o %a3AlNn-3WV ^OF-CAIIFO/?^ ^tiF-CAllFO/?^ > r ■ ' .^ _ ^10 ^ ^ "^/^a; ^^^UIBRARYac. '^Aavaaii# ^tjijonvsoa^ ■^/sa^AiNrt-iwv' >&Aava8n# ^lOSAlJCElfj;> '^/^a3AiNa-3v\v o '^/^a3AlNa-3WV -^^tllBRARYQ^ -^>^tlIBRAtlYac>, ^^Aavaan-^^ ,5MEIINIVER% ^IC ^vw .5.\\EUNIVER%. ^^ ■< i iU ^ ^^^lllBRARYQr ^llIBRARYGc ,^WEUNIVERy/4 ^K ^.OF-CAIIFO/?^ .^.OFCAIIFO% ,^WEUNIVER% O ^'^^Abviian-^ ^i'iiaoNvsoi^ '^/sj!3AiNn]v\v^ .^WEUNIVERS"//, ^lOSANCElfX;^ ^^HIBRARY-O^ <;^HIBRARYQ^ o "^^/smm^^ .^•OFCAIIFO/?^ >^,.OFCALIF0% ^jo^ %ojnvojo^ ^\\EUNIVERS//, ■ . ^ o v^lOSANCElFX;* o %a3AlNn-3UV ^OFCAIIFO/?^ i4;OFCAllF0% ,^ME•UN1VERS•/A A>:lOSANCElfj> ^:lOSANCElfj^. ^OFCAllFOff^ ^OFCAlIFOff^ o pg ft />^ \ O ^ :lOSAfJCElfj>. A TREATISE ON THE LAW OF Landlord and Tenant By HERBERT THORNDIKE TIFFANY I ,■ 1 AUTHOR OF "THE LAW OF riE-\L PROPERTY;" LECTURER ON REAL PROPERTY IN THE UNIVERSITY OF MARYLAND IN TWO VOLUMES VOL. II CHICAGO CALLAGHAN AND COMPANY 1912 COPYRIGHT, 1910 BY HERBEiiT THOKNDIKE TIFFANY T TABLE OF CONTENTS. CHAPTER I. THE NATURE OF THB^ RELATION. (For complete analysis see Vol. I.) CHAPTER II. THE CLASSES OF TENANCIES. (For complete analysis see Vol. I.) CHAPTER III. THE CREATION OF THE RBLATION-THB LEASE OR DEMISE. (For complete analysis see Vol. I.) CHAPTER IV. ^NANCY IN CON RELATION. (For complete analysis see Vol. I.) THE RELATION OP TENANCY IN CONNECTION WITH OTHER RELATION. iv TABLE OF CONTENTS. CHAPTER V. COVENANTS AND OTHER CONTRACTS. (For complete analysis see Vol. I.) CHAPTER VI. EXECUTORY CONTRACT FOR LEASE. (For complete analysis see Vol. L) CHAPTER VII. THE TITLE AND POSSESSION OP THE LESSOR. (For complete analysis see Vol. I.) CHAPTER VIII. COVENANTS FOR QUIET ENJOYMENT AND OF POWER TO DEMISE. (For complete analysis see Vol. I.) CHAPTER IX. THE LESSOR'S OBLIGATION TO GIVE POSSESSION. (For complete analysis see Vol, I.) TABLE OF, CONTENTS. CHAPTER X. PHYSICAL CONDITIONS— REPAIRS AND IMPROVEMENTS. (For complete analysis see Vol. I.) CHAPTER XI. MODE OF UTILIZATION OF PREMISES BY TENANT. (For complete analysis see Vol. I.) CHAPTER XII. EASEMENTS AND ANALOGOUS RIGHTS. (For complete analysis see Vol. I.) CHAPTER XIII. TAXES AND INSURANCE. (For complete analysis see Vol. I.) CHAPTER XIV. TRANSFER OF THE REVERSION. (For complete analysis see Vol. I.) vi TABLE OF CONTENTS. CHAPTER XV. TRANSFER OF THE LEASEHOLD. (For complete analysis see Vol. L) CHAPTER XVI. RENT. (For complete analysis see Vol. L) CHAPTER XVII. EVICTION. § 184. General considerations. 185. By landlord. a. Actual and constructive eviction. b. Intention of landlord. c. General character of landlord's acts. d. Tenant must relinquish possession. e. Total and partial eviction. f. Specific acts by landlord. (1) Forcible expulsion or exclusion. (2) Interference with ingress or egress. (3) Deprivation of rights appurtenant to leasehold. (4) Acts of omission. (5) Occupation by landlord on tenant's abandonment. (6) Subsequent lease or other conveyance. (7) Unauthorized demand for possession. (8) Injurious conditions on adjoining premises. (9) Threats and annoyances by landlord. (10) Interference with subtenant. (11) Making of repairs. (12) Withholding of license for business. g. Tenant's assent to landlord's acts, h. Effect of eviction on tenancy. i. Action for damages. TABLE OF CONTENTS. yii 186. By third person. a. Under title paramount. (1) Wliat constitutes title paramount. (2) Acts constituting eviction. (3) Effect of eviction. b. Wrongful acts of third persons. c. Acts of public authorities. CHAPTER XVIII. SURRENDER. I 187. Nature of surrender. 188. Parties to surrender. a. Persons who may make surrender. b. Persons to whom surrender may be made. 189. Express surrender. a. Necessity of writing. b. By cancellation of lease. c. Necessity of seal. d. Necessity of acceptance. e. Words of surrender. f. Transfer of possession. g. Surrender in futuro. h. Surrender for purpose of new lease. 190. Surrender by operation of law. a. General nature. b. Acceptance of new interest. (1) Acceptance of lease. (a) The general doctrine. (b) Intention of parties. (c) What constitutes new lease. (d) New lease to assignee of leasehold. (2) Acceptance of different class of interest. c. Transfer of possession to landlord. (1) The general doctrine. (2) Resumption by landlord of possession necessary. (3) What constitutes resumption of possession. (4) Reletting by landlord to another. (5) Relinquishment of possession on landlord's demand. viii TABLE OF CONTENTS. d. New lease to third person. § 191. ESect of surrender. a. As between the parties. b. As against third persons. CHAPTER XIX. FORFEITURE OF THE LEASEHOLD. 192. By disclaimer of tenancy. 193. Under statute. a. For breach of stipulation of lease. b. For illegal use of premises. c. On desertion of premises. d. For improper use of premises. 194. Under express condition subsequent. a. General considerations. b. Condition distinguished from covenant. c. Condition distinguished from limitation. d. Forfeiture dependent on landlord's election. e. Conditions against particular acts. (1) Nonpayment of rent. (2) Nonpayment of taxes. (3) Failure to repair, (4) Assignment and subletting. ' (5) Bankruptcy. (6) Use and care of the premises. (7) Abandonment of the premises. f. Demand of rent. (1) Necessity at common law. (2) Statutory modification of requirement. g. By whom forfeiture may be asserted. h. Against whom forfeiture may be asserted. i. Waiver of right to assert forfeiture. (1) Recognition of tenancy as still existent. (a) General considerations. (b) Acceptance of rent. (c) Assertion of claim for rent. (d) Action against tenant. (e) Notice to tenant. (f) Language recognizing tenancy. (g) Distress. TABLE OF CONTENTS. ix (2) Delay in assertion of forfeiture. (3) Acts inducing breach of condition. (4) Continuing and recurring breaclies. j. Assertion and enforcement of forfeiture. k. Effect of enforcement of forfeiture. 1. Relief against forfeiture. (1) General rule. (2) Fraud, mistake, accident and surprise. (3) Nonpayment of money. (4) Persons in favor of and against wtiom relief given. CHAPTER XX. NOTICE TO QUIT. § 195. General '■onsiderations. 196. Particular classes of tenancies. a. Tenancy for years. b. Tenancy at will. c. Periodic tenancies. d. Tenancy at sufferance. 197. Waiver or modification of requirement. 198. By and to wbom notice to be given. 199. Form and language of notice. 200. Date of termination of notice. 201. Computation of period of notice. 202. AVaiver of defects. 203. Service of notice. 204. Effect of giving of notice. 205. Withdrawal or waiver of notice. CHAPTER XXI. HOLDING OVER BY TENANT. 5 206. Duty to relinquish possession. 207. What constitutes holding over. 208. Rights of tenant wrongfully holding over. TABLE OF CONTENTS. § 209. Landlord's option as to new tenancy. a. The rule usually adopted. b. The theory of the rule. c. Facts justifying exercise of option. d. Facts excluding exercise of option. e. Character of new tenancy. 210. New tenancy by agreement. a. Agreement express or implied. b. Character of new tenancy. c. Terms of new tenancy. 211. Liability in use and occupation. 212. Liability as tort feasor. 213. Liability for double rent or value. a. After notice or demand by landlord. b. After notice by tenant. 214. Cotenant lessee holding over. 215. Proceeding to recover possession. 216. Forcible resumption of possession by landlord. a. General considerations. b. Liability for entry on the land. c. Liability for injury to the person. d. Liability for removal of chattels. 217. Rights of landlord after resuming possession. CHAPTER XXII. STIPULATIONS FOR RENEWAL OR EXTENSION. § 218. Renewal and extension distinguished. 219. Additional term as part of original term. 220. Sufficiency and construction of stipulation for renewal. 221. Stipulations for perpetual renewal. 222. Election by lessee to extend. a. Retention of possession. b. Requirement of express notice. 223. Election by lessee to renew — Notice to lessor. 224. Election by lessor. 225. Compliance by lessee with covenants and conditions. TABLE OF CONTENTS. xi 226. Form of renewal. 227. Terms of new tenancy —Applicability of former stipulations. 228. Appraisement to ascertain rent. 229. Qualified right to renewal or extension. 230. Persons to whom stipulations available. 231. Persons against whom stipulations available. 232. Covenant by sublessor to renew. 233. Breach of covenant to renew — Ptemedies. 234. Trusts arising from renewal. CHAPTER XXIII. FIXTURES. 235. General considerations. 236. Physical attachment. 237. Character of article. 238. Intention of the annexor. 239. Specific articles aa fixtures. 240. Removable fixtures. a. Trade fixtures. b. Domestic and ornamental fixtures. c. Agricultural fixtures. 241. Removable fixtures as realty or personalty. 242. Loss of tenant's rights of removal. a. End of term or relinquishment of possession. b. Tenancy of uncertain duration. c. Surrender or merger of leasehold. d. Forfeiture of leasehold. e. Eviction under title paramount. f. Delay in removal caused or acquiesced in by landlord. g. Acceptance of new lease by tenant. 243. Stipulations granting rights of removal. a. General considerations. b. Articles annexed with landlord's assent. c. Effect as rendering articles personalty. d. Validity in favor of and as against third persons. e. Loss of benefit of stipulation— Time for removal. xii TABLE OF CONTENTS. § 244. Stipulations restricting rights of removal. a. General considerations. b. Stipulations as to "fixtures." c. Stipulations as to "improvements." d. "Erections" and "additions." e. "Alterations." f. Stipulated improvements by tenant. S- Title to articles during term. 245. Custom affecting rights of removal. 246. Rights of removal as against person other than lessor. a. Purchaser subsequent to annexation. b. Person claiming under mortgage subsf^quent to annexation, c. Person claiming under mortgage prior to annexation. 247. Rights of removal by person other than lessee. 248. Remedies, CHAPTER XXIV. CROPS. 249. Tenant entitled to crops and annual fruits. 250. Stipulations against removal of crops. 251. The doctrine of emblements. a. Nature of the right. b. Things -which are the subject of the right. c. Classes of tenants entitled. (1) Life tenants. (2) Life tenant's lessee. (3) Tenant at will. (4) Tenant for years. (5) Tenant from year to year. (6) Tenant at sufferance. d. Effect of forfeiture by tenant. 252. Tenant's rights as against prior mortgage or paramount title. 253. Agreements for the division of crops. a. General considerations. b. Tenancy in common in crops. TABLE OF CONTENTS. xiil c. Duties as regards cultivation and harvesting. d. Ascertainment of landlord's share. e. Delivery of landlord's share. (1) Mode of delivery. (2) Time of delivery, f. Transfer of undivided share. g. Rights of creditors. h. Enforcement of rights as between the parties, i. Actions against third persons. CHAPTER XXV. CHATTELS ON THE PREMISES. § 254. Lease of land and chattels. 255. Chattels belonging to the tenant. a. Time of removal. b. Failure to remove. CHAPTER XXVI. OPTION OF PURCHASE IN TENANT. § 256. Nature and validity of the stipulation. 257. Option as interest in land. 258. Alternative right in lessor, 259. Right of "refusal" In tenant. 260. Conditions for exercise of option. 261. Time for exercise of option. 262. Mode of exercise of option. 263. Payment or tender of price. 264. Exercise as to part of premises. 265. Effect of exercise. 266. Sufficiency of conveyance. 267. Change of parties to the tenancy. 268. Remedy for breach of stipulation. 269. Statutory provisions. xiv TABLE OF CONTENTS. CHAPTER XXVII. PAYMENT BY LANDLORD FOR TENANT'S IMPROVEMENTS. § 270. In absence of stipulation. 271. Stipulation as to payment, a. As alternative to renewal. b. As dependent on sale of reversion. c. Election by lessor. d. Improvements within stipulation. e. Effect of renewal or extension. f. Effect of tenant's breach of covenant. g. Effect of forfeiture of leasehold. h. Change of parties to tenancy. i. Title to improvements. j. Valuation of improvements. k. Possession of premises pending payment. 1. Enforcement of payment — Lien. CHAPTER XXVm. SUMMARY PROCEEDINGS. I 272. General considerations. 273. By and against whom proceedings maintainable. a. By landlord against tenant. (1) Necessity of relation of tenancy. (2) Character of tenancy. (3) Validity of lease. b. By person entitled to possession. c. By licensor against licensee. d. By vendor against purchaser. e. By grantee against grantor. f. By mortgagee against mortgagor. g. By foreclosure purchaser against mortgagor, h. By joint lessor or lessors. 1. By personal representative. j. By guardian. k. By receiver. TABLE OF CONTENTS. XV 1. By agent or attorney. m. Effect of transfer of reversion. n. Effect of subsequent lease. o. Against persons claiming under lessee — Assignees and sub- tenants. p. Against corporation. 274. Grounds for proceeding. a. Holding over by tenant. (1) After expiration of tenancy. (2) After surrender. (3) Notice to quit as prerequisite. (a) Distinguished from notice terminating ten- ancy. (b) Statutory requirements. (c) Time and length of notice. (d) Form of notice. (e) Person to give notice. (f) Service of notice. (g) Waiver of notice. b. Breach of condition. c. Illegal use of premises. d. Nonpayment of rent. (1) Statutory provisions. < (2) Applicability of the statutes. (3) Demand for rent as prerequisite. (4) Notice to quit as prerequisite. (a) Statutory provisions. (b) Form of notice. (c) Person to give notice. (d) Waiver of requirement. (e) Service of notice. (f) Waiver of notice given. (5) Counterclaim as defense. (6) Waiver of right to maintain proceeding. (7) Payment or tender of rent — Redemption. e. Breach of express stipulation other than for rent. f. Assignment or subletting. g. Bankruptcy. 275. Statutes of limitation. 276. Equitable defenses. 277. Title to premises. xvi TABLE OF CONTENTS. § 278. Complaint, petition or affidavit. a. General considerations. b. Showing as to tenancy. c. Interest of petitioner. d. Defendant's possession. e. Petitioner's agency for landlord. f. Designation of subtenants. g. Description of premises. h. Previous demand or notice. i. Right to possession. j. Nonpayment of rent, k. Amendment. 279. Answer or plea. 280. Summons and return. 281. Adjournment of the proceeding. 282. Findings of fact 283. Judgment or order. a. In default of appearance. b. For rent or damages. 284. Appeal and certiorari. 285. Warrant of dispossession. 286. Conclusiveness of judgment. 287. Effect of proceeding as terminating tenancy. 288. Injunction against proceeding. 289. Liability for wrongful institution of proceeding. CHAPTER XXIX. ACTIONS FOR RENT. § 290. At common law. a. Debt. b. Covenant. c. Assumpsit. d. Account. 291. Under the code procedure. 292. Proceedings in equity. TABLE OF CONTENTS. xvii 293. Parties plaintiff. a. Persons beneficially interested. b. Transferees. c. Persons jointly entitled. d. On death of person entitled. e. Statutory provisions. 294. Parties defendant. a. Joint or several liability. b. On assignment of leasehold. c. On death of person liable. d. Persons asserting title. e. Guarantors and sureties. 295. Pleading. 296. Set-off, recoupment, and counterclaim. 297. Limitations. 298. No prior demand necessary. 200. Joinder of causes of action and defenses. 300. Actions for successive installments. 301. Stipulations for attorney's fees. CHAPTER XXX. ACTIONS FOR USE AND OCCUPATION. § 302. Nature and history of the action. 303. The subject of the use and occupation. 304. Necessity of relation of tenancy. 30.5. Tenancy created by attornment. 306. Particular classes of persons. a. Person entering under contract for lease. b. Person entering under contract of sa^e. c. Person retaining possession after judicial sale. d. Tenant holding over. e. Grantor retaining possession. 307. Liability of assignee. 308. Liability of executor or administrator. 309. Election by plaintiff against tenancy. xviii TABLE OF CONrEM'S. § 310. El'fect of existing lease to a stranger. 311. Persons wlio may sue. 312. As between tenants in common. 313. In case of lease under sea). 314. Necessity of actual occupancy. 315. Rent reserved in kind. 316. Pleading. 317. Evidence and presumptions. 318. Amount of recovery. a. When no rent reserved. b. When specific rent reserved. 319. Debt for use and occupation. CHAPTEP. XXXI. LIENS IN FAVOR OF THE LANDLORD. § 320. Apart from statute or agreement. 321. Statutory liens. a. Creation and existence of the tenancy. b. The nature and utilization of the premises. c. Obligations secured. (1) Rent. (a) Rent payable in kind. (b) Rent accrued and to accrue. (c) Other indebtedness asserted as rent. (2) Advances and supplies. (3) Stipulations of the lease. d. Things subject to the lien. (1) General considerations. (2) Crops. (3) Things kept or used on the premises. (4) Things on other premises. (5) Things not belonging to the tenant. (6) Things exempt from execution. (7) Proceeds of sale. e. Persons entitled to assert the lien. (1) Assignees. (2) Persons acting in behalf of others. TABLE OF CONTENTS. xix f. Priorities." (1) General considerations. (2) Purchasers with notice. (a) Ordinarily take subject to Hen. (b) V/hat constitutes notice. (c) Purchasers in ordinary course of business. (3) Purchasers without notice. (a) Ordinarily take free from lien. (b) Purchasers not for value. (4) Mortgagees. (5) Persons having liens for supplies or services. (6) Attachment and execution creditors. (7) Marshaling of securities. g. Duration of the lien. h. Extinguishment of the lien by payment. 1. Relinquishment or waiver of the lien. (1) Express relinquishment. (2) Acceptance of note or other security. (3) Inducing action by third person. (4) Consent to sale or removal of property. (5) Abstention from enforcement of lien. (6) Blending of claims. j. Removal of the property subject. k. The possessory rights of the landlord. 1. Enforcement of lien. (1) Necessity of legal proceeding. (2) Form of proceeding. (3) By equitable proceeding. (4) In collateral proceeding. (5) Before maturity of claim. (6) Affidavit and bond. (7) Parties. (8) Judgment. m. Persons interfering with property subject— Pecuniary liability. § 322. Conventional liens. a. Form of stipulation for lien. b. The nature of the lien. c. The indebtedness secured. d. Property subject to the lien. (1) General considerations. (2) Property of assignee or subtenant, (3) Description of property. (4) After-acquired property. ^^ TABLE OP CONTENTS. e. Persons entitled to assert lien. f. Recording and priorities. g. Waiver of the lien. h. Enforcement of the lien, I. Landlord's rights against third persons. § 323. Deposits to secure rent. 324. Agreement to give security. CHAPTER XXXII. DISTRESS AND ATTACHMENT. A. Distress. 325. The right of distress — General considerations, 326. Existence of relation of tenancy. a. Is usually necessary. b. Character of demise or lease. c. Possession under contract for lease. d. Effect of transfer of interest. e. Effect of expiration of term. f. Effect of forfeiture, g. Effect of surrender. 327. For what distress may be made. a. Not for periodic payments other than rent. b. Sums reserved on lease of land and chattels. c. Sums reserved on lease of land and incorporeal things. d. Certainty of rent. e. Rent payable in specific articles. f. Distress for services other than rent. g. Statutory distress for advances. h. Express stipulations. 328. Things subject to and exempt from distress. a. Things not belonging to the tenant. (1) Ordinarily subject to distress. (2) Things belonging to tenant's wife. (3) Things belonging to prior or subsequent lessee. (4) Things on premises in way of trade. (5) Things belonging to guest or lodger. TABLE OF CONTENTS. xxl (6) Straying cattle. (7) Circumstances creating estoppel on landlord. (8) Reimbursement of owner by tenant. (9) Statutory changes of rule. b. Fixtures. c. Things not restorable in same plight as when taken. d. Grain and growing crops. e. Things in actual use. f. Things in custodia legis. g. Beasts of the plough and sheep. h. Implements of husbandry and trade. 1. Animals ferae naturae. j. Choses in action. k. Things exempt by statute. 1. Things not on the premises. (1) Not ordinarily subject at common law. (2) Cattle seen on premises and driven therefrom. (3) Statutory right as to things removed. (4) Statutory right as to tenant's goods. § 329. Loss of right of distress. a. By extinction of rent. b. By tender of rent due. c. By release, suspension, or waiver of right. [ d. Effect of existence of other remedies. e. Effect of acceptance of note, draft, or bond for rent. f. Effect of tenant's death. 330. Successive distresses. 331. Amount for which distress allowable. 332. Set-off and counterclaim. 333. Time for distress. a. Usually after rent due. b. Statutory distress for rent not due. c. Statutory limitation period. 334. Persons entitled to distrain. a. Persons having or not having the reversion. b. Executors and administrators. c. Tenants pur autre vie. d. Joint tenants and tenants in common. e. Mortgagors and mortgagees. f. Receivers. g. Agents. 335. Preliminaries to levy. a. Demand for rent. TABLE OF CONTENTS. b. Affidavit. c. Bond. d. Warrant. 336. Person to make levy. 337. Mode of levy. a. Entry. b. Seizure. c. Hours for levy. 338. Effect of levy. 339. Impounding. 340. Pound breacb. 341. Care of things taken. 342. Sale and preliminaries thereto. a. Power to sell. b. Notice to tenant. c. Appraisement. d. Mode of sale. 343. Surplus proceeds and unsold goods. 344. Statutory distress as commencement of action. 345. Abandonment of distress. 346. Wrongful and irregular distresses— Remedies. a. Rescue. b. Replevin. (1) Proceedings at common law. (2) Local statutory changes. c. Injunction. d. Action for damages. (1) Distress when no tenancy exists. (2) Distress when no rent due. (3) Seizure or sale after tender. (4) Distress on property not subject. (5) Irregularities in entry or seizure. (6) Second distress. (7) Excessive distress. (8) Irregularities after seizure. (9) Measure of damages. (10) Persons liable. (11) Matters excluding right of action. TABLE OP CONTENTS. xxiii B. Attachment. 347. When authorized. 348. Affidavit for attachment. 349. Bond. 350. Writ and levy thereunder. 351. Damages for wrongful attachment. CHAPTER XXXIII. RIGHTS OF ACTION AGAINST THIRD PERSONS. 352. Physical injuries to premises. a. Action by landlord. b. Action by tenant. 353. Interference with rights of enjoyment. a. Action by landlord. (1) Rule ordinarily asserted. (2) Theory of recovery. (3) Form of action. (4) Averments of injury. (5) Measure of damages. (6) Loss or reduction of rent. b. Action by tenant. (1) Right of action. (2) Interference existing prior to lease. (3) Form of action. (4) Measure of damages. (5) Effect of contract by landlord. 854. Taking for public use. 355. Interference with relation of tenancy. 356. Action of ejectment. LANDLORD AND TENANT. CHAPTER XVII. EVICTION. 184. General considerations. 185. By landlord. a. Actual and constructive eviction. b. Intention of landlord. c. General character of landlord's acts. d. Tenant must relinquish possession. e. Total and partial eviction. f. Specific acts by landlord. (1) Forcible expulsion or exclusion. (2) Interference with ingress or egress. (8) Deprivation of rights appurtenant to leasehold. (4) Acts of omission. (5) Occupation by landlord on tenant's abandonment. (6) Subsequent lease or other conveyance. (7) Unauthorized demand for possession. (8) Injurious conditions on adjoining premises. (9) Threats and annoyances by landlord. (10) Interference with subtenant. (11) Making of repairs. (12) Withholding of license for business. g. Tenant's assent to landlord's acts. h. Effect of eviction on tenancy. i. Action for damages. 186. By third person. a. Under title paramount. (1) What constitutes title paramount. (2) Acts constituting eviction. (3) Eifect of eviction. b. Wrongful acts of third persons. c. Acts of public authorities. § 184. General considerations. What is known as an "eviction" of the tenant from the de- mised premises has important consequences, one of which is the 1258 EVICTION. § 185 saspension or extinction of the landlord's right to rent, in whole or in part/ and another is that it gives a right of action to the tenant against the landlord, either on the covenant for quiet en- joyment ^ or, in case the eviction is by the landlord, in tort.^ An eviction having legal consequences of the character re- ferred to may be either by the landlord or by a third person hav- ing a title paramount to that of the landlord. There is no such thing, in a legal sense, as an eviction by a third person not having paramount title, or, as the same idea may be otherwise expressed, using the term in an untechnical sense, an eviction by a third person, not having paramount title, does not have any legal effect as against the landlord but merely renders such third person liable as a tort feasor for the trespass.* An eviction may, in general terms, be said to occur when the tenant is forced to yield possession to one having a title paramount to that of the landlord, or when the landlord himself dispossesses the tenant, either hy actually taking possession or by such acts of interference with the latter 's enjoyment of the premises that the tenant is, in the eye of the law, justified in relinquishing pos- session, and he does relinquish it. § 185. By landlord. a. Actual and constructive eviction. The question whether, in a particular case, there has been an eviction by the landlord may, and frequently does, involve very considerable difficult}''. There clearly is an eviction by the landlord if he forcibly dis- possesses the tenant, as there is if, during the temporary absence of the tenant, the landlord prevents him from returning.^ But not only is such an act, which in itself involves a direct depriva- tion of possession, regarded as an eviction, but so is any other act which so affects the tenant's enjoyment of the premises that he relinquishes possession, provided this act is a legal justi^- cation for such relinquishment. It is i.n determining what acts constitute such a justification that the chief difficulty of the sub- ject arises. An eviction of the latter class, that is, not by the forcible removal or exclusion of the tenant but by acts of inter- 1 See ante, § 1S2 e. 4 See post, § 186 b. 2 See ante. 79. 6 See post, § 185 f (1). 3 See post, § 185 i. BY LANDLORD. 1259 ference with his enioyment resulting in his -^i-^^"* ;,^ possession, is quite frequently referred to as a ; constructive eviction, as distinguished from an "actual eviction. The courts usually speak of a particular act or series of acts on the part of the landlord as constituting a constructive evicao.n vel nor. without any reference to the subsequent relinquishment of possession by the tenant. This is not a strictly accurate mode of expressid, since parting with the possession is as much a part of the eviction when the tenant leaves as a result of tne landlord's interference with his enjoyment as when he is forcioiy ousted, he being in theory ousted by the landlord in the former case as in the latter. This mode of expression is, however, highly co^ivenient, and will be adopted in the following pages,_it being borne in mind, however, that when we speak of a certain act on the part of the landlord as constituting an eviction, we mean that if such act results in the tenant's relinquishmeat of posses- sion' they together have the legal effect of an eviction. b ' Intention of landlord. In order that an eviction may take place as a result of acts on the part of the landlord involving merely an interference with the tenant's possession and enjoy- ment, as distinct from an actual dispossession, it is necessary that they be such as to indicate an intention on the landlord, s part to deprive the tenant of the possession.^ The intention here referred to is, however, ordinarily of a purely legal nature, in- ferred from the character of the landlord's act or acts, and the question of actual intent arises, it has been said, ''only when the acts are such as do not of themselves afford a presumption of in- tent.""^ There are, indeed, but few reported cases m which the eUDton V Townend, 17 C B. 30; Generally the question whether acts T,- -nndlev 65 Ala 63- Eisen- of the landlord in consequence of IZ v' OrdeanV 3 Colo. App- 162. 32 which the tenant abandons the prem- l lor Fleming v King, 100 Ga. ises amount to an eviction is a ques- rr9%8 S eT39 Hayner'v. Smith, tion of law, and includes the ques- ro ;ii 4''0 U Am. Rep. 124; Morris tion whether they constitute proof V T m'on' SI 111. 607; Dennick v. of the intent. A person is pre- IJZ ^09 Til \PP 199; Hay ward sumed to intend the natural and '^ f : ' .VNeb sSg 51 N W.229; probable consequences of his acts; ^ineTv Maguire IS R L 770. 30 and when the acts of a landlord Miner V. mctfa ^^^^^ ^^^ demised premises are such ^''sWly V Shute, 132 Mass. 367. as naturally and probably exclude per W. Allen. J., who continues: the tenant from the possession and J260 EVICTION. § 185 actual mental intention of the landlord was regarded as material in determining whether there was an evietion.s c. General character of landlord's acts. In order to support the inference of an intention to deprive the tenant of possession, the landlord's act or acts must not only involve a substantial interference with the tenant's enjoyment of the premises, but the interference must be more or less permanent. As is generally said, the act of the landlord must be "something of a grave and permanent character. "^ To these words is ordinarily added in the cases the statement that the act must be ''done by the land- lord with the intention of depriving the tenant of the demised premises," but this, as above remarked, is almost invariably in- ferred from the character of the act, that is, its "grave and perma- nent character" is apparently sufficient to show this intention. This requirement of substantiality and permanency in the land- lord's act is apparently what is ordinarily involved in the state- ment, frequently made, that a "mere trespass" by the landlord does not constitute an evietion.io T^^t is, a trespass by the land- enjoyment of the premises, and as- session of the tenant or as a per- sert a title in the landlord himself, sonal trespass. the law presumes an intent to do In Kistler v. "Wilson, 77 111. App. so- and, if the natural consequence 149, it was decided that the land- follows, the acts are said to amount lord's consent to the erection of an to an eviction." In this case it was elevated railroad in front of the held to he a question for the jury premises did not effect an eviction, v/hether the evidence showed that since it did not indicate an inten- the landlord dug up the soil under tion to deprive the tenant of the the building so as to render it un- full enjoyment of the premises, safe for occupancy, while it was a though this was its effect, question for the court whether these 9 Upton v. Towuend, 17 C. B. 30; acts were done with such an inten- Rice v. Dudley, 65 Ala. 68; Fleming tion that an eviction resulted. See, v. King, 100 Ga. 449, 28 S. E. 239; also, to the effect that the intent is to Hayner v. Smith, 63 III. 430, 14 Am. he determined from the' acts, Waite Rep. 124; Barrett v. Boddie, 158 111. v. O'Neil, 76 Fed. 408. 479, 42 N. E. 143, 49 Am. St. Rep. 8 In Henderson v. Mears, 1 Fost. & 172; Miller v. Maguire, 18 R. I. 770, F. 636, 28 Law J. Q. B. 305, the forci- 30 Atl. 966. See Royce v. Guggen- ble expulsion of the tenant's agent heim, 106 Mass. 201, 8 Am. Rep. 322. in charge of the premises was held lo Upton v. Townend, 17 C. B. 30; not to be necessarily an eviction of Newby v. Sharpe, 8 Ch. Div. 39; the tenant, but it was left to the Rice v. Dudley, 65 Ala. 68; Hyman jury to say whether this act by the v. Jockey Club Wine, etc., Co., 9 landlord was intended as a dispos- Colo. App. 299, 48 Pac. 671; Isabella s^ ^gg BY LANDLORD. 1261 lord on tlie premises, if wanting in the above named character- istics, cannot result in an eviction, while if it has those character- istics, and it is followed by the tenant's relinquishment of posses- sion, it does so result. Applying this distinction between a trespass and an eviction, it has been held that an eviction was not shown by evidence that the landlord merely went upon the demised premises and removed therefrom chattels belonging either to himself or to the tenant,!^ or dug coal thereon,i2 or cut flowers, trees or crops.^^ So there is merely a trespass if the landlord piles firewood on a part of the premises without interfering with the tenant's substantial enjoy- ment,i4 if he occasionally uses the premises in the tenant's ab- sence,i'5 if he enters after a fire to clean the brick,!^ or even, it has beeai decided, if he makes an assault on the tenant.^^ On the other hand, there was held to be an eviction when the ten- ant abandoned the premises owing to the act of the landlord in digging up the soil under the building, thereby rendering it unsafe for occupancy,is and when, after the destruction of a building, of which parts were leased to different tenants, the landlord authorized the reconstruction of the building in such a Gold Min. Co. v. Glenn, 37 Colo. 165, 12 Tiley v. Moyers, 43 Pa. 404. 86 Pac. 349; Fleming v. King, 100 " Bartlett v. Farrington, 120 Ga. 449, 28 S. E. 239; Hayner v. Mass. 284. Smith, 63 111. 430, 14 Am. Rep. 124; i-i Loim^.berry v. Snyder, 31 N. Y. Royce v. Guggenheim, 106 Mass. 201, 514. 8 Am. Rep. 322; Kimball v. Grand The act of the landlord in filling Lodge of Masons, 131 Mass. 59; Mc- up the cellar of the demised prem- Fadin v. Rippey, 8 Mo. 738; Elliott ises vrith dirt is said, in McFadin v. V. Aiken, 45 N. H. 30: Edgerton v. Rippey, 8 Mo. 738, to be "a mere Page, 1 Hilt. (N. Y.) 320; Noble v. trespass or illegal ouster, and not a Warren, 38 Pa. 340. That a tres- legal eviction." pass, without any dispossession of 15 Way v. Myers, 64 Ga. 760. the tenant, is not an eviction was is Fleming v. King, 100 Ga. 449, 28 explicitly decided by the old author!- S. E. 239. ties before the theory of "construe- 17 Vatel v. Herner, 1 Hilt. (N. Y.) tive" eviction arose. See the review 149; Haas v. Ketcham, 87 N. Y. Supp. of the cases in Bennet v. Bittle, 4 411. See post, § 185 f (9). Rawle (Pa.) 339. The act of the landlord in procur- 11 Kimball v. Grand Lodge of ing the tenant's arrest for interfer- Masons, 131 Mass. 59; Bartlett v. ing with a distress is at most a Farrington, 120 Mass. 284; Hay ward trespass. Noble v. Warren, 38 Pa. V. Parage, 33 Neb. 836, 51 N. W. 229; 840. Newby v. Sharpe, 8 Ch. Div, 39. is Skally v. Shute, 132 Mass. 367. 1262 EVICTION. § 185 way that the area of the premises of each tenant was changed, each tenant was regarded as evicted.^^ Likewise it has been decided that the act of the landlord, after breaking into the premises, in having the lock altered and retaining the key, changed what was a trespass into an eviction.^^^ The question whether there has been an eviction is one for the jury, it is said,^^ that is, it is for them to decide whether the acts done by the landlord are of a substantial and permanent character, shoAving an intention to dispossess the tenant of the premises. But the courts, in many cases, discuss the question as a matter of law with reference to whether, in the particular case, the facts are sufficient to justify the finding of an evie- tion.2i 10 Upton V. Townend, IT C. B. 30. [2]). This legal result of the de- There it was held that a tenant was struction of the building would seem evicted, although the premises not to be changed by the presence which he would enjoy under the new of a covenant to rebuild in case of plans were larger than those to destruction, as in the English case which he was entitled before the fire, referred to, but this might perhaps since he was thereby deprived of be construed as a covenant to re- the occupation "of the thing de- build and to give a new lease for the mised" and he could not use his residue of the old term, premises without the danger of tres- ^^^ Lester v. Griffin, 57 Misc. 628, passing on another's premises, and 108 N. Y. Supp. 580. he was also deprived of the protec- 20 Hunt v. Cope, Cowp. 242; Upton tion and support of his boundary v. Townend, 17 C. B. 30; New York wall, which was removed to anoth- Dry Goods Store v. Pabst Brew. Co., er's premises. The discussion of 50 C. C. A. 295, 112 Fed. 381; Rice v. the subject of eviction in this case Dudley, 65 Ala. 68; Collins v. Kara- has been constantly referred to, and .topsky, 36 Ark. 316; Hyman v. Joe- it is no doubt the leading case on key Club Wine, etc., Co., 9 Colo. App. the subject. In this country, how- 299, 48 Pac. 671; Holly v. Brown, 14 ever, where the lease of part of a Conn. 255; Talbott v. English", 156 building is not regarded as passing Ind. 299, 59 N. E. 857; Hayner any interest in the land itself (see v. Smith, 63 111. 430, 14 Am. Rep. ante, §§ 24c, 26c [2]), the actual 124; Barrett v. Boddie, 158 111. 479, decision would presumably have 42 N. E. 143, 49 Am. St. Rep. 172; been otherwise, and the tenancy be- Rubens v. Hill, 213 111. 523, 72 N. E. Ing regarded as terminated by the 1127; Jackson v. Eddy, 12 Mo. 209; destruction of the building (see Peck v. Hiler, 31 Barb. (N. Y.) 117; ante, § 12 g [8]), any subsequent Broadway Bldg. Co. v. Myers, 49 change in the nature and plans of Misc. 531, 97 N. Y. Supp. 977. the building could not be regarded 21 in Skally v. Shute, 132 Mass. as an eviction (see ante, § 182 m 367, it was said that "generally the e -^gg BY LANDLORD. 1263 d. Tenant must relinquish possassion. In order that there be an eviction by the landlord, in the legal sense, it is necessary that the tenant no longer retain possession of the premises. In case of an actual dispossession of the tenant, an "actual evic- tion," no question can arise in this regard, but when there is merely an interference with his possession and enjoyment, it is necessary that the tenant relinquish possession of the prem- ises in order that there be a "constructive eviction," the theory being that the acts of interference by the landlord compel the tenant to leave, and that he is thus in effect dispossessed, though not forcibly deprived of possession.22 As has been remarked, "the proposition that there can be retention of demised premises and an eviction are logically and legally contradictory. "23 Not question whether acts of tho land- 104 N. Y. Supp. 863; Mahoney v. lord in consequence of which the Broadway Brew. & Malting Co., 57 tenant abandons the premises Misc. 430, 108 N. Y. Supp. 237; Jack- amount to an eviction is a question son v. Paterno, 58 Misc. 201, 108 N. of law," and it was held to be Y. Supp. 1073; Sutton v. Foulke, 44 ground for reversal that the ques- Leg. Int. (Pa.) 5; Leiferman v. tion was left to the jury, it being Osten, 167 111. 93, 47 N. E. 203; Hum- merely for them to say whether the iston, Keeling & Co. v. Wheeler, 175 landlord did the acts alleged. 111. 514, 51 N. E. 893; Ralph v. 22Cromm8lin v. Thiess, 31 Ala. Lomer, 3 Wash. St. 401, 28 Pac. 760; 412, 70 Am. Dec. 499; Agar v. Win- Wilson v. Smith, 13 Tenn. (5 Yerg.) slow, 123 Cal. 587, 56 Pac. 422, 69 379. But compare cases referred to Am. St. Rep. 84; Barrett v. Boddie, post, note 34. 158 111. 479, 42 N. E. 143, 49 Am. St. 23 Mortimer v. Brunner, 19 N. Y. Rep. 172; Keating v. Springer, 146 (6 Bosw.) 653. 111. 481, 34 N. E. 805, 37 Am. St. Sometimes this requirement Is ex- Rep. 175 (obstruction of light) ; Hig- pressed by the statement that the hie Co. V. Weeghman Co., 126 111. App. tenant's abandonment of the prem- 97; Talbott v. English, 156 Ind. 299, ises is necessary to effect an eviction, 59 N. E. 857; Taylor v. Finnigan, 189 and sometimes by the statement that Mass. 568. 76 N. E. 203; Roth v. an eviction by the landlord must be Adams, 185 Mass. 341, 70 N. E. 445; followed by such abandonment to International Trust Co. v. Schu- have a legal effect on the rent or to mann, 158 Mass. 287, 33 N. E. 509; give a right of action. We would Beecher v. Duffield, 97 Mich. 423, 56 prefer the former mode of expres- N. W. 777; Boreel V. Lawton, 90 N. Y. sion, since the landlord's abandon- 293, 43 Am. Rep. 170; Bdgerton v. ment of the premises is, as before Page, 20 N. Y. 281; Beakes v. Haas, stated (see ante, § 185 a), a constit- 86 Misc. 796, 74 N.Y. Supp. 843; Hall uent part of the eviction. The v. Irvin, 38 Misc. 123. 77 N. Y. Supp. legal consequences are a result of the 91; Kinney v. Libbey, 54 Misc. 595, eviction, and not of the eviction plua ]^264 EVICTION. § 185 only must there be a relinqmshment or abandonment of pos- session, but this must be on account of the interference by the landlord ; and, if this is not the case, the fact that the abandon- ment follows after acts of interference sufficient in themselves to justify the abandonment does not give rise to a legal evic- tion.24 Accordingly there is no eviction if the acts on the part of the landlord are merely temporary in their effect, and are no longer operative at the time of the tenant's abandonment of pos- session.25 It has been said that the tenant must abandon the premises within a reasonable time after the acts complained of,^^ the meaning of which presumably is that the lapse of a consider- able time before abandonment tends to show that the abandon- ment, when it does take place, is not a result of such acts. A delay in rbandonment is, however, it seems, excused if this is the result of promises by the landlord to remove the cause for abandonment.27 And though the tenant fails to abandon the premises on account of conditions justifying him in so doing, this does not prevent him from so doing on a subsequent re- newal of such conditions in a more aggravated form, and from then asserting an eviction.^s e. Total and partial eviction. An eviction may be from the whole of the demised premises, or from part only, a "partial eviction" as it is termed. For the purpose of constituting a the tenant's abandonment. As is zg Crommelin v. Thiess, 31 Ala. said bj- Larremcre, C. J., in Koehler 412, 70 Am. Dec. 499; Dennick v. Ek- V. Scbeider, 15 Daly, 203, 4 N. Y. dabl, 102 111. App. 199; Orcutt v. Supp. 611, tbe statement that a ten- Isham, 70 111. App. 102; Fox v. Mur- ant, while remaining in possession, dock, 58 Misc. 207, 109 N. Y. Supp. cannot assert an eviction, "is only 108; Seaboard Realty Co. v. Fuller, another way of saying that one can- 33 Misc. 109, 67 N. Y. Supp. 146. not raise the defense of eviction un- The tenants cannot delay their less he has been evicted." abandonment, it has been held, till 21 Eisenhart v. Ordean, 3 Colo, after a time when, by the provisions App. 162, 32 Pac. 495; Riley v. Lally, of the lease, they might have term- 172 Mass. 244, 51 N. E. 1088; Ed- inated the tenancy. Megargee v. wards v. Candy, 14 Hun (N. Y.) Longaker, 10 Pa. Super. Ct. 491. 5?,6; Humiston, Keeling & Co. v. 27 Wallace v. Lent, 1 Daly (N. Y.) Wheeler, 175 111. 514, 31 N. B. 893. 481. 23 Ryan V. Jones, 2 Misc. 65, 20 N. 28 Marks v. Dellaglio, 56 App. Div, Y. Supp. 842; Adams v. Burr, 13 299, 67 N. Y. Supp. 736. Misc. 247, 34 N. Y. Supp. 156. § 185 BY LANDLORD. 1265 defense to a claim for rent, a partial eviction by the landlord is as effective as an entire eviction,^'^ but there would ordinarily be a difference as regards the liability of the landlord in dain- ages.3*^ An actual eviction may be partial, as when the land- lord takes possession of part of the premises by actually dis- possessing or excluding the tenant therefrom,^^ as likewise, pre- sumably, may a constructive eviction, as when the landlord so interferes with the tenant's enjoyment of a part of the prem- ises that the latter is justified in relinquishing possession of that part and he does so, retaining possession of the residue.^^ More- over, an actual eviction of the tenant from part of the premises may so affect his enjoyment of the premises as a whole as to justify their entire abandonment by him, thus resulting in a constructive eviction from the whole.^s Ordinarily the question whether an eviction is from part or all of the premises presents but little difficulty, and there are but few decisions bearing thereon. Occasionally, however, the question has arisen whether there was an actual eviction from part of the premises or merely acts on the part of the landlord justifying the tenant's abandonment of the whole, which, not being followed by such abandonment, were without legal effect, and some courts have gone decidedly far in regarding, as con- stituting a partial actual eviction, acts which merely cause an interference with the tenant's enjoyraeat of the premises, and which would seem to be legally ineffective unless followed by the tenant's abandonment of the whole or of part of the prem- ises.34 These cases in eft'ect, it seems, deny the rule before as- 20 See ante, § 182 e (2). conf-tituted an actual eviction from 30 See post, § 185 i. part of the premises, so that the 31 See post, at notes 37-40. right to rent was suspended, though 32 See Royce v. Guggenheim, 106 the tenant retained possession of Mass. 201, 8 Am. Rep. 322. Com- the whole office. It is somewhat pare ante, § 182 e (2), at notes 859a- difficult to understand how the clos- 861. ing of an opening in the wall can 33 See Newton v. Allin, 1 Q. B. 518. be regarded as an exclusion from 34 In Hamilton v. Grayblll, 19 possession of a part of the premises. Misc. 521, 43 N. Y. Supp. 1079, and so as to be an actual eviction in Seigel V. Neary, 38 Misc. 297, 77 N. part, except upon the theory that Y. Supp. 854, it was held that the the threshold, a part of the leased closing by the landlord of one of premises, is actually occupied by tho the two entrances to the room leased closed door or by some other obstruc- L. and Ten. 80. 1266 EVICTION. I 185 serted, that there can be no eviction while the tenant remains in possession of the leased premises, and obliterate all distinc- tion between actual and constructive eviction. Several of tliciu tion placed there by the landlord, rent when the tenant's right to the In Lawrence v. Denham Co., 58 Misc. use of a certain yard and certain 543, 109 N. Y. Supp. 752, it was held conveniences therein appurtenant to that there was an "actual partial the leased premises was prevented eviction" because the tenant of a by the landlord's building in the loft in a building was at times pre- yard. vented from personally entering the In New York Dry Goods Store v. building. Pabst Brew. Co., 50 C. C. A. 295, 112 In Hall V. Irvin, 78 App. Div. 107, Fed. 381, the act of the landlord in 79 N. Y. Supp. 614, it was decided cutting openings in the wall, while that it was ground for refusal to pay extending his window space on the rent, although the tenant retained floor above that leased, was regarded possession of the leased premises, as an actual eviction. And in Her- that he was deprived of the use, to polsheimer v. Funke, 1 Neb. Unoff. a considerable extent, of the lava- 471, 95 N. W. 688, the act of the land- tories in the building, and that his lord in obstructing the view into a use of the passages, stairways and show window of which the tenant elevators leading to the offices leased had the use was regarded as an evic- by him was greatly interfered with tion, though the tenants remained by the making of repairs. In Edmi- possessed of the leased premises as son V. Lowry, 3 S. D. 77, 52 N. W. before. 583, 44 Am. St. Rep. 774, 17 L. R. To these cases may be added A. 275, It was decided that the acts Brown v. Holyoke Water Power Co., of the landlord in depositing lum- 152 Mass. 463, 25 N. E. 966, 23 Am. ber in the street, thereby interfering St. Rep. 844, where there was said with access to the premises leased, to be an eviction from "part of the constituted an actual eviction from premises let," when the tenant was part of the premises sufficient as a deprived of power which the land- defense to rent, though the tenant lord had agreed to furnish, though retained possession of all the prem- the tenant remained in possession of ises not within the line of the street, all of the rooms leased. This was And in Pridgeon v. Excelsior Boat an action against the landlord for Club, 66 Mich. 326, 33 N. W. 502, damages, and the use of the term where the premises were leased for eviction may perhaps be regarded use as a boat house, the fact that as a mere mode of expression, the the landlord interfered with access wrong consisting in the breach of thereto from the water was regarded the contract to furnish power. Pow- as an actual eviction excusing the er for manufacturing purposes, payment of rent, though the tenant transmitted by belting or otherwise, remained in possession. So in a mere form of energy, cannot, prop- Witte V. Quinn, 38 Mo. App. 681, erly speaking, it Is submitted, be "a there was held to be an actual evic- part of the premises let." See ante, tion for the purpose of a defense to §§ 24 a, 136. . jg5 BY LANDLORD. 1267 are apparently based on the theory that if, upon the lease of a part of a building, the lessee has an appurtenant right, such as that of access, in another part of the building remaining in the lessor's possession, that right constitutes a part of the leased premises, so that an interference with the exercise thereof con- stitutes an actual eviction from a part of such premises. This, it is submitted, is incorrect. A right to make a particular use of a part of the building adjoining that part of which the lessee is given possession, in order that such possession may be more beneficial or valuable, is, it is conceived, not a part of the leased premises, but is merely a right appurtenant to the tenant's pos- sessory interest. This seems particularly the case when there is no specific mention of such right in the lease but merely an im- plication of a grant thereof, based on the mode of construction of the building or on the previous method of use. f. Specific acts by landlord— (1) Forcible expulsion or ex- elusion. The forcible expulsion and exclusion of the tenant from the premises by the landlord is, as stated above, undoubt- edly an eviction, an "actual" eviction, in the full sense of the term,35 and, even without any expulsion of the tenant, his ab- solute exclusion from the premises after he has taken posses- sion is an eviction.^^ In case the exclusion is from not the whole of the demised premises but a part thereof, there is but a partial evictio.n.37 In ease of such exclusion from part there is, it has been said, a partial eviction, without reference to the extent of such part, or whether such exclusion materially changes the character and 85Hyman v. Jockey Club Wine, 138, 57 N. E. 360. it was held a etc., Co., 9 Colo. App. 299, 48 Pac. question for the jury on the evidence 671- Hayner v. Smith, 63 111. 430, 14 whether the act of the landlord in Am'. Rep. 124; Skally v. Shute, 132 taking the keys of the rooms leased Mass. 367; Hall v. Joseph Middle- out of the door, where they had bv, Jr., 197 Mass. 485, 83 N. E. 1114; been left by the tenant, was a sub- Witte V. Quinn, 38 Mo. App. 681. stantial exclusion of the tenant, or A forcible expulsion of the ten- whether his holding of the keys was ant is an eviction, though thereafter merely temporary and incidental to no attempt is made to prevent his the care of the rooms, with a desire return. Cibel v. Hills, 1 Leon. 110. on his part to have an opportunity 30 pendill v. Eells, 67 Mich. 657, of speaking to the tenant. 85 N W 754; New York Academy st Smith v. Raleigh. 3 Camp. 513; of Music V. Hackett, 2 Hilt. (N. Y.) Colburn v. Morrill, 117 Mass. 262, 217. In Faxon v. Jones, 176 Mass. 19 Am. Rep. 415; Smith v. Wise, 58 1268 EVICTION. S 185 enjoyment of the premises.^s A different view has, however, been expressed.39 Though the tenaJit is actually excluded from a part only on the premises, there is, as before stated, an evic- tion from the whole, no doubt, if this is such a substantial inter- ference with the enjoyment of the whole as to justify the tenant in relinquishing possession of the other part, and he does so.*^ The refusal of the lessor to allow the lessee to take possession under his lease is, it seems, not an eviction, since one who has never been in possession cannot be dispossessed.-^^ Somewhat similar, in its nature and effect, to an exclusion of the tenant from possession by the landlord, is the former's ex- clusion by the act of the landlord in procuring an ex parte in- Ill. 141; Smith v. McEnany, 170 It depends on circumstances. Twen- Mass. 26, 48 N. E. 781, 64 Am. St. ty inches might be a great deal in Rep. 272, in which latter case the the crowded streets of a city, but landlord allowed a wall to be built wholly insignificant if the boundary encroaching on the premises. of a Texas ranch." Obviously, hov/- 88 Smith V. McEnany, 170 Mass. ever trifling, the encroachment 26, 48 N. E. 781, 64 Am. St. Rep. 272, would be a trespass, though not an where it Is said, per Holmes, J., that eviction. "when the tenant proves a wrong- *o See Osmers v. Furey, 32 Mont, ful deforcement by the landlord 581, 81 Pac. 345; Newton v. Allin, 1 from an appreciable part of the Q. B. 518. premises, no inquiry is open as to 4i McClurg v. Price, 59 Pa. 420. n the greater or less importance of the Am. Dec. 356;' Stiger v. Monroe. 109 parcel from which the tenant is de- Ga. 457, 34 S. E. 595; Etheridge v. forced. Outside the rule de mini- Osborne, 12 V7end. (N. Y.) 529; Van- mis, the degree of interference wiih derpool v. Smith, 4 Abb. Dec. (N. the use and enjoyment of the prem- Y.) 461; Hawkes v. Orton, 5 Adol. & ises is important only in the case of E. £67. But see Walker v. Tucker, acts not physically excluding the 70 111. 527. tenant, but alleged to have an equal- The landlord's failure to remove ily serious practical effect." No sug- certain chattels belonging to him gestion is here made as to what con- after the tenant's contract for their stitutes "an appreciable part of the use has expired is not an eviction, premises" as distinguished from a Baumgardner v. Consolidated Copy- part not appreciable. ing Co., 44 111. App. 74. 30 Collins V. Karatopsky, 36 Ark. In Birckhead v. Cummins, 33 N. J. 316, where likewise a wall en- Law, 44, it is decided that no evic- croaohed on the premises, and it was tion resulted from the fact that the said that "an eviction depends on lessor, before the lessee took pos<;es- the materiality of the deprivation, sion, removed all the furniture on If trifling and produf^ing no incon- the premises, for the rqpson that a venience, it should not be regarded, lessee never in possession has merely § 185 BY LANDLORD. 1269 junction against the tenant's use of the premises, which has been regarded as involving an eviction.^^ (2) Interference with ingress or egress. The act of the land- lord in placing obstructions in the way of the approach to the leased premises, so as materially to interfere with the tenant's use and enjoyment of the premises, has been regarded as an eviction,48 ^j^jj h^^q same view has been taken of the act of the landlord in closing up one of the two entrances to the demised premises.^^ There is r ' an eviction if the lessor locks out the tenant while the latter is temporarily absent from the prem- ises.^^ The exclusion of persons seeking to enter the premises an interesse termini, and cannot, 774. But in Meeker v. Spalsbury, therefore, be evicted. Presumably 66 N. J. Law, 60, 48 Atl. 1026, It even if he had taken possession, the was held that an obstruction of the removal of the furniture would not passageway leading to the demised have been an eviction. See ante, at premises was not an eviction, and note 11. in Manchester, S. & S. R. Co. v. 42 Pfund V. Herlinger, 10 Phila. Anderson [18981 2 Ch. 394, It was (Pa.) 13, where the injunction was held that a temporary inconvenience against the use of the premises for caused by the landlord's interfer- a particular purpose. The fact that ence with the access to the prem- the landlord obtained the injunction ises by blocking up the street and in order to obtain a construction of also a private right of way was not the lease as to the tenant's right to a breach of the covenant for quiet use the premises for this purpose enjoyment. was regarded as immaterial. And 44 Hamilton v. Grayblll, 19 Misc. see Friend v. Oil Well Supply Co., 521, 43 N, Y, Supp. 1079. See ante, 165 Pa. 652, 30 Atl. 1134. note 84. 43 Hall V. Irvin, 78 App. Div. 107, 4b Williams v. Yoe, 22 Tex. Civ. 79 N. Y. Snnp. 614; Hoeveler v. App. 446, 54 S. W. 614 (semble). So Fleming, 91 Pa. 322 (dictum). In in Morgan v. Short, 13 Misc. 279, 34 Pridgeon v. Excelsior Boat Club, 68 N. Y. Supp. 10, a finding of eviction Mich. 326, 33 N. W. 502, it was held was held to be justified when the that the lessor of a boat house was landlord placed a padlock on the guilty of an eviction when he kept door after the tenant had removed a vessel moored so as to cut off all from the premises. And. see Lester approach to the boat house from the v. Griflln, 57 Misc. 628, 108 N. Y. water. And so there was held to be Supp. 580; ante, note 19 a. In Gol- an eviction when the lessor deposits burn v. Morrill, 117 Mass. "^2, 19 lumber in the street in fronfbf the Am. Rep. 415, it was held that there premises for a period of three was a partial eviction when the months so as to deprive the lessee of landlord removed the tenant's goods frpe access to the premises. Edmi- from one of the rooms leased and son V. T;Owry, 3 S. D. 77, 52 N. W. locked the doors of that and another 583, 17 L. R. A. 275, 44 Am. St. Rep. room, carrying away the key. 1270 EVICTION. § 185 at the tenant's request in order to make necessary repairs, fol- lowed by the tenant's removal, has also been held to involve an eviction.'*^'^ Such an interference with access or ingress to the prem- ises, unless the effect is to deprive the tenant of the actual pos- session of the whole or part of the premises, can, it seems clear, constitute an eviction only if followed by the tenant 's relinquish- ment of possession on account thereof, in accorda.nce with the rule before referred to.'*'' The tenant cannot retain posses- sion of the whole premises and allege a-n eviction from part merely because his access thereto is interfered with. Some courts, however, have adopted a different view.'*''' (3) Deprivation of rights appurtenant to leasehold. There is an English decision to the effect that the landlord's inter- ference with an easement appurtenant to the land cannot effect an eviction which will constitute a defense to a claim for rent, since the rent issues out of the demised premises alone.-is This seems most questionable, if such interference substantially and permanently affects the tenant's enjoyment of the land itself and he consequently abandons possession, and there are deci- sions in this country of an opposite tendency .^^ 4Ba Bergman v. Papia, 58 Misc. 533, depriving the lessee of the use of 109 N. Y. Supp. 856. a window for advertising purposes, 46See ante, § 185 d. which was given him by the lease. 47 See ante, at note 34, In Fuller v. Ruby, 76 Mass. (10 48 Williams v. Hayward, 1 El. & Gray) 285, it is said that the act El. 1040, where the easement in of the landlord in preventing a ten- question was the right to use a rail- ant from using the roof of the tene- way. In Coleman v. Reddick, 25 U. ment house for drying clothes might C. C. P. 579, a like decision was be an eviction. rendered as to a right to draw wa- In Hall v. Irvin, 78 App. Div. 107, ter from a pond for power purposes. 79 N. Y. Supp. 614, the tenant's de- 49 In West Side Sav. Bank v. New- privation of the use of the water ton 76 N. Y. 616, it was decided closet and wash basins in the office that the act of the landlord in cut- building in which the room leased ting off the city water supply might was located was regarded as suffl- effect an eviction. cient to constitute an eviction. In Wltte V. Qulnn, 38 Mo. App. 681, In Peck v. Hiler, 31 Barb. (N. Y.) the landlord's act in building over 117, it seems to be assumed that the a yard which the tenant had a right tenant's deprivation of the use of to use was regarded as an eviction, a railroad on adjoining land might as was, apparently, in O'Neill v. result in an eviction, but it was de- Manget, 44 Mo. App. 279, his act in cided that it did not in fact so ro- § 185 BY LANDLORD. 1271 It has been decided that the tenant's deprivation of a privi- lege previously enjoyed by him in connection with the demised premises, merely under a license given separately and apart from the lease, cannot justify a claim of eviction,^^*' and in no case, it seems, should an interference with the tenant's right to make a specified use of premises adjoining those leased be re- garded as an eviction, unless the tenant relinquishes possession of a part or the whole of t' - latter,^! though there are decisions apparently to the contrary, (4) Acts of omission. An eviction by the landlord is prop- erly an affirmative act on his part, an act of commission, involv- ing an interruption of or interference with the tenant's pos- session or enjoyment of the premises. It is, in its nature, a wrongful act which involves a breach of the covenant of quiet enjoyment. Unfortunately, the courts have occasionally lost sight of the true nature of an eviction in this respect. Some courts have, for instance, applied the term to a mere failure of the tenant to perform covenants which he may have made, the nonperformance of which renders the premises less desirable for some particular purposes. Thus, breaches by a landlord of cov- enants by him to furnish electric power for use on the prem- ises,^^ to furnish heat,^** and to furnish proper elevator service,'^" have each been referred to as constituting an eviction. Occa- sult, since the tenant had already as agreed for the enjoyment Ox tiiu rendered it incapable of use. In license, other words, there was no substan- bi See ante, § 185 d. tlal interference with the tenant's 52 See ante, at note 34. enjoyment. In Eschmann v. Atkin- 53 Brown v. Holyoke Water-Power son, 91 N. Y. Supp. 319, evidence that Co., 152 Mass. 463, 25 N. E. 966, 9 L. the servant of the tenant of an apart- R. A. 509, 23 Am. St. Rep. 844. ment was arbitrarily excluded from 54 Harmony Co. v. Rauch, 64 111. the use of the elevator was regarded App. 386; Bass v. Rollins, 63 Minn, as sufficient to sustain a finding of 226, 65 N. W. 348; Jackson v. Pat- au eviction. See, also, cases re- erno, 58 Misc. 201, 108 N. Y. Supp. ferred to ante, note 34, and post, § 1073. 185 f (8). 55 Lawrence v. Mycenlan Marble soLynch v. Baldwin, 69 111. 210. Co., 1 Misc. 105, 20 N. Y. Supp. 698; In this case, as a matter of fact, the Ardsley Hall Co. t. Sirrett, 86 N. Y. deprivation of such use was not by Supp. 792. See Delmar Inv. Co. v. the tenant's landlord but was by the Blumenfeld, 118 Mo. App. 308, 94 S. owner of the adjoining land by rea- W. 823. son of the landlord's failure to pay 1272 EVICTION. § 185 sionally the expression has even been applied to an undesirable physical condition of the premises, not the result of any act or omission of the landlord, merely because the tenant has, by stat- ute, the right to relinquish possession and refuse to pay rent if such condition is not removed.^^ The mere fact that the tenant is thus given the right to refuse to pay rent on account of such ''untenantable" condition of the premises does not impose upon the landlord any obligation to remedy that condition, as appears from the fact which, it is conceived, is not open to question, that the tenant has no right of action agaiost the landlord for fail- ure to remove such condition unless he has entered into a cov- enant to that effect. This being so, the statement that the ex- istence of such a condition constitutes an eviction by the land- lord is equivalent to a statement, it would seem, that the land- lord may be guilty of an eviction because he fails to do what he is under no obligation to do. Even when the tenant has entered into a covenant, the failure to perform which results in an un- tenantable condition, it is not perceived how either the breach of covenant, or the resulting untenantable condition, or both to- gether, can be regarded as constituting an eviction. This use of the term ''eviction," as applying to cases in which the tenant is, by force of statute or otherwise, regarded as justi- fied in leaving the premises and refusing to pay rent, owing to their "untenantable" condition, as it is ordinarily expressed, is no doubt a result of the fact that such right in the tenant also exists in cases of actual interference by the landlord with the tenant's enjoyment of the premises, a "constructive evic- tion" properly so called. Such extended application of the term can, however, but result in obscuring the real nature of an eviction, as being a wrongful act and not a mere failure to act, 56 See e. g., Tallman v. Murphy, and terminate his obligation to pay 120 N. Y. 345, 24 N. E. 716; Sully v. rent." But here there was a nuls- Schmltt, 147 N. Y. 248, 41 N. B. 514, ance in the cellar under the premises 49 Am. St. Rep. 659. So in Alger v. leased, and the court was merely Kennedy, 49 Vt. 109, 24 Am. Rep. stating that such a condition of ad- 117, it is said that "any act or de- joining premises constituted an evic- fault of the lessor that renders the tion, although the landlord did not tenement such as endangers the life himself produce the noxious condi- or health of the occupants may be tion but merely neglected to remove treated as an eviction, and give him it. the right to abandon the premises. § 185 BY LANDLORD. 1273 rightful or wrongful. In some cases what is, it is submitted, a more correct conception of the nature of an eviction in this re- spect has been asserted.^^ Thus, it has been decided that the fact that the landlord is guilty of a breach of covenant to fur- nish certain facilities in connection with the demised premises does not involve an eviction,^^ and a like decision has been made as to the breach of a covenant to repair.^o So the fact that the premises are infested by vermin, and that the landlord has taken no measures to remove them, has been recognized as not involv- ing an eviction. •'59'^ (5) Occupation by landlord on tenant's abandonment. The mere fact that the tenant has temporarily vacated the premises gives the landlord no right to resume possession,^^ and if the latter does resume possession, with the effect of preventing the tenant's return, this no doubt constitutes an eviction.^i If, how- ever, the vacation of the premises by the tenant is intended to be permanent, if they are "abandoned" by him, as it is fre- 5T "The common-law doctrine of failure of the landlord to perform eylction has reference to affirmative his covenant to build a raceway for acts of the landlord or of a third the use of the tenant was held not to person under a title paramount to be an eviction. the landlord's. There must be a sa Speckels v. Sax, 1 E. D. Smith forcible ouster of the tenant, or such (N. Y.) 253; Huber v. Ryan, 26 Misc. an unlawful interference with his 428, 56 N. Y. Supp. 185; Hallett v. beneficial use of the demised prem- Wylie, 3 Johns. (N. Y.) 44, 3 Am. ises as amounts to a permanent sub- Dec. 457; Wright v. Lattin, 38 111. stantial impairment of it. * * * 293. "It can hardly be necessary to It seems a confusing mistake to con- say that the failure of the lessor to sider the statute (of 1860) as an make the repairs stipulated in the enlargement of the law of eviction, lease would not in itself amount to The law of eviction is as it was be- constructive eviction." Biggs v. Mc- fore the statute was passed." Per Curley, 76 Md. 409, 25 Atl. 466. Gaynor, J., in Huber v. Ryan, 26 soa Pomeroy v. Tyler, 9 N. Y. St. Misc. 428, 56 N. Y. Supp. 135. Rep. 514; Jacobs v. Morand, 110 N. 58 In Watts V. Coffin, 11 Johns. (N. Y. Supp. 208. Y.) 495, it was decided that the ten- go Hough v. Brown, 104 Mich. 109, ant's deprivation by the landlord of 62 N. W. 143; Larkin v. Avery, 23 a right of common in adjoining land. Conn. 304; Chancey v. Smith, 25 W. which was secured merely by a cov- Va. 404, 52 Am. Rep. 217. enant and not by a grant, was not ei See Briggs v. Thompson, 9 Pa. an eviction, it not being a part of 338; Day v. Watson, 8 Mich. 535, and the thing demised. In Btheridge v. ante, note 45. Osborn, 12 Wend. (N. Y.) 399, the 1274 EVICTION. § 185 quently expressed, the landlord may, it seems, resume posses- sioii.62 Since this is not wrongful, while an eviction by the landlord is always a wrongful act on the latter 's part, it is not proper to term such resumption of possession after the tenant's abandonment an eviction, though this has occasionally been done.63 It may, and frequently does, result in a surrender by operation of law, as is elsewhere explained,^* and so terminates the right to subsequently accruing rent, and this effect on the right to rent constitutes its point of resemblance to an eviction. (6) Subsequent lease or other conveyance. There are occa- sional dicta and decisions to the effect that if the landlord, dur- ing the existence of the tenancy, makes a lease to another person, this effects an eviction of the tenant.^^ These are, it is submitted, incorrect. If the first lease is still out- standing and the second lessee has notice thereof, which he generally has, either by the tenant's possession or otherwise, the second lease is in effect nugatory as regards the first tenant.^^ If, on the other hand, the second lessee has no notice of the first 62 Packer v. Cockayne, 3 G. Greene thorne v. Coursen, 18 Misc. 447, 41 (Iowa) 111; Haller v. Squire, 91 N. Y. Supp. 995; Smith v. Maxfield, Iowa, 10, 58 N. W. 921; Kiplinger v. 9 Misc. 42, 29 N. Y. Supp. 63; Hirsch- Green, 61 Mich. 340, 28 N. W. 121, field v. Franks, 112 Mich. 448, 70 1 Am. St. Rep. 584; Duffy v. Day, 42 N. W. 894 (semble) ; Hall v. Bur- Mo. App. 638; Torrans v. Stricklin, gess, 5 Bam. & C. 332, per Holroyd, J. 52 N. C. (7 Jones L.) 50; McKinney In Harrington v. Hall, 126 Mich. 704, V. Reader, 7 Watts (Pa.) 123; Pier 86 N. W. 153, it is apparently de- V. Carr, 69 Pa. 326. cided that a subsequent demise to 63 See Matthews' Adm'r v. Tobe- another person gives a right to the ner, 39 Mo. 115; Hall v. Burgess, 5 tenant under the existing demise to Barn. & C. 332; Hegeman v. McAr- recover rent paid by him in ad- thur, 1 E. D. Smith (N. Y.) 147. vance. There is no discussion and That such resumption of possession the term "eviction" is not used. does not involve an eviction, see That such a subsequent demise is Smith v. Billany, 4 Houst. (Del.) not an eviction, see Carey v. Bost- 113; State v. McClay, 1 Har. (Del.) wick, 10 U. C. Q. B. 156; Neale v. 520; Humiston, Keeling & Co. v. Mackenzie, 1 Mees. & W. 747. Wheeler, 175 111. 514, 51 N. E. 893, An attempt to lease to a third 67 Am. St. Rep. 232; Wheeler v. person is not an eviction. Mills v. Stevenson, 6 Hurlst. & N. 155. Sampsel, 53 Mo. 360, even though 64 See post, § 190 c. such person be a subtenant of the ecMorris v. Kettle, 57 N. J. Law, original lessee. Ogilvie v. Hull, 5 218, 30 Atl. 879; Dolton v. Sickel, 66 Hill (N. Y.) 52. N. J. Law, 492, 49 Atl. 679; Haw- ee See ante, § 146, at note 1. c jg5 BY LANDLORD. 1275 lease, either by the tenant's possession or otherwise, the second lease would ordinarily take priority .^-^ In this latter case there is some slight basis in precedent for regarding the making of the second lease as an eviction, arguing by analogy from occa- sional decisions in which it has been held that there is an evic- tion, constituting a breach of the covenant for quiet enjoyment on a conveyance in fee, if the grantor makes a second convey- ance which takes priority over the first because first recorded.^^ These latter cases have, however, been criticized by high au- thority,6o and the view asserted by them has been repudiated by other courtsjo a lessor or his transferee has a perfect right, during the continuance of the term, to make another lease to another person, such lease to take effect either as a concurrent lease or as one in reversion,"^! and the fact that, owing to the first lessee's failure to take proper precautions, by securing posses- sion or recording his lease, the second lease takes precedence over the first lease, is no reason, it is conceived, for treating the second lease as a wrongful act, which it must be in order to constitute an evictionj^ If the second lessee ousts the first lessee, this is not the act of the lessor, unless he has connived at or directed it. If the sec- ond lease is a concurrent lease, such act on the part of the second lessee is an eviction by the landlord, since such second lessee is the landlord, but if, as usually is the case, the second lease is a lease in reversion, such act is by a stranger to the first lease, and is not, properly speaking, an eviction. But, as suggested above, if the ouster by the second lessee is by the connivance or direction of the lessor, then it may be regarded as having been by him, and is, properly speaking, an eviction.'^s Occa- sionally an ouster by the second lessee has been regarded as an eviction by the lessor without any evidence of complicity on the part of the latter, that is, the lessor was regarded as guilty of an eviction because he leased to another, who took possession.'^^ 67 See ante, § 146. at note 4. 71; Scott v. Scott, 70 Pa. 244; Foster 68 See Curtis v. Deering, 12 Me. v. Woodward, 141 Mass. 160, 6 N. B. 499; Maeder v. City of Carondelet, 26 853. Mo 112 69 Am. Dec. 483; Lukens v. 7i See ante, § 146 d. Nicholson, 4 Phila. (Pa.) 22. ^^ See ante, § 146 a, at notes 7. 8. 69Rawle, Covenants for Title (5th 73 Halligan v. Wade, 21 111. 470, 74 Ed.) p. 168, note 5. Am. Dec. 108. 70 Wade V. Comstock, 11 Ohio St. 74 Wright v. Lattin, 38 111. 293; 1276 EVICTION. § 185 As before stated, the mere leasing does not properly constitute an eviction, and it is difficult to see how the lessor can be held responsible for the act of the second lessee, unless he has ad- vised or directed it, or, perhaps, has made the second lease with knowledge of the action intended by the second lessee. That the lessor is not responsible for the act of one to whom he con- veys the premises in fee subject to the lease has been clearly decided,'''^ and he should no more be held responsible for the acts of one to whom he conveys a less interest, be it an interest for life, for ninety-nine years, or for one year only. Occasionally it is said that there is an eviction by the lessor if he "puts the second lessee into possession, "'"^ and this is no doubt correct if "putting into possession" means turning out the prior lessee, or authorizing the second lessee so to do. The making of a subsequent lease by the landlord to another person is usually the sequence of an abandonment of the prem- ises by the tenant under the first lease, and while in a few cases this is spoken of as an "eviction" of the previous tenant,'^'^ more usually it is regarded as involving merely an acceptance of the tenant's previous relinquishment of possession, thus effecting an implied surrender,'^^ while in many jurisdictions it has not even this effect. The action of the landlord in re-letting after the abandonment is not a wrongful act, and consequently should not be termed an eviction. If the tenant expressly or tacitly consents to the making of a new lease to another, he can evidently not assert that the mak- ing of such lease involves an eviction.'^^ Morris v. Kettle, 57 N. J. Law, 218, eviction, citing Morris v. Kettle, 57 30 Atl. 879. N. J. Law, 218, 30 Atl. 879, where it 75 Gribbie v. Toms, 70 N. J. Law, was said that if "the tenant has va- 522, 57 Atl. 144; Id., 71 N. J. Law, cated and abandoned the premises, 338, 59 Atl. 1117; Linton v. Hart, 25 an eviction by such reletting is con- Pa. 193, 64 Am. Dec. 691. structive merely, and should, within 76 Miller v. Michel, 13 Ind. App. the reason of the rule, impose upon 190, 41 N. B. ^Q7; Schneider v. Pat- the landlord no other penalty than terson, 38 Neb. 680, 57 N. W. 398. that of crediting the tenant with the 77 Hall V. Burgess, 5 Bam. & C. sum so earned by the property dur- 332; Matthews v. Tobener, 39 Mo. ing the term." Compare Meeker v. 115; Rice v. Dudley, 65 Ala. 68. In Spalsbury, 66 N. J. Law, 60, 48 Atl. Dolton V. Sickel, 66 N. J. Law, 492, 1026. 49 Atl. 679. it was decided that leR-S- 78 See post, § 190 C. ing to another after abandonment by 7n Stewart v. Sprague, 71 Mich. 50, the former tenant constituted an 38 N. W. 673; Id., 76 Mich. 184, 42 § 1S5 BY LANDLORD. 1277 There is one decision to the effect that the making of a con- veyance in fee by the landlord, without any clause therein recog- nizing the rights of the tenant under the existing lease, involves an eviction of the tenant.*^"^ The same considerations are here applicable as in connection with the theory of an eviction by a subsequent lease.^i It seems never to have been suggested, ex- cept in this one case, that a conveyance in fee by a lessor, with- out mention of an outstanding lease, effects an eviction, and such a conveyance must have been of frequent occurrence. There is no reason, it is submitted, why an eviction should result from the act of the landlord in doing what he has a perfect right to do, that is, in transferring his reversionary interest, and no further interest can pass by the conveyance if the grantee has notice, actual or constructive, of the lease. If he has no such notice, the conveyance presumably takes priority over the lease, but this is owing to the tenant's failure to protect his interest, either by taking possession or by recording the lease.^^ (7) Unaiithorizsd demand for possession. It has occasion- ally been decided that if the landlord notifies the tenant, before the termination of the tenancy, to relinquish the possession, and the tenant complies with the demand, this constitutes an evic- tion.s^ This view is not, however, entirely satisfactory. An N. W. 1088; Ogden v. Sanderson, 3 not an eviction by the landlord. Sul- E. D. Smith (N. Y.) 166; Pausch v. livan v. Beardsley, 55 Cal. 608. Guerrard, 67 Ga. 319; Thomas v. 83 starkweather v. Maginnis, 98 Drennan, 112 Ala. G70. 20 So. 848; m. App. 143; Id., 196 111. 274, 63 N. Lettick V. Honnold, 63 111. 335. e. 692; Tarpy v. Blume, 101 Iowa, so Mathews v. People's Natural 469, 70 N. W. 620; Greton v. Smith, Gas Co., 179 Pa. 165, 36 Atl. 216 (oil 33 n. Y. 245 (semble); Watson v. and gas lease). Moggey, 15 Manitoba, 241. So in 81 See ante, notes 65-75. Jennings v. Bond, 14 Ind. App. 282, 82 That such a conveyance does 42 N. E. 957, where the demand for not involve an eviction, see Gribbie possession took the form of a suit y. Toms, 70 N. J. Law, 522, 57 Atl. therefor to which the tenant yielded. 144; Id., 71 N. J. Law, 338, 59 Atl. In Amsden v. Atwood, 69 Vt. 527, 38 1117; Blythe v. Pratt, 62 Miss. 707; Atl. 263, it was decided that if a Life v. Secrest, 1 Ind. 512. landlord orders his tenant to vacate On the same principle, the land- before the expiration of the term, lord's assent to a decree in favor of and the tenant does so, the landlord a third person, which could not is liable for the value of the unex- alTect the lessp« because he took the pired portion of the term. The court lease without notice of the suit, is does not call this an eviction, but 1278 EVICTION. § 185 eviction involves a wrongful act upon the part of tlie landlord, but there is no legal wrong involved in his making this unjusti- fiable demand for possession, however morally improper it may be, and the fact that the tenant acts as if it were justified can- not well change its character in this respect. The case is like that of any other unjustifiable demand for the possession of property to which the possessor is foolish enough to yield. If a grantor in fee were to demand possession of the land granted, or even if he were to sue therefor, and the grantee were to yield possession, there is no authority for saying that this is an evic- tion, giving a right of action on the grantor's covenant for title, and it does not seem that under the circumstances a lessee could sue his lessor on the covenant for quiet enjoyment, which he should be able to do if such transaction constitutes an eviction. We would prefer to regard this as a case of implied surrender, based on a relinquishment of possession to the landlord by agree- ment of the parties, and such it seems to have been, in other cases, decided to be.^* Somewhat similar to the cases above criticised is one in which the landlord, having the right to terminate the tenancy when he desired to put an end to the use of the premises for the par- ticular purpose for which they were used by the tenant, obtained the premises from the tenant by falsely stating to the latter that such was his desire, this being regarded as an eviction by the landlord.*^ We would prefer to regard this as a case of fraud.^^ presumably that is what Is meant. 60 Pac. 1009, 82 Am. St. Rep. 749. The authorities cited do not seem to Here the landlord falsely stated that sustain the decision. That a wrong- he no longer desired the premises to lul demand for possession, acceded be used for hop culture, and after to by the tenant, does not Involve an thus obtaining possession used them eviction, is decided in Greenberg v. himself for that purpose. The ac- Murphy, 26 Ohio Cir. C. R. 359. tion was for damages. In Lierz v. Morris, 19 Pa. Super. se In Davis v. Schweikert, 130 Cal. Ct 73. it was apparently decided 143, 62 Pac. 411, the lessee covenant- that, if the lessor induces the lessee ed to yield possession in case the to leave the premises by false rep- premises were sold, and the lessee, resentalions that the lessor's estate having yielded possession upon the has come to an end, the lessee may transfer of the property by the land- recover damages as for an eviction, lord, afterwards brought suit on the 84 See post, § 190 c, at notes 151- ground that the transfer was merely ■^^^ colorable for the purpose of depriv- 8B Salzgeber v. Mickel, 37 Or. 216, ing him of possession. Here the § 185 BY LANDLORD. 1279 (8) ^Injurious conditions on adjoining premises. The ques- tion whether acts of the landlord in improving or utilizing in a particular way premises belonging to him adjoining the prem- ises leased, or failing so to utilize them, can constitute an evic- tion, when they result in the tenant's relinquishment of posses- sion, involves a number of considerations. There is, as before stated, a general rule that a grantee or lessee is entitled to an easement in land retained by the grantor or lessor corresponding to a pre-existing quasi easement,^'^ and any utilization by the lessor of land retained by him in such a way as to interfere with the lessee's enjoyment of such an ease- ment may well be regarded as a constructive eviction. Thus, if one makes a lease of land on which there is a building, which depends for support on a building on adjoining land belonging to the lessor, an easement of support is created in favor of the leased property ,^^ and any interference by the lessor with such easement may well be regarded as an eviction, if this affects the lessee's enjoyment, and he relinquishes possession on account thereof.^^*^ The same would be the case if there were an express grant of an easement by the lessor to the lessee. Furthermore, in some jurisdictions at least, the doctrine that a grantor can- not derogate from his own grant may apply so as to create in the lessee an easement in adjoining property retained by the grantor, restricting the uses of the latter to such as may be made without interfering with the use of the premises leased for the purpose for which they were leased,^^ and a use of such adjoining property in another way might so interfere with the use of the premises leased as to justify the lessee in relinquish- ing possession and asserting an eviction. The general rule in this country is that there is no implied grant, upon a conveyance or lease of premises, of an easement to have light and air pass without interruption over adjoining land retained by the grantor or lessor,^*^ and consequently an evic- term "eviction" is not used, and the N. Y. 263, 36 N. E. 1059, post, note action appears to be rather one for 217. deceit. ^s Grosvenor Hotel Co. v. Hamilton 87 See 1 Tiffany, Real Prop. § 317, [18941 2 0. B. 836. See ante, § 128, and ante, § 128, at notes 21-31. at notes 33, 34. 88 See ante, § 128 a, at note 29. oo See ante, § 133. See, also, Keat- 88a Compare Snow v. Pulitzer, 142 ing v. Springer, 146 111. 481, 34 N. E. 128'J EVICTION. § 185 .» tion cannot usually be asserted by a lessee because his lessor im- proves adjacent land in such a way as to cut off the light and air.^i In the case of a lease of a room in a building, however, light and air for which room must necessarily pass over another part of the building, a different rule might possibly obtain, and an obstruction of the light or air by the landlord be regarded as an eviction, if the tenant relinquishes possession on account thereof.92 Without interfering with any easement created by express or implied grant, the landlord may create such a state of things upon adjacent or neighboring premises that the tenant is justi- fied in abandoning them, thus effecting an eviction. Such is the case if the landlord discharges water, dirt or filth from adjoin- ing premises on those leased to such an extent that the con- tinued occupation by the tenant is rendered seriously uncomfort- able or unhealthy ,^3 or if he creates a noise and vibration by operations on the adjoining premises with like results.^^ So in 805, 22 L.. R. A. 544, 37 Am. St. Rep. So in Jackson v. Eddy, 12 Mo. 209, l75; 1 Tiffany, Real Prop. § 317. the tenant of a store was lield to be 91 Keating v. Springer, 146 111. 481, justified in leaving when his goods 34 N. E. 805, 22 L. R. A. 544, 37 Am. were continually being damaged by St. Rep. 175; Royce v. Guggenheim, drippings from goods stored by the 106 Mass. 201, 8 Am. Rep. 322; landlord on an upper floor. And Solomon v. Fantozzi, 43 Misc. 61, 86 see Alger v. Kennedy, 49 Vt. 109, 24 N. Y. Supp. 754; Palmer v. Wetmore, Am. Rep. 1171, a case of water in a 4 N. Y. Super. Ct. (2 Sandf.) 316; cellar below the premises leased, re- Myers V. Gemmel, 10 Barb. (N. Y.) ferred to ante, note 56. 537; Johnson v. Oppenheim, 12 Abb. 9* See Coope v. Kollstade, 33 Misc. Pr. (N. S.) 454, 43 How. Pr. (N. Y.) 113, 67 N. Y. Supp. 181, where it was 433; Dimmock v. Daly, 9 Mo. App. held to be for the jury whether the 354. But see dictum to the contrary noise from a pump used by the lessor in Hazlett v. Powell, 30 Pa. 293, with on adjoining premises "was a nuis- which compare Rennyson's Appeal, ance so as to effect an eviction." In 94 Pa. 147, 89 Am. Rep. 777. Wade v. Herndle, 127 Wis. 544, 107 92 See ante, § 133, at notes 73-77. N. W. 4, it was held that an eviction In Herpolsheimer v. Funke, 1 Neb. occurred when the tenant was com- Unoff. 471, 95 N. W. 688, it is decided pelled to leave by the vibration that the action of the landlord in caused by the use of adjoining prem- placing an obstruction In front of ises, belonging to the same lessor, show windows in the part of the for automobile purposes. In this building leased constituted an evic- case the lease of the adjoining prem- tion. is^s '^^s the last one made, and it 93 Sully V. Schmitt, 147 N. Y. 248, was held that the landlord's responsi- 41 N. E. 514, 49 Am. St. Rep. 659. bility for the vibration depended on § 185 BY LANDLORD. l28l the case of the lease of an apartment in a bnildmg, if the lessor fails to properly manage or repair pipes, drains av other plumb- ing in other parts of the building within his control, so as ser- iously to affect the enjoyment of the leased premises, and the tenant leaves on account thereof, there is, it has been decided, a constructive evietion.^'*''^ The condition on adjoining premises which, when created by the landlord, may thus result in an evic- tion, has been spoken of as a " nuisance, "^^ and this, it seems, is a proper standard by which to determine whether such a condi- tion may so result ; that is, if the condition is such that it would constitute a nuisance as against a stranger, had he been occu- pying the premises leased, it is a cause for abandonment of such premises by one who occupies as tenant under the person creat- ing the condition. There is, however, a decision, though not by the highest court of the state, that if one who has leased a part of a building for a florist's shop thereafter leases another part for a laundiy, which would render it impossible to maintain the whether this was a necessary or ference with the beneficial enjoy- usual result of their use for an auto- ment thus caused is merely an iso- mobile shop. Presumably, the sec- lated occurrence and not long con- ond lease was made with knowledge tinued. Pinck v. Rogers, 30 Misc. of the intended use, but this is not 123, 61 N. Y. Supp. 866. stated. S'iaMcCurdy v. Wyckoff, 73 N. J. In Donovan v. Koehler, 119 App. Law, 368, 63 Atl. 992; Bradley v. De Div. 51, 103 N. Y. Supp. 935, the Goicouria, 12 Daly (N. Y.) 393, 67 maintenance of a bowling alley un- How. Pr. 76; St. Michael's Protestant der the leased premises all day and Episcopal Church v. Behrens, 10 all night so as seriously to interfere N. Y. Civ. Proc. R. 181; Lathers v. with their enjoyment by the les- Coates, 18 Misc. 231, 41 N. Y. Supp. sees was held to constitute an evic- 373; Marks v. Dellaglio, 56 App. Div. tion. 299, 67 N. Y. Supp. 736; Id., 32 Misc. In McLaughlin v. Bohm, 20 Misc. 94, 65 N. Y. Supp. 502. See Novem- 338, 45 N. Y. Supp. 745, it was held ber v. Wilson, 49 Misc. 533, 97 N. Y. that the operation of a properly con- Supp. 989. structed pump in the cellar of an 95 Sully v. Schmitt, 147 N. Y. 248, apartment house did not justify the 41 n. E. 514, 49 Am. St. Rep. 659; tenant of an apartment in leaving, Coope v. Kollstade, 33 Misc. 113, 67 though the pump was audible in the n. Y. Supp. ISl; Marks v. Dellaglio, apartment, the lower court having 56 App. Div. 299, 67 N. Y. Supp. 736; found that there was no particular id., 32 Misc. 94, 65 N. Y. Supp. 502; vibration caused by the pump. McCurdy v. Wyckoff, 73 N. J. Law^ There is no eviction if the inter- 368, 63 Atl. 992. L. and Ten. 81. 1282 EVICTION. § 185 florist's shop, he is guilty of a constructive eviction, alt&^ough the laundry does not constitute a nuisance.^*^ There may be, it has been held, an eviction of the tenant of part of a building if he is compelled to leave by the use of other parts of the building, with the la.ndlord's consent, for purposes of prostitution or gambling, or for other purposes calculated to cast disrepute upon tenants of the building, and to render it an unfit place for residence or the conduct of business.^"^ Such use may be by the landlord himself, or by other persons with his permission, during his possession of such other parts, or it may be by persons to whom he has leased such other parts with knowledge that they will make such use thereof. The doctrine of these cases has, it is true, been criticised,^^ but it accords with the principle, suggested by the cases above referred to, that any use of adjoining premises by the lessor which can be regarded as a nuisance will, if it results in the tenant's relin- quishment of possession, constitute an eviction, and it seems to provide but a proper degree of protection to the tenant. Such improper use of adjoining premises by other tenants of the same landlord is not, however, sufficient to constitute an eviction, although followed by the tenant's abandonment of possession, if the landlord had no reason to suspect, at the time of making the lease to them, that they would be guilty of such improper ee Duff V. Hart, 40 N. Y. St. Rep. 727, has been spoken of as an ex- 676, 16 N. Y. Supp. 163. treme case in Gilhooley v. Washing- 97 Dyett V. Pendleton, 8 Cow. (N. ton, 4 N. Y. (4 Comst.) 217; Ethe- Y.) 727; Lay v. Bennett, 4 Colo. App. ridge v. Osborn, 12 Wend. (N. Y.) 252, 35 Pac. 748; Rowbotham v. 532; Vanderbilt v. Persse, 3 E. D. Pearce, 5 Houst. (Del.) 135; Weiler Smith (N. Y.) 428; Ogilvie v. Hull, V. Pancoast, 71 N. J. Law, 414, 58 5 Hill (N. Y.) 54. Atl. 1084; Stewart v. Forst, 15 Misc. In Molineux v. Hurlburt, 79 Conn. 621, 37 N. Y. Supp. 215. See, as ap- 243, 64 Atl. 350, 2 L. R. A. (N. S.) proving, Dyett v. Pendleton, 8 Cow. 531, the tenant's allegations as to the (N. Y.) 727; Edgerton v. Page, 20 use of the adjoining apartment by N. Y. 281 ; Home Life Ins. Co. v. the landlady for the reception of a Sherman, 46 N. Y. 370; Jackson v. male guest were held to be insuflS- Eddy, 12 Mo. 209. cient to show an improper use ther& 98 Royce v. Guggenheim, 106 Mass. of by her, even conceding that such 201, 8 Am. Rep. 322; De Witt v. Pier- use could justify the tenant in leav- son, 112 Mass. 8, 17 Am. Rep. 58. ing. Dyett V. Pendleton, 8 Cow. (N. Y.) . ^g^ BY LANDLORD. 1283 use, he having no greater power than the tenant subsequently to prevent it.^^ There are several eases which apparently assert a doctrine that there is an eviction if the lessor, after having made the lease, discontinues the use which he was making of the adjoining premises at the time of the lease, so as to render the leased prem- ises less desirable for the purpose for which the lessees obtained the lease.io" So far as these cases assert that a mere failure to make a certain use of adjoining premises constitutes an evic- tion, they are, it is submitted, erroneous, on the principle be- fore asserted, that a mere omission by the landlord to act, as distinct from an act of commission, cannot be an eviction.^o^ In some eases, under the modern doctrine of equitable easements, the lessee might assert that the lease to him was part of a com- mon scheme of improvement, and so obtain an injunction against a change in the use of the adjoining premises,io2 but this, be- ing a purely equitable doctrine, could not be the basis for a 99 Townsend v. Gilsey, 31 N. Y. tered into an implied contract to Super Ct (1 Sweeny) 155; Gil- keep a market during the term. In hooley V. Washington, 4 N. Y. (4 Coulter v. Norton, 100 Mich. 389, 59 Comst ) 217; De Witt v. Pierson, 112 N. V/.-163, 43 Am. St. Rep. 458, there Mass 8, 17 Am. Rep. 58; Cougle v. was held to be an eviction of the Densmo're, 57 111. App. 591. tenant of a cigar stand in a hotel 100 In Conlon v. McGraw, 66 Mich, for which damages could be recov- 94 33 N. W. 388, the court held that ered on the covenant of quiet enjoy- there was an eviction of the tenant ment when the hotel was closed for of part of a building if the owner lack of business. In Halligan v. of the building destroyed other parts Wade, 21 111. 470, 74 Am. Dec. 108, of the building, when the effect was it was decided that, if one portion of to diminish the number of the ten- a building was leased for a hotel, the ant's customers. In Denison v. owner could not lease other portions Ford, 7 Daly (N. Y.) 384, it was held of the building for a saloon and a that the tenant of a "market stand" tinshop, thereby affecting the avail- was evicted when the landlord and ability of the other portion for use owner of the market building, find- as a hotel, and that there was an ing it unprofitable, induced the other eviction if he did so. tenants to surrender their stands, loi See ante, § 185 f (4). and the tenant in question having re- That the change of an office build- fused to do so, the landlord extin- ing into a hotel does not involve the guished the lights except those of eviction of a tenant of an office, that stand and closed all the doors though it makes it unsuitable for his except that in front of it. Tho purposes, see Tucker v. Du Puy, 210 courts here says that in letting a Pa. 461, 60 Atl. 4. stand in the market the lessor en- 102 See ante, § 131. 1284 iuviCTiON. § 185 fijiding of a constructive eviction. The doctrine suggested, if not directly asserted, by the cases referred to above, that one who leases property is bound not to cha.nge the use of the ad- joining property, if such use is advantageous to the leased prem- ises, seems possibly productive of considerable hardship to the lessor. And it may be asked, what are the limits to the appli- cation of the doctrine. Does it apply to a lease for a long term of years? Does the obligation on the lessor that the use of the adjoining premises shall not be changed continue in case he transfers such premises to another, so that a discontinuance of the use by such other will constitute an eviction of the tenant? And, if the reversion in the leased premises is transferred, may the transferee be deprived of rent by the act of the lessor in dis- continuing the former use of the adjoining premises? Ques- tions of this character may be difficult, if not incapable, of satis- factory solution. And the policy of recognizing any rights in the lessee as to the use of adjoining premises, other than such as may be based on the existence of an easement in his favor and on his right to immunity from the creation of a nuisance, is, it is submitted, open to serious question. A grantee in fee has no such other rights as to the use of adjoining premises re- tained by his grantor unless he has the foresight to insert special stipulations to that effect, and it is not perceived why a grantee for years should be in any better position. The cases previously cited, to the effect that the lessee may, by erecting a building on adjoining premises, cut off the light and air from those leased, seem opposed to any such rule in favor of a tenant under a lease. A condition on adjoining premises, created by another tenant under the same lessor, but not such as the latter could have an- ticipated, and in no way connived at or authorized by him, can- not be asserted by the tenant as constituting an enaction. 102a (9) Threats and annoyances by landlord. Occasionally an eviction has been regarded as taking place when the tenant re- linquished possession owing to abusive or threatening language on the part of the landlord or his representatives, or because of petty annoyances and indignities, intentionally caused to the former by the latter, making the continuance of the occupancy losa FYench v. Pettingill, 128 Mo. and cases cited ante, note 99, and App. 156, 106 S. W. 575; MoKinney post, note 201. V. Browning, 110 N. Y. Supp. 562, - .gK BY LANDLORD. 1285 impleasant and uneomfortable.io^ Evidence of the repeated doing of such acts might, it is conceived, properly be submitted to the jury to determine whether they are of such *'a grave and permanent character" as to constitute an eviction, but it would hardly seem that one or two isolated acts of this character should be given this effect.io^ if the conduct of the landlord can be construed as a demand for possession, and the tenant yields possession in consequence thereof, the case may be re- garded, it seems, as one of surrender by operation of law^^^ rather than as one of eviction. The assertion by the landlord of reasonable objections to the making of particular alterations by the tenant obviously does not involve any element of an eviction.io^ 103 There was held to be an evic- and his action in listening to her tion where the tenant left the prem- conversations at the telephone, ises after threats on the landlord's might justify the tenant in leaving part to forcibly dispossess him, the and asserting an eviction, postin- by the latter of notices "to In Ewing v. Cottman, 9 Pa. Super, lease" "on the premises and attempts Ct. 444, it was held that remarks by by him to lease to others. Greton the landlord to persons boarding in V Smith, 33 N. Y. 245. Compare the house, derogatory to the charac- Ogilvie v'huII, 5 Hill (N. Y.) 52. ter of the house as "kept" by the In Wyse v. Russell, 16 Misc. 53, 37 tenant, did not effect an eviction, N Y. Supp. 683, the landlord was since they did not prevent the ten- disagreeable and discourteous, made ant from enjoying the house to its unreasonable demands on the ten- full capacity; and in another case it ant and finally assaulted the ten- was held to be no defense to a claim ant' and told him he "must go," for rent that certain of the tenant's whereupon the tenant left, and there lodgers left because of the use by was held to be an eviction. the landlord of boisterous language In Cohen v. Dunont. 3 N. Y. Super, in addressing the tenant. Fish v. Ct (1 Sandf ) 260, it was held that Ryan, 88 111. App. 524. In the latter there was an eviction of a tenant case there is no mention of eviction, when he left owing to the infliction and the tenant retained possession, on him by the landlord's family of lo* A single assault on the tenant petty annoyances, such as abuse of or on his servant has been held not himself his family and his business to constitute an eviction. Haas v. visitors' the dirtying of the halls Ketcham, 87 N. Y. Supp. 411; Vatel and stairways, and the muffling of v. Herner, 1 Hilt. (N. Y.) 149. his door bell. And in Fox v. Mur- los See post, 190 c, at note 151. dock, 58 Misc. 207, 109 N. Y. Supp. loe Whitcojub v. Brant (N. J. Law) 108 it was intimated that the au- 68 Atl. 1102. thorized action of the landlord's rep- That the landlord objected to the resentative in making slanderous re- erection of a building by the tenant marks concerning the tenant's wife, in accordance with a stipulation m 1286 EVICTION. § 185 (10) Interference with subtenant. "Where the lease does not forbid the lessee to sublet, the action of the landlord in refusing to allow a subtenant to enter on the premises has been regarded as an eviction of the tenant/^'' and the same view has been taken of his action in expelling the subtenant^*''^ and in forcing the subtenant to pay rent to him instead of to the tenant.^^^-^^® (11) Making of repairs. As elsewhere stated,m the land- lord has ordinarily no right, in the absence of special stipula- tion and without the tenant's consent, to enter on the premises to make repairs. Usually, when the landlord enters for such a purpose, he does so under authority given by the lease,!^^ qj. i^y permission given by the tenant, either express ^^^ or inferred the lease; that he notified a dealer had thereafter transferred the rever- who had agreed to furnish tbe lum- sions in fee, reserving rent, was held ber that he, the landlord, would not to have evicted his grantee, and so pay therefor, and threatened to suspended the rent reserved on the prosecute the tenant's employes if conveyance, by distraining for the they proceeded with its erection, was rent reserved on the prior leases, held not to involve a "breach of the not he, but his grantee, being en- tease." Buhler v. Smith, 130 Wis. titled to such rent. 488, 110 N. W. 412. By the latter m See ante, § 3 b (2), at notes expression is presumably meant an 35-39. eviction. ^i- International Press Ass'n v. lOT Randall v, Alburtis, 1 Hilt. (N. Brooks, 30 111. App. 114. In Waite v. Y.) 285; Doran v. Chase, 2 Wkly. O'Neil, 22 C. C. A. 248, 76 Fed. 408, Notes Cas. (Pa.) 609, referred to in 34 L. R. A. 550, it was held that the Hoeveler v. Fleming & Co., 91 Pa. reservation, on the lease of a "land- 322. See Rowbotham v. Pearce, 5 ing" of the right to make such re- Houst. (Del.) 135. pairs as might be necessary for the los Burn v. Phelps, 1 Starkie, 94. security and preservation of the 109, 110 Leadbeater v. Roth, 25 111. premises, did not give the right to 587; Burhans v. Monier, 38 App. Div. construct works in the river which 466, 56 N. Y. Supp. 632. would make the landing useless, and The bringing of ejectment by the that the construction of such works original landlord against his ten- was an eviction. ant, who had subleased, is not an us Cook v. Anderson, 85 Ala. 99, eviction, when the landlord advises 4 So. 713; Ludington v. Seaton. 32 the subtenant to continue paying Misc. 736, 66 N. Y. Supp. 497; Rob- rent to the tenant pending the suit, inson v. Henaghan, 92 111. App. 620; Agar V. Winslow, 123 Cal. 587, 56 Ferguson v. Troop, 17 Can. Sup. Ct. Pac. 422, 69 Am. St. Rep. 84. 527; Days v. I>oyle, 99 Ga. 62, 24 S. In Lewis v. Payn, 4 Wend. (N. Y.) E. 405; Peterson v. Edmondson, 5 423, one who had leased portions of Har. (Del.) 378. his farm to different persons and § 185 BY LANDLORD. 1287 from his tacit acquiescence/ ^^ and in such cases there can be no eviction.ii^ If, however, he enters and makes repairs or rebuilds without any such authority or permission, this may in- volve such an absolute exclusion of the tenant from the demised premises or a part thereof as to cause an ''actual" eviction in whole or in part, or he may thereby so substantially interfere with the tenant's possession and enjoyment as to justify the latter in relinquishing possession of the whole or a part of the premises, this constituting a ''constructive" eviction.^^^ It has been decided that the mere fact that the tenant fails to object to the making of repairs or improvements by the land- lord, or that he pays rent after the commencement thereof, does not necessarily show a consent thereto on the tenant's part.^^''' "Whether there is, in any particular case, an oral consent to the repairs, or whether a consent is to be inferred from conduct, would, it seems, be a question for the jury on the evidence.^^^ In case the lease is of a building alone or of a part of a building, the tenancy comes to an end on the destruction there- of,i^^ and consequently a subsequent entry on the land by the landlord in order to rebuild cannot be an eviction.i^o There are 11* Barnum v. Fitzpatrick, 27 Abb. & Malting Co., 57 Misc. 430, 108 N. N. C. 334, 16 N. Y. Supp. 934; Camp- Y. Supp. 237, it was held that the bell V. Shields, 11 How. Pr. (N. Y.) landlord was not guilty of an evic- 565; Phillips & Buttorff Mfg. Co. v. tion because he nailed boards over "Whitney, 109 Ala. 645, 20 So. 333; broken windows to protect the prop- Smith V. McLean, 22 111. App. 451; erty, the building having been left Rosenbloom v. Finch, 37 Misc. 818, unoccupied, and the lease authoriz- 76 N. Y. Supp. 902. ing the lessor to enter to make re- us Cook V. Anderson, 85 Ala. 99, 4 pairs and requiring the lessee to pre- So. 713; Peterson v. Edmonson, 5 vent waste. Har. (Del.) 378; Barnum v. Fitzpat- us See Wait v. O'Neil, 47 U. S. rick, 27 Abb. N. C. 334, 16 N. Y. App. 19, 76 Fed. 408, 34 L. R. A. 550; Supp. 934; Campbell v. Shields, 11 Brown v. Wakeman, 42 N. Y. St. Rep. How. Pr. (N. Y.) 565; Smith v. Mc- 677, 16 N. Y. Supp. 846; Osmers v. Lean, 22 111. App. 451; Humiston, Furey, 32 Mont. 581, 81 Pac. 345; Keeling & Co. v. Wheeler, 70 HI. Magaw v. Lambert, 3 Pa. 444; Hoeve- App. 349; Id., 175 111. 514, 51 N. E. ler v. Fleming, 91 Pa. 322. 893, 67 Am. St. Rep. 232; Ernst v. ii7 Wusthoff v. Schwartz, 32 Wash. Straus, 114 App. Div. 19, 9!) N. Y. 337, 73 Pac. 407. Supp. 597; Rogers v. Grote Paint Co., us Compare § 3 b (3). 118 Mo. App. 300, 94 S. W. 548 (prem- nf See ante, § 12 g (8), at note 329. ises destroyed by fire). 120 Alexander v. Dorsey, 12 Ga. 12, In Mahoney v. Broadway Brew. 56 Am. Dec. 443; Fleming v. King, 1288 EVICTION. § 185 cases also to the effect that the action of the landlord in rebnild- ing or repairing in ease of the destruction of a building is not an eviction, though the lease was of the land as well as of the build- ing,i2i This view is perhaps based on the theory that the re- construction of the building is so greatly for the advantage of the tenant that his failure to object thereto is evidence of consent. If he should object thereto, however, and the landlord's operations have the effect of excluding him from possession, it would, it seems, be an eviction, pro\aded the tenancy is to be regarded as still existent under such circumstances ;i22 ^nd there is at least one case to the effect that the rebuilding in such case with- out the tenant's consent may result in an eviction.123 j^ has been held that a landlord, if not responsible for an injurious condition of the premises arising during the tenancy, is not re- sponsible for the consequences of his act, not wrongful or negli- gent in character, in trying, at the tenant's request, to remove this condition, and that the tenant cannot relinquish possession and refuse to pay rent on account of such act.^^sa If repairs are legally ordered by the municipal authorities, no eviction can arise from the landlord's compliance with such order.124 In one or two cases it is intimated that an undue delay in completing repairs, undertaken with the tenant's consent, might constitute an eviction.i^s 100 Ga. 449, 28 S. E. 239; McMillan pended." There is apparently no V. Solomon, 42 Ala. 356, 94 Am. Dec. authority for the statement as to the 654. effect of the entry by the tenant's 121 Izon V. Gorton, 5 Bing. N. C. assent. This seems to involve the 501; Connecticut Mut. Life Ins. Co. imposition on the landlord of a pen- V. U. S., 21 Ct. CI. 195; Monotuck Silk alty for doing something which Co. V. Shay, 37 111. App. 542. enures to the advantage of the ten- 122 See ante, § 182 m (6) (d), (8) ant. (g). 123a Blake v. Dick, 15 Mont. 236, 123 Hoeveler v. Fleming & Co., 91 38 Pac. 1072, 48 Am. St. Rep. 671. Pa. 322. In Magaw V. Lambert, 3 Pa. 104 Fleming v. King, 100 Ga. 449, 444, as quoted in the above case, it is 28 S. E. 239 ; Cassard v. Thornton, said that "if a landlord take posses- 119 ill. App. 397; Markham v. David slon of the ruins of his premises de- Stevenson Brew. Co., 51 App. Div. stroyed by fire for the purpose of ro- 463, 64 N. Y. Supp. 617; Id., 169 N. building, without the consent of his Y. 593, 62 N. E. 1097; Barnum v. tenant, it is an eviction; if with his Fitzpatrick, 46 N. Y. St. Rep. 891, 19 assent it is a rescission of the lease, N. Y. Supp. 385. See post, § 186 c. and in either case the rent is sus- 125 Ferguson v. Troop, 17 Can. Sup. , ,„- BY LANDLORD. 1289 § 185 That the owner of a building prevented the entry of persons for the purpose of repairing an apartment therem, which had become untenantable by rea^o.n of the act of a stranger, was held to justify the tenant of the apartment in relinquishing posses- sion and asserting an eviction.i25a ^ , ^i, . +u« (12) Withholding of license for business. The fact that the tenant is unable to obtain a license from the authorities to carry on the business for which he took the lease has been held not to involve an eviction by the landlord/^^ though a different view was takeoi when this was the result of the willful refusal of the landlord to give his written consent to the use of the premises for the purpose for which, as appeared from the written instru- ment, the lease was obtained.^^^ Whether such a mere act of omission, on the part of the landlord, however willful, should be reo-arded as effecting an eviction seems very doubtful.i^s i^^ an- other case it was decided that the action of the landlord m per- suading the authorities to refuse a liquor license to the tenant did not involve an eviction, since it "had no tendency to inter- rupt and did not interrupt, the tenant's possession, "i^o and a • like decision was rendered as U> the act of the landlord m Dom- ino- as owner of neighboring property, in a remonstrance against the'grant of a license to the tenant, although if he had not joined the remonstrance would have been unsuccessful.i^o g. Tenant's assent to landlord's acts. Acts on the part of rt ^97- Dexter v King 28 N. Y. St. requires the owner's written consent Sp 75oTn Y Supp 489. X25a Bergman v. Papia, 58 Misc. retained possession of the premises, 533 109 N. Y. Supp. 856. and so, it is submitted, no eviction 1^6 Miller V. Maguire. 18 R. I. 770, actual or constructive, occurred and 30 Atl 966 where the tenant was un- indeed such refusal of consent was a^lfto Ob ain a renewal of his liquor not set up as an absolute defense to if^nse because the city had erected the claim for rent but -fely as o^ a school building nearby. See Guth ground for "recoupment, and for V Mehling 84 Ipp. Div. 586, 82 N. this purpose it might be considered V. ™^^"°^' g ^^ that there was merely a breach by .^.^G^benhorst v. Nicodemus. 42 the lessor of a contract to give such Md 236 where the lessor refused to consent, give his written consent to the use 1 28 See ante, § 185 f (4)^ S the premises as a distillery, for ^^ I-\7^^^«- J™f ^^ ^509 which purpose they were leased, and mann, 158 Mass. 287, ^3 N. E 509^ thereby prevented their use for that - Kellogg v. Lowe^ 38 Wash. 293, purpose, since the act of congress SO Pac. 458, 70 L. R. A. 510. 1290 EVICTION. I 185 the landlord to which the tenant assents cannot be asserted by the tenant as constituting an eviction.^^i This self-evident prin- ciple lias been applied in the ease of an entry by the landlord, with the tenant's assent, to make repairs or improvements,^ ^^ and so, assuming that a subsequent lease by the landlord would otherwise constitute an eviction,^ ^3 j^ cannot be such if assented to by the tenant. Likewise, acts which the landlord is, by the terms of the lease, authorized to do cannot constitute an evie- tion.134-136 h. Effect of eviction on tenancy. An eviction by the land- lord does not, it seems, terminate the tenancy. That this is so would appear from the statements in the books, not that the rent is extinguished by an eviction, but that it is suspended there- by,*^"^ and that it is revived by the tenant's re-entry.i^s That an eviction from part does not terminate the tenancy has been clearly asserted,^ ^9 ^j^j j^ ^qq^ j^j^^ j^ j^g^g l^gg^ decided, relieve the tenant from the performance of his covenants other than for 131 See Murray, Caldwell & Co. v. nessee Fixture & Showcase Co., PeBnlngton, 3 Grat. (Va.) 91; Her- Tenn. Ch. App. 653. berg V. May, 153 Pa. 216, 25 Atl. 750, i33 See ante, § 185 f (6). 34 Am. St. Rep. 697; Price v. Pitts- i34-i36 Morris v. Tillson, 81 111. burg, Ft. W. & C. R. Co.. 34 111. 13; 607; Matthews v. Meyberg, 4 Hun Lettick V. Honnold, 63 111. 335; Aus- (N. Y.) 78; Murphy v. Marshall, 179 tin V. Strong, 47 N. Y. 679. Pa. 516, 36 Atl. 294. So where the In Mirick v. Hoppin, 118 Mass. 582, landlord re-enters in compliance it was held that there was no evic- with a provision of the lease author tion if the lessor by mistake put a izing him so to do on a certain cou- fence where it cut off a part of the tingency. Wright v. Everett, 87 premises demised, the lessee know- Iowa, 697, 55 N. W. 4; Hunnewell v. ing of his action and making no ob- Bangs, 161 Mass. 132, 36 N. E. 751. jection, and forbidding the removal ist See Bro. Abr., Apportionment, of the fence on the lessor's discovery pi. 7; Co. Litt. 148 b; Hodgkins v. of the mistake. Robson, Vent. 277. See ante, § 182 e i32Ludington v. Seaton, 32 Misc. (1), at note 845. 736 66 N. Y Snpp. 497; Cook v. An- ^^s Cibel v. Hills, 1 Leon. UO, pi. dei^on, 85 Ala. ^. 4 So. 713; Robin- ^^^' Timbrell v. Bullock, Styles, 446; , „„ ,„ A coo. Bro. Abr., Extinguishment, pi. 4; Co. son V. Henaghan, 92 III. App. 620; Litt. 319 a. Ogden V. Sanderson, 3 E. D. Smith . ttt-v,-* oo tvt ,-, i33LeiEhman v. White, 83 Mass. (1 (N. Y.) 166; Olson Y. Schevlovitz, 91 ^,,g^) ^^^. Morrison v. Chadwick. 7 App. Div. 405, 86 N. Y. Snpp. 834; q -q 266, 283; Smith v. McEnany, Wetterer v. Soubirous, 22 Misc. 739, 170 Mass. 26, 48 N. E. 781, 64 Am. 49 N. Y. Supp. 1043; Olmstead v. Ten- St. Rep. 272. » ,,,K BY LANDLORD. 1291 the payment of rent, sneh a^ that to repair/^^ or to use the prem- ises in a tenant-like manner.^^^ The oeeasional statements to the contrary, that a partial or entire eviction terminates the tenancy, are presumably to be construed as referring merely to the question then at issue, the termination, for the time bemg, of the liability for rent. The view that the tenancy still exists after the eviction does not necessarily mean that the tenant s liability for rent revives merely upon the landlord's subsequent withdrawal from the premises, but it is, it seems, o.nly upon the tenant's re-entry that such liability revives.^^^ For any loss by reason of his continuing liability upon his covenants, the tenant could, it is conceived, recover damages in an action on account of the eviction,! « and, in some jurisdictions, presumably, he could assert damage caused by the eviction by way of recoup- ment or set-off in an action on any of the covenants. i Action for damages. The ordinary form of action against the landlord in favor of the tenant for the recovery of damages, on account of the eviction of the latter by the former, is one upon the covenant for quiet enjoyment.^^^ The tenant may however, instead of suing on the covenant, bring an action of tort on account of the landlord's interference with his posses- sion or enjoyment of the land.^^^ This action would, m juris- 140 Newton v. Allen. 1 Q. B. 519; 1*5 Shuman v. Smith 100 Ga. 415, S^^ithv McEnany, 170 Mass. 26, 4S 28 S. ^^^|^^^.^f ^^^^^.^^^^ ^^,,;: M V 781 64 Am St. Rep. 272 (die- Cooper, 104 Mich. 72, G2 N. ^ . 157, fum) An st Carrel v. Read. Cro. Maney v. Lamphere, 139 mch. 42«. SS 374 But in Pellatt v. Boosey. 102 N. W. 979; Cannon v. Wilbur, 30 S Law J C P 281, while it was ad- Neb. 777, 47 N. W. 85; Huiest v. L^^that the lessee might be Marx, 67 Mo. APP- 418 Den^^on v liable on the covenant to repair, a Ford, ^l''^^'^- l\''':^''ll'Ti- forfeiture for breach thereof was not ton v. Fox, 12 N. Y. Super. Ct. 64 I lowed in View of the eviction. Gallagher v. Bur.e. 13 P. Superset -Morrison v. Chadwick, 7 C. B. 244; Jennin.^ . Bond^,^14 Ind.^Ap. ""xl^ Se'e ante § 182 e (1). at note (Tex. Civ. App.) 29 S. W. 505; Wilk- 14. see ante, s .^^^ ^ ^^^^^^^ ^^^^ ^5^ ^pp ) Lsee Morrison v. Chadwick. 7 C. 43 S. W^ 606; Uta^ XfJ'l^l' ^ „.. ^n, Keith, 18 Utah, 464, 56 Pac. 15&, x^see ante § 79. Robrecht v. Marling's Adm'r, 29 W. That the tenant cannot obtain the Va. 765, 2 S. E. 827, 6 Am. St. Rep. aid of a court of equity to restore 676. him to possession, see Williams v. The payment of all arrears of rent Mathewson. 73 N. H. 242, 60 Atl. 687. is not a condition precedent to the 1292 EVICTION. I 185 dictions where the old forms of action are retained, be in tres- pass, or in trespass on the ease, accordingly as the landlord's acts involve a direct interference with the tenant's possession, or merely an interference with his beneficial esijoyment. It has ordinarily been decided that, in such an action of tort, the te.nant may recover the difference between the rental value of the premises and the rent agreed to be paid,^*^ as he may in an action on the covenant for quiet enjoyment f^^"^ and the cases do not suggest the possibility of difference in the amou.nt of recovery in such two forms of action, i^s except as this may be implied in the occasional assertion of a right to recover punitive damages in the action of tort.^^*^ There are difficulties, how- ever, in regarding the measure of damages as the same in the two classes of action. The tenant's right of action against the landlord in tort is, it seems, similar to that which he would have against any stran- ger who might similarily interfere with his possession or enjoy- ment. Such right of action grows out of the violation of a right in rem and not in personam, and, in determining the right and amount of recovery, the fact that the parties occupy the re- lation of landlord and tenant is, it is conceived, immaterial. In other words, accurately speaking, the tenant recovers not for an eviction by his landlord but for a trespass on his possession, or for an interference with his rights of enjoyment. If the ten- ant is forcibly expelled from the land, either by his landlord or by a third person, he may recover in an action of trespass for the maintenance of sneli an action, graber, 70 Minn. 220, 73 N. W. 7; Spencer v. Commercial Co., 30 Wash. Silber v. Larkin, 94 Wis. 9, 68 N. W. 530, 71 Pac. 53. 406; Williams v. Yoe, 22 Tex. Civ. In Rice v. Baker, 84 Mass. (2 Al- App. 87, 54 S. W. 614. len) 411, it was decided tbat where kt See ante, § 79 g. the parties agreed that the value of i48 in Dobbins v. Duquid, 65 111. the residue of the term remaining 464, and Goldstein v. Asen, 46 Misc. after the eviction should be set-off 251, 91 N. Y. Supp. 783, apparently in an action for rent, the fact that actions in tort, the court expressly the lease was not assignable could be adopted the measure of damages considered in determining such stated in the case of actions on the value. covenant for quiet enjoyment. 1+0 See Dawson v. Marsh, 74 Conn. i49 Gildersleeve v. Overstolz, 90 498, ,51 Atl. 529; Dobbins v. Duquid, Mo. App. 518; Dobbins v. Duquid, 65 €5 111. 464; Haines v. B^ach, 90 Mich. III. 464. ■563, 51 N, W. 644; Wacholz v. Gries- 185 BY LANDLORD. 1293 trespass on the land a.nd for any consequential damage directly caused thereby, but he should not, it would seem, recover against his landlord upon the theory that his exclusion from the land will continue during his whole term, any more than he could against a stranger who thus ousted him from the land, nor in- deed than a tenant in fee could recover for such a trespass on the theory that the exclusion would continue in perpetuity.^^o In case the trespass assumes a permanent character, as when the landlord or a stranger erects a wall or other structure upon the leased land, the tenant might, it seems, in some jurisdictions, re- cover both past and future damages, on the theory that his ex- clusion will endure for the whole term of his lease, though in others he could, even in the case of an act of such a permanepit nature, recover only the damages which had accrued prior to the time of the action.i^i go if the tenant is not actually excluded from the land, but the landlord, or a third person, interferes with the tenant's enjoyment of the leased land by his mode of use of adjoining land, as when he obstructs the access over such land to the leased land, or interferes with water rights appurt- enant to the leased land, or creates a nuisance polluting the atmosphere, the wrong is not ordinarily of a necessarily continu- ing character, and the tenant should not recover for damages which may possibly accrue, subsequently to the action, by reason of the continuance of the wrong. And even though the wrong- doer is the landlord, the tenant, it is submitted, should not be allowed to change the character of the wrong, or the quantum of damages recoverable, by relinquishing possession and asserting 150 That the tenant can in such Mich. 163; Murphy v. Century Bldg. an action recover only for damage Co., 90 Mo. App. 621. But not, it suffered by the tenant prior to the would seem, if he could resume pos- commencement of the action, see session and restore his business on Salmon v. Blasier Mfg. Co., 123 App. the same footing as before. Div. 171, 108 N. Y. Supp. 448. isi See Sedgwick, Damages (8th But damages for the wrongful Ed.) §§ 91, 92, 95, 924; Sutherland, entry and expulsion may, in a prop- Damages, §§ 114, 116; Mayne er case, be computed with reference (Wood) §§ 102-111; 8 Am. & Eng. to the fact that this destroys his Enc. of Law (2d Ed.) 864. The business and thus deprives him of cases on the subject of the recovery profits which otherwise he would of such prospective damages appear, have received for the balance of the so far as one can judge from the term. Ashley v. Warner, 77 Mass. textbooks, to be in a state of great (11 GTay) 43; Shaw v. Hoffman, 25 confusion. 1294 EVICTION. § 185 an eviction. In so far as any of the cases may recognize a right of recovery by a tenant against his landlord for wrongful ex- pulsion, or for wrongful use of adjoining premises, different from that which the tenant would have against a third person committing the same wrong, and similar to that which he would have in an action on the covenant for quiet enjoyment, they in effect assert, it seems, that there is a peculiar class of tort, in- volving an interference with property rights, and consisting of an actual or constructive eviction, which is neither a trespass or a nuisance, which can be perpetrated only by a landlord and only against a tenant, and damages for which are measured not so much by the extent of the injury as by the extent of the in- terest of the person injured. , In such an action the possible profits which the lessee might have made from his continued occupation of the premises are ordinarily regarded as not recoverable,^^^ though a different view has occasionally been taken when the profits were those of an established business, which might have been in the con- templation of the parties ;^^^ and in one case evidence of past profits was admitted to show the loss resulting from a temporary interruption of the lessee's business caused by the lessor's wrongful entry. 1^4 Besides the difference between the rental value and the stipu- lated rent, the lessor may recover "special damages" directly growing out of the evietion.^^^ It has apparently been decided that he may recover a loss caused by being forced to sell off his stock and implements as a result of the eviction,i^^ though else- 152 Denison v. Ford, 10 Daly (N. iss Smith v. Eiibanks, 72 Ga. 280; Y.) 412, disapproving Shaw v. Hoff- Shaw v. Hoifman, 25 Mich. 162; man, 25 Mich. 162, ante, note 150; Kitchen Bros. Hotel Co. v. Philbin, 2 Kenny v. Collier, 79 Ga. 743, 8 S. E. Neb. UnolT. 340, 96 N. W. 487; Rice 58: Eisenhart v. Ordean, 3 Colo. App. v. Whitmore, 74 Cal. 619, 16 Pac. 501, 162, 32 Pac. 495; Taylor v. Cooper, 5 Am. St. Rep. 479 (semble). 104 Mich. 72, 62 N. W. 157; Jennings 154 Gkiebel v. Ho\igh, 26 Minn. 252, V. Bond, 14 Ind. App. 282, 42 N. E. 2 N. W. 847, 37 Am. Rep. 407. 957: Karbach v. Fogel, 63 Neb. 601, iss Jennings v. Bond, 14 Ind. App. 88 N. W. 659; Robrecht v. Marling's 282, 42 N. E. 957; Shutt v. Lockner, Adm'r. 29 W. Va. 765, 2 S. E. 827, 6 77 Neb. 397, 109 N. W. 383; Robrecht Am. St. Rep. 676; Loyd v. Capps v. Marling's Adm'r, 29 W. Va. 7ft5, (Tex. Civ. App.) 29 S. W. 505; De La 2 S. E. 827, 6 Am. St. Rep. 676. Zerda v. Korn, 25 Tex. Supp. 193; ise Supplee v. Timothy, 124 Pa. Wilkinson v. Stanley (Tex. Civ. 375, 16 Atl. 864. App.) 43 S. W. 606. § 185 BY LANDLORD. 1295 where a different view has been asserted.^^'^ The depreciation of the value of his property as a result of the removal cannot be recovered, it is said/^^ and the increased cost of procuring water for his stock and family at the place to which he removes has also been excluded from consideration.^^^ The value at maturity of the crops, which the lessee would have gathered had the eviction not taken place, cannot be re- covered without allowing the landlord for the balance of the rent to be paid, since this is one of the necessary expenses of obtaining the crop.^*'^ The lessee cannot recover both the value of the term and also the cost of labor in making the land ready for cultivation,^^! but on the other hand the lessor cannot claim an allowance for his labor in wro.ngfully gathering the crops. ^^^ The expense of the lessee's removal to another residence has been allowed.^ ^^ In one case the tenant was even allowed the expense of guards employed by him before he vacated in order to prevent the entry on the premises of defendant's employees for the purpose of demolishing the building.^^^^ The plaintiff may recover for injury to his feelings caused by the eviction, it has been decided, where the wrong was willful or done with gross disregard of the lessee's rights, but not for grief at illness in his family resulting from the eviction, nor for the personal exposure of himself and family in seeking another shelter.164 157 Robrecht v. Marling's Adm'r, jectural at the time of the eviction, 29 W. Va. 765, 2 S. E. 827, 6 Am. St. though ascertained at the time of Rep. 676. bringing suit. 15S De La Zerda v. Korn, 25 Tex. lei Comelissens v. Driscoll, 89 Supp. 193; Wilkinson v. Stanley Mich. 34, 50 N. W. 746. (Tex. Civ. App.) 43 S. W. 606. 162 Jefcoat v. Gunter, 73 Miss. 539, 159 Wilkinson v. Stanley (Tex. Civ. 19 So. 94. App.) 43 S. W. 606. 163 Jennings v. Bond. 14 Ind. App. 160 Jefcoat V. Gunter, 73 Miss. 539, 282, 42 N. E. 957; Wade v. Herndl, 19 So. 94; Merritt v. Closson, 36 Vt. 127 Wis. 544, 107 N. W. 4; McEl- 172. See Freeman v. Slay (Tex. Civ. vaney v. Smith, 76 Ark. 468, 88 S. W. App.) 13 Tex. Ct. Rep. 664, 88 S. W. 981; Grosvenor Hotel Co. v. Hamll- 404. ton [1894] 2 Q. B. 836 (semble). In Shutt V. Lockner, 77 Neb. 397, issa Gray v. Linton, 38 Colo. 175, 88 109 N. W. 383, it was decided that Pac. 749. the lessee could not recover the le* Fillebrown v. Hoaj, 124 Mass. profit which he would have made 580. from the crop, because this was con- 1296 EVICTION. § 186 The tenant may recover exemplary damages in case there are circumstances of oppression or aggravation,^®^ but he must for this purpose, it is said, show that the act complained of was wanton and malicious ;^^*^ and in another case it is said that the lessor is not liable for such damages, even though the eviction was unlawful and violent, if the lessor honestly entertained the belief that he had a right to evict the lessee.^ ^^ In one state it has been decided that a lessee for years can, under the local statute, recover treble damages against the land- lord for wrongful and forcible entry and expulsion,i68 and it seems that the state statutes in reference to forcible entry would ordinarily apply in favor of a tenant forcibly expelled by the landlord during the term.^^® § 186. By third person. a. Under title paramount — (1) What constitutes title para- mount. An eviction under title paramount oecurs when the ten- ant is deprived of possession by one having a right to such pos- session not derived from the tenant himself, which takes prece- dence of the rights of the tenant under the lease.^'^o The expres- sion "title paramount" does not, in this connection, necessarily refer to a title superior to that which the landlord originally had, but it includes a title derived from the landlord himself which, as being prior to the lease, takes precedence thereover.^'''^^ For in- stance, if the tenant under the lease is dispossessed by one claim- ing under a valid prior lease made by the same lessor, there is an eviction by title paramount ;i'^i and there is likewise such an evic- 165 Gallagher v. Burke, 13 Pa. R. 617; Naglee v. Ingersoll, 7 Pa. Super. Ct. 244; Gray v. Linton, 38 185; Seabrook v. Moyer, 88 Pa. 417. Colo. 175, 88 Pac. 749. I'^oa in Hoopes v. Meyer, 1 Nev. 1C6 Wamsganz V. Wolff, 86 Mo. App. 433, it was held that one tenant in 205. common has a title paramount to 167 Baumier v. Antiau, 65 Mich, that of one claiming under a lease 31, 31 N. W. 888. made by his cotenant. 188 Shaw V. Hoffman, 21 Mich. 151. i"i See McAlester v. Landers, 70 169 See post, chapter XXI, at note Cal. 79, 11 Pac. 505; Tunis v. Grandy, 198. Compare Cole v. Eagle, 8 22 Grat. (Va.) 109; Neale v. McKen- Bam. & C. 409; Willard v. Warren, zie, 1 Cromp. M. & R. 61, 1 Mees. & 17 Wend. (N. Y.) 257; commented W. 747; Lawrence v. French, 25 on in Shaw v. Hoffman, 21 Mich. 151. Wend. (N. Y.) 443 (sembte). i7»See Poster v. Pierson, 4 Term ff j^gg BY THIRD PERSON. 1297 tion if the tenant is dispossessed by one claiming under a mort- gage or other lieJi created by the landlord before the making of the lease, as when it is by a mortgagee having the legal title, with the right of possession thereunder,i'2 or by a purchaser at fore- closure sale.1^3 Tj^g ^-^ig ^f ^j^g dispossessor can, in such cases, be regarded as "paramount" to that of the landlord ooily in so far as any grantee's title is paramount to that of his grantor.i^^ In cases where the eviction is by one having a valid title not de- rived from the lessor, the title is evidently "paramount" in the strictest sense of the term. Occasionally the paramount title is that of the lessor in chief to which a subtenant is compelled to yield upon the termination or forfeiture of the principle lease, this effecting an eviction of the subtenant which he may assert against the sublessor.^ '^'^ The paramount title to which the tenant yields must in/olve a present right of possession in the person asserting it, and there is no eviction if the tenant yields possession to one having a right to possession merely at some future day.^'^^ Accordingly, it has been decided that a tenant yielding possession on demand to a purchaser at foreclosure sale, before the latter had received his deed or the sale to him had been confirmed, could not claim to have been evicted.^^^ (2) Acts constituting eviction. For the purpose of a.n evic- tion by title paramount, the tenant may be dispossessed under legal proceedings on the part of the holder of such title,^'^^ cr he 172 See Smith v. Shepard, 32 Mass. Gear v. Boston Little Circle Zinc Co., (15 Pick.) 147, 25 Am. Dec. 432; 126 Mo. App. 173, 103 S. W. 151. George V. Putney, 58 Mass. (4 Cush.) itg Borough of Poole v. Whif-, 15 351, 50 Am. Dec. 788; ante, § 73 a. Mees. & W. 577; Camp v. Scot!, 47 173 See Simers v. Saltus, 3 Denio Conn. 366; Morse v. Goddard, 54 (N. Y.) 214; O'Neill v. Morris, 28 Mass. (13 Mete.) 177, 46 Am. Dec. Misc. 613, 59 N. Y. Supp. 1075; Kane 728. V. Mink, 64 Iowa, 84, 19 N. W. 852; 177 Peck v. Knickerbocker Ice Co., Mariner v. Chamberlain, 21 Wis. 251. 18 Hun (N. Y.) 183; O'Neill v. Mor- See ante, § 73 b. ris, 28 Misc. 613, 59 N. Y. Supp. 1075. 174 See Abbott's Law Dictionary, i7£ Rawle, Covenants for Title, § sub. verb. "Paramount." 132; Upton v. Townend, 17 C. B. 34. 175 Holbrook v. Young, 108 Mass. The relinquishment of possession 83, 11 Am. Rep. 310; Home Life Ins. by the tenant on the issue of a writ Co. V. Sherman, 46 N. Y. 370; Hy- in favor of a prior mortgagee in- man v. Boston Chair Mfg. Co., 32 N. volves an eviction. Barnes v. Bel- Y. St. Rep. 113, 58 Super. Ct. (26 lamy, 44 U. C. Q. B. 303. Jones & S.) 282, 11 N. Y. Supp. 52; L. and Ten. 82. 1298 EVICTION. I 186 may, it seems, be dispossessed by the latter by force exerted di- rectly by himself or his servants without any judicial author- ity/^^ as when the owner of the paramount title renders the premises untenantable by removing part of a structure there- on.180 But it is not necessary that the tenant be dispossessed by legal proceedings or by the exercise of force on the part of the holder of the superior title, it being sufficient that, upon demand by the holder of the paramount title, the tenant yields possession to him.^^i There are occasional decisions, moreover, that there is an eviction of the tenant if he buys the paramount title to protect his possession. ^^2 There are a considerable number of cases to the effect that, without any yielding of possession to the paramount claimant or purchaser of the paramount title, the tenant, if he attorns to the paramount title upon the hostile assertion thereof, may assert such attornment as an eviction.^s^ This view appears to be entirely 1T9 Foster v. Pierson, 4 Term R. forfeiture of a lease enforced by a 617; Parker v. Dunn, 47 N. C. (2 suit in ejectment, a sublessee yielded Jones Law) 203; Ricketts v. Garrett, possession, not to the original les- 11 Ala. 806. sor, who enforced the forfeiture, but 180 Bentley v. Hill, 35 111. 414 (re- to the sublessor, and it was held moval of wall by owner thereof). that there was an eviction, since the 181 Carpenter v. Parker, 3 C. B. (N. sublessor could transfer the pos- S.) 206; Moffat v. Strong, 22 N. Y. session to the lessor. This seems to Super. Ct. (9 Bosw.) 57; Tyson v. be an authority to the effect that In Chestnut, 118 Ala. 387, 24 So. 73; any case, if the paramount title Is Camp V. Scott, 47 Conn. 366; Ham- asserted against the lessee, he may ilton V. Cutts, 4 Mass. 349, 3 Am. Dec. relinquish possession to the lessor 222; Marsh v. Butterworth, 4 Mich, and claim an eviction. 575; Home Life Ins. Co. V. Sherman, i«2 Ross v. Dysart, 33 Pa. 452; 46 N. Y. 370; Hyman v. Boston Chair Hulseman v. Griffiths, 10 Phila. Mfg. Co., 58 N. Y. Super. Ct. (26 (Pa.) 350, 32 Leg. Int. 208. See Jones & S.) 282, 11 N. Y. Supp. 52. Rawle, Covenants for Title, § 142; g The tenant may yield possession Am. & Eng. EJnc. of Law (3d Ed.) to the holder of the paramount title 108. and claim an eviction, though the iss Borough of Poole v. Whitt, 15 demand by the latter was not for Mees. & W. 571; Merryman v. the possession but merely for the Bourne, 76 U. S. (9 Wall.) 592; payment of rent to him. Simers v. Lyon v. Washburn, 3 Colo. 201; Saltus, 3 Denio (N. Y.) 214. The Smith v. Shepard, 32 Mass. (15 demand in this case was by a pur- Pick.) 147, 25 Am. Dec. 432; Conley chaser at a sale under a mortgage. v. Schiller, 24 N. Y. Supp. 473; Hol- In Home Life Ins. Co. v. Sherman, brook v. Young, 108 Mass. 83, 11 46 N. Y. 370, there having been a Am. Rep. 310; Morse v. Goddard, 54 BY THIRD PERSON. 1269 § 1^0 ., , • • 1^184 v,nt ihprp are a number of cases op- defensib le on pnnciple/^^ but tnere are a uu. 'Tht ternttayieldin, possession on demand to a third person asserting a claim o£ superior title, takes the nsk of -eh cam being a valid one, and in an action between him and hvs landlord, in which he asserts this as an eviction '-has the burden fshow- in» the validity of the claim to which he has thus yielded The same holds true in the ease of an attornment, without a yield- ing of possession, to one asserting a paramount title,-' and like- wise in the case of the tenant's purchase of such claim. In asc he is unwilling to take this risk he may await the bringing of an at on by the claimant, a.nd, by then giving to the party bound by the covenant for quiet enioyment, the lessor or the owner of the reversion, notice of the action, and requiring him to de- fend it he is relieved from the burden of subsequently proving . the validity of the alleged paramount title in an action by him on the covenant for quiet enjoyment.!" The tenant cannot assert an eviction by reason of the fact that he yielded possession or attorned to the holder of a paramount title unless he did this in pursuance of a hostile assertion of such title'."' By hostile assertion of title in this connection is meant, ,,, M.t,.l 177 46 Am Dec. 54 Mass. (13 Mete.) 177, 46 Am. Dec. Mass. (13 "<"<^',"V,8 M^„ (4 728; Marsh v. Butterworth, 4 Mich. '.'';?T.f Jolm Die 788 ROSS 575 Spear v. AUIso., 20 Pa. 200; Cush.) f l' ^» *",.°''^rtin ; Mar. Murray v. Pennington, 3 Grat. (Va.) Iln"',"™ sS, 6l'Am Bee.- 364; 91; Raw.e, Covenants for Title. 5 MonU.„ye v. Wallahan, ^4 UK 355; l=f; ^ ^„„„^ ,, „. g. Lunstord V.Turner. 28 Ky. (5 XJ^ ^^ ^^ g,.,. :Cl '::Z":"^"^^ -rou^h l. poo. .. .... is Mees. Tw-r^^lSit':"-" *":s"ante, . 7. . (3), at no. I rc2;"Lers v. Saltus 3 Deulo "C -^^ «a.,. Covenants ^^Tltl. rM v^ 21 fi- West Shore Mills Co. V. §§ 117-l^b, i^b. iu«i« pi Edwais 24(^.475, 33 Pa.. 987. See be no reason why the same rule .Is vfa c 78 p (2). should not apply as to the proof of ^'SseanterTSp 2). atnote the alleged paramount title when 184 See ante, s '« P eviction thereunder is asserted in ''Lsee ante. § 78 p (2), at note defense to a ^l-- J-/-/, Jf Wheelock v. Warschauer, 34 L.ai. 184b Hamilton v. Cutts, 4 Mass. 349, 265. 3 Am. Dec. 222; Morse v. Goddard, ist See Rawle, Covenants for Title. 1300 EVICTION. § 186 apparently, an assertion of title made in such mannef and under such circumstances that the tenant has reason to believe that, unless he does yield possession or attorn, the owner of the paramount title will assert his claim by legal proceedings.^^^ When an action has been actually instituted for this purpose, there can, it seems clear, be no question as to the hostile assertion of the title.189' i^o (3) Effect of eviction. The effect of the tenant's eviction, actual or constructive, under paramount title, is ordinarily to end the relation of landlord and tenant,^^^ such an eviction being thus different in its effect from an eviction by the landlord.^ ^2 n has apparently been decided that such is the effect of an eviction under a judgment in favor of a stranger, even though the judg- ment is afterwards reversed.^^^ AVhether, after an eviction by virtue of a paramount mortgage or lien in favor of a third person, § 135; 8 Am. & Eng. Enc. of Law (2d get rid of the lease is immaterial, Ed.) 110, and cases cited ante, §? but that it would be otherwise if 19 b (3), 73 a. bis desire found expression in con- In Mattoon v. Munroe, 21 Hun (N. duct or words. Y.) 74, it was held that when a lease iss. iso See 8 Am. & Eng. Enc. Law, of a dock provided that rent should 113. be paid only until the lessor's license loi Wheelock v. "Warschauer, 34 from the' state should be rescinded Cal. 265; Fitzgerald v. Beebe, 7 Ark. and the lessee dispossessed, the les- 310'; Gartside v. Outley, 58 111. 210, 11 see could not defend against rent on Am. Rep. 59; Fitchburg Cotton the ground of a rescission of the li- Manufactory Corp. v. Melven, 15 cense if this was procured by the Mass. 268; Stubbirgs v. Evanston, lessee acting in collusion with the 136 111. 37. 26 N. E. 577, 11 L. R. A. state officers. 839, 29 Am. St. Rep. 300; Mussey v. 188 See cases cited 8 Am. & Eng. Holt, 24 N. H. 248, 55 Am. Dec. 234; Enc. Law (2d Ed.) 113, and ante, § Friend v. Oil Well Supply Co., 165 78 p (2). Pa. 052, 30 Atl. 1134. So in And- In In re Emery & Barnett, 4 C. B. rews v. Needham, Noy, 75, Cro. Eliz. (N. S.) 423, the fact that the tenant, 656, it is decided that by the entry in yielding possession to the holder under elder title the .tenant is re- of the paramount title, did so will- lieved from a covenant to repair and ingly, desiring to get rid of the j'ield up at the end of the term, "for lease, was regarded as tending to if the land be gone, the obligation show that ha, acted voluntarily and is discharged." See, also, Whee- not under compulsion. In Geer v. lock v. Warschauer, 34 Cal. 265. Boston Little Circle Zinc Co., 126 Mo. 192 See ante, § 185 h. App. 173, 103 S. W. 151, it is said "3 Montanye v. Wallahan, 84 111. that the tenant's secret desire to 355. BY THIRD PERSON. 1301 the tenancy is revived upon a redemption *«f;;». J?^^^^ to have been the subject of decision in only one ease, *"« it was held that sueh revival did take place "« On such a theo^ he tenancy would, in the meanwhile, be m abeyance so far as regards thi payment of rent under the lease -^ Presumably a regards any other obligations upon the part of the tenant. The effect of an eviction by paramount title in t"nunating m wh or in part, the liability for rent has been elsewhere referred to b wrongful acts of third persons. Except m the case of m eviction by title paramount"' there is, as was before stated, no ev ction in the legal sense of the term, when the tenant s pos- :^or enjoym:nt is interfered with by a *-d P-son no actin- by the landlord's authority or with his consent^ This s so whether such interference involves an unauthorised trespass on the leased premises, or other wrongful act,-» or whether it is i^ 9S N H 543 61 Am. Dee. 629. ling v. Holmes, 23 Cal. 227. S3 &m. Id., 28 N. H. 01S. oi .,.. ,u. „„„. Dec 111; Elsenhart v. Orflean. S j?.erreranTr.:,rd c. - -.- ^-^rn eviction and prior to tae reue y y/Qq. McNairy v Hicks, 62 Tenn. L.c.an..a.reat.o,.ec,^^^^^^^^^^ r re°";i rev>rn,:ia. : OMO St. 6.7; 0^-^.^ rT' ^l n: to Vay the sam. rent to such claim- Hart, 25 Pa. 193, 64 Am. Dec. 691. He noias iuiqli lug y . r,o r>\ tractor employed by the landlord to ant by a --^^^-'^ '^"^/vL evic: « kon a«olning premise. Tal- uon rif:::'.'^;^ to i: z ^ott v. ^0.,,=^, 1.6 m^. .... 5, n. ^ tion, reluse lo p^j i ^^^ ^ sheriff, ^eed'tr me' rf Pe "er/n t"o a«e. attaoMn. ebattels on tbe ::nt . sne^ Ca.mant and bas tben ---^ 'r^^rr: failed to pay It ^ ^^^ ^^^^ ^^^^^^ ^^ ^^ ^^^ ^ See ante I 182 e (2). ^^ ^^_^.^^^ ^ ^^^_^ _j, ^^^^^ "'.KTm^'v' Grand l^age of Ma- 395. And there wa« -;.-';<'o";' » so^ m Masa. 59; Talbott v. Ear subtenant because the chief laad.ord, 1302 EVICTION. § 186 the result of lawful acts by adjoining owners or others/ ^^ as when adjoining land is so improved by the owner thereof as to cut off the light and air.200 Qq i\^q tenant of an apartment can- not assert that he has been evicted because the tenants of other apartments have interfered with his possession or enjoyment by acts in which the landlord in no way participated and to which he did not conse.nt."^^ On the other hand there is an eviction, in legal effect by the landlord himself, if the tenant's possession or enjoyment is interfered with by one acting under the land- lord's authority, express or implied.2<>2, 203 who was, as to him, a stranger, There was properly no lease in this wrongfully interfered with his pos- case, but merely a license, session. Luckey v. Frantzkee, 1 E. 201 Seaboard Realty Co. v. Fuller, D. Smith (N. Y.) 47. 33 Misc. 109, 67 N. Y. Supp. 146; De 199 There was no eviction when the Witt v. Pierson, 112 Mass. 8; Conrad tenants' continued possession was Seipp Brew. Co. v. Hart, 62 111. App. rendered impossible by the fact that 212; Gray v. Gaff, 8 Mo. App. 329. the adjoining owner pulled down There was accordingly no eviction the division wall in order to rebuild when the tenant of an apartment it as a party wall, as he was allowed used it as a house of ill fame, though to do by the local statute (Barns v. this compelled the abandonment of a Wilson, 116 Pa. 303, 9 Atl. 437), or neighboring apartment by the tenant where the owner of the adjoining lot thereof, the landlord not being cog- made excavations causing the build- nlzant of such use. Gilhooley v. ing to fall (Eisenhart v. Ordean, 3 Washington, 4 N. Y. (4 Comst.) 217. Colo. App. 162, 32 Pac. 495; Howard Aliter, by some cases, when the land- V. Doolittle, 10 N. Y. Super. Ct. (3 lord was cognizant of such use. See Duer) 464; Ramsay v. Wilkie, 36 N. ante, note 97. Y. St. Rep. 864, IS N. Y. Supp. 554), 202, 2(>3 Warren v. Wagner, 75 Ala. or removed party stairs in the course 188, 51 Am. Rep. 446; Hyman v. of the lawful removal of the adjoin- Jockey Club Wine, Liquor & Cigar Ing building. Manville v. Gay, 1 Co., 9 Colo. App. 299, 48 Pac. 671 Wis. 250, 60 Am. Dec. 379. (sheriff acting under landlord's ord- 200 Hazlett V. Powell, 30 Pa. 293; ers) ; Sherman v. Williams, 113 Johnson v. Oppenheim, 12 Abb. Pr. Mass. 481, 18 Am. Rep. 522; City (N. S.) 454, 43 How. Pr. 433, 55 N. Y. Power Co. v. Fergus Falls Water Co., 280; Hllliard v. Gas Coal Co., 41 55 Minn. 172, 56 N. W. 685, 1006. Ohio St. 662. 52 Am. Rep. 99. So In Kelly v. Miles, 48 Hun 6, 15 N. when the view of the premises is y. St. Rep. 319, afd. 122 N. Y. 645, ci^t off so as to obscure the tenant's 25 N. E. 957, it was held that if a 6ic-n. See Oakford v. Nixon, 177 subtenant gave up possession for a Pa. 76, 35 Atl. 588, 34 L. R. A. 575, certain time that the owner might where the view of a wall "leased" make improvements, the subtenant for bill posting was cut off by a agreeing to pay rent during such screen on an adjoining building, time, he was relieved from rent if § 186 BY THIRD PERSON. 1303 The question whether the landlord has thus authorized or con- nived at the wrongful acts is said to be a question for the jury on all the evidence in the ease.^o^ The subsequent leasing by the lessor of premises adjoining those leased, with knowledge that the second lessee intends to make use of the premises in a par- ticular way, is sufficient, it seems, to make the lessor a party to such use for the purpose of determining whether there is an eviction ;205 but even an express authorization by the landlord to a third person to interfere with the possession of the tenant cannot be regarded as making such interference in effect an eviction, if this was clearly intended to be effective only in case the tenant also gave such authorization.^o^ It has been held in one case that it is a question for the jury whether an eviction resulted from the giving of singing lessons by the tenant of an apartment adjoining that leased to the per- son asserting the eviction. ^ot Unless the adjoining apartment was leased for the giving of such lessons or the lessor connived in such use thereof, it does not seem that the lessor could be held responsible for its use for that purpose,^^^ and even his consent to such use should not have that effect unless he knew that the use was to be excessive, and consequently such as to constitute a nui- sance.208a ^g -yyas said in a previous case in the same jurisdic- kept out of possession a time longer authorized or assented to the act than that agreed, the interfering oc- complained of as wrongful." cupation being by the owner v/lth 205 Halligan v. Wade, 21 111. 470, 74 the sublessor's assent, and this, con- Am. Dec. 108; Lay v. Bennett, 4 Colo. Bequentlj% constituting an eviction App. 252, 35 Pac. 748. See Wade v. by the latter. Herndl, 127 Wis. 544, 107 N, W. 4, 5 204 Warren v. Wagner, 75 Ala. 188, L. R. A. (N. S.) 855. 51 Am. Rep. 446, where it is said 206 McKenzie v. Hatton, 141 N. Y. that "the nature and character of 6, 35 N. E. 929. Here the landlord the act, taken in connection with the gave to the person excavating on relation of the landlord to the actor, adjoining property permission to his employment or agency in the enter in order to protect the walls, business of the landlord, and the ac- and it was held that if such person quiescence of the latter in former entered without also procuring the acts, accompanied by circumstances permission of the tenant, there was Indicative of his knowledge that the no eviction by the landlord, act was done, or continued, and the 207 Chisolm v. Kilbreth, 88 N. Y. absence of objection upon his part, Supp. 364. are facts which must be considered 208 See Sefton v. Juillard, 46 Misc. by the jury, whose business it is to 68, 91 N. Y. Supp. 348. determine the inquiry whether he 208a See ante, § 185 f (8). 1304 EVICTION. I 186 tion: "An eviction cannot be predicated of acts or conduct, how- ever wrongful or distressing, unless committed, encouraged or connived at by the landlord. He is not responsible for the con- duct of other tenants acting within their rights in their own apartments. If defendant's grievance is a substantial one, he can secure redress, not against his landlord, but against the offend- ing tenant in the adjoining premises. "^''^ And it has there been held that the principle thus enunciated is applicable even when the lessor is by the lease of the adjoining apartment given an op- tion to terminate the tenancy thereunder in case of the use there- of for the purpose objected to.^^o c. Acts of public authorities. As elsewhere stated, it has been decided in a number of cases that the taking of the premises by the state, or an agency of the state, for a public use, in the exer- cise of the power of eminent domain, is not an eviction of the tenant, though it results in his forced relinquishment of posses- sion.211 That it is not an eviction by the landlord is evident, but in its nature it bears considerable similarity to an eviction under paramount title.212 Legal action on the part of the municipal authorities, not in- volving the taking of the premises leased but merely requiring the cessation of a particular use thereof, or the repair or removal of buildings on the leased land for the sake of the public health and safety, cannot, even though it deprives the tenant of all bene- fit under the lease, be regarded as an eviction by the landlordj^^s nor can it be regarded as an eviction under paramount title, since the tenant is still left in possession of what remains, and the municipality does not have nor acquire any title, and does not take possession, except perhaps for a merely temporary pur- pose. The landlord may himself carry out municipal require- ments of this character, legally imposed, without effecting an 209 Seaboard Realty Co. v. Fuller, 293, 72 N. Y. Supp. 171; Forster v. 33 Misc. 109, 67 N. Y. Supp. 146. Eberle, 7 Misc. 490, 27 N. Y. Supp. 210 Sefton V. Juillard, 46 Misc. 68, 986. The removal by the municipal 91 N. Y. Supp. 348. authorities of structures encroach- 211 See ante, § 182 k, at note 9r;6. Ing on the street is not an eviction 212 See ante, § 182 k, at note 976. by the landlord. McLarren v. Spald- 213 Hitchcock V. Bacon, 118 Pa. ing, 2 Cal. 510; Burke v. Tindale, 12 272, 12 Atl. 3.^2, 4 Am. St. Rep. 593; Misc. 31. 33 N. Y. Supp. 20, afd. 155 Sieefel v. Rothschild, 64 App. Div. N. Y. 673, 49 N. E. 1094. ^ ^gg BY THIRD PERSON. 1305 eviction, althongh such acts, done by liim without express au- thority, would have justified the tenant in abandoning posses- sion ;2i4 but such action by him, without any formal notice to that effect from the building department, has been regarded as an eviction,2i5 and a like view was taken when the landlord was or- dered by the municipal authorities to repair the building under penalty of having it destroyed by the authorities if he failed to do so, and he thereupon destroyed the building.^i^ Likewise, there was held to be an eviction when the landlord intentionally, by operations on adjoining premises, made the building on the leased premises unsafe so as to .necessitate its condemnation by the authorities.217 214 Gallup V. Albany R. Co., 65 N. 217 Silber v. T^arkln, 94 Wis. 9, 68 Y 1- Fleming v King, 100 Ga. 449, N. W. 406. In Snow v. Pulitzer, 142 28 s' E 239; Barnum v. Fitzpatrick, N. Y. 263, 36 N. E. 1059. the lessor 46 N Y St. Rep. 891, 19 N. Y. Supp. was held liable for the injury to his 385- Markham v. David Stevenson lessee by the destruction, under order Brew Co., 51 App. Div. 463, 64 N. Y. of the municipal authorities, of the Supp. 617; Id., 169 N. Y. 593, 69 N. building in which the leased prem- E 1097; Beakes v. Haas, 36 Misc. ises were situated, as a result of the 796 74 N. Y. Supp. 843. withdrawal by him of the support of 215 Brown v. Wakeman, 42 N. Y. St. an adjoining building, though he did Rep 677 16 N. Y. Supp. 846. not Intend to injure the former build- 216 Utah Optical Co. v. Keith, 18 ing or the occupants thereof by his Utah 464 56 Pac 155. operations on the adjoining property. CHAPTER XVIII. SURRENDER. f 187. Nature of surrender. 188. Parties to surrender, a. Persons who may make surrender. b. Persons to whom surrender may be made. 189. Express surrender. a. Necessity of writing. b. By cancellation of lease. c. Necessity of seal. d. Necessity of acceptance. e. Words of surrender. f. Transfer of possession. g. Surrender in futuro. h. Surrender for purpose of new lease. 190. Surrender by operation of law. a. General nature. b. Acceptance of new interest. (1) Acceptance of lease. (a) The general doctrine. (b) Intention of parties. (c) What constitutes new lease. (d) New lease to assignee of leasehold. (2) Acceptance of different class of interest. c. Transfer of possession to landlord. (1) The general doctrine. (2) Resumption by landlord of possession necessary, (3) What constitutes resumption of possession. (4) Reletting by landlord to another. (5) Relinquishment of possession on landlord's demand, d. New lease to third person, 191. Effect of surrender. a. As between the parties, b. As against third persons. c ^gy NATURE, 1307 § 187. Nature of surrender. "Surrender" is defined by Lord Coke as a yielding up of an estate for life or years to him that hath an immediate estate m reversion or remainder, wherein the estate for life or years may drown by mutual agreement between them.i This definition has been followed, more or less closely, by such other writers as have undertaken to define the term,^ and there has never been any question made as to its substantial correctness. A surrender, then, is a particular mode or form of transfer which derives its distinguishing characteristics from the fact that it is made by the tenant of a particular estate to the reversioner or remainderman. This technical meaning of the word has, unfortunately, been to some extent obscured by its frequent use in an untechnical sense, as referring to the relinquishment or yielding up, not of an estate, but of the possession of the premises, as when the lessee covenants to "surrender" the premises in good condition at the end of the term, and the courts, as will be shown hereafter, fre- quently, in using the term, fail to clearly distinguish between such a surrender of possession and a surrender, properly so called, of a particular estate for life or for years.2'' Quite frequently, in using the term even in its technical sense, a surrender "of the lease" is spoken of, but this must be understood as merely an el- liptical expression signifying a surrender of the particular estate or term created by the lease. It seems desirable, in order to form a clear idea of the law of surrender, to briefly consider its relation to that of merger, which latter, though formerly the subject of much discussion and ad- judication, is at the present time of but little practical importance. In the case of a surrender, the particular estate for life or for 1 Co Litt. 337 b. ^^ agency in either lessee to act for 2 See Cruise Dig. tit. 32, c. 7, § 1; the other in malting such surrender. 2 Piatt, Leases, 499; Comyn, Landl. The stipulation was really for a sur- & Ten., 336; Taj'lor, Landl. & Ten. § render of the possession, that is, that 507; I'washhurn, Real Prop. § 735. the lessees should relinquish pos- 2a In Bergland v. Frawley, 72 Wis. session upon the contingency named, 559, 40 N. W. 372, there was a pro- and so its effect might seem to have vision in the instrument of lease been to create a limitation upon the that on a certain contingency the duration of the term, taking effect, lessees should surrender the prem- without any action by the lessor or Ises if demanded by the landlord, lessee, upon the happening of the and the court says that this implied contingency. See ante, § 12 d. 1308 SURRENDER. § Igy years comes to an end as a result of the act of surrender, in com- pliance with the intention with which the surrender was made, while a merger of the particular estate in the reversion occurs as a result of the fact that the two estates are vested in one per- son, by a conveyance either of the reversion to the particular tenant, or of the particular estate to the reversioner.^ For most all practical purposes, however, it is entirely immaterial whether, upon a conveyance of the particular estate to the reversioner, the consequent destruction of the estate be regarded as a result of the fact that the conveyance was intended to take effect as a sur- render, or of the fact that, both estates being vested in the same person, the particular estate is merged. There is, however, it is said, one case in which there is a difference in the practical re- sults of a surrender and of a merger. When there is a life es- tate in one person, with a reversion in two persons as joint ten- ants, if the tenant for life should surrender his estate to one of the joint tenants, it would be extinguished, since a surrender to one of two joint tenants is as effectual as a surrender to both, while, on the other hand, if the life tenant should make a con- veyance to one of the reversioners, which is not intended to, and does not, take effect as a surrender, but is merely such as might be made to a stranger, one moiety only of the life estate would be merged in the moiety of the reversion belonging to the gran- tee, and the other moiety of the life estate would be vested in such grantee as tenant pur autre vie, with the reversion thereooi in the other joint tenant.^ Since, however, a surrender may be effected by any words of conveyance, it seems that the presump- tion would always be, in the absence of an express showing to the contrary, that the instrument transferring the particular estate to the reversioner was intended to take effect as a surrender,^ and consequently, even in the case above suggested, of a con- veyance to one of two joint tenants of the reversion, the particu- lar estate would ordinarily be extinguished as a whole and not in part only. Cases in this country occasionally refer to the "rescission" or "cancellation" of the lease by the parties thereto, without ap- 33 Preston, Conveyancing, 8; Chal- Conveyancing, 24; Challis, Real lis. Real Prop. (2d Ed.) 77. ^^^P" ^^d Ed.) 77. 5 Sheppard's Touclistone (Pres- *Co. Litt. 183 a, 192 b; 3 Preston, (-oQ-g ^^ ) 307^ § 187 NATURE. 1300 parently recognizing that a termination of the tenancy as a re- sult of an agreement of the parties, made subsequently to its cre- ation, necessarily involves the divesting of a leasehold estate out of the lessee, or his assignee, and a revesting thereof in the landlord.^** After an estate, whether in fee simple or for life or for years, has been conveyed, the grantor and grantee in the con- veyance cannot effect a reconveyance of the estate to the former by undertaking to "rescind" or "cancel" the original convey- ance.^^ The parties to a contract can rescind or cancel the con- tract, that is, they can make a new contract by which each agrees to forego his rights under the previous contract, but the mere making of a new contract can never transfer property rights, even to a person in whom they were formerly vested. Any rescis- sion or cancellation, so called, of a lease, by the parties thereto, must consequently, in order to terminate the tenancy, constitute in legal effect a surrender, and must satisfy the requirements ex- 5a See Silva v. Bair, 141 Cal. 599, 75 Pac. 162; Evans v. McKanna, 89 Iowa, .'362, 56 N. W. 527, 48 Am. St. Rep. 390; Andre v. Graebner, 126 Mich. 116, 85 N. W. 464; Geddis v. Folliett, 16 S. D. 610. 94 N. W. 431. In Leavitt v. Stern, 159 111. 526, 42 N. E. 869, it was decided that, since an executory contract under seal can- not be modified by a parol agree- ment, an oral agreement for a new lease (meaning thereby presumably an oral lease) does not effect a sur- render of a previous lease under seal. And see Duncan v. Moloney, 115 111. App. 522. In Alschuler v. Schifl, 164 111. 298, 45 N. E. 424, parol evidence of an agreement for sur- render and the relinquishment of possession accordingly was held to be admirsible on the theory that a sealed contract can be abrogated and cancelled by parol, though not altered or modified thereby. It would, it is conceived, have been preferable to treat this as a surrender by opera- tion of law, resulting from delivery and acceptance of possession. In Stott V. Chamberlain (S. D.) 114 N. W. 683, the action of the ten- ant in notifying the landlord that he intended to vacate the premises, apparently acquiesced in by the land- lord, was regarded as effective to "rescind the contract of lease." There appears also to have been a relinquishment of possession to the landlord and resumption of posses- sion by him. See post, § 190 c. In Snyder v. Harding, 34 Wash. 286, 75 Pac. 812, it was held that, the tenant having "rescinded" the lease by bringing an action to recover the land as equitable owner, the com- mencement of an action by the land- lord to recover the land and to quiet the title was an "acceptance" of the "rescission." A preferable way to view the case, it might be suggested, would be to consider the assertion of title by the tenant as giving a right of forfeiture, and the land- lord's action as an election to enforce such forfeiture. See post, § 192. 6b See post, at note 46. 1310 SURRENDER. § 188 isting with reference to such a mode of conveyance. The same may be said of the occasional use of the expression "aba.ndon- ment" of a lease,^^ apparently meaning thereby either an agree- ment by the parties to ignore it, or a determination by the lessee not to take possession under it. The estate vested in the lessee by the lease cannot be transferred back to the lessor by a mere ignoring of the true state of the case, or a determination by the lessee not to exercise his right of possession. § 188. Parties to surrender. a. Persons who may make surrender. A surrender may be made by such persons, and no others, as have personal capacity to make a grant.^ Consequently, a surrender by an infant may be repudiated by him upon his attainment of full age.''' And a surrender by one non compos mentis, even if regarded as voidable merely and not absolutely void, may be repudiated by him on recovery of his faculties.^ It is said that a lessee, who has not yet entered under his lease, cannot make an express surrender, for the technical reason that, until his entry, there is "no reversion in which the possession may drown, "^ and that in case of a lease to take effect in futuro, there can be no express surrender, since there is no reversion, the lessee having merely an inieresse termini}^ Whether the above distinctions in this regard would be recognized at the present day may be doubted, and certainly a transfer, by one having a pres- ent term, who has not yet entered, to the lessor or his transferee, might well be regarded as extinguishing all rights under the lease, w^hether or not it be called a surrender.^ ^ One claiming under an assignment of the leasehold has the same right as the original lessee to surrender such interest. Be In Brandt v. Phillippi, 82 Cal. lease," justifying him in leasing to 640, 23 Pac. 122, 7 L. R. A. 224, the another. court speaks of the lease as being « Sheppard's Tourhstone. 303". "waived and abandoned by mutual t Zouch v. Parsons, 3 Burrow, 1794. consent." In Gazzolo v. Chambers, s Thompson v. Leach, 2 Vent. 198, 73 111. 75, it was held that, the les- note. See authorities cited 2 Tif- see having refused to state whether fany. Real Prop. § 563. he would take possession under his » Bac. Abr., Leases (S) 2, 2. lease if a former tenant were gotten lo Co. Litt. 338 a. out, the lessor could regard this re- n Compare ante, § 37. fusal as an "abandonment of the § 188 PARTIES. 1311 even though he has not entered under the assignment,!^ as has an assignee by operation of law, such as an executor or admims- The surrender must obviously be by one who has power of dis- position over the particular estate sought to be surrendered. Ac- cordingly, a surrender, by a husband, of the leasehold interest m premises occupied by him as a homestead, is invalid without the joinder of his wife, he having no power by his sole conveyance to dispose of the homestead.i^ And one of several joint les- sees cajinot, by a surrender, destroy the interests of the others,!^ though he may, it seems, surrender his own undivided mterest.^s b Persons to v/hom surrender may be made. A surrender can be made only to a person having the next immediate estate following (in possession) upon the particular estate surrendered.^^ Accordingly, a subtenant cannot surrender to the chief land- lord, unless the latter has first acquired the original leasehold m- tere'st.18 For the same reason, ''if a lessee grants part of his estate to the lessor, whereby a reversion continues in himself, this is no surrender; as if a lessee for twenty years grants all his estate to the lessor, except one year, month or day, at the end of the term, this is not any surrender, because the lessee has a re- version, "i» and consequently there is an estate intervening in possession between that surrendered and that of the person to whom the surrender is made. If the landlord has, during the term, made another valid lease which is to take eft'ect during the term, a "concurrent" lease,i»'* the reversion on the first lease is vested in the second lessee and the surrender must be made to him.20 But if the second lease is by its terms not to take effect until the termination of the first i2Bac Abr Leases (S) 2, 2. 846, 27 L. R. A. 234, the court stated i3Sheppard's Touchstone. 303; that two of the lessees had at least Deane v. Caldwell, 127 Mass. 242. tacit authority to act for the third i4Beranek v. Beranek, 113 Wis. lessee in this respect. 272 89 N. W. 146. ^^ Sheppard's Touchstone, 303. 15 Williams v. Vanderbilt, 145 111. it Sheppard's Touchstone, 303. 238 34 N. E. 476, 21 L. R. A. 489, isB^c. Abr., Leases (S) 2, 1. 36 Am. St. Rep.' 486; Harford v. "2 Rolle, Abr. 497, quoted in Bur- Taylor, 181 Mass. 266, 63 N. E. 902 ton v. Barclay, 7 Bing. 745. (sembl'e); Edmonds v. Mounsey, 15 lea See ante, § 146 d, at note 24. Ind. App'. 899, 44 N. E. 196. In 20 Edwards v. Wickwar, L. R. 1 Eq. Hooks V. Frost, 165 Pa. 238, 30 Atl. 403; Comyn, Landl. & Ten. 336. 1312 SURRENDER. § 189 term, that is, if it is a lease "in reversion," it passes no present interest in the reversion, and the surrender of the first leasehold must be made to the original lessor.^i Provided the person to whom the surrender is made has the immediate reversion, it is immaterial that his only interest is a term of years shorter than that surrendered.22 But an estate for life cannot be surrendered to one who has a reversion for years only.23 In the ease of a reversion held in joint tenancy, a surrender to one joint tenant is effectual as to all.^^ A surrender to an infant or insane person is, no doubt, like any other conveyance to such a person, valid, so far as for the bene- fit of such person, until repudiated by him after attaining full legal eapacity.25 § 189. Express surrander. a. Necessity of writing. There is, in the law of surrender, a distinction of primary importance, between a surrender in ex- press terms and a surrender which the law implies from the acts of the parties, a surrender "by operation of law." We will first consider the requisites and characteristics of a surrender m express terms, known as an "express surrender" or as a sur- render "in fact" or "in deed." Such a surrender may be of the leasehold interest in either a part or in all of the premises.^^ At common law, while an express surrender of a particular estate in a thing which lay in grant, that is, in an "incorporeal" 21 Smith V. Day, 2 Mees. & W. 684. held in joint tenancy or as tenants This is implied in the decision in in common. In Churchill v. Lam- Dlckson V. Lehnen, 37 Fed. 319, that mers, 60 Mo. App. 244, it was de- the prior lessee has no right to sur- cided that an acceptance of a sur- render possession to the lessee In render by one joint lessor bound the reversion. other, so as to bar any recovery for 22 Bac. Abr., Leases (S) 1, 2; rent, on the ground that one of two Hughes V. Robotham, Cro. Eliz. 302. joint obligees can release an obli- 2s Sheppard's Touchstone, 303. gation. 24 Co. Litt. 183 a, 192, 214 a; 3 2r, gee authorities cited 2 Tiffany, Preston, Conveyancing, 24. But in Real Prop. §§ 502, 503. Sperry v. Sperry, 8 N. H. 477, it 2n Bac. Abr., Leases (S) 2, 3; was decided that a surrender to one Pleasant v. Benson, 14 East, 234; of two joint lessors was insufficient. Ehrman v. Mayer, 57 Md. 612, 40 Am. It does not appear whether they Rep. 448. § 1S9 IN EXPRESS TERMS. 1313 thing, as well as of a particular estate in a "corporeal" thing which, as not being a present estate in possession, was transfer- able by grant only, could be made only by writing under seal, a particular estate which was transferable by livery of seisin or by word of mouth, such as a present estate for life or for years in a corporeal thing, could be surrendered by word of mouth mere- ly.27 This was, however, changed by the provision of the Statute of Frauds (St. 29 Car. 2, c. 3, § 3), that no leases, estates or in- terests of freehold or terms of years, or any uncertain interest in lands, tenements or hereditaments, should be assigned, granted or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting or surrendering, or his agent thereunto lawfully authorized by writing, or by act and operation of law. This provision has been recognized as operative in at least one state in this country ,28 while in a few others a provision expressed in substantially similar language has been adopted.^^ In New York it is provided that no estate or interest in lands, other than leases for a term not exceeding one year, shall be granted, assigned or surrendered, unless by act or operation of law, or by deed or conveyance in writing,3o and approximately similar language has been adopted in a number of other states.^i In Maine it is merely provided that no estate or interest in lands can be granted, assigned or surrendered, unless by writing signed by the grantor or his attorney,32 and in other New England states a similar provision is found, with the addition of an ex- 27 Co. Lltt. 338a; Sheppard's so Real Prop. Law, § 207. See Touchstone, 300. Coe v. Hobby, 72 N. Y. 145, 28 Am. 2s In Maryland. See Lamar v. Mc- Rep. 120; Ramsay v. Wilkie, 36 N. Namee, 10 Gill & J. (Md.) 126, 32 Y. St. Rep. 864, 13 N. Y. Supp. 554. Am. Dec. 152; Lammott v. Gist, 2 si Michigan Comp. Laws 1897, § Har. & G. (Md.) 433. Also, per- 9509; Minnesota Rev. Laws 1905, haps, in Washington. See Hart v. § 3457; Montana Rev. Codes 1907, § Pratt, 19 Wash. 560, 53 Pac. 711; 79^7. 2^ehraska Comp. St. 1905, § Richards v. Redelsheimer. 36 Wash. gg.^. ^,^^^^^^ ^^^p ^^^^ ^^^^^ 325, 78 Pac. 934. ^ 2694; Utah Comp. Laws 1907, § 29Kirby's Dia;. St. Arkansas, 1904, . -r^ „^ ho^o o .,%, oi. ^nn^ ^ oAAo 1974; Wisconsin Rev. St. 1898, § § 3665; Florida Gen. St. 1906, § 2448; „ '/ Missouri Rev. St. 1899. § 3415; 2 2302. See Kittle v. St. John. 7 Neb. Gen. St. New Jersey, p. 1602. § 2; 73; Biirnham v. O'Grady, 90 Wis. Pennsylvania Act March 21, 1772; 461, 63 N. W. 1049. South Carolina Civ. Code 1902. § 32 Rev. St. 1903, c. 75, § 13. 2651. L. and Ten. 83. 1314 SURRENDER. § Igg eeption in favor of a»n assignment or surrender "by operation of law. "23 In some states, where the local statute does not in terms require any writing in the case of a surrender, there are express provisions that any interest in lands, or any interest greater than a lease for a term named, can be transferred or assigned only by writing,34 and these, it would seem, are applicable to a surrender as well as to any other co-nveyance.ss In some states there are statutory enactments directed in terms against oral contracts for the sale or transfer of interests in lands, but not against oral transfers themselves. So far as such a provision might in any state be construed as prohibiting oral conveyances of land, it would, it seems, apply to conveyances by way of surrender.^s The third section of the English Statute of Frauds, requiring a surrender to be in writing, contains no exception in reference to leases for short terms, such as, by the previous sections, exists in connection with the requirement of a writing for the creation of a leasehold interest. And the English cases are to the effect that the requirement of a writing applies to a surrender of a leasehold interest which, under the previous sections, is suscepti- ble of creation orally .37 In Pennsylvania, however, strong dis- approbation of these decisions has been expressed, on the ground of the improbability that the legislature could have intended to 33 Massachusetts Rev. Laws 1902, c. interests in lands would supply its 127, § 3; Neiv Hampshire Pub. St. place. 1901, c. 137, § 12; Vermont Pub. St. so The provision of the Delaware 1906, § 2582. statute (Rev. Code, p. 526, § 7) that 34 See e. g., California Civ. Code, no action shall be brought on "any § 1091; Connecticut Gen. St. 1902, § contract or sale of lands, tenements 4029; Burns' Ann. St. Indiana 1901, or hereditaments, or any interest in § 6650; Kentucky St. 1903, § 490; or concerning them," unless in writ- North Dakota Rev. Codes 1905. § ing, seems to have been regarded as 4968; Rhode Island Gen. Laws 1906, requiring a surrender to be in writ- c. 202, § 2. ing. Logan v. Barr, 4 Har. (Del.) 35 But in McKenzie v. City of Lex- 546. ington, 34 Ky. (4 Dana) 129, it is 37 Botting v. Martin, 1 Camp. 317; decided that the failure to re-enact Mollett v. Brayne, 2 Camp. 103; the third section of the English Doe d. Read v. Ridout, 5 Taunt. 519. statute of frauds is evidence of an See the discussion of these and other Intention to disppn<=e with the form- cases in Browne, Stat, of Frauds, § ality of a writing in the case of a 45. The same view is apparently surrender, and there is no suggestion taken in Logan v. Barr, 4 Har. that the srcneral provisions of the (Del.) 564. local statute as to conveyance of . jc;9 IN EXPRESS TERMS, 1315 require greater formalities for the extinction of the interest than for its creation.38 in New York it has been decided that the statutory provision requiring a writing for the surrender of "any estate or interest in lands other than for a term not exceeding one year" does not require a writing if at the time of the surren- der less than a year of the term remains outstanding.^^' 4o b. By cancellation of lease. It seems that, before the Statute of Frauds, a cancellation of the lease, in pursuance of an agree- ment by the parties, would have been sufficient as a surrender, this showing, as strongly as an oral surrender, the intention of the tenant of the particular estate to relinquish his interest to the reversioner, and the intention of the latter to accept the re- linquishment.41 That the statute, however, renders the cancel- lation of the lease ineffective as a surrender is well settled,'*^ and the fact that the lease is found in the possession of the lessor in a cancelled state does not, it has been decided, warraiit any inference that there was a written surrender which has been lost." It is said by Chief Baron Gilbert in this regard that "the intent of the Statute of Frauds was to take away the man- ner they formerly had of transferring interests to lands, by signs, symbols, and words only; and therefore, as a livery of seisin on a parol feoffment was a sign of passing the freehold before the statute, but is now taken away by the statute, so I take it that the cancelling of a lease was a sign of a surrender before the statute, but is now taken away, unless there be a writ- ing under the hand of the party."