Young V. Hargrave, 7 Ohio 394. v. Saunders, 4 B. & C. 529, 10 E. C. 
 
 "^Barney v. Keith, 4 Wend. (N. L. 689. 
 
 Y) 502, 230 Arkansas: Pickett v. Ferguson, 
 
 ^» Harms v. McCormick, 132 111. 45 Ark. 177. California: McDowell 
 
 104, 22 N. E. 511; Hamilton v. v. Hyman, 117 Cal. 67, 48 Pac. 984. 
 
 Wright, 28 Mo. 199; Crouch v. Illinois: Field v. Herrick, 10 111. 
 
 Fowle, 9 N. H. 219; Style v. Hear- App. 591; Streeter v. Streeter, 43 
 
 ing, Cro. Jac. 73; Merrill v. Frame, 111. 155. Maryland: Baugher v. 
 
 4 Taunt. 329; Adams v. Gibney, 6 Wilkins. 16 Md. 35; Sigmund v. 
 
 Bing. 656; Conrad v. Morehead, 89 Howard Bank, 29 Md. 324. New 
 
 N. Car. 31. The word "demise" in York: Mack v. Patchin, 42 N. Y. 
 
 a pleading imports a title in the 167, 1 Am. R. 506; Burr v. Stenton, 
 
 lessor and implies a covenant for 43 N. Y. 462. Indiana: Hoagland 
 
 quiet enjoyment. The point here v. New York &c. R. Co., Ill Ind. 
 
 was entirely one of pleading, and 441, 12 N. E. 83; Avery v. Dough- 
 
 the lease itself was not in evidence, erty, 102 Ind. 443, 2 N. E. 123, 52 
 
 Wells V. Mason, 5 111. 84, citing Hill Am. R. 680; Smith v. Dodds, 35 Ind.
 
 373 FOR QUIET EXJOYMEXT. [§ 350 
 
 the words "grant and demise" were not used in a lease, but the word 
 'lease" was used instead, it was held that a covenant for quiet enjoy- 
 ment could be implied from this word as well as from the other two.^^^ 
 As far as the tenant's rights are concerned, according to this doctrine, 
 it is immaterial whether the lease contains such a covenant or not.'^^ 
 The law will imply a covenant against paramount title and against 
 such acts of the landlord as destroy the beneficial enjoyment of the 
 lease. -^^ On the other hand, there is a more restricted doctrine that a 
 covenant for quiet enjoyment is not to be implied from the mere rela- 
 tion of landlord and tenant, but only arises from the use of certain 
 special words. This is the rule in England, and is supported by some 
 cases in the United States.-^* According to this doctrine, the mere 
 use of the words "to let" and "to lease" in a WTitten agreement of let- 
 ting or leasing will not give rise to an implied covenant for quiet en- 
 joyment. In order to give rise to such a covenant, the words "demise," 
 "grant," or other words of like import must be used in the lease. The 
 words "to let" and "to lease" are not of such import.-^^ The New 
 Hampshire court, considering this question in 1843, made the sweep- 
 ing assertion that "iSTo case is to be found where the words 'let and 
 lease' imply a covenant for quiet enjoyment."-^*' 
 
 If the parties to a lease contemplate a possible sale of the premises 
 under a right reserved in the lease, and a consequent termination of 
 the tenancy, it would be against the intention of the parties to imply 
 a covenant which amounts to a warranty against an eviction by a pur- 
 chaser of the land. A provision allowing the lessee to remove his im- 
 provements in case of a sale, which were otherwise to be left on the 
 premises, supports this construction, and compensates the lessee for 
 the loss of the balance of the term.^^^ 
 
 § 350. The rule that where an instrument contains an express 
 covenant, in regard to any subject, no covenants are to be implied in 
 
 452. Ohio: Young v. Hargrave, 7 rington v. Casey, 78 III. 317; Field 
 
 Ohio 394. Oklahoma: Hanley v. v. Herrick, 10 111. App. 591. 
 
 Banks, 6 Okla. 79, 51 Pac. 664. =^ Gano v. Vanderveer, 34 N. J. L. 
 
 Pennsylvania: Maule v. Ashmead, 293; Mershon v. Williams, 63 N. J. 
 
 20 Ea. St. 482. Wisconsin: Eldred L. 398, 44 Atl. 211; Granger v. Col- 
 
 v. Leahy, 31 Wis. 546. United lins, 6 M. & W. 458. 
 
 States: Owens v. Wight, 18 Fed. =='= Mershon v. Williams, 63 N. J. 
 
 865; Rawle Gov. Tit. (5th Ed.) 272. L. 398, 44 Atl. 211. 
 
 -^^ Hamilton v. Wright, 28 Mo. 199. ='° Lovering v. Levering, 13 N. H. 
 
 '^' Hanley v. Banks, 6 Okla. 79, 51 513. 
 
 Pac. 664. =»^ O'Connor v. Daily, 109 Mass. 
 
 =''Wade V. Halligan, 16 111. 507; 235. 
 Hayner v. Smith, 63 111. 430; Ber-
 
 § 350] COVEKANTS IX LEASES. 374 
 
 respect to the same subject, has been declared to be too familiar to re- 
 quire more than its statement.-^^ "An express covenant," it is stated 
 in Cruise on Eeal Property, "will qualify the generality of an im- 
 plied covenant, and restrain it so that it shall not extend farther than 
 the express covenant."^^^ But at common law other covenants may be 
 implied in addition to express covenants, provided they are not incon- 
 sistent with those which are expressed.^*" Since the days of Lord 
 Coke it has been considered settled law that, although there may be 
 both express and implied covenants in a lease, yet the covenants im- 
 plied from the use of the words of demise will be modified or re- 
 strained by express covenants.^*^ The implied covenant for quiet en- 
 joyment arising from the use of the word "demise" in a lease is modi- 
 fied and restrained by the presence of an express covenant on the part 
 of the lessor to the effect that he covenants against interruption by 
 himself or his successors. "The parties ha\dng entered into express 
 agreements, it cannot be supposed that they intended by any general 
 language of the deed anything inconsistent with those express cove- 
 nants or which might otherwise have implied an undertaking of a 
 more enlarged character."-*^ But an express and unqualified general 
 covenant for quiet enjoyment in a lease is not limited by a subsequent 
 special covenant reciting that certain persons had an interest in the 
 premises and binding the lessor to hold the lessee harmless against 
 such claims.-*^ 
 
 A guardian leasing land of ward cannot bind his ward's estate by 
 a general covenant for quiet enjoyment ; like executors and trustees, 
 he can only covenant against having suffered any act which would 
 impeach the title. Therefore, when a guardian covenants generally for 
 quiet enjoyment, he is personally liable on his undertaking, and the 
 ward's estate is not bound by it.-** 
 
 '^Burr v. Stenton, 43 N. Y. 462; 7 Lea (Tenn.) 219; Nokes' Case, 4 
 
 Vanderkarr v. Vanderkarr, 11 Coke 80. 
 
 Johns. (N. Y.) 122; Frost v. Ray- =" Crouch v. Fowle, 9 N. H. 219; 
 
 mend, 2 Caines (N. Y.) 188; Blair Browning v. Wright, 2 B. & P. 13, 
 
 V. Hardin, 1 A. K. Marsh. (Ky.) 26; Tooker v. Grotenkemper, 1 C. S. 
 
 231; Crouch v. Fowle, 9 N. H. 219; C. R. (Ohio) 88; Groome v. Ogden 
 
 Line v. Stephenson, 5 Bing. N. C. City Corporation, 10 Utah 54. 37 
 
 183. Pac. 90; O'Connor v. City of Mem- 
 
 =^ Cruise Dig, Vol. 4, p. 370, § 17. phis, 7 Lea (Tenn.) 219. 
 
 ^^ Sumner v. Williams, 8 Mass. "" Sheets v. Joyner, 11 Ind. App. 
 
 162, 201; Gates v. Caldwell, 7 Mass. 205. 
 
 68; Christine v. Whitehill, 16 S. & =" Chestnut v. Tyson, 105 Ala. 149, 
 
 R. (Pa.) 98. 16 So. 723. 
 
 ^^ O'Connor v. City of Memphis,
 
 375 FOR QUIET EXJOYMEXT. [§ 351 
 
 §351. Statutory provisions against implied covenants. — In N'ew 
 York it is provided by statute that a covenant is not to be implied in 
 a conveyance of real estate, whether the conveyance contains any 
 special covenant or not,-*^ It has been held that this section was not 
 applicable to leases for years, that such leases were not conveyances 
 of land within the meaning of the statute, and that in such leases 
 covenants for quiet enjoyment were implied.^*^ As used in this sec- 
 tion, the term real estate has been defined to mean "lands, tenements 
 and hereditaments," while in another place it was defined by the legis- 
 lature to embrace all chattels real except leases for a term not exceed- 
 ing three years. "In comparing these two definitions with each other, 
 we arrive at a pretty satisfactory conclusion that the legislature under- 
 stood the words ^ands, tenements and hereditaments' as excluding 
 terms for years in land." The legislature was dealing with words of 
 art, and is presumed to have used them in their technical sense. The 
 word lands always refers to something corporeal, and a term for years 
 is not in law a tenement or a hereditament.^'*^ 
 
 A statute of like import exists in Wisconsin which was modeled 
 after the New York act.^*® However, the legislature has provided that 
 "the term 'conveyance' as used in this chapter shall be construed to 
 embrace every instrument in writing by which any estate or interest in 
 real estate is created, aliened, mortgaged or assigned, or by which the 
 title to any real estate may be affected in law or equity, except wills 
 and leases for a term not exceeding three years."^*^ Considering these 
 statutes, there is no ambiguity. The words and the intent of the legis- 
 lature are clear to the effect that no covenant shall be implied in any 
 conveyance of real estate, and that a lease for more than three years is 
 
 ^*^Rev. St., p. 3052. hereditaments, and as embracing 
 
 '"Burr V. Stenton, 43 N. Y. 462; all chattels real, except leases for 
 
 Tone V. Brace, 11 Paige (N. Y.) a term not exceeding three years,' 
 
 566; Vernam v. Smith, 15 N. Y. 327. and such would be the legal import 
 
 A contrary doctrine was followed of the terms, I apprehend, without 
 
 in the earlier case of Kinney v. any legislative declaration on the 
 
 Watts, 14 Wend. (N. Y.) 38. It subject. . . . The lease ... is 
 
 was there said "That a lease like a conveyance of real estate." 
 
 this for ten years is a conveyance ^" Mayor &c. v. Mabie, 13 N. Y. 
 
 of real estate is shown conclusively 151; 1. Co. Litt., by Thomas, 219; 
 
 by the definition of those terms in Boreel v. Lawton, 90 N. Y. 293. In 
 
 a subsequent part of the revised Coffin v. City of Brooklyn, 116 N. Y. 
 
 statutes. In 1 R. S. 762, § 36, it is 159, 22 N. E. 227, however, it was 
 
 declared 'That the term "real es- said that no covenant would be im- 
 
 tate" as used in this chapter shall plied if a lease was for 100 years, 
 
 be construed as co-extensive in =" Stat. 1898, § 2204. 
 
 meaning with lands, tenements, and =**Stat. 1898, § 2242.
 
 §§ 352, 352a] covexaxts ix leases. 376 
 
 such a conveyance. The court held, therefore, that in a lease for more 
 than three years there was no implied covenant to defend from inter- 
 ruption of the use by the acts of the lessor upon adjoining premises.^^** 
 
 § 352. The legal implication of the covenant for quiet enjoyment 
 is that the landlord has an adequate title to the estate created by the 
 lease, and that he will permit the tenant to enjoy, without disturb- 
 ance or interruption, the interest, title or privilege demised, subject 
 to all such rights as are expressly or by natural implication reserved 
 to the lessor.^^^ Such a covenant in a lease for years, being one in 
 fiituro, runs with the land, and will pass with it to any person who, as 
 assignee in law, becomes legally possessed of the term.^^^ On the other 
 hand, the burden of the covenant passes to the transferee of the rever- 
 sion, and, therefore, an assignee of a term is liable to a tenant, who 
 sublet from the original lessee, on a covenant for quiet enjoyment 
 after the sub-tenant has attorned to the assignee.^^^ 
 
 Although the words "grant and demise" will in a lease create an 
 implied covenant against the lessor, yet it is nowhere considered that 
 the same words will create an implied covenant against the assignor of 
 a lease. And so the assignor is not liable to the assignee for the breach 
 of the covenants by the original lessor.^^* This view of the question 
 ■ was taken by the Massachusetts court, which says that it "can find no 
 case of an action by an assignee against an assignor upon a covenant 
 in law for an eviction in consequence of an act done by the original 
 lessor."255 
 
 § 352a. On the lease of the surplus water in a canal, the covenant 
 for quiet enjoyment which the law annexed to the lease was that so long 
 as the canal was used for purposes of navigation and while there was a 
 surplus of water, the lessors agreed that they would do no acts to inter- 
 rupt or deprive the lessee of its enjoyment. On the abandonment of 
 the canal for navigation, the lessors were under no obligation to con- 
 tinue to keep it in repair. ^^*^ 
 
 ='" Koeber v. Somers, 108 Wis. 497, ^= Shelton v. Codman, 3 Cush. 
 
 84 N. W. 991. A contrary dictum (Mass.) 318, § 330. 
 in the case of Shaft v. Carey, 107 ==^ Coulter v. Norton, 100 Mich. 
 
 Wis. 273, 83 N. W. 288, was ex- 389, 59 N. W. 163. 
 pressly withdrawn. ^* Blair v. Rankin, 11 Mo. 440. 
 
 -"Hoagland v. New York &c. R. ='= Waldo v. Hall, 14 Mass. 486. 
 Co., Ill Ind. 443, 12 N. E. 83. ="' Hoagland v. New York &c. R. 
 
 Co., Ill Ind. 443, 12 N. E. 83.
 
 377 I'OR QUIET EXJOTMEXT. [§ 353 
 
 § 353. It is sufficient in many cases that a lease contains an im- 
 plied covenant which is a good warranty by the landlord against his 
 own acts; and it is then unnecessary to consider whether a covenant 
 could be implied amounting to a warranty against incumbrances or a 
 paramount title, or against any rightful claims of third persons. 
 Every grant carries with it an implied undertaking, on the part of the 
 grantor, that so far as he is concerned he will do not act to interrupt 
 the free and peaceful enjoyment of the thing granted.-^'' Thus, every 
 lease carries with it the implication that the lessor shall not proceed 
 to impair the character and value of the leased premises. Conse- 
 quently, where rooms in a building were leased, the lessor could not 
 make alterations which would affect the value of the rooms by shutting 
 them off from the street. By the alterations the subject of the lease 
 was so materially changed that the rooms no longer answered to the 
 description of them in the lease, regard being paid to the conditions 
 and situation of the premises. Alterations of such character would be 
 inconsistent with the rights of a lessee under a lease, and constitute a 
 breach of the implied covenants in the lease.^^^ An implied covenant 
 of this nature only applies to conditions in existence at the time of 
 the leasing ; as a general rule it does not extend to things not in esse 
 at the time of the demise.^^^ However, it would apply where the leased 
 building was adapted to the needs of the tenant at the time of hiring, 
 and the landlord knew it was hired for a particular business. If in- 
 juries, caused by the acts of the landlord, rendered the building useless 
 for this purpose, the tenant would be deprived of the beneficial use of 
 the building, and there would be a breach of the landlord's implied 
 undertaking.^^" Furthermore, the landlord cannot interrupt the ten- 
 ant's enjoyment either directly or indirectly, as by using an adjoining 
 field for such purpose as to defeat the object for which the premises 
 were leased.^^^ Entering upon demised premises and digging up the 
 soil under a building so as to render it permanently unsafe and unfit 
 for occupancy, in consequence of which the tenants were unable to 
 occupy it and abandoned it, constitutes an eviction.^*^^ 
 
 =" Dexter v. Manley, 4 Cush. 432, 79 N. W. 636; Young v. Col- 
 
 (Mass.) 14. lett, 63 Mich. 331, 29 N. W. 850; 
 
 ==' Brande v. Grace, 154 Mass. 210, Pridgeon v. Boat Club, 66 Mich. 326, 
 
 31 N. E. 633; Salisbury v. Andrews, 33 N. W. 502. 
 
 128 Mass. 336. "'" Henly v. Neal, 2 Humph. 
 
 ^^ Shaft v. Carey, 107 Wis. 273, (Tenn.) 551. 
 
 277, 83 N. W. 288, per Bardeen, J. ''■ Shally v. Shute, 132 Mass. 367. 
 
 '^° Adams v, Werner, 120 Mich.
 
 §■ 354] COVENANTS IN LEASES. 378 
 
 § 354. The rule as to the breach of a covenant for quiet enjoy- 
 ment is that there can be no breach without an eviction actual or 
 constructive. What acts will constitute an eviction, it is often diffi- 
 cult to determine, but it is settled, however, that there need not be ac- 
 tual dispossession of the tenant from the leased premises.^®^ The land- 
 lord's acts, though not amounting to a physical expulsion, may, never- 
 theless, be of so pronounced and offensive a character as to create a 
 nuisance, which would directly affect the consideration of the contract 
 between them.^^* On the other hand, a mere trespass by the landlord, 
 without any intention of depriving the tenant of the enjoyment of the 
 premises, will not constitute an eviction.-®^ In 1855 Chief Justice 
 Jervis, speaking for the Court of Common Pleas, said: "It is ex- 
 tremely difficult at the present day to define with technical accuracy 
 what is an eviction. Latterly the word has been used to denote that 
 which formerly it was not intended to Bxpress. In the language of 
 pleading, the party was said to be expelled, amoved and put out. The 
 word 'eviction' came from 'evincere,' to evict, to dispossess by a judi- 
 cial course, and was formerly used to denote an expulsion by the asser- 
 tion of a title paramount and by process of law. But this sort of evic- 
 tion is not necessary to constitute a suspension of the rent ; because it 
 is now well settled that if the tenant loses the benefit of the enjoy- 
 ment of any part of the demised premises by the act of the landlord, 
 the rent is thereby suspended. The term 'eviction' is now popularly 
 applied to every class of expulsion or amotion. Getting rid, thus, of 
 the old notion of eviction, I think it may now be taken to mean this : 
 not mere trespass and nothing more, but something of a grave and 
 permanent character done by the landlord with the intention of de- 
 priving the tenant of the enjoyment of the demised premises."-*'*' 
 
 2«'McAlester v. Landers, 70 Cal. Tiley v. Moyers, 43 Pa. St. 404; Hay- 
 79, 11 Pac. 505; Royce v. Guggen- ward v. Ramge, 33 Neb. 836, 51 N. 
 heim, 106 Mass. 201; Hayes v. Fer- W. 229; Elliott v. Aiken, 45 N. H. 
 guson, 15 Lea (Tenn.) 1; Whit- 30; Hunt v. Cope, Cowp. 242; War- 
 beck V. Cook, 15 Johns. (N. Y.) 483; ren v. Wagner, 75 Ala. 188; Lynch 
 Levitzky v. Canning, 33 Cal. 299; v. Baldwin, 69 111. 210; Lounsbery 
 St. John V. Palmer, 5 Hill (N. Y.) v. Snyder, 31 N. Y. 514; Mayor &c. 
 599; Smith v. Raleigh, 3 Camp. 513; v. Mabie, 13 N. Y. 151; Meeker v. 
 Upton V. Townend, 17 C. B. 30, 84 Spalsbury, 66 N. J. L. 60, 118 Atl. 
 E. C. L. 30. 1026. 
 
 ""' Sully V. Schmitt, 147 N. Y. 248, ="" Upton v. Townend, 17 C. B. 30, 
 
 41 N. E. 514; Edgerton v. Page, 20 84 E. C. L. 30, quoted with approval 
 
 N. Y. 281; Boreel v. Lawton, 90 in Tunis v. Grandy, 22 Grat. (Va.) 
 
 N. Y. 293; Dyett v. Pendleton, 8 109, 130, and in Hayner v. Smith, 
 
 Cow. (N. Y.) 727. 63 111. 430. 
 
 **McFadin v. Rippey, 8 Mo. 738;
 
 379 FOR QUIET ENJOYMEXT. [§ 355 
 
 Acts of a grave and permanent character, which amount to a clear 
 indication of intention on the lessor's part to deprive the tenant of the 
 enjoyment of the demised premises, will constitute an eviction.^*''^ 
 There must be an actual expulsion of the tenant, or an intentional 
 disturbance by the landlord, which so seriously disturbs the tenant's 
 possession as to compel an abandonment of the demised premises, or 
 which deprives the tenant of the beneficial enjoyment of them,^®^ 
 
 If wrongful acts of a lessor upon the demised premises are such as 
 to permanently deprive the lessee of the beneficial enjoyment of them, 
 and the lessee, in consequence thereof, abandons the premises, it is an 
 eviction; and the intent to evict is conclusively presumed.' ^^ 
 
 § 355. The question of eviction or no eviction depends upon the 
 circumstances, and is in all cases to be decided by the jury.-^'' The 
 
 erection of a fence barring a tenant's access to premises does not, as 
 a matter of law, amount to an eviction if the tenant continues to use 
 and occupy them.^'^^ And so fencing off a portion of the demised 
 premises for a short time by mistake does not relieve the lessee from 
 liability for rent.-^^ 
 
 Where a room and power were let together in one contract, the room 
 might be so situated with reference to the source of the power and so 
 connected with it, that a right to have the power could be treated as 
 a part of the premises let. To cut off the power would be a breach of 
 the lessor's implied contract for quiet enjoyment, and an eviction 
 from an important part of the premises let, which would entitle the 
 lessee to recover such damages as they had suffered. ^^^ A building 
 was let to be used as a distillery and the United States revenue law 
 required the written consent of the owner of the premises before the}' 
 could be used for such purpose. The parties did not intend that the 
 lessee should make use of the distillery in violation of law. There- 
 
 =" Meeker v. Spalsbury, 66 N. J. L. Lynch v. Baldwin, 69 111. 210; Pat- 
 
 60, 48 Atl. 1026; Keating v. Spring- terson v. Graham, 140 111. 531, 30 
 
 er, 146 111. 481, 34 N. E. 805; Bar- N. E. 460; Upton v. Townend, 17 
 
 rett v. Boddie, 158 111. 479, 42 N. E. C. B. 30, 84 E. C. L. 30; Collins v. 
 
 143; Kistler v. Wilson, 77 111. App. Karatopsky, 36 Ark. 316; Young v. 
 
 149; Anderson v. Winton, 136 Ala. Burhaus, 80 Wis. 438, 50 N. W. 343; 
 
 422, 34 So. 962. Sully v. Schmitt, 147 N. Y. 248, 41 
 
 =^ Hyman v. Jockey Club W. L. N. E. 514. 
 
 & C. Co., 9 Colo. App. 299, 48 Pac. =" Boston &c. R. Corp. v. Ripley, 
 
 671. 13 Allen (Mass.) 421. 
 
 ^«°Skally V. Shute, 132 Mass. 367; "-" Mirick v. Hoppin, 118 Mass. 582. 
 
 Sherman v. Williams, 113 Mass. 481. ™ Brown v. Holyoke &c. Co., 152 
 
 ^'^Hayner v. Smith, 63 111. 430; Mass. 463, 25 N. E. 966.
 
 § 356] COVEXAXTS IN LEASES. 380 
 
 fore the obligation of the lessors to give their consent as demanded by 
 law could be implied as a necessary incident to the lease, as fully as 
 if there had been a positive stipulation to that effect. They were 
 as much bound to give their written consent, as to allow the tenant to 
 take possession of the distillery and premises which was an implied 
 covenant affecting the lease.^''* 
 
 Any default as well as any overt act of the lessor that renders 
 the tenement dangerous to the life or health of the tenant may be 
 treated by the lessee as an eviction. Thus, evidence of the lessor's 
 neglect to drain the cellar was admissible.^^^ Where there is a failure 
 in an admitted undertaking by a landlord in regard to the condition 
 of leased premises, the failure to put them in proper shape within a 
 reasonable time after receiving notice of the defect will justify the 
 tenant in leaving the premises and refusing to pay any more rent.^^^ 
 Wliether the consequences flowing from the breach of the lessor's 
 covenant to repair are serious enough to justify the lessee in aban- 
 doning the premises on the ground that there has been a constructive 
 eviction is also for the jury to determine.^^' The tenant is not dis- 
 charged from liability for rent because of non-repair amounting to a 
 constructive eviction, when he elects to continue in possession.^ ^® And 
 a breach of a covenant to perform special services, such as furnishing 
 heat and light for the tenant, would not amount to an eviction.^^^ 
 
 § 356. An eviction may be actual, as where there is a physical 
 expulsion, or it may be constructive, as where, though amounting to 
 an eviction at law, the tenant is not deprived of actual occupancy. 
 Where a house, in which there were leased rooms, was moved to ad- 
 joining land, it was held that the eviction caused thereby was not 
 actual but constructive. The tenant had no interest in the land; he 
 had a mere easement for support, and interference with an easement 
 is not an actual physical eviction.^^^ A tenant cannot retain the pos- 
 session of the leased premises and refuse the payment of rent on the 
 ground of a mere constructive eviction. Such an eviction may justify 
 an abandonment of the premises, but, unless there is an actual aban- 
 
 "* Grabenhorst v. Nicodemus, 42 =" Talbott v. English, 156 Ind. 299, 
 
 Md. 236. 59 N. E. 857; Keating v. Springer, 
 
 *" Alger V. Kennedy, 49 Vt. 109. 146 111. 481, 34 N. E. 805. 
 
 "« Young V. Collett, 63 Mich. 331, ""Bean v. Fitzpatrick, 67 N. H. 
 
 29 N. W. 850. 225, 38 Atl. 722. 
 
 =" Young V. Burhaus, 80 Wis. 438, =^»Lieferman v. Osten, 167 111. 93, 
 
 50 N. W. 343; Barrett v. Boddie, 158 47 N. E. 203, affirming 64 111. App. 
 
 111. 479, 42 N. E. 143. 578.
 
 381 FOR QUIET EXJOYMEXT. [§ 356 
 
 donment, it will not defeat an action for rent.^^^ If the tenant fails 
 to act within a reasonable time he waives his right to abandon,^^- 
 There can be no defense as for a constructive eviction, except there is 
 an actual abandonment of the building or a portion of it by the ten- 
 ant on that account. The acts of the landlord must be such as to 
 warrant an abandonment, and there must be, in fact, an abandonment 
 of the premises, or of the portion complained of.^^^ But the mere 
 retention of keys by a tenant who claims to have been evicted does not 
 amount to a constructive possession by him.^®* By paying rent subse- 
 quently to the time an annoyance on the leased premises amounting 
 to a constructive eviction exists, a tenant waives his right to abandon 
 premises for that cause.^®^ In fact, a constructive eviction may be 
 waived by the tenant's mere continuance in possession, and liability 
 for rent under the lease continues as long as the tenant remains in 
 possession.^^^ 
 
 "WHiere one room in an apartment house was rented and was in the 
 exclusive possession of the tenant, it was held to constitute an evic- 
 tion to have a strong odor of coal gas come from an upper tenement, 
 and smoke from a lower one and to have explosions in a water tank on 
 the roof which cracked the walls so that the building was declared un-i 
 safe by the city inspectors ; the landlord was under no covenant to re> 
 pair and it is to be observed that tenant continued to occupy the' 
 building. Still the majority of the court thought there was an evic' 
 tion, suspending the lessee's liability for rent. They reason that "i:^ 
 the explosions proceeded from the water tank and . . . produced 
 the result stated, it was clearly a nuisance, and it was the lessor's nuty 
 to abate it and remove the cause of the trouble. The tank was a part 
 of the building, designed and intended in its use for the accommoda- 
 tion of the tenants. If the noises and explosions proceeded from it, 
 the nuisance was of plaintiff's own creation."-*^ 
 
 *" Patterson v, Graham, 140 111. Keating v. Springer, 14o ill. 481, 
 
 531, 30 N. E. 460; Humphreville v. 34 N. E. 805; Barrett v. Boddie, 158 
 
 Billinger, 62 111. App. 125; Talbott 111. 479, 42 N. E. 143. 
 
 V. English, 156 Ind. 299, 59 N. E. ^* Harmony Co. v. Ranch, 64 111. 
 
 857; Leiferman v. Osten, 167 111. 93, App. 386. 
 
 47 N. E. 203, affirming 64 111. App. =^ Orcutt v. Isham, 70 111. App. 
 
 578. 102. 
 
 ^^Crommelin v. Thiess, 31 Ala. ^"Barrett v. Bodaie, 158 111. 479, 
 
 412; Beecher v. Duffield, 97 Mich. 42 N. E. 143; Klstler v. Wilson, 77 
 
 423, 56 N. W. 777. 111. App. 149. 
 
 ^''Witte V. Quinn, 38 Mo. App. ="' Tallman v. Murphy, 120 N. Y. 
 
 681; Kistler v. Wilson, 77 111. App. 345, 24 N. E. 716. Strong dissent- 
 
 149; Edgerton v. Page, 20 N. Y. 281; ing opinion by Vann J. A weak
 
 § 357] COVENANTS IN LEASES. 382 
 
 The inability of a lessee to obtain a renewal of bis liquor license on 
 the leased premises is not an eviction. To constitute an eviction which 
 will operate either to annul a lease or to suspend the rent some act 
 must have been done by the landlord or by his procurement with the 
 intention and efEect of depriving the lessee of the use and enjoyment 
 of the demised premises in whole or in part.^^^ So it has been held 
 that even though the lessor influence the public authorities to take 
 away the tenant's liquor license, such action does not constitute an 
 eviction by the lessor.-®^ Consequently a vote for no license, even if 
 it had a direct bearing on the passage of a no license law, would not 
 amount to an eviction justifying an abandonment of a leased hotel 
 by the lessee.^^" 
 
 § 357. Physical expulsion. — Where, by the procurement of the 
 lessor, the lessee was excluded from access to the leased room with 
 the effect of depriving him of the use of it and the lessee yielded to 
 such exclusion and abandoned the occupation of such room, such ex- 
 clusion in law would amount to an eviction.^^^ Excavations upon a 
 lot owned by the landlord adjoining the leased premises for the pur- 
 pose of laying a new party wall may amount to a breach of a cove- 
 nant for quiet enjoyment.^®^ But it was held that the owner of two 
 adjoining houses who had let one and tore down the other was not re- 
 sponsible to the tenant for exposing his premises by tearing away the 
 entire wall when such acts were not done negligently.^^^ 
 
 A covenant for quiet enjoyment is broken by tearing down a de- 
 mised building, which has been condemned by the authorities, rather 
 than remedying the defect by making repairs. The covenant bound 
 the lessors not to do any unnecessary thing to disturb the possession 
 of the lessee. If it was necessary to take down the building for rea- 
 sons of safety then it might be taken down. But if the building 
 could be made safe and secure without taking it down, the lessors 
 would violate the lessee's rights by taking it down. The right of 
 
 point in majority opinion was that "" Grove v. Youell, 110 Mich. 285, 
 
 landlord was not connected with the 68 N. W. 132; Pendill v. Eells, 67 
 
 disturbing circumstances. Mich. 657, 35 N. W. 754; Levitzky 
 
 =^ Miller v. Maguire, 18 R. I. 770, v. Canning, 33 Cal. 299; Briggs v. 
 
 30 Atl. 966. Thompson, 9 Pa. St. 338. 
 
 ^^ International Trust Co. v. ^= Collins v. Lewis, 53 Minn. 78, 
 
 Schumann, 158 Mass. 282, 33 N. E. 54 N. W. 1056. See Trust Co. v. 
 
 509. Palmer, 171 111. 383, 49 N. E. 553. 
 
 ^^Barghman v. Portman, 12 Ky. =«' Rotter v. Goerlitz, 16 Daly (N. 
 
 L. R. 342. Y.) 484. 
 
 J
 
 383 FOR QUIET EXJOYMENT. [§ 358 
 
 election as to the mode of obeying the requirement of the statute, was 
 limited by the covenant in the lease.^^* 
 
 Taking possession of furniture in a leased hotel by the landlord 
 under a chattel mortgage to secure rent is not an eviction. Such inter- 
 ference by him does not clearly indicate an intention on his part that 
 the tenant shall no longer continue to hold the premises. ^^^ Under an 
 attachment for rent wrongfully obtained, a lessor sold all of his ten- 
 ant's personal property in a rented hotel so that he was disabled from 
 continuing in business. Nevertheless, the tenant could not elect to 
 treat this as an eviction, because to constitute an eviction, the acts of 
 the landlord must relate to the premises themselves, making them 
 unfit for occupancy. A personal assault on a tenant rendering him un- 
 able to continue business would not be an eviction.^®® 
 
 § 358. Entry by landlord under claim of privilege. — A landlord 
 may by contract lawfully restrict his tenants' use of the property and 
 if a trespass is committed in preventing their use for a purpose pro- 
 hibited by the lease, such trespass does not constitute an eviction.^^^ 
 Interruption by a landlord of his tenants' occupation, without evict- 
 ing him does not suspend the rent, either in whole or in part.^''^ But 
 it has been held that a landlord would be liable to his tenant for an 
 interruption of his possession, even though the landlord entered to 
 repair an unsafe wall.^^^ When the parties to a lease contemplate 
 changes in the leased premises and bind the lessor to make them on a 
 certain contingency, no covenant will be implied against an interrup- 
 tion of the lessees' enjoyment caused by the making of the proposed 
 alterations. As long as the lessor is not at fault in performing his 
 undertaking, he will not be liable because the interruption of the les- 
 see's enjoyment continues for a longer period than was anticipated. ^^"^ 
 When the consent to occupy a space adjacent to leased premises is a 
 mere license to do so, an express covenant for quiet and peaceable 
 possession cannot be regarded as having application to that clause. 
 In determining what was a mere license, the power and authority of 
 the lessor is entitled to weight; as where sidewalk space could not be 
 
 =** Kansas Inv. Co. v. Carter, 160 *« Fuller v. Ruby, 10 Gray 
 
 Mass. 421, 36 N. E. 63. (Mass.) 285. 
 
 "= Morris v. Tillson, 81 111. 607. =^° Goebel v. Hough, 26 Minn. 252, 
 
 "« Marchand v. York, 10 Ky. L. R. 2 N. W. 847. 
 
 812. =°° McCormick v. Milburn & Stod- 
 
 '^ Hayward v. Ramge, 33 Neb. 836, dard Co., 57 Minn. 6, 58 N. W. 600. 
 51 N. W. 229.
 
 § 359] COVENANTS IN LEASES. 38-^ 
 
 leased without the consent of city authorities.^"^ Where leased prem- 
 ises were partially destroyed by fire, and the landlord, with the ap- 
 parent consent of the tenant, enters and repairs them, this is not aa 
 eviction even though the tenant is obliged to remove his effects from 
 the house, and the tenant is not justified in abandoning the premises 
 but will still be liable for rent.^"^ 
 
 In a case where a vein of coal was leased, it was held not to be an. 
 eviction for the lessor to mine coal from another part of the vein, as 
 long as he interfered in no way with the operations carried on by the 
 lessee.^"* 
 
 It has been laid down that, as a general rule, the bringing of an 
 action for possession of the demised premises operates as an entry 
 and a final election by the lessor to terminate the tenancy. Although 
 there has been no judgment in the ejectment suit, the lessor cannot 
 afterwards maintain an action for rent due or covenants broken.^*^* 
 But this result does not follow if the ejectment suit was not well 
 founded, and was subsequently dismissed and the lessee has remained 
 in continuous enjoyment of the demised premises.^"^ So it was held 
 that a right of action for breach of a covenant of quiet enjoyment did 
 not accrue at the time a petition was filed but only after an injunction 
 had issued against the continued occupation of the premises by the 
 lessee.^"® A formal entry by a landlord, followed by an action of 
 ejectment which the tenant successfully defends, would not be an evic- 
 tion, provided the tenant remained in occupation till the end of the 
 term.3" 
 
 § 359. Interference with light and air. — Although it is settled 
 that actual physical expulsion is not necessary to constitute an evic- 
 tion, the American doctrine that easements for light and air can only 
 be created by express grant=^°* produces the result that interference 
 with such rights by the landlord is not an eviction.^*^^ The mere fact 
 
 5"^ Brown v. Schiappacasse, 115 '"Madox v. Humphries, 24 Tex. 
 
 Mich. 47, 72 N. W. 1096. 195. 
 
 ^"^ Humiston v. Wheeler, 70 111. "" International Trust Co. v. 
 
 App. 349. Shumann, 158 Mass. 287, 33 N. E. 
 
 ""^Tiley V. Moyers, 43 Pa. St. 404. 509. 
 
 ^»* Jennings v. Bond, 14 Ind. App. =°^ Collier v. Pierce, 7 Gray 
 
 282; Cones v. Carter, 15 M. & W. (Mass.) 18; Rogers v. Sawin, 10 
 
 718. Gray (Mass.) 376. 
 
 ^=Agar V. Winslow, 123 Cal. 587, ^"^ Witte v. Quinn, 38 Mo. App. 
 
 56 Pac. 422; Madgx v. Humphries, 681. 
 24 Tex. 195.
 
 385 FOR QUIET ENJOYMENT. [§ 360 
 
 of the erection of a building by a landlord on his adjoining land, so 
 as to obstruct and darken the tenant's windows, is not an eviction.^^*' 
 Still, if the building was erected upon part of the curtilage included 
 in the lease, closing the windows so as to make a part of it uninhab- 
 itable, the lessee could certainly treat this as an eviction, because it 
 would be the erection of a permanent structure on part of the demised 
 premises, materially changing the character and beneficial enjoyment 
 thereof. In such a case the landlord would be responsible for the effect 
 of his wrongful act, without further proof of unlawful intent.^^^ 
 Furthermore, this would take effect as an actual physical ouster from 
 a portion of the premises, so that the lessee could continue to occupy 
 the balance of the premises and yet claim to be evicted. The only 
 question is whether the yard or place upon which the lessor enters and 
 erects his structure is a part of the demised premises. It is error to 
 exclude evidence throwing light on this question.^^^ ^j^g erection of a 
 party wall by an adjoining owner, by which windows in a leased build- 
 ing are closed up, is not an eviction by the lessor, nor any defense to 
 the payment of rent under the lease, even though the lessor knew of 
 the intention of the adjoining owner to build at the time of entering 
 into the lease and concealed it from the lessees.^^^ 
 
 The fact that the owner of leased premises consents to the erection 
 of an elevated railroad along the street in front of the same, and that 
 the operation of such railroad seriously discommodes the tenant and 
 interferes with the transaction of his business, does not constitute such 
 an eviction as will justify the tenant in abandoning the premises.^^* 
 
 § 360. Eviction by nuisance on adjoining premises. — From the 
 doctrine that a landlord is not responsible for the acts of strangers, 
 it would follow that an act done by one tenant in a tenement house, 
 without the authority, consent, or connivance of the landlord, cannot 
 be treated as an eviction by other tenants. ^^^ In an early case in 
 
 ^"Palmer v. Wetmore, 2 Sandf. 114. Or the lease may take effect 
 
 (N. Y.) 316; Myers v. Gemmel, 10 as a grant of an easement for light 
 
 Barb. (N. Y.) 537. See also, Eager- and air, which is supplied by the 
 
 ton v. Paige, 1 Hilt. (N. Y.) 320, open space above the yard. Doyle 
 
 20 N. Y. 281, § 381. V. Lord, 64 N. Y. 432. 
 
 '"Boyce v. Guggenheim, 106 =" Hazlett v. Powell, 30 Pa. St. 
 
 Mass. 201. 293. 
 
 =i-Witte V. Quinn, 38 Mo. App. '"Kistler v. Wilson, 77 111. App. 
 
 681. Back yards and passage-ways 149. 
 
 will usually pass as appurtenances '" Conrad Seipp &c. Co. v. Hart, 
 
 to a lease of the principal build- 62 111. App. 212. 
 Ing. Oliver v. Dickinson, 100 Mass. 
 Jones L. & T.— 25
 
 § 360] COVENANTS IN LEASES. 386 
 
 New York, however, the principle was established that when a lessor 
 creates a nuisance in the vicinity of the demised premises, or was 
 guilty of acts which precluded the tenant from the beneficial enjoy- 
 ment of the premises, in consequence of which the lessee abandoned 
 the premises, such act is deemed a virtual expulsion of the tenant 
 and equally with an actual expulsion bars the recovery of rent. The 
 reason of the rule is that the tenant has been deprived of the enjoy- 
 ment of the demised premises by the wrongful act of the landlord; 
 and thus the consideration of his agreement to pay the rent has 
 failed.^^® This principle has also received the support and approval 
 of the courts in other jurisdictions.^ ^'^ So it has been held to amount 
 to an eviction for a landlord to let an adjoining tenement to lewd 
 women when he knew, or ought to have known, that it would be used 
 for purposes of prostitution, and to take no steps for the removal of 
 such tenants after being informed that their conduct was so boister- 
 ous and offensive that the peace and quiet of the tenant was destroyed,, 
 and the building made disreputable and infamous. Such facts would 
 justify the tenant in abandoning the premises and relieve him from 
 further liability for rent.^^* However, where a tenant had continued 
 in occupation during the disturbance, he could not set up the annoy- 
 ance of improper neighbors as a defense against his liability to pay 
 rent. If there is no actual ouster and no intention on the part of the 
 lessor of depriving the lessee of the use and occupation of the de- 
 mised premises, the liability to pay rent will continue.^^^ 
 
 "•Dyett V. Pendleton, 8 Cow. (N. of the opinion: "The case of Dyett 
 
 Y.) 727. This case was approved v. Pendleton, 8 Cow. (N. Y.) 727 
 
 and followed in Cohen v. Dupont, . . . was decided upon a very dif- 
 
 1 Sandf. (N. Y.) 260; Edgerton v. ferent state of facts, and contained 
 
 Page, 20 N. Y. 281; Home &c. Ins. many elements, necessary to consti- 
 
 Co. v. Sherman, 46 N. Y. 370; Sully tute an eviction, which are wanting 
 
 V. Schmitt, 147 N. Y. 248, 41 N. E. in the case at bar. The defendant 
 
 514. there, under a lease for years, had 
 
 "' Leadbeater v. Roth, 25 111. 587; been in more than a year when the 
 
 Jackson v. Eddy, 12 Mo. 209; plaintiff, who occupied an adjoin- 
 
 Dougherty v. Seymour, 16 Colo. 289, ing room under the same roof, him- 
 
 26 Pac. 823; Lay v. Bennett, 4 Colo, self created the disturbances and 
 
 App. 252, 35 Pac. 748; Rowbotham nuisances complained of, and the 
 
 V. Pearce, 5 Houst. (Del.) 135. defendant within a month aban- 
 
 ^^ Dyett V. Pendleton, 8 Cow. (N. doned his tenement. The intent to 
 
 Y.) 727; Lay v. Bennett, 4 Colo, evict, and actual abandonment, 
 
 App. 252, 35 Pac. 748. But see might well have been found, but to 
 
 Townsend v. Gilsey, 1 Sweeny (N. hold there was an eviction here, 
 
 Y.) 155. would be to go far beyond that de- 
 
 '** De Witt v. Pierson, 112 Mass. cision." 
 8. Endicott J. said in the course
 
 3S7 rOK QUIET ENJOYMENT. [§' 361 
 
 A tenant whose enjoyment and use of the premises is interfered 
 with by the landlord's operating boilers below, making the floors and 
 walls uncomfortable and unhealthy, may recover damages for breach 
 of covenant of quiet enjoyment. ^^^ But oppressive heat coming from 
 a boiler room would not be a breach of covenant for quiet enjoyment, 
 when the amount of artificial heat had not been increased since the 
 granting of the lease.^^^ 
 
 § 361. Under a covenant for quiet enjoyment, the lessor does not 
 covenant against the acts of wrong-doers; and to constitute a breach 
 of this covenant, the person who does the act must have some lawful 
 interest or right in the realty whereby the tenant is evicted, and not 
 merely a title to some chattel that happens to be upon it. A general 
 covenant in a lease for quiet enjoyment extends only to entries and 
 interruptions by those who have lawful title but not by wrong-doers; 
 for the tenant has his remedy by action for all tortious entries and 
 disturbances.^22 Hence, it may be stated as a general rule that a 
 covenant for quiet enjoyment in a lease, whether express or implied, 
 does not render the lessor liable for the tortious acts of strangers to the 
 title.223 r^^Q ^g|.g Qf strangers, claiming under no title, cannot con- 
 stitute a technical eviction of the tenant.^^* The responsibility of the 
 landlord under such a covenant does not extend to indemnity against 
 injury from the acts of a mere trespasser; but is confined to acts of 
 those claiming under the lessor.^^s Even though the third party be a 
 grantee from the landlord of a part or of the whole of the property, 
 his interference with the tenant is not a violation of the covenant for 
 quiet enjoyment.^2^ But if the landlord authorizes an adjoining 
 owner to do acts on the demised premises, as to excavate for a party 
 wall, the landlord is responsible for such acts which would constitute 
 a breach of his covenant for quiet enjoyment.^^^ It is the right and 
 
 "" Boyer V. Commercial Bldg. Inv. 305; Perry v. Wall, 68 Ga. 70; 
 
 Co., 110 Iowa 491, 81 N. W. 720. Hayes v. Bickerstaff, Vaughan 118, 
 
 '=' Chicago Warehouse Co. v, Illi- 2 Mod. 35. 
 
 nois &c. Co., 35 III. App. 144. ^-* Meeks v. Bowerman, 1 Daly 
 
 '"Kimball v. Grand Lodge &c., (N. Y.) 99. 
 
 131 Mass. 59; Ellis v. Welch, 6 ^^'Baugher v. Wilkins, 16 Md. 35; 
 
 Mass. 246; Sigmund v. Howard Sigmund v. Howard Bank, 29 Md. 
 
 Bank, 29 Md. 324; Baugher v. Wil- 324. 
 
 kins, 16 Md. 35; Dudley v. Folliott, ^^''Gazzolo v. Chambers, 73 111. 75; 
 
 3 Term R. 584. Kelly v. Dutch Church, 2 Hill (N. 
 
 '''Abrams v. Watson, 59 Ala. 524; Y.) 105. 
 
 Chestnut v. Tyson, 105 Ala. 149, 16 =-' Collins v. Lewis, 53 Minn. 78, 
 
 So. 723; Branger v. Manciet, 30 Cal. 54 N. W. 1056. 
 624; Underwood v. Birchard, 47 Vt.
 
 §■ 362] COVENAXTS IN" LEASES. 388 
 
 duty of a lessee who, in contemplation of law, is in possession from 
 the moment the lease takes effect, to eject a trespasser, and not the 
 duty of the lessor, and if the lessee fails to do so, he cannot claim an 
 abatement of rent by reason of an eviction.^^^ However, it is no de- 
 fense to a tenant's claim that his rights under the lease hare been 
 invaded and infringed upon, to say that the invasion and infringe- 
 ment were the acts of another tenant, when they have been performed 
 with the landlord's consent and active concurrence. ^^^ The expres- 
 sion that a tenant can only excuse himself from paying rent when 
 evicted by a paramount title, means that he can only excuse himself 
 when he is kept out of possession by one who has the legal right to 
 do so, and not a mere trespasser against whom he has his remedy.^^'^ 
 
 Covenants for title and for quiet enjoyment merely exact of the 
 lessor that he shall have such a title to the premises at the time as 
 shall enable him to give a free unincumbered right for the term de- 
 mised, and there is no express or implied warranty against the acts 
 of strangers; hence, if the lessee be ousted by one who has no title, 
 the law leaves him to his remedy against the wrong-doer. It will not 
 judge that the lessor covenanted against the wrongful acts of strangers 
 unless the covenant be full and express to the purpose.^^^ 
 
 Before a lessee can recover damages for a disturbance of his pos- 
 session by a third person, he must give personal formal notice to the 
 lessor and call him in warranty. ^^^ 
 
 § 362. A taking of the demised premises by the sovereign under 
 the right of eminent domain is not an eviction. ^^^ The Supreme 
 
 ^-^ McNairy v. Hicks, 3 Baxt. not be recovered back from him. 
 
 (Tenn.) 378. Hoopes v. Meyer, 1 Nev. 433. 
 
 "^City Power Co. v. Fergus Falls '^^ Gardner v. Keteltas, 3 Hill (N. 
 
 &c. Co., 55 Minn. 172, 56 N. W. 685; Y.) 330; Dudley v. Folliott, 3 Term 
 
 Twiss V. Baldwin, 9 Conn. 291; 584; Hayes v. Bickerstaff, Vaughan 
 
 Clement v. Gould, 61 Vt. 573, 18 118. 
 
 Atl. 453. ="Fox v. McKee, 31 La. Ann. 67; 
 
 ^^° Hoopes v. Meyer, 1 Nev. 433. Sheets v. Joyner, 11 Ind. App. 205, 
 
 Paramount title. Where premises 38 N. E. 830. 
 
 owned by two tenants in common ^'' Frost v. Earnest, 4 Whart. 
 were leased by one of them and (Pa.) 86; Ross v. Dysart, 33 Pa. 
 the other got hold of part of the St. 452; Schuylkill &c. R. Co. v. 
 premises and kept the lessee out, Schmoele, 57 Pa. St. 271; Dyer v. 
 this amounted to an eviction and Wightman, 66 Pa. St. 425; Peck v. 
 the tenant would be pro tanto ex- Jones, 70 Pa. St. 83; Ellis v. Welch, 
 cused from paying rent. For if the 6 Mass. 246; Parks v. City of Bos- 
 other tenant in common got posses- ton, 15 Pick. (Mass.) 198; Emmes 
 sion without fraud or force, it could v. Feeley, 132 Mass. 346; Stubbings
 
 389 FOR QUIET ENJOYMENT. [§ 363 
 
 Court of Ohio said in an early case: "Wliilst there are a few cases, 
 chiefly in Missouri and Louisiana, which hold a contrary view, the 
 correct doctrine, both on principle and by the decided weight of au- 
 thority, seems to be that a condemnation of a part of a leasehold es- 
 tate for a public use does not at law amount to an eviction; and 
 whether the fee or a mere easement be taken, the tenant still remains 
 liable under his covenants to pay the rent originally reserved, because 
 nothing short of a surrender, a release or an eviction will discharge 
 him from his covenant in this behalf. ... A condemnation by 
 eminent domain of part of the landlord's reversion is not in law an 
 eviction or partial eviction, for an eviction is the act of the landlord 
 or of a third person holding under a paramount title.''^^* A tenant, 
 as the owner of an estate for years, is guaranteed just compensation 
 before his title can be divested under the power of eminent domain. 
 He takes the term as any other interest in land is taken, subject to the 
 exercise of that power. If he suifer loss, or is deprived of his estate, 
 he is provided with the same remedy that is given to all other own- 
 ers, and holds his title subject to this right the same as his landlord 
 holds his title.^^^ A covenant for quiet enjoyment is designed to in- ■ 
 demnify the lessee for a lawful eviction by reason of defect of title 
 in the lessor and any disturbance thereon. In case of a taking by 
 eminent domain the remedy of the lessee is to look to the legislative 
 provisions made for his indemnity, and not to the covenant for quiet 
 enjoyment, which was introduced into conveyances for purposes en- 
 tirely dilierent.^^® Considering the covenant to pay rent as unaf- 
 fected by the proceedings of the state to appropriate the land, it is 
 true in strictness of law that the landlord is only entitled to the pres- 
 ent value of his reversion, subject to the term ; and that, on the same 
 principle, the tenant remaining personally bound, but being deprived 
 of the use of the premises, is entitled not merely to the value of the 
 term, subject to a rent, but to a sum of money which will indemnify 
 him against the loss arising from his covenant to pay in futuroP'^ 
 
 V. Village of Evanston, 136 111. 37, cuted after the statute conferring 
 
 26 N. E. 577, 11 L. R. A. 839; Corri- the power of eminent domain had 
 
 gan v. City of Chicago, 144 111. 537, been passed. Frost v. Earnest, 4 
 
 33 N. E. 746, 21 L. R. A. 212; Folts Whart. (Pa.) 86. 
 
 v. Huntley, 7 Wend. (N. Y.) 210; ^'^i Foote v. City of Cincinnati, 11 
 
 Foote V. City of Cincinnati, 11 Ohio Ohio 408. 
 
 408; Gluck v. Mayor, etc., of Balti- ^^ Corrigan v. City of Chicago, 144 
 
 more, 81 Md. 315, 32 Atl. 515. See 111. 537, 33 N. E. 746. 
 
 § 680. Ouster by power of eminent ^^ Frost v. Earnest, 4 Whart. 
 
 domain is not an eviction of a ten- (Pa.) 86. 
 
 ant even though the lease was exe- ^" Foote v. City of Cincinnati, 11
 
 § 363] COVENANTS IN LEASES. 390 
 
 But in equity this sum of money belongs to the lessor because he 
 would be deprived of all recourse to the land, either by distress or re- 
 entry, and would have to rely on the personal responsibility of the 
 tenant. The consequence of awarding such damages to the landlord 
 is to release the tenant from his obligation to pay rent. All parties 
 at once are compensated for their actual loss. The damages awarded 
 take the place of the land, the relation of landlord and tenant is ex- 
 tinguished and all covenants growing out of that relation are neces- 
 sarily at an end.^^* So it has been held that when the entire premises 
 included in the demise are taken, the obligation of the tenant to pay 
 rent ceases, and he may plead the termination of the estate as his de- 
 fense. ^^'^ The measure of the lessee's damages is the value of the term 
 minus the rental which he has undertaken to pay.^*" 
 
 In Ehode Island it is provided by statute^*^ that, in case only part 
 of any land under lease is taken all contracts respecting the same 
 should, from the time of election, cease and determine and be abso- 
 lutely discharged as to the part taken but should remain valid as to 
 the residue, and the rents should be apportioned for such residue. 
 Under this act it was held that no eviction by a city or attornment 
 to it was necessary to end a lessee's liability for rent which ceased 
 on the vesting of the title in the city. The lessor could not sue in 
 use or occupation, though the lessee continued in occupation of the 
 entire estate.^*^ 
 
 § 363. An outstanding title which is paramount to that of his 
 landlord is no defense by a tenant to an action for rent. There must 
 be ouster or disturbance by means of it amounting to an eviction.^'*^ 
 After tenant has enjoyed his term and received all the benefits he 
 cannot be permitted to set up his landlord's want of title as a defense 
 in an action for rent.^^* To constitute a defense, tenant must show 
 not only a paramount title but also that he was evicted by virtue of 
 j^^345 ThuSj in one case two distinct tracts of land, a large and a 
 
 Ohio 408; Parks v. City of Boston, =>" Pub. Laws R. I., Feb. 22, 1854. 
 
 15 Pick. (Mass.) 198; Folts v. Hunt- =>« McCardell v. Miller, 22 R. I. 96, 
 
 ley, 7 Wend. (N. Y.) 210. 46 Atl. 184. 
 
 ''^Dyer v. Wightman, 66 Pa. St. =" Russell v. Fabyan, 27 N. H. 
 
 425. 529; Crawford v. Jones, 54 Ala, 
 
 ''^Corrigan v. City of Chicago, 429; Hayes v. Ferguson, 15 Lea 
 
 144 111. 537, 33 N. E. 746; O'Brien (Tenn.) 1. 
 
 V. Ball, 119 Mass. 28; Dyer v. *" Hodson v. Sharpe, 10 East 350, 
 
 Wightman, 66 Pa. St. 425. 353. 
 
 ^^ Corrigan v. City of Chicago, ^" Sneed v. Jenkins, 8 Ired. L. 
 
 144 111. 537, 33 N. E. 746. (N. Car.) 27.
 
 391 POR QUIET ENJOYMENT. [§ 363 
 
 small tract, were leased for a series of years at a certain rental. The 
 smaller tract was in litigation, which fact the lessees knew, and dur- 
 ing the term the lessors lost the suit, whereupon the lessees abandoned 
 the land and notified the lessors that they rescinded the contract, con- 
 trary to the wishes of the lessors who stated to the lessees that they 
 should be protected in their possession. The lessees were still liable 
 for rent because the loss of the suit did not constitute an eviction.^*" 
 However, actual force is not essential to a wrongful eviction of a 
 tenant by a landlord. Such eviction may be effected by the serving 
 of a notice to quit at a specified time, the moving of property into 
 the buildings without tenant's consent and the abandonment of the 
 premises in consequence thereof .^^^ Service of summons in .ejectment 
 suit against a tenant by his landlord is a constructive eviction. It is a 
 demand by the landlord for the possession of the premises and the ten- 
 ant has a clear right in response to such demand to yield the possession, 
 and no act of the former landlord could subsequently restore between 
 the parties the relation of landlord and tenant. The landlord could 
 recover no more rent.^^^ Where a landlord of a tenant at will insisted 
 upon his right to have a sub-lessee hold directly from him, this was a 
 breach of the covenant for quiet enjoyment in the lease by the tenant. 
 When the tenant sued for rent, the sub-lessee could recoup in dam- 
 
 So in an action for breach of covenant for quiet enjoyment, it is 
 not necessary for lessee to prove an actual forcible eviction. Proof 
 of demand for possession by persons holding a title paramount to 
 that of the landlord, and surrender of possession in acquiescence to 
 such demand entitles the tenant to a recovery.^^" Lessees have a riglit 
 to yield to a demand for possession by one having a paramount right 
 without losing their remedy against their lessors on the covenant for 
 quiet enjoyment.^^^ If a landlord has no right to lease, tenants need 
 not wait until they are evicted by judgment. They might yield to a 
 paramount title without suit and would be discharged from further 
 obligation to pay the rent reserved in the lease.^^^ Entry by one 
 
 '"Hayes v. Ferguson, 15 Lea 387, 24 So. 73; Kane v. Mink, 64 
 
 (Tenn.) 1. Iowa 84, 19 N. W. 852. 
 
 '" Tarpy v. Blume, 101 Iowa 469, "'^ King v. Bird, 148 Mass. 572, 20 
 
 70 N. W. 620. N. E. 196; Duncklee v. Webber, 151 
 
 ''' Jennings v. Bond, 14 Ind. App. Mass. 408, 24 N. E. 1082. 
 
 282, 42 N. E. 957. "= Mussey v. Holt, 24 N. H. 248; 
 
 '**Holbrook v. Young, 108 Mass. Morse v. Goddard, 13 Mete. (Mass.) 
 
 83. 177. 
 
 ^» Tyson v. Chestnut, 118 Ala.
 
 §■ 364] COVEXANTS IX LEASES. 392 
 
 having a paramount title is equivalent to an eviction by legal process. 
 A tenant is not bound to retain possession until actually expelled by 
 legal process ; but may quietly yield possession, incurring the risk of 
 being able to show that the entry was under a paramount title.^^^ 
 Where a tenant in possession was ordered ofE by a sheriff having a 
 writ of restitution based on the judgment against the landlord and 
 the tenant and his family moved away and commenced to take their 
 goods away and then the parties entitled to possession executed a 
 lease to him, there was such an eviction by -judgment of law that the 
 tenant was excused from paying rent to the first landlord 
 
 354 
 
 § 364. Eviction suspends rent. — After a tenant has been evicted, 
 there can be no recovery of rent during the continuance of the 
 eviction.^^^ The possession and quiet enjoyment of the premises 
 by the lessee, without hindrance on the part of the lessor, is an 
 implied condition to the obligation to pay rent.^^® In every lease 
 of land, the lessor is so far bound by implication, for the title 
 and enjoyment by the lessee, that his right to the rent is dependent 
 thereon, Wliere the tenant is evicted from a part of the land by a 
 stranger on title paramount, it operates as a suspension of the rent 
 pro tanio.^'"'' But an eviction does not forfeit rent already accrued 
 • and overdue at the date of the eviction,^^^ and the only remedy of the 
 lessee in such case is to recoup in damages.^^^ The rule is the same, 
 although the rent is payable in advance and the eviction occurs before 
 the expiration of the period in respect to which the rent claimed ac- 
 crues.3®° But, ordinarily, the evicted tenant is released from all lia- 
 bility to pay rent from the commencement of the quarter in which 
 the eviction occurred.^ ^^ If a lessee, who has covenanted to pay rent 
 in advance, is evicted on a rent day, he is discharged from his obliga- 
 
 '" Marsh v. Butterworth, 4 Mich. ^5? pog^Q^ y jones, 2 Ired. Eq. 
 
 575. (N. Car.) 350. 
 
 ^*Montanye v. Wallahan, 84 111. =^' Livingston v. L'Engle, 27 Fla. 
 
 355. 502, 8 So. 728; La Farge v. Halsey, 
 
 ^'= Leopold v. Judson, 75 111. 536; 1 Bosw. (N. Y.) 171; Hunter v. 
 
 Hunter v. Reiley, 43 N. J. L. 480; Reiley, 43 N. J. L. 480. 
 
 Ogilvie V. Hall, 5 Hill (N. Y.) 52; ^=' La Farge v. Halsey, 1 Bosw. 
 
 Bennet v. Bittle, 4 Rawle (Pa.) (N. Y.) 171. 
 
 339; Morrison v. Chadwick, 7 C. B. ^"^ Giles v. Comstock, 4 N. Y. 270; 
 
 266, 62 E. C. L. 266; Salmon v. Hunter v. Reiley, 43 N. J. L. 480. 
 
 Smith, 1 Saund. 202, 204; Briggs v. ^°^ Chatterton v. Fox, 5 Duer (N. 
 
 Thompson, 9 Pa. St. 338. Y.) 64; Fitchburg &c. Co. v. Melven, 
 
 ==« Field V. Herrick, 10 111. App. 15 Mass. 268. 
 591.
 
 393 FOR QUIET ENJOYMENT. [§ 365 
 
 tion.^®^ For rent which by the terms of the demise would accrue 
 during the continuance of the eviction, the landlord can neither sue 
 nor can he distrain for the rent reserved or any part of it; nor can 
 he recover for use and occupation, although in either case the tenant 
 has continued in possession of the remaining part of the premises 
 demised.^®^ A partial eviction which would suspend the entire rent, 
 does not, however, necessarily terminate the lease or put an end to 
 other obligations under it, such as the tenant's covenant to repair.^''* 
 The same rule would seem to hold good where the tenant continues 
 liable for rent for the part of the premises he continues to occupy, 
 and he would hold such part under the original lease.^®^ 
 
 § 365. If a tenant is evicted from a material part of the premises, 
 he has a legal right to abandon the whole. It is implied that the 
 tenant shall have free use of the whole premises ; if he is ousted from 
 any material part of them he may treat it as an eviction and rescind 
 the lease. ^•'^ 
 
 In England the law has been settled that an eviction of a tenant 
 by the landlord from part of the demised premises suspends the en- 
 tire rent, although the tenant continues in possession of the re- 
 mainder.^*''^ In Massachusetts the question was left open by early 
 
 ^'^ Smith v. Shepard, 15 Pick, it was held by Chief Justice Dallas, 
 
 (Mass.) 147. at nisi prius, that the whole rent 
 
 363 Morris v. Kettle, 57 N. J. L. was not suspended, in such a case, 
 
 218, 30 Atl. 879; Neale v. MacKen- if the tenant continued in posses- 
 
 zie, 1 M. & W. 747; Hunter v. Rei- sion of the residue of the demised 
 
 ley, 43 N. J. L. 480; Morrison v. premises, but that he would be lia- 
 
 Chadwick, 7 C. B. 266, 62 E. C. L. ble on a quantum meruit. Stokes 
 
 266; Salmon v. Smith, 1 Saund. 202. v. Oooper, 3 Campb. 514, n. And this 
 
 ^'^ Smith v. McEnany, 170 Mass. was stated as the law in the treat- 
 
 26, 48 N. E. 781; Leishman V. "White, ises, afterwards published, on the 
 
 1 Allen (Mass.) 489. law of landlord and tenant, by 
 
 ^"^ Skaggs V. Emerson, 50 Cal. 3. Claydon, Comyn, Archbold, Smythe 
 
 366^ygj.y y Dougherty, 102 Ind. and Taylor; in 2 Roscoe on Real 
 
 443, 2 N. E. 123; Miller v. Michel, Actions 410; Crabb on Real Prop- 
 
 13 Ind. App. 190, 41 N. E. 467; Rice erty, § 205, and in numerous other 
 
 V. Dudley, 65 Ala. 68; Hayner v. books. And the king's bench in 
 
 Smith, 63 111. 430; Mayor &c. v. Ireland, in the case of Grand Canal 
 
 Mabie, 13 N. Y. 151; Skally v. Co. v. Fitzsimons, 1 Hud. & Br. 449, 
 
 Shute, 132 Mass. 367; Upton v. distinctly adjudged this point in 
 
 Greenlees, 17 C. B. 51, 84 E. C. L. 51. the same way, on the authority of 
 
 ^"How v. Broom, Gouldsb. 125; Stokes v. Cooper. But Mr. Baron 
 
 Upton V. Townend, 17 C. B. 30, 64, Parke in Reeve v. Bird, 1 C. M. & 
 
 84 E. C. L. 30; Christopher v. Aus- R. 31, 36, and 4 Tyrw. 614, ques- 
 
 tin, 1 Kern. (N. Y.) 216. In 1814 tioned the decision of Chief Justice
 
 § 365] COVENANTS IN LEASES. 394 
 
 cases,'®^ but it is now settled in that state that a tenant evicted by his 
 landlord from part of the demised premises is no longer liable, either 
 for rent or for use and occupation.^*'® In case of a partial eviction the 
 general rule in the United States is that, if the landlord is respon- 
 sible, the entire rent is suspended, while, if the partial eviction is 
 caused by the act of a stranger, the rent is only abated pro tanto.^""^ 
 Ordinarily, an eviction by the landlord will operate to release the 
 tenant from any further liability to pay rent, even for so much of 
 the leasehold as he may continue to occupy.^^^ The ancient rule was 
 that if a tenant was evicted from any part of the demised premises, the 
 entire rent was suspended during such eviction. The reason was that a 
 landlord ought not to be encouraged to injure his tenant whom, by the 
 policy of the feudal law, he ought to protect. The modern reason 
 given is that in such case he cannot apportion his own wrong.^^^ This 
 was law until the statute allowing an action of use and occupation. 
 Since then the impression prevailed for a while that the landlord 
 could bring use and occupation against tenants who had been evicted 
 from part of premises. However this impression has not been sup- 
 ported by the decided cases and the established rule seems to be that 
 a landlord who has ousted his tenant from part of the premises can- 
 not recover on a quantum meruit the value of the part which the ten- 
 ant still continues to occupy.^^^ The partial eviction of a tenant 
 from the demised premises by a third person having a paramount title 
 is only a bar pro tanto to the recovery of the rent reserved, such rent 
 being apportionable.^^* Thus a tenant evicted from a part of the 
 
 Dallas, and the recent case above 1 Allen (Mass.) 489; Lewis v. Payn, 
 
 cited from 17 C. B. shows that it 4 Wend. (N. Y.) 423; Vermilya v. 
 
 is not the law of England. Austin, 2 E. D. Smith (N. Y.) 203; 
 
 2'^ Shumway v, Collins, 6 Gray Morris v. Kettle, 57 N. J. L. 218, 30 
 
 (Mass.) 227; Fuller v. Ruby, 10 Atl. 879; Wreford v. Kenrick, 107 
 
 Gray (Mass.) 285. Mich. 389, 65 N. W. 234; Briggs v. 
 
 ^•""Leishman v. White, 1 Allen Hall, 4 Leigh (Va.) 484; Tunis v. 
 
 (Mass.) 489; Smith v. McEnany, Grandy, 22 Grat. (Va.) 109. 
 
 170 Mass. 26, 48 N. E. 781. But see ^'^ Mack v. Patchin, 42 N. Y. 167, 
 
 Fitchburg &c. Co. v. Melvern, 15 1 Am. R. 506; Bentley v. Sill, 35 
 
 Mass. 258, 271. 111. 414; Smith v. Wise, 58 111. 141; 
 
 ""Collins V. Karatopsky, 36 Ark. Hoagland v. New York &c. R. Co., 
 
 316; Hyman v. Jockey Club &c. Co., Ill Ind. 441, 12 N. E. 83. 
 
 9 Colo. App. 299, 48 Pac. 671; "- Hodgkins v. Robson, Vent. 276. 
 
 Skaggs V. Emerson, 50 Cal. 3; Col- "^Leishman v. White, 1 Allen 
 
 burn V. Morrill, 117 Mass. 262; Fil- (Mass.) 489; Vermilya v. Austin, 
 
 lebrown v. Hoar, 124 Mass. 580; 2 E. D. Smith (N. Y.) 203; Briggs 
 
 Smith V. McEnany, 170 Mass. 26, v. Hall, 4 Leigh (Va.) 484. 
 
 48 N. E. 781; Leishman v. White, ='*Willard v. Tillman, 19 Wend.
 
 395 FOR QUIET ENJOYMENT. [§ 366 
 
 leased premises during his term, under a mortgage of which he had 
 notice when taking the lease, is liable for a due proportion of the rent 
 for the part of the premises which he continues to occupy. A rever- 
 sion is a thing in its nature severable, and the rent as incident to it 
 may be divided and ought to be paid to those who have the land. A 
 reversioner may sell his estate in different parts to as many different 
 persons and the tenant will be bound to pay to each his due propor- 
 tion of rent.^^° But a wrongful eviction by the landlord from a part 
 of the demised premises suspends the rent until the possession is re- 
 stored and the landlord cannot recover a portion of the rent agreed 
 upon or any compensation for the part of the premises occupied by 
 the tenant while the eviction continued.^ ^"^ However in Alabama the 
 rule is different. In that state, when the landlord enters and dis- 
 possesses the tenant of a part of the premises, a discharge of the en- 
 tire rent will not result, unless it be shown that the tenant surren- 
 dered or abandoned possession entirely. Nothing less than an entire 
 abandonment or surrender will operate a dissolution of the tenancy, 
 and a suspension or discharge of the entire rent. The rent is dis- 
 charged only 'pro tanto, to the extent of the value of the use and oc- 
 cupation of that part of the premises of which the tenant is dispos- 
 sessed, if he remains in undisturbed possession of the rest.^^'^ 
 
 § 366. If the lessor g^ve to his lessee a complete and perfect right 
 of possession to the demised premises, he has done all that he is re- 
 quired to do by the terms of an ordinary lease and the tenant assumes 
 the burden of enforcing such right to possession as against all wrong- 
 ful possessors, even against a former tenant who holds over,^^^ Upon 
 the well-settled construction of the covenants of title and quiet en- 
 joyment, it is not the duty of the landlord, when the demised prem- 
 ises are wrongfully held by a third person,, to take the necessary steps 
 to put the lessee in possession. The latter, being clothed with the 
 title by virtue of the lease, ought to pursue such legal remedies as 
 
 (N. Y.) 358; Fillebrown v. Hoar, lins, 6 Gray (Mass.) 227, 232; 
 
 124 Mass. 580; Pitchburg &c. Co. Smith v. Raleigh, 3 Campb. 513. 
 
 V. Melven, 15 Mass. 268. «'' Warren v. Wagner, 75 Ala. 188; 
 
 ^'''Cheairs v. Coats, 77 Miss. 846, Crommelin v. Thiess, 31 Ala. 412; 
 
 28 So. 728. Chamberlain v. Godfrey, 50 Ala. 
 
 ""Hayner v. Smith, 63 111. 430, 530; Crossthwaite v. Caldwell, 106 
 
 435; Briggs v. Hall, 4 Leigh (Va.) Ala. 295, 18 So. 47; Anderson v. 
 
 484; Dyett v. Pendleton, 8 Cow. (N. Winton, 136 Ala. 422, 34 So. 962. 
 
 Y.) 727; Leishman v. White, 1 Al- "'Becker v. DeForest, 1 Sweeny 
 
 len (Mass.) 489; Shumway v. Col- (N. Y.) 528; Ratkowski v. Maso- 
 
 lowski, 57 ni. App. 525.
 
 § 367] COVENAXTS IX LEASES. 396 
 
 the law has provided for gaining possession.^" According to this 
 doctrine a lessee who is kept out of possession by the holding over of 
 a former tenant cannot bring an action against his lessor for breach 
 of the covenant of quiet enjoyment.^®" The omission of a landlord 
 to perform his covenant to put the lessee into possession does not 
 amount to an eviction and where tenant enters into possession of part 
 his failure to acquire the whole is no bar to the lessor's claim for 
 rent.^^^ In arguing in support of this doctrine the New York court 
 said: "I admit the covenant of quiet enjoyment means to insure to 
 the lessee a legal right to enter and enjoy the premises and if he is 
 prevented from entering into the possession by a person already in, 
 under a paramount title, the action may be sustained. . . . But 
 if the party holding is a wrong-doer, the remedy of the lessee is as 
 perfect and effectual to dispossess him after, as that of the lessor was 
 before, the execution of the lease. . . . Upon the well-settled con- 
 struction of covenants of title and quiet enjoyment, it is not the duty 
 of the landlord, when the demised premises are wrongfully held by a 
 third person, to take the necessary steps to put his lessee into pos- 
 session."^^ ^ The right to possession at the end of the existing term 
 is in the lessee under the new lease and not in the lessor.^ ®^ 
 
 § 367. In direct opposition to the law as just stated it is estab- 
 lished in England and in several jurisdictions in the United States 
 that the lessor is bound to put the lessee in possession.^^* According 
 to this doctrine there is an implied covenant on the part of the lessor, 
 that, when the time comes for the lessee to take possession under the 
 lease, according to the terms of the contract, the premises shall be 
 open to his entry. In other words, that there shall be no impediment 
 
 *'« Gardner v. Keteltas, 3 Hill (N. ='= Gardner v. Keteltas, 3 Hill (N. 
 
 Y.) 330; Pendergast v. Young, 21 Y.) 330. 
 
 N. H. 234; Sigmund v. Howard ^^ Beidler v. Fish, 14 111. App. 29. 
 
 Bank, 29 Md. 324; Underwood v. 3S4 Qgg ^ Qi^y^ 5 gj^g 44Q. jenks 
 
 Birchard, 47 Vt. 305; Gazzolo v. v. Edwards, 11 Exch. 775; L'Hus- 
 
 Chambers, 73 HI. 75; Cozens v. sier v. Zallee, 24 Mo. 13; Hughes 
 
 Stevenson, 5 S. & R. (Pa.) 421; v. Hood, 50 Mo. 350; King v. Reyn- 
 
 Playter v. Cunningham, 21 Cal. olds, 67 Ala. 229; Spencer v. Bur- 
 
 229. ton, 5 Blackf. (Ind.) 57; Clark v. 
 
 *'° Gazzolo V. Chambers, 73 ni. 75; Butt, 26 Ind. 236; Vincent v. De- 
 
 Pendergast v. Young, 21 N. H. 234. field, 98 Mich. 84, 56 N. W. 1104; 
 
 ='^ O'Brien v. Smith, 13 N. Y. S. Hertzberg v. Beisenbach, 64 Tex. 
 
 408, 37 N. Y. St. 41, affirmed without 262. 
 opinion, 129 N. Y. 620, 29 N. E. 
 1029.
 
 397 FOR QUIET EXJOYMEXT. [§ 367 
 
 to his taking possession.^'^^ This view makes it the duty of the lessor 
 to put the lessee in possession and until he does so he cannot recover 
 rent. Consequently a lessee is under no obligation to bring suit for 
 possession of the leased premises against a third person in posses- 
 sion.^*'' . The foundation of this rule has been summed up in the re- 
 mark that 'lie who lets agrees to give possession, and not merely the 
 chance of a law suit."^®'^ "One who accepts a lease expects to enjoy 
 the property, not a mere chance of a law suit. A lease for a year 
 or a term of years is not a freehold. It is a chattel interest. The 
 prime motive of the contract is that the lessee shall have possession; 
 as much so as if a chattel were the subject of the purchase. Delivery 
 is one of the elements of every executed contract."^** The fact of 
 enjoyment or of the tender of the privilege to enjoy made by the 
 lessor to the lessee ought to be averred in the declaration, because 
 proof of such facts at the trial would be preliminary to the plaintifE's 
 right of recovery.^*^ Failure to put a lessee in possession justifies 
 him in refusing to be bound by the lease, and in rescinding the con- 
 tract.^^'' Where land in the possession of a tenant is leased to an- 
 other, and the lessor covenants to put the second lessee into posses- 
 sion, the lessee acquires the right to maintain an action to recover 
 possession from the former tenant holding over but he is not bound 
 to exercise this right, and if the landlord fails to put him in posses- 
 sion, tenant is not liable for rent. The landlord has committed a 
 breach in limine.^^'^ The new lessee may bring ejectment against the 
 tenant holding over or he may sue the lessor for breach of his cove- 
 nant to deliver possession.^^^ The right of the lessee to bring eject- 
 ment has been recognized in the older cases,^^^ and under a forcible 
 detainer statute, it has been held that a lessee can recover possession 
 of premises from a former lessee of the same landlord who held over 
 wrongfully. The junior lessee's right to the possession and his right 
 to recover rent is as absolute as if he were the sole owner of the fee. 
 Being the sole party entitled to possession or to the rents he must 
 be the real party in interest.^^* In the same jurisdiction it was de- 
 
 ^"King V. Reynolds, 67 Ala. 229. 125, 18 Pac. 138; Spencer v. Bur- 
 
 ="*<= Brandt v. Phillippi, 82 Cal. ton, 5 Blackf. (Ind.) 57. 
 640; 23 Pac. 122. ^^^ Kean v. Kolkschneider, 21 Mo. 
 
 '"Coe V. Clay, 5 Bing. 440. App. 538. 
 
 '*' King V. Reynolds, 67 Ala. 229, ="= Hughes v. Hood, 50 Mo. 350. 
 233, per Stone, J. ^"^ Gazzolo v. Chambers, 73 111. 75; 
 
 ^'Mulford v. Young, 6 Ohio 295. Gardner v. Keteltas, 3 Hill (N. Y.) 
 Contra, Douglass v. Branch Bank, 330. 
 19 Ala. 659. ="' Capital Brewing Co. v. Crosbie, 
 
 ""Dengler v. Michelssen, 76 Cal. 22 Wash. 269, 60 Pac. 652.
 
 § 367a] COVENANTS ix leases. 398 
 
 cided that while the tenant may institute his action to recover posses- 
 sion, the obligation of the landlord is to deliver the possession to him 
 and, therefore, the landlord has sufficient interest in the possession 
 to maintain the action.^®^ It has been determined in unlawful de- 
 tainer by a landlord against a tenant holding over, that an outstand- 
 ing lease by the landlord to a third person under whom the tenant 
 does not claim, is no defense.^** 
 
 § 367a. Where the lessor is in possession of the leased premises 
 and refuses to vacate after the beginning of the lease, the lessee may 
 abandon the premises and escape further liability for rent. The rule 
 of law is clear that a lessee may abandon a contract of lease which the 
 lessor has refused to perform.^^^ In case a lessor, after executing an 
 instrument of demise, died before the beginning of the term, his ad- 
 ministrator would be bound by the lease, and for him to lease to an- 
 other would be a breach of the implied covenant for quiet enjoyment 
 for which an action would lie.^^* This disposes of those cases where 
 some wrongful act of the lessor himself prevents the lessee from en- 
 tering into possession ; for it seems clear that, under such circum- 
 stances, the lessee can sue his lessor for breach of an express or im- 
 plied covenant for quiet enjoyment. Such was the case where a land- 
 owner executed a second lease and put the second lessee in possession 
 to the exclusion of the prior one. The first lessee had his election of 
 remedies either to sue his lessor on the breach of covenant for quiet 
 enjoyment or to bring ejectment against the second lessee.^^^ In the 
 class of cases under consideration, the lessors themselves deny the 
 right and refuse to permit the lessee to occupy, in accordance with 
 their own lease. In such cases it seems very obvious that the lessee 
 should not be driven to his ejectment, but should be allowed to bring 
 his action for the damages sustained.**"* The same result would fol- 
 low when there was a valid outstanding lease and the lessor did not 
 have the power to confer possession according to the terms of his con- 
 tract.^oi 
 
 But the implied covenant does not extend to any period beyond the 
 day when possession is to be delivered. If, after that time, a stranger 
 trespasses on the premises, and, obtaining possession, withholds it from 
 
 ^= Schreiner v. Stanton, 26 Wash. ='^ Clark v. Butt, 26 Ind. 236. 
 563, 67 Pac. 219. ^'^ Berrington v. Casey, 78 111. 317. 
 
 '"•= Vincent v. Defield, 98 Mich. 84, ^^ Trull v. Granger, 8 N. Y. 115. 
 56 N. W. 1104; King v. Reynolds, '"'^ Cohn v. Norton, 57 Conn. 480, 
 
 67 Ala. 229. 18 Atl. 595. 
 
 '"Reed v. Reynolds, 37 Conn. 469.
 
 399 FOE QUIET ENJOYMENT. ' [§ 368 
 
 the lessee, his remedy is against the stranger and not against the land- 
 lord."2 
 
 §368. Tenant's remedy by action.— A breach of a covenant for 
 quiet enjoyment is caused by an eviction which justifies the tenant 
 in abandoning the premises and allows him to escape further liability 
 for rent. But this is not the only effect of the breach of such a cove- 
 nant. If, through an act of the lessor, the tenant is removed before 
 the expiration of the term without fault on his part he is entitled to 
 maintain an action for damages against the lessor.**^^ The law is 
 settled that where a landlord unlawfully evicts a tenant, takes pos- 
 session of the premises and deprives him of the beneficial use and en- 
 joyment, a cause of action arises in favor of the tenant ;*"* or the ten- 
 ant may recoup his damages when sued by the landlord for rent under 
 the contract of lease.*"^ A defense by way of recoupment for breach 
 of a covenant of quiet enjoyment is a privilege not a duty, and the 
 lessee is entitled to resort to a cross action, not being debarred from 
 seeking damages for a breach of that covenant by a failure to plead 
 it in defense of an action for rent.*"*' Furthermore the lessor, after 
 insisting upon the validity of the lease for the purpose of collecting 
 his rent, cannot treat it as invalid for the purpose of avoiding liability 
 on his implied covenant for quiet enjoyment. He cannot treat the 
 lease as valid for one purpose and invalid for another.*"'^ 
 
 In North Carolina it has been held that there is no implied contract 
 that the lessor will not molest the lessee in his possession; but there 
 is an implied condition to that effect, upon a breach of which the 
 lessee is discharged from his obligation to pay rent. If the lessor 
 enters upon the lessee during the term and dispossesses him, the 
 remedy of the latter is an action ex delicto .^'^^ 
 
 For a groundless injunction against a tenant's enjoyment of leased 
 
 *"'Hertzberg v. Beisenbach, 64 (N. Y.) 155; Batterman v. Pierce, 
 
 Tex. 262; King v. Reynolds, 67 Ala. 3 Hill (N. Y.) 171. 
 
 229. ««= Riley v. Hale, 158 Mass. 240, 
 
 *"'Maule V. Ashmead, 20 Pa. St. 33 N. E. 491; Hunt v. Brown, 146 
 
 482. Mass. 253, 255, 15 N. E. 587; Fiske 
 
 ''^Wacholz V. Griesgraber, 70 v. Steele, 152 Mass. 260, 25 R E. 
 
 Minn. 220, 73 N. W. 7; Cannon v. 291. 
 
 Wilbur, 30 Neb. 777, 47 N. W. 85; *»' Riley v. Hale, 158 Mass. 240, 
 
 Mack V. Patchin, 42 N. Y. 167, 1 33 N. E. 491; Bradley v. Brigham, 
 
 Am. R. 506. 149 Mass. 141, 21 N. E. 301; Ormsby 
 
 *°' Mayor &c. v. Mabie, 13 N. Y. v. Dearborn, 116 Mass. 386. 
 
 151; Ives v. Van Epps, 22 Wend. "" Barneycastle v. Walker, 92 N. 
 
 Car. 198.
 
 §■ 369] COVENANTS IN LEASES. 400 
 
 premises, which has been dissolved, the tenant may, in addition to his 
 remedy on the injunction bond, recover damages by an action on the 
 case for the injury done him by being improperly enjoined.***^ 
 
 § 369. Where the lessee has actually been deprived of the posses- 
 sion or use of demised premises, damages resolve themselves into 
 three elements ; first, the loss of the bargain ; second, expense and loss 
 incident to removal; and third, the loss of profits which the lessee 
 could have made if he had been allowed to continue in possession. 
 In regard to the first element of damages, the rule originally laid 
 down was that the lessee who had been evicted could not recover as 
 part of his damages the value of the term.*^'' On analogy to cases 
 where sales of real estate fell through and the vendees could only 
 recover, beyond deposits made and expenses incident to examination 
 of title, nominal damages, the recovery of the lessee was limited in 
 like manner. At an early day certain cases were said to be exceptions 
 to this rule; as if the vendor is guilty of fraud, or can convey but 
 will not, or if he has covenanted to convey when he knew he had no 
 authority to do so, or where it is in his power to remedy a defect in his 
 title and he refuses to do so. In all these cases the vendor or lessor 
 was liable to the vendee or lessee for the loss of the bargain, under 
 rules analogous to those applied in the sale of personal property.*^^ 
 In England the original rule, as applicable to an evicted lessee, has 
 been repudiated in two well-considered cases.*^^ In each of these 
 cases the court held, after elaborate argument, that a lessee, upon a 
 covenant for quiet enjoyment, was entitled to recover the value of the 
 term lost, as well as for mesne profits paid to the owner of the para- 
 mount title. The same principle has been applied by courts in the 
 United States so that the present doctrine as to this element of dam- 
 age is, that the lessee is entitled to recover the value of the leasehold 
 estate minus the rent reserved.*^^ 
 
 *»» Hubble V. Cole, 88 Va. 236, 13 ton v. Fox, 5 Duer (N. Y.) 64; 
 
 S. E. 441. Dean v. Roesler, 1 Hilt. (N. Y.) 
 
 ""Kelly V. Dutch Church, 2 Hill 420; Greene v. Tallman, 20 N. Y. 
 
 (N. Y.) 105; Moak v. Johnson, 1 191; Conger v. Weaver, 20 N. Y. 
 
 Hill (N. Y.) 99; Baldwin v. Munn, 140; Lock v. Furze, L. R. 1 C. P. 
 
 2 Wend. (N. Y.) 399. 441; Engel v. Fitch, L. R, 3 Q. B. 
 
 *"Bush V. Cole, 28 N. Y. 261; 314. 
 Trull V. Granger, 8 N. Y. 115; "-Williams v. Burrell, 1 M. G. & 
 
 Driggs v. Dwight, 17 Wend. (N. S. 402, 50 E. C. L. 401; Lock v. 
 
 Y.) 71; Brinckerhoff v. Phelps, 24 Furze, 19 C. B. (N. S.) 96, 115 E. 
 
 Barb. (N. Y.) 100; Tracy v. Albany C. L. 94. 
 Exchange Co., 7 N. Y. 472; Chatter- "^ Mack v. Patchin, 42 N. Y. 167, 
 
 i
 
 401 i'OR QUIET ENJOYMENT. [§ 369 
 
 "The measure of damages is the difference between the actual rental 
 value and the rent reserved. The rule is the same, whether the leased 
 property is a farm, a dwelling house or hotel, or business premises."*^* 
 ^'Eental value" and "value of use" of premises means substantially 
 the same thing; the term rental value, as used to measure damages, 
 has been deemed to be the equivalent of actual damages in its legal 
 signification. It is the commercial value of the use of a thing and 
 the fact is ascertainable by direct proof of what it would rent for, or 
 by the proof of facts from which a fair rental value may be known. 
 The one is as direct and certain as the other. It may be assumed in 
 judicial proceedings that the results of profits, if they are reasonable, 
 definite and certain, arising from the use of real estate, afford a proper 
 basis for fixing a rental value.'*^^ Wliere a lessee for a crop rent 
 brought an action against his lessor for failure to let him into pos- 
 session, evidence of the average yield, of the cost of production and 
 putting on the market, together with the market value of the crops, 
 was held competent to show the measure of damages.*^® Where rent 
 has been paid in advance"^ or where a lessee has been excluded from 
 possession and has nevertheless been compelled to pay rent during 
 the period of such exclusion, the amount so paid is to be added in 
 computing damages; otherwise the lessee's actual loss, by reason of 
 the breach of the implied covenant, will not be made good.*^^ Thus, 
 where a lessee was to clear land in payment for the use of it, and 
 after clearing the land was evicted, the value of his labor in making 
 
 1 Am. R. 506; Trull v. Granger, 8 damages has been applied where a 
 
 N. Y. 115; Myers v. Burns, 35 N. crop rent was reserved. Jefcoat v. 
 
 Y. 269, 272; Tyson v. Chestnut, 118 Gunter, 73 Miss. 539, 19 So. 94. 
 
 Ala. 387, 24 So. 73; Jefcoat v. Gun- ^" Sedg. Dam. (8th ed.), § 185; 
 
 ter, 73 Miss. 539, 19 So. 94; Cannon Dobbins v. Duquid, 65 111. 464; Tay- 
 
 V. Wilbur, 30 Neb. 777, 47 N. W. lor v. Cooper, 104 Mich. 72, 62 N. 
 
 85; Kenny v. Collier, 79 Ga. 743, 8 W. 157; Shuman v. Smith, 100 Ga. 
 
 S. E. 58; Hodges v. Fries, 34 Fla. 415, 28 S. E. 448; Adair v. Bogle, 
 
 63, 15 So. 682; Adair v. Bogle, 20 20 Iowa 238; Riley v. Hale, 158 
 
 Iowa 238; Leick v. Tritz, 94 Iowa Mass. 240, 33 N. E. 491. 
 
 322, 62 N. W. 855; Taylor v. Cooper, "= Leick v. Tritz, 94 Iowa 322, 62 
 
 104 Mich. 72, 62 N. W. 157; Knowles N. W. 855; Alexander v. Bishop, 59 
 
 V. Steele, 59 Minn. 452, 61 N. W. Iowa 572, 13 N. W. 714. 
 
 557; Jonas v. Noel, 98' Tenn. 440; "» Chew v. Lucas, 15 Ind. App. 
 
 Newbrough v. Walker, 8 Grat. 595, 43 N. E. 235. 
 
 (Va.) 16; Engstrom v. Merriam, 25 "• Cohn v. Norton, 57 Conn. 480, 
 
 Wash. 73, 64 Pac. 914; Serfling v. 18 Atl. 595; Leick v. Tritz, 94 Iowa 
 
 Andrews, 106 Wis. 78, 81 N. W. 322, 62 N. W. 855. 
 
 991. This rule as to the deduction "^ Riley v. Hale, 158 Mass. 240, 
 
 of rent payable from the amount of 33 N. E. 491. 
 
 Jones L. & T.— 26
 
 § 370] COVENANTS IN LEASES. 403 
 
 the clearing was added to the lessee's damages.*^^ Yet it has been 
 held that the use of the term "market value" to characterize the value 
 of the leasehold interest is improper where a leasehold cannot be said 
 to have a market value. In determining the value of the leasehold 
 it has been declared that its worth is not the amount it would bring 
 if offered for sale in open market but the value to the lessee. In 
 other words, it is the sum which he would be obliged to pay for a term 
 of equal duration in premises equally desirable for his business or 
 for the use he intended to make of it.*^" It follows from this rule 
 for estimating them that no damages can be recovered if the rent re- 
 served for the unexpired term will exceed any possible profit which 
 the lessee could hope to make out of the use of the premises.*^ ^ 
 
 Por a breach of the covenant that a lessor had such title as enabled 
 him to give a good lease of the premises, the lessee could only recover 
 nominal damages as long as he remained in uninterrupted posses- 
 sion.^2^ In a case of partial disturbance and interruption, the law 
 fixes no precise rule of damages ; but the lessee's recovery is not lim- 
 ited to the amount of rent reserved, for that may be nominal only 
 and not express the real consideration for the lease.*^^ 
 
 In a Delaware case it has 'been stated that if an unlawful eviction is 
 attended by circumstances of aggravation the jury may award exem- 
 plary damages.*^* 
 
 § 370. In regard to the second element of damage the rule for the 
 measure of damages is that the tenant is entitled to recover for such 
 loss as results directly and necessarily from the breach of the contract 
 
 and is capable of being accurately estimated.*-^ It seems that mesne 
 profits which the lessee had been compelled to pay over to the holder 
 of a paramount title would be included under this head. For refusing 
 to allow the lessee to occupy according to agreement, the lessor ren- 
 ders himself liable in damages, the general rule for the measure of 
 damages in such cases being the difference between the rent reserved 
 
 "" Carter v. Lacy, 3 Ind. App. 540, *"* Bonsall v. McKay.. 1 Houst. 
 
 29 N. E. 168. (Del.) 520. 
 
 *-" Jonas V. Noel, 98 Tenn. 440, 39 *"-^ Cohn v. Norton, 57 Conn. 480, 
 
 S. W. 724. 18 Atl. 595; Hodges v. Fries, 34 
 
 "^O'Connor v. City of Memphis, 7 Fla. 63, 15 So. 682; Adair v. Bogle, 
 
 Lea (Tenn.) 219; Leick v. Tritz, 94 20 Iowa 238; Kelly v. Davis, 9 Ky. 
 
 Iowa 322, 62 N. W. 855. L. R. 647; Poposkey v. Munkwitz, 
 
 «= Harms v. McCormick, 132 111. 68 Wis. 322, 32 N. W. 35; Chatter- 
 
 104, 22 N. E. 511. ton v. Fox, 5 Duer (N. Y.) 64; 
 
 *=^ Dexter v. Manley, 4 Cush. Snow v. Pulitzer, 142 N, Y. 263, 36 
 
 (Mass.) 14. N. E. 1059.
 
 403 FOR QUIET ENJOYMENT. .[§■ 371 
 
 and the value of the premises for the term. If the rent reserved is 
 the full value of the premises, the lessee can recover only nominal 
 damages, even though the refusal of the landlord is without just 
 cause. But if the tenant has sustained in addition a particular loss 
 which is the direct and necessary or natural consequence of the breach 
 of contract by the landlord he may recover therefor.*^® In case the 
 lessor fails to put the lessee into possession according to the terms 
 of the contract, the proper measure of damages seems to be that the 
 lessee is entitled to recover rent paid in advance, the difference be- 
 tween the rent agreed to be paid and the value of the term, and such 
 special damages as would arise naturally and generally from such a 
 breach of contract. If special circumstances under which the con- 
 tract was made were stated at the time and known to both parties, 
 then the amount of damages which would ordinarily follow from a 
 breach of the contract under those special circumstances could be re- 
 covered.*^' An evicted lessee may also recover damages for the inter- 
 ruption of an established business. The measure of such damages is 
 what gain he can show with reasonable certainty that he would have 
 made, that being what he is entitled to recover for. The profits 
 actually realized in the preceding years under the lease may be shown 
 as tending to prove the value of the premises to him.*^^ But profits 
 resulting from a criminal violation of the Sunday laws, can form no 
 legal basis for the estimation of damages for the eviction of a lessee,*-^ 
 and the recovery is limited to such loss as could not reasonably be 
 avoided.*^*' 
 
 Where a covenantee is evicted by a stranger, holding a paramount 
 title, by judgment of law, the measure of damages includes the ex- 
 penses of the covenantee in defending the suit, including fees paid to 
 counsel.*^^ 
 
 § 371. Loss of prospective profits, the third element of damage, 
 seems not to be properly recoverable in the case of eviction. Taking 
 the rule that damages for the breach of a contract are limited to such 
 as may be reasonably considered to have been in contemplation by the 
 parties, at the time of the making of such contract, as the probable re- 
 
 ^^ Adair v. Bogle, 20 Iowa 238. '^' Raynor v. Valentine Blatz &c. 
 
 "' Cohn V. Norton, 57 Conn. 480, Co., 100 Wis. 414, 76 N. W. 343. 
 18 Atl. 595. ^^'o Dobbins v. Diiquid, 65 111. 464. 
 
 ^^ Taylor v. Cooper, 104 Mich. 72, '^' Levitzky v. Canning, 33 Cal. 
 62 N. W. 157. • 299; Swett v. Patrick, 12 Me. 9; 
 
 Pitkin v. Leavitt, 13 Vt. 379.
 
 § 372] COVENANTS IN LEASES. 404 
 
 suit of a breach of it/^^ it follows that expected profits from the use of 
 the demised premises are too remote to be recovered and cannot be 
 used as a basis for estimating damages.*^^ In order that the lessee 
 may recover for loss of prospective profits or for expenditures for 
 attempting to move in, knowledge of the situation must be brought 
 home to the lessor at the time the lease was made. Without such 
 knowledge, it cannot be said that loss of profit could have been within 
 the contemplation of the parties when the lease was entered into.*^* 
 However, it has been held that, where a tenant was evicted by some 
 act that amounted to a trespass on the part of the landlord, prospective 
 profits in the plaintiff's business during the balance of the term could 
 be made an item of recovery .*-^^ This ruling was based on the doc- 
 trine that anticipated profits could be recovered as damages in an 
 action of trespass.*^® 
 
 Where a new lessee seeks to recover possession and damages from a 
 former lessee, who previously had a term in the premises, the amount 
 of his recovery is not limited to the rent reserved in the new lease 
 during the period which the former tenant occupies but he may re- 
 cover the reasonable value of the premises to him during that period.*^^ 
 
 IV. In Regard to Buildings and Improvements. 
 
 § 372. A general covenant by a lessee to build is satisfied by an 
 erection of the building at any time before the end of the term, and 
 
 the lessor before the expiration of the term can have no legitimate 
 cause of complaint.*^^ Where the lessee covenanted to make certain 
 improvements, it was held he had the whole term to make them, if no 
 time was specified, and his declarations of intention were imma- 
 terial.*^^ So an agreement by a lessee to clear land might properly 
 be performed any time during the continuance of the lease and an 
 
 «= Guetzkow Bros. Co. v. Andrews, land &c. R. Co. v. Mitchell, 84 111. 
 
 92 Wis. 214, 66 N. W. 119; Bradley App. 206. 
 
 V. Chicago M. & St. P. R. Co., 94 ^=* Serfling v. Andrews, 106 Wis. 
 
 Wis. 44, 68 N. W. 410. 78, 81 N. W. 991. 
 
 "^ Kenny v. Collier, 79 Ga. 743, 8 ''' Snow v. Pulitzer, 142 N. Y. 263, 
 
 S. E. 58; Smith v. Phillips, 16 Ky. 36 N. E. 1059. 
 
 L. R. 615; Kelly v. Davis, 9 Ky. L. «« Schile v. Brokhahus, 80 N. Y. 
 
 R. 647; Newbrough v. Walker, 8 614. 
 
 Grat. (Va.) 16; Throop v. Broad- •■" Baldwin v. Skeels, 51 Vt. 121. 
 dus, 15 Ky. L. R. 812; Denny v. ^'^ Chipman v. Emeric, 5 Cal. 49. 
 Marksbury, 15 Ky. L. R. 400; Cleve- ^=° Palethorp v. Bergner, 52 Pa. 
 
 St. 149. 
 
 '^i
 
 405 IN REGARD TO BUILDINGS AND IMPROVEMENTS. [§373 
 
 action for a breach of the agreement could not be maintained until 
 its termination without the fulfilment of the undertaking.***' But 
 the case is diiferent where the covenant by the lessee is to build within 
 a certain time. It is not, then, a continuing covenant. There is 
 nothing in fhe nature of a covenant to build by a given time, that in- 
 dicates that a continued failure to perform the covenant will pro- 
 duce a succession of breaches. It more clearly resembles, in this re- 
 spect, the covenant not to assign, or for a reentry in case of the 
 bankruptcy of the lessee, in either of which cases the breach, if it 
 takes place, is once for all. So the receipt of rent accruing after the 
 end of the time given for building would be a waiver of the for- 
 feiture.**^ Furthermore, in case the lessee is under obligation to build 
 and at the same time entitled to a renewal of the term, the fact that 
 he is allowed to hold over on sufferance without building does not 
 waive the lessor's right to recover damages for the breach of the cove- 
 nant to build, and the lessee does not have the right to complete the 
 addition during the time of holding over.**^ Where a tenant cove- 
 nanted to build and leave buildings in repair, and after being built 
 they were destroyed by fire, it was held that equity would compel 
 the lessee either to rebuild or to pay the value of the buildings.**^ 
 
 § 373. In the absence of agreement a landlord is not liable for 
 the value of improvements made by his tenant upon the demised 
 premises.*** And it would necessarily follow that a lessee could not 
 recover from the landlord for repairs or improvements made on the 
 premises against the owner's protest.**^ A covenant to pay for im- 
 provements erected by the lessee is, however, binding on the lessor, 
 and if he is acting in a representative capacity and had no authority 
 to make such a covenant, it would nevertheless be binding on him 
 personally, A guardian's covenant to purchase improvements at an 
 appraised value binds him absolutely, and he cannot refuse to submit 
 to a valuation unless the lessee agrees to have the award subject to 
 
 ""Gates v. Hendrick, 54 Hun (N. 672; Hopkins v. Ratliff. 115 Ind. 
 
 Y.) 92, 7 N. Y. S. 229. 213, 17 N. E. 288; Mull v. Graham, 
 
 *«McGlynn v. Moore, 25 Cal. 384; 7 Ind. App. 561, 35 N. E. 134; Guay 
 
 Stuyvesant v. Mayor &c., 11 Paige v. Kehoe, 70 N. H. 151, 46 Atl. 688; 
 
 (N. Y.) 414. Sigur v. Lloyd, 1 La. Ann. 421; 
 
 "=Pollman v. Morgester, 99 Pa. Kline v. Jacobs, 68 Pa. St. 57; 
 
 St. 611. Smith v. Brown, 5 Rich. Eq. (S. 
 
 "'Pasteur v. Jones, Conf. R. (N. Car.) 291. 
 Car.) 194. "= Jones v. Hoard, 59 Ark. 42, 26 
 
 *** Wilkerson v. Farnham, 82 Mo. S. W. 193, 43 Am. St. 17.
 
 §• 373] COVENANTS IN LEASES. 406 
 
 the approval of the probate court.**® An agreement by a landlord to 
 pay a tenant's predecessor in possession for the building on the land 
 upon termination of the lease may be enforced in a proper proceed- 
 ing, but it does not operate to extend the tenancy of such prede- 
 cessor.**^ 
 
 Under the law of landlord and tenant the doctrine is very clear 
 that there must be some distinct agreement to entitle a tenant to pay 
 for improvements and such an agreement must have the elements of 
 certainty about it. It must be equally certain with any other contract 
 of employment.**^ The tenant is presumed to repair and improve 
 for his own benefit; and his only right to the fruits of his labor, ex- 
 pended for that purpose, is to enjoy the enhanced value of the prem- 
 ises during the term, and within certain limitations to remove the im- 
 provements before its expiration. While a special promise on the 
 part of the landlord to pay for improvements might be implied from 
 his conduct, the mere fact that the landlord permits the tenant to 
 make permanent improvements without protest or warning that he 
 will not pay, raises no presumption of such a special promise to pay 
 for improvements.**^ If the tenant enlarges the building for his own 
 convenience, even though it be by the persuasion of the landlord, he 
 does not, in the absence of agreement or promise, thereby acquire a 
 right to charge the landlord with the expense of the improvements.*^" 
 Provided there is no mistake in regard to the nature of his title, a 
 mere tenant at will or tenant from month to month, making improve- 
 ments without the request of his landlord, has no equity against his 
 landlord for such improvements upon an abrupt termination of his 
 holding.*^^ Although the terms of a lease require the lessee to erect 
 buildings, if there is no agreement for their removal by the lessee, 
 he has no right to remove them.*^^ Under a provision that improve- 
 ments should be made at the expense of the tenant and that the ten- 
 ant should surrender the premises to the lessor at the end of the 
 
 "' Nichols V. Sargent, 125 111. 309, «° Hopkins v. Ratliff, 115 Ind. 213, 
 
 17 N. E. 475. 17 N. E. 288; Estep v. Estep, 23 
 
 "'Almy V. Allen, 22 R. I. 595, 48 Ind. 114; Purcell v. English, 86 Ind. 
 
 Atl. 934. 34, 44 Am. R. 255; Lucas v. Coulter, 
 
 "'Leslie v. Smith, 32 Mich. 64; 104 Ind. 81, 3 N. E. 622. 
 
 "Wilson V. Scruggs, 7 Lea (Tenn.) "'' Pomeroy v. Lambeth, 1 Ired. 
 
 635. Eq. (N. Car.) 65. 
 
 "«Gocio V. Day, 51 Ark. 46, 9 S. «= Peirce v. Grice, 92 Va. 763, 24 
 
 W. 433; Woolley v. Osborne, 39 N. S. E. 392. 
 J. Eq. 54; Dunn v. Bagby, 88 N. 
 Car. 91. 
 
 i
 
 407 IX REGARD TO BUILDINGS AND IMPROVEMEXTS. [§ 374 
 
 term, all improvements which became a part of the realty belong to 
 the landlord.*^^ By a stipulation that a lessee may remove all im- 
 provements he may erect, he contracts as to the mode of compensa- 
 tion for improvements he may make, and it would follow that the 
 lessor in no other mode should be held to make compensation. If the 
 lessee was not prevented from removing his improvements, he could 
 not set off the value of them when sued for rent.*^* A provision in a 
 lease of a water lot that all improvements erected by the lessee should 
 become the property of the lessor at the end of the term, was held 
 to cover a wharf erected by the lessee, extending beyond the limits 
 of the lessor's land upon tide lands not owned by him,*^^ But a stip- 
 ulation to pay for improvements and repairs to wharves made by the 
 lessee, binds the lessor to pay their value as contained in the wharf, 
 and not merely their value as second-hand materials.*^^ 
 
 § 374. Authority to build. — The erection of a building by a lessee 
 not authorized by the lease would be a mere voluntary act which would 
 furnish no consideration for and give no right to a renewal. The 
 authority for the lessee to build is commonly accompanied by an obli- 
 gation on his part to do so. However, the obligation to build could be 
 discharged by a release and yet the right to build during the term be 
 preserved so that the lessee having built became entitled to the exer- 
 cise by the lessor of the option to buy or renew provided by the lease. 
 Striking out of the lease the covenant of the lessee to build, there re- 
 mains the agreement that if the lessee shall build and the building 
 shall be standing on the demised premises at the end of the term, the 
 lessor would either pay the appraised value or renew the lease.*^^ In 
 order to make the lessor liable for the cost of the buildings erected, the 
 lessee must comply with the specifications in the lease as to the char- 
 acter and cost of the contemplated structure. This is the necessary con- 
 struction of such a contract. JSTo sane man would make a contract by 
 which he would incur liabilities unlimited in extent, by the mere acts 
 of agents he could not control. The lessee was bound only to a given 
 extent as to improvements; his will and that of the lessor met as to 
 this term; the obligations were reciprocal, the benefits and burdens 
 
 *='Gett V. McManus, 47 Cal. 56. «" Ladd v. Hawkes, 41 Ore. 247, 
 
 *" Worthington v. Young, 8 Ohio 68 Pac. 422. 
 401. *=' Smith v. Rector &c., 107 N. Y. 
 
 *=^= Brown v. Carkuk, 14 Wash. 443, 610, 14 N. E. 825; Mcintosh v. 
 44 Pac. 887. Rector &c., 120 N. Y. 7, 23 N. E. 
 
 984.
 
 § 375] COVEXAXTS IX LEASES. 408 
 
 equal, and the terms of the whole contract closed, and the rights of the 
 parties liquidated and ascertained. But the contrary construction sup- 
 poses a contract, the terms and results of which are uncertain.*^® Sa 
 where a covenant in a lease bound the lessor to pay for improvements 
 erected by the lessee, the general words of the covenant were limited 
 by a specification as to what improvements the lessee should erect. It 
 was clear that the landlord, although he agreed to pay for all improve- 
 ments placed upon the lot, had reference only to such as he had pre- 
 viously authorized to be made. The tenant had no power to place there 
 what he pleased, and then ask compensation for them. This could 
 never have been the intention of the parties, or they would not have 
 previously specified the buildings the tenant might erect.*^® The erec- 
 tion of a difEerent sort of buildings puts the lessor under no obligation 
 to pay their appraised value at the end of the term.*^** But under an 
 agreement in a lease for the lessor to purchase improvements erected by 
 the lessee under certain conditions, it was held that improvements 
 erected by a sub-tenant must be considered as erected by the tenant 
 himself.*^^ A tenant is entitled to be allowed for improvements which 
 were virtually made by him. Thus where a tenant claiming to be an 
 owner gave a bond for title and the vendee entered and made improve- 
 ments, the tenant was entitled to have those improvements allowed 
 
 him according to his contract as they had been virtually made by 
 him.^s^ 
 
 A lessor cannot countermand an authority in a lease for the lessee 
 to erect buildings which are to be paid for by the lessor. The lessee 
 has the right to build and set off the appraised cost against the rent, 
 though notified by the lessor not to do so and that it would not be 
 paid for.*^^ 
 
 § 375. Rights under alternative options. — Where a lease for a 
 term of years contains a covenant on the part of the lessor that at the 
 expiration of the term the lessee shall be paid the appraised value of 
 the building or a new lease at an appraised rent shall be granted, the 
 lessee at the expiration of the term is entitled to retain the possession 
 till the covenant shall be performed by the lessor.*^* But in case the 
 
 *^ Woodward v. Payne, 16 Cal. "« Wheeler v. Hill, 16 Me. 329. 
 
 444. *=- Williams v. Kinsman, 21 Me. 
 
 «» Berry v. Van Winkle, 2 N. J. 521. 
 
 Eq. 390. *«3McVicker v. Dennison, 45 Pa. 
 
 «» Mcintosh V. Rector &c., 120 N. St. 390. 
 
 Y. 7, 23 N. E. 984; Deishler v. Gol- "*Van Beuren v. Wotherspoon, 
 
 baugh, 2 Ky. L. R. 231. 164 N. Y. 368, 57 N. E. 633.
 
 409 IN REGARD TO BUILDINGS AND lilPROVEMENTS. [§' 375 
 
 covenant for a landlord to pay for improvements does not give him an 
 alternative right to grant a renewal, the tenant is not entitled to con- 
 tinue in possession of the premises till payment is made or tendered.*®^ 
 
 Certain rights in regard to the removal of buildings or the renewal 
 of the term may be conferred upon the lessee and yet the lessor be 
 placed under no obligation to purchase improvements. Thus an 
 alternative provision that houses erected by the lessee may be removed 
 by him or sold to the lessor at a certain per cent, of their cost is not 
 sufficient to support an action against a lessor for refusal to pur- 
 chase.'*^® Where a lease provided that upon its expiration or if lessee 
 failed to perform its conditions, the lessor might purchase lessee's 
 property at appraised valuation, the lessee could not by acts that en- 
 titled the lessor to declare a forfeiture of the lease compel such 
 purchase.*®^ 
 
 However, a lessor, who has promised, in consideration of a lessee's 
 making improvements, to allow him to continue in possession as long 
 as he pays a stipulated rent, cannot go back on his promise without 
 accounting for the value of the improvements.*®^ This result was 
 reached though the promise was by parol and void by the statute of 
 frauds. It nevertheless constituted a valid defense in an action by the 
 landlord to oust his tenant from the premises.*®^ But a tenant in pos- 
 session under a verbal lease, who puts permanent and valuable im- 
 provements on the land under a promise of a written lease, is not en- 
 titled to recover the value of such improvements merely because the 
 landlord refuses to execute the written lease, where there has been no 
 eviction.*^" 
 
 A lease with mutual covenants for an appraisal of improvements 
 contained a separate covenant by the lessor to renew the lease or pay 
 for the building at the lessee's election, but no covenant on the part 
 of the lessee to accept a new lease if tendered. On this state of facts 
 the court applied the rule that a covenant will not be implied unless 
 it clearly appears from the words used that one was intended. Here 
 was a covenant by the lessor only, an agreement to give a new lease, 
 but there was none by the lessee to accept it. If it had been intended 
 to bind both, or to impose a correlative obligation on the other, a clear 
 
 *^Coatsworth v. Schoellkopf, 160 ^' Lewis v. Effinger, 30 Pa. St. 
 
 N. Y. 114, 54 N. E. 665, reversing 37 281; Brockway v. Thomas, 36 Ark. 
 
 App. Div. 295. 518. 
 
 «' Anderson V. Swift, 106 Ga. 748, *''= Oneal v. Orr, 5 Bush (Ky.> 
 
 32 S. E. 542. 649. 
 
 «' Kelly v. Chicago &c. R. Co., 93 '™ Yates v. Bachley, 33 Wis. 185. 
 Iowa 436, 61 N. W. 957.
 
 I 376] COVENANTS IX LEASES. 410 
 
 statement should have been made not only that one would give but 
 that the other would accept a lease. So the court held that the tenant 
 was not bound to accept a new lease, but had the option to accept one 
 in case the lessor did not take advantage of his right to pay for the 
 building.*^ ^ In a case where the lessor was given an option to renew 
 the lease instead of paying for improvements, and the lessee was bound 
 to accept the renewal term, the time of the election was held to be of 
 the essence. So the lessor was required to declare his election to renew 
 before the end of the term or he would be compelled to buy the im- 
 provements.*'^^ Where a lessor agrees to purchase improvements in 
 case the lease cannot be continued, the action of the parties in continu- 
 ing the lease forfeits the right of the lessee to be paid for the improve- 
 ments.*'^^ A single renewal would ordinarily be a compliance with 
 the option to buy or renew, and the acceptance of a renewal lease by 
 the lessee would constitute a waiver of any further rights on his part 
 in regard to a purchase of the improvements by the lessor.*'^* This held 
 true, although the renewal was for a short term and the renewal 
 agreement provided that the lease should be renewed "with all its con- 
 ditions unchanged and unimpaired."*^^ Still it is perfectly possible 
 to provide for a series of renewals or even for a perpetual renewal in 
 the original agreement.*'^^ 
 
 § 376. Improvements as part of realty. — A building constructed 
 upon land by the lessee thereof under an agreement whereby the lessor 
 was to pay the cost of the materials upon the termination of the lease, 
 and the building was to remain upon the land, becomes a part of the 
 realty upon forfeiture by failure to pay rent.*" A provision for re- 
 newal of the kind under consideration does not prevent the lessor from 
 terminating the lease for non-payment of rent according to authority 
 conferred by a clause in the lease. In such an event the lessee has no 
 claims under the alternative provision that the lessor shall buy the 
 improvements at an appraised value unless he renews the lease. The 
 legal title to the building . belongs to the lessor. The well-settled 
 
 ^^^Zorkowski v. Astor, 156 N. Y. "'* Peirce v. Grice, 92 Va. 763. 24 
 
 393, 50 N. E. 983; Bruce v. Fulton S. E. 392. 
 
 Nat. Bank, 79 N. Y. 154; Booth v. *"= Kash v. Huncheon, 1 Ind. App. 
 
 Cleveland &c. Co., 74 N. Y. 15; Hud- 361. 
 
 son Canal Co. v. Pennsylvania Coal ^^«Kutter v. Smith, 2 Wall. (U. 
 
 Co., 8 Wall. (U. S.) 276. S.) 491, 17 L. Ed. 830. 
 
 "= Bullock V. Grinstead, 95 Ky. "" Switzer v. Allen, 11 Mont. 160, 
 
 261, 24 S. W. 867. 27 Pac. 408. 
 
 "'Parker v. Page, 41 Ore. 579, 69 
 Pac. 822.
 
 411 IN REGARD TO BUILDIXGS AND IMPROVEMENTS. [§ 377 
 
 rule is that such erections become a part of the land as each stone or 
 brick is fastened to the structure. The contract in question here 
 does not change this rule. The agreement to purchase means nothing 
 more than that, in a certain event, the lessor will pay the lessee the 
 value of the building, but there is no implication of any general title 
 or ownership in the lessee apart from that event. This contingency 
 has not occurred, and that it can never occur is the fault of the lessee. 
 In regard to the supposed hardship of taking the building without 
 compensation, the reply is that it is from the lessee's own fault that 
 this right arises.^^* Under a provision that, if the lessor did not ex- 
 ercise an option to buy improvements at an appraised value, the lessee 
 might remove them, the building was annexed to the land as part of 
 the realty, and the interest of the lessee in each was a chattel real. If, 
 at the expiration of the term the lessor did not buy the building, the 
 lessee's right to remove would arise and the building would become a 
 mere chattel.*^^ 
 
 An agreement in a lease that all buildings should belong to the 
 lessee, and that he could remove them at the end of the term, does 
 not prevent him from removing them at any time during the term if 
 he wishes.*^** A permit, authorizing a lessee to erect a building upon 
 the leased premises and allowing him "to take away or sell upon the 
 ground, said building so erected at his own expense, at the termina- 
 tion of said lease" limits the right to tal-e away the building, but not 
 the right to sell it. After such building becomes the property of a 
 third person, the cancelling of the lease cannot affect his rights ; but 
 he may take it away at the end of the term for which the lease was 
 originally given. *^^ 
 
 § 377. Such covenants run with the land. In accordance with 
 the general rule regarding the running of covenants, an undertaking 
 by the lessor to pay the value of improvements on the expiration of 
 the term runs with the land and, the right to enforce such payment 
 passes to the purchaser of the leasehold estate as incident to the 
 term.*^2 ^^^ a^ lessee covenanted to erect buildings upon a demised 
 
 *'«Kutter V. Smith, 2 Wall. (U. "» Adams v. Goddard, 48 Me. 212. 
 
 S.) 491, 17 L. Ed. 830; Newhoff v. «= Stockett v. Howard, 34 Md. 
 
 Mayo, 48 N. J. Eq. 619, 23 Atl. 265; 121; Hunt v. Danforth, 2 Curt. 592, 
 
 Paine v. Trinity Churcti, 7 Hun (N. 12 Fed. Cas. No. 6887; Woodward 
 
 Y.) 89. V. Payne, 16 Cal. 444, § 332. A 
 
 "'Newhoff V. Mayo, 48 N. J. Eq. contrary result was reached in Pe- 
 
 619, 23 Atl. 265. terson v. Haight, 1 Miles (Pa.) 250, 
 
 *'" Alexander v. Touhy, 13 Kan. on the ground that ther3 was no 
 
 64. privity of contract between a sec-
 
 § 377] COVENANTS IN LEASES. 412 
 
 lot, not only the lessee, but the assignee and the executors of the as- 
 signee, would have been liable in an action for a breach of the covenant. 
 If the assignee would be liable on such a covenant, surely he must have 
 a right of action for the violation of a corresponding covenant on the 
 part of the lessor.**^ But the covenant would not run unless assigns 
 were expressly named and in that event an action for the value of the 
 improvements must be brought in the name of the original lessee. The 
 subject of the covenant was not in esse at the date of the lease. It 
 was to pay for buildings to be erected, not to repair existing build- 
 ings.*** So it has been held that a covenant on the part of a lessor that 
 at the end of the term he will pay the lessee the appraised value of 
 the improvements placed thereon by the latter, is not one that runs 
 with the land and is not enforceable against a grantee of the lessor.**^ 
 But if covenants are reciprocal and assignees are expressly mentioned 
 there seems to be no valid reason why the assignee of a lessor should not 
 be bound by a covenant to purchase improvements or new buildings.*®* 
 The case would be different where there was no covenant on the part 
 of the lessee to improve. A covenant to run with the land must touch 
 and concern it and it is difficult to see how a covenant to pay a pecuni- 
 ary consideration for a house, if the tenant shall think proper to erect 
 it, can be said to touch and concern the land.*®^ Where the right to 
 terminate a lease was conditional upon the payment of the lessee for 
 improvements erected by him, the sum could be paid into court in case 
 the lease had been assigned and it was not necessary for the lessor to 
 decide whether the lessee or his assignee was entitled to the sum thus 
 paid. Payment into court was sufficient to establish the right to ter- 
 minate the lease.**® Where the value of improvements has been paid 
 to a lessee with no notice of an assignment, a bill brought by an as- 
 signee of the lease, more than a year after it has expired, to recover 
 the value of improvements, cannot be maintained.*®^ It is a question 
 of intention as to whether the lessee intends to transfer his contractual 
 rights to remove structures by an assignment of the leasehold estate. 
 
 ond assignee of the lease and the 111. App. 386; Bream v. Dickerson, 
 
 original landlord. 2 Humph. (Tenn.) 126. 
 
 *" Lametti v. Anderson, 6 Cow. *^^ Frederick v. Callahan, 40 Iowa 
 
 (N. Y.) 302; Spencer's Case, 5 Coke 311; Ecke v. Fetzer, 65 Wis. 55, 26 
 
 16. N. W. 266. 
 
 ^** Thompson v. Rose, 8 Cow. (N. *" Bream v. Dickerson, 2 Humph, 
 
 Y.) 266. (Tenn.) 126. 
 
 ^'Tallman v. Coffin, 4 N. Y. 134; ^' Estabrook v. Stevenson, 47 Neb. 
 
 Hansen v. Meyer, 81 111. 321, 25 206, 66 N. W. 286. 
 
 Am. R. 282; Watson v. Gardner, 119 "' Cronin v. Watkins, 1 Tenn. Ch. 
 
 111. 312, 10 N. E. 192, affirming 18 119.
 
 413 IN REGARD TO BUILDINGS AND IMPROVEMENTS. [§ 378 
 
 If the intention of the parties by the assignment is to transfer the own- 
 ership of the buildings, an alternative contract by the lessor to pur- 
 chase passes with it to the assignee.*^'' 
 
 § 378. Mechanics' liens for improvements. — A lessor who stipu- 
 lates in his lease for the erection by the lessee of a building upon the 
 demised premises, which is to become the property of the lessor upon 
 the termination of the lease by expiration or otherwise subjects his 
 title to mechanics' liens arising from the erection of the building. 
 This is true notwithstanding the lease provides, under penalty of for- 
 feiture, that the lessee shall permit no mechanics' liens to attach to the 
 premises.*^ ^ If the improvements were made and the material fur- 
 nished under a contract authorized by the lessor, he must be held to 
 have subjected his title in the premises to the builder's lien, if the lien 
 is otherwise valid.*^^ The improvements were to become the property 
 of the lessor at the termination of the lease. In this state of the facts 
 it may be truthfully said that the improvements on the lot and the ma- 
 terials necessary to make them, were made and furnished by his con- 
 sent and for his benefit. He not only consented to them, but con- 
 tracted with his lessees for them.*®^ According to this view the lien 
 attaches to the whole of the property, — the owner's title. It is his con- 
 tract, not that of the lessee's, — and he gets the full benefit of it. A 
 provision in a ninety-nine year lease at an annual rent that the lessor's 
 interest in a building to be erected on the premises as a joint enterprise 
 of the parties shall be exempt from mechanics' liens is void, as being 
 an attempt to set aside the law of the land. The parties here were 
 acting together in the construction of the building. Each was inter- 
 ested in it and within the meaning of, the mechanics' lien law they 
 were, as to those who should furnish labor or material in the construc- 
 tion of the building, owners of the building."*^* Even under mechan- 
 ic's lien statutes without a provision including those whom "such 
 owner has knowingly permitted to improve," etc., the result would be 
 
 ""California Ann. Conference v. N. W. 294; Henderson v. Connelly, 
 
 Seitz, 74 Cal. 287, 15 Pac. 839. 123 111. 98, 14 N. E. 1; Carey-Lom- 
 
 "' Carey-Lombard Lumber Co. v. bard Lumber Co. v. Jones, 187 111. 
 
 Jones, 187 111. 203, 58 N. E. 347, re- 203, 58 N. E. 347, reversing 87 111. 
 
 versing 87 111. App. 533. App. 533. 
 
 "^O'Leary v. Roe, 45 Mo. App. *^' Gruner Lumber Co. v. Nelson, 
 
 567; Hall v. Parker, 94 Pa. St. 109; 71 Mo. App. 110. 
 
 Barclay v. Wainwright, 86 Pa. St. "* Crandall v. Sorg, 198 111. 48, 64 
 
 191; Burkitt v. Harper, 79 N. Y. N. E. 769, reversing 99 111. App. 
 
 273; Hill v. Gill, 40 Minn. 441, 42 22.
 
 § 379] COVENANTS IN LEASES. 414 
 
 the same and the doctrine is fully sustained by numerous decisions.*^" 
 The cases which hold that a lessee who is authorized to make repairs 
 or improvements on the premises cannot create a lien against his les- 
 sor, stand on the ground that a lien is created on the estate of the les- 
 see under the statute and the statute cannot be construed to give at 
 the same time, under such circumstances, a lien against the estate in 
 reversion.^^® In one case the agreement for building took the form 
 that the lessor agreed to pay to the lessee a gross sum toward the erec- 
 tion of a house on the demised premises. It was held that the rever- 
 sionary interest of the lessor was bound by the mechanics' lien against 
 the premises.*®'^ 
 
 Nevertheless, the estate of the lessor cannot be subjected to a lien for 
 work done or material furnished under a contract with the lessee, un- 
 less the agreement or consent of the lessor is shown, or unless he has 
 done some act to make his estate liable. A statute which confers a 
 lien upon the leasehold interest, must be construed with reference to 
 the common-law rule, that the burden of repairs is cast upon the ten- 
 ant and that the landlord is under no implied obligation to make 
 them.^^s 
 
 A landlord who leases property with a condition that certain im- 
 provements are to be made in lieu of rent, is not bound for the debts 
 of his tenant contracted in making those improvements.*^" A re- 
 quirement that a lessee shall "put cash in repairs" to a certain amount 
 does not confer a right of charging such repairs against the landlord 
 or his property by means of a mechanic's lien.^^'^ Nor could the land- 
 lord be charged on such a lien by reason of allowing the tenant to de- 
 duct the cost of repairs from the rent.^''^ 
 
 § 379. Proceedings for appraisal. — In no case where a provision 
 for the appraisal of permanent improvements is made is it contem- 
 plated that evidence or the statement of the parties should be heard, 
 but the appraisers are merely to examine the property and use their 
 
 «= Miller v. Mead, 127 N. Y. 544, 40 Pa. St. 63; Boteler v. Espen, 99 
 
 28 N. E. 387; Schmalz v. Mead, 125 Pa. St. 313. 
 
 N. Y. 188, 26 N. E. 251; Burkitt v. *'« 2 Jones on Liens, § 1276; Miller 
 
 Harper, 79 N. Y. 273. Lumber Co. v. Wilson, 56 Ark. 380, 
 
 "«McCue v. Whitwell, 156 Mass, 19 S. W. 974. 
 203, 30 N. E. 1134; Francis v. ^^^ Jones v. O'Farrel, 1 Nev. 354. 
 Sayles, 101 Mass. 435; Conant v. ^o" Schrage v. Miller, 44 Neb. 818, 
 
 Brackett, 112 Mass. 18. 62 N. W. 1091. 
 
 "'Williams v. Vanderbilt, 145 111. =°^ Boone v. Chatfield, 118 N. Car. 
 
 238, 34 N. E. 476; Leiby v. Wilson, 916, 24 S. E. 745.
 
 415 IN KEGAED TO BUILDINGS AND IMPROVEMENTS. [§ 379 
 
 own Judgment in determining value. There is no dispute to be settled 
 or trial to be had, as is the case where there is an arbitration and award. 
 Where a proceeding is an arbitration, it is necessary that a time and 
 place should be fixed for a hearing, — that the parties should receive 
 notice, in order that they might appear and introduce their evidence 
 and make their statements before the arbitrators. But nothing of this 
 kind is required in a case of this character, No evidence is to be heard. 
 The appraisers ascertain such facts as may have a bearing on the value 
 of the improvements, in their own way, and act upon their own 
 judgment.^"^ 
 
 In regard to the time at which the valuation of the improvements 
 should be made, they must be valued as they were at the time the lease 
 expired. The lease contemplates a settlement of this whole question 
 at its expiration ; then it is that the buildings are to be examined and 
 a final adjustment made. Everything looks to that time.^"^ 
 
 A mere agreement for appraisal, though binding on the parties, is 
 not a submission to arbitration, and is not subject to the same rules.^"* 
 The appraisers chosen by the parties to make such appraisal are not 
 arbitrators within a statutory provision requiring arbitrators to be 
 sworn.^"^ The distinction between appraisal and arbitration is 
 brought out in the rule laid down in regard to the necessity of 
 notice to the parties of the meeting of the persons selected to make 
 the decision. The approved rule is that "unless the submission ex- 
 pressly shows that the parties intended that the arbitrators should de- 
 cide the questions in dispute without the aid or presence of the parties, 
 or it is evident that such was the intention, as tvliere the matter is 
 merely one of appraisal, the arbitrators must give both parties notice 
 of the time and place of meeting,"^"^ But in case the appraisers had 
 to construe the contract, and determine its meaning before they could 
 determine what value should be set upon the building it was held that 
 notice of the meeting of the appraisers should be sent to the parties. 
 The argument for this requirement is that the appraisers were not 
 merely to determine the simple matter of the value of specific prop- 
 erty, but, necessarily, to construe the contract and determine its legal 
 effect. In such a case the parties had the same right to be heard before 
 
 ^' Pearson v. Sanderson, 128 111. ^^^ Pintard v. Irwin, 20 N. J. L. 
 
 88, 21 N. E. 200, affirming, 28 111. 497. 
 
 App. 571. ''"'Wood V. Helme, 14 R. I. 325. 
 
 ^°' Berry v. Van Winkle, 2 N. J. ^"Janney v. Goehringer, 52 Minn. 
 
 Eq. 390. 428, 54 N. W. 481. 
 
 ""^ California Annual Conference 
 V. Seitz, 74 Cal. 287, 15 Pac. 839.
 
 § 380] COVEITANTS IN" LEASES. 41G 
 
 their cause was adjudged as they would have in any general arbitra- 
 tion.^*'^ In one case in N"ew York the distinction between an appraisal 
 and arbitration was rejected in its entirety. ^•'^ 
 
 In case the parties did not concur in the appointment of appraisers, 
 but all the appraisers were appointed by one party, their finding would 
 not be final, but the question of damages would be decided by the 
 j^py 509 However, if the parties cannot agree upon an appraisement 
 or upon the appointment of appraisers according to the provisions 
 of the deed, it has been held that appraisers might be appointed for 
 the purpose by the court. ^^"^ 
 
 § 380. Restraints upon building. — ^A covenant by a lessee that he 
 will make no alteration or addition to the buildings or to the premises 
 themselves is broken by the erection of a wooden structure which might 
 be removed as a trade fixture before the expiration of the term. The 
 fact that it could be removed without leaving any permanent traces 
 that it had ever been on the premises would not affect the matter. 
 The same argument might be advanced of a building erected of more 
 permanent materials. It was a building, and not a mere covered box. 
 If it had been placed there by the owner of the fee, it would have be- 
 come a part of the realty, and, therefore, it was an addition.^ ^^ 
 
 But a covenant in a lease "that no alteration or addition shall be 
 made during the term of the lease in or to the premises without the 
 consent of the lessors," does not relieve the lessees from liability for 
 injuries resulting to a third person from want of repair of the premi- 
 ses. It was contended for the lessees that they had no legal right to rem- 
 edy the defect, and, therefore, were not responsible for it because their 
 lease provided that no alteration or additions should be made by them. 
 But the court held that the repairing of a defect was not an alteration 
 or an addition within the meaning of the lease. In any case a covenant 
 
 ^*Van Cortlandt v. Underbill, 17 to become tbe appraisers; and by 
 
 Johns. (N. Y.) 405, Spencer, C. J., whatever name they are called they 
 
 said: "Notwithstanding the ingeni- were substantially arbitrators, with 
 
 ous distinctions made between an plenary power to decide upon the 
 
 appraisement, under an agreement subject of difference between the 
 
 entered into many years before the parties." 
 
 appraisement takes place and an ^°^ Holliday v. Marshall, 7 Johns, 
 
 ordinary submission to arbitration, (N. Y.) 211. 
 
 I confess that I do not feel the force "" City of Providence v. St. John's 
 
 of these distinctions. It makes no Lodge, 2 R. I. 46. 
 
 difference when the contract was "* Whitwell v. Harris, 106 Mass. 
 
 made. It took its effect from the 532. 
 mutual agreement as to the persons 
 
 I
 
 417 IX REGARD TO BUILDINGS AND IMPROVEMENTS. [§ 381 
 
 to continue a nuisance would not exonerate them from liability to 
 third persons.^ ^^ In order to constitute a breach of such an agree- 
 ment, the structure must be on the leased premises. In holding the 
 erection of a building upon an adjacent lot was not a breach of a cov- 
 enant not to make alterations without the landlord's written consent, 
 it was said : "The tenant has made no alteration in the building leased 
 to him by anything done directly to that building." The tenant alone 
 is injured by the shutting off of light and air, if it be an injury, and he 
 alone has a right to complain of it.^^^ 
 
 A recital of the purpose for which leased premises are to be used has 
 been held to restrict the kinds of buildings which may be erected upon 
 them; so that an injunction would be granted against the erection 
 of buildings of a different character, for they indicated an intention 
 to put the premises to a use forbidden by the terms of the lease.^^* 
 
 § 381. Tenant's right to light and air against landlord. — The 
 
 prevalent rule in the United States is that an easement in the un- 
 obstructed passage of light over an adjoining close cannot be acquired 
 by prescription.^^^ A grant of the right to the use of light and air 
 will not be implied from the conveyance of a house with windows over- 
 looking the land of the grantor. ^^*' The law of implied grants and im- 
 plied reservations, based on necessity or use alone, is not to be applied 
 to easements for light and air over the premises of another.^^^ It fol- 
 lows, that a landlord will not be liable for obstructing his tenant's 
 windows by building on an adjoining close, in the absence of any 
 covenant or agreement in the lease forbidding him to do so.^^^ But 
 
 ""City of Boston v. Worthington, Keating v. Springer, 146 111. 481, 34 
 
 10 Gray (Mass.) 496. N. E. 805; Mullen v. Strieker, 19 
 
 ''"Atkins v. Chilson, 9 Mete. Ohio St. 135; Morrison v. Mar- 
 
 (Mass.) 52. quardt, 24 Iowa 35; Palmer v. Wet- 
 
 "* Kraft V. Welch, 112 Iowa 695, more, 2 Sandf. (N. Y.) 316; Myers 
 
 84 N. W. 908. V. Gemmel, 10 Barb. (N. Y.) 537. 
 
 "= Keating v. Springer, 146 111. Contra, Janes v. Jenkins, 34 Md. 1; 
 
 481, 34 N. E. 805; Guest v. Reyn- Lampman v. Milks, 21 N. Y. 505, 
 
 olds, 68 111. 478, overruling Gerber 512 (semble). 
 
 v. Grabel, 16 111. 217; Keats v. Hugo, "^Mullen v. Strieker, 19 Ohio St. 
 
 115 Mass. 204; Mullen v. Strieker, 135; Haverstick v. Sipe, 33 Pa. St. 
 
 19 Ohio St. 135, 142; Pierre v. Fer- 368; Keiper v. Klein, 51 Ind. 316. 
 
 nald, 26 Me. 436; Napier v. Bui- "'Keating v. Springer, 146 111. 
 
 winkle, 5 Rieh. L. (S. Car.) 311; 481, 35 N. E. 805; Myers v. Gemmel, 
 
 Cherry v. Stein, 11 Md. 1; Hub- 10 Barb. (N. Y.) 537; Palmer v. 
 
 bard v. Town, 33 Vt. 295; "Ward Wetmore, 2 Sandf. (N. Y.) 316; 
 
 V. Neal, 37 Ala. 500, § 359. Keiper v. Klein, 51 Ind. 316, 
 
 "^ Keats V. Hugo, 115 Mass. 204; 
 Jones L. & T.— 27
 
 §' 382] COVENANTS IN LEASES. 418 
 
 the authorities all agree that the right to have the light and air enter 
 the windows of a building over an adjoining lot may exist by express 
 grant, or by virtue of an express covenant or agreement. ^^^ So a cov- 
 enant by a lessor not to build on a close adjoining the demised prem- 
 ises is binding on him, and a breach of it constitutes a constructive 
 eviction which justifies an abandonment of the premises by the tenant. 
 But the tenant is still bound for the rent if he continues to occupy 
 the premises.^^" Though the tenant will not be allowed to plead 
 eviction as a bar to the recovery of rent, yet he is not for that reason 
 without remedy. In those states where the doctrine of recoupment 
 is recognized, he may recoup such damages as he may have sustained 
 by reason of the acts of the landlord, against the rent sought to be re- 
 covered.^^^ The injury grows out of the same transaction as the claim 
 for rent, and recoupment is clearly applicable. 
 
 V. Restricting Use of Premises. 
 
 § 382. Validity of restrictions. — A lessee has, by implication, the 
 right to possess and enjoy the property during the term specified, and 
 to put it to such use and employment as he pleases, not materially dif- it 
 ferent from that in which it is usually employed, to which it i& 
 adapted, and for which it was constructed.^-^ But the mode of use 
 may be restricted by express agreement, a lessee having no right to de- 
 vote the premises to a use other than that stipulated in the lease with- 
 out the consent of the owner. In the absence of express prohibition,, 
 offices rented for real estate business could be used by a constable 
 without a breach of the covenant.^^^ A landlord may by contract law- 
 fully restrict his tenant's use of the property, and, in case of such an 
 agreement, if the latter use the demised premises for a purpose pro- 
 hibited by the lease, it is a breach of the agreement for which the law 
 affords relief.^ ^* A covenant in a lease that the lessee shall sell no 
 
 "'Hilliard v. Gas Coal Co., 41 481, 34 N. E. 105; Lindley v. Miller^ 
 
 Ohio St. 662; Brooks v. Reynolds, 67 111. 244; Lynch v. Baldwin, 69 
 
 106 Mass. 31; Keating v. Springer, 111. 210; Pepper v. Rowley, 73 111. 
 
 146 111. 481, 34 N. E. 805; Keats v. 262. 
 
 Hugo, 115 Mass. 204; Morrison v. "= Nave v. Berry, 22 Ala. 382; 
 
 Marquardt, 24 Iowa 35. Bucklen v. Cushman, 145 Ind. 51, 
 
 "^=°Skally V. Shute, 132 Mass. 367; 44 N. E. 6; Reed v. Lewis, 74 Ind. 
 
 Chicago &c. Co. v. Browne, 103 111. 433, 39 Am. R. 88. 
 
 317; Edgerton v. Page, 20 N, Y. 281, ==* White v. Kane, 53 Mo. App. 
 
 284. 300. 
 
 "» Keating v. Springer, 146 111. "^Haywood v. Ramge, 33 Neb.
 
 419 EESTRICTING USE OF PREMISES. [§ 382 
 
 beer upon the leased premises except that manufactured by a certain 
 brewing company may be enforced by the company for whose benefit 
 the contract is made, although the company is not a party thereto. A 
 covenant by a lessee not to carry on a particular business, or not to 
 carry on any business except a business named, on the leased premises, 
 is binding and may be enforced. ^^^ It has been uniformly held that a 
 provision in a deed that no intoxicating liquors shall be manufactured 
 or sold on the premises conveyed is valid, however much the same may 
 affect the value of the property conveyed.^^® "It will not be doubted," 
 said Judge Cole, of the Wisconsin court, "that the landlord, having the 
 jm disponendi, may annex whatever conditions he pleases to his grant, 
 provided they be neither contrary to law nor the principle of reason or 
 public policy."^^^ 
 
 A lessor may bind himself by a contemporaneous parol agreement, 
 made in consideration of the execution of the lease, not to engage in 
 a rival business in the same city; and in an action by the lessee for 
 damages and for injunctive relief, parol evidence of the agreement is 
 competent.^ ^* Such a promise not to engage in a rival business is not 
 void, because not in writing.°^^ A restrictive covenant in a lease of 
 offices to a telegraph company, that during the term the lessor will 
 not lease offices in the building to any other telegraph company for 
 use as a telegraph office without the consent of the lessee, will not pre- 
 vent another telegraph company, subsequently purchasing the fee sub- 
 ject to existing leases, from using the building for its own offices. The 
 covenant does not place any restriction on the use of the building 
 further than an inhibition against leasing for a telegraph office, and a 
 court cannot interpolate into that contract something it does not con- 
 tain and make it apply to the use of the building instead of the leasing 
 to another.^^" 
 
 836, 51 N. W. 229; Steward v. Win- Barrie, 56 Mich. 314, 22 N. W. 816; 
 
 ters, 4 Sandf. Ch. (N. Y.) 587; Sutton v. Head, 86 Ky. 156, 5 S. W. 
 
 Dodge V. Lambert, 2 Bosw. (N. Y.) 410. 
 
 570; Brouwer v. Jones, 23 Barb. ^-^ Brugman v. Noyes, 6 Wis. 1. 
 (N. Y.) 153; De Forest v. Byrne, 1 "«Welz v. Rhodius, 87 Ind. 1, 44 
 
 Hilt. (N. Y.) 43. Am. R. 747. 
 
 ^^ Ferris v. American Brewing °^ Doyle v. Dixon, 97 Mass. 208; 
 
 Co., 155 Ind. 539, 58 N. E. 701. Lyon v. King, 11 Mete. (Mass.) 
 
 "'Cowell v. Springs Co., 100 U. 411; Hill v. Hooper, 1 Gray (Mass.) 
 
 S. 55, 57, 25 L. Ed. 547; Collins 131; Wiggins v. Keizer, 6 Ind. 252; 
 
 Mfg. Co. V. Marcy, 25 Conn. 242; Hill v. Jamieson, 16 Ind. 125. 
 O'Brien v. Wetherell, 14 Kan. 616; '^^'' Postal Tel. &c. Co. v. Western 
 
 Indian &c. Co. v. Sikes, 8 Gray Union &c. Co., 155 111. 335, 40 N. 
 
 (Mass.) 562; Watrous v. Allen, 57 E. 587, 51 111. App, 62. See also, 
 
 Mich. 362, 24 N. W. 104; Smith v. Kemp v. Bird, L. R. 5 Ch. Div. 549.
 
 § 383] COVENANTS IN LEASES. 430 
 
 A lessee's title to an adjoining estate cannot enable him to dispense 
 with a stipulation regarding passageways made by him as lessee of 
 the demised estate; a foriiori his title under the lease cannot enable 
 him to close up a gangway which, for the benefit of the leased premises 
 as well as of the adjoining estates, he agreed in the lease to keep open 
 during his entire term. The lease looks through the term and, as be- 
 tween him and his landlord, restricts his rights as tenant in this very 
 particular ; and such title might as well be urged as enabling him to dis- 
 pense with any other stipulation of the lease as the one under consid- 
 eration.""^ 
 
 § 383. What constitutes a covenant for restrictive use. — Whether 
 a recital in a lease as to the purpose for which the premises are to be 
 used, without an express prohibition against their use for other pur- 
 poses, precludes their use for other purposes, is a matter about which 
 courts have disagreed. On one side a recital that premises were to be 
 occupied as a lumber yard was held to be an express covenant to oc- 
 cupy them as a lumber yard. To constitute an express covenant, no 
 formal, technical, or precise terms are required, but whenever the in- 
 tent of the parties can be collected out of the deed, for the doing or not 
 doing a particular thing, that is sufficient to make an express covenant. 
 The intention here was as plain as if the words of the lease were "I 
 covenant and agree to occupy the premises as a lumber yard," and, 
 therefore, occupying them for another purpose was a breach of the 
 covenant.^^^ According to this doctrine a stipulation against sub-let- 
 ting except for certain purposes would restrict the use of the premises 
 by sub-tenants to the specified purpose.^^^ On the other hand, a mere 
 statement in a lease of the purj)ose for which the premises are leased 
 has been held not to be a covenant against their use for other purposes, 
 relying on the rule that restrictions upon beneficial use are not to be 
 raised by implication. In a case where this question arose, after the de- 
 scription of the jDremises in a lease, there followed the clause "to be 
 used as cabinet ware-rooms." The court, in holding this did not restrict 
 the lessees to such use, said: "Of course the intention of the parties 
 must control in the case. . . . We do not feel authorized in saying 
 that the sense and meaning of the words employed show that it was the 
 intention of the parties to restrict the use of the building for cabinet 
 
 °" Beckwith v. Howard, 6 R. I. suit is reached in Maddox v. White, 
 
 1, 11. 4 Md. 72; Freer v. Stotenbur, 2 
 
 '"^De Forest V. Byrne, 1 Hilt. (N. Keyes (N. Y.) 467; Farwell v. 
 
 Y.) 43; White v. Kane, 53 Mo. App. Easton, 63 Mo. 446. 
 
 300. By implication the same re- "^ Farwell v. Easton, 63 Mo. 446.
 
 421 EESTKICTIXG USE OF PREMISES. [§ 383 
 
 ware-rooms, and prohibit the use of them for anj' other purpose. We 
 think such a construction is forced. . . . It is obviously inconsistent 
 with the principles upon which courts of equity act, to raise by implica- 
 tion a covenant in restraint of a beneficial use of property."^^* Had the 
 restrictive clause been followed by the words, "and for no other Tcind of 
 lusiness," equity would then have enforced the restrictive covenant.^^^ 
 Thus the use of part of premises for a saloon or dramshop was not a 
 proper use when a restriction provided they were "to be used for 
 studio, salesroom, and dwelling purposes, and for no other purpose 
 whatever."^^^ Where a store was leased "to be occupied for a grocery 
 store, and for no other purpose," it was held necessary actually 
 to conduct a grocery store to comply with the covenant, while storing 
 groceries there was a breach of the condition.^^^ 
 
 A restriction in a lease of premises that they are "to be used as a 
 first-class liquor saloon only" is a restriction upon the class of liquor 
 saloon, — it must be first-class. It could not be the intention of the 
 parties, in view of the contingencies^ affecting the procurement of the 
 license, that the lessee should pay the rent during the term for prem- 
 ises which were to remain idle unless he could open a saloon there. It 
 is not a letting for an unlawful purpose merely because a liquor 
 license had not been obtained first.°^^ 
 
 A covenant is to be construed according to its terms, and these may 
 prohibit a different use without compelling a continued use for the 
 purpose named. In such case the lessee does not covenant to continue 
 the use, but merely covenants not to use the premises "for any other 
 purpose." A covenant not to use the demised premises for any other 
 purpose than a specified one is not broken by ceasing to use them for 
 that purpose, provided it is not used for anything else.^^'' 
 
 A stipulation in the lease of a quarry having openings on four sides 
 that it shall be worked as the face now opens, is not violated by quar- 
 rying one of the faces to a greater extent than the others/ 
 
 540 
 
 '^^Brugman v. Noyes, 6 Wis. 1. ^^^ McCormick v. Stephany, 57 N. 
 
 See also, Shumway v. Collins, 6 J. Eq. 257, 41 Atl. 840. 
 
 Gray (Mass.) 227. =^° Keeler v. Green, 21 N. J. Eq. 
 
 ""^ Steward v. Winters, 4 Sandf. 27. A lease provided that lessee 
 
 Ch. (N. Y.) 587. should not mine the land south or 
 
 "'Bryden v. Northrup, 58 111. east of a certain building, and it 
 
 App. 233. was held that this restriction cov- 
 
 "^ White v. Naerup, 57 111. App. ered the land southeast of the build- 
 
 114. ing. Oskaloosa College v. Western 
 
 =^«Kerley v. Mayer, 31 N. Y. S. Union &c. Co., 90 Iowa 380, 54 N. 
 
 818, 10 Misc. R. (N. Y.) 718. W. 152, 57 N. W. 903.
 
 § 384] COVENANTS IN LEASES. 433 
 
 § 384. Equity will restrain an infraction of an agfreement in a 
 lease in regard to the use of the premises, although such lease does 
 not contain a formal covenant or a forfeiture clause with a right of 
 reentry. ^*^ When the mode of occupation is fixed by the lease, or 
 when the intention of the parties to confine the leased premises to a 
 special use may be fairly implied from the words of the lease, then 
 the tenant may be enjoined from converting the property to other 
 purposes.^*^ The danger of irreparable injury from the breach of 
 covenant need not be shown to entitle the lessor to an injunction. An 
 injunction to stay waste would issue on allegations that the complain- 
 ant was the owner and entitled to the possession of premises and the 
 tenant was insolvent and threatened to destroy improvements.^*^ A 
 right of reentry reserved in a lease can rarely be said to be in law a 
 fair equivalent for the performance of the lease. This is obviously 
 true if the reentry have the effect of terminating the lease. Even if 
 the tenants' obligation to pay rent continues after forfeiture, the land- 
 lord would have to account for the value of the possession, or at least 
 for such rents as he should make, or might with proper diligence 
 make, by means of such possession. That could not be so beneficial 
 to the landlord as performance of the lease by the tenant.^** A court 
 of equity will not, however, exercise its jurisdiction to enjoin a breach 
 of a negative covenant, unless it is express or can be fairly implied 
 from the stipulation of the parties, and injury will result from its 
 breach. If a party has not seen fit to stipulate expressly against the 
 objectionable act in his contract, a court of equity will not, by impli- 
 cation, insert it.^*^ And even where the covenant expressly requires 
 
 ■^ Spalding Hotel Co. v. Emerson, "^ Frank v. Brunnemann, 8 W. 
 
 69 Minn. 292, 72 N. W. 119; Bryden Va. 462; High on Injunctions, § 714. 
 
 V. Northrup, 58 111. App. 233; Ferris "* Stees v. Kranz, 32 Minn. 313, 
 
 V. American Brewing Co., 155 Ind. 20 N. W. 241. 
 
 539, 58 N. E. 701; De Forest v. "= Postal Tel. &c. Co. v. Western 
 
 Bryne, 1 Hilt. (N. Y.) 43; Dodge Union Tel. Co., 155 111. 335, 40 N. 
 
 V, Lambert, 2 Bosw. (N. Y.) 570; E. 587, affirming 51 111. App. 62; 
 
 Maddox v. White, 4 Md. 72; Frank Sheets v. Selden, 7 Wall. (U. S.) 
 
 V. Brunnemann, 8 W. Va. 462; Kirk- 416; Des Moines R. Co. v. Wabash 
 
 Patrick v. Peshine, 24 N. J. Eq. R. Co., 135 U. S. 576; Consolidated 
 
 206; Gannett v. Albree, 103 Mass. Coal Co. v. Schmisseur, 135 111. 371, 
 
 372; Kraft v. Welch, 112 Iowa 695, 25 N. E. 795. In granting the re- 
 
 84 N. W. 908. lief prayed for in Spalding Hotel 
 
 ^"Reed v. Lewis, 74 Ind. 433; Co. v. Emerson, 69 Minn. 292, 72 
 
 Steward v. Winters, 4 Sandf. Ch. N. W. 119, the court said: "While, 
 
 (N. Y.) 587; Maddox v. White, 4 as before stated, there was no ex- 
 
 Md. 72. press or formal covenant as to the
 
 4S3 RESTRICTING USE OF PREMISES. [§ 385 
 
 that the premises be used for a specified purpose, equity will not en- 
 force affirmative compliance with it, for that would be requiring a per- 
 son to carry on a business.^*^ 
 
 A lessor who, seeing a lessee spend money in preparing property for 
 a use forbidden by the lease on the faith that no objection will be 
 made, stands by and makes no objection, cannot have the covenant en- 
 forced in equity. If the lessor acquiesces in the doing of acts which are 
 inconsistent with the covenant, he cannot come to a court of equity to 
 have the covenant or contract enforced.^*^ But for all injury caused 
 by a prohibited use of leased premises the lessee is liable to the lessor 
 in damages in an action at law.^*^ 
 
 § 385. A covenant for exclusive personal occupation on the part 
 of the lessee cannot be classed as one of the usual covenants in a lease. 
 
 If there is no promise by the lessee that he will personally occupy, the 
 "ordinary covenants" which a conveyancer is instructed to insert in 
 an instrument of lease will not embrace a covenant for exclusive per- 
 sonal occupation upon the part of the lessee, or that he will not con- 
 duct the leased farm by agents or employes.^*^ Such a stipulation is, 
 however, valid and binding if inserted in a lease, and a covenant that 
 the lessee, his executors and administrators shall constantly reside 
 upon the demised premises during the demise has been held to run with 
 the land and to be binding upon the assignee of the lessee, though he be 
 not named. Such a covenant is quodam modo annexed and apperti- 
 nant to the thing demised, according to the first and sixth resolutions 
 in Spencer's case, and, therefore, the assignee would be bound though 
 he were not expressly named. ^^"^ 
 
 The right of a landlord to interfere with and control the domestic 
 relations of his tenant has received no recognition in the United States. 
 
 use to which the premises should covenant in respect to the use of 
 he put in the lease, there was cer- the premises, with a formal forfeit- 
 tain language used therein and ure and right of reentry clause, 
 some stipulations, which, fairly con- No effect can be given to this por- 
 strued, amounted to an agreement tion of the lease unless it be held 
 that the building was to be occu- that there was a positive and en- 
 pied by the tenant for hotel pur- forceable agreement of the nature 
 poses only. It was recited that above mentioned." 
 the premises leased were an hotel =*« Hooper v. Broderick, 11 Sim. 
 building, and were demised .and 47. 
 
 leased for hotel purposes and to be ''" Malley v. Thalheimer, 44 Conn, 
 
 operated as such. [There was] 41. 
 
 language and stipulations which in "' Taylor v. Koshetz, 88 111. 479. 
 this form of action ought to be con- "" Clark v. Clark, 49 Cal. 586. 
 strued as equivalent to an express ^^^^ Tatem v. Chaplin, 2 H. Bl. 133.
 
 §' 386] COVENANTS IN LEASES. 434 
 
 The relation of landlord and tenant rests upon contract, and in the 
 absence of a stipulation to the contrary, a landlord cannot exclude 
 from the domicile of the tenant the wife of the latter. The previous 
 bad character of the tenant's wife did not constitute a breach of any- 
 legal or moral duty due from the tenant to the landlord, and the ten- 
 ant could not be excluded from the enjoyment of the premises because 
 he occupied them with his wife.^^^ 
 
 § 386. An agreement by a lessee not to "make or suffer" an unlaw- 
 ful use of the premises should be interpreted as a stipulation that 
 there shall be no unlawful use by the original lessee, or by any per- 
 son who is occupying under him. The reason for this interpretation 
 is that it is easy for the lessee to control the use of the property, and 
 to protect the interests of the lessor and of himself in this particular. 
 With this interpretation effect is given to the word "suffer." It may 
 not be reasonable to hold that the covenant makes the lessee liable for 
 an unlawful use of the property by trespassers; but he may well be 
 held to "suffer" an unlawful use of the property if he does not take 
 effectual measures to prevent such a use by those who occupy by his 
 authority.^^^ 
 
 A covenant on the part of the lessee to keep the premises clean, and 
 not to occupy them for a saloon or meat market was held to be broken 
 by the use of them for a morgue. The word "clean" was used in an 
 absolute and not in a comparative sense. The terms of the lease did 
 not authorize the lessees to occupy the premises for any business, how- 
 ever foul in itself, by excepting that of a meat market and a saloon. 
 On the contrary, the agreement to keep the premises clean would pre- 
 vent their use for any purpose which would necessarily make them 
 foul and unclean. The condition expressed was not merely to keep the 
 premises clean, provided the nature of the use to which the lessees 
 should subject the property would render that possible, or as clean as 
 the nature of the business which the lessee might elect to carry on 
 there would allow, but to keep them "clean."^^^ 
 
 Though a lease of rooms restrict their use to a particular purpose, 
 the lessor does not thereby retain any control over them which renders 
 it his duty to prevent their use for illegal gaming. It should be left to 
 
 '"Miles V. Lauraine, 99 Ga. 402, 12, 39 N. E. 409; Wheeler v. Earle, 
 27 S. E. 739. 5 Cush. (Mass.) 31. 
 
 ''^^^ Miller v. Prescott, 163 Mass. "^ Clemenston v. Gleason, 36 
 
 Minn. 102, 30 N. W. 400.
 
 425 AS TO SALE OF PREMISES. [§ 387 
 
 the jury whether or not the lease was a sham and the lessor was in ac- 
 tual control.^^* 
 
 VI. As to Sale of Premises. 
 
 § 387. An option in a lease giving the lessee a privilege of pur- 
 chasing the premises for a certain stipulated price is valid and en- 
 forceable as it is a part of the lease and supported by the consideration 
 thereof. It is not a separate and distinct offer which could be with- 
 drawn at any time before aeceptance.^^^ The general rule is that 
 where a contract consists of several distinct and separate stipulations 
 on one side, and a legal consideration is stated on the other, it must 
 be considered that the entire contract was in the contemplation of the 
 parties in each particular stipulation, and formed one of the induce- 
 ments therefor, and no one stipulation can be supposed to result from 
 or compensate for the consideration or any portion of it exclusive of 
 other stipulations, unless the parties have expressly so declared.^^*' The 
 privilege conceded to the lessee to purchase within the period of the 
 lease is as much a term of the lease, and binding upon the lessor, as 
 any other term of the instrument. The lessee, it is true, is not bound 
 to purchase ; but upon a good consideration the lessor bound himself 
 to sell upon certain terms if the lessee wished to buy.^^'^ Still Lord 
 Chancellor Eedesdale thought that a contract ought to be mutual to 
 be binding in equity, and that if one party could not enforce it the 
 other ought not to be permitted to do so.^^^ But there is no reason 
 why such an option should not be enforced. The contract was fair 
 
 ■^Robinson v. The State, 24 Tex. "'Lawrenson v. Butler, 1 Sch. & 
 
 152. Lef. 13. Chancellor Kent was of 
 
 °°^ De Rutte v. Muldrow, 16 Cal. the same opinion. In Clason v. 
 
 505, 513; Hall v. Center, 40 Cal. 63, Bailey, 14 Johns. (N. Y.) 488, he 
 
 67; Perkins v. Hadsell, 50 111. 216; said: "I have thought and have 
 
 Souffrain v. McDonald, 27 Ind. 269; often intimated that the weight of 
 
 Rogers v. Saunders, 16 Me. 92, 97; argument was in favor of the con- 
 
 Hawralty v. Warren, 18 N. J. Eq. struction that the agreement con- 
 
 124; Clason v. Bailey, 14 Johns, cerning lands, to be enforced in 
 
 (N. Y.) 484, 488; Parkhurst v. Van equity, should be mutually binding, 
 
 Cortland, 14 Johns. (N. Y.) 15; and that one party ought not to be 
 
 Kerr v. Day, 14 Pa. St. 112; Corson at liberty to enforce, at his pleas- 
 
 v. Mulvany, 49 Pa. St. 88; Schroeder ure, an agreement which the other 
 
 V. Gemeinder, 10 Nev. 355. was not entitled to claim. . . . 
 
 ^"^ Stansbury v. Fringer, 11 Gill But notwithstanding this objection 
 
 & J. (Md.) 149. it appears from the review of the 
 
 °" De Rutte v. Muldrow, 16 Cal. cases that the point is too well 
 
 505, 513. settled to be now questioned."
 
 § 387] COVENANTS IN LEASES. 426 
 
 and just in all its parts, and was not a hard or unconscionable bargain. 
 The mere option to purchase may be sold. It is as valid to agree to 
 sell property upon the condition that another will consent to buy as 
 upon any other condition. If the lessee has fairly bought and paid 
 for the option, there is no principle or policy of law violated in its 
 purchase.^^® 
 
 A covenant to convey to the lessee at any time during the term is a 
 continuing obligation running with the land and binding the lessor's 
 interest, with the option in the tenant to accept the same or not with- 
 in that time.^®** Under a stipulation giving to lessees the right and 
 privilege to purchase the leased premises at any time before the ex- 
 piration of the lease, for a sum to be paid down in cash upon the de- 
 mand of a deed prior to the expiration of the lease, the payment of 
 the stipulated sum or tender of it, within the time limited, is an es- 
 sential condition to the consummation of any binding contract of 
 sale. Equity cannot vary the terms of such a stipulation by an ex- 
 tension of the privilege. The time limited for acceptance is part of 
 the contract, and equity cannot interfere except in case of fraud or 
 mistake. It differs from the case of penalties which are annexed to 
 contracts to secure their performance.^"^ 
 
 In a case where the covenant was that if the lessee "should at any 
 time thereafter pay to the lessor" a specified sum, the lessor should 
 execute a deed of the leased premises, the court said : "If the covenant 
 had been to convey, upon the payment of the purchase-money during 
 the life of the lease, putting an end to the lease would have destroyed 
 the covenant. But the covenant is to convey whenever the purchase- 
 money should be paid. In such cases the conveyance may be demanded 
 at any time, and the existence, or non-existence, of the lease when the 
 demand is made, is immaterial to the rights of the parties."^"- The 
 answer to an objection that money was not tendered within the time 
 
 ^^'Hall V. Center, 40 Cal. 63, 67. lation of landlord and tenant, and 
 '""' Maughlin v. Perry, 35 Md. 352; the insurance went to the landlord 
 Schroeder v. Gemeinder, 10 Nev. as owner. Gilbert v. Port, 28 Ohio 
 355. "Where a lease contained an St. 276. Citing Townley v. Bedwell, 
 option to the lessee to purchase, 14 Ves. 591, where rents, under op- 
 and before he exercised his option tion to purchase lease, were held to 
 the premises burned down, it was belong to heir of lessor till option 
 held that the lessee could not elect was exercised when executor be- 
 to purchase, bring specific perform- came entitled to purchase money, 
 ance of the contract against the °'* Steele v. Bond, 32 Minn. 14, 18 
 lessor and claim the insurance on N. W. 830. 
 
 the burned buildings. At the time ''"^ Prout v. Roby, 15 Wall. 471, 
 
 of the fire the parties stood in re- 476.
 
 437 AS TO SALE OF PREMISES. [§ 388 
 
 limited in the lease is that mere default in the payment of money at 
 a stipulated time admits, in general, of compensation, and hence time 
 of payment is seldom treated as of the essence of real contracts. So 
 it has been held that a covenant for title was implied in a renewal of 
 a lease from year to year.^"^ But without carrying the doctrine to 
 such an extent, an option to purchase may be regarded as continuing 
 open during the period covered by a privilege of renewal in a lease, 
 the time not being limited to the years mentioned in the lease, nor 
 restricted to the time of the existence of the lease under the privilege 
 of renewal. The language is general, — at any time they wish to do so. 
 Construing it liberally, in favor of the lessor, it certainly gives to the 
 lessee the privilege of purchasing the property at any time during the 
 existence of the lease.^^* 
 
 § 388. A clause in a lease reserving to the lessor the right to sell 
 
 and providing that any of the premises sold during the term should 
 cease to be a part of the demised premises, is valid and enforceable. It 
 is clear from such a lease that the contract is not that the lessee is, at 
 all events, to hold for the term the land conveyed, but that his right 
 in so much as should be sold during the term should cease upon such 
 sale. Such bargains are common, and clauses inserted to express them 
 have often been given effect.^®^ Such a provision is not void as being 
 repugnant to the habendum of the lease. Any provision stipulating 
 that during the term a lessor may enter or may terminate the lease is, 
 in a sense, repugnant to words demising land- for a fixed term ; but 
 such stipulations are found in most leases, and are not held void be- 
 cause repugnant to the words of the demise. If it is clear that the 
 contract was that the lessee should take his estate subject to a defeas- 
 ance by a sale of the demised property by the lessor, to hold the clause 
 defining the reserved right of the lessor void because repugnant to the 
 demise would be unwarrantably to defeat an intention which the par- 
 ties have clearly expressed.^*'® The sale of a life estate in the land 
 would terminate a lease for years under such a provision, and the life 
 tenant is the proper person to give the thirty days' notice required by 
 the lease.^^'^ The objection that such an agreement is not mutual by 
 
 '^^'D'Arras v. Keyser, 26 Pa. St. ton, 161 Mass. 313, 37 N. E. 372; 
 
 249, 254. Aydlett v. Pendleton, 114 N. Car. 1, 
 
 °'* Schroeder v. Gemeinder, 10 18 S. E. 971. 
 
 Nev. 355. '''"' Shaw v. Appleton, 161 Mass. 
 
 '""Munigle v. Boston, 3 Allen 313, 37 N. E. 372; Hunnewell v. 
 
 (Mass.) 230; O'Connor v. Daily, 109 Bangs, 161 Mass. 132, 36 N. E. 751. 
 
 Mass. 235; Pynchon v. Stearns, 11 =" Aydlett v. Pendleton, 114 N. 
 
 Mete. (Mass.) 304; Shaw v. Apple- Car. 1, 18 S. E. 971.
 
 § 388] COVENANTS IN LEASES. 428 
 
 its terms is not valid. The lessor reserves the right to sell and the 
 lessee agrees to surrender possession at once upon sale. The lessee 
 could not be compelled by a new owner to hold the premises, and if 
 the occupation continued after the sale it would be by virtue of a new 
 agreement between the parties, and not by virtue of the lease. The 
 parties mean that a sale is to terminate the lease, ipso facto, and the 
 lessee's covenant signifies his assent to this.^®^ If a lessee is to vacate the 
 premises before the expiration of his term, only upon the contingency 
 that the lessors should desire to sell them, and upon notice of such 
 desire being given, no other purpose than that of selling would author- 
 ize the giving of the notice, and if the lessee is entitled to notice by ex- 
 press agreement, a notice stating no desire to sell can have no effect.^®* 
 Wliere a lease is conditioned on circumstances that land be not sold, a 
 hona fide sale is intended, and if a colorable sale is made, the lessee 
 may sue for damages. If the sale is a fraudulent one, made for the 
 purpose of defrauding the lessee out of his rights under the lease, it 
 is not such a sale as will defeat the contract; for where a contract 
 makes a sale a condition, it means a sale in good faith, and not a 
 fraudulent one. Parties who contract respecting a sale have in con- 
 templation a sale in good faith, and not one founded in fraud. It 
 would be strange if a lessor could, by a fraudulent sale made for the 
 purpose of defeating his lessee, avoid the lease and thus avail himself 
 of his own wrong.^^" If the powers of a court of equity are in- 
 voked by a bill for equitable relief against an alleged fraudulent sale, 
 a decree that the sale should be treated as in all respects subject to 
 the lease would meet all the lessee's equities. Conceding the sale to 
 be fraudulent, that would furnish adequate relief. ^^^ Or a lessee 
 might yield to a notice to quit, according to a covenant in the lease, in 
 case the lessor wished to put the land to a different use, and recover 
 damages as for an eviction if the landlord did not in fact discontinue 
 the former use.^'^^ Such a provision contemplates a sale which trans- 
 fers a present right of possession. Thus, where a contract for sale 
 was made prior to the expiration of a term, but did not take effect till 
 after the lease had expired, the lessee did not become entitled under a 
 provision allowing him the value of improvements in case of a sale 
 
 ^«« Rhode Island Hospital &c. Co. 5 N. E. 558; Davis v. Schweikert, 
 V. Baxter, 20 R. I. 553, 40 Atl. 1135. 130 Cal. 143, 62 Pac. 411. 
 
 ^"^ Sloan V. Cantrell, 5 Cold. ^'^ Allenspach v. Wagner, 9 Colo. 
 (Tenn.) 571. 127, 10 Pac. 802. 
 
 ""Trout V. Perciful, 105 Ind. 532, "= Salzgeber v. Mickel, 37 Ore. 
 
 216, 60 Pac. 1009.
 
 429 FOR INSUKANCE. [§ 389 
 
 during the term."^ But a sale subject to the lease was modified by a 
 provision that the purchaser could end the term by thirty days' notice, 
 and if the purchaser exercised that privilege the lessee could recover 
 the sum allowed by the lease on such a contingency.^^* 
 
 VII. For Insurance. 
 
 § 389. So common is the practice of fastening on the lessee the 
 burden of insuring that it has been held that, if an agreement be 
 made for a lease, with the usual covenants, the lessee is not entitled 
 to have the insurance covenant omitted. ^'^^ A general covenant on the 
 part of a lessee to insure puts him under obligation to take out in- 
 surance against fire if the demised premises consist of a building. A 
 general undertaking to insure is sufficiently definite without specify- 
 ing the kind of insurance to be effected. It would be hypercritical to 
 give a construction to general language which would exclude an in- 
 surance against loss by fire, or declare it too uncertain to be enforced 
 for any purpose. ^'^ The mode of insuring may be put within the con- 
 trol of either party. Thus a lessee, covenanting to insure for a certain 
 sum during the term in companies approved by the lessor, fulfilled his 
 covenant when he took out a policy for the benefit of both lessor and 
 lessee according to their respective interests ; and he was not bound to 
 renew a policy previously taken out by the lessor in his own interest 
 merely.^'^^ On the other hand, the control over the details of effecting 
 the insurance may be left with the lessor, and in such case he is respon- 
 sible for the solvency of the companies in which he insures. So a les- 
 see who has once complied with a convenant to pay extra insurance 
 cannot be compelled to pay over again when the insurance companies 
 selected by the lessor become insolvent.^'* A requirement in a lease 
 that the premises should be kept insured and the insurance assigned 
 to the lessor is sufficiently complied with to prevent a breach of con- 
 dition by the taking out of insurance alone without any assignment, 
 when the lessor makes no objection to such an arrangement.^'^^ But 
 the fact that a lessee was told by two or three insurance agents, to 
 whom he applied for insurance on the property, that such property 
 
 '''Stewart v. Pier, 58 Iowa 15, 11 "'Rhone v. Gale, 12 Minn. 54. 
 
 N. W. 711. "■ Sherwood v. Harral, 39 Conn. 
 
 ="Hazen v. Hoyt (Iowa), 75 N. 333. 
 
 W. 647. ^"Quincy v. Carpenter, 135 Mass. 
 
 "=Bodman v. Murphy, 35 Md. 154; 102. 
 
 citing Bunyon on Fire Ins., p. 132, =" Eberts v. Fisher, 54 Mich. 294, 
 
 133. 20 N. W. 80.
 
 §• 390] COVEXAXTS IN LEASES. 430 
 
 was not insurable, does not show such impossibility of performance 
 of the contract to insure as to excuse its non-performance.^ ®° 
 
 Although it was formerly a matter of some dispute as to whether a 
 covenant to insure might run with the land, it is now settled that such 
 a covenant runs with the land and binds assignees.^*^ A covenant, 
 to run with the land, must have for its subject-matter something 
 which sustains the estate or the enjoyment of it, and is, therefore, 
 beneficial to both lessor and lessee. A covenant to insure, which 
 had for its object the benefit of the lessor only, as where the money 
 paid in the event of a loss would go to him, has been regarded as 
 collateral ; but if the money is to be applied to repair or rebuild, then 
 it is in its character like a covenant to repair, which may run with 
 the land. When such a covenant to insure has for its object a build- 
 ing to be erected after the date of the lease but which, when erected, is 
 to be used by the lessee and is an essential ingredient in the agree- 
 ment of the parties for the creation of the estate, it is not indispensable 
 to make such a covenant run with the land, that assignees should be ex- 
 pressly named; but the covenant being one which may be annexed to 
 the estate and run with the land, equivalent words, or a clear intent 
 shown by the whole instrument, may suffice.^* ^ 
 
 § 390. Measure of damages for failure to insure. — Where a ten- 
 ant obligated himself, by a valid contract, to keep the leased premises 
 insured in a certain sum during the term of the lease, and without 
 sufficient excuse failed to do so, and if the building was worth the sum 
 mentioned and was wholly destroyed by fire, the extent of the tenant's 
 liability would be the amount of the lessor's damages, that is the 
 amount for which insurance was to be taken out. It was argued that 
 the tenant received no consideration for agreeing to insure the prop- 
 erty; that it contracted to pay the costs of insurance as part of the 
 rental, and the cost of the premium of insurance was the proper meas- 
 ure of recovery. The court refused to accept the proposition that the 
 lessor's damages arising out of the breach of the covenant were to be 
 measured by what it would have cost the lessee to secure the stipulated 
 insurance; and pointed out that the consideration for the lessee's 
 promise to insure was the obligation of the lessor to rebuild and repair 
 in case of fire and the suspension of rent as long as the premises re- 
 
 •"^ Jacksonville &c. R. Co. v. Merchants' Ins. Co. v. Mazange, 22 
 
 Hooper, 160 U. S. 514, 16 S. Ct. 379, Ala. 168. 
 
 40 L. Ed. 515. ^*=Masury v. Southworth, 9 Ohio 
 
 »" Vernon v. Smith, 5 B. & Aid. 1; St. 340. 
 
 li
 
 431 
 
 POR INSURANCE. 
 
 [§ 390 
 
 mained uninhabitable.^®^ The prevailing rule as to the measure of 
 damages for the breach by a tenant of a contract to insure is the loss 
 sustained by the landlord, not exceeding the amount of the policy 
 which the tenant covenanted to obtain.^®* The same doctrine as to 
 damages is applied in the case of an agent or factor who fails to in- 
 sure goods of his principal/*^ and in other cases where a person is re- 
 sponsible for a loss of insurance.^®' In New York a different rule of 
 damages is adopted as between landlord and tenant, and the landlord 
 can only recover the amount which would have paid the premiums for 
 the required insurance. The result of this practice is that the lessor 
 must place insurance himself in case the lessee fails to fulfil his cove- 
 nant to do so. According to this view damages resulting from the 
 burning of the building would not be the direct and natural conse- 
 quence of the breach of the contract to insure. The natural conse- 
 quence of the failure would be that the lessor would procure another 
 policy.^® ^ It seems clear that the lessor may, if he choose, proceed to 
 insure the premises on the default and recover the amount paid in 
 
 •«' Jacksonville U. P. R. & N. Co. 
 v. Hooper, 160 U. S. 514. 16 S. Ct. 
 379, 40 L. Ed. 515. 
 
 =** Douglass v. Murphy, 16 U. C. 
 Q. B. 113. 
 
 =^=Ela V. French, 11 N. H. 356; 
 Miner v. Tagert, 3 Bin. (Pa.) 204; 
 Perkins v. Washington Ins. Co., 4 
 Cow. (N. Y.) 645; Morris v. Sum- 
 merl, 2 Wash. C. C. 203; De Taslet 
 v. Crousellat, 1 Wash. C. C. 504; 
 Smith v. Price, 2 F. & P. 748. See 
 also, Bateman, Ex parte, 8 De Gex 
 M. & G. 263. 
 
 °*'Gray v. Murray, 3 Johns. Ch. 
 (N. Y.) 167; Soule v. Union Bank, 
 45 Barb. (N. Y.) Ill, 30 How. Pr. 
 105; Ainsworth v. Backus, 5 Hun 
 (N. Y.) 414; Hawkins v. Coult- 
 hurst, 5 B. & S. 343. 
 
 '^"National &c. Bank v. Hand, 
 80 Hun (N. Y.) 584, 30 N. Y. S. 
 508,89 Hun (N. Y.) 329, 35 N. Y. S. 
 449. The New York court went on 
 the authority of Dodd v. Jones, 137 
 Mass. 322, where a contract for the 
 sale of a house and lot contained 
 a promise that a grantor would 
 assign a policy of insurance. The 
 
 policy was not assigned, the prem- 
 ises burned; but the grantor was 
 only held liable for the amount of 
 the premiums. The court said : "The 
 agreement was not a contract of 
 insurance, but of sale; and the 
 measure of damages for the breach 
 of it was the value of the thing 
 sold. A sum that would procure a 
 similar policy, and thus place the 
 plaintiff in the position she would 
 have been in had there been no 
 breach of the contract, would in- 
 demnify her, and she cannot elect 
 to go without insurance, and hold 
 the defendant as insurer. Damages 
 resulting from the burning of the 
 building are not the direct and nat- 
 ural consequence of the breach of 
 the defendant's contract, and could 
 not have been contemplated by the 
 parties as included in it. The 
 natural consequence of the failure 
 of the defendant to perform his 
 contract would be that the plaintiff 
 would procure another policy of in- 
 surance, and she can not charge 
 the defendant with the conse- 
 quences of her neglect to do that."
 
 § 391] COVEXAXTS IX LEASES. 433 
 
 premiums from the lessee or from his surety. But when the parties 
 agreed that the lessor should attend to the taking out of the insurance 
 for the lessee, that would be more like a voluntary loan from the 
 lessor of the amount of the premiums, and the surety would not be 
 liable to repay such amount.^^^ If the lessee collects the insurance 
 after a loss and fails to covenant to rebuild with the proceeds, the 
 lessor has been allowed to recover the amount of the policy from 
 him.^«» 
 
 VIII. For Repairs. 
 
 § 391. A covenant by a lessee to repair has been regarded as one 
 of the usual covenants in a lease, so that under an agreement to 
 execute a lease with the usual covenants it has been held proper to 
 insert a covenant on the part of the lessee to repair.^^" "WTiere an 
 agreement for a lease expressly provides for a covenant by the lessee 
 to repair, he was held not to be entitled to have excepted from the 
 covenant "damage by fire or tempest."^^^ Although the lease which 
 contains a covenant to repair is for some cause invalid as a lease and 
 cannot be given in evidence, yet if the lessee enters and a year to 
 year tenancy is created, he will be bound by the agreement in this 
 respect. It cannot be taken as a proposition of law that a mere 
 verbal covenant or agreement to return the premises in the same con- 
 dition as taken, is not sufficient to fix the liability. This would assume 
 that such a contract must, in all cases, be in writing. Agreements 
 to repair or rebuild are agreements for work, labor, and materials 
 and are not required to be in writing. At common law a tenant for 
 years was entitled to necessary timber for repairing houses, fences, 
 etc., if there were no stipiilation to the contrary, but so far as the 
 parties have themselves stipulated in the lease for repairs, the court 
 must look to their express contract; an unqualified stipulation to re- 
 pair binding the tenant not only to make the repairs, but to find 
 the materials.^^* However, the landlord may contract expressly to 
 furnish materials, but, in such case, his failure to perform such con- 
 tract would not relieve the tenant from his express covenant to make 
 the repairs. He is under obligation to proceed with the repairs, but 
 may charge the cost of materials up against the landlord and deduct 
 it from the rent.^^^ 
 
 =^ Woodbridge v. Richardson, 2 ^" Sharp v. Milligan, 23 Beav. 419. 
 
 Thomp. & C. (N. Y.) 418. ^" Harris v. Goslin, 3 Harr. (Del.) 
 
 ^^ Hayes v. Ferguson, 15 Lea 340. 
 
 (Tenn.) 1. "os^ood v. Sharpless, 174 Pa. St. 
 
 =»» Kendall v. Hill, 6 Jur. N. S. 968. 588, 34 Atl. 319, 321. 
 
 I
 
 433 
 
 FOR REPAIRS. 
 
 [§• 393 
 
 A provision in a will which requires a tenant to keep a property 
 in good repair, and contains no exception relieving him from the duty 
 to make repairs occasioned by wear and tear or the elements, or other 
 named reason, obliges the tenant to maintain the property in good 
 repair, without regard to the cause of dilapidation.^®^ So, under a 
 general covenant to repair, the lessee's liability is not confined to 
 cases of ordinary and gradual decay, but extends to accidental in- 
 juries.^®'' A covenant by a sub-tenant to repair is not a mere cove- 
 nant of indemnity, but renders him liable to his lessor whether the 
 latter has paid the original landlord or not.^®* 
 
 § 392. It is the established rule of the common law that an ex- 
 press covenant to repair binds the covenantor to make good any in- 
 jury which human power can remedy, even if caused by storm, flood, 
 fire, inevitable accident, or the act of a stranger.^®® The foundation 
 of the rule is the doctrine that a person who has bound himself un- 
 conditionally cannot be relieved, and that a covenant to repair is 
 equivalent to a covenant to rebuild.^"" Although a man may be ex- 
 
 ^'^Ashby V. Ashby, (N. J.) 46 Atl. 
 522. 
 
 ^^' Kling V. Dress, 28 N. Y. Super. 
 Ct. 521, 525; Cohn v. Hill, 9 Misc. 
 (N. Y.) 326. 
 
 =°« Smith v. Coe, 1 Sweeny (N. Y.) 
 332. 
 
 ^°' California: Polack v. Pioche, 
 35 Cal. 416. Illinois: Barnhart v. 
 Boyce, 102 111. App. 172; Reno v. 
 Mendenhall, 58 111. App. 87. Iowa: 
 David V. Ryan, 47 Iowa 642. Ken- 
 tucky: Bohannons v. Lewis, 3 T. B. 
 Mon. (Ky.) 376, 380; Proctor v. 
 Keith, 12 B. Mon. (Ky.) 252. Mas- 
 sachusetts: Leavitt v. Fletcher, 10 
 Allen (Mass.) 119. Mississippi: 
 Fowler v. Payne, 49 Miss. 32. Mis- 
 souri: O'Neil V. Flanagan, 64 Mo. 
 App. 87. Ohio: Linn v. Ross, 10 
 Ohio 412. Pennsylvania: Hoy v. 
 Holt, 91 Pa. St. 88, 36 Am. St. 659; 
 Lincoln Trust Co. v. Nathan, 175 
 Mo. 32, 74 S. W. 1007. New York: 
 Beach v. Grain, 2 N. Y. 86. United 
 States: Dermott v. Jones, 2 Wall. 
 (U. S.) 1, 7. South Carolina: Mitch- 
 
 JoNES L. & T.— 28 
 
 ell V. Nelson, 13 S. Car. 105. Eng- 
 lish: Paradine v. Jane, Aleyn 26; 
 Walton V. Waterhouse, 3 Saund. 
 422a, n.; Bullock v. Dommitt, 6 
 Term. R. 650; Green v. Eales, 2 
 A. & E. (N. S.) 225, 42 E. C. L. 648; 
 Brecknock Co. v. Pritchard, 6 Term 
 R. 750. 
 
 «"" Fowler v. Payne, 49 Miss. 32; 
 Leavitt v. Fletcher, 10 Allen 
 (Mass.) 119; Allen v. Culver, 3 
 Denio (N. Y.) 284; Bigelow v. Col- 
 lamore, 5 Cush. (Mass.) 226; Phil- 
 lips V. Stevens^ 16 Mass. 238; Wal- 
 ton V. Waterhouse, 2 Saund. 422a, 
 n.; Abby v. Billups, 35 Miss. 618; 
 Bullock v. Dommitt, 6 Term R. 650; 
 Meyers v. Myrrell, 57 Ga. 516. In 
 Wattles V. South Omaha &c. Co., 50 
 Neb. 251, this doctrine of construc- 
 tion was severely criticized and with 
 the aid of a statute repudiated. The 
 reasoning of the court appears in 
 the following extract from the opin- 
 ion: "No one can find fault with 
 the principle that a man should be 
 compelled to perform what he has
 
 393] 
 
 COVENANTS IN LEASES. 
 
 434 
 
 cused from a duty imposed on him by law, if he is disabled from per- 
 forming it without any fault of his own; yet when, by his own con- 
 tract, he creates a duty or charge upon himself, he is bound to make 
 it good, notwithstanding any accident by inevitable necessity.^''^ If 
 it be urged that this is a hardship upon the lessee, the answer is that 
 it was his own folly to not stipulate against such inevitable conse- 
 quences.^*'^ So the covenant of a lessee or lessor to repair is not dis- 
 charged by the destruction of the premises by lightning, fire, or 
 wind.®"^ However, a nice distinction between repairing and rebuild- 
 ing was made in a case where a tenant had covenanted to make 
 all needful repairs at his own expense "except the putting on of a new 
 roof, new doors and new floors." As long as the old roof could be 
 repaired and no new roof was needed or called for, the expense of re- 
 pairs could not be charged against the landlord, but must be paid 
 by the lessee under his covenant.*"** 
 
 The statement of the rule is sometimes put in the form that under 
 an express covenant to keep and leave the premises in repair, the 
 lessee is bound to make good any injury from any cause not resulting 
 from the act or neglect of the landlord.®**^ Yet, where a lessee cove- 
 
 promised; but, with all due respect 
 to the supreme court of Massachu- 
 setts, it seems to us that the court 
 ignored the entire issue. The ques- 
 tion there was not whether the les- 
 see was obliged to perform a cov- 
 enant he had made, but the ques- 
 tion was what covenant he had 
 made; that is, whether his covenant 
 to repair and keep in repair the 
 demised premises included within 
 it a covenant on his part to rebuild 
 the buildings on the leased prem- 
 ises if they should be destroyed. 
 But in that case, as in the other 
 cases cited, and in every case that 
 we have been able to find which 
 supports the contention of the ap- 
 pellee here, it was taken for granted 
 that the rule of common law was 
 that a covenant by a lessee to repair 
 was equivalent to and involved a 
 covenant to rebuild. Assuming, 
 however, that such was and is the 
 rule of construction at common 
 law, are we bound by that rule? 
 
 . . . What did the parties to this 
 contract understand and intend by 
 the terms 'repair' and 'keep in re- 
 pair?' These words 'repair' and 
 'keep in repair' are not technical 
 words, nor should they be given a 
 technical or strained interpreta- 
 tion. They should receive their ordi- 
 nary interpretation. To repair, as it 
 is ordinarily used, means to amend, 
 not to make a new thing, but to re- 
 fit, to make good or restore an exist- 
 ing thing. When we speak of repair- 
 ing a thing, the very expression pre- 
 supposes something in existence to 
 be repaired." 
 
 ""1 Walton V. Waterhouse, 2 Saund. 
 442a, n. 
 
 ^"^ Bohannons v. Lewis, 3 T. B. 
 Mon. (Ky.) 376, 380. 
 
 ""'Flynn v. Trask, 11 Allen 
 (Mass.) 550; Chit. Contr. (10 Am. 
 Ed.) 803. 
 
 "<»* Powers V. Cope, 93 Ga. 248, 18 
 S. E. 815. 
 
 •="= Eisenhart v. Ordean, 3 Colo. 
 
 I
 
 435 POR REPAIRS, [§ 393 
 
 nanted to deliver up the premises in good order and condition, he was 
 held not responsible for a freshet which washed away a road along 
 a river so that it could not be repaired."^*' In this case the lessee 
 could neither prevent the damage by previous precautions nor repair 
 it by subsequent efforts. A covenant in a lease that the lessee will 
 maintain buildings in as good condition and repair as the same 
 are now in and return the same to the lessor at the expiration of the 
 lease, in as good condition as the same now are, reasonable wear and 
 tear from ordinary use alone excepted, imposes the duty on the lessee 
 to rebuild in case of the destruction of the buildings by accidental 
 gpe 607 "\Yhere a tenant covenants to build and leave in repair and does 
 build and the houses are destroyed by fire, this does not discharge 
 him. He must rebuild or pay the value of the building.*"** 
 
 However, any positive act of prevention by the covenantee, which 
 prevents the covenantor from performing, will release the latter 
 from liability. A lessor might discharge his lessee from his duty of 
 rebuilding a part of the premises by undertaking to do it himself. 
 If the lessor had occasioned the breach, that would be an answer to a 
 complaint founded on that breach on the ground that it was the act 
 of the lessor and not, as charged, the act of the lessee.^**^ 
 
 § 393. Kesponsibility for rebuilding rests on contract. — "The les- 
 see is not responsible to the lessor for the accidental, casual destruc- 
 tion by fire of the property demised unless by his covenant he has made 
 himself so.^^° In construing covenants, the cardinal rule is the in- 
 tention of the parties ; ... if there is not an express stipulation 
 to rebuild or restore edifices and structures destroyed by casualty or 
 some covenant which is equivalent thereto, such as a covenant to 'up- 
 hold and repair' or 'to repair,' then the loss must fall upon the rever- 
 sioner and not upon the lessee. And, lastly, the covenant to redeliver or 
 restore to the lessor in the same plight and condition, usual wear 
 and tear excepted (or other words of like import), does not bind the 
 
 App. 162, 32 Pac. 495; Allen v. 618; Cline v. Black, 4 McCord (S. 
 
 Howe, 105 Mass. 241; Hallett v. Car.) 431; Walton v. Waterhouse, 2 
 
 Wylie, 3 Johns. (N. Y.) 44; AVeigall Saund. 422a, n. 
 
 V. Waters, 6 Term R. 488. "'^ Pasteur v. Jones, Conf. Rep. (N. 
 
 "•^Waite V. O'Nell, 76 Fed. 408. Car.) 194. 
 
 607 Ely V. Ely, 80 111. 532; Arm- "»''' McHenry v. Marr, 39 Md. 510; 
 
 strong V. Maybee, 17 Wash. 24, 48 West v. Blakeway, 2 M. & G. 729, 40 
 
 Pac. 737; Reno v. Mendenhall, 58 E. C. L. 828. 
 
 111. App. 87; Phillips v. Stevens, 16 ""Walnscott v. Silvers, 13 Ind. 
 
 Mass. 238; Abby v. Billups, 35 Miss. 497.
 
 §■ 393] COVENANTS IX LEASES. 436 
 
 covenantor to rebuild in case of casual destruction by fire or impose 
 the burden of loss upon him."^^^ Where a tenant agrees to redeliver 
 the premises in a prescribed condition of good order, it is a ques- 
 tion of intention whether he intended to become bound to rebuild in 
 case of casual destruction by fire. An attendant circumstance should 
 be examined and the probable intention of the parties discovered.®^'' 
 On the face of the contract there is the express obligation on the 
 part of the lessees to deliver up "the house with the lots and appur- 
 tenances thereunto attached" at the expiration of the term. There 
 is no obligation to repair, but simply "to deliver up," meaning to 
 surrender back to the lessor. The decisions on this subject make a 
 distinction between an obligation "to repair and deliver up" and one 
 simply "to deliver up." Whilst the former binds the obligor to re- 
 build in case of loss by fire during the term, the latter is construed 
 simply as an obligation against holding over; and the lessee is not 
 bound to rebuild in case the buildings are destroyed.®^^ An agree- 
 ment merely to leave buildings erected on the premises does not bind 
 lessee to rebuild them when they are destroyd by fire or give lessor 
 any claim to insurance taken out by lessee for his own benefit.*^^* 
 But an express agreement to deliver up the premises at the end of 
 the term, in as good order and condition, reasonable use and un- 
 avoidable casualties excepted, as when they were received from the 
 lessor, binds the lessee to make repairs. Whatever repairs might be 
 necessary to keep the premises in good repair must be made by the 
 lessee under such an agreement ;®^^ and so, if an exception is not made 
 in case of destruction by fire, a lessee would be bound by such a 
 provision to rebuild structures destroyed by fire. But such was not 
 the result reached by the Texas court, where a covenant to deliver up 
 in good order at the end of the term without an undertaking to re- 
 pair, was held not to make the tenant liable to rebuild in case of 
 destruction by fire.®^^ However, a covenant in a lease that the tenant 
 shall keep the premises in good order, and deliver the same in good 
 
 «" Levey v. Dyess, 51 Miss. 501; «"Nave v. Berry, 22 Ala. 382; 
 
 Seevers v. Gabel, 94 Iowa 75, 62 N. Phillips v. Stevens, 16 Mass. 238; 
 
 W. 669; Wainscottv. Silvers, 13 Ind. Maggort v. Hansbarger, 8 Leigh 
 
 497; Maggort v. Hansbarger, 8 (Va.) 532; Warner v. Hitchins, 5 
 
 Leigh (Va.) 532; Fowler v. Bott, 6 Barb. (N. Y.) 666. 
 Mass. 63; Ellis v. Welch, 6 Mass. "^^Clemson v. Trammell, 34 111. 
 
 246; Hallett v. Wylie, 3 Johns. (N. App. 414. 
 
 Y.) 44; Warner v. Hitchins, 5 Barb. °'= Jaques v. Gould, 4 Cush. (Mass.) 
 
 (N. Y.) 666. 384. 
 
 »" Halbut V. Forrest City, 34 Ark. *'' Howeth v. Anderson, 25 Tex. 
 
 246. 557; Miller v. Morris, 55 Tex. 412.
 
 437 FOR REPAIRS. [§ 394 
 
 order as "they are now/^ on the expiration of the lease, binds the 
 tenant to rebuild in case the premises should be destroyed by fire.^^^ 
 
 The Mississippi Code provides that in the absence of an express 
 covenant to restore buildings destroyed by fire without fault on his part 
 a tenant is not bound to do so; and the covenant to leave building 
 in good repair is not equivalent to an express covenant. Where the 
 premises leased were a farm, and a valuable gin-house thereon was 
 destroyed by fire, it was held that by force of this statute rent would 
 be abated in proportion as the value of the premises was lessened. "^^^ 
 
 Some covenants in a lease do not put a hard and fast duty on the 
 covenantor. Thus, in a five-year lease of farming lands a lessee cove- 
 nanted to grow a good and substantial hedge fence by the close of the 
 term. This only imposed a duty on him to plant and faithfully to 
 cultivate it during the term. He did not guarantee a good fence.''^® 
 
 But, on the other hand, it has been held that a covenant in the 
 lease of a farm to keep fences in repair is equivalent to one to leave 
 them so, and binds lessee to repair after destruction by an unpre- 
 cedented flood. ^'^ Moreover, a covenant to deliver a certain number 
 of cattle and sheep at end of term takes effect as an absolute obli- 
 gation. It is not sufficient to show that by reasonable care the lessee 
 could not acquire so many during the term.*^^^ 
 
 § 394. The phrase "unavoidable casualty" is in common use in 
 leases in this country and has a well-settled and understood meaning. 
 
 It does not signify a mere want of repair, neither does it include any 
 injuries which may happen by reason of the common and ordinary 
 use of the estate leased or of adjoining premises. The term has a 
 much more restricted meaning. By a strict definition, as applied to 
 the subject-matter, it signifies events or accidents which human pru- 
 dence, foresight and sagacity cannot prevent.*'^ ^ The bursting of 
 boilers at low pressure steam was held to be an "unavoidable cas- 
 ualty." It was proper to interpret the words, not according to their 
 strict and philosophical signification, which might defeat the inten- 
 tion of the parties, but rather in conformity with their popular, every- 
 day acceptation, and, in accordance with such an interpretation, there 
 
 "" Schmidt v. Pettit, 8 D. C. 179. ^-^ More, Estate of, 121 Cal. 609, 54 
 
 '^« Taylor v. Hart, 73 Miss. 22, 18 Pac. 97. 
 
 So. 546. "" Welles v. Castles, 3 Gray 
 
 "^''Gilchrist v. Gilchrist, 76 111. 281. (Mass.) 323; Tays v. Ecker, 6 Tex. 
 
 "="' Spafford v. Meagley, 8 W. L. J. Civ. App. 188, 24 S. W. 1030. 
 (Ohio) 323; Proctor v. Keith, 12 B. 
 Mon. (Ky.) 252.
 