** According to one or two of the older authorities, indeed, it seems that a cancellation of a lease might under some circumstances have the effect of revesting the estate created thereby in the lessor, not as being equivalent to an oral surrender, but as destroying all evidence of the demise.^' ssMcKinney v. Reader, 7 Watts Thomas, 9 Barn. & C. 2S8; Rowan v. (Pa.) 123. This view is approved in Lytle, 11 Wend. (N. Y.) 616. Greider's Appeal, 5 Pa. 422, and an 43 Doe d. Courtail v. Thomas, 9 Indiana case is in accord therewith. Barn. & C. 288. Ross V. Schneider, 30 Ind. 423. 44 Magennis v. MacCullogh, Gilb. 39, 40 Smith V. Df-vlin, 23 N. Y. 363. Eq. Gas. 235. 41 See Magennis v. MacCullogh, 45 See Anonymous, Moore, 35, pi. Gilh. Eq. Gas. 235. 116; Vin. Abr., Fails (U) ; Bac. 42 Roe d. Berkeley v. Archbishop Abr., Leases (J). By some authori- of York, 6 East, 86; Ward v. Lumley, ties such effect is to be given to the 5 Hurl. & N. 87; Doe d. Courtail v. cancellation of a lease or other con- 1316 SURRENDER. | 189 Dut such a theory has been entirely repudiated in modern times, it being a positive rule, in almost every jurisdiction, that the can- cellation of an instrument of conveyance, after its delivery, does not revest the estate in the maker thereof.'^^ The question whether a cancellation of the lease was, before the Statute of Frauds, equivalent to an oral surrender, is of in- terest in those states in which there is no statutory requirement that a surrender be in writing. In Illinois, where such is the case, it was decided by the intermediate appellate court, quoting the above language of Chief Baron Gilbert, that a surrender may be made by cancellation.^''' But a different view has been taken in the highest court of the state, on the ground that the cancellation of a deed will not destroy its eff'ect, though it is at the same time said that the cancellation of the lease may, in connection with the subsequent conduct of the parties, authorize a finding of a sur- render, as a matter of fact.^^ In that state then, it appears that, while an oral surrender is valid, a cancellation is not, of itself, proof of an intention to surrender, and so equivalent to an oral surrender, but it must be accompanied by other evidence of such an intention, to make it effective for this purpose. c. Necessity of seal. Since, at common law, a surrender of a present estate in land did not require any writing, and the Statute of Frauds contained no requirement of a seal, it seems clear that, in the absence of a local statutory requirement to that effect, there is no necessity of a seal to render such a surrender valid, and this is so even though the lease itself be under seal, at least if not required to be under seal.^^ In the case, however, of things lying vej'ance when the subjpct thereof Is ferred by grant. Stewart v. Aston, 8 a thing which lies in grant, as an in- Ir. C. L. 35. And see Ward v. Lum- corporeal hereditament, but not when ley, 5 Hurl. & N. 87. It is of a thing which lies in liv- 46 See cases cited in 2 Tiffany, ery, the grant being in the former Real Prop. p. 934, and 2 Cyclopedia case regarded as the essential instru- Law & Proc. 187. mentality of transfer. See Moor v. 47 Peidler v. Fish, 14 111. App. (14 Salter, 3 Bulst. 79; Miller v. Man- Bradw.) 29. waring, Cro. Car. 399; Gilbert, Evi- 48 Brewer v. National Bldg. Ass'n, dence. 111, 112. But this position 166 111. 221, 46 N. E. 752, afg. 41 111. has been denied. Bolton v. Bishop App. 223. of Carlisle, 2 H. Bl. 259. And there is 49 Co. Litt. 338 a; Farmer v. Rog- evldently no such distinction at the ers, 2 Wils. 26; Peters v. Barnes, 16 present day, since corporeal things Ind. 219; Allen v. Jaquish, 21 Wend. as well as incorporeal are trans- (N. Y.) 628. In Roe v. Conway, 74 § IS9 IN EXPRESS TERAIS. 1317 in grant, such as incorporeal hereditaments, or future estates, a seal was at common law necessary to validate a surrender thereof, since no other mode of transfer of such an interest was recog- mzed,5° and it would seem that this requirement may be regarded as still existent, though an occasion for its application would, in this country at least, rarely arise. d. Necessity of acceptance. At common law, a surrender, it was decided, is sufficient without any acceptance thereof by the person to whom it is made, the same rule being adopted as regards a surrender as was applied to other conveyances.^^ In a number of states, on the other hand, the rule has been declared that a con- veyance, except when made to an infant or other person not sui juris, is not valid until accepted by the grantee,^ 2 and this rule would presumably apply in the case of a surrender. Even in jurisdictions where, as in England, an acceptance is not required, the grantee can repudiate the conveyance when it comes to his knowledge, and since he is ordinarily the only person interested in defeating a conveyance to him by way of surrender, the ques- tion whether his assent is necessary in the first place is not a very practical one. e. Words of surrender, ^hile the words "surrender, grant and yield up" are ordinarily used in a formal instrument in- tended to take effect as a surrender, no particular words are nec- essary, it being sufficient that an intention to transfer the lease- hold interest to the reversioner clearly appears.^3 Accordingly, N. Y. 201, 30 Am. Rep. 298, however, contract. Alschuler v. Schiff, 164 it is said to be "a serious question III. 298. 45 N. E. 424. Tlie common- ■whether a lease for ten years can be law authorities do not thus view a cancelled and surrendered by an in- surrender as a discharge of a con- strument not under seal." The stat- tract, but, as above stated, regard it ute of that state requires a seal in as a reconveyance of the estate the case of a lease only when it is of created by the demise. a freehold interest, and contains no so Co. Litt. 338 a; 1 Wms. Saund. express requirement of a seal on a 236 a, note 9. surrender. In Illinois it has been ei Sheppard's Touchstone (Pres- def*irled that the rule forbidding the ton's Ed.) 307; Thompson v. Leach, modification of a sealed contract by 2 Vent. 198. parol does not prevent a valid sur- 52 See decisions cited 2 Tiffany, render not under seal, though the Real Prop. § 407, note. lease was under seal, for the reason ss Sheppard's Touchstone, 306; that such rule does not apply in the Farmer v. Rogers, 2 Wils. 26; Wed- case of the absolute discharge of a dall v. Capes, 1 Mees. & W. 50; Ap- 1318 SURRENDER. § igg an instrument in form a lease of the premises by the tenant to the landlord has been regarded as sufficient as a surrender,^'* as has what was in terms an ' ' agreement ' ' for the relinquishment of the leasehold, it being intended to take effect as a surrender.^^ Ap- parently, in England, where a mortgage transfers the legal es- tate to the mortgagee, a mortgage of the leasehold by the tenant to his landlord would take effect as a surrender,^^ but such a result could not follow in any jurisdiction where a mortgage does not transfer the legal title.^^ A recital in a second lease to one already a tenant under a previous lease, that the previous lease has been surrendered, is not, it has been decided, sufficient as an express surrender of the previous lease, for the reason that the recital may be satisfied on the theory that the second lease operates, as hereafter explained, as a surrender of the first by operation of law, and it does not purport itself to be a relinquishment of the interest under a prior lease.58 In Iowa it appears to have been considered that a recital in a receipt for rent that the lease has been surrendered is valid evidence of a surrender,^^ but it is perhaps questionable whether the statute of that state requires a surrender to be in writing signed by the maker thereof.^o f. Transfer of possessioii. In California it has apparently been decided that an express surrender is not effective as such if the tenant making it retains possession of the premises.^i There peal of Greider, 5 Pa. 422, 47 Am. that state which might be regarded I^ec. 413. as bearing on the subject appears to 54Loyd V. Langford, 2 Mod. 174; be that excluding evidence of a con- Smith V. Mapleback, 1 Term R. 441; tract for the creation or transfer of Shepard v. Spaulding, 45 Mass. (4 any interest in lands, except leases Mete.) 416. for a term not exceeding one year, 55 Harris v. Hancock, 91 N. Y. 340; if not in writing and signed by the Allen V. Jaquish, 21 Wend. (N. Y.) party charged (Ann. Code. § 4625). 628. This provision, however, seems to be s6 See Cottee v. Richardson, 7 regarded as applying to conveyances Exch. 143. as well as contracts to convey (see BTSee Breese v. Bange, 2 E. D. Hughes v. Lindsey, 31 Iowa, 332; Smith (N. Y.) 474. Wickham v. Henthorn, 91 Iowa. 242, R«Roe d. Berkeley v. Archbishop 59 N. W. 276), and consequently of York, 6 East, 86. might be regarded as applying to a B9 Jenkins v. Clyde Coal Co., 82 surrender. Iowa. 618. 48 N. W. 970. oi Kower v. Gluck. 33 Cal. 401. 60 The only statutory provision in And see Coburn v. Goodall, 72 Cal. ^ ^gg IN EXPRESS TERMS. 1319 is little, if any, common-law authority for this view,^^ ^nd there are authorities opposed thereto.^^ It seems that a conveyance by way of surrender, like most other forms of co.nveyance at the present time, should operate to transfer the title, irrespective of the grantor's retention of possession. If the tenant, after execut- ing and delivering a deed of surrender, still occupies the premises by permission of the surrenderee he is, it is true, a tenant of the latter, but his tenancy is not, it seems, under the surrendered lease, but is under a new demise. Even at common law an estate for life, which could ordinarily be transferred only by livery of seisin, could be surrendered without livery ,<54 and, a fortiori, it would seem, a term of years could be surrendered without any equivalent formality. The English decision, before referred to, that a surrender is valid without any acceptance thereof,^^ clearly implies that no transfer of possession is necessary. g. Surrender in future. It is asserted in a modern English case, without any statement of the reasons for such a view, that a surrender cannot be made to take effect in futuro,^^ the actual 498, 19 Pac. 190, 1 Am. St. Rep. 75. seised of the possession, for one can- See, also Porgotson v. Becker, 39 not properly surrender but where Misc. 816, 81 N. Y. Supp. 319, ap- he who surrenders gives possession to parently to the same effect. him who takes by the surrender." 62 In Vin. Abr., Surrender (G) 35, Whatever may be the meaning of it is said that "it is not properly a these latter statements, they evi- surrender, but where he who sur- dently do not support the general renders gives po-^session to him statement made by Viner. who takes by surrender;" citing Bro. cs Sheppard's Touchstone, at p. Abr., Surrender, pi. 13, which in 307, says: "The actual entry of the turn cites Y. B. 22 Hen. 6, 51. The surrenderee into the land is not passage in the year book merely says necessary." To the same effect is that it was agreed by the judges, Bro. Abr., Surrender, pi. 50; Vin. with one exception, that "If I enfeoff Abr., Trespass (S) 9. And Com- two persons to hold to them and to pare Lord Hale's note to Co. Litt. 57 the heirs of one, and he who has the that "if tenant for years surrenders freehold surrenders to his cotenant, and still continues possession, he is this surrender is void by reason of tenart at sufferance or disseisor at the joint possession;" while Brooke election." says that "if I enfeoff two, to have to 64 Co. Litt. 50 a; 2 Blackst. Comm. them and the heirs of one, he who 326. See McLaughlin v. Kennedy, has the freehold cannot surrender 49 N. J. I.aw, 519, 10 Atl. 391. to the other by reason of the joint' 65 Thompson v. Leach, 2 Vent. 198. possession, for the freehold cannot 66 Doe d. Murrell v. Milward, 3 merge in the reversion by reason Mees. & W. 328, per Parke, B. that he who has the fee is jointly 1320 SURRENDER. ^ Igg decision being, however, merely that a notice by the lessee of an intejition to give up possession at a certain date, though assented to by the lessor, did not constitute a surrender. To apparently the same efiiect as the above dictum is that of Coke that "he who hath a lease for twenty years cannot surrender the last ten years by any express surrender, saving to him the first ten years. "^" On the other hand, it is asserted hj writers of authority that a surrender may be made subject to a condition precedent,^^ and a surrender subject to such a conditio a is necessarily, so long as the condition is unsatisfied, one to take effect in futuro. In New York it has been decided that a surrender may be made to take effect in futuro, and this effect was given to a mere agree- ment by the lessee that, if he failed to make certain improve- ments by the date named, he would "then relinquish the con- tract, "^^ language which might, perhaps, as well have been construed as a mere agreement to make a surrender in futuro."^^ In New Jersey, also, it has been decided that a surrender may be made to take effect in futuro.'^''- The view that a surrender cannot be made to take place in futuro is presumably based on the theory that a surrender, in its very nature, implies a present yielding up of the particular estate. In any case, however, if the instrument is in terms a transfer of the particular estate to the reversioner, to take effect in possession from and after a time or event named, it will, it seems, so operate, and, upon the arrival of such time or the happening of the event named, the particular estate will become vested in the reversioner, and will be merged.^^ There is no 67 Ives' Case, 5 Coke, 11 a. Kenzie v. City of Lexington, 34 Ky. 68 The statement in Sheppard's (4 Dana) 129. Touchstone, 307, repeated by Mr. 7i Mundy v. Warner, 61 N. J. Law, Preston in his annotations thereto, 395, 39 Atl. 697. The syllabus says that a surrender may be on a con- that the agreement was to "sur dition precedent or subsequent, is render possession" at a certain date, quoted with approval in Doe d. Bid- but the court speaks of it as an dulph V. Poole, 11 Q. B. 713. agreement "to surrender the term." 69 Allen V. Jaquish, 21 Wend. (N. An agreement to surrpnder posses- Y.) 628. sion in the future has, in England, 70 An agreement by the lessor to apparently, been regarded as not accept the lessee's proposition to effective as a surrender. Weddall v. surrender provided he would pay the Capes, 1 Mees. & W. 50. rent due was apparently regarded 72 in Harrison v. Middleton, 11 as not constituting a surrender. Mc- Grat. (Va.) 527, it was held that an X 190 BY OPERATION OF LAW. 1321 question that a surrender may be made subject to a condition subsequent, the effect of the condition being to revest the lease- hold interest in the tenant upon the happening of the contingency named. '^^ h. Surrender for purpose of new lease. It has been said, in an English case, that where a surrender in fact is so expressed as to show that the intention of the parties is to make the sur- render only in consideration of the grant of a new lease to the same lessee, the sound construction of the instrument, in order to effectuate this intention, would make the surrender conditioned to be void in case the new lease is for any reason voidJ* The rule, however, appears to be different if such intention is not ex- pressed in the instrument of surrender.^^ In a case in New York it was decided that, after an express surrender, the fact that a new lease, given in place of the former lease, was void, did not render the surrender nugatory, the new lease not being the only consideration for the surrender of the former lease; and it was at the same time said that the former lease could be reinstated only by a suit in equity on the ground of failure of consideration, fraud, or mistake.'^ ^ § 190. Surrender by operation of law. a. General nature. The provision of the English Statute of Frauds, requiring a surrender to be in writing, excepts from its scope surrenders "by act and operation of law." A like ex- ception is found in most of the statutes in this country bearing on the subject.'^'^ But even in states where there is no express agreement under seal by which the interests. See 3 Preston, Convey- tenant agreed to "surrender" the ancing, 55, 493. premises at a certain date rendered 73 Co. Litt. 218b; Sheppard's him a mere tenant at will or at suf- Touchstone, 307. ferance after that date. That a t4 Doe d. Egremont v. Courtenay, future interest may be created in a 11 Q. B. 702. See, also, Doe d. Bid- term of years, see Gray, Perpetui- dulph v. Poole, 11 Q. B. 713. ties (2d Ed.) § 809 et seq.; 2 Pres- 75 Doe d. Murray v. Bridges, 1 ton, Abstracts of Title, 6, 144. Mer- Barn. & Adol. 847. ger could not take place until such t6 Clarke v. Barnes, 76 N. Y. 301, interest becomes a vested estate by 32 Am. Rep. 306. the happening of the contingency or 77 See the statutes above referred arrival of the time named, the law of to of Arkansas, California, Florida, merger not applying to executory Massachusetts, Michigan, Minnesota, 1322 SURRENDER. § 190 provision in that regard, the doctrine of surrender by operation of law is recognized, ''■^ as it is in states where there is apparently no restriction imposed on the making of an oral surrenderj^ The courts have considered that there is a surrender by "act and operation of law" when transactions have taken place between the reversioner and the tenant of the particular estate, the landlord and tenant, which create a condition of facts in- consistent with the continued operation of the lease. The effect thus given to the transactions of the parties has been stated to be based on the theory of estoppel,8o jj^^ q]i ^y^q elements of aai estoppel are certainly not present in every case of such a sur- render. Occasionally the theory seems to be asserted that the acts of the parties thus operate as a surrender because they show an agreement that the leasehold interest shall be surrendered,^^ but a surrender cannot properly be regarded as taking place by operation of law when it takes place by agreement of the par- ties, even though such agreement is manifested by acts and not by words ;82 and even in jurisdictions where, owing to the absence of a statute requiring a surrender to be in writing, the mere acts of the parties might effect a surrender as showing an agreement to that effect, this would be properly termed an express surrender rather than one by operation of law. It is more satisfactory, perhaps, to regard the various decisions on the subject as involving an application of the principle of estoppel, Missouri, Montana, Nebraska, Ne- National Union Bldg. Ass'n, 166 111. vada, New Hampshire, New Jersey, 221, 46 N. E. 752; Meelier v. Spals- New Yorlt, Pennsylvania, Vermont, bury, 66 N. J. Law, 60, 48 Atl. 1026; Utah, Wisconsin. Bedford v. Terhune, 30 N. Y. 453, 86 78 See Otis v. McMillan, 70 Ala. 46; Am. Dec. 394; Tobener v. Miller, 68 Woodward v. Lindley, 43 Ind. 333; Mo. App. 569; Hart v. Pratt,' 19 Withers v. Larrabee, 48 Me. 570; Wash. 560, 53 Pac. 711. Brown v. Cairns, 63 Kan. 584, 66 82 So in Felker v. Richardson, 67 Pac. 639 (semble). N. H. 509, 32 Atl. 830, it is said, per 79 See Ledsinger v. Burke, 113 Ga. Carpenter, J., "A surrender by 74, 38 S. E. 313; Brown v. Cairns, 107 agreement, whether express or im- lowa, 727, 77 N. W. 478; Ladd v. plied, is the act, not of the law, but Smith, 6 Or. 316: Edwards v. Hale, of the parties. To constitute a sur- 37 W. Va. 193, 16 S. E. 487. render by operation of law, overt so See Lyon v. Reed, 13 Mees. & W. acts of both parties inconsistent 285. with the continuance of the term SI See e. g., Talbot t. Whipple, 96 are essential." Mass. (14 Allen) 177; Brewer v. BY OPERATION OF LAW. 132a 8 I'JU somewhat modified to snit what the courts may have considered the exigencies of the case. The transactions which have been regard d as giving a rise to a surrender by act and operation of law are of various distinct classes, and they will be considered "r^Actptance of new interest-(l) Acceptance of lease- (a)'Th3 general doctrine. If the tenant accepts from the land- lord a new lease, to take effect during the continuance of the in^ terest created by the previous lease, this is regarded as effecting a surrender bv operation of law on the theory that, by the accept- ance of the'new lease, the tenant becomes a party to an act the validity of which he is estopped to dispute, but which cannot be valid if the estate created by the first lease continues to exist. This view of the effVct of the acceptance of a second lease was fully recognized before the Statute of Frauds,«^ and therefore cannot be regarded, as may perhaps other instances of surrender by operation of law, in the light of an attempt to carry out the agreement of . the parties, though not expressed in writing, and thus to avoid the operation of the statute. In the case of a so-called " lease in fee," which is properly a conveyance in fee, reserving a rent, there can obviously be no surrender, since there is no reversion, but the subsequent takmg of a new lease by the grantee has been regarded as a release of all rio-hts under the former conveyancers \n order that the new lease result in a surrender, it need not be for as great a term as the first lease,8« since it is the tenant's acceptance of a new, inconsistent interest which is the controlling consideration.^^ And for the same reason, though the second 83 T von Y Reed, 13 Mees. & W. Steward, Plowd. 107 b; Ives v. Sams, 285 o" V ScMillan, 70 Ala. 46; Cro. Eliz. 522; Com. Dig.. Surrender Welcome v. Hess, 90 Cal. 507, 27 Pac. (11). v. 19 It Z... V. DOW, 99 Mass. 18; s. Springsteln . Scbermerhorn. 12 ^ J- ,r rifivic! 17 Neb 228, 22 N. Johns. (N. Y.) 357. T^ Lr n v.'wH.bt. 65 Neb. se We. Case, 5 Co.e, 11 a Dodd v. rI; 91 N W 580; Schieffelin v. Car- Acklom. 6 Man. & G. 672, 679, En- . ^'^ Wend (N Y ) 400; Coe yeart v. Davis. 17 Neb. 228, 22 N. W. 'Tobbv Mn Y^41, 2 Am. Rep. 449; Wade v. South Penn. Oil Co.. V. Hobby, 72 N. ^- 1*^' 3g0 33 g. e. 169. 120; Edwards v. Hale, 3. W. Va. 193. 45 W , ^ ^^^^ ^^ ^_ ^^^^^_ 1(1^13487 i>^'j 84 Perkins. § 617; Sheppard's Ins v. Martin, Cro. Eliz. 605. Touchstone.' 301; Fulmerston v. 1324 SURRENDER. § 190 lease is not to begin till some time named in the future, there is an immediate sui-render of the interest under the first lease. But a new lease which is not to take effect until after the end of the existing term would not effect a surrender of such term, since there is no inconsistency in the interests created by the two leases.s^ If it is uncertain whether the interest created by the new lease will begin before the end of the existing term, as when it is subject to a condition precedent, which may or may not occur before that time, the second lease will not, it seems, effect a surrender until the eo-ntingency actually happens, and conse- quently the surrender will operate only on the residue of the term then outstanding.s9 It has been decided in this country that a surrender will result from the making of a new oral lease, provided it is valid as such, although the original lease was in writing or even under seal.'^'^ This was the rule in England before the Statute of Frauds,^^ and, in spite of the dictum that "it would be most dangerous to allow a term created by an express demise ta be thus got rid of by parol evidence, "^2 there are modern eases in that country to the same effect, though without any direct consideration of the question.93 Thus, it has there been decided that where the tenant agreed with the landlord that the latter should give a new lease to him and to another, and they entered pending the execution of the new lease, they became tenants at will or from year to year, with the result that the term previously existing in the single 88Bac. Abr., Leases (S) 2, 1; lease. There the court, however, Tracy v. Albany Exch. Co., 7 N. Y, discusses the question as one of the (3 Seld.) 472. modification of a contract by a sub- so Bac. Abr., Leases (S) 2, 1; An- sequent agreement, and there is no onyraous, 4 Leon. 30. reference to the doctrine of an im- 80 Schiefflin v. Carpenter, 15 Wend, plied surrender. That a new oral (N. Y.) 400; Coe v. Hobby, 72 N. Y. lease is insufficient in such case, sea 141, 28 Am. Rep. 120. See Evans v. Leavitt v. Stern, 1.59 111. 526, 42 N. E. McKanna, 89 Iowa, 362, 56 N. W. 527, 869, ante, note 5 a. 48 Am. St. Rep. 390; Nachbour v. 9i Com. Dig., Surrender (T 1.) Wiener, 34 111. App. 237. In Andre 92 per Pollock, C. B., in Foquet v. v. Graebner, 126 Mich. 116, 85 N. W. Moor, 7 Exch. 870. And to the same 464, an oral agreement between the effect, see Doe d. Huddleston v. John- lessor and lessee for a term of years son, McClel. & Y. 141. that the holding should be from 03 Fenner v. Blake [1900] 1 Q. B. month to month was given effect as 426; Peter v. Kendal, 6 Barn. & C. terminating the rights under the old 703. t lQ^) BY OPERATION OF LAW. 1325 tenant was surrendered.^^ The view that a surrender may be thus effected by a new verbal lease is no doubt contrary to the spirit of the Statute of Frauds, but it seems to be a logical ap- plication of the general rule as to a surrender resulting from a new lease, and it is in accordance with the apparent tendency of the courts to enlarge the scope of the exception in the statute of surrender by operation of law. The operation of a second lease as effecting a surrender of the term previously existing is not prevented by the fact that it is subject to a condition subsequent, which may cause a forfeiture of tlie interest created thereby, and if the condition is enforced both leases will thereafter be inoperative.^^ If the second lease covers but a part of the land covered by the first lease, there is a surrender as to such part and no more.^^ If one only of two or more joint lessees accepts a second lease, there is a surrender of his undivided interest, and not of the interests of the others, unless he was authorized to act for them.^^ (b) Intention of parties. Since a surrender by reason of the making and acceptance of a new lease takes place by operation of law, and not by the act of the parties, it would seem logically to follow that the intention of the parties is immaterial, and there are occasional dicta to that effect.^s The view has, however, been asserted that the new leasfe does not result in a surrender when this is contrary to the apparent intention of the parties.^^ Thus, a contrary intention was inferred and given effect when to hold otherwise would have deprived the tenant of the benefit of the covenant in the prior lease for compensation for improvements erected by him.!*^*^ 94 Hamerton v. Stead, 3 Barn. & C. Stafford, 28 U. C. C. P. 229. And see 4Y8. Seldon v. Buchannan, 24 Ont. 349. 05 Co. Litt. 218b; Sheppard's s^ Sheppard's Touchstone, 302. Touchstone, 301; Bac. Abr., Leases as Lyon v. Reed, 13 Mees. & W. (S 2, 1); Doe d. Biddulph v. Poole, 285; Brown v. Cairns, 107 Iowa, 727, 11 q'. B.'lS. 77 N. W. 478; Enyeart v. Davis, 17 06 Carnarvon v. Villebois, 13 Mecs. Neb. 228, 22 N. W. 449. & W. 342; Morrison v. Chadwick, 7 so Smith v. Kerr, 108 N. Y. 31, 15 C. B. 266*; Bac. Abr., Leases (S3). N. E. 70, 2 Am. St. Rep. 362; Wit- But in Banker v. Braker, 9 Abb. N. mark v. New York El. R. Co., 76 C. (N. Y.) 411, such a new lease of Hun, 302, 27 N. Y. Supp. 777; Flagg part was regarded as rendering the v. Dow, 99 Mass. 18 (semble); former lease inoperative. And such Thomas v. Zumbalen, 43 Mo. 471. effect was, under the circumstances, looVan Rensselaer's Heirs v. Pen- given to a' lease of part in Ramsay v. niman, 6 Wend. (N. Y.) 568. But 1326 SURRENDER. § 190 In England, while the courts have not gone to the same extent as the decisions last referred to in refusing to give the effect of a surrender to the making and acceptance of a new lease when a sur- render was apparently not intended, they have gone so far as to hold that in order that the transaction may thus operate, the lease must be good and sufficient to pass an interest according to the intention of the parties. ^'^i Thus, it has been decided that if the lease is made by a tenant for life, undertaking to act under a power, and the lease is not a valid execution of the power, a sur- render does not result, although the lease was valid until the death of the tenant for life.i"^^ Jq New York, likewise, it has been de- cided that if the second lease is intended to create a term, and, because not executed as required by the Statute of Frauds, it cre- ates merely a tenancy from year to year, no surrender results,^ *^3 and a like decision was made where there was an outstanding dower interest in one who did not join in the second lease. ^''^ Where the second lease was effected by fraud on the part of the lessor, it was held in that state that, in an action for rent, the lessee was entitled to equitable relief in the shape of the cancellation of the second lease and the re-establishment of the fir.st loase.ios if the second lease is void ah initio, its making and acceptance cannot result in a surrender of the first lease.io^ (c) What constitutes new lease. The question of what consti- tutes a new lease or demise for this purpose is one as to which the decisions are not entirely clear. A mere change in the amount of the rent by agreement is not the making of a new lease, i^t and Jungerman v. Bovee, 19 Cal. 354, is The prior lease had been "canceled," apparently contra. but since cancellation does not effect 101 Lloyde v. Gregory, 1 Wm. a surrender in view of the statutory Jones, 405; Davison v. Stanley, 4 requirement of a writing, this would Burrow, 2210. seem to have been immaterial. 102 Doe d. Biddulph v. Poole, 11 Q. ion Roe d. Berkeley v. Archbishop B. 713; Doe d. George v. Courtenay, of York, 6 East, 86; Easton v. Penny, 11 Q. B. 702, per Coleridge, J. 67 Law T. (N. S.) 290. 103 Coe v. Hobby, 72 N. Y. 141, 28 io7 Donellan v. Read, 3 Barn. & Am. Rep. 120; Soymour v. Hughes, Adol. 899; Doe d. Monck v. Geikie, 5 55 Misc. 248, 105 N. Y. Supp. 249. Q. B. 841; Crowley v. Vitty, Exch. 104 Chamberlain v. Dunlop, 12C N. 319; Pronguey v. Gurney, 37 U. C. Y. 4.5, 26 N. E. C36, 22 Am. St. Rep. Q. B. 347; Oldewurtel v. Wiesenfeld, 807. 97 Md. 165, 54 Atl. 969, 99 Am. St. 10.1 Powell V. F. C. Lynde Co., 49 Rep. 427 (semble). In Bowman v. App. Div. 286, 64 N Y. Supp. 153. Wright, 65 Neb. 661, 91 N. W. 580, » ^gQ BY OPERATION OF LAW. 1327 consequently this does not of itself effect a surrender,io8 though it may be evidence, with other facts, to show a new demise and consequent surrender.^o^ And it has been decided that a relm- quishment, by the tenant to the landlord, of the possession of part of the premises, does not effect a surrender of the leasehold m the whole as involving a new demise, whether or not this is ac- companied by a reduction in the amount of rent.no An agreement for a new lease to be made in the future does not have the effect of a new lease in effecting a surrender of the existing tenancy .^ii And the same view has been taken of an agreement by the landlord not to disturb the tenant in his possession until a date subsequent to the end of the existing term, on the ground, it is said, that this was intended as an agreement merely, and not as a demise.1^2 The same might be said, it would seem, of an agree- ment between the landlord and tenant that the former should quit at a certain date prior to the end of the term named in the original lease, but this has been decided, in the same jurisdiction, to involve a new demise, effecting a surrender of the term pre- viously existing.! 13 In this country a new agreement, to the 92 N. W. 580, a different view ap- serted termination of tlie old lease pears to be taken. was based, not on the theory that 108 Coe V. Hobby, 72 N. Y. 141, 28 the making of the stipulation as to Am. St. Rep. 120; Smith v. Kerr, 108 repairs was equivalent to the mak- N Y. 31, 15 N. E. 70, 2 Am. St. Rep. ing and acceptance of a new lease, 362- Hurtt v. Woodland, 24 Md. 393; but rather on the theory that the Taylor v. Winters, 6 Phila. (Pa.) notice to quit and the lessee's ac- 126; Edwards v. Hale, 37 W. Va. 193, quiescence therein effected a termi- 16 S. B. 487; Donnellan v. Read, 3 nation of the lease. But this would Barn. & Adol. 899; Crowley v. Vitty, seem to involve a violation of the 7 Exch. 319; Clarke v. Moore, 1 statute as to oral surrenders. The Jones & L. 723. term "surrender" is not used in the 109 Jones V. Bridgman, 39 Law T. opinion. (N S.) 500; Ex parte Vitale, 47 Law no Holme v. Brunskill, 3 Q. B. Div. T. (N. S.)480. In Conkling v. Tuttle, 495. 52 Mich. 630, 18 N. W. 391, where the i" John v. .Jenkins, 1 Cromp. & lessor before the end of the term M. 227; Sheppard's Touchstone. 301. notified the lesseo to quit, which the n^ Si-^ebotham v. Holland [1895] I latter was about to do, but remained Q. B. 378. in possession on the lessor's prom- ns Fenner v. Blake [inOO] 1 Q. B. ise to make repairs, there was, it 426. This case in effect overrules was decided, a new lease with a Doe d. Huddleston v. Johnston, Mc- valid stipulation for repairs. It Cle^. & Y. 141, though it makes no rather appears, however, that the as- reference thereto.. ^328 SURRENDER. § 190 effect that the landlord should have the option of terminating the lease by notice, has been regarded as not involving the making of a new demise effecting a surrender/^^ but it may be questioned whether such a subsequent modification of the possible length of the term can be given effect otherwise than as a new demise. (d) New leaze to assignee of leasehold. The doctrine that the acceptance by the tenant of a new lease from the landlord effects a surrender of the original leasehold estate finds an occasional application in connection with the question whether a lessee who has assigned is still liable on his covenants. If the original ten- ancy is in full force, the lessee remains liable on the covenants entered into by him in connection therewith, such as that for rent,ii^^ while, if the assignee can be regarded as receiving from the landlord a new lease, a surrender occurs, a.nd the lessee is no longer liable on his covenants. The mere fact that the landlord, after the making of the assignment, in some way recognizes the assignee as holding, not under the old tenancy, but under a new one, may be asserted by the tenant as the making of a new lease, so as to effect the surrender. It is sometimes said that the lessee i . relieved from liability under his covenants if the landlord ac- cepts the assignee ' ' as his tenant, ' ' but this is incorrect. The land- lord almost invariably accepts the assignee as his tenant, and yet the continuing liability of the lessee is generally recognized. The landlord must, in order to thus relieve the lessee from liabil- ity, not only accept the assignee as his tenant, but must also, tacit- ly or expressly, accept him as a tenant holding under a new demise, that is, he must in eft'ect make a new demise to him. The cases are generally to the effect that the mere acceptance by the landlord of the rent from the assignee does not involve a new demise, so as to effect a surrender,!^^'' and it is difficult 114 Coe v. Hobby, 72 N. Y. 141, 28 983; Harris v. Heackman, 62 Iowa, Am. Rep. 120. See Seymour v. 411, 17 N. W. !592; Grommes v. St. Hughes, 55 Misc. 248, 105 N. Y. Supp. Paul Trust Co., 147 III. 634, 35 N. E. 249, to the effect that ordinarily a 820, 7 Am. St. Rep. 248; Bradley v. mere modification of the terms of the Walker, 93 111. App. 609; Detroit lease does not involve a surrender. Pharmacal Co. v. Burt, 124 Mich. 220, 114R See ante, § 157 a (2). 82 N. W. 893; Brewer v. Dyer, 61 114b Copeland v. "Watts, 1 Starkie, Mass. (7 Cush.) 337; Jones v. Barnes, 95; Bonetti v. Treat, 91 Cal. 233, 27 45 Mo. App. 590; Edwards v. Spald- Pac. 612, 13 L. R. A. 418: Cnesta v. inc;, 20 Mont. 54; Rees v. Lowy, 57 Goldsmith, 1 Ga. App. 48, 57 S. B. Minn. 381, 59 N, W. 310; Bouscaren § 190 BY OPERATION OF LAW. 1329 to see how any other view could obtain. The assignee is boiand to pay the rent, and the acceptance from him of such payment involves at most merely the recognition of such liability already existing. To construe such action on the part of the landlord as indicating an intention on his part to create a new tenancy, ex- actly similar to the former tenancy, without any possible object in so doing, seems wholly unwarrantable. As a matter of fact, a landlord accepts payment of the rent from whatever persons offer to pay it, and the idea that in so doing he may be creating a new tenancy does not occur to him. There are, however, cases to the effect that the acceptance of rent from the lessee's assignee does effect a surrender, relieving the lessee from liability on his covenants.^ ^•^'^ Occasionally, the fact that the acceptance of rent from the assignee is accompanied by an oral agreement to release the lessee from liability has been regarded as showing a surren- der,!!'*'^ on the theory, presumably, that this shows a new demise y. Brown, 40 Neb. 722, 59 N. W. 385, sey v. Minnick, 43 Md. 112. And 42 Am. St. Rep. 692; Hunt v. Card- see cases cited ante, § 181 a, note ner, 39 N. J. Law, 530; Creveling v. 659. De Hart, 54 N. J. Law, 338, 23 Atl. In Whicher v. Cottrell, 165 Mass. 611; Wilson v. Lester, 64 Barb. (N. 351, 43 N. E. 114, it Is said that the Y.) 431; Wallace V. Dinning, 11 Misc. fact that the landlord in that case 317, 32 N. Y. Supp. 159; Frank v. received rent from the lessee's ven- Maguire, 42 Pa. 77; Adams v. Burke, dee did not effect a termination of 21 R. I. 126, 42 Atl. 515. So when the tenancy, since the lessor con- there Is a change of tenants conse- tinued to claim the lessee as vendee quently upon a change In the mem- and made out bills for rent against bership of the firm, to the original him, thns implying that otherwise members of which the lease was the receipt of rent from him would made. Graham v. Whichelo, 1 Cromp. have had that effect. & M. 188; Beall v. White, 94 U. S. n^d People's Sav. Bank v. Alex- 3S2, 24 Law. Ed. 173; Laughran v. ander, 140 Pa. 22, 21 Atl. 248; Wal- Smith, 75 N. Y. 205; Doty v. Gil- lace v. Kennelly, 47 N. J. Law, 242; bert, 43 Mich. 203, 5 N. W. 89. And Vandekar v. Reeves, 40 Hun (N. Y.) the fact that the lessor recognizes 430; Golding v. Brennan, 183 Mass. the new members as tenants other- 286, 67 N. E. 239. See Dietz v. Kucks wise than by acceptance of rent (Cal.) 45 Pac. 832. from them has properly no greater Evidence that, at the time the les- effect. See Gault v. Shepard. 14 Ont. see informed the landlord of his in- App. 203. tention to assign the lease, the land- 114c This appears to be the pur- lord said, in referring to certain port of Fry v. Patridge, 73 111. 51; royalties due as rent from the les- Clemens v. Broomfield, 19 Mo. 118; see, that he would get them from the Hutcheson v. Jones, 79 Mo. 496; Kin- assignee, was held to be admissible L. and Ten. 84. 1330 SURRENDER. § 190 to the assignee. In one case a finding of a new demise was re- garded as justified when the lessor not only accepted rent from the assignee, but also made repairs at his request, and, on his abandonment of the premises, bought his personal property, cred- iting the price on the rent, and made no demand on the lessee till after the end of the term.ii^® And likewise, the fact that, the les- see having disposed of a half interest in the premises to another, he paid one-half only of the rent subsequently due, and referred the lessor to such other for the other h.Jf, and that all subsequent bills for rent were thereafter made out one-half against such other, who paid accordingly, was regarded as sufficient evidence of a surrender as to one-half the premises.!^*' The action of the landlord in suing the lessee's assignee on the covenant for rent in the lease, at the instigation of the lessee, has been decided not to show an election to accept the assignee as lessee.^^"*^ In this last case there is a dictum that if such an action against the assignee be brought by the landlord "of his own motion," it might perhaps show such an election. But it seems most questionable whether such an effect should in any case be given to the mere bringing of an action against the assignee on the covenant for rent. It has been the law for many years that the landlord may sue either the lessee or his assignee on such a cove- nant, or may sue both of thera,ii'i^ and it has never before been suggested that by first suing the assignee he loses the right to sue the lessee. Indeed, the fact that he sues on the covenant in the in- strument of lease would seem of itself to be a strong evidence that he regards the lease as still in existence. The giving of a receipt for rent by the landlord in the name of the person to whom the possession has been transferred has been said to be evidence of a recognition of him as lessee,^!^* but this is not conclusive,!!^^ and it would seem to be entitled to but as tending to show that he intended ii4h See Brett v. Cumberland, Cro. to make his own terms with the in- jac. 521; Bachelour v Gage Cro coming tenants, regardless of the ^ar. 188; Sutliff v. Atwood 15 Ohio lease, instead of treating him as as- g^ ^^g. Whetstone v. McCartney 32 signee. De Hart v. Crevelmg, 57 ., ... ^ . „ ,o. , N. J. Law. 642. 32 Atl. 212. ^°- '^'^ ^"'^ ^^t^' § ^'^ ^• ii4eColton V. Gorham. 72 Iowa. "^' Laurance v. Faux, 2 Fost. ft 234, 33 N. W. 76. ^- '*^^- ii4f Fry V. Patridge, 73 111. 51. ^"^ Graham v. Whichelo, 1 Cromp. ii4gWhitcomh v. Cummings, 68 N. & M. 188. H. 67, 38 Atl. 503. BY OPERATION OF LAW. 1331 little weight, when snch person is the lessee's assignee, since the I eelpt woulk naturally be given to the person who ^s -^^^^ p^^ xnary obligation to pay the rent and -^^^^^'^^l'-]'^^^^^ ceipt for rent given to the assignee recxtes that l^^'^f^^^J for a month only, while the original lease was for a logger tim is evidence, as against the landlord of a --/--' "^^ one case this effect seems to have been given to ^^ ^^^^^^^^^^^ with the new tenant making the rent payable monthly instead ot quarterly as in the original lease.ii^"* In one case it is decided that the landlord's assent to an as^ signment by the lessee effects a surrender by operation of law. This is, it is submitted, incorrect.^i^" (2) Acceptance of different class of interest. Not only is a surrender effected by operation of law on the tenant sac^epta^^^^^^^ of a new lease inconsistent with the previous lease, but this result a so ?onows on his acceptance of any other interest in the premis Consistent with such lease, as when ''a lessee for years accep a grant of a rent, common, estovers, herbage, or the W^^, ^or life or years, out of the same lands."-^ It has even been decided tha a tenant by agreeing orally thereafter to hold, not as tenant, but merely as a servant of the lessor, effects a surrender by operation of law ii« Since, however, as servant, one takes no interest m the premises, it is somewhat difficult to perceive such an inconsisten- cy between the new agreement and the pre-existing lease as to have this effect The new agreement seems to involve m effect an oral surrender, invalid under the statute, accompanied by a contract as to the future personal relations of the parties.^^^ There are decisions to the effect that a contract for the sale of the leased premises by the landlord to the tenant effects a XI.. see Detroit Pharmacal Co. v. "-^ Bac. Abr Leases (S) 2 1. Burt 124 Mich. 220. 82 N. W. 893; -« Peter v. Kendal^ « Barn & C Wnson V. Lester, 64 Barb. (N. Y.) 703; Lambert v. McDonnell, 15 Ir C. L. 136. ^^Li Wallace v. Kennelly, 47 N. J. "^ The cases cited appear not to 1141 Wallace v. xv ^^ ^^ ^^^^^^ ^.^^ Gybson v. Searls. ^^iT;. Murray v. Shave, 9 N. Y. Cro. Jac. 84, 177, in which it was de- SuTer C (2 Duer) 182. cided that there was no surrender ii!nBowen v. Haskell. 53 Minn, of the lease of a manor as a result ii4n Bowen V ^^^ lessee's acceptance of the office lUoSee ante, § 157 a (2) at notes of bailiff of the manor. 297-299. 1332 SURRENDER. § 190 surrender by operation of law.iis In England it has been decided tl.at such a contract does not ordinarily have that effect, for the reason that it is impliedly subject to a condition that the vendor shall have a good title, the opinion being expressed, however, that a surrender would, in the absence of such a condition, re- sult as from a new demise, on the ground that one taking posses- sion under a contract for the sale of land is a tenant at will,ii9 a view as to the effect of such holding which has been occasionally asserted there and in this country .120 e. Transfer of possession to landlord— (1) The general doc- trine. A second mode of surrender by operation of law, and one which frequently occurs, results from the relinquishment of possession by the tenant and the resumption of possession by the landlord, whether this is by or without agreement between the parties.^ 21 The theory of such a surrender would seem to be that the revesting of possession in the landlord to the exclusion of the tenant, by the action of both parties, being inconsistent with the continuance of an outsta^nding leasehold in the tenant, both are estopped to assert that the relation of landlord and tenant stiU exists. Such a surrender may be of either the whole or oi merely a portion of the premises.^ 22 118 Lewis V. Angermiller, 89 Hun, 81 Mo. 241; Graham v. Anderson, 3 65, 35 N. Y. Supp. 69. This decision Har. (Del.) 364; Dennis v. Miller, 68 seems to be based largely, however, N. J. Law, 320, 53 Atl. 394; Clator on the fact that this was what the v. Otto, 38 W. Va. 89, 18 S. E. 378; parties intended. A similar decision Goldsmith v. Darling, 92 Wis. 363, Is made in Denison's Ex'rs v. Werl^, 66 N. W. 397; Elliott v. Aiken, 45 7 Serg. & R. (Pa.) 372, and Doe d. N. H. 30; Kelly v. Noxon, 64 McPherson v. Hunter, 4 U. C. Q. B. Hun. 281, 18 N. Y. Supp. 909; El- 449. gutter V. Drishaus, 44 Neb. 378, 63 119 Doe d. Gray v. Stanion, 1 Mees. N. W. 19. In Tully v. Dunn, 42 Ala. & W. 695. 262, 94 Am. Dec. 646, it was held 120 See ante, § 43 a at note 5. that if the lessee failed to take pos- 121 Grimman v. Legge, 8 Barn & C. session, the lessor might "re-enter" 324; Dodd v. Ackiom, 6 Man. & G. and so terminate the lease. This 672; Phene v. Popplewell, 12 C. B. appears to come within the same (N. S.) 334; Shahan v. Herzberg, doctrine, It being presumably imma- 73 Ala. 59; Hart v. Pratt, 19 Wash, terial whether the lessee refrains 560, 53 Pac. 711; Lamar v. McNa- from taking possession or reliu- mee, 10 Gill. & J. (Md.) 116, 32 Am. quishes it after taking it. Dec. 152; Talbot V. Whipple, 96 Mass. 122 See Hewitt v. Hornbuckle, 97 (14 Allen) 177; Williims v. Jones, 111. App. 97; Smith v. Pendergast, 26 64 Ky. (1 Bush) 621; Prior v. Kiso, Minn. 318, 3 N. W. 978; Bless v. § 190 BY OPERATION OP LAW. 1333 The question whether there is an agreement for such transfer of possession is entirely immaterial. The tenant may give his landlord possession by agreement, but more frequently a sur- render occurs as a result of the relinquishment of possession by the tenant and the resumption of posssession by the landlord, either for the sake of protecting the premises from injury, or of saving himself from loss owing to his inability to collect the rent from the tenant. That the landlord may thus take possession on the tenant's abandonment seems to be generally conceded,^^^ but the abandonment must be of a permanent character, and the landlord cannot resume control merely because the tenant has temporarily vacated the premises.124 (2) Eesumption by landlord of possession necessary. The mere abandonment of possession by the tenant, however per- manent he may intend this to be, cannot effect a surrender, re- lieving the tenant from his obligations under the lease, unless the landlord does resume, that is, accept, possession.^^s The tenant Jenkins, 129 Mo. 647, 31 S. W. 938; lins v. Moody, 72 Ma 135; Hunting- Peters V. Newkirk, 6 Cow. (N. Y.) ton v. Parkhurst, 87 Mich. 38, 49 N. 103. W. 597, 13 L. R. A. 83, 24 Am. St. 123 See Shahan v. Herzberg, 73 Rep. 146; Lucy v. Wilkins, 33 Minn. Ala. 59; Crawley v. Mullins, 48 Mo. 441, 23 N. W. 861; Kerr v. Clark, 19 517; Packer V. Cockayne, 3 G. Greene Mo. 132; Laughran v. Smith, 75 N. (Iowa) 111; Haller v. Squire, 91 Y. 205; Reeves v. McComesky, 163 Iowa, 10, 58 N. W. 921; Kiplinger v. Pa. 571, 32 Atl. 96; Barlow v. Wain- Greene, 61 Mich. 340, 28 N. W. 121, wright, 22 Vt. 88, 52 Am. Dec. 79. 1 Am. St. Rep. 584; Torrans v. In Teller v. Boyle, 132 Pa. 56, 18 Rtricklin, 52 N. C. (7 Jones Law) 50; Atl. 1069, it was decided that an Pier V. Carr, 69 Pa. 326; Zigler v. allegation, as a defense to an ac- McClellan, 15 Or. 499, 16 Pac. 179. tion for rent, that the lessee had See ante, § 3 b (2), at notes 50-55. surrendered the premises, was of no 124 Larkiu v. Avery, 23 Conn. 304; avail without a further averment Hough v. Brown, 104 Mich. 109, 62 that the lessor accepted the sur- N. W. 143; McKinney v. Reader, 7 render and released him. Perhaps Watts (Pa.) 123; Aye v. Phila- a different view might have been delphia Co., 193 Pa. 451, 44 Atl. 555, taken If the averment had been of 74 Am. St. Rep. 696; Chancey v. the surrender, not of the premises. Smith, 25 W. Va. 404, 52 Am. Rep. but of the leasehold interest. The 217. common-law precedents seem ordi- 125 Meyer v. Smith, 33 Ark. 637; narily to have contained an averment Lockwood V. Lockwood, 23 Conn. 425; of acceptance or assent by the les- Stobie V. Dills, 62 111. 433; Biggs v. sor (see Peto v. Pemberton, Cro. Car. Stueler, 93 Md. 100, 48 Atl. 727; Rol- 101, 1 Wms. Saund, 236 a, note), but ^334 SURRENDER. § 190 may, by assigning to another, relieve himself from the obliga- tions arising out of privity of estate, but not those arising from privity of contract, and he can relieve himself from neither by merely leaving the premises, without any action on the part of the lajidlord. This principle is sometimes asserted by a state- ment that a surrender is invalid or nugatory unless accepted by the landlord, but this, is to be observed, involves a use of the word "surrender" in its nontechnical sense, before referred to, of a relinquishment of possession, as distinguished from its technical sense of a yielding up of the leasehold estate. Indeed, in England, and presumably in a number of states in this country, as before stated, a surrender, using the term in its technical sense, if ex- press, is valid, though not accepted, until repudiated by the person to whom made. Such a use of the term surrender in its nontech- nical sense, of abandonment, or relinquishment of possession, with the corresponding use of the word "acceptance" as meaning resumption of possession by the landlord, is extremely frequent in connection with that mode of surrender by operation of law which we are now discussing, with the unfortunate result of tending to obscure both the proper meaning of the term and the nature of such surrender. The resumption of possession may be by another person on behalf of the landlord, provided he has authority for this purpose, and the effect is the same as if it were by the landlord directly. ^-^ This is sometimes expressed by saying that a surrender may be made to an agent of the landlord, or may be accepted by such agent, but this again involves the use of the term surrender in the nontechnical sense above referred to. A surrender, using the term in its technical sense, can obviously not be made to any since a surrender was valid at com- 1072, 48 Am. St. Rep. 671; Peche v. mon law without acceptance, until Sloane, 16 App. Div. 458, 45 N. Y. disaffirmed by the surrenderee Supp. 37; De Morat v. Falkenhagen, (Thompson v. Leach, 2 Vent. 207), 148 Pa. 393, 23 Atl. 1125, 33 Am. St. an averment of acceptance would Rep. 834; Lovejoy v. McCarty, 94 seem to have been superfluous until Wis. 341, 68 N. W. 1003; Hart v. the lessor undertook to disaflirm. Pratt, 19 "Wash. 560, 53 Pac. 711; The case last cited appears to be to Amory v. Kannoffsky, 117 Mass. 351, this effect. 19 Am. Rep. 416;, Goldsmith v. 120 Paget V. Electrical Engineering Schroeder, 93 App. Div. 206, 87 N. Y. Co., 85 Minn. 311, 88 N. W. 844; Supp. 558. Blake v. Dick, 15 Mont. 236, 38 Pac. ^ ^QQ BY OPERATION OF LAW. 1335 person other than the landlord, since he alone has the reversion An agent merely authorized to collect rent for the landlord has no authority, it has been decided, to thus resume possession in his behalf.^2^ (3) What constitutes resumption of possession. A question frequently arises as to what constitutes a resumption of posses- sion by the landlord, on the abandonment of the premises by the tenant, sufficient to effect a surrender. It may be necessary for the landlord to assume some measure of control over the property to protect it from injury, or he may desire to utilize it in order to recoup himself for the loss of the stipulated rent, and yet m neither of these cases does he usually desire to preclude himself from asserting a personal liability on the covenant for the pay- ment of rent. The fact that the landlord enters and cares for the premises after the tenant's abandonment is not regarded as showing a re- sumption of exclusive possession, effecting a surrender,i28 nor does the making of repairs in itself have that effect.^^D The question is whether the possession taken by him is of an exclusive character, with the apparent intention of occupying and control- ling the premises as his own, to the exclusion of the tenant, in case the° latter desires to return,i3o and this is ordinarily a question of fact 131 12T Blake v. Dick, 15 Mont. 236, 38 National Union Bldg. Ass'n, 166 111. Pac. 1072, 48 Am. St. Rep. 671; 221, 46 N. E. 752; Livermore v. Ed- Woodward V. Lindley, 43 Ind. 333. dy's Adm'r, 33 Mo. 547; Sesslngliaus 128 Joslin V. McLean, 99 Mich. 480, v. Knocke, 127 Mo. App. 300, 105 S. 58 N. W. 467; Duffy v. Day, 42 Mo. W. 283; Pier v. Carr, 69 Pa. 326; App. 638; Bre'uckmann V. Twibill, 83 Breuckmann v. Twibill, 89 Pa. 58; Pa. 58- Requa v. Domestic Pub. Co., Texas Loan Agency v. Fleming, 92 11 Misc. 322, 32 N. Y. Supp. 125. So Tex. 458. 49 S. W. 1039, 44 L. R. the cleaning of the windows by A. 279. the landlord has been decided not i3o Welcome v. Hess, 90 Cal. 507, to have such an effect. Milling v. 27 Pac. 369, 25 Am. St. Rep. 145; Becker, 96 Pa. 182. Nor does the Duffy v. Day, 42 Mo. App. 638; Meek- landlord's entry to ascertain the need er v. Spalsbury, 66 N. J. Law, 60, 48 of repairs. Chandler v. Hinds, 135 Atl. 1026. Wis. 43, 115 N. W. 339. isi Hays v. Goldman, 71 Ark. 251, 129 Cook V. Anderson, 85 Ala. 99, 4 72 S. W. 563; Carson v. Arvantes, 10 So. 713; Haynes v. Aldrich, 133 Colo. App. 382, 50 Pac. 1080; Okie N. Y. 287, 31 N. E. 94, 16 L. R. A. V. Pearson, 23 App. D. C. 170; Brewer 183, 28 Am. St. Rep. 636; Brewer v. v. National Bldg. Ass'n, 166 111. 221, 1336 SURRENDER. § I9O Y7hen tJie tenant, upon abandoning the premises, sends the key to the landlord, the fact that the latter accepts and retains it, instead of sending it back, does not necessarily show a re- sumption by him of exclusive possession, so as to effect a sur- render.132, 133 j>^^ the case is the same when the key is left at 46 N. E. 752; Armour Packing Co. v. son v. Crossett, 62 Ark. 393, 36 S. W. Des Moines Pork Co., 116 lo-wa, 723, 27. Evidence that, on the burning 89 N. W. 196, 93 Am. St. Rep. 270; of the building on the premises, the Sander v. Holstein Commission Co., lessee moved and failed to rebuild, lis Mo. App. 29, 121 Mo. App. 293, and a few days after the fire the 99 S. W. 12; Wood v. Welz, 40 App. landlord sold the property without Div. 202, 57 N. Y. Supp. 1121; Un- any expression of objection by the derhill v. Collins, 32 N. Y. St. Rep. tenant, who was in the neighbor- 961, 10 N. Y. Supp. 680; White v. hood, was held sufficient to justify Berry, 24 R. I. 74, 52 Atl. 682; Hart a finding of a surrender. Zigler v. v. Pratt, 19 Wash. 560, 53 Pac. 711; McClellan, 15 Or. 499, 16 Pac. 179. Kneeland v. Schmidt, 78 Wis. 345, That the lessor, after the tenant's 47 N. W. 438, 11 L. R. A. 498; Reeve abandonment of the premises, grant- v. Bird, 1 Cromp. M. & R. 31. See ed a right of way to the city for Stott V. Chamberlain (S. D.) 114 N. the use of the public, was held not W. 683, ante, note 5 a. to show an acceptance, a license That the landlord made no an- "for people" to pass for the same swer to the tenant's statement that purpose having been previously he intended to leave on a certain given by the tenant. Pierson v, day, and subsequently, after the ten- Hughes, 87 N. Y. Supp. 223. That ant had left, demanded that the ten- immediately after the abandonment ant remove his sign, and placed of the premises by the tenant the Theatre posters in the windows, was landlord notified the surety, and regarded as evidence to support a offered him the possession, and de- finding of acceptance of the prem- manded the unpaid rent of him. Is ises. Lafferty v. Hawes, 63 Minn, not evidence of a surrender of the 13, 65 N. W. 87. Where the lessees leasehold. Lucy v. Wilkins, 33 wrote the lessor that they could Minn. 441, 23 N. W. 861. And that not work the farm, and that the the landlord collected rent from a latter might rent it to some one else, subtenant of part of the promises and the lessor, without replying, was held not to show a resumption of took charge of the place and con- possession for this purpose. Texas trolled it for a year, and Induced Loan Agency v. Fleming, 92 Tex. 458, a subtenant to take up a rent note 49 S. W. 1039, 44 L. R. A. 279. executed to the lessees and make a 132, 133 Oastler v. Henderson, 2 Q. B. new note to him, and did not notify Div. 575; Thomas v. Nelson, 69 N. Y. the lessees that he was managing 118; Daggett v. Champney, 122 App. the premises for them, or that he Div. 254, 106 N. Y. Supp. 892; With- expected them to make up any defl- ers v. Larrabee, 48 Me. 570; Joslln ciency in the rents, it was held that v. McLean, 99 Mich. 480, 58 N. W. a surrender was shown. William- 467; Ledsinger v. Burke, 113 Ga. 74, » .QQ BY OPERATION OF LAW. 1337 the landlord's residence or place of biisiness,i34 or is given by the tenant to a third person, who is not authorized to receive it, so that the laJidlord must either take charge of it or run the risk of its loss.135 The fact that the landlord, at the time of obtaining or accepting control of the key, or previously thereto, states or explicitly shows that he has no intention of regarding the ten- ancy as terminated, or of releasing the tenant from his obliga- tions under the lease, is sufficient of itself to prevent such re- sult.136. 13T On the other hand, the acceptance of the key may be considered with other facts as tending to show a resumption of pos- session by the la.ndlord, and a consequent termination of the ten- ancy.138 And the fact that after abandonment by the tenant the landlord asked him for the key, and retained it, has been re- garded as conclusively showing a resumption of exclusive pos- session.i^^ That the landlord, after the tenant's abandonment of the premises, makes efforts, by posting notices or otherwise, to make 38 S E 313; Prentiss v. Warne, 10 Smith, 70 N. Y. 537; Townsend v. Mo 601- Buck V. Lewis, 46 Mo. App. Albers, 3 B. D. Smith (N. Y.) 560; 227- Martin v Stearns, 52 Iowa, 345, Spies v. Voss, 30 N. Y. St. Rep. 548, 9 3 N W 92 35 Am. Rep. 278; Ladd v. N. Y. Supp. 532; Dorrance v. Bone- Smith 6 Or 316; Milling v. Becker, steel, 51 App. Div. 129, 64 N. Y. Supp. 96 Pa' 182- Newton v. Speare Laun- 307; Bowen v. Clarke. 22 Or. 566, 30 dering Co ' 19 R. I. 546, 37 Atl. 11. Pac. 430, 29 Am. St. Rep. 625; Nel- 134 Underbill v. Collins, 132 N. Y. son v. Thompson, 23 Minn. 508: 269, 30 N. E. 576; Lucy v. Wilkins, Landt v. Schneider, 31 Mont. 15, 77 33 Minn 441, 23 N. W. 861; Tolle v. Pac. 307. Orth 75 Ind 298 39 Am. Rep. 147; lasphene v. Popplewell, 12 C. B. Durf'ee v. United Stores, 24 R. I. (N. S.) 334; Elliott v. Aiken. 45 N. 254 52 Atl 1087; Chandler v. Hinds, H. 30; Hesseltine v. Seavey. 16 Me. 135' Wis 43 115N. W. 339. 212; Buckingham Apartment House 135 Lucy V. Wilkins, 33 Minn. 441, Co. v. Dafoe, 78 Minn. 268, 80 N. W. 23 N W 861- Douglass v. Seiferd, 18 974; Hegeman v. McArthur, 1 B. D. Misc 188 41 N. Y. Supp. 289; Bark- Sn)ith (N. Y.) 147; Bowen v. Clarke, ley V Mc'cue, 25 Misc. 738, 55 N. Y. 22 Or. 566, 30 Pac. 430, 29 Am. St. Supp 608; Obendorfer v. Meacham, Rep. 625; Brewer v. National Union 110 N. Y Supp. 340; Blake v. Dick. Bldg. Ass'n, 166 111. 221, 46 N. B. 15 Mont 236 38 Pac. 1072, 48 Am. St. 752; Ewing v. Barnard, 84 N. Y. Rep. 671; Lane v. Nelson, 167 Pa. Supp. 137; Feust v. Craig, 109 N. Y. 602,31 Atl. 864. Supp. 742. „ „„ t a 136. 137 Withers V. Larrabee, 48 Me. iso Harris v. Dub, 57 Ga. 77; Led- 570; Scott V. Beecher, 91 Mich. 590. singer v. Burke, 113 Ga. 74, 38 S. B. 52 N. W. 20; Aner v. Penn, 99 Pa. 313. 370, 44 Am. Rep. 114; Morgan v. 1338 SURRENDER. § 190 a lease to another, does not of itself show a resumption of pos- session terminating the tenancy,i^<^ nor does the fact that such efforts are accompanied by assertions on his part that the tenant has given up his lease have that effects ^^^ And a like view has been taken of his action in offering the premises for sale, with the right in the purchaser to immediate possession.i-^2 (4) Reletting by landlord to another. The question whether, upon the tenant's abandonment of the premises, the landlord may lease them to another without thereby causing a surrender of the lease, and consequent termination of the tenant's liability for rent, is one of great practical interest, upon which the authori- ties are not in accord. There are a number of decisions to the effect that the landlord may so "relet" to another and still hold the former tenant.^^^ By others it is regarded as necessary, in order that such reletting shall not effect a surrender, that the landlord, before making the new lease, inform the tenant that he is about to do so on the latter 's account, that is, that the pur- pose is to reduce, but not necessarily to extinguish, the latter 's lia- 140 Walls V. Atcheson, 3 Bing. 462; III. App. 609; Humiston, Keeling & Oastler v. Henderson, 2 Q. B. Div. Co. v. Wheeler, 175 111. 514, 51 575; Gaines v. McAdam, 79 111. App. N. E. 893, 67 Am. St. Rep. 201: Vincent v. Frelich, 50 La. Ann. 232; Marshall v. John Grosse Cloth- 378, 23 So. 373, 69 Am. St. Rep. 436; ing Co., 184 lU. 421, 56 N. E. Scott V. Beecher, 91 Mich. 590, 52 807, 75 Am. St. Rep. 181; Hig- N. W. 20; Joslin v. McLean, 99 Mich, gins v. Street (Okla.) 92 Pac. 153; 48, 58 N. W. 467; Buck v. Lewis, 46 Martin v. Stearns, 52 Iowa, 345, Mo. App. 227; Blake v. Dick, 15 3 N. W. 92, 35 Am. Rep. 278; Stew- Mont 236, 38 Pac. 1072, 48 Am. art v. Sprague, 71 Mich. 50, 38 N. St. Rep. 671; Haynes v. Aid- w. 673; Id., 76 Mich. 184, 42 N. rich, 133 N. Y. 287, 31 N. E. 94, 16 W. 1088; Bowen v. Clarke, 22 Or. L. R. A. 183, 28 Am. St. Rep. 636; 566, 30 Pac. 430, 29 Am. St. Rep. 625; Dorrance v. Bonesteel, 51 App. Div. Merrill v. Willis, 51 Neb. 162, 70 N. 129, 64 N. Y. Supp. 307; Feust v. W. 914; Schelky v. Koch, 119 N. C. Craig, 107 N. Y. Supp. 637; Lane v. 80, 25 S. E. 713; Auer v. Hoffman, Nelson, 167 Pa. 602, 31 Atl. 864. 132 Wis. 620, 112 N. W. 1090. And Compare Eimermann v. Nathan, 116 see Brown v. Cairns, 63 Kan. 584, Wis. 124, 92 N. W. 550. 66 Pac. 639. That the landlord al- 141 Milling V. Becker, 96 Pa. 182; lowed persons to occupy the aban- Gaines v. McAdam, 79 111. App. 201. doned premises temporarily with- 142 Reeves v. McComeskey, 168 Pa. out paying rent was decided not to 571. 32 Atl. 96. put an end to the tenancy. Hardi- ng Aner v. Penn, 99 Pa. 370, 44 Fon Whiskey Co. v. Lewis, 114 Ga. Am. Rep. 114; Bradley v. Walker, 93 602, 40 S. E. 702. § 190 BY OPERATION OF LAW. 1339 bility for rent.^*^ By still another line of decisions it is adjudged that the reletting will terminate the liabilities under the previous lease, without any suggestion being made that a notice to the previous tenant would prevent this result.^-*^ In two quite recent cases it is decided that a written notice by the landlord of his intention to relet, to which the teaiant fails to reply, is not suffi- cient to prevent the operation of such a reletting as a resumption of exclusive possession, since there is in such case no element of assent by the tenant to a reletting.i'^^ In c^se the reletting is regarded as showing a resumption of the possession, the surrender is to be regarded as taking place, not at the time of the tenant's relinquishment of possession, but at the time of the reletting.^^'^ In reference to this question, of the effect of such reletting by the landlord to a third person, as being equivalent to a resump- 144 Brown v. Cairns, 107 Iowa, 727, N. W. 304, 114 Am. St. Rep. 715; 77 N. W. 478; Alsup v. Banks, 68 Matthews' Adm'r v. Tobener, 39 Mo. Miss. 664, 9 So. 895, 13 L. R. A. 598, 115; Dagett v. Champney, 122 App. 24 Am. St. Rep. 294; Brown v. Div. 254, 106 N. Y. Supp. 892; Pel- Cairns, 63 Kan. 584, 66 Pac. 639 ton v. Place, 71 Vt. 430, 46 Atl. 63, 76 (semble); Williamson v. Crossett, 62 Am. St. Rep. 782; Witman v. Wa- Ark. 393, 36 S. W. 27; Hayes v. Gold- try, 31 Wis. 638. man, 71 Ark. 251, 72 S. W. 563; Pal- iie Gray v. Kaufman Dairy & Ice mer v. Myers, 79 111. App. 409. There Cream Co., 162 N. Y. 388, 56 N. E. is a dictum to the effect that a notice 903, 76 Am. St. Rep. 327, 49 L. R. A. would be effectual for this purpose 580; Biggs v. Stueler, 93 Md. 100, 48 in Walls v. Atcheson, 3 Bing. 462. Atl. 727. In the first of the above In Oldewurtel v. Wiesenfeld. 97 Md. cases the court distinguishes the case 165, 54 Atl. 969, 99 Am. St. Rep. 427, of Underbill v. Collins, 132 N. Y. it was held that, notice being given, 269, 30 N. E. 576, on the ground not the reletting did not effect a sur- only that there the communication render. And see White v. Berry, 24 of the landlord's purpose was verbal, R. I. 74, 52 Atl. 682; Goldsmith v. but also, it seems, on the ground that Schroeder, 93 App. Div. 206, 87 N. Y. it was previous to the tenant's aban- Supp. 558; Gutman v. Conway. 45 donment, and that such abandonment Misc. 363, 90 N. Y. Supp. 290; Rucker was in effect an acceptance of the V. Tabor, 127 Ga. 101, 56 S. E. 124. landlord's proposition to relet for ac- 145 Qastler v. Henderson. 2 Q. B. count of the tenant. See, as to the Div. 575; Welcome v. Hess, 90 Cal. Maryland case, the comments there- 507, 27 Pac. 369, 25 Am. St. Rep. 145, on in Oldewurtel v. Wiesenfeld, 97 distinguishing Respini v Porta. 89 Md. 165, 54 Atl. 969, 99 Am. St. Rep. Cal. 464, 26 Pac. 967, 23 Am. St. Rep. 427. 488; Rice v. Dudley, 65 Ala. 68; Hes- i47 Qastler v. Henderson, 2 Q. B. seltine v. Seavey, 16 Me. 212; Hay- Div. 575; Schuisler v. Ames, 16 Ala. cock V. Johnston, 97 Minn. 289, 106 73, 50 Am. Dec. 168; Marseilles v. 1340 SURRENDER. § igO tion of the possession of the premises, it may be said that, while it seems fair that, if a tenant abandons the premises, and is either not accessible to suit, or is of doubtful pecuniary responsibility, the landlord should have the privilege of avoiding a possible loss of the whole rent by leasing to another, without thereby preclud- ing himself from recovering from the original tenant any de- ficiency yet remaining, it is difficult to harmonize such a view with well settled legal principles. The act of the landlord in un- dertaking to lease to another, without the former tenant's con- sent, is necessarily an assumption of absolute control of the prem- ises, excluding any rights of possession in the other. The landlord, by giving the second lease, in effect asserts that he alone is en- titled to control the possession of the premises. Furthermore, looking at the matter from a somewhat different standpoint, it is necessary, if the second lease, given without the tenant's con- sent, is to be regarded as valid to confer present rights of pos- session, that the operation of the former lease shall have come to an end, since two distinct persons cannot each be entitled to the exclusive possession of the same premises. As has been remarked in this connection "if the former tenant brings ejectment against the new tenant, what defense can the new tenant have, — except that plaintiff's right has ceased T'^^s jn -vvhat has been said above it is assumed that the reletting is without the consent of the for- mer tenant. The cases which assert that the reletting does not result in a surrender seem usually to be based on the view that, since this is for the tenant's benefit, as reducing his liability for rent, his assent thereto is to be presumed, and this is no doubt the view of those cases which assert the landlord's right to relet provided he first notify the tenant. But there is nothing in the nature of their relations from which any authority in the landlord thus to act for the tenant can be inferred, nor can such inference properly be drawn from the fact that the tenant has vacated the premises, or that the landlord notified the tenant of his purpose to act for him. Even the tenant's express consent to the makiny of a new lease by the landlord cannot well deprive such action on the latter 's part of the effect of a resumption of possession by him, unless the reletting can be regarded as legally the act of the Kerr, 6 Whart. (Pa.) 500, 37 Am. i48-Weloome v. Hess, 90 Cal. 507, Dec. 430, 27 Pac. 369, 25 Am. St. Rep. 145. i 190 BY OPERATION OF LAW. 1341 tenant, in which case it must take effect as a sublease or assign- ment of the existing leasehold, since that is all which is within the tenant's control. The only alternative seems to be to regard the transaction as the substitution of a new tenant by agreement, accompanied by a transfer of possession, which, as we shall pres- ently see, in itself effects a surrender by operation of law,^^^* but this does not harmonize with the actual facts of the case. As re- gards the question of fairness to the landlord, there seems no more reason that the tenant's abandonment of the premises should give the landlord a right to relet than that his mere default in performance of his covenants, without abandonment, should have that effect, and that the latter is not the case, in the absence of a statute or express provision in the lease authorizing a forfeiture, is unquestionable. In either case, that of a default in rent ac- companied by abandonment, or that of a default in rent alone, it may be desirable for the landlord to be able to get rent for the premises from another tenant, without terminating the liability of the previous tenant. As the lease may expressly provide that the tenant's personal liability for the sums reserved as rent shall continue even after forfeiture for nonpayment,^^^ so the lease may, it appears, validly provide that, upon the premises becoming vacant, the landlord may re-enter and relet, and apply the rent so received upon the rent reserved under the first lease,^'^^ the liability of the former tenant being thus retained in spite of the new lease. Such a pro- vision is to be upheld, apparently, either on the theory that the landlord is thereby made agent for the tenant to make an assign- ment or sublease on behalf of the latter, in case of the latter 's vacation of the premises, or on the theory that the first lease is terminated by the vacation and re-entry. On the latter theory, 148a See post, § 190 d. is to the effect, apparently, that in 149 See ante, § 182 j. spite of such a provision the relet- 150 Jones V. Rushmore, 67 N. J. ting terminates the lease. In that Law, 157, 50 Atl. 587; Hurley v. Seh- case the landlord relet, giving pos- ring, 43 N. Y. St. Rep. 240, 17 N. Y. session to the new lessee a few days Supp. 7; Ogden v. Rowe, 3 E. D. before the time at which the latter Smith (N. Y.) 312; James v. Coe, 32 was to begin to pay rent as an in- Misc. 674. 66 N. Y. Supp. 509; Mc- ducement to take the lease, and it Elroy's Estate v. Brooke, 104 111. was held that the former tenant was App. 220. But Schwartz v. Brucato, discharged from the time of such ;57 App. Div. 202, 68 N. Y. Supp. 289, entry by the new lessee. ;^342 SURRENDER. § 190 the tenant's cojitinning liability for tlie sums thereafter becoming due is not, strictly speaking, a liability for rent, but is purely con- tractual in character.i^*^** (5) Relinquishment of possession on la.ndlord's demand. With- out reference to any subsequent resumption of possession by the landlord, it is sufficient, according to some cases, that the aban- donment or relinquishment of possession by the tenant is in ac- cordance Avith a previous demand or request for possession by the landlord, it thus being immaterial whether the landlord's expres- sion of assent to the relinquishent is previous to or after its oc- currence.^ ^^ It is on this theory, it seems, that vehen the landlord told the tenant that he wished to erect a building on the land, and, the tenant making no objection, the building was erected, the facts were decided to constitute a surrender as to that part of the land occupied by the building.^ ^^ Qn the other hand it has been held that a mere statement by the landlord that if the ten- ant, who had desired to be relieved from the lease, would move out immediately, to which the tenant replied merely that he would "see what he could do," did not justify the tenant in moving out two days later and asserting a surrender.i^^ _^^ a notice to the tenant to move "on or before" the last day of the term cannot be regarded as a continuing offer to accept the premises at any time at which the tenant may choose to leave. ^^"^ The fact that the landlord authorized the tenant to quit posses- sion and that the latter thereupon did quit has, in two or three jurisdictions, been decided not to effect a surrender of the lease- hold.i^^ There seems, however, little distinction in principle in i5oa See ante, § 182 j, at note 951. supposition that the tenancy was to 151 Boyd V. George, 2 Neb. Unoff. be regarded as at an end, was re- 420, 89 N. W. 271; Conkling V. Tuttle, garded as precluded from denying 52 Mich. 630, 18 N. W. 391; Patch- that he had consented to the terml- In's Ex'r v. Dickerman, 31 Vt. 666; nation of the tenancy. Crane v. Edwards. 80 App. Div. 333, iss Kelly v. Noxon, 64 Hun, 281, 18 80 N. Y. Supp. 747 (semble); Eimer- N. Y. Supp. 909. And see Morris v. mann v. Nathan, 116 Wis. 124, 92 Dayton, 84 N. Y. Supp. 392. N. W. 550 (semble). ib4 Koehler v. Scheider, 16 Daly, 152 Smith V. Pendergast, 26 Mmn. 235, 10 N. Y. Supp. 101. 318. 3 N. W. 978. In Browder "v. iss Felker v. Richardson, 67 N. H. Phinney, 37 V/ash. 70, 79 Pac. 598, a 509, 32 Atl. 830; Whittaker v. Bark- somewhat similar case on the facts, er, 1 Cromp. & M. 113; Lamar v. M'>- the tenant, having allowed the land- namee, 10 Gill. & J. (Md.) 116, 32 lord to make improvements on the Am. Dec. 152. But Stanley v. Koehl- § 190 BY OPERATION OF LAW. 1343 this re^-ard between a request to the tenant to quit and a permis- sion to quit, and, presumably, in these jurisdictions, the tenant could not assert a surrender even though he yielded possession on a demand therefor. d. New lea^e to third person. A third mode of surrender by operation of law occurs in the case of a new lease by the landlord to a third person, accompanied by the former tenant's relinquish- ment of possession in favor of such third person. The question whether such a new lease and relinquishment of possession would thus operate was at one time the subject of considerable question in England,i56 i^^t, by later cases there, it seems to be regarded as settled that, when a tenant assents to the making of a lease to another, and yields possession to the new lessee, there is a surrender by operation of law,!^^ the theory thereof being ex- plained as follows: "As far as the landlord is concerned, he has created an estate in the new tenant which he is estopped from disputing with him, and which is inconsistent with the continuance of the tenant's term. As far as the new tenant is concerned, the same is true. As far as the owner of the particular estate in question is concerned, he has been an active party in this transac- tion, not merely by consenting to the creation of the new relation between the landlord and the new tenant, but by giving up pos- session, and so enabling the new tenant to enter, "i^s jn |;his country, likewise, it has been stated that "an unconditional agree- ment between a landlord and a third person, with the assent of the tenant, during the term, to rent the premises to such third person, followed by a change of possession and payment of rent by the tenant, will amount to a valid surrender of the old lease and the acceptance thereof by the landlord, "i59 and there are er, 1 Hilt. (N. Y.) 354, seems to be Smith's Leading Cases (8th Am. Ed. contra. That the lessor by mistake p. 784 et seq.). wrote the lessee that the lease would ist Nickells v. Atherstone 10 Q B expire a year earlier than its actual 944; Davison v. Gent, 1 Hurl. & N. date of expiration was held not to 744. The doctrine of these cases has justify the lessee in then relinquish- been adopted in Canada. Crocker v ing possession. Auer v. Hoffman, Sowden, 33 U. C. Q. B. 397; Acheson 132 Wis. 620, 112 N. W. 1090. v. McMurray, 41 U. C. Q. B.* 484. 156 See Lyon V. Reed, 13 Mees. & W. iss Per Denman, C. J., in Nickells 285, and the full statement of the v. Atherstone, 10 Q. B. 944. English cases in the notes to the 159 Morgan v. McCollister, 110 Ala. Duchess of Kingston's Case in 2 319, 20 So. 54; Hoerdt v. Hahne 91 1344 SURRENDER. § 190 eases applying such a doctrine. ^''o In one state the courts have questioned the validity of such a mode of surrender, without, however, positively deciding the question.^^i The requirement of relinquishment of possession to the new lessee is ignored in a number of cases in which a surrender has been regarded as resulting from the recognition by the landlord, with the tenant's consent, express or implied, of a subtenant in possession as his own immediate tenant, that is, from what is in effect the making of a demise, with the tenant's consent, to the subtenant.^ ®2 These cases can be reconciled with the requirement 111. App. 514. The statement was quoted from Taylor, Landl. & Ten. § 509, where Whitney v. Meyers, 8 N. Y. Super. Ct. (1 Duer) 2G6, is cited as authority. In this latter case it is said that if it was agreed between the lessor, the lessee and a third person that the former would accept the third person as tenant in lieu of the lessee for the residue of the term, and accept rent from him monthly in advance instead of quarterly, as provided in the lease, and if this agreement was carried out by the former lessee yielding possession to such third person, and by the latter taking possession and paying rent accordingly, and the latter accepting rent from him, there was a surren- der by operation of law, citing Bailey V. Delaplaine, 3 N. Y. Super Ct. (1 Sandf.) 5, where the lessor in chief called on the sublessor to pay the rent, producing the sublease on which was endorsed an order by the sublessor to pay the rent to the les- sor in chief, and forbade the subles- see to pay any more rent to the sub- lessor, saying that he had taken the latter's place, and he collected the rent under the sublease accordingly, and this was regarded as a surren- der of the sublease by operation of law. Silva v. Bair, 141 Cal. 599, 75 Pac. 162, seems to involve a surren- der of this character, though the court speaks of a rescission of the lease. 160 Dills V. Stobie, 81 111. 202; Wil- liams v. Vanderbilt, 145 111. 238, 34 N. E. 476, 21 L. R. A. 489, 36 Am. St. Rep. 486; Amory v, Kannoffsky, 117 Mass. 351, 19 Am. Rep. 416; Commercial Hotel Co. v. Brill, 123 Wis. 638, 101 N. W. 1101 (semble). In Number 121 Madison Ave. v. Osgood, 44 N. Y. St. Rep. 489, 18 N. Y. Supp. 126, the tenant of a flat, whose lease terminated in the fall, but who had a right of renewal, was told by the landlord that the latter could lease it to another for the summer months and for several years longer if the tenant would re- linquish the right of renewal, and this the tenant consented to do, de- siring to be rid of the rent for the summer months. Thereupon the landlord did ler.se to another, but only from the fall. It was held that an agreement by the landlord to terminate the tenancy at the com- mencement of the summer, relieving the tenant from rent for the summer months, could be inferred. The the- ory of the decision does not appear. iGi See Hunt v. Gardner, 39 N. J. Law, 533; Decker v. Hartshorn, 60 N. J. Law, 548, 38 Atl. 678. 182 Stimmel v. Waters, 65 Ky. (2 § 190 BY OPERATION OF LAW. 1345 that the new lease to a third person must be accompanied by a transfer of possession, only on the theory that the transfer of pos- session may be prior to such lease, and may be made without any reference thereto. There is at least one decision in which, even though the new lease was to a person not a subtenant, the necessity of a transfer of possession was apparently not recognized,^ ^' though a later case in the same jurisdiction seems to be to the effect that such transfer is necessary.^^^ In a quite recent English case it is explicitly decided that an actual change of possession is nec- essary in order that a new lease to a third person may result in a surrender, and that a mere oral assent by the tenant to a lease made to another, without any relinquishment of possession, is insufficient for this purpose, although the lease is actually made, it being re- marked that the contrary view "would be a most dangerous doc- trine; it would practically amount to a repeal of the Statute of Frauds. "165 That the landlord accepts the payment of rent from the subten- ant does not of itself establish a new demise to the latter.^'^e g^^ j^ has been decided that there was a surrender of the leasehold creat- ed by the original lease when the tenant told the landlord that if the latter accepted rent from the subtenant he must release him, Bush) 282; Snyder v. Parker, 75 Mo. Cook, 2 Barn. & Aid. 119, supra, a App. 529; Bailey v. Delaplaine, 3 N. change of possession, "the old tenant Y. Super. Ct. (1 Sandf.) 5; Dills v. having gone out of possession when Stobie, 81 III. 202 (semble); Amory the head landlord accepted the sub- V. Kanoffsky, 117 Mass. 351, 19 Am. tenant as his tenant." The report Rep. 416; Thomas v. Cook, 2 Barn, of the earlier case says nothing with & Aid. 119. reference to a change of possession. 163 Logan V. Anderson, 2 Doug. lee Decker v. Hartshorn, 60 N. J. (Mich.) 101. In Donkersley v. Levy, Law, 548, 38 Atl. 678; Lovejoy v. Mc- 38 Mich. 54, 31 Am. Rep. 301, it was Carty, 94 Wis. 341, 68 N. W. 1003; decided that where the lessor made Holman v. De Lin-River-Finley Co., a new lease to a third person which 30 Or. 428, 47 Pac. 708T ^acon v. the latter accepted, and the latter Brown, 9 Conn. 334, 23 Am. Dec. 358; then subleased to the prior tenant. Ballou v. Baxter, 28 N. Y. St. Rep. the previous lease was surrendered 431, 8 N. Y. Supp. 15; Bless v. Jen- by operation of law. kins, 129 Mo. 647, 31 S. W. 938; Doe 16* Fish V. Thompson, 129 Mich. d. Hull v. Wood, 14 Mees. & W. 682. 313, 88 N. W. 896. See Cuesta v. Goldsmith, 1 Ga. App. i65Wallis V. Hands [1893] 2 Ch. 48, 57 S. E. 9S3; Americus Mfg. & 75, per Chitty, J. In this case it is Tmn. Co. v. Hightower, 3 Ga. App. said that there was, in Thomas v. 65, 59 S. E. 309. L. and Ten. 85. 1346 SURRENDER. § jqq the tenant, and, the landlord having stated that he would continue to take rent from the subtenant, and that the tenant could give up nis lease, the tenant thereupon delivered his written instrument of lease to the landlord, who receipted therefor, and thereafter was paid his rent by the former subtenant.i^? ^ surrender was also regarded as shown by the fact that, the original lessor having produced the sublease, on which was endorsed an order by the sublessor on the subtenant to pay the rent to the lessor, dema-nded that the subtenant pay the rent to him, and it was so paid as it became due.^^^ In a leading English case on this branch of the law,i69 in which it was decided that, when a subtenant in possession is, with the assent of the tenant, accepted by the chief landlord as his tenant, there is a surrender by operation of law of the tenant's interest, the question whether the original tenant assented to the accept- a.nce of the subtenant as tenant in his place was left to the jury, and a finding of such assent was regarded as justified, on the ground that such assent vras clearly for his benefit, pre- sumably because he was thereby relieved from his liability for rent. In another case it was decided that the prior tenant 's assent to the making of a new demise, to one to whom he had previously transferred the possession of the premises, might be inferred from the possession of the original instrument of lease by the latter, or from the landlord's possession of such instrument in a cancel- ed condition, this being in accordance with the usage of the land- lord in case of the renewal of a lease.i^o There is, in one state, apparently a decision that the making of a lease by the landlord to a third person, even without the consent of the tenant, express or implied, effects a surrender.i^i Such a view appears most questionable.i'^2 167 Amory v. Kannofesky, 117 Mass. 172 The word "surrender" is not 351, 19 Am. Rep. 416. used, it being merely said, without 168 Bailey v. Delaplaine, 3 N. Y. any discussion, that the effect of the Super. Ct. (1 Sandf.) 5. new lease was "to release the plain- 109 Davison v. Gent, 1 Hurl. & N. tiff from all further obligations un- 744. der his lease," but the case is cited 170 Walker v. Richardson, 2 Mees. under the head of "surrender" by & W. 882. Judge McAdam, who delivered the 171 Hav;rthorne v. Coursen, 18 Misc. opinion, in his work on "Landlord & 447, 41 N. Y. Supp. 995. Tenant" (3d Ed. p. 1286). . ^QQ BY OPERATION OF LAW. 1347 In an English case^" it was decided that where the tenants of two distinct tracts of land under different landlords agreed to exchange their holdings, and, some days thereafter, a person who represented both landlords assented to the transaction, there was a surrender of each holding by operation of law. There is one decision that the new lease, in order to effect a sur- render, must be valid so as to convey to the lessee the interest ^vhich it professes to convey,i^^ thus applying to a surrender, re- sulting from a demise to a third person accompanied by a change of possession, the rule which is applied in the case of a surrender by reason of a new lease to the tenant. This view seems, however, questionable, since the reason for applying the rule m the latter case the protection of the tenant from the possibility of losing a valuable leasehold in exchange for one of little value, is not existent in the former case, where the tenant expects nothing under the new demise, and is not ordinarily concerned m the degree of benefit accruing to the new lessee thereunder.^^s Even though the new lease is absolutely void, the new lessee, being in possession by the consent of the landlord, is at least a tenant at will, and this would seem to be sufficient to effect a sur- render of the previous leasehold. That the landlord's consent to a substitution of another lessee 173 Bess V. Williams. 2 Cromp. M. i" In Smith v. Niver, 2 Barb. (N. ^ ^ 5g^ Y.) 180, 47 Am. Dec. 305, it is said In Prettvman v. Hartly, 77 111. 265, by Harris, P. J.. "It has never, I ap- the fact that a tenant exchanged a prebend, been decided that a lessor portion of the land leased to him who has consented to a change of for a like portion leased by the same tenancy, and permitted a change of landlord to another, he to pay, how- occupation, and received rent from ever a different rent for the land so the new tenant as an original and takek from that paid for the land not as a subtenant, can afterwards exchanged, was apparently regarded charge the original tenant for rent as taking each portion from out the accruing during the occupation or operation of the lease in which it the new tenant. If the case of was included, and as subjecting it to Schieffelin v. Carpenter (15 Wend. a verbal lease similar to the original [N. Y.] 400) is to be regarded as an lease to the person to whom it was authority maintaining this position, transferred I t^i^^ ^^ ^^ ^° ^^^^ respect wholly 174 Schieffelin v. Carpenter, 15 unsupported either by principle or Wend (N Y) 400. Here the sec- adjudged cases. The landlord can- ond lease was invalid under the stat- not at the same time have two orig- ute of frauds. This decision is cited inal tenants holding under distinct, approvingly in Whitney v. Meyers, 8 independent leases." N. Y. Super. Ct. (1 Duer) 266. 1348 SURRENDER. §191 was obtained by fraud has been held to vitiate the surrender, and to leave the former liable for rent as before.^'^^ The new lease to a third party may, it has been recognized, be by an agent acting for the landlord.^'^'^ There is a decision, however, that an agent authorized to lease premises and collect rents has no authority to consent to a "substitution of tenants. "^^^ This seems questionable. § 191. Effect of surrender. a. As between the parties. A surrender by the tenant has the effect of terminating all his interest under the lease, since the interest is thereby transferred to the landlord.^ '^^ And, furthermore, it terminates all future liability under the covenants of the lease,^^*^ the most ordinary application of this principle 170 Bruce v. Ruler, 2 Man. & R. 3. 177 See Bess v. Williams, 2 Cromp. M. & R. 581; Amory v. Kannoffskj-, 117 Mass. 351, 19 Am. Rep. 416. 178 Wallace v. Dinniny, 11 Misc. 317, 32 N. Y. Supp. 159. 179 Co. Litt. § 338 b; Bain v. Clark, 10 Johns (N. Y.) 424; Harris v. His- cock, 91 N. Y. 340; Appeal of Grei- der, 5 Pa. 422, 47 Am. Dec. 413; Ter- stegge V. First German Mut. Benev. Soc, 92 Ind. 82, 47 Am. Rep. 135; Deane v. Caldwell, 127 Mass. 242. 180 Piatt, Covenants, 585; Ameri- can Bonding Co. v. Pueblo Inv. Co. (C. C. A.) 150 Fed. 17, 9 L. R. A. (N. S.) 557; Deane v. Caldwell, 127 Mass. 242; Snowhill v. Reed, 49 N. J. Law, 292, 10 Atl. 737, 60 Am. Rep. 615. See Herrman v. Laemmle, 56 Misc. 549, 107 N. Y. Supp. 73. In Hunt V. Gardner, 39 N. J. Law, 530, Beasley, C. J., says: "The au- thorities are not clear with regard to the operation of a surrender in law on the lease and its covenants, but I think it is sufficiently indicated that such operation destroys the privity of contract between the les- sor and lessee, as well as the priv- ity of estate;" and after referring to two cases as supporting that view proceeds. "Although, perhaps, the point is not directly decided in any Enjrlish case, the tenor of the judi- cial language in all the important decisions on the subject of a sur- render by act of the law have a sim- ilar tendency." If the question could have been regarded as doubtful at that time (1877), it may now be re- garded as settled by the numerous cases denying recovery for rent after such a surrender. See authorities cited ante, § 182 g. In no other case has it been suggested that the effect of a surrender by operation of law might be different from that of an express surrender. Since the interest of the tenant is terminated by the surrender, he can- not, when sued on notes given by him in consideration of the lessor's acceptance of a surrender, assert in defense that the lease provided for an abatement of rent if the premises were destroyed by fire and that they were so destroyed before the matur- ity of the notes. Brooks v. Cutter, 119 Mass. 132. But it has been held to be a good defense, at least In part, to a suit by a tenant against the landlord for a sum agreed to be paid by the latter for giving up the prem- c jgj EFFECT. 1349 occurring in the case of a covenant to pay rent, which ceases to be effective after a surrender.^" The surrender does not ordinarily affect liabilities which have already accrued,i82 such as that for past due r&nt.^^^-iss Since a surrender divests all property rights of the tenant in the land, he cannot thereafter assert any claim to growing crops as against the landlord.iss gut crops which have been cut, like other personal chattels which are ov. the premises but not a part thereof, still remain the property of the tenant.^^^ b. As against third persons. Lord Coke, after noticing that as between the parties to a surrender the estate is absolutely "drowned," says: "But having regard to strangers, who were not parties or privies thereunto, lest by a voluntary surrender they may receive prejudice touching any right or interest they had before the surrender, the estate surrendered hath, in con- sideratio.n of law, a continuance, "i^s And this doctrine, that a surrender does not divest the rights of persons not parties thereto, has been generally recognized.i^^^ So it has been held that a Ises to him, that the lessee, in leav- ante, § 109 b (1), at notes 771-773. ing, removed parts of the buildings, iss.iss See ante, § 182 g, at notes since such an agreement imported 895, 896. that the premises were to be left in ise See post, § 251 c (4). substantially the condition in which is? Griswold v. Morse, 59 N. Y. 211 they were at the time of the agree- (semble). ment. Dowing v. DeKlyn, 1 E. D. iss Co. Litt. 338 b. He goes on to Smith (N. Y.) 563. give various instances, among which 181 See ante, § 182 g. he mentions "If tenant for life grant The landlord, having accepted a a rent charge, and after surrender, surrender, cannot recover for the yet the rent remaineth." See, also, cost of improvements made by him Doe d. Beadon v. Pyke, 5 Maule & for which he expected to be compen- S. 146. sated by the rents. Welcome v. issa in Doscher v. Shaw, 52 N. Y. Hess, 90 Cal. 507, 27 Pac. 369, 25 Am. 602, the tenant having made a sub- St. Rep. 145. lease for five years for a purposo 182 Bro. Abr., Surrender, pi. 24; prohibited by the original lease, the Sperry v. Miller, 16 N. Y. 407; Mc- landlord gave the subtenant a writ- Gregor v. Board of Education, 107 ten license to use the premises for N. Y. 511, 14 N. E. 420; Cohen v. this purpose "for and during the said Witteman, 100 App. Div. 338, 91 N. period" in consideration of a yearly y. Supp. 439. But see Geddis v. Fol- sum to be paid to him, and it was liett, 16 S. D. 610, 94 N. W. 431, ap- held that the fact that the sublessee parently to the contrary. As to the afterwards surrendered his sublease effect of a surrender upon liability did not affect his continuing liabil- for waste previously committed, see ity under his contract. The decision 1350 SURRENDER. § 191 tenant, after mortgaging his leasehold interest,i89 or after a lien in favor of another has otherwise arisen on such interest,!^^ cannot, by surrendering his interest, affect the rights of the lienor. And the right of one, to whom the tenant has sold or mortgaged removable fixtures, to remove them, is not affected by a surrender of the leasehold, though this is sufficient to terminate the right of removal as against the tenant.^^^ But where a vendee or mortgagee of crops growing on the premises asserted the in- validity of a surrender as against him, it was apparently held that his rights were subject to the right which the landlord would have had, if there had been no surrender, to distrain his crops for rent,^^2 jn other words, that he could not assert at the same time that the surrender was valid and invalid. It has been decided in England that, if the lessor transfers the reversion, reserving the rent, the lessee may surrender the lease- hold to the holder of the reversion and thereby destroy the right to rent.^'^^ This is based on the theory that otherwise the lessee would be deprived of his right to surrender by an agreement to which he was not a party, and the analogy was suggested of a building contract, the parties to which would not be precluded from rescinding it by the fact that the builder has assigned to another his right to the money to be received thereunder. In this country, on the other hand, it has in one case been decided that the assignee of the rent without the reversion cannot be affected by a surrender made by the lessee, if the latter has at the time notice of the assignment of the rent.^^^ In this last case it is said that the landlord, accepting a surrender, valid as against here, however, was based upon the der. See Dobschuetz v. Holliday, 82 construction of the contract, and not 111. 371, supra. upon the doctrine referred to in the isi London & Westminster Loan text. & Discount Co. v. Drake, 6 C. B. (N. 189 Firth V. Rowe, 53 N. J. Eq. 520, S.) 798; Saint v. Pilley, L. R. 10 32 Atl. 1064; Allen v. Brown, 60 Exch. 137; Adams v. Goddard, 48 Barb. (N. Y.) 39. Me. 212. 190 Dobschuetz v. Holliday, 82 111. 192 Clements v. Matthews, 11 Q. B. 371 (mechanic's lien). So it was Div. 808. held in Farnum v. Hefner, 79 Cal. 193 Southwell v. Scotter, 49 Law J. 575, 21 Pac. 955, 12 Am. St. Rep. 174, Q. B. 356. Compare Wood v. Lon- that the lien of an execution on the donderry, 10 Beav. 465. leasehold could not be affected by the 194 Wittmann v. Watry, 45 Wis. tenant's assent to a forfeiture in 491. There is no discussion, and favor of his landlord. Such assent merely a reference to 1 Parsons, Con- to a forfeiture is in effect a surren- tracts, c. 10, § 7, pi. 6, which the 5 191 EFFECT. 1351 the assignee of the rent, would be liable in damages to the lat- ter.195 The rule that a surrender shall not affect the rights of fhird persons receives its most frequent application in favor of a sub- lessee. Thus, a surrender by a tenant to his landlord does not affect the subtenant's right of possession, but the chief landlord, the surrenderee, becomes, in favor of the subtenant, the latter 's landlord, with no other or greater rights to possession than be- longed to the tenant in chief, the surrenderor.i^^ Accordingly, one holding under a sublease from year to year is entitled to the ordinary notice required to terminate such a tenancy, before dis- possession by the landlord, to whom the sublessor has surrendered, and notice merely of the surrender is not sufficient for this pur- pose.i^"^ In accordance with the same doctrine a sublessee cannot, by a surrender by the lessee, be deprived of the benefit of a cov- enant of the sublease. So it was decided that, where a lessee covenanted with a sublessee of part of the premises leased to him, to perform all the covenants of the original lease, he could not, by taking a new lease after making the sublease, avoid the effect of a covenant of the original lease restricting his right to build on a part of the premises not subleased.^^^ And the sub- lessee 's rights as to fixtures and improvements are not affected by the surrender.1^9 Likewise it has been decided that if a sublessee remains in possession after a surrender by his landlord to the head landlord, his chattels cannot be subjected to a distress made present writer is unable to locate In Am. Rep. 212; Hessel v. Johnson, 129 that work. Pa. 173, 18 Atl. 754, 5 L. R. A. 851, 15 195 In Southwell v. Scotter, 49 Law Am. St. Rep. 716; Cuschner v. West- J. Q. B. 356, the judges refuse to lake, 43 Wash. 690, 86 Pac. 948. The consider this question. subtenant being thus entitled to re- loe Pike v. Eyre, 9 Barn. & C. 909; main in possession, the landlord can Mitchell V. Young, 80 Ark. 441, 97 S. obviously not demand an increased W. 454, 7 L. R. A. (N. S.) 221, 17 rent as the price of allowing him to Am. St. Rep. 89; Eten v. Luyster, 60 remain. Ritzier v. Raether, 10 Daly N. Y. 252; Weiss v. Mendelson, 24 (N. Y.) 286. Misc. 692, 53 N. Y. Supp. 803; Mc- ist Mellor v. Watkins, L. R. 9 Q. B. Kenzie v. City of Lexington, 34 Ky. 400; Pleasant v. Benson, 14 East, (4 Dana) 129; Krider v. Ramsay, 79 234. N. C. 354; Moskowitz v. Diringen, i98 piggott v. Stratton, 1 De Gex, 48 Misc. 543, 96 N. Y. Supp. 173; F. & J. 33. Oshinsky v. Greenberg, 39 Misc. 342, 199 Morrison v. Sohu, 90 Mo. App. 79 N. Y. Supp. 853; Pratt v. H. M. 76. Richards Jewelry Co., 69 Pa. 53, 8 j^352 SURRENDER. ■ § 191 by the latter for the collection of rent from one to whom the head landlord leased after the surrender.^^^^ At common law the doctrine obtained that if a lessee for years, who had sublet for a less term, surrendered his term to the land- lord, his estate being gone, the reversion on the under lease was no longer in existence, and the subtenant was regarded as relieved from liability on the covenants of the sublease. This doctrine, which is elsewhere co.nsidered,2oo was changed in England by statute, so far as concerns a surrender made for the purpose of obtaining a renewal of the lease,^^^ the effect of the statute being to place the person, to whom the new lease is granted by the head landlord, in the position of a transferee of the subreversion.202 And such was apparently held to be the case in one state in this country, without reference to the statute, the doctrine of the merger of the subreversion being regarded as inapplicable as being contrary to the intention of the parties.^o^ There is a decision to the effect that if, after surrender by the tenant, he collects, as the landlord's agent, rent subsequently accruing under the sublease, a periodic tenancy is created as between the subtenant and the head landlord.^o^ A surrender by the tenant is not effective, as against his sub- tena.nt, merely because the landlord, instead of taking a surren- der, might have enforced a forfeiture against the tenant for breach of condition, the effect of which would have been to terminate all rights of the subtenant.^o^ And so the fact that the sublease was in violation of a covenant or co.ndition in the original lease against subletting is, it seems, immaterial in this regard, since the sublease is nevertheless valid.^o^ One who accepts possession from his lessee by way of surrender, not knowing that the latter has previously accepted a lease of the premises from another, does not, it has been decided, become tenant of that other as being the lessee's successor in interest.^o^ 199a Hessel v. Johnson, 129 Pa. 173, 204 Simmons v. Pope, 84 N. Y. 18 Atl. 754, 5 L. R. A. 851, 15 Am. Supp. 973. St. Rep. 716. 205 Great Western R. Co. v. Smith, 200 See ante, § 12 g (11). 2 Ch. Div. 235, afd. 3 App. Cas. 165. 201 4 Geo. 2, c. 28, § 6. ,,, g^^ B^.^^^ ^ ^^^^^^^ 4 p^jj^ 202 Cousins V. Phillips, 3 Hurl. & C. 892. 203 Hessel v. Johnson, 129 Pa. 173, 18 Atl. 754, 5 L. R. A. 851, 15 Am (Pa.) 71; Shermer v. Paciello, 161 Pa. 691, 28 Atl. 995. See ante, § 152 j (2). 9t Rep 716 ^**^ Freeman v. Ogden, 40 N. Y. 105. CHAPTER XIX. FORFEITURE OF THE LEASEHOLD. 192. By disclaimer of tenancy. 193. Under statute. a. For breach of stipulation of lease. b. For illegal use of premises. c. On desertion of premises. d. For improper use of premises. 194. Under express condition subsequent. a. General considerations. b. Condition distinguished from covenant. c. Condition distinguished from limitation. d. Forfeiture dependent on landlord's election. e. Conditions against particular acts. (1) Nonpayment of rent. (2) Nonpayment of taxes. (3) Failure to repair. (4) Assignment and subletting. (5) Bankruptcy. (6) Use and care of the premises. (7) Abandonment of the premises. f. Demand of rent. (1) Necessity at common law. (2) Statutory modification of reaulrement. g. By whom forfeiture may be asserted. h. Against whom forfeiture may be asserted. i. Waiver of right to assert forfeiture. (1) Recognition of tenancy as still existent. (a) General considerations. (b) Acceptance of rent. (c) Assertion of claim for rent. (d) Action against tenant. (e) Notice to tenant. (f) Language recognizing tenancy. (g) Distress. (2) Delay in assertion of forfeiture. (3) Acts inducing breach of condition. (4) Continuing and recurring breaches. ;1354 FORFEITURE OF LEASEHOLD. § 192 j. Assertion and enforcement of forfeiture, k. Effect of enforcement of forfeiture. 1. Relief against forfeiture. (1) General rule (2) Fraud, mistake, accident and surprise. (3) Nonpayment of money. (4) Persons in favor of and against whom relief given. § 192. By disclaimer of tenancy. At common law, the tenant of a particular estate, by an asser- tion of record that the fee was in a stranger, or in himself, for- feited his estate, and the case was the same, it seems, when a ten- ant for years asserted of record a right to a freehold estate, either by way of action or defense.^ Likewise, at common law, a ten- ant forfeited his estate if he made a tortious alienation, that is, if by feoffment, fine or recovery, he undertook to convey an in- terest of greater duration than that to which he was entitled, this involving a repudiation of the tenancy and derogating from the rights of the reversioner.^ A tortious alienation, in the com- mon-law sense, never occurs at the present time, a conveyance by grant or under the Statute of Uses conveying only such an es- tate as the grantor has,^ and it being expressly provided in a number of states that this shall be the effect of a conveyance in every case.* As regards a forfeiture by the tenant's assertion that the free- hold is in himself or in a third person, many courts in this country have gone even beyond the doctrine stated in the older books, they holding, or appearing to hold, that the assertion of an ad- verse title in the tenant or in a third person, that is, a denial of the existence of the relation of tenancy between the tenant and the landlord, will effect a forfeiture of the tenant's estate, with- out reference to how such assertion is made, that is, whether made by record, in writing, or verbally ,5 and that in such case iCo. Litt. 251 b; Bac. Abr., Estate Kent's Comm. 106. See Worthing- for Life (C) ; Leases (T 2). ton v. Lee, 61 Md. 530; GrifRn v. Fel- 2 Litt. § 415; Co. Litt. 251 b; 2 lows, 81 Pa. 114. Blackst. Comm. 274; 1 Hayes, Con- < See 1 Stimson, Am. St. Law, § veyancing, 28. 1402 B; 4 Kent's Comm. 83; cases 3 Co. Litt. 332 a; 2 Sanders, Uses cited 1 Tiffany, Real Prop. § 32, note & Trusts (5th Ed.) 51, 64, 77; Hood- 105. eve, Real Prop. (3d Ed.) 7; 3 Green- b peyton v. Stith, 30 U. S. (5 Pet.) leaf's Cruise, tit. 32, c. 12, § 28; 4 485; Woodward v. Brown, 38 U. S § 192 BY DISCLAIMER OF TENANCY. 1355 the landlord may recover possession without having given any notice to quit.'' This view has been, in terms, based upon the theory that an assertion of an adverse title by the tenant has the effect of rendering his possession adverse to the landlord, thereby starting the running of the statute of limitations against the latter, and that the statute cannot begin to run unless the landlord has an immediate right of action to recover possession^ In two or three jurisdictions, on the other hand, the courts have appar- ently adopted the common-law rule that, in order to work a for- feiture, the disclaimer must be by record, and that a disclaimer, or assertion of title in another, if in pais, will not have that effect.^ (13 Pet.) 1; Walden v. Bodley, 39 U. S. (14 Pet.) 156; WaUace v. Ocean Grove Camp Meeting Ass'n, 78 C. C. A. 406, 148 Fed. 672; Barnewell v. Stephens, 142 Ala. 609, 38 So. 662; Fusselman v. "Worthington, 14 111. 135; Doty V. Burdick, 8.''. 111. 473; Tobin V. Young, 124 Ind. 507, 24 N. B. 121; Goodman v. Malcolm, 5 Kan. App. 285, 48 Pac. 439; Campbell v. Proctor, 6 Me. (6 Greenl.) 12; Springs v. Scbenck, 99 N. C. 551, 6 S. E. 405, 6 Am. St. Rep. 552; Schwoebel v. Fugina, 14 N. D. 375, 104 N. W. 848; Clark v. Bverly, 8 Watts & S. (Pa.) 226; Duke v. Har- per, 14 Tenn. (6 Yerg.) 280, 27 Am. Dec. 462; Hall v. Haywood, 77 Tex. 4, 13 S. W. 612; Wildey Lodge v. Paris, 31 Tex. Civ. App. 632, 73 S. W. 69; Evans v. Enloe, 70 Wis. 345, 34 N. W. 918, 36 N. W. 22. In Clark V. Everly, 8 Watts & S. (Pa.) 226, Gibson, C. J., apparently con- siders that there is a disclaimer in- volving a forfeiture when the tenant claims that the reversion has passed to him. 6 Woodward v. Brown, 38 U. S. (13 Pet.) 1; Sims v. Cooper, 106 Ind. 87, 5 N. E. 726; Bates v. Austin, 9 Ky. (2 A. K. Marsh.) 270, 12 Am. Dec. 395; Meramon's Heirs v. Caldwell's Heirs, 47 Ky. (8 B. Mon.) 32, 46 Am. Dec. 537; Bodwell Granite Co. v. Lane, 83 Me. 168, 21 Atl. 829, 23 Am. St. Rep. 765; Stephens v. Brown, 56 Mo. 23; Jackson v. Wheel- er, 6 Johns. (N. Y.) 272; Calhoun v. Perrin, 2 Brev. (S. C.) 247; Duke v. Harper, 14 Tenn. (6 Yerg.) 280, 27 Am. Dec. 462; Wadsworthville Poor School v. Meetze, 4 Rich. Law (S. C.) 50. TWillison v. Watkins, 28 U. S. (3 Pet.) 43; Tillotson v. Doe, 5 Ala. 407, 39 Am. Dec. 330; Wells v. Sheer- er, 78 Ala. 142; Dahm v. Barlow, 93 Ala. 120, 9 So. 598; Fortier v. Bal- lance, 10 111. (5 Gilm.) 41; Farrow's Heirs v. Erlmundson, 43 Ky. (4 B. Mon.) 605, 41 Am. Dec. 250; Trus- tees of Wadsworthville Poor School V. Jennings, 40 S. C. 168, 18 S. E. 257, 891, 42 Am. St. Rep. 854. In Snyder v. Harding, 34 Wash. 286, 75 Pac. 812, the action of the lessee in asserting a claim to the land in fee was regarded as involving a declara- tion of a rescission, which was ac- cepted if the landlord brought suit for the land. See ante, § 187, note 501. 8De Lancey v. Ganong, 9 N. Y. (5 Seld.) 1; Jackson v. Kisselbrack, 10 Johns. (N. Y.) 336, 6 Am. Dec. 341; Rosseel v. Jarvis, 15 Wis. 571, 82 Am. Dec. 698; Gale v. Oil Run Petroleum 1356 FORFEITURE OF LEASEHOLD. 192 There has been but little discussion of what will constitute a disclaimer by the tenant for this purpose. An attornment to a third person is, it seems, effectual as a disclaimer, in those states in which the disclaimer is not required to be by record.^ It has, however, apparently been decided that a mere denial by the ten- ant that the landlord is entitled to all the rent, on the ground that the reversion is in part in another, is not a sufiicient disclaimer within the rule,i^ and the same view was taken of the action of the tenant in purchasing a one-third interest from a third person, the tenant continuing to acknowledge the tenancy as to a two- thirds interest.^ 1 It would seem that, though a conveyance by a tenant, purporting to be of an estate in fee simple, cannot, at the present day, have a tortious effect as transferring a greater estate than he has, it may be a cause of forfeiture as involving a disclaimer of the tenancy.^ ^ Even in jurisdictions in which a disclaimer must, in order to effect a forfeiture, be of record, the actual transfer of the pos- session by the tenant to an adverse claimant will, it seems, have the same result.^^ Although there has been a disclaimer authorizing the landlord to enforce a forfeiture, this right has been regarded as lost if he subsequently recognizes the tenant as his tenant.^* Co., 6 W. Va. 200 (semble). In feiture in case thereof. In Doe d. Montgomery v. Craig, 33 Ky. (3 Dillon v. Parker, Gow, 180, it is de- Dana) 101, it is said that the ten- cided that the mere payment of rent ant's claim to hold adversely to the to a third person is not a disclaimer, landlord, without any attornment in England, however, as above stat-- to anoth-er or act of disclaimer, is ed, the disclaimer must be by record, not a cause for forfeiture. lo Newman v. Rutter, 8 Watts That in England the disclaimer (Pa.) 51. must be of record to effect a for- n Dahm v. Barlow, 93 Ala. 120, feiture, see Doe d. Graves v. Wells, 9 gg 593^ ^^2 L. R. A. 134. 10 Adol. & E. 427; and that such is 1, jt ig so decided in Trustees of the case in Canada, see Doe d. Dan- wadsworthville Poor School v. Jen- iels V. Weese, 5 U. C. Q. B. 589. nings. 40 S. C. 168, 18 S. E. 257, 891, oFortier v. Ballance, 10 111. (5 42 Am. St. Rep. 854. Gilm.) 41; Blue v. Sayre, 32 Ky. (2 ^3 g^^ j^^^ ^ Ellerbrock v. Flynn, Dana) 213. In McCarrncy v. Auer ^ ^ ^^ ^ ^ ^^^^ commented on 50 MO. 395, an attornment to a third .^ ^ ^ ^^ ^^^^ person seems to be regarded as , • • +v „.^ ^,-f>,,-„ +>,<:> oT^c^T•n & E. 427. See, also, Kyle v. Stocks, bringing the case withm the opera- "- tion of the statute prohibiting an as- 31 U. C. Q. B. 47. signment and providing lor a for- " Dahm v. Barlow, 93 Ala. 120, 9 ^g2 * fiY DISCLAIMER OF TENANCY. 1357 By the English decisions a periodic tenant, if he disclaims or repudiates the relation of landlord and tenant, loses his right to a notice to quit from the landlord, and gives the latter a right to elect to terminate the tenancy immediately, since "a notice to quit is only requisite where a tenancy is admitted on both sides, and if a defendant denies the tenancy, there can be no necessity for a notice to end that which he says has no existence. "^^ To have this effect the disclaimer need not be in writing,!^ ^^t it must involve an assertion of title in the tenant himself or in another.i^ A claim by the tenant that he holds the premises at a "custom- ary rent," with a denial of the landlord's right to raise the rent, has been regarded as a sufficient assertion of title in the tenant to come within the operation of the rule,i8 ^^t a different view has been taken of a claim by the tenant that he is entitled to continue holding under the landlord at a reduced rent,i9 and of a claim by him that he has bought the property, accompanied by a statement of readiness to pay for it.^o So the tenant may always demand that one claiming as landlord shall show that he is such.21 An attornment by the tenant to a third person is a disclaimer entitling the landlord to terminate the tenancy without notice,22 and the same view has been taken of the tenant's refusal to pay rent because a third person named has ordered him not to pay,23 or because his "connection as a tenant" with the landlord has ceased and he "now pays his rent" to the latter 's brother,24 as well as of a claim to hold the land for the life of a third person named.25 On the other hand, a mere refusal to pay rent,26 or a refusal to pay until he learns who is entitled thereto,27 or until a So 598 12 L. R. A. 134; Douglass V. 21 Doe d. Lewis v. Cawdor, 1 Parker' 32 Kon. 593, 5 Pac. 178. Cromp. M. & R. 398. 15-RPst C J in Doe d. Calvert v. 22 Throgmorton v. Whelpdale, Bull. ,' T,- " rcT N. P. 96; Doe d. Davies v. Evans, 9 Frowd, 4 Bmg. 557. p w ^o 16 Doe d Gray v. Stanion, 1 Mees. Mees. & W. 48. 16 Doe fi-^ray v. , ^^ Whitehead v. Pittman, 2 & W. 703; Doe d. Graves v. Wells. 10 ^^^ ^ ^ ^^^ Adol. & B. 427. ^ . 1 24 Doe d. Grubb v. Grubb, 10 Barn. -- -i^-- J -urmiomci V Cooner. 1 & C. 816. 17 Doe d. Williams v. Cooper, Man. & G. 135. 25 Doe d. Hughes v. Bucknell, 8 18 Vivian v. Moat, 16 Ch. Div. 730. ^^^ ^ p ^^g 19 Hunt V. Allgood, 10 C. B. (N. 26 Doe d. Gray v. Stanion, 1 Mees. S.) 253. & W. 703. 20 Doe d. Gray v. Stanion, 1 Mees. 27 Jones v. Mills, 10 C. B. (N. S.) & W. 695. 788. 1358 FORFEITURE OF LEASEHOLD. § 193 pending suit as to the ownership is settled,28 is not a disclaimer within the rule. The question whether, in any particular case, there has been a disclaimer defeating the tenant's right to notice to quit is a question of law for the court, the jury passing, it seems, upon the meaning of the words used.29 The landlord, by recog- nizing the relation as still continuing, precludes himself from thereafter asserting the tenant's act of disclaimer.^o The doctrine that, in the case of a periodic tenancy, the land- lord may, upon a disclaimer by the tenant, re-enter without giv- ing any notice to quit, has been not infrequently asserted in this country ,31 and a like rule has been applied in the case of a ten- ancy at will,^- which, in a number of states, is, as before stated,^^ ordinarily terminable only on notice. It seems, likewise, that, by such disclaimer, the tenant at will would lose all right to have a demand for possession made by the landlord before the bring- ing by the latter of an action of ejectment.^^ § 193. Under statute. a. For breach of stipulation of lease. As elsewhere stated^^ the breach by a tenant of a mere stipulation or covenant, contained 28 Doe d. Williams v. Pasquali, bin, 85 N. C. 108; Emerick v. Taven- Peake's N. P. 259. er, 9 Grat. (Va.) 220, 58 Am. Dec. 217. 29 Doe d. Bennett v. Long, 9 Car. & Compare Reeder v. Bell, 70 Ky. (7 P. 773; Doe d. Williams v. Cooper, 1 Bush) 255. Man. & G. 135. ^" Simpson v. Applegate, 75 Cal. 30 Doe d. David v. Williams, 7 Car. 342, 17 Pac. 237, 7 Am. St. Rep. 177; „ p 099 Von Glahn v. Brennan, 81 Cal. 261, 31 Smith V. Ogg Shaw, 16 Cal. 88; 22 Pac. 596; Jackson v. Wheeler, 6 Eberwine v. Cook, 74 Ind. 377; Johns. (N. Y.) 272; Jackson v. Brown v. Keller, 32 HI. 151, 83 Am. French, 3 Wend. (N. Y.) 337, 20 Am. Dec. 258; Herrell v. Sizeland, 81 HI. Dec. 699; Tuttle v. Reynolds, 1 457; Douglass v. Anderson, 32 Kan. Vt. 80; Steinhauser v. Kuhn, 50 350' 4 Pac. 257; Fogle v. Chaney, Mich. 367, 15 N. W. 513; Amick v. 51 Ky. (12 B. Mon.) 138; Doe d. Brubaker, 101 Mo. 473, 14 S. W. 627. Ross V. Garrison, 31 Ky. (1 Dana) 33 See post, § 19G b. 26; Petty v. Miller, 54 Ky. (15 B. s* Sims v. Cooper, 106 Ind. 87, 5 N. Mon.) 591; Kunzie v. Wixom. 39 E. 726; Jackson v. Wheeler, 6 Johns. Micli. 384, 33 Am. Rep. 403; Wolf v. (N. Y.) 272; Meramon's Heirs v. Holton, 92 Mich. 136, 52 N. W. 459; Caldwell's Heirs, 47 Ky. (8 B. Mon.) Cook V. Penrod, 111 Mo. App. 128, 85 32, 46 Am. Dec. 537. S. W. 676; Head v. Head, 52 N. C. ^s See post, § 194 b. (7 Jones Law) 620; Vincent v. Cor- . j^gg UNDER STATUTE. 1359 in the instrument of lease, ordinarily gives the landlord no right to assert a forfeiture of the tenant's estate. In a number of states, however, statutes have been adopted introducing exceptions to this rule. In some the landlord is authorized to resume posses- sion upon the tenant's failure to pay rent, such a provision being most frequently introduced as a part of a statute authorizing summary proceedings, and the nonpayment of rent being one of the grounds named for such a proceeding.se In a few states the nonpayment of rent is made a ground of forfeiture, without any reference to the mode of proceeding by which the forfeiture may be enforced.^''' In a few states the statute provides that the landlord may re- cover possession in case the tenant violates any stipulation of the lease, without reference to the presence or absence of language in the instrument of lease expressly making that a ground of for- feiture.38 There are also to be found statutory provisions for for- feiture in case of assig.ument or subletting by persons to whom the premises are leased for but a short term.s'^' ^o b. For illegal use of premises. The fact that the tenant uses the premises for an illegal purpose does not, in the absence of a statutory provision to that effect, give the landlord a right to terminate the tenancy .^^ In a very considerable number of states 36 See post, § 274 d, e. days' written notice sufficient to S7 Arizona' Hev. St. § 2693 (If terminate lease, unless tenant, four rent unpaid for five days, landlord days before return day of writ in may re-enter) ; Florida Gen. St. 1906, action by landlord for possession, § 2226 (On failure to pay rent, les- pays or tenders rent due with in- sor may re-enter); Illinois, Kurd's terest and costs). Rev. St. 1905, c. 80, § 8 (On nonpay- ss Illinois, Kurd's Rev. St. 1905, c. ment of rent, landlord may sue in 80, § 9. See Drew v. Mosbarger, 104 ejectment or unlawful detainer after 111. App. 635. Missouri Rev. St. notice that if not paid within five 1899, § 4108. See Murphy v. Century days lease will be terminated) ; Ind- Bldg. Co., 90 Mo. App. 621, where, iana, Burns' Ann. St. 1901, § 7093 though the statute in terms gives (On nonpayment of rent, lease may the landlord a "right to re-enter," It be terminated by ten days' notice), is apparently decided that he is lia- See Leary v. Meier, 78 Ind. 393; ble in damages if he exercises the Kansas Gen. St. 1905, §§ 4057, 4058 right. (On nonpayment of rent, landlord 39, 4o See ante, at note 215. may terminate lease by notice); « Feret v. Kill, 15 C. B. 207; Mil- Massachusetts Rev. Laws 1902, c. ler v. Forman, 37 N. J. Law, 55. As 129, § 11 (On failure to pay rent re- to the validity of a lease made for served on written lease, fourteen an illegal purpose, see ante, § 40. 1360 FORFEITURE OF LEASEHOLD. § 193 the statute provides that the lease shall be void, or that the land- lord may recover possession, in ease of a specified use of an il- legal character.42 The use of the premises for the illegal sale of liquor, their use for gambling, and their use for purposes of pros- titution, are variously specified by these statutes as cause for such a proceeding.^' 42 The fact that the tenant has paid the rent in advance for the en- tire term does not affect the right of the landlord to assert a forfeiture under the local statute. McGarvey V. Puckett, 27 Ohio St. 6G9. A statute authorizing the termina- tion of the lease on account of the illegal use of the premises has been held to give one to whom the prem- ises were conveyed after the act of forfeiture no right to assert a right of re-entry on account thereof. Small V. Clark, 97 Me. 304, 54 Atl. 758. 43 Colorado, Mills' Ann. St. 1891, § 1513 (Unlawful sale of liquor cause of forfeiture) ; Connecticut Gen. St. 1902, § 1085 (If tenant convicted of keeping gambling house or house of prostitution, lease is void, the lessor may recover possession by summary proceeding) ; lowu Code 1S97, §§ 2426, 4940 (Violation of liquor law or keeping house of ill fame authorizes landlord to terminate lease and de- mand possession within three days, and after the three days he may re- cover possession by forcible entry and detainer) ; Kansas Gen. St. 1905, § 3779 (If tenant violates liquor law, right of possession reverts to the lessor, who may enter without process or may avail himself of rem- edy provided for forcible detainer) ; Maine Rev. St. 1903, c. 22, § 4 (Ten- ant using building in violation of liquor law, landlord may enter with- out process or under forcible entry and detainer process) ; Massachus- etts Rev. Laws 1902, c. 101, § 10 (Use of premises for prostitution, gaming or selling liquor annuls lease and causes right of possession to revest in ov/ner, who may re-enter or bring summary proceedings) ; Michigan Comp. Laws 1897, § 5398 (Any sale or gift of liquor shall, at option of lessor, forfeit lease; if les- see keeps house of ill fame or pros- titution or gaming house, lease be- comes void at lessor's option, and he has same remedy to recover posses- sion as against tenant holding over) ; Nebraska Comp. St. 1905, § 7875 (Use of premises by tenant as broth- el shall be held good cause on the part of the lessor to avoid the lease and to re-enter) ; New Jersey, 2 Gen. St. p. 1923, § 34 (If lessee uses prem- ises for prostitution, lease shall be void, and landlord may enter and has same remedies to recover poss=es- sion as against tenant holding over) ; New Yorh Code Civ. Proc. § 2231 (5) (Where the demised prem- ises, or any part thereof, are used or occupied as a bawdy house or house of assignation for lewd persons, or for any illegal trade or manufacture or other illegal business) ; Ohio Rev. St. 1906, § 4361 (Unlawful sale or giving away of intoxicating liquors forfeits lease) ; Oregon, Bell & C. Codes, § 1948 (if lessee, or other per- son with his assent, uses premises for gambling, lessor may terminate lease and recover possession by ac- § 193 UNDER STATUTE, 1361 Statutes providing that certain illegal uses named shall render the lease void, or shall give a right of re-entry to the landlord, have been held to invalidate the lease only at the option of the landlord.'*^ Were it otherwise, as has been remarked, the ten- ant could, at will, by making an illegal use of the premises, re- lieve himself from liability under the leasees It has been decided in one jurisdiction that an illegal use of the premises by a subtenant, without the principal tenant's knowl- edge, would render the interest of the subtenant only subject to forfeiture in favor of his landlord, and would not enable the head landlord to assert a forfeiture against the principal tenant.^e e. On desertion of premises. It was provided by the statute 11 Geo. 2, c. 19, § 16, that if a tenant holding lands at a rent equal to three-fourths of the yearly value, and in arrear for one- half year's rent, should desert the premises and leave them un- cultivated or unoccupied, so as no sufficient distress could be had to countervail the arrears of rent, two justices of the peace might, upon the landlord's request, after posting a notice on the premises, and the lapse of fourteen days, put the landlord in possession, and that thereupon the lease should be void. This statute has been adopted with but little change in at least three states in this country,^''' and in others there are provisions, more or less similar thereto, giving the landlord a right to possession upon the ten- tion before justice of the peace); 44 Trask v. Wheeler, 89 Mass. (7 Rhode Island Gen. Laws 1896, c. 92, Allen) 109; Almy v. Greene 13 R § 4 (If tenant uses premises for I. 350, 43 Am. Rep. 32; Small v. prostitution, gambling or sale of Clark, 97 Me. 304, 54 Atl. 758. liquor, lease Is annulled, and right 45 Chapman, J., in Trask v. Wheel- of possession revests in lessor, with- er, 89 Mass. (7 Allen) 109. out any act on his part, and he may 46 O'Connell v. McGrath, 96 Mass. re-enter). See Pettis v. Jennings, 10 (14 Allen) 289; Healy v. Trant, 81 R. I. 70. Tennessee, Shannon's Mass. (I5 Gray) 312. Aliter, under Code, § 6769 (If lessee keeps house the Massachusetts statute, if the of ill fame, lease is void at lessor's principal tenant makes a sublease option, and he may recover posses- for the purpose of conducting the sion as when tenant holds over) ; unlawful business. Prescott v. Kyle, Utah Comp. Laws 1907, § 3575 (If 103 Mass. 381. tenant maintains unlawful business ■iT Mississippi Code 1906, § 2884 or suffers or maintains nuisance (No particular amount of rent re- about premises, he is guilty of un- quired to be due) ; New Jersey, 2 lawful detainer); Washington, Ball. Gen. St. p. 1918, § 10; South Caro- Ann. Codes & St. § 5527 (5) (same as Una Civ. Code, §§ 2418-2420. Utah). L. and Ten. 86. 1362 FORFEITURE OF LEASEHOLD. § 193 ant's desertion of the premises without leaving sufficiejit thereon to pay the rent.'*^ There are but few decisions reported under either the English statute or its counterparts in this country. In jurisdictions in which the landlord has, under another provision, a right to pro- ceed summarily for possession in case of nonpayment of rent, without reference to the desertion of the premises, the particular provision here under consideration would seem to be useless, and by electing to proceed thereunder the landlord would assume the burden of showing the premises to be deserted. Furthermore, by the weight of the modern decisions,^^ the landlord has, upon such desertion of the premises by the tenant, without reference to the statute, the right to resume possession without resort to legal process. It has been decided in England that the premises were deserted, within the statute, when the tenant of a house had for several months ceased to reside or carry on business there, and his furni- ture had been removed under a distress, and there was no person in charge or sleeping on the premises.^^ But a different view was taken when the tenant's wife and children were occupying the premises, though there was no furniture there except a few chairs, lent by a neighbor.^i d. For improper use of premises. The statute of Gloucester provides that a tenant of a limited estate committing waste upon the property shall thereby forfeit his estate, and there are similar provisions in a number of states. These statutes have been dis- cussed in an earlier part of this work.^^ *» North Carolina Revisal 1905, § § 2786 (No particular amount of 2001 (If tenant who is in arrear for rent required to be due, and landlord rent, or who has agreed to pay a himself to post the notice and then crop rent, or who has given a lien take possession) ; West Virginia on the crop, deserts the premises, the Code 1906, § 3399 (same), landlord may proceed against him as 49 See ante, § 3 b (2), notes 50-55; against over-holding tenant); Penn- § 190 c (1), note 123. sylvania Act March 25, 1825 (Laws so Ex parte Pilton, 1 Barn. & Aid. 1825, c. 68, § 2) (If lessee rem.oves 369. from premises in Philadelphia with- 51 Ashcroft v. Bourne, 3 Barn. & out leaving sufficient property there- Adol. 684. And see Freytag v. on to secure payment of three Anderson, 1 Rawle (Pa.) 73. months' rent, justices may give les- 52 See ante, § 109 b (7). sor possession) ; Yirginia Code 1904, X 194 UNDER EXPRESS CONDITION. 1363 A statutory provision that, if a thing is let for a particular pur- pose, the "letter" may treat the contract as rescinded upon the use of the thing for another purpose, has been held to apply to the ''hiring of real property," and to authorize a landlord to termi- nate the tenancy upon the use of the premises for a purpose not iaitended.^3 § 194. Under express condition subsequent. a. General considerations. A forfeiture of the tenant's estate quite frequently takes place by reason of a breach by him of a condition subsequent contained in the instrument of lease. While certain words are said to be appropriate for the creation of a condition, such as "on condition" and "provided,"^* no par- ticular words are required, it being purely a question of the in- tention of the parties, as gathered from the whole instrument, to create a condition.^^ An oral condition subsequent, it has been decided, cannot, under the "parol evidence rule," be engrafted upon a lease which has been incorporated in a written instrument.^^ At common law the breach of a condition subsequent was ordi- narily availed of by a grantor or lessor by mea.as of a "re-entry" upon the land, and for this reason the clause containing such a provision is frequently referred to as a "proviso for re-entry," or "clause of re-entry," although at the present day an actual re-entry is not, in the majority of cases at least, necessary in order to enforce a forfeiture upon a violation of the condition.^"^ It is not infrequently said that a proviso for re-entry, or, as it may as well be called, a co.ndition subsequent, or a provision for forfeiture, will be construed strictly in favor of the tenant, thus applying the general rule that forfeitures are not favored by the courts.^^ Such a rule is, however, to be applied only when there 53 isom V. Rex Crude Oil Co., 147 Barn. & Adol. 715, 720; Kansas City Cal. 659, 82 Pac. 317. Elevator Co. v. Union Pac. Ry. Co., 3 54Litt. §§ 328-331; Portington's McCrary, 463, 17 Fed. 200; Sauer v. Case, 10 Coke, 35a, 41b. Meyer, 87 Cal. 34, 25 Pac. 153; Camp B5 See cases cited 1 Tiffany, Real v. Scott, 47 Conn. 366; Williams v. Prop. § 68, note 463. Vanderbilt, 145 111. 238, 34 N. E. 476, 56 Morris v. Healy Lumber Co., 46 21 L. R. A. 489, 36 Am. St. Rep. 486; Wash. 686, 91 Pac. 186, 123 Am. St. Meni v. Rathbone, 21 Ind. 454; Miller Rep. 955. V. Havens, 51 Mich. 482, 16 N. W. 865; 57 See post, § 194 j. Wakefield v. Sunday Lake Min. Co., 68 See Doe d. Polk v. Marchetti, 1 85 Mich, 605, 49 N. W. 135; Jackson 1364 FORFEITURE OF LEASEHOLD. § 194 is some obscurity in the language used, and the construction must accord with the apparent intent of the parties, so far as this may- appear.^^ And its application must, it seems, be considerably re- stricted when the condition takes the form of a right of re-entry for breach of a covenant of the lease.^'^ b. Condition distinguished from covenant. A condition, on breach of which the tenant's interest may be terminated, is to be distinguished from a covenant, a breach of which cannot, in the absence of a statutory provision to the contrary,^! affect the ten- ant's interest, but merely gives the landlord a right of action for damages,^2 or, occasionally, a right to an injunction,^^ or a de- V. Topping, 1 Wend. (N. Y.) 388, 19 Am. Dec. 515; Eaton v. Wilcox, 42 Hun (N. Y. 61. See Harris v. Ohio Oil Co., 57 Ohio St. 118, 48 N. E. 502. Applying this principle, a condition of forfeiture "if any of the within payments remain unpaid" was con- strued to refer to a whole payment, and not to apply when a part thereof was paid. Westmoreland & Cambria Natural Gas Co. v. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 603. 59Goodtitle v. Saville, 16 East, 87; Doe d. Davis v. Elsam, Moody & M. 189; Doe d. Muston v. Gladwin, 6 Q. B. 953; Faylor v. Brice, 7 Ind. App. 551, 34 N. E. 833. 60 "We must construe the covenant without regard to the proviso for re- entry, for its construction must be the same in an action for damages for breach of the covenant as in an action for the recvery of land on the ground that the proviso for re-entry has come into operation by reason of such breach." Jessel, M. R., in Bris- tol V. Westcott, 12 Ch. Div. 461. That a covenant is, in case of doubt, to be construed in favor of the covenantee, Bee ante, § 58 a, at note 112. 61 See ante, § 193 a. 62Bac. Abr., Rent (K 4); Buck- ner v. Warren, 41 Ark. 532, 48 Am. Rep. 46; Van Valkenburgh V. Peyton, 7 111. (2 Gilm.)' 44; People V. Gilbert, 64 111. App. 203; Brown's Adm'rs v. Bragg, 22 Ind. 122; Jackson v. McClallen, 8 Cow. (N. Y.) 295; Jackson v. Harrison, 17 Johns. (N. Y.) 66; Eldridge v. Bell, 64 Iowa, 125, 19 N. W. 879; De Lancey v. Ganong, 9 N. Y. (5 Seld.) 9; Simmons v. Jarman, 122 N. C. 195, 29 S. E. 332; Ocean Grove Camp Meeting Ass'n v. Sanders, 68 N. J. Law, 631, 54 Atl. 448; Johnson v. Gurley, 52 Tex. 222; Ewing v. Miles, 12 Tex. Civ. App. 19, 33 S. W. 235; Thompson v. Christie, 138 Pa. 230, 20 Atl. 934, 11 L. R. A. 236. So a breach of an agreement to pay rent does not, at common law, give to the lessor any right to assert a forfeit- ure. Buckner v. Warren, 41 Ark. 532, 48 Am. Rep. 46; Beal v. Bass, 86 Me. 325, 29 Atl. 1088; Bartlett v. Greenleaf, 77 Mass. (11 Gray) 98; Tarlotting v. Bokern, 95 Mo. 541, 8 S. W. 547; Jackson v. McClallen, 8 Cow. (N. Y.) 295. But in Hall v. Smith, 16 Minn. 58 (Gil. 46), though there was no con- dition of re-entry, relief was given, upon the lessee's breach of coven- ants to pay rent and to make im- provements, by an order giving pos- session to the lessor unless the lessee performed the covenants. And in . ^g^ UNDER EXPRESS CONDITION. 1365 cree for specific performance.^^a tj^^ question whether, in a par- ticular case, a provision of the lease constitutes a covena^nt or a condition is not infrequently a question of some difficulty. Mere words of agreement, not contemplating a termination of the lessee's interest upon his default, create a covenant and not a condition.63b But a clause reading "it is stipnlated and con- ditioned" has been construed as creating a condition,^^ as has a clause "provided always and it is further covenanted. "^^ A clause providing for the termination of the lessee's interest at the election of the lessor, upon a default by the lessee, though in the form of a mere stipulation, has been regarded as a condition, since it provides for a forfeiture in case of def ault.^s And one by which the lessee "agrees to forfeit the lease" in a certain contingency has apparently received the same construction.^^ But an agree- ment by the lessee to relinquish possession upon a certain con- tingency or upon a demand has, by the weight of authority, been Kentucky River Nav. Co. v. Com., 76 the lease was destroyed. A reten- Ky (13 Bush) 435, it was held that, tion of the house would be a fraud at the request of the state, equity upon the plaintiff." It might have might "rescind" a lease of public been considered, it would seem, that property upon the lessee's breach of a mere license to use the house, and its covenants; citing a civil-law au- not a lease thereof, was granted, thority (Caffin v. Scott, 7 Rob. [La.] es See ante, §§ 123 1, 152 k. 205) Also in Wray-Austin Machin- esa See post, §§ 233, 268, 271 I. ery Co v Flower, 140 Mich. 452, 103 esb Shaw v. Coffin, 14 C. B. (N. S.) N W 873 it is' said that if it is 372; Philips v. Tucker, 3 Ind. 132; provided that the lease shall not be Gould v. Bugbee, 72 Mass. (6 Gray) as-.igned an assignment works a for- 371; Wilson v. Owens, 1 Ind. T. 163, feiture The Michisran cases cited 38 S. W. 976; McKnight v. Kreutz, do not support the statement. In 51 Pa. 232, 88 Am. Dec. 579; Johnson Crawley v. Mullins, 48 Mo. 517, there v. Gurley, 52 Tex. 222. And see was a lease of a mill for one year cases cited ante, note 62. But see with a covenant by the lessee to White v. Naerup, 57 111. App. 114. run it in a proper manner and to C4 Doe d. Henniker v. Watt, 8 Bam. divide the proceeds, in consideration & C. 308, 1 Man. & R. 694. of which the lessor gave the lessee 65 Co. Litt. 203 b; Simpson v. Tit- the use of a dwelling, and it was terell, Cro. Eliz. 242; Pembroke v. held that the abandonment of the Berkley, Cro. Eliz. 384. mill terminated the lease of the ee Horton v. New York Cent. R. dwelling. It is said that "possession Co., 12 Abb. N. C. (N. Y.) 30; Beach of the property was given to enable v. Nixon, 9 N. Y. (5 Seld.) 35. the defendant to run the mill; there er Winn v. State, 55 Ark. 360, 18 was no other consideration, and by S. W. 375. abandoning the mill the substance of 1366 FORFEITURE OF LEASEHOLD. § 194 regarded differently. ^^ Where a clause provides for tlie doing of things by both parties, as when the lessee agrees to give up part of the premises on a reduction of rent by the lessor, there is cre- ated, it seems, a covenant and not a condition.<59 Although a breach of covena*nt does not in itself give to the land- lord any right to terminate the tenant's interest, the instrument of lease frequently, and indeed ordinarily, contains a clause entitling the landlord to terminate the tenant's interest, or, as it would be usually expressed, to "re-enter," upon the breach by the tenant of some particular covenant or covenants, or of any of the cove- nants contained therein,'^" such a clause, in effect, constituting a condition, to be read in connection with the covenant or covenants to which it refers. Whether such clause of re-entry applies to any particular covenant which may have been broken is a question of construction, and the courts will, in case of doubt, it seems, construe the condition as not so applying,'''^ in accordance with the general policy adverse to forfeiture.'^^ There are English dicta to the effect that a clause of re-entry expressed to take effect upon the lessee's failure to "perform" his covenants extends to breaches of affirmative covenants only, a.nd not to those of a negative character, which only bind him to refrain from certain acts,'^^ but there is a late decision to a contrary ef- 68 Doe d. Willson v. Phillips, 2 to See Winn v. State, 55 Ark. 360, Bing. 13; Wheeler v. Dascomh, 57 48 S. W. 375; Kew v. Trainor, 150 Mass. (3 Cush.) 285; Sloan v. Cant- 111. 150, 37 N. B. 223; Wheeler v] rell, 45 Tenn. (5 Cold.) 571; Denni- Earle, 59 Mass. (5 Cush.) 31, 51 Am. son V. Read, 33 Ky. (3 Dana) 58i5; Dec. 41; Post v. Moran, 10 Daly (N. Bergland v. Frawley, 72 Wis. 559, 40 Y.) 502; Hand v. Suravitz, 148 Pa. N. W. 872. Tha contrary is as- 202, 23 Atl. 1117, 30 Wkly. Notes 115. sumed in Simons v. Marshall, 3 G. It is immaterial that the covenant is Greene (Iowa) 502; Walker v. Dowl- written and the re-entry clause is ing, 24 Ky. Law Rep. 179, 68 S. W. printed. Heiple v. Reinhart, 100 135. And see Hackett v. Marmet Iowa, 525, 69 N. W. 871. Co., 3 C. C. A. 76, 52 Fed. 268, 17 L. 7i See Heiple v. Reed (Iowa) 65 R. A. 804. N. W. 331; Doe d. Spencer v. God- 60 Doe d. Willson v. Phillips, 2 win, 4 Maule & S. 265. Bing. 13, per Burrough, J. In Ellis 72 See ante, at note 58. V. Fitzpatrick, 3 Ind. T. 567, 64 S. 73 There are dicta to that effect In W. 567, it was decided that where a West v. Dobb, L. R. 5 Q. B. 460; lease was from month to month "un- Hyde v. Y\^arden, 3 Exch. Div. 72; til terminated by the option of either Evans v. Davis, 10 Ch. Div. 747. Con- party or by failure to pay rent," non- tra, per Kay and Lopes, J. J., in Bar- payment of rent forfeits the lease, row v. Isaacs [1891] 1 Q. B. 417. In § 1J4 UNDER EXPRESS CONDITION. 1367 fectJ^ A clause giving a right of re-entry if the lessee "do or cause to be doaie" an act in breach of a covenant has been held not to apply to a breach by mere omission, such as a failure to repairJ^ Any question of this sort may be avoided by providing for a right of re-entry on failure to "observe" or "keep" any of the covenants,"^ or on "breach" of any of the covenants,'^^ these words being unquestionably applicable alike to positive and nega- tive covenants. The mere fact that a clause of re-entry, applying in terms to a breach of any of the covenants, undertakes to enumerate them, but omits one, will not, it has been held, prevent it from applying to that one.'^^ A clause of re-entry so applying to the breach of any of the covenants may apply to a covenant for the payment of rent, it appears, though a prior clause expressly gives a right of re-entry after a certain period of default in rent.'^^ A provision for forfeiture in case of a failure in one respect cannot be extended by implication to a failure to perform an independent stipula- tion.80 ^j2(j a provision for re-entry in case the tenant "fail in any of the foregoing promises" does not apply to an implied cove- nant to farm properly.*^ ^ That the words of a covenant against a particular act have been erased in the instrument as executed Doe d. Polk v. Marchetti, 1 Barn. & Atl. 408, 103 Am. St. Rep. 801. Or Adol. 715, a clause of re-entry on de- if lessee "fail, refuse or neglect to fault in rerformance of any coven- carry out terms of lea<5e." Longhi ant for thirty days after notice was v. Samson, 46 U. C. Q. B. 446. held not to extend to a ne^^ative cov- 77 Per Blackburn, J., in Wadham v. enant not to make alterations, as the Postmaster General, L. R. 6 Q. B. provision for notice was plainly in- 644. applicable thereto. 7s ^oe d. Antrobus v. Jepson, 3 74Harman v. Ainslie [1904] 1 K. Barn. & Adol. 402. B. 698. '^9 It is decided in Van Rensselaer 75 Doe d. Abdy v. Stevens, 3 Barn. v. Jewett, 2 N. Y. (2 Comst.) 141. & Adol. 299. But see Wheeler v. so Burnes v. McCubbin, 3 Kan. 221, Earle, 59 Mass. (5 Cush.) 31, 51 Am. 87 Am. Dec. 408. Dec. 41. SI Hough v. Brown, 104 Mich. 109, TGTimms v. Baker, 49 Law T. (N. 62 N. "W. 143; Somers v. Loose, 127 S.) 106; Croft v. Lumley, 6 H. L. Mich. 77, 86 N. W. 386. Cas. 672; Barrow v. Isaacs [1891] 1 A "provision" as to the sale of Q. B. 417; Wheeler V. Earle, 59 Mass. produce is a covenant within a con- (5 Cush.) 31, 51 Am. Dec. 41 ("per- dition of re-entry for breach of cov- form and obaerve") ; West Shore R. enants. Vincent v. Crane, 134 Mich. Co. v. Wenner, 70 N. J. Law, 233, 57 700, 97 N. W. 34. 1368 FORFEITURE OF LEASEHOLD. § 194 does not, it has been decided, affect the validity of a condition of re-entry upon the doing of such act.^^ e. Condition distinguished from limitation. A condition subse- quent, on a breach of which by the tenant his estate may be ter- Tninated by the landlord, is to be distinguished from a "special (or collateral) limitation," by which the tenant's estate is lim- ited to continue only until the happening of some contingent event, in which case the tenant's estate terminates on such event without any action on the part of the landlord.ss.s^ in both cases the dur- ation of the estate is subject to a contingent event, but while in the case of a condition the words providing for its termination upon a contingency are not regarded as a part of the original limitation of the estate, and consequently the mere happening of the event does not terminate the estate, but action on the part of the landlord is necessary for this purpose, in the case of a special limitation, on the other hand, the words of contingency are regard- ed as a part of the original limitation of the estate, and conse- quently the estate necessarily terminates immediately upon the happening of the contingency, without any action by either party. d. Forfeiture dependent on landlord's election. It was at one time the law in England that, in case of a lease for years, a pro- vision that the lease should become *'void" upon a default by the tenant in the performance of any particular stipulation, had the effect of terminating the tenancy immediately, without any action by the landlord,^^ the courts thus in effect regarding such a pro- 82 Pond V. Holbrook, 32 Minn. 291, same state that such a stipulation 20 N. W. 232. did not constitute a conditional limi- 83, 84 See ante, § 12 d. See, for il- tation of the tenancy, terminating it lustrations of the distinction. Beach without any action by the landlord V. Nixon. 9 N. Y. (5 Seld.) 35; Pen- upon nonpayment of rent. Elliott v. oyer V. Brown, 13 Abb. N. C. (N. Y.) Stone, 66 Mass. (12 Cush.) 174; 82, and cases cited post, notes 86-88. Sprague v. Quinn, 108 Mass. 553. In Elliott V. Stone, 67 Mass. (1 In Smith v. Hill, 63 Cal. 51, a pro- Gray) 571, it was decided that a pro- vision that the tenancy should term- vision in a lease for payment of rent inate upon a sale by the lessor wa<3 quarterly in advance, with a condi- treated as a condition. See ante, § tlon that if rent was not so paid the 12 e. lessee should leave the premises, 85 Pennant's Case, 3 Coke, 64 a; was regarded as making such pay- Finch v. Throckmorton, Cro. Eliz. ment a condition precedent tc tho 220; Mulcarny v. Eyres, Cro. Car, vesting of the estate from quarter to 511. quarter; but it was decided in the „ jg^ UNDER EXPRESS CONDITION. 1369 vision not as a condition, but as a special limitation. This view has now however, been repudiated in that country, it being recog- nized that the effect thereof was to enable the tenant, desiring to terminate the lease, to do so by merely making a default, he thus taking advantage of his own wrong. The rule now recognized there and in most parts of this country, is that, even though the instrument of lease provides that the lease shall become void or terminate upon the breach of a stipulation by the lessee, such a breach does not terminate the tenancy until the landlord has m some way signified his election that it shall do so.^e And such election by the landlord is a fortiori necessary in the case of a lease which provides for a right of re-entry or a forfeiture ooi breach of a condition.s'f The same principle has been applied in the case of 86 Rede V. Farr, 6 Maule & S. 121; son, 34 N. C. (12 Ired. Law) 194; Arnsby v Woodward, 6 Barn. & C. Wills v. Manufacturers' Natural Gas tl9- Jones v. Carter, 15 Mees. & W. Co., 130 Pa. 222, 18 Atl. 721, 5 L. 718; Davenport v. Reg.. 3 App. Cas. R. A. 603; Ray v. Western Pennsyl- 115- Dermott v. Wallach, 68 U. S. vania Natural Gas Co., 138 Pa. 576. f 1 wall ) 64 (dictum) ; Wildman v. 20 Atl. 1065. 12 L. R. A. 290. 21 Am. Tavlor '4 Ben 42. Fed. Cas. No. St. Rep. 922; Cochran v. Pew, 159 Pa. 17,654;' Boston El. R. Co. v. Grace & 184, 28 Atl. 219; Caruthers v. Mc- Hvde Co 50 C C A. 239, 112 Fed. Burney, 35 Tenn. (3 Sneed) 590 279- Bowman v. Foot, 29 Conn. 331; (dictum) ; Brady v. Nagle (Tex. Civ. Grommes v St. Paul Trust Co., 147 App.) 29 S. W. 943; Deaton v. Tay- Jll 684 35 N. B. 820. 37 Am. St. Rep. lor, 90 Va. 219. 17 S. E. 944. 248 (dictum) • Brown v. Cairns, 63 Occasionally it is said that breach Kan 584 66'pac. 639; Hartford of a "clause" or of a "covenant" does Wheel Club v Travellers' Ins. Co.. not terminate the lease except at the 78 Conn 355 62 Atl. 207; English v. option of the landlord. Webster v. ?ater205 pa. 106. 54 Atl. 503; Ed- Nichols. ^04 m. 160; Willoughby v. monds V. Mounsey, 15 Ind. App. 399. Lawrence, 116 111. 11, 4 N. E- 356. ^4 N E 196; western Bank v. Kyle, 56 Am. Rep. 758; Holman v. De Lin- 6 Gill (Md.) 343 (dictum); Cart- River Finley Co.. 30 Or. 428, 47 Pac. wriRht V Gardner, 59 Mass. (5 708. These statements are probably Cush ) 273- Shattuck v. Lovejoy, 74 meant as assertions of the rule above Mass (8 Gray) 204; Walker v. Eng- stated. A mere stipulation or cov- ler 30 Mo 130; Clark v. Jones, 1 enant, not accompanied by a con- Denio (N Y.) 516, 43 Am. Dec. 706; dition, cannot terminate a lease, Hortonv'NewYorkCent.R.Co.,12 even at the landlord's election, m Ahh N C (N Y) 30; Williams v. the absence of a statutory provision Beach Pirates Chemical Engine Co.. that it shall have that effect. Ante, 73 N J Law, 446, 63 Atl. 990; Crev- § 194 b. e ling V Wesi End Iron Co.. 51 N. J. s^ Read v. Tuttle. 35 Conn. 25 95 Law! 34. 16 Atl. 184; Phelps v. Ches- Am. Dec. 216; Smith v. Miller, 49 ^. 1370 FORFEITURE OF LEASEHOLD. § 194 a provision that on default by the lessee he should surrender pos- session.ss Tj^e eifeet of these various decisions seems to be that, whatever the language used, whether that adapted to the creation of a special limitation or a condition subsequent, it will, if the contingency referred to is in default by the tenant, be construed as creating, an estate on condition subsequent, and not one on special limitation. In two or three states, however, the former English rule appears to be still adhered to, the provision that the lease shall be void or shall terminate operating according to its literal meaning.^^ J. Law, 521, 13 Atl. 39; Fifty Asso- ciates V. Howland, 52 Mass. (11 Mete.) 99. 88 Proctor V. Keith, 51 Ky. (12 B. Mon.) 252. But in Walker v. Dowl- ing, 24 Ky. Law Rep. 179, 68 S. W. 135, it is decided that in such a case the default ipso facto term- inated the lease, so as to authorize forcible detainer proceedings. When it is expressly provided that the lease shall terminate on a cer- tain contingency at the option of the lessor, there is obviously a condi- tion and not a limitation. Beach v. Nixon, 9 N. Y. (5 Seld.) 35; Low v. Thompson, 58 Misc. 541, 109 N. Y. Supp. 750. 89 In Maryland, in Shanfelter v. Horner, 81 Md. 621, 32 Atl. 184, it is said that if the instrument provides that the term shall come to an end on breach of a condition subsequent, it does so ipso facto. And Cooke v. Brice, 20 Md. 397, is to that effect. In Morrison v. Smith, 90 Md. 76, 44 Atl. 1031, it was decided, on a con- struction of the instrument, that the lease was to be void only at the elec- ion of the lessor, implying that it would be absolutely void on the ten- ant's default, if so intended. Wes- tern Bank v. Kyle, 6 Gill (Md.) 343, contains a dictum in accord with the modern English rule. Compare Crean v. McMahon, 106 Md. 507, 68 Atl. 265. In New York there are decisions clearly in accord with the modern English rule. Clark v. Jones, 1 Denio (N. Y.) 516, 43 Am. Dec. 706; Stuyvesant v. Davis, 9 Paige (N. Y.) 427; Chautauqua Assembly v. Ailing, 46 Hun (N. Y.) 582; Horton v. New York Cent. R. Co., 12 Abb. N. C. (N. Y.) 30; Cohen v. Afro-American Realty Co., 58 Misc. 199, 108 N. Y. Supp. 998. But there are at least dicta by the court of appeals con- tra. Parmelee v. Oswego & S. R. Co., 6 N. Y. (2 Seld.) 74; Alleghany Oil Co. V. Bradford Oil Co., 21 Hun, 26, 86 N. Y. 638. And see Estelle v. Dinsbeer, 9 Misc. 487, 30 N. Y. Supp. 243; In re Schoelkopf, 54 Misc. 31, 105 N. Y. Supp. 477, apparently to this effect. In Kansas, when a lease provided that the landlord might declare the lease at an end and retake posses- sion on default in the rent, to be paid in advance, and the landlord notified the tenant, in case he should fail to pay the rent in advance, to remove from the premises within thirty days, it was held that the tenant, failing so to pay, could re- move from the premises and so r^ lieve himself from further rent. The court says that the notice from § 194 UNDER EXPRESS CONDITION. 1371 e. Conditions against particular acts— (1) Nonpayment of rent. It is not feasible to state all the acts or defaults which may, by express provision in the lease, be made ground for for- feiture of the tenant 's interest. The more important of them only can be specifically referred to. The failure to pay rent is frequently made a ground of for- feiture.^*^ The failure need not be "willful," it has been said, in order to come within the clause of forfeiture.^^ Though, as we shall see, the landlord must, at common law, make a demand before sunset of the day on which the rent is due, in order to be able to assert a forfeiture for non-payment,''^ j^e cannot actually assert the forfeiture until after midnight on that day, there being, until then, no breach of the conditio.n.^^ And if the lease provides for forfeiture in case the rent remains unpaid a certain period of time after it becomes due, he cannot assert the forfeiture till after the end of such period.^^ the landlord presumably meant And see Ft. Worth & D. C. R. Co. v. something. But it is, it may be re- Wooldridge (Tex.) 108 S. V/. 1159, marked, difficult to see "how it could apparently to a like effect, change what was previously a condi- so See e. g., Losch v. Pickett, 36 tion into what was in legal effect Kan. 216, 12 Pac. 822; Morrill v. De a limitation. King v. Davies, 2 Kan. la Granja, 99 Mass. 383; Winston v. App. 634, 42 Pac. 942. Compare Franklin Academy, 28 Miss. (6 Brown v. Cairns, 63 Kan. 584, 66 Cushm.) 118, 61 Am. Dec. 540; Hos- Pac. 639. ford v. Ballard, 39 N. Y. 147; Chris- In Gartland V. Hickman, 56 W. Va. tie's Appeal, 85 Pa. 463; Follin v. 75, 49 S. B. 14, 67 L. R. A. 694, it Coogan, 12 Rich. Law (S. C.) 44. is said to have been decided in Guffy si Randolph v. Mitchell (Tex. Civ. V. Hukill, 34 W. Va. 49, 11 S. E. 754, App.) 51 S. W. 297. 8 L. R. A. 759, 26 Am. St. Rep. 901, 02 See post, § 194 f (1). that a breach of a condition ipso ss Co. Litt. 202 a; New York Acad- facto terminates the lease. It was, emy of Music v. Hackett, 2 Hilt. (N. however, decided in the earlier case Y.) 217. See ante, § 172 h. merely that no re-entry is necessary, 9* Phillips v. Bridge, L. R. 9 C. P. an indication of intention to treat 48; Jones v. Reed, 15 N. H. 68. the tenancy as terminated being suffi- Where the lease provided for a dis- cient. count in case of payment within five Andrews v. Erwin, 25 Ky. Law days after the rent became due, it Rep. 1791, 78 S. W. 902, is also, per- was held that there could be no re- haps, to the effect that the tenancy entry until after such five days, may expire, without any election by White v. McMurray, 2 Brewst. (Pa.) the landlord, by force of such a pro- 484. ■vision upon a default by the tenant. 1372 FORFEITURE OF LEASEHOLD. § 194 The fr.et that a debtor has a valid claim against his creditor, to the full extent of the debt, is not ordinarily regarded as constitut- ing a payment of the debt,^^ and so, it would seem, the existence of a claim in favor of the tenant against the landlord to the amount of the rent due should not prevent a forfeiture for nonpayment, unless the parties have agreed that it shall extinguish the claim for rent. There are decisions to this effect,^^ and also to the contrary .^''^ A tender of the rent when due will, if kept good, no doubt ex- clude a right of forfeiture for nonpayment, and a tender made even after the rent day might, in a number of jurisdictions, have that effect.^"^* It was in one case decided that there could be no forfeiture on account of failure to pay an installment of rent when due, owing to the fact that the landlord resided out of the state and had no agent within it, it being tendered five days later, as soon as the landlord came to the city in which the premises were located.^'^'' And likewise it was held that a forfeiture was not permissible on account of nonpayment of rent in advance, as pro- vided by the lease, when for many years the lessor had called for the rent and had given no notice that he would cease to so do.^''''' 05 See cases cited 22 Am. & Eng. plained why the lessor could not Enc. Law (2d Ed.) 576. treat the check as a partial payment 96 Borden v. Sackett, 113 Mass. only. 214; Fillebrown v. Hoar, 124 Mass. in Beardsley v. Morrison, 18 Utah, 580; Faylor v. Brice, 7 Ind. App. 551, 478, 56 Pac. 303, 72 Am. St. Rep. 795, 34 N. E. 833. See Morrill v. De la it was held that when the lessor had Granja, 99 Mass. 383. agreed to make certain improve- 9T Collins V. Karatopsky, 36 Ark. ments, but refused to make them, 328; Wilcoxen v. Hybarger, 1 Ind. T. whereupon the lessee purchased and 138, 38 S. W. 669; New York El. R. placed on the premises lumber, equal Co. V. Manhattan R. Co., 63 How. Pr. in value to the rent due, in order (N. Y.) 14. to make the improvements himself, In Tipton v. Roberts, 48 Wash. 391, since the lessee had the right in such 93 Pac. 906, it was held that when case to make the improvements and the lessee made repairs necessary charge the cost to the lessor, this to make the premises tenantable extinguished the claim for rent, so and, deducting the amount of bis ^^^^ ^ forfeiture could not be en- expenditures in this regard from the ^ . ^ . , 1. 1 * forced, amount of rent due, gave a check for the balance, and this was retained ''" ^^« P««t' ^^ ^^^^^ ^^^' 3^^- by the lessor for more than two "^^ Burnes v. McCubbin, 3 Kan. months, there could be no forfeiture 221, 87 Am. Dec. 468. as for nonpayment. It is not ex- avc Kentucky Lumber Co. v. New- §194 UNDER EXPRESS CONDITION. 1373 There can obviously be no forfeiture for nonpayment of rent when, by reason of an eviction, or for any other reason, there is no rent due.^^ At common law a right of forfeiture for nonpayment of rent may be exercised even though the rent is paid, if the payment in not made until after the time when it is due.^^ The question of the necessity of a demand for rent previous to the enforcement of a forfeiture by reason of its nonpayment, as well as that of the mode of enforcing a forfeiture, is hereafter considered. ^°° (2) Nonpayment of taxes. A provision for forfeiture in case of nonpayment of taxes has been regarded as authorizing an as- sertion of the forfeiture in case the tenant fails to pay the taxes in the ordinary course of collection, before they become a bur- den on the landlord or upon the land.^o^ But the fact that the tenant refuses in good faith to pay more than a portion of the whole amount claimed, on the ground that he is advised that such portion only is legally due, has been held not to be ground for forfeiture.!"- A forfeiture cannot be enforced, it has been held, for breach of a covenant to pay all taxes, or to refund to the les- sor the amount of taxes paid by him, if the taxes paid by the lessor are refunded before the commencement of a suit to enforce the forfeiture. !°3 According to some decisions a forfeiture for nonpayment of taxes cannot be enforced until there has been a demand by the landlord that they be paid.^"^ But other cases are to the con- trary.i°5 ell, 32 Ky. Law Rep. 396, 10.5 S. W. los Burnes v. McCubbin, 3 Kan. 972. See post, § 194 i (3). 221, 87 Am. Dec. 468. 98 See Blair v. Claxton, 18 N. Y. io4 Kansas City Elevator Co. v. 529; Peck v. Hiler, 24 Barb. (N. Y.) Union Pac. R. Co., 3 McCrary, 463, 178. 17 Fed. 200; Bowman v. Foot, 29 90 See post, at note 214. Conn. 331 (dictum); Meni v. Rath- 100 See post, § 194 f, j. bone, 21 Ind. 454; Eichenlaub v. 101 Allen V. Dent, 72 Tenn. (4 Lea) Neil, 3 Ohio Dec. 365. In Carpenter 676; Taylor v. Jermyn, 25 U. C. Q. v. Wilson, 100 Md. 13, 59 Atl. 186, B. 86. As to covenants to pay taxes, this view is adopted and applied to see ante, § 143. a forfeiture for nonpayment of v/a- 102 New York El. R. Co. v. Man- ter rent. hattan R. Co., 63 How. Pr. (N. Y.) los Davis v. Burrell, 10 C. B. 822; 14. See Eberts v. Fisher, 54 Mich. Taylor v. Jermyn, 25 U. C. Q. B. 86; 294, 20 N. W. 80. Byrane v. Rogers, 8 Minn. 281 (Gil. 1374 FORFEITURE OF LEASEHOLD. § 194 A tenant of a part of a building is entitled, it has been decided, to an apportionment of the water rates on the whole building, or to an ascertainment in some other way of the portion which is due with respect to his particular premises, before a forfeiture can be asserted against him for nonpayment.i<>s (3) Failure to repair. In England, where the imposition upon the lessee of an obligation to repair is much more frequent than in this country, the instrument of lease ordinarily provides for a forfeiture upon a default in this respect. In order to enforce a forfeiture for this cause, it is not necessary that the landlord shall first have notified the tenant to repair.i^^^ It has been held that a provision for forfeiture in case the re- pairs are not executed to the satisfaction of a representative of the lessor does not authorize a forfeiture if the representative ought to be satisfied with the repairs as made.i'^s It is no defense to the claim of forfeiture that the premises have become out of repair owing to their occupation by troops in time of Avar.^^^ As before stated, there is a decision to the effect that a condition of re-entry, if the lessee "do or cause to be done" anything in violation of his covenants, does not apply in case of a mere fail- ure to repair, though this involves the violation of a covenant.^i" (4) Assignment and subletting. The act of the lessee in assign- ing, or in assigning without the lessor's assent, is frequently made a ground of forfeiture." ^ The condition against assignment is, in such case, it seems, to be construed in the same way as when there is merely a covenant against assignment.^^^ -por instance, it does 247) ; Bacon v. Park, 19 Utah, 246, loa Moyer v. Mitchell, 53 Md. 171. 57 Pac. 28; Metropolitan Land Co. v. no See ante, at note 75. Manning, 98 Mo. App. 248, 71 S. W. in See e. g., Brookes v. Drysdale, 696; Garner v. Hannah, 13 N. Y. 3 ^ p j^j^ 53 ; Holland v. Cole, 1 Super. Ct. (6 Duer) 262, disapprov- ^^^^^ & c. 67; Kew v. Trainor, 150 ing dictum in Jackson v. Harrison, ^^^ ^^^^ ^^ ^ ^ 223; Eldredge v. 17 Johns. (N.Y.) 66. ^^ ^^ ^ ^ ^^ 106 Harford v. Taylor, 181 Mass. ' ,. ,„ „ ^ , . 266 63 N. E. 902. Indianapolis Mfg. & Carpenters 107 Few V. Perkins, L. R. 2 Exch. Union v. Cleveland, C, C. & I. R. 92- Baylis v. Le Gros, 4 C. B. (N. S.) Co., 45 Ind. 281; Keeler v. Davis, 12 537; Connell v. Power, 13 U. C. C. P. N. Y. Super. Ct. (5 Duer) 507. g-j^ 112 See Bristol Corp. v. Westcott, 108 Doe d. Baker v. Jones, 2 Car. & 12 Ch. Div. 461. K. 743. § 194 UNDER EXPRESS CONDITION. 1375 not extend to an assignment by operation of law, as upon the death or bankruptcy of the lessee/ ^^ unless expressly so provided. A voluntary assignment for the benefit of creditors has been decided not to be an assignment by operation of law within this excep- tion.114 In states where a mortgage transfers the legal title, a mortgage by the lessee would be within such a forfeiture clause,^^^ but a mere equitable charge is not,ii^ nor would a mortgage be within such a clause in states where it creates a lien merely, without ef- fecting a transfer of the legal title.ii^ a forfeiture is not incurred if the assignment turns out to be invalid.^is j^j^^ there is no forfeiture if the instrument of assignment is not delivered.^i^ The common-law rule that a license to assign, once given, does away altogether with the condition against assignment, so that there is subsequently no restriction upon the right of assignment, has been elsewhere considered.^^o A condition against subletting, or what is its equivalent, a pro- vision for forfeiture upon breach of the covenant against sublet- ting, is not infrequently inserted in the instrument of lease. It has in England been decided that a mere agreement to sublet, if enforcible by specific performance, constitutes cause for for- feiture in such case. 121 (5) Bankruptcy. In England there is quite frequently a pro- vision for forfeiture upon the bankruptcy of the tenant, and such a provision has been decided to be perfectly valid.122 A provision for forfeiture in case the lessee, or his executors, administrators or assigns, shall become bankrupt, has been held not to apply when the lessee becomes bankrupt after having as- signed the term.123 g^ch a provision was regarded as applicable 113 Farnum v. Hefner, 79 C?l. 575, no Farnum v. Hefner, 92 Cal. 542, 21 Pac. 955, 12 Am. St. Rep. 174; Id., 28 Pac. 602. 92 Cal. 542, 28 Pac. 602. 120 See ante, § 152 1. 114 Holland v. Cole, 1 Hurl. & C. 121 Eastern Tel. Co. v. Dent, 78 67. Law T. (N. S.) 713, jt. afd. [1899] 1 115 See Becker v. Werner, 98 Pa. Q. B. 835. 555, and ante, § 152 c, note 87. 122 Roe d. Hunter v. Galliers, 2 116 Bowser v. Colby, 1 Hare, 109. Term R. 1,33 ; Gray, Restraints on 117 See ante, § 152 c, note 88. Alienation of Prop. § 101. 118 Doe d. Lloyd v. Powell, 5 Barn. 123 Smith v. Gronow [1891] 2 Q. & C. 308, 313. B. 394. ;^376 FORFEITURE OF LEASEHOLD. § 194 in case of the bankruptcy of the survivor of certain executors to whom the tenant bequeathed the premises in trust. ^ 24 (6) Use and care of the premises. There is not infrequently a provision for re-entry in case a particular use is made of the premises/25 or in case it is used for a purpose other than that named.126 n ^^s been held that a provision for re-entry in case the lessee occupies the premises, or allows them to be occupied, for an unlawful purpose, applies when such occupation is by a subtenant.^ 27 Occasionally there is a provision for re-entry for failure to cul- tivate the premises in certain specified modes.i^s And so there may be such a provision in case the lessee fails to do certain things upon the premises.^29 (7) Abandonment of the premises. The instrument of lease sometimes stipulates for forfeiture in case of abandonment of the premises by the tenant-^^"^ Abandonment, it is said, is a question of intention, to be determined from the acts and declarations of the tenant.131 It was held that when the lease was executed with the under- standing that the tenant should let fur.nished rooms, a vacancy did not occur within a provision for forfeiture in case of "vacan- cy" merely because the lessee went to reside in another building 124 Doe d. Bridgman v. David, 1 434; Wheeler v. Earle, 59 Mass. (5 Cromp. M. & R. 405. Gush.) 31, 51 Am. Dec. 41. But in 125 Toleman v. Portbury, L. R. 5 Healy v. Trant, 81 Mass. (15 Gray) Q. B. 288; Mulligan v. Hollings- 312, a different effect was given to a worth, 99 Fed. 216; Sell v. Branen, statute avoiding a lease for an un- 70 111- App. 471; Miller v. Prescott, lawful use of the premises. 163 Mass. 12, 39 N. E. 409, 47 Am. iss See Patton v. Bond, 50 Iowa, St. Rep. 434; Sommers v. Reynolds, 508; Prettyman v. Hartly, 77 111. 265. 103 Mich. 307, 61 N. W. 501; Shep- 129 Boston El. R. Go. v. Grace & ard v. Briggs, 26 Vt. 149. Hyde Go., 50 G. C. A. 239, 112 Fed. 126 Marsh v. Bristol, 65 Mich. 378, 279; Winn v. State, 55 Ark. 360, 18 32 N. W. 645. A proviso for re- S. W. 375. entry in case the premises are occu- 130 See Woodward v. Mitchell, 140 pied otherwise than as a saloon and Ind. 406, 39 N. E. 437; Jackson v. dwelling does not authorize a re- Elsworth, 20 Johns. (N. Y.) 180; entry merely because a liquor lie- Hagan v. Gaskill, 42 N. J. Eq. 215, ense is refused the lessee. Teller v. 6 Atl. 879. Boyle, 132 Pa. 56, 18 Atl. 1069. "i Marshall v. Forest Oil Co., 198 127 Miller v. Prescott, 163 Mass. Pa. 83, 47 Atl. 927. 12, 39 N. E. 409, 47 Am. St. Rep. § 194 UNDER EXPRESS CONDITION. I377 for the purpose of taking table boarders, leaving lodgers in the one leased to him.132 f. Demand of rent — (1) Necessity at common law. In order that the landlord may enforce a forfeiture for failure to pay rent, under a clause in the instr anient of lease authorizing him so to do, it is, at common law, necessary that he shall previously have made a demand for the payment of the rent,i33 and this demand must be made in strict compliance with certain technical require- ments. The fact that the tenant has been i.n the habit of seeking the landlord to pay the rent does not relieve the landlord from the necessity of making formal demand as preliminary to a forfeit- ure.134 In one state, however, it has been decided that where there had been repeated demands for the rent, and the claim had not been disputed, a compliance with the common-law formalities was unnecessary.135 And a disclaimer by the tenant and assertion of title in himself has been held to dispense with the necessity of a demand.^36 The demand must be made on the very day on which the rent becomes due,i37 unless the lease provides that the right of re- 132 Burhans v. Monier, 38 App. Pa. 273, 50 Atl. 764, 88 Am. St. Rep. DIv. 466, 56 N. Y. Supp. 632. 809. 133 Bro. Abr., Demaunde, pi. 19; 135 Follin v. Coogan, 12 Rich. Law Co. Litt. 202 a; Kidwelly v. Brand, (S. C.) 44. And In Lund v. Ozanne, Plowd. 70; Hill v. Kempshall, 7 C. 13 N. M. 293, 84 Pac. 710, it was held B. 975; Wildman v. Taylor, 4 Ben. that, conceding that the requirement 42, Fed. Cas. No. 17,654; Bowman as to demand was still existent, it V. Foot, 29 Conn. 331; Cole v. John- could not be asserted if there was a son, 120 Iowa, 667, 94 N. W. 1113; tender of a certain sum at the les- Chapman v. Wright, 20 111. 120; Jen- sor's residence, where the rent had kins V. Jenkins, 63 Ind. 415, 30 Am. invariably been paid, and it was re- Rep. 229; Chandler v. McGinning, 8 fused as being less than the sum Kan. App. 421, 55 Pac. 103; Mac- due. kubin V. Whetcroft, 4 Har. & McH. i36 Jackson v. Collius, 11 Johns. (Md.) 135; Poterie Gas Co. v. (N. Y.) 1; Jackson v. Vincent, 4 Poterie. 179 Pa. 68, 36 Atl. 232; Wend. (N. Y.) 633. Parks V. Hays, 92 Tenn. 161, 22 S. 137 Co. Litt. 202 a; Doe d. Forster W. 3; Godwin v. Harris, 71 Neb. 59, v. Windlass, 7 Term R. 117; Prout 98 N. W. 439; Willard v. Benton, 57 v. Roby, 82 U. S. (15 Wall.) 471; Vt. 286; Johnston v. Hargrove, 81 Chlpman v. Emeric, 3 Cal. 273; Baw- Va. 118; Bowyer v. Seymond, 13 W. man v. Foot, 29 Conn. 331; Chap- Va. 12. man v. Kirby, 49 111. 211; Goodwin v. 134 Rea V. Eagle Transfer Co., 201 Harris, 71 Neb. 59, 98 N, W. 439; L. and Ten. 87. 1378 FORFEITURE OF LEASEHOLD. 194 entry shall accrue only if the rent remains unpaid a certain num- ber of days after it becomes due, in which case the demand must be made on the last of the days a payment on which could save a forfeiture. ^38 Furthermore, the demand must not only be made on that day, but it must also be made at such a convenient time before sunset that the money can be counted,i39 and a de- mand made earlier in the day, or at half past ten,i40 ^^ one,^^^ or at three, 142 o'clock, has been regarded as insufficient. The demand must, it seems, be continued till sunset, by the action of the person making it, either in remaining on the land till that time or in then returning thereto.^^^ The demand must be made at the place named by the lease for the payment of the rent,^^^ and if no place is named, then on McCormick v. Connell, 6 Serg. & R. (Pa.) 151; Boyd v. Talbert, 12 Ohio, 212; Willard v. Benton, 57 Vt. 286. 138 Hill V. Grange, Plowd. 173; Doe d. Wheeldon v. Paul, 3 Car. & P. 613; Acocks v. Phillips, 5 Hurl. & N. 183; Camp v. Scott, 47 Conn. 366; Johnston v. Hargrove, 81 Va. 118; Jackson v. Harrison, 17 Johns. (N. Y.) 66; "Van Rensselaer v. Jew- ett, 2 N. Y. (2 Comst.) 141, 51 Am. Dec. 275; note (16) to Duppa v. Mayo, 1 Wms. Saund. 286 a. In McQuesten v. Morgan, 34 N. H. 400, it is decided that the demand is not sufficient if made on an inter- mediate day, but it is suggested that it is good if made either on the day on which the rent falls due or on the last day on which it may be paid in order to save a forfeiture. The authorities do not generally state that the landlord has an option as to which of the two days he shall choose for the demand. 139 Co. Litt. 202 a; Duppa v. Mayo, 1 Wms. Saund. 287; Tinckler v. Prentice, 4 Taunt. 549; Bowman v. Foot, 29 Conn. 331; Chadwick v. Parker, 44 111. 326; Jenkins v. Jen- kins, 63 Ind. 415, 30 Am. Rep. 229; Chapman v. Harney, 100 Mass. 353; McQuesten v. Morgan, 34 N. H. 400; Johnston v. Hargrove, 81 Va. 118; Jones V. Reed, 15 N. H. 68; Van Rensselaer v. Jewett, 2 N. Y. (2 Comst.) 141, 51 Am. Dec. 275; Smith V. Whitbeck, 13 Ohio St. 471. A showing that a demand was made "in the afternoon" of the proper day is insufficient. Jackson v. Harrison, 17 Johns. (N. Y.) 66; Smith v. Whit- beck, 13 Ohio St. 471. 140 Acocks V. Phillips, 5 Hurl. & N, 183. 1*1 Doe d. Wheeldon v. Paul, 3 Car. & P. 613; Jenkins v. Jenkins, 63 Ind. 415, 30 Am. Rep. 229; Smith v. Whit- beck, 13 Ohio St. 471. 142 Bacon v. Western Furniture Co., 53 Ind. 229. i4" Wood V. Chivers, 4 Leon. 179. See Duppa v. Mayo, 1 Wms. Saund. 276; Fabian v. Winston, Cro. Eliz. 209; Smith v. Whitbeck, 13 Ohio St. 471; Doe d. Wheeldon v. Paul, 3 Car. & P. 613. 144 Co. Litt. 202 a; Buskin v. Ed- wards, Cro. Eliz. 415; Boroughe's Case, 4 Coke, 72a; Gage v. Bates, 40 Cal. 384; Bacon v. Western Furn- iture Co., 53 Ind. 229; Van Rensse- * 194 UNDER EXPRESS CONDITION. 1379 the land, at the most notorious place thereupon,!'*^ this being the front door of the dwelling house, if there is one.^^^ The fact that, at the time of the demand, neither the tenant nor any other per- son is present on the land to receive it, does not affect its valid- ity-ji^'^ and a demand has been decided to be good even though made of a stranger who happened to be upon the land.^^^ The demand must be of the precise sum due,!^^ and must dis- close to what installment of rent it relates. ^^^ If more tha>n one installment is di;ie, it must relate to the last installment only.^^i The demand may be made by either the landlord or by his authorized ageat,^^^ and it has been decided that, if the demand is made by an agent, he need not show his authority, if not re- laer v. Jewett, 2 N. Y. (2 Comst.) there being no person on the prem- 141 51 Am. Dec. 275; Willard v. ises. In that case there was an ex- Benton 57 Vt. 286. press provision for a demand. 145 prout V. Roby, 82 U. S. (15 i*? Doe d. Brook v. Brydges, 2 Wall.) 471; Chadwick v. Parker, 44 Dowl. & R. 29. 111. 326- Eichart v. Bargas, 51 Ky. i^y Fabian v. Winston, Cro. Eliz. (12 B. Mon.) 464; Chapman v. Har- 209; Doe d. Wheeldon v. Paul, 3 Car. ney, 100 Mass. 353; Van Rensselaer & P. 613; Prout v. Roby, 82 U. S. (15 V. Jewett, 2 N. Y. (2 Comst.) 141, 51 Wall.) 471; Wildman v. Taylor, 4 Am. Dec. 275; Sperry v. Sperry, 8 Ben. 42, Fed. Cas. No. 17,654; Gage v. N. H. 477; McQuesten v. Morgan, 34 Bates, 40 Cal. 384; Bacon v. West- N. Y. 400; McCormick v. Connell, 6 em Furniture Co., 53 Ind. 229; Serg. & R. (Pa.) 151, 9 Am. Dec. Nowell v. Wentworth, 58 N. H. 319; 415; Rea v. Eagle Transfer Co., 201 Van Rensselaer v. Jewett, 2 N. Y. Pa. 273, 50 Atl. 764, 88 Am. St. Rep. (2 Comst.) 147, 51 Am. Dec. 275; 809; Willard v. Benton, 57 Vt. 286. McCormick v. Connell, 6 Serg. & R. 14C Co. Litt. 201 b; McGlynn v. (Pa.) 151, 9 Am. Dec. 415; Johnston Moore, 25 Cal. 384, 85 Am. Dec. 133; v. Hargrove, 81 Va. 118. Van Rensselaer v. Jewett, 2 N. Y, iso Fabian v. Winston, Cro. Eliz, (2 Comst.) 141, 51 Am. Dec. 275; 209. But in McLean v. Spratt, 20 Smith V. Whitbeck, 13 Ohio St. 471; Fla. 515, it was decided that a de- Johnston V. Hargrove, 81 Va. 118. mand of the amount of rent due 147 Co. Litt. 202 a; Kidwelly v. without naming the amount or specl- Brand, Plowd. 70; Chapman v. Kir- fying the period for which it was by, 49 111. 211; Prout v. Roby, 82 U. due was sufficient. S. (15 Wall.) 471; Connor v. Brad- isi Scot v. Scot, Cro. Eliz. 73; Doe ley, 42 U. S. (1 How.) 217; Smith v. d. Wheeldon v. Paul, 3 Car. & P. Whitbeck, 13 Ohio St. 471; McCor- 613; Buford v. Weigel, 3 Ohio Dec. mick V. Connell, 6 Serg. & R. (Pa.) 55. 151, 9 Am. Dec. 415. In Mauser v. 152 Roe v. Davis, 7 East, 363; Van Dix, 8 De Gex, M. & G. 703, it was Rensselaer v. Jewett, 2 N. Y. (2 apparently considered that a de- Comst.) 141, 51 Am. Dec. 275. mand off the premises was sufficient. 1380 FORFEITURE OF LEASEHOLD. § I94 quested by the tenant so to do.^^^ jf the demand is made, not by the original lessor, but by a transferee of the reversion, he must notify the teaiant of the transfer, in ease the latter is una- ware thereof. i^'* The necessity of a demand may be dispensed with by an express stipulation to that effect, as that the landlord may re-enter for nonpayment of rent without any demand,^^^ or without any "legal or formal demand, "^^^ or, it has been decided, without any "pre- vious notice. "^^''' And a provision authorizing a re-entry for non- payment of rent within a certain time after it becomes due, "being demanded," has been regarded as dispensing with the common- law formalities as to the demand.^^^ The same effect has been given to a provision that, on nonpayment of rent, the tenancy shall "at once and without notice of any kind" be determined.^^^ In one case a demand was regarded as unnecessary because the rent was payable at the office of a firm who were the agents of the lessor for the collection of the rent.^*^*' The language of the in- 153 Roe d. West v. Davis, 7 East, such a clause the tenancy terminates 363. even without any assertion of his 154 O'Connor v. Kelly, 41 Cal. 432. rights by the landlord. 155 Dormer's Case, 5 Coke, 40 a; leo Singer v. Sheriff, 28 Pa. Super. Goodright v. Cator, 2 Doug. 477; Ct. 305. The reason given is that Doe d. Harris v. Masters, 22 Barn. & "it would have been an idle perform- C. 490; Lewis v. Hughes, 12 Colo, ance for them to sit in their own 208, 12 Pac. 621; Eichart v. Bargas, office and demand the payment of 51 Ky. (12 B. Mon.) 462; Fifty As- the rent from themselves." sociates v. Rowland, 59 Mass. (5 In Union Scale Co. v. Iowa Ma- Cush.) 214; Sweeney v. Garrett, 2 chinery & Supply Co., 136 Iowa, 171, Disn. (Ohio) 601; Van Rensselaer v. 113 N. W. 762, 125 Am. St. Rep. 250, Jewett, 2 N. Y. (2 Comst.) 141, 51 it was decided that no demand was Am. Dec. 275. necessary, "as the rent was in a 156 Doe d. Harris v. Masters, 2 fixed amount, was payable In ad- Barn. & C. 490. vance and at a given place, to wit, 13T Pendill v. Union Min. Co., 64 at the (lessors') place of business;" Mich. 172, 31 N. W. 100; Faylor V. distinguishing Cole v. Johnson, 120 Price, 7 Ind. App. 51, 34 N. E. 833. Iowa, 667, 94 N. W. 1113, where "no IBS See Phillips v. Bridge, L. R. 9 place of payment was designated, C. P. 48, per Keating and Brett, and the amount of rent reserved J j_ was uncertain." The opinion refers 159 Shanfelter v. Horner, 81 Md. to the statute authorizing a sum- 621, 32 Atl. 184. In this case the mary proceeding for nonpayment of writer of the opinion appears to be rent, but it does not appear that under the impression that under such was the form of the proceeding S 194 UNDER EXPRESS CONDITION. 1381 strument will, it has been said, be construed, if possible, in favor of the tenant in this regard.!" , .,^ .^ ^^ The tenant cannot, it has been in one case decided, after a de- fault in the payment of rent, waive the necessity of demand siQce this would involve in effect a forfeiture by consent.^^^ in this ca,se, however, the rights of third persons were involved. It third persons are not concerned, there is no reason why the require- ment of a demand should not be waived, the tenant ha>;ing a right to do what he likes with his leasehold, even to surrendering it to the landlord. (2) Statutory modification of requirement. The necessity ot a formal demand was in some cases obviated by St. 4 Geo. 2, c. 2S, 8 2 which declared that "in all cases between landlord and ten- ant' * * * as often as it shall happen that one-half year s rent shall be in arrear, and the landlord or lessor, to whom the same is due, hath right by law to re-enter for nonpayment there- of such landlord or lessor shall and may, without any formal de- mand or re-entry, serve a declaratio.n in ejectment for the recovery of the demised premises." This statute, furthermore, after author- izing service by posting of the declaration in case there was no per- son on the premises on whom it could be served, provided m effect that in case of judgment against the defendant for nonpayment, if it were made to appear to the court that half a year's rent was due before service of the declaration, and that no sulticient distress was to be found on the premises countervailing the ar- rears of rent, and that the lessor had power to re-enter, then the landlord could recover judgment and execution in the same man- ner as if the rent in arrear had been legally demanded and a re- entry made. This statute has been recognized as in force in at least one state,i33 and there are in several states enactments of a somewhat similar character, the requirement of insufficiency of distress being, however, ordinarily omitted.i«* Occasionally the to recover possession, and the re- rent or more is in arrear, and land- covery of possession was based on lord has subsisting right by law to the express language of the lease. re-enter for nonpayment of said 161 Camp V. Scott, 47 Conn. .375. rent, he may bring an action for 162 Gaskill v. Trainer, 3 Cal. 334. possession, and service of the sum- 163 See Campbell v. Shipley, 41 Md. mons in the action shall stand in the g^ place of a demand and re-entry) ; 164 Arkansas, Kirby's Dig. St. 1904, Illinois^ Kurd's Rev. St. 1905, c. 80, §§4701, 4703 (Whenever a half year's § 4 (Whenever, etc., he may com- 1382 FORFEITURE OF LEASEHOLD. § 194 statute in terms dispenses with the necessity of a formal demand without making any reference to the action by which the for- feiture is to be enforced.^ ^^ And this presumably is the purpose and effect of a statute providing for a re-entry, on nonpayment of rent, after notice of a prescribed number of days.^^^ It has been decided that the operation of a statute, thus dis- pensing with the necessity of a demand, is not affected by the fact that the lease expressly provides for a demand.^^^ There must, under the English statute, be a lack of sufficient dis- mence action of ejectment without any formal demand or re-entry) ; Minnesota Rev. Laws 1905, § 3328 (Substantially same as Arkansas); Missouri Rev. St. 1899, §§ 4116, 4118 (Substantially same as Arkansas); 27e-io Jersey, 2 Gen. St. p. 1916, § 7 (Substantially similar to English statute) ; Neiv York Code Civ. Proc. § 1504 (Substantially same as Ar- kansas. ' May maintain action with- out any demand of rent or re-entry. See City of New York v. Campbell, 18 Barb. (N. Y.) 156; Church v. Hempsted, 27 App. Div. 412, 50 N. Y. Supp. 325; Van Rensselaer v. Ball, 19 N. Y. 100; Ho-^ford v. Bal- lard, 39 N. Y. 147; Martin v. Rec- tor, 118 N. Y. 476, 23 N. E. 893, 16 Am. St. Rep. 771); North Carolina Revisal 1905, § 1983 (Same as Ar- kansas) ; Oregon. Bell & C. Codes, § 338 (Substantially same as Illi- nois); Virginia Code 1904, § 2796 (If right of re-entry by reason of "any rent being in arrear," landlord may serve declaration in ejectment, "which service shall be in lieu of a demand and re-entry." See John- stone V. Hargrove, 81 Va. 118) ; West Virginia Code 1906, c. 93, § 16 (Same as Virginia. See Bowyer v. Sey- mour, 13 W. Va. 12). 165 Nevada Laws 1900, § 3826 (Un- necessary to demand rent on day on which due or at any particular time of day, but it may be made at any time within one year) ; Colorado Mills' Ann. St. 1891, § 1973 (No de- mand necessary to work a forfeiture for nonpayment of rent). 106 See California Civ. Code, §§ 790, 791, 793 (If right of re-entry given by lease, landlord may re-enter after three days' notice, or may bring ac- tion without notice) ; Idaho Civ. Code 1901, § 2375 (Wherever right of re-entry given by lease, entry may be made at any time after right of re- entry upon three days' notice) ; Montana Rev. Civ. Codes 1907, § 4504 (Same as Idaho). The Illinois statute providing for notice of a certain number of days in order to terminate the tenancy for nonpayment of rent is construed as dispensing with a formal demand. (See Chadwick v. Parker, 44 111. 326; Dodge v. Wright, 48 111. 382; Cone V. Woodward, 65 111. 477; Leary V. Pattison, 66 111. 203; Woods v. Soucy, 166 111. 407, 47 N. E. 67), as is that of Indiana giving the land- lord the right of possession in case rent payable in advance is not paid (Ingalls V. Bissot, 25 Ind. App. 130, 57 N. E. 723). 167 Doe d. Scholefield v. Alexander, 2 Maule & S. 525; Doe d. Shrewsbury V. Wilson, 5 Barn. & Aid. 363; Camp- bell V. Shipley, 41 Md. 81. ^g^ UNDER EXPRESS CONDITION. 1383 tress on the premises to countervail all the arrears ^^^'/^^^ ^«* merely insufficient to satisfy half a year's rent, if more than that is due 168 But if the outer doors of the premises are kept locked, so that the gX)ods therein cannot be distrained o.n, or if they are concealed, they are not "to be found" on the premises, so as to preclude the operation of the statute.^^^ If a distress is levied and thereby the amount due is reduced to less than the six months rent required by the statute, the statute no longer applies i^« ff By whom forfeiture may be asserted. It is a well settled rule of the common law that a right of re-entry cannot be reserved in favor of a stranger to the legal interest in the premises.^^i It is not necessary, however, it has been decided, that the person to whom the right of re-entry is reserved have a reversiooi, it being valid though reserved on a transfer of one's entire interest m the land.172 At common law a grantee of the reversion could not enforce a condition reserved upon the lease, this being in accord with the general rule that a right of entry could not be assigned.^^^ But by St 32 Hen. 8, c. 34, it was enacted that grantees and assignees and their heirs, 'executors, and successors should have such like advantages against the lessees, their executors, administrators and assigns by entry for nonpayment of rent, or for doing of waste, or other forfeiture, as the lessors or grantors themselves, or their 168 Cross V. Jordan. 8 Exch. 149. er, 3 Fost. & F. 151; Doe d. Haverson Formerly the New York statute fol- v. Franks, 2 Car. & K. 678. lowed the language of the English ito See Shepherd v. Berger [1891] statute and required that there be 1 Q. B. 597. an inability to collect the rent by "i Litt. § 347; Doe d. Barber v. distress. See Jackson v. Collins, 11 Lawrence, 4 Taunt. 23; Doe d. Bark- Johns (N Y.) 1; Jackson v. Hoge- er v. Goldsmith, 2 Cromp. & J. 674; boom 11 Johns. (N. Y.) 163; Presby- Doe. d. Barney v. Adams, 2 Cromp. terian Congregation v. Williams, 9 & J. 232. But see McKissick v. Wend. (N. Y.) 147; Jackson v. Kipp, Pickle, 16 Pa. 140, to the effect that 3 Wend (N. Y.) 230; Van Rens- a condition may be reserved to one selaer v. Hayes, 5 Denio (N. Y.) 477. other than the grantor in the case That there was such inability could of a conveyance in fee. be proven by affidavit, without actu- 172 Doe d. Freeman v. Bateraan, 2 ally making a distress. Rogers v. Barn. & Aid. 168; Van Rensselaer v. Lynds 14 Wend. (N. Y.) 172. Ball, 19 N. Y. 100. Contra, Ohio 169 Doe d. Chippendale v. Dyson, Iron Co. v. Auburn Iron Co., 64 Mmn. Moodv & M. 77; Doe d. Cox v. Roe, 5 404, 67 N. W. 221. Dowl & L 272; Hammond v. Math- "3 Litt. § 347; Co. Litt. 214 a, 215 a. 1384 FORFEITURE OF LEASEHOLD. § I94 heirs, should have had or enjoyed. Under this statute a trans- feree of the reversioji has a right to enforce a right of re-entry- reserved in the lease/^^ provided the condition is one of a char- acter affecting the land/^^ the same distinction being thus adopt- ed in regard to the enforcement of a condition by a transferee of the reversion as in regard to the enforcement of a covenant.!'^ A transferee of the reat alone has obviously no right to enforce a forfeiture for any purpose, even for nonpayment of rent, the trans- fer of the rent passing neither the reversion nor the right of en- try. i^t In this country the English statute, above referred to, is recog- nized as in force in some jurisdictions; and in others there are local statutes which are no doubt sufficient to give the transferee of the reversion the right to enforce the condition.i'^s, 179 The question whether a particular condition is such as to affect the land, and so to entitle the transferee of the reversion to enforce it, under the statute of 32 Henry 8, c. 34, above referred to, is to be determined, no doubt, by the same considerations as apply in the case of a covenant of the same character. That is, if a covenant by the lessee to do or not to do a particular thing affects the land, so that the benefit thereof would pass to a transferee of the re- version, the benefit of a condition, giving a right to terminate the tenancy upon the doing or not doing of such a thing, would also pass to a transferee of the reversion.^^° The English statute, above referred to, has been decided not to have changed the common-law rule that a condition is not appor- tionable by the act of the parties, and consequently not to author- ize an enforcement of the condition of the lease by one to whom the reversion in part only of the premises has been transferred.^ ^^ 174 See City of Baltimore v. White, its, 179 See ante, § 149 b (1). 2 Gill (Md.) 444; Page v. Esty, 54 isf> See Verplanclv v. Wright, 23 Me. 319; Metropolitan Land Co. v. Wend. (N. Y.) 506, where it was Manning, 98 Mo. App. 248, 71 S. W. held that a condition not to cut wood 696. ran with the land, and Stevens v. 175 Co. Litt. 215 a; Stevens v. Copp, Copp, L. R. 4 Exch. 20. where a con- L. R. 4 Exch. 20; Stockbridge Iron dition not to violate the game laws Co. V. Cone Iron Works, 102 Mass. was held not to run. 80. 1^1 Co. Litt. 215 a, and note; Dum- iT6See ante, § 149 b (2). por's Case, 4 Coke, 119 b; Wright v. 17T See Huerstel v. Lorillard, 29 N. Burroughes, 3 C. B. 685; Twynam v. Y. Super. Ct (6 Rob.) 260. Pickard, 2 Bam. & Aid. 105; Van § 194 UNDER EXPRESS CONDITION. 1385 But one to whom a partial interest in the reversion in the whole premises is transferred, as by a concurrent lease, may enforce the eondition.182 And the rule forbidding the apportionment of con- ditions has never been applied to an apportionment by act of the law, as when the reversion in different parts of the premises passes to different persons by descent.^ ^-^ A lessor, cannot, it has been decided, after having transferred the reversion in the land, enforce a forfeiture for breach of a condition.isi On the other hand, his transferee cannot do so unless the breach occurred in his own time, that is, after the transfer to him.'^s There can be no forfeiture, it has been de- cided, as for nonpayment of rent, at the instance of a transferee of the reversion, if the tenant refused to pay rent because ignorant of the transfer, and he was not informed thereof.^ ^*5 h. Against whom forfeiture may be asserted. A condition can be enforced against an assignee of the leasehold interest,^^''' or against a subtenant,' ^^ to the same extent as against the orig- Rensselaer v. Jewett, 5 Denio (N. Y.) 121; Cruger v. McLaury, 41 N. Y. 219. 182 Wright V. Burroughes, 3 C. B. 685. 183 Co. Litt. 215 a; Dumpor's Case, 4 Coke, 119 b; Lee v. Arnold, 4 Leon. 27; Winter's Case, 3 Dyer, 308 b; Cruger v. McLaury, 41 N. Y. 219. 1x4: Doe d. Marriott v. Edwards, 5 Barn. & Adol. 1065, 3 Nev. & M. 193; City of Baltimore v. White, 2 Gill (Md.) 444. i85Fenn v. Smart, 12 East, 444; Hunt V. Bishop, 8 Exch. 675; Crane V. Batten, 23 Lav/ T. 220; Godwin v. Harris, 71 Neb. 59, 98 N. W. 439; Moulton V. Lawson, 79 Neb. 720, 113 N. W. 244. See Small v. Clark, 97 Me. 304, 54 Atl. 758. This seems to be ignored in two Illinois cases holding that the lessor's waiver of a forfeiture on account of matters prior to the transfer precludes his transferee from asserting a forfeit- ure on those grounds, they thus as- suming that, apart from the waiv- er, the transferee might ,have en- forced a forfeiture on these grounds. See Watson v. Fletcher, 49 111. 498; McConnell v. Pierce, 210 111. 627, 71 N. E. 622. 186 O'Connor v. Kelly, 41 Cal. 432. 187 Main v. Green, 32 Barb. (N. Y.) 448; Reynolds v. Fuller, 64 111. App. 134; Abrahams v. Tappe, 60 Md. 317; Carnegie Natural Gas Co. v. Phila- delphia Co., 158 Pa. 317, 27 AU. 951. But persons taking the leasehold in- terest by purchase from the lessee for a valuable consideration are not affected by a verbal agreement for forfeiture of which they have no notice. Thompson v. Christie, 138 Pa. 230, 20 Atl. 934, 11 L. R. A. 23G. 188 Arnsby v. Woodward, 6 Barn. & C. 519; Hand v. Blow [1901] 2 Ch. 721; Baldwin v. Wanzer, 22 Ont. 612; Brock v. Desmond & Co. (Ala.) 45 So. 665; Frazier v. Caruthers, 44 111. App. 61; Wheeler v. Earle, 59 Mass. (5 Cush.) 31, 51 Am. Dec. 41; Miller v. Prescott, 163 Mass. 12, 39 N.E. 409, 47 Am. St. Rep. 434; Stees 1386 FORFEITURE OF LEASEHOLD. § 194 inal lessee. The lessee cannot affect the landlord's right of re- entry by making an assignment or a sublease. The condition is also effective as against one having a lien subsequent to the lease. ^^^ In the case of a sublease, the act of the subtenant, if in violation of a condition of the head lease, has the same effect as the act of the original tenant, in enabling the head landlord to enforce a forfeiture, not only against such subtenant, but also against his sublessor, the tenant,^ ^<^ or against a subtenant of another part of the premises.^^^ For tliis reason it is a proper precaution, for one holding under a lease which contains a clause of re-entry for the doing of, or for the failure to do, certain classes of acts on the premises, to insert, in a sublease made by him, a covenant by the sublessee to perform the covenants and conditions of the orig- inal lease, the effect of which will be to make the sublessee liable to indemnify him for a loss of the term in case of a failure in this respect.^^2 A clause providing that the lessor may assert a forfeiture in case the lessee, "his successors or assigns," should fail to perform the covenants, has been held to include, under the expression "successors," the executors of the lessee. ^^^ i. Waiver of right to assert forfeiture — (1) Recognition of tenancy as still existent — (a) General considerations. As be- fore stated, the question whether the breach of a condition sub- sequent shall have the effect of terminating the tenant's estate is ordinarily a matter wholly in the option of the landlord, that is, the landlord may or may not enforce a forfeiture for such a breach. Sometimes, however, by his language or conduct after V. Kranz, .*?2 Minn. 313, 20 N. W. 241; loi Clarke v. Cummings, 5 Barb. Shannon v. Grindstaff, 11 Wash. S36, (N. Y.) 339; Gteer v. Boston Little 40 Pac. 123; Ciischner v. Westlake, Circle Zinc Co., 126 Mo. App. 173, 43 Wash. 600, 86 Pac. 94S; Eton v. 103 S. W. 151; Darlington v. Hamil- Lvyster, 60 N. Y. 252. See Peck v. ^^^ j^^y, 550; Creswell v. Davidson, Insersoll, 7 N. Y. (3 Seld.) 528. In ^g ^a^ ^ ^^ ^^ g^^ i»2 Hornby v. Cardwell, 8 Q. B. Sutton's Case, 12 Mod. 557, there is a dictum by Holt, C. J., that a for feiture of the estate of a life tenant ^^^v. 329; Wheeler v. Earle, 59 Mass. does not affect his les^see. ^^ ^ush.) 31, 51 Am. Dec. 41. See 189 See post, at note^ 319-321. ante, § 162, at note 529 a. looWheefer v. Earle, 59 Ma-^s. (5 i»sWest Shore R. Co. v. Wenner, Cuah.) 31, 51 Am. Dec. 41; Logan v. 71 N. J. Law, 682, 60 Atl. 1134. Hall, 4 C. B. 598. § 194 UNDER EXPRE^SS CONDITION. 1387 a breach of condition, he elects that the tenancy shall go on as before, and thereby precludes himself from thereafter enforcing a forfeiture, that is, as it is usually expressed, he thereby ' ' waives ' ' the forfeiture. Ordinarily, if the landlord, after knowl- edge on his part of a breach of condition by the tenant, does any act which recognizes the tenancy as still existent in spite of such breach, he thereby precludes himself from enforcing a forfeiture for such breach,! 9^ and the fact that he did not intend, by such conduct, to waive his right of forfeiture, is immaterial in this re- gard. ^^^ A case might perhaps occur in which actual knowledge by the landlord of the breach of condition would not be necessary in order that his conduct might take effect as a waiver, the breach being such that he is chargeable with knowledge there- of,!^^ but ordinarily actual knowledge is necessary.^^^ (b) Acceptance of rent. The most usual case of a waiver of a right of forfeiture occurs as a result of the acceptance by the landlord, with knowledge of an act of forfeiture, of rent w^hich has accrued since that act, that is, since the breach of condition, such acceptance of rent being necessarily an unequivocal recog- nition of the continued existence of the tenaney.^^s The landlord 194 Green's Case, Cro. Eliz. 3; Harvey v. Oswald, Cro. Eliz. 553, Ward v. Day, 4 Best & S. 337, 5 Best 572. & S. 359; Mathews' Slate Co. v. New 197 Pennant's Case, 3 Coke, 64 a; Empire Slate Co., 122 Fed. 972; Roe d. Gregson v. Harrison, 2 Term Saner v. Meyer, 87 Cal. 34, 25 Pac. R. 425; McKildoe's Ex'r v. Darra- 153 (agreement that rent overdue cott, 13 Grat. (Va.) 278. And see shall be paid at a later date) ; Camp authorities cited post, note 207. v. Scott, 47 Conn. 371; "Williams v. "s Marsh v. Ciirteys, Cro. Eliz. Vanderbilt, 145 111. 238, 34 N. E. 47G, 528; Goodright v. Davids, Cowp. 803; 21 L. R. A. 489, 36 Am. St. Rep. 486; Arnsby v. Woodward, 6 Barn. & C. Garnhart v. Finney, 40 Mo. 449, 93 519; Attalla Min. & Mfg. Co. v. Win- Am. Dec. 303; Ireland v. Nichols, 46 Chester, 102 Ala. 184, 14 So. 565; N. Y. 413; Norris v. Morrill, 40 N. Mageon v. Alkire, 41 Colo. 338, 92 H. 395; McKildoe's Ex'r V. Darracott, Pac 720; Hartford Wheel Club v. 13 Grat. (Va.) 278; Morrison v. Travelers' Ins. Co., 78 Conn. 355, 62 Smith, 90 Md. 76, 44 Atl. 1031 (Ac- Atl. 207; Watson v. Fletcher, 49 111. quiescence in tenant's improve- 498; Stover v. Hazelbaker, 42 Neb. ments). 393, 60 N. W. 597; Levy v. Black- 195 Per Cockburn, C. J., in Tole- more (N. J. Eq.) 67 Atl. 1022; Ire- man V. Portbury, L. R. 6 Q. B. 245. land v. Nichols. 46 N. Y. 413; Conger And see post, at note 199. v. Duryee, 90 N. Y. 594, 43 Am. Rep. 196 See language of Popham, J., in 185; Granite Bldg. Ass'n v. Greene. 1388 FORFEITURE OF LEASEHOLD. § 194 cannot prevent this result by asserting, at tlie time of the ac- ceptance of rent, that this is not to operate as a waiver.^^* It may, however, be so agreed by the parties,2oo and such agreement may, it seems, be inferred from circumstances. 201 It is immaterial, it seems, by whom the rent is paid,202 and so it has been held that its acceptance from an assignee of the lease is a waiver of the breach of a condition of the lease.^os The acceptance of rent must necessarily, in order thus to affect the landlord, be by him,204 or by some person authorized to act for 25 R. I. 48, 54 All. 792; Id., 25 R. I. 586, 57 Atl. 649; Smith v. Edgewood Casino Club, 19 R. I. 628, 35 Atl. 884, 36 Atl. 128, 35 L. R. A. 790; Maid- stone V. Stevens, 7 Vt. 487; Cuschner V. Westlake, 43 Wash. 690, 86 Pac. 948; Pettygrove v. Rothschild, 2 Wash. St. 6, 25 Pac. 907; Hukill v. Myers, 36 W. Va. 639, 15 S. E. 151; Gomber v. Hackett, 6 Wis. 323, 70 Am. Dec. 467. Meath v. Watson, 76 111. App. 516, seems contra. In Michel v. O'Brien, 6 Misc. 408, 27 N. Y. Supp. 173, it was held, on a construction of the particular lan- guage used, that where the lease pro- vided that the landlord should have the right, upon the use of the prem- ises in a prohibited manner, to term- inate the lease, and "in addition" to recover stipulated damages equal to six months' rent, acceptance of rent involved a waiver of the right of forfeiture and also of the right to recover the stipulated damages. A waiver in the instrument of lease of all demand for rent, re- entry, notice to quit and every other formality, does not preclude the ten- ant from asserting a waiver of a right to forfeiture by the acceptance of rent. Hartford Wheel Club v. Travelers Ins. Co., 78 Conn. 355, 62 Atl. 207. 199 Davenport v. Reg., 3 App. Cas. 115; Croft v. Lumley, 5 EI. & Bl. 648, 6 H. L. Cas. 672; Gulf, C. & S. P. R. Co. V. Settegast, 79 Tex. 256, 15 S. W. 228. But see Granite Bldg. Ass'n V. Greene, 25 R. I. 48, 54 Atl. 792. 200 Miller v. Prescott, 163 Mar^s. 12, 39 N. E. 409, 47 Am. St. Rep. 434. 201 This seems to be the effect of Medinah Temple Co. v. Currey, 162 111. 441, 44 N. E. 839, 53 Am. St. Rep. 320; Manice v. Millen, 26 Barb. (N. Y.) 41. The case of Doe d. Cheny v. Batten, Cowp. 243, from which, in the former case, the court quotes in support of the statement that the question whether the acceptance of rent constitutes a waiver is a ques- tion of intention, is of doubtful au- thority. See post, § 205, note 239. 202 Pellatt V. Boosey, 31 Law J. C. P. 281 (provided the tenant assent thereto). 203 Doe d. Griffith v. Pritchard, 5 Barn. & Adol. 765; Whitchot v. Fox, Cro. Jac. 398; Gulf, C. & S. F. R. Co. V. Settegast, 79 Tex. 256, 15 S. W. 228; O'Keefe v. Kennedy, 57 Mass. (3 Cush.) 325. As to waiver of breach of condition against assign- ment, see ante, § 152 j (3). 204 Crouch V. Wabash, St. L. & P. R. Co., 22 Mo. App. 315; Koehler v. Brady, 78 Hun, 443, 29 N. Y. Supp. 388; Gulf, C. & S. F. R. Co. v. Set- tegast, 79 Tex. 256, 15 S. W, 228. § 194 tJNDER EXPRESS CONDITION. 1389 liim,-''5 but payment into the landlord's bank account has been regarded as sufficient for this purpose, when this was the usual mode of paying the rent, though the landlord had instructed the bank not to receive it, no steps being taken to inform the tenant that he would not receive the rent, nor to return it.^o^ it is nec- essary, as in other cases of waiver, that notice of the act of for- feiture be brought home to the landlord.^o^ or, at least, in the case of an asserted waiver by an age at having authority for that purpose, to such agent. ^os The payment need not be in cash, but the allowance by the landlord of a credit on the rent is sufficient.-^^ And an indication of a readiness to accept the rent, accompanied by a failure so to do, occasioned merely by inability to make change, has been re- garded as constituting a waiver.^io Though ordinarily the acceptance of rent accruing after the act of forfeiture thus constitutes a waiver, this has been held not to be the case if, before the acceptance of rent, the landlord had 205 Doe d. Nash v. Birch, 1 Mees. West Shore R. Co. v. Wenner, 70 N. & W. 402, where it was decided that J. Law, 233, 57 Atl. 408, 103 Am. St, one having authority to receive the Rep. 801; Id., 71 N. J. Law, 682, 60 rent has no authority to waive the Atl. 1134. See ante, § 152 f, note forfeiture. 119. 2oe Pierson v. Harvey, 1 Times In Walker v. Wadley, 124 Ga. 275, Law R. 430. 52 S. E. 904, it is said that "where 207 Silva V. Campbell, 84 Cal. 420, the lessor is ignorant of an assign- 24 Pac. 316; Walker v. Wadley, 124 ment of the lease for the full term Ga. 275, 52 S. E. 904; Kew v. Train- of the tenancy, acceptance of the or, 50 111. App. 629; Jackson v. Al- rent with knowledge limifed to in- len, 3 Cow. (N. Y.) 220; Walker v. ferences drawn from facts which Engler, 30 Mo. 130; Jackson v. give no information as to the ex- Brownson, 7 Johns. (N. Y.) 227, 5 istence of a written assignment of Am. Dec. 258; Keeler v. Davis, 12 N. the lease for the full term will not Y. Super. Ct. (5 Duer) 507; Maid- extend the waiver to the full periocJ stone v. Stevens, 7 Vt. 487. of the term covered by the lease In a jurisdiction where a mort- assigned." The present writer con- gage does not involve a transfer of fesses his inability to comprehend the legal title, acceptance of rent this statement. with knowledge of the making of a 20s See Mulligan v. HollingswDrth, mortgage by the lessee does not con- 99 Fed. 216; Doe d. Nash v. Birch, 1 stitute acceptance with knowledge of Mees. & W. 402. a breach of a condition against 209 Brooks v. Rogers, 99 Ala. 433, transfer, so as to preclude the asser- 12 So. 61. tion of a forfeiture on account of a 210 Gradle v. Warner, 140 111. 123, subsequent sale under the mortgage. 29 N. E. 1118, S3 Am. St. Rep. 290. 1390 FORFEITURE OF LEASEHOLD. § 194 instituted an action of ejectment for the purpose of enforcing the forfeiture, this being regarded as an irrevocable assertion of a purpose to terminate the tenancy .-^^ And the acceptance of rent, paid by the lessee in accordance with the terms on which his appeal is allowed, in proceedings by the landlord to recover possession, is not regarded as constituting a waiver.212 The acceptance of re^it which accrued before the act of for- feiture does not effect a waiver, since this does not involve any recognition of the continuance of the tenancy.^i^ 211 Doe d. Morecraft v. Meux, 1 Car. & P. 346; Jones v. Carter, 15 Mees. & W. 718; Big Six Develop- ment Co. v. Mitchell (C. C. A.) 138 Fed. 279, 1 L. R. A. (N. S.) 332; Cleve v. Mazzoni, 19 Ky. Law Rep. 2001, 45 S. W. 88. But see Marshall V. Davis, 28 Ky. Law Rep. 1327, 91 S. W. 714. In Evans v. Wyatt, 43 Law T. (N. S.) 176, it was held (per Lindley, J.) that the payment and receipt of rent accruing after the commence- ment of an action to recover posses- sion for breach of a condition, while it did not cause a waiver of the forfeiture and so restore the old tenancy, was evidence of a new ten- ancy of a periodic character on the terms of the old lease. And see Cochran v. Philadelphia Mortg. & Trust Co., 70 Neb. 100, 96 N. W. 1051, where the possibility of the creation of a new tenancy by the payment of rent by one already in default ap- pears to be suggested in the opinion. 212 Chiera v. McDonald, 14 Mich. 54, 79 N. W. 908; Palmer v. City Liv- ery Co.. 98 Wis. 33, 73 N. W. 559. And see Granite BIdg. Ass'n v. Greene, 25 R. I. 586, 57 Atl. 649. 213 Green's Case, Cro. Eliz. 3; Price v. Worwood, 4 Hurl. & N. 512; Silva V. Campbell. 84 Cal. 420, 24 Pac. 316: RoVihins v. Conway, 92 111. App. 173; Miller v. Prescott, 1C3 Mass. 12, 39 N. E. 409, 47 Am. St. Rep. 434; Pendill v. Union Min. Co., 64 Mich. 172, 31 N. W.IOO; Jackson V. Allen, 3 Cow. (N. Y.) 220; Stuy- vesant v. Davis, 9 Paige (N. Y.) 427; Campbell v. McElevey, 2 Disn. (Ohio) 574; Carraher v. Bell, 7 Wash. 81, 34 Pac. 469. In Lindeke v. Associates' Realty Co., 77 C. C. A. 56, 146 Fed. 630, there was held to be no waiver of the forfeiture by reason of the pay- ment and receipt of rent, for the rea- son that the rent so paid and re- ceived was for a period prior to the time at which the right of re-entry had attached, though subsequent to the date of the breach of condition and of notice of an intention to as- sert a forfeiture, the lease providing for a notice of four months before re-entry. The opinion says that a waiver arises only where the rent has accrued and been accepted after the right of re-entry has attached. The language of the cases generally, however, is that a waiver arises up- on the payment and acceptance of rent which became due before the breach of condition or before the act of forfeiture. The point in- volved in the case referred to seems to have been discussed in no other case. In Kenny v. Sen Si Lun, 101 Minn. 253, 112 N. W. 220, 11 L. R. A. (N. S.) 831, there was held to be a § 194 UNDER EXPRESS CONDITION. 1391 At common law, the acceptance by the landlord of an install- ment of rent, paid on a day after it became due, is not a waiver of the act of forfeiture consisting of its nonpayment on the day on which it became due, that is, he may accept the rent and yet enforce a forfeiture because it was not paid promptly-^i-* There are several cases in this country to the contrary ,2 is but these must be regarded, it would seem, as involving the introduction of an equitable defense in a common-law action, which is in many states now permitted by statute.^i^ Even in the jurisdic- tions, however, in which this latter view prevails, the landlord's acceptance of part of an installment will, it seems, not prevent his enforcement of the forfeiture for nonpayme-nt of the balance.^i"^ waiver by reason of the acceptance of rent accruing during the period between the giving of a notice of an intention to assert a forfeiture and the time at which the notice was limited to expire. But in this case the lease did not require any- time to elapse between the breach and the assertion of the forfeiture. In Cochran v. Philadelphia Mortg. & Trust Co., 70 Neb. 100, 96 N. W. 1051, there is a decision as to the effect of a notation, upon a check given to the landlord by the tenant, indicating the period for which it is to be applied, with reference, it may perhaps be presumed, to whether it was to be regarded as a payment of rent accrued since the forfeiture, so as to constitute a waiver. 214 Co. Litt. 211 b; Green's Case. Cro. Eliz. 3; Pennant's Case, 3 Coke, 64 a: Ward v. Day, 4 Best & S. 337; Denison v. Maitland, 22 Ont. 166; Morrison v. Smith, 90 Md. 76, 44 Atl. 1031. 215 Bacon T. Western Furnituro Co., 53 Ind. 229; Gamhart v. Fin- ney, 40 Mo. 449, 93 Am. Dec. 303; Cuschner v. Westlake, 43 Wash. 690, Sfi Pac. 948; Coon v. Brickett, 2 N. H. 163. In the case first cited it is said that "to insist upon a forfeiture of the lease for the nonpayment of the rent, which he has received, seems to us a legal solecism." But it is to be noted that the forfeiture is for the nonpayment of the rent when it becomes due rather than for the absolute nonpayment thereof. In Bowling v. Crook, 104 Ala. 130, 16 So. 131, it is decided that the landlord cannot, after accepting corn for rent with knov/ledge of its condi- tion, assert a forfeiture on account of the inferior character of the corn. 2ifi See the admirable opinion of Hoadly, J., in Campbell v. McElevey, 2 Disn. (Ohio) 574. And also John- son V. Lehigh Valley Traction Co., 130 Fed. 932. 217 Pendill v. Union Min. Co., 64 Mich. 172, 31 N. W. 100. But In Barber v. Stone, 104 Mich. 90, 62 N. W. 139, it was decided that, when rent was payable in advance, by the acceptance of part of the monthly rent in advance the landlord waived his right to insist on a forfeiture during the period covered by the payment. This seems to involve an apportionment of rent as to time such as is not ordinarily per- mitted. Compare Tipton v. Roberts, 1392 FORFEITURE OF LEASEHOLD. § 194 Nor will his recovery of a personal judgment for the rent have such an effect. -^^ Even though the common-law view be adopted that payment and acceptance of rent, after it becomes due, does not preclude a forfeiture at law for its nonpayment, equity would no doubt inter- vene to prevent a forfeiture if the rent has been paid.^i^ (c) Assertion of claim for rent. The commencement of an action for rent, accruing after the act of forfeiture, with knowl- edge of such act, is regarded as a waiver of the right to enforce the forfeiture. 2 20 The fact that, in a jurisdiction where such a joinder of causes of action is permitted, the landlord, in a pro- ceeding in which he claims possession of the land for breach of a condition requiring the tenant to repair, also claims arrears of rent which have accrued since the commencement of the failure to repair, has been held not to affect the right to enforce the for- feiture,22i the breach being of a continuing eharacter.222 ^n^j it has been held that when the landlord, suing in ejectment, based his right to recovery on a breach of the condition against a cer- tain use of the premises, and also on a failure to pay rent accruing after such former breach, the latter claim did not involve a waiver of the former.223 An absolute and unqualified demand, on the part of the land- lord, for rent accruing after the act of forfeiture, has been said to involve a waiver.224 A mere demand of rent in arrear is evi- dently not a waiver of the right to assert a forfeiture for nonpay- ment of such rent in accordance with the demand.225 48 Wash. 391, 93 Pac. 906, ante, note 222 See post, § 194 1 (4). 97. 223 Toleman v. Portbury, L. R. 6 218 Campbell v. McElevey, 2 Disn. Q. b. 245, L. R. 7 Q. B. 344. (Ohio) 574. 224 Per Parke, J., in Doe d. Nash v. 210 See post, § 194 1 (3). Birch, 1 Mees. & W. 408; per Bram- 220 Dendy v. Nicholl, 4 C. B. (N. -^vell, J., in Croft v. Lumly, 6 H. L. S.) 376; Alexander V. Touhy, 13 Kan. ^^g 705 ^nd see the remarks in 64. In Ireland v. Nichols, 37 How. Pr favor of this view per Loomis, J., in (N. Y.) 222, it was decided that the ^^^^ ^ Q^^^.^ 47 Conn. 366. Mc- fact that the lessor, in an action to ^roskey v. Hamilton, 108 Ga. 640, 34 enforce a forfeiture, asked for the ^ ^ ^^^^ ^^ ^^ ^^ ^^ ^^ ^^ appointment of a receiver to take ^, ^ , ^, ^ , c.„ ,1,.^ rather adverse thereto, charge of the rents and profits, did . . , „ ^„!,r^,. 225 McCroskey v. Hamilton, 108 Ga. not involve a waiver. 2« Penton v. Bamett [1898] 1 Q. 640. 34 S. E. 111. 75 Am. St. Rep. B 276. 79. It is intimated that such de- § 194 UNDER EXPRESS CONDITION. 1393 (d) Action against tenant. Not only does the bringing by the landlord of an action for rent, accruing after the act of forfeiture, operate as a waiver of the right to assert a forfeiture,226 but the bringing of any other action, which involves a recognition of the tenancy as still existing, involves a waiver. So the in- stitution of a statutory proceeding to obtain possession for non- payment of rent has been regarded as involving a recognition of the tenancy as still subsisting, and as therefore operating as a waiver of a right to assert a forfeiture for a previous act (sn the part of the tenant.227 And it has been held that, by asking for an injunction against the continuance of certain acts in breach of a covenant, the landlord waives a right to re-enter on account of such breach.228 The mere fact that an ejectment suit is based on a breach of two conditions in the lease does not involve a waiver of eith- er.22o But if the landlord, in making an entry, expressly states that it is on account of the breach of a particular condition, he can- not thereafter, it has been decided, claim a forfeiture on account of the breach, prior thereto, of a different condition.^^o (e) Notice to tenant. The action of the landlord in giving a regular notice to quit, in order to terminate the tenancy, is such a recognition of the continued existence of the tenancy as amounts to a waiver of the right to enforce a forfeiture,^^! and the giving of the notice necessary in order to sustain the statutory action to recover possession for nonpayment of rent has been also so regarded.232 It has been decided also that where the tenant mand, if complied with, would pre- sert a forfeiture, cannot thereafter elude the assertion of a forfeiture, obtain an injunction. 226 See ante, § 194 i (1) (c). 229 Toleman v. Portbury, L. R. 6 227 Dockrill v. Schenk, 37 111. App. Q. B. 245, L. R. 7 Q. B. 344, ante, 44; Frazier v. Caruthers, 44 111. App. note 223. 61" Nagel v. League, 70 Mo. App. 230 Atkins v. Chilson, 50 Mass. (9 4gY_ Mete.) 52. And see cases cited post, 22s Evans v. Davis, 10 Ch. Div. note 233. 747; Chautauqua Assembly v. Al- 231 Doe d. Scott v. Miller, 2 Car. & iing, 46 Hun (N. Y.) 582. Compare P. 348; Godwin v. Harris, 71 Neb. Linden v. Hepburn, 5 N. Y. Super. 59, 98 N. W. 439. Ct. (3 Sandf.) 668, 5 How. Pr. 188, 232 Dockrill v. Schenk, 37 111. App. and Kramer v. Amberg, 53 Hun, 427, 44; Frazier v. Caruthers, 44 111. App. 6 N. Y. Supp. 303, where it is de- 61. But see Shermer v. Paclello, decided that the landlord, if he as- 161 Pa. 69, 28 Atl. 995. L. and Ten. 88. 1394 FORFEITURE OF LEASEHOLD. § 194 has violated two conditions, tlie landlord cannot enforce a for- feiture for one of such violations, if he gives notice of an intention to enforce a forfeiture for the other violation.^ss (f) Language recognizing tenancy. It has been held that a re- cital to the effect that the tenancy is still existent, in an instru- ment executed subsequently to the act of forfeiture, shows a waiver,234 as likewise does an agreement by the landlord to grant a new term to the tenant after the expiration, by effluxion of time, of the term, a forfeiture of which is sought. ^-''^ A consent by the landlord to an assignment by the lessee has also been held to involve a waiver of the right to assert a forfeiture for a pre- vious act.236 A notice by the landlord to the tenant to make repairs has been regarded as showing an election not to declare a forfeiture for the previous failure to make the repairs, provided they are made on receipt of the notice. ^^''^ g. Distress, Since, ordinarily, a distress can be levied only during the continuance of the tenancy ,-^8 the levy of a distress by the landlord, whether for rent accruing before or after the act of forfeiture, has been regarded as involving a recognition of the tenancy as still existing and as so operating as a waiver.239 233 Brooks V. Rogers, 99 Ala. 433, this letter. The letter, not being 12 So. 61; Atkins v. Chilson, 50 sent, would seem to be out of the Mass. (9 Mete.) 52. See ante, at case so far as the tenant was con- note 229. cerned, and that it had been written 234 Green's Case, Cro. Eliz. 3, would seem to be immaterial, where the use of the word "termor" 238 See post, chapter XXXII. The to describe the person to whom rent statute 8 Anne, c. 14, §§ 6, 7, which was paid was regarded as involving allows distress within six months a recognition that he was still the after the termination of the tenancy, landlord. ^^^ ^^^^ decided not to apply when 235 Ward V. Day, 5 Best & S. 359. the tenancy is terminated by for- 230 Deaton v. Taylor, 90 Va. 219, 17 feiture. Grimwood v. Moss, L. R. 7 S. E. 944. Here, however, the land- C. P. 365; Kirkland v. Briancourt, 6 lord not only assented to the assign- Times Law R. 441. ment but also assured the assignee sso Pennant's Case, 3 Coke, 64 b; that the forfeiture would not be as- Doe d. Flower v. Peck, 1 Barn. & serted. Adol. 428; Ward v. Day, 4 Best & S. 237 Hasterlik V. Olson, 218 111. 411, 337; Doe d. David v. Williams, 7 75 N. E. 1002. Here emphasis is Car. & P. 322; Cotesworth v. Spokes, also placed upon the fact that the 10 C. B. (N. S.) 103; Dermott v. lessor had writ+en a letter assert- Wallach, 68 U. S. (1 Wall.) 61; ing a forfeiture but failed to send Camp v. Scott, 47 Conn. 371; Chase § 194 UNDER EXPRESS CONDITION. 1395 But, as in the case of the acceptance of rent,-^^ the levy of a dis- tress does not have this effect when the landlord has already insti- tuted proceedings to recover possession of the premises o.n account of the act of forfeiture,24i nor when it is necessary to levy a dis- tress before the landlord can enforce a remedy given by statute for nonperformance of a condition or covenant, as when the stat- ute authorizes an action by him for possession on nonpayment of rent, if no sufficient distress is to be found on the premises.242 (2) Delay in assertion of forfeiture. The mere fact that the landlord fails to assert the right of forfeiture immediately upon the tenant's breach of condition should not, it seems, affect his right subsequently to assert it, that is, it should not be regarded as a waiver.2^3 There are, however, occasional statements apparent- ly to the effect that the right must be asserted with the greatest promptitude.2-14 If the landlord, after knowledge of the tenant's act of for- feiture, delays to enforce the forfeiture, and also permits the lat- ter to make improvements upon the premises, he cannot there- after assert the right, with the result of depriving the tenant of the benefit of the improvements. ^^s V. Knickerbocker Phosphate Co., 32 ute the right to retain possession App. Div. 400, 53 N. Y. Supp. 220; for three months was held, in con- Jackson V. Sheldon, 5 Cow. (N. Y.) nection with other circumstances, to 448; McKildoe's Ex'r V. Darracott, 13 explain the delay on the part of the Grat. (Va.) 278. lessor in re-entering for a breach of 210 See ante, note 211. condition involved in such assign- 241 Grimwood v. Moss, L. R. 7 C, ment. p. 360. In Catlin v. Wright, 13 Neb. 558, 242 Brewer v. Eaton, 3 Doug. 230; 14 N. W. 530, a lease of a farm pro- Thomas V. Lulham [1895] 2 Q. B. vided that the lessor might termin- 400. ^te the lease on the lessee's failure 2-13 See Doe d. Sheppard v. Allen, 3 to furnish the lessor's stock on the Taunt. 78; Williams v. Vanderbilt, farm with sufficient food and water 145 111. 238, 34 N. E. 476, 21 L. R. A. during the winter or feeding season, 489, 36 Am. St. Rep. 486; McKildoe's and it was held that the lessor waiv- Ex'r V. Darracott, 13 Grat. (Va.) 278. ed the right to enforce a forfeiture 244 See Gradle v. Warner, 140 111. for the lessee's failure in this re- 123, 29 N. E. 1118; Allen v. Dent, 72 spect if he delayed to do so until Tenn. (4 Lea) 676. the expiration of the winter or feed- In Soper V. Littlejohn, 31 Can. ing season, thus throwing on the Sup. Ct. 572, the fact that one to lessee the burden of caring for the whom the lessee had assigned for stock during the winter months. the benefit of creditors had by stat- 245 Doe d. Sheppard v. Allen, 3 1396 FORFEITURE OF LEASEHOLD. § 194 After the lease has come to an end by effluxion of time,246 or, it seems, by force of a special limitation,^-!' ^he landlord ca::}not assert the right of forfeiture for the purpose of precluding the tenant from exercising his common-law right to take the emble- ments,248 or of preventing the latter from exercising a right, expressly reserved to him, of removing the improvements made by him.249 And no doubt the same principle would be applied as regards the exercise of any other right which the tenant may have on expiration of the lease. (3) Acts inducing breach of condition. It may happen that the landlord, by his language or course of conduct, before any breach of condition by the tenant, in effect waives the condition, or, in other words, licenses its breach. Such a case is clearly dis- tinguishable on principle from the ease in which, after a breach of condition, the landlord waives the right to assert a forfeiture on account thereof. It involves ordinarily an application of the principle of estoppel. For instance, if the landlord in effect tells the tenant that he may do a certain act, which act violates the terms of the condition, he cannot thereafter assert a right of forfeiture because the tenant does such act.^^o On this prin- ciple it has been held that, though the lease provides for a for- feiture if the tenant assigns without the written assent of the landlord, the latter cannot assert a forfeiture if he orally assents to an assignment..25i ^nd even though the landlord does not by express language assent to such act, if he so conducts him.self as to lead the tenant to believe that he will not regard it as a cause of forfeiture, and thus induces such act by the tenant, it cannot be asserted by him as such.^ss Taunt. 78 (dictum); North Stafford- 248 Johns v. Whitley, 3 Wils. 127; shire Steel & Iron Co. v. Camoys, 11 Campbell v. Baxter, 15 U. C. C. P. Jur. (N. S.; pt. 1) 555 (dictum); 42. Hume V. Kent, 1 Ball & B. 554; Mor- 249 Cheatham v. Plinke, 1 Tenn. rison v. Smith, 90 Md. 76, 41 Atl. Ch. 576. 1031; Garnhart v. Finney, 40 Mo. 250 Doe d. Henniker v. Watt, 8 449, 93 Am. Dec. 303; Benavides v. Barn. & C. 308. Hunt, 79 Tex. 383, 15 S. W. 396. 251 See ante, § 152 h. And see People v. Freeman, 110 App. 2^2 Doe d. Knight v. Rowe, 2 Car. & Div. 605, 97 N. Y. Supp. 343. P. 246; Randol v. Scott, 110 Cal. 590, 246 Johns V. Whitley, 3 Wils. 127; 42 Pac. 976 (semhle) ; Moses v. Cheatham v. Plinke, 1 Tenn. Ch. 576. Loomis, 156 111. 392, 40 N. E. 952, 47 247 Campbell v. Baxter, 15 U. C. C. Am. St. Rep. 194; Johnson v. Doug- p_ 42. lass, 73 Mo. 168; Duffield v. Hue, 129 ^ JQ4 UNDER EXPRESS CONDITION. 1397 The mere fact that the landlord has failed to enforce a for- feiture on a previous breach of a condition, without more, should not be rer^arded as a license to commit subsequent breaches thereof, and it has accordingly been decided that his failure to enforce a forfeiture for failure to pay an installment of rent on the day on which it was due does not affect his right to enforce a forfeiture for delay in paying an installment subsequently falling due.253 And the fact that, though the rent was payable in specific articles, the landlord accepted, for a number of years, the money value of such articles in payment of the installments of rent, was held not to preclude him from asserting a forfeiture for failure to pay a subsequent installment in such articles rather than in money .254 But there are occasional decisions to the effect that the landlord's failure, at different periods, to enforce a forfeiture for one breach of a condition, precludes him from doing so upon a subsequent breach, unless at least he gives notice that such will be the effect of a breach.^ss Why an exercise of the landlord's option not to enforce a forfeiture for breach of condition should have the effect of a license to commit another breach is by no means clear. Pa 94 18 Atl. 566; Steiner v. Marks, Gas Co. v. De Witt, 130 Pa. 235, 18 172 Pa. 400, 33 Atl. 695; Hukill v. Atl. 724, 5 L. R. A. (N. S.) 731; Car- Myers, 36 W. Va. 639. penter v. Wilson, 100 Md. 13, 59 Atl. In Jolinson V. Douglass, 73 Mo. 168. 186; Cogley v. Browne, 15 PMla. it was held that if, on demand of (Pa.) 162. rent the tenant told the landlord In Smith v. St. Philip's Church, that' he would credit the rent on a 107 N. Y. 616, 14 N. E. 825, it was note of the landlord, and the land- held that where one took a lease lord made no reply, the latter could for building purposes which con- not thereafter assert a forfeiture for tained a condition against sublet- nonpayment. It does not appear ting, and built an apartment house that the tenant, even if misled, was on the ground leased, and for sev- misled to his prejudice. eral years the landlord accepted the 253 Robbins v. Conway, 92 111. App. rent without objecting that the les- 173; Douglas v. Herms, 53 Minn. 204, see had no right to make leases of 54 N. W. 1112. apartments in the building, he there- 254Lilley v. Fifty Associates, 101 by granted a license to use and oc- Mass. 432, 3 Am. Rep. 387. See post, cupy the building as an apartment note 341. house. The court also said that "it 255 Little Rock Granite Co. v. is consistent with the circumstances Shall, 59 Ark. 405, 27 S. W. 562, 27 and with fair dealing to construe L. R. A. 190, 43 Am. St. Rep. 38; the acts and silence of the defend- Westmoreland & Cambria Natural ant as an assent that the somewhat ;^398 FORFEITURE OF LEASEHOLD. § 194 Analogous to the case of a waiver of the condition, or a license for its breach, is that of the extension by the landlord of the time for its performance. If, for instance, the landlord concedes to the tenant that he need not pay the rent.^se or pay taxes,^^? or make repairs,258 until after the stipulated time, he cannot claim a forfeiture because the rent or taxes are not paid, or the repairs not made, until such time. This is what is technically known as a "suspension" of the condition. (4) Continuing and recurring breaches. Reference is some- times made to a "continuing breach" of a condition, or to a condition which is susceptible of a "continuing breach," it being said that in such case a waiver applies only to past breaches, and does not affect the landlord's right to enforce a forfeiture for a subsequent breach.259 The expressio.n "continuing breach" does not, however, seem particularly appropriate to all classes of cases which arise in this connection. Frequently the expression "re- curring breaches" would seem to be more appropriate, as when the condition calls for the performance not of one single act, but of a series of acts, as occasions arise therefore.^^o In the ease of a condition to make repairs, for instance, different repairs become necessary at different times, and it seems somewhat of a misnomer to speak of the successive failures to do these acts as constituting one single continuing breach. The question in all this class of cases is whether, not the breach, but the condition, is continuous, that is, whether the condition peculiar interest created by the let- 256 Sauer v. Meyer, 87 Cal. 34, 25 ting of the apartments from time to Pac. 153. time for brief periods was not an 257 Manice v. Millen, 26 Barb. (N. underletting or parting with any in- y.) 41. terest in the demised premises with- 258 Doe d. Rankin v. Bindley, 4 in the meaning of the covenant." Barn. & Adol. 84. In Whitehead v. Bennett, 9 Wkly. 259 See e. g., Doe d. Ambler v. Rep. 620. Kindersley, V. C, regarded woodbridge, 9 Barn. & C. 376; Doe d. the acceptance of rent for several gaker v. Jones, 5 Exch. 498; Pen- years without objection to a breach ^^^ ^ Barnett [1898] 1 Q. B. 277. of condition to work the mining ,^^^ ^^^ ^^^ remarks of Tracy, J., property in question as such an ac- .^ ^ ^ ^^^^^^^ ^^ ^ ^ ^^^^ quiescense on the part of the land- lord that he could not assert a for- 43 Am. Rep. 185, in regard to the ex- feiture without first giving notice pression "continuing cause of for- and also time within which to pre- feiture." pare to resume operations. § 194 UNDER EXPRESS CONDITION. 1399 is such that a single breach thereof exhausts the condi- tion, or whether a continuance or recurrence of the same state of things as that which caused a breach in the first place will, after this first breach has been waived, cause another breach of the condition for which forfeiture may be en- forced. The distinction between the two classes of conditions, the continuous and noncontinuous, may be illustrated as fol- lows: In the case of a condition to make repairs or improve- ments within a certain time, or, as it would usually occur, a covenant to that efi^ect, accompanied by a condition of re-entry in case of breach of the covenant, it is evident that, after the teaiant has once broken the covenant or condition by failing to make repairs or improvements within the stipulated time, there can be no further breach.^^i On the other hand, if the tenant agrees generally to repair, there is a breach of the covenant or condition so long or so often as he fails to make any necessary repairs, and in such case there is a continuing, or recurring, breaeh.2S2 go in the case of a covenant to keep the premises in- sured, there is a breach so long or so often as the premises are not insured.2*53 And in case the condition is to keep a way open,^^* to keep trees planted on the premises,^^^ or to refrain from using the premises for certain specified purposes,26o there is a breach so long or so often as the tenant leaves the way unopened, leaves trees unplanted, or uses the premises for the purposes named, 26iMcGlynn v. Moore, 25 Cal. 384, 205 Bleecker v. Smith, 13 Wend. 85 Am. Dec. 133. See Jacob v. Down (N. Y.) 530. So in the case of a [1900] 2 Ch. 156. covenant to keep land in meadow. 2(52 Doe d. Baker v. Jones, 5 Exch. Ainley v. Balsden, 14 U. C. Q. B. 535. 498; Coward v. Gregory, L. R. 2 C. 2gg Doe d. Ambler v. Woodbridge, P. 153; Jacob v. Down [1900] 2 Ch. 9 Barn. & C. 376; Farwell v. Easton, 156; Penton V. Barnett [1898] 1 Q. B. 63 Mo. 446; Mulligan v. Hollings- 276. worth, 99 Fed. 216; Granite Bldg. 263 Doe d. Muston v. Gladwin, 6 Q. Ass'n v. Greene, 25 R. I. 48, 54 Atl. B. 953; Doe d. Flower v. Peck, 1 792. For other instances of a con- Barn. & Adol. 428; Price v. Wor- tinning condition, see Jones v. Dur- wood, 4 Hurl. & N. 512. rer, 96 Cal. 95, 30 Pac. 1027 (Condi- 264 Jackson v. Allen, 3 Cow. (N. tion as to disposition of crops and Y.) 220; Gluck V. Elkan, 36 Minn. 80, other produce); Alexander v. Hod- 30 N. W. 446 (Condition requiring ges, 41 Mich 691, 3 N. W. 187 (Con- lessee to keep stairway open and dition that lessee comply with all free from rubbish). laws and ordinances). 2400 FORFEITURE OF LEASEHOLD. § 194 respectively, and, in each of these cases, the fact that the landlord has done some act which involves a waiver of the right to enforce a forfeiture for the previous breach of condition by the tenant does not preclude him from enforcing a forfeiture if the tenant fails subsequently to perform the condition. A condition of re-entry in case the lessee fails to perform his covenant to pay taxes is continuous, it has been considered, in the sense that a waiver of a breach by failure to pay certain taxes will not preclude a forfeiture for failure to pay taxes subse- quently assessed, while the mere continuance, after the waiver, of the failure to pay the taxes assessed before the waiver, does not authorize a forfeiture.^^"^ A condition against assigning or subletting is, in its nature, capable of repeated or recurring breaches, and it has been decided that the fact that one breach of such a condition is waived, by the acceptance of rent or otherwise, does not preclude the landlord from enforcing a forfeiture for a subsequent breach.-^s There is, however, one decision to the contrary,269 in terms based upon the technical rule that a license to make an as- signment destroys a condition against assignment,^'^'' thus extend- ing this rule to the case of the waiver of a breach caused by a previous assignment.^'^i It has been held that when there is a condition against sub- letting, or permitting any person other than the lessee to occupy the premises, and the lessee sublets, there is not a continuing breach merely because the sublessee continues in occupation for the term of the sublease, and that consequently acts of waiver during that time preclude the lessor from thereafter asserting a right of forfeiture.2'^2 j^j^^ i\iq game principle, that there is no continuing or recurring breach if the lessee, having sublet, is not in a condition to control the occupation or use of the premises, 267 Conger v. Duryee, 90 N. Y. 594, Ex'r v. Darracott, 13 Grat. (Va.) 278. 43 Am. Rep. 185. ^co Murray v. Harway, 56 N. Y. 268 Doe d. Boscowen v. Bliss, 4 337. Taunt. 735; Doe d. Griffith v. Prit- 270 See ante, § 152 1. chard, 5 Barn. & Adol. 765, per Pat- 271 See ante, § 152 1, note 201. teson, J.; Walker v. Wadley, 124 Ga. 272 Goodright v. Davids, Cowp. 803; 275, 52 S. E. 904; Farr v. Walrond v. Hawkins, L. R. 10 C. P. Kenyon, 20 R. I. 376, 39 Atl. 241. 39 ^42; Ireland v. Nichols, 46 N Y. 413; L. R. A. 773. See Bleocker v. Smith, McKildoe's Ex'r v. Darracott, 13 13 Wend. (N. Y.) 530; McKildoe's Grat. (Va.) 278. § 194 UNDER EXPRESS CONDITION. 1401 was applied when the lessee covenanted not to permit a particular use of the premises, and, his sublessee having begun such use, the original lessor accepted rent from the lessee, the lessor being regarded as precluded from enforcing a forfeiture on ac- count of the continuance of the forbidden use by the sublessee for the balance of his term.^^^ In England there is not infrequently a general covenant by the teJ2ant to repair, and also a covenant by him to repair on notice from the laxidlord, and it has been decided that, by a notice to repair within a certain period, the breach of the general covenant to repair is waived, so that, though the lease provides for a for- feiture on breach of any covenant, there is no ground for for- . feiture till this period has elapsed.274 A notice to repair " forth- with, "^^s. 276 however, or "in accordance with the covenants of the lease, "277 has been held not to involve a waiver of the general covenant. j. Assertion and enforcement of forfeiture. At common law, an actual re-entry was ordinarily necessary in order to terminate an estate of freehold for breach of a condition subsequent, it be- ing considered that, since the estate commenced by a formal act, livery of seisin, it could terminate only by an act of equal formali- ty 278 In the case of a term of years, however, since this did not commence by livery of seisin, a re-entry was not absolutely neces- sary, and the landlord's mere assertion of a forfeiture was suffi- cient to revest the property in him.279 But when the lease pro- vided that, upon a certain default by the tenant, the landlord might "re-enter," a re-entry was, it seems, under the older Eng- lish practice, regarded as necessary. ^s^ The requirement of re-entry was, under the old practice in ejectment, satisfied by the tenant's entry into the consent rule 273 Griffin v. Tomkins, 42 Law T. 218a, and authorites cited 1 Tif- (N. S.) 359. But see remarks of fany, Real Prop. p. 180. Bramwell, J., in Lawrie v. Lees, 14 279 Co. Litt. 214 b; Browning v. Ch. Div. 249. Beston, 1 Plowd. 135, 136. 274 Doe d. Moreeraft v. Meux, 4 280 Baylis v. Le Gros, 4 C. B. (N. Barn. & C. 606. S.) 537; Jones v. Carter, 15 Mees. & 275. 27«i Roe d. Goatly v. Paine, 2 W. 718, per Parke, B.; Arnshy v. Camp. 520. Woodward, 6 Barn. & C. 519; Liddy 277 Few V. Perkins, L. R. 2 Exch. v. Kennedy, L. R. 5 H. L. 134, per 92. Lord Westbury. 278 See Litt. § 351; Co. Litt. 214 b, 1402 FORFEITURE OF LEASEHOLD. § 194 in such an action brought by the landlord, this involving a confes- sion by him of the landlord's entry .-^^ Tlie fictions in ejectment have now been abolished in England, but an actual re-entry does not seem to be regarded as necessary, provided an aetlMi to recover possession is brought by the landlord, even though the lease expressly gives a right of "re-entry" for breach of con- dition.282 When the lease provides that it is to be void or to come to an end upon a default by the tenant, a mere declaration by the landlord of his option to assert the forfeiture, if communi- cated to the tenant, would seem, under the common-law author- ities, sufficient to terminate the tenancy .^^^ In this country the decisions but seldom suggest any distinc- tion in this regard between a provision that, upon breach of con- dition, the landlord may re-enter, and one that, in such case, the lease shall become void.284 Occasionally the courts speak of a ''re-entry" as being the proper mode of enforcing the forfeiturCj^^fi but it is questionable whether by this is meant any more than that the tenancy continues till tlie forfeiture is in some way as- serted.2S6 In other cases it is stated that an actual entry is 281 Little V. Heaton, 2 Ld. Raym. re-entry is necessary if the lease 750, 1 Salk. 259; Goodright v. Cator, provides for re-entry, and otherwise 2 Doug. 477; Jones v. Carter, 15 not. And in Ocean Grove Camp Mees. & W. 718; Matthews v. Ward, Meeting Ass'n v. Sanders, 68 N. J. 10 Gill & J. (Md.) 443. Law, 631, 54 Atl. 448, the fact that 2S2 Ward v. Booth, 10 Times Law the instrument of lease contained a R. 446; Grimwood v. Moss, L. R. 7 provision that the lease shall be "at C. P. 360; Kilkenny Gas Co. v. Som- an end" on nonpayment of rent was erville. 2 L. R. Ir. 192; Sergeant v. held to justify judgment for the Nash [1903] 2 K. B. 304. As be- landlord in ejectment, though there fore stated, in England and some of was no proof that there was no suffi- the states, an action of ejectment is, cient distress on the premises so as by express statutory provision, made to bring it within the local statute the equivalent of a re-entry in some (ante, note 164), though such proof, cases, when the forfeiture claimed it is said, is necessary when there is on account of the nonpayment of is "a mere right of re-entry for non- rent. See ante, at notes 163, 164. payment of rent." 283 See authorities cited ante, 2R5 See Gage v. Smith, 14 Me. 466; note 279. In Jones v. Carter, 15 Shattuck v. Lovejoy, 74 Mass. (8 Mees. & W. 718, this question is ex- Gray) 204; Robey v. Front, 7 D. C. pressly left undetermined. 81; Holman v. DeLin, 30 Or. 428, 47 284 In Guffy y. Hukill, 34 W. Va. Pac. 708. 49. 11 S. E. 754, 8 L. R. A. 759, 26 28g See ante, at note 86. Am. St. Rep. 901, it is said that a § 194 UNDER EXPRESS CONDITION. 1403 not necessary, and that a clear assertion, by word or act, of the landlord's intention that the tenancy shall come to an end, is Buf!icient.28" A reletting by the landlord to another person has occasionally been regarded as a sufficient declaration of such an intention.288 Actual re-entry is not necessary in any case, even in that of a freehold lease, if the lessor is already in possession.-'^^ And the action of the landlord in inducing the person in possession, whether a subtenant,^^*^ or a stranger who has entered in the 287 Bowman v. Foot, 29 Conn. 331; Read v. Tuttle, 35 Conn. 26, 95 Am. Dec. 21G; Cheney v. Bonnell, 58 111. 268 ("Forfeiture must be formally and clearly declared") ; Walker v. Engler, 30 Mo. 130; Alexander v. Hodges, 41 Mich. 691, 3 N. W. 187 ("A demand at such a time and place that if complied with posses- sion would be at once secured is all that can possibly be needed") ; Wills V. Manufacturers' Natural Gas Co., 130 Pa. 222, 18 Atl. 721, 5 L. R. A. 603; Guffy v. Hukill, 34 W. Va. 49, 11 S. E. 754, 8 L. R. A. 759, 26 Am. St. Rep. 901. It is so assumed in Updegraff v. Lesem, 15 Colo. App. 297, 62 Pac. 342; McCroskey v. Hamil- ton, 108 Ga. 640, 34 S. E. Ill, 75 Am. St. Rep. 79. S. Liebmann's Sons Brew. Co. v. Lauter, 73 App. Div. 183, 76 N. Y. Supp. 748; Mayer v. Clarke, 129 111. App. 424, appear to be contra. In Cannon v. Wilbur, 30 Neb. 777, 47 N. W. 85, it is said that a "reasonable notice" of an in- tention to declare a forfeiture is necessary. Here it was decided that if the landlord obtained possession from a subtenant after default with- out having first given such notice, and excluded the original tenant, he was liable in damages as for an evic- tion. It is not made plain whether the court means that both a "reason- able notice" and also a declaration of forfeiture are necessary. In Updegraff r. Lesem, 15 Colo. App. 297, 62 Pac. 342, supra, it was decided that one joint lessor could not make a declaration of forfeiture on behalf of the others unless spec- ially authorized. In McCrosky v. Hamilton, 108 Ga. 640, 34 S. E. Ill, 75 Am. St. Rep. 79, supra, it was decided that an agent of the lessor, authorized to declare a forfeiture, could do it though a subagent, a servant. 2S8 Allegany Oil Co. v. Bradford Oil Co., 21 Hun, 26; Id., 86 N. Y. 638; Rinfret v. Morrisey (R. I.) 69 Atl. 763 (semble); Guffy v. Hukill, 34 W. Va. 49, 11 S. E. 754, 8 L. R. A. 759, 26 Am. St. Rep. 901. But not if the second lease is expressly made subject to the first. Schaupp v. Hu- kill, 34 W. Va. 375, 12 S. E. 501. And see Kreutz v. McKnight, 53 Pa. 319. 289 Allegany Oil Co. v. Bradford Oil Co., 21 Hun, 26; Id., 86 N. Y. 638; Ray V. Western Pennsylvania Nat- ural Gas Co., 138 Pa. 576, 20 Atl. 1065, 12 L. R. A. 290, 21 Am. St. Rep. 922; Sheaffer v. Shealfer, 37 Pa. 525; Maxwell v. Todd, 112 N. C. 677, 16 S. E. 926; Guffy v. Hukill, 34 W. Va. 49, 11 S. E. 754, 8 L. R. A. 759, 26 Am. St. Rep. 901. 2i>o Baylis v. LeGros, 4 C. B. (N. S.) 537. 1404 FORFEITURE OF LEASEHOLD. §104 tenant's absence,^^! to accept a lease from him, has been regarded as the equivalent of a re-entry. A re-entry being, as above indicated, the recognized mode, by the common-law authorities, for the assertion of a right of for- feiture for breach of condition, it seems clear that, at the present time, the landlord may so re-enter without resorting to a judicial proceeding to recover possession.292 The right of re-entry is, however, in some jurisdictions, subject to the limitation that it must be peaceable in character,293 this according with the rule there prevailing as to the right of the landlord to take posses- sion by force upon the expiration of the term-^^^. 295 jjj others the re-entry would be effective even though forcible. 291 O'Hare v. McCormick, 30 U. C. Q. B. 567. 292 That he has the right to enter peaceably, see Winn v. State, 55 Ark. 360, 18 S. W. 375; Wetzel v. Meran- ger, 85 111. App. 457; Wright v. Everett, 87 Iowa, 697, 55 N. W. 4; Abrahams v. Tappe, 60 Md. 317;" Metropolitan Land Co. v. Manning, 98 Mo. App. 248, 71 S. W. 696; Geer V. Boston Little Circle Zinc Co., 126 Mo. App. 173, 103 S. W. 151; Losch V. Pickett, 36 Kan. 216, 12 Pac. 822 (May remove lessee's chattels in his absence) ; Peacock & Hunt Naval Stores Co. v. Brooks Lumber Co., 96 Ga. 542, 23 S. B. 835; Smith v. De- troit Loan & Bldg. Ass'n, 115 Mich. 340, 73 N. W. 395, 39 L. R. A. 410, 69 Am. St. Rep. 575; Alexander v. Griswold, 17 N. Y. Supp. 522; Marsh V. Bristol, 65 Mich. 378, 32 N. W. 645. In Jackson v. Elsworth, 20 Johns. (N. Y.) 180, it seems to be 1 bought that an action of ejectment is necessary. The authorities there cited do not support such a view. In Cockerline v. Fisher, 140 Mich. 95 103 N. W. 522, the fact that the • landlord by artifice induced the ten- ant to leave the premises, and so was enabled peaceably to re-enter in his absence, was held not to ren- der his re-entry illegal. Compare Lasserot v. Gamble (Cal.) 46 Pac. 917, post, note 293. 293 Winn V. State, 55 Ark. 360, 18 S. W. 375; Kerr v. O'Keefe, 138 Cal. 415, 71 Pac. 447; Goshen v. People, 22 Colo. 270, 44 Pac. 503; Peacock & Hunt Naval Stores Co. v. Brooks Lumber Co., 96 Ga. 542, 23 S. E. 835; Thiel V. Bull's Ferry Land Co., 58 N. J. Law, 212, 33 Atl. 281; Hubner V. Feige, 90 111. 208; Briggs v. Roth, 28 111. App. 314; Graham v. Wom- ack, 82 Mo. App. 618; Spencer v. Commercial Co., 30 Wash. 520, 71 Pac. 53. Lasserot v. Gamble (Cal.) 46 Pac. 917 is to the effect that obtaining possession by having the tenant ar- rested on some criminal charge and then taViing advantage of his con- finement and the momentary ab- sence of his servant constituted a forcible detainer within the statute. Compare Cockerline v. Fisher, 140 Mich. 95, 103 N. W. 522, ante, note 292. The lease may, it has been de- cided, stipulate against liability for the use of force in removing the ten- ant on default. Howe v. Frith (Colo.) 95 Pac. 603. 204, 295 See post, § 216. § 194 UNDER EXPRESS CONDITION. 1406 No notice from the landlord to the tenant is, it seems, necessary to validate the former 's re-entry for breach of condition,^^^ unless the right of re-entry is expressly conditioned on the giving of notice.^^'' In New York there is a specific provision for a notice of fifteen days prior to a re-entry or action to recover possession, when the right of re-entry is, by the lease, expressly conditioned upon a default in rent and a lack of sufficient distress on the premises, the intention being, in view of the abolition of distress, to substitute the requirement of notice for that of insufficiency of distress.2f8 This statutory requirement of notice has been held to apply only when the lease expressly requires an insuffi- ciency of distress to authorize a re-entry for nonpayment of rent,-^^ and that such a requirement exists in one clause of the lease does not preclude a re-entry without notice under another clause. ^"^o In New Hampshire it is provided that notice to quit at the end of seven days shall be equivalent to an entry for condition broken,'^^! and such notice need not state that it is given on ac- count of breach of condition.^os if the tenant fails to leave at the time specified in the notice the landlord may enter, it is said, provided he commits no breach of the peace, and may remove the tenant's goods.'^*'^ In case the landlord, instead of making a re-entry, resorts to a judicial proceeding to recover possession on breach of con- 296 Apparently to the effect that Little Circle Zinc Co., 126 Mo. App. no notice is necessary is Den d. 173, 103 S. W. 151. Bray v. McShane, 13 N. J. Law (1 29.S Code Civ. Proc. § 1505. See J. S. Green) 35; Comegys v. Van Rensselaer v. Snyder, 13 N. Y. Russell, 175 Pa. 166, 34 Atl. (3 Kern.) 299; Main v. Green, 32 657. And see Whitney v. Swett, 22 Barb. (N. Y.) 448. N. H. 10, 53 Am. Dec. 228. In Can- 2»9 Hosford v. Ballard, 39 N. Y. non V. Wilbur, 30 Neb. 777, 47 N. W. 147; Cruger v. McLaury, 41 N. Y. 85, a notice is reijarded as necessary. 219. 297 See Muskett v. Hill, 5 Bing. N. ^^'^ Van Rensselaer v. Jewett, 2 N. C. 6S4; Smith v. Blaisdell, 17 Vt. 199. ^- ^^ Comst.) 135; Martin v. Rector, 118 N. Y. 476, 23 N. E. 893, 16 Am. It has been decided that if the lease requires notice of forfeiture St. Rep. 771; Garner v. Hannah, 13 N. Y. Super. Ct. (6 Duer) 262. by mail, but does not name any par- 30^ p^^^ g,. ^g^^^ ^ g^g^ g. ^ ticular length of notice, the lessor 302 Russell v. All'ard, 18 N. H. 222. may re-enter immediatly after send- 303 Whitney v. Swett, 22 N. H. 10, ing the notice. Geer v. Boston 53 Am. Dec. 228. j^40« FORFEITURE OF LEASEHOLD. § 194 dition, tlie action of ejectment, or its statutory equivalent, is or- dinarily the proijer form of proceeding. In some jurisdictions, however, a summary proceeding is available for this purpose.^o^ While a court of equity will not ordinarily declare or enforce a forfeiture,^*^^ it has been decided that a landlord may there obtain such relief on account of the breach of a condition, when possession and control of the property has been taken by that court through its receiver.^*^^ It has been held that the landlord cannot enforce a condition as to part of the premises, and waive it as to the balance,^^" and this seems to accord with the common-law rule that a condition shall not be apportioned.^os It has, however, been decided, in another state, that one having the leasehold interest in part of the premises cannot, in ejectment against him to enforce the condition as to that part, assert in defense that the landlord did not seek to enforce it against another part, in the possession of another tenant.309 k. Effect of enforcement of forfeiture. The effect of the en- forcement of a forfeiture is to terminate the tenancy, and, ordi- narily, the rights and obligations connected therewith.^io There- after, for instance, the tenant cannot usually assert a right to re- move fixtures annexed by him to the premises,^!! nor assert a right to emblements.312 j^j^i n has been decided that, when the 304 See post, § 274 b. Law Rep. 1327, 91 S. W. 714, a 305 Pomeroy, Equity Jurisprudence, clause that in case the lessee con- §§ 459, 460. That an injunction tinued in possession after the ex- against the tenant's use of the prem- piration of the term or after for- ises after breach of a condition is feiture he should hold in accord with not the landlord's proper remedy, the terms of the lease was given the see Kramer v. Amberg, 53 Hun, 427, effect, apparently, of making the les- 6 N. Y. Supp. 303. see a tenant of the lessor for the 300 Gunning v. Sorg, 214 111. 616, original term, even after re-entry 73 N. E. 870. for condition broken. How the 307 Ocean Grove Land Ass'n v. term could be forfeited and yet still Berthall, 62 N. J. Law, 88, 40 Atl. exist in the lessee is not entirely 779. clear. 30R See ante, note 181. sii See post, § 242 d. But one who 309 Main v. Green, 32 Barb. (N. has sold articles to the tenant, re- Y.) 448, 33 Barb. 136. See Stuyve- taining title in himself, can remove sant V. Grissler, 12 Abb. Pr. (N. them. "Webster v. Bates Mach. Co., S.) 6. 64 Neb. 30G, 89 N. W. 789. 310 In Marshall v. Davis, 28 Ky. 312 See post, § 251 d. It has been § 194 UNDER EXPRESS CONDITION. 1407 statute makes the service of a declaration in ejectment equivalent to a re-entry, the tenant cannot claim the crops, even though they were severed by him before the judgment in such action in favor of the landlord, the possession obtained by the landlord under the judgment relating back to the date of the service of the declara- tion.313 It has been decided in one state that one to whom the tenant has sold the crops before any default stands in a better po- sition than the tenant in this regard, and may claim them, even though not actually severed, as against the landlord re-entering for a forfeiture,3i4 while elsewhere it was held that a mortgagee of the crops has no greater rights than the tenant himself and cannot claim them as against the landlord in such case,^!^ a view which seems more in accordance with the generally accepted rules as to the effect of a forfeiture. A subtenant is, ordinarily at least, entitled to emblements upon the termination of his interest by reason of an act of forfeiture on the part of the principal tenant, although the latter is not so entitled.316 But no such right exists in favor of the subtenant, it has been decided, if he took his sublease and sowed the crop after the service of a declaratian in an action by the principal landlord to enforce the forfeiture, such service being, by statute, equivalent to a re-entry .^^"^ By the enforcement of the forfeiture, the same estate becomes revested in the lessor, or his transferee, as was vested in the lessor at the time of making the lease,3i8 and his rights take pre- cedence of all mesne charges and incumbrances.^!^ So a mort- gage,22o or other lien,32i arising or created since the making of held that the fact that the landlord (Md.) 139; Samson v. Rose, 65 N. Y. denied the tenant's right to harvest 411. a crop and that he repaired a fence sit Samson v. Rose, 65 N. Y. 411. does not show a re-entry, so as to sis Co. Litt. 202 a. pre'-liide the tenant from thereafter sia Bac. Abr., Conditions (O, 4). taking the crop. See Somers v. 320 Abrahams v. Tappe, 60 Md. Loose, 127 Mich. 77, 86 N. W. 386. 317; Crandall v. Sorg, 99 111. App. 313 Samson v. Rose, 65 N. Y. 411. 22. 314 Nye V. Patterson, 35 Mich. 413; 321 Williams v. Vanderbilt, 145 111. Carney v. Mosher, 97 Mich. 554, 56 238, 34 N. E. 476, 21 L. R. A. 489, 36 N. W. 935. Am. St. Rep. 486; Mills v. Matthews, 315 Gregg V. Boyd, 69 Hun, 588, 23 7 Md. 315; Gable v. Preachers' Fund N. Y. Supp. 918. Soc, 59 Md. 455; Lenderking v. Ros- 3i6Bevans v. Briscoe, 4 Har. & J. enthal, 63 Md. 28, 52 Am. Rep. 495. 1408 FORFEITURE OF LEASEHOLD. § I94 the lease, is absolutely divested. The interest of one claiming as subtenant under the lessee or under an assignee of the lessee is also divested by the assertion of the forfeiture.322 It w^as decided in England, under the old practice in eject- ment, that, after the rendition of a judgment for the landlord in such an action brought to enforce a forfeiture, the tenant w^as to be considered, in point of law, as a trespasser from the day of the demise laid in the declaration, and that therefore he had, at an intervening day, no interest in the crops on v^^hieh an ex- ecution against the tenant could then be validly levied.^ss On a like theory, since the abolition of the fictions in ejectment, an execution levied on the crops after the date of the landlord's re- entry, or of whatever act on his part might be regarded as equiva- lent thereto, would be nugatory as against the landlord. It would seem, indeed, that the crops being, until severed, a part oF the land, a re-entry by the landlord would take precedence of an execution which may have been levied at any time previous to such re-entry, unless the levy is to be regarded as a constructive severance. 2-* After a re-entry under a provisioji that, on default, the lessor might re-enter and repossess and enjoy the premises as of his former estate, the tenant cannot, it has been decided, claim pay- ment for improvements under a stipulation in the lease for such payment ' ' at the expiration of the term. ' '^^s There are in New York somewhat early decisions to the effect that, if the landlord takes possession after the tenant has vacat- ed, with rent in arrear, and the landlord, or one claiming under him, thereafter holds possession for a number of years, it will be presumed, in favor of the latter 's title, that he re-entered under a clause of re-entry in the lease.^-^ At the present day, pre- But a forfeiture, so called, by Ir. 318, where such a view is inti- agreement, without any ground mated, but the decision was finally therefor, cannot divest the lien of based on the fact that the proceed- an execution against the lessee ing was under the statute to recover (Farnum v. Hefner, 79 Cal. 575, 21 possession for nonpayment of rent, Pac. 955, 12 Am. St. Rep. 174), or, and not at common law to enforce presumably any other lien. a forfeiture for breach of condition. 322 See ante, at notes, 187, 188. 32.5 Bates v. Johnston, 58 Hun, 323 Hodgson V. Gascoigne, 5 Barn. 528, 12 N. Y. Supp. 403; Id., 126 N. & AJd. 88. Y. 681, 28 N. E. 249. 324 See Russell v. Moore, 8 L. R. 326 in Jackson v. Demaxest, 2 § 194 UNDER EXPRESS CONDITION. 1409 sumably, in such a case, the title of the la.ndlord to the premises, free from any rights in the tenant, would be supported upon the theory, not of a presumption of re-entry, but of a surrender by operation of law.327 A provision that on re-entry the subleases should "belong to" the head landlord has been held not to create the relation of landlord and tenant between him and the sublessees.328 The effect of the enforcement of a forfeiture of the tenant's interest, as terminating the liability for rent, and the operation of the occasional stipulations looking to the continuance of the tenant's liability in that respect in spite of the forfeiture, have been previously discussed.^^^ 1. Relief against forfeiture — (1) General rule. As a general rule, courts of equity will oiot grant relief from forfeiture for a cause other than the non-payment of a sum of money,33o j^ -tj^e ab- sence of fraud, accident, surprise or mistake. So relief has been refused when the asserted forfeiture was for breach of a covena*nt not to assicrn nor underlet without the landlord's consent,^^^ not to permit the existence of a way over the land,332 to repair the premises,^^^ to make improvements,^^^ to refrain from a Gaines (N. Y.) 382, which was not a szs -Williams v. Michigan Cent. R. case of a lease, properly speaking, Co., 133 Mich. 448, 95 N. W. 708, 103 but of a conveyance in fee with a Am. St. Rep. 458. clause of re-entry for nonpayment 329 See ante, § 182 j. of rent, the grantee vacated, and the 330 See Gregory v. Wilson, 9 Hare, grantor then sold to one who occu- 683; Hill v. Barclay, 18 Ves. 56; pied fourteen years, and a valid re- Nokes v. Gibbon, 3 Drew. 681; Bar- entry was presumed. In Jackson v. row v. Isaacs [1891] 1 Q. B. 417; Stewart, 6 Johns. (N. Y.) 34, a case Sheets v. Selden, 74 U. S. (7 Wall.) of a lease for 999 years, a re-entry 416. was presumed after a lapse of twen- 331 wafer v. Mocato, 9 Mod. 112; ty-two years from the landlord's re- Hill v. Barclay, 18 Ves. Jr. 56; Bar- sumption of possession. In Jack- row v. Isaacs [1891] 1 Q. B. 417; son V. Walsh, 3 Johns. (N. Y.) 226, Easton Tel. Co. v. Dent [1899] 1 Q. possession for nine years, and in B. 835; Roberts v. Geis, 2 Daly (N. Jackson v. Elsworth, 20 Johns. (N. Y.) 535; Sheets v. Selden, 74 U. S. Y.) 180, for ten years, was held (7 Wall.) 416. insufficient to raise a presumption of 332 Descarlett v. Dennett, 9 Mod. re-entry; and in Garrett v. Scouten, 22. 3 Denio (N. Y.) 334, it was recog- 333 Hill v. Barclay, 18 Ves. Jr. 56; nized that mere lapse of time, un- Gregory v. Wilson, 9 Hare, 683; accompanied by a change of posses- Bracebridge v. Buckley, 2 Price, sion, raised no such presumption. 200; Job v. Banister, 2 Kay & J. 374. 327 See ante, § 190 c. 834 Nokes v. Gibbon, 3 Drew. 681. L. and Ten. 89. 1410 FORFEITURE OF LEASEHOLD. § I94 particular use of the preniises,335 and to insure.336 There are, however, occasional decisions in which the courts have shown a disposition to relieve against a forfeiture for failure to repair or improve, in view of the particular circumstances of the case.^^T So in one ease it was held that relief would be given against a forfeiture for delay in making improvements, it appearing that the delay was not willful, that the lessee had made preparations to carry on the work, that no demand was made for greater haste, and that no injury resulted to the lessor from the delay, and it further appearing that the requirement that the work be done within a certain time was imposed in order to obtain satisfactory security for the payment of the rent, and that this was promptly paid,338 In another case, on the theory that equity will relieve in case of a forfeiture involving a hardship on the tenant, if com- pensation can be made, it was held that, though tlie landlord was given a right of re-entry in case the tenant failed to make certain improvements, and he actually re-entered for that cause, the tenant was entitled to a specific performance of the lessor's agreement, contained in the instrument of lease, to convey the premises to the lessee on payment of a sum named.^^^ (2) Fraud, mistake, accident and surprise. What circum- stances will constitute such fraud, mistake, accident or surprise as will justify a court of equity in granting relief does not clearly appear from the decisions. Occasionally the courts have asserted the view that if the landlord has, by his conduct, induced the tenant to believe that a strict performance of the covenant or condition will not be insisted on, an attempt on his part to en- force the forfeiture involves a fraud, entitling the tenant to equitable relief.^^*' By other cases, as before stated, such action 335 Macher v. Foundling Hospital, 465, 45 N. E. 933, 57 Am. St. Rep. 1 Ves & B. 188. 472. Relief against forfeiture for 336 Reynolds v. Pitt, 19 Ves. Jr. the purpose of obtaining specific 134- Rolfe V. Harris, 2 Price, 206, performance of a covenant to con- note* "White V. Warner, 2 Mer. 459; vey was refused when the term had Thompson v. Guyon, 5 Sim. 65. expired by lapse of time before trial 337 Hack V. Leonard, 9 Mod. 91 Sanders v. Pope, 12 Ves. Jr. 282 Bargent v. Thomson, 4 Giff. 473 of the proceeding for relief. Cov- entry V. McLean, 21 Ont. App. 176. 340 Horton v. New York Cent. & Bamford v. Creasy, 3 Giff. 675. H. R. R. Co.. 12 Abb. N. C. (N. Y.) 3nRHaf;ar v. Buck, 44 Vt. 285, 8 30; Thropp v. Field, 26 N. J. Eq. (11 Am. Rpp. 368. C. E. Green) 82. 83oLundin v. Schoeffel, 167 Mass. § 194 UNDER EXPRESS CONDITION. 1411 on the part of the landlord is regarded rather as a waiver of the condition.341 So far as such a state of facts may furnish grounds for equitable relief, it seems that it might be regarded as a case of surprise rather than of fraud. The action of the landlord in eluding the tenant's efforts to pay rent when due, followed hy an action to enforce a forfeiture for nonpayment, presents a case of fraud, and equity will relieve in such case.^'i^ Eelief has been accorded as for mistake induced by the land- lord when, after notifying the tenant to repair within six months, in accordance with a covenant by the tenant to repair within that length of time after notice, the parties entered upon negotiations looking to a surrender of the lease, and it was decided that a forfeiture would not be allowed until six months had elapsed, ex- clusive of the time during which the negotiations were pending.^^a And relief was given, on the ground of accident and mistake, against a forfeiture for failure to insure, when the tenant 's agent sought to renew the insurance, but the insurer made the policy payable to a creditor of the lessee instead of to the la>ndlord, as required by the lease, and neither the tenant nor the agent knew of this change, and both intended in good faith to comply with the provision of the lease in this respect.^^^ Upon the same ground, relief was given against a forfeiture for breach of a condition against making such a noise, while preparing the prem- ises for occupation, as to disturb performances in the landlord's theatre on the adjoining premises, where the tenant's employee, while testing the wall, though told to be careful as to noise, drove a chisel through the wall for about a minute, it not having oc- 841 See ante, § 194 1 (3). cient time for its importation, and a In Lilley v. Fifty Associates, 101 threatened re-entry for nonpayment Mass. 432, it was decided that where of rent would be relieved against on the yearly rent reserved in a lease the ground, as stated, that the at- for a thousand years was "ten tons tempt to enforce the forfeiture was of Russia Old Sables iron," and the unjust and inequitable. equivalent had been accepted in cash 342 Young v. Ellis, 91 Va. 297, 21 for forty years, and for six years S. E. 480. such iron had not been imported 343 Hughes v. Metropolitan R. Co., for the market, a notice dated De- 2 App. Cas. 439. cember 12th, that rent due March 344 Mactier v. Osborn, 146 Mass. 1st must be paid in iron, was un- 399, 15 N. E. 641, 4 Am. St. Rep. 323. reasonable, this not giving suffi- 1412 FORFEITURE OF LEASEHOLD. | I94 curred to him that a performance was going on at the time.^^s But where a breach of a covenant against subletting without con- sent was due to forgetfulness on the part of the tenant's agent that the landlord's assent was required, the court refused to grant relief, for the reason either that this was not a ''mistake" within the meaning of the rule, or that, if a mistake, it was due to negligence for which the tenant was responsible.^^^ Relief on the ground of accident and surprise was given in one case against a forfeiture for nonrepair within three months after notice, where it appeared that, out of twenty-two items of repair, twenty had been proceeded with and fourteen completed, that the tenant had honestly endeavored to make the repairs, and that they had, in part, been delayed by the weather.^^"^ (3) Nonpayment of money. In a court of equity, a clause of re-entry for nonpayment of rent is regarded as intended only to secure the payment of the rent, and such a court will, ordinarily at least, upon the payment of rent and of costs and expenses, relieve against the forfeiture and continue the tenant in the pos- session.348 The right of the tenant to such relief in equity, appar- ently already well established,^^^ was recognized and confirmed by the statute of 4 Geo. 2, c. 28, §§ 3, 4, which imposed certain con- ditions as to the payment into conrt, by the tenant seeking relief, of the amount of the rent claimed and of the costs in the eject- ment suit.350 This statute also required that a bill for equitable s4-5Lundin v. Schoeffel, 167 Mass. Co. v. Wakefield, 72 Wis. 204, 39 N. 465, 45 N. B. 933, 57 Am. St. Rep. W. 136, 1 L. R. A. 178; Sheets v. 472. Selden, 74 U. S. (7 Wall.) 416, 3^6 Barrow v. Isaacs [1S91] 1 Q. B. In Fleming v. Fleming Hotel Co., 417. 69 N. J. Eq. S^^ei Atl. 157, it was 3*7 Bargent v. Thomson, 4 Giff. 473, held that, a receiver having been per Stuart, V. C. And see Bam- appointed for the lessee, the equity ford V. Creasy, 3 Giff. 675. court would not grant a petition of 348 Wadman v. Calcraft, 10 Ves. the lessor seeking a forfeiture of the Jr. 67; Howard v. Fanshawe [1895] lease until it appeared that the re- 2 Ch. 581; Abrams v. Watson, 59 ceiver was unable or unwilling to Ala. 524; Wilson v. Jones, 64 Ky. pay the rent. (1 Bush) 173; Mactier v. Osborn, 349 See Taylor v. Knight, 4 Vin. 146 Mass. 399, 15 N. B. 641, 4 Am. Abr., Chancery (Y) pi. 31; Doe d. St. Rep. 323; Hagar v. Buck, 44 Vt. Jersey v. Smith, 7 Price, 281, 326. 285, 8 Am. Rep. 368; Horton v. New 350 See Bowser v. Colby, 1 Hare, York Cert. R. Co., 12 Abb. N. C. 30, 109; Howard v. Fanshawe [1895] 2 102 N. Y. 697; Sunday Lake Min Ch. 581. » jg^ UNDER EXPRESS CONDITION. 1413 relief be filed within six months after the execution on the judg- ment in ejectment, a failure to do this barring all relief, other than by writ of error. The above statute also provided that if the tenant at any time before trial in the ejectment should pay or tender the rent and costs, all further proceedings in the ejectment should cease. Even before this statute, it had been the practice of the court of law in which the ejectment was pending thus to relieve the tena^nt upon payment of the rent at any time before exeeution,^" and the effect of the statute was to restrict such relief in the ejectment suit to the time before trial.^ss The fact that the statute 4 Geo. 2, c. 28, above referred to, provides in terms for relief only when the landlord's right of re-entry is enforced by action of ejectment, has been regarded as not excluding relief when the landlord, instead of maintaining ejectment, makes an actual re-entry on the premises.s^sa In a number of states there are statutory provisions enabling the tenant to obtain relief from a forfeiture for nonpayment of rent by paying the rent and costs, either in the proceeding brought to enforce the forfeiture, or by a separate proceeding in equity .^sa The right of the tenant to obtain a stay of the former pro- sBiGregg'sCase, 2 Salk. 59G; Phil- rent and costs, or mortgagee may lips V Doelittle, 8 Mod. 345; Smith protect his interest by paying rent, V Parks 10 Mod. 383; Goodtitle v. costs and charges within three Holdfast', 2 Strange, 900. months after judgment for posses- 352 See Roe d. West v. Davis, 7 sion) ; Neiv Jersey, 2 Gen. St. p. East 363- Doe d. Harris v. Masters, 1916, §§ 7, 8 (Lessee or person claim- 2 Barn & C 490. i^S under him may file bill in equity 352a Howard v. Fanshawe [1895] for relief, but not more than six 2 f-,^ gg-j^ months after execution. Same as 353 7Z?tnots, Kurd's Rev. St. 1905, c. English statute); New Yorlc Code 80 § 4 (May pay rent in arrear and Civ. Proc. § 1508 (Substantially costs before judgmen/ or before ex- same as Minnesota) ; North Carolina ecution of writ of posi^ession. or may Revisal 1905, § 2007 (Tenant may obtain relief within six months by tender or pay into court, during the bill in equity) ; Minnesota Rev. action, the rent and costs) ; Oregon, Laws 1905 § 3328 (At any time be- Bell. & C. Codes, § 338 (Substantial- fore possession delivered to plain- ly same as North Carolina); Yir- tiff on recovery by him, tenant may ginia Code 1904, §§ 2796, 2800 (Ten- be restored to possession on paying ant or his mortgagee may pay in- rent, interest and costs); Missouri terest and costs, or file a bill in Rev' St 1899, §§ 4120, 4122 (Tenant equity for relief within twelve may put an end to proceedings by months) ; West Virginia Code 1906, tendering or paying into court the §§ 3410-3413 (Same). 1414 FORFEITURE OF LEASEHOLD. § 194 eeeding by the making of such payment has been recognized even without reference to any statute, in this country as well as in Sngland.354 A tender of the rent will be as effectual to entitle the tenant to relief as would payment, provided, it seems, the tender is kept good.2^' The court may occasionally refuse to relieve against a for- feiture even for nonpayment of rent. For instance, relief will not be given in case of forfeiture for nonpayment of rent, if the tenant has been guilty of breach of other covenants for which a right of re-entry is given, and against which equity Avill not relieve,356 nor if the restoration of the tenant to the undisturbed possession of the premises will endanger the rights of the land- lord,^^'^ nor if the landlord or other parties interested cannot be put in the same position as before.^^^ And in one case, where re- lief was sought after the expiration of the term, in order that the tenant might avail himself of a covenant for renewal, it was decided that even if equity would ever relieve after the expira- tion of the term, it would not do so in that case, as there were circumstances of fraud which would preclude enforcement of such covenant.^^^ While it is ordinarily necessary that the tenant, in order to obtain relief from forfeiture for nonpayment of rent, should pay or tender to the landlord the rent due, or pay it into court,^^° SI54 Atkins v. Chilson, 52 Mass. (11 Bowser v. Colby, 1 Hare, 109; Wad- Mete.) 112; Planters' Ins. Co. v. man v. Calcroft, 10 Ves. Jr. 67. Dlggs, 67 Tenn. (8 Baxt.) 563; 35- Sunday Lake Mln. Co. v. Wake- Abrams v. Watson, 59 Ala. 524, and field, 72 Wis. 204, 39 N. W. 136, 1 ante, note 351. L. R. A. 178. 355 Chapman v. Kirby, 49 111. 211; S58 stanhope v. Haworth, 3 Times North Chicago St. R. Co. v. Le Grand Law R. 34. Co., 95 111. App. 435; Burnes v. Mc- 359 Coventry v. McLean, 21 Ont. Cubbin, 3 Kan. 222, 87 Am. Dec. App. 176. Compare ante, at note 468' Lewis v. City of St. Louis, 69 339. See, also, as to circumstances Mo. 595; City of Carondolet v. Wol- under which equity might not re- fert, 39 Mo. 305; Wacholz v. Gries- lieve, citations in note to Maginnis graber, 70 Minn. 220, 73 N. W. 7. In v. Knickerbocker Ice Co., 69 L. R. the last cited case it was held that A. at p. 833. This note contains a the landlord was liable in damages full collection of authorities upon If he forcibly dispossessed the ten- the subject of equitable relief ant after tender of the rent, al- against forfeiture of an estate. though he was, under the statute, sco o'Mahony v. Dickson, 2 Schor entitled to be restored to possession, ales & L. 400. 356 Nokes V. Gibbon, 3 Drew. 693; § 194 UNDER EXPRESS CONDITION. 1415 this was in one case dispensed with where the landlord was in- debted to the tenant in more than the amount of the arrears of rent,36i and in another where the dealings between the parties were so complicated that an account could not be taken at law, and the tenant filed a bill in equity for an accounting and to have the balance applied on the rent.^^^ In several cases relief has been given against forfeiture for non- payment of taxes, on the theory that the clause of re-entry is, as in the case of the rent, intended merely to secure payment.^^^'"' Relief has, however, been refused when the tenant had allowed the taxes for several years to be in arrear, the property had been sold for taxes, and he had failed to redeem from the sale.^e^ And generally, it appears, he is not entitled to relief after the land has been sold for taxes, in the absence at least of a showing that he allowed the property to go to sale through accident or mistake.^os The fact that the tax sale might, upon investigation, prove to be invalid, does not give him a right to relief in such a case.^sa A court having jurisdiction of the parties may give relief, even though the premises are situated in another state, and it can con- sequently not put the tenant in possession.^sT (4) Persons in favor of and against whom relief given. Relief 361 Abrams v. Watson, 59 Ala. 524. the landlord owed the tenant more And see Sheets v. Selden, 74 U. S. than the amount of the rent. (7 Wall.) 416, where it is said that 362 O'Connor v. Spaight, 1 Schoales the tenant should have tendered the & L. 305. And see Beasley v. Darcy. difference between the rent due and 2 Schoales & L. 403. what he claimed to be due from 363 Giles v. Austin, 62 N. Y. 4S6; the landlord. But in O'Mahony v. Garner v. Hannah, 13 N. Y. Super. Dickson, 2 Schoales & L. 400, it was Ct. (6 Duer) 262; Planters Ins. Co. decided that if the question of the v. Diggs, 67 Tenn. (8 Baxt.) 563; accounts is not too complicated to be Abrahams v. Tappe, 60 Md. 317 tried at law, and consequently could (semble); Buckley v. Beigle, 8 Ont. be brought forward in the action 85. of ejectment to enforce the forfeic- sei Bacon v. Park, 19 Utah, 246, 57 ure, a bill did not lie by the tenant Pac. 28. for an account and to be restored to 365 Gordon v. Richardson, 185 possession on payment of what Mass. 492, 70 N. E. 1027, 69 L. R. might appear due, but that he must A. 867. bring the rent and costs into court. see Kann v. King, 204 U. S. 43, 27 And in Faylor v. Brice, 7 Ind. App. Sup. Ct. 213. 551, 34 N. E. 833, it was decided that 367 Sunday Lake Min. Co. v. Wake- a forfeiture for nonpayment of rent field, 72 Wis. 204, 39 N. W. 136, 1 L. was not prevented by the fact that R. A. 178. 1416 FORFEITURE OF LEASEHOLD. § 194 may be granted in favor of an assignee of the original lessee, whether the assignment is absolute or by way of mortgage,368 and also in favor of a subtenant,^*'^ but a subtenant apart cannot ob- tain relief as to his part only, but he must pay all the arrears of rent due on the whole premises.^"" A creditor of the tenant, hav- ing a judgment lien against the property, has also been granted relief against a forfeiture incurred by the tenant.^ '^^ Relief may be granted against one to whom the lessor has trans- ferred the reversion after the act of forfeiture, to the same ex- tent as against the lessor himself, since the rights of the tenant in this regard cannot be affected by such a transfer.^'^^ It has been held that under a statute giving a right of redemp- tion to a mortgagee of the leasehold as well as to the tenant, and providing that he must exercise this right within six months after execution on the judgment in ejectment, the six months does not begin to run against a mortgagee upon a merely nominal execution of the writ by notification to the tenant, without any open and notorious change of possession.^^s S68 Doe d. Whitfield v. Roe, 3 under a statute, but the court ex- Taunt. 40-2; Newbolt v. Bingham, 72 pressed the opinion that the lessor Law T. (N. S.) S52. had a common-law right thereto. 369 Berney v. Moore, 2 Ridg. App. 872 Abrams v. Watson, 59 Ala. 524; 310. Hagar v. Buck, 44 Vt. 285, 8 Am. 370 Webber v. Smith, 2 Vern. 103. Rep. 368. 371 Corning v. Beach, 26 How. Pr. 873 Newell v. Whigham, 102 N. Y. (N. Y.) 289. The relief was granted 20, 6 N. E. 673. CHAPTER XX. NOTI€E TO QUIT. § 195. General -^cmsiderations. 196. Particular classes of tenancies. a. Tenancy for years. b. Tenancy at ■will. c. Periodic tenancies. d. Tenancy at sufferance. 197. Waiver or modification of requirement. 198. By and to whom notice to be given. 199. Form and language of notice. 200. Date of termination of notice. 201. Computation of period of notice. 202. Waiver of defects. 203. Service of notice. 204. Effect of giving of notice. 205. Withdrawal or waiver of notice. § 195. Greneral considerations. The expression "notice to quit" refers to the notice which is, by law, in certain cases, necessary to be given by one party to the relation of landlord and teoiant, to the other party thereto, in order that the tenancy may be terminated.^ Though the ex- pression in form would properly apply only to a notice by the landlord to the tenant, since the tenant cannot well notify the landlord "to quit" premises which are in the former's possession, it is nevertheless applied to a notice by the tenant of his inten- tion to quit the possession. In a number of states there is a statutory provision authorizing the landlord to terminate the tenancy, upon the tenant's default in the payment of rent, by giving him a notice of a prescribed 1 As to the nature of a notice to Bellman, 4 Exch. Mv. 201. quit, see the opinions in Ahearn v. 1418 NOTICE TO QUIT. § I95 number of days to that effect. The subject of such notice, in effect to enforce a forfeiture for the tenant's default, is considered elsewhere. 2 A notice to quit is also to be distinguished from the demand for possession which, by the common law, the landlord must give, in tlie case of a tenancy at will, unless he has otherwise determined the will, before bringing an action of ejectment.^ Likewise, it is to be distinguished from the notice or demand for possession which is ordinarily, by statute, required as a condition prece- dent to the maintenance by the landlord of the statutory proceed- ing to recover possession at the end of the term,'* and which is frequently referred to as a "notice to quit." The notice necessary to be given by the landlord or the tenant, in order to exercise an option, expressly given by the lease, to ter- minate the tenancy before the end of the term named, has been previously referred to.^ Occasionally the instrument of lease contains a provision for a renewal upon the giving of a certain notice by the tenant, or for an extension of the term in the absence of a notice to the contrary from one party or the other. Such a notice will be considered in connection with stipulations for re- newal.® There is no necessity of a notice to quit, ordinarily, unless the relation of landlord and tenant exists between the parties. A mere trespasser cannot claim such a notice,''' and so one who enters as tenant cannot assert a right to a notice from a person claiming by title paramount, he being a mere trespasser as to such person.'^" 2 See post, § 274 d (4). * See post, § 274 a (3). 3 See ante, § 13 b, at notes 403- b See ante, § 12 e (4), f, 405. The courts do not always so e See post, § 223. distinguish however. See e. g., Den ^ Kilburn v. Ritchie, 2 Cal. 145, 56 d. Mackey v. Mackey, 2 N. J. Law Am. Dec. 326; Petty v. Malier, 54 (1 Penning.) 400; Chicago, B. & Q. Ky. (15 B. Mon.) 606; Jackson v. R. Co. V. Knox College, 34 111. 195; Rogers, 1 Johns. Cas. (N. Y.) 33; Murray v. Armstrong, 11 Mo. 209, Jackson v. Robinson, 4 Wend. (N. 47 Am. Dec. 151; Bedford v. McBl- Y.) 436; Jackson v. Deyo, 3 Johns, herron. 2 Serg. & R. (Pa.) 48, in (N. Y.) 422, 3 Am. Dec. 509; Doe d. which cases, by the statement that Borden v. Bell, 53 N. C. (8 Jones the tenant is entitled to notice to Law) 294; Neppach v. Jordan, 15 quit before the bringing of an actioii Or. 308, 14 Pac. 353; Doe v. John- against him for possession is ap- ston, 2 McLean, 323, Fed. Cas. No. parently meant that a demand for 3,958. possession must be first made. 7a Keech v. Hall, 1 Doug. 21; Doe 196 TENANCY FOR YEARS. 141? And a mere licensee or servant is, usually at least, not entitled to notice.^ § 196. Particular classes of tenancies. a. Tenancy for years. At common law a notice to quit is unnecessary in order to terminate a tenancy for years at the ex- piration of the term named in the lease, each party being charged with knowledge of the time of such expiration.^ In a number of states it is expressly provided by statute that no notice shall be necessary to terminate such a tenancy at the time named in the lease.io In a few states, however, the statutes seem to require d. Pietland v. Hilder, 2 Barn. & Adol. 782; Roosevelt v. Hungate, 110 111. 595; Locke v. Coleman, 18 Ky. (2 T. B. Mon.) 12, 15 Am. Dec. 118; Thackray v. Cheeseman, 18 N. J. Law (3 Har.) 1; Eberwine v. Cook, 74 Ind. 377. 8 Doe d. Hughes v. Derry, 9 Car. & P. 494; Mayhew v. Suttle, 4 El. & Bl. 347; Aldin v. Latimer Clark, Muirhead & Co. [1894] 2 Ch. 437, 448; Wilson v. Tavener [1901] 1 Ch. 578; Johns v. McDaniel, 60 Miss. 486; Messerly v. Mercer, 45 Mo. App. 327; Doyle v. Gibbs, 6 Lans. (N. Y.) 180; Jackson v. Sample, 1 Johns. Cas. (N. Y.) 231. In Lowe v. Adams [1901] 2 Ch. 598, it was held that to terminate a right of shooting over land, an "incorporeal hereditament," held under a yearly rent, a six months' notice was not necessary, but merely a reasonable notice. 9 Cobb V. Stokes, 8 East, 358; Mes- senger V. Armstrong, 1 Term R. 53; Canning v. Fibush„77 Cal. 196, 19 Pac. 376; Hihn v. Mangenberg, 89 Cal. 268, 26 Pac. 968; McKissick v. Ashby, 98 Cal. 422, 33 Pac. 729; Wal- ker V. Ellis, 12 111. 470; Secor v. Pestana, 37 111. 525; Pierson v. Tur- ner, 2 Ind. 123; Hamit v. Lawrence, 9 Ky. (2 A. K. Marsh.) 366; Stock- well V. Marks, 17 Me. 455, 35 Am. Dec. 266; Preble v. Hay, 32 Me. 456; Dorrell v. Johnson, 34 Mass. (17 Pick.) 266; Engels v. Mitchell, 30 Minn. 122, 14 N. W. 510; Waldo v. Jacobs, 152 Mich. 425, 15 Det. Leg. N. 316, 116 N. W. 371; Young v. Smith, 28 Mo. 65, 75 Am. Dec. 109; Mastin V. Metzinger, 99 Mo. App. 613, 74 S. W. 431; Williams v. Mershon, 57 N. J. Law, 242, 30 Atl. 619; Allen v. Jaquish, 21 Wend. (N. Y.) 628; Cox V. Sammis, 57 App. Div. 173, 68 N. Y. Supp. 203; Den d. Stedman v. Mcintosh, 26 N. C. (4 Ired. Law) 291, 42 Am. Dec. 122; McGregor v. Rawle, 57 Pa. 184; Ashhurst v. East- ern Pennsylvania Phonograph Co., 166 Pa. 357, 31 Atl. 116; Logan v. Herron, 8 Serg. & R. (Pa.) 459. In Weller v. Carnew, 29 Out. 400, it is decided that an express stip- ulation for such a notice, in the case of a tenancy for years, is in- valid. But see Wilcox v. Montour Iron & Steel Co., 147 Pa. 540, 23 AtL 840, where, on a construction of par- ticular language looking to a pos- sible renewal from year to year and providing for a notice to quit, the latter provision was held to ap- ply to the original term as well as to the renewal tenancy. 10 Arizona Rev. St. 1901. § 2694; Colorado, Mills' Ann. St. § 1976; Dis- 1420 NOTICE TO QUIT. § 196 a notice in order to terminate the tenancy at tlie end of the term, even though the duration thereof is clearly defined by the lease.^* If a tenancy for years is to terminate upon some contingency, that is, if there is a "special" or "conditional" limitation to J tat effect, the tenancy terminates upon the happening of such con- tingency, without any notice by one party to the other.12 Such, triet of ColumUa Code 1901, § 1218; exceeding in any case three months nUnois, Kurd's Rev. St. 1905, c. 80, before the end of the term). See, § 12 (see Knecht v. Mitchell, 67 111. also, Wolfer v. Hurst, 47 Or. 156, 86); Indiana, Burns' Ann. St. 1901, 80 Pac. 419, 82 Pac. 20, construing § 7094; lowaCo6.Q 1897, § 2991; Kan- the Oregon statute in this respact. SOS Gen, St. 1905, § 4059; Kentucky In Reccius v. Columbia Finance & St. 1903, § 2293; Mississippi Code Trust Co., 27 Ky. Law Rep. 880, 86 1906, § 2882; Missouri Rev. St. 1899, S. W. 1113, a tenant from month to § 4111; Oklahoma Rev. St. 1903, § month is regarded as a tenant tor 3328; South Carolina Cvf. Code 1902, a month for the purpose of the ap- § 2415; Virginia Code 1904, § 2785; plication of such a statute. Washington Ball. Ann. Codes & St. In Pennsylvania the courts some- § 4570; West Virginia Code 1906, § times speak as if a notice to quit 3398, were necessary to terminate a ten- 11 Delaware Rev. Code 1893, p. 866, ancy for years, the notice to be § 4 (If notice to quit not given by given three months before the ex- landlord or tenant, in case of a piration of the tenancy. But the term of one or more years, three notice thus referred to is that re- months before the end of the term, quired by Act Dec. 14, 1863, as a lease renewed for another year. At condition precedent to a proceeding page 772, summary proceedings are to recover possession, which the authorized against the tenant pro- statute requires to be given three vided the landlord gives three months before the end of the terra, months' notice before end of term). See Rich v. Keyser, 54 Pa. 86, 93 See Thomas v. Black, 8 Houst. Am. Dec. 675; Snyder v. Carfrey, 54 (Del.) 507, 18 Atl. 771; Bonsall v. Pa. 90. McKay, 1 Houst. (Del.) 520; Rob- 12 Scott v. Willis, 122 Ind. 1,22 erts V. Grubb, 5 Houst. (Del.) 461. N. E. 786; Clark v. Rhodes, 79 Ind. lOinois, Hurd's Rev. St. 1905, c. 80, 342; People v. Schackno, 48 Barb. § 6 (Tenancies less than one year). (N. Y.) 551; Den d. Stedman v. Mc- See Dunne v. Trustees of Schools, Intosh, 26 N. C. (4 Ired. Law) 291, S9 111. 578. Missouri Rev. St. 1899, 42 Am. Dec. 122; Sprague v. Quinn, § 4110 (One month's notice in case 108 Mass. 553; Doe d. Waithman v. of tenancy for le^ than one year); Miles, 1 Starkie, 181; Doe d. Col- Rhode Island Gen. Laws 1896, c. 269, naghi v. Bluck, 8 Car. & P. 464. See § 4 (Tenants by parol for any term ante, § 12 d. less than a year shall quit at the In Babcock v. Albee, 54 Mass. (13 end of the term upon notice in writ- Mete.) 273, it was decided that if iBg from the landlord given at a landlord, after terminating the least half the period of the term, not tenancy by notice, told the tenant . ^qq tenancy at will. 1421 for instance, is the ease when the tenancy is to cease upon the ces- sation of the use of the premises for a certain purpose,!^ or upon the termination of the relation of employer and employee between the parties.! 4 But occasionally, as before stated,!^ there is an option in the landlord or tenant to terminate the tenancy, at any time, or at a time or on a contingency named, and any re- quirement of the lease as to a notice of the exercise of such an option must be strictly complied with.ie Even when ther3 is no provision as to notice of the exercise of the option, the tena,nt has been held to be entitled to a reasonable notice thereof before being compelled to vacate.^'' b. Tenancy at will. By the English cases it has always been assumed that a tenancy at will may be terminated immediately by notice, without allowing the tenant any period of time between the receipt of the notice and the time for him to quit thereunder,is though his right to re-enter for the purpose of securing crops planted by him, and also his right to enter, within a reasonable time after the termination of the tenancy, in order to remove his goods, have always been recognized.i^ Iq this country, likewise, Tt has not infrequently been decided that the landlord may de- mand immediate possession.20 Iq gome jurisdictions, however, that lie miglit remain "a while is See ante, § 12 e, f. longer," till he could sell off his is See ante, §§ 12 e (4), 12 f. at goods, this made the tenant one at notes 265-270. sufferance, or it constituted a demise 17 Shaw v. Hoffman, 25 Mich. 162. for a term, understood by the parties And see Goodright v. Richardson, 3 to be fixed by the purnose to be ac- Term R. 462. complished, in neither of which is See Doe d. Tomes v. Chamber- cases was the tenant entitled to a laine, 5 Mees. & W. 14; Doe d. Hull new notice. It may be remarked v. Wood, 14 Mees. & W. 6S2; Doe d. that he could not have been a ten- Price v. Price, 9 Bing. 356. ant at sufferance, since his contin- 19 See post, § 251 c (3), 255 a, ued possession was by permission, note 21. As to regarding him as a tenant for 20 Blatchley v. Coles, 6 Cola 82; a term, see ante, § 12 c (2) (b). Herrell v. Sizeland, 81 111. 457; Cross 13 Horner v. Leeds, 25 N. J. Law v. Campbell, 89 111. App. 489; Peters (1 Dutch.) 106; Creech v. Crockett, v. Balke, 170 111. 304, 48 N. E. 1012; 59 Mass. (5 Cush.) 133. Sullivan v. Enders, 33 Ky. (3 Dana) i4Hackett v. Marmet Co., 3 C. C. 66; Grant v. White, 42 Mo. 285; A. 76, 52 Fed. 268, 17 L. R. A. 804; Moore v. Boyd. 24 Me. 242; Withers Marmet Co. v. Archibald, 37 W. Va. v. Larrabee, 48 Me. 570; Johnson v. 77S 17 S. E. 299; Grosvenor v. Johnson, 13 R. I. 467; Den d. Ham- Henry, 27 Iowa, 269. phries v. Humphries, 25 N. C. (3 1422 NOTICE TO QUIT. §196 the courts have regarded this rule as bearing with undue harsh- ness on the tenant, and have required some notice before the land- lord can demand posseosion.21 Occasionally it has been said that six months ' notice is necessary, on the theory, which is now gener- ally repudiated,22 that all tenancies at will are to be regarded as tenancies from year to year.^s In other cases the length of notice necessary is regarded as dependent on the particular circum- stances of the case, rendering a greater or less time requisite for the proper removal of the tenant's crops and other property.^-' "In a number of states there are statutory provisions expressly Ired. Law) 362; Den d. Howell v. Howell, 29 N. C. (7 Ired. Law) 496. 21 Cody V. Quarterman, 12 Ga. 386; Sloat V. Rountree, 87 Ga. 470, 13 S. E. 637 (semble). In Rich v. Bol- ton, 46 Vt. 84, 14 Am. Rep. 615, it is said (per Redfield, J.) that, though six months' notice is not necessary as in the case of tenan- cies from year to year, a reasonable notice is necessary, and, "where emblements are ■ in question, such notice as shall protect the tenant in his rights." In Massachusetts the decisions previous to the passage of the stat- ute as to the necessity of notice were not in entire harmony. Ellis V. Paige, 18 Mass. (1 Pick.) 43; Coffin V. Lunt, 19 Mass. (2 Pick.) 71, and note; Howard v. Merriam, 59 Mass. (5 Cush.) 563. And see Leavitt v. Leavitt, 47 N. H. 329. And this was likewise the case in New York. See Ja.ckEon v. Bryan, 1 Johns. 322; Phillips v. Covert, 7 Johns. 1; Jackson v. Laughhead, 2 Johns. 75; Jackson v. Green, 4 Johns. 186; Jackson v. Miller, 7 Cov^. 747; Lamed v. Hudson, 60 N. Y. 102. In the latter state the courts seem, be- fore the statute, to have tended to regard a tenancy at will as a ten- ancy from year to year, for the pur- pose of notice at least. 22 See ante, § 14 b (2) (c). 23 Clark v. Smith, 25 Pa. 137; Den d. McEowen v. Drake, 14 N. J. Law (2 J. S. Green) 523; Squires v. Huff, 10 Ky. (3 A. K. Marsh.) 17. The opinion of Putnam, J., in Ellis v. Paige, 18 Mass. (2 Pick.) 71, note, 11 Am. Dec. 146, cites several authori- ties, from the Year Books down, to the effect that a six months' notice is necessary, but, as shown by Red- field, J., in Rich v. Bolton, 46 Vt. 84, 14 Am. Rep. 615, these appear to have all been cases of a holding from year to year, or to have in- volved merely the question of em- blements. 24 In Amsden v. Floyd, 60 Vt. 386, 15 Atl. 332, it is said: "A tenant has the right to a reasonable time to vacate the premises, depending upon the circumstances of the case. Under a lease of agricultural lands, he may be entitled to emblements, and can remain long enough after the lease determines to gather the crops that he has sown, which may be for the greater part of the year. In a lease of buildings, the tenant, when the lease ends, may have noth- ing in them, and so would need no time to vacate them; in a case like the one at bar, where the premises are used for storing heavy machin- ery, the lessee should have reason-. 196 TENANCY AT WILL. 1423 requiring a notice of a certain length in order to terminate a ten- ancy at will, the period named being ordinarily either one or three months,^^ with a provision, occasionally, that if the rent is payable at intervals less than the period named for the notice, the notice shall be of the length of such intervals.^^^ Some of the statutes are so phrased as to require a notice to be given only by the landlord, thus by implication authorizing the tenant to ter- minate the tenancy immediately, without formal notice, as at com- mon law,^''' while others expressly provide for notice by either party desiring to terminate the tenancy .^s In two states the statutes provides that the tenant shall quit able time to procure other accomoda- tions, and remove his property. A case might arise where it would be necessary to erect buildings; store- houses might be plenty in the vicin- ity, or, there might be none. No rule can be laid down to apply to all cases." See, to the same effect, Wheeler v. Wheeler, 77 Vt. 177, 59 Atl. 842. 2^ California Civ. Code, § 789 (One month) ; Colorado, Mills' Code, § 1976 (Three days) ; Delaware Rev. Code 1893, p. 773 (Three months) ; District of Cohimbia Code 1901, § 1220 (Thirty Days); Georgia Code 1895, § 3133 (Two months' notice by landlord; one month's notice by ten- ant) ; Idaho Civ. Code 1901, § 2373 (One month); Indiana, Burns' Ann. St. 1901, § 7088 (One month); Iowa Code 1897, § 2991 (Thirty days); Kansas Gen. St. 1905, § 4054 (Thirty days) ; Ilaine Rev. St. 1903, c. 93, § 2 (Thirty days); Massachusetts Rev. Liws 1902, c. 129, § 12 (Three months); Michigan Comp. Laws 1897, § 9257 (Three months) ; ilfm- nesota Rev. Laws 1905, § 3332 (Three months) ; Missouri Rev. St. 1899, § 4110 (One month) ; Montana Rev. Codes 1907, § 4502 (One month) ; New Jersey Acts 1903, c. 13, § 3 (Three months) ; Neio York Real Prop. Law, § 198 (Thirty days) ; North Dakota Rev. Code 1905, § 4782 (One month); Okla- homa Rev. St. 1903, § 3323 (One month) ; Oregon, Bell. & C. Codes, § 5390 (Three months); South Dakota Rev. Civ. Code, § 2G2 (One month); Wisc07isin Rev. St. 1898, § 2183 (One month). 26 See statutes, above cited, of Iowa, Kansas, Massachusetts, Michi- gan, Minnesota, Oregon, Wisconsin. 27 See statutes, above cited, of California, Indiana, Missouri, Mon- tana, New York, North Dakota, Okla- homa, South Dakota. 28 See statutes, above cited, of Delaware, District of Columbia, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Oregon, Wis- consin. Also Whitney v. Gordon, 55 Mass. (1 Cush.) 266; Walker v. Fur- bush, 65 Mass. (11 Cush.) 366, 59 Am. Dec. 148; Batchelder v. Batchel- der, 84 Mass. (2 Allen) 105; Thomas V. San ford Steamship Co., 71 Mo. 548; Huntingdon v. Parkhurst, 87 Mich. 38. 49 N. W. 597, 13 L. R. A. 83, 24 Am. St. Rep. 146; Sanford v. Johnson, 24 Minn. 172, applying such a provision. 1424 NOTICE TO QUIT. § 196 on notice in writing from the landlord upon "the day named therein, "29 and such a statute has been construed as requiring not a "reasonable" notice, but a notice of a day merely.^^ In these states it is also provided that the tenant may terminate the tenancy "by notice in writing in the same manner as the lessor, "^i in effect requiring such a notice from the tenant in case he de- sires to terminate.^2 In construing the statutes requiring a notice of a certain length to terminate a tenancy at will, the courts of two or three states have decided that they require a notice to terminate the tenancy in those eases only in which, at common law, the owner or the tenant, desiring to terminate the tenancy, could do so by merely indicating his will to that effect, either by an express notice or by doing acts upon the land of such a character as to show his will, and that a tenancy at will may, as before the statute, be ter- minated by acts which effect such termination, not because they indicate a wish to terminate the tenancy, but because they are regarded as inconsistent with the continued existence of such a tenancy .23 In other words, the statute "is limited to the case of determining the will, and terminating the tenancy, by the act of the party desirous of doing so," while it "leaves all other cases of determining the estate by act of law, as they stood be- fore. "^^ Accordingly it has been decided that, in spite of such a statute, the tenancy is terminated, without previous notice, by the act of the landlord in conveying or leasing the land,^^ and this though the conveyance or lease is merely colorable, made for the purpose of avoiding the statute.^e Likewise, it may be ter- 29 New Hampshire Pub. St. 1901, apply to a tenancy at will arising c. 246, § 2; Rhode Island Gen. Laws under the provisions of the statute 1896 c. 269, § 1. of frauds of that state. See Esty v. sopayton v. Sherburne, 15 R. I. Baker, 50 Me. 325, 79 Am. Dec. 616; 213 2 Atl. 300. Seavey V. Cloudman, 90 Me. 536, 38 31 Neto Hampshire Pub. St. 1901, Atl. 540, commenting on Young v. c. 246, § 6; Rhode Island Gen. Laws Young, 36 Me. 133. 1896 c. 269, § 5. st Howard v. Merriam, 59 Mass. (5 32 Chapman v. Tiffany, 70 N. H. Cush.) 563. 249 47 Atl. 603. ss Howard v. Merriam, 59 Mass. (5 33 Howard v. Merriam, 59 Mass. (5 Cush.) 563; Seavey v. Cloudman, 90 Cush.) 563; Seavey v. Cloudman, 90 Me. 536, 38 Atl. 540. Me. 536, 38 Atl. 540; Leavitt v. Lea- so Curtis v. Galvin, 83 Mass. (1 vitt, 47 N. H. 329. In Maine it Allen) 215; Dunshee v. Grundy, 81 seems that a different rule would Mass. (15 Gray) 314. § 196 TENANCY AT WILL. 1425 m mated, without notice, by the act of the tenant in transferring his interest,37 or in asserting a title adverse to that of the land- lord's And the death of either party will, under this view, no doubt terminate the tenancy immediately, as at common law.'^ But the tenancy is not terminated by the act of the tenant in relinquishing possession without the statutory notice.'*^ It has oc- casionally been stated, without reference being made to the statutory requirement of notice, that the burning of the building on the premises would effect a termination of the tenancy.^i The statutory requirement of notice does not apply, it has been held, if it is expressly stipulated that the tenancy shall terminate upon a certain contingency, subjecting it to a "special limita- tion. "^2 37 Cooper V. Adams, 60 Mass. (6 Gush.) 87; King v. Lawson, 98 Mass. 309. 38 Applet-Oil V. Ames, 150 Mass. 34, 22 N. E. 69, 5 L. R. A. 206. And see Simpson v. Applegate, 75 Cal. 342, 17 Pac. 237, 7 Am. St. Rep. 177; Amick V. Brubaker, 101 Mo. 473, 14 S. W. 627. 39 See Seavey v. Cloudman, 90 Me. 536, 38 Atl. 540. 40 Taylor v. Tuson, 172 Mass. 145, 51 N. E. 462; Batchelder v. Batchel- der, 84 Mass. (2 Allen) 105. 41 In O'Brien v. Cavanaugh, 61 Mich. 368, 28 N. W. 127, 1 Am. St. Rep. 589. it is said, without discus- sion, that "the tenancy ceased when the property was destroyed and the tenant ousted." There, however, the contest was not between the owner and the tenant. In Gould v. Thompson, 45 Mass. (4 Mete.) 224, a purchaser took possession, and afterwards, the building having been burned, he vacated the prem- ises, refused to accept a conveyance, and sued to recover payments made by him, and it was held that a ten- ancy at will was created by his per- missive possession and that this was terminated, the facts constituting "decisive evidence of the determ- ination of his will at the time of the fire, and notice thereof to the own- er." 42Hollis V. Pool, 44 Ky. (3 Mete.) 350; Corby v. McSpadden, 63 Mo. App. 648; McGee v. Gibson, 40 Ky. (1 B. Mon.) 105 (semble). As where the letting was to endure so long as the tenant kept a barber shop on the premises (Creech v. Crockett, 59 Mass. [5 Cush.] 133) or kept a good school (Ashley v. Warner, 77 Mass. [11 Gray] 43). In the latter case there was a letting by two tenants in common, and the restriction above recited was im- posed by only one of them. See, also, ante, § 13 b (5). A provision, in the case of a lease at will, that rent shall be payable monthly in advance, does not make the tenancy subject to a special lim- itation, terminating the tenancy on nonpayment of rent in advance. Elliott V. Stone, 66 Mass. (12 Cush.) 174; Sprague v. Quinn, 108 Mass. 555. L. and Ten. 90. 1426 NOTICE TO QUIT. | 196 Tlie requirement of notice may be waived,^^ as when the par- ties expressly agree that one or the other, or both, may terminate the tenancy without any notice,^'* or there may be an express stipulation for a notice of a length greater or less than that named in the statute.-*^ And, in spite of the statute, the parties may terminate the tenancy by agreement between themselves at any time, accompanied by a relinquishment and acceptance of pos- session,46 this being in technical effect a surrender. In one state the courts have refused to construe a statute, re- quiring notice to terminate the tenancy, as applying only to a termination by direct act of the party and not to a termination "by act of the law," and have decided that a transfer by the owner will not terminate the tenancy without the statutory no- tice.^^ In favor of this view is the fact that the landlord is thereby prevented from terminating the tenancy without notice by a merely colorable transfer. The fact that a tenant, in a suit against him by the la^ndlord to recover possession, asserts that he had a term of years which has not yet expired, has been held not to preclude him from also 43 See post, § 197. In Betz v. Max- tenant may terminate the lease at well, 48 Kan. 142, 29 Pac. 147, it any time" does not dispense with was decided that the recovery by notice. Paget v. Electrical Engin- the landlord of a judgment for the eering Co., 82 Minn. 244, 84 N. W. rent accruing for one rent period (a SOO. And see Batch elder v. Batch- month) after knowledge of the ten- elder, 84 Mass. (2 Allen) 105. ant's relinquishment of possession 45 May v. Rice, 108 Mass. 150, 11 and after commencement of the ac- Am. Rep. 328; B. Roth Tool Co. v. tion for rent, together with the col- Champ Spring Co., 93 Mo. App. 530, lection of such judgment, involved 67 S. W. 967; Den d. Humphries v. a waiver of the statutory require- Humphries, 25 N. C. (3 Ired. Law) ment of a thirty days' notice. In 362 (semble). this case, however, the tenancy was 46 Forbes v. Smiley, 56 Me. 174; apparently a tenancy from month Cooper v. Adams, 60 Mass. (6 Cush.) to month, rather than a tenancy at 87; Farson v. Goodale, 90 Mass. (8 will. Allen) 202. 44 Lane v. Ruhl, 94 Mich. 474, 54 47 German State Bank v. Herron, N. W. 175 (semble) ; Sullivan v. Ill Iowa, 25, 82 N. W. 430. This Enders, 33 Ky. (3 Dana) 66. So case applies in terms to a termina- ■wiiere it was agreed that the ten- tion by transfer by the landlord, ant might leave "at pleasure and but by implication it applies to pre- at a moment's notice." Davis v. vent a termination of the tenancy Murphy, 126 Mass. 143. But it has in any way without notice. been held that % prwTlsion that "the § 198 PERIODIC TENANCIES. 1427 asserting that, if he is merely a tenant at will as claimed by the landlord, he is entitled to a notice to quit.^^ c. Periodic tenancies. The English rule, that a notice of half a year is necessary in order to terminate a tenancy from year to year, has ordinarily been adopted in this country, in the absence of a statutory provision o.n the subject.'*^ In a number of the states the length of the notice is fixed by statutory enactment, it varying from one to six months. ^^ And in perhaps two states 48 Simons v. Detroit Twist Drill quired, and whether a notice is Co., 136 Mich. 592, 99 N. W. 862. reasonable is for the jury. Jones v. 49 Doe d. Flower v. Darby, 1 Term Spartanburg Herald Co., 44 S. C. 526, R. 159; Wilkinson v. Calvert, 3 C. 22 S. E. 731. P. Div. 360; Hunt v. Morton, 18 111. ^o Colorado, Mills' Code, § 1976 75; Morehead v. Watkyns, 44 Ky. (5 (Three months); Illinois, Kurd's B. Mon.) 229; Den d. McEowen v. Rev. St. c. 80. § 5 (Sixty days. See Drake, 14 N. J. Law (2 J. S. Green) Streit v. Fay, 230 111. 319, 82 N. E. 523; Hall v. Myers, 43 Md. 446; 648, 120 Am. St. Rep. 304) ; 7«(Ztana, Pugsley v. Aiken, 11 N. Y. (1 Kern.) Burns' Ann. St. 1901, § 7090 (Three 494; Den d. Jones V. Willis, 53 N. C. months); Kansas Gen. St. 1905, § (8 Jones Law) 430; Barlow v. Wain- 4055 (Thirty days) ; Michigan Comp. Wright, 22 Vt. 88, 52 Am. Dec. 79; Laws 1897, § 9257 (One year, expir- Critchfield v. Remaley, 21 Neb. 178, ing at any time) ; Mississippi Code 31 N. W. 687; Brown v. Kayser, 60 1906, § 2882 (Two months); Mis- Wis. 1, 18 N. W. 523. souri Rev. St. 1899, § 4109 (Sixty In England the rule is that if the days) ; Neiv Jersey Acts 1903, c. 13, tenancy is one that can be ended on § 3 (Three months) ; North Carolina one of the regular feast or quarter Revisal 1905, § 1984 (One month); days (Christmas, Lady day. Mid- Oklahoma Rev. St. 1903, § 3324; summer day and Michaelmas), a 2?7iO(?e JsJan(Z Gen. Laws 1896, c. 269, notice is sufficient if given on the § 3 (Three months) ; West Virginia preceding feast day, though the in- Code 1906, § 3398 (Three months); terval be less than half a year, this Virginia Code 1904, § 2785 (Three being regarded as a "customary" months if premises within city or half year. See Roe d. Durant v. town, and six months if without. Doe, 6 Bing. 574; Doe d. Bedford v. See Baltimore Dental Ass'n v. Ful- Kightley, 7 Term R. 63; Howard v. ler, 101 Va. 627, 44 S. E. 771). Wemsley, 6 Esp. 53; Doe d. Mat- in Minnesota the statutory provi- thewson v. Wrightman, 4 Esp. 5; Doe sion (Rev. Laws 1905, § 3332) that d. Harrop v. Green, Esp. 198; Morg- estates at will may be determined an V. Davles, 3 C. P. Div. 260. by either party by three months' In South Carolina, where a ten- notice in writing for that purpose, ancy "looks to the end of the cal- given to the other party, and that endar year for its termination" (see when the rent reserved is payable post, note 154), a reasonable notice at periods of less than three months before the end of the year is re- the time of such notice shall be 1428 NOTICE TO QUIT. ^196 there are decisions to the effect that no notice to terminate the tenancy at the end of any year is necessary to enable the land- lord to maintain summary proceedings against the tenant to re- cover possession.^! sufficient if it be equal to the in- terval between the times of payment, is regarded as applj'ing to estates from year to year and other periodic tenancies. See Hunter v. Frost, 47 Minn. 1, 49 N. W. 327; Grace v. Michaud, 50 Minn. 139, 52 N. W. 390. So in Oregon a tenancy from year to year is apparently regarded as within the statutory requirement as to notice to terminate tenancies at will. Roseblat v. Perkins, 18 Or. 156, 22 Pac. 598, 6 L. R. A. 257. But a different construction was put on the Wisconsin statute. Brown v. Kayser, 60 Wis. 1, 18 N. W. 523. In Washington the forcible detain- er statute making guilty of unlaw- ful detainer a tenant for an indefi- nite time, with monthly or other periodic rent reserved, who contin- ues in possession after the end of such period, if the landlord served notice on him twenty days before the end of such period, would seem, according to the construction placed upon the statute in the case of a tenancy from month to month (see post, note 54), to require only twen- ty days' notice to terminate a ten- ancy from year to year. In Pennsylvania the three months' notice previous to the end of the year, necessary to support a pro- ceeding to recover possession (post, § 274 a [3]), appears to be regarded as also sufficient to terminate the tenancy. See Dumn v. Rothermel, 112 Pa. 272, 3 Atl. 800. ei In Connecticut it was held that the English requirement of half a year's notice is superseded by the local statute giving a landlord, "in every case of holding over a right, and the remedy, to regain pcssossion in thirty days," the view being, ap- parently, that a tenant from year to year, remaining in possession after the end of one or more years, holds over within the statute. Larkin v. Avery, 23 Conn. 304. The present statute in that state as to summary proceedings provides for only ten days' notice, and, applying the prin- ciple of the above decision, no fur- ther notice is necessary, presum- ably, to terminate a tenancy from year to year. In other jurisdictions the courts have not thus regarded the summary proceeding statute as intended to change the length of notice necessary to terminate a peri- odic tenancy. In New York there is no express statutory provision as to notice in the case of a tenancy from year to year and it has been decided that the landlord may remove the tenant by summary proceedings, without previous notice, at the end of any year. Nichols v. Williams, 8 Cow. (N. Y.) 13; Park v. Castle, 19 How. Pr. (N. Y.) 29. The latter case says that the rule may be different when such a tenancy is created by a writ- ten lease. In Prouty v. Prouty, 5 How. Pr. (N. Y.) 81, it is decided thai such a tenancy is a tenancy at will within the statute requiring one month's notice. In Pugsley v. Aik- in, 11 N. Y. (1 Kern.) 494", it is said, without any qualification, that six incnths' notice is necessary, and it is so stated in 1 McAdam, Landl. & § 196 PERIODIC TENANCIES. 1429 In the case of a tenancy from quarter to quarter, month to month, or week to week, a notice of a quarter, a month, or a week, respectively, is ordinarily regarded as necessary to ter- minate it.^2 In a number of states the length of the notice neces- sary in such cases is prescribed by statute, the statute occa- sionally referring in terms to a tenancy from quarter to quarter,^^ month to month,^^ or week to week,^^ and sometimes being so Ten. (3d Ed.) 605. In Peer v. O'Leary, 8 Misc. 350, 28 N. Y. Supp. 687, there is a dictum that one month's notice is necessary. In Adams v. Cohoes, 127 N. Y. 175, 28 N. E. 25, the court apparently re- gards the tenancy there in question as a tenancy "from year to year," and yet holds that the tenancy "terminates at a fixed period," and that therefore no notice is neces- sary. In Arizona, by statute (Rev. St. 1901, § 2694), a tenancy from year to year terminates at the end of each year unless expressly extended. 52 Steffens v. Earl, 40 N. J. Law, 128, 29 Am. Rep. 214; Baker v. Kenny, 69 N. J. Law, 180, 54 Atl. 526; Anderson v. Prindle, 23 Wend. (N. Y.) 616; People v. Darling, 47 N. Y. 666; McDevitt v. Lambert, 80 Ala. 536, 2 So. 438; Stewart v. Murrell, 65 Ark. 471, 47 S. W. 130, 67 Am. St. Rep. 942; Gunn v. Sinclair, 52 Mo. 327; Prickett v. Ritter, 16 111. 96; Creighton v. Sanders, 89 111. 543; Hollis V. Burns, 100 Pa. 206, 45 Am. Rep. 379; Currier v. Perley, 24 N. H. 219. In England it has been decided that a month's notice is necessary in the case of a tenancy from month to month. Doe d. Parry v. Hazell, 1 Esp. 94; Beamish v. Cox, 16 L. R. Ir. 270. 458. In the case of a weekly tenancy, while there are dicta to the effect that a week's no- tice is necessary, it seems doubtful whether a less notice, provided it be reasonable, may not be sufficient. See Jones v. Mills, 10 C. B. (N. S.) 788; Harvey v. Copeland, 30 L. R. Ir. 412; Bowen v. Anderson [1894] 1 Q. B. 164. 53 District of ColumMa Code, § 1219 (Thirty days); Mississippi Code, 1906, § 2882 (One month, in case of holding by half year or quar- ter year). Mills' Code Colo. § 1976, providing that a six months' tenancy may be terminated by a notice of one month, presumably means a tenancy from six months to six months, since the same section expressly provides that no notice shall be required when the term "is by contract to end at a time certain." ^i Arizona Rev. St. 1901, § 2694 (Ten days); Colorado, Mills' Ann. St. 1S91, § 1976 (Ten days); Delatoare Rev. Code 1893, p. 866 (One month) ; District of ColumMa Code 1901. § 1219 (Thirty days); Illinois, Kurd's Rev. St. 1905, c. 80, § 6 (Thirty days, semble) ; Mississippi Code 1906, § 2882 (One week. See Wilson V. Wood, 84 Miss. 728, 36 So. G09); Missouri Rev. St. 1899, § 4110 (One month) ; Nevada Comp. Laws 1900, § 3827 (Ten days); New Jersey Acts 1903, c. 13, § 3 (One month); North Carolina Revisal 1905, § 1984 (Seven dnys) ; Virginia Code 1904, § 2785 (Thirty days). 1430 NOTICE TO QUIT. § 19^ framed as to apply to any periodic tenancy, or to any such ten- See, as to the Kentucky statute, Rec- strued as applying to a tenancy from cius V. Columbia Finance & Trust month to month (Simpson v. Mas- Co., 27 Ky. Lav/ Rep. 8S0, 86 S. W. son, 11 Misc. 351, 32 N. Y. Supp. 136; 1113; Pulliam v. Sells, 30 Ky. Law Miller v. Lowe, 14 Ann. Cas. 343, 86 Rep. 456, 99 S. W. 289. N. Y. Supp. 16). Judge McAdam ap- There are occasional decisions and pears to accept this construction, dicta in New York to the effect that See 1 McAdam, Landl. & Ten. (3d no notice is necessary to terminate Ed.) 105, 109. On the other hand, a tenancy from month to month, it has been held that the statute was See opinion of McAdam, J., in Gil- passed for the benefit of tenants foyle V. Cahill, 18 Misc. 68, 41 N. Y. only, and did not dispense with the Supp. 29; Decker v. Sexton, 19 Misc. necessity of one month's notice 59, 43 N. Y. Supp. 167; People v. from the landlord (Hungerford v. Darling, 47 N. Y. 666; Geiger v. Wagoner, 5 App. Div. 590, 39 N. Y. Braun, 6 Daly (N. Y.) 506. And see Supp. 369), the effect of which view cases cited ante, § 14 c (1), note 507. would appear to be to confine the Compare the cases cited ante, § 14 application of the statute to tenan- c (1), note 506, to the effect that cies for a term of one month. The one month's notice is necessary. In statute, it has been held, does not Hoffman v. Van Allen, 3 Misc. 99, 22 require notice to be served on a sub- N. Y. Supp. 369, it is said that "as- tenant as well as a tenant (Decker suming that notice be not requisite v. Sexton, 19 Misc. 59, 43 N. Y. Supp. in simple tenancies from month to 167), and does not apply when the month" it is necessary when it is a tenant himself terminates the ten- letting from month to month "so ancy (Hoske v. Gentzlinger, 87 Hun, long as the rent is paid," since these 3, 33 N Y. Supp. 747). The notice words "make the term indefinite." must warn the tenant that if he No explanation is given of the dis- fails to remove at the time named tinction asserted. summary proceedings will be begun In New York, by Laws 1882, c. 303, against him. Folz v. Shalow, 16 N. amended by Lav/s 1889, c. 357, it is Y. Supp. 942. provided that no "monthly tenant" In Washington the statute (2 Ball, shall be removed in New York or Ann. Codes, § 5527, subd. 2) mak- Brooklyn unless "within five days ing guilty of unlawful detainer a before the expiration of the term" tenant for an indefinite time with the landlord serves notice on the monthly or other periodic rent re- tenant. The intention of the framer served, who continues in possession of this law, Judge McAdam, appears after the end of any such month or to have been to protect the tenant period, in cases where the landlord, in case of a lease for one month (see more than twenty days prior to the 1 McAdam. Landl. & Ten. [3d Ed.] end of such month or period, shall 108), and the use of the word have served a notice requiring him "term" would tend to show such to leave at the end of the month, is an intention, but the expression regarded as making a twenty days' "monthly tenancy" has been con- notice sufficient in order to terminate . ^gg PERIODIC TENANCIES. 1431 ancy measured by periods less than a year.^s The obligation to give notice is, at common law, reciprocal, the tenant being bound to give it, as well as the landlord, if he de- ft tenancy from month to month, case the notice shall be held to Yesler Estate v. Orth, 24 Wash. 483, terminate the tenancy at the end 64 Pac 723- Teater v. King, 35 of a period equal in time to that Wash 138 76 Pac. 688. The word in which the rent is made payable, "more" as' used in said statute does See Huntington v. Parkhurst 87 not add any additional time to the Mich. 38, 49 N. W. 597 13 L. R. A. twenty days, but merely designates 83, 24 Am. St. Rep. 146); Minnesota the complete expiration of that num- Rev. Laws 1905, § 3332 (When rent her of days. McGinnis v. Genss, 25 reserved at periods of less than wash. 490, 65 Pac. 755. three months, the time of notice ^^ Delaware Rev. Code 1893, P. shall be equal to the interval be- 866 (One week); Mississivpi Code tween the times of payment See 1906 §§ 2882, 2544 (One week); Grace v. Michaud, 50 Mmn. 139, 5i 2Jortn Carolina Revisal 1905, § 1984 N. W. 390); Mississipvi Code 1906, (Two days) § 2882 (One month's notice shall be 56 Indiana, Burns' Ann. St. 1901, given where the holding is by the § 7090 (In all tenancies which, by half year or quarter year); l^ew agreement of the parties, express or Hampshire Pub. St. 1901, c. 246, § 3 implied, are, from one period to an- (If the rent is payable more f re- other of less than three months' quently than once in three months, duration a notice equal to the in- thirty days' notice shall be sufficient, terval between such periods shall be and three months' notice shall be suff-cient); Kansas Gen. St. 1905, sufficient in all cases) ; I^et. /er«ey § 4054 (Thirty days' notice "before 2 Gen. St. p. 1921, § 29 (In all cases either party can terminate tenancy where any tenant entitled to notice from one period to another of three three months shall be sufficient) ; 2 months or less. But where rent is Gen. St. p. 1924, § 37 (Where no reserved payable at intervals of less term is agreed upon, and the rent than thirty days, the length of notice is payable monthly, so long as the need not be greater than such inter- tenant pays the rent agreed it shall val")- OfcZaT^oma Rev. St. 1903, § 3323 be unlawful for the landlord to dis- (Same as Kansas); Michigan Comp. possess the tenant before the first Law. 1897 § 9257 (When rent is day of April succeeding the_ corn- payable at periods of less than three mencement of such letting, without months, the time of notice is suffi- giving the tenant three months cient if equal to the interval be- notice to quit); Washington B^U. tween times of payment, and it, Ann. Codes & St. § 4569 (When shall not be void because it men- premises rented for an indefinite tions a day for the termination of time with monthly or other periodic the tenancy not corresponding to rent reserved, such tenancy shall be the conclusion or commencement of terminated by written notice of any such period; but in any such thirty days or more). 1432 NOTICE TO QUIT. § 196 sires to terminate the tenancy.^''' The statutes above referred to likewise orditnarily require notice to be given by the tenant as well as the landlord. Where, however, a statute provided only for notice to the tenant from the landlord, it was held that the landlord had no right to a notice from the tenant, it being considered that the common-law requirement of notice to the land- lord was entirely superseded by the statutory provision as to notice.^s Likewise, in one state it has been decided, without any statutory enactment bearing on the subject, that no notice is necessary on the part of the tenant to terminate the tenancy.^^ The common-law rule, in regard to the length of notice neces- sary to terminate a periodic tenancy, may be superseded by aJi express agreement in this regard,^*^ and a statutory provision on the subject would no doubt likewise yield to any contract be- tween the parties.^i d. Tenancy at sufferance. A tenant at sufferance would seem, by the very nature of the case, not entitled to notice to quit, since otherwise the effect would be to enable a tenant for a fixed term, by wrongfully holding over, to acquire a right to a notice to which otherwise he is not entitled, and that such is the law has been frequently recognized.^2 Jq some states, however, the legis- 57 A. G. Rhodes Furniture Co. v. Taunt. 555; Dixon v. Bradford & Weeden, 108 Ala. 252, 9 So. 318; Dist. R. Servants' Coal Supply Soc. Pugsley V. Aikin, 11 N. Y. (1 Kern.) [1904] 1 K. B. 444. 494; Tanton v. Van Alstine, 24 111. ei See post, § 197. App. 405; Donahue v. Chicago Bank 62 Dewson v. St. Clair, 14 U. C. Q. Note Co., 37 111. App. 552; Roberson B. 97; Burns v. McAdam, 24 U. C. V. Simons, 109 Ga. 360, 34 S. B. Q. B. 449; McLeren v. Benton, 73 604; Hall v. Wadsworth, 28 Vt. 410; Cal. 329, 14 Pac. 879, 2 Am. St. Rep. Hanks v. Workmaster (N. J. Law) 814; Lee Chuck v. Quan Wo Chong, 66 Atl. 1097; Buck v. Lewis, 46 Mo. 91 Cal. 196, 19 Pac. 376; Jackson v. App. 227; Hall v. Myers, 43 Md. 446; Parkhurst, 5 Johns. (N. Y.) 128; Currier v. Perley, 24 N. H. 219, 228; Willis v. Harrell, 118 Ga. 906, 45 S. Morehead v. Watkyns, 44 Ky. (5 B. E. 794; Reed v. Reed, 48 Me. 388; Mon.) 229. Evans v. Reed, 71 Mass. (5 Gray) 58 Nelson v. Ware, 57 Kan. 670, 47 308, 66 Am. Dec. 368; Hildreth v. Pac. 540. Conant, 51 Mass. (10 Mete.) 298; 59 Brown v. Brightly, 17 Phila. Peter? v. Balke, 170 111. 304, 48 N. (Pa.) 252. See Milling v. Becker, E. 1012; Wamsganz v. Wolff, 86 Mo. 96 Pa. 182; Hollis v. Burns, 100 Pa. App. 205; Guthman v. Vallery, 51 206, 45 Am. Rep. 379. Neb. 824, 71 N. W. 734, 66 Am. St. 60 King V. Eversfleld [1897] 2 Q. Rep. 475; Lithgow v. Moody, 35 Me. B. 475; Doe d. Pitcher v. Donovan, 1 214 (semble); Moore v. Moore, 41 § 196 TENANCY AT SUFFERANCE. 143v lature has undertaken to provide that a tenancy at sufferance can be terminated only after notice of a month or more, placing it, for this purpose, in the same category as a tenancy at will,^^ N. J. Law, 515; Moore v. Smith, 56 N. J. Law, 446, 29 Atl. 159; Howard V. Carpenter, 22 Md. 10; Anderson V. Brewster, 44 Ohio St. 576, 9 N. E. 683; Rich v. Keyser, 54 Pa. 86, 93 Am. Dec. 675; Blocker v. McClen- don, 6 Ind. T. 481, 98 S. W. 166. It is sometimes provided by statute that no notice shall be necessary to terminate a tenancy at sufferance. Indiana, Burns' Ann. St. 1901, § 7094; Kansas Gen. St. 1905, § 4059. No demand for possession is nec- essary before suit, as in the case of a tenancy at will. Doe d. Roby v. Maisey, 8 Barn. & C. 767; Howard v. Carpenter, 22 Md. 10. The occasional statements in the Massachusetts cases to the effect that a tenant at sufferance is en- titled to a notice and sufficient time thereafter to remove before legal proceedings are begun against him to recover possession apparently all refer to cases in which a tenancy at will had been terminated by a con- veyance by the landlord, and the notice referred to is merely of the making of this conveyance. See Hooton v. Holt, 139 Mass. 54, 29 N. E. 221; Lash v. Ames, 171 Mass. 487, 50 N. E. 996; Pratt v. Farrar, 92 Mass. (10 Allen) 519; Clark v. Wheelock, 99 Mass. 14; Arnold v. Nash, 126 Mass. 397: Wardell v. Etter! 143 Mass. 19, 8 N. E. 420. See ante, § 13 b (4) (a). es Kentucky St. 1903, § 2326; Michigan Comp. Lavv^s 1897, § 9257 (Three months) ; Missouri Rev. St. 1899, § 4110 (One month); New York Real Prop. Law, § ms (Thirty days) ; Oregon, Bell. & C. Codes, § 5390 (Three months) ; Wisconsin Rev. St. 1898, § 2183 (One month). District of Columbia Code 1901, § 1221, provides that a tenancy by suf- ferance may be terminated at any time by a notice in writing from the landlord to the tenant to quit, or by such notice from the tenant to the landlord of his intention to quit on the thirtieth day after the day of the service of notice. In Rhode Island, likewise, the statute (Gen. Laws 1896, c. 269, § 1) provides that a tenant at sufferance shall quit up- on notice in writing from the lessor or owner at the day named therein, and the effect of this provision, in connection with one that "the time agreed on in a definite letting shall be the time of the termination thereof for all purposes" (section 6), has been stated to be "to secure to every person holding over after the expiration of an estate which he has rightfully eome into possession of by act of party, unless he be a lessee for a definite term, a clear opportunity to leave it without suit for his ejectment by requiring the owner or lessor to give him notice to quit as prescribed before bring- ing any such suit against him." Johnson v. Donaldson, 17 R. I. 107, 20 Atl. 242. It was in this case de- cided that, after sale under a mort- gage, the mortgagor's grantee was a tenant at sufferance entitled to notice to quit before suit to eject him. In Massachusetts, at one time, a statute existed requiring a notice to terminate a tenancy at sufferance, but this was repealed. See Kinsley 1434 NOTICE TO QUIT. § 196 and these enactments have given the courts considerable trouble. For the purpose of avoiding a construction of these statutes which would give a tenant Avrongfully holding over the right to such a notice before he could be turned out, the courts have occasionally adopted the statement, made by Coke and Blackstone, that a tenancy at sufferance arises from the laches of the la.ndlord, and have declared that, for the purpose of the statute at least, one holding over is not a tenant at sufferance unless and until the landlord has been guilty of laches in failing to take measures to oust him, and they go so far as to say that the circumstances must be such as to evince an assent by the owner to the tenant's continued occupancy.'^'* However sound and necessary these decisions may have been as constructions of the particular statutes, they are, if considered as statements of the qualities of a common-law tenancy at suffer- ance, entirely unsupported by authority. The statement that the tenancy arises from the laches of the landlord originated in a V. Ames, 43 Mass. (2 Mete.) 29. And the provision of the New Jersey stat- ute (Acts 1898, c. 228, § 109) re- quiring a notice of three months to terminate a tenancy by sufferance before a judgment for dispossession shall be ordered (see Guvenator v. Kenin, 66 N. J. Law, 114, 48 Atl. 1023) was, it spems, repealed by Acts 1901, c. 39, and Acts 1903, c. 13, §§ 1. 2, providing that "any lessee or tenant at will or at sufferance" may be removed by the district court when any such person shall hold over and continue in possession "after the expiration of his or her term, and after demand made and notice in writing given for deliver- ing the possession thereof." G4 Rowan V. Lytle, 11 Wend. (N. Y.) 616; Moore v. Morrow. 28 Cal. 551; Meno v. Hoeffel, 46 Wis. 282. 1 N. W. 31. See Eldred v. Sherman, 81 Wis. 182, 51 N. W. 441. There is a full discussion of the construction of such a statute in Al- len V. Carpenter, 15 Mich. 25, in which the court was divided as to its meaning. In a later case (Ben- fey V. Congdon, 40 Mich. 283) the court says that it does not know what the statute means, but that it does not give a tenant holding over a right to notice to quit. And see Kunzie v. Wixom, 39 Mich. 384, 33 Am. Rep. 403. To the same effect, that such a statute does not require a notice in order to oust a tenant holding over his term, see Irvine v. Scott, 85 Ky. 260, 3 S. W. 163. In Jjivingston v. Tanner, 14 N. Y. (4 Kern.) 64, it was held that such a statute, requiring a montb's notice to terminate a tenancy at sufferance, did not apply where a purchaser of a life estate remained in possession after the death of the cestui que vie. since another statute provided that any person having a life estate who held over without permission should be adjudged a trespasser. § 197 WAIVER OR MODIFICATION OF REQUIREMENT. 1435 dictum in a case of the time of Coke, where it was introduced for a particular purpose f^ and the view that the tenancy exists only in case of an implied assent by the landlord to the holding ignores the primary and peculiar feature of such a tenancy, distinguishing it from every other tenancy, that it is wiihout the landlord's as- sent. § 197. Waiver or modification of requirement. The notice to quit which might otherwise be necessary may be dispensed with by express stipulation.*^^ Likewise, the parties may provide for a notice of a length different from that which is ordinarily necessary, either greater or less.^^ But, it seems, such provision must not be repugnant to the nature of the tenancy, as, for instance, by requiring, in the case of a tenancy from year to year, a notice of over a year.^^s And a provision precluding the landlord, in the case of such a tenancy, from terminating it by notice, would, it seems, be void, or it would have the effect of making the tenancy one for life.^^ It has in England been decided that a notice, which is not of the length required by law or named in the lease, cannot be ren-. dered effective to terminate the tenaxicy by the recipient's ac- quiescence therein, upon its receipt, or even by his express verbal assent thereto, since this would, in effect, involve a termination of the tenancy by an agreement constituting in law a surrender, and a surrender must be in writing, when not by operation of 65 Sir Moil Finch's Case, 2 Leon. D. C. (2 Mackey) 450; May v. Rice, 134. See ante, § 15 a, note 550. 108 Mass. 150, 11 Am. Rep. 328; B. 60 Betliell V. Blencowe, 3 Man. & Roth Tool Co. v. Champ Spring Co.. G. 119; In re Threlfall, 16 Ch. Div. 93 Mo. App. 530, 67 S. W. 967. 274; King v. Eversfield [1897] 2 Q. es See Tooker v. Smith, 1 Hurl. & B. 475; Sullivan v. Bnders, 33 Ky. N. 732, and Weller v. Carnew, 29 (3 Dana) 66; Davis v. Murphy, 126 Ont. 400, ante, note 9. But the par- Mass. 143; Wilke v. Campbell, 5 Pa. ties may agree that a periodic ten- Super. Ct. 618; Connors v. Clark, 79 ancy shall be terminated by a notice Conn. 100, 63 Atl. 951. It is so ex- expiring at any particular time pressly provided by D. C. Code 1901, named. See post, note 166. § 1236. 09 Doe d. Warner v. Browne, 8 G7 Doe d. Pitcher v. Donovan, 1 East, 165; Cheshire Lines Com- Taunt. 555; Crowley v. Vitty, 7 rnittee v. Lewis & Co., 50 Law J. Q. Exch. 319; Doe d. Peacock v. Raffan, b. 121. 6 Esp. 4; Waggaman v. Bartlett, 13 1436 NOTICE TO QUIT. § 197 law.'"' There is one ease in this country which appears to sup- port this view,'^! but there are at least dicta to the effect that one party may waive the requirement of notice from the other party to terminate the tenancy J^ Occasionally the requirement of no- tice is said to be waived when the landlord accepts possession of the premises from the tenant,'^^ ]yyj^ jn g^eh a case there is in reality a surrender by operation of law which terminates the tonancyJ^ The requirement of notice to the tenant is dispensed with in 70 Johnstone v. Hudlestone, 4 Barn. & C. 922; Bessell v. Landsberg, 7 Q. B. 638; Doe d. Huddleston v. Johnston, McClel. & Y. 141. ., 71 Lewis V. Scanlan, 3 Pen. (Del.) 238, 50 Atl. 58. In Smith v. Smith, 62 Mo. App. 596, it is decided that a verbal agreement dispensing with the written notice required by stat- ute is nugatory. 72 Davis V. Murphy, 126 Mass. 143; Whitney v. Gordon, 55 Mass. (1 Gush.) 266; Graham v. Anderson, 3 Har. (Del.) 364; Farson v. Goodale, 90 Mass. (8 Allen) 202. Compare Sander v. Holstein Commission Co., 118 Mo. App. 29, 121 Mo. App. 293, 99 S. W. 12, where it was held that the landlord's acts did not show a waiver of written notice from the tenant. In Eimermann v. Nathrin, 116 Wis. 124, 92 N. W. 550, upon the land- lord's refusal to make repairs, the ten.'int said that he would notiTy the landlord if he decided to remain, and did not notify him, and the landlord advertised the premises as for rent one month before the end of the year and continued advertis- ing till the end of the year, and re- fused in terms to allow the tenant to remain, and it was held that the roqulrement of thirty days' notice was waived by the landlord. In Woodbury v. Butler, 67 N. H. 545, 38 Atl. 379, it was held that a ten- ant from year to year who, at the public sale of the premises, assented to the auctioneer's statement that he would give up possession within four weeks, was estopped, as against a purchaser at the sale, to claim a three months' notice. The tenant may lose all right to the statutory notice to terminate the tenancy at the end of a period by his failure to pay rent, thus render- ing his tenancy subject to a forfeit- ure on that account. See Snyder v. Porter, 69 Neb. 431, 95 N. W. 1009. 73 Williams v. Jones, 64 Ky. (1 Bush) 621; Whitney v. Gordon, 55 Mass. (1 Gush.) 266; Vegely v. Rob- inson, 20 Mo. App. 199; Elgutter v. Drishaus, 44 Neb. 378, 63 N. W. 19; Torrans v. Stricklin, 52 N. C. (7 Jones Law) 50; Merritt v. Merritt, 3 N. Y. St. Rep. 484. See Hetfield v. Lawton, 108 App. Div. 113, 95 N. Y. Supp. 451. The act of the landlord in entering with a person sent by the tenant, who has abandoned pos- session, to remove articles left by the tenant, or in entering to turn off the water after such abandonment, is not a waiver of the requirement of notice. Finch v. Moore, 50 Minn. 116, 52 N. W. 35;4. 71 See ante, § 190 c. §197 WAIVSR OR MODIFICATION OF REQUIREMENT. 1437 case he disclaims holding under the landlord,'^^ since one who denies that he is tenant is not entitled to claim the privileges of a tenant. In two or three states the courts have, in particular cases, re- garded the action of the tenant in quitting the premises as suffi- cient notification of his desire to terminate the tenancy at the end of the current period, and as dispensing with the necessity of any formal notice.'^^ In jurisdictions where the statute requires, ex- pressly or by implication, that the notice be in writing,''"^ it does not seem that such mere relinquishment of possession could properly be regarded as a sufficient compliance with the require- ment, and even when there is no requirement that the notice be in writing, to regard a mere act, without any communication with the landlord, as satisfying the requirement of notice, seems de- cidedly open to question/^ 75 See ante, § 192. T6 In Adams v. Cohoes, 127 N. Y. 175, 28 N. E. 25, it was decided that, assuming that a notice to quit was necessary to terminate a tenancy, created by a tenant's holding over his term, at the end of a year of holding over, the act of the tenant in leaving the premises nine months before the expiration of the year, taking a lease of other premises, and refusing to pay rent subsequently ac- cruing, was sufncient notice. In Rorbach v. Crossett, 46 N. Y. St. Rep. 426, 19 N. Y. Supp. 450, it was de- cided that there was sufficient notice in the case of a tenancy from month to month, created by holding over, if the tenant tendered the keys, which the landlord refused to ac- cept and he then left them with the latter, this clearly showing an in- tention to terminate the tenancy. In Betz V. Maxwell, 48 Kan. 142, 29 Pac. 147, it was decided that where the tenant was about to leave with- out notice, and the landlord, know- ing thereof, sued for and recovered one month's rent, the necessity of a month's notice was dispensed with. In Roberson v. Simons, 109 Ga, 360, 34 S. E. 604, it was decided that whon a tenant from year to year abandoned the premises, leaving in possession, however, a subtenant, who remained for a year and a frac- tion, the original tenant was liable for two years' rent, the abandon- ment not being equivalent to notice, but it was at the same time said that it might be different if the sub- tenant were not left in possession. In Landsberg v. Tivoli Brew. Co., 132 Mich. 651, 94 N. W. 197, the action of the tenant in returning the keys and relinquishing possession was re- garded as sufficient, the statute not requiring a written notice. 77 See past, § 199, note 77. 7s That abandonment does not re- lieve the tenant from liability for rent until he gives the prescribed notice, see Eastman v. Vetter, 57 Minn. 164, 58 N. W. 989; Chapman V. Tiffany, 70 N. H. 249, 47 At!. 603; Rollins V. Moody, 72 Me. 135; Hall V. Wadsworth, 28 Vt. 410; Arbenz. V. Exley, Watkins & Co., 57 W. Va. 1438 NOTICE TO QUIT. § IQS § 198. By and to whom notice to be given. Notice upon the part of the landlord may be given either by the original lessor or by the person or persons succeeding him in the ownership of the reversion.'^^ One having merely an equi- table title, based on a contract for the sale to him of the re- version, has no authority to give it.^*^ When a lease is made by two or more joint tenants, notice by one, on behalf of all, is sufficient to terminate the tenancy as to his own share,8i and, likewise, according to the English decisions, as to that of the others,'^^ unless the lease expressly requires the notice to be given by all.^-'^ In the case of a lease by tenants in common, likewise, each may give a notice, good as to his un- divided share,s4 and presumably in England the rule, applied in the case of a lease by joint tenants, that each may give a notice in behalf of the others, would be applied in the case of a lease by tenants in common. In one case in this country, how- ever, it has been decided that one tenant in common cannot give a notice in behalf of the others,^^ and there is a dictum in that case to the effect that one joint tenant cannot do so. In case the lessor makes a concurrent lease, as distinguished from a lease in reversion, the lessee becomes the landlord for the time being,*^^ and consequently he, and not the lessor, is the person to give the notice.^'^ . An authorized agent of the landlord may give the notice on behalf of his principal,^^ and he may, it has been decided, give it 580, 50 S. E. 813. See, also, cases ss Right v. Cuthell, 5 East, 491. cited ante, § 190 e (2), and post, § 84 See Cutting v. Derby, 2 Wm. 200. Bl. 1075. 79 Liddy v. Kennedy, L. R. 5 H. ss Pickard v. Perley, 45 N. H. 188, L. 134; Swope v. Hopkins, 119 Ind. 86 Am. Dec. 153. In Earl Orchard 125, 21 N. E. 4fi2. Co. v. Fava, 138 Cal. 76, 70 Pac. 1073, 80 Reedor v. Sayre, 70 N. Y. 180, 26 notice by one cotenant was regarded Am. Rep. 567. as sufficient, but there it appeared 81 Doe d. Whayman v. Chaplin, 3 that the other had previously in- Taunt. 120. formed the tenant that the one who 82 Doe d. Aslin v. Summersett, 1 gave the notice had charge of the Barn. & Adol. 135; Doe d. Elliot v. "renting of the place." Hulme, 2 Man. & R. 433; Doe d. 86 See ante, § 146 d, at notes 24-27. Kindersley v. Hughes. 7 Mees. & W. s? Wordsley Brewery Co. v. Hal- 139; Alforri v. Vi'^kery, Car. & M. ford, 90 Law T. 89; Doe d. Jarvis v. 280; Burrows v. Mickelson, 14 Man. McCarthy, 5 New Br. (3 Kerr) 63. Rep. 73Q. ^* Reeder v. Sayre, 70 N. Y. 180, § 198 BY AND TO WHOM TO BE GIVEN. 1439 in his own name, if he has general control over the property,^^ as when he is an agent to let and also to receive rents,^*' or is the steward of the corporate owner,^^ while if acting under a special authority for this particular purpose he must, it has been de- cided, give the notice in the name of his principal.^2 Jq one case it was decided, without reference to the character of the agent's authority, that a notice, signed by H. "Agent for" the land- lord, was as effectual as one signed in the landlord's name "by H. Agent. "93 ^ notice purporting to be signed by the owner, "by B. & K., her attorneys and agents," was held to be valid, though a clerk of the firm of B. & K., by direction of a member of the firm, did the actual writing of the signature."-* In case a notice is given in behalf of the landlord by one who is not au- thorized to do so, the landlord cannot, it has been decided, ratify it, at least after the requisite interval of time has commenced to run 95 The notice should be given to the immediate tenant"^ and not to a mere subtenant;"^ and a notice to the tenant is effective as 2fi Am. Rep. 5G7; Doe d. Birming- but was a demand of possession as ham Canal Co. v. Bold, 11 Q. B. 127. a preliminary to summary proceed- No written authority is necessary, ings. Felton V. Millard, 81 Cal. 540, 21 94 Bond v. Chapman, 34 Wash. 606, Pac. 533, 22 Pac. 750. 76 Pac. 97. In McClung v. McPher- sn Jones V. Phipps, L. R. 3 Q. B. son, 47 Or. 73, 81 Pac. 5G7, 82 Pac. 567. 13, it was decided that failure to 90 Doe d. Manvers v. Mizem, 2 object to the introduction in evi- Moody & R. 56. dence of a notice signed by the land- A receiver authorized to let may lord's attorneys admitted their au- give notice to quit in his own name, thority to sign it. Wilkinson v. Colley, 5 Burrow, 2694; os pickard v. Perley, 45 N. H. 188, Doe d. Marsack v. Read, 12 East, 57. gg j^^ pec. 153; McCroskey v. Ham- 91 Roe d. Dean & Chapter of ^ton, 108 Ga. 640, 34 S. E. Ill, 75 Rochester v. Pierce, 2 Camp. 96. ^m. St. Rep. 79; Doe d. Mann v. 92 Jones V. Phipps, L. R. 3 Q. B. Walters, 10 Barn. & C. 626; Doe d. 567. Lyster v. Goldwin, 2 Q. B. 143; 93 Earl Orchard Co. v. Fava, 138 B^ahn v. Jersey Citv Forge Co., 38 Cal. 76, 70 Pac. 1073. In Reed v. ^ j ^aw, 74. Goodtitle v. Wood- Hawley. 45 111. 40, it was held that ^^^^^^ ^ ^^^^ ^ ^^^ ^^^^ ^^^^^^ .^ in effect overruled. a "notice to quit" signed "C. M. H. (the landlord) by W. C. R., an au- . . , , J., . ■, 4.,, „,„c c„ffi/>,-or>+ 96 Whether the original lessee or thorized agent, was sufficient, though it would have been better to tis assignee. Mount Palatine Acad- have substituted "his" for "an." This emy v. Kleinschnitz, 28 111. 133. was not properly a "notice to quit," »» Pleasant v. Season, 14 Bast, 1440 NOTICE TO QUIT. § 19S against a subtenant, whether the sublease be made before^^ or after the notice.'^^ A person in actual occupation is, however, presumed to be an assignee of the leasehold for this purpose rather than a subtenant, 'until the contrary is proven.io'^ And it has been decided that, if the tenant's widow continues in pos- session after his death, notice to her to quit is effective to ter- minate the tenancy, in the absence of evidence of the appoint- ment of an executor or administrator,^ °i and this principle has been applied, in one case, to the extent of holding a notice to the widow in possession sufficient to terminate the tenancy, even as against an administrator subsequently appointed.1^2 Xn this last case the view is asserted, by the majority of the court, that, whoever might be in possession after the tenant's death, the land- lord should be entitled to terminate the tenancy by notice to such person, without being compelled to await the grant of letters of administration, or himself to have an administrator appointed. A notice to a corporation should be addressed to the corpora- tion and served on one of its officers.^°^ Where one of several tenants holds over the term, he alone, it has been decided, is to be regarded as a tenant for the purpose of notice to quit at the end of a subsequent year.^*'^ If the lease specifies that the notice is to be given to certain persons, it cannot be given to others.^ ''^ Notice on the part of the tenant should be given to his im- mediate landlord, and not to one under whom his landlord holds.^*^^ It may, however, be given to an agent who has the 234; Rx)e v. Wiggs, 2 Bos. & P. (N. v. Street, 2 Adol. & E. 329. And see R.) 330. ante, § 153. 98 Jackson v. Baker, 10 Jolins. (N. "i Rees v. Perrot, 4 Car. & P. 230. Y.) 270; Roe v. Wiggs, 2 Bos. & P. 102 Sweeny v. Sweeny, 10 Ir. R. C. (N. R.) 330. But in Waters v. Rob- L. 375. erts, 89 N. C. 145, it is said that a ^^^ Doe d. Carlisle v. Woodman, 8 notice to a sublessee need not be East, 228. ... ,.„ffl„;„„+ ?f io4Tice V. Cowenhoven, 63 N. J. by the sublessor, but is sufficient if title "Waiver"; article by Cohn P. Campbell, Esq., 3 Mich. Law Rev. 9. 1456 NOTICE TO QUIT. § 203 suggested by the cases previously referred to, and they are per- haps directly opposed thereto. There is in England a recent case which suggests the possibility that defects in a notice to quit may be cured by the action of the recipient in recognizing the notice as valid.'°^ On the other hand a notice expressed to expire at the wrong date, though accepted by the other party, has been there regarded as not binding on the giver of the notice. ^^^^ The failure of the addressee, when served personally with the notice, to object to the time named, has been regarded as raising a presumption that this was the proper time,205 ^ presumption capable of rebuttal if not in accord with the facts.206 § 203. Service of notice. Personal service of the notice upon the person for whom it is intended is not necessary, if it is served upon an agent having ex- press or implied authority to receive such a notice.^^^'^ A notice to a corporation may be served on the treasurer, or, it seems, on any of its executive oiScers.^t*^ Upon the question whether a notice may be served upon the wife or servant of the person for whom it is intended, the deci- sions are not entirely clear. There are cases apparently to the eft feet that a service upon the wife or servant of such person, at his 203 General Assur. Co. v. Worsley, 204 Doe d. Murrell v. Milward, 3 64 Law J. Q. B. 253. There the ten- Mees. & W. 328. ant wrote in January, 1892, to the 205 Doe d. Charges v. Forster, 13 landlord, "I hereby give you notice East, 405; Thomas v. Thomas, -2 that I wish to terminate my tenancy Camp. 647; Doe d. Leicester v. Biggs, * * *. Will you kindly let me 2 Taunt. 190. know when my tenancy will ex- 206 Walker v. Code, 6 Hurl. & N. pire?" And the reply said, "We find 594; Oakapple v. Copous, 4 Term R. that six months' notice must be giv- 361. en to terminate on the first of July 207 Doe d. Prior v. Ongley, 10 C. B. in any year; you, therefore, hold the 25; Prendergast v. Searle, 81 Minn, rooms' till July, 1893," and it was 291, 84 N. W. 107 (Notice directed to held in a brief opinion (Per Wills & landlord may be served on one man- Wright, J. J.) that "it is obvious the aging the property), tenant meant to give notice to quit 208 Doe d. Carlisle v. Woodman, 8 the officer on the 1st of July, 1893, Ea«t, 22?; Lindeke v. Associates and the landlord meant to accept it." P--th V. Dennett, 13 C. B. 178. 602, 30 N. W. 194; Dockrill v. Schenk, 247 Babt-ock v. Albee, 54 Mass. (13 37 111. App. 44; Morgan v. Powers, 83 Mete.) 273. Hun, 298, 31 N. Y. Supp. 954. 248 Jackson v. Stafford, 2 Cow. (N. 250 Moody v. Seaman, 46 Mich. 74, Y.) 547; Boggs V. Black, 1 Bin. (Pa.) 8 N. W. 711; Messenger v. Arm- 333; Whiteacre v. Symonds, 10 East, strong, 1 Term R. 53; Doe d. Digby 13. In Vance v. Vance, 5 Ir. R. C. v. Steel, 3 Camp. 115. L. 363, it was held to be a question 251 Doe d. Williams v. Humphreys, for the jury whether there was a 2 Bast, 237; Ewing v. O'Malley, 108 tenancy from year to year, the notice Mo. App. 117, 82 S. W. 1087. not having been acted on. Here, 252 See post, § 213 b. hqwever, there was evidence that 253 See post, § 211. But merely §205 WITHDRAWAL OR WAIVER. 1465 of the former tenancy, since it may be that he intends to hold over otherwise than as tenant of the same landlord,25^ and a for- tiori there is no waiver of the notice if such retention of posses- sion is merely the result of inadvertance.^^^ Such retention of possession is, however, it seems, evidence to go to the jury upon the question whether there was a waiver of the notice.^^^ leaving ashes on the premises does the time named seems to be regarded not render him liable in use and occupation. Wilson v. Prescott, 62 Me. 115. 254 Jenner v. Clegg, 1 Moody & R. 213. In Hunter v. Kircher, 8 S. D. 554, 67 N. W. 621 the fact that the tenant remained in possession after as having some effect, but what effect does not clearly appear. 255 Gray v. Bompas, 11 C. B. (N. S.) 520. 256 Jones v. Shears, 4 Add. & E. 832. CHAPTER XXI. HOLDING OVER BY TENANT. i 206. Duty to relinquish possession. 207. What constitutes holding over. 208. Rights of tenant wrongfully holding over. 209. Landlord's option as to new tenancy. a. The rule usually adopted. b. The theory of the rule. c. Facts justifying exercise of option. d. Facts excluding exercise of option. e. Character of new tenancy. 210. New tenancy by agreement. a. Agreement express or implied. b. Character of new tenancy. c. Terms of new tenancy. 211. Liability in use and occupation. 212. Liability as tort feasor. 213. Liability for double rent or value. a. After notice or demand by landlord. b. After notice by tenant. 214. Cotenant lessee holding over. 215. Proceeding to recover possession. 216. Forcible resumption of possession by landlord. a. General considerations. b. Liability for entry on the land. c. Liability for injury to the person. d. Liability for removal of chattels. 217. Rights of landlord after resuming possession. § 206. Duty to relinquish possession. It is the duty of a tenant for years, unless he obtains a renewal of the lease, to relinquish possession of the premises at the end of the term, and his failure so to do is not excused by the fact that the landlord has not demanded the possession or manifested §206 DUTY TO RELINQUISH POSSESSION. 1467 a readiness to receive it.^ In one state only, it appears, has a different view been asserted, it being there said that the tenant is imder an obligation not to leave unoccupied a dwelling leased to him.2 The duty to relinquish possession applies to the whole premises, and if the tenant fails to relinquish any part he is re- garded as "holding over" as to all.^ The tenant has no right to retain possession for the sake of cleaning the premises,^ nor, it seems, for the sake of removing improvements in accordance with a stipulation giving him such right of removal.5 But not infrequently he is allowed, by the express provisions of the lease, to retain possession until the land- lord has paid him for improvements made by him.^ And occa- sionally a provision looking towards the possible purchase of the premises by the tenant may have the effect of enabling the latter to retain possession pending the settlement of the price to be paid.''' The fact that the instrument of lease provides that rent shall be paid by the lessee in case he holds over does not give him any right to hold over.s Nor can the tenant justify his failure to re- 1 Schilling v. Holmes, 23 Cal. 227, 83 Am. Dec. Ill; Werner v. Foot- man, 54 Ga. 128; Poppers v. Mea- gher, 148 111. 192, 35 N. E. 805; Ex- celsior Steam Power Co. v. Hal- stead, 5 App. Div. 124, 39 N. Y. Supp. 43; Cairns v. Llewellj'n, 2 Pa. Super. Ct. 599. Compare Mitchell v. Blos- som, 24 Mo. App. 48. 2 Kyle V. Proctor, 70 Ky. (7 Bush) 493; Bowling v. Ewing, 10 Ky. (3 A. K. Marsh.) 616. But compare Ky. St. 1903, §§ 2295, 2296, provid- ing that if a tenancy is to expire on a certain day, the tenant shall "abandon" the premises on that day. The cases above cited involved cov- enants to return the premises at the end of the term. sBallance v. City of Peoria, 180 111. 29, 54 N. E. 428; Bless v. Jen- kins, 129 Mo. 647, 31 S. W. 938; Cav- anaugh v. Clinch, 88 Ga. 610, 15 S. E. 673. That the prosecution by the land- lord of a suit to invalidate the lease, which suit did not prevent the les- see from exercising his rights, did not give any right to the latter to compensation by further extension of his holding, see Lanyon Zinc Co. v. Burtiss, 72 Kan. 441, 83 Pac. 989, 115 Am. St. Rep. 219. 4 Byxbee v. Blake, 74 Conn. 607, 51 Atl. 535, 57 L. R. A. 222. 5 See post, § 243 e. A stipulation giving the lessee the right to remove improvements does not extend the right of possession beyond the term, but, at most, gives a right merely to enter within a reasonable time to remove the im- provements. I. X. L. Furniture & Carpet Installment House v. Berets, 32 Utah, 454, 91 Pac. 279. 6 See post, § 271 k. 7 See post, § 265, at note 77. 8 Edwards v. Hale, 91 MaBS. (9 2468 HOLDING OVER BY TENANT. § 207 linquish possession by showing tliat lie had permission to remain from an intending lessee of the reversion, the negotiations be- tween whom and the landlord, however, did not result in the mak- ing of a lease.^ It has been decided that, when the day of the termination of the tenancy falls on Sunday, the tenant need not relinquish pos- session till the next day,i« applying the rule which is ordinarily adopted that, if one has a certain period in which to do a thing, and the last day of the period is Sunday, he has until the next day for performance.^^ In three states the statute provides that if, in the case of agri- cultural land, the tenant holds over sixty days without any de- mand for possession being made upon him, he may hold for an- other year, as by permission of the landlord.12 In another state there is a somewhat similar provision, that if proceedings to expel the tenant are not brought within a time named, he may hold over for another term of a period named in the statute.i^ § 207. What constitutes holding over. A tenant cannot be regarded as holding over merely because he leaves a few abandoned articles on the premises,!"* and in one Allen) 462- Compare Pickett v. than a year, that the tenant may Bartlett, 107 N. Y. 277, 14 N. E. 301. hold sixty days longer if no pro- 9 Poppers V. Meagher, 148 111. 192, ceeding is brought within thirty 35 N E. 805. days. The payment of one month's 10 Frost V. Akron Iron Co., 1 App. rent is said to be "persuasive evi- Div. 449 37 N. Y. Supp. 374. dence" of the existence of a new con- 11 See cases cited 28 Am. & Eng. tract. Unger v. Bamberger, 85 Ky. Enc. Law (2d Ed.) 224. 11, 2 S.W. 498, 7 Am. St. Rep. 571. 12 CaUfornia Code Civ. Proc. § 1161 But in another case (Irvine v. Scott, (2) ; Utah Comp. Laws 1907, § 3576; 85 Ky. 260, 3 S. W. 163), it was said Washington, Ball. Ann. Codes & St. that the payment of two months' 5 5528. See Snyder v. Harding, 38 rent would not be sufficient to defeat Wash. 666, 80 Pac. 789; Mounts v. the landlord's remedy for posses- Goranson, 29 Wash. 261, 69 Pac. 740. sion, though there it was held that 13 In Kentucky the statute (St. the landlord was estopped to oust 1903, § 2295) provides that a tenant the tenant after he had stood by and for a year or more, holding over permitted him to take in on the without any contract, can hold for rented premises (a stable) sufficient one year longer if no proceedings are provender to last for a year, brought to eject him within ninety 14 Gibbons v. Dayton, 4 Hun (N. days The next section contains a Y.) 451: Excelsior Steam Power Co. provision, as to a tenan-y for loss v. Halstead, 5 App. Div. 124, 39 N. § 207 WHAT CONSTITUTES. 