 § 395] COVENANTS IN LEASES. 438 
 
 was in a rupture of the boilers a degree of unexpectedness, as of some- 
 thing unforeseen and not contemplated in the making of the con- 
 tract, which makes it proper to regard it as an unavoidable cas- 
 ualty."-^ If the negligence of the tenant was a proximate cause of 
 the injury he would not be protected by a clause exempting him from 
 liability for damage to the premises '^by fire or other unavoidable 
 accident not happening through the neglect of the lessee." The ques- 
 tion whether it was negligence to leave an awning down during a wind 
 storm was properly left to the jury. The contention that it should 
 have been decided by the court in favor of the plaintiff as a matter 
 of law was without foundation.*'^* So it was held in another case that 
 a cellar window broken by a stone accidentally kicked by a passing 
 team is not broken by inevitable accident. The kicking of the stone, 
 so far as the lessee was concerned, may have been inevitable, but not 
 the breaking of the window, which might have been protected by a 
 blind or wire netting. The burden of proving that the window was 
 broken by inevitable accident was on the lessee.**^^ 
 
 Another expression used in this connection with a similar meaning 
 is "fortuitous event," which has been defined to be something which 
 happens by a cause that cannot be resisted. It was held that the 
 inability of lessees to operate a plantation for the third year of their 
 lease, on account of their financial failure and the fact that their 
 creditors took possession of their movable property, must be deemed 
 to be the result, of their own improvidence and could not properly be 
 called a fortuitous event."-" 
 
 § 395. "Damages by the elements" which are ordinarily excepted 
 from a lessee's covenant to keep in repair, cover destruction by fire 
 occurring without fault or negligence in the lessee. Where lessee 
 covenants to return the premises in like condition as when taken 
 "damages by the elements excepted," it was held that this expression 
 was sufficiently broad to release lessee from liability when the premises 
 were destroyed by fire which originated without negligence on his part. 
 The court adopted a popular meaning for this expression."-'^ The 
 terms "the elements" and "damage by the elements" are somewhat 
 uncertain and indefinite expressions, and very little aid will be de- 
 
 «== Phillips V. Sun Dyeing &c. Co., "='- Taylor v. Syme, 162 N. Y. 513, 
 
 10 R. I. 458. 57 N. E. 83. 
 
 ^-^ Miles V. Stanke, 114 Wis. 94, 89 '=' Van Wormer v. Crane, 51 Mich. 
 
 N. W. 833. 363. 
 
 "-" Peck V. Scoville Mfg. Co., 43 111. 
 App. 360.
 
 439 FOR REPAIRS. [§■ 396 
 
 rived from resorting to any technical or scientific discussion of the 
 meaning of the word "elements." Such language refers only to some 
 sudden, unusual, or unexpected action of the elements, such as floods, 
 tornadoes or the like, — extraordinary disasters, not anticipated by 
 either party, the efficient cause of which originated after the term 
 began.*'^^ 
 
 The clause "damage by fire, wind or water excepted," was held to 
 include extraordinary damage only where the lease also contained a 
 specific covenant for the lessee to make at his own expense all neces- 
 sary repairs. Extraordinary damage from fire, wind, or water would 
 be unusual, partial, or total destruction. "Necessary repairs" were 
 held to mean necessary to keep that property, situated as it was, in as 
 good condition as it was then — the condition in which the lessee agreed 
 to return it.^^^ 
 
 § 396. The external parts of premises are those which form the 
 inclosure of them, and beyond which no part of them extends; and 
 
 it is immaterial whether those parts are exposed to the atmosphere, or 
 rest upon and adjoin some other building which forms no part of the 
 premises let. The expression "outside of a building" in a covenant 
 by a lessor to repair includes the whole outer shell of the building, 
 or external inclosure of roof and sides. The necessary repairs on the 
 outside are those which will make the building outwardly complete.''^*' 
 
 An undertaking by a lessee to bear one-third of expense of "out- 
 side" repairs of a church and belfry, was construed to mean that the 
 entire belfry was a part of the outside of the church.**^ ^ 
 
 In New York it is provided that where any building is so injured 
 as to become untenantable, a tenant may in the absence of an express 
 covenant to the contrary surrender it and avoid further liability for 
 rent. A covenant to make "all inside and outside repairs" is not an 
 express agreement against the right conferred by this statute. These 
 words import simply a general covenant. Under this clause the 
 lessee was bound to make all ordinary repairs, but was not called upon 
 to make those which were extraordinary. To give these words the 
 force and meaning contended for would make the lessee liable to re- 
 build in case of complete destruction of the premises. Under such a 
 construction there could be no other limitation upon the liability of 
 
 "^Harris v. Corlies, 40 Minn. 106, (Mass.) 119; Green v. Eales, 2 A. & 
 
 41 N. W. 940. E. (N. S.) 225, 42 E. C. L. 648. 
 
 "=" Waddell v. De Jet, 76 Miss. 104, "" First Cong. &c. Soc. v. Roches- 
 
 23 So. 437. ter, 66 Vt. 501, 29 Atl. 810. 
 
 "'"Leavitt v. Fletctier, 10 Allen
 
 § 397] COVENANTS IN LEASES. 440 
 
 the lessee. Such an interpretation is neither reasonable nor neces- 
 sary.®*^ 
 
 § 397. A general covenant to repair must be construed to have 
 reference to the condition of the premises at the time when the cove- 
 nant begins to operate.®^* "Good tenantable repair" has been defined 
 to be "such repair as having regard to the age, character, and locality 
 of the house would make it reasonably fit for the occupation of a rea- 
 sonable-minded tenant of the class who would be likely to take it."®** 
 A covenant to keep leased premises in repair only imposes upon the 
 tenant the obligation to keep the premises in as good repair as when 
 the agreement was made. Covenants to keep "in repair" and to 
 keep "in as good repair as they now are," are held to amount to the 
 same thing.®* ^ So, where an old house is rented with the usual 
 covenants to keep the same in repair, the covenantor will not be 
 bound to put it in an improved state, nor to avert the consequences 
 of the elements, but only to keep it in a state in which it was at 
 the time of the demise by timely expenditure of money and care."®** 
 But any direct injury to the freehold by an act of the tenant would 
 be a breach of a contract to deliver up the premises in like condition 
 as when received.®*'' 
 
 In one case a tenant covenanted to bear all the expenses of repair- 
 ing or improving the premises during the term. The building de- 
 mised was condemned by the city authority, who ordered the walls 
 to be rebuilt. It was held that the expense of rebuilding the walls 
 must be borne by the lessee under this covenant. The court say that, 
 in the absence of express contract, it would not have been the duty of 
 lessee to make other repairs than such as were necessary to preserve 
 the property in the condition it was when he rented, less such deteriora- 
 tion as time and ordinary use would cause; here his obligation does 
 not rest alone on the duty to repair which the law imposes on every 
 tenant, but upon his express contract made with a knowledge of the 
 condition of the house at the time he rented. The word means to 
 restore to a sound or good state after decay, injury, dilapidation, or 
 
 =^=May V. Gillis, 169 N. Y. 330, 62 &c. R. Co., 135 Mo. 173, 36 S. W. 602; 
 
 N. E. 385. Stultz V. Locke, 47 Md. 562; Middle- 
 
 •"^ Walker v. Hatton, 10 M. & W. kauff v. Smith, 1 Md. 329. 
 
 249, 258. «=" Gutteridge v. Munyard, 7 C. & 
 
 ^^^Proudfoot v. Hart, 25 Q. B. D. P. 129; Stultz v. Locke, 47 Md. 562; 
 
 42, per Lopes, L. J. Harris v. Goslin, 3 Harr. (Del.) 338. 
 
 ^^ St. Joseph &c. R. Co. v. St. Louis "" Murray v. Moross, 27 Mich. 203. 
 
 I
 
 441 FOR REPAIRS. [§397 
 
 partial destruetion.^^^ Even though a covenant stipulates that prem- 
 ises shall be put in perfectly good repair, this does not oblige the cove- 
 nantor to reconstruct out of a different kind of materials."^^ 
 
 A covenant to keep in "good repair" is much the same as a 
 covenant to keep in "tenantable repair." So there is a case deciding 
 that in order to satisfy the tenant's obligation under such a contract 
 it was not enough for him to deliver up the premises in the same 
 condition of repair as when he took them; he must deliver them up 
 in good repair, even if they were not in good repair when the tenancy 
 began. Parke, B., said in the course of his judgment: "This is a 
 contract to keep the premises in good repair as old premises, but that 
 cannot justify the keeping them in bad repair because they happened 
 to be in that state when the defendant took them."^*** Where the 
 covenant of the lessee required him to "preserve the property from 
 deterioration" he was thereby bound to do something with respect to 
 the property to off-set the natural wear and damage by the ele- 
 ments. ^*^ And a covenant to deliver the premises at the expiration 
 of the term, "in good tenantable repair in every respect," binds the 
 covenantor to restore the premises in such tenantable condition, with- 
 out any reference to the condition in which he received them.*'*^ 
 Leaving ashes and rubbish has been held to be no breach of an agree- 
 ment peaceably to yield possession of the premises in good tenantable 
 repair.''*^ 
 
 "Habitable" means "in such a condition as to be reasonably fit for 
 tenants to use for such purposes as the premises were reasonably and 
 naturally adapted and for such uses as they might be reasonably 
 put."«** 
 
 A covenant to repair only puts the lessee under obligation to make 
 such repairs as were necessary for his own use of the premises, and 
 does not render him liable to put them in first-class condition.''*^ So, 
 the principle has been laid down that, if a tenant takes a house which 
 is of such a kind that by its own inherent nature it will in course 
 
 '^ Martinez v. Thompson, 80 Tex. ''^ Scott v. Haverstraw &c. Co., 135 
 
 568, 16 S. W. 334. N. Y. 141, 31 N. B. 1102. 
 
 *^'Ardesco Oil Co. v. Richardson, «^ Brashear v. Chandler, 6 T. B. 
 
 63 Pa. St. 162. Mon. (Ky.) 150. 
 
 '*» Payne v. Haine, 16 M. & W. 541. "" Thorndike v. Burrage, 111 Mass. 
 
 So in Heintze v. Erlacher, 1 City 531. 
 
 Court (N. Y.) 465, a covenant to '^ Goss &c. Co. v. Oviatt, 60 Mo. 
 
 keep in repair was held to oblige App. 565. 
 
 the covenanter to put the premises "= White v. Albany Ry., 17 Hun 
 
 in repair if they were in such a state (N. Y.) 98. 
 that they needed it.
 
 §' 398] COVENANTS IX LEASES. 442 
 
 of time fall into a particular condition, the effects of that result are 
 not within the tenant's covenant to repair. However large the words 
 of the covenant may be, a covenant to repair a house is not a cove- 
 nant to give a different thing from that the tenant took when he en- 
 tered into the covenant. He has to repair that thing which he took ; 
 he is not obliged to make a new and different thing.''*® Moreover, if 
 in the course of making repairs, changes in the original construction 
 are made which improve the premises, the tenant is not bound to bear 
 the cost of that part of the work.®*^ A covenant by a tenant to keep 
 the premises in repair for a certain purpose will not be extended by 
 construction to bind him to repair for an entirely different purpose.®*^ 
 A covenant to restore premises to their original condition in a series 
 of leases binds lessee to restore to the condition in which the premises 
 were at the beginning of the first lease.*'*^ 
 
 Where premises which were out of repair were let and the tenant 
 covenanted to make "necessary repairs," the expression was held to 
 mean necessary to keep the property, situated as it was, in as good 
 condition as it then was, — the condition in which the lessee agreed to 
 return it; and, in case the lessee is insolvent, he must make such re- 
 pairs or submit to a cancellation of the lease.*'^'' 
 
 § 398. A lessee who has been compelled to rebuild has no claim 
 on insurance taken out by the lessor for his own benefit or claim for 
 contribution from the lessor. The erection of the new building, by 
 the lessee, was not done at the instance or by the procurement of the 
 lessor. It was the voluntary act of the lessee, done in performance 
 of his own covenants in the lease. He was not entitled to the con- 
 tribution, by the lessor, of any money toward the rebuilding. The 
 insurance money belonged to the assured, the owner of the building. 
 The title to it was purchased with his money, not that of the lessee. 
 He as well as the lessee had an insurable interest in the premises. 
 Either might have insured his interest. Although it may seem a 
 hardship for the lessee that he should sustain the whole cost of re- 
 building, while the owner of the premises will enjoy the ultimate 
 benefit thereof should the building remain, a court of equity cannot 
 for such reason impose upon the owner payment of part of such 
 cost.®^^ The fire-policy of a landlord, made in his own behalf at his 
 
 "^"Lister v. Lane, L. R. (1893), 2 "'Hooker v. Banner, 76 Cal. 116, 
 
 Q. B. 212. 18 Pac. 136. j 
 
 "" Gutteridge v. Munyard, 7 C. & ^'^ Waddell v. De Jet, 76 Miss. 104, 
 
 P. 129. 23 So. 437. 
 
 «« Meyers v. Myrrell, 57 Ga. 576. '"^ Ely v. Ely, 80 111. 532.
 
 443 FOR REPAIRS. [§§ 399, 400 
 
 cost, does not attach to the building insured but is personal to him. 
 It is not a covenant running with the land, for these are always re- 
 ferable to tenure, and requires privity of estate and must affect it in 
 quantity, or quality, value, or enjoyment ; and a fire policy does none 
 of these things, and therefore does not inure to the benefit of a grantee 
 of the insured. The lessee is a grantee, a lease for rent being legally 
 a sale of the premises for the term.*'^^ 
 
 § 399. City ordinance forbidding wooden building^. — WQiere a 
 lessee of a frame building had bound himself to replace it in case of 
 destruction by fire, it was held that he was bound to build a brick or 
 stone building after a city ordinance had been passed forbidding the 
 erection of wooden buildings. The court argue that the parties must 
 have known that the city could pass such an ordinance at the time 
 they entered into the contract. If they intended that the passage of 
 such an ordinance should exonerate the lessee from his covenant they 
 should have so stipulated. The ordinance does not render the per- 
 formance of the covenant impossible. It simply makes it more bur- 
 densome and expensive, and that has never been an excuse for non- 
 performance.*'^^ The opposite result was reached in regard to a simi- 
 lar covenant by a lessor on the ground that the lessor had undertaken 
 to do something which by a change in the law had become illegal; 
 and his covenant had thereby been discharged. The court emphasized 
 the view that the lessor only undertook to replace the destroyed build- 
 ing with a similar structure and that would be inconvenient if not 
 impossible. Had the exact contingency which had since happened 
 been in the minds of the parties at the time, it is scarcely conceivable 
 that the lessor would have consented to put up a brick building and 
 rent it for the same price.''^* 
 
 § 400. A duty to maintain machinery in a leased mill will be cre- 
 ated by a covenant of the kind under discussion. So on the demise 
 of a cotton press, a covenant to keep the premises in good repair and 
 to leave them in good repair made it the duty of the lessee to put the 
 press in good order and if he failed to do so, the owner of tlie press 
 had a right to charge the lessee with the expenses of such repairs.'^^^ 
 Under a covenant in a lease, to keep a mill in necessary repairs, the 
 covenantor is not bound to add improvemnets or make additions, but 
 
 "'= Lovett V. United States, 9 Ct. ''■" Cordes v. Miller, 39 Mich. 581. 
 
 CI. 479; Carpenter v. Providence &c. "^'^ Simkins v. Cordele Compress 
 
 Ins. Co., 16 Pet. (U. S.) 495. Co., 113 Ga. 1050, 39 S. E. 407. 
 
 "" David v. Ryan, 47 Iowa 642.
 
 §§ 401, 402] COVENANTS IN LEASES. 444 
 
 he is required to renew existing machinery when too old and worn 
 to answer its purpose in the mill. If, for example, a strap gave way 
 and the material was too rotten and decayed to be mended, a new one 
 to take its place became necessary as a repair.^°® 
 
 § 401. Painting, papering and decorating. — In the case of Proud- 
 foot V. Hartf^"^ arising before the court of Queen's Bench, the court 
 below were of opinion that painting for decorative purposes could 
 not be required under a covenant to repair, and that repapering could 
 only be required in case it were necessary to preserve the walls and to 
 keep the plastering from falling down. On appeal the court above 
 agreed that the tenant was not bound to repaper simply because the 
 old paper was worn out, but under certain circumstances they thought 
 the tenant would be under obligation to repaper. The mere fact of 
 its being in worse condition does not impose on the tenant any obliga- 
 tion to repaper under the covenant, if it is in such a condition that a 
 reasonably-minded tenant of the class who would occupy such a house 
 would not think the house unfit for his occupation. The same reason- 
 ing makes it necessary that he paint it in such a way as would satisfy 
 a reasonable tenant taking such a house. Although decorations are 
 out of repair, the tenant is not bound by his covenant to repair or 
 replace them if the house would be acceptable to a reasonable tenant 
 of the class accustomed to occupy it Avithout any such decorations at 
 all. These views are in conformity with an early case to the effect that 
 under a covenant to repair, uphold, and maintain a house a tenant 
 was bound to keep up the inside painting.*'^® But even if there 
 is an express covenant to repair and paint, this does not necessarily 
 involve the entire repainting of the premises."^^ It has been held also 
 that a covenant by a landlord to repair did not contemplate that he 
 should restore wall decorations placed there by a previous tenant. *"^° 
 
 § 402. The point of time at which the then condition of the prem- 
 ises furnishes the standaid of repair which a lessee is bound to main- 
 tain is the time when the leasehold estate commences. After the date 
 of a lease and before the beginning of the term, certain repairs were 
 made on the leased premises by the lessee in consideration of his being 
 allowed to occupy them during that period. They were in effect rc- 
 
 "^^ Cooke V. England, 27 Md. 14. L. R. 717, affirmed 3 Times L. R. 
 
 '^"Proudfoot V. Hart, 25 Q. B. D. 392. 
 
 42, 47. ^'"'Goss &c. Co. v. Oviatt, 60 Mo. 
 
 "=' Monk V. Noyes, 1 C. & P. 265. App. 565. 
 •^^Moxon V. Townshend, 2 Times 

 
 445 FOR REPAIRS. [§ 403 
 
 paired by the lessees in behalf of the lessor, and stood as if they had 
 been put in repair by the lessor before the execution of the lease. So 
 that a covenant by the lessee to deliver up the premises "in as good 
 order and repair as the same now are" bound him to keep up these 
 repairs.^®^ The obvious meaning of a future lease is that the lessees 
 are to receive the premises at the beginning of the term in the con- 
 dition they were in when the lease was executed and were to keep it 
 in as good repair as it was on the latter day till the end of the term. 
 When, therefore, a shed on the premises fell before the term of lease 
 began and before the lessees took possession, it was incumbent upon 
 the lessor to rebuild it. This was essential in order to put the lessees 
 in a position to perform their undertaking and carry out the evident 
 intention of the parties to the contract.®®^ 
 
 § 403. When right of action accrues. — For injury to personal 
 property leased, any action for damages would be premature until the 
 expiration of the lease term. If the lessee under his contract agreed 
 to return the personal property "in as good condition as the same now 
 is," no cause of action for a breach of that covenant could arise until 
 the time came for a return of the property. The mere fact that it was 
 injured and damaged at some time during the life of the lease would 
 not show that it could not be returned subsequently in substantially 
 the same condition. It would not show but that repairs would place 
 it in the same condition as when leased.^^^ Where a lease contained 
 a covenant on the part of the lessee to deliver up the premises at the 
 end of the term in as good condition as he received them, this was held 
 not to be a continuing covenant to repair and keep in repair at all 
 times but that the tenant has the whole time until the end to put the 
 premises in repair. So when the premises were surrendered before 
 the end of the term the lessee was under no obligation to repair by 
 reason of his covenant. The repairs were to be made on the expira- 
 tion of said lease,^^^ 
 
 However, there is authority for allowing the lessor to bring an ac- 
 tion on the case against the lessee during the term ; such action would 
 not be prevented by the covenant of the lessee to leave the premises 
 in good repair. At common law a tenant was liable for waste from 
 accidental causes only where there was an agreement to repair. In all 
 
 ""^Holbrook v. Chamberlin, 116 ^^'Fratt v. Hunt, 108 Cal. 288, 41 
 Mass. 155. Pac. 12. 
 
 '"Lightfoot v. West, 98 Ga. 546, •"'* Reed v. Snowliill, 51 N. J. L. 
 25 S. E. 587. 162, 16 Atl. 679, reversing 49 N. J. 
 
 L. 292.
 
 404] 
 
 COVENANTS IN LEASES. 
 
 446 
 
 such cases the only remedy is by suit on the covenant; but where 
 the tenant is guilty of voluntary waste, and by his voluntary act injury 
 is done to the reversioner, then the lessor may bring his action during 
 the lease, even though the tenant may have it in his power to restore 
 the premises to their original state before its expiration.^"^ In a 
 leading English case on this subject. Lord Ellenborough, with whom 
 the other judges concurred, said that "the act of the tenant was an 
 injury to the title of the reversioners, and a present damage to 
 them/'««« 
 
 § 404. The obligation of a landlord in any case to repair and re- 
 build leased premises rests solely on express contract, and without an 
 express contract to that effect the landlord is neither bound to repair 
 leased premises himself nor to pay for repairs made by the tenant. It 
 is not in the power of a tenant to make repairs at the expense of his 
 landlord, unless there be a special agreement between them authoriz- 
 ing him to do this. The tenant takes the premises for better and for 
 worse and cannot involve his landlord in expense for repairs, without 
 his consent.^®'^ A covenant by a lessee to repair a part of the prem- 
 
 **= Moses V. Old Dominion &c. Co., 
 75 Va. 95. On page 102 the court 
 argues as follows: "If the landlord 
 is compelled to wait the expiration 
 of the term before he can sue, he 
 must of course run all the risks of 
 the tenant's continued solvency, 
 and of the loss of evidence by the 
 death or absence of witnesses. And 
 all this loss and inconvenience are 
 to be borne, because perchance the 
 tenant may conclude to repair the 
 property during the term, in the 
 face of his declaration that he will 
 not repair, and of his- express denial 
 of all liability for injury to the 
 estate. If the tenant refuses to re- 
 pair the premises, he can not com- 
 plain that the landlord does so. 
 He is thereby restored to his former 
 occupation, whereas he might have 
 been compelled to pay the rent with- 
 out the use and occupation. If by 
 his negligence, or misfeasance, the 
 property has been materially in- 
 jured he ought at once to make 
 
 good the loss by repairing it, or by 
 indemnifying the landlord for the 
 expense he has necessarily incurred 
 in making such repairs." 
 
 666 Provost V. Hallett, 14 East 489. 
 
 «*'' Turner v. Townsend, 42 Neb. 
 376, 60 N. W. 587; Witty v. Mat- 
 thews, 52 N. Y. 512; Libbey v. Tol- 
 ford, 48 Me. 316; Vai v. Weld, 17 Mo. 
 232; Brewster v. De Fremery, 33 
 Cal. 341; Estep v. Estep, 23 Ind. 
 114; Kahn v. Love, 3 Ore. 206; 
 Moore v. Weber, 71 Pa. St. 429; 
 Arden v. Pullen, 10 M. & W. 321; 
 Button V. Gerrish, 9 Gush. (Mass.) 
 89; Rogan v. Dockery, 23 Mo. App. 
 313; Hughes v. Vanstone, 24 Mo. 
 App. 637; Kaufman v. Clark, 7 D. 
 G. 1; Medary v. Gathers, 161 Pa. St. 
 87, 28 Atl. 1012; Hess v. Weingart- 
 ner, 12 Montg. Co. L. R. (Pa.) 105, 
 5 Pa. Dist. R. 451; Long v. Fitzim- 
 mons, 1 W. & S. (Pa.) 530; Wein- 
 steine .v. Harrison, 66 Tex. 546, 1 S. 
 W. 626.
 
 4-i7 FOR REPAIRS. [§' 404 
 
 ises was held to raise a fair implication that the balance was to be 
 repaired by the lessor and in that case the landlord cannot recover 
 rent after the building has become untenantable.^^^ The lessee must 
 suffer necessary repairs to be made, however, and is not justified in 
 abandoning the premises because of the lack of repair,'"'^ 
 
 As long ago as the time of Lord Mansfield it was laid down as an 
 established principle of law, that the consequence of the house being 
 burned down was, that the landlord was not obliged to rebuild, but 
 the tenant was obliged to pay the rent during the whole of the term.®''*' 
 If there has been no agreement or obligation on the part of the lessor 
 to repair the premises, the fact that they were out of repair would not 
 be a defense to an action to recover the amount of rent agreed to be 
 paid.^^^ Under a power to a tenant for life to lease for years reserv- 
 ing the usual covenants, a lease made by him containing a proviso, 
 that, in case the premises were blown down or burned, the lessor 
 should rebuild, otherwise the rent should cease, is void. Such a cove- 
 nant is not a usual covenant in a lease.**^^ From a provision in a 
 written lease that the lessee shall keep the premises in repair except 
 as to unavoidable accidents and natural wear and tear, the law will 
 not imply a covenant on the part of the lessor to repair damage caused 
 by unavoidable accidents.®''^ The only possible effect of the exception 
 of natural wear and tear would be to qualify or restrict the liability 
 of the lessee to the lessor to restore the premises in good condition.^''* 
 But where a part only of a building was leased and the lessee cove- 
 nanted to repair the part leased it was held that by implication the 
 lessor undertook to repair the rest of the building.®^ ^ A mere naked 
 promise of a landlord to repair the demised premises based on no suffi- 
 cient consideration cannot be enforced in favor of the tenant,^''*' but 
 such an agreement might be supported by the lessee's obligation to 
 
 "'^Bissell V. Lloyd, 100 111. 214. 33 W. Va. 32; Weigall v. Waters, 6 
 
 669 Murrell v. Jackson, 33 La. Term R. 488. 
 
 Ann. 1341. "'* Hartford &c. Co. v. Mayor &c., 
 
 "" Belfour v. Weston, 1 Term R. 78 N. Y. 1. 
 
 310; Fowler v. Bott, 6 Mass. 63; «" Mumf ord v. Brown, 6 Cow. (N. 
 
 Smith V. Kerr, 108 N. Y. 31, 15 N. Y.) 475. 
 
 E. 70, § 675. °'«Libbey v. Tolford, 48 Me. 316, 
 
 "'Moffat v. Smith, 4 N. Y. 126; 77 Am. Dec. 229; Hall v. Beston, 16 
 
 Burnes v. Fuchs, 28 Mo. App. 279; Misc. R. (N. Y.) 528, 38 N. Y. S. 
 
 Hill V. Woodman, 14 Me. 38. 979; Purcell v. English, 86 Ind. 34, 
 
 "=Doe V. Sandham, 1 Term R, 44 Am. R. 255; Proctor v. Keith, 12 
 
 705. B. Mon. (Ky.) 252; Eblin v. Miller, 
 
 "'Clifton V. Montague, 40 W. Va. 78 Ky. 371; Gottsberger v. Radway, 
 
 207, 21 S. E. 858; Kline v. McLain. 2 Hilt. (N. Y.) 342.
 
 § 405] COVENANTS IN LEASES. 448 
 
 comply with the recitals in a deed-poll which he had accepted.*'" 
 rurthermore voluntary repairs by a landlord raise no presumption of 
 a contract to repair. ®^^ The tendency of modern decisions is not to 
 imply covenants which might and ought to have been expressed if in- 
 tended. A covenant is never implied that a lessor will make any re- 
 pairs.^^* In one case the supposed implied covenant on the part of the 
 lessor was not for repairs to the property demised but related to other 
 property belonging to the lessor which, it was claimed, he bound him- 
 self by implication to keep in good order and repair. But there was 
 no covenant, either express or implied, that the lessor would build 
 or keep the premises in good order. Such was doubtless his intention 
 as expressed in the recital, but that was intended only for his own 
 benefit, and, whether he would continue to do so or not, was left to 
 depend entirely on his own will.*'^^ • A tenant refused to pay rent un- 
 less repairs were made and was notified to quit. It was held that a 
 subsequent promise of the landlord to make repairs, if the tenant 
 would stay at the same rental, was based upon a sufficient consideration, 
 and could be enforced by action.®^^ 
 
 Upon familiar principles of law, an authority given by a landlord 
 to a tenant to make repairs at his expense would terminate upon the 
 death of the landlord.®*^ 
 
 § 405. A tenant has no equity to compel his landlord to expend 
 money received from an insurance company, on the demised premises 
 being burned down, in rebuilding the premises; nor can the tenant 
 restrain the landlord from suing for the rent until the premises are 
 rebuilt.^ *^ But if the lessor has covenanted to rebuild structures de- 
 stroyed by fire, qompliance with that covenant is a condition precedent 
 to his right to collect rent and the lessor's breach releases the lessee 
 from further liability.®^* In the absence of a covenant by the lessor 
 to rebuild, however, a lessee's covenant to pay rent is not affected by 
 an injury to the premises, nor limited by the exception of unavoid- 
 able casualty in his subsequent covenant to repair, and the liability 
 for rent would also be independent of the lessor's covenant to make 
 
 «"Vass V. "Wales, 129 Mass. 38. ^^^ Moyer v. Mitchell, 53 Md. 171. 
 
 "* Moore v. Weber, 71 Pa. St. 429, "" Conkling v. Tuttle, 52 Mich. 
 
 10 Am. R. 708. 630. 18 N. W. 391. 
 
 *" Witty V. Matthews, 52 N. Y. «"= Wilson v. Edmonds, 24 N. H. 
 
 512; Sheets v. Selden, 7 Wall. (U. 517, 547. 
 
 S.) 416; Pomfret v. Ricroft, 1 Saun- "^ Leeds v. Cheetham, 1 Sim. 146. 
 ders 321, 322, n. 1; Post v. Vetter, *'* Lincoln Trust Co. v. Nathan, 
 
 2 E. D. Smith (N. Y.) 248. 175 Mo. 32, 74 S. W. 1007.
 
 449 FOR KEPAiRS. [§§' 406, 407 
 
 outside repairs.^^^ It is well settled that the exception of a lessee's 
 liability on his covenant to repair in case of damage by fire does not 
 raise an equity in his favor for an injunction against an action under 
 the contract for payment of rent after the destruction of the house by 
 gj.g 686 Qjj fi^Q destruction of a leased building, the tenant has the 
 right to build on the premises and occupy such building for the re- 
 mainder of the term if he chooses to do so under the conditions of the 
 original lease. In the absence of a covenant to rebuild, the landlord 
 has no right to enter upon the demised premises and take possession 
 to the exclusion of the tenant for the purpose of erecting a new struc- 
 ture, but if the tenant makes no objection to such a proceeding, it 
 would be deemed a license from him to the landlord to enter for the 
 purpose of rebuilding.®^ ^ 
 
 § 406. In California the lessor of a building intended for the oc- 
 cupation of human beings must, in the absence of an agreement to the 
 contrary, put it into a condition fit for such occupation and repair 
 all subsequent dilapidations thereof, which render it untenantable,*'*^ 
 •except that the hirer of a thing must repair all deteriorations or in- 
 juries thereto occasioned by his ordinary negligence.''*^ If within a 
 reasonable time after notice to the lessor, of dilapidations which he 
 ought to repair, he neglects to do so, the lessee may repair the same 
 himself, and deduct the expenses from the rent, or he may vacate the 
 premises and be discharged from further payment of rent.®®" These 
 sections of the code do not by operation of law insert in a lease of a 
 residence a covenant on the part of the landlord to repair but merely 
 make it the duty of the landlord to repair upon notice, and upon his 
 failure to do so, allow the tenant the option to repair to the extent of 
 one month's rent, or to vacate the premises discharged from further 
 liability for rent.*'®^ 
 
 § 407. By statute in Dakota, "^^ ^hich has been reenacted in both 
 North*'®^ and South Dakota,*'*'* the lessor of a building intended for 
 
 "'^Belfour v. Weston, 1 Term R. '^'« Civ. Code, § 1941. 
 
 310; Hare v. Groves, 3 Anstr. 687; "^^ Civ. Code, § 1929. 
 
 Kramer v. Cook, 7 Gray (Mass.) """ Civ. Code, § 1942. 
 
 550; Leavitt v. Fletcher, 10 Allen "=" Green v. Redding, 92 Cal. 548, 
 
 (Mass.) 119, § 675. 28 Pac. 599. 
 
 "'« Holtzapffel v. Baker, 18 Ves. "»= Civ. Code, §§ 1114, 1115. 
 
 115. ""^Civ. Code 1895, §§ 4080, 4081. 
 
 "" Smith V. Kerr, 108 N. Y. 31, 15 ">' Civ. Code 1901, §§ 4926, 4927. 
 N. E. 70. 
 
 Jones L. & T.— 29
 
 § 408] ' COVENANTS IN LEASES. 450 
 
 human habitation must repair all subsequent dilapidations except 
 those caused by the ordinary negligence of the lessee. After lessor's 
 failure to repair on notice, the lessee may repair and deduct the cost 
 from the rent or he may vacate and be relieved from further liability 
 on the lease. These statutes have been construed to apply to dwell- 
 ing houses only, so that a building used and occupied as a retail 
 grocery store would not come within the terms of the act.^^^ 
 
 § 408. A covenant by a lessor to make all necessary repairs on the 
 outside of a building is not a covenant that the outside shall not give 
 
 way but one that, if it does, he will repair it. So he cannot be held 
 liable for damages occasioned by the fall of the building. The neces- 
 sary repairs on the outside are those which will make the building 
 outwardly complete. When those are made, then, and not before, the 
 lessee will be bound by his covenant to make all necessary repairs on 
 the inside. The fact that rebuilding the outside will so far replace the 
 whole building as to leave very little to be done on the inside and thu& 
 make the performance of the lessee's covenant very easy^ does not in 
 any degree excuse the lessor from first performing his covenant.^'"' 
 Where a lessee agreed to make all improvements he should deem neces- 
 sary in a house at his own expense, but all outside and permanent im- 
 provements were to be done at the expense of the lessor, the expense 
 of putting in a heating furnace could not be charged up to the lessor. 
 The furnace not being outside the house the cost of it could not be 
 charged to the lessor and parol evidence varying or explaining the 
 meaning of the lease was properly excluded.*'^^ 
 
 In case a lessor lets a building for a particular purpose and cove- 
 nants to repair it, it is his duty to put it in such a state of repair as 
 the business requires. This duty exists whether the defects existed 
 at the time of the lease, or arose from defects in construction or gen- 
 eral dilapidation.^^^ So by force of an agreement to "keep" in re- 
 pair, if to keep in repair it is necessary that the premises should first 
 be* put in repair, the lessor is bound to perform that duty.*^^" Such a 
 covenant by a lessor usually contains no clause as to the then condi- 
 tion of the premises and no exception of natural wear and natural 
 
 '''^Edmison v. Aslesen, 4 Dak. 145, 88 N. W. 380; Myers v. Burns, 35 
 
 27 N. W. 82. N. Y. 269; Bass v. Rollins, 63 Minn. 
 
 •'""Leavitt v. Fletcher, 10 Allen 226, 65 N. W. 348; Miller v. McCar- 
 
 (Mass.) 119. dell, 19 R. I. 304, 33 Atl. 445. 
 
 «" Smith V. Hess, 83 Iowa 238, 48 ''^^ Myers v. Burns, 35 N. Y. 269; 
 
 N. W. 1030. Payne v. Haine, 16 M. & W. 541. 
 
 «"' Piper V. Fletcher, 115 Iowa 263,
 
 451 FOR REPAIRS. [§' 409 
 
 decay. Good repair and good condition, at all times, is the fair in- 
 tent of the agreement. But after a landlord has performed a cove- 
 nant such as to put fences in repair, the lessee must make any ob- 
 jections to the work at once; if he accepts possession without com- 
 plaint, he is estopped subsequently to claim the repairs were defective 
 and caused damage.'^"" 
 
 Ordinarily a lessor's covenant to repair and to have premises suit- 
 able for occupation for a certain purpose would apply only to the state 
 of physical repair of the premises. But an agreement that premises 
 should be in good condition for comfortable occupation as a court- 
 room was held to be a covenant against disturbance by noise from other 
 tenants in the building.''°^ 
 
 § 409. Requirement of notice to landlord. — The established rule 
 of law in regard to notice which the courts now apply is that "where 
 a party stipulates to do a certain thing in a certain specific event 
 which may become known to him, or with which he can make himself 
 acquainted, he is not entitled to any notice unless he stipulates for it ; 
 but when he is to do a thing which lies within the peculiar knowledge 
 of the opposite party, then notice ought to be given him."'^''- Thus, 
 where the thing to be repaired is a fence and the lessor has not stipu- 
 lated for notice he is not entitled to any. Even if this were not de- 
 cisive, a further clause reserving to the lessor the right to enter on the 
 premises to view and make improvements would be.'^*'^ But where the 
 tenant has secured to himself the right to make the necessary repairs, 
 and to deduct the expense thereof from the rent, he cannot claim any 
 extra compensation by way of damages, especially if he does not al- 
 lege in his answer that he gave notice to the lessor that the j^remises 
 wanted repairs after the commencement of the term.""* In case the 
 lack of repair is on the inside of the house to which the tenant only 
 had access, the landlord cannot be deemed to have broken his engage- 
 ment, or to be in default unless it appear that he neglected to do the 
 thing promised, after notice and lapse of a time sufficient to allow 
 him to repair.'^"" The same rule was applied in a case where a lessor 
 covenanted to repair the outside of a building, the main timbers and 
 
 ■00 Williamson v. Miller, 55 Iowa ™^ Hayden v. Bradley, 6 Gray 
 
 86, 7 N. W. 416. (Mass.) 425. 
 
 ™ Riley v. Pettis County, 96 Mo. ""^ Wolcott v. Sullivan, 6 Paige (N. 
 
 318, 9 S. W. 906. Y.) 117. 
 
 '"Vyse V. Wakefield, 6 M. & W. ™^ Ploen v. Staff, 9 Mo. App. 309; 
 
 442, 453, per Lord Abinger. Walker v. Gilbert, 2 Robt. (N. Y.) 
 
 214, 221.
 
 410] 
 
 COVENAXTS IN LEASES. 
 
 453 
 
 the roof. As to part of these the lessor could have acquired knowledge 
 of the necessity for repairs by observation, but as to the rest he could 
 not ; so there should be imported into the covenant the condition that 
 the lessor shall have notice of the lack of repair before he can be 
 called on under the covenant to make it good.'^*'*' 
 
 § 410. Where a landlord fails to keep his covenant to make ex- 
 terior repairs, a tenant has several remedies. (1) He may abandon 
 premises if they become untenantable by reason of want of repair. 
 
 (2) He may make the repairs and deduct the cost from the rent. 
 
 (3) He may occupy the premises without repair and recoup his dam- 
 ages in an action for the rent. (4) He may sue for damages for 
 breach of the covenant to repair.'^ "^^ Where a lessor fails to perform his 
 covenants to repair, the lessee may hold him to the ordinary responsi- 
 bility of a person failing to keep his contract. A lessee need not make 
 the repairs himself but can recover as damages the difference between 
 the value of the premises in repair and out of repair.'^"* It is well 
 settled that a tenant is not bound to make permanent and important 
 repairs which the landlord has contracted to make, but may recover his 
 damages for the landlord's failure to make them.'^''^ Or if a lessor 
 after notice refuses to perform a covenant to make improvements and 
 repairs, the lessee may make them in accordance with the covenant 
 and charge their reasonable value against the rent."^'' It has also 
 
 '°«Makin v. Watkinson, L. R., 6 
 Exch. 25. In this case Bramwell, 
 B., says: "I think that we are 
 irresistibly driven to say that the 
 parties can not have intended so 
 preposterous a covenant as that the 
 defendant should keep in repair 
 that of which he had no means of 
 ascertaining the condition. The 
 lessee is in possession; he can say 
 to the lessor, 'You shall not come 
 on the premises without lawful 
 cause;' and to come for the purpose 
 of looking into the state of the 
 premises would not be lawful cause. 
 If the lessor comes to repair when 
 no repair is needed he will be a tres- 
 passer; if he does not come, he will, 
 according to the plaintiff's conten- 
 tion, be liable to an action on the 
 covenant, if repair is needed, and 
 will be liable not only to the cost 
 
 of repair but to consequential dam- 
 age for injury to chattels- caused by 
 reason of the repairs he had no op- 
 portunity of effecting." The princi- 
 pal case was approved in Manches- 
 ter &c. Co. V. Carr, L. R., 5 C. P. Div. 
 507. 
 
 "'"" McCardell v. Williams, 19 R. I. 
 701, 36 Atl. 719. 
 
 ™^ Bostwick V. Losey, 67 Mich. 
 554, 35 N. W. 246; Buck v. Rodgers, 
 39 Ind. 222; McCoy v. Oldham, 1 
 Ind. App. 372; Ross v. Stockwell, 19 
 Ind. App. 86, 49 N. E. 50; Green v. 
 Bell, 3 Mo. App. 291; McFarlane v. 
 Pierson, 21 111. App. 566; Hexter v. 
 Knox, 63 N. Y. 561. But see. Cook 
 V. Soule, 56 N. Y. 420. 
 
 •"" Thomson-Houston &c. Co. v. Du- 
 rant &c. Co., 144 N. Y. 34, 39 N. E. 7. 
 
 ™Buck V. Rodgers, 39 Ind. 222; 
 Wright V. Lattin, 38 111. 293; Ross 

 
 453 FOR REPAIRS. [§ 410 
 
 oeen held that a breach of a covenant to repair will justify the ten- 
 ant in abandoning the premises and discharge him from further lia- 
 bility for rent. Although the covenant to pay rent and the covenant 
 to repair are independent, so that the failure of a landlord to repair 
 does not work a forfeiture of the rent/" yet if the landlord fails to 
 repair and in consequence the premises become untenantable, the ten- 
 ant may abandon them and escape liability for rent.'^^^ To warrant 
 an abandonment, however, it must be shown that the premises became 
 untenantable by reason of the landlord's failure to comply with his 
 agreement.' ^^ 
 
 The general rule for the measure of damages for failure to make 
 repairs is the difference in the rental value of the premises with the 
 repairs and the rental value without them."^* In an action by lessee 
 for breach of covenant to repair resulting in damages to furniture and 
 rendering the premises unfit for use as a boarding house, the proper 
 measure of damages is such as will compensate for damage to fur- 
 niture, and the difference between the rental value of the building as 
 it actually was and what it would have been worth if the contemplated 
 repairs had been made.'^^^ Consequential damages may sometimes be 
 recovered but such recovery is confined to the proximate and unavoid- 
 able consequences of the breach of the covenant to repair. The lessee, 
 it is true, cannot wait till the demised premises fall to pieces about 
 his head, and then abandon the premises and sue on his covenant to 
 repair.'^^ But he is not deprived of his right to recover any actual 
 
 v. Stockwell, 19 Ind. App. 86, 49 N. 15 Mont. 236, 38 Pac. 1072; Piper v. 
 
 E. 50; Hexter v. Knox, 63 N. Y. 561; Fletcher, 115 Iowa 263, 88 N. W. 380. 
 
 Cook v. Soule, 56 N. Y. 420; Beards- '"Thomson-Houston &c. Co. v. 
 
 ley v. Morrison, 18 Utah 478, 56 Pac. Durant &c. Co., 144 N. Y. 34, 39 N. 
 
 303; Cheuvront v. Bee, 44 W. Va. E. 7; Taylor v. Lehman, 17 Ind. 
 
 103, 28 S. E. 751; Orton v. Noonan, App. 585, 46 N. E. 84, 47 N. E. 230. 
 
 30 Wis. 611; McFarlane v. Pierson, In Vivian v. Champion, 2 Ld. Raym. 
 
 21 111. App. 566. 1125, it was said that the proper 
 
 '"Young v. Burhans, 80 Wis. 438, measure of damages in a breach of 
 
 50 N. W. 348. such covenants was what it would 
 
 "- Pierce v. Joldersma, 91 Mich, cost to put the premises in repair. 
 
 463, 51 N. W. 1116; Bissell v. Lloyd, This rule appears to have been 
 
 100 111. 214; Lewis v. Chisholm, 68 modified in some modern cases on 
 
 Ga. 40; Piper v. Fletcher, 115 Iowa covenants for repairs. Fisher v. 
 
 263, 88 N. W. 380; Bostwick v. Goebel, 40 Mo. 475. 
 
 Losey, 67 Mich. 554, 35 N. W. 343. ''^Kohne v. White, 12 Wash. 199, 
 
 "'Prescott v. Otterstatter, 85 Pa. 40 Pac. 794. 
 
 St. 534; Moore v. Gardiner, 161 Pa. ™ Thompson v. Shattuck, 2 Mete. 
 
 St. 175, 28 Atl. 1018; Blake v. Dick, (Mass.) 615; Fisher v. Goebel, 40 
 
 Mo. 475.
 
 § 411] COVENANTS IN LEASES. 454 
 
 damage he may have sustained by the dilapidation of the leased 
 building merely because he did not himself repair as soon as the de- 
 cay or dilapidation became dangerous. The damages must not be re- 
 mote or speculative. '^^^ Hence it has been held that indirect and conse- 
 quential damages flowing from some failure to repair, such as the 
 destruction of crops by the trespasses of cattle, cannot be recovered 
 from the lessor.'^^^ The correct rule in most cases would be that if 
 a lessee took possession with a fence down, it was his right and duty 
 to rebuild the fence and that the full extent of his damages could not 
 exceed the necessary cost of rebuilding. Yet this would not apply 
 where the lessor refused to rebuild a fence or to allow the lessee to re- 
 build it. A man cannot forbid the doing of a thing and then insist 
 that his rights are to be predicated upon the result of a disregard of 
 his instruction.'^ ^^ So a tenant cannot recover damages for loss of 
 trade resulting from a breach of lessor's covenant to repair.'^ ^^ 
 
 In assessing damages, certainty, as far as the nature of the case 
 will admit of, is to be aimed at and ascertained; mere speculative 
 injuries, depending on uncertain future contingencies, afford no 
 ground for damages,'^^ But in an action during the term by a ten- 
 ant against his landlord for breach of a covenant to repair, the ten- 
 ant may recover damages for the whole leasehold estate.'^^^ So where 
 an action brought during the term was tried after the lease expired, it 
 was held that the Jury could consider all the consequences of the re- 
 fusal to repair, those subsequent as well as those prior to the institu- 
 tion of the suit, thus settling all questions of damages arising from the 
 breach of the covenant assigned in the declaration.'^^^ 
 
 IX. To Pay Taxes. 
 
 § 411. A covenant to pay taxes, like one to pay rent, is an under- 
 taking to do something in respect to the land itself and therefore 
 runs with the land and binds an assignee of the leasehold estate."* 
 
 '"Green v. Bell, 3 Mo. App. 291; '-Cohen v. Habenicht, 14 Rich. 
 
 Loker v. Damon, 17 Pick. (Mass.) Eq. (S. Car.) 31. 
 
 284, 288. '^ Cooke v. England, 27 Md. 14. 
 
 "^Varner V. Rice, 39 Ark. 344. "^ Ellis v. Bradbury, 75 Cal. 234, 
 
 "'Park V. Ensign, 10 Kan. App. 17 Pac. 3; Mason v. Smith, 131 Mass. 
 
 173, 63 Pac. 280. 510; Wills v. Summers, 45 Minn. 
 
 "» MiddlekaufE v. Smith, 1 Md. 90. 47 N. W. 463; Post v. Kearney, 
 
 329. 2 N. Y. 394, 51 Am. Dec. 303; West 
 
 '^ Cooke V. England, 27 Md. 14. Virginia &c. R. Co. v. Mclntire, 44
 
 455 TO PAY TAXES. [§ 411 
 
 Purthermore such a covenant is divisible in case of an assignment of 
 a part of the lease. And the assignee of a portion would be liable to 
 pay taxes in proportion to the extent of the premises assigned to 
 him."^ That a lessee can recover from his assignee, and also from a 
 second assignee, the taxes accruing during their terms respectively, 
 and which the lessee has been obliged through their default to pay to 
 the lessor is well settled.'^^^ But after a second assignment, the origi- 
 nal lessee cannot recover from the first assignee those taxes which he 
 has been obliged to pay the lessor.^" In order that the covenant 
 shall run with the land it is only necessary that the payments which 
 it covers shall be made in respect to the land and it is not essential 
 that it shall be to pay yearly taxes. So a covenant by the lessee, in a 
 lease under seal, to pay all costs, charges and expenses, except the 
 yearly taxes, is a covenant running with the land, and binding on an 
 assignee. '^^* 
 
 On an assignment of the reversion by warranty deed, the assignee 
 can enforce the lessee's covenant to pay taxes. Although the convey- 
 ance expressly excepts the grantor from liability for taxes, such ex- 
 ception will not prevent a transfer of the right to the grantee to com- 
 pel the lessee to pay the taxes according to his covenant. The excep- 
 tion is no more than a refusal by the grantor to covenant that the 
 lessee would perform his covenant. '^2® But a stranger to the lease 
 cannot take advantage of a covenant by the lessee to pay taxes. Thus 
 it was held that an assessment for the construction of a sewer could 
 not be personally enforced against the lessee by a municipality, though 
 the lessee covenanted in his lease to pay all assessments upon the 
 property demised.'^^'* 
 
 In general the obligation of the lessee to pay taxes does not make 
 them a part of the rent reserved. Eent has a fixed legal meaning, 
 and to consider all payments which, by the terms of a lease, a tenant 
 is bound to make, as coming within its definition, would lead to a 
 confusion of ideas without necessity or advantage. It may be said 
 that the payment of taxes is part of the return made by a tenant to 
 
 W. Va. 210, 28 S. E. 696; Huddell, in & C. 589; Moule v. Garrett, L. R., 5 
 
 re, 16 Fed. 373; Hendrix v. Dickson, Excli. 132. 
 
 69 Mo. App. 197; Washington Gas '=" Mason v. Smith, 131 Mass. 510. 
 
 Co. V. Johnson, 123 Pa. St. 576, 16 "' Torrey v. Wallis, 3 Gush. 
 
 Atl. 799, 10 Am. St. 563, § 328. (Mass.) 442. 
 
 '^ Ellis V. Bradbury, 75 Cal. 234, '=« Hendrix v. Dickson, 69 Mo. App. 
 
 17 Pac. 3. 197. 
 
 '=* Patten v. Deshon, 1 Gray "" Davis v. Cincinnati, 36 Ohio St. 
 
 (Mass.) 325; Burnett v. Lynch, 5 B. 24.
 
 §' 412] COVENANTS IN LEASES. 45& 
 
 his landlord for the use of the property and, therefore, properly comes, 
 under the definition of rent. But in one sense tlie performance of 
 every covenant on the part of the lessee is a return made by the ten- 
 ant for the use of the land. Yet it would hardly be contended that 
 money sti^^ulated to be expended in repairs or for insurance, or in 
 the way of improvements was any portion of the rent. Taxes, being 
 payable annually, approach, it is true, to the idea and character of 
 rent which is a certain yearly return reserved to the landlord in 
 money, or kind, or service for the enjoyment of the freehold ; but they 
 are distinguishable from rent in this, that they are uncertain both as 
 to amount and time of payment, and are payable, not to the landlord, 
 but to the government, and are imposed for the benefit of the public, 
 and the landlord may, by the terms of his agreement with the tenant, 
 be relieved from their payment; taxes are not, on that account, any 
 more rent than the expenditure of money for insurance, under a cove- 
 nant to that effect on the part of the lessee.'^^^ The expressions some- 
 times used by a court in determining what taxes are included in the 
 lessee's covenant, that taxes are payable as part of the rent, mean only 
 that they are paid as part of the consideration for the use of the land, 
 and not that they are technically rent.'^^- However it has been held 
 that a lessee's general undertaking to pay taxes made them payable as 
 part of the rent so that the lessor was entitled to a lien to that extent, 
 giving him priority over other creditors of the lessee.''^^ 
 
 § 412. The general rule in regard to leases for years is that where 
 the lease is silent on the subject, the landlord is bound to pay all 
 state and municipal taxes and assessments on the property during the 
 term.^^* However in the case of a lease for ninety-nine years with a 
 
 ^^ Garner v. Hannah, 6 Duer (N. Memphis, 8 Heisk. (Tenn.) 845; 
 
 Y.) 262, 266, in the words of Slos- Connell v. Female &c. Asylum, 18 
 
 son, J. La. Ann. 513; Moffat v. Henderson, 
 
 "^Elliot V. Gantt, 64 Mo. App. 50 N. Y. Super. Ct. 211; Sheldon v. 
 
 248; McManus v. Fair Shoe &c. Co., Hamilton, 22 R. I. 230, 47 Atl. 316; 
 
 60 Mo. App. 216. Philadelphia &c. R. Co. v. Appeal 
 
 ™Gedge v. Shoenberger, 83 Ky. Tax Court, 50 Md. 397; Leach v. 
 
 91. Goode, 19 Mo. 501; People v. Bark- 
 
 "* Bettison v. Budd, 17 Ark. 546, er, 153 N. Y. 98, 47 N. E. 31, affirm- 
 
 65 Am. Dec. 442; Sargent v. Pray, ing, 15 App. Div. 628; Anderson v. 
 
 117 Mass. 267; Weichselbaum v. Cur- Harwood, 47 Mo. App. 660; Graham 
 
 lett, 20 Kan. 709, 27 Am. R. 204; v. Wade, 16 East 29; Townshend v. 
 
 Western &c. R. Co. v. State, 54 Ga. Stangroom, 6 Ves. 333; Greaves v. 
 
 428; Kitchen v. Smith, 101 Pa. St. Ashlin, 3 Campb. 426; Dove v. Dove, 
 
 452; Turley &c. Inst. v. City of 18 U. C. C. P. 424. 
 
 I
 
 457 TO PAY TAXES. [§ 413 
 
 covenant for perpetual renewal, it was held that the lessee was bound 
 to pay taxes. The arguments of counsel which were evidently adopted 
 bv the court were that the lessee had covenanted absolutely to pay rent 
 without deduction of any kind and that a covenant was to be con- 
 strued most strongly against the covenantor. Furthermore as the 
 lessor had expressly covenanted for quiet enjoyment, no further cove- 
 nants could be raised by implication against him. The consequent 
 hardships on the landlord was also used as an argument for imposing 
 the liability on the tenant."^ 
 
 If a tenant erects buildings which by the terms of the lease remain 
 his property, the landlord is not bound to pay taxes on such improve- 
 ments but the tenant must pay them."** A provision in a lease giving 
 the lessee the right to remove buildings erected by him on the leased 
 premises, makes such buildings personal property taxable to the 
 lessee.'^^^ If the right to remove buildings is reserved to the lessee in 
 a lease, then, in such case, he will be regarded as an owner of the 
 property for the purpose of taxation. But some sort of agreement is 
 necessary to prevent the operation of the rule that structures become 
 a part of the realty upon which they are erected."^ A provision that 
 buildings erected on the premises shall become the property of the 
 lessor at the end of the term does not make the lessee the owner dur- 
 ing the term but merely negatives the possibility of a power of re- 
 moval in the lessee.'^^^ The test is who really owns the structures. A 
 shed, erected by a lessee on a pier leased from a city, was by the pro- 
 visions of the lease to become the property of the city on the expira- 
 tion of the lease. As the shed was affixed to the realty, it became the 
 property of the city immediately and could not be assessed for taxa- 
 tion against the lessee.^**' Yet a tenant would be liable to pay taxes 
 on a house standing on the demised premises which was owTied by him 
 even though the lessor's interests were exempt from taxation.'^'*^ How- 
 ever, a covenant by a lessee to pay taxes does not bind him to pay 
 those from which the landlord would be exempt. '*- 
 
 "^ Hughes v. Young, 5 Gill & J. pay taxes on the improvements, and 
 
 (Md.) 67. the lessor was only liable for the 
 
 ™ Leach v. Goode, 19 Mo. 501; taxes levied at the original valua- 
 
 Luttrell V. Knox County, 89 Tenn. tion. Smith v. Humble, 15 C. B. 
 
 253, 14 S. W. 802. 321, 80 E. C. L. 321. 
 
 "'East Tennessee &c. R. Co. v. ""People v. Barker, 153 N. Y. 08, 
 
 Mayor &c. (Tenn.), 35 S. W. 771. 47 N. E. 31. 
 
 ™ People V. Commissioners &c., 80 '" Parker v. Redfield, 10 Conn. 
 
 N. Y. 573. 490. 
 
 ™So in an English case where "<- Philadelphia &c. R. Co. v. Ap- 
 
 there was a building lease it was peal Tax Court, 50 Md. 397. 
 held that the lessee was bound to
 
 413] 
 
 COVENANTS IN LEASES. 
 
 458 
 
 § 413. In many jurisdictions it has by statute been made the duty 
 of the tenant holding any leasehold estate to pay the taxes levied on 
 the demised premises. But the tenant so paying has been given his 
 right of action to recover such money of the landlord, as money paid 
 for his use or the right to deduct the same from the rent reserved, 
 unless otherwise agreed. This provision was intended as a means of 
 facilitating the collection of taxes, tliere being many cases where the 
 landlord might not be known or might be absent."*^ Ordinarily, one 
 who voluntarily pays the debt of another cannot recover the sum paid, 
 but taxes paid by the tenant are not a voluntary payment."*^" The 
 land itself is, in fact, the debtor to the public, and prima facie it is 
 the tenant's tax, because all the remedies are against him.'*^ If 
 the tenant pays the taxes without any compulsion in pursuance of a 
 previous invalid undertaking on his part, it will be regarded as a 
 voluntary payment and cannot be recovered back from the landlord.^*® 
 If there be a special contract that the lessee shall deduct from 
 the rental all taxes levied, or to be le\aed upon the leased property, 
 such a contract would unquestionably be good and in case the lessee 
 were granisheed, he would be entitled to his discharge, even though at 
 the time of the trial the liability was still undetermined and contin- 
 gent.'^*'^ A special agreement of this nature, entitling the lessee to 
 deduct from the rent amounts paid as taxes was not invalidated by the 
 
 '« Philadelphia &c. R. Co. v. Ap- 
 peal Tax Court, 50 Md. 397; Cald- 
 well v. Moore, 11 Pa. St. 58; Kitchen 
 V. Smith, 101 Pa. St. 452. In the 
 last citation the doctrine was applied 
 in the case of an oil lease. In Eng- 
 land a local act provided that a 
 drainage tax should he paid by ten- 
 ants, who might deduct and retain 
 the same out of the rents, and it 
 was also provided that the tax 
 might be levied by distress on the 
 goods and chattels on the premises. 
 The meaning of this act was to 
 make the tax payable by the tenant 
 in whose time it became due. If 
 such tenant was not called upon to 
 pay it till after the rent had been 
 paid, he had the right to require 
 the landlord to reimburse him. 
 Dawson v. Linton, 5 B. & Aid. 521, 
 7 E. C. L. 285. The right to re- 
 
 duce rent by the amounts paid by 
 the tenant as taxes had previously 
 been recognized in Stubbs v. Par- 
 sons, 3 B. & Aid. 516. But in Saun- 
 derson v. Hanson, 3 C. & P. 314, it 
 was said that back taxes could not 
 be recovered by the tenant if he had 
 gone on paying the full amount of 
 rent with no deduction. 
 
 '" Carter v. Carter, 5 Bing. 406. 
 
 '*' Walker v. Harrison, 75 Miss. 
 665, 23 So. 392. 
 
 ■« McAnany v. Tickell, 23 U. C. Q. 
 B. 499. 
 
 "' McPherson v. Atlantic &c. R. 
 Co., 66 Mo. 103; St. Louis v. Regen- 
 fuss, 28 Wis. 144; Thompson v. 
 Fischesser, 45 Ga. 369; Wheelock v. 
 Tuttle, 10 Cush. (Mass.) 123; 
 Shearer v. Handy, 22 Pick. (Mass.) 
 417.
 
 459 TO PAY TAXES. [§ 414 
 
 English statutory provision'^ *^ forbidding any agreement which would 
 throw the burden of taxation on the tenant. Such an agreement does 
 not come within the mischief to be guarded against. There is nothing 
 in the statute to invalidate an agreement by the landlord to repay the 
 amount if the tenant will refrain from insisting on the deduction from 
 the rent.''*® Furthermore the lessee might be enabled to recover back 
 from the lessor sums paid as taxes, even though the taxes could not 
 be assessed as a personal obligation or liability of the lessee. If to 
 save the leased premises from sale and to prevent his consequent evic- 
 tion therefrom, the lessee should pay the taxes, it cannot be doubted 
 but that, without any express agreement in the lease, he could with- 
 hold it from the rent or maintain assumpsit to recover it from the 
 lessor.''^" 
 
 When the lease is for life, however, the general equitable principle 
 which apportions the charges upon real estate ratably places the bur- 
 den on the tenant to keep down the taxes and to keep the premises in 
 repair. This obligation on the life tenant does not rest in covenant, 
 express or implied, but in equity, and exists as an incident of the es- 
 tate. When one contracts for a life estate he must be presumed to 
 contract with reference to the incidents thereto attached. The reser- 
 vation of rent does not change the nature of the estate nor create an 
 equity in favor of the tenant for life."^ This obligation resting on 
 a tenant for life would pass to an assignee upon an assignment of the 
 term and it is the duty of such assignee to pay all taxes assessed dur- 
 ing his tenancy. If he neglects it and suffers the land to be sold for 
 the taxes, he can acquire no right to the estate against the owner of 
 the fee by buying in the tax title. "^ 
 
 § 414. The price charged for water by a city is not a tax or assess- 
 ment chargeable upon the premises which the tenant being compelled 
 to pay may recover from the landlord ; but is a commodity which the 
 tenant may take or decline at his option. The price charged for it is 
 not a tax any more than the price charged for gas, electricity, steam, 
 
 '" 5 & 6 Vict., c. 35, § 103. ""•- Prettyman v. Walston, 34 111. 
 
 "*Lamb v. Brewster, 4 Q. B. D. 175, 190; Varney v. Stevens, 22 Me. 
 
 220. 331; Hughes v. Young, 5 Gill & J. 
 
 '^"McPherson v. Atlantic &c. R. (Md.) 67; Cairns v. Chabert, 3 Edw. 
 Co., 66 Mo. 103; Wells v. Porter, 7 Ch. (N. Y.) 312; Burhans v. Van 
 
 Wend. (N. Y.) 120; Hammon v. Zandt, 3 Seld. (N. Y.) 523; Trustees 
 
 Sexton, 69 Ind. 37. of Elmira v. Dunn, 22 Barb. (N. 
 
 '"Carter v. Youngs, 42 N. Y. Y.) 402. 
 Super. Ct. 418.
 
 § 414] COVENANTS IN LEASES. 460 
 
 or coal, some of which are as necessary commodities as water, Nor 
 does the fact that the city supplies water and a private corporation 
 supplies gas make one a tax rather than the other.''^^ The city has no 
 lien on the premises for the payment of water bills, and so the charge 
 is not an incumbrance which the tenant is presumed to pay on account 
 of the landlord. '^^* In the absence of agreement, a landlord is not 
 bound to pay tax rates for city water used by the tenant though the 
 house is piped therefor. The landlord is under no greater obligation 
 than he would be to pay for gas, because the house demised is piped 
 for gas.'^^^ The lessee cannot recover amounts paid on this account 
 without showing in some way that the lessor was liable for the water 
 rates. No agreement to pay them could be implied because the water 
 was essential to the premises for the purpose for which they were 
 leased. It can hardly be said that the landlord impliedly agrees to 
 pay for whatever is essential to the use of the premises which he 
 leases.^^^ But it does not necessarily follow in every instance that a 
 lessor who has paid water rates can recover them back from the lessee. 
 It may have been the understanding that the lessor should furnish 
 the water gratuitously or that it should be supplied to the lessee as an 
 appurtenance of the leased premises. Such seems to have been the 
 case where the water was furnished at the request of the lessor, and 
 he had in prior years paid for it.'^^^ 
 
 However the rule seems to be different when the water rent is made 
 a lien on the premises. In a case holding the lessor was liable to pay 
 water rates, the court enumerated the points of similarity to a tax 
 as follows : "It will thus be seen that these rents possess many of the 
 essential elements of a tax ; they are general and annual, and imposed 
 for a public purpose, and from the time of their imposition they be- 
 come both 'ordinary and yearly' burdens; they constitute a lien on 
 the property and are collectible in the same manner as ordinary taxes.'* 
 The conclusion of the court is that such water rents may fairly be 
 considered as within the term "taxes" so as to be included in the ten- 
 ant's covenant to pay all taxes.'' ^^ It is obviously possible for a mu- 
 nicipal corporation which goes into the business of supplying its mem- 
 
 ™ Sheldon v. Hamilton, 22 R. I. ''^^ McCarty v. Humphrey, 105 Iowa 
 
 230, 47 Atl. 316; Badcock v. Hunt, 535, 75 N. W. 314. 
 
 22 Q. B. D. 145. '''^ Leighton v. Ricker, 173 Mass. 
 
 "^ Turner v. Revere Water Co., 564, 54 N. E. 254. 
 
 171 Mass. 329, 50 N. E. 634; Leigh- ^" Jamesin v. Thomen, 24 Cinn. L. 
 
 ton V. Ricker, 173 Mass. 564, 54 N. B. (Ohio) 334. 
 
 E. 254; Sheldon v. Hamilton, 22 R. '-'Garner v. Hannah, 6 Duer (N. 
 
 I. 230, 47 Atl. 316. Y.) 262.
 
 461 TO PAY TAXES. [§ 414 
 
 bers with water, to defray tlie expense of such undertaking by a tax 
 levied according to valuation of real estate, street frontage or in some 
 other manner. Where this mode is adopted, the charge for water 
 would be a tax and in the absence of agreement would fall upon the 
 lessor.'''^ But even where the expense of maintaining a waterworks 
 system is in part defrayed by the levy of a special tax, there is no 
 reason why in some instances the water should not be measured off by 
 a meter and sold as a commodity. The landlord might be liable for 
 the usual and ordinary water rates which were assessed according to 
 the frontage of the building, and yet be under no implied obligation 
 to pay for the extraordinary use of water in large quantities. It 
 cannot be contended that there is any implied obligation on the part 
 of the landlord to pay for extra water used for the exclusive benefit 
 of the tenant.'^^° Where a lessee had covenanted to pay the regular 
 water rates, there would seem to be even greater reason for making 
 him pay for extra water, measured off by a meter and used in relation 
 to his business. But the court held the contrary, on the ground that 
 there was nothing in the statutes making the actual consumer of the 
 extra water personally liable for the meter-rates.'*'^ 
 
 All doubt as to the responsibility for water bills may be settled 
 by a covenant in the lease that the lessee undertakes to pay them. 
 Such a covenant is not to be regarded as a mere declaration as to who 
 is to pay for the gas and water furnished on the premises. There is 
 no ambiguity as to whom the water rates are to be paid to. They 
 are payable to the company furnishing the water. So when a tenant 
 covenants to pay water rates or gas bills, it is as much a condition of 
 his holding as any other covenant in the lease. '^*'- 
 
 ^* Williams v. Kent, 67 Md. 350, 10 question appears to me to be wheth- 
 
 Atl. 228; Darcey v. Steger, 23 Misc. er this water rate can be said to be 
 
 (N. Y.) 145; Moffat v. Henderson, a rate or imposition 'imposed' 
 
 50 N. Y. Super. Ct. 211. within the meaning of those words. 
 
 ™ Williams v. Kent, 67 Md. 350, I do not think that it can. I do not 
 
 10 Atl. 228. think that a charge can be said to 
 
 '" Moffat v. Henderson, 50 N. Y. be imposed upon him within the 
 
 Super. Ct. 211. meaning of this covenant. If a man 
 
 "'-Hand v. Suravitz, 148 Pa. St. buys things in a shop, the liability 
 202, 23 Atl. 1117. In Badcock v. to pay the price may be said in one 
 Hunt, 22 Q. B. D. 145, the lessor sense to be imposed on him by law, 
 covenanted to pay "all rates, taxes but that is not, in my opinion, the 
 and impositions whatsoever, wheth- sense in which the terms imposed 
 er parliamentary, parochial or im- and imposition are used in this 
 posed by the corporation of the city covenant. Furthermore, I think 
 of London, or otherwise howso- the words 'imposed otherwise how- 
 ever." Lord Esher said: "The soever' must be construed agreeably
 
 §■ 415] COVENANTS IN LEASES. 46^ 
 
 § 415. The intention of the parties, as shown by the language of 
 the instrument, determines what taxes, burdens and assessments are 
 to be borne by the lessee. In the early English cases the distinction 
 was made between an entirely new kind of tax and the fresh levy of 
 a tax which had been previously imposed. A lessee's covenant would 
 not oblige him to pay a new tax ; it must be understood of such taxes 
 as were then in use.'^®^ Still the language of the covenant might be 
 such as to provide for the payment of a tax of an entirely new kind.''^* 
 Moreover a covenant in the ordinary form was held to bind the lessee 
 to pay all land taxes whatsoever, although there was no land tax at 
 the time and it was ordered long after the making of the covenant. 
 And the reason was because the land tax was known and understood, 
 and was to be levied as occasion required.'' ^^ The rule recognized 
 and adopted in these cases is, that if the tax or assessment be made 
 under a law existing at the time of the covenant, it is within such 
 covenant; or if there be no law existing at the time authorizing or 
 requiring it, but it is afterward enacted, still if the assessment or tax 
 be of the same kind with taxes or assessments made under former 
 acts, it is presumed to have been in the contemplation of the parties 
 as a tax in viris though not in esse. But if such tax or assessment be 
 different in kind from such as have been heretofore in esse, it is not to 
 be presumed that the parties contemplated any unusual exercise of 
 power in the legislature, such as it had never before exercised. These 
 principles were applied by the Supreme Court of Ehode Island in 
 1859 to a betterment assessment for laying, widening and altering 
 highways. The court say: "In looking back to past legislation, we 
 look in vain for any taxes or assessments made upon any principle for 
 any similar purpose. . . . In no case either for highway or other 
 public improvements, have lands been taxed for the value added 
 thereto by the public improvement. This is certainly a departure 
 from any known mode or purpose of assessments. So novel and ex- 
 traordinary did the provisions of this act appear when it went into 
 effect, that it was seriously and earnestly denied to be within the con- 
 stitutional power of the legislature to enact it. . . . We are of 
 
 to the rule of construction applica- "^ Davenant v. Bishop of Sarum, 
 
 ble when general words follow spe- 2 Lev. 68; Brewster v. Kidgill, 12 
 
 cific words, and that therefore they Mod. 166; Hopwood v. Barefoot, 11 
 
 can only include rates or imposi- Mod. 238. 
 
 tions imposed in a similar manner ^"^^ Hopwood v. Barefoot, 11 Mod. 
 
 to parliamentary and parochial 238. 
 
 rates, viz., imposed compulsorily ™ Giles v. Hooper, Carthew 135; 
 
 upon the person charged." Bradbury v. Wright, 2 Doug. 624. 
 
 II
 
 463 TO PAY TAXES, [§415 
 
 opinion that this assessment was not within the defendant's cove- 
 nant."^«« 
 
 However true and forcible these Arguments were at the time they 
 were made, the levying of special assessments to pay for betterments 
 has since then become so familiar a practice that they would have no 
 application at the present day. So a lessee's general covenant to pay 
 taxes, duties, etc., may bind him to pay special assessments levied on 
 the property for betterments.'^^^ The question then becomes one as 
 to intention; whether the language used indicates an intent that he 
 shall be bound to pay this kind of burden. 
 
 While in a general sense the word "taxes" includes special assess- 
 ments, yet there is a clear distinction between the two ; special assess- 
 ments are a peculiar class of taxes which are laid upon the property 
 benefited according to some equitable rule, while taxes, as generally 
 understood, mean the burdens imposed by the government to defray 
 its expenses. A promise to pay taxes does not apply to a special as- 
 sessment for the construction of a sewer. '^''^ A covenant to pay "all 
 taxes or duties levied, or to be levied," does not include a special tax 
 for paving a sidewalk. "^^ A private assessment for paving a street is 
 not a tax or public due of any kind within the meaning of the cove- 
 nants in a lease.'^'^*' And conversely, in conformity with a statutory dis- 
 tinction as to terms, it has been held that a condition in a lease that the 
 lessee shall "pay all assessments whatsoever levied on said premises," 
 does not bind him to pay state, city or county taxes for general pur- 
 poses.''''^ But a general covenant to pay taxes and assessments of any 
 kind bound a lessee with a twenty-year term to pay a betterment as- 
 sessment for altering a street.''^- A covenant by a lessee to pay special 
 taxes prima facie includes an assessment for street improvements.'''^ 
 And an agreement to pay all taxes, charges and impositions was held 
 to bind a lessee to pay a special assessment.'"* So a lessee was held 
 liable to pay a special assessment for a betterment where he cove- 
 
 ™ Love V. Howard, 6 R. I. 116, ""* Twycross v. Fitchburg R. Co., 
 
 125, per Brayton, J. 10 Gray (Mass.) 293. 
 
 '*" Blake v. Baker, 115 Mass. 188; '•» Boiling v. Stokes, 2 Leigh (Va.) 
 
 Curtis V. Pierce, 115 Mass. 186; Si- 178. 
 
 mondg v. Turner, 120 Mass. 328. "^ Stephani v. Catholic Bishop, 2 
 
 "' Ittner v. Robinson, 35 Neb. 133, 111. App. 249. 
 
 52 N. W. 846; De Clercq v. Barber '" Codman v. Johnson, 104 Mass. 
 
 &c. Co., 167 111. 215, 47 N. E. 367, 491. 
 
 affirming 66 111. App. 596; Mayor '"Lucas v. McCann, 50 Mo. App. 
 
 &c.. Matter of, 11 Johns. (N. Y.) 638. 
 
 77; Bleecker v. Ballou, 3 Wend. (N. "^ Bleecker v. Ballou, 3 Wend. (N. 
 
 Y.) 263. Y.) 263.
 
 § 416] COYEXAXTS IX LEASES. 464 
 
 nanted to pay "all taxes, assessments, impositions and payments, pay- 
 able out of and for the demised premises."^^^ The same result was 
 reached where the agreement included "all and singular the taxes, 
 rates, charges and assessments which shall or may from time to time 
 and at any time be levied, assessed or made on the demised premises, 
 or in respect of the same, for or on account of any matter or cause 
 whatever.""^ 
 
 Where a lease contained covenants that the lessee should pay all as- 
 sessments for paving, flagging or repairing the streets but that im- 
 provements of a public character or for permanent improvements 
 should be paid by the lessor, it was held that the substitution of 
 granite blocks for cobble stones was a permanent improvement and 
 the cost of it must be borne by the lessor.""" 
 
 A general covenant by a lessee to pay all taxes does not bind him 
 to pay a license fee which is charged against the lessor in respect to 
 its corporate franchise. To hold that the act imposed a tax on fran- 
 chises would be to declare it in contravention to the constitution of the 
 state and would destroy the act itself. '^^^ 
 
 § 416. If a lessee of a part of a building covenants with the lessor 
 that he will pay the taxes which may be payable or assessed in re- 
 spect to the premises, the landlord may prove a usage to apportion 
 taxes among different tenants according to the amount of rent paid 
 by each.'^'^'* The Massachusetts Court said on this question : "Though 
 an estate is leased to several independent tenants, taxes are uniformly 
 assessed against the whole estate. The covenant of each tenant to 
 pay taxes cannot be construed to mean the taxes upon the whole es- 
 tate. From the nature of the case some mode of apportioning the 
 whole tax must be contemplated by the parties. The usage to appor- 
 tion it in proportion to the rents paid by the tenants is a convenient 
 and reasonable usage, and in the absence of any express stipulation 
 upon the subject, the parties must be deemed to have contracted in 
 reference to it." In reply to the argument that separate assessments 
 should be made, the same court said in another case: "The precise 
 sum could not be fixed in the lease, because it would necessarily be 
 
 ''^ Mayor &c. v. Cashman, 10 ••' Ten Eyck v. Rector &c., 20 N. 
 
 Johns. (N. Y.) 96; Davenant v. Y. S. 157, 65 Hun 194. 
 
 Bishop of Sarum, 2 Lev. 68, 1 Vent. "' Jersey City &c. Co. v. United 
 
 223; Brewster v. Kitchin, 1 Ld. Gas. Imp. Co., 46 Fed. 264. 
 
 Raym. 317, 1 Salk. 198. '"^Amory v. Melvin, 112 Mass. 83; 
 
 "« Walker v. Whittemore, 112 Codman v. Hall, 9 Allen (Mass.) 
 
 Mass. 187. 335. 

 
 465 TO PAY TAXES. [§ 417 
 
 uncertain and might vary from year to year. ISTor could the mode of 
 apportionment be well made to depend on the act of the assessors of 
 the city. They were not obliged to regard the special agreements of 
 individuals as to the mode of assessing or apportioning taxes on their 
 property. The plaintiffs had no power to compel a separate assess- 
 ment of different parts of the same estate belonging to them."^®'' 
 
 However there is an Illinois case holding that in the absence of such 
 usage a clause in a lease that the tenant shall pay all water rents 
 taxed, levied or charged on the demised premises during the term does 
 not apply to one of several tenants of a building or block where the 
 water tax assessment is in bulk against the entire block.'^*^ 
 
 § 417. Levy distinguished from assessment. — The word '^evy" is 
 synonymous with "collect" or "raise by collection" and is entirely 
 distinct from "assess." "Levy" and "assess" are not convertible terms 
 as applied to taxation ; to assess a tax is to declare it payable ; to levy 
 it is to collect it.^^^ So the words of the covenant are to be looked to 
 in determining whether a lessee is bound for taxes assessed during the 
 term or only for those actually levied during that time. A general 
 covenant on the part of a lessee to pay taxes during his lease binds 
 him to pay those which were assessed during the term but which did 
 not become payable till after it terminated.'^*^ The promise contained 
 in such a covenant is not to pay the taxes and assessments which shall 
 or may be payable during the term, but those which may be payable 
 for or in respect of the premises during the term, at whatever period 
 of time they shall become or be payable. It is plain that the parties 
 did not contemplate or intend the assumption, on the part of the 
 lessee, of any liability to pay those taxes which had been assessed and 
 made chargeable upon the estate anterior to the commencement of the 
 
 ^^Wall V. Hinds, 4 Gray (Mass.) the collector. Valle v. Fargo, 1 Mo. 
 
 256, 267, per Blgelow, J. App. 344." The principal case also 
 
 '"Kingsbury v. Powers, 131 111. defines the word "laid" when used 
 
 182, 22 N. E. 479. in regard to the imposing of a tax, 
 
 "-Valle v. Fargo, 1 Mo. App. 344. and holds that it is equivalent to 
 
 In Elliot v. Gantt, 64 Mo. App. 248, assess. 
 
 Biggs, J., says: "The word levy as '« Blythe v. Gately, 51 Cal. 236; 
 used in the revenue law has been Salisbury v. Shirley, 53 Cal. 461; 
 construed by this court to be Henry v. Chrisinger, 76 Iowa 126, 
 synonymous with the word collect, 40 N. W. 121; Wilkinson v. Libbey, 
 and it has been held that a tax can 1 Allen (Mass.) 375; Craig v. Sum- 
 not be said to be levied until the mers, 47 Minn. 189, 49 N. W. 742; 
 books are placed in the hands of Elliot v. Gantt, 64 Mo. App. 248. 
 
 Jones L. & T.— 30
 
 § 417] COVENANTS IN LEASES. 466 
 
 term, and which should become and be due and payable during its 
 continuance.'^** A general covenant by a tenant to pay all taxes levied 
 on the premises during the term does not extend to general taxes 
 which are payable during the term, but were assessed before the term 
 began and were therefore a lien on the property when the term began, 
 and were levied for a period wholly anterior to it.''*^ However, in a 
 case where the certificate issued and the amount of the tax was in- 
 serted in the assessment roll during the term, a lessee was held on 
 his covenant to pay taxes, even though the tax was to raise money for 
 paving done before the term began. The lien accrued and the assess- 
 ment was made during the term; and the language of the covenant 
 was that the defendants were "to pay all taxes and assessments levied 
 or assessed thereon during said term."^®^ 
 
 A covenant to pay all taxes assessed during a term renders the lessee 
 under obligation to pay taxes assessed at the beginning of a fiscal year,, 
 although the lease terminates in the middle of the year. A clause in 
 the lease at the end of the covenant "including the taxes for the previ- 
 ous fiscal year," does not limit the covenant.'^*^ On the same principle 
 where a lease for ten years and six months contained a covenant to 
 pay taxes, it was held that the lessee must pay the taxes which were 
 afiseseed during the last six months for an entire year.'** An agree- 
 ment in a lease to pay all taxes "that may be assessed, levied upon or 
 charged against" the leased property during a certain period binds the 
 lessee to pay taxes which were assessed prior to the termination of the 
 lease, though not levied until afterwards."*^ 
 
 In law taxes are regarded as assessed on the regular date for assess- 
 ment whether the assessment is actually made or not. If it be con- 
 tended for a lessee that his lease expired before the board of assessors 
 fixed the rate of taxation and assessed the tax, the answer is that it 
 is immaterial when the valuation of estates is completed or when the 
 tax is payable. The assessment, when completed, relates back to the 
 first of May, and the tax is in law regarded as assessed on that day.^^*^ 
 
 The term taxable year in a certain calendar year was held to mean 
 the fiscal year beginning on the previous calendar year.'^^^ 
 
 '" Wilkinson v. Libbey, 1 Allen '^ Salisbury v. Shirley, 53 Cal. 461. 
 
 (Mass.) 375; Craig v. Summers, 47 "''Waterman v. Harkness, 2 Mo. 
 
 Minn. 189, 49 N. W. 742. App. 494. 
 
 '^^McManus v. Fair Shoe &c. Co., ^'"Amory v. Melvin, 112 Mass. 83; 
 
 60 Mo. App. 216. Elliot v. Gantt, 64 Mo. App. 248. 
 
 '»« Shepardson v. Elmore, 19 Wis. '" De Giverville v. Legg, 48 Mo. 
 
 424. App. 573. A lease under which ten- 
 
 '" Blythe v. Gately, 51 Cal. 236. ant covenanted to pay all taxes and 
 
 I
 
 467 TO PAY TAXES. [§§ 418, 419 
 
 § 418. Invalid taxes. — Where lessee of premises agrees to pay all 
 assessments that may be levied thereon, iie in fact agrees to pay such 
 assessments only as are valid or such as can be legally enforced against 
 the lessor or against the property."- A claim that a lessee, having 
 stipulated in a lease to pay the taxes on the property, is thereby es- 
 topped from urging their invalidity is fallacious. The lessee, by the 
 provision in the lease, did not preclude himself from urging the in- 
 validity of any taxes that should be assessed against the property. 
 His obligation was to pay the legal taxes such as a special assessment 
 that might be levied by the city in this case.'^^^ No estoppel can l)e 
 raised against a lessee to assert the invalidity of a tax, as long as he 
 has no special knowledge of the validity or invalidity and has done 
 nothing to mislead or influence the lessor. It is only necessary to 
 protect the lessee that he did not know or pretend to know anything 
 concerning the validity of the tax.'^^* 
 
 § 419. The destruction of the leased premises does not, as a gen- 
 eral rule release the tenant from his covenant to pay taxes.'^'^^ This 
 is true, although the building is destroyed soon after the tax is as- 
 sessed and the lease comes to an end by force of one of its own pro- 
 \asions. A further agreement by a grantee from the lessor to payJtee- 
 half the tax would not relieve the lessee. The payment of half the 
 tax was merely a part of the price of the estate. Whatever price was 
 obtained or however it was computed, it could have no effect upon the 
 covenant of the lessee to pay the tax.'^'**' Under a lease in which lessee 
 covenants to pay all taxes assessed during the term upon a portion of 
 the premises, the lessee is not entitled to a proportionate return of 
 the sums paid by him when the building is destroyed by fire and the 
 lease is terminated.^^^ An agreement to apportion taxes between 
 lessor and lessee under certain circumstances is valid and enforceable 
 but is limited in its operation to its express language. Thus a special 
 provision for the apportionment of taxes in the first and last years of 
 
 assessments was surrendered on Oc- ""^ Scott v. Society &c., 59 Neb. 571, 
 
 tober 1, after taxes had been as- 81 N. W. 624. 
 
 sessed, which would not become due "* Clark v. Coolidge, 8 Kan. 189. 
 
 till January. Held, a release in ^°' Paul v. Chickering, 117 Mass. • 
 
 general terms relieved tenant from 265; Sargent v. Pray, 117 Mass. 
 
 all obligation to pay these taxes. 267; Carnes v. Hersey, 117 Mass. 
 
 Henry v. Chrisinger, 76 Iowa 126, 269. 
 
 40 N. W. 121. ""Paul v. Chickering, 117 Mass. 
 
 '"= Clark v. Coolidge, 8 Kan. 189; 265. 
 
 Scott v. Society &c., 59 Neb. 571, 81 "' Wood v. Bogle, 115 Mass. 30. 
 N. W. 624.
 
 § 420] COVENANTS IN LEASES, 468 
 
 the lease leave the general covenant, to pay all taxes payable for or 
 in respect of the i^remises during the term, unqualified during the 
 intermediate time. It strengthens the inference that there was no in- 
 tention to apportion taxes in case of a destruction of the premises.''^* 
 
 § 420. What constitutes a breach. — In the absence of specific lan- 
 guage in a covenant to pay taxes it is difficult to determine the exact 
 time when the obligation of the lessee to pay accrues. In one case it 
 was assumed that the tenant was entitled to delay the payment thereof 
 until they became "delinquent" under the statute. However this was 
 no reason why the lessor should not pay them sooner and recover 
 them back from the lessee in case of his ultimate default. Still there 
 could be no breach of the covenant to pay till the lessee's obligation 
 to pay accrued.'^^'' An obligation in a lease requiring lessee to pay 
 taxes or forfeit his right to remove improvements simply requires him 
 to pay them in the ordinary course of collection, and not necessarily 
 before the termination of the lease.^"** Actual payment of the de- 
 linquent taxes by the lessor is not essential to his right to maintain 
 an action to recover the amount of them. On lessee's failure to pay 
 assessments, the lessor may bring suit and recover the full amount of 
 the assessments, though he has not .paid any part of thein. ^ The cove- 
 nant in such a case, it was held, was not one simply of indemnity, but 
 a positive agreement to pay the assessments and was broken when the 
 lessee neglected to pay. Upon the lessee's neglect to pay, a cause of 
 action at once accrues to the lessor, and he may either pay the tax 
 and sue the lessee for the amount or may sue without first so paying 
 it himself. It may be stated as the general rule that, when the de- 
 fendant contracts to pay a debt and fails to do so, the measure of dam- 
 age is the amount of .the debt; but when the contract is one of in- 
 demnity only, damages must be sustained before a recovery can be 
 had.®"^ However, there is a case holding that the lessor's right of 
 action does not accrue till he has paid the overdue taxes himself.**"^ 
 
 '"^Carnes v. Hersey, 117 Mass. 269. App. 498. The court say: "Suppose 
 
 "^ Wills V. Summers, 45 Minn. 90, these taxes had never been paid; 
 
 47 N. W. 463. what cause of action would Mrs. S. 
 
 *°* Allen V. Dent, 4 Lea (Tenn.) have against the county? The law 
 
 676. creates an implied contract that the 
 
 '"^ Rector &c. v. Higgins, 48 N. Y. county will reimburse her, not, how- 
 
 532; Fontaine v. Schulenburg &c. ever, upon the written contract, but 
 
 Co., 109 Mo. 55, 18 S. W. 1147; Ham upon the fact of payment, and this 
 
 V. Hill, 29 Mo. 275; Rowsey v. implied contract creates the cause 
 
 Lynch, 61 Mo. 560. of action, and it accrues as soon as 
 
 *"= Board &c. v. Streeter, 2 Kan. the payments are made. It is the 
 
 II
 
 469 TO PAY TAXES. [§ 420 
 
 In an action for a breach of covenant to pay taxes, a general alle- 
 gation in the complaint, showing that the premises were assessed for 
 state and county purposes, and the amount of the taxes due thereon, is 
 sufficient. Such a complaint will stand the test of a general de- 
 murrer.^^^ Where the due payment of taxes is one of the covenants 
 of a lease and the taxes are allowed to become delinquent by the lessee 
 or his assigns, no demand for their payment by lessor is necessary be- 
 fore declaring a forfeiture.^^* It would be impossible for the land- 
 lord to tell when, where, and what to demand.^°^ A covenant in a 
 lease for the payment of taxes does not require demand for such pay- 
 ment before a forfeiture may be had, since such taxes are not rent to 
 require demand but are wholly matters between the tenant and the 
 proper officer.®"^ But where the landlord is given his option to pay 
 assessments and collect them as part of the rent, the tenant could 
 not be expected to know when the a.ssessments were due and could not 
 be put in default till he was notified of the levy or be held for a 
 breach of covenant. ^"^ A statutory provision by which a landowner 
 is given an option to extend a time for payment of assessments by 
 waiving all claims of their illegality cannot be exercised by a tenant 
 who is bound by a covenant in his lease to pay taxes and assessments.^**^ 
 
 Actual payment of the taxes out of property or money of the lessee 
 is all that the lessor can insist upon, and it seems that the leasehold 
 estate is property belonging to the lessee which may be applied to 
 this purpose. So in a case where a tenant neglected to pay taxes and 
 his leasehold estate was sold to pay them, this was held not to cause a 
 forfeiture. Since only the lessee's title had been taken, it was just 
 
 wrongs done (the delicts) that ere- *°*Byrane v. Rogers, 8 Minn. 281; 
 ate the cause of action, and these Bacon v. Park, 19 Utah 246, 57 Pac. 
 are not complete until the other 28; Davis v. Burrell, 10 C. B. 821, 70 
 party has suffered damage, and this E. C. L. 821; Garner v. Hannah, 6 
 could not occur in this case till she Duer (N. Y.) 262, overruling Jack- 
 paid. "When did the delicts occur? son v. Harrison, 17 Johns. (N. Y.) 
 Take the earliest possible moment 66. Contra, Meni v. Rathbone, 21 
 of time when the county could be Ind. 454. 
 
 said to be in default, or have com- *"^ Byrane v. Rogers, 8 Minn. 281. 
 
 mitted a wrong. Certainly not until ^"" Metropolitan Land Co. v. Man- 
 
 the taxes became due. But can she ning, 98 Mo. App. 248, 71 S. W. 696; 
 
 complain at this time? We think Davis v. Burrell, 10 C. B. 821, 70 E. 
 
 not, for she has not been harmed. C. L. 821. 
 
 But when she has made the pay- *"' Dockrill v. Schenk, 37 111. App. 
 
 ment she is damaged to the amount 44. 
 
 paid. * *" ^'"*Vorse v. Des Moines Marble &c. 
 
 ^"^ Ellis v. Bradbury, 75 Cal. 234, Co., 104 Iowa 541, 73 N. W. 1064. 
 17 Pac. 3.
 
 §• 420] COVEXAXTS IX LEASES. 470 
 
 the same as if the tenant had taken money from his own pocket and 
 paid the taxes.^"^ 
 
 The amoimt of damages which a lessor can recover from his lessee 
 for breach of a covenant to pay taxes is the amount paid by the lessor 
 as taxes, with interest from the date of the payment, not including 
 costs. The costs incurred by reason of any delay in the payment to 
 the city must be considered as the result of the lessor's own fault or 
 negligence and are not to be included in the amount he may recover, 
 
 810 
 
 Goode V. Ruehle, 23 Mich. 30. ^" Sargent v. Pray, 117 Mass. 267.
 
 CHAPTEE VI. 
 
 ASSIGNMENT OF LEASES. 
 
 1. By Lessor, §§ 421-430. I 4. Conditions against Assignment 
 
 2. By Lessee, §§ 431-446. and Subletting, §§ 464-473. 
 
 3. Rights and Liabilities of Parties, 
 
 §§ 447-463. ' 
 
 I. By Lessor. 
 
 § 421. According to the modern rule the power of a lessor is ample 
 to transfer either the entire reversion or his interest under the lease, 
 
 and such transfer is effective to vest in the transferee the right to all 
 rent reserved in the lease, without any further action on the part of 
 the tenant. "At common law, reversions and remainders, lying in 
 grant and not being capable of being perfected by livery, as in the 
 case of the grant of the freehold, or by entry, in case of the grant of 
 a leasehold interest, required for many purposes an attornment of 
 the tenant of the particular preceding estate; but where such attorn- 
 ment was obtained, the reversion or remainder, or the estate carved 
 out of it, vested so as to give the grantee the right to the rents and 
 services attached to the reversion, and, since statute 32 Hen. VIII, 
 chap. 34, to sue on any covenant running with the reversion. The stat- 
 ute of 4 Anne, chap. 16, § 9, now makes all grants of manors or rents, 
 or of the reversion or remainder of any messuages or lands, effectual to 
 all intents and purposes, without any attornment of the tenants of the 
 manors, or of the lands out of which the rent shall be issuing, or of 
 the particular tenants upon whose estates any such reversions or re- 
 mainders shall and may be expected or depending, as if their attorn- 
 ment had been had and made."^ 
 
 The rule introduced into the English law by the statutes of 32 
 Hen. VIII, chap. 34, and of 4 Anne, chap. 16, § 9, by which grants of 
 reversions are made effectual without attornment, so that an assignee 
 can maintain an action for rent, must be regarded as adopted in many 
 states of this country ; it follows that the ancient common law require- 
 
 * Doe V. Brown, 2 E. & B. 331, 347, 75 E. C. L. 331, per Lord Campbell, 
 C. J. 
 
 471
 
 § 421] ASSIGXilEXT OF LEASES. 472 
 
 ment of attornment, being iinsuited to our conditions, has never 
 been a part of the law of this country.- After a lessor has sold his 
 reversion, the purchaser can recover the rent reserved although the 
 tenant has not attorned. The conclusion in an}' particular jurisdic- 
 tion that attornment is not necessary may rest upon one of three 
 grounds. First, that the early English acts dispensing with the 
 necessity may have been expressly reenaeted; second, it may be held 
 that those early statutes became a part of the great body of English 
 common law which was adopted in this country upon the settlement 
 of the English colonists; third, it has been held that the common 
 law rule requiring attornment was inapplicable to conditions ex- 
 isting in this country and never became a part of our law. In sup- 
 port of the third view it has been said that the "doctrine of attorn- 
 ment grew out of the peculiar relations existing between the landlord 
 and his tenant under the feudal law. The landlord could not alienate 
 the estate without the consent of his tenant. This consent was called 
 an attornment. It was founded upon a state of society which cer- 
 tainly never had any existence in Michigan. The peculiar reasons 
 and relations out of which the doctrine sprung never having had any 
 existence here, why should the rule itself? Wliere the reasons from 
 whence a rule arose cease to exist, the rule should cease also. The 
 doctrine of attornment is inconsistent with our laws, customs and 
 institutions."^ 
 
 ^^^lere a lease is made at common law, the tenancy is not complete 
 until the lessee has entered upon the land demised. The lease itself 
 is regarded, not as a conveyance, but merely as a contract for the 
 possession of the land, and, therefore, before entry, the lessee has 
 no interest or estate in the land, but only a right to have the 
 
 -American &c. Co. v. Turner, 95 71 Vt. 430, 46 Atl. 63; Farley v. 
 
 Ala. 272, 11 So. 211; Otis v. McMil- Thompson, 15 Mass. 18, 26; Burden 
 
 Ian, 70 Ala. 46, 52; English v. Key, v. Thayer, 3 Mete. (Mass.) 76; Ca- 
 
 39 Ala. 113, 116; King v. Housatonic vis v. McClary, 5 N. H. 529; Pender- 
 
 R. Co., 45 Conn. 226; Baldwin v. gast v. Young, 21 N. H. 234. In the 
 
 "Walker, 21 Conn. 168; Funk v. Kin- latter case it is said: ". . . the 
 
 caid, 5 Md. 404; Lindley v. Dakin, whole doctrine of attornment grew 
 
 13 Ind. 388; Kellum v. Berkshire out of the peculiar policy of the 
 
 L. Ins. Co., 101 Ind. 455; McCardell feudal law and never could have 
 
 V. Williams, 19 R. I. 701, 36 Atl. been consistent in the spirit of our 
 
 719; Hendrickson v. Beeson, 21 government and political institu- 
 
 Neb. 61; Jones v. Rigby, 41 Minn, tions." Per Perley, J., p. 236. 
 
 530, 43 N. W. 390; Tilford v. Flem- = Perrin v. Lepper, 34 Mich. 292, 
 
 ing, 64 Pa. St. 300; Pelton v. Place, per Marston, J.
 
 473 BY LESSOR. [§ 422 
 
 land for the term of the lease, called in law an interesse termini.^ 
 It follows that if at the making of the lease the land demised be in 
 the possession of a tenant under a prior letting, so that no entry 
 upon it can lawfully be made by the lessee, the lessee can acquire 
 no estate in the land during the continuance of the prior tenancy, 
 unless he can prevail upon the prior tenant to attorn to him, so that 
 the possession of the prior tenant becomes his also; and, accord- 
 ingly, the rule in such case is, that without attornment no interest 
 in the reversion passes under the lease, but it is good against the 
 tenant only as a future interesse termini, to take effect in possession, 
 on the determination of the prior tenancy.^ So the lessor and not 
 the lessee would be the proper one to give the statutory notice to 
 quit to a tenant in possession.*' 
 
 In Tennessee it seems that attornment is still necessary to entitle 
 an assignee of a reversion to sue for rents in his own name. In the 
 case where this doctrine was laid down, the lessee had knowledge of 
 the sale and had been directed by the lessor to pay rent to the grantee. 
 The court held that the grantee could have maintained an action 
 in the name of the lessor for his own use, but before such an action 
 could be maintained in the grantee's own name on the obligation, the 
 lessee must make an express promise to pay rent to him.^ N'ever- 
 theless, in that state, a lessor may alienate his estate in the land, 
 and his right in reversion to the possession, so that his grantee would 
 have the same right to the possession after the expiration of the 
 term that his grantor had.® 
 
 § 422. In regard to the effect of a transfer of the reversion on the 
 rents, it is a well-settled principle of the common law that the grant of 
 the reversion of an estate expectant on the determination of a lease 
 for years, passes to the grantee the rents reserved in the lease as 
 incident to the reversion.'' No apportionment would be made, but 
 
 * Miller v. Green, 8 Bing. 92, 104; ' Marney v. Byrd, 11 Humph. 
 
 1 Instit. 46b; Bacon's Abridg. Tit. (Tenn.) 95. 
 
 Leases and Terms for Years (M.). ^ Marley v. Rodgers, 5 Yerg. 
 
 = Edwards v. Wickwar, L. R., 1 (Tenn.) 217. 
 
 Eq. 403, 404; Doe v. Brown, 2 B. & "King v. Housatonic R. Co., 45 
 
 B. 331, 348, 75 E. C. L. 331; Raw- Conn. 226; Foote v. Overman, 22 111. 
 
 lyns' Case, 4 Coke 52d, 53b; Bacon's App. 181; Peck v. Northrop, 17 Conn. 
 
 Abridg. Tit. Leases and Terms for 217; Chandler v. Pittsburgh &c. Co., 
 
 Years (N.). 20 Ind. App. 165; Perrin v. Lepper, 
 
 "Comstock v. Cavanagh, 17 R. L 34 Mich. 292; Hansen v. Prince, 45 
 
 233, 21 Atl. 498. Mich. 519, 8 N. W. 584; Kornegay
 
 §■ 422] ASSIGNMENT OF LEASES. 474 
 
 the monthly, quarterly, or annual rent would follow the land and 
 belong to the owner at the time it accrues.^" And the rule is the 
 same where the assignment of the reversion is by mortgage, instead 
 of being by an absolute conveyance.^ ^ So the purchaser on a fore- 
 closure sale under a mortgage junior to a lease would prevail over 
 a transferee of the lease from the lessor. As against the rights of 
 the lessor, who is also the mortgagor, the right of the mortgagee 
 is complete at the time of the execution of the mortgage, and such 
 mortgage being executed prior to the assignment of the lease, it is 
 apparent that no subsequent assignment of the lease can take away 
 any rights from the mortgagee.^- 
 
 A transfer of a reversion is entirely unlike an assignment of a 
 chose in action, where to perfect the transfer notice must be given 
 to the debtor. The land is assigned and the rent passes only as 
 an incident ; and notice of the transfer of the land is given the lessees 
 and everybody else by recording the deed. Moreover, no one but the 
 lessees can complain of the want of notice, though the lessees right 
 to notice is universally recognized. If the deed is not recorded at 
 the time of its delivery, and the lessees afterwards pay the rent to 
 the lessor, without notice of the assignment, they may well complain, 
 if sued for it by the assignee.^^ If the assignee lies by and permits 
 the tenant to pay rent to the lessor as it falls due, he cannot force 
 the lessee to pay it a second time. Such was the rule under the old 
 common law where an attornment was necessary." The equities 
 between the parties are adjusted, however, by holding that the grantor 
 
 V. Collier, 65 N. Car. 69; Bullard v. Page v. Culver, 55 Mo. App. 606, 
 
 Johnson, 65 N. Car. 436; Holly v. § 667. 
 
 Holly, 94 N. Car. 670; Hecht v. Dett- "Kimball v. Pike, 18 N. H. 419; 
 
 man, 56 Iowa 679, 7 N. W. 495, 10 Fitchburg &c. Corp. v. Melven, 15 
 
 N. W. 241; Abrams v. Sheehan, 40' Mass. 268; Burden v. Thayer, 3 
 
 Md. 446; Keay v. Goodwin, 16 Mass. Mete. (Mass.) 76; Babcock v. Ken- 
 
 1; Beal v. Boston &c. Co., 125 Mass. nedy, 1 Vt. 457; Moss v. Gallimore, 
 
 157, 28 Am. R. 216; Burden v. 1 Doug. 279; Birch v. Wright, 1 
 
 Thayer, 3 Mete. (Mass.) 76; Culver- Term R. 378, 383; King v. Housa- 
 
 house v. Worts, 32 Mo. App. 419; tonic R. Co., 45 Conn. 226; Ameri- 
 
 Vaughn v. Locke, 27 Mo. 290; Kim- can &c. Co. v. Turner, 95 Ala. 272, 
 
 ball v. Pike, 18 N. H. 419; York v. 11 So. 211; Clarke v. Cobb, 121 Cal. 
 
 Jones, 2 N. H. 454; Johnston v. 595, 54 Pac. 74; Scheldt v. Belz, 4 
 
 Smith, 3 Pen. & W. (Pa.) 496; Scott 111. App. 431. 
 
 v. Lunt, 7 Peb. (U. S.) 596; Co. i= Kimball v. Pike, 18 N. H. 419. 
 
 Litt. 151, 152; 2 Bl. Comm. 176; 4 "Peck v. Northrop. 17 Conn. 217; 
 
 Kent 354, § 667. Kornegay v. Collier, 65 N. Car. 69. 
 
 "Vaughn v. Locke, 27 Mo. 290; " Pelton v. Place, 71 Vt. 430, 46 
 
 Atl. 63.
 
 475 BY LESSOR. [§• 422 
 
 is liable to the grantee for rents received by him becoming due after 
 the conveyance.^^ 
 
 It follows from the doctrine that rent is incident to the reversion, 
 that after a grant of the reversion, the rent cannot be reached by 
 creditors of the lessor to be applied upon his debts.^® Furthermore, 
 an agreement that an assignor shall receive a certain proportion of 
 a subsequently accruing rent payment gives him no title to enforce 
 such payment by any action founded on the lease itself; and tliere- 
 fore the lessee could not be garnisheed by a creditor of the lessor.^^ 
 After a lessor conveys without reservation of rent, he cannot recover 
 rent subsequently accruing, unless it has been assigned to him by 
 the grantee. ^^ 
 
 The general rule that rent follows the reversion is applicable where 
 a person grants a lease of lands and on his death conveys the land 
 by will. In such case it is settled that rents coming due after the 
 death of the testator, follow the reversion to the devisee.^'* A sale 
 of a reversionary interest in land under execution carries with it all 
 the rent falling due after the transfer.^" For, in this respect, such 
 a forced sale has the same effect in transferring the reversionary 
 interest that a voluntary deed of the premises by the lessor would 
 have.^^ Eent follows the reversion after a sale by an administrator 
 authorized by statute after the death of the lessor,* ^ as it has been 
 ruled that a sale by an administrator under a statute is equivalent 
 to a sale by the heir, the administrator being made by statute, in 
 substance, the attorney in fact of the heir to make such sale.-^ But 
 this rule has its limitations, and the tenant of an heir is not tenant 
 to the purchaser of the property at a sale ordered by the surrogate 
 for the purpose of realizing assets to pay off the ancestor's debts;-* 
 and for heirs to assent to the collection of rent by the administrator 
 of the former lessor does not make the administrator landlord to the 
 tenant in possession.^^ Where an owner of gas land executes a gas 
 
 "Van Wagner v. Van Nostrand, ^Johnson v. Doss, 1 Tex. App. 
 
 19 Iowa 422. Civ. Cas., § 1076. 
 
 "Kornegay v. Collier, 65 N. Car. '^ Lancashire v. Mason, 75 N. Car. 
 
 69. 455. 
 
 "Hansen v. Prince, 45 Mich. 519, -Page v. Culver, 55 Mo. App. 606. 
 
 8 N. W. 584. ='Selb v. Montague, 102 111. 446; 
 
 "West Shore Mills Co. v. Ed- Foote v. Overman, 22 111. App. 181. 
 
 wards, 24 Ore. 475, 33 Pac. 987. ^* Jackson v. Robinson, 4 Wend. 
 
 "Rogers v. McKenzie, 65 N. Car. (N. Y.) 436. 
 
 218; Mixon v. Coffield, 2 Ired. (N. "'Stewart v. Smiley, 46 Ark. 373. 
 Car.) 301; Holly v. Holly, 94 N. Car. 
 670.
 
 §§' 423, 424] ASSIGXMEXT OF LEASES. 47G 
 
 lease and afterwards conveys the land, the grantees are entitled to 
 rents maturing after the transfer, a gas lease being more like a lease 
 for tillage than like a mining lease.^^ 
 
 § 423. In Illinois the statute of Anne dispensing with attornment 
 was not regarded as in force in 1871, and hence, it was decided in that 
 year that an attornment by a tenant was necessary to entitle an assignee 
 of rent to sue in his own name.-'^ But the rule of this case has since 
 been abrogated by statute, which dispensed with the necessity for at- 
 tornment.-^ However, in a case where the Court of Appeals held that 
 an assignment of rent. would prevail over a garnishment of the lessee 
 by a creditor of the lessor, the court said that the right of the as- 
 signee was merely an equitable right.^" And this has been subse- 
 quently cited as an authority for the proposition that an assignee 
 of all the lessor's right, title, and interest in a lease gives the as- 
 signee no right of action at law.^*^ The correct rule was declared 
 in a later case, decided by the same court, that an assignment by a 
 lessor of all his title and interest in a lease, with directions that 
 all rents thereunder be paid to the assignee, authorizes the assignee 
 to sue for the rents to accrue and no attornment by the tenant is 
 necessary.^^ 
 
 § 424, A reversion, not being an estate in possession, would lie in 
 grant and the ordinary mode of transfer would be by deed, signed, 
 sealed and delivered. Where the lessor's interest was evidenced by a 
 bond for title which was delivered with the indorsement "For value 
 received, I hereby assign ... all my right, title, and interest 
 to the real estate described in the within bond, and held by me by 
 virtue of said bond," an accompanying delivery of the lease was held to 
 constitute a valid transfer and to invest the transferee with the right 
 to recover rent. Such assignment was more than a mere transfer 
 of the writing or bond. It invested the transferree with all the right 
 
 =" Chandler v. Pittsburgh Glass the assignee could sue at law to 
 
 Co., 20 Ind. App. 165, 50 N. E. 400. recover subsequently accruing rent. 
 
 =' Fisher v. Deering, 60 111. 114, Fisher v. Deering, 60 111. 114, over- 
 
 =' Rowland v. White, 48 111. App. ruling Chapman v. McGrew, 20 111. 
 
 236; R. S., eh. 80, § 14. 101, on this point. 
 
 ^^Buxbaum v. Dunham, 51 111. =° Hefling v. Van Zandt, 60 111. 
 
 App. 240, Even under the early App. 662. 
 
 doctrine in this state, where the '' Barnes v. Northern Trust Co., 
 
 tenant attorned to an assignee of 66 111. App. 282. 
 the reversion by paying rent to him.
 
 477 BY LESSOR. [§ 424 
 
 or interest of the obligee by virtue of such bond.^- A lease for a 
 year in writing, the rent under which was secured by rent notes, 
 was delivered by the lessor to another and the rent notes were as- 
 signed to him, with the intention of assigning the lease, but no writ- 
 ten assignment was executed. The absence of a written assignment 
 was not fatal, for it was held to be well settled that such a lease 
 could be assigned by parol. The intention of the parties to assign 
 was clear, so there was not simply an assignment of the rent but 
 an assignment of the lease as well.^^ Where an assignment is only 
 of the term, the rights of the assignee of the lessor do not extend 
 beyond the term and, if the reversion is not assigned, the assignee 
 of the lessor has no right to a return of the premises* The right 
 of action for breach of the covenant to return in good condition 
 would in that case remain in tlie lessor, the owner of the reversion.^* 
 A covenant to surrender up premises in good repair is not broken 
 until the term ends, and therefore no one but the owner of the re- 
 version can prosecute for a breach of that covenant.^^ Where a build- 
 ing, two rooms of which were leased for a long term, was leased 
 entire to another for a short term, this did not take effect as an as- 
 signment of the existing lease but was merely a transfer of the right 
 to collect rents. An assignment of rents is neither, in law or equity, 
 an assignment of the lease which secures the rents.^*' So the second 
 lessee could not bring an action for breach of a covenant of restrictive 
 use contained in the first lease. Nothing is more clear than that 
 one man cannot complain of an injury affecting the property of 
 another person.^^ 
 
 The interest of the landlord may also pass by descent; if the 
 landlord die before the expiration of the term for which the land 
 is leased, the tenant thereupon becomes the tenant of the heir to 
 whom the land descends; and the relation between the tenant and 
 the heir, in such case, will be in all respects the same as previously 
 existed between the tenant and the ancestor. The contract of lease 
 will be no less obligatory, as between the tenant and the heir, than 
 between the original parties ; and the tenant can no more controvert 
 the title of the heir than he could that of the ancestor.^^ 
 
 '' Van Driel v. Rosierz, 26 Iowa ^^ White v. Kane, 53 Mo. App. 300. 
 
 575. ^' Allen v. Wooley. 1 Blackf. (Ind.) 
 
 '^Oswald v. Mollet, 29 111. App. 148; Attorney-General v. United 
 
 449. Kingdom &c., 30 Beav. 287. 
 
 '* Bordereaux t. Walker, 85 111. ^* Blantre v. Whitaker, 11 Humph. 
 
 App. 86. (Tenn.) 313. 
 
 ==Demarest v. Willard, 8 Cow. (N. 
 Y.) 206. 
 
 I
 
 §§ 425, 426] ASSIGXMEXT OF LEASES. 478 
 
 A lease for a term of years, conditioned on the payment of an 
 annual rent, with a perpetual right of renewal, does not divest the 
 lessor of his fee in the premises, so that a conveyance of the leased 
 premises by the lessor makes the grantee the landlord of the lessee, 
 with the right of possession upon a forfeiture for breach of the con- 
 dition of the lease.^^ 
 
 WTiere a lease has been accepted from two owners as joint owners, 
 one of them cannot assign the entire lease, even though they be hus- 
 band and wife, for the tenant could not inquire into their individual 
 interests.*" 
 
 § 425. Rent may be excepted in a grant of a reversion by a lessor, 
 
 for rent is not necessarily an incident of the reversion so that it can- 
 not by the acts or agreements of the parties be separated from it. 
 It is true that in a general grant of a reversion, the rent will pass 
 as incident to it. But the reversion may be granted and the rent 
 reserved, or the rent may be assigned, reserving the reversion, if 
 such is the intention of the parties as expressed by the words they 
 use. Lord Coke says that fealty is an incident inseparably annexed 
 to the reversion, and the donor or lessor -jcannoi grant the reversion 
 and save to himself the fealty; but the rent he may except, because 
 the rent, though it be an incident, yet is not inseparably incident.*^ 
 Thus a lessor could grant his reversion, or surrender it to the lessee, 
 and reserve the rent accruing on under-leases, which had in turn 
 been assigned to him. In such a case the lessor's relations to the sub- 
 lessees is not changed by the grant or surrender of the reversion, 
 and he can recover rent of them on the covenants of their leases. 
 If it be expressly agreed that the surrender shall not invalidate the 
 assignment of the sub-leases, the two transactions might be made 
 simultaneously.*^ 
 
 § 426. Attornment has been defined to be the acknowledgment by 
 a tenant of a new landlord on the alienation of land, and an agree- 
 ment to become tenant to the purchaser.*^ One of the commonest 
 ways in which an attornment is effected is by the payment of rent 
 to the grantee of the reversion. Thus, where the tenant of a de- 
 
 '" Page V. Esty, 54 Me. 319. *= Beal v. Boston &c. Co., 125 Mass. 
 
 ^oHecht V. Ferris, 45 Mich. 376, 8 157, 28 Am. R. 216. 
 
 N. W. 82. "Whart. Law Die. 66; 1 Bouv. 
 
 "Co. Lit. 143a, 151b; 3 Cruise Law Die. 151; Lindley v. Dakin, 13 
 
 Dig. 337; Demarest v. Willard, 8 Ind. 388. 
 Cow. (N. Y.) 206. 
 
 I
 
 479 BY LESSOR. [§ 437 
 
 ceased lessor paid the pro rata share of rent to one of his heirs, the 
 relation of landlord and tenant was established between the parties.** 
 A payment of rent made on a threat of suit by an assignee of the 
 reversion must be regarded as an attornment to him, though the 
 payment was expressed to be merely for the use and occupation of 
 the premises, and was accompanied by a protest, and denial of the 
 assignee's right to receive the money, and also a declaration that 
 the tenant did not recognize the relation of landlord and tenant 
 as existing between him and the assignee. In spite of all objections 
 the payment of rent was held to effect an attornment, according to 
 the general rule in such cases.*^ Paying rent to the grantor as 
 agent for the grantee, after notice of the transfer and the capacity 
 in which the grantor acts, has also been held to constitute an at- 
 tornment to the grantee, although he was not dealt with in person. 
 The ordinary rules of principal and agent would apply.*'' 
 
 The endeavor of a lessee to persuade an assignee of the lease to 
 accept a grain rent, coupled with the remark that they were all right, 
 amounts to an attornment, as any act by which a party recognizes 
 a change in the person to whom rent is due is an attornment.*^ At- 
 tornment is not the creation or initiation of a new lease, commencing 
 on the day of attornment, but is merely the assent of the tenant to 
 his landlord's alienation and the acceptance of the alienee as the 
 new landlord.*® 
 
 § 427. Covenants in assignment to deliver possession. — Occupancy 
 by a tenant of property sold, where that fact and the title of the ten- 
 ant are known at the time to a purchaser, is not a breach of the 
 covenant of right of possession; and if no special contract is made, 
 the occupant becomes tenant to the purchaser. The possession of 
 the tenant is the possession of the landlord.*^ At the common law, 
 after attornment, the occupancy of a tenant could not be deemed 
 a breach of any covenant in the deed. The reason is obvious. The 
 tenant was thereafter the tenant of the purchaser. In contempla- 
 tion of law the tenant received his possession from such purchaser 
 and at the expiration of his term was bound to surrender it to him. 
 The statute doing away with attornment now accomplishes the same 
 
 ** Leitch V. Boyington, 84 111. 179. « Tilford v. Fleming, 64 Pa. St. 
 
 "McCardell v. Williams, 19 R. I. 300. 
 
 701. *'Kellum v. Berkshire L. Ins. Co., 
 
 '"Knorr v. Raymond, 73 Ga. 749. 101 Ind. 455; Lindley v. Dakin, 13 
 
 *' Oswald V. Mollet, 29 111. App. Ind. 388; Page v. Lashley, 15 Ind. 
 
 449; Hayes v. Lawyer, 83 111. 182. 152.
 
 §' 427] ASSIGNMENT OF LEASES, 480 
 
 purpose; it transfers the possession. It enables the purchaser to 
 collect the rent, to enforce all other obligations of the tenant and 
 compels him, at the expiration of the term, to yield the possession 
 to the purchaser. It establishes the relation of landlord and tenant 
 between the parties and entitles the purchaser to all the remedies 
 applicable to such relation. This being so, it must follow that the 
 mere occupancy of the vendor's tenants cannot operate as a breach 
 of the covenants in the deed.°° 
 
 Where a reversionary interest is assigned, it is not necessary that 
 possession by symbol, as by delivery of keys, or possession by actual 
 occupancy should exist in all cases. Where vendee is entitled to 
 possession and is accepted as landlord by the tenant of a vendor, and 
 the vendor assents, that is sufficient to constitute a transfer of posses- 
 sion to the grantee. ^^ "A sale by a lessor of real estate, during an 
 unexpired leasehold term, under which a tenant is holding, do(?s not 
 of itself abrogate the lease, determine +he leasehold estate, or authorize 
 the landlord or tenant to treat the lease as at an end. Its only effect 
 is to substitute the vendee of the reversion to all the rights of the 
 original lessor. . . . The vendee then becomes the landlord by 
 operation of law; . . . and the tenant becomes the tenant of 
 the vendee of the reversion."^ ^ Ordinarily a grantee accepts a ten- 
 ant in possession as his own, and is in possession through such ten- 
 ant, but this is not so where the grantor agrees to give the grantee 
 immediate possession by means of an agreement with the tenant.^^ 
 A tenant cannot attorn to a person other than his landlord. This 
 doctrine is unquestionably applicable where the rights of the landlord 
 would be injuriously affected; but when he contracts to sell rented 
 premises to another and by express agreement between himself and 
 his vendee, which is assented to by the tenant, the vendee is to have 
 immediate possession of the premises and the tenant is thereafter 
 to hold under him as landlord, there is an end to the contract of 
 rental between the vendor and his tenant, and it certainly would not 
 do to hold that these three persons were not all bound by the ex- 
 press terms of their agreement, or that their privies were not con- 
 cluded thereby.^* Even though a lessor's violation of an agreement 
 to give the lessee a preference in case of sale gave the lessee a right 
 to abandon the premises, as long as he did continue in the possession 
 
 ™ Kellum V. Berkshire L. Ins. Co., ^' Williams v. Frybarger, 9 Ind. 
 
 101 Ind. 455. App. 558, 37 N. E. 302. 
 
 =1 McLean v. Spratt, 19 Fla. 97. "Collins v. Moore, 115 Ga. 327, 
 
 " Otis V. McMillan, 70 Ala. 46, 53, 41 S. E. 609. 
 per Stone, J.
 
 481 
 
 BY LESSOR. 
 
 [§ 438 
 
 of the land, he continued as the tenant to the grantees. ^^ How- 
 ever, the sale of leased lands passes only the right to the land sub- 
 ject to the lease, if the grantee has notice of it,^® and actual posses- 
 sion by the tenant at the time of the sale charges the purchaser 
 with notice of his rights. ^^ 
 
 § 428. A conveyance of the reversion in fee to a lessee or his as- 
 signee holding an outstanding lease causes the lease to merge in the 
 freehold estate.^ ^ A right of redemption in the lessor, as where the 
 reversion passes to the lessee as purchaser under a power of sale in 
 a mortgage junior to the lease, would not preclude the operation 
 of this rule; but the lease would be merged in the larger estate, and 
 in case the mortgagor exercised his right to redeem, he would obtain 
 an immediate right to possession.^^ In case the lessor mortgages 
 the demised estate to his lessee, the mortgage will be supposed to have 
 been first executed, and will be no bar to the recovery of rent under 
 the lease. But after the parties fail to demand or pay rent, or inter- 
 est, and the lessee is suffered to enter for the purpose of foreclosing 
 his mortgage, there is sufficient evidence of the lessee's election to 
 hold under the mortgage and of the lessor's assent that he should 
 so hold. During the suspension of the lease, the lessee will be ac- 
 countable for the profits as mortgagee."" Nevertheless, a lessee tak- 
 ing a mortgage of the same lands from his lessor wall, in the first 
 instance, be considered as holding under the lease, until he has made 
 
 =" Davidson v. Wallingford, 88 
 Tex. 619, 32 S. W. 1030; Heflin v. 
 Burns, 70 Tex. 347, 8 S. W. 48; 
 Hearne v. Lewis, 78 Tex. 276, 14 
 S. W. 572; Breeding v. Taylor, 13 
 B. Mon. (Ky.) 477. 
 
 "" O'Neil V. Davis, 1 Tex. App. Civ. 
 Cas., § 416. 
 
 "Friedlander v. Ryder, 30 Neb. 
 783, 74 N. W. 83; O'Neil v. Davis, 
 1 Tex. App. Civ. Cas., § 416. 
 
 ^' Liebeschutz v. Moore, 70 Ind. 
 142, 36 Am. R. 182; McMahan v. 
 Jacoway, 105 Ala. 585, 18 So. 48; 
 Otis v. McMillan, 70 Ala. 46; Car- 
 roll V. Ballance, 26 111. 9, 19; Wabl 
 V. Barroll, 8 Gill (Md.) 288; Gunn 
 V. Sinclair, 52 Mo. 327; Zeysing v. 
 
 Welbourn, 42 Mo. App. 352; Beck- 
 with V. Howard, 6 R. 1. 1; Webb v. 
 Russell, 3 Term R. 393; Hughes v. 
 Robotham, 1 Cro. Eliz. 302; 1 Cruise 
 Dig. 239, 3 Brest. Conv. 201. "Where 
 a term for years and the immediate 
 reversion meet in one and the same 
 person, in his own right, either by 
 his own act or by act of the law, 
 so that he has full power of aliena- 
 tion of both estates, they will 
 merge." Wash. Real Prop. (6th ed.), 
 § 740, citing Burton Real Prop., 
 §§ 897, 899; 1 Cruise Dig. 239; 3 
 Prest. Conv. 201. 
 '=^Otis V. McMillan, 70 Ala. 46. 
 ™Newall V. Wright, 3 Mass. 138, 
 3 Am. Dec. 98. 
 
 Jones L. & T.— 31
 
 § 428] ASSIGNMENT OF LEASES. 4S'3 
 
 his election to hold under his subsequent mortgage, or done some 
 act equivalent and given notice of such election to the lessor.*'^ 
 
 In order for a merger to take place, however, legal title, as distin- 
 guished from a mere equitable interest, must be conveyed to the ten- 
 ant. A bond given by a lessor, in which he engaged to give a deed 
 of the premises to the lessee, and "stop charging him rent," does not 
 change the nature or incidents of the previous tenancy under an oral 
 demise.^^ 
 
 If the deed to the lessee is expressly made subject to the lease, 
 the lessee must hold under the lease and pay rent as long as it con- 
 tinues, and he cannot take under the deed till the end of the terra. 
 Such a deed, by its terms, postpones the rights thereunder to the 
 lease already taken. The right under the deed is subject to the lease, 
 and if the lease is to continue in force for three years the grantee 
 can get nothing by the deed until then. He can take under a deed, 
 only in accordance with its terms. *'^ If a tenant purchases from his 
 landlord, or at a sheriff's sale, the tenancy is thereby extinguished.*'* 
 Such a sale entitles the purchaser to the rent a'ccruing from the day 
 of the sale to the expiration of the tenancy.*'^ But it is competent to 
 have an understanding or agreement that rent for the current year 
 shall be paid to the representatives of the lessor, and it would be 
 binding and enforceable when bids at the execution sale were guided 
 by this understanding.®*' 
 
 It has been held that for a lessee or his assignee to become the 
 owner in fee of an undivided half of the estate of which tlie leased 
 premises constituted a part does not extinguish the lease. There 
 is no union of the greater and the less estate, in the same person, 
 and in the same right, which is necessary to create a merger."^ The 
 case relied upon as authority for this decision was one where there ,j 
 was a joint lease to two for their joint lives and to the survivor for 
 his life and the entire reversion was conveyed to one of the life ten-;v, 
 ants. There was no merger because of the intervening estate in sur-' 
 
 "Newall V. Wright, 3 Mass. 138, «* Higgins v. Turner. 61 Mo. 249;,. 
 
 3 Am. Dec. 98; Wood v. Felton, 9 Gunn v. Sinclair, 52 Mo. 327. 
 Pick. (Mass.) 171. ^Stevenson v. Hancock, 72 Mo. 
 
 "Rooney v. Gillespie, 6 Allen 612; Winfrey v. Work, 75 Mo. 55. 
 (Mass.) 74; Benedict v. Morse, 10 "''Aull Sav. Bank v. Aull, 80 Mo. 
 
 Mete. (Mass.) 223; Howard v. Mer- 199; Zeysing v. Welbourn, 42 Mo. 
 
 riam, 5 Gush. (Mass.) 563; Furlong App. 352. 
 V. Leary, 8 Gush. (Mass.) 409. ^'Martin v. Tobin, 123 Mass. 85, 
 
 "Wilbur V. Nichols, 61 Vt. 432, citing Johnson v. Johnson, 7 Allen 
 
 18 Atl. 154. (Mass.) 196.
 
 483 BY LESSOR. [§ 429 
 
 vivorship in the other tenant.''^ This is essentially different from 
 a case where a single lessee receives a conveyance of an undivided 
 interest in the reversion, and on the latter state of facts there would 
 be a merger, pro tanto, of the term, and the covenants to pay rent, 
 taxes, and assessments are thereby extinguished as to the part pur- 
 chased by the lessee.*^^ In case of a sale on partition, the purchaser 
 would have the same right to occupy and enjoy the premises, in pro- 
 portion to his interest in the present estate, as the lessee himself. 
 If partition is awarded and the premises are to be sold, of course 
 they must be sold as an entirety subject to the lease. If after the 
 sale the lessee assumed the exclusive possession, he would be bound 
 to account to the purchaser for the value of the portion of the 
 premises not covered by the lease.^° 
 
 A covenant to convey to a lessee, though contained in the instru- 
 ment of demise, does not depend for its validity on the continued 
 existence of an outstanding term. The conveyance may be demanded 
 at any time and the existence or non-existence of the lease at the 
 time when the demand is made is immaterial to the right of the 
 parties.^^ Where a lease contained a clause authorizing the lessor 
 to terminate the lease by a sale of the premises, and providing for 
 payment of a bonus to the lessee in that event, a sale to tlie lessee 
 himself would not entitle him to recover the bonus, as that was not 
 within the fair intent of the parties.'- 
 
 § 429. Effect of sub-tenancy on merger. — A sub-tenant who accepts 
 an assignment of the original lease becomes the owner of the re- 
 versionary title to the sub-leased premises and therefore by operation 
 of law the sub-lease and all the covenants therein contained are merged 
 and extinguished and the sub-leased lot is held in the same manner 
 and upon the same terms and conditions as if no sub-lease had ever 
 been made.''^^ By the sub-tenant's purchase of the entire leasehold 
 interest, the relation of landlord and tenant under a rental contract 
 for one year is merged into, that of vendor and vendee. Consequently 
 
 •'^ Johnson v. Johnson, 7 Allen "Prout v. Roby, 15 Wall. (U. S.) 
 
 (Mass.) 196. 471, 21 L. ed. 58. 
 
 ''^ Lansing v. Pine, 4 Paige (N. Y.) ^* Seaman v. Civill, 45 Barb. (N. 
 
 639; Hill v. Reno, 112 111. 154; Y.) 267, 31 How. Pr. 52. 
 
 Shillito V. Pullan, 2 Disney (Ohio) ''^ Wahl v. Barroll, 8 Gill (Md.) 
 
 588. 288; Webb v. Russell, 3 Term R. 
 
 '"Hill V. Reno, 112 111. 154. 393; Hughes v. Robotham, 1 Cro 
 
 Eliz. 302.
 
 § 429] ASSIGNMENT OF LEASES. 48-i 
 
 a covenant to repair in the rental contract would not be binding on 
 the assignor after the assignment.'^* 
 
 A surrender by a lessee to his lessor of the outstanding term will 
 not operate to destroy the interests of undertenants. The interests 
 and terms of the subtenants continue as if no surrender were made. 
 The owners of the fee to whom the surrender has been made become 
 the landlords of the subtenants with only such rights as the surrenderor 
 would have had to the possession of the premises. The original lessee 
 could not sell, give up or surrender anything that did not belong to 
 him; and he could not terminate the leases to the subtenants or 
 destroy their rights.'^^ 
 
 The merger of the term of the original lessee in the estate of his 
 lessor would not render the latter liable on the covenants of the 
 Tinder lease. There is no privity of estate or contract between an 
 original lessor and a subtenant, and such privity would not be created 
 merely by the surrender of the original tenant — a matter between 
 him and his lessor. A tenant may surrender his estate to his land- 
 lord, but if he have, since its commencement, created some minor in- 
 terest out of it, or have made an underlease, he cannot, by surrender- 
 ing, destroy the charge or affect the estate of the underlessee. Al- 
 though the tenant cannot prejudice the interest of the underlessee, 
 yet he will lose the rent he has reserved upon the underlease, for the 
 rent is incident to the reversion; nor can the surrenderee have it, 
 for, although the reversion, to which it was incident has been conveyed 
 to him,, yet, as soon as it was so conveyed, it merged in the greater 
 reversion. Hence the consequence is that, neither the surrenderor 
 nor the surrenderee being entitled to the rent, the underlessee holds 
 without the payment of any rent at all, excepting where the contrary 
 has been expressly provided by statute. In England it is now pro- 
 vided by statute'^" that when the reversion expectant on a lease of any 
 tenements or hereditaments is surrendered, or merges, the estate which 
 for the time being confers, as against the tenant under the lease, the 
 next vested right to the premises, is to be deemed the reversion ex- 
 pectant on the lease ; to the extent and for the purpose of preserving 
 such incidents to and obligations on the reversion as, but for the 
 surrender and merger, would have existed. However, there will be no 
 
 ^*McMahan v. Jacoway, 105 Ala. Davenport's Case, 8 Coke 287; Webb 
 
 585, 18 So. 48. v. Russell, 3 Term R. 393; Doe v. 
 
 ^^Krlder v. Ramsay, 79 N. Car. Pyke, 5 M. & S. 146; Burton Real 
 
 354; Eten v. Luyster, 60 N. Y. 252; Prop., § 898; Crabb Real Prop., 
 
 Bailey v. Richardson, 66 Cal. 416; § 2447, b. 
 
 Adams v. Goddard, 48 Me. 212; ^« 8 & 9 Vict, c. 106, § 9.
 
 485 . BY LESSOR. [§ 430 
 
 merger when the person in whom the two reversionary interests vests 
 elects to keep the estate separate, and such an intent may be col- 
 lected from the acts and conduct of the parties.'^'^ 
 
 § 430. An assignment of a lessor's interest under a lease without 
 a transfer of any rights in the reversion, is equivalent to an assign- 
 ment of rent. The validity of this mode of transfer was adjudicated 
 in an early "English case upon a devise of rents. The case was this : 
 "Lessee for thirty years of a parcel of land lets it for twenty-eight 
 years, rendering £34 rent per annum; and after deviseth £28 parcel 
 of that rent to his three sons, severally to every of them a third 
 part. One of them brings debt for his part of the rent. . . 
 Gawdy and Fenner held, that the action well lay ; for there is no doubt 
 but that rent may be devised and be divided from the reversion; for 
 it is not merely a thing in action, but quasi an inheritance. . . . 
 Popham and Clench e contra. For as the lessee by his own act 
 shall not divide the lessor's contract, nor apportion his action; 
 so likewise the law favors the lessee, that the act of the lessor 
 shall not charge him with divers actions, or double distress, but 
 upon his voluntary attornment; and the contract being entire can- 
 not be apportioned. But Popham agreed, that the rent was well de- 
 visable, and by that means severable from the reversion."'^® This case 
 left in doubt the question whether a grantee of rents, by a grant inter 
 vivos, could maintain an action for them in his own name. It was 
 argued that such an action lay not, for default of privity; for the 
 privity of estate remained with the lessor, and no privity of contract 
 passed to the grantee; and of such opinion were two justices. But 
 the two other justices were of opinion that the attornment of the 
 tenant made a privity, for his attornment is a consent to the grant, 
 and that the grantee shall have the rent." But in a later case it was 
 "adjudged, that where the lessor assigned his rent without the re- 
 version, that the assignee (if the tenant agrees) may maintain an 
 action of debt for the rent, because the privity of contract is trans- 
 ferred."^^ So that whatever doubt may have originally existed upon 
 this point, it is now well settled that the assignee of rent (without the 
 reversion) reserved on a lease for years may have debt for the rent 
 against the lessee.^^ And any other remedy, such as attachment for 
 
 " Bailey v. Richardson, 66 Cal. same effect see Fisher v. Deering, 
 
 416, 5 Pac. 910. 60 111. 114, overruling Chapman v. 
 
 '^Ards V. Watkin, 2 Cro. Eliz. 637. McGrew, 20 111. 101. 
 
 "Robins v. Cox, 1 Lev. 22. ^' Vin. Abr. "Estate" B, b. 18, pi. 
 
 '° Marie v. Flake, 3 Salk. 118. To 10; Bac. Abr. "Rent" M; Gilbert on
 
 430] 
 
 ASSIGNilEXT OF LE.i^ES. 
 
 48G 
 
 rent which is open to the landlord, nia}^ be availed of b\- the assignee 
 to recover the rent.^- 
 
 The English law seems now to be definitely settled that under the 
 statute of 32 Hen. VIII, an assignee of the rent, witliout the reversion, 
 could recover when there was an attornment, and that such an assignee 
 could, under the statute of 4 Anne, recover without an attorn- 
 ment.*^ To give the assignee of the reversion a more complete remedy 
 4 and 5 Anne, chapter IG, section 9, was adopted, dispensing with 
 the necessity for an attornment. In many states of the Union, this 
 latter act has been adopted, and the decisions of their courts conform 
 to its provisions. When rent is assigned, without the reversion, the 
 assignee. may sue the lessee for rent accruing after the assignment; 
 because the privity of contract is transferred.^* An assignment of the 
 rent before it is due will enable the assignee to maintain an action in 
 his own name; but if made after the rent is due, it being a mere 
 chose in action, the assignment will not convey any right of action 
 to the assignee, nor divest the lessor of the right to maintain the 
 action.*^ 
 
 Rents, 165-6; 4 Cruise Dig., Title 
 28. ch. 3, §§ 19, 20, 21, 31; Allen v. 
 Bryan, 5 B. & C. 512; Demarest v. 
 Willard, 8 Cow. (N. Y.) 206; Farley 
 V. Craig, 11 N. J. L. 312; Ryerson 
 V. Quackenbush, 26 N. J. L. 236, 
 251; Willard v. Tillman, 2 Hill (N. 
 Y.) 274; Leonard v. Burgess, 16 
 Wis. 41; Martin v. Martin, 7 Md. 
 368; Abrams v. Sheehan, 40 Md. 
 446; Abercrombie v. Redpath, 1 
 Iowa 111; Watson v. Hunkins, 13 
 Iowa 547. 
 
 *' Haywood v. O'Brien, 52 Iowa 
 537, 3 N. W. 545. 
 
 "Williams v. Haywood, 1 E. & E. 
 1040, 102 E. C. L. 1040, 28 L. J. Q. 
 B. 374. The court say: "In our 
 opinion stat. 4 Anne, c. 16, § 19, ren- 
 ders attornment unnecessary in 
 such a case as the present; and, 
 by force of that statute, the same 
 privity is created between the plain- 
 tiff, as grantee of the rent, and the 
 defendant, the tenant of the land 
 out of which the rent issues, as if 
 the defendant had actually attorned 
 
 to the plaintiff. Attornment is 
 stated by Lord Coke to be an agree- 
 ment of the tenant to the grant of 
 the seignory or of a rent. . . . Co. 
 Litt. 309a. Stat. 4 Anne, c. 16, § 9, 
 appears to have been intended to 
 meet both parts of this definition. 
 . . . The statute, therefore, in 
 terms creates the feame privity, be- 
 tween the grantee of the rent and 
 the tenant of the lands out of which 
 it issues, as an attornment would 
 have done if the tenant had actually 
 attorned to the grantee." 
 
 ''Ptafl V. Golden, 126 Mass. 402; 
 Hunt v. Thompson, 2 Allen (Mass.) 
 341; Kendall v. Carland, 5 Cush. 
 (Mass.) 74; Patten v. Deshon, 1 
 Gray (Mass.) 325; Ryerson v. 
 Quackenbush, 26 N. J. L. 236; Allen 
 V. Bryan, 5 B. & C. 512; Demarest 
 V. Willard. 8 Cow. (N. Y.) 206; Wil- 
 lard V. Tillman, 2 Hill (N. Y.) 274; 
 Childs V. Clark, 3 Barb. Ch. 52; 
 Moffatt V. Smith, 4 N. Y. 126. 
 
 *" Ryerson v. Quackenbush, 26 N. 
 J. L. 236. 
 
 II
 
 487 BY LESSEE. [§431 
 
 As has already appeared in regard to assignments of a reversion, 
 no formal act of attornment is necessary where the lessor assigns the 
 lease alone, the lessee at once being under legal obligation to pay the 
 rent to the assignee.®'' In case part of the crop is reserved as rent, an 
 assignment of rent would give the assignee the right to maintain re- 
 plevin for the crop as soon as the share to be paid as rent had been 
 divided off by the tenant.®^ 
 
 The right of an assignee of a reversion to the rent incident to it 
 is subject to all the equities or just demands of the tenants or other 
 incumbrances affecting and controlling the payment of rent. Where 
 a landlord gives an order on his tenant, which the tenant accepts, to 
 pay the accruing rent to a third person, such person thereby acquires 
 an equitable lien on the rent. A purchaser of the reversion with full 
 knowledge of the facts is estopped from claiming the rent so as- 
 signed.^* 
 
 II. By Lessee. 
 
 § 431. Transfer of lessee's interest. — Although in its origin a les- 
 see's interest consisted in a mere contractual right against the owner 
 of the land, it early grew to be a recognized estate in the land known 
 as a chattel real which carried with it the ordinary rights and inci- 
 dents of property and of ownership. So lessees have the common law 
 right to assign or transfer their interest to a third person, to put him 
 into possession of the property, and to clothe him with all their 
 rights and privileges under the contract, and this right can only 
 be restrained by express stipulation. The right to transfer the whole 
 includes the right to transfer any interest less than the whole. The 
 well-settled rule at common law gives the owner of a leasehold estate 
 the right to alienate his interest, either by assigning the lease in toto 
 or by sub-letting a part of the premises.^'' Making a sublease is not 
 
 '"Kelly v. Bowerman, 113 Mich. Moffatt, 2 Blackf. 304. Illinois: 
 
 446, 71 N. W. 836; Perrin v. Lepper, Rowland v. White, 48 111. App. 236; 
 
 34 Mich. 292. Kew v. Trainor, 150 111. 150, 37 N. 
 
 "Lufkin V. Preston, 52 Iowa 235, E. 223, affirming 50 App. 629. Kan- 
 
 3 N. W. 58. sas: Mabry v. Harp, 54 Kan. 398, 
 
 ^Abrams V. Sheehan, 40 Md. 446. 36 Pac. 743. Kentucky: Montague 
 
 *" Alabama: Crommelin v. Thiess, v. Jamison, 16 Ky. L. R. 238. Louis- 
 
 31 Ala. 412; Nave v. Berry, 22 Ala. lana: Weatherly v. Baker, 25 La. 
 
 382. Georgia: Robinson v. Perry, Ann. 229. Maine: Wheeler v. Hill, 
 
 21 Ga. 183, 68 Am. Dec. 455. Iowa: 16 Me. 329. Minnesota: Gould v. 
 
 Goldsmith v. Wilson, 68 Iowa 685, Sub-District No. 3, 8 Minn. 427. 
 
 28 N. W. 16. Indiana: Taylor v. Mississippi: Harris v. Frank, 52
 
 § 431] ASSIGNMENT OF LEASES, 
 
 a ground for which the landlord may reenter in the absence of any! 
 express provisions to that effect.®" 
 
 A lease for an indeterminate period, with a reservation of rent, is 
 assignable, since it creates a tenancy from year to year,®^ But one; 
 stipulating that the holding may be determined by either party on.; 
 four days' notice, gives to the lessee no certain indefeasible interest 
 which he may transfer to another.®^ Equity will not enjoin the; 
 assignment of a lease on the ground that the proposed assignee isj 
 insolvent, where the assignor's responsibility for rent will continue.®*^ 
 
 A parol contract restricting the right of the lessee to assign or sub- ; 
 let would be inadmissible as a collateral stipulation because it would] 
 contradict the terms of the lease. In the construction of a written 
 contract for the purpose of determining whether a parol agreement; 
 is consistent with it, its legal implications and incidents should be. 
 considered as written out and incorporated in it. If this were done 
 there would be found in a lease an express stipulation that the lessees 
 might assign their term to whomsoever they pleased, and that their as- 
 signee should have the same right to possess and enjoy that they 
 themselves had. The parol proof offered would conflict with this 
 stipulation and would be incompetent.*** With regard to the right 
 to assign leasehold estates, no stress should be laid upon the use of 
 the word' assigns ; if the lease is made to the lessee, his executors, or 
 administrators, his assigns are included in himself, and the right to 
 assign, unless restrained, is incident to his estate.®^ 
 
 An exception to the general rule has been made in case of a lease 
 upon shares. A lease upon shares is, according to this view, a per- 
 sonal contract and not assignable where the amount of rent received 
 must depend on the character and skill of the lessee, or where it gives 
 the lessee the use of the lessor's tools on condition that they may 
 be properly kept. Such a personal lease is forfeited by an assign- 
 ment and attempt to transfer possession, and the lessor may take im- 
 mediate steps to recover the premises. Under such a lease the land- 
 Miss. 155. No. Carolina: Krider v. '" Pearcy v. Heath, 1 Ky. L. R. 
 Ramsay, 79 N. Car. 354. New York: 407. 
 
 Howard v. Ellis, 4 Sandf. 369; "Jackson v. Hughes, 1 Blackf. 
 
 Brouwer v. Jones, 23 Barb. 153; De (Ind.) 421. 
 
 Forest v. Byrne, 1 Hilt. 43. Ohio: ^= Say v. Stoddard, 27 Ohio St. 478. 
 
 Crowe V. Riley, 63 Ohio St. 1, 57 ^^ McBee v. Sampson, 66 Fed. 416. 
 N. E. 956. Tennessee: Eastham v. "Nave v. Berry, 22 Ala. 382. 
 Crowder, 10 Humph. 194. English: "= Church v. Brown, 15 Ves. 258, 
 
 Crusoe v. Bugby, 2 W. Bl. 766, 3 263. 
 Wils. 234; Mayor &c. v. Pattison, 10 
 East 130, 136. 
 
 I
 
 489 BY LESSEE. [§ 431 
 
 lord has a right to choose his tenant, and he may be willing to lease 
 upon shares to one man, and yet be wholly unwilling to let another 
 have possession on any terms. So with reference to the use of hi& 
 farm implements, one might be a prudent, careful man who would 
 take good care of them, while another more reckless would not be al- 
 lowed to use them on any terms.®^ 
 
 ]SI"ot only is it the general rule, subject to this exception, that the 
 ownership of a chattel real carries with it the right to assign and 
 transfer such interest, but it is further true that after the creation 
 of the estate, no restriction can be placed upon the alienation of a. 
 leasehold. It is laid down by Lord Coke that "if a man be possessed 
 of a lease for years, . . . and give or sell his whole interest or 
 property therein, upon the condition that the donee shall not alien the 
 same, the same is void, because his whole interest and property is- 
 out of him, so as he ham no possibility of a reverter, and it is against 
 trade and traffic and bargaining and contracting between man and 
 man,'"'^ The rule is different, however, in regard to the original con- 
 tract of lease. In the instrument creating the estate, a condition by 
 which a lease is to be void if the lessee assigns is clearly good in a 
 term for years or for life. It is not a capricious exercise of power 
 on the part of the lessor. In a lease for agricultural purposes, the 
 lessor is interested in having a good tenant and one who understands 
 his business. He is more so in a lease for mining purposes, where 
 greater skill is required and more confidence is necessarily reposed in 
 accounting for the tolls or rent.^^ Therefore, it may be stated as a 
 general rule that an unauthorized assignment is only valid when the 
 lease itself contains no restriction against assignment or sub-letting.^^ 
 
 An assignment of the lease carries with it a clause giving the ten- 
 ant the right to renew at the end of the term and as well as all other 
 clauses. ^''^ The right of renewal conferred by a lease constitutes a 
 part of the tenant's interest in the land and may be sold and as- 
 signed by him, and the benefits of this right may be enforced by the 
 assignee. ^''^ 
 
 »«Randell v. Chubb, 46 Mich. 311, Mabry v. Harp, 53 Kan. 398, 36 Pac. 
 
 9 N. W. 429; Lewis v. Sheldon, 113 743; Goldsmith v. Wilson, 68 Iowa 
 
 Mich. 102, 61 N. W. 269. 685, 28 N. W. 16; Gould v. Sub- 
 
 "' 2 Co. Inst. 30, cited in Turner District No. 3, 8 Minn. 427. 
 
 v. Johnson, 7 Dana (Ky.) 435, 438. ^"^ Sutherland v. Goodnow, 108 
 
 '^Hargrave v. King, 5 Ired. Eq. 111. 528. 
 
 (N. Car.) 430. ^"^ McCIintock v. Joyner, 77 Miss. 
 
 ">' Crommelin v. Thiess, 31 Ala. 678, 27 So. 837. 
 412; Nave v. Berry, 22 Ala. 382;
 
 §§ 432, 433] ASSIGNMEXT OF LEASES. 490 
 
 § 432. Statutory provisions against assignment and subletting 
 have been enacted in some states and to .that extent the right existing 
 at common law to transfer leasehold estates has been modified and 
 changed. Thus, in Kansas,^*^- in Kentuckv^°^ and in Missouri,^ "■* a 
 tenant who has a term for less than two years is forbidden to assign 
 it without the consent of his landlord and, if he does so, it works a 
 forfeiture of the lease at the election of the lessor. But an assign- 
 ment of a lease for a term of two years or more, without landlord's 
 consent, does not operate as a forfeiture or authorize the landlord to 
 reenter, although the term would expire in less than two years from 
 the date of the assignment.^"^ However, in spite of such a statute, 
 the right of action for injury to possession is in the tenant and not 
 in the landlord. The wrongful ouster of a tenant by a stranger is not 
 of itself a legal ground for recovery by a landlord against a stranger.^'^'^ 
 So where a lessee permits another to occupy a part of the house 
 rented, retaining the control in himself, there is no sub-tenancy."^ 
 It resulted from such a statute that a term from month to month 
 could not be sold on an execution against the tenant without the con- 
 sent of the landlord. To sanction a transfer, by means of legal pro- 
 cess, of the tenant's interest in such an estate, would be to afford 
 an easy mode of evading the plain meaning of the law.^°^ Where a 
 person in good faith purchases of a tenant, having a term of less 
 than two years, an interest in his lease, without the assent of the land- 
 lord, such contract is voidable only not absolutely void. With the 
 subsequent assent of the landlord the contract becomes valid ; all de- 
 pends on the action of the landlord.^°° Contracts in contravention 
 of the statute are not to be held void unless the court, from an exami- 
 nation of the statute, shall judge such to have been the intent of the 
 legislature.^^" 
 
 § 433. In Georgia it is provided by statute that an estate for years, 
 if it be in lands, passes as realty. Such an estate "carries with it the 
 right to use in as absolute a manner as a greater estate."^^^ It is 
 
 "'Gen. St. 1889, § 3620. "'Waller v. Morgan. 18 B. Mon. 
 
 "^'Rev. St. 1894, § 2292; R. S. 1889. (Ky.) 136. 
 § 6368. "^Holliday v. Aehle, 99 Mo. 273. 
 
 ^■^Rev. St. 1889, § 4107. "' Mabry v. Harp, 53 Kan. 398, 36 
 
 ""Grizzle v. Pennington, 14 Bush Pac. 743; Waite v. Teeters, 36 Kan. 
 
 (Ky.) 115; Montague v. Jamison, 604, 14 Pac. 146. 
 15 Ky. L. R. 238. "" Bemis v. Becker, 1 Kan. 226. 
 
 "«Walden v. Conn, 84 Ky. 312, 1 "^ Code 1895, §§ 3109, 3111. 
 S. W. 537. 
 
 1
 
 491 BY LESSEE. [§ 433 
 
 further enacted in regard to the rehTtion of landlord and tenant that 
 "when the owner of real estate grants to another simply the right to 
 possess and enjoy the use of such real estate, either for a fixed time 
 or at the will of the grantor, and the tenant accepts the grant, the 
 relation of landlord and tenant exists between them. In such case 
 no estate passes out of the landlord and the tenant has only a usu- 
 fruct, which he cannot convey except by the landlord's consent, and 
 which is not subject to le\7 and sale; and all renting or leasing of 
 such real estate for a period of time less than five years shall be held 
 to convey only the right to possess and enjoy such real estate and to 
 pass no estate out of the landlord, and to give only the usufruct, 
 unless the contrary be agreed upon by parties to the contract, and so 
 stated therein.""- These sections were held to furnish no ground 
 why an estate for years could not be bought and sold like any other 
 real estate. The section denying the right of the tenant to convey 
 applies to the case where the tenant has a mere use.^^^ However, if 
 the tenant holds from year to year, he has no estate in the land, and 
 therefore cannot assign his interest, so that the term cannot become 
 a part of the tenant's assets in case of his insolvency.^" Without the 
 landlord's consent, the tenant has no right to transfer his lease, and 
 the transferee would be a mere intruder subject to be summarily 
 ousted by the landlord.^^^ Furthermore, a tenant has no right to 
 impose a sub-tenant upon the landlord without his consent, and if 
 it is attempted, the sub-tenant becomes the tenant of the landlord, if 
 he elects to recognize him as such, and not the tenant of the tenant 
 who placed him upon the premises, without the consent of the land- 
 lord. The landlord so recognizing the sub-tenant, may proceed 
 against him for holding over, or he may refuse to recognize the ten- 
 ancy and proceed to expel the person placed upon the premises by the^ 
 tenant, without his consent, as an intruder, in any manner prescribed 
 by law for the expulsion of trespassers or intruders."*^ But in order 
 for the relation of landlord and tenant to exist between the owner of 
 the property and a sub-tenant, some affirmative action must be had 
 by the landlord showing that he elected to treat the sub-tenant as liis 
 
 "=Code 1895, § 3115. "' McBurney v. Mclntyre, 38 Ga. 
 
 1" Clark V. Herring, 43 Ga. 226. 261; Smith v. Turnley, 44 Ga. 243, 
 
 "*Stultz V. Fleming, 83 Ga. 14, 247; McConnell v. East Point Land 
 
 9 S. E. 1067. Co., 100 Ga. 129, 28 S. E. 80; Hud- 
 
 "=Bass V. West, 110 Ga. 698, 36 son v. Stewart, 110 Ga. 37, 35 S. E. 
 
 S. E. 244; Stultz v. Fleming, 83 Ga. 178. 
 14, 9 S. E. 1067.
 
 § 434] ASSIGXMEXT OF LEASES. 492 
 
 own tenant, it not being sufficient that the landlord has knowledge of 
 the sublease and makes no objection to it.^^^ 
 
 § 434. In Texas the statute against assignment reads that a person 
 renting lands shall not rent or lease said lands during the term of his 
 lease to any other person without first obtaining the consent of the 
 landlord, his agent or attorney."^ This statute has application to 
 sub-lettings as well as assignments and was enacted to secure to the 
 owners of lands the selection of persons to occupy and care for them, 
 as well as to secure them the right to have none occupy their lands 
 whose ability or willingness to pay the rents contracted for was not 
 satisfactory. Under the statute persons renting lands or tenements 
 stand as they would, in the absence of such statute, under contracts 
 containing covenants against sub-lettings or assignments; and on vio- 
 lation of the statute, the rights and remedies of the parties are the 
 same as they would be under covenants. Such remedies a landlord 
 may waive, and when he does so, the legal relation between the par- 
 ties must be determined by common law principles."'' But when the 
 landlord does not waive the restrictions raised by the statute, a per- 
 son holding under an illegal sub-letting is a trespasser/-*' so far as 
 the landlord is concerned he may be treated as an employe of the 
 lessee.^^^ A covenant in a lease that the lessee has a right to sublet 
 the premises runs with the land and authorizes the lessee to assign 
 the lease. Such assignment conveys the term. After assignment by 
 lessee he could not surrender the lease or any right under it. Author- 
 ity to sub-let carries with it authority to assign, and a lessee holding 
 under a lease authorizing him to sub-let may mortgage his interest.^^^ 
 For a landlord to accept rent from an assignee of the term would 
 constitute a waiver of a forfeiture caused by a breach of the statutory 
 provision. While an assignment does not come strictly within its 
 letter, it is within the spirit of the statute. Both assignments and 
 
 sub-leasing are equally within the evil sought to be remedied by this 
 law.123 
 
 "' Hudson V. Stewart, 110 Ga. 37, ^^ Forrest v. Durnell, 86 Tex. 647, 
 
 35 S. E. 178. 26 S. W. 481. 
 
 "«Civ. St. 1895, § 3250. ^" Menger v. Ward, 87 Tex. 622, 
 
 "^ Forrest v. Durnell, 86 Tex. 647, 30 S. W. 853, affirming 28 S. W. 831. 
 
 26 S. W. 481. ^===Gulf &c. R. Co. v. Settegast, 79 
 
 "0 Rose v. Riddle, 3 Tex. App. Civ. Tex. 256, 15 S. W. 228. 
 Cas., § 299; Matthews v. Whitaker, 
 (Tex.) 23 S. W. 538.
 
 493 
 
 BY LESSEE. 
 
 [§ 435 
 
 § 436. Where the whole of the term of a leasehold is assigned, 
 there is no relation of landlord and tenant between the assignor and 
 assignee but only that of seller and purchaser ; and if the original les- 
 sor had no title when the lease was made, there is a failure of con- 
 sideration and the assignor cannot recover unpaid installments of 
 purchase money. An assignment of a term for years is governed gen- 
 erally by the rules applicable to the sale of personal property; and, 
 on such sale, while as to the quality of the thing sold caveat emptor 
 is the general rule, the seller impliedly warrants the title. ^-* The 
 rule has been expressly applied to the sale of a lease that in a con- 
 tract for such sale there is ..n implied undertaking to make out the 
 lessor's title and right to demise, as well as that qf the vendor to the 
 lease itself, which implied undertaking is available at law as well as in 
 equity.^^^ Yet there are authorities taking the opposite view to the 
 effect that no covenants are implied on the assignment of a lease. ^-'^ 
 
 The doctrine has been advanced that the assignee, before proceed- 
 ing against the lessee on the assignment, must attempt to hold the 
 original lessor or show him to be insolvent. If an assignee is evicted 
 through a defect in the lessor's title, he may sue the lessor for com- 
 pensation; but in case of a mere assignment of a lease, the assignor 
 is not liable to restore the purchase money in case of eviction, and 
 especially in a case where the lessor's representatives have not been 
 previously resorted to, or shown to be insolvent. ^-^ 
 
 "^Jeffers v. Easton, 113 Cal. 345. 
 45 Pac. 680; Wetzell v. Richcreek, 
 53 Ohio St. 62; Souter v. Drake, 5 
 B. & Ad. 992; Farrer v. Nightingal, 
 2 Esp. 639; 2 BI. Com. 451; Benja- 
 min on Sales, 631; 1 Parsons on 
 Contracts (8th ed.) 573, et seq. 
 
 '^ Souter v. Drake, 5 B. & Ad. 992, 
 1002, per Lord Denman, quoted in 
 Wetzell V. Richcreek, 53 Ohio St. 
 62. 
 
 '=« Waldo V. Hall, 14 Mass. 486; 
 Blair v. Rankin, 11 Mo. 440. In the 
 latter case it is said: "Although 
 the words grant or demise, will in 
 a lease create an implied covenant, 
 against the lessor, yet it is nowhere 
 said that the same words will in 
 an assignment create an implied 
 covenant against the assignor. The 
 object and intent of the parties in 
 
 making an assignment is to put the 
 assignee in the place of the lessee, 
 and when that is done, the assignee 
 ceases to have any further concern 
 with the contract unless he has 
 bound himself by express cov- 
 enants. This is the view of the 
 question that was taken by the 
 court in the case of Waldo v. Hall, 
 14 Mass. 486, and the court says: 
 'We can find no case of an action 
 by an assignee against an assignor, 
 upon a covenant in law for an evic- 
 tion in consequence of an act done 
 by the original lessor. It must bo 
 admitted that the dicta of Sugden, 
 Buller, and some of the more an- 
 cient authors create some doubt in 
 relation to the matter.' " 
 
 ^=" McClenahan v. Gwynn, 3 Munf. 
 (Va.) 556.
 
 §■ 436] ASSIGXilEXT OF LEASES. -iO-i 
 
 In an action for the consideration for an assignment of a lease for 
 a term of years, an eviction by the landlord for non-payment of rent 
 would in no way operate as a defense. ^^^ To defeat the suit it is in- 
 cumbent on the assignee to show that he has been evicted by a para- 
 mount title or that the title under which he held from the assignor 
 has failed.^^^ In the sale of a lease of a house, if the vendor fails to 
 show the lease to the vendee and does not inform him of a covenant 
 therein, that in case of destruction of the house by fire the lease shall 
 terminate and become void, this is such a concealment as vitiates the 
 contract. So in case the house be destroyed by fire in a short time, 
 equity will relieve the vendee by enjoining the vendor from collecting 
 the purchase money, and by directing his notes for the same to be 
 given up and cancelled. ^^^ In every contract for the sale of laud, a 
 condition is implied that the vendor shall convey a good title ; and if 
 the sale be of a lease the condition is implied that the lessor had such 
 a title as would make the lease good.^^^ 
 
 It is, of course, competent for the parties to introduce into the as- 
 signment any covenant or stipulation pertinent to the sul)ject which 
 they have agreed upon ; and it is not imusual for the assignor to cove- 
 nant that the indenture of lease is good, that he has power to assign, 
 that he will save the assignee harmless from former grants and in- 
 cumbrances, and for quiet enjoyment. A guaranty executed con- 
 temporaneously with the delivery of the assigned lease, and the pay- 
 ment of the balance of the purchase price becomes a part of the con- 
 tract of assignment and rests upon sufficient consideration. It amounts 
 to an express covenant of the assignor's title. ^^- 
 
 § 436. What passes on an assignment. — In a deed of assignment 
 or conveyance of leaseholds, there was a clause to the efi^ect that the 
 lessees transferred "all their right, title and interest of, in and to the 
 engines, boilers, tanks, and all other fixtures and personal property 
 situate upon and appertaining to the above leasehold interest and oil 
 well." It was held that this clause did not pass or convey the oil that 
 was in the oil tanks at the date of said deed, although it was on the 
 leasehold estate, as it did not appertain to the leasehold interest which 
 was conveyed. ^^^ The word "lease," when used in a contract of as- 
 
 ^=' Howard v. Britton, 71 Tex. 286, v. Rayer, 9 Price 488; Krause v. 
 
 9 S. W. 73. Kraus, 58 111. App. 559. 
 
 ^=®Peck V. Hensley, 20 Tex. 673. ^^'^ Wetzell v. Richcreek, 53 Ohio 
 
 ""Snelson v. Franklin, 6 Munf. St. 62. 
 
 (Va.) 210. "^Dresser v. Transportation Co. 
 
 "'Fry Spec. Per., § 354; Purvis 8 W. Va. 553.
 
 495 BY LESSEE. [§ 437 
 
 signment to designate the interest transferred, has a definite legal 
 signification — it means the estate in the land. An agreement in writ- 
 ing selling a "lease" does not carry with it oil that had heretofore 
 been pumped from an oil-well on the land so leased. Such a contract 
 is not vague or ambiguous and parol evidence is inadmissible to con- 
 ;radict or vary its terms. ^^* 
 
 § 437. In accordance with the principle that the form of the in- 
 stmment of assignment is immaterial/-^ it has been held that a mem- 
 orandum suflBcient to satisf}- the statute of frauds can be collected 
 from letters and telegrams.^^*' It is well settled that the memorandum 
 must contain within itself, or by some reference to other written evi- 
 dence, the names of the vendor and vendee, and all the essential 
 terms and conditions of the contract expressed with such certainty 
 as may be understood from the memorandum and other written evi- 
 dence referred to, without any aid from parol testimony.^^^ But it 
 is not a fatal objection that the messages come from an agent who 
 does not disclose his principal's name.^"* The provisions of the stat- 
 ute are complied with if the names of competent contracting parties 
 appear in the writing, and if a party be an agent, it is not necessary 
 that the name of the principal shall be disclosed in the writing; the 
 principal may sue or be sued as in other cases.^^® 
 
 If a party purchase what is in reality but a leasehold estate and 
 take of the lessee, or his assignee, a transfer or conveyance, in form 
 an absolute conveyance in fee, yet in judgment of law, such party 
 is only assignee of the terms, and tenant of the lessor. The mere 
 form of the deed, though professing to pass a fee simple estate, will 
 not operate as a disseisin of the superior landlord's estate, but only as 
 an assignment of the unexpired term.^^*' A conveyance of leased 
 
 "*McGuire v. Wright, 18 W. Va. 109; Dykers v. Townsend, 24 N. Y. 
 
 507. 57; Lerned v. Johns, 9 Allen (Mass.) 
 
 '^ Craig v. Summers, 47 Minn. 419; Hunter v. Giddings, 97 Mass. 
 
 189, 49 N. W. 742; Pelton v. Place, 41; Williams v. Bacon, 2 Gray 
 
 71 Vt. 430, 46 Atl. 63; Walsh v. (Mass.) 387; Salmon Falls Mfg. Co. 
 
 Martin, 69 Mich. 29, 37 N. W. 40. v. Goddard, 14 How. (U. S.) 446; 
 
 ^'''Kingsley v. Siebrecht, 92 Me. Browne on St. of Frauds, § 373; 
 
 23, 42 Atl. 249. 3 Parsons on Contracts (5th Ed.), 
 
 "' Williams v. Robinson, 73 Me. p. 10. 
 186. ""McLennan v. Grant, 8 Wash. 
 
 ^=«Kingsley v. Siebrecht, 92 Me. 603, 36 Pac. 682; Worthington v. 
 
 23, 42 Atl. 249. Lee, 61 Md. 530; Esty v. Baker, 48 
 
 1'-° Thayer v. Luce, 22 Ohio St. 62; Me. 495. 
 Pugh v. Chesseldine, 11 Ohio St.
 
 § 438] ASSIGISTMEXT OF LEASES. 49( 
 
 premises oy the lessee to one having notice of the lease, operates 
 merely as an assignment of the term, and although the term has ex- 
 pired before the grantee takes the conveyance and goes into posses- 
 sion, yet if he has notice that the premises are held by his grantor as 
 tenant to another, and there has never been any surrender of posses- 
 sion to the landlord, there will be deemed to be a holding over with the 
 consent of the landlord, and the gi-antee will become a tenant from 
 3'ear to year or at will and liable for the stipulated rent.^*^ 
 
 A bequest in a will of all the testator's interest in a certain de- 
 scribed estate operates as an assignment of his interest as lessee in the 
 estate.^*^ 
 
 In an assignment merely of a leasehold estate which is limited and 
 defined by the original deed, an habendum clause is not necessary.^" 
 
 § 438. The transfer of a lease by assignment may be by indorse- 
 ment on the back of the lease or by separate instrument/** and in the 
 
 latter case such instrument, being a transfer of an interest in land, 
 may properly be recorded; but it will not operate as constructive no- 
 tice to a subsequent purchaser, if it fail to describe the premises, and 
 define the term, or to contain language of description by which the 
 original lease can be recognized as the thing transferred.^*^ An in- 
 dorsement upon the original lease with reference to it incorporates 
 the description of the premises, and the terms upon which they are 
 to be held into the assignment, and the delivery of the lease makes ap- 
 parent the intent to convey the estate.^*^ ISTo authority is necessary 
 on the point that the expression "all my right, title and interest in 
 and to a certain indenture of lease" is ample to pass all the interest 
 of the lessor, to the extent of the lease, not only to the premises therein 
 demised, but also to the rents accruing thereunder.^*^ In case the 
 lessees do not use the word "assign" in the instrument executed by 
 them, but use the word "sold," this is equivalent to "assign" and is 
 sufficient to effect a transfer of the leasehold estate."^ 
 
 **^ De Pere Co. v. Reynen, 65 Wis. "' Sanders v. Partridge, 108 Mass. 
 
 271, 22 N. W. 761, 27 N. W. 155. 556; Keeley Brewing Co. v. Mason, 
 
 ^*^ Martin v. Tobin, 123 Mass. 85. 102 111. App. 381; Barnes v. North- 
 
 "^ Strong v. Garfield, 10 Vt. 497. ern Trust Co., 169 111. 112, 48 N. E. 
 
 ^"Esty v. Baker, 48 Me. 495; 31; Patten v. Deshon, 1 Gray 
 
 Cleveland &c. R. Co. v. Mitchell, 74 (Mass.) 325; Blake v. Sanderson, 
 
 111. App. 602. 1 Gray (Mass.) 332. 
 
 "= Martindale v. Price, 14 Ind. 115. "' Cleveland &c. R. Co. v. Mitch- 
 
 1" Sanders v. Partridge, 108 Mass. ell, 74 111. App. 602. 
 
 556.
 
 497 BY LESSEE. [§ 438 
 
 An assignment of a lease in blank is a nullity. The affixing of a 
 hand and seal to a piece of blank paper never can be considered an 
 assignment by deed or note in writing within the requisition of the 
 statute of frauds. To allow the subsequent filling up of the deed by 
 a third person, to have relation back to the time of the sealing and 
 delivery of the blank paper in consequence of some parol agreement 
 of the parties, is to open the door to fraud and perjury and to defeat 
 the provisions of the statute. ^*^ 
 
 An assignment, just like a deed in fee, must be completed by de- 
 livery and the essential requisite to the validity of a deed is that when 
 placed in the hands of a third party, it has passed beyond the control 
 of the grantor for all time. In case a Jury could rightly infer that 
 the lessee did not part with all control and dominion over the lease, 
 but that he might have the right to recall the assignment, they would 
 be justified in holding it did not take effect as a valid instrument.^ ^"^ 
 
 Where a lessee is forbidden to assign without the consent of the 
 lessor, such consent must be obtained before he can charge the as- 
 signee on the contract. If the lessee had no authority to assign 
 the lease, or to permit the assignees to occupy the premises, the as- 
 signment tendered would have transferred no use of the premises 
 for the remainder of the term. If it operated even as a permission 
 to the assignees to occupy, it would for that very reason have operated 
 as a determination of the assignor's estate. The assignees had a right 
 to a legal surrender of the premises for the remainder of the term, 
 and not merely to a transfer formal but valueless. ^^^ Although such 
 a transfer without the written consent of the landlord operates under 
 the statute as a forfeiture, that does not render the contract void be- 
 tween the parties, and the assignee has a right of action against the 
 lessee for failing to put him in possession.^^^ After an assignee has 
 entered under an assignment, and occupied the premises, he is clearly 
 estopped to deny the validity thereof on the ground that it was not 
 assented to by the lessors. The terms of the lease by which no valid 
 assignment could be made without the assent in writing of the lessors 
 was a condition for the benefit of the lessors which they might waive, 
 and they did waive it by recognizing the assignee as their tenant and 
 receiving rent from him as such. By such assignment and accept- 
 ance of the lease, the assignee is bound to the performance of its con- 
 
 ^*' Jackson v. Titus, 2 Johns. (N. "'Austin v. Harris, 10 Gray 
 
 Y.) 430. (Mass.) 296. 
 
 ^^ Canale v. Copello, 137 Cal. 22, '=- Thompson v. Gray, 15 Ky. L. R. 
 
 69 Pac. 698; Kenney v. Parks, 125 783, 
 Cal. 146, 57 Pac. 772. 
 
 Jones L. & T.— 32
 
 §§ 439, 440] ASSIGXMEXT OF LEASES. 498 
 
 ditions, and his liability for rent is to be governed by the terms of the 
 lease, and not restricted to actual occupation. ^^^ 
 
 § 439. A leasehold estate, created by an instrument under seal, 
 may be assigned by an instrument not under seal.^^* The rule that an 
 instrument under seal can be assigned only by an instrument under 
 seal, applied to an assignment of the lease itself, as a contract, is well 
 settled at law; and a lease, being under seal, could only be assigned 
 by an instrument under seal.^^^ But this objection is not decisive, be- 
 cause a leasehold estate can be transferred in other ways than by an 
 assignment of the instrument by which it is created. A lease, by what- 
 ever form of instrument it is made, conveys to the lessee an estate or 
 interest in the lands. He may in turn convey to another any sub- 
 ordinate interest, or his entire estate in any appropriate form, without 
 regard to the form in which he acquired his own title. The leasehold 
 estate may be transferred by devise, by sale on execution as a chattel, 
 or by sale by an administrator as personal assets. In all these cases 
 the purchaser becomes bound to the lessor to pay the rent and per- 
 form the covenants that run with the land, because the law imposes 
 that obligation upon him by reason of his succession to the estate of 
 the lessee. The same result follows from any transfer by the lessee 
 of his entire estate. A seal is not essential to such a transfer, even of 
 a lease for more than seven years, No written instrument is necessary 
 except to satisfy the statute of frauds. The real question in every 
 case is whether the instrument is sufficient to satisfy the statute of 
 frauds.^^* 
 
 § 440. That the English statute of frauds extends to agreements 
 for the assignment of a lease was settled in early cases,^^^ and the 
 same result has been reached in the United States without regard to 
 minor variations in the phraseology of the statutes here.^^* Contracts 
 
 "^ Blake v. Sanderson, 1 Gray v. Wheatley, 2 Luz. Leg. Reg. (Pa.) 
 
 (Mass.) 332. 37. 
 
 ^'^* Keeley Brewing Co. v. Mason, ^" Wood v. Partridge, 11 Mass. 
 
 102 111. App. 381; Barnes v. North- 488; Brewer v. Dyer, 7 Cush. 
 
 ern Trust Co., 169 111. 112, 48 N. E. (Mass.) 337; Bridgham v. Tileston, 
 
 31; Barrett v. Trainor, 50 111. App. 5 Allen (Mass.) 371. 
 
 420; Bordereaux v. Walker, 85 111. ""Sanders v. Partridge, 108 Mass. 
 
 App. 86; Sanders v. Partridge, 108 556. 
 
 Mass. 556; Stillman v. Harvey, 47 '"Anonymous, Vent. 361; Poult- 
 Conn. 26; Warren v. Leland, 2 ney v. Holmes, 1 Stra. 405; Browne 
 Barb. (N. Y.) 613; Holliday v. Mar- on St. of Frauds, § 320. 
 shall, 7 Johns. (N. Y.) 211; Troxell "^Kingsley v. Siebrecht, 92 Me.
 
 499 BY LESSEE. [§■ 4-iO 
 
 for the sale of leasehold interests, though such interests are technically 
 only chattel interests, are within the mischief intended to be guarded 
 against by the statute. There are in many states leases of land to be 
 built upon, running for long periods with covenants for renewal, 
 which are of great value. A court would therefore hesitate to hold 
 that a statute of frauds did not extend to contracts for the sale of 
 leasehold interests.^^^ If there be a verbal contract between parties 
 for an assignment of the unexpired term of a lease for life, such 
 contract is within the statute of frauds for two reasons. First, be- 
 cause it is an attempted assignment of a leasehold interest, the term 
 being for the life of the original lessor, and second, because it was 
 not performable in one year.^*^" 
 
 It has been argued that a person having orally agreed with a lessee 
 to take his place in a lease — having entered into possession and hav- 
 ing paid rent in checks, — is estopped, when sued by the landlord 
 for rent, from showing there was no assignment of the lease in writ- 
 ing.^^^ But an estoppel arises only where one has led another to 
 act upon the assumption of the existence of a certain state of facts, 
 and where the latter would be prejudiced if the other party were 
 allowed afterwards to show that the facts were otherwise than as 
 he had represented them. Nothing of this kind arises; the landlord 
 has entered into no new contract, undertaken no obligation, nor 
 done anything in consequence of it. The original lessors remain 
 liable on the lease for the rent for the whole of the term and, if 
 rent is not paid, the landlord has a prompt and efficacious remedy 
 by which he can recover possession of the premises. It does not 
 operate to his prejudice or injury to show that the occupant did 
 
 not acquire any valid right or title to the estate created by the 
 lease.^^2 
 
 23, 42 Atl. 249; Smith v. Smith, 9 ^^^ Tief enbriin v. Tiefenbrim, 65 
 
 Ky. L. R. 100; Sanders v. Partridge, Mo. App. 253; Nally v. Reading, 107 
 
 108 Mass. 556; Durand v. Curtis, 57 Mo. 350, 17 S. W. 978; Johnson v. 
 
 N. Y. 7; Welsh v. Schuyler, 6 Daly Reading, 36 Mo. App. 306. 
 
 (N. Y.) 412; Potter v. Arnold, 15 ^"Carter v. Hammett, 12 Barb. 
 
 R. I. 350; Briles v. Pace, 13 Ired. L. (N. Y.) 253, s. c. 18 Barb. 608; 
 
 (N. Car.) 279; Johnson v. Reading, Chicago Attachment Co. v. Davis 
 
 36 Mo. App. 306; Hunt v. Coe, 15 &c. Co., 33 111. App. 362, reversed 
 
 Iowa 197; Chicago Attachment Co. in 142 111. 171, 31 N. B. 438. 
 
 V. Davis &c. Co., 142 111. 171, 31 ^"^ Welsh v. Schuyler, 6 Daly (N. 
 
 N. E. 438, reversing 33 111. App. 362. Y.) 412. 
 
 ^=» Potter V. Arnold, 15 R. I. 350. 
 5 Atl. 379.
 
 § 441] ASSIGNMENT OF LEASES. 500 
 
 § 441. The validity of a parol assignment of a valid parol lease 
 
 was raised in England at the Lent Assizes in the year 1808. 
 Shepherd, Sergeant, contended that though there might be a good 
 parol demise for a term under three years, yet no lease for any 
 period, however short, could be assigned, unless by deed or writing,, 
 signed by the party assigning, or his agent thereunto lawfully author- 
 ized. On the other side Best, Sergeant, argued that the leases men- 
 tioned as requiring to be assigned by writing, must be such leases 
 as are required to be created by deed or writing. "As a lease from 
 year to year could be originally made by parol, there was no reason 
 why it might not be assigned by parol, and the words of the statute 
 would bear this interpretation which was clearly consistent with 
 its general import." But Sir A. M'Donald, C. B., held that the 
 assignment was void for not being by deed or note in writing; and 
 therefore nonsuited the plaintiff. ^^'^ In this country, however, it 
 has been held that a tenancy held by parol may be transferred by 
 parol. The position that a tenancy from year to year could only be 
 conveyed or surrendered by a contract in writing and that a parol 
 agreement for its sale or surrender was void under the statute of 
 frauds was thought untenable. "The tenancy was from year to year, 
 and existed only in parol," said the court, "and if valid in him, it 
 would be strange if he cojild not transfer it in the same way."^''* 
 In another American case the doctrine was laid down generally 
 that a lease for a term less than the statutory period for parol leases, 
 whether written or not, may be surrendered or transferred by oral 
 agreement. "What greater mischief there can be in a verbal sur- 
 render or transfer," says Chief Justice Gibson, "than there is in 
 the verbal constitution of a lease, has not been shown and it is not 
 to be supposed that the legislature intended to establish a distinction 
 without a reason for it. . . . The two English decisions do not 
 bind us as precedents ; and they are too contracted to bind us by their 
 spirit. ... I take it, therefore, a lease for less than three years, 
 whether written or not, may be surrendered or transferred by an 
 oral expression of assent."^ "^ 
 
 There is authority for the view that part performance takes a 
 parol contract of assignment out of the statute of frauds, although 
 such a doctrine has been restricted in some jurisdictions to suits 
 
 "^Dotting V. Martin, 1 Camp. 317, ^"^ Ross v. Schneider, 30 Ind. 423; 
 followed in Preece v. Corrie, 5 Bing. Peters v. Barnes, 16 Ind. 219. 
 24. ^''^McKinney v. Reader, 7 Watts 
 
 (Pa.) 123.
 
 501 BY LESSEE. {§ 443 
 
 in equity. ^^^ Granting that the statute of frauds requires an as- 
 signment of a lease to be in writing, irrespective of the duration of 
 the term, this cannot apply. where the contract has been fully ex- 
 ecuted by the payment of the consideration on the one side, and the 
 delivery and retention of possession on the other. The lessor, who 
 has recognized its validity, which the parties themselves have never 
 questioned, cannot set up the statute against the lessee and still less 
 against his surety.^®^ 
 
 § 442. Where one other than the lessee occupies leased premises 
 during the continuation of the term and pays rent, he is prima facie 
 in as assignee of the term.^"^ While an assignee of a lease is liable 
 on the covenants therein only by reason of privity of estate and not 
 by reason of his. occupation of the premises, an assignment may some- 
 times be inferred in fact by the occupation of the assignee. This 
 was done in a case where premises leased b'y one partner were oc- 
 cupied by his firm, which was held liable on the covenants in the 
 lease.^®^ After a lessee has gone into possession of the demised 
 premises, the occupation of them by a stranger raises a presumption 
 that he is an assignee of the term, and makes him prima facie 
 liable for rent on the privity of estate. ^'^" 
 
 It may be stated as a general rule that where a person other than 
 the lessee enters upon and occupies leased premises or pays the rent, 
 the law infers an assignment to him of the lease. But this pre- 
 sumption may, in either case, be rebutted by proof that there never 
 was, in fact, such an assignment, or that the instrument of assign- 
 ment was invalid.^'^^ The fact of possession is sufficient evidence 
 in the first instance of an assignment when a suit for rent is brought 
 against an alleged assignee. The fact of an assignment is a transac- 
 tion between the defendant and the lessee, of which the plaintifE 
 
 '^Chicago Attachment Co. v. Da- Welsh v. Schuyler, 6 Daly (N. Y.) 
 
 vis &c. Co., 142 111. 171, 31 N. E. 438, 412; Quackenboss v. Clarke, 12 
 
 reversing 33 111. App. 362. Wend. (N. Y.) 555; Astor v. Lent, 
 
 "'Wiley, Estate of, 12 Phila. 6 Bosw. (N. Y.) 612, 617; Mason v. 
 
 (Pa.) 152; Dewey v, Payne, 19 Neb. Breslin, 40 How. Pr. (N. Y.) 436, 
 
 540, 26 N. W. 248. 442; Frank v. New York &c. R. Co., 
 
 "^Ecker v. Chicago &c. R. Co., 8 122 N. Y. 197, 215, 25 N. E. 332; 
 
 Mo. App. 223. Wittman v. Milwaukee &c. R. Co., 
 
 "°Guinzburg v. Claude, 28 Mo. 51 Wis. 89, 8 N. W. 6; Dickinson 
 
 App. 258. ' Co. V. Fitterling, 69 Minn. 162, 71 
 
 ""Williams v. Woodard, 2 Wend. N. W. 1030; Ecker v. Chicago &c. 
 
 (N. Y.) 487. R. Co., 8 Mo. App. 223. 
 
 "^ Cross V. Upson, 17 Wis. 618;
 
 §' 442] ASSIGNMENT OF LEASES. 503 
 
 is not cognizant, but the defendant is. There is no hardship, there- 
 fore, in concluding him by his possession, unless he discloses the true 
 state of his title. "^ It is enough for .the plaintiff to give general 
 evidence from which the assignment may be inferred; payment of 
 rent being prima facie evidence of an assignment of the whole term.^^^ 
 If there be no assignment, the defendant is not liable to the lessor, 
 and under the statute of frauds an assignment must be in writing 
 or it is void. But as the law infers an assignment from certain 
 facts proved, the inference must be of a valid operative assignment, 
 such an one as was sufficient to transfer the term. It is incumbent 
 on the defendant to prove either that there was no assignment, or 
 that it was one void in law.^^^ The presumption of law, where a 
 man is shown to be in possession of leasehold premises, without 
 anything more, is that he is in as assignee of the original tenant."^ 
 Where heirs of a lessee were sued for rent of the leased premises, 
 it was held that the defendants being in possession, the law would 
 refer that possession to a rightful rather than to a wrongful title 
 by supposing the defendants to be privy to the term granted to 
 their father, the original lessee ; and if their possession was referable 
 to some other title, it was for them to show it, for that must be a 
 matter lying within their own knowledge.^^® 
 
 The presumption of a valid assignment could be rebutted by show- 
 ing the occupant of the premises held as under-tenant without even 
 a bare knowledge of the original lease. But after the lessee de- 
 serts the building and abandons the lease, the sub-tenant's continued 
 occupation of the premises with the consent of the owner and pay- 
 ment of rent to him constitutes a surrender of the original lease.^'^^ 
 The presumption of an assignment could also be overthrown by show- 
 ing that the occupant never told the lessors he was holding under 
 the lease, did not mislead them in any way to their injury, and that 
 a written assignment was never made effectual by delivery,^^^ The 
 New York Court of Appeals has intimated that the cases might, 
 
 "' Quackenboss v. Clarke, 12 "'Acker v. Witherell, 4 Hill (N. 
 
 Wend. (N. Y.) 555; Armstrong v. Y.) 112. 
 
 Wheeler, 9 Cow. (N. Y.) 88; Wil- ""Page v. McGlinch, 63 Me. 472; 
 
 liams v. Woodard, 2 Wend. (N. Y.) Doe v. Murless, 6 M. & S. 110; Doe 
 
 487; Bedford v. Terhune, 30 N. Y. v. Williams, 6 B. & C. 41, 13 E. C. 
 
 453. See also Walsh v. Martin, 69 L. 31. 
 
 Mich. 29, 37 N. W. 40. '"" Snyder v. Parker, 75 Mo. App. 
 
 "^2 Phillips Evidence, 150. 529. 
 
 "* Bedford v. Terhune, 30 N. Y. *'« Canale v. Copello, 137 Cal. 22,j 
 
 453. 69 Pac. 698.
 
 503 BY LESSEE. [§ 443 
 
 perhaps, be questioned in so far as they may be said to authorize 
 proof of a wrongful entry in rebuttal of a presumed assignment.^^^ 
 But the suggested limitation has no application in a case where evi- 
 dence is offered to show an occupation conjointly with one of the 
 original lessees and supposedly with his permission. In that case 
 the occupant has a right to go to the jury on the question of fact 
 whether or not he had an assignment of the lease, and assumed any 
 of its obligations,^®'' 
 
 That an assignment of a lease causes a forfeiture does not pre- 
 vent the usual inference arising from occupation. There is no 
 reason why a presumption of an assignment would not arise, even 
 in a proceeding to enforce the forfeiture. The fact that an assign- 
 ment will forfeit the lease is a strong motive for concealing the fact 
 of assignment and the character of the possession of the assignee. 
 Thus the existence of such a condition of forfeiture in the lease is, 
 if anything, an additional reason why a third person in possession 
 should be presumed to be an assignee of the lessee and compelled 
 to explain the character of his possession,^^^ 
 
 § 443. A receiver appointed by a court to take charge of a lessee's 
 property does not thereby become an assignee of the term."- A re- 
 ceiver is merely a ministerial officer of the court, or, as he is some- 
 times called, the hand of the court. The title to the property does 
 not change upon an appointment of a receiver; and if he is required 
 to take property into his custody, such custody is that of the court."^ 
 Speaking of a decree appointing receivers of a railway company, 
 Mr, Justice Wells said: "It had no effect to change the title, or 
 create any lien upon the property. Its purpose, like that of an in- 
 junction pendente lite, was merely to preserve the property until the 
 rights of all parties could be adjudged. The receivers are officers 
 of the court for this purpose and act under its direction and con- 
 ^j.q| "184 gQ^ Qj^ principle, the law seems to be that if a receiver of 
 
 "'Frank v. New York &c. R. Co., R. Co. v. Humphreys, 145 U. S. 82, 
 
 122 N. Y. 195, 215, 25 N. E. 332. 97, 12 S. Ct. 787. Contra United 
 
 ""Day V. Greenebaum, 31 N. Y. States Trust Co. v. Wabash &c. R. 
 
 S. 610, 82 Hun 533. Co., 150 U. S. 287, 14 S. Ct. 86. 
 
 "'Dickinson Co. v. Fitterling, 69 "^ Union Bank v. Kansas City 
 
 Minn. 162, 71 N. W. 1030. Bank, 136 U. S. 223, 10 S. Ct. 1013; 
 
 "- Bell V, American Protective Thompson v. Phenix Ins. Co., 136 
 
 League, 163 Mass. 558, 40 N. E. 857; U. S. 287, 297, 10 S. Ct. 1019. 
 
 Gaither v. Stockbridge, 67 Md. 222, '"* Ellis v. Boston &c. R. Co., 107 
 
 9 Atl. 632, 10 Atl. 309; Quincy &c. Mass. 1, 28,
 
 § 444] ASSIGNMENT OF LEASES. 504 
 
 an insolvent corporation takes possession of its leasehold estates, he 
 is liable only for a reasonable rent during the time that he retains 
 possession; that he does not become an assignee of the term and is 
 not liable on the covenants of the lease.^*^ 
 
 In New York a receiver of an insolvent corporation has vested 
 in him by statute the title of the insolvent, so there are cases in that 
 state in which it is asserted that there is no difference between an 
 assignee and a receiver who takes possession of the leasehold prem- 
 ises.^^^ 
 
 § 444. Where a sheriff, under an execution, sells a term for years, 
 it operates as an assignment at law, and, when he sells a term in pos- 
 session of the debtor, he can put a vendee in possession.^®'^ Upon 
 such a sale, however, he must execute an assignment of the lease, 
 in writing to the purchaser, and if he merely puts the execution 
 creditor in possession, the debtor may recover it again in eject- 
 ment. ^^^ It has been held that it requires only a memorandum 
 of the sale, signed by the officer making the sale, to satisfy the statute,. 
 and his return may constitute a sufficient memorandum,^^^ even 
 though made subsequently to the sale.^^" 
 
 A court will not take jurisdiction in equity to compel a lessee, 
 whose term for years has been sold under an execution, to deliver 
 up to the purchaser the counter-parts of his lease and sub-leases 
 which are recorded. An assignment and sub-leases made by the 
 lessee subsequently to the sale are void and do not constitute a cloud 
 upon the title affording ground for relief in equity. The purchaser 
 at the execution sale stands in the position of an assignee in law of 
 the term for years, with substantially the same right as if it had been 
 voluntarily assigned to him. His remedy at law to enforce his rights 
 as such assignee is plain, adequate and complete.^"^ An execution 
 purchaser of a leasehold interest must take it, if at all, subject to 
 all*the conditions of the lease, whether the same are recorded or not. 
 
 '^Bell v. American &c. League, '^ Doe v. Jones, 9 M. & W. 372; 
 
 163 Mass. 558, 40 N. E. 857. Doe v. Brawn, 5 B. & Aid. 243. 
 
 ^^ Attorney-General v. Life & F. "' Sanborn v. Chamberlin, 101 
 
 Ins. Co., 4 Paige (N. Y.) 224; Booth Mass. 409; Remington v. Linthicum, 
 
 v. Clark, 17 How. (U. S.) 322, 331. 14 Pet. (U. S.) 84, 92; Hanson v. 
 
 "'Taylor v. Cole, 3 Term R. 292 
 McNeil V. Ames, 120 Mass. 481 
 Joslin v. Ervien, 50 N. J. L. 39 
 
 Barnes, 3 Gill & J. (Md.) 359; 
 Barney v. Patterson, 6 H. & J. (Md.) 
 182. 
 
 Borland's Appeal, 66 Pa. St. 470. ""Freeman on Executions, § 299. 
 
 "1 McNeil V. Ames, 120 Mass. 481. 
 
 J.
 
 505 BY LESSEE. [§■ 445 
 
 But he may disclaim all interest tiiider his purchase and avoid 
 further liability on the covenants of the lease.^^^ . 
 
 A purchaser, on foreclosure of a mortgage on a leasehold, becomes 
 an assignee of the lease and therefore liable on the covenant during his 
 enjoyment of the demised premises.^^^ 
 
 These results do not follow unless there has been a sale effecting 
 a change in the ownership of the leasehold. So a decree of sale of 
 a leasehold on a lien judgment does not invest the lienor with a 
 right of entry or with the legal title so as to make him liable on the 
 covenants in the lease.^®* Moreover, it has been held that a pur- 
 chaser at a chancery sale of an unexpired term of a leasehold is 
 not chargeable with the contract rental for the balance of the term. 
 The theory of the court was that money paid by the purchaser should 
 be applied as rent and the original lessee should make up the bal- 
 ance. In stating the reasons for this decision the court said that 
 "The contrary suggestion carries with it its own refutation."^^^ 
 
 § 445. There is a wide distinction in law between an assignee of 
 a lease and a sub-tenant. The former is personally liable to the land- 
 lord for all the covenants and conditions imposed upon the lessee, 
 while the latter is liable only to the lessee, who is alone responsible 
 to the landlord.^^® An underlease vests only a partial estate in the 
 second lessee, a reversion being left in his lessor; whereas, an as- 
 signment transfers the whole interest of the first lessee to the as- 
 signee. The test is whether the grant leaves a reversionary inter- 
 est in the assignor or operates to transfer his entire term. The 
 essential nature of the conveyance is not effected by the particular 
 words employed, and though the instrument purport to be a lease- 
 or demise, it may still be an assignment.^®^ When a lessee assigns 
 his interest in the whole or a part of the demised premises for the 
 residue of the unexpired term, the assignee is substituted in place 
 of the original lessee as tenant. But where the demised premises 
 are let for a part only of the unexpired term, the new tenant is only 
 a sub-lessee, and is not a tenant to the landlord. ^^^ 
 
 "^ Snowden v. Memphis Park ™ Dartmouth College v. Clough, 
 
 Ass'n, 7 Lea (Tenn.) 225. 8 N. H. 22; Sansing v. Risinger, 
 
 ''''State V. Martin, 14 Lea (Tenn.) 2 Tex. App. Civ. Cas., § 713; Krider 
 
 92. v. Ramsay, 79 N. Car. 354. 
 
 "* Merchants' Ins. Co. v. Mazange, "^ Constantine v. Wake, 1 Sweeny 
 
 22 Ala. 168. (N. Y.) 239. 
 
 "= Tradesman Pub. Co. v. Knox- "' Lee v. Payne, 4 Mich. 106. 
 ville &c. Co., 95 Tenn. 634, 32 S. W. 
 1097, 31 L. R. A. 593.
 
 § 445] ASSIGNMENT OF LEASES. 506 
 
 It is well settled that the common law gives the lessor no right 
 of action on any of the covenants of the original lease against the 
 sub-tenant or under-lessee because there is no privity of contract 
 between the lessor and the sub-lessee and because there is no privity 
 of estate.^ ^® A sub-lessee is not in a general sense the tenant of the 
 original lessor. ^"° There is no privity between the landlord and 
 sub-tenant, arising merely from that relation as will subject the sub- 
 tenant to liability for the debt of the tenant for rent.^''^ At com- 
 mon law a landlord could not sue a sub-lessee upon the covenants 
 of the original lease, and a statute allowing a landlord to enforce 
 his lien by attachment against the sub-tenant, has been held not 
 to change the common law rule about suing on covenants.^"^ 
 
 The Missouri statute gives a lien and attachment against an 
 under-tenant or sub-lessee as well as against the original lessee and 
 to that extent the common law is repealed,^'''* but the statute cannot 
 be fairly construed to give the landlord the right to sue the sub-lessee 
 in an action at law upon the covenants of the lease to the tenant 
 when no lien is sought against the crop growTi on the premises and 
 no right of attachment exists. It does not follow that because a 
 lien or attachment is given against a sub-lessee that an action at law 
 is given in all cases. ^"^ 
 
 In case the original lessee is insolvent and unable to pay the rent, 
 the question then arises whether the under-lessee should be per- 
 mitted to enjoy the profits and possession of the estate without ac- 
 counting for the rent to the original lessor. There would be no 
 remedy at law. But courts of equity will relieve the lessor and will 
 direct a payment of rent to the lessor upon a bill making the original 
 
 1"' Robinson v. Lehman, 72 Ala. ^'Gibson v. Mullican, 58 Tex. 
 
 401; St. Joseph &c. R. Co. v. St. 430; Harvey v. McGrew, 44 Tex. 
 
 Louis &c. R. Co., 135 Mo. 173, 36 412; Krider v. Ramsay, 79 N. Car. 
 
 S. W. 602; Grundin v. Carter, 99 354. 
 
 Mass. 15; Ashley v. Young, 79 Miss. ="= St. Joseph &c. R. Co. v. St. 
 
 129, 29 So. 822; McFarlan v. Wat- Louis &c. R. Co., 135 Mo. 173, 36 
 
 son, 3 N. Y. 286; Holford v. Hatch, S. W. 602. 
 
 1 Doug. 183, 187. ^''^Rev. St. 1899, §§ 6376, 6384, 
 
 ^"''Gray v. Rawson, 11 111. 527; 6388. 
 
 Giddings v. Felker, 70 Tex. 176, 7 ""* Hicks v. Martin, 25 Mo. App. 
 
 S. W. 694; 2 Taylor on Landlord 359; Hulett v. Stockwell, 27 Mo. 
 
 and Tenant (8th ed.), § 448; 1 App. 328; Garroutte v. White, 92 
 
 Woodfall on Landlord and Tenant, Mo. 237. 
 
 p. 265; 1 Washburn Real Prop. (5th =»' St. Joseph &c. R. Co. v. St. 
 
 ed.), p. 546, § 5; Williams Real Louis &c. R. Co., 135 Mo. 173, 36 
 
 Prop., 336. S. W. 602.
 