1469 state it appears to have been decided that the leaving of articles not abandoned by liim does not have that effect.^^ The reten- tion by the tenant of the keys of the building on the land leased has been regarded as involving a holding over by him/*^ but a different view has been asserted when the failure to return the keys was accidental. i" For the purpose of imposing liability on a tenant, a retention of possession by his tenant, a subtenant, is ordinarily regarded as a holding over by the tenant himself, although without the lat- ter 's complicity or consent.^ ^ This is not the case, however, if the retention of possession by the subtenant is by arrangement with the head landlord or a subsequent lessee of the latter, enti- tled to possession on the end of the original term.^^ That one of two persons to whom the lease was made holds over with the assent of the other has been regarded as a holding over by both,2o ]j^+ ^j^jg jg j^qi ^j^g cage if the retentioji of possession by one is without the other's assent.^i Y. Supp. 43; Beeston v. Yale, 75 App. Div. 388, 78 N. Y. Supp. 158. 15 Frost V. Akron Iron Co., 1 App. Div. 449, 37 N. Y. Supp. 374. See cases cited post, note 37. In Nisbet V. Hall, 28 Nova Scotia, 80, the fact that the moving was not completed on the last day of the term was not regarded as involving a holding over. That one who leased land fronting on the water for the purpose of stor- ing logs, having removed all his logs at the end of the term, retained his boom in front of the land, in order to prevent logs from coming upon the land, was held not to involve a re- tention of the possession of the land. Thomas v. Frost, 29 Mich. 336. 16 See Byxbee v. Blake, 74 Conn. 607, 51 Atl. 535, 57 L. R. A. 222; Burnham v. Martin, 90 111. 438. Contra, Steen v. Scheel, 46 Neb. 252, 64 N. W. 957. 17 Gray v. Bompas, 11 C. B. (N. S.) 520; Brennan v. New York, 80 App. Div. 251, 80 N. Y. Supp. 247. 18 Harding v. Crethorn, 1 Esp. 57; Henderson v. Squire, L. R. 4 Q. B. 170; Schilling v. Holmes, 23 Cal. 227, 83 Am. Dec. Ill; Bacon v. Brown, 9 Conn. 334, 23 Am. Dec. 358; Berkow- sky V. Cahill, 72 111. App. 101; Ven- tura Hotel Co. V. Pabst Brew. Co., 33 Ky. Law Rep. 149, 109 S. W. 354; Brewer v. Knapp, 18 Mass. (1 Pick.) 334; Bless v. Jenkins, 129 Mo. 647, 31 S. W. 938; Lubetkin v. Elias Brew. Co., 21 Abb. N. C. 304, 4 N. Y. Supp. 195; Sullivan v. George Ringler & Co., 171 N. Y. 693, 64 N. E. 1126; Morgenthau v. Beaton, 88 N. Y. Supp. 359; Wilson v. Cincin- nati, 10 Qhio Dec. 123; Campau v. Mitchell, 103 Mich. 617, 67 N. W. 890, 27 L. R. A. 211. 19 Kennicott v. Sherwood, 22 III. 190. 20 Christy v. Tancred, 9 Mees. & W. 438. 21 Draper v. Crofts, 15 Mees. & T^ . 166. 1470 HOLDING OVER BY TENANT. § 208 There have been a considerable number of decisions upon the question of what constitutes a holding over for the purpose of enabling the landlord to hold the tenant liable as under a new tenancy, even though the tenant does not intend such a new ten- ancy. These decisions will be subseque.ntly referred to.-^*" § 208. Rights of tenant wrongfully holding over. A tenant holding over the term of his lease without the con- sent, either express or implied, oi his landlord, is, as we have be- fore stated, a tenant at sufferance merely .22 Occasional state- mejits that he is a tenant at will when thus holding over are in- correct. ^^ The tenant thus holding over without the consent of the land- lord has, as stated elsewhere, in some jurisdictions, a right to demand that force shall not be used to eject him,2^ and he can- not be made liable in trespass until the landlord has entered on the premises.25 In other respects he has no greater rights than a trespasser,26 and he cannot assert rights under the covenants of the expired lease. ^^ § 209. Landlord's option as to new tenancy. a. The rule usually adopted. By the decided weight of au- thority in this country, one holding over may be held liable as a tenant for a further period, without reference to his actual wishes on the subject. As it is frequently expressed, the landlord has the option to treat him as a tenant for a further term or as a trespasser. It is said, i.n what may be regarded as the leading case supporting this view:28'29 ''When a tenant under a demise for a year or more holds over after the end of his term, without any new agreement with the landlord, he may be treated as a ten- ant from year to year, and in all other respects as holding upon 21a See post, § 209 c. 27 See Ives v. Williams, 50 Mich. 22 See ante, 5 15. lOO, 15 N. W. 33. 23 That he is not a tenant at will, 2s, 2.9 Conway v. Starkweather, 1 Bee Knhn v. Smith, 125 Cal. 615, 58 Denio (N. Y.) 113. Pac. 204, 73 Am. St. Rep. 79; Ferine The landlord only, and not a les- V. Teagne, 66 Cal. 446, 6 Pac. 84. see in reversion, has the right to as- 24 See post, § 216. sert this doctrine as against an over- 2fe See ante, § 15 a, at notes 559- holding tenant. United Merchants' 567. Realty & Imp. Co. v. Roth, 122 App. 26 See ante, § 15 c Dlv. 628, 107 N. Y. Supp. 511. . 209 LANDLORD'S OPTION, 1471 the terms of the original lease. The landlord has an election to treat him either as a trespasser, or as a tenant. He will be a tres- passer if the landlord brings ejectment, or resorts to summary proceedings under the statute to recover the possession. He will be a tenant if the landlord either receives or distrains for rent ac- cruing after the end of the original term. * * * The tenant ha'^. no such election as that which belongs to the landlord. If he holds over, though for a very short period, without any unequivocal act at the time to give his holding the character of a trespass, he is not afterwards at liberty to deny that he is in as a tenant, if the landlord chooses to hold him to that relation. lai England, and in one, if not more, of the states of this country, the courts have not recognized an option in the landlord thus to hold the tenant for another period merely because he wrongfully retains possession during a part of that period,3o they applying, in this case as in others, the rule that a tenancy can be created only by the consent of the parties thereto. A modern English case, however, approximates somewhat in result, it would seem, to the ordinary American rule, it being held that, the landlord hav- ing demanded rent of the overholding tenant, the latter 's failure to reply to such demand, combined with his continued retention of possession, showed a consent on his part to the renewal of the former tenancy .^^ It is somewhat surprising that the courts of this country, which have ordinarily shown a desire to mould the law in favor of the tenant rather than the laadlord, should have originated and gen- erally adopted a rule, the tendency of which is, in many cases, to operate with considerable severity upon a tenant who is dis- 30 See Ibbs v. Richardson, 9 Adol. holding over by any lessee shall be & E. 849; Jones v. Shears, 4 Adol. evidence of a new lease would seem & E. 832; Waring v. King, 8 Mees. & to preclude the adoption of the ord- W. 571; Nisbet v. Hall, 28 Nova inary American doctrine in that Scotia. 80; Kendall v. Moore, 30 Me. state. See Miller v. Lampson, 66 327; Edwards v. Hale. 91 Mass. (9 Conn. 432, 34 Atl. 79. But compare Allen) 4G2; Delano v. Montague, 58 Byxbee v. Blake, 74 Conn. 607, 51 Mass. (4 Cush.) 42; Emmons v. Atl. 53F5, 57 L. R. A. 222. And see Scudder, 115 Mass. 367. Compare the reference to the Wyoming stat- Dimock v. Van Bergen, 94 Mass. (12 ute. post, note 72. Allen) 5f)l. ' ^^ Dougal v. McCarthy [1893] 1 The provision of the Connecticut Q. B. 736. statute (Gen. St. § 4043) that no 2472 HOLDING OVER BY TENANT. § 209 posed promptly to relinquish possession but is accidentally pre- vented from so doing. The purpose and effect of the rule ap- pear to be to impose a penalty upon the tenant wrongfully hold- ing over, and this penalty it adjusts without reference to the act- ual wrong inflicted upon the landlord, as measured by the period of the holding over, or to the culpability of the tenant. b. The theory of the rule. It has been suggested that this op- tion in the landlord is to be regarded as based on the theory that the tenant holding over presumably intends to hold for an- other term or period, and that he cannot overthrow this presump- tion by asserting, to the disadvantage of the landlord, that he is holding as a wrongdoer.32 There seems, however, no advantage iu introducing such a theory, and it is more satisfactory to regard this as ''one among the cases where a person may be charged, as upon a contract, without his consent, and contrary to his in- tention. "^-^^ In other words, the tenant is liable for further rent upon the principle, not of contract, but of quasi contract. That this is the character of the liability plainly appears from the fact that it exists in spite of any statements by the tenant evidencing a contrary intention.^^ 32 Conway v. Starkweather, 1 Wierengo's Estate, 113 Mich. 151, 71 Denio (N. Y.) 113. N. W. 489, 67 Am. St. Rep. 461; 33 Clinton Wire Cloth Co. v. Gard- Bradley v. Slater, 50 Neb. 682, 70 ner, 99 111. 151. In Herter v. Mul- N. W. 258; Smith v. Bell, 44 Minn, len, 159 N. Y. 28, 53 N. E. 700, it is 524, 47 N. W. 263; Haynes v. Aid- said, per Martin' J., "The basis of rich, 133 N. Y. 287, 31 N. E. 94, 28 this liability is often said to be an Am. St. Rep. 636; Graham v. Demp- implied agreement upon the part of sey, 169 Pa. 460, 32 Atl. 408; Cava- the tenant to hold for another year, naugh v. Clinch, 88 Ga. 610, 15 S. While I doubt, as I always have, the E. 673. propriety of calling this class of In one case it has been decided obligations implied contracts, but that this rule will not be applied think they are to be regarded as the against a municipal corporation for duties which the law imposes, yet, the reason that no contract will be whether they be denominated im- implied against such a body. San plied contracts or duties created by Antonio v. French, 80 Tex. 575, 16 law, in either case the right arises S. W. 440, 26 Am. St. Rep. 763. This upon an implication of law, and in view would seem to be based on the no sense upon an express or abso- theory that the tenant's liabiliiy is lute contract." a strictly contractual one. That a 34 Schuyler v. Smith, 51 N. Y. 309, -mnnicipality may be made liable in 10 Am. Rep. 609; Wolffe v. Wolff, 69 quasi contract, see 1 Abbott, Munic- Ala. 549, 44 Am. Rep. 526; Mason v. jpal Corporations, p. 580. 209 LANDLORD'S OPTION. 1473 e. Facts justifying exercise of option. A question has arispn in a number of eases as to what constitutes a ''holding over" by the tenant, so as to bring him within this rule. The cases are gen- erally to the effect that the mere fact that the holding over was of but short duration does not exclude the application of the rule,35 nor does the fact that the tenant was engaged in moving at the expiration of the term and continued so doing without in- termission, and completed his removal within a few days, have such an effect.^*^ The action of the tenant in allowing all the per- sonal property used on the premises during the term to remain there till after its expiration ordinarily involves a holding overj^^ 35 Conway v. Starkweather, 1 Denio (N. Y.) 113 (fourteen days); Schuyler v. Smith, 51 N. Y. 3C9, 10 Am. Rep. G09 (twenty-one days); Wolffe V. Wolff, 69 Ala. 549 (ten days); Clinton Wire Cloth Co. v. Gardner, 99 111. 151 (eleven days); Oussani v. Thompson, 19 Misc. 524, 77 N. Y. St. Rep. 1061, 43 N. Y. Supp. 1061 (one day) ; Shanahan v. Shana- han, 55 N. Y. Super. Ct. (23 Jones & S.) 339, 14 N. Y. St. Rep. 732 (two days) ; Sullivan v. George Ringler & Co., 171 N. Y. 693, 64 N. E. 1126 (five days). But in Ketcham v. Ochs, 34 Misc. 470, 70 N. Y. Supp. 268; Id., 74 App. Div. 626, 77 N. Y. Supp. 1130, it was held that holding over till the afternoon of the day after that on which the term came to an end did not bring the case within the rule. 36 Shanahan v. Shanahan, 55 N. Y. Super Ct. (23 Jones & S.) 339, 14 N. Y. St. Rep. 732. So in Oussani v. Thompson, 19 Misc. 524, 77 N. Y. St. Rep. lOGl, 43 N. Y. Supp. 1061, where the tenancy expired October 1, and the tenant commenced to move on that day but did not finish moving till 5 o'clock in the afternoon of the next day, the tenant was held liable for another term. But see to the contrary, Ketcham v. Ochs, 34 Misc. 470, 70 N. Y. Supp. 26S. 37 Vosburgh v. Corn, 23 App. Div. 147, 48 N. Y. Supp. 598. In McMann V. Bloomer, 107 N. Y. Supp. 882, it was held that the action of the ten- ant in leaving some of his furniture on the premises for about a week, by the permission of the janitor, in- volved a holding over, the janitor having no authority to grant such permission. And in Fitzgerald v. St. George, 110 N. Y. Supp. 971, leav- ing, for fourteen days, bales of pa- per, empty cases and shelving, was regarded as constituting a holding over. But where the janitress of the apartment told the tenant that he might leave a piano and crib on the premises, and it was customary to leave articles until they could be conveniently removed, there was held to be no holding over within the rule (Smith v. Maxfield, 9 Misc. 42, 59 N. Y. St. Rep. 669, 29 N. Y. Supp. 63), and it was even held that there was no holding over where articles mortgaged were left, to be removed by the mortgagee, and he failed to remove them for fifteen days. Ketcham v. Ochs, 34 Misc. 470, 70 N. Y. Supp. 268; Id., 74 App. Div. 626, 77 N. Y. Supp. 1130. L. and Ten. 93. 1474 HOLDING OVER BY TENANT. 209 but the leaving of mere rubbish on the premises does not.^^ In one state the question whether there was a holding over has been quite frequently regarded as one for the jury, particularly in cases in which some of the tenant's chattels, though not all, re- mained on the premises after the end of the term.^^ There is a holding over by the tenant within the rule, though In Cavanaugh v. Clinch, 88 Ga. 610, 15 S. E. 673, it was held that there was a holding over within the rule when the tenant retained pos- session of part of the premises for two weeks in order to store articles pending their distribution to his customers. 38 Gibbons v. Dayton, 4 Hun (N. Y.) 451; Rohrbach v. Crossett, 46 N. Y. St. Rep. 426, 19 N. Y. Supp. 450. And see Wilson v. Prescott, 62 Me. 115, where this was held not a con- tinued use and occupation waiving a notice by the tenant terminating a tenancy at will. 30 In Vosburgh v. Corn, 23 App. Div. 147, 48 N. Y. Supp. 598, Hatch, J., says: "We do not question but that a case of holding over may be so doubtful that, determination of it may not be made as matter of law, as where the tenant has left upon the premises fixtures and small arti- cles of little value which he Intends to abandon, or where the removal of the property has been practically ac- complished. Such are the cases of Rorbach v. Crossett, 46 N. Y. St. Rep. 426, 19 N. Y. Supp. 450, where the property left was fixtures and worth- less articles, and the keys were sur- rendered and accepted by the land- lord; McCabe v. Evers, 30 N. Y. St. Rep. 833, 9 N. Y. Supp. 541, where a stove and some rubbish were left, and the keys were tendered the day following the expiration of the lease; Manly v. Clemens, 39 N. Y. St. Rep. 199, 14 N. Y. Supp. 366, where the landlord refused to renew the lease, and the tenant began mov- ing out and continued to midnight of that day, when he had removed every thing except a desk and safe, which he removed the next day." So it was held to be a question for the jury where the tenant did not remove all his machinery, which was very heavy, for over three weeks, owing to delays caused by a previous fire and negotiations for a new lease (Smith v. Allt, 4 Abb. N. C. [N. Y.] 205, 7 Daly, 492); and where the tenant, before the end of the term, removed everything ex- cept some broken boards and de- layed doing this because the last day of the term was a holiday, and there was a procession the next day (Hammond v. Eckhardt 16 Daly, 113, 30 N. Y. St. Rep. 856, 9 N. Y. Supp. 508) ; and where there was evidence that the tenant, in an interview with the landlord's agent, gave up the key, but in the same interview was given permission to re-enter in order to clean up and remove a few remaining articles (Frost v. Akron Iron Co., 1 App. Div. 449, 72 N. Y. St. Rep. 478, 37 N. Y. Supp. 374); and where the tenant left a press on the premises and thereafter two of his employes entered and used it without his knowledge (Excelsior Steam Power Co. v. Halstead, 5 App. Div. 124, 39 N. Y. Supp. 43). 209 LANDLORD'S OPTION. 1475 he himself is not in possession, if his subtenant has possession and fails to relinquish it before the end of the original term, this being in effect a holding over by the tenant, as being a result of his putti-ng another in possession.^o And it seems that, on the same theory, a holding over by one to whom the tenant has as- signed his term might likewise be regarded as a holding over by the assignor,-*! though the courts might hesitate to apply the rule in such a case, especially if the landlord had recognized the as- signee as his tenant by accepting rent, or similar acts. And the view that a holding over by any person to whom the tenant thus transfers his right of possession, whether by sublease or other- wise, involves a holding over by the tenant within the rule, is not m harmony with occasional decisions that in the case of a lease to a firm, if all but one of the partners withdraw during the term, giving place to others, a holding over by the new partner- ship does not bind those who retired.^2 d. Facts excluding exercise of option. The option on the part 40 Bacon v. Brown, 9 Conn. 334; Hall Steam Power Co. v. Campbell Print. Press & Mfg. Co., 5 Misc. 264, 25 N. Y. Supp. 106; Manheim v. Seitz, 21 App. Div. 16, 47 N. Y. Supp. 282; Lubetkin v. Henry Ellas Brew. Co., 21 Abb. N. C. 304, 4 N. Y. Supp. 195; Sullivan v. George Ringler & Co., 59 App. Div. 184, 69 N. Y. Supp. 38; Id., 171 N. Y. 693, 64 N. E. 1126; Haynes v. Aldrich, 133 N. Y. 287, 31 N. E. 94, 28 Am. St. Rep. 636; Cam- pau V. Mitchell, 103 Mich. 617, 61 N. W. 890. In Swart v. Western Union Tel. Co., 132 Mich. 651, 94 N. W. 197, It was decided that, since a person occupying desk room merely was not a subtenant, if, upon the ex- piration of the tenancy, the landlord refrained from removing such per- son's chair and desk, there was in effect a consent by him to such per- son's continued occupancy, and that he could not regard this as consti- tuting a holding over by the tenant. See, also, Landsberg v. Tivoli Brew. Co., 132 Mich. 651, 94 N. W. 197, for another case in which the rule was apparently regarded as inapplicable. 41 See Lubetkin v. Henry Elias Brew. Co., 21 Abb. N. C. 304, 4 N. Y. Supp. 195; Fulmer v. Cross- man, 8 Del. Co. Rep. (Pa.) 78, as in accord with this view. 42 James v. Pope, 19 N. Y. 324; Mason v. Tretig, 23 Misc. 443, 52 N. Y. Supp. 249. Buchanan v. Whit- man, 151 N. Y. 253, 45 N. E. 556, in- volved the question whether, in the case of a lease to a firm, a partner alone holding over could assert a right of renewal given by the lease to the firm, and it was decided that he could not, the landlord not hav- ing recognized him as holding under the terms of the lease. The lan- guage of the court is rather adverse to the view that a holding over by one partner covld bind the other partners, if otherwise than as their representative. 1476 HOLDING OVER BY TENANT. 209 01 the landlord to regard the tenant as liable for another period can obviously not be exercised when the latter remains in pos- session under an agreement that he is to hold for a less period,^^ nor when the landlord or the landlord's agent induces him to remain temporarily.-*^ And a provision of the lease that the ten- ant shall pay rent for the term, and also for such time as he may hold the premises, has been held to give the landlord a right to hold him merely for the period of actual occupancy.'*^ It has been decided in one state that the rule would not be applied in favor of the landlord if the tenant was unable wholly to relinquish possession owing to the serious illness of a member of his family,^^ and likewise where the removal was forbidden 43 Wilcox V. Raddin, 7 111. App. (7 Bradw.) 594; Landsberg v. TivoU Brew. Co., 132 Mich. 651, 94 N. W. 197; Dobbin v. McDonald, 60 Minn. 380, 62 N. W. 437; Montgomery v. Willis, 45 Neb. 434, 63 N. W. 794; Luger V. Goerke, 18 App. Div. 291, 79 N. Y. St. Rep. 839, 45 N. Y. Supp. 839. It was beld tbat one of sev- eral landlords, tenants in common of the reversion, could so agree to a temporary holding over by the les- see firm, though he was a member of such firm. Valentine v. Healey, 158 N. Y. 369, 52 N. B. 1097, 43 L. R. A. 667. But a mere proposition by the tenant to hold for a less time, to which he receives no answer owing to the agent's failure to trans- mit the answer, a, refusal, does not justify him in holding over. Smith V. Snyder, 168 Pa. 541, 32 Atl. 64. 44 Greaton v. Smith, 1 Daly (N. Y.) 380; Campau v. Mitchell, 103 Mich. 617, 61 N. W. 890. So where the landlord's agent refused to ac- cept the key and the rent which was due, and told the tenant to await the landlord's return to the city. Adler v. Mendelson, 74 Wis. 464, 43 N. W. 505. 41. Pickett V. Bartlett, 107 N. Y. 277, 14 N. E. 301. A similar effect was given to a clause in the lease providing that the tenants should pay "double rent for all such time as they shall hold over after the expiration of the term." Green v. Kroeger, 67 Mo. App. 621. But see Edwards v. Hale, 91 Mass. (9 Allen) 462, where it is said that "covenants for the payment of rent, in case the lessees shall hold over, do not give them the right to hold over." 46 Herter v. Mullen, 159 N. Y. 28, 53 N. E. 700, 44 L. R. A. 703, 50 Am. St. Rep. 517 (three out of the eight judges dissenting). On a subse- quent hearing in the intermediate court, it was decided that the ten- ant thus retaining possession was liable for rent until his final remov- al and until he gave notice to the landlord of that fact. Herter v. Mullen, 65 N. Y. Supp. 279. In Preiser v. Wielandt, 48 App. Div. 569, 62 N. Y. Supp. 890, the de- cision first above referred to was regarded as establishing that a ten- ant so holding over in case of sick- ness was rightfully in possession, and that therefore the landlord, in cisft he undertook to tear down the building at the end of the term, and §209 LANDLORD'S OPTION. 1477 by the board of health owing to an infectious disease contracted by the tenant 's child.'*^ i^ another state, hoAvever, it is held that the application of the rule would not be affected by the severe illness of the tenant.-^^ As before stated, the rule which we are now discussing is fre- quently stated as giving to the landlord a right to treat the ten- ant as holding for another year, or "as a trespasser." This statement, that the tenant may be treated as a trespasser, means merely, it would seem, that the landlord may treat him as one wrongfully in possession. In other words, the overholding ten- ant, if not recognized by the landlord as rightfully in possession, is a ''tenant at sufferance," giving this latter term its proper signification of a tenant holding over without permission.^9 In a few cases it has been decided that the landlord having, by his acts, made his election to treat the tenant holding over as a tres- passer, could not thereafter assert a liability on his part as ten- ant for a further term.^*^ so necessitated the removal of the sick person, was liable in tort for injuries to such person at the suit of such person's administrator. 47 Regan v. Fosdick, 19 Misc. 489, 43 N. Y. Supp. 1102. 48 Mason v. Wierengo's Estate, 113 Mich. 151, 71 N. W. 489, 67 Am. St. Rep. 4G1. Here, however, the ten- ant was not, apparently, sick on the premises, which consisted of a store, but the expressions of the court would seem to militate strongly against the view taken in Herter v. Mullen, 159 N. Y. 28, 53 N. E. 700, 44 L. R. A. 417, 70 Am. St. Rep. 517. 40 See ante, § 15. 50 It was held that there was such nn election when the landlord put up a notice "to let" and accepted the keys and took possession (Rosen- burg V? Lustgarten, 41 N. Y. St. Rep C23, 16 N. Y. Supp. 523), and when the tenant made a new lease to an- other (Goldberg v. Mittler, 23 Misc. 116, 50 N. Y. Supp. 733; Coleman v. Fitzgerald Bros'. Brew. Co., 29 Misc. 349, 60 N. Y. Supp. 460; Smith V. Maxfield, 9 Misc. 42, 29 N. Y. Supp. 63); but not merely because the landlord, before the end of the term, posted a "to let" sign, which he allowed to remain after the end of the term (Shanahan v. Shana- han, 55 N. Y. Super. Ct. [23 Jones & S.] 339, 14 N. Y. St. Rep. 738; Man- ly V. Clemens, 39 N. Y. St. Rep. 199, 14 N. Y. Supp. 366). The commencement of summary proceedings against the tenant by the landlord has been regarded as showing an election to regard his possession as wrongful, precluding the landlord from thereafter assert- ing a new tenancy (Johnson v. John- son, 62 Minn. 302, 64 N. W. 905; Rosenberg v. Sprecher, 74 Neb. 176, 103 N. W. 1045, 105 N. W. 293), as has a judgment in such proceedings in favor of the landlord (Lambert v. Borden, 16 111. App. [16 Bradw.] 431), Likewise, the commencement 1478 HOLDING OVER BY TENANT. §-09 e. Character of new tenancy. In the case above referred to as a leading case,^^ it is said that the new tenancy created, at the landlord's option, by the holding over, is a tenancy from year to year, and there are other cases to the effect that, if the original tenancy was for a year or more, the new tenancy is from year to year.s2 j^j^j on the same principle, in cases in which the original term was less than a year, as a month or a quarter, the new ten- ancy might presumably be regarded as a periodic tenancy meas- ured by such a period.^^ in a majority, however, of the deci- sions asserting this option on the part of the landlord, it is stated, v/ithout any particular discussion, that the new tenancy is for an- other vear.5* Occasionally it is stated that the new tenancy of an action for the penalty named in the instrument of lease in case the tenant held over was regarded as an election. Peck v. Christman, 94 111. App. 435. In Drake v. Wilhelm, 109 N. C. 97, 13 S. E. S91, an offer by the landlord to allow the tenant to remain at the same rent, made after the end of the term, was regarded as a waiv- er of the former's right to treat the latter as already his tenant. 51 Conway v. Starliweather, 1 Denio (N. Y.) 113. 52 Smith V. Bell, 44 Minn. 524, 47 N. W. 263; City of Chicago v. Peck, 98 111. App. 434; Goldsborough v. Gable, 140 111. 269, 29 N. E. 722, 15 L. R. A. 294; Williams v. Ladew, 171 Pa. 369, 33 Atl. 329; Providence County Sav. Bank v. Hall, 16 R. I. 154, 13 Atl. 122; Parker v. Page, 41 Or. 579, 69 Pac. 822; Shepherd v. Cummings, 1 Cold. (Tenn.) 354; Noel V. McCrory, 47 Tenn. (7 Cold.) 623. In Wisconsin it is so provided by statutie. See Rev. St. 1898, § 2187. 5:i Such seems to be the decision in Hood V. Drysdale, 27 Pa. Super. Ct. 540. BiWolffe V. Wolff, 69 Ala. 549, 44 Am. Rep. 526; Robinson v. Holt, 90 Ala. 115, 7 So. 441; A. G. Rhodes Furniture Co. v.Weeden, 108 Ala. 252, 19 So. 318; Bacon v. Brown, 9 Conn. 334; Cavanaugh v. Clinch, 88 Ga. 610, 15 S. E. 673; Clinton Wire Cloth Co. V. Gardner, 99 111. 151; Condon V. Brockway, 157 111. 90, 41 N. E. 634; New York, C. & St. L. R. Co. v. Randall, 102 Ind. 453, 26 N. E. 122; Alleman v. Vink, 28 Ind App. 142, 62 N. E. 461; Scott v. Beecher, 91 Mich. 590, 5 N. W. 20; Mason v. Wlerengo's Estate, 113 Mich. 151, 71 N. W. 4S9, 67 Am. St. Rep. 461; Haynes v. Aldrich, 133 N. Y. 287, 31 N. E. 94, 28 Am. St. Rep. 636; Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609; Merchants' State Bank v. Ruettel, 12 N. D. 137, 97 N. W. 853, 65 L. R. A. 762; Baltimore & 0. R. Co. V. West, 57 Ohio St. 161, 49 N. E. 344; Harvey v. Gunzberg, 148 Pa. 294, 23 Atl. 1005; Hemphill V. Flynn, 2 Pa. 144; Smith v. Snyder, 168 Pa. 541, 32 Atl. 64; Brinkley v. Walcott, 57 Tenn. (10 Heisk.) 22; Gilman v. City of Milwaukee, 31 Wis. 563; Voss v King, 38 W. Va. 607, 18 S. E. 762. That the tenant says that he will rem-ain after the term only as tenant from month to month does § 209 LANDLORD'S OPTION. I479 is for a term of the same length as the original tenancy.^'' The arbitrary character of the rule appears from the varying statements of difU'ereut courts as to the character of the tenancy which is created, at the option of the landlord, by the holding over. While the majority of the cases state that a tenancy for another year is created, none of them give any reason why the tenancy should be for a year rather than for some other period. It is not probable that a tenant for a month would, by holding over, become subject, at the landlord's option, as a tenant for a year longer, though the rule as frequently stated would have such an effect. It would perhaps be more satisfactory if the courts should agree that the tenant shall be liable, at the option of the landlord, for another period equal to the period by which the rent was originally adjusted. That is, that a tenant under a lease at an annual rent should be liable as tenant for another year, while a tenant under a lease at a monthly rent should be liable as tenant for another month. The courts have, however, asserted no such rule, and it would have in its favor merely the consideration of convenience and exactitude. When the tenant is thus regarded as liable for rent for an- other period or term at the landlord's option, his new holding is subject, as regards rent, and in other respects, to the provis- ions of the original lease,^^ in the same way as if the new tenancy not prevent him from being held as mencement of the occupation, the tenant from year to year, if the lease is regarded as for a full year, landlord does not assent to his re- so that the tenant holding over may maining as tenant from month to be treated as tenant for another month. Abeel v. McDonnell, 39 Tex. year. Douglass v. Seiferd, 18 Misc. Civ. App. 453, 87 S. W. 1066. 188, 41 N. Y. Supp. 289; Mason v. 55Ketcham v. Ochs, 34 Misc. 47U, Tietig, 23 Misc. 443, 52 N. Y. Supp. 70 N. Y. Supp. 268; Id., 74 App. Div. 249. 626, 77 N. Y. Supp. 1130; Wood v. Gor- so Wolffe v. Wolff. 69 Ala. 549, 44 don, 44 N. Y. St. Rep. 640, 18 N. Y. Am. Rep. 526; McKinney v. Peck, 28 Supp. 109; Schneider v. Curran, 19 111. 174; Clapp v. Noble, 84 111. 62; Ohio Cir. Ct. R. 224; Bradley v. New York, C. & St. L. R. Co. v. Ran- Slater, 50 Neb. 682, 70 N. W. 258, dall, 102 Ind. 453, 26 N. E. 122; Mc- Where a lease is within the statute Natt v. Grange Hall Ass'n, 2 Ind. providing that an agreement for the App. 341, 27 N. E. 325; Baylies v. In- occupation of land in New York City, gram, 84 App. Div. 360, 82 N. Y. which does not specify the duration, Supp. 891; Id., 181 N. Y. 518, 73 N. shall be regarded as running till the E. 1119; Merchants' State Bank v. first of May next after the com- Ruettell, 12 N. D. 519, 97 N. W. 853; 1480 HOLDING OVER BY TENANT. §210 were created witli the tenant's consent.^''' § 210. Nev/ tenancy by agreement. a. Agreement express or implied. Without reference to the doctrine, just discussed, that the landlord has an option to re- gard the tenant holding over as in for another period or succes- sion of periods, it is evident that the landlord and tenant may agree upon a continuance, or rather renewal, of the tenancy, that is, there may be a new 'demise by the former to the latter, with a consequent right of possession in the latter. Such a demise may be, and frequently is, in express terms, but it may be inferred from the acts of the parties, such as the payment and receipt of rent. In either case there is, strictly speaking, a "renewal lease," but this expression is ordinarily restricted to the case of a new demise for a fixed term. The presumption is, it has been said, in the absence of evidence on the subject, that the retention of possession is wrongful, and not under a new letting, expressed or inferred from the acts of the parties.^s The agreement for a new tenancy is, as is above suggested, ordinarily inferred from the payment of rent by the overholding tenant and its acceptance by the landlord, but other circum- stances may be considered.^^ By a considerable number of cases, an agreement for a new tenancy at a particular rent is to be in- ferred from the facts that the landlord notifies the tenant that if he holds over he Avill be held liable at that rent, and that the tenant, without making any protest, does hold over.^o it has been said that a mere demand by the landlord, made after the end Stevens v. New York, 111 App. Div. and after the term the landlord con- 362, 97 N. Y. Supp. 10G2; Voss v. tinned to collect the same rent from King, 38 W. Va. 607, IS S. E. 762. the subtenant, and no notice of the 57 See post, § 210 c. termination of the original lease 58 Brown v. Keller, 32 111. 151, 83 was given, the jury were allowed to Am. Dec. 258. find that the former tenant still con- 59 When a subtenant being in pos- tlnued as such and that the land- session, the landlord arranged with lord was still bound to pay to the the tenant to collect the rent from tenant the excess of rent collected, the subtenant, and to pay over to Schwarzler v. McClenahan, 38 App. the tenant the difference between the Div. 525, 56 N. Y. Supp. 611. rent paid by the subtenant and the eo See post, at note 111. smaller rent payable by the tenant, §210 NEW TENANCY BY AGREEMENT. 1481 of the term, for rent then accruing, shows permission by the landlord that the tenant may remain,'^! but it has been decided not to be conclusive evidence of his assent to a new tenancy.*^- /^The mere fact that the landlord fails promptly to demand pos- session, or to take steps to recover it, does not show that he has consented to the creation of a new tenancy.^^ And the fact that he brings a suit for rent, which may be intended to apply only to rent accrued during the original tenancy, cannot have such an effect.^'* That the landlord, after making another lease to an- other person, tells his tenant that he does not wish to disturb him and will not da so until compelled so to do by his new lessee, is obviously too loose and indefinite to constitute a new letting.^^ Nor does the action of the landlord in listening to a proposition from the tenant for a new lease have such an effect.''^ The payment and receipt of rent, though prima facie it shows a consent to a new tenancy, may, under particular circumstances, fail to do so, as wheji the landlord received it in ignorance that the original tenancy had come to an end,"^"^ or the payment is 61 Willis V. Harrell, 118 Ga. 906, 45 S. E. 794. The landlord's consent to a fur- ther holding has been regarded as shown by a month's notice, given by the landlord, to quit on a day three months later thar the end of the term, the notice declaring that day to be the end of a monthly term, the landlord also, in his affidavit for the tenant's removal, stating that the tenant held at a monthly rental of a certain amount, payable monthly. Baker v. Kenny, 69 N. J. Law, 180, 54 Atl. 526. 62 Condon y. Barr, 47 N. J. Law, 113, 54 Am. Rep. 121. In Banbury V. Sherin, 4 S. D. 88, 55 N. W. 723, it was decided that there was no re- newal for another year because the landlord demanded rent for the first month after the expiration of the lease, where a notice given before its expiration demanded possession, not on the day (?f its expiration, but a month thereafter, since the effect of such notice was to allow the tenant to hold over a month, paying rent. 63 Cairo & St. L. R. Co. v. Wiggins Ferry Co., 82 111. 230; Den d. Decker V. Adams, 12 N. J. Law (7 Halst.) 99; Jackson v. McLeod, 12 Johns. (N. Y.) 182. eiFelton v. Chellis (Vt.) 69 Atl. 149. But contra when the suit was specifically for rent accruing since the end of the original tenancy. Clinton Wire Cloth Co. v. Gardner. 99 111. 151. 65 Ball V. Peck, 43 111. 482. 66 Mastin v. Metzinger, 99 Mo. App. 613, 74 S. W. 431. The landlord does not, by accept- ing a bond, in the course of pro- ceedings by him to recover the land, to relinquish possession to him, ad- mit the tenant's possession to be rightful. Dorrell v. Johnson, 34 Mass. (17 Pick.) 263. 67 Doe d. Lord v. Crago, 6 C, B. 90. 1482 HOLDING OVER BY TENANT. § 210 made after suit to recover possession has been brought by the landlord.^^ It is a question of fact in each case whether a new tenancy is created.^^ The fact that one of the several joint lessees holds over under a tacit agreement with the landlord for a new tenancy does not bind the other joint tenants for a further period,'^" unless, it seems, they assent to such holding and agreement."^ In AVyoming it is provided by statute that there shall be no implied renewal of a lease, for any period whatever, either by the tenant holding over or by the landlord accepting rent, and that a holding over shall, in the absence of an express contract in writing for renewal, create a tenancy at sufferance only J 2 It is difficult to perceive the object of such legislation, apparently making one retaining possession by his landlord's asseait, even though paying rent to him, a wrongdoer. b. Character of new tenancy. The weight of authority is to the effect that if the previous tenancy was for one or more years, the new tenancy thus created "by implication" is, presumptively, one from year to year.'^^ This view, in the ordinary case, when the 68 Vanderford v. Foreman, 129 N. he was allowed to hold over by the C. 217, 39 S. E. 839. vendor merely in hopes that he 69 Dougal V. McCarthy [1893] 1 Q. would obtain the decree and the B. 736; Pusey v. Presbyterian Hos- sale be carried through. pital, 70 Neb. 353, 97 N. W. 475, 113 to James v. Pope, 19 N. Y. 324. Am. St. Rep. 788; Wilcox v. Mon- See Draper v. Crofts, 15 Mees. & W. tour Iron & Steel Co., 147 Pa. 540, 166. 23 Atl. 840; White v. Sohn, 63 W. 71 See Christy v. Tancred, 9 Mees. Va. 80, 59 S. E. 890. In VvMlliamson & W. 438; Tancred v. Christy, 12 V. Paxton, 18 Grat. (Va.) 475, where Mees. & W. 316. a contract for the sale of land to a 72 Wyoming Rev. St. 1899, §§ 2772, trustee provided that, if he failed 2773. And see the Connecticut stat- to obtain a decree ratifying the pur- ute, ante, note 30. chase by a time named, the pur- 73 Doe d. Clarke v. Smaridge, 7 Q. chaser should occupy the property B. 957; Manning v. Dever, 35 U. C. as tenant for a year, and the sum Q. B. 294; Dougal v. McCarthy previously paid by him should be [1893] 1 Q. B. 736; Singer Mfg. Co. regarded as rent, and he did fail to v. Sayre, 75 Ala. 270; Belding v. obtain such decree, it was held that Texas Produce Co., 61 Ark. 377, 33 the fact that he continued to hold S. W. 421; Strousse v. Bank of Clear after the year, paying rent, did not Creek County, 9 Colo. App. 478, 49 make him tenant from year to year, Pac. 260; Roberson v. Simmons, 109 since the circumstances showed that Ga. 360, 34 S. B. 604; Clinton Wire §210 NEW TENANCY BY AGREEMENT. 1483 new tenancy is based upon the payment and acceptance of rent, accords with the general rule as to the inference of a tenancy from year to year from the payment of a yearly rent,'^^ since the rent reserved on a lease for one or more years, even though payable monthly, is usually an annual rent, that is, adjusted with reference to yearly periods, and like sums, paid and accepted periodically after the termination of the lease, may well be regarded also as constituting annual rent. Likewise, adjudica- tio'ns that, if the original tenancy was for one or more months, at a certain monthly rent, the payment and acceptance of a like rent, after the expiration of the original tenancy, create a tenancy from month to month,'^^ are in accord with the general rule as to the inference of a monthly tenancy from the payment of monthly rent.'^^ In some cases the continuance of the relation by the assent of Cloth Co. V. Gardner, 99 111. 151; Hately v. Myers, 96 111. App. 217; Gardner v. Dakota County Com'rs, 21 Minn. 33; Love v. Law, 57 Miss. 596; Schneider v. Lord, 62 Mich. 141, 28 N. W. 773; Goldsborough v. Gable, 140 111. 269, 29 N. E. 722, 15 L. R. A. 294; Streit v. Fay, 230 111. 319, 82 N. E. 648, 120 Am. St. Rep. 304; Hall v. Myers, 43 Md. 446; Hanimon v. Douglas, 50 Mo. 434; Critchfield v. Remaley, 21 Neb. 178, 31 N. W. 687; West v. Lungren, 74 Neb. 105, 103 N. W. 1057; Baltimore & O. R. Co. V. West, 57 Ohio St. 161, 49 N. E. 344; Borough of Phoenix- ville v. Walters, 147 Pa. 501, 23 Atl. 776; Matthews v. Hipp, 66 S. C. 162, 44 S. E. 577; Hart v. Finney, 1 Strob. Law (S. C.) 250; Kibbard v. Newman, 61 Tenn. (2 Baxt.) 285; Amsden v Atwood, 69 Vt. 527, 38 Atl. 263; Emerick v. Tavener, 9 Grat. (Va.) 224; Baltimore Dental Ass'n v. Fuller, 101 Va. 627, 44 S. E. 771; King v. Wilson, 98 Va. 259, 35 S. E. 727; Allen v. Bartlett, 20 W. Va. 46. 74 See ante, § 14 b (2) (a). 75 Stoppelkamp v. Mangeot, 42 Cal. 316; Williams v. Apothecaries Hall Co., 80 Conn. 508, 69 Atl. 12; Shirk V. Hoffman, 57 Minn. 230, 58 N. W. 990; Backus v. Steinberg, 59 Minn. 4C3, 61 N. W. 335; Simmons V. Jai-man, 122 N. C. 195, 29 S. E. 332; Condon v. Barr, 47 N. J. Law, 113, 54 Am. Rep. 121; Baker v. Kenny, 69 N. J. Law, 180, 54 Atl. 526; Provi- dence County Sav. Bank v. Hall, 16 R. I. 154, 13 Atl. 122; Barium v. Berger, 125 Mich. 504, 84 N. W. 1070; Eastman v. Richard, 29 Can. Sup. Ct. 438 (semble). Compare Schilling v. Klein, 41 111. App. 209. In Hammon v. Douglas, 50 Mo. 434, it is said that if a yearly rent is received from the overholding ten- ant, there is a tenancy from year to year, while if a monthly rent is so received, he is a tenant from month to month. This it is conceived, is the proper rule, subject, however, to evidence of a different intention. 76 See ante, § 16 c (1). 1484 HOLDING OVER BY TENANT. § 210 both parties has been spoken of, not as creating a periodic ten- ancy, such as one from year to year or from month to month, but as creating a new tenancy for another year,''"'' while occa- sionally the new tenancy is said to be for the same period as the original term, without reference to whether it be greater or less than a year.'^^ It has also been stated that if a tenant for a term less than a year holds over, aaid the landlord accepts or demands rent, there is a new demise for another term of the same dura- tion, while if the original term is for a year or more, there is created a tenancy from year to yearJ^ The doctrine that a tenancy from year to year is to be inferred from a holding over and the payment of rent has been applied, not only when the holding is after the expiration of the term of a lease, but also when a lease is given by a tenant for life, and, after its termination by his death, rent is accepted by the remainder- man from the tenant previously holding under the lease.^*^ In Maine and Massachusetts, where the statutory provision that no estate or interest, unless created by writing, shall have greater force and effect than a tenancy at will, is construed as excluding the inference of a tenancy from year to year from the payment of a yearly rent,^^ the new tenancy, ordinarily to be inferred from the actions of the parties in case of a holding over, is at will, and terminable as such by either party.^^ In a number of states the character of the tenancy created by such a holding over with the landlord's consent is determined 77 Cole V. Sanford, 77 Hun, 198, R. 85; Doe d. Tucker v. Morse, 1 59 N. Y. St. Rep. 763, 28 N. Y. Supp. Barn & Adol. 365; Oakley v. Monck, 358; Bateman v. Maddox, 86 Tex. L. R. 1 Exch. 159. See Bernstein v. 546, 26 S. W. 51; Baltimore & O. R. Demmert, 73 N. J. Law, 118, 62 Atl. Co. V. West, 57 Ohio St. 161, 49 N. 187. B. 344; Zippar v. Reppy, 15 Colo. si See ante, § 14 b (2) (a), at note 260, 25 Pac. 164; Usher v. Moss, 50 480. Miss. 208. 82 Wheeler v. Cowan, 25 Me. 283; 78 Rothschild V. Williamson, 83 Kendall v. Moore, 30 Me. 327; Frank- Ind. 387; Bollenbacker v. Fritts, 98 lin Land, Mill & Water Co. v. Card, Ind. 50. 84 Me. 528, 24 Atl. 960; Perry v. 79Prickett v. Ritter, 16 111. 96; Rockland & R. Lime Co., 94 Me. 325, Field V. Herrick, 14 111. App. (14 47 Atl. 534; Emmons v. Scudder, 115 Bradw.) 181; Kleespies v. McKenzie, Mass. 367; Walker Ice Co. v. Ameri- 12 Ind. App. 404, 40 N. B. 648. can Steel ft Wire Co., 185 Mass. 463, eo Doe d. Martin v. Watts, 7 Tenn. 70 N. E. 937, 210 Kew tenancy by agreement. 148c by the language of a local statute. These statutes are referred to in the notes.^^ 83 In California (Civ. Code, § 1945) it is provided that if rent is paid and accepted after the end of the term, the parties are presumed to have renewed the lease on the same terms and for the same time, not exceeding "one month vfhen the rent is payable monthly, nor in any case" one year. ,- In Mon- tana (Rev. Codes 1907, § 5230), North Dakota (Rev. Codes 1905, § 5531), and South Dakota (Rev. Civ. Code 1903. § 1437), there are like provisions, in the latter two states the words in quotation marks being oi^iitted. See Banbury v. She- rin, 4 S. D. 88, 55 N. W. 723. The next section of the California Code provides that a hiring of real prop- erty, for a term not specified by the parties, is deemed to be renewed, as stated in the previous section, at the end of the term implied by law, unless one of the parties gives no- tice to the other of his intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceed- ing one month. Like provisions are found in North Dakota and South Dakota. Presumably, by "the term implied by law" is meant the term arising under the previous section by rea^ion of the holding over and payment and acceptance of rent. In Iowa, under the statute pro- viding that any person in possession of land with the assent of the owner is presumed to be a tenant at will until the contrary is shown (ante, § 13 a (6), note 393), a tenant hold- ing over and paying rent is, in the absence of stipulation to the con- trary, merely a tenant at will. O'Brien v. Troxel, 76 Iowa, 760, 40 N. W. 704; German State Bank v. Herron, 111 Iowa, 25, 82 N. W. 430. In Kansas (Gen. St. 1905, § 40-52) and Oklahoma (Rev. St. 1903, § 3321), when a tenant under a lease for one or more years continues to occupy with the landlord's assent, he is to be deemed a tenant from year to year. See "Ware v. Nelson, 4 Kan. App. 258, 45 Pac. 923. Minnesota Rev. Laws 1905, § 3333, provides that when a tenant of urban real estate holds over without an ex- press contract, no tenancy for any other period than the shortest inter- val between the times of payment of rent under the terms of the original lease shall be implied. This provision was held to be inapplicable when the original lease gave the tenant an option to renew. Quade v. Fitzloff, 93 Minn. 115, 100 N. W. 660. As to what constitutes "an express con- tract," see Stees v. Bergmeier, 91 Minn. 513, 98 N. W. 648. As to recovery, by one holding as tenant from month to month under the statute, for injuries to his goods caused by the landlord's negligence, see Slafter v. Siddall, 97 Minn. 291, 106 N. W. 308. In Missouri, where the statute provides that an oral lease of a building in a city shall create a tenancy from month to month (ante, § 14 c [2], note 508), a tenant of such a building, holding over. Is a tenant from month to month. Hammon v. Douglas, 50 Mo. 442; Drey v. Doyle, 28 Mo. App. 249; Smith V. Smith, 62 Mo. App. 596. Nevada Comp. Laws, § 3827, pro- vides that in case of a lease for a 1486 HOLDING OVER BY TENANT. §210 Any inference, from the payment and receipt of rent, or from other circumstances, as to the character of the tenancy created, upon a holding over with the landlord's consent, is one of fact, and may be excluded by evidence that another class of tenancy was intended, the rule in this regard being the same as in the case of an original entry under a ''general letting. "«■*• ^^ Thus the lease may expressly determine the character of the holding in case the tenant fails to vacate at the end of the term,^^ or the holding over may be by virtue of a provision for renewal in the lease.^^ So a new agreement between the landlord and the tenant as to the future holding necessarily excludes any contrary inference,^^ as when the landlord acquiesced in the tenant's proposal to re main but a limited time,^^ or when the landlord told the tenant that if he held over it must be as tenant from month to month.^'^ It has been held that the fact that a tenant, holding over after a term of several years, pays as rent for a month a sum different month, or for any term less than a year, if the tenant holds over by the landlord's consent, the tenancy shall be construed to be a tenancy from month to month, or a tenancy for such term less than a year, as the case may be. In Wisconsin Rev. St. 1898, § 2187, the statute provides that "if a ten- ant for a year or more shall hold over after the expiration of his term, he may, at the election of his land- lord, be considered a tenant from year to year upon the terms of the original lease." This is stated to be in confirmation of the common-law rule. Brown v. Kayser, 60 Wis. 1, 18 N. W 523. See ante, § 209. 84,85 See ante, § 14 b (2). sepappe v. Trout, 3 Okl. 260, 41 Pac. 397. So in McDevitt v. Lam- bert, 80 Ala. 536, 2 So. 438, where the lease gave the lessee the "option to continue to occupy by the month," the lessee, holding over, became ten- ant from month to month. 8T Montgomery v. Hamilton Coun- ty Com'rs, 76 Ind. 362, 40 Am. Rep. 250. See Harty v. Harris, 120 N. U. 408, 27 S. E. 90. ss Secor v. Pestana, 37 111. 525; Johnson v. Foreman, 40 111. App. 456; Walker v. Githens, 156 Pa. 178, 27 Atl. 36; Insurance & Law Bldg. Co. V. National Bank, 71 Mo. 58;Gunso- lus v.. Dormer, 54 Wis. 630, 12 N. W. 62. 89 Lally V. New Voice, 128 111. App. 455; Montgomery v. Willis, 45 Neb. 434, 63 N. W. 794. So, where the overholding tenant's offer of a cer- tain rent was refused, but, to his proposal to pay that rent till he found another place, the landlord made no reply, and the property was placed by the latter in the hands of his agent to rent to others, it was held that there was a tenancy in accordance with the tenant's pro- posal till he found another place. Hoffman v. McCollum, 93 Ind. 326. no Shipman v. Mitchell, 64 Tex. 174. And see Brownell v. Welch. 91 111. 523; Oarrner v. Dakota County Com'rs, 21 Minn. 33. s 210 NEW TENANCY BY AGREEMENT. 14S7 from that payable monthly under the original lease, renders the new holding one from month to month, on the theory, it seems, that, there being nothing to show that these payments are not of a monthly rent, they are to be regarded as such, while in the ordinary case of the payment of sums similar to those stipulated for in the instrument of lease, the payments are to be construed with reference thereto, and consequently as being installments of yearly rent, if such was the character of the pay- ments under the lease.^^ It has been said that a holding over pending a treaty for a new lease creates a tenancy at will,'^^ and this accords with the ordi- nary rule that a permissive holding without the payment of a periodic rent constitutes such a tenancy, provided there is no payment of a periodic rent during the negotiations. Permission to hold until the tenant could remove his fixtures has been re- garded as creating a tenancy at will,^^ and such a tenancy has been regarded as arising when the landlord told the tenants hold- ing over, before accepting any payments from them, that he would not consent to a tenancy from year to year, but that they should remain as they were on the expiration of the lease.^'* Conceding that the new tenancy, created by a permissive hold- ing over, is in the particular case periodic, that is, from period to period, it can, by the weight of authority, be determined only by notice, as in the case of a similar periodic tenancy otherwise 91 Blumenberg v. Myres, 32 Cal. 93, ecuted, it was held that the fact 91 Am. Dec. 560; Fall v. Moore, 45 that he subleased the adjoining Minn. 515, 48 N. W. 404. That the premises to the former occupant rent, being an annual rent, is paid thereof, and paid the rent named in monthly, is immaterial. See Bern- the new agreement, although the stein V. Demmert, 73 N. J. Law, 118, payment was under protest because "62 Atl. 187. the adjoining premises needed re- 92 Doe d. Hollingsworth v. Sten- pairs, sufficiently showed an entry nett, 2 Esp. 717; Grant v. White, 42 under the new agreement, so as to Mo. 285; City of Dubuque v. Miller, make him tenant at will rather than 11 Iowa, 583; Jackson v. Miller, 7 tenant at sufferance, and so to re- Cow. (N. Y.) 747. quire notice before he could quit. Where a tenant held over, having Emmons v. Scudder, 115 Mass. 367. made an agreement with the land- 93 Landsberg v. Tivoli Brew. Co., lord for the leasing to him of the 132 Mich. 651, 94 N. W. 197. premises previously leased to him, oi idington v. Douglas, 6 Ont. Law and also of adjoining premises. Rep. 266. which lease was not, however, ex- 1488 HOLDING OVER BY TENANT. §210 ereated.^^ In one state at least, however, a different view has been taken, to the effect that such a new tenancy can be termi- nated without notice, a distinction being made between a tenancy from year to year arising from holding over and one arising otherwise.*^^ There are in England several decisions as to the mode of determining the time at which the notice to quit must, in such a case, expire.^'"''^ c. Terms of new tenancy. The new tenacy created by the mutual assent of the landlord and tenant is presumptively o.n the same terms as the original lease, so far as these are applicable to the new tenancy.io'^ So it has been held that a proviso for re- 95Hately v. Myers, 96 111. App. 217; Wilgus v. Lewis, 8 V-o. App. 336; Hall v. Myers, 43 Md. 446; Shirk V. Hoffman, 57 Minn. 230, 58 N. W. 990; Critclifield v. Remaiey, 21 Neb. 178, 31 N. W. 687; Baltimore Dental Ass'n v. Fuller, 101 Va. 627, 44 S. E. 771; Allen v. Bartlett, 20 W. Va. 46; Brown v. Kayser, 60 Wis. 1, 18 N. W. 523. In Wisconsin the statute now provides that the ten- ancy from year to year created by holding over may be terminated by thirty day's notice at the end of any year. Rev. St. 1898, § 2187. See Peehl v. Bumbalek, 99 Wis. 62, 74 N. W. 545. 96 Gladwell v. Holcomb. 60 Ohio St. 427, 54 N. E. 473, 71 Am. St. Rep. 724. In Adams v. Cohoes, 127 N. Y. 175, 28 N. E. 25, likewise, it seems to be held that the tenant holding over becomes a tenant from year to year, with the right, however, to term- inate his tenancy at the end of any year without notice. But the case is by no means clear. Rohrbach v. Crossett, 46 N. Y. St. Rep. 426, 19 N. Y. Supp. 450, seems to be to the same effect. And see Thompson v. Chich, 92 Hun, 510, 72 N. Y. St. Rep. 212, 37 N. Y. Supp. 59. If the ten- ancy from year to year, created by holding over, is terminable without notice, it is practically equivalent to a tenancy for another year, it seems. The tenancy thus arising from a holding over by consent is not with- in the statute providing that leases of land in New York City not speci- fying the duration of the tenancy shall run until the first day of May. Laimbeer v. Taller, 21 N. Y. St. Rep. 380, 4 N. Y. Supp. 588; Id., 125 N. Y. 725, 26 N. E. 756; Furman v. Galan- opulo, 92 N. Y. Supp. 730. 97-99 See ante, § 200, at notes 182- 186. 100 Morgan v. Harrison [1907] 2 Ch. 137; In re Canada Coal Co., 27 Ont. 151; Isaacs v. Ferguson, 26 New Br. 1; Wolffe v. Wolff, 69 Ala. 549, 44 Am. Rep. 52G; Singer Mfg. Co. V. Sayre, 75 Ala. 270; Belding v. Texps Produce Co., 61 Ark. 377, 33 S. W. 421; Zippar v. Reppy, 15 Colo. 260, 25 Pac. 164; McKinney v. Peck, 28 111. 174; Goldsborough v. Gable. 152 111. 594, 38 N. E. 1025; Ridgeway V. Hannum, 29 Ind. App. 124, 64 N. E. 44; De Young v. Buchanan, 10 Gill & J. (Md.) 149, 32 Am. Dec. 156; Dimock v. Van Bergen, 94 Mass. (12 Allen) 551; Weston v. Weston, 102 §210 NEW Tli^NANCY BY AGRliiEMBNT. Ksy entry on nonpayment of rent attaches to the tenanoy created by the permissive holding over,^^^ and likewise a covenant to repair^*^- or improve. ^"^^ It w^as held that the rent could not be presumed to be the same vi'hen the lease, which was for a year, provided for several .collateral matters to be dooie by each party, which could not be performed in a subsequent year,^*^'^ and when the lease provided that, as compensation for the use of the land, the lessee should reduce it from wild land to a state of cultivation, this not being applicable to the new tenancy, since there was no more wild land, the tenant was regarded as liable for the value of the use and occupation.io^ And it has been suggested that a change in the condition of the premises, rendering them less valuable, might rebut the presumption that the rent is the same.^^^ The tenant's covenant to put the premises in the same state of repair at the end of the term as at the beginning has beeai regarded as not binding him to put them in such a state of re- pair at the end of the new tenancy.^^'^ If the original lease specifically provides different terms in case of continuance of the tenancy, the original terms obviously cannot apply thereto.^^^ Mass. 514; Brown v. Magorty, 156 Mass. 209, 30 N. E. 1021; Faxon v. Jones, 176 Mass. 138, 57 N. E. 360; Gardner v. Dakota County Com'rs, 21 Minn. 83; Love v. Law, 57 Miss. 596; Coatsworth v. Ray, 52 N. Y. Supp. 498; Baylies v. Ingram, 84 App. Div. 360, 82 N. Y. Supp. 891; Id., 181 N. Y. 518, 73 N. E. 1119; Pflum V. Spencer, 123 App. Div. 742, 108 N. Y. Supp. 344; Finney v. St. Louis, 39 Mo. 177; Haeussler v. Hol- man Paper-Box Co., 49 Mo. App. 631; Moore v. Harter, 67 Oliio St. 250, 65 N. E. 883; Williams v. Foss-Arm- strong Hardware Co., 135 Wis. 280, 115 N. W. 803; Phillips v. Monges, 4 Whart. (Pa.) 226; Wilson v. Alex- ander, 115 Tenn. 125. 88 S. W. 935; Amsden v. Atwood, 69 Vt. 527, 38 Atl. 263; Allen v. Bartlett, 20 W. Va. 46. 101 Thomas v. Packer, 1 Hurl. & N. 669; Baylies v. Ingram, 84 App. Div. 360, 82 N. Y. Supp. 891; Id., 181 N. Y, 518, 73 N. E. 1119. 102 Digby V. Atkinson, 4 Camp. 275. See Haeussler v. Holman Paper-Box Co., 49 Mo. App. 631; Hett v. Zan- zen, 22 Ont. 414. Frederick v. Dan- iels, 74 Conn. 710, 52 Atl. 414, ap- pears, however, to be C07itra. 103 Slafter v. Siddall, 97 Minn. 291, 106 N. W. 308. 104 Diller v. Roberts, 13 Serg. & R. (Pa.) 60, 15 Am. Dec. 578. 105 Martin v. Hamersky, 63 Kan« 360, 65 Pac. 637. 106 Whittenmore v. Moore, 39 Ky. (9 Dana) 315. 107 Johnson v. St. Peter, Hereford, 4 Adol. & E. 520. 108 See City of Plattsmouth v. New L. and Ten. 94. 1490 HOLDING OVER BY TENANT. §210 "While, in the absence of anything to show the contrary, the courts assume, as a matter of law apparently, that the new holding is subject to the terms of the original lease, so far as applicable, the question whether it is so subject becomes one of fact if there is any evidence that the new holding is on different terms.^^^ The holding over may be upon a rent different from that be- fore reserved, though otherwise the terms are the samc^^*^ A contract for a different rent has been held to arise when the landlord notifies the tenant that if he holds over he must pay an increased rent, and the tenant makes no reply and does hold over, this being regarded as an acceptance of the landlord's proposition.^ 11 If, however, the tenant protests against such increase, there can, by the cases generally, be no implication of assent by him, and no greater rent cau be demanded than before.ii^ Hampshire Sav. Bank (C. C. A.) 139 Fed. 631. 100 City of Thetford v. Tyler, 8 Q. B. 95; Hyatt v. Griffiths, 17 Q. B. 505; Elgar v. Watson, Car. & M. 494; Crommelin v. Thiess, 31 Ala. 412, 70 Am. Dec. 499; Goldsbrough v. Gable, 152 111. 594, 38 N. B. 1025; Hitt V. Greiser, 71 Mo. App. 206; Dil- ler V. Roberts, 13 Serg. & R. (Pa.) 60, 15 Am. Dec. 578. 110 Kelly V. Patterson, L. R. 9 C. P. 681; Digby v. Atkinson, 4 Camp. 275. 111 Roberts v. Hayward, 3 Car. & P. 432; RTithman v. Brandenburg, 7 Colo. 480, 4 Pac. 788; Griffin v. Knisely, 75 111. 411; Galloway v. Ker- by, 9 111. App. (9 Bradw.) 501; Easton v. Mitchell, 21 111. App. 189; Rand v. Purcell, 58 111. App. 228; Gardner v. Dakota County Com'rs, 21 Minn. 33; Columbia Brew. Co. V. Miller, 124 Mo. App. 384, 101 S. W. 711; Hunt v. Bailey, 39 Mo. 257; Hulett v. Nugent, 71 Mo. 131; Despard v. Walbridge, 15 N. Y. 874; Colt V. Planer, 51 N. Y. 647; Mack V. Burt, 5 Hun (N. Y.) 28; Frost V. Akron Iron Co., 12 Misc. 348, 33 N. Y. Supp. 654; Thorp V, Philbin, 15 Daly, 155, 3 N. Y. Supp 939; Moore v. Harter, 67 Ohio St 250, 65 N. E. 883; Pittsfield v. Ewing 6 Phila. (Pa.) 455; Williams v. Foss Armstrong Hardware Co., 135 Wis 280, 115 N. W. 803; Amsden v. Blais dell, 60 Vt. 386, 15 Atl. 332; Apple ton Waterworks Co. v. Appleton, 132 Wis. 563, 113 N. W. 44; Hilliard v. Genmell, 10 Ont. 504. The doctrine referred to cannot apply, it has been decided, if before giving such notice the landlord has made a new lease extending the term, even though such lease does not name any rent. Schickedantz v. Rincker, 75 Neb. 312, 106 N. W. 441. In Murphy v. Little, 69 Vt. 261, 37 Atl. 968, it was held that the land- lord, by accepting and receipting for payments at the old rate, waived the notice of the proposed increase in rent. 112 Meaher v. Pomeroy, 49 Ala. 146; Hunt V. Bailey, 39 Mo. 257; Gallagher v. Himelberger, 57 Ind. 63; Atkinson v. Cole, 16 Colo. 83, 26 Pac. 815; Canning v. Fibush, 77 Cal. 196, 19 Pac. 376; Lasher v. Heist, 12(i §211 LIABILITY IN USE AND OCCUPATION. I49I Occasional decisions and dicta to the effect that even if the tenant objects to the payment of the increased rent, he will be liable therefor so long as he retains possession/^^ ^^j^.^ objectionable, as in effect imputing to the tenant an intention which he has ex- pressly disclaimed, and as enabling the landlord to fix a penalty of any amount for a wrongful holding over by the tenant.^ ^^ It m-ight indeed be questioned whether, in the ordinary case, the tenant, by retaining possession even without objection to the pro- posed increase of rent, intends to indicate assent to such increase. The courts have, however, assumed that he does so intend. It may be remarked that, if holding over the term after such a notification of increase in rent is to be regarded as showing an ac- ceptance of the la.ndlord's proposition to remain in possession at that rent, the agreement should bind the landlord as well as the tenant. In one case, however, it appears to have been decided that the landlord is not bound by the terms of his notice though the tenant does hold over.^^^ § 211. Liability in use and occupation. We have thus far considered the liability of the tenant to the landlord upon the theory that there was a continuation of the tenancy with the landlord's consent, either with or without the tenant's consent. We will now consider the liability of the tenant to the landlord in case he holds over without the land- lord's assent, and the landlord does not assert that a new ten- ancy has been created. There is at common law no liability for rent on the part of a 111. App. 82; De Young v. Buchanan, v. Walcott, 57 Tenn. (10 Heisk.) 22, 10 Gill & J. (Md.) 149, 32 Am. Dec. the tenant was regarded as liable 156. And see Mitchell v. Clary, 20 for the increased rent for the whole Misc. 594, 46 N. Y. Supp. 446, where year, though he objected that the the tenant showed his nonassent by rent was too great, he paying, how- Immediately leaving. ever, a month's rent at the rate nam- 113 There are dicta to that effect ed, and expressing a willingness to in Stees v. Bcrgmeier, 91 Minn. -513, pay it until he could get another 98 N. W. 648; Moore v. Harter, 67 suitable place. Ohio St. 250, 65 N. B. 883, and a die- ii4 See McClung v. McPherson, 47 tum, if not a decision, in Griffin v. Or. 73, 81 Pac. 567, 82 Pac. 13. Knisely, 75 111. 411. See comments 115 Lautman v. Miller, 158 Ind. 382, on this latter case in Galloway v. 63 N. E. 761. Kerby, 9 111. App. 501. In Brinkley 1492 HOLDING OVER BY TENANT. §211 tenant wrongfully holding over, a tenant at sufferance. This, it has been said,% ' ' because it was the folly of the owners to suffer them to continue in possession after the determination of the preceding estate, "^^^ but a more satisfactory reason is that an obligation to pay rent is the result of a contract or reservation, and there is ordinarily no coatract to pay rent after the term, nor a reservation of rent then to accrue.^i^ It is only by means of a new agreement between the landlord and the tenant, in effect a renewal of the lease, or by means of the application of the doc- trine, before referred to, of the landlord's option, as against the tenant wrongfully holding over, to assert a renewal of the ten- ancy ,^^8 that the tenant can be subjected to liability as for rent accruing after the expiration of the original term. It has been decided in a number of cases that a tenant holding over without permission is liable in assumpsit for use and occu- pation for such period as he so holds over,ii^ and a like view has 116 Finch's Case, 2 Leon. 143; 1 Cruise's Dig., tit. 9, c. 2, § 5. 11' Hogsett V. Ellis, 17 Mich. 351. 118 See ante, § 209. 119 Ibbs V. Richardson, 9 Adol. & B. S49; Jennier v. Clegg, 1 Moody & R. 213; Bayley v. Bradley, 5 C. B. 396; Leigh v. Dickerson, 15 Q. B. Div. 60; Christy v. Tancred, 9 Mees. & W. 438; Hogsett v. Ellis, 17 Mich. 357; Meaher v. Pomeroy, 49 Ala. 146; Pitkin County v. Brown, 2 Colo. APP. 473, 31 Pac. 525; Aheel v. Radcliff, 13 Johns. (N. Y.) 297, 7 Am. Dec. 377; Smith V. Singleton, 71 Ga. 68; Stuart V. Hamilton, 66 111. 253; Van Brunt V. Pope, 6 Abb. Pr. (N. S., N. Y.) 217; Harris v. Foster, 97 Cal. 292, 32 Pac. 246. 33 Am. St. Rep. 187; Williams v. Ladew, 171 Pa. 369, 33 Atl. 329; Bacon v. Brown, 9 Conn. 334: Pish v. Ryan, 88 111. App. 524; L^utman v. Miller, 158 Ind. 382, 63 N. E. 761; Longfellow v. Longfellow, 54 Me. 240; SchwoPbel v. Fugina. 14 . N. D. 375, 104 N. W. 848; Chambers V. Ross, 25 N. J. Law (1 Dutch.) 293; Poole V. Engelke, 61 N. J. Law, 124, 38 Atl. 823. See post, § 306 d. Occasional statements that the hold- ing over tenant is liable for rent (Chapin V. Foss, 75 111. 280; Ven- tura Hotel Co. V. Pabst Brew. Co., 33 Ky. Law Rep. 149, 109 S. W. 354; Forbes v. Smiley, 56 Me. 174) pre- sumably mean little, if anything, more than that he is liable in use and occTipation. In one case a ten- ant who held over was made liable for the value of the use and occu- pation when the circumstances pre- vented the exercise by the landlord of the option to hold him as tenant for another year. San Antonio v. French, 80 Tex. 575, 16 S. W. 4C0, 26 Am. St. Rep. 763. But in Herter v. Mullen, 52 App. Div. 325, 65 N. Y. Supp. 279, the court appears to have decided that in such case the tenant is liable for rent, as distinct from the value of the use and occupation, a view not concurred in by one of the judges. In Coleman v. Fitzgerald Bros. §211 LIABILITY IN USE AND OCCUPATION. 149c been asserted with reference to a lessee under a life tenant who holds over after the death of the latter.120 g^ch a liability has been imposed when the tenant himself was not in pos- session, but the holding over was by a subtenant with- out the tenant's consent/21 though if the landlord accepts the Brew. Co., 29 Misc. 349, 60 N. Y. Supp. 460, the court held that a land- lord could not recover rent for one month, during which the tenant held over after the three years term, if after that month the landlord made a lease to another, in effect constru- ing the statement, frequently found, that the landlord has the option to treat the tenant holding over as a tenant for another term, or as a trespasser (ante, § 209), as exclud- ing any other alternative, such as to hold him liable as tenant for the time during which he actually holds over. So in Macklin v. McNetton, 30 Misc. 749, 63 N. Y. Supp. 438, it is decided that a tenant holding over cannot be made liable in use and occupation, the landlord having the option to treat him as a tenant for another year, or as a trespasser. In Merrill v. Bullock, 105 Mass. 486, it is said, per Gray, J., that, at common law, a tenant at sufferance, occupying by permission of the land- lord, was liable, upon an implied con- tract, in assumpsit for use and occu- pation." But, it is submitted, there is no such thing as a "tenant at suf- ferance, occupying by permission of the landlord." One is a tenant at sufferance because he occupies with- out permission. See ante, § 15 a. In view of the context, it may be that by "occupying by permission" is meant commencing occupation, that is, taking possession, by per- mission. i»» Guthmann v. Vallery, 51 Neb. 824, 71 N. W. 734, 66 Am. St. Rep. 475; Hoagland v. Crum, 113 111. 365, 55 Am. Rep. 424. In Mackey v. Rob- inson, 12 Pa. 170, where one having control over the premises for his life only made a lease for years, it was held that the lessees, holding over after his death, were tort feasors, and consequently not liable in debt for rent, or even in assumpsit, but that they might have been held liable for mesne profits in ejectment. See post, § 212, and compare post, § 306 d, at note 105. 121 Henderson v. Squire, L. R. 4 Q. B. 170; Harding v. Crethorn, 1 Esp. 57; Ibbs v. Richardson, 9 Adol. & E. 849; McKenzie v. City of Lexington, 34 Ky. (4 Dana) 129; Dimock v. Van Bergen, 94 Mass. (12 Allen) 551; Bless V. Jenkins, 129 Mo. 647, 31 S. W. 938. According to Schilling v. Holmes, 23 Cal. 227, 83 Am. Dec. Ill, it would seem that a tenant might be so liable even when he had been evicted by a wrongdoer, and was so unable to return the premises at the end of the term. In that case he was held liable under such circumstances for double rent, under the statute. But when the lessee was deprived of the possession by the military authori- ties during the term, without his consent, he was held not to be liable in case they held over, though dur- ing the term he received rent from them, indirectly, through lessees of other parts of the building. Con- stant V. Abell, 36 Mo. 174. 1494 HOLDING OVER BY TENANT. §211 subtenant as his tenant the former tenant is discharged.^ 22 Jq such an action the tenant is liable for the reasonable value of the use and occupation of the premises, and, while presumably this would be regarded as prima facie equal to the rent reserved by the lease, in the absence of evidence to the contrary, it may be either more or less, as may appear proper on the evidence. ^^^'^^^ In IMassachusetts and Ehode Island it is provided by statute that "tenants at sufferance in possession of land or tenements shall be liable to pay rent therefore for such time as they may occupy or detain the same."^25 n i-i^g been held that a tenant at will who becomes a tenant at sufferance by reason of a lease or other con- veyance made by the landlord,^ 26 jg^ under such a statute, liable to the lessee or grantee alone,^^! ^nd is not liable even to him unless he, the tenant, has notice of the conveyance.^^^ Such a statute does not, it has been decided, apply as against one who originally entered otherwise than under the plaintiff or one under whom the plaintiff claims, and who wrongfully retains possession after his interest has come to an end.^29 Xn Kansas a 122 Harding v. Crethorn, 1 Esp. 57; Dimock v. Van Bergen, 94 Mass. (12 Allen) 551. 123,124 Hogsett V. Ellis, 17 Mich. 367; City of Detroit v. Gleason, 116 Mich. 564, 74 N. W. 880; Poole v. Engelke, 61 N. J. Law, 124, 38 Atl. 823; Van Brunt v. Pope, 6 Ahb. Pr. (N. S., N. Y.) 217. In Clapp v. Noble, 84 111. 62, it was held that the rent named in the lease fixes con- clusively the liability of the tenant holding over in defiance of the land- lord. In Dubuque Lumber Co. v. Kimball, 111 Iowa, 48, 82 N. W. 458, the tenant holding over was held liable for the rent fixed in the lease, and not for that named in a subse- quent lease, but there it seems that the tenant held over from the first by permission. In Ambrose v. Hyde, 145 Cal. 555, 79 Pac. 64, it was held that there could be no recovery in use and occupation against the overholding tenant by reason of the lack of evi- dence as to the value of the use and occupation or as to the rent reserved on the expired lease. 125 Massachusetts Rev. Laws, c. 129, § 3; Rhode Island Gen. Laws 1896, c. 269, § 2. 126 See ante, § 15 b, at note 586. 12" Bunton v. Richardson, 92 Mass. (10 Allen) 260; Cofran v. Shepard, 148 Mass. 582^ 20 N. E. 181, 3 L. R. A. 257, 12 Am. St. Rep. 601. 12s Dixon V. Smith, 181 Mass. 218, 63 N. E. 419. Under this statute, if a tenant at will continues to occupy the prem- ises after a portion thereof has been conveyed by his landlord, he becomes tenant at sufferance as to all, and is liable to his former landlord for the reasonable value of the use and occupation of such portion as is still retained by the latter. Emmes v. Feeley, 132 Mass. 346. 120 Merrill v. Bullock, 105 Mass, 1 212 LIABILITY AS TORT FEASOR. 1495 tenant holding over has been regarded as within a statute,i3o providing that an occupant without special contract of any land shall be liable for rent to any person entitled thereto.i^i § 212. Liability as tort feasor. If the tenant fails to relinquish possession at the end of the term,i32 or his subtenant fails to do so,^^~^ he is liable to the land- lord in damages for the resulting injury to the latter. Thus it has been held that the landlord may recover for the loss of an op- portunity to let to another/^3 ^nd likewise the expense of a suit to recover possession.i^^ But usually the damages sought and allowed are the value of the land for use or rental for the time during which the landlord was kept out of possession/ ^5 the action for damages being thus in effect one for mesne profits.i^s It seems to be immaterial, for most purposes, whether the landlord brings an action of tort for damages from holding over, or an action for use and occupation, which, as stated in the preceding section, he has the right to bring. The lease may provide for liquidated damages, in a reasonable amount, in case the tenant holds over.^^i j^^ an express stipu- 486; Carpenter v. Allen, 189 Mass. is* Bramley v. Chesterton, 2 C. B. 246, 75 N. E. 622. (N. S.) 592. The tenant is so liable 130 Gen. St. 1901, § 3864. though it was a subtenant who kept 131 Benton v. Beakey, 71 Kan. 872, the landlord out. Henderson v. 81 Pae. 196. Squire, L. R. 4 Q. B. 170. i32Bramley v. Chesterton, 2 C. B. "s Buhman v. Nickels (Cal. App.) (N. S.) 592; Canning v. Fibush, 77 95 Pac. 177; Barnett v. Feary, 101 Cal. 196, 19 Pac. 376; Snideman v. Ind. 95; Keegan v. Kinnare, 123 111. Snideman, 118 Ind. 162, 20 N. E. 723, 280, 14 N. B. 14; Butterfield v. Kirt- 6 Am. Rep. 460; Russell v. Fabyan, ley, 115 Iowa, 207, 88 N. W. 371. 34 N. H. 225; Moore v. Davis, 49 N. i36 Sargent v. Smith, 78 Mass. (12 II. 45. Gray) 426. And see Russell v. KIl- 132a Henderson v. Squire, L. R. 4 lion, 7 Phila. (Pa.) 110; Henderson Q. B. 170. V. Squire, L. R. 4 Q. B. 170. That an 133 Stoddard v. Waters, 30 Ark. action for mesne profits will lie, see 156. But it has been decided that Comyn, Landl. & Ten. 510; Adams, damages cannot be allowed for the Ejectment (Waterman's Ed.) at pp. failure to relinquish possession till 383, 446; 1 Stephen's Commentaries after the most favorable season for (7th Ed.) 294. Compare ante, § 15a, letting it, it not appearing that the at note 560. landlord could have leased it even ist Poppers v. Meagher, 148 HI. If sooner returned. Watrigant v. 192, 35 N. E. 805. There the rent Dufort, 28 La. Ann. 892. reserved was §500 per month, with 1496 HOLDING OVER BY TENANT. § 213 lation that the tenant shall in that case pay double rent has as such been sustained.^^* A provision of this character, it has been held, imposes the liability on the tenant, although the holding over is not by him, but is by one to whom he has transferred the possession.139 The landlord cannot recover liquidated damages for holding over, as provided by the lease, if he has recognized the overholding tenant as rightfully in possession, as by accepting payments from the tenant as of rent, i^° or even by demanding the payment of rent.^"*^ § 213. Liability for double rent or value. a. After notice or demand by landlord. By St. 4 Geo. 2, c. 28, § 1, it is enacted that "in case any tenant or tenants for any term of life, lives or years," or other person or persons in pos- session of any lands, tenements or hereditaments, by, from or under, or by collusion with, such tenant or tenants, shall "will- fully hold over" after the determination of such term or terms, and "after demand made, and notice in writing given," for de- livering the possession thereof by his or their landlords or lessors, or the person or persons to whom the remai.iider or reversion be- longs, his or their agents lawfully authorized, such person or persons so holding over shall, "for and during the time he, she and they shall so hold over," pay to the person or persons kept out of possession, "at the rate of double the yearly value of the lands, tenements and hereditaments so detained, for so long time as the same are detained." This statute is in force in at least one state/ 42 and has been re-enacted in another,!^^ and in others there are statutes to an approximately similar effect.^^^ In some a provision for the payment of ?30 142 See Alexander's British Stat- per day in case of holding over, and utes in force in Maryland, this was regarded as valid, testi- 143 2 New Jersey Gen. St. p. 19121, mony showing that the premises § 27. were worth $7,000 a year. i*^ nunois, Kurd's Rev. St. 1905, 13S Walker v. Engler, 30 Mo. 130. c. 80. § 2 (If tenant, or person hold- 139 Kerr v. Simmons, 8 Mo. App. ing under or in collusion with him, 43^ willfully holds over after expiration 140 Chicago Theological Seminary of term and after written demand V. Chicago Veneer Co., 94 111. App. for possession, he is liable for 492_ double the yearly value for the time 141 Kelso V. Crilly, 85 111. App. 568. of such holding over) ; Iowa Code §213 LIABILITY FOR DOUBLE RENT OR VALUE. 1497 states the statrtte makes the tenant wrongfully holding over liable, not for double the yearly value of the premises, but for double rent,i4^ and occasionally the statute makes the tenant holding over liable for treble rent.^^® 1897, § 2989 (Tenant willfully hold- ing ov^r after term and after notice to quit, liable for double the rental value during the time of holding over) ; MissouH Rev. St. 1899, § 4106 (Substantially same as Illinois); New York Real Prop. Law, § 200 (Substantially same as Illinois, ex- cept that holding over must be after expiration of thirty days from service of demand for possession. Liable in addition for special damages); South Carolina Civ. Code 1902, § 2411 (Tenant, or person in collusion with him, holding over after term- ination of his estate, and after de- mand in writing for possession, for the space of three months after such demand, shall forfeit double the value of the use of the premises). The sum recoverable is to be calcu- lated from the time of demand, and not from the expiration of the three months. Reeves v. McKenzie, 1 Bailey Law (S. C) 497. Wisconsin St. 1898, § 2186 (Tenant, or person in posses^.ion under or by collusion with him, willfully holding over after demand made and one month's notice in writing, liable at rate of double the yearly value for time of holding over, and also for all special damage ) . nr.AlaMma Code 1907, § i2TS (One entering under lease, who un- lawfully retains possession after end of term and demand to sur- render, liable for double agreed rent au'^ for special damages) ; Arkansas, Kirby's Dig. § 4(596 (Tf any tennnt, or person coming into possession un- der or by collusion with him, shall willfully hold over after the term- ination of the term and thirty days' written notice requiring possession, he shall pay double the yearly rents for the time of such holding over) ; Delaicare Rev. Code 1893, p. 866, § 5 (Tenant holding over, or person in collusion with him so doing, after notice by landlord, is liable for double rent) ; Florida Gen. St. 1906, § 2235 (If tenant refuse to give up possession at end of lease, landlord may demand double the monthly rent, and may recover it at the end of every month, or in the same pro- portion for a longer or shorter time) ; Georgia Code 1895, § 3124 (If tenant holds over after his term ex- pires, the landlord may recover double rent for such time) ; Ken- tucky St. 1903, § 2293 (Tenant whose terra expires at time certain and who refuses to deliver possession, and tenant who, having agreed to dis- pense with notice, refuses to deliver possession when demanded, shall pay double the rent he would otherwise have been boimd to pay, computing from the time he should have de- livered possession) ; Mississippi Code 1906, § 2883 (Where tenant, being lawfully notified by his landlord, shall fail or refuse to quit, he shall thenceforward pay double the rent which he would otherwise have paid). lie Calif ornia Civ. Code, § 3345 (if tenant, or person in collnsirsn with him, holds over after demand and one month's notice in writing re- 1498 HOLDING OVER BY TENANT. §213 Statutes of this character have been regarded as penal, and therefore to be strictly construed.^ ^''^ Accordingly, the English statute, which specifies tenancies for "life, lives or years," has been construed not to apply to a weekly tenancy, ^^^ nor, ap- parently, to a tenancy from quarter to quarter,^ ^^ though it does apply to a tenancy from year to year.^^*^ A statute referring to a holding over "after the expiration of the term" has been held not to apply to a holding over after a forfeiture enforced by the land- lord.151 The holding over must, by the terms of most of the statutes, be willful, and a holding over under a reasonable mistake as to his rights does not make the tenant liable.^^^ The holding over is not other than willful merely because the tenant cannot vacate with- out great inconvenience and injury to his business.^^^ It has been held that a tenant is not liable under such a statute when the holding over is by a subtenant,^^'^ nor, apparently, when quiring the possession, such person must pay treble rent during liis coiitiniiance in possession p.fter such notice). See Watson v. Whitney, 23 Cal. 378; Tewksbury v. Whitney, 25 Cal. 265; Kower v. Gluck, 33 Cal. 402. Montana Rev. Codes 1907, § 6076 (same). 14^ Lioyd V. Rosbee, 2 Camp. 453 ; Robinson v. Learoyd, 7 Mees. & VV. 54; Chapman v. Wright, 20 111. 120. But in Beynroth v. Mandeville, 68 Ky. (5 Bush.) 584 it is said that "the statute allowing double rent is not so much penal as compensatory, not so much to punish a delinquent tenant as to indemnify a disappoint- ed landlord for the vexations and losses resulting from a tortious de- tention of that which it may be often very important otherwise to dispose of, and from, also, expensive litiga- tion. There is no reason, therefore, for any other than a rational and consistent interpretation of the stat- ute." Per Robertson, J. That the action for double rent is in contract, see State v. Helms, 101 Wis. 280, 77 N. W. 194. As between the common-law forms of action, debt is the ?^)propriate remedy. See 1 Chitty, Pleading (7th Ed.) 112. 148 Lloyd V. Rosbee, 2 Camp. 453. 149 Wilkinson v. Hall, 3 Bing. N. C. 508. isoRyal V. Rieh, 10 East, 48. A contrary view was adopted in Nix- dorff V. Wells, 4 Cranch, C. C. 350, Fed. Cas. No. 10,280. 151 Stuart V. Hamilton, 66 111. 253. 152 Swinfen v. Bacon, 6 Hurl. & N. 184; Poole v. Warren, 8 Adol. & B. 582; Belles v. Anderson, 38 111. App. 128. But where the claim of a right to hold over was based on a local custom plainly not applicable, the tenant was held liable for double value. Hirst v. Horn, 6 Mees. & W. 393. 153 Driver v. John W. Edrington & Co., 74 Ark. 12, 84 S. W. 783. 154 Rands v. Clark, 19 Wkly. Rep. 48. S 213 LIABILITY FOR DOUBLE RliiNT OR VALUE. 1499 by his cotenant, without his assent.i^^ In one state, however, the tenant was held liable for double rent when he could not return the possession to his landlord owing to his expulsion by a wrongs doer.i^^ The English statute refers to a holding over ''after a demand made and notice in writing given, "^^^ but this does not neces- sitate a demand in addition to a valid notice to quit-^^s The notice or demand need not include a statement that double value or rent will be claimed.i^^ The notice or demand may either be -iven before the expiration of the term, requiring the tenant to relinquish possession at such expiration,^ «<^ or may be given after the term, provided the landlord has done no act in the mean- time involving an acknowledgment of a continuance of the ten- ancy, but if the demand is made after the term, the landlord can, under the English statute, recover double value calculated from the date of the demand only and not from the expiration of the term.^^^ Under a state statute which omitted the words of the English stPtute "for so long time as the same are retained," or equivalent words, but made the tenant holding over in terms liable^ for "double the amount of the annual rent agreed to be paid, it was held that he was so liable for double the full annual rent, how- ever short the period during which he held over.i«2 A provision making the tenant holding over liable for "three 1.5 Drapery. Crofts, 15 Mees.&W. a question for the jury. Beynroth ^gg V. Mandeville, G8 Ky. (5 Bush) 584. li^e Schilling V. Holmes, 23 Cal. i.^ Messenger v. Armstrong, 1 227. 83 Am. Dec. 111. Term R. 53; Wilkinson - CoHey^ 15TAS to necessity of demand un- Burrow, 2694; Johnstone v. Hudle- der particular statutes, see Salas v. stone, 4 Barn. & C. 922; Page v. Davis, 120 Ga. 95, 47 S. E. 644; Wil- More, 15 Q. B. 684. lis V Hairell, 118 Ga. 906. 45 S. B. ido Ullman v. Herzberg, 91 Ala. 794; Chapman v. Wright, 20 111. 120; 458, 8 So. 408, U L. R. A. 619, 24 Am. B-^Ue^ V. Anderson, 38 111. App. 128; St. Rep. 929. Thompson v. Marsh, 67 Ky. (4 leo Cutting v. Derby, 2 Wm. Bl. Bush) 423. It has been held that 1075. under a statute providing that the lei Cobb v. Stokes, 8 East, 358. tenant shall be liable for double rent i- Ullman v. Herzberg 91 Ala. if he "shall refuse to deliver pos- 458. 8 So. 408. 11 L. R. A. 619, 24 Am session." a formal demand is not St. Rep. 929; Lvkes v. Schwarz. 91 necessary, and the tenant's conduct Ala. 461, 8 So. 7L may amount to a refusal, this being 1500 HOLDING OVER BY TENANT. § 213 tim«s the value of the rents which may have accrued" has been held to refer, not to the rent reserved, but to the rental value, which, in the case of a renting on shares, may be calculated with- out reference to the value of the crops actually raised by the tenant.^ ^^ In determining the value, under the English statute, it has been said that the rental value of the premises as a whole, with all incidental rights, easements and appurtenances, is to be con- sidered, but in the same ease it was determined that this did not justify the inclusion of the value of power supplied by the landlord to the tenant under the lease, this not being within the meaning of the phrase "lands, tenements or hereditaments. "^^^ The landlord may waive his right to recover under the stat- ute,i6^ but it has been held that he does not, by agreeing with the tenaait that the latter may retain the premises for a limited time without incurring this liability, waive the right to assert it in case the tenant holds over thereafter.iss Whether the acceptance ot single rent after the right to double value has accrued is a waiver of the latter right is, it has been said, a question of fact.i*^'^ That the landlord recovered judgment on an appeal bond given by the tenant in an action of forcible entry and detainer, and accepted payment of the judgment, was held not to bar recovery of double rent under the statute.^''* The right to recover double value under the English statute exists although the landlord has already elected to treat the overholding tenant as a trespasser by bringing ejectment against him.^^^ And the recovery may be against one other than the person to whom the notice and demand were given, as when there was a transfer of the possession after the service of the notice.i"^*^ It has been decided that a lessee in reversion, not being the landlord of the prior lessee,^^i cannot recover under the English statute.i'^2 1G2 Hendrick v. Cannon, 5 Tex. 24S. i6? Alexander v. Loeb, 230 111. 454, 104 Robinson v. Learoyd, 7 Mees. & 82 N. E. 833. ytf 48. i6'j Soulsby V. Neving, 9 Ea^.t, 310. 1C5 Rawlinson v. Marriott, 16 Law iToLake v. Smith, 1 Bos. & P. (N. T. (N S.) 207. R"> 174; Schilling v. HolmeP, 23 Cal. iwUllman v. Herzberg, 91 Ala. 227, 83 Am. Dec. 111. 458, 8 So. 408, 11 L. R. A. 619, 24 -'^ See ante, § 146 d, at notes 22, Am. St. Rep. 929. 23. i67Ryal V. Rich, 10 East, 48. it2 Blatchford v. Cole, 5 C. B. (N. § 213 LIABILITY FOR DOUBLE KENT OR VALUEJ. l50l If the statute provides for double rent or value in the ease of a "willful" holding over, the complaint must, it has been de- cided, allege that the holding over was "willful," in order to authorize a recovery to such an extent.^ '^^ b. After notice by tenant. It was provided by St. 11 Geo. 2, e. 19, § 18, that in case any tenant or tenants shall give notice of an intention to quit the premises, at a time mentioned in such notice and shall not accordingly deliver up the possession at the time named in such notice, the said tenant or tenants, or their representatives, shall pay double the rent which should otherwise have been paid, such double rent to be sued for and recovered at the same times and in the same manner as the single rent could have been recovered. A substantially similar enactment is to be found in a number of states. ^'^^ In two states at least the tenant's liability in such case is for treble rent.^'^^ The English statute applies to any tenancy, although created merely by parol,^''^ provided the tenancy be such as the tenant has power to terminate by notice.^'''' If the tenancy is one which expires at a certain time by the terms of the demise, the giving of notice by the tenant "is a work of supererogation, which fur- nishes no rights and creates no liabilities. "^'^^ S.) 514. That the lessor may, In York, 111 App. Div. 362, 97 N. Y. spite of such lease in reversion, re- Supp. 1062. cover double rent, see Alexander v. i^* Arkansas. Kirby's Dig. 1904, Loeb, 230 111. 454, 82 N. E. 833. In § 4694; Delaioare Rev. Code 1893, p. the latter case there was a provi- 866; District of Columbia Code 1901, sion that the possession should not § 1224; Illinois, Hurd's Rev. St. pass to the second lessee so long as 1905, c. 80, § 3; Kentucky St. 1903, the possession could not be delivered § 2283; Mississippi Code 1906, § to him by renson of the first lessee, 2883; Missowi Rev. St. 1899, § 4104 and this is referred to as a basis for New Jersey. 2 Gen. St. p. 1921, § 28 the decision. Its presence would New York Real Prop. Law, § 199 seem, however, to be immaterial. Soxcth Carolina Civ. Code 1902, § That the lease in reversion does not -^24. prevent recovery by the lessor of ^'^ California Civ. Code, § 3344; ,..,,,, 4.. 14.,^ Montana Rev. Codes 1907, § 6076. liquidated damages as stipulated for i"6 Timmins v. Rowlinson, 3 Bur- a holding over by the prior lessee, ., -.„ row, 1603. see Thomas v. Wightman, 129 111. i.. johnstone v. Hudlestone, 4 ^PP- 3*^5. Barn. & C. 922. iT3Eaison v. Mulligan, 191 N. Y. its Regan v. Fosdick, 19 Misc. 489, 306. 84 N. E. 75; Stevens v. New 43 N. Y. Supp. 1102. 1502 HOLDING OVER BY TENANT. § 214 The notice must be a valid notice, sufficient to terminate the tenancy.! "9 Consequently, a notice by the tenant that he will quit upon a contingency will not render him liable if he fails to quit on the happening of the contingency ,!»° and a notice that he will quit "about January 10th or 15th" has likewise been held not to subject the tenant to such a liability .^s^ A holding over by one who entered under the tenant, after the giving of the notice by the latter, is sufficient to subject the latter to the double liability .^^^ § 214. Cotenant lessee holding over. In case one holding under a lessee is himself a tenant in com- mon of the reversion, as when one tenant in common takes a lease of the undivided interest of the other tenant,i83 or when the lessee of an undivided interest thereafter acquires the other un- divided interest in fee, a question may arise as to the status of such tenant in case he retains possession after the term named in the lease, that is, whether he is to be regarded as a tenant hold- ing over, or as a tenant in common rightfully in possession as such. It has in England been decided that in such case the possession of such cotenant is, as to the undivided half interest not belonging to him, prima facie that of a tenant at sufferance, and that he is as such liable in use and occupation,i84 q;^^ there are cases in this country which make a cotenant so continuing in possession liable for rent or in use and occupation, upon a presumption, apparently, that his continuance in possession is by force of a renewal or ex- tension of the prior lease.^^s in two states, however, the contin- ued possession of such cotenant is presumed to be based on his right as tenant in common,!S6 and he has consequently in one of 1T9 Johnstone v. Hudlestons, 4 iss Chapin v. Foss, 75 111. 28'J; Barn. & C. 922. Harry v. Ham', 127 Ind. 91, 26 N. 180 Farrance V. Elkington, 2 Camp. E. 562; O'Connor v. Delaney, 53 591. Minn. 247, 54 N. W. 1108, 39 Am. 181 Pitkin V. Lloyd, 47 Mo. App. St. Rep. 601; Carson v. Broady, 56 280. Neb. 648, 77 :'. W. 80, 71 Am. St. 182 Morris v. Burton, 1 Houst. Rep. G91; Clayton v. McCay, 143 Pa. (Del.) 213. 225, 22 Atl. 754. 183 See ante, § 71 c. ^^^ See McKay v. Mumford, 10 184 Leigh V. Dickeson, 15 Q. B. Wend. (N. Y.) 351, 25 Am. Dec. 566. I>iv. 60. In Mumford v. Brown, 1 Wend. (N. § 215 PROCEEDING TO RECOVER POSSESSION. 1503 such states been held not to be liable in use and occupation/ ^'^ and likewise, such continued possession has been decided not to involve a holding over for the purpose of giving an option to the other cotenant or cotenants to hold hirn for another term, this view being asserted even though he was c.nly one of several lessees, all of whom constituted a partnership, and such partnership, and not he alone, retained the possession. ^ss § 215. Proceeding to recover possession. Originally, at common law, the proper form of action by a landlord to recover possession from the tcJiant was a writ of entry ad terminum qui praeteriU.^^^ Subsequently, upon the introduction of the action of ejectment, this became the recognized mode of recovery by the landlord. In England and in most of the states, statutes have now been enacted providing for proceedings of a summary character on the part of the landlord to recover pos- session from the tenant. An action of ejectment brought by a landlord against his tenant does not differ from such an action when brought by any other person, and a discussion of the law of ejectment will not here be attempted. The general charac- teristics of a summary proceeding by a landlord to recover pos- session will be discussed in a subsequent chapter.^ ^'^'^ Equity haa no jurisdiction to expel a tenant at the suit of the landlord.i^<^ A transferee of the entire reversion has no doubt the same right to recover possession from the tenant as has the lessor. ^^^ In the case, however, of a transfer of an undivided interest in the rever- Y.) 52, 19 Am. Dec. 461, it was de- 369, 52 N. E. 1097, 43 L. R. A. 667; cided that the person remaining in Id., 178 N. Y. 391, 70 N. E. 913. possession under such circumstan- is9 See Stearns, Real Actions (2d ces was not liable for double rent as Ed.) 129. a tenant holding over. In Rockwell i89a See post, chapter XXVIII. V. Luck, 32 Wis. 70, it was decided i9o Torrent v. Muskegon Booming that the cotenant remaining in pos- Co., 22 Mich. 354; Blain v. Bveritt, session was presumed to be In as 36 Md. 73. See Montague v. Hood, cotenant, but that this presumption 78 S. C. 222, 58 S. E. 767. was rebutted by the evidence in that 191 S?e Green v. Missouri Pac. R. particular case. Co., 82 Mo. 653, to the effect that the 187 Dresser v. Dresser, 40 Barb, purchaser at a foreclosure sale of (N. Y.) 300; McKay v. Mumford, 10 the reversion may sue for posses- Wend. (N. Y.) 351, 25 Am. Dec. 566. sion after the expiration of the term. 188 Valentine v. Healey, 158 N. Y. 1504 HOLDING OVER BY TENANT. § l> 15 sion, all those interested in the reversion should, it seems, or- dinarily join in the proceeding to recover possession.i92 One to whom a lease in reversioni»3 of the premises is made, being the person entitled to possession on the expiration of the prior term, would seem to be the proper person, rather than the landlord, to bring an action of ejectment to recover the posses- sion from a tenant holding over.i^^ There is, however, one de- cision that the landlord may bring such action against the over- holding tenant in spite of the reversionary lea.se,!^^ and so far as in any jurisdiction the lessor may be under an obligation to put his lessee in possession, as against a third person holding without right,!''^^ he should, it seems, be given the right of recovering the possession from another wrongfully withholding it. Whether a summary proceeding may be brought against an over holding tenant by a landlord who has made a lease in reversion, or whether it may be brought by the lessee in reversion, or whether it may 192 In Holt V. Martin, 51 Pa. 499, in Blatchford v. Cole, 5 C B. (N. S.) it was decided that the lessor could 514, wTiich case involved the ques- recover the premises although he tion of the right of the lessee in re- had conveyed an undivided interest version to recover double value in the reversion, the tenant not hav- against a prior tenant wrongfully ing attorned to the grantee, and the holding over (see ante, note 172). latter having done no act "to sever These dicta were as ft)llows: "The the possession." tenant by his contract engages to 193 See ante, § 146 d. give up possession to the landlord, 194 In Gardner v. Keteltas, 3 Hill As against him, therefore, the land- (N. Y.) 330, 38 Am. Dec. 637, it is lord must be the person entitled to said by Nelson, C. J., in reference the possession;" and, "as regards to this question, that "as to the rem- the tenant, the person entitled to edy by ejectment, the suit must be possession is the landlord, whether brought by the lessee, the right of for the purpose of enjoying it himself entry being in him alone at the or giving the possession to a new time." In Gazzolo v. Chambers, 73 tenant." A right in the landlord to 111. 75, it s likewise said that, in maintain an action for possession, such a case, "the landlord is not en- in spite of the lease in reversion, is titled to possession and can main- recofrnized in general terms in King tain no action to recover the prem- v. Reynolds, 67 Ala. 229; Hammond ises. The right of immediate pos- v. Jones, 41 Ind. App. 32, 83 N. E. cession is alone in the lessee, and he 257; Vincent v. Defield, 98 Mich. 84, must bring the action." 56 N. W. 1104. 195 Fox V. Macaulay, 12 U. C. C. losa See ante, §§ 88, 182 a (2), P. 298. The decision is in terms note 815. based on the dicta of Cockburn, C. J., . 216 FORCIBLE RESUMPTION OF POSSESSION. 15C5 be brought by either, is properly a question of the construction of the statute authorizing such proceedings.^^^ § 216. Forcible resumption of possession by landlord. ^ a General considerations. Not infrequently the landlord, up- on the failure of the tenant to relinquish possession when his right thereto expires, has undertaken to resume possession by force, and the question of the nature of the liabilities to which the landlord may thereby subject himself has been the subject of considerable controversy. He is, under the English statutes of forcible entry and detainer, and under the local statutes ot some states, liable to a criminal prosecution in such a case, his right to possession being no justification for his disturbance of the public peace.19^ And in many of the states, the tenant can, m case of such forcible entry by the landlord, maintain an action to recover possession of the premises under the statutes of forcible entry and detainer, it being usually considered that one cannot defend such an action by showing that he was entitled to the possession which he thus forcibly took.^^^ a more difficult ques- tion arises, however, when the tenant undertakes to assejt a pe- cuniary liability in damages on the part of the landlord for thus taking possession. There are several decisions to the effect that even though the forcible entrv or forcible expulsion would otherwise be ground for recovery' of damages, the lease may, by a special provision authorizing such acts as against a tenant holding over, relieve the landlord from liability.^^^ There might, however, be some msee post, § 273 n. ^ case the tenant resisted Ms re- loTSee Y B. 9 Hen. 6, f. 19, pl. 12; moval of the latter's furniture and 1 Hawkins Pleas of the Crown, c. the landlord sought to overcome 64 ? 3; McClain. Criminal Law, §§ that resistance. ^ 836-841; Edwick v. Hawkes. 18 Ch. -^ See Vinson v. Flynn^ 64 ArK^ Div 199- Turner v. Meymott, 1 453, 43 S. W. 146, 46 S. W. 186 39 Sng 158; Taunton v. Costar, 7 L. R. A. 415; Phelps - ^-dolph, Term R 431; Low v. Elwell, 121 147 111. 335. 35 N. E. 243; Scott v Wil- mT.? 309 23 Am Rep 272; Wood v. lis, 122 Ind. 1, 22 N. E. 786; Smith H t 4 Johns (N.\) 313; Man- v. Reeder. 21 Or. 541, 28 Pac 890^15 ning V Brown, 47 Md. 506; Souter v. L. R. A. 172; and cases cied 13 Am Codman. 14 R. I. 119. 51 Am. Rep. & Eng. Enc^ Law (^^/^^);\^' Jf ' Qfti Tn Com V Haley, 86 Mass. (4 19 Cyclopedia Law & Proc. li^t). 1, en, 3lt^e lardlord was heM to ... Goshen .. People^ ^i,^"'-™' te Uab!e CTlminally tor an assault 44 Pac. 503; Page v. D« Puy, 40 ID. Xj and Ten. 95. 1506 HOLDING OVER BY TENANT. §216 question whether a license to use force in contravention of the provisions of the forcible entry and detainer acts is valid.^o^ b. Liability for entry on the land. The eases are usually to the effect that the mere entry on the land by the reversioner in such ease, although forcible, does not constitute a trespass, giv- ing a right of action in damages, in view of the well recognized rule that a plea of liberum tencmentum or title in the defendant is a good defense to an action of trespass quare clausum fregit. The fact that the statutes make such an entry a criminal offense, and give the person entered upon a right to recover the possession of which he has thus been deprived, cannot be regarded as au- thorizing a recovery of damages on account of such entry.-^^ That the reversioner, after entering, commits some wrongful act, does not make him a trespasser ah ijiitio, since the principle of the Six Carpenters' Case-*^^ applies only wlien there is a special authority given by the law to do some particular act which would, apart from such special authority, be a trespass, and not to the case of one exercising a right which appertains to all per- sons,203 such as that of the owner of land to enter thereon-^o* 506; Fabri v. Bryan, 80 111. 18^; Kavanagh v. Gudge, 7 Man. & G. 316. 200 See Spencer v. Commercial Co., 30 Wash. 520, 71 Pac. 53; Edwick v. Hawkes, 18 Ch. Dlv. 199. And com- pare Fifty Associates v. Rowland, 59 Mass. (5 Cush.) 214. 201 Taunton v. Costar, 7 Term K. 431; Argent v. Durrant, 8 Term R. 403; Turner v. Meymott, 1 Bing. 158; Harvey v. Brydges, 14 Mees. & W. 437; Burling v. Read, 11 Q. B. 904; Pollen v. Brewer, 7 C. B. (N. S.) 371; Meriton v. Coombes, 9 C. B. 787; Beddall v. Maitland, 17 Ch. Div. 174; Beattie v. Mair, 10 L. R. Ir. 208; Vinson v. Flynn, 64 Ark. 453, 43 S. W. 146, 46 S. W. 186, 29 L. R. A. 415; Tribble v. Frame, 30 Ky. (7 J. J. Marsh.) 599, 23 Am. Dec. 439; Manning v. Brown, 47 Md. 506; Moore v. Mason, 83 Mass. (1 Allen) 406; Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272; Smith v. Detroit Loan & BIdg. Ass'n, 115 Mich. 340, 73 N. W. 395, 39 L. R. A. 410, 69 Am. St. Rep. 575; Fuhr v. Dean, 26 Mo. lie, 69 Am. Dec. 484; Krevet v. Meyer, 24 Mo. 107 (but see Emer- son V. Sturgeon, 59 Mo. 404); Sterl- ing V. Warden, 51 N. H. 217, 12 Am. Rep. 80; Weeks v. Sly, 61 N. H. 89; State V. Morgan, 59 N. H. 322; Wilde V. Cantillon, 1 Johns Cas. (N. Y.) 123; Hyatt v. Woods, 4 Johns (N. Y.) 150; Livingston v. Tanner, 14 N. Y. (4 Kern.) 64 (dictum); Overdeer v. Lewis, 1 Watts & S. (Pa.) 90, 37 Am. Dec. 440; Willoughby v. North- eastern R. Co., 32 S. C. 410, 11 S. E. 339; Rush v. Aiken Mfg. Co., 58 S. C. 145, 36 S. E. 497, 79 Am. St. Rep. 836; Souter v. Codman, 14 R. I. 119, 15 Am. Rep. 364. 202 8 Coke, 146 a. 20,1 Johnson v. Hannahan, 1 Strob. Law (S. C.) 313. See Esty v. Wil- §216 FORCIBLE RESUMPTION OF POSSESSION. 1507 Though, as above stated, the weight of authority is otherwise, there are occasional decisions to the effect that a forcible entry by the reversioner does make him liable in trespass or its equivalent for breaking the close,-°^ this view being ordinarily based on the theory that, since this is illegal as being forbidden by the statutes of forcible entry and detainer, there must be a right to recover damages on account thereof, while occasionally the fact that there is a summary proceeding provided by statute for the recovery of possession is referred to as showing a legislative in- tent that he shall not take possession by force.-°^ mot, 81 Mass. (15 Gray) 168; Turner V. Footman, 71 Me. 218; 1 Smith's Leading Cases (8th Am. Ed.) at p. 263. 20 1 Johnson v. Hannahan, 1 Strob. Law (S. C.) 313. 203 Larkin v. Averj', 23 Conn. 304; Mason v. Hawes, 52 Conn. 12, 52 Am. Rep. 552; Entleman v. Hagood, 95 Ga. 390, 22 S. E. 545; Reeder v. Purdy, 41 111. 279; Brock v. Berry, 31 Me. 293; Thiel v. Bull's Ferry Land Co., 58 N. J. Law, 212, 33 Atl. 281 (Only nominal damages recoverable. And compare Mershon v. Williams, 62 N. J. Law, 779, 42 Atl. 778); Whitney v. Brown, 75 Kan. 678, 90 Pac. 277, 121 Am. St. Rep. 446; Dus- tin V. Cowdry, 23 Vt. 631; Griffin v. Martel, 77 Vt. 19, 58 Atl. 788. The earlier Vermont case is to a consid- erable extent based on a misreading of the old authorities on the English statutes of forcible entry, as is shown in the article in 4 Am. Law Rev. hereafter referred to. Hillary V. Gay, 6 Car. & P. 284, a nisi prius decision by Lord L3-ndhurst, so far as it is to be regarded as a decision that trespass quare clausum will lie in such case, must be regarded as overruled by the later English deci- sions. In Fort Dearborn IjOdge v. Klein, 115 111. 177, 3 N. E. 279, 56 Am. Rep. 133, it is decided that a peaceable entry will not entitle the tenant to maintain trespass quare clausum, it being said, however, that a forcible entry will do so. But the law in that state is that even a peaceable entry by the person entitled to pos- session is within the forcible entry and detainer statute (Phelps v. Ran- dolph, 147 111. 335, 35 N. E. 243), and since the view that trespass quare clausum will lie is based chiefly on the fact that there is a violation of such statute, there seems some in- consistency. In Emerson v. Sturgeon, 59 Mo. 404, it is decided that the plea of liberum tenem,entum is no defense to an action of trespass quare claus- um, and this seems in effect to over- rule the cases cited ante, note 301, deciding that the tenant forcibly ejected by the landlord cannot bring that action. 206 Mason v. Hawes, 52 Conn. 12, 52 Am. Rep. 552; Enthelman v. Ha- good, 95 Ga. 390, 22 S. E. 545; Thiel v. Bull's Ferry Land Co., 58 N. J. Law, 212, 33 Atl. 281. That the ten- ant has delivered the key to the landlord, the tenant retaining the possession, gives the landlord no right in this regard which he would 1508 HOLDING OVER BY TENANT. §216 c. Liability for injury to tlie person. In jurisdictions in wliieh the forcible entry on land is itself regarded as constituting a cause cf action in trespass quarc clausum, any violence employed against the tenant or his family could, no doubt, be alleged in aggravation of damages,207 though ordinarily there would be a separate count inserted for the assault. But in most jurisdictions, as above stated, tliere can be no recovery as for trespass on the land in such case, and the question arises whether there is nevertheless a dis- tinct right of recovery for an assault made upon the person of the tenant or a member of his family in entering on the premises or in expelling such person therefrom. In the numerous cases above referred to as denying any right of recovery for the entry on the land, there is no suggestion of a distinct cause of action arising from the use of force against the tenant, provided such force is no greater than is necessary for the purpose of effecting an en- trance, or of expelling the tenant if he refuses to leave, and there are cases which in terms deny any such liability on the part of the landlord.208 It is said that 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 unlawful resistance, has been obliged to resort to in order to make otherwise not have. Griffin v. Mar- 890, 15 L. R. A. 172 (dictum); Sout- tel, 77 Vt. 19, 58 Atl. 788. er v. Codman, 14 R. I. 119, 51 Am. 207 Sedgwick, Damages, § 929. Rep. 364; Dawson v. Marsh, 74 See Taylor v. Cole, 1 H. Bl. 555; Conn. 498, 51 Atl. 529. That the Davison v. Wilson, 11 Q. B. 890. tenant mistakenly believes that he 208 Harvey v. Brydges, 14 Mees. & is entitled to possession is imma- W. 437; Blades v. Higgs, 10 C. B. terial in this regard. Allen v. Keily, (N. S.) 713; Burling v. Read, 11 Q. 17 R. I. 731, 24 Atl. 776, 16 L. R. A. B. 904; Meriton v. Coomhes, 9 C. B. 798, 33 Am. St. Rep. 905. For an 787; Vinson v. Flynn, 64 Ark. 453, admirable discussion of the whole 43 S. W. 146, 46 S. W. 186, 39 L. subject in support of the view that R. A. 415; Stearns v. Sampson, 59 the tenant has no such right of Me. 568. 8 Am. Rep. 442; Manning action, and a review of the authori- v. Brown, 47 Md. 506; Jackson v. ties up to that time, see an article Farmer, 9 Wend. (N. Y.) 201; Sterl- by Joseph Willard, Esq., in 4 Am. ing V. Warden, 51 N. H. 217, 12 Am. Law Rev. 429, referred to by Gray, Rep. 80 (semble); Low v. Elwell, C. J., in the case cited in the next 121 Mass. 309, 23 Am. Rep. 272; note, as rendering superfluous fur- Stone v. Lahey, 133 Mass. 426; ther consideration of the cases. Smith V. Reeder. 21 Or. 541, 28 Pac. §216 FORCIBLE RESUMPTION OF POSSESSION. 15C9 his entry effectual, "209 ^nd the same principle would be applicable to the force incidental to an entry against the tenant's resistance. But there are English cases which support a dilTerent view, to the effect that, while the law does not support an action against the reversioner for the forcible entry on his own land, it will recognize the statutes of forcible entry and detainer to the extent of holding that a possession obtained by force in defiance of these statutes does not justify acts such as would otherwise be ground for a re- covery in damages ■,-^^ and to the same effect, apparently, are cases in this country, which assert that, if the reversioner enters peace- ably, he may thereafter expel the tenant or remove his furniture, thereby implying that he cannot do so if he enters otherwise than peaceably .211 There are also authorities to the effect that an entry is necessarily forcible if followed by a forcible expulsion of the person in possession, although the actual entrance on the premises was effected without the use of force.212 There seems, indeed, no substantial distinction between the case of one who "slips in" without opposition, and then forcibly expels the person in pos- session, and that of one who effects an entrance by forcibly over- coming resistance. The latest of the English cases referred to adopts this view, that the landlord is liable for a forcible expul- sion, even though there was no force in the actual entry, since this is made forcible by the subsequent expulsion,2i3 and there are 200 Per Gray, C. J., in Low v. El- N. H. 10, 53 Am. Dec. 228. And see well, 121 Mass. 309, 23 Am. Rep. 272. Wliittaker v. Perry, 38 Vt. 107. 210 Newton v. Harland, 1 Man. & 212 Bacon's Abr., Forcible Entry G. 644; Beddall v. Maitland, 17 Ch. (B), citing Dalton's Justice, 299; Div. 174; Edwick v. Hawkes, 18 Cb. Lambarde's Eirenarcba, chap. 4, p. Div. 199. The decision in the 142 (Ed. 1610), quoted in PoUociv, first case was in effect by a divided Torts (5th Ed.) p. 359; Seitz v. court, and in the last two, by one Miles, 16 Mich. 456; Willard v. War- judge alone (Fry, J.). This view is ren, 17 Wend. (N. Y.) 257; Winter- approved in Lightwood, Possession field v. Stauss. 24 Wis. 394. of Land, 141, and is referred to, ^'' Edwick v. Hawkes, 18 Ch. Div. .,, , 1 ,. „„„„! ,r. 199. supra, where Fry, J., says that without approval or disapproval, m ' ^ ' /' ' *; ^ . „ „^„ o,-„ II the operation of the statute is Pollock, Torts (5th Ed.) 358, 359. « ^ ^ .,, . . .^■ ' confined to the mere act of getting 211 Stearns v. Sampson, 50 Me. 568, ^^^^ ^^^ ^^^,^^^^^ ^^^ ^^^^^ ^^ ^^^ 8 Am. Ren. 442; Smith v. Detroit property in question peaceably, the Loan & Bldg. Ass'n, 115 Mich. 340, statute is evidently not adequate to 73 N. "W. 395, 39 L. R. A. 410, 69 Am. meet the evil which it was intended St. Rep. 575; Whitney v. Swett, 22 to repress." 1510 HOLDING OVER BY TENANT. §216 several cases in this country which, without considering the mode of entry, decide that the reversiojier is liable in damages if he forcibly expels the tenant.-^^ For any excess of force used in expelling the tenant the rever- sioner would, no doubt, in all jurisdictions, be liable in dam- ages,2i5 and the possibility that the jury might find that such ex- cessive force was used seems to render the forcible eviction of a tenant holding over his term a somewhat precarious proceeding in any jurisdiction. An entry in the absence of the tenant and his family has been regarded as a peaceable entry, which gives a valid possession to the reversioner,2i6 even though the entry involves the breaking open of doors,"^'^ so as to entitle him to use force in excluding 214 Entelman v. Hagood, 95 C^a. 390, 22 S. E. 545; Reeder v. Purdy, 41 111. 279; Joaes v. Pereira, 13 La. Ann. 102; Boniel v. Block, 44 La. Ann. 514, 10 So. S69; Flaherty v. Andrews, 2 E. D. Smith (N. Y.) 529; Marchand v. Haber, 16 Misc. 322, 37 N. Y. Supp. 952; Wamsganz v. Wolff, 86 Mo. App. 205 (semble) ; Thiel v. Bull's Ferry Land Co., 58 N. J. Law, 212, 33 Atl. 281 (but see Mershon V. Williams, 62 N. J. Law, 779, 42 Atl. 778); Rush v. Aiken Mfg. Co., 58 S. C. 145, 36 S. E. 497, 79 Am. St. Rep. 836 (semble) ; Larkin v. Avery, 23 Conn. 304; Spencer v. Commer- cial Co., 30 Wash. 520, 71 Pac. 53. And see Sharp v. Kinsman, 18 S. C. 108, where it it is said that tJie landlord has no right to eject the overholding tenant. 215 Vinson v. Flynn. 64 Ark. 453, 43 S. W. 146, 46 S. W. 186, 39 L. R. A. 415; Sampson v. Henry, 28 Mass. (11 Pick.) 379, 30 Mass (13 Pick.) 36; Whitney v. Swett, 22 N. H. 10, 53 Am. Dec. 228: Gregory v. Hill, 8 Term R. 299. 216 Davis V. Burrell. 10 C. B. 821; Winn v. State. 55 Ark. 360. 18 S. W. 375; Marsh v. Bristol, 65 Mich. 37S. 32 N. W. 645; Todd v. Jackson, 26 N. J. Law (2 Dutch.) 525; Smith v. Detroit Loan & Bldg. Ass'n, 115 Mich. 340, 73 N. W. S?5, 39 L. R. A. 410, 69 Am. St. Rep. 575; Bliss v. Johnson, 73 N. Y. 529, 29 Am. Rep. 500: Mussey v. Scott, 32 Vt. 82, 76 Am. Dec. 151; Sage v. Harpending, 49 Barb. (N. Y.) 166, 34 How. Pr. 1. But Wilder v. House, 48 111. 279, is contra, and in Mason v. Hawes, 52 Conn. 12. 52 Am. Rep. 552, it was even held that the landlord was liable in damages though he entered in the tenant's absence and removed the latter's furniture carefully, and did not prevent the latter from re- entering. 21T Mershon v. Williams, 62 N. J. Law, 779, 42 Atl. 778; Hoske v. Gentzlinger, 87 Hun, 3, 33 N. Y. Supp. 747; Mussey v. Scott, 32 Vt. 82, 76 Am. Dec. 151. That breaking open a door is not a forcible entry, see Smith v. Reeder, 21 Or. 541, 28 Pac. 890, 15 L. R. A. 172; and Williams v. Taperell, 8 Times Law R. 241, contains a dic- tum to that effect by Wills, J. Entry by unlocking a door, in the absence of the tenant and his family. § 216 FORCIBLE RESUMPTION OF POSSESSION. ISH the tenant afterwards seeking to re-enter, without thereby sub- jecting himself to liability in damages. There are statements to be found, however, to the effect that an entry by breaking open a door is within the forcible entry and detainer statute,2i8 and, under such a view, a possession so obtained would seem not to justify the forcible exclusion of the tenant, in jurisdictions in which it is held that, because of such statutes, a forcible entry will not justify his forcible expulsion.^i^ In jurisdictions where the landlord's right to expel the tenant forcibly is recognized,- ^o the former has, no doubt, the right to forcibly exclude the latter, if he attempts to re-enter after the lajidlord has taken possession in the tenant's absence.^^^ d. Liability for removal of chattels. The question of the land- lord 's liability in damages for removal of the tenant's personal chattels on the premises would ordinarily be determined by the same considerations as his liability for injuries to the person. If he is regarded as being liable in trespass quare clausum, the re- moval of the chattels would presumably be a matter of aggrava- tion. And if he would be liable for the forcible removal of the tenant or members of his family by force, he would, it seems, be liable for the removal of the tenant's chattels.222 is not a forcible entry. Smith v. De- referred to approvingly in Mershon troit Loan & Bldg. Ass'n, 115 Mich. v. Williams, 62 N. J. Law, 779, 42 340, 73 N. W. 395, 39 L. R. A. 410, Atl. 778. That trespass may' be 69 Am. St. Rep. 575. See Com. Dig., maintained by a landlord who re- Forciblc Entry (A3). entered by forcing open a door 21s Anonymous, 2 Rolle, 2; Com. against the tenant returning, see. Dig., Forcible Entry (A 2). And also, Mussey v. Scott, 32 Vt. 82, 76 see Willard v. Warren, 17 Wend. (N. Am. Dec. 151. Y.) 257. In Whittaker v. Perry, 38 220 See ante, at note 208. Vt. 107, it is apparently the view of 221 See Tribble v. Frame, 30 Ky. the court that the breaking in of (7 J. J. Marsh.) 599, 23 Am. Dec. the door when the tenant is in the 439; Freeman v. Wilson, 16 R. I. 524, house is a forcible entry. 17 Atl. 921. 219 In Todd V. Jackson, 26 N. J. 222 Mason v. Hawes, 52 Conn. 12, Law (2 Dutch.) 525, it is decided 52 Am. Rep. 552; Wilder v. House, that even if any entry by breaking 48 111. 279. In Griffin v. Martel, 77 open a door is within the statute, Vt. 19, 58 Atl. 788, he was held the landlord obtains thereby a pos- liable under a count in trespass de session sufficient to support tres- honis asportotis. the other counts pass against the tenant returning being, it seems, in trespass q. c. f. to the premises. This case is re- J512 HOLDING OVER BY TENANT. §217 In several eases it has been decided that, if the landlord enters peaceably, he may remove the tenant's chattels without incurring any liability for so doing,223 ^nd tliis accords with the view that, after a peacible entry, he may expel the tenant by force,224 with the difference that the removal of the chattels could not relate back so as to render the entry forcible.^^s In jurisdictions where the landlord has a right to expel the tenant even after a forcible entry, ^sti he would, no doubt, have the right to remove the latter 's furniture in a like case.^^^ The landlord is liable for any unnecessary injury to such chat- tels,228 ]3^t is not, it would seem, in any case liable for injury caused by their exposure to the weather after their removal, such injury being avoidable by the tenant by having them placed under shelter.-^^ § 217. Rights of landlord after resuming possession. After the landlord lias re-entered without using force, he has such possession as will justify an action of trespass qnnre clanMim by him against the tenant if the latter remains in possession,23o 223 Todd V. Jackson, 26 N. J. L^w Adams v. Adams, 7 Phila. (Pa.) 160; (2 Dritch.) 525; Merslion v. Wil- Overdeer v. Lewis, 1 Watts & S. liams, 62 N. J. Law, 779, 42 Atl. 778; (Pa.) 90, 37 Am. Dec. 440; Kellam Smith V. Detroit Loan & Bldg. Ass'n, v. Janson, 17 Pa. 467. Compare 115 Mich. 340, 73 N. W. 395, 39 L. post, §§ 216 d, 285, at note.3 543-546. R. A. 410, 69 Am. Rep. 575; Whitney 229 Weeks v. Sly, 61 N. H. 89. But V. Swett, 22 N. H. 10, 53 Am. Dec. Wetzel v. Meranger, 85 111. App. 457, 228; Mussey v. Scott, 32 Vt. 82, 76 is to the effect, apparently, that the Am. Dec. 151; Losch v. Pickett, 36 landlord, tho'ugh entitled to remove Kan. 216, 12 Pac. 822; Weeks v. Sly, the goods, is liable if he places them 61 N. H. 89; Ish v. Marsh, 1 Neb. where they will be exposed to injury Unoff. 864, 96 N. W. 58. by the weather. 224 See ante, at note 208. 2.-?o Butcher v. Butcher, 7 Barn. & 225 See ante, at notes 202, 212. c. 399; Hey v. Moorehoiise. 6 Bin;?. 226 See ante, at note 208. N. C. 52; Whittaker v. Perry, 38 Vt. 227 See Weeks v. Sly, 61 N. H. 89; 107; Stearns v. Sampson, 59 Me. Freeman v. Wilson, 16 R. I. 524, 17 568, 8 Am. Rep. 442. And see state- Atl. 921; Souter v. Codman, 14 R. I. ments referred to ante, § 15 a, at 119, 51 Am. Rep. 364. notes 557, 565, that not until entry 228 Vinson v. Flynn, 64 Ark. 453, can the landlord maintain trespass 43 S. W. 146, 46 S. W. 186. 39 L. R. against the tenant at sufferance, im- A. 415; Whitney v. Swett. 22 N. H. plying that he can do so after 10, 53 Am. Dec. 228; Mershon v. Wil- entry. liams, 62 N. J. Law, 779. 42 Atl. 778; §217 RIGHTS AFTER RESUMING POSSESSION. 1513 in accordance with the rule that where two persons are upon land claiming adversely to one another, the possession will be im- puted to the one who has the title.-^^ And he would, it seems, have the right to maintain an action for assault if the tenant undertakes to expel him by force. The landlord may ordinarily, it seems, after a peaceable re- entry, use force to exclude the tenant seeking to re-enter,23 2 though in some jurisdictions the forcible retention of possession after a peaceable entry is regarded as being within the forcible entry and detainer laws.^'^'s Presumably, even in jurisdictions where the landlord is held li- able for a forcible expulsion of the tenant, he would incur no liabil- ity if, after obtaining entrance peaceably, he dismantles the house in such a way as to render it uninhabitable, as by removing a door or a window, provided he does not, in so doing, commit any tres- pass upon the persons of the tenant or his family, or upon the chattels belonging to them,234 a.nd he might, it would seem, use force in case a tenant attempts to interfere with him in so doing.^ss 28iLitt. § 701; Lightwood, Posses- sion of Land, 36; Pollock & Wright, Possession, 24; Reading v. Royston, 2 Salk. 423; Winter v. Stevens, 91 Mass. (9 Allen) 526. See remarks of Maule, J., in Jones v. Chapman, 2 Exch. 821, quoted by Lord Salborne in Lows V. Telford, 1 App. Gas. 414. 232 See ante, at note 216. 283 See Phelps v. Randolph. 147 111. 335, 35 N. E. 243; Winterfield v. Stauss, 24 Wis. 394; and cases cited 13 Am. & Eng. Enc. Law (2d Ed.) 763. 284 In Jones v. Foley [1891] 1 Q. B. 730, it was decided that the land- lord entering peaceably was not liable for injuries to the tenant's furniture caused by the act of the former in removing the roof. But in Preiser v. V/ielandt, 48 App. Div. 569, 62 N. Y. Supp. 890, it was held that the landlord was liable in dam- ages if, by tearing down the house on the leased premises after the end of the tenancy, the tenant's sick wife was so disturbed and agitated as to become mortally ill. There is no discussion of the question, but the theory seems to be that the tenant's right of possession is extended by illness in his family rendering re- moval hazardous to the patient. Citing Herter v. Mullen, 159 N. Y. 28, 53 N. E. 700, 44 L. R. A. 703, 70 Am. St. Rep. 517, ante, note 46, v/hich, however, involved a different question. 285 See Steams v. Sampson, 59 Me. 568, 8 Am. Rep. 442; Mugford v. Richardson, 88 Mass. (6 Allen) 76, 83 Am. Dec. 617; Harris v. Gilling- ham, 6 N. H. 11, 23 Am. Dec. 701. But in Com. v. Haley, 86 Mass. (4 Allen) 318, it was held that the land- lord was criminally liable for as- sault if he resisted the interfereno« of the tenant. CHAPTER XXII. STIPULATIONS FOR RENEWAL OR EXTENSION. 8 218. Renewal and extension distinguished. 219. Additional term as part of original term. 220. Sufficiency and construction of stipulation for renewal. 221. Stipulations for perpetual renewal. 222. Election by lessee to extend. a. Retention of possession. b. Requirement of express notice. 223. Election by lessee to renew — Notice to lessor. 224. Election by lessor. 225. Compliance by lessee with, covenants and conditions. 226. Form of renewal. 227. Terms of new tenancy — Applicability of former stipulations. 228. Appraisement to ascertain rent. 229. Qualified right to renewal or extension. 230. Persons to whom stipulations available. 231. Persons against v/hom stipulations available. 232. Covenant by sublessor to renew. 233. Breach of covenant to renew — Remedies. 284. Trusts arising from renewal. § 218. Renev/al and extension distinguished. The validity of a covenant by the lessor to "renevr" the lease, that is, upon the expiration of the lease, to make another lease to the same tenant which will have the effect of creating another tenancy in him for a further period, has been uniformily recog- nized, both in England and this country. To be distinguished from such a provision for renewal, is a proAdsion for an "exten- sion" of the term for a certain time at the tenant's option, "the privilege of a further term," as it is sometimes expressed. A proAdsion for an extension does not, as does a covenant to renew, involve an agreement to make a lease for an additional term, but rather serves to extend the operation of the original I 218 RENEWAL AND EXTENSION DISTINGUISHED. 1515 lease, so as to make this latter a lease not only for the term originally named, but also for the additional term, subject to the lessee's election as to whether the tenancy shall continue during such latter term, and consequently no further lease is necessary in order to vest the leasehold in the lessee for such additional term in case he elects in favor of a continuance.^ Such a lease for a certain term, with a provision giving the lessee a right of extension for another term named, may be regarded in either one of two ways: (1) As creating a leasehold estate in the lessee of a duration measured by the sum of the two terms, with an op- tion in the lessee to terminate it at the end of the first named term, either by relinquishing possession, or failing to give notice of a desire to continue possession, or otherwise, according as the lan- guage conferring the privilege may provide,^ or (2) as creating two estates in the lessee, one to commence upon the termination of the other, provided all conditions precedent as to election and notice are satisfied.^ 1 Brown v. Samuels, 24 Ky. Law volve the view that, by the mere Rep. 1216, 70 S. W. 1047; Holley v. subsequent exercise of the option. Young, 66 Me. 520; Willoughby v. an estate for the additional period is Atkinson Furnishing Co., 93 Me. 185, transferred to the lessee, a legal 44 Atl. 612; Kramer v. Cook, 73 impossibility. It would seem. To Mass. (7 Gray) 650; De Friest v. transfer an estate, a conveyance of Bradley, 192 Mass. 346, 78 N. E. 467; some sort is necessary. See post, at Clarke v. Merrill, 51 N. H. 415; note 160. Swan V. Inderlied, 187 N. Y. 872, 80 2 See Chretien v. Doney, 1 N. Y. N. E. 195; House v. Burr, 24 Barb. (1 Comst.) 419; Walker v. Wadley, (N. Y.) 525; Voege v. Ronalds, 83 124 Ga. 275, 52 S. E. 904; Montgom- Hun, 114, 31 N. Y. Supp. 353; Caley ery v. Hamilton County Com'rs, 76 V. Thornquist, 89 Minn. 348, 94 N. Ind. 362, 40 Am. Rep. 250; Heffron W. 108; McClelland v. Rush, 150 Pa. v. Treber (S. D.) 110 N. W. 781. 57, 24 Atl. 354, 16 L. R. A. 554; See, as tending to favor such a view, Quinn v. Valiquette, 80 Vt. 434, 68 Hemming v. Brabason, 0. Bridg. p. Atl. 515, 14 L. R. A. (N. S.) 962. 1, 1 Lev. 45, 1 Keb. 154; 3 Preston's But in Ward v. Hasbrouck, 169 N. Conveyancing, 75. Y. 407, 62 N. E. 434, it was said, in 3 This view is perhaps indicated considering the applicability of the in Kramer v. Cook, 73 Mass. (7 statute of frauds, that "an option Gray) 550; Willoughby v. Atkinson for an extension," existing in con- Furnishing Co., 93 Me. 185, 44 Atl. nection with a lease for four months, 612; Sheppard v. Rosenkrans, 109 "did not render the agreement a Wis. 58, 85 N. W. 199, 53 L. R. A. lease for a longer period than four 650, 83 Am. St. Rep. 886. months." This would seem to in- 1516 STIFULATIO^^S FOR RENEWAL OR EXTENSION. §1^18 In a number of cases, what might well be regarded as a cove- nant to renew, as apparently looking towards the making of a new lease by the lessor, has been regarded as in effect a stipula- tion for an extension, vesting in the lessee an estate extending to the end of the second period named, without any necessity of the making of a second lease.^ The same courts, however, which have thus in effect regarded a stipulation for a renewal as equivalent to a provision for an extension, would presumably recognize and enforce a stipulation which in terms called for the making of a new lease and expressly stipulated that until this was done no legal interest should vest in the lessee for the additional term.5 Conceding this, the rule in those states would seem to be one of construction merely, that is, that unless a clear intention 4Holley V. Young, 66 Me. 520; Perry v. Rockland & R. Lime Co., 94 Me. 325, 47 Atl. 534; Ferguson v. Jackson, 180 Mass. 557, 62 N. E. 965 (semble); Wood v. Edison Elec. Il- luminating Co., 184 Mass. 523, 69 N. E. 364, 100 Am. St. Rep. 573; Ranlet v. Cook, 44 N. H. 512, 84 Am. Dec. 92; Caley v. Thornquist, 89 Minn. 348, 94 N. W. 10S4; Harding V. Seeley, 148 Pa. 20, 23 Atl. 118. So it has been decided that the lessee had a term for the full period named when there was merely an option "of renting" the property for the further term (Walker v. V>'adley, 124 Ga. 275, 52 S. E. 904), when there was a covenant "to let and demise for a further term" (Trus- tees of Congregation of Sons of Abraham v. Gerbert, 57 N. J. Law, 395, 31 Atl. 383), when the lessee was given the "privilege of releasing" (Willoughby v. Atkinson Furnishing Co., 93 Me. 185, 44 Atl. 612), when the lessors agreed to "renew" (Ran- let V. Cook, 44 N. H. 512, 84 Am. Dec. 98), and when the lessee was given the "privilege of renewal" (In- surance & Law Bldg. Co. v. National Bank, 71 Mo. 58; Kentucky Lumber Co. v. Newell, 32 Ky. Law Rep. 396, 105 S. W. 972). In Kollock V. Scribner, 98 Wis. 104, 73 N. W. 777, it is said by Mar- shall, J., that "there is much re- spectable authority to the effect that the words 'renew' and 'extend' should be construed in accordance with their ordinary meaning. Obvi- ously, one means to prolong or to lengthen out; the other, to make over, to re-establish, or to rebuild; and those courts and writers that have construed them accordingly certainly have the best of the argu- ment, if the judicial construction is to follow the true definitions of the words. We apprehend that no one would seriously contenl that an agreement to renew a note would be satisfied otherwise than by mak- ing a new note in place of the old one. It would seem that the con- struction adhered to in some juris- dictions, that to renew is equivalent to extend, violates the rules of lan- guage to reach a judicial construc- tion out of harmony with the uni- versally accepted meaning of the words as defined by lexicographers." B See Kentucky Lumber Co. v. s 218 RENEWAL AND EXTENSION DISTINGUISHED. 15 17 Otherwise shall appear, a provision which is in terms a covenant for renewal is to be construed as a provision for extension. When the words "renewal," "reletting," and the like, occur- ring in a stipulation of this character, are given their ordinary meaning, the lessee has, until the renewal lease is executed, no le- gal inte'rest beyond the original term, as distinct from a right of action for breach of the covenant, or for specific performance,^ though a stipulation for a renewal has been asserted to constitute an equitable defense to an action by the lessor for possession after the lapse of the original term, under a statute allowing equitable defenses J That such a covenant does not give a legal interest seems to be by implication recognized in those c^ses upholding the right of the lessee to specific performance of a covenant to make a renewal lease, since such relief would be entirely superfluous if the covenant itself conferred such an interests ^ Occasionally it has been said that a provision giving to the les- see the privilege of continuing in possession after the term named is equivalent to a covenant for renewal.^ Whether, however, such Newell, 32 Ky. Lav/ Rep. 39G, 105 S. of the term, the lessee desired to ■^ g-^2 retain the premises, he might do 6 Piatt V. Cutler, 75 Conn. 183, 52 so provided he gave six months' Atl. 819; Hunter v. Silvers, 15 111. notice, was construed as a cove- 174; Sutherland v. Goodnow, 108 HI. nant to make a renewal lease, and 523' 48 Am. Rep. 560; Finney V. Cist, as consequently not constituting a 34 Mo. 303, 84 Am. Dec. 82; Swank lease for the whole time, including V. St. Paul City R. Co., 61 Minn. 423, the renewal term. 63 N W. 1088; Kollock v. Scribner, 7 Ferguson v. Jackson, 180 Mass. 98 Wis. 104, 73 N. W. 776; Orton v. 557, 62 N. E. 965; Pittsburg Drove Noonan, 27 Wis. 272; Tscheider v. Yard Co.'s Appeal, 123 Pa. 250, 16 Biddle, '4 Dill. 58, Fed. Cas. No. Atl. 625. In McAdoo v. Galium, 86 14,210;' Fenny v. Child, 2 Maule & S. N. C. 419; Barbee v. Greenberg, 144 255; Andrews v. Marshall Creamery N. C. 430, 57 S. E. 125, it is decided Co.' 118 Iowa, 595, 92 N. W. 706, 60 that while a covenant for renewal L R A. 399,' 96 Am. St. Rep. 412; is not itself a renewal so as to vest Werlein v. Jans^en, 112 La. 31, 36 a subsequent term in the lessee, it So 216. In Steen v. Scheel, 46 Neb. gives him an equity which, while 252 64 N. W. 957, it was so decided not enforcible before a justice of the where the lease gave the lessee "the peace, will constitute a defense to refusal of leasing said property for summary proceedings, two years longer;" and in James v. 7a See post, § 233. Kibler's Adm'r, 94 Va. 165, 26 S. E. s Crawford v. Kastner, 26 Hun (N. 417, a provision that if, at the end Y.) 440; Western New York & P. R. 1518 STIPULATIONS FOR RENEWAL OR EXTENSION. § 219 a provision is, in any particular case, so to be regarded, would seem to be a question of construction.^ Ordinarily in this coun- try, such a provision would not be construed as contemplating the making of a new lease. § 219. Additional term as part of original term. In a number of cases the question has arisen whether a lease for a certain term, with a right of renewal for another term, was a lease for the sum of the two terms, for the purpose of determin- ing whether it was within the operation of a particular statute. It has bee.n decided, for the purpose of determining the applicability of a statute restricting the period for which a lease can be made, that the lease is invalid if the sum of the original term and of the renewal term exceed the period named in the statute,i° ^j^j ^ like view has occasionally, ^^ though not always,i2 been asserted in de- termining the applicability of the Statute of Frauds. Likewise, such a lease has been regarded as within a recording act which purports to cover only leases for a period longer than the orig- inal term.^2 A statutory provision that a tenant under a lease for more than a period named should have a right to purchase the reversion has been held to apply to a lease for a shorter period than that named, when there was a right of renewal which might extend the hold- ing beyond that period.^-* And conversely, a prohibition of the assignment of a lease of less than a certain period has been held not to apply when there was such a right of renewal. ^^ In one Co. V. Rea, 83 App. Div. 576, 81 N. See Ward v. Hasbrouck, 169 N. Y. Y. Siipp. 1093. 407, 62 N. E. 434. 9 See Orton v. Noonan, 27 Wis. 13 Toupin v. Peabody, 162 Mass. 272; Kolloclv v. Scribner, 98 Wis. 473, 39 N. E. 280; Leominster Gas- 104, 73 N. W. 776. And ante, at light Co. v. Hillery, 197 Mass. 267, notes 4, 5. 83 N. E. 870, 15 L. R. A. (N. S.) 10 Moore v. Clench, 1 Ch. Div. 447; 243, 125 Am. St. Rep. 361. Contra, Hart V. Hart, 22 Barb. (N. Y.) 606. Doe d. Kinkstan Bids;. Soc. v. Rains- 11 Schmitz V. Lauferty, 29 Ind. ford, 10 U. C. Q. B. 236. 400; WilMams v. Mershon, 57 N. J. i* See post, § 2C9, at note 105. Lg-w, 242, 30 Atl. 619 (semble); le Jones v. Hamm (Mo. App.) 74 Rosen v. Rose, 13 Misc. 565. 34 N. S. W. 150; Jone^ v. Kansas City Y. Snpp. 4G7; Hess v. Martin, 36 Board of Trade, 99 Mo. App, 433, 78 Misc. 561, 73 N. Y. Supp. 946. S. W. 843. 12 Hand v. Hall, 2 Exch. Div. 355. § 220 SUFFICIENCY AND CONSTRUCTION. 1519 state, on the other hand, the view has been taken that the period for which a renewal could be obtained should not be added to that of the original term for the purpose of making up a term of five years within the statute allowing a redemption, under the summary proceeding statute, in the case of such a term.^^ Where a privilege of extension, as distinct from a right of re- newal, is given, since the lease creates both the original term and the period of the extension,!"^ the lease would seem to be invalid if it is oral merely, and the sum of the two periods exceeds the limits imposed by the Statute of Frauds, even though the first term named is within those limits. There are decisions to that effect,^^ but the contrary view has also been taken.^^ § 220. Sufiiciency and construction of stipulation for renewal. Occasionally, without the use of the word "renew," or of ordi- nary words of agreement or covenant, the language of the lease has been construed as equivalent to a covenant for renewal. Such has been the construction placed on a lease "with the option of renewal, "20 -with "the privilege of six years more at the same rent, "21 with "the refusal" of the premises,-^ or Avith the re- fusal of "leasing" the premises^^ for a longer time named, or giving the lessee "the option to take the premises" for a longer time.24 It has been decided that when the covenant is in terms merely to renew, without more, the renewal lease must be for the same 18 Bokee v. Hamersley, 16 How. performed within the year. The rule Pr. (N. Y.) 461. has, it is submitted, no proper ap- 17 See ante, at note 1. plication to a conveyance as distin- 18 Hand v. Osg-ood, 107 Mich. 55, guished from a contract. 64 N. W. 867, 30 L. R. A. 379, 61 20 Lewis v. Stephenson, 67 Law J. Am. St. Rep. 312; Donovan v. Q. B. 296, 78 Law T. (N. S.) 165. Schofnhoefen Brew. Co.. 92 Mo. App. 21 Cawford v. Kasfner, 26 Hun 341; Bateman v. Maddox, 86 Tex. (N. Y.) 440, 63 How Pr. 90. 546, 26 S. "W. 51. 22 Tracy v. Albany Exch. Co., 7 18 Ward V. Hasbrouclc, 169 N. Y. N. Y. (3 Seld.) 472, 57 Am. Dec. 407, 62 N. E. 434. The decision is 538; McAdoo v. Galium, 86 N. C. 419. arrived at by applying the rule that 23 Steen v. Scheel, 46 Neb. 252, 64 an agreement is not within the pro- N. W. 957. vision of the statute of frauds ap- 21 Sutherland v. Goodnow, 108 111. plying to contracts not to be per- 528, 48 Am. Rep. 560. formed within a year, if it might be 1520 STIPULATIONS FOR RENEWAL OR EXTENSION. § 220 length of term as the original lease/^^* and that it must contain the same stipulations.^" Consequently, such a clause is not bad for uncertainty. So a clause "with the privilege of renting same for three years longer" has been regarded as giving a right of re- newal on the terms of the original leaser' as has a provision that at the expiration of the term the lessee should have the refusal of the premises for a time named.^s But when the language of the covenant or stipulation is such as to exclude any inference that the terms are to be the same as before, it is unenforcible if it does not name any terms. Thus a covenant to renew, the rent to be proportioned to the valuation of the promises, is void if there is no provision for determining the valuation ;29 and the same view has been taken of a provision that the lessee is "to have the prefer- ence of renting said property so long thereafter as it shall be rent- ed for a store. ""^ A provision that the lessor shall "let" the land at the expiration of the term to the lessee, without naming any term,3i and one that the renewal shall be "for such time as shall 25 Tracy v. Albany Exch. Co., 7 N. Y. (3 Seld.) 474, 57 Am. Dec. 538; Kollock V. Scribner, 98 Y/is. 104, 73 N. W. 776; Lewis v. Stephenson, 78 Law T. (N. S.) 185. See Phillips v. Reynolds, 20 Wash. 374, 55 Pac. 316, 72 Am. St. Rep. 107. But in Wal- lace V. DorrliB, 218 Pa. 534, 67 Atl. 858, it was considered, apparently, that such a provision for renewal called for a renewal for such a length of time as might subsequent- ly be agreed upon. In Austin v. Newham [1908] 2 K. B. 167, a lease "for a period of twelve months with the option of a lease after the afore- said time at the rer.tal of thirty pounds per annum" was construed to entitle the lessee to a further lease of at least one year, the words "per annum" shov/ing an intention to this effect. 26 Rutgers V. Hunter, 6 Johns. Ch. (N. Y.) 215; Cunningham v. Pattee, 99 Mass. 248; Ranlet v. Cook, 44 N. H. 512, 84 Am. Dec. 92; McAdoo v. Galium, 86 N. C. 419; Tracy v. Al- bany Exch. Co., 7 N. Y. (3 Seld.) 472, 57 Am. Dec. 538; Hughes v. Windpfennig, 10 Ind. App. 122, 37 N. E. 432; Steen v. Scheel, 46 Neb. 252, 64 N. W. 957; Cairns v. Llewl- lyn, 2 Pa. Super. Ct. 599; Kollock V. Scribner, 98 Wis. 104, 73 N. W. 776; Lewis v. Stephenson, 78 Law T. (N. S.) 165; Price v. Assheton, 1 Younge & C. 82; Rickards v. Rick- ards. 2 Younge & C. Ch. 427. 27 Hughes V. Windpfennig, 10 Ind. App. 122, 37 N. E. 432. 28 Tracy v. Albany Exch. Co., 7 N. Y. (3 Seld.) 472; McAdoo v. Galium, 86 N. C. 419. 2!>Pray v. Clark, 113 Mass. 283; Morrison v. Rossignol, 5 Cal. -64; Streit V. Fay, 230 111. 319, 82 N. E. 648, 120 Am. St. Rep. 304. And see ante, § 12 c (3) (d), at notes 144- 147. 30 Delashrautt v. Thomas, 45 Md. 140. 31 Abeel v. Radcliff. 13 Johns. (N. Y.) 297, 7 Am. Dec. 377. § 220 SUFFICIENCY AND CONSTRUCTION. 1521 prove mutually profitable, "^ 2 have also been regarded as too in- definite. A mere "preference" or "first right" in the lessee as to a sub- sequent lease of the premises,^^ such as that given by a stipulation that the lessee may retain possession upon his giving the same rent as the lessor "might be able to obtain from other parties;" has been regarded as unenforcible,^^ though in one state a cove- nant for renewal in case the lessee was willing "to give as much as any other responsible party will agree to give ' ' was held to fix the amount of rent with sufficient certainty.^^ A lease for one year "with privilege of longer" gives the lessee no rights after the year.26 An "option" in the lessee to renew on such terms as may be satisfactory to both parties is obviously nugatory, it giv- ing him merely the right to enter into a new contract with the owner of the reversion, which right he would have had without any such provision.^'^ It has in one case been decided that a stipulatio.n, giving the lessee "the privilege of keeping and occupying said lots for such further time, after the expiration of said term, as said party of the second part (the lessee) shall choose or elect," is invalid as not fixing the period during which the lessee may retain the posses- sion, and not even authorizing the lessee to fix the period.^^ Ref- erence is also made in the opinion in this case to the fact that no term was named by the lessee during the life of the lessor, the rule being stated to be that when the ascertainment of the dura- tion of a term depends on matter ex post facto, that matter must occur in the lifetime of both the lessor and lesse^.^^ The same case apparently decides that such a stipulation, regarded as an op- tion for an extension, creates merely a tenancy at will after the end of the original term, on the ground that a lease at the will of 32 Lloyd V. Worrell, 37 How. Fr. 37 Pause v. Atlanta, 98 Ga. 92, 26 (N. Y.) 75. S. E. 489, 58 Am. St. Rep. 290; Duf- 33 Reed V. Campbell, 43 N. J. Eq. field v. Whitlock, 26 Wend. (N. Y.) 406. See Crawford v. Morris, 5 55, 37 Am. Dec. 246; Howe v. Larkln, Grat. (Va.) 90. 119 Fed. 1005. 34 Gelston v. Sigmund, 27 Md. 335. 3s Western Transp. Co. v. Lansing, ssArnot v. Alexander, 44 Mo. 25, 49 N. Y. 499. 100 Am. Dec. 252. 39 See ante, § 12 c (2) (b), at note 36 Howard v. Tomlcich, 81 Miss. 118. 703, 33 So. 493. L and Ten. 96. 1522 STIPULATIONS FOR RENEWAL OR EXTENSION. § 221 the lessee is at the will of the lessor as well, a doctrine which, as we have before stated, is open to question.^*^ There seems no rea- son, on principle, why an agreement for a renewal lease, to be made for such a term as the lessee may name, should not be up- held.^i jj2 one state a provision for an extension for such a pe- riod as the lessee desires has been given effect, without, hov/ever, any clear statement as to the exact interest thereby created in the lessee.^2 A lease for three years "with the privilege of five years" has been construed to give the privilege of five years in all, and not of five years in addition to the three years.^^ A covenant or stipulation to give a renewal lease may be con- tained in an instrument separate from the original instrument of lease,'*'* and it may be made subsequently thereto. Such a subse- quent stipulation must, at least if not under seal, be supported by a consideration, though it is sufficient for this purpose if the other party is bound to accept a renewal. ^^ In the case of a renewal clause in the original lease, there can be no question of considera- tion, the requirements in this regard being fully satisfied by the acceptance of the lease and the consequent assumption by the les- see of the burden of the stipulations therein.^^ § 221. Stipulations for perpetual renewal. The validity of a covenant for perpetual renewal, that is, of a covenant for a renewal upon the termination of the first term, and 40 See ante, § 13 a (1). 458. So a lease for one year "and 41 See comments by Lord Ellen- the privilege of four years" was held borough. C. J., in Iggulden v. May, to give the privilege of four years 7 East, 237, on Bridges v. Hitchcock, in all. Willis v. Weeks,' 129 Iowa, 5 Bro. Pari. Gas. 6. In Hyde v. 525, 105 N. W. 1012. And to the Skinner, 2 P. Wms. 196, the term of same effect is Connors v. Clark, 79 the renewal lease seems to have Conn. 100, 63 Atl. 951. been at the option of the lessee, and 44 Hunter v. Silvers, 15 111. 174; the court consented to compel a re- Winters v. Cherry, 78 Mo. 344. newal for no mqre than twenty-one 45 Robertson v. St. John, 2 Bro. years, that being "the usual term for Ch. 140; Dowling v. Mill, 1 Madd. leasing." 541. 42 Sweetser v. McKenney, 65 Me. 46 Monihon v. Wakelin, 6 Ariz. 225; Holley v. Young, 66 Me. 520. 225, 56 Pac. 735; Spear v. Orendorf, 43Gensler v. Nicholas, 151 Mich. 26 Md. 37. 529, 15 Det. Leg. N. 13, 115 N. W. §l^:il PERPETUAL RENEWAL. 1523 for another renewal upon tlie termination of the term created by- such first renewal, and so on indefinitely, so long a^ the holder of the term then existing may choose to call for a renewal, has been frequently recognized.'*" In at least one state, however, such a covenant has been decided to be invalid under the rule against perpetuities.^^ Conceding that the rule referred to is directed against the unrestricted creation of future limitations which "are not destructible by the persons for the time being entitled to the property subject to the future limitation, except with the concur- rence of the individual interested in that limitation, "^9 on the ground that the effect of the existence of such a limitatio.n, not to vest until the remote future, is to render both the present and the future interests uncertain in value and so to affect their vendibil- ity,^*^ it is difficult to perceive its applicability to a covenant to create an estate to commence in the future, when the right to call for the creation of such an estate is in the person alone who has the present estate in possession. The case of a covenant to renew at the demand of the person who has the vested interest under the lease is entirely different from a covenant to convey to one who has no vested interest, which has been decided to be within the rule, if not to be performed within the time prescribed by the rule.^i "An estate for years -with a perpetual covenant for re- newal is, so far as questions of remoteness are concerned, substan- tially a fee, and as such it is regarded. If the right of renewal, however, is not within the control of those having vested interests under the lease, and if the interest of tlie person within whose 47 Hare v. Burges, 4 Kay & J. 45 ; to the effect that such a covenant Is London & S. W. R. Co. v. Gomm, 20 invalid is quoted in Brush v. Beech- Ch. Div. 562; Muller v. Traftord er, 110 Mich. 597, 68 N. W. 420, 64 [1901] 1 Ch. 54; Banks v. Ha ^'^- 61 Syms V. New York, 105 N. Y. binding on the lessor's heirs, must be regarded as intended to be eft'ec- 153, n N. E. 369, 59 Am. Rep. 48.3. 62 Diffenderfer v. St. Louis Pnblip tive only during his life, and so not gehools, 120 Mo. 447, 25 S. W 542. to provide for perpetual renewals. es Brush v. Beecher, 110 Mich. Brush V. Beecher, 110 Mich. 597, 68 597, 68 N. W. 420, 64 Am. St. Rep. N. W. 420, 64 Am. St. Rep. 373; 373. 1526 • STIPULATIONS FOR RENEWAL OR EXTENSION. § 222 ''from time to time" is not one for perpetual renewal,^^ while a different view lias been taken of a stipulation that the lessor and his successors in interest should "continue the renewing" of the lease to the lessee and his suecessors,^^ or that they should renew to them "always at any time upon request, "^^ and even where the covenant was to "grant such further lease as should by the lessee or his successors be desired, under the same rent ajid cove- nants."" § 222. Election by lessee to extend. a. Retention of possession. It has been decided in numerons esses that if the lessor gives the lessee the right to an extension of the term, and does not specifically require him to give notice of his election to avail himself of such right,^^ ^ig mere continuance in possession after the original term is to be regarded as showing his election to that effect.^^ "Such a notice had it been given would have been a notice only of the lessee 's intention to continue the same occupation, upon the same terms as before. And upon principle it would certainly seem that the actual continuance of such occupation was the best and most conclusive evidence of his c4 Brown v. Tighe, 2 Clark & F. 1216, 70 S. W. 1047; Holley v. Young, 396. 66 Me. 520; Clarke v. Merrill, 51 N. GoFurnival v. Crew, 3 Atl. 83. H. 415; Long v. Stafford, 103 N. Y. 66 Copper Min. Co. v. Beach, 13 274, 8 N. E. 522; Mershon v. Wil- Beav. 478. Hams, 62 N. J. Law, 779, 42 Atl. 778; 67 Bridges v. Hitchcock, 5 Brown Voege v. Ronalds, 83 Hun, 114, 31 Pari. Cas. 6. See 13 Harv. Law. N. Y. Supp. 353; Kelly v. Varnes, 64 Rev. 472. N. Y. Supp. 1040; Harding v. Seeley, 68 See post § 222 b. 148 Pa. 20, 23 Atl. 1118; Cairns v. 69 City of Plattsmouth v. New Llewllyn, 2 Pa. Super. Ct. 599; Hampshire Sav. Bank (C C. A.) Ewing v. Miles, 12 Tex. Civ. App, 139 Fed. 631; Hays v. Goldman, 71 19, 33 S. W. 235; Peehl v. Bumbalek, Ark. 2.51, 72 S. W. 563; Terstegge v. 99 Wis. 62, 74 N. W. 545; Branden- First German Mut. Ben. Soc, 92 Ind. burg v. Reithman, 7 Colo. 323, 3 Pac. 82, 47 Am. Rep. 135; Montgomery 577; Quinn v. Valiquette, 80 Vt. 434, V. Hamilton County Com'rs. 76 Ind. 68 Atl. 515, 14 L. R. A. (N. S.) 962; 362. 40 Am. Rep. 250; Andrews v. Spangler v. Rogers, 123 Iowa, 724. Marshall Crparaery Co., 118 Iowa, 99 N. W. 580. 595, 92 N. W. 706. 60 L. R. A. 399, 96 That the possession must be ac- Am. St. Rep. 412; Cusack v. The tual, visible and exclusive, see Gunning Svptem, 109 111. A"pp. 588; Wright v. Kaynor, 150 Mich. 7, 14 Brown v. Samuels, 24 Ky. Law Rep. Det. Leg. N. 631, 113 N. W. 779. 222 ELECTION BY LESSEE TO EXTEND. 1527 intention to continue. The inference is that he intends to continue in possession rightfully according to the terms of his lease, rather than wrongfully. "'^ This doctrine, that the lessee's re- tention of possession shows an election to extend, applies not only agaiaist the lessee, when the extension is asserted as ground for a continued liability on his part, but also in the latter 's favor, when it is asserted by him as against the lessor, seeking to recover pos- session,"^ i or otherwise to assert a liability against him as wrong- fully holding over.^2 in one state it has been decided that the fact that the tenant so retains possession after the original term is not conclusive that he has elected to hold for the extended term, even though his retention of possession is accompanied by pay- ment of rent. This, it was said, "is a piece of evidence, a strong piece of evidence, — a piece of evidence sufficient of itself, if un- explained and uncontrolled, to raise a fair inference and presump- tion that the option has been exercised, and thus to make out a prima facie case. But this is the most that can be said of it, and it is still competent for the tenant to offer opposing evidence. ""^3 When the provision for extension fails to specify the length of the extension, or names alternative periods for which the lessee 70 Per Christiancy, J., in Delash- be so inferred in the absence of evi- man v. Berry, 20 Mich. 292, 4 Am. dence to control the effect of those Rep. 392. acts." That the retention of pos- 71 Delashman v. Berry, 20 Mich, session raises a presumption of an 292, 4 Am. Rep. 392; Holley v. election to extend, see Lyons v. Os- Yoiing, 66 Me. 520; Woodcock v. born, 45 Kan. 650, 26 Pac. 31. Roberts, 66 Barb. (N. Y.) 498. Where a lease was for one year, 72 Insurance & Law Bldg. Co. v. with the privilege of "continuing" National Bank, 71 Mo. 58. for five years, and the lessee, having 73 Atlantic Nat. Bank v. Demmon, erected a building on the land, re- 139 Mass. 420, 1 N. E. 833, per C mained thereon after the year, and Allen, J, who proceeds: "This doc subsequently told the lessor that he trine is in full accord with the de- did not wish to stay longer, and the cision in Kramer v. Cook, 73 Mass. lessor told him that he might leave (7 Gray) 550, where it was held if he removed his building, which that such election may be inferred he failed to do, it was held that this from proof of the tenant's continu- was sufficient to warrant a finding ing to occupy, and paying rent for that he elected to remain five years two quarters, without showing any and was bound for the rent for that formal election or notice to the les- time. Kimball v. Cross, 136 Mass. sor at the time of the expiration of 300. And see Gilbert v. Price, 18 the first term, and that it ought to Pa. Super. Ct. 359. 1528 STIPULATIONS I'OR RENEWAL OR EXTENSION. § 222 ma^ extend, the mere holding over has been decided to be insuf- ficient as notice of an election to extend,'^ though in one state, when there was such an option to extend for either of two or more periods, the retention of possession was regarded as an election to extend for the shorter period."" A tenant does not bind himself for the extended term, it has beeii decided, by holding over the original term, if he does so on the strength of an agreement by the landlord to repair, which the latter fails to do,^<' nor when he so holds over on the strength of an agreement by the landlord to make another and different lease to him, which agreement is not carried out." Somewhat similar in principle is a decision to the effect that the lessee, having re- fused to accept a renewal at a rent fixed by appraisement, which renewal the lessor had covenanted to make, did not show an ac- ceptance thereof by subsequently holding over and asserting that "the appraisement was invalid.^^ It has been decided that if the lessee, before the end of the orig- inal term, notifies the lessor that he will not avail himself of the option to extend, and the lessor acts upon such notification, the lessee is bound thereby, and cannot afterwards assert that, by continuing in possession, he has shown an election to extend.'^ And a like decision was made when the lessee, having an option to extend for four years, notified the lessor that he would extend for one year, this being regarded as equivalent to notice that he would not exercise the option.so ^ similar view has been assert- ed in favor of the lessee, it being decided that the landlord can- not assert an extension under the extension clause of the lease by reason of the fact that the lessee held over, if the latter had previ- 74 Perry v. Rockland & R. Lime tt Crouch v. Trimby & Brewster Co., 94 Me. 325, 47 Atl. 534; Strousse Shoe Co., 83 Hun, 276, 31 N. Y. Supp. V. Bank of Clear Creek County, 9 932; Henderson v. Schuylkill Val- C'olo. App. 478, 49 Pac. 260. And ley Clay Mfg. Co., 24 Pa. Super. Ct. see Willoughby v. Atkinson Furnish- 422. ing Co., 93 Me. 185, 44 Atl. 612. ts Zorkowski v. Astor, 156 N. Y. TsFolley v. Giles, 29 Ind. 114; 393, 50 N. E. 983. Whetstone v. Davis, 34 Ind. 510. 79 Barnett v. Feary, 101 Ind. 95; 76 Fisher V. Nergararian, 112 Mich. Greiner v. Cota, 92 Mich. 32, 52 N. 327, 70 N. W. 1009. See Williams W. 77. V. Houston Comic3 Works (Tex. f o Mershon v. Williams, 62 N, J. Civ. App.) 18 Tex. Ct. Rep. 240, Law, 779, 42 Atl. 778. 546, 101 S. W. 839, 1195. s 222 ELECTION BY LESSEE TO EXTEND. 1529 ously notified the lessor that he would not exercise the right of extension.si But the lessee 's statement that he would not remain, when made merely in answer to the lessor's wrongful demand of an increased rent, was held not to show an election not to extend, the lessee retaining possession after the term.s2 j^ statement by the lessee to the lessor, made before the end of the first term, of his election to extend, is, it seems, if acted on by the lessor, bind- ing on the lessee to the same extent as his notice of election not to extend.^2 Occasionally the lease, instead of providing in terms for an ex- tension at the option of the lessee, provides that if he shall fail to relinquish possession he will hold for another term or as a tenant from year to ycar.^* A provision that "if the tenant should con- tinue on the premises after the termination of the contract" it should "continue in force for another year and so on" has been held to refer to a "lawful continuance" on the premises, and not to a continuance in violation of the lessee's covenant to relinquish possession at the end of the term on demand.*^ b. Requirement of express notice. Where the stipulation for an extension at the option of the lessee provides for a notice by him of a particular character of his election to exercise the option, his mere retention of possession mil not be sufficient to entitle him to possession for the extended period.^^ It has been held that a requirement of a notice in writing was satisfied by a notice writ- ten in the third person, naming the lessee, and enclosed in his business envelope, although the notice was not signed.^''' The lessor may waive any requirements as to notice.^^ In one 81 Racke v. Anheuser-Busch Brew. N. W. 414; Mershon v. Williams, 62 Ass'n, 17 Tex. Civ. App. 1G7, 42 S. N. J. Law, 779, 42 Atl. 778; Ocum- W. 774. See Lindsay v. Robertson, paugh v. Engel, 121 App. Div. 9, 105 30 Ont. 229, apparently to this effect. N. Y. Supp. 510; Powell v. Harrison, 82 Hughes V. Windpfennig, 10 10 Wkly. Law Bui. (Ohio) 215. Ind. App. 122. 37 N. E. 432. See Murtland v. English, 214 Pa. 83 See Chandler v. McGinning, 8 325, 63 Atl. 882, 112 Am. St. Rep. Kan. App. 421, 55 Pac. 103. 747. Compare Gardiner v. Bair, 10 ^4 See McPherson v. Norris, 13 U. Pa. Super. Ct. 74. C. Q. B. 472; Crawford v. Kline, 74 st Wiener v. Graff & Co. (Cal. N. J. Law, 203, 65 Atl. 441; Steen App.) 95 Pac. 167. V. Scheel, 46 Neb. 252, 64 N. W. 957. ss Wood v. Edison Elec. Illumin- 85 MacGregor v. Rawle, 57 Pa. 184. ating Co., 184 Mass. 523, 69 N. E. 86 Cooper V. Joy, 105 Mich. 374, 63 364, 100 Am. St. Rep. 573; Hausauer 1530 STIPULATIONS FOR RENEWAL OR EXTENSION. § 222 case it was decided that a provision for a written notice of the lessee's election to extend cannot be verbally waived without a violation of the provision of the Statute of Frauds prohibitiog the creation of a terra of years without writing,^^ but this decision, based as it apparently is, on the theory that the extended term is created by the notice and not by the original lease, seems er- roneous, and has been controverted in other states.^o In another case it was decided that, in view of the provision for notice of his election to extend, the lessee's retention of possession, without the giving of the notice, was insufficient to impose lial)ility on him for rent for the extended term, the theory being, apparently, that the lessor could not, by waiving the requirement of notice, give to the retention of possession a meaning which, in view of the re- quirement of notice, the lessee could not have intended it to have.^i In that case it was held to be a question of fact whether the holding over and payment of the stipulated rent showed an election by the lessee. The acceptance by the lessor, without objection, of a notice given after the time named for giving it, has been held to involve a waiver of the requirement as to time,^^ and the requirement of notice itself was regarded as waived when the lessor joined in naming appraisers to fix the rent on the extended term.^^ Like- wise, the acceptance by the lessor, after the end of the original term, of an increased rent, which was to be paid in case of ex- V. Dahlman. 18 App. Div. 475, 45 N. to be settled by appraisement, how- Y. Supp. 1038; Id., 163 N. Y. 567, ever, it was held, apparently, that 57 N E. 1111. the requirement of notice could not soBeller v. Robinson, 50 Mich, be waived, so as to give the lessee 264 15 N. W. 448, opinion per Cool- a right of possession at law, though gy J it might be ground for relief in 90 McClelland v. Rush, 150 Pa. 57, equity. Tilleny v. Knoblauch, 73 24 Atl. ?.n4, 16 L. R. A. 554; Shep- Minn. 108, 75 N. W. 1039. pard V. Rosenkrans, 109 Wis. 58, 85 9i Oerhsrt Realty Co. v. Brecht. N. W. 199. 53 L. R. A. 650, 83 Am. 109 Mo. Ann. 25, 84 S. W. 216. See St. Rep. 886; Long v. Stafford, 103 ante, note 86. N. Y. 274, 8 N. E. 522; In re Zillig, 92 Sheppard v. Rosenkrans, 109 13 N. Y. St. Rep. 891; Lewis v. Wis. 58, 85 N. W. 199, 53 L. R. A. Perry, 149 Mo. 257, 50 S. W. 821. See 650, 83 Am. St. Rep. 886. In re Thompson's Estate, 205 Pa. 93 Viany v. Ferran, 5 Abb. Pr. (N. 5t;k, 55 Atl. 539. Where the provi- S.; N. Y.) 110, 54 Barb. 529. sion was for an extension at a rent e v02 ELECTION BY LESSEE TO EXTEND. 1531 tension, has been regarded as a waiver of the requirement of notice,^-' as has the acceptance of the same rent, when there was no provision for an increase of rent.^^ A notice in accordance with the terms of the lease is not in- validated by the fact that there is coupled therewith a sugges- tion on the part of the lessee that he desires to extend for a longer period than that named, to which the lessor refuses can- sent ^ A deposit of the notice in the mail, before the time named in the lease, in accordance with instructions from the lessor, has been regarded as sufdcient, though the notice is not received by the latter, residing in another state, till after the date named.^^ It has been decided that, in the case of a lease to two, the option to extend must be exercised by both in order to be effec tive and that the expressed dissent of one to an extension pre- cludes an extension in favor of the other .^^ in the case of a cove- nant to renew made by eolessors, a notice to one has been re- garded as sufficient as against all.^^ Occasionally a provision is found that, if the lessee fails to give notice a certain length of time before the end of his term, the t.maney shall continue for another term, or as one from year to yeari'^o One purpose of such a provision is, it is said, to put the landlord and tenant on an equal footing, so that the former may know a reasonal^le time before the end of the term whether he must seek another tenant, and the latter will know whether 94 Long v Stafford, 103 N. Y. 274. 98 Tweedie v. P. E. Olson Hard- 8 N E 522- Kramer v. Cook, 73 ware & Furniture Co., 96 Mmn. 238. Mass (7 Gray) 550; Stone v. St. 104 N. W. 895, 1089; Id., 98 Minn. Louis Stamping Co., 155 Mass. 267. 11, 107 N. W. 557. See Howell v. 29 N E 623 Behler, 41 W. Va. 610, 24 S. E. 646. 95 Prober V Rochester Steam oo Wright v. Kaynor. 150 Mich. 7, Laundry Co., 171 N. Y. 584. 64 N. E. 14 Det. Leg. N. 631, 113 N. W. 779. 504- Lewis v. Perry, 149 Mo. 257. loo Chretien v. Doney, 1 N. Y. 50 S W 821 (semble); Bailie v. (1 Comst.) 419; Dix v. Atkins. 130 Plant 11 Misc 30, 31 N. Y. Supp. Mass. 171; Wilcox v. Montour Iron ^Q^5 ' & Steel Co.. 147 Pa. 540, 23 Atl. 840; orchamberlain v. Dunlap, 126 N. Lipper v. Bouve. Crawford & Co., 6 Y 45 26 N E 966, 22 Am. St. Rep. Pa. Super. Ct. 452; Megargee v. gQ^ '' ' Lonrraker, 10 Pa. Super. Ct. 491; 97 Reed V. St. John, 2 Daly (N. Y.) Train or v. Schutz, 98 Minn. 213. 107 213. N. W. 812. 1532 STIPULATIONS FOR RENEWAL OR EXTENSION. ^ 223 he miLst seek other premises,i°^ and it will, it seems, be strictly applied.^*'^ § 223. Election by lessee to renew — Notice to lessor. In order to obtain the benefit of a covenant for renewal, in jurisdictions where such a covenant is clearly distinguished from a mere option to extend, the lessee must, at least at law, before the end of the previous term, notify the owner of the reversion of his desire for a renewal.^^^ Frequently, especially in Eng- land, the lease itself names the time at which such notice is to be given, and such a requirement must ordinarily be complied With.104.105 The notice or demand for renewal need not be in writing un- less the lease expressly so provides.^"^ And any requirement 101 Lane v. Nelson, 167 Pa. 602, 31 noud v. Daskam, 34 Conn. 512. But Atl. 864. in Brewer v. Conger, 27 Ont. App. 102 See Gardiner v. Bair, 10 Pa. 10, it was considered that, when the Super. Ct. 74. covenant was to grant another lease 103 Eaton v. Lyon, 3 Ves. Jr. 690; "provided the lessee should desire City of London v. Mitford, 14 Ves. to take a further lease," the exis- Jr. 41; Nicholson v. Smith, 22 Ch. tence of a desire was sufficient, with- Div. 640; Shamp v. White, 106 Cal. out the giving of any notice thereof. 220, 39 Pac. 537; Thiebaud v. First 104,105 gee Rubery v. Jervoise, 1 Nat. Bank of Vevay, 42 Ind. 212; Term R. 229; McFadden v. McCann, Maughlin v. Perry, 35 Md. 352; 25 Iowa, 252; Jackpon Brew. Co. v. Caggiano v. Gallorenzi, 26 Misc. 819, Wagner, 117 La. 875, 42 So. 356; 57 N. Y. Supp. 2; McCiintock v. Murtland v. English, 214 Pa. 325, Joyner, 77 Miss. 678, 27 So. 837, 78 63 Atl. 882, 112 Am. St. Rep. 747; Am. St. Rep. 541; Atlantic Product Morgan v. Goldberg, 9 Misc. 156, 29 Co. V. Dunn, 142 N. C. 471, 55 S. B. N. Y. Supp. 52. In I. X. L. Furnl- 299; Mack v. Eckerlin, 27 Ohio Cir. ture & Carpet Installment House v. Ct. R. 133. See I. X. L. Furniture Berets, 32 Utah, 454, 91 Pac. 279, & Carpet Installment House v. Ber- it was held that a provision for the ets, 32 Utah, 454, 91 Pac. 279. So a making' of a renewal lease upon the covenant that, after the expiration lessee's election, "at the expiration of said term of five years, the les- of the term." required the election sor -will, if thereto desired by the to be made before the term actually lessee, make and execute a lease expired. for the further term of five years, loc Darling v. Hoban, 53 Mich, upon the same terms, was held not 599, 19 N. V/. 545; Broadway & S. A. to entitle the lessee to exercise his R. Co. v. Motzger, 27 Abb. N. C. 160, election after the original term. Re- 15 N. Y. Supp. 662. § 223 ELECTION BY LESSEE TO RENEW. 1533 as to demand or notice may be waived by the owner of the reversion,!^^ as in the case of an option for extension.!*^^ Though the lessee need not demand a renewal before the last day of the term, any statement previously made by him to the lessor as to his intention in this respect, if acted on by the lessor, is, it seems, binding on him.io^ The lessee may, ordinarily, make the demand for renewal before the end of the original term if he chooses so to do,i^° The English courts of equity have in some cases asserted with considerable strictness the necessity that the demand for renewal and payment of the prescribed line be promptly made at the time named, or before the end of the original term, in order that the lessee may have specific performance or other equitable re- lief,m while in other cases they appear to have relieved against delay in this respect, under particular circumstances, with consid- erable freedom.112 jn this country, it has been decided in several cases that equity would not relieve against a failure through forgetfulness or negligence to give notice at the time named, the parties having evidently intended that time should be of the essence of the contract for renewal.ii^ In one case specific performance was decreed when the failure to demand a renewal was owing to physical injury totally incapacitating the lessee from transacting business,ii* and in another, when such failure 107 Viany v. Ferran, 5 Abb. Pr. (N. "2 Hunter v. Hopetoun, 13 Law T. S.; N. Y.) 110. (N. S.) 130; Ross v. Worsop, 1 108 See ante, at notes 88-95. Brown Pari. Gas. 281; Rawstorne v. 109 See McClintock v. Joyner, 77 Bentley, 4 Brown Ch. 415; Statham Miss. 678, 27 So. 837, 78 Am. St. ReP. v. Trustees of Liverpool Docks, 3 541; Chaufller v. McGinning, 8 Kan. Younge & J. 565. And see Brewer App. 421, 55 Pac. 103; Moss v. Bar- v. Conger, 27 Ont. App. 10. ton 35 Bcav. 197. ^^^ Dikeman v. Sunday Creek 110 Tracy v. Albany Exch. Co., 7 Coal Co., 184 111. 546, 56 N. E. 864; N. Y. (3 Seld.) 472, 57 Am. Dec. Thiebaud v. First Nat. Bank of 538; I. X. L. Furniture & Carpet Vevay, 42 Ind. 212; Doepfner v. Bow- Installment House V. Berets, 32 ers, 55 Misc. 561, 106 N. Y. Supp. Utah, 454, 91 Pac. 279. 932; Keppler Bros. Co. v. Heinrlchs- 111 Allen V. Hinton, 1 Fonbl. Eq. dorf, 26 Ohio Cir. Ct. R. 16; I. X. L. 432; Baynham v. Guy's Hospital, 3 Furniture & Carpet Installment Ves'. Jr. 295; City of London v. Mit- House v. Berets, 32 Utah, 454, 91 ford, 14 Ves. Jr. 41; Wight v. Hope- Pac. 279. toun, 4 Macq. H. L. Cas. 729: Nich- :i4Monihan v. Wakelin, 6 Ariz. Olson V. Smith. 22 Ch. Div. 640. 225, 56 Pac. 735. 1534 STIPULATIONS FOR RENEWAL OR EXTENSI0I<5. § 223 ■was owing to the lessee's mistake as to the time of the end of the term, a mistake which was owing in part to statements of the lessor's agent, and the lessee had made valuable improve- ments on the premises.^ ^^ In Maryland, quite frequently, consideration has been given to the right of one, holding under a form of lease there current, "for ninety-nine years, renewable forever," to specific perform- ance of the covenant for renewal, when he failed to demand a renewal before the termination of the previous term, and it has been there decided, following the Irish decisions, in which the right of renewal in such cases has been strongly asserted,^^^ that in view of the well understood intention of the parties to such leases in that community, to vest a permanent interest in the lessee, there is a "local equity" in the lessee or his assignee to a renewal, which is lost only by gross laches.^ ^^ Accordingly, the tenant was held to be entitled to a renewal though the lessee failed to demand a renewal before the end of the first term, when his oversight in this respect was due to the failure of the land- lord to demand rent for several years previous thereto, he having, immediately upon the bringing of ejectment by the landlord, three years after the end of the term, applied for a decree of specific performance.^ ^^ And a delay of seven years in this re- gard was likewise held not to prevent a decree for specific per- formance, the rent not having been claimed for many years, the reversion being vested in numerous parties scattered through dif- ferent states, and the tenant supposing that the reversionary rights had in some way become extinguished.^^^ So in Virginia it was decided that the lessee under such a lease was entitled to specific performance of the covenant, though he did not demand a renewal or tender the prescribed fine till several years after the end of the term, the lessor having continued during that time to accept rent as before without objection.^20 ^j^g same 115 New York Life Ins. & Trust Co. Myers v. Silljacks, 58 Md. 319, 42 V. St. George's Church, 12 Abb. N. Am. Rep. 332. C. (N. Y.) 50. lis Banks v. Haskie, 45 Md. 207. 116 See Lennon v. Napper, 2 119 Worthington v. Lee, 61 Md. S^hoales & L. 684; Boyle v. Lysaght, 530. Vern. & S. 135; O'Neill v. Jones, 1 120 Selden v. Camp, 95 Va. 527, 28 Ridg. P^rl. Cas. 170. S. E. 877. 117 Banks v. Haskie, 45 Md. 207; §223 ELECTION BY LESSEE TO RENEW. 1535 principle, that laches, to prevent renewal, must be gross, has been asserted in a case in New York, in connection with a short- time lease.^^^ In some jurisdictions, in the case of a covenant to renew, as in that of a provision for extension,i22 the retention of possession by the tenant has been regarded as sufficient to indicate his elec- tion to hold for the additional period,i23 the lease itself not im- posing in express terms any requirement as to notice.124 i^ other jurisdictions, however, a covenant for renewal being re- garded as distinct from a provision for extensicn, such retention of possession alone has been decided to be insufacient to vest any rights in the tenant.i^s The rule of these latter decisions is in effect asserted by the cases above discussed, recognizing the necessity of a demand for a renewal lease previous to the end of the previous term, they ignoring any possibility that the lack of such demand could be supplied by the tenant's retention of possession.^26 There seems no particular reason why such re- tention of possession, whether or not with the landlord's consent, 121 Reed v. St. John, 2 Daly (N. Y.) 213. 122 See ante, § 222 a. i23Holley V. Young, 66 Me. 520; McBrien v. Marshall, 126 Pa. 390, 17 Atl. 647 (semble); Creighton v. Mc- Kee, 2 Brewst. (Pa.) 383 (semble); Canal Elevator & Warehouse Co. v. Brown, 36 Ohio St. 660 (semble); Kelso V. Kelly, 1 Daly (N. Y.) 419; Clendenning v. Lindner, 9 Misc. 68^, 30 N. Y. Supp. 543; Ewing v. Miles, 12 Tex. Civ. App. 19, 33 S. W. 235; Caley v. Thornquist, 89 Minn. 348, 94 N. W. 1084; Quade v. Fitzloff, 93 Minn. 115, 100 N. W. 660; Insur- ance & Law Bldg. Co. v. National Bank, 71 Mo. 58; Ranlet v. Cook, 44 N. H. 512, 84 Am. Dec. 92. See Clarke v. Merrill, 51 N. H. 415; Wright V. Kayndr, 150 Mich. 7, 14 Det. Leg. N. 631, 113 N. W. 779; Harding v. Seeley, 148 Pa. 20, 23 Atl. 1118, and Lewis v. Perry, 149 Mo. 257, 50 S. W. 821, as favoring this view. 124 See Murtland v. English, 214 Pa. 325, 63 Atl. 882, 112 Am. St. Rep. 747. 125 Thiebaud v. First Nat. Bank ol Vevay, 42 Ind. 212; Montgomery v. Hamilton County Com'rs, 76 Ind. 362, 40 Am. Rep. 250; Terstegge v. First German Mut. Ben. Soc, 92 Ind. 82, 47 Am. Rep. 135; Shamp v. White, 106 Cal. 220, 39 Pae. 537; Kollock V. Scribner, 98 Wis. 154, 73 N. ¥/. 776; Andrews v. Marshall" Creamery Co., 118 Iowa, 595, 92 N. W. 706, 60 L. R. A. 399, 96 Am. St. Rep. 412. In Huger v. Dibble, 8 Rich. Law (S. C.) 222, it was de- cided that a tenant occupying and paying rent after the original term was a tenant from year to year and did not hold under the agreement to renew. 126 See ante, at note 103. 1536 STIPULATIONS FOR RENEWAL OR EXTENSION. § 224 should be regarded as showing a desire to have the landlord exe- cute a renewal lease for the whole period named in the provision for renewal.^ 27 In one state ^^^ there is a statutory provision that, in the case of a lease with a covenant for perpetual renewal, the retention of possession by the lessee, or by a person claiming under him, for the period of twelve months, shall raise a conclusive presump- tion "in favor of said lessee or person claiming under him" that a new lease was executed before the expiration of the prior term. It seems that, apart from statute, the maldng of a renewal lease may occasionally be inferred from the conduct of the parties.^ -^ The construction and effect of any specific requirements as to notice would presumably be the same whether the stipulation is for a renewal or for an extension, and the same considerations would apply in the two cases in determining whether there has been a waiver of any such requirement. The decisions upon these matters have been previously referred to.^^o § 224. Election by lessor. Ordinarily the stipulation for renewal is so expressed as to bind the lessor to grant a renewal, without binding the lessee to take it, thus leaving the question of renewal optional with the lossee.i^^ Occasionally, however, the option is vested in the les- sor, so that the lessee is bound to accept the renewal if ten- dered.^^2 And so the lessee may agree to take a renewal in a cer- tain contingency, which contingency is itself in part dependent on the election of the landlord.^^-^ A covenant by the lessor to renew the lease or to sell to the lessee has been construed as 127 See Andrews v. Marshall Manny, 52 Mo. 497; Com. v. McNeile, Creamery Co., 118 Iowa, 595, 92 N. 8 Phila. (Pa.) 438. W. 706, 60 L. R. A. 399, 96 Am. St. i32 Darling v. Hoban. 53 Mich. 599, Rep. 412. 19 N. W. 545; Stephens v. Hotham, 1 1^? Maryland Code Pub. Gen. Laws, Kay & J. 571. See Laroussini v. art. 21, § 91. Werlein, 48 La. Ann. 13, 18 So. 704. 120 See "Wallace v. Dorris, 218 Pa. iss As when the lessee agrees to 534, 67 All. 858. take a renewal in case the lessor 130 See ante, § 222 b. obtains a renewal of his lease or 131 See Swank v. St. Paul City R. procures the fee simple title. See Co., 72 Minn. 380, 75 N. W. 594; Canal Elevator & Warehouse Co. v. Bruce v. Fulton Nat. Bank, 79 N. Brown, 36 Ohio St. 660. Y. 154, 35 Am. Rep. 505; Butler v. S 225 COMPLIANCE BY LESSEE WITH COVENANTS. 1537 making it optional with the lessee which he will do,^34, as has a covenant to renew or to purchase the lessee's improvements.^^ When the lessor, rather than the lessee, is given the option as to a renewal, the election may, it has been held, be made on the last day of the term, without any writing or tender of a new lease if the tenant is in possession and the first lease specifies the conditions of renewaL^^^^^ The lessor's action in proceeding to appraise the value for the purpose of fixing the rent for the renewal term, thereby imposing expense and trouble upon the lessee, constitutes a sufficient election to grant a renewal, it haa been decided. ^^^ A provision for an extension, as distinguished from one for renewal, ordinarily makes the extension optional with the lessee and not the lessor. There is, however, it seems, no reason why a lease for a certain term should not provide that the lessor may, at his option, treat it as a lease for a further term, this m effect constituting a lease for the sum of the two terms, subject to termination at the option of the lessor at the end of the first term.i^se § 225. Compliance by lessee with covenants and conditions. Quite frequently it is provided that the lessee's right to a re- newal shall be dependent upon his previous compliance with his covenants, and such a provision has ordinarily been strictly applied as against the lessee.^^^ So it has been decided that where the renewal is in terms conditioned on compliance with covenants, if at the time a renewal is applied for there is an existing right of action in favor of the landlord for the teaant s breach of covenant, the right of renewal is lost, although the breach (as of a covenant to repair) is trivial in character. And where the tenant had not performed the covenants to repair ,, 8 o.o Petroleum Co., 141 Cal. 161. 74 Pac. 134 See post, § 2b8. ^^^ , -J J <-T,„+ tho fart o \^of R 971 a 700, it was decided that the tact ;:: f^arun ' iHohan, 53 Mich, that the lessor might have as .00 iqTw 545 verted a forfeiture for breach of ::rCro.by V ■ Moses, 48 N. Y. such covenants and did not do so Super Ct (16 Jones &S.) 146, 92 N. was immaterial, buper. ^^. y -.3t Pehrman v. Barto, 54 Cal- 131; ^' +^ ot R 19P Finch V Underwood, 2 Ch. Dlv. 310; 185C Compare ante, at § 12e. ±(incnv. u ^o ni, nw 9^8 X36in Swift V. occidental Min. & Bastin v. Bidwell, 18 Ch. Div. 238. L. and Ten. 97. 1538 STIPULATIONS FOR RENEWAL OR EXTENSION. § 225 and insure, the court refused specific performance of a covenant to renew ''provided the rent should have been paid and the cov- enants kept."^^^ Where the covenant was to renew the lease at the expiration of the term, "if not sooner determined by the lessee's acts and defaults," it was held that breaches of cove- nant by him defeated his right to renewal, although, owing to the landlord's ignorance of such breaches, he had not asserted hia right to enforce a forfeiture of the term.i^^ The fact that the landlord had, in such a case, by acceptance of rent, waived his right to assert a forfeiture of the term,^^*^ was in England held not to entitle the tenant to the benefit of the covenant to re- new.i^i In one state, however, the fact that the landlord had waived his right to a forfeiture for breach of condition was ap- parently regarded as a waiver of his right to refuse renew^al on that ground.1^2 That there has been a breach of the covenant against assign- ment has been held to exclude the right of renewal, this being expressly made dependent on performance of covenants, even though there was a reassignment back to the lessee.^^^ The fact, however, that the rent was not paid when due does not exclude the right of renewal, it has been decided, if the rent is afterwards accepted, even though such right is in terms excluded by the lease in case of default in any covenants.^*-* It does not appear to have been decided whether a mere delay in performance of covenants other than that for payment of rent, such as that to make repairs, would bar a lessee whose right to renewal is con- 138 Job V. Banister, 2 Kay & J. 374, 880, 124 Am. St. Rep. 525; post, note afd. 3 Jur. (N. S.) 93. 148. In Garnhart v. Finney, 40 Mo. 139 Thompson v. Guyon, 5 Sim. 449, 93 Am. Dec. 303, the fact that 65. the lessor accepted rent from the 140 See ante, § 194 i (1) (b). assignees and permitted them to 141 Bastin v. Bidwell, 18 Ch. Div. make improvements as provided in 238; Finch v. Underwood, 2 Ch. the lease, and did not enforce forfeit- Dlv. 310. ure of the term for breach of the cov- 142 Garnhart v. Finney, 40 Mo. 449, _ enants against assignment, was re- 93 Am. Dec. 303. garded as a waiver, precluding a re- 143 Mcintosh V. St. Phillips fiisal of a renewal on this ground. Church, 54 N. Y. Super. Ct. (22 144 Lyons v. Osborn, 45 Kan. 650, Jones & S.) 291. See, also. Finch v. 26 Pac. 31 (option to extend); Sel- Underwood. 2 Ch. Div. 310; Squire v. den v. Camp, 95 Va. 527, 28 S. E. 877. Learned, 196 Mass. 134, 81 N. E. ^ 225 COMPLIANCE BY LEyBBE WITH COVENANTS. 1539 ditioned upon the performance of covenants, he having complied with the covenant before the time for demanding a renewal. J^n insufficient performance of such a covenant may, it has been decided, be accepted by the lessor as a complete performance, so as to entitle the lessee to a renewal.i^« It appears to be the rule in one state that, even when compliance by the lessee with his covenants is not in terms made a condition precedent to the right of renewal, his failure in this respect will be ground for refusing specific performance of the covenant for renewal.14' And elsewhere it has been said that specific performance will not be decreed if there is a provision for re- ertry which would put an end to the renewed lease, or if there has been a gross breach of covenant, which could not be com- pensated by damages.1^8 It has on the other hand been decided that the pavment of all arrears of rent is not a condition pre- cedent to the right of renewal, in the absence of any provision to that effect.1^9 An actual re-entry for breach of condition, if not relieved against, destroys the right of renewaL^^o ^ ^ By his renewal of a lease the lessor does not waive his right 145 See Bastin v. Bidwell, 18 Ch. lessor had a right of re-entry, should ^. „„<5 not have a specific performance of UlV. Zoo. i. 1 >> 140 Garnhart v. Finney, 40 Mo. 449, an agreement for a lease. OS Am Dec 303 (covenant to erect Where the person applying for buildings) And see to the same specific performance is an assignee effect Job v Banister, 3 Jur. (N. S.) of the leasehold, the fact that the assignment to him was in violation 147 Gannett v. Albree, 103 Mas-, of a covenant of the lease seems 372- 'Squire v Leirued, 196 Mass. ground for refusal of specific per- 134' 81 N E 880 124 Am. St. Rep. ' formance, since the lessor was en- 525' See an implication to this titled to rely on the lessee's person effect in Incorporated Soc. in Dub- al responsibility. See Finch v. Un- lin V Rose 3 Ir. Eq. 257. derwood, 2 Ch. Div. 310; Squire v. 148 Per Cranworth, L. C, in Hare Learned, 196 Mass. 134, 81 N. E. 880, V Surges, 5 Wkly. Rep. 585. In 124 Am. St. Rep. 525. Hill v Barclay, 18 Ves. Jr. 56, Lord 149 Tracy v. Albany Exch. Co., 7 Chancellor Eldon said: "I have in- N. Y. (3 Seld.) 472, 57 Am. Dec. timated my opinion that a tenant 538; Kelly v. Varnes, 52 App. Div. who has committed waste, treated 100, 64 N. Y. Supp. 1040. Compare the land in an unhusbandlike man- Kentucky Lumber Co. v. Newell. 32 ner and been guilty of various Ky. Law Rep. 396, 105 S. W. 972. breaches of covenant, for which the "oMulloy v. Goff, 1 Ir. Ch. 27. 1540 STIPULATIONS FOR RENEWAL OR EXTENSION, § 226 of action on account of the breach of a stipulation of the original loase/^i even though the stipulation be one for the making of certain improvements, and this stipulation is repeated in the renewal lease.^^^ § 226. Form of renewal. The lease may be renewed by an endorsement thereon,i53 pj-Q. vided this satisfies the requirements of the Statute of Frauds. If the original lease contains a covenant for successive renew- als, it is immaterial, it seems, that the first renewal lease eon- tains no covenant for a further renewal,^^^ though such omission may perhaps afi^ect the construction of the original covenant.^^^ A new oral lease, extending the period of the holding of a tenant who is in under a lease under seal, is not invalid as a parol modification of an executory agreement under seaL^^*^ The lease by which possession was originally given is not an executory agreement but is a conveyance, and the second lease is another eonveyance.i^''^ A subsequent agreement by indenture, that the lessee may con- tinue to occupy after the expiration of the term, until remuner^ ated from rents and profits for improvements made by him, has been regarded as valid and operative.^^s j^^^^ ^ mere agreement for the making of a renewal lease for another year has been regarded as binding the lessee's estate for the rent of such year, though no lease was made, owing to the lessee's death shortly after the expiration of the original term.^^a In order, however, that an agreement, made subsequently to the making of a lease 151 See McGregor v. Board of Edu- 288, 43 N. E. 393; Martin v. Topliff, cation, 107 N. Y. 511, 14 N. E. 420; 88 111. App. 362. Buhier v. Gibbons, 3 N. Y. Supp. 815. 157 See ante, § 16. 152 Walker V. Seymour, 13 Mo. 592. iss Batchelder v. Dean, 16 N. H. 153 See Grain v. Dresser, 4 N. Y. 265. Super. Ct. (2 Sandf.) 120; Pitts- "o American Security & Trust Co. burgh Mfg. Co. v. Fidelity Title & v. Walker, 23 App. D. C. 583. The Trust Co., 207 Pa. 223, 56 Atl. 436. reasoning of the opinion is not en- 154 Gomez v. Gomez, 81 Hun, 566, tirely clear. There is a reference 31 N. Y. Supp. 206. to the doctrine of estoppel. It is iBsWurster v. Armfield, 67 App. possible, hov.'ever, that the court re- Div. 158, 73 N. Y. Supp. 609. garded the agreement as constitut- 156 West Chicago St. R. Co. v. Mor- ing an actual lease, it being said rison, Adams & Allen Co., 160 111. that tile holding over was "upon an § 227 TERMS OF NEW TENANCY. 1541 for a certain time, may have the effect of giving the lessee a right to continue in possession after such time, in the contempla- tion, at least, of a court of law, it v^ould seem to be necessary that such agreement be construed to operate as a lease. A mere agreement for extension, made subsequently to the making of the lease, cannot, it is conceived, change the operation of the previous conveyance 160 § 227. Terms of new tenancy — Applicability of former stipula- tions. As previously stated, the provision for renewal is presumed to contemplate a new lease with the same covenants and stipu- lations as the original lease, except that for renewai/^^ unless it express contract renewing tlie the later arrangement or agreement lease." was itself a lease. So in Wood v, 160 That a lease for a certain per- Edison Elec. Illuminating Co., 184 led cannot be made to operate as Mass. 523, 69 N. E. 364, 100 Am. St. a lease for a greater period merely Rep. 573, an "agreement" by which because the parties agree that it a lease was extended for five years shall so operate would seem to be and eight months was regarded as beyond question. In order to trans- the exercise of aji option to extend fer an estate for the additional per- for five years contained in the orig- iod, a lease, that is, a conveyance, inal lease, without any explanation is necessary. There is no more rea- by the court as to how the right to son that the parties should be able the possession for the extra eight by agreement to cause a lease for months could be divested out of the one year to operate as a lease for lessor and vested in the lessee, with- eighteen months, for two years, or out a conveyance thereof. See, also, for ninety-nine years, than that they the statement of the N&w York Court should be able so to cause it to of Appeals in Ward v. Hasbrouck, operate as a conveyance in fee sim- 169 N. Y. 407, 62 N. E. 434, ante, pie. There are, however, at least note 1. dicta by a court of high standing ici w^alker v. Wadley, 124 Ga. 275, opposed to this view. In DeFriest 52 S. E. 904; Belinski v. Brand, 76 V. Bradley, 192 Mass. 346, 78 N. E. 111. App. 404; Hughes v. Windpfen- 467, it is said that "it was within nig, 10 Ind. App. 122; Brown v. Par- the contractual power of the parties sons, 22 Mich. 24; McAdoo v. Callum, by a later arrangement to prolong 86 N. C. 419; Bamman v. Binzen, 65 the term although the lea^e was Hun, 39, 19 N. Y. Supp. 627; Phelps silent on this subject," and that "the v. City of New York, 61 Hun, 521, original demise was thereby length- 16 N. Y. Supp. 321; Whalen v. Leisy ened to cover the longest time Brew. Co., 106 Iowa, 548, 76 N. W. named." There is no suggestion that 842; Western New York & P. R. Co, 1542 STIPULATIONS FOR RENEWAL OR EXTENSION. § 227 is otherwise expressly provided.^^^ ^ stipulation clearly appli- cable only to the original lease is not, however, to be incorporated in the renewal lease.^*^^ V. Rea, 83 App. Div. 576, 81 N. Y. E. 726. In Walsh v. Martin, 69 Supp. 3093; Bernstein v. Heineniann, Mich. 29, 37 N. W. 40, it was tield 23 Misc. 464, 51 N. Y. Supp. 467 (de- that an indorsement on the lease posit to secure rent). giving to the lessee the "privilege Where a lease provided that, un- of occupying" the premises, with less notice was given by the lessor additional ground, for anoi.her term, six months before the expiration of and giving the lessor a right to the the term of fifteen years, to the improvements erected by the lessee, effect that he would then take pos- a right not given by the original session and pay for certain build- lease, was a "new leasing, and not Ings to be erected by the lessee, the an extension of the old lease," and lease should be deemed to be re- consequently was not subject to a newed for another term of five years provision of the latter prohibiting an upon the same terms and conditions, assignment. It was held that the lessee's right les Hill v. Beatty, 61 Cal. 292. to payment for the buildings con- In Rutgers v. Hunter, 6 Johns, tinued after the expiration of the Ch. (N. Y.) 214, it is said by first fifteen years, if the lease was Chancellor Kent: "It would be not then terminated, and the lessor absurd to suppose that an agree- was liable for the buildings upon ment to renew a lease did necessar- his termination of the lease at any ily imply a lease, not only of the subsequent five-year period. Schoell- same term and rent, but also with kopf V. Coatsworth, 166 N. Y. 77, 59 all the covenants in the other, and N. E. 710. Compare Precht v. How- which are the accidental and not the ard, 187 N. Y. 136, 79 N. E. 847. essential parts of a lease. In the It has been decided that the re- first lease, there was a covenant on newal of a lease did not involve the the part of the lessee to build a renewal of a contract, made during good brick dwelling house within two the currency of the first lease, to years. This was a covenant that furnish steam. Slack v. Knox, 213 had no necessary and could not have 111. 190, 72 N. E. 746, 68 L. R. A. 606, any reasonable connection with the distinguishing Thomas v. Wiggers, renewal of the lease; and the same 41 111. 470, on the ground that there observation will apply to the cov- the contract to furnish steam was enant on the part of the lessor to contained in the original instrument pay, at the expiration of the lease, of lease and was part of the con- the value of such house, and of sideration for the rent agreed to be other buildings and improvements to paid. be made, built and erected on the 1R2 An express provision as to the lot, or to renew the lease." So in covenants to be inserted in the re- Pierce v. Grice, 92 Va. 763, 24 S. E. newal lease must obviously be com- 392, it seems to be decided that an plied with. See Martin v. Babcock option in the lessor to pay for build- & Wilcox Co., 186 N. Y. 451, 79 N. ings or to renew is not to be in- § 227 TERMS OF NEW TENANCY. I543 It has been decided that where one, to whom a leasehold in part of the premises had been assigned, thereafter created an easement in favor of the assignee of the other part, the ease- ment continued upon the granting of renewal leases to such as- signees.^ ^^ A renewal of a lease upon the same "terms" was held to give the lessors the same option to terminate upon six months' notice as was given by the original lease,^''^ and a con- tract to renew "on the same terms and conditions" has been regarded as entitling the lessor to demand, as a condition of re- newal, a surety for rent equal to the one furnished on the orig- inal leasing.^ ^^ Covenants in the renewal lease are, it has been said, to be construed as if the renewal constituted the inception of the re- lation of landlord and tenant between the parties.^'*''' In the case of extension under an option in the lessee, as in that of a renewal under a covenant, the stipulations named in the original term continue into the extended period.^ ®8 j^^it in one case, where the provision for extension was oral, it was stated to be a question for the jury whether certain terms of the lease were to be applied to the extended period.^^^ serted in the renewal lease. But it lee piper v. Levy, 114 La. 544, 38 was decided that, where a lease pro- So. 448. Tided that a holding over by the igt Phelps v. City of New York, 61 lessee for thirty days should be con- Hun, 521, 16 N. Y. Supp. 321. strued as a renewal of the lease on les Betts v. June, 51 N. Y. 274. the same terms and conditions for As to the construction of a provi- another twelve months, such holding sion for notice to terminate, as ap- over involved an extension of the plying to the extended term as well lessor's covenant to make certain re- as to the original term, see McGregor pairs. Harthill v. Cook's Bx'r, 19 v. Rawle, 57 Pa. 184; Wilcox v. Ky. Law Rep. 1524, 43 S. W. 705. Montour Iron & Steel Co., 147 Pa. And see In re Coatsworth, 160 N. Y. 540, 23 Atl. 840; Ashurst v. Eastern 114, 54 N. E. 665, ante, note 161. Pennsylvania Phonograph Co., 166 164 Newhoff V. Mayo, 48 N. J. Eq. Pa. 357, 31 Atl. 116. 619, 23 Atl. 265, 27 Am. St. Rep. 455. ifis Powers v. Cope, 93 Ga. 248. 18 165 Quidort v. Bullitt, 60 N. J. Law, S. E. 815. In Wood v. Edison Elec. 119, 36 Atl. 881. And to the same Illuminating Co., 184 Mass. 523, 69 effect, see DePriest v. Bradley, 192 N. E. 364, 100 Am. St. Rep. 573, it Mass. 346, 78 N. E. 467, where it was regarded as a question for the was held that an oral agreement for jury in the particular case whether an extension, not giving such an an extension of the lease agreed up- option, was merged in a subsequent on by the parties during f]-\e terra written extension. was intended as an exercise of an 1544 STIPULATIONS FOR RENEWAL OR EXTENSION, § 228 § 228. Appraisement to ascertain rent. It is not infrequently the case that the parties, in agreeing for the renewal or extension of the lease, provide that the amount of rent to be paid during the term of such renewal or extension shall be fixed by a person or persons named, or to be named, the provision usually stipulating that the rent shall be a certain per- centage upon the value of the property as determined by such person or persons. ^"^^ It has been held that when the lease provided that a renewal should be granted at such "increased" rent as might be awarded by arbitrators, the arbitrators were bound to award an increased rent, but that a nominal increase was sufficient.^'^i The value of the land, for the purpose of fixing the rent by arbitration, is, it has been decided, its value exclusive of the buildings which may have been erected by the tenant under the lease.^'^^ In case one of the parties refuses to carry out such an agree- ment, by joining in the naming of appraisers for this purpose, he waives his right to the renewal, it has been decided, at the option of the other party.^^^ Rut the landlord's delay in this regard has been held not to afl'ect his right to collect rent for the whole of the new term on the basis of the new valuation, this having been finally made.^^^ For such a breach of his contract, either party is liable in damages in an action at law.^"^^ The question whether equity will decree specific performance of such an agreement to renew or extend the lease, at a rent to be determined by third persons, is one of some difficulty. That it will not do so has occasionally been asserted, on the ground, option to extend contained in the Van Brocklin v. Town of Brantford, lease, so as to make applicable a 20 U. C. Q. B. 347. provision in such option as to pay- i^s Wells v. DeLeyer, 1 Daly (N. ment of taxes. Y.) 39. iTo As to the ascertainment of the 174 Hegan Mantel Co. v. Cook's value in the case of adjoining par- Adm'r, 22 Ky. Law Rep. 427, 57 S. eels leased by separate demises by W. 929. the same lessor to the same lessee, 175 Garnhart v. Finney, 40 Mo. 449, see Livingston v. Sage, 95 N. Y. 289, 93 Am. Dec. 303; Greason v. Ketel- 47 Am. Rep. 41. tas, 17 N. Y. 491; Hopkins v. Oilman, 171 In re Geddes, 3 Ont. Law Rep. 22 Wis. 476. See Tscheider v. Bid- 75. die, 4 Dill. 58, Fed. Cas. No. 14,210. 172 In re Allen, 27 Ont. App. 536; § 338 APPRAISEMENT TO ASCERTAIN RENT. 1545 it is said, that to do so would in^'olve the specific performance of an agreement to submit to arbitration, a thing which equity- will always refuse.i'^^ It is very questionable, however, whether such an agreement for appraisement by third persons is properly to be considered one for arbitration,^" the purpose of the nomina- tion of such persons not being the settlement, by a quasi judicial inquiry, of a controversy which has already arisen, as is an ordi- nary arbitration, but rather the prevention of any future contro- versy from arising,! 7s and the more substantial objection to the award of specific performance in such a case is that the contract is incomplete so long as the amount of rent is undetermined, re- lief of that character not being granted in the case of an incom- plete contract.! "9 On this theory it has been decided in England that specific performance will not be decreed of a contract for the sale of land at a valuation to be determined by third per- sons.iso But a different rule has been applied there,! si and in at least one state,! §2 when such a provision for the ascertainment of the price can be regarded as subsidiary or nonessential, or the contract for the purpose of which the valuation is to be made is merely incidental to another contract, the contract being then in effect treated as one for a sale at a fair price, to be ascertained by the court if the provision for valuation by appraisers is not carried out. It is perhaps upon the theory that the provision for the determination of the rent upon a renewal can be thus re- garded as of a nonessential or subsidiary character,!^^ that it has "6 Greason v. Keteltas, 17 N. Y. Pomeroy, Spec. Perform. § 151. 491; Hopkins V. Oilman, 22 Wis. 476. 182 Town of Bristol v. Bristol & See Tscheider v. Biddle, 4 Dill. 58, Warren Waterworks, 19 R. I. 413, Fed. Cas. No. 14,210. 34 Atl. 359, 32 L. R. A. 740. ITT See 3 Cyclopedia of Law & Proc. is3 it seems to be so regarded In 583. Strohmaier v. Zeppenfeld. 3 Mo. App. ITS See In re Carns-Wilson, 18 Q. 429; Coles v. Peck, 96 Ind. 333, 49 B. Div. 7; Redman, Arbitrations (3d Am. Rep. 161; Springer v. Borden, Ed.) 3. 154 111. 668, 39 N. E. 603. In Goiir- 179 Fry, Spec. Perform, c. 3; Pom- lay v. Somerset, 19 Ves. Jr. 429, eroy. Spec. Perform. § 149 et seq. where there wag a contract to give" isoMilnes v. Gery, 14 Ves. Jr. 400; a lease with such conditions as A Darbey v. Whitaker, 4 Drew. 134; should think proper, it was held that Fry, Spec. Perform. § 355 et seq. the approval of A was not essential, 181 Hall V. Warren, 9 Ves. Jr. 605; and the court left the question of Richardson v. Smith, L. R. 5 Pn. the conditions of the lease to the 648; Fry, Spec. Perform. §§ 364-367; master. 1546 STIPULATIONS FOR RENEWAL OR EXTENSION. § 228 been decided that if either the lessor or lessee refuses to name an appraiser/^'* or they cannot agree upon one,^^^ or the one agreed upon cannot act,^^^ equity will decree specific perform- ance, the rent being fixed by a master or otherwise under the direction of the court. And one decision, to the effect that equity will itself fix the rent if the arbitrators disagree, is explicitly based on such theory. '^^'^ The fact that the lessee has made improvements upon the prem- ises on the strength of a stipulation for renewal or extension at a rent to be fixed by appraisement has, in one or two cases, been regarded as a reason for the grant of relief in equity in favor of the lessee.^ ^^ In one case it was decided that, while specific performance could not be granted in such case, equity had jurisdiction, on the ground of fraud, account, and prevention of a multiplicity of suits, of a bill by the lessor alleging that the lessee had refused to name impartial appraisers, and had sc- occupied the premises for several years without paying rent, and that the agreement also provided for an appraisement of the improvements, the lessor having the option of taking them at that valuation or of granting a renewal lease at the rent to be fixed by the appraisers.^ ^^ There is a decision to the effect that the tenant may, until the appraisement is made, consider himself tenant from year to year at the original rent, and that if delay in the appraisement is caused by the lessor, he may recover rent, until the new lease is tendered, at the rate fixed in the previous lease, and thereafter at the rate fixed by the appraisement.^ ^° 184 Kelso V. Kelly, 1 Daly (N. Y.) Weir v. Barker, 104 App. Div. 112, 419; Graham v. James, 30 N. Y. 93 N. Y. Supp. 732. Super. Ct. (7 Rob.) 468; Johnson is- Kaufman v. Liggett, 209 Pa. 87, V. Conger, 14 Abb. Pr. (N. Y.) 195; 58 Atl. 129, 67 L. R. A. 353, 103 Am. Strohmaier v. Zeppenfeld, 3 Mo. App. St. Rep. 9SS. 429. See Tscheider v. Biddle, 4 Dill. iss See Tscheider v. Biddle, 4 Dill. 58, Fed. Gas. No. 14,210. 58. Fed. Gas. No. 14,210; Kaufman v. isspiggot V. Mason, 1 Paige (N. Lig.gett, 209 Pa. 87, 58 Atl. 129, 67 L. Y.) 412; Springer V. Borden, 154 111. R. A. "53, 103 Am. St. Rep. 988. 668, 39 N. E. 603. i^n Biddle v. Ramsey, 52 Mo. 159. 186 viany v. Ferran, 5 Abb. Pr. (N. i9o Ryder v. Jenny, 25 N. Y. Super. S.) riG, 54 Barb. (N. Y.^ 5^9. And Ct. (2 Rob.) 56. so when cue of the appraisers died. § 229 QUALIFIED RIGHT TO RENEWAL OR EXTENSION. 1547 § 229. Qualified right to renewal or extension. Occasionally the provision for a renewal or extension is quali- fied by a provision extending its operation in a particular con- tioigency, or making it operative in a particular contingency A provision that the lessee should be entitled to a renewal or extension in case the lessor did not sell the premises ^^^ was held to be inapplicable when the lessor made a valid executory agree- ment of sale, entitling the vendee to a conveyance.^^^ Elsewhere it was held that such a provision referred to an open and notor- ious sale, and a sale and conveyance to the lessor's wife, of which the lessee had no notice, did not deprive him of the right to the crops sown by him after the end of the original term.i'^^ n -yy^s decided in one state that where the lease allowed a renewal un- less the "lessors" shall sell said premises, the right to a renewal was not defeated by the sale by one lessor of his interest in the premises. ^^^ But it has elsewhere been decided that a convey- ance to the lessor's son, by way of advancement, is a "disposing of" the premises within the meaning of a covenant by the lessor that if the lessee did not elect to exercise his option to purchase he might have a renewal, unless the lessor should "dispose of" the premises, and this even though the purpose of the conveyance was to avoid a renewal.^^^ A provision that the lessor shall grant a renewal unless the lessor wishes the land for building purposes justifies a grantee of the reversion in declining to renew if he desires to so use the i9oa The extension may, it appears, privilege became void in case of a "be dependent on the lessee's com- sale either before the commence- pliance with some condition, such ment of such two years or while as giving security for rent. See Mc- they were running. Knowles v. Fadden v. McCann, 25 Iowa, 252. Hull, 97 Mass. 206. 191 See Swank v. St. Paul City R. 102 Sutherland v. Goodnow, 108 Co., 61 Minn. 423, 63 N. W. 1088; 111. 528, 48 Am. Rep. 560. Pfanner v. Sturmer, 40 How. Pr. (N. 103 stark ey v. Horton, 65 Mich. 96, Y.) 401. Where the lease gave "the 31 N. W. 626. privilege of two years in addition 194 Ewing v. Miles, 12 Tex. Civ. unless the lessor shall sell," in App. 19. 33 S. W. 235. which case the privilege "shall be 195 Elston v. Schilling, 42 N. Y. 79. null and void," it was held that the 1548 STIPULATIONS FOR RENEWAL OR EXTENSION. S 230 land/o« but he cannot legally avoid a renewal in such case by leasing to another who contracts to build. ^^^ Where the lease provided that if the lessor should, during cer- tain months, "decide, by notice given to the lessee in writing," not to rebuild, then the lessee might elect to renew the lease, the lessee's right of renewal was held not to depend upon the giving of notice by the lessor, but upon the fact that he made the de- cision, the provision for notice being purely for the lessee 's bene- fit.i»8 Not infrequently there is a provision in the alternative, requir- ing the lessor either to renew or to pay for the lessee's build- ings.199 It has been decided, upon the construction of a particular lease, that a covenant to renew the lease was inapplicable when a part of the premises had been surrendered during the first term.'Oo EJsewhere it was decided that when a part of the leased premises had been condemned for public use before the time for exercising the option as to renewal, the lessor need tender a lease for so much only of the premises as remained in his pos- session and under his control.-^i § 230. Persons to whom stipulations available. A covenant by the lessor for renewal is one which runs with the land, and the assignee of the leasehold is entitled to the benefit thereof. 20 2 And the fact that the assignment is in terms 196 Leppla V. Mackey, 31 Minn. 75, N. E. 23, 2 L. R. A. 549. 16 N. W. 470. 202Buckland v. Papillon, L. R. 1 197 Broadway & S. A. R. Co. t. Eq. 477; Crosbie v. Tooke, 1 Mylne Metzger, 27 Abb. N. C. (N. Y.) 160 & K. 431; Sutherland v. Goodnow, (provision for extension). 108 111. 528, 48 Am. Rep. 560; Pitz' 198 Seaver v. Thompson, 189 111. gerald v. Jones, 96 Ky. 296, 28 S. W. 158. 59 N. E. 558. 963; Connor v. Withers, 20 Ky. Law 199 See post, § 271 a. Rep. 1326, 49 S. W. 309; McClintock 200 Barge v. Schiek, 57 Minn. v. Joyner, 77 Miss. 678, 27 So. 837, 155, 58 N. W. 874. The dissenting 78 Am. St. Rep. 541; Blackmore v. opinion of Canty, J., is based chiefly Boardman, 28 Mo. 420; Kolasky v, upon the ground that the words of Michels, 120 N.^ Y. 635, 24 N. the lease ("with the privilege to E. 278; Piggot v. Mason, 1 Paige the lessee of another term") did (N. Y.) 412; Barclay v. Steam- not provide for a renewal but mere- ship Co., 6 Phila. (Pa.) 558; Ear- ly gave the lessee an option of ex- bee v. Greenberg. 144 N. C. 430 57 tension. S. E. 125. A demand for the renew- »iLeiter v. Pike, 127 111. 287, 20 § 230 PERSONS TO WHOM STIPULATIONS AVAILABLE. 1549 only for the residue of the existing term is immaterial in this re- spect.203 So, no doubt, the assignee of the leasehold is entitled to the benefit of an option for extension, as distinguished from o.ne for renewal,^^^ unless the assignment is so expressed as to operate only on the original term. But though, it seems, in the case of such an option to extend, since there is an existing lease for the additional term,205 the assignment may be of the original term only, the assignor retaining the additional term, a different rule has occasionally been applied in the case of a cov- enant for renewal, this being regarded as inseparable from the original term.-'^'^ A lessee who has assigned is not liable for rent under a renewal lease made to his assignee,207 though he is liable, even after as- signment, if the renewal lease was made to him,208 as is a lessee who exercises his privilege of extension and afterwards assigns.^o^ Upon the bankruptcy of the lessee, the benefit of the renewal clause passes to the trustee in bankruptcy .210 Upon the death of the lessee, the right of renewal passes, along with the lease- hold, to his personal representative^!! al is properly made by the assignee, first term named. The opinion Is Warner v. Cochrane, 63 C. C. A. 207, obscure. Emery v. Hill, 67 N. H. 128 Fed. 553. S30, 39 Atl. 266, is also to the effect 203 Downing v. Jones, 11 Daly (N. that one to whom the leasehold is Y.) 245; Phelps v. Erhardt, 24 N. Y. assigned in violation of a covenant St. Rep. 380, 5 N. Y. Supp. 540. is not entitled to the benefit of an 204 See Wilkinson v. Pettit, 47 option to extend. Barb. (N. Y.) 230. In Fisher v. 205 See ante, § 218. Slattery, 75 Cal. 325, 17 Pac. 235, 20c Blackmore v. Boardman, 28 Mo. there are, perhaps, expressions to 420; Winton's Appeal, 111 Pa. 387, the effect that one who takes an as- 5 Atl. 240 ("privilege of refusal of signment, without the lessor's as- subsequent lease"). But in Owen sent, in violation of a covenant in v. Williams, Amb. 734, the right of the lease, is not entitled to the renewal is regarded as susceptible benefit of an option for an extension, of sale. But since a breach of such a cov- 2»7 James v. Pope, 19 N. Y. 324. enant does not, by the weight of 208 Thompson's Estate, 205 Pa. 555, authority, render the assignment in- 55 Atl. 539. valid (ante, § 152 j [2]), it is not 209 probst v. Rochester Steam apparent why it should affect th^- Laundry Co., 171 N. Y. 584, 64 N. E. assignee's right to enjoy the full 504. term, which, as appears above, is 210 Olden v. Sassman, 67 N. J. Eq. already existent for the full extend- 239, 57 Atl. 1075. ed period, though liable to be cut 211 Hyde v. Skinner, 2 P. Wme. off by the lessee at the end of the 196. 1550 STIPULATIONS FOR RENEWAL OR EXTENSION. § 231 If the leasehold in different parts of the leased premises is assigned to different persons, they may join, it has been decided, in demanding performance of a covenant for renewal. 212 If the leasehold belongs to two or more, one of them cannot exercise the right of election on behalf of all,^!^ and it has been decided that he cannot have the renewal lease made to himself alone, even though he has received an assignment of his colessee's interest, if there is a covenant against assignment and a provi- sion that the renewal shall be subject to the same covenants, these being regarded as indicating an intention that the cov- enants in the renewal lease should be joint and several on the part of both lessees. 21* In the case of a lease to a partnership, one partner cannot demand that a renewal lease be made to him after the withdrawal of the other partners from the business.^i^ A surviving partner may, however, demand a renewal on behalf of the partnership estate.^i^ § 231. Persons against whom stipulations available. A covenant by the lessor for renewal is binding on the grantee of the reversion, as being a covenant running with the land,^!'^ though he is entitled to the benefit of any qualification in the covenant, as when he is not to renew if he desires to use the land for other purposes.^is Likewise, the tenant may assert his optioo of an extension, as distinguished from that of rencAval, against the grantee of the reversion as well as against the les- sor.219 The grantee is, by reason of the lessee's possession, charged with notice of the lease and of the covenant for renewal 212 Cook V. Jones, 96 Ky. 283, 28 21G Betts v. June, 51 N. Y. 274. S. W. 9G0. ^^^ Richardson v. Sydenham, 2 213 Howell V. Behler, 41 W. Va. Vern. 447; Simpson v. Clayton, 4 610, 24 S. E. 64G. See Tweedie v. Bing. N. C. 758; Leiter v. Pike, 127 P. E. Olson Hardware & Furniture 111. 287, 20 N. E. 23, 2 L. R. A. 549; Co., 96 Minn. 238, 104 N. W. 895, Bratt v. Woolston, 74 Md. 609, 7 AtL 1089; Id., 98 Minn. 11, 107 N. W. 557. 563; Leominster Gaslight Co. v. Hil- 214 Finch V. Underwood, 2 Ch. Div. lery, 197 Mass. 267, 83 N. E. 870, 15 310. L. R. A. (N. S.) 243, 125 Am. St. 215 Buchanan v. Whitman, 151 N. Rep. 361. Y. 253, 45 N. E. 556; Id., 76 Hun, 67, 218 Leppla v. Mackey, 31 Minn. 27 N. Y. Supp. 604; James v. Pope, 75, 16 N. W. 470. 19 N. Y. 324. 219 Callan v. McDaniel, 72 Ala. 96. § 232 COVENANT BY SUBLESSOR TO RENEW. 1551 contained in the instrument,- 20 as he is by a reference to the lease in the conveyance to him.221 A covenant for renewal, made by one who has himself merely a limited interest in the land, such as a life estate, does not bind the land beyond that interest, and runs with the land only to the extent of that interest. Consequently, it cannot be enforced after the termination of such limited interest, even as against am assignee of such interest who acquires the reversion or re- mainder.222 § 232. Covenant by sublessor to renew. A sublessor who has covenanted with his own lessee to use his utmost endeavors to procure a renewal of his own lease is bound, it has been held, to pay any reasonable sum which may be re- quired for such renewal.223 And he is not relieved from his ob- ligation to fulfill his covenant with his lessee to renew by the fact that, in taking a new lease himself, he has been compelled to pay an increased rent, or to submit to more onerous conditions, nor is he thereby justified in charging an increased rent, or imposing upon the sublessee burdens greater than those imposed by his original lease.224 ''The only way by which the obligation of such a covenant (to renew for such further term as his own lease- hold estate may be renewed or extended) can be escaped is h}} the covenantor's abandonment of the estate, without a direct or indirect renewal of his own tenancy. "225 it has been decided 220 Cunningham v. Pattee, 99 Mass. Lloyd & G. t. Plunk, 283; John Pol- 248. See Shelburne v. Biddulph, 6 hemus Print. Co. v. Wynkoop 30 Brown Pari. Cas. 363. App. Div. 524, 52 N. Y. Supp. 420. 221 A. G. Corre Hotel Co. v. Wells- 225 Cunningham v. Pattee, 99 Mass Fargo Co., 63 C. C. A. 23, 128 Fed. 248, per Foster, J. As to the effect 587. of a provision in a sub!en,se to the 222 Brereton v. Tuohey, 8 Ir. C. L. effect that any rights or privileges 190; Postlethwaite v. Lewthwaite, 2 in regard to renewal granted by the Johns. & H. 237; Miller v. Trafford original lessor to the sublessor [1901] 1 Ch. 54. should enure to the benefit of the 223 Simpson v. Clayton, 4 Bing. N. sublessee, as entitling the sublessee ^- '^^^- to a renewal, see Robinson v. Beard, 224Revell V. Hussey, 2 Ball. & B. 140 N. Y. 107, 35 N. E. 441. As to 280; Evans v. Walshe, 2 Schoales & the effect of a provision for a pro L. 519; Thomas v. Burne, 1 Dru. & rata increase of rent to be paid by Walsh 657; Hackett v. McNamara, the subtenant in case an increase 1552 STIPULATIONS FOR RENEWAL OR EXTENSION. § 233 that, where a sublessee for a year, under one having a lease for a year, was given the right of renewal for four years, provided his lessor obtained an "extension" of his own lease, the sub- lessee was entitled to a renewal when his lessor obtained a new lease for ten years.226 § 233. Breach of covenant to rsnew — Remedies. In ease of a breach by the landlord of the covenant to renew, the lessor may recover damages therefor.227 The amount of re- covery has been stated to be the difference between the rental value of the premises and the rent which would have been paid under the renewal,22s and he may also, it seems, recover the value of improvements made by him.229 Generally speaking, it seems, the measure of damages for breach of a contract to make a renewal lease would be the same as that for breach of a con- tract to make an original lease.^^o If the lessee retains posses- sion during the whole term for which renewal was to be made, he cannot, it has been decided, recover for the landlord's refusal to execute a renewal lease.^^i has to be paid by the sublessor, see 44 Mo. 25, 100 Am. Dec. 252; Tracy Hennessy v. Kenney, 20 Misc. 405, v. Albany Exch. Co., 7 N. Y. (3 46 N. Y. Supp. 249. Seld.) 472, 57 Am. Dec. 538. 226Hansauer v. Dahlman, 18 App. 22s walcott v. McNew (Tex. Civ. Div. 475, 45 N. Y. Supp. 1088; Id., App.) 62 S. W. 815; Belding Bros. & 163 N. Y. 567, 57 N. E. 1111. The Co. v. Blum, 88 N. Y. Supp. 178; opinion assumes that a "renewal" is Neiderstein v. C^sick, 110 N. Y. strictly another lease for the same Supp. 287. And see McClowry v. term, while a lease for a different Croghan's Adm'r, 31 Pa. 22. term is not a "renewal" but is a 229 Garnhart v. Finney, 40 Mo. 449, "new" lease. Such a distinction 93 Am. Dec. 303. But Van Brocklin iiiab, however, apparently, no founda- v. Town of Brantford, 20 U. C. Q. tion in principle or authority. A re- B. 347, is apparently contra. newal lease is a new lease, by which 2^0 See ante, § 67 a. the tenancy is renewed, and the fact 231 Hegan Mantel Co. v. Cook's that the lease is for the same term Adm'r, 22 Ky. Law Rep. 427, 57 S. as the former lease, or for a differ- W. 929. The decision, however, ent one, does not change its charac- seems to be partly based on the ter as being both a renewal lease theory that the lessee had a perfect and a new lea^^e. right to possession without the exe- 227 McCllntock v. Joyner, 77 Miss, cution of a new lease, in effect that 678, 27 So. 837, 78 Am. SL Rep. 541: the covenant operated as a provision Garnhart v. Finney, 40 Mo. 449, 93 for extension. Am. Dec. 803; Arnot v. Alexander, § 233 REMEDIES FOR BREACH. ;[553 Tliere is a decision that where the lessor agreed that the les- see should "have the farm from year to year as long as the farm is to be let," a dispossession of the lessee at the end of the year, for the purpose of leasing to another, authorized a recovery of damages in covenant as for breach of such agreement."^^ jj,^. gar ding this, however, as a stipulation for an extension, which it appears to have been, it would seem that such a dispossession of the tenant, entitled to continue in possession, should be re- garded as an eviction, and should, therefore, be ground for re- covery only in an action of tort for the eviction, or in action on the covenant for quiet enjoyment. The lessee has, in such case, a vested leasehold interest for the period of the extension as well as for the original term, and the provision for extension does not, like a covenant for renewal, give the lessee a right in person- am against the lessor. "^3 In Kngland, and also in a number of states in this country, it is customary for courts of equity specifically to enforce a cov- enant to renew the lease.234 In case, however, a covenant so phrased is to be treated as merely equivalent to an option in the lessee for an extension,235 smae the lessee's title for the extended term is complete even at law without further act on the lessor's part, it does not seem that there is any ground for specific per- formance. In some cases equity may issue an injunction to re- strain proceedings at law brought by the lessor in defiance of the equitable right of the lessee to a renewal.^se Not infrequently, as heretofore indicated,-37,238 equity will give relief under circumstances precluding the assertion of the right of renewal at law, as when the lessee fails to promptly demand 282 Walley v. Radcliff, 11 Wend. Scribner, 98 Wis. 104, 73 N. W. 776. (N. Y.) 22, 25 Am. Dec. 594. Every person who has or claims an 233 See ante, § 216. interest in the reversion may be 234 See Tscheider v. Biddle, 4 Dill, compelled to join in the renewal. 58, Fed. Cas. No. 14,210: Monihon Bratt v. Woolstoon, 74 Md. 609, 7 V. Wakelin, 6 Ariz. 225, 56 Pac. 735; Atl. 563. Worthington v. Lee, 61 Md. 530; 235 See ante, note 4. Ryder v. Robinson, 109 Mass. 67; 236 Tscheider v. Biddle, 4 Dill. 58, Arnot V. Alexander, 44 Mo. 25, 100 Fed. Cas. No. 14,210; Graham v. Am. Dee. 252; Johnson v. Conger, James, 30 N. Y. Super. Ct. (7 Rob.) 14 Abb. Pr. (N. Y.) 195; New York 468. Life Ins. Co. v. St. George's Church, 237, 238 See ante, at notes 112-121. 12 Abb. N. C. (N. Y.) 50; Kollock v. L. and Ten. 98. 1554 STIPULATIONS FOR RENEWAL OR EXTENSION. § 233 renewal, owing to accident or excusable negligence, the standard for determining such negligejice differing, apparently, in differ- ent jurisdictions. But equity will refuse specific performance if the delay in demanding a renewal is not of an excusable charac- ter, 239 or, usually at least, if the right to renew is contingent on the performance of covenants by the lessee, and he is guilty of a breach of such covenants.-'^*^ And it has been regarded as ground for refusing specific performance of the covenant for re- newal that the tenant applying therefor is insolvent,-^^ the same doctrine applying in such case as in the case of an application for specific performance of any contract to make a lease.^^s And so equity has refused relief when the covenant was inequitable,2'i3 and when the lessee had been guilty of fraud in connection there- with.244 Specific performance has likewise been refused when the rights of the landlord in the land had been denied and con- tested by litigation on the part of the tenant, who had refused to pay rent for twelve years.^^^ But in the same jurisdiction it was decided that the fact that the leasehold had been conveyed as if a fee, with a recital that the rent reserved had "become lapsed and barred by limitations," was not a defense to an ap- plication for specific performance.^^*^ That the lessee took the lease in his own name as agent for another has been held to be no defense to a suit for specific performance of the covenant to re- new, he having been guilty of no fraud or misrepresentation in this regard, and the lessor having no personal objection to the principal, and knowing what sort of business was to be conducted on the premises.2'^'^ The question whether specific performance of a covenant to renew will be enforced when the rent is to be ascertained by ap- praisers or arbitrators has been before referred to.^^s 239 See ante, at note 113. 243 Redshaw v. Bedford Level, 1 Eden, 346. 240 See ante, § 225. 241 Price V. Assheton, 1 Younge & 44 Pendred v. Griffith, 1 Brown Pari. Cas. 314. C. Exch. 441; Crosbie v. Tooke, 1 ^^^^^^^^^^ v.'silljacks, 58 Md. 319, Mylne & K. 431. See Buckland v. ^^ ^m. Rep. 332. Hall, 8 Ves. Jr. 92. 240 Worthington v. Lee, 61 Md. 530. 242 See ante, § 67 b, at notes 142, 047 Daniels v. Str?iY/, 53 Fed. 327. 143, 24S See ante, at notes 176-189. . 934 TRUSTS ARISING FROM RENEWAL. 1555 § 234. Trusts arising from renewal. It is a well established rule in the courts of equity that, if a trustee or other person in a fiduciary position obtains the re- newal of a lease in his own name, he will, even though free from fraud, hold it in trust for the persons interested m the original term,^^^ this being an application of the general rule that if a person in a fiduciary or quasi fiduciary position gams some personal advantage by availing himself of such position the advantage so gained must be held by him for the benefit of his cestui que trust ?^^ The applicability of the rule is not affected, it has been held by the fact that the lease had not customarily been renewed, or that the new lease was for lives instead of for a term as was the former lease,"^^^ or was for a different term or at a different rent 253 or comprised land not included in the former lease ^ But'if the renewal includes other land as well as that included in the old lease, the trust will not attach to such other land It has been held that the rule is applicable even though the landlord had refused to make a renewal lease directly to the cestui que trust?^^ And so the fact that the cotrustees had re- fused to concur in a renewal for the cestui que trusts benefit has been regarded as immaterial.^^^ It has been held, however, in one jurisdiction, that no such relief would be given m favor of a corporation lessee as against one of its directors who had obtained a renewal after the landlord had positively refused to 249 See Keech v. Sandford, Cas. 252 Eyre v. Dolphin, 2 Ball & B. l.^■rv,T^ TTino- R1 • Dixon V. Dixon, 9 298. CrOiv 5S7 Min V. Hill. 3 H. L. - Mulvany . Dillon, 1 Ball . B Cas 828- In re Morgan, 18 Ch. Div. 409: James v. Dean, 11 Ves. Jr. 383. 93- Phyfe v. Wardwell. 5 Pai5?e (N. 15 Ves. Jr. 236. ^ ^ ^ Y.) 268, 28 Am. Dec. 430; Mitchell 254 Qiddings v. Giddmgs, 3 Russ. T Reed' 61 N Y. 123, 19 Am. Rep. 241. 252; Grnmley v. Webb, 44 Mo. 446, 255 Qiddings v. biddings 3 Russ. 100 Am. Dec. 304. 241 ; Acheson v. Fair, Dru. & War. 250 See Lewin, Trusts (10th Ed.) 512; O'Brien v. Egan, 5 L. R. Ir 633. 192- 2 White & Tudor's Leading 250 Keech v. Sandford, Cas. temp. Cases in Eqmty (7th Ed.) p. 694, King, 61; Ex parte James, 8 Ves. not": to Ke2ch V. Sandford. Jr. 337. 345; Featherstonhaugh r. 25iKittick V. Flexney, 4 Brown Fenv-ick, 17 Ves. Jr. ^9S. Ch. 161; Featherstonhaugh v. Fen- cr.T Biewett v. Millett. 7 Brown wick, 17 Ve=;. Jr. 298; Mulvany v. Pari. Cas. 367. Dillon, 1 Ball & B. 409. 1556 STIPULATIONS FOR RENEWAL OR EXTENSION. § 234 make ajiother lease to the corporation, the renewal lease ex- pressly prohibiting any assignment by the person to whom it was made. 258 And elsewhere, the fact that the landlord had refused to renew to the former lessees has been considered in determining whether one having a mere partial interest in the old lease acted in good faith in taking a renewal to himself. -^^ The rule has been applied as against an executor,26o an ad- ministrator,26i and even an executor de son tort,-^^ and he will be required to hold the leasehold in trust for the estate of the decedent. So a guardian, taking a renewal in his own name of a lease belonging to his ward, will hold the renewal lease in trust for the latter.263 And a person acting as agent for one interested in a lease cannot procure a renewal for his own benefit.^^^ In the case of a lease to the members of a partnership firm, one member of the firm cannot ordinarily ^65 obtain a renewal for himself, but will hold the renewal lease in trust for the others,^^^ and the fact that the lessor has refused to renew to the members of the firm has been regarded as immaterial,^^^ as has the fact that the renewal lease to the one partner provides expressly that it shall not be assigned.^^s The partner taking the renewal can- not exclude the operation of the rule by notifying the other per- sons interested of his intention to do so,^*^^ though occasionally 25S Crittenden & Cowles Co. v. 26o Alder v. Fouracre, 3 Swanst. Cowles, 66 App. Div. 95, 72 N. Y. 489; Featherstonhan.gh v. Fenwick, Supp. 701. See post, at note 279. 17 Ves. Jr. 298; Clegg v. Fishwick, 259 In re Biss [1903] 2 Ch. 40. 1 Macn. & G. 294; Sneed v. Deal, 53 260 Holt V. Holt, 1 Ch. Cas. 190; Ark. 152, 13 S. W. 703, 7 L. R. A. Killick V. Flexney, 4 Brown Ch. 160; 551; Mitchell v. Reed, 61 N. Y. 123, Lewin, Trusts (10th Ed.) p. 192. 19 Am. Rep. 252; Struthers v. 261 Kelly V. Kelly, 8 Ir. Eq. 403. Pearce, 51 N. Y. 357; Cushing v. 2G2 Mulvany v. Dillon, 1 Ball & B. Danforth, 76 Me. 114; Johnson's Ap- 409; Griffin v. Griffin, 1 Schoales & peal, 115 Pa. 129, 8 Atl. 36, 2 Am. L. 352. St. Rep. 539. 263 Mulhallen v. Marum, 3 Dm. & se? Featherstonhaugh v. Fenwick, War. 317; Milner v. Harewood, 18 17 Ves. Jr. 298; Lacy v. Hall. 37 Pa. Ves. Jr. 259, 274. 360, 78 Am. Dec. 429. 264 Griffin v. Griffin, 1 Schoales & ^Rs Mitchell v. Reed, 61 N. Y. 123, L. 352; Davis v. Hamlin, 108 111. 39, 19 Am. Rep. 252. 48 Am. Rep. 541. 203 Clegg v. Edmonson, 8 De Gex, 265 See Clegg v. Edmondson, 8 M. & G. 787; Fitzgibbon v. Scanlan, De Gex, M. & G. 787; In re Biss 1 Dow, 269. [1903] 2 Ch. 40, 62. e 934 TRUSTS ARISING FROM RENEWAL. 1557 emphasis is placed on the fact that the renewal is obtained se- cretly 2-0 The same rule has been applied as against a swvmng partner taking a renewal, and he will hold this for the_ benefit ot the partnership estate.^^i it has been said, however, m this re- gard that the rule "has been to some extent departed from where the trade is one of a speculative character, and requiring great outlay with uncertain returns. There, if the surviving partner renews the lease in his own sole name, and carries on the business with his own capital and in his own name, the court will not m general assist the representative of the deceased partner unlesa he comes forward promptly, and is ready to contribute a due proportion of money for the purpose of the business. It would be unjust to permit the executor of the deceased partner to lie by and remain passive while the survivor is incurring all the risk of loss, and only to claim to participate after the affairs have turned out to be prosperous. "^^^ The rule has been held to apply against a partner in a tirm which has been dissolved other- wise than by the death of a member.2T3 The application of the rule is not excluded by the fact that the renewal lease obtained by the partner is not to commence until after the termination of the partnership by the terms of the firm articles.274 One who has but a partial interest, measured by duration, as, for instance, one to whom the leasehold has been bequeathed or as- signed for life with remainder over, cannot, it has been held, procure a renewal exclusively for his own benefit, but will be re- garded as a trustee for those entitled in remainder.275 If a mortgagee of the leasehold obtains a renewal of the lease, he will, it has been decided, hold it for the mortgagor's benefit,^'^" 270 See Mitchell V. Reed, 61 N. Y. 96 N. Y. 651; Johnson's Appeal, 115 123 19 Am. Rep. 252; Chittenden v. Pa. 129, 8 Atl. 36, 2 Am. St. Rep. 539; Witbeck, 50 Mich. 401, 15 N. W. 526; Clegg v. Edmondson, 8 De Gex, M. Featherstonhaiigh v. Fenwick, 17 & G. 787. Ves. Jr. 298, 311. 271 Mitchell v. Reed, 61 N. Y. 123, 271 Clegg V. Fishwick, 1 Macn. & 19 Am. Rep. 252. Q 294 * "^ James v. Dean, 11 Ves. Jr. 383, "272 Clements v. Hall, 2 De Gex & 15 Ves. Jr. 236; Rawe v. Chichester, J 173 186 per Cran worth. L. C. Amb. 715, 1 Brown Ch. 198 n; Lewin. See Chittenden v. Witbeck, 50 Mich. Trusts (11th Ed.) 197; 2 White & 401, 15 N. W. 526. Tudor's Leadins: Cas. in Eq. p. 705, 273 Sneiss V. Rosswogg, 48 N. Y. notes to Keerh v. Sandford. Super. Ct. (16 Jones & S.) 135, afd. 276 Rushworth's Case. Freem. Ch. 1558 STIPULATIONS FOR RENEWAL OR EXTENSION. § 234 though a different view has been taken when the renewal was procured by a mortgagee who was not in possession, without any fraud on his part, and after notice to the mortgagor, the re- newal not being regarded, under such circumstances, as pro- cured by him by reason of his position as mortgagee. ^'^''^ If the mortgagor of a leasehold interest acquires a renewal of the lease, the new lease will, it has been held, be subject to the mortgage. ^■'■s A director of a corporation, procuring for himself the renewal of a lease held by the corporation, is, it has been held, subject to the rule above referred to.^'^^ It has been recently decided in England, after a full considera- tion of the matter, that the mere circumstance that a person is partially interested in an old lease does not preclude him from obtaining a new lease of the same premises for his own benefit, the landlord having refused to renew to the old lessees.^so A sublessee does not stand in a fiduciary relation as regards the sublessor, and he may obtain a renewal in his own name from the principal lessor, without reference to any claims upon the part of the sublessor.^si The lessee is, it has been held, under no fiduciary relation as regards his assignee, so as to be compelled to hold a renewal lease procured by him in trust for the latter, merely because he rep- resented to him, while negotiating for the sale and assignment of the leasehold, that it was customary for the landlord to renew 13; Rakestraw v. Brewer, 2 P. Wms. See Jacksonville Cigar Co. v. Dozier, 510; Fosbrooke v. Balguy, 1 Mylne 53 Fla. 1059, 43 So. 523. & K. 226; Holridge v. Gillespie, 2 28o in re Biss [1903] 2 Ch. 40, Johns. Ch. (N. Y.) 30; Slee v. Man- distinguishing Palmer v. Young, 1 hattan Co., 1 Paige (N. Y.) 48. Vera. 276, Ex parte Grace, 1 Bos. 277Nesbitt V. Tredennick, 1 Ball & P. 376. & B. 29. 281 Maunsell v. O'Brien, 1 Jones, 278 Seabourne v. Powel, 2 Vera. 11; 176. See John Polhemus Print. Co. Leigh v. Burnett, 29 Ch. Div. 231; v. Wynkoop, 30 App. Div. 524, 52 N. Wunderlich v. Reis, 31 Hun (N. Y.) Y. Supp. 420. A covenant by a sub- 1; Hausauer v. Dahlman, 18 App. lessee with his lessor not to nego- Dlv. 475, 45 N. Y. Supp. 1088; Id., tiate with any other person for a 163 N. Y. 567, 57 N. E. 1111. renewal before a certain time was 279 Robinson v. Jewett, 116 N. T. held not to be broken by a promise 40, 22 N. E. 224; McCourt v. Singers- to negotiate at a future time. Smith Bigger (C. C. A.) 145 Fed. 103. v. Coe, 55 N. Y. 678. § 234 TRUSTS ARISING FROM RENEWAL. I559 such leases,282 though a differe.nt view was taken when the as- signor expressly contracted with his assignee that he would give him all the advantages of being the tenant of the lessor as re- gards a renewal.283 A purchaser of the leasehold interest owes no obligation in this respect to his vendor, and cannot be com- pelled to transfer a renewal lease procured by him to the lattcH as security for the price to be paid by him for the assignment.^^^ But where a lessee contracted to sell his interest in the premises for the purpose of enabling the vendee to obtain a renewal, with- out prejudice to the rights of an existing sublessee, and the vendee in consequence obtained a new lease in his own name, such new lease, it was held, was to be considered as merely a re- newal of the old lease, and the original lessee was entitled to specific performance of the vendee's contract to pay the pur- chase money, and to indemnity against the sublessee's claim for damages for eviction by the vendee.^s^ 282 McDonald v. Fiss, 54 App. Div. sign any renewal, the lessee could 489, 67 N. Y. Supp. 34. not avoid the effect of such agree- 283 Bennett v. Vansyckel, 11 N. Y. ment by having the renewal taken Super. Ct. (4 Duer) 462. in the name of his wife. In H. Koehler & Co. v. Kennedy, 284Hibbard v. Ramsdell, 118 N. 65 App. Div. 611, 72 N. Y. Supp. 595, Y. 38, 22 N. E. 1123, 16 Am. St. Rep. it was decided that where the les- 740. see assigned the leasehold as secur- 285 Phyfe v. Wardell, 5 Paige (N. ity, with an agreement also to as- Y.) 268, 28 Am, Dec. 480. CHAPTER XXIII. FIXTURES. § 235. General considerations. 236. Physical attachment. 237. Character of article. 238. Intention of the annexor. 239. Specific articles as fixtures. 240. Removable fixtures. a. Trade fixtures. b. Domestic and ornamental fixtures. c. Agricultural fixtures. 241. Removable fixtures as realty or personalty. 242. Loss of tenant's rights of removal. a. End of term or relinquishment of possession. b. Tenancy of uncertain duration. c. Surrender or merger of leasehold. d. Forfeiture of leasehold. e. Eviction under title paramount. f. Delay in removal caused or acquiesced in by landlord. g. Acceptance of new lease by tenant. 243. Stipulations granting rights of removal. a. General considerations. b. Articles annexed with landlord's assent. c. Effect as rendering articles personalty. d. Validity in favor of and as against third persons. e. Loss of benefit of stipulation — Time for removal. 244. Stipulations restricting rights of removal. a. General considerations. b. Stipulations as to "fixtures." c. Stipulations as to "improvements." d. "Erections" and "additions." e. "Alterations." f. Stipulated improvements by tenant. g. Title to articles during term. 245. Custom affecting rights of removal. § 235 GENERAL CONSIDERATIONS. 1561 § 246. Rights of removal as against person other than lessor. a. Purchaser subsequent to annexation. b. Person claiming under mortgage subsequent to annexation. c. Poxson claiming under mortgage prior to annexation. 247. Rights of removal by person other than lessee. 248. Remedies. § 235. General considerations. The questions to be considered in connection with the law of fixtures, as between landlord and tenant, involve almost ex- clusively the right of the tenant to remove from the premises articles or erections placed by him thereon. The first question which arises in any particular case is whether the article or erection in question is of such a character, or has l)een annexed to the land in such manner, or under such circum- stances, that it is to be regarded as part of the land. If there is nothing to show that the article or erection has become part of the land, it remains a chattel, which the tenant obviously has the right to remove. If the article or erection has become part of the land, the question then arises whether the tenant may neverthe- less remove it as being Avithin an exceptional right of removal given to a tenant for a limited period. There are, it is true, deci- sions by most respectable courts which tend to blend these ques- tions, which, in other words, regard the assertion of a right of re- moval in the tenant as necessarily equivalent to 8.n assertion that the article retains its chattel character,^ but we will, for the pres- ent, assume that the two questions are distinct, and will discuss the subject accordingly. ' In determining the first question, whether the article or erec- tion has become a part of the realty, that is, whether it is a "fix- ture," using the term as descriptive of an article which, because affixed to the land or brought into physical connection therewith, has lost its original chattel character, for some purposes at least,- 1 See post, § 241. tures, 1 et seq.; Bronson, Fixtures, 2 Such is the sense in which the c. 1; 13 Am. & Eng. Enc. Law (2d word will be used in the present Ed.) 597. A "fixture" has also been chapter. It has also been frequently defined (Brown, Fixtures, §§ 1-3) used as signifying an article which, as a thing "associated with or more though annexed to the land, is re- or less incidental to the occupation movable by the person who made of lands and houses, or either there- the annexaiion. See Ewell, Fix- of, and with regard to which the 1562 FIXTURES. § 236 the considerations which govern as between landlord and tenant are approximately the same, it is conceived, as when no rela- tion of tenancy exists between the owner of the la ad and the person who made the annexation. Consequently, it is proper to state briefly these general considerations, with reference to which the courts ordinarily undertake to determine the ques- tion whether an erection on the land, or article affixed to, or placed on, the land, is to be regarded as "a part of the realty," as it is frequently expressed.^ § 236. Physical attachment. Not infrequently the courts have asserted the view that a thing cannot be a fixture if merely placed on the la.nd, and not actually attached to the land, or to some structure which is itself so at- tached to the land as, in a legal sense, to form a part thereof.^ •In other cases, however, an article of a heavy and permanent character has been regarded as constituting a fixture, though merely laid upon the land and kept in place by the force of gravity.^ question most frequently arising is Teaff v. Hewitt, 1 Ohio St. 511, 59 that of their removability by the per- Am. Dec. 634; Hill v. Wentworth, son claiming to remove them," thus 28 Vt. 429. See authorities cited apparently making the question in Ewell, Fixtures (2d Ed.) 18; 13 whether a dispute is likely to arise Am. & Eng. Enc. Law (2d Ed.) 600. as to the right of removal the test e Stockwell v. Campbell, 39 Conn, of a -fixture. 362, 12 Am. Rep. 393; Blethen v. 3 The subject of fixtures has re- Towle, 40 Me. 310; Snedeker v. War- cently been treated at length in ring, 12 N. Y. (2 Kern.) 170; Dosch- Bronson, Fixtures (St. Paul, 1904), er v. Blackiston, 7 Or. 143; Holland and Ewell, Fixtures (2d Ed. Chica- v. Hodgson, L. R. 7 C. P. 334; Monti go, 1905). An article on the sub- v. Barnes [1901] 1 K. B. 205. So ject by the present writer is to be buildings merely resting on a wood- found in 13 Am. & Eng. Enc. Law en foundation have been regarded (2d Ed.) 593. as fixtures (Landon v. Piatt, 34 4 Horn V. Baker, 9 East, 215; Conn. 517; Ogden v. Stock, 34 HI. Wansbrough v. Maton, 4 Adol. & E. 522, 85 Am. Dec. 332; Madigan v. Mc- 884; Walker v. Sherman, 20 Wend. Carthy, 108 Mass. 376, 11 Am. Rep. (N. Y.) 636; Hoyle v. Plattsburgh 371), as have fences resting on the & M. R. Co., 54 N. Y. 314, 13 Am. surface of the ground (Giirklen v. Rep. 595; Brown v. Lillie, 6 Nev. Bennett, 43 N. H. 306; Wentz v. S44; Williamson v. New Jersey Flncber, 34 N. C. (12 Ired. Law) Southern R. Co., 29 N. J. Eq. 311; 297, 55 Am. Dec. 416; Kimball v. § 236 PHYSICAL ATTACHMENT. 1563 Occasionally a thing, not at the time actually annexed to or in place on the land, has been regarded as part of the land as con- stituting an essential part of or accessory to a thing which is aaanexed. A part of a machine, temporarily removed, either for the purpose of repairs or safe keeping, or in order to facilitate a particular use of the machine, has been considered to come with- in this principle,^ though it may perhaps, in most cases, be aa well regarded as having become part of the realty by reason of actual annexation, and as not having ceased to be so because tem- porarily severed^ Keys, doors, and windows, have been regarded as part of the realty on the same theory, ^'i'^ though they also might ordinarily be regarded as actually annexed. In some cases the courts have considered the mode of physical attachment as decisive that the article attached is a part of the land,ii but the tendency is to consider this as in itself but a slight indication that the article is a fixture, provided it is sus- ceptible of removal without injury to the land, or to the struc- ture constituting a part of the land to which it is attached.^^ Adams, 52 Wis. 554, 9 N. W. 170, 38 7 See 13 Am. & Eng. Enc. Law, Am. Rep. 756). See 13 Am. & Eng. 615; Ewell, Fixtures, 62; Bronson, Enc. Law, 603. In Pennsylvania the Fixtures, §§ 18 c (5), 24. requirement of actual physical at- s-io Liford's Case, 11 Coke, 50 b; tachment has been positively repud- State v. Elliot, 11 N. H. 540; Hill iated. Voorhis v. Freeman, 2 Watts v. Wentworth, 28 Vt. 436. & S. (Pa.) 116, 37 Am. Dec. 490; n Wiltshear v. Cottrell, 1 El. & Christian v. Dripps, 28 Pa. 271, 278; Bl. 674; Bliss v. Whitney, 91 Mass. Seeger v. Pettit, 77 Pa. 437, 18 Am. (9 Allen) 114, 85 Am. Dec. 745; Rep. 452; Wick v. Bredin, 189 Pa. Degraffenreid v. Scruggs, 23 Tenn. 83, 42 Atl. 17; Hill v. Sewald, 53 Pa. (4 Humph.) 451, 40 Am. Dec. 658; 271, 91 Am. Dec. 209. Clark v. Hill, 117 N. C. 11, 23 S. 6 Ex parte Ashbnry. 4 Ch. App. E. 91, 53 Am. St. Rep. 514. See 630; ShefBeld & South Yorkshire Amos & Ferard, Fixtures (3d Ed.) Permanent Bldg. Soc. v. Harrison, 3 et seq. 15 Q. B. Div. 258; Bain v. Brand, 1 12 State Sav. Bank v. Kercheval, App. Cas. 762; Fisher v. Dixon, 12 65 Mo. 687, 27 Am. Rep. 310; Mc- Clark & F. 312; Dudley v. Hurst, 67 Rea v. Central Nat. Bank, 66 N. Y. Md. 44, 8 Atl. 901, 1 Am. St. Rep. 495; Farrar v. Stackpole, 6 Me. (6 368; Pierce v. George, 108 Mass. 78, Greenl.) 154, 19 Am. Dec. 201; Voor- 11 Am. Rep. 310; Wadleigh v. Jan- his v. Freeman, 2 Watts & S. (Pa.) vrin, 41 N. H. 503, 77 Am. Dec. 780; 116, 37 Am. Dec. 490; Winslow v. Hopewell Mills v. Taunton Sav. Merchants' Ins. Co., 45 Mass. (4 Bank, 150 Mass. 519, 23 N. E. 327, 6 Mete.) 314, 38 Am. Dec. 368; Man- L. R. A. 249, 15 Am. St. Rep. 235. waring v. Jenison, 61 Mich. 117, 27 1564 FIXTURES. § 238 The faet, however, that a chattel is so attached to a structure that its removal would leave an unfinished gap in the structure has been regarded as strong evidence that the chattel is a part of the land.^^ § 237. Character of article. A consideration on which the cases usually lay great stress, as determining the character of the article as a fixture vel non, is its character, as related to the uses to which the land has been appropriated, it being regarded as a fixture only in case there is a correspondence between its character, and consequently its prospective use, and the use to which the land is devoted. This idea of correspondence between the use of the article and that of the land, as showing the annexor's intention, is presented in the cases under various names, as when it is stated that the article annexed must be "adapted" or "appropriate" to the use to which the land is appropriated. The same idea is apparently involved in the frequent statement that the object and purpose of the annexation, as being for the "improvement" or "better enjoyment" of the land, is the important consideration, this re- ferring to the purpose as indicated by the character of the article and the use made of the land.^* § 238. Intention of the annexor. In determining the question whether an' article is a fixture, the modern decisions usually lay great emphasis on the question of the "intention" with which the annexation was made, and indeed N. W. 899; Despatch Line v. Bellamy 260, note b; Holland v. Hodgson, L. Mfg. Co., 12 N. H. 205, 37 Am. Dec. R. 7 C. P. S2S; State Sav. Bank v. 203; Thorr.as v. Davis, 76 Mo. 72, 43 Kerch eval, 65 Mo. 686, 27 Am. Rep. Am' Rep 756. See 13 Am. & Eng. 310; Green v. Phillips, 26 Grat. Enc. Law (2d Ed.) 607. (Va.) 752, 21 Am. Rep. 323; Fifield 13 Ward v. Kilpatrick, 85 N. Y. v. Farmers' Nat. Bank, 148 111. 163, 413, 39 Am. Rep. 674; Teaff v. Hew- 35 N. E. 802, 39 Am. St. Rep. 166; itt,! Ohio St. 534, 59 Am. Dec. 634; Atchison, T. & S. F. R. Co. v. Mor- Gttumwa Woolen Mill Co. v. Hawley, gan, 42 Kan. 23, 21 Pac. 809, 4 L. 44 Iowa, 57, 24 Am. Rep. 719; Home R. A. 284, 16 Am. St. Rep. 471; Teaff V. Smith, 105 N. C. 322, 11 S. E. 373, v. Hewitt, 1 Ohio St. 511, 59 Am. 18 ^m St. Rep. 903. E>ec. f)34; Rogers v. Prattville Mfg. 1* SeeVawton v. Salmon, 1 H. Bl. Co. No. 1, 81 Ala. 483, 1 So. 643, 60 § 238 INTENTION OF ANNEXOli. 1565 quite frequently make this the sole criterion, referring to the mode of annexation and the character of the article merely aa evidence upon this question of intention.i^ Unfortunately, the courts are not entirely clear, nor are they consistent, in their statements as to the nature of this intention, and the facts from Avhich it is to be inferred. In a leading case,^^ which is fre- quently quoted and referred to in connection with the law of fixtures, it is said that the intention is to be inferred "from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexa- tion, and the purpose or use for which the annexation has been made."^''' And so it is said in other cases that the secret inten- tion of the person making the annexation is immaterial, the in- tention which controls being that inferable from his acts.^^ A.m. Rep. 171; Potter v. Cromwell, field Tel. & T. Co. v. Cyr, 95 Me. 2S7, 40 N. Y. 287, 100 Am. Dec. 485; Still- 49 Atl. 1047; Fifield v. Farmers' Nat. man v. Flenniken, 58 Iowa, 450, 10 Bank, 148 111. 163, 35 N. E. 802, 39 N. W. 842, 43 Am. Rep. 120; McRea Am. St. Rep. 1G6; Feder v. Van V. Central Nat. Bank of Troy, 66 N. Winkle, 53 N. J. Eq. 370, 33 Atl. 399, y. 489; 13 Am. & Eng. Enc. Law, 609. 51 Am. St. Rep. 628; Baringer v. 15 See Holland v. Hodgson, L. R. Evenson, 127 V/is. 36, 106 N. W. 7 C. P. 328; Leigh v. Taylor [1902] 801. App. Cas. 157, afg. In re DeFalbs "^ Tpaff v. F-^iwitt, 1 Ohio St. 511, [1901] 1 Ch. 523; State Sav. Bank 59 Am. Dec. 634, per Bartley, C. J. V. Kercheval, 65 Mo. 683, 27 Am. it To the same effect, see Capen v. Rep. 310; Ozark v. Adams, 73 Ark. Peckham, 35 Conn. 88; Thomson v. 227, 83 S. W. 920; Snedeker v. War- Smith, 111 Iowa, 718, 83 N. W. 789, ring, 12 N. Y. (2 Kern.) 170; Teaff 50 L. R. A. 780, 82 Am. St. Rep. V. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 541; Readfield Tel. & T. Co. v. Cyr, 634; Hopewell Mills v. Tannton Sav. 95 Me. 287, 49 Atl. 1047; Schaper v. Bank, 150 Mass. 519, 23 N. E. 327, Bibb, 71 Md. 145, 17 Atl. 935; Thom- 6 L. R. A. 249, 15 Am. St. Rep. 235; as v. Davis, 76 Mo. 72, 43 Am. Rep. Potter V. Cromwell, 40 N. Y. 293, 100 756; Ogden v. Stock, 34 111. 522, 85 Am. Dec. 485; Ottumwa Woolen Mill Am. Dec. 332. Co. V. Hawley, 44 Iowa, 57, 24 Am. is Hopewell Mills v. Taunton Sav. Rep. 719; Eaves v. Estes, 10 Kan. Bank, 150 Mass. 519, 23 N. E. 327, 314, 15 Am. Rep. 345; Hntchins v. 6 L. R. A. 249, 15 Am. St. Rep. 235; Masterson, 46 Tex. 551, 26 Am. Rep. Crum v. Hill, 40 Iowa, 506; Snede- 286; Hill v. Sewald, 53 Pa. 271, 91 ker v. Warring, 12 N. Y. (2 Kern.) Am. Dec. 209: Wick v. Bredin, 189 170; Cosgrove v. Troescher, 62 App. Pa. 83. 42 Atl. 17: Langston v. State, Div. 123. 70 N. Y. Supp. 764; Cat- 96 Ala. 44, 11 So. 334; Lavenson v. asauqua Bank v. North, 160 Pa. 303, Stand^Td Soap Co.. SO Cal. 24!^. 21 28 Atl. 694; Alberson v. Elk Creek Pac. 184, 13 Am. St. Rep. 147; Read- 1566 FIXTURES. 238 Most vof the cases Avhich thus lay stress upon the intention of the person making the annexation, as determining whether the article annexed becomes part of the land, are cases in which such per- son was, at the time of the annexation, the owner of the land, as well as of the article annexed.^^ In such a case, the absence of any conflicting interests at the time of the annexation renders his intention an appropriate consideration in this connection, when the question subsequently arises, for instance, between his heir and personal representatives, or between one to whom he conveys the land, absolutely or by way of mortgage, and one claiming the article as a chattel. But it seems that if, at the time of the annexation, the person annexing has no right in the land, his intention, however clearly expressed by word or act, that the article shall not become a part of the land, should have no effect in divesting the rightful owner of the land of the right to the chattel which he otherwise would have.^o And the cases Min. Co., 39 Or. 552, 65 Pac. 978; Washington Nat. Bank v. Smith, 15 Wash. 169, 45 Pac. 736. 18 See, e. g., Roseville Alta Min. Co. V. Iowa Gulch Min. Co., 15 Colo. 29, 24 Pac. 920, 22 Am. St. Rep. 373; Seedhouse v. Broward, 34 Fla. 509, 16 So. 425; Thomson v. Smith, 111 Iowa, 718, 83 N. W. 789, 50 L. R. A. 780, 82 Am. St. Rep. 541; Potter v. Cromwell, 40 N. Y. 287, 100 Am. Dec. 485; McRea v. Central Nat. Bank, 66 N. Y. 489; Erdman v. Moore, 58 N. J. Law. 445, 33 Atl. 958; Knicker- bocker Trust Co. V. Penn Cordage Co., 66 N. J. Eq. 305, 58 Atl. 409; McFarl?,ne v. Foley, 27 Ind. App. 484, 60 N. E. 357; Kendall v. Hatha- way, 67 Vt. 122, 30 Atl. 859. 20 That the intention of the an- nexor is in such case immaterial, see Tread-^'ay v. Sharon, 7 Nev. 37; Miles V. M'^Naughton, 111 Mich. 350, 69 N. W. 4'^l: Henderson v. Ownby, 56 Tex. 647, 42 Am. Rep. 691 (sem- ble). 'In Huohschmann y. McHenry, 29 Wis. 65.'^. H i=! said, per Dixon, C. J.; "It would be strange if it were to be held that the mere trespasser entering without any title and erect- ing buildings or other improvements, having in all other respects the character of fixtures, could show that they were not by showing that his intention was at some future day to remove them. This would be a new way of defeating the rights of the owner of the soil to fixtures and improvements thus annexed, and which, by the common law as it now exists and always has, confessedly belong to him." But in Curtis v. Leasia, 78 Mich. 480, 44 N. W. 500, it was held that such intention was relevant to show that a fence mis- takenly placed on adjoining soil did r\ot become the property of the ad- joinin,g owner. And in Wake v. Hall. 8 App. Cas. 204, where it was held that one who had a right by cn<=tom to mine on another's land could remove mining machinery- placed by him thereon. Lord Black- burn refers to his intention as an important factor in the case. § 238 INTENTION OF ANNEXaR. 1567 seem m effect to support this view, though not in terms so stat- ing, it being held that if a trespasser makes erections upon an- other's land, the erection becomes a part thereof, 21 although it may be assumed that in such case there is no intention to make the article a part of the other person's land. And so where the person making the annexation has an estate in the land of limited duration only, it would seem that, if the articles are such, and are so annexed, that they would ordinarily become a part of the land, the fact that the tenant of the limited estate, whether one for life or years, proclaims, at the time of the annexation, that he intends to retain the right to the articles annexed, should not affect the rights of the owner of the remainder or reversion, and there are a few cases in which this view is asserted.^^ There are, however, it must be conceded, a greater number of cases in which the right of the tenant of a limited estate to remove articles annexed by him is based in terms on the theory of an intention on his part not to make them a part of the realty.-^ It seems questionable, however, whether these cases can be regarded as 21 See cases cited in Ewell, Fix- held that the fact that one in pof5- tures, c. 2; 13 Am. & Eng. Enc. Law, session of land under a contract of 620. purchase intended, when making im- 22 West Coast Lumber Co. v. Ap- provements, to remove them, did not field, 86 Cal. 335, 24 Pac. 993; Wright affect the vendor's right thereto on V. Du Bignon, 114 Ga. 765, 40 S. E. the purchaser's default. And to 747, 57 L. R. A. 669; McLain Inv. Co. this effect, see Crum v. Hill, 40 Iowa, v. Cunningham, 113 Mo. App. 519, 87 506. S. W. 605. The Georgia case cited =3 Linahan v. Barr, 41 Conn. 471; quotes from Ewell, Fixtures, 58, Hewitt v. General Elec. Co., 164 111. that "in order to give effect to the 420, 45 N. E. 725; Baker v. McClurg, intention of a party not to make an 198 111. 28, 64 N. E. 701, 92 Am. St. erection a permanent accession to Rep. 261; Id., 96 111. App. 165, 59 the realty, the person making the L R. A. 131; Conde v. Lee, 55 App. improvement must have the right to Div. 401, 67 N Y. Supp. 157; Roth v. determine whether or not the erec- Collins, 109 Iowa, 501, 98 N. W. 543; tion shall become a part of the McMath v. Le\T, 74 Miss. 450, 21 So. realty; and if, as between himself 9, 523; Hayford v. Wentworth. 97 and the owner of the soil, he has no Me. 347, 54 At]. 940; Holmes v. Stan- right to erect the same as property dard Pub. Co. (N. J. Eq.) 55 Atl. separate and distinct from the free- 1107; Seeger v Pettit, 77 Pa. 437, 18 hold, an intention so to do, no mat- Am.. Rep. 452; Wing v. Gray, 36 Vt. ter how clearly manifested, is of 261; Menger v. Ward (Tex. Civ. no avail." This statement is i+s^^lf App.) 28 S. W. 821: Wall v. Hinds, taken from Ogden v. Stock, 34 III. 70 Mass. (4 Gray) 256, 271, 64 Am. 522, 85 Am. Dec. 332, where it was Dec. 64; Moray v. Hoyt, 62 Conn. 1568 FIXTURES. § 239 authorizing the view that the mere mental intention of the ten- ant, when making the annexation, subsequently to remove arti- cles annexed, even though expressly declared to the landlord at the time, will preserve the personal character of such articles^ or render them removable by him, unless their nature and mode of annexation are themselves such as to preserve their physical character, or unless they come within one of the excepted classes of fixtures which, as is hereafter stated, the tenant has the right to remove. The question of the intention of the person making the annexa- tion is to be distinguished from that of the intention, so called, of both the interested parties, as evidenced by agreement be^' twecn them. Any such agreement is, as we shall see presently, conclusive in its effects.^^ The courts not infrequent!}^ use the word "intention" in this sense, sometimes apparently without sufficiently recognizing the distinction referred to.^^ § 239. Specific articles as fixtures. The principles above summarized are, it seems, as before stated, to be applied in determining whether an article has become part of the land, when the question arises between landlord and ten- ant, as in other cases, and the occasional assertion that, as be- tAveen landlord and tenant, the claim of the latter that particular articles are personal chattels is to be specially favored may prob- ably be considered as merely equivalent to a statement that, as explained in the next section, the tenant may, as against his land' 542, 557, 26 Atl. 127, 19 L. R. A. 611; 28, 64 N. E. 701, 59 L. R. A. 131, 92 Ryder v. Faxon, 171 Mass. 206, 50 Am. St. Rep. 261; Munroe v. Arm- N. E. 631, 68 Am. St. Rep. 417. strong, 179 Mass. 165, 60 N. E. 475; 24 See post, §§ 243, 244. Lansing Iron & Engine "Works t. 25 See e. g., Wood v. Holly Mfg. Wilbur, 111 Mich. 413, 69 N. W. G67; Co., 100 Ala. 326, 13 So. 948, 21 L. Schellenberg v. Detroit Heating & R. A. 787, 46 Am. St. Rep. 56; West Lighting Co., 130 Mich. 439, 90 N. Coast Lumber Co. v. Apfield, 86 Cal. W. 47, 57 L. R. A. 632, 97 Am. St. 335, 24 Pac. 993; Linahan v. Barr, 41 Rep. 489; Potter v. Cromwell, 40 N. Conn. 471; Horn v. Indianapolis Y. 287, 100 Am. Dec. 485: Brownell Nat. Bank, 125 Ind. 381, 25 N. E. 558, v. Fuller, 60 Neb. 558. 83 N. W. 669: 9 L. R. A. 876, 21 Am. St. Rep. 231; Adams v. Tully, 164 Ind. 292, 73 N. Eaves v. Estes, 10 Kan. 314, 15 Am. E. 595. Rep. 345; Baker v. McClurg, 198 111. . 239 SPECIFIC ARTICLES. 1569 lord, 'remove certain classes of articles which would not be re- movable as between persons standing in another relation. A chattel placed by the tenant on the la^d, if not so annexed, or if not of such character, as to become part of the land, is re- movable by the tenant.^e Various decisions as to whether a particular article annexed by a tenant to the land was to be considered as still retaining its personal character, or whether it had become a part of the realty, are referred to in the note below.^' MWansbrou^h v. Maton, 4 Adol. personal property, see O'Donnell v. ^ V S84- Morey v. Hoyt, 62 Conn. Hitchcock, 118 Mass. 401; Nigro v. 542 26 Atl m' 19 L R. A. 611; Hatch. 2 Ariz. 144, 11 Pac. 177; Rob- Carlin v nitter, 68 Md. 478, 13 Atl. inson v. Wright, 9 D. C. (2 Mac 370 16 Atl 301, 6 Am. St. Rep. 467; Arthur) 54; Lanphere v. Lowe, 3 Holbrook V. Chamberlin, 116 Mass. Neb. 131; Carlin v. Ritter, 68 Md. 155 17 Am. Rep. 146; Kimball v. 478, 13 Atl. 370, 16 Atl. 301, 6 Am Grand Lodge 131 Mass. 59; Bartlett St. Rep. 467; Beckwith v. Boyce, 9 V Haviland. 92 Mich. 552, 52 N. W. Mo. 560. _ 1008- Shapira v. Barney. 30 Minn. Windows placed m a dwelling r^q 14 N W 270- Seeger V. Pettit, 77 house have been stated to be fixtures, pa 437 '18 Am. Rep. 452; Crerar v. State v. Elliot. 11 N. H. 540^ But Daniels', 109 111. App. 654; Fulling- see State v. Whitener, 93 N. C. 590. ton V Goodwin. 57 Vt. 641. Bar in saloon and large oyster 2TA building has been quite fre- counter annexed by tenant have been guently decided, in the particular held to be fixtures. Guthne v. case to be a part of the realty, in Jones, 108 Mass. 191. 11 Am. Rep. view of the mode of annexation or 335. So a bar, bar fixtures and Character of the building and the bowling alley. O'Brien v. Kusterer. purpose of its construction. Talbot 27 Mich. 289. And platform scales. V Whipple, 96 Mass. (14 Allen) 177; set into the earth in front of a buUd- Madigan v McCarthy, 108 Mass. ing and connected with a room m it. 376 11 Am Rep 371; Precht v. were held a fixture. Bliss v. Whit- Howard 187 N Y. 136, 79 N. E. 847; ney, 91 Mass. (9 Allen) 114. 85 Am. Linahan v Barr 41 Conn. 471; Dec. 745. A partition placed by the Holmes v Standard Pub. Co. (N. J. tenant in a room, running half way Ea ) 55 Atl 1107; Schlemmer v. to the ceiling and nailed to blocks N^rth 32 Mo 206; Marks v. Ryan, let through the plastering, has been 63 Cal 107- Fletcher v. Kelly, 88 regarded as a fixture. McAuliffe v. Iowa 475, 55 N. W. 474, 21 L. R. A. Mann, 37 Mich. 539. 347- Fortescue v. Bowler, 55 N. J. Boilers and steam engines an- Eq 741 38 Atl 445; Carver v. Gough. nexed by tenant have been held part 153 Pa' 225 25 Atl 1124; Beckwith of realty. Donnewald v. Turner V Bovce 9 Mo. 560 (sheds for mak- Real Estate Co.. 44 Mo. App. 350; ing brick). But that a particular Merritt v. Judd 1^ Cal_ 59; Do^ building erected by the tenant was schuetz v. HolUday, 82 m. 371. So L. and Ten. 99. 1570 FIXTURES. §240 § 240. Removable fixtiirGS. a. Trade fixtures. Since the strict application of the rule that things annexed to the land, although at the time of annexa- a heating plant consisting of a boiler set in brick and cement and screwed to pipes running through building. Pond & Hasey Co. v. O'Connor, 70 Minn. 266, 73 N. W. 159, 248. But that a portable engine and a saw- mill, though in some degree attached to the soil, were personalty, see Hughes V. Edisto Cypress Shingle Co., 51 S. C. 1, 28 S. B. 2, and that view was taken of a boiler cemented to brick work merely to keep it in place (Cooper v. Johnson, 143 Mass. 108, 9 N. E. 33), and of a steam heating plant (semble) Insurance Co. V. Buckstaff, 3 Neb. Unoff. 632, 92 N. W. 755. And see Kelsey v. Dur- kee, 33 Barb. (N. Y.) 410; Barker V. Brick Co., 4 Ohio Dec. 270. En- gines and boilers have usually been regarded as part of the realty when the question has arisen as between persons standing in other relations. See 13 Am. & Eng. Enc. Law (2d Ed.) p. 663. A cotton gin has been held to be a fixture (Hughes v. Edisto Cypress Shingle Co., 51 S. C. 1, 28 S. E. 2), as has a "calender," a machine weighing six tons and extending into second story of building, firmly fastened and difficult of removal. Talbot v. Whip- ple, 96 Mass. (14 Allen) 177. Machin- ery attnched to building by the tenant with bolts and screws was also held to be a part of the realty, under stat- ute making all things permanently attached fixtures (McNally v. Con- nolly, 70 Cal. 3, 11 Pae. 320), and a fire frame fixed in the fire place was so regarded. Gaffield v. Hap- good, 34 Mass. (17 Pick.) 192, 28 Am. Dec. 290. The following articles have been regarded as personalty: Chairs in a theatre secured in place by screws (Metropolitan Concert Co. v. Sperry, 9 N. Y. St. Rep. 342); "gas fixtures" (Lav/rence v. Kemp, 8 N. Y. Super, Ct. [1 Duer] 363; Wolff v. Sampson, 123 Ga. 40^0, 51 S. E. 335 [semble]; Guthrie v. Jones, 108 Mass. 191, 11 Am. Rep. 335; Jarechi v. Philhar- monic Soc, 79 Pa. 403, 21 Am. Rep. 78); apparatus for generating gas (Hays V. Doane, 11 N. J. Eq. [3 Stockt.] 84); posts and boards lying on premises, not intended to be used for erections thereon, and also hoop poles placed in the ground by the tenant (Wing v. Gray, 36 Vt. 261); machinery of a movable character, though attached to the building (Bartlett v. Haviland, 92 Mich. 552, 52 N. W. 1008. And see Holbrook v. Chamberlin, 116 Mass. 155, 17 Am. Rep. 146); planking laid on dock and stringer to which it is attached (Crerar v. Daniels, 109 111. App. 654); plants and loam in pots (Young V. Chandler, 102 Me. 251, 66 Atl. 539) ; stools in a store on which to sit (Lawrence v. Kemp, 8 N. Y. Super. Ct. [1 Duer] 363); glass case, stand of drawers and mirror, nailed by tenant of restaurant to the walls (Guthrie v. Jones, 108 Mass. 191, 11 Am. Rep. 335. And see Kimball v. Grand Lodge of Masons, 131 Mass. 59); still for making whiskey (Ter- ry V. Robins, 13 Miss. [5 Smedes & M.] 291. But see Moore v. Smith, 24 111. 512; Pillow V. Dove, 6 Tenn [5 Hayw.] 109). §240 REMOVABLE FIXTURES. 1571 tion belonj^ng to a person other than the owner of the land, be- come a part of the land, would operate to give to the landlord all articles annexed by the tenant for the better enjoyment of the premises, and so tend to prevent the making of improvements by him, and the most beneficial utilization of the premises, the rule has been subjected to considerable relaxations in the ten- ant's favor, and certain classes of articles, although of such char- acter and so affixed that, as between persons in other relations, they would be treated as permanent annexations, are ordinarily removable by him. There are occasional statements to be found to the effect that all annexations made by the tenant for the better enjoyment of the premises are removable by him,^^ but these are not in ac- cord with the weight of authority, which is, substantially, that the tenant's rights of removal are restricted to(l) trade fixtures; (2) domestic and ornamental fixtures; and, by some decisions, (3) agricultural fixtures. These various classes of fixtures and the tenant's rights in reference thereto will be considered in the above order. The exceptional right of the tenant to remove fixtures annexed for the purpose of trade was, in a quite early ease, stated to exist "in favor of trade and to encourage industry, "^^ and that seems 28 So it is has been asserted that the better enjoyment of the lease- the tenant may remove "erections hold" (Hedderich v. Smith, 103 Ind. made for the more beneficial enjoy- 203, 2 N. E. 315, 53 Am. Rep. 509). ment of the premises" (Bircher v. And see to the same general effect, Parker, 40 Mo. 118) ; fixtures an- Asheville Woodworking Co. v. South- nexed by the tenant "for his conven- wick, 119 N. C. 611, 26 S. B. 253; ience and comfort" (State v. White- Shaffer Estate Co. v. Alvord, 2 Cal. ner, 93 N. C. 590); erections made App. 602, 84 Pac. 279; and Dubois by tenant "in furtherance of pur- v. Kelly, 10 Barb. (N. Y.) 5O0, crit- pose for which the premises were icised in Ombony v. Jones, 19 N. Y. leased" (Kerr v. Kingsbury, 39 Mich. 234. In Winner v. Williams, 82 150, 33 Am. Rep. 362; Hay ward v. Miss. 669, 35 So. 308, it is said that School Dist. No. 9, 139 Mich. 539, there is an exceptional right of re- 102 N. W. 999); articles annexed by moval in favor of "tenants, trades him for purposes of trade, "or some and manufactures," thereby assert- other immediate or temporary uses" ing a right of removal in a tenant (Bliss v. Whitney, 91 Mass. [9 Al- withont reference to whether tiie l€n] 114, 85 Am. Dec. 745); any- annexation is for any particular par- thing affixed by the tenant (Ross v. pose. Campbell, 9 Colo. App. 38, 47 Pac. 29 poole's Case, 1 Salk. 368, per 465); buildings erected by him "for Hoit, C. J. 1572 FIXTURES. § 240 the logical ground on which to base it. Occasionally it is said to be based on the presumption of an intention on the part of the tenant subsequently to remove the article,-^^ but there appears no more reason for such a presumption when the annexation is for purposes of trade than when it is for any other purpose. Aa before remarked, it is a reasonable presumption that in every case of an annexation by a tenant having an estate of limited duration he intends, if possible, to remove the article annexed upon the termination of his interest, but such an intention should not, it seems, affect the rights of the remainderman or rever- sioner.^i Occasionally, moreover, the court seems to have re- garded the question whether a particular article is a trade fix- ture, for the purposes of the rule, as dependent on whether the tenant intended it to be a trade fixture.^^ But whether an article is a trade fixture is, it is conceived, in no way a question whether it was intended so to be, there usually, indeed, being no inten- tion in this regard, but it is rather a question whether, so far as appears from the nature of the article, and the mode in which the premises were utilized, it was annexed for the purpose of aid- ing in the conduct of a trade. The determination of the question whether a particular article or structure comes within the rule, as being evidently annexed by the tenant to aid in the carrying on of his trade or business, seems to involve but little difficulty. There have, however, been numerous adjudications upon the subject, and engines and boil- ers,"^ industrial machinery, and apparatus of various kinds,^^ 30 Hill V. Sewald, 53 Pa. 271, 91 11ns, 109 Iowa, 501, 98 N. W. 543; Am. Dec. 209; Watts-Campbell Co. Brownell v. Fuller, 60 Neb. 558, 83 T. Yuengling, 51 Hun, 302, 3 N. Y. N. W. 669; Ward v. Earl, 86 111. App. Supp. 869. In Menger V. Ward (Tex. 635; Straight v. Mahoney, 16 Pa. Civ. App.) 28 S. W. 821, an intention Super. Ct. 155 (semble) ; Carver v. on the part of the tenant that the Gough, 153 Pa. 225, 25 Atl. 1124 articles should be permanently a (semble). part of the realty was held to pre- 33 Bergh v. Herring-Hall-Marvin elude their removal as trade fixtures. Safe Co., 69 C. C. A. 212, 136 Fed. »i See ante, at note 22. 36S; Dobschuetz v. Holliday, 82 111. »2 Linahan v. Barr, 41 Conn. 471; 371; Holbrook v. Chamberlin, 116 Royce v. Latshaw, 15 Colo. App. 420, Mass. 155, 17 Am. Rep. 146; Smith v. 62 Pac. 627; Baker v. McClurg, 198 T^Tiitney, 147 Mass. 479, 18 N. E. 111. 28, 64 N. E. 701, 59 L. R. A. 131, 229; Conrad v. Saginaw Min. Co., 54 92 Am. St Rep. 261; Roth v. Col- Mich. 249, 20 N. W. 39, 52 Am. Rep. §240 REMOVABLE FIXTURES. 1573 appliances annexed by the proprietor of a place of public enter- tainment or amusement,^-'^ buildings,^^ or parts of a building,^" 817; Andrews v. Day Button Co., 132 Fed. 229; Holbrook v. Chamberlin, N. Y. 348, 30 N. E. 831; Hayes v. 116 Mass. 155, 17 Am. Rep. 146; Hey New York Gold Min. Co., 2 Colo. 273; v. Bruner, 61 Pa. 87. Oil or gas well Hewitt V. Steam Engine Co., 65 111. casings and other appliances. Shel- App. 153; Davis v. Moss, 38 Pa. 346; lar v. Shivers, 171 Pa. 569, 33 Atl. Winner v. Williams, 82 Miss. 669, 35 95. Gang edger in sawmill. Stokoe So. 308. But see Menger v. Ward v. Upton, 40 Mich. 581, 29 Am. Rep. (Tex. Civ. App.) 28 S. W. 821. 560. Railroad rails. Northern Cent. S4 Cider mill. Holmes v. Tremper, R. Co. v. Canton Co., 30 Md. 347. 20 Johns. (N. Y.) 29, 11 Am. Dec. 35 Bar counters and shelving. Guth- 238. Cotton gin. McMath v. Levy, rie v. Jones, 108 Mass. 191, 11 Am. 74 Miss. 450, 21 So. 9, 523. Distill- Rep. 335; Bush v. Havird, 12 Idaho, ing apparatus. Moore v. Smith, 24 352, 86 Pac. 529; Berger v. Hoerner, 111. 512; Pillow V. Love, 6 Tenn. (5 36 111. App. 360; Cubbins v. Ayres, 72 Hayw.) 109; Reynolds v. Shuler, Tenn. (4 Lea) 329; Webber v. Frank- 5 Cow. (N. Y.) 323; Burk v. Baxter, lin Brew. Co., 123 App. Div. 465, 108 3 Mo. 207. Ovens in a bakery. Bak- N. Y. Supp. 251. And see Asheville er V. McClurg, 96 111. App. 165; Id., Wood Working Co. v. Southwick, 119 198 111. 28, 64 N. E. 701, 59 L. R. A. N. C. 611, 26 S. E. 253. But O'Brien 131, 92 Am. St. Rep. 261. Compare v. Kusterer, 27 Mich. 289, is to the Collamore v. Gillis, 149 Mass. 578, effect that a bar counter is not re- 22 N. E. 46, 5 L. R. A. 150, 14 Am. movable. Oyster counter. Guthrie St. Rep. 460. Hydraulic press. Fin- v. Jones, 108 Mass. 191, 11 Am. Rep. ney v. Watkins, 13 Mo. 291. Electric 335. "Club house" erected in beer lighting machinery. Brown v. Reno garden. Hedderich v. Smith, 103 Elec. Light & Power Co., 55 Fed. Ind. 203, 2 N. B. 315, 53 Am. Rep. 229; Havens v. West Side Elec. 509. Cisterns, sinks, water and gas Light Co., 17 N. Y. Supp. 580. Min- pipes in hotel or boarding house. ing machinery and appliances. Up- Wall v. Hinds, 70 Mass. (4 Gray) degraff v. Lesem, 14 Colo. App. 297, 256, 64 Am. Dec. 64. Ball room 62 Pac. 342; Dobschuetz v. Holliday, erected by lessee of inn. Ombony v. 82 111. 371; Merritt V. Judd, 14 Cal. Jones, 19 N. Y. 234. Bowling alley. 59; Couch v. Y^^lsh, 24 Utah, 36, 66 Hanrahan v. O'Reilly, 102 Mass. 201. Pac. 600. Sawmill. Kile v. Gieb- "Scenic railway." L. A. Thompson ner, 114 Pa. 381, 7 Atl. 154. Plat- Scenic R. Co. v. Young, 90 Md. 278, form scales. Bliss v. Whitney, 91 44 Atl. 1024, 47 L. R. A. 127. Hotel Mas=. (^ Allen) 114, 85 Am. Dec. attachments, including bake house, 745: Allen v. Kennedy, 40 Ind. 142. oven, fountain, awning, furnace, See Seeger v. Pettit, 77 Pa. 437, 18 washtubs, grates, office co«nter. Am. Rep. 452. Heating apparatus in shelving and counter in cigar store greenhouse. Royce v. Lat?haw, 15 and bar attached to hotel, shelving in Colo. App. 420, 62 Pac. 627. Shaft- store room, and certain inside shut- ing, belts and pulleys. Brown v. ters and doors. Carlin v. Ritter, 68 Reno Elec. Light & Power Co., 55 Md. 478, 13 Atl. 370, 16 Atl. 301, (J 1574 FIXTURES. S 240 and even plants grown hj a niirseryman,^^ have all been regarded as trade fixtures in particular cases, and as, therefore, removable. Generalb^ it seems, an article so annexed as to be part of the realty is a trade fixture if the purpose of the a.nnexation v^^as to aid in the conduct of a calling exercised for the purpose of pecun- iary profit, provided this calling is not exclusively agricultural in its nature, and the fact that the article has also the qualities of a domestic or agricultural fixture is immaterial in this re- spect.39 Buildings erected by the tenant merely for the purpose Am. St. Rep. 467. Partitions and Lumbering Mfg. Co., 99 Cal. G36, stalls in saloon. Bernheimer v. 34 Pac. 321. But see Burkhardt v. Adams, 70 App. Div. 114, 75 N. Y. Hopple, 6 Ohio Dec. 127, to effect Supp. 93. Water closet and urinal that a building erected for an office, attached to saloon. Bernheimer v. but used also for other purposes, was Adams, 70 App. Div. 114, 75 N. Y. not removable. Building erected Supp 93. ^^^ "^® °^ saloon. Lewis v. Ocean 36 Repair shop built by railway Nav. Pier Co., 125 N. Y. 341, 26 N. company. Union Terminal Co. v. E. 301. Building erected for livery Wilmar & S. F. R. Co., 116 Iowa, 392, stable. Firth v. Rowe. 53 N. J. Eq. 90 N. W. 92. Greenhouse erected by 520, 32 Atl. 1064. In West Shore R. florist. Royce v. Latshaw, 15 Colo. Co. v. Werner (N. J. Err. & App.) 68 App. 420, 62 Pac. 627; Free v. Stuart, Atl. 225, it is in effect stated that 39 Neb. 220, 57 N. W. 991. Engine the tenant cannot remove a building and machinery house. Smith v. erected by him for hotel purposes, as Whitney, 147 Mass. 479, 18 N. E. constituting a trade fixture. 229; Brown v. Reno Elec. Light & ^7 Counting room of wood erected Power Co., 55 Fed. 229; White's Ap- in store. Brown v. Wallis, 115 Mass. peal, 10 Pa. 252. Ice house erected 156. by dealer in ice. Antoni v. Belk- 3s Penton v. Robart, 2 East, 90; nap, 102 Mass. 193. Dwellings in- Lee v. Risdon, 7 Taunt. 191; Brooks tended to be merely accessory to v. Galster, 51 Barb. (N. Y.) 196; mining operations. Conrad v. Sagi- Miller v. Baker, 42 Mass. (1 Mete.) naw Min. Co., 54 Mich. 249, 20 N. 27; Whitmarsh v. Walker, 42 Mass. W. 39, 52 Am. Rep. 817; Couch v.' (1 Mete.) 315; DufCus v. Bangs, 122 Welsh,' 24 Utah, 36, 66 Pac. 600. N. Y. 423, 25 N. E. 980. See Maples Building erected for use both as v. Millon, 31 Conn. 598; Fox v. Brls- dwelling and for carrying on trade, sac, 15 Cal. 223; Wintermute v. Van Ness v. Pacard, 27 U. S. (2 Pet.) Light, 46 Barb. (N. Y.) 278. 137, 7 Law. Ed. 374. Depot building 39 See Wall v. Hinds, 70 Mass. (4 erected by railway company. West- Gray) 256. 64 Am. Dec. 64; Holmes ern North Carolina R. Co. v. Deal, 90 v. Tremper, 20 .Tohns. (N. Y.) 29, 11 N. C. 110; Can- V. Georgia R. Co., 74 Am. Dec. 238 (Cider mill); Van Ga. 74. Frame office building in Ness v. Pacard, 27 U. S. (2 Pet.) lumber yard. Security Loan & Trust 137, 7 Law. Ed. 374. Co. V. Williamette Steam Mills § 240 REMOVABLE FIXTURES, 1575 of leasing them have, however, been regarded as not within the designation of trade fixtures.'^^ In several states there is a statutory provision in confirmation of the right to remove trade fixtures, it being provided that the tenant "may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for pur- poses of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises. "^^ Such a statute has been held not to authorize the removal of a four story building erected by a ten- ant to be used for stores and as a lodging and boarding house.^^ A statute of one state,'^^ providing that a tenant, during the term or a continuation thereof, or while he is in possession under the landlord, may remove fixtures erected by him, has been construed, in view of a previous decision on which it is based, to give a right to remove trade fixtures only.^"* It is generally recognized that the tenant cannot remove a fixture, even though affixed for purposes of trade, if the removal will result in injury to the premises.'*^ The injury must, how- 40 Cannon v. Hare, 1 Tenn. Ch. 22. v. Jones, 19 N. Y. 234; Cohen v. ^1 California Civ. Code, § 1019; Wittemann, 100 App. Div. 338, 91 N. Idaho Civ. Code, § 2385; Montana Y. Supp. 493; Cubbins v. Ayres, 72 Rev. Codes 1907, § 4578; North Da- Tenn. (4 Lea) 329; Crymes v. Bow- kota Rev. Codes 1905, § 3492; South eren, 4 Moore & P. 143; Gibson v. Dakota Rev. Civ. Code, § 899. Hammersmith & City R. Co., 2 Drew 42 West Coast Lumber Co. v. Ap- & S. COS, 32 Law J. Ch. 337. So an ad field, 86 Cal. 335, 24 Pac. 993. dition to a building is not removable *3 Georgia Code 1895, § 3120. if its removal would leave the prem- 44 Wright v. Du Bignon, 114 Ga. ises in worse condition than before 765, 40 S. E. 747, 57 L. R. A. 669. its erection. Friedlander v. Ryder, 45 Davis v. Jones, 2 Barn. & Aid. 30 Neb. 783, 47 N. W. 83, 9 L. R. A. 165; Priedlander v. Ryder, 30 Neb. 700. 783, 47 N. W. 83, 9 L. R. A. 700; In Michigan the question of the Powell V. McAshan, 28 Mo. 70; Fort- right to remove articles as trade escue V. Bowler, 55 N. J. Eq. 741, 38 fixtures is determined, it seems, not Atl. 445; Capen v. Peckham, 35 Conn, so much by whether the removal will 88; Bernheimer v. Adams, 70 App. injure the building, as by whether Div. 114. 75 N. Y. Supp. 93; Chase v. they have been so built into the New York Insulated Wire Co., 57 building as to become a part of it. 111. App. 205; Collamore v. Gillis, O'Brien v. Kusterer, 27 Mich. 494; 149 Mass. 578. 22 N. E. 46, 14 Am. Felcher v. McMillan, 103 Mich. 494, St. Rep. 460, 5 L. R. A. 150; Ombony 61 N. W. 791. This view seems to 1576 FIXTURES. §240 ever, be substantial, since, as has been remarked, "a screw or nail can scarcely be drawn without attrition. "■^^ In determining whether the removal involves injury to the premises, their con- dition at the time of the removal is to be compared with their condition at the time of the annexation, and the removal is not allowable if, to make the annexation, the premises were altered or cut away, and the removal of the fixture would leave the premises in a maimed or unfinished condition.'^ "^ ^nd if the ten- ant has substituted a new fixture for one on the premises at the time of taking possession, and this latter has been injured or per- manently removed, he cannot assert any right to remove the substituted article, since the effect would be to leave the premises in worse condition than when he took the lease.^^ By some decisions the tenant cannot remove a trade fixture if the removal will result in the destruction of the fixture, or its reduction to a mere mass of crude materials,^^ though the fact be an outgrowth of the view that a removable fixture is necessarily per- sonal property. See post, § 241. 46 Martin v. Roe, 7 El. & Bl. 237. See Foley v. Addenbrooke, 13 Mees. & W. 174; Hanrahan v. O'Reilly, 102 Mass. 201; Powell v. McAshan, 28 Mo. 70; Bernheimer v. Adams, 70 App. Div. 114, 75 N. Y. Supp. 93; Arabs V. Hill, 10 Mo. App. 108. 47 Whiting V. Brastow, 21 Mass. (4 Pick.) 310; Chase v. New York In- sulated Wire Co., 57 111. App. 205; Holmes v. Standard Pub. Co. (N. J. Eq.) 55 Atl. 1107; Friedlander v. Ryder, 30 Neb. 783, 47 N. W. 83, 9 L. R. A. 700. 48 Hay V. Tillyer (N. J. Eq.) 14 Atl. 18; Ashby v. Ashby, 59 N. J. Eq. 536, 46 Atl. 528; Dougherty v. Spencer, 23 111. App. 357; Bovet v. Holzgraft, 5 Tex. Civ. App. 141, 23 S. W. 1014; Pond & Hasey Co. v. O'Connor, 70 Minn. 266, 73 N. W. 159, 248. See Felcher v. McMillan, 103 Mich. 494, 61 N. W. 791. But in Ross v. Campbell, 9 Colo. App. 38, 47 Pac. 465, it is in effect held that he may remove the substituted arti- cles on restoring the premises to the same condition as they were in at the time of the lease. And see Beers v. St. John, 16 Conn. 322. In Andrews v. Day Button Co., 132 N. Y. 348, 30 N. E. 831, the tenant was allowed to remove an engine which he had substituted for one on the premises, but there the old engine remained on the premises, available to the landlord. Roth v. Collins, 109 Iowa, 501, 80 N. W. 543, seems to involve a view contrary to that stat- ed in the text. There it was held that where the lessee wrongfully re- moved fixtures belonging to the les- sor and substituted fixtures be- longing to himself, these latter were removable as trade fixtures, and the leEian v. Best, 30 111. App. 323; Davis v. Carsley Mfg. Co., 112 111. App. 112; Gauggel v. Ainley, 83 111. App. 5S2; Spencer v. Commer- cial Co., SO Wash. 520, 71 Pac. 53; Sharp V. Millignn, 23 Beav. 419; Thresher v. East London Water- works Co., 2 Barn. & C. 6GS; Ex parte Lloyd, 1 Mont. & A. 511. The case of Loughran v. Ross, 45 N. Y. 792, 6 Am. Rep. 173, to this effect, is sontc- what questioned by Peckham, J., in Lewis V. Ocean Nav. & Pier Co., 125 N. Y. 341, 26 N. E. 301, but the rulo is approved in Talbot v. Cruger, 151 N. Y. 117, 45 N. E. 364; Stephens v. Ely, 162 N. Y. 79, 56 N. E. 499; Precht V. Howard, 187 N. Y. 136, 79 N. E. 847; Nieland v. Mahnken, 89 App. Div. 463, 85 N. Y. Supp. 809. In Baker v. McCIurg, 198 111. 28, 64 N. E. 701, 59 L. R. A. 131, 92 Am. St. Rep. 261, it was decided that where the original lease was "can- 1594 FIXTURES. § 242 this effect lays some stress upon the fact that the new lease contains a covenant by the lessee to yield up the premises at the end of the term in as sjood condition as at the time of the lease/ 44 but it does not seem that this can be material since, even in its absence, a tenant has no right to remove improve- ments covered by the lease to him. This doctrine has been held to apply as against one to whom the right to remove the fixtures has been transferred by the ten- ant who annexed them, upon the taking of a new lease by such transferee,^45 r^j^d it has also been decided that such a transferee loses his right of removal if his transferor, while still in pos- session of the premises, takes a new lease. ^^e The rule has even been applied as against a sublessee who, after making annexa- tions, took a new lease from the original lessor.^^T Since this doctrine is based upon the theory that the new lease includes the fixtures, as constituting a part of the realty, it necessarily follows that it has no application to articles not so annexed, or not of such character, as to constitute fixtures.^ ^s celed" during the term and a new L. R. A. 3G9, 61 Am. St. Rep. 161. lease made for tlie balance of the the presence of such a covenant Is term, which was executed by but one referred to, but the rule is recog- of the two former lessees, and this nized independently thereof. In was done merely to release the other George Bauernschmidt Brew. Co. v. from liaMHty, there was not a new McColgan, 89 Md. 135, 42 Atl. 907, lease within the rule. there was such a covenant, but no In Cronkhite v. Imperial Bank of particular effect was given thereto, Canada, 14 Ont. Law Rep. 270, it was and the same may be said of Steph- lield that a clause in the new lease, ens v. Ely, 162 N. Y. 79, 56 N. E. 499, "provided that the lessee may remove where the right of removal was orig- his fixtures," preserved his right inally given by an agreement made of removal as referring to fixtures subsequent to the original lease, already annexed by him. Compare 145 Talbot v. Cruger, 151 N. Y. 117, St. Louis V. Nelson, 108 Mo. App. 45 N. E. 364; Van Vleck v. White, 60 210, 83 S. W. 271, where the right App. Div. 14, 72 N. Y. Supp. 1026. of removal given by the second lease I'ls Bauernschmidt Brew. Co. v. Mc- was restricted to improvements Colgan, 89 Md. 135, 42 Atl. 907. erected "during said term." i*^ Mclver v. Estabrook, 134 Mass. 1*4 Wadman v. Burke, 147 Cal. 351, 550. 81 Pac. 1012, 1 L. R. A. (N. S.) 1192; "^ Carlin v. Ritter, 68 Md. 478, 13 Watriss v. Cambridge First Nat. Atl. 370, 16 Atl. 301, 6 Am. St. Rep. Bank, 124 Mass. 571, 26 Am. Rep. 467. Smusch v. Kohn, 22 Misc. 341, 694. In Sanitary Dist. of Chicago v. 49 N. Y. Supp 176, seems also to ba Cook, 169 111. 184, 48 N. E. 461, 39 to this effect, as is perhaps Bern- §242 LOSS OF RIGHT OF REMOVAL. 1595 Furthermore, it would seem to be inapplicable in any jurisdiction where removable fixtures are regarded as personal property/'*'' since, if personal property, they would not ordinarily be covered by a second lease, which is in terms of the land only. There seems to be some inconsistency between this rule, as asserted, that a renewal lease puts an end to the right of removal, and the decisions, before referred to,!'^^ that a tenant holding over by permission does not lose his right of removal, since such permission is in effect a new lease, though only for a brief or indefinite space of time.^^^ The cases, however, undertake to distinguish in this regard between a holding under an extension of the original lease and under a new lease, without, it may be said, asserting any satisfactory ground of distinction.i52 j^ q^q heimer v. Adams, 70 App. Div. 114, 75 N. Y. Supp. 93, in which latter case it is said that the rule is "not applicable to trade fixtures, not dis- tinctively realty, designed to retain their character as personal property and capable of removal without ma- terial injury to the freehold." If this means that trade fixtures are not within the general rule because they are not part of the land, It Is not in accord with the decision of the New York court of appeals in Talbot V. Cruger, 151 N. Y. 117, 45 N. B. 364. If it means that there are two classes of trade fixtures, ona of which constitutes personalty and the other a part of the land, it is not supported by authority. This case is affirmed without opinion in Bernheimer v. Adams, 175 N. Y. 472, 67 N. E. lOSO, and is approved In Bergh v. Herring-Hall-Marvin Safe Co., 69 C. C. A. 212, 136 Fed. 368, 70 L. R. A. 756, where the court seems to construe its language as meaning that trade fixtures are not within the rule because they are personalty. 149 See ante, at note 82. 150 See ante, at note 117. 151 It is said in reference to this rule, in Amos & Ferard, Fixtures (3d Ed.) p. 159, that in the case of the renewal of a lease, "there is in reality the grant of a new interst in the premises to the tenant, al- though upon the same conditions as those under which he formerly held. All, therefore, which formed part of the premises at the expiration of the first term must, unless excluded by the agreement of the parties, have passed to the landlord as part ot the reversion out of which the new term is granted to the tenant. It the view here taken is correct, it seems to follow that the tenant's right of removing fixtures will be lost, although the further tenancy may arise merely from his holding over and paying rent after the ex- piration of his term; for he thereby becomes a tenant under a new ten- ancy from year to year." The prin- ciple is the same, it is conceived, if the owner's consent to the tenant's continued possession is indicated by word of mouth, without the accept- ance of rent or the execution of any written instrument. He holds under a new tenancy, not under the old. 152 Compare ante, § 210. 1596 FIXTURES. § 242 case the question of the applicability of the rule is regarded as dependent on whether the right of continued possession is given orally or in writing,!^^ -yvhile in others it is regarded as dependent on whether the continued possession is on the same terms as be- fore, it being in such case regarded as under a mere extension of the old lease, while it is under a new lease if the terms are different.154 In two or three jurisdictions the doctrine that the acceptance of a new lease, not referring to the fixtures, involves a loss of the right of removal, has been repudiated.i^^ ^s before sug- gested, in so far as in either of these jurisdictions removable fixtures may be regarded as personalty, this view seems the only possible one, and the judicial statements to the effect that the right of removal is not lost by the new lease seem in fact to be based on the theory that the fixtures are the personal effects of IBS Ex parte Hemenway, 2 Lowell, elaborate opinion to this effect by 496, Fed. Cas. No. 6,346. Cooley, J. There, however, the right 154 Crandall Inv. Co. v. Ulyatt, 40 of removal existed by reason of an Colo. 35, 90 Pac. 59; Ross v. Camp- express stipulation, and this would bell, 9 Colo. App. 38, 47 Pac. 465; seem to render the articles annexed Royce v. Latshaw, 15 Colo. App. 420, personalty (see post, § 243 c). This 62 Pac. 627; Hedderich v. Smith, 103 case is apparently approved in Radey Ind. 203, 2 N. E. 315, 53 Am. Rep. v. McCurdy, 209 Pa. 306, 58 Atl. 558, 509; Watriss v. Cambridge First 67 L. R. A. 359, 103 Am. St. Rep. Nat. Bank, 124 Mass. 571, 26 Am. 1009, though there the continued pos- Rep. 694; Estabrook v. Hughes, 8 session was regarded as under an Neb. 496; Young v. Consolidated "extension" of the lease. It is also Imp. Co., 23 Utah, 586, 65 Pac. 720; approved in V/ittenmeyer v. Board Lynn v. Waldron, 38 Wash. 82, 80 of Education, 10 Ohio Cir. Ct. R. 119, Pac. 292. ^^d the same view was asserted in Where there is a stipulation for Devin v. Dougherty, 27 How. Pr. (N. extension in the original instrument Y.) 455. In Wright v. Macdonnell, of lease, the tenant holds under the 88 Tex. 140, 30 S. W. 907, also, the original lease during the extended court refers with approval to tha term as before (ante, § 218), and case first cited, though the decision there can be no question of his is in terms, it seems, based on a pre- losing his right of removal by avail- sumption that the new lease, in that ing himself of the right to extend, case, being intended to be temporary Howe's Cave Ass'n v. Houck, 66 only, until a new lease was drawn Hun, 205, 21 N. Y. Supp. 40; Id., 141 up, did not include the fixtures. N. Y. 606, 36 N. E. 740. In Maryland the former rule has 155 Kerr v. Kingsbury, 39 Mich, been changed by statute. Code Pub. 150, 33 Am. Rep. 362, contains an Gen. Laws 1904, art. 53, § 27. § 243 GRANTS OF RIGHT OF REMOVAL.. X5SI7 the tenant,' ^^^ Avithout, however, any apparent recognition of the fact that tlie doctrine criticized involves the view that the ten- ant does not own the fixtures but has a mere right of removal.^'^'^ In one ease it was decided that the doctrine did not apply, in view of evidence that the language of the new lease was not in- tended to cover the fixtures, supported by a presumption from the relation of the parties that this was not intended.'^s ^ seems that when the description in such lease is general in terms, evidence would always be admissible to show that it was not in- tended by the parties that tiie fixtures should be covered there- by. 159 It has been held that the reason of the doctrine above discussed applies in ease the tenant takes a contract for the sale to him of the premises, and thereafter remains in possession thereunder, it being decided that he thereby loses the right of re- moval,i8o and the same effect has been given to a contract be- tween the landlord and tenant, made after the institution of an ejectment suit by the former against the latter, by which the former agreed not to issue a writ of possession for a certain period.' ®i § 243. Stipulations gfranting rights of removal. a. General considerations. Not infrequently the parties, by stipulation in the instrument of lease, or distinct therefrom, undertake to determine the tenant's right to remove annexations to the land. We will first consider the case of stipulations grant- ing rights of removal and then of stipulations restricting such rights.' ^2 156 When the fixtures as originally 150, 33 Am. Rep. 362; Wright v. Mac- annexed by the tenant can be re- donnell, 88 Tex. 140, 30 S. W. 907. garded as personalty by reason of iss Second Nat. Bank v. O. E. Mer- an express stipulation giving the rill Co., 69 Wis. 501, 34 N. W. 514. right of removal (post, § 243 c),»it Compare Baringer v. Evenson, 127 seems clear that the renewal lease Wis. 36, 106 N. W. 801. does not operate upon them so as to 159 See 4 Wigmore, Evidence, § deprive the tenant of the right of 2465; Amos & Perard, Fixtures (3d removal. McCarthy v. Trumacher, Ed.) 160. 108 Iowa, 284, 78 N. W. 1104, 75 Am. leo Merritt v. Judd, 14 Cal. 59. St. Rep. 254. See Hertzberger v. ici Fitzherbert v. Shaw, 1 H. Bl. V/itte, 22 Tex. Civ. App. 320, 54 S. 258; Heap v. Barton, 12 C. B. 274. W. 921. 362 Occasionally the lease in terms 15T See Kerr v. Kingsbury, 39 Mich, transfers to the lessee fixtures then 1598 FIXTURES. §243 A stipulation giving rights of removal has been assumed to displace entirely the common-law rights of the tenant in this ra- gard/^2 so that if the stipulation gives a right to remove only at a certain time or under certain conditions, the tenant cannot assert a right to remove the article as a trade, domestic, or agricultural fixture, without reference to such restriction, A stipulation granting to the tenant a right to remove an article annexed to the land is not within the fourth or seventeenth sec- tions of the Statute of Frauds, and so need not be in writing,^*'* though evidence of an oral stipulation in this regard may be in- admissible in the particular case under the "parol evidence rule," as bearing on a matter otherwise provided for in the iastrument of lease. 1^^ Such a stipulation may even be inferred from cir- cumstances.^ ^^ If there is a stipulation clearly giving the tenant the right to remove annexations of a certain character, the fact that the removal will result in injury to the premises is necessarily imma- terial.icT on the premises belonging to the landlord, giving him the right of re- moval. See Handforth v. Jackson, 150 Mass. 149, 22 N. B. 634; O'Brien V. Mueller, 96 Md. 134, 53 Atl. 633; Keefe v. Furlong, 96 Wis. 219, 70 N. W. 1110, 65 Am. St. Rep. 47. 163 See Allen v. Gates, 73 Vt. 222, 50 Atl. 1092; Lake Superior Ship Canal R. & Iron Co. v. McCann, 86 Mich. 106, 48 N. W. 692. In In re New York, 101 App. Div. 527, 92 N. Y. Supp. 8, there is a dictum that a provision authorizing removal does not enlarge the right of removal which the lessee would otherwise have had. This is not always so, as the right of removal apart from stipulation is subject to various re- strictions. 104 Broaddus v. Smith, 121 Ala. 335, 26 So. 34, 77 Am. St. Rep. 01; McCracken v. Hall, 7 Ind. 30; Gray V. Oyler, 65 Ky. (2 Bush) 256; South Baltimore Co. v. Muhlbach, 69 Md. 395, 16 Atl. 117, 1 L. R. A. 545; Powell v. McAshan, 28 Mo. 70; Du- bois v. Kelly, 10 Barb. (N. Y.) 496. 165 See Tait's Ex'r v. Central Lun- atic Asylum, 84 Va. 271, 4 S. E. 697. A stipulation, outside the lease, that a building erected by the lessee shall belong to the lessor, is not in- consistent Avith a recital in the lease of the intended erection of the build- ing, or with a covenant therein that the lessee shall deliver up the prem- ises in as good condition as at the time of the lease. Ryder v. Faxon, 171 Mass. 206, 50 N. E. 631, 68 Am. St. Rep. 417. 166 Gray v. Oyler, 65 Ky. (2 Bush) 256; Howard v. Fessenden, 96 Mass. (14 Allen) 124; Morris v. French, 106 Mass. 326; Ryder v. Faxon, 171 Mass. 206, 50 N. E. 631, 68 Am. St. Rep. 417. 167 Hunt V. Potter. 47 Mich. 197, 10 N. W. 198. See Broa'-ldus v. Smith, 121 Ala. 335, 26 So. 34, 77 Am. § 243 GRANTS OF RIGHT OF REMOVAL. I599 Occasionally the lease give? the tenant in terms the right to remove fixtures only upon the performance of some condition precedent on his part.i'^^ A provision that the lessee shall have the right of removal, "all covenants being complied with" on his part, has been regarded as rendering the performance of the covenants a condition precedent to the removal, so that a tender of performance on condition that the lessor would permit the re- moval was insufficient.! ^^'^ The fact, however, that the lease gave a right to remove improvements only "if the conditions of this lease are fully complied with" was held not to render them irre- movable in equity because the rent, stipulated to be paid in ad- vance, was thirteen days in arrears before a tender thereof was made.!'''*' b. Articles annexed with landlord's assent. Ordinarily, if one annexes an article to another's land by the license or per- mission of the landowner, an agreement that the annexor may St. Rep. 61, apparently to this effect, rent, as well as the expiration of the In Lake Superior Ship Canal R. & lease, were regarded as conditions Iron Co. V. McCann, 86 Mich. 106, 48 precedent to removal. Mathinet v. N. W. 692, it is said that if there Giddings, 10 Ohio, 364. is a stipulation allowing removal, 170 Estabrook v. Hughes, 8 Neb. the mode of annexation is imma- 496. Where the lease gave the ten- terial. In Powell v. McAshan, 28 Mo. ant the right of removal at the ex- 70, it was decided by a majority of piration of the term provided he had two judges to one that a contract paid the taxes, the right to the authorizing the removal of all build- buildings, it was decided, was not ings, sheds, and other temporary lost to him because the tenancy houses and improvements, did not came to an end before the expiration authorize the removal of erections of the term in a way presumably not so connected with buildings already in contemplation of the parties, on the premises that they could not as by condemnation proceedings, be removed without materially In- with taxes unpaid, and he was held juring the latter. This, however, to be entitled to the damages paid was on a construction of the particu- in the condemnr.tion proceedings for lar contract. the things annexed. Muller v. Earle, lessee Snowden v. Memphis Park 35 N. Y. Super. Ct. (3 Jones & S.) Ass'n, 75 Tenn. (7 Lea) 225. ^61. Covenants by the lessee to pay 169 Clemens v. Murphy, 40 Mo. 121. taxes, and by the lessor to permit the So when the landlord agreed that the removal of imr>roveraents, have been tenant might remove his improve- regarded as Independent, the leass ments, "provided the rents are paid not in terms making them otherwise, which may be due on the lease at Strohmever v. Zeppenfield, 28 Mo. its expiration," the payment of the App. 268. iouo FIXTURES. §24G remove the article will be inferred/ "^^ and there are some cases to the effect that a like rule applies if the landlord gives per- mission to the tenant to make erections.^ '^^ The fact, however, that the tenant has an interest in the land during which he may enjoy the benefit of the annexation would seem to render the inference less imperative than when the annexor has no interest therein.^^3 The landlord's mere failure to object cannot be re- garded as constituting a grant of permission for the purpose of such a rule. c. Effect as rendering articles personalty. There are two modes in which a stipulation giving the tenant a right of re- moval might be considered as taking effect, that is, either by re- garding the article annexed as a part of the realty belonging to the landlord, and the stipulation as giving a license to the lessee to come upon the premises and remove it, or by regarding the stipulation as preserving the chattel character of the article and the tenant's title thereto. The latter theory is that which has usually been adopted,!'''^ and this coincides with the view 171 See cases cited 13 Am. & Eng. Enc. Law (2d Ed.) p. 625. 172 Osg-ood V. Howard, 6 Me. (6 Greenl.) 452, 20 Am. Dec. 322; Doak V. Wiswell, 38 Me. 569; Duff v. Sni- der, 54 Miss. 245: Schapira v. Bar- ney, 30 Minn. 59, 14 N. W. 270 (sem- ble) ; Wright v. Macdonnell, 88 Tex. 140, 30 S. W. 907. 173 That the fact that the annexor has an interest in the land may ex- clude the inference of a right of re- moval from the landlord's consent to the annexation, see Cooper v. Adams, 60 Mass. (6 Cush.) 87; Howard v. Fessenden, 96 Mass. (14 Allen) 124; Merchants' Nat. Bank v. Stanton, 55 Minn. 211, 56 N. W. 821, 43 Am. St. Rep. 491; Holmes v. Standard Pub. Co. (N. J. Eq.) 55 Atl. 1107; 13 Am. & Eng. Enc. Law, 626. In Mclver v. Estabrook, 134 Mass. 550, it is de- cided that the lessor's consent to the erection of a bi\ilding does not in- volve an agreement that it is not to be a fixture. 174 Scarth v. Ontario Power & Flat Co., 24 Ont. 446; Broaddus v. Smith, 121 Ala. 335, 26 So. 34, 77 Am. St. Rep. 61; Lake Superior Ship Canal R. & Iron Co. V. McCann, 86 Mich. 106, 48 N. W. 692; Brearley v. Cox, 24 N. J. Law, 287; Mott v. Palmer, 1 N. Y. (1 Comst.) 564; Kribbs v. Alford, 120 N. Y. 519, 24 N. E. 811; White's Appeal, 10 Pa. 252; Wick v. Bredin, 189 Pa. S3, 42 Atl. 17; Wright v. Mac- donnell, 88 Tex. 140, 30 S. W. 907; Fitzgerald v. Anderson, 81 Wis. 341, 51 N. W. 554; Handford v. Jackson, 150 Mass. 149, 22 N. E. 634; Adams V. Goddard, 48 Me. 212; Hershberger V. Johnson, 37 Or. 109, 60 Pac. 838; Stout V. Stoppel, 30 Minn. 56, 14 N. W. 268; Hartwell v. Kelly, 117 Mass. -'?35; Booth v. Oliver, 67 Mich. 664, 35 N. W. 793; Mott v. Palmer, 1 N. Y. (1 Comst.) 564; Wick v. Bredin, 189 Pa. 83, 42 Atl. 17; Adams v. St. Louis & S. P. R. Co., 138 Mo. 242, 28 S. W. 496, 29 S. W. 836. In In re Welch, 108 Fed. 367, it Is §243 GRANTS OF RIGHT OF REMOVAL. IGOi ordinarily taken in regard to an article annexed by one having no interest in the land.^"^ There are a few cases, however, which appear to regard an article annexed, by the tenant, though re- movable by agreement, as constituting a part of the land.^"^ It seems that if the chattel is so closely annexed to the land as to become an integral part thereof, an agreement allowing the ten- ant to remove it might take effect merely as a license, and so not preserve the chattel eharacter.^'^'^ held that if a building is removable by agreement, machinery placed in the building is personalty. 175 See cases cited 13 Am. & Eng. Enc. Law (2d Ed.) 622; Ewell, Fix- tures, c. 3. 176 In Prescott v. Wells, 3 Nev. 82, there is a dictum to that effect; and in Trask v. Little, 182 Mass. 8, 64 N. E. 206, it is said of an article annexed, which the tenant was in terms given the right to remove, that "we think that the character of the platform was such that as soon as erected it became a part of the lealty and not a mere movable chat- tel." No reference is made to the possible effect of the stipulation as making the article personalty. In Newhoff v. Mayo, 48 N. J. Eq. 619, 23 Atl. 262, 27 Am. St. Rep. 455, it is held that, though a building erected by the tenant is removable by him by agreement, he has an in- terest therein amounting to a "chat- tel real." In Griffin v. Marine Co., 52 111. 130, it is held that a mortgage by the lessee of his leasehold inter- est and of improvements made by him which are removable by agree- ment is a mortgage of a chattel real, and not governed by the law as to mortgages of chattels; and in Staf- ford V. Adair. 57 Vt. 63, a mortgage on a building annexed by the lessee under such an agreement was held to be a mortgage of a "chattel real." These cases all seem to assume that the article annexed becomes part of the land, in spite of the agreement. The phrase "chattel real" is ordi- narily used at the present day as de- scriptive of an estate in land less than freehold, and the propriety of its application to a chattel personal which has, by annexation, become part of the land, may perhaps be doubted. In First Nat. Bank v. Adam, 138 111. 483, 28 N. E. 955, it was held that a provision in the lease that buildings to be erected by the lessee should be personal property did not make the building a personal chat- tel, so as to exclude it from the operation of a mortgage on the lease- hold. 177 It is so stated in Hershberger V. Johnson, 37 Or. 109, 60 Pac. 83S, and there are numerous dicta so restrict- ing the effect of an agreement for re- moval when a chattel is annexed by one having no interest in the land. See Sword v. Low, 122 111. 487, 13 N. E. 826; Eaves v. Estes, 10 Kan. 314, 15 Am. Rep. 345; Ford v. Cobb, 20 N. Y. 344; Fortman v. Goepper, 14 Ohio St. 558; Henkle v. Dillon. 15 Or. 610, 17 Pac. 148; Hershberger V. Johnson, 37 Or. 109, 60 Pac. 838; German Sav. & Loan Soc. v. ¥/eber, 16 Wash. 95, 47 Pac. 224, 38 L. R. A. 267. L. and Ten. 101. 1602 FIXTURES. § 243 As removable fixtures, even though regarded as part of the land, are subject to execution in favor of the creditors of the tenant,^ '^^ so a fortiori articles which are removable by agree- ment, being in theory personalty, are subject thereto.^ '^^ Articles removable by the tenant by agreement are not, it has been decided, a part of tlie land, so as to become subject to a mechanic's lien in favor of a third pcrson-is"^ But the mechanics' lien statute may in effect provide otherwise.^^^ d. Validity in favor of and as against third persons. There appear to be no decisions as to whether the right to remove an article annexed, under an agreement for removal, may be exer- cised by the assignee of the leasehold. Kegarding the article as personalty and not as a part of the land,^^^ ^ transfer of the lease- hold interest in the land would seem to be insufficient in itself to transfer such article, in which case the title thereto and the consequent right of removal would remain in the original les- j-gg 182a ^Q express transfer of the article by the lessee would no doubt be operative in favor of the transferee and give him the right of removal. A stipulation for the right to remove articles annexed by the tenant may be asserted by him, it has been decided, against one claiming under a prior mortgage made by the landlord, provided the security of the mortgage is not affected by such removal,^ ^^ 178 See ante, at note 99. seems equivalent to saying that its 1-9 Broaddus v. Smith, 121 Ala. character was not changed, but that 335, 26 So. 34, 77 Am. St. Rep. 61, the parties had the right merely to is to this effect. treat it for certain purposes as per- 180 White's Appeal, 10 Pa. 252. sonal property. And see Richardson v. Koch, 81 Mo. i82 See ante, at note 175. 264. i*2n But in Kribs v. Alford, 120 N. 181 See Richardson v. Koch, 81 Mo. Y. 519, 24 N. E. 811, it was assumed 264; Hart v. Globe Iron Works, 37 that articles annexed by the lessee Ohio St. 75. In Dobschuetz v. Holli- but removable by agreement pass day, 82 111. 371, it was decided that under an assignment of the lease, it articles annexed, though removable being held, however, that the as- hy agreement, were part of the land, signee, in the particular case, took so that the person furnishing them subject to a prior mortgage of the was entitled to a mechanic's lien, articles, as he had notice thereof. The court fsays that the agreement i83 Broaddus v. Smith, 121 Ala. of the parties to treat the article as 335, 26 So. 34, 77 Am. St. Rep. 61; personaltT could not change the Paine v. McDowell, 71 Vt. 28, 41 character of the property so far as Atl. 1042. third parties were concerned. This § 243 GRANTS OF RIGHT OF REMOVAL. 1603 and this was held to be the case even though the stipulation was not made till after foreclosure, if made during the period for redemption.! S4 it has been held, however, that the tenant cannot assert such right as against a subsequent lessee of the premises, who took his lease without notice of the agreement.^^^ And the stipulation, if by a life tenant lessor, is not enforcible by the lessee, after the life tenant's death, as against the remainder- man. ^^e e. Loss of benefit of stipulation— Time for removal. If arti- cles removable by agreement are to be regarded as personalty, in accordance with the view usually expressed,!^^ it would seem to follow that the rule applying to the removal of fixtures, that in the absence of agreement they must be removed during the term, or at least before the tenant relinquishes possession, can have no application, and that the tenant has the same time for removal as if the articles were in no way physically annexed to the land, that, in other words, the tenant, though guilty of a trespass on the land if he undertakes to remove the fixtures after he relinquishes possession, retains the title to them, as does any other person whose personal property is on another's land, until he loses his right to recover them by the running of the limitation period.i^^ This position, however, logical as it may be, is not in accordance with all the decisions, it having been held, in at least one jurisdiction, that the same rule in this re- gard applies, whether the articles are removable because an- nexed for the purpose of trade, or because of a stipulation to that effect.! ^9 jt ^vas held in one case, indeed, that even though the lessee of a gas well was given the right to remove appliances "at 184 Pioneer Sav. & Loan Co. v. W. 162, to the effect that a right of Fuller, 57 Minn. 60, 58 N. W. 831. removal by agreement is not lost by 185 Trask v. Little, 182 Mass. 8, the expiration of the term. Knight 64 N. E. 206. V. Orchard, 92 Mo. App. 466, is to the isfi White V. Arndt, 1 Whart. (Pa.) effect that it is not lost by forfeiture 91; Haflick v. Stober, 11 Ohio St. of the term. 482. ^^^ Lewis v. Ocean Nav. & Pier Co., 187 See ante, at note 174. 125 N. Y. 341, 26 N. E. 301; Talbot 1S8 It is so decided In Broaddus v. v. Cruger, 151 N. Y. 117, 45 N. E. Smith, 121 Ala. 335, 26 So. 34, 77 Am. 364; Massachusetts Nat. Bank v. St. Rep. 61. And see Lake Superior Shinn, 18 App. Div. 276, 46 N. Y. Ship Canal & Iron Co. v. McCann, Supp. 329; Fitzgerald v. Anderson, 86 Mich. lOG, 48 N. W. 692, and 81 Wis. 341, 51 N. W. 554 «( dictum). Atkinson it Diron, 96 Mo. 588, 10 S. 1604 FIXTURES. § 243 any time, ' ' he could not remove them four years after the expira- tion of the lease, and five years and six months after the comple- tion of the well and the ascertainment of its unproductive char- acter.190 go it has been decided that, when the lease provided that the lessee's improvements should belong to him and might be removed during the last sixty days of the term, his right of removal was lost by his failure to remove within the time named.^^^ It has been decided that a clause authorizing removal "at the end of the term" enables the tenant to remove within a reason- able time after the end of the term,i92 though on the other hand it has been said that such a clause does not authorize a removal after the term.^^^ Such a provision has also been held to au- thorize removal before as well as at the end of the term,!^^ i^^t not after a re-entry by the landlord for breach of condition.i^^ 190 Shellar v. Shivers, 171 Pa. 569, Tenn. Ch. 576. But see Ex parte 33 Atl. 95. In Churchill v. More, Gould, 13 Q. B. Div. 454. The les- 4 Cal. App. 219, 88 Pac. 290, such see has the right during such time words were held to allow of removal of ingress and egress for the pur- over a year after abandonment of pose of removal (Davidson v. Crump the well. In Gartland v. Hickman, Mfg. Co., 99 Mich. 501, 58 N. W. 475), 56 W. Va. 75, 49 S. B. 14, 67 L. R. but no greater right (Caperton v. A. 694, it was held that a lessee ex- Stege, 91 Ky. 351, 15 S. W. 870, 16 pressly given the right of removal S. W. 84). "at any time" could remove fixtures las Darrah v. Baird, 101 Pa. 265, within a "reasonable time" after 272. the end of the lease. "* Alexander v. Touhy, 13 Kan. 191 Hughes v. Kershow. 42 Colo. 64. 210, 93 Pac. 1116, 15 L. R. A. (N. i95 Whipley v. Dewey, 8 Cal. 36. S.) 723. There it was said that, So the issue of a warrant in sum- upon the failure to remove the im- mary proceedings for nonpayment provements within the time named of rent has been regarded as term- they became "a part of the real es- inating the right of removal under ^g^^-g .. such a clause. Van Vleck v. "White, 192 Stansfield v. Borough of Ports- 66 App. Div. 14, 72 N. Y. Supp. 1026. mouth, 4 C. B. (N. S.) 120; Caper- But a right of removal "at any ton V. Stege, 91 Ky. 351, 15 S. W. time" was held to continue a reas- 870 16 S. W. 84; Davidson v. Crump onable time after enforcement of for- Mfg. Co., 99 Mich. 501, 58 N. W. 475; feiture for nonpayment of rent. Bodwell' Water Power Co. v. Old Gartland v. Hickman, 56 W. Va. 75, Town Elec. Co., 96 Me. 117, 51 Atl. 49 S. E. 14, 67 L. R. A. 694. 802; Smith v. Park, 31 Minn. 70, 16 A vote of the directors of a les- N. W. 4P0; Kuhlmann v. Meier. 7 Mo. see corporation to "sell out" was held App. 260; Cheatham v. Plinke, 1 not to be a "discontinuance" with- § 243 GRANTS OP RIGHT OF REMOVAL. 1QQ5 Regarding articles annexed under a stipnlafi for removal as remaining personalty, and so as not a part of the land, a for- feiture of the leasehold interest in the land will not deprive the tenant of the right of removal.i^s unless there is an express stipu- latioji that it shall have that effect, or unless such forfeiture brings the ease within the terms of a stipulation as to the time of removal. The rule, before referred to,!^'^ that the making of a new lease will destroy the tenant's right of removal, is of doubtful applica- tion, it would seem, when this right is based on an express stipu- lation, since viewing the article as retaining its character of per- sonalty belonging to the tenant, it would seem not to be subject to the operation of the new lease,i9s and, moreover, the lessee's continuance in possession by the owner's permission would ordinarily be presumed to be on the same terms as the original holding, except in so far as there is an express provisicn to the contrary,i99 and consequently he would still have the benefit of the provision for removal.200 There are, however, de- cisions to the effect that, if the lease is renewed, the tenant in a provision that the lessee should case of fixtures removable because have a year after "discontinuing and intended for trade purposes. In abandoning said business" vvithin O'Brien v. Mueller, 96 Md. 134, 53 which to remove buildings. Water- Atl. 663, it was held that where the man v. Clark, 58 Vt. 601, 2 Atl. 578. landlord sold to the tenant the fix- 196 Ex parte Gould, 13 Q. B. Div. tures on the premises at the time of 454; Scarth v. Ontario Power & Flat the lease, agreeing that the latter Co., 24 Ont. 446. should have the right to remove them, 197 See ante, § 242 g. a subsequent renewal of the lease did 19S It is so decided in McCarthy v. not affect this right of removal, the Trumacher, 108 Iowa, 2S4, 78 N. W. court apparently considering 'that 1104, 75 Am. St. Rep. 254, and Wright they were not a part of the realty V. Macdonnell, 88 Tex. 140, 30 S. and that consequently the renewal W. 907, and Hertzberg v. Witte, could not affect the right of removal 22 Tex. Civ. App. 320, 54 S. W. 921, 199 See ante, § 210 e. tend to support this view. In Kerr 200 To this effect, apparently, are v. Kingsbury, 39 Mich. 150, 33 Am. Clarke v. Rowland, 85 N. Y. '204; Rep. 362, the articles were removable Neiswanger v. Squier, 73 Mo. 192. by agreement, but the opinion of So where the extension was expres^ Cooley, J., lays no weight on this, ]y subject to the same terms and and does not suggest the possibility conditions. Young v. Consolidated that the rule in such case may be Imp. Co., 23 Utah, 586, 65 Pac. 720. different from that applicable in the 1606 FIXTURES. § 244 loses the benefit of a provision in the former lease authorizing the removal of fixtures.^*^^ As in the case when articles are removable because affixed for purposes of trade,202 if the landlord prevents the removal at the end of the term, or induces the tenant, by act or word, not to remove them, this is to be considered in determining the time within which the removal may be made,203 conceding that there is any limitation in this regard. § 244. Stipulations restricting rights of removal. a. General considerations. In discussing stipulations grant- ing rights of removal, it was stated that such a stipulation ordi- narily displaces the common-law rules as to the right of removal, so that the effect thereof may be to limit the right which the ten- ant would have in the absence of any stipulation. So regarded, a stipulation in terms granting rights of removal is not infre- quently of such character that it might be also classed under the head of stipulations restricting such rights. In addition, how- ever, to such stipulations, which in form undertake to grant rights of removal, though their actual effect may be to narrow such rights, clauses are quite frequently introduced which in terms de- prive the tenant of the right to remove annexations made by him. Such a clause, it has been said, should be strictly con- strued.2<^4 The mere fact that the lessee has covenanted to repair the premises or the buildings and erections thereon, or to yield them 201 Unz V. Price's Adm'r, 22 Ky. alterations, he agreeing to restore Law Rep. 791, 58 S. W. 705; Hayes v. the building to its "present" condi- Shultz 33 Misc. 137, 68 N. Y. tion, but the decision seems to be Supp. 340- Talbot v. Cruger, 151 N. independent of these provisions. y 117, 45 N. E. 364; Nieland v. 202 See ante, § 242 f. Mahnk'en, 89 App. Div. 4G3, 85 N. 203 Chalifoux v. Potter, 113 Ala. Y. Supp. 809. In Stephens v. Ely, 215, 21 So. 322; Cheatham v. Plinke, 162 N. Y. 79, 56 N. E. 499, it was 1 Tenn. Ch. 576. held that the right to take advantage 204 Fox v. Lynch, 71 N. J. Eq. 537, of a stipulation for removal, entered 64 Atl. 439. See, for the construc- into after the making of the first tion of language giving a right to lease, was lost when the lessee took remove improvements upon payment a renewal lease. The latter lease therefor as precluding removal with- provided that the lessee should re- out such payment, Bro^Ti v. Ward, turn the premises in good condition, 119 Iowa, 604, 93 N. W. 587. and authorized the lessee to make J 244 STIPULATIONS RESTRICTING REMOVAL. 1607 up in repair at the end of the term, should not, it seems, preclude the tenant from removing fixtures which he is otherwise entitled to remove, and there are decisions to that effect.205 Such a cove- nant would appear to be ordinarily intended to assure the return of the premises in the condition in which they were at the time of the lease, rather than to secure to the landlord additions there- after made by the tenant. The covenant may, however, in the particular case, be susceptible of a different construction.206 Tliat the removal would involve an injury to the premises has been regarded as rendering applicable a covenant to deliver up the premises in as good condition as at the time of the lease, so as to preclude the removal.-"^ That the lessee is given an option to purchase the premises at a price named does not prevent the removal by the tenant of fix- tures annexed by him which are ordinarily removable,208 though if the lessee actually agrees to purchase the premises, and subse- quently annexes fixtures, he is, it seems, to be regarded as making the annexation in the capacity of purchaser and not of tenant, and has not the right of removal.209 And when the lease, while giving the lessee a right to purchase the premises at a certain price, provides that, should he fail to do so, the fixtures shall go to the lessor, the fact that the lessee agrees to purchase the premises does not entitle him to the fixtures if he makes default in payment of the price.^i^* That the landlord is, by the terms of the lease, required either to grant an extension of the term or to take the fixtures at a valuation, and that he does grant the extension, does not, it has been decided, affect the right of the tenant to remove the trade fixtures at the end of the extended term.211 Nor does the fact 205 Such is the view asserted in Thresher v. East London Water- Brown V. Reno Elec. Light & Power works Co., 2 Barn. & C. 608. Co , 55 Fed. 229; Deeble v. McMullen, 207 Murray v. Moross, 27 Mich. 203. 8 i'r. C. L. 355'; Mason v. Fenn, 13 208 Brown v. Reno Elec. Light & 111 525- Fox v'. Lynch, 71 N. J. Eq. Power Co., 55 Fed. 229; Holbrook v. 537 64'Atl. 439. In Argles v. Mc- Chamberlin, 116 Mass. 155, 17 Am. Math, 23 Ont. App. 44, it is so de- Rep. 146. cided in reference to a statutory cov- 209 Perkins v. Swank, 43 Miss. 349. enant to leave in repair "with all 210 Merritt v. Judd, 14 Cal. 59. buildings, erections and fixtures." 211 Howe's Cave Ass'n v. Houck, 66 206 See cases referred to in Ewell, Hun, 205, 21 N. Y. Supp. 40; Id., 141 Fixtures (2d Ed.) 233 et seq.; N. Y. GOG, 36 N. E. 740. 1608 FIXTURES. § 244 that the lessor has agreed to purchase the tenant's fixtures have that effect, it seems, if he does not offer to comply with the agree- ment.212 A pro\asion that alterations and improvements should belong to the lessor "at his option" was held not to require a notice of the exercise of the option to be given at the time that the altera- tions and improvements were made, and a notice to that effect given four weeks before the end of the term v.^as regarded as sufficient.-i^ b. Stipulations as to "fixtures." Sometimes the lease stipu- lates that "fixtures, "214 or fixtures of a certain character,^!^ annexed by the tenant, shall go to the landlord at the expira- tion of the term. The scope of the word "fixtures," as used in such a stipulation, may be limited by the context. Thus, in a covenant by the lessee to deliver up to the lessor at the end of the term certain classes of articles named, "and other fixtures and articles in the nature of fixtures, which should, at any time during the said term, be fixed or fastened to the said demised premises, or be thereto belonging," the word was construed, by reference to the articles specifically named, not to include fixtures ordinarily removable by the tenant.^i** And in a stipulation that the tenant should not remove "any repairs, improvements, addi- tions or fixtures," the word "fixtures" was held to apply only to permanent ameliorations such as were covered by the other words used, and not to include trade fixtures.^i'^ The word as used 212 Pawtucket Inst, for Savings v. On the authority of this case, it was Almy, 13 R. I. 68. Here it was held held in Sumner v. Bromilow, 34 Law that trover could be brought after J. Q. B. 130, that a covenant by the the term by a person claiming un- lessee to deliver up at the end of der the tenant, though the machinery the term all the "fixed materials" was to go to the lessor at the end in or about the premises, save and of the term, he paying to the lessee except "the salt pans and other mov- the value of any machinery added able articles," bound him to leave by the latter. on the premises only such fixtures 213 Isman v. Hanscom, 217 Pa. 133, as belonged to the landlord at the 6ft Atl. 329. time of the lease, and not such arti- •21-i See e. g., Watson v. Lane, 11 cles as a tenant is ordinarily en- Exch. 769. titled to remove. 215 See Porter v. Drew, 5 C. P. Div. 217 Cubbins v. Ayres, 72 Tenn. (4 143. Lea) 329. 216 Bishop V. Elliott, 11 Exch. 113. §244 STIPULATIONS RESTRICTING REMOVAL. 1609 in such a covenant would not, ordinarily at least, include articles not actually annexed to the soil.-^^ , e. Stipulations as to "improvements." A clause giving to the lessor all "improvements" placed by the tenant on the premises has been regarded as including every addition, alteration, erec- tion or annexation made by the lessee, "improvements" being said to be a more comprehensive word than " fixtures, "^i^ In England a provision that the tenant shall yield up in repair, at the end of the term, the premises, together with all improvements and erections, has been regarded as including, in the particular case, a greenhouse,--'^ a verandah,--^ and a plate glass front sub- stituted for a shop window, though not fastened except by wedges."-^ I3ut a covenant to yield up the land "with all build- ings and erections thereon in good repair and condition," with 218 Ex parte Morrow, 1 Lowell. 385, Fed. Cas. No. 9,850. 219 French v. City of New York, 16 How. Pr. (N. Y.) 22U, 29 Barb. 363. The court further says: "Where tlie parties say that all improvements which may be placed on the premises shall belong to the lessors, it is diffi- cult to say what, if anything, would be excluded," and the covenant was held to cover a number of things in no way annexed. In Lesser v. Ray- ner, 21 Misc. C66, 47 N. Y. Supp. 1102, the language of this case was ap- proved, and it was held that a stipu- lation that all "improvements:" should be delivered up to the land- lord rendered stalls and partitions, affixed iu sheds already on the prem- ises by screws and cleats, irremov- able by the tenant. Mining machinery was held to be Included in a covenant, in a lease of mining land, that the landlord should have "improvements that may be put on the ground for work- ing the lead" (Merritt v. Judd, 11 Cal. 59), and a covenant that the tenant would leave the premises at the end of the term in as good con- dition "as they may be made by improvements" was held to preclude the removal of buildings erected by him (Carver v. Gough, 153 Pa. 225, 25 Atl. 1124). A boiler in a brewery was held to be within a clause pro- viding that "any alterations and im- provements" should belong to the landlord (Agnew v. Y/hitney, 10 rhila. [Pa.] 77, 30 Leg. Int. 312); and a floor put in a skating rink was also regarded a.s an "improvement" (Harris v. Kelly [Pa.] 13 Atl. 523). In Isman v. Hanscom, 217 Pa. 133, 66 Atl. 329, it was decided that a clause, in a lease for restaurant pur- poses, giving the lessor "ail altera- tions, additions, and improvements," "except movable furniture," gave him dumb waiters, wail decorations, ovens, toilet rooms, electric light ap- paratus, and inlaid floors. 220 West V. Blakeway, 2 Man. & G. 729. 221 Penry v. Brown, 2 Starkie, 403 ("erections, buildings and improve- ments"). 222 Haslett v. Burt, 18 C. B. 893 (ditto). 2510 FIXTURES. § 244 a proviso that the lessees ''shall be at liberty during their tenancy to remove all such improvements * * * as shall be capable of removal without injury to the land itself," was held to allow the removal of a brick building placed on stone founda- tions, these latter being left undisturbed.223 In another juris- dictioa, however, the word was apparently regarded' as equiva- lent to "fixtures," it being said that, in order to come within such a clause, the thing in question must have been actually annexed with an intention to make it a part of the realty.—^ In one case it was regarded as not including trade fixtures, con- sisting of counters and the like in an hotel.-^s The word may obviously be limited in scope by the other language of the in- strument.^-^ d. "Erections" and "additions." It has been held that a covenant by the lessee to deliver up at the end of the term "all future erections or additions" to or upon the premises did not 223 London & South African Ex- tached to the huilding. Parker v. ploration Co. v. De Beers Consol. Wulstein, 48 N. J. Eq. 94, 21 Atl. Mines [1895] App. Cas. 451. 623, 27 Am. St. Rep. 462. In Martyr v. Bradley, 9 Bing. 24, 225 Cubbins v. Ayres, 72 Tenn. (4 it was held that a covenant to leave, Lea) 329. It was there held that a at the end of the term, the water stipulation against the removal of mill leased, "with all fixtures, fast- any "repairs, improvements, addl- enings and improvements, during the tions or fixtures" did not apply to demise, fixed fastened or set up in or trade fixtures consisting of a bar upon the premises," included new room counter and shelving, office mill stones set up by the lessee dur- counter, and safe, all in a hotel on ing the term. the leased premises. 224 Ames V. Trenton Brew. Co., 58 226 in Hey v. Bruner, 61 Pa. 87, N. J. Eq. 309, 38 Atl. 858; Id., 57 N. there v^'as a covenant by the lessees J Eq. 347, 45 Atl. 1090 (bar counter "to make alterations, additions and and beer pump in saloon not "im- iniprovements of a permanent char- provements"). In this same state, acter," according to certain specifl- however, it was held that a provision cations, to an amount named, and that "all improvements of the build- to introduce machinery necessary ing" should belong to the lessor in- for their business, "the permanent eluded shelves nailed to boards fast- additions and improvements to re- ened to the wall and resting on coun- main on the premises" and "to De- ters not fastened to the wall or floor, long to the" landlord, and it was a furnace with hot air flues extend- held that the machinery affixed by ing to holes cut in the floor, and the tenant did not go to the land- ownings over the windows, placed lord. by the lessee on hooks already at- § 244 STIPULATIONS RESTRICTING REMOVAL. 1611 preclude the removal of trade fixtures, but was to be confined to new buildings erected, or old buildings added to, during the term.227 And a provision that any addition or alteration to a certain frame building on the premises should belong to the les- sor was construed as not applying to a brick engine house, not connected with the building except by belts and shafting, trans- mitting power to machinery in the building.^ss g^t it has also been decided that a covenant by the lessee to yield up, at the end of the term, all erections and buildings then erected or built or that might thereafter be erected or built, included buildings erected for purposes of trade.229 • e. "Alterations." Occasionally the word "alterations" is found in a stipulation of this character, either by itself or in con- nection with "improvements," or other word of the same gen- eral cliaracter. A stipulation against the removal of alteratioais and improvements has been regarded as including a boiler an- nexed by the tenant of a brewery,23o and also wainscot, ceil- ing and floors placed in a saloon.^si f. Stipulated improvements by tsnant. A provision in the lease that the lessee shall make improvements of a certain char- acter is ordinarily construed as precluding him from removing them at the end of the term, it being presumed that such a pro- vision is intended to benefit the lessor, and no such benefit ac- cruing to him if the improvements are removable.^^^ 227 Holbrook v. Chamberlin, 116 that a provision that the lessee Mass. 115, 17 Am. Rep. 146. This should not make alterations, with- case was followed in Liebe v. Nieo- out the lessor's consent, applying only lai, 30 Or. 364, 48 Pac. 172. And to substantial alterations, did not see Cubbins v. Ayres, 72 Tenn. (4 affect the right of the tenant to Lea) 329, ante, note 225. remove as a trade fixture an engine 228 Smith V. Whitney, 147 Mass. substituted by him for an old en- 479, 18 N. E. 229. gine on the premises at the time of 229 Naylor v. Collinge, 1 Taunt. 19. the lease, the old engine and the 230 Agnew v. Whitney, 10 Phila. building being left intact. (Pa.) 77, 30 Leg. Int. 312. 232 Deane v. Hutchinson, 40 N. J. 231 Center v. Everard, 19 Misc. 156, Eq. 83, 2 Atl. 292; City of New York 43 N. Y. Supp. 416. See also, as to v. Hamilton Fire Ins. Co., 23 N. Y. the construction of a particular stip- Super. Ct. (10 Bosw.) 537; City of ulation, Smith v. Whitney, 147 New York v. Brooklyn Fire Ins. Co., Mass. 479, 18 N. E. 229. 41 Barb. (N. Y.) 231; Boyd v. Doug- In Andrews v. Day Button Co., 132 lass, 72 Vt. 449, 48 Atl. 638, 52 L. N. Y. 348, 30 N. E. 831, it was held R. A. 919; Pierce v. Grice, 92 Va. 1612 FIXTURES. § 244 g. Title to articles during term. "Whore it is stipulated tlsat articles, or certain classes of articles, ordinarily removable by the tenant, shall belong to the landlord upon the expiration ot the term, the latter, it seems, acquires a vested interest in sncli articles immediately on their annexation. So it has been held that he has an interest which he may transfer.^s-"' The t'^nant cannot remove such articles before the expiration of the terra,-''^ nor can he affect the landlord's rights by undertaking to transfer the fixtures to a third person.^'''!^ The removal of tilings annexed or erected under such a stipulation has occasionally been regarded as waste,-"'' but in one ease it was said that for such a removal the reuK-dy is by an action on the contract rather than by an ac- tion for waste.-'^^ The lessee, it has been decided, is under no 763, 24 S E. 392; Tunis Lumbor Co. V. R. G. Dennis Lumber Co., 97 Va. G82, 34 S. E. 613. In accordance with the above rule, apparently, is Ozark v. Adams, 73 Ark. 227, 83 S. W. 920, where it was held that one who procured a lc:ise of land for ninety-one years at a nominal rent, on his undertaking to erect and op- erate a manufactory thereon, could not remove any erections or annexa- tions made by him in carrying out the agreement. The decision is, however, in terms, on the theory that the circumstances and the length of the lease showed an inten- tion on his part not to remove them. It was perhaps on this theory that it was held in Gett v. McManus, 47 Cal. 56, that a brick house erected by the tenant belonged to the land- lord, the lease providing that the tenant should pay for all improve- ments and surrender the possession of the premises at the end of the term. 233 Thrall v. Hill, 110 Mass. 328. 234 Loeser v. Liebmann, 137 N. Y. 163, 33 N. E. 147, 20 L. R. A. 752. There it was said that changes and substitutions in good faith, in the ordinary course, were permissible. 235 Podlech v, Phelan, 13 Utah. 333, 44 Pac. 838. In Forbes v. Wil- liams, 46 N. C. (1 Jones Law) 393. it was held that if the lessee, hav- ing agreed not to remove any build- ings until the rent was paid, sold a building to a third person, and be- fore the rent was paid such third person removed it, the latter was liable to the les.=or in damages to the amount of the overdue rent, while the lessee might be held in damages for the breach of his cov- enant. 236 Bass V. Metropolitan West Side El. R. Co., 27 C. C. A. 147, 82 Fed. 857, 39 L. R. A. 711, where an in- junction was issued against waste by the tenant in removing part of a building erected by him under such a stipulation. In Cook v. Champlain Transp. Co., 1 Denio (N. Y.) 91, it was held that the tenant could recover against a third party negligently injuring things so an- nexed by the tenant, since he, the tenant, would be liable to the land- lord as for waste in not preventing such injuries by the third person. Ante, § 110. 237 Wall V. Hinds, 70 Mass. (4 Gray) 256, 64 Am. Dec. 64. I 244 STIPULATIOi:S RESTRICTING REMOVAL. 1613 oblii-ation in such a case to replace the fixtures, for the benefit of the landlord, if destroyed by fire.^^s Though the tenant is precluded by his agreement from removing the fixture, he has an interest therein to the same extent as in the land itself, which is the subject of mortgage by him.^^a If the lease merely gives the fixtures to the landlord upon the happening of a particular contingency,-'^ or merely a right to take them at a valuation named or to be named,^'^ he acquires, it seems, no title thereto until the contingency happens or pay- ment is made. Occasionally the lease provides that the fixtures annexed by the tenant shall become the property of the landlord in case the tenant makes default in the payment of rent or otherwise. Sue)' a stipulation will, it seems, in case it is conditioned on the non- payment of rent, be regarded in equity merely as creating m favor of the landlord a lien upon the fixtures for the amount oi" the rent.242 A clause providing that if the tenant makes default in certain respects the landlord shall have the right to re-enter, and to seiz the fixtures annexed by him, has been regarded as negativing any right in the tenant to remove the fixtures daring the term.^'*'^ 238Cleinson v. Trammell. 34 111. Mont. 160. 27 Pac. 408. Compare App 414. a°te, note 212. 230 French v. Proscott, 61 N. H. 27. ^42 Rooney v. Crary. 8 111. App. (8 240Lemar v. Miles. 4 Watts (Pa.) Bradw.) 329; Lewis v. Ocean Nav. i.emar v. i . p.^^ ^^ ^^g n. Y. 341. 26 N. E. oof) 2«Seitzingerv.Marsden.2Penny. 301. But at law. the landlord is en (Pa) 463. But it was held that, titled to take possession of the fix- Ih" re the lease provided that a tures upon he tenants default. . T. ^^r.^ H,r +vio iocQP« Stamps V. Cooley, 91 N. C. 316. hull dine to be erected by the lesse'? . . , , Should remain on the land, the lessor That the lease contaxned a clause payin<^ the cost of the materials, and mortgaging all bmldmgs to be erec - the lease also provided for a forfel - ^^^ ^^^^^ ^^^^^ ^^^ ^^^ ^^^ ^^^ ure of the term on a default in rent. ^^^.^^.^^^ ^^^^,^^ ^^ tl,^ leg.ee had the building became a part of the ^^^ transferred by the lessee to a realty and could not, after a default, ^^.^^ person, the lessor renewed tht= be levied upon as personalty be- mortgage, was held to estop the lat- longing to the lessee, although the ^gj. f^om claiming the buildings, materials had not been paid for by piatto v. Gettleman, 85 Wis. 105. 55 the lessor, rent being due to an n. W. 167. amount exceeding the value of the 243 Dumergue v. Rumsey, 2 Hurl, materials. Switzer v. Allen, 11 & C. 777. 2614 FIXTURES. § 245 § 245. Custom afFccting rights of removal. The rights of a tenant under a lease as to the removal of articles and structures annexed by him may be controlled by a local custom in this regard.2** This can occur, however, only in the absence of an express agreement bearing on the subject.^^* § 246. Rights of removal as against person other than lessor. a. Purchaser subsequent to annexation. The right to remove a trade fixture may be asserted as against a transferee of the reversion, taking with knowledge that the fixture was annexed by the tenant,'-'-'" and the tenant has likewise been regarded as entitled to assert a right of removal under a stipulation of the lease, as against such a sub.sequent purchaser, taking with notice of the stipulation.247 The cases to the above effect, in stating that the tenant has a right of removal as against a subsequent purcha,ser with notice of the tenant's rights, would seem to imply that he has no such right as against a purcha.ser without notice. In a few states it is apparently the law that where, by agreement, one has the right to remove articles annexed by him to another's land, he may exercise such right as against a purchaser of the land even though the latter is without notice of the agreement,^^^ and presumably, in those states, the right of a tenant under a lease to remove fixtures, as against a purchaser of the land, would be independent of the question of notice.^^a But conceding that, as 244 Van Ness v. Pacard, 27 U. S. 247 First Nat. Bank v. Adam, 138 (2 Pet.) 137; Merritt v. Judd, 14 111. 483, 28 N. E. 955; Adams v. Cal. 59; Hanrahan v. O'Reilly, 102 Tully. 164 Ind. 292, 73 N. E. 595; Mass. 201; Weathersby v. Sleeper, 42 Wilgvis v. Gettings, 21 Iowa, 177; Miss 732, 2 Am. Rep. 649; Thomas Jones v. Cooley, 106 Iowa, 165, 76 V. Davis, 76 Mo. 72, 43 Am. Rep. N. W. 652; Morris v. French, 106 756- Teaff v. Hewitt, 1 Ohio St. 511. Mass. 326; Dubois v. Kelly, 10 Barb. 59 Am. Dec. 634; Keogh v. Daniell, (N. Y.) 496; Hertzberg v. Witte, 22 12 Wis. 163; Davis v. Jones, 2 Barn. Tex. Civ. App. 320. 54 S. W. 921. & Aid. 165; Culling v. Tuffnal, Bui- 248 See cases referred to in Bron- ler's Nisi Prius. 34. son, Fixtures, 158; 13 Am. & Eng. 245 Martyr v. Bradley. 9 Bing. 24; Enc. Law, 628, C29. Boyd V. Shorrock, L. R. 5 Eq. 72; 249 Globe Marble Mills Co. v. Roxburghe v. Roberton, 2 Bligh, Quinn, 76 N. Y. 23, 32 Am. Rep. 156- notes to Wigglesworth v. Dalli- 259, is apparently to this effect. See Fon' 1 Smith's Leading Cases (11th the cases stated post, note 254. And Ed.) 545. s^®' ^1^°' Hanrahan v. O'Reilly, 102 246 Davis V. Bnffum, 51 .Me. 160; Mass. 201, post, note 251. Wing V. Gray, 36 Vt. 26L §246 REMOVAL AS AGAINST THIRD PERSON. 1615 has occasionally been expressly decided, a purchaser should not be affected by a right of removal in a tenant which is unknown to him,25o it seems that in almost every case the purchaser should be regarded as chargeable, by the fact of the latter 's possession of the land, with notice of his rights in this regard as well as of the character and duration of the lease. That is, a purchaser of land in the possession of a tenant should be required to ascer- tain, by inquiry of the tenant or otherwise, whether the improve- ments thereon are subject to a right of removal in the tenant. Otherwise, the tenant's common-law right to remove trade or ornamental fixtures would be of a most precarious character, as being subject to annulment at any time, without his consent, by 250 To this effect is Landon v. Piatt, cised against the lessee's transferee. 34 Conn. 517; Dostal v. McCaddon, In Smyth v. Stoddard, 203 111. 424, 35 Iowa, 318; Canadian Bank of 67 N. E. 980, supra, the lease pro- Commerce V. Lewis, 12 B. C. 398. vided that the lessee should have the In Trask v. Little, 182 Mass. 8, 64 N. right to remove erections at the end E. 206, it was decided that a sub- of the term or receive compensation sequent lessee, taking without no- therefor, and it was held that a sale tice of an oral agreement by the of the land by the lessor without owner allowing a prior lessee to re- excepting the erections involved a move his fixtures, could maintain conversion of the barn, entitling tho an injunction against removal un- lessee to recover the value thereof der such agreement. In this case from the lessor. The same result the first lessee had relinquished pos- might perhaps have been attained session before the second lease was by re':'arding the sale as an election made, and so the latter could not to pay compensation rather than to have been charged with notice from allow removal, making the lessor possession, but the court does not liable for the value. Adopting the refer to this. That the tenant loses theory that an article removable by the right of removal as against a agreement is personalty (ante, at purchaser without notice is appar- note 174), the sale of the land would ently assumed in occasional deci- seem not to transfer the erection, sions that a conveyance by the les- but to leave the title thereto un- sor, without excepting the fixtures, changed. constitutes a conversion of the fix- In Union Cent. Life Ins. Co. v. tures as against the tenant. See Tillery, 152 Mo. 421, 54 S. W. 220, Bircher v. Parker, 43 Mo. 443; 75 Am. St. Rep. 480, it was held Smyth v. Stoddard, 203 111. 424, 67 that, as against a purchaser under a N. E. 980, 96 Am. St. Rep. 314. deed of trust given by the landlord That such a conveyance does not to secure a debt, an article annexed constitute a conversion is well stat- by the tenant subsequently to the ed in Davis v. Buffum, 51 Me. 160; making of such deed, under a stip- Walsh V. Sichler, 20 Mo. App. 374, ulation allowing its removal, could and to that effect are the cnse;^ in not be removed, the purchaser hav- which it is assumed or decided that ing taken without notice of the the right of removal may be exer- agreement. 1616 FIXTURES. §246 the making of a conveyance by the landlord to one without actual notice of the tenant's rights.^^^ The tenant will no doubt lose his right of removal, as against the lessor's transferee, by reason of any lapse of time or other circumstances, which would have deprived him of the right had the reversion remained in the original lessor.-^^ b. Person claiming under mortgage subsequent to annexation. As against one to whom a mortgage of the reversion is made after the tenant's annexation of the article in question, the tenant has, it seems clear, the same right of removal as he would have against a subsequent purchaser, that is, he can remove the article, pro- 2B1 This view is stated by Aldis, J., in Wing v. Gray, 36 Vt. 261, as iollows: "His (the tenant's) pos- session was notice to the plaintiff (the purchaser) so as to put him on inquiry as to the right by which the defendant possessed and his re- lation to the grantor; and the plain- tiff must be deemed to be affected with knowledge of the facts he would have ascertained upon In- quiry, that is, that the defendant was a-tenant having the right to carry on the farm for a year. This right he was not bound to put on the record, and his landlord by selling the land could not defeat any rights he had as tenant. The de- fendant was not bound to know of, or search the records for, a subse- quent conveyance from his landlord to a third person, or to omit the ex- ercise of any right granted by the lease because the landlord might thereafter sell the farm. A subse- quent grantee would take the land subject to the rights of the tenant under the lease. The lease so far as it went was as operative as the subsequent deed, and be- ing prior in time and accompanied by possession, all the tenant's rights as against the landlord continued as against his landlord's grantee." The same view is adopted in Royce v. Latshaw, 15 Colo. App. 420, 62 Pac. 627 (see post, note 253), and to some extent, apparently, in Du- bois v. Kelly, 10 Barb. (N. Y.) 496. In Hanrahan v. O'Reilly, 102 Mass. 201, the tenant was allowed to re- move trade fixtures as against his landlord's transferee, and it was apparently regarded as immaterial that the transferee had no actual notice of the tenant's rights. The view that the tenant's possession is constructive notice of his rights as to fixtures is, however, perhaps, op- posed to Prince v. Case, 10 Conn. 375, 27 Am. Dec. 675, and the earlier Vermont case of Powers v. Denni- son, 30 Vt. 752, holding that the pos- session of one who has built on an- other's land with an express agree- ment for the right of removal is not notice to a purchaser of the land In regard to his rights. 2"'- Bliss V. Whitney, 91 Mass. (9 Al- len) 114, 85 Am. Dec. 745. In Davis V. Carsley Mfg. Co., 112 111. App. 112, it was held that one claiming under a contract of purchase from the les- sor, though a conveyance had not been made to him, could restrain by injunction a removal by a tenant who had lost the right by taking a new lease. § 246 REMOVAL AS AGAINST THIRD PERSON. 1617 vided the mortgagee took with notice, actual or constructive, of the tenant's rights in this regardv^^s And he would, as against one claiming under a sale at foreclosure of the mortgage, have the same rights, no doubt, as against the mortgagee himself.^^^ c. Person claiming under mortgage prior to annexation. The question of the right of the tenant to remove a fixture, as against a mortgage made by the owner of the land prior to the annexa- tion, may arise under two distinct states of fact, that is, the lease under which the tenant holds may have been made before, or it may have been made after, the mortgage. When the lease was made before the mortgage, it seems that the tenant's riabts of removal, whether existing ])y reason of a stipulation to that effect, or by reason of the character of the article annexed, as being either a trade, ornamental, or agricultural fixture, cannot be affected by the fact that the landlord has chosen subsequently to make a mortgage on the land. One who takes a mortgage takes it subject to any outstanding lease of which he has actual or constructive notice,^^^ ^^^ gQ^ it seems, he must take it subject to any existing stipulations for removal which appear in the lease itself, and also subject to the recognized right of a tenant to annex and remove at pleasure certain classes of articles.^^o 253 In Royce v. Latshaw, 15 Colo, of the tenant's rights, but no ref- App. 420, 02 Pac. 627, it is said that crence to the question of notice Is it is immaterial whether the mort- marie in the opinion. In New York, gagee had notice that the article was apparently, a subsequent purchaser a trade fixture, since he could not or mortgagee of land takes subject acquire any interest other than what to a right of removal by agreement the mcrt,fi:agor had, and "beside?, in a third person, irrespective of the very character of the structure, notice (Mott v. Palmer, 1 N. Y. [1 and of the business carried on there Comst.] 564, 49 Am. Dec. 359; Ford in, were sufficient to put him on v. Cobb, 20 N. Y. 344; Godard v. inquiry." Gould, 14 Barb. [N. Y.] 662; Kerby 254 Bartlett v. Haviland, 92 Mich. v. Clapp, 15 App. Div. 37, 44 N. Y. 552, 52 N. W. 1008, is apparently to Supp. 116), and the case referred to this effect. In Globe Marble Mills Co. seems to accord with this view. V. Quinn. 76 N. Y. 23, 32 Am. Rep. 2Rr. See ante, § 146 a, at notes 1-5. 259, it was held that, as against one 25« In Union Terminal Co. v. Wil- purchasing at foreclosure of a mort- mar & S. F. R. Co., 116 Iowa, 392, gage by the landlord, made after the 90 N. W. 92, it was held that a re- annexation, the tenant could assert ceiver who rebuilt a trade fixture his right of removal as if against with the proceeds of insurance, up- the lessor. It is stated that, at the on its destruction by fire, could re- foreclosure sale, notice was given move it as against one claiming un- L. and Ten. 102. 1618 FIXTURES. § 246 Otherwise a tenant, after taking a lease with the expectation of placing removable fixtures thereon, could be at any time deprived of the right so to do by the making of a mortgage by the lessor. The mortgagee should not, however, it seems, be affected by any stipulation as to removal made after the taking of his mortgage. In case the lease was made after the mortgage, the question whether the tenant annexing an article should be allowed to re- move it as agai.ust the mortgagee might, it seems, depend to some extent on the legal character of a mortgage in that jurisdiction. If the mortgage constitutes merely a lien, the mortgagor, retain- ing the legal title, has the right to make a lease, which Is valid as against the mortgagee, in so far as it does .not affect his secur- ity, and a tenant holding under the lease would have the same right to annex and remove fixtures as if no mortgage had been given, provided only that their removal does not render the prem- ises less valuable as a security than they were at the date of the mortgage. -^^ But this view, that if the mortgage creates merely a lien the mortgagor's tenant has the right of removal, is not in accord with a number of decisions, rendered in states where such is the effect of a mortgage, that a mortgagor cannot remove arti- cles annexed by himself, ^-^^ since, it would seem, the mortgagor's der a mortgage subsequent to the other person to annex and remove lease. fixtures as again?t a prior mortgagee 257 In Pioneer Sav. & Loan Co. v. of the land, would seem to be ad- Fuller, 57 Minn. 60, 58 N. W. 831, it verse to his right to enable a tenant was held that the mortgagor might, to do so, although in that state a during the year of redemption after mortgagee has merely a lien. Com- foreclosure, agree with his lessee pare Sprague Nat. Bank v. Erie R. that an article to be atfixed by the Co., 22 App. Div. 526, 48 N. Y. Supp. latter might be removed by him. 65; Bernheimer v. Adams, 70 App. The lease was subsequent to the Div. 114, 75 N. Y. Supp. 93, to the mortgage, and indeed subsequent to effect that the mortgagor's tenant the foreclosure sale, but the court has the right of removal, makes no reference to this fact. In 25s gee e. g., Seedhouse v. Brow- Ferris V. Quimby, 41 Mich. 202, 2 ard, 34 Fla. 509, 16 So. 425; Cun- N. W. 9, the tenant's right to re- ningham v. Cureton, 96 Ga. 489, 23 move an article as against a subse- S. E. 420; Bowen v. Wood, 35 Ind. quent mortgagee seems to be based 268; Ottumwa Woolen Mill Co. v. on the theory that in that case the Hawley, 44 Iowa, 57, 24 Am. Rep. article did not become part of the 719; Mutual Ben. Life Ins. Co. v. realty. The decision in McFadden Huntington, 57 Kan. 744, 48 Pac. 19; v. Allen, 134 N. Y. 489, 32 N. E. 21, Dutro v. Kennedy, 9 Mont. 101, 22 19 L. R. A. 446, to the effect that Pac. 763. a mortgagor cannot authorize an- § 246 REMOVAL AS AGAINST THIRD PERSON. 