 507 BY LESSEE. [§ 446 
 
 lessee and the under-tenant parties. For if the original lessee were 
 compelled to pay the rent, he would have a remedy over against the 
 under-tenant.^"^ 
 
 § 446. An underlease for the whole term is an assignment. Tech- 
 nical terms or special words are not necessary to an assignment; 
 any language which shows the intention of the parties to transfer 
 the property from one to the other is sufficient. The form of the in- 
 strument being immaterial, if it has the legal effect to pass to another 
 the lessee's interest in the whole or in any part of the demised prem- 
 ises for his entire term, or the remainder of his term, it is an as- 
 signment.^"^ Although by the under-lease, a rent exceeding the origi- 
 nal rent is reserved, and it is expressly stipulated that the so-called 
 under-tenant shall hold as tenant of his grantor, he is nevertheless 
 in law the tenant of the original lessor.^°^ If a lessee, by any instru- 
 ment whatever, whether reserving conditions or not, parts with his 
 entire interest, he has made a complete assignment; if he has trans- 
 ferred all his interest in a part of the premises he has made an as- 
 signment pro tanto.^^^ A sub-tenant is one who leases all or a part 
 of rented premises from the original lessee for a term less than that 
 held by the latter, and in that case the lessee retains a reversionary 
 interest. In such cases at common law, a sub-tenant's property was 
 subject to distress, while he was not liable on the contract between 
 lessor and lessee.^" There is a diversity between the whole estate 
 in part, and part of the estate in the whole or of any part.^" The 
 
 ^'^'l Story's Eq. 687; Forrest v. 2 Ashm. (Pa.) 131, 138; Langford 
 
 Durnell, 86 Tex. 647, 26 S. W. 481. v. Selmes, 3 Kay & J. 220, 229; 
 
 '"^ Hicks V. Downing, 1 Ld. Raym. Palmer v. Edwards, Doug. 187, n.; 
 
 99; Beardman v. Wilson, L. R., 4 Doe v. Bateman, 2 B. & Aid. 168; 
 
 C. P. 57; Bedford v. Terhune, 30 Pluck v. Digges, 5 Bligh (N. S.) 31, 
 
 N. Y. 453; Boston &c. R. Co. v. Bos- 65, Cro. Jac, 411; Com. Dig., Debb, 
 
 ton &c. R. Co., 65 N. H. 393, 452, 23 E. But see Post v. Kearney, 2 N. 
 
 Atl. 529; Trustees &c. v. Streeter, Y. 394; Martin v. O'Conner, 43 
 
 64 N. H. 106, 5 Atl. 845; Dartmouth Barb. (N. Y.) 514, 522. 
 
 College V. Clough, 8 N. H. 22, 29. ^^o Wheeler v. Hill, 16 Me. 329; 
 
 ="'Wollaston v. Hakewill, 3 M. & Krider v. Ramsay, 79 N. Car. 354; 
 
 G. 297, 322, 42 E. C. L. 161; Par- Forrest v. Durnell, 86 Tex. 647, 26 
 
 menter v. Webber, 8 Taunt. 593; S. W. 481; Dartmouth College v. 
 
 Bac. Abr. Leases I, 3. Clough, 8 N. H. 22; 1 Chitty's PI. 36. 
 
 '•"•Woodhull v. Rosenthal, 61 N. Contra. Fulton v. Stuart, 2 Ohio 
 
 Y. 382, 391; Bedford v. Terhune, 30 215. 
 
 N. Y. 453, 457; Boston &c. R. Co. =" McNeil v. Kendall, 128 Mass. 
 
 V. Boston &c. R. Co., 65 N. H. 393, 245. 
 452, 23 Atl. 529; Lloyd v. Cozens,
 
 §• 446] ASSIGNMENT OF LEASES. o08 
 
 distinction between an assignment and a sub-lease depends solely upon 
 the quantity of interest which passes and not upon the extent of the 
 premises transferred. So the transfer of part of the premises for 
 the entire term is an assignment and not a sub-lease.^^^ 
 
 Where a tenant at will from year to year lets a portion of the 
 premises held by him to another as his tenant at will, the latter is 
 an under-tenant and not an assignee. And the same result will fol- 
 low although the under-tenant becomes a tenant from year to year 
 by continued occupation and payment of rent;^^^ he would not be 
 technically an assignee because the first tenant had no assignable 
 interest.^^* 
 
 But it is also well settled that the same instrument may in law 
 create an assignment of the term, as between the original lessor and 
 the assignee, and also the relation of landlord and tenant between 
 the parties to the second demise. As between the original lessee 
 and his lessee, even though the original lessee demises the whole 
 term, if the parties intend a lease, the relation of landlord and ten- 
 ant as to all but strict reversionary rights will arise between them, 
 notwithstanding the original lessee is divested of all reversionary 
 rights, and his lessee is liable as assignee.^^^ According to one view, 
 a mere reservation of a new rent, or of a right of reentry for a breach 
 of any of the conditions of the lease, will not change the legal rela- 
 tions of the parties, and the introduction of covenants into the instru- 
 ment does not change the legal effect of giving up the reversion.^^* 
 The right of reentry is not an estate or interest in land, nor does 
 it imply a reservation of a reversion. It is a mere chose in action. 
 
 2" Cook V. Jones, 96 Ky. 283. 28 S. Cleveland &c. R. Co., 45 Ind. 281; 
 
 W. 960; Den v. Alexander, 4 Dev. & Lee v. Payne, 4 Mich. 106; Lloyd 
 
 B. (N. Car.) 40; Crusoe v. Bugby, v. Cozens, 2 Ashm. (Pa.) 131, 138; 
 
 3 Wils. 234, 2 W. Bl. 766; Hicks v. Adams v. Beach, 1 Phil. (Pa.) 178; 
 
 Martin, 25 Mo, App. 359; St. Joseph Prescott v. De Forest, 16 Johns. (N. 
 
 &c. R. Co. V. St. Louis &c. R. Co., Y.) 159; Bedford v, Terhune, 30 
 
 135 Mo. 173, 26 S. W. 602. N. Y. 453. 
 
 "" Curtis v. Wheeler, 1 Mood. & M. ™ Craig v. Summers, 47 Minn. 
 
 493; Pleasant v. Benson, 14 East 189, 49 N. W. 742; Smiley v. Van 
 
 234, 237; Peirse v. Sharr, 2 M. & R. Winkle, 6 Cal. 605; St. Joseph &c. 
 
 418; Austin v. Thomson, 45 N. H. R. Co. v. St. Louis &c. R. Co., 135 
 
 113. Mo. 173, 36 S. W. 602, citing Beard- 
 
 ^*Whittemore v. Gibbs, 24 N. H. man v. Wilson, L. R., 4 0. P. 57; 
 
 484; 1 Cruise 244; 4 Kent 114. Doe v. Bateman, 2 B. & Aid. 168; 
 
 ^"Stewart v. Long Island R. Co., Wollaston v. Hakewill, 3 Scott N. 
 
 102 N. Y. 601, 8 N. E. 200; Craig R. 593, 616; Sexton v. Chicago Stor- 
 
 V. Summers, 47 Minn. 189, 49 N. W. age Co., 129 111. 318, 21 N. E. 920; 
 
 742; Indianapolis &c. Union Co. v. Blumenberg v. Myres, 32 Cal. 93.
 
 509 EIGHTS AND LIABILITIES OF PARTIES. [§ 447 
 
 When enforced, the grantor is in through the breach of condition 
 and not by the reverter.^^^ 
 
 In a case arising before the Supreme Judicial Court of Massachu- 
 setts, a lessee for years demised the premises to another for a term 
 equal to the whole of the unexpired term of the original lease, by 
 ■ a lease containing covenants by the lessee to pay rent at an in- 
 , creased rate and providing that the lessor might enter and take pos- 
 session for breach of covenant, axid that the lessee would quit and 
 deliver up the premises to the lessor at the end of the term. In 
 holding that this instrument was not an assignment Colt, J., said: 
 "There is no reference in it to the original demise and no indica- 
 tion of an intention on the part of the sub-lessor to part with his 
 whole interest in the leasehold estate or to lose control of it as lessor. 
 The rent reserved was larger in amount than that reserved in the 
 original lease and the lessee covenants to deliver up possession at 
 the end of the term. But what is more in point, the right is re- 
 served to the lessor to enter and expel the lessee for non-payment 
 of rent. It is clear that the parties to this lease intended to create 
 the relation of landlord and tenant between themselves. And it 
 is the duty of the court to give effect to this intention, unless con- 
 trolled by some positive rule of law."^^^ The law is settled in Massa- 
 chusetts that if the smallest reversionary interest is retained by 
 the lessee, the tenant takes as sub-lessee and not as assignee.^^^ In 
 Iowa a doctrine similar to that of Massachusetts is in force. If the 
 sub-lease reserves new rents and the sub-tenant covenants to deliver 
 possession to the lessee and not to the original landlord, these 
 covenants take from it the character of an assignment. As be- 
 tween the parties there is a reversionary interest in the lessee and 
 not in the original landlord. ^^^ 
 
 Rights and Liabilities of Parties. 
 
 § 447. The express covenants in a lease continue to be binding- 
 upon the covenantor notwithstanding- his assignment of the lease.--^ 
 
 '"Tied. Real Prop., § 277; Sexton '^^ Patten v. Deshon, 1 Gray 
 
 V. Chicago Storage Co., 129 111. 318, (Mass.) 325; McNeil v. Kendall, 128 
 
 21 N. E. 920; Schulenberg v. Harri- Mass. 245. See also Brattle Square 
 
 man, 21 Wall. (U. S.) 44; Hooper Church v. Grant, 3 Gray (Mass.) 
 
 V. Cummings, 45 Me. 359; Southard 142, 147. 
 
 V. Central R. Co., 26 N. J. L. 13, 21; "° Collamer v. Kelley, 12 Iowa 319. 
 
 St. Joseph &c. R. Co. v. St. Louis Relying on Post v. Kearney, 2 N. Y. 
 
 &c. R. Co., 125 Mo. 173, 36 S. W. 602. 394. 
 
 "'Dunlap V. Bullard, 131 Mass. -' Barhydt v. Burgess, 46 Iowa 
 
 1^1' 476; Brosman v. Kramer, 135 Cal.
 
 § 447] ASSIGNMENT OF LEASES. 510 
 
 The reason of the rule is, that although by the assignment the priv- 
 ity of estate between lessor and lessee is terminated, there still re- 
 mains the privity of contract between them, created by the lease, 
 which is not affected by the assignment, although made with the as- 
 sent of the lessor, and the lessee still continues liable on his cov- 
 enant by virtue of this privity of contract.^^^ If the covenant to 
 pay rent be express the lessee is bound so long as the term continues ; 
 but if implied, he is discharged whenever he is divested of the 
 estate.^^^ "Where there is a covenant to pay rent, the lessee can- 
 not terminate his liability by an assignment of the lease, although 
 lessor may accept rent of the assignee or give his assent to the as- 
 signment.^^* If, however, there be no express contract to pay the 
 rent, the lessee's liability will cease after the lessor consents to 
 an assignment, and such assent may be inferred from his accepting 
 rent of the assignee, or other act recognizing him as his tenant.^^^ 
 That is because the privity of estate is destroyed, and as there is 
 no privity of contract between them, there is no longer any obliga- 
 tion, express qr implied, on the lessee. But in order to destroy this 
 privity of estate between lessor and lessee, there must be the con- 
 currence of the lessor. It is not correct to state, as a rule of law, 
 that a lessee who has not made an express covenant to pay rent 
 may discharge himself to all future responsibility by assigning the 
 lease."226 
 
 36, 66 Pac. 979; Wineman v. Phil- v. Smith, 131 Mass. 510; Peers v. 
 
 lips, 93 Mich. 223, 53 N. W. 168; Consolidated Coal Co., 59 111. App. 
 
 Jones V. Parker, 163 Mass. 564, 40 595; Port v. Jackson, 17 Johns. (N. 
 
 N. E. 1044; Whetstone v. McCart- Y.) 239. In a case where a lease 
 
 ney, 32 Mo. App. 430. signed by the lessees was never de- 
 
 -" Garner v. Byard, 23 Ga. 289, livered to them but was assigned 
 
 68 Am. Dec. 527; Barhydt v. Bur- before delivery and delivered di- 
 
 gess, 46 Iowa 476; Oswald v. Fra- rectly to the assignee, the lessees 
 
 tenburgh, 36 Minn. 270, 31 N. W. were held not to be liable on the 
 
 173. covenants in the lease. Stetson v. 
 
 =" Barhydt v. Burgess, 46 Iowa Briggs, 114 Cal. 511, 46 Pac. 603. 
 
 476; Fanning v. Stimson, 13 Iowa -* Cones v. Barnes, 45 Mo. App. 
 
 42; Kimpton v. Walker, 9 Vt. 191; 590; Fisher v. Milliken, 8 Pa. St. 
 
 Holliday v. Noland, 93 Mo. App. Ill, 120; Shaw v. Partridge, 17 Vt. 
 
 403; Marsh v. Brace, Cro. Jac. 334; 626; Mills v. Auriol, 1 H. Bl. 433; 
 
 Brett V. Cumberland, Cro. Jac. 521; Pfaff v. Golden, 126 Mass. 402. 
 
 Patten v. Deshon, 1 Gray (Mass.) =^ Jones v. Barnes, 45 Mo. App. 
 
 325, 330; Farrington v. Kimball, 590; Whetstone v. McCartney, 32 
 
 126 Mass. 313; Wall v. Hinds, 4 Mo. App. 430. 
 
 Gray (Mass.) 256; Blake v. Sander- -^Consumers' Ice Co. v. Bixler, 
 
 son, 1 Gray (Mass.) 332; Sanders 84 Md. 437, 447, 35 Atl. 1086, per_ 
 
 V. Partridge, 108 Mass. 556; Mason Boyd, J.
 
 511 EIGHTS AND LIABILITIES OF PARTIES. [§' 447 
 
 "A liability of the lessee arising from his express contract is per- 
 manently fixed during the whole term so that no act of his own can 
 absolve him from the lessor's demands in respect to it."^^^ The 
 mere assignment of a lease by a lessee and acceptance of rent by 
 the lessor from the assignee does not preclude the lessor from main- 
 taining an action against the lessee on his covenant to pay rent 
 and taxes.^^^ It is a settled rule that an action of covenant will 
 lie on a covenant in a deed against a lessee notwithstanding a third 
 person be at the time the actual tenant, recognized as such 
 by the lessor; and an action lies against the lessee's executors, not- 
 withstanding he may have assigned in his lifetime, and the rent 
 accrues subsequent to his death. The reason given for the rule is 
 this, that the privity of contract of the testator is not determined 
 by his death, and the executor shall be charged with all his con- 
 tracts so long as he has assets.^^^ 
 
 The lessor may pursue either lessee or assignee, or both at the 
 same time, though he will be entitled to but a single satisfaction.^^** 
 After an assignment of the lease, the lessor has a double and several 
 security for the payment of his rent, either or both of which he 
 may pursue till satisfaction is obtained. Therefore, the receipt of 
 rent from the assignee of the lessee does not amount to a novation 
 or release of the lessee, but is the assertion of a right which accrued 
 to the lessor as an incident to the assignment.-^^ Where a lessor sues 
 
 =='Sutliff V. Atwood, 15 Ohio St. Cro. Car. 188; Pitcher v. Tovey, 4 
 
 186; Smith v. Harrison, 42 Ohio St. Mod. 71, 76; Auriol vT Mills, 4 Term 
 
 180; Missouri &c. Co. v. Richardson, R. 94, 98, 99. 
 
 57 Neb. 617, 78 N. W. 273. "=> Carley v. Lewis, 24 Ind. 23; 
 
 =^* Wilson V. Gerhardt, 9 Colo. 585, Van Rensselaer v. Platner, 2 Johns. 
 
 17 Pac. 705; Rector v. Hartford De- Cas. (N. Y.) 17. 
 
 posit Co., 190 111. 380, 60 N. E. 528, ^ Whetstone v. McCartney, 32 Mo. 
 
 affirming 92 111. App. 175; Harris App. 430; Taylor v. DeBus, 31 Ohio 
 
 v. Heackman, 62 Iowa 411, 17 N. W. St. 468; Sutliff v. Atwood, 15 Ohio 
 
 592; Wall v. Hinds, 4 Gray (Mass.) St. 186; Lodge v. White, 30 Ohio St. 
 
 256; Rees v. Lowry, 57 Minn. 381, 569; Port v. Jackson, 17 Johns. (N. 
 
 59 N. W. 310; Adams v. Burke, 21 Y.) 239, 479; Boot v. Wilson, 8 Bast 
 
 R. I. 126, 42 Atl. 515; Pfaff v. Gold- 311, n.; Arthur v. Vanderplank, 7 
 
 en, 126 Mass. 402; Hunt v. Gardner, Mod. 198; Thursby v. Plant, 1 
 
 39 N. J. L. 530; Edwards v Spald- Saund. 237. 
 
 ing, 20 Mont. 54, 49 Pac. 443; Ma- '"Taylor v. DeBus, 31 Ohio St. 
 
 son V. Smith, 131 Mass. 510, 511; 468; Stone, Succession of, 31 La. 
 
 Edwards v. Spalding, 20 Mont. 54, Ann. 311; Grommes v. St. Paul 
 
 49 Pac. 443; Barnard v. Godscall, Trust Co., 147 111. 634, 648, 35 N. E. 
 
 Cro. Jac. 309; Brett v. Cumberland, 820; Laird v. Mantonya, 83 111. App. 
 
 Cro. Jac. 521; Bachelour v. Gage, 327.
 
 § 448] ASSIGNMENT OF LEASES. 512 
 
 an assignee of the lessee, the lease and not the assignment is the basis 
 of the recovery, and it is not a fatal omission to fail to file a copy 
 of the assignment,^^^ A previous suit by lessor against the original 
 lessee upon which nothing has been collected does not bar an action 
 against the assignee.^^^ 
 
 § 448. The contract of the original lessee continues in force unless 
 the lessor accepts the assignee as sole tenant and absolves the original 
 lessee.^^* In order that an assignment shall discharge a lessee from 
 express covenants, it is essential to show that there was some new 
 leasing, or some understanding that the lessee be released, or some 
 acts from which an intention to discharge the lessee can be in- 
 ferred.^^^ Mere acceptance of rent from an assignee does not dis- 
 charge the lessee from an express covenant. ^^^ The recovery in an 
 action against an assignee, not being for the full amount of the 
 rent reserved, but only for the value of his own use and occupation, 
 does not, beyond the satisfaction so received, affect the rights or the 
 remedies of the lessor upon the covenants of the lease.^^'^ An ex- 
 press covenant to pay rent can be discharged by no mere collateral 
 matter, and by nothing short of a mutual agreement.-^^ "Doubt- 
 less it is competent," said Chief Justice Bigelow, "for a lessor to 
 enter into such stipulations with an assignee as to accept him as 
 sole tenant and to absolve the original lessee from his contract. But 
 an intent to create a new contract and to annul the lease as against 
 the original lessee must be clearly shown. "-^^ However, the law 
 does not demand direct proof of an agreement in any form to estab- 
 lish such a discharge of the lessee. Acts of the parties, or circum- 
 stances inconsistent with any other conclusion, are sufficient to estab- 
 lish the fact of the surrender of the property by the lessee and his 
 discharge by the lessor, and the acceptance of the assignee as tenant 
 in his place. The fact that the lease provided that the lessee could not 
 assign it without the assent of the lessor and his refusal to give 
 
 ='''' Hardison V. Mann, 20 Ind. App. well, 127 Mass. 242; Burnham v. 
 
 404, 50 N. E. 899. Hubbard, 36 Conn. 539; Brosnan v. 
 
 '^^ Le Gierse v. Green, 61 Tex. 128. Kramer, 135 Cal. 36, 66 Pac. 979. 
 
 =5* Laird v. Mantonya, 83 111. App. "' Deane v. Caldwell, 127 Mass. 
 
 327. 242; Inches v. Dickinson, 2 Allen 
 
 ^^'Wineman v. Phillips, 93 Mich. (Mass.) 71; Dwight v. Mudge, 12 
 
 223, 53 N. W. 168; Stewart v. Gray (Mass.) 23. 
 
 Sprague, 71 Mich. 50, 57, 38 N. W. "* Burnham v. Hubbard, 36 Conn. 
 
 673; Bailey v. Wells, 8 Wis. 141. 539. 
 
 =^« Harris v. Heackman, 62 Iowa ===» Way v. Reed, 6 Allen (Mass.) 
 
 411, 17 N. W. 592; Deane v. Cald- 364, 369.
 
 513 RIGHTS AND LIABILITIES OF PARTIES. [§ 449 
 
 such consent does not require a different conclusion. It is competent 
 for the lessor to waive this condition by subsequent acts.^*° On the 
 contrary, the lessee may by express contract continue his liability 
 after an assignment and this would necessarily negative any infer- 
 ence that the assignee was accepted as a new tenant in place of the 
 lessee. It is entirely within the province of the contracting parties 
 to agree that the lessee shall remain as before principally and per- 
 sonally liable for the rentals, notwithstanding the substitution of 
 another party as tenant.^*^ 
 
 The effect of the assent by a lessor to a second assignment for a 
 different use and occupation from that specified in the original lease 
 would be to create a new tenancy and the original lessee's liability 
 for rent would cease while such tenancy continued. It was contended 
 by counsel for the lessor that the covenant to use the premises for 
 a particular purpose was for the benefit of the lessor and could be 
 waived. This might be true while the lessee was in occupation; but 
 after he had parted with the estate, though still liable on his cov- 
 enants to pay rent, a new contract could not be made in regard to 
 the purpose for which the premises should be used, without his con- 
 sent, given in such manner and under such circumstances as to 
 show that he was still to be held liable under his lease.^'*- 
 
 Though it appears that the lessee has assigned his lease for the 
 remainder of the term to another party, yet it is competent for him 
 to institute an action for any damages accruing to him by reason of 
 a breach of the covenants of the lease by the lessor, while he held 
 the lease, and to recover such damages it is proper that the lease be 
 exhibited in evidence.^*^ 
 
 § 449. A lessee is liable as surety for the assignee. Though both 
 lessee and assignee are liable to the lessor, yet the ultimate liability 
 as between themselves, cannot depend upon which of tlie two he 
 may, from interest or caprice, elect to pursue to the satisfaction 
 of his demand. The estate is the consideration which the lessor 
 furnished for his demand for rent, and from which it was expected 
 to issue. The privity of estate between the lessor and the lessee, 
 and upon which the personal liability of the lessee is founded, hav- 
 
 ^*° Colton v. Gorham, 72 Iowa 324, =*= Fifty Associates v. Grace, 125 
 
 33 N. W. 76. Mass. 161. 
 
 ="Latta v. Weiss, 131 Mo. 230, 32 ^"Cleveland &c. R. Co. v. Wood, 
 
 S. W. 1005. 189 111. 352, 59 N. E. 619, affirming 
 
 90 111. App. 551. 
 
 Jones L. & T.— 33
 
 §• 450] ASSIGNMENT OF LEASES. 51i 
 
 ing ceased, and by the assignment passed to the assignee, the latter, 
 as between himself and the lessee, in the absence of any agreement, 
 is to be regarded as primarily liable for the rent, and the personal 
 liability of the lessee us collateral thereto. The lessee is liable in the 
 nature of a surety for the assignee during the continuance of his 
 interest, and although the assignee is not bound by an express prom- 
 ise, yet the law imposes a duty upon him to perform the covenants 
 while he enjoys the estate.^** So it was urged that the lessee was 
 liable only in case the lessor failed to get the rent out of the as- 
 signee and if the property of the assignee was sufficient and the lessor 
 allowed it to be taken out of his reach after being notified to proceed 
 against it, the lessee would be discharged from liability.^*^ 
 
 § 450. The duration of a term after an assignment does not at all 
 affect the obligation of a lessee upon his express covenant. By the 
 
 common law, the liability of the lessee, on his express covenant to 
 pay rent during the term, attaches to him and to his personal repre- 
 sentatives, as long as assets remain in their hands, whether the term 
 of the lease is for one year or for many, with or without a covenant 
 for renewal, or in perpetuity. !N'umerous cases are reported, where 
 the lease was perpetual or renewable forever, in which the same 
 liability was found as in leases for a short term of years. Indeed, 
 it seems, from the nature of the covenant itself, no distinction can 
 be made on account of the duration of the term; it is a personal 
 engagement to pay rent during the term; as long as assets can be 
 found, the obligation may be enforced. The law imposes no limit 
 upon the time within which covenants to pay money must mature. 
 This is left entirely to the discretion of the contracting parties. 2*® 
 The force of an express covenant to pay rent, by construction of 
 the whole instrument, may be modified and limited by other cov- 
 enants. In construing one lease, the court found that the lessee, 
 after the assignment of the term, was not liable under a particular 
 covenant for the payment of rent after a reappraisement. In de- 
 termining this question the court looked to the relations and interests 
 which the respective parties had in the subject-matter, and con- 
 
 =«Sutliff V. Atwood, 15 Ohio St. 7 M. & W. 517, 530; Woolveridge v. 
 
 186; Main v. Feathers, 21 Barb. (N. Steward, 1 Cr. & M. 644, 659. 
 
 Y.) 646; Latta v. Weiss, 131 Mo. "=Latta v. Weiss, 131 Mo. 230, 240, 
 
 230, 32 S. W. 1005; Smith v. Peat, 32 S. W. 1005. 
 
 9 Exch. 161; Burnett v. Lynch, 5 =^ Taylor v. DeBus, 31 Ohio St. 
 
 B. & C. 589; Humble v. Langston, 468.
 
 515 EIGHTS AND LIABILITIES OF PARTIES. [§ 451 
 
 eluded that the assignees in possession were the proper parties to 
 act in the reappraisement.-*'^ 
 
 § 451. In case a lessee has been held to his liability for rent after 
 an assignment, he will be entitled to recover the rent from his as- 
 signees.^*^ Where a lessee haa been compelled to pay damages to the 
 lessor for breach of the covenants of the lease while his assignee is 
 in possession, he can maintain an action against the assignee for 
 neglect to perform the covenants, whereby the lessee suffered dam- 
 ggg_249 rp-j^g effect of the assignment is that the lessee becomes a 
 surety to the lessor for the assignee, to pay the rent and perform the 
 covenants running with the estate, and the surety after paying the 
 debt, or discharging the obligation to which he is liable, has his 
 remedy over against the principal.^^" In a subsequent case Chief 
 Justice Cockburn, while conceding that the assignee might he held 
 on the ground of the implied contract, was of the opinion that the 
 liability of the assignee might be put on another and preferable 
 ground, namely, that when one person is compelled to pay damages 
 for the legal default of another, he is entitled to recover, from the 
 person by whose default the damage was occasioned, the money so 
 paid, and that it was a matter of indifference whether the liability 
 rested on an implied contract or on an obligation imposed by law; 
 it was a duty the law enforces.^^^ In case either of these grounds 
 are adopted as the basis on which a lessee may maintain an action 
 against an assignee, it is clear that he can do so only after he has 
 paid the lessor for breach of the covenants of the lease by the as- 
 signee. If he is a surety, then he must pay the debt for which he is 
 liable before he can recover of the principal.^ ^^ If it is a debt im- 
 posed upon him by the default or act of the assignee it must of 
 course be discharged before the liability of the assignee accrues.^^' 
 This right of action in the lessee is not restricted to his immediate 
 assignee, but is available against any subsequent one who accepts 
 the estatc^s-i 
 
 =*' Worthington v. Hewes, 19 Ohio "' Moule v. Garrett, L. R., 7 Exch. 
 
 St. 66. 101, affirming L. R., 5 Exch. 132. 
 
 ^*^ Patten v. Deshon, 1 Gray ^- Hoyt v. Wilkinson, 10 Pick. 
 
 (Mass.) 325; Farrington v. Kim- (Mass.) 31. 
 
 ball, 126 Mass. 313; Mason V. Smith, ==^ Farrington v. Kimball, 126 
 
 131 Mass. 510. Mass. 313. 
 
 =" Burnett v. Lynch, 5 B. & C. 589. ==* Wolveridge v. Steward, 1 Cr. 
 
 ^^^ Wolveridge v. Steward, 1 Cr. & M. 644, 660; Moule v. Garrett, L. 
 
 6 M. 644, 660; Humble v. Langston, R., 5 Exch. 132, L. R., 7 Exch. 101; 
 
 7 M. & W. 517, 530. Farrington v. Kimball, 126 Mass. 
 
 313; Mason v. Smith, 131 Mass. 510.
 
 I 451] ASSIGXilEXT OF LEASES. 516 
 
 But whether the lessee may recover from his first assignee such 
 sums as he has been obliged to pay, arising out of the default of a 
 second assignee to whom the first assignee has assigned all his inter- 
 est, presents a very different question, in the absence of an express 
 assumption by the first assignee. The implied promise to perform 
 the duty imposed on him by the acceptance of the assignment must 
 be limited to the time while he holds the estate under the assign- 
 ment and while by virtue of his privity of estate with the lessor, 
 he is liable to him for the performance of the covenants. Such 
 promise cannot include the payments of any sums, except those 
 which as assignee he assumes, and for which, when he assigns the 
 lease, he is no longer liable to the lessee.^^^ One in by mesne as- 
 signment is under an obligation to indemnify the original lessee 
 against breaches of covenant in the lease, committed during the 
 continuance of his own tenancy, but not for any subsequent breach.^^^ 
 
 But in case the assignment is in direct violation of the terms of 
 the lease and the lessors have not consented or done any act which 
 would operate as a waiver, the assignee would be liable to his as- 
 signor for rent even before the latter had paid the rent to the 
 original lessor. The assignee is not in a position to deny such 
 liability until he has made some arrangement with the original 
 lessors rendering the assignment valid. No relation of landlord 
 and tenant exists between the assignee and the original lessors 
 until the condition against assignment has been waived.^^^ 
 
 An express covenant by the assignee to repair would enable the 
 assignor to maintain an action against him for failure to repair 
 even before the assignor himself had been made liable over to the 
 lessor. In the case where this decision was made the leased prem- 
 ises were a turnpike road and the lessee was liable for accidents 
 occurring from the disrepair of the road.-^^ 
 
 § 452. When the covenant to pay rent is implied in law, accept- 
 ance of rent directly from an assignee will discharge the original 
 lessee.-"^ If the lessee's obligation to pay rent is not founded upon 
 an express agreement but is only implied in law from privity of 
 
 ==' Mason v. Smith, 131 Mass. 510. =^" Darmstaetter v. Hoffman, 120 
 
 2=" Brinkley v. Hambleton, 67 Md. Mich. 48, 78 N. W. 1014. 
 
 169, 177, 8 Atl. 904; Burnett v. =^ Jouitt v. Lewis, 4 Litt. (Kj-.) 
 
 Lynch, 5 B. & C. 589; Moule v. Gar- 160. 
 
 rett, L. R., 5 Exch. 132, L. R., 7 ==" Marsh v. Brace, Cro. Jac. 334; 
 
 Exch. 101. Stimmel v. Waters, 2 Bush (Ky.) 
 
 282.
 
 517 RIGHTS AND LIABILITIES OF PARTIES. [§ 453 
 
 estate between the parties, the assignment of the lease and surrender 
 of possession to the assignees, with the consent of the lessor, to be 
 implied from his acceptance of rent from the new tenant, extinguishes 
 the privity of estate between the parties, and the consequent implied 
 liability of the lessee to pay rent. So, where tenants holding over 
 from year to year assign an estate and the assignee is accepted as a 
 tenant by the landlords, the original tenant ceases to be liable for rent 
 because he was only liable on an implied promise raised in law by his 
 occupation.^^" 
 
 In another case a reservation of rent was followed by the clause, 
 "the said lessees well and truly keeping and performing their part of 
 these presents to be by them performed as aforesaid." This was not 
 an express covenant to pay rent, but only an implied one, so that the 
 original lessee was not liable for rent after an assignment of the 
 lease. These words are not so strong as the words "yielding and pay- 
 ing," which by the better view do not create an express covenant.^'^^ 
 
 § 453. A surety for a lessee is not discharged from liability on the 
 express covenants of the lease by an assignment to any greater extent 
 than the lessee himself would be discharged. A contract of guaranty 
 presupposes another and original contract, to which it is collateral; 
 it is an undertaking to answer for the performance of some contract 
 of another. A failure to pay rent would, even after an assignment 
 of a lease, be the default of the lessees, and the sureties would be 
 liable as their guarantors. ^^^ If the lease provides that the lessee 
 shall not assign or sub-let without written consent, there is an implied 
 understanding that with such consent there may be an assignment or 
 sub-letting, and the sureties are bound to know this when they exe- 
 cuted their guaranty. Hence it would not operate to discharge them 
 from their liability that the lessors should give such a written con- 
 sent. That consent having been obtained at any time, it did not mat- 
 ter whether the lessees themselves sub-let or through an agent, nor did 
 it matter that the agent was the lessor himself.-"^ A material altera- 
 tion in the relation of the original parties to each other, without the 
 consent of the. surety, will, however, operate as a discharge, as if the 
 
 "-«» Lodge V. White, 80 Ohio St. 569. Greene, 13 R. I. 350; Morgan v. 
 
 =" Fanning v. Stimson, 13 Iowa 42. Smith, 70 N. Y. 537, 544; Way v. 
 
 ^=Dietz v. Schmidt, 27 111. App. Reed, 6 Allen (Mass.) 364; Hunt v. 
 
 114; Bradley v. Walker, 93 111. App. Gardner, 39 N. J. L. 530; Damb v. 
 
 609; Parnham v. Monroe, 35 111. Hoffman, 3 E. D. Smith (N. Y.) 361. 
 
 App. 114; Oswald v. Fratenburgh, 36 ="^ Morgan v. Smith, 70 N. Y. 537; 
 
 Minn. 270, 31 N. W. 173; Almy v. Stein v. Jones, 18 111. App. 543.
 
 §§ 454, 455] ASSIGNMENT OF LEASES. 518 
 
 lessor enlarges the time for performance or makes a new lease of the 
 premises, either to the lessee or to some other person.^®* Furthermore, 
 it has been said that the decided cases favor the proposition that one 
 who signs a lease apparently as principal may show by parol that he 
 did sign as surety to the knowledge of the other party to the instru- 
 ment. ^^^ 
 
 § 454. Liability of lessor on covenant after assignment. — Most of 
 the cases which have arisen on the point of liability after assignment 
 are cases of covenants by lessees, but the reasoning is equally good for 
 covenants by lessors. A lessor who has expressly covenanted with his 
 lessee for the performance of certain things cannot escape his liabil- 
 ity on such covenants by assigning the reversion to another. "How- 
 ever it may be as to the benefits, lessors cannot get rid of the burden of 
 their contracts by conveying their land. In the case of the tenant as 
 in the case of the landlord, it cannot be endured that he should 
 afterwards be deprived of his action on the covenant to which he 
 trusted by an act to which he cannot object."^®^ To a certain extent 
 it is also true that the lessor remains liable to an assignee of the 
 lessee, on the original covenants in the lease. Where a lease contains 
 an agreement that the lessee may purchase the land during the con- 
 tinuance of the lease, the assignment of the lease conveys to and in- 
 vests in the assignee the same right.^^^ This rule must be restricted 
 to cases where no terms of sale are stipulated for or the sale is to be 
 for cash. If the sale is to be for credit, the lessor is under no obliga- 
 tion to give credit to any one but the original lessee, and a contract 
 so personal in its nature cannot be assigned to another.^^^ 
 
 § 455. An assignee of a lease is bound by privity of estate to per- 
 form the express covenants which run with the land, but in the ab- 
 sence of express agreement on his part, he is liable only on such 
 covenants as run with the land and only during such time as he holds 
 the term. 2^^ When the assignee accepts the assignment of a lease, he 
 
 28* Miller v. Stewart, 9 Wheat. (U. 285; Laffan v. Naglee, 9 Cal. 662; 
 
 S.) 680; White v. Walker, 31 111. 422. Hall v. Center, 40 Cal. 63; Schroeder 
 
 "^^ Stein V. Jones, 18 111. App. 543. v. Gemeinder, 10 Nev. 355. 
 
 ^' Carpenter v. Pocasset Manuf . -^ Menger v. Ward, 87 Tex. 622. 30 
 
 Co., 180 Mass. 130, 133, 61 N. E. 816, S. W. 853. 
 
 per Holmes, C. J.; Jones v. Parker, "^'■' Myers v. Silljacks, 58 Md. 319; 
 
 163 Mass. 564, 40 N. E. 1044. Donelson v. Polk, 64 Md. 501, 2 Atl. 
 
 ='«'Kerr v. Day, 14 Pa. St. 112; 824; Nickel v. Brown, 75 Md. 172, 23 
 
 Jackson v. Groat, 7 Cow. (N. Y.) Atl. 736; Gordon v. George, 12 Ind. 
 
 II
 
 519 
 
 EIGHTS AND LIABILITIES OF PARTIES. 
 
 [§ 455 
 
 is charged with knowledge of the covenants therein and takes it 
 cum onere, subject to the payment of the rent which shall thereafter 
 become due and to the performance of the covenants running with 
 the land, which by the terms of the lease, the lessee was bound to per- 
 form. Because of privity of estate he is liable upon covenants matur- 
 ing and broken while title is held by him.^'^" The law has been 
 stated to be that *'the assignee is answerable for the rent during his 
 ownership of the term under the assignment, and his liability there- 
 for arises out of the privity of estate, and this, without reference to 
 any obligation assumed by him in the contract of assignment."^^^ 
 The original lessee is bound by the contract to make the payments. 
 The assignee is bound by his acceptance of the lease to make good 
 the covenant to pay rent therein contained. His liability is upon the 
 covenants and arises not from any express assumption or agreement 
 to pay it which might be contained in the written assignment, but 
 from the privity of estate by reason of his ownership and right to 
 enjoy the benefits of the lease.^" 
 
 The assignee is in privity of estate but not in privity of contract 
 with the lessor and is only liable on covenants which run with the 
 land, such as covenants for rent, to pay taxes and to yield up 
 premises in good repair.^" Wliere rent is payable quarterly, an 
 assignee is liable for rent for the entire quarter within which he 
 became assignee, the rent not yet having accrued. The quarter's 
 
 408; Reid v. John F. Wiessner Brew- 
 ing Co., 88 Md. 234, 40 Atl. 877; 
 Consolidated Coal Co. v. Peers, 166 
 111. 361, 46 N. E. 1105; Muldoon v. 
 Hite, 6 Ky. L. R. 663; Le Gierse v. 
 Green, 61 Tex. 128; Bonetti v. Treat, 
 91 Cal. 223, 27 Pac. 612; Darmstaet- 
 ter V. Hoffman, 120 Mich. 48, 78 N. 
 W. 1014; Grundin v. Carter, 99 
 Mass. 15; Gray v. Clement, 12 Mo. 
 App. 579; Trask V. Graham, 47 
 Minn. 571, 50 N. W. 917. 
 
 ^0 Graves v. Porter, 11 Barb. (N. 
 Y.) 592; Bailey v. Richardson, 66 
 Cal. 416, 5 Pac. 910; Bedford v. Ter- 
 hune, 30 N. Y. 453, 458, 86 Am. Dec. 
 394; Gas Co. v. Johnson, 123 Pa. St. 
 576, 16 Atl. 799; Dunn v. Barton, 16 
 Fla. 765; West Virginia C. & P. Co. 
 V. Mclntire, 44 W. Va. 210, 28 S. E. 
 696; Webster v. Nichols, 104 111. 
 
 160; Journeay v. Brackley, 1 Hilt. 
 (N. Y.) 447; Overman v. Sanborn, 
 27 Vt. 54; Bailey v. Wells, 8 Wis. 
 141. 
 
 -'"■ Bonetti v. Treat, 91 Cal. 223, 27 
 Pac. 612. 
 
 "= Watson &c. Co. v. Casteel, 73 
 Ind. 296; McDowell v. Hendrix, 67 
 Ind. 513; Gordon v. George, 12 Ind. 
 408; Edmonds v. Mounsey, 15 Ind. 
 App. 399, 44 N. E. 196; Stewart v. 
 Long Island &c. R. Co., 102 N. Y. 
 607, 8 N. E. 200. 
 
 "" Peck V. Christman, 94 111. App. 
 435; Consolidated Coal Co. v. Peers, 
 97 111. App. 188; Trask v. Graham, 
 47 Minn. 571, 50 N. W. 917; Van 
 Rensselaer v. Bonesteel, 24 Barb. 
 (N. Y.) 365; Post V. Kearney, 2 N. 
 Y. 394.
 
 § 456] ASSIGNMENT OF LEASES. 520 
 
 rent in such cases is not to be apportioned.^^* There is no reason 
 why the same rule should not apply as to taxes. If the covenant to 
 pay taxes be general, it would be satisfied by payment within the 
 year so as to save the lessor harmless. The lessee would not be at 
 fault till the taxes became delinquent. If there had been no breach 
 of the covenant to pay taxes, the assignee would take the leasehold 
 estate cum onere as to them also.^^^ The general rule is that the 
 assignee of a lease takes it subject to a covenant therein to pay 
 taxes, and a subsequent assignment by him will not relieve him from 
 liability occurring during the continuance of his title.^^® So, where 
 such an obligation rested on the original lessee, an assignee of the 
 lease would likewise be liable to pay taxes on all improvements 
 erected on the leased premises during the term.^^^ 
 
 If a party enters as a sub-tenant, he is bound by the terms of the 
 original lease, of the existence and terms of which he is bound to take 
 notice. So, if the sub-tenant holds possession after the term of the 
 original lease has matured, he is guilty of unlawfully and forcibly 
 detaining possession of the premises.^^^ It has even been held that 
 a collateral agreement by the lessee which was not put on record, 
 would bind a sub-lessee, for it was the duty of the latter to inform 
 himself of the covenants undertaken by the lessee.-^® 
 
 § 456. The liability of an assignee upon the covenants of a lease 
 continues only so long as the privity of estate continues; when that 
 ceases his liability ceases. That an assignee of a lease may, by re- 
 assignment, divest himself of all liability upon the lease, is well estab- 
 lished.^^" He may do this without giving notice to the lessor or ob- 
 
 ="* Graves v. Porter, 11 Barb. (N. v. Chicago Storage Co., 129 111. 318, 
 
 Y.) 592; Trask V. Graham, 47 Minn. 21 N. E. 920; Chicago Attachment 
 
 571, 50 N. W. 917. Co. v. Davis &c. Co., 142 111. 171, 
 
 =^5 Trask v. Graham, 47 Minn. 571, 178, 31 N. E. 438; Trabue v. Mc- 
 
 50 N. W. 917. Adams, 8 Bush (Ky.) 74; Meyers 
 
 "° State v. Martin, 14 Lea (Tenn.) Bros. v. Gaertner, 106 Ky. 481, 50 
 
 92, 52 Am. R. 167; Salisbury v. Shir- S. W. 971; Readey v. American &c. 
 
 ley, 66 Cal. 223, 5 Pac. 104; Wills v. Co., 60 111. App. 501; Hintze v. 
 
 Summers, 45 Minn. 90, 47 N. W. 463. Thomas, 7 Md. 346; Nickel v. Brown, 
 
 ="'Huddell, In re, (Pa.), 10 Am. 75 Md. 172, 23 Atl. 736; Donelson v. 
 
 St. 559, n. Polk, 64 Md. 501, 2 Atl. 824; Reid 
 
 "' Blachford v. Frenzer, 44 Neb. v. John F. Wiessner Brewing Co., 
 
 829, 62 N. W. 1101. 88 Md. 234, 40 Atl. 877; Durand v. 
 
 "»Dunn V. Barton, 16 Fla. 765. Curtis, 57 N. Y. 7; Jacques v. Short, 
 
 "'"Smith V. Ingram, 90 Ala. 529, 20 Barb. (N. Y.) 269; Davis v. Mor- 
 
 8 So. 144; Johnson v. Sherman, 15 ris, 36 N. Y. 569; Grundin v. Carter, 
 
 Cal. 287, 76 Am. Dec. 481; Sexton 99 Mass. 15; Sanders v. Partridge,
 
 521 EIGHTS AMD LIABILITIES OF PARTIES. [§ 456 
 
 taining his leave; and notwithstanding a condition in the original 
 lease that the lessee shall not assign without the license of the lessor.^^^ 
 In one case the illustration was put that if an assignee of a lease kept 
 possession of the premises out of which he made a profit and assigned 
 to a beggar, he would thereby completely relieve himself from all 
 liability for rent as assignee of the term, so strongly is it held that 
 the liability is only by reason of the privity of estate and not at all 
 by reason of the possession.^®- However, the assignee of a lease can- 
 not discharge his liability to pay the rent reserved by anything short 
 of an actual absolute transfer of the unexpired term.^®^ So, a transfer 
 of a leasehold interest by the assignee three days before rent ac- 
 crued, not accompanied by a transfer of possession, was held not to 
 destroy the assignee's privity of estate. The assignee remained in 
 possession, and by claiming and receiving subsequently accruing rent 
 from an undertenant, he had the beneficial enjoyment when the cove- 
 nant to pay rent to the lessor was broken. ''Under such circum- 
 stances," said the Pennsylvania Court, "the privity out of which his 
 liability to pay arose was not destroyed by the assignment."^®* 
 
 There must be a consenting assignee before an assignment of a lease 
 is complete. An assignment stands in no other light than any other 
 contract ; it could not be made by the assignor alone, without the con- 
 sent of the assignee. The delivery of the lease might not be necessary, 
 but the acceptance of the assignment, either express or implied, is 
 certainly requisite to its validity. ^®^ 
 
 Conveyance of an equitable title by giving a title bond is not such 
 a transfer as will relieve him from liability. The conveyance must be 
 by deed duly executed and recorded.-®^ A person to whom the equi- 
 table title of leasehold property belongs on the day rent accrues, is 
 not responsible for rent. It does not matter how extensive the 
 equity may be, or that the tenant has contracted to convey the 
 property to him on demand and the full price has been paid, so that 
 in every point of view the purchaser was the absolute owner except 
 as to the legal title, there is still no responsibility for rent because 
 
 108 Mass. 556; Taylor v. De Bus, 31 ^ Negley v. Morgan, 46 Pa. St. 
 
 Ohio St. 468; Tibbals v. Iffland, 10 281, 285, per Strong, J. 
 
 Wash. 451, 39 Pac. 102. "^^ Beattie v. Parrott Silver &c. 
 
 ^''Tibbals v. Iffland, 10 Wash, 451, Co., 7 Mont. 320, 17 Pac. 451; May- 
 
 39 Pac. 102. nard v. Maynard, 10 Mass. 456; 
 
 =«= Taylor v. Shum, 1 B. & P. 21; Townson v. Tickell, 3 B. & Aid. 31, 
 
 Borland's Appeal, 66 Pa. St. 470. 5 E. C. L. 28. 
 
 -*^ Trabue v. McAdams, 8 Bush ^ Mayhew v. Hardesty, 8 Md. 479. 
 (Ky.) 74.
 
 §• 457] ASSIGNMENT OF LEASES. 522 
 
 the purchaser does not have the legal title and you cannot sue any 
 one in a court of law except the one who has the legal title. So, in 
 a jurisdiction where a deed does not convey legal title till it has been 
 recorded, an assignee cannot be held liable at law on the covenants 
 of a lease till the instrument of assignment has been duly recorded.^^^ 
 Nevertheless, it remains true that a reassignment may be made for 
 the express purpose of avoiding liability, and will be effective to ac- 
 complish that purpose, even though a premium is given to induce 
 an acceptance of the transfer. There is no fraud in the assignee of 
 a lease reassigning his interest with a view to getting rid of the 
 lease; hence, he may reassign it to a beggar, or to a married woman 
 or to a person on the point of leaving the country.^®^ A reassign- 
 ment by the assignee to the original lessee would discharge the 
 assignee from the covenants under the lease.^^® But a partial assign- 
 ment over would not have this effect.-^*' Abandonment of demised 
 premises by an assignee does not operate to rid him of this estate 
 therein, and consequently as the liability on the covenants of the 
 lease rests on privity of estate, mere abandonment, not destroying 
 the privity, would not release him from liability.-^^ And further- 
 more, it is true that even a valid transfer of his interest will not have 
 the effect of discharging an assignee from liability for breaches of 
 covenant already committed.^®^ 
 
 § 457. The assignee of a leasehold estate is not bound by the cove- 
 nants of the lease till the transfer has been completed by his accept- 
 ance of the assignment. If the assignment is made by the assignor at 
 his own instance or under an arrangement between third parties, and 
 the assignee has no knowledge of the assignment and never accepts 
 it, he is not bound by it.^^^ Acceptance by an assignee of a general 
 assignment does not bind him as assignee of a lease, unless he elects 
 
 ^' Nickel V. Brown, 75 Md. 172, 23 -?" Muldoon v. Hite, 6 Ky. L. R. 
 
 Atl. 736. 663. 
 
 ^« Johnson v. Sherman, 15 Cal. ^"^ Bonetti v. Treat, 91 Cal. 223, 27 
 
 287, 76 Am. Dec. 481; Tyler v. Gies- Pac. 612; Blake v. Sanderson, 1 Gray 
 
 ler, 74 Mo. App. 543; Johnston v. (Mass.) 332. 
 
 Bates, 16 Jones & S. (N. Y.) 180; ="= Consolidated Coal Co. v. Peers, 
 
 Tate V. McCormick, 23 Hun (N. Y.) 150 111. 344, 37 N. E. 937, affirming 
 
 218; Tibbals v. Iff land, 10 Wash. 39 111. App. 453; State v. Martin, 14 
 
 451, 39 Pac. 102. Lea (Tenn.) 92. 
 
 =^'Dengler v. Michelssen, 76 Cal. ^''^ MacFarland v. Helm, 127 Mo. 
 
 125, 18 Pac, 138; Beattie v. Parrott 327, 29 S. W. 1030. 
 Silver &c. Co., 7 Mont. 320, 17 Pac. 
 451.
 
 523 EIGHTS AND LIABILITIES OF PARTIES. [§ 458 
 
 to acept the lease.^^* The devisee of an unexpired term, who does not 
 enter upon the demised premises nor in any way signify his intention 
 to accept the lease, is not liable for the rent. When one becomes 
 assignee of a lessee by operation of law, he is not, in general, charge- 
 able with the performance of the covenants of the lease until he 
 enters or does some act showing his acceptance. He may accept 
 without entry, but he is not compelled to take the assignment.^^^ 
 A devisee is an assignee in law, and, never having entered upon the 
 d;emised premises, nor done any act to signify acceptance of the lease, 
 would not be liable as assignee upon the covenants of the instru- 
 ment.-^^ 
 
 § 458. An actual entry by an assignee upon the demised premises 
 is not necessary in order that he should be bound by the covenant to 
 pay renf, for, by accepting an interest under the conveyance, he incurs 
 the responsibility connected with the estate.^"'^ The cases decide that 
 the assignee of the whole premises is liable for the rent of the whole, 
 though only in possession of a. part ;^®^ that the assignee of a separate 
 part is liable for rent only of the part assigned ;^''^ that rent is due 
 from the assignee of a lease only by virtue of his privity of estatei 
 with the landlord ;^''° and there is no reason for holding that the 
 assignee of an undivided interest in a leasehold is liable in proportion 
 to his possession which does not create the liability, and not in pro- 
 portion to his estate, which does.^"^ In an extreme case an assignee 
 
 ^^ Smith V. Ingram, 90 Ala. 529, 8 Bush (Ky.) 74; Smith v. Brinker, 
 So. 144. Assignees under general as- 17 Mo. 148; "Willi v. Dryden, 52 Mo. 
 signment may accept or refuse lease- 319; St. Louis Pub. Schools v. Boat- 
 hold estates and an arrangement for men's Ins. Co., 5 Mo. App. 91; Uni- 
 the acceptance of rent from one versity of Vermont v. Joslyn, 21 Vt. 
 until he exercises his option will 52; Walton v. Cronly, 14 Wend. (N. 
 not amount to a waiver of the Y.) 63; Williams v. Bosanquet, 1 B. 
 breach caused by the assignment. & B. 238, 5 E. C. L. 609; Burton v. 
 Medinah Temple Co. v. Currey, 162 Barclay, 7 Bing. 745; Walker v. 
 111. 441, 44 N. E. 839. Reeves, 2 Doug. 461; Cook v. Harris, 
 
 ^'"Whitcomb v. Starkey, 63 N. H. 1 Ld. Raym. 367. 
 
 607, 4 Atl. 793; Williams v. Bosan- ^98 j^ggjgy y Morgan, 46 Pa. St. 
 
 quet, 1 B. & B. 238. 281. 
 
 ='''Whitcomb v. Starkey, 63 N. H. -"^"Astor v. Miller, 2 Paige (N. Y.) 
 
 607, 4 Atl. 793. 68, 78; Van Rensselaer v. Jones, 2 
 
 '"Benedict v. Everard, 73 Conn. Barb. (N. Y.) 643,653. 
 
 157, 46 Atl. 870; Babcock v. Scoville, =»' Taylor v. Shum, 1 B. & P. 21. 
 
 56 111. 461; Edmonds v. Mounsey, 15 ^oi g,. Louis Pub. Schools v. Boat- 
 
 Ind. App. 399, 44 N. E. 196; Breck- men's Ins. So., 5 Mo. App. 91; Bab- 
 
 enridge v. Parrott, 15 Ind. App. 411, cock v. Scoville, 56 111. 461. 
 44 N. E. 66; Trabue v. McAdams, 8
 
 § 458] ASSIGNMENT OF LEASES. 534 
 
 under an assignment indorsed on a lease was held liable on the cove- 
 nants for payment of rent, although neither the lessee nor assignee 
 occupied under the lease and the rent was collected from sub-tenants 
 by an agent of the lessee.^**^ 
 
 One decision has been found which seems inconsistent with the 
 foregoing rule. There the assignee of an undivided interest in a lease- 
 hold, in possession of the whole, was held liable for the entire rent, 
 to the exclusion of the assignee and owner of a part interest who 
 was out of possession. The privity of estate which creates the 
 liability was declared to be one of actual possession and enjoyment.^"^ 
 And in another case in the same jurisdiction it has been asserted that 
 possession is the foundation and boundary of the liability of the 
 assignee.^"* 
 
 The assignment of a lease for the whole term, whether absolute, or 
 subject to a proviso for reassignment in a certain event, is, as far as 
 concerns the interest to be transferred, exactly the same. The whole 
 interest is assigned and the whole is to be reassigned; it vests abso- 
 lutely, till such reassignment, in the party who is to reassign, and is 
 not less absolute because, by agreement between the immediate 
 parties, the assignor may entitle himself to a reconveyance of the 
 term. In the intermediate time, or till such reassignment, the as- 
 signee stands in the shoes of the assignor and is, as against the lessor, 
 subject to all the liabilities created by the lease. So that if in one 
 case, he is liable without entry or occupation, he is equally so in the 
 other.^"^ Lord Thurlow said it was no matter whether the person 
 sued as assignee took the lease as a pledge or as a purchase, he could 
 not take the estate without taking the burden.^"® 
 
 In Missouri and New York the doctrine of making a distinction 
 between absolute assignments and those by way of mortgage, which 
 was advanced in the early English cases and subsequently discarded, 
 seems to be still law. Possession in the assignee is necessary in 
 those states in order to create a liability to pay rent; the assignee 
 
 20= Sanders V. Partridge, 108 Mass. merford, 1 Ves. Jr. 235; McMurphy 
 
 556. V. Minot, 4 N. H. 251; Dartmouth 
 
 ^o^" Damainville v. Mann, 32 N. Y. College v. Clough, 8 N. H. 22; Farm- 
 
 197_ ers' Bank v. Mutual Assur. Soc, 4 
 
 3°* Carter v. Hammett, 18 Barb. Leigh (Va.) 69; Mayhew v. Hardes- 
 
 (N. Y.) 608. ty, 8 Md. 479; Eaton v. Jaques, 2 
 
 ^"'Williams v. Bosanquet, 1 B. & Doug. 455, holding the contrary, is 
 
 B. 238, 262, 5 E. C. L. 609; Sparkes expressly overruled. 
 v. Smith, 2 Vern. 275; Pilkington v. ^"^ Lucas v. Comerford, 1 Ves. Jr.^ 
 
 Shaller, 2 Vern. 374; Lucas v. Co- 235.
 
 525 EIGHTS AND LIABILITIES OF PARTIES. [§' 459 
 
 must be in a position to receive the benefits, before he can be made 
 to suffer the burden. Possession is the basis of his liability. But 
 this applies only to transfers by way of security where possession 
 is not taken by the assignee.^"'^ 
 
 However, as regards third persons the rights of an assignee are 
 not complete till he enters into possession of the premises. Prior to 
 entry he may maintain ejectment to recover possession of the lease- 
 hold estate, but he cannot maintain trespass in respect to the premises 
 unless he has actually entered into possession of them.^"® A lienor, buy- 
 ing at the sale under proceeding to enforce his lien, does not become an 
 assignee liable on the covenants of the lease.^°^ 
 
 § 459. Who are entitled as assignees of the reversion. — The pre- 
 vailing rule as stated in the preceding section, is that a mortgagee of 
 a leasehold estate, whether in or out of possession is an assignee of 
 the lease and as such is liable on all the covenants which run with 
 the land. It has been held, however, in a jurisdiction where a mort- 
 gage does not convey the legal estate, that a mortgagee of the re- 
 version would not be liable to a lessee upon the covenants of a 
 lease. The mortgage created no privity between the parties. It 
 passed no estate in the land, but gave only a lien.^^" It was claimed 
 to be different with a mortgagee in possession, and that he had such 
 an estate as would make him liable upon covenants running with the 
 land. In New York the law is that when the mortgagee takes pos- 
 session, he then has all the right, title, and interest of the mort- 
 gagor.^" In California, on the other hand, it is held that the in- 
 terest of a mortgagee in possession is the same as that of one out of 
 possession.^ ^^ The Minnesota court passing upon this question were 
 of opinion that the decisions in California were in accordance with 
 the better reason. The mere act of the parties, of going into pos- 
 session and consenting to or acquiescing in it could not have the effect 
 to pass the mortgagor's estate to the mortgagee. The fact that pos- 
 session is added cannot change the lien of a mortgage into an estate.^^^ 
 
 '"Smith V. Brinker, 17 Mo. 148; '^^ Cargil v. Thompson, 57 Minn. 
 
 Willi V. Dryden, 52 Mo. 319; McKee 534, 59 N. W. 638. 
 
 v. Angelrodt, 16 Mo. 283; Tallman ==" Astor v. Hoyt, 5 Wend. (N. Y.) 
 
 V. Bresler, 56 N. Y. 635, affirming 65 603; Moffatt v. Smith, 4 N. Y. 126. 
 
 Barb. (N. Y.) 369. "= Johnson v. Sherman, 15 Cal. 
 
 '"'Ryan v. Clark, 14 A. & E. N. S. 287; Button v. Warschauer, 21 Cal. 
 
 65, 73, 68 E. C. L. 65; Harrison v. 609. 
 
 Blackburn, 17 C. B. N. S. 678, 112 E. ""' Cargil v. Thompson, 57 Minn. 
 
 C. L. 678. 534, 59 N. W. 638. 
 
 '"* Merchants' Ins. Co. v. Ma- 
 zange, 22 Ala. 168
 
 § 460] ASSIGNMENT OF LEASES. 526 
 
 A grantee of a reversion acquires only a right of action for a sub- 
 sequent breach of the terms of letting, but none for a breach occurring 
 prior to the conveyance. The purchaser in such ease acquires only a 
 right to the premises in the condition in which they are at the time 
 of the conveyance.^^* So the assignee is only liable for breaches of 
 covenant during such time as he continues to hold the reversionary 
 interest.^^^ 
 
 § 460. An assignee of part of leased premises is liable for his pro 
 rata share of the rent reserved in the lease, but he is not liable for the 
 entire rent.^^® Where a covenant running with the land is divisible 
 in its nature, if the entire interest in different parcels of the land 
 passes by assignment to different individuals, the covenant will at- 
 tach upon each parcel pro tanto, and the assignee will be answerable 
 for his proportion only of any charge upon the land, which was a com- 
 mon burden upon the whole.^^^ If the landlord seeks to recover of 
 an assignee for a part of the permises according to the value of the 
 land, it is the business of the jury on evidence produced to appor- 
 tion the rent to the value of the land.^^^ 
 
 The case is somewhat different where an assignee of a portion of a 
 leasehold estate has no entire interest in any part of the premises, 
 but a partial undivided interest in the whole, as where separate deeds 
 of assignment of individed thirds were executed by the lessee. These 
 three assignees held the entire interest of the original lessee, not as 
 joint purchasers, but by separate deeds of assignment, each of them an 
 undivided third. If no one of them has taken actual possession, tliey 
 are not jointly liable for the whole rent, but each assignee is severally 
 liable for a part only, according to his interest in the premises as 
 compared with the whole interest under the lease.^^^ So, where a 
 lease was made to two and one assigned his interest, the assignee was 
 
 ^"Haeussler v. Holman &c. Co., 49 (N. Y.) 643, 653; Lansing v. Van Al- 
 
 Mo. App. 631. styne, 2 Wend. (N. Y.) 561; Steven- 
 
 ^^ Bailey v. Richardson, 66 Cal. son v. Lambard, 2 East 575. 
 
 416, 5 Pac. 910. '" Van Home v. Grain, 1 Paige 
 
 ^" Hogg v. Reynolds, 61 Neb. 758, (N. Y.) 455; Astor v. Miller, 2 
 
 86 N. W. 479; Van Rensselaer v. Paige (N. Y.) 68, 78; Harris v. 
 
 Bradley, 3 Denio (N. Y.) 135; Ful- Frank, 52 Miss. 155; Babcock v. 
 
 ton V. Stuart, 2 Ohio 216; Curtis v. Scoville, 56 111. 461; Stevenson v. 
 
 Spitty, 1 Bing. N. C. 756; Woodhull Lambard, 2 East 575. 
 
 v. Rosenthal, 61 N. Y. 382; Bab- ^'^ Van Rensselaer v. Bradley, Z^ 
 
 cock V. Scoville, 56 111. 461; Astor Denio (N. Y.) 135. § 668. 
 
 V. Miller, 2 Paige (N. Y.) 68, 78; "» Babcock v. Scoville, 56 111. 461. 
 Van Rensselaer v. Jones, 2 Barb.
 
 527 EIGHTS AND LIABILITIES OF PARTIES. [§ 461 
 
 liable only for one-half the rent because he is liable onh^ on the 
 circumstance of privity of estate and not because he is in possession. 
 If a lease is made to two, the lessor and lessees are privies in estate 
 as well as privies in contract. Each lessee is in privity of estate with 
 the lessor as to one undivided half of the leasehold, and no more, 
 because the two halves together make the whole estate. Where one 
 of these lessees assigns, the other lessee remains in privity of estate 
 with the landlord only for the half which remains. As he is liable 
 by virtue of 'this privity, it would seem that he should be liable only 
 in proportion to it. As he is privy as to one-half, he should pay rent 
 for one-half and no more. His estate in the land is the ground of 
 liability and this estate remains the same, whether he is in actual 
 possession of all the property leased or a part of it, or has no actual 
 possession at all. Where the assignee holds in severalty, it has never 
 been questioned that he is liable only for the rent of his separate 
 part of the premises; and where he has an undivided interest in the 
 whole leasehold, no reason is apparent for any different rule.^^° 
 
 The foregoing reasoning would seem not to include covenants for 
 the performance of acts other than the payment of rent, such as the 
 covenant to surrender possession at the end of the term. Conse- 
 quently, an action for breach of a covenant to deliver up possession 
 was successfully maintained against assignees of undivided interests 
 in a term for years. While assignees of a leasehold as tenants in com- 
 mon, they are jointly and severally liable on covenants to repair and 
 yield up possession at the end of the term. If they are not jointly and 
 severally liable, one tenant in common owning a small undivided inter- 
 est might prevent the delivery of the property in its entirety. While 
 one of the tenants in common remains, the unity of possession is un- 
 divided, and as to those at least who continue in possession, the unity 
 of obligation flows from unity of possession. Assignees of undivided 
 and unequal interests in a lease, while holding as tenants in com- 
 mon, are jointly and severally liable on covenants in the lease to re- 
 pair and deliver up the demised premises at the end of the term. Such 
 covenants run with the land, while the personal privity of contract 
 between the lessor and the lessee remains unaffected.^^^ 
 
 § 461. Where a lessee makes a general assignment of all his prop- 
 erty of every sort and description for the benefit of his creditors, it is 
 sufficiently comprehensive to pass to the trustee or assignee the grant- 
 
 '■' St. Louis Pub. Schools v. Boat- ''' Coburn v. Goodall, 72 Cal. 498, 
 men's Ins. Co., 5 Mo. App. 91. 14 Pac. 190.
 
 § 461] ASSIGXMEXT OF LEASES 538 
 
 or's interest in the term. But the trustee is not bound to accept such 
 a transfer of the term; he has his election to take it or not accord- 
 ing to the best interest of the creditors, and unless he elects to take it 
 or goes into possession and occupies the premises he will not be bound 
 by the covenants of the lease.^^^ It has been uniformly held that an 
 assignee for the benefit of creditors may accept the assignment and 
 enter upon the execution of the trust without becoming the assignee 
 of the lease held by the insolvents, unless he elects to do so.^^^ The 
 failure of the assignor to enumerate property in the inventory does 
 not have the effect of limiting the grant so that leasehold property of 
 the debtor comprehended within the general terms of the deed shall 
 not pass by the deed.^-* Just when the assignee will be held to have 
 accepted the lease and bound himself to perform its covenants is a 
 matter of doubt, and no general rule can be laid down as to the effect 
 of specific acts of the assignee in determining whether there has been 
 an election to take the leasehold as a part of the assigned property. 
 An examination of the adjudged cases is valuable as fixing the general 
 principle by which they are governed. This general principle seems 
 to be that the assignee will not be held to have accepted the lease, 
 unless it be shown that he has done so expressly, or by unequivocal 
 acts inconsistent with the right of entry by the landlord, has indicated 
 an election to appropriate the leasehold estate.^^^ Lord Ellenborough 
 held in one case that the allowing of the bankrupt's cows to remain 
 on a leased farm for two days and ordering them to be milked there, 
 was an adoption of the demise so as to make the assignees the tenants 
 of the lessor.^ ^^ In another case Chief Justice Abbot held that the as- 
 signee elected to accept the lease by using the premises for the benefit 
 of the creditors.^^'^ These cases establish the position that taking pos- 
 
 '^ Smith V. Ingram, 90 Ala. 529, 8 son v. Stevenson, 1 B. & Aid. 303; 
 
 So. 144; Dorrance v. Jones, 27 Ala. Medinah Temple Co. v. Curry, 162 
 
 630; White v. Griffing, 44 Conn. 437; 111. 441, 44 N. E. 839. 
 
 Horwitz V. Davis, 16 Md. 313; Boyce '"Smith v. Goodman, 149 111. 75, 
 
 V. Bakewell, 37 Mo. 492; Carter v. 36 N. E. 621; Martin v. Black, 9 
 
 Hammett, 12 Barb. (N. Y.) 253,263; Paige (N. Y.) 641, 644; Washburn, 
 
 Commonwealth v. Franklin Ins. Co., In re, 11 Nat. Bank Reg. 66; Jour- 
 
 115 Mass. 278; Faxon, Ex parte, 1 neay v. Brackley, 1 Hilt. (N. Y.) 
 
 How. (U. S.) 404; Copeland v. 447. 
 
 Stephens, 1 B. & Aid. 593; Turner '=* Smith v. Goodman, 149 111. 75, 
 
 v. Richardson, 7 East 336; Gibson 36 N. E. 621. 
 
 V. Courthope, 1 D. & R. 205, 16 E. C. ""-^ Smith v. Goodman, 149 111. 75, 
 
 L. 33; Wheeler v. Bramah, 3 Camp. 35 N. E. 621. 
 
 340; Thomas v. Pemberton, 7 Taunt. ==nVelch v. Myers, 4 Camp. 368. 
 
 206; Hill v. Dobie, 8 Taunt. 325; An- =-"^ Clark v. Hume, Ry. & M. 207. 
 sell V. Robson, 2 Cr. & J. 610; Han- 
 
 m.
 
 529 RIGHTS AND LIABILITIES OF PARTIES. [§ 463 
 
 session of the leasehold estate, and holding it for the benefit of the 
 creditors, though for ever so short a time, by virtue of the assign- 
 ment, is the true test. This does not mean that if the assignee entered 
 only for the purpose of obtaining possession of goods, it would be an 
 acceptance, for that would, in no just sense, be taking possession of 
 the premises. But if an assignee took possession of a store to use it as 
 a place to sell the goods, it falls directly within the principle of the 
 cases referred to. If that was the object, it is immaterial how long 
 the possession was retained, as when once the election was made the 
 assignee could not recede from it.^^^ Carrying on business on the 
 premises^-^ or intermeddling with the farm land of a bankrupt^ ^"^ has 
 been held sufficient to establish an acceptance by the assignee. If an 
 assignee assumes to dispose of a leasehold estate by sale, that amounts 
 to an acceptance. It is difficult to see how an assignee in bankruptcy 
 can sell the lease of the bankrupt and receive therefor money for the 
 benefit of the creditors, without accepting the assignment of the 
 lease.^^^ 
 
 § 462. The assumption by an assignee of a lease of all the obliga- 
 tions and liabilities of the assignor, creates a privity of contract as 
 well as privity of estate between the lessor and the assignee; so that 
 where the assignee of the lease at the time of the assignment covenants 
 under seal to assume all the covenants of the original lessor, he remains 
 liable on the covenants of the lease after an assignment over just as 
 if he were an original lessee, bound by express covenants. ^^^ It is 
 clear that the assignee may by contract between himself and the lessor 
 bind himself to the full performance of all the covenants of the lease, 
 irrespective of the fact whether he parts with the title thereafter by 
 a further assignment, or whether he ever enters into possession him- 
 self. That the memorandum of assignment is a valid, independent 
 contract, if supported by a sufficient consideration, cannot be gainsaid ; 
 failure to name the lessor as a promisee in the memorandum is imma- 
 
 '^Dorrance v. Jones, 27 Ala. 630; 218, 62 N. E. 542, 93 111. App. 260; 
 
 Horwitz V. Davis, 16 Md. 313. Consumer's Ice Co. v. Bixler, 84 Md. 
 
 '=^ Clark v. Hume, Ry. & M. 207. 437, 35 Atl. 1086; Llndsley v. 
 
 ^'"Thomas v. Pemberton, 7 Taunt. Schnaider Brew. Co., 59 Mo. App. 
 
 206. 271; Wilson v. Lunt, 11 Colo. App. 
 
 ''1 White V. Griffing, 44 Conn. 437, 56, 52 Pac. 296; Adreon v. Hawkins, 
 
 449; Hastings v. Wilson, Holt N. P. 4 H. & J. (Md.) 319; Rawlings v. 
 
 290. See also. Turner v. Richard- Duvall, 4 H. & McH. (Md.) 1; Iggul- 
 
 son, 7 East 336. den v. May, 9 Ves. 325, 330. 
 
 === Springer v. De Wolf, 194 111. 
 Jones L, & T.— 34
 
 § 462] ASSIGXIMEXT OF LEASES. 530 
 
 terial. A seal affixed to a contract of assignment would furnish, tech- 
 nical consideration. Moreover, the fact that it was optional with the 
 lessor to consent to the assignment and that the lessor consented, 
 presumably on the faith of the independent contract, furnishes a 
 substantial consideration. The memorandum, therefore, establishes 
 a privity of contract between the lessor and assignee which can only 
 be terminated by the joint action of both parties. It recites that the 
 transfer is subject to all the covenants in the lease, and accepted by 
 the assignee with all the responsibilities for the faithful performance 
 of the covenants of the lease. Any other reading of the memorandum 
 would be devoid of meaning.^^^ The true basis on which an assignee's 
 liability to the lessor can be maintained is the principle so often an- 
 nounced in modern cases that where one makes a promise to pay 
 another the debt which he owes, an action will lie by him for whose 
 benefit the promise is made. It is a question of the application of 
 this rule. There is a diversity of opinion in courts of last resort in 
 this country, growing out of the particular view that each tribunal 
 has taken as to the ground of the liability of the grantee who assumes 
 the payment of a mortgage upon the property conveyed to him ; some 
 holding that his liability depends upon the equitable doctrine of sub- 
 rogation, and that the obligation he assumes can be enforced only in 
 an equitable proceeding, while others hold that it arises out of contract 
 and constitutes a legal liability, enforceable in an action at law. 
 Surely if the grantee may be sued at law by the mortgagee on the 
 promise expressed, when it was made, only to the grantor, there can 
 be no objection on principle to a suit by the lessor against the assignee 
 even after transfer, and in the absence of the privity of estate which 
 might be essential where there was no express promise. It has been 
 so decided, and there are many cases which uphold this application 
 of the doctrine.^^^ Accepting a deed-poll conveying an interest in real 
 
 ^^Lindsley v. Schnaider Brew, man, 17 Mass. 400; Hall v. Marston, 
 
 Co., 59 Mo. App. 271; Willi v. Dry- 17 Mass. 575; Center v. McQuesten, 
 
 den, 52 Mo. 319. 18 Kan. 476; Johnson v. Knapp, 36 
 
 ='* Wilson v. Lunt, 11 Colo. App. Iowa 616; Taylor v. De Bus, 31 Ohio 
 
 56, 52 Pac. 296; Lehow v. Simonton, St. 468; Frank v. Maguire, 42 Pa. St. 
 
 3 Colo. 346; Green v. Morrison, 5 77; Laurence v. Fox, 20 N. Y. 268; 
 
 Colo. 18; Starbird v. Cranston, 24 Port v. Jackson, 17 Johns. (N. Y.) 
 
 Colo. 20, 48 Pac. 652; Mulvaney v. 238. The supreme court of Cali- 
 
 Gross, 1 Colo. App. 112, 27 Pac. 878; fornia in an obiter dictum found in 
 
 Brewer v. Dyer, 7 Cush. (Mass.) the case of Bonetti v. Treat, 91 Cal. 
 
 337; Carnegie v. Morrison, 2 Mete. 223, 229, dissent from the rule 
 
 (Mass.) 381; Mellen v. Whipple, 1 stated in the text. The assignees 
 
 Gray (Mass.) 317; Arnold v. Ly- "covenant, contained in the assign-
 
 531 
 
 EIGHTS AXD LIABILITIES OF PARTIES. 
 
 [§ -±62 
 
 estate, which recites an agreement on the part of the grantee to pay 
 money for or on account of the grantor, binds him to perform that 
 agreement.^ ^^ No difficulty arises from the lack of consideration 
 for the assignee's assumption of covenants, as the transfer of the lease 
 is a sufficient consideration for the undertaking of the assignee to 
 pay rent.^^" 
 
 The express covenant of an assignee to fulfill the covenants of the 
 lessee in the lease is in legal effect that he will fulfill the unbroken 
 covenants in said lease; that he will from that time take the place 
 of the original lessees, and fulfill their covenants. It would be a 
 species of fraud to hold him responsible for the past neglect or breaches 
 of covenant of the original lessee.^^^ But if the assignee by express 
 covenant with the assignor, bind himself to pay the rents and perform 
 all the covenants in the lease contained, and required to be done and 
 performed on the part of the lessee, such a covenant not only binds the 
 assignee to fulfill the covenants during his own time, but makes him 
 liable for breaches before his time.^^^ In an assignment of certain 
 leases, the lessee stipulated that the assignee should have and hold the 
 leases under the terms thereof, and under and subject to the rents and 
 covenants therein reserved and contained on the part of the lessee to be 
 paid, kept, done, and performed. By accepting the assignment with 
 that stipulation, and causing it to be recorded, and receiving the leases 
 thereunder, the assignee became bound to perform all the unperformed 
 
 ment to him," to pay all rent that 
 may fall due, from time to time, by 
 virtue of the provisions of the lease, 
 "and his entry into possession as 
 assignee under the assignment, 
 created the relation of landlord and 
 tenant between him and the lessor, 
 and his holding was by privity of 
 estate, and not by privity of con- 
 tract, as claimed by respondent. 
 The lessor was not a party to nor 
 was he in any way benefited by the 
 contract of assignment. The liabil- 
 ity of the assignee to the lessor was, 
 therefore, created solely by the 
 covenant of the lease to pay the 
 rent, which is a covenant running 
 with the land, and not by the con- 
 tract of assignment, the non-per- 
 
 formance of which is enforceable 
 only by the lessee." 
 
 =•3= Edwards v. Spalding, 20 Mont. 
 54, 49 Pac. 443. 
 
 2^'' Pike v. Brown, 7 Cush. (Mass.) 
 133, 138; Foster v. Atwater, 42 Conn. 
 244; Hubbard v. Ensign, 46 Conn. 
 576; "Woodruff v. Baldwin, 72 Conn. 
 439, 44 Atl. 748. 
 
 ^"Townsend v. Scholey, 42 N. Y. 
 18; Farmers' Bank v. Mutual Assur. 
 Soc, 4 Leigh (Va.) 69; Tillotson 
 v. Boyd, 4 Sand. (N. Y.) 516, 521 
 Lewes v. Ridge, 2 Cro. Eliz. 863 
 Grescot v. Green, 1 Salk. 199 
 Church Wardens v. Smith, 3 Bur 
 1271. 
 
 338 Farmers' Bank v. Mutual Assur 
 Soc, 4 Leigh (Va.) 69.
 
 I 
 
 § 463] ASSIGNMENT OF LEASES. 532 
 
 terms of the leases. He stepped into the lessee's shoes and assumed his 
 obligations.^^^ 
 
 § 463. What constitutes an assumption of covenants by assignee. — 
 
 Where a lease was assigned "with all its covenants, terms and con- 
 ditions," it was urged that this created a privity of contract between 
 the assignee and the lessor and made the assignee liable on the cov- 
 enants of the lease after he had reassigned it; but the court was of 
 the contrary opinion. There was no undertaking, promise or agree- 
 ment in express terms on the part of the assignee to pay the rent 
 reserved in the lease. The assignment of the lease "with all its cov- 
 enants, terms and conditions" had no wider scope than a bare assign- 
 ment, so there was no independent agreement binding the assignee 
 at all. These words added nothing to the legal effect of the assign- 
 ment. They were not contractual words of the assignee. They era- 
 bodied no promise by him to the lessor. They were simply words of 
 description and not words of contract, and they imposed no greater 
 obligation on the assignee than would have existed, had they been 
 entirely omitted from the assignment.^*" The same has been held of 
 the words "subject to the originally reserved ground rent" in an 
 assignment; these are words of description merely, and do not import 
 a covenant on the part of the assignee to pay the ground rent.^*^ It 
 is also well established that the words "subject to the payment of rent" 
 are words of qualification and not words of contract. Such an ex- 
 pression does not create any liability by the assignee to indemnify 
 his assignor for payments of rent accruing after the assignee had 
 assigned over, and this whether the assignment be by deed-poll or 
 indenture.^ *^ Taking a deed to premises "subject to" the terms of 
 a title bond, or "subject to" an outstanding mortgage creates no per- 
 sonal liability on the grantee to pay off incumbrances.^*^ But where 
 mortgaged land is conveyed and the deed of conveyance recites that 
 the grantee assumes the mortgage debt, this imposes a personal liability 
 on him to pay the mortgage in question. Such is the well settled 
 
 ''* Woodland Oil Co. v. Crawford, '*= Consolidated Coal Co. v. Peers, 
 
 55 Ohio St. 161, 44 N. E. 1093. 166 111. 361, 46 N. E. 1105; Walker 
 
 ^"Reid V. John F. Wiessner Brew- v. Physick, 5 Barr (Pa.) 193. 
 
 Ing Co., 88 Md. 234, 40 Atl. 877; =« Comstock v. Hitt, 37 111. 542; 
 
 Wahl v. Barroll, 8 Gill. (Md.) 288; Hammer v. Johnson, 44 111. 192; 
 
 Wolveridge v. Steward, 3 M. & Sc. Fowler v. Fay, 62 111. 375; Dean v, 
 
 561, 30 E. C. L. 521. Walker, 107 111. 540. But see, 
 
 "iWahl v. Barroll, 8 Gill. (Md.) Campbell v. Shrum, 3 Watts (Pa.) 
 
 288; Wolveridge v. Steward, 3 M. & 60. 
 Sc. 561, 30 E. C. L. 521.
 
 533 CONDITIONS AGAINST ASSIGN:HENT AND SUB-LETTING. [§ 464 
 
 law.^** So a recital in an assignment of a lease that the assignee 
 assumes the covenants in the lease has a similar effect. It has been 
 argued that the word "assumes" is not broad enough to impose a 
 personal liability. But if it is intended simply that the assignee shall 
 take the leasehold subject to the covenants in the lease, the clause 
 in which the word "assumes" appears is not necessary. Unless that 
 word is used to impose a personal liability on the assignee, it is wholly 
 unnecessary, and serves no purpose. A rule of construction requires 
 courts to give force and effect, if possible, to all the language used. 
 So the effect of the expression under consideration is to establish a 
 privity of contract between the assignee and the lessor.^*^ In one 
 case an assignment was made part of a leasehold estate created by 
 a lease which showed the rent annually becoming due under it 
 was payable as one sum at one stated time. In a separate sentence 
 came the agreement that as part of the consideration of the deed of 
 assignment, the assignee agreed to pay the rent of said premises that 
 may annually become due. The deed first recited that the land con- 
 veyed by it was part of the leased "premises," and the agreement was 
 to pay the rent of "said premises" that may annually become due. 
 The "premises" mentioned in the agreement were held to be not the 
 premises conveyed by the deed, but the entire leased premises, for 
 upon these alone did any rent annually become due. Therefore the 
 court concluded that the assignee had bound himself for the payment 
 of the entire rent reserved in the lease.^*® 
 
 IV. Conditions Against Assignment and Subletting. 
 
 § 464. A covenant in a lease against alienation without license is 
 at least as old as Dumpor's case,^*" but this by no means proves such a 
 covenant to be a usual one. Though in the Court of Exchequer it 
 was held that on an agreement for a lease, with all usual and reason- 
 able covenants, a covenant not to under-lease or assign is implied,^*^ 
 and Lord Kenyon determined that an agreement for a lease, with fair 
 
 ^"Dean v. Walker, 107 111. 540; 71, 2 N. C. 280; Douglass v. Cross, 
 
 Springer v. De Wolf, 194 111. 218, 56 How. Pr. (N. Y.) 330. 
 
 62 N. E. 542, affirming 93 App. 260; ^"Springer v. De Wolf, 194 111. 
 
 Stout V. Folger, 34 Iowa 71; Drury 218, 62 N. E. 542, 93 111. App. 260. 
 
 v. Tremont Imp. Co., 13 Allen ^'^^ Woodruff v. Baldwin, 72 Conn. 
 
 (Mass.) 168; Locke v. Homer, 131 439, 44 Atl. 748. 
 
 Mass. 93; Sparkman v. Gove, 44 N. ="4 Coke 119b. 
 
 J. L. 252; Schley v. Fryer, 100 N. Y. '« Polkingham v. Croft, 3 Anstr. 
 
 700.
 
 §' 464] ASSIGNMENT OF LEASES. . 534 
 
 and reasonable covenants, implied a covenant not to assign or under- 
 let, without leave of the landlord in writing/*^ yet it has been decided 
 both by Lord Thurlow and Lord Eldon that a covenant not to assign 
 without license, does not come within the meaning of a contract to 
 give a lease with common and usual covenants without some more 
 express stipulation.^^" In this conclusion Sir William Grant finally 
 concurred,^^^ having been in doubt in two previous cases when he felt 
 himself bound by earlier decisions.^^- It was said elsewhere that the 
 question of usual covenants was a proper subject of inquiry as to the 
 usual and customary covenants in the neighborhood.^^^ If in plain 
 terms the lessee agrees not to underlet or assign the lease without the 
 written consent of the lessor and then follows the mutual agreement 
 that, in case of default in any of the covenants of the lessee, the lessor 
 has a right to declare the term ended and reenter ; this is not a mere 
 covenant not to assign, but it is a power of reentry for a breach of a 
 covenant, and this has the force of a condition.^^* It is usually true 
 that, in the construction of deeds, courts will incline to interpret the 
 language as a covenant rather than as a condition,^^^ and covenants 
 against assignment or underletting are not favorably regarded by the 
 courts and are liberally construed in favor of the lessses, so as to pre- 
 vent the restriction from extending any further than is necessary.^^*^ 
 But the intention of the parties to the instrument, when clearly ascer- 
 tained, must control.^^'^ A condition in a lease for years or for life 
 that the lease is to be void if the lessee assigns is valid and enforce- 
 able,^^* and where a lease prohibits sub-letting, no valid sub-lease can 
 
 =•» Morgan v. Slaughter, 1 Esp. N. Div. 637; Riggs v. Pursell, 66 N. Y. 
 
 P. 8. 193; Boyd v. Fraternity Hall Assn., 
 
 ^=° Henderson v. Hay, 3 Brown, ch. 16 HI. App. 574; Goldsmith v. Wil- 
 
 632; Church v. Brown, 15 Ves. 258, son, 68 Iowa 685, 28 N. W. 16; Ca- 
 
 271. ley v. Portland, 12 Colo. App. 397, 
 
 ^^ Browne v. Raban, 15 Ves. 528, 56 Pac. 350; Medinah Temple Co. v. 
 
 531. Currey, 58 111. App. 433; Hutchin- 
 
 ^^=Vere v. Loveden, 12 Ve& 179, son v. Ulrich, 145 111. 336, 34 N. E. 
 
 184; Jones v. Jones, 12 Ves. 186, 189. 556; Eckhart v. Irons, 128 111. 568, 
 
 '==Boardman v. Mostyn, 6 Ves. 467, 20 N. E. 687; Livingston v. Stickles, 
 
 471. 7 Hill (N. Y.) 253. 
 
 ='"Kew v. Trainor, 150 111. 150, 37 «'Kew v. Trainor, 150 111. 150, 37 
 
 N. E. 223, 50 111. App. 629. N. E. 223, 50 App. 629. 
 
 ^== Gallagher v. Herbert, 117 111. =■'" Roe v. Sales, 1 M. & S. 297; 
 
 160, 7 N. B. 511. Hargrave v. King, 5 Ired. Eq. (N. 
 
 '"'Presby v. Benjamin, 169 N. Y. Car.) 430; Emery v. Hill, 67 N. H. 
 
 377, 62 N. E. 430, reversing 53 App. 330, 39 Atl. 266.
 
 535 COXDITIOXS AGAINST ASSIGNMENT AND SUB-LETTING. [§ 465 
 
 be made without the lessor's consent. ^^^ Such rights are recognized 
 by courts of equity, and the sub-letting of an apartment in an apart- 
 ment house has been enjoined where the lease contained a covenant 
 against it.^^° A condition against sub-letting would only continue as 
 long as the term lasted, and when the lessee had elected to exercise 
 an option to purchase the property, a second sale by him before he 
 acquired legal title would not be a breach of the covenant against 
 sub-letting causing a forfeiture.^ •'^ 
 
 An ordinary condition against sub-letting authorizes the lessor to 
 enter upon the lessee and terminate the lease for breach of condition 
 and, although not expressly conferred, a similar right would exist 
 against a sub-tenant. The only use of such a clause to enforce a for- 
 feiture for sub-letting would be against a sub-tenant, and text-books 
 assume that a careful landlord will put it in his leases.^^^ Yet but 
 one case is referred to for the position that a landlord may evict a 
 sub-tenant under such a clause, and in that case it was assumed with- 
 out question.^*'^ 
 
 In estimating the value of a leasehold term the right of the lessee 
 to sub-let or assign becomes a material question, and it is error for a 
 judge to instruct that in estimating the damages sustained by a lessee 
 by reason of being evicted, the fact that the lease was not assignable 
 without the lessor's consent was immaterial. The lessee's affairs or 
 his purposes might have been changed, and it is manifestly a diminu- 
 tion of the value of property that its beneficial enjoyment must 
 depend upon the continuance of the purposes, condition or employ- 
 ment of its possessor, or on the will of another person.^*'* 
 
 § 465. That an assignment contrary to a restriction in a lease is 
 not absolutely void but voidable only at the election of the lessor is a 
 well established general principle.^"^ A covenant not to underlet or 
 assign is made solely for the benefit of the lessor or his assigns, and 
 he or they only can take advantage of it and terminate the estate 
 
 '=» Meyer v. Rothschild, 46 La. ^" Rice v. Baker, 2 Allen (Mass.) 
 
 Ann. 1174, 15 So. 383; Emery v. Hill, 411. 
 
 67 N. H. 330, 39 Atl. 266. '''- Springer v. Chicago &c. Co., 102 
 
 ="" Barrington &c. Assn. v. Wat- 111. App'. 294; Betts v. Dick, 1 Pen- 
 son, 38 Hun (N. Y.) 545. new. (Del.) 268; Mabry v. Harp, 53 
 
 '•^^Deglow v. Meyer, 12 Ky. L. R. Kan. 398, 36 Pac. 743; Bemis v. 
 
 954. Wilder, 100 Mass. 446; Holman v. 
 
 ^"^Frazier v. Caruthers, 44 III. Delin, 30 Ore. 428, 47 Pac. 708; 
 
 App. 61. Montecon v. Faures, 3 La. Ann. 43. 
 
 ^•^ Arnsby v. Woodward, 6 B. & C. 
 519.
 
 § 465] ASSIGNMENT OF LEASES. 536 , 
 
 demised by an entry for breacli of the condition.^^^ In tlie absence 
 of any agreement to the contrary, however, this right of the lessor 
 may be transferred and may be enforced by one to whom the reversion 
 has been assigned by the lessor.^®^ The clause in a lease providing 
 that the premises shall not be assigned without the written assent of 
 the lessors is clearly for the benefit of the lessors only. It does not 
 render the assignment when otherwise made absolutely void, but void- 
 able only at the option of the lessors or their representatives. 
 
 Any act done by a landlord, knowing of cause of forfeiture, affirm- 
 ing the existence of the lease and recognizing the lessee as his tenant, 
 is a waiver of such forfeiture.^®^ Where a lease prohibits the sub- 
 letting of a part or the assignment of any less portion than the whole, 
 a breach of such restriction cannot be taken advantage of by the lessee. 
 If the lessor does not avoid a contract of the prohibited kind, it will 
 bind the lessee.^^^ It is not for the lessee to set up the breach of 
 his own covenant not to assign or sub-let, to defeat the assignee's 
 right. Such a stipulation is inserted for the benefit of the lessor and 
 those claiming under him, who alone can take advantage of any breach. 
 This is equally true whether the stipulation is in the form of a cov- 
 enant or is a condition with a right of reentry reserved. In either 
 case the lease is valid till the lessor has exercised his right to terminate 
 it.^'^'* An assignment of a lease contrary to its terms does not of itself 
 divest the leasehold estate, which passes to the assignee subject only 
 to the lessor's claim for damages or right to reenter; and the assign- 
 ment is sufficient consideration to support a promisory note.^^^ An 
 assignment of a lease, though made against the terms of the instru- 
 ment, passes a subsisting title to the assignee. He becomes the 
 owner of the leasehold estate, and as such would be liable on all the 
 covenants which run with the land, and bound to pay rent as long as 
 the lease was allowed to continue.^^^ 
 
 ^*« Shumway v. Collins, 6 Gray '*"' Willoughby v. Lawrence, 116 111. 
 
 (Mass.) 227; Montecon v. Faures, 3 11, 4 N. E. 356. 
 
 La. Ann. 43; Hardware Co. v. Mc- =*'° Shattuck v. Lovejoy, 8 Gray 
 
 Carty, 10 Colo. App. 200, 209, 50 (Mass.) 204; Bemis v. Wilder, 100 
 
 Pac. 744; Chicago Attachment Co. v. Mass. 446. 
 
 Davis &c. Co., 33 111. App. 362; "Web- ^" Spear v. Fuller, 8 N. H. 174; 
 
 ster V. Nichols, 104 111. 160, affirmed, Eldredge v. Bell, 64 Iowa 125, 19 N. 
 
 25 N. E. 669. W. 879; Winkler v. Gibson, 2 Kan. 
 
 2" Cordeviolle v. Redon, 4 La. App. 621. 
 
 Ann. 40. =*'- Spear v. Fuller, 8 N. H. 174. 
 
 '<"« Webster v. Nichols, 104 111. 160; The case of Hynes v. Ecker, 34 Mo. 
 
 Randol v. Tatum, 98 Cal. 390, 33 App. 650, holds that assignees would 
 
 Pac. 433. not be liable for rent till the lessor
 
 537 CONDITIONS AGAINST ASSIGNMENT AND SUB-LETTING. [§ 466 
 
 After an assignment in violation of a condition in a lease, it is 
 incumbent on the lessors to reenter in order to terminate the lease 
 and revest the estate in them ; until they do this they are not reinvested 
 of their old estate.^^^ So the owner of the reversion cannot, by merely 
 assuming that the lease has been terminated by such violations of 
 its conditions, confer any right to immediate possession upon another 
 by the execution of a lease of the same premises to him, without having 
 taken any legal steps to cancel the prior lease or to retake possession,^^* 
 A tenant by sub-letting merely assumes the risk of being ousted if his 
 landlord does not acquiesce in the contract ; he does not convert him- 
 self into a trespasser or an insurer.^^^ 
 
 It does not prevent a recovery of rent from a lessee that the lessor 
 refuses to give his written consent to an assignment of the lease, such 
 consent being essential to a valid transfer. Nor is the refusal to give 
 such consent a ground for the cancellation of the lease at the instance 
 of the lessee. Such conduct is not an unlawful abuse of the privisions 
 of the contract requiring written consent to a sub-letting.^^^ 
 
 § 466. An ordinary covenant against sub-letting and assignment 
 is not broken by a transfer of the leased premises by operation of law 
 but the covenant may be so drawn as to expressly prohibit such a 
 transfer, and in that case the lease would be forfeited by an assign- 
 ment by operation of law,^^^ Where a lessee covenanted "not to let, 
 set, assign, transfer, make over, barter, exchange, or otherwise part 
 with the premises," and afterwards gave a warrant of attorney to 
 confess Judgment, on which the lease was taken in execution and sold ; 
 this was held to be no forfeiture, for all the words used in the lease 
 
 had given his assent to the assign- 204; Godfrey v. Black, 39 Kan. 193; 
 
 ment as required by the lease. Holman v. De Lin, 30 Ore. 428, 47 
 
 "Lessees, restrained from assigning Pac. 708; Deglow v. Meyer, 12 Ky. L. 
 
 without leave, can have assigns only R. 954; Comyn's Land. & Ten. 104, 
 
 of two sorts," says Rombauer, P. J., Co. Lit. 214 b. 
 
 in the opinion, "either an assign ap- ^■* Winkler v. Gibson, 2 Kan. App. 
 
 proved by the landlord or an as- 621. 
 
 sign by appointment or designation ^^ Hundley v. Moore, 6 Ky. L. R. 
 
 of law; they cannot have an as- 519. 
 
 sign of their own appointment, un- ^'^ Hill v. Rudd, 99 Ky. 178, 35 S. 
 
 approved by the landlord." The fal- W. 270. 
 
 lacy of this reasoning lies in the ^" Parks v. Union Mfg. Co., 14 Ky. 
 
 failure to distinguish between the L. R. 206; Farnum v. Hefner, 92 Cal. 
 
 power to assign and the right to as- 542, 28 Pac. 602; Jackson v. Corliss, 
 
 sign. 7 Johns. (N. Y.) 531; Riggs v. Pur- 
 
 ^' Spear v. Fuller, 8 N. H. 174; sell, 66 N. Y. 193, 198; Jackson v. 
 
 Shattuck v. Lovejoy, 8 Gray (Mass.) Silvernail, 15 Johns. (N. Y.) 278.
 
 I 466] ASSIGXMEXT OF LEASES. 538 
 
 point to some act to be done by the tenant himself, and there is a 
 distinction between acts that the party does voluntarily and those that 
 pass in invitum; and judgments in contemplation of law, always pass 
 in invitum.^''^ But it appearing upon a second suit that the tenant 
 had given the warrant of attorney for the express purpose of enabling 
 the creditor to take the lease in execution, this was held to be in fraud 
 of the covenant, and therefore a forfeiture, so the landlord could re- 
 cover the premises in ejectment under the clause of reentry.^^'^ A 
 colorable sale on execution, resorted to for the purpose of transferring 
 the term, would be a breach of a covenant against voluntary assign- 
 ment.^^" It has also been held that the assignees under a bankruptcy 
 commission might dispose of a lease without incurring a forfeiture 
 on the ground that a commission of bankruptcy is a statutable execu- 
 tion and that there was not any difference between the compulsory 
 cause under which the sale was made in that case and a sale on exe- 
 cution. The term "assigns" in the covenant related to voluntary 
 assigns and not to assignees in law.^®^ But the lessor might have 
 provided against the assignment under the commission by an express 
 proviso ;^®^ or even against a sale on execution.^*^ In view of the 
 settled rule that an assignment by operation of law passes a leasehold 
 estate to the assignee discharged from an ordinary covenant against 
 assignment, the same result has been held to follow where the transfer 
 arises from voluntary proceedings in insolvency as well as where the 
 proceedings are in invitum, provided there is no indication that the 
 proceedings are colorable, merely, for the purpose of effecting the 
 transfer in fraud of the lessor.^^* But an express condition against 
 assignments by operation of law would be broken by an involuntary 
 assignment, such express mention of the mode of assignment being 
 essential to cause a forfeiture,^ *^ and a breach would also be caused 
 by a lessee's general assignment, accompanied by the entry of his 
 assignee.^^® The clause against assignment by operation of law may 
 
 5'» Doe v. Carter, 8 Term R. 57. ^' Farnum v. Hefner, 79 Cal. 575, ■ 
 
 "''Doe V. Carter, 8 Term R. 57; 21 Pac. 955; Davis v. Eyton, 7 Bing. 
 
 Doe V. Hawke, 2 East 481. 154; Doe v. David, 5 Tyrw. 125. 
 
 =^° Farnum V. Hefner, 79 Cal. 575, '«* Smith v. Putnam, 3 Pick. 
 
 21 Pac. 955. (Mass.) 221; Bemis v. Wilder, 100 
 
 ^''^Doe V. Bevan, 3 M. & S. 353; Mass. 446. 
 
 Sherman, Ex parte. Buck 462 ; Phil- ^' Farnum v. Hefner, 79 Cal. 575, 
 
 pot V. Hoare, Ambl. 480, 2 Atk. 219. 21 Pac. 955. 
 
 ^'=Roe V. Galliers, 2 Term R. 133; ^sa gj^j^jj y Goodman, 149 111. 75, 
 
 Doe V. Clarke, 8 East 185. See also, 36 N. E. 621. 
 
 Randol v. Scott, 110 Cal. 590, 42 Pac. 7} 
 
 976. 
 
 1
 
 539 CONDITIOXS AGAIXST ASSIGXMEXT AXD SUB-LETTIXG. [§ 467 
 
 be unnecessary in case of a general assignment, as it has been held 
 that a general assignment for the" benefit of creditors is a voluntary 
 assignment and not one by operation of law. The act by which the 
 title to the assigned estate is transferred from the assignor to the 
 assignee is purely voluntary on the part of the former. Voluntary 
 assignments for the benefit of creditors are transfers without com- 
 pulsion of law. They are termed "voluntary" to distinguish them 
 from such as are made by compulsion of law, as under statutes of 
 bankruptcy and insolvency.^* ^ The authorities generally seem to 
 sustain the position that when an assignment by the lessee is a volun- 
 tary one, the lease does not pass to the assignee by operation of law, 
 but by act of the party, and the distinction in this regard between 
 voluntary and involuntary assignments is well defined.^** 
 
 § 467. The rule is universally admitted that a covenant not to as- 
 sign a lease is not broken by an underletting ;3s» but it is said that the 
 converse of this is not true, and that an assignment is a violation of 
 a stipulation not to underlet. It does not necessarily follow that the 
 lessor, as he did not choose that the tenant should assign, therefore 
 intended to restrain underletting. But, on the other hand, it would 
 be very strange, if the landlord meant to restrain underletting, that 
 he should not mean to forbid the tenant to part with the whole in- 
 terest.^''" So the rule has become incorporated in the text-books that 
 a covenant not to underlet restrains assignment. From this conclu- 
 sion there has been a vigorous dissent by Chief Justice Beasley of the 
 New Jersey Court. He points out that the doctrine is of modern origin 
 and, since it was first expounded, has received no sanction from the 
 English cases. "Was it very strange," proceeds the learned Justice 
 in criticism of the reason for the rule, "that if the landlord meant 
 to restrain underletting that he should not mean to forbid the tenants 
 to part with his whole interest. A person advised of his legal position 
 might very intelligently do this. In many respects an underlease is 
 more unfavorable to the owner of the land than an assignment. An 
 
 ^^Medinah Temple Co. v. Currey, 17 Johns. (N. Y.) 66; Jackson v. Sil- 
 
 162 111. 441, 44 N. E. 839, reversing vernail, 15 Johns. (N. Y.) 278; Cru- 
 
 58 111. App. 433. soe v. Bugby, 2 W. Bl. 766, 3 Wils. 
 
 '■'Holland v. Cole, 1 H. & C. 67; 234; Kinnersley v. Orpe, 1 Doug. 56; 
 
 Rochford v. Hackman, 9 Hare 475; Holford v. Hatch, 1 Doug. 183; Har- 
 
 Brandon v. Aston, 21 Eng. Ch. 23. grave v. King, 5 Ired. Eq. (N. Car.) 
 
 =^''* Field V. Mills, 33 N. J. L. 254; 430; Copland v. Parker, 4 Mich. 660. 
 
 Moore v. Guardian Trust Co., 173 ='" Greenaway v. Adams, 12 Ves. 
 
 Mo. 218, 73 S. W. 143; Den v. Post, 25 395; Den v. Post, 25 N. J. L. 285. 
 N. J. L. 285; Jackson v. Harrison,
 
 § 467] ASSIGNMENT OF LEASES. 540 
 
 undertenant taking the possession does not put himself in privity of 
 estate with the original lessor ; nor is he liable to him for the perform- 
 ance of the covenants running with the land, such as the covenant to 
 pay rent, or to keep the premises in repair. An assignee of the lease, 
 on the contrary, can claim no such disconnection or exemption. Is 
 it then so improbable that a landlord might be willing to permit an 
 assignment and yet might be opposed to an undertenancy ? That he 
 might say to his tenant, 'You may turn over your whole interest, be- 
 cause the assignee will, in point of estate, be in privity with me, and 
 will be compellable to perform the most important covenants in the 
 lease, but I cannot consent to receive an undertenant who will be a 
 stranger to my title and whom I can hold to no responsibility ?' I am at 
 a loss to perceive anything irrational or even improbable in a provision 
 of this kind."3»i 
 
 In Cruesoe v. Bugby,^^^ the covenant was that "the lessee, his ex- 
 ecutors, or administrators, shall not nor will at any time or times 
 during this demise, assign, transfer or set over, or otherwise do or 
 put away this present indenture of demise, or the premises hereby de- 
 mised or any part thereof" without the consent of the lessor. It was 
 held that this did not restrain sub-letting. "Assign^ transfer and set 
 over" are mere words of assignment, and "otherwise do or put away" 
 signifies any other mode of getting rid of the premises entirely and can- 
 not be applied to the making of an underlease. "The lessor, if he 
 pleased," say the court, "might certainly have provided against the 
 change of occupancy as well as against an assignment, but he has not 
 done so by words which admit of no other meaning." But where the 
 proviso was "not to assign or otherwise part with the premises or any 
 part thereof, for the whole or any part of the term," these words were 
 taken to include an underlease. ^^^ A provision that "the leseee and his 
 administrators shall not set, let or assign over" renders it impossible 
 to sub-let without incurring a forfeiture, the distinction resting on the 
 use of the word "let." "The case of Crusoe v. Bugby," said Justice 
 Butler in pronouncing this decision, "though a pretty strong one, 
 does not come up to the present one, for there the word let is not 
 used; but that is a material word here, and we cannot reject it."^^* 
 
 *" Field v. Mills, 33 N. J. L. 254, ^'=2 W. Bl. 766, 3 Wils. 234. 
 
 257. To same effect see, Sheets v. ^^ Doe v. Worsley, 1 Camp. 20; 
 
 Selden, 7 Wall. (U. S.) 416; Liv- Roe v. Sales, 1 M. & S. 297. 
 
 ingston v. Stickles, 7 Hill (N. Y.) ^^* Roe v. Harrison, 2 Term R. 425; 
 
 253; Fox v. Swann, Styles 482; Lynde v. Hough, 27 Barb. (N. Y.> 
 
 Lynde v. Hough, 27 Barb. (N. Y.) 415. 
 415. 
 
 I
 
 541 CONDITIONS AGAINST ASSIGNMENT AND SUB-LETTING. [§ 468 
 
 The general rule might be stated to be that where all the words of a 
 covenant against assignment could have distinct effect and operation, 
 without referring at all to an underlease, underletting is not for- 
 bidden; but when some word or words in the covenant necessarily 
 refer to a sub-lease, sub-letting is forbidden. 
 
 A statutory provision against assignment would not prevent the 
 lessee from sub-letting the premises. ^^^ 
 
 § 468. A covenant not to assigfn or sub-let is not necessarily broken 
 "because some one other than the lessee shares in the benefits and ad- 
 vantages of a leasehold estate. The use of the third party may be 
 by virtue of a mere license, and a covenant not to sub-let is not broken 
 by licensing a third person to do certain acts on the land. In general, 
 a grant is to be regarded as a license rather than a lease where there 
 is no term, no reservation of rent, and no possession conferred.^^^ / 
 Therefore, an agreement by a lessee of a building to allow a third 
 person, in consideration of an annual payment by him, to place a 
 sign upon the outside wall of the building, for a stated time, is not a 
 breach of the covenant in the lease not to underlet any part of the 
 premises. This was a license and not a lease. It was permission to 
 do a particular act, namely, to affix a sign to the wall, and gave no 
 authority to do any other act on the premises. The fact that the 
 permission was paid for, and that the act permitted was a continuing 
 one, are ordinary elements of a license. Every license to do an act 
 upon land involves the exclusive occupation of the land by the licensee, 
 so far as is necessary to do the act, and no further. It was clearly 
 the intention that the licensee should have no other right in the prem- 
 ises than to affix his sign to them. An agreement of this nature can- 
 not be construed as a lease.^^'^ 
 
 Where a lease provided that the lessee should not "release or assign 
 his lease of the premises," it was held that a mere sub-lease of a portion 
 of the premises for thirt}^ days, which hardly amounted to more than 
 a license to occupy, did not constitute the breach.^^^ In another case 
 a tenant was enjoined not to sub-let the whole or assign the lease; such 
 language contains a strong implication that the tenant might sub-let 
 parts of the premises. In connection with the circumstance that at 
 
 ^^ Moore v. Guardian Trust Co., =" Lowell v. Strahan, 145 Mass. 1, 
 
 173 Mo. 218, 245, 73 S. W. 143. 12 N. B. 401, 1 Am. St. 422. 
 
 5"" Pence v. St. Paul &c. R. Co., 28 '"" Leduke v. Barnett, 47 Mich. 158, 
 
 Minn. 488, 11 N. W. 80; Sommers v. 10 N. W. 182. 
 Reynolds, 103 Mich. 307, 61 N. W.
 
 § 468] ASSIGNMENT OF LEASES. 54^' 
 
 the time the lease was executed the lessee was then sub-letting parts 
 thereof, it is conclusive that the parties intended the sub-letting of 
 parts less than the whole.^^^ Nevertheless, a stipulation in ordinary 
 form against underletting would be broken by a sub-lease of any part 
 of the demised premises. The extent of the premises sub-let would 
 ordinarily be immaterial.*"" A covenant against assignment in a 
 lease to two was held to be broken by an assignment of the undivided 
 moiety of one lessee to the other lessee. The covenant though it 
 related to the estate of the two, necessarily involved the interest of 
 each; it meant that neither of them could assign the whole or any 
 part of his interest without consent; otherwise a tenant might assign 
 all but a sixty-fourth part. An assignment of sixty-three parts would 
 be a breach of the covenant.*"^ 
 
 A tenant by placing a servant in charge of leased premises dur- 
 ing his absence does not, as a matter of law, violate a covenant not 
 to sub-let without the landlord's consent. Even under a liberal con- 
 struction of the covenant, to constitute a violation of the lease, the 
 lessee must have attempted to put in possession of the premises a 
 new tenant, not a new occupant. To be a tenant a person must have 
 some estate, be it ever so little, such as that of a tenant at will or on 
 sufferance. A person may be in occupation of real estate simply as a 
 servant or licensee of liis master. Therefore, if the lessee sought to 
 place his porter in occupation of the premises as caretaker or as servant, 
 he was entirely within his rights.*"- According to an unofficially re- 
 ported case in Kentucky, a covenant against sub-letting or assignment 
 is not broken by the renting of pasture rights on a farm after the crop 
 has been gathered, because the tenant still continues in possession.*"^ 
 
 A lease of a house to a single woman contained the proviso that 
 it was let "only for herself to occupy as a residence," with covenants 
 against disposition of a whole or any part. It was held that her 
 marriage to a widower with four children and the continued residence 
 of all in the house was not a breach of the proviso or covenants. The 
 whole instrument taken together clearly contemplated that the lessee 
 should occupy the premises in person, but it did not follow that the 
 narrow construction contended for was the true one. That construc- 
 
 ^ Spencer v. Commercial Co., 30 *" Varley v. Coppard, L. R., 7 C. P. 
 
 Wash. 520, 71 Pac. 53; Roosevelt v. 505, 
 
 Hopkins, 33 N. Y. 81. *"= Presby v. Benjamin, 169 N. Y. 
 
 '«• Boston, C. & M. Ry. Co. v. Bos- 377, 62 N. E. 430, reversing 53 App. 
 
 ton &c. R. Co., 65 N. H. 393, 451-457, Div. 637. 
 
 23 Atl. 529; Emery v. Hill, 67 N. H. "' Harwood v. Hopkins, 4 Ky. L. 
 
 330, 39 Atl. 266 R. 631. 
 
 I
 
 543 CONDITIONS AGAINST ASSIGNMENT AND SUB-LETTING. [§' 469 
 
 tion would exclude every one, relative, companion and friend, as well 
 as husband. If the lessor had intended that, he should have used lan- 
 guage clearly expressing such an intent and should not have left it 
 to be inferred from language of doubtful meaning. The lease as 
 drawn could fairly and reasonably be so interpreted as to allow the 
 lessee to receive a relative, friend, or husband, as a companion.*"* 
 
 Where a lease is jointly to two, and by an arrangement between 
 them, each occupies a several portion of the premises, such several 
 uses cannot justly be regarded as breaches of a covenant not to 
 underlet.*"^ 
 
 § 469. Change in business relations as breach of covenant not to 
 sub-let. — A stock in trade of a lessee upon the leased premises was sold 
 on execution by one of his creditors, but the goods were not removed 
 from the store and the business was carried on therein as before, by 
 permission of the lessee. The lessee remained in the store and con- 
 ducted the business as before, except that the money received from sales 
 went to the purchaser. The latter had nothing to do with the business 
 except to go to the store daily for a short time and sign checks. The 
 lessee never formally assigned, transferred, or disposed of his interest 
 in the lease. On this state of facts there was held to be no breach 
 of a covenant not to assign or sub-let. The lessee was there managing 
 and controllng the business, as he had done before the stock was sold ; 
 certainly he had not assigned or parted with his lease, neither had he 
 formally underlet the leased premises. It seems clear that an action 
 for a trespass to the leased premises would necessarily have been 
 brought in the name of the lessee and that he could at any time have 
 lawfully required the purchaser to remove the goods from the store.*"^ 
 In another case a lessee occupied premises as a lumber yard and sold 
 out his business to defendant with an agreement that defendant 
 should have the right to occupy the leased premises as long as the 
 lessee himself was entitled to do so. It was held this was not a license 
 but an assignment of the term and justified the landlord in terminat- 
 ing the lease. The arrangement was in legal effect and practical 
 operation, an assignment of the lease. There was no formal assign- 
 ment of the lease, but there was an equitable transfer 'of it. No 
 greater right could have been enjoyed, had there been a formal and 
 regular assignment of the lease and premises. The purpose of the 
 
 *^ Schroeder v. King, 38 Conn. 78. ^^ Munkwitz v. Uhlig, 64 Wis. 380, 
 *°' Boyd V. Fraternity Hall Ass'n, 25 N. W. 424. 
 16 111. App. 574.
 
 § 470] ASSIGXMEXT OF LEASES. 544 
 
 stipulation in the lease was to reserve to the lessor the right to say 
 who should occupy the premises. By the stipulation in the lease, 
 the lessee was prohibited from placing any other person in possession 
 of the premises without the written consent of the lessor. By the 
 arrangement made he sold the right to use the premises and placed the 
 defendant in possession.*"'' Where a tenant without license from his 
 landlord takes a third party into partnership with him and lets such u 
 party into joint possession with him, it is not a breach of a covenant Jj 
 not to sub-let, even though the partnership is formed for the express 'J 
 purpose of not breaking the covenant against sub-letting,*"^ Yet if 
 one of the new partners taken into the firm by the lessee is put in 
 exclusive possession of a portion of the leased premises, that would 
 be a breach of the covenant not to assign or underlet.*"^ Moreover, ; 
 the execution of an instrument of assignment in ordinary form would 
 have the effect of constituting the transaction a violation of the stipula- 
 tion. So if one firm is dissolved and another one formed and the lease is 
 assigned to the new partnershij) by the original one, this has been held 
 a breach of a condition against assignment.*^" And in a case where 
 a partnership formed a corporation and a firm lease was assigned to :j 
 the new corporation, this transfer forfeited the lease. The formation 
 of the corporation by the members of the old firm and others who 
 were allowed to become stockholders presents additional objections to ^ 
 those in the case of the admission of new members to the firm. As new 
 stockholders may acquire control of the corporation, it is plain that 
 the personal integrity and carefulness which the lessors sought to 
 secure by the provision in the lease against the lessee's assignment 
 of it, would cease and the recklessness of others might be substituted ; 
 and the lessors would be deprived of the security against careless ^\ 
 injury to the property for which they stipulated. The change from 
 a partnership to a corporation was a substantial change and not a 
 mere matter of form.*^^ ■ 
 
 § 470. Rule in Dumpor's case. — In trespass between Dumpor and 
 Symms it appeared that a lease had been made with a proviso that 
 the lessee or his assigns should not alien the premises to any person 
 
 "' Indianapolis &c. Union v. Cleve- *"" Roe v. Sales, 1 M. & S. 297. ^ 
 
 land &c. R. Co., 45 Ind. 281. "" Varley v. Coppard, L. R., 7 C. ^^j 
 
 ""'Boyd V. Fraternity Hall Ass'n, P. 505. 
 
 16 111. App. 574; Roe v. Sales, 1 "^ Emery v. Hill, 67 N. H. 330, 39 
 
 M. & S. 297; Roosevelt v. Hopkins, Atl. 266. 
 33 N. Y. 81; Hargrave v. King, 5 
 Ired. Eq. (N. Car.) 430. 
 
 f 
 H
 
 545 CONDITIOXS AGAINST ASSIGXMEXT AXD SUB-LETTIXG. [§ 471 
 
 or persons, without the special license of the lessors. And afterwards 
 the lessors by their deed licensed the lessee to alien, or demise the land 
 or any part of it, to any person or persons. It was resolved by the court 
 after argument that the first alienation by license had determined the 
 condition so that no alienation which might afterwards be made could 
 break the proviso, or give cause of entry to the lessors, for the lessors 
 could not dispense with an alienation at one time and require that the 
 estate should remain subject to the same proviso thereafter.*^^ Though 
 disapproved of, this decision was acted on for a long time. "The profes- 
 sion have always wondered at Dumpor's case," said Chief Justice Mans- 
 field, "but it has been law so many centuries that we cannot now reverse 
 it."*^^ Lord Eldon said: "Though Dumpor's case always struck me 
 as extraordinary, it is the law of the land."'*^* Accordingly, the case 
 has been affirmed by many subsequent decisions, and was even carried 
 further, for it was held that whether the license to assign was general 
 or particular, as "to one particular person subject to the perform- 
 ance of the covenants in the original lease," still the condition was 
 gone, and the assignee might assign without license.*^^ At length the 
 law in England was changed by act of Parliament and there the rule 
 of Dumpor's case ceased to be law, so far as it relates to conditions 
 in leases, and to licenses and waivers of such conditions.*^ ^ 
 
 § 471. In the United States the rule in Dumpor's case, while sub- 
 ject to some adverse criticism, has generally been received as settled 
 law, though in many of the cases where the topic arose, no actual de- 
 cision upon the precise point was necessary.*^'' A condition cannot 
 
 *" Dumpor's Case, 4 Coke 119b. 22 Wend. 201; Reid v. John F. 
 
 "^ Doe v. Bliss, 4 Taunt. 735. Wiessner Brew. Co., 88 Md. 234, 40 
 
 "*Brummell v. Macpherson, 14 Atl. 877; Siefke v. Koch, 31 How. 
 
 Ves. 173. Pr. (N. Y.) 383; Lynde v. Hough, 
 
 ^"Brummell v. Macpherson, 14 27 Barb. (N. Y.) 415; Murray v. 
 
 Ves. 173. Harway, 56 N. Y. 337; Conger v. 
 
 "« 22 and 23 Vict., c. 35, and 24 Duryee, 90 N. Y. 594, 12 Abb. N. C. 
 
 Vict., c. 38. 43; Wertheimer v. Circuit Judge, 83 
 
 *" Chipman v. Emeric, 5 Cal. 49 
 Gannett v. Albree, 103 Mass. 372 
 Pennock v. Lyons, 118 Mass. 92 
 
 Mich. 56, 47 N. W. 47; Dickey v. 
 McCullough, 2 Watts & S. (Pa.) 
 88; Sharon Iron Co. v. City of 
 
 Merrifield v. Cobleigh, 4 Cush. Erie, 41 Pa. St. 341; McKildoe v. 
 
 (Mass.) 178; Magwire v. Tyler, 25 Darracott, 13 Gratt. (Va.) 278. Ref- 
 
 Mo. 484; Dougherty v. Matthews, erence is made to an exhaustive 
 
 35 Mo. 520; Bleecker v. Smith, 13 article in 7 Am. Law Rev. 616 for 
 
 Wend. (N. Y.) 530; Dakin v. Wil- a review of the American authori- 
 
 liams, 17 Wend. (N. Y.) 447, s. c. ties. On page 640 the conclusions 
 Jones L. & T.— 35
 
 §■ 471] 
 
 ASSIGNMENT OF LEASES. 
 
 546 t|i 
 
 be exempted from the operation of the rule by construing it to be 
 a covenant, and making it the foundation of a personal action against 
 the grantee, although a party who contracts to keep a condition may 
 be liable on the contract after the condition has been discharged as 
 such by a waiver of a particular breach.*^^ 
 
 An early case in New York inclined to the view restricting the rule 
 in Dumpor's case that a dispensation is equivalent to a release, to nega- 
 tive or prohibitory conditions, which if broken are wholly gone, hold- 
 ing it does not apply to conditions which, like a stipulation against 
 underletting, admits of a recurrent breach.*^^ The New York Court 
 of Appeals, however, after examining at length the doctrine of re- 
 curring conditions, almost, if not entirely, repudiated the distinction. 
 The covenants continue, but the particular breach which is the cause 
 of forfeiture does not. A breach must consist of a specific act or 
 omission and continues until the landlord elects to affirm or disaffirm 
 the lease.*^° However this decision may affect the law in New York, 
 it is settled that both in England and in this country the doctrine 
 of continuing conditions is recognized and applied.*^^ According to 
 this view, it is no answer to a breach of a covenant not to underlet, 
 that the lessor had waived another and distinct breach of such cov- 
 enant in the same lease.*^^ 
 
 of the writer are summarized as 
 follows: "We conceive, therefore, 
 that we have shown that the rule 
 in question was never good law, of 
 recognized authority, or in accord 
 with modern decisions; that to 
 overrule it, or, rather, to repudiate 
 its imaginary authority will not 
 only relieve the law of today of 
 an incubus, and bring our system 
 of real property into harmony with 
 common sense, but will, in so doing, 
 involve little or no disturbance to 
 settled estates or vested titles of 
 ownership. And, finally, that the 
 argument of long standing, which 
 is the whole and only ground of 
 acquiescence in its authority by 
 modern judges, ought, in view of 
 these facts, to avail nothing; as an 
 admitted error should receive no 
 greater tolerance, merely because it 
 is venerable. 
 *^* Sharon Iron Co. v. City of Erie, 
 
 41 Pa. St. 341; Dakin v. Williams, 
 17 Wend. (N. Y.) 447; Conger v. 
 Duryee, 90 N. Y. 594, 12 Abb. N. C. 
 43; Dickey v. McCullough, 2 Watts 
 & S. (Pa.) 88. 
 
 ""Bleecker v. Smith, 13 Wend. 
 (N. Y.) 530. 
 
 *^° Conger v. Duryee, 90 N. Y. 594, 
 12 Abb. N. C. 43. 
 
 *^^Doe V. Jones, 5 Exch. 498; Ben- 
 nett V. Herring, 3 C. B. N. S. 370, 
 91 E. C. L. 370; Doe v. Shewin, 3 
 Camp. 134; Doe v. Ulph, 13 A. & 
 E. N. S. 204, 66 E. C. L. 204; Pen- 
 niall v. Harborne, 11 A. & E. N. S. 
 368, 63 E. C. L. 368; Wilson v. Wil- 
 son, 14 C. B. 616, 78 E. C. L. 616; 
 Farwell v. Easton, 63 Mo. 446; 
 Alexander v. Hodges, 41 Mich. 691, 
 3 N. W. 187. 
 
 ^- Seaver v. Coburn, 10 Cush. 
 (Mass.) 324; Farr v. Kenyon, 20 
 R. I. 376, 39 Atl. 241.
 
 5-i7 CONDITIONS AGAINST ASSIGNMENT AND SUB-LETTING. [§ 472 
 
 The covenant by a lessee that he or others having his estate in the 
 premises will not assign the lease without the written consent of the 
 lessor does not by its true construction extend so far as to prohibit 
 a reassignment to the lessee himself without a new and special consent 
 of the lessor. By the lease itself, the lessor consents to take the lessee 
 as his tenant for the full term mentioned in the lease. This consent 
 is available for any reassignment to the original lessee during the 
 term. There is, therefore, no breach of the covenant. The statement 
 that the reassignment has never been consented to means only that 
 no special consent has been given, and this is unnecessary.*^^ 
 
 The entire destruction of a condition against assignment caused 
 by a general license to assign has been held not to be so far-reaching 
 as to efEect a covenant for renewal. It could not be insisted that the 
 renewal lease be executed without any covenant against assigning 
 or sub-letting, because a general license to assign had been given during 
 the original term. The covenant in the case where this conclusion was 
 reached was for renewal on the terms of the executed lease, and a 
 waiver of condition during the term was not in the least inconsistent 
 with the contract for renewal on the terms of the executed lease. The 
 only estate which the lessee could assign or sub-let was the term created 
 by the original lease, and, consequently, that estate was the only one 
 in respect to which the license to sub-let or assign could operate.*^* 
 The right to a renewal is not an estate.*^^ 
 
 § 472. Special license to assign or sub-let. — An agreement to waive 
 a condition against one sub-tenant is not a waiver of the condition as 
 to other parties. The consent that this tenant might enter and con- 
 duct a certain business is a restrictive waiver of the condition, and 
 applies only to the particular tenant and to the business to be carried 
 on by him. The terms of the lease are not waived, generally, by such 
 a waiver of a condition as to a single sub-tenant.*^^ In one case 
 premises were assigned by consent of lessor under express agreement 
 that the assignee should not assign without the written consent of the 
 lessor. The assignee thereby assumed the position of the original 
 lessee, and the condition against assignment was binding on him. 
 Here the license to assign was expressly limited to a particular person 
 and was on the condition that no further assignment of the lease 
 should be made without the written consent of the lessor ; in addition 
 
 *=' McCormick v. Stowell, 138 "» Sutherland v. Goodnow, 108 111. 
 
 Mass. 431. 528. 
 
 "* North Chicago St. R. Co. v. ^=° Wertheimer v. Circuit Judge, 
 
 Le Grand Co., 95 111. App. 435. 83 Mich. 56, 47 N. W. 47.
 
 § 473] ASSIGXMEXT OF LEASES. 548 
 
 the assignee covenanted that he would perform all the covenants and 
 conditions of the original lease to be kept by the lessee. "We do not 
 regard Dumpor's case one which would control here/' say the court, 
 "even if we were inclined to follow it. We perceive no reason why 
 the rule that a license once granted removes the condition, may not 
 be controlled by the contract of the parties."*^^ 
 
 § 473. If an assignee is led to act on the assumption that the as- 
 signment will not be relied upon as a ground for forfeiture, the lessor 
 cannot subsequently enforce the forfeiture.*^^ Thus, in one case a 
 farm was demised for a term of years on a contract that the lessees 
 should plant and cultivate a fruit orchard for a share of the crop. 
 After several years' occupation, the lessor attempted to forfeit the lease 
 for an assignment in violation of agreement made the first year of the 
 lease, but the court denied him this right. "It is difficult to imagine 
 a case," said the court, "where the enforcement of a forfeiture would 
 be more unjust. This action was not commenced till the fourth year 
 after the execution of the lease, and three years after the prohibited 
 assignment; and it is quite apparent that the lessees have performed 
 the burdensome part of their contract without having received any 
 substantial remuneration. They created a valuable property by pre- 
 paring the soil and planting and taking care of the trees imtil they 
 are about in a condition to bear fruit, and now the lessor proposes to 
 take possession of the land thus improved and "appropriate, without 
 consideration, the results of this money and labor."*"^ 
 
 By advising a prospective sub-tenant to lease from the lessee, a land- 
 lord estops himself from insisting on a covenant against sub-letting. 
 The lessor not only told the sub-tenant that he had leased the store, 
 but told him the lessees had power to su1)-let, and begged him to take 
 a sub-lease. In this he not only held out the lessee as having full 
 power of disposition, but he advised the sub-tenant to take a lease.*^'^ 
 Where the owner of property confers upon another an apparent title 
 to or power of disposition over it, he is estopped from asserting his 
 title as against an innocent third party. The rights of such third 
 party do not depend upon the actual authority of the one with whom 
 he dealt, but upon the act of the owner which precludes him from dis- 
 puting the authority he has apparently conferred. ^^^ 
 
 *^^Kew v. Trainor, 150 111. 150, 37 ^^'^ Randol v. Scott, 110 Cal. 590, 
 
 N. E. 223, affirming 50 111. App. 629. 42 Pac. 976. 
 
 *-"« Emery v. Hill, 67 N. H. 330, 39 ^'^ Hill v. Wand, 47 Kan. 340. 27 
 
 Atl. 266; Indianapolis &c. Union v. Pac. 988. 
 
 Cleveland &c. Ry. Co., 45 Ind. 281, "'McNeil v. Tenth Nat. Bank, 46 
 
 § 496. N. Y. 325.
 
 549 CONDITIONS AGAINST ASSIGNMENT AND SUB-LETTING. [§' 473 
 
 The acceptance of rent by a landlord subsequent to an underletting 
 and with knowledge thereof is a waiver of the condition against sub- 
 letting.*^^ After receiving rent of an assignee with a knowledge of the 
 assignment, it is clear that the lessor could not afterwards, consist- 
 ently with good faith, assert his right to enforce a forfeiture for 
 breach of a condition against assignment.*^^ But if at the time of the 
 acceptance of rent he had no knowledge of the underletting, the judg- 
 ment would be in favor of the lessor.*^* However, mere tolerance of a 
 sub-letting is not tantamount to a license. A landlord, by overlooking 
 a former underletting, does not waive the right of reentry for a sub- 
 sequent underletting. Such a proposition is too far-reaching to be 
 acceptable, for on that principle, if a landlord once knew that his 
 premises were out of repair, and did not sue instantly, he could never 
 afterward reenter for a breach of covenant for their not being re- 
 paired.*^^ The acceptance of rent already accrued, accompanied by an 
 express agreement that the breach of condition is not thereby waived, 
 does not affect the right of the lessor to enter for a breach of condition. 
 There is nothing inconsistent between the acceptance of rent due and 
 the enforcement of the right to enter.*^*' The same principle applies 
 when the rent is payable in advance ; acceptance of such Tent is not a 
 waiver of forfeiture although a sub-lease has been made subsequent to 
 the time when the rent was due, but during the time which was cov- 
 ered by the rent payment.*^^ 
 
 The mere fact that the lessor arranged with a general assignee of 
 the lessee for the payment of rent during the time that he was using 
 the property, without declaring to accept under the lease, in no way 
 proved an intention to waive any condition of forfeiture. The assignee 
 had the right to accept or refuse the lease, and until he had made his 
 election, the lessor had a right to deal with him, as to the use of the 
 property, without Teference to the lease. It clearly appeared that it 
 was nci the intention of either party that the payment of rent by the 
 laSsignce should be in any sense a recognition of his right to hold the 
 property under the lease.*^^ 
 
 "' Goodright v. Davids, Cowp. ''* Miller v. Prescott, 163 Mass. 12, 
 
 803; Frauerman v. Lippincott, 39 39 N. E, 409;- Kimball v. Rowland, 
 
 Mo. App. 478. 6 Gray (Mass.) 224. 
 
 *^0'Keefe v. Kennedy, 3 Gush. «=>' Meath v. Watson, 76 111. App. 
 
 (Mass.) 325; Harrington v. Hall, 516. 
 
 126 Mich. 704, 86 N. W. 153; Ran- *^' Medinah Temple Co. v. Currey, 
 
 dol v. Tatum, 98 Cal. 390, 33 Pac. 162 111. 441, 44 N. E. 839, reversing 
 
 433; Goodright v. Davids, Cowp. 803. 58 111. App. 433. 
 
 "* Roe v. Harrison, 2 Term R. 425. 
 
 ^''Doe v. Bliss, 4 Taunt. 735.
 
 CHAPTER VII. 
 
 TERMINATION" OF TENANCY. 
 
 1. Disclaimer by Tenant, §§ 474- 
 
 481. 
 
 2. Forfeiture for Breach of Condi- 
 
 tions, §§ 482-501. 
 
 3. Effect of Non-payment of Rent, 
 
 §§ 502-537. 
 
 4. Surrender, §§ 538-553. 
 
 5. Restoration of Possession to 
 
 Landlord, §§ 554-566. 
 
 6. Emblements, §§ 567-573. 
 
 § 474. Introductory. — There are various modes in which the hold- 
 ing of a tenant may come to an end. Thus, an ordinary term for years 
 will terminate by the mere lapse of time, and a tenancy from year to 
 year may be determined at the commencement of any of the recur- 
 ring periods by giving notice such as is required by statute in the 
 jurisdiction where the property is situated. The same is true of ten- 
 ancies at will and by sufferance. A holding of any kind is also brought 
 to an end by the destruction of the subject-matter of the contract. 
 When the subject-matter of a lease is destroyed, the estate of both the 
 lessor and lessee ends, and the relation cannot thereafter survive. It 
 makes no difference how or by whom the destruction was accomplished, 
 the result is the same. To say that the relation of landlord and tenant 
 could continue after the destruction of the subject-matter is the same 
 as to say that something could spring from and be maintained by 
 nothing.^ 
 
 Furthermore, misconduct on the part of the tenant may cause him 
 to lose his right to claim the benefit of the relation. By disclaimer 
 and repudiation of the tenancy, the tenant forfeits his rights under a 
 lease for years or at will. Express provisions in a lease may also give 
 a landlord the right to declare the termination of an estate upon the 
 tenant's failure to perform certain covenants or agreements. Such a 
 power in the lessor is known as a right to forfeit for breach of condi- 
 tion. Non-payment of rent is not of itself a ground for forfeiture at 
 
 ^Utah Optical Co. v. Keith, 18 
 Utah 464, 56 Pac. 155; Kerr v. Mer- 
 chants' Exch. Co., 3 Edw. Ch. (N. 
 Y.) 315; Graves v. Berdau, 26 N. Y. 
 
 498; Winton v. Cornish, 5 Ohio 477; 
 Shawmut &c. Bank v. City of Bos- 
 ton, 118 Mass. 125. See also, § 184. 
 
 550 
 
 I
 
 551 DISCLAIMER BY TENANT. [§ 474a 
 
 common law, but statutes giving a landlord the right to forfeit a lease 
 on this ground on compliance with certain requisites are common 
 throughout the United States. The general doctrine regarding the 
 power of contracting parties to rescind their contract and relieve 
 themselves of further liability by mutual consent applies to contracts 
 of lease, and the only limitation upon such action is that the mode of 
 surrendering the leasehold estate shall comply with the requirements 
 of the statute of frauds. 
 
 The phrase "express stipulation terminating a lease" has been de- 
 fined to include a termination occurring by lapse of time and cases 
 where forfeiture was expressly declared to follow from a breach of 
 condition, but not to include cases where the effect of a breach of con- 
 dition was left to inference. That the lease must expire "hj reason of 
 some express stipulation thereof" was the language of the statute 
 under construction, not by inference, not by operation of law, but by 
 express stipulation of the parties that the lease shall expire or become 
 void on the fulfilment of the condition. If a lease be given on condi- 
 tion that the premises should not be underlet, without stating what 
 effect a breach of the condition would have, it is only by inference that 
 the conclusion is reached that the parties intended that the lease should 
 terminate upon the fulfilment of the condition, because the common 
 law would so regard it, after proper steps had been taken to terminate 
 the lease. The lease contains no express provision for its termination 
 otherwise than by lapse of time, and therefore a Justice of the peace 
 would have no Jurisdiction to entertain such a question of forfeiture 
 in a summary proceeding to regain the possession of land.^ 
 
 I. Disclaimer hi/ Tenank 
 
 §474a. Effect of repudiation of tenancy. — The rule of the com- 
 mon law is, that whenever a tenant undertakes to disavow his relation- 
 ship by a hostile claim of ownership in himself, this repudiation of the 
 loyalty of his obligations will operate as a forfeiture of the lease, at 
 the election of the landlord, who may proceed to consider the tenant 
 as a stranger and trespasser and eject him accordingly.^ "Any act of 
 
 ^Lang V. Young, 34 Conn. 526, v. Burdick 83 111. 473; Fusselman 
 
 ^Alabama: Tillotson v. Doe, 5 v. Worthington, 14 111. 135; Wall v. 
 
 Ala. 407; Wells v. Sheerer, 78 Ala. Goodenough, 16 111. 415. Indiana: 
 
 142; Dahm v. Barlow, 93 Ala. 120, 9 Tobin v. Young, 124 Ind. 507, 24 N. 
 
 So. 598. California: Conner v. E. 121. Kansas: Douglas v. Ander- 
 
 Jones, 28 Cal. 59; Van Winkle v. son, 32 Kan. 350, 4 Pac. 257; Good- 
 
 Hinckle, 21 Cal, 342. Illinois: Doty man v. Malcolm, 5 Kan. App. 285,
 
 47-ia] 
 
 TERMINATIOX OF TENANCY. 
 
 552 
 
 the lessee," says Lord Bacon, '^by which he disaffirms or impugns the 
 title of his lessor, occasions a forfeiture of the lease. For to every 
 lease the law tacitly annexeth a condition that if the lessee do any- 
 thing that may impair the interest of his lessor, the lease shall be 
 void, and the lessor may reenter. Indeed, every such act necessarily 
 determines the relation of landlord and tenant ; since to claim under 
 another and at the same time to controvert his title, to hold under a 
 lease and at the same time to destroy the interest out of which the 
 lease ariseth, would be the most palpable inconsistency. A lessee may 
 thus incur a forfeiture of his estate by act in pais or by matter of 
 record. . . . "* By a lease the use of the property demised is con- 
 ferred, and if the tenant exercises an act of ownership, he is no longer 
 protected by his tenancy.^ 
 
 When a tenant disclaims to hold under his lease, he becomes a tres- 
 passer, and his possession is as adverse, and as. open to the action of his 
 landlord as a possession acquired originally by wrong. The act is con- 
 clusive on the tenant. He cannot revoke his disclaimer and adverse 
 claim, so as to protect himself during the unexpired term of the lease. 
 He is a trespasser on him who has the legal title. The relation of 
 landlord and tenant is dissolved, and each party is to stand upon his 
 right.® In order to have this effect, the disloyal acts of the tenant 
 
 4S Pac. 439. Kentucky: Farrow v. 
 Edmundson, 4 B. Mon. 605, 41 Am. 
 Dec. 250; Meraman v. Caldwell, 8 
 B. Mon. 32, 46 Am. Dec. 537. Louis- 
 iana: Thayer v. Waples, 26 La. Ann. 
 502. Maine: Campbell v. Procter, 
 6 Me, 12; Currier v. Earl, 13 Me. 
 216. Michigan: Fuller v. Sweet. 30 
 Mich. 237, 18 Am. R. 122; Morse v. 
 Byam, 55 Mich. 594, 22 S. W. 54. 
 Missouri: Stephens v. Brown, 56 
 Mo. 23. New Jersey: Van Blarcom 
 V. Kip, 26 N. J. L. 351. New York: 
 Jackson v. Wheeler, 6 Johns. 272; 
 Jackson v. Thomas, 16 Johns. 293; 
 Jackson v. Vincent, 4 Wend. 633. 
 North Carolina: Vincent v. Corbin, 
 85 N. Car. 108; Head v. Head, 7 
 Jones L. 620. Pennsylvania: New- 
 man v. Rutter, 8 Watts 51; Willard 
 v. Earley (Pa.), 14 Atl. 426. South 
 Carolina: Trustees v. Jennings, 40 
 S. Car. 168, 42 Am. St. 854; Smith 
 v. Asbell, 2 Strob. 141, 146; Trustees 
 
 &c. V. Meetzes 4 Rich. L. 50. Tennes- 
 see: Duke v. Harper, 6 Yerg. 230, 
 27 Am. Dec. 462; Ladd v. Riggle, 6 
 Heisk. 620. Vermont: Chamberlin 
 V. Donahue, 45 Vt. 50. Virginia: 
 Allen v. Paul, 24 Gratt. 332, Wis- 
 consin: Evans v. Enloe, 70 Wis. 
 345, 34 N. W. 918, 36 N. W. 22. 
 TTnited States: Willison v. Watkins, 
 3 Pet. 43; Peyton v. Stith, 5 Pet. 
 485; Walden v. Bodley, 14 Pet. 156; 
 Zeller v. Eckert, 4 How. 289. Eng- 
 land: Hovenden v. Annesley, 2 
 Sch. & L. 607; Grubb v. Grubb, 10 
 B. & C. 816; Davies v. Evans, 9 M. 
 & W. 48; Vivian v. Moat, L. R. 16 
 Ch. Div. 730. 
 
 * Bacon's Abr. tit. Leases and 
 Terms for Years, T. 2. 
 
 *Farrant v. Thompson, 5 B. & 
 Aid. 826; Agate v. Lowenbein, 57 
 N. Y. 604. 
 
 « Willison V. Watkins, 3 Pet. (U. 
 S.) 43. 
 
 i
 
 553 DISCLAIMER BY TENANT, [§§' 475, 476 
 
 must be open, continued and notorious, so as to preclude all doubt as 
 to the character of the holding or the want of knowledge on the part 
 of the owner.'' To allow a tenant to agree and profess to hold posses- 
 sion under the landlord, and at the same time hold covertly for him- 
 self, or for another's advantage, would be to enforce and uphold a 
 gross fraud, which the law will never do.^ 
 
 § 475. The most certain general test of the sufficiency of a dis- 
 claimer to create a forfeiture is, whether the tenants' holding is thereby 
 rendered so adverse as to put the statute of limitations in operation in 
 his favor, whereby his adverse possession would ripen into a fee by the 
 lapse of time. The stringent rules of the common law as to the for- 
 feiture of his term by a tenant, which were founded on the system of 
 feudal tenures, are inapplicable in this country, and have been greatly 
 modified by statutory provisions.® A tenant, when served with notice 
 to quit at the end of the current period, said : "It does not make any 
 difference to me. I am not here under him. I am here under another 
 man." This was held to be a repudiation of the landlord's title, and 
 an action of ejectment would lie against the tenant without waiting 
 for the expiration of the term, because, by claiming to hold under 
 another, the occupant lost his rights as a tenant.^" But the statement 
 of a tenant in possession under an agreement to purchase, that he was 
 not holding only as the mere tenant, was not such a renunciation of 
 the allegiance of an unqualified tenant to a technical landlord as 
 would work a forfeiture of the term." 
 
 Where the tenancy was at will, the acts of the tenant in allowing 
 an extent running against him to be levied on the land were held so 
 inconsistent with the nature of the holding that it was a repudiation 
 of the tenancy, and ended the will.^^ So, a tenant at will forfeits his 
 estate by selling his interest.^^ 
 
 § 476. Generally, attornment, or delivery of possession, to a 
 stranger or adverse claimant, or any act disavowing the title of the 
 landlord, and claiming a superior hostile title or ownership, amount- 
 
 'Zeller v. Eckert, 4 How. (U. S.) "Reeder v. Bell, 7 Bush (Ky.) 
 
 289. 255. 
 
 * Springs v. Schenck, 99 N. Car. "Campbell v. Procter, 6 Me. 12. 
 
 551, 6 Am. St. 552. "Danes Abr., Vol. 5, p. 15; Jack- 
 
 "Dahm v. Barlow, 93 Ala. 120, 9 son v. Babcock, 4 Johns. (N. Y.) 
 
 So. 598. 418. 
 
 "Wlllard V. Earley (Pa.), 14 Atl. 
 426.
 
 § 477] TERMIIs^ATIOX OF TENANCY. 554 
 
 ing to a repudiation of the tenancy, will constitute a ground for for- 
 feiture.^* Thus giving up possession to an adverse claimant forfeits 
 the tenant's term.^^ Attornment to a stranger without the consent or 
 approval of the landlord has the same effect.^^ The moment the tenant 
 sets up a hostile title in another, the lease becomes forfeited and the 
 landlord's right of entry complete. Where a tenant disclaims holding 
 under the landlord from whom he received the possession, and attorns 
 to a stranger, the attornment, being void in law, does not operate as a 
 disseisin of the landlord. He may, however, elect so to consider it and 
 bring his action for a disseisin. ^^ 
 
 There can be no adverse possession by a tenant during his term by 
 his mere intention so to hold, and without doing some act which would 
 amount to adverse possession. ^^ So, the lease of a tenant is not for- 
 feited by his mere claim to hold adversely to the landlord under whom 
 he entered.^^ 
 
 § 477. Conveyance by tenant. — By the old common law rule a 
 tenant might forfeit his estate by act in pais, as where he aliens the 
 estate in fee. Bacon thus states the matter : "But then the alienation 
 must be by such mode of conveyance as displaces or divests the estate 
 of the reversioner; for if it have not that effect, the law will not 
 adjudge it a forfeiture. It must be, therefore, by feoffment with 
 livery; for this only operates upon the possession, and effects a dis- 
 seisin. It cannot be by a grant, or any conveyance in the nature of a 
 grant, such as lease and release, bargain and sale ; conveyances of this 
 kind operating only on the grantor's interest and passing only what 
 he may lawfully depart with."-*' This is now changed in England by 
 a statute providing that a feoffment shall not have any tortious effect.-^ 
 But this only serves to emphasize the fact that a conveyance under 
 the statute of uses never could have the effect of a forfeiture, because 
 it passed no greater interest than the tenant could lawfully convey, 
 
 "Dahm v. Barlow, 93 Ala. 120, 9 L. 586; Doe v. Flynn, 1 C. M. & R. 
 So. 598. 137. 
 
 " Doe V. Flynn, 1 C. M. & R. 137 
 Kyle V. Stocks, 31 U. C. Q. B. 47. 
 '"Fortier v. Ballance, 10 111. 41 
 
 Woodward v. Brown, 13 Pet. (U. S.) lard, 48 Cal. 614. 
 
 1; Blue V. Sayre, 2 Dana (Ky.) 213 
 
 "Blue V, Sayre, 2 Dana (Ky.) 
 
 213; McCartney v. Auer, 50 Mo. 395. 
 
 ** Abbey Homestead Asso. v. Wil- 
 
 " Montgomery v. Craig, 3 Dana 
 
 Elms V. Randall, 4 Dana (Ky.) (Ky.) 101. 
 
 519; Steinhauser v. Kuhn, 50 Mich. ""Bacon's Abr. tit. Leases and 
 
 367, 15 N. W. 513; Lyon v. La Mas- Terms for Years, T. 2; McMichael 
 
 ter, 103 Mo. 612, 15 S. W. 767; Doe v. Craig, 105 Ala. 382, 16 So. 883. 
 
 V. Pittman, 2 N. & M. 673, 28 E. C. " 8 and 9 Vict., ch. 106, § 4.
 
 555 DISCLAIMER BY TENANT. [§ 478 
 
 and this would not affect the rights and interests of the landlord.^^ 
 When a tenant conveys a greater interest than he has in premises, a- 
 feoffment with livery of seisin which would work a forfeiture of his 
 estate will not be presumed ; it is equally probable that the more com- 
 mon species of assurance of lease and release or bargain and sale was 
 adopted, which, though in terms purporting to convey a fee, in reality 
 transfers no more or greater estate than the grantor had.^^ 
 
 In the United States, as well as in England, the rule as to forfeiture 
 by conveyance has been modified by statute in some jurisdictions. 
 Such acts in effect provide that no conveyance shall forfeit the ten- 
 ant's rights. Examples of this kind of legislation are to be found in 
 Alabama^* and in New York.^^ The supreme court of the former 
 state thus declares the law : "The true doctrine is, that nothing done 
 or suffered by a tenant for life can operate a forfeiture of his estate 
 to the tenant in remainder, but that his estate may be divested and 
 passed as any other, either through muniments of title executed by 
 him or through a possession adverse to him for the statutory period 
 and the operation of law thereon."^^ 
 
 § 478. By matter of record. — A lessee may incur a forfeiture under 
 the ancient common law "where he sues out a writ or resorts to a 
 remedy which claims or supposes a right to the freehold; or where, 
 in an action by his lessor grounded on the lease, he resists the demand 
 under the grant of a higher interest in the land ; or where he acknowl- 
 edges the fee to be in a stranger ; for, having thus solemnly protested 
 against the right of his lessor, he is estopped by the record from claim- 
 ing an interest under him."^'' "If he (the tenant) affirms the rever- 
 sion to be in a stranger by accepting his fine, attorning as his tenant, 
 collusive pleading, and the like, such behavior amounts to a forfeiture 
 of his particular estate."-* So, where a tenant at will accepted a deed 
 in fee to the premises from a third person, put such deed on record, 
 claimed by his plea to be tenant of the freehold, and offered the deed 
 
 - Emerick v. Tavener, 9 Gratt. 382, 388, 16 So. 883, per McClelland, 
 
 (Va.) 220; Jackson v. Mancius, 2 J., citing Woodstock Iron Co. v. 
 
 Wend. (N. Y.) 357; Grout v. Town- Fullenwider, 87 Ala. 586, 6 So. 197, 
 
 send, 2 Hill (N. Y.) 554. and Gindrat v. Western &c., 96 Ala. 
 
 =' Jackson v. Mancius, 2 Wend. 162, 11 So. 372. 
 
 (N. Y.) 357. "Bacon's Abr. tit. Leases and 
 
 '*Civ. Code 1896, § 1038. Terms for Years, T. 2. 
 
 ^' Grout v. Townsend, 2 Hill (N. =^ Coke Litt. 253, quoted in Jack- 
 
 Y.) 554, citing 1 R. S. 738, §§ 143, son v. Vincent, 4 Wend. (N. Y.) 
 
 145. 633. 
 
 ^'McMichael v. Craig, 105 Ala.
 
 I' 479] TEEillXATIOX OF TEXAXCY. 556 
 
 at the trial as evidence of title, this was held to work a forfeiture of 
 the estate at will.^^ In one case it was claimed that a life estate was 
 forfeited by acceptance of a deed from a stranger, under the common- 
 law rule that if a tenant for life or for years admitted of record that 
 the fee was in a stranger, he forfeited his estate. To this argument 
 the court replied : "True, it may be said that the acceptance of a deed 
 and putting it on record, under our law, is an act equally conclusive 
 as an admission in a court of record. But as the reasons of the law do 
 not exist here, no case can be said to be within the reason of it, and the 
 only question must be whether it is within the letter. In this case it 
 was not, and there was no f orf eiture."^" 
 
 In the entire discussion for forfeiture by adverse claim, it must be 
 remembered that the forfeiture only takes place at the election of the 
 landlord, for it is a well-settled principle that a tenant cannot by 
 buying in a title adverse to his landlord's relieve himself of the obli- 
 gations of his tenancy and place himself in all respects in the same 
 condition as a disseisor. The only effect is that if he does so and re- 
 pudiates the tenancy, the landlord has his election to treat the former 
 tenant as a trespasser and to dispossess him,^^ 
 
 § 479. By deed recorded. — It has been held that a deed in fee by a 
 tenant for life or for years, executed and recorded, is a repudiation of 
 the tenancy and forfeits the term. In an early case in Massachusetts 
 it was said : "Our deed recorded is declared by statute to be sufficient 
 to pass the land and estate, without any other act or ceremony in the 
 law ; this must mean the estate expressed in the deed when the grantor 
 has the capacity to convey, that is, has seisin; and the common law 
 says he has the right to convey when he is actually seized, though by 
 right or by wrong, claiming a fee; and when tenant for life is actu- 
 ally seized and conveyed in fee, it must be sufficient evidence he 
 claims in fee so that he can thus convey a larger estate than he has, 
 and so divert the remainders and reversions to the injury of their 
 owners. . . . "^- Such is the law of South Carolina^^ ^Iso. A court 
 reaching the opposite conclusion supported its decision by pointing 
 out that "even under the ancient faw a forfeiture did not follow a con- 
 veyance by deed or by any other mode of divestiture except a technical 
 
 =« Bennock v. Whipple, 12 Me. 346. ^ Trustees v. Jennings, 40 S. Car. 
 
 ^oRosseel v. Jarvis, 15 Wis. 571. 168, 18 S. E. 257, 891, 42 Am. St. 
 
 "Morse v. Byam, 55 Mich. 594, 22 854; Trustees &c. v. Meetze, 4 Rich. 
 
 N. W. 54. L. (S. Car.) 50. 
 
 ^- Commonwealth v. Welcome, 5 
 Dane's Abr. 13.
 
 557 DISCLAIMER BY TEXAXT. [§ 480 
 
 feoffment." The court went on to say: "Conveyance by feoffment is 
 unknown to our laws, and this doctrine is uj)on general principles 
 opposed to that public policy evidenced by all our statutes obtaining 
 in the premises which favors the transfer of all estates in land and 
 denounces entailments and forfeitures."^* Another argument against 
 the South Carolina cases is that they hold the conveyance causing the 
 forfeiture starts the statute of limitations to running against the 
 rights of the landlord. But it seems well settled that, even if the ten- 
 ant forfeits his estate, he does so only at the option of the landlord. 
 If the landlord desires, he may overlook the tortious act of his tenant 
 and assert his rights at the end of the term for years or of the life 
 interest.^° It is well-settled law that an attornment by a tenant does 
 not, of itself, operate to destroy the possession of the landlord.^^ 
 
 § 480. Payment of rent as an act of disclaimer. — A disclaimer, as 
 the word imports, must be a renunciation by the party of his character 
 of tenant, either by setting up a title in another, or by claiming title 
 in himself. For a tenant to pay rent to the general landlord and to 
 refuse to pay it to his immediate lessor would not cause a forfeiture 
 where what passed between the parties amounted to nothing more than 
 a mere difference of opinion with reference to the agreement.^^ The 
 mere payment by the tenant to a third person of the rent reserved by 
 his lease does not amount to a disclaimer of the title of the landlord, 
 so as to operate as a forfeiture of the lease. If the tenant pay his rent 
 to a person not entitled to receive it, he pays it in his own wrong, and 
 may afterwards by distress or action be compelled to pay it over again 
 to his landlord.^^ Thus a refusal to pay rent to a devisee under a 
 contested will, accompanied with a declaration that the tenant was 
 ready to pay the rent to any person who was entitled to receive it, is 
 not a disavowal sufficient to dispense with the necessity of a regular 
 notice to quit.^^ 
 
 An estate for a fixed number of years, created by deed, will not be 
 forfeited by a simple refusal to pay rent, or any mere words, where 
 there is no unmistakable hostilitv to the landlord's title with full 
 
 I 
 
 ='*McMichael v. Craig, 105 Ala 
 382, 16 So. 883. 
 
 *= Moore v. Luce, 29 Pa. St. 260 
 Jackson v. Mancius, 2 Wend. (N 
 Y.) 357. 
 
 ^Doe v. Reynolds, 27 Ala. 364 
 Porter v. Hammond, 3 Me. 188; Wil 
 
 Jackson v. Harsen, 7 Cow. (N. Y.) 
 323; Jackson v. Harper, 5 Wend. 
 (N. Y.) 246.' 
 
 ^' Doe V. Cooper, 1 M. & G. 135, 39 
 E. C. L. 683. 
 
 ^^Doe V. Parker, Gow. 180. 
 
 '" Doe V. Pasquali, Peake N. P. 
 
 lison V. Watkins, 3 Pet. (U. S.) 43; (3d ed.) 259.
 
 § 481] TERMINATION OF TENANCY. 558 
 
 notice from the tenant of his adverse claim, when no condition or 
 covenant of forfeiture is contained in the deed of lease.*" However, 
 an absolute denial by a tenant of his liability for rent is evidence of a 
 disavowal of his landlord's title. Such evidence may be submitted to 
 the jury, and the jury may find there was such a disclaimer as would 
 work a forfeiture of the tenant's term.*^ After forfeiting a term by 
 denying his liability for rent, a tenant cannot revive the tenancy by 
 offering to pay the rent and to acknowledge the tenancy.*^ 
 
 § 481. Mere words can never work a forfeiture of an estate for 
 life or for years. This precise question was decided by the court of 
 Queen's Bench in England.*^ The defendant was in possession under 
 an unexpired term for ninety-nine years at an annual rent and deter- 
 minable on lives. On an application for rent by the agent of the 
 plaintiff, who was entitled to the reversion, the defendant refused to 
 pay it, and asserted that the fee was in himself. The judge at the 
 assizes directed the jury to find for the plaintiff if they were of 
 opinion that the words used by the defendant were a serious claim of 
 the fee. Verdict for the plaintiff. The case was very learnedly argued, 
 and by the unanimous opinion of the court it was held that the plain- 
 tiff was not entitled to recover. Lord Denman said he felt the danger 
 of allowing an interest in land to be put an end to by mere words. 
 Patterson, J., said no case had been cited where a lease for a definite 
 term had been forfeited by mere words. They distinguished the case 
 from tenancies at will and from year to year, in which, they said, a 
 denial of tenancy was not a forfeiture, but rather a waiver of notice to 
 quit. The doctrine of this case has received judicial approval in courts 
 of the United States.** To commence an adverse holding, the tenant 
 must do something equivalent to a surrender of possession to the land- 
 lord and bring home to him knowledge of the adverse claim.*^ 
 
 II. Forfeiture for BreacJi of Condition. 
 
 § 482. Forfeitures are also incurred by the breach of express or 
 conventional conditions; for the lessor having the jus disponendi may 
 
 ^'Gale v. Oil Run &c. Co., 6 W. " De Lancey v. Ganong, 9 N. Y. 9; 
 
 Va. 200. Gale v. Oil Run &c. Co., 6 W. Va. 
 
 "Doe v. Cooper, 1 M. & G. 135, 39 200; Jackson v. Kisselbrack, 10 
 
 E. C. L. 683. Johns. (N. Y.) 336. 
 
 *^ Conner v. Jones, 28 Cal. 59. "Whiting v. Edmunds, 94 N. Y. 
 
 «Doe v. Wells, 10 A. & E. 427, 37 309. 
 E. C. L. 237. To same effect see 
 Whiting V. Edmunds, 94 N. Y. 309. 
 
 II
 
 559 rOKFEITUKE FOR BREACH OF CONDITIONS. [§' 482 
 
 annex whatever conditions he pleases to his grant, provided they be 
 not illegal, nor repugnant to the grant itself, and upon the breach of 
 those conditions may avoid the lease. Conditions of this sort are gen- 
 erally inserted with a view to secure the payment of the rent, to pre- 
 vent the commission of waste, or to restrain the alienation of the 
 estate without license from the lessor.*® If a lease explicitly pro- 
 vides that the landlord my treat it as void upon breach of condition 
 by the tenant, his election to enforce the condition dissolves the rela-" 
 tion of landlord and tenant between the parties and determines the 
 tenancy.*'' After the owner, by reason of the lessee's default, and in 
 the assertion of his rights as landlord, has secured an actual and 
 peaceable repossession of the premises, the lease becomes absolutely 
 forfeited, and a mortgage of the leasehold estate, executed by the 
 lessee, falls with it.*® 
 
 A condition has been defined generally as "a qualification or re- 
 striction annexed to a conveyance of lands whereby it is provided that, 
 in case a particular event does or does not happen, or in case the 
 grantor or grantee does or omits to do a particular act, an estate shall 
 commence, be enlarged, or be defeated."*^ The distinguishing feature 
 of a condition, as compared to a conditional limitation, is that a breach 
 of a condition can only be taken advantage of by entry. A breach in 
 the condition of a deed, which is not a limitation, but gives a mere 
 right of reentry, does not avoid the estate. The estate is terminated 
 solely by the reentry of the lessor.^" A provision in a lease that the 
 lessor may terminate the lease at the end of any year by giving sixty 
 days' previous notice "in case he sho-uld sell or desire to rebuild," is 
 not a condition, but a limitation, and the term expires by force of a 
 sale and notice, without any further act on the part of the lessor, such 
 as entry. ^^ So, where a lease contained not only the usual covenant of 
 reentry for non-payment of rent, but also an express covenant that in 
 case the rent reserved should be in arrear and unpaid for the space of 
 six months, the lease should be void, it was held that the legal effect 
 of this covenant was to divest the title of the lessee upon the happen- 
 ing of the contingency named. ^- 
 
 " Bacon's Abr. tit. Leases and ''"Co. Litt. 214b; Comyn's Land 
 
 Terms for Years, T. 2. & Ten. 104; Spear v. Fuller, 8 N. H. 
 
 "Miller v. Havens, 51 Mich. 482, 174; Johnson v. Gurley, 52 Tex. 
 
 16 N. W. 865; De Lancey V. Ganong, 222; Robey v. Prout, 7 I). C. 81; 
 
 9 N. Y. 9. Den v. McKnight, 11 N. J. L. 38B. 
 
 *« Abrahams v. Tappe, 60 Md. 317. "Miller v, Levi, 44 N. Y. 489. 
 
 *' Greenl. Cruise, Dig. tit. 13, ch. " Cooke- v. Brice> 20 Md, 397. 
 1, § 1, quoted in Bouvier's Law 
 Diet., Rawle's Rev.
 
 § 483] TERMINATION OF TENANCY. 560 
 
 The right to forfeit vested estates cannot, however, arise by reason 
 of the existence or non-existence of a state of facts not clearly defined. 
 A condition "to use all economy in an enterprise" is too uncertain to 
 be recognized as a ground on which a forfeiture might rest.^' 
 
 § 483. Necessity for re-entry. — In a case arising on the construc- 
 tion of a gas lease there was a covenant to commence operations within 
 nine months or to pay a fixed sum per month till work was com- 
 menced. A failure to comply with either one or the other of these 
 conditions was to work an absolute forfeiture of the lease. There was 
 no covenant for reentry. Upon failure to commence operations and 
 to pay the money in lieu thereof the lessor leased to« another person. 
 It was held that the first lease was thus avoided and the second lease 
 was good against it. The execution af the second lease was a sufficient 
 declaration of forfeiture without demand and reentry. The question 
 involved was whether the common-law method of enforcing a for- 
 feiture by demand and reentry was applicable to a lease which sim- 
 ply provided for forfeiture for breach of its covenants, but contained 
 no clause of reentry.^* After stating the old law to be that a breach 
 of condition terminated a lease without reentry, the court continues: 
 "Under the law as it had stood, so dead was the lease upon the breach 
 of the condition that the landlord could not recognize it as existing 
 or revive it but by a new lease, but it was dead as to both him and 
 his tenant; but under the modification of the rule wrought by the 
 later decision the lease continued good until the landlord avoided it, 
 but so far as the tenant's rights were concerned it was void, and he 
 could not set it up against the landlord. . . . Thus no reentry 
 
 "Benavides v. Hunt, 79 Tex. 383, necessary to avoid it; but by anal- 
 
 15 S. W. 396. ogy . . . the grantor should 
 
 "Guffy v. Hukill, 34 W. Va. 49, have given notice of his intention 
 11 S. E. 754; Alleghany Oil Co. v. to terminate it." In the same case 
 Bradford Oil Co., 21 Hun (N. Y.) Park, J., adds: "It is not necessary 
 26, affirmed in 86 N. Y. 638. In Rob- to decide whether the word void 
 arts v. Davey, 4 B. & Ad. 664, 670, means voidable by entry or voida- 
 Littledale, J., says: "If it had been ble by any other act showing the 
 a freehold lease of land subject to election of the grantor. 
 a condition that it should be void Re-entry by lessor is not neces- 
 on non-performance of covenants, it sary when he is already in posses- 
 would have been necessary for the sion. Island Coal Co. v. Combs, 152 
 lessor to avoid it by entry; or if Ind. 379, 53 N. B. 452; Maxwell v. 
 that were impossible, by claim. Todd, 112 N. Car. 677, 16 S. E. 926. 
 This instrument is a mere license " 2 Minor, Inst. 229, citing 2 Bl. 
 to dig, and did not pass the land. Comm. 155; 2 Thorn. Co. Litt. 3, 4, 
 An actual entry therefore was un- 87, 88, 95-97. 
 
 d
 
 561 POEFEITUEE FOR BREACH OF CONDITIONS. [g 484 
 
 is necessary in case of a lease for years which contains a clause for 
 forfeiture for breach of covenant but no clause of reentry."^'' Another 
 ground upon which the decision could be rested was that reentry 
 was impossible because the lessor was already in possession.^^ 
 
 However, if a condition, and not a limitation is created, the ordi- 
 nary reentry clause raises a necessity for some positive act of the 
 landlord to determine the tenant's estate.^^ An entry by a lessor for 
 lessee's breach of covenants pursuant to a clause for reentry in the 
 lease is not wrongful, and if the lessee is guilty of the breaches al- 
 leged as the basis for the lessor's action, he cannot claim damages for 
 the entry.^^ The entry of a landlord in order to revest possession must 
 not be merely casual, but should be for the purpose of taking posses- 
 sion, and the nature of the entry is to be shown by the acts and dec- 
 larations of the parties,*'*' A waiver of any requirement for reentry 
 to forfeit a lease may be confined to the landlord's right to bring a 
 statutory process to recover possession. Even then the lessor to be en- 
 titled to such process must do some unequivocal act that would signify 
 to the lessee his election to terminate the lease.*'^ Where none of 
 the usual steps to declare a forfeiture have been taken, the lease will 
 not be forfeited merely because grounds for forfeiture existed and 
 also an intention to declare a forfeiture. The law does not favor 
 forfeiture and will not imply them from slight circumstances, but 
 they must be formally and clearly declared.®^ 
 
 § 484. How affected by statutes. — By an early English statute,®^ 
 which was reenacted in New York,"* it was provided that when a 
 right of reentry by the landlord exists, the service of a declaration in 
 ejectment stands in the place and stead of a demand and reentry. To 
 authorize the action evidence was required that no sufficient distress 
 could be found upon the premises. Subsequently distress for rent 
 was abolished in New York, and it was provided that if, after a no- 
 tice of fifteen days, the tenant did not pay the rent, the landlord might 
 reenter. And it was held that this notice of fifteen days stood in the 
 
 '"Guffy V. Hukill, 34 W. Va. 49, ^"Wright v. Everett, 87 Iowa 697, 
 
 11 S. E. 754, per Brannon, J. 55 N. W. 4. 
 
 "Co. Litt. 316b, 218b; Sheaffer v. «• Holly v. Brown, 14 Conn. 255. 
 
 Sheaffer, 37 Pa. St. 525; Alleghany "^ Read v. Tuttle, 35 Conn. 25. 
 
 Oil Co. V. Bradford Oil Co., 21 Hun "Cheney v. Bonnell, 58 111. 268. 
 
 (N. Y) 26, affirmed in 86 N. Y. 638. «' 4 Geo. II, ch. 2 to 4, enacted A. 
 
 ■''Bowman v. Foot, 29 Conn. 331. D. 1731. 
 
 «* Samson v. Rose, 65 N. Y. 411. 
 
 Jones L. & T.— 36
 
 §■ 485] TERMIXATIOX OF TEXAXCT. 563 
 
 place of the evidence of want of goods to distrain upon. The English 
 statute has also been reenacted in Maryland/^ and so in that State the 
 service of the declaration in an ejectment suit is a substitute for a de- 
 mand for rent in every case. The length of the term cannot affect the 
 operation of the statute. A perpetual lease creates the relation of les- 
 sor and lessee or landlord and tenant, and the statute in terms applies 
 to every such case. It dispenses with a previous demand of rent and 
 reentry and substitutes therefor service of a copy of the declaration 
 in ejectment in all cases where the landlord or lessor has right by law 
 to reenter.^^ Express stipulations in a lease regarding demand have 
 been held not to make a demand necessary. In a case arising in Eng- 
 land/^ a lease provided for reentry in case of the rent being in arrear 
 for a certain time and 'Toeing lawfully demanded/' and the court, 
 contrary to the opinion of Lord Ellenborough, held that the insertion 
 of these words in the lease did not affect the operation of the statute 
 and. that a demand was unnecessary. That case settled the law in Eng- 
 land, and there is no substantial difference between the words "being 
 lawfully demanded" and "being first lawfully demanded.'' In the 
 construction of such an instrument the latter are included in the legal 
 force and operation of the former.*'® Moreover, in England the statute 
 did not extend to cases where there was a sufficient distress upon 
 the premises, and consequently in such cases the lessor must proceed 
 at common law to make an entry .^^ It has been expressly ruled that 
 under the statute of 4 Geo. 2, there must be proof that on some day 
 or period between the time at which the rent fell due and the day of 
 the demise there was not a sufficient distress upon the premises. '''* 
 This same construction has been applied to the statute as reenacted in 
 Maryland."^ 
 
 § 485. An option to claim an estate for breach of condition is 
 sufficiently expressed by entry or acts equivalent thereto. If the 
 
 lease does not require notice, the act of taking possession is an ex- 
 ercise of the option and is all the notice required. It would be un- 
 reasonable to say a written notice was required when it was not called 
 for by the instrument itself.^^ As has already appeared, a title does 
 
 «'Md. Acts 1872, ch. 346, § 2; =° Doe v. Lewis, 1 Burr. 614, 620; 
 
 Gen. Pub. Laws 1888, Art. 75, § 70, p. Doe v. Wandlass, 7 Term R. 113, 
 
 1129. 117. 
 
 °* Campbell v. Shipley, 41 Md. 81, '° Doe v. Fuchau, 15 East 286. 
 
 94. "Connor v. Bradley, 1 How. (U. 
 
 "Doe v. Alexander, 2 M. & S. 525. S.) 211. 
 
 ** Campbell v. Shipley, 41 Md. 81, '-^Metropolitan Land Co. v. Man- 
 
 94. ning, 98 Mo. App. 248, 71 S. W. 696;i
 
 563 rOEFEITUEE FOR BREACH OF COXDITIOXS. [§ 486 
 
 not revest immediatel}^ upon a breach of condition, for the lessor may 
 waive the forfeiture, in which case the estate continues. So the 
 landlord cannot recover possession of the premises until he has mani- 
 fested his determination to enforce the forfeiture by entering or 
 making a claim for condition broken." And in Xebraska it has been 
 held that the lessee must be notified of the lessor's intention to declare 
 a forfeiture. It was there ruled that in order to avail himself of the 
 option of declaring a forfeiture it was the duty of the lessor to give 
 the lessee reasonable notice that he would terminate the lease unless 
 the rent was paid or other conditions complied with. If the lessor re- 
 took possession without notice and without the lessee's knowledge, 
 he would be liable for such damages as might be sustained by the lessee 
 by reason of his wrongful act.''* 
 
 § 486. That a condition in a lease calling for a forfeiture is to be 
 strictly construed against the lessor is a universal rule recognized by all 
 the authorities. It has been declared that a provision for the forfeiture 
 of a lease will always be construed so as to prevent, rather than aid, 
 the forfeiture.''^ Forfeiture is a harsh remedy, not favored by the 
 law, even though the only loss upon the tenant is being deprived of the 
 balance of the term.'** Where the subject of the forfeiture is valuable 
 improvements owned by the tenant, forfeiture should be even less 
 favored, and unless compelled by an unbending rule of law, a court 
 of equity would not enforce the forfeiture of property of considerable 
 value belonging to the tenant.''^ So in a case where a lease of a farm 
 on the shares provided that if it was not worked in a proper manner 
 the lessor might enter and take charge of the premises and property 
 thereby rented, it was held that this allowed the lessor on breach to 
 
 Clarke v. Brookfield, 81 Mo. 503; '= Knight v. Orchard, 92 Mo. App. 
 
 Messersmith v. Messersmith, 22 Mo. 466; Sauer v. Meyer, 87 Cal. 34, 25 
 
 369. Pac. 153; Hough v. Brown, 104 
 
 ''Sperry v. Sperry, 8 N. H. 477; Mich. 109, 62 N. W. 143; North & 
 
 Gray v. Blanchard, 8 Pick. (Mass.) South &c. Co. v. O'Hara, 73 111. App. 
 
 284, 289; Chalker v. Chalker, 1 691; Estabrook v. Hughes, 8 Neb. 
 
 Conn. 79; Co. Litt. 218a; Shep. 496, 1 N. W. 132; Miller v. Havens, 
 
 Touch. 150. 51 Mich. 482, 16 N. W. 865; De- 
 
 '* Cannon v. Wilbur, 30 Neb. 777, Lancey v. Ganong, 9 N. Y. 9; Pres- 
 
 47 N. W. 85. byterian Church v. Pickett, Wright 
 
 "Sauer v. Meyer, 87 Cal. 34, 25 (Ohio) 57; Kentucky &c. Co. v. 
 
 Pac. 153; Camp v. Scott, 47 Conn. Commonwealth, 13 Bush (Ky.) 435. 
 
 366, 375; Tate v. Crowson, 6 Ired. ''Estabrook v. Hughes, 8 Neb. 
 
 L. (N. Car.) 65; Parks v. Hays, 92 496, 1 N. W. 132. 
 Tenn. 161, 22 S. W. 3.
 
 TEEMINATION OF TENAXCY. 564 
 
 Session of the stock but not of the growing crops planted by 
 tenant.'''^ A landlord who allows his tenant to expend large sums 
 of money in valuable and lasting improvements, without objection 
 or inquiry as to the intent in regard to violation of covenants, is 
 estopped to assert a forfeiture of the lease because of such improve- 
 ments where no substantial damage results from the alteration. A 
 covenant in the nature of a restriction or limitation upon the use of 
 property leased will not be enlarged by construction, and any doubts 
 as to its meaning will be resolved in favor of the lessee.'^^ But in the 
 face of this general doctrine, a condition that a tenant will forfeit his 
 lease by ceasing to use the demised house as a dwelling has been con- 
 strued to require his continued residence there.*" In view of the 
 familiar attitude of courts toward forfeitures, this should be in- 
 terpreted to mean merely that the house should not be used as a store 
 or as a shop. It has for a very long time been the policy of the 
 law, and courts have felt it their duty in administering the law, as far 
 as possible, to limit the effect of a clause or provision in a lease or stat- 
 ute by which a forfeiture is created.®^ Yet when, by a reasonable con- 
 struction, it appears that the contracting parties agreed that a for- 
 feiture should take place upon the failure of one of the parties to com- 
 ply with a material part thereof, courts will decree a forfeiture*^ in 
 case the default or failure is satisfactorily established.*^ When, how- 
 ever, a forfeiture is an end in itself, not a means of enforcing some- 
 thing else, it cannot be relieved against, and is not to be regarded with 
 hostility. If a landlord bargains for a right to end the lease in case 
 of fire the stipulation is to be approached no more adversely than if he 
 had reserved a right to end it by sale, or by the payment of a certain 
 sum of money.** 
 
 § 487. The mere breach of a covenant by the tenant can give the 
 landlord no right of re-entry unless there be a stipulation in the lease 
 that such breach of covenant shall work a forfeiture or determination 
 of the tenant's interest. Xo ejectment can be maintained by the land- 
 
 "Koeleg V. Phelps, 80 Mich. 466, Mich. 482, 16 N. W. 865; DeLancey 
 
 45 N. W. 350. V. Ganong, 9 N. Y. 9. 
 
 " Hawes v. Favor, 161 111. 440, 43 "= Faylor v. Brice, 7 Ind. App. 551, 
 
 N. E. 1076. 34 N. E. 833. 
 
 «" Marsh v. Bristol, 65 Mich. 378, "' Wilmington &c. Co. v. Allen, 95 
 
 384, 32 N. W. 645. III. 288; Consolidated Coal Co. v. 
 
 «^Doe V. Stevens, 3 B. & Ad. 299; Schaefer, 31 111. App. 364. 
 
 Doe V. Hogg, 4 D. & R. 226; Doe v. '* Hunnewell v. Bangs, 161 Mass. 
 
 Godwin, 4 M. & S. 265; Doe v. Bond, 132, 36 N. E. 751. 
 5 B. & C. 855; Miller v. Havens, 51 
 
 I
 
 565 FORFEITURE FOR BREACH OF COXDITIOXS, [§ 487 
 
 lord for mere breach of covenant not coupled with a proviso that the 
 term shall end. His only remedy would be an action for breach of 
 covenant. ^^ Where there is no right of reentry reserved in a lease, and 
 no agreement that failure to perform covenants shall operate as a 
 forfeiture, mere breach of covenants, express or implied, does not 
 terminate the relation of landlord and tenant.®® And if there be doubt 
 as to the true construction of a clause in a lease, it should be held to 
 be a covenant and not a condition.^^ Where there was a stipulation in 
 a lease forbidding assignment without written consent on the part of 
 the lessor, but no express provision for forfeiture in case of breach 
 followed, it was held that the express terms of the lease would not be 
 extended by implication and an assignment would not forfeit the 
 lease. In other parts of the lease there were covenants for breach of 
 which there was an express provision for forfeiture.^® But a provision 
 that for breach of any of the covenants or agreements in a lease, the 
 lessor might declare the term ended and reenter, gives a mere covenant 
 the force of a condition. Of such a stipulation it was said : "This is 
 not a mere covenant not to assign, but it is a power of reentry for a 
 breach of covenant, and this . . . has the force of a condition. 
 It may be true that in the construction of deeds courts will incline to 
 interpret the language as a covenant rather than as a condition. But 
 the intention of the parties to the instrument, when clearly ascer- 
 tained, must control."®^ In the case of a condition broken the right of 
 reentry by the landlord, if the condition is of such a nature, would 
 ensue; but for a breach of covenant, where no right of reentry is re- 
 served for such breach, only an action for damages would follow.®'^ A 
 printed clause providing that the lease would be forfeited for breach 
 of any of the covenants would be a suificient basis for forfeiture be- 
 cause of non-payment of taxes, as provided for by another covenant 
 in the lease. It does not alter the result that there is a written pro- 
 vision for forfeiture which would not include the covenant in regard 
 to taxes.^^ Where the proviso in regard to reentry in case of breach of 
 
 *° Bauer v, Knoble, 51 Minn. 358, ( "Johnson v. Gurley, 52 Tex. 222. 
 
 53 N. W. 805; Vanatta V. Brewer, 32 ; ^ Burnes v. McCubbin, 3 Kan. 
 
 N. J. Eq. 268; Hubner v. Feige, 90 221; Den v. Post, 25 N. J. L. 285; 
 
 111. 208; Johnson v. Gurley, 52 Tex. Spear v. Fuller, 8 N. H. 174. 
 
 222; Ocean Grove &c. Ass'n v. San- ^'Kew v. Trainor, 150 111. 150, 37 
 
 ders, 68 N. J. L. 631, 54 Atl. 448; N. E. 223, per Craig. J. 
 
 Den v. Post, 25 N. J. L. 285. "'' People v. Gilbert, 64 111. App. 
 
 ''Norris v. Harris, 15 Cal. 226; 203; Philips v. Doe, 3 Ind. 132. 
 
 Pickard v. Kleis, 56 Mich. 604, 609, " Heiple v. Reinhart, 100 Iowa 
 
 23 N. W. 329; Presbyterian Church 525, 68 N. W. 871. 
 v. Pickett, Wright (Ohio) 59.
 
 § 488] TERMINATION OF TENANCY. 566 
 
 covenant in the lease had been erased from a lease, it was held that 
 what would have been conditions were left mere covenants, relieved 
 of any conditions whatever. Any other construction would do violence 
 to the expressed intention of the parties.^^ 
 
 § 488. A breach of an implied covenant in a lease such as by the 
 commission of waste does not in the absence of an express provision 
 to that effect give the landlord a right to terminate the lease.^^ More- 
 over, where express and implied covenants exist side by side in a lease, 
 a clause giving the lessor a right to enter and terminate the lease for. 
 a breach of the express covenants has been held not to confer a similar 
 right for breach of an implied covenant. The implied agreement must 
 be regarded as a naked covenant, and the right of reentry in case of 
 default must be held to apply only to breaches of the express 
 promises.^* In the absence of express covenants as to husbandry in a 
 farming lease, the clause providing for reentry was held not to apply 
 to the implied covenants of the lease.^^ 
 
 But the case seems to be different, if the tenancy is at will, for it 
 has been declared to be a well-settled rule that if a tenant at will com- 
 mits waste, it is a determination of the will and an act of trespass, 
 and that trespass quare clausum fregit will lie by the reversioner.*^" 
 An estate at will existing by the statutes of the State of Maine gives 
 to a tenant at will rights for a period, after a written notice to quit, 
 of equal validity with those acquired under a written lease for a like 
 period. Such rights, it has been held, would not be destroyed by the 
 commission of waste by the tenant, and the landlord would be left 
 for redress to his action on the case in the nature of waste. ^' 
 
 In leases of mineral lands, where the lessee agrees to pay to the 
 lessor a royalty or rent, which depends on the amount of coal or other 
 product mined, the lessee thereby, in the absence of any provision to 
 the contrary, impliedly obligates himself to begin the development 
 of the coal and the mining thereof within a reasonable time after the 
 execution of the lease. A failure upon the part of the lessee will be 
 held to operate as a forfeiture of his rights.^^ 
 
 "^'Hanaw v. Bailey, 83 Mich. 24, "= Daniels v. Pond, 21 Pick. 
 
 46 N. W. 1039; Langley, v. Ross, 55 (Mass.) 367; Phillips v. Covert, 7 
 
 Mich. 163, 20 N. W. 886. Johns. (N. Y.) 1; Suffern v. Town- 
 
 «' Bauer v. Knoble, 51 Minn. 358, send, 9 Johns. (N. Y.) 35. 
 
 53 N. W. 805. " Young v. Young, 36 Me. 133. 
 
 ** Hough V. Brown, 104 Mich. 109, '' Island Coal Co. v. COmbs, 152 
 
 62 N. W. 143. Ind. 379, 53 N. E. 452; Conrad v. 
 
 ^''Somers v. Loose, 127 Mich. 77, Morehead. 89 N. Car. 31; Maxwell 
 
 86 N. W. 386. V. Todd, 112 N. Car. 677, 16 S. E.
 
 567 FORFEITUEE FOR BKEACH OF CONDITIONS. [§ 489 
 
 § 489. Acts of sub-tenant.— A breach by a sub-tenant of the con- 
 ditions or covenants of the original lease will forfeit such lease.^* 
 Furthermore a severance of the occupation of demised premises, the 
 rent being paid to the original lessor by the respective sub-tenants, is 
 not a severance of the conditions of the lease, and a breach of the con- 
 ditions of the lease by one of the occupants works a forfeiture of the 
 whole lease.^°° But a notice by the lessor to one occupying under the 
 lessee, that the lessor will look to him for rent, made when no rent is 
 due and not upon the demised premises, does not terminate the lease 
 on the ground of non-payment of rent."^ 
 
 A statute imposing a forfeiture for illegal use by a tenant was 
 held not to make a lessee liable for the act of his sub-tenant. The 
 illegal use only made void the lease under which the occupant held. 
 It was not intended to vacate the title of the owner or lessor by reason 
 of the acts of the sub-tenant. Such a construction would operate 
 harshly. The effect of it would be to destroy the title of a lessor, how- 
 ever valuable the term, by the acts of his undertenant, of which his 
 lessor had no notice and over which for the time he had no control.^"^ 
 
 The tenant is liable to suffer a forfeiture, however, if he sub-lets 
 with knowledge that the undertenant intends to put the premises to 
 an illegal use.^°^ In the same jurisdiction where the preceding doc- 
 trine was adopted it was subsequently said that the claim that a for- 
 feiture must always be to the immediate landlord of him who used 
 the premises for his unlawful trade was a construction which was not 
 warranted by the language of the statute. If adopted it would enable 
 the lessee, by underletting, to deprive the landlord of the benefit of the 
 provisions of the statute.^^* A lessee could not avoid the effect of the 
 illegal user of his sub-tenant by ousting the tenant and thus putting 
 a stop to the illegal use.^''^ Nor would the original landlord lose his 
 right to insist upon a forfeiture by seeking to recover the penalty of 
 double rent allowed by the statute.^"® 
 
 926; Shenandoah Land &c. Co. v. (Mass.) 312; O'Connell v. M'Grath, 
 
 Hise, 92 Va. 238, 23 S. E. 303; Blue 14 Allen (Mass.) 289. 
 
 Stone Coal Co. v. Bell, 38 W. Va. ^"^ Shaw v. McCarty, 59 How. Pr. 
 
 297, 18 S. E. 493. (N. Y.) 487; People v. McCarty, 62 
 
 "'Wheeler v. Earle, 5 Cush. How. Pr. (N. Y.) 152. 
 
 (Mass.) 31, 51 Am. Dec. 41. '"'People v. Bennett, 14 Hun (N. 
 
 ""Clarke v. Cummlngs, 5 Barb. Y.) 63. 
 
 (N. Y.) 339. "sgtiaw v. McCarty, 59 How. Pr. 
 
 '"'Gage V. Smith, 14 Me. 466. (N. Y.) 487. 
 
 "='Healy v. Trant, 15 Gray '"^People v. Bennett, 14 Hun (N. 
 
 Y.) 58.
 
 §§ 490, 491] TEEMINATIOX OF TEXAXCY. 568 
 
 § 490. The general doctrine that equity will never lend its aid in 
 exacting a penalty applies generally to cases of forfeiture for breach 
 of condition, because a forfeiture is in the nature of a penalty. So the 
 rule has been declared to be that a court of equity will not enforce 
 a forfeiture, but will leave the party claiming it to his legal remedies, 
 such as an action at law to recover possession.^"'' On the other hand, 
 chancellors have no compunctions in interfering to prevent a for- 
 feiture, and a court of equity has extended its protection to a default- 
 ing party to prevent a forfeiture after a right to forfeit for breach of 
 condition has been waived.^**® A bill filed to remove a cloud on a title 
 caused by the claims of a lessee under a lease alleged to have been for- 
 feited, and asking that the court ascertain if such forfeiture is com- 
 plete, and, if so, remove the cloud, is not open to the objection that 
 equity will never enforce a penalty or forfeiture. The bill treated the 
 lease as a void incumbrance, under which the lessee, by his claims, 
 clouded the lessor's title. The court was not asked to declare a for- 
 feiture, but to ascertain whether or not a completed forfeiture existed, 
 and if so to remove the cloud. The bill did not ask the court to do the 
 thing, but to ascertain if it had been done, and if so, to declare its 
 effects upon the title of the lessor's property. ^"^ Neither does this 
 doctrine apply where a landlord has already entered and declared a 
 forfeiture and is seeking by injunction to prevent a trespass upon his 
 possession. The landlord is not seeking to have a court of equity de- 
 clare or enforce a forfeiture. That had already been done by making 
 entry and taking possession. He is only seeking now to prevent a re- 
 currence of trespasses made upon the possession he secured after for- 
 feiture, and he is entitled to an injunction on the ground that though 
 a trespasser is solvent, yet when his trespasses are harrassing and con- 
 tinuous, damages recovered in an action at law are not an adequate 
 remedy for them.^^" Equity will not relieve against a forfeiture 
 which is perfect in every respect at law to enjoin an action at law to 
 recover possession of the premises.^^^ 
 
 § 491. Under certain circumstances a court of equity may, with- 
 out violating any settled rules, relieve against a forfeiture.^^- For- 
 
 "^ Livingston v. Tompkins, 4 "' Pendill v. Union Mining Co., 64 
 John. Ch. (N. Y.) 415; Linden v. Mich. 172, 31 N. W. 100. 
 Hepburn, 3 Sandf. (N. Y.) 668; ""Metropolitan Land Co. v. Man- 
 Little Rock &c. Co. V. Shall, 59 Ark. ning, 98 Mo. App. 248, 71 S. W. 696. 
 405, 27 S. W. 562; Justice v. Lowe, "^ Palmer v. Ford, 70 111. 369. 
 26 Ohio St. 372. "=Lundin v. Schoeffel, 167 Mass, 
 
 ^°« Little Rock &c. Co. v. Shall, 59 465, 45 N. E. 933; Mactier v. Os- 
 
 Ark. 405, 27 S. W. 562. born, 146 Mass. 399, 15 N. E. 641;
 
 569 FORFEITURE FOR BREACH OF CONDITIONS. [§' 491 
 
 feitures which are incurred through inadvertance or mistake, without 
 any bad faith on the part of the lessee, will be relieved against on a 
 showing that no actual damage has been sustained by the lessor.^ ^^ 
 The result of the authorities, supported by sound principles, is that 
 "where there has been a breach of a covenant to pay rent, equity will 
 relieve against a forfeiture, although the breach is wilful on the part 
 of the lessee ; and where there has been a breach of a covenant to per- 
 form some collateral duty such as to repair or insure, which has been 
 caused by accident or mistake, equity will relieve if the lessor can, 
 by compensation or otherwise, be placed in the same condition as if 
 the breach had not occurred."^^* In all cases where a penalty or for- 
 feiture is designed to secure the payment of a certain sum of money, 
 a court of equity will grant relief upon payment of the money se- 
 cured, with interest, as in the case of forfeitures for the non-payment 
 of rent.^^^ The clause of reentry as applicable to the covenants for 
 the payments of rent or taxes, or any other sum certain, is in equity 
 treated as a security for the payment of money, and precise compen- 
 sation can be made for the breach of it and in such case the court will, 
 in the exercise of its equitable powers, relieve from a forfeiture on 
 such terms as may be just.^^*' If non-payment of taxes was a mere 
 omission and not an act of wilful bad faith, the lessee could obtain re- 
 lease from the forfeiture by an action in equity setting up the omis- 
 sion to pay and that all payments had been subsequently made.^^''' 
 But relief was refused where the failure to pay the taxes was inten- 
 tional and in bad faith.^^® Equity aids the vigilant and not such as 
 
 Sanborn v. Woodman, 5 Cush. v. Tupper, 29 Vt. 358; Sanders v. 
 
 (Mass.) 36; Atkins v. Chilson, 11 Pope, 12 Ves. 282 and note. 
 
 Mete. (Mass.) 112, 117; Giles v. "^Atkins v. Chilson, 11 Mete. 
 
 Austin, 62 N. Y. 486; Noyes v. An- (Mass.) 112; Johnston v. Hargrove, 
 
 derson, 124 N. Y. 175, 26 N. E. 316; 81 Va. 118; Little Rock &c. Co. v. 
 
 Justice v. Lowe, 26 Ohio St. 372; Shall, 59 Ark. 405; Baxter v. Lan- 
 
 Hagar v. Buck, 44 Vt. 285; Henry sing, 7 Paige (N. Y.) 350. 
 
 V. Tupper, 29 Vt. 358; Sunday Lake "« Garner v. Hannah, 6 Duer (N. 
 
 Min. Co. V. Wakefield, 72 Wis. 204, Y.) 262; Baldwin v. Van Vorst, 10 
 
 39 N. W. 136; Hill v. Barclay, 18 N. J. Eq. 577, 585; Wadman v. Cal- 
 
 Ves. 56, 58; Story Eq. Jur., §§ 1314- craft, 10 Ves. 67; Sanders v. Pope, 
 
 1323. 12 Ves. 282. 
 
 "^Lundin v. Schoeffel, 167 Mass. "^ Giles v. Austin, 62 N. Y. 486; 
 
 465, 45 N. E. 933. Noyes v. Anderson, 124 N. Y. 175, 
 
 '"Mactier v. Osborn, 146 Mass. 26 N. E. 316; Messersmith v. Mes- 
 
 399, 15 N. E. 641, quoted in Lundin sersmith, 22 Mo. 369. 
 
 V. Schoeffel, 167 Mass. 465, 45 N. E. "* Metropolitan Land Co. v. Man- 
 
 933; Livingston v. Tompkins, 4 ning, 98 Mo. App. 248, 71 S. W. 696. 
 Johns. Ch. (N. Y.) 415, 431; Henry
 
 § 492] TEKMIXATIOX OF TENANCY. 570 
 
 sleep upon their rights and requires that he who seeks equity, must 
 do equity; so it follows that a chancery court will not interfere when 
 the breach of condition has been culpable, long persisted in and detri- 
 mental. ^^^ Where other covenants have been broken besides the one 
 for rent for which a right of entry is reserved and no relief can be 
 given by equity for a breach of the others, a forfeiture for breach of 
 the condition concerning rent will not be relieved against as such re- 
 lief would be of no effect. ^^^ 
 
 § 492. Only in exceptional cases will equity relieve against a for- 
 feiture caused by a failure to repair or insure. But a default on the 
 part of a lessee to proceed promptly with the work of making im- 
 provements was a failure to pay out money for this purpose and was 
 unlike a failure to repair. The lessee's failure was merely an omission 
 to do promptly something which was only useful to the lessors by way 
 of security for the future payment of rent. It was not like a case 
 where the omission caused a present injury or increase of risk to the 
 lessors, as in the case of waste, non-repair, or non-insurance. It was 
 merely a failure to pay out money and was much like an omission to 
 pay taxes. In such a case a court of equity is not required to refuse 
 relief against a forfeiture, but may look into the circumstances, and 
 determine whether on the whole it is just and right that such relief 
 should be granted.^^^ In a case of forfeiture for failure to insure, the 
 lessee in good faith intended to have the policies renewed in the same 
 amounts and form. By accident or by mistake of the insurance . 
 brokers, they were renewed in a form which did not fairly meet the 
 requirements of the covenant. This was not wilful or voluntary on 
 the lessee's part. It was not an accidental forgetfulness to renew the 
 policies. The property had been fully insured all the time. It was 
 an occurrence not anticipated by the lessee, and not known to him 
 until after the lessor entered to enforce the forfeiture. No miscon- 
 duct or culpable fault can be attributed to the lessee. The lessors had 
 not in fact been injured by the accident and could have been put w 
 statu quo. So it was declared to be against equity and good conscience 
 that the demandant should insist upon a forfeiture of a valuable lease- 
 hold estate.^^^ The nature of the relief which equity will grant is 
 
 "» Bacon v. Park, 19 Utah 246, 57 ^ Lundin v. Schoeffel, 167 Mass. 
 
 Pac. 28. 465, 45 N. E. 933. 
 
 ^ Sunday Lake Mining Co. v. ^ Mactier v. Osborn, 146 Mass. 
 
 Wakefield, 72 Wis. 204, 39 N. W. 399, 15 N. E. 641. 
 136; Nokes v. Gibbon, 3 Drew. 681, 
 693; Bowser v. Colby, 1 Hare 109.
 
 571 FOEFEITUKE FOR BREACH OF COXDITIOXS. [§ 493 
 
 limited to a relief against the forfeiture. Thus a lease contained a 
 stipulation that the lessee might remove improvements provided he 
 paid rent and kept his agreements, but he failed to do so and the lessor 
 took possession of the improvements. It was held that while equity 
 might interfere for the purpose of preventing a forfeiture, it would 
 not do so for the purpose of allowing the lessee to sue for damages 
 for the acts of the lessor in regard to the improvements.^^^ 
 
 However the general rule is that equity will not relieve against for- 
 feiture from the breach of covenants where compensation cannot be 
 made.^^* Hence, equity will not in general, and in the absence of 
 special circumstances calling for interference, give relief in cases of 
 forfeiture growing out of breach of covenants for repairing, insuring 
 or doing an}^ specific act, because in such cases it is not known what 
 the measure of damages would be.^-^ 
 
 § 493. Emblements. — An entry for condition broken entitles the 
 landlord to crops growing at the time the entry is made. The lessees 
 would have no equitable claims to emblements, as the termination of 
 the estate resulted from their own act in making default. The whole 
 law of emblements is derived from a rule of public policy.^^*' But 
 when there has been no cause for forfeiture, mere abandonment of the 
 premises does not prevent the tenant from passing a good title by a 
 sale of growing crops.^-' Wliere by statute the institution of an action 
 of ejectment was substituted for damand for rent and entry by the 
 landlord, judgment in the action would relate back and the landlord 
 would be entitled to crops growing at the time the ejectment suit was 
 commenced.^ -^ 
 
 Where an assignment of a lease and the sale of a growing crop to a 
 prohibited person caused a breach of condition which forfeited the 
 lease, it was held that title to the growing crop passed to the vendor 
 in spite of a forfeiture and the assignee was entitled to recover from 
 the lessor who had resumed possession, the net value of the wheat 
 after it was threshed. ^-^ 
 
 ^Stamps V. Cooley, 91 N. Car. ^'Samson v. Rosa, 65 N. Y. 411; 
 
 316. Dayton v. Van Doozer, 39 Mich. 
 
 ^'* Gregory v. Wilson, 9 Hare 683, 749; Woodcock v. Carlson, 41 Minn. 
 
 689. 542, 43 N. W. 479. 
 
 "= Hukill v. Guffey, 37 W. Va. 425, "" Dayton v. Van Doozer, 39 Mich. 
 
 464, 15 S. E. 544; Wafer v. Mocato, 749. 
 
 9 Mod. 112; Reynolds v. Pitt, 19 ^"^ Samson v. Rose, 65 N. Y. 411. 
 Ves. 134, 141; 2 Story Eq. Jur. (13th "'Collier v. Cunningham, 2 Ind. 
 
 ed.) 1319-1324. App. 254, 28 N. E. 341,
 
 §• 494] TEEMINATION" OF TEXAXCY. 573 
 
 § 494. A possibility, right of entry, thing in action, cause of suit 
 or title for condition broken could not be granted or assigned over at 
 common law.^^'' While this ancient doctrine has been greatly relaxed 
 in modern times, the rule that a mere right of entry for forfeiture 
 cannot be assigned has never been ehanged.^^^ There were two prin- 
 cipal reasons why the assignment of things in action were held in- 
 valid at common law. One was to avoid maintenance. In early 
 times maintenance was regarded as an evil principally because it 
 would enable the rich and powerful to oppress the poor. This reason 
 has in modem times lost much but not the whole of its force. The 
 other reason is, a principle of law applicable to all assignments, that 
 they are void, unless the assignor has either actually or potentially 
 the thing which he attempts to assign. ^^- The right of reentry is 
 not an estate or interest in land, nor does it imply a reservation of a 
 reversion. It is a mere chose in action. Wlien enforced the grantor 
 is in through the breach of condition and not by the reverter.^^^ When 
 a lessee assigns the whole term, the right of reentry for a breach of a 
 condition subsequent is not reserved or retained. The right of re- 
 entry can only exist as an incident to a reversion.^^* But an assign- 
 ment of rents does not carry with it a right to reenter for breach of 
 condition. At common law the landlord is the party to enforce a 
 forfeiture for non-payment of rent even though he has assigned over 
 the rents to accrue during the term.^^^ Thus in a case where the 
 lessee forfeited his lease under a statute by an illegal use of the prem- 
 ises and the lease reversion was subsequently assigned, it was held that 
 the right to enforce the forfeiture did not pass to the assignee. The 
 forfeiture could only be enforced by the one holding the reversion at 
 the time the act affording a ground for forfeiture was committed."® 
 By statute in Illinois the common-law rule is changed and the same 
 right of entry, by action or otherwise, passes to the grantee of the 
 
 ""Bac. Abr. Assignment, A; Com. N. W. 221; Wright v. Hardy, 76 
 
 Dig. Assignment, A; Shep. Touch- Miss. 524, 24 So. 697. 
 
 stone 240; Rice v. Stone, 1 Allen "* Ohio Iron Co. v. Auburn Iron 
 
 (Mass.) 566. Co., 64 Minn. 404, 67 N. W. 221. 
 
 ^^^ Trask v. Wheeler, 7 Allen "= Chamberlin v. Brown, 2 Dougl. 
 
 (Mass.) 109. (Mich.) 120; Belinski v. Brand, 76 
 
 "=Rice V. Stone, 1 Allen (Mass.) 111. App. 404; Small v. Clark, 97 
 
 566; Jones v. Richardson, 10 Mete. Me. 304, 54 Atl. 758; Fenn v. Smart, 
 
 (Mass.) 481. 12 East 444; Bennett v. Herring, 3 
 
 ^^ Craig V. Summers, 47 Minn. C. B. (N. S.) 370, 91 E. C. L. 370. 
 
 189, 49 N. W. 742; Ohio Iron Co. v. ^'^ Small v. Clark, 97 Me. 304, 54 
 
 Auburn Iron Co., 64 Minn. 404, 67 Atl. 758.
 
 573 FORFEITURE FOR BREACH OF CONDITION'S. [§ 495 
 
 lessor as the lessor himself had.^^^ An earlier case distinguishing be- 
 tween the right of reentry, transferred to the grantee by force of the 
 statute and a reversionary interest, does not hold that such right of 
 reentry is not transferred by operation of the statute.^ ^^ By a similar 
 statute in New Jersey a grantee of a reversion may take advantage of 
 a right of reentry in the same manner as the original lessor could have 
 done.^^^ While in Kansas it has been held that where a right to enter 
 upon land to sow grain has been reserved by a lessor, such right is 
 assignable unless there is an express provision forbidding assign- 
 ment.^^" 
 
 § 495. A landlord is not bound to declare a forfeiture for breach 
 of a condition/" as he may insist on the tenant's fulfilling his obli- 
 gations under the lease. A condition for forfeiiure is for the benefit of 
 the lessor, not of the lessee. The lessor has the right to elect whether 
 or not he will enforce the forfeiture and if he waives it, the lease 
 still remains in force. ^■*- "Void," when used in this connection, means 
 voidable at the lessor's election. "Expire and terminate'' is also an 
 elliptical phrase, meaning "expire and terminate at the lessor's op- 
 tion.""^ The estate is not wholly void by reason of a breach. Its 
 avoidance is contingent upon the acts of the reversioner."^ "The 
 tenant cannot insist that his own act amounted to a forfeiture; if he 
 
 "^Thomasson v. Wilson, 146 111. 343; Planters' Ins. Co. v. Diggs, 8 
 
 384, 34 N. E. 432; Belinski V. Brand, Baxt. (Tenn.) 563; Levett v. Bick- 
 
 76 111. App. 404; Rev. Stat., chap. 80, ford, 8 Humph. (Tenn.) 614, 618; 
 
 § 14. Trask v. Wheeler, 7 Allen (Mass.) 
 
 ''" Sexton V. Chicago Storage Co., 109; Rice v. Stone, 1 Allen (Mass.) 
 
 129 III. 318, 21 N. E. 920. 566; Walker v. Engler, 30 Mo. 130; 
 
 ""Robinson v. Boys, 61 N. J. L. Johnson v. Gurley, 52 Tex. 222; 
 
 179, 38 Atl. 813. Stuyvesant v. Davis, 9 Paige (N. 
 
 ""Brewster v. Gracey, 65 Kan. Y.) 427; Clark v. Jones, 1 Denio 
 
 137, 69 Pac. 199. (N. Y.) 516, 43 Am. Dec. 706; Coch- 
 
 "^ Springer v. Chicago &c. Co., 102 ran v. Pew, 159 Pa. St. 184, 28 Atl. 
 
 111. App. 294. 219; Conger v. Transportation Co., 
 
 "=Todd V. Hall, 10 Conn. 544, 560; 165 Pa. St. 561, 30 Atl. 1038; Rob- 
 Brown V. Cavins, 63 Kan. 584, 66 erts v. Bettman, 45 W. Va. 143, 30 
 Pac. 639; Edmonds v. Mounsey, 15 S. E. 95; Doe v. Bancks, 4 B. & Aid. 
 Ind. App. 399, 44 N. E. 196; Alex- 401; Roberts v. Davey, 4 B. & Ad. 
 ander v. Touhy, 13 Kan. 64; Proc- 664; Doe v. Birch, 1 M. & W.'402. 
 tor V. Keith, 12 B. Mon. (Ky.) 252; '"Jones v. Carter, 15 M. & W. 
 Creveling v. West End Iron Co., 51 718; Bowman v. Foot, 29 Conn. 331. 
 N. J. L. 34, 16 Atl. 184; Smith v. '" Bowman v. Foot, 29 Conn. 331; 
 Miller, 49 N. J. L. 521, 13 Atl. 39; Shep. Touch., p. 139, 184. 
 Western Bank v. Kyle, 6 Gill (Md.)
 
 § 495] TEEMIXATIOX OF TEXA]S'CY. 574 
 
 could , . . the landlord would be defeated by a tenant showing 
 his own default." "In order to derive any benefit from the lease of 
 a mine it was the object of the landlord by introducing the forfeiture 
 clause, to compel his tenant to work it. That, therefore, being the ob- 
 ject of the parties in introducing the clause I think it will be fully 
 answered, by holding the lease to be void at the option of the land- 
 lord."^^^ A default alone does not create a forfeiture but only gives 
 lessor the right to reenter and demand one.^*® The rule that con- 
 ditions for forfeiture are for the benefit of the lessor alone holds good 
 even though language conveying a contrary impression is used in the 
 lease. Thus under a lease providing that breach of covenants by the 
 lessee "shall work an absolute forfeiture of this grant and lease, and 
 the privileges or easements hereby given shall absolutely cease, de- 
 termine, and become null and void," it was held that the lessee could 
 not terminate the lease by breach of covenant. ^*^ A similar result 
 was reached, although the lease declared that the breach of certain 
 covenants on the part of the lessee should render it void, and "not to 
 be revived without the consent of both parties."^*^ Thus a condition 
 that if rent is not paid, the lease is to terminate and the lessee is to 
 vacate the premises is for the benefit of the landlord and does not 
 enable the lessee to terminate the lease.^*** An assignment without 
 written consent of the lessor may be a breach both of a covenant and 
 a condition not to assign. After such a breach, the lessor has only 
 the option of forfeiting the lease for breach of condition and he has 
 not the option of declaring the assignment void. An assignment in 
 violation of the covenant is not void and does not avoid the lease but 
 passes the term and the only remedy is an action for breach of cove- 
 nant.^^*' The fact that under the conditions of a lease the execution 
 by the lessee of a certain agreement is a ground for forfeiture does not 
 render the agreement void as between the immediate parties to it, but 
 voidable only at the option of the lessor.^ ^^ 
 
 Moreover a landlord cannot enforce a forfeiture against such por- 
 tion of the demised premises as he desires to retake into his posses- 
 sion and waive it as to the rest of the premises.^^- 
 
 "5 Doe V. Bancks, 4 B. & Aid. 401, "" Morris v. De Wolf, 11 Tex. Civ. 
 
 per Hoboyd and Best. App. 701, 33 S. W. 556. 
 
 "« Alexander v. Touhy, 13 Kan. ^^ Randol v. Tatum, 98 Cal. 390, 
 
 64. 33 Pac. 433. 
 
 "'Wills V. Manufacturers' &c. Co., ^^' Willoughby v. Lawrence, 116 
 
 130 Pa. St. 222, 18 Atl. 721. 111. 11, 4 N. E. 356. 
 
 "'Phillips V. Vandergrift, 146 Pt. ^^= Ocean Grove &c. Assn. v. Ber- 
 
 St. 357, 23 Atl. 347. thall, 62 N. J. L. 88, 40 Atl. 779.
 
 575 FORFEITURE FOR BREACH OF COXDITIOXS. [§■ 496 
 
 § 496. Waiver of ground for forfeiture.— Any act done by a land- 
 lord knowing of a cause of forfeiture by his tenant, affirming the ex- 
 istence of the lease and recognizing the lessee as his tenant, is a 
 waiver of such forfeiture.^^^ ''Slight acts are deemed sufficient for 
 this purpose and any recognition of a tenancy subsisting after the 
 right of entry has accrued and the lessor has notice of the forfeiture, 
 will have the effect of a waiver.''^^* Yet it is also true that the mere 
 indulgence or silent acquiescence upon the part of the lessor is not to 
 be construed as a waiver of a breach of the condition of forfeiture.^^^ 
 The conducting of negotiations for the adjustment of past difficulties 
 would amount to a waiver of a notice of forfeiture previously given 
 by the landlord and he would be obliged to give another notice.^^^ 
 
 It is well settled that where the breach of a condition consists of a 
 single act, the forfeiture may be waived by any act which may ba 
 construed as an affirmance of the contract. ^^^ The waiver' need not 
 be by affirmative acts, any seeming acquiescence, laches or estoppel 
 will accomplish the same end.^^^ The courts have gone even further 
 and held that a covenantee may be estopped from claiming a forfeiture 
 for subsequent breach of condition. This doctrine has been applied 
 whenever the general course of dealing has led the party to believe 
 that strictness in compliance with the terms of the condition would 
 not be required. ^^'^ Yet even after an estoppel, if the covenantee give 
 notice that he intends henceforth to stand upon his legal right, it has 
 been held that he may enforce the terms of the contract strictly from 
 that time on.^^° On the other hand it has been declared that, if one 
 party to a contract intentionally by language or conduct leads the 
 
 i'*^ Williams v. Vanderbilt, 145 111. Cone, 52 Md. 698; Estel v. St. Louis 
 
 238, 34 N. E. 476; Planters' Ins. Co. &c. R. Co., 56 Mo. 282; Ireland v. 
 
 V. Diggs, 8 Baxt. (Tenn.) 563; Nichols, 46 N. Y. 413; Collins v. 
 
 Levett V. Bickford, 8 Humph. Hasbrouck, 56 N. Y. 157; Murray 
 
 (Tenn.) 614, 618, § 473. v. Harway, 56 N. Y. 337; Becker v. 
 
 '"Garnhart v. Finney, 40 Mo. 449; Werner, 98 Pa. St. 555. 
 Nagel v., League, 70 Mo. App. 487. ^^ Barrie. v. Smith, 47 Mich. 130, 
 
 '"Island Coal Co. v. Combs, 152 10 N. W. 168; Vicksburg &c. R. Co. 
 
 Ind. 379, 53 N. E. 452; Lindsey v. v. Ragsdale, 54 Miss. 200; Allen v. 
 
 Lindsey, 45 Ind. 552, 567; Jackson Dent, 4 Lea (Tenn.) 676; Johnson 
 
 V. Crysler, 1 Johns. Cas. (N. Y.) 125. v. Douglass, 73 Mo. 168. 
 
 ""Palmer v. Ford, 70 111. 369. '^^-Thropp v. Field, 26 N. J. Eq. 
 
 "^Gist V. Smith, 78 Ky. 367; Alex- 82; Home L. Ins. Co. v. Pierce, 75 
 
 ander v. Touhy, 13 Kan. 64; Rump 111. 426; McNeil v. Amey, 2 W. N. 
 
 V. Schwartz, 56 Iowa 611, 10 N. W. C. 65; Hill v. Wand, 47 Kan. 340, 27 
 
 99; Michigan M. Ins. Co. v. Bowes, Pac. 988. 
 
 42 Mich. 19, 51 TST. W. 962; Deyve v. '«> Times Co. v. Seibrecht, 15 
 
 Jamison, 33 Mich. 94; Bechtel v. Phila. 235.
 
 § 496] TERMINATION OF TENANCY. 576 
 
 obligor to believe that he need not perform promptly, and that no ad- 
 vantage will be taken of the failure, it is equivalent to an express 
 agreement to that effect and is a waiver of the forfeiture.^^^ A lessor 
 having, by his words and conduct, caused his lessees to believe that 
 he would not enforce a forfeiture provided for in the lease would be 
 equitably estopped from seeking to avail himself of the forfeiture, al- 
 though the consent was not given in writing as required by the lease. 
 The old maxim of the common law that an instrument under seal 
 cannot be varied or abrogated by words not under seaP*'^ is not appli- 
 cable. There is no question of any variation or abrogation of the 
 sealed instrument but merely a waiver by the lessor of his right to de- 
 clare a forfeiture thereunder. If the facts show a clear intention on 
 the part of the lessor to waive his right of forfeiture, there is no 
 reason why he should not be held to such waiver. The case is an ap- 
 propriate one for the application of the doctrine of estoppel.^ ®^ If a 
 lessor, by his acquiescence, induced lessees to believe that strict ob- 
 servance of their covenant to pay rent was not required by him, it is 
 inequitable in him to enforce a forfeiture and the court will not do 
 it.^*'* A landlord may waive his right to declare a forfeiture of the 
 lease for non-payment of rent and does so by stating a future date at 
 which the rent must be paid.^^^ 
 
 When the agency of the landlord is involved in any way in the act 
 which is to work a forfeiture, he ought so to act as to make it appear 
 clearly that he intends to insist upon the forfeiture. Thus a landlord 
 must demand a bond for payment of rent which the tenant has 
 agreed to give or his failure to give it will not forfeit the lease.^'^'' 
 
 "V^liere a landlord waives a breach for which he might forfeit the 
 lease, the effect of the forfeiture is thereby wiped out for all purposes, 
 and the landlord cannot on account of them escape from the obliga- 
 tion of his covenant to renew.^*'^ The doctrine of waiver only applies 
 where the act or omission of the tenant renders the lease voidable 
 and not where it is declared absolutely void on the happening of the 
 particular event. The distinction is between cases where the landlord 
 may put an end to the lease by an entry for the wrong done and 
 those where the wrong terminates the lease without any act on the part 
 
 "1 McCraw v. Old Nortli State Ins. '^ Thropp v. Field, 26 N. J. Eq. 82. 
 
 Co., 78 N. Car. 149. ^<'' Cradle v. Warner, 140 111. 123, 
 
 "=Barnett v. Barnes, 73 111. 216; 29 N. E. 1118. 
 
 Hume Bros. v. Taylor, 63 111. 43; i"" Tate v. Crowson, 6 Ired. L. (N. 
 
 Chapman v. McGrew, 20 111. 101. Car.) 65. 
 
 ^"^ Moses v. Loomls, 156 111. 392, 40 ^" Garnhart v. Finney, 40 Mo. 449. 
 N. E. 952.
 
 577 rORFEITCKE FOR BREACH OF CONDITIONS. [§ 497 
 
 of the landlord. In the former case, the landlord may waive the for- 
 feiture by any act which affirms the continuance of the tenancy; but 
 in the latter the lease being ipso facto void is incapable of confirma- 
 tion.^ «« 
 
 As against a lien claimant upon a leasehold estate which had come 
 into the hands of the lessor, it was claimed that the lease had been 
 forfeited which would bar the lien, but the court held the facts did 
 not justify this conclusion and that the lease had not been forfeited. 
 No notice to quit or to surrender had been given. No demand of pos- 
 session was made and the leasehold interest was not terminated by any 
 act of the parties amounting to a forfeiture. The lessor acquired the 
 lessee's interest by purchase ; he paid the agreed price, took possession 
 of the premises and the accounts between the parties were considered 
 settled. These acts rebut any presumptions that might tend to estab- 
 lish any intention to forfeit the lease,^®^ 
 
 § 497. One common mode of effecting a waiver is by the receipt 
 of rent due under the forfeited lease, and the rule in this respect is 
 that the acceptance by the lessor of rent accruing subsequent to the 
 breach of condition with knowledge of the existence of a cause for 
 forfeiture is a waiver thereof."" Moreover where a lessor sues for the 
 entire amount of rent, he ratifies and confirms the continued existence 
 of the lease, and waives all previous forfeitures."^ And distraining 
 for rent after a forfeiture has been held to have the same effect."- 
 
 '«* Smith V. Saratoga Co. &c. Ins. Paige 427. North Carolina: Rich- 
 Co., 3 Hill (N. Y.) 508; Goodright burg v. Hartley, Busb. L. 418; 
 V. Davids, Cowp. 803; Doe v. Rees, Texas, Gulf &c. R. Co. v. Settegast, 
 4 Bing. N. C. 384; Doe v. Watts, 79 Tex. 256, 15 S. W. 228. Utah: 
 7 Term R. 79. Young Trust Co. v. Wagener, 13 
 
 "'Ellis V. Brisacher, 8 Utah 108, Utah 236. 44 Pac. 1030. Virginia: 
 
 29 Pac. 879. McKildoe v. Darracott, 13 Gratt. 
 
 "" Alabama: Dahm v. Barlow, 93 (Va.) 278. Washington: Pettygrove 
 
 Ala. 120, 9 So. 598; Brooks v. Rog- v. Rothchild, 2 Wash. 6, 26 Pac. 78. 
 
 ers, 99 Ala. 423, 12 So. 61. Calif or- Wisconsin: Jolly v. Single, 16 Wis. 
 
 nia: McGlynn v. Moore, 25 Cal. 280; Gomber v. Hackett, 6 Wis. 323. 
 
 384; Silva v. Campbell, 84 Cal. 420, English: Goodright v. Davids, Cowp. 
 
 24 Pac. 316. Illinois: Watson v. 803; Roe v. Harrison, 2 Term R. 
 
 Fletcher, 49 111. 498. Missouri: 425; Arnsby v. Woodward, 6 B. & C. 
 
 Garnhart v. Finney, 40 Mo. 449. 519. 
 
 Nebraska: Stover v. Hazelbaker, 42 "^ Alexander v. Touhy, 13 Kan. 
 
 Neb. 393, 60 N. W. 397. New Hamp- 64; Randol v. Tatum, 98 Cal. 390, 
 
 shire: Coon v. Brickett, 2 N. H. 33 Pac. 433. 
 
 163. New York: Conger v. Duryee, "-McKildoe v. Darracott, 13 Gratt. 
 
 90 N. Y. 594; Stuyvesant v. Davis, 9 (Va.) 278. 
 
 Jones L. & T.— 37
 
 § 498] TERMINATION OF TENANCY. ' 578 
 
 It seems also that a mere demand for rent accruing after a forfeiture 
 without suit, is a conclusive waiver of the forfeiture, as such a de- 
 mand recognizes the lease as still existing.^'^^ 
 
 Upon a question as to the effect of the receipt of rent, knowledge 
 of the facts out of which the forfeiture arises is essential to waiver. 
 Without such knowledge a waiver cannot be said to be established or 
 exist. Waiver can only be found upon knowledge that the condition 
 of the lease was broken. The forfeiture must be known as one of the 
 essential elements of waiver.^'^* Waiver is where one in possession of 
 any right, whether conferred by law or by contract, with knowledge^ 
 of the material facts, does or forbears doing something inconsistent 
 with the right, or of his intention to rely on it ; thereupon he is said 
 to have waived it and he is precluded from claiming anything by 
 reason of it afterward. It must always be made with knowledge and 
 intent to waive.^^^ The question being one of knowledge and intent, 
 if the evidence is disputed and the acts relied on of an inconclusive 
 nature, the question is for the jury.^^® 
 
 The effect of a receipt of rent to waive a forfeiture cannot be 
 qualified by subsequent declarations of the lessor as to his secret in- 
 tentions. Thus a letter written by the lessor subsequent to the waiver 
 explaining his motives in accepting the rent was properly held not to 
 be admissible in evidence to contradict the waiver.^" 
 
 § 498. The mere reception of rent accrued before the time for 
 the termination of the tenancy is not a waiver of the notice to quit 
 nor a renewal of the lease ; for the lessor has a right to that absolutely, 
 whether the tenancy is determined or not.^^^ The current of author- 
 ity is against the doctrine that by the acceptance of rent which fell 
 due before the alleged determination of the lease, the lessor waived his 
 
 "*Camp v. Scott, 47 Conn. 366, ^^ Bennecke v. Insurance Co., 105 
 
 375; Nagel v. League, 70 Mo. App. U. S. 355. 
 
 487. "«Okey v. State Ins. Co., 29 Mo. 
 
 ^"* Robinson v. Boys, 61 N. J. L. App. 105; Fitch v. Woodruff &c. 
 
 179, 38 Atl. 813; Collins v. Has- Works, 29 Conn. 82; Fox v. Hard- 
 
 brouck, 56 N. Y. 157; Conger v. ing, 7 Cush. (Mass.) 516; Traynor 
 
 Duryee, 90 N. Y. 594; Walker v. v. Johnson, 1 Head (Tenn.) 51; 
 
 Engler, 30 Mo. 130; Keeler v. Davis, Robinson v. Boys, 61 N. J. L. 179, 
 
 5 Duer (N. Y.) 507; Crouch v. Wa- 38 Atl. 813. 
 
 bash &c. R. Co., 22 Mo. App. 315; "^ Dahm v. Barlow, 93 Ala. 120, 9 
 
 Dendy v. Nlcholl, 4 C. B. (N. S.) So. 598; Brooks v. Rogers, 99 Ala. 
 
 376, 93 E. C. L. 376; Croft v. Lum- 433, 12 So. 61. 
 
 ley, 5 E. & B. 648, 85 E. C. L. 648. "' Norris v. Morrill, 43 N. H. 213.
 
 579 FORFEITURE FOR BREACH OF CONDITIONS. [§ 499 
 
 right to repossess himself of his estate."'^ So the rule may be stated 
 to be that the receipt by a lessor of rents past due does not operate as 
 a waiver by the lessor of a right of forfeiture reserved by the lease for 
 non-payment of rent subsequently falling due.^^" Furthermore the 
 mere receipt of rent due before forfeiture, after a lease has been for- 
 feited, will not be a waiver of forfeiture.^^^ The same rules would 
 apply where the right to forfeit for non-payment of rent was conferred 
 by statute and rent accruing prior to the giving of a notice to quit 
 on that ground had been received after the notice was given. ^^^ 
 
 § 499. That lessors are indulgent and accommodating, allowing a 
 default to continue and the amount of rent due to increase steadily, 
 simply failing to put the tenant out, cannot be regarded as proof of 
 their election to waive the right to declare a forfeiture and take 
 possession, as provided for in the lease. A lessor of real property will 
 not be estopped to claim the right to possession of the premises for 
 non-payment of rent simply because he permits default to be made, 
 and to continue as to such payments. Such acts cannot at any rate 
 be regarded as an election for the future, any more than the accept- 
 ance of rent from month to month, and while a tenant is in default 
 in the performance of some of the conditions of a lease, will be held 
 to relieve him of performance in the future.^** However, the option 
 given to a lessor to declare a forfeiture is to be exercised, if exercised 
 at all, within a reasonable time after learning of the lessee's default ; 
 in other words it is possible for a lessor, by neglecting to assert his 
 right at the time of a known default, or within a reasonable time after- 
 ward, to waive it. In this particular there is no distinction between 
 leases and other contracts. It is a general rule that if a party be- 
 comes entitled to rescind or terminate a contract or claim a for- 
 feiture, by reason of the default of another, he must do it within a 
 reasonable time.^^^ Yet a forfeiture was held not to be waived in con- 
 sequence of a tenant's holding over without receiving notice to quit, 
 
 "» Bowman v. Foot, 29 Conn. 331. Y.) 220; Stuyvesant v. Davis, 9 
 
 But see Coon v. Brickett, 2 N. H. Paige (N. Y.) 427; Bleecker v. 
 
 163. Smith, 13 Wend. (N. Y.) 530. 533. 
 
 "» Silva v. Campbell, 84 Cal. 420, ^^- Carraher v. Bell, 7 Wash. 81, 34 
 
 24 Pac. 316; Bowman v. Foot, 29 Pac. 469. 
 
 Conn. 331; Pendill v. Union Mining "^Douglas v. Herms, 53 Minn. 204, 
 
 Co., 64 Mich. 172, 31 N. W. 100; 54 N. W. 1112. 
 
 Phelps V. Illinois &c. R. Co., 63 111. "*Gluck v. Elkan, 36 Minn. 80, 30 
 
 468; Robbins v. Conway, 92 111. App. N. W. 446. 
 
 173. ^"Catlin v. Wright, 13 Neb. 558, 
 
 ''^Jackson v. Allen, 3 Cow. (N. 14 N. W. 530.
 
 § 500] TERMIXATIOX OF TEXAXCY. 580 
 
 for the mere holding over would not entitle the tenant to notice to 
 quit. To amount to a waiver, the holding over must be under such 
 circumstances as to Justify the court in finding a new term had been 
 created between the parties. ^®^ 
 
 § 500. The doctrine of waiver does not apply when the covenant 
 broken is a continuing one. "When the failure to comply with a con- 
 tinuing covenant constitutes a breach of condition for which the lease 
 may be forfeited, the receipt of rent subsequently accruing, although 
 operating to cure past breaches, does not dispense with the condition 
 and for future non-compliance the lease may be forfeited.^*" The 
 fact that former breaches of the condition of a lease are waived by the 
 acceptance of rent, and that a former action, in which the forfeiture 
 of the lease was claimed, is dismissed, would not preclude the right of 
 the lessor to maintain an action for subsequent breaches of covenant? 
 in the lease, which are continuing in their nature.^^* The waiver of 
 one forfeiture is of course not a waiver of a subsequent forfeiture ; and 
 if the act of forfeiture be continuing, a waiver of a right of reentry 
 for one breach will not preclude a reentry for a new or continuing 
 breach. Thus a lessor may take advantage of a forfeiture occurring 
 from day to day, as in the case of a neglect to repair or keep a stair- 
 way and area open and clean and free from rubbish or the like, not- 
 withstanding a previous receipt of rent.^^^ So also where the cove- 
 nant was that rooms should not be used for certain purposes it was 
 held that there was a breach of this covenant every day during the 
 term that they were so used ; and that the lessor was not precluded, 
 by receiving rent subsequent to the commencement of such user, from 
 taking advantage of the forfeiture, provided the user continued after 
 such receipt of rent.^^° Covenants against encumbering fixtures and 
 those against breaking city ordinances have been classed in the same 
 category and held to be continuing in their nature.^'' ^ But a sub- 
 lease is no more a continuing act of forfeiture than an assignment. 
 The cases are numerous in which forfeitures by sub-letting have been 
 
 1^ Calderwood v. Brooks, 28 Cal. ^*' Jones v. Durrer, 96 Cal. 95, 30 
 
 151. Pac. 1027. 
 
 ^"McGlynn v. Moore, 25 Cal. 384; ^*=' Gluck v. Elkan, 36 Minn. 80, 30 
 
 Jones V. Durrer, 96 Cal. 95, 30 Pac. N. W. 446; Doe v. Gladwin, 6 A. & 
 
 1027; Gluck v. Elkan, 36 Minn. 80, E. (N. S.) 953, 51 E. C. L. 953. 
 
 30 N. W. 446; Alexander v. Hodges, ^'° Doe v. Woodbridge, 9 B. & C. 
 
 41 Mich. 691, 3 N. W. 187; Doe v. 376, 17 E. C. L. 173. 
 
 Gladwin, 6 A. & E. (N. S.) 953, 51 "'Alexander v. Hodges, 41 Mich. 
 
 E. C. L. 953; Doe v. Woodbridge, 9 691, 3 N. W. 187. 
 B. & C. 376, 17 E. C. L. 173.
 
 581 PORPEITURE POR BREACH OF CONDITIONS. [§ 501 
 
 held to be waived by the subsequent acceptance of rent, yet there could 
 have been no difficulty in enforcing the forfeitures in these cases if the 
 breaches had been continuing. A license to assign is a dispensation 
 of the whole condition whereas it has been held that a lessor who has 
 a right of reentry on a breach of a covenant not to underlet, does not, 
 by waiving his entry on one underletting, waive his right to reenter 
 on a subsequent underletting. In the former case the waiver is of the 
 condition itself; in the latter, only of the forfeiture for a particular 
 breach. But in both cases each breach is a single act and not a con- 
 tinuing act of f orf eiture.^^2 
 
 There is nothing in the nature of a covenant to build by a given 
 time that indicates that a continued failure to perform the covenant 
 will produce a succession of breaches; but, on the- contrary, it more 
 nearly resembles in this respect, the covenant not to assign, or for a 
 reentry in case of the bankruptcy of the lessee, in both of which cases, 
 the breach, if it takes place, is once for all. The proposition that a 
 covenant to build is a continuing covenant is unsupported by reason 
 or authority, and therefore the receipt of rent after notice of the 
 breach was a waiver of the right to enter for the forfeiture.^®' 
 
 § 501. Liability for rents subsequent to a forfeiture. — Under the 
 ordinary provision that a lease should be void at the election of the 
 lessor upon breach of condition, the entry by the lessor for such breach 
 terminates the lease and with it the right to collect future rents.^®* 
 Where, for non-payment of rent, a tenant has been removed from the 
 premises by summary proceedings under the statute, he can claim ex- 
 emption from liability for rent as such during the remainder of the 
 term. Only the rent accrued up to the determination of the lease can 
 be recovered.^®^ After a lessor has availed himself of a privilege to 
 declare a forfeiture for non-payment of rent, the lessee may vacate 
 the premises and not be liable for rent beyond the current month. ^®® 
 
 A provision in a lease that on breach of condition the lessor may re- 
 enter without such reentry working a forfeiture of the rent to be paid 
 is valid. If not as a stipulation for future rents in a strict sense, it 
 is valid as a stipulation for damages. The rent collected from other 
 tenants by a landlord inures to the benefit of the former lessee though 
 
 "=McKildoe v. Darracott, 13 Grat. 47 111. App. 568; Jones v. Carter, 
 
 (Va.) 278; Doe v. Bliss, 4 Taunt. 15 M. & W. 718. 
 735, Archbold 97. "= Campbell v. Nixon, 2 Ind. App. 
 
 '"' McGlynn v. Moore, 25 Cal. 384. 463, 28 N. E. 107. 
 
 "' Grommes v. St. Paul Trust Co., ''"^ King v. Davies, 2 Kan. App, 
 
 147 111. 634, 35 N. E. 820, affirming 634, 42 Pac. 942.
 
 § 503] TERMINATION OF TENANCY. 583 
 
 the acceptance of such rent by the landlord is not a surrender of 
 his rights against the original lessee.^^^ It is entirely unobjection- 
 able to insert in a lease a provision that after entry by the lessor for 
 breach of condition the obligation of the lessee to pay rent shall con- 
 tinue as before.^^^ So, provisions in a lease that upon a reentry for 
 breach of condition the landlord may relet the premises for the ac- 
 count of the lessee, holding him for any deficiency below the agreed 
 rate, are not uncommon and are uniformly upheld. ^^^ 
 
 III. Effect of Non-Payment of Bent. 
 
 § 502. The right to enter for non-payment of rent is not an in- 
 cident of a lessor's estate at common law, but must be specially re- 
 served in the lease. At common law a refusal or neglect to pay rent 
 does not work a forfeiture of the term, unless the lease contains ex- 
 press conditions of forfeiture in case of the non-payment of rent.^"" 
 This rule is not affected by those statutes making the service of the 
 complaint in an ejectment suit a substitute for demand and entry. 
 These statutes do not assume to give a right of reentry where such 
 right does not already exist, but merely provide that where the right 
 is already subsisting the commencement of an action shall be equiva- 
 lent to an actual entry.^*'^ Non-payment of rent is no cause for the 
 forfeiture of the lease unless it is expressly so provided. The tenant 
 can retain possession until the end of the term, though it be morally 
 certain that the landlord will receive no rent.^°^ So failure to make 
 due payment of the royalties reserved in a mining lease will not, in 
 and of itself, work a forfeiture, when the lease does not provide that 
 it shall become void in the event of non-payment.-"^ In one case a 
 tenant entered and occupied under a lease, agreeing to make certain 
 improvements in lieu of paying rent, but failed to make the improve- 
 
 "^Grommes v. St. Paul Trust Co., leaf, 11 Gray (Mass.) 98; Hodgkins 
 
 147 111. 634, 35 N. E. 820, affirming v. Price, 137 Mass. 13. 
 
 47 111. App. 568. '°' Woodcock v. Carlson, 41 Minn. 
 
 "^Heims Brewing Co. v. Flan- 542, 43 N. W. 479. 
 
 nery, 137 111. 309, 27 N. E. 286. '"• Buckner v. Warren, 41 Ark. 
 
 •'" Grommes v. St. Paul Trust Co., 532; Chipman v. Emeric, 3 Cal. 273; 
 
 147 111. 634, 35 N. E. 820, 47 111. Wirt v. Philips, 1 Hawaii 61; Beal 
 
 App. 568; Hall v. Gould, 13 N. Y. v. Bass, 86 Me. 325, 28 Atl. 1088; 
 
 127; Morgan v. Smith, 70 N. Y. 537. Meroney v. Wright, 81 N. Car. 390. 
 
 =*' Woodcock v. Carlson, 41 Minn. ="= Wakefield v. Sunday Lake Min. 
 
 542, 43 N. W. 479; Bartlett v. Green- Co., 85 Mich. 605, 49 N. W. 135; 
 
 Dare v. Boylston, 6 Fed. 493.
 
 583 EFFECT OF NON-PAYMENT OF RENT. [§' 503 
 
 ments according to agreement. He did not thereby forfeit his lease 
 without any further act on the part of the lessor, but was entitled to 
 occupy under it, and could only be held liable for damages accruing 
 by reason of his failure to perform. He was not liable for use and 
 occupation.^''* 
 
 Forfeiture for non-payment of rent has always been a harsh remedy, 
 liable to produce hardships, and has not been favored by the law. 
 Strict compliance with several important requisites was therefore re- 
 quired.^"^ 
 
 When a right of entry was made contingent upon there being no 
 sufficient distress for rent^ it was held that no right of reentry accrued 
 until it was shown that there was no sufficient distress upon the prem- 
 ises.^°^ But ordinarily, in enforcing a forfeiture for' non-payment of 
 rent, it is immaterial whether there is a sufficient distress on the 
 premises to satisfy the claim for rent.^'^^ Where continued default in 
 the payment of rent for a certain period is a ground for forfeiture, 
 the only method of avoiding the forfeiture is payment or tender of the 
 rent during such period. A tender before the day when the rent is 
 due will be unavailing.^"^ 
 
 § 503. Necessity for demanding rent. — Even when the right of re- 
 entry is reserved for breach of a covenant to pay rent, the old common- 
 law rule was that, before there would be a forfeiture for non-pay- 
 ment, rent must be demanded in the precise sum due, on the day it is 
 due, at some convenient hour before sunset on that day, on the prem- 
 ises, at the most notorious place thereon, and if there be a dwelling- 
 house, at the front door thereof. ^''^ The common-law rule was so strict 
 
 ="'*Raybourn v. Ramsdell, 78 111. 4 Colo. 303. New Hampshire: 
 
 622. Jewett v. Berry, 20 N. H. 36; Jones 
 
 =">= Chapman v. Kirby, 49 111. 211. v. Reed, 15 N. H. 68; McQuesten v. 
 
 ^'^Den V. Craig, 15 N. J. L. 191. Morgan, 34 N. H. 400. Tennessee: 
 
 Long discussion of early law in re- Parks v. Hays, 92 Tenn. 161, 22 S. 
 
 gard to rent. W. 3. Illinois: Sexton v. Carley, 
 
 ^"^ Becker v. Werner, 98 Pa. St. 47 111. App. 316 ; Williams v. Van- 
 
 555. derbilt, 145 111. 238, 34 N. E. 476; 
 
 ■"^ Illingworth v. Miltenberger, 11 Chadwick v. Parker, 44 111. 326. 
 
 Mo. 80. Nebraska: Haynes v. Union Im. Co., 
 
 ^''^ Indiana: Phillips v. Doe, 3 Ind. 35 Neb. 766, 53 N. W. 979. Massa- 
 
 142; Jenkins v. Jenkins, 63 Ind. chusetts: Chapman v. Harney, 100 
 
 415. California: Gage v. Bates, 40 Mass. 353. English: Doe v. Wand- 
 
 Cal. 384. Kansas: Chandler v. Mc- lass, 7 Term R. 113, 117. Ohio: 
 
 Ginning, 8 Kan. App. 421, 55 Pac. 103. Boyd v. Talbert, 12 Ohio 212. Ver- 
 
 Virginia: Johnston v. Hargrove, 81 mont: Willard v. Benton, 57 Vt. 286. 
 
 Va. 118. Colorado: Miller v. Sparks, United States: Connor v. Bradley, 1
 
 § 503] TERMINATION OF TENAXCY. oS-i 
 
 that the slightest failure to comply with any one of these requirements 
 rendered the demand nugatory.^ ^° The law fixes with precision the 
 time and place for a demand of rent, and if the demand is not made 
 then and there, the lessee is allowed to infer that the lessor intends to 
 waive his right to insist on a forfeiture of the estate. This rule apprises 
 a tenant of the exact time and place when and where he is to be called 
 on for the rent, and gives him opportunity to be ready to meet the 
 demand and save his estate. When the forfeiture was to take place 
 on default in payment of rent for thirty days, it was held that the de- 
 mand should be made either on the day the rent was due or on the 
 last day of the thirty-day period. If the lessor might come to the 
 premises on any day, and at any time of the day, for thirty days, or 
 as the condition of some leases are for a year, and make a sufficient 
 demand, the apparent object of the rule which fixes the time and place 
 for a demand of rent would not be answered. The lessee would have 
 no means of knowing when the lessor would come for the rent.^^^ It 
 was also essential that a demand be made in fact, though no person be 
 present on the premises to comply with it.^^^ But proceedings to dis- 
 possess a tenant for non-payment of rent are not invalidated because 
 of demand of the rent with interest ; the landlord is entitled to inter- 
 est, as an incident of the principal, from the time of the default in 
 payment, and is justified in demanding it.^" Moreover, no particular 
 form of words is necessary in making a demand; a party making it 
 must have intended to make it, and the other party must have under- 
 stood that a demand was made ; all that is necessary is that both par- 
 ties should understand by what was said and done that a demand wa& 
 made, and the tenant need not be told what will be the consequences, 
 if he does not pay.^^* A convenient time before sunset means immedi- 
 ately preceding it — time enough before to count and pay the money ; 
 and the jury cannot be allowed to find that an earlier time is a con- 
 venient time; it is a matter of law.^^^ 
 
 The landlord can, nevertheless, bring an action of use and occupa- 
 tion for his rent before making any demand for it.-^*' While a demand 
 
 How. 211. Minnesota: Byrane v. Byrane v. Rogers, 8 Minn. 281; Con- 
 Rogers, 8 Minn. 281. New York: nor v. Bradley, 1 How. (U. S.) 211; 
 Jackson v. Harrison, 17 Johns. 66; Adams on Ejectment, 4th ed., 187. 
 Van Rensselaer v. Jewett, 2 N. Y. ^'^ People v. Dudley, 58 N. Y. 323. 
 141. ="*Norris v. Morrill, 43 N. H. 213. 
 
 "'Bacon v. Western Furniture "'Smith v. Whitbeck, 13 Ohio St. 
 
 Co., 53 Ind. 229. 471. 
 
 "' McQueston v. Morgan, 34 N. H. "" Spaulding v. M'Osker, 7 Mete. 
 
 400; Jones v. Reed, 15 N. H. 68. (Mass.) 8. 
 
 "= Chapman v. Kirby, 49 111. 211;
 
 585 EFFECT OF NON-PAYMENT OF RENT. [§ 504 
 
 is necessary before a lessor proceeds to enforce a forfeiture, none is 
 required in an action of covenant for rent. The law is well settled 
 that in an action of covenant for rent no demand is necessary.^" 
 
 There was probably no doctrine of the common law that required 
 a landlord to make a demand before forfeiture on breach of a covenant 
 to repair, or insure, or keep insured, or similar agreements. The great 
 strictness required of landlords who sought forfeitures for the non- 
 payment of rent arose from the extraordinary remedy they possessed 
 for the collection of that character of debt, by way of distress. A land- 
 lord would, under certain contingencies, find himself embarrassed to 
 decide when, where, and what to demand of his tenant should a demand 
 be a prerequisite to his right to reenter for non-payment of taxes.^^^ 
 
 A statement by a tenant that he did not acknowledge an alleged 
 assignee, and did not wish to pay rent to him, is not a refusal to pay 
 rent, sufficient to cause a forfeiture, if in fact he did not know the 
 assignee. The tenant did just what any tenant ought to do when called 
 upon to acknowledge the title of a stranger and pay rent to him. If 
 leases could be forfeited by making secret assignments of a lease and 
 demand made by the assignee without making known the fact of as- 
 signment, no tenant would ever be safe.^^^ 
 
 § 504. An express stipulation in a lease dispensing with the re- 
 quirement for a demand for rent is valid and entitles the lessor to en- 
 force a forfeiture without making any demand.^'" The lease may pro- 
 vide in express terms that the estate shall be forfeited if the rent is. 
 not paid, without any entry and though no legal demand of rent is 
 • made; and in such case the agreement of the parties supersedes the 
 general rule of law as to the necessity for a demand,-^^ It is a univer- 
 sally recognized principle that the demand for payment of rent re- 
 quired by some statutes and at common law as a condition precedent 
 
 "'M'Murphy v. Minot, 4 N. H. Pac. 621; Shanfelter v. Horner, 81 
 
 251; Remsen v. Conklin, 18 Johns. Md. 621, 32 Atl. 184; Belinski v. 
 
 (N. Y.) 447; Coon v. Brickett, 2 N. Brand, 76 111. App. 404; Sweeney 
 
 H. 163; Com. Dig. Rent. D. 4. v. Garrett, 2 Disney (Ohio) 601 
 
 -"Byrane v. Rogers, 8 Minn. 281; Byrane v. Rogers, 8 Minn. 281 
 
 Garner v. Hannah, 6 Duer (N. Y.) McQuesten v. Morgan, 34 N. H. 400 
 
 262. But see Tate v. Crowson, 6 Doe v. Masters, 2 B. & C. 490; Good- 
 
 Ired. L. (N. Car.) 65; Jackson v. right v. Cator, Doug. 478. 
 Harrison, 17 Johns. (N. Y.) 66. -'McQuesten v. Morgan, 34 N. H. 
 
 ''» O'Connor v. Kelly, 41 Cal. 432. 400; Thomas v. Walmer, 18 Ind. 
 
 ^''''Faylor v. Brice, 7 Ind. App. App. 112, 46 N. E. 695; Island Coal 
 
 551, 34 N. E. 833; Fifty Associates Co. v. Combs, 152 Ind. 379, 53 N. 
 
 V. Howland, 5 Cush. (Mass.) 214; E. 452. 
 Lewis V. Hughes, 12 Colo. 208, 20
 
 §• 504] TERMINATION OF TENANCY. 586 
 
 to reentry may be waived by the parties for whose protection it is re- 
 quired. ^^^ A clause in a lease waiving notice, demand for the payment 
 of rent or possession, and agreeing that the fact of the non-payment 
 of the rent should constitute a forcible detainer is valid and effective 
 in an action under the Forcible Detainer Act.^^^ With even greater 
 reason a waiver of notice and demand would be effective where the 
 lessor is in quiet possession after the alleged forfeiture.^^* After such 
 a waiver the right of a lessor to enter is not dependent upon his having 
 declared a forfeiture of the lease, but exists, if at all, because of a 
 lawful termination of the lease by some act or omission constituting a 
 breach of condition. So that a lessor would not be guilty of a trespass 
 in making a peaceable entry.^^^ 
 
 A provision that, if rent shall be in arrear more than ninety days, 
 the tenancy shall be at once and without notice of any kind deter- 
 mined, was held to render a demand for rent unnecessary. This con- 
 dition was not subject to the common-law requirements as to demand 
 and entry.2^*' It has been held that a provision that lessor may enter 
 "without further demand" means that no demand at all is necessary. 
 It was argued that the word "further" implied that a previous demand 
 had been made ; but that would be an absurdity, for one demand would 
 be sufficient, without an agreement that no other demand should be 
 required. The word is not so appropriate as the word "any," but it has 
 the same meaning when so used in a lease, and has been so construed 
 in a similar condition.^^^ If the stipulation only waives the demand, 
 the landlord must claim his forfeiture at the time it accrues by reentry 
 or suit, or he will lose it in the same manner he would have done had 
 a demand been necessary and he failed to make it. The demand is all 
 that is waived ; the intention to assert his rights under the forfeiture in 
 every other particular is as necessary as without the stipulation. 
 Furthermore, a waiver of demand on the day the rent was due would 
 not relieve the landlord from the duty of making a demand if he 
 wishes to enter at a subsequent date;^^^ But where a lease provided 
 
 ^ Pendill v. Union Mining Co., 64 ^ Schaefer v. Silverstein, 46 111. 
 
 Mich. 172, 31 N. W. 100. App. 608. 
 
 --'Espen V. Hinchliffe, 131 111. -'= Shanfelter v. Horner, 81 Md. 
 
 468, 23 N. E. 592; Jackson v. Col- 621, 32 Atl. 184; Cooke v. Brice, 20 
 
 lins, 11 Johns. (N. Y.) 1; Sweeney Md. 397. 
 
 V. Garrett, 2 Disney (Ohio) 601; ==^ Fifty Associates v. Rowland, 5 
 
 Fifty Associates v. Rowland, 5 Cush. (Mass.) 214; 1 Bac. Abr. Con- 
 
 Cush. (Mass.) 214; Eichart v. Bar- dition, O, 2. 
 
 gas, 12 B. Mon. (Ky.) 462. -^ Byrane v. Rogers, 8 Minn. 281. 
 
 "^Island Coal Co. v. Combs, 152 
 Ind. 379, 53 N. E. 452.
 
 587 EFFECT OF NON-PAYMEXT OF RENT. [§ 505 
 
 that no notice should be necessary, on failure to pay rent, to terminate 
 lease, it was held that demand for rent was unnecessary as well.^^^ 
 
 A provision in a clause for forfeiture for non-payment of rent re- 
 quiring ten days' notice to the lessee may be waived by him, and where 
 the lessee agreed to end the lease and surrender the term, his right to 
 notice cannot be insisted upon.^^** 
 
 § 505. Damages from an alleged trespass by a landlord will not 
 consitute such a legal set-off against an unpaid quarter's rent that 
 it will prevent a forfeiture for non-payment of rent.-'^^ In summary 
 proceedings for non-payment of rent, the failure of the landlord to 
 repair promptly the premises according to his agreement cannot be 
 made the subject of a counter-claim, though it might be in an action 
 for rent.^^^ A counter-claim against a landlord for his use of a 
 part of the premises has, however, been held to prevent a forfeiture of 
 the lease for non-payment of rent in advance as stipulated in the 
 lease.-^^ An agreement that the cost of repairs should be deducted 
 from the rent operates as payment and prevents a forfeiture. But an 
 unsettled account, which would be good as a set-off against the claim 
 for rent, does not make an entry unlawful, because such an account 
 would not support a plea of payment in an action for the rent. In 
 covenanting to pay rent according to the terms of a lease, the lessee 
 undertakes to pay it in money, but it is competent for the parties to 
 agree to receive and pay any part of it in any other way, and if a 
 lessee does service or furnishes labor or materials for the lessor, under 
 an agreement that the cost thereof should apply in payment of rent, 
 the service, when rendered, or the labor and materials, when fur- 
 nished, are at once payment of the rent pro tanto- If their value is 
 equal to the accrued rent when the lessor enters the leased premises, 
 his entry is unlawful, because the rent has been paid and there has been 
 no breach of covenant by the lessee. If, however, the lessee has an un- 
 settled account against the lessor for services rendered, labor and ma- 
 terials furnished, or goods sold, without any agreement that it should 
 be appplied in payment of the rent, the entry is not unlawful, because 
 such account would not support a plea of payment and satisfaction in 
 
 229 payior v. Brice, 7 Ind. App. 551, ^- Pearson v. Germond, 31 N. Y. 
 
 34 N. E. 833. S. 358, 83 Hun (N. Y.) 88; Peterson 
 
 ^'» Clator v. Otto, 38 W. Va. 89, 18 v. Krenger, 67 Minn. 449, 70 N. W. 
 
 S. E. 378. 567. 
 
 ^'Willis v. Branch, 94 N. Car. ^'Parsons v. Wright, 102 Iowa 
 
 142; Abrams v. Watson, 59 Ala. 473, 71 N. W. 351. 
 524.
 
 §§' 506-508] TERMINATION OF TENANCY. 588 
 
 an action for the rent, though it might be availed of by way of set-off, 
 or in proceedings in equity to prevent the lessor from entering and ex- 
 pelling the lessee.^^^ 
 
 § 506. Arizona. — Whenever any tenant shall neglect or refuse to 
 pay his rent when the same shall be due, and said rent shall be in ar- 
 rears and unpaid for five days thereafter, . . . the landlord shall 
 have the right by law to reenter and take possession of said leased 
 premises for non-payment of rent, and may, without any formal de- 
 mand or reentry, commence an action for the recovery of said prem- 
 ises.^^' 
 
 § 507. Arkansas. — Whenever a half-year's rent or more is in 
 arrear from a tenant, the landlord, if he has a subsisting right by 
 law to reenter for the non-payment of said rent, may bring an action 
 to recover the possession of the demised premises. The service of the 
 summons in such action shall be deemed and stand instead of a de- 
 mand of the rent in arrear, and of a reentry on the demised prem- 
 ises.^^^ A tender of rent due after notice of suit by landlord, but 
 before suit brought, is held sufficient to entitle a tenant to relief from 
 forfeiture, and the landlord could not then recover possession.^^^ A 
 reletting of the premises to a tenant after recovering a judgment for 
 possession against him in such a suit, is a satisfaction of the judgment, 
 and an execution on the judgment after the new lease will be en- 
 joined.^^^ 
 
 § 508. California. — A lessee is guilty of unlawful detainer if he 
 continues in possession of property after default in payment of rent 
 according to the terms of his lease, and after three days' notica in 
 writing requiring its payment or possession of the property. Failure 
 to perform covenants other than for the payment of rent has a similar 
 effect, and in cases where performance has become impossible, three 
 days' demand for performance is unnecessary.^^^ But even then notice 
 is necessary before the commencement of an action of forcible detainer. 
 Where the relation of landlord and tenant exists, and it is sought be- 
 fore the expiration of the period fixed in the lease to obtain the pos- 
 session of the demised premises for a failure to perform any of the 
 
 =^^ Fillebrown y. Hoar, 124 Mass. "'Geary v. Parker, 65 Ark. 521, 
 580. 47 S. W. 238, 53 S. W. 567. 
 
 ^ Civil Code 1901, § 2693. ^- Barney v. Cain, 37 Ark. 127. 
 
 '^ Dig. of St. 1894, §§ 4466, 4468. -^^ Code of Civil Procedure 1903, 
 
 § 1161.
 
 589 EFFECT OF NOX-PATMEXT OF EEXT. [§§ 509-512 
 
 covenants or conditions therein, a demand is always necessary before 
 an action in the nature of a summary proceeding under the code can 
 be invoked to dispossess the tenant. The only knowledge that the ten- 
 ant can have of his landlord's purpose to stand upon the strict terms 
 of the lease and to dispossess him for a failure to perform its cove- 
 nants is through actual notice of that fact by demand for possession. 
 The demand operates both as a notice of the landlord's election to in- 
 sist on a forfeiture of the lease and as requiring surrender of posses- 
 sion by the tenant.^*" 
 
 §509. Colorado. — It constitutes unlawful detention for a tenant 
 to hold over after any default in payment of rent pursuant to the 
 agreement under which he holds and after the service of three days' 
 written notice in the alternative, requiring the payment of rent or the 
 possession of the premises. No demand for rent on the day on which it 
 becomes due is necessary to work a forfeiture for non-payment of rent. 
 Holding over without permission, contrary to any other condition or 
 covenant of the lease, after three days' notice in writing, is also an 
 unlawful detainer.^*^ 
 
 § 510. ConnecticTit. — Whenever by the terms of a parol lease of 
 real estate rent is agreed to be paid at stated periods, and such rent 
 shall be and remain due and unpaid for a period of more than nine 
 days, such lease shall, at the option of the lessor and on notice to the 
 lessee, expire and terminate.^*^ The lessor is then entitled to resort to 
 the remedy of summary process to recover possession.-*^ 
 
 § 511. Florida. — It furnishes a cause for the removal of a tenant 
 that he holds over without permission after default in the payment of 
 rent pursuant to his lease and after three days' notice in writing re- 
 quiring the payment oi such rent or the possession of such premises 
 shall have been served on him. The service shall be by delivery of a 
 true copy, or, if the tenant is absent, by leaving a copy at his last and 
 usual place of residence.^** 
 
 § 512. Georgia. — If the tenant fails to pay the rent due at any 
 time, the landlord may reenter immediately and dispossess the ten- 
 
 ^"Schnittger v. Rose, 139 Cal. =" Gen. St. 1902, § 4044. 
 
 656, 73 Pac. 449. ^« Gen. St. 1902, § 1078. 
 
 =" Mills Ann. St. 1891, § 1973, par. =" Rev. St. 1892, § 1751. 
 4, 5.
 
 § 513] TERMINATION OF TENANCY. 590 
 
 ant.^*' In case a tenant fails to pay rent as it becomes due, and the 
 owner desires possession of the premises, such owner may demand pos- 
 session, and, if the tenant refuses to deliver it, make an oath of the 
 facts, which will entitle him to a warrant directing an officer to re- 
 move the tenant. The tenant may arrest proceedings by making oath 
 that no rent is due and giving bond with sureties to pay costs.^*® When- 
 ever the relation of landlord and tenant exists and rents are due and 
 unpaid, it has been declared that this statutory remedy applies. A 
 question as to the constitutionality of this act has been resolved in the 
 affirmative.^*^ 
 
 § 513. Illinois. — The landlord or his agent may, at any time after 
 rent is due, demand payment thereof, and notify the tenant in writing 
 that unless payment is made within a specified time mentioned in such 
 notice, not less than five days after the service thereof, the lease will be 
 terminated. If the tenant shall not within the time mentioned in such 
 notice pay the rent due, the landlord may consider the lease ended, 
 and sue for the possession under the statute in relation to forcible 
 entry and detainer, or maintain ejectment without further notice or 
 demand.^** The common-law rule that to create the forfeiture for 
 non-payment of rent a demand for payment must be* made upon the 
 premises or some part thereof is by necessary implication dispensed 
 with by the Illinois statutes. The former requirement for ten days' 
 notice has been changed, and only five days' notice is required if rent 
 is due and unpaid.^*^ Under the Illinois act of 1865, where the lessor 
 demanded his rent and, on failing to get it, gave the statutory ten 
 days' notice to quit, the tenant had ten days in which to pay the rents 
 and avert the forfeiture. A tender of the rent at the specified place 
 prior to the giving of the ten days' notice would have entitled the ten- 
 ant to continue in possession.^^*' According to the statutory provision, 
 payment or tender of the rent in arrears during the ten days after 
 notice is served prevented a forfeiture of the lease.^^^ On the other 
 
 -«Code 1895, § 3124. =" Chapman v. Kirby, 49 111. 211. 
 
 ="Code 1895, §§ 4813-4815. Tender. An offer to pay by means 
 
 '^" Huff V. Markham, 70 Ga. 284. of a check is a good tender even 
 
 ='*Rev. St. 1903, ch. 80, § 8. though the check is a few dollars 
 
 "' Rowland v. White, 48 111. App. too large, unless some objection is 
 
 236; "Woodward v. Cone, 73 111. 241; made to the check at the time it 
 
 Chadwick v. Parker, 44 111. 326; is offered. Mere inability to make 
 
 Burt v. French, 70 111. 254; Wil- change does not make the tender 
 
 liams V. Vanderbilt, 145 111. 238, 34 bad. Gradle v. Warner, 140 111. 
 
 N. E. 476. 123, 29 N. E. 1118. 
 
 =^ Fisher v. Smith, 48 111. 184.
 
 591 EFPECT OP NON-PAYMENT OF RENT. [§§ 514-516 
 
 hand, unqualified refusal of lessee to pay his rent, when followed by 
 notice to quit within ten days and no act of tenant signifying his will- 
 ingness to pay the rent, amounts to a forfeiture. ^^^ No demand is 
 necessary where the lease is for a definite term and the end of that 
 term has arrived. ^^^ 
 
 If a lessee fails to pay rent and taxes as he has covenanted to do, 
 and thereby creates a cause for forfeiture, the lessor may forfeit the 
 lease, and the holder of a lien on the leasehold estate must pay all 
 arrears of rent before he can acquire the rights of the lessee under the 
 lease.^^* 
 
 § 514. Indiana. — If a tenant refuse or neglect to pay rent when 
 due, ten days' notice to quit shall determine the lease, when not other- 
 wise provided therein or agreed to by the parties, unless such rent be 
 paid at the expiration of such ten days.^^^ This statutory mode of de- 
 termining a lease does not preclude a resort to a forfeiture according 
 to common-law methods, and in that case rent -must be demanded on 
 the premises just before sunset on the day when due.^^^ In the absence 
 of special agreement, rent under a tenancy from year to year is not 
 due till the end of the year ;-^^ but where there is an agreement for the 
 earlier payment of rent, a tenancy from year to year may be ter- 
 minated, like any other, by a failure to pay rent after ten days' 
 notice.^^^ The only proper and legal mode of serving a notice of this 
 kind is by delivering the notice to the tenant, or, if he cannot be found, 
 by delivering it to some person of proper age and discretion on the 
 premises. A demand made by reading a paper to the tenant is not a 
 demand made in writing. It is but an oral demand.^^^ 
 
 § 515. Iowa. — A summary remedy for forcible entry and detainer 
 is allowable for the non-payment of rent when due. But before action 
 can be brought on this ground, three days' notice to quit must be given 
 to the defendant in writing.-*'*' 
 
 § 516. Kansas. — If a tenant for a period of three months or longer 
 neglect to pay rent when due, ten days' notice in writing to quit shall 
 
 =" Fisher v. Smith, 48 111. 184. ==' Indianapolis Co. v. First Nat. 
 
 =»^Chadwick v. Parker, 44 111. 326. Bank, 134 Ind. 127, 33 N. E. 679; 
 
 =**Crandall v. Sorg, 99 111. App. Cowan v. Henika, 19 Ind. App. 40, 
 
 22; Jones on Liens, § 1273. 48 N. E. 809. 
 
 ="=« Burns' Ann. St. 1901, § 7092. ^^Leary v. Meier, 78 Ind. 893. 
 
 ^^Menkins v. Jenkins, 63 Ind. 415; ==^ Jenkins v. Jenkins, 63 Ind. 415. 
 
 Bacon v. Western &c. Co., 53 Ind. ^eo ^o^g 1897, §§ 4208, 4209. 
 229.
 
 § 517] TEEMINATIOX OF TEXANCT. 592 
 
 determine the lease, unless such rent be paid before the expiration of 
 said ten days. If a tenant for a period of less than three months shall 
 neglect or refuse to pay rent when due, five days' notice in writing to 
 quit shall determine the lease, unless such rent be paid before the ex- 
 piration of said five days.^^^ If the lease is in full force when the 
 notice is given, the tenant has ten full days thereafter in which to pay 
 the rent and to continue the lease in force. So, any action, prior to the 
 expiration of such period, instituting suit to recover possession is pre- 
 mature, and the suit cannot be sustained.^^^ Where a landlord al- 
 lowed his tenant to remain in possession for two years without paying 
 the agreed rent before serving a notice to quit on him, it was held that 
 the action of unlawful detainer was not barred by such possession.-^^ 
 
 §' 517. Massachusetts. — Upon the refusal or neglect to pay the 
 rent due according to the terms of a written lease, fourteen days' 
 notice to quit, given in writing by the landlord to the tenant, shall be 
 sufficient to determine the lease, unless the tenant, four days, at least, 
 before the return day of the writ, in an action brought by the landlord 
 to recover possession of the premises, pays or tenders to the landlord 
 or his attorney all rent then due, with interest thereon, and with all 
 costs of suit. In all cases of neglect or refusal to pay the rent due from 
 a tenant at will, fourteen days' notice to quit shall be sufficient to de- 
 termine the tenancy.^®* The object of these statutes is to give to a 
 landlord the benefit of the summary process for the recovery of pos- 
 session of his estate if his tenant under a written lease neglects to pay 
 the rent. They do not provide that the tenant's estate shall be abso- 
 lutely forfeited, either by a failure to pay rent or by the lapse of four- 
 teen days after a written notice to quit is given him. It is certain that 
 the forfeiture does not become absolute until the fourteen days have 
 run out. Until then the tenant has the right to pay or tender the rent 
 and reinstate himself in his rights. The process cannot be brought 
 until fourteen days' notice to quit has been given. Until then, the 
 forfeiture is at most conditional, and may be purged and saved by the 
 payment or tender of the rent due. It cannot be necessary that the 
 tenant should wait until such process is commenced before making his 
 tender. The words of the statute, unless the tenant "four days at least 
 before the return day of the writ" pays or tenders his rent, imply that 
 the tender may be made after notice to quit. According to the spirit 
 
 ="Gen. St. 1899, §§ 3722, 3723. ^''^Moran v. Moran, 54 Kan. 270, 
 
 ^- Douglass V. Parker, 32 Kan. 38 Pac. 268. 
 593, 5 Pac. 178. ^Rev. Laws 1902, ch. 129, §§ U, 
 
 12.
 
 593 EFFECT OF NON-PAYMENT OF RENT. [§§ 518, 519 
 
 and the letter of the statute, a tender by a tenant made within fourteen 
 days after a notice to quit is given him will save a forfeiture of his 
 estate. 
 
 In order to save the forfeiture, it is not necessary for the tenant to 
 tender the unpaid taxes, although the lessor has paid them to prevent 
 the sale of the estate for taxes. By the provisions of the statute, a for- 
 feiture is saved if the tenant pays or tenders the rent due, with inter- 
 est thereon, and all costs of suit. The parties did not contemplate that 
 the taxes were to be a part of the rent. The covenant to pay taxes is a 
 separate, independent covenant, and is put upon the same footing as 
 the covenant to repair. ^^^^ 
 
 A lessee at will is bound to pay his rent at the rent day without de- 
 mand; his failure to do so is a neglect to pay the rent due, and this 
 gives the lessor a right to terminate the tenancy at will by fourteen 
 days' notice, without any demand for rent on the day. The receipt of 
 the money due for rent after such notice given does not necessarily 
 operate as a waiver of that right if the landlord at the time of receiv- 
 ing such rent gives notice that he does not thereby intend to waive his 
 right to terminate the lease or revoke his notice.^*'^ 
 
 § 518. Michigan. — In all cases of neglect or refusal to pay rent on 
 a lease at will or otherwise, seven days' notice to quit, given in writing 
 by the landlord to the tenant, shall be sufficient to determine the 
 lease.^^^ After a tenancy has been terminated by the giving of notice, 
 and the landlord has obtained peaceable possession of the premises, he 
 is not liable to an action for damages unless more force is used than 
 is necessary to repel the effort of the tenant to regain possession. 
 Where there has not been a forcible entry, the statute does not forbid 
 retaining possession by force, unless the possession is unlawful and 
 against the rights of the person kept out.^"^ 
 
 § 519. Minnesota. — Wliere a landlord has a subsisting right to re- 
 enter for non-payment of rent, an action brought to recover the posses- 
 sion is equivalent to a demand of the rent and a reentry into possession. 
 For six months after the deciding of such action the lessee has the 
 privilege of redeeming the lease from the forfeiture by performing the 
 covenants or paying the rent with interest. ^''^ Where any person holds 
 
 ^= Hodgkins v. Price, 137 Mass. 13. =^'* Smith v. Detroit &c. Asso., 115 
 
 ^Kimball v. Rowland, 6 Gray Mich. 340, 73 N. W. 395. 
 
 (Mass.) 224. ^° Statutes 1894, § 5865. 
 ^'Comp. Laws 1897, § 9257. 
 
 Jones L. & T.— 38
 
 § 520] TEEMIifATION OF TENANCY. 594 
 
 lands contrary to the conditions or covenants in the lease, or after any 
 rent becomes due under the terms of the agreement, the landlord may 
 make complaint to a justice of the peace, as in the case of a forcible 
 detainer.^^" Where the action is for restitution on the ground of non- 
 payment of rent, no notice to quit is necessary.^'^ The statute gives 
 the right to restitution against a tenant holding over after default in 
 the payment of rent, whether the lease contains a reentry clause or not. 
 It is immaterial whether the lease gives a right of reentry or not for 
 the non-payment of rent when the action is not brought under the 
 provisions of § 5865, but under § 6118,- which gives the action for 
 restitution in such cases independent of any contract for reentry."^ 
 The section making the bringing of an action equivalent to demand 
 and entry applies only where the right of entry for breach of condi- 
 tion is expressly reserved. The other section has gone further than 
 the common law, and has given the landlord the right, in any case 
 where the tenant holds over "after any rent becomes due, according 
 to the terms of such lease or agreement," to bring an action to recover 
 possession of the premises. But while extending this remedy to the 
 landlord, it nowhere provides that the commencement of such an 
 action shall be equivalent to an entry or work a forfeiture of the lease. 
 On the contrary, the provisions of the statute are wholly inconsistent 
 with any such theory, and all point to the manifest legislative intent 
 that, for the unlawful withholding of the possession during the pend- 
 ency of the action, the lessor's sole remedy is the rental value of the 
 premises.2" If the tenant holds over after the rent becomes due by the 
 terms of the lease, the right of action is complete. Nothing more and 
 no other thing is required by the statute.^'^* Therefore, in proceedings- 
 under this statute by a landlord against his tenant to recover possession 
 of premises for non-payment of rent, no previous demand of the rent 
 is required.^'^^ 
 
 §520. Mississippi. — A tenant at will or at sufferance or for a 
 term of years may be removed from the premises by any justice of the 
 peace after default in the payment of rent pursuant to the agreement 
 under which such premises are held, and when satisfaction of the rent 
 
 ^"Statutes 1894, § 6118. "' Woodcock v. Carlson, 41 Minn. 
 
 271 seeger v. Smith, 74 Minn. 279, 542, 43 N. W. 479. 
 
 77 N. W. 3; Radley v. O'Leary, 36 =" Caley v. Rogers, 72 Minn. 100, 
 
 Minn. 173, 30 N. W. 457. 75 N. W. 114. 
 
 ="= Seeger v. Smith, 74 Minn. 279, "' Spooner v. French, 22 Minn. 37. 
 77 N. W. 3; Suchaneck v. Smith, 45 
 Minn. 26, 47 N. W. 397.
 
 595 EFFECT OF NON-PATMEXT OF RENT. [§§ 521, 523 
 
 cannot be obtained by distress of goods, and three days' notice in writ- 
 ing, requiring the payment of the rent or the possession of the prem- 
 ises, has been, served on the tenant.^^^ 
 
 §• 521. Missouri. — Whenever a half-year's rent or more is in arrear 
 from a tenant, the landlord, if he has a subsisting right by law to re- 
 enter for the non-payment of such rent, may bring an action to recover 
 the possession of the demised premises. The service of the summons 
 in such action shall be deemed and stand instead of a demand of the 
 rent in arrear and of a reentry on the demised premises.^" If default 
 is made in the payment of rent at the times agreed upon by the parties, 
 it is lawful for the landlord to dispossess the tenant and all sub-tenants 
 in the form of action provided by law.^^® Any demand of rent shall 
 be good when made at any time after the rent demanded is due accord- 
 ing to the terms of the agreement, whether by written lease or other- 
 wise.^^^ Furthennore, according to Missouri law, a lessee may pay his 
 rent and thus avoid a forfeiture at any time before the lessor has taken 
 the proper proceedings to declare the lease void, even though such pay- 
 ment is subsequent to the period when non-payment of rent was to 
 have forfeited the lease. ^^^ • 
 
 §522. Nebraska.— Section [6544] ^^i 1020 of the civil code pro- 
 vides that proceedings under the article for the forcible detention of 
 real estate may be had in all cases against tenants holding over their 
 terms. Section [6545] 1021 provides in effect that the failure to pay 
 rent shall terminate a tenancy, and that a tenant shall be deemed to 
 be holding over his term whenever he has failed, neglected or refused 
 to pay the rent or any part thereof when the same was due, etc. By 
 section [6546] 1022 it is provided that "It shall be the duty of the 
 party desiring to commence an action under this chapter to notify the 
 adverse party to leave the premises for the possession of which the ac- 
 tion is about to be brought, which notice shall be served at least three 
 days before commencing the action,'' etc. No other notice is required. 
 The intention of the legislature was that the fact of failure or refusal 
 to pay rent should bring the tenant within the provisions of section 
 1020, and that in that case but one notice was necessary — ^the notice 
 to quit. The question as to the non-payment of rent is one of fact for 
 
 ^'^ Ann. Code 1892, § 2547. '*" Lewis v. City of St. Louis, 69 
 
 ^Rev. St. 1899, §§ 4116, 4118. Mo. 595. 
 
 "*Rev. St. 1899, § 4130. ==-'' Numerals in brackets refer to 
 
 '^Rev. St. 1899, § 4136. the section numbers in Comp. St. 
 
 1899.
 
 §§ 523, 524] TEEMINATION OF TEXAXCT. 596 
 
 the determination of the jury.^^^ It is quite immaterial that the lease 
 contains no stipulation of forfeiture or right of the landlord to reenter 
 in case of non-pajonent of the rent reserved. Contracts of lease must 
 be construed with reference to the provisions of the statute.^^^ 
 
 § 523. New Hampshire. — If a tenant at will neglects or refuses to 
 pay the rent due and in arrear, upon demand, seven days' notice to 
 quit shall be sufficient to terminate the tenancy. If a lessee violates 
 the condition of a written lease, notice to quit at the end of seven days 
 shall be equivalent to an entry for condition broken.^** This seven 
 days' notice to quit need not assign a reason for terminating the rela- 
 tion of landlord and tenant. The statute, in defining the cases in which 
 seven days' notice to quit shall authorize the landlord to proceed in the 
 manner which it points out, does not require that the notice should 
 indicate to the tenant upon which particular one the landlord proposes 
 to found his claim to possession.-^^ However, to take advantage of the 
 seven days' notice to quit provided for by statute in case of a right of 
 reentry for breach of a covenant to pay rent, a demand for rent must 
 be made, and it must be for the precise amount due. The common law 
 on the subject of tenancies has been adopted in New Hampshire, ex- 
 cept as it has been modified by statute. Under it the demand must be 
 of the precise amount of rent due, and this requirement has not been 
 modified or changed by the statute. ^^^ 
 
 § 524. New Jersey. — Any tenant may be removed by a Justice of 
 the peace in the manner elsewhere prescribed by statute, in case he 
 holds over after any default in the payment of rent pursuant to the 
 agreement under which he holds, when satisfaction for such rent can- 
 not be obtained by distress, and a demand of such rent shall have been 
 made, by three days' notice in writing, requiring the payment of such 
 rent or the possession of the premises.^ ^^ Any one of a number of 
 joint tenants or tenants in common, named as landlords in a lease, is 
 authorized to make demand in writing for the payment of rent, and 
 sign and give the three days' notice required by the statute.-®^ The 
 
 ^''^ Hendrickson v. Beeson, 21 Neb. =*« Nowell v. Wentworth, 58 N. H. 
 
 61; Pollock v. Whipple, 33 Neb. 752, 319; Jones v. Reed, 15 N. H. 68; 
 
 51 N. W. 130. McQuesten v. Morgan, 34 N. H. 400; 
 
 ''^ Pollock v. Whipple, 33 Neb. 752, Coon v. Brickett, 2 N. H. 163. 
 
 51 N. W. 130. ="Gen. St. 1895, p. 1922, § 30. 
 
 =**Pub. St. ch. 246, §§ 3, 4. ='*^ Mullone v. Klein, 55 N. J. L. 
 
 ^ Russell V. Allard, 18 N. H. 222. 479, 27 Atl. 902.
 
 597 EFFECT OF XOX-PAYMEXT OF EEXT. [§ 525 
 
 termination of a lease by a landlord's election on the breach of a condi- 
 tion is not an expiration of the term under this section.^®" 
 
 § 525. New York. — Wlien six months rent or more is in arrear 
 upon a lease of real property, and the lessor has a subsisting right by 
 law to reenter for the failure to pay the rent, he may maintain an ac- 
 tion to recover the property granted or demised, without any demand 
 of the rent in arrear, or reentry on the property.^^*^ Where a right of 
 reentry is reserved to a lessor in default of a sufficiency of goods and 
 chattels whereon to distrain for the rent due, the reentry may be made, 
 or an action to recover the property demised may be maintained, by 
 the lessor at any time after default in the payment of the rent, pro- 
 vided the plaintiff, at least fifteen days before the action is commenced, 
 serves a written notice of his intention to reenter.^^^ The rights of a 
 landlord to recover possession under the two sections of the code thus 
 briefly summarized overlap, the right to avail of one not excluding 
 a resort to the other. Where a right of reentry is reserved to a lessor 
 in default of a sufficiency of goods and chattels whereon to distrain 
 for the satisfaction of any rent due, such entry may be made at any 
 time after default in the payment of such rent, provided fifteen days' 
 notice be given. Obviously, this does not describe the cases in which 
 the right of reentry is reserved and given on default of payment with- 
 out any regard to the question whether there are goods and chattels on 
 the premises.^^- It is evident that unless a lease provides a right 
 of reentry for some reason other than a default of sufficient distress, 
 ejectment cannot be maintained until. proper notice has been served. 
 But it may appear upon an examination of a lease that the right to re- 
 enter does not depend solely upon this ground, but that if any of the 
 covenants or conditions in the lease are broken, then a right of reentry 
 is conferred upon the lessor and his successor in title. In other words, 
 if a tenant covenants to pay the rent and agrees that for breach of this 
 covenant the landlord may reenter, the stipulation for a right to re- 
 enter on this ground is entirely independent of a stipulation giving 
 that right in case of a failure of distress. The code provisions take ef- 
 fect in the alternative, so that if six months' rent was in arrear the 
 landlord would have a subsisting right by law to reenter, which would 
 authorize a recovery of the property, under the section first stated, 
 without any demand. ^^^ 
 
 -*° Wakeman v. Johnson, 3 N. J. 152 ; Van Rensselaer v. Dennison, 35 
 
 L. J. 84. N. Y. 393; Cruger v. McLaury, 41 
 
 ^^"Code Civ. Pro., § 1504. N. Y. 219. 
 
 ="Code Civ. Pro., § 1505. ='3 Martin v. Rector, 118 N. Y. 476, 
 
 ="2 Hosford V. Ballard, 39 N. Y. 147, 23 N. E. 893.
 
 §§ 526-530] TERMIXATIOX OF TEXANCY. 598 
 
 § 626. North Carolina. — Whenever any half-year's rent or more 
 shall be in arrear and the landlord has a subsisting right of reentry for 
 the non-payment of such rent, he may bring an action for the recovery 
 of the demised premises, and the service of the summons therein shall 
 be deemed equivalent to a demand of the rent in arrear and a reentry 
 upon the demised premises.^^* A tenant may be removed from the 
 premises occupied by him in the form of action prescribed by statute 
 in case he has done or omitted any act by which, according to the stipu- 
 lations of the lease, his estate has ceased.^^^ If the tenant before judg- 
 ment shall pay or tender the rent due and the costs of the action, all 
 further proceeding in such action shall cease.^®^ 
 
 The notice by a lessor to terminate a lease for non-payment of rent, 
 and of his intention to take possession within thirty days, is not an 
 offer which may be accepted by the tenant and thus made irrevocable, 
 but the lessor may withdraw it and sue for the rent.^^^ 
 
 § 527. North Dakota. — Whenever the right of reentry is given to a 
 grantor or lessor in any grant or lease, or otherwise, such reentry may 
 be made at any time after the right has accrued, upon three days' 
 previous written notice of intention to reenter, served on the tenant 
 or some person of discretion residing on the premises, or, if no such 
 person can be found, posted on the premises. An action for the pos- 
 session of real property leased with a right of reentry may be main- 
 tained at any time after the right to reenter has accrued, without any 
 notice. ^^^ 
 
 § 528. Oregon. — Where a landlord has a subsisting right to re- 
 enter for a tenant's failure to pay rent, he may bring an action to re- 
 cover possession of the property and such action is equivalent to a de- 
 mand of the rent, and a reentry upon the property. Until judgment 
 the tenant can avoid the forfeiture by paying rent with interest and 
 costs and performing other agreements. ^^^ 
 
 § 529. Oklahoma. — In this territory the statutory provisions are 
 similar to those of Kansas. 
 
 § 530. Pennsylvania. — Por a lessee's refusal to pay rent accord- 
 ing to the terms of the contract and in the absence of a sufficient dis- 
 
 i^^Code 1883, § 1745. house Co. v. Duke, 116 N. Car. 202, 
 
 »= Code 1883, § 1766. 21 S. E. 178. 
 
 »«Code 1883, § 1773. ^»Code 1895, §§ 3347, 3350. 
 
 **^Goldsboro Storage and Ware- ^sa^jm Codes and Statutes 1902, 
 
 § 338. 
 
 I
 
 599 EFFECT OF NON-PAYMENT OF RENT. [§§ 531-533 
 
 tress upon the premises, the lessor may notify the lessee to quit after 
 fifteen days in summer, or after thirty days in winter. For failure 
 to leave at the end of the period specified, complaint may be made to 
 an alderman or justice. Prior to the execution of a writ of possession, 
 the tenant may redeem by paying the rent in arrear and costs.^*'*' The 
 statutory notice to quit must be accompanied by a demand for the 
 amount of the rent claimed and must be served on a party residing on 
 the premises.^"^ The justice, to whom complaint is made, can only 
 acquire jurisdiction by waiting the statutory period for notice, and 
 cannot acquire it under a clause in the lease substituting five days' 
 notice for that required by the statute.^"^ 
 
 §' 531. Rhode Island. — If in any case of letting whether by writing 
 or parol, the stipulated rent, or any part of the same, be due and in 
 arrear for fifteen days, whether demanded or not, the landlord or re- 
 versioner may reenter and repossess himself of the lands, buildings or 
 parts of buildings let, or recover possession of the same from the ten- 
 ant, or any person holding under him discharged from the lease.^''^ 
 When the landlord avails himself of this provision in the statute to 
 get rid of a defaulting tenant, no notice to quit is necessary even 
 though the holding be a tenancy at sufferance which would ordinarily 
 require notice to quit equal to half the length of periods on which 
 rent is payable.^"* 
 
 § 532. South Carolina. — "V\liere a tenant in arrears for a full year 
 shall desert and leave uncultivated the demised premises, the land- 
 lord may apply to magistrates to post a notice in writing on the prem- 
 ises, stating what day (at a distance of fourteen days at least) they 
 will return to make a second view thereof. Unless some person ap- 
 pears at that day in behalf of the tenant and pays the rent in arrear, 
 the magistrates may put the landlord in possession and the lease will 
 be thenceforth void.^"^ 
 
 § 533. Vermont. — In actions of ejectment for non-payment of rent, 
 the plaintiff shall not be required to prove a demand of the rent in 
 arrear, or a stipulation for reentry on non-payment of rent, or a re- 
 
 ^^o Brightly's Purd. Dig., p. 1167, (Pa.) 304; Hopkins v. McClelland, 
 § 25. 8 Phila. (Pa.) 302. 
 
 "^ Clark V. Everly, 8 W. & S. (Pa.) =»' Gen. Laws 1896, ch. 269, § 7. 
 
 226. =°* Providence Co. Sav. Bank v. 
 
 ^"^ McCloud V. Jaggers, 3 Phila. Phalen, 12 R. I. 495. 
 
 '"^ Civil Code 1902, §§ 2418, 2419.
 
 g' 534] tee:mixatiox of texaxcy. 600 
 
 entry on the premises; but shall recover judgment as if the rent in 
 arrear had been demanded and reentry made. Until final Judgment 
 the defendant in such action may pay into court the rent in arrear 
 with interest and the costs of suit and have the action dismissed.^"^ 
 An action would lie under this statute without any demand for rent 
 although the lease in terms gives the right of entry only after demand 
 of the rent and default in payment thereof for twenty-eight days.^" 
 But the right of redemption allowed by the statute until a final judg- 
 ment in the suit cannot be cut off by a conveyance in fee by the lessor 
 after the tenant's default. At least this cannot be done unless the 
 lessor complies with the common-law requirements as to demand and 
 reentry.^"® 
 
 § 534. Virginia. — A provision in a lease that a lessor may re- 
 enter for non-payment of rent or for breach of covenants shall have 
 the effect of an agreement for a general right of reentry for breach of 
 any covenants in the lease, authorizing the lessor to repossess and 
 enjoy as of his former estate.^*''' This statute was not designed to 
 alter the rules of the common law in respect to the forfeiture of es- 
 tates for non-payment of rent, but to authorize a concise and abbrevi- 
 ated form of leases and other conveyances. ^^'^ A person having a 
 . right of reentry for non-pa3'ment of rent or breach of other condition, 
 may serve a declaration in ejectment on the tenant in possession which 
 service shall be in lieu of a demand or reentry. On proof of the right 
 to reenter and that there was no sufficient distress upon the premises, 
 he shall recover judgment and have execution for such lands.^^^ By 
 this statute the common-law formalities of a demand are dispensed 
 with, by providing that an action may be brought as a substitute for 
 such demand in cases where sufficient distress can be found upon the 
 premises. This statute applies, however, only to the action of eject- 
 ment, service of a declaration in which it provides shall be in lieu of 
 a demand and reentry, and then further provides that upon proof to 
 the court, by affidavit in case of judgment by default, or upon proof 
 
 '"« Statutes 1894, § 1499. to pay rent, even though at the time 
 
 =»' Jamaica v. Hart, 52 Vt. 549; of the notice to lessee to quit he 
 
 Maidstone v. Stevens, 7 Vt. 487. had paid all the rent and was un- 
 
 =°«Willard v. Benton, 57 Vt. 286. der no obligation to do so. Patchin 
 
 Notice to a lessee to quit premises v. Dickerman, 31 Vt. 666. 
 
 for non-payment of rent, acted upon ^"' Code 1904, § 2457. 
 
 by the lessee by quitting and by the ''" Johnston v. Hargrove, 81 Va. 
 
 lessor by taking possession consti- 118. 
 
 tutes a surrender which will release '" Code 1904, § 2796. 
 
 the lessee from all further liability
 
 601 EFFECT OF XOX-PATMEXT OF RENT. [§§ 535, 536 
 
 on the trial that the rent claimed was due, and no sufficient distress 
 ■was upon the premises . . . and that the plaintifE had power 
 thereupon to reenter, he shall recover judgment. When the proceed- 
 ings is not an action of ejectment, this statute may be laid out of 
 view. In that case, if it appears that no demand for the rent has 
 been made by the plaintiff, the unavoidable conclusion is that such an 
 action is not maintainable on the principles of the common law, 
 which requires a demand for rent to work a forfeiture.^^^ For twelve 
 months after execution executed, the tenant has a right to redeem 
 from the forfeiture by payment of the rent in arrear with interest 
 and costs.^^^ 
 
 § 535. West Virginia. — If any tenant leaves his rent in arrear and 
 unpaid and deserts the premises without sufficient goods subject to 
 distress to satisfy the rent, the lessor may post a notice requiring the 
 tenant to pay the rent within one month. If rent is not paid within 
 that time, the lessor becomes entitled to possession of the premises, 
 and may enter thereon.^^* Any person having a right of reentry by 
 reason of rent being in arrear or by reason of the breach of any cove- 
 nant or condition, may serve a declaration in ejectment on the tenant 
 which service shall be in lieu of a demand and reentry. On proof 
 that the rent claimed was due, and no sufficient distress was upon the 
 premises, or that the covenant or condition was broken before the 
 service of the declaration and that the plaintiff had power thereupon 
 to reenter, he shall recover judgment, and have execution for such 
 lands.^^^ This section has been construed to mean that in an action 
 of ejectment to recover premises by reason of forfeiture of a lease, 
 no reentry is necessary; but that in an action of unlawful entry and 
 detainer a different rule prevails for the reason that that action is not 
 covered by the statute. At common law it is necessary for a party 
 to enter upon an estate in order to work a forfeiture. It cannot be 
 effected by bringing an action for the recovery of possession.^^*^ For 
 a year after execution executed in the ejectment suit, the tenant may 
 redeem by paying all arrears of rent with interest and the costs of 
 suit."^ 
 
 § 536. Wisconsin. — In all cases of neglect or refusal to pay the 
 rent due on a lease at will fourteen days' notice to remove, given by 
 
 *" Johnston v. Hargrove, 81 Va. =>= Code 1899, ch. 93, § 16. 
 
 118; citing Doe v. Wandlass, 7 Term =>'" Bowyer v. Seymour, 13 W. Va. 
 
 R. 113, 117. 12, 25; Martin v. Ohio River R. Co., 
 
 "'Code 1904, § 2797. 37 W. Va. 349, 16 S. E. 589. 
 
 ^"Code 1899, ch. 93, § 6. «"Code 1899, ch. 93, § 17.
 
 §§537, 538] TEEMINATIOX OF TENANCY. 603 
 
 the landlord shall be sufficient to determine the lease. At the expira- 
 tion of the time required after the service of such a notice, the land- 
 lord may reenter, or maintain an action for the recovery of posses- 
 sion.^^^ 
 
 § 537. Wyoming. — After a tenant's failure to pay rent for three 
 days after it becomes due, a landlord is entitled to commence proceed- 
 ings under the Forcible Entry and Detainer Act. The landlord must 
 notify the tenant to leave the premises, for the possession of which the 
 action is about to be brought, and this notice must be served at least 
 three days before the bringing of the action. The pendency of this 
 action is not a bar to an action of ejectment.^ ^^ 
 
 IV. Surrender. 
 
 § 538. "A surrender is a yielding up of an estate for life or 
 years, to him who hath the immediate estate in reversion or re- 
 mainder, wherein the estate for life or years, may drown by mutual 
 agreement."^^° Even according to the old technical law any form of 
 words whereby the intent and agreement of the parties appeared, was 
 sufficient to work a surrender; and the law directed the operation of 
 the words accordingly without the precise or formal mention of the 
 word surrender in the conveyance. Before the statute of frauds, a 
 term for years, whether by deed or parol, might have been surren- 
 dered entirely by parol.^-^ But now by the statute of frauds and per- 
 juries, it is provided that no leases, estates or interests, either of free- 
 hold or terms for years shall be surrendered, unless it be by deed, or 
 note in writing signed by the party who makes such surrender or 
 some other lawfully authorized thereunto, or by an act and operation 
 of law; so that surrenders in law, or implied surrenders, remain as 
 they did at common law, if the lease which is to draw on such sur- 
 render, be in writing pursuant to that statute.^-^ Therefore a mere 
 agreement to surrender a lease is inoperative unless by instrument in 
 
 5i» Statutes 1898, §§ 2183, 2184. '=^ Gwyn v. Wellborn, 1 Dev. & B. 
 
 '"Rev, St. 1899, §§ 4486, 4487, (N. Car.) 313, 318. In 1815 North 
 
 4499. Carolina had no statute of frauds 
 
 '-" Bacon's Abr. Leases and Terms and hence such a parol surrender 
 
 for Years, S; 7 Inst. 337b; Wei- was good at that time. 
 
 come V. Hess, 90 Cal. 507, 27 Pac. ^-- Bacon's Abr., tit. Leases and 
 
 369; Dayton v. Craik, 26 Minn. 133, Terms for Years, S; Welcome v. 
 
 1 N. W. 813; Gwyn v. Wellborn, 1 Hess, 90 Cal. 507, 27 Pac. 369; Kittle 
 
 Dev. & B. (N. Car.) 313. v. St. John, 7 Neb. 73.
 
 603 SURRENDER. [§ 538 
 
 writing based on sufficient consideration or accompanied by the act 
 of transferring possession.^^s ^ license to surrender where there is no 
 consideration given for such permission may be revoked by the land- 
 lord at any time before it is abted upon.^-* However, a written agree- 
 ment by a tenant to surrender in consideration of the payment of a 
 certain sum is valid and after the tenant has performed his part of the 
 agreement he can compel the payment of the money .^^^ Express sur- 
 renders, although executory, are of course valid when witnessed by an 
 instrument which complies with the requirements of the statute of 
 frauds. Thus in one case a leased coal mine was injured by fire and 
 the lessee was unable to continue operations. He executed a written 
 surrender but continued in possession under a parol agreement until 
 a new tenant could be found. After the written surrender of the lease 
 it was in law if not in equity cancelled; and all the lessee's legal 
 rights were terminated. Any parol agreement regarding a new lease 
 would be void by the statute of frauds.^^^ Even though a lease be 
 under seal, it may be changed or abrogated entirely by a subsequent 
 writing not under seal or by a surrender by operation of law.^^^ It 
 results from the doctrine of surrender by operation of law that an oral 
 agreement for a surrender, acted on by a transfer of possession is valid 
 to put an end to a leasehold estate in spite of the requirements of the 
 statute of frauds; for instance where the landlord and tenant have, 
 by mutual agreement, consented that the term shall end, and the 
 possession is changed in consequence, whether the landlord re- 
 enters by himself or by a new tenant, that constitutes a surrender by 
 operation of law.^^^ The rule of law, as settled by the cases, has been 
 declared to be that any acts which are equivalent to an agreement on 
 the part of a tenant to abandon and on the part of the landlord to re- 
 sume possession of demised premises amount to a surrender by opera- 
 tion of law.^^® It necessarily follows that where, by an agreement be- 
 tween the lessor and lessee, the lessee abandons his possession and the 
 lessor resumes possession of the premises, there is a surrender by oper- 
 ation of law.^^*' 
 
 ^'^ National &c. Asso. v. Brewer, 41 ^-^ Talbot v. Whipple, 14 Allen 
 
 111. App. 223. (Mass.) 177; Grimman v. Legge. 8 
 
 '-^ Dunning v. Mauzy, 49 111. 368. B. & C. 324, 2 Man. & R. 436; Dodd 
 
 '='Bogert v. Dean, 1 Daly (N. Y.) v. Acklom, 6 M. & G. 672, 46 E. C. 
 
 259. L. 672, 7 Scott N. R. 415; Nickells 
 
 ^"Stewart v. Mumford, 91 111. 58. v. Atherstone, 10 A. & E. (N. S.) 
 
 '"Prior v. Kiso, 81 Mo. 241. 944, 59 E. C. L. 944. 
 
 '=^Phene v. Popplewell, 12 C. B. ''^"Amory v. KannofEsky, 117 
 
 (N. S.) 334, 340, 104 E. C. L. 334. Mass. 351.
 
 § 539] TERMINATION OF TENANCY. 604 
 
 Although the words of the statute he general, making no exception 
 in favor of the parol surrender of short term leases, it seems that an 
 estate which could be created by parol could also be surrendered in the 
 same manner. The mere possibility of creating the estate without a 
 writing is all that is necessary, and it does not affect the validity of the 
 parol surrender that the estate was in fact granted by a written instru- 
 ment.^^^ 
 
 In one case it was contended that a recital in the second lease of a 
 surrender of the first was a note in writing within the statute of 
 frauds ; but the court were clearly of opinion that the fact of a previous 
 surrender must be specially found, which fact the recital by no means 
 imported.^^^ Since this statute, a lease for years cannot be surrendered 
 by cancelling the indenture without writing, because the intent of the 
 statute was to take away the manner they formerly had of transferring 
 interests in land by signs, symbols and words only.^^^ 
 
 The circumstance that a lease provides a special mode for ending 
 the term, as by giving notice in writing three months previously, does 
 not prevent the parties from effecting a surrender by operation of law 
 just as if no agreement of such sort existed.^^* 
 
 § 539. A surrender may be effected by express words or it may be 
 implied from the conduct of the parties.^^^ The term "surrender by 
 operation of law" is properly applied to cases where the owner of a 
 particular estate has been a party to some act, the validity of which 
 he is by law afterwards estopped from disputing and which would not 
 be valid if his particular estate continued to exist. Such surrender is 
 the act of the law, and takes place independently of, and even in spite 
 of, the intentions of the parties. The acts in pais, which bind parties 
 by way of estoppel, are acts of notoriety, not less formal and solemn 
 than the execution of a deed ; as, for instance, livery, entry, acceptance 
 of an estate, and the like.^^** The lessee cannot surrender premises 
 leased to him before the expiration of the term, so as to absolve himself 
 from paying rent without the consent of the lessor, and the abandon- 
 ment of the premises with notice will not exonerate the lessee from 
 
 ^'^Kiester v. Miller, 25 Pa. St. ='* Hutcheson v. Jones, 79 Mo. 
 
 481; McKinney v. Reader, 7 Watts 496. 
 
 (Pa.) 123; Greider's Appeal, 5 Pa. ^'^^ Dayton v. Craik, 26 Minn. 133, 
 
 St. 422. 1 N. W. 813; Welcome v. Hess, 90 
 
 ^'^Roe V. Archbishop of York, 6 Cal. 507, 27 Pac. 369. 
 
 East 86, 101. ='=''Lyon v. Reed, 13 M. & W. 285; 
 
 ''' Bacon's Abr., tit. Leases and Stern v. Thayer, 56 Minn. 93, 67 N. 
 
 Terms for Years, S. W. 329; Smith v. Pendergast, 26 
 
 Minn. 318, 3 N. W. 978.
 
 605 SURRENDER. [§ 540 
 
 paying rent unless the lessor assents.^" A surrender cannot be effectea 
 by the act of only one party; the concurrence, in some way, of both 
 lessor and lessee is necessary in order to accomplish a surrender. 
 Hence, whatever the lessee may have done, if it is undisputed that the 
 lessor refused to accept the surrender, the estate is not ended.^^^ Where 
 a lessee who is bound by a valid lease refuses to occupy and abandons 
 the premises, he does not thereby put any duty upon the lessor to 
 reduce damages by letting the premises to another tenant,^^'' The 
 landlord is not under obligation to relet them, but may suffer them to 
 remain vacant and recover the entire rent for the balance of the term 
 from the lessee.^*" 
 
 An entire abandonment of the demised premises by a tenant exposing 
 them to risk of loss gives the lessor a right to declare the lease at an 
 end, and the lessee cannot return and claim to continue under the 
 lease.^*^ But the mere failure to reside on premises, where some acts 
 of repairing were done, and there was a sufficient reason for the 
 lessee's not planting crops, has been held not to amount to such an 
 abandonment of a leased farm as to entitle the lessor to consider the 
 term at an end.^*^ 
 
 § 540. Executed agfreement. — A parol license to quit will not of 
 itself operate as a surrender of the tenant's interest.^*^ But where the 
 tenant gives up possession in pursuance of such a license, and the 
 landlord accepts it, the license, coupled with the fact of the change of 
 possession, operates as a surrender by act and operation of law, and 
 the landlord cannot recover any rent which becomes due after his ac- 
 ceptance of the possession.^** It is well settled American law that an 
 
 ^"Stobie v. Dills, 62 111. 432; Ab- Aberdeen Coal &c. Co. v. Evansville, 
 
 erdeen Coal &c. Co. v. Evansville, 14 Ind. App. 621, 43 N. E. 316. 
 
 14 Ind. App. 621, 43 N. E. 316. Con- '" Merrill v. Willis, 51 Neb. 162, 
 
 ditional agreement. Where a land- 72 N. W. 734. 
 
 lord agrees to release his tenant ^"Worrall v. Wilson, 101 Iowa 
 
 from liability for rent for the bal- 475, 70 N. W. 619. 
 
 ance of the term, provided another ^^ Hough v. Brown, 104 Mich. 109, 
 
 tenant is obtained in his stead, there 62 N. W. 143. 
 
 is no surrender when no other ten- ^*^ National &c. Asso. v. Brewer, 
 
 ant is obtained to take the premises. 41 111. App. 223; Dunning v. Mauzy, 
 
 Churchill v. Gronewig, 81 Iowa 449, 49 111. 368. 
 
 46 N. W. 1063. =" Grimman v. Legge, 8 B. & C. 
 
 '^ Lewis V. Fish, 40 111. App. 372; 324, per Bayley, J.; Whitehead v. 
 
 Jones V. Rushmore, 67 N. J. L. 157, Clifford, 5 Taunt. 518; Brown v. 
 
 50 Atl. 587; Meeker v. Spalsbury, Burtinshaw, 7 D. & R. 603; Walls 
 
 66 N. J. L. 60, 48 Atl. 1026. v. Atcheson, 11 Moore 379; Phene 
 
 '''Becar v. Flues, 64 N. Y. 518; v. Popplewell, 12 C. B. (N. S.) 334,
 
 § 540] TEEMINATIOX OF TENANCY. 606 
 
 agreement for the tenant to abandon possession and for the landlord to 
 resume his occupancy, when acted upon by the parties, amounts in law 
 to a surrender of the term.^^^ As long as such an agreement is execu- 
 tory, the landlord's offer to accept a surrender may be revoked and 
 the tenant would continue bound for the full term.^*^ Where a land- 
 lord agrees to a surrender of the premises by his lessee and to accept 
 another tenant in his place, and the new tenant goes into possession, 
 those facts constitute a transfer of possession to the landlord and 
 hence a surrender by operation of law.^*'^ Thus the acceptance of keys 
 by a landlord, who at once moved into the house and advertised it for 
 sale, constituted a surrender by operation of law.^*^ Upon a written 
 assignment of a lease, the original lessor and lessee entered into a 
 parol agreement to the effect that the lessor would discharge the 
 lessee from all further liability and look only to the assignee. Acting 
 upon this agreement, the landlord recognized the assignee as tenant 
 and accepted rent from him. The admission of such evidence was not 
 objectionable as varying a written instrument by parol, for this was 
 separate and distinct from the agreement in writing and constituted 
 a surrender by operation of law.^*** Moreover, an agreement between 
 the landlord and a tenant in possession for the sale of the premises 
 has been held to amount to a surrender of an existing lease. Between 
 the time when the agreement was made and the time when it was to be 
 executed the landlord must be deemed to be in possession.^^'' 
 
 A parol agreement to release, followed by a delivery of keys to 
 lessor, putting up "To Let" signs by him and attempts to lease to third 
 parties, amounts to a surrender by operation of law.^^^ But the parol 
 
 104 E. C. L. 334. See also, Hessel- '*" Dunning v. Mauzy, 49 111. 368. 
 
 tine V. Seavey, 16 Me. 212; Hall v. =" Donahoe v. Rich, 2 Ind. App. 
 
 Burgess, 5 B. & C. 332. 540, 28 N. E. 1001. 
 
 ^" Hanham v. Sherman, 114 Mass. ^*^ Kiernan v. Germain, 61 Miss. 
 
 19; Carson v. Arvantes, 10 Colo. 498. 
 
 App. 382, 50 Pac. 1080; Dills v. ^"Levering v. Langley, 8 Minn. 
 
 Stobie, 81 111. 202; Evans v. Mc- 107. 
 
 Kanna, 89 Iowa 362, 56 N. W. 527; ^^''Denison v. Wertz, 7 S. & R. 
 
 Churchill v. Lammers, 60 Mo. App. (Pa.) 372. A condition of a lease 
 
 244; Buffalo Co. Nat. Bank v. Han- that the surrender thereto should 
 
 son, 34 Neb. 455, 51 N. W. 1035; satisfy all damages between the 
 
 Wheeler v. Walden, 17 Neb. 122, 22 parties applies to future rents and 
 
 N. W. 346; Elliott v. Aiken, 45 N. H. not to rents already accrued. Ed- 
 
 30; Miller v. Dennis, 68 N. J. L. 320, monds v. Mounsey, 15 Ind. App. 
 
 53 Atl. 394; Lamar v. McNamee, 10 399, 44 N. E. 196. 
 
 Gill & J. (Md.) 116; Williams v. ^"Foster v. Fleishans, 69 Mich. 
 
 Jones, 1 Bush (Ky.) 621. 543, 37 N. W. 549. 
 
 II
 
 607 SURRENDER. [§ 541 
 
 agreement is not effectual to terminate a lease till it has been acted 
 upon by the transfer of possession to the landlord.^®^ 
 
 § 541. Cancellation and destruction of lease. — The requirements 
 of the statute of frauds as to what constitutes a valid surrender in 
 fact are such that they exclude a cancellation or destruction of the 
 document. "Since this statute," says Bacon in his abridgment, "a lease 
 for years cannot be surrendered by cancelling the indenture, without 
 writing, because the intent of the statute was to take away the man- 
 ner they formerly had of transferring interests in lands by signs, 
 symbols, and words only." The same authority also states the reason 
 for this to be that "such deed or indenture being not of the essence 
 of the lease, the destruction or cancelling thereof shall not destroy or 
 defeat the lease or interest of the lessee, because his actual entry into 
 the land, and continuance of the visible possession and occupation 
 thereof, give sufficient sanction and notoriety to the contract."^^* 
 When this question came before the court of King's Bench^^* Lord 
 Ellenborough said that the court never entertained any doubt about it, 
 "for, as it is enacted by the statute of frauds that no lease of any lands 
 or houses shall be surrendered unless by deed or note in writing, 
 signed by the party or his agent thereunto lawfully authorized by writ- 
 ing, or by act and operation of law, the act of cancellation, which can 
 in no allowable sense of the words be considered as either a deed or a 
 note in writing, cannot, since that statute, be a surrender." The 
 doctrine has been subsequently affirmed by the Court of Exchequer.^^^ 
 In accordance with the- English authorities it is almost universally held 
 in the United States that where a conveyance of land operates by way 
 of transmutation of possession, the mere cancellation or redelivery of 
 the deed, by mutual consent or otherwise, while it may destroy the 
 covenants on either side therein contained, will not of itself revest the 
 estate in the grantor, and this though the deed may never have been 
 recorded.^^^ 
 
 ^"National &c. Asso. v. Brewer, house, 4 Conn. 550;~Gilbert v. Bulk- 
 
 41 111. App. 223; Elliott v. Aiken, ley, 5 Conn. 262. Georgia: Jordan 
 
 45 N. H. 30. V. Pollock, 14 Ga. 145. Illinois: 
 
 "^ Bacon Abr. Tit. Leases and Brewer v. National &c. Asso., 166 
 
 Terms for Years, §§ S. and T. 111. 221, 46 N. E. 752, affirming 61 
 
 =^*Roe v. Archbishop of York, 6 111. App. 161. Indiana: Connelly v. 
 
 East 86. Doe, 8 Blackf. 320. Massachusetts: 
 
 '"Ward V. Lumley, 5 H. & N. 87. Hatch v. Hatch, 9 Mass. 307; Hol- 
 
 '"^ Alabama : Mallory v. Stodder, 6 brook v. Tirrell, 9 Pick. 105; Chess- 
 Ala. 801; King v. Crocheron, 14 Ala. man v. Whittemore, 23 Pick. 231. 
 822. Connecticut: Botsford v. More- Missouri: Tibeau v. Tibeau, 19 Mo.
 
 §■ 542] TERMINATION OF TENANCY. 608 
 
 § 542. A common method of effecting a surrender of a term for 
 years by operation of law is by the substitution of a new lease. 
 "For the principle is well settled that if a lessee accept and enter under 
 a lease from his lessor to commence before the expiration of the first, 
 the acceptance of the new lease, as it admits the ability of the lessor to 
 make such new lease, operates in law as a surrender of the first."^^^ 
 The execution and acceptance by both parties of a lease intended as a 
 substitute for a former lease which had been destroyed must be held 
 as amounting in law to a surrender of the former lease and of all rights 
 growing out of a parol agreement collateral to the first lease.^^^ 
 
 A written lease was given of certain property, but possession was 
 not taken under it. Subsequently the parties entered into a different 
 parol agreement for a lease and possession was transferred in pursuance 
 thereof. This operated as a surrender of the first lease, and complain- 
 ant was entitled to have it cancelled.^^^ In a Missouri case the exe- 
 cution by the lessor of a short lease to a third person was held not to 
 be a surrender of an outstanding lease. The lessee had agreed that the 
 lessor should execute the short lease for the purpose of satisfying a 
 debt due to such third party from the lessee, and it was agreed that 
 after the termination of the short lease the lessee should resume his 
 possession under the original long one. This was not a surrender 
 of the original lease, because such an effect would be contrary to 
 the intention of the parties.^*''^ 
 
 The surrender of a lease by the owner of an equity of redemp- 
 tion in a leasehold estate and his acceptance of another one in its 
 place can have no effect against the mortgagee, or any tenant hold- 
 ing under title from him. The second lease and the reservation 
 of rent in it would be inoperative to bind the successive assignees 
 of the original leasehold, if the mortgagee did not assent to the 
 surrender. Either the mortgagee or the purchaser at a sale under 
 the mortgage could ratify and approve the arrangement, and where 
 the new lease was simply to rectify an error in boundary, there 
 
 78; Lawrence v. Lawrence, 24 Mo. Jones v. Neale, 2 Patt. & H. 339. 
 
 269. Mississippi: Whltton v. Smith, Wisconsin: Parker v. Kane, 4 Wis. 1. 
 Freem. 231. New York: Jackson v. ''"Coleman v. Mabberly, 3 T. B. 
 
 Anderson, 4 Wend. 474; Jackson v. Mon. (Ky.) 220, per Baylie, C. J. 
 Page, 4 Wend. 585 ; Schutt v. Large, ^'^ Hoag v. Carpenter, 18 111. App. 
 
 6 Barb. 373; Raynor v. Wilson, 6 555; Enyeart v. Davis, 17 Neb. 228. 
 
 Hill 469; Rowan v. Lytle, 11 Wend. 22 N. W. 449. 
 
 617. Pennsylvania: Wiley v. Christ, ^''' Switzer v. Gardner, 41 Mich. 
 
 4 Watts 196, 199. Virginia: Gray- 164, 2 N. W. 191. 
 sons v, Richards, 10 Leigh 57 ; ^^ Thomas v. Zumbalen, 43 Mo. 
 
 471.
 
 609 SURRENDER. .[§ 543 
 
 could be no more positive and unequivocal manner of ratification than 
 by taking and enjoying the benefits conferred by it.^^^ 
 
 § 543. The doctrine of Thomas v. Cook,^^^ ^s laid down by the court 
 of King's Bench, is that it constitutes a surrender by operation of law 
 for a landlord to accept rent directly from an undertenant who has 
 been put in possession by the lessee and then subsequently to distrain 
 the undertenant's goods for rent in arrear. The court reason that "if 
 a lease be granted to an individual and there be a subsequent demise 
 of the premises by parol to the same person, that will amount to a sur- 
 render of the lease. Then the circumstance of the lessee having first put 
 in another person as undertenant, and having afterwards assented to a 
 second demise by the landlord to that person, will amount to a 
 virtual surrender of his interest by act and operation of law." The rule 
 laid down by this decision has been followed both in England^ ^^ and 
 in this country,^''* and it would probably be held generally that a new 
 lease to a stranger, with the assent of the lessee, would be as effectual 
 to work a surrender by operation of law as a new lease to the original 
 lessee. The execution of a new lease by the landlord to a third party, 
 with the consent of the tenant, and actual occupation under such lease 
 constitutes a surrender of a former one by operation of law. An 
 actual and continued change of possession by the mutual consent of the 
 parties will operate as a surrender by operation of law.^'^^ A new lease 
 by parol to a third party who enters into possession in the place of the 
 former lessee, who held under an instrument in writing, was held to 
 constitute a surrender by operation of law.^*'*' The execution of a sec- 
 ond lease to another person with the assent of all parties has been held 
 
 '"Judik v. Crane, 81 Md. 610, 32 Beall v. White, 94 U. S. 382, 389; 
 
 Atl. 276. Logan v. Anderson, 2 Dougl. 
 
 '«2 Thomas v. Cook, 2 Stark. 360, (Mich.) 101; Hoerdt v. Hahne, 91 
 
 2 B. & Aid. 119. 111. App. 514; Palmer v. Myers, 79 
 
 ='«^Nickells v. Atherstone, 10 A. & 111. App. 409; Hesseltine v. Seavey, 
 
 E. (N. S.) 944, 59 E. C. L. 944; Wood- 16 Me. 212; Lamar v. McNamee, 10 
 
 cock V. Nuth, 8 Bing. 170, 21 E. C. Gill & J. (Md.) 116; Randall v. 
 
 L. 492; Davison v. Gent, 1 H. & N. Rich, 11 Mass. 494. 
 
 744. ^^^^ Williams v. Vanderbilt, 145 111. 
 
 ^'"Bowen v. Haskell, 53 Minn. 480, 238, 34 N. E. 476; Stobie v. Dills, 
 
 55 N. W. 629; Amory v. Kannoffsky, 62 111. 432; Morgan v. McCollister, 
 
 117 Mass. 351; Coe v. Hobby, 72 110 Ala. 319, 20 So. 54. 
 
 N. Y. 141, 145; Bedford v. Terhune, =""' Koenig v. Miller Bros. &c. Co., 
 
 30 N. Y. 453, 463; Smith v. Kerr, 108 38 Mo. App. 182; Wallace v. Ken- 
 
 N. Y. 36, 15 N. E. 70; Underbill v. nelly, 47 N. J. L.- 242. 
 Collins, 132 N. Y. 271, 30 N. E. 576; 
 Jones L. & T.— 39
 
 § 544] TEEillXATIOX OF TEXAXCY. 610 
 
 to operate as a surrender of a prior one, even though the original 
 lessees remain in possession as sub-tenants under the second lessee.^ ^^ 
 In one case a new lease was made to different parties and the old lessee 
 held over under an agreement between new and old lessees whereby the 
 latter were to remain in possession and pay the rent reserved under 
 the new lease directly to the lessors. The acceptance of the rent by the 
 lessor under this agreement did not amount to a surrender of the new 
 lease, nor did it discharge the new lessee from his covenant to pay 
 rent.^*'® 
 
 The agreement to release the original lessee and accept other tenants 
 in their stead need not necessarily be expressed. It may be inferred 
 from the conduct of the parties. Eendering a bill to another occupant 
 of the premises for rent and accepting payment from him is a sufficient 
 basis for inferring a release of the original lessee.^^^ Thus in a tenancy 
 from year to year, a surrender by operation of law takes place when by 
 consent of both parties another person becomes tenant of the premises 
 and the landlord collects rent from him.^^° But it has been held that 
 the agent of the landlord to rent premises may become the agent of 
 the tenant to sub-let them without causing a surrender of the term.^^^ 
 In another case it was held that the receipt by the lessor of rent from 
 an undertenant of part of the premises is no evidence of consent to 
 an abandonment by the lessee for want of repairs.^"^ 
 
 § 544. The foregoing doctrine has been restricted in its applica- 
 tion by a subsequent English case.^" In the decision referred to there 
 there was an outstanding sub-lease at the time a second lease was made 
 by the original lessor to a third person, which was claimed to effect a 
 surrender by operation of law of the original lease. So the subject- 
 matter of the alleged surrender was a reversion consequent upon a term 
 for years. The court held that even if it felt bound by the rule of 
 Thomas v. Cook, where there was an open and notorious shifting of 
 the actual possession, it did not follow that they would adopt the 
 same doctrine where reversions or incorporeal hereditaments are dis- 
 posed of, which pass only by deed. In the case under consideration 
 there was not a surrender by operation of law. The court further es- 
 
 ^'^ Donkersley v. Levy, 38 Mich. & C. 332; Matthews v. Sawell, 8 
 
 54. Taunt. 270. 
 
 '«« Field V. Herrick, 101 111. 110. =='' Hirsch v. Oliver, 91 Ga. 554, 18 
 
 369 Fry V. Patridge, 73 111. 51. S. E. 354. 
 
 "0 Clemens v. Broomfield, 19 Mo. ""'- Slacum v. Brown, 5 Cranch C. 
 
 118; citing Bees v. Williams, 2 C. C. 315, 22 Fed. Cas. No. 12934. 
 
 M. & R. 581; Hall v. Burgess, 5 B. =" Lyon v. Reed, 13 M. & W. 285. 
 
 I
 
 611 SURRENDER. [§§ 545, 546- 
 
 presses an opinion that the case of Thomas v. Cook was an innovation 
 and was not borne out by the principles of the ancient law. That law 
 was that the consent of the tenant for life to the remainderman making 
 a feoffment to a stranger did not amount to a surrender of the estate 
 for life."* To constitute a surrender by operation of law, overt acts of 
 l)oth parties inconsistent with the continuance of the term are essen- 
 tial. Thus the interest of one of two joint lessees in the demised 
 premises is not surrendered to the lessor by operation of law by a sale of 
 it to the co-lessee, accompanied with a parol agreement between the 
 lessor and the latter that the lessor will thereafter look to the co-lessee 
 for the performance of the covenants of the lease.^^^ 
 
 § 545. Change in terms. — Wliere the parties to a lease agree to a 
 reduction of rent, and the smaller sum is paid and accepted, this has 
 been held to operate as a surrender of the former term and a new let- 
 ting at a lower rate."^ The intention of the parties is the test, and 
 the question arises whether a reduction in rent is such a material 
 change in the terms of the holding as to show a surrender of the for- 
 mer term. However, it is certainly true that every modification in a 
 contract of lease does not constitute a new lease and operate as a sur- 
 render. To make it a surrender by operation of law the second lease 
 must be in all its essentials a complete and operative lease, because no 
 implication arises, unless one perfect lease is substituted by another 
 and the existence of the last is inconsistent with that of the first.^" A 
 parol lease to a tenant in possession may take effect as a surrender of 
 an existing written lease to the same person.^^^ Where a tenant holds 
 over from year to year after expiration of a lease under seal, a parol 
 agreement regarding the amount of rent and the time of payment and 
 payment of rent under such agreement constitute a new lease and the 
 terms of the old lease are no longer binding.^"'' 
 
 § 546. Leases in future. — "Lessee for years to begin presently can- 
 not, till entry or waiver of the possession by the lessor, merge or drown 
 the same by any express surrender, because till entry there is no re- 
 
 "* Swift v. Heath, Carthew 110; 238, 77 N. W. 184; Dills v. Stobie, 
 
 Viner's Abr., "Surrender," F. 3 and 81 111. 202. 
 
 4; Brooke Abr. tit. Surrender, pi. =" Hurtt v. Woodland, 24 Md. 393. 
 
 ^8. 378 Ryan V. Kirchberg, 17 111. App. 
 
 '"'Felker v. Richardson, 67 N. H. 132. 
 
 509, 32 Atl. 830. ='« Goldsbrough v. Gable, 36 111. 
 
 ''"Ossowski v. Wiesner, 101 Wis. App. 363.
 
 § 547] TEKMINATION OF TENANCY. 612 
 
 version wherein the possession may drown."^®*' It is also well settled 
 that an agreement by a tenant to surrender in the future does not give 
 the landlord a right to enforce the agreement by summary proceed- 
 ings. He must resort to his action for damages.^^^ In Illinois the can- 
 cellation of a lease prior to the time when the term was to commence 
 was nevertheless held to be a valid surrender. The court point out that 
 the requirement for a deed or note in writing was omitted in the 
 Illinois statute of frauds, and add : "It is true the cancellation in this 
 case was accompanied by no surrender of the premises for the very ex- 
 cellent reason that the [parties] had never been in possession. . . . 
 The lease was the only tangible thing in their possession which they 
 could surrender, and we see no reason why such surrender, if made 
 with the intention of terminating or cancelling the tenancy, provided 
 such intention was assented to and participated in by the lessors, was 
 not valid as a surrender of the term."^^^ 
 
 § 547. Where a tenant leaves the land and abandons the posses- 
 sion, and afterwards reenters, but adversely to his former landlord, 
 the effect is an interruption of the possession of the landlord not only 
 of the place where the reentry is made, but as to the whole tract, ex- 
 cept so far as the landlord retains possession by other means.^^^ Where 
 a tenant vacates the leased premises and abandons them, he forfeits all 
 his rights under the lease, and cannot maintain an action against the 
 landlord for entering upon them.^^* If a tenant renting for crop rent 
 abandons the farm, the crops revert to the landlord and the tenant can- 
 not sell the crops to his prejudice.^''^ But when a tenant abandons his 
 crop and fails to perform the terms of his lease, the landlord may 
 gather it and take out of it and retain against the tenant's mortgagee 
 of the crop the expense of preserving it from waste and preparing it 
 for market, as well as the rent.^^^ By reentering, cultivating and 
 gathering the crop after an abandonment of the tenant the landlord 
 terminates the lease. It is not to the mere use and occupation of the 
 lands that the landlord succeeds upon reentering. All growing crops 
 pass to him as incident to his restoration to the possession and to the 1 
 
 ^'"Bacon's Abr., tit. Leases and ^-* Haller v. Squire, 91 Iowa 10, 58 
 
 Terms for Years, § S. N. W. 921. 
 
 '" Fish V. Thompson, 129 Mich. ^^° Maclary v. Turner, 1 Marvel 
 
 313, 88 N. W. 896. (Del.) 24. 
 
 ^' Beidler v. Fish, 14 111. App. 29. ^^^ Fry v. Ford, 38 Ark. 246. See 
 
 383 Myers v. Sanders, 7 Dana Sanders v. Ellington, 77 N. Car 
 
 (Ky.) 506, 527. 255, and Carpenter v. Jones, 63 111 
 
 517. 
 
 f 
 
 I
 
 613 SURRENDER. [§ 548 
 
 termination of the tenancy. No right or interest in them remains to the 
 tenant.^" On principles of obvious justice it is held that, if a tenant, 
 before the expiration of the term, abandons the premises he has leased 
 or rented, the landlord is not bound to let them remain vacant, but 
 may reenter and occupy himself, or may lease to another.^^* Ordinarily 
 where a tenant dies pending a lease, the unexpired term continues to 
 be the property of his estate, which is liable for the agreed rent,^*® 
 but there is a distinction whereby a contract governing a single year 
 title to all crops is to remain in the landlord till the rent and advances 
 are paid, and the tenant dies before the cultivation of the crop is fin- 
 ished. As the crop belonged to the landlord, if it was reasonably 
 necessary under all the circumstances for him to enter to preserve his 
 rights, he could do so lawfully.^^*^ 
 
 Where mines, which had been leased for a term of twenty-five years, 
 were not worked at all and no rent had been paid for eight years and 
 the lessees were not in possession, it was held that the lessors were 
 justified in treating the lease as abandoned and in executing a new lease 
 to other parties, which could not be annuUed.^^^ But different con- 
 siderations must be taken into account where a lump sum has been paid 
 as the consideration for granting the lease. In that case failure for fif- 
 teen or eighteen years to develop mining property was not conclusive 
 proof of abandonment, especially if there is some evidence that the 
 parties intended to develop the property as soon as they were able.^^^ 
 
 § 548. The delivery of the key by the tenant and keeping it by the 
 landlord are not sufficient to show a surrender of the premises by the 
 tenant and an acceptance by the landlord, unless that appears to be 
 the intention of both parties.^"^ In an English case^^* the tenant, upon 
 the bankruptcy of his landlord, sent the key to the office of his official 
 assignee, where it was left with his clerk, and immediately left pos- 
 session of the premises, and no further communication took place. 
 
 ^'Shahan v. Herzberg, 73 Ala. 59; '»^ Thomas v. Sanford &c. Co., 71 
 
 Wheat V. Watson, 57 Ala. 581. Me. 548; Withers v. Larrabee, 48 
 
 ^'Schulsler v. Ames, 16 Ala. 73; Me. 570; Livermore v. Eddy, 33 Mo. 
 
 Wheat V. Watson, 57 Ala. 581. 547; Martin v. Stearns, 52 Iowa 345, 
 
 '''Hutchings v. Commercial Bank, 3 N. W. 92; Blake v. Dick, 15 Mont. 
 
 91 Va. 68, 20 S. E. 950. 236, 18 Pac. 1072; Auer v. Penn, 99 
 
 '""Riddle v. Hodge, 83 Ga. 173, 9 Pa. St. 370; Thomas v. Nelson, 69 
 
 S. E. 786. N. Y. 118; Griffith v. Hodges, 1 C. 
 
 '"Porter v. Noyes, 47 Mich. 55, & P. 419; Newton v. Speare &c. Co., 
 
 10 N. W. 77. 19 R. I. 546, 37 Atl. 11. 
 
 '^'Breyfogle v. Wood, 15 Ky. L. '"* Cannan v. Hartley, 9 M. G. & 
 
 R. 782. S. 634, 67 E. C. L. 634.
 
 §• 548] TERMIXATIOX OF TEXAXCY. 614 
 
 This was held not to amount to a surrender by act of law. "I am of 
 opinion," says Wilde, C. J., in the ease referred to, "that there was no 
 evidence of a surrender and acceptance which could have been properly 
 left to the jury." "But it is said," remarks Maule, J., "that the con- 
 duct of the official assignee in not returning the key amounts to an 
 acceptance of it. I do not think the official assignee was bound to seek 
 out the tenant for the purpose of rendering back the key." The taking 
 of a key would be no more than entering and shutting a door of the 
 premises would be.^^^ So it was held if a tenant quits the premises 
 during the term, and the landlord accepts the key, stating that he re- 
 ceives the key but not the premises, it is not an acceptance of the sur- 
 render.^®' Where the lessor, on accepting the key to leased premises 
 from the lessee, takes it on the express condition that the lessee shall 
 continue liable for the rent unless the premises are subsequently leased, 
 this does not constitute a surrender by operation of law.^^^ Merely 
 sending a key of premises to the owner is not such a surrender and 
 acceptance of the premises as will discharge the tenant from liability 
 for rent.^®^ It is not from the return, but from the return and accept- 
 ance of the key, that by operation of law a surrender of the lease may 
 be presumed.^ ^^ The landlord's failure to return keys which have been 
 sent to him by a tenant who is vacating the leased premises does not 
 effect a surrender by operation of law.*'"^ The court remarked in one 
 case : "We are by no means prepared to concede that an abandonment 
 of the premises by the tenant, and a delivery to and acceptance of the 
 keys by the landlord, would alone necessarily amount to a surren- 
 ^gp "401 rpj^g mere act of the landlord and his wife in picking up the 
 key of the demised premises from the doorstep of his house, where the 
 tenant had thrown it, and keeping it, does not show an acceptance of 
 the tenant's abandonment. Whether landlord's acceptance of keys and 
 resumption of possession amounts to a surrender of a lease depends on 
 the intention of the parties. The landlord has a right to accept the 
 keys and take possession of the premises to protect them from waste. 
 The law does not necessarily infer a surrender from such acts.*"^ The 
 
 ^'"Walker v. Furbush, 11 Cush. '=" Bacon v. Brown, 9 Conn. 334, 
 
 (Mass.) 366. 339; Spies v. Voss, 16 Daly (N. Y.) 
 
 "'"' Townsend v. Albers, 3 E. D. 171. 
 
 Smith (N. Y.) 460. *"> Thomas v. Nelson, 69 N. Y. 118. 
 
 ^^' Nelson v. Thompson, 23 Minn. ""' Lucy v. Wilkins, 33 Minn. 441, 
 
 508. 23 N. W. 861, per Mitchell, J.; Diehl 
 
 ^^'' Newton v. Speare &c. Co., 19 R. v. Lee (Pa.), 9 Atl. 865. 
 
 I. 546, 37 Atl. 11; Buck v. Lewis, *°- Ladd v. Smith, 6 Ore. 316. 
 46 Mo. App. 227.
 
 615 SURRENDER. [§ 549 
 
 landlord may even proceed to make repairs on the abandoned premises 
 if he does not occupy or use them.**'^ But the nature of the repairs 
 may show that the landlord intended to accept the surrender. As 
 where the landlord made repairs for his own benefit and not merely to 
 prevent injury to the premises.*"* And it has been held that an entry 
 by the landlord to make repairs after the tenant has abandoned the 
 premises is an election to treat the abandonment as a surrender.**'^ 
 
 § 549. After an unauthorized abandonment by a tenant, the land- 
 lord may by taking proper precautions relet to another without creat- 
 ing a surrender by operation of law, but he is not bound to do so. 
 In a recent case it was said: "The rule sanctioned by the decided 
 weight of authority, if, indeed, there can be said to be a diversity of 
 opinion on the subject, is that the landlord may in such ease, at his 
 election, relet the premises upon the abandonment thereof by the 
 tenant, in which case the measure of his damage will be the agreed 
 rental less the amount realized on account of such reletting; or he 
 may permit the premises to remain vacant until the end of the term 
 and recover his rent in accordance with the terms of the lease."*"" Al- 
 though the landlord may relet for the benefit of the lessee and on his 
 account, without releasing him from his undertakings,*"'^ such acts if 
 unexplained would amount to a surrender by operation of law, as in a 
 case where the lessor accepted the surrender.*"^ Too much importance 
 should not be attached to a delivery of the keys to the landlord and his 
 attempt to relet the premises. The legal effect of these acts depends 
 largely on the intent with which the keys were delivered and for 
 what purpose they were accepted. The landlord's words at the time he 
 
 *"* Livermore v. Eddy, 33 Mo. 547. Bowen v. Clark, 22 Ore. 566, 30 
 
 *°*Elgutter V. Drishans, 44 Neb. Pac. 430; Meyer v. Smith, 33 Ark. 
 
 378, 63 N. W. 19. 627; State v. McClay, 1 Har. (Del.) 
 
 "^MacKellar v. Sigler, 47 How. 520; Breuckmann v. Twibill, 89 Pa. 
 
 Pr. (N. Y.) 20. St. 58; Humiaton v. Wheeler, 70 
 
 *»« Merrill v. Willis, 51 Neb. 162, 111. App. 349; Auer v. Penn, 99 Pa. 
 
 164, 70 N. W. 914, per Post, C. J.; St. 370; Bonrdereaux v. Walker, 78 
 
 citing Hayward v. Ramge, 33 Neb. 111. App. 63. 
 
 836, 51 N. W. 229; Schuisler v. "'Brown v. Cairns, 63 Kan. 584, 
 
 Ames, 16 Ala. 73; Tully v. Dunn, 66 Pac. 639; Bowen v. Clarke, 22 
 
 42 Ala. 262; Rice v. Dudley, 65 Ala. Ore. 566, 30 Pac. 430; Stewart v. 
 
 68; Ledoux v. Jones, 20 La. Ann. Sprague, 71 Mich. 50, 38 N. W. 673; 
 
 539; Milling v. Becker, 96 Pa. St. Biggs v. Stueller, 93 Md. 100, 48 
 
 182; Randall v. Thompson, 1 Tex. Atl. 727; Gaines v. McAdam, 79 111. 
 
 App. Civ. Cas., § 1102; Rispiui v. App. 201; Scott v. Beecher, 91 Mich. 
 
 Porta, 89 Cal. 464; Underbill v. Col- 590, 52 N. W. 20. 
 
 lins, 132 N. Y. 269, 30 N. E. 576; "^Witman v. Watry, 31 Wis. 638.
 
 § 550] TEEMINATION OP TENANCY. 61G 
 
 accepted the keys are good evidence on this subject.^ ''^ There is no 
 surrender where landlord refuses to accept the keys except on con- 
 dition that he is to find another tenant, if possible, and hold the lessee 
 responsible for any deficiency in the rent.*" "If at the time when the 
 keys were returned to him the landlord notified the tenant that he 
 received them under protest, would re-rent and hold him for rent, and 
 the defendant assented to such renting, the presumption which might 
 otherwise arise that there was an acceptance of the property would not 
 be reasonable ; and if under such circumstances he rented the property 
 it would be plain that he would do so for the lessee's interest and not 
 with the intent of accepting a surrender. But if the landlord, without 
 such assent on the part of the tenant, does an act, such as taking pos- 
 session and reletting the premises, which is utterly inconsistent with 
 the relation of landlord and tenant, then a surrender is implied."*^^ 
 The mere attempt of the agent of the landlord to relet premises after 
 an abandonment by the tenant would not constitute a surrender by 
 operation of law.*^^ Taking possession, repairing and advertising the 
 house for rent are all acts which may be in the interest and for the 
 benefit of the tenant, and do not necessarily discharge him from his 
 covenant to pay rent.*^' In Texas it has been held that where a land- 
 lord relets premises for the benefit of a former tenant, he recovers the 
 amount lost by the change of tenants not as rent but as damages for the 
 injury done him by the tenant in abandoning the premises.*^* 
 
 An agreement between a lessor and lessee that the former should 
 take possession of the premises and relet them for the benefit of the 
 lessee was held not to discharge sureties who had bound themselves 
 for the payment of the agreed rent. This was no more than a consent 
 that the lessor might relet, even though the lessee delivered over his 
 keys to the lessor.*^^ 
 
 § 550. It is essential that the landlord notify his tenant that his 
 responsibility for the deficiency in rent will continue. So, where the 
 tenant on leaving recognized the lease and offered to surrender, and 
 the landlord entered and relet without notice to the former lessee, this 
 
 ^"^ Bowen v. Clarke, 22 Ore. 566, "= Gaines v. McAdam, 79 111. App. 
 
 30 Pac. 430. 201. 
 
 "" Stewart v. Sprague, 71 Mich. *" Breuckmann v. Twibill, 89 Pa. 
 
 50, 38 N. W. 673. St. 58. 
 
 *" Biggs v. Stueler, 93 Md. 100, "* Randall v. Thompson, 1 Tex. 
 
 48 Atl. 727, per Page, J., citing Kin- App. Civ. Cas., § 1102. 
 
 sey V. Minnick, 43 Md. 112. '"* Morgan v. Smith, 70 N. Y. 537.
 
 617 SURRENDER. [§ 551 
 
 operated as a surrender by operation of law.**® It is to be presumed that 
 the landlord has given up all hope to hold the tenant for the balance of 
 rent when he enters into possession and deals with the property as an 
 owner.**'' So where a tenant voluntarily vacated the premises before 
 the expiration of the term and delivered the keys to the landlord at the 
 latter's request, who retained them and during the term advertised 
 the premises for rent, an implied surrender arose by operation of 
 law.**® Eeletting premises for a longer term than the original demise, 
 without notifying lessees that it is done on their account, has been held 
 to show an acceptance of a surrender by operation of law.**^ In case 
 there is nothing to indicate a purpose on the part of the landlord in re- 
 suming possession to hold the tenant liable for rent or to lease to others, 
 on account of the tenant, he merely accepts the abandonment as a sur- 
 render of the leasehold interests and thereby puts an end to the con- 
 tract.*^° An action for rents to accrue after an abandonment suf- 
 ficiently indicates an intention on the part of the landlord not to ac- 
 cept a surrender.*^* 
 
 In one jurisdiction the distinction has been drawn between a case 
 where the landlord and tenant had a conversation in which the land- 
 lord refused to accept a surrender and told the tenant he would relet 
 the premises for his benefit*^^ and a case where the landlord wrote the 
 tenant to that effect. *^^ In the former case there was no surrender, 
 while in the latter there was. The failure of the tenant to answer the 
 letters did not show his acquiescence to the proposal of the land- 
 lord. The court say: "It is clear, both on principle and authority, 
 that we have no right to indulge in the assumption that the letters 
 above referred to have the force and effect of verbal statements. . . ." 
 
 § 551. Consent of tenant implied. — Strictly speaking, where a, 
 tenant abandons the premises leased, before the expiration of the 
 term, the landlord is at liberty to pursue either of two courses. He 
 may suffer the premises to remain vacant and sue on the contract of 
 renting, or he may enter and determine the contract, claiming the 
 rent due up to the time of abandonment. The landlord cannot take 
 
 "° Williamson v. Crossett, 62 Ark. Pork Co., 116 Iowa 723, 89 N. W. 
 
 393, 36 S. W. 27. 196. 
 
 "'Palmer v. Meyers, 79 111. App. "^ Martin v. Stearns, 52 Iowa 345, 
 
 409. 3 N. W. 92. 
 
 "^Ledsinger v. Burke, 113 Ga. 74, ^"Underbill v. Collins, 132 N. Y. 
 
 38 S. E. 313. 270, 30 N. E. 576. 
 
 "'Welcome v. Hess, 90 Cal. 507, *=^ Gray v. Kaufman &c. Co., 162 
 
 27 Pac. 369. N. Y. 388, 56 N. E. 903, reversing 16 
 
 *^° Armour &c. Co. v. Des Moines App. Div. 631.
 
 §§ 552, 553] TERMINATION OF TENANCY. 618 
 
 possession of the premises and insist, at the same time, that the con- 
 tract of renting is in force without the consent, express or implied, of 
 the tenant. For the landlord to enter the leased premises in his own' 
 right during the term would constitute an eviction and suspend the 
 tenant's liability for rent. But the landlord may enter as the agent 
 of tenant, and such a presumption is in conformity with the policy 
 of the law, to prevent loss and reduce the damage recoverable for 
 breach of contract. Slight acts will justify an inference of the ten- 
 ant's assent.*^* 
 
 § 552. Rights of sub-tenants. — It is generally true that the sur- 
 render of his lease by a tenant will not divest his sub-tenants of their 
 rights.*^^ Where a tenant under a lease containing no restriction 
 upon sub-letting sub-lets a portion of the premises, and subsequently, 
 without the knowledge or assent of the sub-tenant, surrenders his 
 term to the owner, such surrender and the consequent merger of the 
 greater and lesser interest terminate the original lease and the term 
 created thereby, as between the original parties to the lease and 
 surrender. But the interest and the terms of the sub-tenant continue 
 as if no surrender had been made.*^^ 
 
 §553. The question whether negotiations and circumstances 
 amounted to a surrender by operation of law is properly one to be 
 decided by the jury.*-^ A surrender may be inferred from acts show- 
 ing an agreement between the parties to that effect.*^ ^ There is a 
 
 *^Rice V. Dudley, 65 Ala. 68; paid by Mrs. Cooper, as that fact 
 
 Crommelin v. Thiess, 31 Ala. 412; is not negatived by the report. If 
 
 Schuisler v. Ames, 16 Ala. 73. The Rich Is not to be considered as the 
 
 comment of the court is interesting agent of Randall in putting Mrs. 
 
 in an early case of a releting by the Cooper into the premises, that act 
 
 landlord after the tenant's abandon- may well be considered as an ouster 
 
 ment; Chief Justice Parker said: of Randall; and so the lease would 
 
 "For the true intention of the par- be discharged from that time. Ran- 
 
 ties to the transaction may be well dall v. Rich, 11 Mass. 494, 496. 
 
 enforced by admitting that the con- ■'-^ McKenzie v. City of Lexington, 
 
 tract was in force even after the 4 Dana (Ky.) 129. See § 429. 
 
 delivery of the key; and that Rich '='' Eten v. Luyster, 60 N. Y. 252. 
 
 then consented to become the agent See § 659. 
 
 of Randall in procuring a new ten- *^^ Youell v. Kridler, 105 Mich, 
 
 ant, and to be responsible for the 344, 63 N. W. 439; Dobbin v. Mc- 
 
 rent as he undoubtedly ought to be Donald, 60 Minn. 380, 62 N. W. 437. 
 
 under these circumstances, having "* Ruling v. Roll, 43 Mo. App. 
 
 put the new tenant in without con- 234; Churchill v. Lammers, 60 Mo. 
 
 suiting Randall. Indeed, it is to be App. 244. . 
 presumed that the rent has been 
 
 I
 
 G19 RESTORATION" OF POSSESSION TO LANDLORD. [§ 554 
 
 distinction, however, between surrenders during and those at the end 
 of a term. In the surrender of the residue of an existing term by 
 operation of law no acts of the parties will amount to a surrender 
 uiiless the landlord's assent to a surrender is clearly inferable there- 
 from. But at the expiration of a term any act on the part of the 
 tenant clearly indicative that he has finally vacated the premises is 
 sufficient.^^^ Leaving a key to demised premises with the landlord 
 has been said to be a continuing offer on the part of the tenants ; and 
 as soon as the landlord did an act which would have constituted him 
 a trespasser if he had not exercised the option thus given to him, that 
 afforded ground for the inference that he assented to the tenancy be- 
 ing put an end to. His taking the key and showing the premises 
 with a view to letting them would also be evidence of an election on 
 his part to assent to the proposal of the tenants.*^" An oral agree- 
 ment, contemporaneous with the making of a lease, to the effect that 
 the lessee might surrender the premises at any time, may be shown 
 as throwing light on the acts of the lessor when the lessee does leave 
 during the term.*^^ The jury were held to be justified in finding 
 that a tenant had surrendered his interest in a lease when he knew of 
 a sale of the premises and, after a demand that he move, he gave up 
 control of the property and offered to do work around the place in 
 consideration of the use of the dwelling house.^^^ The burden of 
 showing a surrender of a lease by operation of law by some act im- 
 plying an agreement by both parties to consider the lease surrendered 
 rests upon the party asserting it.*^^ 
 
 V. Restoration of Possession to Landlord. 
 
 § 554. Duty of tenant to yield up possession. — It is a common 
 provision in leases for a lessee to covenant to surrender possession at 
 the end of the term. Such an undertaking is valid, and for breach of 
 it the lessor would have an action for damages, but the duty of the 
 lessee does not rest alone on such an agreement. On the expiration 
 of the term a lessee's rights in the premises cease and he is bound to 
 vacate them and yield up possession to the owner of the fee without 
 binding himself expressly to do so.*^* Furthermore a lessee may bind 
 
 "' Mitchell V. Blossom, 24 Mo. "= Hart v. Pratt, 19 Wash. 560, 53 
 
 App. 48. Pac. 711. 
 
 ^'''Phene v. Popplewell, 12 C. B. "'Churchill v. Lammers, 60 Mo. 
 
 (N. S.) 334, 104 E. C. L. 334. App. 244. 
 
 *" McGlynn v. Brock, 111 Mass. "^ A covenant by the landlord to 
 
 219. renew the lease does not give the
 
 § 554] TERMINATION OF TENANCY. 620 ■ 
 
 himself by an agreement to so vacate premises before the end of his 
 term. On a sale of premises at auction, the purchaser bought in re- 
 liance on a tenant's agreement to deliver up possession by a certain 
 date, and the court held that this agreement was supported by a valid 
 consideration and that an action on the case could be maintained 
 against the tenant for failure to keep his agreement.* ^° The duty of 
 a tenant to yield up possession is clearly laid down by Lord Kenyon : 
 "When a lease is expired the tenant's responsibility is not at an end, 
 for if the premises are in the possession of an undertenant the land- 
 lord may refuse to accept the possession and hold the original lessee 
 liable, for the lessor is entitled to receive the absolute possession 
 at the end of the term. But it may be proved that the lessor has ac- 
 cepted the undertenant as his tenant."*^® Where a tenant has sub-let 
 the whole or any part of the leased premises, and the sub-tenant is 
 in possession at the termination of the original lease, the tenant must 
 remove him, otherwise he will not be in a situation to render that 
 complete possession to which the landlord is entitled; and unless the 
 entire possession is surrendered the responsibility of the tenant for 
 rent will continue, although it may have been impossible for him, in 
 consequence of the obstinacy or ill will of the sub-tenant, and his 
 refusal to quit, to give the landlord full possession. *^^ When a lessee 
 puts another into possession of demised premises who holds over, it 
 is considered in law as the holding over of the lessee.*^^ So if a lessee 
 does an act of ownership, as where he attempts to collect rent from his 
 undertenant after the end of the term, he is liable to the original 
 landlord for rent during the period of the undertenant's holding 
 Qygj._439 Obviously a lessee cannot say to his landlord: "Though I 
 kept you out of possession, I did so not by holding myself, but by 
 surrendering the premises before my term expired to another, through 
 whom I held over." The vacation of the premises by the termor must 
 be unequivocal, and the exact means by which he accomplishes his 
 holding over is immaterial. If against the landlord's consent, the 
 premises are, through the action of the tenant, kept out of the land- 
 tenant the right at law to retain Bergen, 12 Allen (Mass.) 551; Bless 
 possession of the premises after v. Jenkins, 129 Mo. 647, 31 S. W. 
 the expiration of the original term. 938; Brewer v. Knapp, 1 Pick. 
 The tenant only has a remedy in (Mass.) 332; Lubetkin v. Elias &c. 
 equity or in an action on the cove- Co., 21 Abb. N. C. (N. Y.) 304. 
 nant. Finney v. Cist, 34 Mo. 303. *'« Brewer v. Knapp, 1 Pick. 
 
 *^ Moore v. Davis, 49 N. H. 45. (Mass.) 332; Dimock v. Van Ber- 
 
 "' Harding v. Crethorn, 1 Esp. 57. gen, 12 Allen (Mass.) 551. 
 *^' Campau v. Mitchell, 103 Mich. "' Ibbs v. Richardson, 9 A. & E. 
 617, 61 N. W. 890; Dimock v. Van 849; Waring v. King, 8 M. & W. 571.
 
 621 KESTORATION OF POSSESSION TO LANDLORD. [§ 555 
 
 lord's possession, it constitutes a holding over and subjects the ten- 
 ant to any penalty imposed by the lease.***' But it has been decided 
 that the mere fact that a tenant remains in possession after the ex- 
 piration of his lease caiinot be construed into a refusal to deliver 
 possession, so as to bring the case within the statutory provision im- 
 posing a penalty of double rent for a refusal to deliver possession 
 when the term expires. There must be some evidence of a demand 
 and refusal to restore the possession of the premises after the termi- 
 nation of the lease to make the lessee liable to the penalty.**^ On 
 the close of the term it is not the duty of the lessee to leave the de- 
 mised house unoccupied without demand or expressed readiness for 
 possession by the lessors, nor would such dereliction be proper. There 
 is, therefore, no breach of a covenant to return in retaining posses- 
 sion afterwards, as the tenant does so with the presumed consent of 
 the landlord ; and consequently a petition, in not averring the fact of 
 demand or manifested readiness to receive possession, fails to show a 
 good cause of action for an alleged breach of a covenant to return.**^ 
 
 § 555. It often happens that a tenant who Intends to quit at the 
 end of his term is not able to complete his arrangements promptly, 
 and desires to remain a short time after the term has expired. It 
 is often convenient for the landlord to permit him to do so, pro- 
 vided he acquires no rights thereby and can be turned out without 
 notice. A covenant for the payment of rent during such holding over 
 prevents all dispute in respect to that matter and the landlord may 
 forbear to exercise his rights without losing them.**^ A mere con- 
 tinuance in possession after the expiration of a lease makes a party a 
 tenant at sufferance, but if a new contract is shown, either express or 
 inferable from the dealings of the parties, the estate becomes one at 
 will, and a new contract may be inferred from an agreement for a new 
 lease.*** A tenant remaining in possession pending a treaty for a new 
 lease cannot be treated as a trespasser,**^ nor can he be held as a tenant 
 for another year.**® On the other hand, a tenant holding over after 
 
 ""Kerr v. Simmons, 8 Mo. App. 367; Edwards v. Hale, 9 Allen 
 
 431. (Mass.) 462; Kendall v. Moore, 30 
 
 "^ Shepperd v. Thompson, 2 Bush Me. 327; Amsden v. Atwood, 67 Vt. 
 
 (Ky.) 176; Thompson v. Marsh, 4 289, 31 Atl. 448. 
 
 Bush (Ky.) 423. "'^ Drake v. Wilhelm, 109 N. Car. 
 
 "=Kyle V. Proctor, 7 Bush (Ky.) 97, 13 S. E. 891; Schilling v. Klein, 
 
 493, per Robertson, J. 41 111. App. 209; Hollingsworth v. 
 
 "'Edwards v. Hale, 9 Allen Stennett, 2 Esp. 717. 
 
 (Mass.) 462. ""Drake v. Wilhelm, 109 N. Car. 
 
 "'Emmons v. Scudder, 115 Mass. 97, 13 S. E. 891.
 
 §■ 555] TERMINATION OF TENANCY. 622 
 
 the expiration of his term does not become a tenant at will without the 
 assent of his landlord.**^ However, where a possession commenced 
 rightfully, and with the consent of the owner, nothing is to be pre- 
 sumed to make it adverse. Mere holding over, after the term ended, 
 is not evidence of an adverse possession, and the possessor will be 
 regarded as a tenant at will of the landlord unless he can show that 
 since the expiration of the lease he has held forcibly or has acquired a 
 title paramount to that under which possession was originally taken.'*** 
 So far as tenants, by any act of their own, leave premises in an un- 
 tenantable condition, they are liable to the extent of the injury in a 
 special action adapted to the facts of the case; but the leaving of 
 bulky articles, such as a cargo of ashes on a wharf, does not consti- 
 tute a continued use and occupation of the premises so as to amount 
 to a waiver of a notice to terminate the estate;**^ and the leaving of 
 ashes, brickbats and rubbish by a tenant on quitting demised premises 
 has been held to be no breach of his agreement peaceably to yield up 
 the premises in good tenantable repair.*^** 
 
 In the absence of a different rule, created by statute or by express 
 contract, where a tenant holds over after the expiration of a written 
 lease, the law implies that he holds over subject to the terms of the 
 previous lease so far as they are applicable to a periodic holding.*^^ 
 The rights and duties of the parties are controlled by the contract 
 under which the entry was made.*^^ A notice to a tenant that he 
 must pay an increased rent if he holds over is usually held to be 
 accepted by the tenant's continuance in possession.^^^ If a tenant has 
 not surrendered premises or been evicted by paramount title, but re- 
 mains in occupation after the termination of his lease, his tenancy 
 must be regarded as continuing, and he is liable for rent and is 
 estopped to deny the title of his landlord.*^* Where a tenant holds 
 over with the tacit consent of his landlord a tenancy from year to 
 year is created; the tenant is liable for rent at the rate reserved in 
 the lease and the landlord cannot evict him during the middle of the 
 
 «^ Kellogg V. Groves, 53 Iowa 395, Ridgely, 19 111. App. 306; § 201, 
 
 5 N. W. 517. supra. 
 
 "« Gwynn v. Jones, 2 Gill & J. *" Harry v. Harry, 127 Ind. 91, 26 
 
 (Md.) 173. N. E. 562. 
 
 "'Wilson v. Prescott, 62 Me. 115. *" Despard v. Walbridge, 15 N. Y. 
 
 ^'^ Thorndike v. Burrage, 111 374, § 213, supra. See Lantman v. 
 
 Mass. 531. Miller, 158 Ind. 382, 63 N. E. 7G1. 
 
 '"Haeussler v. Holman &c. Co., «* Towne v. Butterfield, 97 Mass. 
 
 49 Mo. App. 631; Harry v. Harry, 105; Longfellow v. Longfellow, 54 
 
 127 Ind. 91, 26 N. E. 562; Miller v. Me. 240; Love v. Law, 57 Miss. 596; 
 
 Bonney v. Foss, 62 Me. 248.
 
 623 EESTOEATION OF POSSESSION" TO L.^'DLOKD. [§ 555 
 
 year.*^^ The tenant can be held for a full year's rent by reason of his 
 holding over in spite of his previous notice that the premises were 
 not wanted for another year/^® and this, too, although the rent re- 
 served was payable in monthly instalments.*^'^ But if a tenant va- 
 cates promptly, his mere failure to return the keys of the leased 
 house for a few days, does not furnish a foundation for an inference 
 of an implied renting for another month.*^^ However, an attempted 
 surrender of keys is unavailing where the tenant uses a portion of the 
 premises to store goods on and loads goods on the premises; under 
 such circumstances the landlord has an election to treat the lessee as 
 tenant for another year.*^^ 
 
 The possession of vacant premises could not exist after a notice that 
 they had been vacated, except through some positive acts equivalent 
 to a reentry or the exclusion of any other possession. Leaving a log 
 boom along a water front, which could be removed by any one, would 
 be no more significant as an act of possession than leaving a fence on 
 land which was unfenced when a lease commenced. Passing logs 
 into' the boom cannot be considered as possessory. They differ in no 
 respect from driving a loaded wagon upon a vacant lot to discharge its 
 load upon an adjoining enclosure.**'^ The tenancy was not continued 
 for another term where the tenant by his landlord's consent left certain 
 articles of property in the house ;*®^ or where a small quantity of coal 
 was left in bins;**'^ or where improvements were left on premises 
 pending a settlement of their value by appraisal. Without any pro- 
 vision as to paying for improvements, the tenant would be entitled 
 to a reasonable time for removing them after the expiration of the 
 lease. Under provisions as to settling the amount to be paid, if 
 the tenant was not in fault for delay in trying to agree, he would 
 be entitled to a reasonable time for removal after there was a dis- 
 agreement.*"^ After the termination of a tenancy, however, the 
 tenant is not justified in refusing to deliver up possession because the 
 
 *=' Usher v. Moss, 50 Miss. 208; '^^ Cavanaugh v. Clinch, 88 Ga. 
 
 Love V. Law, 57 Miss. 596. 610, 15 S. E. 673. 
 
 «' Smith V. Bell, 44 Minn. 524, 47 ^'o Thomas v. Frost, 29 Mich. 336. 
 
 N. W. 263. "" Blackwood v. Tanner, 54 Minn. 
 
 *" Intfen v. Foster, 8 Kan. App. 349, 56 N. W. 45. 
 
 336, 56 Pac. 1125; Smith v. Bell, 44 «= Steen v. Scheel, 46 Neb. 252, 64 
 
 Minn. 524, 47 N. W. 263. N. W. 957. 
 
 "' Neumeister v. Palmer, 8 Mo. ^^ Vorse v. Des Moines &c. Co., 
 
 App. 491; Waring v. King, 8 M. & 104 Iowa 541, 73 N. W. 1064; Smith 
 
 W. 571, 574. V. Park, 31 Minn. 70, 16 N. W. 490; 
 
 Sullivan v. Carberry, 67 Me. 531.
 
 § 556] TERMINATION OF TENANCY. 624 
 
 landlord is indebted to him for improvements.*^* Where a lease pro- 
 vided for appraisal of improvements within thirty days of its expira- 
 tion and that they should be a lien on the premises till the amount 
 determined should be paid, it was held that the lessee was not en- 
 titled to remain in possession till the appraisal was completed or any 
 time at all after the end of the term.*^^ Although a tenant is entitled 
 to remove improvements, no injustice is done in requiring him to sur- 
 render the possession of the premises on the expiration of the lease, 
 subject to his right of ingress and egress to remove improvements,"^ 
 But where a lessee agreed on being paid for improvements to yield 
 up the demised premises, an agreement may be implied that he 
 should retain possession till payment was made, although the terms 
 may have expired.*" But if a tenant holds a mortgage on the demised 
 premises which falls due at the expiration of the term of the lease, 
 the lessee may continue to hold possession as mortgagee even though 
 he has covenanted in his lease to deliver up possession at the end of 
 the term.***® 
 
 The consent of a landlord to his tenant's holding over is a defense 
 to an action for damage for loss of another tenant caused by such hold- 
 ing over.*''^ 
 
 § 556. As the law stood before modified by statute, a wide scope 
 of action was allowed to an owner in using force to recover possession 
 of his property. Thus, Lord Bacon lays it down that "At common law, 
 if a man had a right of reentry in him, he was permitted to enter with 
 force and arms, and to detain his possession by force, where his entry 
 was lawful.''*^" But this right must be exercised under certain lim- 
 itations,*^^ and there can be no doubt that an unlawful entry with 
 force was an offense at common law for which an indictment would 
 lie, provided the indictment charged the defendants with having used 
 such force as constituted a breach of the public peace.*" At any 
 
 *"Speers v. Flack, 34 Mo. 101; *"" Sloat v. Rountree, 87 Ga. 470, 
 
 Allison V. Thompson, 1 Litt. (Ky.) 13 S. E. 637. 
 
 31; Elliott v. Round Mountain Coal ^'^ Bacon Abr. Tit. Forcible Entry 
 
 & Iron Co., 108 Ala. 640, 18 So. 689. and Detainer. 
 
 ^'^Bresler v. Darmstaetter, 57 ^'^ Bract. 162, 163. 
 
 Mich. 311, 23 N. W. 825. ""Rex v. Bathhurst, Say. 225; Rex 
 
 """Caperton v. Stege, 91 Ky. 351, v. Storr, 3 Burr. 1698; Rex v. Bake, 
 
 15 S. W. 870, 16 S. W. 84. 3 Burr. 1731. In volume four, sec- 
 
 ^'Van Rensselaer v. Penniman, 6 tion 148, of his Commentaries, 
 
 Wend. (N. Y.) 569. Blackstone says of the common-law 
 
 «* Shields v. Lozear, 34 N. J. L. right of forcible entry: "But this 
 
 496. being found very prejudicial to the
 
 635 RESTORATION OF POSSESSION TO LANDLORD. [§' 556 
 
 rate, the law, as it stood, created a great inconvenience by encourag- 
 ing the mischief of forcible entry and giving an opportunity to power- 
 ful men, under the pretense of feigned titles, forcibly to eject their 
 weaker neighbors. This inconvenience led to the passing of a series 
 of acts forbidding entry with a strong hand and the retaining of 
 possession, peaceably acquired, by force, and providing for criminal 
 responsibilities for disobedience to these provisions. An indictment 
 for forcible entry may still be maintained at common law, though the 
 statutes give other remedies to the party aggrieved, provided the 
 indictment charge the defendants with, having used such force as con- 
 stitutes a public breach of the peace. "But there is no doubt," says 
 Lord Kenyon, 'Ijut that the offense of forcible entry is indictable at 
 common law, though the statutes give other remedies to the party 
 grieved, restitution and damages; and therefore in an indictment on 
 the statutes it is necessary to state the interest of the prosecutor ; but 
 I do not know that it has ever been decided that it is necessary to 
 allege a greater degree of force in an indictment at common law for 
 a forcible entry than in an indictment on the statutes. . . . It is 
 alleged that twelve persons with force and arms and with a strong 
 hand violently entered into a certain mill and lands and houses and 
 expelled the prosecutor; whether or not these facts will be proved is 
 another question; but if they be proved as laid, God forbid that it 
 should not be an indictable offense !"*^^ 
 
 By the principles of the common law, some degree of force is allowed 
 in expelling an intruder into a man's lands or tenements, who refuses 
 to quit, although he has no right to the possession. The owner is not 
 justified to use such a degree of force, as would tend to a breach of 
 the peace, but he is allowed to use such force as would sustain a 
 plea of justification of molliter mantis imposuit.'^''* A landlord, 
 having the right of immediate possession, may take it without legal 
 process if he can do so peaceably ; but he has no right forcibly to re- 
 move his tenant's goods or commit an assault on him in so doing. If 
 he does he is liable criminally.'*'^^ 
 
 public peace, it was thought neces- maintained with force, with vio- 
 
 sary by several statutes to restrain lence, and with unusual weapons." 
 all persons from the use of such *" Rex v. Wilson, 8 Term R. 357. 
 violent methods, even of doing them- ''' Fifty Associates v. Howland, 5 
 
 selves justice, and much more if Cush. (Mass.) 214; Spencer v. Com- 
 
 they had no justice in their claim, mercial Co., 30 Wash. 520, 71 Pac. 
 
 So that the entry now allowed by 53. 
 
 law is a peaceable one; that forbid- "''Commonwealth v. Haley, 4 Al- 
 
 den is such as is carried on and len (Mass.) 318. 
 
 Jones L & T.~4(?
 
 § 557] TERMINATION OF TENANCY. 626 
 
 It is the object of the statutes relative to forcible entry and de- 
 tainer not only to prevent and punish the forcible entry of those 
 having no right of entry, but also of those who, having a right of 
 entry given by law, make entry "with strong hand,'^ or "with multi- 
 tude of people." The right to the possession of the premises is not 
 in issue in an action for forcible entry and unlawful detainer. If it 
 be found that at the time of the alleged forcible entry the plaintiff 
 had the actual and peaceable possession and the defendants unlawfully 
 detained the premises, the plaintiff is entitle to recover rents and 
 profits during the time of the. unlawful detainer.^^^ 
 
 A tenant peaceably in possession, who uses no force and threatens 
 none, but refuses to leave until obliged to by law, is not guilty of a 
 forcible detainer of the leased premises.*^^ But it has been held that 
 a landlord may by force eject a tenant who, after the termination of 
 his tenancy, retains possession of the tenement, and that, in such a 
 case, the only question of importance as to the tenancy is whether it 
 has or has not in fact terminated. The tenant's good faith, or belief 
 in a right to retain possession is immaterial. There is no distinction 
 between an undoubted trespasser and one who holds possession under 
 a color and reasonable claim of right, which changes the legal aspect 
 of the case. The tenant is either a trespasser or he is not. If he is, 
 neither his belief that he is not nor the fact that he holds "under a 
 color and reasonable claim of right" is of any importance. If this 
 were not so, it would be in the power of any one in the wrongful 
 possession of real estate who believes his possession to be rightful, to 
 compel the person who is legally entitled to possession to resort to 
 an action at law to recover it, thus nullifying the right of the owner 
 to expel the trespasser.*^* 
 
 § 557. A forcible entry, within the meaning of the forcible entry 
 and detainer act, is one accompanied with some circumstance of force 
 or violence to the person, or one accomplished in a riotous or tumul- 
 tuous manner endangering the public peace. An entry which has no 
 other force than that implied in every trespass is not within the 
 statute.*^® The word "force" as here used, means "actual force" as 
 
 *^«Roff V. Duane, 27 Cal. 565, 570. Me. 546, 550; Willard v. Warren, 17 
 
 *"Appleton V. Buskirk, 67 Mich. Wend. (N. Y.) 257; Foster v. Kel-| 
 
 407, 34 N. W. 708. sey, 36 Vt. 199, 201, 84 Am. D. 676; 
 
 "« Allen V. Kelly, 17 R. I. 731, 24 Evill v. Conwell, 2 Blackf. (Ind.) 
 
 Atl. 776. 133, 18 Am. D. 138; Smith v. Detroit. 
 
 «» Smith V. Reeder, 21 Ore. 541, &c. Ass'n, 115 Mich. 340, 73 N. W., 
 
 28 Pac. 890; Dunning v. Finson, 46 395.
 
 627 RESTORATION OF POSSESSION TO LANDLORD. [§ 558 
 
 contradistinguished from "implied force." Any entry requires force, 
 in the literal sense of the term, but that could not have been meant 
 by the statute, for it would involve an absurdity. ISTor does it mean 
 that force which the law implies where a peaceable entry is made by 
 one having no right to enter. The conclusion may therefore be drawn 
 that the force which the sratute inhibits is actual force.**" The 
 statute was not intended to apply to a mere trespass, however wrong- 
 ful. The entry or detainer must be riotous, or personal violence must 
 be used, or in some way threatened, or the conduct of the parties 
 guilty of the entry or detainer must be such as in some way to inspire 
 terror or alarm in the persons evicted or kept out. In other words, 
 the force contemplated by the statute is not merely the force used 
 against or upon the property, but force, used or threatened, against 
 persons as a means or for the purpose of expelling or keeping out the 
 prior possessor.**^ There must be at least apparent violence, or some 
 unusual weapons, or the parties attended with an unusual number of 
 people; some menaces, or other acts giving reasonable cause to fear 
 that the party making the forcible entry will do some bodily hurt to 
 those in possession if they do not give up the same.**^ If there is no 
 more force used than is implied in every trespass, with nothing to 
 excite fear of personal violence, the case is not within the statute; 
 and therefore the forcing open an outer door of a dwelling house, in 
 a peaceable manner, is not of itself sufficient to constitute a forcible 
 entry within the meaning of the statute.*^^ 
 
 § 558. Civil liability of landlord regaining possession by force. 
 
 It may be stated as a general rule that though an entry by force 
 might subject a landlord to penalties for a breach of the law crim- 
 inally, it confers no right of action on the tenant thus holding without 
 any right of possession.*** The distinction between the civil rights 
 
 *^Fort Dearborn Lodge v. Klein, (Mass.) 147; Stearns v. Sampson, 
 
 115 111. 177, 191, 3 N. E. 272, 56 Am. 59 Me. 568; Pendill v. Union Min. 
 
 R. 133. Co., 64 Mich. 172, 31 N. W. 100; 
 
 *" Shaw V. Hoffman, 25 Mich. 162. Smith v. Detroit Loan & Bldg. Ass'n, 
 
 ^'^ Commonwealth v. Shattuck, 4 115 Mich. 340, 73 N. W. 395; Jack- 
 
 Cush. (Mass.) 141,145. son v. Farmer, 9 Wend. (N. Y.) 201; 
 
 '^ Smith V. Reeder, 21 Ore. 541, Hyatt v. Wood, 4 Johns. (N. Y.) 
 
 28 Pac. 890; Frazier v. Hanlon, 5 150; Ives v. Ives, 13 Johns. (N. Y.) 
 
 Cal. 156; Commonwealth v. Dudley, 235; Freeman v. Wilson, 16 R. I. 
 
 10 Mass. 403; Gray v. Finch, 23 524; Mussey v. Scott, 32 Vt. 82; Vin- 
 
 Conn. 495; Hendrickson v. Hen- son v. Flynn, 64 Ark. 453, 43 S. W. 
 
 drickson, 12 N. J. L. 202. 146, 46 S. W. 186; Miner v. Stevens, 
 
 '"Meader v. Stone, 7 Mete. 1 Cush. (Mass.) 482, 485; Low v.
 
 §■ 558] TEEMIXATIOX OF TEXAXCY. 628 
 
 of a person forcibly turned out of the possession of land, and the 
 penal sanctions by which he is protected from being forcibly dispos- 
 sessed, are drawn in a marked way in the cases in the old books re- 
 lating to the statutes of forcible entry. Although by those statutes 
 all forcible entries were prohibited, even by those who had title to 
 enter, yet the party dispossessed could maintain no action on the 
 statutes.**^ If an action of trespass had been brought, the landlord 
 could have justified under a plea of liherum tenementum. For enter- 
 ing with a strong hand to dispossess the tenant by force, the land- 
 lord may be indicted for a forcible entry, but there can be no doubt 
 of his right to enter at the expiration of the term. There is not the 
 slightest pretence for considering him as a trespasser.*^® It would 
 put an end to the enjoyment of property to hold that trespass quare 
 clausum fregit could be maintained against the owner, with right 
 of possession, who merely takes possession of what is his own.'*^^ The 
 party entitled to the possession of leased premises has a right to take 
 it in any manner not constituting a breach of the peace, and it never 
 was the design of the legislature to take away this right by the 
 statute relative to forcible detainer.**^ After a landlord, entitled to 
 reenter for condition broken, has taken possession peaceably in the 
 absence of his tenants from the premises, he has the right to protect 
 his possession by force, if necessary, as well against his former ten- 
 ants as against any one else proposing to take possession without 
 right. A clearer case of a landlord's right to use force can scarcely 
 be stated than where a legal possession has been gained, and force 
 is only employed to defend it,"*^^ It seems to be fully settled by the 
 weight of judicial authority that, when a tenancy has been legally 
 
 Elwell, 121 Mass. 309; Fuhr V. Dean, *" Mueller v. Kuhn, 46 111. App. 
 
 26 Mo. 116, 69 Am. Dec. 484; Over- 496; Hoots v. Graham, 23 111. 81; 
 
 deer v. Lewis, 1 W. & S. (Pa.) 90; Ostatag v. Taylor, 44 111. App. 469; 
 
 Johnson v. Hannahan, 1 Strob. (S. Frazier v. Caruthers, 44 111. App. 
 
 Car.) 313; Tribble v. Frame, 7 J. J. 61; Eichengreen v. Appel, 44 111. 
 
 Marsh. (Ky.) 599; Walton v. File, App. 19; Brooke v. O'Boyle, 27 111. 
 
 1 Dev. & B. L. (N. Car.) 567; Beech- App. 384; Fort Dearborn Lodge v. 
 
 er V. Farmele, 9 Vt. 352; Yale v. Klein, 115 111. 177, 3 N. E. 272. 
 
 Seely, 15 Vt. 221; Hodgeden v. Hub- *"» Pendill v. Union Min. Co., 64 
 
 bard, 18 Vt. 504. Mich. 172, 31 N. W. 100. 
 
 *^ Newton v. Harland, 1 M. & G. *''Winn v. State, 55 Ark. 360, 18 
 
 644, 39 E. C. L. 952; Pike & Has- S. W. 375; Towell v. Etter, 69 Ark. 
 
 sen's Case, 3 Leon. 134, 143; Co. 34, 59 S. W. 1096, 63 S. W. 53; 
 
 Lit. 576. Mussey v. Scott, 32 "Vt. 82. See 
 
 *'* Taunton v. Costar, 7 Term R. also, Sharp v. Kinsman, 18 S. Car. 
 
 427; Harvey v. Brydges, 14 M. & W. 108. 
 437.
 
 629 EESTOKATION OF POSSESSION TO LANDLORD. [§ 559 
 
 determined, the landlord may enter peaceably Tipon the premises; 
 thus entering he may remove the tenant therefrom, using such force 
 as would sustain a plea of molUter manus imposuit; if the tenant, 
 after a sufficient opportunity, neglects to remove his goods, the land- 
 lord may do so, using care in their removal and depositing them in a 
 near and convenient place.*®" 
 
 Where the statutory remedy for forcible ejection from land is a civil 
 action of forcible entry and detainer, there is no other remedy but 
 what is afforded by those acts, and the evicted party cannot bring tres- 
 pass.*®^ The landlord's title and right to possession are a complete 
 Justification for his entry upon the land, and the tenant as against 
 him has no right of occupation whatever. Having obtained posses- 
 sion by an act of which the tenant has no right to complain, he can- 
 not be liable to an action for the incidental act of expulsion to which 
 he is obliged to resort because of the tenant's unlawful resistance.*®^ 
 
 A lessor, though out of possession, may enter under the protection 
 of a statute relative to liens to give or post an original notice that his 
 interest is not bound by the lien. Such an entry is not an unlawful 
 invasion of the rights of the tenant or a trespass. No wrong or in- 
 jury is inflicted on the tenant or his property. The landlord enters 
 by necessity, and under the authority of law to protect his interest in 
 the reversion. In such case no action lies.*®^ 
 
 § 559. Trespass for assault and battery against landlord. — A land- 
 lord, who having peaceably entered after the termination of the 
 tenancy, proceeds, against the tenant's opposition, to take out the 
 windows of the house, or to forcibly eject the tenant, is not liable to 
 an action for an assault, if he uses no more force than is necessary 
 for the purpose.*®* Furthermore, American cases of the greatest 
 weight support the opinion that a person who has ceased to be a tenant, 
 or to have any lawful occupancy has no greater right of action when 
 
 *°» Stearns v. Sampson, 59 Me. 568; 26 Mo. 116; People v. Leonard, 11 
 
 Cunningham v. Horton, 57 Me. 420; Johns. (N. Y.) 504, 509. 
 
 Allen v. Blcknell, 36 Me. 436; Cur- ^"^ Smith v. Reeder, 21 Ore. 541, 
 
 tis V. Galvin, 1 Allen (Mass.) 215; 28 Pac. 890, 15 L. R. A. 172. 
 
 Mugford V. Richardson, 6 Allen *^^ Congdon v. Cook, 55 Minn. 1, 
 
 (Mass.) 76; Smith v. Reeder, 21 56 N. W. 253; Brown v. Beatty, 
 
 Ore. 541, 28 Pac. 890. 34 Miss. 227, 69 Am. R. 389. 
 
 '"Vinson v. Flynn, 64 Ark. 453, '°' Mugford v. Richardson, 6 Allen 
 
 43 S. W. 146, 46 S. W. 186; Krevet (Mass.) 76; Winter v. Stevens, 9 
 
 V. Meyer, 24 Mo. 107; Fuhr v. Dean, Allen (Mass.) 526; Stone v. Lahey, 
 
 133 Mass. 426.
 
 §' 559] TERMINATION" OF TEXAXCY. 630 
 
 the force exerted against his person is contemporaneous with the land- 
 lord's forcible entry npon the premises.*^^ 
 
 On the other hand, there is a line of cases requiring the entry of the 
 landlord must be a peaceable one and unaccompanied by force or 
 violence.*®^ Furthermore, the rule allowing forcible retention of a 
 possession gained by peaceable entry has no application where the 
 rights of the parties are in litigation and dispute. A landlord entitled 
 to possession has no right in defiance of the law, and in contempt of 
 the court in which his proceedings to obtain possession are pending, 
 to take the matter into his own hands and by force and violence eject 
 the tenant.''" 
 
 If a landlord is entitled by law to the possession of premises, he has 
 a right to enter peaceably into the possession thereof, and the tenants 
 have no right to remove him by force. If in doing so they make an 
 assault on him that is unlawful, he has a right to resist such assault 
 by force sufficient to repel it, and, if using no more force than is neces- 
 sary to repel the assault, he is not liable to the tenants in an action for 
 assault and battery.*®® 
 
 Formerly in Massachusetts there were some general dicta to the 
 effect that trespass for an assault would lie against a landlord for an 
 assault committed in the course of making a forcible entry.*®® But 
 since then the general doctrine that expulsion was mere aggravation 
 in trespass quare clausum and answered by plea of title has been de- 
 clared,^*"' and the right to expel with necessary force has been af- 
 firmed. ^°^ Clearly therefore no civil action is maintainable in Massa- 
 chusetts by inference from the general prohibition of the statute 
 against forcible entries. 
 
 *'=Eames v. Prentice, 8 Gush. 88 N. W. 426; Bristor v. Burr, 120 
 
 (Mass.) 337; Curtis v. Galvin, 1 Al- N. Y. 427, 24 N. E. 937. 
 
 len (Mass.) 215; Low v. Elwell, 121 ^=" Gillespie v. Beecher, 85 Mich. 
 
 Mass. 309; Jackson v. Farmer, 9 347, 48 N. W. 561; Ayres v. Birtch, 
 
 Wend. (N. Y.) 201; Overdeer v. 35 Mich. 501; Lobdell v. Keene, 85 
 
 Lewis, 1 W. & S. (Pa.) 90; Kellam Minn. 90, 88 N. W. 426. 
 
 V. Janson, 17 Pa. St. 467; Stearns ^'^ Sampson v. Henry, 11 Pick 
 
 v. Sampson, 59 Me. 568; Sterling (Mass.) 379; Commonwealth v. Ha- 
 
 V. Warden, 51 N. H. 217. ley, 4 Allen (Mass.) 318. 
 
 496 Fredericksen v. Singer Mfg. ^'^ Merriam v. Willis, 10 Allen 
 
 Co., 38 Minn. 356, 37 N. W. 453; (Mass.) 118. 
 
 Mercil v. Broulette, 66 Minn. 416, 69 ^"^ Pratt v. Farrar, 10 Allen 
 
 N. W. 218; Lobdell v. Keene, 85 (Mass.) 519, 521; Morrill v. De la 
 
 Minn. 90, 88 N. W. 426. Granja, 99 Mass. 383. 
 
 *" Lobdell V. Keene, 85 Minn. 90,
 
 631 KESTORATION OF POSSESSION TO LANDLORD. [§§ 560, 561 
 
 § 560- Where a tenant is legally entitled to possession and the 
 landlord forcibly enters on him, such entry is an interference with the 
 tenant's right to possession for which he is clearly entitled to maintain 
 an action of trespass-^^^ ^ landlord commits a trespass by breaking 
 open a building upon the demised premises during the term of the 
 lease and removing goods even though he has bought the goods.^*^^ 
 A right of entry upon leased premises, by the landlord for one pur- 
 pose will not justify the performance of such acts for another purpose ; 
 nor will the consent of the tenant to an entry for a short time, for 
 necessary repairs, justify extensive alterations requiring the removal 
 of the tenant.^''* A mere trespasser cannot recover damages against 
 a landlord who removes an obstruction he has wrongfully placed upon 
 the real estate of the landlord, simply because it was the tenant who 
 should have removed the obstruction. If the landlord chooses to pro- 
 tect the tenant in his possession, a mere trespasser cannot complain. 
 Whether the landlord entered rightfully upon the tenant's possession 
 is a question between the landlord and the tenant with which others 
 are not concerned.^"^ 
 
 § 561. The rule allowing the use of force to recover possession of 
 real estate, which makes the landlord a law unto himself, is not con- 
 ducive to good business principles or to good order, and for that 
 reason is not looked upon with favor in all quarters. Where state 
 statutes provide a speedy, adequate and orderly method for a land- 
 lord to obtain possession of his property upon failure of the tenant 
 to pay rent, or upon failure to perform any other condition or cove- 
 nant contained in the lease, such statutes have been held to provide 
 an exclusive remedy, nothwithstanding an agreement permitting pos- 
 session to be taken by force.^°« The Colorado statute takes away the 
 right that existed at common law to make entry by force, although 
 the right to possession may exist. Yet a license reserved in the lease 
 to make such an entry does not contravene the statute, and under 
 such a provision the landlord may enter and remove a tenant upon 
 condition broken, if he use no unnecessary force to accomplish his 
 purpose.^"^ In Connecticut the law was declared to be that a posses- 
 
 ""' Green v. Hammock, 13 Ky. L. ^"^Ebersol v. Trainor, 81 111. App. 
 
 R. 145. 645. 
 
 """ Shores v. Brooks, 81 Ga. 468, =~ Spencer v. Commercial Co., 30 
 
 8 S. E. 429. Wash. 520, 71 Pac. 53; McClellan 
 
 '"'^Dwyer v. Carroll, 86 Cal. 298, v. Gaston, 18 Wash. 472, 51 Pac. 
 
 24 Pac. 1015; Shiffer v. Broadhead, 1062. 
 
 126 Pa. St. 260, 17 Atl. 592. "^o' Goshen v. People, 22 Colo. 270, 
 
 44 Pac. 503.
 
 § 561] TERMINATION OF TENANCY. 633 
 
 sion, commenced under a tenancy, cannot be put an end to in fact 
 by forcibly removing the tenant without process.^"^ It has been held 
 in that state that a plea of liberum tenementum was not a good plea 
 in an action of trespass for a forcible entry by a landlord.^"® As such 
 act is directly prohibited, the act itself is made unlawful, even if it 
 were not already so at common law, and it therefore follows that a 
 landlord under such circumstances, though he has a right of entry, 
 must in order to reinvest himself with the lawful possession of the 
 premises, held over by his tenant, exercise his right of reentry peacea- 
 bly, and that he cannot found a legal right to remove the tenant 
 upon the illegal act of a forcible possession.^^" Furthermore there is 
 no distinction between a forcible retaking possession of premises 
 where a party is resisted and resistance is overcome by superior force, 
 and a quiet, peaceable reentry. Unless a party has a right to retain 
 possession by force and strong hand when he has once acquired it 
 peaceably in the temporary absence of another party, the right would 
 be valueless. It could hardly be called a right, if he must leave as 
 peaceably as he entered, upon the return and demand of the other 
 party. If the landlord has the right to retain possession by force a 
 conflict would immediately ensue in which the superior force would 
 prevail, and it matters not whether that conflict arises in the first 
 - instance, or after one of the contestants has got into possession by 
 stealth, in the temporary absence of the other. The statute of forcible 
 entry and detainer is against the right of the landlord to regain pos- 
 session by force.^^^ 
 
 In Illinois the court considered the English authority equally bal- 
 anced on this question and the American cases conflicting, and, rely- 
 ing on a Vermont case, which has subsequently been overruled, held 
 that an action for damages could be maintained against a landlord 
 for forcible entry.^^^ The Illinois court is consistent, and considers 
 that any violent entry, even after the tenant has abandoned the 
 premises, is equally within the prohibition of the statute and subjects 
 the landlord to an action of trespass. Although it is true that courts 
 will not lend their aid to enforce a contract to accomplish something 
 prohibited by law, an agreement authorizing an entry on certain 
 premises, without liability as a trespasser in case force should be re- 
 
 ^o^ Larkin v. Avery, 23 Conn. 304. overruled by Mussey v. Scott, 32 Vt. 
 
 ^"^ Bliss V. Bange, 6 Conn. 78. 82. 
 
 ^"Larkin v. Avery, 23 Conn. 304, =" Page v. DePuy, 40 111. 506; 
 
 310. Reeder v. Purdy, 41 111. 279; Dear- 
 
 "^ Mason v. Hawes, 52 Conn. 12. love v. Herrington, 70 111. 251; 
 
 "1^ Dustin v. Cowdry, 23 Vt. 631, Briggs v. Roth, 28 111. App. 313.
 
 633 KESTOEATION OF POSSESSION TO LANDLORD. [§ 5C3 
 
 quired to obtain possession, is not an agreement to do an unlawful 
 act. A party acting under such an agreement would still be liable 
 criminally for breach of the peace, but he would not be liable in a 
 civil action for assault, and battery.^ ^* In such case the fact that the 
 landlord had instituted an action of forcible detainer against his ten- 
 ant would not operate to deprive him of his right to make entry un- 
 der the agreement in the lease. ®^^ For a mere unlawful entry by a 
 landlord upon leased premises after the expiration of the tenancy, 
 unaccompanied by a trespass to the person or to personal property, 
 only nominal damages can be recovered, because the tenant has no 
 longer a legal right to possession.^ ^^ But it is, nevertheless, a tres- 
 pass for an owner to enter upon premises in the actual possession of 
 an occupier, although such occupier is a tenant wrongfully holding 
 over.^^^ A tenant, returning after a temporary absence, has a right to 
 force an entrance against his landlord, who has taken possession in 
 the meantime.^^® 
 
 § 562. Forcible entry and detainer distinguished from summary 
 process. — In many states the remedy of a person on whom there has 
 been a forcible entry and of a landlord whose tenant refuses to yield 
 up possession is embodied in the same act. But they are, nevertheless, 
 distinct remedies applying to different classes of persons. Thus, in 
 Massachusetts the action of forcible entry and detainer has, by stat- 
 ute, been so extended that there are two cases in which the right to 
 possession may be tried in it. The relation of landlord and tenant 
 is such that it was deemed advisable to give to a landlord a summary 
 process by which to eject a tenant after the determination of the ten- 
 ant's estate; and so, for a long series of years, it has been the law 
 of this Commonwealth that this writ might be used for the purpose 
 of restoring to his possession a landlord whose tenant is holding his 
 estate after his right to hold it has ceased. Although this writ is 
 used, and the process is frequently called a process of forcible entry 
 and detainer, yet it is not strictly a process of forcible entry and de- 
 tainer, but it is given as a remedy to a landlord whose tenant holds 
 without right, whether by force or not ; but in such case it is always 
 limited to the case of a tenant, for, the tenancy having been proved, 
 the title of the landlord could not be brought in question, and the 
 
 "* Ambrose v. Root, 11 111. 497; "^Wright v. Mahoney, 61 111. App. 
 Fabri v. Bryan, 80 111. 182. 125. 
 
 "^ Fabri v. Bryan, 80 111. 182. "' Chapman v. Cawrey, 50 111. 512. 
 
 "''Kurrus v. Seibert, 11 111. App. 
 319; Reeder v. Purdy, 41 111. 279.
 
 §! 563a] TERMINATION OF TENANCY. 634 
 
 only issue which could be tried is whether the rights of the tenant 
 under his lease had expired. In ease of forcible entry on one in peace- 
 able possession, unless the entry or detainer is accompanied by an 
 actual breach of the peace, the course of legislation has made the 
 process substantially a civil proceeding, and has prescribed the form 
 of writ or complaint and declaration which any private party may sue 
 out before the proper justice; and by incorporating into the statute 
 the right to recover by the same process lands unlawfully held by a 
 tenant against his landlord, the statute, as a statute of forcible entry 
 and detainer, simply seems encumbered with some anomaly.^^^ 
 
 § 562a. Statutes relative to actions of summary process for the re- 
 covery of possession by a landlord confer new rights and prescribe a 
 remedy by a course of proceeding unknown to the common law. They 
 confer a special power over a subject, and prescribe a specific mode 
 for its exercise. The law is well settled that in such case the mode 
 prescribed, especially as respects jurisdiction, must be strictly pur- 
 sued, whether the tribunal upon which the power is conferred be of 
 superior or inferior jurisdiction.^^*' 
 
 The object of such acts has been declared to be to afford a sum- 
 mary relief, and avoid the expense and delay attendant upon the 
 prosecution of an action of ejectment. They are designed as statutes 
 for relief, not to create new causes of action. The evident intention 
 is to give this summary relief in those cases where for breach of such 
 stipulations the action of ejectment would lie. This throws every 
 case upon tha ground where the matter rests at common law, the 
 statute having simply the effect of affording a speedy and summary 
 restitution of the premises in cases where the party would otherwise 
 be under the necessity of resorting to an action of ejectment. Any 
 other construction would be manifestly unjust and inequitable, for 
 if such proceedings could be maintained for the breach of any and 
 every stipulation in a lease, the lessee might be deprived of the prem- 
 ises for the non-performance of an unimportant stipulation in the 
 lease.^2^ Where a tenant, acting within his lawful rights, admitted 
 another as his sub-tenant to hold until his lease should expire, the 
 sub-tenant's obtaining of possession is peaceable and lawful, and his 
 refusal to surrender after proper demand made, brings the case 
 
 "^Hodgkins v. Price, 132 Mass. Cohen v. Barrett, 5 Cal. 195; Staf- 
 
 196. tord V. Ingersol, 3 Hill (N. Y.) 38; 
 
 ""Haywood v. Collins, 60 111. 328; Renwick v. Morris, 73 Hill (N. Y.) 
 
 Burns v. Nash, 23 111. App. 552; 575. 
 Cooper V. Sunderland, 3 Iowa 114; "' Hadley v. Havens, 24 Vt. 520. 
 
 4
 
 635 RESTORATION" OF POSSESSION TO LANDLORD. [§ 563 
 
 squarely within the conditions of unlawful detainer as defined by the 
 Arkansas code, so that the landlord would be entitled to maintain 
 summary process to recover possession.^^^ The name by which this 
 summary process is commonly known is an action for unlawful de- 
 tainer. 
 
 § 563. The action of unlawful detainer can be maintained only 
 where the relation of landlord and tenant subsists between the 
 parties to the action, and hence it becomes material to determine 
 whether parties stand in that relation to each other.^^^ While it is not 
 necessary to show an express demise or letting of lands to sustain the 
 action, the facts must show, impliedly at least, that the defendant 
 occupies as tenant of the plaintiff, and this must be something more 
 than a mere quasi tenancy. It is sometimes said that one who is in 
 possession of lands under a contract for a sale is a tenant at will to 
 the owner. This is true in a restricted sense only. He is a tenant at 
 will just as a mortgagor after condition broken is a tenant at will of 
 the mortgagee. He may be deprived of the possession if it can be done 
 peaceably, or may be evicted in an action of ejectment. The mort- 
 gagor is not a tenant within the meaning of the unlawful detainer 
 act, however.^2* The conventional relation of landlord and tenant 
 means the relation created by convention or agreement between the 
 parties.^25 rpj^^ ^^ggg ^^.^ numerous in which a summary remedy has 
 been refused because the contract or circumstances under which the 
 owner of premises permitted another to take possession of them con- 
 templated some condition or consideration apart from rent, or a ten- 
 ancy at the mere sufferance or will of the owner. ^^e yet a grantee of 
 the landlord could maintain an action of summary process to recover 
 possession from a tenant of the latter, and under a code provision 
 giving this right to "a person to whom real property is transferred or 
 devised" it was held that a lessee for a term of years from a land 
 owner could maintain the process against a former tenant from month 
 
 ^^ Winkler v. Massengill, 66 Ark. ertson v. Sutton, 5 Wend. (N. Y.) 
 
 145, 49 S. W. 494. 281. 
 
 "'Mason v. Delancy, 44 Ark. 444; "'Benjamin v. Benjamin, 5 N. Y. 
 
 Buel v. Buel, 76 Wis. 413, 45 N. W. 383. 
 
 324; Matthews v. Matthews, 49 Hun "«Dolittle v. Eddy, 7 Barb. (N. 
 
 (N. Y.) 346; Roach v. Cosine, 9 Y.) 74; People v. Annis, 45 Barb. 
 
 Wend. (N. Y.) 227; Greer v. Wilbar, (N. Y.) 304; Haywood v. Miller, 3 
 
 72 N. Car. 592; Johnson v. Hauser, Hill (N. Y.) 90; Russell v. Russell, 
 
 82 N. Car. 375. 32 How Pr. (N. Y.) 400; Williams 
 
 "'Mason v. Delancy, 44 Ark. 444; v. Bigelow, 11 How. Pr. (N. Y.) 83; 
 
 Necklace v. West, 33 Ark. 682; Bv- Sims v. Humphrey, 4 Denio (fJ. Y.) 
 
 185.
 
 I 563] TEEMINATION OF TENANCY. 636 
 
 io month, even without attornment.^^'' The title to real estate cannot, 
 however, be litigated in this form of action. ^^^ Many statutes con- 
 ferring jurisdiction upon justices of the peace to try actions of forcible 
 entry and detainer expressly inhibit all inquiry into the merits of the 
 title; and decisions are uniform to this effect that title is not within 
 the issue involved in this action. The thing that is involved is such 
 right of possession between the parties to the record as may be worked 
 out and adjudged aside and apart from all considerations of title. 
 The action is maintainable by any one entitled to the immediate pos- 
 session against any one unlawfully withholding possession where the 
 relation of landlord and tenant exists between the parties.^^^ This 
 form of proceeding has been declared by courts in another state to be 
 possessory only, and not to involve title.^^" Obviously, it can be 
 brought only in the cases specified in the statute,^^^ and therefore it 
 will not lie against one who has entered under a lease valid for one 
 year and holds under a contract enforceable in equity against the 
 plaintiff as a lease for a longer period.^^^ In Georgia the remedy for 
 recovery of land from a tenant holding over is available in favor of a 
 vendee of the original landlord.^^^ In California it may be brought 
 by the executor of a deceased lessor.^^* Formerly in Missouri, where 
 the person having the legal right to possession had never himself been 
 in possession, he could not maintain an action of forcible entry and 
 detainer, or of unlawful detainer, but was put to his ejectment.^^* 
 But this rule has been changed by a statute giving heirs, devisees, 
 grantees and assigns the same remedies to which the ancestor, devisor, 
 grantor or assignor was before entitled to.^^® 
 
 It would, however, be no answer or legal defense to a proceeding 
 instituted by a landlord to obtain restitution of the possession of 
 premises that he had made a contract of lease of them to another to 
 commence on the day following the expiration of the former term. 
 
 «" McDonald v. Hanlon, 79 Cal. "=Lobdell v. Mason, 71 Miss. 937, 
 
 442, 21 Pac. 861. 15 So. 44. 
 
 ^^ Hoffman v. Clark, 63 Mich. 175, "' Morrow v. Sawyer, 82 Ga. 226, 
 
 29 N. W. 695. 8 S. E. 51. 
 
 ^=»Nicrosi v. Phillipi, 91 Ala. 229, =^* Knowles v. Murphy, 107 Cal. 
 
 8 So. 561; Welden v. Schlosser, 74 107, 40 Pac. 111. See, Reay v. Cotter, 
 
 Ala. 355; Houston v. Farris, 71 Ala. 29 Cal. 168. 
 570. '''^ L'Hussier v. Zallee, 24 Mo. 13; 
 
 =^° Spears v. McKay, Walker McCartney v. Alderson, 45 Mo. 35. 
 (Miss.) 265; Lorring v. Willis, 4 ■^5° Kelly v. Clancy, 15 Mo. App. 
 
 How. (Miss.) 383. 519. 
 
 ^^McCorkle v. Yarrell, 55 Miss. 
 576.
 
 637 RESTORATION OF POSSESSION TO LANDLORD. [§ 564 
 
 Under this contract the landlord would be bound to give possession of 
 the premises, and would therefore be entitled to maintain proceedings 
 under the code to oust the tenant wrongfully holding over.^^^ 
 
 According to the general doctrine which precludes a lessee from 
 denying his lessor's title, the existence of the relation of landlord and 
 tenant eliminates all dispute as to title, and even in a Jurisdiction 
 where an exception is made to the general doctrine, such exception 
 was held not to apply in an action of unlawful detainer, and the lessee 
 in that action was not allowed to dispute his landlord's title.^^® 
 
 § 564. Statutory penalty for holding over. — Punishment for a 
 tenant who wrongfully holds over was provided by the Statute of 
 4 George II, ch. 38, which was a remedial statute with a penalty at- 
 tached, to be given to the party grieved. ^^^ By this statute the penalty 
 which the landlord is entitled to recover by action of debt, is double 
 the yearly value of the lands, tenements or hereditaments so detained, 
 for so long time as the same are detained. It is the double value, not 
 the double rent, which is recoverable, for in some cases double rent 
 would be of no value at all.^*° It is clearly the yearly value which is 
 to be ascertained, and double that is what the statute allows to be re- 
 covered.^*^ But under the language of the English acts the penalty 
 or forfeiture ceases whenever the possession is restored to the landlord 
 and the courts have so determined.^*- In Alabama the wording of the 
 statute is different, the precise language being that the tenant so hold- 
 ing over "is liable for double the amount of the annual rent agreed 
 to be paid under such contract." It is not "so long as the tenant con- 
 tinues to hold over," or "so long as the lessor is kept out of posses- 
 sion," or "at the rate of double the agreed rent," and it must be sup- 
 posed that this difference in wording was intentional, so that no room 
 is left for interpretation. The clause in the statute which secures to 
 the landlord the right to recover "such other special damage as may 
 be thereby sustained" seems to be framed with special reference to a 
 loss of other tenants caused by such delay. So the only answer to the 
 argument of hardship on the tenant is to say that the court must deal 
 with the statute as it is.^*^ 
 
 ""Gelston v. Sigmund, 27 Md. 345. =" Timmins v. Rowlinson, 3 Burr. 
 
 ^'^Knowles v. Murphy, 107 CaL 1603. 
 
 107, 40 Pac. 111. ''"Cobb v. Stokes, 8 East 358; 
 
 '''" Wilkinson v. Colley, 5 Burr. Lloyd v. Rosbee, 2 Camp. 453. 
 
 2694; Cross v. McClenahan, 54 Md. "^ Ullman v. Herzberg, 91 Ala. 458, 
 
 21. 8 So. 408. 
 
 ■^Alex. Brit. St. 711.
 
 § 565] TEEMINATIOX OF TEXAXCY. 638 
 
 Resort cannot be made to equity, because the statute provides a 
 remedy by -which the penalty may be recovered. That remedy is "hj 
 action of debt," and it is the only mode provided by which the party 
 aggrieved may get the benefit of its provisions. Special remedies, and 
 more particularly extraordinary ones, and of a penal nature, must be 
 specially and strictly pursued. Action of debt being the form of action 
 prescribed for the recovery of the penalty, the facts necessary to the 
 recovery must be established in that way. In invoking the aid of a 
 court of equity to enforce the penalty given by the statute, a party 
 would be going to a tribunal that never enforces a penalty and often 
 relieves against one.^** 
 
 Consent by a landlord to his tenant's holding over for a short period 
 would not be a waiver of his right to exact the statutory penalty if the 
 tenant subsequently refused to leave when requested. ^*^ A penal pro- 
 vision of this nature in a lease will not be extended by construction, 
 and if the premises consist of several parcels to be surrendered at 
 different times, the penalty will not attach till the time for the sur- 
 render of the last parcel.^*® 
 
 A clause in a lease providing for a redelivery of the premises, and 
 obligating the lessees to pay the lessor double rent for all such time 
 as they shall hold over the premises after the expiration of the term, 
 does not deprive the lessor of his option to retake the premises at the 
 expiration of the lease. But if the lessor fails to do so, or to make a 
 new agreement with the lessees, it deprives him of the power to do 
 more than recover double rent for the time he permits the lessees to 
 hold over after the expiration of the lease. ^*'^ Such a provision for 
 double rent may be waived by the payment and acceptance of rent on 
 the old terms.^*^ 
 
 § 565. A bill in equity is not the appropriate remedy to obtain 
 possession of premises from a tenant holding over nor to try the title 
 to premises which such a tenant sets up to maintain his possession. 
 In an ordinary case of a tenant holding over after the expiration of' 
 his lease, where no reason is shown why the complainant cannot at 
 once avail himself of the summary remedy given by statute to oust 
 the defendant and to obtain restitution of the premises, or why he 
 
 "* Cross V. McClenahan, 54 Md. 21. "^ Green v. Kroeger, 67 Mo. App. 
 "= Ullman v. Herzberg, 91 Ala. 458, 621. 
 8 So. 408. "' Deaver v. Randall, 5 Mo. App. 
 
 '^'Klingle v. Ritter, 54 111. 140. 297; Wilgus v. Lewis, 8 Mo. App. 
 