1619 tenant can have no greater rights as to removal than the mort- gagor Conceding that a tenant holding under a lease made by the mortgagor may, in jurisdictions where the mortgagee has a hen only remove articles annexed by him so long as his right ot pos- sessi'on continues, the question arises of the effect of a orec osure of the mortgage upon this right of removal. Since a foreclosure sale vests the title to the premises in the purchaser as of the date of the mortgage, free from the operation of any conveyances made or incumbrances imposed by the mortgagor after that date 250 any rights by reason of a subsequent lease would seem immediately to become nonexistent as to him, and among such ri-hts would be the tenant's right to remove fixtures. As regards th'; subsequent lessee, the purchaser at foreclosure acquirers a paramount title, and the tenant has no more rights as against him than as n<-ainst anv other holder of a paramount title. In jurisdictions where the common-law conception of a mort- gac^e as a convevance of the legal title to the mortgagee is still ret'lined, a subsequent lease by the mortgagor is a nullity as against the mortgagee,2ci and consequently it would seem ques- tionable whether the mortgagor could, by making a lease, enable another to annex and remove articles as against the mortgagee. The view that he cannot do so would seem to be necessarily adopted in those jurisdictions in which tlie courts hold that a mortgagor of land has no power, though remaining in possession, to make an agreement with a third person, such as the vendor of a chattel, by which a chattel annexed shall remain the property of such person.2«2 in one of such jurisdictions it has accord- 2.0 2 Jones. Mortgages. | 1654. 32 N. E. 21, 19 L. R. A. 446. supra. 260 See ante. § 73 c. But there are note 257. , . . „ i„ tvie Tsjpw York in- 26i See ante. § 16 o. «..t th^t ac? against a purchaser Bay State Iron Co., 97 Mass. z/3. f .Closure "e .enant uo.er a "-sher v Hayes^l5^ Mass .2S ^5 ?" R CO 4 APP Div. 526. 48 N. Warren Co. v. Barter, 110 Wis. 80, f Lpp 65-'Bet:. elmer v. Adams. 85 N. W. 698. 53 U R. A. 60. 84 Am. I fpp Dit 114. 75 N. Y. Supp. 93. St. Rep. 867, and Eng and (see "■hete ca=es appear inconsistent with cases cited intra, note 264). This McFadSnv AUen, 134 N. Y. 489, view is apparently adopted In New 1G20 FIXTURES. § 246 in^ly been held that the mortgagee's rights are superior to those of a subsequent lessee annexing a trade fixture, -'^•^ though in another there is a contrary decision."*^* In those jurisdictions in which, though a mortgagee has the legal title, an agreement by the mortgagor with a third person, upon the annexation of a chattel, that he may remove it, is re- garded as effective as against the mortgagee,-^^ a mortgagor might perhaps be regarded as empowered to confer on another the same i)rivilege of removing articles annexed by making a lease to such other. The removal is no more injurious to the mortgagee in the latter case than in the former. There are occa- sional decisions in accordance with this view,-*^*^ but it is some- what difficult to reconcile tliis position with the numerous deci- sions that a mortgagor cannot himself remove annexations which York, fhough there a mortgage ere- unr!cr a mortgage made siibsequent ates merely a lion. McFadden v. Al- to the lease, authorize the lessee to len, 134 N. Y. 489, 32 N. E. 21, 19 L. remove fixtures after the latter's R. A. 446. relinquishm'^nt of possession at the 203 Lynde v. Rowe, 94 Mass. (12 end of the term. Allen) 100. It was there said that =05 As in Alabama (Warren v. Lid- "the mortgagor cannot create a ten- dell, 110 Ala. 232, 20 So. 89), New ancy after the execution of the mort- Jersey (Campbell v. Roddy, 44 N. J. gage, which will be valid against Eq. 244, 14 Atl. 279, 6 Am. St. Rep. the mortgagee, unless the mortgagee SS9), Pennsylvania (Hill v. Sewald, choo?es to recognize the tenant as 53 Pa. 271, 91 Am. Dec. 209), and such." Vermont (Davenport v. Shants, 43 204 Sanders v. Davis, 15 Q. B. DIv. Vt. 546; Buzzell v. Cummings, CI Vt. 218. This case, although approved 213. 18 Atl. 93). in Gough v. Wood [1894] 1 Q. B. 713, zrg Broaddus v. Smith, 121 Ala. seems clearly inconsistent with the 335, 26 So. 34, 77 Am. St. Rep. 61; later cases of Hobson v. Gorringe Paine v. McDowell, 71 Vt. 28, 41 Atl. [1897] 1 Ch. 183, and Rej'nolds v. 1042. In Belvin v. Raleigh Paper Ashby [1903] 1 K. B. 87, in which Co., 123 N. C. 138, 31 S. E. 655, it it is held that the mortgagor has was held that the fixtures were re- no authority to agree with a third movable as against a prior mort- person that an article to be annexed gagee of the land, even though the by him shall be removable, as lessee had transferred them to the against the mortgagee who there- mortgagor, the latter, as a part of after enters into possession. In the same transaction, having trans- Thomas V. Jennings, 66 Law J. Q. ferred them to a trustee to secure B. 5, it was held that the lessor payment to the lessee of the pur- could not, as against one claiming chase price. „ 247 REMOVAL BY THIRD PERSON. 1621 he may make,^^^ since, if he cannot himself annex and remove fixtures, he should not be able to empower others to do it. § 247. Rights of removal by person other than lessee. It appears never to have been questioned that one to whom the leasehold has been assigned has the same right as the lessee had before assignment to remove articles annexed by himselt. The ri-ht to remove a fixture may be exercised by one to whom a tenantrafter making the annexation, has undertaken to ti-anster the fixture, either absolutely^os or by way of mortgage.^e^ And so it seems, regarding a removable fixture as part of the land, one to whom the leasehold interest is transferred after the annex- ation may remove the article annexed.^To in all such cases, how- ever though the transfer by the lessee is nominally of the fixture it.el'f what is really transferred is, it seems, merely the right ot removal ■''' That an assignment of the leasehold was m violation of a covenant of the lease has been held not to deprive the a^- si-nee of the right to remove a house erected by the lessee, such co^venant not appearing to be intended to control the sale of the house, and the assignee having paid a considerable sum for the assigument.2'^2 A judt^ment creditor of the tenant may, as has been before stated, exercise the right of removal after levying upon the fix- tures as personalty .2" A creditor,274 or other person claiming under the tenant, 267 See cases cited Bronson. Fix- Towa. 269; Massachusetts Nat^ Bank tures § GO- 13 Am. & Eng. Enc. v. Shinn, 18 App. Div. 276, 46 N. Y. Law." 670. note 3. Supp. 329. 268 Ballon V. Jones. 37 111. 95; .to See ante, at note 94 ward V. Earl. 86 111. App. 635; Os- -i See ante, at note 100^ good V. Howard. 6 Me. (6 Greenl.) 272 Upton v. Hosmer. 70 N. H. 493. 459 20 Am. Dec. 322; Shapira v. 49 Atl. 96. Barney 30 Minn. 59. 14 N. W. 270; 273 See ante, at notes 98. 99. union Terminal Co. v. Wilmar ^ S. .- Minshall v. ^loyd^ 2 Mee & F R Co 116 Iowa, 392, 90 N. W. W. 450; Morey v. Hoyt, 62 Conn. 542, 92- Talbot V Whipple, 96 Mass. (14 26 Atl. 127, 19 L. R. A. 611; Don- Allen) 177- Lanphere v. Lowe, 3 newald v. Turner Real Estate Co.. Neb 131- Hig^insv. Ridden, 12 Wis. 44 Mo. App. 350; Friedlander v^ ^87 78 Am. Dec. 762; McMath v. Ryder. 30 Neb. 783, 47 N. W. 3. 9 Levy. 74 Miss. 450, 21 So. 9, 523. L. R. A. 700; Thropp's Appeal, 70 269 wintermute v. Light, 46 Barb. Pa. 395. (N. Y.) 278; Denham V. Sankey. 38 270 Menger v. Ward (Tex. Civ. 1622 FIXTURES. § 247 has ordinarily no ri'0 and are consequently the subject of conversion.290 The right of the tenant to maintain replevin for fixtures, in ease the landlord refuses to allow their removal, is also dependent upon w^hether, in that particular jurisdiction, a removable fixture can be regarded as personal property.^^i In case the tenant removes articles annexed by him which he has no right to remove, he is liable to the landlord as for a con- version,292 or the latter may, it seems, bring trespass de bonis asportatis,^^^ or he may recover the articles by an action of re- plevin,2»^ provided they have not been annexed to other land and so again lost their chattel character. The landlord may obtain an injunction to restrain the wrong- ful removal of fixtures by the tenant, or one claiming under him. if this removal is calculated to cause irreparable injury, ^^'^ and not otherwise, it has been said.^^^ It was decided that an in- junction would issue when the tenant threatened to remove an addition to a building and this removal would leave the build- ing open to the elements,-"" and when a sale of the fixtures under execution was threatened by the sherifi', the threatened injury being irreparable and partaking of the nature of waste.^^s ^q Pac. 844; Watts v. Lehman, 107 Pa. 20* Anderson v. Happier, 34 111. 106; Vilas v. Mason, 25 Wis. 310; 436, 85 Am. Dec. 318. Eldridge v. Hoefer, 45 Or. 239, 77 205 See Sunderland v. Newton, 3 Pac. 874. Sim. 450; Hamilton v. Stewart, 59 289 See ante, at note 174. 111. 330; Nolan v. Rotsler, 135 Cal. 290 See Chalifoux v. Potter, 113 264, 67 Pac. 127. Compare ante, § Ala. 215, 21 So. 322; Stout v. Stop- 109 b (2). pel, 30 Minn. 56, 14 N. W. 268; and 206 Hamilton v. Stewart, 59 111. cases cited 13 Am. & Eng. Enc. Law, 330. But see Brigham v. Overstreet, 679, note 2. 128 Ga. 447, 57 S. E. 484, 10 L. R. A.' ^01 See Raymond V. Strickland, 124 (N. S.) 452, to the contrary, pro- Ga. 504, 52 S. E. 619, 3 L. R. A. (N. vided the removal would constitute S.) 69. waste. And see ante, § 109 b (2), as 292 Weeton v. Woodcock, 7 Mees. to injunctions against waste. & W. 14; McNally v. Connolly, 70 297 Portescue v. Bowler, 55 N. J. Cal. 3, 11 Pac. 320; Morgan v. Neg- Eq. 741. 38 Atl. 445. See Camp v. ley, 3 Pittsb. R. (Pa.) 33. Chas. Thatcher Co., 75 Conn. 165, »3 See Ewell, Fixtures (2d Ed.) 52 Atl. 953. 424; 13 Am. & Eng. Enc. Law (2d 298 Richardson v. Ardley, 38 Law- Ed.) 681. J. Ch. 508. REMEDIES. 1625 § 248 injunction has also issued to restrain removal pendinc. an action at law to ascertain the rights of the parties.-^ An mjunction was refused, however, when the fixtures sought to be remoyed had been substituted for others belonging to the lessor, it being said that the lessor's claim to such substituted fixtures, conceding that it was justified, was "based on strict legal right as to the result of substitution. "300 2»o Sunderland v. Newton, 3 Sim. 3oo Fox v. Lynch. 7i N. J. Eq. 537, 450; Baker v. National Biscuit Co., C4 Atl. 439. 96 111. App. 228. CHAPTER XXIV. CROPS. § 249. Tenant entitled to crops and annual fruits. 250. Stipulations against removal of crops. 251. The doctrine of emblements. a. Nature of the right. b. Things which are the subject of the right c. Classes of tenants entitled. (1) Life tenant. (2) Life tenant's lessee. (3) Tenant at will. (4) Tenant for years. (5) Tenant from year to year. (6) Tenant at sufferance. d. Effect of forfeiture by tenant. 252. Tenant's rights as against prior mortgage or paramount title. 253. Agreements for the division of crops. a. General considerations. b. Tenancy in common in crops. c. Duties as regards cultivation and barvesttng. d. Ascertainment of landlord's share, e. Delivery of landlord's share. (1) Mode of delivery. (2) Time of delivery. f. Transfer of undivided share. g. Rights of creditors. b. Enforcement of rights as between the parties. 1. Actions against third persons. § 249. Tenant entitled to crops and annual fruits. A lease, like any other conveyance of a present estate in land,^ transfers the right to the vcfretable products of the soil which are growing at the time, unless they are expressly excepted from its operation.2 And since the tenant under the lease is given 1 See 1 Tiffany, Real Prop. § 226. Broughton v. Powell, 52 Ala. 123; 2 Robinson v. Kruse, 29 Ark. 575; Tuttle v. Langley, 68 N. H. 464, 39 » 049 TENANT ENTITLED. 1627 the full right of possession and enjoyment of the premises, he is also entitled to such vegetable products as may be the result of his own planting during the tenancy, "frucius vndustnales, as they are sometimes called.^ The fact that the tenant had the benefit of the crop growing at the time of the lease m no way affects his riehts as to subsequent crops, even though the effect is to give him more annual crops than the number of the years of his term.^ Nor does the fact that a portion of the profits from the leased premises is to be paid to the landlord affect the ten- ant's absolute ownership of the crops.'^ In the case of frucius naturahs, such as trees, growing timber and grass, the right of the tenaut under the lease to appropriate such'products is restricted by reason of the prohibition of waste,« but he may take the periodical products of such permanent plant- ings, such as the fruits on the trees and bushes, and the crops of grass or hay, since this cannot be regarded as wasted In one Atl 4S8; Martin v. Knapp, 57 Iowa, Mich. 76; Iddings v. Nagle. 2 Watt3 336 10 N W 721; Hosli v. Yokel. 57 & S. (Pa.) 22; Doremus v. Howard. Mo' App' 622; Edwards v. Perkins. 23 N. J. Law (3 Zab.) 390; McLellan 7 Or 149- Emery v. Fugina. 68 Wis. v. Whitney. 65 Vt. 510. 27 Atl. 117. 505 32 N W 236; Comfort v. Dun- The lessor is not entitled to drift- can 1 Miles (Pa.) 229; Willey v. wood landed by the lessee from the Conner. 44 Vt. 68; Piper v. Piper, adjoining river. Dyer v. Haley. 29 122 Mich. 662. 81 N. W. 554; Al- Me. 277. bright V. Mills. 86 Ala. 324. 5 So. 591. * Comfort v. Duncan, 1 Mi es In Hisey v. Troutman. 84 Ind. 115. (Pa.) 229; Willey v. Conner. 44 Vt. it was held that the growing crop 68. may be orally excepted from the ^ McLellan v. Whitney, 65 Vt. 510, 27 Atl. 117; Rowlands v. Voechting, Tt\as been decided that the lessee 115 Wis. 352. 91 N. W. 990; Randall may have, by custom, the right to v. Ditch. 123 Iowa. 582. 99 N. W. 190. enter to sow crops before the com- So when a certain portion of the mencement of the term. Stephen- product of the tenant's factory is to son V Elliott. 2 Ind. App. 233. 28 N. be paid as rent, the tenant owns all g 326 the product until payment is made, 'sin re LuckenbiU. 127 Fed. 984; Rowland v. Forlaw, 108 N. C. 567. Robinson v. Kruse. 29 Ark. 575; 13 S. E. 173. Cheney v. Bonnell. 58 111. 268; Frame « See ante, § 109 a (5). V Badger 79 111. 441; Munier v. ^ Hurtt v. Woodland, 24 Md. 417 Zachary (Iowa) 114 N. W. 525; (fruit); Felch v. Harriman, 64 N. Holdeman v. Smith. 3 Kan. App. H. 472. 13 Atl. 418 (fruit); Lewis v. 423 43 Pac. 272; Brown v. Turner, McNatt, 65 N. C. 63 (turpentine on 60 Mc 21- Torche v. Bodin, 28 La. trees); Quiggle v. Vining. 125 Ga. Ann. 7G1; Stadden v. Hazzard, 34 98. 54 S. E. 74 (fruit). That the 1628 CROPS. §249 case thorc is a suggestion tliat a ten.int, if he harvests a crop of hay prematurely, at a time when it is not good husbandry so to do, in order not to leave it on the premises at the end of his term, would not be entitled to retain it.^ If such cutting can be regarded as waste, this view is no doubt correct, since a tenant is not entitled to the proceeds oi" waste coramittiMl by him,^ but it might perhaps be regarded as merely a breach of his im- plied contract to cultivate according to the rules of good hus- bandry,"^ rendering him liable in damages onl}'. The tenant being the owner of the annual crops, he has a right tenant Is entitled to hay and grass, see Turner v. Bachelder, 17 Me. 257; Dockham v. Parker, 9 Me. (9 Greenl.) 137, 23 Am. Dec. 547; Or- cutt V. ^Toore, 134 Mass. 48, 45 -Vm. Rep. 27S; Doremus v. Howard, 23 N. J. Law (3 Zab.) 390; McCombs V. Becker. 3 Hun (N. Y.) 342; St. Louis, I. M. & S. F. R. Co. v. Hall, 71 Ark. 302, 74 S. W. 293. 100 Am St. Rep. 73; Tuttle v. Lanpley, 68 N. H. 464. 39 Atl. 488. See Carten- brook V. Wedderien, 5 Cal. App. 603, 91 Pac. 117. That the lessee has agreed to *Tieep" cows which were included in the lease of the premises docs not prevent the title to the hay from vesting in the lessee, although he has no means otherwise with which to keep the cows. Briggs v. Austin, 129 N. Y. 208, 29 N. E. 4. An instrument whereby the land- owner agreed to "furnish to" an- other a certain number of acres, more or less, to row in wheat during a season, the landowner to receive one-fifth of the crop, and the other party agreeing to "put in wheat the above mentioned land," was i-eld, "whether it be called a lea-^e or a cropping contract," to give the latter a right in so much of the land only as he sowed in wheat, and iT^t to entitle him to claim a "volun- teer" crop growing on the balance. Shaw V. Mayer, 95 Cal. 301. 30 Pac. 541. This seems to be equivalent to a decision thnt it was nni a lease. In Hendrr?on v. Tre.Tdway, 69 111. App. 357, it was apparently held that where one in po^se?sion under a lease left the grass on the land uncut because be had obtained a lease for the next ycir, he could re- cover its value if taken by the les- sor, the court undertaking to apply the general rule that one delivering property under a contract within the statute of frauds may recover Its value under a quantttm valehat. One difficulty with the decision ap- pears to be that there was in fact no delivery of property, and the rule referred to is of course applicable to an entirely different class of transactions, executory contracts within the fourth section of the English statute. The lessor was, however, evidently liable as a tres- passer for taking the hay during the period of the second year's lease. sWilley V. Corjr.er, 44 Vt. 68. There it is said that the tenant was entitled to the hay, it appearing to be good husbandry to harvest it at that time. n See ante, § 109 c. 10 See ante, § 119 a (1). , 249 TENANT ENTITLED. 1629 to transfer them by way of mortgage or otherwise,ii and they are subject to levy by his creditors under execution.12 Occasionally the question has arisen wliether, by reason of the fact that trees, bushes, or shrubs were planted by the tenant, he has a right to remove them, though he would not have such rio-ht had they been growing on the premises at the time of the leLe It has been decided that such growths, if planted by the tenant in the course of his conduct of a nursery business on the premises, with the purpose of removing them for sale, may be removed by him, this view being occasionally based on the theory that they are in the nature of trade fixtures, and sometimes on the theory that they have never become part of the realty.^^ Conceding that trees and bushes, if planted by a nurseryman for the purpo"se of sale, are removable as trade fixtures, it would seem that, if planted by a tenant for the purpose of adornment, they might be removable as ornamental fixtures.^* It has, however, been decided in England that the tenant cannot remove a bordei of box planted by himself,!^ and it is in the same case said that he cannot remove a hedge. ^° iijones V Webster. 48 Ala. 109; 12 Porche v. Bodin. 28 La. Ann. Arques v Wos^^on. 51 Cal. 620. 21 701; V.'hipple v. Foot. 2 Johns. (N. Am Rep. 718; Strawhacker v. Ives. Y.) 418. 3 Am. Dec. 442. And see 114 Iowa. CGI. 87 N. W. CG9; North- post. § 2r,3 g. ern v State 1 Smith (Ind.) 71; 13 Wardell v. Usher. 3 Scott N. R. Headrick v. Brattain. 03 Ind. 438; 508; Oakley v. Monck. L R. 1 Exch Brown v Turner. 60 Mo. 21; Ever- 163; Wyndham v. Way. 4 Taunt. 316 man v Robb, 52 Mis.=^. 053. 24 Am. (dictum); Fox v. Brissac. 15 Cal. Rep 68?- Jencks v. Smith. 1 N. Y. 223; Maples v. Millon. 31 Conn. 598 (1 Comst) 90; Yates v. Kinney. 19 (di-tum); Miller v. Baker, 42 Mass. Neb 275 27 N W 132; Doromus v. (1 Mete.) 27; Adams v. St. Louis & Howard.' 23 N.J. Law (3 Zab.) 390. S. F. R. Co.. 138 Mo. 242, 28 S. W. A mortgage of crops to be grown. 496. 29 S. W. 836; Duffus v. Bangs, m.do bv a lessee after the lease but 122 N. Y. 423. 25 N. E. 980; King before "the commencement of the v. Wilcomb, 7 Barb. (N. Y.) 263; term has been held not to be valid. Wintermute v. Light, 46 Barb. (N. he not being the owner of the prem- Y.) 278. That they must be removed ise<. and having therefore no po- before the end of the term, see tential ownership in the crop. Page Brooks v. Galster. 51 Barb. (N. Y.) V Larrowe, 60 Hun, 636, 22 N. Y. 196. Supp 1099. A mortgage of the 14 See ante. § 240 b. crops by the tenant to the landlord is Empson v. Soden, 4 Barn. & does not -i^ort the existence of the Adol. 655. 1 Nev. & M. 720. tenancy Steele v. Moore, 54 Ind. 52. is m Wyndham v. Way. 4 Taunt 1(330 CROPS. § 250 In caso of surrcnrlor by the tenant to the landlord, the tenant loses all right to the crops, they passing to the landlord with the land, as in the case of any other conveyance. Consequently, no question can arise as to the tenant's right to enter for tht purpose of harvesting them after the termination of the tenancy by surrender,!^ and it is immaterial that the surrender is not express but is by operation of law, as wlion the tenant a])andons and the landlord resumes possession. ^^ If, however, the tenant has, before the surrender, sold his crop to another, the latter 'a rights cannot be affected by the surrender, at least if the land- lord has notice of such sale,^^ this according with the general rule that a surrender does not divest ri'jhts previously vested in a third person. 2'^ And crops which have been cut, it appears, remain the property of the tenant. ^o* § 250. Stipulations against removal of crops. Occasionally the lease provides that the hay or straw or some other particular class of crop shall not be removed from the land, or that it shall be consumed thereon, the purpose of such a pro- vision being ordinarily to prevent the impoveri.shment of the soil. A provision of this character has by some cases been re garded as vesting the title to the crop named in the landlord,2i 316 it is said, per Heath. J., that a It was decided In England that farmer who raises young trees for the purchaser of the crops could, the purpose of filling up the orch- upon a surrender taking place, as- ards on the premises cannot remove sert a ri?:ht to the crops only sub- such trees. j^^*^ to liability to distress for rent, 17 Sweeper v. Randal. Cro. Eliz. that is. the purchaser could not assert 15fi; Clements v. Matthews, 11 Q. B. that the surrender was invalid as Div. 808; Shahan v. Herzberg, 73 against him for the purpo=^e of giv- Ala. 59; Silva v. Bair, 141 Cal. 599. ing him the crops, and valid in his 75 Pac' 162; McClary v. Turner. 3 favor for the purpose of relieving Houst. (Del.) 281, 32 Atl. 325. the crops from liability to distress. 18 Carpenter v. Jones, 63 111. 517; Clements v. Matthews, 11 Q. B. Div. Gregg v. Boyd, 69 Hun, 588, 23 N. 808. y. Supp. 918; Hetfield v. Lawton, 20 See ante. § 191 b. 108 App. Div. 113, 95 N. Y. Supp. aoa See Griswold v. Morse, 59 N. 451; Sharp v. Kinsman, 18 S. C. lOS. H. 211. 10 Shaw v. Bowmcin. 91 Pa. 414; 21 ]\Tou1ton v. Robinson, 27 N. H. Nye V. Patter<^on, 35 Mich. 413; Day- 550: Hatch v. Hart, 40 N. H. 93; ton V. Van D^ozer. 39 Mich. 749. Lewis v. Lyman, .39 Mass. (22 Pick.) See Carr.oy v. Mosher, 97 Mich. 554, 437; Fenld v. Builders' Mut. Fire 56 N, W. 935. Ills. Co., Ill Mass. 38; Potter v. - j^ DOCTRINE OF EMBLEMENTS. 1631 while by other eases it is not regarded as affecting the ten- ant's oAvnership of the crop, it being in effect merely a cov- enant sounding in damages.— There is sometimes a provision to the effect that the hay or straw shall be kept on the premises for the purpose of feeding stock thereon belonging to the lessor. That this, rather than the improvement of the soil, is the purpose of the prohibition of removal or sale, does not, it seems, affect the question of the title to such crop.2^ § 251. The doctrine of emblements. a. Nature of the right. It is a general rule that if one's es- tate in land comes to an end at a time which he could not have Cunningham, 34 Me. 192; Coe v. Wil- straw to the cows on the farm de- son, 46 Me. 314 (compare Symonds prived him of the beneficial use V. Hall, 37 Me. 354. 59 Am. Dec. 53) ; thereof and of the ri^ht to take Hunt V. Scott, 3 Pa. Co. Ct. R. 411; such crops off the farm, and that Young V. Waiters, 5 Pa. Co. Ct. R. an execution creditor of the tenant 2^27 had no greater right. The opinion 22 Colville V. Miles, 127 N. Y. 159, of Boyd, Ch., in this case, reviews 27 N E 809, 12 L. R. A. 848, 24 all the English authorities in any Am. St. Rep. 433; Munier v. Zachary way bearing upon the question of (Iowa) 114 N. W. 525; McLellan v. the effect of such a clause. Whitney, 65 Vt. 510. 27 Atl. 117; In Hunt v. Rublee, 6 Vt. 448. 58 Ridgway v. Stafford, 6 Exch. 404 Atl. 724, it is stated that a provision (dictum). That a stipulation that "no hay shall be sold, but the against removal of hay gives the stock shall be increased to consume landlord no property in the hay it," made the parties tenants in corn- available against an innocent pur- mon of the hay. In this state it has chaser, see Marshall v. Luiz, 115 Cal. been decided that if the tenant sells 622 47 Pac. 597. the crops in violation of a provision In England there is a dictum in in the lease, he and his vendee im- Ridgway v. Stafford, 6 Exch. 404, mediately become liable to the land- that a covenant by the tenant not lord in damages. Briggs v. Oaks, 26 to sell did not affect his power to Vt. 138; Briggs v. Bennett, 26 Vt. sell, but only rendered him liable 146; Gray v. Stevens, 28 Vt. 1, 65 in case of breach. In Crosse v. Am. Dec. 216; Wilmarth v. Pratt, 56 Duckers, 27 Law T. (N. S.) 816, an Vt. 474. injunction was granted against a =3 Sp^ Lewis v. Lyman, 39 Mass. sale in violation of the covenant. (22 Pick.) 437; Potter v. Cunning- In Snetzinger v. Leitch, 32 Ont. 440, ham, 34 Me. 192; Colville v. Miles, it was decided that "while the prop- 127 N. Y. 159, 27 N. E. 809, 12 L. erty might be legally in the tenant. R. A. SIS, 24 Am. St. Rep. 433; Snet- yet his contract to feed the hay and zinger v. Leitch, 32 Ont. 440. 1632 CROPS. §251 previously ascertained, without his fault and without any action on his part to bring about such a result, he is entitled to take the annual crops planted by him before the termination of tht estate.=4 This right is ordinarily referred to as the right or doc- trine of "emblements," and is based upon the justice of assur- ing to the tenant compensation for his labor, and also upon the desirability of encouraging husbandry, as a matter of public policy. The fact that the tenant has done work on the land in tlie nature of plowing or manuring, before the termination of his ten- ancy, does not, if he has not actually sown the crop, entitle him to assert any claim to the crop subsequently grown.25 The tenant entitled to emblements has the right of ingress to and egress from the premises for the purpose of harvesting and taking away the crops. =« He also has the right to go upon the premises for the purpose of doing such cultivation as may be necessary .=^" lie has not, however, the right of exclusive occu- pation.'S The right of ingress and egress for this purpose also 24 Co. Litt. 55 b; 2 Blackst. Comm. 123. See Sornberser v. Berggren, 20 Neb. 399, 30 N. W. 413; Bittinger v. Baker, 29 Pa. GG, 70 Am. Dec. 154; Davis V. Brocklebank, 9 N. H. 73. 25 Bro. Abr., Emblements, pi. 7; Reeder v. Sayre, 70 N. Y. 180, 26 Am. Rep. 567; Price v. Pickett, 21 Ala. 741; Stewart v. Doughty, 9 Johns. (N. Y.) 108; Thompson's Adm'r v. Thompson's Ex'r, 6 Mnnf. (Va.) 514; Kingsbury v. Collins, 4 Bing. 202. Contra by statute, in Vir- ginia. Code 1904, § 2808. 26 Litt. § 68; Co. Litt. 56 a; Simp- Idns V. Rogers, 15 111. 397; Reilly v. Ringland, 39 Iowa, lOG; Van Doren V. Everett, 5 N. J. Law (2 Southard) 460, 8 Am. Dec. 615; Reeves v. Han- nan, 65 N. J. Law, 249, 48 Atl. 1018; Brown v. Thurston, 56 Me. 126, 96 Am. Dec. 438; Towne v. Bowers, 81 Mo. 491: Davis v. Brocklebank, 9 N. H. 73; Stewart v. Doughty, 9 Johns. (N. Y.) 108. 27 Bevans v. Briscoe, 4 Har, & J. (Md.) 139; Den d. Humphries v. Humphries, 25 N. C. (3 Ired. Law) 3G2; Edghill v. Mankey, 79 Neb. 347. 112 N. W. 570, 11 L. R. A. (N. S.) GS8. 2s Den d. Humphries v. Hum- phries. 25 N. C. (3 Ired. Law) 362; r:aghill V. Mankey, 79 Neb. 347. 112 N. W. 570. 11 L. R. A. (N. S.) 688; Collins v. Crownover (Tenn.) 57 S. W. 357: Smith. Landl. & Ten. (3d Ed.) 404; 1 Williams, Executors (9th Ed.) 632. See Stoddard v. Wa- ters, 30 Ark. 156. But in Bevans v. Briscoe. 4 Har. & J. (Md.) 139, It is said that "the reversioner 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 in Griffiths v. Puleston, 13 Mees. & W. 358. a customary right to take away-going crops (post, notes 59, GO) was regarded as giving a right of possession. § 251 DOCTRINE OF EMBLEMENTS. 1633 exists in favor of one interested in the crop M-ith the tenant,-'' of the tenant's grantee,^'' and of the tenant's personal representative on his death,^^ and it can be asserted against any transferee of the reversion.32 It has been suggested that the tenant or his representative might be held liable for rent on account of his occupation of the land during the time necessary for the maturing and harvesting of the crops,^^ but the cases generally make no reference to such possibility,^* and it seems entirely opposed to the view that the tenant has merely a right of occupancy, and of ingress and egress, for the purpose of caring for the crop, and no right of exclusive possession. In one state the statute makes the tenant liable for rent proportioned to the extent of the land required for the crop.^^ b. Things which are the subject of the right. The right to emblements is confined to those things which yield an annual profit. If the lessee "plant young fruit trees, or young oaks, ashes, elms, etc., or sow the ground with acorns, etc., there the lessor may put him out notwithstanding, because they will yield no present annual profit. "3*^ "The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual arti- ficial profit, but it is otherwise of fruit trees, grass and the like, which are not planted annually at the expense and labor of the tenant, but are either a permanent or natural profit of the earth. For when a man plants a tree he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to himself in future, and to future successions of tenants. "^^ It does not extend to fruit growing on trees or bushes at the time of the termination of the ten- ancy .^^ Grass, even though sown from seed, and ready to be cut for hay, cannot be taken as emblements, since "the improvement 29 Kingsbury v. Collins, 4 Bing. See 1 Williams, Executors (9th Ed.) 202. 632. sosheppard's Touchstone, 244. '* ^^ is negatived in Bevans v. ,r..-u T^^ s Briscoe, 4 Har. & J. (Md.) 139. 811 Williams, Executors (9th Ed.) , _,. . . ^ , .... „ „„^_ 623. 35 Virginia Code 1904, § 2807. 3e Co. Litt. 55 b. 32 Kingsbury v. Collins, 4 Bing. 37 3 Blackst. Comm. 123. 202. 38 1 Williams, Executors (9th 33 piowden's Queries. No. 239. Ed.) 620,624. L. and Ten. 103. 1G34 CROPS. § 251 is not distinnd crop from the same sowing, although he has applied additional labor to make the second 'Toi).'" c. Classes of tenants entitled — (1) Life tenant. The doctrine of emblements is applied when a life tenant plants crops and dies before they are gathered, his personal representatives being in such case entitled to the crops."*^ A tenant pur autre vie may take the crops upon the death of the cestui que vie.^^ 39 1 Williams, Executors. 625; Compare Florala Saw Mill Co. v. Reiff V. Reiff, 64 Pa. 134. Parrish (Ala.) 46 So. 401. 40,411 Williams, Executors, 625; 4c Graves v. Weld, 5 Barn. & Adol. Graves v. Wells, 5 Barn. & Adol. 105. 105. 42 Craig V. Dale, 1 Watts & S. ^t Graves v. Weld, 5 Barn. & Adol. (Pa.) 509, 37 Am. Dec. 477. The 10.=i. This rule was applied, in case involved the right to the straw Hendrixson v. Cardwell, 68 Tenn. as a part of the away-going crop, (9 Baxt.) 389, 40 Am. Rep. 93, to a but the principles asserted by the case in which the tenant, after tak- court would apply to the right of ing one crop of oats, "plowed In" emblements. the stubble to make a second crop. 43 Latham v. Atwood, Cro. Car. 4s Co. Litt. 55 b; 2 Blackst. Comm. 515. 122. 44 Graves v. Weld, 5 Barn. & Adol. 4n Co. Litt. 55 b; Bro. Abr., Emble- 105, 119. ments, pi. 16. 45 Lewis v. McNatt, 65 N. C. 63. §251 DOCTRINE OF EMBLEMENTS. 1635 (2) Life tenant's lessee. One holding under a lease from a life tenant is entitled to the benefit of the rule. Thus, if a life tenant, after making a lease, dies before the end of the term thereby created, the lessee is entitled to take the crops as against the remainderman,^*^ ^nd he is so entitled when the lessor's estate comes to an end by the latter 's own act, though the lessor himself would not have been entitled in such case to crops planted by himself.^^ (3) Tenant at will. A tenant at will, or his representative, is entitled to the crops planted by such tenant, if the tenancy comes to an end by some providential cause, as by his own death or by that of his landlord, or if the landlord terminates the ten- ancy," but not if the tenant himself terminates it by some vol- 60 Co. Lltt. 55 b; Bro. Abr., Leases, pi. 24; Emblements, pi. 6; Edghill V. Mankey, 79 Neb. 347, 112 N. W. 570. 11 L. R. A. (N. S.) 688; Bev- ans V. Briscoe, 4 Har. & J. (Md.) 139. The fact that the lessee knows, at the time of planting the crop, that his lessor will almost certainly die before they mature, is immateri- al. Bradley v. Bailey, 56 Conn. 374, 15 Atl. 746, 1 L. R. A. 427, 7 Am. St. Rep. 316. Occasionally the statute provides that in such case the ten- ancy shall continue until the crop matures. Ante, § 69 c, note 21. In Kentucky the provision of a statute (St. 1903, § 3862) naming the persons entitled to crops upon the death of a life tenant was re- garded as applying when the tenant In possession held under a lease from the life tenant so dying. Devers v. May. 30 Ky. Law Rep. 528, 99 S. W. 255. 51 As when one having an estate during widowhood makes a lease and then marries. In such case the lessee is entitled to emblements. Oland V. Burdwick, Cro. Eliz. 460; Debow V. Colfax. 10 N. J. Law (5 Halst.) 128; 2 Blackst. Comm. 124. And so a subtenant does not ordi- narily lose his crops by reason of the enforcement of a forfeiture by the head landlord on account of a breach of condition by the head ten- ant. Bevans v. Briscoe, 4 Har. & J. (Md.) 139; Samson v. Rose, 65 N. Y. 411. But it has been held that a sublessee who sowed after the com- mencement of an ejectment proceed- ing by the chief landlord to enforce a forfeiture of the interest of the sublessor could not claim the crops as against the chief landlord. Sam- son V. Rose, 65 N. Y. 4ll. 52Litt. § 68; Co. Litt. 55 b, 56 a, 63 a; Oland's Case, 5 Coke. 116 a; Mor- gan V. Morgan, 65 Ga. 493; Ellis v. Paige, 18 Mass. (1 Pick.) 43; Harris V. Frink. 49 N. Y. 24. 10 Am. Rep. .318; Reilly v Rinsland, 39 Iowa, 106; Brown v. Thurston, 56 Me. 126, 96 Am. Dec. 438; Simpson v. Rog- ers, 15 111. 397; Howell v. Schenck, 24 N. J. Law (4 Zab.) 89; Towne V. Bowers, 81 Mo. 491; Monday v. O'Neil, 44 Neb. 724, 63 N. W. 32, 48 Am. St. Rep. 760; Davis v. Brock- lebank, 9 N. H. 73. Occasionally a statute gives such rights to a ten- ant at will. Georgia Code 1895, § 1G36 CROPS. §251 imtary act on his part.^^ (4) Tenant for years. A tenant for years is not ordinarily entitled to emblements, since he knows when the term is to come to an end, and should not plant crops which will not mature be- fore that time,^-* but he is so entitled if the tenancy comes to an end, without his connivance, before the end of the term, as, for instance, when this results from the termination of his landlord's estate,'^^ or by reason of a "special limitation."^" 3134; Montana Rev. Codes, § 4519; North Dakota Rev. Codes 1905. § 4800; South Dakota Rev. Civ. Code 1903. § 280. In Reilly v. Ringland, 39 Iowa, 106, it was held that where an occu- pying claimant was given a judg- ment for the cost of his Improve- ments, to be paid within three years, and the owner delayed to pay off the judgment, the latter thereby as- sented to his cortinued occupancy, and the claimant being so in pos- session by the owner's assent, was entited to emblements. The deci- sion was in part based on the stat- ute (Code, § 2991) providing that a person in possession with the as- sent of the owner is presumed to be a tenant at will unless the con- trary is shown. 53 Co. Litt. 55 b; Chandler v. Thurston. 27 Mass. (10 Pick.) 205; Gland's Case, 5 Coke, 116; Oland v. Burdwick, Cro. Eliz. 460. 54 Litt. § 68; 2. Blackst. Comm. 145; Florala Sawmill Co. v. Parrish (Ala.) 46 So. 461; Whitmarsh v. Cutting, 10 Johns. (N. Y.) 360; Chesley v. Welch, 37 Me. 106; Har- ris V. Carson, 7 Leigh (Va.) 632, 1^0 Am. Dec. 510; Gossett v. Drydale, 48 Mo. App. 430; Whitmarsh v. Cutt- ing, 10 Johns. (N. Y.) 360; Reeder V. Sayre, 70 N. Y. 180, 26 Am. Rep. 567; Clarke v. Rannie. 6 Lans. CTC. Y.) 210; Sanders v. Ellington, 77 N C. 255; Rasor v. Quails. 4 Blackf. (Ind.) 286, 30 Am. Dec. 658. That the lessee is entitled to con- tinue the lease for an additional period gives him no right to take the crops, he having left before tho end of the original term. Bain v. Clark, 10 Johns. (N. Y.) 424; Dircks v. Brant, 56 Md. 500. In North Dakota (Rev. Codcj 1905, § 4800) and South Dakota (Civ. Code 1908, § 280), the statute provides that a tenant for years, as well as one at will, may "cultivate and harvest the crops growing at the end of his tenancy." 65 As when the lessor has merely an estate for life and dies before the crops are harvested. Co. Litt. 55 b; Bro. Abr., Emblements, pi. 6. The same principle has been applied when, after a husband had leased his wife's land to another, she pro- cured a divorce a vinculo, his es- tate thus coming t» an end, and ron- sequently that of his lessee a]r:o. Goi-ld V. Webster, 1 Tyler (Vt.) 409. r.c As when a lea?e is for years si tamdiu vixerit, and the tenant, after sowing, dip? br?foro severance of the crop. 1 Rolle's Abr., Emble- ments, pi. 12, p. 727. So the tenant has been held to be entitled to em- blements when the tenancy came to an end by reason of a provision terminating it on notice from the §251 DOCTRINE OP EMBLEMENTS. 1G37 The landlord maj' validly stipi^.late that the tenant for years shall have the right to harvest the crop after the end of the term,^^ and he may, it has been in one case decided, by his con- duct in inducing the tenant to plant a particular crop, become estopped to deny the right of the latter to harvest such croj) after the term.-''^ Though the doctrine of emblements is not ordinarily applied in favor of a tenant for years after the end of the term, a custom that such tenant shall take his crops, not harvested by him during the term, has been recognized and given effect in several juris- dictions, such a customary right being known as the right to "waygoing (or away going) crops." In England the custom which controls in this respect is that of the particular locality or neighborhood,^^ while in several states in this country such a landlord to that effect (Stewart v. Doughty, 9 Johns. [N. Y.] 108) and on a sale by the landlord (Comfort V. Duncan, 1 Miles [Pa.] 229; Plan- ner V. Sturmer, 40 How. Pr. [N. Y.l 401). In Toles v. Meddaugh, 106 Mich. 398, 64 N. W. 329, 37 L. R. A. 561, 58 Am. St. Rep. 499, it was held that a tenant who agreed to relinquish possession upon a sale by the landlord could nevertheless retain possession after such sale till he had harvested and threshed his wheat. The North Carolina statute (Re- visal 1905, § 1990) provides that if a lease for years comes to an end "by the happening of an uncertain event determining the estate of the lessor, the tenant, in lieu of emble- ments, shall continue his occupation to the end of the current year," he paying a proportional rent for such continued occupation and being al- lowed for the seed and tillage of any crop not gathered by him. This ap plies to a lease for a year only as well as to one for a longer time. King V. Foscue, 91 N. C. 116. The English statute (14 & 15 Vict, c. 25 § 1) is substantially similar, but is not restricted to leases for years. 57 See Hyatt v. Griffiths, 17 Q. B. 505; Caldecott v. Smythies, 7 Car. & P. 808; Stoddard v. Waters, 30 Ark. 156; Hudson v. Porter, 13 Conn. 59. In Kelley v. Todd, 1 W. Va. 197, a stipulation that the land should be sown in wheat and timothy the last autumn of the term was con- strued as being intended for the benefit of the tenant, entitling him to the wheat growing at the term- ination of the lease, which occurred in the spring. The decision was in part based on Mason v. Moyers, 2 Rob. (Va.) 606, where a like con- struction was placed on a lease pro- viding that the tenant was not to farm "more than one-half of the cleared land in a year," and that, "at any time he should give up the land, the one-half was to be clear (that is, of a crop) and ready for tillage." 58 Carmine v. Bowen, 104 Md. 198, 64 Atl. 932. 59 See Wigglesworth v. Dallison, 1 Doug. 205; Boraston v. Green, 16 East. 71. 1638 CROPS. §251 custom in favor of the tenant has been recognized as common to the whole state.^*^ In one state, on the otlier hand, the possi- bility of the existence of a legal custom to that effect has been denied, on the ground that a custom must be immemorial, and that this is not possible in this country. ®i Such a custom would not prevail in opposition to express stipulations of the lease bear- ing on the subject.^2 The etfect of the common-law rule, that a tenant for a certain time is not entitled to the crop unmatured at the termination of the tenancy, taken in connection with the rule that a lease of land gives the tenant the right to the crops thereon at the time 60 In Delaware it is said that the tenant is entitled by custom to the wheat crop, but not to the crop of oats. Templeman v. Biddle, 1 Har. 522. Clark v. Banks, 6 Houst. 584, is to the effect that the custom ap- plies generally to grain sown in tho fall; and in Ellison v. Dolby, 3 Penn. 45, 49 Atl. 178, it is asserted that the off-going tenant has the right to the crop. In New Jersey the tenant Is ordin- arily entitled to the away-going crop (Van Doren v. Everitt, 5 N. J. Law [2 Southard] 460, 8 Am. Dec. 615; Corle V. ^Tonkhouse, 47 N. J. Eq. 73, 20 Atl. 367; Reeves v. Hannan, 65 N. J. Law, 249, 48 Atl. 1018), but the custom has been held not to ex- tend to a crop sown in March when the term was to expire in April (Howell V. Schenck, 24 N. J. Law [4 Zab.] 89). In Ohio the tenant's right has been regarded as dependent on the custom of the neijrhborhood. Fos- ter V. Robinson. 6 Ohio St. 90. In Pennsylvania the tenant has the right to the away-going crop by force of custom. Stultz v. Dickey, 5 Bin. 285, 6 Am. Dec. 411; Forsythe V. Price, 8 Watts, 282, 34 Am. Dec. 465; Shaw v. Bowman, 91 Pa. 414. But the custom has been held not to apply in the case of a crop plant- ed in the spring, just before the end of the term. Demi v. Bossier, 1 Pen. & W. 224. The fact that the tenant has lost his possession by reason of the execution of a writ of habere facias under a judgment in ejectment does not affect his right to the away-going crop. Biggs v. Brown, 2 Serg. & R. 14. In North Carolina the tenant's right to an away-going crop of crude turpentine was recognized in Lewis V. McNatt, 65 N. C. 63. Bi Harris v. Carson, 7 Leigh (Va.) 632, 30 Am. Dec. 510. The same view is indicated in Burrowes v. Cairns, 2 U. C. Q. B. 288. But In England, it seems, an immemorial custom is not regarded as necessary for this purpose, a common usage of the neighborhood being sufficient. See Senior v. Armytage, Holt, N. P. 197. 62 Wigglesworth v. Dallison, 1 Doug. 201; 1 Smith's Leading Cases (11th Ed.) 545, and notes; Boraston V. Green, 16 East, 71. The custom has been regarded as excluded by a covenant on the part of the lessee to give up the land at the end of the term. Burrowes v. Cairns, 2 V. C. Q. B. 288; Kaatz v. White, 19 U. C. C. P. 36. s 251 DOCTRINE OF EMBLEMENTS. 1639 of the lease,*53 jg^ jt seems, to give to the tenant under a lease a right to crops planted by a prior tenant for years, not harvested at the termination of the first tenancy or at the commencement of the new tenancy. In a recent case, however, the contrary view was adopted, that the incoming tenant is not thxis entitled to a crop planted by the outgoing tenant, on the theory, apparently, that such crop belongs to the latter, and that his mere failure to remove it cannot transfer the title to the former.*^^ The as- sumption that, because the crop is planted by the outgoing ten- ant, it is his crop, is opposed to the common-law view of the sub- ject, which regards the person entitled to the possession of land as ordinarily the person entitled to the crops thereon. The posi- tion of a tenant for years whose tenancy comes to an end, and who relinquishes or is expelled from possession before he has gathered the crop planted by him, seems analogous to that of a disseisor who is expelled before he has gathered the crop planted by him. It is not his crop merely because he planted it.<55 (5) Tenant from year to year. It has been decided in Eng- land that a tenant from year to year, whose estate is terminated by notice from the landlord, is entitled to emblements, in view of the uncertainty as to whether the landlord will give the legal notice to quit in any year.^^ In this country the right of such a tenant to emblomcnts has been denied.^^ In one case the rule is asserted to be that he is entitled to emblements which result from his sowing before the receipt of the notice to quit, and not so entitled to crops sown thereafter,^'^ and this seems to accord with the ordinary rules bearing on the subject. (6) Tenant at sufferance. One who wrongfully retains pos- es See ante, § 249. es Kingsbury v. Collins, 4 Bing 64Meffert v. Dyer, 107 Mo. App. 202. See Haines v. Welch, L. R. 4 462, 81 S. W. 643. The fact that the c. P. 91. crop was matured is referred to as er Gossett v. Drydale, 48 Mo. App. tending to make it personalty, and ^oq. sanders v. Ellington, 77 N C the fact that the second lessee knew 355. i^ Pennsylvania such a tenant of the first lessee's claim to such . . ^^ . , . , ^ . ^^ ^ IS given the right by custom. Clark crop is referred to as showing that ^^ ^ _ , 1 ■, ^ , .* .v. Harvey, 54 Pa. 142. he could not regard it as passing under his lease. '' ^^^der v. Sayre, 70 N. Y. 180. 65 See cases cited 12 Cyclopedia 26 Am. Rep. 567. Law & Proc. 977. 1640 ^^OP^- § -''^ session of land after his ri^'litful tenaney nnder a lease has come to an end, a "tenant at sulTerance,"«^ has no right to the crops then growing on the land by reason of such retention of posses- sion.'O Were the rule otherwise, a tenant for years could obtain a rif,'ht to emblements by merely holding over his term. If he actually severs the crops, however, he would apparently, in juris- dictions in which a disseisor is res^arded as entitled to crops sev- ered by him,'i likewise obtain title to such crops,^'- and the land- lord would in such case be relegated to an action for mesne profits to recover the value of the crops, or an action for the use and occupation of the landJ^ d. Effect of forfeiture by tenant. A tenant whose estate is terminated by his own act or default, as when he is guilty of a breach of condition subsequent and the landlord re-enters there- for, cannot ordinarily assert any right to emblements."^* As has CO See ante, § 15. °o modern English decision on this 70 In Doe d. Bennett v. Turner. 7 point. The year book decisions on Mees & W 226, it is said by Parke, the question whether a disseisor Is B that a tenant at sufferance has entitlpd to the crops are collected In no right to emblements. The view Viner's Abridgement, Emblements, that a tenant at sufferance is not p. 48, 51-57. The cases and dicta entitled to the crops is also asserted there referred to are in irreconcil- in Simpkins v. Rogers, 15 111. 397. able conflict, but rather favor on In Baker v Mclnturff, 49 Mo. App. the whole the view that a trosfasser 505 it was held that the landlord or disseisor cannot claim the crops could after the end of the term, sown by him even though he has though the tenant retained posses- severed them before re-entry by the sion take such crops, if still un- disseisee, and to this effect also are severed by an action of replevin. Liford's Case, 11 Coke, 51 b; Anony- 71 That the trespasser or disseisor mous. Dyer. 31 b, Moore. 24. Dalison. Is entitled to crops sowed and 30; Co. Litt. 55 b. This view is re- harvested by him, see Brothers v. ferred to with approval in Lane v Hurdle 32 N C. (10 Ired. Law) 490, King. 8 Wend. (N. Y.) 584. 24 Am. 51 Am' Dec 400- Faulcon v. John- Dec. 105, but Stockwell v. Phelps, ston 102 N. C. 264, 9 S. E. 394. 11 34 N. Y. 363.. 90 Am. Dec. 710. fav- Am ' St Rep 737: Stockwell v. ors the prevailing American view. Phelps 34 N Y. 363. 90 Am. Dec. " See Wolcott v. Hamilton, 61 Vt. 710- p'age V 'F\>wler, 39 Cal. 412, 2 79, 17 Atl. 39, to this effect. Am' Rep 462; Jenkins v. McCoy. 50 "See post, § 306 d. Mo' 348; Lindsay v. Winona & SI. ^* Co. Litt. 55 b; 1 Rolle's Abr.. p R Co 29 Minn. 411, 13 N. W. Emblements, pi. 3; Wicks v. Jordan, 191 43 Am St Rep. 228; Johnston V. 2 Bulst. 213; Oland v. Burdwick, Fish 105 Cal 420, 38 Pac. 979, 45 Cro. Eliz. 460; Bulwer v. Bulwer, 2 Am 'st Rep 53. There seems to be Barn. & Adol. 470; Davis v. Eyton. §251 DOCTRINE OF EMBLEMENTS. 1641 been remarked, under a contrary rule, a tenant, having sown his crop, would have little or no object in complying with his stipu- lations.' ^ There are, however, decisions in two states which as- sert a contrary view, to the effect that the forfeiture of the lease- hold does not affect the tenant's right to the crop.'^« It has been decided in New York that when the forfeiture was enforced by the bringing of an action of ejectment by him, the landlord was to be regarded as having taken possession at the time of the commencement of such action, and that crops matur- ing thereafter, though harvested before the landlord was put in possession, could not be removed by the tenant."^^ This view has been questioned, however, and there is in another jurisdic- tion a decision that no such principle is applicable when the landlord brings a proceeding to recover possession for nonpay- ment of rent, not by force of an express provision in the lease, but under the statute authorizing recovery of possession on this 7 Bins. 154; Russell v. Moore, 8 L. R. Ir. 318; Samson v Rose, 65 N. Y. 411; Kiplinger v. Green, 61 Mich. S40, 28 N. W. 121, 1 Am. St. Rep. 584; Cheney v. Bonnell, 58 111. 268; Myer v. Roberts. 50 Or. 81, 89 Pac. 1051. 12 L. R. A. (N. S.) 194, 126 Am. St. Rep. 733; Gregg v. Boyd, 69 Hun, 588, 23 N. Y. Supp. 918. 75 Hunter v. Jones, 2 Brewst. (Pa.) 370; Id,, 7 Phila. (Pa.) 233. And see ante, § 194 i (2), at note 246. 76 Collier v. Cunningham, 2 Ind. App. 254, 28 N. E. 341; Koeleg v. Phelps, 80 Mich. 466, 45 N. W. 350. 77 Samson v. Rose, 65 N. Y. 411, citing Hodgson v. Gascoigne, 5 Barn. & Aid. 88; Doe d. Upton v. V/ither- wick, 3 Bing. 11, 10 Moore, 267; Ad- ams, Ejectment (4th Ed.) 416; Tyler, Ejectment, 590. In reference to these citations, it may be said that in Hodgson v. Gascoigne, 5 Barn. & Aid. 88, only crops which were still growing at the time of the issu- ance of the writ of dispossession were involved. And in Doe d. Up- ton V. Witherwlck, 3 Bing. 11, 10 Moore, 267, the question was wheth- er the court would direct its pro- thonotary to ascertain the value of several crops which had been taken by the landlord, along with the land, under a writ of habere facias, and require the landlord to pay such value to the tenant, and this the court refused to do, holding that any rights in the tenant as to the crops must be asserted by action. The statement in Adams, Ejectment, Is based on these two cases merely, and that In Mr. Tyler's work also cites no other authority. See the re- marks on these citations In Brothers V. Hurdle, 32 N. C. (10 Ired. Law) 490, 51 Am. Dec. 400; Woodcock v. Carlson, 41 Minn. 542, 43 N. W. 479. The New York case is, however, in great part at least, based on the express statute of that state making the service of the declaration in an action of ejectment brought by the landlord for the purpose of enforc- ing a forfeiture for nonpayment of rent equivalent to a re-entry. 1642 CROPS. § 251 ground, and that if pending appeal in such statutory proceeding the tenant harvests his crop, the landlord cannot assert any claim thereto js it is remarked in the latter case that '4t is difficult to see why, on principle, a more severe rule should be applie;! against a tenant, who holds over after his term expires, or after he is in default in payment of rent, than is applied to a disseisor whose entry was a willful trespass. '"^^-^i The termination of a tenant's estate by reason of an act of forfeiture on his part will not usually affect a subtenant's right to harvest his crops.^^ It would seem that if a tenant is not entitled to take the crop after his tenancy has come to an end, whether by reason of the character of the tenancy, as being for a certain period, or because the termination of the tenancy is the result of his own act or de- fault, one to whom he has previously transferred the crop, but who has not harvested it, should not be allowed to enter for that purpose after the end of the teuancy.^^ j^ qj^q state, however, it is the rule that such transferee of the crop is entitled to claim the crop after a forfeiture of the tenant's interest in the land, al- though the crop is still growing at the time the landlord regains possession of the land.^^ T8 Woodcock V. Carlson, 41 Minn. Carney v. Mosher, 97 Mich. 554, 56 542, 43 N. W. 479. N. W. 935. In the latter ca.se 79.81 Woodcock V. Carlson, 41 there was, however, a surrender Minn. 542, 43 N. W. 479, per Mil- and not a forfeiture, it appears, chell, J. as there was in Nye v. Patter- 82 See ante, note 51. son, 35 Mich. 413, cited therein. In 83 Sanders v. Ellington, 77 N. C. this .state it would seem, from Koe- 255; Debow v. Colfax, 10 N. J. Law leg v. Phelps, 80 Mich. 466, 45 N. W. (5 Halst.) 128. In this last case it 350, that even the tenant himself can is said, per Ewing, C. J., that the take the crops after forfeiture, rule that one who terminates his It has been decided that it Is im- estate by his own default has no material, as regards the tenant's right to emblements "would be right to crops, that he is not a party worthless from obvious liability to to the foreclosure proceeding. Stan- evasion, if the widow might, the brough v. Cook, 83 Iowa, 705, 49 N. hour before her marriage, or the W. lOia; Reily v. Carter. 75 Miss, tenant on the day antecedent to his 798, 23 So. 435, 65 Am. St. Rep. 621; commission of waste, avoid the con- Downard v. Groff, 40 Iowa, 597. St. sequence of those acts by so simple John v. Swain, 14 N. Y. Supp. 743, a device as the sale of the crop." is contra, and it seems questionable 84 It is so stated in Miller v. Hav- whether a proceeding divesting ens, 51 Mich, 482, 16 N. W. 865, and rights in crops, or in any other § 252 RIGHTS AS AGAINST PRIOR MORTGAGE. 1643 § 252. Tenant's rights as against prior mortgage or paramount title. The question whether a tenant, holding under a lease made after the making of a mortgage on the land, can claim the crops sown by him as against one who has obtained title to the land upon a foreclosure of the mortgage, has been the subject of a number of decisions, and is one of difficulty. Under the common-law theory of a mortgage, as vesting the legal title in the mortgagee, the mortgagee has, in the absence of a stipulation to the contrary, the right to take possession of the land at any time without notice,^^ and it has been decided that the mortgagor, upon such dispossession by the mortgagee, is not entitled to take the crops, for the reason, says Lord Mans- field, that "all is liable to the debt,"86 that is, "the crop, as well as the land, is a security for the debt.''^^ This view, that the mortgage is intended to cover the crops as well as the land itself, as security for the debt, has been applied in numerous cases in this country, in which it was held that upon foreclosure of a mort- gage the person obtaining title thereunder, by sale or otherwise, is entitled to the crops then on the land as against the mortgagor, a different rule being applied, however, as to crops already sev- ered from the land.s^ In several states, however, it has been de- cided that a purchaser at foreclosure cannot claim the crops as against the mortgagor. In perhaps two states such decisions in favor of the mortgagor's right to the crops are based primarily upon the provisions of the local statutes requiring that the land be appraised before sale, and that it shall be sold only at a price bearing some proportion to its appraised value, taken in con- nection with the fact that the value of the annual crops is not included in the appraisak^^ Occasionally such decisions have been based upon the ground that, in the particular jurisdiction, property, should be effective as 261, 7 S. E. 669; Thompson v. Union against one not a party thereto. Warehouse Co., 110 Ala. 499, 18 So. See ante, § 73 c, at notes 137, 138. 105; 1 Jones, Mortgages, § 697. 85 See ante, § 73 a (2). ss See Jones, Mortgages, §§ 697, 86 Keech v. Hall, 1 Doug. 21. 1116, 1658, and authorities there 8T 1 Powell, Mortgages, 156. 15S b, cited. Coventry's notes. See Oilman t so Cassilly v. Rhodes, 12 Ohio, 88, Wills, 66 Me. 273; Jones v. Hill, 64 40 Am. Dec. 4^61 ; Hcuts v. Showalter, N. C. 198; Coor v. Smith, 101 N. C. 10 Ohio St. 125; Foss v. Marr, 40 1644 CROPS. § 252 a mortgage does not vest the legal title in the mortga.c^ee, but constitutes merely a lien.''® Elsewhere, however, it has bf^en re- marked that "the fact that the right to ejectment is taken away from the mortgagee by the statute and the mortgage reduced to a mere chose in action secured by lien upon the land, while the defeasance remains effectual, does not seem to have any essential bearing upon the question, inasmuch as the perfecting of title under it has relation to the time it became a lien,"^^ and since the common-law rule in this regard appears to have been based, not on the fact that the mortgagee has the legal title, but rather upon the theory that the crop is intended to be included in the security ,^2 the view asserted in the language quoted has certainly much in its favor. The opposite view seems to involve the as- sumption that the statutory change in the nature of a mortgage involves a change in the intention of the parties as to wh other the crops are to be included in the security. In two or tliree states it has been decided that if the crops are matured, they are to be regarded as in the same position as if severed, and that consequently the foreclosure sale passes title only to unmatured crops.^3 Such being the divergent views as to the rights of the mort- gagor to crops planted by him, it is but to be expected that a like divergence should exist as to the right of a tenant under a lease, made by the mortgagor subsequently to the mortgage, as to the crops planted by such tenant. In England the right of Neb. 559, 59 N. W. 122; Monday v. Pac. 153, 17 L. R. A. 284, 33 Am. O'Neil, 44 Neb. 724, G3 N. W. 32, 4S St. Rep. 373; Reed v. Swan, 133 Mo. Am. St. Rep. 760. 100, 34 S. W. 4S3; Reily v. Carter, 90 See "Willis v. Moore, 59 Tex. 628, 75 Miss. 798, 23 So. 435, 65 Am. St. 46 Am. Rep. 284; Heavilon v. Farm- Rep. 621. So where the mortgaso ers' Bank, 81 Ind. 249. And see expressly included "the rents, Issues cases cited post, note 106. and profits." Montgomery v. Mer- 91 Batterman v. Albright, 122 N. Y. rill, 65 Cal. 432, 4 Pac. 414. 484, 25 N. E. 856, 11 L. R. A. 800, 19 02 Sso ante, notes 86, 87. Am. St. Rep. 510, per Bradley, J. In 93 Hecht v. Dettman, 56 Iowa, 679, other states, also, in which the mort- 7 N. W. 495, 10 N. W. 241, 41 Am. gagee has not the legal title, the Rep. 131; Everingham v. Braden, 58 porchaser at foreclosure has been Iowa, 133, 12 N. V/. 142; First Nat. given the crops. See Downard v. Bank v. Beegle, 52 Kan. 709, 35 Pac. Groff, 40 Iowa, 597; Wheeler v. Kirk- 814, 39 Am. St. Rep. 365; Porche v. endall. 67 Iowa, 612. 25 N. W. 829; Bodin, 28 La. Ann. 761. Cfoodwin v. Smith, 49 Kan. 351, 31 §252 llIGHTS AS AGAINST PRIOR MORTGAGE. lG4i the mortgagor's ten?.nt to crops planted by him has been denied by the textbook writers on the ground that he is in the position of a disseisor, a mortgagor allowed to remain in possession having no right to make leases, and that consequently, upon entry by the mortgagor, it is as if a disseisee had re-entered upon a dis- seisor.^^ There seoms to have been no actual decision in that country on the question whether the tenant is so entitled.^^ In this country, also, the right of the mortgagor's tenant to crops, as against one claiming under foreclosure, has been denied in a number of cases, usually upon the ground that the mortgagor cannot, by a lease, give to another a right in this respect which he has not himself.*"* Conversely, in several states in which the mortgagor is regarded as entitled to the crops, the same right has been recognized in his tenant.^'^ M Powell, Mortgages, 158, 161 a, Coventry's notes; Coote, Mortgages (4th Ed.) 706. »5 In Keech v. Hall, 1 Doug. 22, Lord Mansfield refused to decide this question. 99 I^ane v. King, 8 Wend. (N. Y.) 584, 24 Am. Dec. 105; Howell v. Schenck, 24 N. J. Law (4 Zab.) 89; Reily v. Carter, 75 Miss. 798. 23 So 435. 65 Am. St. Rep. 621; Reed v. Swan. 133 Mo. 100. 34 S. W. 483 Fowler v. Carr, 63 Mo. App. 486 Downard v. Groff, 40 Iowa, 597 Martin v. Knapp, 57 Iowa. 336. 10 N. W. 721: Wheeler v. Kirke-ndall, 67 Iowa. 612. 25 N. W. 829; Sfanbroush V. Cook. 83 Iowa, 705. 49 N. W. 1010; Goodwin v. Smith. 49 Kan. 351, 31 Pac. 153, 17 L. R. A. 284, 33 Am. St. Rep. 373. 97 It is so decided in Heavilon v. Farmers' Bank, 81 Ind. 249, distin- guishing Jones V. Thomas. 8 Blackf. (Ind.) 428, contra, as having been decided when the legal title was re- garded as in the mortgagee. It is here said that probably the tenant could not claim crops planted by him after the foreclosure sale was made, or. perhaps, advertised. In Monday v. O'Neil, 44 Neb. 724. 63 N. W. 32, 48 Am. St. Rep. 760, the ten- ant was given crops planted after the decree of foreclosure, but there the purchaser at foreclosure sale had permitted him to retain posses- sion until after the crop was harv- ested by him. In Brown v. Leath, 17 Tex. Civ. App. 262, 42 S. W. 655, 44 S. W. 42, the lease of the land seems to be regarded as effecting a sevorance of the crops, so as to take ihem from out of the opera- tion of the mortgage. Occasionally the tenant's right to the crops is based on the appraisement law. Cassilly v. Rhodes, 12 Ohio, 88, 40 Am. Dec. 466. See Monday v. O'Neil, 44 Neb. 724, 63 N. W. 32, 48 Am. St. Rep. 700, ante, note 89. In Hecht v. Dcttman, 56 Iowa, 679, 7 N. W. 495. 10 N. W. 241, 41 Am. Rep. 131; Richards v. Knight, 78 Iowa, 69, 42 N. Y/. 284, 4 L. R. A. 453; Caldwell v. Alsop, 48 Kan. 571, 29 Pac. 1150, 17 L. R. A. 782; Porche V. Bodin, 28 La. Ann. 761, the mort- gagor's tenant "was re,»?arded as en- titled to the crops sown by him on 161G CROPS. § 252 If the tenant has actually severed the crops before such pur- chaser acquires title or possession, he may, aeeordin'^ to cases in this country, retain them as afjainst such purchaser,"^ and ac- cording to a few decisions a constructive severance, by a con- veyance or transfer to a third person, is sufficient to divest the rifjhts of the purchaser at foreclosure sale."'' In one state tho statute expressly reserves the tenant's right to the crops as against a purchaser at a sale under a power in a mortgage. '<*•' Occasionally, in discussing the tenant's rights, it has been sug- gested or stated that, as liis estate comes to an end at a time wiiich he could not have ascertained at the time of planting the crops, and without any act on his part to produce this result, the com- mon-law doctrine of emblements* ^^ should be ai)i)lied in his the ground that they were matured at the time of the foreclosure sale. See ante, note 93. 98 Johnson v. Camp, 51 111. 219 (but compare Anderson v. Strauss, 98 III. 485); Allen v. Elderkin. 62 Wis. 627. 22 N. W. 842; Yeazel v. White. 40 Neb. 422. 24 L. R. A. 449; Reily v. Carter, 75 Miss. 798, 23 So. 435. 65 Am. St. Rep. 621. It is so decided in Gray v. Worst, 129 Mo. 122. 31 S. W. 585, but there the deci- sion is based on the special lan^iage of the statute. In Gregory v. Rosen- krans. 72 Wis. 220. 39 N. W. 378. 1 L. R. A. 176, this rule was applied In favor of a tenant in connection with an "ice crop" cut by him, as against a purchaser at foreclosure. 99 Dail V. Freeman, 92 N. C. 351; Hershey v. Metzgar, 90 Pa. 217. See Caldwell v. Alsop, 48 Kan. 571, 29 Pac. 1150, 17 L. R. A. 782; Willis V. Moore, 59 Tex. 628, 46 Am. Rep. 284. But eee to the contrary Bat- terman v. Albright. 122 N. Y. 484, 25 N. E. 856, 11 L. R. A. 800, 19 Am. St. Rep. 510; Sexton v. Breese, 135 N. Y. 387, 32 N. E. 133; Shepard v. Philbrick, 2 Denio (N. Y.) 174; Beckman v. Sikes, 35 Kan. 120, 10 Pac. 592, 57 Am. Rep. 145; Ander- son T. Strauss. 98 111. 485; Thomp- f5on V. Union Warehouse Co., 110 Ala. 499. 18 So. 105. i'>oMis.souri Rev. St. 1809. § 4355. See Reed v. Swan. 133 Mo. 100, 34 S. W. 483. In Pennsylvania the provisions of the execution law of that state that the lessee in posspssion at the time of the sheriff's deed should become the tenant of the purchaser, and that he should give up possession in three months on notice from the purchaser, '.vere regarded as making him in effect a tenant at will of the purchaser and as so entitling him to emblements, though sowing after the sale. Bittinger v. Baker, 29 Pa. 66, 70 Am. Dec. 154. That this deci- sion is based on the local statute (see Adams v. McKesson's Ex'r, 53 Pa. 81. 91 Am. Dec. 183) is lost sight of in Dollar v. Roddenbery, 97 Ga. 148, 25 S. E. 410, and Hoavilon v. Farmers' Bank, 81 Ind. 249, whore it is cited as sustaining the proposi- tion that, apart from any statute, the tenant's rights take precedence of those of a purchaser at a sale un- der a judgment prior to the lease. 101 See ante, § 251. ^252 RIGHTS AS AGAINST PRIOR MORTGAGE. 1647 favor.^*^2 Accordinp: to this view, a tenant of a mort^jagor, who has planted and, through the mortgragor 's default, has been en- tered upon by the mortgagee or by a purchaser at a sale under the mortgage, is to be regarded as in a position analogous to that of the lessee of a person having a life estate during widowhood, who, owing to the life tenant's marriage, is entered on by the re- main.lcrman, such lessee being, as before stated,^"* entitled to cmblemonts. On this theory, a tenant of a mortgagor might be regarded as entitled to his crops even in a jurisdiction where the right wouM be denied to the mortgagor hiraself.*^^ The difii- culty, however, remains, that if the crops are to be regarded as an integral part of the st'eurity,^*^^ the mortgagor should not be at liberty to lessen this security by making a lease and so enabling the lessee to take the crops, while himself receiving their equivalent in rent. It does not seem that one acquiring a limited estate from the mortgagor, and so becoming his tenant, should be in any better position than one acquiring a fee simple estate from the mortgagor. In both cases he should take subject to the rights of the mortgagee, provided he has actual or construc- tive notice thereof. The tenant of a judgment debtor has, in at least two jurisdic- tions, been given the rigiit to crops as against a purchaser of the land umier a judgment prior to the lease,i"« the courts adopting the view, which has, as above stated,"^'^ been occasionally assert- 102 Heavilon v. Farmers' Bank, 81 los See ante, at notes 86, 87. Ind. 249; Hecht v. Dettman, 56 loo Heavilon v. Farmers' Bmk, 81 Iowa, 679. 7 N. W. 495, 10 N. W. 241, Ind. 249; Dollar v. Roddenbery, 97 41 Am. R'^p. 131: Yonnc; v. Chand- Ga. 148, 25 S. E. 410; Blltch v. Lee, ler, 102 Me. 251, 66 Atl. 539; Monday 115 Ga. 112, 41 S. E. 275, 57 L. R. V. O'Neil. 44 Neb. 724, 63 N. W. 32, A. 752. In Dail v. Freeman, 92 N. 48 Am. St. Rep. 760; Dollar v. Rod- C. 351. the deci.ion that the pur- denbery, 97 Ga. 148, 25 S. E. 410. chaser at sale under the Hen Is not See Gray v. Worst, 129 ^To. 122, 31 S. entitled to the crops is based on the W. 585, and Bittinper v. Baker, 25 theory that there was a prior con- Pa. 66, 70 Am. Dec. 154. structive severance by the giving of 103 See ante, note 51. an agricultural lien on the crops. 104 Such seems to be the law In In Bitiinger v. Baker, 29 Pa. 66. 70 Pennsylvania. See Bittinger v. Am. Dec. 154, there is a decision to Baker, 29 Pa. 66, 70 Am. Dec. 154; that effect, based on a local statute. Miller v. Clement, 40 Pa. 484; Mc- An^e. note 100. Keeby v. Webster, 170 Pa. 624, 32 i»- See ante, at note 90. AU. 1096. 1648 CROPS. § 253 ed in the case of a mortgage, that where there is a lion merely, without any legal title in the creditor, a sale under the lien does not pass the crops. The tenant of one in possession adversely to the rightful owner has presumably the same rights as to the crops, as against the latter, as his hmdlord would have had if the lease had not been made. That is, according to the decisions in this country, he would, it seems, have the right to crops severed by him before re-entry or recovery of possession in ejectment by the rightful owner,' 08 while he would have no such right as to crops which are still growing at the time of his dispossession.^'^® § 253. Agreements for the division of crops. a. General considerations. AVe have in another place consid- ered the question of the ditference between a lease, with a pro- vision that a share of the crops shall go to the lessor, and a con- tract for the division of crops between the landowner and the cultivator, without the creation of the relation of landlord and tenant between them.'^'' AVe shall here consider the nature of the relation created by a contract of the latter sort, and then discuss the rights of the parties as to the crops, before their division, in the case both of a lease for a share of the crops and of a mere "cropping contract." The view is quite frequently asserted, expressly or by implica- tion, that if the cultivator cannot, in the particular case, be re- garded as the tenant of the landowner, he must necessarily sus- tain to him the relation of a servant or employee, hired to do work for a share of the crops.' '^ Occasionally, however, it is as- 108 See cases cited ante, note 71. lessee was not in the position of a 109 Rowell V. Klein, 44 Ind. 290, 15 trespasser because he acted in good Am. Rep. 235. See Sedgwick & faith. But qv.acre as to this. Wait, Trial of Title to Land. § no See ante, §§ 10, 20. 683, and cases cited 12 Cyclopedia m Burgie v. Davis, 34 Ark. 179; Law & Proc. 977. Tinsley v. Craige, 54 Ark. 346, 15 In McKean v. Smoyer, 37 Neb. 694, S. W. 897, IG S. TV. 570; Williams v. 56 N. W. 492, it appears to have Cleaver, 4 Houst. (Del.) 453; Chase been decided that a lessee who plant- v. McDonnell, 24 111. 236; Gray v. ed a crop was entitled to recover it Robinson, 4 Ariz. 24, 33 Pac. 712; Gra- from one who had a prior lease for ham v. Houston, 15 N. C. (4 Dev. the same year from the same les- Law) 232; Richards v. Wardwell, 82 sor, and who was consequently en- Me. 343, 19 Atl. .»63; Reeves v. Han- titled to possession of the land. The nan, 65 N. J. Law, 249, 48 Atl. 1018; opinion says that such subsequent McKenzie v. Sykes, 47 Mich. 294, 11 § 253 AGREEMENTS FOR DIVISION. 1649 serted that their relation is, if not tliat of landlord and tenant, that of parties to a joint adventure,ii2 and this view seems more in accordance with the probable intention of the parties in the ordinary case, since if the "cropper" is to be regarded as a servant merely, he would, it seems, be subject to the absolute con- trol of the landowner as regards the manner of sowing and cul- tivating the land, and his failure to comply with the latter 's in- structions would be ground for the termination of the contract by the latter, that is, for the servant's discharge. It may, how- ever, clearly appear from the contract that the work is so to be done under the supervision and control of the landowner, in which case it is most properly to be regarded as one of eraployment.^i^ An agreement of this character by which the landowner and the cultivator are to divide the crops between them does not make them partners.^ ^^ It contemplates a sliaring of the gross retui-ns and not of the profits of the undertaking."'* N. W. 1C4; steel v. Frick, 56 Pa. 172, 94 Am. Dec. 51 ; Mann v. Taylor, 52 Tenn. (5 Heisk.) 267; Smith v. Rice, 56 Ala. 417 (semble) ; Rake- straw V. Floyd. 54 S. C. 288, 32 S. E. 419. 112 Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415; Laiiyon v. Wood- ward, 55 Wis. 652, 13 N. W. 883; Bovrers v. Graves & Vinton Co., 8 S. D. 385, 66 N. W. 931, 59 Am. St. Rep. 766. The case of Herskell v. Bush- nell, 37 Conn. 36, 9 Am. Rep. 299, is apparently to the effect that such may be the relation. In Lewis v. Wilkins, 62 N. C. 303, such a con- tract was said to create "a sort of agricultural partnership." 113 As, for instance, in Huff v. Watkins, 15 S. C. 82, 40 Am. Rep. 680; McCutchen v. Crenshaw, 40 S. C. 511, 19 S. E. 140. And such ap- iparently was the contract in Maver- ick v. Lewis, 3 McCord Law (S. C.) 211; Bryant v. Pugh, 86 Ga. 525, 12 S. E. 927. See ante, § 20, at note 115. in Gardenhire v. Smith, 39 Ark. 280; Romero v. Dalton, 2 Ariz. 210, 11 Pac. 8G3; Smith v. Schultz, 89 Cal. 526, 26 Pac. 1087; Parker v. Fergus, 43 111. 437; Jeter v. Penn, 28 La. Ann. 230, 26 Am. Rep. 98; Williams v. Rogers, 110 Mich. 418, 68 N. W. 240; Putnam v. Wise, 1 Hill (N. Y.) 234, 37 Am. Dec. 309; Perriue v. Hankinson, 11 N. J. Law (6 Halst.) 181; Rose v. Buscher, 80 Md. 225, 30 Atl. 637; Donnell v. Harshe, 67 Mo. 170; Day v. Stevens, 88 N. C. 83, 43 Am. Rep. 732; Brown v. Jaquette, 94 Pa. 113, 39 Am. Rep. 770; Freeman v. Gordon, 59 111. App. 189; Mann v. Taylor, 52 Tenn. (5 Heisk.) 267. 115 See Parsons, Partnership (4th Ed.) § 61, note; 22 Eng. & Am. Enc. Law (2d Ed.) 45; Burdick, Partner- ship, 23. North Carolina Code, Revlsal 1905, § 1982, provides that no lessor of property, merely by reason that he is to receive as rent, or compen- sation for its use, a share of the proceeds or net profits of the busi- ness in which it is employed, or any L and Ten. 104. 1050 CROPS. 5 253 Not infrequently the lease, thougli prnvidinj? for a division of the crop, also provides that until ilivision tlie title to th.^ crop shall be in the landlord. Tliis in elVect gives him a Vwn on the whole crop to secure the delivery to hira of his share."" There are one or two dictay and perhaps one decision,''^ to the effect that under an agreement for the division of crops the parties may be tenants in common of the land as well as of the erops. Sueh a relation would, no doubt, be created between the parties if it clearly appears to be intended, the agreement being construed in effect as involving a demise by the landowner to the cultivator of an undivided interest in the land, but this result cannot be regarded as ordinarily within the contemplation of the parties, and such a construction of the agreement has but seldom been oven su'/ ires ted. b. Tenancy in common in crops. Tlu- (piestion most fre(|uent- ly discussed in connection with agreements for the division of crops between the landowniT and the cultivator has bi-en with regard to the rights of the parties in the crop before division. If one party has title to the whole crop to the exclusion of the other, he may, it is evident, by a transfer or mortgage thereof to an innocent purchaser, deprive the other party of his share, or the former's creditors may levy thereon, and so put it out of his power to deliver to the other party the latter 's agreed share. Furthermore, the character of the rights of the respective parties to the crop before division will affect the char.icter of the reme- dies which may be adopted by one in case the other undertakes to deprive him of his share. A number, perhaps the majority, of the courts, recognizing the possibility of the loss by one party of the share to which his agreement entitles him, if the whole title is regarded as being vested in the other, have asserted the doctrine that before division the tw^o parties are tenants in com- mon of the crop, that is, that each has an undivided interest other uncertain consideration, shall Am. St. Rep. 171; De Loach v. Delk, be held a partner of the lessee. In 119 Ga. 884. 47 S. E. 204. Georgia, likewise, the view that "« See post. § 322 a, at note 463. , . . ^„„, „.,^„ 11" Warner v. Abbey, 112 Mass. there is no partnership m such case ^' 355; Wells v. Hollenbeck, 37 Mich, is in part, at least, based on statu- ^^^ (semble). tory provisions. See Padgett v. n<^ narrower v. Heath, 19 Barb. Ford, 117 Ga. 508, 43 S. E. 1002. 97 (N. Y.) 331. §253 AGREEMENTS FOR DIVISION. 1651 therein ^vhich is subject to his sole control, this view being per- haps more frequently based in terms upon grounds of expediency than upon the construction of the particular agreement. This view that the parties are tenants in common of the crops, has been' most frequently taken in cases in which the agreement was not re-arded as involving a demise, creating the relation of land- lord and tenant,"^ but in some cases, even though the cultivator is expressly stated to be a tenant, a tenancy in common m the crops is recognized as existing.^^^ Oc.usionally such tenancy 119 Hare v. Celey. Cro. Eliz. 143: Smith V. Rice, 56 Ala. 417; Adams v. Thornton. 1 Cal. App. XVIII. 82 Pac. 215; Herskell v. Bushncll. 37 Conn. 36. 9 Am. Rep. 299; Alwood v. Ruck- man. 21 111. 200; Creel v. Klrkham. 47 111. 344; Fiquet v. AUis^on. 12 Mich. 328, 86 Am. Dec. 54; Loomis V. ONeal, 73 Mich. 582, 41 N. W. 701; Taylor v. Bradley, 39 N. Y. 129,' 100 Am. Dec. 415; Delaney v. lioot, 99 -Mass. 546. 97 Am. Dec. 52; Reed V. McRill, 41 Neb. 206. 59 N. W. 775: Reynolds v. Reynolds. 4S Hun (N. Y.) 142; De Mott v. Hager- man. 8 Cow. (N. Y.) 220, 18 Am. Dec. 443; Caswell v. Distrlch. 15 Wend. (N. Y.) 379; Putnam v. Wise. 1 Hill (N. Y.) 234. 37 Am. Dec. 309; Armstrong v. Bicknell. 2 Lans. (N. Y.) 210; Guest v. Opdyke. 31 N. J. Law. 552; Reeves v. Hannan. 05 N. J. Law, 249. 48 Atl. 1018; Doty v. Heth. 52 Miss. 530; Romero v. Dalton. 2 Ariz. 210. 11 P^c. 863; Jones V. Chamberlin. 52 Tenn. (5 Heisk.) 210 (semble); Botts v. Rat- liff. 50 Miss. 561; Mes~in-er v. Union Warehouse Co., 39 Or. 546, 65 Pac- 808; Lowe v. Miller. 3 Grat. (Va.) 205, 46 Am. Dec. 1S8; Stedman v. Gas^elt, 18 Vt. 3^6; Aiken v. Smith, 21 Vt. 172; Cutting v. Cox, 19 Vt. 517; Mead v. Owen. 80 Vt. 273. C7 Atl. 722. 12 L. R. A. (N. S.) 655. Where the cultivator, in such a case, makes a contract with another person for the latter to do part of the work for a part of his share, all the parties become tenants in com- mon in the crops, it has been de- cided. Tripp V. Riley, 15 Barb. (N. Y.) 333; Putnam v. Wise. 1 Hill (N. Y ) 234. 37 Am. Dec. 309. In Moore v. Spruill, 35 N. C. (13 Ired. Law) 55, the landowner and cultivator were regarded as "joint owners." with the result that the survivor could dispose of the crop. isoBaughman v. Reed. 75 Cal. 319, 17 Pac. 222, 7 Am. St. Rep. 170; Jones V. Durrer. 96 Cal. 95. 30 Pac. 1027; Smith v. State, 84 Ala. 438, 4 So. 683. 5 Am. St. Rep. 381 (sem- ble) ; Tinsley v. Craige, 54 Ark. 346. 15 S. W. 897. 16 S. W. 570; Connell v. Richmond, 55 CoTin. 401, 11 Atl. 852 (semble); Ferrall v. Kent, 4 Gill (Md.) 209; Moulton v. Robin- son. 27 N. H. 550; Carr v. Dodge. 40 N. H. 403; Brown v. Lincoln, 47 N. H. 468; Cooper v. McGrew. 8 Or. 327; Abernethy v. Uhlman (Or.) 93 Pac. 936; Johnson v. Hoffman, 53 Mo. 504 ; Moser v. Lower, 48 Mo. App. 85 ; Mouser v. Davis, 11 Wkly. Law Bui. (Ohio) 249; Fagan v. Vost, 35 Tex. Civ. App. 528, 80 S. W. 6G4; Rent- frow v. I^ncaster. 10 Tex. Civ. App. 32, 31 S. W. 229; Horsley v. Moss, 5 Tex. Civ. App. 341. 23 S. W. 1115; Brarlley v. Arnold, 16 Vt. 382. And 1652 CROPS. §253 in common is stated to exist, witlioiit any reference hoin? made to the question whether the cultivator is to be regarded as a tenant of the landowner as regards the land.^^i We will consider this question, of the existence of a tenancy in common in the crci that U two persons enter into an agreement for the manufaeture or pro dletL of any elass of property, each party contr>butmg labor tterials, or capital for the purpose, they are to be reg^^rde^as tenants in common of the product. Adopting still ano her view, he owner of the land might be regarded as -nveyng to the ci^^ tivator, by his entry into the agreement «■> '"7;;' ^^e it bc- to be produced in the future equal to his stipulated share, it be I^g^rerognized, in most jurisdictions at ^^ast that the owner ^o£ l»nd mav transfer an interest in a crop yet to be plantca. Even ZugTthe agreement be verbal, it might thus, it seems fa\-e effect^s a transfer of an interest ^^/f^^l^^^^'.^Zto erops (frudus MustriaUs) not being regarded as land within the Statute of Frauds.'" . , As regards the existence of a tenancy in common m the crops when he relation of landlord and tenant exists between the Twuer th Ld and the cultivator on shares, the cases are by nrmoans in unison. As before stated,-- there are a number o d e"ions in whieh the landlord and tenant have b-^-f 'even as enants in common of the crop. But there arc perhaps even Irrcases in which the two relations arc regarded as ineon- ., M,nn. sot, . N. -.-•,,-/- ^ U^ia'^'/r^cT 3t .TZ Mass. 54C. 97 Am^Dec. ^^ and took .away his own half. E. 812; Caruthers v. Williams, 53 Mo. The mere attachment of the culti- App. 181; Gore v. Gardner (Tex. Civ. vator's undivided share does not App.) 68 S. W. 520. effect a division, though the officer 157 Durdin v. Hill, 75 Ga. 228, 58 takes the stipulated portion of the §253 AGREEMENTS FOR DIVISION. 1659 the title to the stipulated share in the landlord, has not frequently been the subject of litigation. If the tenant is in terms required merely to separate the landlord's share on the premises, this, it seems is sufficient to vest in him the title thereto.^^s A mere placing of the whole crop, without any division, in the place named for delivery of the landlord's share, is not a compliance with the tenant's contract to deliver.^^^ The parties may waive a provision in regard to the mode of division of the crop, and one who has assented to the division, as made, cannot thereafter question its correctness.^^^ And so if one accepts a money payment in lieu of his share of ^the crop, he cannot thereafter assert any claim as to the crop.^«i (2) Time of delivery. There are occasional decisions that a yearly crop rent, like a money rent, is payable at the end of the . yearly period i^^"^ It was in eft'ect so decided when the question involved was whether the right to the rent passed on a transfer of the reversion during such period,^^^ and likewise when tlie question involved was that of the time for levy of a distress.^«3 It has, however, frequ.'utly been said that rent payable in a share of the' crop must be delivered within a reasonable time after the harvesting of the croW'' and what is a reasonable time has been said to depend largely on the nature of the crop and the circum- stances of each case, and to be a question for the jury.i«'> It has crop it being provided by the lease also. Chicafro & W. M. R. Co. v. Un- that'tbe crop should be threshed in ard. 94 Ind. 319. 48 Am. Rep. 15. he lamlowner-s barn, and this not That tender of the landlord's havin. been done. Bishop v. Doty, share places the title m h.xn see ^^ 28 Fordyce v. ?Iathom, 57 Mo. 120. 158 In 'Indiana, though it is fully -o Roush v. Emerick SO Ind. 551; recognized that the landlord has no Manwell v. Manwell 14 Vt. 14. [nterest in the crop merely because -^ Freese v. Arnold, 99 Mich. 13. a share thereof is to be delivered to 57 N. W. 1038. him. it is considered that if no de- -^ Conner v. Schricker. 42 Neb. livery of his share is to be made, 656. 60 N. W. 891. hut U is merely to be "laid by" for ^- See ante. § 172 . note 0. him on the premises, his title there- i62 Dixon v. Niccolls. 39 111. 372. to becomes complete when so laid 89 Am. Dec. 312. This was a lease by Hart v. State. 29 Ind. 200. for a year only. And so, if it ii expressly stipulated ic3 Nowery v. Connolly, 29 U. C. Q. that he is "to save and take care B. 39. of" his half of the crop "at cutting "4 See ante. § 172 i, note 201. up time " he t>^-n he-ornes the own-r. inr. Caruthers v. Williams, 58 Mo. Lindley v. Kelley. 42 Ind. 294. See App. 100. In this case it is decided 16G0 CRors. 253 also been said that "unless otherwise provided by agreement, the crop should be divided from time to time, as considerable parts thereof shall be gathered, especially where the gathering of the whole is delayed for a considerable length of time."^"® The tenant is entitled to a reasonable time within which to gather the crop.i^^ The tenant cannot withhold the landlord's share until the lat- ter has paid a claim due the tenant by the terms of the lease, if this is not expressly made a lien on the crop.^*^'* f. Transfer of undivided share. If the cultivator of land "on shares" is, in a particular case, to be regarded as a mere servant, and his share of the crop is merely to be "paid" to him as wages,' ^s he has, it seems, before he has received his share, no interest in the crop, and the validity of a conveyance or mortgage by him of such share may be open to question.^'^^ On the other hand, if that the tenant can show, in an action for the rent, that he made efforts to have the grain threshed and delivered in reasonable time. In Rawlins v. Bush, SO Ga. 5S8, 5 S. E. 634, evidence that the land was unhealthy, and that the tenant and his family and laborers were conse- quently sick, was admitted to show that a reasonable time had not elapsed after the m?>turity of the crops for their gathering and de- livery before the suing out of a dis- tress. iGG Smith V. Tindall, 107 N. C. 88, 12 S. B. 121, per Merrimon, C. J. The opinion proceeds: "There is no reason, orrlinarily, why this shall not be done, and reasons of convenience, economy, safety of the parts of the crop gathered, and se- curity of the rights of the parties interested, strorcly suggest that it should be." And see Brown v. Ad- ams, 35 Tex. 447, to the effect that a crop rent should be paid as the crop is gathered. That by the Iowa statute (Code 1897, § 2991) such a lease termi- nates December 1st does not render the crop rent payable that day, so as to take the case out of Code, § 3056, which provides that no con- tract for the delivery of property in which the time of performance is not fixed shall be converted into a money demand until a demand of performance has been made. John- son V. Shank, 67 Iowa, 115, 24 N. W. 749. 1C7 Holt V. Licette, 111 Ga. 810, 35 S. E. 703. i^Ta Rohrer v. Babcock, 126 Cai. 222, 58 Pac. 537. 168 See ante, at note 111. 169 That it is valid is decided In Beard v. State, 43 Av'k. 284; Parks V. Webb, 48 Ark. 293; McGee v. Pit- zer, 37 Tex. 27. Contra, Bryant v. Pugh, 86 Ga. 525, 12 S. E. 927; Mc- Neely v. Hart, 32 N. C. (10 Ired. Law) 63, 51 Am. Dec. 377. In most jurisdictions, no doubt, the cultiva-' tor may transfer, bv way of security or nb-^ohitelv, h's claim against the landowner to have a share of the S 253 AGREEMENTS FOR DIVISION. 1661 he is to be regarded as a tenant in common of the crops, he may no doubt convey or mortgage his undivided interest.!'*^ In the case of a tenancy, as distinguished from a mere crop- pin'^ contract, the tenant is, as before stated,!'^ by perhaps the majority of the cases, regarded as the owner of the whole crop to the exclusion of the landlord, and it would seem that, when such is the case, the landlord cannot convey or mortgage any part of the crop before division,'-2 though he could ordinarily transfer his personal claim against the tenant to have the stipu- lated share delivered to him, that is, he could transfer his right to the rent, but not the specific substance with which the rent is to be paid. In one state, however, it has apparently been de- cided that, though the tenant is the owner of the whole crop be- fore division, the landlord has a "mortgageable interest there- in. "^^^ If the landlord and tenant are to be regarded as tenants in common of the crop, the tenant can obviously not convey or mortgage the landlord's share,i74 though he may convey or mort- gage his own share.1'5 The tenant, if regarded as the owner of the" whole crop, may transfer or mortgage it to a third person, even to the injury of the landlord.i^« crop delivered to him, but ttiis is senting opinion, written by Gran- evidently not a transfer of an in- ger, J., is a most forcible one. The terest in the crop. case of Potts v. Newell. 22 Minn. 5C1 170 Ciirtner v. Lyndon. 128 Cal. 35. cited in the opinion of the court, 60 Par 4G2- McGee v. Fitzer. 37 Tex. supports the decision, though in the 27- Aiken V Smith 21 Vt. 172; Deni- Minnesota case there is no discus- son V Sawyer. 95 Minn. 417. 104 N. sion of the question. Howell v. W 305; Alexan^ier v. Ziegler. 84 Pugb, 27 Kan. 702; Horseley v. Moss. Miss SCO. 36 So. 536. One to whom 5 Tex. Civ. App. 341, 23 S. W. 1115. the cultivator has transferred his and Ferrall v. Kant, 4 Gill (Md.) share of the crop, a purchaser in 209. also cited in the Iowa case, are good faith, cannot be affected, as decisions, apparently, that the land- regards his rights in the crop, by lord and tenant have joint interests the cultivator's subsequent abandon- in the crops, in accordance with the ment of the contract. Kiplinger v. authorities cited ante, note 120. Green, 61 Mich. 340. 28 N. W. 121, 1 1^4 Sunol v. Molloy. 63 Cal. 369. Am. St. Rep. 584. ^" Sunol v. Molloy, 63 Cal. 369. m See ante, note 130. i-« Holmes v. Holifield. 97 111. App. 172 See Orr^utt v. Moore, 134 Mass. 185; Doremus v. Howard, 23 N. J. 48 45 Am Rep. 278, to this effect. Law (3 Zab.) 390. In the former 173 Riddle v. Dow, 98 Iowa, 7, 66 N. case the fact that the tenant's raort- W 1066 32 L. R. A. 811. The dis- gagee did not know of the landlord's 1662 CROPS. 253 If the landowner and cultivator are to be regarded as tenants in common of the crop, whether or not the relation of tenancy exists, a mortgagee of the interest of either becomes a tenant in common with the other, having the same rights as the mortgagor with reference to the crop.^'^'^ g. Rights of creditors. The creditors of either part.v sta.nd in the same position as the party himself, and if, until delivery of his share, the title in no part of the crop is vested in the land- lord, his creditors cannot levy upon it.^^^ Conversely, if the title to the whole crop is in the landowner, the creditors of the culti- vator cannot levy thereon. ^"^ And if they are tenants in common of the crop, the share of each is alone subject to the claims of his creditors.^s^ If the whole crop is regarded as belonging to the tenant before division, it is subject as a whole to a levy by his creditors, although the effect be to deprive the landlord of his share.^81 Upon delivery to the landlord of the share which he is to re- rights was regarded as material up- on the question of priority. 177 Sunol V. Molloy, 63 Cal. 369; Ahernethy v. Uhlman (Or.) 93 Pac. 936; McGee v. Fitzer, 37 Tex. 27. It has heen decided that if a ten- ant delivers a part, not exceeding his own share, to one to whom he had previously conveyed such share, and an equal part to the landlord, the latter cannot take the part thus delivered to the other, even though this, v/ith the part delivered to him, does not exceed the share of the whole crop to which he is entitled. Hopper V. Haines, 71 Md. 64, 18 Atl. 29. 20 Atl. 159. 178 Hansen v. Dennison, 7 111. App. (7 Bradw.) 73; Williams v. Smith, 7 Ind. 559; Ream v. Harnish, 45 Pa. 376; Gordon v. Armstrong, 27 N. C. (5 Ired. Law) 4^9; Devore v. Kemp, 3 Hill Law (S. C.) 259. In Flournoy V. Wardlaw, 67 Ga. 378, it was held that even thousrh the tenant had the crop, consisting of cotton, placed in the landlord's gin house, and the latter, acting as the tenant's agent, had it carried to town, where it was inadvertently placed in the ware- house of the landlord's creditor, the latter could not levy on it. The landlord's creditors can reach his share only by garnishing the tenant. Howard County v. Kyte, 69 Iowa, 307, 28 N. W. 609. 179 Chandler v. Thurston, 27 Masg. (10 Pick.) 205; Gray v. Robinson, 4 Ariz. 24, 33 Pac. 712; Wanamaker V. Buchanan, 33 Pa. Stiper. Ct. 138. 180 Stickney v. Stickney, 77 Towa, 699. 42 N. W. 518: Case v. Hart, 11 Ohio, 364, 38 Am. Dec. 735. isi Deaver v. Rice, 20 N. C. (4 Dev. & B.) 567, 34 Am. Dec. 388; Turner V. Bachelder, 17 Me. 257; Sargent v. Courrier, 66 111. 245. Atkins v. Womeldorf. 53 Iowa. 150, 4 N. W. P05, is to the contrary, but there the decision seems to be based upon the existence of the statutory Hen for rent in favor of the landlord. AGREEMENTS FOR DIVISION. § 253 ceive, the title therein is vested in him, and it becomes subject to the claims of his creditors,^^^ while it is thereby placed out ot the reach of the tenant's creditors.iss , , . . In a few jurisdictions there are statutory enactments deigned to protect the share of one party in the crop from hab.hty for ^^^;"E;tt^:rof n^hts as .et^een the parties Since the noss..ssion of the land, in the case of a lease by wlaeh a share of thT op is reserved, is in the tenant, the landlord has no nght to goTn the land for the purpose of taking his share ot he crop'- and this has been decided to be the case even when the crop; are likely not to be harvested at all, owing to the tenant s neXc - though there are other decisions supporting a con Trary V ew-^ Nor has the landlord a right to any part of the rop even'though the crop has been harvested and stored m a i82Hartv. State. 29 ind. 200. So. in the case of a mere cropping ron^ tract, upon delivery to the tenant o his share, it becomes subject to his debts. Crocker v. Cunningham. 122 Cal. 547, 55 Pac. 404. is.3Durdin V. Hill. 75 Ga. 2?8 58 Am. Rep. 467; Symonds v. Hall. 37 Me. 354. 59 Am. Dec. 53. 184 In Kansas (Gen. St. 19t&. S ^834) it is provided that a sale un- der execution against a tenant does not affect the landlord's interest. And in Ohio (Ann. St. 19T)6. § 6679) and Oklahoma (Rev. St. 1903. § 5080). it is provided that the interest of the landlord or tenant shall not be affected by an execution agam£t the other, but the crops may be sold subject to his claim. In Nebras- ka (Ann. St. 1907, § 2018) there is a substantially similar provision. In Georgia it is provided (Code 1895. § 3127) that when the tenant is to pay a part of the crop for rent, any part of the crop delivered in good faith to the landlord by the tenant shall be free from the lien of any judgment, decree or other process against the tenant. It is also pro- vided in this state (Code, § 3129), that when the relation of "landlord and cropper" exists, the title to, and right of control of. the crops, shall he vested in the landlord until he has received his share and has been repaid all advances made by him to assist in making the crops. 185 Blake V. Coates. 3 G. Greene (Iowa) 548: Dockham v. Parker, 9 Me. (9 Greenl.) 137, 23 Am. Dec. 547. Compare ante, § 3 b (2), at notes 56- 60. 186 Wadley v. Williams, 75 Ga. 272. 187 See Secrest v. Stivers, 35 Iowa. 580, v.'here it was held that the land- lord may harvest the crops in such case and may include the cost of doing so in bis claim for a lien, as being part of the rent. In Charles V. Davis, 59 Cal. 479, it is said that if the landlord harvests the crop in such car,e, and the cost of so doing exceeds the value of the crop, the lessee has no further interest there- in. To the same effect is Beckwith V. Carroll, 56 Ala. 12. 1664 CROPS. § 253 place accessible to him, if there has been no separation of the shares and the title is consequently to be regarded as still solely in the tenant.^^^ If the relation of tenancy does not exist, and the parties are to be regarded as tenants in common of the crop, either may, it seems, after the crops are matured, take his share from the land.189 One tenant in common of chattels cannot ordinarily maintain an action of trespass in regard thereto, and this doctrine has been applied as between tenants in common of crops raised by one on the other's land.^^^ So if the parties are tenants in com- mon of the crop, one cannot ordinarily bring trover as for a con- version of his share, unless the other has actually disposed of or destroyed the crop.i^^ And likewise, one tenant in common of 188 Cunningham v. Baker, 84 Ind. 597. 180 See Com. v. Rigney, 86 Mass. (4 Allen) 316; Walker v. Fitts, 41 Mass. (24 Pick.) 191; Messinger v. Union Warehouse Co., 39 Or. 546, 65 Pac. 808. 100 Wells V. Hollenbeck, 37 Mich. 504; Daniels v. Brown, 34 N. H. 454, 69 Am. Dec. 505. But that the land- lord may bring trespass if the ten- ant, in violation of his agreement, sells the crop, see Willmarth v. Pratt, 56 Vt. 474, citing Briggs v. Bennett, 26 Vt. 146; Gray v. Stevens, 28 Vt. 1, 65 Am. Dec. 216. When the crop is not regarded as the joint prop- erty of the landlord and tenant, the latter, being entitled to the pos- session of the whole crop, may main- tain trespass for damage done to the crop by the landlord. Frout v. Hardin, 56 Ind. 165, 26 Am. Rep. 18. 101 Williams v. Nolen, 34 Ala. 167; Strong V. Colter, 13 Minn. 82 (Gil. 77); Rector v. Anderson, 96 Minn. 123, 104 N. W. 884; Carr v. Dodge, 40 N. H. 403; Richards v. Wardwell, S2 Me. 34a 19 Atl. 863; Stafford v. Ames, 9 Pa. 343; Hurd v. Darling, 16 Vt. 377; Tignor v. Toney, 13 Tex. Civ. App. 518, 35 S. W. 881. Compare Neilson v. Slade, 49 Ala. 253, 20 Am. Rep. 275; Marlowe v. Rogers, 102 Ala. 510, 14 So. 790; McClure v. Thorpe. 68 Mich. 33, 35 N. W. 829; Northness v. Hillestad, 87 Minn. 304, 91 N. W. 1112; Burns v. Winchell, 44 Hun (N. Y.) 261; Stafford v. Ames, 9 Pa. 343; Fagan v. Vogt, 35 Tex. Civ. App. 528, 80 S. W. 664, cases in which an action of trover or for con- version was sustained. In Parker v. Brown, 136 N. C. 280, 48 S. E. 657, it appeared that the tenant died before completing the crop, and it was held that his rep- resentative could, upon the land- lord's denial of any rights in the latter, recover "by a civil action" the value of the tenant's share, less the amount of advancements made by the landlord, and "such damage as he may have sustained by reason of the inability of the lessee to per- form his contract." It does not clearly appear whether the recovery is based on the theory that a part of the crop belonged to the tenant, or on the theory that the landlord 253 AGREEMENTS FOR DIVISION. 1665 the crop cannot usually bring replevin against the other to re- cover his share therein, he having no right to the exclusive pos- session.i»2. 193 The question of the circumstances under which these various possessory actions are available to one joint owner of personalty against the other is one on which the decisions are by no means in unison, and the fact that in the particular case crops are the subject of the joint ownership, and that this is the result of an agreement between landowner and cultivator, is en- entirely immaterial. It has been decided in several cases that, though the parties are tenants in common of the crop, either may maintain assumpsit upon the other's refusal to deliver his share.i»^ The action in such case is; it seems, to be regarded as based upon a contract, either express, or necessarily invoived in such an agreement for the division of the crops, to allow the other to have the stipulated share, rather than upon any mere legal duty arising out of their relations as tenants in common. On the other hand, it was in one case decided that assumpsit will not lie in favor of a landlord against a tenant who had disposed of the crop, it not appearing that the parties had adjusted their rights respecting such corn- had agreed to deliver such part to him. The crop was completed by the landlord at the request of the representative of the tenant, and perhaps the decision can best be re- garded as involving a recovery for the conversion of the share belong- ing to the tenant's representative, subject to a set-off in favor of the landlord for the value of his services in completing the crop at the ten- ant's request. 192, 193 Reeves v. Hannan, 65 N. J. Law, 249, 48 Atl. 1018; Lacy v. Weav- er, 49 Ind. 373, 19 Am. Rep. 683; Bowen v. Roach, 78 Ind. 361; Tread- way V. Treadway, 56 Ala. 390. Con- tra, Alexander v. Ziegler, 84 Miss. 560, 36 So. 536; Freese v. Arnold, 99 Mich. 13, 57 N. W. 1038. And see Monser v. Davis, 11 Wkly. Law Bui. (Ohio) 249. In Kansas the statute gives the landlord the right to bring replevin for his share. Gen. St. 1905, § 4075. See Tarpy v. Persing, 27 Kan. 745. Even though the title to the crop was, by the express terms of the lease, in the landlord, the right of possession was held to be necessarily in the tenant u^til harvesting and division, so thai the landlord could not maintain replevin against the tenant. Dunning v. South, 62 111. 175. But it has been decided that when tte landowner was entitled to the whole crop, though bound to deliver a share to the cultivator in pay for his services, he could recover in replevin for the whole crop. Kel- ly V. Rummerfield, 117 Wis. 620, 94 N. W. 649, 98 Am. St. Rep. 951. 194 Fiquet v. Allison, 12 Mich. 328, 86 Am. Dec. 54; McLaughlin v. Sal- ley, 46 Mich. 219, 9 N. W. 256; Pearce v. Pearce, 83 111. App. 77. L. and Ten. 105. 16G6 CROPS. § 253 mon property, or that the tenant had received any money or its equivalent for the crop,'*^^ Occasionally an injunction has been issued to restrain one par- ty, who was in possession of the crop, and who was insolvent, from appropriating or disposing of it, so as to deprive the other of his share.^9« And it has been held that the owner of the land may, in case the tenant sells the crop, maintain a bill against him for an accounting of the proceeds of sale, making the vendee a party. 1^'^ i. Actions against third persons. When the landowner and the cultivator, whether a tenancy exists or not, can be regarded as tenants in common of the crop, they may unite in an action against one who injures or removes the crop,!^^ and it has been held that one suing alone may recover if no objection is made for nonjoinder of the other,^^'-* though he can, in such case, recover only for the loss of or injury to his own sharc^"^" If the title to the whole crop is, until division, in one of the parties, it does not seem that the other can have a riglit of action for injuries to the crop, since his claim is contractual merely, a right in personam against the other party to the contract, while such a recovery would presuppose a right in rem. A party to a contract has ordinarily no right of action against a third person for acts rendering the performance of the contract by the other party less valuable to him.-^^ There are, however, cases at least 105 Hunt V. Rublee, 76 Vt. 448, 58 jection if made is valid, see Pruitt Atl. 724. V. Ellington, 59 Ala. 454; Cutting v. i»6 Williams v. Green, 37 Ga. 37; Cox, 19 Vt. 517; Hatch v. Hart, 40 Lewis V. Christian, 40 Ga. 187; N. H. 93. But in the latter case it Schmitt V. Cassilius, 31 Minn. 7, IS was decided that if the cultivator N. W. 453; Parker v. Garrison, 61 abandons possession of the crop or Ijl 250. relinquishes all claim thereto, the 197 Sowles V. Martin, 76 Vt. 180, 56 landowner may sue alone. ^^1 979 200 Texas Pac. R. Co. v. Saunders i*8Foote V. Colvin, 3 Johns. (N. (Tex. Civ. App.) 18 S. W. 793. Y.) 216, 3 Am. Dec. 478; Harris v. 201 That the tenant only can sue Frink, 49 N. Y. 24, 10 Am. Rep. 318; for conversion, see Ream v. Harnish, Decker v. Decker, 17 Hun (N. Y.) 45 Pa. 376. That he may sue alone, 13; Van Hoozier v. Hannibal & St. see Chicago & W. M. R. Co. v. Lin- J. R. Co., 70 Mo. 145; Moulton v. ard, 94 Ind. 319, 48 Am. Rep. 155; Robinson, 27 N. H. 550. Parker v. Hale (Tex. Civ. App.) 78 100 Van Hoozier v. Hannibal & St. S. W. 155. And that he can recover J. R. Co., 70 Mo. 145. That the oh- the full value of the crop destroyea, §253 Agreements for division. 1667 suggesting that a landlord entitled to receive a share of the crop as rent may recover for injuries to the erop.-^^ see Texas & P. R. Co. v. Bayliss, 62 Tex. 570. 202 There is a dictum to that effect in Ohio & M. R. Co. v. Hoeltman, 34 111. App. 429. And in Neal v. Ohio River R. Co.. 47 W. Va. 316, 34 S. E. 914, it is said, without any discus- sion, that one who has leased land for a share of the crop may sue one who damages the crop. It does not appear, however, whether in this case the court did not regard the parties as tenants in common of the crop. That the landlord has no right of action seems to be involved in ths decision, in Holt Mfg. Co, v. Thornton, 136 Cal. 232, 68 Pac. 708, that a third person, when sued by the tenant for delay in performing his contract to harvest the crop for the tenant, cannot assert that a part was to be paid as rent to the land- lord. CHAPTER XXV. CHATTELS ON THE PREMISES. § 254. Lease of land and chattels. 255. Chattels belonging to the tenant. a. Time of removal. b. Failure to remove. § 254. Lease of land and chattels. As we have before remarked,^ not infrequently a lease of land includes therewith chattels, as when a farm is leased with the stock thereon, or a residence is leased with the furniture therein. It is obvious that, in the case of such a lease, the lessee is bound to return the chattels, as well as the land, at the end of the term named, in the absence of any provision to the contrary. Oc- casionally there is an express provision for the return of the chattels leased, and sometimes for the return of either such chattels or chattels similar thereto in kind and value, ^ In two cases, a covenant by the lessee to deliver to the lessor at the end of the term articles of the same value as those re- ceived has been regarded as so absolute in character as to bind the lessee, even though the things received were lost or destroyed without his fault.^ In one of these cases it was held that an ex- ception of "inevitable accident" contained in the lease was not intended to apply to the chattels as well as the land.* But in 1 See ante, § 23 b. As to the ap- the identical animals, so far as these portionment of the rent reserved on -were of a class which It was the a lease of land and chattels, see custom to market each year. ante, §§ 169 c, 180 b (3). 3 Davis v. George, 67 N. H. 393. 2 In Brockway v. Rowley, 66 111. 39 Atl. 979; Smalley v. Corliss, 37 99, it was held that a covenant by Vt. 486. the lessee to return, at the end of * Davis v, George, 67 N. H. 393, 39 the term, "stock" included in the Atl. 979. lease, did not involve his return of §254 INCLUSION IN LEASE. 1669 another case, in a different jurisdiction, an exception, in the cove- nant to re-deliver the premises at the end of the term in as good condition as at the time of the demise, of "damage by the elements" was held to apply likewise to a covenant to return certain chattels on the premises at the end of the term, the lease providing that these should be considered as "part of the prem- ises hereby demised."^ A covenant to return chattels on the premises "in as good con- dition as said articles now are," is, it is said, not broken till the end of the term, if the chattels are merely injured, while if the lessee destroys them, there is an immediate breach, he thus put- ting it out of his power to perform his contract.® A covenant by the lessee to leave all the timber on the premises has been held, on a construction of the covenant, to be broken if he cuts down the timber, although he leaves it on the premises, while it is not broken if it is cut down by a stranger." It has been stated that if one leases live stock for a certain number of years, he retains no such property in them, during the term or afterwards, until their redelivery, that he can make a grant of them to another, he being considered to have merely a possibility of property in case they outlive the term.s This state- ment accords with the view once held that the gift or grant of a chattel personal for a limited time, as distinguished from the gift or grant of the use and occupation of the chattel, transfers the whole property in the chattel f but it can hardly be ques- tioned that such a lease would, at the present day, ordinarily bo construed as involving a grant of the use and occupation only of the live stock, that is, as a bailment, strictly so called, leaving 6 Allen V. Culver, 3 Denio (N. number of years' shearing, which Y.) 284. Compare Scheldt v. Belz, could not include the sheep existing 4 111. App. (4 Bradw.) 431. at the time of the lease. In an- e Fratt v. Hunt, 108 Cal. 288, 41 other report of the same case (Wood Pac. 12. V. Ash, Godb. 112), it is said t'h.r.\ 7Vin. Abr.. Covenant (L 4), pi. the original sheep leased are tho 3, citing Anonymous, Skin. 40. property of the lessor rather than of 8Bac. Abr., Leases (A); Wood v. the lessee, even though there is a Foster, 1 Leon. 42. In this case, stipulation by the lessee to restore, however, the facts were that the at the end of the term, a number lessee of a farm with shepp thereon equal to that included in the lease, covenanted merely to return the » See Gray, Perpetuities (2d Ed.) same number of sheep, of a certain § 822 et seq. 1670 CHATTELS. § 254 the property in tlie live stock in the lessor,^" with full powers of transfer subject to the rights of the bailee. It has been decided, however, in a modern case, that during the term of the lease the lessor has no interest which can be levied on under execution against him, the property being, by reason of the lessee's right of possession, not susceptible of actual seizure.^^ In a case in which live stock was leased with a farm, it was decided that the lessee, even though given the right to return, at the end of the term, either the stock or the value thereof, could not dispose of parts of the stock. ^2 There is, on the other hand, a decision that, where a lease of a farm and of the live stock thereon provided that stock of equal age and quality, though not necessarily the same stock, should be returned at the end of the term, the title to the stock was vested in the lessee and that it was liable for his debts. ^^ The question involved in such cases seems to be, primarily, whetlier the transaction was, as regards the personal property, intended to be a bailment or a sale,^^ and the fact that it was a part of a transaction looking to the leasing of land might perhaps be regarded as tending to show that it was a bailment. In two cases it is assumed, apparently, in the case of a lease 4)t land and chattels with a provision for a return of the chattels or of their equivalent in kind and value, that chattels acquired by the lessee in place of chattels disposed of by him immediately become the property of the lessor.^ ^ In one of these cases it is said that where there is an agreement to return stock and tools of a value equal to that of those leased, it is necessary, on the termination of the lea<=e, to ascertain by agreement or equitable action what part of the personal property on the farm belongs to each.^^ 10 See Gray, Perpetuities, §§ 828- is Carpenter v. Griffin, 9 Paige (N. 855; Smith v. Niles, 20 Vt. 315, 49 Y.) 310, 37 Am. Dec. 396. Am. Dec. 782. 14 See 2 Kent's Comm. 590, and "Smith V. Niles, 20 Vt. 315, 49 „_x„ .^^,^.^. ., , o , 1 note thereto Mechem, Sales, 55 19- Am. Dec. 782. 25 . ss i' 12 Billings V. Tucker, 72 Mass. (6 Gray) 368. See, also, as in accord "Billings v Tucker. 72 Mass. (6 with this case, apparently, Wilson ^^^y) 368; Wilson v. Griswold, 80 V. Griswold, 80 Conn. 14, 66 Atl. 783; ^0°"- 1*. 66 Atl. 783. Smith V. Niles, 20 Vt. 315, 49 Am. le Wilson v. Griswold, 80 Conn. 14, Dec. 782; Downer v. Rowell, 22 Vt. 66 Atl. 783. 347. § 255 BELONGING TO TENANT. 1671 In the case of a lease of land and live stock, as in the case of a bailment of live stock alone, the property in the increase born during that time is in the lessee, even though the original stock may, without the lessee's fault, have died.i'^ It has been decided, however, that where it was provided that the calves raised from the stock should be kept on the farm during the term, and that each part}' should have one-half thereof, the title of the tenant to one-half would not become perfected until the term had come to an end.^^ The question whether a lessee of land and chattels has a right to transfer the cliattels to another for the terra of the lease, as he ordinarily has the right to transfer the land, is to be de- termined, it seems, by the consideration whether the bailment of the chattels can be considered a personal trust.^^ He could not, presumably, in the ordinary case of a lease of land and chattels thereon, give even a temporary right to another to use the chat- tels off the land. On the other hand, he would, it seems, have a prima facie right to transfer his leasehold interest in the chattels together with the land. A contrary view would in effect prevent any assignment by him of his interest in the land, since a trans- fer of the possession of the land without the chattels would in- volve the removal of the latter from the land, in contravention of the evident intention of the parties. One who has leased chattels for a term of years, whether alone or together with land, cannot maintain trespass or trover on ac- count thereof, not being entitled to the immediate possession.^o* § 255. Chattsls belonging to the tenant. a. Time of removal. The common-law authorities are clearly to the effect that a tenant at will has the right of access to the premises, for a reasonable time, for the purpose of removing his goods.2i The reason for such a rule in favor of a tenant at will, 17 Wood V. Ash, Godb. 112; Woods 20 Ward v. Macauley, 4 Term R, V. Charlton, 62 N. H. 649; 2 Kent, 489; Trisony v. Orr, 49 Cal. 612; Comm. 361. Putnam v. Wyley, 8 Johns. (N. Y.) 18 Lewis V. Lyman, 39 Mass. (22 432, 5 Am. Dec. 346. See Hale, Bail- Pick.) 437; Briggs v. Oaks, 26 Vt. ments, p. 197; Schouler, Bailments, 138. § 134. 19 See Bailey v. Colby, 34 N. H. 21 Litt. § 69; 2 Blackst. Comm. 29, 66 Am. Dec. 752; and ante, § 152 147; Com. Dig., Estates, H 9. See a, at note 61. ante, § 13 b (6), at note 437. 1672 CHATTELS. § 255 ^vllo is liable to be deprived of possession by the landlord at any time, without previous notice, is sufficiently obvious. Such a reason does not apply in the case of a tenant for years or from year to year, but nevertheless it has been not infrequently as- serted judicially that a tenant, without naming any particular class of tenant, has a reasonable time for the removal of chattels belonging to him.22 it would rather seem, on principle, that a tenant who knows beforehand when his tenancy will come to an end should remove his chattels during his own possession, and not be allowed to encroach on that of another for this purpose.23 b. Failure to remove. The fact that the tenant fails to re- move his chattels during the tenancy, or within such reasonable time thereafter as may be allowed for removal, does not have the effect of divesting his title.^-* In order to transfer the ownership of goods, something more is necessary than merely leaving them on another's land. Chattels belonging to the tenant, which are not removed by him during the tenancy or within a reasonable time thereafter, may be removed by the landlord, or by a subsequent tenant, to some place in the neighborhood, reasonable care being exercised to avoid injury,25 and such a person is, it has been held, under no obligation further to protect the chattels until the owner chooses to take possession.26 The landlord is liable, however, it seems, as for negligence, if he removes the articles to an obviously un- safe or unsuitable place, unless at least he notifies their owner of such removal.27 In one case it is said to be his duty to have 22 Florala Sawmill Co. v. Parrish Meffert v. Dyer, 107 Mo. App. 462, (Ala.) 46 So. 461; Smith v. Boyle, 66 81 S. W. 643; and ante, § 242 a, note Neb. 823, 92 N. W. 1018. 103 Am. 113. St. Rep. 745; Edghill v. Mankey, 79 2s steams v. Sampson, 59 Me. 568. Neb. 347, 112 N. W. 570, 11 L. R. A. 8 Am. Rep. 442; Rollins v. Mooers, (N. S.) 688; Daniels v. Brown, 34 25 Me. 192; Whitney v. Swett, 22 N. N. H. 456, 69 Am. Dec. 505. To the H. 10, 53 Am. Dec. 228. See Lash same effect is Comyn's Landlord & v. Ames, 171 Mass. 487, 50 N. E. 996. Tenant, 356. 26 Smith v. Boyle, 66 Neb. 823, 92 23 In Cornish v. Stubbs, L. R. 5 N. W. 1018, 103 Am. St. Rep. 745; C. P. 334, an express stipulation that United States Mfg. Co. v. Stevens, a reasonable time shall be allowed 52 Mich. 330, 17 N. W. 934. for removal is held to be valid. 27 See Burk v. Dempster, 34 Neb. 2* Smith V. Boyle, 66 Neb. 823, 92 426, 51 N. W. 976; Whitney v. N. W. 1018, 103 Am. St. Rep. 745; Swett, 22 N. H. 10, 53 Am. Dec. 228. § 255 BELONGING TO TENANT. 1673 a chattel so left on the premises "removed to a place of storage," charging the expense thereof to the former tenant.^^ In another case it is decided that if the landlord, instead of removing the articles, keeps them on the premises, he is entitled to compensa- tion as for storage.29 The landlord is, it has been held, guilty of conversion if he re- fuses to allow the tenant to remove his goods during the tenancy, or at a subsequent time when the latter has a legal right to do so,3o and he is so guilty if he disposes to a stranger of goods which the tenant has left.^i Ilis action in removing the goods in order to deliver them to his former tenant, which he is unable to do, owing to the latter 's refusal to receive them, evidently does not constitute a conversion.32 The landlord can obviously not be held liable for the value of the goods as a purchaser thereof merely because the tenant failed to remove them.33 The landlord is not liable, it has been held, for injuries to the tenant's property caused by blasting operations properly conducted by him on neighboring property, the tenant having re- fused to remove such property at the end of the tenaney.^^'* And it has been decided that, on condemnation of land for railroad purposes, the railway company is not liable for injuries to ar- ticles belonging to a tenant at will, caused by the destruction of the building on the land, he having failed to remove such ar- ticles after reasonable notice.^s Compare ante, § 216 d; post, § 285, and the lessor was held liable for at notes 543-546. the value thereof. 28 Burk V. Dempster, 34 Neb. 426, si Blackwell v. Baily, 1 Mo. App. 61 N. W. 976. 328; Schwulst v. Neely (Tex. Civ. 20 Preston v. Neale, 78 Mass. (12 App.) 50 S. W. 608. Gray) 222. '•^~ Browder v. Phinney, 37 Wash. 80 Smith V. Boyle, 66 Neb. 823. 92 70, 79 Pac. 598. N. W. 1018, 103 Am. St. Rep. 745; 33 Hindman v. Edgar, 24 Or. 581. Watts V. Lehman, 107 Pa. 106; Voss 17 Pac. 862. V. Bassett, 4 Tex. Civ. App. 177, 115 34 Emry v. Roanoke Nav. & Water- S. W. 503; Vilas v. Mason, 25 Wis. Power Co., Ill N. C. 94, 16 S. E. 18; 310. See Morris v. Pratt, 114 La. 98, 17 L. R. A. 699. 38 So. 70, where the goods which sts Lyons v. Philadelphia & R. R. the lessor refused to allow the les- Co., 209 Pa. 550, 58 Atl. 924. Bee to remove were destroyed by fire CHAPTER XXVI. OPTION OF PURCHASE IN TENANT. § 256. Nature and validity of the stipulation. 257. Option as interest in land. 258. Alternative right in lessor. 259. Right of "refusal" in tenant. 260. Conditions for exercise of option. 261. Time for exercise of option. 262. Mode of exercise of option. 263. Payment or tender of price. 264. Exercise as to part of premises. 265. Effect of exercise. 266. Sufficiency of conveyance. 267. Change of parties to the tenancy. 268. Remedy for breach of stipulation. 269. Statutory provisions. § 256. Nature and validity of the stipulation. An instrument of lease quite frequently contains a provision giving the lessee the right to purchase the reversion in the prem- ises should he so desire. The existence of such an option in no way affects the relation of landlord or tenant, nor the latter 's liability for rent/ even though it is afterwards exercised,^ and so the owner of the land may, after giving an option on the land to another, give a lease to the latter Avithout affecting the option.^ That the presence of an option of purchase does not affect the operation of the lease as creating the relation of tenancy is assumed in near}y all the 1 Smith V. Brannan, 13 Cal. 107; and see cases cited ante, § 43 d. Gilbert v. Port, 28 Ohio St. 276; 2 Granger v. Riggs, 118 Ga. 164, 44 Hand v. Williamsburgh City Fire S. E. 983. Ins. Co., 57 N. Y. 41; Clifford v. 3 Wade v. South Penn Oil Co., 45 Gressinger, 96 Ga. 789, 22 S. E. 399. W. Va. 380, 32 S. E. 169. § 256 VALIDITY OF STIPULATION. 1675 cases on the subject, and any statements to the contrary^ must, it is conceived, be based on a misapprehension. The question whether the relation of tenancy is terminated by the actual ex- ercise of the option is referf ed to below.^ A provision of this character is not invalid for want of "mu- tuality" because it binds the lessor to sell and does not bind the lessee to buy.« Nor is there, ordinarily at least, any lack of con- sideration to support the lessor's agreement in this regard, this being supplied by the lessee's agreement to pay rent or assume other burdens in connection with the land.'^ Even apart from any consideration issuing from the lessee, the option would be binding upon the lessor if under his seal.^ The instrument of lease, in giving an option to the lessee to purchase, need not specify the price, but it is sufficient if it pro- vides that the price shall be fixed by appraisement,^ or by the amount which a third person may offer to pay.i<> But the price 4 See Nightingale v. Barens, 47 Wis. 389, 2 N. W. 767; Reader v. Bell. 70 Ky. (7 Bush) 255; Thal- heimer v. Tischler (Fla.) 46 So. 514, infra, note 22. •> See post, § 265. oMarske v. Willard, 169 111. 276, 48 N. E. 290; Lazarus v. Heilman, 11 Abb. N. C. (N. Y.) 93; De Kutte V. Muldrow, 16 Cal. 505. ^ Walker v. Edmundson, 111 Ga. 454, 36 S. E. 800; Hayes v. O'Brien, 149 111. 403, 37 N. E. 73, 23 L. R. A. 555; Howralty v. Warren, 18 N. J. Eq. (3 C. E. Green) 124, 90 Am. Dec. 613; Waters v. Bew, 52 N. J. Eq. 787, 29 Atl. 590; Schroeder v. Gemeinder, 10 Nev. 355; Bank of Louisville v. Baumeister, 87 Ky. 6, 7 S. W. 170; Heyward v. Willmarth, 87 App. Div. 125, 84 N. Y. Supp. 75; Tilton v. Sterling Coal & Coke Co., 28 Utah, 173, 77 Pac. 758, 107 Am. St. Rep. 689. It is immaterial in this re- gard that the rent paid is, in case of exercise of the option, to be applied on the price. Brink v. Mitchell, 135 Wis. 416, 116 N. W. 16. In Frank v. Stratford-Handcock, 13 Wyo. 37, 77 Pac. 134, 67 L. R. A. 571, 110 Am. St. Rep. 963, it was held that a provision that the lessee shall deposit a sum as security for the performance of her covenants in the lease was a condition precedent to its operation, without compliance with which the lease was not effec- tive, and that consequently there was no consideration to support a contract to sell to the lessee at his option. Ordinarily the making of an instrument which would be effec- tive in a certain contingency would be regarded as a sufficient consider- ation for a promise. 8 Willard v. Tayloe, 75 U. S. (8 Wall.) 557. See Coles v. Peck, 96 Ind. 333, 49 Am. Rep. 161; Washburn v. White, 197 Mass. 540, 84 N. E. 106. 10 Slaughter v. Mallett I..and & Cattle Co., 72 C. C. A. 430, 141 Fed. 282; Hayes v. O'Brien, 149 111. 403, 37 N. E. 73, 23 L. R. A. 555; Marske v. Willard, 169 111. 276, 48 N. E. 290. See DeVitt v. Kaufman County, 27 ■^QjQ OPTION OF PURCHASE. § 256 must be specified or some method named for its aseertainracnt.^i A covenant by the lessor, in case the lessees shall "then" be ten- ants of the premises, to "first" ofl'er the property for sale to them at a price named, was held to be too ambiguous to be spe- cifically enforced.i2 It has been decided by an English judge that an option of pur- chase, contained in a lease for ninety-nine years, and exercisable at any time during the term, is invalid, in the view of a court of equity, as creating an equitable interest which may arise after the period named by the rule against perpetuities.i^ The same iudge has decided that, in the view of a court of law, for the pur- pose of an action to recover damages for breach of the contract to convey at the lessee's option, the contract is valid although there is no limit as to the time of its exercise.i^ The view that such an option, exercisable at a remote time, is invalid under the rule, is strongly asserted by writers of eminence, without any suggestion of a distinction between courts of law and equity in this respect.15 On the other hand, no suggestion appears in any reported case in this country questioning the validity of a provision of this character by reason of the possible remoteness of the exercise of the option.^^ Conceding that, in any particular Tex. Civ. App. 332, 66 S. W. 224; i4 Worthing Corp. v. Heather Callaghan v. Hawkes, 121 Mass. 298. [1906] 2 Ch. 532. See the criticisms 11 Polsom V. Harr, 218 111. 369, 75 of this case in 51 Solicitors' Journal, N. E. 987, 109 Am. St. Rep. 297; at pp. 648, 669; 20 Harv. Law Rev., Fogg v. Price, 145 Mass. 513, 14 N. at p. 240. E. 741; Smoyer v. Roth (Pa.) 13 is See Gray, Perpetuities (2d Ed.) Atl. 191. § 230 b; articles by Cyprian Wil- An option to purchase "at a price liams in 42 Solicitors' Journal, at pp. not to exceed $3,000" is sufficiently 630, 650. Compare the adverse view specific, it being in effect an option as stated in 51 Solicitors' Journal, at to purchase at ?3,000. Heyward v. p. 319. Willmarth, 87 App. Div. 125, 84 N. i6 it has recently been decided in Y. Supp. 75. To the same effect is Maryland that an option of purchase, Wright V. Kaynor, 150 Mich.. 7, 113 in connection with a lease for nine- N. W. 779. ty-nine years, renewable forever, a 12 Buckmaster v. Thompson, 36 N. very common form of lease in that Y. 558. jurisdiction, does not violate the rule 13 Warrington, J., in Woodall v. against perpetuities. Hollander v. Clifton (1905) 2 Cb. 257. The case Central Metal & Supply Co. (Md.) was, on appeal, decided on another 71 Atl. 442. point. See post, note 98. § 258 Alternative right in lessor. I677 jurisdiction, the view first stated might possibly be adopted, it is expedient, when inserting such a provision in a lease for twen- ty-one years or more, to limit the period within which the option may be exercised to that named by the rule against perpetuities. § 257. Option as interest in land. The fact that the lease gives the lessee an option to purchase the land gives him no additional interest in pracsenti in the land itself, but merely a right of personal recourse against the lessor,^ '^ it being in effect merely a continuous offer by the lessor to the lessee on the terms mentioned, which he has no right to with- draw.18 So it has been held that the lessee has no interest in the land, by reason of the option, which he can mortgage,^^ or which can be subjected to the claims of his creditors.^o In one state, however, it has been decided that the lessee had an interest under such an option which might be mortgaged, under a local statute providing that "any interest in or claim to real estate may be disposed of by deed or will in writing," and that the rights of such mortgagee were prior to those of one to whom the lessee mortgaged the land after exercising the option.21 And in another state it was held that the option has the effect of creat- ing an "amalgam" of legal and equitable interests, which pre- cludes a sale of the lessee's interest in the land as leasehold property ,22 a most questionable view, it is submitted. § 258. Alternative right in lessor. Occasionally the lease imposes an obligation upon the lessor to sell to the lessee or to do something else in the alternative. In such eases the question whether tlie election between the two al- ternatives is with the lessor or lessee may arise. Where the lease provided that the lessor would convey a certain part of the 17 Bras V. Sheirleld, 49 Kan. 702, 31 i9 Conn v. Tanner, 86 Iowa, 577, 53 Pac. 306, 33 Am. St. Rep. 386; Elder N. W. 320; Bras v. Sheffield, 49 Kan V. Robinson, 19 Pa. 364. 702, 31 Pac. 306, 33 Am. St. Rep. 386 iswillard v. Tayloe, 75 U. S. (8 Wall.) 557; King v. Raab, 123 Iowa, 632, 99 N. W. 306; De Rutte v. Mul- drow, 16 Cal. 505. It cannot be ^i Bank of Louisville v. Baumeis- withdrawn because the lessee makes *^^' ^"^ ^y- ^' "^ S- W. 170. a counter proposition. McCormick 22 Thalheimer v. Tischler (Fla.) V. Stephany, 61 N. J. Eq. 208, 48 Atl. 46 So. 514. 25. 20 Sweezy v. Jones, 65 Iowa, 272, 21 N. W. 603. 1678 OPTION OP PURCHASE. § 259 premises to the lessee, or would sell a certain other part at a price to be fixed by appraisement, it was held that the lessor, and not the lessee, had the rierht of election, in accordance with the rule in the old books that the person who is to do the first act has the right of election f^ and there was a like holding when the lessor covenanted tliat he would renew or would sell to the lessor, it being decided that the lessee must make his request in the alternative for a compliance with the covenarit.-^ But it was in another case decided that if the lessor failed to make his election in such a case, the right to make the election passed to the lessee.25 A provision that the lessee might buy the land "at the option of the parties" was construed as meaning at the les- see's option, since otherwise it would be meaningless and nuga- tory .^^ § 259. Right of "refusal" in tenant. Occasionally the lessee is given an option to purchase, not en- tirely at his OAvn election, but upon the lessor's desiring to sell, that is, he is given the "refusal." It was held that a covenant in a lease to convey the property to the lessee when the lessor "should find a purchaser," if the lessee desired the property at a certain price named, became obligatory when the lessor found a person able and willing to pay the lessor's price for the prop- erty.^'^ When a lease reserved to the lessor the right to sell the land at any time and terminate the lease at the end of any rental year, "provided" he gave six months' notice prior to the end of the year, and "provided also" the lessee should have the privilege of buying the land at such price as the lessor might see fit to accept, and which might be offered by any other person, it was held that the option to buy was not unconditional, but 23 Duke V. Griffith, 13 Utah, 361, to be under no obligation to do 45 Pac. 276, 57 Am. St. Rep. 766, cit- either. Pearce v. Turner, 150 111. ing 3 Bac. Abr. 109; Co. Litt. 145 a. 116, 36 N. E. 962. 24 Baumman v. Binzen, 65 Hun, 39, 2s Coles v. Peck, 96 Ind. 333, 49 19 N. Y. Supp. 627; Id., 142 N. Y. Am. Rep. 161. G36, 37 N. E. 566. 26 Mack v. Dailey, 67 Vt. 90, 30 A lessor who was given "tho priv- Atl. 686. liege" of renewing or of selling tlie 2t McCormick v. Stephany, 61 N. property at a price named was held J. Eq. 208, 48 Atl. 25. & 259 RIGHT OF REFUSAL IN TENANT. 1679 applied only in case the lessor elected to terminate the lease by making a sale.^s A provision that the lessor might sell the premises at any time by -iving the lessee two months' notice and the privilege of purchase at the price offered, was held to apply only to a sale involving a termination of the lease, and that the lessor had a perfect right to sell subject to the lease, without givmg the lessee the privilege of purchase ;2« and it was even decided that a provision giving the lessee the first option of purchase, con- tained in a lease for two years, with a right of extension for four more, which also gave the lessor the right to sell, was intended merely to secure to the lessee the enjoyment of the fall term ot six years, and that the lessor had a perfect right, without giving the lessee an opportunity to purchase, to sell and convey to a third person subject to the lease.3o a lease giving the lessees "the first privilege of buying said premises, at any time they may wish to do so," at a price named, was construed as requirmg the lessor to give the lessees the privilege of buying at that price in case he wished to sell, and as giving the lessees the option to buy at that price at any time until they refused to buy upon no- tice from the lessor.^i In case the lease provides that the lessee may purchase upon the lessor's giving notice of an offer for the property by a third person, the person to give the notice is the lessor, and not the person who made the offer, although the lessor has conveyed to such person before the making of such offer.32 In case of such a right of "refusal," the landlord cannot, it is obvious, deprive the tenant of the benefit of the lease by offer- in- to sell to him at a price falsely asserted by the landlord to have been offered him for the property, and then making a mere- ly colorable conveyance to another in accordance with such pretended offer.^s 28 DeVitt V. Kaufman County, 27 3i Schroeder v. Gemeinder, 10 Nev. Tex Civ. App. 332, 60 S. W. 224. 355. 29Callaglian v. Hawkes, 121 Mass. 32 Harding v. Gibbs, 125 111. 85, 17 298 N. E. 60, 8 Am. St. Rep. 345. 30Blanchard v. Ames, 60 N. H. 33 Ogle v. Hubbel, 1 Cal. App. 357. 404. 82 Pac. 217. 2630 OPTION OF PURCHASE. § 260 § 260. Conditions for exercise of option. If the right to buy is expressly made condition.il npon the per- formance of particular stipulations by the lessee, he cannot exercise the right without due performance thereof.^^ But the fact that the lessee has not complied with all his covenants would not preclude him from enforcing his claim to purchase, unless his option is, upon a construction of the whole lease, dependent upon compliance with his eovenauts.^^ The acceptance of rent, without objection, by the landlord, after it becomes due, has been held to constitute a waiver of the provision of the lease as to the time of its payment, so that the lessee may thereafter exercise the option, although the lease ex- pressly makes it dependent upon the lessee's compliance with its stipulations.^^ But a different view was taken when the lease expressly provided for a forfeiture of the option in case of fail- ure to pay the rent at maturity.^' The lessee's breach of his covenant to pay taxes will, it has been decided, not justify the lessor's refusal to comply with the op- tion, if the lessee, on tendering the price named, also tenders sufficient to cover the amount of the taxes and all possible dam- age from the breach.^s And it has been decided that the option is not forfeited by failure to pay the taxes when due and payable, though the lease provides for a conveyance to the lessee for a certain sum upon payment of taxes.^^ It is a question of construction whether a re-entry by the les- 34 See Ball v. Canada Co., 24 And so in Raffety v. Schofield Grant's Ch. 281; Mack v. Dailey, 67 [1897] 1 Ch. 937, it was held that a Vt. 90, 30 Atl. 686; Carpenter v. default by one under a building Thornburn, 76 Ark. 578, 89 S. W. agreement which gave him a right 1047; Ostrander v. Livingston, 3 to a lease upon performance by him, Barb. Ch. (N, Y.) 416. and also gave him an option of pur- 35 In Green -v. Low, 22 Beav. 625, cha?G, did not prevent his exercise it was held, on a construction of a of the option of purchase, contract by which A agreed to grant 3o Mack v. Dailey, 67 Vt. 90, 30 a lease to B provided B would build Atl 686. on the land and insure the build- st Brown v. Larry (Ala.) 44 So. ing, and which also gave B the op- 841. tion to purchase \\ithin two years, s'* Bell v. Wright 31 Kan. 236, 1 that the option to purchase was In- Pac. 595. dependent of his right to a lease, 39 Brink v. Mitchell, 135 "Wis. 416, and that his default in insuring did 116 N. W. 16. But compare Ball v. not affect his right to purchase. Canada Co., 24 Grant's Ch. 281. ^ 261 TIME FOR EXERCISE. 1681 sor for a breach of condition by the lessee terminates the right to exercise the option.^o Even in the case of an express stipulation that the option might be annulled on breach of a covenant, it has been regarded as a question of construction whether a mere delay in performance is a breach within the meaning of the stipu- lation.41 § 261. Time for exercise of option. AVhen the lessor's covenant to sell to the lessee at the latter 's option names a time within which the option must be exercised, such provision as to time is usually regarded as of the essence of the contract, so that the covenant will not be enforced in case of delay by the lessee,'*- and equity will not extend the time, since it looks with special strictness upon a provision as to time in a contract by which one party and not the other is bound.-^^ Ordinarily the lease provides that the option shall be exercised during the term of the lease. It has been held that, where the lease so provided, it could not be contended that a statute, au- thorizing a landlord to treat a tenant as holding over his term when he neglects to pay rent,-'^'^ had the effect of terminating the lease by reason of his nonpayment of rent for the month in which he exercised the option, so as to render such exercise in- valid, since the lessee, having exercised the option, became owner before the rent became due.^* The fact that the lessee held over and the lessor accepted rent from him after the term has been regarded as showing that the provision that the option to pur- chase should be exercised during the term was not of the essence of the contract.^'' 40 In Ober v. Brooks, 162 Mass. 102, 117; Atlantic Product Co. v. Dunn, 38 N. E. 429, the lease was regarded 142 N. C. 471, 55 S. E. 299; Kruegel as showing an intention that the v. Berry, 75 Tex. 230, 9 S. W. 863; option should be exercised only by Harding v. Gibbs, 125 111. 85, 17 N. a tenant, and consequently the right E. 60, 8 Am. St. Rep. 345; Ranelagh of purchase ceased with the re-entry, v. Melton, 2 Drew. & S. 278. In Matthews Slate Co. v. New Em- 43 See Fry, Specific Performance pire Slate Co., 122 Fed. 972, the (4th Ed.) § 1103; Maughlin v. Perry, lease received a different construe- 35 Md. 352. tion. ^"'^ See post, § 274 d. 41 Merrill v. Hexter (Or.) 94 Pac. 44 Smith v. Gibson, 25 Neb. 511, 41 972. Compare Brown v. Larry N. W. 360. (Ala.) 44 So. 841, ante, note 37. 46 D'Arras v. Keyser, 26 Pa. 249. 42 See TJpher v. I-iv^rmore, 2 Iowa, L and Ten. 106 1682 OPTION OF PURCHASE. § 261 A provision that the lessor ''will at any time during the ten- ancy hereby created or agreed upon, sell and convey" to the lessee vv^as held to give the right to a conveyance during a re- newal term, this having been "agreed upon" in the lease.''*' And it was held that when a lease for a year gave the tenant a riglit to extend the term from year to year, and also to buy th** land during the original year, or during any extension, the lessee could exercise his option during a second year's lease, though this omit- ted all reference to the option, it having been mutually und»^r- stood that the option should continue.'*'^ And an option to buy at any time has been regarded as existing during a renewal term, created in accordance with the provisions of the lease.'*^ A provision that the option may be exercised "at the expira- tion" of the term has in one state been regarded as requiring the option to be exercised on the last day of the term at lat^st.''^ In another state such a provision was held to give the entire next day for the exercise of the option.'^" It has been said that when there is no time named for the exercise of the option but the lessor agrees to convey "at any time," the fact that the lease has come to an end is immaterial."*^ But in another case it is asserted that even if by the terras of the lease the option does not expire at the end of the term, the lessor may revoke it at any time thereafter, as by a sale and con- veyance to another person.^^ The question whether, when no 46 Trustees of Congregation of either party to terminate the lease Sons of Abraham v. Gerbert, 57 N. at the end of any term. It was al- J. Law, 395, 31 Atl. 383. Compare so provided that the tenant should Atlantic Product Co. v. Dunn, 142 have the right to purchase the prop- N. C. 471, 55 S. E. 299. erty "at the end of said term" for a 47 Abbott V. Seventy-Six Land & price named. It was decided that Water Co., 87 Cal. 323, 25 Pac. 693. the option could be exercised at 4s Schroeder v. Gemeinder, 10 Nev. the end of any year, so long as the 355 tenancy endured. In Thomas v. Gottlieb, Bauern- 49 Tilton v. Sterling Coal & Coke Schmidt, Straus Brew. Co., 102 Md. Co., 28 Utah, 173, 77 Pac. 758, 107 417, 62 Atl. 633, there was a lease Am. St. Rep. 689. for a year, with a provision that 5o Herman v. Winter. 20 S. D. 196, "this agreement, with all its provi- 105 N. W. 457. sions and covenants, shall continue si prout v. Roby, 82 U. S. (15 in force from term to term, after Wall.) 471. the expiration of the term above 52 McCauley v. Coe, 150 111. 311, 37 mentioned," subject to the right of N. E. 232. § 2G3 PAYMENT OR TENDER OF PRICE. 1683 time is specifically named, the lessee's option will expire at the end of the term of the lease, is no doubt one of con&tructiou upon a consideration of the instrument as a whole. § 262. Mode of exercise of option. It has been decided that, where the option to purchase is con- tained in a lease signed by the lessor, the fact that the lessee's exercise of the option is oral does not render it invalid under the provision of the Statute of Frauds requirinf? the contract, or some note or memorandum thereof, to be in writing and signed by the party by whom the sale is to be made.^^ Any stipulation as to the notice necessary in exercising the option must, it seems, be strictly complied with, and it was held that where, in a lease by three trustees, the lessee was given an option to purchase at any time during the term on giving written notice "to the said lessors or the survivors or survivor of them," a notice given to one only of the trustees, they being all alive, was ineffectual.^^ And where the lessee was given the right to purchase within five years, upon giving thirty days' notice, he could not exercise the right, it was decided, if he did not give notice till two days before the end of the five years.^^ § 263. Payment or tender of price. It has been decided in England that, when the tenant was to have the option of purchase at any time during the term for a specified sum, and upon payment of such sum, the term and the rent were to cease and he to be entitled to a conveyance, a notice by the lessee of his election to exercise the option was bind- ing on the lessor without payment of tlie purchase money .^^ In another case it was decided that, under an undertaking to sell in case the lessees should desire to purchase, and should give no- tice to that effect, and should pay the purchase money, the pay- ment of the money was necessary to the creation of a binding 53 Smith V. Gibson, 25 Neb. 511, b4 Sutcliffe v. Wardle, 63 Law T. 41 N. W. 360. But the terms of the (N. S.) 329. option may require an acceptance in 55 Mason v. Payne, 47 Mo. 517. writing. See Birmingham Canal Co. sc Mills v. Haywood, 6 Ch. Div. V. Cartwright, 11 Ch. Div. 421. 196. 1684 OPTION OF PURCHASE. § 263 contract;''^ and it has likewise been held that, though the lessee gave the required notice of his exercise of the option, yet if he failed to pay the purchase price at the expiration of the notice, as provided in the lease, he lost his right to purchase.^^ In this country, also, the payment or tender of the purchase price has occasionally been regarded as an integral part of the exercise of the option, as when the liability for rent was held to continue until such payment or tender,^® or when it was said that the lessee cannot, until he actually tenders the price, com- plain that the lessor has not complied with his contract.^" So it has been decided that a provision that the improvements should go to the lessor, in case the lessee should not purchase the prem- ises, became operative if the purchase price was never paid, even though the lessee agreed to purchase and took a bond for title ;^^ and when the lessee Avas given the privilege of purchase "at any time before the expiration of this lease" for a sum named, "to be paid down in cash upon the demand of a deed prior to the expiration of this lease," payment or tender of the sum named within the time named was regarded as essential.^- On the other hand it has been decided that if the lessor refused to con- vey, upon being notified by the lessee of his desire to exercise the option, no tender of the price was necessary as a prerequisite to an action for specific performance.^^ The cases bearing on the question are generally obscure ' and unsatisfactory, but it would seem to be, in each case, a matter for determination with reference to the language of the particular contract. In a few eases the fact that the purchase price was not paid within the time specified has been regarded as not excluding the B7 Weston V. Collins, 34 Law J. Ch, That the lease gave the tenant the 353. right to apply upon the price the 58 Ranelagh v. Melton, 2 Drew. & fund obtained by a sale of the pro- S. 278. ducts of the leased premises, a farm, 59 See post, at notes 73-76. y^g^^ j^eld not to require him to use 60 Heine v. Treadwell, 72 Cal. 217. ^nly such fund for the purpose, the 10 Pop KO'i la r-cvc. oyjo. amount SO realizable within the peri- 01 Merrltt v. Judd, 14 Cal. 59. , ^ ^ ^v, • . .v .- ,., od named for the exercise of the 02 Steele v. Bond, 32 Mmn. 14, 18 ^. ^ . .,.«,. .. option being necessarily insufficient N. W. 830. / ,^ T, 1 • T. 1 ■ 03 smith V. Gibson, 25 Neb. 511, 41 '"^^ the purpose. Rankm v. Rankm. N. W. 3R0; Butler v. Threlkeld. 117 216 111. 132, 74 N. E. 763. Iowa, 116, 90 N. W. 584. EFFECT OF EXERCISE. 1685 § 265 lessee's right to a conveyance, he having expressed his intention to exercise the option within the time named. It was so decided when his failure to make payment was owing to the lessors fault «^ when, the lessor having died, the administrator refused to receive the purchase money for the heirs, who were infants and nonresidents,^^ and when the lessee made a^part payment within the time, which was accepted by the lessor. § 264. Exercise as to part of premises. An option in the lessee to purchase the premises does not give him the ridit to purchase a part of the premises at a less pnce, nor can this be done by one to whom he has assigned the lease- hold interest in a part of the premises.«s But it has been decided that the assignee of an undivided moiety can compel perform- ance in equity by suit in the name of all the owners or, if they refuse to join, by suit in his own name - Where the lessor ac- tually sold part of the premises included in the option to the lessee, the latter 's rights were regarded as superior to those ot one to whom the lessor had previously contracted to convey the land.70 § 265. Effect of exercise. An exercise of the option by the lessee, being an acceptance by him of the continuing offer made by the lessor, creates m effect a contract for the sale of the land.^^ Such a contract if spe- cificallv enforcible, as it usually is, creates, in the view of a court of equity, an equitable estate in the lessee of a quantum equa to that which the lessor has contracted to convey, usually the lat- ter's whole interest, and in this the leasehold estate will merge. But in the view of a court of law, until a conveyance is actually 64Wilkinsv.ETans,lDel.Ch.l56. 6o Van Home v. Grain, 1 Paige 6»Page V. Hughes. 41 Ky. (2 B. (N. Y.) 455. 4„q ToDietz V. Mission Transfer Co., eenartman v. McAlister. 5 N. C. 95 Cal. 92, 30 Pac. 380. See POSt. (1 Murph.) 207. note 99. ,oq t^w« R^2 6T Hitchcock V. Page, 14 Cal. 440. ti See King v. Raab, 123 Iowa, 632 68 Hitchcock V. Page, 14 Cal. 440; 99 N. W. 300; Willard v. Taylor. 75 Ostrander v. Livingston. 3 Barb. U. S. (8 Wall.) 557. Ch. (N, Y.) 416. 1686 OPTION OF PURCHASE. § 265 made, the lessee is in the position merelj of a tenant having a contract for a conveyances^ There are decisions to the effect that an exercise of the option, accompanied by a tender of the purchase money, terminates the liability for rentJ^ In one state, however, it has been decided that this does not occur unless the tenant in some manner seeks enforcement of the lessor's agreement to sellJ^ That the lessee had an option for three years to buy at a price named, in which case the money paid on the rent was to be credited on the pur- chase money, was held not to authorize the lessee to occupy rent free for three years upon giving notice of his election to buy, without any tender of the purchase money J'^ And that the les- see notified the son of the deceased lessor that he intended to exercise the option, and would pay the purchase price when the probate proceedings were completed and the owner could give title, and on the appointment of the administrator, notified him of his desire to avail of the option, without, however, then paying the price because he had not the money, was decided not to terminate the liability for rent."*^ When the purchase price is not named, but is to be ascertained by arbitration, the lessee is, upon exercising the option, it has been held, entitled to remain rent free for such reasonable time as may be necessary for the arbitrations'^ In one case it was held that, the lessee enjoying possession rent free after tender by him of the price, he, and not the lessor, should pay the taxes accruing thereafter, although the lessor had 72 Ellis V. Wright, 76 Law T. (N. Swanston v. Clark, 153 Cal. 300, 95 S.) 522; Doe d. Gray v. Stanion, 1 Pac. 3117. Mees. & W. 695. But in Knerr v. 74 Knowles v. Murphy, 107 Cal. Bradley, 105 Pa. 190, the exercise of 107, 40 Pac. 111. the option is regarded as terminat- 75 Hill v. Allen, 185 Mass. 25, 69 ing the tenancy, even at law, on the N. E. 333. theory that the relation of vendor 7c Journe v. Hewes, 124 Cal. 244, and vendee is inconsistent with that 56 Pac. 1032. of landlord and tenant. See ante, 77 Washburn v. White, 197 Mass. § 43. 540, 84 N. E. 106. In this case, lack 73 Walker v. Edmondson, 111 Ga. of good faith on the part of the les- 454, 3fi S. E. 800; Wade v. South sees in their attempts to procure the Penn Oil Co., 45 W. Va. 380, 32 S. E. completion of the arbitration was 169; Gilbert v. Port, 28 Ohio St. 276; the question iijivolved. „ 2(35 EFFECT OF EXERCISE. 1687 agreed to convey free of incumbrance, and such taxes consti- tuted an incumbrance^^ It has in England been decided that the effect of the exercise of the lessee's option, after the death of the lessor, is to make the conversion of the land into purchase money relate back to the time of the giving of the option, so that the purchase money .vill belon- to the lessor's personal representatives and not to his heir or devisee,^^ unless a contrary intention appears, as when the testator, after the giving of the option, devised the particular property without referring to the contract.^o The practical in- convenience of the above doctrine, in that property may thus be shifted from the lessor's heir or devisee to his personal repre- sentative by the exercise of the option at a date long subsequent to his death, is sufficiently obvious, and the correctness thereot, particularly when the option is exercisable at a remote date m the future has been forcibly questioned in a case in this country. The exercise of the option does not, it has been held, relate back to the time of the creation of the option, so as to entitle the lessee to the proceeds of insurance on buildings destroyed between the time of the creation of the option and its exercise, and it was so decided when the premiums were paid by the lessee for insurance taken out for the lessor's benefit,^^ as well as when the lessor took out the insurance himself and paid the premiums.s^ A different view was, however, taken in one case, in regard to insurance paid for by the lessee, on a construction of the par- ticular contract.8^ When there was a stipulation that the m- T«Swan.tonv. Clark. 153 Cal. 300. St. 346, 34 N. E. 159 In In re Pac 1117 Gravos, 15 Ir. Ch. 357. likewise, the ToLawes v. Bennett, 1 Cqx. 167, propriety of the doctrine is ques- 171- Townlev v. Bpdwell, 14 Ves. Jr. tioned. 591'; Collingwood V. ROW. 26 Law J. - Gilbert v. Port 28 Ohio St. 2 6. Ch 649- In re Isaacs [1894] 3 Ch. sa Edwards v. West, 7 Ch. Div. „ ' 858. In this case, decided by Fry, J.. ■soDrant v. Vause. 1 Younge & C. it is said by him that the doctrine Ch 580- En^uES y. Smith, 2 De Gex of Lawes v. Bennett, 1 Cox, 167 & S 722: Y/eeding v. Weeding, 1 (ante, note 79). is not to be ex- Johns. & H. 424. So when a codicil ten^led. was made, on the day of the lease. s. Williams v. LiHey 67 Conn 50. confirming a prior specific devise of 34 Atl. 765, 37 L. R. A^ 150 There the property. In re Pyle [1895] 1 it was decided that when the lease f^^ ^04 ' provided that, upon the lessee's ex- 81 Smith V Loewensteln, 50 Ohio ercise of the option to purchase, the 16g8 OPTION OF PURCHASE. § 266 surance, which the lessee agreed to take out, should be applied in rebuilding the premises, it was held that if the lessor, by taking out additional insurance without the lessee's knowledge, di- minished the amount recoverable under the policy taken out by the lessee, by reason of the "average" clause therein, the lessor was bound to apply to rebuilding the amount received from the insurance taken out by him.^^ § 266. Sufficiency of conveyance. A covenant to convey to the lessee by "warranty deed," upon the payment of a certain sum, was held to require the conveyance of a perfect title, and hence the lessee could demand that the lessor's husband join in the conveyance.^® A covenant that the lessee should have the option to purchase the premises in a cer- tain contingency, without naming the estate to be conveyed, was construed as requiring the conveyance of a fee simple.^''' If a covenant, inserted in the instrument of lease, is intended to continue binding in the event of the purchase of the reversion under the option, the lessee is entitled to have such covenant in- serted in the conveyance to him.^s Whether it is so intended is a question of the construction of the language used.^* sums theretofore received as rent sb Reynard v. Arnold, 10 Ch. App. should be applied as part of the pur- 386. chase price, and he covenanted to so Gradle v. Warner, 140 111. 123, pay all taxes and insurance in the 29 N. E. 1118. meanwhile, to operate the elevator, st McCormick v. Stephany, 61 N. to heat the building, and generally J. Eq. 208, 48 Atl. 25. to make it desirable for tenants, and In Brink v. Mitchell, 135 Wis. 416, the lessor agreed to refund to the 116 N. W. 16, it was held that an lessee any excess of the rent paid by agreement, upon the lessee's exercise him over the net rents received by of his option, to convey by "a good him, these stipulations showed the and sufficient quitclaim deed," ac- intent of the parties to be to treat companied by recitals that the les- the lessee's election to purchase the sor acquired the title by purchase at property, when made, as relating foreclosure sale, called for "a con- back to the date of the lease, and veyance of the entire estate of the that consequently the money receiv- lands." ed by the lessor from the insurance ss American Strawboard Co. v. token out by agreement between Haldeman Paper Co., 27 C. C. A. 634, them, upon the destruction of the 83 Fed. 619. building by fire, should be regarded so See Buffum v. Breed, 116 Mass. as belonging to the lessee on his 582: Wright v. Kayner, 150 Mich. 7, exercise of the option. 14 Det. Leg. N. 631, 113 N. W. 779. . 067 CHANGE OF PARTIES TO TENANCY. 1689 Compliance with a covenant to convey free from incumbrances is obviously not affected by the existence of the leasehold es- tate, since this is merged upon the making of the conveyance to the owner thereof.^^ § 267. Change of parties to the tenancy. The benefit of an agreement by the lessor to sell to the lessee at the latter's option has been regarded as passing to an assignee of the lessee's interest under the lease," and, on the tenants death, to the lessee's personal representatives.^^ There is one decision, however, to the effect that a right given to the lessee to purchase partially on credit does not pass to an assignee ot the lease, since otherwise there might be imposed on the landlord an obligor for part of the purchase money not acceptable to him «3 And there is a decision to the effect that the benefit of the provision does not pass under the foreclosure of a mortgage on the leasehold.9^ ^ One to whom the lessor transfers the reversion has usuall} been regarded as bound by the lessor's covenant to sell to the lessee,^^ and, upon the lessor's death, his heirs or devisees have ooswanston v. Clark. 153 Cal. 300. Kensington Vestry. 27 Ch Dlv. 3»4^ ex Laffan V Naglee. 9 Cal. 662. 70 Wall.) 471. it -^as asserted that "the Axl Dec 671; Han V. center. 40 cal. covenant to convey passed ^^^ ^^^ fi^Naoier v Darlington, 70 Pa. 64; scent to the heir at law as If it had Srr V Day' 14 Pa 112; Hollander heen contained in a separate instru- V Cenlral M;tal . Supply Co. (Md.) ment." There t^^ co-nant was m 71 Atl 412- Page v. Hughes, 41 Ky. term, to convey to the said Oe^^ee) (2B Mon 439; Robinson v. Perry, her heirs and assigns, hot this is Ca. 183. 68 Am. Dec. 455; Hagar not referred ^o in the opinion. V Buck 44 Vt. 285, 8 Am. Rep. 368. '^3 Monger v. Ward, 87 Tex. 62., rii Rlak'einan v Miller, 136 Cal. 138, S. \V. 853. 68 Pac ST I9 Am. St. Rep. 120. 0. Conn v. Tonner. 86 Iowa 577 ■ t was dec ded that the benefit of 53 N. W. 320. The decision is based he covenant passed because the as- on a prior decision that such a the covenani p covenant does not constitute an In- Sr or are.'- Ind lot Of the terest in land so as to be. subject to , exec'ition. mere is uo .cx^-cu^., 'Tjstln V union School Dist.. the question whether the benefit of q4 Mich 502 '54 N. W. 156. 34 Am. the stipulation should not pass as l\ R.pN'l Hagar v. Buck. 44 Vt. a covenant running with the land. 2 5 8 Ar! Rep. 368; In re Adams & -Van Home v. Crain, 1 Paige 1690 OPTION OF PURCHASE. § 26S been held to be bound thereby .»•' In one case, however, in ap- parent opposition to the view that the lessor's transferee is bound by the covenant, it was decided that there is a breach of the covenant, entitling the lessee to substantial damages, if the lessor transfers the reversion, even though the transfer is in terms sub- ject to the rights of the lessee.^^ And in a recent case in England it was explicitly decided that an option to purchase, given to the lessee, is not concerned with the relation of landlord and ten- ant, and that the burden thereof will consequently not pass upon a transfer of the reversion.^^ As against one to whom the lessor, after making the lease, agreed to convey the land, the lessor cannot, it has been held, sell the property to the lessee at a price less than that named in the option of purchase.^^ § 268. Remedy for breach of stipulation. The tenant can, no doubt, brincr an action for damages on ac- count of the breach of a covenant to convey to the landlord at his option,i<'<^ but the remedy almost invariably adopted is that of a proceeding to compel specific performance.^ °^ (N.Y.) 455; Thomas V.Gottlieb, etc., Pac. 134, 67 L. R. A. 571. 110 Am. Brew. Co., 102 Md. 417, 02 Atl. St. Rep. 9C3, where it is said that 633; Maughlin v. Perry, 35 Md. 352; tender of the price must be made Lazarus v. Heilman, 11 Abb. N. C. to the lessor and not to the trans- (N. Y.) 93; Harding v. Gibbs, 125 feree. 111. 85, 17 N. E. 60, 8 Am. St. Rep. 98 Woodall v. Clifton [1905] 2 Ch. 345. The lessee may, however, by 257. See the criticism of this case, his own conduct be estopped to as- as bein? in confiict with In re sert a right to a conveyance as Adams & Kensington Vestry, 27 Ch. against the transferee, as when he Div. 394, in 51 Solicitors' Journal, allowed the latter to buy out his at p. 319. stock in trade on the supposition 99 Millard v. Martin. 28 R. I. 494. that if this was done the lessee 68 All. 420, 17 L. R. A. (N. S.) 582, would not call for a conveyance. 125 Am. St. Rep. 755. Compare Race V. Groves, 43 N. J. Eq. 284, 7 Slaughter v. Mallet Land & Cattle Atl. 667. Co., 72 C. C. A. 430, 141 Fed. 282, 96 Van Home V. Grain, 1 Paige (N. and Eietz v. Mission Transfer Co., Y.) 455; Buckwaller v. Klein, 5 95 Cal. 92, 30 Pac. 380. Ohio Dec. 55. 100 See Thuemler v. Ward, 18 Pa. 07 Thuemler v. Brown, 18 Pa. Super. Ct. 117. Super. Ct. 117. And see Frank v. i^i Hall v. Center. 40 Cal. 63; Stratford-Handcock, 13 Wyo. 37, 7? King v. Raab, 123 Iowa, 632, 99 N. § 269 STATUTORY PROVISIONS. 1691 § 269. Statutory provisions. In Maryland there are statutory provisions authorizing one holding under a lease for a longer period than fifteen years to "redeem the rent" within a period named in the statutes, vary- ing from five to fifteen years, according to the date of the making of the lease, upon paying a sum no greater than the capitalization of the rent at a rate of interest named. ^^^ This right of "re- demption" is in efl'ect merely a right to purchase the reversion, regardless of the reversioner's assent, and the tenant, after giving notice, as provided by the statute, to all persons interested in the reversion, may, it has been decided, file a bill in the nature of one for specific performance to obtain a conveyance of the reversion. ^"^3 This legislation having been adopted as a matter of public pol- icy, rather than for the benefit of particular individuals, any agreement or waiver intended to exclude its operation in a par- ticular case has been decided to be nugatory,^^^ nor can this be effected by the making of a lease for less than fifteen years with a provision for renewal for another period, when the sum of the two periods is over fifteen years.^*^' These statutes apply to improved as well as unimproved prop- c^rty.^"*' They do not, it has been held, apply to a lease made, since their enactment, merely in pursuance of a covenant in a lease made prior to their enactment, whereby the lessor agreed to make new leases for the purpose of apportioning the rent.^°'^ W. 306; Hawralty v. Warren, 18 N. los Stewart v. Gorter, 70 Md. 242, J. Eq. (3 C. E. Green) 124; Maugh- 16 Atl. 644, 2 L. R. A. 711. lin V. Perry, 35 Md. 352; Hayes v. !•>« Swan v. Kemp, 97 Md. 686, 55 O'Brien, 149 111. 403, 37 N. E. 73, 23 Atl. 441. L. R. A. 555; Willard v. Tayloe, 75 "' Flook v. Hunting, 76 Md. 178, U. S. (8 Wall.) 557. See Robinson 24 Atl. 670. On somewhat the same theory, it was held that the legisla- tion did not apply to a lease made in confirmation of a previous lease which was invalid because, at the time of its execution, the proposed 52 Atl. 606. 93 Am. St. Rep. 339. i,,^^^ ^^^ „„t y^t become a cor- 104 Stewart v. Gorter, 70 Md. 242, poration. .Tones v. Linden Bldg. 16 Atl. 644. 2 L. R. A. 711. Ass'n, 79 Md. 73, 29 Atl. 76. V. Perry, 21 Ga. 183, 68 Am. Dec. 455. 102 Code Pub. Gen. Laws 1904, art. 21, §§ 88, 89; art. 53, § 1. 103 Piaenker v. Smith. 95 Md. 389, CHAPTER XXVII. PAYMENT BY LANDLORD FOR TENANT'S IMPROVEMENTS. § 270. In absence of stipulation. 271. Stipulation as to payment. a. As alternative to renewal. b. As dependent on sale of reversion. c. Election by lessor. d. Improvements within stipulation. e. Effect of renewal or extension. f. Effect of tenant's breach of covenant. g. Effect of forfeiture of leasehold, h. Change of parties to tenancy. 1. Title to improvements. J. Valuation of improvements. k. Possession of premises pending payment. 1. Enforcement of payment — Lien. § 270. In absence of stipulation. The tenant cannot ordinarily, by erecting buildings or placing other improvements upon the land, impose upon the landlord any obligation to compensate him for such improvements, even though they are of such character and so annexed that the ten- ant has no right to remove them upon the termination of the ten- ancy.^ And the same principle applies in case the tenant ex- 1 Pilling V. Arnitage, 12 Ves. Jr. Bldg. Co., 63 111. 308; Diederlch T. 84; Kutter v. Smith. 69 U. S. (2 Rose, 238 111. 610, 81 N. E. 1140; Wall.) 491; Gay v. Joplin, 13 Fed. Y.'ilkinson v. Nichols, 17 Ky. (1 T. 650; Jones v. Hoard, 59 Ark. 42, 26 B. Mon.) 36; Guthrie v. Guthrie, 25 S. W. 193, 43 Am. St. Rep. 17; Ky. Law Rep. 1701, 78 S. W. 474; Hughes V. Ford, 15 Colo. 330, 25 Pac. Leslie v. Smith, 32 Mich. 65; Cos- 555; Town of Milledgeville v. griff v. Foss, 65 Hun, 184, 19 N. Y. Thomas, 69 Ga. 535; Mull v. Gra- Siipp. 941; Pomeroy v. Lambeth, 36 ham, 7 Ind. Arip. 561, 35 N. E. 134; N. C. (1 Ired. Eq.) 65, 36 Am. Dec. Toledo, W. & W. R. Co. v. Depot 33; Critcher v. Watson, 146 N. C. 270 IN ABSENCE OF STIPULATION. 1693 pends money or labor in other ways upon the land.^ The tenant has no greater ri-ht to assert snch a claim in an action for rent brouo-ht by the landlord than by independent suit,^ and or- dinarily he cannot do so in equity to any greater extent than at law.* . ^, 1 • r.f The fact that the landlord does not object to the making ot improvements by the tenant, although knowing thereof at the time is immaterial,^ as is the fact t^at the landlord urges the makin- of the improvements.^ If, however, the landlord en- -•ourag^es the tenant to make improvements, by inducing him to believe that he will be granted a renewal or more extended lease equity will, it seems, protect the tenant in his possession unti compensated for the improvements.^ And it has been decided that if a tenant improves by permission of his landlord, under a promise to convey or devise to him, he may recover the cost of the improvements, on the nonfulfillment of the promise, even if he failed to secure himself by a written contract m accordance with the Statute of Frauds.^ There are even decisions that if the owner of land agrees orally that another shall have the premises for life, the owner cannot recover possession during the life on the crround that there is no written lease, unless he pays for 'the improvements made by the tenant.^ And where a lease 150 59 S E 544. 18 L. R. A. (N. S.) « Hopkins v. Ratliff, 115 Ind. 213. 970' 125 Am St. Rep. 470; Kline v. 17 N. E. 288. rl/obf etpa 57- sLe v. McMinn- t Un.ty Joint Stock Mut. Banking vn I'm R Co: 74 Venn. (6 Lea) Ass'n v. Kin.. 25 Beav. 72; Millard 369 Windom v. Stewart. 43 W. Va. v. Harvey. 10 Jur. (N. S.) 1107; Hol- ' 218 E. 776; Hart v. Hart. 117 lis v. Edwards. 1 Vern. 159 sem^ Wis 639 94 N W. 890. ble). But the lessor is not liable .Wilkerson v. Farnham. 82 Mo. for the improvements even m such 672- Quay v. Kehoe, 70 N. H. 151. case, it has been decided, if he al- 46 Atl 688- Bullitt v. Musgrave. 3 lows the lessee to remain in posses- sWiLrson'v. Farnham, 82 Mo. the agreed lease. Yat^s v. Bachley. 672; Randolph v. Mitchell (Tex. Civ. 33 Wis. 185. „ t.. i 1 51 S W 297 ^ Freeman v. Headley. 33 N. J. 4Pillin? V. Armitage. 12 Ves. Jr. Law, 523. 97 Am. Dec. 737; Smith v. 84- Pomeroy v. Lambeth. 36 N. C. Smith, 28 N. J. Law (4 Dutch.) 208. (I'ired Eq) 65. 36 Am. Dec. 33. 78 Am. Dec. 49; Cornell v. Vanarts- 5 Gocio V. Day, 51 Ark. 46. 9 S. W. dalen. 4 Pa. 3G4. 433; Woolley V. Osborne. 39 N. J. Reed v. Lander. 68 Ky. (5 Bush Ea (12 Stew.) 54; Dunn v. Bagby, 21; O'Neal v. Orr. 68 Ky. (5 Bush) CQ M r qi 619. The case of Allen v. Mansfield, 1694 PAYMENT FOR TENANT'S IMPROVEMENTS. § 271 was made for one hundred years, with a covenant that the lessee might retain possession so long as he might think proper there- after, it was held that the lessee's successor in interest could be ousted after the one hundred years only upon payment by the landlord for his improvements.^® When a lease which is valid at law is set aside in equity, allow- ance will be made, it has been decided, for improvements made by the tenant.^ ^ The tenant does not acquire a right to compensation for im- provements, it has been held, because, in making them, he acted under the mistaken impression that his lease would endure for a longer time than was actually the casc,»2 nor because he had, at the time, an option to purchase the premises, which option he failed to exercise because of subsequently discovered defects in the lessor's title.^' § 271. Stipulation as to paymsnt. a. As alternative to renewal. Occasionally a provision of the lease is so expressed as to give the lessor the option to take the improvements at the termination of the tenancy, upon payment therefor, without binding him so to do.^-* And so the lessor is quite frequently given the option either to pay for the improve- ments or to give a renewal lease, the right of election being vested in the lessor and not in the lessee.^^ In such a case, when the 82 Mo. 688, is apparently to the i* See Toledo, W. & W. R. Co. t. same effect, there the owner of the Jacksonville Depot Bldg. Co., 63 111. land having given what is called 308; Kelly v. Chicago, M. & St. P. a "license" to use the land for a R. Co., 93 Iowa, 436, 61 N. W. 957. "permanent home," and it being is See Kutter v. Smith, 69 U. S. held that the licensee could not be (2 Wall.) 491; Bullock v. Grinstead, ousted without being paid for her 95 Ky. 261, 24 S. W. 867; Smith v. improvements. St. Philip's Church, 107 N. Y. 610, 10 Lewis V. Effinger, 30 Pa. 281. 14 N. E. 825; In re Coatsworth, 160 11 Attorney General v. Baliol Col- N. Y. 114, 54 N. E. 665; Howe's Cave lege, 9 Mod. 411; Richmond v. Dav- Ass'n v. Houck, 66 Hun, 205, 21 N. is, 103 Ind. 449. 3 N. E. 130. Y. Supp. 40; Conger v. Ensler, 85 'i2Wildridge v. McKane, 8 Ir. Eq. App. Div. 564, 83 N. Y. Supp. 419; 231- Haven v. Adams, 90 Mass. (8 Crosby v. Moses, 48 N. Y. Super. Ct. Allen) 363; Dunn v. Bagby, 88 N. C. (16 Jones & S.) 146; Hutchinson v. Ql ' Boulton, 3 Grant's Ch. 391; Ward v. IS Walton V. Meeks, 120 N. Y. 79, Hall, 34 New Br. 600; Ward v. City 23 N. E. 1115. 8 L. R. A. 79. of Toronto, 26 Ont. App. 225. See § 271 AS ALTERNATIVE TO RENEWAL. 1695 lease provided that the lessor should pay for improvements "pro- vided the said premises shall not be re-let to the lessee," it was held that the terra "re-let" referred to a new letting for a fixed and definite period, and that the mere fact that the tenant held over, paying rent monthly, did not relieve the lessor from liabili- ty to pay for the improvements.^^ Elsewhere it has been held that there was in effect a renewal, sufficient to relieve the lessor from all obligation to pay for the buildings, when the lessee con- tinued in possession for the period of the renewal term, he having thereby waived a requirement of notice from the lessor of his election to renew.^'^ And a provision that, in case the "lease can- not be continued" after its term "by mutual agreement of the parties thereto," the improvements shall be purchased by the lessor, was regarded as inapplic.ible when tlie lessee continued in possession after the term, rent being paid and accepted as before.^8 The fact that the lessor elects to renew rather than to pay for the improvements does not compel the lessee to accept the re- newal,^^ and in case of such refusal by him to accept the renewal the tenancy will come to an end, the lessee losing the value of his improvemeuts,2o unless this result is excluded by the language of the lease.2i If the period of the renewal is not named, the lessor must, it has been held, renew for a substantial term, as an alternative to buying the improvements.22 One renewal has been regarded as Neiderstein v. Cusick, 178 N. Y. 543, Co., 180 Mass. 131, 61 N. E. 816, it 71 N. E. 100. As to the necessity was decided that where the lessees of an express election by the lessor, were by the lease given the right of see post, § 271 c. renewal for such rent as might be isMoseley v. Allen, 138 Mass. 81; agreed on, "or, in case of a failure Franklin Land, Mill & Water Co. v. so to agree, the lessor shall pur- Card, 84 Me. 528, 24 Atl. 960. chase the improvements," the words IT Powell V. Pierce, 103 Va. 526, "failure to agree" were held to 49 S. E. 666. embrace the case of a failure to re- 18 Parker v. Page, 41 Or. 579, 69 new because the lessees would not P^c. 822. pay any rental, and they were re- loZorkowski v. Astor, 156 N. Y. garded as entitled to compensation 393, 50 N. E. 983. for improvements though they re- 20 See Rutgers v. Hunter, 6 Johns, fused to take a renewal. Ch. (N. Y.) 215; Pearce v. Golden, 8 22 phiuipg y. Reynolds, 20 Wash. Barb. (N. Y.) 522. 374, 55 Pac. 316, 72 Am. St. Rep. 107. 21 In Carpenter v. Focasset Mtg. 1C96 PAYMENT FOR TENANT'S IMPROVEMENTS. § 271 sufficient, so that the landlord need not pay for improvements upon his refusal to give a second renewal.^^ b. As dependent on sale of reversion. Occasionally there is a provision that the lessor shall pay the lessee for improvements in case the lessor sells the property .^^ A condemnation of the property for public use has been decided not to be a sale within such a provision.-^ It has, moreover, in one case, been decided not to apply when the lessee's rights vi^ere expressly protected by the terras of the sale,26 but there is in another jurisdiction a contrary dccision.^^ c. Election by lessor. It has been held that when the lessor had the option at the end of the terra either to pay for the ira- provements or to renew the lease, the lessor's failure to make his election, on the day of the expiration of the terra, to renew the lease, made him liable for the value of the improvements.28 In another jurisdiction a different construction was placed on a provision that, if the lessee should give notice of a d(^sire for a renewal, the lessor would renew or pay for the improvements, it being held that the fact that the lessor failed to make an election upon receipt of notice from the lessee did not compel him to pay for the improvements rather than to renew.2" In one jurisdic- tion it has been decided that, when the lessor failed to make the election, the lessee might do so.^" Where a lease provided that, unless the lessor gave notice, six months before the expiration of the term of fifteen years, of his election to take possession of the premises and to pay for the buildings to be erected by the lessee at their appraised value, the lease should be regarded as renewed and continued for a period of five years longer, it was held that a notice of the land- lord's election to take possession "pursuant to the provisions of 23 Pierce v. Grice, 92 Va. 763, 24 26 Chandler v. Oldham, 55 Mo. S E 392. "^PP" •'^^^• ' ' ' „„.. f^, iTTi 27 Pintard v. Irwin, 20 N. J. Law 2. AS to compensation fo Im- ^^^ provements on termination of ten- ^^^^^^^^^^ ^ Grinstead. 95 Ky. ancy by sale or otherwise, under ^g^^ 34 S. W. 867. option in lease, see ante, § 12 e (5), ,3 y^.^rd v. City of Toronto, 29 at notes 240-244. q^^ ^29, 26 Ont. App. 225. 25 McAllister v. Reel, 53 Mo. App. so Coles v. Peck, 96 Ind. 333, 49 81. Am. Rep. 161. § 271 IMPROVEMENTS WITHIN STIPULATION. 1G97 the said lease" was sufficient to terminate the lease, though it did not state that the lessor would pay for the improvements.^^ It has been decided that, when the lessor agreed to pay the value of the improvements in one, two or three years from the expiration of the lease, or, at his election, to pay the same out of the rents, and the lessor assigned the reversion, since by such assignment he lost the power to pay out of the rents, the lessor's right of election was lost and he was bound to pay in one, two and three years.32 And it was held, without reference to any other provisions of the lease, that by a sale of the premises with- out expressly reserving the rights of the tenant, the lessor in ef- fect converted the improvements to his own use, and consequently thereby elected to pay therefor under a clause giving the lessor the option either so to do or to permit their removal by the ten- ant.3* Ordinarily, it seems, the right of election would in such case be regarded as passing to the transferee.