 336. u 

 
 639 RESTORATION OF POSSESSION TO LANDLORD. [§ 566 
 
 cannot resort to an action of ejectment, equity will not interfere.'*^ 
 Sucli a bill cannot be maintained on the ground of removing a cloud 
 upon the title, for the reason that it states no title or pretended title 
 which would be apparently good at law without evidence aliunde. 
 Where a bill states nothing but a naked pretense of title, there is no 
 ground for applying to a court of equity to get rid of it because of 
 apprehended injury.^^'' The remedy at law to evict a tenant holding 
 over is complete, and there is no occasion to resort to a court of 
 equity. ^®^ Furthermore, in such a proceeding the court cannot look 
 to the equities of the parties, but must enforce their strict legal rights. 
 The legal rights of parties as defined by the written lease and contract 
 may be asserted, but any rights growing out of an estoppel in pais, 
 which in equity would arrest the assertion of the legal right, must be 
 presented in another form. A court of equity may enjoin the further 
 prosecution of a suit of forcible entry and detainer till the rights of 
 the parties are fully settled in equity, and the equitable estoppel is 
 then made effective in a court of law.°^^ 
 
 § 566. Form of judgment in summary process. — In a proceeding 
 under the Delaware statute to recover possession of demised premises 
 after the end of the term, a verdict for the plaintiff, and that he is 
 entitled to the possession of the premises, and that there be a stay of 
 execution for ten days, is not in accordance with the statute. The 
 statute is mandatory, and prescribes in terms what the judgment shall 
 be — that is, that the plaintiff shall have judgment for the possession 
 of his premises and for his costs.^^^ Where a landlord gets judgment 
 for possession against a tenant, and pending an appeal by the tenant 
 the term claimed by him expires and he vacates the premises, the land- 
 lord is entitled to a judgment for damage, even though he no longer 
 requires a judgment for restoration of possession. On the facts as 
 they were at the time the action was instituted, the complainant was 
 entitled not only to a judgment of restitution, but also to damages 
 and costs. His claim to these was an equitable one on the facts of the 
 case, and nothing was done by him since which detracted from his 
 
 640 Torrent v. Muskegon &c. Co., "^ Daniels v. Edwards, 72 Ga. 196. 
 
 22 Mich. 354; Huff v. Markham, 71 "= St. Louis &c. Yards v. Wiggins 
 
 Ga. 555. Ferry Co., 102 111. 514; Illinois &c. 
 
 '''Ward v. Dewey, 16 N. Y. 519, R. Co. v. Baltimore &c. R. Co., 23 
 
 522; Crooke v. Andrews, 40 N. Y. 111. App. 531. 
 
 547; Palmer v. Rich, 12 Mich. 414; =" Crow v. Cann, 2 Pennew. (Del.) 
 
 Scofield V. City of Lansing, 17 Mich. 208. 
 437.
 
 §■ 567] TERMINATION OF TENANCY. 640 
 
 equities in any particular. The appeal should be tried and determined 
 on its merits. The landlord, if he recovers, will not require process to 
 restore him to possession, but his right to recover his damages and 
 costs is unaffected by that circumstance.^^* Where a landlord can 
 recover no damages on the summary process under the statute by 
 ■which he regains possession, and it is provided by such statute that 
 judgment recovered on that process shall not be a bar to an action for 
 a trespass on the premises thereby recovered, the landlord has the 
 same remedy which was formerly open to a demandant after a recov- 
 ery in a writ of entry, namely, an action of trespass for mesne 
 profits.^^^ An exception in a statute in regard to the right of a tenant 
 to retain possession pending an appeal provided that if the action was 
 brought upon a written lease executed by both parties against a tenant 
 holding over after the expiration of said lease, restitution of the prem- 
 ises should be forthwith. This was held by the Minnesota court to 
 mean expiration in the natural course, and not to apply to a case 
 where the lease expired because of a breach of a covenant not to sub- 
 let. After expiration by lapse of time, the written lease could afford 
 no pretext to the tenant for remaining in possession, while he might 
 have a good defense against the alleged breach of covenants.^ ^^ 
 
 The right and only right of a cestui que trust of a lessee would be 
 through his trustee. He would have no direct claim as tenant upon 
 the landlord, and the landlord would have none against him. He 
 would not be responsible under the lease to deliver up the premises to 
 the lessor at its expiration, but at that time all his rights under it 
 through his trustee would cease, and if he remained it would be only 
 as a tenant at sufferance. So a judgment against the trustee would be 
 a judgment against the cestui, and would authorize the officer to re- 
 move any whose rights were dependent upon the trustee.^^^ 
 
 VI. Emhlements. 
 
 § 567. The term emblements is used to designate not only certain 
 products of the soil, but also the right of a tenant to take and carry 
 away such products after his tenancy has ended. The vegetable chat- 
 tels called "emblenjents" are the corn and other growth of the earth 
 
 "* Peters v. Fisher, 50 Mich. 331, ™ State v. Burr, 29 Minn. 432, 
 
 15 N. W. 496. See, Hebron Church 13 N. W. 676. 
 
 v. Adams, 121 Mass. 257. "^^ Danforth v. Stratton, 77 Me. 
 
 ^' Sargent v. Smith, 12 Gray 200. 
 (Mass.) 426; Raymond v. Andrews, 
 6 Cush. (Mass.) 265. 
 
 ■I 
 11
 
 641 EMBLEMENTS. [§ 567 
 
 which are produced annually, not spontaneously, but by labor and in- 
 dustry, and thence are called "fructus industriales."^^^ The term also 
 denotes the right of a tenant to take and carry away, after his tenancy 
 has ended, such annual products of the land as have resulted from his 
 own care and labor.^^^ Emblements are the away-going crop ; in other 
 words, the crop which is upon the ground and unreaped when the 
 tenant goes away, his lease having determined; and the right to em- 
 blements is the right in the tenant to take away the away-going crop, 
 and for that purpose to come upon the land and do all necessary things 
 thereon. It is the common practice for the crop to be termed the 
 away-going crop and the tenant the off-going tenant.^ ^** No right in 
 respect to emblements arises until the seed is sown, and there is no 
 principle of law by which a tenant could recover the cost of preparing 
 the ground for the reception of the seed.^^^ The lessors of a farm 
 adjoining a river have no right to the driftwood which the lessee hauls 
 upon the farm from the river. The contiguity of the farm to the river 
 gives the lessors no right to the drift which floats upon its surface. 
 The real owner of the wood alone could disturb the lawful possession 
 of him who has acquired it. To the driftwood which came down upon 
 the waters of the river the lessors had no title, and when it was re- 
 covered by the tenant, through his own labor, they could enforce no 
 claim thereto against him. The avails of his labors beyond what he 
 was to do for them would be legally his own.^*^- Crude turpentine, 
 which has formed on the body of the tree, and is usually known as 
 "scrape," is personal property and belongs to the person who has law- 
 fully produced it by cultivation. It is annual product of labor and 
 industry, and although it adheres to the body of the tree, it is not a 
 part of the realty. The turpentine crop may be properly classed with 
 fructus industrial es, for it is not the spontaneous product of the trees, 
 but requires annual labor and cultivation. Upon a similar principle, 
 hops which spring from old roots have long been regarded as emble- 
 ments.^®^ 
 
 "The whole doctrine of emblements," declares the Georgia court in 
 a well-considered case, "was based upon two reasons: (1) upon natural 
 justice and equity; (2) upon grounds of public policy. The substan- 
 tial merit of the first reason assigned is apparent; how public policy 
 
 ^''Reiff V. Reiff, 64 Pa. St. 134. ""Dyer v. Haley, 29 Me. 277. 
 
 ■"^ Black's Law. Diet. ''"'State v. Moore, 11 Ired. L. (N. 
 
 ='° Clark V. Banks, 6 Houst. (Del.) Car.) 70; Lewis v. McNatt, 65 N. 
 584. Car. 63. 
 
 '"Price V. Pickett, 21 Ala. 741. 
 Jones L. & T.— 41
 
 § 568] TERMINATION OF TENANCY. 643 
 
 was subserved by an application of the doctrine is explained by Black- 
 stone when he says : 'The encouragement of husbandry, . . . being 
 a public benefit, tending to the increase and plenty of. provisions, 
 ought to have the utmost security and privilege that the law can give 
 it.' "^"^ Where the reason of the doctrine fails, it has no application, 
 as where a tenant terminates his estate through his own default or 
 misconduct. In such case the law was suffered to apply in all its vigor, 
 whereby a growing crop, until actually severed from the soil, was re- 
 garded as a part of the land itself, and passed accordingly. Before the 
 introduction into the law of the doctrine of emblements, the tenant 
 had no right to the usufruct of the land a single day beyond his term, 
 nor to any profits thereof not arising strictly within the period of his 
 right of occupancy. The doctrine of emblements is based and proceeds 
 solely on the idea that the tenant is justly entitled to gather his crops, 
 even though his term has expired, and without regard to the question 
 whether such crops are to be considered as in the nature of personalty 
 or realty.^*'^ 
 
 However, there is a recognized line of cases holding that annual 
 crops which are the product of industry and care, sown by the owner 
 of the soil, are, while growing and immature, personal property.^** 
 It has been declared that annual crops are regarded, in many respects, 
 • as personal property, liable, indeed, to become part of the realty, if 
 the tenant voluntarily abandons or forfeits possession of the prem- 
 ises.^ ^^ 
 
 § 568. During the continuance of his holding a tenant's right to 
 emblements is undoubted. In the absence of an agreement between 
 the parties to a lease of agricultural land vesting the title to the hay 
 produced thereon in the lessor, the law vests it in the lessee.^^® The 
 kind of hay known as "timothy" is an annual crop, and may therefore 
 be sold as personal property f^^ and if a lease be made of land while 
 such a crop is growing on it, the crop passes to the lessee in the absence 
 of a reservation of it to the lessor."^ Yet it has been held in N'ew 
 
 =" Bagley v. Columbus &c. R. Co., =" Carpenter v. Jones, 63 111. 517. 
 
 98 Ga. 626, 25 S. E. 638, citing 2 Bl. ^"^ Briggs v. Austin, 129 N. Y. 208, 
 
 Comm. 122. 29 N. E. 4; Felch v. Harriman, 64 
 
 ="= Bagley v. Columbus &c. R. Co., N. H. 472, 13 Atl. 418, holding the 
 
 98 Ga. 626, 25 S. E. 638; Kerr on same in regard to appellee. 
 
 Real Prop., §§ 50-51. See, Preston v. ''^ Garth v. Caldwell, 72 Mo. 622, 
 
 Ryan, 45 Mich. 174, 7 N. W. 819. 627. 
 
 ^^•'"Mabry v. Harp, 53 Kan. 398, 36 "" Hosli v. Yokel, 57 Mo. App. 622; 
 
 Pac. 743; Polley v. Johnson, 52 Kan. Tuttle v. Langley; 68 N. H. 464, 39 
 
 478, 35 Pac. 8; Caldwell v. Custard, Atl. 488. 
 7 Kan. 303.
 
 643 EMBLEMENTS. [§ 5G8 
 
 Hampshire that a tenant, where there is no positive agreement dis- 
 pensing with the engagement to cultivate his farm in a husbandlike 
 manner, is bound to spend the hay and other like produce upon it as 
 the means of preserving and continuing its capacity of production.^' ^ 
 By a condition that hay raised upon a leased farm should be consumed 
 on the farm, the tenant's interest in it may be so limited that he can- 
 not convey to a mortgagee a right to remove it and consume it else- 
 where. So if a mortgagee under such circumstances acquired any 
 right by his mortgage, it was a right to consume the hay on the farm, 
 which he abandoned when he refused to exercise it.^'^ Under the Iowa 
 code a mere field cropper for a share of the crop has no right to turn 
 cattle upon the land after the crop is harvested, and in no case has he 
 a right to pasture the land after the first of December.^'^ 
 
 A lease of premises with the right of immediate possession and en- 
 tire enjoyment of the issues and profitB would carry with it the emble- 
 ments unless they were reserved in the lease. So the words in the lease, 
 "and the said lessee is to have and own all crops that are now put in 
 or growing on said premises," would add nothing to the rights of the 
 lessee under the lease. ^'* This must necessarily result from the rules 
 of law that the tenant is vested with all the rights incident of posses- 
 sion, and the use and enjoyment of all the privileges appurtenant to 
 the leased premises, and may maintain an action against any person 
 who disturbs his possession or trespasses on the premises, even though 
 it be the landlord. The latter has no right to enter, during the term, 
 to repair or remove crops, unless he has stipulated in the lease for such 
 right. No one would contend that a crop of grass, growing upon the 
 premises when the lease was executed, does not pass to the lessee, who 
 may lawfully pasture his cattle upon it or harvest it for his own use. 
 The fact that the crop is wheat instead of grass cannot change the 
 rule."^ But in the sale of real estate in fee or for years, the growing 
 crops may be considered by the parties as personal property, and so 
 separated, in contemplation of law, as not to pass by the deed or lease. 
 Parol evidence may be introduced to show that the crop growing on 
 the land at the time when the lease was made was treated and consid- 
 ered as personalty, and not intended to be conveyed by the lease." "^ 
 
 "^Moulton v. Robinson, 27 N. H. ^" Emery v. Fugina, 68 Wis. 505, 
 
 550, 561. 32 N. W. 236; Hisey v. Troutman, 
 
 "= Jewell V. Woodman, 59 N. H. 84 Ind. 115; Baker v. Jordan, 3 Ohio 
 
 520. St. 438; Youmans v. Caldwell, 4 
 
 ™Kyte V. Keller, 76 Iowa 34, 39 Ohio St. 71. 
 
 N. W. 928; Tantlinger v. Sullivan, ^'O Baker v. Jordan, 3 Ohio St. 438, 
 
 80 Iowa 218, 45 N. W, 765. Youmans v. Caldwell, 4 Ohio St. 71. 
 
 "* Edwards v. Perkins, 7 Ore. 149.
 
 § 569] TEEMINATION" OF TENANCY. 644 
 
 § 569. The doctrine of emblements is founded entirely on the un- 
 certainty of the termination of the tenant's estate. Where that is 
 certain, there exists no title to emblements. It is the tenant's own 
 folly to sow when he knows that his term will expire before he can 
 reap.^^'^ This result can only be altered by the custom of the country, 
 or by express agreement between the parties,^^* Biit a custom, to be 
 valid, must be as old as the common law ; according to one theory, it 
 must be immemorial. If a particular custom be proved to be imme- 
 morial, it necessarily excludes the general custom or common law, for 
 two opposite and inconsistent customs cannot have immemorially 
 existed. In the settlement of the United States the colonists brought 
 with them the common law or general customs of England, but none 
 of the particular customs. The common law became the rule of the 
 whole country, and gave the rule to every part of it, and by that law 
 the off-going tenant was not entitled to the way-going crop. Any 
 practice or usage, however general, introduced into this country since 
 its settlement, and in opposition to the common law, can have no force 
 on the ground of custom, because it lacks the essential ingredient of a 
 good custom — it is not immemorial. It is clear that it could not have 
 existed at any time, even as a recent custom, until after the settlement 
 of the country, and after the common law had attached to every part 
 of it. And nobody will contend that a recent usage or practice, however 
 general, will change the common law.^^^ 
 
 In Delaware, certain English authorities have been recognized, and 
 it has been declared by the courts of that state that there has always 
 been a custom, with respect to agricultural holdings, that the tenant, 
 if he sowed in the fall a crop of grain which required for its ripening a 
 period greater than the unexpired time of the lease, should have the 
 right to enter upon the land when it matured and harvest it. The 
 ground upon which it was sowed was treated as being still in the right- 
 ful possession of the tenant, so much so that an action of trespass 
 would lie for him against any one who entered upon it.^®° In Pennsyl- 
 vania, also, a tenant may support an action of trespass qnare clausum 
 f regit against his landlord for an injury done to his way-going crop, 
 
 ^'Dircks v. Brant, 56 Md. 500; ^" Dircks v. Brant, 56 Md. 500. 
 
 Harris v. Carson, 7 Leigh (Va.) '*'" Harris v. Carson, 7 Leigh (Va.) 
 
 632; Mason v. Moyers, 2 Rob. (Va.) 632; Mason v. Moyers, 2 Rob. (Va.) 
 
 606; Howell v. Schenck, 24 N. J. L. 606. 
 
 89; Whitmarsh v. Cutting, 10 Johns. ' ='» Clark v. Banks, 6 Houst. (Del.) 
 
 (N. Y.) 360; Sanders v. Ellington, 584; Citing Johns v. Whitley, 31 
 
 77 N. Car. 255; Hall v. Durham, 117 Wils, 65; Boraston v. Green, 16 East] 
 
 Ind. 429, 20 N. E. 282; Gossett v. 71. 
 Drydale, 48 Mo. App. 430.
 
 6-io EMBLEMENTS. [§ 569 
 
 which belongs to the tenant by a custom of the country after the ex- 
 piration of the lease and after he has removed from the premises.^® ^ 
 For by custom in that state the right to emblements is extended to 
 tenancies for a fixed and determinate period, so far as relates to a 
 crop put in in the fall when the term ends in the following spring. 
 In such cases the tenant has the right to reenter after the expiration 
 of his term to cultivate and remove the crop f^^ and the tenant has a 
 right to the straw as well as to the grain ;^^3 but if a tenant put in a 
 crop in the early spring, when his tenancy is to end the same spring or 
 summer, before the crop can mature, he is not entitled to the crop, 
 which goes to the lessor.^^* 
 
 In New Jersey a tenant is by custom entitled to enter after the ex- 
 piration of his term and reap his way-going crop. The custom is 
 established for the benefit and encouragement of agriculture, and is 
 based upon the principle that he who sows in peace shall reap in peace. 
 Its object is to give the tenant the full benefit of the crops for the year 
 of which he would otherwise be deprived when they do not ripen until 
 after the expiration of the term. The rule does not apply to a spring 
 crop, as of oats, which is regarded as the product of the second year, 
 unless it is expressly provided for by the lease. ^^^ A right conferred 
 by a lease to sow a crop which will not mature till after the termina- 
 tion of the lease carries with it the implied power to enter and harvest 
 the crop at maturity.^*^ A privilege of sowing a crop which would 
 mature after the end of the term would apply after a renewal term as 
 well as after the original term. When it has been ascertained what 
 were the tenant's rights the first year, it is also determined what they 
 were the second and third ; for it is always a presumption that a lease 
 for one year with the privilege of several is to be continued on the 
 same terms, and with precisely the same rights and privileges to the 
 tenant as during the first year.^*'^ 
 
 The rule in regard to a term for years applies to a tenancy from 
 year to year. A tenant from year to year is not entitled to emblements, 
 
 '"Forsythe v. Price, 8 Watts (Pa.) 475, 487; Biggs v. Brown, 2 
 
 (Pa.) 282. S. & R. (Pa.) 14. 
 
 "=Demi v. Bossier, 1 P. & W. '^"'^ Howell v. Schenck, 24 N. J. L. 
 
 (Pa.) 224; Stultz v. Dickey, 5 Binn. 89; Van Doren v. Everitt, 5 N. J. L. 
 
 (Pa.) 285. 460; Corle v. Monkhouse, 47 N. J. 
 
 ''"^Rank v. Rank, 5 Barr (Pa.) Eq. 73, 20 Atl. 367, citing Wiggles- 
 
 211; Craig v. Dale, 1 W. & S. (Pa.) worth v. Dallison. Doug. 201. 
 
 509; Iddings v. Nagle, 2 W. & S. ■''" Hudson v. Porter, 13 Conn. 59; 
 
 (Pa.) 22. Van Doren v. Everitt, 5 N. J. L. 460; 
 
 ^^*Demi v. Bossier, 1 P. & W. Boraston v. Green, 16 East 71. 
 
 (Pa.) 224; Carson v. Blazer, 2 Binn. =" Brown v. Parsons, 22 Mich. 24.
 
 §■ 570] TEEMINATIOX OF TENANCY. 646 
 
 for he cannot be forced to leave unless he has six months' notice before 
 the end of the year, and that puts him on the footing of a tenant for 
 years, and there is no occasion to interfere with the rights of the 
 owner of the land under the general doctrine by allowing him to come 
 in on the doctrine of emblement*.^^* 
 
 § 570. The common-law rule is that every one who has an uncer- 
 tain estate or interest in land, if his estate determines by act of God 
 before severance of the crop shall have emblements, or they go to his 
 executor or administrator.^*^ Crops raised upon land during a ten- 
 ancy at will belong to the tenant, although the landlord brings the 
 holding to an end prior to the maturity of the crops.^^° Littleton, 
 speaking of tenancies at will, says : "If the lessee soweth the land, and 
 the lessor, after it is sown and before the corne is ripe, put him out, 
 yet the lessee shall have the corne, and shall have free entree, egresse, 
 and regresse to cut and carry away the corne, because he knew not at 
 what time the lessor would enter upon him."^" Thus it seems clear 
 that a tenant at will, having planted during his tenancy, is entitled to 
 the product of his planting. Neither party, by determining the ten- 
 ancy, can unfairly prejudice the other in regard to rents or emble- 
 ments. If the lessee terminate before the day on which rent is due, he 
 must pay up the rent to that day ; when the lessor determines the rent 
 at such a time, he loses his rent. If the lessor determines the tenancy 
 before the wheat or other produce is reaped or gathered, the lessee 
 shall have the emblements, and free ingress, egress and regress to take 
 them away ; but when the lessee determines the tenancy at such a time 
 he loses the emblements.^^^ T\Tiere a dowress, in possession of land on 
 
 =««Gossett V. Drydale, 48 Mo. App. 296; Davis v. Brocklebank, 9 N. H. 
 
 430; Sanders v. Ellington, 77 N. 73; Graves v. Weld, 5 B. & Ad. 105: 
 
 Car. 255. Bittinger v. Baker, 29 Pa. St. 66; 
 
 ='" Spencer v. Lewis, 1 Houst. Hunter v. Jones, 7 Phila. (Pa.) 233, 
 
 (Del.) 223; Heavilon v. Farmers' s. c. 2 Brewst. (Pa.) 370. 
 
 Bank, 81 Ind. 249; Shaffer v. Ste- '^ Plummer v. Currier, 52 N. H. 
 
 vens, 143 Ind. 295, 42 N. E. 620; 287, 296; Sherburne v. Jones, 20 Me. 
 
 Brown v. Thurston, 56 Me. 126; 70; Rising v. Stannard, 17 Mass. 
 
 Talbott V. Hill, 68 111. 106; Bevans 282, 287; Ellis v. Paige, 1 Pick. 
 
 V. Briscoe, 4 H. & J. (Md.) 139; (Mass.) 43, 49; Towne v. Bowers, 
 
 Towne v. Bowers, 81 Mo. 491; Reilly 81 Mo. 491; Reilly v. Ringland, 39 
 
 V. Ringland, 39 Iowa 106, s. c. 44 Iowa 106, s. c. 44 Iowa 422. 
 
 Iowa 422; Dollar v. Roddenbery, 97 '^^^ Litt, ch. 8, § 68. See, Co. Litt. 
 
 Ga. 148, 25 S. E. 410; Corle v. Monk- 55a. 
 
 house, 417 N. J. Eq. 73, 20 Atl. 367; ==•= Brown v. Thurston, 56 Me. 126; 
 
 King V. Foscue, 91 N. Car. 116; Davis v. Thompson, 13 Me. 209; 
 
 Plummer v. Currier, 52 N. H. 287, Sherburne v. Jones, 20 Me. 70; De
 
 647 EMBLEMENTS. [§ 571 
 
 which she had sown a crop of wheat, in a suit for partition consented 
 that her dower in the premises might be sold, which was accordingly 
 done, and she received one-seventh of the proceeds of the sale in lieu 
 of dower, it was held that she could not claim emblements, as her 
 estate was terminated by her own act in consenting to the sale and 
 taking the proceeds.^^^ 
 
 Bad husbandry does not deprive the tenant of his right to the way- 
 going crop,^^* but when he has been ejected for breach of condition he 
 loses his right to emblements.^ ®^ 
 
 § 571. An executor or a lessee of a tenant for life is entitled to 
 crops which were planted during his life time but did not mature 
 till after his death.*^*' "This is not only proper to a lessee at will," 
 says Lord Coke, "that when the lessor determines his will that the 
 lessee shall have the corne sowne, etc., but to every particular tenant 
 that hath an estate incertaine, for that is the reason which Littleton 
 expressed in these words, because he hath no certaine or sure estate. 
 And therefore if tenant for life soweth the ground and dieth, his 
 executors shall have the corn for that his estate was uncertaine and 
 determined by the act of God. And the same is the law of the lessee 
 for years of the tenant for life."^"^ It being settled that the tenant 
 for life and his under-tenant for years are entitled to the emblements, 
 it is equally well settled that he has the right to ingress, egress and 
 regress to preserve the crop, to gather it, and to carry it off. Where a 
 tenant for life dies in possession, the reversioner or remainderman is 
 not entitled to the occupation of the lands on which a crop is growing 
 until that crop is taken off, or a reasonable time is given for taking it 
 off ; and the law must be the same where the lands are leased for years 
 to an under-tenant, who has all the rights which the executors of 
 a tenant for life would have had if he had died in possession.^''* This 
 
 Bow V. Colfax, 10 N. J. L. 151; fax, 10 N. J. L. 151; Howell v. 
 
 Howell V. Schenck, 24 N. J. L. 89; Schenck, 24 N. J. L. 89, 93; Bradley 
 
 Towne v. Bowers, 81 Mo. 491; Heav- v. Bailey, 56 Conn. 374, 15 Atl. 746; 
 
 ilon V. Farmers' Bank, 81 Ind. 249; King v. Whittle, 73 Ga. 482; Perry 
 
 Reilly v. Ringland, 39 Iowa 106, s. c. v. Hamilton, 138 Ind. 271, 35 N. E. 
 
 44 Iowa 422. 836; Dorsett v. Gray, 98 Ind. 273; 
 
 '"' Talbot v. Hill, 68 111. 106. Shaffer v. Stevens, 143 Ind. 295, 42 
 
 ""Clark v. Harvey, 4 P. F. Smith N. E. 620; Gee v. Young, 1 Hayw. 
 
 (Pa.) 142. (N. Car.) 17; Pouidextex v. Black- 
 
 '"^ Hunter v. Jones, 2 Brewst. burn, 1 Ired. Eq. (N. Car.) 286. 
 (Pa.) 370. ="Co. Litt. 55b. 
 
 ^'^Corle V. Monkhouse, 47 N. J. ="' Bevans v. Briscoe, 4 H. & J. 
 
 Eq. 73, 28 Atl. 367; De Bow v. Col- (Md.) 139.
 
 § 572] TERillXATIOX OF TEXAXCT. 648 
 
 rule has been applied to a case where a lessee of a tenant for life sowed 
 the land while he had reason to suppose that the latter was near his 
 death with a fatal disease. To hold that this right may be defeated 
 after the tenant's death, by evidence of his condition of health, or by 
 his declarations or those of his lessee imputing a belief or knowledge 
 that his life would not continue until harvest time, would in many 
 cases subvert an important object of the rule, — ^the encouragement of 
 husbandry, and open a fruitful source of unseemly litigation. A tenant 
 in failing health would naturally hesitate to put in crops which might 
 be successfully claimed by his successor in title, or in respect to which 
 his estate might be involved in litigation.^^^ If the husband of a 
 tenant for life is in possession and tills the land, and she dies before 
 the crop is gathered, he takes the whole as emblements, and it is not a 
 case for apportionment under the Delaware statute, which only ap- 
 plies in case of demise, as where the tenant for life has rented out the 
 land, and his life estate determines during the tenancy.^"" The rule 
 has also been applied in the case of a man who married a dowress who 
 died after a crop had been sown. It was held that the second husband 
 was entitled to reap the crop he had planted before the death of his 
 wife.««i 
 
 ' § 572. Rights of lessee under lease subject to a prior lien. — A 
 
 mortgagor compelled to surrender the estate is not, like a tenant at will, 
 entitled to the emblements, though produced by the mortgagor's labor. 
 The mortgagee may evict him without notice and retain the emble- 
 ments.^°2 A lessee holding under the mortgagor by a lease granted sub- 
 sequently to the mortgage, and without the mortgagee's concurrence, 
 has no greater rights than the mortgagor ; and when evicted by the par- 
 amount title of the mortgagee, as he may be without notice, he cannot 
 retain the emblements.®*'^ A purchaser at a foreclosure sale is entitled 
 to the crops growing at the time of the sale, and may maintain trespass 
 against the mortgagor or his lessee for taking and carrying them 
 away,«°* or replevin for the property.®**^ If the mortgagee become the 
 
 '^ Bradley v. Bailey, 56 Conn. 374, '"' Jones v. Thomas, 8 Blackf . 
 
 15 Atl. 746. (Ind.) 428; Anderson v. Strauss, 98 
 
 "^Spencer v. Lewis, 1 Houst. 111. 485. 
 
 (Del.) 223. «^ Shepard v. Philbrick, 2 Denio 
 
 •"iRing V. Whittle, 73 Ga. 482. (N. Y.) 174; Downard v. Groff, 40 
 
 ""-Gilman v. Wills, 66 Me. 273; Iowa 597. 
 
 Downard v. Groff, 40 Iowa 597; •"« Scriven v. Moote, 36 Mich. 64; 
 
 Coor v. Smith, 101 N. Car. 261, 7 S. Aldrich v. Reynolds, 1 Barb. Ch. 
 
 E. 669; Jones v. Hill, 64 N. Car. 198. (N. Y.) 613. 
 
 I
 
 G49 EMBLEMEXTS. [§ 572 
 
 purchaser at such sale, he may maintain the action.^"^ Moreover, the 
 purchaser at the foreclosure sale may by injunction restrain the mort- 
 gagor from taking the crops, and may restrain his creditor from pro- 
 ceeding under execution to levy upon them.^^^ But a lessee of land 
 encumbered with a judgment prior to the lease, under which the prem- 
 ises are levied on and sold, is entitled to the way-going crop sown by 
 him prior to the levy and condemnation, in preference to the sheriff's 
 vendee. By statute in Pennsylvania the tenant was required to give up 
 possession three months after the purchaser required him to do so and 
 to pay him rent for the use of the land. This law makes the lessee, 
 under a lease of later date than the lien, a tenant at will of the pur- 
 chaser under such lien ; and it follows on well-settled common-law 
 principles that if he had a crop in the ground before he was notified 
 of the landlord's election to determine the tenancy, he will have a 
 right to take it away. It is essentially a lease for years, but subject to 
 be determined by an uncertain event depending on the will of others, 
 that is, on the will of lien creditors and the purchaser under their 
 liens. If a tenant subject to liens were not entitled to the privileges 
 of a tenant at will, then liens would become a nuisance, preventing the 
 leasing of lands encumbered by them, and requiring leases to be made 
 at ruinous rates, because of the risk that is to be run by the tenant. ''*'* 
 Furthermore, it has been declared to be right to treat mortgage and 
 judgment liens as entirely equivalent in their effect upon the tenant's 
 rights, where both of them are mere liens upon the land and not titles 
 to it. In states where a mortgage is treated as a title to land, and not 
 as a lien, it is natural enough that, on the foreclosure, the tenant loses 
 his crop ; for he is considered as without title, and the mortgagee enters 
 by paramount title and takes all.^"^ But in Ohio, for example, it has 
 been held that a tenant's growing crop is safe even against a mort- 
 gage ;®^*^ but this doctrine has been declared to rest upon the Ohio ap- 
 
 «^Lane v. King, 8 Wend. (N. Y.) «°° Bittinger v. Baker, 29 Pa. St. 
 
 584, 24 Am. Dec. 105. 66. 
 
 ^"^ Crews v. Pendleton, 1 Leigh "" Houts v. Showalter, 10 Ohio St. 
 
 (Va.) 297, 19 Am. Dec. 750. 124; Cassilly v. Rhodes, 12 Ohio 88. 
 
 °"' Bittinger v. Baker, 29 Pa. St. In the case of Heavilon v. Farmers' 
 
 66, overruling Sallada v. James, 6 Bank, 81 Ind. 249, the court refers 
 
 Barr (Pa.) 144; Groff v. Levan, 4 to the case of Jones v. Thomas, 8 
 
 Harris (Pa.) 179. The doctrine of Blackf. 428, saying: "When Jones v. 
 
 the principal case was recognized Thomas, supra, was decided, it was 
 
 and followed in Dollar v. Rodden- the established doctrine here, as 
 
 bery, 97 Ga. 148, 25 S. E. 410. See elsewhere, that a mortgage trans- 
 
 also. Miller v. Clement, 4 Wright ferred the title to the mortgagee 
 
 (Pa.) 484. and, after condition broken, if not
 
 573] 
 
 TERMIXATIOX OF TEXAXCT. 
 
 650 
 
 praisement law.^^^ The reasons given for this doctrine apply to the 
 landlord's share where a crop is put in by the tenant on the shares. 
 As a general rule, a purchaser is entitled to rent coming due after 
 title is vested in him, but a well-defined exception to the rule has been 
 recognized in Ohio in the case of a judicial sale.^^^ 
 
 In Nebraska the owner of land sold on execution retains the right 
 of possession, and is entitled to the usufruct of such land until con- 
 firmation of the sale, so that a judgment debtor is not accountable to 
 the purchaser for hay cut upon the land after sale and before con- 
 firmation.^^^ It has also been held in that jurisdiction that a mature 
 crop of corn standing upon land sold at judicial sale, and not taken 
 into account by the appraisers, did not pass to the purchaser, but re- 
 mained the property of the mortgagor, who had planted and cultivated 
 it.^" So where a purchaser at a foreclosure sale planted and cultivated 
 did not obtain possession of the land, but permitted the tenant to 
 retain possession, notifying him that he must pay rent in money or in 
 kind, the tenant was held to be entitled to the crop."^ 
 
 § 573. An outgoing tenant in agriculture is not entitled to 
 manure made on the farm, even though it is made by his own cattle 
 
 before, enabled him to maintain 
 ejectment, and this led inevitably 
 to the conclusion in that case. The 
 rule, now well established, however, 
 is, that a mortgage creates no estate 
 in the mortgagee, but confers on 
 him only a lien on the estate of the 
 mortgagor, which estate by force 
 of the mortgage, can be transferred 
 to the mortgagee only by a fore- 
 closure and sale according to law. 
 When such foreclosure and sale can 
 or will be accomplished in any case, 
 cannot be anticipated, and so the 
 term of the tenancy being uncertain, 
 the case comes under the general 
 rule already stated; besides, the 
 statute of redemption now prolongs 
 the right of possession of the land- 
 owner or occupant beyond the time 
 of sale, whether upon execution or 
 decree, for one year. When that 
 year will terminate cannot be 
 known, of course, until the sale has 
 
 been made, or at least advertised. 
 After a sale has been made, or per- 
 haps advertised, it would seem that, 
 as against the purchaser, the tenant 
 who would sow must do it at his 
 peril." In Hall v. Durham, 117 Ind. 
 429, it was held that the rule of 
 Jones V. Thomas, supra, applied 
 with full force as to crops sowed 
 upon the land, after deed issues, 
 without the consent of the pur- 
 chaser, even if it did not apply to 
 crops sowed before with the knowl- 
 edge that they will not ripen and 
 cannot be harvested till after the 
 deed issues. 
 
 "" Downard v. Groff, 40 Iowa 597. 
 
 «" Albin V. Riegel, 40 Ohio St. 339. 
 
 «"Yeazel v. White, 40 Neb. 432, 
 58 N. W. 1020. 
 
 "*Foss V. Marr, 40 Neb. 559, 58 
 N. W. 1020. 
 
 "^Monday v. O'Neil, 44 Neb. 724, 
 63 N. W. 32. 
 
 f
 
 651 . EMBLEMENTS. [§573 
 
 and from his own fodder.^^" The removal by tenant at will of manure 
 which has been manufactured by him on the premises in his occupancy, 
 in due course of husbandry, is a permanent injury to the reversioner ; 
 it is in law voluntary waste; and for such an injury the owner may 
 maintain trespass.^^'' Manure made upon a farm in the ordinary man- 
 ner, from the consumption of its products, is regarded in this country 
 as belonging to the realty, and would pass with the farm if sold, and 
 may not be removed by a tenant in the absence of any special contract 
 to the contrary.®^* The tenant can neither remove the manure nor sell 
 it to be removed, and such sale will vest no property in the vendee. 
 The rule here adopted is not considered as applying to manure made 
 in a livery stable, or in any manner not connected with agriculture 
 and out of the course of husbandry. In such cases the reason of the 
 rule does not apply, and the lessor has no claim to the manure, except 
 such as may result from express contract. ®^^ The New Hampshire 
 court were not prepared to say that manure made from eel grass gath- 
 ered from the banks of a river on which a farm lies would stand on 
 this ground. This material was to be regarded not as a product of the 
 farm to be sold off by the tenant like grain or fruit, but as a fertilizer, 
 like muck or sea-weed, which the tenant might lawfully use to enrich 
 his land, but in which his interest was qualified and not absolute.*'^" 
 
 The general rule is not applicable to land used as a corral or pen for 
 herding large numbers of cattle, brought thither to be slaughtered, and 
 fed with fodder brought from elsewhere. The land furnished nothing 
 for the support of the cattle, and it was not exhausted by cultivation. 
 The tenant was not occupying the land under a farming lease, and the 
 rule governing the case of a tenant under a farming lease is founded 
 on facts and circumstances wholly different.*'-^ But it does not pre- 
 
 '"Lassell v. Reed, 6 Me. 222; Proctor, 2 Chipm. (Vt.) 108; Ford 
 
 Lewis V. Jones, 17 Pa. St. 262; v. Cobb, 20 N. Y. 344; Goodrich v. 
 
 Wetherbee v, Ellison, 19 Vt. 379. Jones, 2 Hill (N. Y.) 142; Middle- 
 
 "' Perry v. Carr, 44 N. H. 118. brook v. Corwin, 15 Wend. (N. Y.) 
 
 818 Fay V. Muzzey, 13 Gray (Mass.) 169; Pulteney v. Shelton, 5 Ves. 
 
 53; Daniels v. Pond, 21 Pick. 147; Onslow's Case, 16 Ves. 173. 
 
 (Mass.) 367; Lewis v. Lyman, 22 ''^'' Daniels v. Pond, 21 Pick. 
 
 Pick. (Mass.) 437; Lassell v. Reed, (Mass.) 367; Lassell v. Reed, 6 Me. 
 
 6 Me. 222; Gallagher v. Shipley, 24 222; Corey v. Bishop, 48 N. H. 146; 
 
 Md. 418; Bonnell v. Allen, 53 Ind. Needham v. Allison, 24 N. H. 355; 
 
 130; Conner v. Coffin, 22 N. H. 538, Plumer v. Plumer, 30 N. H. 558. 
 
 541; Plumer v. Plumer, 30 N. H. ""Hill v. DeRochement, 48 N. H. 
 
 558; Perry v. Carr, 44 N. H. 118; 87. 
 
 Corey v. Bishop, 48 N. H. 146; "-^Gallagher v. Shipley, 24 Md. 
 
 Wetherbee v. Ellison, 19 Vt. 379; 418; Corey v. Bishop, 48 N. H. 146. 
 
 Wing v. Gray, 36 Vt. 261; Stone v.
 
 § 573] TERMINATION OF TENANCY. 65^ 
 
 vent the application of the rule that the tenant bought some hay and 
 grain, and fed the hay s"o bought, so long as the manure so made is 
 commingled with that made from the produce of the farm.^" j^ j^^^g 
 also been held that the general doctrine would cover a dairy farm as 
 well as one used for general agricultural purposes.® ^^ In Maine the 
 law is that manure on a farm in the possession of a tenant may be 
 seized in execution by his creditor during the continuance of his ten- 
 ancy and sold for the payment of his debts.®^* The theory on which 
 this doctrine rests is that during the term a tenant could pass a good 
 title to manure, and the landlord's only remedy would be an action in 
 the nature of waste for bad husbandry. 
 
 In North Carolina a tenant who is about to remove has a right, 
 where there is no covenant or custom to the contrary, to all the manure 
 made by him on the farm ; it is his personal property, and he may take 
 it with him. But the manure ceases to be his if he leaves it when he 
 quits the farm. Taking up with the manure a slight portion of the 
 earth, which is necessarily mixed with it in raking it into heaps, will 
 not make the tenant a tort-feasor.®^^ 
 
 A covenant by a tenant to leave the manure on the premises at the 
 expiration of his term would override a custom of the country en- 
 titling him to receive compensation for manure left under such cir- 
 cumstances ;®2® and mutual covenants for the purchase and sale of 
 manure on the premises at the expiration of a tenant's term entitle 
 the off-going tenant to leave the manure on the premises till the sale 
 can be consummated.®^'^ 
 
 ^^'Bonnell v. Allen, 53 Ind. 130; «=! g^jiti^^iclj y Ellison, 2 Ired. L. 
 
 Lewis V. Jones, 17 Pa. St. 262. (N. Car.) 326. 
 
 «^Bonnell v. Allen, 53 Ind. 130. ^^'^ Roberts v. Barker, 1 C. & M. 
 
 «* Staples v. Emery, 7 Me. 201; 808. 
 Brackett v. Goddard, 54 Me. 309, '" Beaty v. Gibbons, 16 East 116. 
 313.
 
 CHAPTER VIII. 
 
 RIGHTS AND LIABILITIES OF THE PARTIES. 
 
 1. Landlord's Responsibility for 
 
 good Condition of Premises, 
 §§ 574-587. 
 
 2. Liability imposed by Lessor's 
 
 Agreement to Repair, §§ 588- 
 598. 
 
 3. Liability for Nuisance, §§ 599- 
 
 611. 
 
 4. Premises Occupied by more than 
 
 one Tenant, §§ 612-624. 
 
 5. Responsibility for Waste, §§ 625- 
 
 639. 
 
 6. Actions Relative to Possession, 
 
 §§ 640-647. 
 
 I. Landlord's Eesponsihility for Good Condiiion of Premises. 
 
 § 574. The well-established general rule is that upon a demise of 
 premises there is no implied warranty or implied condition as to 
 the fitness of the leased property for the purpose for which it is 
 leased.^ In a well-considered case before the Exchequer Chamber,^ 
 the action was to recover rent for a pasture, and the defense made was 
 that the land was unfit for pasture, and that the defendant's cattle 
 had been poisoned by a foreign substance on the land. The court held 
 the entire rent could be recovered, and that the facts alleged were not 
 a defense. Park, B., said, in the course of his opinion : "With respect 
 to the other and principal question in this case, viz., whether a con- 
 tract or condition is implied by law, on the demise of land, that it 
 shall be reasonably fit for the purpose for which it is taken, if the 
 question were res Integra, I should entertain no doubts at all that no 
 such contract or condition is implied in such a case. The word 'de- 
 mise' certainly does not carry with it any such implied undertaking." 
 
 'Bowe V. Hunking, 135 Mass. 380; 
 Button V. Gerrish, 9 Cush. (Mass.) 
 89; Hess v. Newcomer, 7 Md. 325, 
 337; Clyne v. Helmes. 61 N. J. L. 
 358, 39 Atl. 767; Gaither v. Hascall- 
 Richards &c. Co., 121 N. Car. 384, 
 28 S. B. 546; Clifton v. Montague, 
 40 W. Va. 207, 21 S. E. 858; Harlan 
 V. Lehigh &c. Co., 35 Pa. St. 287; 
 Clark V. Babcock, 23 Mich. 164; 
 
 Sutton V. Temple, 12 M. & W. 52; 
 Railton v. Taylor, 20 R. I. 279, 38 
 Atl. 980; Thum v. Rhodes, 12 Colo. 
 App. 245, 55 Pac. 264; Lynch v. Ort- 
 lieb, 70 Tex. 727, 8 S. W. 515; Perez 
 V. Rabaud, 76 Tex. 191, 13 S. W. 177; 
 McKeon v. Cutter, 156 Mass. 296, 31 
 N. E. 389; Friedman v. Schwabacher, 
 64 111. App. 422. 
 = Sutton V. Temple, 12 M. & W. 52. 
 
 653
 
 § 575] RIGHTS AND LIABILITIES OF THE PARTIES. 654 
 
 The same learned judge said on another occasion: "We are all of 
 opinion, for these reasons, that there is no contract, still less a condi- 
 tion, implied by law, on the demise of real property only, that it is fit 
 for the purpose for which it is let. It is much better to leave the par- 
 ties, in every case, to protect their interests themselves by proper stip- 
 ulations, and if they really mean a lease to be void by reason of any 
 unfitness in the subject for the purpose intended, they should express 
 that meaning."^ In the case of Cowen v. Sunderland,*' Devens, J., 
 delivering the opinion of the court, says : "It is a general rule, well 
 established by the decisions of this court, that the lessee takes an 
 estate in the premises hired, and takes the risk of the quality of the 
 premises, in the absence of an express or implied warranty or of de- 
 ceit. . . . The rule of caveat emptor applies, and it is for the lessee 
 to make the examination necessary to determine whether the premises 
 he hires are safe and adapted to the purposes for which they are 
 hired." 
 
 Thus, where the leased premises were described as the "Bedford 
 Salt Furnace Property," together with all the appurtenances thereto 
 belonging, including six salt wells, tools and fixtures of the same, there 
 was no implied covenant on the part of the lessor that the wells were 
 of any particular capacity or suitable for the purpose for which they 
 were leased.^ The law will not imply a covenant in a lease as to con- 
 ditions not under the control of the lessor, and with reference to which 
 he and the lessee being ignorant, neither could be supposed to have 
 contracted. The lessee of real property must run the risk of its con- 
 dition, unless he has an express agreement.** 
 
 § 575. Oral evidence of warranty. — Not only will no implication of 
 a warranty of fitness be made, but the rights of the parties cannot be 
 affected by any collateral agreements or undertakings which are not 
 embodied in the written lease. It is well settled that in the absence of 
 fraud, accident or mistake, oral evidence of a warranty will not be 
 admitted.'^ If the lease contains no warranty as to the conditions or 
 
 ^ Hart v. Windsor, 12 M. & W. 68, ' Naumberg v. Young, 44 N. J. L. 
 
 per Parke, B., quoted with approval 331, 43 Am. R. 380; McLean v. Nicol, 
 
 in Foster v. Peyser, 9 Gush. (Mass.) 43 Minn. 169, 45 N. W. 15; Snead 
 
 242. v. Tietjin (Ariz.), 24 Pac. 324; Mast 
 
 * Cowen V. Sunderland, 145 Mass. v. Pearce, 58 Iowa 579, 8 N. W. 632; 
 
 363, 14 N. E. 117. Stevens v. Pierce, 151 Mass. 207, 23 
 
 ^Clifton v. Montague, 40 W. Va. N. E. 1006; De Witt v. Berry, 134 
 
 207, 21 S. E. 858; Clark v. Babcock, U. S. 306, 10 S. Ct. 536; Braley v. 
 
 23 Mich. 164. Henry, 71 Cal. 481, 12 Pac. 623; York 
 
 « Franklin v. Brown, 118 N. Y. 110, v. Steward, 21 Mont. 515, 55 Pac. 29. 
 23 N. E. 126.
 
 655 landlord's responsibility rOR condition of premises. [§576 
 
 character of a building, the effect of the evidence to fix upon lessor 
 the liability arising from such a warranty changes in a very material 
 manner the rights and liabilities of the parties, and such evidence is 
 not admissible.^ 
 
 § 576. Demise of dwelling honses.— The rule that there is no im- 
 plied warranty of fitness applies in a case where the subject-matter of 
 the lease is a dwelling house. The lessor does not undertake that it is 
 fitted for the use for which it is let, or for any purpose, or that it will 
 remain in a tenantable condition.^ This involves both the right of the 
 landlord to collect rent and his freedom from liability for injuries 
 caused by defects in the premises. If there has been no misrepresenta- 
 tion or fraud, the landlord is entitled to his rent although the prem- 
 ises turn out to be useless.^** Moreover, the landlord is not liable for 
 damage caused by defects in the premises unless he is guilty of laying 
 a trap or of maintaining a nuisance. In a case where a tenant renting 
 from month to month was injured by a defective fire-escape, the court, 
 applying this doctrine, held the landlord was not liable. "The general 
 rule," said the court, "is that under such a contract the lessee takes 
 the risk as to the condition and quality of the hired premises, and that 
 the landlord is not liable to the tenant for injuries sustained by reason 
 of the defective condition of the buildings leased. By such a lease the 
 lessee purchases an estate in the premises rented, and the rule of 
 caveat emptor apples, making it, ordinarily, the duty of the lessee as 
 such purchaser to make such examination of the premises as is re- 
 quired in order to ascertain whether the premises have so fallen into 
 decay or become so dangerous that a person occupying the same is 
 liable to be injured."" Wlien a tenant inspects premises, he takes 
 
 « Lynch v. Ortlieb, 70 Tex. 727, 8 1 Daly (N. Y.) 99; Bowe v. Hunk- 
 
 S. W. 515. ing, 135 Mass. 380; Button v. Ger- 
 
 ^ Blake v. Ranous, 25 111. App. rlsh, 9 Gush. (Mass.) 89; Royce v. 
 
 486; Gallagher v. Button, 73 Conn. Guggenheim, 106 Mass. 201; Scott 
 
 172, 46 Atl. 819; McCoull v. Herz- v. Simons, 54 N. H. 426; Clyne v. 
 
 berg, 33 111. App. 542; Hanson v. Helmes, 61 N. J. L. 358, 39 Atl. 767; 
 
 Cruse, 155 Ind. 176, 57 N. E. 904; Sutton v. Temple, 12 M. & W. 52; 
 
 Foster v. Peyser, 9 Gush. (Mass.) Hart v. Windsor, 12 M. & W. 68. 
 242; Stevens v. Pierce, 151 Mass. ^^ Friedman v. Schwabacher, 64 111. 
 
 207, 23 N. E. 1006; Naumberg v. App. 422. 
 
 Young, 44 N. J. L. 331, 43 Am. R. "Gallagher v. Button, 73 Conn. 
 
 380; Hart v. Windsor. 12 M. & W. 172, 46 Atl. 819; Jaffe v. Harteau, 
 
 68; York v. Steward, 21 Mont. 515, 56 N. Y. 398; Edwards v. New York 
 
 55 Pac. 29; Blake v. Dick, 15 Mont. &c. R. Co., 98 N. Y. 245; Towne v. 
 
 236, 38 Pac. 1072; Mullen v. Rainear, Thompson, 68 N. H. 317, 44 Atl. 492; 
 
 45 N. J. L. 520; Meeks V. Bowerman, Bowe v. Hunking, 135 Mass. 380;
 
 § 576] RIGHTS AND LIABILITIES OF THE PARTIES. 656 
 
 the risk of their condition, and he cannot complain because the land- 
 lord did not disclose defects in respect to which he had full oppor- 
 tunity of informing himself.^^ If the tenant desires to hold his land- 
 lord responsible for the security of the leased building, he should have 
 a covenant to that effect incorporated in the lease.^^ So, where there 
 are no express covenants in a lease, and the landlord is neither dis- 
 honest nor negligent, it has been declared to be settled law that the 
 rule of caveat emptor applies as to the condition of leased premises. 
 The tenant assumes the risk, and no liability attaches to the land- 
 lord.^^ The rule that the letting of a house does not imply that it is 
 fit or will continue fit for the purpose for which it is let applies equally 
 to the case of the letting of several rooms in a tenement house, if they 
 pass out of the control of the landlord into the exclusive possession 
 of the tenant. ^^ But although there is no implied contract in a lease 
 of a building that it is well constructed, or safe, or reasonably fit for 
 occupancy, or that it will continue in habitable condition, a landlord 
 is liable to his tenant for damage resulting from defects in the build- 
 ing known to the landlord, or of which he ought to have known, and 
 not known to the tenant, and of which he had not equal means of 
 knowledge.^® 
 
 In a Michigan case where a dwelling house became untenantable 
 from defects in construction and sewer gas, it was held that the tenant 
 could vacate without being liable for future rent.^'^ It does not appear 
 that the landlord had been guilty of any deceit, or that he was under 
 any obligation to repair, so that the decision must be regarded as a 
 departure from the prevailing doctrines on this topic. It is worthy of 
 notice that the only authority cited was the case of letting one apart- 
 ment in an apartment house. The landlord in that case was under 
 general obligation to repair, and retained general supervision over the 
 sewerage, which forced the tenant to vacate. Even under these cir- 
 
 Booth V. Merriam, 155 Mass. 521, 30 Carson v. Godley, 26 Pa. St. Ill; 
 
 N. E. 85; Brewster v. De Fremery, Krueger v. Ferrant, 29 Minn. 385, 
 
 33 Cal. 341; Krueger v. Ferrant, 29 13 N. W. 158; Wilcox v. Hines 
 
 Minn. 385, 13 N. W. 158; Humphrey (Tenn.), 46 S. W. 297. 
 
 V. Wait, 22 U. C. C. P. 580. " McKeon v. Cutter, 156 Mass. 
 
 ^= Blake v. Dick, 15 Mont. 236, 38 296, 31 N. E. 389; Looney v. Mc- 
 
 Pac. 1072. Lean, 129 Mass. 33; Bowe v. Hunk- 
 
 « Lynch v. Ortlieb, 70 Tex. 727, 8 ing, 135 Mass. 380. 
 
 S. W. 515. " Thum v. Rhodes, 12 Colo. App. 
 
 "Thum V. Rhodes, 12 Colo. App. 245, 55 Pac. 264. 
 
 245, 55 Pac. 264; Cowen v. Sunder- "Leonard v. Armstrong, 73 Mich, 
 
 land, 145 Mass. 363, 14 N. E. 117; 577, 41 N. W. 695.
 
 657 landlord's responsibility for conditiox of premises. [§ 577 
 
 cumstances the decision allowing the tenant to defend against an 
 action for rent was not without a vigorous dissent.^^ 
 
 § 577. Furnished house. — It has been suggested that a distinction 
 exists between the lease of an unfurnished and one of a furnished 
 house. This distinction was discussed and disapproved by the Supreme 
 Court of New Hampshire. The court said: "The sole contention of 
 the defendants is that in a lease of a furnished house there is an im- 
 plied covenant or condition that it is reasonably fit for the lessee's 
 habitation. If the house is unfurnished it is admitted that such an 
 inference would not be supported by sufficient evidence. A broad dis- 
 tinction in this regard is suggested between a lease of a furnished and 
 a lease of an unfurnished house, which on principle is not apparent. 
 If the landlord knows that the tenant proposes to occupy the house for 
 a term of years as a place for the accommodation of the traveling 
 public, why should the fact that the- landlord also leases to him the 
 furniture in the house imply an additional agreement on his part that 
 the house is suitable for hotel purposes or for halDitation? Want of 
 repair, and structural defects in the house, do not depend on the fur- 
 nishings; and there is no more reason why a landlord should bind 
 himself by a warranty against such imperfections in a lease of a fur- 
 nished house than there is in a lease of an unfurnished house."^^ 
 
 In New York the question arose whether the lessor of a furnished 
 house was responsible for offensive odors which rendered the house un- 
 inhabitable. There was no fraud, and the lessee had abundant oppor- 
 tunity to inspect the premises. The court held there was no warranty, 
 and that the tenant was bound to pay the rent.^" So in a case where 
 the cellar of the leased house became filled with water, which ren- 
 dered it damp and unhealthy, the tenant abandoned it and refused to 
 be held for rent. But in the absence of false representations or fraud- 
 ulent concealment, this did not justify his conduct, nor could he de- 
 fend against an action for rent.-^ 
 
 § 578. Exceptions to rule. — There is a noted English case which 
 holds that when a furnished house was let for temporary residence at 
 
 ^'Bradley v. Goicouria, 67 How. 245; Cleves v. Willoughby, 7 Hill 
 
 Pr. (N. Y.) 76. (N. Y.) 83, 86. 
 
 "Davis V. George, 67 N. H. 393, =' Murray v. Albertson, 50 N. J. 
 
 39 Atl. 979. L. 167, 13 Atl. 394, disapproving Wil- 
 
 "" Franklin v. Brown, 118 N. Y. son v. Finch, Hatton, L. R. 2 Exch. 
 
 110, 23 N. E. 126. See also, Edwards D. 336. 
 V. New York &c. R. Co., 98 N. Y. 
 Jones L. & T.— 42
 
 § 578] EIGHTS AND LIABILITIES OF THE PARTIES. 658 
 
 a watering place, there was an implied condition that it was in a fit 
 state to be inhabited and that the tenant is entitled to quit upon dis- 
 covering that it is greatly infested with bugs,^* In this ease Lord 
 Abinger said he required no authorities to hold that "a man who rents 
 a ready furnished house does so under the implied condition or obliga- 
 tion — call it what you will — that the house is in a fit state to be in- 
 habited;" but in a subsequent case he said that Smith v. Marrahle was 
 a case of a "contract of a mixed nature — for the letting of a house and 
 furniture at Brighton and every one known that the furniture upon 
 such occasions forms the greater part of the value which the party 
 renting it gives for the house and contents. . . . Where the party 
 has had an opportunity of personally inspecting a ready furnished 
 house, by himself or his agent before entering upon the occupation of 
 it, perhaps the objection would not arise ; but if a person takes a ready 
 furnished house upon the faith of its being suitably furnished surely 
 the owner is under an obligation to let it in a habitable state." In 
 another case^* Smith v. Marrahle was further distinguished on the 
 ground that it was a case of "a ready furnished house for a temporary 
 residence at a watering place." In still another it was said that the 
 case was "only an authority for the propositon that in taking furnished 
 apartments at the seaside, or for temporary occupation only, there is 
 an implied warranty that they must be fit for occupation."-^ The 
 principal case, as narrowed down by these subsequent explanations, has 
 been followed and probably represents the law of England.^*' 
 
 In the United States the doctrine has been received with disfavor. 
 One American court commented as follows on the principal case: 
 "Certain it is that Smith v, Marrahle has never been followed, except 
 under the precise circumstances on which it was decided, and then 
 only as enabling the tenant to abandon the premises, rescind the lease 
 and defend against the payment of rent. The case has never been 
 cited to raise an implied warranty under any other circumstances 
 without disapproval."^^ This implication of a warranty in a demise 
 of ready-furnished lodgings has been called an exception and likened . 
 to a sale of provisions for domestic use where the law implies a war- 
 
 " Smith v. Marrable, 11 M. & W. ^'^ Chester v. Powell, 52 L. T. (N. 
 
 5. To like effect see Ingalls v. S.) 722. 
 
 Hobbs, 156 Mass. 348, 31 N. E. 286. =<= Wilson v. Finch, Hatton L. R. 
 
 -^ Sutton v. Temple, 12 M. & W. 2 Exch. D. 336. 
 
 52. ^ Naumberg v. Young, 44 N. J. L. 
 
 ^ Hart V. Windsor, 12 M. & W. 68. 331, 345, 43 Am. R. 380. ' ' 
 See also, Robertson v. Amazon &c. 
 Co., 46 L. T. (N. S.) 146.
 
 659 landlord's responsibility for condition op premises. [§ 579! 
 
 ranty that the provisions are wholesome.-^ In deciding that there was 
 no implied warranty on the demise of a warehouse, Chief Justice 
 Shaw of the Massachusetts Supreme Court said: "It therefore does 
 not come within the authority of cases, wherein furnished rooms in a 
 lodging house are let for parlor, bedroom and the like, for a particu- 
 lar season of the year in which a warranty may be implied that the 
 rooms are properly furnished and suitably fitted for such particular 
 use. But the authority of these cases has been much shaken, if not 
 wholly overruled, so far as it applies to real estate, by the subsequent 
 cases."^^ The rule that the lessee of a furnished house is justified in 
 abandoning it for unfitness has since been established in Massachusetts 
 by an express adjudication.^*' 
 
 § 579. Liability of landlord for personal injuries to tenant. — In 
 
 the absence of special circumstances a landlord is not liable for in- 
 
 ^Cleves V. Willoughby, 7 Hill (N. 
 Y.) 83. 
 
 =» Button V. Gerrish, 9 Cush. 
 (Mass.) 89, 94. For further dis- 
 cussion of the principles and cases 
 see Murray v. Albertson, 50 N. J. 
 L. 167, 13 Atl. 394. 
 
 "• Ingalls V. Hobbs, 156 Mass. 348, 
 31 N. E. 286. In this case Justice 
 Knowlton says: "There are good 
 reasons why a different rule should 
 apply to one who hires a furnished 
 room or furnished house for a few 
 days or a few weeks or months. Its 
 fitness for immediate use of a par- 
 ticular kind, as indicated by its ap- 
 pointments, is a far more important 
 element entering into the contract 
 than where there is a mere lease 
 of real estate. One who lets for a 
 short term a house provided with 
 all furnishings and appointments 
 for immediate residence may be sup- 
 posed to contract in reference to a 
 well understood purpose of the 
 hirer to use it as a habitation. An 
 important part of what the hirer 
 pays for is the opportunity to en- 
 Joy it without delay and without 
 the expense of preparing it for use. 
 It is very diflBcult and often impos- 
 
 sible for one to determine on in- 
 spection whether the house and its 
 appointments are fit for the use for 
 which they are immediately wanted, 
 and the doctrine caveat emptor, 
 which is ordinarily applicable to a 
 lessee of real estate, would often 
 work injustice if applied to cases of 
 this kind. It would be unreasonable 
 to hold, under such circumstances, 
 that the landlord does not impliedly 
 agree that what he is letting is a 
 house suitable for occupation in its 
 condition at the time. This distinc- 
 tion between furnished and unfur- 
 nished houses, in reference to the 
 construction of contracts for letting 
 them, when there are no express 
 agreements about their condition, 
 has long been recognized in Eng- 
 land, where it is held that there 
 is an implied contract that a fur- 
 nished house, let for a short time, 
 is in proper condition for immediate 
 occupation as a dwelling. Smith v. 
 Marrable, 11 M. & W. 5; Manchester 
 &c. Co. V. Carr, L. R. 5 C. P. D. 
 507; Sutton v. Temple, 12 M. & W. 
 52; Hart v. Windsor, 12 M. & W. 
 68; Bird v. Greville, 1 C. & E. 317; 
 Charsley v. Jones, 53 J. P. 280."
 
 § 5-79] RIGHTS AND LIABILITIES OF THE PARTIES. 660 
 
 juries caused to the tenant from defects in the leased premises." 
 Thus, where a tenant was injured by stepping on a defective cover to 
 a cesspool, the landlord was not liable. The accident happened solely 
 because the frame was old and out of repair and there was nothing to 
 show that its condition was not easily discoverable on examination. 
 It was as much the duty of the plaintiff when he hired the house and 
 yard to examine the premises and ascertain whether they were in such 
 repair that she could safely use them as of the defendant.^^ Tj^-g 
 principle covers all cases where the defect is obvious alike to tenant 
 and landlord and where something not dangerous in itself becomes so 
 by reason of its use upon a particular occasion. Examples of this 
 would be where a child fell down a low embankment which was not 
 protected by a fence,^^ or where a stranger fell down an irregular, 
 unprotected flight of steps on a dark night.^* So a landlord was not 
 liable to his tenant for the collapse of a public hall.^^ 
 
 The liability of the landlord must arise in every instance from the 
 breach of some duty he owes his tenant and it may be laid down as a 
 general rule, supported by the weight of authority, that there is no 
 implied duty on the owner of a house, which is in an unsafe condition, 
 to inform a proposed tenant that it is in such a condition ; and that 
 no action will lie against him for an omission to do so in the absence 
 of express warranty or deceit.^^ Many courts in late decisions adhere 
 to this long-established rule of caveat emptor. In one case a boiler, 
 defective in construction, exploded." In another a gallery, defective 
 in construction, fell.^^ In another a house was too weak structurally 
 to resist snow slides known to the lessor to be recurrent and danger- 
 ous.^'' In another a floor defective in construction fell.*" In another 
 a stair tread had been sawed. The lessor knew of the sawing but sup- 
 
 "Bowe v. Hunking, 135 Mass. 380; 45 N. J. L. 520; Smith v. State, 92 
 
 Keates v. Cadogan, 10 C. B. 591, 70 Md. 518, 48 Atl. 92; Towne v. 
 
 E. C. L. 591; Robbins v. Jones, 15 Thompson, 68 N. H. 317, 44 Atl. 
 
 C. B. (N. S.) 221, 240, 109 E. C. L. 492; Whitmore v. Orono Pulp & Pa- 
 
 221. per Co., 91 Me. 297, 39 Atl. 1032; 
 
 '2 Booth V. Merriam, 155 Mass. 521, Piatt v. Farney, 16 111. App. 216; 
 
 30 N. E. 85. Sutton v. Temple, 12 M. & W. 52. 
 
 35 Peterson v. Smart, 70 Mo. 34. " Jaffe v. Harteau, 56 N. Y. 398. 
 
 ^Eyre v. Jordan, 111 Mo. 424, 19 =» Edwards v. New York &c. R. 
 
 S. W. 1095. Co., 98 N. Y. 245, 249. 
 
 =>= Edwards v. New York &c. R. Co., '" Doyle v. Union Pac. R. Co., 147 
 
 98 N. Y. 245. U. S. 413, 13 Sup. Ct. 333. 
 
 ^''Land v. Fitzgerald, 68 N. J. L. *" Tuttle v. Gilbert Mfg. Co.. 145 
 
 28, 52 Atl. 229, Mullen v. Rainear, Mass. 169, 13 N. E. 465. 
 
 A
 
 661 landlord's responsibility for condition of premises. [§ 579 
 
 posed the tread sufficient.*^ In another a well had been used as a cess- 
 pool and thus had become offensive.*^ In another fixtures put up by 
 the lessor were structurally defective and fell.*^ In another a stair- 
 way was defective.** In another a defective platform fell.*^ In an- 
 other an unsafe awning fell on a guest.*® In another a defective gal- 
 lery fell on a guest.*^ In another defective machinery in a mill gave 
 way.** In all these cases, it appearing that the lessor was unaware of 
 the defects, it was held that he was not liable to the lessee or his serv- 
 ants for the injury occasioned by them. 
 
 "The reason of the rule is perfectly apparent. If the lessee knows 
 the condition of the premises and rents them without requiring the 
 owner to repair, he takes them as he finds them and has no right to com- 
 plain of injuries sustained on account of their condition. The owner 
 not being compelled to keep it in repair, if the tenant desires to re- 
 quire that of him, he should so bind him by contract. In the absence 
 of that he must protect himself against dangers which are apparent to 
 him. A building may be perfectly safe and suitable if used for cer- 
 tain purposes, while it may not be for others, and if the tenant has 
 had opportunity to inspect it before he rents it, the landlord cannot 
 anticipate that he will use it in a way his intelligence and observation 
 ought to tell him not "to use it."*^ It was said in one case : "Fraud 
 apart, there is no law against letting a tumble-down house and the ten- 
 ant's remedy is upon the contract, if any."^^ 
 
 The principle of caveat emptor applies to the occupation of rented 
 premises by a tenant as to any defects which are inherent and unknown 
 to the landlord, and the landlord is not liable to the tenant for in- 
 juries received where he had done all that a reasonable prudent man 
 would have done toward fitting the place for occupation. ^^ The same 
 rule applies with equal force where the defects in the leased premises 
 were not secret but obvious and apparent to the most casual observer. 
 The tenant takes the risk of their safe occupancy and cannot hold the 
 landlord responsible for injuries caused thereby.^- 
 
 " Bowe v. Hunking, 135 Mass. 380. " McConnell v. Lemley, 49 La. 
 
 *^Kern v. Myll, 94 Mich. 477, 54 Ann. 1433, 34 L. R. A. 609. 
 
 N. W. 176. ^ Johnson v. Tacoma &c. Co., 3 
 
 ^^Burdick v. Cheadle, 26 Ohio St. Wash. 722, 29 Pac. 451. 
 
 393, 20 Am. R. 767. " Smith v. Walsh. 92 Md. 518, 530, 
 
 "Willson V. Treadwell, 81 Cal. 58, 48 Atl. 92, per Boyd, J. 
 
 22 Pac. 304.. »» Bobbins v. Jones, 15 C. B. (N. 
 
 « Texas &c. R. Co. v. Mangum, 68 S.) 221, 240, 109 E. C. L. 221. 
 
 Tex. 342, 4 S. W. 617. " Daley v. Quick, 99 Cal. 179, 33 
 
 '" Fellows v. Gilhuber, 82 Wis. 639, Pac. 859. 
 
 52 N. W. 307. " Harpel v. Fall, 63 Minn. 520, 65
 
 §■ 580] RIGHTS AND LIABILITIES OF THE PARTIES. 662 
 
 § 580. Fraud a basis of landlord's liability. — Even in the absence 
 of special provisions in a lease in regard to warranty or repairs, one 
 ground on which a landlord may be liable to his tenant for personal 
 injuries caused by a defect in the premises is that he has been guilty 
 of misrepresentation and fraud.^^ The lessor is not, however, liable 
 for injuries resulting to a lessee from the act of his agent in with- 
 holding information as to the defective condition of the premises un- 
 less there is such a concealment of defects not open to ordinary ob- 
 servation as to amount to fraud or deceit. Furthermore the repre- 
 sentations of the agent as to the conditions of leased premises, of 
 which he had the exclusive care, are not binding upon his principal 
 unless they were made at the time of the contract of letting and con- 
 stituted a part of the res gestae.^* In another case an agent, to make 
 repairs on rented premises, assured the tenant that they were safe for 
 occupation, and the tenant subsequently suffered personal injuries 
 from a defect in the premises. Yet the landlord was not liable. The 
 evidence merely showed that a person authorized only to make repairs, 
 and not authorized to make representations, stated the shed was safe 
 and there was no proof that he did not believe what he said or that he 
 had not some reasonable ground for believing the representations to be 
 true and no evidence was given to show that any fact was suppressed 
 that the landlord was bound to disclose to the tenant.^^ On another 
 occasion the defect causing the accident was so latent that it was not 
 discovered for five months. As it appeared from that that the assertion 
 made by the lessors as to the safety of the premises was not fraudu- 
 lently made, but was warranted by the appearance of the premises, and 
 was believed to be true when made, they could not be charged with 
 fraud in making it.^" Yet it has been declared, in a case of this kind, 
 that the affirmation of something as true, regarding the truth or 
 falsity of which the speaker is ignorant, is as much under the inter- 
 diction of the law as a false averment knowingly made." Still, as a 
 general rule, a lessor is not bound to disclose any defects in the struc- 
 ture or defects in the condition of premises that makes them unfit for 
 
 N. W. 913; McCarthy v. Fagin, 42 "Gate v. Blodgett, 70 N. H. 316, 48 
 
 Mo. App. 619. Atl. 281. 
 
 =^Cate V. Blodgett, 70 N. H. 316, =^ Daley v. Quick, 99 Cal. 179, 33 
 
 48 Atl. 281; Perez v. Rabaud, 76 Pac. 859. 
 
 Tex. 191, 13 S. W. 177; Gaither v. ''« Toner v. Meussdorffer, 123 Cal. 
 
 Hascall-Richards &c. Co., 121 N. Car. 462, 56 Pac. 39. 
 
 384, 28 S. E. 546; Cole v. McKey, " Piirsel v. Teller, 10 Colo. App. 
 
 66 Wis. 500, 29 N. W. 279. 488, 51 Pac. 436. Citing Story's Eq., 
 
 § 193. 
 
 II
 
 663 LAifDLORD'S EESPONSIBILITY FOR CONDITION OF PREMISES. [§ 581 
 
 habitation, and on that account a statement by a landlord that the 
 plumbing is in good ordel" is to be regarded merely as an expression 
 of opinion and not as an assertion of a f act.^^ There is a material 
 distinction, however, tjeween passive concealment and active miscon- 
 duct, such as a false representation which would necessarily, if relied 
 on,' have some effect in inducing the other party to enter into the con- 
 tract.^^ A misrepresentation in regard to the condition of the house 
 upon which the lessee is intended to rely, is held to justify him, on 
 the discovery of the fraud, in abandoning the premises and relieve him 
 from all further olDligations under the lease.^" Where the fraud, 
 which induced the acceptance of a lease, went to the amount of con- 
 sideration to be paid for it, it was held that the lessee could retain the 
 estate and sue to recover the damages caused by the fraud."^ A lessee 
 is not precluded from avoiding a lease on account of fraud, because of 
 his covenant that he received the premises in good order and con- 
 dition.^ ^ But where a lessee, after renting a house on the representa- 
 tion that it was free from sewer gas, remained in the house and paid 
 rent with knowledge of the presence of such gas, this was held to be 
 an election to treat the lease as valid in spite of the misrepresenta- 
 tion.^^ 
 
 § 581. When there are concealed defects, attended with danger 
 to an occupant and which a careful examination would not discover, 
 known to the lessor, the latter is bound to reveal them in order that 
 the lessee may guard against them.'''* Traps or contrivances may exist 
 by means of which the most careful occupant might be injured. "Such 
 traps or contrivances," says Mr. Justice Field, "are not merely a want 
 of repair. They are, in a sense, active agencies of mischief, which no 
 tenant would expect to find in even a decayed and ruinous tenement."*'^ 
 The landlord's liability may be independent of either fraud or mis- 
 
 ^ Wilkinson v. Clauson, 29 Minn. "^ Guffey v. Clever, 146 Pa. St. 548, 
 
 91, 12 N. W. 147; Coulson v. Whit- 23 Atl. 161. 
 
 ing, 12 Daly (N. Y.) 408. «= Pursel v. Teller, 10 Colo. App. 
 
 '' Doggett V. Emerson, 3 Story 488, 51 Pac. 436. 
 
 (U. S.) 700, 733; Smitli v. Country- "^Morey v. Pierce, 14 111. App. 91. 
 
 man, 30 N. Y. 655, 680. "^ Cowen v. Sunderland, 145 Mass. 
 
 ^'Pursel V. Teller, 10 Colo. App. 363, 14 N. E. 117; Sunasack v. 
 
 488, 51 Pac. 436; Jackson v. Odell, Morey, 196 111. 569, 63 N. E. 1039, 
 
 12 Daly (N. Y.) 345; Keates v. reversing 98 111. App. 505; Shack- 
 
 Cadogan, 10 C. B. 591, 70 E. C. L. ford v. Coffin, 95 Me. 69, 49 Atl. 57; 
 
 591; Cornfoot v. Fowke, 6 M. & W. O'Malley v. Twenty -five Associates, 
 
 358, 373. 178 Mass. 555, 60 N. E. 387. 
 
 «= Bowe v. Hunking, 135 Mass. 380.
 
 § 582] RIGHTS AXD LIABILITIES OF THE PARTIES. 664 
 
 representation ; mere negligence in failing to communicate his knowl- 
 edge is sufficient to fix his liability. This doctrine was applied in a 
 case where an old cesspool had been covered over with boards and from 
 four to six inches of earth on which grass and weeds were growing. 
 The landlord was liable for injury suffered by the tenant from falling 
 into the cesspool.''® And again the landlord was liable where he knew 
 of a defect in a clamp used for hoisting in a factory, and the clamp 
 broke causing injury to an employe of the lessee. The defect was not 
 known to the lessee or discoverable by a reasonable examination of the 
 premises.®^ 
 
 A landlord is not an insurer, but if he knows that the premises he is 
 about to let are defective, especially if the dangerous place is not ob- 
 vious and he does not inform the tenant of the defect, he is liable for 
 any injury caused thereby to the tenant or a member of his family. 
 The law requires good faith of the landlord.^® 
 
 In Minnesota an employer's liability act makes an employer liable 
 to his servant for injuries caused by dangerous and defective machin- 
 ery. It followed that where a dangerous machine existed at the time a 
 warehouse was leased, the landlord was liable for an injury resulting 
 to an employe of a tenant.®^ 
 
 § 582. landlord's duty to learn of defects. — The view supported 
 by the better reason as well by courts carrying the greater weight 
 limits the obligation of the landlord to disclosing defects already 
 known to him without examining the property to discover defects. He 
 has done his whole duty in telling of all the secret defects of which he 
 has knowledge."" Chief Justice Holmes, speaking for the Massa- 
 chusetts court, said: "No doubt a duty to take reasonable care to 
 secure reasonable safety might be imposed upon landlords on grounds 
 of policy, irrespective of the date of the lease. But we see no suffi- 
 cient reason for departing from the general rule when we consider the 
 relation of landlord and tenant from the point of view of contract, and 
 if there is no undertaking to give the tenant more than he hires, we 
 can see no ground for holding a landlord liable in tort for not mak- 
 
 ^' Cowen v. Sunderland, 145 Mass. «' Tvedt v. Wheeler, 70 Minn. 161, 
 
 363, 14 N. E. 117. 72 N. W. 1062. 
 
 ®^ Anderson v. Hayes, 101 Wis. ''" O'Malley v. Twenty-five Associ- 
 
 538, 77 N. W. 891. ates, 178 Mass. 555, 60 N. E. 387; 
 
 ^ Moore v. Parker, 63 Kan. 52, 64 Shackford v. CoflSn, 95 Me. 69, 49 
 
 Pac. 975; McCarthy V. Fagin, 42 Mo. Atl. 57; Coke v. Gutkese, 80 Ky. 
 
 App. 619. 598. 
 
 !
 
 665 landlord's responsibility for condition CF PRE:iIISES. [§ 583 
 
 ing the same improvement or for not mentioning what he did not 
 know.'^" 
 
 A rule placing greater responsibility on the landlord has been 
 adopted by some courts however. This is stated to be that "in the ab- 
 sence of a contract to repair or warranty of condition, both the land- 
 lord and tenant must use reasonable care and diligence. If the ten- 
 ant neglect such reasonable care and diligence to ascertain the condi- 
 tion of the premises, or knowing their condition assumed the risk, 
 then he cannot recover against the landlord. On the other hand, if 
 the landlord neglect to use reasonable care and diligence in ascertain- 
 ing whether his premises are safe or if he actually knows they are un- 
 safe and conceals or misrepresents their condition, then he is liable, 
 the tenant being in no fault. It is not on the ground of an insurer 
 or warrantor of condition under his lease contract, but on the ground 
 of the obligation implied by law not to expose the tenant or the pub- 
 lic to danger which he knows, or in good faith should know, and 
 which the tenant does not know and cannot ascertain by the exercise 
 of reasonable care and diligence."^^ 
 
 § 583. Unsanitary condition of leased house. — The same general 
 rules in regard to a landlord's responsibility for injuries apply in 
 cases of sewer gas and defective plumbing. Improper drainage in a 
 leased house caused the tenant to have diphtheria but the landlord was 
 held not liable in the absence of misrepresentation and deceit. This 
 result was reached on the ground that defective plumbing would not 
 be regarded as a hidden defect, although it might be known to the 
 landlord and not to the tenant. The court stated the rule to be that : 
 "A lessor is not liable to a tenant of the lessee for injuries resulting 
 from the unsanitary condition of the premises, in the absence of 
 fraudulent concealment of the defects complained of, a warranty of 
 fitness, or an agreement to repair."''^ In speaking of the general rule 
 of non-liability Judge Holmes said : "And this rule cannot be eluded 
 by showing that the tenant did not know of a defect and that the land- 
 lord did, and then asking a jury to pronounce it a secret source of 
 danger. Everybody knows that houses in a city have drains, and that 
 drains are liable to get out of order or prove unsatisfactory. The 
 
 "O'Malley v. Twenty-five Associ- "Towne v. Thompson, 68 N. H. 
 ates, 178 Mass. 555, 559, 60 N. E. 317, 44 Atl. 492. But see Tyler v. 
 387. Disbrow, 40 Mich. 415. 
 
 "Hines v. Wilcox, 96 Tenn. 328, 
 334, 34 S. W. 420.
 
 § 58-i] EIGHTS AND LIABILITIES OF THE PARTIES. 666 
 
 I 
 
 possibility is manifest and there is strong ground for requiring the 
 tenant to insist on a warranty, if he does not wish to take the risk."^* 
 But a tenant has a right to rely on the landlord's asstrrance that 
 premises are free from sewer gas and in a healthy condition, and if 
 the landlord misrepresents he is liable in damages.'^^ So where a 
 lessor is guilty of fraud in representing that plumbing in a dwelling 
 house is in good sanitary condition, this furnishes a defense for lessee 
 when sued for rent.'^ All undertakings in regard to the condition of 
 a house do not, however, cover the plumbing. The words of a lease 
 on which this question arose were these : "It is understood and agreed 
 that the owner shall not be called upon or liable for any repairs what- 
 soever on said premises during the term ; the house being now in per- 
 fect order," This clause referred only to repairs. "The agreement 
 that the house was *in perfect order' had respect to its condition as an 
 edifice in perfect repair, and not to the present or future state of the 
 air within it.""^ 
 
 § 584. Duty on landlord to warn against infection. — Defects in 
 the plumbing of a building cannot be discovered, perhaps, by any ex- 
 amination that the intending tenant can be expected to make, but yet 
 it has never been held that the landlord is bound under penalty of 
 fraud, to disclose such defects, even though he is aware of them. The 
 tenant is as much bound to make ordinary repairs to the plumbing as 
 he is to make any other ordinary repairs in a house that he impru- 
 dently leases while it is out of order.'^* But there is a duty on a lessor 
 who knows that there is a special danger from infection to disclose it 
 to a lessee. Thus, the combined facts that there had been diphtheria 
 in a house, and that the drains were defective, were enough to warrant 
 the Jury in finding that the lessor knew, or ought to have known, as a 
 prudent man, that this comlnnation of circumstances introduced a 
 special danger of infection from the drains. "But it is not enough 
 that the landlord knows of the source of danger, unless also he knows 
 or common experience shows that it is dangerous. He is bound at his 
 peril to know the teachings of common experience, but he is not 
 bound to foresee results of which common experience would not warn 
 
 '" Cutter v. Hamlen, 147 Mass. 471, Wallace v. Lent, 1 Daly (N. Y.) 
 
 475, 18 N. E. 397. 481. 
 
 "Sunasack v. Morey, 196 111. 569, "Foster v. Peyser, 9 Cush. 
 
 63 N. E. 1039, reversing 98 111. App. (Mass.) 242. 
 
 505. " Blake v. Ranous, 25 111. App. 
 
 "Wolfe V. Arrott, 109 Pa. St. 473; 486; Coulson v. Whiting, 12 Daly 
 
 (N. Y.) 408.
 
 6G7 landlord's responsibility for condition of premises. [§ 585 
 
 him and which only a specialist would apprehend/'^^ A landlord 
 could be charged with special knowledge of danger of infection when, 
 knowing of the existence of a disused privy vault filled with fecal 
 matter and stagnant water, he took measures to remove the nuisance 
 which were inadequate and insufficient. "If the condition of the vault 
 was a dangerous one and the defendant's attention was called to it 
 and he undertook to remedy it, and used means which were ineffectual 
 for that purpose, and which he knew, or ought to have known, were 
 ineffectual, he cannot escape liability by employing a servant to do the 
 work or escape the consequences of that servant's neglect to do the 
 work properly." The landlord was responsible in damages for disease 
 caused by the offensive odors arising from the vault.^" A landlord 
 who lets premises, knowing they are infected by a contagious disease, 
 without notifying the tenant thereof, is liable to the latter, in case the 
 disease is communicated, for the damages sustained.^^ And where a 
 landlord improperly filled up an open well and then built over it so 
 that it became a cesspool and a nuisance to the tenant who subse- 
 quently rented the premises, causing the death of a member of the 
 tenant's family, it was held that the landlord was liable to the tenant 
 for such improper use of his premises on the doctrine that one must so 
 use his own premises as not to cause injury to others.*^ 
 
 In the course of a tenancy at will, the landlord discovered a defect 
 in a drain on the premises but failed to repair it or to inform the ten- 
 ant of it. The defect was an ordinary defect in the drain in use on 
 the premises, and the danger was the ordinary danger from that source. 
 The tenant contracted typhoid fever from this defect but the land- 
 lord was held not to be responsible in damages. He was under no ob- 
 ligation to repair the defect nor was he under obligation to disclose it.®^ 
 
 § 585. Liability to guests of the tenant. — The general doctrine as 
 to the restricted responsibility of a landlord for personal injuries 
 caused to the tenant by defects in the premises applies to visitors of 
 the tenant on the leased premises. The law leaves it to the tenant to 
 say who shall be his guest in his private dwelling. And if a guest 
 does so enter and while there is injured, without his fault, by some 
 defect therein, he must seek his damages from him whose invitation 
 impliedly assured him he could enter safely, and who alone is responsi- 
 
 " Cutter v. Hamlen, 147 Mass. 471, " Kern v. Myll, 80 Mich. 525, 45 
 
 18 N. E. 397, per Holmes, J. N. W. 587. 
 
 '"Martin v. Richards, 155 Mass. «' Bertie v. Flagg, 161 Mass. 504, 
 
 381, 29 N. E. 591. 37 N. E. 572. 
 
 «^ Cesar v. Karutz, 60 N. Y. 229.
 
 §' 586] EIGHTS AND LIABILITIES OF THE PARTIES. 668 
 
 ble for the defect which caused the injury. In such a case the guest 
 can have no greater claim against the lessor than the lessee himself 
 and the members of his family have.^* In one case a business visitor 
 of the tenant was injured by falling down an embankment adjoining 
 a walk leading from the street to the door of the building owned by 
 the landlord. The accident happened in the night time. There was 
 no defect in the walk itself. It was rendered dangerous, if at all, by 
 the want of a railing or by the absence of a light or some other warn- 
 ing. The visitor sued the landlord but was not allowed to recover, 
 because the landlord had been guilty of no negligence toward him.*^ 
 This same restriction upon the liability of the landlord applies to sub- 
 tenants, servants, employes, and to members of the tenant's family. 
 The reason is that entering under the tenant's title, and not by any 
 invitation, express or implied, from the owner, they assume the risk 
 as the tenant does.^® Persons who occupy by the tenant's permission 
 cannot be considered as occupying by the invitation of the landlord 
 so as to make him liable to them in a greater extent than he is liable 
 to the tenant. ^^ A sub-tenant who occupies in the face of a prohibi- 
 tion in the lease against sub-letting is in no position to call the original 
 landlord to account for defects in the premises. Under such circum- 
 stances the landlord can be made responsible neither under his contract 
 to repair, nor by reason of a duty in regard to common passage ways.** 
 
 § 586. Injuries to property of the tenant. — Under a lease ex- 
 pressly exempting a landlord from any obligation to make repairs or 
 improvements upon the premises he is not liable to the tenant for dam- 
 ages to his goods occasioned by the leased premises becoming and re- 
 maining out of repair. If the building was so out of repair as to 
 render it unfit for occupancy, the tenant had a right to make the re- 
 pairs himself or vacate the building.*^ In the absence of contractual 
 
 "McKenzie v. Cheetham, 83 Me. 1032; Towne v. Thompson, 68 N. 
 
 543, 22 Atl. 469. H. 317, 44 Atl. 492; Robbins v. 
 
 '=Mellen v. Morrill, 126 Mass. 545. Jones, 15 C. B. (N. S.) 221, 240, 109 
 
 To same effect see Eyre v. Jordan, E. C. L. 221. 
 
 Ill Mo. 424, 19 S. W. 1095. " Bowe v. Hunking, 135 Mass. 
 
 ^^ Smith V. State, 92 Md. 518, 48 380; Robbins v. Jones, 15 C. B. (N. 
 
 Atl. 92; Jaffe v. Harteau, 56 N. Y. S.) 221, 109 E. C. L. 221; Jaffe v. 
 
 398; Cole v. McKey, 66 Wis. 500, 29 Harteau, 56 N. Y. 398. 
 
 N. W. 279; Ryan v. Wilson, 87 N. *' Donaldson v. Wilson, 60 Mich. 
 
 Y. 471; Clyne v. Helmes, 61 N. J. 86, 26 N. W. 842; Cole v. McKey, 66 
 
 L. 358, 39 Atl. 767; Bowe v. Hunk- Wis. 500, 29 N. W. 279. 
 
 ing, 135 Mass. 380; Whitmore v. '" Beneteau v. Stubler, 79 Minn. 
 
 Orono &c. Co., 91 Me. 297, 39 Atl. 259, 82 N. W. 583. 
 
 1
 
 669 landlord's responsibility for coxditiox of premises, [§ 587 
 
 obligation the landlord, as regards his tenant, is only liable for acts 
 of misfeasance, but not of non-feasance. If the landlord is not bound 
 to repair, unless upon covenant to do so, it must logically follow that 
 any injuries arising from a failure on his part to repair can give no 
 cause of action to the tenant, whether resulting to the tenant's goods 
 or to his person. If the landlord owes no duty to his tenant in this 
 regard, then certainly negligence cannot be imputed to him.^** If a 
 landlord leases a cellar for storing goods, and represents that it is dry 
 and safe from water, the fact that its walls are defectively constructed, 
 so that as the result of a rainstorm and high tide, the water is backed 
 up in a sewer and forced into the cellar, and the goods are injured, 
 does not give the lessee a cause of action in tort to recover damages. 
 The damage does not result from any affirmative wrong done by the 
 landlord, or neglect of duty on his part, for which he can be held re- 
 sponsible in such an action.^^ In New Hanpshire responsibility in 
 such a case seems to rest on the negligence of the landlord in con- 
 structing the drain, and it has been held in that state that if tenants, 
 without fault on their part, are injured by the flow of water on their 
 goods, the landlord is liable, provided it can be shown he was guilty 
 of negligence in the construction of the drain or in allowing it to re- 
 main out of repair after notice of its condition.^- 
 
 A lessor is liable for his improper or negligent management of 
 parts of a demised building not included in a lease, whereby the lessee 
 is injured and this result does not encroach on the rule that there is 
 no implied warranty in the lease of a building that it is well built or 
 fit for any particular purpose.®^ 
 
 § 587. By statute in Georgia the landlord must keep the prem- 
 ises in repair, and is liable for all substantial improvements placed 
 upon them by his consent.^-* He is not responsible to third persons 
 for damages resulting from the negligent or illegal use of the prem- 
 ises by the tenant. But he is responsible to others for damages aris- 
 ing from defective construction, or for damages from failure to keep 
 the premises in repair.^^ The effect of these sections of the code is to 
 make a landlo-rd liable to his tenant for injuries caused by defects in 
 the premises of which he had notice but failed to repair. Thus, the 
 
 »°Ward V. Fagin, 101 Mo. 669, 14 "' Railton v. Taylor, 20 R. I. 279, 
 
 S. W. 738. 38 Atl. 980. 
 
 " People v. Walden, 51 Cal. 588. "* Civ. Code, § 3123. 
 
 »= Scott v. Simons, 54 N. H. 426, "» Civ. Code, § 3118. 
 citing Alston v. Grant, 3 E. & B. 
 128, 77 E. C. L, 128.
 
 § 587] RIGHTS AND LIABILITIES OF THE PARTIES. 670" 
 
 landlord is responsible for damage caused to the tenant's goods by a 
 leaky rooP® and could be held liable for personal injuries to the ten- 
 ant caused by a defect in the premises.®'^ It is essential, however, to 
 create this liability that the landlord shall have notice of the lack of 
 repair and an opportunity to remedy the defect. He is not liable 
 when he has no notice of the defect and has not been notified to re- 
 pair.^^ "The use of the tenements really belongs to the tenant during 
 the lease ; they are his property to use for the term for which they are 
 rented ; and the landlord has no right to enter upon them, except by 
 permission of the tenant during the term."^® Nothing more than a 
 general notice of lack of repair is necessary, however. On receiving 
 such notice it becomes the landlord's duty to inspect and investigate 
 in order that he may make such repairs as the safety of the tenant re- 
 quires. It follows, therefore, that when, after such notice, the land- 
 lord fails within a reasonable time to make the repairs, he is charge- 
 able with notice of all the defects that a proper inspection would dis- 
 close.^°° Xotice from the tenant of the need of repairs is not neces- 
 sary when the landlord occupies a part of the demised premises, and 
 can be presumed to know the need of repairs.^"^ The landlord is not 
 liable to the tenant for damages resulting from unforeseen and extra- 
 ordinary causes. Thus the statutory duty of landlord to repair would 
 not make him liable where a leased storeliouse was unroofed by a sud- 
 den and unusual storm.^"^ 
 
 The extent of a landlord's liability to strangers by virtue of these 
 statutes is somewhat modified by the general common-law doctrine. 
 Thus, the acts were effective to create a liability on the part of the 
 landlord for a defective coal hole in front of leased premises which 
 caused injury to a traveler on the highway. The landlord had notice 
 of the defect but there was no proof that it existed at the time of the 
 demise.i"^ But a landlord was held not liable for injury received by 
 a person from falling on ice which had been allowed by the tenants to 
 accumulate and remain on a sidewalk abutting on the premises. This 
 was true, although the ditch which caused the water to accumulate 
 
 ^Guthman v. Castleberry, 48 Ga. i"" Stack v. Harris, 111 Ga. 149, 36 
 
 172; Whittle v. Webster, 55 Ga. 180. S. E. 615. 
 
 »^ Stack v. Harris, 111 Ga. 149, 36 "^ Guthman v. Castleberry, 49 Ga. 
 
 S. E. 615; Archer v. Blalock, 97 Ga. 272; White v. Montgomery, 58 Ga. 
 
 719, 25 S. E. 391. 204. 
 
 "« Ocean Steamship Co. v. Hamil- "^ Brunswick &o. Co. v. Spencer, 
 
 ton, 112 Ga. 901, 38 S. E. 204. 97 Ga. 764, 25 S. K 764. 
 
 »» White V. Montgomery, 58 Ga. . '<« Collier v. Hyatt, 110 Ga. 317, 35 
 
 204. S. E. 271.
 
 671 LIABILITY IMPOSED BY LESSOR'S AGREEMENT TO REPAIR. [§ 588 
 
 was on the premises at the time of the demise. Taken all together 
 the ditch, the accumulation of water, and the formation of ice 
 amounted to a nuisance. This nuisance was, however, the result of the 
 acts of the tenants who were in exclusive possession of the premises; 
 and under such circumstances the landlord cannot be held liable in 
 damages for injuries resulting to a person from a nuisance maintained 
 by a tenant.^*** 
 
 Even in Georgia a landlord is not liable for damages caused by- 
 defective condition of premises where the injury is caused by con- 
 tributory negligence of tenant. The question of such negligence 
 must be determined by the jury.^**^ The common-law rule in re- 
 gard to contributory negligence has been slightly modified by a code 
 provision. The result of this modification has been stated as fol- 
 lows: "If the injury in question was occasioned by the negligence 
 of the landlord in failing to repair, the plaintiff, even though in some 
 degree negligent, could nevertheless recover provided her negligence 
 did not amount to a want of ordinary care, the exercise of which 
 would have prevented the injury. Negligence on her part short of a 
 want of such care should be considered by the jury in reducing the 
 damages.^"® 
 
 II. Liability Imposed hy Lessor's Agreement to Repair. 
 
 § 588. Lessor's obligation to repair. — In certain respects a demise 
 is more analogous to a sale of a limited interest in the premises than 
 to any other transaction the lessee becoming the temporary owner. 
 He has many of the rights of an owner as against the outside world 
 and many of the obligations of an owner as well. The lessor is only 
 interested by virtue of his reversionary right and by whatever stipu- 
 lation he has made for the payment of rent. It follows where there is 
 no stipulation on the part of the landlord to repair or that the prem- 
 ises shall remain in tenantable condition, no obligation to repair is 
 implied from the relation.^*^'^ The general rule is undisputed and is 
 settled by a long line of decisions that a lessor is in no case under 
 obligation to make repairs, unless by force of an express covenant or 
 
 ^<^ Gardner v. Rhodes, 114 Ga. 929, 81 Md. 315, 32 Atl. 515; Elliott v. 
 
 41 S. E. 63. Aiken, 45 N. H. 30; Scott v. Simons, 
 
 ^»= Johnson v. Collins, 98 Ga. 271, 54 N. H. 426; Sheets v. Selden, 7 
 
 26 S. E. 744. Wall. (U. S.) 416, 423; Gott v. 
 
 '"« Miller v. Smythe, 95 Ga. 288, 22 Gandy, 2 E. & B. 845, 75 E. C. L. 
 
 S. E. 532. 845; Pomfret v. Ricroft, 1 Wm. 
 
 "'Gallagher v. Button, 73 Conn. Saund. 321; Hart v. Windsor, 12 
 
 172, 46 Atl. 819; Gluck v. Baltimore, M. & W, 68.
 
 § 589] EIGHTS AXD LIABILITIES OF THE PAETIES. 673 
 
 contract to do so, or from statutory enactment/*'^ It necessarily fol- 
 lows that the landlord owes no duty and is under no obligation to re- 
 pair in a case where he has expressly covenanted with the tenant he 
 shall not be liable to make repairs. The contract of the parties is 
 then the measure of their duties and liabilities.^"^ Even when prem- 
 ises become defective by reason of deterioration or decay, the landlord 
 is not required to repair in the absence of covenants on his part and 
 rent is payable even when demised premises become untenantable by 
 inherent defect, provided they were habitable at the time of the de- 
 mise, there being no fraud on the part of the landlord.^" 
 
 § 589. An obligation to repair cannot be placed on the landlord 
 without clear and explicit language to that efEect. Such a duty can- 
 not be raised by inference. The landlord may, and often does, volun- 
 tarily make particular repairs for the preservation of the estate and the 
 benefit of the reversion, as well as to induce a tenant to continue a 
 tenancy which otherwise he might terminate on short notice. The 
 fact that a landlord makes some repairs creates no obligation on his 
 part to make others."^ If repairs are made by the landlord with such 
 frequency and under such circumstances 'as to furnish evidence of an 
 agreement between the parties that the landlord should make repairs, 
 
 ^"* Alabama: Burks v. Bragg, 89 lina: City Council v. Moorhead, 2 
 
 Ala. 204, 7 So. 156. California: Cal- Rich. L. (S. Car.) 430. New Jersey: 
 
 lahan v. Loughran, 102 Cai. 476, 36 Heintze v. Bentley, 34 N. J. Eq. 562. 
 
 Pac. 835; Brewster v. DeFremery, Texas: Weinsteine v. Harrison, 66 
 
 33 Cal. 341. Connecticut: Hatch v. Tex. 546, 1 S. W. 626. England: 
 
 Stamper, 42 Conn. 28. Indiana: Gott v. Gandy, 2 E. & B. 845, 75 E. 
 
 Mattler v. Strangmeier, 1 Ind. App. C. L. 845; Rhodes v. Bullard, 7 East 
 
 556, 27 N. E. 985; Hanson v. Cruse, 116. 
 
 155 Ind. 176, 57 N. E. 904; Kellen- ^"^ Barrett v. Boddie, 158 111. 479, 
 
 berger v. Poresman, 13 Ind. 475; 42 N. E. 143; Ely v. Ely, 80 111. 532; 
 
 Estep v. Estep, 23 Ind. 114. Ken- Moffatt v. Smith, 4 N. Y. 126; Mum- 
 
 tucky: Proctor v. Keith, 12 B. Mon. ford v. Brown, 6 Cow. (N. Y.) 475; 
 
 (Ky.) 252. Maine: Libbey v. Tol- Corey v. Mann, 6 Duer (N. Y.) 679. 
 
 ford, 48 Me. 316. Massachusetts: ""Petz v. Voigt Brewing Co., 116 
 
 McLean v. Piske &c. Co., 158 Mass. Mich. 418, 74 N. W. 651; Fisher v. 
 
 472, 33 N. E. 499. Michigan: Clark Thirkell, 21 Mich. 1, 22, 4 Am. R. 
 
 v. Babcock, 23 Mich. 164. Missouri: 422; Gott v. Gandy, 2 E. & B. 845, 
 
 Morse v. Maddox, 17 Mo. 569. 75 E. C. L. 845. 
 
 Nebraska: Murphy v. Illinois &c. ^"McLean v. Fiske &c. Co., 158 
 
 Bank, 57 Neb. 519, 77 N. W. 1102; Mass. 472, 33 N. E. 499; McKeon v. 
 
 Turner v. Townsend, 42 Neb. 376, Cutter, 156 Mass. 296, 31 N. E. 389; 
 
 60 N. W. 587. New York: Witty v. Mattler v. Strangmeier, 1 Ind. App. 
 
 Matthews, 52 N. Y. 512; McAlpin v. 556, 27 N. E. 985. 
 Powell, 70 N. Y. 126. South Caro-
 
 673 LIABILITY IMPOSED BY LESSOR'S AGEEEMEXT TO REPAIR. [§ 590 
 
 the natural inference would be, in regard to portions of the property 
 in use and peculiarly under the observation of the tenant, that the 
 landlord was to repair on notice of defects, and not that he should as- 
 sume to inspect the property so frequently as to discover and remedy 
 all defects without notice. ^^^ A provision in the lease that the "prem- 
 ises shall be at all times open to the inspection of said lessor or his 
 agents, to applicants for purchase or lease, and for necessary repairs," 
 does not prove that repairs made by the landlord were made in pur- 
 suance of a contract. The lease contained no express agreement to 
 repair, and the jury were not at liberty to read such an agreement 
 into it by the aid of the reservation to the lessor of a right of entry to 
 make necessary repairs.^^^ 
 
 The reparation of a fire-escape would hardly come within the range 
 of ordinary repairs to a building. It would be extremely difficult to 
 define the limits of a statutory duty to maintain fire-escapes, unless it 
 devolved upon the owner in a tenement house occupied by many per- 
 sons. Even if such a duty might be assumed by another, under an ex- 
 press agreement, it could not be considered as constituting a part of 
 the obligations of a tenant who hired without any agreement as to re- 
 pairs. But though a landlord is bound to repair fire-escapes, he owes 
 no duty to keep them safe for children to play on. A child is a tres- 
 passer when he enters upon the fire-escape and occupies the position 
 of one who comes upon the property of another without right. Such a 
 person can maintain no action, and even a license is not a protection 
 unless some inducement or enticement" is held out by the owner. The 
 child clearly had no right to go upon the platform and was there for 
 no legitimate purpose. It was not intended for any such use, but was 
 to be used as a protection of life in case of danger from fires, and was 
 not intended as a balcony.^^* 
 
 § 590. Payment by landlord for repairs made by tenant. — If the 
 landlord, after the lease is entered into, and being under no legal 
 obligation to make repairs, promises to make them, the promise will 
 not support an action. By law the duty to repair devolves on the ten- 
 ant. The landlord's promise is without consideration. It is no part of 
 the original agreement, having been made while the tenant was occu- 
 pying the premises. A mere promise by a landlord to repair the de- 
 
 1" McLean v. Fiske &c. Co., 158 "' Gulliver v. Fowler, 64 Conn. 556, 
 
 Mass. 472, 33 N. E. 499; Hutchinson 30 Atl. 852. 
 
 V. Cummings, 156 Mass. 329, 31 N. "* McAlpin v. Powell, 70 N. Y. 126. 
 
 E. 127. 26 Am. R. 555. 
 
 Jones L. & T.— 43
 
 § 590] RIGHTS AXD LIABILITIES OF THE PARTIES. 
 
 raised premises before the tenant's term expires, upon the agreement 
 that he will not abandon the property, is without consideration and 
 cannot be enforced.^^^ However, an agreement between lessor and 
 lessee for the making of repairs, the costs of which are to be borne 
 jointly by the two, is valid and enforcible. It was urged that the 
 undertaking on the landlord's part was without consideration, and to 
 support this argument several cases were cited to the effect that for 
 one to agree to do what he is already bound to do, or for one to waive 
 a legal obligation on the part of the other, is nudum pactum; but that 
 is not this case. The lease did not require any particular repairs or im- 
 provements to be made. The tenant was not obliged to make any im- 
 provements, and the agreement to make and in part to pay for the 
 particular improvements which were made was a sufficient considera- 
 tion for the landlord's promise to pay for the remainder.^ ^^ 
 
 Since the obligation of a landlord to repair or rebuild leased prem- 
 ises rests solely on express contract, it follows that when the landlord 
 is not bound to repair he is not bound to pay for repairs made by the 
 tenant. ^^^ It was argued that destruction of a window by a storm 
 was an inevitable accident, and for that reason the tenant could not be 
 compelled to restore the premises, or to pay for its restoration by the 
 landlord, and therefore that the landlord is liable for the restoration 
 of the window. This result does not follow even though the destruction 
 was by inevitable accident, so that the tenant would not have been 
 bound to restore the premises at the expiration of the term of the 
 lease."^ The tenant must determine for himself the fitness of the 
 buildings for use or whether they are sufficiently commodious for his 
 purpose. If he repairs or enlarges the buildings for his own con- 
 venience, even though it be by the persuasion of the landlord, he does 
 not, in the absence of agreement or promise, thereby acquire a right to 
 charge the landlord with the expense of the repairs. The failure of a 
 landlord to erect a house according to his agreement does not author- 
 ize the tenant to charge the cost of repairing another house on the 
 landlord."^ A tenant who makes improvements of a permanent and 
 
 "' Eblin v. Miller, 78 Ky. 371 ; Lib- linois &c. Bank, 57 Neb. 519, 77 N. 
 
 bey v. Tolford. 48 Me. 316, 77 Am. W. 1102; Turner v. Townsend, 42 
 
 Det. 229. Neb. 376, 60 N. W. 587. 
 
 ""Woodwortn v. Thompson, 44 "« Turner v. Townsend, 42 Neb. 
 
 Neb. 311, 62 N. W. 450- 376, 60 N. W. 587. 
 
 "' Mull v. Graham, 7 Ind. App. "' Hopkins v. RatlifE, 115 Ind. 213, 
 
 561, 35 N. E. 134; Witty v. Mat- 17 N. E. 288. 
 thews, 52 N. Y. 512; Murphey v. 11-
 
 675 LIABILITY IMPOSED BY LESSOR'S AGREEMEXT TO REPAIR, [§ 591 
 
 fixed character can neither remove them or recover for their cost with- 
 out a special contract with the landlord.^ ^^ 
 
 § 591. Exempting lessee from obligation to repair. — A common 
 form of lease binds the lessee to keep the premises in repair except as 
 to unavoidable accidents and usual wear and tear. In such a case it 
 seems that the law will not imply a contract on the part of the lessor 
 to repair damages caused by unavoidable accident. A tenant sued his 
 landlord in assumpsit because the landlord failed to repair a wall 
 which had become ruinous. A demurrer to the declaration was sus- 
 tained. There appears to have been no express covenant for quiet 
 enjoyment or to repair damages caused by unavoidable accidents, and 
 such a contract will not be implied. No implied covenant to rebuild 
 or repair damages on the part of the landlord arises at common law 
 from an exception of casualties by fire, tempest or other causes in the 
 tenant's covenant to repair.^ ^^ 
 
 § 592. The landlord's responsibility for damages caused by his 
 failure to perform his contract to repair rests altogether upon his 
 breach of contract. Thus in a case where a landlord agreed to repair, 
 but failed to do so after being notified of the necessity for repairs, 
 plaster fell and injured the tenant's goods. The tenant was not guilty 
 of contributory negligence because ignorant of the liability of plaster 
 to fall. The court allowed the tenant to recover for the injury suf- 
 fered in an action of assumpsit. There is no reason why the landlord 
 should not be liable for a breach of his contract, just as any other 
 person who is a party to a contract would be. Where he has violated 
 his contract he should be liable for all the injuries resulting there- 
 from.^-^ 
 
 But it may be stated as a general rule that a landlord, who has 
 covenanted to repair, is not liable in tort for personal injuries result- 
 ing from the want of repair.^^^ Such injuries are too remote to be re- 
 
 "» Hedderich v. Smith, 103 Ind. 43 How. Pr. (N. Y.) 333; Arnold v. 
 
 203, 53 Am. R. 509. Clark, 45 N. Y. Super. Ct. 252; Tut- 
 
 "1 Kline v. McLain, 33 W. Va. 32, tie v. G. H. Gilbert Mfg. Co., 145 
 
 10 S. E. 11; Clifton v. Montague, 40 Mass. 169, 13 N. B. 465; Feary v. 
 
 W. Va. 207, 21 S. E. 858; Weigall Hamilton, 140 Ind. 45, 39 N. E. 516, 
 
 V. Waters, 6 Term R. 488. affirming 8 Ind. App. 615, 52 Am. 
 
 "= Mason v. Howes, 122 Mich. 329, St. 485; Hanson v. Cruse, 155 Ind. 
 
 81 N. W. 111. 176, 57 N. E. P04; New York Acad- 
 
 "' Collins v. Karatopsky, 36 Ark. emy &c. v. Hackett, 2 Hilt. (N. Y.) 
 
 316; Kabus v. Frost, 50 N. Y. Super. 217; Pryor v. Foster, 130 N. Y. 171, 
 
 Ct. 72; Spellman v. Bannigan, 36 29 N. E. 123; Sanders v. Smith, 
 
 Hun (N. Y.) 174; Flynn v. Hatton, 5 Misc. (N. Y.) 1; Brown v. To-
 
 §' 592] RIGHTS AND LIABILITIES OF THE PARTIES. 6761 
 
 covered as damages for the breach of contract and the duties arising 
 from the relation of landlord and tenant are not increased by such a 
 contract in respect to the duty of the landlord to provide for the per- 
 sonal safety of the tenant. In a recent case on this point it was said : 
 "Under the contract, appellant (the lessee) was entitled to the repairs 
 or to damages for the breach of contract. Appellees (the lessors) 
 broke their contract and are liable in damages. But what is the 
 measure? On principle, the landlord, who is paid by the tenant to 
 make repairs that he is not otherwise under obligation to make, should 
 be held to exactly the same liability that a stranger-contractor would 
 incur. Damages for personal injuries resulting from the mere con- 
 tinuance of obvious defects such as existed here and which the tenant 
 has contracted to have repaired, are not recoverable from the con- 
 tractor. They are deemed to be too remote and are not within the 
 contemplation of the parties at the time the contract was made. The 
 injury is attributable to the tenant's want of care in the use of the 
 property rather than to the contractor's breach."^^* The cases even 
 go so far as to hold that it is immaterial that the landlord has been 
 notified of the need of repair and has failed for an unreasonable time 
 to make the repairs.^^^ Ordinary damages for breach of a general 
 covenant to keep the premises in repair are the expenses of repair and 
 the loss of the premises while the party contracting was in default. 
 Such an agreement in no way contemplates any destruction of life or 
 casualties to the person or property which might accidentally result 
 from an omission to fulfill the agreement.^-^ 
 
 Where injuries under such circumstances were admittedly too re- 
 mote to be recovered in an action of contract, it was claimed they 
 could be recovered in an action of tort. But to permit a recovery for 
 such damages, based on the contract simply because it is in the form 
 of an action of tort, would be making a distinction that could not be 
 justified by reason or authority. There must be something more than 
 a mere failure on the part of the landlord to make the repairs he has 
 agreed to make. It makes no difference whether the form of the action 
 is ex delicto or ex contractu, the real and substantial gravamen of the 
 complaint is the alleged breach of contract, and in such a case the 
 same law is applicable to both classes of actions. A landlord, under 
 
 ronto General Hospital, 23 Ont. 599; "^ Brown v. Toronto General Hos- 
 
 Ploen V. Staff, 9 Mo. App. 309; pital, 23 Ont. 599. 
 
 Thompson v. Clemens, 96 Md. 196, '=*Flynn v. Hatton, 43 How. Pr. 
 
 53 Atl. 919. (N. Y.) 333. 
 
 "* Hanson v. Cruse, 155 Ind. 176, 
 
 57 N. E. 904, per Baker, C. J. .
 
 677 LIABILITY IMPOSED BY LESSOR'S AGREEMENT TO REPAIR. [§ 593 
 
 contract to repair, may, under some circumstances, be liable for dam- 
 ages for personal injuries by reason of a negligent failure to make 
 repairs; but in such case his negligence must be firmly established as 
 a basis for the liability. ^^^ 
 
 The tenant's only remedy is to make the repairs at the expense of 
 the landlord.^^^ In the case of slight repairs, the tenant is justified 
 after notice of want of repair and the lapse of a reasonable time, to 
 expend what is needed in making the repairs and charge it against his 
 landlord or take it out of his rent.^-^ 
 
 § 593. Notice to landlord of need of repairs. — The contract of a 
 landlord to attend to all repairs is not equivalent to a guaranty that 
 the premises should not become unsafe or insecure through lack of 
 repair. The contract does not require that the premises shall be pre- 
 vented from getting out of repair, but rather implies that they are 
 liable to become so. Such an agreement only binds the landlord to a 
 reasonable degree of care in inspecting the premises and reasonable 
 diligence and promptness in making necessary repairs. ^^'^ In fact a 
 tenant cannot sue his landlord for breach of his covenant to make re- 
 pairs until notice of the need of repairs has been given. Notice by the 
 tenant of the defects complained of is essential before there can be a 
 breach of the covenant. This rule is reasonable and convenient. By 
 casting the initiative on the tenant it leaves to him the power of hav- 
 ing the landlord's repairs executed at times and under circumstances 
 convenient to himself. By securing notice to the landlord, it gives him 
 the control which he ought to have over the extent and mode of re- 
 pair.^^^ 
 
 It is to be implied under the circumstances of most cases that the 
 landlord is to repair only on reasonable notice. The mere want of 
 repair, therefore, shows no such negligence as will support an action 
 in favor of the tenant or any sub-tenant for injury caused by an acci- 
 dent occurring from the lack of repair. If no complaint had been 
 
 "'Thompson v. Clemens, 96 Md. ""Frank v. Conradi, 50 N. J. L. 
 
 196, 53 Atl. 919, citing Baltimore &c. 23, 11 Atl. 480; Spellman v. Ban- 
 
 R. Co. v. Pumphrey, 59 Md. 390, nigan, 36 Hun (N. Y.) 174. See 
 
 398. McLean v. Fiske &c. Co., 158 Mass. 
 
 "'Brown v. Toronto General Hos- 472, 33 N. E. 499; Hutchinson v. 
 
 pital, 23 Ont. 599. Cummings, 156 Mass. 329, 31 N. E. 
 
 ""Beale & Taylor's Case, 1 Leon. 127. 
 
 237; Makin v. Watkinson, L. R. 6 "^ Huggall v. McKean. 1 C. & E. 
 
 Exch. 25, 29; Huggall v. McKean, 1 391; Makin v. Watkinson, L. R. 6 
 
 C. & E. 391, 394. But see Weigall Exch. 25. 
 V. Waters, 6 Term R. 488.
 
 § 594] RIGHTS AXD LIABILITIES OF THE PARTIES. 678 
 
 made, and it did not appear that the landlord knew the condition of 
 the premises, no negligence on his part can be shown.^^^ So where a 
 roof weighted with snow fell, the landlord was bound to restore the 
 roof because of his covenant to repair, but he was not obliged to make 
 good the damage caused by the accident, because he had no notice of 
 the lack of repair. In such a case the landlord does not covenant that 
 the building will not give way, but that, if it does, he will repair it, 
 he cannot therefore be held liable for damages occasioned by the fall 
 of the building.^^^ Notwithstanding a landlord's covenant to keep the 
 external parts of a building in good repair, he is entitled to a reasona- 
 ble opportunity to make repairs, and he is not bound to bear the ex- 
 pense of finding the tenant another residence while the repairs go 
 on.^'* 
 
 Where a landlord covenanted to repair, but the tenant failed to no- 
 tify him of the need of repairs and invited a person on the premises 
 who was injured by a defective step, the tenant who occupied was 
 prima facie liable for such injury and the landlord was not liable 
 even on his covenant to repair, because he had not been notified of the 
 need of repairs.^^^ The determining consideration in fixing liability 
 between lessor and lessee in cases of this kind is, who was in control 
 of the apparatus at the time of the accident. A lessor's agreement to 
 keep an elevator in repair at his own cost does not put him in posses- 
 sion, and so he is not liable for a fall of the elevator.^^*' But where the 
 landlord had control of a hoisting apparatus he was liable to a tenant 
 for an injury caused by a defect. ^^^ 
 
 § 594. Another ground on which the landlord's freedom from re- 
 sponsibility can be placed is the doctrine of contributory negligence. 
 
 Continued use by the tenant with knowledge of the dangerous condi- 
 tion is a clear assumption of the risk of accident which is not relieved 
 by the landlord's promise to repair.^^^ Knowing the premises are 
 unsafe, the liability of danger great, and the expense of repairs trifling, 
 it is the plain duty of the tenant to make them and thus save his 
 family from the threatened danger."^ It is but a matter of common 
 
 "=Marley v. Wheelwright, 172 "' Sinton v. Butler, 40 Ohio St. 
 
 Mass. 530, 52 N. E. 1066; Sinton v. 158. 
 
 Butler, 40 Ohio St. 158; Lieber v. "^ O'Malley v. Twenty-five Associ- 
 
 Blanc, 76 Cal. 173, 18 Pac. 260. ates, 170 Mass. 471, 49 N. E. 641, 
 
 ^^ Leavitt v. Fletcher, 10 Allen strong dissent by Holmes. J. 
 
 (Mass.) 119. '^McGinn v. French, 107 Wis. 54, 
 
 »^ Green v. Eales, 2 A. & E. (N. 82 N. W. 724. 
 
 S.) 225, 42 E. C. L. 648. "« Cook v. Soule, 56 N. Y. 420. 
 
 "» Ploen V. Staff, 9 Mo. App. 309.
 
 •679 LIABILITY IMPOSED BY LESSOR'S AGREEMEXT TO REPAIR. [§ 595 
 
 prudence and the tenant, knowing the danger of loss or injury to be 
 great cannot continue to use the dangerous premises, and hide behind 
 a, promise to repair.^*" Where the injured party has assumed the risk, 
 the landlord is not liable for an accident caused by a defective con- 
 struction in a common stairway of a tenement, even though the land- 
 lord be guilty of negligence in not replacing the defective part.^*^ 
 
 It has been suggested, however, that although a tenant may know 
 that premises are out of repair, he may not be in a position to realize 
 that the continued use of them is dangerous. The question as to 
 whether or not he was in the exercise of due care is a question of fact 
 to be passed upon by a jury ; and to convict the tenant of negligence, 
 it is necessary to show not only that the premises were defective, but 
 that the tenant knew of the danger. If they were out of repair, but 
 not so obviously so as that a person of ordinary prudence must have 
 known they were dangerous, then he is entitled to go to the jury upon 
 the question as to whether there was an apparent danger in their use.^*^ 
 
 § 595. Rights conferred on third persons by a covenant to repair. 
 
 A landlord's covenant to keep leased premises in repair does not 
 render him liable to a lodger, sub-tenant, or stranger who suffers in- 
 jury through a defect in the premises. ^*^ "The general rule of law 
 undoubtedly is that persons who claim damages on the ground that 
 they were invited into a dangerous place, where they received injuries, 
 must seek their remedy against the person who invited them. There 
 is nothing in the relation of landlord and tenant which changes this 
 rule. ... If the landlord warrants their fitness, the covenant stands 
 for the benefit of the lessee and not for the benefit of strangers to 
 the contract. And so, if the lessor engages with the lessee, to keep the 
 premises in repair, a breach of the agreement gives a right of action 
 only to the lessee.""* 
 
 That one who is no party to a contract of letting cannot sue in re- 
 spect of a breach of duty, arising out of the contract, in an action of 
 
 "" Town v. Armstrong, 75 Mich. '" Quay v. Lucas, 25 Mo. App. ,4 ; 
 
 580, 42 N. W. 983; Purcell v. Eng- Burdick v. Cheadle, 26 Ohio St. 393, 
 
 lish, 86 Ind. 34, 44 Am. R. 255; 397; Clancy v. Byrne, 56 N. Y. 129, 
 
 Miller v. Mariner's Church, 7 Me. 15 Am. R. 391; Donaldson v. Wilson, 
 
 51; Kampinsky v. Hallo, 52 N. Y. 60 Mich. 86, 26 N. W. 842; O'Leary 
 
 St. 265. V. Delaney, 63 Me. 584. 
 
 >" Vorrath v. Burke, 63 N. J. L. "' Burdick v. Cheadle, 26 Ohio St. 
 
 188, 42 Atl. 838. 393, 397, quoted in Quay v. Lucas, 
 
 i« Johnson v. Collins, 98 Ga. 271, 25 Mo. App. 4. 
 26 S. E. 744.
 
 § 596] RIGHTS AND LIABILITIES OF THE PARTIES. 680 
 
 tort is decided on similar principles."^ The general rule whether ap- 
 plied to contracts of letting or other contracts was very fully discussed 
 in an English case/*® where all the judges seriatim in exhaustive 
 opinions decided that the party to the contract alone can maintain 
 the action. "Doubtless where a covenant creates a duty, a neglect 
 to perform that duty is a ground of action for tort. But whenever 
 an action is founded on a breach of contract, the plaintiff suing in 
 respect thereof, must be a party or privy to the contract ; else he fails 
 to show a duty towards himself."^*^ 
 
 In a Massachusetts case, where an accident had been caused by a 
 defect in the sidewalk in front of leased premises, and the landlord 
 was under no obligation to repair, Chief Justice Shaw made the fol- 
 lowing suggestion : "If, indeed, there be an express agreement between 
 landlord and tenant, that the former shall keep the premises in re- 
 pair, so that in the case of a recovery against the tenant, he would have 
 his remedy over, then to avoid circuity of action, the party injured 
 by the defect and want of repair, may have his action in the first in- 
 stance against the landlord.""® For authority reference is made to 
 an English case,"^ for an injury sustained by a plaintiff by his leg 
 slipping through a hole in the foot pavement, into a vault, owing to 
 some plates being out of repair. It was held that an action could be 
 brought directly against the landlord, on his covenant to repair, to 
 avoid circuity of action. 
 
 § 596. Liability of landlord for unsafe repairs. — A landlord whose 
 neglect to use ordinary skill in making repairs on the demised prem- 
 ises causes a personal injury to the tenant, is liable therefor, although 
 his undertaking to make the repairs was gratuitous and by the ten- 
 ant's solicitation.^^*' Where a landlord made such repairs in per- 
 
 "''Robbins v. Jones, 15 C. B. (N. 131, 19 Atl. 108; Gill v. Middleton, 
 
 S.) 221, 238, 109 E. C. L. 221. 105 Mass. 477; Little v. McAdaras, 
 
 ""Alton v. Midland R., 19 C. B. (N. 38 Mo. App. 187; Glickauf v. 
 
 S.) 213, 115 E. C. L. 213. Maurer, 75 111. 289; Wertheimer v. 
 
 "'Clancy v. Byrne, 56 N. Y. 129, Saunders, 95 Wis. 573, 70 N. W. 824; 
 
 15 Am. R. 391, per Polger, J. Evans v. Murphy, S7 Md. 498, 40 
 
 "5 Lowell V. Spaulding, 4 Gush. Atl. 109; Jobnson v. Collins, 98 Ga. 
 
 (Mass.) 277. 271, 26 S. E. 744; Lamparter v. 
 
 "''Payne v. Rogers, 2 H. Bl. 350. Wallbaum. 45 111. 444; Benson v. 
 
 See also, Fisher v. Thirkell, 21 Mich. Suarez, 43 Barb. (N. Y.) 408; Calla- 
 
 1, 4 Am. R. 422; Perez v. Rabaud, ban v. Loughran, 102 Cal. 476, 36 
 
 76 Tex. 191, 13 S. W. 177. Pac. 835; Leslie v. Pounds, 4 Taunt. 
 
 ^^"Mann v. Fuller, 63 Kan. 664, 66 649. 
 Pac. 627; Gregor v. Cady, 82 Me.
 
 681 LIABILITY IMPOSED BY LESSOR'S AGREEMENT TO REPAIR. [§' 596 
 
 son and represented them to be safe, but they were so negligently 
 made that the tenant's wife fell and was injured, it was argued, that 
 upon a gratuitous undertaking of this nature, the defendant could only 
 be held responsible for bad faith or for gross negligence. But the re- 
 ply was that in assuming to make the repairs, the landlord professed 
 to have the requisite skill as a mechanic to accomplish the desired 
 result. The true question for the jury was, whether the defendant had 
 discharged the duty which he assumed, with due regard to the rights 
 of others. ^^^ The landlord has been held liable, generally, in such a 
 case without regard to the inquiry whether he acted in person or 
 through a servant ;^^^ and he has been held liable in cases where the 
 work was admittedly performed through a servant or agent, who 
 presumably was not an independent contractor.^^^ 
 
 However, a different rule has been outlined and applied to a case 
 where gratuitous repairs made by the landlord were performed through 
 the agency of a servant. This rule only puts on the landlord the obli- 
 gation to secure a skillful workman. In support of this view the 
 Kentucky court said: "The landlord did not agree to do the work 
 with his own hands, or to supervise its execution, nor did he pretend 
 to do either. His agreement was to have the work done by another 
 person. As we have already seen, the agreement was wholly gra- 
 tuitous, and he was only bound to do properly that which he undertook 
 to do, and he did that if he sent a suitable person to do the work, and 
 is not responsible for that person's negligence or unskillfulness."^^* 
 Of course, where the landlord employes an improper and unskillful 
 person to make alterations in a leased building, he is liable for injury 
 caused by the workman's lack of skill. This is so even though the 
 landlord would not be liable if he had employed an independent con- 
 tractor.^^^ 
 
 i"Gill v. Middleton, 105 Mass. through the want of due care by 
 
 477, to same effect Gregor v. Cady, which damage ensues to the other 
 
 82 Me. 131, 19 Atl. 108. In the note party, an action will lie for this 
 
 to Coggs v. Bernard, Smith Lead, misfeasance." 
 
 Gas. (6th Am. ed.) 355, it is said: "'Mann v. Fuller, 63 Kan. 664, 66 
 
 "A distinction exists between non- Pac. 627. 
 
 feasance and misfeasance,— between '" Little v. McAdaras, 38 Mo. App. 
 
 a total omission to do an act which 187; Evans v. Murphy, 87 Md. 498, 
 
 one gratuitously promises to do and 40 Atl. 109. 
 
 a culpable negligence in the execu- "* Eblin v. Miller, 78 Ky. 371, per 
 
 tion of it. . . . If a party makes Gofer, J. 
 
 a gratuitous engagement and actu- ^" Evans v. Murphy, 87 Md. 498, 
 
 ally enters upon the execution of 40 Atl. 109. 
 the business and does it amiss
 
 § 596] RIGHTS AXD LIABILITIES OF THE PARTIES. G82 
 
 It seems obvious that there must be some negligence for which the 
 landlord is responsible in order to make him liable. Thus a tenant 
 could not recover for an injury suffered by reason of the removal of 
 steps during the making of repairs^, such removal being necessary 
 and proper. An emergency arose and the tenant attempted to de- 
 scend by sliding down to the ground. She fell and was injured in 
 this attempt; but the fall was clearly occasioned by her own negli- 
 gence or was attributable to accident alone.^^® Quite a different case 
 was that where a building which was being raised by the landlord fell 
 on a clerk of the tenant who had gone under it for a purpose in con- 
 nection with his master's business. The accident was due to neglect 
 in not securely proping up the building. ^^^ Pending the doing of the 
 work of repair the tenant assumes the risk in using the part of the 
 premises which are undergoing repairs. So when a tenant thought 
 the rebuilding of a flight of steps had been completed and fell while 
 descending them in consequence of a loose board, the landlord was not 
 liable, as he had been guilty of no undue postponement of the work. 
 It was the tenant's duty while repairs were progressing to make sure 
 that the repairs were completed or that the descent of the stairs was 
 safe.^^^ 
 
 The intervening criminal act of a third person will relieve a land- 
 lord from liability for negligence in making repairs on the leased 
 premises. Thus where the servants of a landlord negligently left 
 windows open and a burglar stole the tenant's goods, the landlord was 
 not responsible for the loss. The repairs were on a part of the build- 
 ing occupied by the landlord and a partition had been taken away, 
 exposing the tenant's stock of goods, but there intervened as the di- 
 rect cause an independent criminal act. The landlord's negligence 
 may have put a temptation in the way of another person to commit 
 a wrongful act, by which the tenant was injured; and yet the land- 
 lord's negligence was in no legal sense a cause of the injury."^ 
 
 Negligent repairs by tenant do not render the landlord liable to 
 stranger. Where a lessee has undertaken to make the repairs on the 
 leased premises, his landlord is not responsible for his negligence in 
 making them, which causes damage to an adjoining owner. More- 
 over, by agreeing to allow the tenant a certain sum for such repairs, 
 the landlord does not make himself responsible for the prudence and 
 
 "» Alexander v. Rhodes, 104 Ga. "'Callahan v. Loughran, 102 Cal. 
 
 807, 30 S. E. 968. 476, 36 Pac. 835. 
 
 "' Lamparter v. Wallbaum, 45 111. "' Andrews v. Klnsel, 114 Ga. 390, 
 
 444. 40 S. E. 300.
 
 CSS LIABILITY IMPOSED BY LESSOR'S AGREEMENT TO REPAIR. [§ 597 
 
 care of the tenant, there being no evidence that the landlord made the 
 tenant his agent or servant in making the repairs. 
 
 160 
 
 § 597. Repairs effected through agent or independent contractor. 
 
 The well-settled rule of the law of agency is that where a person con- 
 tracts with another exercising an independent calling to do a work 
 for him according to the contractor's own methods and not subject 
 to his control or orders except as to the results to be obtained, the for- 
 mer is not liable for the wrongful acts of such contractor or his ser- 
 vants. This rule was applied by the Supreme Court of Missouri to a 
 case where a landlord employed an independent contractor to con- 
 struct a new privy on leased premises, rendered necessary by the 
 action of the city government in declaring the old privy a nuisance. 
 The accident occurred through the negligence of the contractors in 
 allowing the vault to remain without a barrier for an unreasonable 
 time; but the landlord was not liable.^^^ Again, in the same juris- 
 diction, it was held that the landlord was not liable for the negligence 
 of an independent contractor, employed to repair plumbing in tlie 
 leased premises, in leaving a trap door open, as a result of which the 
 tenant fell into the cellar and was severely injured.^^^ 
 
 On the other hand it has been held that the doctrine of freedom 
 from liability for the negligence of an independent contractor does 
 not apply where a landlord is making repairs or alterations on rented 
 premises.^*'^ The landlord's license to make the improvements in- 
 volved an undertaking on his part that the work, if done, should be 
 performed in such manner as to cause no unnecessary damage."" 
 In one case a new roof was put on a leased building at the request of 
 the tenants. Independent contractors, who were doing the job, tore 
 off the old roof during threatening weather and the goods of the ten- 
 ant were injured by rain. In holding the landlord liable the court 
 said: "By entering upon the performance of the work, though 
 through the medium of third parties, the landlord assumed and owed 
 the tenant a particular duty in the premises, namely, that reasonable 
 
 i«» Murray v. Richards, 1 Allen 97 Wis. 577, 72 N. W. 741, 73 N. W. 
 
 (Mass.) 414. 559; Wertheimer v. Saunders, 95 
 
 "'Wiese v. Remme, 140 Mo. 289, Wis. 573, 70 N. W. 824; Robbins v. 
 
 41 S. W. 797. To same effect see Atkins, 168 Mass. 45, 46 N. E. 425; 
 
 Meany v. Abbott, 6 Phila. (Pa.) 256. Lindsey v. Leighton, 150 Mass. 285, 
 
 "^ Burns v. McDonald, 57 Mo. App. 22 N. E. 901; Glickauf v. Maurer, 
 
 599. 75 111. 289. 
 
 '"" Jefferson v. Jameson &c. Co., 60 '" Jefferson v. Jameson &c. Co., 60 
 
 111. App. 587; Wilber v. Follansbee, 111. App. 587.
 
 If 
 
 § 598] RIGHTS AND LIABILITIES OF THE PARTIES. 684 
 
 care and caution should be used in conducting the work of taking off 
 the old roof and putting on the new one to avoid doing any injury to 
 the property of the tenant. This was an absolute duty imposed by 
 law, upon the particular facts, and was just as binding as if the de- 
 fendants had stipulated in the lease for its performance. The work to 
 be done was one attended with risk and danger to the property of the 
 tenant by reason of its exposure to the elements. That one upon 
 whom the law devolves a duty cannot shift it over upon another, so 
 as to exonerate himself from the consequences of its non-performance, 
 is very clear."^®^ 
 
 § 598. Non-performance of landlord's voluntary promise to repair. 
 
 As long as the landlord refrains from making voluntary repairs, no 
 liability attaches by reason of his promise to make them. This rule 
 has been applied in a case where a landlord failed to perform a vol- 
 untary promise to rebuild fences, and crops were damaged in conse- 
 quence.^®^ It has also been applied in a case where personal injuries 
 to an employe of the tenant were caused by a defective tank.^®'^ In ex- 
 plaining the decision in the latter case the court said : "The promise 
 was merely gratuitous, not made at the time of the lease, and was no 
 part of the original contract; it was without consideration and could 
 not be enforced." So a tenant himself could not recover for a personal 
 injury caused by a defect in a common stairway which existed at the 
 time of leasing, even though when notified of its existence the land- 
 lord promised to repair it but failed to do so.^®^ 
 
 The contributory negligence of a tenant in walking down an aban- 
 doned stairway, which he knew to be "rickety and rotten," would bar 
 his recovery for injuries caused by the breaking of the stairs, even 
 though the landlord had been notified of the defect and had promised 
 to repair it.^®" But a promise to repair on the part of the landlord 
 might operate to relieve the tenant from the charge of contributory 
 negligence if he had a right to assume the repairs had been made. 
 Such was the case where a tenant continued his daily use of a defec- 
 tive passageway in a tenement house, relying on the landlord's prom- 
 ise to repair it.^^° 
 
 ^"^ Wertheimer v. Saunders, 95 
 
 "« Bowling 
 
 V. Nuebling, 97 Wis. 
 
 "Wis. 573, 70 N. W. 824, per Pin- 
 
 350, 72 N. W. 
 
 871. 
 
 ney, J. 
 
 '"'' Toun V. 
 
 Armstrong, 75 Mich. 
 
 "'Proctor v. Keith, 12 B. Mon. 
 
 580, 42 N. W. 
 
 983. 
 
 (Ky.) 252. 
 
 ""Bold V. 
 
 O'Brien, 12 Daly (N. 
 
 '"Perez v. Rabaud, 76 Tex. 191, 
 
 Y.) 160. 
 
 
 13 S. W. 177. 
 
 
 
 ■*
 
 685 LIABILITY FOR NUISANCE. [§ 599 
 
 An essentially different doctrine was announced where a landlord 
 promised to repair the flooring of a stall which had been rented for 
 the use of a horse. The court held that the lessee of the stall had a 
 right to rely on the promise of the lessor that the flooring would be 
 repaired and to allow his horse to remain. For an accident to the 
 horse in consequence of the lessor's failure to perform his promise the 
 lessee was allowed to recover. It is worthy of notice, however, that 
 one judge dissented from this result and thought the tenant was with- 
 out remedy.^'^^ 
 
 III. Liability for Nuisance. 
 
 § 599. The occupier and not the owner is bound as between him- 
 self and the public to keep buildings and other structures abutting on 
 the highway and street in repair so that it may be safe for the use 
 of travellers passing along the same; and the occupier is prima facie 
 liable to parties injured through any defect in the same or want of 
 care in the use of such buildings.^'- By occupier in this statement is 
 meant, not merely the person who physically occupies the building, 
 but the person who occupies it as a tenant having the control of it, 
 and being, as to the public, under the duty of keeping it in repair.^" 
 The general rule is that the landlord is not liable to strangers for 
 injuries caused by a defect or want of repair in the premises, unless 
 he has agreed to make repairs, or the defect or want of repair existed 
 at the time of letting and was of such a character as to constitute a 
 nuisance or make the premises permanently dangerous.^^* The prin- 
 ciple underlying this general rule is that the landlord is liable for 
 injuries resulting from his own negligence and not for those result- 
 ing from that of his tenant.^ ^^ If the landlord leases premises to an- 
 other in good and safe condition, he is not liable for any injury which 
 may result by reason of the negligence of the tenant in using them."*' 
 
 1" Johnson v. Dixon, 1 Daly (N. v. Bickmore, L. R. 8 C. P. 401; Nel- 
 
 Y.) 178. son v. Liverpool &c. Co., L. R. 2 C. 
 
 "=Lee v. McLaughlin, 86 Me. 410, P. D. 311; Gandy v. Jubber, 5 B. 
 
 30 Atl. 65. & S. 78; Todd v. Flight, 9 C. B. (N. 
 
 ™ Cunningham v. Cambridge Sav. S.) 377, 99 E. C. L. 377; Deller v. 
 
 Bank, 138 Mass. 480. Hofferberth, 127 Ind. 414, 26 N. E. 
 
 "^Frischberg v. Hurler, 173 Mass. 889; Rider v. Clark, 132 Cal. 382, 64 
 
 22, 52 N. E. 1086; Leonard v. Storer, Pac. 564. 
 
 115 Mass. 86; Mellen v. Morrill, 126 ^"Gordon v. Peltzer, 56 Mo. App. 
 
 Mass. 545; Caldwell v. Slade, 156 599. 
 
 Mass. 84, 30 N. E. 87; Gwinnell v. ""Texas Loan Agency v. Flem- 
 
 Eamer, L. R. 10 C. P. 658; Pretty ing, 92 Tex. 458, 49 S. W. 1039.
 
 § 600] EIGHTS AND LIABILITIES OF THE PARTIES. 68G 
 
 Thus where a stranger was injured by a defect in the entrance to 
 leased premises which was no part of the sidewalk, the landlord was 
 not liable in the absence of a covenant to repair on his part and of any 
 proof that the defect existed at the time the premises were demised."^ 
 (1) "But where the owner leased premises which are a nuisance 
 or must in the nature of things become so by their use, then whether 
 in or out of possession, he is liable for injuries resulting from such 
 nuisance. (2) Where the premises are let for rent or profit, to be 
 used for purposes for which they are not fit or safe, and all this was 
 known or ought to have been known to the lessor, he is also liable for 
 injuries resulting from such use. (3) Where property at the time of 
 the demise is not a nuisance, and an injury happens by some act of 
 the tenant or while he has entire possession and control of the prem- 
 ises, the owner is not liable."^^® The liability of an owner for the 
 safety of premises depends on his right to assert actual control over 
 them and not upon the state of the technical legal title. The mere 
 fact that there was a formal and unasserted right outstanding would 
 not prevent the landlord's being chargeable to the same extent as if 
 there had been no flaw in his right of possession. ^'^^ 
 
 § 600. Injuries on abutting sidewalks. — When an accident hap- 
 pens to a passer-by through a defect in a sidewalk in front of leased 
 premises, the lessor is in general not liable in damages in the absence 
 of any covenant on his part to keep the premises in repair. If the 
 lease is silent as to who should make repairs, it is the duty of the 
 lessee to make them.^^° In a well considered case before the Supreme 
 Court of Michigan, the plaintiff brought an action to recover for 
 damages received from falling into a scuttle or coal hole in the side- 
 walk in front of the demised premises. The lessor was under no cove- 
 nant to repair and there was no evidence that the scuttle was not 
 properly constructed. The landowner was held not to be liable and 
 the reason for the decision stated to be because he was not in posses- 
 
 "^ Black V. Maitland, 11 N. Y. App. "" Learoyd v. Godfrey, 138 Mass. 
 
 Div. 188. 315. 
 
 ^"^Henson v. Beckwith, 20 R. I. ""Gott v. Gandy, 22 E. L. & Eq. 
 
 165, 37 Atl. 702,per Stiness, J.; Rose- 173; Leavitt v. Fletcher, 10 Allen 
 
 well V. Prior, 2 Salk. 460; Pretty v. (Mass.) 119, 121; Elliott v. Aiken, 
 
 Bickmore, L. R. 8 C. P. 401; Rex 45 N. H. 30, 36; Estep v. Estep, 23 
 
 V. Pedly, 1 A. & E. 822; Nelson v. Ind. 114; City of Lowell v. Spauld- 
 
 Liverpool &c. Co., L. R. 2 C. P. D. ing, 4 Cush. (Mass.) 277; Heintze 
 
 311. V. Bentley, 34 N. J. Eq. 562. 
 
 ii
 
 C87 LIABILITY FOR XUISANCE. [§ 600 
 
 sion.*^^ But if the scuttle had been out of repair when the lease was 
 made the owners would then have been held liable.^^^ Such was not 
 the case where the cover of the coal hole was in good repair and had 
 an 8 attached by which it could be fastened down. Landlords are not 
 obliged to see that the covers on coal holes in premises which are in 
 the occupation of a tenant are kept securely fastened. The cause of 
 the accident was rather the neglect of the tenant to fasten the cover 
 than the worn condition of the hole.^^^ jj^ many other cases of in- 
 juries through defective vaults or gratings on an abutting sidewalk it 
 has been held that the owner, being out of possession and not bound 
 to repair, was not liable in an action for injuries received in conse- 
 quence of the neglect to repair.^^* It is neither the sense nor the 
 policy of the common law to make a landowner an insurer of the 
 good repair of premises and liable for all injuries irrespective of neg- 
 ligence. 
 
 An attempt was once made to hold a landlord liable for injuries 
 caused by a coal hole on leased premises on the ground that such use 
 of the highway amounts to a nuisance, when constructed without 
 license or authority from the public. The coal hole in question had 
 been constructed prior to any legislation, state or municipal, relating 
 to vaults under sidewalks or to coal holes. But the court were of 
 opinion that the want of special license or authority to construct or 
 maintain the coal hole did not constitute it a nuisance.^^^ The abut- 
 ting owner may use the highway in front of his premises when not 
 restricted by positive enactment for loading and unloading goods, 
 for vaults and shutes, for shade trees, etc., and only on condition that 
 he does not unreasonably interfere with the safety of the highway 
 for public travel.^®^ In another case it was contended that until the 
 abutting owner had secured a legislative permit it was unlawful to 
 
 ^'1 Fisher v. Thirkell, 21 Mich. 1, "" Frischberg v. Hurter, 173 Mass. 
 
 4 Am. R. 422. To same effect see 22, 52 N. E. 1086. 
 
 Stewart v. Putnam, 127 Mass. 403; ^** Payne v. Rogers, 2 H. Bl. 350; 
 
 East End Imp. Co. v. Sipp, 14 Ky. Cheetham v. Hampson, 4 Term R. 
 
 L. R. 924; Gordon v. Peltzer, 56 Mo. 318; Bears v. Ambler, 9 Pa. St. 193; 
 
 App. 599; Adams v. Fletcher, 17 R. City of Lowell v. Spaulding, 4 Cush. 
 
 I. 137, 20 Atl. 263; Bears v. Ambler, (Mass.) 277; Owings v. Jones, 9 Md. 
 
 9 Pa. St. 193. A contrary result is 108. 
 
 reached in Georgia by virtue of a '*' Adams v. Fletcher, 17 R. I. 137, 
 
 statute. Collier v. Hyatt, 110 Ga. 20 Atl. 263. 
 
 317, 35 S. E. 271. "" Weller v. McCormick, 52 N. J. 
 
 "' Stoetzele v. Swearingen, 90 Mo. L. 470, 19 Atl. 1101. 
 App. 588; Dalay v. Savage, 145 
 Mass. 38, 12 N. E. 841.
 
 § 601] EIGHTS AXD LIABILITIES OF THE PARTIES. GS8 
 
 excavate under the sidewalk and place there a coal hole, even though 
 it may be done in a careful manner and left reasonably safe for pass- 
 ing pedestrians. Under the city charter as it existed at the time the 
 vault was constructed power was given the common council by ordi- 
 nance "to have exclusive control and power over the streets, sidewalks 
 and highways of the city . . . and to regulate the building of 
 vaults under sidewalks." The city had not exercised this power and 
 had not by ordinance provided any rules or regulations for building 
 vaults, and it was argued that the construction of the vault was with- 
 out lawful authority and its erection a nuisance. But the court 
 thought the better doctrine to be "that the want of a special license or 
 authority to construct and maintaiil the coal hole in question did not 
 constitute it a nuisance."^^^ 
 
 If in addition to the fact that an injury is caused by a defect in 
 the original construction of a building, the owner has general super- 
 vision over the leased premises, he will of course be liable. The ground 
 floor of a building which was leased for a store had an unprotected 
 area-way in front of it abutting on the sidewalk. It was held that 
 the landlord was liable to a traveler along the highway who was in- 
 jured by falling into the area-way.^^^ 
 
 §' 601. Injuries from falling articles. — Where a part of a leased 
 building becomes detached and falls on a passerby, the general rule is 
 that the landlord is not liable unless the defect causing the accident 
 existed at the time of the demise. After five years' occupation by a 
 tenant under a lease putting no obligation on the landlord to repair, 
 a cap-stone blew oS the demised premises and suit was brought 
 against the landlord for the damage caused thereby. The court de- 
 cided the landlord was not liable. The event showed that at the date 
 of the lease there was no immediate danger, as the accident did not 
 happen till more than three years later. Even if inspection would 
 have disclosed that the cap-stone would crumble in the course of five 
 years, it would be going too far to say that the covenant of the tenant 
 to repair did not reach it. It would be going still further to say that 
 the landlord must be taken to have contemplated the event, or that the 
 tenants having full control, and, as the plaintiff asserts, the right and 
 duty as towards the public to do what was necessary to make the place 
 
 ^"Gordon v. Peltzer, 56 Mo. App. see Stoetzele v. Swearingen, 90 Mo. 
 599, citing Adams v. Fletcher, 17 R. App. 588. 
 
 I. 137, 20 Atl. 263. To same effect ^^^ Larue v. Farren Hotel Co., 116 
 
 Mass. 67.
 
 689 LIABILITY FOR NUISANCE. [§ &02 
 
 safe, were not the only responsible parties.^®^ In another case the 
 plaintiff was injured by the fall of a window blind from a part of the 
 defendant's building, which had been let to a tenant. The judge found 
 as a fact that at the time of the accident the blind was in the ex- 
 clusive use and control of the tenant. The defendant was held not 
 liable in the absence of evidence to control the presumption of law 
 that it was the duty of the tenant to keep the premises safe for per- 
 sons passing or standing on the sidewalk below.^^" 
 
 An increased liability may be placed on the landlord by statute or 
 city ordinance. An ordinance in the city of San Francisco prohibited 
 the construction of awnings in front of buildings over the public 
 streets except upon the condition that the awning should be securely 
 placed and supported. Under this enactment the owner of a building 
 who erects such an awning, or suffers one to be erected by a tenant, as- 
 sumes an obligation to the public to keep it well secured, and is liable 
 to a party who suffers an injury from a falling of the awning, owing 
 to a defect in its supports, although at the time of the injury the 
 building was occupied by a tenant under a lease. Where one has se- 
 cured a privilege from the public on a condition, he cannot, after 
 availing himself of the privilege, avoid his obligation to perform the 
 condition by leasing the premises. ^^^ The tenant himself is not, how- 
 ever, in a position to take advantage of such an ordinance, after suf- 
 fering injury from a defective awning. Where it did not appear that 
 the defects existed at the time of the demise, and the lease contained 
 no covenants on the part of the landlord to repair, the tenant could not 
 recover, even though a city ordinance made it the duty of the land- 
 lord to make such repairs as were necessary for the safety of travel- 
 lers.i«2 
 
 § 602. Snow and ice. — The general doctrine seems to be that a 
 traveller along a highway who has been injured by snow and ice fall- 
 ing from a building abutting on the highway has a right of action to 
 recover for his injuries. Statutes provide the duites of towns in re- 
 gard to highways and make them liable if they fail to perform their 
 duty. But individuals are also liable for any injuries they may cause 
 
 ^"•Munroe v. Carlisle, 176 Mass. (Mass.) 17, 21; Clifford v. Atlantic 
 
 199, 57 N. E. 332. Cotton Mills, 146 Mass. 47, 15 N. E. 
 
 ""Szathmary v. Adams, 166 Mass. 84. 
 
 145, 44 N. E. 124; Kirby v. Boylston "^ Jessen v. Sweigert, 66 Cal. 182, 
 
 &c. Asso., 14 Gray (Mass.) 249; 4 Pac. 1188. 
 
 Milford v. Holbrook, 9 Allen "* Kahn v. Love, 3 Ore. 206. 
 
 Jones L. & T.— 44
 
 §' 602] EIGHTS AND LIABILITIES OF THE PAP.TIES. 690 
 
 by interfering with the safety and convenience of travellers. It can- 
 not be doubted that the proprietor of land adjoining a highway may 
 erect upon it a structure that will catch the falling rain and snow, 
 and retain it till it becomes a large mass, and allow it to freeze and 
 thaw. But the question here is, whether he may construct his roof in 
 such a manner that after the mass has accumulated it will, in cer- 
 tain states of the weather, be projected by its own weight upon the 
 sidewalk. If he may, then the risk is on travellers, and they must take 
 notice that, at certain seasons, the sidewalks are not safe and con- 
 venient for travel, but must be avoided.^®^ But this obligation depends 
 on possession and control more than on ownership, the limited extent 
 of the landlord's liability being shown by a case where a traveller 
 along a highway was injured by falling snow and ice from a building 
 which had been leased for a long term. By the terms of the lease the 
 lessee had bound himself to make all needful and necessary repairs, 
 both internal and external, on the demised premises, and so the owner 
 was not liable for the fall of ice, because the lessee was the occupant 
 of the entire estate, and, as between himself and the public, was bound 
 to keep the building in such a state of repair that the adjoining high- 
 ways should be safe for the use of travellers thereon. The control 
 of the tenant included the roof of the building as well as the interior, 
 and he might have cleared the roof by the exercise of due care.^'* 
 Furthermore, the leased house was not a nuisance in itself for which 
 an indictment would lie. As Judge Holmes aptly remarked: "If it 
 was, half the householders in Boston are indictable at the present mo- 
 ment." The house would become a nuisance at times by the mere 
 working of nature unless the tenant cleared the roof, but the tenant 
 could have prevented this by the use of reasonable care. "In such 
 cases it cannot matter whether the wrong on the part of the tenant is 
 an act which makes the premises a nuisance, or an omission which 
 allows them to become one. It is as much his duty to act in the latter 
 case as it is to abstain in the former. In either, as against the public, 
 the landlord, unless he has assumed the duty himself by covenant, 
 has a right to rely upon the tenant's managing the premises in his 
 occupation in such a way as to prevent their being a nuisance."^®^ 
 
 "^ Shipley v. Fifty Associates, 101 ''^ Clifford v. Atlantic Cotton Mills, 
 
 Mass. 251; Lee v. McLaughlin, 86 146 Mass. 47, 15 N. E. 84, per 
 
 Me. 410, 30 Atl. 65. Holmes, J.; Lee v. McLaughlin, 86 
 
 ^^^ Leonard v. Storer, 115 Mass. 86; Me. 410, 30 Atl. 65. 
 Lee v. McLaughlin, 86 Me. 410, 30 
 Atl. 65.
 
 691 LIABILITY FOR NUISANCE, [§ 603 
 
 In a case where a building was leased to many tenants, the lessors 
 having general supervision over the whole and entire control of the 
 outside doors and passageways, so far as was necessary for the making 
 of repairs, and being under obligation to make repairs, they were lia- 
 ble for injuries caused by falling snow and ice which had collected on 
 the roof. Under such circumstances it was the lessor's duty to keep 
 the roof free from snow and ice.^^^ So, a lease "of all chamber stories" 
 to one tenant, the ground floor and celler being let to another, was held 
 to convey no right to use or control the outside of the roof. These 
 leases did not relieve the lessor from his duty as owner to remove what- 
 ever substances might gather on the roof and become a nuisance to 
 travelers on the highway.^'*'^ 
 
 § 603. Landlord and tenant both responsible. — Where there has 
 been a nuisance of continued existence upon demised premises, the les- 
 sor and the lessee may both be liable for the damages resulting there- 
 from, — the lessee in the actual occupation of the premises, if he con- 
 tinues the nuisance after notice of its existence and request to abate 
 it ; and the lessor, if he at first created it and then demised the prem- 
 ises with the nuisance upon them, and at the time of the damage re- 
 sulting therefrom is receiving a benefit therefrom by way of rent or 
 otherwise. ^^* If the wrong causing the damage arises from the non- 
 feasance or the misfeasance of the lessor, the party sufi'ering damage 
 may sue him. Thus the owner of premises who lets them to a tenant 
 in a dangerous condition, and who permits them to remain so until, 
 by reason of want of reparation, they fall upon and injure the house 
 of an adjoining owner, is liable to an action.^^'' Virgin, J,, speaking 
 for the Maine Court, said: "It is settled law that where the owner 
 lets premises which are in a condition which is unsafe for the avowed 
 
 "°Kirby v. Boylston &c. Asso., 14 J. L. 457; Samuelson v. Cleveland 
 
 Gray (Mass.) 249. &c. Co., 49 Mich. 164, 73 N. W. 499; 
 
 '" Shipley v. Fifty Associates, 101 Buesching v. St. Louis &c. Co., 73 
 
 Mass. 251, s. c. 106 Mass. 194. Mo. 219, 39 Am. R. 503; Nugent v. 
 
 "' Swords V. Edgar, 59 N. Y. 28, Boston &c. R. Co., 80 Me. 62, 12 Atl. 
 
 17 Am. R. 295; Staple v. Spring, 10 797; Joyce v. Martin, 15 R. I. 558, 
 
 Mass. 72; Rosewell v. Prior, 2 Salk. 10 Atl. 620, Padberg v. Kennerly, 
 
 460,12 Mod. 635; Rich v. Basterfield, 16 Mo. App. 556; Griffith v. Lewis, 
 
 4 M. G. & S. 783, 56 E. C. L. 783; 17 Mo. App. 605; Fleischner v. Citi- 
 
 Irvine v. Wood, 51 N. Y. 224, 10 zens' Inv. Co., 25 Ore. 119, 35 Pac. 
 
 Am. R. 603; Pillsbury v. Moore, 44 174. 
 
 Me. 154, 69 Am. Dec. 91; McDonough ^"^ Todd v. Flight, 9 C, B. (N. S.) 
 
 v. Gilman, 3 Allen (Mass.") 264; Mor- 377, 99 E. C. L. 377. 
 ris Canal &c. Co. v. Ryerson, 27 N.
 
 § 604] RIGHTS AXD LIABILITIES OF THE PARTIES. G92 
 
 purpose for which they are let, or with a nuisance upon them w]ien 
 let, and receives rent therefor, he is liable whether in or out of pos- 
 session, for the injuries which result from their state of insecurity to 
 persons lawfully upon them; for by the letting for profit he author- 
 ized a continuance of the condition they were in when he let them, 
 and is, therefore, guilty of misfeasance."^*"' 
 
 If it be urged that an absolute deed would put an end to the former 
 owner's liability and that a lease is pro tanto as effectual as a deed, 
 inasmuch as for a space it prevents the lessor from entering on the 
 premises to make repairs, this leaves out of view that, by a lease re- 
 serving rent, the owner and lessor derives a profit from the continu- 
 ance of the nuisance. The putting it out of one's power to abate a 
 nuisance is as great a tort as not to abate it when it is in your power 
 to do it.^°^ So, where a lease contemplated the continuance of a 
 nuisance already in existence, the landlord's fault would be plain, and 
 there would be no doubt as to hi? liability.^''^ In such a case both 
 landlord and tenant would be liable.^*'^ 
 
 § 604. Necessity for request to abate nuisance. — The rule that any 
 person injured by a continuing nuisance can maintain an action 
 against the landowner who created it, or against a grantee who con- 
 tinues it, is subject to the provision that the grantee, if he merely 
 suffers it to remain, must first be asked to abate it.^"* One of the 
 earliest, if not the earliest case in which this rule was announced, is 
 PennruddocVs Case,^^^ where it was resolved that an action lies 
 against one who erects a nuisance without any request made to abate 
 it, but not against the feoffee unless he does not remove the nuisance 
 after request. On this point Chief Justice Hornblower said: "The 
 
 ='* Nugent v. Boston &c. R. Co., 80 ""^ Prentiss v. Wood, 132 Mass. 486; 
 
 Me. 62, 77, 12 Atl. 797. Plerson v. Glean, 14 N. J. L. 36, 25 
 
 ""^Rosewell v. Prior, 2 Salk. 460, Am. Dec. 497; Woodman v. Tufts, 
 
 12 Mod. 635; Swords v. Edgar, 59 9 N. H. 88; Plumer v. Harper, 3 N. 
 
 N. Y. 28, 17 Am. R. 295. H. 88, 15 Am. Dec. 333; Carleton v. 
 
 ="= Samuelson v. Cleveland Iron Redington, 21 N. H. 291; Johnson 
 
 Co., 49 Mich. 164, 13 N. W. 499; v. Lewis, 13 Conn. 303, 33 Am. Dec. 
 
 Smith r. Elliott, 9 Pa. St. 345; Hel- 405; Noyes v. Stillman, 24 Conn, 
 
 wig v. Jordan, 53 Ind. 21, 21 Am. 15; Pillsbury v. Moore, 44 Me. 154, 
 
 R. 189; Grady v. Wolsner, 46 Ala. 69 Am. Dec. 91; Ahern v. Steele, 115 
 
 381, 7 Am. R. 593. N. Y. 203, 22 N. E. 193; Hubbard 
 
 =^ Samuelson V. Cleveland &c. Co., v. Russell, 24 Barb. (N. Y.) 404; 
 
 49 Mich. 164, 13 N. W. 499; Irvine Wenzlick v. McCotter, 87 N. Y. 122, 
 
 V. Wood, 51 N. Y. 224, 10 Am. R. 41 Am. R. 358. 
 603. '"'° 5 Coke 100b.
 
 693 LIABILITY FOR XUISAXCE. [§' 604 
 
 law, as settled in Pennruddock's Case, has never, I believe, been seri- 
 ously questioned."-*'® The doctrine of the cases is that he who erects 
 a nuisance does not, by conveying the land to another, transfer the lia- 
 bility for the erection to the grantee; and the grantee is not liable 
 until, upon request, he refuses to remove the nuisance.^'^'^ Before an 
 action can be maintained against a person coming into possession of 
 property on which there is a nuisance, there must be a request upon 
 him to abate it.^"^ 
 
 This principle in regard to the liability for nuisances has a twofold 
 application to the law of landlord and tenant. One result is that a 
 lessee who takes possession of premises upon which there is an exist- 
 ing nuisance is not liable for its continuance except upon failure to 
 comply with a request to remove it.-"^ In those cases "in which the 
 nuisance exists at the time of the creation of the estate for years and 
 the lessee does nothing except maintain the demised premises in the 
 condition in which he received them, the person who suffers from the 
 nuisance must look to the landlord and not to the tenant for redress.^ ^•* 
 The second result is that he who creates a nuisance on his own prem- 
 ises cannot escape liability for its continuance by demising the prem- 
 ises whereon the nuisance is. Such liability will exist, although the 
 tenant stipulates to keep the premises in repair. ^^^ The lessee would 
 be liable for the continuance of a nuisance existing on the demised 
 premises at the time he acquired the estate, after he has been notified 
 of its existence and failed to abate it. Any notice is sufficient which 
 brings to the knowledge of the tenant the existence of the nuisance and 
 the desire of the complainant to have it removed.^^^ 
 
 Another result is that a grantee of an estate subject to an outstand- 
 ing lease is not liable for the continuance of a nuisance upon th6 
 granted premises. The position of the landlord in such a case is 
 stronger than that of an ordinary grantee. The lessee who occupied 
 the premises was under obligation to the public to see that they did not 
 become a nuisance, and ii was his duty to respond for any damage 
 
 ='«Pierson v. Glean, 14 N. J. L. (Mass.) 264; Beavers v. Trimmer, 
 
 36, 25 Am. Dec. 497. 25 N. J. L. 97. 
 
 """ Eastman v. Amoskeag Mfg. Co., "" Meyer v. Harris, 61 N. 'J. L. 83, 
 
 44 N. H. 143, 82 Am. Dec. 201. 38 Atl. 690. 
 
 =<« Bonner v. Welborn, 7 Ga. 296; =" Ingwersen v. Rankin, 47 N. J. 
 
 Western &c. R. Co. v. Cox, 93 Ga. L. 18; McDonoiigh v. Oilman, 3 Al- 
 
 561, 20 S. E. 68; Middlebrooks v. len (Mass.) 2CA; Rosewell v. Prior, 
 
 Mayne, 96 Ga. 449, 23 S. E. 398. 2 Salk. 460, 12 Mod. 635. 
 
 ="* McDonough v. Gilman, 3 Allen ='-' Central Railroad v. English, 73 
 
 Ga. 366.
 
 605] 
 
 RIGHTS AND LIABILITIES OF THE PARTIES. 
 
 694 
 
 sustained by any person from the nuisance. The owners of the re- 
 version had the right, in the absence of notice, to suppose that he would 
 discharge such duty and protect the public, and they were under no 
 obligation to see by watchful diligence that he performed such duty.^" 
 A mortgagee who purchased the mortgaged premises under a power of 
 sale and then allowed the mortgagor to continue in possession on pay- 
 ment of a certain rent does not stand in the position of a grantee sub- 
 ject to an outstanding lease. He would be liable for injuries caused 
 by a nuisance existing at the time of the sale.^^* Where the nuisance 
 causing the injury consists of a dangerous place which causes an acci- 
 dent to the person of a stranger, different considerations enter into 
 the case. A person in control of real estate, either as owner or lessee, 
 owes a duty to all persons whom he invites on his premises to have 
 them reasonably safe for use. He cannot escape from this obligation 
 by showing the dangerous condition existed at the time he received 
 the premises. So a grantee was held liable for an accident caused 
 by an open area-way abutting on a public sidewalk, though he had not 
 altered its construction.^^^ And a lessee was jointly liable with his 
 lessor for an injury caused by a defect in a public wharf.^^^ 
 
 § 605. A lessor is not liable for a nuisance created and maintained 
 on the premises by the tenant,^^' or for a nuisance which arises from 
 the tenant's neglect to make proper repairs while the property is in 
 
 «^Ahern v. Steele, 115 N. Y. 203, 
 22 N. E. 193 ; Gandy v. Jubber, 5 B. 
 & S. 78, s. c. 9 B. & S. 15; Lufkin 
 V. Zane, 157 Mass. 117, 31 N. E. 757; 
 McCarthy v. York Co. Sav. Bank, 74 
 Me. 315, 24 Atl. 900. Compare Ab- 
 bott v. Jackson, 84 Me. 449, 24 Atl. 
 900. It was said in Rex v. Pedly, 
 1 A. & E. 822, 827: "If a nuisance 
 be created and a man purchase the 
 premises with the nuisance upon 
 them, though there be a demise for 
 a term at the time of the purchase, 
 so that the purchaser has no oppor- 
 tunity of removing the nuisance, yet 
 by purchasing the reversion he 
 makes himself liable for the nui- 
 sance," But this seems inconsistent 
 with the opinion written by the 
 court of the Exchequer Chamber in 
 Gandy v. Jubber, 9 B. & S. 15, and 
 
 the statement has often been doubt- 
 ed or denied. 
 
 ^* Dalay v. Savage, 145 Mass. 38, 
 12 N. E. 841. 
 
 -"'^Condon v. Sprigg, 78 Md. 330, 
 28 Atl. 395, citing Coupland v. Hard- 
 ingham, 3 Camp. 398; Fisher v. 
 Prowse, 2 B. & S. 770. 
 
 ^^^ Joyce V. Martin, 15 R. I. 558, 
 10 Atl. 620. 
 
 ="'Vason V. City of Augusta, 38 
 Ga. 542; Grogan v. Broadway &c. 
 Co., 87 Mo. 321, 14 Nev. App. 588; 
 Lufkin V. Zane, 157 Mass. 117, 31 
 N. E. 757; Baker v. Allen, 66 Ark. 
 271, 50 S. W. 511; Fleichner v. Citi- 
 zens' Inv. Co., 25 Ore. 119, 35 Pac. 
 174; Wunder v. McLean, 134 Pa. St. 
 334, 19 Atl. 749; Riley v. Simpson, 
 83 Cal. 217, 23 Pac. 293.
 
 G95 LIABILITY FOR NUISAXCE. [§ 606 
 
 the control of the tenant.^^"^ Moreover, as between landlord and ten- 
 ant, the party presumptively responsible for a nuisance upon the leased 
 premises is the tenant.^ ^^ During the life of the lease, the lessors are 
 not owners, and inasmuch as the nuisance is neither created nor main- 
 tained by them, there is no principle of law upon which an action can 
 be maintained against them.^^*' If the premises are a nuisance, not 
 in themselves but in consequence of the use made of them by the ten- 
 ant, then the question is whether this use is authorized by the land- 
 lord. If the premises can be used by the tenant in the manner in- 
 tended by the landlord, either as shown by the construction of the 
 premises or by the terms of the lease, or by other evidence, without 
 becoming a nuisance, the landlord is not liable for the acts or neglect 
 of the tenant which creates the nuisance. If the tenant creates the 
 nuisance without authority of the landlord, and after he has entered 
 into occupation as tenant, the landlord is not liable.^-^ 
 
 Even in case of injury from a private nuisance, the landlord will 
 not be liable, where the tenant had exclusive possession of the prem- 
 ises, and where the nuisance was created by the tenant. ^-^ For a 
 nuisance to a dwelling on adjoining property arising from a cesspool 
 on the demised premises, the landlord will be responsible in damages 
 when the leakage was caused by its improper construction or by a de- 
 fective condition in existence at the time the tenant took possession. 
 But if the cesspool was properly constructed and was in repair when 
 the tenant took possession and leakage was due to subsequent neglect 
 of tenant to repair, the landlord will not be liable.^^^ 
 
 § 606. Moreover, a landlord is not liable for injuries resulting 
 from an improper use of the demised premises by the tenant. The 
 
 fall of an awning constructed solely as a protection against the sun 
 and rain was occasioned by the negligent and improper conduct of the 
 tenant in permitting it to be used as a standing place for a number of 
 people. It was held the landlord was not liable to a third person for an 
 
 ="' Pope V. Boyle, 98 Mo. 527, 11 S. "' Lufkin v. Zane, 157 Mass. 117, 
 
 W. 1010. 31 N. E. 757. 
 
 ^'^ Samuelson v. Cleveland &c. Co., ^= Freidenburg v. Jones, 63 Ga. 
 
 49 Mich. 164, 13 N. W. 499; Swords 612; Jones v. Freidenburg, 66 Ga. 
 
 v. Edgar, 59 N. Y. 28, 17 Am. R. 505; Edgar v. Walker, 106 Ga. 454, 
 
 295; Todd v. Flight, 9 C. B. (N. S.) 32 S. E. 582. Overruling Center v. 
 
 377, 99 E. C. L. 377. Davis, 39 Ga. 210. 
 
 '^ Grogan v. Broadway &c. Co., 87 "' Wunder v. McLean, 134 Pa. St. 
 
 Mo. 321, 14 Mo. App. 588. 334, 19 Atl. 749.
 
 607] 
 
 EIGHTS AXD LIABILITIES OF THE PARTIES. 
 
 696 
 
 injury caused by the fall."* Provided the premises were in a suit- 
 able state at the time the demise was made, the conditions must be 
 such that they become a nuisance from ordinary use in order to charge 
 the landlord with responsibility to a stranger.^^^ In one case a rail- 
 way company leased land to a party for the purpose of erecting an 
 elevator. After the elevator was built, grain became scattered near it 
 and attracted plaintiff's cow, which was run over, without negligence 
 on the part of defendant's engineer. The defendant was not liable 
 because the elevator was not a nuisance but a lawful structure, and the 
 landlord is not liable for the negligence of the tenant in the use of the 
 premises.226 rpj^g lessor of a dam is not liable for the mismanagement 
 of water gates by the lessee. The mere erection of the dam did no in- 
 jury and the lessor of the mill would not be liable for the mismanage- 
 ment of the water by the lessee."^ So, where the owner of land to 
 which a ferry was annexed as a franchise leased the land together with 
 the ferry, he was not responsible for any damage sustained by a third 
 person from the mismanagement of the ferry by the lessee.^^^ 
 
 §607. The landlord is liable for the damage caused when the 
 premises were let with the want of repair or the nuisance complained 
 of already existing.^^^ It has also been held that a landlord would 
 be liable for a nuisance caused by lack of repair where the non-repair 
 which produced the injury was of such an extensive and material 
 character that, having reference to the duration of the term, the tenant 
 cannot be presumed to have assumed to make it.-^^ But the general 
 doctrine seems to be that, to bring liability home to the owner, the 
 leased structure must be in such a condition that it would be likely 
 to become a nuisance, in the ordinary and reasonable use for the pur- 
 pose for which it was constructed and let, in the event of the land- 
 lord's failure to repair.-^^ The tenant is ordinarily bound to repair 
 
 i*^ Kalis V. Shattuck, 69 Cal. 593, 
 11 Pac. 346. 
 
 =^ Riley v. Simpson, 83 Cal. 217, 
 23 Pac. 293. 
 
 ^"Gilliland v. Chicago &c. R. Co., 
 19 Mo. App. 411. 
 
 ^' Sargent v. Stark, 12 N. H. 332. 
 
 2=s Norton v. Wiswall, 26 Barb. (N. 
 Y.) 618; Biggs v. Ferrell, 12 Ired. L. 
 (N. Car.) 1. 
 
 ^'Vason v. City of Augusta, 38 
 Ga. 542; Kalis v. Shattuck, 69 Cal. 
 593, 11 Pac. 346; City of Peoria v. 
 
 Simpson, 110 111. 294; Tomle v. 
 Hampton, 129 111. 379. 21 N. B. 800, 
 affirming 28 111. App. 142; Nelson v. 
 Liverpool &c. Co., L. R. 2 C. P. D. 
 311; Frischberg v. Hurter, 173 Mass. 
 22, 52 N. E. 1086; Lufkin v. Zane,, 
 157 Mass. 117, 31 N. E. 757; Dalay v. 
 Savage, 145 Mass. 38, 12 N. E. 841. 
 
 ^"Deutsch V. Abeles, 15 Mo. App. 
 398; Griffith v. Lewis, 17 Mo. App. 
 605. 
 
 "•Kalis v. Shattuck, 69 Cal. 593, 
 11 Pac. 346; Jessen v. Sweigert, 66
 
 697 LIABILITY FOR NUISANCE. [§ 608 
 
 the premises leased to him, except where landlord covenants to re- 
 pair and where the premises are let with a nuisance upon them. In 
 these latter cases a landlord would be liable to a stranger for injuries 
 caused by a defect in the premises.^^^ Thus, the landlord would be 
 liable for injuries caused by the fall of a leased wharf where the whole 
 structure was decayed and inseeure,^^^ but he would not be liable for 
 an accident caused by a loose board on a wharf. It was clearly the 
 duty of the lessee in the latter case to keep the driveway safe for use.^^* 
 This same principle seems to have been applied in a case where injury 
 to a third person occurred by reason of a broken fence on leased prem- 
 ises. The non-repair existed at the time of the demise but it was of 
 such a nature that the tenant was under obligation to make the re- 
 pairs. The court did not apply the general rule that a landlord 
 is liable for injury caused by defects existing at the time of the de- 
 mise. ^^^ 
 
 A landlord is liable to a third person for an injury caused by the 
 use of the premises by the tenant in the manner contemplated and in- 
 tended by the parties to the lease. Thus where a water-wheel on the 
 leased premises frightened the horse of a traveler along an adjoining 
 highway, the landlord was responsible for the injury.^^^ 
 
 The landlord would not, however, be liable when the structural de- 
 fect was due entirely to the tenant's negligence. A tenant fitted up 
 a room in a building in an improper manner and was injured in con- 
 sequence. The landlord was not liable, even though before the acci- 
 dent happened the tenant's term expired and he held on a month to 
 month tenure. ^^^ 
 
 § 608. Injuries on public wharves. — If property be of a public 
 character a landlord cannot with impunity rent it in an unsafe condi- 
 tion and, if he does, may be required to answer to those who are brought 
 upon it, at the instance of his lessee, for injuries they sustain. "A 
 wharf, furnishing the only mode of ingress and egress to a summer 
 resort where crowds are invited to come, if in an unsafe and dan- 
 gerous condition is certainly a nuisance of the worst character. It 
 will not do for the owner, knowing its condition or having, by the 
 
 Cal. 182, 4 Pac. 1188; Rector v. '^Abbott v. Jackson, 84 Me. 449, 
 
 Buckhart, 3 Hill (N. Y.) 193; Mul- 24 Atl. 900. 
 
 len V. St. John, 57 N. Y. 567. ="' Blood v. Spaulding, 57 Vt. 422. 
 
 "'' O'Connor v. Andrews, 81 Tex. ^^ House v. Metcalf, 27 Conn. 631. 
 
 28, 16 S. W. 628. "^ Glass v. Coleman, 14 Wash. 635, 
 
 ^^ Swords v. Edgar, 59 N. Y. 28, 45 Pac. 310. 
 § 608.
 
 § 609] RIGHTS AXD LIABILITIES OF THE PARTIES. 698 
 
 exercise of any reasonable care, the means of knowing it, to rent it 
 out and receive rent for it, but escape all liability when the crash 
 comes. He who solicits and invites the public to his resorts, must have 
 them in a reasonably safe condition, and not in a condition to risk 
 the lives and limbs of his visitors."^^^ It follows that the lessor is lia- 
 ble to strangers for injuries received on a defective wharf.^^** 
 
 This doctrine in regard to public wharves has, however, been treated 
 as an exception to the general rule of non-liability and explained on 
 the ground that a dock is regarded as a species of public highway, and 
 the owner who suffers a nuisance to be created on his dock is liable 
 upon the ground of nuisance.^*" And it seems to be true that the 
 owner of a wharf who invites travelers to use it as a passageway, is 
 under an obligation to keep it reasonably safe for such use.^*^ 
 
 § 609. Collapse of building. — The rule that a landlord is respon- 
 sible for injuries resulting from the continuance of a nuisance exist- 
 ing upon demised premises at the time of the demise has been applied 
 to the case of a building falling from its own weight. The building 
 in controversy was what is known as a "grout building," consisting 
 principally of mortar, and was old. It fell and injured the plaintiff, 
 who was rightfully upon the premises. It was held that an action 
 against the owner alone could be maintained and that the tenant was 
 not a necessary party, although there was an outstanding lease at the 
 time the accident occurred. The court say : "If, therefore, the build- 
 ing in controversy was originally negligently constructed of unsafe 
 and unsuitable materials, so that it was liable to fall of its own weight, 
 it constituted a nuisance ;" and the owner would be liable to the in- 
 jured person. The fact that the building stood a number of years 
 without falling would afford every slight evidence that it was prop- 
 erly constructed.^*^ 
 
 The extent of a landlord's liability for the safety of halls and gal- 
 leries used for public exhibitions is a matter of controversy. To 
 charge the landlord with responsibility for the insecure condition of a 
 house used for private purposes, it is necessary to show that he knew, 
 
 "« Albert v. State, 66 Md. 325, 7 =" Edwards v. New York &c. R. 
 
 Atl. 697. Co., 98 N. Y. 245. 
 
 ■''> Smith v. State, 92 Md. 518, 48 ==" Baltimore &c. R. Co. v. Rose, 65 
 
 Atl. 92; Albert v. State, 66 Md. 325, Md. 485, 4 Atl. 899. 
 
 7 Atl. 697; State v. Boyce, 73 Md. =«Waterhouse v. Schlitz Brew. 
 
 469, 21 Atl. 322; Swords v. Edgar, Co., 12 S. D. 397, 81 N. W. 725. 
 59 N. Y. 28; Joyce v. Martin, 15 R. I. 
 558, 10 Atl. 620.
 
 699 LIABILITY FOR NUISANCE. [§ 610 
 
 or had reason to know, that the structure was dangerously weak and 
 imperfect. This same rule of liability has been applied to the leas- 
 ing of a public halL^*^ This decision places the responsibility on the 
 tenant to see that the premises are not overloaded so as to render 
 them dangerous. The dissenting Judges contended that the rule was 
 different with reference to erections in which public exhibitions and 
 entertainments were designed to be given, and for admission to which 
 the lessors either directly or indirectly received compensation. In 
 such a case the lessor owed a duty to those who attend an entertain- 
 ment, requiring him to use all reasonable precautions to protect them 
 from danger. 
 
 That a stranger who is injured by the fall of a public grandstand 
 is entitled to recover from the owner who continues in possession 
 seems to have been settled by an English case. A grandstand at a 
 race course, constructed by a competent builder, fell and injured a 
 spectator who had entered by license of the proprietors. The defect 
 in construction was not discoverable by inspection, yet the court held 
 that the proprietors were liable. The same reasoning which was ap- 
 plicable to the case of a carrier of passengers is applicable to the case 
 of a person who provides places for spectators at races or other ex- 
 hibitions. Not only did the court think that when the reasons of 
 justice and convenience on the one side and on the other are weighed, 
 the balance inclines in favor of the plaintiff, but they were also of 
 opinion that the weight of authority is on the plaintiff's side.^" 
 
 § 610. Statutory nuisances. — An act in regard to the illegal sale 
 of liquor provided that the owner and all persons interested in the 
 building or premises in which such common nuisance has been kept 
 and maintained, as well as the keeper, may be made parties to injunc- 
 tion proceedings.^*^ On this act the question arose whether the owner 
 was liable to an injunction without being "adjudged" to have had 
 knowledge of the unlawful use of his premises, and whether he could 
 be properly joined as a party to the proceedings without an allegation 
 in the information of such knowledge. The court held the landlord 
 was not liable to an injunction without knowledge of the nuisance. 
 There was no reason to suppose that the legislature intended to de- 
 }iart from the rule of the common law which would not subject a 
 landlord to the consequences of his tenant's maintaining a nuisance 
 
 =" Edwards v. New York &c. R. "^Francis v. Cockrell, L. R. 5 Q. 
 Co., 98 N. Y. 245. B. 184, 501. 
 
 "■> Vt. Act of 1898, No. 90.
 
 §' 6111 EIGHTS AND LIABILITIES OF THE PARTIES. TOO 
 
 without the landlord being chargeable with notice of the existence of 
 the nuisance. While the adjudication does not convict the owner of 
 crime, it casts odium on him by reason of an unlawful act of another 
 person, committed without his knowledge or fault. The injunction, 
 if issued, would compel the landlord to become a guarantor that the 
 tenant shall not violate the law in the future.^*^ 
 
 It may be laid down as a general rule that a landlord cannot be 
 made responsible in a criminal proceeding for the act of his tenant in 
 creating a nuisance, even though he knew of it and did not dissent. 
 In criminal cases the commonwealth must prove that the defendant 
 himself did the act charged. There are, it is true, some exceptional 
 cases where it is sufficient to prove the act of an agent, but no case goes 
 so far as to convict a landlord for the act of his tenant, even though 
 he knew of it and did not dissent. ^^^ 
 
 There would seem to be no constitutional objection to a city ordi- 
 nance making a landlord civilly liable for the clean and proper con- 
 dition of leased premises after he had received due notice of the filthy 
 condition which caused them to be a nuisance. The tenant may be an 
 irresponsible party; the landlord can select his own tenants and im- 
 pose on them all reasonable restrictions; but a town or city has no 
 such authority. Nor can it be urged that, when the terms "owner" and 
 "occupant" are used in a city ordinance, the occupant is the owner 
 for the time being. If such were the construction, then one of the 
 words would be superfluous.^*^ It should be noted, however, that the 
 Missouri Court of Appeals interpreted a similar ordinance to put the 
 responsibility on the tenant alone, on the ground that it would be un- 
 constitutional if it applied to the landlord. The argument of the 
 court was that the landlord had surrendered entire possession and 
 control for the term, and had no more right of entry than any 
 stranger. The tenant could resist the landlord's invasion of the prem- 
 ises as a violation of law, and the ordinance requiring the landlord to 
 abate nuisances would command a violation of law and impose penal- 
 ties for a failure to violate the law.^*^ 
 
 § 611. What constitutes a reletting. — Since the liability of the 
 landlord in many cases depends on whether the nuisance causing the 
 injury existed at the time the demise was made, it becomes important 
 to determine what the date of the leasing is. No difficulty ordinarily 
 
 =«« State v. Massey, 72 Vt. 210, 47 =^ Bangor v. Rowe, 57 Me. 436. 
 
 Atl. 834. "° St. Louis v. Kaime, 2 Mo. App. 
 
 "^Commonwealth v. Switzer, 134 66. 
 Pa. St. 383, 19 Atl. 681.
 
 701 LIABILITY FOR NUISANCE. [§ 611 
 
 arises except in the case of a periodic tenancy, where the controversy 
 is whether there is a continuing demise or a new demise with each re- 
 curring period. The Court of Queen's Bench thought the letting 
 must be deemed to begin anew with every successive year of a year to 
 year tenancy.^^" But on appeal the Court of Exchequer Chamber 
 took the opposite view. The ground for this difference of opinion is 
 stated as follows: "We agree . . . that it is a sound principle 
 of law that the owner of property receiving rent should be liable for 
 a nuisance existing on his premises at the date of the demise ; but that 
 wherein we differ is, that a landlord from year to year, having the 
 power to give the ordinary notice to quit, and not giving it, is thereby 
 to be held as reletting the premises, and that such failing to give 
 notice is equivalent to a reletting."^^^ 
 
 The Missouri Court of Appeals approve and adopt the opinion of 
 the Court of Queen's Bench on this point, without noticing the subse- 
 quent action of the Court of Exchequer Chamber on appeal. Thomp- 
 son, J., says in his opinion : "That rule, it seems to us, is more con- 
 sonant with the respective duties of landlord and tenant in respect 
 to the rights of adjoining landowners, than a rule which, by a fiction, 
 enlarges the term of the tenant, holding merely at the will of the 
 landlord and liable to be ejected after a month's notice, to a term for 
 years and which makes him prima facie liable to third persons for 
 injuries resulting from a non-repair of the premises."^^^ When the 
 same question came before the Supreme Court of Kentucky it was held 
 that under a month to month tenancy, the landlord must be regarded 
 as leasing the premises at the beginning of every month.^^* 
 
 Wliere a lease contains a provision for extending the original term, 
 such a renewal would not be a reletting, and the landlord would not be 
 
 '"*' Gandy v. Jubber, 5 B. & S. 78. contrary to what we know to be the 
 
 ^" Gandy v. Jubber, 9 B. & S. 15. general practice in the cases of such 
 
 =^2 Griffith v. Lewis, 17 Mo. App. tenancies in this state. In the pres- 
 
 605, 613. The opinion continues with ent case a rule that would make a 
 
 the following argument: "Where tenant from month to month of a 
 
 the extent of the term which the tenement house liable to repair a 
 
 tenant has in the premises is but privy vault which had become di- 
 
 thirty days, the value of which may lapidated in consequence of years 
 
 be a few dollars only, a rule which of decay, which repair might, and 
 
 would make him liable to make any probably would, cost several times 
 
 repairs except those of a trifling or the amount of a month's rent, would 
 
 temporary character, such as the be highly absurd." 
 restoration of window panes broken '^^ East End Imp. Co. v. Sipp, 14 
 
 by him or the like, would not only Ky. L. R. 924. 
 be absurd and unjust, but would be
 
 §' 612] RIGHTS AXD LIABILITIES OF THE PARTIES. 702 
 
 liable for a nuisance existing on the premises at the beginning of the 
 renewal term. But where the lessor and lessee execute a new lease 
 which operates as a surrender of the old one, this is a new letting. 
 The landlord would be responsible for the condition of the premises 
 at the time the surrender took place.^^* 
 
 IV. Premises Occupied hy more than one Tenant. 
 
 § 612. Obligation to repair roof. — The general doctrine that in 
 the absence of express covenants a landlord is not bound to repair 
 applies to a case where tenant had leased the lower floor of a several 
 family house and the upper floor continued in the possession and 
 within the control of the landlord himself. There was no greater ob- 
 ligation on the landlord to repair than if the premises had been side 
 by side.^^^ According to the general doctrine a landlord is imder no 
 obligation to guarantee that leased premises are or will continue suit- 
 able or safe for the lessee's use ; and this rule extends to parts of the 
 premises not expressly demised to the tenant, such as a common roof 
 which is necessary to his protection.-^** It has been urged that the 
 landlord would be liable on the basis of the maxim sic utere tuo ut 
 alienum non laedas. This maxim restrains a man from using his own 
 property to the prejudice of his neighbor, but is not usually appli- 
 cable to a mere ommission to act, but rather to some affirmative act or 
 course of conduct which amounts to or results in an invasion of an- 
 other's rights. A man "is bound to protect his neighbor against in- 
 jury caused by his own structures," but in the absence of contract, he 
 is not bound to replace or repair structures which have fallen into 
 decay, merely for the purpose of protecting his neighbor's property, 
 simply because such structures previously afforded such protection."^^ 
 Thus, where tenant of a lower floor was injured by the neglect of the 
 landlord to repair a roof over the entire premises which were in his 
 possession, it was held that this maxim did not put the landlord under 
 obligation to put in repair his property to afford protection to his 
 
 ^=* Fleischuer v. Citizens' Inv. Co., Brewster v. De Premery, 33 CaL 
 
 25 Ore. 119, 35 Pac. 174. 341; Walker v. Gilbert, 2 Robt. (N. 
 
 "^^Krueger v. Ferrant, 29 Minn. Y.) 214. 
 
 385, 13 N. W. 158; Carstairs v. Tay- ==« Hanley v. Banks, 6 Okla. 79, 51 
 
 lor, L. R. 6 Exch. 217; Keates v. Pac. 664; Krueger v. Ferrant, 29 
 
 Cadogan, 10 C. B. 591, 70 E. C. L. Minn. 385, 13 N. W. 158. 
 
 591; Pomfret v. Ricroft, 1 Saund. -"Doupe v. Genin, 45 N. Y. 119; 
 
 321; Cbauntler v. Robinson, 4 Exch. Krueger v. Ferrant, 29 Minn. 385, 13 
 
 163; Doupe v. Genin, 45 N. Y. 119; N. W. 158.
 
 703 PREMISES OCCUPIED BY MORE THAX OXE TENANT. [§ 613 
 
 neighbor merely because it previously afforded such protection.^^* The 
 landlord is not liable either upon an implied covenant to repair or 
 upon the relation of the parties to each other on the leased premises. 
 Here the lessor had been merely passive; he had no affirmative duty 
 toward lessee. So long as a lessor abstains from all action he is within 
 the line of his duty.^^^ 
 
 Under similar circumstances, however, the Supreme Court of Maine 
 held the landlord liable. The landlord had the care and control of the 
 roof for the benefit of himself and his tenants. By implication, he 
 undertook so to exercise his control as to inflict no injury upon his 
 tenants. Such was the reasoning of the court in making the deci- 
 sion.^**^ Among the cases relied on for authority was one^^^ where 
 a landlord was held liable for injury caused to his tenant by a waste 
 pipe of an engine operated by the landlord. The Mississippi court 
 criticize the Maine case as follows: "The decision and its reasoning 
 are not satisfactory, and the vice of the opinion is that it confounds 
 the passivity of the landlord with affirmative action on his part amount- 
 ing to negligence. It overlooks the fundamental principle in all leases, 
 by which the lessor is made to 'hands off' during the continuance of 
 the lease. He may not be required to affirmatively aid the tenant in 
 repairs; and he may not affirmatively act inconsistently with his les- 
 see's right to possession and enjoyment, and so long as the lessor ab- 
 stains from all action, he is within the line of his duty. The Maine 
 case confounds negligence with non-intervention, and is unsound."-*'^ 
 The Illinois Court of Appeals reached the same conclusion as the 
 Maine court in a ease where damage was caused by the landlord's 
 failure to repair a leaky roof. The ground of decision was that as the 
 lessee had agreed to repair the part of the premises let to him, the 
 fair implication was that the lessor undertook to keep the remainder 
 of the building in repair.^®^ 
 
 § 613. Duty as to side-walls. — The responsibility of a landlord of 
 a tenement house to strangers for injuries received from a falling wall 
 which has remained within his control does not extend to the tenants. 
 
 ^* Krueger v. Ferrant, 29 Minn. ="' Priest v. Nichols, 116 Mass. 401. 
 
 385, 13 N. W. 158; Vai v. Weld, 17 ""= Jones v. Millsaps, 71 Miss. 10, 
 
 Mo. 232; Jones v. Millsaps, 71 Miss. 16, 14 So. 440, per Woods, J. 
 
 10, 14 So. 440. ^'' Trower v. Wehner, 75 111. App. 
 
 ^'^ Jones V. Millsaps, 71 Miss. 10, 655, citing Bissell v. Lloyd, 100 III. 
 
 14 So. 440. 214. 
 
 =«° Toole V. Beckett, 67 Me. 544, 24 
 Am. R. 54.
 
 § 613] RIGHTS AXD LIABILITIES OF THE PARTIES. 704 
 
 The landlord is not bound to repair and it is immaterial whether the 
 tenant be the lessee of the whole or of only a part of the premises. So, 
 where the main wall of a building fell through the negligence of the 
 landlord, he was not liable for injury caused thereby to a tenant of 
 certain rooms.^®* A court has applied the general rule of non-liability 
 to the case of a building falling because of excavations on an adjoin- 
 ing lot and crushing furniture belonging to a tenant, who occupied 
 only the basement story,^®^ and to the case of the swelling and bulging 
 out of the side walls of a storeroom whereby it became untenantable.^^* 
 The duty of a landlord to a tenant of a part of a building precludes 
 him from allowing any other part of the building from being put to 
 a use which will injure such tenant. Furthermore, on letting a part 
 of the premises, the landlord impliedly agrees that he has not author- 
 ized anything which will endanger the safety of the building. These 
 rules were applied in a case where a tenant of an upper story was 
 authorized to store heavy articles which the landlord knew the build- 
 ing would not support. The landlord was held liable for the injury 
 to a tenant of the lower floor upon the collapse of the building.^" 
 In a case with similar facts the court say in the course of an opinion 
 Teaching a similar result: "Had it (the building) fallen before it was 
 used at all, had the superstructure been so defective as to be unable 
 to sustain itself, — it would have been indictable as a common nuisance ; 
 and nobody doubts that the owner, at whose instance it was erected, 
 would have been answerable to individuals for the damage occasioned ; 
 but the wrong consisted, not in erecting walls incapable of standing 
 alone, but in building and renting the store for a specific purpose for 
 which it was unfit and unsafe. In itself it may not have been a com- 
 mon nuisance, but the maxim sic utere is not confined to common 
 nuisances. . . . Tempted by a large rent the landlord permitted 
 this building to be subjected to burdens too heavy for it to bear, 
 though lighter than the tenant had a right to impose, and herein is 
 the ground of his liability ."^«« 
 
 It has been held that a landlord was liable for an accident caused 
 to a tenant by a falling sign-board. The tenant rented only part of 
 the ground floor of a one-story building and the rest of the building, 
 
 ="Ward v. Fagin, 101 Mo. 669, 20 »^ The Brunswick-Balke-Collender 
 
 Am. St. 650, 10 L. R. A. 149. Co. v, Rees, 69 Wis. 442, 34 N. W. 
 
 =^ Sherwood v. Seaman, 2 Bosw. 732. 
 
 (N. Y.) 127. =^Godley v. Hagerty. 20 Pa. St. 
 
 =«« Kline v. McLain, 33 W. Va. 32, 387, 59 Am. Dec. 731, affirmed in 
 
 5 L. R. A. 400. Carson v. Godley, 26 Pa. St. Ill, 67 
 
 Am. Dec. 404.
 
 705 PREMISES OCCUPIED BY MORE THAN ONE TEXAXT. [§ 614 
 
 including the roof, was occupied by the landlord. The sign-board 
 belonged to the landlord and was used to advertise his business. The 
 landlord had, during the entire term, exercised control over and taken 
 charge of the outside of the building. He could not be exonerated 
 from responsibility to keep in reasonably safe and secure condition 
 that portion of the building over which he retained control. The jury 
 had found that the landlord was guilty of negligence in allowing the 
 fastenings of the sign-board to become insecure and that the tenant 
 was in the exercise of due carc^**** If the person injured had been a 
 traveller along the highway or a business visitor of the landlord, there 
 would have been no doubt as to the liability of the landlord. It would 
 have rested on the general doctrine as to the responsibility of an 
 owner of real estate. The result of the case is to place upon the land- 
 lord an equal burden of responsibility for the personal safety of his 
 tenants. 
 
 An awning extending over the sidewalk across the whole front of 
 a building is an entire structure. It could be built and maintained 
 for the advantage of shops in the building without being leased with 
 them. The responsibility for the good repair of such an awning re- 
 mains with the general owner, who is a partial occupant. His liability 
 for the awning is like that which he would be under for the condition 
 of the roof, the eaves, the chimneys, and other parts of the building 
 not appropriated to the exclusive use of any particular tenant, or to 
 all of them to the exclusion of the landlord.^'^" 
 
 § 614. Duty of landlord as to common passageways in tenement. 
 
 — The prevailing rule seems to be that a landlord who leases separate 
 portions of the same building to different tenants, and retains ex- 
 clusive control, for the purpose of repairs and construction, of the 
 porches, galleries, and stairways, used in common by all the tenants, 
 is under an implied obligation to use reasonable diligence to keep such 
 reserved parts in a safe condition for the use of a tenant occupy- 
 ing a part of the premises and for the members of his family. For 
 a failure to perform that duty the law attaches to him liability for 
 injury to such tenant or to a member of his family.^^^ But the gen- 
 
 ='° Payne v. Irvin, 144 111. 482, 33 Gleason v. Boehm, 58 N. J. L. 475, 
 
 N. E. 756, affirming 44 111. App. 105. 34 Atl. 886; Sawyer v. McGillicuddy, 
 
 ""Mllford v. Holbrook, 9 Allen 81 Me. 318, 17 Atl. 124, 3 L. R. A. 
 
 (Mass.) 17. 458; Lindsey v. Leighton, 150 Mass. 
 
 "' McGinley v. Alliance Trust Co., 285, 22 N. E. 901 ; Watkins v. Good- 
 
 168 Mo. 257, 66 S. W. 153; Schwandt all, 138 Mass. 533; Looney v. Mc- 
 
 V. Metzger &c. Co., 93 111. App. 365; Lean, 129 Mass. 33, 37 Am. R. 295; 
 Jones L. & T.— 45
 
 § 614] EIGHTS AND LIABILITIES OF THE PARTIES. 706 
 
 eral rule that, on the demise of a buikling, there is no implied cove- 
 nant of fitness, applies to the letting of several rooms in a tenement 
 house if they pass entirely out of the control of the landlord.^^^ Yet 
 the rule relieving the landlord, in the absence of special agreement, 
 from making ordinary repairs during the term of the lease, does not 
 release him from liability in case of injuries resulting from his failure 
 to keep in proper repair such portions of a tenement house as are not 
 leased to any particular tenant, but are retained in the control of the 
 landlord for the common use of several tenants.^^^ The basis of this 
 liability has been declared to be the landlord's invitation to the tenant 
 to use the common passageways in passing to and from the demised 
 rooms and the analogy is to a landowner who invites customers to his 
 place of business.^^* In respect to the common passageways of tene- 
 ment houses, a landlord owes the same duty to his tenant as to a ' 
 business visitor, according to this theory of the law.^''^ 
 
 By evidence showing an agreement by a landlord to repair a railing 
 or banister causing an injury after notice of its dangerous condition, 
 and that the stairway of which this railing or banister formed a part 
 was used in common by other tenants in the building, that the in- 
 jured person was a member of a tenant's family and, not knowing the 
 danger, was injured by reason of the defective and dangerous con- 
 dition of the railing, a case is made out to go to the jury.^^® But a 
 verdict finding that a person descending a stairway with which he was 
 not familiar, in the dark, and, having at hand means to insure his 
 safety, passes on with no precautions except the groping with his 
 hands and feeling with his feet, is exercising the care which a prudent 
 person would exercise, cannot be supported, as it is clearly contrary 
 to the evidence.^" Still, mere continued use of a common passage- 
 way after knowledge of its dangerous condition is not of itself con- 
 
 Donohue v. Kendall, 98 N. Y. 635, v. Allyn, 162 Mass. 270, 38 N. E. 
 
 affirming 18 Jones & S. 386; Hilsen- 497; Coupe v. Piatt, 172 Mass. 458, 
 
 beck V. Guhring, 131 N. Y. 674, 30 52 N. E. 526. 
 