^* d. Improveiiients within stipulation. The question as to what particular improvements come within the terms of a particular covenant to pay for improvements is obviously one of the con- struction of the language used.^^ A covenant to pay for im- provements erected by the lessee has been regarded as covering improvements erected by an assignee of the lessee,^^ and even 31 In re Coatsworth, 160 N. Y. 114, the contemplation of a previous 54 N. E. 665. clause authorizing the erection of a 32 Bream v. Dickerson, 21 Tenn. certain class of mill and machinery. (2 Humph.) 126. Berry y. Van Winkle, 2 N. J. Eq. (1 3:-. Smyth V. Stoddard. 203 111. 424, H. W. Green) 390. 67 N. B. 980, 96 Am. St. Rep. 314. A contract to pay for "stalling and 34 See post, at notes 74-76. covering" erected on a bam founda- 35 A covenant to pay the value of tion does not cover a pump used "the buildings," following an agree- for watering the stock. Smyth v. ment by the lessee to erect a build- Stoddard. 203 111. 424, 67 N. E. 980, ing then being transported from 96 Am. St. Rep. 314. another place, or, if this were lost. Crib-work and earth-filling, made a similar one, was held not to cover by the lessee of a water lot, have a building of an entirely different been held not to be within a cove- class, erected in place of the one nant to pay for "buildings and erec- first set up on the destruction of the tions." Adamson v. Rogers, 26 Can. latter. Woodward v. Payne, 16 Cal. Sup. Ct. 159. 444_ 36 Tuttle v. Leiter, 82 Fed. 947; A covenant to pay for improve- Smith v. St. Philip's Church, 10-7 N. ments was held to apply only to im- Y. 610, 14 N. E. 825. provements of a character within L. and Ten. 107. 16Q8 PAYMENT FOR TENANT'S IMPROVEMENTS. § 271 those erected by a sublessee.^T And a covenant in a renewal lease, made to an assig^nee of the original lessee, to pay for im- provements made by him, has been construed as entitling him to compensation for improvements made by the original lessee, the renewal lease expressly providing that the lessee should con- tinue to be the owner of the buildings even though the lease was not again renewed, and securing to him the privilege of re- moving them.'^s An agrcfMnent to pay for a building, if a good and substantial building is erected, does not bind the lessor to pay for improve- ments to l)uildings already erccted.^^ And an agreement to pay for "permanent improvements, such as cistern, privy, cellar and fencing," has been held not to bind him for grading, or for shrub- bery and fruit trees, planted for the lessee's convenience."*^ Where a lease provided that the lessor might either have im- provements appraised at the end of the term "without regard to the situation or value of the premises leiised," and pay such value, or should renew, it was held that, on his refusal to renew, he was liable for the value of all improvements, and not merely of those removable by the tenant.'*^ The fact that by the lease the tenant is under the obligation to keep fencing in repair does not relieve the landlord from lia- bility, under his covenant to pay for improvements, to pay the value of fencing placed around part of the premises not fenced at the time of the lease.^^ A covenant to pay for "all the buildings and improvements that may be made on said lands" has been said to include only such as are upon the premises at the end of the term.-*-' It has been decided that, where the lessee covenanted to build a dwelling house, and the lessor covenanted that if the lessee per- formed such covenant he, the lessor, would either grant a renewal or pay the value of the house, the lessor was not bound by his 37Tuttle V. Leiter, 82 Fed. 947; "Hopkins v. Oilman. 47 Wis. 581, Wheeler v. Hill, IC Me. 329. 3 n. W. 382, 32 Am. Rep. 781. 38Wray v. Rhinelander, 52 Barb. 42 Hazlewood v. Pennybacker (Tex. (N. J-) 553- Ci.p ^ ) 50 g ^. ^99 39 Smith V. Cooley, 5 Daly (N. Y.) iQ-, *3 Van Rensselaer's Heirs v. Pen- 40Delshler v. Golbaugh, 2 Ky. niman, 6 Wend. (N. Y.) 569. Law Rep. 231. § 271 IMPROVEMENTS WITHIN STIPULATION. 1699 covenant to renew or pay if the lessee erected a building of an- other character and not a dwelling house.*^ But a stipulation as to the character of the building to be erected by the lessee may be waived by the lessor, so as to make hira liable to pay therefor under his covenant, though the building erected is different from that stipulated, and it was held that the lessor, by signing and accepting a written waiver of the lessee's option to take a re- newal, which renewal was to be given only if the lessee had per- formed his covenants^ thereby admitted performance of the les- see's covenant to erect a building according to certain specifica- tions, and was consequently liable under his covenant to pay therefor.^^ In the same case, it was decided that if the lessee's covenant to erect a certain class of building goes to a part only of the consideration, and a breach thereof may be compensated in damages, the lessor cannot assert such breach as a ground for refusing to pay for the building as agreed.*^ When the lessee thus covenanted to erect a building, and the lessor covenanted to pay the fair value thereof at the end of the term, a release by the lessor of the lessee's covenant to build was held not necessarily to deprive him of the right to build, and it was decided that, if he did build voluntarily, the lessor was liable under his covenant for the value of the building.'*'^ The lessor, having agreed to pay the value of a building which the lessee is given permission to erect, cannot avoid liability under such agree- ment by notifying the lessee not to build it.^^ e. Effect of renewal or extension. The fact that the lease is 44 Mcintosh V. St. Philip's Church, was accordingly there decided that 120 N. Y. 7, 23 N. E. 984. In Fisher a right in the lessee to be paid V. Fisher, 1 Bradf. Sur. (N. Y.) 335, $5,000 for its building at the end of it was held that where the lessor the term was not defeated by the covenanted to renew, or pay the fact that the building was not fin- value of "such buildings as should ished exactly as provided in the be erected in pursuance of the lease, the lessor having received the lease," he was not liable if he rent, amounting to over $100,000 failed to have the buildings on the during the ten years of the lease, premises made fireproof as stipulat- and the building having cost over ed on his part in the instrument of $30,000. lease. ^^ Smith v. St. Philip's Church, 45 Palmer v. Meriden Britannia 107 N. Y. 610, 14 N. E. 825. Co., 188 111. 508, 59 N. E. 247. is McVicker v. Dennison, 45 Pa. 4c Palmer v. Meriden Britannia 390. Co., 188 111. 508, 59 N. E. 247. It 1700 PAYMENT FOR TENANT'S IMPROVEMENTS. § 271 renewed or extended has been held not to deprive the Isssee of tlie right to compensation as provided by the original lease.^^ And so it has been decided that, where a lease for fifteen years provided that the lessor might, six months before the end of the U'vm, take possession and pay for improvements made by the les- see, and that in case of failure* to give the notice the tenancy should be regarded as renewed for five years on the same terms and conditions, the lessee's right to payment for improvements existed at the end of any renewal term as well as at the end of the original term.^*^ Elsewhere, however, it has been decided that when the lease provided for payment for improvements if it was not renewed, the lessee was not entitled to the value of improve- ments on the property at the end of a renewal term,^^ and a like view was asserted even when the renewal was of the lease "witli all its conditions unchanged and unimpaired. "^2 That the prom- ise to pay for improvements is conditioned on the tenant's per- formance of his stipulations ** during this term and the renewed term" does not exclude compensation because the lease is not re- newed.'^ f. Effect of tenant's breach of covenant. In New York it has been decided that the lessor is under no obligation to pay the value of improvements under his covenant so to do, if the les- see has failed to perform covenants on his part to be performed at a time prior to such payment, such as covenants for the pay- ment of taxes, water rates, or rent.^^ But in ^Missouri it was held that a provision that "the agreements in the lease being per- formed," the lessor will pay for improvements, did not make the lessor's liability for improvements dependent on the perform- ance of the lessee's agreements.^^ And in Pennsylvania it was 49 Lane v. Moeder, 1 Cab. & El. People's Bank v. Mitchell, 73 N. Y. 548; Livingston v. Sulzer, 19 Hiin 406; Glaser v. Cumisky, 40 N. Y. St. (N.' Y.) 375. P-ep. 872, 16 N. Y. Supp. 89. In the 50 Schoellkopf v. Ooatsworth, 166 second case cited it is decided that N. Y. 77, 59 N. E. 710. such breach of covenant by the ten- r.i King v. Wilson, 98 Va. 259, 35 ant is not waived, for this purpose, S. E. 727. tjy the fact that the lessor joins in 52 Kash V. Huncheon, 1 Ind. App. procuring an appraisement of the 361, 27 N. E. 645. improvements as provided by the 63 Butler V. Manny, 52 Mo. 497. lease, he being at the time ignorant 64 Johnston v. Bates, 48 N. Y. of the breach. Super. Ct. (16 Jones & S.) 180; 55 Butler v. Manny, 52 Mo. 497. § 271 EFFECT OF FORFEITURE OF LEASEHOLD. i;o| considered, apparently, that the tenant 's breach of an agreement on his part to be performed justified the landlord's nonperform- ance of his promise to pay for improvements only when such agreement "was an essential part of the contract without which the lease would not have been signed. "^^ g. Effect of forfeiture of leasehold. When the lease provides that payment-s for improvements shall be made at the expiration of the "term," the latter word, it has been decided, refers to the time named for the duration of the tenancy, and not to the lease- hold interest, so that there is, in case of forfeiture, no right to immediate payment.^''' An agreement to pay for the tenant's improvements, if he loses possession before the expiration of the term, has been held to impose no liability in case of a forfeiture for the tenant's breacli of condition.ss A tenant, by disclaiming the title of his landlord, has been held thereby to lose the benefit of a provision of this character.^^ It does not appear to have been decided whether the benefit of such a provision is lost by a forfeiture for breach of an express condi- tion of the lease. The decisions above referred to, that a right to immediate compensation does not exist,^*^ might perhaps sug- gest that compensation may be claimed at the end of the term of the lease.^i h. Change of parties to tenancy. An agreement by the lessor 56 Cosgrave v. Hammill, 173 Pa. ss Wilcoxen v. Hybarger, 1 Incl. T. 207, 33 Atl. 10-15. 138, 38 S. W. 669. BT Lawrence v. Knight, 11 Cal. 298, b9 McQueen v. Chouteau's Heirs, 70 Am. Dec. 779; Finkelmeier v. 20 Mo. 222, 64 Am. Dec. 178, Bates, 92 N. Y. 172; Johnston v. eo See ante, note 57. Bates, 48 N. Y. Super. Ct. (16 Jones ei In Lawrence v. Knight, 11 Cal. & S.) 180; Glaser v. Cumisky, 40 N. 298, 70 Am. Dec. 779; Finlielmeier Y. St. Rep. 872, 16 N. Y. Supp. 89; V- Bates, 92 N. Y. 172, the court ex- Lent v. Curtis, 24 Ohio Cir. Ct. R. P^essly refrains from considering 592. In Kutter v. Smith. 69 U. S. ^^^ "^hts of the tenant in this re- (2 Wall.) 491, it was similarly de- cided, as to a stipulation to pay gard at the end of the term. In Kutter V. Smith, 69 U. S. (2 Wall.) ^ 491, the larfguage of the opinion ap- for improvements at a date named. ^^^^.^ ^^ ^^^^^ ^^^ ^.^^ ^^^^ ^^^ that it did not involve any obiiga- ^j^^^^ .^^ compensation is lost by for- tion to pay for them at an earlier feiture and re-entry. In Lent v. date, upon the enforcement of a Curtis, 24 Ohio Cir. Ct. R. 592, the forfeiture. contrary view is clearly asserted. 1702 PAYMENT FOR TENANT'S IMPROVEMENTS. § 271 to pay the lessee the value of improvements made by the latter is one which concerns the land, and therefore the benefit thereof may pass to the assignee of the lessee, as being within the stat- ute of 32 Henry 8, c. 34.^2 go far, however, as ree:ar(ls improve- ments consisting of new erections not existent at the time of the lease, the rule in Spencer's Case, that a covenant as to things not in esse at that time does not pass unless assitzns are men- tioned,^^" has occasionally been applied,^^ i^^t this rule has been regarded as inapplicable in the case of improvements made upon buildings in existence at the time of the demise.^^ Since a sub- lease does not have the etfect of placing the sublessee in privity with the lessor, the benefit of the covenant does not pass to the sublessee,*"^ and it has apparently been decided that it does not pass to an assignee, if the intention appears to be that it shall not pass.^'^ A mortgagee of the leasehold is, in jurisdictions where a mortgage passes the legal title, entitled to the benefit of the cove- nant to the same extent as an absolute assicrnee.^^ It seems that an assignee of the leasehold would be entitled to the benefit of the covenant, although the lease prohibits any assignment, such a prohibition not ordinarily affecting the validity of the assignment itself.^'s In one case, where there was such a prohibition of an assignment, it was decided that the assignee could not recover 62 See CofTm v. Talman, 8 N. Y. stipulation in favor of the lessee of (4 Seld.) 4C5; Stockett v. Howard, the right to remove the improve- 34 Md. 121; Smith v. St. Philip's ments," which "would probably run Church, 107 N. Y. 610, 14 N. E. 825; with the land." Anderson v. Am- Lametti v. Anderson, 6 Cow. (N. monett. 77 Tenn. (9 Lea) 1. Y.) 308; Thompson v. Rose, 8 Cow. 62a See ante, § 149 b (4). (N. Y.) 266; Schoellkopf v. Coats- 63 Coff.n v. Talman, 8 N. Y. (4 worth, 166 N. Y. 71, 59 N. E. 710; Seld.) 565: Thompson v. Rose, 8 Bailey v. Richardson, 66 Cal. 416, 5 Cow. (N. Y.) 266; Cronin v. Wat- Pac. 910; Hunt v. Danforth, 2 Curt, kins, 1 Tenn. Ch. 119. See Holly- 592, Fed. Cas. No. 6,887; Conover v. wood v. First Parish in Brockton, Smith, 17 N. J. Eq. (2 C. E. Green) 192 Mass. 269, 78 N. E. 124, 7 L. R. 51, 86 Am. Dec. 247. A. (N. S.) 621. A stipulation for the valuation g4 Conover v. Smith, 17 N. J. Eq. of improvements at the expiration (2 C. E. Green) 51, 86 Am. Dec. of the term, and for a surrender of 247. See Spencer's Case, 5 Coke, 16. the premises upon the payment es Tuttle v. Leiter, 82 Fed. 947. thereof, retaining a lien on the im- ee Tuttle v. Leiter, 82 Fed. 947. provements for the amount of the e? Stockett v. Howard, 34 Md. 121. valuation if not paid, "may be con- cs See ante, § 152 j (2). sidered as an analagous to the usual . 271 CHANGE OF PARTIES TO TENANCY. 1703 on the coyenant,«« but there the decision of the majority of the court was based on the ground that, as the term had expired at the time of the assignment, this was a transfer of the interest under an oral lease merely, and so not within the statute of 32 Henry 8, c. 34. Though the assignee is ordinarily entitled to the compensation rather than the lessee himself, he cannot assert any claim thereto as against the lessor, if the latter has paid such com- pensation to the original lessee without notice of the assignment.' The transfer by the lessee of all his right, title, and interest in and to the lease, has been held to transfer the right to the build- ings and the alternative right to payment therefor.^i And an as- signment of the lease will pass the benefit of a stipulation for a liln for the value of the improvements.-^^ it has been decided that thou-h the lessee occupies the premises as a homestead and consequently cannot transfer his leasehold interest without the joinder of his wife, he may, without her joinder, assign his rights under the lessor's covenant to pay for improvements." As upon an assignment of the leasehold interest the benefit of the ac-reement to pay for improvements may pass to the assignee, so upon a transfer of the reversion the burden of the agreement will pass to the lessor as a covenant running with the land, pro- vided at least "assigns" are named in the covenant."^^ Ordinarily it has been held not to pass, so as to entitle the lessee to compen- sation as against a transferee, when - assigns" are not mentioned in the covenant or agreement,^'^ though in some jurisdictions this c«Elliottv. Johnson. L.R. 2 Q.B. t2 Anderson v. Ammonett. 77 -2Q Tenn. (9 Lea) 1. 70 Cronin v. Watkins. 1 Tenn. Ch. 73 Pelan v. DeBevard, 13 Iowa, 53. 119 The recent case of Smyth v. 74 That a devisee of the landlord Stoddard, 203 111. 424, 67 N. E. 980, for life, who is in receipt of the 96 Am St Rep. 314, ante, note 33. rents and profits, is the person sub- is apparently to the effect that the ject to the liability, see Mansel v. lessor has no right to transfer the Norton, 22 Ch. Div. 7C9. reversion without reserving the im- 75 Grey v. Cuthbertson, 4 Doug, provements which the lessee has a 351; McClary v. Jackson, 13 Ont. right, by the terms of the lease, 310; Etowah Min. Co. v. Wills Val- either to remove or claim compensa- ley Min. & Mfg. Co., 121 Ala. 672, 25 ^jQjj for. So. 720; Hansen v. Meyer, 81 111. 71 California Annual Conference V. 321, 25 Am. Rep. 282; Watson v. Seitz 74 Cal. 287, 15 Pac. 839. See Gardner, 119 111. 312, 10 N. E. 19^; Tsman v. Hanscom. 217 Pa. 133, 66 Id.. 18 111. App. (18 Bradw.) 386; ^^1 329^ Coffin v, Talman, 8 N. Y. (4 Seld.) 1704 PAYMENT FOR TENANT'S IMPROVEifENTS. §271 distinction is not recognized, and the transferee of the reversion is held liable although assigns are not nainedJ* In perhaps two cases the fact that the lessee is under no obligation to make im- provements, but has merely the ripht to make them, is regarded as rendering the covenant to pay for improvements personal merely to the lessor and not binding on his transferee.''^ A covenant of this character will not bind one to whom the land is conveyed after the termination of the lease and relin- quishment of possession by the lessee, since the covenant has tlu-n been broken and turned into a right of action/^ The heirs of the lessor stand in the same position as regards liability under such a covenant, as do tlie transferees by convey- ance inter vtvos 79 A covenant by the lessor to make compensation for personalty brought on the land, but not affixed thereto, does not burden his transferee, this being in no sense a covenant running with the land.**^ 4f,5; In re Hensliaw, 37 Misc. 536. 75 N. y. Supp. 1047; Bream & Co. v. Dickereon, 21 Tenn. (2 Kuniph.) 126. See ante, § 149 b (2). 76Frecerick v. Callaban, 40 Iowa, 311; Ec&e v. Fetzer, 65 Wis. 55, 23 K. W. 266. In Schoellkopf v. Coatsworth, 166 N. Y. 77, 59 N. E. 710, where the lea3« proYided that the lease should be regarded as renewed for another five years unless the lessors notified the lessee, his executors, administra- tors or assigns, at least six months before the end of the term, of their election to pay for certain buildings to be erected by the lessee, and the transferee of the lessor gave such no- tice, and accordingly recovered pos- session at the end of the term from assignees of the lessee, it was de- cided ti,at the lesssee's assignee could recover against the lessor's transferee under the provision as to payment for buildings. There, though the transferee was held bound, the covenant did not in terms bind "assigns." The decl- Klon is, however, in part, based up- on the state of the pleadings. In Bell V. Bitner, 33 Ind. App. 6. 70 N. E. 549, the lessee was not al- lowed to set off, in an action for rent by the lessor's transferees, a claim on account of a promise by the lessor to pay for improvements, the answer not alleging that the de- fendant "has any equitable or other lien on the rents due plaintiffs, nor that there is any personal liability on the part of plaintiffs for the amount claimed to be due defend- ant." 77 Etowah Min. Co. v. Wills Valley Min. & Mfg. Co., 121 Ala. 672, 25 So. 720; Gardner v. Samuels, 116 Cal. 84. 47 Pac. 935, 58 Am. St. Rep. 135. Tf' Coffin v. Talman, 8 N. Y. (4 Seld.) 465; Gardner v. Samuels, 116 Cal. 84, 47 Pac. 935, 58 Am. St. Rep. 135. 79 Hazlewood v. Pennybacker (Tex. Civ. App.) 50 S. W. 199. 80 Etowah Min. Co. v. Wills Val- I 271 TITLE TO IMPROVEMENTS. 1705 The tenant is entitled to the benefit of the lessor's covenant to pay for improvements, which was in terms conditioned upon the delivery of possession at the end of the term to the lessor, al- though the delivery of possession was to the lessor's transferee, such delivery being in effect authorized by the transfer of the re- version.^i i. Title to improvements. The fact that the lessor covenants to pay the lessee at the end of the term for improvements made by the latter should not, it seems, affect the title to the improve- ments erected by him,^^ g^^^j go it occasionally has been decided that, in view of the character of a building erected by the les- see, for which the lessor was to make compensation, it belonged to the lessor immediately on its erection.^^ In another case, how- ever, an agreement to pay for the building, in connection with other stipulations, was regarded as recognizing the title as being in the lessee.^^ And where the lease provided that the tenant might either remove the building erected by him or require the landlord to take it at a stipulated price, a notice by the tenant to the landlord to take the building was regarded as vesting the title to the building in the landlord, the title being thus, by im- plication, regarded as in the tenant till such election.^s So when the lease contained a covenant by the lessor to purchase the build- ings at a price to be fixed by appraisers, it was said that, upon the expiration of the term, "by operation of law they would be- come the property of the lessor without any conveyance or transfer. ' '^^ ley Mil). & Mfg. Co., 121 Ala. 672, 25 51 Conn. 259. In Howe's Cave Ass'n So. 720; Gorton v. Gregory, 3 Best v. Houck, 66 Hun, 205, 21 N. Y. & S. 90. Supp. 40, it was decided that where S5 Smyth v. Stoddard, 203 111. 424, the lease provided that, if the les- 67 N. B. 980, 96 Am. St. Rep. 314, sor refused to renew he should pay ante, notes 33, 70. for the buildings then on the prem- fi2 Bee, as to the title to fixtures ises, and that such payment should annexed by the tenant, ante, chap- pass title to the buildings, a renewal ter XXIII. did not so pass title, or deprive the B3 Kutter V. Smith, 69 U. S. (2 lessee of his right to remove the "Wall.) 491, 17 Law. Ed. 830; Bass buildings as trade fixtures. V. Metropolitan "West Side El. R. Co. so Allen v. Gates, 73 Vt. 222, 50 (C. C. A.) 82 Fed. 857, 39 L. R. A. Atl. 1092. 711. 8c. Hood V. Hartshorn, 100 Mass. 84 Russell V. City of New Haven, 117, 1 Am. Rep. 89. 1706 PAYMENT FOR TENANT'S IMPROVEMENTS. § 271 j. Valuation of improvements. It has in one statu been de- cided that, in the particular case, the lessor's covenant to pay the value of tlie improvements refers to the value at the time of the expiration of the tenancy,'*'^ and such seems the natural con- struction of a provision for appraisement. In another state a provision that the lessee should be allowed for "improvements and betterments" was held to require improvements to be paid for at their reasonable cost at the time at which they were made.^"* The value of repairs which the tenant was expressly required to pay was held to be their value as contained in the structure, and not the value of the material if removed,*^ and the same view appears to have been adopted as to improvements made by the tenant, although the lease provided for thoir appraisement "with- out regard to the situation or value of the premises leased. """^ When the contract is to pay what the improvements are worth at the expiration of the lease, their oriirinal cost and their sub- sequent deterioration from use and abuse are, it has been decided, not to be considered.^^ The amount found due by appraisers named in accordance with the terms of the lease has been regarded as money due on an instrument of writing, within a statute authorizing the allow- ance of interest on money so due.''^ In one jurisdiction it has been held that the lessee is entitled to interest from the date of the determination of the value of the improvements, even though he thereafter wrongfully retains possession of the premises.^^ There is elsewhere, however, a contrary decision.^^ When, as is frequently the case, the instrument of lease provides that the value of the improvements shall be determined by ap- praisers, the appraisement thus made, by appraisers named in accordance with the terms of the lease, is, ordinarily at least, bind- 87 Berry v. Van Winkle, 2 N. J. Eq. oi Edwards v. Van Patten, 46 Kan. (1 H. W. Green) 390; Pintard v. 509, 26 Pac. 958. Irwin, 20 N. J. Law (Spencer) 497. 92 Pearson v. Sanderson, 128 111. sswisehart v. Grose, 71 Ind. 260. 88, 21 N. E. 200. Compare Shool- And see Ross v. Zuntz, 36 La. Ann, bred v. Elliott, 1 Brev. (S. C.) 423. 888. 93 Conger v. Ensler, 85 App. Dlv. soLadd V. Hawkes, 41 Or. 247, 68 564, 83 N. Y. Supp. 419. Pac. 422. 94 Hopkins v. Oilman, 47 Wis. 581, 00 Hopkins v. Gilman, 47 Wis. 581, 3 N. W. 382, 32 Am. Rep, 781. See 3 N. W. 382, 32 Am. Rep. 781. post, at note 121. § 271 VALUATION OF IMPROVEMENTS. 1707 ing on both parties.^^ The lease thus providing for the deter- mination of the value of the improvements by individuals acting as appraisers, the landlord cannot demand that the appraisement be submitted for approval to the probate court, although his in- terest in the land is that of a guardian merely .^^ If the lease provides for an appraisement by three persons, a determination by a majority merely is not binding.^'^ Such a provision for appraisement has usually not been re- garded as constituting a submission to arbitration,'''^ and conse- quently a notice to the parties, before making the appraisement, has been held to be unnecessary .^^ It has, however, occasionally been held that it does constitute a submission to arbitration,^'^*^ and in one case it was explicitly decided that notice to the par- ties was necessary, the appraisement involving to some extent a construction of the language of the provision.^^i If the lessor refuses to join in the naming of appraisers as pro- vided by the lease, the lessee, it has been decided, may sue to re- cover the value of the improvements.^®^ But before he can so sue he must have done all in his power to procure an appraisement, and if one set of ajipraisers do not effectuate an appraisement, he must endeavor to ])rocure others, ^and whether he has thus acted with diligence is a question for the jury.'®^ If the parties cannot agree on appraisers, or the appraisers cannot agree on a valua- tion, the lessor, if not in fault, may proceed in equity to have the value of the improvements determined,^ °'* as may the lessee.^^^ 05 See Yeatman v. Clemens, 6 Mo. Johns. (N. Y.) 405; Janney Semple App. 210; Zorkowski v. Astor, 13 & Co. v. Goehringer, 52 Minn. 428, Misc. 507, 34 N. Y. Supp. 948. 54 N. W. 481. This view is indicat- i<6 Nichols V. Sargent, 125 111. 30y, ed in Hood v. Hartshorn, 100 Mass. 17 N. E. 475, 8 Am. St. Rep. 378. 117, 1 Am. Rep. 89. 87 Lorenzo v. Derry, 26 Hun (N. loi Janney Semple & Co. v. Goeh- y.) 447. ringer, 52 Minn. 428, 54 N. W. 481. 08 California Annual Conference v. 102 Morton v. Weir, 70 N. Y. 247, Seitz, 74 Cal. 287, 15 Pac. 839; 26 Am. Rep. 583. Pearson v. Sanderson, 128 111. 88, 21 103 Hood v. Hartshorn, 100 Mass. N. E. 200; Pintard v. Irwin, 20 N. J. 117, 1 Am. Rep. 89. See HoUiday Law (Spencer) 497; Flint v. Pearce, v. Marshall, 7 Johns. (N. Y.) 211. 11 R. I. 576. 10* Reformed Protestant Church v. 08 Pearson v. Sanderson, 128 111. Parkhurst, 17 N. Y. Super. Ct. (4 88, 21 N. B. 200. See ante, § 173 d, Bosw.) 491; Conger v. Ensler, 85 at note 234. App. Div. 564, 83 N. Y. Supp. 419. 100 Van Cortlandt v. Underhill, 17 105 Bales v. Gilbert, 84 Mo. App. 1708 PAYMENT FOR TENANT'S IMPROVEMENTS. § 271 In one case it was dccidotl tliat, -when the lease provided for the appointment of one appraiser by each party, these to appoint a third in case of disagreement, the lessor might, if the lessee re- fused to appoint one appraiser, himself appoint two, whose ap- praisement should be binding.i*^^ This, however, appears rather questionable.^"" k. Possession of premises pending payment. Upon the ques- tion whether, if the landlord fails to pay for the tenant's improve- ments at the end of the term as agreed, the tenant may retain possession of the premises until the payment is made, the deci- sions are not in accord. Since the right to compensation itself is purely the result of express contract, it might seem that the right so to retain possession could exist only by express stipulation to that effect, and it has been so decided in several cases. ^'^^ In New York it has been decided that the provision of a lease that in case the lessors did not give six months' notice of their elec- tion to take possession of the premises at the end of the term, and to pay for the buildings then standing thereon at a value to be determined by appraisers to be appointed, they would renew the lease for a further term, did not require payment for the building as a condition precedent to the lessee's obligation to relinquish possession,^ '^^ and the same view was taken in that state even when the lease provided for the lessee's relinquishment of possession at the end of the term "upon the lessor's payment for improve- ments. "^^^ A right to retain possession till payment for improve- 675; Hug v. Van Burkleo, 58 Mo. Tenn. (2 Humph.) 126; Hite v. 202; White Stone Quarry Co. v. Bel- Parks, 2 Tenn. Ch. 373; Swift v. knap & D. Stone Co., 13 Ky. Law Rep. Sheehy, 88 Fed. 924. And see cases 244, 16 S. W. 354, 17 S. W. 162; denying the existence of a lien for Hopkins v. Gilman, 22 "Wis. 476. the value of the improvements, post, See City of Providence v. Master of note 129. St. John's Lodge, 2 R. I. 46. io9 In re Coatsworth, 160 N. Y. 106 Conner V. Jones, 28 Cal. 59. 114, 54 N. E. 665. But see the 107 In Smith v. St. Philip's Church, statement quoted from Van Beuren 107 N. Y. 610, 14 N. B. 825, there v. Wotherspoon, 164 N. Y. 368, 57 nvas a provision in the lease that, N. E. 633, at note 115, post. if either party failed to name an noTallman v. Coffin, 4 N. Y. (4 appraiser, the one named by the Comst.) 134. This would rather other might name one to act with seem to overrule Van Rensselaer's him. Heirs v. Penniman, 6 Wend. (N. Y.) 108 Speers v. Flack, 34 Mo. 101, 84 569, where there was a practically Aip. Dec. 74; Bream v. Dickerson, 21 similar covenant, and the lessee was § 271 POSSESSION OF PREMISES PENDING PAYMENT. 1709 ments was evidently not contemplated by a provision requiring the lessor to pay the appraised value within thirty days after ap- praisal and surrender of possession,^ ^^ nor by a covenant for ap- praisement and payment of the appraised value in one, two and three years after the expiration of the term, the lease also contain- ing a covenant by the lessee to relinquish possession at the end of the term.112 Even though the lease expressly provides that the lessee shall retain possession till compensated for improvements, the lessor is entitled to recover possession upon tendering the full value of the improvements, it has been decided, though this is not accepted, and he need not proceed in equity to compel the accept- ance of the tender.113 By some decisions the lessee is regarded as entitled to retain possession imtil the stipulated compensation is paid, although there is no express language giving him such a right, on the theory, apparently, that he has an equitable lien on the premises for the value of his improvements, and that for this reason equity will protect his possession till payment therefor.i^* In New York, when the lessor's covenant was either to pay the value of the im- provements or to grant a new lease, it was said that "the lessee at the expiration of the term is entitled to retain the possession until the covenant shall be performed by the lessor. "^^^ Jq other states, likewise, such alternative provisions for a renewal or pay- ment for improvements have been decided to give the lessee the right to retain possession till such payment is made,*!^ and it does held to be entitled to retain pos- Co.. 35 Neb. 766, 53 N. W. 979; Mul- session till paid. This earlier case len v. Pugh, 16 Ind. App. 337, 45 is, however, referred to with ap- N. E. 347. proval in In re Coatsworth, 160 N. us Van Beuren v. Wotherspoon, Y. 114, 54 N. E. 665. 164 N. Y. 368, 57 N. E. 633. But see 111 Bresler v. Darmstaetter, 57 In re Coatsworth, 160 N. Y. 114, 54 Mich. 311, 23 N. W. 825. N. E. 665, ante, note 109. 112 Manigault v. Carroll, 1 McCord iie Franklin Land, Mill & Water Law (S. C.) 91. Co. v. Card, 84 Me. 528, 24 Atl. 960; 113 Fraer v. Washington, 60 C. C. Gray v. Cornwall, 95 Ky. 566, 26 S. A. 194, 125 Fed. 280. W. lOlS; Holsman v. Abrams, 9 N. 114 Franklin Land, Mill & Water Y. Super. Ct. (2 Duer) 435; Mullen Co. V. Card, 84 Me. 528, 24 Atl. 960; v. Pugh, 16 Ind. App. 337, 45 N. E. Hopkins v. Oilman, 22 Wis. 476; Id., 347. In the case first cited, it is 47 Wis. 581. 3 N. W. 382, 32 Am. said that "the very terms of the Rep. 781; Eoke v. Fetzer, 65 Wis. 55, lease imply" such an agreement. 26 N. W. 266; Haynes v. Union Inv. 1710 PAYMENT FOR TENANT'S IMPROVEMENTS. § 271 not eloarly app'^ar that the deeisioTif? might not have been the same even had there been no alternative right of renewal. A provision that the lessee shall give up possession when the value of the improvements is paid to him evidently contemplates a retention of possession till this is done.^^^ Occasionally the pro vision is for retention of possession till the value of the improve- ments is repaid to the les.sce from the rents and profits.^ ^^ In one state it was held that, even though the lease expressly provided for retention of posse?;sion till payment of compensatitm, t'nis did not enable the lessor to defer such payment indefinitely, allow- ing the lessee to retain possession, and that it was proper for equity to order a sale under the lien for the value of the improve- ments.i^^ If the lessee retains possession after the term, on account of nonpayment for improvements, and this is recognized as rightful, either by reason of the provisions of the lease or otherwise, he is, it has been decided, in the position of a mortgagee in possession, and so liable for the rents and profits of the premises,^ 20 -while he is entitled, it has been decided, to interest on his claim for com- pensation, computed from the time at which this is ascertained.^21 By other cases the tenant holding over for this cause is not re- garded as a mortgagee in possession, but as holding under the lease, and so liable for rent at the rate named in the lease and for no more. ^-2 117 Moshassuck Encampment v. In Hopkins v. Gilman, 47 Wis. 581, Arnold & Maine, 25 R. I. 65, 54 Atl. 3 N. W. 382, 32 Am. Rep. 781, It is 771; Douglaston Realty Co. v. Hess, said that "under the circumstances, 124 App. Div. 508, 108 N. Y. Supp. we are disposed to treat the plain- 1036. But see Tallraan v. Coffin, 4 tiff like a mortgagee in possession N. Y. (4 Comst.) 134, ante, note 110. after condition broken, liable for lis Batchelder v. Dean, 16 N. H. the rent and the payment of the 265. taxes stipulated in the lease, but 119 Gray v. Cornwall, 95 Ky. 566, that he is not entitled to interest on 26 S. W. 1018. the value of his improvements." 120 Scruggs V. Memphis & C. R. i-i Scruggs v. Memphis & C. R. Co., 108 U. S. 368, 27 Law. Ed. 756, Co., 108 U. S. 368, 27 Law. Ed. 756. approved in Franklin Land, Mill & But see Hopkins v. Gilman, 47 Wis. Water Co. v. Card, 84 Me. 528, 24 581, 3 N. W. 382, 32 Am. Rep. 781, Atl. 960. And see State v. Pass- quoted in last preceding note, and more, 61 Ark. 363, 33 S. W. 214; also notes 92-94, ante. Moshapsuck Encampment v. Arnold 122 Van Beuren v. Wotherspoon, & Maine, 25 R. I. 65, 54 AU. 771. 164 N. Y. 368, 57 N. E. 633; Hols- § 271 LIEN. 1711 If the retention of possession is due to the fault of the tenant, as when he refuses to join in the appraisement of the improve- ments in accordance with the terms of the lease, he is then, it has been decided, liable for the value of the use and occupation,i23 and he should, it seems, be subject to the same liabilities, such as that for double value, as in any case of wrongful holding over.i24 It has also been decided that, for his occupation pending negotia- tions for a renewal, he can be charged only in the amount of the rent named in the lease. ^ 24a 1. Enforcement of payment — Lien. In case of breach by the lessor of an agreement of this character, the lessee may no doubt bring an action at law for damages.^ 25 j^ \^r^^ been said, how- ever, that "cases of this sort are proper matters for the considera- tion of courts of equity, where specific performance may be re- quired, or the rights of the parties may otherwise be determined as equitable principles may require. "^26 ^jj(j equity obviously has jurisdiction of a proceeding to enforce a lien for the value of the improvements, conceding that such a lien exists.^ 27 Though there are a number of cases to the effect that the land- lord has a lien upon the premises for the value of the improve- ments,^28 there are also decisions to the contrary.129 ^he exist- man v. Abrams, 9 N. Y. Super. Ct. Canal Elevator Co. v. Brown, 36 (2 Duer) 435. Ohio St. 660. 123 Conger v. Ensler, 85 App. Ulv. i2901, § 2; Indiana, Burns' Ann. St. 1901, § § 20. 7106; loioa Code 1897, § 4208; Kan- ss Colorado, Mills' Ann. St. 1891. sas Gen. St. 1905, § 5841; Kentucky § 1973; Florida Gen. St. 1906, § 2227; J 273 BY AND AGAINST WHOM MAINTAINABLE. 1723 names a "tenant at will" as a proper subject for the proceed- ing,36 but on the other hand some statutes use language not well ad°a'pted to the case of a tenancy at will, in providing that the proceeding may be maintained against a tenant holding over after the time or the term for which the premises were let,37 or when the lease terminates by lapse of timers or by its own stipu- 1 RtlOHS ^ The statutes occasionally provide for the maintenance of the proceeding against a "tenant at sufferance. "^^ Since a tenant at sufferance is ordinarily^i a tenant for years or at will wrong- fully holding over, such a provision would seem to be approxi- mately included in the provisions for the maintenance of the pro- ceeding against tenants holding over. A few of the statutes make specific provision for the mainte- nance of the proceeding against a periodic tenant,^!"^ and when the proceeding is authorized against a tenant or lessee without reference to a particular character of tenancy, a periodic tenant is evidently within the terms of the statute. When, however, several classes of tenancies are named, without naming a periodic tenancv, a question might arise as to whether such a tenancy is to be regarded as within the scope of the statute. It has been Mississippi Code 1906. § 2885; New Rev. St. 1903, § 5087; Texas Rev. Jersey 2 Gen. St. p. 1922, § 30; Penn- St. 1895, art. 2519; Wyoming Rev. svJvania, Pepper & Lewis' Dig. Laws, St. 1899. § 4486. "Landlord & Tenant." § 34; Wtscon- ss Connecticut Gen. St. 1902. § sin Rev. St. 1898, § 3358. 1078. z<^ California Code Civ. Proc. § 39 Vermont Pub. St. § 1870. 1161- Colorado, Mills' Ann. St. 1891, ^o Colorado, Mill's Ann. St. 1891. 8 1973- Kentnclcy Civ. Code Proc. § § 1973; Florida Gen. St. 1906. §§ 451; Minnesota Rev. Laws 1905, § 2227. 1751; Georgia Code 1895 4038; Pennsylvania, Pepper & Lewis' 4813; MicMgan Coxnp. Laws 1897 § Die Laws "Landlord & Tenant," § 11164; Mississippi Code 19QQ, % 2SS5 f',- sZn Carolina Civ. Code 1902. New Jersey, 2 Gen St 1902 3; 8 94V TexasReY St 1895, art. 2521; New York Code Civ. Proc. § 2231. 1^1 clp Laws 1907, I 3575. Texas Rev. St. 1S95, art. 2521; W.. And citations in last note. consin Rev. St^ 1898, § 3358. 37 Arl^ansas, Kirby's Dig. St. 1904, " See ante. § 1^ a. 5 3630- Georrjia Code 1895, § 4813; ^^^ Maryland Code Pub. Gen. Laws MieMgan Comp. Laws 1897. § 11164; 1904, art. 53, § 6; Utah Comp Laws Sa Comp Laws 1900, § 3825; 1907, § 3.575; W.7H«.^on, Ball. Ann. Ohio Rev. St. 1906, § 6600; Oklahoma Codes & St. § 5o27 (2). 1724 SUMMARY PROCEEDINGS. § 273 deeiflod in one state that a provision for the maintennncc of the proceeding against a tenant at will authorizes it against a tenant from year to year,** and a statute authorizing the proceeding ** where lands are leased for one or more years or at will" has been construed as including a lease from month to month or for a term less than a year.'*^ A statute authorizing a proceeding against a tenant for one or more years has been held to authorize it against a tenant for a term less than a year.'*'* It is sufficiently obvious that a statute in terms applicable when the relation of landlord and tenant exists is not excluded by the fact that the tenant holds under a lease for life.*'^ In a number of cases it is asserted that not only must the re- lation of landlord and tenant exist, but that it must be the "con- ventional" relation of landlord and tenant, that is, it must be created by agreement."*® This statement involves an assumption that the relation may arise without agreement, "by operation of law," an assumption the correctness of which is, as has been be- fore indicated, open to most serious question.*^- ^^ The eases in which this asserted rule has been actually applied have usually been cases in which the parties were regarded, or might have been regarded, as standing in another relation, as that of mort- gagor and mortgagee,*^ master and servant,^^ or licensor and 42 Prouty V. Prouty, 5 How. Pr. 413, 45 N. W. .324, this rule was as- (N. Y.) 81; Wright v. Mosher, 1*3 serted and applied so as to preclude How. Ft. (N. Y.) 454. In Park v. a proceeding against persons who Castle, 19 How. Pr. (N. Y.) 29, he is had taken possession of their son's regarded as a tenant "for one or property under an agreement that more years," and so within the stat- they might live there during their ^j^g lives. It is not stated what the re- 43 Miller v. Johnson, 6 D. C. 51. lation was, if not that of landlord 44 Miller v. Johnson, 6 D. C. 51; ^"^ tenant, and whatever it was, it Shaffer v. Sutton, 5 Bin. (Pa.) 228. ^^""'^ ^°^°^ ^o have been strictly Compare the construction of the "conventional." See, also, Maxham ^ „ ^ . T. ^ r. . T>^. in V- Stewart, 133 Wis. 525, 113 N. W. English act. Doe d. Carter v. Roe, 10 Mees. & W. 670. ' 47, 4. See ante, § 17. 45FOSS v. Stanton, 76 Vt. 365, 57 40 Steele v. Bond, 28 Minn. 267, 9 ■A^t^- 9-*2- N. W. 772; Evertson v. Sutton, 5 4G Pico V. Cuyas, 48 Cal. 639; Sims Wend. (N. Y.) 281, 21 Am. Dec. 217; V. Humphrey, 4 Denio (N. Y.) 185; Hunter v. Maanum, 78 Y/is. 656, 48 Judd V. Arnold, 31 Minn. 430, 18 N. N. W. 51, 23 Am. St. Rep. 443. W. 151. In Buel v. Buel, 76 Wis. so people v. Annis, 45 Barb. (N. § 273 BY AND AGAINST WHOM MAINTAINABLE. 1725 lieensee,^^ or as standing in no legal relation whatever to one another.^2 It has been decided to be immaterial whether the tenant was or was not in possession before the making of the lease.^^ There is evidently no reason why such a consideration should be ma- terial. (3) Validity of lease. That the lease was for some reason in- valid or illegal, and so not enforcible, does not ordinarily exclude the summary proceeding to recover possession-^** In one case, however, where the lease was invalid because made by a married woman without proper formalities, it was held that she could not recover possession by such a proceeding.'^^ n would seem that, however invalid the actual lease might be in a particular case, the person purporting to enter thereunder should, as having en- tered by permission of the lessor, be regarded as his tenant, the invalidity of the lease operating only to preclude the tenant from Y.) 304; Russell v. Russell, 32 How. trespasser, and not a tenant of the Pr. (N. Y.) 400. owner in any sense. 51 Such was apparently the rela- ^>^ Willis v. Harrell, 118 Ga. 906, tion which was under consideration 45 S. E. 794. in Matthews v. Matthews, 49 Hun, s* Toby v. Schultz, 51 111. App. 487 346, 2 N. Y. Supp. 121, where the (lease for immoral purposes); Bru- owner of land had requested per- baker v. Poage, 17 Ky. (1 T. B. sons to come to live with him, he Mon.) 123 (oral lease within statute to board with them, and this was of frauds) ; Harrison v. Marshall, 7 done. If any tenancy existed in this Ky. (4 Bibb) 524 (ditto); Clarice v. case, it was clearly "conventional," as Barnes, 76 N. Y. 301, 32 Am. Rep. being based on agreement. The de- 306 (agricultural lease for prohib- cision that a summary proceeding Ited period); Murat v. Micand (Tex, will not lie under such circumstan- Civ. App.) 25 S. W. 312 (lease for ces is followed in Schreiber v. Gold- immoral purposes). So the fact smith, 35 Misc. 45, 70 N. Y. Supp. that the lessor was guilty of fraud 236. ^^ procuring the lessee to accept the 52 In Benjamin v. Benjamin. 5 N. ^^^se was held to be no defense. Y. (1 Seld.) 383, it was held that Simons v. Marshall, 3 G. Greene the "conventional relation" did not ^^«^^> ^^2. In Smelling v. Valley. , X, , 4. X 1 , 103 Mich. 580, 61 N. W. 878, the pro- arise where the owner's agent told ^. ' , , x - ij^^ J . . .^^ ceedmg was based on the nonpay- a person already m possession with- . . j.^ . , .. . , , . ment of the rent, and it was held out permission, that he might re- ^^^^ .^ ^^^ ^^ ^^^^^^^ ^^^^ ^^^ ^^^^^ main on certain terms, and the lat- ^^^ jj^^^^^ „^^^^ ^^^ ^^^^^^^^ ^^ ter did not accept the proposition, frauds, the lessee having taken pos- al though he remained. Such a per- session. son would seem to have been a mere ss Keller v. Klopfer, 3 Colo. 132, 1726 SUMMARY PROCEEDINGS. § 273 asserting a right to continue possession by force thereof, and sev- eral of the decisions first above cited are to this effect.-'"'^ b. By pGrson entitled to possession. As above stat^d,"*"^ the statute not infrequently provides that the proceeding shall be instituted by the person entitled to possession. In Massachusetts, where the statute in terms so provides, it has been held that one claiming under a conveyance by which a life estate is reserved to the grantor cannot recover against a lessee of such life ten- ant, but that the defendant must have entered under some per- son with whom the plaintiff is in privity-^^ This statute has also been there held not to authorize a proceeding by a stranger, claim- ing title paramount to that of the lessor, merely because the person in possession entered as lessce.^^ But it does, it has been decided, authorize a proceeding against a tenant at will by one to whom the landlord had leased the premises for years before undertaking to create the tenancy at will.'''' It has also been stated, in that jurisdiction, that when the term of a lessee ex- pires, the proceeding may be maintained by the lessor against a sublessee holding over.^^ c. By licensor against licensee. A mere licensee of the owner, it is evident, does not enter under a lease, and is not within a statute subjecting a lessee or tenant to a summary proceeding,^^ though a licensee of a tenant, may, it seems, be subject to re- moval by virtue of a proceeding by the landlord, as holding un- der the tenant.'''^ A servant also cannot be proceeded against as a tenant by his master in order to efl'ect his exclusion from the premises,^^ and this applies to one who is in possession as a mere 56 Robertson v. Birdie, 107 N. Y. es See post, at note 137. Supp. 75, is perhaps opposed to this 64 McQuade v. Emmons, 38 N. J. view. Law, 397; Jennings v. McCarthy, 16 57 See ante, at note 20. n. Y. Supp. 161; Haywood v. Miller, 58 Whitney v. Dart, 117 Mass. 153. 3 Hill (N. Y.) 90. But Morris Canal 59 Green v. Tourtellott, 65 Mass. ^.^ ^ Mitchell, 31 N. J. Law, 99. (11 Cush.) 227. seems to be contra. And the stat- 60 Hart V. Bouton, 152 Mass. 440, ^^^ occasionally provides expressly 25 N. E. 714. en TVT oc ^or ^ proceeding by an employer 61 Howard v. Mernam, 59 Mass. . , ^. , „ h t fifi^ against his employee. See New 62Henrv v Perrv, 110 Ga. 630. 36 ^«^^ ^ode Civ. Proc. § 2231: South S. E. 87; People v. Cushman, 1 Hun Carolinxi Civ. Code 1902, § 243; Tir- (N. Y.) 73; Wheeler v. Wheeler, 77 dinia Code 1904, § 2716. Vt 177, 59 Atl. 842 (semble). § 273 BY AND AGAINST WHOM MAINTAINABLE. 1727 " cropper, "^^ though if he is actually a tenant the fact that rent is paid by a division of the crops does not exclude the proceed- ing.^ d. By vendor against purchaser. The courts have almost in- variably held that a purchaser of land, who enters into possession of the land by permission of the vendor, before receiving a con- veyance of the legal title, is not a tenant of the vendor, so as to authorize a summary proceeding by the latter to regain possession upon default by such purchaser in the performance of his con- tract,^'^ and this has been decided to be so although it is expressly agreed at the time of sale that the purchaser shall hold as tenant of the vendor,<5s or that he shall so hold after default, with a lia- bility to expulsion by summary proceedings.^^ A different view 65Robson V. Cofield, 113 Ga. 1153, Neb. 671, 24 N. W. 339; People v. 39 S. E. 472; Gray v. Reynolds, 67 Bigelow, 11 How. Pr. (N. Y.) 84; N. J. Law, 169, 50 Atl. 670; Oakley McCorabs v. Wallace, 66 N. C. V. Schoonmaker, 15 Wend. (N. Y.) 481; Johnson v. Hauser, 82 N. 226. See Russell v. Russell, 32 How. C. 375; Chicago, B. & Q. R. Co. v. Pr. (N. Y.) 400. But in Wood v. Skupa, 16 Neb. 341, 20 N. W. 393; Garrison, 23 Ky. Law Rep. 295, 62 Carlisle v. Prior, 48 S. C. 183, 26 S. S. W. 728, it is assumed that the E. 244; Buel v. Buel, 76 Wis. 413, 45 proceeding lies against a mere crop- N. W. 324; Menominee River Lum- per, ber Co. v. Philbrook, 78 Wis. 142, 47 G6 Jones V. Durrer, 96 Cal. 95, 30 N. W. 188; Majham v. Stewart, 133 Pac. 1027 (semble). Wis. 525, 113 N. W. 972. Contra, It was held In Oakley v. Schoon- Dobson v. Culpepper, 23 Grat. (Va.) maker, 15 Wend. (N. Y.) 226, that 352. In Anderson v. Prindle, 23 the proceeding did not lie on account Wend. (N. Y.) 616, it was held that of the nonpayment of crop rent, one holding under a contract for a when the statute authorized the pro- lease was liable to the proceeding as ceeding on account of the nonpay- a tenant at will or sufferance upon ment of rent only in case of in- his refusal to accept a lease. It suflacient goods to satisfy a dis- seems somewhat difEcult to distin- tress, since such a rent could not be guish between the position of one collected by distress. in possession under a contract for a 6T Mason v. Delancy, 44 Ark. 444 f lease and one in possession under a Keller v. Klopfer, 3 Colo. 132; Brown contract for a conveyance in fee. V. Persons, 48 Ga. 60; Allread v. Har- ss Davis v. Hemenway, 27 Vt. 589; ris, 75 Ga. 687; Griffith v. Collins, Diggle v. Boulden, 48 Wis. 477. 4 N. 116 Ga. 420, 42 S. E. 743; Dakin v. W. 678, 33 Am. Rep. 817. Allen, 62 Mass. (8 Cush.) 33; Lyon eg Burkhart v. Tucker, 27 Misc. V. Cunningham, 136 Mass. 532; Kier- 724, 59 N. Y. Supp. 711; Hughes v. nan v. Linnehan, 151 Mass. 543, 24 Mason, 84 N. C. 472. N. E. 907; Dawson v. Dawson, 17 1728 Summary proceedings. § 273 has, however, been asserted in regard to the effect of a provision for a tenancy in case of default."*^ It would seem clear that the parties may at any time entirely terminate the relation of vendor and purchaser, and enter upon the relation of landlord and ten- ant, so as to authorize the proceedingJ^ The fact that a lease contains an agreement looking to the pos- sible purchase of the premises by the lessee does not prevent the maintenance of a sr.mmary proceeding against him."^ e. By grantee against grantor. A grantor in fee who is, by agreement, to retain posi5es;s;iou for a specified time after the con- veyance, has been regarded as a tenant of the grantee, and so subject to a summary proceeding if he retains possession beyond that tiraeJ^ A contrary view has, however, been asserted.^' One who retains possession, after making a conveyance, without any right thereto, would seem not to be a tenant of the grantee for any purpose,^^ nor in the position of one who has entered under a lease, so as to be liable to a summary proceeding by the granteeJ^* There are decisions, however, that he is so liable,"*^ 70 ish V. Morgan, 48 Ark. 413, 3 S. over have been held not to authorize W. 440; Patterson v. Folmar, 125 it against one who, after making a Ala. 130, 28 So. 450: Raynor v. Hag- lease, wrongfully excludes the les- gard, 18 Mich. 72, 100 Am. Dec. 146. see from possession. Goodwlne v. 71 It is so decided in Riley v. Jor- Barnett, 2 Ind. App. 16, 28 N. E. 115; dan, 75 N. C. 180. But it was held Knimvpide v. Schroeder, 56 Iowa, otherwise where the vendee, after 1'30, 9 N. W. 107; Freeborn v. La default by him, agreed to hold at a Londe, 118 Mich. 66, 77 N. W. 269. certain rent, the rent payments to There appears to be no more reason be applied on the purchase price, for regarding a grantor in fee, who Hughes V. Mason, 84 N. C. 472. wrongfully retains possession, as a Compare ante. § 43 b, c. tenant of the grantee, and as such 72 Norton v. Sturla, 83 Cal. 559, 23 subject to the proceeding, than for Pac. 527; Middlebury College v. Law- so regarding a grantor for years, that ton, 23 Vt. 688; Brauchle v. Nothhel- is, a lessor. fer, 107 Wis. 457, 83 N. W. 653. See One who claims the present right ante, § 257. of possession under a conveyance 73 Prichard v. Tabor, 104 Ga. 64, 30 from the complainant, by which S. E. 415. That he is properly a conveyance, however, a life estate tenant of the grantee, see ante, § 44. was reserved in favor of the com- 74 Sims V. Humphrey, 4 Denio (N. plainn.nt, is not subject to expulsion Y.) 185. by such a proceeding, as being a 75 See ante, § 44. tenant of the complainant. Sharpe 75a The statutes authorizing a v. Mathews, 123 Ga. 794, 51 S. E. 706. proceeding against a tenant holding 76 it is so decided in Pitkin v. § 273 BY AND AGAINST WHOM MAINTAINABLE. 1729 it being held in one case that he is so liable as being a tenant at sufferance of the granteeJ''' f. By raortgag-ee against mortgagor. The decisions are in substantial unison to the effect that a mortgagor, though retain- ing possession by agreement, is not the tenant of the mortgagee, in such a sense as to authorize a summary proceeding against him to recover possession upon his default."^ The fact even that there is actually a formal lease has been regarded as not author- izing the proceeding, if the lease is merely part of a transaction intended to secure the repayment of money,'^ as when the bor- rower conveys by absolute deed to the lender and the latter makes a lease to the former at a rent equal to the interest on the loan, with a covenant to convey the premises to the borrower on pay- ment of a sum equal to the amount of the loan.s" But in any jurisdictions where such a conveyance and lease back is a recog- nized mode of securing the repayment of a loan, the lessor would presumably be regarded as entitled to the same remedies to re- Burch, 48 Vt. 521; Bennett v. Robin- creditor should occupy the debtor's son, 27 Mich. 26. And see dictum land for one year and until the debt in McComts v. Wallace, 66 N. C. 481. was paid, the relation of landlord T7 Bennett v. Robinson, 27 Mich, and tenant was held to be created, 26. so that the debtor, on paying the 78 Willis V. Eastern Trust & B. Co., debt, could maintain the proceeding. 169 U. S. 295, 42 Law. Ed. 752; Neck- Hunt v. Comstock, 15 Wend. (N. Y.) lace V, West, 33 Ark. 682; Reed v. 665. Elwell, 46 Me. 270; Lamed V. Clarke, to Roach v. Cosine, 9 Wend. (N. 62 Mass. (8 Gush.) 29; Hastings v. y.) 227; Greer v. Wilfcar, 72 N. C. Pratt, 62 Mass. (8 Gush.) 121; Evert- 59^. cavig y. Kemenway, 27 Vt. 589; son V. Sutton, 5 Wend. (N. Y.) 281, piato v. Roe, 14 Wis. 453; Ragan v. 21 Am. Dec. 217; Roach v. Cosine, 8 Simpson, 27 Wis. 355; Nightingale v. Wend. (N. Y.) 228; McCombs v. Wal- Barens, 47 Vv^is. 389, 2 N. W. 767. lace, 66 N. C. 481; Davis v. Hemen- gut see Dougherty v. Thompson, 7 way, 27 Vt. 589; Nightingale v. Bar- Blackf. (Ind.) 277, contra. In Pea- ens, 47 Wis. 389, 2 N. W. 767; Hun- j,ie y. Hewlett, 76 N. Y. 574, it was ter V. Maanum, 78 Wis. 656, 48 N. decided that the proceeding would W. 51. 23 Am. St. Rep. 443. The not lie when the absolute deed and view that the mortgagor in posses- lease back were cloaks for usury. It sion by the mortgagee's consent is jg not stated whether. In the ab- not the latter's tenant is considered sence of usury, the proceeding would ante, § 45 a. In Hunt v. Comstock, have been maintainable. 15 Wend. (N. Y.) 665, 30 Am. Dec. so Steele v. Bond, 28 Minn., 267, 9 82, it having been agreed that a n. W. 772. E. and Ten. 109. 1730 SUMMARY PROCEEDINGS. § 273 cover possession as in the case of a lease not made for such a purpose. '^"^" g. By foreclosure purchaser against mortgagor. A mortgagor who refuses to yield possession in favor of a purchaser of the premises at foreclosure sale is, it would seem clear, not subject to a summary proceeding by the latter as being a tenant or lessee under him, and it has been so decided.^^ There is, however, at least one decision that the mortgagor so retaining possession is liable to the proceeding as a "tenant at sufferance, "^2 and occasionally such proceeding might be upheld against him by reason of an express provision in the mortgage that he should be a tenant of the purehr.ser.^^ h. By joint lessor or lessors. The fact that the owners in severalty of separate tracts of land joined in a lease which in- cluded both tracts does not, it has been held, prevent either owner from maintaining a proceeding to recover his tract.^* And it has been held that, by analogy to the rule which authorizes a joint owner to maintain ejeetment,^^ one of two joint lessors may maintain the proceeding in behalf of all and recover possession of 8oa See ante, § 45 d, at note 92. trust deed, when in such deed the 81 Necklace v. West. 33 Ark. 682; latter acknowledged himself the ten- McCombs V. Wallace, 66 N. C. 481. ant of the trustees, and expressly That it does not lie in favor of authorized such a proceeding against the purchaser against one in pos- him on behalf of the purchaser, session under the mortgagor, see An execution debtor does not Goodgion V. Latimer, 26 S. C. 208, stand in the relation of tenant to 2 S. E. 1. But that it does lie in his the purchaser at execution sale, so favor against one holding under a as to be subject to such a proceed- lease by the mortgagor subsequent ing on the part of the latter under a to the mortgage, see the Arkansas statute authorizing proceedings and Missouri cases cited ante, note against a tenant. Cummings v. Kil- 26. Patrick, 23 Miss. 106. But he may 82 Kinsley v. Ames, 43 Mass. (2 of course be made subject to such a Mete.) 29. proceeding by express statute. See 83 See Griffith v. Brackman, 97 Spraker v. Cook, 16 N. Y. 567. Tenn. 387, 37 S. W. 273, 49 L. R. A. s* New York & N. J. Tel. Co. v. De 338; Hamilton Bldg. & Loan Ass'n Gray, 65 N. J. Law, 156, 46 Atl. 651. V. Patton, 105 Tenn. 407, 58 S. W. That they might sue jointly in such 482. And see ante, § 47. In Chapin: case, see Oakes v. Munroe, 62 Mass. V. Billings, 91 111. 539, it is held (8 Cush.) 282. that a proceeding of forcible entry ss See Adams, Ejectment, 210; and detainer may be brought by the Freeman, Cotenancy, §§ 339, 340. purchaser against the maker of the . 273 BY AND AGAINST WHOM MAINTAINABLE3. 1731 the whole premises.^« Two joint owners of the land who made to one person separate leases of their undivided interests, at dit- ferent times and on different terms, and who, on expiration ot the leases, made separate demands for possession, cannot, it has been held, join in a proeeedinc^ for possession.^^ i By personal representative. The person entitled to posses- sion of the land as against the tenant, upon the death of a land- lord, is in most jurisdictions the heir or devisee, though m some the personal representative is given the possession for the pur- pose of settling the estate. Consequently the personal represen- tative is, it seems, in most jurisdictions, not entitled to maintam the proceeding's if the reversion is of a freehold nature. Oc- casionally a proceeding by him has been sustamed.sa A proceeding by the devisee and the personal representative, jointly, has been supported in a case where the lease by testator covered both his freehold and leasehold property .»<> An executor who has himself made the lease under a statutory power has been regarded as entitled to maintain the proceed- i' By guardian. A proceeding by a guardian of an infant en- titled to the property has been sustained,^^ as has one by a "con- scMullone v Klein. 55 N. J. Law. «« See Sweeney v. Mines, 31 Mo. 479 7 Atl Io2; Rabe v. Fyler, 18 240. In Moody v. Ronaldson. 8 Miss (10 Smedes & M.) 440. 48 Am. Ga. 652. it is said that smce the Dec 763- Mason v. Bascom. 42 Ky. statute authorizes a maintenance of nB Mon) 269. 38 Am. Dec. 186. the proceeding by the owner, his are to the effect that the grantee of agent or attorney, it in effect au- anvmdvided interest may maintain thorizes it by his administrator, the proceeding. But King v. Dicker- since the latter is the legal owner man 77 Mass (11 Gray) 480. seems for the purpose of paying debts and "' distributing the estate. The "widow of the lessor, entitled Occasionally the statute authorizes to dower though this had not been the "legal representative of the tZ^ea has been held to be en- landlord or person entitled to pos- itled to' institute the proceeding on session to file the co^painj.. Se^ her own behalf and on behalf of the M^ss^ss^pp^ Code 190 , § 2886 New >,oir« nf the lessor whose guardian Jerscij, 2 Gen. St. p. 1918. § 18, New sh was MO dy V Seaman. 46 Mich. Yor, Code Civ. Proc. § 2235. This 74 Tn W 711 probably includes the personal rep- 87 ware v. Warwick. 48 Ala. 295. resentative. 8s That he is not so entitled, see - People v. Dudley. 58 N Y. 323. Carlisle v Prior. 48 S. C. 183, 26 S. e^ Spear v. Lomax. 42 Ala. 576. Carlisle V. rii ^^ ^^ Gallagher v. David Steven- E. 244. 1732 SUMMARY PROCEEDINGS. § 273 Bcrvator," who has hy statute charge of and power to manage tlie estate of the ward.°3 k. By receiver. It has been decided that a receiver, appointed under the general equity power of the court, to lease propeiiy and collect rents, during the pendency of an action, has no power to institute the proceeding in his own name against one holding under a lease from one of the parties.^^ 1, By agent or attorney. A number of the statutes provide that the complaint of affidavit by which the summary proceeding is commenced may be made by the landlord or owner, "or his agent" or "his attorney. "^^ Whether this would ordinarily be construed to mean that the proceeding may be instituted in the name of the agent or attorney does not clearly appear. In one state it has been decided that it may be so instituted.^^' m. Effect of transfer of reversion. Some of the statutes ex- pressly give to one claiming under the lessor as assignee or trans- feree the same right to maintain the proceeding as has the lessor himself. But apart from any such express provision, it would seem clear that if the statute gives the right to the "landlord" or to the person "entitled to possession," one to whom the reversion has passed, either by voluntary act or by act of the law, may main- son Brew. Co., 13 Misc. 40, 34 N. Y. the "conventional" relation of land- Snpp. 94, it is held that a guardian lord and tenant arose, enabling the who made the lease may maintain infant to maintain the proceeding, the proceeding. In People v. Inger- 9* King v. Cutts, 24 Wis. 627. soil, 20 Hun (N. Y.) 316, 58 How. ^^ Georgia Code 1895, § 4813 (See Pr. 351, it is held that, though the Johnson v. Thrower, 117 Ga. 1007, 44 lease was made by the guardian, the S. E. 846) ; Indiana, Bums' Ann. St. ward may maintain the proceeding 1901, § 7106; Michigan Comp. Laws after attaining his majority. See, 1897, § 11165; Mississippi Code 1906, also, Moody v. Seaman, 46 Mich. 74. § 2886; New Jersey, 2 Gen. St. p. 8 N. W. 711, ante, note 86. 1918, § 18; New York Code Civ. Proc. 03 Palmer v. Cheeseboro, 55 Conn. § 2235; North Carolina Revisal 1905, 114, 10 Atl. 508, 3 Am. St. Rep. 40. § 2002; South Carolina Civ. Code In Dorschel v. Burkly, 18 Misc. 240, 3 902, § 243; Texas Rev. St. 1895, art. 41 N. Y. Supp. 389, it was held that 2523; Wisconsin Rev. St. 1898, § where the guardian of an infant re- 3362. mainderman, after the life tenant's se Case v. Porterfield, 54 App. Div. death, permitted a tenant of the lat- 109, 66 N. Y. Supp. 337; Powers v. ter to remain in possession, paying De 0, 64 App. Div. 373, 72 N. Y. rent, until the infant's majority, Supp. 103. and the latter then demanded rent. § 273 BY AND AGAINST WHOM MAINTAINABLE. 1733 tain the proceeding, since he is the "landlord" as well as the person ' ' entitled to possession. " That such transferee may main- tain the proceeding has been generally recognized,^^ but there are in some jurisdictions decisions that he cannot do so in the absence of a statute expressly so providing, this view being based mainly on the theory that otherwise an inquiry into title would be involved,98 in violation of the express provision of the stat- ute.99 In one decision, in which this view is asserted, it is stated that the proceeding is properly brought in the name of the lessor for the use of his transferee.^00 So far as, in any jurisdiction, an attornment might be neces- sary in order to make a transferee of the reversion the landlord of the tenant, he would not, in the absence of attornment, be able 07 Bradley v. Hume, 18 Ark. 284; assign); Barton v. Learned 26 Vt Brockway v. Thomas, 36 Ark. 518; 192, 62 Am. Dec. 364; McKeon v Johnscn V. West, 41 Ark. 535; Mor- King, 9 Pa. 213 (execution pur* row V. Sawyer, 82 Ga. 226, 8 S. E. chaser); Capital Brew. Co. v Cros- 51; Prichard v. Tabor, 104 Ga. 64, bie, 22 Wash. 269, 60 Pac. 652- Bar- 30 S. E. 415; Willis v. Harrell, 118 ton v. Learned, 26 Vt 192 62 Am Ga. 306, 45 S. E. 794; Dudley v. Lee, Dec. 364; Foss v. Stanton, 76 Vt. 39 111. 339; Herndon v. Bascom, 39 365, 57 Atl. 942 Ky. (8 Dana) 113; Thomason v. That the hei^r of tHe lessor may McLaughlin (Ind. T.) 103 S. W. 595; maintain the proceeding see Kellum Sacket V. Wheaton, 34 Mass. (17 v. Balkum, 93 Ala. 317, 9 So 463- Pick.) 103 (grantee of lessor's dev- Compton v. Ivey, 59 Ind. 352- Turly Isee); Marsters v. Cling. 163 Mass. v. Foster, 9 Ky.' (2 A. K Marsh) 477. 40 N. E. 763 (execution pur- 204; Roberts v. McPherson, 62 N J chaser) ; Smith v. Kaiser, 17 Neb. Law. 165. 40 Atl. 630 184. 22 N. W. 368; McGuffie v. Carter, In May v. Kendall 8 Phila (Pa ) 42 Mich. 497. 4 N. W. 211; Alworth 244, it was held that' where the stat V. Gordon, 81 Minn. 445, 84 N. W. ute authorized a proceeding by the 454; Watson v. Idler, 54 N. J. Law. lessor "or his heirs or assigns" a 467,24 Atl. 554; Binder T.Azzaro, 74 residuary devisee could not m'ain- N. J. Law, 328, 65 Atl. 849; Rabe tain it. A different view might well V. Fyler, 18 Miss. (10 Smedes & M.) have been adopted, it would seem 440, 48 Am. Dec. 763; Birdsall v. «8 Dwine v. Brown 35 Ala 596- Phillips, 17 Wend. (N. Y.) 464; Lang Reay v. Cotter, 29 Cal 168- Picot v' v. Everling, 3 Misc. 530. 23 N. Y. Masterson, 12 Mo. 303; Youngs v' Snpp. 329 (purchaser at foreclos- Freeman, 15 N. J. Law (3 J S ure); Griffin v. Barton, 22 Misc. Green) 30. 228, 49 N. Y. Supp. 10-21; Wetterer 99 See post, note 393 v. Soubirous, 22 Ml?c. 739, 49 N. Y. 100 Cooper v. Gambill,'l46 Ala 184 Supp. 1043; Duff v. Fitzw?.ter, 54 40 So. 827. Pa. 224, 93 Am. Dec. 691 (assign of * 1734 SUMMARY PROCEEDINGS. § 27 J to proceed as landlord, unless the statute contains a provision ex- pressly conferring the right upon the transferee.^ "^^ But, as be- fore stated, the requirement as to attornment is abrotrated in most, if not all, jurisdictions,' "^ and that no attornment is neces- sary, in order to enable the transferee to maintain the proceed- ing, has been expressly decided.^^^ One to whom the equitable title only to the reversion has been transferred, as for instance, one holding a bond for title from the lessor, or a contract for a conveyance, cannot bring the pro- ceeding,'''-* unless at least there is an express stipulation giving him the right of possession. But it has been decided that where one having merely an equitable title made a lease, and subse- quently transferred all his rights and title in the land, the trans- feree could maintain the proceeding.^^^ It has been decided that, under a statute giving the remedy to the assigns of the lessor, the grantee of the reversion in part of the leased premises may bring the proceeding to recover posses- sion of such part,^^^ but in another jurisdiction there is perhaps a decision to the contrary. ^o? n }^as also been decided that the grantee of an undivided interest in the land may maintain the proceeding, the possession so recovered by him to be regarded as in behalf of himself and the other joint owners.^*^? But an 101 That no attornment Is neces- Sinclair, 52 Mo. 327. In McMurtry sary if a proceeding by the trans- v. Adams, 66 Ky. (3 Bush) 70, the feree is expressly authorized by the right of one who obtained the title statute, see Thomasson v. Wilson, of the lessor by decretal sale to 146 111. 384, 34 N. E. 432; Ray v. maintain the proceeding was in Blackman, 120 Mo. App. 497, 97 S. terms based on the fact that the W. 212. tenant had attorned to him. 112 See ante, § 146 f. io4 Sullivan v. Enders, 33 Ky. (3 103 Marsters v. Cling, 163 Mass. Dana) 66; Harrison v. Middleton, 11 477, 40 N. E. 763; Wetterer v. Soubir- Grat. (Va.) 527. ous, 22 Misc. 739, 49 N. Y. Supp. los Goodlet v. Cleaveland, 51 Ky. 1043; Tilford v. Fleming, 64 Pa. 300. (12 B. Mon.) 430. But in Duke v. Compton, 49 Mo. loe De Coursey v. Guarantee Trust App. 304, it is stated that the pro- Co., 81 Pa. 217. ceeding does not lie in favor of a 107 Abeel v. Hubbell, 52 Mich. 37, transferee, unless expressly author- 17 N. W. 231, 50 Am. Rep. 240. ized by statute, in the absence of los Rabe v. Fyler, 18 Miss. (10 attornment, and there is a sug- Smedes & M.) 440, 48 Am. Dec. 763; gestion to the elfect that attorn- Mason v. Bascom, 42 Ky. (3 B. Mon.) ment is necessary in Gunn v. 269. § 273 BY AND AGAINST WHOM MAINTAINABLE. 1735 apparently contrary decision is found in another jurisdiction.^*''' Since, after the transfer by the lessor of the reversion, he ceases to be landlord and so ceases to have any right to the possession upon the termination of the tenancy, it would seem to follow that he has no longer any right to maintain the proceeding, and it has been so decided.^!*' So long, however, as he retains the legal title, though he has parted with the equitable interest, he is the person to maintain such proceeding.^ Occasionally it has been decided that the lessor may maintain it even after transferring the reversion.^ 12 One to whom the lessor has transferred merely the rent alone,i^' as when he in terms transfers the "lease, "^^^ has no right to maintain the proceeding, he not having thereby acquired any in- terest in the reversion or any right to possession. n. Effect of subsequent lease. In case the owner of the re- 109 King V. Dickerman, 77 Ky. (11 lowed in Tucker v. McClenney, 103 Gray) 480. Mo. App. 318, 77 S. W. 151, wliere 110 Purdy V. Rakestraw, 13 111. it was stipulated by the deed of con- App. (13 Bradw.) 480; McGuffie v. veyance that the right of possession Carter, 42 Mich. 497, 4 N. "W. 211; should remain in the lessor until Pentz V. Kuester, 41 Mo. 447; Boyd he recovered the actual possession. V. Sametz, 17 Misc. 728, 40 N. Y. A different view is taken in Boyd v. Supp. 1070. In Holliday v. Chism, Sametz, 17 Misc. 728, 40 N. Y. Supp. 25 Ind. App. 1, 57 N. E. 563, the 1070; and Holliday v. Chism, 25 Ind. denial of the right of the grantor to App. 1, 57 N. E. 563, as to the effect maintain the proceeding is based on of a covenant to put the grantee in the statutory provisions that every possession. In Cooper v. Gambill, action must be prosecuted in the 146 Ala. 184, 40 So. 827, it is said name of the real party in interest, that the proceeding could not be and that any person entitled to re- maintained by "the purchaser," who cover possession of land may do so was apparently also the legal gran- In his own name. In this case the tee, but that It was proper for the grantor had agreed that he would lessor to institute the suit for the obtain the possession for the gran- use of the purchaser, the real party tee. in interest. 111 Miller v. Levi, 44 N. Y. 492; us Kelly v. Smith, 41 N. Y. St. Harrison v. Middleton, 11 Grat. Rep. 020, 16 N. Y. Supp. 521. (Va.) 527. ii4Markin v. Vv'hitaker, 26 Ind. 112 See White v. Bailey, 14 Conn. App. 211, 58 N. B. 542. But see 271, to this effect, and it is so de- Drew v. Mosbarger, 104 111. App. cided in Logan v. Woolwine, 56 Mo. 635, where the assignment of the App. 453, on the ground that the "lease" appears to be regarded as lessor had agreed to put his grantee making the assignee the landlord for In possession. The latter case is fol- this purpose. Compare ante, § 146 b. 1736 SUMMARY PROCEEDINGS. § 273 version makes a lease to commence in possession upon the ter- mination of the former lease, such second lessee, it has been usu- ally considered, may, as being entitled to possession, maintain the proceeding against the first lessee, in case the latter holds over his term.''^ Such second lessee, it has occasionally been said, is an "assignee" within the meaning of a statute giving the benefit of the proceeding to the "assignee" of the lessor.^ ^^ In some cases, however, the right of the second lessee to maintain the proceeding has been denied.^ ^'^ The lessor has sometimes been regarded as retaining, in such case, the right to maintain the proceeding, the first lessee being thus apparently subject to a proceeding by either the lessor or the second lessee,"* and occasionally this right in the lessor has 115 Field V. Herrick, 101 111. HO; James Hanley Brew. Co., 23 R. I. 343, Webb V. Hyman, 40 111. App. 335; 50 Atl. 392 (ejectment); Twiss v. Ball V. Chadwick, 46 111. 28; Gazzolo Boehmer, 39 Or. 359, 65 Pac. 18 (sem- V. Chambers, 73 111. 75; Beidler v. ble). See King v. Reynolds, 67 Ala. Fish, 14 111. App. (14 Bradw.) 29; 229, 42 Am. Rep. 107. Boyce v. Graham, 91 Ind. 420; nsGoelet v. Roe, 14 Misc. 28, 35 Burton v. Rohi'beck, 30 Minn. 393, 15 N. Y. Supp. 145; Davidson v. Ham- N. W. 678; Russo v. Yuzolino, 19 merstein, 28 Misc. 529, 59 N. Y. Supp. Misc. 28, 42 N. Y. Supp. 482; Harris 563; Imbert v. Hallock, 23 How. Pr. V. Halverson, 23 Wash. 779, 63 Pac. (N. Y.) 456; Vatuone v. Canno- 549. See Rieger v. Welles. 110 Mo. bio, 4 Cal. App. 422. 88 Pac. 374: App. 166, 84 S. W. 1136. In Capital Gelston v. Sigmund, 27 Md. 345; Brew. Co. v. Crosbie, 22 Wash. 269, Hammond v. Jones, 41 Ind. App. 60 Pac. 652, this view is based on 32, 83 N. E. 257. In Yosemite the statutory provision that every Valley Com'rs v. Barnard, 98 Cal. action shall be prosecuted In the 199, 32 Pac. CS2, it is decided that it name of the real party in interest. is no defense to a proceeding by the 116 Kelly V. Clancy, 15 Mo. App. lessor that he has made a subse- 519; Gardner v. Keteltas, 3 Hill (N. quent lease, for the reason that this Y.) 330, 38 Am. Dec. 637; Ball v. would involve the assertion of an Chadwick, 46 111. 28; V/hite v. Arth- outstanding title as a defense. There urs, 24 Pa. 96. is, however, in such case, no out- 117 Hardy v. Ketchum, 14 C. C. A. standing title paramount to that 398, 67 Fed. 282; Imbart v. Hallock, created by the original lease. 23 How. Pr. (N. Y.) 456; Rothman In Mngeon v. Alkire, 41 Colo. 338, V. Kosower, 48 Misc. 538, 96 N. Y. 92 Pac. 720, it is said, quotinjj Thom- Supp. 268; Spalding v. Hall, 6 D. C. asson v. Wilson, 146 III. 384, 34 N. E. 123 (though statute gave right of 432, that in such case the landlord action to person "entitled to the may sue for unlawful detainer and premises") ; Hammond v. Jones, 41 the second lessee for forcible entry. Ind. App. 32, 83 N. E. 257; Maher v. In the Illinois case the facts were en- § 273 BY AND AGAINST WHOM MAINTAINABLE. 1737 been based upon the fact that he is under an obligation to put the second lessee in possession.^^^ In other cases the right of the second lessee to maintain the proceeding has been regarded as excluding a proceeding by the lessor.^^o On the same principle as that on which a subsequent lessee has been allowed to maintain the proceeding, it has been upheld in favor of a lessee for years against a prior tenant at will, whose tenancy has been terminated, either by the making of the lease for years, or otherwise.^ ^^ One to whom property is leased subject to an existing lease, that is, one to whom a "concurrent lease "^22 jg made, being a transferee of the reversion, would ordinarily have the right to institute the proceeding.i^za 0. Against persons claiming under lessee — Assignees and sub- tenants. The language of the statutes is, almost invariably, it would seem, sufficient to support a proceeding against one who is in possession as an assignee of the lease, they sometimes in terms authorizing proceedings against a tenant,i23 which such assignee tirely different, there being but one lessee cannot maintain tlie proceed- lease, and a forcible entry by a ing without first notifying the ten- stranger on the tenant thereunder. ant at will of such lease. Furlong 110 Vincent v. Defield, 98 Mich. 84, v. Leary, 62 Mass. (8 Gush.) 409. 56 N. W. 1104, distinguished in But aliter when the landlord has Lewis V. Brandle, 107 Mich. 7, 64 previously terminated the tenancy N. W. 734; Logan v. Wool wine, 5G at will, under the statute, for non- Mo. App. 453; Schreiner v. Stanton, payment of rent. Hildreth v. Gon- 26 Wash. 563, 67 Pac. 219. ant, 51 Mass. (10 Mete.) 298. One 120 Allen v. Webster, 56 111. 393; to whom two out of three tenants in Beidler v. Fish, 14 111. App. (14 common have made such a lease for Bradw.) 29. In L'Hussier v. Zallee. 5'ears has been regarded as entitled 24 Mo. 13, it is decided that the les- to maintain the proceeding against sor cannot recover possession unless the prior tenant at will. Grundy v. the first lessee has elected to hold Martin, 143 Mass. 279, 9 N. E. 647. the lessor in damages for nondeliv- 122 See ante, § 146 d. ery of possession. 122a Hendrickson v. Beeson, 21 121 Hayden v. Ahearn, 75 Mass. (9 Neb. 61, 31 N. W. 266; McDonald v. Gray) 438; Alexander v. Carew, 95 Hanlon, 79 Cal. 442, 21 Pac. 861. Mass. (13 Allen) 70; Gasey v. King, The decision in Schlaich v. Blum, 42 98 Mass. 503; Barton v. Learned, 26 Misc. 225, 85 N. Y. Supp. 335, ap- Vt. 192, 62 Am. Dec. 364. pears to be to the effect that in such It has been decided that if the ^ c^^se the original lessor cannot tenancy at will is terminated by the maintain the proceeding, making of the subsequent lease, the i^z Arizona Rev. St. 1901, § 2693; 1738 SUMMARY PROCEEDINGS. § 273 clearly is, and sometimes authorizing proceedings against per- sons holding "under" the lease,^-* and sometimes against the person in possession.^ 25 Occasionally "assigns" are specifically mentioned.i2c Even though a particular statute authorizes pro- ceedings against a "lessee" only/ 27 ^bis will presumably be con- strued as authorizing proceedings against an assignee of the les- see, immediate or remote. The assignee of a tenant at will, who has taken possession by reason of the assignment, has been rt'garded as a person holding under the lessee within the statute, though the assignment is nugatory as against the landlord.^ 28 The widow of a tenant in possession has been regarded as prima facie his assignee and so subject to expulsion by a pro- ceeding of this character.' 29 And the widow and heirs of the California Code Civ. Proc. § 1161; III. App. 134; Hasbrouck v. Stokes, Colorado, Mill's Ann. St. § 1973; Dis- 13 N. Y. Supp. 333. trict of Cohimhia Code 1901, §§ 20, ^"^^ Maryland Code Pub. Gen. Laws 1225; Florida Gen. St. 1906, § 2227; 1904, art. 53, § 1 (Tenant or person Georgia Code 1S95, § 4813; Indiana, actually in possession); Missouri Burns' Ann. St. 1901, § 7106; Kansas Rev. St. 1899, § 3321 (Any person Gen. St. 1905, § 5S41; Kentucky Civ. continuing in possession); Hew Code Prac. § 452; Maine Rev. St. Hampshire Pub. St. 1901, c. 246, § 7 1903, c. 96, § 1 (Tenant holding un- (Lessee or occupant); Texas Rev. der written lease) ; Montana Rev. St. 1895, art. 2519 (Any person hold- Codes, § 7271; Nebraska Comp. St. ing over term). 1905, § 7525; Nevada Comp. Laws 120 Flo-riria Gen. St. 1906, § 2227; 1900, § 3825; New Mexico Comp. Mississippi Code 1906, § 2885; Neto Laws 1897, § 3345; Ohio Rev. St. Jersey, 2 Gen. St. p. 1922, § 30; New 1906, § G600; Oklahoma Rev. St. York Code Civ. Proc. § 2231; North 1903, § 5087; Pennsylvania, Pepper Carolina Revisal 1905, § 2002; Ten- & Lewis' Dig. Laws, "Landlord & nessee, Shannon's Code 1896, § 5093. Tenant," §§ 25, 28; South Carolina 127 e. g., Iowa Code 1897, § 4208; Civ. Code 1902, § 2421. Pennsylvania, Pepper & Lewis' Dig. 124 Arkansas, Kirby's Dig. St. 1904, Laws, "Landlord & Tenant, § 34. So § 3630; Connecticut Gen. St. 1902, § North Dakota (Rev. Codes 1905, § 1082; Illinois, Kurd's Rev. St. 1905, 8406) and South Dakota (Justices' c. 57, § 2; Massachusetts Rev. Laws Code. § 44) authorize the proceeding 1902, c. 181, § 1; Michigan Comp. only against a lessee who in person Laws 1897, § 11164; Minnesota Rev. or by subtenant holds over. Laws 1905, § 4038. 128 Hart v. Bouton, 152 Mass. 440, That the proceeding will He 25 N. E. 714. against the lessee's assignee for 129 Michenfelder v. Gunther, 66 creditors, see Reynolds v. Fuller, 64 How. Pr. (N. Y.) 464. § 273 BY AND AGAINST WHOM MAINTAINABLE. 1739 tenant have been regarded as within the operation of such a statute.130 One holding under a sublease is, it seems clear, included in the description of "tenants," or of persons holding "under" the les- see, as well as of persons "in possession. "^^i j^^ occasionally the language of the statute specifies subtenants as persons who may be expelled by proceedings of this charaeter.i^s One who obtains possession by collusion with the tenant or sub- tenant, although he asserts a right of possession under a title adverse to that of the lessor, is subject to expulsion by such pro- ceedings, since he is, as regards the lessor, in no better position than a subtenant.^ ^3 13 ^t q^q -^j^q enters during the tenancy, without any privity with the tenant, cannot be ousted by the landlord as if he had entered under the tenant,^ ^^ even though he declares to the landlord that he did so enter.^^s There may, however, be a local statute under which proceedings may be in- stituted against him by the landlord after the end of the ten- ancy .^^^ A licensee of a tenant is liable to be proceeded against by the landlord, it appears, to the same extent as a subtenant. ^^7 i3oBrubaker v. Poage, 17 Ky. (1 Shannon's Code 1S96, § 5093. See B. Mon.) 123; Fogle v. Chaney, 51 Reed v. Hawley, 45 111. 40; Blachford Ky. (12 B. Mon.) 138. v. Frenzer, 44 Neb. 829, 62 N. W. 131 See Giddens v. Boiling, 92 Ala. 1101; Ward v. Burgher, 90 Hun, 540, 586, 9 So. 274; Winkler v. Massen- S5 N. Y. Supp. 961. gill, 66 Ark. 145, 49 S. W. 494; Haase isa Giddens v. Boiling, 92 Ala. 586, V. Schickner, 29 Ky. Law Rep. 87, 9 So. 274; Winkler v. Massengill, 66 92 S. W. 949; Fogle v. Chaney, 51 Ky. Ark. 145, 49 S. W. 494; Ballance v. (12 B. Mon.) 138; Elms v. Randall, Fortier, 8 111. (3 Gilm.) 291; Doty 32 Ky. (2 Dana) 100; Stewart v. v. Burdick, 83 111. 43; Stewart v. Miles, 166 Mo. 174, 65 S. W. 754; Bird Miles, 166 Mo. 174, 65 S. W. 754; V. Fannon, 40 Tenn. (3 Head) 12. Russell v. Van Fleet, 24 Ky. Law 132 California Code Civ. Proc. 5 Rep. 232, 68 S. W. 396. 1161 (When tenant continues in pos- 134 Colt v. Eves, 12 Conn. 243; session in person or by subtenant) ; Blackman v. Welsh, 44 Mo. 41. Florida Gen. St. 1906, § 2227; Idaho iss People v. Hovey, 4 Lans. (N. Code Civ. Proc. § 3974; Mississippi Y.) 86. Code 1906, § 2885; Montana Rev. i36 See Thomasson v. Wilson, 146 Codes, § 7271; New Jersey, 2 Gen. St. 111. 384, 34 N. E. 432. p. 1922, § 30; Neio York Code Civ. 137 See Stewart v. Miles, 166 Mo. Proc. § 2231; Islorth Dakota Rev. 174, 65 S. W. 754; and cases cited Codes 1905, § 840G; South Dakota, post, note 140. Justices' Code, § 44; Tennessee, 1740 SUMMARY PROCEEDINGS. § 273 There are several decisions to the efTect that, in order that the proceeding be effective as against a subtenant, so as to .ius- tify his expulsion thereunder, he must be a party to the pro- ceeding,^38 unless the sublease was made to him pendente lite.^^^ Such a rule does not apply to persons who are not, technically speaking, in possession of the premises, but arc there merely as members of the tenant's family, or as guests or servants, and they may be expelled under the process issued on the judgment in the proceeding, although not parties thereto.^'**^ Conceding 13S Leindecker v. Waldron, 52 111. dence that he had leased to one only 283; MoFes v. Loomls, 55 111. App. and that the latter had subleased to 342; Bagley v. Sternberg, 34 Minn, the others. 470, 26 N. W. 602; Hill v. Stocking, That the original lessee wrong- 6 Hill (N. Y.) 314, 41 Am. Dec. 748; fully holding over cannot defend on Sims v. Humphrey, 4 Denio (N. Y.) the ground that he has subleased 185; Stirliweather v. Seeley, 45 Barb, parts of the land and that the sub- (N. Y.) 1G4; Croft v. King, 1 City Ct. lessees are not parties, see Tucker v. R. (N. Y.) 157, 8 Daly, 265. On the McClenney, 103 Mo. App. 318, 77 S. other hand, in Stewart v. Jackson, W. 151. 181 Pa. 549, 37 Atl. 518, it is as- i3» Lelndecker v. Waldron, 52 111. serted that a subtenant can be eject- 283; Bagley v. Sternberg, 34 Minn, ed on a judgment against the ten- 470, 26 N. W. 602. ant under whom he claims. And That a receiver is appointed In a it is so decided in Synod of Toronto suit to fcrcniose a mortgage on the v. P^lsken, 29 Ont. 738. In Dan forth leasehold does not affect the validity v. Stratton, 77 Me. 200, it was held of a subsequent judgment in a sum- that one in possession as cestui que mary proceeding previously institut- trust, the tenant being trustee, could ed, though no notice is served on be removed under an order of resti- the receiver. Woodward v. Wina- tution against the tenant, and this hill, 14 Wash. 394, 44 Pac. 860. also, perhaps, involves a view con- "o Bagley v. Sternberg, 34 Minn, trary to that stated in the text, since 470, 26 N. W. 602; Ennis v. Lamb, a cestui que trust in possession is f re- 10 111. App. (10 Bradw.) 447; Croft quently to be regarded as a ten- v. King, 1 City Ct. R. (N. Y.) 157, ant of the trustee (ante, § 42). 8 Daly, 265. In Miller v. White. 80 It was held, under the New York 111. 580, it was held that one who was statute, that a person claiming pos- living on the premises with the les- session as subtenant could intervene see, apparently as a member of his and answer. Kiernan v. Cashin, 92 household, could not assert that she N. Y. Supp. 255. should have been a party to the pro- In Butterfield v. Kirtley, 114 Iowa, ceeding as being a sublessee, the 520, 87 N. W. 407, it was in effect landlord having no means of know- decided that, though the complainant ing of the sublease, which, if It ex- alleged a lease to all the defendants, isted at all, was absolutely secret. he could recover against all on evi- § 273 BY AND AGAINST WHOM MAINTAINABLE. l'74l that a subtenant is a necessary party, a principal tenant who is not the original lessee, that is, one to whom the leasehold has been assigned, is a fortiori not affected by the proceeding, if not a party thereto.^^* The question whether the original lessee is a necessary party when he is not in possession, or entitled to possession, he having made a sublease to another, has apparently not been decided,^*^ but that he is a proper codefendant along with his subtenant has been explicitly decided in one or two cases,^^^ and assumed in others,^'*^ and it is no doubt the usual practice to make him a party to the proceeding, although he has subleased. If the sum- mons is directed to the lessee as well as to the subtenant, it should, it has been said, be served on botli.^^^ One who has assigned the leasehold and relinquished possession to his assignee is, it seems, not a necessary, nor, indeed, a proper, party.^^^ Since the proceeding involves only the question whether the defendant's right of possession under the lease has come to an end, 141 An assignee not in possession statute. In Emerick v. Tavener, 9 has been regarded as not a neces- Grat. (Va.) 220, 58 Am. Dec. 217, a de- sary party (Malioney v. Hoffman, r^H cision to this effect is based on the Misc. 217, 109 N. Y. Supp. 13; Ruben- rule recognized at common law in stein V. Rosenthal, 50 Misc. 313, 98 ejectment proceedings (AdamF, N. Y. Supp. 681. See Park Laundry Ejectment, 130, 23^; Roe v. Wiggs, 2 Co. V. Sassone, 108 N. Y. Supp. 725), Bos. & P. [N. R.] 330; Pleasant v. and a mortgagee of the leasehold has Benson, 14 East, 234), which was been similarly regarded (Ruben- based on the ground that the land- stein V. Rosenthal, 50 Misc. 313, 98 lord should be able to subject the N. Y. Supp. 681). original tenant to the costs of the 1*2 In Rehm v. Halverson, 197 111. proceeding for possession in case he 378, 64 N. E. 388, it was held that sublets to a pauper, the lessee having made a surrender i** Leindecker v. Waldron, 52 Til. of his interest, he was not a neces- 283; Judd v. Arnold, 31 Minn. 430, sary party to a proceeding to expel 18 N. W. 151; Middlebury College his lessee, the subtenant, although v. Lawton, 23 Vt. 688; Iburg v. Fitch, the statute expressly authorizes the 57 Cal. 189; Pardee v. Gray, 66 Cal. joinder of such parties as defend- 524, 6 Pac. 389. See post, at notes ants. 163, 164. 143 It is so asserted without discus- 145 Matter of Glenn, 1 How. Pr. Bion in Fletcher v. Fletcher, 123 Ga. (N. Y.) 213. 470, 51 S. E. 418. In Espen v. Hinch- i46 See Ben Lomond Wine Co. v, liffe, 131 111. 468, 23 N. E. 592, it is Sladky, 141 Cal, 619, 75 Pac. 332. Bo decided, on a construction of the 1742 SUMMARY PROCEEDINGS. § 27'1 persons under whom the alleged tenant may claim possession, as having a paramount title, are not proper parties defendant.^*^ p. Against corporation. A statute authorizing a proceeding against "any person" has been held to authorize it against a municipal corporation.' ^^ And it has been held that the fact that the statute provides fcr personal service on the tcnint, or for substituted service in case of absence from his "residence," does not preclude a proceeding against a corporation, public or pri- vate.149 § 274. Grounds for proceeding. a. Holding over by tenant — (1) After expiration of tenancy. Under the statutes of most jurisdictions a summary proceeding lies in case one who entered under a lease wrongfully remains in possession after the expiration of the term or tenancy. If he re- mains by permission of the person under whom he previously held, under an extension or renewal of the lease, his possession is obviously rightful, and the proceeding will not lie.^^"^ He may also show in defense that he holds under a third person to whom a lease was made to commence at the expiration of his own The acceptance by the landlord of rent accruing subsequently to the expiration of the original term would ordinarily show, as against him, an extension of the tenancy as a periodic holding,!^:^ and preclude the maintenance of the proceeding, but no such in- 1*7 Grizzard V. Roberts, 110 Ga. 41, ibo Uridas v. Morrell, 25 Ca. 31; 35 S. E. 291. Sloat v. Ror.ndtree, 87 Ga. 470, 13 148 Rains v. City of Oshkosh, 14 s. E. 637; Hamline v. Engle, 14 Ind. Wis. 372. App. 685, 42 N. E. 760, 43 N. E. 463; 149 Facts Pub. Co. V. Felton, 52 N. jy^d v. Arnold, 31 Minn. 430, 18 N J. Law, 161, 19 Atl. 123; Brown v. w -,ri -pT^ot +>,,•=, rv,o v v ' w. 151. That this may be shown City of New York, 66 N. Y. 385. ,,„,^ , ^ • , .. ,. ■^ . ^ . under a general denial, see Hamline That the proceeding may be main- „ ^ , ,. . ^ . , . , . , .V,- ^- Engle, 14 Ind. App. 685, 42 N E. tamed against a quasi public cor- ..„ %. poration engaged in supplying elec '''' '' ^- ^- ''^- ^ut Ferine v. tricity, see Bodwell Water Power Co. ^'^^^' ^6 Cal. 446, 6 Pac. 84, Is V. Old Town Elec. Co., 96 Me. 117, 51 <^o°tra. Atl. 802. And that it may be main- ^" Dickson v. Lehnen, 37 Fed. tained against a city is assumed in 319. City of Bay St. Louis v. Hancock 102 See ante, § 210 a. County, 80 Miss. 364, 32 So. 54. § 274 HOLDING OVER BY TENANT. 1743 ference is to be drawn, it has been decided, from the acceptance of rent for the time during which the tenant may retain possession by reason of his having given a bond for appeal from a judgment of dispossession,! 53 or by reason of an injunction against the en- forcement of such judgment.!^* The proceeding cannot be maintained, as against a tenant hold- ing over, if the tenant relinquishes possession after the tenancy has come to an end, and thereafter wrongfully resumes posses- sion.is^ The burden is on the plaintiff to show the character of the tenancy as originally created, and that it has come to an end.^^® After he does this, it is for the defendant to show that, by reason of a renewal or otherwise, he has a right to continue in possession after the expiration of the original tenancy. ^^"^ It has been decided in one state that a mere covenant to renew, even though a renewal has been requested by the tenant and re- fused, does not give the tenant any right or interest in the prem- ises beyond the term, which will constitute a defense to a pro- ceeding to recover possession.^^** But a different view has been taken in states where equitable defenses are allowed,!^^ as it w^ould be, presumably, in states where the courts show a tendency to regard such a covenant as in itself effecting a renewal or exten- sion of the lease.160 jj^ Illinois it has been held that the lessor's refusal to sign a renewal lease, in accordance with his covenant to renew, constitutes a defense to a proceeding brought under a statute allowing the proceeding against a lessee who holds posses- sion "without right" after termination of the tenancy.^^^ That the lease provides that the landlord shall, at the expira- 153 Hopkins v. Holland, 84 Md. 84, is? Brown v. Keller, 32 111. 151, 83 35 Atl. 11. Am. Dec. 258; Jefferson v. Ummel- 154 Curd V. Farrar, 47 Iowa, 504, mann, 56 Mo. App. 440; Weinhand- 29 Am. Rep. 492. ler v. Eastern Brew. Co., 46 Misc. 155 Harrington v. Watson, 11 Or. 584, 92 N. Y. Supp. 792; Lutz v. 143, 3 Pac. 173, 50 Am. Rep. 465. See Wainwright, 193 Pa. 541, 44 Atl. 565. Walls V. Preston, 28 Gal. 224. iss piatt v. Cutler, 75 Conn. 183, 156 Miller v. Lowe, 14 Ann. Cas. 52 Atl. 819. 343, 86 N. Y. Supp. 16; Gossett v. i59 See post, note 385. Fox, 90 N. Y. Supp. 477; Weinhauer iso See ante, § 218, at note 4. V. Eastern Brew. Co., 85 N. Y. Supp. lei Holt v. Nixon, 73 C. C. A. 268, 354; Seidel v. Sperry, 26 Pa. Super. 141 Fed. 952. Ct. 649. 1744 SUMMARY PROCEEDINGS. § 274 tion of the term, either buy or allow the removal of the tenant's property, has been held not to extend the time of the expiration of the term for this purpose.^ ^2 It has been decided to be no defense to a proceeding to recover possession after the expiration of the term that the lessee, without the lessor's consent, sublet parts of the premises to third persons, who were not made parties to the proceeding.^'^ But it has been held that a tenant is not liable to a judgment against him in such a proceeding if, after the expiration of the terra, he puts a stran- ger in possession, there being no concerted action between them to wrongfully withhold the property from the Inndlord.^^"* In one state the statute provides for a proceeding against a tenant holding over only if there was a "certain" rent re- f^erved,^"^ and there have been several decisions as to what con- stitutes certainty for this purpose.^'^^ The expiration of the tenancy by reason of a special limitation will justify the institution of a proceeding of tliis character to recover possession,^'^^ but, by the weight of authority, the breach of a condition subsequent does not terminate the tenancy, so as to bring the ease within the operation of the statute.^ ^^ (2) After surrender. There are a number of cases in which it appears to have been assumed that a statute, authorizing the proceeding against a tenant after the expiration of his term, au- thorizes it in case of the destruction of his term by a surrender made by him to the landlord.^^^'^^^ ic2Bodwell Water Power Co. v. ises. Shaffer v. Sutton, 5 Bin. (Pa.) Old Town Elec. Co., 96 Me. 117, 51 228. In another casp it was held Atl. 802. that an agreement to render services 103 Tucker v. McClenney, 103 Mo. as "foresinger and organist" did not App. 318, 77 S. W. 151. constitute an agreement for a "eer- ie* St. Louis Brew. Ass'n v. Nieder- tain" rent. Hohly v. German Re- lueeke, 102 Mo. App. 303, 76 S. W. formed Soc, 2 Pa. 293. A demise 645. "at the yearly rent of the interest 165 Pennsylvania Act March 21, and taxes accruing thereon" did not 1772. See Blashford v. Duncan, 2 reserve a certain rent, it not being Serg. & R. (Pa.) 480; McGee v. Fes- stated what the interest was to ba sler, 1 Pa. 126; Graver v. Fehr, 89 calculated on. Davis v. Davis, 115 Pa. 460. Pa. 261. 7 Atl. 746. 166 It was held that rent was cer- lev See post, at note 217. tain within the act though it was les See post, at note 216. payable in "taxes and daubing and 16^1T0 Kower v. Gluck, 33 Cal. 401; chinking" the house on the prem- Elliott v. Round Mountain Coal & § 274 HOLDING OVER BY TENANT. 1745 (3) Notice to quit as prerequisite — (a) Distinguished from notice terminating tenancy. The statute frequently requires a notice to quit or a demand for possession as a prerequisite to a proceeding to recover possession against a tenant holding over. Such a notice to quit, constituting a prerequisite to a proceeding of this character, is to be distinguished from that which is neces- sary, at common law, to terminate a periodic tenancy,^ '^^ or, under the statutes of a number of states, to terminate a tenancy at will.^'^2 In gome states, however, the statutes fail to make this distinction, providing as a prerequisite to a summary pro- ceeding against a periodic tenant or a tenant at will, as distinct from a tenant for a term, that a notice to quit of a certain length of time shall be given.^'^^ That is, in naming the prerequisites to a summary proceeding against one who holds oxer after the ter- mination of his tenancy, they include a statement of the noticraska Comp. St. 1905, § 7529 (Notice ant is not, as a matter of fact, put to quit to be given three days be- in the wrong by the demand or no- fore proceeding commenced); North tice in either cnse. He puts himself Dakota Rev. Codes 1905, § 8407 in the wrong. The demand is fof (Three days' notice to quit); Ohio delivery of the possession only Rev. St. 1906, § 6602 (Notice to leave 1748 SUMMARY PROCEEDINGS. § 274 as a prerequisite to the proceeding, have been regarded as satis- fied by a notice given before the expiration of the term,i»3 ^his view being in one case based on the theory that the legislature cannot be presumed to have intended to make any change in the common-law notice to quit;^^^ while in another case it is said that the object of the statute is to provide merely for notification to the tenant of the expiration of the lease and the landlord's de- mand for possession, so that he may have the time named for the running of the notice in which to make preparations to va- cate. ^^^ In at least two states the statute expressly requires the landlord, in order to be able to maintain the proceeding against one hold- ing over after the term, to have given a notice to quit a pre- scribed period before the end of the term."^*' And under such a provision the notice must, it has been held, require the tenant to leave at the end of the term.^s^ The fact that the notice given is longer than th?t named in the statute is immaterial,i88 but a notice given before the end of the term and requiring the tenant to leave fortlnvith has been held insufficient, it not apprising the tenant of the grounds of the landlord's claim to possession.^8» The fact that the notice in terms required the tenant to quit within a period less than that when the person making it becomes again and repossess such demised entitled to the possession. premises, having given three 183 Townly v. Rutan, 20 N. J. Law. months' notice of such intention to 604; Drain v. Jacks, 77 Iowa, 629, 42 his lessee," etc.). See Rich v. Key- N. W. 460; Hawley v. Robeson, 14 ser, 54 Pa. 86, 93 Am. Dec. 675. Neb. 435, 16 N. W. 438; Leutzey v. is? Borough of Phoenixville v. Herchelrode, 20 Ohio St. 334. Walters, 29 Wkly. Notes Cas. (Pa.) 184 Hazeltine v. Colburn, 31 N. H. 483. If the notice in terms so re- 466. quires, the fact that a mistake Is 185 McLain v. Calkins, 77 Iowa, made in naming the date of the end 468, 42 N. W. 373. of the term has been regarded as 186 Maryland Code Pub. Gen. Laws immaterial. Wenger v. Raymond, 1904, art. 53, § 1 (Where the lessor 104 Pa. 33; Jalass v. Young, 3 Pa. or his assigns "shall give notice in Super. Ct. 422, 40 Wkly. Notes Cas. writing one month before the ex- 41. piration of said term"); PennsyJ- iss Shuver v. Klinkenberg, 67 rania. Pepper & Lewis' Dig. Laws, Iowa, 544, 25 N. W. 770; Olds v. "Landlord & Tenant," § 28 (If the Conger, 1 Okl. 232, 32 Pac. 337. lessor "shall be desirous, upon the iso Connell v. Chambers, 22 Neb. determination of said lease, to have 302, 34 N. W. 636. § 274 HOLDING OVER BY TENANT. 1749 named in the statute for the notice has been regarded as imma- terial, when the statutory period was allowed to elapse before the bringing of suit for possession.^^^ The question whether the period named in the statute has elapsed between the giving of the notice and the commencement of the proceeding, or the end of the term, as the case may be, is one of the computation of time, to be determined, it seems, by the same rules as apply in the case of a notice to quit intended to terminate a periodic tenancy.^ ^^-^^^ (d) Form of notice. Unless the statute expressly provides for a written notice or demand, a verbal notice is sufficient.^ ^^ A requirement of a written demand is not satisfied by reading a written demand to the tenant, the intention of the statute being that he shall have a writing to which he can refer.^^"* In the absence of any statutory provision as to the form of the notice, no particular form would ordinarily be required. ^^'^ The notice sufficiently describes the premises if it informs the recipient of what premises possession is demanded. ^^^ (e) Person to give notice. The notice must be given by the landlord or by one having authority to act for him in that re- gard,^^'^ and if required to be in writing should be signed by the person giving it.^^^ If the notice is given by a person acting without authority, it cannot afterwards be ratified by the landlord so as to be effective against the tenant,i^^ the rule in this respect 180 Chamberlin v. Brown, 2 sufBcient, though the first floor of Doug. (Mich.) 120. the building on the lots was occu- 101, 192 See ante, § 201. pied by others. i93Thamm v. Hamberg, 2 Brewst. 197 See Nixon v. Noble, 70 111. 32; (Pa.) 528. Brahn v. Jersey City Forge Co., 38 19* Seem v. McLees, 24 111. 192. N. J. Law, 74 (Notice by corporate See Jenkins v. Jenkins, 63 Ind. 415, officer). 30 Am. Rep. 229. 108 Ball v. Peck, 43 111. 482. Com- ifs See Earl Orchard Co. v. Fava, pare ante, § 199*- at note 130. A no- 138 Cal. 76, 70 Pac. 1073. tice signed "for C. M. H. by W. C. P., 190 Whipple V. Shewalter, 91 Ind. an authorized agent," was held suffi- 114; Cummings v. "Winters, 19 Neb. cient, though it would be better, it 719, 28 N. W. 302. In Dimmett v. was said, to say " ' authorized Appleton, 20 Neb. 208, 29 N. W. 474, agent." Reed v. Ha .45 111. 40. It was held that a notice describ- ifl<5 Ball v. Peck, 43 III. 482; Brahn ing the property demanded by giv- v. Jersey City Forge Co., 38 N. J. ing the numbers of the lots was Law, 74. 1750 SUMMARY PROCEEDINGS. § 274 being the same as that which applies to a notice intended to end the tenancy.2*^^ It has been said that, when the property was sold by a contract giving the vendees the right of possession, a notice to quit was properly signed and caused to be served by one only of the two vendees. 2°^ It has been decided in one state that the landlord may, even though he has conveyed the reversion, give notice to quit on be- half of his grantee.2'^2 Jq ^j^at jurisdiction, no doubt, a notice given by the person who is landlord at the time of the giving ot the notice would support a proceeding by one to whom he sub- sequently transfers the reversion. Whether that would be the case in other jurisdictions does not appear. (f) Service of notice. The statutes of a number of states con- tain specific provisions, more or less elaborate, as to the mode of sendng the notice which is prerequisite to a proceeding for pos- session.203 The notice or demand may be served, it has been held, by leav- ing it with the tenant's wife at his residence, 2'^"* or by posting it on the door of the demised premises, w^hen these have been aban- doned by the tenant.^^s A notice served upon one of two colessees upon the premises has been held to be sufficient as to both.^os The notice need not be filed with the justice unless the statute so requires. '°' Service of such a notice is no doubt to be proven as would other notices in that jurisdiction. Unless the statute provides for proof aooSee ante, § 198, at note 95. Utah Comp. Laws 1907, § 3578; 201 Willis V. Weeks, 129 Iowa, 525, Washinaton, Ball. Ann. Codes & St. 105 N. W. 1012. The vendor, in § 5.529; Wisconsin Rev. St. 1898, § whom was apparently the legal fee 3358; Wyoming Rev. St. 1899, § 4487. simple title, also signed the notice. 204 Earl Orchard Co. v. Fava, 138 202 Glenn v. Thompson, 75 Pa. 389. Cal. 76, 70 Pac. 1073; Beiler v. Dev- And see cases cited ante, notes 100, oil, 40 Mo. App. 251; Hazeltine v. 112. Colburn, 31 N. H. 466. And see 203 California Code Civ. Proc. § ante, § 203. Compare Doran v. Gil- 1162; Ido'hn Code Civ. Proc. § 3977; lespie, 54 111. 366. Kansas r!?n. St. 1905, § 5397; Mon- 203 Consolidated Coal Co. v. Schaef- tana Rev. Codes Civ. Proc. 1907, § er, 135 111. 210, 25 N. E. 788. 7272; Ke'^)'^aska Comp. St. 1905, 206 Grundy v. Martin, 143 Mass. § 7527; Vew York Code Civ. Proc. §§ 279, 9 N. E. 647. 2231, 2240; Ohio Rev. St. 1906, § 6602: 207 McLain v. Nurnberg, 16 N. D. Oklahoma Rev. St. 1903. § 5089; 144, 112 N. W. 243. . 274 BREACH OF CONDITION. 1751 by a return, it would ordinarily be proven by the testimony of the person making the service.^o^ In one jurisdiction it is held that secondary evidence of the contents of a written notice is not admissible unless notice to produce has been given.209 (g) Waiver of notice. It has occasionally been decided that the tenant may waive the giving of the statutory notice, either by a provision to that effect in the lease or other^vise,2lo but m one state a contrary view has been asserted-^" The rule which applies in the case of a notice necessary to terminate a tenancy, that it is waived by the tenant's disclaimer of the tenancy ,212 has been decided to apply to such a notice as is here under discussion.^i^ But the contrary has also been de- cided ^i^ and it seems somewhat difficult to justify the applica- tion of a rule, based on the theory that one denying the tenancy cannot claim a notice as tenant, to the case of a notice based on the theory that the tenancy has ceased to exist. A notice given by the landlord is not, it has been held, m effect withdrawn by him, because he allows a year to elapse without instituting the proceeding.2i5 b. Breach of condition. There are in several states decisions that a statute authorizing a summary proceeding upon the "ex- piration" of the lease or term does not authorize it for the pur- pose of enforcing a right of forfeiture by the lessor for the breach 208 Ball V Peck, 43 111. 482; Chung In Clapp v. Paine, 18 Me. 264, it Yow V. Hop Chong, 11 Or. 220. 4 Pac. is said that if the tenant forcibly re- 326 sists the landlord's attempt to enter 209 King V. Boiling, 77 Ala. 594. 54 on the expiration of the lease, no no- Am Rep 80. Compare ante, § 199, tice is necessary, provided such re- at notes 148-151; § 203, at notes 228- sistance was before the institution 229a ' of the proceeding. 210 Hutchinson v. Potter, 11 Pa. 2x1 Wolfer v. Hurst, 47 Or. 156, 82 472 (Waiver in lease, dictum) ; Pac. 20. Wilke V. Campbell, 5 Pa. Super. Ct. 212 See ante, § 192. 618- Gault V. Neal. 6 Phila. (Pa.) 213 Brown v. Keller. 32 111. 151, 83 61- Mill Creek Coal Co. v. Andrukus. Am. Dec. 258; Harrison v. Marshall. 12'pa Co Ct R. 314. And see cases 7 Ky. (4 Bibb.) 524; Rabe v. Fyler, cited post, note 212. In Seem v. Mc- 18 Miss. (10 Smeeds.& M.) 440, 48 Lees 24 111 192, it is decided that Am. Dec. 763. the landlord's failure to make the 2" Doss v. Craig, 1 Colo. 177, 91 statutory demand for possession is Am. Dec. 711. not waived by the tenant's appear- 215 Boggs v. Black, 1 Bin. (Pa.) ance. 2^^- 1752 SUMMARY PROCEEDINGS. §274 of an express condition, it being considered that the word "ex- piration" can refer only to the termination of the term or tenancy by its own limitation, and without the intervention of the land- lord.216 Even in these jurisdictions, however, the proceeding will lie if the tenancy comes to an end upon the exercise of an express option by the landlord to terminate the tenancy, the lease being limited to expire upon the exercise of such option,2i7 the distinc- tion being that before referred to, between a condition and a limitation.2is It seems, however, that if the option is exercisable by the landlord only upon a default by the tenant, the provision should be regarded as a condition and not a limitation,^^^ so that the proceeding will not lie.220 In two states, where the rule as stated in the cases first above cited was recognized, the statute has been amended so as to allow such a proceeding to enforce a 2i6SIIva V. Campbell, 84 Cal. 420, 24 Pac. 316; State v. Burr, 29 Minn. 432. 13 N. W. 676; Smith v. Sinclair. 59 N. J. Law, 84. 34 Atl. 943; Oakley V. Schoonmaker, 15 Wend. (N. Y.) 226; Kramer v. Amberg, 15 Daly, 205. 4 N. Y. Supp. 613; Id.. 115 N. Y. 655. 21 N. E. 1119; Bixby v. Casino Co., 14 Misc. 346. 35 N. Y. Supp. 677; Kelly V. Varnes, 52 App. Div. 100, 64 N. Y. Supp. 1040; In re Guaranty Bldg. Co., 52 App. Div. 140, 64 N. Y. Supp. 1056; Penoyer v. Brown. 13 Abb. N. C. (N. Y.) 82. A special stipulation for summary proceedings in such case has been decided to be inefEective. Beach v. Nixon, 9 N. Y. (5 Seld.) 35. In Bixby V. Casino Co.. 14 Misc. 346, 35 N. Y. Supp. 677, and McMahon v. Howe, 40 Misc. 546. 82 N. Y. Supp. 984, it is decided that the word "re- enter." in a clause allowing the land- lord to re-enter on default, entitles him to maintain ejectment, but not a summary proceeding. 217 Miller v. Levi. 44 N. Y. 489, 4 Am. Rep. 705; Manhattan Life Ins. Co. V. Gosford, 3 Misc. 509, 23 N. Y. Supp. 7; Scott V. Willis, 122 Ind. 1, 22 N. E. 786; Ronginsky v. Grantz, 39 Misc. 347, 79 N. Y. Supp. 839. 21s See ante, § 194 c. 219 See ante, § 194 c, at notes 87, 88. 220 See Beach v. Nixon, 9 N. Y. (5 Seld.) 35; Kramer v. Amberg, 15 Daly, 205, 4 N. Y. Supp. 613; Id., 115 N. Y. 655, 21 N. E. 1119; In re Guar- anty Bldg. Co., 52 App. Div. 140, 64 N. Y. Supp. 1056. But to the effect that the language of the lease may create a limitation terminating the tenancy on the default of the tenant. so as to authorize the proceeding, see Estelle v. Dinsbeer, 9 Misc. 487, 30 N. Y. Supp. 243; Cottle v. Sulli- van, 8 Misc. 184; Martin v. Crossley, 46 Misc. 254, 91 N. Y. Supp. 712. The case of Estelle v. Dinsbeer, 9 Misc. 487, 30 N. Y. Supp. 243, supra, might perhaps be distinguished up- on the ground that the default which was to render the lease "null and void" was in the performance of a stipulation not connected with the enjoyment of the premises, that is, the payment for furniture sold by the lessor to the lessee. §274 ILLEGAL USE OF PREMISES. 1753 forfeiture.221 In some jurisdictions the view above referred to has not been adopted, and a statute authorizing the proceeding upon the termination or expiration of the lease has been held to authorize it to enforce the right of re-entry on breach of an ex- press condition.- 22 In others there are cases in which it is as- sumed that the proceeding will lie for such purpose. ^^s In one state it has been held to lie to enforce a forfeiture by reason ot" a disclaimer of the tenancy.224 c. Illegal use of premises. As before stated, in many states 221 In Connecticut, formerly, the statute provided for the proceeding "on expiration of the lease," against a tenant "holding over after the term of the lease," and' it was held that it would not lie on breach of condition. Du Bouchet v. Wharton, 12 Conn. 533. But subsequently the statute was amended so as to au- thorize the proceeding in case the lease should "terminate by lapse of time or by reason of any express stipulation thereof," and the pro- ceeding was held to lie for breach of condition. Lang v. Young, 34 Conn. 526; Schroeder v. Tomlinson, 70 Conn. 348, 39 Atl. 484. In Massa- chusetts, also, it was held that the proceeding would not lie for breach of condition under a statute au- thorizing it "after the determina- tion of the lease, either by its own limitation or notice to quit." Fifty Associates v. Rowland, 52 Mass. (11 Mete.) 99. But the statute was sub- sequentlj' amended by adding the words "or otherwise" after "notice to quit," and the proceeding was as- sumed to lie on breach of condition. . Whitwell V. Harris, 106 Mass. 532. See remarks of Mr. Justice Gray in Willis V. Eastern Trust & Banking Co., 169 U. S. 295, 306, 42 Law. Ed. 752. The effect of the decisions holding that the statutes as amend- ed authorize the proceeding upon the breach of an express condition is to authorize the proceeding before, and not upon, or after, the termination of the lease or term, since the mero breach of condition in itself does not terminate the lease. 222 Ellis V. Fitzpatrick, 55 C. C. A. 260, 118 Fed. 430; Follin v. Coogan, 12 Rich Law (S. C.) 44; Quinn v. McCarty, 81 Pa. 475; Preston v. Stover, 70 Neb. 632, 97 N. W. 812. 223 Walker v. Bowling, 24 Ky. Law Rep. 179, 68 S. W. 135; Andrews v. Erwin, 25 Ky. Law Rep. 1791, 78 S. W. 902; Dietz v. Barnard, 32 Ky. Law Rep. 1130, 107 S. W. 766; Le- duke V. Barnett, 47 Mich. 158, 10 N. W. 182; Witte v. Quinn, 38 Mo. App. 681; Cochran v. Philadelphia Mortg. & Trust Co., 70 Neb. 100, 96 N. W. 1051; Parks v. Hays, 92 Tenn. 161, 22 S. W. 3; Johnston v. Hargrove, 81 Va. 118. In Lane v. Brooks, 120 111. App. 501, it is decided that a clause au- thorizing the lessor, upon default in rent, "at his election, without notice or demand of rent, to declare said term ended afid to re-enter," did not authorize him to maintain the pro- ceeding without previous notice of election to terminate the lease. 224 Fortier v. Ballance, 10 111. (5 Gilm.) 41; Fusselman v. Worthlng- ton, 14 111. 135. 1754 SUMMARY PROCEEDINGS. K 274 the use of the premises by the tenant, for any illegal puri^ose, or for some particular illegal purpose specified in the statute, has the efFect of forfeiting the tenant's interest.-' 25 Quite frequently the statute expressly provides that in such case the landlord may bring a summary proceeding to recover possession, or, which is the same thing, may proceed in the same manner as when the tenant holds over his term.220 A summary proceeding has, in one state at least, been regarded as a proper method of enforcing the for- feiture even though it is not so expressly provided. 227 But a stat- ute authorizing a summary proceeding against a tenant holding over after the expiration of his term would presumably not apply to such a case in any jurisdiction in which such a statute has been held not to apply in case of the breach of an express condi- tion.228 It has been decided that no notice to quit was necessary, before bringing a proceeding under the statute on account of an illegal use of the premises, when the statute did not specifically so pro- vide, and the owner of premises so used was re(iuired, under severe penalties, to eject the occupant responsible for the illegal use.229 Under a statute authorizing the proceeding in case of illegal use, such use of part of the demised premises by a subtenant, with the knowledge of the original tenant, will, it has been held, justify the recovery of the wdiole premises by the landlord in chief.230 If the business carried on upon the premises is unlawful, it is said, the landlord has the right to recover possession, though the carrying on of such business is not an indictable oft'ense.231 *2BSee ante, § 193 b. 372; McGarvey v. Puckett, 27 Ohio 226 See Co7inecticut Gen. St. 1902, § St. C69. Compare Ryan v. Kirkpat- 1085; Iowa Code 1897, §§ 2426, 4990; rick, 1 Ohio Wkly. Law Bui. 303, 7 Kansas Gen. St. 1905, §§ 2331, 2497; Ohio Dec. 219. Maine Rev. St. 1903, c. 22, § 4; Mass- 22s See ante, at note 216. achusetts Rev. Laws 1902, c. 101, § 229 Prescott v. Kyle, 103 Mass. 381. 10; Michigan Comp. Laws 1897, § 230 People v. Bennett, 14 Hun (N. 5398; New Jersey, 2 Gen. St. p. 1923, Y.) 63; People v. McCarty, 62 How. § 34; Neio York Code Civ. Proc. § Pr. (N. Y.) 152. 2231 (5); Tennessee, Shannon's 231 People v. McCarty, 62 How. Pr. Code 1896, § 6769; Utah Comp. Laws CN. Y.) 152. 1907, § 3575; Washington, Ball. Ann. As to the effect of the discontlnu- Codes & St. § 5527 (5). anoe of the illegal use prior to the 227 Justice V. Lowe, 26 Ohio St. institution of the proceeding, see 274 NONPAYMENT OF RENT. 1755 It has been held in New York that a proceeding to oust the tenant is maintainable under the statute, by reason of the illegal use of the premises by a subtenant, though such illegal use has ceased, if the subtenant is still in possession.^^^^ d Nonpayment of rent-(l) Statutory provisions. The stat- utes of many of the states authorize a proceeding to recover pos^ session of the premises upon failure to pay the agreed rent, without reference to whether the lease contains an express stipu- lation for forfeiture on such nonpayment.^^^ But summary pro- ceedings, being based purely on the statute, will not^ie on ac count of the nonpayment of rent, in the absence at least of an express stipulation for forfeitui'e,235 unless the statute expressly names this as a ground for the proceedmg.^^^ Occasionally the statute authorizes the proceeding to recover possession for nonpayment of rent only if there is not sufficien property on the premises to enable the landlord to realize the arrears of rent by distress.^s? n/r no^+TT 11 r>alv fN Y) 234 See Parker v. Geary, 57 Ark. lT.^\f:l nlU^^- P- R 301, 21 S. W. 4,.; Cha.wicK V. Pa. d stlngrished in Stearns v. Hem- ker, 44 111. 326; Leary v. Pa --■■ 66 IT2I i.b. N. C. 312, 14 Daly, 501, .... 203; „„n.er ''^J:'^^^'^^^^^''^' i XT V Q„nn ^2 72, 86, 77 Pac. 434, SuclianecK v. ' tZ paX/Lin. on t.e pre.- Sn.it.. 45 Minn. ^^'Jl^^-J^-^'^']^ ises for the purpose of doing busi- Seeger v Smith. ^^Mmn. ^79. 77^N. ness with the tenant are guilty of W. 3; Pollock v. Wh pple, 33 Neb. d sorderly conduct is not sufficient to 752. 51 N. W. 1^0; Fleishauor v^ Bell, •ustify the expulsion of the tenant. 44 Misc. 240. 88 N^ ^^ S^^P"^^^^^ ^J^^g t has been held, under a statute kota Hot Spnngs Co^ v Young 9 authorizing the expulsion of a ten- S. D. 5J7 70 N. W_ 842 People^, ant keeping a disorderly house. Bennett. 14 Hun (N. Y.) 58 (sem Moench v. Yung, 16 Daly, 143, 9 N. ble). ,,,„,. Y Sunn 637 As to evidence admis- 235 See ante. § 274 D. Le in regard to the past illegal use 3,,e Bauer v. Knoble. 51 Mxnn^ 358 of h premises, see Goelet v. Lawlor, 53 N. W. 805; Meroney v. Wnght 81 1 Misc. 59. 37 N. Y. Supp. 691. N. C. 390. And see pos a note 350. .S.Stearns v. Hemmens. 1 N. Y. .a. M«.iss^pP^ Code 19 6, § 884. Snvv 52; Conforti v. Romano. 50 2.^et. Jersey, 2 Gen. St. 1922. § 30' Misc.- 148, 98 N. Y. Supp. 194. dis- ^--^^i---^ Jf ^^^/..^^^f.^^ 1. tinguishin- Shaw v. McCarty, 2 Civ. Laws, "Landlord & Tenant § 6^ Proc R 4^^ where the subtenant was That payment of rent cannot he oh^ To longer in possession. Compare tained by distress may be shown by no longer 111 y affidavit v/ithout any actual distress. 'T,Z":Zt.. cited post, note. See Rogers v. I.ynds, 14 Wend. (N. 256, 276-280. "^-^ ^"^^^ 1756 SUMMARY PROCEEDINGS. § 274 (2) Applicability of the statutes. It has been held that a sum- mary proceeding does not lie, under a statute authorizing it for nonpayment of rent if there is no sufficient distress on the prem- ises, when the rent is to consist of a named portion of the crops, since the rent is not then certain. ^38 tj^q tenant's failure to pay taxes,239 or to pay for repairs,2'*'> as agreed, does not authorize summary proceedings as for nonpayment of rent, but it has been decided that if the lease provides that the tenant shall pay the water rents, and that on his failure so to do the landlord may enforce payment thereof to him as part of the rent, a summary proceeding will lie on account of their nonpayment.--*^ The fact that personal property is leased with the land at a gross rent does not preclude a summary proceeding on its non- payment, it issuing, in the eye of the law, entirely out of the land.-''^ If it is agreed that double rent shall be paid by the tenant in case of a breach by him of a covenant in the lease, the proceeding, it has been decided, will lie on nonpayment of such double rent.^-" It has been decided that if the tenant holds over the term with the landlord's assent, the latter may maintain a summary pro- ceeding on account of the nonpayment of rent accruing during the original term, the entire holding constituting one continuous tenancy.^-** If the tenant has ceased to hold as tenant, and has entered into an agreement of purchase, under which he is hold- ing, he cannot, it has been decided, be dispossessed for nonpay- ment of rent which accrued v/hen he was tenant.^^s 238 Oakley v. SchoonmakeT, 15 230 People v. Swayze, 15 Abb. Pr. Wend. (N. Y.) 226. (N. Y.) 432. In Ricketts v. Richardson, 85 Ind. 2*0 Bien v. Bixby, 18 Misc. 415, 18 50S, it is said, without any discus- N. Y. Snpp. 433; Simonelli v. Dl slon, that "if land be leased for cul- Ericco, 59 Misc. 485, 110 N. Y. tivation, and a house with it, in the Snpp. 1044. same contract, and the land is to be ^" Cochran v. Reich, 20 Misc. 623. paid for by half the crop, and the ^^ ^- ^- ^^PP- 443. house to be paid for by $25, payable six months before the expiration of the lease, the nonpayment of the $25 <2 Welch V. Ashby, 88 Mo. App. 400; Armstrong v. Cummings, 20 Hun (N. Y.) 313, 58 How. Pr. 331. 243 People V. Bennett, 14 Hun (N. will not authorize the landlord to y ) 58 determine the entire lease by a ten 24* People v. Paulding, 22 Hun (N. days' notice to quit.'* It was left un- y.") 91. decided whether the house alone 245 Burnett v. Scribner, 16 Barb, could be recovered. (N. Y.) C21. § 274 NONPAYMENT OF RENT. 1757 There is a decision that an executor of a tenant, who defaults in payment of rent, is not within a statute providing a summary proceeding where a tcnnnt continues in possession "in person or by subtenant" after such default.^'*^ It might have been decided that an executor who accepts the leasehold-^"^ is subject to the proceeding as a tenant, continuing in possession in person. If the proceeding is instituted against the lessee's assignee on account of the nonpayment of rent, he cannot defend by showing that he has paid all that accrued during his holding, but he must also pay whatever arrears may have become due during the tenancy of his predecessor in interest.^"*^ If the tenant fails to pay the rent reserved under the lease, a subtenant may be dispossessed on account of such nonpayment, since the subtenant's holding rests entirely on the original lease.249 That the tenant has given security for the payment of the rent does not affect the landlord's right to maintain the proceeding in ease of nonpayment, ^^o but if the tenant gives a note for the rent, the proceeding will not lie, it has been held, till the maturity of thenote.253.252 The fact that a personal action to recover the rent has been previously instituted,253 or even that there has been a judgment therein,254 has been held not to constitute a bar to a summary proceeding to recover possession for nonpaj'^ment. (3) Demand for rent as prerequisite. At common law, as is stated elscwhere,^^^ a demand for the rent on the day on which it is due, at a certain time of such day, and upon the premises, is necessary in order that the landlord may enforce an express condition of forfeiture for nonpayment. None of the statutes in regard to summary proceedings assert the necessity of any such 216 Martel v. Meehan, 63 Cal. 47. 253 Schuman Piano Co. v. Mark, 247 See ante, § 158 h. 208 111. 282, 70 N. E. 226. 248 Collender v. Smith, 20 Misc. ''* D^irant Land Imp. Co. v. Thom- 612, 45 N. Y. Supp. 1130. ^°° Houston Elec. Co., 2 Misc. 182, 21 «.o Ti * T, n t V. + CA Til one N- Y. Supp. 764. It was also there 249 Patchell V. Johnston, 64 III. 305. ^ . , ^, aecided that the fact that an under- 2«o People V. McAdam, 59 How. Pr. taking was given by the tenant on (N. Y.) 19. See Brainard v. Hud- appealing from the judgment did son, 1 City Ct. R. (N. Y.) 448. ^ot affect the right to maintain the 25],2r.2Spiro V. Barkin, 30 Misc. 87, proceeding. 61 N. Y. Supp. 870. 255 See ante, § 194 f (1). 1758 SUMMARY PROCEEDINGS. §274 formal demand, though occasionally they provide that a proceed- ing to recover possession for nonpayment of rent shall be insti- tuted only after a demand for the rent,-^^ and sometimes they pro- vide for a demand for the rent as a part of a notice to quit, that is, for a demand in the alternative for rent or for possession.^sT More frequently, however, there is no provision for a demand for the rent, but the purpose of a demand is fulfilled by the notice to quit which the statute requires,^'^^ the tenant ordinarily having the option of paying the rent during the running of the notice and of thus preventing the forfeiture.^^a That no demand for rent is necessar}- in the absence of an express requirement has been several times judicially recognized.^^o In New York the statute provides that the proceeding may be instituted after a demand for rent "or" three days' notice re- quiring payment of rent or possession.2ci The demand for rent i^a Arizona Rev. St. 1901, § 2693 (Provides that no "formal demand" Is necessary) ; Illinois, Kurd's Rev. St. 1905, c. 80, § 8 (See Cone v. Wood- ward, 65 111. 477); Missouri Rev. St. 1899, § 4131 (Section 4135 provides that any demand is good when made at any time after rent becomes due) ; Nevada Comp. Laws 1900, § 3825 (Section 3826 provides that it may be made at any time). 257 See post, at note 279. 258 See post, § 274 d (4). 259 See post, § 274 d (7). 260 Woods V. Soucy, 166 111. 407, 47 N. E. 67; Ingalls v. Bissot, 25 Ind. App. 130, 57 N. E. 723; Union Scale Co. V. Iowa Mach. & Supply Co., 136 Iowa, 171, 113 N. W. 762, 125 Am. St. Rep. 250; Kimball v. Rowland, 72 Mass. (6 Gray) 224; Borden v. Sac- kett, 113 Mass. 214; Gibbens v. Thompson, 21 Minn. 398; Spooner v. French, 22 Minn. 37; Dakota Hot Springs Co. v. Young, 9 S. D. 577, 70 N. W. 842: Johnston v. Hargrove, 81 Va. 118 (semble) ; Hendrickpon v. Beeson, 21 Neb. 61, 31 N. W. 266; Haynes v. Union Inv. Co., 35 Neb. 766. 53 N. W. 979; Horan v. Thomas, 60 Vt. 325, 13 Atl. 567. Contra. Clark v. Everly, 2 Clark (Pa.) 219. In Judd V. Fairs, 53 Mich. 518, 19 N. W. 206, reference is made to the fact that in the particular case demand for rent was made, in addition to giving the statutory notice to quit. In Parks v. Hays, 92 Tenn. 161, 22 S. W. 3; Johnston v. Hargrove, 81 Va. 118, it is decided that a demand is necessary where the proceeding is brought to enforce an express right of re-entry. To the same effect, ap- parently, is Cole V. Johnson, 120 Iowa, 667, 94 N. W. 1113. This lat- ter case is, in Union Scale Co. v. Iowa Mach. & Supply Co., 136 Iowa, 71, 113 N. W. 762, 125 Am. St. Rep. 250. supra, stated to be based on the fact that the amount of rent, as well as the place of payment, was uncer- tain. 261 Code Civ. Proc. § 2231 (2). See Rogers v. Lynds, 14 Wend. (N. Y.) 172; Tolman v. Heading, 11 App. Div. 264, 42 N. Y. Supp. 217: Boyd V. Milone, 24 ISTisc. 734, 53 N. Y. Supp. 785; Heinrich t. Mack, 25 Misc. §274 NONPAYMENT OF RENT. 1759 necessary, under this statute, to avoid the necessity of the three days' notice, must be made personally upon the tenant,262 and a demand made on an under tenant, 2^3 or by mail,^^* has been decided to be insufficient. But it may be made on one of two joint lessees.2«5 The demand may be made by an authorized agent of the landlord as well as by the landlord himself,^^^ or by one of two joint lessors.^^^ The demand, it has been said, need not be made, as at common law, upon the premises or at the place where payable.^cs But in one state a different view was taken of a statute providing for a summary proceeding after a demand for rent.^^a The demand is sufficient, it has been decided, though it is for only part of the rent then due.^^o But it is presumably not good, in some jurisdictions at least, if it is for more than the rent due,27i since the tenant is justified in refusing such a demand. A demand in terms for the amount due, without naming the amount, has been adjudged to be a sufficient compliance with the statutory 597, 56 N. Y. Supp. 155; McMahon v. 270 Mooers v. Martin, 99 Mo. 94, 12 Howe, 40 Misc. 546, 82 N. Y. Supp. S. W. 522; Slieldon v. Testera, 21 984; Glanz v. Schaefer, 102 N. Y. Misc. 477, 47 N. Y. Supp. 653, in Supp. 518. which latter case it is stated that 262 See People v. Gross, 50 Barb, the payment of such part prevents (N. Y.) 231; Tolman v. Heading, 11 the issue of the precept till the ten- App. Div. 264, 42 N. Y. Supp. 217; ant is again put in default by a de- Boyd V. Milone, 24 Misc. 734, 53 N. mand. Y. Supp. 785. 271 It is so decided in Nowell v. 263 People V. Piatt, 43 Barb. (N. Wentworth, 58 N. H. 319, as regards Y.) 116. the demand there required as a pre- 264 Zinsser v. Herrman, 23 Misc. requisite to a summary proceeding, 645, 52 N. Y. Supp. 107. it being saiu that the common-law 265Geisl8r v. Acosta, 9 N. Y. (5 ^.^^^ applies except as changed by Seld.) 227. statute. But in New York a demand 266 People V. Stuyvesant. 1 Hun (N. ^^^ ^^^^ ^^^^ .^ ^^^ ^^^^^ ^^ ^^ ^^_ •' _^ garded as good. See Durant Land 267 Griffin v. Clark, 33 Barb. (N. ^ _ r^ * t^. -r.^ r. Imp. Co. V. East River Elec. Co., 15 ^'^ '^1' , ,. T^. -u ..A ^^T^.1, Daly, 337, 6 N. Y. Supp. 659; Sheldon 268 Cockerlme v. Fisher, 140 Mich. 95. 103N. W. 522, 12Det. Leg.N. 55; ^- Testera, 21 Misc. 477, 47 N. Y. Wolcott V. Schenk, 16 How. Pr. (N. Supp. 653; 3 McAdam, Landl. & Ten. Y) 449 (3d Ed.) 97. There the demand is 269 Gage V. Bates, 40 Cal. 384. not bad because interest is included. And see Nowell v. Wentworth, 58 N. People v. Dudley, 58 N. Y. 223. H. 319, referred to infra, note 271. 1760 SUMMARY PROCEEDINGS. §274 requirement. 272 A demand is obviously ineffective if the rent demanded is not due at the time of demand.^'^^ That the act of the landlord be effective as a demand, it must, it has been said, be intended as such by the landlord, and so un- derstood by both parties.^'^^ The statutory requirement of a demand for the rent as a pre- r„'quisite to the proceeding may, it has been decided, be dispensed with by express agreement. ^'^^ (4) Notice to quit as prerequisite — (a) Statutory provisions. Some of the statutes authorize the proceeding immediately upon default in the payment of rent,-'^ and some after a prescribed number of days.^'^ Some provide that the landlord or person entitled to possession must make demand for possession or give a notice to quit of a prescribed number of days before instituting proceedings.^'^'* Others require that he first give notice of a cer- 2T2 Durant Land Imp. Co. v. Thom- son-Houston Elec. Co., 2 Misc. 182, 1 N. Y. Supp. 764; McLean v. Spratt, 20 Fla. 515. Compare Ralph v. Lom- er, 3 Wash. 401, 28 Pac. 760; Byrkett V. Gardner, 35 Wash. 668, 77 Pac. 1048. 273 Parker v. Gortatowsky, 129 Ga. 623, 59 S. B. 286. 2T4 Norris v. Morrill, 40 N. H. 395, 43 N. H. 213. 275 Espen V. Hinchcliffe, 131 111. 468, 23 N. E. 592. 216 Georgia Code 1895, § 4813 (Af- ter demand for possession); Minne- sota Rev. Laws 1905, § 4038; Mis- souri Rev. St.. 1899, § 4131 (After de- maud for rent) ; Nevada Comp. Laws 1900, § 3825 (After demand for rent) ; New York Code Civ. Proc. § 2231 (After demand of rent, or three days' notice requiring payment of rent or possession) ; Oregon. Bell. & C. Codes, § 5745 (Semble, after de- mand for possession. See Hislop v. Moldenhauer, 21 Or. 208, 27 Pac. 1052); Sotith Carolina Civ. Code. § 2423 (Demand for possession requi- site. See State v. Marshall, 24 S. C. 507; Keller v. Pagan, 54 S. C. 255, 32 S. E. 353). iTi Arizona Rev. St. 1901, § 2693 (Five days) ; Rhode Island Gen. Laws 1S96, c. 269, § 7 (If rent over- due fifteen days). 2TS Arkansas. Kirby's Dig. St. 1904, § 3630 (After three days' notice to quit and demand made in writing for possession); Connecticut Gen. St. 1902, § 1078 (Ten days' notice, to be given after nine days from de- fault in rent under parol lease) ; Indiana, Burns' Ann. St. 1901, §§ 7092, 7094 (After ten days' notice to quit, lease to determine unless rent paid within the ten days, but if rent payable in advance, no notice to quit necessary) ; Iov:a Code 1897, § 4208 (After three days' notice to quit) ; Kansas Gen. St. 1905, §§ 4057, 4058 (If tenancy for three months or more, ten days' notice to quit shall terminate lease, unless rent paid within ten days, and if tenancy for less time, five days' notice, and it shall be stated in notice that proceed- ing will be instituted. See section 5843) ; Massachusetts Rev. Laws § 274 NONPAYMENT OF RENT. 17Q1 tain number of days, usually three, requiring in the alternative payment of rent or possession of the premises ;2'^9 while one at least provides for a notice to the effect that the tenancy will terminate unless the rent is paid within a specified number of days.280 Occasionally the statute has required both a notice to terminate the tenancy for nonpayment of rent, and a subsequent notice as a preliminary to a possessory proceeding.-^i No notice to quit is necessary if the statute does not expressly require it,282 and the fact that the lease authorizes the lessor to declare a forfeiture for nonpayment, after a notice of intention to do so, does not render such a notice necessary when the pro- ceeding is brought imder the statute, without reference to such provision for forfeiture.^ss A provision for the termination of the tenancy and the re- 1902, c. 129, §§ 11, 12 (After fourteen sissippi Code 1906, § 2885; Montana days' notice to quit); Michigan, 3 Rev. Codes 1907, § 7271; A^ew Jersey, Comp. Laws 1897, § 11164 (After de- 2 Gen. St. 1902, § 30; New York Code mand of possession and tenant's non- Civ. Proc. § 2231; Utah Comp. Laws compliance for seven days); Nebras- 1907, § 3575; Virginia Code 1904, § ka Comp. St. 1905, § 7527 (After no- 2719 (Default continued five days af- tice to leave, to be served three days ter such alternative notice) ; WasJi- before commencing action) ; Neio ington. Ball. Ann. Codes & St. § Hampshire Pub. St. 1901, c. 24 b, § 5527; Wisconsin Rev. St. 1898, § 3 (After seven days' notice, if tenant 3358. neglects or refuses to pay the rent on 280 Illinois, Kurd's Rev. St. 1905, c. demand); New Mexico Comp. Laws, 80, § 8 (Notice that if not paid with- §§ 3345, 3347; North Dakota Rev. in time named, at least five days, ten- Codes 1905, §§ 8406, 8407 (After non- ancy to terminate), payment for three days and three 2si gee Douglass v. Parker, 32 days' notice to quit); Pennsylvania, Kan. 593, 5 Pac. 178; Smith v. Rowe, Pepper & Lewis' Dig. Laws, "Land- 31 Me. 212. lord & Tenant," § 34 (After notice to 282 Caley v. Rogers, 72 Minn. 100, quit within fifteen or thirty days, ac- 75 N. W. 114. Or when the statute cording to time of year) ; South Da- expressly so provides. Ingalls v. kota. Justices' Code, §§ 44, 45 (After Eissot, 25 Ind. App. 130, 57 N. E. 723; nonpayment for three days and three Thomas v. Walmer, 18 Ind. App. 112, days' notice to quit) ; Wyoming Rev. 46 N. E. 695. See, also, Dietz v. St. 1899, §§ 4486, 4487 (After non- Barnard, 32 Ky. Law Rep. 1130, 107 payment for three days and three S. W. 766, where the lease provided days' notice to quit). for a forfeiture and recovery of pos- 279 California Code Civ. Proc. § session thereon without demand. 1161; Colorado, Mills' Ann. St. 1891, 283 Rogers v. Grote Paint Co., 118 § 1973; Florida Gen. St. 1906, § 2227; Mo. App. 334, 94 S. "W. 549, Idaho Code Civ. Proc. § 3974; Mis- L. and Ten. 111. 1762 SUMMARY PROCEEDINGS. §274 covery of possession after giving a notice to quit of a prescribed number of days does not cause the tenancy to terminate imme- diately upon the giving of the notice, but it does so only after the expiration thereof.^s^ The suit for possession cannot be insti- tuted until after the last day upon which the rent may, by the terms of the notice, be paid.^'*^ (b) Form of notice. A statutory requirement of three days' notice to quit is not satisfied by a written demand for the rent followed by an interval of three days before action,-^'' and a re- quirement of a notice to quit of a certain number of days has been held not to be satisfied by a notice to the tenant, "being in arrears of rent," to deliver up the premises "forthwith, "287 j^ being said that the notice should either state with accuracy the time at which by law the tenant is required to leave the prem- ises, or in some other way refer him to his legal rights under the statute.2S8 A demand for possession, without naming any time for quitting, would seem ordinarily to be insuflfieient,-**^ but the requirement of a notice to quit has lieen regarded as not requir- ing a statement in the notice that it is on account of the nonpay- ment of rent.2»o The requirement, found in a number of states,^^"* of a notice in the alternative, requiring either the payment of rent or the delivery of possession within a certain time, would seem to involve a statement in the notice that the rent is in arrear and a demand thereof,29i but it has in one state, apparently, been regarded as 284 Frazier v. Caruthers, 44 111. 28o See Currier v. Barker, 68 Mass. App. 61; Douglass v. Parker, 32 Kan. (2 Gray) 224. 593, 5 Pac. 178; Brcoks v. Allen, 146 290 Granger v. Brown, 65 Mass. (11 Mass. 201, 15 N. E. 584; Wray-Aus- Cush.) 191. And see Judd v. Fairs, tin Mach. Co. v. Flower, 140 Mich. 53 Mich. 518, 19 N. W. 266, which 452, 103 N. W. 873, 12 Det. Leg. N. seems to assume this, there having 214. been, however, a demand for the rent 285 Cteek V. Preston, 34 Ind. App. previous to the notice. An objection 343, 72 N. E. 1048, a case involving to the notice on this ground must, the computation of the time named, it has been held, be made before trial. 286Conley v. Conley, 78 Wis. 665, McLain v. Nurnberg, 16 N. D. 144, 47 N. W. 950. 112 N. W. 243. 28T oakes v. Munroe, 62 Mass. (8 29f a See ante, at note 279. Cush.) 282; Elliott v. Stone, 66 Mass. 291 a notice demanding possession (12 Cush.) 174. for failure to pay rent, and notify- 288 See Granger v. Brown, 65 Mass. ing the tenant that unless the rent is (11 Cush.) 191. paid, or possession delivered within § 274 NONPAYMENT OF RENT. 1763 satisfied by an oral demand for the rent, followed Ijy a written notice to qmt.292 a demand for payment of the rent, without the alternative demand for possession within the prescribed time, as provided by the statute, is not sufficient.293 A statement in the notice that the rent was due and unpaid on a certain day, without naming the amount, has been regarded as sufficiently designating the sum due, by reason of the tenant's knowledge of the amount of rent then becoming due.294 A statute requiring a notice that, unless payment is made within a period named, the lease will be terminated, has been regarded as complied with by a demand for immediate payment, coupled with a demand for possession within the prescribed number of days if the rent is not paid.205 A notice "to leave" for nonpay- ment of rent is a sufficient compliance with a statute requiring a notice to quit.^as The notice should describe the premises with sufficient certainty to enable the tenant to identify them.297 it has been regarded as defective when, though correctly describing the premises, it wrongfully describes the lease as made by the person instituting the proceeding instead of by his grantor.298 An obvious clerical mistake in the notice, such as the substitu- tion of "me" for "you" or vice verm, will not, it has been de- cided, invalidate the notice.^^^ three days, proceedings for posses- 203 People v. Gross, 50 Barb. (N. sion would be begun, was regarded Y.) 231. As to the computation of as sufficiently notifying the tenant the statutory period, see Bristed v. that if he paid the rent he need not Harrell, 20 Misc. 348, 45 N. Y. Supp. deliver possession. Brauchle v. 918. Nothelfer, 107 Wis. 457, 83 N. W. 201 Ralph v. Lomer, 3 Wash. 401, 653. In Mullone v. Klein, 55 N. J. 28 Pac. 760, citing McLean v. Spratt, Law, 479, 27 Atl. 902, it is said that 20 Fla. 515, ante, note 272. the notice must be given to the ten- 295 Rowland v. White, 48 111. App. ant from whom the rent is due by the 236; Parnam v. Hohman, 90 111. 312. person entitled to receive the rent, 200 Douglass v. Anderson, 32 Kan. or his agent, that it must be a de- 350, 4 Pac. 257. mand for rent, and must state the 29- parnam v. Hohman, 90 111. 312; amount due and for what premises it Whipple v. Shewalter. 91 Ind. 114. is due, and that it must show who 298 Henderson v. Carbondale Coal is the landlord and require payment & Coke Co., 140 U. S. 25, 35 Law Ed. to him within three days of its serv- 332. i<^e. 299 Lacrabere v. Wise (Cal.) 71 2n2judd V. Fairs, 53 Mich. 518, 19 Pac. 175. N. W. 266. 1764 SUMMARY PROCEEDINGS. §2/4 (e) Person to give notice. The person to give the notice to quit is undoubtedly, in the ordinary case, the person to whom the rent is due, and who is instituting the proceeding. A notice to quit for nonpayment of rent has been treated as sufficient when signed by but one of the executors who instituted the proceeding.300 j^ notice, followed by a proceeding, by one of two joint lessors, was upheld.^°^ A notice signed by the agent of the landlord was held to be sufficient when the statute provided for the removal of the tenant for nonpayment of rent after service on him of three days' notice "in behalf of" the person entitled to the rent, and authorized an agent to make the application for the tenant's removah^o^^ (d) Waiver of requirement. There are decisions to the effect that the statutory requirement of a notice to quit maj^ be waived by the person in possession.^''^ In some jurisdictions, such a notice might be regarded as jurisdictional, and not susceptible of waiver.304 800 Gilmore v. H. W. Baker Co., 12 Wash. 468, 41 Pac. 124. 301 Mullone v. Klein, 55 N. J. Law, 479. 27 Atl. 902, ante, note 291. See Griffin v. Clark, 33 Barb. (N. Y.) 46. 302 Powers v. De O, 64 App. Div. 373, 72 N. Y. Supp. 103. A demand for rent, required by a local statute, as a preliminary to the proceeding, may be made by an em- ployee of the lessor's agent, this be- ing a class of duty which may be delegated by an agent. Neiner v. Al- temeyer, 68 Mo. App. 243. S03 Belin?ki v. Brand, 76 111. App. 404, which is based on Espen v. HinchlifEe, 131 111. 468, 23 N. E. 592, where there is a strong dictum to that effect, which is in turn based upon authorities adjudging that the common-law demand as a prerequi- site for breach of an express condi- tion may be waived. The same is as- sumed in Woodward v. Cone, 73 111. 241. In Kenyon v. Manley, 125 III. App. 615, it is held that a waiver in terms of "notice to terminate the tenancy" dispenses with the notice required by the statute in order to terminate a tenancy for nonpayment of rent. Eichart v. Bargas, 51 Ky. (12 B. Mon.) 462, is also to the effect that the parties may by agreement dispense with the requirement of notice. 304 See Wolfer v. Hurst, 47 Or. 156, 80 Pac. 419, 82 Pac. 20. Tn Pennsyl- vania there is one decision that the parties cannot, by stipulation, fix a time for notice less than that named in the statute. McCloud v. Jaggers, 3 Phila. 304. The contrary seems to be assumed in Hopkins v. McClel- land, 8 Phila. 302, and presumably the courts of that state would follow the same rule in this regard as that which they have adopted as to the notice to quit as a prerequisite to a proceeding against a tenant holding over, that it may be waived. See ante, note 210. 274 NONPAYMENT OF RENT. 17G5 (e) Service of notice. The statutes of several states contain provisions as to the mode of service of the notice in case the ten- ant is not found, or the premises are vacant,305 but it has appar- ently been decided that, even without any express provision to that effect, the notice to pay the rent or deliver up possession may be served by delivery on the premises to a member of the tenant's family of suitable age and discretion.soe And it has been held that, where a notice to quit for nonpayment of rent was left at the tenant's residence, not on the demised premises, and another person, whose attention was called to it, notified the tenant thereof the following day, the period of notice prescribed by the statute began to run from the receipt of the notice by the tenant.30 7 Where the statute provided that the notice might be served by delivery to the tenant or by leaving it with some person residing on or in possession of the premises, it was held to be sufficient that it was delivered to the father of the tenant, and the same day handed by him to the tenant, though the father was neither residing on or in possession of the premises-'^'^s A requirement that the notice be "delivered" to the tenant is not satisfied by merely reading it to him.^o^ The service of the notice need not be by an officer, in the ab- sence of a specific requirement to that effect.^^*^ The burden is on plaintiff to show that the service was in compliance with the statute.^n There is no sufficient proof of service of the demand or notice when the complainant merely pro- duces a copy of a letter containing the demand or notice, which letter is alleged by him to have been mailed to the tenant, and also a registered letter receipt signed by the name of the tenant "per" a third person, it not being shown what relation such per- son bore to the tenant, nor why personal service was not made.^i^ 305 California Code Civ. Proc. § soc McSloy v. Ryan, 27 Mich. 110. 11G2; Florida Gen. St. 1906, § 2227; And see Hazeltine v. Colburn, 31 N. Idaho Code Civ. Proc. 1901, § 3977; H. 466, ahcl ante, § 274 a (3) (f). Montana Rev. Codes 1907, § 7272; 307 Hodgldns v. Price, 137 Mass. 13. Nelraska Comp. St. 1905, § 7527; aos parnam v. Hohman, 90 111. 312. New York Code Civ. Proc. §§ 2231, 309 Jenkins v. Jenkins, 63 Ind. 415. 2240 (see Posson v. Dean, 8 Civ. Proc. sio Farnam v. Hohman, 90 111. 312. R. 177) ; Utah Comp. Laws 1907, § 3^1 Tolman v. Heading, 11 App. 3578; Washington, Ball. Ann. Codes Div. 264, 42 N. Y. Supp. 217. & St. § .^529; TT^iscoji'^m Rev. St. 1898. 312 Henderson v. Carbondale Coal § 3358; Wyoming Rev. St. 1899, § & Coke Co., 140 U. S. 25, 35 I^w. Ed. 4487. 382. It does not appear clearly from 1766 SUMMARY PROCEEDINGS. § 274 It has been held that service of the notice cannot he proven by affidavit of the j^er.son making it.^^^ (f) Waiver of notice given. A notice was regarded as insuffi- '^'.ient to support a proceeding for possession when the statute pro- vided for a notice to quit the premises "for which the action is about to be brought," and nearly a year was allowed to elapse after the notice before the beginning of the action.-'^^'* But sixty days' delay in instituting the proceeding has been held not to involve a waiver of the notice.^^^ It is said that a notice given by the landlord is "waived" by him if, after giving it, he accepts the personal agreement of a third person to be surety for the rent.^^^ The tenant's continuance in possession after the time named for quitting, and the landlord's conduct in allowing it, have been regarded, in connection with the continued payment and ac- ceptance of rent, as evidence of a waiver proper for the consider- ation of a jury .31 8* (5) Counterclaim as defense. In a summary proceeding to recover possession on aeeount of nonpayment of rent, the tenant cannot assert that an ofl'set or counterclaim exists in his favor to an amount sufficient to extinguish the claim for rent, whether the asserted claim on his part arises from a breach of covenant by the landlord or otherwise.^^^ It has been remarked that the ob- the opinion whether the proceeding 33 Am. Dec. 228. But there is no was or was not under the express waiver, it is there said, if the third clause of forfeiture for nonpayment person merely agrees to obtain secu- of rent. rity, which he fails to do. 31S Lacrabere v. Wise, 141 Cal. 554, 3ifia Norris v. Morrill, 43 N. H. 213. 75 Pac. 185, 99 Am. St. Rep. 88. It As to the effect of the acceptance of was there held that a statutory provi- the overdue rent, see post, § 274 d sion that an affidavit may be used (7). to prove the service of a notice in an 317 vau Every v. Ogg, 59 Cal. 563, action or special proceeding to ob- 43 Am. St. Rep. 50; Moroney v. Hel- tain a provisional remedy did not lings, 110 Cal. 219, 42 Pac. 560; Bor- apply. den v. Sackett, 113 Mass. 214; Bar- 314 Douglass V. Whitaker, 32 Kan. ker v. Walbridge, 14 Minn. 469 (Gil. 381, 4 Pac. 874. But contra when the 351) ; McSloy v. Ryan, 27 Mich. 110; tenant' repudiated the tenancy on re- Peterson v. Kreuger, 67 Minn. 449, 70 ceiving the notice. Douglass v. An- N. W. 567; People v. Kelsey, 14 Abb. derson, 32 Kan. 350, 4 Pac. 257. Pr. (N. Y.) 372; Durant Land Imp. 315 McLain v. Nurnberg, 16 N. D. Co. v. East River Elec. Co., 15 Daly, 144, 112 N. W. 243. 337, 6 N. Y. Supp. 659; Pearson v. 316 Whitney v. Swett, 22 N. H. 10, Germond, 83 Hun, 88, 31 N. Y. Supp. 274 NONPAYMENT OF RENT. 1767 ject of the statute in providing an adequate and summary method of obtaining possession would be frustrated if the tenant could assert defenses of this character.^i^ In one state, however, a statute has been adopted expressly providing for such a defense. The view that the tenant has, apart from statute, no right to assert a counterclaim, does not in any way affect his right to show that for some reason there is no rent due to the landlord, as when there has been an eviction by the latter.^^o it has been regarded as a good defense that a garnishment proceeding, instituted a-ainst the tenant by the landlord's creditor, is pending, a stat- ute providing that all right of action for money garnished shall be suspended by such a proceeding.^si 358; Barnum v. Fitzpatrick, 42 N. Y. St. Rep. 179, 16 N. Y. Supp. 934; Ralph V. Lomer, 3 Wash. 401, 28 Pac. 760; Carmack v. Drum, 27 Wash. 382, 67 Pac. 808; Hunter v. Porter, 10 Idaho, 72, 86, 77 Pac. 434. In Barn- um V. Keeler, 33 Conn. 209, it is questioned whether a counterclaim arising from breach of the landlord's covenant could be asserted in such a proceeding. The decision was based on the fact that the asserted damages did not equal the rent due. 318 Phillips V. Port Townsend Lodge, 8 Wash. 529, 36 Pac. 476. 319 New York Code Civ. Proc. § 2244, as amended by Laws 1893, c. 705, authorizes the tenant to set forth "a statement of any new matter con- stituting a legal or equitable defense or counterclaim," and provides that "such defense or counterclaim may be set up and established as though the claim for rent in such proceeding was the subject of an action." This statute does not authorize an affirma- tive money judgment in favor of the tenant. Wulff v. Cilento, 28 Misc. 551, 59 N. Y. Supp. 525. In a lower court this statute has, somewhat sin- gularly, been given the effect of au- thorizing the tenant to deny his landlord's title in such a proceeding. See In re McCormick, 30 Misc. 285, 63 N. Y. Supp. 492. The case of Lieb- mann's Sons' Brew. Co. v. DeNicolo, 46 Misc. 268, 91 N. Y. Supp. 791. seems adverse to the right to assert a breach of covenant by the lessor as a counterclaim under this statute. A breach of covenant, to be available under this statute, must be pleaded as a counterclaim. Jefferson Real Estate Co. v. Hiller, 39 Misc. 784, 81 N. Y. Supp. 374. 320 Wheelock v. Warschauer, 34 Cal. 265; Steinback v. Krone, 36 Cal. 303; Skaggs v. Emerson, 50 Cal. 3; Witte v. Quinn, 38 Mo. App. 681; Hamilton v. Graybill, 19 Misc. 521, 43 N. Y. Supp. 1079; Ferber v. Apfel, 113 App. Div. 720, 99 N. Y. Supp. 215. See Wetterer v. Soubirous, 22 Misc. 739, 49 N. Y. Supp. 1043; Seigel v. Neary, 38 Misc. 297, 77 N. Y. Supp. 854. And so he may show that the rent was reduced, in accordance with the stipulations of the lease, by his deprivation of the enjoyment of the premises owing to repairs made by the landlord. Durant Land Imp. Co. V. East River Elec. Co., 17 Civ. Proc. R. 224, 15 Daly, 337, 6 N. Y. Supp. 659. 321 O'Connor v. White, 124 Mich. 22, 82 N. W. 664. It was held to be im- 1768 SUMMARY PROCEEDINGS. § 274 (6) Waiver of right to maintain proceeding. The courts have occasionally recognized the possibility of a waiver by the land- lord of the right to maintain a summary proceeding on account of nonpayment of rent. The taking of the tenant's note for past due rent and the acceptance of rent subsequently accruing have been regarded as constituting a waiver of the right to maintain the proceeding on account of the nonpayment of the former,322 though a different view seems to have been adopted as to the mere taking of a note for the rent.^^^ tj^^ acceptance of subse- quent rent alone has also been regarded as constituting a waiver of the right.324. 325 There is one decision to the effect that a levy of distress operates as a waiver.326 The taking of security for the rent does not involve a waiver in this regard,3-7 nor does the bringing of an action therefor.^^'s That the tenant has paid part of the arrears of rent, and that this payment has been accepted by the landlord, does not, it would seem clear, preclude a proceeding for nonpayment of the bal- ance, and it has been so decided.329 In one state, however, it has been decided that payment of part of an installment of rent pre- cludes a proceeding for nonpayment of the balance, at least un- til the period covered by such part payment has elapsed.^so. 331 material that the tenant informed 826 Wilder v. Eubanks, 21 "Wend, the creditor of the indebtedness and (N. Y.) 587. acted in collusion with the creditor. s2t People v. McAdam, 59 How. Pr. 322 Horn V. Peteler, 16 Mo. App. (N. Y.) 19. See Brainard v. Hud- 438. son. 1 City Ct. R. (N. Y.) 448. 323 Evans V. Voght, 8 Mo. App. 575. sss See ante, at note 253. This view Is indicated in Spiro v. 329 Durant Land Imp. Co. v. East Barkin, 30 Misc. 87, 61 N. Y. Supp. River Elec. Co., 15 Daly, 337, 6 N. 870, it being said that the proceed- y. Siipp. 659; Barnum v. Fitzpat- ing cannot be brought till after the rick, 46 N. Y. St. Rep. 891. 19 N. Y. note matures. Supp. 385; Bennett v. Nick, 29 Misc. 324,325 Wolff V. Shlukle, 4 Mo. App. 632, 61 N. Y. Supp. 106. Where the 197; Mooers v. Martin, 23 Mo. App. payment was to be in part in 654; Id., 99 Mo. 94, 12 S. W. 522; "board" and in part in cash, the fact Neiner v. Altemeyer, 68 Mo. App. that the board was furnished did 243; Stover v. Hazelbaker, 42 Neb. not prevent a proceeding for non- 393, 60 N. W. 597 (semble). The payment of the cash. Mahan v. Se- bringing of an action for such rent well, 25 N. Y. St. Rep. 930, 6 N. Y. has likewise been so regarded. Supp. 662. Rich V. Rose, 124 Ky. 669, 30 Ky. 330,331 Barber t. Stone, 104 Mich. Law Rep. 925, 99 S. W. 953. 90, 62 N. W. 139. . 274 NONPAYMENT OF RENT. 1769 (7) Payment or tender of rent— Redemption. A tender of the rent, made before the giving of the statutory demand for posses- sion or notice to quit, is a bar to a proceeding to recover possession on account of the nonpayment of the rent.^^a The statute, in providing for a notice to quit, occasionally pro- vides that the rent may be paid within the period named for the notice 3-'3 or requires the notice to be in the alternative, for the payment of rent or delivery of possession.334 But it has been de- cided that even when the statute does not in terms provide for the payment of the overdue rent within the period during which the notice is to run, the purpose of the provision, for a certain len-th of notice before the tenant is liable to suit for disposses- sion must have been to enable the tenant to pay, and that he has until the expiration of the notice in which to pay or tender the rent, and so prevent his expulsion.^ss , ^ , ^, After the period of the notice has expired, it has been held, the tenant has no longer this right,33e and a like view has been taken as regards a tender after the commencement of the proceeding.-^ But occasionally the statute provides that the tenant may pay the »32 Fisher V. Smith. 48 111. 184; 842. But a different view is indi- Tuttle V Bean, 54 Mass. (13 Mete.) caled in Norris v. Morrill. 43 N. H 275- North Chicago St. R. Co. v. Le 213; and in Kimball v. Rowland 72 Grand Co., 95 111. App. 435. In Mass. (6 Gray) 224. it was held the case first cited it was held that a that, after the giving of notice to tender at the place where the rent quit under a statute authorizing the was payable was no defense, since termination of a tenancy at will for the tenant had, by a statement to nonpayment of rent by fourteen the landlord that he would call and days' notice, the landlord d^^ not, by nav it misled the landlord, so that accepting the overdue rent, lose his the latter was not present to receive right to terminate the lease, he ex- it at such place. Pressly reserving this right on ac- 333 See Indiana, Burns' Ann. St. cepting the rent. 1901 ^ 7092- Michigan Comp. Laws 336 Roussel v. Kelly, 41 CaJ 3b0, 1 Rq7 11164 Ralpli V. Lomer, 3 Wash. 401, 28 Pac. Li See staiutes referred to ante. 760. See Tuttle v. Bean, 54 Mas.. note 279. and Johnston v. Hargrove, (13 Mete.) 275. where the court re- ^1. ' frains from deciding this question. 335 Chadwick V. Parker. 44 111. 326; 33. stover v. Chasse, 9 Misc. 45, 29 Chapman v Kirby, 49 111. 211; N. Y. Supp. 291, a tender being al- Fisher V Smith, 48 111. 184; Lasher lowed by statute as a defense only V Graves 124 111 App. 646. To the when the complaint demands judg- same effect is Dakota Hot Springs ment for a sum of money. Co. V. Young, 9 S. D. 577. 70 N. W. 1770 SUMMARY PROCEEDINGS. § 274 rent and costs before the judgment of dispossession is ren- dered,^^^ or before the issuance or execution of the writ.^^" In one state it was decided that a statute authorizing the tenant, after dispossession under such proceedings, to pay, within six months, the rent, costs, and interest, and thereby regain posses- gJQQ 340 impliedly authorized hira to do so before dispossession.^^^ In another state it has been decided that, when the statute pro- vides that one against whom a final order of dispossession is made may stay the issue of a warrant by payment of the rent duo and costs, the tenant may pay the rent and costs into court, although no formal order of removal has been rendered, he electing not to try any issue.3-*2 There are in a few states provisions authorizing the tenant, or other person interested, even after dispossossion unrlor the ■iM^"''^- ment in the proceeding, to regain possession by paying or ten- dering the rent due and costs,^-*^ this being occasiunaily reierrcJ 8SS Arkansas, Kirby's Dig. St. 1904, stay may be obtained after Judgment § 4705 (Before judgment) ; Missouri on appeal. Flanneken v. Wright, 64 Rev. St. 1899, § 4133 (At hearing). Miss. 217, 1 So. 157. Montana Rev. ■iS9 California Code Civ. Proc. § Codes 1907, § 7283 (same as Call- 1174 (Execution not to issue until fornia) ; New York Code Civ. Proc. five days after judgment, within § 2254 (After order of restitution which time any person Interested in and before warrant Issued, tenant the term may pay Into court the rent may pay rent and obtain a stay); with interest). That the right is Pennsylvania, Pepper & Lewis' Dig. lost by relinquishment of possession, Laws, "Landlord & Tenant," § 34 see Owen v. Herzihoff, 2 Cal. App. (May pay rent and costs at any time 622, 84 Pac. 274. Idaho Code Civ. before execution and supersede judg- Proc. § 3990 (same as California); ment) ; Utah Comp. Laws 1907, § MassacJmsetts Rev. Laws 1902, c. 3584 (same as California) ; Washing- 129, §§ 11, 12 (Lease terminated ton. Ball. Ann. Codes & St. § 5542 unless tenant, at least four days (same as California) ; Wisconsin before return day of the writ, pays Rev. St. 1898, § 3371 (May stay pro- or tenders rent due with inter- ceedings by paying rent and costs), est and cost). This implies that s*"^ Minnesota Rev. Laws 1905, § tender may be made at any time 3328. after notice to quit, and it is suffi- 3*1 George v. Mahoney, 62 Minn, cient to tender the rent without 370, 64 N. W. 911. the taxes due, although the tenant 3-*2 Flewcllen v. Lent, 91 App. Dlv. has agreed to pay taxes. Hodgkins 430, 86 N. Y. Supp. 919. V. Price, 137 Mass. 13. Mississippi 343 Arkansas. Kirby's Dig. St. 1904, Code 1906, § 2894 (Issue of warrant § 4707 (Authorizes a mortgagee of to be stayed if before its issue the the leasehold to redeem within six rent due and costs are paid). Such months, while section 4471 recog- § 274 NONPAYMENT OF RENT. 1771 to as "redemption." In New York it is provided that, in case the term has five years yet to run, the lessee, his executor, adminis- trator or assignee, may, within one year, redeem by paying rent and interest, with charges and costs incurred, whereupon he will hold as before,^^^ and a judgment creditor of the lessee and a mortgage of the leasehold are given the same right.-"^^^ The stat- ute provides for the filing of a petition for redemption, and re- quires the court to establish the rights of the parties by "such a final order as justice requires. "^^^ The burden of showing a payment of the rent in order to pre- nizes a right in the tenant to relief money be paid into court. Bien v. in equity by providing that the ten- Bixby, 18 Misc. 415, 41 N. Y. Supp. ant's rights are barred if he fails to 433. Tender of the excess of the ar- ask such relief within sx months); rears of rent and costs and charges Calfornia Code Civ. Proc. § 1179 over the profits received by the land- ( Relief in case of hardship, if appli- lord during the interval of his pos- catlon for relief made within six session is Insufficient. Pursell v. months after the forfeiture de- New York Life Ins. & Trust Co, 42 Glared); Minnesota Rev. Laws 1905, N. Y. Super. Ct. (10 Jones & S.) § 3328 (Tenant entitled to be re- 383. This provision of the statute stored to possession on paying or does not apply when the tenant is bringing into court, within six dispossessed under Code Civ. Proc. months after dispossession, the § 2231 for the nonpayment of taxes amount of the rent, interest, and as well as of rent. Witty v. Acton, costs). See Wacholz v. Griesgraber, 58 Hun, 552, 12 N. Y. Supp. 757. 70 Minn. 220, 73 N. W. 7. Washing- The term named in a covenant for ton. Ball. Ann. Codes & St. 5545 renewal cannot, it has been decided, (Court may relieve if application be added to the original term in made, within thirty days after judg- order to make a five-year term with- ment of forfeiture, by the tenant. In the statute. Bokee v. Hamersley, subtenant, mortgagee or other per- 16 How. Pr. (N. Y.) 461. As to the son interested). right of a mortgagee of the lease- 344 Code Civ. Proc. § 2256. It has hold, who has taken a new lease, to been decided that the lessee of the foreclose the tenant's outstanding tenant has no right to redeem under right of redemption, see Chumar v. this statute. Koppel v. Tilyou, 31 Melvin, 53 Misc. 460, 105 N. Y. Supp. Civ. Proc. R. 185, 70 N. Y. Supp. 910. 27. Since the effect of the tender of rent 345 Code Civ. Proc. § 2257. and costs is not to discharge the S46 Code Civ. Proc. § 2259. landlord's claim, but only to enable The final adjustment of the the tenant to obtain a standing in amount to be paid by the tenant in court in order to have all rights and order to redeem is based on general liabilities adjusted, the tender need equitable principles, and not strictly not be kept good, nor need the 1772 SUMMARY PROCEEDINGS. § 274 vent a jndcrmcnt for the landlord would seem to lie npon the tenant,^^'^ but in one state it has been said to be for the landlord to show that the rent was not paid before the expiration of the notiee.3^8 Any provision of the statute as to notice to the land- lord, as a prerequisite to an assertion of the right of redemption, must obviously be complied with.s-'^ e. Breach of express stipulation other than for rent. Ordi- narily the breach by the tenant of a covenant or stipulation to be performed by him can give no right to the landlord to maintain a summary proceeding to recover possession.-'^^^ In some states, however, the statutes authorize such proceedings by the landlord who has violated or who has failed to perform some stipulation or covenant of the lease,^'^^ and in a number a special reference is on the covenants of the lease, and ground that if one party to a con- while the tenant should be required tract refuses to perform, the other to comply with such covenants, as party may rescind the contract by paying taxes, insurance and the The decision is opposed to the nu- cost of repairs, he has also been re- merous decisions to the effect that quiied to repay outlays made by the there is no right of re-entry upon landlord to make a building on the breach of a covenant by the lessee premises fire proof, in accordance (see ante, § 194 b, note 62), and with the orders of the municipal represents but one of the numer- authorlties, the building belonging ous errors arising from the mis- to the tenant, with an option in the taken view that a lease is a mere landlord to purchase it, and also to contract. See ante, § 16. repay the wages of custodians and 3r,i Arizona Rev. St. 1901, § 2693 the rental value of furniture pro- (When tenant shall violate any pro- cured by the landlord for the build- vision of the lease, landlord may rc- Ing. Bien v. Bixby, 22 Misc. 126, 48 enter, and may, without formal de- N. Y. Supp. 810. mand or entry, commence proceed- 347 Collender v. Smith, 20 Misc. ing for possession) ; California Code 612, 45 N. Y. Supp. 1130. Civ. Proc. § 1161 (Unlav.-ful detain- er Dakota Hot Springs Co. v. er when tenant continues in posses- Young. 9 S. D. 577, 70 N. W. 842. sion after a neglect to perform any 349 Bateman v. Superior Ct. of condition or covenant, other than San Francisco, 139 Cal. 140, 72 Pac. that for rent, including any cove- 922. nant not to assign or sublet, and 850 Bauer v. Knoble, 51 Minn. 358, three days' notice to quit); Colo- 53 N. W. 805. And see ante, at note rado. Mills' Ann. St. 1891, § 1973 235. But in Buckner v. Warren, 41 (substantially same as California); Ark. 532, 4S Am. Rep. 46, it is de- Idaho Code Civ. Proc. § 3976 (s-.me cided that the breach by the lessee as California) ; Illinois, Hurd's Rev. of his covenant authorizes the les- St. 1905, c. 80, § 9 (When default is Bcr to resume possession, on the made in any of the terms of the §274 BREACH OF STIPULATION. 1773 made to an assignment or sublease by the tenant in violation of his agreement, as being ground for the proeeeding.^^^ In one state the tenant's failure to pay taxes or assessments in accordance with his stipulation is made ground for the proceed- ing.353 That the landlord is, by the express terms of the lease, given a right to re-enter upon a default, does not, it seems clear, affect his right to proceed under the statutory provision.^^* In some states there are provisions authorizing the proceeding against a tenant holding over "contrary to" the terms or condi- tions of his lease.^^^ What may be the meaning of such a provi- lease and after ten days' notice) ; Utah Comp. Laws 1907, § 3575 (If tenant continues in possession after neglect to perform any condition or covenant of the lease and after five days' notice to perform) ; Washing- ton, Ball. Ann. Codes & St. § 5527 (4) (substantially same as Utah). 352 California Code Civ. Proc. § 1161 (See Bernero v. Allen, 68 Cal. 505, 9 Pac. 429) ; Colorado, Mills' Ann. St. 1891, § 1973; Idaho Code Civ. Proc. § 3976; Utah Comp. Laws 1907, § 3375 (4); Wasiiington, Ball. Ann. Codes & St. § 5527 (4). 353 New York Code Civ. Proc. § 2231 (3) (If tenant in a city, having agreed to pay taxes or assessments, fails to do so for sixty days after they become payable, and after three days* notice in writing to pay thom or deliver up possession). In Bix- by v. Casino Co., 14 Misc. 346, 35 N. Y. Supp. 677, it was decided by two judges that an express provision in the lease that summary proceedings should lie in case of nonpayment of rent raised an inference of an agree- ment that they should not lie, under this clause of the statute, for non- payment of taxes. There is no right of redemption in case of nonpayment of taxes, un- der the New York statute, as there is in case oi nonpayment of rent, and consequently if, when a proceed- ing is instituted for nonpayment both of rent and taxes, the taxes are paid pending the proceeding, it is prejudicial error to make an order awarding possession by reason of the nonpayment of taxes as well as of rent, and the tenant can de- mand a modification thereof. Pea- body V. Long Acre Square Bldg. Co., 188 N. Y. 103, 80 N. E. 657. 354 Fleishauer v. Bell, 44 Misc. 240, 88 N. Y. Supp. 922; Crosby v. Jarvis, 46 Misc. 436, 92 N. Y. Supp. 229. 355 Iowa Code 1897, § 4208 (Tenant holding over contrary to the terms of the lease) ; Michigan Comp. Laws 1897, § 11164 (Tenant holding over contrary to the terms and conditions of the lease) ; Minnesota Rev. Laws 1905, § 4038 (same); Nexo Mexico Comp. Laws 1897, § 3345 (Tenant holding over contrary to the terms of his lease) ; Oregon, Bell. & C. Codes, § 5755 (Tenant retaining pos- session contrary to any condition or covenant of the lease) ; Wisconsin Rev. St. 1898, § 3358 (Tenant hold- ing over contrary to any condition or covenant, and after three days' no- tice to quit). 1774 SUMMARY PROCEEDINGS. § 274 sion it is difTiciilt to say. In Michijjan it was docided to apply only when there are "conditions or covenants which are in tho nature of limitations, by which, upon the happening of the contin- gency, the estate becomes ipso facto terminated. "^''O And there is a later decision in that state that when there was a covenant against assignment, Avith an express condition of re-entry for breach of any covenant, an assignment brought the case within the statute.35^ In Minnesota it is said that, to be within the stat- ute, "the holding over must be after a determination of the lease by a forfeiture or in pursuance of a proviso in the lease giving a right of re-entry. "358 j^ somewhat similar provision, authorizing the proceeding when the lease "shall terminate by lapse of time or by reason of any express stipulation," has been construed not to authorize the proceeding upon a breach of a mere covenant.'*'^^ In another state, however, a statute authorizing the proceeding against a tenant holding "without right after breach of a stipula- tion contained in the lease" appears to have been applied when there was merely a breach of a covenant to pay rent.'''"^ Any provision of the statute as to demand or notice as a pre- requisite to a proceeding to recover posses.'sion for failure to comply with a covenant must obviously be complied with.'^ci A statute providing that a notice requiring the tenant either to per- form the covenant or relinquish possession shall be given, but that notice need not be given if the covenant broken cannot after- wards be performed, has been held not to render a notice neces- sary when the breach is of a covenant not to sublet,382 or, appar- ently, of a covenant to pay taxes.^^s But the clause of the statute dispensing with notice to perform in such case docs not dispense with the necessity of a notice demanding possession as a prereq- uisite to the maintenance of the proceeding.'^64 When the stat- 356Langley v. Ross, 55 Mich. 163, trary to Hadley v. Havens, 24 Vt. 20 N. W. 886. 520. S57 Marvin v. Hartz, 130 Mich. 26, 3oi See Opera House v. Bert, 52 89 N. W. 557. Cal. 471; Iroquoig Realty Co. v. Iro- 358 Bauer v. Knoble, 51 Minn. 358, quois Hotel & Apartment Co., 104 53 N. W. 805. N. Y. Supp. 748. SB9 Lang V. Young, 34 Conn. 526. 382 Harloe v. Lanibie, 132 Cal. 133. seoHoran v. Thomas, 00 Vt. 325, 64 Pac. 88. 13 Atl. 567. rhe opinion does not ^os Kelly v. Teague, 63 Cal. 68. discuss the meaning of the statute, 3fi4 Schnittger v. Rose, 139 Cal. and the decision appears to be con- 656, 73 Pac. 449. §275 STATUTES OF LIMITATION. 1775 ute thus provides for a notice requiring the tenant, in the alterna- tive, either to perform the covenant or to relinquish possession, the notice must recite the breach of stipulation relied on with sufficient particularity to enable the defendant to correct his de- fault .3 65 Even though a breach is waived by the acceptance of rent sub- sequently accruing, the proceeding will lie upon a subsequent breach.-"^66 f. Assignment or subletting. In two stntcs it is provided, without reference to whether there is a stipulation in the lease against assignment or subletting, that if a tenant for a term less than a period named, or at will, or at sufferance, makes an as- signment or sublease, a proceeding to recover possession may be maintained by the landlord.^^? g. Bankruptcy. In one state it is provided that the landlord' may recover possession as against his tenant for a term of three years or less if the latter takes the benefit of the insolvent laws or is adjudicated a bankrupt.^^s § 275. Statutes of limitation. There are, in some jurisdictions, statutes of limitation expressly applicable to proceedings against a tenant holding over or to proceedings for unlawful detainer. It is sometimes provided that the proceeding must be instituted within a specified time after the accrual of the cause of action,-''^^ and sometimes, within a 365Byrkett v. Gardner, 35 Wash. E. 67; Dickenson v. Petrie, 38 111. 668, 77 Pac. 1048. App. 155. It has been held that when th§ ^eo jones v. Durrer, 96 Cal. 95, 30 statute authorized a proceeding to Pac. 1027. . oc,-^^ „T^«r, c ^o'^ciit in ^^T Kentucky St. 1903, § 2292; Mis- recover possession upon a deiauit in » . ^ . ^ .^ * o ^f tv,^ lo^co nnnn ^ouri Rev. St. 1899, § 4108. any of the terms of the lease upon ^ ... * -^ -.>,„„* sfisNew York Code Civ. Proc. § a ten days' notice to quit, without "any other notice or demand of pos- \^ j^^,^^ ^^^^ ,^9,^ ^ ^217 (Thirty session." the proceeding might be ^^^^, peaceable possession with maintained upon a default in rent, j^^owledge of plaintiff) ; Kansas without any demand of rent, though ^^j^ g^ ^9^5^ g 4gg3 ^^^ ^^^^ another provision authorized a pro- years); Ohio Rev. St. 1906, § 6599 ceeding on a default in rent pro- (Two years); Oklahoma Rev. St. vided there was a previous demand. 1903, § 4214 (Two years) ; West Vir- Woods V. Soucy, 166 111. 407, 47 N. ginia Code 1906, § 2162 (Two years). 1776 SUMMARY PROCEEDINGS. § 275 specified time after tlie unlawful dctainer,37o or after the com- menceraent of the unlawful detainer.^^i In at least one state a certain period after the termination of the tenant's estate is named.3'^2 It has apparently been decided that the fact that a statute re- quires an action for the forcible detention of real property to be begun within a specified time after the accrual of the cause of action does not prevent a proceeding on account of the nonpay- ment of rent which has been due for that length of time.^^^ It has been decided that, where the statute provides that the proceeding shall be barred by "thirty days' peaceable and unin- terrupted possession, with the knowledge of the plaintiff, after the cause of action accrued," the service of the statutory notice to quit within the thirty days is not sufficient to preserve the right of action, but the proceeding itself must be commenced Mdthin the time named; and it was also decided that "the knowl- edge of the plaintiff" referred to in the statute is the knowledge by the plaintiff of the defendant's possession, and not of the fact that a cause of action to terminate possession has accrued.