 N. E. 580, 36 N. Y. St. 452; Palmer "'Sawyer v. McGillicuddy, 81 Me. 
 
 v. Bearing, 93 N. Y. 7; Peil v. Rein- 318, 17 Atl. 124. 
 
 hart, 127 N. Y. 381, 27 N. E. 1077, 12 ^'^ McCarthy v. Fagin, 42 Mo. App. 
 
 L. R. A. 843. 619; Gillion v. Reilly, 50 N. J. L. 26, 
 
 -''-McKeon v. Cutter, 156 Mass. 11 Atl. 481. 
 
 296, 31 N. E. 389. "" Schwandt v. Metzger &c. Co., 93 
 
 "^Gallagher v. Button, 73 Conn. 111. App. 365. 
 
 172, 46 Atl. 819; Peil v. Reinhart, =^ Gleason v. Boehm, 58 N. J. L. 
 
 127 N. Y. 381, 27 N. E. 1077; Looney 475, 34 Atl. 886; Hilsenbeck v. Guth- 
 
 V. McLean, 129 Mass. 33; Moynihan ring, 131 N. Y. 674, 30 N. E. 580.
 
 7or 
 
 PREMISES OGCrPIED BY MORE THAN ONE TENANT. 
 
 [§ 615 
 
 elusive evidence of a lack of due care on the part of the tenant.^^^ In 
 order to fix the responsibility upon the landlord, however, the defect 
 must have been the cause of the accident. Thus, where a horse had 
 been hitched to an outside stairway and, becoming frightened, pulled 
 it down, to the injury of the tenant's wife, the landlord was not liable. 
 The injury was caused by the horse and it was not the landlord's duty 
 to protect the tenant from intruders.^'^^ 
 
 § 615. There are other decisions in which the reasoning is directly 
 opposed to the principles just laid down.-^'^ The argument in these 
 contrary decisions is that the liability of the landlord cannot be in- 
 creased by the circumstance that he lets to more than one tenant. In 
 one case it was said : "It is difficult to perceive how the fact that the 
 landlord hired out apartments to separate tenants and that the com- 
 mon stairway was the common passageway for all, can exert a con- 
 trolling influence upon the question of the landlord's liability. The 
 landlord's duty is the same whether he demises to one or to many, so 
 far as concerns his liability to the tenant for personal injuries caused 
 by a failure to repair."^*^ 
 
 "'Looney v. McLean, 129 Mass. 
 33. 
 
 "'Piatt V. Farney, 16 111. App. 
 216. 
 
 ^s'Purcell V. English, 86 Ind. 34, 
 44 Am. R. 255; Cole v. McKey, 66 
 Wis. 500, 29 N. W. 279, 57 Am. R. 
 293; Humphery v. Wait, 22 U. C. 
 C. P. 580; Bowling v. Nuebling, 97 
 Wis. 350, 72 N. W. 871. 
 
 ="iPurcell V. English, 86 Ind. 34, 
 44 Am. R. 255. This subject is dis- 
 cussed in an exhaustive article 
 in the American Law Review, vol- 
 ume 6, page 614. The conclusion 
 reached is that the rule of caveat 
 emptors applies in regard to pas- 
 sageways in a tenement house and 
 that the tenant and those relying 
 on his right cannot hold the land- 
 lord responsible for defects in con- 
 struction or for lack of repair. The 
 basis of this conclusion is shown 
 in the following quotation: "It is 
 true that these portions are not 
 parcel of the demise, strictly speak- 
 
 ing, nor is the tenant charged with 
 any active duty with what as to 
 the public or the landlord he has no 
 exclusive — we might perhaps say 
 any — control over. He is not the 
 bailee thereof, and his character as 
 such in regard to the demised 
 premises will not assist us to settle 
 his rights here. But it is not to 
 be inferred from this that he is a 
 stranger thereto and that he can 
 hold the landlord to the same re- 
 sponsibility as a third person can. 
 It has indeed been attempted to de- 
 termirie his rights by the applica- 
 tion of the maxim sic utere tuo. 
 But it will be seen, as we suggested 
 at the beginning of this article, that 
 the fundamental question, rather, 
 is what is the extent of the owner- 
 ship than what is the mode of user 
 required. This question we have 
 in part answered by the cases just 
 reviewed, which settle that the gen- 
 eral title remains with the lessor. 
 But this ownership is not exclusive,
 
 §' 616] RIGHTS AXD LIABILITIES OF THE PARTIES. 708 
 
 § 616. To make a landlord liable for injuries caused by water 
 flowing from a closet on the tenant, it must be shown that the agen- 
 cies causing the damage were under the supervision of the landlord 
 or his agent and that there was neglect in the management thereof."- 
 "The liability of the landlord does not necessarily follow from the 
 fact that the building does not contain the latest and most improved 
 system of water pipes. He does not insure against the negligence of 
 his tenants."^^^ So it may be stated as a general rule that where the 
 water fixtures are properly constructed and the damage was caused 
 by the negligence of another tenant, the landlord is not liable; for 
 landlords are not responsible for the carelessness of their tenants in 
 the use of such fixtures.^^* But it seems a landlord might become lia- 
 ble for damage caused by leakage in a water-closet caused by im- 
 proper use of it by tenants when he knew of such improper use and 
 permitted it to continue. The court in holding the landlord liable 
 admit he would not be responsible if the tenant above wantonly threw 
 down water on the tenant below, but place the liability on the slender 
 ground that he knew of a previous leak.-^^ The court argue that the 
 landlord is responsible for a nuisance upon the premises but fail to 
 observe that the closet was not a nuisance in itself but only became 
 one by the improper conduct of the tenants. Water pipes running 
 through a room occupied by a tenant to a vacant room within the con- 
 trol of the landlord were allowed to freeze and injured the tenant's 
 goods, both landlord and tenant having access to the shut-off. The 
 
 for there can be no doubt that the tenant is merely licensed or privi- 
 tenant has a qualified interest in leged to use in connection with his 
 the nature of an easement in the own tenement, the principle of 
 same; and just in so far as this caveat emptor applies, and restricts 
 easement extends, a right, with a recovery for whatever he could 
 corresponding duty, of inspection have discovered or can remedy by 
 also extends, and, therefore, an as- due inquiry or inspection." 
 sumption of the risks from the =«= Mendel v. Fink, 8 111. App. 378. 
 original construction, and also =«^ McCarthy v. York Co. Sav. 
 from the temporary condition of the Bank, 74 Me. 315. 
 parts of the premises in which the =»* Haizlip v. Rosenberg, 63 Ark. 
 easement is enjoyed, so far as the 430, 39 S. W. 60; Kenny v. Barns, 
 same could be inspected." The con- 67 Mich. 336, 34 N. W. 587; Rosen- 
 elusion of the author is stated as field v. Newman, 59 Minn. 156, 60 
 follows: "We think, therefore, we N. W. 1085; White v. Montgomery, 
 are justified in the conclusion that 58 Ga. 204; Allen v. Smith, 76 Me. 
 even as to the condition and repair, 335; Greene v. Hague, 10 111. App. 
 as well as the construction of such 598; Strauss v. Hamersley, 13 N. Y. 
 portions of the premises as are not 816. 
 expressly demised, but which the =*= Marshall v. Cohen, 44 Ga. 489.
 
 709 PREMISES OCCUPIED BY MORE THAX OXE TEXAXT. [§ 617 
 
 lancllord was not liable for the injury because lie was under no duty 
 to shut off the water, although he had the right to do so for his own 
 protection if he chose.-®*^ A covenant in a lease of rooms in a build- 
 ing to save the lessor harmless from injury caused by the bursting of 
 water-pipes was followed by a provision that all merchandise and 
 furniture of the lessee should be at his sole risk and hazard, in case 
 of injury by fire or water. The language of the provision being broad, 
 was held by its natural import to throw upon the lessee the risk of loss 
 or damage to his property in the store, caused by the leakage or burst- 
 ing of water pipes in any part of the building. One of the clauses 
 in the lease would be superfluous if it were only intended to exempt 
 the lessor from liability for damage caused by bursting of water pipes 
 within the leased premises. ^^^ 
 
 § 617. To whom this duty extends. — The use of rooms in a tene- 
 ment for dwellings equally necessitates the use of the passage by 
 tradesmen in delivering goods, by persons having other business with 
 the occupant or by those who visit him for social reasons. With re- 
 spect, therefore, to all persons visiting such a tenant upon any law- 
 ful occasion, the duty of the landlord is similar to that which he owes 
 to the tenant.^^^ This duty extends to the servants and agents of the 
 tenant. Thus, in one case a person boarding with the tenant was in- 
 jured by a defect in a common platform used by the occupants of the 
 building for drying clothes. The landlord was held liable. Although 
 the boarder was working gratuitously, she was in a sense a servant or 
 agent of the tenant and she went upon the roof in the agent's right.-'*" 
 The landlord also owes the same duty to business visitors of the ten- 
 ant and is liable for injuries suffered by them. All persons having 
 occasion to visit any of the offices in a building on legitimate business 
 with any of the tenants therein have an implied invitation from the 
 owners of the property to use the common entrance and passage for 
 that purpose ; and the landlord owes a duty to all such persons which 
 carries with it an obligation to exercise reasonable care and prudence 
 to provide a safe and suitable entrance to such offices, and to have the 
 approaches thereto so constructed and maintained that visitors would 
 not be liable to step into dangerous pitfalls by reason of misleading 
 
 '-^"Buckley v. Cunningham, 103 L. R. (1893) 2 Q. B. 177; Hilsen- 
 
 Ala. 449, 15 So. 826. beck v. Guhring, 131 N. Y. 674, 30 
 
 -"Fera v. Child, 115 Mass. 32; N. E. 580. 
 
 Taylor v. Bailey, 74 111. 178. ^^^ Wilcox v. Zane, 167 Mass. 302, 
 
 ^'Gleason v. Boehm, 58 N. J. L. 45 N. E. 923; Ganley v. Hall, 168 
 
 475, 34 Atl. 886; Miller v. Hancock, Mass. 513, 47 N. E. 416.
 
 § 618] RIGHTS AXD LIABILITIES OF THE PARTIES. 710 
 
 doors and deceptive landings.-^" TVliere a tenant in an apartment 
 house called in an officer to arrest a person who was creating a breach 
 of the peace, the oflficer came to the house lawfully and could recover 
 from the landlord for an injury caused by a defect in a common pas- 
 sageway. It would not affect his right to recover if the arrest were 
 unlawful.^^^ This duty on the part of the landlord does not, however, 
 extend to mere social visitors. Such a visitor would be a mere 
 licensee, if there was no previous appointment to call, and no previous 
 notice of an intention to call had been given.-^- An exception to this 
 rule has been made where the guest comes upon the express invitation 
 of the tenant. In regard to this question, Knowlton, J., said : "The 
 contract (for the safe use of the common passageway) impliedly in- 
 cluded not only the tenant himself, but the members of his family, 
 and his servants and agents who might rightfully occupy and use 
 the tenement with him. It included boarders and lodgers, if, in a 
 proper use of the tenement, such persons might be received there by the 
 tenant. It included all persons, who in connection with the use of 
 the tenement by the tenant, might properly pass over the platform 
 under the express authority of the tenant and in his riglit. To all 
 such persons, by virtue of her contract with tlie tenant, the landlord 
 owed the same duty that she owed to the tenant personally, to keep 
 the platform reasonably safe."^®^ 
 
 § 618. Duty of landlord to strangers. — As regards strangers there 
 can be no doubt, on either principle or authority, that the liability of a 
 landlord for injuries caused by the negligent maintenance of the 
 portions of the building which are in his possession cannot be in any 
 way affected by the fact that other portions of it have been leased to 
 and are in possession of tenants. When a building consisting of a 
 number of different apartments is divided among several tenants, 
 each one of whom takes a distinct portion and none of whom rent 
 the entire building, each tenant is responsible only for so much as 
 his lease includes, leaving the landlord liable for every part of the 
 building not included in the actual holding of any one tenant.-^* 
 Thus a landlord who leases the several parts of his building to dif- 
 ferent tenants, and who retains control of the roof, will be liable for 
 
 =^Poren v. Rodick, 90 Me. 276. 38 47 N. E. 416. Compare McKenzie 
 
 Atl. 175; Readman v. Conway, 126 v. Cheetham, 83 Me. 543, 22 Atl. 469. 
 
 Mass. 374. =^' Coupe v. Piatt, 172 Mass. 458, 
 
 =^1 Learoyd v. Godfrey, 138 Mass, 52 N. E. 526. 
 
 315. ==^ O'Connor v. Andrews, 81 Tex. 
 
 »2 Ganley v. Hall, 168 Mass. 513, 28, 16 S. W. 628.
 
 711 PREMISES OCCUriED BY MORE THAX ONE TENANT. [§ 619 
 
 injuries resulting to persons passing on the street from ice and snow 
 sliding upon them therefrom.^^^ This same principle has been ap- 
 plied where injuries to third persons resulted from the fall of side 
 walls f^^ where an awning erected along the whole front of a building 
 for the benefit of shops fell and caused injuries ;^'''^ and where a 
 traveller along the highway in front of the premises was injured by a 
 defective coal hole in the sidewalk.^^^ The shops on the ground 
 floor of a building were rented to separate tenants and were con- 
 nected with the sidewalk by a wooden platform which was not sep- 
 arated into parts. A defect in the platform caused an injury to a 
 stranger and the landlord was held liable in the absence of any cove- 
 nant by the tenant to repair.^^** It has even been held that a covenant 
 by one of several tenants to save the lessor harmless from any claim 
 or damage arising from neglect in not removing snow and ice did 
 not release the landlord from liability. The injury occurred from the 
 collection of snow and ice on the sidewalk in front of the premises. 
 The effect of this covenant was not to give the lessee the sole oc- 
 cupancy of the sidewalk in front of the premises, so the general rule 
 of liability where parts of a building are let to different tenants would 
 apply,^"'' 
 
 §619. What constitutes a fulfilment of the landlord's duty. — 
 
 The obligation resting on the landlord is the same as that resting on 
 the general owner of real estate who holds out invitations or induce- 
 ments to other persons to use his property. The duty upon such an 
 owner is that reasonable care and skill have been exercised to render 
 the premises reasonably fit for the uses which he has invited others to 
 make of them.^°^ It is the landlord's duty to use due care to keep 
 the platforms and common passageways in a condition as good as 
 they were at the time of hiring, and to inform the tenant of any hid- 
 den defect which could not be discovered by reasonable diligence on 
 his part and of which the tenant for his proper protection ought to 
 be informed.3°2 But the landlord is not bound to change the mode of 
 
 ^"■^ Shipley v. Fifty Associates, 101 ^''^Readman v. Conway, 126 Mass. 
 
 Mass. 251, 3 Am. R. 346; Kirby v. 374. 
 
 Boylston &c. Asso., 14 Gray (Mass.) ^'X' Leydecker v. Brintnall, 158 
 
 249, 74 Am. Dec. 682. Mass. 292, 33 N. E. 399. 
 
 ^« O'Connor v. Andrews, 81 Tex. '" Gillvon v. Reilly, 50 N. J. L. 26, 
 
 28, 16 S. W. 628. 11 Atl. 481. 
 
 ^"'Milford V. Holbrook, 9 Allen ""^ Moynihan v. Allyn, 162 Mass. 
 
 (Mass.) 17, 85 Am. Dec. 735. 270, 38 N. E. 497; Quinn v. Perham, 
 
 =«» Jennings V. Van Schaick, 108 N. 151 Mass. 162, 23 N. E. 735; Woods 
 
 Y, 530, 15 N. E. 424, 11 Cent. R. 317, v. Naumkeag &c. Co., 134 Mass. 357.
 
 § 620] RIGHTS AXD LIABILITIES OF THE PARTIES. 712 
 
 construction to render the premises safe. Tlius where the floor of a 
 passage was composed of loose rough boards at the time of hiring and 
 no change for the worse had occurred, the landlord was not liable to 
 the tenant for an accident caused by this defect. The tenant took a 
 tenement with a poor approach, well knowing its condition and there- 
 fore cannot complain of an injury caused by it.^"^ No duty is imposed 
 upon the landlord in respect to the safe use of the means of passage 
 provided by him. If those means are such as the rule required to be 
 provided he has performed his duty. If a stairway is fit for use in 
 ascending and descending, the responsibility of safely using it is upon 
 the person using it. If to use it safely at night, a light is requisite, 
 the tenant must provide it and not the landlord. If upon the failure 
 of natural light artificial light is necessary to make the descent of a 
 stairway safe, it is erroneous to place the duty of providing such a light 
 upon the landlord.^"* So there is no obligation on the part of the 
 landlord to remove ice and snow from the steps of a tenement house. 
 That is the tenant's duty if he desired to use the steps. The ice 
 and snow are the proximate cause of an injury.^"^^ But these prin- 
 ciples were held not to apply to a stairway in an office building, con- 
 structed around a well which became unsafe by reason of darkness 
 before night had really fallen. The landlord had control of the halls 
 and starways and furnished the light for them. The court held that 
 the jury were justified in finding under such circumstances that the 
 landlord owed the duty of providing sufficient light to render the 
 passageway reasonably safe and that he had failed in that duty.^°® 
 
 §'620. The place where the accident occurs is not material pro- 
 vided it was on a common platform or passageway which the -land- 
 lord was bound to keep in a reasonably safe condition. Thus the 
 landlord was held to be answerable for a defective condition in a stair- 
 way intended to furnish access to the roof of a shed, used in common 
 by all the tenants for drying clothes.^"^ He was also responsible for 
 the safety of slats upon the roof of a tenement, used for a similar pur- 
 pose.^*'^ But it seems that the place where the accident happens must 
 have been intended by the landlord for the use to which it is being 
 
 ^^Quinn v. Perham, 151 Mass. ^"^ Marwedel v. Cook, 154 Mass. 
 
 162, 23 N. E. 735. 235, 28 N. E. 140. 
 
 "^ Gleason v. Boehm, 58 N. J. L. '"' Looney v. McLean, 129 Mass. 33, 
 
 475, 34 Atl. 886. 37 Am. R. 295; Wilcox v. Zane, 167 
 
 ^0= Woods V. Naumkeag &c. Co., 134 Mass. 302, 45 N. E. 923. 
 
 Mass. 357. =">' Alperin v. Earle, 55 Hun (N. 
 
 Y.) 211.
 
 713 PREMISES OCCUPIED BY MORE THAN OXE TENANT. [§ G21 
 
 put to make him liable. So, where tenants were simply given permis- 
 sion to dry clothes on the roof, the landlord was under no obligation 
 to keep it in repair.^"^ This same rule has been held in Illinois in a 
 case with facts almost identical with that cf Ivay v. Hedges.^'^^ The 
 Illinois court argues that "there was no express contract for the use 
 of the roof ; it was not included in the written lease, and there was at 
 most so far as the evidence discloses, merely a verbal permission to 
 the particular tenant to make such use of the roof. . . . If it could 
 be regarded as a part of the premises demised, . . . it is difficult to 
 perceive how, under the evidence as here presented, there could be any 
 obligation on the part of the landlord to keep the roof in repair."^^^ 
 
 A cellar staircase may be a common passageway for a defect in 
 which the usual responsibility of a landlord of a tenement house 
 would attach.^12 j^ would be for a jury to determine whether a plat- 
 form in front of leased shops and bordering on a highway were con- 
 structed and controlled by the owner of all the shops, for the common 
 use of the occupants of all the shops and of the public. If they found 
 this to be the case, the tenants would not be liable for defects in the 
 platform, but the responsibility therefore would remain on the land- 
 lord,^i=^ The landlord is not, however, bound to repair platforms and 
 passageways intended for the exclusive use of one tenant and not for 
 common use.^^* 
 
 § 621. Defective carpeting of passageways.— The landlord of a 
 building let in parcels to many tenants is bound to keep the carpet- 
 ings and matting in the common halls and stairways in proper repair. 
 Wear and tear on such furnishing is to be expected and worn places 
 and holes making the passage dangerous can easily be discovered on 
 inspection. So permitting a stairway carpet with holes in it to remain 
 on the stairs of a tenement house, with notice of its condition, ren- 
 ders the owners liable for injuries to a tenant from a fall caused by 
 catching her foot in one of the holes.'^^ A landlord was also held re- 
 sponsible for a fall received by reason of the unsafe condition of a 
 
 2»»Ivay v. Hedges, L. R. 9 Q. B. D. "* Donner v. Ogilvie, 49 Hun (N. 
 
 Y.) 229, 232; Flynn v. Hatton, 43 
 
 80. 
 
 ""Ivay v. Hedges, L. R. 9 Q. B. D. How. Pr. (N. Y.) 333, 346. 
 
 80. ''' Peil V. Reinhart, 127 N. Y. 381, 
 
 «^ Culver V. Kingsley, 78 111. App. 27 N. E. 1077, 12 L. R. A. 843; 
 
 540. Palmer v. Bearing, 93 N. Y. 7; Gill- 
 
 ^"Robbins v. Atkins, 168 Mass. 45, von v. Reilly, 50 N. J. L. 26, 11 Atl. 
 
 46 N. E. 425. 481, 10 Cent. R. 428; Henkel v. 
 
 '"Readman v. Conway, 126 Mass. Murr, 31 Hun (N. Y.) 28, 30. 
 374.
 
 §'§ 622, 623] EIGHTS AND LIABILITIES OF THE PARTIES. 71-4 
 
 mat in an entrance hall of an apartment house.^^® The question 
 whether the tenant has been guilty of contributory negligence is to 
 be submitted to the jury in view of all the circumstances of the case. 
 Where the landlord had promised to repair the defect, and the plain- 
 tifE thought he had done so, and the passageway was dimly lighted, so 
 that the defect was not visible, a finding by the jury that there was 
 no contributory negligence was not disturbed by the court.^^" Other 
 important inquiries are whether the defect was of such a nature as to 
 render the stairs not reasonably fit for the purpose of passage and 
 whether the landlord has failed to exercise reasonable care in the 
 matter.^^^ 
 
 § 622. Repairs interfering' with enjoyment. — A landlord may be 
 liable to tenants of one floor in an apartment house for injury done 
 them without regard to his negligence in making alterations and re- 
 pairs on another part. Such was the case where the quiet enjoyment 
 of the tenant was interfered with. The complaint did not count upon 
 the negligence of the defendant in making repairs, but was founded 
 on the theory that the plaintiff was the tenant of the defendant on the 
 two upper floors of the building; that defendant, as owner of the 
 building, conducted certain alterations and improvements on the sec- 
 ond floor by tearing down partitions and walls whereby plaintiff was 
 damaged, and her quiet enjoyment of the premises as a tenant was in- 
 terfered with. The landlord is bound to conduct his operations so 
 as not to dispossess or render uninhabitable the portion of the building 
 they have demised to others. If he fails of this duty, he is liable 
 to his tenants irrespective of the question of negligence. As against 
 third parties, he could take down the outer or inner walls at will, 
 subject only to liability for injury from negligence, but as against 
 his tenant he could not do the same thing, even in the most care- 
 ful manner, if the result destroyed the quiet enjoyment of such 
 tenant.^^^ 
 
 § 623. Liability of landlord for negligence of janitor. — The gen- 
 eral rule of law that an employer is responsible for injuries caused 
 by the negligence of his servants applies in the case of a janitor em- 
 ployed by a landlord. There is nothing in the relation of landlord 
 and tenant which would relieve the landlord from liability. Thus a 
 
 ^" Neyer v. Miller, 19 Jones & S. ^"^ Gillvon v. Reilly, 50 N. J. L. 26, 
 (N. Y.) 516. 11 Atl. 487, 10 Cent. R. 428. 
 
 ^'Palmer v. Bearing, 93 N. Y. 7. "« McDowell v. Hyman, 117 Cal. 
 
 67, 48 Pac. 984.
 
 715 PREMISES OCCUPIED BY MORE THAX OXE TENANT. [§ 624 
 
 sub-lessee could recover from the landlord for the misconduct of the 
 janitor of the building, who in the course of his employment let 
 water overflow the premises. ^^° A janitor is not, however, bound to 
 inquire into the condition of water pipes in parts of the building 
 which are under lease. He has a right to assume the continuance of 
 previous good repair. So a landlord was not liable wjiere his janitor 
 turned on water which flooded the premises throiigh a break in a ten- 
 ant's room.^2^ 
 
 § 624. A tenant of a part of a building is bound to exercise due 
 care in the use and control of his part of the premises to prevent in- 
 jury to other tenants in the building or to his employes or business 
 visitors. The ordinary doctrine of responsibility upon an occupier of 
 real estate is not altered by the circumstance that the premises occu- 
 pied consist of a portion of a building only and that there may be 
 certain duties and obligations on the part of the general owner. 
 Thus the occupant of an upper tenement would be liable for the negli- 
 gence of his servant in leaving a faucet open, which caused water to 
 overflow and flood the tenement below.^^^ Although such tenant is 
 not bound at his peril absolutely to prevent injury to others by the 
 escape of water,^^^ he is liable on the ground that he has been negli- 
 gent. Where the occupation and right to use the water fixtures are 
 exclusive, the party is responsible for their proper use and care; and 
 liability attaches on proof that negligence has occurred and damage 
 has ensued. ^^* 
 
 A case of a different nature arose where a servant of a tenant was 
 injured by a defect in a common passageway in a building occupied 
 by many tenants. The employer was held liable. It was contended in 
 behalf of the defendants that as they were tenants in the building, 
 with control over only a portion of it, there being other tenants 
 therein, the duty to keep the premises in safe repair was upon the 
 owner of the building and that the defendants could not be charged 
 with negligence for a failure in that respect. But the court replied 
 that the principles applicable to the case were those of master and 
 servant and the duty the master owed his servant to provide him a 
 safe place in which to perform his labors. The master cannot absolve 
 
 '^Pike v. Brittan, 71 Cal. 159, 11 '='' Losee v. Buchanan, 51 N. Y. 
 
 Pac. 890. 476, 486; Swett v. Cutts, 50 N. H. 
 
 '^Greene v. Hague, 10 111. App. 439; Brown v. Collins, 53 N. H. 442. 
 
 598. 5=^ Moore v. Goedel, 34 N. Y. 527, 
 
 '^^Simonton v. Loring, 68 Me. 164, 532; Slmonton v. Loring, 68 Me. 164, 
 
 28 Am. R. 29. 28 Am. R. 29.
 
 § 625] EIGHTS AXD LIABILITIES OF THE PARTIES. 716 
 
 himself from responsibility in his behalf by showing that the prem- 
 ises furnished by him were rented from a third person and were 
 jointly occupied by him with other tenants. It was further contended 
 that the full extent of the defendant's duty was to warn their em- 
 ploye of the danger. The court did not assent to this, but disposed of 
 the case on the ground that even if a warning would have been suf- 
 ficient, there had been none in the present case.^^^ 
 
 V. ResponsihiUty for Waste. 
 
 § 625. Waste may be defined to be any act or omission of duty 
 by a tenant of land which does a lasting injury to the freehold, 
 
 tends to the permanent loss of the owner of the fee, or to destroy 
 or lessen the value of an inheritance, or to destroy the identity of the 
 property, or impair the evidence of title.^^® It is lasting damage to 
 the inheritance caused by the destruction by a tenant for life or years 
 of such things on the land as are not included in its temporary 
 profits.^^^ Permissive waste, as the name implies, consists in the mere 
 neglect or omission to do what will prevent injury, as to suffer a house 
 to go to decay for lack of repair. Voluntary waste, on the other 
 hand, consists in the commission of some destructive act, as pulling 
 down a house or cutting down timber.^-^ "At common law, a writ of 
 waste lay against a tenant in dower, tenant by the curtesy and 
 guardian in chivalry, but not against lessees for life or years.^^-^ The 
 reason for this diversity was that the estates and interests of the 
 former were created by law, and therefore the law gave a remedy 
 against them, but the latter came in by the act of the owner, who might 
 have provided in his demise against the doing of waste by his lessee, 
 and if he did not it was his own negligence and default.^ ^^ This doc- 
 trine was found extremely inconvenient, as tenants took advantage 
 of the ignorance of their landlords and committed acts of waste with 
 impunity. To remedy this inconvenience the statute of Marlbridge^^^ 
 
 '== Dieters V. St. Paul Gaslight Co., Marsh. (Ky.) 196; Jackson v. 
 
 86 Minn. 474, 91 N. W. 15. Brownson, 7 Johns. (N. Y.) 227. 
 
 ^^'Bandlow v. Thieme, 53 Wis. 57, ==* Consolidated Coal Co. v. Savitz, 
 
 9 N. W. 920; Melms v. Pabst Brew- 57 111. App. 659; Bouvier's Law 
 
 ing Co., 104 Wis. 7, 79 N. W. 738. Diet., Art. Waste; White v. Wagner, 
 
 '=^Proffitt V. Henderson, 29 Mo. 4 H. & J. (Md.) 373, 391. 
 
 325; Childs v. Kansas City &c. R. ==='2 Inst. 299, 305; Co. Lit. 54. 
 
 Co. (Mo.), 17 S. W. 954; Sherrill ^="2 Inst. 299; Doct. & Stu., ch. 1, 
 
 V. Connor, 107 N. Car. 630, 12 S. E. p. 102. 
 
 588; London v. Warfield, 5 J. J. "'^52 Hen. Ill, ch. 23.
 
 717 EESPOXSIBILITY FOR WASTE. [§ G28 
 
 was passed. But, as the recompense given by this statute was fre- 
 quently inadequate to the loss sustained, the statute of Gloucester^^^ 
 increased the punishment by enacting that the place wasted should 
 be recovered together with treble damages."^^^ At common law the 
 only parties liable for waste were tenants of legal estates, i. e., 
 estates which were created by act of law as distinguished from those 
 created by act of the parties. Prior to the statutes of Marlbridge 
 and Gloucester, when a limited estate was created by deed, the par- 
 ticular tenant was not liable for waste unless it was expressly so stip- 
 ulated.^^* Since those statutes the better view seems to be that ten- 
 ants for life and for years under deeds or grants are liable for per- 
 missive as well as voluntary waste. In the earlier English reports 
 instances are frequent in which lessees for life or for years have been 
 held liable for permissive waste and their liability is grounded on the 
 statutes which subjected them to the action of waste.^^^ More recent 
 cases^^^ throw some doubt on this conclusion, but they are not re- 
 garded as settling the law against the older eases, and the opinions of 
 Coke and Blackstone.^^'^ In the United States, unless exempted by the 
 terms of his lease, a tenant for life or for years is responsible for 
 waste done or permitted on the demised premises.^^^ 
 
 § 626. With respect to the mode of procedure by which a tenant 
 was made to account for the waste committed by him, the writ of 
 waste authorized by the statute fell into disuse in England and was 
 finally abolished by statute,^^'* being superceded by an action on the 
 case in the nature of waste.^*** The form of writs in this action are 
 found in the most approved books of precedents.^*^ It has been de- 
 
 =='6 Edw. I, ch. 5. L. 284; Davies v. Davies, L. R. 38 
 
 ^^ Moore v. Townshend, 33 N. J. Ch. D. 499, 58 L. T. 514, 57 L. J. 
 
 L. 284, per Depue, J.; Sackett v. Ch. 1093. 
 
 Sackett, 8 Pick. (Mass.) 309, 313; ^^' White v. Wagner, 4 H. & J. 
 
 Stetson v. Day, 51 Me. 434; Lothrop (Md.) 373; Palmer v. Young, 108 
 
 v. Thayer, 138 Mass. 466; Chase v. 111. App. 252; Consolidated Coal Co. 
 
 Hazelton, 7 N. H. 171. v. Savitz, 57 111. App. 659; Stevens 
 
 '^ Palmer v. Young, 108 111. App. v. Rose, 69 Mich. 259, 37 N. W. 205. 
 
 252. ^"3 and 4 William IV, ch. 27. 
 
 "'=' Griffith's Case, Moore 69; Darcy ^«' Greene v. Cole, 3 Saund. 252, 
 
 V. Askwith, Hobart 234; Glover v. note 7; Jefferson v. Jefferson, 3 
 
 Pipe, Owen 92; 2 Bl. Comm. 283; Lev. 131; West v. Treude, Cro. Car. 
 
 Co. Litt. 52a, 53b. 187; White v. Wagner, 4 H. & J. 
 
 =^« Gibson v. Wells, 4 B. & P. 290; (Md.) 373. 
 
 Heme v. Bembow, 4 Taunt. 764; ="^3 Chitt. Plead. 434; 8 Went. 
 
 Torriano v. Young, 6 C. & P. 8. Plead. 588; Randall v. Cleaveland, 
 
 ^ Moore v. Townshend, 33 N. J. 6 Conn. 328.
 
 § 626] EIGHTS AND LIABILITIES OF THE PARTIES. 718 
 
 cided that case in the nature of waste will lie, although the tenant has 
 specially covenanted not to do waste,^*^ and that this action may be 
 maintained for permissive as well as for voluntary waste.^*^ Case in 
 the nature of waste is a different action from a writ of waste, being a 
 common-law remedy, attended with the imposition of ordinary dam- 
 ages only, and is not possessory in its character. It does not require 
 that the defendant should be charged as lessee or assignee, or that the 
 writ should conclude by stating the waste to have been to the disin- 
 heriting of the plaintiff, and there is nothing in its character necessa- 
 rily to prevent its lying against a stranger. The remedy in this action 
 is co-extensive with the liability to injury, and the reversioner has a 
 right to elect against whom to proceed.^^* In this country, although 
 adopted in some of the states, the action of waste has been but little 
 used, having been, in practice, virtually superseded by the action on 
 the case in the nature of waste for the recovery of damages merely, or 
 by bill in equity, praying an injunction against the commission of 
 waste.^*^ Though trespass quare clausum may be maintained by the 
 owner for an injury to the freehold, when it is in the occupation of a 
 tenant at will,^*'' this doctrine is not to be extended so as to apply to 
 a remainderman who is not entitled to possession. It has been held 
 that such an action will not lie by the reversioner for waste commit- 
 ted by a person acting under authority from a tenant for life.^*^ 
 But the reversioner or remainderman is not without remedy, when the 
 injury is of a permanent nature affecting the inheritance, for an ac- 
 
 ^"Kinlyside v. Thornton, 2 W. Bl. waste, but not as to the penalty of 
 
 1111. forfeiture. Conditions were such 
 
 ^ White v. "Wagner, 4 H. & J. that the stringent rules of the Eng- 
 
 (Md.) 373; Greene v. Cole, 3 Saund. lish law relative to waste were not 
 
 252, note 7; Pomfret v. Ricroft, 1 applicable. So damages could be 
 
 Saund. 321. recovered but forfeitures could not 
 
 =«Chase V. Hazelton, 7 N. H. 171; be enforced. Woodward v. Gates, 
 
 Mason v. Stiles, 21 Mo. 374; Davis 38 Ga. 205. I7i Delaware a tenant 
 
 V. Smith, 15 Mo. 467; Randall v. was liable to indictment under the 
 
 Cleaveland, 6 Conn. 328; Jackson v. act of 1831 for cutting timber, if 
 
 Pesked, 1 M. & S. 234; Attersoll v. the landlord's consent be disproved. 
 
 Stevens, 1 Taunt. 183. State v. Jackson, 2 Harr. (Del.) 
 
 =»= Randall v. Cleaveland, 6 Conn. 542. 
 
 328; Stevens v. Rose, 69 Mich. 259, ^^''Bartlett v. Perkins, 13 Me. 87; 
 
 37 N. W. 205; White v. Wagner, 4 Davis v. Nash, 32 Me. 411; Kimball 
 
 H. & J. (Md.) 373; Chase v. Hazel- v. Sumner, 62 Me. 305; Starr v. 
 
 ton, 7 N. H. 171; Stetson v. Day, 51 Jackson, 11 Mass. 519. 
 
 Me. 434. In Georgia the statute of ^' Shattuck v. Gragg, 23 Pick. 
 
 Gloucester was in force as far as it (Mass.) 88. 
 made a tenant in dower liable in
 
 719 EESPOXSIBILITY FOE WASTE. [§ 627 
 
 tion would lie against the tenant, either on the case or for waste, or an 
 action on the ease would lie against a stranger.^*^ 
 
 § 627. At common law and under the early English statutes a 
 tenant at will was punishahle for voluntary waste, but not for per- 
 missive waste.^*** The rule has been declared in general terms that 
 a tenant, no matter what the duration of his term, is liable to his 
 landlord for voluntary or commissive waste.^^° Tenants in dower, by 
 the curtesy, for life or lives, and for years, were included in the stat- 
 ute of Gloucester. Tenants at will were always considered as omitted 
 from the statute of Marlbridge, as well as from the statute of Glou- 
 cester, and therefore continued not to be punishable for mere per- 
 missive waste, and punishable for voluntary waste by action of tres- 
 pass as at common law. The reason of this exemption of tenants at 
 will from liability for permissive waste was the uncertain nature of 
 their tenure, which would make it a hardship to compel them to go 
 to any expense for repairs. Their exemption from the highly remedial 
 process of waste provided by the statute of Gloucester is attributable 
 to the fact that the owner of the inheritance might at any time, by 
 entry, determine the estate of the tenant and thus protect the inherit- 
 ance from spoil or destruction.^^^ If a tenant at will, holding from 
 year to year, commit voluntary waste, he forfeits all right of notice 
 to quit, as he thereby determines this estate f^"^ for waste by a tenant 
 at will has the effect of ending the tenancy and making the tenant a 
 trespasser.^^^ The possession of a tenant at will, who has committed 
 voluntary waste, may be considered the actual possession of the land-- 
 lord, who may thereafter maintain trespass quare clausum against liis 
 former tenant at will.^^* Since a tenant at will or by sufferance is 
 
 ^ Lawry v. Lawry, 88 Me. 482, 34 ^^ Boefer v. Sheridan, 42 Mo. App. 
 
 Atl. 273; Stetson v. Day, 51 Me. 226. 
 
 434; Shattuck v. Gragg, 23 Pick. '"Moore v. Townshend, 33 N. J. 
 
 (Mass.) 88. L. 284. 
 
 ^'Torriano v. Young, 6 C. & P. 8, '" Perry v. Carr, 44 N. H. 118; 
 
 25 E. C. L. 295; Countess of Salop Phillips v. Covert, 7 Johns. (N. 
 
 V. Crompton, Cro. Eliz. 777, 784; Y.) 1. 
 
 Countess of Shrewsbury's Case, 5 '°' Pettingill v. Evans, 5 N. H. 54. 
 
 Coke 14; Harnett v. Maitland, 16 '=^ Perry v. Carr, 44 N. H. 118; 
 
 M. & W. 258; Moore v. Townshend, Ripley v. Yale, 16 Vt. 257, 260; 
 
 33 N. J. L. 284; Coale v. Hannibal Wickham v. Freeman, 12 Johns. (N. 
 
 &c. R. Co., 60 Mo. 227; Daniels v. Y.) 183; Phillips v. Covert, 7 Johns. 
 
 Pond, 21 Pick. (Mass.) 367; Lo- (N. Y.) 1; French v. Fuller, 23 Pick, 
 
 throp V. Thayer, 138 Mass. 466; (Mass.) 104; Starr v. Jackson, 11 
 
 Boefer v. Sheridan, 42 Mo. App. Mass. 519; Lienow v. Ritchie, 8 
 
 226. Pick. (Mass.) 235; Daniels v.
 
 §' 628] RIGHTS AND LIABILITIES OF THE PARTIES. 720 
 
 not liable to his landlord for permissive waste, as where the demised 
 premises are damaged by the acts of a stranger, he will therefore have 
 no action against the stranger who causes the injury.^^^ But tenants 
 who were bound to answer to their landlord in the full value of waste 
 committed have been held to be entitled to recover a like amount 
 against the stranger by whose act the waste was committed.^^® 
 
 In Maine it has been held that an action of trespass on the case is 
 maintainable by the owners of the fee against a tenant at will for acts 
 prejudicial to the inheritance.^^'' But the authority on which this de- 
 cision is rested merely holds that case is the proper remedy of a re- 
 versioner out of possession to bring against a stranger who does an 
 injury to the inheritance.^^^ 
 
 The burning of a building through the negligent keeping of a fire 
 by a tenant is generally regarded as permissive waste.^^^ So if land- 
 lords would protect themselves from the mere negligence of their ten- 
 ants, they should take a written lease with proper covenants. The 
 reasonable rule is that a tenant at will is not liable to his landlord for 
 the mere negligence of himself or his servants in kindling or guard- 
 ing fires in stoves or chimneys for the purpose of heating the premises, 
 but that he is liable for willful burning and also for such gross negli- 
 gence" as amounts to reckless conduct. ^**° 
 
 A tenant in possession under a lease giving lessee an option to pur- 
 chase, which has not been exercised within the required time, is liable 
 for waste committed on the premises during his possession.^°^ 
 
 § 628. Independent of an express agreement on the part of a 
 lessee, the law imposes on him an obligation to treat the premises in 
 such a way that no substantial injury shall be done to the property 
 
 Pond, 21 Pick. (Mass.) 367; Lo- 287; Gibbons on Dilapidations (2d 
 
 throp v. Thayer, 138 Mass. 466, 473; ed.) 108, 128; Comyn's Ld. & Ten. 
 
 Chalmers v. Smith, 152 Mass. 561, 171. 
 
 26 N. E. 95. '^'Lothrop v. Thayer, 138 Mass. 
 
 ^'^^Coale v. Hannibal &c. R. Co., 466, 476. See also. Read v. Penn- 
 
 60 Mo. 227. sylvania R. Co., 44 N. J. L. 280. In 
 
 ^°® Austin v. Hudson River R. Co., Schwartz v. Salter, 40 La. Ann. 264, 
 
 25 N. Y. 334; Cook v. Champlain it was held that a lessee is not re- 
 
 Transp. Co., 1 Denio (N. Y.) 91. sponsible for losses by fire that are 
 
 357 Piles y, Magoon, 41 Me. 104. occasioned without his fault or neg- 
 
 ^■^ Lienow v. Ritchie, 8 Pick, lect, when the local statute and the 
 
 (Mass.) 235. instrument under which he holds 
 
 ^^^ Countess of Shrewsbury's Case, contain a provision to that effect. 
 
 5 Coke 14; 4 Kent. Com. 81; 1 Add. ^"Powell v. Dayton &c. R. Co., 16 
 
 Cont. (8th ed.) 253; Add. Torts Ore. 33, 16 Pac. 863. 
 239; Smith's Ld. & Ten. (3d ed.) 
 
 II
 
 721 RESPONSIBILITY FOR WASTE. [§ 628 
 
 during the continuance of the lease, so that the same may be restored 
 to the possession of the owner in a condition unimpaired by the negli- 
 gent conduct of the lessee.^®^ That a tenant is liable for negligence 
 and carelessness in the management of the leased premises, whereby 
 damages result to such premises, is quite clear as a matter of law.^®^ 
 As a general proposition of law, the landlord is not bound to repair 
 during a term without a special agreement, while it is the duty of the 
 tenant to keep the premises in repair.^^* There is an implied obli- 
 gation arising out of the relation of landlord and tenant that the 
 tenant will use reasonable care to prevent damage to the inherit- 
 ance.^®^ Every contract whereby the relation of landlord and tenant 
 is created contains as an implied part of it an obligation to use 
 the premises in a tenantlike manner, unless expressly excluded. Be- 
 sides the express written agreement there is an additional burden im- 
 posed by law; but it is all parcel of the original contract, by which 
 the relation of landlord and tenant was created between the parties.^®® 
 The lessee is not bound to make substantial, lasting or general repairs, 
 but only such ordinary repairs as are necessary to prevent waste and 
 decay of the premises. ^^'^ "This obligation arises from the mere rela- 
 tion of landlord and tenant. It is not a covenant to repair generally, 
 but so to use the property as to avoid the necessity for repairs, as far 
 as possible."^*^^ This rule that a lessee is liable for ordinary repairs, 
 also holds true of a tenant from year to year in the absence of agree- 
 ment or statute.^*'^ But the doctrine in regard to a tenant at will is 
 that he is not liable to his landlord for permissive waste by neglect to 
 make proper repairs.^^^ A tenant from year to year is only bound to 
 
 ^*^ Genau v. District of Columbia, '°^ Snydam v. Jackson, 54 N. Y. 
 
 20 Ct. CI. 389; Carlin v. Ritter, 68 450; Long v. Fltzimmons, 1 W. & 
 
 Md. 478, 482, 6 Am. St. 467; Snydam S. (Pa.) 530; Bold v. O'Brien, 12 
 
 V. Jackson, 54 N. Y. 450. Daly (N. Y.) 160; Johnson v. 
 
 «^ Wright v. Tileston, 60 Minn. 34, Dixon, 1 Daly (N. Y.) 178; Payne 
 
 61 N. W. 823. V. James, 45 La. Ann. 381, 12 So. 
 
 =••" Kellenberger v. Foresman, 13 492; Prosser v. Pretzel (Kan.), 55 
 
 Ind. 475; Moffatt v. Smith, 4 N. Y. Pac. 854. See John Morris Co. v. 
 
 126; Russell v. Rush, 2 Pittsb. R. Southworth, 154 111. 118, 39 N. E. 
 
 (Pa.) 134; Hitner v. Ege, 23 Pa. St. 1099, reversing 50 111. App. 429. 
 
 305. ^"^ Brown v. Crump, 1 Marsh. 567. 
 
 ^"^Nave V. Berry, 22 Ala. 382; Quoted in United States v. Bost- 
 
 Warder v. Henry, 117 Mo. 530, 23 wick, 94 U. S. 53, and Williams v. 
 
 S. W. 776; Hughes v. Vanstone, 24 Kearny Co., 61 Kan. 708, 60 Pac. 
 
 Mo. App. 637; Kellenberger v, 1046. 
 
 Foresman, 13 Ind. 475. ""' Hitner v. Ege, 23 Pa. St. 305. 
 
 ^» Holford V. Dunnett, 7 M. & W. '•" Parrott v. Barney, Deady 405, 
 
 348, 352. 18 Fed. Cas. No. 10773a. 
 
 Jones L. & T.— 46
 
 § 639] EIGHTS AND LIABILITIES OF THE PARTIES. 723 
 
 keep the demised house wind and water tight, and that is all he is 
 bound to do. A tenant who covenants to repair is to sustain and up- 
 hold the premises, but that is not the case with a tenant from year to 
 year.^^^ Although a lessee from year to year is not liable to general 
 repairs,^'^^ a tenant at will as well as a tenant for life or for years is 
 under an implied agreement to use the premises in a tenantlike man- 
 ner, and not by his voluntary act unnecessarily to injure them. While 
 this agreement does not include an obligation on the part of a tenant 
 at will to repair defects resulting from the action of the elements, or 
 from a reasonable use of the premises, or from an unavoidable acci- 
 dent, it creates a liability to an action of contract for a wrongful act 
 in violation of it.^" The acceptance of rent for the full term is not 
 necessarily a waiver of a right to recover damages for breach of such 
 a contract, but merely evidence of a waiver, although it may be a 
 waiver of a right to bring trespass quare clausum.^'''^ 
 
 In Vermont it has been held that a landlord may recover in as- 
 sumpsit damages caused to the leased premises by the negligence of 
 his tenant for a fixed term, even though there are no convenants in 
 the lease.^^^ 
 
 § 629. A tenant is only bound to make tenantable repairs, and is 
 not liable for the ordinary "wear and tear" of the premises, such as 
 are incident to the reasonable use and occupation of the same. The 
 tenantable repairs which the law imposes on the tenant, in the absence 
 of an undertaking on his part to repair, are such repairs as are re- 
 quired in the reasonable use and occupation of the premises, such as 
 keeping fences in order, replacing windows and doors broken during 
 the pendency of the lease.^^^ jf ^ demised building should fall because 
 it was too weak to endure an apparently legitimate use, it could not 
 be said that the injury was inflicted by a tenant. If the building fell 
 in consequence of its own defects, the loss would be from ordinary 
 
 '"Auworth v. Johnson, 5 C. & P. "^Wilcox v. Gate, 65 Vt. 478, 26 
 
 239, 24 E. C. L. 545. Atl. 1105. 
 
 =" Horsefall v. Mather, Holt. 7. ^* Genau v. District of Columbia, 
 
 s^' Chalmers v. Smith, 152 Mass. 20 Ct. CI. 389; Hughes v. Vanstone, 
 
 561, 26 N. E. 95; Holford v. Dun- 24 Mo. App. 637; Long v. Fitzim- 
 
 nett, 7 M. & W. 348; United States mons, 1 W. & S. (Pa.) 530; Daven- 
 
 v. Bostwick, 94 U. S. 53, 66; 1 Add. port v. United States, 26 Ct. CI. 
 
 Contr. (8th ed.) 383. 338; Hoyleman v. Kanawha &c. R. 
 
 ^* Chalmers v. Smith, 152 Mass. Co., 33 W. Va. 489; Kellenberger v. 
 
 561, 26 N. E. 95. Foresman, 13 Ind. 475. 
 
 i 
 
 i
 
 723 RESPONSIBILITY FOE WASTE. [§ 630 
 
 wear and tear.^" A tenant is not absolutely liable for the occurrence 
 of a permanent injury to the demised premises over and above ordi- 
 nary wear and tear. Such injury must be shown to be caused by some 
 wrongful act or negligence of the defendant before he can be made to 
 respond in damages.^"^ The ordinary care and attention which is usu- 
 ally required of millers operating leased mills would be cleaning and 
 dressing the stones, adjusting and regulating the machinery, cleaning 
 the race of such deposits or accretions as would follow the use of the 
 mill, and such other similar acts which demand the miller's skill, yet 
 which require neither the expenditure of money nor the consumption 
 of much time or labor.^^^ It would be the tenant's duty to remove 
 temporary or accidental obstructions from drains, spouts, water pipes 
 and the like, and to keep the premises in as good order as he received 
 them, whether stipulated for in the lease or not.^^" Ordinary repairs 
 must be paid for by the tenant unless he covenants otherwise, but 
 extraordinary repairs ought to be paid for by the landlord.^®^ 
 
 If it does not appear that the want of repair is causing an immedi- 
 ate injury to the estate, a life tenant could properly delay a reasonable 
 time to make the repairs, in order that they may be made at such 
 reasonable expense as the nature of the repairs and the condition of 
 the estate would reasonably require. The tenant cannot be held to a 
 more rigid rule in respect to the estate than would be observed by a 
 prudent man of his own estate absolutely.^ *^ 
 
 § 630. Where the lessees in a lease of real property have ex- 
 pressly covenanted to repair, the express covenant takes the place of 
 the implied covenant and becomes the measure of the tenant's lia- 
 bility.^^ ^ Though acts of a tenant are tortious in their nature, they 
 may also be breaches of his contract with his landlord for which the 
 tenant will be responsible in an action ex contractu. '^^^ Where lessees 
 contracted "to take good care of the leased building, and guard par- 
 ticularly against fire and waste," they could be sued in contract for 
 injuries for which they, would otherwise be liable in tort. But a tenant 
 
 ^"Machen v. Hooper, 73 Md. 342, (Pa.) 276; Hitner v. Ege, 23 Pa. 
 
 21 Atl. 67; Hess v. Newcomer, 7 St. 305. 
 
 Md. 325. 2^= Harvey v. Harvey, 41 Vt. 373. 
 
 "' Sheer v. Fisher, 27 111. App. ^^^ California &c. Co. v. Arm- 
 
 464. strong, 17 Fed. 216, 8 Sawy. (U. S.) 
 
 "'"Stultz V. Locke. 47 Md. 562. 523. 
 
 ^^0 Russell V. Rush, 2 Pittsb. R. ^^^ Carter v. George, 30 Kan. 45, 1 
 
 (Pa.) 134. Pac. 58. 
 
 '" Scheerer v. Dickson, 3 Brewst.
 
 §' 631] EIGHTS AXD LIABILITIES OF THE PARTIES. 724 
 
 for years, being liable for permissive waste, would also be liable in an 
 action sounding in tort for injuries to the inheritance, although he 
 were bound by express covenants to repair.^^^ An action may be one 
 of tort purely, although the existence of a contract may have been 
 the occasion or furnished the opportunity for committing the tort.^**' 
 It would be sufficient to allege the making of a lease, the entry of the 
 lessee, the good condition of the premises, and the injury caused by 
 the bad management of the lessee. Such a cause of action is one 
 sounding in tort and not in contract.^^^ 
 
 A lease in the terms "to have and to hold and to use and control as 
 the lessee thinks proper for his benefit during his natural life'' is 
 equivalent to a leasing without impeachment of waste. A clause with- 
 out impeachment of waste does not operate as a license to destroy 
 the estate or to commit malicious waste, such as cutting down fruit 
 or shade trees ; but it enables the tenant to cut wood and open mines. 
 The real intention of such a clause is to enable the tenant to do many 
 things which would otherwise amount to waste. These words do not 
 operate as a license to the tenant to destroy the estate or to commit 
 .malicious waste.^^® 
 
 § 631. On a demise of farming lands a covenant is raised by oper- 
 ation of law that they shall be used as such and cultivated in a hus- 
 bandlike manner; that no waste shall be committed and that the soil 
 shall not be exhausted by negligent or improper tillage.^*^ The bare 
 relation of landlord and tenant is a sufficient consideration to oblige 
 the tenant to farm in a good and husbandlike manner, according to 
 the custom of the country.^^° But the distinction must be noticed 
 between waste and bad husbandry. "It is not waste at common law,"' 
 observes Baron Parke, "either wilful or permissive, to leave the land 
 uncultivated. In order to oblige him to farm according to good hus- 
 bandry, you must have either some express contract, or some implied 
 contract from the custom of the eountry."^^^ In Vermont a landlord 
 can maintain assumpsit for the failure of his tenant on the shares to 
 
 »*'' Moore v. Townshend, 33 N. J. Chapel v. Hull, 60 Mich. 167, 26 N. 
 
 L. 284. W. 874; Conrad v. Morehead, 89 N. 
 
 ^^^Whittaker v. Collins, 34 Minn. Car. 31. 
 
 299, 25 N. W. 632. ^^ Powley v. Walker, 5 Term R. 
 
 ='" Wright v. Tileston, 60 Minn. 34, 373; Hallifax v. Chambers, 4 M. & 
 
 61 N. W. 823. W. 662; Westropp v. EUigott, L. R. 
 
 '^' Stevens v. Rose, 69 Mich. 259, 9 App. Cas. 815, 823. 
 
 37 N. W. 205. '" Hutton v. Warren, 1 M. & W. 
 
 ^Walker v. Tucker, 70 111. 527; 466, 476.
 
 725 RESPONSIBILITY FOR WASTE. [§ 631 
 
 conduct the leased farm in a Imsbandlike manner.^^- In that state it 
 is also settled that an action of account is the proper remedy for the 
 adjustment of controversies growing out of the common mode of 
 leasing farms for a share of the products and profits.^^^ To avoid 
 being guilty of waste, the tenant of a farm is bound to keep fences 
 in good repair, and he is responsible for all damage caused by his 
 failure to do so.^^* It has been declared that the law requires a tenant 
 to make ordinary repairs to buildings, to repair and keep up fences, 
 and to remove and keep down filth growing on farming and grazing 
 lands at his own expense, unless otherwise provided in the lease.^''^ 
 
 According to the law of England, if an ancient meadow which has 
 been meadow time out of memory, as brook meadow, is converted into 
 arable land, this is waste.^^® Proof that land has been meadow so far 
 as memory extends not to the contrary is conclusive evidence of its 
 being ancient meadow, in the absence of earlier evidence still. In the 
 IJnited States, the jDrinciple of the common law under consideration 
 was not applicable at the time of settlement, and has not been ap- 
 plicable at any time since ; for it has been the constant usage of farm- 
 ers to break up their grass lands for the purpose of raising crops by 
 tillage -and laying them down to grass again.^^^ So it may be laid 
 down as a general rule in this country that plowing up meadow land 
 and planting a grain crop,^^* or converting meadow land into pasture 
 land,^"'' is not waste when such a course is natural and would not be 
 injurious to the reversion. But where a tenant starts in to plow up all 
 the meadow land on the farm, which will seriously injure it and de- 
 stroy its rental value, the landlord can have him enjoined from com- 
 mitting such waste.*"" 
 
 The destruction of ornamental trees, fences and walls, and the 
 quarrying and removal of stone and gravel, is voluntary waste.*"^ 
 Digging up and carrying away fruit trees also constitutes the same 
 kind of waste.*"^ So it has been held that barking and plowing up 
 
 '== Reynolds v. Chynoweth, 68 Vt. «°^ Pynchon v. Stearns, 11 Mete. 
 
 104, 34 Atl. 36. (Mass.) 304, 45 Am. Dec. 207. 
 
 ^'^La Point v. Scott, 36 Vt. 603. ^^ bubble v. Cole, 85 Va. 87, 7 S. 
 
 =»* Andrews v. Jones, 36 Tex. 149; E. 242. 
 
 Fenton v. Montgomery, 19 Mo. App. ^"° Clemence v. Steere, 1 R. I. 272. 
 
 156; Hoyleman v. Kanawha &c. R. ^»° Chapel v. Hull, 60 Mich. 167, 
 
 Co., 33 W. Va. 489. 26 N. W. 874. 
 
 '°=Windon v. Stewart, 43 W. Va. «'' United States v. Bostwick, 94 
 
 711, 28 S. E. 776. U. S. 53. 
 
 =™ Tresham v. Lamb, 2 Rolle Abr. *°- Bellows v. McGinnis, 17 Ind. 64. 
 814; Darcy v. Askwith, Hobart 234; 
 Atkins v. Temple, 1 Rep. in ch. 14.
 
 I 
 
 § 632] RIGHTS AXD LIABILITIES OF THE PARTIES. 726 
 
 young apple trees by cultivating a crop among them is not ordinary 
 "wear and tear" of a farm rented for a year.^°^ To permit stock to 
 go into an orchard and destroy fruit trees is a want of reasonable 
 care, and constitutes waste on the part of a tenant.'*'** The same is 
 true of the act of a tenant in turning hogs into a meadow, whereby 
 it is rooted up and injured.*"^ On a demise of farming lands the 
 lessee covenanted that he would "generally improve the property." 
 This general improvement, by a fair construction, referred to the 
 treatment of the lands in their use for agricultural purposes. The 
 mode of cultivation, the proper and sufficient use of manures in en- 
 riching the land, and matters of that sort, are within the meaning of 
 such a stipulation. To hold it to relate to improvements of any other 
 character would leave the obligations of the tenant under it un- 
 bounded. Such a construction cannot properly be contended for.*"^ 
 
 § 632. A tenant, whether rightfully in possession or not, cannot, 
 without the consent of the landlord, make material changes or alter- 
 ations in a building to suit his taste or convenience, and, if he does, 
 ■ it is waste. The law is undoubtedly so settled. Any material change in 
 the nature or character of the buildings made by the tenant is waste, 
 although the value of the property should be enhanced by the altera- 
 tion.*"'^ A tenant cannot, under the pretense of advantage to the 
 reversioner, change the nature of buildings, and such changes, though 
 beneficial, would be waste.*"^ The American cases have modified the 
 law of waste in regard to farming lands to adapt it to the circum- 
 stances of a new and growing country, in order to encourage the ten- 
 ant for life in making a reasonable use of wild and undeveloped 
 land.*"^ But it has been declared that there can be no pretense of a 
 modification in the rule against waste in the case of tearing down 
 houses or taking away inner walls or partitions. It would be difficult 
 to set any limits to such acts by judicial decisions. Where such 
 
 "' Thompson v. Cummings, 39 Klie v. Von Broock, 56 N. J. Eq. 18, 
 
 Mo. App. 537. 37 Atl. 469. 
 
 *"^ Warder v. Henry, 117 Mo. 530, *'>^ Jackson v. Andrew, 18 Johns. 
 
 23 S. W. 776. (N. Y.) 431, 434; M'Cullough v. 
 
 '"= Bellows v. McGinnis, 17 Ind. 64. Irvine, 13 Pa. St. 438; Doe v. Jones, 
 
 *»«Naye v. Noezel, 50 N. J. L. 523, 4 B. & Ad. 126; Agate v. Lowen- 
 
 14 Atl. 750. bein, 57 N. Y. 604. 
 
 "'Brock v. Dole, 66 Wis. 142, 28 *»» Hastings v. Crunckleton, 3 
 
 N. W. 334; Kidd v. Dennison, 6 Yeates (Pa.) 261; Findlay v. Smith, 
 
 Barb. (N. Y.) 9, 13; Douglass v. 6 Munf. (Va.) 134; Ballentine v. 
 
 Wiggins, 1 Johns. Ch. (N. Y.) 435; Poyner, 2 Hayw. (N. Car.) 110; 
 
 Irwin v. Covode, 224 Pa. St. 162.
 
 727 RESPONSIBILITY FOE WASTE. [§632 
 
 changes are desired they should be left to the agreement of the par- 
 ties.*^" In the eases which are supposed to illustrate this modifica- 
 tion, a permission by the owner to the tenant to alter and change the 
 building is either found in the terms of the demise or is to be im- 
 plied from the circumstances of the case.*^^ If by the terms of his 
 lease it appears that additions and improvements were to be made by 
 the lessee, no action of waste can be sustained against him, although 
 he make such alterations as at common law would have been waste.*^^ 
 A covenant on the part of a lessee to keep repaired such improvements 
 as he should make creates an implied contract on the part of the 
 lessor that such improvements might be made, although they would 
 be waste at common law.*^^ Where a lease authorized a lessee to make 
 inside alterations, provided he did not injure the premises, it was 
 held to be a question of fact to be submitted to the jury whether the 
 taking down of partitions did not injure the premises.*^* The reason 
 for this is that such expressions do not relieve the tenant from lia- 
 bility for voluntary waste, and the acts of the tenant must be to the 
 permanent improvement of the estate, and such as a prudent owner 
 would do.*^^ A covenant by a lessee to make no strip or waste would 
 not be inconsistent with a permission to him to make improvements ; 
 a covenant of this kind would restrain the tenant from injuring the 
 premises, but would not preclude him from making such alterations 
 in the demised premises as might be for their interest and benefit, 
 although they might come within the strict legal definition of waste."*' 
 The rise in value of land during the holding of the tenant cannot 
 be taken into account in determining whether the act of the tenant 
 injures the inheritance. It is waste for a tenant for life to tear down 
 a building, although the estate, without the building, is more valuable 
 intrinsically than it was at the beginning of the life estate, because of 
 a general rise in values.*^^ A mere intention to erect a better struc- 
 ture will not prevent the tearing down of a building from being 
 waste.*^^ A stipulation in a lease allowing alterations to adapt build- 
 
 "* Agate v. Lowenbein, 57 N. Y. The reductio ad absurdam sug- 
 
 604; Klie v. Von Broock, 56 N. J. gested in Garth v. Cotton, 1 Ves. 
 
 Eq. 18, 37 Atl. 469. Sr. 524, 1 Dick. 123, that tenant 
 
 *"Klie V. Von Broock, 56 N. J. might commit waste if it did not 
 
 Eq. 18, 37 Atl. 469. amount to waste has been disap- 
 
 "2 Hasty V. Wheeler, 12 Me. 434; proved. 
 
 Doe V. Jones, 4 B. & Ad. 126. "° Hasty v. Wheeler, 12 Me. 434. 
 
 *" Doe V. Jones, 4 B. & Ad. 126. *" M'Cullough v. Irvine, 13 Pa. St. 
 
 *" Agate V. Lowenbein, 57 N. Y. 438. 
 
 604. "* Dooly v. Stringham, 4 Utah 
 
 *"> Vincent v. Spicer, 22 Beav. 880. 107, 7 Pac. 405.
 
 I 
 
 § 633] EIGHTS AXD LIABILITIES OF THE PARTIES. 728 
 
 ings on land for other purposes than that of livery stable does not 
 confer a right to tear down and destroy such building, even though a 
 better or more expensive one be erected in its place.* ^^ A tenant has 
 no right to pull down a building/ ^'^ even though the structure is in 
 such a state of dilapidation that it is beyond repair. But he may 
 protect himself by tearing it down when it is so ruinous as to be liable 
 to fall and cause injury.*^^ 
 
 § 633. The cases in this country relied on to show an amelioration 
 of the strict English rule are Jackson v, Tibbits/-^ and Winship v. 
 Pitts.* 2^ In the former case the waste was the cutting a door between 
 two rooms in the second story, and putting a window in the door of 
 a cellar. These changes were beneficial to the premises. The judge, 
 at the trial, charged that this was waste and worked a forfeiture, but 
 a new trial was granted on the ground that the whole premises were 
 not forfeited, but only the part wasted, and, further, that there was 
 proof from which the jury might infer a waiver. In the second case 
 a tenant of a lot which had vacant land in the rear proposed to erect 
 a stable there, and the landlord, owning other land in the neighbor- 
 hood, filed a bill for an injunction. The chancellor held that the mere 
 erection of a stable on vacant land was not waste. It never has been 
 waste for a tenant to erect a new edifice on vacant land.*^* A Massa- 
 chusetts case has gone further and adopted the doctrine that the 
 changes and alterations attendant upon the development of land near 
 a city for residential purposes is not waste if the land is thereby in- 
 creased in value. So there was declared to be no authority for holding 
 that the opening of a new street by a tenant and draining land were 
 acts of waste. If breaking up meadow land occasionally was a judi- 
 cious and suitable mode of husbandry, the changing the surface by 
 breaking up and cultivating it was not waste ; removing soil for the 
 building of houses and erecting them, and digging drains, if the estate 
 on the whole would be equally or more valuable to the owners of the 
 inheritance, would not be waste.*^^ 
 
 The effect of changing conditions was illustrated in a striking way 
 
 ""Davenport v. Magoon, 13 Ore. 3. Eq. 18, 37 Atl. 469; Hubble v. Cole, 
 
 *=" Cannon v. Barry, 59 Miss. 289. 85 Va. 87, 7 S. E. 242; Pynchon v. 
 
 ^^^Clemence v. Steere, 1 R. I. 272. Stearns, 11 Mete. (Mass.) 304, 45 
 
 *==- Jackson v. Tibbets, 3 Wend. Am. Dec. 207; Winship v. Pitts, 3 
 
 (N. Y.) 341. Paige (N. Y.) 259, 262; Bac. Abr. 
 
 *=^ Winship v. Pitts, 3 Paige (N. Waste, ch. 5. 
 
 Y.) 259. ^ '-'' Pynchon v. Stearns, 11 Mete. 
 
 ***Klie v. Von Broock, 56 N. J. (Mass.) 304; 45 Am. Dec. 207.
 
 729 RESPONSIBILITY FOR WASTE. [§' 634 
 
 in a case arising in Wisconsin. Advancing business and manufactur- 
 ing interests surrounded a once elegant mansion, until it stood iso- 
 lated and alone, standing upon just enough ground to support it, and 
 surrounded by factories and railway tracks, absolutely undesirable 
 as a residence and incapable of any use as business property. Such a 
 complete change of conditions, not produced by the tenant, but re- 
 sulting from causes which none could control, could not be ignored, 
 and the ironclad rule could not be applied that a tenant can make no 
 change in the uses of the property because he will destroy its identity. 
 The tenant was not required to stand by and preserve the useless 
 dwelling house. The court restricts the scope of this decision, and 
 says that it is not to be construed as justifying a tenant in making 
 substantial changes in the leasehold property, or the buildings thereon, 
 to suit his own whim or convenience, because he may be able to show 
 that the change is in some degree beneficial. Under all ordinary cir- 
 cumstances, the landlord or reversioner is entitled to receive the prop- 
 erty at the close of the tenancy in substantially the condition in which 
 it was when the tenant received it, but after a complete and perma- 
 nent change of surrounding conditions, the question whether a life 
 tenant has been guilty of waste in making changes necessary to make 
 the property useful is a question of fact for the jury.*^*' 
 
 Furthermore, changed economic conditions have been held to re- 
 lease a life tenant of farming land from his obligation to repair, when 
 the structures which were suffered to decay were not suited for use 
 under changed conditions. The rule has been stated to be that where 
 a prudent owner of the fee would have suffered the barn or other 
 building, unsuitable because of its great proportions to his wants un- 
 der the new state of society since the abolition of slavery, to have 
 fallen into decay rather than incur the cost of repair, then the tenant 
 would not be liable for permissive waste. *^'^ 
 
 § 634. The intent or motive with which a tenant acts is imma- 
 terial in determining what constitutes waste. A tenant for life can- 
 not pull down buildings, cut off timber trees, or do other acts which 
 tend to the disherison of the remainderman or reversioner, and justify 
 them on the ground that he acted in good faith, without any pur- 
 pose of permanently injuring the estate. Such acts, in law, constitute 
 waste, for which the tenant for life is liable, however innocent or 
 
 *^ Melms v. Pabst Brewing Co., *=^ Sherrill v. Connor, 107 N. Car. 
 104 Wis. 7, 79 N. W. 738. 630, 12 S. E. 588.
 
 § 635] EIGHTS AXD LIABILITIES OF THE PARTIES. 730 
 
 honest may have been the purpose with which they were done.*^* 
 Where a statute declared it criminal in a tenant during his term to 
 wilfully and unlawfully injure or damage the leased house, and the 
 tenant removed from the house certain window sashes which he had 
 placed in them, under a claim that they belonged to him, it was held 
 that it did not come within the meaning of the statute,*^^ A tenant 
 who, as a wilful wrong-doer, commits waste by removing a building 
 is chargeable to the reversioner with the highest probable or specu- 
 lative value of such building.*^" 
 
 § 635. A tenant for life or for years who cuts standing timber 
 for the purpose of sale, and not merely for necessary estovers or for 
 reasonable clearing for cultivation, is guilty of waste according to 
 the common-law rule.^^^ This rule has been applied, even though the 
 tenant has a right to cut firewood and firewood is taken in exchange, 
 because firewood might have been secured directly, without resorting 
 to the cutting of timber trees.*^- So it has been held to be objection- 
 able for a tenant to cut timber to burn bricks which have been made 
 for the purpose of sale.*^^ An exception to the general rule allows 
 the tenant to exchange timber cut on the leasehold premises for lum- 
 ber with which to make necessary repairs when that seems to be the 
 most economical mode of making the repairs.*^* 
 
 An authority to clear land for cultivation does not, according to an 
 Alabama decision, give the tenant a right to make merchandise of the 
 timber taken from the parts cleared, nor does an authority to use 
 land and take care of it confer such a power.*^^ 
 
 A tenant for life or for years of a farm has a right to cut wood in 
 reasonable quantities for fires and repairs.*^® It is not required or 
 
 *^« Clark V. Holden, 7 Gray Towne, 10 Mass. 303; Conner v. 
 
 (Mass.) 8. Shepherd, 15 Mass. 164. 
 
 '"' State V. Whitener, 93 N. Car. "= Padelford v. Padelford, 7 Pick. 
 
 590. (Mass.) 152. 
 
 ""Tate V. Field, 57 N. J. Eq. 53, ^=' Livingston v. Reynolds, 26 
 
 40 Atl. 206. Wend. (N. Y.) 115. 
 
 "1 Warren County v. Gans, 80. ^'* Loomis v. Wilbur, 5 Mason (U. 
 
 Miss. 76, 31 So. 539; Padelford v. S.) 13; Sarles v. Sarles, 3 Sandf. 
 
 Padelford, 7 Pick. (Mass.) 152; Ch. (N. Y.) 601; Miller v. Shields, 
 
 Kidd V. Dennison, 6 Barb. (N. Y.) 55 Ind. 71. 
 
 9; Proffitt V. Henderson. 29 Mo. 325; «»Ladd v. Shattock, 90 Ala. 134, 
 
 Davis V. Gillian, 5 Ired. Eq. (N. 7 So. 764. 
 
 Car.) 308; Clemence v. Steere, 1 R. "*" Hubbard v. Shaw, 12 Allen 
 
 I. 272; Loudon v. Warfleld, 5 J. J. (Mass.) 120; Calvert v. Rice, 91 
 
 Marsh. (Ky.) 196: Sargent v. Ky. 533, 34 Am. St. 240; Loudon v. 
 
 II
 
 731 KESPOXSIBILITY FOR WASTE. [§ 635 
 
 expected of the tenant that he shall expend his money in buying plank 
 or lumber to improve fences and keep the premises in repair, so that 
 the timber may pass from him to the inheritance untouched, although 
 its judicious use may lessen the value of the estate. The owner of the 
 fee would use the timber. He would not cut trees in a yard left for 
 ornamental purposes, nor could the tenant, without being guilty of 
 waste; but ordinary woodland can be used in a prudent manner for 
 the benefit of the premises.*^ ^ But to make improvements which it is 
 not the duty of the tenant to make, he may not commit waste upon 
 the inheritance by cutting timber, and justify it on the ground that 
 the benefit compensates the damage.*^''® Thus, where a building is 
 destroyed by act of God, the tenant has no right to take timber from 
 the estate, to its injury, to rebuild, on the ground of its compensating 
 the injury by equal benefit, because this would be allowing the tenant 
 to force the reversioner to submit to the judgment and will of the ten- 
 ant in a matter touching his estate which might not be in accordance 
 with his own.*^^ 
 
 Although it is ordinarily implied that every tenant of a farm is en- 
 titled to wood necessary for fuel and for repairs on fences and build- 
 ings, where a tenant covenants to keep in repair he must supply his 
 own materials for use in making repairs.**" The profitable enjoyment 
 of the land is not the proper criterion to determine the question of 
 waste. There may be waste where there is such profitable enjoyment, 
 and there may be profitable enjoyment without waste. The cutting of 
 timber may be necessary to the profitable enjoyment of the land ac- 
 cording to the tenant's standard of profit, and yet be a great outrage 
 upon the rights of the reversioner. If land is valuable for the timber 
 upon it alone, it would surely be waste for a tenant to cut and carry 
 away all the timber of any value ; in that case the tenant must respect 
 the rights of the owner of the inheritance.**^ If a tenant for life by 
 right of dower permitted a pasture to become woodland, bearing a 
 growth fit for timber, and it was de facto such woodland when the 
 wood and timber were cut, such cutting was waste, in the same man- 
 
 Warfield, 5 J. J. Marsh. (Ky.) 196; Clarke v. Cummings, 5 Barb. (N. 
 
 Miles V. Miles, 32 N. H. 147, 64 Am. Y.) 339; Sohier v. Eldredge, 103 
 
 Dec. 362; Walters v. Hutchins, 29 Mass. 345, 351; Smith v. Jewett, 40 
 
 Ind. 136; Alexander v. Fisher, 7 N. H. 530. 
 
 Ala. 514; Miller v. Shields, 55 Ind. ""Miller v. Shields, 55 Ind. 71. 
 
 71. «» Harris v. Goslin, 3 Harr. (Del.) 
 
 *" Calvert v. Rice, 91 Ky. 533, 34 340. 
 
 Am. St. 240. ^Proffitt v. Henderson, 29 Mo. 
 
 «' Miller v. Shields, 55 Ind. 71; 325.
 
 §' 636] EIGHTS AXD LIABILITIES OF THE PARTIES, 733 
 
 ner and to the same extent as it would have been had it been woodland 
 of the same description when it was set off to her as dower. It was 
 wood and timber land when the timber was cut ; it was held by a ten- 
 ant for life ; and therefore cutting timber and other wood for purposes 
 other than the use of the estate for timber and fuel, by tenant for 
 life was waste. The tenant in dower had no right, after the land had 
 become covered with a growth of wood and timber by her permission, 
 to cut it, beyond the amount required for the estate itself, even though 
 it might have been good husbandry in an owner in fee thus to take off 
 the wood and timber, clear up the land and thus again bring it under 
 cultivation.**^ 
 
 An action of trover or replevin will lie at the suit of a landlord 
 against his tenant, pending the tenancy, for wood into which trees 
 wrongfully severed from the demised premises by the tenant have been 
 converted.**^ The tenant's possession of the land entitles him to the 
 possession of all that is attached to it so as to constitute a part of the 
 freehold — as trees — so long as they remain so attached and continue 
 to be a part of the freehold ; but he has no title to trees and can assert 
 no adverse claim to them against his landlord. The title to them, as 
 to the land, remains in the landlord. When they are severed from the 
 freehold they cease to be a part of the thing leased by the tenant; 
 they are no longer a part of the realty. To show title to the person- 
 alty in such case involves no inquiry into the title of the land from 
 which the severance has been made, and no inquiry as to the right of 
 possession of the land. The plaintiff is not required to say he had 
 title to the land, and the defendant is not allowed to say that the 
 plaintiff has no title ; that issue cannot be made ; the relation of land- 
 lord and tenant entirely eliminates it.*** 
 
 §• 636. Where wild timber land is leased for fanning, the parties 
 are presumed to intend that the lessee should be at liberty to cut part 
 of the timber to fit the land for cultivation.**^ In the United States 
 
 "2 Clark V. Holden, 7 Gray 556, 18 Am. Dec. 748; Mooers v. 
 
 (Mass.) 8; McGregor v. Brown, 10 Wait, 3 Wend. (N. Y.) 104, 20 Am. 
 
 N. Y. 114. Dec. 667. 
 
 *« Brooks V. Rogers, 101 Ala. Ill, ^"Brooks v. Rogers, 101 Ala. Ill, 
 
 13 So. 386; Street v. Nelson, 80 Ala. 13 So. 386. 
 
 230; Harlan v. Harlan, 15 Pa. St. **" Ballentine v. Poyner, 2 Hayw. 
 
 507, 513; Anderson v. Hapler, 34 (N. Car.) 110; Ward v. Sheppard, 
 
 111. 436; Congregational Society v. 2 Hayw. (N. Car.) 283; King v. 
 
 Fleming, 11 Iowa 533; Dorsey v. Miller, 99 N. Car. 583, 6 S. E. 660; 
 
 Moore, 100 N. Car. 44, 6 S. E. 270; Chase v. Hazelton, 7 N. H. 171; 
 
 Farrant v. Thompson, 5 B. & Aid. 9; Jackson v. Brownson, 7 Johns. 
 
 826; Truss v. Old, 6 Rand. (Va.) (N. Y.) 227, 233; Mooers v. Wait, 3
 
 733 RESPONSIBILITY FOR WASTE. [§ 636 
 
 the cutting of timber in order to clear up wild land and fit it for cul- 
 tivation, if consonant with the rules of good husbandry, is not waste, 
 although such acts would clearly be waste in England.**'' So it has 
 been held that a tenant in dower may clear woodland assigned to her 
 in dower, provided she does not exceed a Just proportion of the whole 
 tract.**'^ The timber thus cut for the purpose of clearing may be sold 
 without rendering the tenant liable for waste.**^ A life tenant of 
 wild timber lands has a right to sell enough timber to pay taxes and 
 the expenses of protecting the property.**^ For the purpose of redeem- 
 ing land sold for taxes, and of subsequently keeping down the taxes, 
 a life tenant will be permitted to fell timber in such quantities and 
 at such places as do not seriously impair the value of the inher- 
 itance.*^" It naturally follows that to cut decaying trees, in order to 
 give younger trees a chance to grow, has been held not to be waste.*^^ 
 Whether or not the cutting of timber upon the premises by the tenant 
 for life be waste will depend on the custom of farmers, the situation 
 of the country, and the value of the timber.*^- It has been declared 
 that the cutting down of timber is not waste unless it does a lasting 
 damage to the inheritance and deteriorates its value ; and not then if 
 no more is cut down than was necessary for the ordinary enjoyment 
 of the land by the tenant for life.*^^ In determining what extent of 
 clearing land amounts to waste, regard must be had to the condition 
 of the premises, and the inquiry should be, were the acts of felling 
 trees such as a judicious, prudent owner of the inheritance would have 
 committed;*^* and it is for the jury to determine how much may be 
 cut before the tenant is guilty of exceeding such a limit. ^^^ 
 
 Wend. (N. Y.) 104, 107; Jackson v. (N. Car.) 308; Keeler v. Eastman, 
 
 Andrew, 18 Johns. (N. Y.) 431. 11 Vt. 293. 
 
 ^"McNichol V. Eaton, 77 Me. 246; "'Crockett v. Crockett, 2 Ohio St. 
 
 Drown v. Smith, 52 Me. 141; Wil- 180. 
 
 kinson v. Wilkinson, 59 Wis. 557, «» Cannon v. Barry, 59 Miss. 289. 
 
 18 N. W. 527; Melms v. Pabst Brew- *" Keeler v. Eastman, 11 Vt. 293; 
 
 Ing Co., 104 Wis. 7, 79 N. W. 738; Sayers v. Hoskinson, 110 Pa. St. 
 
 Cannon v. Barry, 59 Miss. 289; Lam- 478, 1 Atl. 308. 
 
 beth V. Warner, 2 Jones Eq. (N. ^'= M'Cullough v. Irvine, 13 Pa. St. 
 
 Car.) 165; King v. Miller, 99 N. 438. 
 
 Car. 583, 6 S. E. 660; Crockett v. *" Shine v. Wilcox, 1 Dev. & B. 
 
 Crockett, 2 Ohio St. 180. Eq. (N. Car.) 631; Ballentine v. 
 
 "'Hastings v. Crunckleton, 3 Poyner, 2 Hayw. (N. Car.) 110. 
 
 Yeates (Pa.) 261; Lynn's Appeal, «* Woodward v. Gates, 38 Ga. 205. 
 
 7 Casey (Pa.) 44; Sayers v. Hos- ''= Chase v. Hazelton, 7 N. H. 171; 
 
 kinson, 110 Pa. St. 473, 1 Atl. 308; Kidd v. Dennison, 6 Barb. (N. Y.) 
 
 Alexander v. Fisher, 7 Ala. 514. 9; Jackson v. Brownson, 7 Johns. 
 
 "^ Davis V. Gilliam, 5 Ired. Eq. (N. Y.) 227,233; Mooers v. Wait, 3
 
 I 
 
 637] 
 
 EIGHTS AND LIABILITIES OF THE PARTIES. 
 
 734 
 
 § 637. It is the duty of a tenant for life to cause all taxes as- 
 sessed against his estate during the tenancy to be paid, and if he neg- 
 lects this duty, thereby subjecting the estate to sale, an action at law 
 for waste may be maintained against him.*^'' Where there is no cove- 
 nant or provision to the contrary, a life tenant must keep down all 
 charges upon the property necessary to preserve it for the remainder- 
 man.*^^ The act of a life tenant in permitting a large part of his 
 estate to be forfeited for unpaid taxes is voluntary waste. That the 
 land forfeited was unproductive woodland, that there remained be- 
 longing to the estate sufficient wood to supply its wants indefinitely, 
 that the land had been overvalued by the assessor, and that the life 
 tenant had tried in vain to have the valuation reduced, and that the 
 tax was illegal, afforded no excuse. The life tenant took the estate as 
 a whole, and was bound so to preserve it. He could not segregate the 
 profitable from the unprofitable, nor the sterile from the fertile, by 
 preserving the one at the sacrifice of the other. The taxes were his 
 individual debt.*^« A tenant for life is required to keep the building 
 in which he may have a life estate from going into decay by using 
 ordinary care; but he is not required to expend any extraordinary 
 sums.*^^ The obligations of an equitable tenant for life as to keeping 
 buildings in repair are substantially the same as those of a legal life 
 tenant.*''" But although these obligations are imposed upon the life 
 tenant, yet he cannot make improvements at the expense of the re- 
 mainderman, whether necessary or not.*" By the strict rules of tbe old 
 common law, a tenant for life subject to waste could not open a new 
 mine, and if he did so he would be guilty of waste.*" ^ But he could 
 
 Wend. (N. Y.) 104, 107; Jackson v. 
 Andrew, 18 Johns. (N. Y.) 431; 
 Drown v. Smith, 52 Me. 141. 
 
 ""Stetson v. Day, 51 Me. 434; Mc- 
 Millan v. Robbins, 5 Ohio 28; Var- 
 ney v. Stevens, 22 Me. 331; Pretty- 
 man v. Walston, 34 111. 175, 192; 
 Phelan v. Boylan, 25 Wis. 679; 
 Parish v. Camplin, 139 Ind. 1, 15, 
 37 N. E. 607; Crentz v. Heil, 89 Ky. 
 429, 12 S. W. 926; Cannon v. Barry, 
 59 Miss. 289; Carter v. Youngs, 42 
 N. Y. Super. Ct. 418. 
 
 *" Hart V. Hart, 117 Wis. 639, 653, 
 94 N. W. 890; Phelan v. Boylan, 25 
 Wis. 679. 
 
 «« Cannon v. Barry, 59 Miss. 289. 
 
 «» Wilson v. Edmonds, 24 N. H. 
 
 517; Parish v. Camplin, 139 Ind. 1, 
 15, 37 N. E. 607; Miller v. Shields, 
 55 Ind. 71; Carter v. Youngs, 42 
 N. Y. Super. Ct. 418; Co. Litt. 53a, 
 b; 2 Black. Com. 281. 
 
 ^'"' Schulting v. Schulting, 41 N. J. 
 Eq. 130, 3 Atl. 526; Combes v. Cad- 
 mus, 36 N. J. Eq. 382, s. c. 37 N. J. 
 Eq. 264. 
 
 «i Parish v. Camplin, 139 Ind. 1, 
 15, 37 N. E. 607; Miller v. Shields, 
 55 Ind. 71; Clark v. Middlesworth, 
 82 Ind. 240. 
 
 «»2 Whitfield v. Bewit, 2 P. Wil- 
 liams 240; Hook v. The Garfield 
 Coal Co., 112 Iowa 210, 83 N. W. 
 963; Williamson v. Jones, 43 W. 
 Va. 562, 27 S. E. 411.
 
 735 EESPONSIBILITY FOR WASTE. [§ 638 
 
 operate open ones existing at the commencement of the life estate,*®^ 
 even to the point of exhaustion, without making himself responsible 
 to the owner of the reversion.*^* And if the mines have been opened 
 before the tenant's estate began, he can enlarge them and operate 
 them, even though they had been abandoned.**'^ 
 
 § 638. When waste is threatened an Injunction to prevent it is 
 the proper remedy.'*'"' But an injunction will not lie for waste already 
 committed when no further waste is threatened.*^'^ Nor will equity 
 interfere to oust a tenant from year to year because he is a bad man- 
 ager and insolvent.**'^ A lessor may, by injunction, prevent his lessee 
 from converting the demised premises to uses inconsistent with the 
 terms of the lease, and from making material alterations, and com- 
 mitting other kinds of waste.*"^ A court of equity has power to pro- 
 tect a reversioner against waste by a tenant in possession. But it will 
 not interfere unless it is shown that a positive injury to the premises, 
 repugnant to the terms of the lease, or their conversion to uses un- 
 authorized is contemplated and reasonably apprehended.*''" Thus a 
 court of equity restrained a tenant under a perpetual lease from tear- 
 ing down a building on the premises where such removal would impair 
 the security for rent ; but so long as the rent is not rendered insecure, 
 the right of the tenant to alter, remodel and reconstruct at his own 
 pleasure ought not to be interfered with,*"^ In modern equity prac- 
 tice an injunction to restrain waste will be granted in many instances 
 where no legal action could be maintained, although the interest of 
 the injured party is legal, and also where the estate of the injured 
 party is entirely equitable. An injunction may also be granted to re- 
 strain threatened waste, although none has been committed. The 
 common-law remedies for waste were insufficient for, among other 
 
 *«^ Saunders' Case, 5 Coke 12; 271; Brock v. Dole, 66 Wis. 142, 28 
 
 Astry v. Ballard, 2 Lev. 185. N. W. 334. 
 
 ^'^ Williamson v. Jones, 43 W. Va. '" Crockett v. Crockett, 2 Ohio St. 
 
 562, 27 S. E. 411; Sayers v. Hoskin- 180. See also. Smith v. Cooke, 3 
 
 son, 110 Pa. St. 473, 1 Atl. 308; Atk. 378, 381. 
 
 Neel v. Neel, 19 Pa. St. 323; Lynn's ^"^ Blain v. Everitt, 36 Md. 73. 
 
 Appeal, 31 Pa. St. 44. Contra, Hill ^•''Douglass v. Wiggins, 1 Johns. 
 
 v. Taylor, 22 Cal. 191. Ch. (N. Y.) 435; Maddox v. White, 
 
 '•^Gaines v. Green Pond &c. Co., 4 Md. 72; Barret v. Blagrave, 5 
 
 33 N. J. Eq. 603. Ves. 555; Klie v. Von Broock, 56 N. 
 
 «=° Dooley v. Stringham, 4 Utah J. Eq. 18, 37 Atl. 469. 
 
 107, 7 Pac. 405; Loudon v. Warfield, "'"McDaniel v. Callan, 75 Ala. 327. 
 
 5 J. J. Marsh. (Ky.) 196; United "'Crowe v. Wilson, 65 Md. 479, 5 
 
 States v. Parrott, 1 McAll. (U. S.) Atl. 427.
 
 § 639] RIGHTS AND LIABILITIES OF THE PARTIES. 736 
 
 reasons, they did not stop the injury that was going on ; hence courts 
 of equity interposed by injunction to restrain the defendant from con- 
 tinuing to commit waste ; and its remedy has been found so simple and 
 so effective that it has to a great extent superseded the common-law 
 action.'*^ 2 It is not ordinarily necessary to the issuing an injunction 
 restraining waste that the party in possession should be shown to be 
 insolvent.*^^ It has been declared to be the rule that courts of equity 
 will take no jurisdiction of permissive waste by a life tenant, because 
 their constant interference in such matters would render the enjoy- 
 ment of the life estate impossible.*^'' Yet, where the neglect and 
 omissions of the lessees to perform their obligations under a lease 
 resulted in waste, which, if permitted to continue, must eventually 
 result in the ruin and destruction of its subject-matter, to the irre- 
 parable damage of the lessor, a court of equity did interfere and can- 
 celed the lease to prevent such waste and destruction.'*^^ 
 
 In ordinary cases, the account for waste already committed is merely 
 incidental to the relief by injunction against future waste, and is 
 directed upon the principle of preventing a needless multiplication of 
 suits ; it is not in itself a substantive ground of equitable relief, as the 
 remedy at law is adequate.*^® 
 
 § 639. Forfeiture of the place wasted and treble damages were 
 the punitive measures provided by the statute of Gloucester*" upon 
 the conviction of a tenant for committing wastej*^* but the action on 
 the case in the nature of waste, which superseded the writ of waste, 
 entitles the landlord to recover actual damages only, and does not 
 involve the forfeiture of the estate. This ground of forfeiture, just 
 like any other, may be waived by the person entitled to claim it ; so 
 where the landlord lies by till the waste committed by the tenant has 
 been repaired, he cannot subsequently insist on a forfeiture.*'^ By 
 statute in Indiana, judgment of forfeiture and eviction shall only be 
 given in favor of the person entitled to the reversion against the 
 
 "= Palmer v. Young, 108 111. App. *" 6 Edw. I, ch. 5. 
 
 252. *" Crowe v. Wilson, 65 Md. 479, 5 
 
 ^"Williams v. Chicago Exhibition Atl. 427; Sackett v. Sackett, 8 Pick. 
 
 Co., 188 111. 19, 58 N. E. 611. (Mass.) 309; Stetson v. Day, 51 Me. 
 
 ^"* Cannon v. Barry, 59 Miss. 289. 434; McMillan v. Robbins, 5 Ohio 
 
 "''Anderson v. Hammon, 19 Ore. 28; Prettyman v. Walston, 34 111. 
 
 446, 24 Pac. 228. 175, 192. 
 
 "8Winship v. Pitts, 3 Paige (N. "=• Jackson v. Andrew, 18 Johns. 
 
 Y.) 259; Crockett v. Crockett, 2 (N. Y.) 431. 
 Ohio St. 180; Parrott v. Palmer, 3 
 My. & K. 632. 
 
 II
 
 737 ACTIONS RELATIVE TO POSSESSION. [§' 640 
 
 tenant in possession when the injury to the estate in reversion shall 
 be adjudged in the action to be equal to the value of the tenant's 
 estate or unexpired term, or to have been done in malice.*^" It seems 
 that under this statute a general finding in an action for waste and 
 judgment for the possession of lands is not sufficient. The court will 
 not, in the face of the statute, indulge in any presumptions as to what 
 the jury may have believed or what the evidence may have been upon 
 the subject of the injury.*^^ 
 
 In Wisconsin it has been held that, since the local statutes made 
 full regulations on the subject of waste, without providing for for- 
 feiture, there could be no forfeiture in that state on this ground, and 
 that the statute of Gloucester had not been adopted there as part of the 
 common law.*^^ 
 
 VI. Actions Relative to Possession. 
 
 § 640. The common law rule is that actual or constructive pos- 
 session is necessary to support an action of trespass quare clausum, 
 and, a tenant for a definite term being in possession, the landlord 
 has not such constructive possession as will entitle him to maintain 
 such action. The old action of trespass quare clausum fregit, as its 
 name imports, was based upon an alleged invasion of possession, and 
 in such action could be litigated only the injury to the possession, and 
 damages recovered only by the party in or entitled to the possession.'*®^ 
 So, a long line of authorities lay down the doctrine that, while land is 
 in the possession of a lessee for years, an injury to the possession, 
 which is not of a permanent character, entitles the lessee to maintain 
 an action of trespass quare clausum but does not entitle the lessor to 
 maintain such an action.*®* It has been declared to be a well-recog- 
 
 *'" Bollenbacker v. Fritts, 98 Ind. ard, 94 Ind. 319. Kentucky: Mc- 
 
 50; R. S. 1881, § 286. Closkey v. Doherty, 97 Ky. 300, 30 
 
 ""Sullivan v. O'Hara, 1 Ind. App. S. W. 649. Maine: Little v. Palister, 
 
 259, 27 N. E. 590. 3 Me. 6. Massachusetts: Geer v. 
 
 "=Phelan v. Boylan, 25 Wis. 679. Fleming, 110 Mass. 39. Missouri: 
 
 *'' Arneson v. Spawn, 2 S. D. 269, Lindenbower v. Bentley, 86 Mo. 515. 
 
 49 N. W. 1066; Hersey v. Chapin, New Hampshire: Anderson v. Nes- 
 
 162 Mass. 176, 38 N. E. 442; Bascom mith, 7 N. H. 167; Robertson v. 
 
 V. Dempsey, 143 Mass. 409, 9 N. E. George, 7 N. H. 306; Wentworth v. 
 
 744; Gooding v. Shea, 103 Mass. Portsmouth &c. Ry., 55 N. H. 540. 
 
 360; Woodman v. Francis, 14 Allen Ohio: Miller v. Fulton, 4 Ohio 433. 
 
 (Mass.) 198; Gibbons v. Billing- South Carolina: Davis v. Clancy, 3 
 
 ham, 10 Ark. 9. McCord (S. Car.) 422. Tennessee: 
 
 "^"Indiana: Boyce v. Graham, 91 McNairy v. Hicks, 3 Baxt. (Tenn.) 
 
 Ind. 420; Chicago &c. R. Co. v. Lin- 378. Texas: Reynolds v. Williams, 
 Jones L. & T.— 47
 
 § 641] EIGHTS AND LIABILITIES OF THE PARTIES. 738 
 
 nized rule that the owner himself cannot maintain trespass quare 
 clausum unless he is in possession at the time of the alleged trespass, 
 for the gist of the action is the injury to the possessory right.*^^ There- 
 fore, a landlord, out of possession, cannot maintain trespass as long 
 as the tenant is in possession.*^^ 
 
 § 641. However, a qualification of the foregoing rule permits the 
 landlord, while a tenant is in possession, to maintain trespass on the 
 case for an injury to the freehold, or, in case a statutory form of 
 action has superseded the common law writs, to maintain the statutory 
 'action corresponding to an action on the case.^®'^ If such a suit under 
 a code, by whatever name it may be called, is for a damage sustained 
 by the owner, it is properly brought by him.*^^ In Kentucky*^^ and 
 in Wisconsin*''*' an owner out of possession is, by express statute, given 
 a right to maintain an action of trespass for an injury to the freehold. 
 It is well settled that for a permanent injury to the freehold, the land- 
 lord may sue in an appropriate form of action, even though his tenant 
 be in possession of the premises.*®^ While a lessor cannot maintain an 
 action for injury to the legal rights of the lessee,*^^ \^q j^^y sue for an 
 actual damage to the reversion."*^^ 
 
 But this qualification has been said to apply only in cases where 
 there has been a trespass. So, if the injury to the freehold was un- 
 accompanied by any trespass, the owner of the reversion could not 
 
 1 Tex. 311; Railway v. Smith, 3 son v. Pesked, 1 M. & S. 234; Car- 
 
 Tex. Civ. App. 483, 23 S. W. 89. roll v. Rigney, 15 R. I. 81, 23 Atl. 
 
 Vermont: Catlin v. Hayden, 1 Vt. 46; Cannon v. Hatcher, 1 Hill (S. 
 
 375; Weston v. Gravlin, 49 Vt. 507. Car.) 260; Brown v. Bridges, 31 
 
 English: Baxter v. Taylor, 4 B. & Iowa 138; Fitch v. Gosser, 54 Mo. 
 
 Ad. 72. 267; Ridge v. Railroad Trans. Co., 
 
 ^'Chadbourne v. Straw, 22 Me. 56 Mo. App. 133; Gibbons v. Dilling- 
 
 450; Jones v. Leeman, 69 Me. 489; ham, 10 Ark. 9. 
 
 Kimball v. Hilton, 92 Me. 214, 42 *'*« Fitch v. Gosser, 54 Mo. 267. 
 
 Atl. 394. ^^"McCloskey v. Doherty, 97 Ky. 
 
 ^^''Bartlett v. Perkins, 13 Me. 87; 300, 30 S. W. 649. 
 
 Carroll v. Rigney, 15 R. I. 81, 23 «»Wis. St. 1898, § 2198. 
 
 Atl. 46. "' Parker v. Shackelford, 61 Mo. 
 
 ^"Lachman v. Deisch, 71 111. 59; 68; Austin v. Huntsville &c. Co., 72 
 
 Hersey v. Chapin, 162 Mass. 176, 38 Mo. 535, 543; Cramer v. Groseclose, 
 
 N. E. 442; Ashley v. Ashley, 4 Gray 53 Mo. App. 648; Bobb v. Syenite 
 
 (Mass.) 197; Lienow v. Richie, 8 Granite Co., 41 Mo. App. 642; Stoltz 
 
 Pick. (Mass.) 235; Davis v. Nash, v. Kretschmar, 24 Wis. 283, 285; 
 
 32 Me. 411; Lawry v. Lawry, 88 Me. Watson v. Harrigan, 112 Wis. 278, 
 
 482, 34 Atl. 273; Ray v. Ayers, 5 87 N. V/. 1079. 
 
 Duer (N. Y.) 494; Bobb v. Syenite «= Stark v. Miller, 3 Mo. 470. 
 
 Granite Co., 41 Mo. App. 642; Jack- «' Fitch v. Gosser, 54 Mo. 267.
 
 739 ACTIONS RELATIVE TO POSSESSION". [§ 642 
 
 maintain such an action against the. tort-feasor. A person entering 
 on leased premises by the consent of the tenant cannot be considered 
 a trespasser, even though he causes an injury to the reversion ; for an 
 abuse of an authority to enter upon land does not make the party en- 
 tering a trespasser.*''* On the other hand a mere license from a lessor 
 for a third person to enter on leased premises does not confer any 
 right to enter except by the consent of the lessee. If the licensee enter 
 by force he is a trespasser and the lessor is not liable for his conduct.*^^ 
 
 § 642. In determining whether the landlord or tenant or both 
 may recover damages for injury to real estate, the general rule applies 
 that wherever a legal right is violated the owner of such right is en- 
 titled to action therefor. If possession only is disturbed, the owner 
 of the right of possession may have the right of action. If the free- 
 hold, independent of and beyond its use and enjoyment by the tenant, 
 is injured, the owner of the freehold in like manner has his action. ^^"^ 
 The tenant, and not the landlord, has the exclusive right of action for 
 any injury to the possession of the rented premises; and this is true 
 whether he retains the possession or not, since it is his exclusive right 
 of possession that gives him the exclusive right of action.*^^ The pos- 
 session of a tenant is as complete for all purposes of redress against 
 wrong-doers as is the possession of an owner in fee simple.*''^ So far 
 as regards any injury to the use of the land during the term, no dis- 
 tinction exists between the rights of a tenant for years and an owner 
 in fee in possession.*''^ Where a tenant in possession of land has been 
 evicted by a stranger, he alone is entitled to bring an action to recover 
 possession.^"" A tenant in possession of premises affected by a nui- 
 sance, under a lease made during the continuance of the nuisance, can 
 maintain an action to abate it and recover damages.^"^ But an in- 
 
 494 Perry v. Bailey, 94 Me. 50, 46 *"" Grand Rapids &c. Co. v. Jarvis, 
 
 Atl. 789; Dingley v. Buffum, 57 Me. 30 Mich. 308; Heilbron v. King's 
 
 379. See also, Watson v. Harrigan, River &c. Co., 76 Cal. 11, 17 Pac. 
 
 112 Wis. 278, 87 N. W. 1079. 933. 
 
 "^McKenzie v. Hatton, 141 N. Y. ^^^ Maxwell v. Jones, 90 N. Car. 
 
 6, 35 N. E. 929. 324. 
 
 «^ Arneson v. Spawn, 2 S. D. 269, '"' Bly v. Edison &c. Co., 172 N. Y. 
 
 49 N. W. 1066; George v. Fisk, 32 1, 64 N. E. 745, reversing 54 App. 
 
 N. H. 32; Bannon v. Mitchell, 6 111. Div. 427; Lockett v. Fort Worth 
 
 App. 17. &c. R. Co., 78 Tex. 211, 14 S. W. 
 
 '"Walden v. Conn, 84 Ky. 312, 1 564; Walker v. Walker, 51 Ga. 22; 
 
 S. W. 537. Central Ry. v. English, 73 Ga. 366; 
 
 *^^ Strohlburg v. Jones, 78 Cal. Rabaud v. Frank, 7 Mo. App. 64. 
 381, 20 Pac. 705.
 
 § 643] EIGHTS AND LIABILITIES OF THE PARTIES. 740 
 
 itmction to restrain a nuisance is granted only where the right to be 
 protected is a permanent one, or where its enjoyment has been of long 
 duration.^*^^ The interest of a tenant from month to month is not 
 such a right, although he may have been long in the enjoyment of the 
 premises by such a tenure.^"^ However, it has been held that a 
 tenant of an upper story was entitled to a perpetual injunction 
 against the tenant of the floor below, restraining him from inter- 
 fering with the common passageways in the building.^"* A ten- 
 ant may also recover from a third person for a tortious interference 
 with the business conducted on the premises. ^''^ Under a statute pro- 
 viding that "the jury shall assess the entire amount of damages which 
 the party aggrieved is entitled to recover," it has been held that a 
 lessee may sue for injuries to his leasehold without making the lessor 
 a party. The words "party aggrieved" refer only to the plaintiff in the 
 action. The object of the law is to prevent a multiplicity of suits by 
 him, and not to deprive him of his lawful remedy, or to render a re- 
 sort thereto both difficult and hazardous. If the tenant suffered sub- 
 stantial damages to his crops and to his leasehold, he should not be 
 compelled to make every one a party to the action who may have 
 some vested or contingent interest in the fee, when his claim is in no 
 way adverse to them. The landlord and tenant may bring separate 
 actions for injuries to their respective interests.^"" 
 
 Title in fee in the lessor is not necessary to sustain a lease against 
 trespassers; it is sufficient to show bona fide possession on his part 
 under a claim of right.^"'' 
 
 § 643. If a tenant be deprived of his leasehold interest in conse- 
 quence of the appropriation by the public to public uses of the 
 
 property upon which his leasehold estate rests, it cannot be doubted 
 that he is deprived of his property. Therefore, the holder of a lease 
 has such an interest in premises as will enable him to maintain an 
 action for damages resulting to his leasehold estate, sustained in con- 
 sequence of the construction of a duly authorized public improvement 
 whether such damage results from the negligence of the municipal 
 
 502 Yan Bergen v. Van Bergen, 3 ^"^ Brunswick &c. Ry. Co. v. Har- 
 
 Johns. Ch. (N. Y.) 282; Porter v. dey, 112 Ga. 604, 37 S. E. 888. 
 
 Witham, 17 Me. 292; Jordan v. =»« Dale v. Southern R. Co., 132 N. 
 
 Woodward, 38 Me. 423. Car. 705, 44 S. E. 399; Williams v. 
 
 «» Clarke v. Thatcher, 9 Mo. App. Canal Co., 130 N. Car. 746, 41 S. E. 
 
 436. 1030. 
 
 ™^ Miller v. Fitzgerald &c. Co., 62 =»^ Kellogg v. King, 114 Cal. 378, 
 
 Neb. 270, 86 N. W. 1078. 46 Pac. 166.
 
 741 ACTIONS RELATIVE TO POSSESSION. [§ 644 
 
 authorities or otherwise/'"* The measure of the damages is the injury 
 to the leasehokl property which is injuriously affected by the public 
 improvement; in arriving at that damage, neither the profits in the 
 business conducted on the premises, nor the cost to the tenant of the 
 fixtures and improvements placed therein, nor the articles purchased 
 for the purpose of enabling the lessee to conduct the business, nor 
 diminution in the value of fixtures, improvements, or articles such as 
 are removed by the lessee, can be recovered as damages. But the in- 
 creased value of the premises for rent in consequence of the putting 
 in of such fixtures and improvements may properly be considered in 
 computing the damages to the leasehold estate. The tenant cannot 
 prove that he had an option upon the premises for a longer term of 
 years, if such option was not to be exercised at his will alone but was 
 dependent upon the concurrence of the landlord.^"^ 
 
 § 644. According to common law rules of pleading, not only must 
 the fact that the plaintiff is a reversioner appear, but the extent of 
 the reversion, whether it is for years or for life or in fee ; and it must 
 be furthermore specifically alleged, according to the old practice that 
 the injury to was to the revision.^^" But, according to later cases 
 arising after the rules of pleading had been relaxed, it was declared 
 that no advantage would be gained by requiring the complaint to state 
 formally and explicitly that the reversion was injured, when the facts 
 pleaded as the cause of action are of such a nature as necessarily to 
 work such injury. Where a complaint shows a permanent and sub- 
 stantial injury to the freehold itself, for which an owner asks dam- 
 ages, a court cannot say that the action is for injury to the posses- 
 sion merely, and so cannot be maintained by an owner out of posses- 
 sion.^^^ However, a plaintiff's right being in reversion, he is bound 
 to show, in order to maintain his action, an invasion of this right. 
 For an injury to the possesion, the tenant only has his remedy; for 
 an injury to the reversion, the right of action is in the owner. It is 
 essential that this distinction should be called to the attention of the 
 jury, because injuries to the reversion are hard to estimate and great 
 caution is always to be taken that the fact of damage to such interest 
 is clearly established.^^' Cutting trees and carrying away the timber 
 
 ""Pause V. City of Atlanta, 98 Ga. '^^lArneson v. Spawn, 2 S. D. 269, 
 
 92, 26 S. E. 489; Bentley v. City of 49 N. W. 1066; Beavers v. Trimmer, 
 
 Atlanta, 92 Ga. 623, 18 S. E. 1013. 25 N. J. L. 97. 
 
 5»» Pause V. City of Atlanta, 98 Ga. ''- Hastings v. Livermore, 7 Gray 
 
 92, 26 S, E. 489. (Mass.) 194. 
 
 ""Davis V. Jewett, 13 N. H. 88.
 
 § 644] RIGHTS AXD LIABILITIES OF THE PARTIES. 743 
 
 made from tliem would clearly be an injury to the reversion for which 
 an action would lie;^^^ but the cutting up of a lawn by driving coal 
 teams over it was not damage of so substantial and permanent a char- 
 acter as to justify a finding that it was an injury to the inheritance.^^* 
 The owtier of the reversion may maintain an action against a stranger 
 to recover damages for breaking and entering the premises, and re- 
 moving a blind and breaking a pane of glass.^^^ However a lessor 
 has no right of action against a third person for use and occupation for 
 a portion of the leased premises during the time the lessee was en- 
 titled to possession. If there has been no injury to the freehold, the 
 right of action against such an occupant is in the lessee.^^^ Further- 
 more, a lessor could not enjoin a third person from interfering with 
 the lessee's enjoyment of the premises or with an easement connected 
 with them. The right of action for such interference would be in the 
 lessee, as he was the only person who was injured by it.^" In further- 
 ance of this principle it has been declared that the wrongful ouster 
 of a tenant by a stranger is not of itself a legal ground of recovery by 
 the landlord. To authorize recovery by him it must appear that he 
 has sustained a loss of his rents or that he has sustained damages in 
 the destruction of the premises or in the dilapidation of them, injuri- 
 ous to the reversion.^ ^^ Whether diverting water from leased prem- 
 ises is an injury to the inheritance depends on circumstances. By 
 the diversion of water from a mill while it was under lease, the les- 
 sees were the sufferers not the lessor. If the rent is paid without 
 diminution, the lessor has no cause of complaint.^^^ On the other 
 hand the water of a natural stream cannot be taken away from land 
 for a great number of years and then turned back, without a per- 
 manent injury to the land. The right to use water flowing over land 
 is identified with the realty and is a real and corporeal hereditament. 
 On this ground it has been held that a reversioner may maintain an 
 action for interfering with natural water, although the land be in the 
 actual possession of a tenant for years, ^^*' The converse is true that 
 flowing land may be an injury to the reversion.^^^ 
 
 "^Gulf &c. R. Co. V. Settegast, 79 Ga. 222, 42 S. E. 498; Walker v. 
 
 Tex. 256, 15 S. W. 228. Clifford, 128 Ala. 67, 29 So. 67. 
 
 "* Watson v. Harrigan, 112 Wis. "' Walden v. Conn, 84 Ky. 312, 1 
 
 278, 87 N. W. 1079. S. W. 537. 
 
 ^'''Cushing v. Kenfield, 5 Allen ""Moody v. King, 74 Me. 497. 
 
 (Mass.) 307; Ridge v. Railroad "" Heilbron v. Last Chance &c. 
 
 Trans. Co., 56 Mo. App. 133. Co., 75 Cal. 117, 17 Pac. 65: Cary v. 
 
 "° Southern R. Co. v. Georgia, 116 Daniels, 5 Mete. (Mass.) 236; Hart 
 
 Ga. 276, 42 S. E. 508. v. Evans, 8 Pa. St. 13. 
 
 °" Coney v. Brunswick &c. Co., 116 "'Noyes v. Stillman, 24 Conn. 15.
 
 743 ACTIONS RELATIVE TO POSSESSION, [§ 64:5 
 
 The true rule of damages in an action on the case, brought by a re- 
 versioner on account of an injury done to the premises, is the amount 
 of the injury done to the estate in reversion.^^^ 
 
 § 645. A landlord has no such interest in the growing crops of his 
 tenant as to enable him to maintain an action against a person who 
 injures the crop.^^^ This is true, even though it is provided by 
 statute that crops shall be deemed to be vested in the landlord, for 
 that is only to protect the landlord in respect to the collection of his 
 rent.^^* In a suit brought for damages to a growing crop, a tenant, 
 who is to pay one-third of the crop as rent, is nevertheless entitled to 
 recover all the damages and not merely a proportionate share to his 
 ultimate interest.^^^ After a landlord had recovered damages for the 
 condemnation of land for a right of way for a railway, the tenant was 
 allowed to recover damages for injury to the crop raised on the shares 
 caused by the negligent pulling down of fences. In the case where 
 this decision was made the tenant had agreed to be responsible to the 
 landlord for all injury to the crop.^^^ On the other hand, it has been 
 held that a landlord entitled by the terms of the lease to a share of the 
 crop as rent may maintain an action for damage to the crop; and if 
 no objection is made for non-joinder of the tenant as co-plaintiff, he 
 may sue alone and his recovery will be apportioned according to his 
 interest in the crop.^^'^ The conflicting results reached in the two 
 preceding cases can be explained on the ground that in the latter, the 
 court considered the landlord and tenant as tenants in common of the 
 crop,. while in the former the tenant was the owner and the landlord 
 merely entitled to a lien. This distinction is made in Illinois, the law 
 in that state being that, where a tenant leases premises, the rent to be 
 paid by part of the crop, when matured, and a wrong-doer injures or 
 destroys the crops, whereby the landlord is prevented from receiving 
 his rents as he otherwise might, he may have his action therefor.^-^ 
 But where the crops are to be marketed by the tenant and the proceeds 
 divided among the parties, an allegation of ownership of the crop by 
 
 ^'^ Dutro V. Wilson, 4 Ohio St. 101. =^ Texas &c. R. Co. v. Bayliss, 62 
 
 ^-' St. Louis &c. R. Co. V, Trigg, 63 Tex. 570. 
 
 Ark. 536, 40 S. W. 579; Drake v. "'L. St. L. & T. R. Co. v. Barrett, 
 
 Chicago &c. R. Co., 70 Iowa 59, 29 13 Ky. L. R. 232. 
 
 N. W. 804; Townsend v. Isenberger, °^Van Hoozier v. Hannibal &c. 
 
 45 Iowa 670; Kentucky &c. R. Co. R. Co., 70 Mo. 145; Johnson v, Hoff- 
 
 V. Higgins, 9 Ky. L. R. 649. man, 53 Mo. 504. 
 
 ■'^ Bridgers v. Dill, 97 N. Car. 222, ^"^ Ohio &c. R. Co. v. Singletary, 
 
 1 S. E. 767. 34 111. App. 425; Younggreen v. 
 
 Shelton, 101 111. App. 89.
 
 § 646] EIGHTS AND LIABILITIES OF THE PARTIES. 74-i 
 
 the landlord is not sustained by the proof and the landlord could not 
 therefore maintain his action.^ ^'^ 
 
 Where fruit trees on leased premises were damaged by third persons, 
 the landlord was held to be entitled to sue for injury to the trees and 
 the tenant for injury to the fruit.^^" 
 
 § 646. Tenants at will and by sufferance. — Wliere grass upon the 
 land in possession of a tenant at will was burned by the negligence of 
 an adjoining owner, it was held that no right of action for such burn- 
 ing accrued to the tenant but that the lessor was entitled to sue.^^^ 
 But the rights of a lessor at will to maintain trespass against a 
 stranger for entering upon an estate have been altered by the statutes 
 requiring notice to terminate such estates. . Since this change in the 
 law, the possession of a tenant at will before notice, and for three 
 months after, can in no sense be held to be the possession of the land- 
 lord. The tenant has not only the possession but the right to posses- 
 sion, and in this respect, he stands on the same footing as a tenant for 
 a term certain.^^^ Still a mere tenant at sufferance cannot generally 
 recover for an injury to the premises, for he could only recover for 
 the injury to his possessory right and he held only on the forbearance 
 of the legal owner. The doctrine that proof of possession alone is 
 sufficient to maintain an action of trespass against a wrong-doer, is 
 founded on the fact that possession is prima facie evidence of title. 
 But if the title be in another, the right of the possessor to recover is 
 limited to the amount of damage to the possessory interest; if the 
 damage be beyond this, and to the freehold, the possessor or tenant at 
 sufferance cannot maintain an action for its recovery .^^^ The intention 
 of the parties is the test whether sufficient possession is transferred by 
 the letting of pasture rights to enable the lessee to maintain a posses- 
 sory action in regard to the premises. This intention is to be gathered 
 from what was said at the time of letting, from the situation and con- 
 dition of the land itself, as whether it was capable of any other use 
 consistent with the right of the tenant. The meaning of such a rent- 
 ing might also be controlled by the custom of the country, if there 
 was any on the subject.^^* 
 
 Where the owner of a building leases at will the rooms therein, 
 
 =''Ohio &c. R. Co. v. Singletary, "= French v. Fuller, 23 Pick. 
 
 34 111. App. 425. (Mass.) 104. 
 
 ^'^ Bedingfield v. Onslow, 3 Lev. =" International &c. R. Co. v. 
 
 209. Ragsdale, 67 Tex. 24, 2 S. W. 515. 
 
 =^'Gulf &c. R. Co. V. Cusenberry, ^^Noyes v. Stillman, 24 Conn. 15. 
 86 Tex. 525, 26 S. W. 43.
 
 '^45 ACTIONS RELATIVE TO POSSESSION. [§ 647 
 
 though they constitute the chief parts of the building, such owner is 
 not thereby put out of possession, so as to preclude him from suing 
 in trespass for the destruction of the building.^^^ 
 
 § 647. An action of trespass by the landlord will not lie against 
 a tenant pending the term, because the wrong which is the gist of the 
 action is an offense against the actual possession and right of posses- 
 sion, and these are in the tenant.^^" The same reasons, which pre- 
 clude a landlord from bringing trespass against his tenant, entitle the 
 tenant to sue in trespass for a wrongful entry by the landlord; and 
 this right has been held to subsist under a lease reserving to the lessor 
 the right to sell or use for building where the landlord entered for 
 purposes other than the two specified.^" It was laid down in a very 
 ancient case that a tenant for years could maintain trespass even 
 against his landlord."^ The contrary is true of a tenant at sufferance 
 or strictly at will where such a holding is determined by the entry of 
 the landlord.^^'* But the statutes requiring notice to end a tenancy at 
 will have changed this rule and it is not now competent for a landlord 
 to enter upon the premises, without the notice to quit provided by 
 those statutes. The consequence is that, until the time set by the no- 
 tice has arrived, the lessee at will has a lawful and exclusive posses- 
 sion, not only as against a stranger, but also against the lessor at 
 will.5*« 
 
 In regard to the remedy in equity of a tenant to prevent his land- 
 lord from intruding on his possession, it has been held that he cannot 
 maintain a bill in equity to enjoin mere trespassing. Although there 
 is a breach of the covenant for quiet enjoyment in such case, an ac- 
 tion at law for breach of the covenant would furnish the tenant ade- 
 quate relief. It is a universal rule that an injunction will not be 
 granted to restrain a trespasser merely because he is a trespasser. 
 The foundation for the exercise of the jurisdiction of a court of equity 
 in the restraining of threatened trespasses rests on the inadequacy of 
 legal remedies to compensate for probable injuries which may result 
 
 ^^ Curtiss v. Hoyt, 19 Conn. 154. Y.) 150; Harper v. Charlesworth, 
 
 ^'^ Brooks V. Rogers, 101 Ala. Ill, 4 B. & C. 574. 
 
 13 So. 386. =" Dickinson v. Goodspeed, 8 Cush. 
 
 ""Bryant v. Sparrow, 62 Me. 546. (Mass.) 119; Hilbourn v. Fogg, 99 
 
 ^^'Pomfret v. Ricroft, 1 Saund. Mass. 11; Cunningham v. Horton, 
 
 322, n. 5. 57 Me. 420. See Gunsolus v. 
 
 "^^ Hyatt V. Wood, 4 Johns. (N. Lormer, 54 Wis. 630, 12 N. W. 62.
 
 §• 647] EIGHTS AISTD LIABILITIES OP THE PARTIES. 746 
 
 if the commission of the trespass is not restrained.^" Applying the 
 same principle to a different state of facts it was held that the owner 
 of a building could not enjoin a tenant of rooms in it, from placing 
 on the building a sign to indicate his business, there being no stipula- 
 tion as to signs in the lease. If the owner were injured by the sign, 
 he had an adequate remedy at law.^*^ 
 
 "1 Deegan v. Neville, 127 Ala. 471, "^ Goodell v. Lassen, 69 111. 145. 
 29 So. 173. 
 
 
 
 ,4 1
 
 CHAPTEE IX. 
 
 EENT AND ITS RECOVERY. 
 
 1. Nature of Rent, §§ 648-649. 
 
 2. Actions to Recover Rent, §§ 650- 
 
 666. 
 
 3. Apportionment, §§ 667-671. 
 
 4. Set-off and Recoupment, §§ 672- 
 
 674. 
 
 5. Abatement of Rent, §§ 675-681. 
 
 I. Nature of Rent. 
 
 § 648. Rent has been defined generally to be a return or compen- 
 sation for the possession of some corporeal inheritance ; to be a certain 
 profit, either in money, provisions or labor issuing out of lands and 
 tenements, in return for their use. It may be more specifically de- 
 fined as the compensation, either in money, provisions, chattels, or 
 labor, received by the owner of the soil from the occupant thereof.^ 
 Eent is said to be a certain yearly profit arising out of lands and tene- 
 ments as a compensation for the use thereof and therefore is properly 
 termed an income.^ In a technical definition it has been declared 
 that rent is a right to a certain profit issuing annually (or rather 
 periodically), out of lands and tenements corporeal in retribution 
 {reditus), for the land that passes. Thus the qualities of a rent ac- 
 cording to this definition are (1) a right to a certain profit; (2) issu- 
 ing periodically; (3) out of lands and tenements corporeal; (4) in 
 retribution or return; (5) for the land that passes.^ Eent is the 
 recompense for the use and occupation of lands ; and it signifies noth- 
 ing how or when that recompense may be rendered or received. Its 
 essential characteristic as rent is that it is a recompense for the use 
 and occupancy of land.* Eent is for the use of land only,^ and if per- 
 sonal chattels are leased with the land, the rent issues out of the land 
 only.^ There are at common law three manners of rents, rent-service, 
 rent-charge and rent-seek. Eent-service is so called because it has 
 
 ^Bouvier's Law Diet., Rawle's Re- 
 vision. 
 
 = State V. McBride, 5 Neb. 102. 
 
 ' 2 Min. Inst. 32. 
 
 *Constantine v. Wake, 31 N. Y. 
 Super. Ct. 239. 
 
 '^ Commonwealth v. Contner, 18 
 Pa. St. 439. 
 
 «Fay V. Holloran, 35 Barb. (N. 
 Y.) 295; Armstrong v. Cummings, 
 58 How. Pr. (N. Y.) 331. 
 
 747
 
 § 6-i9j EENT AXD ITS RECOVERY. 748 
 
 some corporeal service incident to it, as at the least fealty or the 
 feudal oath of fidelity. A rent-charge is where the owTier of the rent 
 has no future interest, or reversion expectant in the land; as where 
 a man deeds his whole estate in fee simple, but with a certain rent 
 payable, and adds to the deed a covenant or clause of distress. The 
 land is liable to the distress, not of common right, but by virtue of the 
 clause in the deed ; and therefore it is called a rent-charge, because of 
 the manner the land is charged with a distress for the payment of it. 
 Eent-seck, redvtus siccus, or barren rent, is in effect nothing more 
 than a rent reserved by deed, but without any clause of distress. These 
 are the general divisions of rents, but the difference between them (in 
 respect to the remedy for recovering them) has long ago been abol- 
 ished; so that, in the time of Blackstone, all persons could have the 
 like remedy by distress for rent-seek, rents of assize, and chief rents, 
 as in case of rents reserved in a lease.'^ 
 
 Rent not due passes with the estate, for, until it is due, it is not a 
 chose in action and the grantor of land is not assignor of the rent as 
 a chose in action.* A stipulation in a lease that the rent shall be ap- 
 plied to a specified purpose does not change its character of rent.** 
 Yet rent, at common law, is incident to the reversion, and cannot be 
 reserved to a stranger, and though, by the terms of the lease, the lessee 
 covenants to pay rent not to the lessor but to a third party, the sum 
 so covenanted to be paid, is not properly a rent. It is not payable 
 upon the land as rent is, nor can it be recovered by action or distress, 
 for there is neither privity of contract nor privity of estate between 
 the parties,^" 
 
 § 649. A fee farm rent arises where the rent is created by deed 
 
 and the fee is granted. Lord Coke says that since the statute of 
 Quia emptores terrarum there could be no fee farm rent in England 
 on a feoffment in fee, as the purchaser would now hold not of his im- 
 mediate feoffer, but of the chief lord of the fee." It seems, however, 
 
 ^2 Bl. Com. 41. "But in such case, where a man, 
 
 «Van Wicklen v. Paulson, 14 upon such a gift or lease, will re- 
 Barb. (N. Y.) 654. serve to him a rent service, it be- 
 
 '•' Ryerson v. Quackenbush, 26 N. hoveth, that the reversion of the 
 
 J. L. 236. lands and tenements be in the donor 
 
 ^"Littleton, §§ 345, 346; Co. Litt. or lessor. For if a man will make 
 
 213a, b, 143b; 2 Bl. Com. 41; Gates a feoffment in fee, or will give 
 
 V. Frith, Hobart 130a; 3 Kent's lands in taile, the remainder over 
 
 Com. 463; Ryerson v. Quackenbush, in fee simple, without deed, reserv- 
 
 26 N. J. L. 236. ing to him a certain rent, this res- 
 
 "Coke, Book II, ch. 12, § 215. ervation is void, for that no rever-
 
 749 NATURE OF EEXT. [§ 649 
 
 that such reservation in a deed, accompanied by a power of distress 
 and reentry on non-payment, might make a good rent charge; and if 
 there is no such clause in the deed giving a right of distress, then 
 such rent is rent-seek, because the grantor cannot enforce payment of 
 rent by distress, and if he has never been seized of the rent, he is 
 without any remedy at all.^- In a case arising in 1852 before the 
 Supreme Court of Missouri, it was declared that such reservations 
 were upheld in the United States and text-books were cited to sustain 
 this position. In the deed creating the rent in the Missouri case, there 
 was a right of entry reserved in case of default in payment of rent 
 for six months.^ ^ It was argued against the validity of a reservation 
 of rent in an estate in fee with a condition for reentry in case of non- 
 payment, that it was repugnant to the nature of the estate and a re- 
 straint on alienation. But the court pointed out that grants of es- 
 tates in fee on condition have constantly been upheld and writers 
 have always assumed the legality of such conditions. A condition an- 
 nexed to a conveyance in fee, that the grantee, his heirs and assigns 
 shall pay to the grantor and his heirs an annual rent, and that, in de- 
 fault of payment, the grantor or his heirs may reenter, is a lawful 
 condition. Littleton puts it as an example of a condition in a deed, 
 at the commencement of that part of his treatise which relates to es- 
 tates on condition.^* The systematic writers upon the law of real 
 property, from that time to the present, have assumed the legality of 
 such conditions.^^ 
 
 Furthermore it has been declared that the rent reserved in a lease 
 in fee, if not strictly an estate in the land, is nevertheless a heredita- 
 ment, and is descendible and inheritable. The covenant to pay rent 
 runs with the land and the assignees of the grantee or covenantor in 
 such a lease are liable on the covenant to pay rent; nor is there any 
 reason for distinguishing between the assigns of the covenantor and 
 the assigns of the covenantee, in regard to the rights and obligations 
 of such covenants.^^ 
 
 sion remains in the donor, and such Michael, 6 N. Y. 467. In the prin- 
 tenant holds his land immediately cipal case it was further held that 
 of the lord, of whom his donor a statute authorizing the assign- 
 held." ment of such rights of reentry was 
 
 '=Coke, Book II, ch. 12, § 217. valid. 
 
 "Alexander v. Warrance, 17 Mo. ''^ 2 Bl. Coin. 154; Cruise Dig., 
 
 228. Citing 1 Hilliard on Real Vol. II, ch. 1, § 1, pi. 3, 9; 4 Kent 
 
 Property, 4th ed., p. 314; 1 Tucker Com. 123. 
 
 15, 16. ^^ Tyler v. Heidorn, 46 Barb. (N. 
 
 "Van Rensselaer v. Ball, 19 N. Y. Y.) 439. 
 100, distinguishing De Peyster v.
 
 § 650] HEXT AND ITS KECOVERY. 750 
 
 II. Actions to Recover Rent. 
 
 §' 650. Remedies for recovering rent. — According to the practice 
 of the ancient common law the most effective means of recovering rent 
 was by distress. It is laid down that this remedy for the recovery of 
 rent was derived from the civil law; for anciently in the feudal law 
 the tenant's neglect to perform his duties caused a forfeiture of the 
 estate ; but the feudal forfeitures were afterward turned into distresses. 
 A distress is the taking of a personal chattel out of the possession of 
 a wrong-doer into the custody of the person injured to procure a satis- 
 faction for the wrong committed. To entitle a party to distrain for 
 rent, there must be an actual demise, or a. contract for a demise 
 amounting to as much, and a fixed rent agreed upon.^^ In the New 
 England States the right of distress for rent does not exist, being 
 superseded by the practice of attachment on mesne process ;^^ and in 
 many other States of the Union, this right has been abolished and 
 other remedies substituted in its stead, or the same nomenclature has 
 been retained and the mode of procedure regulated by statute.^" 
 
 Of the actions at law to recover rent, debt for rent was at all times 
 maintainable whether the demise was by deed, or by writing not under 
 seal, or by word of mouth, both of the latter being included in the 
 common expression "parol demises."^^ But no instance is to be found 
 among the older cases of an action of debt for a reasonable remuner- 
 ation for the occupation of land, which can be accounted for on the 
 ground that the occupation of land, without an agreement to pay a 
 fixed sum for it, is of rare occurrence." So that the better view is 
 that debt for use and occupation would lie at common law and is not 
 defeated by proof of a parol demise reserving a certain rent. Accord- 
 ing to the accepted English view, the statute of 11 Geo. II, ch. 19, 
 sec. 14, applied only to actions of assumpsit for use and occupation 
 and its effect was to extend this form of action, which could formerly 
 be brought only where no definite sum was due as rent, to cases where 
 
 "3 Bl. Com. 6. certain, if the amount is so stipu- 
 
 ^M Dane's Abr. 126; Aik. Dig. lated as to malie it capable of ascer- 
 
 357; Wait, Ex parte, 7 Picli. (Mass.) tainment by calculation. Brooks v. 
 
 100, 105. Cunningham, 49 Miss. 108. 
 
 "The Remedy by Distress and '"Gibson v. Kirk, 1 Q. B. 850, 41 
 
 the Enforcement of Liens has been E. C. L. 807; Trapnall v. Merrick, 
 
 stated in the author's work on 21 Ark. 503. 
 
 Liens, Vol. I, § 596, et seq. In Mis- =" Egler v. Marsden, 5 Taunt. 25; 
 
 sissippi distress for rent will lie Wilkinson v. Hall, 3 Bing. N. C. 
 
 where produce is agreed to be paid, 508. 
 
 though the value is not fixed and 
 
 *
 
 751 ACTIONS TO RECOVER RENT. [§ 650 
 
 a fixed amount of rent was reserved by the contract. The statute pre- 
 vented a defendant from defeating recovery by showing a contract for 
 a definite sum as rent, as he could have done before its passage.^^ 
 
 In the opinion of some Judges in this country it has been declared 
 that, at common law, assumpsit for use and occupation could not be 
 maintained, and had its existence in the statute 11 Geo. II, ch. 19, 
 sec. 14.^^ Yet by the better view the right of action by assumpsit for 
 use and occupation, did exist prior to 11 Geo. II, as a common-law 
 remedy. Judge Tucker, in the case of Epps v. Cole,^'^ controverts the 
 correctness of the contrary declaration and traces the action as far 
 back as James I, and again reaffirms his opinion in the case of Sutton 
 v. Mandeville.^^ Kentucky and Connecticut, mainly on the research 
 and opinion of this learned judge, have also held that assumpsit for 
 use and occupation was a common-law remedy. In the Virginia case 
 first referred to- the court says : "The action, for use and occupation 
 was not given by the statute of George ; it has been used at least from 
 the time of James the first as the case of Dartual v. Morgan-^ clearly 
 proves; and the case of How v. Norton^'' shows it in use in the time of 
 his son, Charles II, and a variety of other cases might be shown to 
 prove the same thing. ^' 
 
 In the United States the action of assumpsit for use and occupation 
 or some code proceeding of a similar nature is generally recognized 
 as the proper method to recover rent under certain circumstances, and 
 the English statute, in relation to such action, has either been ex- 
 pressly reenacted or adopted as a part of the common law. In North 
 Carolina, in 1849, the statute of 11 Geo. II was held to be not in force 
 and therefore an action of use and occupation would not lie against 
 an intending purchaser who had been let into possession, occupied for 
 a while, and then failed to carry out the contract of purchase f^ but 
 this rule has been changed by statute since then and an assumpsit 
 could now be maintained under similar circumstances.-^ 
 
 2^ Gibson v. Kirk, 1 Q. B. 850, 41 Johnson v. May, 3 Lev. 150, Bull. 
 
 E. C. L. 807. The common count N. P. 138. See Lankford v. Green, 
 
 in debt for use and occupation is 52 Ala. 103. 
 good, though the holding be under "M H. & M. (Va.) 167. 
 a written lease, and in such count "° 1 Munf. (Va.) 407. 
 it is not necessary to allege the ^'^ Cro. Jac. 598. 
 character in which the plaintiff "1 Lev. 179. 
 
 sues, whether as assignee of the =^ Long v. Bonner, 11 Ired. L. (N. 
 
 reversion or otherwise. Armstrong Car.) 27. 
 v. Clark, 17 Ohio 495. '" Such an action will now lie — 
 
 =' Fitzgerald v. Beebe, 7 Ark. 305; see Rev. Code, ch. 63, § 2. 
 Byrd v. Chase, 10 Ark. 602, citing
 
 § 651] RENT AND ITS RECOVERY. 752 
 
 Covenant and debt frequently cover the same causes of action; it 
 is said that covenant is a remedy for the recovery of damages for the 
 breach of a contract under seal ; while debt lies whenever the demand 
 is for a sum certain, or is capable of being readily reduced to a cer- 
 tainty. Where there is a contract under seal for the payment of a 
 specific sum of money, the distinction between these forms of action 
 may be considered as pvirely technical ; covenant and debt being con- 
 current remedies for the recovery of any money demand, where there 
 is an express or implied contract in an instrument under seal to pay 
 it.^'* If the lessee assign the term, with the assent of the lessor, after 
 this, debt does not lie against the lessee,^^ but after a third person has 
 received the Avhole term by assignment, both debt and covenant will 
 lie against such assignee on the privity of estate.^ ^ 
 
 § 651. The statutory action for use and occupation is of the 
 nature of assumpsit at common law on an implied promise and is not 
 an action ex delicto. It is therefore subject to a constitutional ex- 
 emption as a debt by contract."" The action for use and occupation 
 of lands is one arising upon contract and rests on the agreement to 
 pay rent, express or implied."* The action for mesne profits difi:ers 
 from an action for use and occupation in this, that the latter is 
 founded upon a promise, express or implied, while the former springs 
 from a trespass, an entry, vi et armis, upon premises and a tortious 
 holding. The action to recover mesne profits being trespass quare 
 clausum fregit cannot be maintained without proof of the trespass. 
 And a petition which, stating the defendants were in possession of the 
 land at the time the suit was brought, fails to state a cause of action 
 for trespass for mesne rents and profits.^'' But in the ordinary case 
 where the occupation of land is without the owner's consent, his rem- 
 edy against the occupant is trespass quare clausum fregit; if with con- 
 sent, the proper remedy is an action for use and occupation.^^ 
 
 ^oQuttoun v. Dulin, 72 Md. 536, «' St. Louis &c. R. Co. v. Hart, 38 
 
 20 Atl. 134; 1 Chitty Pleading AvVi. 112. 
 
 (16th Am. ed.), star page 121, 131, '^ Dalton v. Laudahn, 30 Micti. 
 
 132. 349. 
 
 "Dartmouth College v. Clough, 8 ^Thompson v. Bower, 60 Barb. 
 
 N. H. 22; Auriol v. Mills, 4 Term R. (N. Y.) 463, 477, per Johnson, J.; 
 
 94, 98; 1 Saunders 241, n. 5; 1 Young v. Downey, 145 Mo. 261, 46 
 
 Chitty Plead. 106. S. W. 962; Peters v. Elkins, 14 Ohio 
 
 ''Dartmouth College v. Clough, 8 344. 
 
 N. H. 22; Rowland v. Coffin, 12 Pick. =<= Anderson v. Critcher, 11 Gill & 
 
 (Mass.) 125. J. (Md.) 450; Espy v. Fenton, 5 
 
 Ore. 423.
 
 753 ACTIONS TO RECOVER RENT. [§■ 651 
 
 For a trespass itself in taking a thing, or for the enjoyment of it 
 by the trespasser, assumpsit will not lie, as no contract, express or im- 
 plied, exists between the parties. So, with respect to land, if the tres- 
 passer let it and receive rents, he might be liable for them as money 
 had and received to the use of the owner. But for the injury of il- 
 legally entering upon the land of another, and keeping him out, the 
 remedy is by action of trespass for the mesne profits after the owner 
 regains the possession. No action ex contractu lies, as there is nothing 
 from which a contract can be implied.^^ A person put in as tenant 
 by an adverse claimant in possession of land cannot be sued by the 
 true owner in use and occupation, even though he had notice that his 
 lessor's title was in dispute.^® Privity of contract between the parties 
 is indispensable to the maintenance of this action. A trespasser can- 
 not be converted into a tenant without his consent. The theory of 
 waiving a tortious entry and occupation and suing on an implied con- 
 tract to pay for use and occupation does not apply to- this kind of 
 case.^" An action ex contractu has sometimes been maintained against 
 a mere trespasser ; but these are cases where the avails of the trespass 
 or occupation, as money had and received to the plaintiff's use, and 
 not the trespass or occu]3ation itself is the gist of the action. In such 
 cases, a party may waive the tort, and sue in assumpsit for money had 
 and received.'*" 
 
 The amount of recovery in an action for use and occupation would 
 be the fair rental value of the property,*^ and, if it was held on an 
 
 "Long V. Bonner, 11 Ired. L, (N. demise in the ejectment suit is laid. 
 
 Car.) 27; Butler v. Cowles, 4 Ohio but not after that. To recover 
 
 205. profits subsequently accruing tres- 
 
 ^ Hardy v. Williams, 9 Ired. L. pass for mesne profits must be 
 
 (N. Car.) 177; Lankford v. Green, brought. Sinnard v. McBride, 3 
 
 52 Ala. 103; Kieth v. Paulk, 55 Iowa Ohio 264. 
 
 260, 7 N. W. 588; Roxbury v. Hus- " Lindon v. Hooper, Cowp. 414, 
 
 ton, 39 Me. 312. 419, per Lord Mansfield; Scales v. 
 
 ^' Hurley v. Lamoreau, 29 Minn. Anderson, 26 Miss. 94. Assumpsit 
 
 138, 12 N. W. 447; Edmonson v. for use and occupation will not lie 
 
 Kite, 43 Mo. 176; Peters v. Elkins, at the suit of a purchaser of mort- 
 
 14 Ohio 344; Richey v. Hinde, 6 gaged premises, sold under decree 
 
 Ohio 371; Rogers v. Libbey, 35 Me. against a tenant in possession un- 
 
 200; Richardson v. Richardson, 72 der the mortgage. The proper 
 
 Me. 403; Munroe v. Luke, 1 Mete, remedy would be trespass for mesne 
 
 (Mass.) 459, 464. See also, Espy v. profits. Peters v. Elkins, 14 Ohio 
 
 Fenton, 5 Ore. 423. "Where one en- 344. 
 
 ters adversely upon land assumpsit " Cohoon v. Kineon, 46 Ohio St. 
 
 for mesne profits may be main- 590, 22 N. E. 722; Shiner v. Abbey, 
 
 tained up to the time when the 77 Tex. 1, 13 S. W. 613. 
 Jones L. & T.— 48
 
 652] 
 
 RENT AXD ITS EECOVEEY. 
 
 '51 
 
 uncertain tenure, would cover only the time of actual occupation. 
 Evidence of the value of the estate for sale is not competent as bearing 
 upon the question of rental value.*^ If the holding has been under a 
 void lease, the writing may be given in evidence to' show the value of 
 the rents, or the plaintifE may avail himself of an agreement which 
 has not been declared upon, whereby a rent certain is fixed.*^ 
 
 § 652. The statute providing a remedy for the recovery of rent, 
 by action of assumpsit for use and occupation, limits it to cases where 
 the agreement is not by deed.** "Nor is it easy," said Justice Wilde, 
 of the Massachusetts Court, "to discern any good reason why it should 
 not be thus limited ; since where the demise is by deed, another remedy 
 is provided, applicable to the contract."*^ According to common-law 
 rules of pleading, a general count for use and occupation was proper 
 for the recovery of rent due from a tenant, occupying under a parol 
 demise; but where there was a lease under seal, it was necessary to 
 declare either in debt or covenant upon the lease.**' To maintain an 
 action for use and occupation it was necessary to prove a tenancy un- 
 der a parol demise ;*^ in law a count for use and occupation, and one 
 
 *^Cohoon v. Kineon, 46 Ohio St. 
 590, 22 N. E. 722. 
 
 " Marr v. Ray, 151 111. 340, 37 N. 
 E. 1029; Williams v. Sherman, 7 
 Wend. (N. Y.) 109; Wilson v. Trus- 
 tees of No. 16, 8 Ohio 174. 
 
 " Beverly v. Lincoln &c. Co., 6 A. 
 & E. 829, 839. Before the statute 
 an action for use and occupation 
 might he maintained, unless an ac- 
 tual demise were shown; but proof 
 of such a demise was held (though 
 not uniformly) to be fatal to the 
 action, either on the ground of its 
 showing a real contract or because 
 the demise, having passed an in- 
 terest, the defendant could not be 
 said to occupy by the plaintiff's per- 
 mission. In some instances an ex- 
 ception was allowed where an ex- 
 press promise could be proved or 
 intended. The alteration intro- 
 duced by the statute was that proof 
 of a demise, unless by deed, was 
 no longer fatal to the action; but 
 the terms of the demise might be 
 
 used as evidence of the quantum of 
 damages. To same effect see Kier- 
 sted V. Orange &c. R. Co., 69 N. Y. 
 343; West v. Cartledge, 5 Hill (N. 
 Y.) 488; Wood v. Wilcox, 1 Denio 
 (N. Y.) 37. 
 
 *= Codman v. Jenkins, 14 Mass. 93. 
 
 '" Warren v. Ferdinand, 9 Allen 
 (Mass.) 357; Richards v. Killam, la 
 Mass. 239, 243; Codman v. Jenkins, 
 14 Mass. 93; 1 Chit. PI. 117, 377; 
 Smiley v. McLauthlin, 138 Mass. 
 363. 
 
 ^'Boston V. Binney, 11 Pick. 
 (Mass.) 1. The Massachusetts 
 practice act abolishes the distinc- 
 tion between actions of assumpsit, 
 covenant and debt, but requires the 
 plaintifE to set forth the substantive 
 facts necessary to constitute the 
 cause of action. If a claim for rent 
 under a parol demise is his cause 
 of action, it is well described by a 
 count for use and occupation; but 
 if the cause of action is a claim for 
 rent upon a lease under seal, he 
 
 1
 
 755 ACTIONS TO EECOVER EENT. [§ 653 
 
 for a breach of covenant for non-payment of rent constitute different 
 causes of action.** Where the relation of landlord and tenant is not 
 created by deed but is established by a contract, express or implied, 
 the landlord has two remedies against the tenant for non-payment of 
 rent: first, an action on the contract for the rent reserved; secondly, 
 an action for use and occupation of the premises.^^ 
 
 In Michigan the rule is settled that an action for use and occupa- 
 tion can be maintained on a written lease under seal.^" The reason 
 for refusing the action upon a sealed demise is that assumpsit will 
 never lie at common law on a sealed instrument, but the Michigan 
 statute authorizing actions of assumpsit extends to "all cases arising 
 upon contracts under seal or upon judgments, when an action of cove- 
 nant or debt may be maintained." The plain purpose of this statute 
 is to remove the purely technical distinction formerly existing, and to 
 put all contracts upon the same footing where parties desire to sue 
 in assumpsit. The only difference in substance between an action di- 
 rectly on the terms of a lease, and an action for use and occupation, 
 is that in one the declaration is special, and in the other general. 
 The purpose of both actions are the same and both are actions arising 
 upon contract.^^ 
 
 § 653. The whole action of trespass for mesne profits is a con- 
 trivance of awkward construction. It is founded on a recovery in 
 ejectment, and the record is evidence of the trespass ; but the recovery 
 of damages in ejectment is no bar for mesne profits for the same tres- 
 pass. The recovery in ejectment is then mere evidence of a right es- 
 tablished.^^ The action of trespass for the mesne profits lies upon 
 the fiction of law that the disseisee after entry has been in continu- 
 ous possession during the period of the disseisin. A disseisee who 
 
 must set forth the lease or the legal ^^ Mann v. Brewer, 7 Allen 
 
 effect thereof with proper aver- (Mass.) 202, 204. 
 
 ments to describe the cause of ac- *" Edmunds v. Missouri &c. Co., 76 
 
 tion. Gen. Stats., eh. 129, § 2. It Mo. App. 610; Aull Sav. Bank v. 
 
 is apparent, therefore, that if in Aull, 80 Mo 199; Edmonson v. Kite, 
 
 an action for use and occupation 43 Mo. 176; McLaughlin v. Dunn, 
 
 he were to offer in evidence a ten- 45 Mo. App. 645. 
 
 ancy under such lease, there would '^ Dalton v. Laudahn, 30 Mich, 
 
 be a variance between his allega- 349; Conkling v. Tuttle, 52 Mich, 
 
 tion and his proof, and he could not 630, 18 N. W. 391; Beecher v. Duf- 
 
 recover. Warren v. Ferdinand, 9 field, 97 Mich. 423, 56 N. W. 777. 
 
 Allen (Mass.) 357, 358. See also, "Dalton v. Laudahn, 30 Mich. 
 
 Burnham v. Roberts, 103 Mass. 379. 349. 
 
 ^=Richey v. Hinde, 6 Ohio 371.
 
 654] 
 
 RENT AXD ITS RECOVERY. 
 
 756 
 
 has recovered possession of the premises by any la^vful means may 
 maintain trespass for mesne profits against a party who has occupied 
 the premises as a tenant of the disseisor, although he was ignorant of 
 the disseisee's claim of title and has in good faith paid rent to the dis- 
 seisor.^^ 
 
 § 654. An action for use and occupation cannot be maintained ex- 
 cept where the relation of landlord and tenant exists. Unless there 
 has been an agreement, express or implied, from which an obligation 
 to pay rent can be inferred, some other remedy than an action for rent 
 or for use and occupation must be resorted to,^* The bare proof of use 
 
 ^^Trubee v. Miller, 48 Conn. 347; 
 Gould V. Stanton, 16 Conn. 12, 20; 
 Morgan v. Varick, 8 Wend. (N. Y.) 
 587, 592; Jackson v. Stone, 13 Johns. 
 (N. Y.) 448; Emerson v. Thompson, 
 2 Pick. (Mass.) 473, 486; Washing- 
 ton Bank v. Brown, 2 Mete. (Mass.) 
 293, 295; Storch v. Carr, 28 Pa. St. 
 135; Bradley v. McDaniel, 3 Jones 
 L. (N. Car.) 128; Green v. Biddle, 
 8 Wheat. (U. S.) 1, 75; Doe v. Whit- 
 comb, 8 Bing. 46. In Liford's case, 
 11 Coke 46, 51 (1615) there is a 
 dictum of Lord Coke, C. J., to the 
 effect that the disseisee after re- 
 entry cannot recover in an action 
 for mesne profits against the feoffee 
 or lessee, or disseisor of the first 
 disseisor, giving as reasons that 
 "this fiction of the law that the free- 
 hold continued always in the dis- 
 seisee shall not have relation to 
 make him who comes in by title a 
 wrong-doer vi et armis." Buller, 
 in his Nisi Prius, 87, speaking of 
 the doctrine of Liford's case says: 
 "It may admit of doubt, for there 
 are cases to the contrary, and the 
 reason of the law seems to be with 
 them." In Emerson v. Thompson, 
 2 Pick. (Mass.) 473, 486, Wilde, J., 
 says: "So far, therefore, from feel- 
 ing myself bound by Liford's case 
 as an authority, I am of opinion 
 that the weight of authority is op- 
 posed to the decision in that case; 
 
 and that this is also the opinion of 
 the English courts may be inferred 
 from their well-known practice in 
 relation to the action for mesne 
 profits consequent to a recovery in 
 ejectment. 
 
 "Indiana: Pittsburgh &c. R. Co. 
 V. Thornburgh, 98 Ind. 201; Tinder 
 V. Davis, 88 Ind. 99; Nance v. Alex- 
 ander, 49 Ind. 516; Newby v. Vestal, 
 6 Ind. 412. Colorado: Hennessey v. 
 Hoag, 16 Colo. 460, 27 Pac. 1061. 
 Maryland: Stoddert v. Newman, 7 
 H. & J. 251. Florida: Ward v. Bull, 
 1 Fla. 271, 278. Georgia: Barnes v. 
 Shinholster, 14 Ga. 131; Gould v. 
 Kerr, 52 Ga. 619. Kentucky: 
 Cooper V. Bramel, 14 Ky. L. R. 399. 
 Maine: Porter v. Hooper, 11 Me 170; 
 Fox v. Corey, 41 Me. 81; Eastman 
 V. Howard, 30 Me. 58. Mississippi: 
 Scales V. Anderson, 26 Miss. 94. 
 Missouri: Cohen v. Kyler, 27 Mo. 
 122; Aull Sav. Bank v. Aull, 80 Mo. 
 199. New Hampshire: Barron v. 
 Marsh, 63 N. H. 107. New Jersey: 
 Brewer v. Craig, 18 N. J. L. 214. 
 New York: Bancroft v. Wardwell, 
 13 Johns. 489, 491. Pennsylvania: 
 McCloskey v. Miller, 72 Pa. St. 151. 
 Ohio: Richey v. Hinde, 6 Ohio 371. 
 Oregon: Espy v. Fenton, 5 Ore. 423. 
 Vermont: Blake v. Preston, 67 Vt. 
 613, 32 Atl. 491; Clark v. Clark. 58 
 Vt. 527, 3 Atl. 508; Moore v. Har- 
 vey, 50 Vt. 297; Chamberlin v. 
 
 i
 
 757 
 
 ACTIONS TO RECOVER REXT. 
 
 [§ 655 
 
 and occnpation by the vendor, after conveyance of the premises 
 granted, is not sufficient to support an action for compensation in the 
 nature of rent. The purchaser's remedy in such cases is trespass or 
 ejectment and for the recovery of mesne profits.^^ The continued oc- 
 cupation of an execution debtor does not charge him with rent for the 
 premises unless he expressly agrees to pay it.^^ For the same reason 
 a debtor, after redeeming land sold on execution, cannot recover from 
 the lessee of the creditor for use and occupation prior to the redemp- 
 tion.^^ As a general rule it may be stated that no action for rent, 
 eo nomine, can be maintained, unless the relation of landlord and ten- 
 ant exists between the parties.^^ It follows that use and occupation 
 cannot be maintained against a person who holds adversely^'' or against 
 a trespasser.®" Being an action ex contractu, it necessarily follows 
 that no action of that nature can be supported where there is no pre- 
 tense of a contract, and certainly not where the possession is claimed 
 adversely.''^ However, the action for use and occupation does not 
 necessarily suppose any express demise.®^ In a case where an action 
 of this nature on an implied promise was sustained the court said: 
 "There was no express contract between the parties and none was 
 necessary. The law will imply a contract to pay rent from the mere 
 fact of occupation, unless the character of the occupancy be such as 
 to negative the existence of a tenancy. An action for use and occupa- 
 tion does not necessarily suppose any demise.""^ 
 
 § 655. While the law will imply the relation of landlord and ten- 
 ant from the fact of the occupancy of the premises with the consent 
 of the owner,*** this implication may be rebutted by proof of a con- 
 
 Donahue, 44 Vt. 57; Stacy v. Ver- 
 mont &c. R. Co., 32 Vt. 551. Wis- 
 consin: De Pere Co. v. Reynen, 65 
 Wis. 271, 22 N. W. 761, 27 N. W. 155. 
 England: Lindon v. Hooper, Cowp. 
 414, 419; Winterbottom v. Ingham, 
 7 A. & E. (N. S.) 611, 53 E. C. L. 
 611. 
 
 == Preston v. Hawley, 139 N. Y. 
 296, 34 N. E. 906; Boston v. Binney, 
 11 Pick. (Mass.) 1; Greenup v. Ver- 
 nor, 16 111. 26; Tew v. Jones, 13 M. 
 & W. 12; §§ 29-36. 
 
 =" Miller v. Buchanan, 2 Baxt. 
 (Tenn.) 390. 
 
 " Dakin v. Goddard, 32 Me. 138. 
 
 '^^Warnock v. Harlow, 96 Cal. 298, 
 31 Pac. 166. 
 
 "^^ Inman v. Morris, 63 Miss. 347; 
 Barron v. Marsh, 63 N. H. 107; 
 Richardson v. Richardson, 72 Me. 
 403; Bigelow v. Jones, 10 Pick. 
 (Mass.) 161. 
 
 «* Edmonson v. Kite, 43 Mo. 176; 
 Brewer v. Craig, 18 N. J. L. 214. 
 
 " Scales V. Anderson, 26 Miss. 94. 
 
 "-Dean &c. v. Pierce, 1 Camp. 467; 
 Hull V. Vaughan, 6 Price 157. 
 
 *^ Chambers v. Ross, 25 N. J. L. 
 293. 
 
 <** Where one occupies land by the 
 consent of the owner the presump-
 
 655] 
 
 EENT AXD ITS RECOVERY. 
 
 758 
 
 tract or any other fact that is inconsistent with that relation.*'^ Thus 
 a contract to purchase which is ultimately carried out and occupation 
 under it/^ a contract or other fact inconsistent with the relation of 
 landlord and tenant,^^ a suit and judgment in ejectment,*^^ occupation 
 in the right of the wife and refusal to acknowledge the owner as land- 
 lord/^ occupation when the plaintiff denies the existence of any con- 
 tract for the use of the premises/" have each been held not to raise 
 but to rebut the implication of a tenancy or the right to recover rent. 
 No rent could be recovered from one who was put into possession un- 
 der a void conveyance.'^^ 
 
 However, it has been held that after a purchaser in possession makes 
 a default in his contract of purchase, an implied promise to pay rent 
 will be raised from his continued occupation of the premises and an 
 action of assumpsit for use and occupation can be maintained against 
 him.^2 A widow left in possession of the homestead beyond the time 
 allotted to her by statute cannot be sued in assumpsit for use and oc- 
 cupation by the heirs. There is no privity of contract between them 
 and her. She has not been their tenant and they cannot compel her to 
 ■ be. There is no relation from which an implied contract to pay rent 
 can be inferred.''^ And obviously the occupation of a house by a 
 woman after the death of husband does not render his estate liable for 
 the rent of the house.'^* Where a tenant wlio is to pay rent by making 
 repairs, neglects to do so, the landlord has been allowed to treat the 
 
 tion of law is that he was to pay- 
 reasonable rent. The onus of prov- 
 ing that no rent was to be paid is 
 on the one who seeks to be relieved 
 of the burden. Sterrett v. Wright, 
 27 Pa. St. 259. 
 
 » Blake v. Preston, 67 Vt. 613, 32 
 Atl. 491; Stacy v. Vermont &c. R. 
 Co., 32 Vt. 551; Chamberlin v. Dona- 
 hue, 44 Vt. 57; Moore v. Harvey, 50 
 Vt. 297. 
 
 ««Dakin v. Allen, 8 Cush. (Mass.) 
 33; Newby v. Vestal, 6 Ind. 412; 
 Miles V. Elkin, 10 Ind. 329; Hoffar 
 V. Dement, 5 Gill (Md.) 132; Wy- 
 man v. Hook, 2 Me. 337; Lapham v. 
 Norton, 71 Me. 83; Dennett v. Pen- 
 obscot &c. Co., 57 Me. 425; Wood- 
 bury V. Woodbury, 47 N. H. 11; 
 Hough V, Birge, 11 Vt. 190; Ban- 
 
 croft V. Wardwell, 13 Johns. (N. Y.) 
 489; Smith v. Stewart, 6 Johns. (N. 
 Y.) 46, 49. 
 
 " Stacy V. Vermont &c. R. Co., 32 
 Vt. 551; Strong v. Garfield, 10 Vt. 
 502. 
 
 "* Chamberlin v. Donahue, 44 Vt. 
 57. 
 
 «° Moore v. Harvey, 50 Vt. 297. 
 
 ™ Clark V. Clark, 58 Vt. 527, 3 
 Atl. 508. 
 
 " Jewell V. Harding, 72 Me. 124. 
 
 "Lapham v. Norton, 71 Me. 83; 
 Patterson v. Stoddard, 47 Me. 355; 
 Gould V. Thompson, 4 Mete. (Mass.) 
 224, 
 
 '= Emery v. Emery, 87 Me. 281, 32 
 Atl. 900. 
 
 '* Carter v. Tippins, 113 Ga. 636, 
 38 S. E. 946.
 
 V59 ACTIOXS TO RECOVER REXT. [§ 656 
 
 contract as rescinded and recover, for the use and occupation, in as- 
 sumpsit.'^^ 
 
 In the absence of an express agreement, or of actual possession, only 
 the owner of the legal estate can maintain an action for use and occu- 
 pation. A cestui que trust cannot maintain an action for use and oc- 
 cupation where the letting is by the trustee.^ ^ 
 
 Since a plaintifE cannot recover in an action of use and occupation 
 unless the relation of landlord and tenant exists between the parties, 
 and if it does the defendant cannot controvert the title, it is not neces- 
 sary for the complaint in such an action to allege title in the plain- 
 tiff." 
 
 § 656. Recovery of crop rents. — Where a tenant failed to carry 
 out his agreement to pay rent by delivering a certain number of 
 bushels of grain raised on the premises on a certain day, it was held 
 that the landlord could recover the market value of the grain at the 
 time it should have been delivered in an action for use and occupa- 
 tion.'^* Where land is leased for a crop rent, the tenant should not al- 
 low the land to lie idle, and it has been declared that the landlord is 
 entitled to demand for rent such portion of the crop raised as his share 
 would amount to, if proper industry had been bestowed upon the 
 land.^^ Objection has been made that it would give rise to intermi- 
 nable litigation, if landlords leasing on shares could claim all that 
 would have inured to their benefit, if the tenant had exercised ordinary 
 industry and Judgment in the cultivation of the crops and that the 
 amicable adjustment of rents would be almost exceptional.*" But 
 such disputes could be settled in an action of account, and in Vermont 
 a landlord letting on shares can maintain an action of account against 
 his tenant after demand and refusal.*^ 
 
 The rule has been declared to be well settled that when land is leased 
 in consideration of a part of the crop that may be raised thereon, and 
 the lease does not contain any stipulation as to when such share is 
 payable, it is due when the crop is harvested, or within a reasonable 
 time thereafter.*^ Crops planted one year and harvested the next arc 
 
 '" Tate V. McClure, 25 Ark. 168. '' Butler v. Baker, 5 Ohio St. 584. 
 
 "Couch V. McKellar, 33 Ala. 473; ^» Wheat v. Watson, 57 Ala. 581. 
 Grady v. Iback, 94 Ala. 152, 10 So. «" Patton v. Garrett, 37 Ark. 605. 
 287; Balls v. Westwood, 2 Camp. 13 " Stedman v. Gassett, 18 Vt. 346. 
 n; Harris v. Booker, 12 Moore 283. " Spicer v. Spicer, 5 Harr. (Del.) 
 
 "Hood V. Mathis, 21 Mo. 308. But 106; Toler v. Seabrook, 39 Ga. 14; 
 
 see Stevens v. Andrews, 10 Colo. Jones v. Adams, 37 Ore. 473, 59 Pac. 
 
 402, 15 Pac. 616. 811; Long v. Seavers, 103 Pa. St.
 
 § 657] KENT AXD ITS KECOVEEY. 760 
 
 reckoned part of the jDiofits and income of the year when they are 
 harvested,^^ and it has been expressly held that rent in kind cannot 
 become due until the crops are ripe and deliverable.^* Under a pro- 
 vision that the crop rent for a farm planted with corn and oats was to 
 become due "when the crop matures or any portion of it is fit for 
 market/' the rent was held to be payable as soon as the oats were in 
 stack and the corn all ripe.^^ Under the North Carolina statute en- 
 'abling a landlord to recover rent in kind before division, there must l)e 
 an agreement in writing as to the amount which shall belong to tlie 
 landlord in order to entitle him to recover under the statute.^® 
 
 § 657. If there is no actual ouster, or eviction, of one tenant in 
 common by the other, neither is liable to the other for mere use and 
 occupation, unless there was a special contract or agreement to pay 
 rent, or unless, upon a letting of the premises, one tenant in common 
 actually realized, in rents collected, an undue proportion of the use and 
 occupation and rents.^^ Nor can one of two tenants in common sue 
 alone for use and occupation of the premises owned in common, when 
 the lessee was let into possession by both,^® or when the lessee was let 
 into possession by another tenant.®" Under the statute 4 and 5 Anne, 
 ch. 16, which is regarded as a part of the common law in Maine and in 
 Massachusetts, it has been held in both those states that indebitatus 
 assumpsit, in place of the old action of account, would lie by one ten- 
 ant in common against another, as bailiff, for receiving more than his 
 proportion of the rents and profits. The statute constitutes the re- 
 ceiver bailiff to his co-tenant, without special appointment, and all 
 that is requisite to bring a party within it is to allege and prove that 
 he is tenant in common, and that his co-tenant has received more than 
 his just share of rents.®" However, one tenant in common may be dis- 
 seised by another; and when this has been done, as to the rents re- 
 ceived during the period of disseisin, assumpsit is no longer the proper 
 remedy at common law, nor under any statute.®^ And as long as one 
 
 517; Lamberton v. Stouffer, 55 Pa. 100; Hutton v. Powers, 38 Mo. 353; 
 
 St. 284; Brown v. Adams, 35 Tex. Gowen v. Shaw, 40 Me. 56. 
 
 447. ^' Dorsett v. Gray, 98 Ind. 273. 
 
 ^' Lamberton v. Stouffer, 55 Pa. ^' Whitaker v. Allday, 71 Tex. 623, 
 
 St. 284. 9 S. W. 483. 
 
 ^ Spicer v. Spicer, 5 Harr. (Del.) '-^ Munroe v. Luke, 1 Mete. (Mass.) 
 
 106. 459, 464; Richardson v. Richardson, 
 
 ^» Hull v. Stogdell, 67 Iowa 251, 25 72 Me. 403. 
 
 N. W. 156. " Richardson v. Richardson, 72 
 
 *" Foster v. Penry, 76 N. Car. 131. Me. 403; Thomas v. Pickering, 13 
 
 ^'Terrell v. Cunningham, 70 Ala. Me. 337, 353; Bracket v. Norcross,
 
 '^'61 ACTIONS TO RECOVER RENT. [§ 608 
 
 of the tenants in common himself occupies the premises no implied 
 promise to pay rent arises upon which use and occupation may be 
 maintained.^2 Pqj, ^^ |g ^ general principle that though occupation is 
 with the consent of the owner, attendant circumstances may be such 
 that no promise to pay rent can be inferred.®^ 
 
 § 658. That rent is an incident to the reversion and that whoever 
 is entitled to the reversion at the time the rent becomes payable is of 
 right entitled to it, unless it is reserved in the grant, is a proposition 
 firmly established in the law.^* "Both assignees in deed and assignees 
 in law shall have the rent," says Lord Coke, "because the rent being 
 reserved of inheritance to him and his heirs is incident to the rever- 
 sion and goeth with the same."^^ Attornment by a tenant is not neces- 
 sary to enable an assignee of the reversion to recover rent,**® and rent 
 which does not become due till after a conveyance by the landlord, goes 
 to the grantee entire.^^ A lessor who has assigned his reversion can- 
 not sue the lessee on the covenants to pay rent in the lease. To such 
 an action it is a full answer that the plaintifE had assigned before the 
 rent accrued.^^ As soon as the privity of estate is transferred, the 
 remedy by debt is transferred also, and passes to the grantee of the 
 reversion, so the original lessor cannot sue in debt for the rent under 
 a parol lease after he has assigned the reversion.^^ 
 
 As a general rule, however, an action of covenant does not lie with- 
 out some privity of contract, while debt or a distress lies on mere 
 privity of estate. ^°° Furthermore, at common law choses in action 
 were not assignable and none but parties or privies to express cove- 
 nants were bound by them or could take advantage of them. This rule 
 seems to have been well settled in England, and to avoid its effect and 
 enable the assignee of the reversion to maintain an action in his own 
 name upon the express real covenants, those running with the land, 
 the statute, 33 Hen. VIII, ch. 34, was enacted. After the passage of 
 
 1 Me. 89; McClung V. Ross, 5 Wheat. Watts (Pa.) 394; Biddle v. Huss- 
 
 (U. S.) 124; Willison v. Watkins, man, 23 Mo. 597, 602. See § 460. 
 3 Pet. 43, 52; Barnard v. Pope, 14 "'2 Coke, p. 215; § 348. 
 Mass. 434, 438. »° Wise v. Falkner, 51 Ala. 359. 
 
 "= Gowen V. Shaw, 40 Me. 56. =' Dixon v. Niccolls, 39 111. 372. 
 
 "' Mitchell v. Pendleton, 21 Ohio "'* Markland v. Crump, 1 Dev. & B. 
 
 St. 664. L. (N. Car.) 94, 100; Walker's Case, 
 
 «'Tubb v. Fort, 58 Ala. 277; Pope 3 Coke 22. 
 V. Harkins, 16 Ala. 321; English v. "' Mixon v. Coffield, 2 Ired. L. (N. 
 
 Key, 39 Ala. 113; Steed v. Hinson, Car.) 301. 
 76 Ala. 298; Bank &c. v. Wise, 3 ^"^ Adams v. French, 2 N. H. 387.
 
 § 658] EEXT AXD ITS KECOVERT. 762 
 
 this act, the assignee of the reversion could maintain his action upon 
 the express real covenants. It enabled the lessor and reversioner succes- 
 sively to transfer from one to the other the privity of contract."^ 
 This statute of Henry Eight is generally held to be a part of the com- 
 mon law in this country.^*'^ Although the statute was regarded as not 
 in force in Ohio, it was nevertheless held that an assignee of a re- 
 version had a right of action on a lessee's covenant to pay rent under 
 the code in that state, because the covenant, though not made with the 
 assignee, was made for his benefit.^'^^ 
 
 Whatever doubt may have originally existed upon the point, it is now 
 well settled that an assignee of rent, without the reversion, may have 
 debt for the rent against the lessee.^"* A lessor may assign the rent to 
 become due upon a lease without assigning the reversion and the as- 
 signee in such case may maintain an action for the rent in his own 
 name.^°^ But an assignment not under seal, of a lease under seal, 
 does not transfer to the purchaser the legal title to the instrument, so 
 as to enable him to maintain an action on its covenants. An assign- 
 ment should be by an instrument of as high a nature as the instru- 
 ment it purports to transfer. The purchaser of the lease by the written 
 transfer, not under seal, becomes its equitable owner, but he has not 
 such legal title as to enable him to maintain an action for rent in his 
 own name.^*'® 
 
 Under a cropping contract, where no estate in the land passes to 
 the occupant, the contract for payment for the use of the land should 
 be enforced by the administrator of a deceased landlord who died be- 
 fore the contract was performed, there being a distinction in this re- 
 
 "1 Piatt on Gov. 527-533; Craw- ^""Kendall v. Garland, 5 Gush. 
 
 ford v. Chapman, 17 Ohio 449. (Mass.) 74; Patten v. Deshon, 1 
 
 "= Harrison v. Steele, 4 H. & McH. Gray (Mass.) 325; Hunt v. Thomp- 
 
 (Md.) 218. But see Wells v. Gowles, son, 2 Allen (Mass.) 341; Vin. Abr. 
 
 4 Conn. 182. "Estate" B, b, 18 pi. 10; Bacon Abr. 
 
 1"^ Smith v. Harrison, 42 Ohio St. "Rent" M; Gilbert on Rents, 165-6; 
 
 180. Where a house and lot and 4 Gruis. Dig. Tit. 28, ch. 3, §§ 19, 
 
 furniture were leased and the lessee 20, 21, 31; Allen v. Bryan, 5 B. & 
 
 covenanted to pay rent for the C. 512; Farley v. Craig, 11 N. J. L. 
 
 house and furniture, an assignment 262, 273; Ryerson v. Quackenbush, 
 
 of the house and lot alone without 26 N. J. L. 236; Demarest v. Wil- 
 
 the furniture will not entitle the lard, 8 Cow. (N. Y.) 206; Willard 
 
 assignee to bring an action in his v. Tillman, 2 Hill (N. Y.) 274. 
 
 own name for the rent. For there "=Wineman v. Hughson, 44 111. 
 
 is not privity of estate when the App. 22 ; Crosby v. Loop, 13 111. 625. 
 
 furniture is not assigned. Jones '»« Bridgham v. Tileston, 5 Allen 
 
 V. Smith, 14 Ohio 606. (Mass.) 371. 
 
 I
 
 763 ACTIONS TO RECOVER REXT. [§ 659 
 
 spect between such a contract and one for the payment of rent.^^^ For 
 ordinarily rent is a chattel real and goes to the heir and not to the 
 administrator in case of a landlord's death.^"^ 
 
 § 659. A sub-tenant is not answerable to the original lessor for the 
 rental, as there is neither privity of estate nor privity of contract be- 
 tween them, and therefore such sub-tenant is not subject to an action 
 of assumpsit for use and occupation by the original lessor. ^"^ An 
 undertenant is not liable to the landlord directly for rent in any form 
 of action, but an assignee of the term is liable either in debt or on 
 covenant.^^" As long as a valid joint lease remained in force and had 
 not been assigned, the lessor could not recover in an action for use 
 and occupation of the leased premises, brought against one lessee and 
 a third party jointly for rent during the period covered by the lease. 
 The premises were held under the written lease and, until that instru- 
 ment was cancelled, no implied contract by other parties to pay rent 
 would arise. ^^^ 
 
 It is a reasonable rule of the law, and well settled, that a tenant, for 
 a certain term, or for life, who has underlet, has no right to surrender 
 his lease to the prejudice of the sub-tenant.^ ^- A landlord could, 
 however, recover from a sub-lessee for injury done to the reversion by 
 removing a building from the premises. ^^^ The surrender of the 
 main term of a leasehold estate totally extinguishes it, and with it any 
 sub-terms; or rather such surrender would extinguish any sub-term 
 as a necessary result of the extinction of the main term, but for an- 
 other rule of law which has been raised for the protection of under- 
 tenants, to wit : that their rights will not be destroyed or impaired by 
 a surrender of the main lease ; and yet the surrenderee may not sue the 
 undertenant for rent or on any other covenant. This rule is botli 
 ancient and technical but has been laid down by all text-writers and 
 
 ^" Autrey v. Autrey, 94 Ga. 579, 20 "» Dartmouth College v. Clough, 8 
 
 S. E. 431. N. H. 22. 
 
 i°« Dixon V. Niccolls, 39 111. 372. i" Doty v. Gillett, 43 Mich. 203, 5 
 
 I'^Kiersted v. Orange &c. R. Co., N. W. 89. 
 
 €9 N. Y. 343; Way v. Holtan, 46 Vt. "= 1 Shep. Touch. 301; Adams v. 
 
 184; Holmin v. DeLin, 30 Ore. 428, Goddard, 48 Me. 212; Eten v. Leys- 
 
 47 Pac. 708; Campbell v. Stetson, 2 ter, 60 N. Y. 252; Hessel v. Johnson, 
 
 Mete. (Mass.) 504; Shattuck v. 129 Pa. St. 173, 18 Atl. 754, 15 Am. 
 
 Lovejoy, 8 Gray (Mass.) 204; Pierce St. 716; Brown v. Butler, 4 Phila. 
 
 v. Minturn, 1 Cal. 470; Giddings v. (Pa.) 71; McDonald v. May, 96 Mo. 
 
 Felker, 70 Tex. 176, 7 S. W. 694; App. 236, 69 S. W. 1059; see § 552. 
 
 Knight V. Old, 2 Civ. Cas. Ct. App., '" Winston v. President &c., 28 
 
 § 77. Miss. 118.
 
 I 660] RENT AXD ITS RECOVERY. 764 
 
 followed in all old judgments on the subject.^^* Both judges and com- 
 mentators have deplored its hardship as to landlords, because it some- 
 times operates to cut them out of their rent, while permitting a sub- 
 tenant to retain the premises, and it has been corrected by statute in 
 England.^^^ In a Pennsylvania case an attornment by the sub-ten- 
 ant to the original lessor on the terms of the sub-lease, after the sur- 
 render by the mesne tenant, was presumed in order to enable the 
 owner to get his rent, thus repudiating the old doctrine that the un- 
 dertenant may keep possession without rendering rent.^^® 
 
 § 660. Where the fact of an agency is not disclosed at the time an 
 agent enters into a contract of lease for his principal, if the lease is 
 not under seal, it is the ordinary case of a contract not under seal, 
 made by an agent in his own name on behalf of an undisclosed prin- 
 cipal; and it is not to be doubted that an action can be maintained 
 upon it for rent in the name of the principal."^ The rule is well 
 settled, that if the agent possesses due authority to make a written 
 contract not under seal, and he makes it in his own name, whether 
 he describes himself as agent or not, or whether the principal be 
 known or unknown, his principal will be made liable and will be en- 
 titled to sue thereon.^^® 
 
 But the rule that an unnamed and unknown principal shall stand 
 liable for the contract of his agent, does not apply to a demise under 
 seal. The relation between the owner of land and those who occupy 
 it is of a purely legal character; and the fact that a lessee takes a 
 lease under seal for an unnamed principal, but in his own name, will 
 not render the unnamed principal liable for the rent.^^^ Such a lease 
 would not be binding on the principal, although the fact of the agency 
 was recited in it, and although it appeared by extrinsic evidence that 
 the lessee acted as agent, and if the principal occupied during the term 
 without an assignment, he would be presumed to have entered as sub- 
 tenant.^20 jt was held in one case that if the recital of the agency 
 itself shows that it was not merely descriptive of the person, it will 
 
 "* McDonald v. May, 96 Mo. App. (Mass.) 371; Fenly v. Stewart, 5 
 
 236, 69 S. W, 1059; Webb v. Russell, Sandf. (N. Y.) 101. 
 
 3 Term R. 393, 403; Krider v. Ram- "^ Nicoll v. Burke, 78 N. Y. 580; 
 
 say, 79 N. Car. 354. Briggs v. Partridge, 64 N. Y. 357. 
 
 "= McDonald v. May, 96 Mo. App. "" Sheldon v. Dunlap, 16 N. J. L. 
 
 236, 69 S. W. 1059. 245; Borcherling v. Katz, 37 N. J. 
 
 "«Hessel v. Johnson, 129 Pa. St. Eq. 150; Nicoll v. Burke, 78 N. Y. 
 
 173, 18 Atl. 754, 15 Am. St. 716. 580; Elwell v. Shaw, 16 Mass. 42. 
 
 "'Bryant v. Wells, 56 N, H. 152; ^^oRiersted v. Orange &c. R. Co., 
 
 Huntington v. Knox, 7 Cush. 69 N. Y. 343, 1 Hun 151.
 
 7G5 ACTIONS TO RECOVER REXT, [§ G61 
 
 be regarded as the lease of the principal, who is chargeable upon it.^^^ 
 Wliere a lease was taken in trust for a corporation thereafter to be 
 formed, and the corporation was formed and received an assignment 
 of the lease, a liability in equity, on the part of the corporation, to 
 pay rent to the lessor arose.^^" 
 
 If an agent makes a lease in his own name, and executes it in his 
 own name, though the rent is reserved to his principal, and all the 
 covenants purport to be made with his principal, the principal cannot 
 maintain an action upon it, for the reason that on a deed inter partes 
 no person can maintain an action except a party to it.^^^ 
 
 In Illinois there is a statute the effect of which is, so far as it re- 
 lates to the form of action and who may have the benefit of covenants, 
 to take the seals off a lease. The rule that where one person, for a 
 valuable consideration, makes a promise to another for the benefit of 
 a third person, such third person may maintain an action upon it, is 
 by the statute extended to cases where the contract is under seal.^-* 
 
 § 661. A covenant to pay rent creates no debt or legal demand for 
 rent till the time stipulated for payment arrives.^-^ Although there 
 be a lease which may result in a claim for rent, which \A\\ constitute 
 a debt, yet no debt accrues until such enjoyment has been had.^-® 
 Yet if the action for rent be special assumpsit on an express agree- 
 ment to pay rent, the occupancy of the defendant is immaterial, and 
 sucli an action may be maintained at common law,^-'^ in place of the 
 action of assumpsit for use and occupation. 
 
 In case a tenant has not entered into possession at all, under his 
 lease or agreement, either in person or by an undertenant or agent, 
 assumpsit for use and occupation will not lie against him, but the 
 remedy, generally, is upon the lease or agreement.^^^ But under a 
 
 ^^ Avery v. Daugherty, 102 Ind, 543; Perry v. Aldrich, 13 N. H. 343; 
 
 443. Countess of Plymouth v. Throgmor- 
 
 '"Van Schaick v. Third Ave. R. ton, 1 Salk. 65. 
 
 Co., 8 Abb. Pr. (N. Y.) 380, 30 Barb. ^^^ Bordman v. Osborn, 23 Pick. 
 
 189, 49 Barb. 409, 38 N. Y. 346. (Mass.) 295; Wood v. Partridge, 11 
 
 '"' Borcherling v. Katz, 37 N. J. Mass. 488. 
 
 Eq. 150; Sheldon v. Dunlap, 16 N. J. '=" Stier v. Surget, 10 S. & M. 
 
 T . 245; Berkeley v. Hardy, 5 B. & (Miss.) 154. 
 
 C. 355. i^^Tully v. Dunn, 42 Ala. 262; 
 
 '=^Adam v. Arnold, 86 111. 185; Wood v. Wilcox, 1 Denio (N. Y.) 
 
 Dean v. Walker, 107 111. 540; 37; Beach v. Gray, 2 Denio (N. Y.) 
 
 Harmes v. McCormick, 30 111. App. 84; Croswell v. Crane, 7 Barb. (N. 
 
 125. Y.) 191. 
 
 "= Russell v. Fabyan, 28 N. H.
 
 § 661] KEXT AND ITS RECOVERY. 766 
 
 joint lease the occupation of one is enough to make both lessees liable 
 in an action of debt for use and occupation.^^^ And after the lessee 
 has occupied the demised premises he cannot set up the invalidity of 
 the lease under which he held as a defense to an action for the rent.^^** 
 
 In the absence of a covenant to pay rent, as where a plaintiff in an 
 action of use and occupation relies on an oral promise, the liability 
 of the tenant must depend upon the actual use and occupation of the 
 premises, and there can be no recovery except for what was actually 
 used.^^^ But if the lease be valid, the lessee cannot escape his liability 
 for rent by relinquishing or abandoning the premises.^^^ A tenant 
 from year to year would be liable for a full year's rent although he 
 did not occupy for a full year.^^^ 
 
 In the absence of an express agreement in the lease or a local cus- 
 tom to the contrary, rent is not due till the end of the term, and this 
 means, in the case of a tenancy from year to year, that the annual 
 rent is not payable till the end of the year of occupancy.^^* This rule 
 that rent is not due and payable until the end of the term, in the 
 absence of agreement to the contrary, is well established, resting on 
 the principle that rent is not due till it is earned.^^^ Eent payable 
 under a lease on the twentieth of every month would ordinarily be 
 rent for the past month, and not rent in advance. ^^^ Specifying ccr- 
 
 1^ Kendall v. Garland, 5 Gush. Wend. (N. Y.) 480; Bordman v. Os- 
 
 (Mass.) 74. born, 23 Pick. (Mass.) 295; Me- 
 
 "» Mayor &c. v. Huntington, 114 nough's Appeal, 5 W. & S. (Pa.) 
 
 N. Y. 631, 21 N. E. 998, 23 N. Y. 432; Boyd v. McCombs, 4 Pa. St. 
 
 St. 912, 2 Silv. 272, affirming 1 N. 146; McFarlane v. Williams, 107 111. 
 
 Y. St. 785. 33; Bell v. Norris, 79 Ky. 48; Dur- 
 
 ^'1 Herrmann v. Curiel, 3 N. Y. yee v. Turner, 20 Mo. App. 34; Ridg- 
 
 App. Div. 511. ley v. Stillwell, 27 Mo. 128; Ostner 
 
 "^Andreon v. Hawkins, 4 H. & J. v. Lynn, 57 Mo. App. 187; Gray v. 
 
 (Md.) 319. Ghamberlain, 4 G. & P. 260; Goom- 
 
 ^^ Lofland v. Emory, 2 Harr. ber v. Howard, 1 C. B. 440, 50 E. C. 
 
 (Del.) 297. The removal of a ten- L. 440. In action for rent on a 
 
 ant, after notice to quit his yearly monthly letting, landlord can only 
 
 tenancy, at improper time does not recover that amount due at the end 
 
 make due rent which would not be of a monthly term prior to the 
 
 due then by the terms of the lease, service of • the writ. Stanley v. 
 
 there being no surrender of the Turner, 68 Vt. 315, 35 Atl. 321. 
 premises by the defendant. Ams- '^ Gastleman v. Du Val, 89 Md. 657, 
 
 den V. Atwood, 67 Vt. 289, 31 Atl. 43 Atl. 821; Gameron v. Little, 62 
 
 448, s. c. 69 Vt. 527, 38 Atl. 263. Me. 550; Tignor v. Bradley, 32 Ark. 
 
 I'* Elmer v. Sand Creek Tp., 38 781. 
 Ind. 56; Indianapolis &c. R. Go. v. "'Gastleman v. Du Val, 89 Md. 
 
 First Nat. Bank, 134 Ind. 127, 33 N. 657, 43 Atl. 821. 
 E. 676; Edwards v. Glemons, 24
 
 767 ACTIONS TO EECOVER RENT. [§ G62 
 
 tain time for payment does not affect the nature of the rent as an 
 annual income. It does not change an annual into a semi-annual rent 
 that it is payable in two instalments at periods of six months.^^^ A 
 clause in a lease requiring the rent to be paid in monthly instalments, 
 the first to be paid on the first day of the term, does not require pay- 
 ment in advance for each succeeding month. Unless it is clearly pro- 
 vided that rent shall be paid in advance, the general rule as to time 
 of payment would govern.^^^ 
 
 If by the terms of a lease rent is due on certain days, the time of 
 payment is not extended nor the right to sue in case of non-payment 
 postponed by the provision that the landlord may take possession of 
 the premises after sixty days' default of payment.^^^ Where the com- 
 putation of time ending in a holiday and the payment of rent falling 
 due on a holiday was covered by statute, but the matter of rent and 
 its payment was unaffected by legislation, it was held that rent fall- 
 ing due on a legal holiday other than Sunday was payable on the day 
 it fell due, in spite of its being a holiday.^**' 
 
 A tenant has the entire rent day during which to pay rent, so that 
 he cannot be in default till after that day has passed. ^*^ So, where 
 rent is made payable at stated intervals, in advance, the tenant has 
 the whole of the first day of each succeeding interval of time in which 
 to make the payment.^ *^ A lease demised a term of years "from the 
 first day of September now next ensuing," and reserved a rent payable 
 **by equal quarter-yearly payments," the first payment "to be made on 
 the first day of December now next ensuing." Under such a provision 
 it was held that rent, though payable December first, was not legally 
 due till midnight of that day, and could not be garnisheed until 
 then. 1*3 
 
 § 662. An undertaking in writing, attached to a lease between 
 landlord and tenant, by which a third person, without expressing any 
 consideration, agrees to become surety for the prompt payment of 
 rent, is void as within the statute of frauds. The relation of landlord 
 and tenant is not established between the surety and the lessor, so the 
 
 >^ Irving V. Thomas, 18 Me. 418. 558, 53 N. E. 92, affirming 14 App. 
 
 ^^'Lsjebe v. Nicolai, 30 Ore. 364, 48 Div. 310. 
 
 Pac. 172. '" Dalton v. Laudahn, 27 Mich. 
 
 "^Rowe V. Williams, 97 Mass. 163; 529. 
 
 Van Rensselaer v. Jewett, 5 Denio ^*^ Sherlock v. Thayer, 4 Mich. 355. 
 
 (N. Y.) 121, 131; Clun's Case, 10 "' Ordway v. Remington, 12 R. I. 
 
 Coke 127, 129a. 319. 
 
 ""Walton v. Stafford, 162 N. Y.
 
 «l 
 
 S 6631 RENT AND ITS KECOVERT. 768 J 
 
 " J i,S 
 
 I 
 
 contract is to answer for the debt of another, and if there is no con- 
 sideration expressed, it is void by the statute of frauds.^** If by the 
 terms of a guaranty the liability of a guarantor is primary and for 
 all the rent, he is not entitled to notice of default by the lessee. In 
 any event, it is necessary to show loss or injury by a want of notice. 
 If the guarantor could not have profited by notice, and has lost noth- 
 ing for the want of notice, these is no reason why he should corn- 
 plain.^*^ The general rule is that one entering into a contract of 
 guaranty must perform all its stipulations, unless he can show the 
 obligee has been guilty of some ladies by which he has been injured.^*® 
 
 A lease and a guaranty indorsed upon it must be taken as one en- 
 tire instrument. Where the word "within" is used in the guaranty, 
 it is fairly inferable that it was written on the outside page of the 
 lease, else there could be no application of the word "within." Tech- 
 nically there are two instruments, but practically there is but one. 
 So, if the covenantee is sufficiently designated, this enables him to 
 maintain the action.^'*'' 
 
 By the terms of a lease, in one case, the lessee promised to pay the 
 rent of eight hundred dollars for the term of one year, and also the 
 rent as above stated for such further time as the lessee may hold the 
 same. Upon the back of the lease, and before the delivery thereof, a 
 third person guaranteed to the lessor the payments of the rent therein 
 stipulated. This guaranty was held to include the payments which be- 
 came due after the expiration of the term of one year. The holding 
 over was continuous, and without any new contract between the lessor 
 and lessee; no change was made to take the case out of what was 
 provided for in the lease.^*^ But the surety's obligation is only co- 
 extensive with that of the lessee, and as soon as the occupation ceased 
 the liability of the surety, along with that of the lessee himself, would 
 come to an end.^*^ 
 
 § 663. Alterations in amount of rent and mode of payment. — Pay- 
 ment of a money rent may be by services rendered, on an express 
 agreement to that effect ; and it does not alter this result that a parol 
 promise to accept services in payment of rent is made before the lease 
 is executed. Such a promise would not be binding while executory, 
 
 ^"Hutson v. Field, 6 Wis. 407. 457; Farmers' &c. Bank v. Kerche- 
 
 "= Voltz V. Harris, 40 111. 155. But val, 2 Mich. 505. 
 see White v. Walker, 31 111. 422, ^" Otto v. Jackson, 35 111. 349. 
 438. '*«Rice v. Loomis, 139 Mass. 302, 
 
 "«Rhett V. Poe, 2 How. (U. S.) IN. E. 548. 
 
 "* Kendall v. Moore, 30 Me. 327.
 
 769 ACTIONS TO RECOVER RENT. [§ 663 
 
 but if the services are rendered and accepted in satisfaction, that 
 concludes the lessor.^^** Where a lease for one year, providing for the 
 payment of the entire rent on a day during the term, also provided 
 for the performance of certain work by the lessee at a fixed rate of 
 compensation, and for the application of the earnings therefrom on 
 the rental, the lessee was entitled to the deduction of compensation for 
 all labor performed by him during the term, whether before or after 
 the date fixed for the payment of the rent.^^^ 
 
 A clause reserving rent reckoned by profits made would be liberally 
 construed, and under a lease of a dam, reserving as rent one-half of 
 all tolls and money that may be earned by the use of said dam, the 
 lessor was held to be entitled to one-half of all earnings in running 
 and driving logs which could fairly be traced to the benefits of the 
 dam."2 
 
 An alternate provision in a lease of a farm for a cash rental, that 
 in case of injury to crops by wind the lessee may pay a crop-rent of 
 one-third of the crops grown, must be availed of by a tender of the 
 crops at the proper time ; and after the lessee has put this out of his 
 power by sub-letting for a cash rent, he loses the benefit of the pro- 
 vision. A tender of the crop-rent would have discharged the lessee's 
 liability on his rent notes, but he did not make such tender, and never 
 had it in his power to make it.^^^ 
 
 In a letting for a series of years, the leading idea as to rent is the 
 yearly rental. Its subdivision into frequent payments is a matter of 
 mathematics, and a secondary subject of thought, it being common 
 knowledge that in the great majority of leases and in negotiations for 
 them the rent stated and talked about is the yearly rent. Thus, in 
 case a lease is made paying a gross yearly sum, and the tenant cove- 
 nants to pay in quarterly instalments, the unnecessary addition of the 
 quarterly sums payable would not control if it difl'ered from the sum 
 first stated, such difference being manifestly a clerical error.^^* 
 
 In a lease of rooms in a building at a stipulated rental, it was 
 agreed that if any rooms in the building were rented for a less amount 
 than at that time "such reduction shall also be made to lessee for 
 term of this lease." It was urged that there Avould not be a reduction 
 
 >'" Oliver v. Phelps, 21 N. J. L. '" Dassance v. Cold, lOl' Iowa 610, 
 597. 70 N. W. 719. 
 
 "1 Crawford v. Armstrong, 58 Mo. "^ Smith v. Blake, '88 Me. 241, 33 
 App. 214. Atl. 992. 
 
 "^ Rayburn v. Mason Lumber Co., 
 57 Mich. 272, 23 N. W. 811. 
 Jones L. & T,— 49
 
 1 
 
 §§ 66-i, 665] EEXT AXD ITS RECOVERY. 770 
 
 "for term of this lease/' according to the covenant, unless the lessees 
 were paid back a portion of the rent previously collected. But this 
 suo-gestion failed, because there was no covenant to refund any portion 
 of the rent paid, and the covenant relied upon had reference to rent 
 to accrue during the remainder of the term, after other rooms had 
 been rented for a less amount.^^^ 
 
 § 664. A power of attorney contained in a lease to confess judg- 
 ment for rent due and interest is valid, and though it is forbidden to 
 include an attorney's fee, such a judgment would be valid for the 
 balance after the amount allowed as attorney's fee had been re- 
 mitted.^^^ The use of the singular number, "party of the second 
 part," when there are two lessees, does not invalidate a power to con- 
 fess judgment when the lease proceeds to authorize any attorney to 
 enter "their" appearance and confess judgment.^^' 
 
 One who leases a place for the practice of prostitution, and after- 
 wards receives rent therefor and permits the house to be so used, is 
 guilty of a violation of the statute in Illinois, and, on principles of 
 public policy, ought not to be permitted to invoke or obtain the aid of 
 the courts to enforce stipulations in the contract of letting which will 
 enable him to secure a judgment by confession for rent due for such 
 . use of the house. The lessee, in such case, even though in pari delicto 
 with the lessor, ought not to be denied or deprived of the privilege of 
 presenting the defense that the lease was illegal because of its being 
 in violation of the public law of the state. Such a defense is not al- 
 lowed on the ground that the person presenting it is entitled to relief, 
 but upon principles of public policy and to conserve the public wel- 
 fare.^^^ 
 
 § 665. The only defenses against an action for rent reserved in a 
 valid lease are, eviction, release, and surrender of the term. The 
 landlord's failure to allow lessee to continue to occupy under a lease 
 is not a defense to an action by the landlord for rent previously ac- 
 crued. At most the tenant can only claim a set-off to the extent he 
 was injured by the landlord's breach of agreement. ^^^ In an action 
 
 i^Copeland V. Goldsmith, 100 Wis. "^Fields v. Browu, 188 111.. Ill, 
 
 436, 76 N. W. 358. 58 N. E. 977, reversing 89 111. App. 
 
 15^ Fields v. Brown, 188 111. Ill, 287; Goodrich v. Tenney, 144 111. 
 
 58 N. E. 977, reversing 89 111. App. 422, 33 N. E. 44. 
 
 287; Agnew v. Sexton, 86 111. App. »» Hutchins v. Hodges, 98 N. Car. 
 
 274. 404, 4 S. E. 46. 
 
 '"Frank v. Thomas, 35 111. App. 
 547. 
 
 f
 
 771 ACTIONS TO RECOVER RENT. [§ (j66 
 
 for rent, the defense of surrender accepted by the landlord is not 
 inconsistent with the defense of constructive eviction. It is quite 
 possible for the lessee to have abandoned or surrendered possession 
 of the premises because of their untenantable condition, and for the 
 landlord to have accepted the surrender and resumed possession. The 
 idea that there is any inconsistency in the defenses arises from the 
 use of the term "constructive eviction."^*"' 
 
 An early statute in Illinois permitting the defense of want of con- 
 sideration to be set up in actions on certain instruments was held not 
 to permit such a defense to be made in a suit on a written lease. A 
 plea of no consideration in an action on a sealed instrument is bad in 
 Illinois unless it is such an instrument as is entitled negotiable under 
 the statute."^ 
 
 Such possession of the leased premises by the lessor as would sus- 
 tain the lease is prima facie established by its introduction in evi- 
 dence. In the absence of proof to the contrary, it will be presumed 
 that the lease, when executed, is valid and binding upon the parties. 
 The burden of showing facts which would avoid the lease is upon the 
 lessee. It is not necessary for the lessor to allege he was in possession 
 at the time the lease was executed. After showing that the lease was 
 in fact executed and that the rent due had not been paid, he has made 
 out a prima facie case.^®^ 
 
 § 666. Interest is recoverable as of right upon contracts In writing 
 to pay money upon a day certain ; as upon bonds, bills of exchange, or 
 promissory notes, though there be no express reservation of interest. 
 Applying this principle to a covenant for the payment of a specific 
 sum of rent upon a particular day, it is right that the jury calculate 
 interest on the same up to the time of rendering their verdict. ^*'^ It 
 is, indeed, true that interest on rent in arrear cannot be distrained 
 for — the distress can only be for the rent itself ; but the rule is differ- 
 ent in regard to an action of debt.^*^* 
 
 ""Minneapolis Coop. Co. v. Wil- Clark v. Barlow, 4 Johns. (N. Y.) 
 
 liamson, 51 Minn. 53, 52 N. W. 986. 183; Crane v. Hardman, 4 B. D. 
 
 "^Hallberg v. Brosseau, 64 111. Smith (N. Y.) 448; Dorrill v. 
 
 App. 520. Stephens, 4 McCord (S. Car.) 59; 
 
 "= Collins V. Hall, 5 Wash. 366, 31 Gill v. Patton, 1 Cranch C. C. 188, 
 
 Pac. 972. 10 Fed. Cas. No. 5430; Obermyer v. 
 
 "== Dennison v. Lee, 6 G. & J. (Md.) Nichols, 6 Binn. (Pa.) 159; McQues- 
 
 383; Newson v. Douglass, 7 H. & J. ney v. Hiester, 33 Pa. St. 435. See 
 
 (Md.) 417; Elkin v. Moore, 6 B. Wise v. Ressler, 2 Cranch C. C. 199, 
 
 Mon. (Ky.) 462; Honore v. Mur- 30 Fed. Cas. No. 17912. 
 
 ray. 3 Dana (Ky.) 31; Gutherie v. ^"^ White v. Walker, 31 111. 422. 
 Stockton, 5 Harr. (Del.) 123, 204;
 
 §' 666] EENT AND ITS RECOVERY. 772 
 
 Interest on rent is recoverable as damages only, except when pro- 
 vided for in the bond or agreement, and consequently in case the 
 postponement was by consent of the lessor, no interest could be re- 
 covered, for no damage would result to the consenting party.^®^ 
 Where rent is payable in kind, interest may be recovered during the 
 time the lessee is in default in paying, provided the amount of pro- 
 duce and the day for delivery were stipulated in the agreement. ^"^ 
 
 In the absence of statute in regard to the allowance of interest, a 
 party who sues for the arrearages of rent is not entitled, as a matter 
 of course, to interest on the sum found to be due. It is, however, 
 understood to be the general practice to allow interest on open ac- 
 counts, when by the usual course of dealings or by express agreement 
 a certain time is fixed for payment; and generally in all cases where 
 there has been an unjust detention of money of another against his 
 will. In these cases the interest allowed by the jury is regarded as 
 compensation for the damage sustained by the plaintiff in conse- 
 quence of the breach of contract by the defendant. But the allow- 
 ance is not as a matter of strict legal right, as in the cases expressly 
 provided for by statute. A similar rule may be adopted in equity, 
 giving a discretion to the chancellor to allow or disallow interest, ac- 
 cording to the circumstances of the case.^"'^ Where instalments of 
 rent fell due weekly, interest has been allowed on each instalment 
 from the date it was payable.^"^ 
 
 The Virginia Supreme Court considered the question of allowing 
 interest on rent at great length in 1808, delivering opinions seriatim, 
 with the result that two judges held that interest could not be allowed 
 in the absence of special circumstances, while the third judge thought 
 the giving of interest was in the discretion of the jury as an assess- 
 ment of damages. The reason assigned by the majority was that no 
 man shall take advantage of his own laches or neglect; therefore the 
 landlord shall not have interest for rent arrear, because he had the 
 effectual remedy of distress whenever he chose to use it. The argu- 
 ment of the dissenting judge was that interest is but a fixed measure 
 of damages; and damages are defined to be a compensation given by 
 
 "=Lush V. Druse, 4 Wend. (N. Y.) Van Rensselaer v. Jewett, 5 Denio 
 313. (N. Y.) 121, 135. 
 
 ^8«Van Rensselaer v. Jones, 2 ^" Howcott v. Collins, 23 Miss. 
 Barb. (N. Y.) 643; Van Rensselaer 398. 
 
 V. Plainer, 1 Johns. (N. Y.) 276; '«' Oliver v. Moore, 53 Hun (N. Y.) 
 
 472, 6 N. Y. S. 413.
 
 773 APPOKTIONMENT. [§667 
 
 a jury for an injury or wrong, so the withholding of rent, being an 
 injury done to the landlord, ought to be recompensed in damages.^**® 
 
 By statute in Illinois, interest is properly allowable where an ac- 
 count has been liquidated between the parties, and, by an agreement 
 to pay a fixed and stipulated sum for rent, the amount thus stipulated 
 becomes liquidated by the terms of the agreement itself, and nothing 
 further is necessary. ^'^^ In Kentucky, also, it is provided by statute 
 that all debts founded on any specialty, bill or note in writing ascer- 
 taining the demand, shall carry interest in the same manner as in- 
 terest due on a bond or bill with a penalty, and this has been held to 
 include rent reserved by a written instrument.^'^^ 
 
 Though rents and profits recoverable from a mortgagee on redemp- 
 tion do not usually bear interest until the filing of a bill to redeem 
 or an account be demanded, yet where the possession of the mortgagee 
 was mala fide from the beginning, the profits became a debt from the 
 time of their accrual, and therefore bear interest.^'^ 
 
 III. Apportionment. 
 
 § 667. By the general rule of the common law, rent may be ap- 
 portioned as to estate but not as to time.^^^ Wliile there may be an 
 apportionment of rent as to estate,^^* there can be none as to time,^^^ 
 for the contract is entire — ^the rent for the period of time agreed 
 upon is regarded as an indivisible item. The rule that rent cannot 
 be apportioned as to time applies only in the absence of a statute or 
 an express agreement to the contrary ;^^^ and a stipulation that in 
 case of destruction by fire accrued rent only should be paid, is equiv- 
 
 i«' Cooke v. Wise, 3 H. & M. (Va.) 261; Nicholson v. Munigle, 6 Allen 
 
 463, 483. (Mass.) 215; Russell v. Fabyan, 28 
 
 ""West Chicago &c. Works v. N. H. 543; Perry v. Aldrich, 13 N. 
 
 Sheer, 8 111. App. 367. See Malt- H. 343; Zule v. Zule, 24 Wend. (N. 
 
 man v. Williamson, 69 111. 423; Y.) 76; Page v. Culver, 55 Mo. App. 
 
 Ditch v. Vollhardt, 82 111. 134. 606; Countess of Plymouth v. Throg- 
 
 "^ Downing v. Palmateer, 1 T. B. morton, 1 Salk. 65. 
 
 Mon. (Ky.) 64. "^Salmon v. Matthews, 8 M. & W. 
 
 "^Benzein v. Robinett, 2 Dev. Eq. 825; Boston &c. R. Co. v. Ripley, 13 
 
 (N. Car.) 67. Allen (Mass.) 421. 
 
 '"Anderson v. Robbins, 82 Me. ™ Smith, Ex parte, 1 Swanst. 4, 
 
 422, 19 Atl. 910; Cameron v. Little, n. A; 2 Greenl. Cruise, tit. xxviii, 
 
 62 Me. 550; Cheairs v. Coats, 77 ch. 111. 
 
 Miss. 846, 28 So. 728; Dexter v. ""Mayor &c. v. Ketcham, 67 How. 
 
 Phillips, 121 Mass. 178, 23 Am. R. Pr. (N. Y.) 161.
 
 
 i 
 
 § 667] RENT AXD ITS RECOVERY. TT4 
 
 alent to an agreement for apportionment, which overrides the com- 
 mon-law rule.^"^ 
 
 Wliere a term expires before the day on which rent is payable, 
 whether by the eviction of the tenant from the land or because the 
 lease determines before the legal time of payment, no rent shall be 
 paid, for there shall never be an apportionment in respect of part of 
 the time.^^® This rule has been constantly and repeatedly recognized, 
 and is the settled rule of law.^'^ The landlord cannot maintain as- 
 sumpsit for use and occupation for such time as the tenant is actually 
 in occupation, because where the parties have come to an express con- 
 tract, none can be implied, this principle being so firmly established 
 as to be called an axiom of the law.^'" The only possession of the 
 lessee has been under the lease, and according to the terms of the 
 lease no rent has ever become due which remains unpaid. As the lease 
 terminates by its own provisions upon the happening of an event 
 which the parties have foreseen, and which they have stipulated should 
 have that effect, such termination cannot be treated as a mutual re- 
 scission of the express contract, by which an implied contract should 
 be substituted. 1^1 To reach this result it is not necessary to deny 
 that, under the modern notions of the rescission of contracts, and 
 implied assumpsit for use and occupation, work, labor and materials, 
 actions may now be brought in many cases after part performance ■{ 
 of the contract. But an implied assumpsit is general, and supposes 
 the special contract out of the way, under circumstances which raise 
 an equitable demand for rent.^*- 
 
 A mortgagor cannot maintain a quantum meruit for use and occu- 
 pation enjoyed by his lessee under a parol demise prior to the mort- 
 gagee's entry ; for the tenancy between the mortgagor and his lessee, 
 being junior to the mortgage, is completely determined by the mort- 
 gagee's entry and the lessee's attornment to him, which is equivalent to 
 eviction by paramount title.^^^ 
 
 i^Hecht v. Heerwagen, 14 Misc. Mass. 488; Burden v. Thayer. 3 
 
 (N. Y.) 529, 2 N. Y. Ann. Cas. 339. Mete. (Mass.) 76; Nicholson v. Mu- 
 
 "« Robinson v. Deering, 56 Me. nigle, 6 Allen (Mass.) 215. 
 
 357; Anderson v. Robbins, 82 Me. i«» Cutter v. Powell. 6 Term R. 320, 
 
 422. 19 Atl. 910; Cameron v. Little, 324; Hall v. Burgess, 5 B. & C. 332; 
 
 62 Me. 550; Zule v. Zule, 24 Wend. Grimman v. Legge, 8 B. & C. 324 
 
 (N. Y.) 76; Nicholson v. Munigle, ^'^ Nicholson v. Munigle, 6 Allen 
 
 6 Allen (Mass.) 215; Fuller v. (Mass.) 215; Fuller v. Swett, 6 Al- 
 
 Swett, 6 Allen (Mass.) 219; Clun's len (Mass.) 219. 
 
 Case. 10 Co. 127. ^'= Zule v. Zule, 24 Wend. (N. Y.) 
 
 "'Jenner v. Morgan. 1 P. Wil- 76. 
 
 liams 392; Hay v. Palmer. 2 P. Wil- ^^^ Anderson v. Robbins, 82 Me. 
 
 liams 501; Wood v. Partridge, 11 422, 19 Atl. 910,
 
 775 APPORTIOXMEXT. [§• 668 
 
 Furthermore, where a tenancy at will is terminated between two 
 rent days by a conveyance of the premises by the landlord to a third 
 person, the tenant is not liable to his landlord for use and occupation 
 of the premises from the first rent day to the date of the conveyance, 
 and the reason is that rent cannot be apportioned as to time.^^-* If the 
 landlord is entitled to an apportionment of the rent, he may main- 
 tain an action of use and occupation ; but if he is not entitled to ap- 
 portionment, he has no remedy at all.^^^ 
 
 Apportionment of rent, in cases where it is permitted, is for the 
 benefit of the owners of the rent, and the omission to apportion is 
 not a matter of which the tenant can complain, unless something 
 has transpired to relieve him from liability to pay the whole rent.^^*' 
 
 § 668. When part of a reversion is sold, the law will apportion 
 the rent, under the rule that rent may be apportioned as to estate, and 
 the right of apportionment attaches the moment the sale is made."^ 
 On the death of a lessor, rent has to be apportioned among the heirs 
 on whom the estate is cast, and in such case it is the duty of the 
 tenant to pay each party the proportion of rent to which he is en- 
 titled,^ ^^ or the lessor may create the necessity for apportionment by 
 grant, as where he grants a part to one or the whole to several differ- 
 ent persons. ^^^ 
 
 However, the law will not apportion rent in favor of a wrong-doer ; 
 but the owner of a reversion has the right to sell the whole or any 
 part of it. The exercise of this right is not wrongful, and therefore, 
 in the case of a sale of a part of the reversion, the law will apportion 
 the rent.^^" 
 
 On the transfer of an undivided interest, rent should be appor- 
 tioned, as where leased premises are owned by tenants in common and 
 one of the joint lessors conveys his interest in the reversion to the 
 
 >8^ Emmes V. Feeley, 132 Mass. 346. Cooke, 56 Md. 51; Biddle v. Huss- 
 
 *'= Baker v. Jeffers, 4 Cranch C. C. man, 23 Mo. 597, 602; Cheairs v. 
 
 707, 2 Fed. Cas. No. 772. Coats, 77 Miss. 846, 28 So. 728; 
 
 '^People V. Dudley, 58 N. Y. 323. Nellis v. Lathrop, 22 Wend. (N. Y.) 
 
 ^"Linton v. Hart, 25 Pa. St. 193, 121, 34 Am. Dec. 285; Shultz v. 
 
 64 Am. Dec. 691; Reed v. Ward, 22 Spreain, 1 Civ. Cas. Ct. App. (Tex.), 
 
 Pa. St. 144; Crosby v. Loop, 13 III. § 916. 
 
 625; Leitch v. Boyington, 84 111. ''^ Crosby v. Loop, 13 111. 625. 
 
 179; Newall v. Wright, 3 Mass. 138, ^'=' Crosby v. Loop, 13 111. 625. 
 
 3 Am. Dec. 98; Keay v. Goodwin, ""Cheairs v. Coats, 77 Miss. 846, 
 
 16 Mass. 1; Montague v. Gay, 17 28 So. 728; Linton v. Hart, 25 Pa. 
 
 Mass. 439; Dreyfus v. Hirt, 82 Cal. St. 193, 196. 
 
 621, 23 Pac. 193; Worthington v.
 
 1 
 
 § 669] REXT AND ITS RECOVERY. 776 
 
 lessee.^^^ The result would be the same where two owners of separate 
 but adjoining tracts executed a lease covering both parcels, and one 
 subsequently conveyed his reversionary interest to the lessee. ^®^ In 
 both these cases the covenant to pay rent would be extinguished to the 
 extent that the obligor and obligee were the same person. 
 
 Where rent is apportioned by a transfer of part of a reversion, the 
 transferee may sue in covenant for the whole rent, although his re- 
 covery will be limited to the portion to which he is entitled,^^^ the 
 general principle being that, after an apportionment, the tenant is 
 liable to separate actions and distresses."* This doctrine of appor- 
 tionment has even been applied where the lease covered both real and 
 personal property, and the real property had been sold on an execu- 
 tion against the lessor. ^^^ 
 
 If made without the concurrence of the tenant, the apportionment 
 of rent between different holders of parts of a reversion should be 
 made by a jury, and it has been declared that this was the only mode 
 for apportionment in such case.^^^ But where all the parties entitled 
 to the rent join in making a demand, it seems that the tenants must 
 pay or refuse to do so at their peril, they not being entitled to resist 
 payment till the apportionment has been made by a jury. Such a 
 doctrine was applied by the New York court to a testamentary division 
 of rents between heirs and executors.^®^ 
 
 § 669. Where a lessee assigns part of his interest, the rent may be 
 apportioned between the parties holding the premises, and the lessor 
 may sue the assignee in covenant for his proportion. This necessarily 
 follows from a general provision that the assignee shall be liable in 
 
 "*Hill v. Reno, 112 111. 154. is said: "Nor can it be maintained 
 
 »' Higgins V. California &c. Co., that S. by the terms of his will ap- 
 
 109 Cal. 304, 41 Pac. 1087. portioned the rent, in the sense 
 
 193 Worthington v. Cooke, 56 Md. claimed by . . . counsel, between 
 
 51; Dreyfus v. Hirt, 82 Cal. 621, 23 his son and his executor, by devising 
 
 Pac. 193; Walter v. Maunde, 1 J. & to the former the lots Nos. 158, 160 
 
 W. 181. Third avenue, and bequeathing to 
 
 "* De Coursey v. Guarantee Trust the latter the leasehold interest in 
 
 &c. Co., 81 Pa. St. 217. the lots Nos. 152, 154 Third avenue. 
 
 "° Buffum V. Deane, 4 Gray The rent remained an entirety and 
 
 (Mass.) 385. unapportioned so far as the tenants 
 
 "*= Nellis V. Lathrop, 22 Wend. (N. were concerned. The fact that it 
 
 Y.) 121; Oakley v. Schoonmaker, 15 was to be divided or distributed. 
 
 Wend. (N. Y.) 226; Bliss v. Collins, after payment, between the heir at 
 
 5 B. & Aid. 876, 4 Mad. 235. law and the executor was a matter 
 "' People V. Stuyvesant, 3 Thomp. which in no way affected" the ten- 
 
 6 C. (N. Y.) 179, in which case it ants.
 
 777 APPORTIONMENT. [§ 6GQ 
 
 debt for the rent; for, if the rent could not be apportioned, the right 
 of the lessor to the rent could be defeated by conveying the estate to 
 two or more persons.^''® It is settled that a landlord may declare 
 against an assignee of his lessee for a share of the rent reserved in the 
 lease proportioned to the relative value of the part held by assign- 
 ment.^^^ Where a lessee surrenders part of the leased premises to the 
 lessor, the rent may, upon the same principle, be apportioned.^"" Lord 
 Coke lays it down that such rent services as were not within the 
 statute Quia emptores were apportionable at common law; "as, if a 
 man maketh a lease for life or years, reserving a rent, and the lessee 
 surrender a part to the lessor, the rent shall be apportioned."^"^ 
 
 Furthermore, wdiere there is an eviction by paramount title from a 
 part of the demised premises, it has been held that the rent should be 
 apportioned.^"^ Thus, in a case where a part of land covered by a 
 lease was recovered in ejectment against the lessor, and the lessee took 
 a lease from the plaintiff in the ejectment suit, and continued to 
 occupy the whole tract, it was held that the lessee was entitled to an 
 apportionment of the rent reserved in the first lease.^"^ The same 
 principle would seem to apply where the tenant never obtained pos- 
 session of the entire premises. But the failure of a landlord to give 
 possession of the whole premises leased, as he had agreed to do, de- 
 prives him of the right which the law conceded to him of distraining 
 for the rent of that portion of the premises actually occupied, and 
 the only remedy the landlord has is by an 'action for use and occupa- 
 tion for such portion. The landlord himself has put it out of the 
 tenant's power to tender the amount due.^"* 
 
 The apportionment of rent reserved in a lease or grant among sev- 
 
 "' Daniels v. Richardson, 22 Pic. =»=Fillebrown v. Hoar, 124 Mass. 
 (Mass.) 565; Montague v. Gay, 17 580; Fitchburg &c. Mfg. Co. v. Mel- 
 Mass. 439; Demainville v. Mann, 32 ven, 15 Mass. 268; Halligan v. Wade, 
 N. Y. 197, 88 Am. Dec. 324; Van 21 111. 470, 74 Am. Dec. 108; Hege- 
 Rensselaer v. Bradley, 3 Denio (N. man v. McArthur, 1 E. D. Smith 
 Y.) 135, 45 Am. Dec. 451; Aster v. (N. Y.) 147; Carter v. Burr, 39 
 Miller, 2 Paige (N. Y.) 68, 78; Barb. (N. Y.) 59; Collins v. Kara- 
 Van Rensselaer v. Jones, 2 Barb, topsky, 36 Ark. 316; Tunis v. 
 (N. Y.) 643; Main v. Davis, 32 Barb. Grandy, 22 Gratt. (Va.) 109; Mc- 
 (N. Y.) 461; Stevenson v. Lombard, Fadin v. Rippey, 8 Mo. 738. 
 2 East 575. -<« Poston v. Jones, 2 Ired. Eq. (N. 
 
 "'Pingrey v. Watkins, 15 Vt. 479; Car.) 350, 38 Am. Dec. 683. 
 
 Van Rensselaer v. Bradley, 3 Denio -"^ Hatfield v. Fullerton, 24 111. 
 
 (N. Y.) 135, 45 Am. Dec. 451. 278; Lawrence v. French, 25 Wend. 
 
 '""Ehrman v. Mayer, 57 Md. 612. (N. Y.) 443. 
 
 ^'^Coke Litt. 148a.
 
 1 
 
 §■ 670] REXT AXD ITS RECOVERY. 778 
 
 eral assignees of the lessee must be according to the value of the 
 several parts held by each, and not according to the quantity or num- 
 ber of acres.^"^ But if there is no proof of the relative value, the 
 premises will be presumed to be of equal value, and the rent will be 
 apportioned according to the cjuantity of land held by each.^*^^ The 
 liability of the assignee of the lease is measured by the extent of his 
 possessory right, and not by the extent of his possession. Thus, if he 
 was assigned by one of two lessees an undivided half interest, he is 
 only liable for half the rent reserved in the lease, although he has had 
 exclusive occupation of the whole premises.^**^ In New York, how- 
 ever, a contrary rule seems to prevail, and consequently an assignee of 
 an undivided two-thirds interest of a term, created by lease reserving 
 rent, in possession of the entire premises, is liable to the owners of 
 the reversion in fee for the entire rent.'°^ Where assignments of un- 
 divided interests are made by separate instruments, the assignees are 
 not jointly liable for the whole rent, but each is severally liable for a 
 part only, according to his interest in the premises.^°^ 
 
 Where a lease covers both land and chattels, and the chattels are 
 destroyed, the right of the lessee to apportionment depends on whether 
 the lessor is responsible for the loss in any way. Where the lands are 
 recovered against the lessor, the lessee shall hold the goods to the end 
 of the term, and the rent shall be apportioned ; likewise, where a negro 
 slave included in the lease of a mill as miller had been previously 
 emancipated by the lessor, rent should be apportioned, and the lessee 
 could show these facts under a plea of 7iil dehet.^^^ But where sheep 
 included in a lease of a farm die without fault on the part of either 
 the lessor or lessee, it would seem, both on principle and the weight of 
 authority, that rent in such a case should not be apportioned in the 
 face of an express covenant to pay. The reason for this is that there 
 has been no eviction by an elder title."^ 
 
 2»5Van Rensselaer v. Gallup, 5 an absolute assignee, it is a depart- 
 Denio (N. Y.) 454; Newton v. Wil- ure from the common law. Bab- 
 son, 3 H. & M. (Va.) 470. cock v. Scoville, 56 111. 461. 
 
 ^Van Rensselaer v. Jones, 2 =*" Babcock v. Scoville, 56 111. 461. 
 
 Barb. (N. Y.) 643. ^"Newton v. Wilson, 3 H. & M. 
 
 =°^St. Louis Pub. Schools v. Boat- (Va.) 470, 479; Year Book 12, H. 
 
 men's Ins. &c. Co., 5 Mo. App. 91; VIII, ch. 11, pi. 5; Brooke's Abr., 
 
 Babcock v. Scoville, 56 111. 461. tit. Apportionment, pi. 24. Contra 
 
 2°^ Damainville v. Mann, 32 N. Y. Gilbert Rents, p. 176. 
 
 197, 88 Am. Dec. 324. Of this case ^^ Scott v. Scott, 18 Grat. (Va.) 
 
 it has been said that, in so far as 150-176. See also, Newton v. Wil- 
 
 it holds that an entry into posses- son. 3 H. & M. (Va.) 470, 479; Tav- 
 
 sion is necessary to create a liabil- erner's Case, 1 Dyer 56a. 
 ity to pay rent on the part of
 
 779 APPOETIONMENT. [§ G70 
 
 If a person other than the lessee is in possession, not in his own 
 right as a sub-lessee or assignee, but simply as an agent to manage the 
 property, he will not be charged with his proportionate part of the 
 rent, even though apportionment was provided for by statute.^^^ 
 
 § 670. The rent, which follows the reversion as an Incident, is the 
 rent which falls due subsequent to the transfer. If the lessor dies 
 before rent is payable, it descends to his heirs, who are the reversion- 
 ers ; but if he dies after it is due, it goes to his personal representative, 
 as part of his personal estate. It seems to have been long and well 
 settled that a general grant of the reversion does not pass the rent past 
 due. Such rent is a debt, due to the lessor and a part of his per- 
 sonalty. ^^^ Where land subject to a lease is sold, the seller is entitled 
 to all rents past due at the time of sale ; the purchaser, to all that fall 
 due afterward. This is the rule of law where there is no different 
 understanding entered into by the parties.^ ^* 
 
 A quitclaim deed from a lessor to his lessee of the leased premises 
 does not operate to release and discharge claims for rent already ac- 
 crued, simply by reason of the legal effect of the conveyance of the 
 property out of which the rent has arisen. The prior rental of the 
 property is not an appurtenance connected with it or belonging to it, 
 but an entirely independent debt. It makes no difference if it hap- 
 pens that the grantee in the deed had himself been the tenant of the 
 property. It is difficult to see why a deed should be effective to con- 
 vey more, if one person is named in it as grantee, than if another is 
 so named.^^^ The converse of this rule is equally applicable, and 
 therefore, in the absence of special agreement, an assignee of a lease- 
 hold in possession of the premises upon a rent day, is under obliga- 
 tion to pay the entire instalment of rent which falls due then.^^*^ In 
 accordance with the rule that rent cannot be apportioned as to time, 
 the owner of the reversion at the time rent becomes due is entitled to 
 the entire sum then accruing, although his ownership has not extended 
 over the whole period for which the rent is paid.^^^ Where a lease is 
 
 ^- Stewart v. Perkins, 3 Ore. 508. »° Johnson v. Muzzy, 42 Vt. 708. 
 
 -'^Perkerson v. Snodgrass, 85 Ala. "^ Martineau v. Steele, 14 Wis. 
 
 137, 4 So. 752; Burden v. Thayer, 272. 
 
 n Mete. (Mass.) 76; Bank of Penn- ="' English v. Key, 39 Ala. 113; 
 
 sylvania v. Wise, 3 Watts (Pa.) Perkerson v. Snodgrass, 85 Ala. 
 
 394; Van Wicklen v. Paulson, 14 137, 4 So. 752; Martin v. Martin, 7 
 
 Barb. (N. Y.) 654; King v. Ander- Md. 368, 61 Am. Dec. 364; Dixon v. 
 
 son, 20 Ind. 385. Niccolls, 39 111. 372; Hearne v. 
 
 ="Page V. Lashley, 15 Ind. 152; Lewis, 78 Tex. 276, 14 S. W. 572. 
 Johnson v. Muzzy, 42 Vt. 708.
 
 § 6 TO] EEXT AXD ITS RECOVERY. 780 
 
 granted by a life tenant^ who dies during the term, the rents which 
 accrued previous to the death of the lessor are collectible by his per- 
 sonal representative, but those that accrued afterward under an im- m 
 plied agreement for continued occupation between the lessee and re- 
 mainderman would go to the remainderman.^^® Without deciding 
 whether a lessee of a life tenant is liable to the estate of the life ten- 
 ant for rent after the determination of the life estate, if he recog- 
 nized his promise to pay rent as binding and paid the full rent re- 
 served to the administrator of the life estate, it is clear that the rever- | 
 sioner has no claim against the estate of the life tenant for this rent or 
 for any part of it. The contract between the life tenant and his lessee 
 is not made for or in behalf of the reversioner, nor is he a party to the 
 contract. The lessee did not pay the money to the administrator of 
 the life tenant for the use of the reversioner. If the lessee has any 
 claim against the estate of the life tenant by reason of having paid 
 rent for a full term which failed, the reversioner has not succeeded by 
 assignment, or otherwise, to that claim, nor is he entitled to be subro- 
 gated to the rights of the lessee against the estate of the life tenant. ^^^ 
 In California protection against double liability has been given by 
 statute, and in that state a tenant, against whom conflicting claims for 
 rent have been made, may file a bill of interpleader against the sev- 
 eral claimants to determine their respective rights to the rent.^^'^ 
 
 Modern rules regarding the transfer of land dispense with attorn- 
 ment and the grant is at once effectual and complete. But, though 
 the grantee of a reversion is entitled to rent without attornment, the 
 tenant is protected in the payment of rent to the original landlord 
 until he has actual notice of a transfer. Such protection has been held 
 to apply to a payment of rent made in advance of the time it fell due, 
 although the reversion had been granted over before the time for pay- 
 ment under the terms of the lease.^^^ 
 
 A law providing that the purchaser is entitled to receive from the 
 tenant in possession the rents of the property sold, has no application, 
 the South Dakota court held, to sales made at a mortgage foreclosure, 
 either by advertisement or by action.^-^ A mortgagee, having pur- 
 
 =«* Lowrey v. Reef, 1 Ind. App. '^ Schluter v. Harvey, 65 Cal. 158, 
 
 244, 27 N. E. 626; Hoagland v. 3 Pac. 659. 
 
 Crum, 113 111. 365; Wright v. Rob- ^-'i Dreyfus v. Hlrt, 82 Cal. 621, 23 
 
 erts, 22 Wis. 161, 165; Guthmann Pac. 193; Stone v. Patterson, 19 
 
 V. Vallery, 51 Neb. 824, 71 N. W. Pick. (Mass.) 476; Farley v. Thomp- 
 
 734. son, 15 Mass. 18. 
 
 ^i' Guthmann v. Vallery, 51 Neb. ==== Rudolph v. Herman, 4 S. Dak. 
 
 824, 71 N. W. 734. 283, 56 N. W. 901.
 
 781 APPORTIONMEXT. [§ G81 
 
 chased the premises at such foreclosure sale and having, without the 
 consent of the mortgagor, collected rents from tenants thereon, is lia- 
 ble to the mortgagor for the amount collected. ^^^ 
 
 § 671. In most states of the United States there are statutes pro- 
 viding for apportionment in case the estate of the lessor is determin- 
 able on a life or on any contingency and is so determined. In the con- 
 struction of such a statute by the Massachusetts court, it was contended 
 that the words "or any contingency" were broad enough to cover a case 
 where a mortgagee, whose mortgage was senior to a lease, entered for 
 condition broken during the quarterly rent period. But the court held 
 that these words, taken in the connection in which they are used, 
 clearly referred to the happening of some event affecting the nature 
 and character of the estate itself, and an essential and necessary part 
 of it, upon which the continuance of the estate depends. The estate 
 of a mortgagor, or of an owner of an equity of redemption, is not de- 
 termined by the happening of any such event or contingency; it can 
 only be determined by his own neglect to perform his contract, or to 
 pay the debt which the mortgage is given to secure. In fact, the 
 mortgagor's estate is not absolutely determined by the entry of the 
 mortgagee; he still has a right to redeem, and if he redeems, he 
 could collect the entire rent.^^* Under a similar statute in North 
 Carolina it was held that a foreclosure was not such an uncertain 
 event as to entitle the mortgagor lessor to an apportionment of a 
 crop which is planted after the sale, and on which he has made ad- 
 vances with knowledge of the foreclosure deeree.^^^ In Kentucky a 
 statute of this nature was held to apply to a letting on the shares, the 
 executor of the life tenant being entitled to recompense for seed 
 grain supplied before the crop rent was apportioned between him 
 and the remainderman.^-*^ Under the New York law making the right 
 to rent follow the o^vnership of the estate, the common law rule is 
 changed, and the vendor and purchaser are each entitled to the rent 
 earned during their respective ownerships.-^^ So if a lessee, after re- 
 ceiving an assignment of the lease, pays rent for a full month under 
 protest, he is entitled to restitution of such portion as was earned 
 after the transfer.^-* 
 
 ^''Siems v. Pierre Sav. Bank, 7 S. -"Redmon v. Bedford, 80 Ky. 13, 
 
 D. 338, 64 N. W. 167. 3 Ky. L. R. 511. 
 
 '=* Adams v. Bigelow, 128 Mass. ==^ Eddy, In re, 10 Abb. N. C. (N. 
 
 365; Knowles v. Maynard, 13 Mete. Y.) 396. 
 
 (Mass.) 352. -^ Eddy, In re, 10 Abb. N. C. (N. 
 
 ''^ Spruill V. Arrington, 109 N. Car. Y.) 396. 
 192, 13 S. E. 779.
 
 § 673] RENT AXD ITS RECOVERY. 783 
 
 IV. Set-off and Recoupment. 
 
 § 672. The cost of repairs made by a tenant with the consent of 
 the landlord and for which the landlord agreed to pay may be set off 
 
 against the rent account by the tenant,--" but in the absence of agree- 
 ment the tenant has no right to deduct the cost of repairs from the 
 rent, since the landlord is under no obligation to make the repairs. ^^^ 
 The same is obviously true where the lease places the burden of mak- 
 ing repairs on the lessee. -^^ But when the lessor has bound himself 
 to make repairs by an express contract to that effect, the lessee may 
 make the needed repairs himself and charge the expenditure to the 
 landlord; or when sued for rent he may recoup for damages caused 
 by the lack of repair in diminution of rent f^~ but the tenant is under 
 no obligation to make the repairs and his recovery is not limited to 
 the amount of the expenses which he would thereby incur.-^^ In that 
 case the amount of recovery would be the sum by which the rental 
 value of the premises have been lessened ;^^'* the tenant is entitled 
 to recover for all damage which is the natural and proximate result 
 of the breach,-^^ being such damages as are traceable solely to a 
 breach of the contract.-^® Thus, in an action for rent under a lease 
 of a farm, defendant set up a counter-claim for damages for plain- 
 tiff's failure to perform an agreement to construct ditches. The 
 proper amount of recovery for such breach would be the defendant's 
 loss by having to work an undrained instead of a drained farm; the 
 measure of damages would not be limited to the cost of putting in a 
 drain.-^'^ 
 
 The California statute, requiring a landlord to keep premises in a 
 habitable condition, and allowing a tenant to expend one month's 
 rent in making repairs which the landlord has neglected to make, 
 is not equivalent to a covenant to repair by the landlord, and does 
 not give the tenant the right to recoup that amount in damages after 
 he has remained in possession and failed to make the repairs.^^® 
 
 '^^ Trathen v. Kipp, 15 Colo. App. =^* Taylor v. Lehman, 17 Ind. App. 
 
 426, 62 Pac. 962. 585, 46 N. E. 84, 47 N. E. 230. 
 
 ^^o Bonaparte v. Thayer, 95 Md. ='= Culver v. Hill, 68 Ala. 66. 
 
 548, 52 Atl. 496. ='" Stewart v. Lanier House Co., 75 
 
 "^Hovey v. Walker, 90 Mich. 527, Ga. 582. 
 
 51 N. W. 678. ''' Spencer v. Hamilton, 113 N. 
 
 =" Ross V. Stockwell, 19 Ind. App. Car. 49, 18 S. E. 167. 
 
 86, 49 N. E. 50; Kimball v. Doggett, =^* Moroney v. Hellings, 110 Cal. 
 
 62 111. App. 528. 219, 42 Pac. 560. 
 
 "^Vandegrift v. Abbott, 75 Ala. 
 487; Culver v. Hill, 68 Ala. 66. 
 
 1
 
 "^SS SET-OFF AND RECOUPMENT. [§ 673 
 
 In order to recoup for damages because a leased building was not 
 completed in a proper and suitable manner to meet the purposes for 
 which it was intended to be used and occupied, the indenture of lease 
 must contain some specification of manner of completion, so that 
 on comparing the building as completed with the terms as to man- 
 ner it may be shown that it did not fulfil the covenant of the les- 
 
 sor 
 
 239 
 
 § 673. The extent of the right of a tenant entering or remaining 
 in possession of the premises after the failure of the landlord to re- 
 pair is to recoup the demand for rent because of the depreciation of the 
 value of the rent by reason of the breach of agreement to repair. The 
 right to abandon for such cause must be availed of at once, and if the 
 tenant remains in possession under the lease for any length of time, 
 he cannot abandon the possession because of the breach of covenant 
 to repair.^*" As long as the lessee remains in possession the failure 
 to put in improvements as agreed would not relieve the lessee from 
 his liability to pay rent ; at most, such failure gives him only a claim 
 for damages.2*i However, it has been held that if there is a defect in 
 construction, which prevented a leased house from being used, and 
 this defect is unknown to the lessees, they may show in answer to a 
 claim for rent, that notwithstanding they took possession and ex- 
 pressed themselves satisfied with the condition of the premises, they 
 were not in fact fit for occupation, and that therefore the term did 
 not commence with their possession. If the defect were an obvious 
 one, taking possession would be a waiver of objection on account 
 of it.2*2 
 
 A lessee may, by suing for breach of a covenant to complete a 
 building, elect to treat the covenant to pay rent as an independent 
 covenant. It then becomes unnecessary to decide whether the cove- 
 nant to pay the rent was dependent upon the covenant to complete the 
 building at the time agreed, so as to make such failure a defense to an 
 action for rent.^**^ If lessees enter and occupy premises before the 
 completion of stipulated repairs, they thereby waive their right to 
 performance as a condition precedent to the beginning of the term.-** 
 
 "'Rutland &c. Co. v. King, 51 Vt, =" Clarke v. Spaulding, 20 N. H. 
 
 462. 313. 
 
 ^^''Kiernan v. Germain, 61 Miss. =" Knapp v. Anderson, 71 N. Y. 
 
 498; § 324. See Kimball v. Doggett, 466. 
 
 62 111. App. 528. =" Bonaparte v. Thayer, 95 Md. 
 
 ^"'Long V. Gieriet, 57 Minn. 278, 548, 52 Atl. 496. 
 59 N. W. 194.
 
 §' 673] RENT AND ITS RECOVERY. 784 
 
 But payment of rent under threat of ejectment is not a waiver of 
 the right to insist on having the repairs, stipulated for in a parol 
 lease, made, and the tenant can recoup in damages for the failure to 
 repair when subsequently sued for rent,^*^ the cases holding that 
 payment of rent for the greater part of the term will not deprive him 
 of the right to counter-claim his damages for the entire term.^*'' In 
 an early Illinois case, however, it was held that a lessor could not 
 recover on the special agreement of leasing unless he had performed 
 his part.^*'' 
 
 But according to the general rule of the common law, a covenant 
 to pay rent and a covenant to make proper repairs are independent 
 of each other, and the failure of the lessor to keep his covenant does 
 not relieve the lessee from his obligation to pay the rent while he 
 remains in possession. It is familiar law that the breach on the part 
 of the landlord by failing to make repairs does not furnish any ground 
 for the tenant to resist the payment of rent while he occupies the 
 premises.-*^ But the liability of the lessee to pay the rent is subject 
 to a deduction of any damage he sustained from the failure to repair-*^ 
 or he may elect to bring a separate action for the recovery of dam- 
 ages. ^^^ The mode in which such a defense is availed of in an action 
 for rent is by a plea of recoupment, which is more restricted than a set- 
 off, in that it must arise from the same contract upon which the 
 original claim is based, but more elastic in that the damages claimed 
 need not be liquidated. The most familiar case in which recoupment 
 is allowed in suits between landlord and tenant is where a landlord, 
 suing for rent, has failed to perform his covenant to repair, and the 
 general doctrine in such case is that the tenant may recoup for dam- 
 ages caused by breach of the landlord's covenant.^" While the non-ob- 
 
 "= Breese v. McCann, 52 Vt. 498. Horton v. Miller, 84 Ala. 537, 4 So. 
 
 =*•= McAlester v. Landers, 70 Cal. 370; Murphy v. Farley, 124 Ala. 279, 
 
 79, 11 Pac. 505; Cook v. Soule, 56 27 So. 442; McAlester v. Landers, 70 
 
 N. Y. 420. Cal. 79, 11 Pac. 505; Livingston v. 
 
 =" Baird V. Evans, 20 111. 29. L'Engle, 27 Fla. 502, 8 So. 728; 
 
 -*^ Young V. Burhans, 80 Wis. 438, Stewart v. Lanier House Co., 75 Ga. 
 
 50 N. W. 343; Allen v. Culver, 3 582; Reno v. Mendenhall, 58 111. 
 
 Denio (N. Y.) 284; Nichols v. Du- App. 87; Reeves v. Hyde, 14 111. 
 
 senbury, 2 N. Y. 283. App. 233; Kimball v. Doggett, 62 111. 
 
 =" Young v. Burhans, 80 Wis. 438, App. 528; Clark v. Ford, 41 111. App. 
 
 50 N. W. 343. 199; Ross v. Stockwell, 19 Ind. App. 
 
 ==» McAlester v. Landers, 70 Cal. 86, 49 N. E. 50; Taylor v. Lehman, 
 
 79, 11 Pac. 505; Kelsey v. Ward, 38 17 Ind. App. 585, 46 N. E. 84, 47 N. 
 
 N. Y. 83. E. 230; Pioneer Press Co. v. Hutch- 
 
 =" Culver v. Hill, 68 Ala. 66; Rowe inson, 63 Minn. 938, 65 N. W. 938; 
 
 V. Baber, 93 Ala. 422, 8 So. 865; Long v. Gieriet, 57 Minn. 278, 59 N. 
 
 I
 
 785 SET-OFF AND RECOUPMENT. [§ 6T4 
 
 servance of covenants to repair may not be the subject of set-off in an 
 action for rent, yet the breach of these covenants constitutes a good 
 defense by way of recoupment. This principle is understood to be 
 that in actions of assumpsit to recover damages for the breach of an 
 agreement, the defendant may set up by way of recoupment, under a 
 proper notice, that the plaintiff has violated the same agreement, and 
 thus defeat a recovery for more than the balance. The rule is one of 
 obvious equity, and is susceptible of ready and convenient application 
 on the trial. It adjusts, by one action, mutual and adverse claims 
 growing out of the same contract, and thus prevents the needless 
 multiplication of suits.-^^ Although a lessee has covenanted abso- 
 lutely to pay rent, he can recoup for damages caused by the lessor's 
 failure to perform his covenant to rebuild after a destruction by fire."^^ 
 The important limitation on the doctrine of recoupment is that the 
 damages must arise out of a breach of the same contract.^^'* An at- 
 tempt to recoup damages for breach of a verbal agreement to repair, 
 the lease being under seal, failed and the reason assigned was that a 
 lease under seal could not be varied by parol.^^^ On the other hand, 
 recoupment has been allowed for breach of a collateral agreement to 
 repair, entered into at the time of making the contract of renting. 
 The two demands spring out of the same transaction, and there is a 
 natural equity that the one should compensate the other, and that only 
 the balance should be recoverable.^^*' 
 
 § 674. Furthermore, a lessee sued for rent may recoup in damages 
 for a false allegation of the landlord.-" A lessee, after accepting a 
 lease and entering into possession of the premises, upon discovering a 
 fraudulent representation by the lessor of a material fact, is not com- 
 pelled to give up the premises and rescind the lease, but he may bring 
 an action against the lessor for deceit, there being nothing in the rela-' 
 
 W. 194; Kiernan v. Germain, 61 ^* Livingston v. L'Engle, 27 Pla. 
 
 Miss. 498; Kelsey v. Ward, 38 N. Y. 502, 8 So. 728. 
 
 83; Breese v. McCann, 52 Vt. 498. =" Reeves v. Hyde, 14 III. App. 233. 
 
 === Nichols V. Dusenbury, 2 N. Y. =»" Vandegrift v. Abbott, 75 Ala. 
 
 283; Wright v. Lattin, 38 III. 293; 487. 
 
 Lunn v. Gage, 37 111. 19; Whitbeck =" Dennison v. Grove, 52 N. J. L. 
 
 V. Skinner, 7 Hill (N. Y.) 53; 144, 19 Atl. 186; May wood v. Logan, 
 
 Westlake v. DeGraw, 25 Wend. (N. 78 Mich. 135, 43 N. W. 1052; Wilkin- 
 
 Y.) 669, 672; Batterman v. Pierce, son v. Clausen, 29 Minn. 91, 12 N. 
 
 3 Hill (N. Y.) 171; Fowler v. Payne, W. 147; McCoull v. Herzberg, 33 111. 
 
 49 Miss. 32, 73. App. 542. 
 
 253 Fowler v. Payne, 49 Miss. 32. 
 Jones L. & T.— 50
 
 § 675] EEXT AXD ITS RECOVERY. 78(> 
 
 tion of landlord and tenant, or in the rules of law which control 
 that relation, to preclude him from so doing. Aside from the common 
 law rule, which bound parties who solemnly contracted by deed to the 
 presumption of full consideration, there would seem to be no reason 
 why a reduction of damages for partial failure of consideration, or 
 recoupment should not be allowed. And where, by statute, a seal is 
 no longer of its former conclusive force, a suit on a contract for rent, 
 like ordinary parol agreements, should be subject to that course of 
 defense, as it avoids circuity of action.^^^ Thus, for damages caused 
 by the landlord's false statement in regard to the purity of water in a 
 well, the tenant could recoup in damages when sued for rent.^^'* 
 
 But the landlord is not an insurer unless an express clause in the 
 lease makes him so, and therefore he is not subject to recoupment if 
 he acts in good faith,^®'' or where the injury was caused by an un- 
 usual storm which flooded the premises through a sewer adequate in 
 ordinary weather.^^^ Injury to premises by a freshet is not a ground 
 for set-off in an action on an express covenant.-''- 
 
 V. Abatement of Bent. 
 
 § 675. The destruction by fire of buildings upon leased premises 
 does not relieve the lessee from his obligation upon an express cove- 
 nant to pay rent, according to the well-settled rule of the common 
 law.^®^ "We think it may safely be said," remarked the New York 
 
 ^"Deniiison v. Grove, 52 N. J. L. head. 106 Ga. 434, 32 S. E. 349; 
 
 144, 19 Atl. 186; Lord v. Brookfield, Buerger v. Boyd, 25 Ark. 441; Cow- 
 
 37 N. J. L. 552. Prior to the statute ell v. Lumley, 39 Cal. 151; Smith 
 
 New Jersey followed the common- v. McLean, 123 111. 210, 14 N, E. 50; 
 
 law doctrine in regard to actions on Harris v. Heackman, 62 Iowa 411, 
 
 sealed instruments and did not al- 17 N. W. 592; Womack v. McQuarry, 
 
 low recoupment. Hunter v. Reiley, 28 Ind. 103; Vale v. Trader, 5 Kan. 
 
 43 N. J. L. 480. App. 307, 48 Pac. 458; Redding v. 
 
 *»Maywood v. Logan, 78 Mich. Hall, 1 Bibb (Ky.) 536; Helburn v. 
 
 135, 43 N. W. 1052. Mofford, 7 Bush (Ky.) 169; Lieber- 
 
 '^''McCoull V. Herzberg, 33 111. thai v. Montgomery, 121 Mich. 369, 
 
 App. 542. 80 N. W. 115; Fowler v. Bott, 6 
 
 "^Wilkinson v. Clauson, 29 Minn. Mass. 63; Lanpher v. Glenn, 37 
 
 91, 12 W. N. 147. Minn. 433, 33 N. W. 10; Taylor v. 
 
 ="Niedelet v. Wales, 16 Mo. 214. Hart, 73 Miss. 22, 18 So. 546; Fowler 
 
 ^"^ Chamberlain v. Godfrey, 50 Ala. v. Payne, 49 Miss. 32, 79; Coles v. 
 
 530, 533; Cook v. Anderson, 85 Ala. Celluloid Mfg. Co., 39 N. J. L. 326; 
 
 99, 4 So. 713; Warren v. Wagner, 75 Davis v. George, 67 N. H. 393, 3^ 
 
 Ala. 188; Fleeming v. King, 100 Ga. Atl. 979; Hallett v. Wylie, 3 Johns. 
 
 449, 28 S. E. 239; Mayer v. More- (N. Y.) 44; Austin v. Field, 7 Abb.
 
 787 ABATEMENT OF RENT. [§■ 675 
 
 court in 1808, ''that there is not a case in the books where the destruc- 
 tion of the demised premises by fire has been held to excuse the tenant 
 from the payment of the rent on an express covenant; but in every 
 case where a defense on that ground has been attempted, it has 
 failed/'264 ^^ common law a tenant is bound to pay rent although 
 the premises are destroyed by inevitable casualty and can have no 
 abatement for such destruction without an express provision to that 
 effect. The reason assigned for this rule are twofold, (1) it is said 
 to rest on the express covenant to pay rent; (2) it is because the ten- 
 ant is entitled to casual profits and therefore must stand casual losses. 
 But of these two, the first is the better reason.-*"^ 
 
 In Paradyne v. Jayne-"^^ an action of debt was brought for rent 
 upon a lease for years, and the defendant pleaded by way of excuse 
 for the non-payment of rent, that he had been driven from the 
 premises by the public enemies. The case was fully and ably argued 
 before the King's Bench during the time of the civil wars and the 
 reign of Charles I. It was insisted that by the law of reason a man 
 ought not to pay rent when he could not enjoy, without any default 
 on his part, the land demised to him, and that the civil and canon law 
 exempted the party in such a case. But Eolle — author of the abridg- 
 ment — overruled the plea and held that neither the hostile army nor 
 an inundation would exempt the tenant from paying rent. The same 
 doctrine has been held to this day and it is well settled, that upon an 
 express covenant to pay rent, the loss of the premises by fire or in- 
 undation, or external violence, will not exempt the party from his 
 obligation to pay rent.^*'^ For where the law creates a duty or charge, 
 and the party is disabled from performing it without fault on his part, 
 
 Pr. N. S. (N. Y.) 29; Linn v. Ross, Carter v. Cummings, 1 Cha. Ca. 83; 
 
 10 Ohio 412; Harrington v. Watson, § 404. 
 
 11 Ore. 143, 3 Pac. 173; Bussman v. =•=* Hallett v. Wylie, 3 Johns. (N. 
 Ganster, 72 Pa. St. 285; Dyer v. Y.) 44. 
 
 Wightman, 66 Pa. St. 425; Magaw ="= Redding v. Hall, 1 Bibb (Ky.) 
 
 v. Lambert, 3 Pa. St. 444; Coogan 536; Diamond v. Harris, 33 Tex. 634. 
 
 V. Parker, 2 S. Car. 255; Hicks v. Where there was a lease of an iron 
 
 Parham, 3 Hayw. (Tenn.) 224; bank with the exclusive right to 
 
 Banks v. White, 1 Sneed (Tenn.) mine iron ore therefrom, lessee is 
 
 614; Diamond v. Harris, 33 Tex. bound on an absolute covenant to 
 
 634; Thompson v. Pendell, 12 Leigh pay rent whether there is any ore 
 
 (Va.) 591; Richmond Ice Co. v. or not. Clark v. Midland &c. Co., 21 
 
 Crystal Ice Co., 99 Va. 239, 37 S. E. Mo. App. 58. 
 
 851; Porter v. Tull, 6 Wash. 408, 33 =«" Alley n Rep. 26. 
 
 Pac. 965, 36 Am. St. 172, 22 L. R. A. =" Robinson v. L'Engle, 13 Fla. 
 
 613; Doe v. Sandham, 1 Term R. 482; Coy v. Downie, 14 Fla. 544. 
 705; Paradine v. Jane, Aleyn 27;
 
 § 675] RENT AND ITS RECOVERY. 788 
 
 a different rule prevails. In the absence of an express covenant to 
 pay, a tenant is not liable for rent, after the destruction of the 
 premises. So leased property having been destroyed by the public 
 enemy in time of war, and the lessees having been deprived of its use 
 and enjoyment without their fault, they ought to that extent to be 
 released from their liability to pay rent.^"^ 
 
 It does not matter whether the lease is under seal or not, so long 
 as the promise is an express one to pay rent, and the expression "for 
 $300 per year payable annually" and signed by the lessee is an ex- 
 press promise to pay rent.^*''^ Injustice or hardship to the lessee is 
 not a ground for altering the rule, and the tenant has been held for 
 rent, although he could not replace a frame building, which was de- 
 stroyed, because of a fire ordinance in the city which required brick 
 or stone buildings.^^" 
 
 A tenant is not excused from his express covenant to pay rent by 
 the destruction of the premises by tempest, in the absence of an ex- 
 cepting clause.^'^^ Where a warehouse became untenantable by reason 
 of high water, but the lease contained no stipulation for abatement 
 of rent in such contingency, the entire rent could be recovered. -■^- 
 The failure of a right to take water from a spring included in a lease 
 did not release a lessee from his unconditional covenant to pay a cer- _^ 
 tain sum as rent.~"^ '). 
 
 For a landlord to pull down walls and erect an enclosure around ^ 
 burned premises pursuant to municipal directions does not amount to 
 an eviction of the lessee, who continues liable on his express covenant 
 to pay rent.^^* The same principle applies where a lessee enters to 
 repair premises injured by a flood, being under no obligation to 
 do so.^'^^ 
 
 "Until the term commences and possession is given of the demised 
 premises, the lease is only an executory contract on the part of the 
 lessor ; for the breach of which he may be prosecuted in the same man- 
 ner as upon any other executory contract. And so it is on the part of 
 the lessee. Before the term commences he has only an interesse termini 
 and no estate ; a right to a term at a future day ; but there is no priv- 
 
 =^ White v. Stuart, 76 Va. 546. Land Co., 2 Tex. Civ. App. 326, 21 
 
 ««" Linn v. Ross, 10 Ohio 412. S. W. 959. 
 
 '""Harris v. Heackman, 62 Iowa "^ Jones v. Springfield &c. Co., 65 
 
 411, 17 N. W. 592. Mo. App. 388. 
 
 ^'^ Peterson v. Edmonson, 5 Harr. ^* Fleming v. King, 100 Ga. 449. 
 
 (Del.) 378. 28 S. E. 239. 
 
 "^Jemison v. McDaniel, 25 Miss. ""Peterson v. Edmonson, 5 Harr. 
 
 83; Galveston City R. Co. v. Gulf (Del.) 378.
 
 789 
 
 ABATEMEXT OF KENT. 
 
 [§ 676 
 
 ity of estate between parties until the term commences and joossession 
 is given." Hence the lessee is not liable for rent when buildings de- 
 mised burn before he enters into possession.-''^ 
 
 § 676. When premises have burned down and the landlord has col- 
 lected insurance, a court of equity will not prevent him from collect- 
 ing the rent even though he refuses to rebuild, if he should be under 
 no covenant to repair.- '^ It does not atfect the application of the com- 
 mon law rule that the lessor has insured the buildings against fire 
 and collected the insurance on them.-'^^ Furthermore, a provision that, 
 in case of destruction by fire, the lessee shall be relieved from his 
 covenant to repair does not prevent him from continuing liable for 
 rent. It was not agreed that the destruction should amount to a 
 termination of the lease.-"^ A statutory obligation on the landlord 
 to repair, not extending to rebuilding, would not change the rule as 
 to continued liability for rent after destruction of the premises,-^'' 
 
 A covenant by a lessor to build on land included in the leased prem- 
 ises does not bind him to rebuild in case of the destruction of the 
 premises by fire, and in spite of the destruction the lessee would 
 continue liable on his express covenant to pay rent.^®^ 
 
 -'«Wood V. Hubbell, 5 Barb. (N. 
 Y.) 601. 
 
 =" Gluck V. Baltimore, 81 Md. 315, 
 32 Atl. 515; Leeds v. Cheetham, 1 
 Sim. 146; Loft v. Dennis, 1 E. & E. 
 474, 102 E. C. L. 472; Belfour v. 
 Weston, 1 Term R. 310; Holtzapffel 
 v. Baker, 18 Ves. 115. In Kansas a 
 different rule seems to prevail. Jus- 
 tice Brewer says: "Insurance, now 
 so common, works a ctiange in the 
 relative position of the parties. 
 Formerly the landlord was, to a 
 great extent, at the mercy of the 
 tenant, who could put an end to his 
 liability by firing the building with- 
 out probability of detection. The 
 burden of such a loss would fall up- 
 on him who had so little means of 
 prevention or detection; hence one 
 source of protection was to con- 
 tinue the liability for rent. But to- 
 day the rule is insurance. By this, 
 fire only changes the character of 
 the owner's property from build- 
 
 ings to money — often a welcome 
 change. And if the landlord gets 
 the value in money, which he may 
 put at interest, he certainly ought 
 not to receive rent for that which 
 has ceased to exist, and thus double 
 his profits, especially where the in- 
 surance premiums are paid by the 
 tenant." Whitaker v. Hawley, 25 
 Kan. 674. 
 
 -'' Kingsbury v. Westfall, 61 N. Y. 
 356; Sheets v. Selden, 7 Wall. (U. 
 S.) 416; Magaw v. Lambert, 3 Pa. 
 St. 444; Bussman v. Ganster, 72 Pa. 
 St. 285. 
 
 ="Ward V. Bull, 1 Fla. 271; Hill 
 V. Wilson, 15 Ky. L. R. 814; Belfour 
 V. Weston, 1 Term R. 310; Haltzapf- 
 fel V. Baker, 18 Ves. 115; Davis v. 
 George, 67 N. H. 393, 39 Atl. 979; 
 Beach v. Farish, 4 Cal. 339. 
 
 ='» Mayer v. Morehead, 106 Ga. 434, 
 32 S. E. 349. 
 
 ="Gowell v. Lumley, 39 Cal. 151.
 
 '§• 677] RENT AXD ITS RECOVERY. 790 
 
 § 677. The general rule of the common law as stated above is pred- 
 icated upon the assumption that an interest in the land or soil upon 
 which the burned buildings stood passed under the lease. The rule 
 is limited in that the destruction must not be of the entire premises 
 leased. There must be something of the subject-matter of the lease 
 remaining. For if the estate is gone, and the subject-matter or thing 
 leased no longer exists, the liability for rent ceases. For rent is a 
 certain profit, issuing out of lands and tenements corporeal, in com- 
 pensation for its use and occupation. When the land or tenement 
 ceases to exist, the rent which issues out of it, and is but an incident 
 to it, of necessity must cease.^^^ "We understand the law to be," 
 remarks the Supreme Court of Arkansas, "that where a lessee takes an 
 interest in the soil upon which a building stands, and the building 
 should be destroyed by fire, he will be held for the rent of the entire 
 property, unless he stipulates against casualties; but if he takes no 
 interest in the soil, and the building is destroyed, the rule would be 
 otherwise."^^^ When the subject-matter of an alleged lease is de- 
 stroyed, the estate of both lessor and lessee ends, the relation of land- 
 lord and tenant can no longer survive, so that an instruction wliich in 
 effect informed the jury that the leasehold estate of the tenant con- 
 tinued after destruction of the subject-matter of the lease is er- 
 roneous.^^* 
 
 In regard to when an interest in the land passes, the general rule 
 is well settled that the grant of a house, store, mill, or other building 
 carries with it the land under the building.^s^ jf ^ lessee has an 
 estate in land for a term for years, though the lessor is not bound to 
 rebuild after a destruction by fire, yet any building which he might 
 erect would become a part of the realty and would inure to the benefit 
 of the lessee during the term.-^*' A demise of the basement rooms of 
 
 =82 Chamberlain v. Godfrey, 50 Ala. 11 Ore. 143, 3 Pac. 173; Beham v. 
 
 530; McMillan v. Solomon, 42 Ala. Ghio, 75 Tex. 87, 12 S. W. 996; Por- 
 
 356, 94 Am. Dec. 654; Warren v. ter v. Full, 6 Wash. 408, 33 Pac. 965; 
 
 Wagner, 75 Ala. 188; Cook v. An- Smith v. McLean, 123 111. 210, 14 N. 
 
 derson, 85 Ala. 99, 4 So. 713; Ains- E. 50. 
 
 worth V. Ritt, 38 Gal. 89; Buerger 2S3 Buerger v. Boyd, 25 Ark. 441. 
 
 V. Boyd, 25 Ark. 441; Womack v. =**Utah Optical Co. v. Keith, 18 
 
 McQuarry, 28 Ind. 103; Shawmut Utah 464, 56 Pac. 155. 
 
 Nat. Bank v. Boston, 118 Mass. 125; =^= Blake v. Clark, 6 Me. 436; For- 
 
 Lieberthal v. Montgomery, 121 bush v. Lombard, 13 Mete. (Mass.) 
 
 Mich. 369, 80 N. W. 115; Austin v. 109; Oliver v. Dickinson, 100 Mass. 
 
 Field, 7 Abb. Pr. N. S. (N. Y.) 29; 114; Rogers v. Snow, 118 Mass. 118. 
 
 Graves v. Berdan, 26 N. Y. 498, 29 =»" Rogers v. Snow, 118 Mass. 118. 
 Barb. 100; Harrington v. Watson,
 
 791 ABATEMENT OF RENT. [§ 677 
 
 a building of several stories in height, without any stipulation, by 
 lessor or lessee, for rebuilding in case of fire or other casualty, gives 
 the lessee no interest in the land, though he pays all the rent in ad- 
 vance, and if the whole building is destroyed by fire his interest in 
 the rooms is terminated.^^^ The lessee would have no right to erect 
 a new building, within the compass of the rooms formerly occupied 
 by him,^^^ or to move another house on the land.^^^ 
 
 A case is not brought within the exception under consideration, if 
 it appears that the whole building is not destroyed, and there is no 
 such destruction of the leased room as to deprive the tenant of the 
 right of occupancy for the purpose of repairing it so as to make it 
 tenantable. There is then no question of rebuilding the whole struc- 
 ture; but simply a matter of internal repairs. The lessor would have 
 no right to enter to make such repairs without the consent of the 
 lessee.^^" 
 
 If an advance payment of rent is a voluntary one, and there is no 
 covenant in the lease to repay the rent in case of fire, the lessee cannot 
 recover prepayments though he can resist subsequent claims. ^''^ But 
 the case seems different under a contract for payment in advance. 
 Such a contract does not apportion the risk or settle that the tenant 
 assumes the risk of losing the rent paid in advance, and the landlord 
 assumes the risk of losing subsequent payments and the building. 
 It cannot be presumed that because a lessee pays in advance he has in 
 mind a different degree of liability in case of the destruction of the 
 leased premises by fire. It is simply a prudential requirement on the 
 part of the lessor to secure the rent. There is no difference in prin- 
 ciple, so far as fixing liability is concerned, whether the contract is 
 to pay the rent monthly in advance or monthly at the end of the 
 term.^®^ 
 
 In Kentucky no exception to the general common-law rule as to 
 liability for rent after destruction by fire has been recognized, and so, 
 in a case arising in that state, the tenant of one room or apartment in 
 a building containing several rooms was held liable for the rent of 
 his room for the entire term, although the entire building was de- 
 stroyed by fire seven months before the expiration of his term.-^^ 
 
 ^ Stockwell V. Hunter, 11 Mete. -" Lieberthal v. Montgomery, 121 
 
 (Mass.) 448; Kerr v. Merchants' Mich. 369, 80 N. W. 115. 
 
 Exch. Co., 3 Edw. Ch. (N. Y.) 315. ^''^^ Porter v. Tull, 6 Wash. 408, 33 
 
 ^''^Winton v. Cornish, 5 Ohio 477. Pac. 965. 
 
 =^ Harrington v. Watson, 11 Ore. ^' Helburn v. Mofford, 7 Bush 
 
 143, 3 Pac. 173. (Ky.) 169. 
 
 ^'"Lieberthal v. Montgomery, 121 
 Mich. 369, 80 N. W. 115.
 
 § 6T8] RENT AXD ITS RECOVERY. 792 
 
 § 678. In Nebraska there has been a vigorous protest against the 
 common-law rule of continued liability on express covenants after the 
 destruction of the premises. It was argued by the Supreme Court of 
 that state that a lease is not a bargain and sale for a given time of 
 the lessor's interest, but is rather a hiring or letting of property for a 
 certain time. The promise to pay a stated sum of money as rent for 
 leased premises for a certain term is based upon the presumption that 
 the leased premises shall exist for the term. Xeither party had in mind 
 the possibility that the leased premises might be destroyed; they did 
 not contract with reference to such a casualty. There was an offer and 
 a promise on the part of the lessor to furnish the hired property for the 
 entire time, and a covenant upon the part of the lessee to pay rent for 
 the right to use and occupy the hired property if it existed. It was not 
 a proposition on the part of the lessor to quitclaim his right to the 
 use and occupancy of the leased premises. The rule of construction 
 of the common law is a harsh and technical one and the common-law 
 rule is not in force in Nebraska, but the rule is as follows: Where 
 a substantial portion of leased premises is destroyed without the 
 fault of the lessee, he is entitled to an apportionment of the rent 
 covenanted to be paid and accruing thereafter, in the absence of an 
 express assumption by him of the risk of such destruction.^^* De- 
 ■ cisions of similar import are to be found in South Carolina, in a case 
 where a building was rendered untenantable by a hurricane,-^^ and 
 in Kansas, where the leased buildings were burned.-^" In South 
 Carolina the law as finally settled seems to be that destruction of 
 leased premises by fire does not relieve a lessee from his express 
 covenant to pay rent, as that could reasonably be considered as within 
 the contemplation of the parties; but where the destruction of the 
 subject-matter, out of which rent is reserved, is by an act of God or 
 public enemies, the tenant may elect to rescind, and by surrendering 
 benefits under the lease shall be discharged from the payment of 
 rent. Unless the tenant surrendered the premises he would be liable 
 for rent during the entire term.^^^ The same distinction between de- 
 struction by fire and by the public enemies prevails in :\Iississippi, 
 and it is there declared to be the common-law rule.-^^ In Kansas the 
 doctrine has been announced that where, by a single instrument, real 
 
 -''^ Wattles V. South Omaha &c. Co., =" Coogan v. Parker, 2 S. Car. 255; 
 
 50 Neb. 251, 69 N. W. 785. Bayly v. Lawrence, 1 Bay. (S. Car.) 
 
 ='= Ripley v. Wightman, 4 McCord 499. 
 
 (S. Car.) 447. =="* Taylor v. Hart, 73 Miss. 22, 18 
 
 =°° Whitaker v. Hawley, 25 Kan. So. 546. 
 674.
 
 793 ABATEMEXT OF RENT. [§' 679 
 
 and personal property are leased for a gross rental, and the person- 
 alty is a substantial part of the leased property, upon a total destruc- 
 tion by accidental fire, the lessee is entitled to an abatement of the 
 rent equal to the proportionate rental value of the personalty. ^^^ 
 
 §679. A provision that, if premises are destroyed by fire, rent 
 shall be suspended until they are put in proper condition for use, by 
 the lessor, implies that the lease is to continue though the building 
 should be destroyed.^"" A provision of this nature, that in case the 
 premises are destroyed the lessee shall not be liable for rent till they 
 have been put in order again, is not an ordinary covenant in a lease, 
 however.3"^ Such a stipulation does not have the effect of putting an 
 end to the lease or bringing the term to a close. The lease containing 
 no provision that the liability for the taxes shall either be terminated, 
 or subject to any apportionment, a promise to pay the taxes during 
 the term is absolute and unconditional, and so long as the term con- 
 tinues the lessees continue liable for their payment. Taxes are not a 
 part of the rent where the lease distinguishes between rent and 
 taxes.^°2 Although there is no express provision that the suspension 
 of rent is limited to the time when the premises are untenantable, if 
 the building is repaired in a proper manner, and with reasonable dili- 
 gence and at once tendered to the lessee, he is bound to continue the 
 term. The lessor by virtue of the clause in the lease, and his general 
 ownership of the property, has a legal interest in the speedy repair 
 of the building; and, after the lessee waives his right to repair and 
 repudiates the lease in toto, the lessor has the right to go forward and 
 make the repairs in a proper manner and with reasonable expedition 
 and hold the lessee to his contract subject to suspension of rent for the 
 time the building is untenantable.^"^ 
 
 Under a stipulation that in case the premises are damaged by fire, 
 no rent shall be paid "while they are unfit for occupancy," damages 
 by fire are not to terminate the lease, but to stop the payment of rent 
 merely, while the premises are unfit for occupancy. The duty to re- 
 pair, then resting on the landlord, carries with it the right of entry 
 and of reasonable temporary occupancy for the purpose of repairing, 
 and it must be done within a reasonable time.^"* But if the provision 
 
 ==»» Whitaker v. Hawley, 25 Kan. '»=Minot v. Joy, 118 Mass. 308. 
 
 674; Vale v. Trader, 5 Kan. App. '"^Phillips &c. Mfg. Co. v. Whit- 
 
 307, 48 Pac. 458. ney, 109 Ala. 645, 20 So. 333. 
 
 '""Rogers v. Snow, 118 Mass. 118. =" Smith v. McLean, 123 111. 210, 
 
 '"'Eaton V. Whitaker, 18 Conn. 14 N. E. 50; Kellenberger v. Fores- 
 
 222, 223. man, 13 Ind. 475. If the lessor fails
 
 § 679] EEXT AND ITS KECOVERT. 794 
 
 is that rent shall cease altogether upon the destriiction of the premises 
 by fire, the lessee must surrender the premises, on the occurrence of 
 such event. Any other construction would work injustice and con- 
 travene the plain purpose and design of the parties.^"^ 
 
 A clause relating to the suspension of rent refers to such injury to 
 the premises as cannot be repaired, but necessitates a rebuilding of 
 the premises ; when covenants by the lessee to repair are considered in 
 conjunction with a provision for the suspension of rent, it seems evi- 
 dent that such provision was intended solely to relieve the lessees 
 from this common-law liability to pay rent in case of the destruction 
 of the leased premises by fire. Mere injury to scenery and fixings by 
 smoke and water, rendering occupation unpleasant, does not bring a 
 case within the terms of a lease relating to the suspension of rent.^°^ 
 Upon the setting up of such a defense, it is proper to consider the con- 
 dition of the premises, their situation, the business for which they are 
 used, or intended to be used, and whether they were occupied at the 
 time of the fire, or whether any business then being carried on was 
 interrupted, and all the surrounding existing circumstances in regard 
 to the premises at the time of the fire. If the lessee had no right to 
 sub-let, the question whether the premises were unfit for occupancy 
 by a sub-lessee is not available as a defense. That injuries which can 
 be repaired for a few dollars do not justify a jury in finding that there 
 was such substantial and material damage as to render the premises 
 unfit for occupancy is common sense and common knowledge. A 
 large portion of the business of the country is carried on through 
 rented premises, and it would be a dangerous precedent to hold that 
 a valuable lease could be nullified for a trifling injury .^^'^ 
 
 A finding that the lessees, by the payment of rent, elected to con- 
 sider the premises not untenantable, and that they were not un- 
 tenantable as to them, is sustained by the evidence, if it shows that 
 they remained in possession after a fire and continued to occupy them 
 and conduct their business and pay rent as usual, without claim that 
 the premises were untenantable, or notice to the lessor to repair.^''® 
 
 The explosion of a boiler occurring without any negligence on the 
 
 to repair within the specified time ^"^ Lewis v. Hughes, 12 Colo. 208, 
 
 in a case where time for repairs was 20 Pac. 621. 
 
 specified, the lease is terminated. '"^ Wampler v. Weinmann, 56 
 
 Florsheim v. Dullaghan, 58 111. App. Minn. 1, 57 N. W. 156. 
 
 626. '"' Tatum v. Thompson, 86 Cal. 
 
 ^o' Buschman v. "Wilson, 29 Md. 203, 24 Pac. 1009. 
 553; Gates v. Green, 4 Paige (N. 
 Y.) 355. 
 
 1
 
 795 ABATEMEXT OF RENT. [§ 680 
 
 part of the lessee has been regarded as the happening of a casualty 
 causing damage to the demised building, which was within the terms 
 of a lease suspending rent until repairs were completed by the lessor.^"^ 
 But the question whether an overflow caused by an extraordinary flood 
 of water is a casualty within the meaning of the covenants of a lease 
 is one of fact for the jury under proper instructions.^^*' 
 
 The effect of a covenant by the lessor to repair on the continued 
 liability of the lessee for rent after destruction of the premises is not 
 to suspend the rent but if the lessor fails to perform such a covenant, 
 the damages from such non-performance would exactly offset the rent 
 subsequently becoming due under the lease. Therefore the lessee 
 would have a complete defense when sued for rent.^^^ A lease of mills 
 provided that "the tenant was to keep up repairs, except heavy re- 
 pairs ... in [which] case it was to be repaired by the landlord 
 in a reasonable time after the injury and he was not to lose the rent 
 if he should go on to do the work according to contract," and the mill 
 was totally destroyed by fire. It was held that if the landlord refused 
 to make the heavy repairs he was to lose the rent. This was a neces- 
 sary implication from the words used ; for it would have been idle to 
 say he was not to lose the rent if he went on with the repairs, if the 
 parties did not understand that his failure to make them should de- 
 prive him of the rent.^^^ 
 
 § 680. A case where a leased building is torn down under power of 
 eminent domain to widen a street is not covered by a provision in a 
 lease that rent shall cease if the premises become imtenantable by fire 
 or other casualty. In the eyes of the law such acts are no injury to the 
 tenant because damages are awarded to him for such taking."^ "When 
 there is a leasehold interest in land taken under the power of eminent 
 domain, the lessee is entitled to just compensation for the value of his 
 interest, precisely as the landlord is entitled to compensation for the 
 value of his interest, and the sum of these values must be the full 
 value of the property taken.^" A taking of part of demised land by 
 condemnation is not an eviction,^^^ and the tenant remains liable, 
 
 ^"9 John Morris Co. v. Southworth, ^n ^y^jjig y Baehr, 24 Wend. (N. 
 
 154 111. 118, 39 N. E. 1099. Y.) 254. See § 362. 
 
 "" Miland v. Meiswinkel, 82 111. "' New York & B. Bridge v. Clark, 
 
 App. 522. 137 N. Y. 95, 32 N. E. 1054; Burt 
 
 "^ Union Water Power Co. v. Pin- v. Merchants' Ins. Co., 115 Mass. 1; 
 
 gree, 91 Me. 440, 40 Atl. 333. Gluck v. Baltimore, 81 Md. 315, 32 
 
 "'^^ Thompson v. Pendell, 12 Leigh Atl. 515; § 643. 
 
 (Va.) 591. '1" Gluck v. Baltimore, 81 Md. 315,
 
 681] 
 
 EENT AND ITS RECOVERY. 
 
 796 
 
 under his covenant, to pay the rent originally reserved, because noth- 
 ing short of a surrender, a release, or an eviction will discharge him.^^* 
 
 § 681. In many jurisdictions the rule of the common law as to con- 
 tinued liability for rent after destruction of the premises has been 
 abolished or modified by statutes. Thus, in New Jersey such a change 
 was made in 187-i;^^^ and in Minnesota in 1883.^^* In Virginia a 
 lessee is not liable on covenants to repair, or to pay rent, after the 
 destruction of the premises unless such was the intention of the par- 
 ties as evidenced by their written contract.^^^ Such statutes would 
 not be retroactive in their effect,^-*' following the general rule in this 
 respect. 
 
 In New York, Ohio and Minnesota, the acts provide that upon the 
 destruction or injury of leasehold buildings so that they are unten- 
 antable, 'the tenant shall not be liable or bound to pay rent, and that 
 he may thereupon quit and surrender the possession of the premises. 
 The tenancy is not made obsolutely to cease, except at the option of 
 the tenant. He is relieved from his obligation, if he chooses to avail 
 himself of the provisions of the act, or he may perform the covenants 
 of his lease and retain the benefit of it ; but he cannot have the benefits 
 of the law and at the same time repudiate its obligations. Such is 
 manifestly the correct interpretation of these statutes. If the tenant 
 elects to be free from his obligations, the statute, by necessary impli- 
 cation, imposes as a condition the surrender of the premises.^^^ In 
 the latter jurisdiction it has been suggested that a tenant might re- 
 sume possession after repairs were made and at the same time be re- 
 lieved from paying rent while he was deprived of the use of the prem- 
 ises.^^^ 
 
 32 Atl. 515; Dyer v. Wightman, 66 
 Pa. St. 425; Emmes v. Feeley, 132 
 Mass. 346; Stiibbings v. Evanston, 
 136 111. 37, 26 N. E. 577, 11 L. R. A. 
 839; Corrigan v. Chicago, 144 111. 
 537, 33 N. E. 746, 21 L. R. A. 212. 
 
 s^^Gluck v. Baltimore, 81 Md. 315, 
 32 Atl. 515. A landlord is not liable 
 to his tenant for damages incurred 
 on the leased building being torn 
 down by city authorities as danger- 
 ous or unlawful, unless the landlord 
 procured it to be done. Hitchcock 
 v. Bacon, 118 Pa. St. 272, 12 Atl. 352. 
 
 ^" Coles v. Celluloid Mfg. Co., 39 
 N. J. L. 326. 
 
 ^'^Lanpher v. Glenn, 37 Minn. 4, 
 33 N. W. 10. 
 
 ^" Richmond Ice Co. v. Crystal Ice 
 Co., 99 Va. 239, 38 S. E. 141. 
 
 =^ Coles v. Celluloid Mfg. Co., 39 
 N. J. L. 326. 
 
 ^" Johnson v. Oppenheim, 55 N. Y. 
 280; Gay v. Davey, 47 Ohio St. 396, 
 25 N. E. 425; Boston Block Co. v. 
 Buffington, 39 Minn. 385, 40 N. W. 
 361. 
 
 ^^ Boston Block Co. v. Buffington, 
 39 Minn. 385, 40 N. W. 361. 
 
 I
 
 '^97 . ABATEMENT OF KENT. [§ 681 
 
 In Connecticut the statute on this topic gives the option to the 
 lessor in place of the lessee. If the lessor would avail himself of the 
 provisions of this act, he must make the necessary repairs with rea- 
 sonable diligence. The obligation to pay rent after the building is 
 repaired is not a new statutory obligation, but a contract obligation 
 revived by the statute. Furthermore the Connecticut act has been 
 held to apply to the leasing of rooms in a building as well as to a 
 demise of an entire building.^^i jj^ ^^^^^ ^^ ^laYe the statute apply, 
 the building must become untenantable by some sudden and unex- 
 pected injury and not by mere decay. The statute manifestly has no 
 reference to ordinary repairs, such as the lessee at common law is 
 bound to make. It applies only to cases where the building becomes 
 untenantable by reason of some sudden and unexpected calamity; as 
 where it is wholly or partially destroyed by fire, water, or by a mob, 
 or other like cause. It was designed to relieve the tenant of the bur- 
 den of paying rent after it had become impossible for him to use and 
 occupy the premises leased.^-^ 
 
 In conformity with this principle the New York courts have held 
 that the act affording a tenant relief in that state does not apply to 
 a case where the premises were out of repair at the time of letting. 
 It never could have been the intention of the statute that a tenant 
 might hire a dilapidated house for a certain time, and then with- 
 out any material change in its condition, he should have the right 
 to quit and surrender it whenever he pleased.^-'' Nor would the act 
 apply to a case where the occupants of a flat were annoyed by unpleas- 
 ant and unwholesome odors. ^^''' 
 
 ^='The statute in force in that '=* Miller v. Benton, 55 Conn. 529, 
 
 state is as follows: "The tenant of 13 Atl. 678. 
 
 any tenement which may be, with- ^-= Hatch v. Stamper, 42 Conn. 28. 
 
 out his fault or neglect, so injured ^-•'Bloomer v. Merrill, 1 Daly (N. 
 
 as to be unfit for occupancy shall Y.) 485. 
 
 not be liable to pay rent after such ^" Sutphin v. Seebas, 12 Daly (N. 
 injury so long as such tenement is Y.) 139. In a lease of an old build- 
 untenantable, if he continue to oc- ing the tenant covenanted to repair, 
 cupy, unless it be otherwise express- He stored extra heavy materials in 
 ly provided by written agreement; the building which caused some new 
 and in case of such injury he may floors put in by tenant to settle and 
 ruit possession of such tenenment; a fall of snow caused a further set- 
 but if the same shall become fit for tling. On this state of circum- 
 occupancy during the continuance of stances, the statute making it un- 
 his lease, he shall then pay the rent necessary for tenant to pay rent 
 and may again occupy it." Gen. St. when premises were damaged by 
 of Conn. 1902, § 4045. the elements did not apply because
 
 681] 
 
 RENT AND ITS EECOVERY, 
 
 798 
 
 The mere building upon or other improvement of an adjoining lot, 
 by which demised premises are rendered less commodious of occupa- 
 tion or less suitable to the uses of the tenant does not affect the right 
 of the landlord to his rent, or authorize the tenant to terminate the 
 lease and abandon the premises,^^^ and a statute of the kind under 
 consideration does not give the tenant relief.^-^ Under a statute 
 providing for the two alternatives when the premises are destroyed 
 or injured, the first alternative has reference to a sudden and total 
 destruction, the latter has reference to a case of injury to the prem- 
 ises short of a total destruction. If the legislature had intended to 
 provide that the tenant should cease to be liable for rent when the 
 premises from any cause became untenantable, it would have been easy 
 to have expressed the intent in apt and proper language.^^" 
 
 acts of the tenant were partly the 
 cause. The tenant still continued 
 liable to make repairs. McMann v. 
 Autenreith, 17 Hun (N. Y.) 163. 
 
 ^=* Johnson v. Oppenheim, 55 N. Y. 
 280; Hazlett v. Powell, 30 Pa. St. 
 293; Palmer v. Wetmore, 2 Sandf. 
 (N. Y.) 316; Myers v. Gemmel, 10 
 Barb. (N. Y.) 537; Hilliard v. New 
 York &c. Co., 41 Ohio St. 662. 
 
 ^=» Hilliard v. New York &c. Co., 
 41 Ohio St. 662. 
 
 ''" Suydam v. Jackson, 54 N. Y. 
 
 450; Hilliard v. New York &c. Co., 
 41 Ohio St. 662. Under act of 1860 
 releasing lessee of a building from 
 liability for rent after injury to the 
 building making it untenantable, 
 "unless otherwise expressly pro- 
 vided by written agreement," it does 
 not constitute a waiver for a lease 
 to contain a provision that in case 
 the tenant abandons his premises at 
 any time, the rent then due and to 
 become due shall be due and col- 
 lectable. Van V. Rouse, 94 N. Y. 401. 
 
 I
 
 CHAPTER X. 
 
 ESTOPPEL TO DENY LANDLORD'S TITLE. 
 
 § 682. Modem rule of estoppel to deny title between landlord and 
 tenant. — In all possessory actions arising between a landlord and his 
 tenant in respect to the demised premises, the general rule is well es- 
 tablished that as long as a tenant remains in possession of the demised 
 premises, he is absolutely precluded from denying the validity of the 
 title under which he entered or agreed to hold.^ Beside possessory ac- 
 
 1 Alabama: Pugh v. Davis, 103 Minn. 294, 75 N. W. 229; Allen v. 
 
 Ala. 316, 18 So. 8; Barlow v. Dahm, Chatfield, 8 Minn. 435. Mississippi: 
 
 97 Ala. 415, 12 So. 293; Davis v. Wildy v. Doe, 26 Miss. 35; Winston 
 
 Williams, 130 Ala. 530, 30 So. 488. v. President &c., 28 Miss. 118; 
 
 Arkansas: Vinson v. Flynn, 64 Ark. Frazer v. Robinson, 42 Miss. 121. 
 
 453, 43 S. W. 146, 46 S. W. 186; Missouri: Walker v. Harper, 33 Mo. 
 
 James v. Belding, 33 Ark. 536. Cali- 592; Shepard v. Martin, 31 Mo. 492; 
 
 fornia: Pierce v. Minturn, 1 Cal. Green v. Missouri &c. R. Co., 82 Mo. 
 
 470; Burgess v. Rice, 74 Cal. 590, 653. Montana: Alderson v. Mar- 
 
 16 Pac. 446. Colorado: Milsap v. shall, 7 Mont. 288, 16 Pac. 576. 
 
 Stone, 2 Colo. 137. Florida: Rob- Nebraska: Carson v. Broady, 56 
 
 ertson v. Biddell, 32 Fla. 304, 13 Neb. 648, 77 N. W. 80. New Hamp- 
 
 So. 358; Winn v. Strickland, 34 Fla. shire: Russell v. Allard, 18 N. H. 
 
 610, 16 So. 606. Georgia: Smith v. 222; Plumer v. Plumer, 30 N. H. 
 
 Sutton, 74 Ga. 528. Illinois: Baker 558. North Carolina: Heyer v. 
 
 V. Pratt, 15 111. 568; Knefel v. Daly, Beatty, 76 N. Car. 28; James v. 
 
 91 111. App. 321; Sexton v. Carley, Russell, 92 N. Car. 194; Shew v. 
 
 147 111. 269, 35 N. E. 471. Kansas: Call, 119 N. Car. 450, 26 S. E. 33; 
 
 Pettigrew v. Mills, 36 Kan. 745, 14 Shell v. West, 130 N. Car. 171, 41 
 
 Pac. 170. Louisiana: Hanson v. Al- S. E. 65. North Dakota: Nearing 
 
 len, 37 La. Ann. 732. Maine: v. Coop, 6 N. D. 345, 70 N. W. 1044. 
 
 Longfellow v. Longfellow, 61 Me. Oklahoma: Hager v. Wikoff, 2 Okla. 
 
 590; Heath v. Williams, 25 Me. 580, 39 Pac. 281; Pappe v. Trout, 3 
 
 209. Massachusetts: Binney v. Okla. 260, 41 Pac. 397; Hamill v. 
 
 Chapman, 5 Pick. (Mass.) 124; Jalonick, 3 Okla. 223, 41 Pac. 139. 
 
 Gage V. Campbell, 131 Mass. 566; Oregon: Kiernan v. Terry, 26 Ore. 
 
 Granger v. Parker, 137 Mass. 228. 494, 38 Pac. 671. Pennsylvania: 
 
 Maryland: Goodsell v. Lawson, Kline v. Johnston, 24 Pa. St. 72. 
 
 42 Md. 348; Cook v. Creswell, South Carolina: Syme v. Sanders, 4 
 
 44 Md. 581. Michigan: Lee v. Strob. L. (S. Car.) 196; Darby v. 
 
 Payne, 4 Mich. 106. Minnesota: Anderson, 1 Nott & M. (S. Car.) 
 
 Morrison v. Bassett, 26 Minn. 235, 369; Wilson v. Weathersby, 1 Nott 
 
 2 N, W. 851; Sage v. Halverson, 72 & M. (S. Car.) 373. Tennessee: 
 
 799
 
 §• 683] 
 
 ESTOPPEL TO DEXY LANDLORD S TITLE. 
 
 800 
 
 f 
 
 tions, such as ejectment, writ of entry, trespass to try title, and sum- 
 mary proceedings, and actions for rent, or use and occupation, or of 
 replevin, the rule of estoppel has been applied where the lease is en- 
 tirely distinct from the foundation of the action, and the relation of 
 landlord and tenant can only appear in evidence, as in trover,^ or in 
 an application for an injunction against waste,^ or in a suit for spe- 
 cific performance.* 
 
 The characteristic and vital distinction between the ancient legal 
 estoppel arising from a demise by indenture, and the modern equitable 
 estoppel in pais of the tenant is, that the latter need not be pleaded, 
 but is conclusive in evidence in support of a general denial of the case 
 set out or relied on by the opposite party.^ The existence of the rela- 
 tion of landlord and tenant, as between the plaintiff and defendant 
 in an action of ejectment, is of a vital and controlling importance, 
 because the tenant is estopped from disputing his landlord's title, 
 so long as he continues in possession of the demised primses. After 
 taking possession on the faith of his lease, or being permitted to 
 remain in such possession, in recognition of the landlord's title, the 
 
 Campbell v. Hampton, 11 Lea 
 (Tenn.) 440; Rogers v. Waller, 4 
 Hayw. (Tenn.) 205; Caldwell v. 
 Harris, 4 Humph. (Tenn.) 24; 
 Beaty v. Jones, 1 Coldw. (Tenn.) 
 486; Elliott v. Lawless, 6 Heisk. 
 (Tenn.) 123, 130. Vermont: Tuttle 
 V. Reynolds, 1 Vt. 80; Congrega- 
 tional Society v. Walker, 18 Vt. 600. 
 Virginia: Creigh v. Henson, 10 
 Grat. 231; Dobson v. Culpepper, 23 
 Grat. 352. West Virginia: Camp- 
 bell V. Fetterman, 20 W. Va. 398. 
 Wisconsin: Ricketson v. Galligan, 
 89 Wis. 394, 62 N. W. 87. United 
 States: Willison v. Watkins, 3 Pet. 
 (U. S.) 43, 48. In a case arising 
 in North Carolina there was a con- 
 veyance to defendant in 1879, with- 
 out transfer of possession, a lease 
 to A in 1880, and A sub-let to de- 
 fendant; it was held on these facts 
 that the doctrine of estoppel did 
 not apply, and the defendant could 
 set up title in himself without sur- 
 rendering possession of the prem- 
 ises to the landlord. Allen v. Grif- 
 
 fin, 98 N. Car. 120, 3 S. E. 837. This 
 case seems clearly wrong; it gives 
 an example of just the sort of case 
 where estoppel should apply. 
 
 ^Plumer v. Plumer, 30 N. H. 558. 
 
 3 Parker v. Raymond, 14 Mo. 535. 
 
 ^ Davis V. Williams, 130 Ala. 530, 
 30 So. 488. 
 
 ^ Kiernan v. Sanders, 6 A. & E. 
 515; Veale v, Warner, 1 William 
 Saund. 323d, 325. In 6 Am. L. R. 
 1, at page 9, it is stated that "the 
 origin and character of the tenant's 
 estoppel are to be found in the es- 
 sential features of the ancient ac- 
 tion of assumpsit for use and occu- 
 pation at a period long antecedent 
 to the statute of George II, and far 
 antedating the rule in actions of 
 ejectment. . . . Certainly thp 
 estoppel in ejectment is in no way 
 derivable from the statute of 
 George II, and its existence therein 
 further disproves the position of 
 those who look to that statute as 
 the source of that estoppel.
 
 801 ESTOPPEL TO DENY LANDLORD'S TITLE. [§ 682 
 
 tenant is precluded from setting up an outstanding title with a view 
 of defeating that of the landlord.^ On becoming tenant of land under 
 another the tenant, in contemplation of law and on grounds of public 
 policy and in maintenance of sound morals and good faith, undertakes 
 to preserve the possession of the landlord and redeliver it and he can- 
 not do otherwise without a violation of faith. ^ 
 
 The relation of landlord and tenant, with or without deed, creates 
 an equitable estoppel, mutual in its operation. It arises whenever one 
 person has obtained possession of the land of another under an obliga- 
 tion, express or implied, to restore it. Such is the case of a vendee in 
 possession and the rule applies between mortgagor and mortgagee.^ 
 The tenant of a demandant in an ejectment suit, entering under a 
 levy, is estopped to deny the regularity of the process under which the 
 levy was made.** Thus it has been held that where one takes posses- 
 sion of land under a contract to purchase, he cannot controvert the 
 title of the one who let him into possession.^*' Defendants in an eject- 
 ment suit cannot hold possession under a contract of purchase, and at 
 the same time deny that the party with whom the contract was made 
 had title to the property which was the subject of the contract. ^^ A 
 person let into possession under such an executory contract of pur- 
 chase, looking up to his vendor for a title, occupies as quasi tenant, 
 and as respects denial of title, the same estoppel exists between such 
 parties as between landlord and tenant.^- The reason of the rule as to 
 estoppel is that one who goes into possession, under another, shall not 
 be permitted to deny the character in which he went in ; and it does 
 not matter whether the conventional relation of landlord and tenant 
 is created between the parties or not.^^ 
 
 The estoppel, precluding a denial of the landlord's title, extends 
 
 « Caldwell v. Smith, 77 Ala. 157; (Tenn.) 46; Casey v. Haurick, 69 
 
 Norwood V. Kirby, 70 Ala. 397; Tex. 44, 6 S. W. 405. Contra, Green 
 
 Houston V. Farris, 71 Ala. 570. v. Dietrich, 114 111. 636, 3 N. E. 
 
 ' Washington v. Conrad, 2 Humph. 800. 
 
 (Tenn.) 562. "Reese v. Caffee, 133 Ind. 14, 32 
 
 «Clemm v. Wilcox, 15 Ark. 102. N. E. 720; Casey v. Haurick, 69 
 
 » Goodenow v. Kilby, 24 Me. 425. Tex. 44, 6 S. W. 405. 
 
 ^"Reese v. Caffee, 133 Ind. 14, 32 '= Sabastian v. Ford, 6 Dana (Ky.) 
 
 N. E. 720; Farmer v. Pickens, 83 436; Winnard v. Robbins, 3 Humph. 
 
 N. Car. 549; Dowd v. Gilchrist, 1 (Tenn.) 614; Baker v. Hale, 6 Baxt. 
 
 Jones L. (N. Car.) 353; Love v. Ed- (Tenn.) 46. 
 
 monston, 1 Ired. L. (N. Car.) 152; "Burnett v. Rich, 45 Ga. 211, per 
 
 Winnard v. Robbins, 3 Humph. McCay, J. 
 (Tenn.) 614; Baker v. Hale, 6 Baxt. 
 
 Jones L. & T. — 51
 
 II 
 
 §§■ 683, 684] ESTOPPEL to dext landlord's title. 802 
 
 equally to landlord and tenant; so that while the tenant is estopped 
 from denying the landlord's title, the landlord cannot allege that he ) 
 
 had no title at the time of the demise.^* ,^A 
 
 § 683. Where a lessee has had full benefit of his term, he is es- 
 topped to deny the capacity or power of the lessor to execute the lease 
 and the mode in which he executed it.^^ In such a case the lessee has 
 received everything that he bargained for; he has been given posses- p 
 sion of the land and held it peaceably until after the expiration of the 
 lease. Having received air the benefits of his contract, he cannot be 
 permitted to dispute the authority of the one leasing him the land 
 and thereby escape paying for what he has received. The lessee's es- i 
 toppel would extend to a surety for the payment of rent.^'' It may be I 
 laid down as a general rule that, besides the prohibition against deny- 
 ing title, a tenant is precluded from controverting the authority of his 
 landlord to execute the lease under which he holds or his capacity to 
 sue on it.^^ In the absence of authority derived from the statute or 
 from the court ordering his appointment, a receiver has no authority 
 to sue in his own name ; but after tenants have attorned to a receiver, 
 and so created a tenancy, as between them, the receiver may distrain, 
 in his own name for rent accrued during the tenancy without first 
 obtaining an order so to do.^* But if possession of the property is 
 wrongfully retained by the tenant, the receiver is entitled to maintain 
 an action to recover possession in his own name without an order of 
 court.^^ In a similar connection it has been declared that there is 
 nothing peculiar in the nature of municipal corporations, to require, 
 against them, any modification of the rule which prevents the tenant 
 from denying his landlord's title.^° 
 
 § 684. To allow a tenant to object to the right of joint lessors to 
 maintain a joint action to recover the premises, for the reason tliat 
 they do not hold the premises in common, but are seized in severalty 
 of separate and distinct parcels thereof, and cannot, therefore, jointly 
 
 "Duke v. Harper, 6 Yerg. (Tenn.) "Helena v. Turner, 36 Ark. 577; 
 
 279, 280. Pouder v. Catterson, 127 Ind. 434, 
 
 "Mayer &c. v. Sonneborn, 113 N. 26 N. E. 66; Jamaica v. Hart, 52 
 
 Y. 423, 21 N. E. 121, 22 N. Y. St. Vt. 549; Hall &c. Co. v. Wilbur, 4 
 
 988; Cunning v. Tittabawassee Wash. 644, 30 Pac. 665. 
 
 Boom Co., 88 Mich. 237, 50 N. W. '« Pouder v. Catterson, 127 Ind. 
 
 141; Oliver v. Gary, 42 Kan. 623, 434, 26 N. E. 66. 
 
 22 Pac. 733. ^» Kehr v. Hall. 117 Ind. 405, 20 
 
 ^"Oliver v. Gary, 42 Kan. 623, 22 N. E. 279. 
 
 Pac. 733. '" Helena v. Turner, 36 Ark. 577. 
 
 II
 
 803 
 
 ESTOPPEL TO DENY LANDLOKD's TITLE. [§§' 685, 686 
 
 sue to recover the whole, would be a violation of the elementary prin- 
 ciple that a tenant cannot deny his landlord's title. The lease is a 
 conclusive admission that the lessors are so entitled to the premises de- 
 manded, as to enable them to sue jointly for their recovery.^^ Where 
 a tenant enters upon land under license from one of several tenants in 
 common, all his subsequent acts must be considered as performed in 
 submission to that title till the contrary is proved. ^^ 
 
 § 685. A tenant at will, equally with a tenant for years or from 
 year to year, is precluded from denying his landlord's title prior to a 
 surrender or eviction by title paramount.^^ And this has been applied 
 where the landlord was in turn a tenant at will of the owner in fee. 
 Until the owner in fee took steps to terminate the will, the sub-tenant 
 would be bound by estoppel.^* However, it has been held that a tenant 
 claiming under an oral lease is not estopped to show that his landlord 
 is only a tenant at will and that, therefore, a subsequent written lease 
 from this landlord to one who has sued the tenant for use and occupa- 
 tion as a tenant at sufferance is void. It is not inconsistent with the 
 relations of a tenant to his landlord, to deny the right of the landlord 
 to convey to another a greater estate than that which the tenant him- 
 self derived from his lease. Proof that his landlord had not such a 
 title as would entitle him to create an estate for years was not in de- 
 nial of a title sufficient to sustain the tenant's estate at will.-^ 
 
 § 686. Occupation under a void or improperly executed lease, in- 
 valid to transfer an estate for years to the lessee, will estop him from de- 
 nying the landlord's title in an action for rent.^** This rule is applica- 
 ble in actions to recover possession and in ejectment by a landlord 
 against a tenant, the latter cannot object to an informality in the lease 
 under which he holds.^^ The doctrine of estoppel applies with equal 
 force though the lease under which the tenant went into possession is 
 void because not put in writing as required by the statute of frauds.-^ 
 
 ■^ Oakes v. Munroe, 8 Cush. 
 (Mass.) 282. 
 
 " Bucknam v. Bucknam, 30 Me. 
 494. 
 
 -^ Towne v. Butterfleld, 97 Mass. 
 105; Coburn v. Palmer, 8 Cush. 
 (Mass.) 124. 
 
 -* Coburn v. Palmer, 8 Cush. 
 (Mass.) 124. 
 
 -^ Palmer v. Bowker, 106 Mass. 
 317; Hilbourn v. Fogg, 99 Mass. 11. 
 
 -»Cobb V. Arnold, 8 Mete. (Mass.) 
 398; Moore v. Beasley, 3 Ohio 294. 
 
 " Trustees &c. v. Burt. 11 Vt. 632. 
 
 ='Cobb V. Arnold, 12 Met(!. 
 (Mass.) 39; Smalley v. Mitchell, 110 
 Mich. 650, 68 N. W. 978; Adams v. 
 Martin, 8 Grat. (Va.) 107.
 
 §§' 687, 688] ESTOPPEL to deny landlord's title. 804 
 
 Or there has been no express contract of tenancy, and the a^eement 
 is implied from the conduct of the parties.^ ^ 
 
 § 687. A disability to contract of one who enters upon land by per- 
 mission of another does not relieve him from the obligation of return- 
 ing the possession to such owner as a condition precedent to denying 
 his title. The doctrine of estoppel, as applied between landlord and 
 tenant, does not arise so conclusively out of a contract that it cannot 
 be applied to one who is incapable of binding himself by a contract. 
 If one enter upon land by permission of another, claiming and ac- 
 knowledged to be the owner, the duty to return the possession to the 
 owner, as a condition precedent to denying his title, is one which the 
 law imposes upon principles of good faith and to prevent fraud. Its 
 violation is essentially a tort and a fraud. Because a tenant could not 
 contract while a slave, is no reason why he should be allowed to commit 
 a fraud after he is free.^** But the inability of a married woman to 
 lease real estate belonging to her sole and separate estate, has been 
 held to release her lessee from his estoppel to deny her title. The les- 
 see cannot be estopped to deny the lease unless the lessor would also be 
 estopped ; for estoppels are mutual. There is no way of escaping the 
 conclusion that such a lease is void, because of the well-recognized 
 doctrine that a married woman is never estopped except in the case of 
 fraud on her part.^^ It has been declared to be a fundamental rule of 
 estoppel that it must be mutual ; if one party is not bound neither is. 
 So, if at the time a lease was made one landlord was a married woman 
 and the other was insane, they were not bound by the estoppel and 
 therefore their lessees were not.^^ 
 
 § 688. A tenant cannot deny his landlord's title while remaining 
 in possession after the expiration of his term, because the admission 
 of his landlord's title must necessarily extend during the whole time 
 that he remains in the possession first acquired.^^ This estoppel 
 against a tenant in favor of his landlord's title does not, however, en- 
 
 ^''Towery v. Henderson, 60 Tex. 33 Pac. 729; Mattis v. Robinson, 1 
 
 291; Word v. Drouthett, 44 Tex. Neb. 3; Grizzard v. Roberts, 110 Ga. 
 
 365, 371. 41, 35 S. E. 291; Clemm v. Wilcox, 
 
 "» Wilson v. James, 79 N. Car. 349. 15 Ark. 102; Falkner v. Beers, 2 
 
 ^' Schenck v. Stumpf, 6 Mo. App. Doug. (Mich.) 117; Kiernan v. 
 
 381. Terry, 26 Ore. 494, 38 Pac. 671; 
 
 '"Crocett v. Althouse, 35 Mo. App. Morse v. Goddard, 13 Mete. (Mass.) 
 
 404. 177, 46 Am. Dec. 728. 
 
 ^ McKissick v. Ashby, 98 Cal. 422,
 
 805 ESTOrPEL TO DENY LANDLORD'S TITLE. [§ 689 
 
 dure longer than the tenant's possession under the lease. After the 
 possession has been restored to the landlord, the tenant is released 
 from the estoppel, and if he has a paramount title he may bring it 
 forward.^* After the expiration of the term and surrender of pos- 
 session, a tenant has full liberty to dispute his landlord's title, the 
 general rule simply requiring that while the tenant holds, by permis- 
 sion of the landlord, he shall not question the title of the latter.^^ One 
 or two eases go beyond this and hold, according to the view of the 
 New Hampshire court, that a party may set up his own title at the 
 expiration of his term, without restoring possession, upon the plain 
 and sensible ground that it would be idle to compel a party to go out 
 of possession, when he could turn round and recover it back on the 
 title.^*^ The ancient rule laid down by Lord Coke is that, "If a man 
 take a lease of his own land by deed indented, the estoppel doth not 
 continue after the term ended. For by the making of the lease the 
 estoppel doth grow, and consequently by the end of the lease the es- 
 toppel determines." Under this rule the estoppel is evidently based 
 on the indenture and not on the possession and so the canon is mis- 
 takenly applied to limit the modern doctrine arising from possession ; 
 yet such an application was undoubtedly the source of the New Hamp- 
 shire doctrine just stated. It is, however, almost idle to cite author- 
 ities, so numerous and consistent are they, that the estoppel is as con- 
 clusive after as during the term, being simply concurrent with pos- 
 session, not with title. This is the constant definition, and has been 
 so held from the earliest cases, the tenant being bound, not merely not 
 to resist the landlord's title, but to restore possession to him.^^ 
 
 However a tenant who surrenders possession at the end of his term 
 or from whom possession is recovered is not concluded, by the exist- 
 
 '* Wilson v. Cleaveland, 30 Cal. 100 E. C. L, 870; Fuller v. Sweet, 
 
 192; Jackson v. Spear, 7 Wend. (N. 30 Mich. 237. 
 
 Y.) 401; Glen v. Gibson, 9 Barb. ="' Miller v. Lang, 99 Mass. 13; 
 
 (N, Y.) 634; Doe v. Smythe, 4 M. Bailey v. Kilburn, 10 Mete. (Mass.) 
 
 & S. 348; James v. Landon, 1 Cro. 176; Phillips v. Rothwell, 4 Bibb 
 
 36. (Ky.) 33; Shelton v. Doe, 6 Ala. 
 
 '= Zimmerman v. Marchland, 23 230; Jackson v. Stiles, 1 Cow. (N. 
 
 Ind. 474; Campbell v. Campbell, 21 Y.) 575; Jackson v. Harper, 5 
 
 Mich. 438; Smart v. Smith, 2 Dev. Wend. (N. Y.) 246; Falkner v. 
 
 L. (N. Car.) 258; Heath v. Wil- Beers, 2 Doug. (Mich.) 117; Gal- 
 
 liams, 25 Me. 209; Carpenter v. loway v. Ogle, 2 Binn. (Pa.) 468; 
 
 Thompson, 3 N. H. 204. Willison v. Watkins, 3 Pet. (U. S.) 
 
 '•'Page v. Kinsman, 43 N. H. 328, 43, 48; Doe v. Walker, 3 McLean 
 
 citing Accidental &c. Ins. Co, v. (U. S.) 431; Doe v. Mills, 2 A. & 
 
 Mackenzie, 10 C. B. (N. S.) 870, E. 17; Doe v. Smythe, 4 M. & S. 
 
 348.
 
 § 689] ESTOPPEL TO DENY LANDLORD'S TITLE. 806 
 
 ence of such tenancy at a former time or by the deed of lease, which 
 he executed, from contesting the title of his former landlord.^^ 
 
 If the tenant desires to assert title in himself or another, he must 
 surrender possession of the premises, and give his landlord the ad- 
 vantage of possession in any litigation as to title. Mere leaving pos- 
 session and resuming it a short time afterward, without notice to the 
 landlord, or giving him an opportunity to take possession, is not suffi- 
 cient. The tenant must act in good faith and restore the landlord to 
 the same condition in which he was when he accepted possession from 
 him.^^ A temporary absence of the lessee, of which the lessor has no 
 knowledge, does not constitute a restoration of possession, and conse- 
 quently gives the lessee no right, upon his return, to resist his land- 
 lord by setting up an adverse claim of title.^° Furthermore it is not 
 open to the tenant to say for the purpose of supporting a denial that to 
 return the premises would be to commit a breach of public policy by 
 impeding navigation in a river.'*^ 
 
 Cancellation of the instrument" of demise would not terminate an 
 estoppel resting on possession and a decision that the tender of a lease 
 without surrender of possession does not entitle a tenant to dispute 
 his landlord's title assumes possession to be the basis of the estoppel. *- 
 
 § 689. Purchase of adverse title by tenant. — The general doctrine 
 of estoppel precludes a tenant during the continuance of his posses- 
 sion under a lease from buying in and setting up an adverse title to 
 defeat an action of ejectment or a suit for rent.*^ This rule does not, 
 however, prohibit the tenant, during the tenancy, from purchasing 
 any outstanding title and from asserting the same against the land- 
 lord after the expiration of the tenancy and yielding up of possession. 
 There are fiduciary relations where one may not purchase and hold 
 for himself an adverse interest, but the title if acquired will inure to 
 
 ^8 Smith v. Mundy, 18 Ala. 182; "St. Anthony Falls &c. Co. v. 
 
 Gable v. Wetherholt, 116 111. 313, 6 Morrison, 12 Minn. 249. 
 
 N. B. 453; Wild v. Serpell, 10 Grat. '- Mackin v. Haven, 187 111. 480, 
 
 (Va.) 405. 58 N. E. 448, affirming 88 111. App. 
 
 '" Littleton v. Clayton, 77 Ala. 434. 
 
 571; Longfellow v. Longfellow, 61 *' Lyles v. Murphy, 38 Tex. 75; 
 
 Me. 590; Graham v. Moore, 4 S. & Casey v, Hanrick, 69 Tex. 44, 6 S. 
 
 R. (Pa.) 467; Boyer v. Smith, 3 W. 405; Chambers v. Pleak, 6 Dana 
 
 Watts (Pa.) 449; Bertram v. Cook, (Ky.) 426; Norton v. Doe, 1 Dana 
 
 32 Mich. 518. (Ky.) 14; Parker v. Nanson, 12 
 
 *ojuneman v. Franklin, 67 Tex. Neb. 419, 11 N. W. 865; Bertram v. 
 
 411, 3 S. W. 562. Cook, 32 Mich. 518; Cooper v. 
 
 Smith, 8 Watts (Pa.) 536.
 
 807 
 
 ESTOPPEL TO DENY LANDLORD'S TITLE. 
 
 [§ 689 
 
 the benefit of the person towards whom he holds the confidential re- 
 lations. Ordinarily a tenant does not occupy such a relation to his 
 landlord and may purchase an adverse title, and assert it against his 
 former landlord after having surrendered possession to him.** As 
 long as the tenant's possession continues, however, he cannot be heard 
 in any court to ask absolution from his duties as tenant because of 
 his outstanding title.*= The same doctrine has been applied where 
 the tenant received his adverse title by devise/^ the general rule being 
 that a tenant acquiring rights adverse to his landlord, is bound to sur- 
 render the property before he can be allowed to assert them.*^ 
 
 The established doctrine is that a tenant for life in possession, in 
 the purchase of an incumbrance upon, or an adverse title to the 
 estate, will be regarded as having made the purchase for the joint bene- 
 fit of himself and the reversioner or remainderman. The law will 
 not permit him to hold it for his own exclusive benefit if the re- 
 versioner or remainderman will contribute his share of the sum paid. 
 If the life tenant in such case pays more than his proportionate share, 
 he simply becomes a creditor of the estate for that amount.*^ In 
 Xebraska a similar doctrine has been applied in the case of a term for 
 years, so that in that state, if a tenant for years in possession pur- 
 chases an incumbrance on the leased premises, the presumption is, that 
 he did it, for the only purpose permitted by law, that is, to protect 
 his possession, and in such case where the tenancy is for years, the 
 landlord must account to him for what he has paid for the incum- 
 
 *^ Gable v. Wetherholt, 116 111. 
 313, 6 N. E. 453; Hodgen v. Guttery, 
 58 111. 431; Brown v. Keller, 32 
 111. 151; Williams v. Garrison, 29 
 Ga. 503; Hodges v. Shields, 18 B. 
 Mon. (Ky.) 828; Chambers v. Pleak, 
 6 Dana (Ky.) 426; Higgins v. 
 Turner, 61 Mo. 249; Rives v. Nes- 
 mith, 64 Miss. 807, 2 So. 174. 
 
 " Brewer v. Keeler, 42 Ark. 289. 
 
 « Hatch V. Bullock, 57 N. H. 15. 
 
 " Arnold v. Woodard, 4 Colo. 
 249; Milsap v. Stone, 2 Colo. 137; 
 Williams v. Garrison, 29 Ga. 503; 
 Longworth v. Wolfinger, Wright 
 (Ohio) 216; Hughes v. Watt, 28 
 Ark. 153. Vermont doctrine. If 
 the tenant has entered into posses- 
 sion under the mortgagor, as his 
 tenant, still he might repudiate that 
 
 tenancy by purchasing an older 
 mortgage as being a better title and 
 protect himself in his position of 
 the premises from any claims of 
 his former landlord. And when- 
 ever, by purchasing such title, he 
 is entitled to the right to posses- 
 sion, it would be an Idle ceremony 
 to require the tenant to surrender 
 up the possession and then resort 
 to his action of ejectment, when it 
 is only effect and cannot be to put 
 the lessee in the same position as 
 before. Pierce v. Brown, 24 Vt. 
 165, citing Doe v. Barton, 11 A. 
 & E. 307. 
 
 *^ Daviess v. Myers, 13 B. Mon. 
 (Ky.) 511; Whitney v. Salter, 36 
 Minn. 103, 30 N. W. 400.
 
 § 690] ESTOPPEL TO DEXT LAXDLOED's TITLE. 808 
 
 brance, not exceeding what was Jointly due thereon with interest.** 
 The same presumption has been held in that state to apply to a pur- 
 chase of the landlord's title at judicial sale.^° 
 
 § 690. An owner of land or one under obligation to pay taxes 
 thereon, cannot acquire a tax title so as to defeat incumbrancers or 
 
 others setting up a claim or title adverse to him. This rule has been 
 extended to tenants in common and those holding under the owner of 
 the property.^^ It is the duty of a tenant for life to pay all the taxes 
 assessed during his tenancy, and if he neglects it and suffers the land 
 to be sold for the taxes, and purchases it himself, or suffers a stranger 
 to purchase and then procures a release to himself, he can acquire no 
 right to the estate against the owner in fee.^^ It is a general rule 
 from which there is no dissent that where a tenant is under obliga- 
 tion to pay taxes on the demised premises, he cannot acquire title 
 against the landlord by the purchase of the property at a tax sale.^^ 
 Furthermore, the mere relation of landlord and tenant has been de- 
 clared to be of such a nature as to disqualify either from acquiring 
 title under a tax deed. Although it is the duty of the landlord to 
 pay the taxes assessed, in the absence of any agreement to the con- 
 trary between the parties, yet the tenant will not be permitted to take 
 advantage of the omission of his landlord to pay taxes to terminate 
 the relation between them and obtain title to the land. The pre- 
 sumption of law in such case is that a tenant who takes an assignment 
 of a certificate, or even buys at a tax sale, does so for the protection 
 of his own interest ; the result would be that every attempted purchase 
 made by a tenant would operate merely as a payment of the tax, and 
 not as a valid purchase.^* 
 
 According to the doctrine in Arkansas, where land becomes for- 
 feited to the state for non-payment of taxes by neglect of the owner, 
 his tenant may terminate the tenancy by delivery of the possession, 
 or protect himself from eviction by a future purchaser from the state 
 by advancing the taxes and holding a lien for reimbursement, or if 
 
 ^'Thrall v. Omaha Hotel Co., 5 Y.) 312; Burhans v. Van Zandt, 7 
 
 Neb. 295; Mattis v. Robinson, 1 N. Y. 523; Trustees &c. v. Dunn, 22 
 
 Neb. 3. Barb. (N. Y.) 402; Prettyman v. 
 
 ^oLausman v. Drahos, 10 Neb. 172, Walston, 34 111. 175, 191. 
 
 4 N. W. 956. "Duffitt v. Tuhan, 28 Kan. 292; 
 
 "Curtis v. Smith, 42 Iowa 665. Blake v. Howe, 1 Aik. (Vt.) 306, 15 
 
 "^Varney v. Stevens, 22 Me. 331; Am. Dec. 681. 
 
 Hughes v. Young, 5 Gill & J. (Md.) =^ Bailey v. Campbell, 82 Ala. 342, 
 
 67; McMillan v. Robbins, 5 Ohio 28; 2 So. 646; Curtis v. Smith, 42 Iowa 
 
 Cairns v. Chabert, 3 Edw. Ch. (N. 665. 
 
 1
 
 809 ESTOPPEL TO DENY LANDLOED's TITLE. [§ 691 
 
 the lands are sold for taxes at public sale, during the tenancy with- 
 out his fault, he may purchase and set up his title thus acquired against 
 that of his landlord. Equity will regard him and all persons holding 
 under him, except purchasers without notice, as trustees for the 
 benefit of the landlord, and will not permit them to speculate on such 
 a purchase. ^^ 
 
 In Kansas the rule is that a tenant under no duty or obligation to 
 pay taxes on rented land may purchase the land at tax sale, and thus 
 acquire an adverse title as against his former landlord, which enables 
 him to resist the recovery of rent accruing after the tax sale.^*^ 
 
 The same doctrine prevails in Missouri, resting on the analogy to 
 a sale of the landlord's interest on execution. If a tenant purchases 
 at execution sale, he then becomes vested with his landlord's title, 
 not a hostile or adverse title, and is in possession in his own right. 
 The case is the same when applied to a purchaser at a tax sale. The 
 tax collector, like the sheriff in an execution, is the agent of the 
 debtor to sell his property to satisfy a charge or lien existing against 
 it. The title is acquired indirectly and by operation of law, but it is 
 by the act or neglect of the party and has the same legal effect as if he 
 had made a private conveyance. In such a sale the tenant may pur- 
 chase equally with any person, and the title that he acquires is the 
 landlord's title, and he may avail himself of it as a defense even 
 against his landlord or lessor.^'^ 
 
 § 691. The rule that denies to a tenant the right to dispute his 
 landlord's title cannot be so extended as to take away from him the 
 right to prove exactly what his relationship to the landlord originally 
 was.^^ The tenant may deny the making, or the validity, of the con- 
 tract by which the tenancy is alleged to have been created. He may 
 deny his sanity at the time the lease was made, and show that it is 
 vitiated by fraud on the part of the lessor.^^ If there is an admitted 
 tenancy, it is the duty of the court to rule out evidence in denial of the 
 landlord's title, the validity of his title not being at issue. Whore 
 the evidence is offered to disprove the tenancy, it is the duty of the 
 court to pass upon it in the first instance to determine whether it has 
 
 B^Waggener v. McLaughlin, 33 "« Smith v. Smith, 81 Tex. 45, 16 
 
 Ark. 195. But see Bettison v. Budd, S. W. 637; Uhlig v. Garrison, 2 Dak. 
 
 17 Ark. 546. 71, 77, 2 N. W. 253; Byrne v. Bee- 
 
 =" Smith V. Newman, 62 Kan. 318, son, 1 Doug. (Mich.) 179. 
 
 62 Pac. 1011; Weichselbaum v. Cur- ™ Byrne v. Beeson, 1 Doug, 
 
 lett, 20 Kan. 709. (Mich.) 179; Wilborn v. Whitfield, 
 
 " Higgins v. Turner, 61 Mo. 249. 44 Ga. 51.
 
 §§ 692, 693] ESTOPPEL to dexy landlord's title. 810 
 
 a proper bearing on that issue, while the weight and truth of testi- 
 mony is for the jury under proper instructions from the court.^" 
 
 Once the existence of a tenancy is admitted, the tenant is estopped 
 from disputing the landlord's title, but to dispute the existence of 
 such tenancy is allowable, and the tenant may deny the making or 
 validity of the contract by which such tenancy is alleged to have been 
 created.®^ Such was the case where there was a statutory prohibition 
 against leasing the lands in dispute. The tenants denied the existence 
 of the tenancy ; there could be no valid contract creating the relation 
 of landlord and tenant in regard to that land.^^ In passing upon the 
 admissibility of evidence the court should decide whether a tenancy 
 exists rather than to leave the decision of that question to the jury.®^ 
 
 § 692. The estoppel upon a tenant only extends to the land in- 
 cluded in the lease. Thus a lease of a portion of a tract does not pre- 
 clude the lessee from setting up an adverse claim to another part 
 which is not included in the lease, or to an undivided interest in the 
 entire tract.^* If a tenant takes possession under color of title of land 
 adjoining the leased premises and belonging to the landlord, his pos- 
 session so taken is adverse and will ripen into a fee. A landlord who, 
 by a lease, has restricted the possession and use of his tenant by metes 
 and bounds, to a part of a larger tract, cannot claim that his tenant's 
 possession under such a lease extends to that which, by the terms of the 
 lease, the tenant has no right to possess.^^ 
 
 § 693. The operation of the general rule of estoppel is not affected 
 by the fact that the tenant is in actual possession under a contract of 
 purchase, at the time he accepts the lease. By such act he effectually 
 recognizes the title and possession of the lessor.''^ From the applica- 
 tion of the same principle it follows that a person who takes a lease 
 from another, is estopped from showing that such person was but a 
 trustee for him.®'^ 
 
 «"Wilborn v. Whitfield, 44 Ga. 51. «'Pharis v. Jones, 122 Mo. 125, 26 
 
 "Byrne v. Beeson, 1 Doug. S. W. 1032; Read v. Allen, 63 Tex. 
 
 (Mich) 179; Uhlig v. Garrison, 2 154. See Texas Land Co. v. Wil- 
 
 Dak. 71, 98, 2 N. W. 253. liams, 51 Tex. 51, 61. 
 
 «^ Uhlig V. Garrison, 2 Dak. 71, 77, «« Locke v. Frasher, 79 Va. 409; 
 
 2 N. W. 253. Emerick v. Tavener, 9 Grat. (Va.) 
 
 «^Reed v. Todd, 1 Harr. (Del.) 220; Jordan v. Katz, 89 Va. 628, 16 
 
 138. S. E. 866. 
 
 «* Brenner V. Bigelow, 8 Kan. 496; "Lucas v. Brooks, 18 Wall. (U. 
 
 State V. Boyce, 109 N. Car. 739, 14 S.) 436; Jordan v. Katz, 89 Va. 628, 
 
 S E, 98_ 16 S. E. 866. In ejectment by land- 
 
 1 
 
 1
 
 811 ESTOPPEL TO DENY LANDLORD'S TITLE, [§ G94 
 
 Furthermore, the rule that a tenant is estopped to deny his land- 
 lord's title applies to a mortgagee of stock who becomes the tenant 
 of his mortgagor's landlord. The mortgagee cannot set up the exist- 
 ing lease to the mortgagor as a defense, even though the mortgagor 
 had not assigned or surrendered his term.^® 
 
 § 694. The parties may by their agreement waive the rule of law 
 that a tenant cannot deny his landlord's title. The object of such an 
 agreement would be that the question of title should be tried, but 
 that the tenant should derive no benefit from the possession; on the 
 contrary, that the landlord should have all the advantages arising 
 from actual possession, which are that the adverse party shall be 
 obliged to show a better right. The agreement reversed the usual 
 course of proceedings in ejectment, but it gave the tenant full right 
 to controvert his landlord's title. ''^ But if the landlord sets up the 
 claim to a fee, his tenant may show that he has a mere possessory 
 right. Wliere the landlord seeks to recover the possession he can do 
 so under the lease, but if he goes farther and claims the premises in 
 fee the tenant is not estopped from denying any right claimed by the 
 plaintiff greater or further than that of possession. This fully pro- 
 tects the landlord, who regains his possession, and the parties are then 
 in a proper position to litigate the title should they desire to do so.'^*' 
 
 A tenant is not estopped from denying his landlord's title and 
 setting up title in himself adverse to the landlord, as against a 
 stranger. The reason upon which the rule of a tenant's estoppel de- 
 pends is manifestly wanting, when a stranger, not the landlord nor 
 a .privy of the landlord, seeks to set it up. So the general doctrine 
 would apply that a stranger cannot set up an estoppel, for estoppels 
 must be mutual and can operate only between parties and privies.'^ 
 
 A lessee who has never gone into possession under his lease is free 
 to deny the title of the lessor.'^^ The mere fact of the execution of a 
 lease by a person would not create an estoppel against him. That 
 
 lord against tenant the latter can- '"Jochen v. Tibbells, 50 Mich. 33, 
 
 not defend by proof that the plain- 14 N. W. 690; McKie v. Anderson, 
 
 tiff was holding the title in trust 78 Tex. 207, 14 S. W. 576. 
 
 for the defendant. Porter v. May- "Cole v. Maxfield, 13 Minn. 235. 
 
 lleld, 21 Pa. St. 263. "Wright v. Graves, 80 Ala. 416; 
 
 *^ Goodman v. Jones, 26 Conn. Andrews v. Woodcock, 14 Iowa 397; 
 
 264; Phipps v. Sculthorpe, 1 B. & Ireton v. Ireton, 59 Kan. 92, 52 Pac. 
 
 Aid. 50. 74; Trustees of Green v. Robinson, 
 
 "''Mayor &c. v. Bridge Co., 4 Binn. Wright (Ohio) 436. 
 (Pa.) 283.
 
 695, 696] ESTOPPEL to. deny landlord's title. 812 
 
 1 
 
 would arise only from the occupancy of the premises under and by 
 virtue of the lease. In order that a lease shall operate to estop a 
 party therein named as lessee, who is in possession of the land therein 
 described, from denying the title of the lessor, it must appear that he - 
 has either obtained, or retained, possession under and by virtue of the !■ 
 lease. If controverted the fact of occupancy under the lease should 
 be submitted to the jury.'^^ 
 
 § 695. After the expiration of his lease, a tenant may disclaim and 
 disavow his tenancy without first surrendering possession of the leased 
 premises; but in order to make the holding adverse there must be a 
 clear, positive and continued disclaimer and disavowal of the land- 
 lord's title brought home to him by distinct notice.'^* The statute of 
 limitations, in the case of an adverse possession by a tenant, runs from 
 the time the landlord receives notice that the occupancy is hostile; 
 and a tenant is not required to yield possession and again enter the 
 premises.'^ ^ But while the term continues a tenant's possession is 
 not adverse to the title of the lessor unless made so by some act of 
 disseisin to which the lessor assents. A disclaimer by the tenant or 
 his attornment to a stranger during the continuance of the term will 
 not make his possession adverse.'" 
 
 § 696. Some overt act is necessary to make a tenant's holding ad- 
 verse and his silent determination to hold adversely is inefEectual to 
 accomplish that result without some outward change of possession.^'' 
 Some authorities lay doAvn the rule that the tenant's estoppel con- 
 tinues after the lease expires, until he has surrendered possession or j 
 given notice that he does not intend to hold in subordination to the 
 
 " Ireton v. Ireton, 59 Kan. 92, 52 W. Va. 236, 10 S. E. 402, s. c. 38 W. j 
 
 Pac. 74. Va. 607, 18 S. E. 762; Creekmur v. ' 
 
 " Wilkins v. Pensacola City Co., Creekmur, 75 Va. 430. In Georgia 
 36 Fla. 36, 18 So. 20; Whipple v. the doctrine seems to be that a pos- ' 
 Earick, 93 Ky. 121, 19 S. W. 237; session acquired originally through 
 Holman v. Bonner, 63 Miss. 131; a tenancy can never become ad- 
 Ross v. McManigal, 61 Neb. 90, 84 verse. Dasher v. Ellis, 102 Ga. 830, 
 N. W. 610; Messley v. Ladd, 29 Ore. 30 S. E. 544. 
 
 354, 45 Pac. 904; De Jarnette v. Mc- "Greenwood v. Moore, 79 Miss. 
 
 Daniel, 93 Ala. 215, 9 So. 570; 201, 30 So. 609. 
 
 League v. Snyder, 5 Tex. Civ. App. ''^ Sutton v. Casselleggi, 5 Mo. App. 
 
 13, 23 S. W. 825; Flanagan v. Pear- 111; Flanagan v. Pearson, 61 Tex. 
 
 son, 61 Tex. 302; Stacy v. Bostwick, 302. 
 
 48 Vt. 192; Neff v. Ryman, 100 Va. " Hogsett v. Ellis, 17 Mich. 351. 
 521, 42 S. E. 314; Voss v. King, 33
 
 813 ESTOPPEL TO DENY LANDLORD'S TITLE. [§ G9G 
 
 title under which he entered."® But courts are ready to assume that 
 open and notorious acts of repudiation are brought home to the land- 
 lord and to hold the tenant's possession adverse on proof of such 
 facts.'^^ A tenant remaining in possession, claiming as owner, after 
 his lease has been surrendered by mutual consent, becomes an ad- 
 verse holder in respect to his former landlord.®*' 
 
 The question whether a tenant holds possession adversely to his 
 former landlord is in every instance one of fact dependent upon the 
 accompanying circumstances, and should be submitted to a jury for 
 determination,®^ The landlord's knowledge that the tenant was hold- 
 ing adversely need not be proved beyond all doubt. Stronger and 
 clearer proof is required in some cases than in others, but the law does 
 not in civil cases require proof beyond all doubt, or all reasonable 
 doubt, and such proof is not required in a case like this.®^ But 
 declarations of the tenant to members of the landlord's family and not 
 coming to the landlord's knowledge are not sufficient notice to make 
 the holding adverse.®^ 
 
 A tenant cannot by merely ceasing to pay rent to his lessor and pay- 
 ing it to another person, change the tenancy so as to enable himself 
 to dispute the title of his landlord.®* Mere non-payment and non- 
 demand for rent, no matter how long continued, are insufficient to bar 
 landlord's title whatever effect they may have on his right to recover 
 rent.®^ But non-payment of rent might raise a presumption that there 
 had been an actual ouster, and in that case the statute of limitations 
 would run.®® 
 
 A tenant at will by claiming to hold in his own right and apprising 
 the landlord of such claim may so far throw off his tenancy as to com- 
 mence a possession adverse to his landlord.®^ In the absence of statute, 
 a tenant at will may terminate his tenancy at his pleasure, and he 
 may then hold the same premises adversely to his former landlord.®® 
 
 '^Alderson v. Marshall, 7 Mont. '^Reusens v. Lawson, 91 Va. 226, 
 
 288, 16 Pac. 576; Jackson v. Ayers, 21 S. E. 347. 
 
 14 Johns. (N. Y.) 224; Towne v. ^^ Stacy v. Bostwick, 48 Vt. 192. 
 
 Butterfield, 97 Mass. 105; Willison *• Den v. Davis, 4 Dev. & B. (N. 
 
 V. Watkins, 3 Pet. (U. S.) 43; Lucas Car.) 300. 
 
 v. Brooks, 18 Wall. (U. S.) 436; ^^ Campbell v. Shipley, 41 Md. 81, 
 
 Quinn v. Quinn, 27 Wis. 168. 96. 
 
 " Morton v. Lawson, 1 B. Mon. "' Camp v. Camp, 5 Conn. 291, 303. 
 
 (Ky.) 45. «^Hall v. Dewey, 10 Vt. 593; North 
 
 ^"Meridian Land &c. Co. v. Ball, v. Barnum, 10 Vt. 220. 
 
 68 Miss. 135, 8 So. 316. ^ Hudson v. Wheeler, 34 Tex. 356. 
 
 " Lamme v. Dodson, 4 Mont. 560, 
 2 Pac. 298.
 
 § 697] ESTOPPEL TO DENY LANDLORD'S TITLE. 814 
 
 § 697. The effect of a possession previous to the acceptance of a ■ 
 lease on the right to dispute the title thus acknowledged has been 
 much discussed and differently ruled. The best opinion is that an ^ 
 anterior possession does not vary the application of the rule; on " 
 the ground that although the party asserting the estoppel may not have 
 lost the advantage of parting with possession he may have been led into 
 some omission or conduct prejudicial to his title which otherwise 
 would not have been.«» It is a well established general rule that a 
 lessee is estopped from denying his lessor's title, although he did not 
 obtain possession originally from such lessor, or enter under such 
 title.^" Every letting and every acceptance of an attornment involves 
 an implied if not an express undertaking that the tenant shall peace- 
 ably enjoy the premises as against the landlord ; that is to say, that 
 proceedings for the assertion of the hostile title shall not be insti- 
 tuted. This undertaking to forbear suit, whether express or implied, 
 is as effectual and sufficient a consideration for the promise to pay 
 rent, as an original delivery of possession would be. It is no answer 
 to say that the tenant may be liable to one landlord by virtue of an 
 original lease and to another by virtue of a subsequent attornment; 
 even if this result be assumed in argument, it is still no answer. To 
 avoid the assertion of a hostile title, one may lawfully contract to pay 
 for his own ; and if the threatened litigation be foreborne, he is bound 
 by his promise; and so the tenant holding under a lessor where title 
 is unimpeachable may, if he will, undertake to pay rent to every 
 stranger who demands it. Such demand implies the threat of litiga- 
 tion and dispossession if the demand be refused ; and if made in good i; 
 faith, and without fraud, or other improper practices to induce con- ^ 
 cession, and if the tenant yield to it, with full knowledge of all the 
 facts, it is difficult to see why he should not be bound by his promise."^ 
 
 The doctrine of estoppel applies where a tenant attorns to a land- 
 lord who did not originally let him into possession. It is immaterial 
 how he first went into possession except in case of mistake or of 
 fraud, or misrepresentation on the part of the landlord.^^ Where 
 
 *" Farmer v. Pickens, 83 N. Car. rence, 51 N. Y. 219; Hartzog v. Hub- 
 
 549. bard, 2 Dev. & B. L. (N. Car.) 241; 
 
 "*Lyon V. Washburn, 3 Colo. 201; Thayer v. Society &c., 20 Pa. St. 
 
 Bowdish V. City of Dubuque, 38 60. 
 
 Iowa 341; McConnell v. Bowdry, 4 "Lyon v. Washburn, 3 Colo. 201. 
 
 T. B. Mon. (Ky.) 392, 400; Saunders «' Tyler v. Davis, 61 Tex. 674; 
 
 V. Moore, 14 Bush (Ky.) 97; Par- Hamilton v. Pittock, 158 Pa. St. 457, 
 
 rott V. Hungelburger, 9 Mont. 523, 27 Atl. 1079; Bodkin v. Arnold, 45 
 
 24 Pac. 14; Jackson v. Ayers, 14 W. Va. 90, 30 S. E. 154. 
 Johns. (N. Y.) 224; Prevot v. Law- ,S
 
 815 ESTOPPEL TO DENY LANDLORD'S TITLE. [§ 698 
 
 persons, while in possession of land not as tenants to any one and 
 owing no allegiance to any one as landlord, took leases under some one 
 claiming title and held under him, their possession from thence- 
 forward is the possession of the landlord, and they will be estopped to 
 deny his title.^^ Mere payment of rent has been regarded as per se 
 less conclusive than express attornment, and more generally open to 
 explanation,^* and so has a mere acknowledgment^^ or ofEer to pay 
 rent.®^ 
 
 A tenant is estopped to deny his landlord's title even though the 
 execution of the lease was obtained by the landlord's assertion of a 
 title in himself and a threat to evict the tenant who was already in 
 possession.^^ 
 
 The tenant is allowed to contest the title of the landlord, when 
 there has been mistake or misrepresentation, and his own title is 
 good at least quoad the one he seeks to dispute."^ Where the mistake 
 was clear it was held that even submitting to a distress,^*^ an express 
 agreement^"" or attornment,"^ or even receiving a lease,^**^ would 
 not create an estoppel. But if no mistake exists, the estoppel is com- 
 plete and payment of rent or agreement to hold under the lessor^°^ or 
 submitting to a distress^*'* is conclusive. 
 
 § 698. In California an exception to the general rule is made in 
 
 case the tenant did not enter into possession under the landlord's 
 title, but was in possession at the time he took the lease. According 
 to this doctrine the bare possession of the tenant at the time the lease 
 is given is sufficient to take the case out of the operation of the general 
 rule without there being, in addition, some force, fraud, misrepre- 
 sentation, or mistake induced by the landlord. The doctrine of 
 
 ®' Patterson v. Hansel, 4 Bush ^°" Ingraham v. Baldwin, 9 N. Y. 
 
 (Ky.) 654. 45. 
 
 »^Shelton v. Carrol, 16 Ala. 148; "> Cornish v. Searell, 8 B. & C. 
 
 Bergman v. Roberts, 61 Pa. St. 497; 471. 
 
 Doe V. Barton, 11 A. & E. 307; Doe '"= Shultz v. Elliott, 11 Humph, 
 
 v. Francis, 2 Moo. & R. 57. (Tenn.) 183. 
 
 »^ Washington v. Conrad, 2 "''Miller v. Lang, 99 Mass. 13; 
 
 Humph. (Tenn.) 562; Pearce v. Ingraham v. Baldwin, 9 N. Y. 45; 
 
 Nix, 34 Ala. 183. Doe v. Wiggins, 4 A. & E. (N. S.) 
 
 '« Stokes V. McKibbin, 13 Pa. St. 367, 45 E. C. L. 365; Hall v. Butler, 
 
 267. 10 A. & E. 204. 
 
 ^ Harrisburg School Dist. y. Long ^'^ Cooper v. Blandy, 2 Bing. N. 
 
 (Pa.), 10 Atl. 769. C. 45; Panton v. Jones, 3 Camp. 
 
 '« Doe V. Brown, 7 A. & E. 447. 372. 
 
 =° Knight V. Cox, 18 C. B. 645, 86 
 E. C. L. 645.
 
 699] 
 
 ESTOPPEL TO DEXT LAXDLORD's TITLE. 
 
 «1 
 
 816 
 
 estoppel is designed to protect the landlord in his actual possession 
 against the trickery or sharp practice of the tenant, not to enable him 
 to impose upon the tenant.^"^ At best, the landlord gains a prima facie 
 case, and casts upon the tenant the burden of overcoming it, for he 
 has but to prove the lease and rest.^"^ Unless the tenant overcomes 
 this presumption by showing paramount title in himself, or in those 
 under whom he claims, the landlord must prevail.^*^^ The law in 
 Michigan is similar to that in California in this respect.^"^ 
 
 § 699. "The relation of landlord and tenant once established at- 
 taches to all who may succeed to the possession through or under the 
 tenant, whether immediately or remotely, the succeeding tenant be- 
 ing as much bound by the acts and admissions of his predecessor as 
 if they were his own."^°® ' Thus, the estoppel which binds a tenant 
 
 "^Tewksbury v. Magraff, 33 Cal. 
 237; Franklin v. Merida, 35 Cal. 
 558, 566; Baldwin v. Temple, 101 
 Cal. 396, 35 Pac. 1008; Davis v. Mc- 
 Grew, 82 Cal. 135, 23 Pac. 41. 
 
 loeperalta v. Ginochio, 47 Cal. 459; 
 Franklin v. Merida, 35 Cal. 558, 
 575. 
 
 ^°' Holloway v. Galliac, 47 Cal. 474. 
 
 i<^ Fuller v. Sweet, 30 Mich. 237. 
 In this case the ratio decidendi is 
 stated as follows: "Where a person 
 in possession agrees by parol to pay 
 money to a person out of possession, 
 and who has no title, it is impos- 
 sible to find any sensible ground for 
 sustaining such a promise which 
 would not sustain any other prom- 
 ise without consideration. Where 
 there is possession given there is 
 an actual consideration, which may 
 render it also reasonable enough, 
 under ordinary circumstances, to re- 
 quire the landlord to be put back 
 in statu quo. But a person who 
 never had or gave up possession to 
 the tenant, is left in statu quo by 
 the tenant's remaining in posses- 
 sion, and in reason should have no 
 further claim. If he has it must 
 be by some peculiar and anomalous 
 rule, for which we have found no 
 
 support. Such a relation, if valid 
 at all, must rest on a valid contract, 
 and the only consideration for the 
 contract would be proof of title, 
 not covering merely the period of 
 the tenancy, but outlasting it. 
 When that is proved a right of pos- 
 session is proved with it, and a 
 further holding by the tenant would 
 be wrongful, and subject him to 
 eviction. But whether it could be 
 made the basis of an implied con- 
 tract to pay rent any longer is a 
 different question. . . . " 
 
 ^'^ Arkansas: Earle v. Hale, 31 
 Ark. 470. Illinois: Sexton v. Car- 
 ley, 147 111. 269, 35 N. E. 471. Mis- 
 souri: Stagg V. Eureka &c. Co., 56 
 Mo. 317; Merchants' Bank &c. v. 
 Clavin, 60 Mo. 559. North Carolina: 
 Doe V. Lachenour, 12 Ired. L. (N. 
 Car.) 180; Stewart v. Keener, 131 
 N. Car. 486, 42 S. E. 935; Den v. 
 Alexander, 4 Dev. & B. (N. Car.) 
 40; Conwell v. Mann, 100 N. Car. 
 234, 6 S. E. 782. New Hampshire: 
 Thorndike v. Norris, 24 N. H. 454. 
 Oregon: Jones v. Dove, 7 Ore. 467. 
 South Carolina: Milhouse v. Patrick, 
 6 Rich. L. (S. Car.) 350. Tennessee: 
 Washington v. Conrad, 2 Humph. 
 (Tenn.) 562. Texas: Oury v.
 
 817 
 
 ESTOPPEL TO DENY LANDLORD'S TITLE, 
 
 [§■ 700 
 
 against denying the title of his landlord is equally binding on one 
 to whom the tenant has conveyed the premises in fee.^^° A mere 
 licensee from a tenant is bound by the estoppel not to deny the land- 
 lord's title because he, too, comes in under the lease."^ The purchaser 
 of a leasehold interest in land at judicial sale will not be permitted 
 to dispute the title of the landlord under whom he holds the estate.^^^ 
 Knowledge of the tenancy by those succeeding the tenant in pos- 
 session is not material, provided they accept possession from him. 
 Under a possession thus acquired, the occupants are bound by all the 
 obligations of loyalty to the title resting on the original tenancy. ^^^ 
 When a tenant takes advantage of his position to turn over the land 
 occupied by him to the holder of a conflicting title, such holder will 
 not be regarded otherwise than as an intruder, who cannot set up title 
 under a third person or in himself ta defeat an action of ejectment.^" 
 
 § 700. That the estoppel enures, both as to its benefit and burden 
 to privies in law,^^^ in blood,^^'' and in estate"^ is a rule as applicable 
 
 Saunders, 77 Tex. 278, 13 S. W. 1030. 
 Vermont: Reed v. Shepley, 6 Vt. 
 602; Greeno v. Munson, 9 Vt. 37; 
 Derrick v. Luddy, 64 Vt. 462, 24 Atl. 
 1050. Virginia: Emerick v. Tav- 
 ener, 9 Grat. (Va.) 220; NefE v. 
 Ryman, 100 Va. 521, 42 S. E. 314; 
 Allen v. Paul, 24 Grat. (Va.) 332. 
 West Virginia: Allen v. Bartlett, 20 
 W. Va. 46; Genin v. Ingersoll, 2 W. 
 Va. 558. United States: Blight v. 
 Rochester, 7 Wheat. 535, 547. 
 
 ""Emerick v. Tavener, 9 Grat. 
 (Va.) 220. 
 
 "^ Doe v. Lachenour, 12 Ired. L. 
 (N. Car.) 180. A party residing 
 with tenant and helping to pay the 
 rent, thereby admits landlord's 
 title, and can acquire no right 
 against the landlord by adverse pos- 
 session. Hodgkin v. McVeigh, 86 
 Va. 751, 10 S. E. 1065. 
 
 "^Hentiz v. Pipher, 58 Kan. 788, 
 51 Pac. 229. 
 
 "^Reed v. Shepley, 6 Vt. 602; 
 Greeno v. Munson, 9 Vt. 37. 
 
 "* Kepley v. Scully, 185 111. 52, 57 
 N. E. 187; Hardin v. Forsythe, 99 
 Jones L. & T.— 52 
 
 111. 312; Anderson v. Gray, 134 111. 
 
 550, 25 N. E. 843; Swift v. Gage, 26 
 Vt. 224. An adverse claimant of 
 land cannot collusively with the 
 tenant obtain possession to the 
 prejudice of the title of the- land- 
 lord when he goes into possession 
 by collusive concert with the ten- 
 ant. He at once becomes identified 
 with him — shares and stands in his 
 place, and he cannot resist the land- 
 lord's title where the tenant can- 
 not do so. As he goes into posses- 
 sion with and under the tenant he 
 is bound by the allegiance the lessee 
 owes the lessor, and he cannot 
 throw it off at his will and pleas- 
 ure. Springs v. Schenck, 99 N. Car. 
 
 551, 6 S. E. 405. 
 
 ""Parer v. Manning, 7 Term R. 
 533; Doe v. Austin, 9 Bing. 41. 
 
 ""Blantire v. Whitaker, 11 
 Humph. (Tenn.) 313; Den v. Mur- 
 ray, 6 Ired. L. (N. Car.) 62. 
 
 "'Louer v. Hummel, 21 Pa. St. 
 450; Hilbourn v. Fogg, 99 Mass. 11; 
 Palmer v. Ekins, 2 Ld. Raym. 1550; 
 Russell V. AUard, 18 N. H. 222.
 
 § 701] ESTOPPEL TO DENY LANDLORD'S TITLE. 818 
 
 to this species of estoppel as to the strict estoppel at common law. 
 The rule seems settled that a tenant can no more dispute the title of 
 his lessor when asserted by an assignee of the latter than when it is 
 held by the lessor himself. But the tenant may show that the title 
 was never validly transferred, ^^^ Not only are those succeeding to 
 the interest of the tenant placed under the same restriction that he is 
 under, but all those who succeed to the interest of the original land- 
 lord are entitled to the same benefits which such landlord could claim. 
 So it may be stated as a general rule that a tenant is estopped to deny 
 the title of his landlord's assignee to the same extent that he is pre- 
 cluded from controverting the title of the landlord himself.^^^ An 
 assignee of a leasehold would have the same immunity against a sub- 
 lessee in regard to his title as would the original lessee who granted 
 the sub-lease. ^2" The tenant may, however, attack the validity of a 
 transfer made by the landlord, and his right to do so continues even 
 though he has paid rent to such third party under a misapprehension 
 as to the title. "^ 
 
 The rule that a tenant cannot dispute his landlord's title may be 
 invoked by an administrator of a deceased landlord upon a proper case 
 for an administrator to maintain a suit in respect to the land.^^^ 
 A tenant's allegiance to his landlord's title continues although the 
 landlord dies and the property descends to heirs who are unknown to 
 the tenant.^^^ 
 
 § 701. The burden is on the tenant, in an action for the rent or to 
 recover possession of the premises to establish that the case falls 
 within some exception of the general rule stated that he would avail 
 himself of the right to dispute the landlord's title.^^* A landlord 
 need not show good title against all the world nor need he give any 
 
 "^ Streeter v. Ilsley, 147 Mass. 141, S.) 535, 547; Den v. Alexander, 4 
 
 16 N. E. 776; Glllett v. Mathews, 45 Dev. & B. (N. Car.) 40. 
 
 Mo. 307; Dunshee v. Grundy, 15 "" Dunshee v. Grundy, 15 Gray 
 
 Gray (Mass.) 314; Bergman v. Rob- (Mass.) 314. 
 
 erts, 61 Pa. St. 497; Louer v. Hum- "* De Wolf v. Martin, 12 R. I. 
 
 mel, 21 Pa. St. 450. 533. 
 
 "^Streeter v. Ilsley, 147 Mass. i=' State v. Votaw, 13 Mont. 403, 
 
 141, 16 N. E. 776; Dunshee v. 34 Pac. 315. 
 
 Grundy, 15 Gray (Mass.) 314; *» Fowler v. Simpson, 79 Tex. 611, 
 
 Funk v. Kincaid, 5 Md. 404; 15 S. W. 682. 
 
 Palmer v. Melson, 76 Ga. 803; ^Derrick v. Luddy, 64 Vt. 462, 
 
 Thorndike v. Norris, 24 N. H. 454; 24 Atl. 1050. 
 Blight V. Rochester, 7 Wheat. (U. 
 
 1
 
 819 ESTOPPEL TO DENT LANDLORD'S TITLE. [§ '<'01 
 
 evidence of title at all, the only proof required being that the de- 
 fendant entered into possession as his tenant. ^^^ 
 
 In an action for rent it is sufficient to show a contract with the 
 plaintiif and a holding under him, the plaintifE's title and right of 
 possession are immaterial and therefore he is under no obligation to 
 prove his title.^^^ For a tenant who admits the execution of a lease to 
 defend an action for rent, it is necessary for him to allege either that 
 he had not entered under the lease, or that he had been evicted by a 
 paramount title or that possession had been surrendered. It is no 
 defense to plead that the plaintiff fraudulently alleged that he was 
 the owner and thereby induced the defendant to accept a lease; and 
 that thereafter the defendant had attorned and paid rent to the true 
 owner.^-^ 
 
 Where plaintiff in an action of forcible detainer pleads a written 
 lease by the terms of which defendant was to surrender possession 
 at the expiration of the term, he is not required to plead title and in 
 such case no issue involving title to the property can arise. ^^^ And 
 if a lessee holds over after the expiration of his term and the land- 
 lord brings ejectment against him, the landlord need produce no 
 evidence of title except the lease by which the term was created.^^a 
 In any action by a landlord against his tenant to recover possession, 
 it is immaterial whether he had any title at the time the contract of 
 lease was made.^^** 
 
 The nature of the interest covered by a demise does not affect the 
 rule as to estoppel to deny title, provided only that the subject-matter 
 was an interest in real estate. Thus the general rule has been ap- 
 plied in the case of a lease of a party wall,^^^ and where the locus 
 was a building which stood on rented land.^^^ However, it has been 
 
 ^^ Cressler v. Williams, 80 Ind. "" South v. Marcum, 15 Ky. L. R. 
 
 366. 339. 
 
 i=«Bartlett v. Robinson, 52 Neb. *" Mackin v. Haven, 187 111. 480, 
 
 715, 72 N. W. 1053; Voss v. King, 58 N. E. 448, affirming 88 111. App. 
 
 33 W. Va. 236, 10 S. E. 402, s. c. 38 434. 
 
 W. Va. 607, 18 S. E. 762. "^Pool v. Lamb, 128 N. Car. 1, 37 
 
 i^^Nissen v. Turner, 50 Neb. 272, S. E. 953. Where the boundary be- 
 69 N. W. 778; Mosher v. Cole, 50 tween two farms was disputed an 
 Neb. 636, 70 N. W. 275; Fordyce v. agreement fixing a temporary boun- 
 Young, 39 Ark. 135; Reynolds v. dary was held not to create a ten- 
 Lewis, 59 Cal. 20. ancy between the owner on one 
 
 "'Browne v. Haseltine, 9 S. D. side who occupied land to which 
 
 524, 70 N. W. 648. he had good title. It was a mere 
 
 "'Mattox V. Helm, 5 Litt. (Ky.) license to occupy, and no estoppel 
 
 185. resulted. Bishop v. Babcock, 22 Vt. 
 
 295.
 
 703] 
 
 ESTOPPEL TO DENT LANDLORD S TITLE. 
 
 820 
 
 held that one who usurps the right to keep a public ferry, in violation 
 of local statutes, cannot claim the allegiance from his lessee which is 
 due from a tenant to his landlord. Another clear ground upon which 
 to rest such a decision is that one who usurps a franchise, and makes 
 contracts based on it, cannot be allowed to enforce such contracts in 
 the courts of the country on grounds of public policy.^^^ 
 
 § 702. Where the tenant has been induced to accept the lease by 
 misrepresentation, fraud or trick practiced upon him by the lessor, he 
 is not estopped from setting up a superior title to that of the lessor. 
 It matters not whether the deception practiced originated in volun- 
 tary falsehood or in simple mistake, for the immunity it confers 
 springs not so much from the fraud of the usurper, as from the 
 wrong which the deception would otherwise work on the rights of the 
 lessee.^^* For a party in possession of land to accept a lease from a 
 stranger in ignorance of his rights, or in entire ignorance of its pur- 
 port and effect, does not preclude him from impeaching the validity 
 of the stranger's title.^^^ "The exception is as well established as the 
 rule itself that where the tenant is induced to accept the lease by the 
 employment of trick, the suggestion of falsehood or the use of undue 
 promises or threats, such acceptance will not close his mouth against 
 the assertion of a title superior to that residing in the lessor. This 
 is so even though at the time of acceptance the lessee be not in the 
 occupancy of the demised premises. But the exception is more 
 stringently applicable where he, who is improperly prevailed on to 
 attorn as tenant, is in peaceable occupancy of the land."^^*' 
 
 "^Milton v. Haden, 32 Ala. 30. 
 
 ^^Mays v. Dwight, 82 Pa. St. 462; 
 Baskin v. Seechrist, 6 Pa. St. 154. 
 
 i'=Cain v. Gimon, 36 Ala. 168; 
 Wiggin V. Wiggin, 58 N. H. 235. 
 
 "'Baskin v. Seechrist, 6 Pa. St. 
 154. Same principle affirmed in 
 Robins v. Kitchen, 8 Watts (Pa.) 
 390; Hockenbury v. Snyder, 2 W. 
 & S. (Pa.) 240; Gleim v. Rise, 6 
 Watts (Pa.) 44; Thayer v. Society 
 &c., 20 Pa. St. 60; Mays v. Dwight, 
 82 Pa. St. 462. Alabama: Blanken- 
 ship V. Blackwell, 124 Ala. 355, 27 
 So. 551; Farris v. Houston, 74 Ala. 
 162. California: Pacific &c. Ins. Co. 
 V. Stroup, 63 Cal, 150, 153; Knowles 
 V. Murphy, 107X:al. 107, 40 Pac. 111. 
 
 Illinois: Young v. Heffernan, 67 111. 
 App. 354. Maine: People's Loan &c. 
 Asso. v. Whitmore, 75 Me. 117. 
 Michigan: Michigan &c. R. v. Bul- 
 lard, 120 Mich. 416, 79 N. W. 635. 
 Missouri: Higgins v. Turner, 61 Mo. 
 249; Suddarth v. Robertson, 118 Mo. 
 286, 24 S. W. 151. New Hampshire: 
 Wiggin V. Wiggin, 58 N. H. 235. 
 South Carolina: Givens v. Mullinax, 
 4 Rich. L. (S. Car.) 590. Tennessee: 
 Hammons v. McClure, 85 Tenn. 65, 
 2 S. W. 37. Texas: Hammers v. 
 Haurick, 69 Tex. 412, 7 S. W. 345. 
 Vermont: Swift v. Dean, 11 Vt. 323. 
 Virginia: Alderson v. Miller. 15 
 Grat. (Va.) 279; Locke v. Frasher. 
 79 Va. 409. West Virginia: Bodkin
 
 821 ESTOPPEL TO DEXY LAXDLORD's TITLE. [§ 702 
 
 The distinction has been made, however, that a person in possession, 
 accepting a lease from an outstanding title, may show that his acknowl- 
 edgment of such title was induced by imposition or fraud, without sur- 
 rendering possession; but that a party entering into possession under 
 a lease, cannot dispute the validity of his landlord's title, even where 
 the lease was induced by fraud, without first surrendering the posses- 
 sion obtained under the lease/^^ Yet even where the tenant went 
 into possession under the lease, if there be fraud on the part of the 
 landlord in the execution of the lease, and he is unable by reason of 
 insolvency to indemnify the tenant for rents wrongfully exacted, the 
 tenant may, while in possession, purchase a superior title if he does 
 so in good faith, from a well-grounded fear of eviction, and may 
 rely on the title thus acquired in resisting a suit by the landlord for 
 possession.^^^ And where a lessee goes into the occupation of land 
 under a lease, it is nowhere disputed that he may, in case of fraud, 
 misrepresentation, or mistake, surrender possession and relieve him- 
 self of the estoppel.^^" 
 
 Where a tenant himself participates in the fraud, he has no right 
 to dispute his landlord's title on the ground that it was fraudulent."** 
 The nature of the defect in the landlord's title is immaterial on the 
 question of estoppel. In order to discharge a tenant from the 
 estoppel which ordinarily arises, it is necessary not only that a false 
 representation of ownership be made by the landlord, but that it was 
 made for the purpose of inducing the tenant to accept the lease, and 
 did in fact induce him to accept it.^*^ 
 
 But fraudulent representations of a landlord inducing tenant to 
 
 pay rent have been held not to remove the estoppel where tenant does 
 
 not surrender possession of the premises as soon as he discovers the 
 fraud. "2 
 
 v. Arnold, 45 W. Va. 90, 30 S. E. 154. Y.) 401; Crockett v. Althouse, 35 
 
 Owner of land conveyed it and took Mo. App. 404. 
 
 a lease back from the grantee. He "'Gallagher v. Bennett, 38 Tex. 
 
 subsequently attempted to attack 291. 
 
 the validity of the conveyance as "" Crockett v. Althouse, 35 Mo. 
 
 obtained under duress. Held he App. 404. 
 
 could not do so without first show- "" Tufts v. Du Bignon, 61 Ga. 322, 
 
 ing the invalidity of the lease. Wil- 328; Gleaton v. Gleaton, 37 Ga. 650. 
 
 liams V. Wait, 2 S. D. 210, 49 N. W. "^ Camarillo v. Penlon, 49 Cal. 
 
 209. 202. 
 
 "'Jackson v. Spear, 7 Wend. (N. ^^^Kiernan v. Terry, 26 Ore. 494, 
 
 38 Pac. 671.
 
 703] 
 
 ESTOPPEL TO DENT LAN^DLOP.D S TITLE. 
 
 822 
 
 § 703. Showing transfer or expiration of landlord's title. — Al- 
 though a tenant cannot dispute or gainsay the title of his landlord 
 so long as it remains as it was at the time the tenancy commenced, 
 and no fraud has been practiced; yet it may be shown that the title 
 under which the tenant has entered has expired or has been ex- 
 tinguished by operation of law.^*^ In some cases it has been insisted 
 that the determination of the lessor's title would not avail the lessee, 
 unless the latter had attorned to the new owner.^** But this require- 
 ment which seems to rest on a misconception of the real ground of the 
 defense, has not been insisted upon;^'*^ and it nowhere seems to be 
 held that an eviction of the tenant is necessary to enable him to show 
 the expiration of the landlord's title.^*^ 
 
 The tenant may also show that, since the commencement of the 
 tenancy, he has acquired a title consistent with that admitted by the 
 demise.^*^ This rule applies whether the action be for the recovery 
 
 "'Arkansas: Bettison v. Budd, 17 
 Ark. 546. Alabama: Randolph v. 
 Carlton, 8 Ala. 606; Hammond v. 
 Blue, 132 Ala. 337, 31 So. 357. 
 Florida: Robertson v. Biddell, 32 
 Fla. 304, 13 So. 358; Winn v. Strick- 
 land, 34 Fla. 610, 16 So. 606. Illi- 
 nois: Corrigan v. Chicago, 144 111. 
 537, 33 N. E. 746; Born v. Stafford, 
 93 111. App. 10. Indiana: Kenney v. 
 Doe, 8 Blackf. (Ind.) 350; Millikan 
 V. Davenport, 5 Ind. App. 257, 31 
 N. E. 1122. Iowa: Stout v. Merrill, 
 35 Iowa 47. Kentucky: Sabastian 
 V. Ford, 6 Dana (Ky.) 436; Casey 
 v. Gregory, 13 B. Mon. (Ky.) 505. 
 Maine: Ryder v. Mansell, 66 Me. 
 167. Maryland: Presstman v. Sill- 
 jacks, 52 Md. 647; Keys v. Forrest, 
 90 Md. 132, 45 Atl. 22. Massachu- 
 setts: Lamson v. Clarkson, 113 
 Mass. 348. Michigan: McGufSe v. 
 Carter, 42 Mich. 497, 4 N. W. 211; 
 Sherman v. Spalding, 126 Mich. 561, 
 85 N. W. 1129. Mississippi: Rhyne 
 V. Guevara. 67 Miss. 139, 6 So. 736. 
 Missouri: Cook v. Basom, 164 Mo. 
 594, 65 S. W. 227; Robinson v. 
 Troup Min. Co., 55 Mo. App. 662. 
 New Hampshire: Russell v. Allard, 
 
 18 N. H. 222; Page v. Kinsman, 43 
 N. H. 328. New Jersey: Den v. Ash- 
 more, 22 N. J. L. 261. New York: 
 Jackson v. Rowland, 6 Wend. 666; 
 Jackson v. Davis, 5 Cow. 123. North 
 Carolina: Lancashire v. Mason, 75 
 N. Car. 455. Ohio: Devacht v. New- 
 sam, 3 Ohio 57. Oregon: West 
 Shore Mills Co. v. Edwards, 24 Ore. 
 475, 33 Pac. 987. Pennsylvania: 
 Heckart v. MeKee, 5 Watts (Pa.) 
 385; Newell v. Gibbs, 1 W. & S. 
 (Pa.) 496. English: Mountnoy v. 
 Collier, 1 E. & B. 630, 72 E. C. L. 
 630, 16 E. L. & Eq. 232; England v. 
 Slade, 4 Term R. 682; Doe v. Ed- 
 wards, 5 B. & Ad. 1065. 
 
 "*Holt V. Martin, 51 Pa. St. 499; 
 Evertsen v. Sawyer, 2 Wend. (N. 
 Y.) 507. 
 
 "'Simers v. Saltus, 3 Denio (N. 
 Y.) 214; Whalin v. White, 25 N. Y. 
 462. 
 
 "^Binney v. Chapman, 5 Pick. 
 (Mass.) 124; Jackson v. Davis, 5 
 Cow. (N. Y.) 123; Den v. Ashmore, 
 22 N. J. L. 261; Clarke v. Byne, 13 
 Ves. 383; England v. Slade, 4 Term 
 R. 682. 
 
 "^Millikan v. Davenport, 5 Ind.
 
 823 ESTOPPEL TO DENY LANDLORD'S TITLE. [§' 703 
 
 of the premises, or for rent accrued after the extinguishment of the 
 landlord's title. Thus, a tenant may show that his landlord had a 
 limited estate only which expired by its own limitation before the 
 cause of action accrued, as where he held an estate for the life of an- 
 other, who has died during the term ;'^^^ or that the landlord had sold 
 or conveyed the land, or had been evicted by title paramount, or that 
 his title had been sold under execution and conveyed.^'*^ Thus it is 
 open to the tenant to show that the landlord's interest has been sold at 
 a tax or execution sale,^^'' or that a mortgage executed by the landlord 
 prior to the lease has been foreclosed.^ ^^ 
 
 Where a tenant bought a title to the demised land during the term 
 at a sheriff's sale, this title extinguished the landlord's title and could 
 be set up as a bar to an action for rent or an action to recover pos- 
 session of the premises.^^^ By setting up the title which has been 
 transferred to him from the lessor, a tenant affirms rather than denies 
 his landlord's title, and it makes no difference as far as the prin- 
 ciple is concerned whether the conveyance is directly from the land- 
 lord or from a trustee having a prior lien.^^^ 
 
 A default in the condition of an outstanding mortgage is one 
 mode in which a lessor's title may come to an end, and a lessee who 
 has procured an assignment of the mortgage would not be estopped 
 from asserting his rights as assignee and the default in the condition 
 of the mortgage, to protect his possession when sued in ejectment by 
 the lessor. ^^* Wlien the title of the lessor is subsequently taken from 
 him and determined, and the lease thereby at an end, the lessee is not 
 precluded from availing himself of the truth; in covenant against him 
 for non-payment of rent, he may plead the determination of the 
 
 App. 257, 31 N. E. 1112; Casey v. ""Keys v. Forrest, 90 Md. 132, 45 
 
 Gregory, 13 B. Mon. (Ky.) 505; Atl. 22; "Wolf v. Johnson, 30 Miss. 
 
 Ryder v. Mansell, 66 Me. 167. 513. 
 
 "'Corrigan v. Chicago, 144 111. "'Stout v. Merrill, 35 Iowa 47; 
 
 537, 33 N. E. 746; St. John v. Quit- Wolf v. Johnson, 30 Miss. 513; 
 
 zow, 72 111. 334; Lamson v. Clark- "= Hetzel v. Barber, 69 N. Y. 1; 
 
 son, 113 Mass. 348; Heckart v. Mc- Jackson v. Rowland, 6 Wend. (N. 
 
 Kee, 5 Watts (Pa.) 385. Y.) 666, 670; Nellis v. Lathrop, 22 
 
 ""Franklin v. Palmer, 50 111. 202, Wend."(N. Y.) 121; Despard v. Wal- 
 
 Board &c. v. Herrington, 50 111. 232; bridgfe, 15 N. Y. 374. 
 
 Corrigan v. Chicago, 144 111. 537, 33 "^ Carson v. Crigler, 9 111. App. 
 
 N. E. 746; Tilghman vl Little, 13 83; Hardin v. Forsythe, 99 111. 312. 
 
 111. 239; Wolf v. Johnson, 30 Miss. '=^ Pickett v. Ferguson, 45 Ark. 
 
 513; Jackson v. Rowland, 6 Wend. 177; Niles v. Ransford, 1 Mich. 338; 
 
 (N. Y.) 666, 670; Lancashire v. Ma- Pierce v. Brown, 24 Vt. 165. 
 son, 75 N. Car. 455.
 
 § 704] ESTOPPEL TO DENT LANDLORD'S TITLE. 834 
 
 lessor's title in bar; and in ejectment he may avail himself of the 
 expiration of the lessor's title under a general issue.^^^ 
 
 § 704. A tenant may purchase his landlord's title at an execution 
 sale and does not stand in such a fiduciary relation as to become in any 
 sense a trustee of such title for his landlord, it being open to him to 
 use the title thus acquired to defeat an action for rent or an eject- 
 ment suit. That the legal proceeding resulting in judgment and ex- 
 ecution against the landlord existed before the lease was granted does 
 not affect the lessee's rights.^^^ If there has been a sheriff's sale of 
 the whole reversion in demised premises and the tenant redeems or 
 purchases under the judgment, no action can be sustained against him 
 for rent, for a purchase or acquisition of title under a judgment 
 against the lessor is equivalent to his voluntary grant by deed. It is, 
 to be sure, acquiring title indirectly and by operation of law from the 
 lessor, but it comes through his act and consent or his neglect and 
 is therefore the same in legal effect as ,if he had granted or devised 
 the reversion. ^^'^ There is no doubt that a tenant may buy of .the 
 landlord at private sale. There is no consideration of law or public 
 policy to prevent his bidding when his landlord's title is exposed at 
 an involuntary sale. He owes no duty to his landlord inconsistent 
 with his right to purchase. The bidding is open to all the world, and 
 the injury is no greater than if any other person had bought.^^® 
 
 Not only has the tenant the full right to purchase his landlord's 
 title on an execution sale, but if such a purchase is made by the tenant, 
 the landlord has no more right to redeem in such a case than if the 
 purchase had been by a stranger.^^'' But it has been held that the 
 relation of trust and confidence established between a landlord and 
 tenant are such as to render it inequitable for the tenants to combine 
 for the purpose of obtaining the title of their landlord at judicial sale 
 or otherwise, without notice to him. This combination had no right 
 to proceed to sell the property, knowing it to be the property of the 
 
 *=" Orleans Co. &c. School v. 65 Am. Dec. 442; Camley v. Stan- 
 Parker, 25 Vt. 696. field, 10 Tex. 546; Elliott v. Smith, 
 
 ''«Nellis v. Lathrop, 22 Wend. (N. 23 Pa. St. 131; Pickett v. Ferguson, 
 
 Y.) 121, 34 Am. Dec. 285; Higgins 45 Ark. 177. 
 
 v. Turner, 61 Mo. 249; Smith v. ^" Nellis v. Lathrop, 22 "Wend. (N. 
 
 Scanlan, 106 Ky. 572, 51 S. W. 152; Y.) 121, 34 Am. Dec. 285. 
 
 Ryder v. Mansell, 66 Me. 167; "^ Pickett v. Ferguson, 45 Ark. 
 
 Pickett V. Ferguson, 86 Tenn. 642, 177. 
 
 8 S. W. 386, overruling dictum in '==> Casey v. Gregory, 13 B. Hon. 
 
 Scott V. Levy, 6 Lea (Tenn.) 662, (Ky.) 505; Pickett v. Ferguson, 45 
 
 667; Bettison v. Budd, 17 Ark. 546, Ark. 177.
 
 825 ESTOPPEL TO DENY LANDLORD'S TITLE. [§ 705 
 
 landlord, without notice to him. It would be a breach of faith to 
 allow the property to be sold by the sheriff to any one, without notify- 
 ing the landlord ; much more so for the tenants to procure a sale upon 
 their own judgment and execution.^®" 
 
 Furthermore, the time when the levy of execution takes place is 
 material, for if made before the term commenced it cannot be claimed 
 that the tenant is showing his landlord's title valid at the time of de- 
 mise has since expired and come to an end. Consequently, it has been 
 held that a lessee cannot set up the title of his landlord's execution 
 creditor if the execution was levied prior to the making of the lease.^*^^ 
 
 § 705. After a judgment of eviction has been obtained against a 
 tenant, he may proceed to buy in and set up the adverse title of a 
 stranger and it is not necessary that he be actually evicted to entitle 
 him to do this.^®^ But where it appears that successful resistance 
 might have been made to a recovery by the elder title, it is the duty 
 of the tenant to show that he in good faith made defense, or at least 
 that he notified his landlord, or those in reversion or remainder, of 
 the suit against him for possession.^*'^ Furthermore, a valid outstand- 
 ing title, alone, will not discharge the lessee from his estoppel to deny 
 title of landlord. He must be evicted or prevented from entering or 
 from enjoying the thing demised by virtue of such title.^''* Ac- 
 ceptance of a lease from another and acknowledgment of possession 
 under him will not discharge the estoppel against a lessee to- deny 
 his original landlord's title. He may be equally estopped as to both.^^^ 
 In general, unauthorized attornment to a third person does not af- 
 fect the landlord's rights or make the holding adverse, as such attorn- 
 ment is void, and the tenant still continues to be the tenant of the 
 original landlord, holding possession for him.^''^ Although the land- 
 
 1'" Matthews' Appeal, 104 Pa. St, Robertson, 27 Ark. 50. "A lessee 
 
 444. cannot deny his lessor's title until 
 
 ^•^Wood V. Turner, 8 Humph, discharged from the estoppel by 
 
 (Tenn.) 685; s. c. 7 Humph. 517. yielding up possession to the lessee; 
 
 "^ Gore V. Stevens, 1 Dana (Ky.) nor will the acceptance of a lease 
 
 201; Mills V. Peed, 14 B. Mon. (Ky.) from any other enable him to do 
 
 180. so unless when he has been evicted 
 
 ^^ Mills V. Peed, 14 B. Mon. (Ky.) and afterward let in possession by 
 
 180. a new and distinct title of a new 
 
 ^" McDowell V. Sutlive, 78 Ga. 142, landlord, and this bona fide-" Pate 
 
 2 S. E. 937; McKesson v. Jones, 66 v. Turner, 94 N. Car. 47. 
 
 N. Car. 258; Maverick v. Lewis, 3 "'^ Freeman v. Heath, 13 Ired. L. 
 
 McCord (S. Car.) 211; Hawes v. (N. Car.) 498. 
 
 Shaw, 100 Mass. 187; Simmons v. ^^Doe v. Reynolds, 27 Ala. 364;
 
 |§ 706, 707] ESTOPPEL TO DENT LANDLOKD's TITLE. 826 
 
 lord's title may be bad, his tenant cannot dispute it so long as the true 
 owner permits the tenant's occupation.^^^ And if a tenant has en- 
 joyed the land, he cannot repel the landlord's claim for rent by say- 
 ing he had nothing in the land or that the lease was void.^®^ 
 
 § 706. An evicted tenant may take a new lease from the party 
 evicting him, it being also held that if threatened with suit upon a 
 paramount title, the threat under such circumstances is equivalent to 
 eviction. He may thereupon submit in good faith, and attorn to a 
 party holding a valid title, to avoid litigation. In such case it is in- 
 cumbent on him and those who have profited by his admission to show 
 the existence and superiority of the title in question.^^^ For it is 
 always open to proof that there has been an eviction by title para- 
 mount since the making of a demise,^'^" and the doctrine of estoppel 
 between landlord and tenant does not bind the tenant after he has been 
 evicted and let into possession again by another landlord under a new 
 and distinct title.^^^ Where an ejectment suit has been brought 
 against the tenant in possession and successfully prosecuted, and the 
 tenant yields to the officer's authority and executes a new lease to the 
 plaintiff in the suit, this is not such a voluntary act as to make it a 
 wrong against the original landlord.^^^ 
 
 § 707. Although it is well established that a tenant cannot volun- 
 tarily attorn to an adverse claimant,^^^ "it is equally well settled," 
 
 Milsap V. Stone, 2 Colo. 137; Mc- ^•'^ Cook v. Cook, 28 Ala. 660; Love 
 
 Namee v. Relf, 52 Miss. 426; Ruth- v. Law, 57 Miss. 596; Allen v. Hall, 
 
 erford v. Ullman, 42 Mo. 216; Mc- 64 Neb. 256, 89 N. W. 803; Watson 
 
 Cartney v. Auer, 50 Mo. 395; Kepley v. Alexander, 1 Wash. (Va.) 340. 
 
 V. Scully, 185 111. 52, 57 N. E. 187; ^^^Merryman v. Bourne, 9 Wall. 
 
 Perkins v. Potts, 52 Neb. 110, 71 (U. S.) 592, 600; Lunsford v. 
 
 N. W. 1017. Turner, 5 J. J. Marsh (Ky.) 104; 
 
 iCT Providence Co. Sav. Bank v. Mayor &c. v. Whitt, 15 M. & W. 571, 
 
 Phalen, 12 R. I. 495. In an action 577; Emery and Barnett, In re, 4 
 
 for rent under a lease which had C. B. (N. S.) 423, 93 E. C. L. 423. 
 
 been accepted from the plaintiff "'Cook v. Basom, 164 Mo.' 594, 65 
 
 alone, defendant set up then that S. W. 227; Corrigan v. Chicago, 144 
 
 plaintiff did not have title to the 111. 537, 33 N. E. 746; Wheelock v. 
 
 entire premises, and rent had been Warschauer, 21 Cal. 309. 
 
 recovered by his co-owner. Held, "^Gilliam v. Moote, Busb. L. (N. 
 
 this defense could not be set up be- Car.) 95. 
 
 cause lessee was estopped to deny "-Foss v. Van Driele, 47 Mich, 
 
 his lessor's title. The proper way 201, 10 N. W. 199. 
 
 to prevent double recovery would '" Nissen v. Turner, 50 Neb. 272, 
 
 have been to have filed a bill of in- 69 N. W. 778; Mosher v. Cole, 50 
 
 terpleader. McCoy v. Bateman, 8 Neb. 636, 70 N. W. 275; § 476. 
 Nev. 126. 
 
 II
 
 827 ESTOPPEL TO DENY LANDLORD'S TITLE. [§ 708 
 
 declares Justice Wilde, of Massachusetts, "that if the lessee is dis- 
 turbed in his occupation by a party having a title paramount to that 
 of his lessor, so that he cannot legally continue his occupation under 
 the lessor without rendering himself liable as a trespasser to the 
 other party, he may yield the possession and take a new lease under 
 him, or he may abandon the possession; and in either case he will 
 thereafter not be liable to pay rent to the original lessor." The reason 
 for this is that such an entry and disturbance are equivalent to an 
 ouster, as where execution creditors of the landlord entered claiming 
 title, and threatening to put the lessee out unless he would yield pos- 
 session and attorn to them.^^* But while a tenant may attorn to one 
 who has recovered against his lessor in ejectment, if the writ and re- 
 turn be set aside, his relation to his former landlord is reestablished.^'^^ 
 And it has been held that notice to the landlord of the pendency of 
 the ejectment suit is necessary, mere proof of the judgment of eject- 
 ment against the tenant not being enough. The landlord is entitled 
 to an opportunity to defend the ejectment suit, before his tenant can 
 justify an attornment to a third party.^'^ 
 
 A few statutes are to be found defining the right of tenants to at- 
 torn to adverse claimants. Thus, under the California statute an 
 attornment to a stranger is void unless made with the consent of the 
 landlord or in pursuance of a judgment at law or decree in equity."^ 
 A statute of similar import is to be found in Mississippi,^" and in 
 Kentucky there is an enabling act authorizing an attornment in con- 
 sequence of a judgment, order, or decree of court."^ 
 
 § 708. Estoppel does not bar a lessee from exercising a power of 
 eminent domain. All the property in the country is held subject to 
 the power of eminent domain, the exercise of which is subject only to 
 the limitation that just compensation must be made in all cases for 
 the property taken. There is no distinction in principle in a case 
 where the state is already in possession of the property, as lessee under 
 a contract with the lessor to deliver possession at a certain time, and 
 an ordinary case of condemnation, where no such relations growing 
 
 "* George v. Putney, 4 Gush. ""Douglas v. Fulda, 45 Gal. 592; 
 
 (Mass.) 351, 354; Palmtag v. Dout- Calderwood v. Pyser, 31 Gal. 333. 
 rick, 59 Gal. 154; Carpenter v. "^Thompson v. Pioche, 44 Gal. 
 
 Parker, 3 G. B. (N. S.) 206, 235, 91 508. 
 E. C. L. 206. "« Tucker v. Whitehead, 58 Miss, 
 
 ™Goughanour v. Bloodgood, 27 762. 
 Pa. St. 285. "'McMurtry v. Adams, 3 Bush 
 
 (Ky.) 70.
 
 § 709] ESTOPPEL TO DEXY LAXDLOKD's TITLE. 828 
 
 out of contract exist. The state in entering into the contract, acts 
 merely as an individual may do, whereas in condemning the property, 
 it acts in its sovereign capacity. In other words, a right founded 
 upon a contract with the state is not more sacred than any other 
 property.^^** Every contract is made in subordination to certain con- 
 ditions, of which the right of eminent domain is one.^®^ 
 
 § 709. The attornment of a tenant to a third person does not have 
 the effect of making the possession of the tenant the constructive pos- 
 session of the stranger to whom he attorns but the rightful owner is 
 still in constructive possession through his tenant.^®- For a tenant 
 in possession to accept a lease from a stranger does not make his 
 holding adverse to the original lessor.^^^ 
 
 While the attornment of a tenant to a stranger does not alone 
 operate as a disseisin of a landlord, yet if possession be assumed by 
 other acts besides the attornment, and the landlord has full knowl- 
 edge of such change, the holding may become adverse to him.^^'* More- 
 over, attornment to a stranger is not wrongful as between the tenant 
 and the stranger, particularly if the latter has a right to evict the 
 landlord, and this justifies the stranger in bringing distress for rent,^^^ 
 
 In Kansas it has been held that a tenant, when confronted with a 
 tax title, is justified in recognizing the grantee in such deed as the 
 owner of the property; and this decision is based on the ground that 
 it is competent to show that the landlord's title has terminated.^^^ 
 In New York the right to attorn to the holder of a tax title was 
 'denied the tenant, the case going on a New York statute which only 
 allowed attornment to privies, and a majority of the court being of 
 opinion that the holder of the tax title was not in privity with the 
 landlord. The court argue that if the tax is not paid, then the state, 
 by virtue of its taxing power, and through the medium provided by 
 statute, either acquires the land or grants it to a citizen. The pur- 
 
 ""Tait V. Central &c. Asylum, 84 835, 12 S. E. 569; Bryan v. Win- 
 
 Va. 271, 4 S. E. 697. burn, 43 Ark. 28. 
 
 ^"'West River Bridge Co. v. Dix, '«^ Farrar v, Heinrich, 86 Mo. 521; 
 
 6 How. (U. S.) 507; Boom Co. v. Dausch v. Crane, 109 Mo. 323, 19 S. 
 
 Patterson, 98 U. S. 403. W. 61. 
 
 ^'- Campbell v. Davis, 85 Ala. 56, "* Winn v. Strickland, 34 Fla. 610, 
 
 4 So. 140; Collier v. Carlisle, 133 16 So. 606. 
 
 Ala. 478, 31 So. 970; Pence v. Wil- "'Smith v. Coker, 110 Ga. 650, 36 
 
 liams, 14 Ind. App. 86, 42 N. E. 494; S. E. 105. 
 
 Ratcliff v. Bellfonte Iron Works Co., "' Sheaff v. Husted, 60 Kan. 770, 
 
 87 Ky. 559, 10 S. W. 365, 10 Ky. L. 57 Pac. 976, reversing 8 Kan. App. 
 
 R. 643; State v. Howell, 107 N. Car. 271, 55 Pac. 507.
 
 829 ESTOPPEL TO DENY LANDLORD'S TITLE. [§ 709 
 
 chaser is not subjected to any of the inconveniences of the old title, 
 nor can he take advantage of it.^^'^ 
 
 Under the Missouri statute a tenant is authorized to attorn to a 
 purchaser under the foreclosure of the landlord's deed of trust of 
 older date than the lease, and, on proper exhibition of purchaser's 
 deed, he must so attorn,^^^ 
 
 The meaning of the Iowa provision in regard to attornment has 
 been declared to be that a tenant of a mortgagor may attorn to the 
 mortgagee, after the right of possession of the mortgagor is cut off 
 under the statute — ^that is, after time for redemption from the sale 
 under the mortgage has expired.^^^ 
 
 As has already appeared, a lessee may yield to the title of a levying 
 creditor of a lessor, and will not thereafter be liable to pay rent to the 
 original lessor.^®** But in an action by the execution creditor, for use 
 and occupation, against a tenant in possession under the execution 
 debtor, the tenant might take advantage of a defect in the levy. The 
 tenant has a right to protect himself against a double payment, by 
 objecting to the creditor's title; so that whether the levy be void, or 
 merely voidable, is not material.^®^ 
 
 "^O'Donnell v. Mclntyre, 118 N. Mills v. Heaton, 52 Iowa 215, 2 N. 
 Y. 156, 23 N. B. 455. W. 1112. 
 
 ^^^Holden &c. Asso. v. Wann, 43 ""George v. Putney, 4 Cush. 
 Mo. App. 640. (Mass.) 351. 
 
 "^ Mills v. Hamilton, 49 Iowa 105; "^ Pickett v. Breckenridge, 22 
 
 Pick. (Mass.) 297.
 
 CHAPTER XL 
 
 FIXTURES. 
 
 § 710. The general rule of law is that whatever is fixed to the soil 
 becomes a part of the realty, and every case in which there exists the 
 right of severing and removing a thing which has been affixed to the 
 soil of another is considered as an exception to the general rule above 
 stated. This right of removal is a special privilege conferred by the 
 law in certain cases from reasons of public policy upon certain classes 
 of persons, in derogation of what would otherwise be the rights of the 
 owner of the soil. In an early case it was laid down as a general 
 rule "that where the instrument or utensil is an accessory to anything 
 of a personal nature, as to the carrying on of a trade, it is considered 
 a chattel ; but where it is a necessary accessory to the enjoyment of the 
 inheritance, it is to be considered as a part of the inheritance."^ In 
 accordance with this principle, salt pans, which were very slightly 
 fixed with mortar to the floor and might be removed without injuring 
 the building, were held to be fixtures. "The present case," said Lord 
 Mansfield, "is very strong. The salt spring is a valuable inheritance ; 
 but no profit arises from it unless there is a salt work, which consists 
 of a building for the purpose of containing the pans which are fixed 
 to the ground. The inheritance cannot be enjoyed without them. 
 They are accessories necessary to the use and enjoyment of the prin- 
 cipal. The owner erected them for the benefit of the inheritance."^ 
 So a steelyard hung in a machine-house was a fixture because the 
 principal purpose of the house was for weighing.^ The mere fixing 
 and fastening is not alone to be considered, but the use and nature of 
 the article and the intention of the parties. So, if furnishings are in 
 their nature articles of furniture, the fact that they were fastened to 
 the walls, for safety or convenience, does not deprive them of their 
 character as personal chattels and make them a part of the realty.* 
 
 * Olympic Theatre, 2 Browne =Rex v. Inhabitants of St. Nicho- 
 (Pa.) 275, 285. las, Cald. 262. 
 
 "Lawton v. Salmon, 1 H. Bl. ^Winslow v. Merchants' Ins. Co., 
 259, n. 4 Mete. (Mass.) 306. 
 
 830 
 
 I
 
 831 FIXTURES. [§ 711 
 
 Thus, a glass case, a case of drawers, a mirror and gas fixtures, though, 
 fastened to the walls, were not annexed to the realty so as to become 
 part of it. The nature of the articles, the circumstances under which 
 they were placed in the building, the mode of their connection, and 
 the relation which they bear to the use of the freehold, are not such as 
 to give them the character of fixtures or additions to the real estate.^ 
 It is impossible to regard personal property capable of removal from 
 the land, which does not belong to the land-owner, as part of the 
 realty. So it was held that machines fastened in a building by bolts 
 and screws, and removable without injury to the building, did not 
 become a part of the realty.*' 
 
 However, the principle of law is that whatever is planted in the 
 soil belongs to the soil — quic quid piantatur solo, solo cedit; while the 
 tenant may have the right to remove fixtures of a certain nature, they 
 are not goods and chattels at all, but parcel of the freehold, and as 
 such not recoverable in trover.''' Therefore, it has been held that an 
 action of trover will not lie against a landlord for the conversion of 
 fixtures, during the term of the lease, while they remain unsevered 
 from the realty.^ And the price of the fixtures of a house cannot be 
 recovered by the tenant under a declaration for goods sold and de- 
 livered.^ The doctrine of the law of landlord and tenant is not that 
 the articles attached to the freehold remain chattels for the purposes 
 of removal, but that, under certain circumstances, parts of the free- 
 hold may be removed by the tenant. 
 
 § 711. The original doctrine was that fixtures were generally re- 
 garded as immovable, and therefore, as belonging to the landlord, 
 though erected by the tenant and at his own expense ; but this doctrine 
 has been modified, in modern times, to meet the wants and necessities 
 of trade and commerce, and the arts and sciences, until now, perhaps, 
 a majority of fixtures erected by tenants may be removed, if done 
 whilst the tenant's dominion over the leased premises still exists.^" 
 
 In regard to the additions which do become fixtures in that they are 
 temporarily attached to the freehold, the exception in favor of a tenant 
 allows him to remove trade, domestic and ornamental fixtures, but not 
 
 "Guthrie v. Jones, 108 Mass. 191. * Guthrie v. Jones, 108 Mass. 191. 
 
 ^Bartlett v. Haviland, 92 Mich. ^ Lee v. Risdon, 7 Taunt. 188. 
 
 552, 52 N. W. 1008; Scudder v. An- i" Thomas v. Cront, 5 Bush (Ky.) 
 
 derson, 54 Mich. 126, 19 N. W. 775. 37; Coombs v. Jordan, 3 Bland 
 
 ^ Mackintosh v. Trotter, 3 M. & W. (Md.) 284, 22 Am. Dec. 236; Tate 
 
 184; Minshall v. Lloyd, 2 M. & W. v. Blackburne, 48 Miss. 1; Jones on 
 
 450. Mort., § 441.
 
 § 712] FIXTURES. 833 
 
 other fixtures.^^ A tenant who has put trade fixtures into a building 
 has a right to remove them if it can be done without permanent injury 
 to the freehold, provided the right is exercised within proper time. 
 The right must be exercised during the term of the lease.^^ Neverthe- 
 less, trade fixtures become part of the realty, whatever intention to the 
 contrary on the part of the tenant erecting them may be inferred 
 from his limited interest in the land. The indulgence shown by the 
 law to the tenant in allowing him to remove them during his term 
 arises, not from any regard to his intention, but by way of exception 
 to a rule which would otherwise work hardship or retard improve- 
 ment.^^ 
 
 § 712. Fixtures which would be destroyed in removal. — In de- 
 termining whether an addition by the tenant to a leased building is 
 removable or not by him during the term, the mode of its annexation 
 is to be considered, and whether it can be removed without substantial 
 injury to the building or to itself. It has been held that the right of 
 removal should not be extended so far as to include a thing which 
 cannot be severed from the realty without being destroyed or reduced 
 to a mere mass of crude materials. A baker's oven so united with the 
 building that the two were inseparable without the destruction of the 
 oven and a substantial injury to the building, is not a removable trade 
 fixture.^'* On the other hand, the Illinois Supreme Court held that 
 removable trade fixtures might include boilers, ovens, and other trade 
 appliances if they may be removed without injury to the freehold. 
 The fact that the masonry of the ovens and boilers must be taken 
 down, brick by brick, and that the iron work must be taken apart, 
 does not destroy the tenant's right to remove them,^^ the general rule 
 in Illinois being exceptionally liberal in favor of the tenant. As be- 
 tween him and the landlord, removable trade fixtures may include 
 all erections made for the purpose of trade, such as soap-vats, engines, 
 a working colliery, pans used in manufacturing salt, brewhouses, 
 furnaces, greenhouses and hothouses erected by nurserymen and 
 gardeners.^^ Ordinarily such things cannot be removed without in- 
 jury to the material composing them, and there is no reason why an 
 
 " Wright v. Du Bignon, 114 Ga. " Treadway v. Sharon, 7 Nev. 37. 
 
 765, 40 S. E. 747; Charleston &c. R. " Collamore v. Gillis, 149 Mass. 
 
 Co. V. Hughes, 105 Ga. 1, 23, 30 S. 578, 29 N. E. 46. 
 
 E. 972; McCracken v. Hall, 7 Ind. « Baker v. McClurg, 198 111. 28, 64 
 
 30. N. E. 701, affirming 96 111. App. 165. 
 
 "Allen V. Kennedy, 40 Ind. 142; "Moore v. Smith, 24 111. 513. 
 Poole's Case, 1 Salk. 368.
 
 833 FIXTURES. [§ 713 
 
 exception should be made in the case of ovens, an engine, and a boiler. 
 It has even been held that a two-story house with brick chimney and 
 foundations was so removable. ^^ "Indeed, it is difficult to conceive," 
 said the Supreme Court of the United States, "that any fixture how- 
 ever solid, permanent, and closely attached to the realty, placed there 
 for the mere purposes of trade, may not be removed at the end of the 
 term."^^ 
 
 On the other hand the New. Jersey court held the fact that the ar- 
 ticles in dispute might be removed and used elsewhere is not decisive 
 of their character. ^^ Trade fixtures to be capable of removal by a 
 tenant must be additions made by the tenant to the property of the 
 landlord and not substitutions for essential parts of it which the ten- 
 ant has irrecoverably removed. When a tenant accepts a lease of a 
 mill and covenants to keep it in repair and during the term takes the 
 greater part of the equipment out of the mill and puts new machinery 
 in its place, he will be restrained from removing such new machinery 
 and thus dismantling the mill.^'' 
 
 § 713. Agreements as to removal. — The rules of common law, re- 
 lating to the rights of lessor and lessee, in buildings and other struc- 
 tures erected by the lessee upon the property leased, and in such things 
 as are annexed to any buildings or structures thereon, are liable to be 
 changed and modified in any way by agreements between the parties 
 on the subject. So far as such agreements extend, the question is no 
 longer what is the common law, but what have the parties agreed. ^^ 
 In accordance with this principle it has been settled by many decisions 
 that where a building is erected by one man upon the land of another, 
 by his permission, upon an agreement or understanding that it may be 
 removed at the pleasure of the builder, it does not become a part of the 
 real estate, but continues to be a personal chattel and the property of 
 the person who erected it. In such case it is immaterial what is the 
 purpose, size, material, or mode of construction of such building.^- 
 
 "Van Ness v. Pacard, 2 Pet. (U. bois.v. Kelley, 10 Barb. (N. Y.) 496; 
 
 S.) 137; Moore v. Wood, 12 Abb. Wall v. Hinds, 4 Gray (Mass.) 256, 
 
 Pr. (N. Y.) 393. 273; Dame v. Dame, 38 N. H. 429; 
 
 "Wiggins Ferry Co. v. Ohio &c. Foley v. Addenbrooke, 13 M. & W. 
 
 R. Co., 142 U. S. 396, 12 S. Ct. 188. 174; Naylor v. Collinge, 1 Taunt. 
 
 "Feder v. Van Winkle, 53 N. J. 19; Thresher v. East London &c. 
 
 Eq. 370, 33 Atl. 399. Co., 2 B. & C. 608. 
 
 ^'Ashby V. Ashby, 59 N. J. Eq. 536, " Vanness v. Pacard, 2 Pet. (U. 
 
 46 Atl. 528. S.) 137; Keefe v. Furlong, 96 Wis. 
 
 ^Merritt v. Judd, 14 Cal. 59; Du- 219, 70 N. W. 1110. 
 Jones L. & T.— 53
 
 § 714] FIXTURES. 834 
 
 It is merely personal, and is governed by the same rules as any other 
 article of personal property; as for instance, a pile of lumber, left by 
 consent of the owner of the land upon his premises." 
 
 Specific provisions in a lease as to the removal of structures to be 
 erected by the tenant are controlling and in respect to such removal 
 the question of the tenant's rights at common law does not arise.^* 
 The principle is well settled that parties may treat as personal prop- 
 erty machinery which would otherwise be part of the realty and thus 
 convert it into personal property as between themselves. ^^ Under a 
 contract between landlord and tenant for the tenant to erect buildings 
 at his own expense with the privilege of removing them at any time 
 during the lease, they do not become a part of the land and may 
 be moved off the leased premises, as they continue to be personal chat- 
 tels and the property of the person who builds them.2« ^ purchaser 
 of the reversion, though without notice of such an agreement, acquires 
 no title or interest in the buildings covered by it. They continue to 
 be personal property and do not pass by a conveyance of the land." 
 
 Where a mere tenant at will is entitled by agreement to remove fix- 
 tures, a conveyance of the estate would of course terminate the will 
 and revoke the license to allow the building to remain upon the prem- 
 ises, but the lessee at will must receive actual or constructive notice 
 of the conveyance before he forfeits his right of removal.^® 
 
 § 714. If a grantee of the reversion is injured by an agreement 
 which entitles the tenant to remove buildings or fixtures, from the 
 granted premises, his remedy is upon the covenants in the deed. A 
 grantor who executes a conveyance of land undertakes to convey every- 
 thing described in his deed ; and by a covenant of seisin he assumes to 
 be the owner of all he undertakes to convey. Trees, buildings, fix- 
 tures and fences on a farm, are corporeal in their nature and the sub- 
 
 =» Smith v. Benson, 1 Hill (N. Y.) 47 Mo. 297; Priestley v. Johnson, 67 
 
 17g^ Mo. 632; Union &c. Ins. Co. v. Til- 
 
 =**Linahan v. Barr, 41 Conn. 471; lery, 152 Mo. 421, 54 S. W. 220; In- 
 
 Allen V. Gates, 73 Vt. 222, 50 Atl. habitants &c. v. Jones, 8 Cush. 
 
 1092; Town of Lemington v. Ste- (Mass.) 184; Howard v. Fessenden, 
 
 vens, 48 Vt. 38. 14 Allen (Mass.) 124. 
 
 ^=Keefe v. Furlong, 96 Wis. 219, "Russell v. Richards, 10 Me. 429; 
 
 70 N. W. 1110; Smith v. Waggoner, Dubois v. Kelley, 10 Barb. (N. Y.) 
 
 50 Wis. 155, 6 N. W. 568; Fitzgerald 496; Smith v. Benson, 1 Hill (N. 
 
 v. Anderson. 81 Wis. 341, 51 N. W. Y.) 176. 
 
 554. =« Dubois v. Kelley, 10 Barb. (N. 
 
 ==« Goodman V. Hannibal &c. R. Co., Y.) 496; Rising v. Stannard, iTj 
 
 45 Mo. 33; Lowenberg v. Bernd, Mass. 282, 286.
 
 835 FIXTURES. [§ 715 
 
 jects of seisin, like the land itself of which they are regarded in the 
 law as a part. Fences are not only indispensable to the enjoyment of 
 real estate, but they are in their nature real estate, to the same extent 
 that houses and other structures on the land are so. A rail applied 
 to its appropriate use in building a fence or a house becomes real es- 
 tate and is governed by the law regulating land. So a fence being 
 within the description of a deed of land is part of that which the deedj 
 purports to convey and of which the grantor covenants that he is the 
 owner.^^ 
 
 § 715. The agreement allowing removal must be made before the 
 building is erected, for it has also been decided that if a building has 
 once been annexed to the realty, any subsequent contract of the owner 
 or any acts of his, such as giving a chattel mortgage, without a sever- 
 ance, will not, as against a purchaser of the land, disconnect it from 
 the realty and give it the character of personal property. The ad- 
 mitted intention of the parties, to change this to personal property, 
 was one which the law could not carry into effect. So, where the owner 
 of the land agreed, after the house was commenced and before it was 
 completed, that the builder should hold it as personal property, the 
 agreement was inoperative, and the house became annexed to the 
 realty, as to a subsequent grantee of the land.^° 
 
 After the execution of a mortgage deed of trust on land, the mort- 
 gagor would have no right to enter into an agreement that buildings 
 erected by a tenant should remain personal property and thereby 
 bind a purchaser at a sale under the mortgage; the rule being that 
 if a mortgagor erects improvements or attaches fixtures to the mort- 
 gaged premises, they become the property of the mortgagee for the 
 payment of his debt.^^ The fixtures attached at the time of sale un- 
 
 '° Mott V. Palmer, 1 N. Y. 564. In come the owner of that which was 
 
 Mitchell V. McNeal, 4 Colo. App. 36, the property of the tenant because 
 
 34 Pac. 840, the proposition decided of a subsequent transfer." 
 Is that covenants in a valid parol Under the Georgia code fences 
 
 lease run with the land. One of the permanently affixed to land consti- 
 
 arguments of the court is that "If, tutes a part of the realty. Ga. Civ. 
 
 by the terms of the agreement be- Code, § 2219; Bagley v. Columbus 
 
 tween the lessor and the lessee, the &c. R. Co., 98 Ga. 626, 25 S. E. 638. 
 lessee should erect a structure on ^"Richardson v. Copeland, 6 Gray 
 
 the property which by their con- (Mass.) 536; Gibbs v. Estey, 15 
 
 tract was to remain a chattel with Gray (Mass.) 587; Madigan v. Mc- 
 
 the right of removal, it would hard- Carthy, 108 Mass. 376. 
 ly be seriously argued that the =» Curry v. Schmidt, 54 Mo. 515, 
 
 grantor could escape the force of 517; Butler v. Page, 7 Mete. (Mass.) 
 
 the agreement, or the grantee be- 40; Jones on Mort., § 428.
 
 § 716] FIXTURES. 836 
 
 der a deed of trust pass by the sale.^^ If a purchaser at such sale has 
 no notice of the contract for removal at the time he acquires title to 
 the land upon which the buildings stand, the tenant occupies no more 
 advantageous position toward such purchaser with respect to the build- 
 ings than the landlord mortgagor does. As the latter cannot remove 
 the buildings without the permission of the purchaser, it follows logic- 
 ally that the tenant cannot do so.^^ 
 
 An agreement by which a tenant releases his right to remove trade 
 fixtures is equally binding on one claiming through him. Thus, 
 where a lease stipulated that the lessee should not remove improve- 
 ments, his attaching creditor could acquire no rights in such improve- 
 ments as against the lessor, although without such stipulation in the 
 lease, they would have been removable by the lessee as trade fixtures 
 and the attaching creditor had no notice of the agreement.^"* The 
 general rule sustained by modern authority is that an attaching 
 creditor can acquire no greater right to improvements or fixtures 
 placed upon the leasehold by the tenant than the tenant himself had.^^ 
 
 § 716. In the absence of a special agreement a tenant under a 
 lease for a specific term must ordinarily remove his fixtures during the 
 term, or at farthest during the time he remains in possession of the 
 leased premises under a right to still consider himself a tenant.^" 
 Furthermore where the term is surrendered, or is put an end to by 
 the lessor under a forfeiture clause, the right of the tenant to remove 
 his fixtures is gone as effectually as if the term had expired by lapse 
 of time.^^ This right of the tenant, whereby he may sever fixtures 
 from the freehold and restore them to their former condition as chat- 
 tels, is referred to in the books as a "privilege.^' The limitation upon 
 
 ^^^ Sands v. Pfeiffer, 10 Cal. 258; Atl. 370, 16 Atl. 301; Griffin v. Rans- 
 
 Cohen v. Kyler, 27 Mo. 122. dell, 71 Ind. 440; Dingley v. Buf- 
 
 =^ Union &c. Ins. Co. v. Tillery, fum, 57 Me. 381; Torrey v. Burnett, 
 
 152 Mo. 421, 54 S. W. 220. 38 N. J. L. 457; Youngblood v. Eu- 
 
 '* Little Valeria &c. Co. v. Lam- bank, 68 Ga. 630; Haflick v. Stober, 
 
 bert, 15 Colo. App. 445, 62 Pac. 966. 11 Ohio St. 482; Burk v. Hollis. 98 
 
 ^Waples on Attachment & Gar- Mass. 55; Leader v. Homewood, 5 
 
 nishment, § 258; Manwaring v. Jen- C. B. (N, S.) 546, 94 E. C. L. 546. 
 ison, 61 Mich. 117, 139, 27 N. W. '' Morey v. Hoyt, 62 Conn. 542, 26 
 
 899; Morey v. Hoyt, 62 Conn. 542, Atl. 127; Davis v. Moss, 38 Pa. St. 
 
 547, 26 Atl. 127; Friedlander v. Ry- 346; Whipley v. Dewey, 8 Cal. 36; 
 
 der, 30 Neb. 783, 47 N. W. 83; Rex Kutter v. Smith, 2 Wall. (U. S.) 
 
 v. Topping, McCl. & Y. 544. 491; Friedlander v. Ryder, 30 Neb. 
 
 '•Morey v. Hoyt, 62 Conn. 542, 26 783, 47 N. W. 83; Pugh v. Arton, L. 
 
 Atl. 127; Loughran v. Ross, 45 N. Y. R. 8 Eq. 626; Weeton v. Woodstock, 
 
 792; Carlin v. Ritter, 68 Md. 478, 13 7 M. & W. 14.
 
 S37 FIXTURES. [§ 716 
 
 its exercise, viz., that he must do so while in possession as tenant is 
 obvious. If he does not exercise the privilege during that period, or 
 indeed, if he acts inconsistent with a claim to the fixtures as distinct 
 to the land, he is regarded as having waived his right, and the fixtures 
 in such case, being a part of the freehold, belong to the landlord.^* 
 This general rule has been laid down in many cases, that things which 
 a lessee has annexed to the freehold, if movable at all, must be re- 
 moved before the expiration of the tenancy.^** If a tenant does not 
 remove his fixtures during the term or at its expiration, he will be 
 presumed to have abandoned them. But this presumption may be re- 
 butted by proof of a parol agreement between the parties.*** Some 
 sort of agreement is necessary, however, to entitle a tenant to remove 
 fixtures after the end of the term.*^ 
 
 A mere permission to leave fixtures behind does not amount to a 
 license to reenter and remove them after a surrender of possession, 
 there being no express recognition of a right of property in the tenant 
 after surrender. Where the question and answer upon which the al- 
 leged agreement is founded are both ambiguous, and the conversation 
 will bear the construction. of being founded on the convenience of the 
 tenants to leave the fixtures behind to save the trouble and expense of 
 removing them, it would be dangerous to imply a right to enter upon 
 realty and sever things attached to it, upon such vague and ambiguous 
 language.*^ 
 
 As it is not known when the rights of tenants at will or for an un- 
 certain period will terminate, they will have a reasonable time after 
 such termination in which to remove fixtures.*^ After the tenant's 
 rights have been terminated and they have been urged to remove a 
 
 '* Bauernschmidt &c. Co. v. Mc- 394; Colegrave v. Dias Santos, 2 B. 
 
 Colgan, 89 Md. 135, 42 Atl. 907; & C. 76; Josslyn v. McCabe, 46 Wis. 
 
 Northern &c. R. Co. v. Canton Co., 591, 1 N. W. 174; Childs v. Hurd, 
 
 30 Md. 347, 355; Van Ness v. Pacard, 32 W. Va. 66, 9 S. E. 362. 
 
 2 Pet. (U. S.) 137, 143. ^"McCracken v. Hall, 7 Ind. 30. 
 
 ^"Merritt v. Judd, 14 Cal. 59; Dos- « McCracken v. Hall, 7 Ind. 30; 
 
 tal v. McCaddon, 35 Iowa 318; Free Cromie v. Hoover, 40 Ind. 49. 
 
 V. Stuart, 39 Neb. 220, 57 N. W. 991; ^= Josslyn v. McCabe, 46 Wis. 591, 
 
 Friedlander v. Ryder, 30 Neb. 783, 1 N. W. 174. In Fitzgerald v. An- 
 
 787, 47 N. W. 83; White v. Arndt, 1 derson, 81 Wis. 341, 51 N. W. 554, 
 
 Whart. (Pa.) 91; Sweet v. Myers, 3 an alleged agreement regarding re- 
 
 S. D. 324, 53 N. W. 187; Ombony v. moval was not established. 
 
 Jones, 19 N. Y. 234, 238; Poole's "Howard v. Fessenden, 14 Allen 
 
 Case, 1 Salk. 368; Quincy, Ex parte, (Mass.) 124; Burk v. Hollis, 98 
 
 1 Atk. 477; Lee v. Risdon, 7 Taunt. Mass. 55; Talbot v. Whipple, 14 Al- 
 
 188; Lyde v. Russell, 1 B. & Ad. len (Mass.) 177.
 
 §§ 717, 718] FIXTURES. 838 
 
 building, with ample allowance of time to do so, the landlord would 
 not be a trespasser in entering upon the land and taking possession 
 of the building. He was not obliged to remove it for them, or to per- 
 mit an indefinite occupancy of the land.** 
 
 A forfeiture for non-payment of rent not being a voluntary termi- 
 nation of the lease, the rule that a tenant must remove trade fixtures 
 during the term does not apply, but in such ease the tenant has a rea- 
 sonable time after the termination of the tenancy for the exercise of 
 his right, and his right to remove his fixtures is not lost by a for- 
 feiture of the lease.*^ 
 
 § 717. Where a right of removal conferred by agreement is con- 
 ditioned on the performance of all the undertakings in the lease, 
 
 actual performance of such undertakings forms a condition precedent 
 to the removal of improvements and an offer to perform is not suffi- 
 cient.*® 
 
 A lessee leaving during the term and paying rent as long as he 
 occupied, does not become entitled to remove improvements under a 
 clause allowing removal provided the rents- were paid which may be 
 due upon the expiration of the lease.*^ Payment of rent as a con- 
 dition precedent to the removal of a building from leased premises 
 would bind a purchaser from the lessee,*® 
 
 Buildings may be sold and transferred as personalty if, by the con- 
 dition of" the lease, they may be removed by the lessee at the expiration 
 of the term. It is immaterial that the right of removal is conditioned 
 upon the final fulfillment of the stipulations in the lease, as such a 
 condition may attach against the buildings while in the hands of the 
 transferee.*** 
 
 § 718. Effect of renewal on right to remove fixtures. — According 
 to the weight of authority, a new contract between the landlord and 
 tenant which neither merely renews or extends the former lease, but 
 creates a new term without reserving any right to the fixtures an- 
 nexed, forfeits the tenant's privilege of removal.'" The right to re- 
 
 " Sullivan v. Carberry, 67 Me. 531. « Dryden v. Kellogg, 2 Mo. App. 
 
 *=Updegraff v. Lesem, 15 Colo. 87. 
 
 App. 297, 62 Pac. 342. "^"Carlin v. Ritter, 68 Md. 478, 13 
 
 « Clemens v. Murphy, 40 Mo. 121. Atl. 370; Hedderick v. Smith, 103 
 
 *^Mathinet v. Giddings, 10 Ohio Ind. 203, 2 N. E. 315; Sanitary Dist. 
 
 364. v. Cook, 169 111. 184, 48 N. E. 461; 
 
 ** Forbes v. Williams, 1 Jones L. Bauernschmidt &c. Co. v. McColgan, 
 
 (N. Car.) 393. 89 Md. 135, 42 Atl. 907; Talbot v.
 
 839 
 
 FIXTURES. [§• 718 
 
 move fixtures is not lost to the tenant so long as his possession as ten- 
 ant continues, but this qualification does not include and save the 
 right of a tenant continuing in possession under a new lease. The 
 tenant is in under a new tenancy, and not under the old; and the 
 rights which existed under the former tenancy and which were not 
 claimed or exercised are abandoned as effectually as if the tenant had 
 actually removed from the premises and after an interval of time had 
 taken another lease and returned to the premises.^^ The reason of the 
 rule has been stated as follows: "It results from the terms of the 
 lease that whatever constituted a part of the freehold at the time the 
 lease was accepted must be surrendered at its termination, and the 
 lessee will not be permitted to say that part of the premises leased 
 was in fact a trade fixture erected by him under a previous lease, and 
 that he has the right, against the face of his contract, to sever and re- 
 move it. To permit the tenant to do this would, in effect, be to per- 
 mit him to deny the title of his landlord to part of the demised prem- 
 ises ; and if he may deny his title to a part, why not to the whole P"^^ 
 If it is the intention of the parties in this or any similar case that 
 the right to remove fixtures should continue, nothing is easier than 
 to insert in the lease a clause to that effect; and it seems reasonable 
 to infer from the absence of such a clause that it is their intention 
 that this right should no longer continue.^ ^ This rule, however, does 
 not apply when the tenant merely holds over without a new demise 
 under permission from the landlord, or in such a way as to raise an 
 implication of an extension of the original lease.^* 
 
 In Colorado the first tenancy has been regarded as continuous when 
 
 Cruger, 151 N. Y. 117, 45 N. E. 364; ^^ Loughran v. Ross, 45 N. Y. 792. 
 
 Watriss v. First Nat. Bank, 124 ''^ Hedderich v. Smith, 103 Ind. 
 
 Mass. 571, 26 Am. R. 694; Cook v. 203, 2 N. E. 315, 53 Am. R. 509, per 
 
 Sanitary Dist. &c., 67 111. App. 286; Spencer v. Commercial Co., 30 
 
 Leman v. Best, 30 111. App. 323; Wash. 520, 71 Pac. 53. 
 
 Marks V. Ryan, 63 Cal. 107; Junger- " Carlin v. Ritter, 68 Md. 478, 13 
 
 man v. Bovee, 19 Cal. 354; Wright Atl. 370, 6 Am. St. 467. 
 
 V. Macdonnell, 88 Tex. 140, 30 S. W. " Estabrook v. Hughes, 8 Neb. 496, 
 
 907; Williams v. Lane, 62 Mo. 1 N. W. 132; Wright v. Macdonnell, 
 
 App. 66. The Maryland Act of 88 Tex. 140, 30 S. W. 907; Young v. 
 
 1898, ch. 92, provides that the Consolidated Imp. Co., 23 Utah 586, 
 
 right of a tenant to remove fixtures 65 Pac. 720; Lewis v. Ocean Nav. 
 
 erected by him under one demise &c. Co., 125 N. Y. 341, 26 N. E. 301; 
 
 shall not be lost or in any manner Macdonough v. Starbird, 105 Cal. 
 
 impaired by reason of his accept- 15, 38 Pac. 510; Glass v. Colman, 14 
 
 ance of a new lease of the same Wash, 635, 45 Pac. 310. 
 premises without any intermediate 
 surrender of possession.
 
 § 719] FIXTURES. 840 
 
 the new lease -vras executed simply as the most convenient mode of 
 continuing the original tenancy. A finding that the tenant's occu- 
 pancy of the premises after the execution of the second lease was, in 
 effect, merely a continuation of the old tenancy would not be dis- 
 turbed under such circumstances.^^ 
 
 An agreement in a lease authorizing the lessee to remove fixtures 
 would have the effect of extending his right to do so for a reasonable 
 time after the termination of the tenancy. It has been held that this 
 would not affect the result on principle and that by taking a new lease 
 without any reservation of the right of removal of the fixtures, the 
 lessee would lose the title and right of removal.®^ An oral agreement 
 made after a lease is neitlier more comprehensive nor more effective 
 than an agreement expressed in the lease. The result from a renewal 
 of the lease would be the same, as it would amount to a waiver of the 
 prior parol contract. °^ 
 
 § 719. Time for removal under agreement. — Wliile the common- 
 law right to remove trade fixtures must be exercised during the term, 
 a similar privilege conferred by agreement is not so narrowly re- 
 stricted as to the time when the removal must be effected. If a house 
 is erected under a lease giving the right of removal at the expiration 
 of the term, the tenant is not required to remove the house during his 
 term, but can occupy it during the full term, and has a reasonable 
 time thereafter to remove it. If nothing appeared to prevent, the re- 
 moval should be effected without any considerable delay ; at least, no 
 great time should elapse before the work of removal is commenced. 
 If the removal should not be effected within a reasonable time after 
 the term expired, the right would cease and the property become a 
 part of the realty.^^ It follows as the logical result from this right 
 of removal that the tenant is entitled to ingress and egress for a rea- 
 sonable time for the purpose of removing his property. An express 
 clause giving a right to remove "at the end of the term" would net be 
 inserted to limit the tenant's rights of removal but to protect them. 
 Nothing is said about losing such rights if the property should not be 
 seasonably removed, but on the contrary, it expressly says that the 
 tenant shall have a right to remove at the end of the term, when, under 
 
 "Ross v. Campbell, 9 Colo. App. "Stephens v. Ely, 162 N. Y. 79, 56 
 38, 47 Pac. 465. N. E. 499. 
 
 '^'Merritt v. Judd, 14 Cal. 59, clt- =« Smith v. Park, 31 Minn. 70, 16 
 ing Fitzherbert v. Shaw, 1 H. Bl. N. W. 490; Cheatham v. Plinke, 1 
 258; Lyde v. Russell, 1 B. & Ad. 394. Tenn. Ch. 576; Wright v. Macdon- 
 
 nell, 88 Tex. 140, 30 S. W. 907. 
 
 I
 
 841 FIXTURES. [§ 719 
 
 the law as generally understood, unless otherwise agreed, it would be 
 his duty to remove before yielding up possession. Clearly, if any 
 force is to be given to this provision, it is that, after the expiration of 
 the term, the tenant should be permitted ingress and egress for a rea- 
 sonable time to remove his property.^^ However, an agreement of this 
 kind does not entitle the lessee to occupy the premises after the expira- 
 tion of the lease, that not being necessary to enable him to remove the 
 improvements.*^'' In case the removal be prevented by act of the les- 
 sor, or by a provision of the lease itself, or by an independent contract 
 with the lessor, the right of removal would only be suspended, and 
 would revive whenever the obstruction was removed. So, if the pay- 
 ment of all rent were made a condition precedent to the removal of 
 buildings, whenever the lessee did pay, even upon suit at the end of 
 the lease, his right to remove would become absolute.®^ And the right 
 of removal would not be lost if the improvements were left at the 
 request of the lessor, pending negotiations for thtir purchase or rental 
 by him.**^ But for the pendency of the negotiations, the tenants 
 might have removed the building in controversy within the limit as 
 to the time of their right to do so, and the delay is occasioned by the 
 acts and representations of the landlord made for the express purpose 
 of inducing them to act as they did. To allow the landlord to claim 
 the fixtures for such delay would be obviously unjust, and the land- 
 lord's conduct would override an express agreement that fixtures be 
 removed during the term.®^ 
 
 If by the terms of a lease, the lessee has the right to use and occupy 
 the improvements during the entire term and to remove them at the 
 end of the term, to require him to remove them before the expiration 
 of his term would violate his contract right to use and occupy them on 
 the premises until the expiration of the term; to refuse him the right 
 to remove them after the expiration of the lease, provided he did so 
 within a reasonable time, would cause him to lose his property by 
 availing himself of his contract right. Hence, the law implies his 
 right to remove the improvements within a reasonable time after the 
 expiration of the lease.®* 
 
 ^* Davidson v. Crump Mfg. Co., 99 ®= Merriam v. Ridpath, 16 Wash. 
 
 Mich. 501, 58 N. W. 475; Caperton 104, 47 Pac. 416; Young v. Consoli- 
 
 V. Stege, 91 Ky. 351, 15 S. W. 870, dated Imp. Co., 23 Utah 586, 65 Pac. 
 
 15 S. W. 84, 12 Ky. L. R. 947. 720. 
 
 «" Caperton v. Stege, 91 Ky. 351, «' Merriam v. Ridpath, 16 Wash. 
 
 15 S. W. 870, 16 S. W. 84, 12 Ky. L. 104, 47 Pac. 416. 
 
 R. 947. "^Caperton v. Stege, 91 Ky. 351, 
 
 " Cheatham v. Plinke, 1 Tenn. Ch. 15 S. W. 870, 16 S. W. 84, 12 Ky. L. 
 
 576. R. 947. 
 
 I
 
 ! 
 
 § 720] FIXTURES. 842 
 
 § 720. Moreover there is good authority for the position that the 
 rights conferred by an agreement for removal are not lost by the ac- 
 ceptance of a new lease which does not provide for removal. Of the 
 several cases"^ reaching this conclusion, the opinion in a leading one 
 was delivered by Judge Cooley, the original lease in that case contain- 
 ing a provision allowing the lessees thirty days after its termination 
 in which to remove their buildings and improvements. The whole 
 question depends on whether the fixtures, at the time the second lease 
 is executed, are to be considered as part of the realty, or as personal 
 property. In the absence of agreement fixtures are abandoned to the 
 landlord the moment the tenant surrenders the possession; but under 
 an agreement for removal the tenant has a reasonable time after the 
 end of the term to remove them. This right of removal by force of 
 an agreement might continue after the acceptance of a new lease by 
 the tenant just as it might survive his abandonment of possession. So 
 that the fixtures and improvements might be regarded as still belong- 
 ing to the tenant and as not coming within the new lease at all. They 
 would be in exactly the same situation as if they were erected anew on 
 the premises by the tenant after the execution of the new lease. 
 Whereas, in the absence of agreement, there could be no removal after 
 a surrender of possession and none after the acceptance of a new lease. 
 That the tenant must remove fixtures before surrendering possession 
 is a well-established rule, and to require the same diligence of him 
 before doing what is equivalent to a surrender of possession, so far as 
 the termination of the original tenancy is concerned, seems equally 
 fair and reasonable. This line of reasoning makes the tenant's rights 
 depend on whether or not the lease gave him a right to remove im- 
 provements. If by express agreement between the parties improve- 
 ments are determined to be chattel property with a right of removal 
 in the tenant the new lease, when executed, would cover only the 
 realty. It would no more include those chattels than any other per- 
 sonal property belonging to the tenant, and upon the demised prop- 
 erty at the time. By taking the new lease the tenant's rights to any 
 personal property belonging to him were neither lost nor in anywise 
 affected.^^ So long as the tenant has the right of removal the fixtures 
 are his, and to assume that by leasing the land upon which they are 
 placed, he leases them of his landlord, is to assume that he intends 
 
 «= Young V. Consolidated Imp. Co., Kingsbury, 39 Mich. 150; Second 
 
 23 Utah 586, 65 Pac. 720; Wright v. Nat. Bank v. Merrill Co., 69 Wis. 
 
 Macdonnell, 88 Tex. 140, 30 S. W. 501, 34 N. W. 514. 
 
 907; McCarthy v. Trumacher, 108 ^McCarthy v. Trumacher, 108 
 
 Iowa 284, 78 N. W. 1104; Kerr v. Iowa 284, 78 N. W. 1104.
 
 843 FIXTURES. [§• 721 
 
 to lease his own property. Wliether it is or is not the intention of the 
 parties in any particular case to make them the property of the land- 
 lord, is the very point to be determined.^^ The general doctrine to be 
 gathered from the cases under discussion is that a prior agreement 
 authorizing a tenant to remove fixtures and improvements is sufficient 
 to rebut any presumption that he abandons them to the landlord by 
 taking a new lease. In many of these cases other circumstances 
 strongly repel any such presumption. The actual intention of the 
 parties as shown by their conduct and agreement should govern in 
 every case. 
 
 § 721. Removal during extension of term. — The law does not in 
 strictness require of a tenant that he shall remove fixtures during the 
 term, but only before he surrenders possession, and during the time 
 that he has a right to regard himself as occupying in the character of 
 a tenant.®^ Though the earlier English authorities limit the right 
 of removal to the actual term of the demise, more recent ones extend 
 this right during the period during which the tenancy may be con- 
 sidered as continuing.^^ Both English and American cases support 
 the conclusion that, after the term and possession are surrendered by 
 the tenant, unremoved fixtures are to be regarded as abandoned to the 
 use of the landlord. When a tenant quits possession without remov- 
 ing a fixture, he is understood as making a dedication of it to his land- 
 lord.'" 
 
 " Wright V. Macdonnell, 88 Tex. absurd than a rule of law which 
 
 140, 30 S. W. 907. In the Michigan should in effect say to the tenant 
 
 case, Kerr v. Kingsbury, 39 Mich, who is about to obtain a renewal, 
 
 150, the reasoning is broad enough 'If you will be at the expense and 
 
 to cover all renewals, but the facts trouble, and incur the loss, of re- 
 
 of the case did not render a decision moving your erections during the 
 
 on that point necessary. Judge term, and of afterwards bringing 
 
 Cooley says, at page 154: "But why them back again they shall be 
 
 the right should be lost when the yours; otherwise you will be deemed 
 
 tenant, instead of surrendering pos- to abandon them to your landlord.' " 
 
 session, takes a renewal of the lease *^ Penton v. Robart, 2 East 88 ; 
 
 is not very apparent. There is cer- Weeton v. Woodcock, 7 M. & W. 14; 
 
 tainly no reason of public policy to Second Nat. Bank v. O. E. Merrill 
 
 sustain such a doctrine; on the con- Co., 69 Wis. 501, 34 N. W. 514. 
 
 trary, the reasons which saved to "^ Tyler on Fixtures, 426-7; Mack- 
 
 the tenant his right to the fixtures intosh v. Trotter, 3 M. & W. 184; 
 
 in the first place are equally influ- Minshall v. Lloyd, 2 M. & W. 450. 
 
 ential to save to him on a renewal '" Youngblood v. Eubank, 68 Ga. 
 
 what was unquestionably his be- 630; Reynolds v. Shuler, 5 Cow. (N. 
 
 fore. What could possibly be more Y.) 323; Loughran v. Ross, 45 N. Y.
 
 §§ 722, 723] FIXTURES. 844 
 
 The surrender of a lease during the term and the execution of a new- 
 one for the same period for the purpose of releasing one lessee does 
 not constitute such a new leasing as to amount to an abandonment of 
 the fixtures by the tenant. The new lease being for the balance only 
 of the term, at the same rental, payable in monthly instalments of 
 the same amount, at the same place, to the same parties, is but a re- 
 iteration of the former lease. Since it does not amount to a new leas- 
 ing of the demised premises the transaction has no effect upon the 
 ownership of the trade fixtures.'^^ 
 
 § 722. A lessor may by estoppel be precluded from claiming fix- 
 tures and improvements after the renewal of a lease. By accepting a 
 chattel mortgage on buildings erected by the tenant to secure rent, the 
 lessor admits that they are the property of the lessee, and for the les- 
 sor to renew the mortgage after a renewal of the lease estops him from 
 claiming that the right to remove improvements was lost by the execu- 
 tion of a new lease. '^ By urging a new lessee to buy fixtures from an 
 outgoing tenant a landlord is estopped to claim them as part of the 
 realty, such conduct affirming the tenant's right to sell, and conse- 
 quently his right to remove fixtures.'^^ 
 
 Where a lessee, instead of renewing his lease, elected to purchase 
 the premises as he was entitled to do under a clause in the lease, his 
 receipt of a bond for title upon the payment of certain sums in effect 
 made him a mortgagor of the premises with a right to perform the 
 conditions and acquire the legal title. By this arrangement the lessee 
 lost his right to remove fixtures which was conferred by the lease, and 
 upon non-fulfillment of the required conditions had only the rights 
 which a mortgagor in default has against his mortgagee, and thus for- 
 feited the fixtures.'^* 
 
 § 723. A mortgagee from a tenant stands in no better position than 
 the tenant. His right to the property, as against the landlord, is only 
 such as the tenant under wdiom he claimed had. It is for him to see 
 to it that the building is removed within the time which, by the law 
 and the terms of the contract, is given to the tenant for such a pur- 
 
 792; Donnelly v. Thieben, 9 111. App. "Baker v. McClurg, 198 111. 28, 64 
 
 495; Childs v. Hurd, 23 W. Va. 66, N. E. 701, affirming 96 111. App. 165. 
 
 9 S. E. 362; Carlin v. Ritter, 68 Md. " Platto v. Gettelman, 85 Wis. 105, 
 
 478, 13 Atl. 370, 16 Atl. 301; Bauern- 55 N. W. 167. 
 
 Schmidt &c. Co. v. McColgan, 89 Md. " Morrison v. Sohn, 90 Mo. App. 
 
 135, 42 Atl. 907. 76. 
 
 " Merritt v. Judd, 14 Cal. 59.
 
 845 
 
 FIXTURES. [§§ 724, 725 
 
 pose." The same principle is involved and the same conclusion should 
 be reached in case a creditor levied an execution upon a tenant's fix- 
 tures.'^^ 
 
 § 724. The term improvements, as used to describe the additions 
 made to leased premises, is a more comprehensive word than fixtures 
 and necessarily includes them and such additions as the law might 
 not regard as fixtures. Improvements would embrace every addition, 
 alteration, erection or annexation made by the lessee during the de- 
 mised term to render the premises more available and profitable or 
 useful and convenient to them." A furnace, shelves, counters, and 
 awnings were all improvements within the meaning of a covenant that 
 improvements should pass to the landlord and he could enjoin their 
 removal by an assignee of the lease.'^s The same interpretation was 
 put upon a similar provision in a case where a new boiler was set up 
 by a tenant. ■^^ 
 
 But where a clause against the removal of improvements proceeds 
 to specify the improvements which cannot be removed, the list is 
 limited to the articles enumerated and is not extended by the expres- 
 sion "and so forth" at the end of the list. The word "improvements" 
 is restricted by a videlicet clause which follows it, the office and gen- 
 eral purpose of such clause being to define and particularize that 
 which before is general. An "etc" at the end of such clause does not 
 enlarge its scope further than to indicate that articles directly con- 
 nected with those specified are included. ^° 
 
 § 725. Fixtures erected by the tenant for the purpose of carrying 
 on his trade are considered as accessory to the enjoyment of his term 
 and the law gives him a right to remove them during the continuance 
 of the term just as if they were personal property.^^ The tenant's 
 
 '= Smith V. Park, 31 Minn. 70, 16 "Powell v. Bergner, 47 111. App. 
 
 N. W. 490; Free v. Stuart, 39 Neb. 33; Weathersby v. Sleeper, 42 Miss. 
 
 220, 57 N. W. 991; Jones on Chat. 732; Perkins v. Swank, 43 Miss. 
 
 Mort, § 123. 349; Raymond v. White, 7 Cow. (N. 
 
 ™ Friedlander v. Ryder, 30 Neb. Y.) 319; Pemberton v. King, 2 Dev. 
 
 787, 47 N. W. 83. L. (N. Car.) 376; Overman v. Sas- 
 
 " French v. Mayor &c., 29 Barb, ser, 107 N. Car. 432, 12 S. E. 64; 
 
 (N. Y.) 363, s. c. 16 How. Pr. (N. Lemar v. Miles, 4 Watts (Pa.) 330; 
 
 Y) 220. Davis v. Moss, 38 Pa. St. 346; Kile 
 
 '« Parker v. Wulstein, 48 N. J. Eq. v. Giebner, 114 Pa. St. 381, 7 Atl. 
 
 94, 21 Atl. 623. 154; Van Ness v. Pacard, 2 Pet. (U. 
 
 "Agnew v. Whitney, 30 Leg. Int. S.) 137, 7 L. ed. 374; Crane v. Brig- 
 
 (Pa.) 312. ham, 11 N. J. Eq. 29; City of Buf- 
 
 ^''Loeser v. Liebmann, 60 Hun (N. falo, In re, 1 N. Y. St. 742. 
 Y.) 579, 14 N. Y. S. 569.
 
 § 725] FIXTURES. 846 
 
 right to remove trade fixtures is qualified by the restriction that he 
 must not do serious damage to the freehold. This does not reckon 
 in damage by reason of the loss of the fixtures themselves but merely 
 has regard to the state in which the premises are left after the fixtures 
 are taken out. A tenant who, with the consent of his landlord, an- 
 nexes chattels to the land in such manner that they can be removed 
 without damage to the realty, does not thereby part with his property 
 in them, but may remove them at or before the termination of his 
 lease.^^ Under this rule, chimney pieces, wainscot, grates, furnaces, 
 cider mills, buildings resting on blocks, and many other things of like 
 nature have been held to be removable by the outgoing tenant.^^ Slight 
 damage to the freehold, by reason of the removal, will not bar the 
 tenant's rights to remove fixtures. Thus bowling alleys in a room 
 leased "for hall purposes" were held to be trade fixtures, which the 
 lessee could remove, though such removal would injure the building 
 to some extent. The tenant was described as occupying the premises 
 "for hall purposes" and the alley was apparently constructed for a 
 temporary use, incident and subordinate to his occupation.®* 
 
 Engines and boilers being for the purpose of trade and manufac- 
 ture would be removable fixtures except when so annexed to the free- 
 hold that material injury would be caused by their removal. A small 
 shed erected to protect the engine and machinery would constitute a 
 part of it and could be removed by a tenant as a trade fixture if the 
 engine could be.®^ 
 
 A scenic railway and pavilion at a 'pleasure resort were held to be- 
 trade fixtures and removable by the tenant. The scenic railway un- 
 der consideration was a composite affair consisting of a pavilion with 
 a series of undulating, elevated tracks starting from and returning to 
 it, with the requisite machinery and apparatus and cars. It was only 
 available for pleasure resorts and had no general utility. The lessee 
 arranged to have it put upon the demised land as one of the agencies 
 for conducting the business of the summer resort he intended to es- 
 
 ^= Harkey v. Cain, 69 Tex. 146, 6 S. ^ Smith v. Whitney, 147 Mass. 
 
 W. 637. 479, 18 N. E. 229; Conrad v. Sagi- 
 
 *' Hanrahan v. O'Reilly, 102 Mass. naw &c. Co., 54 Mich. 249, 20 N. W. 
 
 201; Doty v. Gorham, 5 Pick. 39; Livingston v. Sulzer, 19 Hun 
 
 (Mass.) 487; Gaffield v. Hapgood, (N. Y.) 375; Updegraff v. Lesem, 15 
 
 17 Pick. (Mass.) 192; Elwes v. Maw, Colo. App. 297, 62 Pac. 342; Mason 
 
 3 East 38. v. Fenn, 13 111. 525. 
 
 "Hanrahan v. O'Reilly, 102 Mass. 
 201.
 
 847 FIXTURES. [§ 726 
 
 tablish. It was to all intents and purposes a trade fixture which the 
 lessee- could remove at the end of his lease.^^ 
 
 Fixtures for a store room made in sections, so that they can be re- 
 moved, not intended by a tenant who put them in to become a part 
 of the room, are trade fixtures.^^ 
 
 § 726. As a rule a dwelling-house or similar structure erected on 
 leasehold land is deemed a part of the realty and a person claiming it 
 to be personalty must show some fact changing its character.^* A 
 large frame building resting on stone walls and- used for the purpose 
 of curing tobacco was held not to be a trade fixture which could be 
 removed by the tenant at the end 'of his term.^^ A tenant at will who 
 has erected buildings on real estate without any agreement for remov- 
 ing them has no right to or interest in such improvements.'*'^ If a 
 building is erected on land against the will of the landowner, or with- 
 out his consent, it becomes realty, and cannot be removed therefrom 
 without the commission of waste." ^ After the expiration of a life 
 tenancy by death and the termination of a lease thereunder, the lessee 
 cannot remove buildings put on such lot during the continuance of the 
 tenancy. The buildings become a part of the realty, and go to the 
 person entitled to the remainder."^ A three-story brick eating-house 
 erected on leased land under an agreement for purchase at appraised 
 value or renewal of lease is not a fixture because it cannot be removed 
 without the lessor's consent. Buildings and improvements which can- 
 not be removed except at the will of the lessor are not fixtures. Had 
 it been intended to treat the buildings as chattels, apt language to 
 that effect could have been incorporated in the lease. The improve- 
 ments were intended to become part of the realty."^ In whatever 
 manner a fixture may be annexed, the lessee will have no right to re- 
 move it, if the lease requires its annexation, and affords no indication 
 that the connection was intended to be temporary. A building erected 
 
 *' Thompson &c. R. Co. v. Young, *" Wheeler &c. Mfg. Co. v. Kas- 
 
 90 Md. 278, 44 Atl. 1024. brouck, 68 Iowa 554, 27 N. W. 738. 
 
 "Roth V. Collins, 109 Iowa 501, " Bonney v. Foss, 62 Me. 248; Can- 
 
 80 N. W. 543. non v. Copeland, 43 Ala. 252; Dart 
 
 »* Griffin v. Ransdell, 71 Ind. 440; v. Hercules, 57 111. 446; Honzik v. 
 
 Board &c. v. Grant, 118 Cal. 39, 50 Delaglise, 65 Wis. 494. 27 N. W. 171. 
 
 Pac. 5; Boyd v. Douglass, 72 Vt. 449, "= Jones v. Shufflin, 45 W. Va. 729, 
 
 48 Atl. 638. 31 S. E. 975. 
 
 '» Carver v. Gough, 153 Pa. St. 225, »^ Fletcher v. Kelly, 88 Iowa 475, 
 
 25 Atl. 1124. 55 N. W. 474.
 
 § 727] FIXTURES. 848 
 
 by a tenant pursuant to a covenant in his lease is not removable, un- 
 less the lease gives him a right to remove it.^* 
 
 When a building erected by a tenant is not an isolated structure 
 but constitutes an addition to a house already standing upon the land, 
 the right to remove it may be denied not merely on the ground that it 
 is attached to the freehold but also because the improvement is so 
 annexed to the main building that its removal would greatly injure 
 the demised premises. A tenant can only remove such improvements, 
 the removal of which will not materially injure the demised premises 
 or put them in a worse condition than they were when he took posses- 
 sion.^^ 
 
 § 727. The strict rule that a building becomes a part of the realty 
 is relaxed where it appears that it is put up merely for the exercise of 
 a trade or for the mixed purpose of trade, agriculture, and manufac- 
 turing. This exception to the general rule does not depend upon the 
 character of the structure or thing erected, or whether it is built of 
 one material or another, or whether it is set in the earth or upon it, 
 but whether it is for the purposes of trade or manufacture, and not 
 intended to become identified with any part of the land; this is the 
 test.^*' Thus it has been held that a shaft house, and an engine, boiler 
 and other machinery placed upon mining premises for the purpose of 
 carrying on the business were trade fixtures and removable by the ten- 
 ant." 
 
 A greenhouse seems to be a trade fixture so that a tenant erecting 
 one on leased premises would be entitled to remove it at the end of 
 the term, in reliance on the doctrine that buildings which are erected 
 for the purpose of carrying on a trade are excepted from the general 
 rule. The greenhouse in dispute was built on wooden foundation, set 
 
 «*Deane v. Hutchinson, 40 N. J. Moore v. Valentine, 77 N. Car. 188; 
 
 Eq. 83, 2 Atl. 292; Pelrce v. Grice, Beers v. St. John, 16 Conn. 322; 
 
 92 Va. 763, 24 S. B. 392; Gett v. Mc- Updegraff v. Lesem, 15 Colo. App. 
 
 Manus, 47 Cal. 56; Mayor &c. v. 297, 62 Pac. 342; Royce v. Latshaw, 
 
 Brooklyn &c. Ins. Co., 41 Barb. (N. 15 Colo. App. 420, 62 Pac. 627; Om- 
 
 Y.) 231; Boyd v. Douglass, 72 Vt. bony v. Jones, 19 N. Y. 234; Van 
 
 449, 48 Atl. 638. Ness v. Pacard, 2 Pet. (U. S.) 137; 
 
 ^» Friedlander v. Ryder, 30 Neb. Talbot v. Whipple, 14 Allen (Mass.) 
 
 783, 47 N. W. 83. 177; Antoni v. Belknap, 102 Mass. 
 
 *« Western North Carolina R. v. 193. 
 
 Deal. 90 N. Car. 110; Pemberton «^ Updegraff v. Lesem, 15 Colo. 
 
 V. King, 2 Dev. L. (N. Car.) 376; App. 297, 62 Pac. 342.
 
 849 
 
 FIXTURES. 
 
 [§• 728 
 
 a few inches into the soil, and could be removed without injury to the 
 Teal estate.^^ 
 
 A stable and carriage house were declared to be on the border line 
 of buildings which can be removed as trade fixtures at the end of the 
 "term. The reasons assigned for allowing removal were that the lot 
 was vacant when the lease was executed and the buildings could be 
 removed in toto and the premises be left in good condition, the erec- 
 tions being attached to the soil only by their own weight.^^ 
 
 Informing a lessee that he will not be allowed to remove a con- 
 templated erection, built to replace one destroyed by fire, will pre- 
 clude him from claiming it as a trade fixture and the understanding 
 would be equally binding upon one who purchases the building for 
 removal. In an action by such purchaser against the landlord declara- 
 tions of the original lessee are admissible to show his understanding 
 that the building became a part of the realty.^"** 
 
 §' 728. Fixtures used for agricultural purposes are generally not 
 included among those which may be removed by the tenant, but where 
 they are used for mixed purposes of trade and agriculture, they are 
 held to belong to the tenant. Thus a cotton gin, engine condenser 
 and feeder placed on a farm, with the intention of being removed, do 
 not become fixtures so as to belong to the landlord."^ 
 
 Fruit-trees and ornamental shrubbery grown upon premises leased 
 for nursery purposes would probably be held to be personal property 
 as between landlord and tenant, though there is neither authority nor 
 reason for saying that, as between vendor and vendee, such trees and 
 .shrubbery would not pass with a sale of the land.^°- 
 
 "^ Royce v. Latshaw, 15 Colo. App. 
 297. 62 Pac. 627. 
 , "» Firth v. Rowe, 53 N. J. Eq. 520, 
 
 1/^32 Atl. 1064. 
 
 ^""Linahan v. Barr, 41 Conn. 471. 
 
 "'McMath v. Levy, 74 Miss. 450, 
 21 So. 9, 523; Tate v. Blackburne, 
 48 Miss. 1; Overman v. Sasser, 107 
 N. Car. 432, 12 S. E. 64. 
 
 '"- Smith V. Price, 39 111. 28. 
 
 Jones L. & T.— 54
 
 I 
 
 INDEX. 
 
 I 
 
 [References are to Sections.'] 
 ABANDONMENT, 
 
 of itself no discharge of assignee, 456. 
 
 not a surrender, 539. 
 
 no duty on lessor to relet after, 539. 
 
 entitles lessor to resume possession, 539. 
 
 repairs by landlord on abandoned premises, 548, 549. 
 
 reletting of abandoned premises, 549. 
 
 notice of continued liability to tenant, 550. 
 
 followed by reentry, 547. 
 
 of crops gives landlord right to harvest, 547. 
 
 right of, for lessor's failure to repair, 673. 
 
 ABATEMENT OF RENT, 
 
 not allowed after fire, 675. 
 
 origin and basis of rule, 675. 
 
 effect of seal, 675. 
 
 injury by tempest and flood, 675. 
 
 failure of water supply, 675. 
 
 acts of landlord after destruction, 675. 
 
 destruction prior to commencement of term, 675. 
 
 application of insurance money after fire, 676. 
 
 destruction of entire subject matter of lease, 677. 
 
 when interest in land passes to lessee, 677. 
 
 voluntary advance payment of rent, 677. 
 
 Kentucky rule, 677. 
 
 exceptional Nebraska doctrine, 678. 
 
 destruction by public enemies, 678. 
 
 agreements for abatement in case of destruction, 679. 
 
 lease not terminated under, 679. 
 
 election to disregard injuries, 679. 
 
 what constitutes a "casualty," 679. 
 
 lessor's covenant to repair does not abate rent, 679. 
 
 taking on eminent domain, 680. 
 
 tearing down dangerous building, 680. 
 
 statutory modifications of common law rule, 681. 
 
 ACCEPTANCE, 
 
 of lease by lessee binds him before entry, 77, 79. 
 presumption of, from beneficial nature, 79. 
 question of, decided by jury, 79. 
 
 851
 
 852 INDEX. 
 
 [References are to Sections.'] 
 ACCEPTANCE— Continued. 
 
 of assignment by assignee necessary, 427, 457. 
 of rent from assignee discharges lessee when, 452. 
 of key by landlord as proof of surrender, 548. 
 
 ACCOUNT, ACTION OF, 
 
 allowed against tenant for crop rent, 656. 
 
 between tenants in common replaced by assumpsit, 657. 
 
 ACKNOWLEDGMENT OF LEASES, 
 unnecessary between parties, 71. 
 necessary to entitle instrument to record, 71. 
 rule in Ohio and Maryland, 72. 
 rights of third parties, 73. 
 
 ACT OF GOD, 
 
 as excuse for holding over, 208. 
 
 ADMINISTRATORS, 
 
 See Executors a>-d Administbatobs. 
 
 ADVERSE HOLDING, 
 
 raises no inference of tenancy, 2. 
 
 changed to tenancy, 2. 
 
 what constitutes holding adverse, 85. 
 
 overt act necessary to change tenancy into, 696. 
 
 jury decides what constitutes, by tenant, 696. 
 
 attornment to stranger does not create, 709. 
 
 ADVERTISEMENT, 
 
 on wall not a leasing, 40. 
 
 right to place, on outside wall, 108. 
 
 not a breach of covenant against sub-letting, 468. 
 
 AGENTS, 
 
 bind undisclosed principal, 81. 
 
 mode of execution of lease by, 81. 
 
 recitals regarded as mere description, 81. 
 
 infant cannot lease through agent, 95. 
 
 authority in writing required by statute of frauds, 157. 
 
 ratification of lease by, 157. 
 
 undisclosed principals, 158. 
 
 lease by unauthorized, does not create tenancy at will, 181, 
 
 notice to quit addressed to, 263. 
 
 authority of, to give notice to quit, 265. 
 
 grantor receiving rent as, for grantee, 426. 
 
 executing assignment for undisclosed principal, 437. 
 
 action for rent on lease executed by, 660. 
 
 AGREED STATEMENT OF FACTS. 
 
 inferences not to be drawn from, 14.
 
 INDEX. 853 
 
 [Refereyices are to Sections.] 
 AGREEMENTS COLLATERAL TO LEASE, 
 valid when, 130. 
 
 contracts partly in writing and partly by parol, 130. 
 omitted term in written lease supplied by parol, 130. 
 presumption that oral negotiations merge in writing, 130. 
 oral agreements not within statute of frauds, 131. 
 
 partly within statute of frauds, 131. 
 agreement must be collateral, 132. 
 what agreements are collateral, 133. 
 time for performance the test, 133. 
 rule in England, 134. 
 
 subsequent agreements reducing rent, 135. 
 acceptance of reduced amount as ratification, 135. 
 grantee of lessor not bound, 135. 
 what constitutes sufficient consideration, 136. 
 time for performance enlarged by parol, 136. 
 execution of new lease operates as surrender, 137. 
 parol agreement for holding over, 137. 
 
 AGREEMENTS TO LEASE, 
 
 essentials of valid contract, 137a. 
 
 binding though formal instruments are to follow, 137a. 
 
 fair rent a sufficient specification, 137a. 
 
 statement of gross sum as rent, 137a. 
 
 contract for ordinary covenants too vague, 137a. 
 
 specific performance, 138. 
 
 lost by laches when, 138. 
 
 premature suit for, 139. 
 what constitutes a breach of agreement, 139. 
 unconditional refusal waives strict compliance, 139. 
 measure of damages for breach, 140. 
 loss of profits, 140. 
 expenses incurred, 140. 
 unnecessary loss must be prevented, 140. 
 lease or agreement to lease, 141. 
 
 question of construction as to intention of parties, 141. 
 defects in form, 141. 
 
 difference in effect of two kinds of contracts, 141. 
 test of intention, 142. 
 
 execution of further instrument, 142, 143. 
 agreements depending on a condition, 143, 145. 
 "agree to let" apt words of present demise, 144. 
 effect of transfer of possession, 146. 
 
 valid as evidence showing actual demise, 146. 
 
 showing waiver of formal lease, 146. 
 
 ALABAMA, 
 
 statute as to cropping contracts, 56. 
 leases limited to twenty years. 111. 
 statute as to part performance, 161.
 
 854 INDEX. 
 
 [References are to Sections.'] 
 ALASKA, 
 
 statute as to notice to quit, 277. 
 
 ALIENATION, 
 
 by either party ends tenancy at will, 186. 
 mode and purpose of transfer immaterial, 187. 
 notice of transfer necessary, 188. 
 
 AGRICULTURAL FIXTURES, 
 
 See FixTUBES. 
 AIR, 
 
 See Light A^•D Air. 
 ALTERATION, 
 
 of lease renders it void when, 62. 
 
 when lease is executed in duplicate, 129. 
 
 in amount of rent and mode of payment, 663 
 
 ALTERATIONS IN LEASED PREMISES, 
 covenant against, 380. 
 injunction against, 381. 
 constitute waste, 632. 
 unless authorized, 632. 
 rule in the United States, 633. 
 
 APPORTIONMENT OP RENT, 
 
 leases of real and personal property, 10. 
 none of liability after assignment as to time, 422, 455. 
 of liability as to assignee of part, 460. 
 determined by jury, 460. 
 
 transfer of undivided interest, 460. 
 permitted as to estate but not as to time, 667. 
 no redress for lessor ending tenancy before rent day, 667. 
 tenancy ended by entry of mortgagee, 667. 
 tenancy at will ended by transfer, 667. 
 apportionment is for benefit of owner of rent, 667. 
 on sale of part of reversion, 668. 
 on death of lessor, 668. 
 wrongdoer cannot claim benefit of, 668. 
 transferee may sue in covenant, 668. 
 jury the proper tribunal to make, 668. 
 transfer of part of leasehold as occasion for, 669, 
 surrender of part by lessee, 669. 
 eviction by title paramount, 669. 
 basis for, value not quantity assigned, 669. 
 
 possessory right not actual possession, 699. 
 lease covering land and chattels, 669. 
 past due rent never apportioned, 670. 
 
 not discharged by quitclaim deed, 670. 
 obligation to pay rent not apportioned, 670. 
 South Dakota statute as to mortgage foreclosure, 670. 
 statutory provisions as to apportionment, 671.
 
 i 
 
 INDEX. 855 
 
 [References are to Sections."] 
 APPRAISAL, 
 
 of improvements on leased premises, 379. 
 
 distinguished from arbitration, 379. 
 
 after assignment conducted by assignee, 450. 
 
 APPURTENANCES, 
 
 what passes as, in a lease, 104, 105. 
 
 ARBITRATION, 
 
 award of, cannot create tenancy, 4. 
 fixing rent in renewal lease by, 346. 
 
 ARIZONA, 
 
 statute as to notice to quit, 278. 
 forfeiture for non-payment of rent, 506. 
 
 ARKANSAS, 
 
 statute as to notice to quit, 279. 
 forfeiture for tion-payment of rent, 507. 
 purchase of tax title by tenant, 690. 
 
 ASSAULT AND BATTERY, 
 
 action of, by tenant against landlord, 228. 
 
 ASSESSMENTS, 
 
 See Taxes and Assessments. 
 ASSIGNEE, 
 
 of reversion entitled to collect rent, 422. 
 
 how distinguished from sub-tenant, 445. 
 
 double remedy against lessee and assignee, 447. 
 
 recovery discharges both pro tanto, 448. 
 
 proper party to act in appraisement, 450. 
 
 liable for money paid in his behalf by lessee, 451. 
 
 bound by covenants running with land, 455. 
 extent and basis of liability, 455. 
 no apportionment of rent in favor of, 455. 
 
 assignment over discharges, when, 455, 456. 
 
 liability of, to pay taxes, 455. 
 
 sufficiency of assignment over, 456. 
 
 conveyance of equitable title, 456. 
 mere abandonment insufficient, 456. 
 
 acceptance by assignee essential, 457. 
 
 devisee not liable as, until acceptance, 457. 
 
 actual entry unnecessary, 458. 
 
 assignment by way of mortgage, 458. 
 
 doctrine in Missouri and New York, 458. 
 
 possession necessary against third persons, 458 
 
 assignees of the reversion, 459. 
 
 of part of leasehold liable for pro rata share of rent, 460. 
 
 of undivided interest subject to same rule, 460. 
 
 assumption by, of liability on covenants, 462. 
 
 what constitutes such assumption, 463. 
 
 estoppel in favor of assignee, 473.
 
 856 INDEX. 
 
 [References are to Sections.'\ 
 ASSIGNMENT OF LEASE, 
 by infant lesse*^, 97. 
 
 of illegal lease does not make it valid, 124. 
 by parol invalid, 151. 
 
 part performance by transfer of possession, 151. 
 right of lessor to assign his interest, 421. 
 attornment not necessary, 421. 
 rule in England as to attornment, 421. 
 rent follows the reversion, 422. 
 no apportionment of liability as to time, 422. 
 payment of rent to lessor after assignment of reversion, 422. 
 effect of transfer by sale on execution, 422. 
 Illinois statute as to attornment, 423. 
 mode of transferring reversion, 424. 
 transfer of lease alone, 424. 
 transfer of leases in fee, 424. 
 exception of rent in grant of reversion, 425. 
 attornment defined, 426. 
 attornment by payment of rent, 426. 
 covenant in assignment to deliver possession, 427. 
 transfer of possession by symbol unnecessary, 427. 
 acceptance by transferee of tenant, 427. 
 merger on assignment to lessee, 428. 
 mortgage of leasehold to lessor, 428. 
 legal interest necessary to merger, 428. 
 undivided interests produce merger when, 428. 
 sale on partition, 428. 
 effect of sub-tenancy on merger, 429. 
 liability of sub-tenants on covenants, 429. 
 English statutory provision covering such cases, 429. 
 election not to have merger take place, 429. 
 assignment of lessor's interest under lease without a transfer of 
 
 any rights in the reversion, 430. 
 action of debt for rent in such case, 430. 
 assignment of rent already due, 430. 
 assignment of crop rent, 430. 
 equitable lien conferred by assignment, 430. 
 transfer of lessee's interest, 431. 
 leases at will and from year to year, 431. 
 injunction against assignment, 431. 
 collateral agreements against sub-letting, 431. 
 lease upon shares not assignable, 431. 
 
 condition in assignment against future assignments invalid, 431. 
 assignment of renewal right, 431. 
 statutory provisions against assignment, 432. 
 in Kansas, 432. 
 in Missouri, 432. 
 in Kentucky, 432. 
 Georgia statutes, 433.
 
 INDEX. 857 
 
 [References are to Sections.'] 
 ASSIGNMENT OF 1.EASE— Continued. 
 Texas statute, 434. 
 
 no tenancy between assignee and assignor, 435. 
 caveat emptor is the rule in sale of leasehold, 435. 
 remedies of assignee for eviction, 435. 
 what constitutes fraud in assignment, 435. 
 implication of covenants in assignment, 435. 
 introduction of express covenants, 435. 
 what passes on an assignment, 436. 
 form of assignment immaterial, 437. 
 form of assignment by agent, 437. 
 deed in fee effective as assignment, 437. 
 indorsement on back of lease, 438. 
 "sold" equivalent to "assigned," 438. 
 signing and sealing blank paper no assignment, 438. 
 delivery essential, 438. 
 compliance with contract to assign, 438. 
 condition against assignment, effect of, 438. 
 seal necessary when, 439. 
 
 statute of frauds covers assignments, 151, 440. 
 part performance of parol assignment, 440. 
 parol assignment of parol lease, 441. 
 implication of assignment from occupation, 442. 
 rebutting this presumption, 442. 
 receiver in charge not an assignee, 443. 
 sale on execution operates as assignment, 444. 
 decree of sale on lien judgment, 444. 
 distinction between assignee and sub-tenant, 445. 
 under-lease for full term is assignment, 446. 
 technical words unnecessary, 446. ♦ 
 
 instrument taking effect both as lease and assignment, 446. 
 right of reentry a mere chose in action, 446. 
 express covenants bind after assignment, 447. 
 implied covenant discharged by assignment, 447. 
 double remedy open to lessor after assignment, 447. 
 absolving lessee from express covenants, 448. 
 express continuance of lessee's liability, 448. 
 effect of assent to second assignment, 448. 
 lessee discharged by authorized change in mode of use, 448. 
 lessee becomes surety for assignee, 449. 
 liability of lessee not affected by duration of term, 450. 
 lessee can recover amounts paid from assignee, 451. 
 not restricted to immediate assignee, 451. 
 liability of assignee under forbidden assignment, 451. 
 liability on covenants to repair and maintain, 451. 
 discharge of lessee by acceptance of rent from assignee, 452. 
 what constitutes an express covenant to pay rent, 452. 
 surety for lessee not discharged by assignment, 453. 
 lessor's liability on covenants after assignment, 454.
 
 858 INDEX. 
 
 [References are to Sections.'] 
 ASSIGNMENT OF LEASE— Continued. 
 
 assignee is bound by express covenants, 455. 
 arises without express assumption, 455. 
 privity of estate and privity of contract, 455. 
 no apportionment of liability for rent or taxes, 455. 
 extent of sub-tenant's liability, 455. 
 assignee discharged by assignment over, 456. 
 absolute transfer necessary for this purpose, 456. 
 acceptance of second assignment necessary, 456. 
 equitable assignment insufficient, 456. 
 unrecorded deed of assignment, 456. 
 mere abandonment not sufficient, 456. 
 liability for prior breaches continues, 456. 
 assignee must accept assignment, 457. 
 devisee must accept leasehold, 457. 
 assignees by operation of law, 457. 
 actual entry by assignee unnecessary, 458. 
 liability rests on privity of estate, not on occupation, 458. 
 assignments by way of security, 458. 
 lienor is not assignee, 458. 
 rights of mortgagee of reversion, 459. 
 
 liability of assignee of reversion released by second transfer, 459. 
 pro rata liability of assignee of part, 460. 
 apportionment by jury, 460. 
 transfer of undivided interest, 460. 
 liability on covenant to deliver up in that case, 460. 
 general assignment includes leasehold when, 461. 
 assumption of covenants by assignee, 462. 
 basis of liability to lessor, 462. 
 consideration for assumption, 462. 
 what constitutes an assumption of covenants, 463. 
 taking deed "subject to" some condition, 463. 
 sufficient for assignee to "assume" lease, 463. 
 Condition against assignment and subletting, 464-495. 
 not a usual provision in lease, 464. 
 construction of such provisions, 464. 
 intention of parties controls, 464. 
 provision for reentry valid against sub-tenants, 464. 
 such provision affects value of lease, 464. 
 forbidden assignment not void but voidable, 465. 
 option rests with lessor, 465. 
 waiver of ground for forfeiture, 465. 
 transfer by operation of law not a breach, 466. 
 under-letting not a breach of covenant not to assign, 467. 
 assignment is breach of covenant not to under-let, 467. 
 what constitutes a breach of such covenant, 468. 
 changes in business relations as breach, 469. 
 
 rule in Dumpor's case as to waiver of condition against assign- 
 ment, 470.
 
 INDEX. 859 
 
 [References are to Sections.} 
 ASSIGNMENT OF -LEASE— Continued. 
 
 considered as law in United States, 471. 
 effect of special license to assign or sub-let, 472. 
 waiver of right to forfeit for assignment, 473. 
 effect of acceptance of rent, 473. 
 though contrary to condition, voidable only, 495. 
 not invalid between parties, 495. 
 
 ASSUMPSIT, 
 
 See Use and Occupation, and Rent. 
 
 ASSUMPTION OF COVENANTS, 
 by assignee, 462. 
 what constitutes, 463. 
 not necessary to create liability, 455. 
 
 ASSUMPTION OF RISK, 
 
 from defects by tenant, 576. 
 
 ATTORNEY, 
 
 stipulation of fee for, valid, 64. 
 ■ Indiana statute against conditional fee, 64. 
 
 ATTORNMENT, 
 
 not necessary in United States, 421. 
 
 rule in England, 421. 
 
 Illinois statute as to attornment, 423. 
 
 definition of, 426. 
 
 payment of rent constitutes, when, 426. 
 
 to stranger an act of disclaimer, 476. 
 
 to adverse claimant not permissible, 706, 707. 
 
 to stranger after threat of eviction, 707. 
 
 unauthorized confers no constructive possession, 709. 
 
 to holder of tax title, 709. 
 
 statutory provisions as to attornment to strangers, 709. 
 
 AWNING, 
 
 tenant injured by fall of, 579. 
 
 San Francisco ordinance in regard to, 601. 
 
 tenant's right to avail himself of such ordinance, 601. 
 
 liability for, in front of tenement, 613. 
 
 B 
 BARGAIN AND SALE, 
 
 lease taking effect as, executes possession in lessee, 17. 
 
 BAWDY HOUSE, 
 
 letting adjoining tenement as, 360. 
 
 BOARDER, 
 
 not generally a tenant, 23, 24.
 
 860 INDEX. 
 
 [References are to Sections.l 
 BEQUEST, 
 
 operating as assignment, 437. 
 
 BOILER, 
 
 tenant injured by explosion of, 579. 
 
 explosion of, a casualty, 679. 
 
 a fixture removable by tenant when, 725. 
 
 BOWLING ALLEY, 
 
 removable as fixture, 725. 
 
 BUILDING, 
 
 leased eo nomine, includes what, 102. 
 
 separate rooms in tenements, 102. 
 
 no continuing breach of, covenant, 501. 
 
 liability for collapse of, 609. 
 
 not removable as fixture, 726. 
 
 when considered trade fixture, 727. 
 
 C 
 
 CALIFORNIA, 
 
 right to lease property in possession of another, 85. 
 
 statute as to yearly tenancy, 231. 
 
 statute for notice to quit, 280. 
 
 statute as to repairs by lessor, 406. 
 
 forfeiture for non-payment of rent, 508. 
 
 statute as to interpleader, 670. 
 
 statute as to lessor's duty to repair, 672. 
 
 statute as to attornment to stranger, 705. 
 
 CANCELLATION AND DESTRUCTION OF LEASE, 
 not a valid mode of effecting a surrender, 541. 
 
 CARPETING, 
 
 of passageway, defect in, 621. 
 
 CASE, 
 
 See Trespass on the Case. 
 "CASUALTY," 
 
 defined, 679. 
 
 effect of excepting, from covenant to rebuild, 405. 
 
 CAVEAT EMPTOR, 
 
 rule of, applies on assignment, 435. 
 applies on letting of premises, 576. 
 
 CESSPOOL, 
 
 considered as nuisance, 579. 
 
 CESTUI QUE TRUST, 
 
 See Trustee. 
 
 I
 
 I 
 
 INDEX. 861 
 
 [References ore to Sections.] 
 CHATTELS, 
 
 let for a term, rights of parties, 10. 
 joint lease of land and chattels, 10. 
 apportionment of rent in such case, 10, 669, 
 
 CHOSE IN ACTION, 
 
 not assignable, 658. 
 
 COAL HOLE, 
 
 liability for injury caused by defective, 600. 
 
 COMMENCEMENT OF LEASE, 
 
 See Lease; Duration of Term. 
 
 COMMUNITY LANDS, 
 right to lease, 87. 
 Washington statute as to, 88. 
 
 COLORADO, 
 
 statute as to notice to quit, 281. 
 forfeiture for non-payment of rent, 509. 
 
 COLLATERAL AGREEMENTS, 
 
 See Agreements Collateral to Lease. 
 against assignment, 431. 
 
 CONDITION, 
 
 precedent distinguished from independent agreement, 324. 
 
 covenant distinguished from condition, 326. 
 
 conditional limitation, 327, 482. 
 
 validity of condition, 482. 
 
 definition, 482. 
 
 necessity for entry, 483. 
 
 what equivalent to entry, 485. 
 
 construction of condition, 486. 
 
 not enforced in equity, 486, 490. 
 
 relief against breach of, 491, 492. 
 
 CONDITIONAL LIMITATION, 
 
 applicable during holding over, 202. 
 what constitutes, 327. 
 distinguished from condition, 482. 
 
 CONNECTICUT, 
 
 statute as to yearly tenancy, 232. 
 statute as to notice to quit, 282. 
 forfeiture for non-payment of rent, 510. 
 abatement of rent under statute, 681. 
 
 iNSIDERATION, 
 for lease, 65. 
 
 Illinois statute authorizing plea of want of consideration, 65. 
 for agreement reducing rent, 136, 137.
 
 862 INDEX. 
 
 [References are to Sections.} 
 CONSTRUCTION OF LEASES, 
 
 to be declared by court, 66. 
 instrument to be construed as a whole, 67. 
 custom of country not admissible to vary, 68. 
 inconsistent and contradictory clauses, 69. 
 weight of written and printed provisions, 69. 
 erasure of printed clause, 69. 
 meaning of term "relet," 69a. 
 instruments construed together, 69a. 
 instrument to be construed as a whole, 322. 
 words of indenture to be attributed to whom, 322. 
 reservation of crop rent construed, 322. 
 motive of covenantor immaterial, 322. 
 
 CONTINGENT LIMITATION, 
 of lease valid, 114. 
 sale of premises, 114. 
 damages payable under agreement, 114. 
 "used for railroad purposes" defined, 114. 
 happening of contingency, 115. 
 limitation distinguished from condition, 115. 
 "life of building" defined, 115. 
 
 CORPORATIONS, 
 
 lease by, not under seal, 74. 
 mode of executing leases by, 82. 
 
 CO-TENANCY, 
 
 See Tenants in Common. 
 in crops on demised premises, 54. 
 
 COVENANT, ACTION OF, 
 
 on deed poll, 80, 318. 
 
 no previous demand necessary, 503. 
 
 compared with action of debt, 650. 
 
 lies only on privity of contract, 658. 
 
 such privity transferred by assignment, 658. 
 
 COVENANTS IN LEASES, 
 
 nature of a covenant, 318. 
 deed poll and indenture, 318. 
 created without technical words, 319. 
 interpreted to carry out intention of parties, 319. 
 as to payment of royalty, 319. 
 provision for right of way, 319. 
 form of execution by joint covenantors, 320. 
 express and implied distinguished, 321. 
 instrument to be construed as a whole, 322. 
 
 words in indenture to be taken as words of party to whom they be- 
 long, 322. 
 reservation of crop rent construed, 322.
 
 INDEX. 863 
 
 [References are to Sections.^ 
 COVENANTS IN LEASES— Continued. 
 
 motive of covenantor immaterial, 322. 
 
 dependent, concurrent and independent covenants, 323, 673. 
 conditions precedent and independent agreements, 324. 
 no injunction against breach of independent covenants, 325. 
 distinction between covenant and condition, 326. 
 wnat constitutes a conditional limitaton, 327. 
 runnng of covenants, 328. 
 rule in Spenser's case, 329. 
 
 as to personal matter does not bind assigns, 330. 
 for quiet enjoyment held to run, 330. 
 affecting mode of occupation and enjoyment run, 331. 
 to buy improvements run, 332. 
 to purchase chattels do not run, 332. 
 
 no liability for prior breaches of continuing covenant, 332. 
 guaranty for rent collateral, 333. 
 to pay money in lieu of dower do not run, 333. 
 running of covenants after breach, 334. 
 what constitutes a continuing covenant, 334. 
 to insure do not run, 335. 
 For renetcal of lease, 336-348. 
 
 privilege of renewal and extension usual and valid, 336. 
 
 lease for one year with provision for continuance from year to 
 
 year, 336. 
 distinction between stipulation to renew and one to extend term, 
 
 337. 
 whether general provision to renew calls for new lease, 338. 
 notice required before end of original term, 339. 
 no notice necessary in case of extension, 340. 
 compliance with provisions as to notice, 340, 342. 
 effect of holding over, 340. 
 
 payment of rent as evidence of extension, 340. 
 right of lessor to call for election, 341. 
 effect of statement of intention by tenant, 341. 
 sufficiency of the covenant, 343. 
 perpetual renewal not ordinarily implied, 343. 
 not applicable to sub-division of property, 344. 
 parties bound and parties entitled, 345. 
 fixing rent in renewal lease by arbitration, 346. 
 conditional covenant to renew, 347. 
 happening of contingency, 348. 
 For quiet enjoyment, 349-371. 
 when implied, 349. 
 
 express covenant excludes implied ones, 350. 
 special and general express covenants, 350. 
 statutory provisions against implied covenants, 351. 
 scope of covenant for enjoyment, 352. 
 runs with land, 352. 
 no covenant implied against assignor, 352.
 
 864 INDEX. 
 
 [References are to Sectioiis.l 
 COVENANTS IN LEASES— Continued. 
 
 implied covenant against lessor's own acts, 353. 
 
 no breach without eviction, 354. * 
 
 what constitutes an eviction, 354, 355. >^ 
 
 actual and constructive eviction compared, 355, 356. 
 waiver of constructive eviction, 356. 
 physical expulsion, 357. 
 
 entry by landlord under claim of privilege, 358. 
 interference with light and air, 359. 
 nuisance on adjoining premises, 360. 
 no covenants against acts of wrong-doers, 361. 
 taking under eminent domain, 362. 
 outstanding title alone no eviction, 363. 
 serving notice to quit, 363. 
 eviction by judgment of law, 363. 
 eviction suspends rent, 364. 
 effect of partial eviction on rent, 365. 
 duty of leseor to give possession of premises, 366. 
 rule in England, 367. 
 
 right of lessee to obtain possession by suit, 367. 
 
 effect of outstanding right of possession in another, 367a. r 
 
 right of action for eviction, 368. 
 rule of damages in such actions, 369-371. 
 In regard to buildings and improvements, 372-381. 
 when to be performed, 372. 
 right to perform during renewal, 372. 
 liability of landlord for value of improvements, 373. 
 right of tenant to remove improvements, 373. 
 agreements for purchase of buildings by landlord, 374. 
 rights under alternative option to purchase or renew, 375. 
 improvements considered as part of realty, 376. 
 covenants to buy improvements run with land, 377. 
 payment into court in case of disputed claim, 377. 
 assignment of right to remove, 377. 
 mechanics' lien for improvements, 378. 
 proceedings for appraisal of improvements, 379. 
 distinction betv/een appraisal and arbitration, 379. 
 covenants against alterations, 380. 
 injunction against alterations, 380. 
 tenant's right to light and air, 381. 
 covenant not to build on adjoining close, 381. 
 Covenants restricting use of premises, 382-386. 
 validity of restriction, 382. 
 rights in absence of restriction, 382. 
 construction of such covenant, 382. 
 what constitutes such a covenant, 383. 
 effect of recitals in lease, 383. 
 breach of such covenant occurs when, 383. 
 prohibited use enjoined, 381.
 
 INDEX. 865 
 
 {References are to Sections.'] 
 COVENANTS IN 'LTSAS'ES— Continued. 
 
 covenant must be express in that case, 384. 
 
 injunction to stay waste, 384. 
 
 for personal occupation not a usual covenant, 385. 
 
 domestic relations of tenant a collateral matter, 385. 
 
 agreement not "to make or suffer" an unlawful use, 386. 
 Covenants as to sale of leased premises, 387-388. 
 
 valid and enforceable, 387, 
 
 nature of the obligation, 387. 
 
 time of performance of sale, 387. 
 
 righc to end term by sale, 388. 
 
 right of lessee to quit on sale, 388. 
 
 bona fide sale required, 388. 
 Covenants for insurance, 389, 390. 
 
 extent of lessee's liability under, 389. 
 
 mode of effecting insurance, 389. 
 
 such covenant runs with the land, 389. 
 
 measure of damage for failure to insure, 390. 
 Covenants for repairs, 391-410. 
 
 regarded as a usual covenant, 391. 
 
 sufficiency of oral undertaking, 391. 
 
 extent of lessee's liability under, 391. 
 
 sub-tenant's covenant, 391. 
 
 bound to repair inevitable accident, 392. 
 
 basis of this liability, 392. 393. 
 
 express qualifications of liability, 392. 
 
 liability affected by form of covenant, 392, 393. 
 
 agreement to deliver in good order and condition, 393. 
 
 Mississippi code provision, 393. 
 
 liability affected by nature of property, 393. 
 
 "unavoidable casualty" defined, 394. 
 
 negligence of tenant a question for jury, 394. 
 
 "damages by the elements" defined, 395. 
 
 "external parts" of premises defined, 396. 
 
 covenant refers to condition of premises at time of letting, 397, 402. 
 
 lessee to rebuild after condemnation by authorities, 397. 
 
 extent of repair required by covenant, 397. 
 
 "habitable" defined, 397. 
 
 "necessary repairs" defined, 397. 
 
 lessee is without claim on insurance, 398. 
 
 effect of ordinance forbidding wooden buildings, 399. 
 
 duty to maintain machinery, 400. 
 
 painting, papering and decorating, 401. 
 
 right of action for failure to return in good condition accrues when, 
 403. 
 
 ■what constitutes a continuing covenant to repair, 403. 
 
 obligation on landlord rests on express contract, 404. 
 
 what amounts to an agreement to repair, 404. 
 
 effect of voluntary repairs by landlord, 404. 
 
 Jones L. & T.— 30
 
 866 INDEX. 
 
 [References are to Sections.l 
 COVENANTS IN l^B ASKS— Continued. 
 
 insurance money need not be used in rebuilding, 405. 
 excepting casualty from repair covenant does not exempt from lia- 
 bility for rent, 405. 
 right of landlord to enter after destruction, 405. 
 California statute a^ to repairs, 406. 
 statutory provisions in the Dakotas, 407. 
 covenant for outside repairs, 408. 
 extent of lessor's obligation under covenant to repair, 408, 588-598 
 
 (see Defects in Demised Premises), 
 notice to landlord of lack of repair, 409. 
 when lack of repair is visible, 409. 
 
 remedies of tenant for breach of covenant to repair, 410. 
 measure of damages for breach, 410. ^, 
 
 Covenant to pay taxes, 411-420. Ji 
 
 runs with land, 411. 
 
 rights of lessee against assignee for taxes, 411. 
 right of assignee of reversion, 411. 
 form of covenant, 411. 
 payment of taxes not a part of rent, 411. 
 liability for taxes in absence of agreement, 412. 
 new buildings erected by tenant, 412. 
 exempt property, 412. 
 
 statutory duty of tenant to pay taxes, 413. 
 recovery back of money so paid, 413. 
 effect of special agreements, 413. 
 responsibility on life tenant, 413. 
 water rate not a tax or assessment, 414. 
 landlord not bound to pay water rates, 414. 
 implication of agreement to pay them, 414. 
 tenant's covenant to pay water rate, 414. 
 construction of covenant to pay taxes, 415. 
 special assessments included when, 415. 
 license fee for lessor not payable by lessee, 415. 
 apportionment of taxes, 416. 
 levy distinguished from assessment, 417. 
 liability for taxes not payable till after end of term, 417. 
 taxable year defined, 417. 
 invalid taxes not included in covenant, 418. 
 destruction of premises does not release covenantor, 419. 
 what constitutes a breach of such covenant, 420. 
 prior payment by lessor unnecessary, 420. 
 necessity for demand, 420. 
 damages for breach, 420. 
 
 covenant in assignment to deliver possession, 427. 
 express, not discharged by assignment, 447. 
 implied, discharged by assignment. 447. 
 double remedy on, after assignment, 447. 
 absolving lessee from express covenants, 448 
 
 I
 
 I 
 
 INDEX. 867 
 
 [References are to Sections.] 
 COVENANTS IN 1.EASES— Continued. 
 
 no apportionment of, to repair and deliver up possession, 460. 
 
 no forfeiture for breach of, 487, 488. 
 
 what constitutes a continuing covenant, 500. 
 
 election to treat covenants as independent, 673. 
 
 rent not abated by lessor's, to repair, 679. 
 
 CROP RENTS AND CROPPING CONTRACTS, 
 definition of the phrase, 46. 
 status of cropper, 46. 
 general rules of construction, 46. 
 intention the test as to whether a tenancy exists, 47. 
 inference from words "lease" and "demise," 47. 
 imputing intention not to create tenancy, 48. 
 contracts of hire to work land, 49. 
 character of occupation as a test, 50. 
 no partnership created by such contracts, 50. 
 effect of exclusive possession and control, 51. 
 rent may be paid in kind under lease, 52. 
 tenancy carries idea of legal ownership, 53. 
 agreements in regard to ownership of crop, 53. 
 co-tenancy in both land and crops, 54. 
 crop rent considered as a reservation, 55. 
 New Hampshire doctrine, 55. 
 statutory regulation of cropping contracts, 56. 
 reservation of crop rent construed, 322. 
 replevin by assignee of crop rents, 430. 
 lease for, not assignable, 431. 
 right of landlord to gather abandoned, 547. 
 right of landlord to sue for injury to, 645. 
 recovery of, by action at law, 656. 
 belong to year when they are harvested, 656. 
 North Carolina statute as to division, 656. 
 
 CURTESY, 
 
 not a subject of lease, 89. 
 not allowed in leasehold, 173. 
 
 CURTILAGE, 
 
 what passes under designation, 107. 
 
 CUSTOM OF COUNTRY, 
 
 not admissible to vary construction, 68. 
 
 gives right to emblements after fixed term when, 569. 
 
 D 
 
 DAM, 
 
 flowing land creates an easement, 45. 
 responsibility for negligent use of water gates, 606. 
 what included among tolls earned by, 663.
 
 868 INDEX. 
 
 \_References are to Sections.'i 
 "DAMAGES BY THE ELEMENTS," 
 defined, 395. 
 
 DAMAGES. MEASURE OF, 
 
 for breach of agreement to lease, 140. 
 
 loss of profits, 140. 
 
 expenses Incurred by lessee, 140. 
 
 unnecessary loss to be prevented, 140. 
 
 in action for eviction, 369-371. 
 
 for failure to insure, 390. 
 
 for failure to repair, 410, 672. 
 
 for failure to pay taxes, 420. 
 
 DATE, 
 
 not essential to lease, 60. 
 lease takes effect from delivery, 60. 
 term commences from day of date, 60. 
 Sunday leases, 61. 
 
 DEATH, 
 
 of either party revokes license, 37. 
 does not terminate lease for years, 111. 
 does not invalidate renewal agreement, 345. 
 of lessee, continued liability of executor, 447. 
 of cropper during year of occupancy, 547. 
 apportionment of rent after, 668. 
 estoppel to deny title after, 700. 
 
 DEBT, ACTION OF, 
 
 by assignee of rent without the reversion, 430. 
 
 maintainable when, 650. 
 
 for reasonable value, 650. 
 
 nature and origin of indebitatus assumpsit, 651. 
 
 lies not till end of term, 661. 
 
 DECEIT, 
 
 See Fraud. 
 DEED POLL, 
 
 lease by instrument of such nature, 57. 
 abolished in Missouri, 57. 
 action of covenant will not lie on, 80, 318. 
 definitions, 318. 
 
 DEFECTS IN DEMISED PREMISES, 
 
 no implied warranty against, 574. 
 rule of caveat emptor applies, 574. 
 liability for damage caused by, 576. 
 tenant assumes risk when, 576. 
 personal injuries to tenant or guest, 579. 
 rule of caveat emptor applies as to inherent defects, 579. 
 and as to obvious and apparent defects, 579.
 
 INDEX. 869 
 
 [References are to Sections.} 
 DEFECTS IN DEMISED PREMISES— Continued. 
 
 fraudulent concealment a ground for liability, 580. 
 
 what constitutes fraud, 580. 
 concealed defects not discoverable on examination, 581. 
 Minnesota statute, 581. 
 landlord's duty to learn of defects, 582. 
 unsanitary condition of premises, 583. 
 injuries to guests of the tenant, 585. 
 injuries to property of the tenant, 586. 
 Georgia statute, 587. 
 Liability imposed hy lessor's agreement to repair, 588-598. 
 no duty to repair in absence of agreement, 588. 
 clear language necessary to create obligation, 589. 
 extent of statutory duty to repair fire escapes," 589. 
 payment by landlord for repairs made by tenant, 590. 
 voluntary promise to pay for repairs, 590. 
 no duty to repair inevitable accidents, 590. 
 exempting lessee does not bind lessor to make repairs, 591. 
 landlord's responsibility for damage rests on his breach of contract, 
 
 592. 
 measure of damages, 592. 
 
 damages for personal injuries are too remote, 592. 
 no recovery in tort allowed, 592. 
 notice to landlord of need of repairs, 593. 
 tenant's contributory negligence protects landlord, 594. 
 rights conferred on third persons by landlord's covenant to repair, 
 
 595. 
 liability for unsafe repairs, 596. 
 
 when made by agent or independent contractor, 597. 
 non-performance of voluntary promise to repair, 598. 
 When the defect constitutes a nuisance, 599-611. 
 primary liability rests on occupier, 599. 
 "occupier" defined, 599. 
 landlord liable when, 599. 
 statement of general rule, 599. 
 effect of technical outstanding title, 599. 
 injuries on abutting sidewalks, 600. 
 
 defective scuttle or coal hole, 600. 
 general supervision a basis of liability, 600. 
 injuries from falling articles, 601. 
 
 cap stone, window-blind, awning, 601. 
 falling snow and ice, 602. 
 
 landlord and tenant both responsible when, 603. 
 necessity for request to abate nuisance, 604. 
 lessor is not liable when, 605. 
 improper use does not make lessor liable, 606. 
 lessor is liable when, 607. 
 injuries on public wharves, 608. 
 collapse of building, 609.
 
 870 IXDEX. 
 
 IReferences are to Sections.'\ 
 DEFECTS IN DEMISED PREMISES— C07itinued. 
 statutory nuisances, 610. 
 no criminal liability on lessor, 610. 
 what constitutes a reletting of premises, 611. 
 Premises occupied by more than one tenant, 612-624. 
 no implied covenant of fitness, 612. 
 extent of landlord's duty to repair roof, 612. 
 
 to maintain side walls, 613. 
 
 to make an awning secure, 613. 
 landlord's duty as to common passageways, 614, 615. 
 injuries cauced by water flowing from closet, 616. 
 persons to whom landlord's duty extends, 617, 618. 
 landlord only responsible for reasonable care, 619. 
 place where accident occurs, 620. 
 
 defective carpeting of passageways, 621. 
 liability for negligent repairs, 622. 
 
 for negligence of janitor, 623. 
 duty of tenant to use due care^ 624. 
 liability for injury to servant, 624. 
 
 DELAWARE, '^^ I 
 
 requirement for seal, 74. •''I 
 
 statute as to yearly tenancies, 234. 
 
 notice to quit, 283. 
 
 doctrine as to emblements, 569. ^ ^^.1 
 
 DELIVERY, I 
 
 of lease a question of intent, 83. / } 
 
 rule as to escrows, 83. 
 
 of instruments executed in duplicate, 83. 
 
 possession of instrument as evidence of, 83. 
 
 of assignment of lease essential, 438. 
 
 DEMAND FOR RENT, 
 
 necessary before forfeiture, 503. 
 
 sufficiency of demand, 503. 
 
 when continued default is a cause of forfeiture, 503. 
 
 in action of use and occupation, 503. 
 
 no demand for performance of other covenants, 503. 
 
 stipulations dispensing with demand, 504. 
 
 DENIAL OF TITLE, 
 
 by lessee is forbidden, 682. 
 
 origin and extent of rule, 682. 
 
 by purchaser let into possession, 682. 
 
 reason for rule, 682. 
 
 power and capacity of lessor, 683. 
 
 surety for lessee bound by estoppel, 683. 
 
 suit by owners in severalty to recover possession, 684. 
 
 tenant at will bound by estoppel, 685.
 
 IXDEX. 871 
 
 IReferences are to Sections.'] 
 DENIAL OF TIT1L,B—C(nitinued. 
 
 occupation under void lease, 686. 
 
 disability to contract, 687. 
 
 tenant holding over after term, 6S8. 
 
 effect of restoring possession, 688. 
 
 what constitutes a sufficient restoration, 688. 
 
 purchase of adverse title by tenant, 689. 
 
 encumbrance by life tenant, 689. 
 
 tax title, 690. 
 Arkansas doctrine, 690. 
 Kansas and Missouri doctrine, 690. 
 right to deny existence of tenancy, 691. 
 province of court and jury, 691. 
 limited to land included in lease, 692. 
 acceptance of lease by purchaser in possession, 693. 
 mortgagee as tenant of mortgagor, 693. 
 waiver of estoppel, 694. 
 no estoppel against stranger, 694. 
 lessee not in possession, 694. 
 disclaimer and disavowal of tenancy, 695, 
 running of statute of limitations, 695. 
 overt act necessary to make holding adverse, 696. 
 what constitutes adverse holding, 696. 
 non-payment of rent, 696. 
 tenant at will, 696. 
 
 effect of previous possession on tenant's right to deny title, 697. 
 mistake or misrepresentation, 697. 
 contrary doctrine in California and Michigan, 698. 
 successors of the tenant's interest, 699. 
 
 knowledge of tenancy not material, 699. 
 estoppel runs in favor of assignee of reversion, 700. 
 validity of assignment open to attack, 700. 
 administrator of lessor, 700. 
 
 burden of establishing exception on tenant, 701. 
 lessor need give no evidence of title, 701. 
 effect of nature of premises demised, 701. 
 effect of inducing acceptance of lease by fraud, 702. 
 necessity for acceptance of possession, 702. 
 tenant participating in fraud, 702. 
 waiver of tenant's rights by laches, 702. 
 showing transfer or expiration of landlord's title, 703. 
 
 tax or execution sale, 703. 
 
 foreclosure of mortgage, 703. 
 tenant may purchase at execution sale, 704. 
 rights of tenant after eviction, 705. 
 actual eviction unnecessary, 705. 
 attornment to stranger, 705. 
 
 statutory provisions, 705. 
 evicted tenant may take new lease, 706.
 
 I 
 
 873 INDEX. I 
 
 [References are to Sections.] 
 DENIAL OF TITL,B—Cantinued. 
 
 threatened eviction sufficient, 707. 
 
 lessee may exercise power of eminent domain, 708. 
 
 no constructive possession conferred by attornment, 709. 
 
 DESCRIPTION OF PREMISES, 
 
 necessary in lease, 98. 
 
 parol evidence to apply description, 98. 
 
 technical misdescriptions, 98. 
 
 misstatement of quantity, 98. 
 
 entry cures uncertain description, 99. 
 
 extrinsic evidence to locate between parties, 99. 
 
 inadequate description not cured by parol, 100. 
 
 description by reference, 100. 
 
 subject matter included within a description, 101. 
 
 hotel described as "house," 101. 
 
 "furniture" includes what, 101. 
 
 lease of building eo nomine, 102. 
 
 separate rooms in tenements, 102. 
 
 designation by street number, 103. 
 
 easements passing as appurtenant, 104. 
 
 right to maintain exhaust pipe, 104. 
 rights to use abutting streets, 105. 
 easement for light and air, 106. 
 what included by term "curtilage," 107. 
 outside walls used for signs, 108. 
 riparian boundaries, 109. 
 right to accretions, 109. 
 
 reservation to lessor of part of premises, 110. 
 land includes improvements, 110. 
 
 DESTRUCTION, 
 
 of entire subject matter ends lease, 474. 
 
 by fire does not abate rent, 675. 
 
 by tempest and flood, 675. 
 
 prior to commencement of term, 675. 
 
 of entire subject matter abates rent, 677. 
 
 contrary rule in Kentucky, 677. 
 
 Nebraska law contrary to general rule, 678. 
 
 DEVISEE, 
 
 not liable as assignee till acceptance, 457. 
 
 t^SCLAIMER OF RELATION, 
 
 by tenant works a forfeiture, 474a. 
 
 hostile claim of title a repudiation, 474a. 
 
 acts must be open, continuous, and notorious, 474a. 
 
 sufficiency of acts to constitute disclaimer, 475. 
 
 attornment or delivery of possession to stranger, 476. 
 
 conveyance by tenant, 477. 
 
 forfeiture by matter of record, 478.
 
 INDEX. 873 
 
 [References are to Sections.'] 
 DISCLAIMER OF KEI^ATIO^— Continued. 
 forfeiture by deed recorded, 479. 
 payment of rent to stranger, 480. 
 mere words never work forfeiture, 481. 
 
 DISTRESS FOR RENT, 
 
 waives forfeiture, 497. 
 
 right to forfeit not contingent on lack of sufficient, 502, 
 
 definition of remedy, 650. 
 
 cannot include interest on rent, 666. 
 
 DISTRICT OF COLUMBIA. 
 
 statute as to yearly tenancies, 233. 
 statute as to notice to quit, 284. 
 
 DOWER RIGHT, 
 
 not capable of lease, 87, 333. 
 
 none in leasehold estate, 173. 
 
 payment in lieu of, a personal undertaking, 333. 
 
 emblements after sale, 570, 571. 
 
 clearing wild land, 636. 
 
 DUE CARE, 
 
 See Negligence. 
 DURATION OP TERM, 
 
 may be for years, for life, or in perpetuity, 111. 
 
 statutory limits in Alabama, 111. 
 
 agricultural lands in New York, 111. 
 
 death of parties does not affect. 111. 
 
 term of lease for years must be certain, 112. 
 
 if uncertain creates mere tenancy at will, 112. 
 
 determined by matter ex post facto, 112. 
 
 leases from an indefinite future time, 113. 
 
 contingent limitation of term, 114. 
 
 on sale of premises, 114. 
 happening of contingency, 115. 
 necessity for entry by lessor, 115. 
 "life of building" defined, 115. 
 leases for life, 716. 
 omission of word "heirs," 716. 
 term lasting for several lives, 716. 
 errors in calculating length of term, 717. 
 different parcels terminating at different times, 718. 
 word "from" either inclusive or exclusive, 719. 
 "from the date" equivalent to "from the day of the date," 719. 
 
 DWELLING HOUSES, 
 
 implied warranty of fitness, 576. 
 doctrine as to furnished houses, 577-578.
 
 874 INDEX. 
 
 [References are to Sections.1 
 
 E 
 
 EASEMENTS, 
 
 granted only by deed, 36. 
 
 grant of right of way constitutes, 39. 
 
 flowing of land an easement, 45. 
 
 grant of, distinguished from lease, 58. 
 
 pass as appurtenances when, 104, 105. 
 
 for light and air protected by injunction, 106. 
 
 tenancy by sufferance after taking of, by eminent domain, 221. 
 
 EMBLEMENTS, 
 
 vendee in possession entitled to, 32. 
 
 right of servant to, 21. 
 
 belong to lessor after forfeiture, 493. 
 
 definition of term, 567. 
 
 ''fructits i7i(lustriale.s" defined, 567. 
 
 driftwood belongs to lessee, 567. 
 
 turpentine from trees is personal property, 567. 
 
 reasons for doctrine of emblements, 567. 
 
 growing crops considered as personal property, 567. 
 
 tenant owns, during term, 568. 
 
 provisions for spending bay and manure on premises, 568. 
 
 doctrine of, rests on uncertainty of tenure, 569. 
 
 rule in Delaware, 569. 
 
 rule in New Jersey, 569. ..^ 
 
 rights conferred by contract, 569. 
 
 EMINENT DOMAIN, 
 
 taking by, creates no tenancy, 7. 
 
 tenancy by sufferance possible after taking easement by, 221. 
 
 right of tenant by sufferance after taking, 226. 
 
 taking under, entitles lessee to damages, 643. 
 
 agreement to abate rent, does not include taking under, 680. 
 
 no estoppel upon lessee against use of power, 708. 
 
 ENCUMBRANCE, 
 
 purchase of, by life tenant, 689. 
 
 ENTRY, 
 
 by landlord after destruction, 405. 
 
 by assignee not necessary to bind him, 458. 
 
 essential to take advantage of condition, 482. 
 
 necessity for, generally, 483. 
 
 in pursuance of covenants not unlawful, 483. 
 
 waiver of necessity for, 483. 
 
 service of declaration in ejectment as substitute for, 484. 
 
 no notice of forfeiture necessary beyond entry, 485. 
 
 right of, not assignable, 494. 
 
 provision that does not work forfeiture of rents, 501. 
 
 effect of, by tenant after abandonment, 547.
 
 INDEX. 875 
 
 [References are to Sections.'] 
 EQUITY, 
 
 right of reformation of lease in, 70. 
 
 lost by laches, 70. 
 
 third parties affected with knowledge, 70. 
 
 injunction against interference with light and air, 106. 
 
 specific performance of agreement to lease, 138. 
 
 loss of right by laches, 138. 
 
 premature suit for, 139. 
 
 no injunction against breach of independent covenants, 325. 
 
 injunction against alterations, 380. 
 
 prohibited use enjoined, 384. 
 
 Injunction to stay waste, 384. 
 
 injunction against assignment, 431. 
 
 enjoining collection of purchase money for leasehold, 435. 
 
 decree for sale of leasehold, liability of assignee, 444. 
 
 will not compel delivery of lease after cale on execution, 444. 
 
 relief against sub-tenant of insolvent lessee, 445. 
 
 bill in, not appropriate remedy to regain possession, 563. 
 
 injunction against threatened waste, 638. 
 
 ESCROW, 
 
 rule as to delivery of lease in, 83. 
 
 ESTOPPEL, 
 
 to deny assignment after transfer of possession, 440. 
 
 of lessor against entering on assignee or sub-tenant, 473. 
 
 by acceptance of rent, 473. 
 
 of lessee to deny lessor's title, see Dexial of Title. 
 
 to claim fixtures, 722. 
 
 EVICTION, 
 
 essential to breach of covenant for quiet enjoyment, 354. 
 what constitutes an eviction, 354, 355. 
 , actual and constructive compared, 355, 356. 
 waiver of constructive, 356. 
 physical expulsion, 357. 
 
 entry by landlord under claim of privilege, 358. 
 Interference with light and air, 359. 
 nuisance on adjoining premises, 360. 
 acts of wrong doers do not constitute, 361. 
 taking under eminent domain, 362. 
 outstanding title alone does not constitute, 363. 
 service of notice to quit, 363. 
 judgment of law, considered as, 363. 
 effect of, is to suspend rent, 364. 
 partial eviction suspends rent when, 365. 
 right of action for eviction, 368. 
 u]e of damages in such actions, 369-371. 
 hv title paramount as ground for apportioning rent, 669. 
 -ntitles tenant to deny landlord's title, 705. 
 effect of judgment of eviction, 705. 
 after, tenant may take new lease, 706.
 
 876 INDEX. 
 
 [References are to Sections.} 
 EXECUTION SALE OF LEASEHOLD, 
 allowed as of a chattel, 172. 
 operates as assignment, 444. 
 return of officer sufficient memorandum, 444. 
 title passes subject to equities, 444. 
 tenant may purchase at, against landlord, 704. 
 
 EXECUTORS AND ADMINISTRATORS, 
 authority to grant lease, 93. 
 can sell leasehold as chattel, 171. 
 action on guaranty of rent, 333. 
 liable after death of lessee, 447. ' 
 
 EXPLOSION, 
 
 of boiler injuring tenant, 579. 
 considered a casualty when, 679. 
 
 EXTENSION OF TERM, 
 
 See Renewal of Lease, 
 FEE, 
 
 grant of, distinguished from lease, 58. 
 ownership of, not necessary to grant of lease, 84. 
 
 FENCES, 
 
 damage for failure to repair, 410. 
 become a part of realty, 714. 
 
 FIRE, 
 
 destruction by, does not release from covenant to repair, 392. 
 distinction between repairing and rebuilding, 392. 
 Nebraska doctrine, 392. 
 responsibility rests on contract, 393. 
 construction of such covenants, 393. 
 liability of tenant for negligent, 627. 
 destruction by, does not abate rent, 675. 
 lessor's obligation to rebuild, 676. 
 
 FIRE ESCAPE, 
 
 duty of landlord to repair, 589. 
 
 FITNESS OF DEMISED PREMISES, 
 
 no implied warranty as to, 574. 
 
 no implied condition as to, 574. 
 
 rule of caveat emptor applies, 574. 
 
 oral evidence of warranty inadmissible, 575. 
 
 application of rule to demise of dwelling house, 576. 
 to letting of rooms in tenement, 576. 
 to demise of furnished apartments, 577-578. 
 FIXTURES, 
 
 general rule for articles fixed to freehold, 710. 
 
 furnishings in the nature of furniture. 710. 
 
 trover does not lie for conversion of, 710.
 
 INDEX. 877 
 
 [References are to Sections.] 
 FIXTURES— Continued. 
 
 allowing removal a modification of ancient rule, 711. 
 mode of annexation affects right of removal, 712. 
 substitutions for wornout parts, 712. 
 agreements as to removal, 713. 
 
 remedy of grantee of reversion, 714. 
 fence becomes part of realty, 714. 
 time of making agreement, 715. 
 agreements bind assignees when, 715. 
 right to remove justifies sale, 715. 
 rights of attaching creditors, 715. 
 time for removal, 716. 
 
 agreement necessary after end of term, 716. 
 what constitutes an agreement, 716. 
 
 tenants at will have reasonable time after end of holding, 716. 
 conditional right of removal, 717. 
 
 binds assignee of fixtures, 717. 
 renewal forfeits right to removal, 718. 
 mere continuance of same tenancy does not forfeit, 718. 
 what constitutes a continuance, 718. 
 Colorado doctrine, 718. 
 
 new lease following agreement for removal, 718, 720. 
 time for removal under agreement, 719. 
 removal during extension of term, 721. 
 new lease executed to release retiring partner, 721. 
 estoppel on lessor to prevent removal, 719, 722. 
 rights of lessee purchasing estate, 722. 
 mortgagee of lessee's interest, 723. 
 "improvements" defined, 724. 
 
 videlicet clause, 724. 
 erections for carrying on trade, 725. 
 
 what constitutes, 725. 
 
 scenic railway, 725. 
 
 boilers and engines, 725. 
 
 bowling alley, 725. 
 buildings cannot be removed ordinarily, 726. 
 relaxation of foregoing rule, 727. 
 declarations of lessee as evidence, 727. 
 agricultural fixtures, 728. 
 
 FLOOD, 
 
 injury by, does not abate rent, 675. 
 
 FLORIDA, 
 
 forfeiture for non-payment of rent, 511. 
 
 FLOWING LANDS, 
 
 right of, is an easement, 45.
 
 878 INDEX. 
 
 [References are to Sections.'] 
 FORCIBLE ENTRY AND DETAINER, 
 only lies in case of tenancy, 19. 
 indictment against servant holding as tenant, 21. 
 right to recover possession by force, 556. 
 early statute, 556. 
 
 tenant's good faith in holding over, 556. 
 forcible entry defined, 557. 
 civil liability of landlord, 558. 
 plea of liberum tenementuyn, 558, 561. 
 exclusiveness of remedy, 558. 
 entry to post notice of lien, 558. 
 liability for assault, 559. 
 entry on tenant legally in possession, 560. 
 special restrictions on right to enter by force, 561. 
 summary process distinguished, 562. 
 necessity for existence of tenancy, 563. 
 statutory penalty for holding over, 564. 
 bill in equity as remedy to obtain possession, 565. 
 
 FORFEITURE OF LEASE, 
 
 for assignment contrary to statute, 432. 
 by repudiation of tenant's obligation, 474a. 
 effect of hostile claim of title, 474a. ^ 
 
 acts of dicclaimer open, continued and notorious, 474a. 
 sufficiency of disclaimer to cause forfeiture, 475. 
 attornment or delivery of possession to stranger, 476. 
 conveyance by tenant a disclaimer when, 477. 
 by matter of record, 478. 
 by deed recorded, 479. 
 
 payment of rent to stranger as disclaimer, 480. 
 mere v^'ords never work forfeiture, 481. 
 By breach of condition in lease, 482-495. 
 
 condition of this nature valid and enforcible, 482. 
 
 condition defined, 482. 
 
 condition distinguished from limitation, 482. 
 
 forfeture for obscure facts not permitted, 482. 
 
 necessity for reentry, 483. 
 
 statutory substitutes for reentry, 484. 
 
 entry or equivalent acts sufficient to determine estate for breach 
 
 of condiion, 485. 
 notice of intention to forfeit necessary in Nebraska, 485. 
 condition for, to be strictly construed, 486. 
 equity will not aid to enforce a forfeiture, 486. 
 estoppel to enforce a forfeiture, 486. 
 breach of covenant confers no right of reentry, 487. 
 construed as covenants in case of doubt, 487. 
 breach of implied covenant no ground for, 488. 
 lease of mineral lands, 488. 
 by acts of sub-tenants, 489.
 
 INDEX. 879 
 
 [Refere7ices are to Sections.y 
 FORFEITURE OF LEASE— CoJitinued. 
 
 statutory, for illegal use by sub-tenant, 489. 
 equity will not enforce a forfeiture, 490. 
 removal of cloud caused by alleged forfeiture, 490. 
 relief against forfeiture by equity, 491. 
 of covenants to pay money, 491. 
 of covenants to repair or insure, 492. 
 right to emblements, 493. 
 right of entry not assignable, 494. 
 not an estate in land, 494. 
 
 exception in Illinois, New Jersey and Kansas, 494. 
 landlord may hold lessee liable on lease instead of forfeiting, 495. 
 lease not "void," but voidable after breach of condition, 495. 
 conditions for forfeiture for benefit of lessor alone, 495. 
 assignment contrary to condition voidable only, 495. 
 landlord cannot enforce in part and waive in part, 495. 
 Waiver of ground for, 496-501. 
 what constitutes a waiver, 496. 
 distinction as to conditional limitations, 496. 
 acceptance of rent constitutes, 497. 
 suit for entire amount of rent, 497. 
 distraining for rent, 497. 
 effect of mere demand for rent, 497. 
 
 lessor must have knowledge of ground for forfeiture, 497. 
 past due rent receivable without waiving rights, 498. 
 allowing default to continue not a waiver, 499. 
 permission to hold over a waiver, 499. 
 does not apply to continuing covenant, 500. 
 liability for rent subsequent to forfeiture, 501. 
 'Non-payment of rent as ground for forfeiture, 502-537. 
 no right to enter for, at common law, 502. 
 same rule applies to royalties, 502. 
 a harsh remedy, not favored by law, 502. 
 sufficiency of distress on premises, 502. 
 necessity for demanding rent, 503. 
 time and place for demand, 503. 
 amount to be demanded, 503. 
 mode of making demand, 503. 
 including interert on demand, 508. 
 demand by assignee valid when, 503. 
 use and occupation not preceded by demand, 503. 
 stipulation dispensing with demand, 504. 
 sufficiency of such stipulation, 504. 
 damages by tenant not a legal set off, 505. 
 
 state statutes regarding forfeiture for non-payment of rent, 506-537. 
 waste as a ground for forfeiture, 639. 
 
 i
 
 880 INDEX. 
 
 [References are to Sections.'i 
 FRAUD, 
 
 in inducing lease shown by parol, 125. 
 
 forged instrument and fraudulent inducement distinguished, 125. 
 
 rescission and defense of action for rent, 126. 
 
 what constitutes laches, 126. 
 
 Missouri doctrine as to trial of issue of fraud, 127. 
 
 defrauded lessee's election of remedies, 128. 
 
 prompt rescission required in Illinois, 128. 
 
 what constitutes fraud, 129, 
 
 misrepresenting legal effect, 129. 
 
 fraudulent alteration, 129. 
 
 concealing defects a ground for liability, 580. 
 
 as basis for recoupment, 674, 
 
 landlord not an insurer, 674. 
 
 lessee induced by, may deny landlord's title, 702. 
 
 FRAUDS, STATUTE OF, 
 
 applies to what collateral parol agreements, 131, 
 
 the English act, 147. 
 
 form of statutes in the United States, 148. 
 
 parol leases not absolutely void, 148. 
 
 exception of short term parol leases, 148. 
 
 requirements as to value of rent reserved, 149. 
 
 New Mexico follows English law, 150. 
 
 parol assignments forbidden, 151, 440. 
 
 part performance by transfer of possession, 151. 
 
 leases for one year from future date, 152. 
 
 extent of validity of parol lease for short term, 153, 
 
 doctrine in South Carolina and Maryland, 153. 
 
 duration of term of parol lease, 154. 
 
 renewal agreement, 154. 
 
 whether void only as to excess, 155. 
 
 sufficiency of memorandum, 156. 
 
 written I'eceipts invalid to create a legal term, 156. 
 
 ratification of parol lease, 156. 
 
 authority of agent, 157. 
 
 ratification of lease by agent, 157. 
 
 undisclosed principals, 15 S. 
 
 effect of part performance on parol lease, 159. 
 
 distinction between equity and law, 159. 
 
 what constitutes part performance, 160. 
 
 must refer to agreement, 160. 
 
 delivery of possession, 160. 
 
 making valuable improvements, 160. 
 
 part payment, 160. 
 
 Alabama statute, 161. 
 
 parol agreement to lease distinguished from parol lease, 162. 
 
 parol notice of extension, 342. 
 
 parol promise to purchase improvements, 375.
 
 INDEX. 881 
 
 I 
 
 [References are to Sections.l 
 FRAUDS, STATUTE OF— Continued. 
 
 extends to assignments of leases, 440. 
 
 of parol leases, 441. 
 undertaking by surety valid when, 662. 
 
 FRUCTUS INDUSTRIALES, 
 defined, 567. 
 
 FURNISHED HOUSE, 
 
 implied warranty of fitness when, 577-578. 
 
 FURNITURE, 
 
 in description includes what, 101. 
 distinguished from fixtures, 710. 
 
 ^'FURTHER" LIABILITY, 
 defined, 334. 
 
 G 
 
 GAMBLING, 
 
 on demised premises, 123. 
 duty of lessor to prevent, 386. 
 
 GENERAL ASSIGNMENT, 
 
 may transfer leasehold, 461. 
 
 acceptance of leasehold by assignee, 461. 
 
 as breach of condition against sub-letting, 466. 
 
 GEORGIA, 
 
 statute as to cropping contracts, 56. 
 
 statute as to yearly tenancies, 235. 
 
 statute as to notice to quit, 285. 
 
 estate for years passes as realty, 433. 
 
 right "to possess and enjoy" how transferred, 433. 
 
 forfeiture for non-payment of rent, 512. 
 
 statute as to liability for defective premises, 587. 
 
 GUARANTY, 
 
 of rent does not run with land, 333. 
 suit on, by administrator of lessor, 333. 
 none implied on assignment, 352. 
 
 GUARDIAN, 
 
 may lease ward's land, 89. 
 rent should be reserved to whom, 89. 
 mineral leases not permitted, 89. 
 for nurture without power to lease, 89. 
 Illinois statute, 89. 
 Iowa statute, 89. 
 mode of leasing, 90. 
 lease limited to Infancy of ward, 90. 
 cannrt bind ward by general covenants, 350. 
 Jones L. & T.— 31
 
 882 INDEX. 
 
 [References are to Sections.'] 
 
 H 
 
 HABENDUM, 
 
 clause not necessary in assignment, 437. 
 
 "HEIRS," 
 
 necessary to create more than life estate, 716. 
 
 HOLDING OVER, 
 
 creates tenancy from year to year, 201. 
 
 landlords right to charge tenant, 201. 
 
 new tenancy not under original lease, 201. 
 
 terms of contract remain the same, 202, 555. 
 
 conditional limitation applicable, 202. 
 
 tenant cannot create different tenancy, 202. 'i|ff 
 
 landlord's option to charge for another year, 203. SB 
 
 acceptance of rent implies assent, 204. • J 
 
 overt acts not necessary to indicate assent, 205. '■] 
 
 effect of dissent on part of tenant, 206. 
 
 rule in England, 207. 
 
 followed in Massachusetts and Missouri, 207. 
 
 surrender rendered impossible by act of God, 208. 
 
 length of, necessary to charge tenant, 209. 
 
 where landlord is responsible, 209. 
 
 Kentucky statute, 209. 
 
 rebutting presumption of yearly tenancy, 210. 
 
 covenant as to, in lease, 211. ! 
 
 express renewal, 212. 
 
 negotiations for renewal, 212. , ' 
 
 changes in amount of rent, 213. 1 
 
 penalty of double rent, 214. 
 
 by sub-tenant, 554. I 
 
 agreements as to, 555. j: 
 
 sufficiency of vacating premises, 555. | 
 
 agreements as to improvements, 555. 
 
 statutory penalty for, 564. 
 
 bill in equity as remedy to obtain possession, 565. 
 
 denial of title during, not permitted, 688. f 
 
 HOLIDAY, 
 
 rent falling due on, 661. 
 
 HUSBAND, 
 
 right of, to lease wife's land, 88. 
 right of to wife's leaseholds, 88. 
 Washington statute as to community lands, 88. 
 statute forbidding, to lease wife's land, 181. 
 
 ICE, 
 
 I 
 
 grant of right to cut, a lease, 40. 
 
 See also, Snow and Ice. 
 
 A
 
 INDEX. 883 
 
 [References are to Sections.l 
 IDAHO, 
 
 statute as to notice to quit, 286. 
 
 ILLEGALITY, 
 
 lease to aid unlawful conspiracy, 120. 
 
 landlord's responsibility for, 120. 
 
 effect of illegal user by sub-tenant, 120. 
 
 kinds of illegality, 121. 
 
 fixing knowledge on lessor, 121. 
 
 establishing defense of, 121. 
 
 lease of premises for purpose of prostitution, 122. 
 
 premises used for gambling, 123. 
 
 no estoppel to set up defense of, 124. 
 
 ILLINOIS, 
 
 statute authorizing plea of want of consideration, 65. 
 
 right of guardian to lease ward's land, 89. 
 
 leasing for purpose of prostitution, 122. 
 
 statute as to notice to quit, 287. 
 
 statute dispensing with attornment, 423. 
 
 forfeiture for non-payment of rent, 513. 
 
 surrender of leases m futuro, 546. 
 
 statute as to action for rent by undisclosed principal, 660. 
 
 defense of want of consideration, 665. 
 
 statute as to interest on rent, 666. 
 
 IMPLIED COVENANTS, 
 
 See Covenants. 
 on assignment of lease, 435. 
 
 IMPLIED WARRANTY, 
 
 of fitness, general rule, 574. 
 
 no condition as to fitness, 574. 
 
 rule of caveat emptor applies, 574. 
 
 oral evidence of warranty inadmissible, 575. 
 
 application of rule to demise of dwelling house, 576. 
 
 no liability for damage caused by defects, 576. 
 
 tenant assumes risks after inspection, 576. 
 
 application of rule to letting of rooms in tenement, 576. 
 
 defects known to landlord, and unknown to tenant, 576. 
 
 Michigan rule, 576. 
 
 application of rule to demise of furnished house, 577. 
 
 offensive odors, 577. 
 
 English doctrine, 578. 
 
 furnished rooms in a house, 578. 
 
 Massachusetts doctrine, 578. 
 
 IMPROVEMENTS ON LEASED PREMISES, 
 
 landlord liable for, only by agreement, 373. 
 
 stipulation as to removal, 373. 
 
 agreements for purchase of, by landlord, 374,
 
 384 INDEX. 
 
 [References are to Sections.} 
 IMPROVEMENTS ON LEASED FREMISKS— Continued. 
 alternative option to buy, or renew lease, 375. 
 considered as part of realty, 376. 
 covenants as to, run with land, 332, 377. 
 mechanic's lien for, 378. 
 proceedings for appraisal of, 379. 
 provision against alterations, 380. 
 cannot be removed without agreement, 590. 
 more comprehensive term than fixtures, 724. 
 
 INDENTURE, 
 
 construction of covenants in, 57. 
 delivery of counterparts, 57. 
 distinguished from deed poll, 318. 
 general principles of construction, 322. 
 
 INDEPENDENT CONTRACTOR, 
 becomes tenant when, 22. 
 
 INDIANA, 
 
 statute against conditional attorney's fee, 64. 
 right of married woman to lease lands, 87. 
 statute as to year'xy tenancies, 236. 
 statute as to notice to quit, 288. 
 forfeiture for non-payment of rent, 514. 
 forfeiture for waste, 639. 
 
 INFANCY, 
 
 of lessee, 92. 
 
 liability after enjoyment, 92. 
 
 of lessor, 95. 
 
 cannot act through agent, 95. 
 
 how lease executed during, is avoided, 95. 
 
 leased room regarded as necessary, 96. 
 
 assignment by infant, 97. 
 
 INFECTION, 
 
 duty of landlord to warn against, 584. 
 
 INSURANCE, 
 
 covenants as to, 389-390. 
 
 classed as usual covenant in leases, 389. 
 
 sufficiency of agreement, 389. 
 
 compliance with covenant, 389. 
 
 runs with the land, 389. 
 
 measure of damages for failure to insure, 390. 
 
 lessee rebuilding has no claim on, 398. 
 
 collected by landlord need not be used in rebuilding, 399, 405, 676. 
 
 INTERESSE TERMINI, 
 definition, 15. 
 rights conferred by on holder of, 15.
 
 • 
 
 ^ 
 
 INDEX. 885 
 
 [References are to Sections.} 
 INTERESSE TERMl'NI— Continued. 
 created as a future interest, 15. 
 
 landlord's right to maintain trespass not affected by outstanding, 16. 
 possession executed in lessee when lease takes effect as a bargain 
 
 and sale, 17. 
 destruction of premises during, 675. 
 
 INTEREST, 
 
 demand for rent including, valid, 503. 
 
 on rent recoverable when, 666. 
 
 not included in distress, 666. 
 
 Virginia doctrine, 666. 
 
 statutes in Illinois and Kentucky, 666. 
 
 rents and profits due mortgagor, 666. 
 
 IOWA, 
 
 guardian's right to lease ward's land, 89. 
 statute as to yearly tenancies, 237. 
 statute as to notice to quit, 298. 
 forfeiture for non-payment of rent, 515. 
 statute as to attornment to stranger, 709. 
 
 J 
 JANITOR, 
 
 landlord liable for negligence of, 623. 
 
 JOINT LESSEES, 
 
 breach of covenant not to sub-let by, 468. 
 
 K 
 
 KANSAS, 
 
 rights as to notice to quit not mutual, 259. 
 
 statutory provision as to notice to quit, 290. 
 
 statutory provision against assignment, 432. 
 
 forfeiture for non-payment of rent, 516. 
 
 doctrine as to application of insurance money after fire, 676. 
 
 purchase of tax title by tenant, 690. 
 
 attornment to holder of tax title, 709. 
 
 KENTUCKY, 
 
 statute as to effect of holding over, 209. 
 
 statute as to yearly tenancies, 238. 
 
 statute as to notice to quit, 291. 
 
 statutory provisions against assignment, 432. 
 
 statute as to interest on rent, 666. 
 
 statute as to apportionment of rent, 671. 
 
 no abatement of rent after entire destruction, 677. 
 
 attornment to stranger after judgment of eviction, 705.
 
 886 iXDEx. 
 
 KEY, 
 
 [References are to Sections.1 
 
 retained by tenant after eviction, 356. 
 
 delivery of, as symbol of possession, 427. 
 
 acceptance of by landlord as proof of surrender, 540, 548. 
 
 failure to return as evidence of holding over, 555. 
 
 KINDS OF TENANCY, 
 
 See Tenancy from Year to Year, Tenancy at "Will, Tenancy by Suf- 
 ferance, AND Tenancy from Month to Month. 
 
 L 
 
 LEASE, 
 
 written instrument as proof of tenancy, 11, 12. 
 
 distinguished from license, 37-45 (see License). 
 
 considered as a deed by ancient authors, 57. 
 
 in common parlance a leasehold estate, 57. 
 
 indentures and deeds poll, 57. 
 
 construction of indenture, 57. 
 
 deed poll abolished in Missouri, 57. 
 
 distinguished from other instruments, 58. 
 
 grant of fee, 58. 
 
 grant of easement, 58. 
 
 technical requirements of form, 59. 
 
 instrument in form of receipt, 59. 
 
 indorsement on back of title bond, 59. 
 
 grant of franchise not a lease, 59. 
 
 vote of town selectmen, 59. 
 
 agreement to pay bonus to landowner, 59. 
 
 date is not essential, 60. 
 
 deed takes effect from delivery, 60. 
 term commences from day of date, 60. 
 executed on Sunday, 61. 
 ratification of void lease, 61. 
 alteration of instrument, 62. 
 reservation of part of thing demised, 63. 
 thing specifically granted cannot be excepted, 63. 
 public roads and lots designated by number, 63. 
 failure of reason for making exception, 63. 
 stipulation for attorney's fee valid, 64. 
 
 Indiana statute against conditional fees, 64. 
 consideration for grant of lease, 65. 
 
 Illinois statute authorizing plea of want of consideration, 65. 
 construction to be declared by court, 66. 
 instrument to be construed as a whole, 67. 
 custom of country not admissible, 68. 
 inconsistent and contradictory clauses, 69. 
 weight of written and printed provisions, 69. 
 erasure of a printed clause, 69. 
 meaning of term "relet," 69a.
 
 INDEX. 887 
 
 [References are to Sections.l 
 LEASE — Continued. 
 
 instruments construed together, 69a. 
 reformation of lease, 70. 
 right of reformation lost by laches. 70. 
 when dispute is no longer between original parties, 70. 
 Execution and delivery, 71-83. 
 
 necessity for acknowledgment, 71, 72. 
 
 proof of signature of subscribing witness, 71. 
 
 doctrine in Ohio and Maryland, 72. 
 
 rights of third parties unaffected by unrecorded lease, 73. 
 
 seal unnecessary between parties, 74. 
 
 lease by corporation not under seal, 74. 
 
 Delaware statute requiring seal, 74. 
 
 signature of lessor necessary, 75. 
 
 leases drawn in duplicate, 75. 
 errors in signature, 76. 
 lessee need not sign, 77. 
 
 bound by acceptance of lease, 77. 
 indenture taking effect as deed poll for lack of lessee's signa- 
 ture, 78. 
 acceptance sufficient without occupation, 79. 
 presumption of acceptance, 79. 
 acceptance determined by jury, 79. 
 form of action on unsigned lease, 80. 
 executed by undisclosed principal, 81. 
 executed by corporations, 82. 
 delivery a question of intention, 83. 
 Parties to leases, 84-97. 
 in general, 84. 
 
 ownership in fee unnecessary, 84. 
 joint lease by owners in severalty, 84. 
 estoppels distinguished, 84. 
 person dispossessed cannot grant lease, 85. 
 what constitutes adverse holding, 85. 
 California code provision, 85. 
 
 one tenant in common cannot lease community land, 86. 
 leases by and to married women, 87. 
 
 separate property, 87. 
 
 Mississippi code provision, 87. 
 
 Maine act, 87. 
 
 Indiana statute, 87. 
 no lease of dower interest, 87. 
 right of husband to lease wife's real estate, 88. 
 leasehold estates of married women, 88. 
 Washington act as to community lands, 88. 
 guardian's right to lease, 89. 
 mode of procedure for guardian, 90. 
 lease limited to infancy of ward, 90. 
 trustees have general power to make, 91.
 
 8S8 INDEX. 
 
 [References are to Sections.l 
 
 LEASE — Continued. 
 
 duty of trustee in this respect, 91. 
 trustee for charitable use, 91. 
 infant lessee, 92. 
 executors and administrators, 93. 
 mortgagor and mortgagee, 94. 
 Infant lessor, 95. 
 Description of premises, 98-110. 
 necessity for, 98. 
 
 parol proof allowable to apply description, 98. 
 technical misdescriptions, 98. 
 location of boundaries by parties, 99. 
 insufficiency of description cured by possession, 99. 
 parol evidence to complete inadequate, 100. 
 what included in a, a matter of evidence, 101. 
 "furniture" includes what, 101. 
 lease of bulding eo nomine, 102. 
 
 rooms in tenement, 102. 
 designation of house by street number, 103. 
 easement passes as appurtenance when, 104. 
 rights in public streets pass as appurtenances, 105. 
 easement for light and air, 106. 
 what passes as "curtilage," 107. 
 use of outside walls for signs, 108. 
 
 protected in such use by equity, 108. 
 riparian boundaries, 109. 
 reservations by lessor, 110. 
 validity of reservation, 110. 
 Duration of term, 111-119. 
 
 for life, for years, or in perpetuity. 111. 
 limited by statute in Alabama, 111. 
 agricultural lands in New York, 111. 
 death of parties does not affect. 111. 
 term should be certain, 112. 
 determined by matter ex post facto, 112. 
 beginning at indefinite future time, 113. 
 contingent limitation of term, 114. 
 happening of contingency, 115. 
 term for life of tenant, 116. 
 errors in calculation, 117. 
 
 word "from" either exclusive or inclusive, 119. 
 Illegal leases, 120-124. 
 
 rent not recoverable on lease to aid conspiracy, 120. 
 
 landlord not responsible for illegal use by tenant, 120. 
 
 illegal user by sub-tenant, 120. 
 
 kinds of illegality, 121. 
 
 fixing knowledge on lessor, 121. 
 
 establishing defense of illegality, 121. 
 
 use of premises for purpose of prostitution, 122.
 
 INDEX. 889 
 
 [References are to Sections.} 
 LEASE— Continued. 
 
 rescission and defense of action for rent, 126. 
 premises used for gambling,123. 
 no estoppel to set up defense of illegality, 124. 
 Leases obtained by fraud, 125-129. 
 fraud may be shown by parol, 125. 
 distinction between forged instrument and fraud in inducement 
 
 125. 
 rescission and defense of action for rent, 126. 
 what constitutes laches, 126. 
 Missouri doctrine, 127. 
 defrauded lessee's election of remedies, 128. 
 prompt rescission required in Illinois, 128. 
 what constitutes fraud, 129. 
 misrepresenting legal effect, 129. 
 fraudulent alteration, 129. 
 Collateral parol agreement. 130-137. 
 
 presumption as to written instrument, 130. 
 compliance with statute of frauds, 131. 
 what agreements are collateral. 132, 133. 
 agreement to be performed before term begins, 133. 
 English rule, 134. 
 
 subsequent agreement reducing rent, 135. 
 sufficiency of consideration, 136. 
 execution of new lease, 137. 
 
 See also Agreements to Lease; Frauds, Statute of; Record- 
 ing Leases. 
 LESSEE, 
 
 need not sign lease, 77. 
 
 bound by acceptance of lease, 77. 
 
 indenture taking effect as deed poll for lack of signature by, 78. 
 
 mere acceptance sufficient without entry, 79. 
 
 married women, 88. 
 
 infant, 92. 
 
 right to assign leasehold, 431. 
 
 statutory provisions restricting right to assign, 432. 
 
 bound by express covenants after assignment, 447. 
 
 obligation based on privity of contract, 447. 
 
 released from implied covenants by assignment, 447, 452. 
 
 liability in covenant, 447. 
 
 executor bound after death of, 447. 
 
 discharge from express covenants when, 448. 
 
 agreements for, 448. 
 
 implied from what facts, 448. 
 
 lessor's consent to different use, 448. 
 right of action after assignment, 448. 
 obligation is that of surety for assignee, 449. 
 not discharged by lessor's laches in suing assignee, 449. 
 obligation unaffected by length of term after assignment, 450. 
 
 1
 
 890 IXDEX. 
 
 [References are to Sections.} 
 
 'LESSEE—Contimied. 
 
 can recover money paid in behalf of assignee, 451. 
 liability of assignee on express covenant, 451. 
 what constitutes express covenant to pay rent, 452 
 surety for, not discharged, 453. 
 
 waiver of covenant against assignment, 453. 
 effect of general assignment by, 461. 
 
 LESSOR, 
 
 must sign lease, 75. 
 
 instruments drawn ih duplicate, 75. 
 
 errors in signature by, 76. 
 
 need not own fee, 84. 
 
 must not be disseised, 85. 
 
 co-tenant, 86. 
 
 married woman, 87. 
 
 husband, 88. 
 
 guardian, 89. 
 
 trustee, 91. 
 
 executor or administrator, 93. 
 
 mortgagor and mortgagee. 94. 
 
 infant, 95. 
 
 right of, to assign lease or reversion, 421. 
 
 does not release lessee by accepting assignee, 447. 
 
 double remedy against lessee and assignee, 447. 
 
 effect of recovery from one, 448. 
 agreement to discharge lessee, 448. 
 
 implied from what circumstances, 448. 
 
 putting premises to new use, 448. 
 laches in suing assignee as discharge of lessee, 449. 
 liability of, on covenants after assignment, 454. 
 
 covenant to sell to lessee, 454. 
 no duty to relet abandoned premises, 539. 
 estoppel to deny power and capacity of, 683. 
 
 LIBERUM TENEMENTUM, 
 
 plea of, by landlord as defense for entering on tenant, 228, 558, 561. 
 
 LICENSE, 
 
 definition, 36. 
 
 need not be in writing, 36. 
 
 easements granted only by deed, 36. 
 
 license is revocable, indivisible, non-assignable, 37. 
 
 revoked by death of either party, 37. 
 
 when incident to a valid grant, 37. 
 
 executed license to cut standing timber, 38. 
 
 takes effect as lease when, 38. 
 conveyance of estate in land constitutes a lease, 39. 
 grant of right of way is an easement, 39. 
 legal possession essential for a tenancy, 40. 
 
 i 

 
 INDEX. 891 
 
 [References are to Sections.'\ 
 LICENSE— Continued, 
 
 wall advertisement a license, 40. 
 
 exclusive possession by tenant unnecessary, 40. 
 
 grant of right to cut ice, 40. 
 
 grant of mining rights, 41. 
 
 payment of consideration as test between lease and license, 42. 
 
 interrupted and restricted use a mere license, 43. 
 
 theater ticket, 44. 
 
 flowing of lands an easement, 45. ' 
 
 LIFE ESTATE, 
 
 created by grant without word "heirs," 116, 
 grant for term of several lives, 116. 
 interest ceases on death of life tenant, 116. 
 
 LIFE TENANT, 
 
 bound to pay taxes, 413. 
 
 failure by, to pay taxes constitutes waste, 637. 
 
 right to open and work mines, 638. 
 
 leases granted by, apportionment of rent under, 670. 
 
 purchase of encumbrance on estate by, 689. 
 
 LIGHT AND AIR, 
 
 interference with easement for, prevented by injunction, 106. 
 tenant's right to, 381. 
 
 interference with as breach of covenant of quiet enjoyment, 359. 
 artificial, for passageways, 619. 
 
 LIMITATION, STATUTE OF, 
 
 running of, after disavowal of tenancy, 695. 
 
 LODGER, 
 
 becomes a tenant when, 23, 24. 
 
 LOUISIANA, 
 
 recording leases, 163. 
 
 statute as to notice to quit, 292. 
 
 M 
 
 MAINE, 
 
 leasing by married women, 87. 
 statute as to yearly tenancies, 239. 
 statute as to notice to quit, 293. 
 
 MANURE, 
 
 does not belong to outgoing tenant, 573. 
 when made in course of husbandry, 573. 
 manufactured out of eel grass, 573. 
 Maine doctrine as to sale of, on execution, 573. 
 j . North Carolina rule, 573. 
 
 covenants as to manure, 573.
 
 892 INDEX. 
 
 [References are to Sections.'] 
 
 MARRIED WOMEN, 
 
 right to grant and accept leases, 87. 
 
 leasing of separate property belonging to, 87. 
 
 Mississippi code provision, 87. 
 
 Maine act, 87. 
 
 Indiana statute, 87. 
 
 dower interest incapable of being leased, 87. 
 
 leasehold estates of, pass to husband, 88. 
 
 holding over after divorce does not become tenant at sufferance, 225. 
 
 covenant not to sublet not broken by marriage, 468. 
 
 not bound by estoppel, 687. 
 
 MARYLAND, 
 
 acknowledgment of lease necessary, 72. 
 
 recording leases, 164. 
 
 statute as to notice to quit, 294. 
 
 MASSACHUSETTS, 
 
 statute as to rent recoverable from tenant at will, 189. 
 
 tenant at sufferance liable for use and occupation, 227. 
 
 statute as to tenancy at sufferance, 230. 
 
 doctrine as to yearly tenancies, 240. 
 
 statute as to notice to quit, 295. 
 
 forfeiture for non-payment of rent, 517. 
 
 doctrine as to implied warranty of fitness of furnished house, 578. 
 
 statute as to apportionment of rent, 671. 
 
 MECHANIC'S LIEN, 
 
 for improvements, 378. 
 holder of, not an assignee, 444. 
 purchaser at, sale not an assignee, 458. 
 entry to post notice of, 558. 
 
 MERGER 07 LEASE, 
 
 takes place on assignment to lessee, 428. 
 effect of mortgaging leasehold to lessor, 428. 
 legal interest necessary to constitute, 428. 
 undivided interests will merge when, 428. 
 sale on partition causes, when, 428. 
 effect of subtenancy on, 429. 
 liability of subtenant on covenants, 429. 
 English statutory provision, 429. 
 election to avoid, 429. 
 
 MEMORANDUM, 
 
 in writing sufficient to satisfy statute of frauds, 156. 
 officer's return sufficient, of assignment, 444. 
 
 MICHIGAN, 
 
 statute as to tenancy of sufferance, 230. 
 statute as to yearly tenancies, 241.
 
 I INDEX. 893 
 
 [References are to Sections.^ 
 MICHIGAN— Contimied. 
 
 statute as to notice to quit, 296. 
 
 forfeiture for non-payment of rent, 518. 
 
 rule as to implied warranty of fitness of premises, 576. 
 
 use and occupation maintainable on lease under seal, 652. 
 
 MINERAL LANDS, 
 
 forfeiture of lease of, 488. 
 
 MINNESOTA, 
 
 statute as to notice to quit, 297. 
 forfeiture for non-payment of rent, 519. 
 statutory liability for defects in premises, 581. 
 abatement of rent under statute, 681. 
 
 MINES, 
 
 grant of right to work, operates as lease,* 41. 
 right of tenant to open and work mines, 637. 
 
 MISREPRESENTATION, 
 
 as to fitness of premises a ground for liability, 580. 
 I ' as basis for recoupment, 674. 
 
 MISSISSIPPI, 
 J provision as to leases by married women, 87. 
 
 I statute as to notice to quit, 298. 
 
 statutory duty of lessor to repair, 393. 
 
 forfeiture for non-payment of rent, 520. 
 
 attornment to stranger after judgment of eviction, 705. 
 
 MISSOURI, 
 
 leases by deed poll abolished, 57. 
 
 defense of fraud triable by jury, 127. 
 
 statute as to yearly tenancies, 242. 
 
 statute on notice to quit, 299. 
 
 statute against assignment, 432. 
 
 forfeiture for non-payment of rent, 521. 
 
 doctrine as to assignment of leasehold by way of mortgage, 458. 
 
 purchase of tax title by tenant, 691. 
 
 attornment to purchaser at foreclosure, 709. 
 
 MONTANA, 
 
 statute as to notice to quit, 300. 
 
 MONTH TO MONTH TENANCY, 
 
 See Tenancy from Month to Month. 
 
 MORTGAGE, 
 
 or contract for letting, 26. 
 
 foreclosure of, on leasehold an assignment, 444. 
 
 of leasehold equivalent to assignment, 458. 
 
 foreclosure of, may be shown to defeat landlord's title, 703.
 
 894 INDEX. 
 
 [References are to Sections.^ 
 MORTGAGEE, 
 
 in possession not a tenant of mortgagor, 27. 
 
 right to lease premises, 94. 
 
 entitled to emblements against lessee of mortgagor, 572. 
 
 as tenant bound by estoppel, 693. 
 
 of leasehold, right to remove fixtures, 723. 
 
 MORTGAGOR, 
 
 in possession is not a tenant, 25. 
 
 right to lease premises, 94. 
 
 becomes tenant at sufferance when, 223. 
 
 lease by, gives no right to emblements, 572. 
 
 N 
 NEBRASKA, 
 
 notice of intention of forfeit necessary, 485. 
 
 forfeiture for non-payment of rent, 522. 
 
 doctrine as to liability for rent after destruction, 678. 
 
 NECESSARIES, 
 
 room for infant lessee classed among when, 96. 
 
 NEGLIGENCE, 
 
 of tenant a question for jury, 394. 
 contributory, by tenant, 594. 
 intervening criminal act, 596. 
 unsafe repairs, 596. 
 
 by agent or independent contractor, 597. 
 landlord's duty as to passageways, 614, 615. 
 persons to whom duty extends, 617, 618. 
 only responsible for reasonable care, 619. 
 negligent repairs, 622. 
 of janitor employed by landlord, 623. 
 duty of tenant to use due care, 624. 
 
 NEVADA, 
 
 statute as to yearly tenancies, 243. 
 statute as to notice to quit, 301. 
 
 NEW HAMPSHIRE, 
 
 doctrine as to crop rents, 55. 
 
 statute as to tenancies from year to year, 244. 
 
 statute as to notice to quit, 302. 
 
 forfeiture for non-payment of rent, 523. 
 
 NEW JERSEY, 
 
 recording leases, 163. 
 statute as to notice to quit, 303. 
 forfeiture for non-payment of rent, 524. 
 rule as to emblements, 569. 
 abatement of rent under statute, 681.
 
 I 
 
 INDEX. 895 
 
 {References are to Sections.l 
 NEW MEXICO, 
 
 follows English law as to statute of frauds, 150. 
 
 NEW YORK, 
 
 right to bring summary process dependent on existence of ten- 
 ancy, 19. 
 rule as to emblements, 32. 
 
 agricultural lands leased for twelve years. 111. 
 tenancy at sufferance, 229. 
 statute as to yearly tenancies, 245. 
 statute as to notice to quit, 304. 
 receiver vested with title to leasehold, 443. 
 doctrine as to assignment by way of mortgage, 458. 
 forfeiture for non-payment of rent, 625. 
 statute against implication of covenants, 351. 
 rule of liability of assignees of part of leasehold, 669. 
 statute as to apportionment of rent, 6671. 
 abatement of rent under statute, 681. 
 
 NORTH CAROLINA, 
 
 statute as to cropping contracts, 56. 
 statute as to notice to quit, 305. 
 forfeiture for non-payment of rent, 526. 
 statute as to division of crops, 656. 
 
 NORTH DAKOTA, 
 
 statute as to notice to quit, 306. 
 
 statutory liability of landlord to repair, 407. 
 
 forfeiture for non-payment of rent, 527. 
 
 NOTICE TO QUIT, 
 
 nature of doctrine, 251. 
 
 necessity for notice, 251. 
 
 common-law rule, 251. 
 
 length of notice in United States, 252. 
 
 distinction based on origin of tenancy, 252. 
 
 length of notice from monthly tenant, 253. 
 
 length of notice from weekly tenant, 253. 
 
 as affected by terms of letting, 253. ' 
 
 written notice unnecessary at common law, 254. 
 
 rights of tenant at sufferance to notice, 254. 
 
 no notice to terminate lease for time certain, 255. 
 
 same rule at end of extension, 255. 
 
 no notice at end of term provided for by void agreement, 256. 
 
 when no relation of landlord and tenant exists, 257. 
 
 after disclaimer by tenant, 257. 
 
 mere licencee not entitled, 257. 
 no substitute for statutory notice, 258. 
 waiver of notice by landlord, 258. 
 rights and duties as to notice mutual, 259. 
 contrary rule by statute in Kansas, 259.
 
 896 ixDEx. 
 
 [References are to Sections.'i 
 NOTICE TO QUIT — Continued. 
 Sufficiency of notice, 260-271. 
 
 must point to time when the term ends, 260. 
 
 demand for immediate possession insufficient, 260. 
 
 time for quitting must be on rent day. 261. 
 
 sufficient to name day corresponding to day of letting, 261, 
 
 precise time of expiration, 261. 
 
 no particular form required, 262. 
 
 description must identify premises, 262. 
 
 slight inaccuracies not fatal, 262. 
 
 notice addressed to tenant in possession, 263. 
 
 formal insufficiency waived by repudiation, 264. 
 ^ authority of agent to give notice, 265. 
 y^ who may give notice after assignment, 266. 
 
 notice binding on undertenants, 266. 
 - notice should be absolute, 267. fv, ji 
 
 proposals for change in rent, etc., 267. '"' i 
 
 Sunday contract, 267. 
 
 notice by parol sufficient at common law, 268. 
 
 notices to and from joint owners, 269. 
 
 requirements for notice may be waived, 270. 
 
 mere agreement to pay rent in advance not a waiver, 270. 
 
 enforcement of notice, 271. 
 
 rights acquired under notice may be waived, 271. 
 Service of notice, 272-276. 
 
 personal service unnecessary, 272. 
 
 delivering copy to person on premises, 272. 
 
 rule in England, 273. 
 
 delivering copy to agent off premises, 273. 
 
 mailing notice to tenant, 274. 
 
 posting notice in public places, 275. 
 
 proof of service, 276. 
 Statutory provisions, 277-317. 
 
 Alaska, 277. 
 
 Arizona, 278. 
 
 Arkansas, 279. 
 
 California, 280. 
 
 Colorado. 281. 
 
 Connecticut, 282. 
 
 Delaware, 283. 
 
 District of Columbia, 284. 
 
 Georgia, 285. 
 
 Idaho, 286. 
 
 Illinois, 287. 
 
 Indiana. 288. 
 
 Iowa, 289. 
 
 Kansas, 290. 
 
 Kentucky, 291. 
 
 Louisiana, 292.
 
 INDEX. 897 
 
 [References are to Sections.^ 
 NOTICE TO QVIT— Continued. 
 Maine, 293. 
 Maryland, 294. 
 Massachusetts, 295. 
 Michigan, 296. 
 Minnesota, 297. 
 Mississippi, 298. 
 Missouri, 299. 
 Montana, 300. 
 Nevada, 301. 
 New Hampshire, 302. 
 New Jersey, 303. 
 New York, 304. 
 North Carolina, 305. 
 North Dakota, 306. 
 Ohio, 307. 
 Oregon, 308. 
 
 Oklahoma Territory, 309. 
 Pennsylvania, 310. 
 Rhode Island, 311. 
 South Carolina, 312. 
 South Dakota, 313. 
 Virginia, 314. 
 Washington, 315. 
 West Virginia, 316. 
 Wisconsin, 317. 
 
 NUISANCE ON ADJOINING PREMISES, 
 as eviction, 360. 
 
 NUISANCE ON LEASED PREMISES, 
 
 primary liability for rests on occupier, 599. 
 
 "occupier" defined, 599. 
 
 landlord liable when, 599. 
 
 statement of general rule, 599. 
 
 effect of technical outstanding title, 599. 
 
 injuries on abutting sidewalks, 600. 
 
 defective scuttle or coal hole, 600. 
 general supervision a basis of liability, 600. 
 injuries from falling articles, 601. 
 
 capstone, window-blind, awning, 601. 
 falling snow and ice, 602. 
 
 general supervision retained by lessor, 602. 
 landlord and tenant both responsible when, 603. 
 necessity for request to abate nuisance, 604. 
 lessor is not liable when, 605. 
 improper use does not make lessor liable, 606. 
 lessor is liable when, 607. 
 injuries on public wharves, 608. 
 Jones L. & T.— 32
 
 898 INDEX. 
 
 [References are to Sections.] 
 
 NUISANCE ON LEASED PREMISES— Continued. 
 collapse of building, 609. 
 statutory nuisances, 610. 
 no criminal liability on lessor, 610. 
 what constitutes a reletting of premises, 611. 
 
 OCCUPIER, 
 
 defined, 599. 
 
 OHIO, 
 
 acknowledgment of lease necessary, 72. 
 
 testamentary law as to permanent leaseholds, 171. 
 
 rule as to notice affected by origin of yearly tenancy, 252. 
 
 statutory provision as to notice to quit, 307. 
 
 right of assignee to sue for rent, 658. 
 
 abatement of rent under statute, 681. 
 
 OKLAHOMA, 
 
 statute as to yearly tenancies, 246. 
 statute as to notice to quit, 309. 
 forfeiture for non-payment of rent, 529. 
 
 ORDINANCE, 
 
 forbidding wooden buildings, 399. 
 
 OREGON, 
 
 statute as to notice to quit, 308. 
 forfeiture for non-payment of rent, 529. 
 
 P 
 
 PAROL AGREEMENTS, 
 
 See Agreements Collateeal to Lease. 
 
 PAROL EVIDENCE, 
 
 not admissible to vary written lease, 130. 
 to show lease was an assignment, 132. 
 
 PAROL LEASE, 
 
 not absolutely void, 148. 
 
 exception of, for short term from statute of frauds, 148. 
 
 requirements as to value of rent reserved, 149. 
 
 extent of validity of, for short term, 153. 
 
 doctrine of South Carolina and Maryland, 153. 
 
 duration of term of, 154. 
 
 renewal agreement as part of, 154. 
 
 whether void only as to excess, 155. 
 
 ratification, 156. 
 
 parol agreement to lease distinguished from, 162. 
 
 tenancy at will created by entry and occupation under, 180.
 
 INDEX. 899 
 
 i 
 
 [References are to Sections.} 
 PAROL I.EASE— Continued. 
 
 governs terms of holding, 199. 
 
 occupant liable for rent reserved in, 199. 
 
 action to recover rent on, use and occupation, 200. 
 
 effective to give term definite end, 217. 
 
 can be assigned by parol, 441. 
 
 PARTIES TO LEASES, 
 
 general question of authority and capacity, 84. 
 
 ownership in fee unnecessary, 84. 
 
 joint lease by owners in severalty, 84. 
 
 estoppels distinguished, 84. 
 
 persons disseised and dispossessed, 85. 
 
 what constitutes adverse holding, 85. 
 
 California code provision, 85. 
 
 tenant in common, 86. 
 
 partners, 86. 
 
 married women, 87. 
 
 separte property, 87. 
 Mississippi code provision, 87. 
 Maine act, 87. 
 Indiana statute, 87. 
 holder of dower or curtesy, 87. 
 husband, 88. 
 community lands, 88. 
 guardians, 89, 90. 
 trustees, 91. 
 infants, 92, 95, 96. 
 executors and administrators, 93. 
 mortgagor and mortgagee, 94. 
 
 PARTNERS, 
 
 authority to lease partnership land, 86. 
 execution of covenants by, 320. 
 
 PART PERFORMANCE, 
 
 renders parol lease valid, 159. 
 
 distinction between law and equity, 159. 
 
 what constitutes, 159. 
 
 acts must refer to agreement, 160. 
 
 delivery of possession, 160. 
 
 making valuable improvements, 160. 
 
 part payment, 160. 
 
 Alabama statute, 161. 
 
 of assignment, 151, 441. 
 
 PASSAGEWAYS, 
 
 duty of landlord as to common, in tenement, 614, 615. 
 defective carpeting in, 621.
 
 900 INDEX. 
 
 • 
 
 [References are to Sections.'\ 
 PENNSYLVANIA, 
 
 statute as to notice to quit, 310. 
 forfeiture for non-payment of rent, 530. 
 
 PERPETUITIES, 
 
 rule against, puts no limits on lease, 111. 
 
 PERSONAL INJURIES, 
 
 from defects in leased premises, 576. 
 
 assumption of risk, 576. 
 
 rule of caveat emptor applies when, 579. 
 
 fraud as a basis of liability, 580. 
 
 concealed defects not discoverable on examination, 581. 
 
 Minnesota statute, 581. 
 
 landlord's duty to learn of defects, 582. 
 
 duty to warn againft infection, 584. 
 
 rights of guests of the tenant, 585. 
 
 Georgia statute, 587. 
 
 PERSONAL PROPERTY, 
 
 letting of, for a term, 10. 
 
 joint lease of real and personal property, 10. 
 
 apportionment of rent in case of destruction, 10, 669. 
 
 POSSESSION OF LEASED PREMISES, 
 
 transfer of, does not change agreement into lease, 146. 
 
 valid as evidence showing actual demise, 146. 
 
 shows waiver of formal lease, 146. 
 
 covenant of assignor to deliver, 427. 
 
 covenant to deliver, not apportioned, 460. 
 
 duty of tenant to restore at end of term, 554. 
 
 covenants to deliver up possession, 554. 
 
 duty to remove sub-tenants, 554. 
 
 retained by agreement for short time after end of term, 555. 
 
 does not become adverse, 555. 
 what constitutes continued occupation, 555. 
 duty to return keys, 555. 
 
 effect of leaving improvements on premises, 555. 
 
 failure to pay for improvements does not justify continued posses- 
 sion, 555. 
 continuing to hold possession as mortgagee, 555. 
 landlord's right to regain by force, 556. 
 forcible entry defined, 557. 
 civil liability of landlord for use of force, 558. 
 trespass for assault and battery against landlord. 559. 
 forcible invasion of tenants legal possession, 560. 
 statutory remedy exclusive one in some states, 361. 
 Actions relative to possession. 640-647. 
 
 actual or constructive possession necessary to support trespass, 640 
 trespass on the case without possession, 641. 
 right of action as between landlord and tenant, 642.
 
 INDEX. 901 
 
 [References are to Sections.l 
 POSSESSION OF LEASED PREMISES— Continued. 
 taking on eminent domain, 643. 
 
 extent of reversioner's interest to appear in pleading, 644. 
 injury to growing crop, 645. 
 tenants at will and by sufferance, 646. 
 trespass by landlord against tenant, 647. 
 by tenant against landlord, 647. 
 
 POSTING, 
 
 notice to quit in public places, 275. 
 
 POWER OF ATTORNEY, 
 
 to confess judgment for rent, 664. 
 
 PROSTITUTION, 
 
 leasing premises for purpose of, 122. 
 
 a statutory offense in Illinois, 122. 
 
 liability of guardian, 122. 
 
 use of adjoining tenement for purpose of, 360. 
 
 PUBLIC ENEMIES, 
 
 liability for rent after destruction by 675, 678. 
 
 PURCHASER IN POSSESSION, 
 is not a tenant, 29. 
 remedies of vendor, 29. 
 entry under parol contract to purchase, 29. 
 
 under contract absolutely void, 29. 
 right to possession similar to that of tenant at will, 30. 
 relation of parties after default in contract, 30. 
 tenant buying premises ceases to be tenant, 31. 
 assignment by vendor creates no new tenancy, 31. 
 vendee in possession entitled to emblements, 32. 
 vendor continuing in possession is not tenant, 33. 
 character of occupation determined by condition subsequent, 34. 
 proof of change in relationship, 35. 
 becomes tenant at sufferance after default, 224. 
 
 Q 
 
 QUIET ENJOYMENT, 
 
 covenants for, see Covenants. 
 
 R 
 "RAILROAD PURPOSES," 
 
 means public purposes, 114. 
 
 RATIFICATION, 
 
 of agreement reducing rent, 135. 
 of lease by agent, 157.
 
 902 INDEX. 
 
 {References are to Sections. I 
 RECEIVER, 
 
 in possession of leased premises not an assignee, 443. 
 estoppel to deny title of, 683. 
 
 RECORDING LEASES, 
 
 statutory provisions, 163. 
 
 New Jersey rule, 163. 
 
 Louisiana doctrine, 163. 
 
 unrecorded lease not valid except as to excess, 163. 
 
 requirement of possession under unrecorded lease, 163. 
 
 lease of growing trees, 163. 
 
 validity of unrecorded instruments, 164. 
 
 good between parties and purchasers with notice, 164. 
 
 Maryland rule, 164. 
 
 transfer of possession as a substitute, 164. 
 
 place of record, 165. 
 
 record of sub-lease, 166. 
 
 computing length of term, 167. 
 
 recording assignment, 438, 456. 
 
 RECOUPMENT, 
 
 See Set-off and Recoupment. 
 
 REFORMATION, 
 
 of lease, allowed when, 70. 
 loss of right by laches, 70. 
 third persons affected with knowledge, 70. 
 
 "RELET," 
 
 meaning of term defined, 69a. 
 
 what constitutes reletting in periodical tenancy, 611. 
 
 RENEWAL OF LEASE, 
 
 a valid and usual privilege, 336. 
 
 lease for one year continued from year to year, 336. 
 
 distinction between renewal and extension, 337. 
 
 necessity for new lease, 338. 
 
 renewal notice required before end of original term, 339. 
 
 no notice necessary in case of extension, 340. 
 
 compliance with provisions as to notice, 340, 342. 
 
 effect of holding over, 340. 
 
 payment of rent as evidence of extension, 340. 
 
 right of lessor to call for election, 341. 
 
 effect of statement of intention by tenant, 341. 
 
 sufficiency of terms of covenant, 343. 
 
 perpetual renewal not ordinarily implied, 343. 
 
 not applicable to subdivisions of leasehold, 344. 
 
 parties bound and parties entitled, 345. 
 
 fixing rent in renewal lease by arbitration, 346. 
 
 conditional covenant to renew, 347. 
 
 happening of contingency, 348.
 
 INDEX. 903 
 
 [References are to Sections.'} 
 RENEWAL OF LEASE— Con^inwed. 
 
 assignment of right to renew, 431. 
 
 effect of, on right to remove fixtures, 718. 
 
 right of removal under agreement not lost by, 720, 721. 
 
 RENT, 
 
 reservation of not essential to tenancy, 6. 
 payment of, as proof of tenancy, 12. 
 recoverable from tenant at will after sale, 189. 
 when due under year to year tenancy, 195. 
 occupant under invalid lease liable for, 199. 
 form of action is use and occupation, 200. 
 acceptance of, implies assent to holding over, 204. 
 change in amount on holding over, 213. 
 penalty of double rent, 214. 
 Non-payment of rent as ground for forfeiture, 502-505. 
 special provision necessary at common law, 502. 
 sufficiency of distress on premises, 502. 
 necessity for a demand, 503. 
 time and place of demand, 503. 
 amount to be demanded, 503. 
 no technical form for demand, 503. 
 
 demand need not precede action for use and occupation, 503. 
 sufficiency of demand by assignee, 503. 
 express stipulation dispensing with demand, 504. 
 what constitutes such a stipulation, 504. 
 damages from trespass by landlord not a set-off, 505. 
 payment of rent in labor or materials, 505. 
 Statutory provisions for forfeiture on non-payment. 
 Arizona, 506. 
 Arkansas, 507. 
 California, 508. 
 Colorado, 509. 
 Connecticut, 510. 
 Florida, 511. 
 Georgia, 512. 
 Illinois, 513. 
 
 Indiana, 514. " 
 
 Iowa, 515. 
 Kansas, 516 
 Massachusetts, 517. 
 Michigan, 518. 
 Minnesota, 519. 
 Mississippi, 520. 
 Missouri, 521. 
 Nebraska, 522. 
 New Hampshire, 523. 
 New Jersey, 524. 
 New York, 525.
 
 904 INDEX. 
 
 [References are to Sections.} 
 RENT — Continued. 
 
 North Carolina, 526. 
 
 North Dakota, 527. 
 ' Oklahoma, 529. 
 
 Oregon, 528. 
 
 Pennsylvania, 530. 
 
 Rhode Island, 531. 
 
 South Carolina, 532. 
 
 Vermont, 533. 
 
 Virginia, 534. 
 
 West Virginia, 535. 
 
 "Wisconsin, 536. 
 
 Wyoming, 537. 
 Nature of rent, 648-649. 
 
 rent defined, 648. 
 
 kinds of rent, 648. 
 
 fee farm rent, 649. 
 
 condition for forfeiture for non-payment of rent not repugnant to 
 grant, 649. 
 Actions to recover rent, 650-666. 
 
 remedy of distress, 650. 
 
 debt for rent maintainable when, 650. 
 
 debt for reasonable value, 650. 
 
 origin of indebitatus assumpsit for use and occupation, 650. 
 ., nature of action, 651. 
 
 trespass for mesne, profits, 651, 653. 
 
 use and occupation will not lie for a tortious entry, 651. 
 
 action for money had and received lies against trespasser in cer- 
 tain cases, 651. 
 
 void lease proper to show value of rent, 651. 
 
 use and occupation limited to agreements not under seal, 652. 
 
 contrary rule in Michigan, 652. 
 
 relation of landlord and tenant necessary to support use and occu- 
 pation, 654. 
 
 implication of tenancy from circumstances may be rebutted, 655. 
 
 what is sufficient to rebut implication, 655. 
 
 cestui que trust cannot maintain use and occupation, 655. 
 
 recovery of crop rent by action at law, 656. 
 
 crops belong to year when they are harvested, 656. 
 
 North Carolina statute as to division, 656. 
 '-. liability of tenant in common to use and occupation, 657. 
 
 \ indebitatus assumpsit in place of account, 657. 
 
 right of tenant in common to sue for rent, 657. 
 
 who are entitled to sue for rent, 658. 
 
 Ohio doctrine, 658. 
 
 liability of sub-tenant for rent, 659. 
 
 rights and liabilities of undisclosed principal, 660. 
 
 Illinois statute as to form of action, 660. 
 
 no debt arises till time for paying rent, 661.
 
 INDEX. 905 
 
 [References are to Sections.} 
 RENT — Continued. 
 
 special assumpsit on express agreement, 661. 
 
 entry necessary to sustain use and occupation, 661. 
 
 rent not due till end of term, 661. 
 
 agreements as to time for payment construed, 661. 
 
 rent payable on a holiday, 661. 
 
 tenant has entire day to pay rent, 661. 
 
 contracts of suretyship for rent, 662. 
 
 no tenancy between surety and lessor, 662. 
 
 discharge of surety by laches, 662. 
 
 extent of surety's obligation, 662. 
 
 acceptance of services in lieu of money, 663. 
 
 of crop rent in lieu of cash rent, 663. 
 erroneous and conflicting reversations of rent, 663. 
 agreements for reducing rent, 663. 
 power of attorney to confess judgment for rent, 664. 
 
 when premises are put to illegal use, 664. 
 defenses against actions for rent, 665. 
 Illinois statute as to want of consideration, 665. 
 Recovery of interest on rent, 666. 
 not included in distress, 666. 
 Virginia doctrine, 666. 
 statutes in Illinois and Kentucky, 666. 
 rents and profits due mortgagor bear interest when, 666. 
 Apportionment of rent, 667-671. 
 general rule, 667. 
 
 no redress for lessor ending tenancy before rent day, 667. 
 tenancy ended by entry of mortgagee, 667. 
 tenancy at will ended by transfer, 667. 
 apportionment is for benefit of owners of rent, 667. 
 on sale of part of reversion, 668. 
 on death of lessor, 668. 
 
 wrong doer cannot claim benefit of apportionment, 668. 
 transfer of undivided interest, 668. 
 transferee may sue in covenant, 668. 
 jury the proper tribunal to make, 668. 
 transfer by lessee as occasion for, 669. 
 surrender of part by lessee, 669. 
 eviction by title paramount, 669. 
 
 value not quantity the basis for apportionment, 669. 
 possessory right not actual possession the basis, 669. 
 lease covering land and chattels, 669. 
 past due rent never apportioned, 670. 
 
 not discharged by quitclaim deed, 670. 
 obligation to pay rent not apportioned, 670. 
 leases granted by life tenant, 670. 
 California statute against double liability, 670. 
 notice to tenant of transfer, 670. 
 
 South Dakota statute as to mortgage foreclosure, 670. 
 statutory provisions as to apportionment, 671.
 
 906 INDEX. 
 
 [References are to Sections.'] 
 RENT — Continued. 
 
 Set-oft and recoupment, 672-674. 
 
 cost of repairs to be paid for by landlord, 672. 
 
 measure of damage for failure to repair, 672. 
 
 California statute as to repairs, 672. 
 
 for failure to build according to specifications, 672. 
 
 right to abandon not co-extensive with recoupment, 673. 
 
 election to treat covenants as independent, 673. 
 
 waiver of right to insist on repairs, 673. 
 
 recoupment distinguished from set-off, 673. 
 
 misrepresentation as a basis for recoupment, 674. 
 
 landlord not an insurer, 674. 
 Abatement of rent, 675-681. 
 
 destruction by fire no ground for, 675. 
 
 origin and basis of rule, 675. 
 
 effect of seal, 675. 
 
 injury by tempest and flood, 675. 
 
 failure of water supply, 675. 
 
 acts of landlord after destruction, 675. 
 
 destruction prior to commencement of term, 675. 
 
 application of insurance money after fire, 676. 
 Kansas doctrine as to, 676. 
 
 lessor's building covenant not revived by destruction, 676. 
 
 destruction of entire subject matter abates rent, 677. 
 
 when interest in land passes to lessee, 677. 
 
 voluntary advance payment of rent, 677. 
 
 exception to general rule not recognized in Kentucky, 677. 
 
 Nebraska doctrine as to continued liability for rent after destruc- 
 tion, 678. 
 
 destruction by public enemies, 678. 
 
 agreements for abatement in case of destruction, 679. 
 
 lease not terminated by, 679. 
 
 trifling injuries disregarded, 679. 
 
 election to disregard injuries, 679. 
 
 what constitutes a "casualty," 679. 
 
 lessor's covenant to repair does not abate rent, 679. 
 
 taking on eminent domain, 680. 
 ■ tearing down dangerous building, 680. 
 
 statutory modifications of common-law rule, 681. 
 
 REPAIRS, 
 
 Covenant hy lessee to make. 391-403. 
 
 regarded as usual covenant in lease, 391. 
 sufficiency of oral undertaking, 391. 
 extent of liability under, 391. 
 sub-tenant's covenant to repair, 391. 
 binds lessee to repair inevitable accident, 392. 
 
 basis of such liability, 392, 393. 
 express qualfications of liability, 392.
 
 INDEX. 90 T 
 
 [References are to Sections.^ 
 REPAIRS— Continued. 
 
 liability affected by form of covenant, 392, 393. 
 
 agreement to deliver in good order and condition, 393. 
 
 Mississippi code provison, 393. 
 
 liability affected by nature of property, 393. 
 
 "unavoidable casualty" defined, 394. 
 
 negligence of tenant a question for jury, 394. 
 
 "damage by the elements" defined, 395. 
 
 "external parts" of premises defined, 396. 
 
 covenant refers to condition of premises at time of letting, 397, 402. 
 
 lessee to rebuild after condemnation by authorities, 397. 
 
 extent of repairs required by covenant, 397. 
 
 "habitable" defined, 397. 
 
 "necessary repairs" defined, 397. 
 
 lessee has no claim on insurance, 398. 
 
 effect of ordinance forbidding wooden buildings, 399. 
 
 duty to maintain machinery, 400. 
 
 painting, papering and decorating, 401. 
 
 right of action for failure to return in good condition accrues when, 
 403. 
 
 what constitutes a continuing covenant to repair, 403. 
 Obligation on landlord to make repairs, 404-410, 588-589. 
 
 express contract necessary to create obligation, 404, 588. 
 
 what amounts to an agreement to repair, 404, 589. 
 
 effect of voluntary repairs by landlord, 404, 590. 
 
 insurance money need not be used in rebuilding, 405. 
 
 right of landlord to enter after destruction, 405. 
 
 California statute as to repairs, 406. 
 
 statutory provisions in the Dakotas, 407. 
 
 extent of obligation under covenant to repair, 408. 
 under covenant to make outside repairs, 408. 
 
 notice to landlord of lack of repair, 409. 
 when lack of repair is visible, 409. 
 
 remedies of tenant for breach of covenant to repair, 410. 
 
 measure of damages for breach, 410. 
 Liability imposed by lessor's agreement to repair, 588-595. 
 
 no duty to repair in absence of agreement, 588. 
 
 clear language necessary to create obligation, 589. 
 
 extent of statutory duty to repair fire escapes, 589. 
 
 payment by landlord for repairs made by tenant, 590. 
 
 voluntary promise to pay for repairs, 590. 
 
 no duty to repair inevitable accidents, 590. 
 
 exempting lessee does not bind lessor, 591. 
 
 landlord's liability rests on breach of contract, 592. 
 
 measure of damages recoverable, 592. 
 
 damages for personal injuries are too remote, 592. 
 
 no recovery in tort allowed, 592. 
 
 notice to landlord of need of repairs, 593. 
 
 tenant's contributory negligence protects landlord, 594. 
 
 rights conferred on third persons by such agreement, 595.
 
 908 INDEX. 
 
 [References are to Sections.l 
 REPAIRS — Continued. 
 
 Liability for unsafe repairs, 596-598. 
 when made by landlord in person, 596. 
 
 by agent or independent contractor, 597. 
 non-performance of voluntary promise to repair, 598. 
 See also. Defects in Demised Premises, and Fitness. 
 
 REVERSION, 
 
 transferred by deed, 424. 
 
 rent excepted from grant of, 425. 
 
 injury to, entitles lessor to sue for damages, 641, 644. 
 
 year to year tenancy not affected by transfer of, 195. 
 
 month to month tenancy not affected by transfer of, 219. 
 
 RESERVATIONS AND EXCEPTIONS, 
 in leases, 63. 
 
 thing specifically granted cannot be excepted, 63. 
 public roads and lots designated by number, 63. 
 validity of reservation, 110. 
 takes effect as condition, subsequent, 110. 
 
 RHODE ISLAND, 
 
 tenancy by sufferance how created, 225. 
 doctrine as to tenancy by sufferance, 230, 
 doctrine as to yearly tenancies, 247. 
 statute as to notice to quit, 311. 
 forfeiture for non-payment of rent, 531. 
 
 RIGHT OF WAY, 
 
 constitutes an easement, 39. 
 covenant for, 319. 
 
 RIPARIAN BOUNDARIES, 
 
 of leasehold property, 109. 
 right to accretions, 109. 
 
 ROYALTY, 
 
 covenant for, 319. 
 
 RUNNING OF COVENANTS, 
 
 See Covenants. 
 
 S 
 SALE OF LEASED PREMISES, 
 
 under provision in lease, 114, 387. 
 time for exercise of privilege, 387. 
 right to end term by sale, 388. 
 right of lessee to quit on sale, 388. 
 bona fides required, 388. 
 ordinary effect of sale, 427.
 
 INDEX. 909 
 
 [References are to Sections.] 
 SALE OF LEASED PREMISES— Continued. 
 
 on execution operates as assignment, 422, 444, 703. 
 
 return of officer, sufficient memorandum, 444. 
 
 passes subject to equities, 444. 
 on foreclosure of mortgage, 444. 
 decree of sale on lien judgment, 444. 
 chancery decree for sale, 444. 
 on credit, not an assignable right, 454. 
 to lessee ends condition against subletting, 464. 
 effect of sale of leasehold on execution, 422, 703. 
 on execution not a breach of condition not to assign, 466. 
 of leasehold on partition, 428. 
 decree of, on lien judgment, 444. 
 
 covenant as to, of premises valid and enforceable, 387. 
 nature of such obligation, 387. 
 time of cunsummation of sale, 387. 
 right to end term by sale, 388. 
 
 of lessee to quit on sale, 388. 
 bona fide sale required, 388. 
 
 covenant to sell to lessee passes to assignee, 454. 
 See also Assignment. 
 SALT WELLS, 
 
 no implied covenant as to capacity, 574. 
 
 SCENIC RAILWAY, 
 
 removable as fixture, 725. 
 
 SEAL, 
 
 necessary on lease when, 74. 
 Delaware statute, 74. 
 by joint covenantors, 320. 
 necessary on assignment when, 439. 
 
 SERVANT, 
 
 occupying master's house is not tenant, 20. 
 
 relation of parties after termination of employment, 20. 
 
 may be tenant of his master, 21. 
 
 as tenant at will on contingency, 170. 
 
 SERVICES, 
 
 of laborer paid for by part of crop, 49. 
 accepted in place of money rent, 663. 
 
 SET-OFF AND RECOUPMENT, 
 cost of repairs, 672. 
 
 measure of damage for failure to repair, 672. 
 California statute as to repairs, 672. 
 for failure to build according to specifications, 672. 
 right to abandon not co-extensive with recoupment, 673. 
 waiver of right to insist on repairs, 673.
 
 910 INDEX. 
 
 [References are to Sections.] 
 SET-OFF AND RECOUPMENT— Con^inMCcZ. 
 
 recoupment distinguished from set-off, 673. 
 misrepresentation as a basis for recoupment, 674. 
 landlord not an insurer, 674. 
 
 SHARES, LETTING ON, 
 
 See Crop Rents and Cropping Contracts. 
 
 SIDEWALKS, 
 
 liability for injuries occurring on, 600-602. 
 
 SIGNATURE, 
 
 of lessor to lease necessary, 75. 
 
 leases drawn in duplicate, 75. 
 
 errors in signature, 76. 
 
 of lessee not necessary, 77. 
 
 indenture taking effect as deed poll for lack of, by lessee, 78. 
 
 form of action on unsigned lease, 80. 
 
 SIGNS, 
 
 on a wall not a leasing, 40. 
 
 lessee's right to place, on outside wall, 108. 
 
 placing, on walls not a subletting, 468. 
 
 SNOW AND ICE, 
 
 falling on traveller along highway, 602. 
 on roof of tenement, 603. 
 on steps of tenement, 619. 
 
 SOUTH CAROLINA, 
 
 statute as to yearly tenancies, 248. 
 statute as to notice to quit, 312. 
 forfeiture for non-payment of rent, 532. 
 
 SOUTH DAKOTA, 
 
 statute as to notice to quit, 313. 
 
 ctatutory liability of landlord to repair, 407. 
 
 statute as to rent after mortgage sale, 670. 
 
 SPECIFIC PERFORMANCE, 
 
 See Equity. 
 SUBJECT MATTER, 
 
 capable of demise, 9. 
 
 right to fish and to cut ice, 9. 
 
 timber grass and berries, 9. 
 
 franchise and public rights, 9. 
 
 right to flow land, 9. 
 
 where chattels are let for a term, 10. 
 
 no lease of dower or curtesy, 87. 
 
 destruction of, abates rent, 677.
 
 INDEX. 911 
 
 [References are to Sections.} 
 SUB-LEASE, 
 
 record of, 166. 
 
 effective to give notice when, 166. 
 
 how affected by assignment of reversion, 425. 
 
 effect of merger on, 429. 
 
 SUB-LETTING, 
 
 not ground for entry by landlord, 431. 
 for full term an assignment, 446. 
 
 taking effect as both under lease and assignment, 446. 
 sub-tenant bound to know terms of original lease, 456. 
 Conditions against sub-letting, 464-473. 
 not usual covenant in lease, 464. 
 construction of such provisions, 464. 
 enforced by injunction, 464. 
 sale to lessee terminates, 464. 
 entry upon sub-tenant, 464. 
 value of term depends upon assignability, 464. 
 not broken by transfer by operation of law, 466. 
 
 sale on execution, 466. 
 
 bankruptcy and insolvency, 466. 
 
 general assignments, 466. 
 not a breach of covenant not to assign, 467. 
 what language forbids sub-letting, 467. 
 what constitutes a sub-letting, 468. 
 grant of license net a breach, 468. 
 advertising sign, 468. 
 
 provision not "to sub-let the whole or assign," 468. 
 joint lessee as assignee, 468. 
 servant in charge, 468. 
 
 marriage of lessee as breach of covenant, 468. 
 change in business relations, 469. 
 rule in Dumpor's case, 470, 471. 
 special license to assign or sub-let, 472. 
 estoppel in favor of sub-tenant, 473. 
 mere 'tolerance of a sub-letting, 473. 
 not a continuing act of forfeiture, 501. 
 
 SUB-TENANTS, 
 
 covenant by, to repair, 391. 
 
 effect of merger upon, 429. r 
 
 liability of, on covenants in lease, 429. 
 
 English statute covering such cases, 429. 
 
 distinguished from assignee, 445. 
 
 insolvency of original lessee, 445. 
 
 entry upon, for breach of condition against sub-letting, 464. 
 
 acts of, as ground for forfeiture, 489. 
 
 statutory forfeiture for illegal acts by, 489. 
 
 duty of lessee to remove, at end of term, 554. 
 
 liability of, for rent, 659.
 
 912 INDEX. 
 
 [References are to Sections.'] 
 SUFFERANCE, 
 
 See Tenancy by Sufferance, 
 
 SUMMARY PROCESS, 
 
 distinguished from forcible entry and detainer, 562. 
 title to property cannot be litigated in, 563. 
 form of judgment in, 566. 
 
 SUNDAY, 
 
 leases executed on, 61. 
 
 validity of renewal contract made on, 267. 
 
 rent falling due on Sunday, 661. 
 
 SURETY, 
 
 lessee becomes, for assignee, 449. 
 
 for lessee not discharged by assignment, 453. 
 
 contract of, does not run with land, 333. 
 
 contract of, must be based on consideration, 662. 
 
 no tenancy between surety and lessor, 662. 
 
 discharge of surety by laches, 662. 
 
 extent of surety's obligation, 662. 
 
 SURRENDER, 
 
 is yielding up of particular estate to estate in reversion, 538. 
 
 writing required by statute of frauds, 538. 
 
 seal not required for valid surrender, 538. 
 
 oral agreement executed is valid, 538. 
 
 term created by parol may be surrendered by parol, 538. 
 
 by express words or implied from conduct, 539. 
 
 mere abandonment not a surrender, 539. 
 
 duty of landlord to relet after abandonment, 539. 
 
 effected by executed agreement, 540. 
 
 landlord's resumption of abandoned premises, 540. 
 
 what constitutes transfer of possession, 540. 
 
 cancellation and destruction of lease, 541. 
 
 substitution of a new lease, 542. 
 
 parol lease substituted for written one, 542. 
 
 acceptance of rent directly from under-tenant, 543. 
 
 second lease to another person, 543. 
 
 agreement may be implied, 543. 
 
 reversionary interest as subject-matter of surrender, 544. 
 
 effect of change in terms of existing lease, 545. 
 
 leases in futuro not capable of surrender, 546. 
 
 contrary doctrine in Illinois, 546. 
 
 abandonment and reentry by tenant, 547. 
 
 landlord's right to gather abandoned crops, 547. 
 
 effect of death of tenant, 547. 
 
 acceptance of key by landlord, 548. 
 
 repairs on abandoned premises by landlord, 548, 549. 
 
 reletting by landlord after abandonment, 549. 
 
 notice of continued liability to tenant, 550.
 
 INDEX. 913 
 
 [References are to Sections.'i 
 SURRENDER— Continued. 
 
 evidence of intention to hold tenant, 550. 
 consent of tenant to reletting implied, 551. 
 right of sub-tenant not divested bj'^ surrender, 552. 
 jury to decide about agreements for surrender, 553. 
 
 T 
 
 TAXES AND ASSESSMENTS, 
 
 covenant to pay, runs with land, 411. 
 
 lessee paying may recover from assignee, 411. 
 
 enforcement of covenant by grantee of reversion, 411. 
 
 form of the covenant, 411. 
 
 not paid as part of rent, 411. 
 
 liability for, in absence of agreement, 412. 
 
 new buildings erected by tenant, 412. 
 
 exempt property, 412. 
 
 statutory duty of tenant to pay, 413. 
 
 recovery back of money so paid, 413. 
 
 how affected by special agreement, 413. 
 
 responsibility of life tenant, 413. 
 
 water rate not a tax or assessment, 414. 
 
 landlord not bound to pay water rates, 414. 
 
 implication of agreement to pay water rate, 414. 
 
 tenant's covenant to pay water rate, 414. 
 
 construction of covenant to pay taxes, 415. 
 
 special assessments included when, 415. 
 
 license fee for lessor not payable by lessee, 415. 
 
 apportionment of taxes, 416. 
 
 levy distinguished from assessment, 417. 
 
 liability for taxes not payable till end of term, 417. 
 
 taxable year defined, 317. 
 
 invalid taxes not included in covenant, 318. 
 
 convenantor not released by destruction of premises, 419. 
 
 what constitutes a breach of such covenant, 420. 
 
 prior payment by lessor before suit not necessary, 420. 
 
 necessity for demand, 420. 
 
 damages for breach of covenant, 420. 
 
 assignee's liability for, 455. 
 
 life tenant's failure to pay, constitutes waste, 637. 
 
 purchase of premises sold for, 690, 703. 
 
 attornment to holder of tax title, 709. 
 
 Arkansas doctrine, 690. 
 
 Kansas and Missouri doctrine, 690. 
 
 TEMPEST, 
 
 injury by does not abate rent, 675. 
 
 Jones L. & T.— 33
 
 914 INDEX, 
 
 [References are to Sections."] 
 TENANCY, 
 
 created by contract, 1. 
 
 definitions, 1. 
 
 occupation must be adverse, 2. 
 
 adverse holding changed to tenancy, 2. 
 
 injunction bond creating quasi tenancy, 2. 
 
 lawful occupancy raises what inference of, 3. 
 
 rebuttal of such inference, 3. 
 
 trustee holding land not a tenant, 3. 
 
 absence of intention to create, rebuts presumption, 3. 
 
 award of arbitrators cannot create, 4. 
 
 formal letting, hiring or leasing not necessary, 5. 
 
 present letting or agreement for future lease, 5. 
 
 reservation of rent not essential, 6. 
 
 validity of landlord's title not material, 7. 
 
 taking on eminent domain does not create, 7. 
 
 fiduciary relation of tenant, 8. 
 Proof of tenancy, 11-14. 
 
 a question of fact to be proved by parol, 11. 
 
 production of lease as proof, 11. 
 
 payment of rent proves what, 12. 
 
 occupation under executed lease presumed, 12. 
 
 entry and occupation of lessee, 13. 
 
 province of court and jury, 14. 
 
 drawing inferences from agreed facts, 14. 
 Similar contractual relations, 18-28. 
 
 contract for use of land does not necessarily create tenancy, 18. 
 
 intention of parties is the test, 18. 
 
 statutory remedies dependent on technical relation of landlord and 
 tenant, 19. 
 
 remedy allowed against tenant at sufferance, 19. 
 
 servant occupying master's house does not become his tenant, 20. 
 
 relation of parties after termination of employment, 20. 
 
 servant may be tenant to his master, 21. 
 
 right of servant to emblements, 21. 
 
 independent contractor becomes tenant when, 22. 
 
 mill operating contracts create tenancy when, 22. 
 
 lodger does not become a tenant, 23. 
 
 distinction between lodger and tenant, 23. 
 
 contract for lodging not within statute of frauds, 24. 
 : separate rooms in house may be demised, 24, 
 
 i mortgagor in possession is not a tenant, 25. 
 
 entry by mortgagee on tenant of mortgagor, 25, 
 
 contracts for mortgage or for letting, 26. 
 
 suit to redeem rebuts presumption of tenancy, 26. 
 
 mortgagee in possession not a tenant of mortgagor, 27. 
 
 tenancy between joint owners, 28. 
 Purchaser in possession, 29-35. 
 
 occupant under contract of purchase not a tenant, 29.
 
 INDEX. 916 
 
 [References are to Sections.] 
 TENANCY— Oon^iwMed. 
 
 remedies of vendor, 29. 
 
 entry under parol contract to purchase, 29. 
 
 rule contra under absolutely void contract, 29. 
 
 purchaser's right to possession similar to that of tenant at will, 30. 
 
 relation of parties after default in contract, 30. 
 
 agreement regulating purchaser's right of possession, 30. 
 
 tenant buying premises ceases to be tenant, 31. 
 
 assignment by vendor creates no new tenancy, 31. 
 
 relations between parties changed by agreement, 31. 
 
 vendee in possession entitled to emblements, 3^ 
 
 vendor continuing in possession is not a tenant, 33. 
 
 character of occupation determined by condition subsequent, 34. 
 
 proof of change in relationship, 35. 
 Tenancy or grant of license, 37-45. (See License.) 
 Tenancy or cropping contract, 46-56. (See Cropping Contracts.) 
 
 TENANCY FROM MONTH TO MONTH, 
 
 rests on payment of monthly rent, 215. 
 
 real unit is rent period, 215. 
 
 periodic tenancy for quarterly period, 215. 
 
 created by express agreement, 216. 
 
 holding over after occupation at monthly rent, 216, 
 
 Oregon doctrine, 216. 
 
 occupation for indefinite time at monthly rent, 216. 
 
 termination rendered definite by void lease, 217. 
 
 yearly rent payable in monthly installments, 218. 
 
 change from monthly to quarterly periods, 218. 
 
 not a continuing right of possession, 219. 
 
 effect of transfering reversion, 219. 
 
 TENANCY BY SUFFERANCE, 
 
 general nature of holding, 220. 
 arises on holding over, 19, 221. 
 lessee of life tenant after end of life estate, 221, 
 
 widow having dower interest, 221. 
 easement taken by power of eminent domain, 221. 
 no prior contract of letting necessary, 222. 
 mortgagor holding after under mortgage, 223. 
 purchaser in possession making default, 224. 
 none after occupation vested by operation of law, 225. 
 exceptional doctrine in Rhode Island, 225. 
 holding over by divorced wife, 225. 
 rights of tenant at sufferance, 226. 
 liability for loss by fire, 226. 
 recovery for taking on eminent domain, 226. 
 use and occupation not allowed, 227. 
 Massachusetts statute, 227. 
 notice to tenant necessary, 227. 
 right of entry by landlord, 228.
 
 916 INDEX. 
 
 IReferences are to 8ections.'\ 
 TENANCY BY SUFFERANCE— Con^inMed. 
 tenant cannot maintain trespass, 228. 
 plea of liberum tenementum, 228. 
 technical meaning discarded by some courts, 229. 
 Wisconsin doctrine, 229. 
 New York statute, 229. 
 use of term in statutes, 230. 
 Michigan statute, 230. 
 Massachusetts statute, 230. 
 Rhode Island statute, 230. 
 
 TENANCY AT WILL, 
 
 determined by a conditional limitation, 114. 
 
 created by grant and contract, 174. 
 
 how distinguished from other holdings, 174. 
 
 occupation for indefinite time without rent, 175. 
 
 parol gift of land, 176. 
 
 landowner must consent to holding, 177. 
 
 purchaser in possession not tenant at will, 178. 
 
 implication from permissive occupation, 178. 
 
 grantor continuing in possession, 178. 
 
 confers a complete and unqualified possession, 179. 
 
 entry and occupation under void parol lease, 180. 
 
 unauthorized lease not binding on true owner, 181. 
 
 effect of exceeding authority, 181. 
 
 determination of holding, 182. 
 
 no notice required at common law, 182. 
 
 some act necessary to end holding, 183. 
 
 death of parties, 184. 
 
 destruction of subject matter, 184. 
 
 question of reasonable notice, 185. 
 
 alienation by either party defeats estate, 186. 
 
 mode and purpose of transfer immaterial, 187. 
 
 notice of transfer necessary, 188. 
 
 recovery of rent after alienation, 189. 
 
 Massachusetts statute, 189. 
 
 estate at will not capable of bargain and sale, 190. 
 
 sale voidable only at election of landlord, 190. 
 
 effect of involuntary transfer of the same, 190. 
 
 notice to landlord of sale, 191. 
 
 expression "tenant at will from year to year," 194. 
 
 statutory modifications, 196. 
 
 changed to yearly holding by payment of rent, 197. 
 
 TENANCY FOR YEARS, 
 
 a chattel interest, 168. 
 
 must be definite in duration, 168. 
 
 may be for less than a year, 168. 
 
 whether term is for years or from year to year, 168, 169. 
 
 a mere estate at will if of uncertain duration, 170.
 
 INDEX. 917 
 
 [Refere^ices are to Sections.l 
 TENANCY FOR YEARS— Continued. 
 occupation of servant, 170. 
 chattel real passes to administrator, 171. 
 no lien for purchase money, 171. 
 nature of estate unaffected by length of term, 171. 
 Ohio doctrine, 171. 
 sale of leasehold on execution, 172. 
 no curtesy or dower in leasehold, 173. 
 no right to emblements, 569. 
 local custom changing rule, 569. 
 
 TENANCY FROM YEAR TO YEAR, 
 rests on judicial authority, 192. 
 origin and development of such holdings, 192. 
 doctrine applicable to conditions in this country, 193. 
 expression "tenant at will from year to year," 194. 
 compared to estate for years, 195. 
 effect of conveyance of reversion, 195. 
 rent falls due at end of year, 195. 
 statutory modifications, 196. 
 
 payment of rent converts estate at will into yearly holding, 197. 
 rent referable to aliquot part of year, 197. 
 effect of payment in gross, 197. 
 receipt of rent may be explained, 198. 
 invalid parol lease governs terms of holding, 199. 
 time when yearly holding begins, 199. 
 rent recovered in action of use and occupation, 200. 
 created by holding over, 201. 
 landlord's right to charge tenant, 201. 
 new tenancy not under original lease, 201. 
 holding over is on same terms, 202. 
 conditional limitation applicable, 202. 
 tenant cannot create different tenancy, 202. 
 landlord's option to charge tenant for another year, 203. 
 acceptance of rent implies assent, 204. 
 overt acts not necessary to indicate assent, 205. 
 effect of dissent on part of tenant, 206. 
 rule in England, 207. 
 
 followed in Massachusetts and Missouri, 207. 
 surrender rendered impossible by act of God, 208. 
 length of holding over necessary to charge tenant, 209. 
 where landlord is responsible for holding over, 209. 
 Kentucky statute, 209. 
 
 rebutting presumption of year to year tenancy, 210. 
 invalid new agreement, 210. 
 covenant in lease as to holding over, 211. 
 express renewal of lease, 212. 
 treaty for new lease, 212. 
 effect of changes in amount of rent, 213.
 
 918 INDEX. 
 
 [References are to Sections.l 
 TENANCY FROM YEAR TO YEAR— Continued. 
 provision for penalty of double rent, 214. 
 holding on yearly tenancy may be assigned, 431. 
 Statutory provisions, 231-250. 
 California, 231. 
 Connecticut, 232. 
 District of Columbia, 233. 
 Delaware, 234. 
 Georgia, 235. 
 Indiana, 236. 
 Iowa, 237. 
 Kentucky, 238. 
 Maine, 239. 
 Massachusetts, 240. 
 Michigan, 241. 
 Missouri, 242. 
 Nevada, 243. 
 New Hampshire, 244. 
 New York, 245. 
 Oklahoma Territory, 246. 
 Rhode Island, 247. 
 South Carolina, 248. 
 Washington, 249. 
 Wyoming, 250. 
 yearly tenant not entitled to emblements, 569. 
 
 TENANTS IN COMMON, 
 
 when tenancy exists between, 28. 
 one cannot lease community land, 86. 
 right to change amount of rent, 86. 
 partnership between tenants in common, 86. 
 notice to quit by joint owners, 269. 
 liability to co-tenant for rent, 657. 
 indebitatus assumpsit allowed when, 657. 
 right of one, to sue for rent, 657. 
 
 TENEMENT HOUSES, 
 
 no obligation to keep roof in repair, 612. 
 application of maxim sic utere tuo, 612. 
 landlord's duty as to side walls, 613. 
 
 common passageways, 614, 615. 
 
 water flowing from a closet, 616. 
 to whom duty extends, 617, 618. 
 reasonable care only required, 619. 
 place where accident occurs, 620. 
 defective carpeting of passageways, 621. 
 liability for negligent repairs, 622. 
 
 negligence of janitor, 623. 
 tenant's duty to use due care, 624.
 
 INDEX. 919 
 
 IReferences are to Sections^ 
 TERM, 
 
 may be for years, for life, or for perpetual duration, 111. 
 
 rule against perpetuities. 111. 
 
 limitations in Alabama, 111. 
 
 agricultural land in New York, 111. 
 
 not ended by death, 111. 
 
 of lease for years must be certain, 112. 
 
 determined by matter ex post facto, 112. 
 
 commencing at an indefinite future time, 113. 
 
 contingent limitation of, 114. 
 
 or of tenancy at will, 114. 
 
 happening of contingency, 115. 
 
 condition and contingent limitation distinguished, 115. 
 
 "life of building" defined, 115. 
 
 for tenant's life, 116. 
 
 for several lives, 116. 
 
 errors in calculating length of term, 117. 
 
 separate parcels covered by a single lease, 118. 
 
 word "from" either exclusive or inclusive, 119. 
 
 statute of frauds sets what limits on, 154. 
 
 recording statutes apply to what length of, 167. 
 
 TERMINATION OF LEASES, 
 
 introductory, 474. 
 
 destruction of subject matter, 474. 
 
 "express stipulation" terminating lease, 474. 
 Repudiation of relation by tenant, 474a-481. 
 
 hostile claim of title, 474a. 
 
 acts of disclaimer open, continued, and notorious, 474a. 
 
 suflBciency of disclaimer, 475. 
 
 attornment or delivery of possession to stranger, 476. 
 
 conveyance by tenant a disclaimer when, 477. 
 
 forfeiture by matter of record, 478. 
 
 forfeiture by deed recorded, 479. 
 
 payment of rent as act of disclaimer, 480. 
 
 mere words never work forfeiture, 481. 
 By forfeiture for breach of condition. See Forfeiture. 
 For non-payment of rent. See Rent. 
 By surrender. See Surrender. 
 By merger. See Merger. 
 
 Duty to restore possession. See Restoration of Possession. 
 Right to emblements. See Emblements. 
 
 See also Notice to Quit. 
 TEXAS, 
 
 statute against assignment, 434. 
 
 THEATER, 
 
 ticket a mere license, 44.
 
 920 INDEX. 
 
 {.References are to Sections.'] 
 THIRD PARTIES, RIGHT OF ACTION AGAINST, 
 
 lessor out of possession cannot bring trespass, 640. 
 
 tenant may maintain trespass, 640. 
 
 action of case for injury to freehold maintainable, 641. 
 
 what constitutes injury to the freehold, 641. 
 
 owner of local right entitled to action for invasion of it, 642. 
 
 action to abate nuisance, 642. 
 
 "party aggrieved" in statute defined, 642. 
 
 eminent domain, 643. 
 
 necessary proof of injury to reversion, 644. 
 
 landlord cannot sue for injury to crop, 645. 
 
 tenants at will and at sufferance, 646. 
 
 TIMBER, 
 
 See Trees and Timber. 
 TIME, 
 
 date not essential to lease, 60. 
 
 date is prima facie, for commencement, 60. 
 
 verbal leases date from possession, 60. 
 
 Sunday lease, 61. 
 
 for which leases may be granted. 111. 
 
 rule against perpetuities, 111. 
 
 limitation in Alabama, 111. 
 
 agricultural lands in New York, 111. 
 
 term for years must have definite, to end, 112. 
 
 determined by matter ex post facto, 112. 
 
 leases from an indefinite future, 113. 
 
 what constitutes lease for life, 116. 
 
 lease for term of several lives, 116. 
 
 errors in calculation of, 117. 
 
 word "from" either exclusive or inclusive, 119. 
 
 computation of, in respect to validity of parol lease, 154. 
 
 computation of, in respect to recording statutes, 167. 
 
 for payment of rent, 661. 
 
 not due till end of term, 661. 
 
 computation of time, 661. 
 
 rent falling due on Sundaj', 661. 
 
 TITLE, 
 
 warranty of, by lessee on assignment, 435. 
 cannot be litigated in summary process, 563. 
 eviction by, paramount, 669. 
 purchase of adverse, by tenant, 689. 
 
 tax title, 690. 
 lessor need give no evidence of, 701. 
 showing transfer or expiration of landlord's title, 703. 
 
 tax or execution sale, 703. 
 
 foreclosure of mortgage, 703. 
 tenant may buy, at execution sale, 704. 
 attornment to holder of tax title, 709. 
 
 See Denial of Title.
 
 INDEX. 931 
 
 [References are to Sections,'] 
 TOLLS, 
 
 from use of dam, what included, 663. 
 
 TREES AND TIMBER, 
 
 parol license to cut and carry away, 38. 
 lease of growing, muet be recorded, 163. 
 cutting of, constitutes waste when, 635. 
 clearing wild land for cultivation, 636. 
 
 TRESPASS, ACTION OF, 
 
 by tenant at sufferance, 228. 
 
 when maintainable by assignee, 458. 
 
 lies against tenant at will guilty of waste, 488. 
 
 plea of molliter manus imposuit, 556, 558. 
 
 against landlord regaining possession by force, 558. 
 
 for assault and battery against landlord, 559. 
 
 Massachusetts doctrine, 559. 
 
 statutory modifications, 561. 
 
 for injury to way-going crop, 569. 
 
 right of, depends on possession, 640. 
 
 tenant may maintain, 640. 
 
 landlord out of possession cannot maintain, 640. 
 
 landlord cannot bring, for injury to crops, 645. 
 
 lessor at will may maintain, 646. 
 
 lessor cannot maintain, against lessee, 647. 
 
 for mesne profits by lessor against lessee, 651, 653. 
 
 TRESPASS ON THE CASE, 
 
 by landlord lies for injury to freehold, 641, 642. 
 
 TRUSTEE, 
 
 holding land not a tenant, 3. 
 
 authority of, to grant lease, 91. 
 
 for charitable use, 91. 
 
 cestui que trust of lessee must claim through trustee, 566. 
 
 must bring action for rent, 655. 
 
 estoppel to deny title, 693. 
 
 TURPENTINE, 
 
 from trees is personal property, 567. 
 
 U 
 UNDISCLOSED PRINCIPAL, 
 
 See Agent. 
 
 UNSANITARY CONDITION, 
 
 of premises renders landlord liable when, 583. 
 duty to warn against infection, 584. 
 
 USE AND OCCUPATION, 
 
 for occupation under void agreement, 200. 
 tenant at sufferance not liable in action of, 227.
 
 922 INDEX. 
 
 [References are to SectionsJl 
 USE AND OCCUPATION— ConiinMed. 
 Massachusetts statute, 227. 
 notice to tenant necessary, 227. 
 no prior demand for rent necessary, 503. 
 old action of debt for rent, 650. 
 early statutes, 650. 
 
 distinctions between actions of debt and covenant, 650. 
 not an action ex delicto, 651. 
 
 distinguished from trespass for mesne profits, 651. 
 will not lie for a trespass, 651. 
 waiver of the tort allowed when, 651. 
 amount of recovery is fair value of property, 651. 
 will not lie on lease under seal, 652. 
 contrary rule in Michigan, 652. 
 trespass for mesne profits described, 653. 
 
 relation of landlord and tenant necessary to support use and occu- 
 pation, 654. 
 action not maintainable against adverse holder, 654. 
 implied agreement only necessary, 654. 
 implication of tenancy rebutted how, 655. 
 allegation of title in plaintiff not necessary, 655. 
 suits to recover crop rents, 656. 
 liability of tenants in common to one another, 657. 
 
 indebitatus assumpsit allowed when, 657. 
 right of assignee to maintain action, 658. 
 
 attornment unnecessary, 658. 
 lessor cannot sue after assignment, 658. 
 cropping contract enforced by administrator, 658. 
 sub-tenant not subject to action, 659. 
 agent with undisclosed principal, 660. 
 
 lease under seal, 660. 
 
 Illinois statute, 660. 
 no legal debt till rent is payable, 661. 
 rent not due till end of term except by agreement, 661. 
 •computation of time for payment, 661. 
 rent falling due on Sunday, 661. 
 defenses to actions for rent, 665. (See Abatement.) 
 recovery of interest, 666. 
 
 USE OF DEMISED PREMISES, 
 
 validity of restriction on, 382. 
 
 right as to, in absence of restriction, 382. 
 
 what constitutes a covenant for restrictive use, 283. 
 
 effect of recitals in lease, 383. 
 
 what constitutes a breach of covenant, 383. 
 
 prohibited use enjoined when, 384. 
 
 covenant must be express in that case, 384. 
 
 injunction to stay waste, 384. 
 
 covenant for personal occupation not a usual one, 385.
 
 INDEX. 923 
 
 ^References are to Sections.'i 
 USE OF DEMISED FRBMISES— Continued. 
 
 domestic relations of tenant a collateral matter, 385. 
 agreement not "to make or suffer" an unlawful use, 386. 
 conditions against assignment, 431. 
 
 V 
 
 VERMONT, 
 
 forfeiture for non-payment of rent, 533. 
 
 VIRGINIA, 
 
 statute as to notice to quit, 314. 
 forfeiture for non-payment of rent, 534. 
 rent abated under statute, 681. 
 
 VOID AND VOIDABLE, 
 distinguished, 495. 
 
 W 
 WAIVER, 
 
 of ground for forfeiture, what constitutes, 496. 
 
 none of conditional limitation, 496. 
 
 acceptance of rent constitutes when, 497. 
 
 suit for entire amount of rent, 497. 
 
 distraining for rent, 497. 
 
 effect of mere demand for rent, 497. 
 
 lessor must have knowledge of ground for forfeiture, 497. 
 
 past due rent receivable without waiver, 498. 
 
 allowing default to continue not a waiver, 499. 
 
 permission to hold over constitutes, 499. 
 
 none of continuing covenant, 500. 
 
 what constitutes a continuing covenant, 500. 
 
 of estoppel to deny title, 694. 
 
 WARRANTY, 
 
 of title on assignment of leasehold, 435, 436. 
 
 of fitness not implied, 574. 
 
 oral evidence of, inadmissible, 575. 
 
 of dwelling house, 576. 
 
 of rooms in tenement, 576. 
 
 of furnished apartments, 577, 578. 
 
 WASHINGTON, 
 
 statute as to yearly tenancies, 249. 
 statute as to notice to quit, 315. 
 
 WASTE, 
 
 definition, 625. 
 
 distinction between voluntary and permissive, 625. 
 
 history of remedy for, 625. 
 
 mode of procedure to charge tenant for, 626. 
 
 writ of waste superceded by action of case, 626.
 
 924 INDEX. 
 
 [References are to Sections.'] 
 WASTE — Continued. 
 
 extent of liability for, by tenant at will, 627. 
 
 destruction by fire is permissive waste, 627. 
 
 liability for negligence is independent of agreement, 628. 
 
 extent of implied obligation on tenant, 628. 
 
 acceptance of rent not a waiver, 628. 
 
 tenantable repairs only are required, 629. 
 
 what constitutes such repairs, 629. 
 
 express covenant becomes measure of liability, 630. 
 
 action of tort allowed when, 630. 
 covenants raised on demise of farming land, 631. 
 change in tillage as constituting waste, 631. 
 action of account allowed on lease on shares, 631. 
 construction of covenant "to improve" farm, 631. 
 alterations in buildings constitute waste, 632. 
 
 authorized alterations, 632. 
 
 rule in the United States, 633. 
 motive immaterial in determining what constitutes waste, 634. 
 cutting timber constitutes waste when, 635. 
 clearing wild land for cultivation, 636. 
 right of life tenant to open mines, 637. 
 failure of life tenant to pay taxes constitutes, 637. 
 injunction against threatened waste, 638. 
 forfeiture of place wasted, 639. 
 
 WATER, 
 
 lease of surplus, in canal, 352a. 
 
 rate not a tax or assessment, 414. 
 
 landlord not bound to pay, 414. 
 
 covenant by tenant to pay, construed, 414. 
 
 implication of agreement by landlord to pay, 414. 
 
 injuries caused by flowing, 616. 
 
 WEAR AND TEAR, 
 
 tenant not liable for ordinary, 629. 
 
 WEST VIRGINIA, 
 
 statute as to notice to quit. 316. 
 forfeiture for non-payment of rent, 535. 
 
 WHARVES, 
 
 agreements for payment for, 374. 
 liability for injuries received on, 608, 609. 
 
 WISCONSIN, 
 
 summary process only lies against tenant, 19. 
 doctrine as to tenancy at sufferance, 229. 
 statute as to notice to quit, 317. 
 statute against implication of covenants, 351. 
 forfeiture for non-payment of rent, 536. 
 forfeiture for waste, 639.
 
 INDEX. 925 
 
 [References are to Sections.'] 
 
 WOOD, 
 
 drift, belongs to lessee, 567. 
 
 cutting of, constitutes waste when, 635. 
 
 clearing wild land for cultivation, 636. 
 
 WYOMING, 
 
 statute as to yearly tenancies, 250. 
 forfeiture for non-payment of rent, 537. 
 
 Y 
 YEAR TO YEAR TENANCY, 
 
 See Tenancy fkom Yeae to Yeab. 
 
 Whole number of pagres, 1011.
 
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