^"' In one state the statute provides that an uninterrupted posses- sion for three years immediately previous to suit shall bar the pro- ceeding "if the defendant's estate has not terminated within that time,"3'^5 and this proviso, it seems, in effect gives the landlord three years after the termination of the defendant's estate in which to institute the proceeding. In another state there is, in the chapter of the statutes which treats of forcible entry and de- tainer, a similar clause providing that three years' peaceable and uninterrupted possession immediately previous to suit shall be a bar, omitting, however, any proviso that the defendant's estate shall not have terminated within that time.^'^ Such a pro- vision, applied to the case of a tenant wrongfully holding over, 370 Florida Gen. St. 1906, § 2155 373 Maran v. Maran, 54 Kan. 270, (semble); Kentucfcy Civ. Code 38 Pac. 268; Donahoe v. Mitchem, 13 Prac. 1895, § 469; Virginia Code Okl. 383, 74 Pac. 903. 1904, § 2716. ^''■^ Heiple v. Reinhart, 100 Iowa, 371 Arizona Rev. St. 1901, § 2961. 525, 69 N. W. 871. 372 Minnesota Rev. Laws 1905, § 375 Tennessee, Shannon's Code A039 (Proceeding barred by three 1896, § 5096. years' quiet possession after end of ^70 Arkansas, Kirby's Dig. St. 1904, leasehold estate). § 3649. § 276 EQUITABLE DEFENSES. 1777 would prechule a summary proceeding against him if the orig- inal lease was for three years or over, or if the term had been extended so as to make the total period of permissive possession cover such a period.^'^'^ JRecognizing the absurdity of such a re- sult, it was held that the provision, in its literal construction, was intended to apply only to cases of forcible dispossession, and not to the case of one who entered under a lease, but that in his case the period named should be computed from the termination of the lease.^'^'s Occasionally the statute provides that uninterrupted posses- sion for a time named immediately preceding suit shall be a bar unless the defendant's estate is terminated.^'^^ The reference to the termination of the defendant's estate is perhaps to be construed as equivalent to the words "unless the defendant's estate has been terminated within that time," and such a con- struction seems to have been placed thereon in one state.^^° In one state it was held that a statute, thus making three years' possession a bar unless the defendant's estate was terminated, pre- cluded a summary proceeding to recover possession for nonpay- ment of rent, if the defendant had already been in occupation un- der the lease for three years.^^^ In the absence of any statutory provision bearing on the subject, the proceeding is, it has been decided, maintainable so long as the tenant remains in possession,^^^ provided he has not, ])y reason of a repudiation of the tenancy and lapse of time, acquired ab- solute title.383 § 276. Equitable defenses. Equitable defenses cannot ordinarily be asserted in a proceed- 377 An enactment in this language, assumed without discussion that formerly in force in Maine, was ap- such is the meaning of the statute, parently so construed. Morton v. 3.si Brown v. Brackett, 26 Minn. Thompson. 13 Me. 162. 292, 3 N. W. 705. This provision was 37S Burke v. Hale, 9 Ark. 328. subsequently repealed. See Suchan- And see Mason v. Bascom, 42 Ky. (3 eck v. Smith, 45 Minn. 26, 47 N. W. B. Mon. 269), 38 Am. Dec. 186. 397; Alworth v. Gordon, 81 Minn. 579 Alabama Code 1907, § 4272; 445, 84 N. W. 454. Massachusetts Rev. Laws 1902, c. 3S2 Willis v. Harrell, 118 Ga. 906, 181, § 10. 45 S. E. 794. 3S0 Cunningham v. Davis, 175 3S3 See ante, § 4. Mass. 213. 56 N. E. 2. There it is L. and Ten. 112. 1778 SUMMARY PROCEEDINGS. §277 ing of this character, for the reason that such a proceeding is legal in its nature, and also, frequently, because the court, being one of inferior jurisdiction, cannot take cognizance of such de- fenses.384 But in some states, by reason of legislation allowing equitable defenses in proceedings at law, or otherwise, such a defense is available in a summary proceeding.^ss § 277. Title to premises. As before stated, the doctrine that a tenant is precluded from denying his landlord's title applies in the case of a summary pro- ceeding to recover possession to the same extent as in an action of ejectmont,^*^ and accordingly the petitioner need not show that there is no title outstanding paramount to his title, nor can the tenant assert the existence of such a paramount title.^®'^ This 884 Brockway v. Thomas, 3G Ark. 518; Petsch v. Biggs, 31 Minn. 392. 18 N. W. 101; Norton v. Becknian, 53 Minn. 456, 55 N. W. 603; Orr v. McCnrdy, 34 Mo. App. 418; Garrie v. Schmidt. 25 Misc. 753, 55 N. Y. Siipp. 703; Merki v. Merki, 113 111. App. 518; Id., 212 111. 121, 72 N. E. 9; Cot- trell V. Moran, 138 Mich. 410, 101 N. W. 561; Phillips v. Port Townsend Lodge, 8 Wash. 529, 36 Pac. 476; Bond V. Chapman, 34 Wash. 606, 76 Pac. 97. 385 Simon Newman Co. v. Lassing, 141 Cal. 174, 74 Pac. 761; Ogle v. Hubbel, 1 Cal. App. 357, 82 Pac. 217; Gray v. ]\Iaier & Zobelein Brew. Co., 2 Cal. App. 653, 84 Pac. 280; Fergu- son V. Jackson, 180 Mass. 557, 62 N. E. 965: Forsythe v. Bullock, 74 N. C. 135; Kahn v. Guilford, 87 N. C. 172; Appeal of Pittsburgh & A. Drove Yard Co., 123 Pa. 250, 16 Atl. 625. In Massachusetts and Pennsylvania a covenant to renew may be asserted by the tenant. Ferguson v. Jackson, ISO Mass. 557, 62 N. E. 965; Appeal of Pittsburgh & A. Drove Yard Co., 123 Pa. 250, 16 Atl. 625. And a like view has been asserted in Maryland. Gelston v. Sigmund, 27 Md. 334. Contra, Piatt v. Cutler, 75 Conn. 183, 52 Atl. 819. In New York the statute (Law3 1893, c. 705) authorizes the tenant to plead any defense, legal or equit- able. This does not authorize af- firmative relief, however. Rodgers V. Earle, 5 Misc. 164, 24 N. Y. Supp. 913. In spite of this statute, it has been there decided that the tenant cannot assert a contract for a re- newal lease as a defense. Salomon V. Weisberg, 29 Misc. 650, 61 N. Y. Supp. 60. 38G See ante, § 78 c (2). 387 Bostwick V. Mahoney, 73 Cal. 238. 14 Pac. 832; Felton v. Millard, 81 Cal. 540, 21 Pac. 533, 22 Fac. 750; Fiske V. Bigelow, 9 D. C. (2 MacAr- thur) 427; Slaughter v. Crouch, 23 Ky. Law Rep. 1214, 64 S. W. 968; Coburn v. Palmer, 62 Mass. (8 Cush.) 124; Patrick v. Cobb, 122 Ga. 80, 49 S. E. 806: Newman v. Mackin, 21 Miss. (13 Smedes & M.) 383: Sil- vey V. Summer, 61 Mo. 253; Logan v. Woolwine, 56 Mo. App. 453; Thorn- § 277 TITLE TO PREMISES. I779 doctrine, however, does not preclude the defendant in a summary proceeding, any more than in any other action based on the re- lation of tenancy ,388 from showing that the complainant or peti- tioner is not in fact his landlord, for the reason that the reversion iias never been transferred to him by the original lessor,^^^ or that it has been transferred to some other person,39o or even to the defendant himself, 391 and the tenant is at liberty to show in defence an actual or constructive eviction by paramount title.392 Occasionally the statute in regard to summary proceedings provides that the merits of the title shall not be inquired into in such a proceeding.393 Since the tenant is precluded from dike V. Norris, 24 N. H. 454, 57 Am. 3oo pentz v. Kuester, 41 Mo. 447; Dec. 294; Heyer v. Beatty, 76 N. C. Logan v. Woolwine, 56 Mo. App. 453; 28; Shy v. Brockhause, 7 Okl. 35, 54 Koontz v. Hammond, 62 Pa. 177; Pac. 306; Heritage v. Wilfong, 58 Pa. Smith v. Crosland, 106 Pa. 413. 137; "Williams v. Wait, 2 S. D. 210, ■''!'i Higgins v. Turner, 61 Mo. 249; 49 N. W. 209, 39 Am. St. Rep. 768; Silvey v. Summer, 61 Mo. 253; Cam- Junemau v. Franklin, 67 Tex. 411, 3 ley v. Stanfield, 10 Tex. 546, 60 Am. S. W. 562; Hall & Paulson Furniture Dec. 219. But in Voss v. King, 38 W. Co. V. Wilbur, 4 Wash. 644, 30 Pac. Va. 607, 18 S. E. 762, it was held that 665. the fact that the premises had been. In Connecticut the statute (Gen. since the lease, forfeited to the state St. 1902, § 1081) authorizes the de- for taxes, was no defense to a pro- fendant in such proceeding to show ceeding by the lessor, that he has obtained title to the 302 wheelock v. Warschauer, 34 premises after the date of the lease, Cal. 265; Steinback v. Krone, 36 Cal. and this has been held to authorize 303; Hinckley v. Guyon, 172 Mass. him to show that he holds under a 412, 52 N. E. 523, 70 Am. St. Rep. 292. lease so obtained from the holder of See Elms v. Randall, 32 Ky. (2 a paramount title. Rodgers v. Pal- Dana) 100. But not, it has been mer, 33 Conn. 155. suggested, if the eviction is subse- It was decided in one state that a quent to the commencement of the judgment in favor of the plaintiff for proceeding. Coburn v. Palmer, 62 the recovery of possession of the Mass. (8 Cush.) 124. And see land was not authorized, when the Blish v. Harlow, 81 Mass. (15 Gray) lease was in terms merely of "his 316. Compare Pugh v. Davis, 103 interest" therein, and what that in- Ala. 316, 18 So. 8, 49 Am. St. Rep. terest was did not appear. Chandler 30, post, note 394. V. Kent, 8 Minn. 524 (Gil. 467). ^os Alabama Code 1907, § 4271; 388 See ante, § 78 n, 0. Missouri Rev. St. 1899, § 3348; Nem 389 Goldsmith v. Smith, 3 Phila. Jersey, 2 Gen. St. p. 1599, § 23; Ore- (Pa.) 360, 16 Leg. Int. 93; Lehnen v. gon. Bell. & C. Codes. § 57P0; Tcn- Dickson, 148 U. S. 71, 37 Law. Ed. nessee, Shannon's Code 1896, § 5103. 373. 1780 .'SUMMARY PROCEEDINGS. § 277 denying his landlord's title, no question could, even apart from such a provision, arise as to the merits of the title of the leissor at the time of the lease, that is, as to whether there is any out- standing title paramount to that title. But since this rule of preclusion does not prevent the defendant from showing that the complainant or petitioner is not his landlord, for the reason that he has not succeeded to the interest of the lessor, or that it has passed from him to another, the question arises whether he is so precluded by reason of a statutory provision of the character referred to, that is, whether a prohibition of an inquiry into the merits of the title prohibits an incjuiry as to whether the com- plainant in the proceeding has become or still is the owner of the reversion, so as to be entitled to maintain the proceeding. There are occasional decisions to the effect that the tenant is, by such a provision, precluded, in a proceeding by the lessor, from show- ing that the latter 's title has passed to another.^^-* In one case it is said that "if the defendant cannot, without enquiry into the estate and title of the premises, protect himself, he must sub- mit and seek his rights in another forum; "^^s but in another case it is decided that he cannot protect himself from a double liability to the lessor and the lessor's transferee even by going into equity .^''^ The provision in question may, it seems possible, New Hampshire Pub. St. 1901, c. cover possession and damages against 246, § 12, provides that the defendant him as a holdin.c^-over tenant. At may bring the title in issue only on the time of this decision, the Ala- giving bond to pay all rent, damages bama statute provided that "the mer- and costs. See Thorndike v. Norris, its of the title cannot be inquired in- 24 N. H. 454, 57 Am. Dec. 294. to on the trial of any complaint ex- 39* Allen v. Smith, 12 N. J. hibited under this chapter." Subse- Law (7 Halst.) 199; Kellum v. quently, and in consequence of this Balkum, 93 Ala. .317, 9 So. 463; How- decision, there were added the ard V. Jones, 123 Ala. 488, 26 So. words: "But all legal and equitable 129. To that effect is the language defenses may be had against a re- of the opinion in Pugh v. Davis, 103 covery for damages or for the un- Ala. 316, 18 So. 8, 49 Am. St. Rep. lawful detention of the land." There 30, read in connection with that in appears to be some inconsistency be- Davis v. Pou. 108 Ala. 443, 19 So. 362 tween the language of the statute (post, note 396). There it was de- as it formerly existed and that add- cided that, though the tenant had at- ed thereto. torned and paid rent, upon demand, sos Alien v. Smith, 12 N. J. Law to a purchaser at foreclosure sale un- (7 Halst.) 199. der a mortgage made by the lessor ••s'^n in D^vis v. Pou, 108 Ala. 443, before the lease, the lessor could re- 19 So. 362 (ante, note 394), the court § 277 TITLE TO PREMISES. 1781 have been introduced into the statutes with particular reference to the proceeding for forcible entry against a stranger, there pro- vided for, and without consideration of its possible effect as against a tenant under a lease. If such a provision is to be con- strued as precluding the defendant from showing that the com- plainant is not entitled to maintain the proceeding because he has disposed of the reversion to another, it should, it seems, pre- clude him from showing that the reversion has never been trans- ferred to the complainant, that the latter is, in fact, an entire stranger, who neither has, nor ever has had, any interest in the premises. In both cases there is an inquiry into title, for the pur- pose of showing whether the complainant is the landlord or person entitled to possession, so as to come within the terms of the stat- ute. It might be suggested, moreover, that if the tenant cannot show that the complainant is, by reason of the making of a transfer by him, not entitled to maintain the proceeding, the complainant should also be precluded from showing that, by reason of a trans- fer to him, he is entitled to maintain it. But that the complainant is not ordinarily so precluded would seem to be involved in the decisions before referred to,396a recognizing the right of the trans- feree of the reversion to maintain the proceedings.^^^'^ In one state at lea^t, where such a statutory provision exists, the tenant is allowed to shoAV that the person instituting the pro- ceeding, although the original lessor, has transferred the rever- sion to another, and hence has no right to maintain the proceed- JQg 397 refused to enjoin the proceeding by In Patterson v. Folmar, 125 Ala. the original lessor on the ground that 130, 28 So. 450, it was decided that the lessee had no remedy at law by evidence that defendant was in pos- which to avoid liability to both the session under a contract of sale, original lessor and the person claim- which provided that in case of de- ing under the mortgage. In How- fault the relation of tenancy should ard V. Jones, 123 Ala. 488, 26 So. arise and that defendant should then 129, it was held that the statutory be liable for rent to a certain provision precluded the defendant amount, did not involve an inquiry from showing that he had purchased into title, but only tended to show the property under a mortgage. The the relation of tenancy, mortgage appears to have been prior soea See ante, note 97. See, also, to the lease, and so constituted a post, at note 423. paramount title in the tenant, which 396b Compare Watson v. Idler, 54 he could not aspert, even apart from N. J. Law, 467. 24 Atl. 554. statute, until evicted thereunder. 897 Pentz v. Kuester, 41 Mo. 447; 1782 SUMMARY PROCEEDINGS. §l77 The statutes of many states, while conferring the primary juris- diction to try proceedings of this character upon justices of the peace, provide that justices shall have no power to try questions of title to land, and accordingly a question arises in connection with such provisions, similar to that just discussed in connection with provisions of like character expressly applying to summary proceedings. The jurisdiction of the justice cannot, in a landlord and tenant proceeding, be ousted by the tenant's denial of the title of the lessor at the time of the lease, since he is precluded from making snch denial,^^^ but the more difficult question is whether it is ousted by his denial that the complainant is the owner of the reversion and so entitled to the land, in other words, that he is the landlord. In at least one state it has been decided that he can deny the plaintifT's title to the reversion,^^'' it being said that the jurisdiction to determine whether a particular in- strument operated to transfer the reversion was the same as that Gunn V. Sinclair, 52 Mo. 327; Hig- that if the tenant shall allege that gins V. Turner, 61 Mo. 249. See the title Is disputed or claimed by Lehnen v. Dickson, 148 U. S. 71, 37 some person named, by virtue of a Law. Ed. 373. right or title accruing since the 308 See Heritage v. Wilfong, 58 Pa. lease, by descent, deed or devise from 137. and ante, at note 387. But see or by the lessor, and the person so Forsythe v. Bullock, 74 N. C. 135; named shall appear and make oath Hahn v. Guilford, 87 N. C. 172, and that he believes himself to be en- ante, § 78 i (2), at notes 350-352, as titled and gives bond to prosecute to the North Carolina rule that the his claim with effect, the justice tenant may attack the landlord's shall forbear to give judgment for title by showing an equitable title restitution and costs. This may pcr- In himself. haps involve an implication that, 3f'9 Savage v. Carney, 8 Wis. 162; apart from statute, the tenant could Jarvis v. Hamilton, 16 Wis. 575; not assert, for the purpose of ex- Menorainee River Lumber Co. v. eluding the jurisdiction of the jus- Philbrook, 78 Wis. 142, 47 N. W. 188. tice, that the lessor's title has pass- Bergman V. Roberts, 61 Pa. 497, is cd to another than the plaintiff in to this effect. And see Smith v. the proceeding. See, as to the eon- Crosiand, 106 Pa. 413. But Clark v. struction of these provisions, Mous- Everly. 8 Watts & S. (Pa.) 226, ley v. Wilson, 1 Md. Ch. 388; Nev^ell seems contra. v. Gibbs, 1 Watts & S. (Pa.) 496; In Maryland (Code Pub. Gen. Laws De Coursey v. Guarantee Trust & 1904. art. 53. § 5) and Pennsylvania Deposit Co.. 81 i*a. 217; Clark v. (Pepper & Lewis' Dig. Laws, "Land- Everly, 8 Watts & S. (Pa.) 226; Es- lord & Tenant." § 26), there are sler v. Johnson, 25 Pa. 350. statutory provisions to the effect § 277 TITLE TO PREMISES. 1783 to determine whether the instrument under which the defendant had entered was a lease, creating the relation of landlord and tenant,^*^*^ a most reasonable view, it is submitted. In other jurisdictions it has been held that a statute, in terms excluding from the justice's jurisdiction only "actions" involving title, does not apply to summary proceedings.'^"^ There is, on the othei' hand, at least one decision to the effect that a general statute excluding the jurisdiction of a justice in questions of title neces- sarily precludes him from determining whether the plaintiff lessor is, as still having the reversion, entitled to recover posses- sion from the defendant tenant,^"- and this view would seem to accord with occasional decisions that in an action for rent the justice cannot try the question whether the plaintiff is owner of the reversion and so entitled to the rent.^^^ A plea of title in fee, by one against whom a proceeding is instituted as holding under a lease, involves, it seems, merely a denial that he holds under a lease, so to authorize the proceed- ing, and hence is not sulTieient to exclude the jurisdiction of the justiee.^"^ If the plea were regarded as equivalent to an aver- ment that he has a title paramount to that of the landlord, it would be defective, since he cannot make such an assertion.^"^'' The only other mode in which such a plea could be regarded would be to view it as an averment that the lessor's title has passed since the lease to the defendant, in which case the validity of the plea would involve the question, above referred to, of the jurisdiction of the justice to determine whether the plaintiff is the owner of the reversion, and so entitled to maintain the pro- 400 winterfield v. Stauss, 24 Wis. could not try the case. Whether the 394. third person had :i paramount title, 401 State V. Fickling, 10 S. C. 301; or had acquired the lessor's title, State V. Marshall, 24 S. C. 507; In does not appear. Compare Mis- re White, 12 Abb. N. C. (N. Y.) 348: souri cases ante, note 397. People V. Goldfogle, 23 N. Y. Civ. 403 gee Messier v. Fleming, 41 N. J. Proc. 417, 30 N. Y. Supp. 296. Law, 108; Smith v. Harris, 3 Blackf. 402 White V. Bailey, 14 Conn. 271; (Ind.) 416; Main v. Cooper, 25 N. Y. Meier v. Thieman, 90 Mo. 433, 2 S. 180. W. 435, may be to this effect, it be- 404 gee Menominee River Lumber ing stated that since the defendant Co. v. Philbrook, 78 Wis. 142, 47 N. claimed to be the tenant of, and to W. 188. Compare Foster v. Penry, have paid rent to, a third person. 77 N. C. 150. title was in issue and the justice 405 gee ante, at note 387. 1784 SUMMARY PROCEEDINGS. § 278 ceeding. A general plea of title in the defendant, who is al- leged in the complaint to have entered under a lease, should, it seems, be construed most strongly against him, as attempting to assert a paramount title without denying the tenancy .•*'^'^* The fact that the plaintiff avers in his complaint that he is the owner, and that the defendant denies such assertion, does not raise a question of title, so as to exclude the justice's jurisdiction, since such averment is unnecessary and is to be regarded as surplus- agg^406 jior does the fact that the defendant avers an extension of his lease involve a question of title.^*'''' In some states the statute in regard to summary proceedings provides that if it shall appear from the pleadings or otherwise that a question of title is at issue, the case shall be removed from the justice to a higher court.^o^ ^j^^ jq some there are general provisions to that effect applicable to all proceedings instituted before a justice. In some states the statutes merely provide for a dismissal by the justice of any action in which a question of title appears to be involved. § 278. Complaint, petition or aflSdavit. a. General considerations. The statutes of some states pro- vide for the filing by the landlord of a complaint or petition in 40Ba See Heritage v. Wilfong, 58 preme court if defendant pleads title Pa. 137. in himself or another under whom 406 Chicago, M. & St. P. R. Co. v. he claims, stating nature of the title, Nield, 16 S. D. 370, 92 N. W. 1069. under oath, and enters into under- 407 Jtidd V. Arnold, 31 Minn. 430, taking to pay intervening damages, 18 N. W. 151. See De Coursey v. costs and rent); Iowa Code 1897, §§ Guarantee Trust & Safe Deposit Co., 4216, 4505 (Case to be removed to 81 Pa. 217. district court if title put in issue by 408 AZaftama Code 1907, § 4283 (De- verified pleading). See Jordan v. fendant in suit for forcible entry or Walker, 52 Iowa, 647, 3 N. W. 679; forcibie detainer may remove to cir- Id., 56 Iowa, 686, 10 N. W. 232. Mas- cuit court by making affidavit that sachvsetts Rev. Laws 1902, c. 161, § he entered peaceably, under claim of 19, c. 181, §§ 6, 8 (If title to land ap- title, and not under a contract with pears, from pleadings or otherwise, plaintiff or one under whom he to be drawn in question, case to be claims, and that petitioner bona fide removed, provided defendant gives desires to contest with plaintiff the bond to enter case in superior court title); District of Columtia Code and pay rent, damages, and costs). 1902, §§ 23, 1225 (Removal to su- § 278 COMPLAINT, PETITION OR AFFIDAVIT. 1785 writing/09 ^ verification thereof being required in some states.^^o In other states it is provided that a summons shall be issued on the making of an affidavit,'*^ ^ and in some, upon a merely verbal ap- plication therefor.'*^^ There are a number of decisions as to the sufficiency of the complaint or affidavit in the particular case to support a judgment of dispossession.413 tj^^ statute ordinarily provides that it shall state the facts which show the complainant or affiant to be en- titled to the benefit of the statute, and when the statute so pro- vides averments of mere conclusions are insufficient.'*^^ It has *09 California Code Civ. Proc. § 1166; Idaho Code Civ. Proc. § 3983; Illinois, Kurd's Rev. St. 1905, c. 57, § 5; Maryland Code Pub. Gen. Laws 1904, art. 53, § 1; Minnesota Rev. Laws 1905, § 4040; Nebraska Comp. St. 1905, § 7528; Nevada Comp. Laws 1900, § 3841; Ohio Rev. St. 1906, § 6603; Oklahoma Rev. St. 1903, § 5090; Wisconsin Rev. St. 1898, § 3362. And see statutes cited in the note next following. 410 District of Columbia Code 1901, § 20; Florida Gen. St. 1906, § 2228; Iowa Code 1897, § 4212; Kansas Gen. St. 1905, § 5844; Michigan Comp. Laws 1897, § 11165; Missouri Rev. St. 1899, § 4131; Montana Rev. Codes 1907, § 7276; New Mexico Comp. Laws 1807, § 3348; New York Code Civ. Proc. § 2235; Pennsylvania, Pepper & Lewis' Dig. Laws, "Land- lord & Tenant," § 34; South Dakota, Justices' Code, § 47; Texas Rev. St. 1895, art. 2523; Utah Comp. Laws 1907, § 3580; Washington, Ball. Ann. Codes & St. § 5532. 411 See Georgia Code 1895, § 4813: Mississippi Code 1906, § 2886; New Jersey, 2 Gen. St. p. 1918, § 12 (Oath in writing) : North Carolina Revisal 1905, § 2002 (Oath in writing). In Cardin v. Standly. 20 Ga. 105, it is decided that the affidavit is not a pleading within the statute as to amendments. 412 Connecticut Gen. St. 1S02, f; (On giving of bond by lessor); Massachusetts Rev. Laws 1902, c. 181, § 2; New Hampshire Pub. St. 1901, c. 246, § 8; Pennsylvania, Pep- per & Lewis' Dig. Laws, "Landlord & Tenant," §§ 25, 28; South Carolina Civ. Code. § 2421; Vermont Pub. St. 1906, § 1870; Virginia Code 1904, § 2716. For the sake of convenience, the paper by the presentation of which the proceeding is instituted will, in the following discussion, be ordi- narily referred to as the "complaint." 413 For forms of complaint which have been held sufficient, see Har- ris V. Barber, 129 U. S. 366, 22 Law. Ed. 697; McNatt v. Grange Hall Ass'n, 2 Ind. App. 341, 27 N. E. 325; Sweeney v. Mines, 31 Mo. 240; Alex- ander V. Westcott, 37 Mo. 108: Brahn V. Jersey City Forge Co., 38 N. J. Law, 74; Irwin v. Davenport, 84 Tex. 512, 19 S. W. 692; Rains v. City of Oshkosh, 14 Wis. 372. The proceed- ing is not "founded" on the lease so that the instrument of lease or a copy thereof must be filed with the complaint. Whipple v. Shewalter, 91 Ind. 114. 414 Fowler v. Roe, 25 N. J. Law, 1786 SUMMARY PROCEEDINGS. §278 been decided, however, that a statutory provision that the com- plaint shall set forth that the person complained of is in posses sion of the premises, and holds them unlawfully and against the right of the complainant, is satisfied if the complaint is couched in the general language of the statute, without stating the facts of the particular case.-'is The statement of the facts must be clear and unambiguous, and it is insufficient if they are so stated that the language is open to either of two constructions.'* i« That the complaint seeks to recover rent does not render it in- sufficient, it has been decided, even though such recovery is not authorized in such a proceeding.^iT if th^ complaint fails to state circumstances Avhich bring the case within the statutory pro- vision, the court has no jurisdiction of the proceeding.^is b. Showing as to tenancy. It is stated in a number of cases that the complaint or affidavit must show that the relation of landlord and tenant exists between the person who is seeking to maintain the proceeding, or in behalf of whom this is sought, and the defendant in the proceeding.^^^ Occasionally, however. 549; Shepherd v. Sliker, 31 N. J. Law, 432; State v. Lane. 51 N. J. Law, 504, 18 Atl. 353; People v. Mat- thews, 38 N. Y. 451; Fry v. Day, 97 Ind. 348; Conley v. Conley, 78 Wis. 665, 47 N. W. 950. But if the facts are stated, the statement of a conclu- sion based thereon does not invali- date the affidavit. Steffens v. Earl, 40 N. J. Law, 128, 29 Am. Rep. 210. 415 Bryan v. Smith, 10 Mich. 229; Bennett v. Robinson, 27 Mich. 26; Blackford v. Frenzer, 44 Neb. 829, 62 N. W. 1101. But it was held that if the complainant undertook to aver any particular facts, he must aver all which could be regarded as in- cluded in the general averments named In the statute. Bryan v. Smith, 10 Mich. 229. 410 People V. Matthews, 38 N. Y. 451. 417 Sullivan v. Lueck, 105 Mo. App. 199. 79 S. W. 724. See Ellis v. Fitz- patrick, 55 C. C. A. 260, li8 Fed. 430. 418 Conley v. Conley, 78 Wis. 665, 47 N. W. 950; Sperry v. Seidel, 218 Pa. 16, 66 Atl. 853; Eveleth v. GUI, 97 Me. 315, 54 Atl. 756; Cleary v. Waldron (N. J. Law) 54 Atl. 565. 419 Smith V. Killeck, 10 111. (5 Gilm.) 293; Dunne v. School Trus- tees, 39 111. 578; Powers v. Suther- land, 62 Ky. (1 Duv.) 151; Taylor V. Monohan, 71 Ky. (8 Bush) 238: Bowles V. Dean, 84 Miss. 376, 36 So. 391; Woodman v. Ranger, 30 Me. 180, 50 Am. Dec. 625; Eveleth v. Gill, 97 Me. 315, 54 Atl. 756; Gray v. Reynolds, 67 N. J. Law, 169, 50 Atl. 670; State v. Staiger, 52 N. J. Law, 350, 19 Atl. 387; People v. Simpson. 28 N. Y. 55; Earle v. McGoldrick, 15 Misc. 135, 36 N. Y. Supp. 803; Cohen v. Brossevitch, 33 Misc. 600, 67 N. Y. Supp. 1025; Gulledge v. White, 73 Tex. 498, 11 S. W. 527. In Dunning v. Finson, 46 Me. 546, it is said that the relation need not be shown in the case of a tenancy at will, the 5 278 COMPLAINT, PETITION OR AFFIDAVIT. 1787 under special circumstances, it appears, the P;oceeaing may be maintained though no such relation exists,«o ud, when such special circumstances occur, the complamt or affidavit ned not it is plain, show the relation of landlord and tenant - The requirement as expressed merely means, it seems, th-t the com- plaint must show that the complainant stands m such a relat on lo the defendant as to be entitled to maintam he proceedmg against him. That the relation exists would usually appear from a statement that the complainant had made a lease to the defend- ant"^ If the proceeding is by a person other than the or.gmal lessor, the complaint must show, it has been decided, how ho became entitled to maintain it, that is, how the reversion or the ri"ht of possession passed to him from the lessor. c Interest of petitioner. In the state of New York it is pro^ vided bv statute that the petition shall describe "the interest of the petitioner, or of the person whom he represents in the nremises ""♦ This provision inferentially requires that the peti- tioner shall aver that he, or the person whom he represents, has an interest in the premises, and applies in terms both to a sum^ mary proceeding against a stranger who has forcibly entered,"' ""^rav;"rt^ -aT.St rn-i; '^::z:i:^'^i IcTe an. 'm tlslalry.' 35 Conn. 3»«. it was decide, that an Aaaverment that affiant "leased allegarion that the complamants are .rp_to.a.dSh.t^^^^^^^^ to commence on the fi^^^ o^ May ^^^^^^. .^ ^^^^^^ ^cienuyr; LTxst ncr^Jet lealfto de.en.ant. and then died, ficiently ^tale^ ^^^e concluding by praying ]udg- :::i::re -pr;er,3,wa3h.eo..— 'VLT: Stevens v. Earl. 40 Ihlt where a life tenant ma.es a N ; Law m 29 Am. Rep. 210: lease, the remalnaerm.,n cannot S,.*: Mitchell. 30 Minn. 122, 14 properly he regarded as the owner t^ Of the reversion. There is no priv MseeEvansv.Mulle.25Mo.195: ity between ^^^^l^^^' ^c Binder v. Azzaro, 74 N. J. Law, 328. the life tenant. See ante 69 c. 65 Atl 849; Llovd v. Richman. 57 4^4 Code Civ. Proc. § 2. 3o. N J Law, 385. 30 Atl. 432; HiH v. -^ The statute was applied in con- U88 SUMMARY PROCEEDINGS. § 278 and also to one against a tenant. However de.sirahle it may be that the plaintiff in the former class of proceeding be compelled to state what interest or title he may have, such a requiremi'nt in the case of a proceeding against a tenant is open to the objection that it permits the tenant to .Tefend on the ground of defects in the landlord's title, in violation of the general rule precluding the tenant from asserting such defects.426,427 n j^^s been decided that an averment that the petitioner is the landlord,-'28 or that he "leased" the premises to the defendant,-*^^ or that he was him- self a lessee of the premiseSj-^^^o is not a compliance with the stat- ute. In other cases, however, the petition was decided to be suflficicnt when it alleged that the petitioner entered into an agree- ment with the defendant whereby he let to and the defendant hired the premises, and for the use and occupation thereof prom- ised to pay an annual rental of a sum named,-!^! and also, as averring the interest of the person represented by the petitioner, when it stated that the latter was the agent for persons named "who are the owners and landlords of such premises, "•'^ 2 or for the executor and trustee under a will which authorized the latter to dispose of the decedent's real estate, and that he entered into an agreement with the defendant as tenant.^^s i^ h^q^q latter cases, it is evident, the averment was, in effect, merely of the making of the lease by the person whose right to the possession nection with such a proceeding in ber v. Apfel, 113 App. Div. 720, 99 Fuchs V. Cohen, 29 Abb. N. C. 56, 19 N. Y. Siipp. 215; Matthews v. Car N. Y. Supp. 236; Cahill v. Wyand, man, 122 App. Div. 582, 107 N. Y. 22 Civ. Proc. R. (N. Y.) 271; Potter Supp. 694. V. New York Baptist Mission Soc, 23 420 Matthews v. Carman, 122 App. Misc. 671, 52 N. Y. Supp. 294. In Div. 582, 107 N. Y. Supp. 694. Crane v. Van Derveer, 45 App. Div. 430 Eldaen Realty & Const. Co. v. 139, 60 N. Y. Supp. 1040, it was held Bensamon, 56 Misc. 463, 107 N. Y. that the objection that no such aver- Supp. 128; Ferber v. Apfel, 113 App. ment was made was waived by the Div. 720, 99 N. Y. Supp. 215. action of the defendant in filing a 431 Slater v. Waterson & Law verified answer, procuring a panel of Amusement Co., 58 Misc. 215, 109 N. jurors, and obtaining an adjourn- Y. Supp. 50". ™^^t. ''32 Equitable Life Assur. Soc. v. 426, 427 See ante, § 78 c (2). Schum, 40 Misc. 657, 83 N. Y. Supp. 428 Engel-Heller Co. v. Henry Elias 161. Brew. Co., 37 Misc. 480, 75 N. Y. 433 Rowland v. Dillingham, 83 App. Supp. lOSO; Kazis v. Loft 81 App. Div. 156, 82 N. Y. Supp. 470. Div. 636, SO N. Y. Supp. 1015; Fer- §278 COMPLAINT, PETITION OR AFFIDAVIT. 1789 was asserted. The statement that the petitioner or person rep- resented by him is the landlord, or that he leased the premises to the defendant, is not an averment of the petitioner's interest in the premises, but rather of the defendant's interest therein and of the relation between them, but a strict application of the re- quirement that the petitioner's interest be averred would be at- tended with such very considerable inconvenience as almost to compel the courts to put a forced construction on the language, as they apparently have done in the cases last referred to. It has been decided that if the petition alleges that the title was originally in a person other than the petitioner, and that it was subsequently transferred to him, he cannot show that it was al- ways in him.^34 d. Defendant's possession. The complaint, petition, on affi- davit, must show that the person complained of is in possession of the premises,^^^ which, it would seem, it can hardly fail to do. e. Petitioner's agency for landlord. As before stated, the stat- utes quite frequently provide for the institution of the proceed- ing by the agent or attorney of the person entitled to possession,*38 and this means, it seems, that the complaint or affidavit may be in the name of the agent rather than of the principal.'*^'^ The complaint or affidavit, if made by an agent, must, it has been de- cided, contain a direct averment that he is an agent, a mere de- scription of him as agent being insufficient.^^^ Where the statute required the petition to state the facts authorizing him to make the application, a statement that the petitioner "is an agent of P. B., who is the owner and landlord," and "is duly authorized to commence proceedings to dispossess the tenant," was held to be sufficient.^^^ A statutory provision requiring the petition to be verified in the same way as the complaint in an ordinary action refers, it has 434 McFarland Real Estate Co. v. oe See ante, § 273 1. Gerardi Hotel Co., 202 Mo. 597, 100 437 it is so decided in Johnson T. S. W. 577. Thrower, 117 Ga. 1007, 44 S. B. 846. 435 Hill V. Stocking, 6 Hill (N. Y.) 438 Cunningham v. Goelet, 4 Denio 814, 41 Am. Dec. 748; Rains v. City (N. Y.) 71. Compare Patterson v. of Oshkosh, 14 Wis. 372. For a pe- Graham, 140 111. 531, 30 N. E. 460. tition held to be sufficient in this 439 Bennett v. Budweiser Brew, respect, see Qiiandt v. Smith, 28 Co., 27 Misc. 805, 58 N. Y. Supp. 313. Wash. 664, 69 Pac. 3G9. 1790 SUMMARY PROCEEDINGS. § 278 been decided, to the form of the verification and not to the person verifyinj,', and consequently does not preclude a verification by the agent of a corporation landlord.'**^ f. Desig-nation of subtenants. In one state a statutory require- ment that the petition shall "name or otherwise intelligibly desig- nate the person or persons against whom the special proceeding is instituted, and if there are two or more such persons, and some are undertenants or assigns, specify who are principals or tenants and who are undertenants or assigns," was held to be sufficiently complied with by designating such persons as ''John Doe and Richard Eoe (fictitious names), undertenants. "^•^i g. Description of premises. The complaint or affidavit must describe the premises '^■^^ with such sufficiency as to enable the tenant, and also the officer who may have to carry the judgment into execution, to identify them.^^'' A description of the prem- ises as those on which the defendant resides has ])een regarded as insufficient."*^^ Ordinarily a description similar to that of the lease will be sufficient."*-*^ It has in one state been regarded as necessary that the county be named,-*"*^ and elsewhere it is stated that it must appear that the premises are within the court's juris- diction.-^^T A failure to describe the premises has been regarded as a juris- dictional defect which cannot be cured by the appearance of the defendant. "^^s **o Stuyvesant Real Estate Co. v. Stilwell, 67 N. J. Law, 96, 50 Atl. 493. Sherman, 40 Misc. 205, 81 N. Y. Supp. See Torrey v. Cook, 11 Miss. (3 642. Smedes & M.) 60; Haynes v. Sher- **i Ash V. Purnell, 16 Daly, 189, 26 win-Williams Co., 126 111. App. 414. Abb. N. C. 92, 11 N. Y. Supp. 54. 444 Thompson v. Chapman, 57 Ga. *42 Cairo & St. L. R. Co. v. Wig- 16; Snoddy v. Watt, 9 Ala. 609. And gins Ferry Co., 82 111. 230; Gerlach see Atkinson t. Lester, 2 111. (1 V. Walsh, 41 111. App. 83; Jolly v. Scam.) 407. Ghering, 40 Ind. 139; Allen v. Shan- 445 See Duff v. Fitzwater, 54 Pa. non, 74 Ind. 164; Smith v. White, 35 224. 93 Am. Dec. 691; Stanford Land Ky. (5 Dana) 376; Campbell v. Mai- Co. v. Steidle, 28 Wash. 72, 68 Pac. lory, 22 How. Pr. (N. Y.) 183; 178. Snhneider v. Leizman, 57 Hun, 561, 11 446 Leary v. Langsdale, 35 Ind. 74; N. Y. Supp. 434; Conley v. Conley, 78 Jackson v. Adams, Wils. (Ind.) 398. Wis. 665, 47 N. W. 950. 447 People v. Boardman, 4 Keyes 443Vaughan v. Vaughan, 111 Ga. (N. Y.) 59. 807, 35 S. E. 650; Story v. Walker, 71 44s Sims v. Humphrey, 4 Denio (N. N. J. Law, 226, 58 Atl. 349; Newingv. Y.) 185; Potter v. New York Baptist . 978 COMPLAINT, PETITION OR AFFIDAVIT. 1791 h Previous demand or notice. If the statute requires a de- mand for possession or notice to quit, the complaint or affidavit must aver the making or service of a demand or notice answer- in- to the statutory requirement.^^^ It has been held, however, that the fact that the statute requires a written notice to quit does not necessitate an averment that the notice was in writing, though this must be shown on the trial.^^*^ There need not be an averment as to the person by whom the service was made.'^'^i But the person on whom the demand or - notice was served must appear .^^^ in one state it has been decided that a general allegation of service is sufficient without stating the mode of service,^^^ but elsewhere there are decisions to the effect that the mode of service must be stated ;454 and it has been decided that if the service was not a personal one, the complaint must show that such substituted service was in accordance with the statute providing therefor,^^^ and must state the facts render- ing such mode of service proper in the particular case.^ss Mission Soc. 23 Misc. 671. 52 N. Y. 453 Knowles v. Murphy. 107 Cal. gyp 294 107. 40 Pac. 111. See Ballance v. 449 Spear v. Lomax. 42 Ala. 576; Fortier, 8 111. (3 Gilm.) 291. Smith V KiUeck. 10 111. (5 Gilm.) 454 People v. Keteltas, 12 Hun (N. 295- Dunne v. School Trustees. 39 Y.) 67; Posson v. Dean. 8 Civ. Proc. Ill '578; Hickey V. Conley. 24 Pa. R. (N. Y.) 177; Stuvesant Real Es- Super Ct. 388; State v. Allen, 45 Mo. tate Co. v. Sherman. 40 Misc. 20d, 81 Ann 551- Brahn v. Jersey City Forge N. Y. Supp. 642; Lowman v. West, 8 Co '38 N J Law, 74; Conley v. Con- Wash. 355. 36 Pac. 258. These were ley' 78 Wis 665, 47 N. W. 950; Bris- cases of notice to quit for nonpay- ted V. Harrell, 20 Misc. 348, 45 N. Y. ment of rent. In Boyd v. Milone, 24 Supp. 918. But if the statute names Misc. 734, 53 N. Y. Supp. 785, it was the essentials of the complaint, with- held that a general averment of a out requiring an averment of notice, demand for rent was insufficient, it this need not be made. Chung Yow ^^^^^ being averred to have been per- V. Hop Chung. 11 Or. 220. 4 Pac. 326. ^^^^^_ ^g ^^ ^j^e cure of defects in An averment of notice Is obviously ^^^ petition in this regard by the unnecessary when no notice is neces- ^^g^gj,^ ggg peabody v. Long Acre sary. Campbell v. Johnson, 129 Mo. sqy^j,g'Bidg. Co., 112 App. Div. 114, App. 201, 107 S. W. 1020. 98 N Y. Supp. 242. 4.,o Hitchcock v.McKinster. 21 Neb. ^^,^^^^^^ ^ McGovern, 41 App. 148. 31 N. W. 507. g^ 493 p^^pie 451 Morris Canal & Banking Co. v. ^n. ■5»^' °« ^ • .'' . ... Mitchell, 31 N. J. Law, 100. v. Piatt 43 Barb. (N^ YO 116. 4.s2R.ogersv. Lynds. 14Wend. (N. 4^'-> Scheifele v. Irvmg. 53 N. J. Y.) 172; Wolcott v. Schenk, 16 How. Law, 180, 20 Atl. 10.5. Pr. (N. Y.) 44. 1792 SUMMARY PROCEEDINGS. § 278 i. Right to possession. To enable the landlord to recover pos- session alter the expiration of the term, or, in the case of a ten- ancy at will or from year to year, after the termination of such tenancy by notice or otherwise, it has been regarded as necessary, in some jurisdictions, to state the terms of the lease as regards its character and duration, so that, if it is a lease for years, it will appear to have come to an end by lapse of time, and, if termina])le by notice, it will appear to have been properly terminated by the notice stated to have l)een given.^^^ If the facts stated show that the complainant is entitled to possession, this need not be ex- pressly averred.^^** It need not be alleged that the holding over is wrongful ^^^ or by force,*^° or, it has been decided, that it is "without the per- mission" of the landlord,^^^ though a different view has been taken as to the latter averment when the statute in terms au- thorized a proceeding against one holding over "without per- mission. "-^62. 463 j. Nonpayment of rent. When the proceeding is based on the nonpayment of rent, an allegation of the amount of rent due has been regarded as necessary, in order that the defendant may be 457 Bowles V. Dean, 84 Miss. 37C, 36 458 Engels v. Mitchell, 30 Minn. 122, So. 391; Fowler v. Roe, 25 N. J. Law, 14 N. W. 510. 549; Shepherd v. Sliker. 31 N. J. -ti^o Uriel ias v. Morrell, 25 Cal. 31 Law, 432; Steffens v. Earl, 40 N. J. (semble) ; Stanford Land Co. v. Law, 128; People v. Matthews, 38 Steidle, 28 Wash. 72, 68 Pac. 178. In N. Y. 451; People v. Simpson, 28 N. Fry v. Day, 97 Ind. 348, it is said that Y. 55. In Maryland a statement in where the statute provides for a pro- substance that the landlord has rent- ceeding against a tenant who "un- ed or leased certain property to the lawfully holds over," if an averment tenant for a term which has ended of unlawful holding is necessary, an is said to be sufficient in this regard, averment that defendant "unlawful- Burrell v. Lamm. 67 Md. 580, 11 Atl. ly detains" is sufficient. 56. See, also, Spear v. Lomax, 42 46o wheeler v. Reitz, 92 Ind. 379; Ala. 576. Chambers v. Hoover, 3 "Wash. T. 107, It has been decided that a com- 13 Pac. 466. plaint seeking to recover possession -ici Moore v. Smith, 56 N. J. Law, on account of the breach of a condi- 446, 29 Atl. 159. See Earl Orchard tion against subletting without the Co. v. Fava, 138 Cal. 76, 70 Pac. 1073. landlord's consent is not substantial- 462, 463 Prouty v. Prouty, 5 How. Pr. ly defective because it fails to state (N. Y.) 81; Conley v. Conley, 78 Wis. that the subletting was without such 665, 47 N. W. 950. See Campbell v. consent. Schroeder v. Tomlinson, 70 Mallory, 22 How. Pr. (N. Y.) 183. Conn. 348, 39 Atl. 484. « 278 COMPLAINT, PETITION OR AFFIDAVIT. 1793 able to pay the rent and so put an end to the proceeding.^s^ In one state, however, such an allegation has been decided to be un- necessary ,-"5 ^ and in another state it appears that if any rent is shown to be due, though less than that named, a judgment for the landlord is proper.^^e The amount of rent named must be only that due to the petitioner, and must not include rent due to his predecessor in interest.^^'^ A complaint on this ground need not, it seems, state the char- acter or duration of the tenancy,468 unless the remedy is re- stricted by the statute to particular classes of tenancy.-'^^ If the statute authorizes such a proceeding only if the arrears of rent cannot be collected by distress, the affidavit must state that such is the case,^^^ and an averment that the landlord be- lieves such to b^ the case is insuffieicnt.-^^i If a demand of the rent is a prerequisite, the making of the demand must be stated.^^^ in New York it appears to have been decided that a general averment of the demand of rent, without stating whether it is personal or how otherwise it was made, is insufficient.4^3.474 «4 Vaughn V. Locke, 27 Mo. 290; actually due. the proceeding is not Welch V. Ashby, 88 Mo. App. 400; defeated because he states less than Layton v. Dennis, 43 N. J. Law, 380. that due. In Knowles v. Murphy, 107 Gal. 107, ^^- Vaughn v. Locke, 27 Mo. 290. 40 Pac 111 it was decided that when •^-'s See Layton v. Dennis, 43 N. J. rent is payable in advance, an aver- Law. 380; People v. Teed, 48 Barb, ment that the amount in default cov- (N. Y.) 424. ered a period which extended beyond «o McDermott v. Mcllwam, 75 Pa. the date at which the demand was 341. made or bevond the date when the 470 Wilson v. Wood, 84 Miss. .-8. last instalment accrued, is mere sur- 36 So. 609; Hickey v. Conley, 24 Pa. plusage it stating the terms of the Super. Ct. 388. lease akd the period during which 471 Schuyler v. Trefren, 26 N. J. default existed prior to the date of Law, 213. demand *" Lacrabere v. Wise, 141 Cal. 554, " 4ns Lamar v. Sheppard, 84 Ga. 561, 75 Pac. 185, 99 Am. St. Rep. 88; 10 S E 1084. Schuyler v. Trefren, 26 N. J. Law, 466Diirant Land Imp. Go. v. East 213; People v. Piatt, 43 Barb. (N. Y.) River Elec Co., 17 N. Y. Civ. Proc. 116; Wolcott v. Schenk, 16 How. Pr. 224 6 N Y Supp. 659. In Mooers (N. Y.) 449; People v. Keteltas, 12 V Martin. 23 Mo. Anp. 654; Id., 99 Hun (N. Y.) 67; Miles v. Orr (N. J. Mo. 84. 12 S. W. 522, it is decided Law) 25 Atl. 268; Wilson v. Wood, that though the statute requires the 84 Miss. 728, 36 So. 609. landlord to state the amount of rent *", 471 Engel-Heller Co. T. Henry L. and Ten. 113. 1794 SUMMARY PROCEEDINGS. §279 k. Amendment. In one state it has been decided that the complaint cannot be amended after filing, tbe statute not in terms giving the justice this power,^^^ and in another state it was de- cided that the affidavit of defense cannot be amended.^ ^^ In other cases a right of amendment in proceedings of this character has been clearly recognized."*^^ § 279. Answer or plea. The statutes rarely contain specific provisions as to the plead- ing to be filed by the person or persons against whom the pro- ceeding is brought,'* ^^ and the practice in this regard is usually Elias Brew. Co., 37 Misc. 480, 75 N. Y. Supp. 1080. 475 Wilson V. Bayley, 42 N. J. Law. 132; Waters v. Haynes, 49 N. J. Law, 598, 9 Atl. 770, 60 Am. Rep. 592. In Bliss V. Caryell, 28 Misc. 162, 59 N. Y. Supp. 13, it was decided that if the tenant appears and proceeds to trial without pointing out any defect in the petition, he cannot thereafter ob- ject that the court was without juris- diction because, after the issuance of the precept and before trial, the landlord's name was substituted in the verification for that of his agent. 4T6 Mothershead v. DeGive, 82 Ga. 193, 8 S. E. 62. •»"7 Thompson v. Sornberger, 78 111. 353; Valencia v. Couch, 32 Cal. 340, 91 Am. Dec. 589; Shelby v. Houston, 38 Cal. 410; Howard v. Valentine, 20 Cal. 2S2; Earl Orchard Co. v. Fava, 138 Cal. 76, 70 Pac. 1073; Liddon v. Hodnett, 22 Fla. 271; Jackson v. Warren, 32 111. 331; Spurck v. For- syth, 40 111. 438; Bowles v. Dean, 84 Miss. 376, 36 So. 391; Gensler v. Nicholas. 151 Mich. 529, 15 Det. Leg. N. 13, 115 N. W. 458. 4TS A few of the statutes refer to a pleading to be filed by the defend- ant in the proceeding. See Michigan Comp. Laws 1897, § 11168 (Defend- ant may plead "not guilty," or such plea may be entered for him) ; Min- nesota Rev. Laws 1905, § 4042 (All matters in e.xcuse, justification, or avoidance, shall be set up in the an- swer) ; Neiv Hampshire Pub. St. 1901, c. 246, § 11 (Under general issue, defendant shall not question title) ; Neio York Code Civ. Proc. § 2244 (Person to whom precept is directed, or his landlord, or any person in pos- session, may file a written answer, verified, denying generally the alle- gations, or specifically any material allegation of the petition, or setting forth any new matter constituting a defense or counterclaim). Under this statute, a counter affidavit is in- sufficient (Yuelin v. Meade, 1 Civ. Proc. R. 446), as Is a motion to dis- miss, for the purpose of raising the issue of res judicata (Fritzuskie v. Wauroski, 83 App. Div. 150, 82 N. Y. Supp. 543). Virginia Code 1904, § 2717 (Plea to be not guilty); West Virginia Code 1906, § 3333 (ditto); Wisconsin Rev. St. 1898, § 3364 (same as Minnesota). In two states, there is a provision for a counter affidavit by the person in possession. Georgia Code 1895, §§ 4813, 4821 (Tenant may arrest pro ceedings by filing affidavit that hlb § 280 SUMMONS AND RETURN. 1795 determined by the practice ordinarily adopted in proceedings in the particular court.^'^^ In some, probably in most, of the states, the plea of "not guilty" is a proper plea, as in proceedings for forcible entry .^^*^ This plea has been regarded as equivalent to a general denial, putting in issue all the facts alleged by plaintilT, including that of the existence of the relation of landlord and tenant.'^^i In New York the statute provides that any person in possession or claiming possession of the premises, or a part thereof, may file a verified answer.'*^^ j^ h^g been held that no person can avail himself of this provision unless he belongs to one of the classes against whom, under the statute, the proceeding might have been instituted, and that it gives no right to entire strangers to inter- vene.'*^^ An assignee may, it has been decided, intervene by force of such provision, though she has transferred her entire term, provided she reserved a rent.^^'* § 280. Summons and return. The statutes almost invariably provide for the issuance of a summons or notice to the person against whom the proceeding is instituted, notifying him to appear before the court or officer is- suing it, and to show cause why he should not be compelled to relinquish possession. Some statutes contain specific provisions lease has not expired, that rent a plea of the general issue, nor to a claimed is not due, or that he does plea of nontenure at the time of the not hold under complainant). See filing of the complaint and service Moody V. Ronaldson, 38 Ga. 652; Wer- of notice. ner T. Footman, 54 Ga. 128; Mothers- 4so See McGuire v. Cook, 13 Ark. head v. De Give, 82 Ga. 193, 8 S. E. 448; Sullivan v. Gary, 17 Cal. 80; 62. Mississippi Code 1906, § 2890 Minturn v. Burr, 20 Cal. 49; Ray- ( Person in possession may file aflB- mond v. Bell, 18 Conn. 81; McKin- davit denying facts on which sum- ney v. Hartman, 4 Iowa, 154; Gal- mons issued). ligher v. Connell, 23 Neb. 391, 36 N. *^^ See Poffenberger v. Blackstone, W. 566. 57 Ind. 288; Ward v. Pittsburg, C, C. 48i Sodini v. Gaber, 101 Minn. 155, & St. L. R. Co., 25 Ind. App. 405, 58 111 N. W. 962. N. E. 264. In Davis v. Alden, 66 482 Code Civ. Proc. § 2244. Mass. (12 Cush.) 323, it was decided 483 Heuser v. Antonius, 84 N. Y. that a plea that the respondent "is Supp. 580. not in possession of the premises de- 484 Levy v. Winkler, 59 Misc. 482, manded" is bad, it not amounting to 110 N. Y. Supp. 997. 1796 SUMMARY PROCEEDINGS. § 2S0 L.:. :o tlie contents of the summons, as, for instanot', tliat it describe the premises sought to be recovered, or that it state the grounds on which relief is sought>^^ That it must state the grounds upon which the proceeding is based has been recognized, however, apart from any statutory provision in that regard,*^* and pre- sumably a statement of the grounds necessarily involves an iden- tification of the premises sought to be recovered. That the stat- ute requires the summons to describe the premises does not ne- cessitate that it show them to be within the judicial district.*^' In one state at least the statute requires the summons to be di- rected to the persons named in the petition as being in possession of the property .^5^ A defect in the summons is cured by the appearance of the de- fendant in the proceoding for the purpose of trial, without ob- jection on account of such defect,^^* though it is different, aj)- parently, if he appears merely to object on that ground.*^*-^ In a majority of the states the statute contains specific provi- sions as to the length of time to intervene between the time of issuing or serving the summons and the time named therein for *M See e. g., Michigan Comp. Laws not sufficiently show his right to 1S97, § 11167; Mississippi Code 1906. maintain the proceeding. § 2SS6; yebrasJca Comp. St. 1905. § *st People v. Kelly, 20 Hun (N. Y.) 752S; NeiD Jersey, 2 Gen. St p. 1918. 549. § 12; yev) York Code Civ. Proc. § *?s Xew York Code Civ. Proc. § 223S; yorth Carolina Revisal 1905, § 2238. See Hill v. Stocking, 6 Hill 2003: Oft to Rev. St. 1906. § 6604; (N. Y.) 314. 41 Am. Dec. 74S: Cun- Oklcihoma Rev. St. 1903. § 5091. See ningham v. Goelet, 4 Denlo (N. Y.) Deuel V. Rust, 24 Barb. (N. Y.) 43S: 71. A summons addressed to a firm Campbell v. Mallory, 22 How. Pr. (N. was held to be sufficient when the Y.) 1S5. names of the members appeared in *S6 McGinnis V. Yernon, 67 Pa. 149 ; the title of the cause on the sum- Kaier t. Leahy, 15 Pa. Co. Ct. R. mons. Case v. Porterfield, 54 App. 243. In Carlisle v. Prior. 4S S. a Div. 109, 66 N. Y. Supp. 337. 1S3, 26 S. E. 244, it is stated that the *J9 Sims v. Humphrey, 4 Denio (N. noace must show on which of the Y.) 1S5: Nemetty v. Naylor, 100 N. ^^rious statutory grounds the pro- Y. 562, 3 N. E. 497. See Mayes v. ceeding was commenced. The "no- Evans (S. C.) 61 S. E. 216. As to tice" in that jurisdiction answers what constitutes an appearance for apparently to what is ordinarily call- this purpose, see Luhrs v Commoss, ed the "summons." It is also decid- 13 Abb. N. C. (N. Y.) 88. ed in that case that an allegation in 490 Givens v. Miller, 62 Pa. 133; the notice that the plaintia is the State v. Marshall, 24 S. C. 507. executor of the deceased owner does § 280 SUMMONS AND RETURN. 1797 its return or the trial of the proceeding. The purx)Ose of the statutes being to enable the landlord to speedily obtain the pos- session to which he is entitled, the summons is ordinarily required to be returnable after the lapse of but a few days, while the per- son in possession is protected by a requirement that it shall not be returnable until a minimum number of days has elapsed.^^^ "1 CaH/ornia Code Civ. Proc. § 1167 1906, § 2887 (Summons to require (Must require defendant to appear tenant to show cause on a day not and answer within three days) ; Colo- less than three nor more than five rado, Mills' Ann. St. 1891, § 19J0 days from date) ; Missouri Rev. St. (Summons must require appearance 1899, § 4132 (Summons to be served in not less than five nor more than at least five days before return day) ; seven days, nor more than thirty in Nebraska Comp. St. § 7527 (Service court of record); District of Colum- to be three days before trial); Ne- tia Code 1901, § 21 (Summons must vada Comp. Laws 1900, § 3842 (Serv- issue seven days before trial); Flor- ice to be at least two days before ida Gen. St. 1906, § 2227 (Must re- return day); New Hampshire Pub. quire defendant to remove or show St. 1901, c. 246, § 8 (Service to be cause within not less than three nor seven days before return day) ; New more than five days); Georgia Code Jersey, 2 Gen. St. p. 1918, § 13 (Sura- 1895, §§ 4813, 4821 (Warrant to de- mons to require tenant to show cause liver possession to complainant to not less than ten nor more than fif- be executed after three days, unless teen days from date) ; New York counter affidavit filed and bond giv- Code Civ. Proc. § 2238 (Precept to en) ; Illinois, Kurd's Rev. St. 1905, c. be made returnable not less than 57, § 7 (Summons to name day for three nor more than five days trial not less than five nor more than after issuance, except that when pro- fifteen days from date of summons, ceeding is based on holding over by unless in court of record, when re- tenant and is instituted on day of turnable to first day of next term); expiration of lease, or the next day Indiana. Burns' Ann. St. 1901, § 7108 thereafter, the precept may be made (Summons to require appearance in returnable on the same day). See not less than five nor more than fif- Russeil v. Ostrander, 30 How. Pr. 93; teen days after its issuance) ; loioa Luhrs v. Commoss, 13 Abb. N. C. 88. Code 1897, § 4214 (Appearance to be in North Carolina Revisal 1905, § 2002 not less than two nor more than six (Summons to require appearance at days after service, unless in court of a time not more than five days from record) ; Michigan Comp. Laws 1897, issue, unless by con.sent) ; Ohio Rev. § 11167 (Summons to be served at St. 1906, § 6604 (Service shall be least two days before time for appear- three days before day of trial) ; Okla- ance named therein ); ilfinnesof a Rev. homa Rev. St. 1903, § 5091 (ditto); Laws 1905, § 4040 (Day named for Oregon, Bell. & C. Cc:Ies, § 5749 appearance to be not less than three (Service to he not less than two nor nor more than ten days from issu- more than four days before day of ance of summons); Mississipi Code trial); Pennsylvania, Pepper & 1798 SUMMARY PROCEEDINGS. § 280 "When the statute requires the summons to be returnable in not loss than three days after issuauee, it may, if issued on the twenty- first day of the month, be made returnable on the twenty-fifth,-*'*2 hut three entire days must elapse between the date of issuance and that of return, and it cannot be made returnal)le in such case on the twenty-fourth.-* ^^ A requirement that the summons shall be returnable "within four days" is satisfied if it is made returnable on the fourth day ,■*••■* and the naming of an excessive time for return is, like other defects, cured by appearance with- out objection.495 The fact that the writ was dated six days be- fore the return day named, when the statute provided that the interval must be no greater than five days, was held to be imma- terial, it being actually issued only three days before.^^^ The statutes frequently contain specific provisions for substi- tuted service, in case the person to whom the summons is directed is not found, by leaving a copy at his place of residence or on the premises, with some person of suitable age and discretion, or by posting a copy on the premises.''^^ Such substituted service is Lewis' Dig. Laws, "Landlord & Ten- five days before return day); West ant," §§ 25, 34 (Tenant holding over Virfjinia Code 1906, § 3333 (Service to show cause within four days after to be at least ten days before return issuance, and tenant not paying rent day); Wisconftin Rev. St. § 3362 to appear not less than three nor (Summons must require appearance more than eight days thereafter) ; not less than three nor more than South Carolina Civ. Code 1902, § ten days from issuance); Wyoming 2423 (Summons to require tenant to Rev. St. 1899, § 4488 (Summons to show cause within three days from be served not less than three nor service); Soxith Dakota, Justices' more than twelve days before trial). Code, § 48 (Time for appearance and 492 People v. Marvin Safe Co., 5 pleading to be not less than two nor Hun (N. Y.) 218. more than four days from service ^n.-? Sallee v. Ireland, 9 Mich. 154. of summons;) Tennessee, Shannon's ^aiHower v. Krider, 15 Serg. '& Code 1896, § 5101 (Time of trial not R. (Pa.) 43. to be less than six days after serv- 495 Stroup v. McClure, 4 Yeates ice); Teres Rev. St. 1895, art. 2523 (Pa.) 523. (Time for appearance to be not more . •« Powers v. De 0, 64 App. Div. than ten nor less than six days from 373, 72 N. Y. Supp. 103. date of citation) ; Utah Comp. Laws -t^T Colorado, Mills' Ann. St. 1891, 1907, § 3580 (Summons shall re- § 1981; District of Cohtmhia Code quire defendant to appear not less 1901, § 1225; Illinois. Kurd's Rev. than three nor more than twelve St. 1903, c. 57, § 4; Indiana, Burns' days after service); Virginia Code Ann. St. 1001, § 7109; Iowa Code 1904, § 2717 (Service to be at least 1897, § 4213; Kansas Gen. St. 1905, §281 ADJOURNMENT OF PROCEEDING. 1799 valid only when the conditions named in the statute are shown to exist.^^s Service on a person in possession of the premises, claim- ing to be the lessee's agent, has been regarded as sufficient, as against the lessee, when the statute provides for summoning the lessee "or other person claiming or coming into possession un- der the said lessee or tenant, "^^^ and service on one member of a firm was regarded as sufficient as against both, when the other was absent from the city and non compos mentis, and the mem- bers of the firm were subtenants, the member who was served being the lessee.^"^ § 281. Adjournment of the proceeding. Since the object of the statute is to furnish a speedy method of obtaining the possession to which one is entitled, there is fre- quently to be found a provision restricting the grounds upon which and time for which an adjournment may be granted.^'^i § 5845; Kentucky St. 1903, § 2294; son in the absence of both, the stat- Michigan Comp. Laws 1897, § 11, ute providing for substituted serv- 167; Minnesota Rev. Laws 1905, § ice on the person named in the pre- 4041; Mississippi Code 1906, § 2888; cept, in his absence, by leaving a Missouri Rev. St. 1899, §§ 4116V copy. People v. DeCamp, 12 Hun 4132; Nevada Comp. Laws 1900, § (N. Y.) 378. 3843; New Jersey, 2 Gen. St. 1923, 499 Watts v. Fox, 64 Pa. 336. § 35; New York Code Civ. Proc. § soo Ludwig v. Lazarus, 10 App. 2240; North Carolina Revisal 1905, Div. 62, 41 N. Y. Supp. 773. § 2003; Oklahoma Rev. St. 1903, § ^oi Alabama Code 1907, § 4268 5091; Tennessee, Shannon's Code (For good cause, trial may be post- 1896, § 5127; Texas Rev. St. 1895, poned not more than fifteen days, art. 2525; Wisconsin Rev. St. 1898, at the cost of the applicant); Iowa § 3363. Code 1897, § 4215 (No adjournment *98 See People v. Boardman, 4 in justice's court for more than ten Keyes (N. Y.) 59; Beach v. Bain- days); Kansas Gen. St. 1905, § 5401 bridge, 7 Hun (N. Y.) 81; Rath- (No continuance for more than burn V. Weber, 13 Civ. Proc. R. (N. eight days unless applicant files Y.) 50; People V. Piatt, 43 Barb. (N. bond); Michigan Comp. Laws 1897, Y.) 116; Cameron v. McDonald, 1 § 11169 (If no appearance on return Hill (N. Y.) 512; Deuel v. Rust, day, officer may adjourn hearing 24 Barb. (N. Y.) 438; People v. not more than six days) ; Iff n??eso«o Matthews, 43 Barb. (N. Y.) 168; Id., Rev. Laws 1905, § 4043 (Justice 38 N. Y. 451. may, in discretion, adjourn trial for Service on two joint lessees can- not more than six days, or for three not be made, it has been decided, by months if no written lease signed leaving one copy with another per- and acknowledged by both parties. 1800 SUMMARY PROCEEDINGS. § 282 § 282. Findings of fact. In order to justify a judgment of dispossession, there must be a finding of the existence of the facts which, under the statute, give jurisdiction to render such a judgment.^"^ The statute quite frequently provides for a trial by jury, usu- ally on the request of one of the parties to the proceeding.^^^^ and defendant makes oath as to ab- rent) ; Wyojning Rev. St. 1899, § 4491 sence of material witness and gives (No continuance for more than bond) ; il/ississippt Code 190C, § 2891 eight days unless defendant gives (Magistrate may, at request of undertaking to pay rent and costs), either party, adjourn the hearing 002 Lacrabere v. Wise, 141 Cal. 554, Irom time to time. No adjourn- 75 Pac. 185, 99 Am. St. Rep. 88 ment to be for more than ten days (finding of service of notice neces- unless by consent); Nebraska Comp. sary) ; Cambridge Lodge No. 9, K. St. 1906, § 7531 (same as Kansas); p. y. Routh, 163 Ind. 1, 71 N. B. 14S Nevada Comp. Laws 1900, § 3845 (finding of nonpayment of rent due, (Justice may adjourn trial, but not after notice to pay, necessary); more than five days, unless defend- Thomas v. Flamer, 1 Phila. (Pa.) ant makes oath as to absence of 518, 12 Leg. Int. 10 (finding of in- witness and gives bond); New York sufficiency of distress necessary). Code Civ. Proc. § 2248 (Adjourn- noa California Code Civ. Proc. § ment in discretion of justice, to en- im- Connecticut Gen. St. 1902, § able witnesses to be procured, for 108O; Florida Gen. St. 1906, § 2231; not more than ten days, except by Qeorgia Code 1895, § 4816; Idaho consent) ; 0?iio Rev. St. 1906, § 6G06 code Civ. Proc. § 3987; Illinois, (No continuance for more than Hurd's Rev. St. 1905, c. 57, § 10; eight days unless undertaking given E:a7isas Gen. St. 1905, § 5849; Min- for rent to accrue and costs); Okla- nesota Rev. Laws 1905, § 4042; Neb- homa Rev. St. 1903, § 5093 (same as raska Comp. St. 1905. §§ 2005, 6556 Ohio); Oregon, Bell. & C. Codes, § a; Nevada Comp. Laws 1900, § 3844; 5750 (No continuance for more ^Vew Jersey, 2 Gen. St. p. 1918, § 20; than two days, unless undertaking j^jp^ york Code Civ. Proc. § 2247; given to pay rent to accrue); South 27orth Carolina Revisal 1905, § 2005; Dakota, Justices' Code, § 48 (No ad- Qhio Rev. St. 1906, § 6608; Pennsyh journment for more than fiver days, vania. Pepper & Lewis' Dig. Laws, unless applicant gives security for "Landlord & Tenant," § 25; South rent to accrue and costs) ; Texas Rev. Carolina Civ. Code 1902, § 2421; St. 1895, art. 2530 (For good cause, Texas Rev. St. 1895, art. 2525; Vtah trial may be postponed not more than Comp. Laws 1907, § 3581; Vermont six days) ; Wisconsin Rev. St. 1898, § Pub. St. 1906, § 1871; Virginia Code 3365 (No adjournment for more 1904, § 2719; Washington. Ball. Ann than six days after return day un- Codes & St. § 5539. The statutes less affidavit as to absence of ma- above cited of California, Georgia, terjal witness and bond given for Idaho, and Pennsylvania, provide §283 JUDGMENT OE ORDER, 1801 § 283. Judgment or order. a. In default of appearance. A number of the statutes have provisions bearing upon the question whether, upon failure of the defendant to appear, a juJgmekc for possession shall be given in favor of the plaintiff. By some it is provided that possession shall be awarded unless cause to the contrary is shown,^^^ while by others it is provided that if he lails to appear the trial sba'l proceed as if he had appeared and pleaded.^^^ Even though the statute provides for a trial in the ibsence of any appearance by defendant, judgment may be rend-^'red on the pleadings if he ad- mits the material allegations of the complaint and alleges no defense.^^^ It has been decided that if tl o plaintiff produces a written that tho trial shall be by a Jury. The statute of Tennessee (Shan- non's Code, § 5102) provides that the trial shall be without a jury. 504 California Code Civ. Proc. § 11G9 (K defendant does not appear, his default to be entered and judg- ment for plaintiff); Florida Gen. St. 1906, § 2230 (If no cause to contrary shown, judgment for possession in favor of plaintiff) ; Idaho Code Civ. Proc. § 3986 (Same as California); Maine Rev. St. 1903, c. .96, § 5 (If defend:^nt defaulted, or fails to show sufficient cause, judgment for possession); New Jersey, 2 Gen. St. p. 1919, § 16 (If no sufficient cause shown to contrary, warrant of pos- session to issue). See Watson v. Idler, 54 N. J. Law, 467, 24 Atl. 554. Neio York Code Civ. Proc. § 2249 (Substantially same as New Jer- sey). See Peer v. O'Leaery, 8 Misc. 350, 28 N. Y. Supp. 687; People v. Murray, 2 Misc. 152, 23 N. Y. Supp. 160; Id., 138 N. Y. 635, 33 N. E. 1084; Brown v. City of New York, 66 N. Y. 385. North Carolina Re- visal 1905, § 2004 (If no appearance, judgment for removal). 505 ^.zaftama Code 1907, § 4268 (If I efendant does not appear, or de- I lines to plead, cause to proceed as it he had pleaded not guilty); Illi- ois, Kurd's Rev. St. 1905, c. -57, § 2 (If defendant does not appear, . rial may be ex parte) ; Kansas Gen. "t. 1905, § 5400 (Trial to proceed as If defendant present); Minnesota ftev. Laws 1905, §§ 4040, 4042, 4044. Dee Hennessey v. Pederson, 28 Minu. 461, 11 N. W. 63. Michigan Oomp. Laws 1897, § 11170 (If no ap- pearance and case not adjourned, officer shall try the case) ; Missis- sippi Code 1906, § 28S9 (If no cause ;hown to the contrary, warrant of "estitution shall issue) ; Nebraska Comp. St. 1905, § 7530 (same as Kansas) ; Ohio Rev. St. 1906, § 6605 «'If no appearance by defendant, :rial to be as if he were present) ; Oklahoma Rev. St. 1903, § 5092 (same as Ohio); West Virginia Oode 1906, § 3333 (If no appearance, jury shall try issue) ; Wyoming Rev. St. 1899, § 4489 (If no appear- ance, justice to try cause as if plain- tiff were present). 506 Norton v. Beckman, 53 Minn. 156, 55 N. W. 603. 1S02 SUMMARY PROCEEDINGS. § 283 lease as that under which defendant held, he cannot, on failure to prove the formal execution thereof, maintain the proceeding on oral proof of possession and payment of rent by defendant.^"' A warrant of attorney in the instrument of lease, authorizing a confession of judgment for possession in favor of the landlord in a summary proceeding, has in one state been held to be in- valid, and insufficient to support such a judgment, rendered without the issuance of any process.^*^^ In another state, how- ever, there is a recognized practice by which a judgment for pos- session may be entered in favor of the landlord, in wliat is knowTi as an "amicable action of ejectment," under such a warrant of attorney, upon the expiration of the term or upon a default by the tenant of a character named, the judgment being subject to be stricken off if shown to have been confessed without justifica- tion.509 b. For rent or damages. The statute usually provides that, in case the decision is in favor of the petitioner or plaintiff in the proceeding, judgment shall be rendered for possession and costs, while, if for the defendant, the judgment shall be for costs. Tho statute also quite frequently provides that when the proceeding is based on the nonpayment of rent, judgment shall be given for the amount of the rent due, and occasionally for twice or treble this amount.^^^ In some of the states the landlord, proceeding 507 Barry v. Ryan, 70 Mass. (4 man v. Butterfield, 135 Pa. 236, 19 Gray) 523, 64 Am. Dec. 92, where Atl. 938; Stewart v. Jackson, 181 it is stated, as a reason for so hold- Pa. 549, 37 Atl. 518. ing, that the law will imply no con- sio California Code Civ. Proc. § tract when the parties have made 1174 (Three times amount of rent an express one, and the plaintiff, due). See Nolan v. Hentig, 138 Cal. having produced what he asserted 281, 71 Pac. 440. Georgia Code to be an express contract, cannot ISPS, § 4817 (Double stipulated deny its existence. rent). See Sykes v. Benton, 90 Ga. 508 French v. Wilier, 126 111. 611, 402, 17 S. E. 1002. Michigan Comn. 18 N. E. 811, 2 L. R. A. 717, 9 Am. Laws 1S97, § 11168; Missotiri Rev. St. Rep. 651. St. 1899, § 4132; Montana Rev. 509 See Cook v. Gilbert, 8 Serg. & Codes 1907, § 7283 (Three times R, (Pa.) 567, 11 Am. Dec. 632; Mc- amount of rent due); Utah Comp. Calmont v. Peters. 13 Serg. & R. Laws 1907, § 3584 (Three times (Pa.) 196; Flanigen v. City of Phil- amount of rent due); Washington. adelphia, 51 Pa. 491; Grossman's Ball. Ann. Codes & St. § 5542 (Twice Appeal, 102 Pa. 137, 48 Am. Rep. amount of rent due). See Bond v. 196; Svartz's Appeal, 119 Pa. 20S, Chapman, 34 Wash. 606, 76 Pac. 97. 13 Atl. 69, 4 Am. St. Rep. 631; Dike- 283 JUDGMENT OR ORDER, 1803 against the tenant holding over, is entitled to judgment for com- yensatiou or damages on account of such holding over,^^^'^^^ or oc- casionally for double or treble the agreed rent or rental value for the time of such wrongful holding.^^^ ^ recovery of any rent which may be in arrear is also occasionally authorized, even though the proceeding is based merely on a holding over by the tenant,^^'* It has been held that there can, in a proceeding based on non- payment of rent, be no judgment for the unpaid rent, unless the statute expressly authorizes it,^!^ nor can a judgment for com- cii, 5] 2 AZa&ama Code 1907, § 4273; Arkansas, Kirby's Dig. St. 1904, § 3644; California Code Civ. Proc. § 1174 (Treble damages); Colorado, Mills' Ann. St. 1891, § 1995 (Treble damages, recoverable In separate suit) ; District of Columbia Code 1901, §§ 996, 122«; Idaho Code Civ. Proc. § 3990 (same as California) ; Indiana, Burns' Ann. St. 1901, § 7106. (See Whipple v. Shewalter, 91 Ind. 114; Thomas v. Walmer, 18 Ind. App. 112, 46 N. E. 695). Mon- tana Rev. Codes 1907, § 7283 (Treble damages) ; Nevada Comp. Laws 1900, § 3849 (Treble damages) ; North Carolina Revisal 1905, §§ 2004-2006; North Dakota Rev. Codes 1905, § 8441; Pennsylvania, Pepper & Lewis' Dig. Laws, "Landlord & Tenant," §§ 25, 28. See Murtland v. English, 214 Pa. 325, 63 Atl. 882. Tennessee, Shannon's Code 1896, §§ 5112, 5116; Utah Comp. Laws 1907, § 5584; Washington, Ball. Ann. Codes & St. § 5542. See Hinckley v. Casey, 45 Wash. 430, 88 Pac. 753. Wisconsin Rev. St. 1898, § 3367. 513 Alabama Code 1907, § 4273; District of Columbia Code 1901, §§ 996, 1226; Georgia Code 1895, § 4817 (semble). Vermont Pub. St. 1906, § 1873, au- thorizing recovery of "rents" in a proceeding against a tenant holding over, does not refer to the rent re- served, but a fair and reasonable compensation for the use of the premises. Baldwin v. Skeels, 51 Vt. 121. For a like construction of a substantially similar statute, see Leahy v. Lubman, 67 Mo. App. 191. C14 District of Columbia Code 1901, §§ 996, 1226 (Landlord may embody in his declaration claim for arrears of rent, for double rent, or for dam- ages for waste) ; North Carolina Revisal 1905, §§ 2002, 2005 (Plain- tiff may claim rent in arrear). 515 Ow V. Wickham, 38 Kan. 225, 16 Pac. 335; Jarvis v. Driggs, 69 N. Y. 147; Bennett v. Nick, 29 Misc. 632, 61 N. Y. Supp. 106; Spiio v. Barkin, 30 Misc. 87, 61 N. Y. Supp. 870; Stelle v. Creamer, 69 App. Div. 296, 74 N. Y. Supp. 669. In Whipple v. Shewalter, 91 Ind. 114, it is de- cided that, conceding that the plaintiff had no right to assert such claim in the summary proceeding, objection on that account must be promptly made. In Duke v. Comp- ton, 49 Mo. App. 304, it was decided that a provision giving the trans- feree of the reversion the right, on a default in rent, to institute the proceeding to recover possession, did not give him the benefit of the 1S04 SUMMARY PROCEEDINGS. § 283 pensation for the loss of the use of the premises be rendered in a proceeding against a tenant holding over his term, in the ab- sence of statutory authority therefor.^^*' The statutory right of the landlord to recover overdue rent, in a summary proceeding based on nonpayment of the rent, is not waived, it has been held, by his acceptance of rent falling due after the institution of the proceeding, though he thereby waives his right to recover possession for nonpayment.^^'^ Nor is the landlord's statutory right to recover damages and costs against a tenant holding over affected by the fact that pending the pro- ceeding the tenant relinquishes possession to him.-"^^^ It has been held in one jurisdiction that the plaintiff cannot re- cover double damages under the statute unless they are claimed in the complaint,^^'^ though a different view has been adopted in other jurisdictions on a construction of the local statute.^^o x^ has also been decided that where the statute, in naming the requi- sites of the complaint, does not refer to the necessity of a prayer for a judgment for rent, such prayer is unnecessary to uphold a judgment for the rent, for nonpayment of which possession is de- manded.^21 lu t^g jurisdiction first referred to it was also de- cided that rent becoming due between the time of the trial and the time of the filing of the complaint could not be recovered in the absence of the assertion of a claim therefor, either in the original complaint or in a supplement thereto,'522 \y■^^l g, different view has been taken in another state. ^^^a A provision of the statute authorizing the recovery of damages for the detention of the premises, *Ho be estimated up to the statute entitling the "landlord" to v. Wilbur, 4 Wash. 644, 30 Pac. 665; recover both posse<;sion and rent. Gaffney v. Megrath, 11 Wash. 456, 616 Clark V. Snow, 24 Tex. 242; 39 Pac. 973. See Hart v. Pratt, 19 Sargent v. Smith, 78 Mass. (12 Wash. 560, 53 Pac. 711. Gray) 426; Shunick v. Thompson, b2o pettis v. Brewster, 94 Ga. 527, 25 111. App. 619; Mackenzie v. Por- 19 S. E. 755; Bierkenkamp v. Bier- ter, 40 Colo. 340, 91 Pac. 916. kenkamp, 88 Mo. App. 445. 517 Neiner y. Altemeyer, 68 Mo. b2i Shields v. Stillman, 48 Mo. 82. App. 243. 522 State v. Pittenger, 37 Wash. B18 Peters v. Fisher, 50 Mich. 331, 384, 79 Pac. 942. 15 N. W. 496; McLain v. Nurnberg, 523 Nolan v. Hentig, 138 Cal. 281, 16 N. D. 144, 112 N. W. 243. See 71 Pac. 440. And see Goesse & Hebron Church v. Adams, 121 Mass. Remmers Bldg. & Cont. Co. v. Kin- 257; Barnett v. Feary, 101 Ind. 95. nerk, 127 Mo. App. 451, 105 S. W. 619 Hall & Paulson Furniture Co. 673. . 284 APPEAL AND CERTIORARI. 1S06 time of trial," has been held to autliorize damages in excess of the amount named in the complaint-^^^ In computing such damages, it has been decided, the rental value of the property, and any loss of profits or rents from the detention of the premises, may be considered.'^25 In case of a proceeding against a tenant and a subtenant, it has been said, a judgment for possession should be entered against both, and a judgment for double rent against the former only.^^' § 284. Appeal and certiorari. The statutes almost invariably authorize an appeal by the per- son against whom the judgment is given in the proceeding, such appeal being effective to stay the execution of a judgment of dispossession only in case the appellant gives a bond or under- taking, sufficient to satisfy any damage to the plaintiff caused by the continued withholding of possession.J^^T The appeal is or- B24 White V. Stellwagon, 54 Ind. Maryland Code Pub. Gen. Laws 1904, ^gg art. 53, § 2; Massachusetts Rev. 52.Barnett v. Feary. 101 Ind. 95; Laws 1S02. c. 181. § 6; Michigan Lautmann v. Miller, 158 Ind. 382. Comp. Laws 1897. § 11176; Minne- 63 N E 761; Campbell v. Nixon, 2 sota Rev. Laws 1905, § 4047; Mts- Ind App 463. 28 N. E. 107; Pence souri Rev. St. 1899, § 4139; Nebras- V. Williams. 14 Ind. App. 86. 42 N. ka Comp. St. 1905. § 7539; Nevada E 494- Thomas v. Walmer, 18 Ind. Comp. Laws 1900. § 3849; Neio App 112 46 N. E. 695. Hampshire Pub. St. 1901, c. 246, 5 Special damages, it is said, can- 17; Nezo Mexico Comp. Laws 1897. not be recovered, if not alleged. §§ 3357, 3358; New York Code Civ. Thomas v Walmer, 18 Ind. App. Proc. § 2262; North Carolina R^ 112 46 N E 695. The special dam- visal 1905, § 2008; Oregon, Bell. & ages here in question were for waste. C. Codes. § 5754; South Carolina 5'>6 Fletcher v. Fletcher. 123 Ga. Civ. Code 1902, § 2423; Tennessee, 470 51 S E 418 Shannon's Code 1896. §§ 5108, 5110; .2, Alabama Code 1907, § 4281; Texas Rev. St. 1895. art. 2534; r/iaTi Arizona Rev. St. 1901, §§ 2684, 2693; Comp. Laws 1907. § 3586; Vermont Colorado, Mills' Ann. St. 1891. §§ Pub. St. 1906, § 1876; Yirgima Code 1987 1988- Connecticut Gen. St. 1904, § 2720; Washington, Ball. 1902' 5 1087- District of Columbia Ann. Codes & St. § 5546; West Yxr- Code 1901, §'l232; Florida Gen. St. ginia Code 1906. § 2169; Wisconsin 1906 § 2234- Georgia Code 1895, § Rev. St. 1898, § 3368. 48n' 'Illinois, Kurd's Rev. St. c. 57, As to liabilities on appeal bonds 8 10- Indiana, Burns' Ann. St. 1901. In such proceedings, see King v. 8 7112- Kansas Gen. St. 1905. § Brewer. 19 Ind. 267; Stults v. Zahn. 5809; Maine Rev. St. 1903, c. 96. § 8; 117 Ind. 297, 2 N. E. 154; Harring- 1S06 SUMMARY PROCEEDINGS. §284 dinarily to a superior court of original jurisdiction, and the trial in such court proceeds as if the cause had been originally insti- tuted there. Occasionally the statute specifically provides for the removal of a proceeding of this character to a higher court by writ of certiorari.'^^s Jq some jurisdictions such a writ will lie under general statutory proA'isions or under common-law rulcs.'^^o In case judgment of dispossession is awarded in favor of the plaintiff in the lower court, and he is put in possession thereunder, the appellate court will, in a proper case, upon reversing such judgment, issue a writ of restitution restoring the defendant to the possession of the prcmises.^^o Such a writ will not issue, however, if there is a mere reversal without rendition of any judgment in the higher court,^^^ nor if it clearly appears that the plaintiff has no longer any interest in the land, entitling him to possession. ^532 jj^ ^j^p state it is said that the writ will issue in case the reversal is for jurisdictional defects in the proceedings, but not when it is based on mere irregularities.'^^a ton V. Brown, 24 Mass. (7 Pick.) 232; Byrne v. Morrison, 25 App. D. C. 72; Bartholomew v. Chapin, 51 Mass. (10 Mete.) 1; Davis v. Alden, 68 Mass. (2 Gray) 309; Jackson v. Richards. 82 Mass. (16 Gray) 497; Pray v. Wasdell, 146 Mass. 324, 16 N. E. 266. 028 Michigan Comp. Laws 1905, § 11179; Fennsylvania. Pepper & Lew- is' Dig Laws, "Landlord & Tenant," § 28; Tennessee, Shannon's Code 1896, § 5111. B29 See Morris Canal & Banking Co. V. Mitchell, 31 N. J. Law, 99; Layton v. Dennis, 43 N. J. Law, 380; Roberts v. McPherson, 62 N. J. Law, 165, 40 Atl. 630; Id., 63 N. J. Law, 352, 43 Atl. 1098; Benjamin v. Ben- jamin, 5 N. Y. (1 Seld.) 383; Free- man V. Ogden, 40 N. Y. 105. Where the statute authorized the plaintiff, in case restitution of the premises was awarded him upon the tenant's appeal, either to recover on the appeal bond or to sue In tres- pass or in case for the unlawful de- tainer and for all other damage sus- tained by him, it was hold that, hav- ing elected to sue on the bond, and having recovered the rental value of the premises up to the time of the rendition of the judgment of restitution, the landlord could not afterwards sue for items of damage not recoverable in the action on the bond. Schellenberg v. Frank, 139 Mich. 183, 102 N. W. 644. 550 See Du Bouchet v. Wharton, 12 Conn. 533; McGee v. Fessler, 1 Pa. 126. 531 Mears v. Remare, 34 Md. 333. 532 Chretien v. Doncy, 1 N. Y. (1 Comst.) 419; McGee v. Fessler, 1 Pa. 126. See McQuade v. Emmons, 38 N. J. Law, 397. So restitution was refused when the plaintiff was not entitled to possession owing to the existence of a receivership. Marsh V. Masterson, 15 Daly, 114, 3 N. Y. Supp. 414. 533 People V. Piatt, 43 Barb. (N. . 985 WARRANT OF DISPOSSESSION. 1807 The landlord may, it has been decided, have such a judgment in the higher court as will give him his costs and entitle him to the benefit of any recognizance which he may have taken to secure intervening rent upon the appeal from the ma:4istrate, although, pending the appeal, the tenant may have relinquished possession to him,^-^^ or the landlord's estate, and consequent right of possession, may have come to an end.^ss It has been decided that where the statute provided that the tenant might, at any time before the time appointed for show- ing cause, file an affidavit denying the facts alleged, which mat- ters might be tried by the magistrate, and it also provided that on appeal the case should be tried anew, the tenant might file such affidavit on appeal."'-'''^ The fact that the complaint is required by the statute to be verified in order to confer jurisdiction on the justice does not, it has been decided, preclude an amendment on appeal, increasing the amount demanded for damages, without a new verification.^^T After the landlord has obtained a judgment for possession and for rent up to a specified date, and the tenant has appealed, giving a bond to relinquish possession upon the affirmance of the judgment and to pay all damages and all rent due up to the time of such relinquishment, another action, between the same parties, cannot be instituted to recover possession of the same premises and for rent from the time of the recovery of such judgment in the former proceeding.^^s § 285. Warrant of dispossession. In case the judgment is in favor of the plaintiff, a warrant issues directing the delivery to him of the possession of the premises. It is the duty of the officer executing the warrant to remove all persons who are parties to the proceeding, and, it Y.) 116; People v. Hamilton, 15 Abb. Mass. 309; Casey v. King, 98 Mass. Pr (N. Y.) 328; Bristed v. Harrell, 503. /^„ ./. -VT ■«■ a, aan Qoa s.sG Harvey v. Clark, 81 Miss. 166, 21 Misc. 93, 46 N. Y. Supp. 966. bee „„„„„„•' „^ n.T -tr 4r-i 32 So. 906. People V. Matthews, 38 N. Y. 451. ^^^^^^ ^^^^^ ^ Becker-Moore 534 Hebron Church v. Adams, 121 p^.^^ ^^^ ^^^ ^^^ ^pp 357, 80 S. W. Mass. 257. 346. B35 Coburn v. Palmer, 62 Mass. (8 nss McLain v. Nurnberg, 16 N. D. Cush.) 124; King v. Lawson, 98 138, 112 N. W. 245. 1S08 SUMMARY PROCEEDINGS. § 285 seems, all those persons on the premises who are there as mem- bers of the tenant's family, servants or licensees.'^^g Hq has been held to be liable in damaj^es if he ejects persons not holding under, or deriving title from, parties to the proceeding, although the warrant required him to remove the defendant in the pro- ceeding "and aU others, "^'*° and this is in accord with the modern decisions, as to t^^e execution of a writ for the possession of lands, that persons not parties cannot be removed thereunder.^* ^ It has been decided that the officer owes no duty to the landlord to remove the tenant's goods, but that he may do so as representative of the landlord.^*^ Jq one state it is said that if he removes the goods, and the tenant refuses to take them as they are removed, he is bound to exercise reasonable care in storing them.^^^ Elsewhere, however, it is said that the landlord may leave them on the sidewalk, without any responsibility in ref- erence to their future disposition,'^-** and that he is not liable because the goods are removed by him in the rain and so in- jured.^*^ If he chooses to care for or store them, he cannot assert any riglit to charge storage.^*" If he refuses to relinquish the goods when demand is made, he becomes liable as for con- version,'^*'^ but not if they are still on the premises and these are 539 See ante, at note 140. Bayliss, 40 N. J. Law, 60. But see 640 Colt V. Eves, 12 Conn. 243. Danforth v. Stiatton, 77 Me. 200; But in Inhabitants of Union Tp. v. Scott v. Richardson, 41 Ky. (2 B. Bayliss, 40 N. J. Law, 60, it is said Men.) 510, 38 Am. Dec. 170. to be the officer's duty to remove 543 Gaertner v. Bues, 109 Wis. 165, "all persons in possession, as well 85 N. W. 3S8. Compare ante, § 255b, the defendant as other persons not at notes 25-29. parties to the record." The opin- 544 Conway v. Kennedy, 2 City Ct. ion cites authorities bearing on the R. (N. Y.) 309. execution of the writ of habere 545 Higenbothem v. Lowenbein, 28 facias issued in an ejectment under How. Pr. (N. Y.) 221. the old law, in which case the exe- •'•■4fi Roberts v. Kain, 29 N. Y. cution of the writ rgninst persons Super. Ct. (6 Rob.) 354; Conway v. other than parties to the record was Kennedy, 2 City Ct. R. (N. Y.) 300. absolutely necessary to render a Compare ante, § 255 b, at note 546. judgment against the casual ejector 547 Conway v. Kennedy, 2 City Ct. effective. R. fN. Y.") 309; Smusch v. Kohn, 22 541 See Freeman, Executions, § Misf. 344, 49 N. Y. Supp. 17C; Reich 4T5; Murfree, Sheriffs (2d Ed.) § v. Cochran, 114 App. Div. 141, 9*S 1022. N. Y. Supp. 755. 542 Inhabitants of Union Tp. v. ^ 2S6 CONCLUSIVENESS OF JUDGMENT. 1809 in the possession of another, since in such case the demand should be made on the latter.^^s Both the landlord and the officer are no doubt liable for injuries wantonly caused to the tenant's goods.^^® It is said that the tenant has a reasonable time within which to remove his chattels, after the dispossession in summary proceed- ijjgs_65o His right of property therein cannot be lost, however, by his mere delay in asserting it, until the statute of limitations has run against himSf^i- 552 though any delay beyond a reasonable time in this regard would deprive him of the right to go on the premises, for the purpose of removing his chattels, without there- by becoming liable as a trespasser. § 286. Conclusiveness of judgment. A judgment in a summary proceeding determining the right of possession is a bar to any subsequent action or proceeding based upon a claim by the defeated party that he and not the other should have had judgment for possession.-'^s^ But the judgment is not a bar to a subsequent proceeding by the landlord to recover rent, or damages for holding over, even though these might have been recovered in such proceeding,^^^^ nor is it a bar to an action for breach of covenants by either party.^^^ it is a bar to another proceeding by the landlord to obtain possession based upon the same state of facts.^^^ A judgment in a summary proceeding is ordinarily, like a judgment in any other legal proceeding, conclusive as to such facts as are necessary conditions to the rendition of the judg- ment.^^'^ Applying this rule, it has been stated in a number of cases that a judgment for plaintiff is conclusive as to the exis- 648 Peck V. Knox, 31 N. Y. Super. Rep. 929; Campbell v. Nixon, 2 Ind. Ct. (1 Sweeney) 311. App. 463, 28 N. E. 107; Hinsdale v. B40 See Miller v. White, 80 111. 580. White, 6 Hill (N. Y.) 507. BsoSmusch V. Kohn, 22 Misc. 344, 5" Abrams v. Watson, 59 Ala. 49 N. Y. Supp. 176. 524; Schuricht v. Broad well, 4 Mo. B51. 552See ante, § 242 a, note 113; App. 160; Keating v. Springer, 146 § 255, note 24. HI- 481, 34 N. E. 805, 22 L. R. A. 544, 553 Norwood V. Kirby's Adm'r, 70 37 Am. St. Rep. 175. Ala. 397- Nemetty v. Naylor, 100 see Marsteller v. Marsteller, 132 N. Y. 562. 3 N. E. 497. Pa. 517, 19 Atl. 344, 19 Am. St. Rep. 6B4Belsbaw v. Moses, 49 Ala. 283; C04. Ullman v. Herzberg, 91 Ala. 458, 8 ■•■■^ See 2 Black, Judgments, §§ So. 408, 11 L. R. A. 619, 24 Am. St. 613, 663. L. and Ten. 114. IS 10 SUMMARY PROCEEDINGS. § 286 tciice of the relation of landlord and tenant between the partie.s,^'* but in view of the fact that, as we have seen, the procecdin<;s will in some cases lie even though such relation does not existj'^so it would be perhaps more strictly correct to say that it is con- clusive of the existence of that relation, or of such other rela- tion as will, under the statute, justify the proceeding.^oo A judgment for the plaintiff is conclusive as to the fact of the defendant's possession of the premises at the time of its rendi- tion and the plaintiff's right to possession.5<5i It is also said to be conclusive of the validity of the lease,562 but as to this, some ques- tion might be raised, it seems, since the fact that a lease is invalid would not, ordinarily, it is conceived, preclude a summary pro- ceeding by the landlord to recover possession.'^sa 658 Harvin v. Blackman, 112 La. ceo See ante, § 273 a (1). 24, 36 So. 213; Brown v. City of New ceo a judgment for plaintiff in a York, 66 N. Y. 385; Reich v. Coch- proceeding by the original lessor ran, 151 N. Y. 122, 45 N. E. 367, 37 against an undertenant would not L. R. A. 805, 56 Am. St. Rep. 607; be conclusive that the latter is a Rosenquest v. Noble, 21 App. Div. tenant of the plaintiff. See La 583, 48 N. Y. Supp. 398. So in Rich- Farge v. Park, 1 Edm. Sel. Cas. (N. mond V. Stable, 48 Conn. 22, it is de- Y.) 223. Nor would the judgment cided that a judgment for plaintiff be conclusive of this relation when in such proceeding is conclusive rendered in favor of a subsequent that the relation of landlord and lessee, as being entitled to posses- tenant exists, so that the possession sion, so as to authorize the latter of the defendant cannot have been to recover in use and occupation, adverse. In Reich v. Cochran, 151 sei Western Book & Stationery Co. N. Y. 122, 45 N. E. 367, 37 L. R. A. v. Jevne, 179 111. 71, 53 N. E. 565; 805, 56 Am. St. Rep. 607, it is de- Brown v. City of New York, 66 N. cided that a judgment for plaintiff Y. 385; Reich v. Cochran, 151 N. Y. in the proceeding precludes a sub- 122, 45 N. E. 367, 37 L. R. A. 805, 56 sequent showing by defendant that Am. St. Rep. 607. But see McWil- the alleged lease to him was merely Hams v. King, 32 N. J. Law, 21, con- part of a proceeding to secure a tra, construing a statute, usurious loan to him by the lessor, 662 Harvin v. Blackman, 112 La. that is, the judgment is conclusive 24. 36 So. 213; Reich v. Cochran, that the defendant held under a 151 N. Y. 122, 45 N. E. 367, 37 L. lease. And in McCotter v. Flynn, R. A. 805, 56 Am. St. Rep. 607; Mul- 30 Misc. 119. 61 N. Y. Supp. 786, it ligan v. Cox, 23 Misc. 695, 52 N. Y. is decided that the judgment in a Supp. Ill; Meyerhoffer v. Baker, summary proceeding based on the 121 App. Div. 797, 106 N. Y. Supp. nonpayment of rent is conclusive 718. that there had been no previous 563 See ante, § 273 a (3). In Bol- surrender. ler v. City of New York, 40 N. Y. * 287 EFFECT AS TERMINATING TENANCY. 1811 A judgment for plaintiff in a proceeding to recover possession on the ground of nonpayment of rent is conclusive, it has been decided, as to the fact that some rent is due, though not as to the amount,^- and a judgment for defendant therein is eoncluswe that no rent is due, if it is based on a finding to that effect.-'*'^ A judgment for plaintiff in such a proceeding, based on an allegation of an assignment of the lease to the defendant, and nonpayment of rent by him, has been regarded as conclusive of his lial)ility, in a subsequent action for rent, as an assignee of the lease ^^'' In some jurisdictions the doctrine prevails that where a judg- ment might have been based on any one of two or more distinct facts, and it does not appear upon which it was actually based the person asserting it as an estoppel has the burden ot showing upon which it was based,-^«^ and this doctrine has been applied in the case of a judgment in a summary proceeding In other jurisdictions the view is taken that a judgment is to be presumed, in the absence of evidence to the contrary, to have settled all the issues involved in favor of the successful party. § 287. Effect of proceeding as terminating tenancy. A jud-ment for the plaintiff against a tenant holding over establishes that the tenancy has already come to an end, and consequently the question whether the judgment terminates the tenancy cannot arise. When the proceeding is based, however, on the nonpayment of rent, or breach of other covenant, the ques- tion whether a judgment for recovery of possession will termi- Super. Ct. (8 Jones & S.) 523. it is 565 white v. Coatsworth, 6 N. Y. J ■ir.A fv.'nt n iudffment for plain- (2 Seld.) 137. S'is LrconCu^wrot t.e vaU.U. -Grarton v. Br„ham, 70 Hun, „, t.e .ease .n a .u.se,ue.t action ^^l^^-^^^-^^^^^^, , ,,, '"JBrown v. City ol New York. 6G ».« McSloy v. Kyan, 27 Mich^ 110; N Y 385 (judgment by default); Lewis v. Ocean Nav. 4 Pier Co., 125 Jarvls TvrJ. 69 N. Y. 143; Ros- N. Y. 341, 26 N. E. 301 The case »l, V Noble 21 App. DlT. 583. ot Yonkers & New York Fire Ins, TTy sup 398 Stel V. Cream- Co. v. B.sbop, 1 Daly (N. Y.) 440. Is er 69 App Div 296. 74 N. Y. Supp. apparently contra, and must be tb- l!69- Harley v. McAulltf. 26 Mo. 525. gardcrt as oyerniled. lee Lewy V. woltman, 110 N. Y. -.See 2 Black. Judgments, 5 629. Supp. 256. IS 12 SUMMARY PROCEEDINGS. § 287 nate all rights and liabilities under the lease may possibly arise. The recovery of a judgment of dispossession in such a case would presumably, in the absence of any express provision on the sub- ject, terminate the tenancy, especially after the issue of execution on the judgment.^^^ In New York it was originally provided by statute that the issue of a warrant for the removal of a tenant should cancel the agreement for the use of the premises and annul the relation of landlord and tenant, and it was held that, in the case of a pro- ceeding based on the nonpayment of rent, the warrant related back to the time of the default for which the possession was awarded, and that no rent thereafter accruing could be recovered, though the landlord could recover the rent, for nonpayment of which the proceeding was instituted.^'^i Subsequently there was an addition to the statute in the form of a provision that the issue of the warrant should not prevent the recovery by the land- lord of any sum of money which was, at the time when the precept was issued, payable as rent; or the reasonable value of the use and occupation for any period of time as to rent for which there was no agreement.^'^^ xhe effect of the last clause of the statute is to authorize the recovery of the value of the use and occupation for any period or fractional period during which the tenant remains in possession after the date of dissolution of the tenancy.^^3 If the rent is payable in advance, the fact that the tenant is dispossessed during a particular rent period does not affect the right of the landlord to recover the whole rent for that period.5^* In view of the above provision of the New York statute, termi- nating the tenancy upon the issue of the warrant of removal, the 570 In Johannes v. Kielgast, 27 111. lander v. Nile Tobacco Works, 21 App. 576, the effect of a judgment Misc. 339, 47 N. Y. Supp. 188. See of dispossession was stated to be to Davison v. Donadi, 2 E. D. Smith terminate the tenancy, and this (N. Y.) 121. statement is adopted in Snell v. 574 Kahn v. Tobias, 16 Misc. 83, 37 Owen, 63 111. App. 377. N Y. Supp. 632; Martin v. Lee, 29 571 Hinsdale v. White, 6 Hill (N. Misc. 333, 60 N. Y. Supp. 515; Bem- i.) 507; Crane v. Hardman, 4 E. D. stein v. Heinemann, 1^3 Misc. 464, 51 Smith (N. Y.) 339. N. Y. Supp. 467. Compare Rigland- 572 Code Civ. Proc. § 2253. er v. Nile Tobacco Works, 21 Misc. 573Fursman v. Pennace, 15 Civ. 339, 47 N. Y. Supp. 188, and ante, § Proc. R. 340, 2 N. Y. Supp. 339; Rig- 182 j, at notes 955-955 c. c 287 EFFECT AS TERMINATING TENANCY. 1813 tenancy is not, it has been held, restored by the subsequent re ver- sal of the order of dispossession, unless, it seems, the tenanl invokes the discretionary power of the court to award to him restitution of possession.^'^^ Although the statute expressly provides that the relation ot tenancy shall be annulled by the issue of the warrant, it has been decided that if the warrant is not actually executed, and the tenant accepts the rent, this shows a consent by the landlord to "waive" his rights in this regard, and the tenancy J^ still to be considered in existence upon the same terms as before. This provision has been held to apply to a case in which the war- rant is not actually issued because, owing to the tenant s relin- quishment of possession, its issue is unnecessary, and consequently the liability for rent then ceases.^^^ The issuance of the warrant, it has been decided, terminates not only the original tenancy, but also the subtenancies.s^s The New York statute, providing that the issue of the warrant shall cancel the agreement for the use of the premises and ter- minate the relation of landlord and tenant, does not affect the existence of covenants, not a part of the agreement for the use of the premises, though contained in the same instrument, which are designed to furnish security to the lessors against the eftect of dispossession,^^« and consequently it may be validly stipulated that upon dispossession by summary proceedings, the landlord may relet for account of the tenant, and that he shall remain liable for any disparity between the rent so obtained and the amount so reserved in the lease.^so But a provision that in caso 5T5Niles V Iroquois Realty Co.. 57 2251 provides that the warrant shall Misc. 443, 109 N. Y. Supp. 712. direct the removal of "air tenants^ 5T6Voorhiesv. Cummings, 42APP. "« Hall v. Gould 13 J. Y- (3 Div. 26a. 58 N. Y. Supp. 1120. Kern.) 127; Michaels v. Fishel 169 5TT Gallagher v. Reilly, 16 Daly. N. Y. 381. 62 N. E. 42 ; Longobardi 227 10 N Y. Supp. 536; Riglander v. v. Yuliano, 33 Misc. 472. 67 N. Y. Nile Tobacco Works. 21 Misc. 339. Supp. 902; Franceshini v. Chaucer. 47 N Y. Supp. 188; Baldwin v. Thib- 110 N. Y. Supp. 775. _ ^^ ^ adeau, 28 Abb. N. C. 14. 17 N. Y. 5so Hackett v. Richards 13 N. Y^ ^532 (3 Kern.) 138; Lewis v. Stafford, 24 7t8 Ash V Purnell, 26 Abb. N. C. Misc. 717, 53 N. Y. Supp. 801; James 92 16 Daly. 189. 11 N. Y. Supp. 54. v. Rubino, 30 Misc. 452, 62 N. Y. the court making special reference Supp. 468. See ante. § 182 j. to the fact that Code Civ. Proc. § 1814 SUMMARY PROCEEDINGS. § 288 of "re-entry" the lessor may so relet in behalf of the tenant, inserted in a lease containing an express clause of re-entry for breach of covenants, has been held not to authorize him to so relet upon recovery of possession by summary proceeding.^^^ It has been decided in several cases that if, after the service of the summons or precept, in a proceeding based on the non- payment of rent, the tenant relinquishes possession of the prem- ises in compliance therewith, the relation of tenancy is termi- nated. ^^2 This may, perhaps, be regarded as a case of surrender by operation of law, the prior demand for possession being equiv- alent to a subsequent acceptance thereof.^^s tj^^ eases do not discuss the question from the standpoint of principle. § 288. Injunction against proceeding. A proceeding by a landlord to recover possession, or execution of a judgment therein in his favor, will not be restrained by a court of equity on a ground which might be asserted in the pro- ceeding itself as a defense thereto,^^^ nor on the ground of error in the proceeding.'*^^ An injunction wuU issue, it seems, to relieve from fraud in such a proceeding,586 or to allow the assertion of 681 Michaels v. Fishel, 169 N. Y. wick v. Spargur, 1 Civ. Proc. R. (N. 381, 62 N. E. 425, 57 L. R. A. 317. Y.) 422, and note; Natkins v. Wet- A different view was taken wlien terer, 76 App. Div. 93, 78 N. Y. the lessor was given the right to Supp. 713; Appeal of Pittsburg & A. enter the said premises on default, Droveyard Co., 123 Pa. 250, 16 Atl. "either by process of law or other- 625; Vanarsdalen v. Whitaker, 10 wise," and to relet. Baylies v. Ing- Phila. (Pa.) 153. ram, 84 App. Div. 360, 82 N. Y. Supp. 585 McLean v. Carroll, 6 Rob. 891. (La.) 43; Leonard v. McCool, 3 s82Ash v. Purnell, 26 Abb. N. C. Strob. Eq. (S. C.) 44. 92, 16 Daly, 189, 11 N. Y. Supp. 54; ssc in Huff v. Markham, 71 Ga. Baldwin v. Thibadeau, 28 Abb. N. C. 555, it is said that it will issue only 14, 17 N. Y. Supp. 532; Gallagher v. in extraordinary cases and to pre- Reilly, 10 N. Y. Supp. 536. vent fraud and irreparable injury. 583 See ante, § 190 c (5). In New York it was held that an 684 Wingo v. Hardy, 94 Ala. 184, 10 injunction will issue to relieve the So. 659, 16 L. R. A. 813, 33 Am. St. tenant from fraud by the landlord Rep. 105; Brown v. Watson, 115 Ga. in such a proceeding. See cases 502, 41 S. B. 998 (though defendant cited 14 N. Y. Ann. Cas., at p. 155, unable by reason of poverty to de- note to Weber v. Refers. See, also, fend at law) ; Curd v. Farrar, 47 Asbyll v. Haims, 38 Misc. 578, 78 N. Iowa, 504, 29 Am. Rep. 492; Chad- Y. Supp. 64. That fraud or mistake 289 WRONGFUL INSTITUTION. 18'15 equities which could not be asserted in the proceeding itself.^^^ In New York it is held that an injunction will issue to restrain the execution of a writ of dispossession if the justice is foj f^^ reason without jurisdiction,588 and in Pennsylvania the fact that complicated issues of law are involved, not proper for the decision of the inferior tribunal having jurisdiction of the proceeding, has been regarded as ground for an injunction.^sa There is a decision to the effect that a grantee of the reversion may have an injunction against a proceeding by the original lessor, who is insolvent.^^^o § 289. Liability for wrongful institution of proceeding. The general rule is that, in order to make one liable for the in- stitution of a civil suit, as of a criminal prosecution, it must have been with malice and without probable cause,^^! and, under this rule a landlord would not be liable to his tenant for damage to the latter arising from his wrongful institution of a summary proceeding to recover possession, unless it was instituted mali- ciously and without probable cause. There are decisions to this effect ^92 but there are also decisions to the effect that, even apart from statute, the tenant, if improperly deprived of possession by force of such a proceeding, may recover damages against the landlord, without any suggestion that malice and probable cause must exist.^^^ In any case, no doubt, if the proceedings are m- would be ground for an injunction 592Melson v. Dickson. 63 Ga. 682. is recognized in Denny v. Fron- 36 Am. Rep. 128; Porter v Johnson, heiser. 207 Pa. 174. 56 Atl. 406. 96 Ga. 145. 23 S^, E. 123; Hegan «8TPetsch V. Biggs, 31 Minn. 392. Mantel Co. v. Cooks Adm r 22 Ky. 18 N W 101; Webb V. King, 21 App. Law Rep. 427, 57 S. W. 929. See D C 141 (semble). See 14 N. Y. Block v. Bonnet, 28 La. Ann. 540 Ann ' Cas . at p. 156, and also note In Juergen v. Allegheny County. 204 in i'n Y Civ. Proc. R. at p. 425. Pa. 501, 54 Atl. 281, it was held that 588 See cases cited 14 N. Y. Ann. the tenant could not maintain an ^g ^t p 153 action for damages for the reason, 580Kaufmann v. Liggett, 209 Pa. it seems, that he was protected 87 58 Atl 129 67 L. R. A. 353, 103 against a wrongful ouster owing to Am St Rep. '988. the fact that the statute provides 590 Texas Land Co. v. Turman, 53 for a jury trial in the summary pro- Tex 619 ceeding. 59; See' authorities cited 19 Am. ^93 See Wacholz v. Griesgraber 70 & Eng. Enc. Law (2d Ed.) 655, 673. Minn. 220. 73 N. W. 7; Richardson 1816 SUMMARY PROCEEDINGS. § 289 valid as to the person ousted thereunder, for lack of jurisdiction of the subject-matter of the person, the judgment is no protection to the landlord, or to the persons undertaking to execute it, and they are liable in damages as trespassers.'^^* Occasionally the statute expressly provides that if a judgment in favor of the landlord is reversed on appeal, the tenant shall be entitled to recover for any damage caused him by such pro- ceeding ;f595 and under such a statute, it has been held, the grounds of reversal are immaterial, and cannot be proven in defense to the action for damages.^'^^ Such a statute has been regarded as authorizing the tenant either to demand an issue to ascertain the damages on the trial on appeal, or to bring a separate action for damages.5»7 Where the statute expressly provided that the landlord should remain liable in trespass for any unlawful pro- ceeding under the statute ; and also that either the landlord or the tenant might, in subsequent legal proceedings, deny or disprove the facts on which the decision was based, the landlord was held liable for a dispossession under an erroneous judgment, this latter protecting the justice and constable, but not the land- lord.^98 It has been held that the tenant may recover the pecuniary loss caused by his dispossession,^^^ and nothing more, in the absence of malice or oppression.«o° He has also been allowed to recover the value of the building erected by him and destroyed by the landlord on obtaining possession, and the amount of a sum of V. Callihan, 73 Miss. 4, 19 So. 95. bos McWilliams v. King, 32 N. J. The facts in these cases were, how- Law, 21. But it was held that the ever, it seems, such as to show both relinquishment of possession by the malice and lack of probable cause, tenant on a statement by the officer 504 McCoy V. Hyde, 8 Cow. (N. Y.) that if he did not do so the officer 68; Croft v. King, 8 Daly (N. Y.) would return the next day and put 265; Colt V. Eves, 12 Conn. 243. him out did not involve any liability 595 See New York Code Civ. Proc. in trespass on the part of the land- § 2263; North Carolina Revisal 1905, lord, the officer not having at the § 2010; Pennsylvania, Pepper & time any warrant to dispossess the Lewis' Dig. Laws, "Landlord & Ten- tenant. Coe v. Haines, 44 N. J. ant," § 28. Law, 134. 5f« Hayden v. Florence Sewing 599 Quinn v. McCarty, 33 Leg. Int. Mach. Co., 54 N. Y. 221. (Pa.) 312. 597 Burwell v. Brodie, 134 N. C. Bf'o Koenig v. Bauer, 1 Brewst. 540, 47 S. E. 47. (Pa.) 304. § 289 WRONGFUL INSTITUTION. 1817 money kept on the premises and lost in the course of the tenant's removalj^oi and also the value of the unexpired term, which latter is, ordinarily, to be ascertained by deducting the rent re- served from the rental value of the premises.^^^ tj^^ landlord has been held liable for injuries to the tenant's goods and loss of fruit and vegetables caused by the latter 's dispossession,^"^ and a claim for damages by reason of the tenant's deprivation of his shelter and support, and distress in body and mind, and mortification and loss of employment, has been upheld.^"^ The landlord, by wrongfully procuring the dispossession of the tenant, does not lose his right to credits which he would other- wise have, such as those for advances and supplies.^*^^ 601 Eten V. Luyster, 60 N. Y. 252. 602 See Small v. Clark, 97 Me. 304, 54 Atl. 758; Woods v. Kernan, 57 Hun, 215, 10 N. Y. Supp. 654. In Wilkinson v. Stanley (Tex. Civ. App.) 43 S. W. 606, it was held that if the tenant was wron^ully dis- possessed by sequestration proceed- ings \t the suit of the landlord, the value of the unexpired term was not the measure of damages, but that his damages were the same as In any case of wrongful deprivation of possession by the landlord. 603 Woods v. Kernan, 57 Hun, 215, 10 N. Y. Supp. 654. 604Burwell v. Brodie, 134 N. C. 540, 47 S. E. 47. «05Burwell v. Brodie, 134 N. C. 540, 47 S. E. 47. CHAPTER XXIX. ACTIONS FOR RENT. § 290. At common law. a. Debt. b. Covenant. c. Assumpsit. d. Account. 291. Under the code procedure. 292. Proceedings in equity. 293. Parties plaintiff. a. Persons beneficially Interested. b. Transferees. c. Persons jointly entitled. d. On death of person entitled. e. Statutory provisions. 294. Parties defendant. a. Joint or several liability. b. On assignment of leasehold. c. On death of person liable. d. Persons asserting title. e. Guarantors and sureties. 295. Pleading. 296. Set-off, recoupment, and counterclaim. 297. Limitations. 298. No prior demand necessary. 299. Joinder of causes of action and defenses. 300. Actions for successive installments. 301. Stipulations for attorney's fees. § 290. At common law. a. Debt. At common law, when the person to whom rent was payable had a freehold interest in the rent, the nonpayment thereof on demand was considered a disseisin of the rent, and consequently the real action of novel disseisin was the proper § 290 DEBT. 1819 form of proceeding by which to recover it.* By statute, however, an exception to this rule was made in favor of the executors and administrators of tenants in fee of rents, who were authorized to sue in debt for arrears of rent due to their decedents.^ Since the abolition of real actions, it has, in England, been decided that an action of debt, or its equivalent, will lie in favor of the owner of a rent charge in fee, on the theory that such an action did not lie at common law owing merely to the fact that the higher remedy by real action existed.^' ^ In the case of a rent for life, whether rent reserved on. a lease for life or a rent charge granted for life, the tenant of the land was at common law regarded as personally liable for the rent, and, while this personal liability could not be enforced during the existence of the life interest in the rent, because temporarily superseded by the existence of the "real" obligation on the part of the land, upon the termination of such real obligation by the termination of the life interest the tenant's personal obligation became enforcible by the owner of the rent, or his personal rep- resentatives.^ This was changed, however, by the statute of 8 Anne, c. 14, § 4, so far as concerns leases for life,^ and there are, in several states, similar statutory provisions empowering one having rent due upon a lease for life to sue thereon as if the lease were for years.'^ 1 Litt. §§ 233-240. law, Imposed on the land alone, a 2 32 Hen. VIII, c. 37 (A. D. 1540) ; "real obligation," and hence the Co. Litt. 162 a; Harrison, Chief mere abolition of real actions could Rents, 180. A tenant of land in fee not make it a personal obligation, simple who has leased for years has See the learned review of the sub- been held not to be a tenant in fee ject by T. Cyprian Williams, Esq., of the rent reserved on the lease for 13 Law Quart. Rev. 288, and the years, so that the statute would au- references therein to Ognel's Case, thorize an action of debt for the 4 Coke, 48 b. rent by his executors. Prescott v. s Ognel's Case, 4 Coke, 49 a; Gil- Boucher, 3 Barn. & Adol. 849. bert. Rents, 98; Co. Litt. 162 a, Har- 3,* Thomas v. Sylvester, Li. R. 8 grave's note; 15 Law Quart. Rev Q. B. 368; Christie v. Barker, 53 291. Law J. Q. B. 537; Searle v. Cooke, e See Webb v. Jiggs, 4 Maule & S 43 Ch. Div. 519. See In re Herbage 113. Rents [1896] 2 Ch. 811. The cor- 7 Delaware Rev. Cede 1903, p. 867' rectness of these decisions has been Tnrliana, Burns' Ann. St. 1901, § questioned on the ground that the 7100; Missouri Rev. St. 1899, § 4101; duty of paying rent was, at common New Jersey, 2 Gen. St. p. 1915, § 1; 1820 ACTIONS FOR RENT. « 290 The right of one leasing for years to sue for arrears of the rent reserved in an action of debt was recognized at an early date in the history of that section,^ and that the action is avail- able for this purpose has never been questioned.® The action will also lie for rent reserved upon a tenancy at will.io The action of debt is, as before stated,ii not based on a contract, but is rather a remedy for the recovery of a specific sum in the possession of the defendant belonging to the plaintiff, and, in order to impose liability on the tenant therein, he need not have contracted to pay the rent reserved, he being liable as having obtained the profits of the land. In other words, privity of estate, as distinct from privity of contract, is sufficient to sustain the right of action.i2 Accordingly, an assignee of the leasehold estate which owes the rent is liable in debt to the person entitled to the rent,i3 ^nji ^ transferee of the reversion may recover therein against the lessee or an assignee of the lessee,^ * as may a transferee of the rent without the reversion. ^^ And if part only of the reversion is transferred, the transferee may recover his proportion of the rent in an action of debt.^° Debt will, more- over, lie against the original lessee although the latter has as- New York Real Prop. Law, § 191; 125; McKeon v. Whitney, 3 Denio South Carolina Civ. Code, § 2433. (N. Y.) 452. 8 2 Pollock & l\Iaitland, Hist. Eng. k Walker's Case, 3 Coke, 22 a. Law, 209. Thursby v. Plant, 1 Wms. Saund. 237, oLitt. §§ 58. 72; Co. Litt 47 b; 1 Lev. 259; Ards v. Watkin, Gilbert, Rents, 93; Trapnall v. Mer- Cro. Eliz. 637, C51; Rowland v. Cof- rick, 21 Ark. 503; Rowland v. Coffin, fin. 29 Mass. (12 Pick.) 125; Patten 26 Mass. (9 Pick.) 52; Id., 29 Mass. v. Deshon, 67 Mass. (1 Gray) 325; (12 Pick.) 125; Outtoun v. Dulin, Outtoun v. Dulin, 72 Md. 536. 20 Atl. 72 Md. 536, 20 Atl. 134; McKeon v. 134. The lessee and his assignee Whitney, 3 Denio (N. Y.) 452; Mc- may, it has been said, be sued joint- Ewen V. Joy, 7 Rich. Law (S. C.) ly. See Com. Dig., Dett (e). 33; Elder v. Henry, 34 Tenn. (2 is Williams v. Hay ward, 1 El. & Sneed) 81. El. 1040; Allen v. Bryan. 5 Barn. & 10 Litt. § 72. C. 512; Ryerson v. Quackenbush, 26 "See ante, § 171, at note 124. N. J. Law, 236; Demarest v. Wil- 12 See ante. § 171, at notes 122, lard, 8 Cow. (N. Y.) 206; Kendall 123. V. Garland, 59 Mass. (5 Cush.) 74, 13 Walker's Case, 3 Coke, 22 a; 51 Am. Dec. 44. Thursby x. Plant, 1 Wms. Saund. 237. is Broom v. Hore, Cro. Eliz. 633: note (1) ; Rowland v. Coffin, 26 Mass. Ards v. Watkin, Cro. Eliz. 637, 651. (9 Pick.) 52; Id., 29 Mass. (12 Pick.) § 290 I^EBT. 1821 signed his lease, since the lessee cannot destroy the tenancy into which he has entered without the landlord's assent. If, how- ever, the landlord accept the lessee's assignee as tenant, expressly, or by implication, as by receiving rent from him, he cannot there- after bring debt against the original lessee, since he is no longer in privity of estate with the latter.^ ^ If the lessee's interest in a part of the premises is assigned to another person, or in dif- ferent parts to different persons, each of such assignees is liable in debt, by reason of privity of estate, for a proportional part of the rent.^^ The transferee of the reversion cannot bring debt against the original lessee after the latter 's assignment of tlie term, since there is, in such case, neither privity of contract nor of estate. 1^ And for the same reason the owner of the property cannot bring debt against one holding under a lease made by a stranger to the title.^o An action of debt, if brought by or against one not a party to the original lease, as in the case of an action by the transferee of the lessor or against the assignee of the lessee, being based on privity of estate, was, at common law, regarded as a "local" action, which must be brought in the county where the land lies^i while, if brought against the original lessee by his lessor, it was regarded as transitory, as being based on contract, and might be brought where the lessee was found or where the con- tract was made.22 "Walker's Case, 3 Coke, 22 a; Bayly v. Briggs, Latch, 271; Stev- Marsh v. Brace, Cro. Jac. 334; Mills en-on v. Lambard, 2 East, 575; Bar- V. Auriol, 1 H. Bl. 433; Auriol v. ker v. Darner, Garth. 183; Whitaker Mills, 4 Term R. 94; Wadham v. v. Forbes, L. R. 10 C. P. 583; Brack Marlowe, 8 East, 314, note; Wall v. et v. Alvord, 5 Cow. (N. Y.) 18; Hinds, 70 Mass. (4 Gray) 256, 64 Lansing v. Van Alstyne, 2 Wend. (N. Am. Dec. 64; Bliss v. Gardner, 2 111. Y.) 561, note. App. (2 Bradw.) 422. 22 y. b. 38 Hen. 6, 15; Y. B. 8 Hen. i-^Gamon v. Vernon, 2 Lev. 231; 6, 23; Walker's Case, 3 Coke, 21 b; Curtis V. Spitty, 1 Bing. N. C. 760; Bulwer's Case, 7 Coke, 28 b; Wey Harris v. Frank, 52 Miss. 155; St. v. Yally, 6 Mod. 194; 1 Wms. Saund. Louis Public Schools v. Boatmen's (Ed. 1871), notes to Thursby v. Ins. & Trust Co., 5 Mo. App. 91. Plant, 306-308; Bracket v. Alvord, 19 Humble v. Glover, Cro. Eliz. 5 Cow. (N. Y.) 18; Henwood v. 328; Walker's Case, 3 Coke, 22 a. Cheeseman, 3 Serg. & R. (Pa.) 502; 2oMackey v. Robinson, 12 Pa. 170. Chitty, Pleading (7th Ed.) 282. See post, § 304, at note 20. The statement that the action of 21 Bord v. Cudmore, Cro. Car. 183; debt, when brought by the lessor 1822 ACTIONS FOR RENT. J 290 The action of debt for rent, involving a statement of the demise under which the rent was reserved, the amount of the rent, and the period at which it became due, was to a great extent super- seded in England, while yet the distinctive forms of action ex- isted, by the action of debt for use and occupation, which, unlike the action of assumpsit for use and occupation,23 was not based on statute,^'* but, like the latter action, necessitated no allega- tion by the plaintiff of any formal demise of the premises or reser- vation of any rent, it being sufficient to state that the defendant was indebted to the plaintiff for the use and occupation of certain premises belonging to the plaintiff and occupied by the defen- dant by his request.25 This action was always regarded as trans- itory.26 b. Covenant. On the lessee's covenant to pay rent ordinarily jontained in the instrument of lease, an action of covenant may be brought at common law,^'^ and, in jurisdictions where such form of action is abolished, an equivalent action to enforce the lessee's liability on his covenant will lie. To support the com- mon-law action of covenant, there must be a technical covenant by the lessee, that is, the lease must be sealed by him,^^ since against the lessee, is based on con- 20 Elger v. Marsden, 5 Taunt. 25; tract, involves a use of the term King v. Fraser, 6 East, 348. "contract" in a sense diiterent from 27 Thursby v. Plant, 1 Wms. that in which it is now ordinarily Saund. 237, 1 Lev. 259; Marsh v. used. See ante, § 157 a (1), note Brace, Cro. Jac. 334; Cross v. U. S., 294. 81 U. S. (14 Wall.) 479, 20 Law. Ed. The action of debt was regarded 721; Greenleaf v. Allen, 127 Mass. as transitory if brought by the les- 248; Union Pac. R. Co. v. Chicago, sor against the lessee's executor for R. I. & p. R. Co., 164 111. 88, 45 N. rent due in the lessee's time, while E. 488; Russell v. Fabyan, 28 N. H. local if brought against such execu- 543, 61 Am. Dec. 629; Taylor v. De tor for rent due in the executor's Bus, 31 Ohio St. 468; Outtoun v. time. Bolton v. Cannon, 1 Vent Dulin, 72 Md. 536, 20 Atl. 134. 271; Cormel v. Lisset, 2 Lev. 80. 28 Johnson v. Muzzy, 45 Vt. 419, 23 See post, § 302. 12 Am. Rep. 214; Hinsdale v. Hum- 24 See Egler v. Marsden, 5 Taunt, phrey, 15 Conn. 433; Trustees of 25; Gibson v. Kirk, 1 Q. B. 850; Mc- Hocl^ing Co'unty v. Spencer, 7 Ohio Keon V. Whitney, 3 Denio (N. Y.) (2d pt.) 149. See ante, § 49. But, 452. as before stated, there are decisions 25 Wilkins v. Wingate, 6 Term R. to the effect that it is under the les- 62; Gibson v. Kirk, 1 Q. B. 850: see's seal if it is under the lessor's King v. Fraser. 6 East, 348. See seal and accepted by him. Ante, § Davies v. Edwards, 3 Maule & S. 380. 53 b. COVENANT. 1823 the proper action on a written agreement to pay rent, not under seal, is assumpsit.^^ Not only will such an action lie in favor of the lessor against the lessee, but, as before stated,3o h will lie in f-^\^^^''^^ll feree of the reversion,^! or against an assignee of the leasehold, since the covenant for rent is one which runs with the land. • The liability of the assignee of the leasehold on the covenant is in a sense, based on privity of estate, that is, it is imposed on such assignee as an incident of the leasehold estate passing to him, and^for this reason an action of covenant against him has been regarded as local.^^ On the other hand, such an action by the transferee of the reversion, if against the original lessee, has been regarded as based on privity of contract, on the theory that the privity of contract is transferred by the statute, 32 Hen. 8, c 34 and has therefore been regarded as transitory ,3e as m an actiok on the covenant by the original lessor against the original lessee,^'^ 23€omyn. Landl. & Ten. 482. See -Barker v Damer Carth 182; article by Prof. J. B. Ames, and au- Stevenson v. Lambard. 2 East. liS jrormes there cited. 2 Harv. Law Copeland v. Stephens. 1 Barn. & Rev 37 . But if the action was not Aid. 593. 607; Paul v. Nurse. 8 Barn^ on the promise, but merely for the & C. 486; Bowdre v. Hajnpton, 6 rent reserved, debt was the proper Rich. Law (S. C.) 208; Salisbury v. rent reserveu. Shirley, 66 Cal. 323. 5 Pac. 104; Tsee ante. |§ 180 b (1). 181 b. Hintze v. Thomas. 7 MdJ^^^ C-" 3iM.d<^leys V. Lovelace, 12 Mod. solidated Coal Co. v. Peers, 166 111. 45; Thur^by v. Plant. 1 Wms. Saund. 361. 46 N. E. 1105. 38 L. R. A^ 624^ 23^; Outtoun v Dulin. 72 Md. 536, -Barker v^ Damer. Carth 12. 20 Atl 134- Baldwin v. Walker, 21 Stevenson v. Lambard, 2 East 575 conn. '168; Webster v. Nichols. 104 Thursby v. Plant^ 1 Wms. Saund. Ill 160- Main v. Feathers. 21 Barb. 237; Bowdre v. Hampton. 6 Rich, m Y->' 646 L^^ ^^- ^-^ ^^^' ^^=^^"^ ^- ^^"^ 3; Barker "v. Damer, Carth. 182; Alstyne. 2 Wend. (N. Y.) 561. note. Stevenson V. Lambard, 2 East. 575; 3c Thursby v. Plant. 1 Wms. Williams V. Rosanquet. 1 Brod. & Saund. 237. 1 Lev. 259. and notes in B 238 Howard v. Ramsay. 7 Har. & 1 Wms. Saund. (Ed. 1871) 278, j' (Md) 113- Bowdre v. Hampton, 307; Comyn. Landl. & Ten. 460; 1 6 ' Rich Law (S C.) 208; McMurphy Chltty, Pleading (7th Ed.) 283. V Minot 4 N. H. 251; Port v. J?.ck- 3t Wey v. Tally. 6 Mod. 194; Hen- son 17 Johns (N. Y.) 239; Hannen wood v. Cheeseman, 3 Serg. & R. V Ewalt. 18 Pa. 9. And see cases (Pa.) 500; 1 Chitty, Pleading (7th cited ante, § 181 b, note 670. Ed.) 283. 88 See ante, § 149 b (2). 1824 ACTIONS FOR RENT. | 290 The distinction above indicated, between an action bj' the transferee of the reversion, as being based on privity of contract, and one against the assignee of the leasehold, as being based on privity of estate, is difficult to comprehend. In both cases, it would seem, the action is in a sense based on privity of contract as being brought on the covenant, while it is also in a sense based on privity of estate, in that the right of action or liability on the covenant arises from the ownership of an estate in the land. c. Assumpsit. An action of special assumpsit may be main- tained upon the lessee's express promise to pay a certain sum as rent, provided such promise is not under seal.'^^ It may also be brought upon his express promise to pay a reasonable compensa- tion for the use and occupation of land.^^ To be distinguished from such an action of special assumpsit is that of indebitaius assumpsit, which does not involve proof of an independent ex- press promise, but is based on a legal inference, from the fact that the use and occupation of land is by permission, of a promise to pay the reasonable value thereof.^'' d. Account. In jurisdictions where the action of account still exists, it may, it seems, be under certain circumstances a proper form of action for the recovery of rent.-*^ And a statu- tory action on an account annexed will lie, it has in one state been decided, under circumstances in which formerly assumpsit for use and occupation was the remedy, that is, where there is a lease not under seal or a mere permissive occupation.^^ jn an- sa See cases cited in article by Conn. 425; Long v. Fitzimmons, 1 Prof. Ames, on Assumpsit for Use Vv^atts & S. (Pa.) 530; Gunnison v. and Occupation, in 2 Harv. Law 'Bancroft, 11 Vt. 490; Scott v. Lance, Rev., at pp. 378, 379. And see, also, 21 Vt. 507. In Nedvidek v. Meyer, Hinsdale v. Humphrey, 15 Conn. 46 Mo. 600, it is said that "where 433; Rubens v. Hill, 213 111. 523, 72 riarties have mutual dealings, and N. E. 1127; Trustees of Hocking rent from one to another becomes County V. Spencer, 7 Ohio (2d pt.) the subject of an account between 149; Burnham v. Best, 49 Ky. (10 them, it is recoverable in an action B. Mon.) 227; Sivem v. Sharretts, 48 on account." Citing the case last Md. 408; Johnson v. Muzzy, 45 Vt. above named. 419, 12 Am. Rep. 214. -tsBowen v. Proprietors of the 39 2 Harv. Law Rev. 379. South Building, 137 Mass. 274; 40 See post, § 302. Brown v. Magorty, 156 Mass. 209, 41 See Lockwood v. Lockwood, 22 30 N. E. 1021. § 292 PROCEEDINGS IN EQUITY. 1S25 Other state it has been held that the statutory action of account will lie for the value of the permissive occupation of the premises when there is no agreement as to the amount of rent to be paid,^^ and also when there is a written lease, and this is not produced.** § 291. Under the code procedure. In a large number of jurisdictions, the common-law forms of action having been by statute abolished, the statements made above as to the appropriate forms of action for the recovery of rent, and their distinguishing characteristics in this regard, have no longer any practical application, though an understanding of these characteristics is desirable for a full comprehension of the common-law view of rent. Likewise, in most states, the common- law distinctions, above referred to, between local and transitory actions for rent, have been superseded by statutes directing where suit shall be brought, as, for instance, by provisions that suit shall be brought in the county of the defendant's residence, or where he may be served with process,*** and so if the rent is payable in a certain county, the venue may be de- termined by a provision that an action on a contract shall be brought at the place of performance.*'^ § 292. Proceedings in equity. Equity has occasionally taken jurisdiction of a proceeding by the landlord for the recovery of rent on the ground that the remedy at laAv was inadequate. One case in which equity thui» takes jurisdiction has been already referred to, that is, where the tenant has made a sublease, the court in such case com- pelling the subtenant to pay the rent to the chief landlord, on the theory that the rent should be discharged out of the profits of the land.*6 This theory, that the profits of the land are prop- erly applicable to the payment of rent, and that equity alone can enforce such application, would seem to be the ground on which the jurisdiction of equity may most ordinarily be sought 43 Cameron v. Moore, 10 Ga. 368. 45 See Campbell v. Gates (Tex. 44Burch V. Harrell. 93 Ga. 719, 20 civ. App.) 51 S. W. 268. S. E. 212 44a See University of Vermont v, Joslyn, 21 Vt. 52. L. and Ten 115. 46 See ante, § 181 c, at note 706. 1826 ACTIONS FOR RENT. § 292 and sustained. It cannot, however, be said that this reason for the assumption of jurisdiction clearly appears from the cases, unless it is to be inferred from the fact that the decisions sus- taining the equitable jurisdiction have ordinarily been based on the nonavailability of the remedy by distress in the particular case, the effect of this being to deprive the tenant of one possible mode of securing the application on his rent of the profits of the land. Thus, jurisdiction has been assumed by equity when the remedy by distress was nonexistent owing to uncertainty as to the character of the rent,^^ or owing to uncertainty as to the boundaries of the land out of Avhich the rent issued,^^ or because the rent was reserved out of incorporeal things or other property not subject to distress.*^ The fact that no sufficient distress was found on the premises has been decided to be in- sufficient ground for the interference of equity in the absence of fraud on the part of the tenant,^*^ a view which has, however, been vigorously questioned.^^ In the numerous jurisdictions in which the remedy by distress no longer exists, the absence of such remedy in a particular case cannot, it is plain, have any bearing upon the landlord's right to equitable relief, but the fact that he has or has not one of the statutory remedies substituted for distress, such as a lien on the chattels or crops on the prem- ises,^- or a right of attachment,^^ would probably have a bearing on the question. The fact, in any case, that the landlord has, by statute, or by express stipulation, the right to resume posses- sion of the premises on nonpayment of rent, might of itself, it 4T Collet V. Jacques, 1 Ch. Cas. of incorporeal things. See ante, § 120; Cocks v. Foley, 1 Vern. 359; 169 a. In the third case cited, the Leeds v. New Radnor, 2 Brown Ch. rent was created by the king, and 338, 518. See Lawrence v. Ham- consequently a different rule was mett, 26 Ky. (3 J. J. Marsh.) 287. applied. 48 North V. Strafford, 3 P. Wms. co Davy v. Davy, 1 Ch. Cas. 144; 148 ; Holder v. Chambury, 3 P. Wms. Champernoon v. Gubbs, 2 Vern. 382. 256; Bridgewater v. Edwards, 4 That equity will take jurisdiction Brown Pari. Cas. 139; Benson v. if distress is prevented by fraud, Baldwyn, 1 Atk. 598. see above cn?es, and also Dawson v. 4P Thorndike v. Allington, 1 Ch. "Williams, 1 Freem. Ch. (Miss.) 99. Cas. 79; Busby v. Salisbury, Finch, si See article by Prof. C. C. Lang- 256; Leeds v. Powell, 1 Ves. Sr. 171. dell, 10 Harv. Law Rev. 93. In the first two cases cited, what 52 See post, § 321. was termed a rent was really an b3 See i)OSt, chapter XXXII. annuity, since rent cannot issue out e 292 PROCEEDINGS IN EQUITY. 1827 seems, be ground for a refusal by a court of equity to take juris- diction to aid in the collection of reiit,^^ though in one case, perhaps, a different view has been expressed.^s Equity will not assume jurisdiction in order to impose liability on one other than the lessee, on the ground that he was the actual beneficiary of the lease, and, as such, occupied the land while the lessee was merely his trustee, there being no such liability in the case of a third person not a party to the lease nor a legal assignee thereof.^® The fact that the amount of rent payable by the defendant is uncertain, either because he is a tenant of but a part of the land subject to the lease,^^ or for other reasons,^^ seems to be regarded as ground for the interposition of equity. And the jurisdiction of equity was in one case upheld on the ground that the instru- ment of lease was lost.^® 54 See 10 Harv. Law Rev. 91. bs Livingston v. Livingston, 4 55 Pennsylvania R. Co. v. St. Johns. Ch. (N. Y.) 287, 8 Am. Dec. Louis, A. & T. H. R. Co., 118 U. S. 562; Van Rensselaer v. Layman, 39 290, 305, 30 Law. Ed. 83, where Mr. How. Pr. (N. Y.) 9. In Dawson v. Justice ' Miller says: "Having a Williams, 1 Freem. Ch. (Miss.) 99, valuable contract in regard to the it was held that the fact that the operation of the road for a great lease required the rent to be fixed many years to come, plaintiff (the yearly by appraisers was ground for lessor) cannot be compelled to for- equitable jurisdiction. In Brennan felt it and resume possession and v. Gale, 56 App. Div. 4, 67 N. Y, sue for all its damages in one ac- Supp. 382, it was held that the tion." Here the equitable jurisdic- landlord could ask for an account- tion was sustained on the ground ing. where he was to have the sur- that there were numerous and com- plus, above all profits made by the plex issues, involving demands "for lessee, up to a certain sum. In Jackson an accounting, injunction and spe- v. King, 82 Ala. 432, 13 So. 232, it cific performance of the lessee's was held that the lessor could not stipulations to keep the property sue at law where the compensation in good condition. for the use of the land was to be a 56 Walters v. Northern Coal Min. specific part of the crops for each Co., 5 De Gex, M. & G. 629, disap- year, and the lease was to continue proving Clavering v. Westley, 3 P. until this amounted to sufficient to Wms. 402; Borcherling v. Katz, 37 discharge a certain debt by the les- N J Eq. (10 Stew.) 151. See Ram- sor to the lessee, the determination age v. Womack [1900] 1 Q. B. 116. of this involving complicated ac- 5T Swedesborough Church v. Shiv- counts, ers 16 N. J. Eq. (1 C. E. Green) so Lawrence v. Hammett, 26 Ky. 453 ' (3 J. J. Marsh.) 287. 1828 ACTIONS FOR RENT. § 292 In some cases, equity has taken jurisdiction of a proceeding by the landlord for rent merely because of the tenant's failure to object to the jurisdiction by demurrer or by answer.^^ These decisions have been questioned.^^ The tenant may file a bill of interpleader to ascertain the person entitled to the rent, when it is claimed by each of two persons, both of whom deduce title from the lessor,^^ or one of whom so deduces his title, and the other of vrhom is the les- sor liimself.63 The tenant has no right to file such bill as against the lessor, or one claiming under the lessor, and a third person asserting a claim against him under a title para- mount to the lease, for the reason, in the first place, that the claim of the latter cannot be the same as that of the former, that is, for the rent reserved by the lease, and, in the second place, that even were the latter 's claim valid, this would be no defense to the claim for rent,^^ Nor can one, who has taken leases of the same premises from two adverse claimants of the premises, compel them to litigate the title in an action by one of them for rent.^^ 60 Livingston v. Livingston, 4 165; White Water Valley Canal Co. Johns. Ch. (N. Y.) 287, 8 Am. Dec. v. Comegj-s, 2 Ind. 4b9; Snodgrass 562; Leeds v. New Radnor, 2 Brown v. Butler, 54 Miss. 45; Dodd v. Bel- Ch. 338, 518; North v. Strafford, 3 lows, 29 N. J. Eq. (2 Stew.) 127. P. Wms. 148. See Holder v. Cham- See Williams v. Halbert, 46 Ky. (7 bury, 3 P. Wms. 256. B. Men.) 184, and the admirable 61 1 Story, Eq. Jur. § 684 c. opinion of Sanborn, J., in Standley 62 Cowtan v. V*'illiams, 9 Ves. Jr. v. Roberts, 8 C. C. A. 305, 59 Fed. 107; Clarke v. Byne, 13 Ves. Jr. 383; 836. The decisions in xMcDevitt v. Glaser v. Priest, 29 Mo. App. 1; Sullivan, 8 Cal. 592; Hall v. Craig, Badeau v. Tylee, 1 Sandf. Ch. (N. 125 Ind. 523, 25 N. E. 538. contra, Y.) 270; Seaman v. Wright, 12 Abb. cannot well be supported. The Pr. (N. Y.) 304; McCoy v. McMur- same may be said of the dictum in trie, 12 Phila. (Pa.) 180. See 2 McCoy v. Bateman, 8 Nev. 126. Story, Eq. § 811. 65 Standley v. Roberts, 8 C. C. A. 63 Clarke v. Byne, 13 Ves. Jr. 383; 805, 59 Fed. 836, although the stat- Ketcham v. Brazil Block Coal Co., 88 ute in terms required any person Ind. 515. who has an interest in the contro- 6* Dungey v. Angove, 2 Ves. Jr. versy adverse to plaintiff, or who 310; Clarke v. Byne, 13 Ves. Jr. 383; is a necessary party to a complete Johnson v. Atkinson, 3 Anstr. 798; determination of the question In- Crawshay v. Thornton, 2 Mylne & volved, to be made a party to the C. 1; Crane v. Burntrager, 1 Ind. suit. PARTIES PLAINTIFF. 1829 An injunction will not issue to restrain an action at law for the rent on a ground which may be asserted as a defense to the action.^^* § 293. Parties plaintiff. a Persons beneficially interested. The person entitled to sue for"rent is ordinarily the person who is entitled to receive the rent, by reason of his ownership of the reversion, or of the rent without the reversion.^^^ At common law, as before stated, rent can be reserved only to the lessor,«^'= and consequently a third person to whom the lease attempts to reserve rent cannot sue therefor,^^^ but by a few decisions in this country such third person may recover the rent, on the theory that the agree- ment to pay rent was made for his benefit.«5e One in whom the legal title to the reversion is vested as trustee is ordinarily the proper person to recover rent incident^ to the reversion 65f But in some jurisdictions, in which a right or recovery by a party beneficially interested has been strongly asserted and the distinction between legal and equitable rights has been obscured, a right in the cestui que trust to recover rent reserved on a lease by the trustee might perhaps be recognized. If a lease is made, by an instrument not under seal, by one person as agent for the owner of the premises, and the relation of agency is not disclosed on the face of the instrument, either the principal or the agent may sue on the lessee's contract to pay rent«« the same rule being applicable as in the case of other contracts made with an agent." A disclosed principal may also sue, provided the lessee's contract to pay rent is not under seal, ena Slater v.Schwegler (N. J. Eq.) 21 Ind. App. 614. ^2 N. E 1012; 54 All 937. Murphy v. Hopcroft, 142 Cal. 43, 75 65b See Heclit v. Ferris, 45 Mich. Pac. 567; Bates v. Scheik, 47 Mo. 376, 8 N. W. 82, and ante, § 180 a, b. App. 642. c5cSee ante, § 170, at notes 101- ce Nicoll v. Burke, 78 N. Y. 580. 107. 34 Am. Rep. 561; Manete v. Simp- «5d Southampton v. Brown, 6 ^^^^^ 39 ^ y. St. Rep. 617, 15 N. Y. Bvivn. & C. 718; Berkeley v. Hardy, g^^^ ^^g. Philadelphia Fire Ex- 5 Barn. & C. 355. tinguisher Co. v. Brainerd, 2 Wkly. cseSee ante, § 170. at note 108- ^^^^^ ^^^ ^p^^ ^^3. g^yant v. 109. Wells. 56 N. H. 152. G5f See Chapin v. Foss, 75 111. 280, ,„ . r^ >, ,,%. ^^^^r 1Q9 m 104 er See ante, § 56 b. Harms v. McCormick, 132 ill. wi, 22 N. E. 511; Patterson v. Emerick, 1830 ACTIONS FOR RENT. § 293 and this is a fortiori the case if the principal is named in the instrument as the lessor.^^ And the agent for a disclosed prin- cipal may sue, it seems, provided the lease is made in the name of the agent and it can consequently be inferred that the con- tract was to pay rent to hira.*^^ In the case of an instrumcni of lease executed by an agent in his own name and under seal, he alone is authorized to sue for the rent,'^'' and a statute autliorizing actions by the real party in interest does not enable the principal to sue in such case, unless perhaps his title has been in some way recognized by the lesseeJ^ b. Transferees. In case of a transfer of the reversion, the transferee is the proper person to sue for rent thereafter ac- cruing, as being the person entitled thereto,'^^ unless the person making the transfer reserves the rent, in which case the latter is the person to sue.'''^ If the rent is transferred without the rever- sion, the transferee is the person entitled to sue.'^'* The right to rent to accrue in the future was never regarded as a chose in action at common law, within the rule precluding the assignee of a chose in action from suing thereon in his own name, and con- sequently the transferee of the rent without the reversion could always sue therefor. But an installment of rent which is already due is a chose in action and nothing more, and, consequently, one taking an assignment of such an installment after it was due could not, at common law, sue therefor in his own nameJ^ esHuffcut, Agency, §§ 164, 165. ^4 pfafE v. Golden, 126 Mass. 402; But see Harms v. McCormick, 132 Wineman v. Hughson, 44 111. App. 111. 104, 22 N. E. 511. 22; Willard v. Tillman, 2 Hill (N. 69HufEcut, Agency, § 208. Y.) 274; Moffatt v. Smith, 4 N. Y. (4 70 Harms v. McCormick, 132 111. Comst.) 126; Hunt v. Thompson, 84 104, 22 N. E. 511; Melcher v. Krei- Mass. (2 Allen) 341; Bowman v. ser, 28 App. Div. 362, 51 N. Y. Supp. Keleman, 65 N. Y. 598; Demarest v. 249. See Sanborn v. Randall, 62 N. Willard, 8 Cow. (N. Y.) 206 (Action H. 620, and ante, § 56 a. on covenant) ; Ards v. Watkin, Cro 71 Schaefer v. Henkel, 75 N. Y. Eliz. 637, 651; Allen v. Bryan, 5 378. In Berkeley v. Hardy, 5 Barn. Barn. & C. 512. & C. 355, it was decided that, when Marcum v. Hereford, 38 Ky. (8 the lease was made in the agent's Dana) 1, and Hicks v. Doty, 67 Mass. name, the principal could not sue (4 Bush) 420, seem to take the for the rent, though it was express- view that one to whom rent there- ly made payable to him. after to accrue is assigned cannot 72 See ante, § 180 b. sue therefor, apart from statute. 73 See ante, § 180 c (1). 75 Lewes v. Ridge, Cro. Eliz. 863; § 293 PARTIES PLAINTIFF. 1831 In most jurisdictions, however, the rule forbidding an assignee- of a chose in action to sue thereon has been changed by statute, and so the assignee of rent already due may sue therefor in his own name, as may any other assignee of a chose in action. c. Persons jointly entitled. If tenants in common make a joint demise for years, reserving one entire rent, they may, at common law, join as plaintiffs in an action of debt for the rent,'''^ or each may, it seems, bring a separate action of debt for his share.'^'^' Tenants in common entitled to rent, not as being the original lessors but as having obtained the reversion by transfer from the lessor, must sever, it seems, for the purpose of an ac- tion of debt,'^^ and this must be done by tenants in common who make separate demises of their undivided shares, with a moiety of the rent payable to each.'^^ The question whether tenants in common, who join in making a lease, should join in an action on the covenant for rent, is determined by the same considerations as control in the case of any other contract made with two or more persons^^* They must all join as plaintiffs if it is joint, while if it is a several covenant, that is, if it is in effect a separate covenant with each, they cannot join, but must sue separately .'^^^ AVhether it is one or the other is to be determined by considering not only the language used, but also the interests of the parties.^*^ Ordinarily a covenant to pay rent will, in such a case, be a joint covenant, Canhan v. Rust, 8 Taunt. 227; Bur- lessor may sue alone in debt for his den V. Thayer, 44 Mass. (3 Mete.) share of the rent, see Hare v. Proud- 76, 37 Am. Dec. 117; Demarest v. foot, 6 U. C. Q. B. (0. S.) 617. Willard, 8 Cow. (N. Y.) 206. See to powis v. Smith, 5 Barn. & Aid. Lord V. Carnes, 98 Mass. 308. 851; Wilkinson v. Hall, 1 Bing. N. 76Midgley v. Lovelace, Carth. 289; C. 713. Martin v. Crompe, 1 Ld. Raym. 341; 79a Dicey, Parties, 112; Hammon, Decker v. Livingston, 15 Johns. (N. Contracts, 770. Y.) 479. See 1 Piatt, Leases, 133. 7ob See Comyn, Landl. & Ten. 455; 77 Midgley v. Lovelace, Carth. 1 Piatt, Leases, 134; Eccleston v. 289, Holt. 74; Martin v. Crompe, 1 Clipsham, 1 Wms. Saund. 153, and Ld. Raym. 341; Harrison v. Barnby, notes; Foley v. Addenbrooke, 4 Q. B. 5 Term R. 246. See Powis v. 197; Marys v. Anderson, 24 Pa. 272; Smith. 5 Barn. & Aid. 850, 1 Dow. & Bryant v. Wells, 56 N. H. 152; R. 490. Churchill v. Lammers, 60 Mo. App. 7s Huntley's Case, 3 Dyer, 326 a, 245. 1 And. 21; 1 Piatt, Leases, 134. so See ante, § 52. That each of several devisees of the 1832 ACTIONS FOR RENT. § 293 in a suit on which all the covenantees must join, since a l)reach of the covenant as to one is a breach as to all, and, consequently, their interests in its performance are joint, and this has been held to be the case even when it is expressly stated what share of the rent is to be paid to each, as when it is reserved to them "according to their several and respective rights and in- terests."^^ Tenants in common who are such by acquisition of undivided interests in the reversion from the original lessor or lessors may, it is held, either join or sever in suing on the cove- nants which run with the land, among which is that for rent,^- their contract being joint and their interests several.^^ In case of a demise by joint tenants, as distinct from tenants in common, reserving an entire rent, one of the lessors alone cannot sue therefor in debt,^^ and they must, it seems, like tenants in common, join in a suit on a joint covenant made with both or all of them, though it is otherwise if the covenant is several in its nature.^^ d. On death of person entitled. In case of the death of the landlord the right to rent already due passes to his personal siPowis V. Smith, 5 Barn. & Aid. ley, 21 N. Y. 280; 1 Piatt, Leases, 850; Wallace v. McLaren, 1 Man. & 135; Addison, Contracts (10th Ed.) R. 516 (semble); Tylee v. McLean, 218. That each owner of the rever- 10 Wend. (N. Y.) 374; Wall v. Hinds, sion may in such case sue separ- 70 Mass. (4 Gray) 256, 64 Am. Dec. .itely, see Cole v. Pattison, 25 Wend. 64. This is in accordance with the (N. Y.) 456; Jones v. Felch, 16 N. general rule that a separation of in- Y. Super. Ct. (3 Bosw.) 63; Bowser terests of covenantees is not created v. Cox, 3 Ind. App. 309, 29 N. E. 616; by a statement as to the proportions Henniker v. Turner, 4 Barn. & C. to be taken by each. Lane v. Drink- 157. water, 1 Cromp. M. & R. 599; Byrne In Cantwell v. Moore, 44 111. App. V. Fitzhugh, 1 Cromp. M. & R. 597. 656, it was decided that grantees of But a contrary view, to the effect the lessors could sue jointly, though that when the proportion of rent the latter, at the time of making the payable to each lessor is stated, each joint lease, owned separate portions may sue separately therefor, is of the land, and each conveyed to adopted in Gray v. Johnson, 14 N. one of the plaintiffs his separate H. 414. portion. 82 Midgley V. Lovelace, Carth. 289; 83 See Roberts v. Holland [18931 latchen V. Buckly, 1 Lev. 109; 1 Q. B. 665; Piatt, Covenants, 130. Wormersley v. Dally, 26 Law J. 84 Bac. Abr., Joint Tenants (K) ; Exch. 219; Harrison v. Barnby, 5 1 Plan, Leases, 127. See Litt. § Term R. 246. See Martin v. Crompe, 311; Co. Litt. 180 b. 1 Ld. Raym. 341; Marshall v. Mose- ss Welnsteine v. Harrison, 66 Tex. „ 293 PARTIES PLAINTIFF. 1833 representative, and that thereafter falling due ordinarily passes with the reversion to the heir or devisee, nnless the reversion itself is personalty, when it passes to the personal representa- tives.8«. 87 An action for the rent is properly brought by the person or persons so entitled. In case of the death of one of two or more persons to whom the reversion belongs as tenants in common, his undivided mterest, if freehold in character, passes to his heir or devisee,^^ and the rioht to recover a proportionate share of the rent passes to the latter along with such undivided interest,^^ and he may sue there- for in debt ^^ Whether the heir or devisee of the undivided in- terest of a tenant in common has a right of action in covenant, as well as in debt, that is, upon the privity of contract as well as upon that of estate, does not clearly appear from the ca^es, but that he may sue on the covenant would seem to be a necessary result of the principle that the covenant for rent runs with the land 91 In one case, however, it is apparently decided that, such a covenant being made jointly with all the tenants in common, upon the death of one the right of action vests exclusively m the survivor or survivors,^- this according with the rule which ap- 546 1 S W 626; Churchill v. Lam- and the general language of the mers. 60 Mo. App. 244. later case favors the view that the 80.87 See ante, § 180 g. right of action on the covenant to 88 Roberts V. Holland [1893] 1 Q. pay rent vests in the survivor, to the g gg5 exclusion of the heir or devisee of 89 Beer v. Beer, 12 C. B. 60; 1 the deceased tenant in common. Piatt Leases, 13i. The language of Byles, J., in Thomp- 90Burne v.' Cambridge, 1 Moody son v. Hakewill, 19 C. B. (N. S.) & R 539- Beer v. Beer, 12 C. B. 60. U3. would seem to make it a ques- 9iThat a covenant may run with tion of construction whether the an undivided interest in the rever- right to sue on a covenant in favor sion see Midgley v. Lovelace, Carth. of tenants in common shoulu, on the 289-' Thompson v. Hakewill, 19 C. death of one, vest in the survivor, B (N S ) 713- Roberts v. Holland to the exclusion of the heir or de- 11893]' 1 Q. B. 665. visee. In Codman v. Hall, 91 Mass. 92 Wallace v. McLaren, 1 Man. & (9 Allen) 335, it is decided that, on R 516 The statement by Williams, the death of one of the three joint J in the later case of Beer v. Beer, owners who made the lease, "the 12 C B 73 that the remark, in the cause of action for rent, or for use earlier case, that the survivor may and occupation, survived to the sue for the whole, is unnecessary to other two." the decision, seems questionable. 1834 ACTIONS FOR RENT. § 294 plies ordinarily in the ease of a eontract made with several per- sons jointly.^3 e. Stiitiitory provisions. The common-law rules as to the proper persons to sue for rent, or to join in an action therefor, are modified in many of the states by the codes of procedure and the practice acts providing for the prosecution of all actions in the names of the real parties in interest, and authorizing the joinder as plaintiffs of all persons having an interest in the sub- ject-matter of the action and in the relief sought to be obtained. § 294. Parties defendant. a. Joint or several liability. At common law a covenant for rent is, like any other contract, in its nature joint as to the cove- nantors, unless it is so expressed as to be several, or joint and several, and the action must be brought against all the covenan- tors, except in certain cases, as when one of them is dead, or is out of the jurisdiction, or is bankrupt.^* The covenant may, however, be so phrased as to impose on the covenantors a lia- bility both joint and several, in which case the covenantee has the option of suing either one or all of the covenantors,^'^ or it might be so expressed as to impose merely a several liability, in which case the covenantors must be sued separately.^^* A covenant is not several rather than joint because the demise is expressed to be to the covenantors "as tenants in common, and not as joint tenants," nor because they covenant that "they, or some or one of them, their executors, administrators or assigns," will pay the rent.^^ In a number of states it is provided by statute that con- tracts which would at common law be joint contracts shall be construed as joint and several contracts, and such a provision would presumably apply to a covenant for rent, as would, pre- sumably, the provision found in many states authorizing the 93 See Leake, Contracts, 376; 05 LiHy v. Hodges, 8 Mod. 166; Hammon, Contracts, 763, and ante, Enys v. Donnithorne, 2 Burrow, § 55 b. 1190; Northumberland v. Errington, 9i Dicey, Parties, 230; Hammon, 5 Term R. 522. Contracts, 758, 769; 15 Enc. Pldg. "sa See ante, § 52. & Prac 548, 556; Comyn, Landl. & sc White v. Tyndall, 13 App. Cas. Ten. 457. 263. PARTIES DEFENDANT. 1835 joinder of two or more persons severally liable upon the same instrument or obligation.^"^ . b On assignment of leasehold. In case of an assignment of the leasehold, either the lessee or the assignee is a proper party defendant to an action for rent, the first being liable by reason of privity of contract,^^ and the second by reason of privity of estate.^s-^ The landlord may at common law sue, at his election, either the lessee or the latter 's assignee, the former in covenant, on the privity of contract,^«^ the latter either m debt on the privity of estate,^^'^ or in covenant, on the privity of contract based on the privity of estate.^^ If, however, he sues both the lessee and the latter's assignee, he can issue execu- tion against one of them only.i^o In case the lessee assigns the leasehold interest m part of the premises, the assignee is, as before stated, liable m propor^ tion to the value of the premises of which he becomes the tenant and is a proper defendant in an action to enforce such liability He may be sued without the joinder of those who may be liable for the balance of the rent as being tenants of the other part of the premises 102 and it would seem that it is improper to join them, the liability of each for his share of the rent being .several and independent of that of the others.i"^ c On death of person liable. In case of the death of a sole tenant of the premises, his personal representative is, sub- ject to some limitations heretofore referred W^ liable for the rent thereafter accruing, and is consequently the proper party defendant to an action for rent. At common law, if a lease is made to two or more persons, one of whom dies, no portion of the liability on the covenant for rent, regarded as a joint covenant by the lessees, passes to 97 See 15 Enc. Pldg. & Prac. 741, 101 See ante. § 181 b. at notes 677. 744 ^'^^• OS See ante § 181 a. at note 653. 1^2 Van Rensselaer v. Bonesteel, 9sa see ante. § 181b. 24 Barb. (N. Y.) 365. «sbSeeante, § 181 a, atnote653. "^ See Bowdre v. Hampton. 6 .80 See ante, § 181 b, at note 665. Rich. Law (S. C.) 208; Van Rens- 99 See ante, § 181 b, at notes 670- selaer v. Layman. 39 How. Pr. (N. Y ) 9 But Hannen v. Ewalt, 18 Pa. 673. ' 100 See 2 Piatt, Leases, 356; 9, is to the contrary. Comyn, Landl. & Ten. 270; Brett v. 104 See ante. § 181 c. Cumberland. Cro. Jac. 523. 1836 ACTIONS FOR RENT. §204 the personal representative of the deceased, but the whole lia- bility is imposed on the survivors, this being the general rule in case of the death of a joint contractor.' os Iq a number of juris- dictions, however, this common-law rule, that the surviving con- tractor or contractors are liable, to the exclusion of the repre- sentatives of the deceased contractor, has been changed by stat- ute ; and even at common law, if the promise to pay rent can be construed as a several promise, or as a joint and several prom- ise, a different rule applies, and the representative of the de- ceased promisor is liable thereon. '^^ Though the personal representative of the deceased joint contractor is, under the above rule, not liable on the covenant for rent by reason of his possession of assets of the estate, never- theless, if a part interest passes to him,'^^ ^nd he enters on the premises, he is, it seems, liable for a proportionate part of the rent as the assignee of an undivided interest in the term.i"^ If the leasehold vests in two or more persons by assignment, and one of them thereafter dies, the liability for his share of the rent would seem to pass to his executor, as assignee of the term, provided the executor enters, of which liability, however, he may divest himself by an assignment to another.'o^ d. Persons asserting title. It has been held that where the defendant in an action for rent has been sued for damages for his occupation of the premises by a third person claiming to be the real owner, such third person should be made a party, under a statute providing that when a complete determination of a con- troversy cannot be affected without the presence of other parties, the court must cause them to be brought in.iio But ordinarily a third person claiming under paramount title, even though the tenant has attorned to him, is not a proper party to an action 106 See Hammon, Contracts, 761; day, took the leasehold Interest as Dicey, Parties, 237; White v. Tyn- tenants in common, and not as joint dall, 13 App. Cas. 263, and ante, § tenants with the right of survivor- 55 a, at note 84. ship. 106 White V. Tyndall, 13 App. Cas. los See ante, § 181 c, at note 699. 263; Enys v. Donnithorne, 2 But- io9 See ante, § 181 c, at notes 699, row, 1190. See Hammon, Contracts, 702. 765, 767; Dicey, Parties, 238. "o McKesson v. Mendenhall, 64 N. 107 That is, if the lessees, as they C. 286. would ordinarily do at the present §294 PARTIES DEFENDANT. 1837 against the tenant for rent, since the question of title is not an issue in such an action.^^^ e. Guarantors and sureties. At common law, a guarantor of the performance by the lessee of his contract to pay rent cannot be joined with the lessee or tenant in an action for rent, the contract of guaranty being entirely separate frcm the contract for rent.112 On the other hand, one who enters into a contract of suretyship for the lessee's performance of his covenant may be sued jointly with the latter, unless the liability of the princi- pal and surety is expressly made several and not joint,!^' and if it is joint, and not several, nor joint and several, they must be sued together, as must any joint contractors.^!^ The rule that a guarantor cannot be joined with the principal debtor as a joint defendant has in some states been regarded as changed by the statutory provision, frequently found, that two or more persons severally liable upon the same written instru- ment or obligation may all be included in one action at the option of the plaintiff,!!^ and it has accordingly been decided that under such a statute a lessor may join in one action the lessee and one who guaranteed the performance of the lessee's cove- in Hill V. Williams, 41 S. C. 134, of the lease "guaranteed" the pay- 19 S. B. 290. See Standley v. Roberts, ment of rent as it fell due, it was 8 C. C. A. 305, 59 Fed. 836, and ante, held that he might be sued jointly at note 65a. with the lessee. This seems to have 112 Virden v. Ellsworth, 15 Ind. been properly a contract of surety- 144; Cross v. Ballard, 46 Vt. 415; ship rather than of guaranty, since Tumey v. Penn, 16 111. 485; Tourte- the person so joining was a party to lott V. Junkin, 4 Blackf. (Ind.) 483. the original contract. In Preston v. In the two latter cases, though the Huntington, 67 Mich. 139, 34 N. W. contract is spoken of as one of sure- 279, it was decided that one who, tyship, it seems to have been one of by an endorsement on the instru- guaranty, strictly ppeaking. ment of lease, executed on the same 113 This is the general rule in the date, stated that he became surety case of contracts of suretyship, for the punctual payment of the Castner v. Slater, 50 Me. 212; Lee rent, and that in case of default he V. Bolles, 20 Mich. 46; Oxford Bank would pay the rent due, was a surety, V. Haynes, 25 Mass. (8 Pick.) 423, 19 and could be sued jointly with the Am. Dec. 334; Gaff v. Sims, 45 Ind. principal. 262; McMillan v. Bull's Head Bank, n* City of Philadelphia v. Reeves, 32 Ind. 11, 2 Am. Rep. 323. 48 Pa. 472. In McLott V. Savery, 11 Iowa, 323, ns See 16 Enc. Pldg. & Prac. 942. where one joining In the execution 1838 ACTIONS FOR RENT. § 295 nant by words to that effect in the instrument of lease, which was signed by him.^^^ But such a statute does not authorize an action against two sureties jointly if their liability is for differ- ent demands, as when each of two tenants is to pay half the rent, and each surety is liable for one tenarft's share of the rent.^^'' It has been decided that a separate writing annexed to the in- strument of lease does not impose a liability "upon the same written instrument" within the statute,^^® though in another jurisdiction, where the statute authorized the joinder of persons severally liable upon the same obligation or instrument, "includ- ing sureties on the same instrument," one who guaranteed the lessee's contract by an endorsement on the lease could, it was held, be sued with him.i^* § 295. Pleading. At common law, in an action of debt for rent, even though the rent was reserved by deed, it was unnecessary to set out or recite the deed in the declaration, it being regarded not as the gist of the action, but as merely inducement.^20 ■Q■^J^^ jf ^j^g decla- ration undertook to recite the important parts of the deed and the particulars of the demise, any substantial variance in thi^. regard was fatal.^^i it -^rj^s necessary, in an action of debt, to allege the reservation of the rent^-- and the time at which it became due.^^"^ In an action of covenant it was necessary to show that the writing upon which the action was brought was a deed, that is, was under seal,^^* j^ being sufficient, in this regard, however, to aver that it was an indenture.125 j^ -y^^s also necessary, in lie Carman v. Plass, 23 N. Y. 286; 121 Bristow t. Wright, 2 Doug. 665, Decker v. Gaylord, 8 Hun (N. Y.) and note; Sands v. Ledger, 2 Ld. 110. Raym. 792. 117 Southmayd v. Jackson, 15 Misc. 122 Parker v. Harris, 1 Salk. 262; 476, 37 N. Y. Supp. 201. com. Dig., Pleader (2 W. 14). 118 Phalen v. Dingee, 4 E. D. Smith ^^^ ^ ^^ ^^ (N. Y.) 379; T.bbits V. Percy, 24 Barb. (N. Y.) 39. 119 Lucy V. Wilkins, 33 Minn. 21, '-"Southwel v. Brown, Cro. Eliz. 21 N. W. 849. ^'^^• i2oComyn, Landl. & Ten. 430; 1 1^5 Moore v. Jones, 2 Ld. Raym. Wms. Saund. 276, note (1) to Duppa 1536. V. Mayo. § 295 PLEADING. 1839 such an action, to state the making of the lease, to set out the covenant for rent, and to aver the breach thereof.^ -^ The statement or suggestion occasionally made at the pres- ent day, that there must be an averment of a promise to pay the rent,^27 jg jjq doubt correct if the action is covenant or assumpsit, or can be regarded as the statutory equivalent thereof. If, how- ever, the action is one of debt, or can be regarded as the equiva- lent thereof, and there seems ordinarily no objection to so re- garding it, no necessity exists of averring a promise, the action being based upon the reservation of the rent and enjoyment of the land.128 The declaration or complaint must always, at the present day, as at common law, either by express statement or necessary im- plication, aver that the installment or installments of rent sued for are past due.^^a If the action is not between the original parties to the lease, the declaration or complaint must show how, by assignment or otherwise, the plaintiff became entitled to the rent or the de- fendant became liable therefor.^^o j^^^i j^ j^^s been held that, though the landlord alleges an assignment of the leasehold in the whole premises, he may prove an assignment of the leasehold 126 Comyn, Landl. & Ten. 463. ment of the rent, the entry of de- "In an action of covenant for non- fendant, and the breach in not pay- payment of rent, it is sufficient to al- ing so much rent due." 1 Wms. lege in the declaration that the Saund. 233 a, note (2). plaintiff, on such a day and year, at 127 Burgess v. American Mortg. Co., such a place, by a certain indenture 115 Ala. 408, 22 So. 282; Vestal v. made between him of the one part Ctaig, 25 Ind. App. 573, 08 N. E. 752; and the defendant of the other part Ramsey v. Johnson, 7 Wyo. 392, 52 (which the plaintiff brings here into Pac. 1084, 40 L. R. A. 690. court), demised to the defendant cer- 128 gee ante, at notes 11, 12. tain premises particularly mention- 129 gee Mason v. Seitz, 36 Ind. 516; ed and described in the said inden- Elmer v. Land Creek Tp., 38 Ind. 56; ture (instead of setting out the par- Dubois v. Van Orden, 6 Johns. (N. eels, as is too frequently done) ex- Y.) 105; Van Rensselaer v. Bradley, cept as therein is excepted, to hold 3 Denio (N. Y.) 135, 45 Am. Dec. the same to the defendant, except, 451; Ramsey v. Johnson, 7 Wyo. 392, etc., for a certain term therein men- 52 Pac. 1084, 40 L. R. A. 690. tioned and still unexpired, yielding iso Willard v. Tillm.an, 2 Hill (N. the rent of * * * payable on, etc., Y.) 274; Comyn, Landl. & Ten. 430; 2 and then state the covenant for pay- Chitty, Pleading (13th Am. Ed.) 564. 1840 ACTIONS FOR RENT. § 295 jn part only, so as to impose a merely partial liability for rent upon the assignee.^^i It is not necessary for the plaintiff to aver that he, or his predecessor in title, was the rightful owner of the premises at the time of the lease, since this has no bearing upon the liability for rent.^32 Since the liability for rent under an express reservation thereof, or under a covenant to pay rent, is not dependent upon occupancy by the lessee,^^-" it is not necessary to allege such occupancy.^33 ^q^ is it necessary, in an action against an as- signee of the lease, to allege that he took possession under the assignment, such taking of possession not being requisite for the imposition of liability on him.^34 It has been asserted that the declaration must state the time of the commencement and the duration of the lease.' ^^ "Whether 131 Van Rensselaer t. Jones, 2 Barb. (N. Y.) 643. i32Havemeyer v. Switzer, 15 Misc. 629, 37 N. Y. Supp. 352; Kiernan v. Terry, 26 Or. 494, 38 Pac. 671; Ayotte V. Johnson, 25 R. I. 403, 56 Atl. 110; Stephen, Pleading (9th Am. Ed.) 327, and ante, § 78 c (3). 132a See ante, § 182 b. 13S Bellasis v. Burbriche, 1 Ld. Raym. 170; Douglass v. Branch Bank of Mobile, 19 Ala. 659, 54 Am. Dec. 207; Marix v. Stevens, 10 Colo. 261, 15 Pac. 350; Mayer v. Lawrence, 58 111. App. 194; Havemeyer v. Switzer, 15 Misc. 629, 37 N. Y. Supp. 352; Wes- ton V. Ryley, 15 Misc. 638, 37 N. Y. Supp. 216; Gilhooley v. Washington, 4 N. Y. (4 Comst.) 217. In Mulford V. Young, 6 Ohio, 294, it is said that the declaration must state that de- fendant enjoyed the premises, or that the lessor tendered him the enjoy- ment. No authority is cited for the statement. In Bellasis v. Burbriche, 1 Ld. Raym, 170, 1 Salk. 208, a ten- ancy at will is distinguished in this respect from a tenancy for years, it being said that, as against a tenant at will, occupation must be averred, since It is by reason of such oc- cupancy that he is liable. But this can be so only when "the tenant is chargeable merely in respect of his occupation." See Comyn, Landl. & Ten. 430. If a tenant at will has agreed to pay rent, he is, it seems, liable by his agreement, and his oc- cupancy is necessarily immaterial. See ante, § 182 b, at notes 829, 829 a. 134 Comyn, Landl. & Ten. 467; Wil- liams V. Bosanquet, 1 Brod. & B. 238. The decision in La Dow v. Arnold, 14 Wis. 458, that an averment of occupa- tion by the assignee is necessary, is based on the theory that such occu- pation is necessary to the imposition of liability on the assignee, a view which is not in accord with the au- thorities generally. See ante, § 158 a (2) fe). ■" 135 Pendill v. Neuberger, 64 Mich. 220, 31 N. W. 177. See Post v. Blaze- witz, 13 App. Div. 124, 43 N. Y. Supp. 59. As to averments in an action for § 295 PLEADING. 1841 this was necessary at common law may be doubted, provided the declaration showed that the rent accrued during the ten- ancy.i^^ It is, however, and always has been, a proper and usual averment, and a variance in the regard might be fatal, if not removed by amendment.^^? It is not, it seems, ordinarily necessary to state whether the lease, or the stipulation as to rent, was written or oral, even though a writing is necessary ,i38,i39 i^^t in a common-law ac- tion of covenant it is necessary to state, expressly or by impli- cation, that the promise to pay rent was in writing and under seal.^^° Under some of the codes of procedure an averment m this regard might be necessary, and so it has been decided that when the statute requires a declaration on a written in- strument to set out a copy, or the legal effect thereof, with proper averments to describe the cause of action, the declaration must allege whether the rent claimed is due under a written instrument.^ ^^ It was unnecessary, under the common-law system of plead- ing, to describe the premises, either in an action of debt or of covenant.^^2 Ordinarily, under the code procedure, a brief de- scription of the premises leased is included in the complaint, if the lease is not set out therein in extcnso, but such a description seems no more necessary in an action under the codes than at common law.^^^ If the complaint does undertake to describe the rent accrued during an extension of gested, be proven under an aver- the lease, see Crystal Ice Co. v. Mor- ment of a written lease, or the mis- ris, 160 Ind. 651, 67 N. E. 502; Kram- statement might be cured by amend- er V. Cook, 73 Mass. (7 Gray) 550. ment. Thomas v. Nelson, 69 N. Y. 136 See Comyn, Landl. & Ten. 430. 118. 463; Turner V. Lamb, 14 Mees. & W. i4o See Piatt, Covenants, 546; 1 412. Chitty, Pleading, 364. The date of the lease, as named In i4i Bumham v. Roberts, 103 Mass. the complaint, has bee» said to be 379. immaterial. Woodruff v. Butler, 75 1421 Wms. Saund. 233; Comyn, Conn. 679, 55 Atl. 167. But a differ- Landl. & Ten. 430; Davies v. Ed- ent view is taken in Locke v. Ken- wards, 3 Maule & S. 380; Van Rensse- nedy, 171 Mass. 204, 50 N. E. 531. laer v. Bradley, 3 Denio (N. Y.) 135, 137 See Locke v. Kennedy, 171 Mass. 45 Am. Dec. 451; Miller v. Blow, 68 204, 50 N. E. 531. 111. 304. 138, 130 See Browne, Stat, of Frauds, 1*3 But a motion to make the com- § 505; 1 Chitty, Pleading, 303. An plaint more definite in this respect oral lease might, it has been sug- might be entertained. See Post v. L. and Ten. 116. 1842 ACTIONS FOR RENT. § 296 premises, an error in this regard is fatal, unless corrected by amendment.^ ^•^ § 296. Set-off, recoupment, and counterclaim. Under the statutes of set-olf and counterclaim existent in most jurisdictions, by which a defendant in an action on a con- tract is allowed to assert, in reduction of plaintiff's demand, a cross demand of a contractual character against the plaintiff, the defendant in an action for rent, regarding it as an action on the contract to pay, imiy no doubt assert cross demands of a contractual character, subject to the restrictions which may exist under the particular statute as regards unliquidated claims. That he may or may not do this seems, however, to have been rarely the subject of express decision,!-*^ and the discussion as to the right of the tenant to assert a cross demand has centered rather upon the question whether such demand is one which is so connected with the contract, transaction, or subject-matter involved in the suit, as to be a proper subject for "recoupment," as distinguished from "set-off," or its statutory equivalent. The later cases in this country are practically in unison in holding that in an action for rent the defendant may, even apart from statute, recoup the damages caused by the plain- tiff's breach of any covenant of the lease,^'*^ a doctrine which Blazewitz, 13 App. Div. 124, 43 N. Y. i^s That he may do so is recogniz- Supp. 59; Gust.aveson v. Otis, 57 N. ed in Fillebrown v. Hoar, 124 Mass. Y. St. Rep. 797, 27 N. Y. Snpp. 280. 5S0; McVicker v. Dennison, 45 Pa. H4 Hoar V. Mill, 4 Maule & S. 470; 390; Nickols v. Jones, 16G Pa. 599, 31 Morgan v. Edwards, 6 Taunt. 394; Atl. 329; Koegel v. Michigan Trust Miller v. Blow, 68 111. 304. Co., 117 Mich. 542, 76 N. W. 74; Hurst In Morningstar v. Querens, 142 v. Benson, 27 Tex. Civ. App. 227, 65 Ala. 186, 37 So. 825, it was decided S. W. 76. Compare Nichols v. Dusen- that when the complaint described bury, 2 N. Y. (2 Comst.) 283. the property as "the building which i46 Horton v. Miller, 84 Ala. 537, 4 was on the date of the demise of said So. 370; City of New York v. Mabie, property occupied by A as a grocery 13 N. Y. (3 Kern.) 157; Kelsey v. store," not averring that A was the Ward, 38 N. Y. 83; Ely v. Spiero, 28 exclusive occupant, evidence of a App. Div. 485, 51 N. Y. Supp. 124; El- lease which described the property wood v. Porkel, 35 Hun (N. Y.) 202; as the building "which is now oc- Brittain v. Griggs, 88 Ga. 232, 14 S. cupied in part by A as a grocery and E. 609; Crane v. Hardman, 4 E. D. B as a saloon" did not involve a Smith (N. Y.) 339; Hirsch v. Olmes- variance. dahl, 38 Misc. 757, 78 N. Y. Supp. 832; , 296 SET-OFF AKD RECOUPMENT. 1843 has been applied with especial frequency in the case of breach by the landlord of a covenant to repair the premises or to make improvements thereon.i^^ Such a claim for breach of covenant has also been regarded as arising out of the contract or transac- tion set forth in the complaint and as connected with the sub- ject of the action, within the meaning of the statute of counter- claim.148 Likewise, damages for breach of a covenant for quiet Stewart v. Lanier House Co., 75 Ga. Supp. 891; Young v. Burhans, 80 Wis. 582; Pepper v. Rowley, 73 111. 262; 438, 50 N. W. 343; Wilkerson v. Bloodworth V. Stevens. 51 Miss. 475; Farnham. 82 Mo. 672; Meredith Me- Pickens V. Bozell, 11 Ind. 275. WHere chanics' Ass'n v. American Twist the statute expressly confines the Drill Co.. 67 N. H. 450 39 right of recoupment to an action on Atl. 330; New York & Texas a contract not under seal, the lessee Land Co. v. Cruger (Tex. Civ. App ) under a sealed lease cannot, it has 27 S. W. 212; Coleman v. Bunce 37 been decided, recoup for the land- Tex. 171; Breese v. McCann, 52 Vt. lord's breach of covenant. Price's 498; Prescott v. Otterstatter, 85 Pa. Ex'r V. Reynolds, 39 N. J. Law. 171; 534; Cheuvront v. Bee. 44 W. Va. 103. Hunter v. Reiley. 43 N. J. Law, 480. 28 S. E. 751; Beardsley v. Morrison. Where the lessor covenants that 18 Utah. 478. 56 Pac. 303. 72 Am. St. the lessee shall have the right to re- Rep. 795; Westlake v. DeGraw. 25 move fixtures annexed by him. the Wend. (N. Y.) 669; Whitbeck v. lessee may counterclaim for damages Skinner, 7 Hill (N. Y.) 53; McCoy in case the lessor prevents their re- v. Oldham, 1 Ind. App. 372. 27 N. E. moval Bruce v. Welch, 6 N. Y. St. 647, 50 Am. St. Rep. 208; Deuster v. Rep 617 He cannot do so, it ap- Mittag, 105 Wis. 459, 81 N. W. 643. Dears if the lease contains no cove- In Union Water Power Co. v. Pin- nant 'on the subject, although the gree. 91 Me. 440. 40 Atl. 333. it was lessee has the right to remove them decided that when the lessor failed because they are trade fixtures, the to reconstruct the thing leased after le-^see's claim for damages being in its destruction by fire, as required by such case founded on tort. City of his covenant, such breach of cove- New York V. Parker Vein Steamship nant could be set up by way of re- Co 21 How Pr (N. Y.) 289. coupment in an action for the rent, i'47 Culver V. Hill, 68 Ala. 66. 44 and that it would, in the absence Am Rep 134- Vandegrift v. Abbott, of evidence to the contrary, be pre- 75 Ala 487- Varner v. Rice. 39 Ark. sumed that the rent for the period 344- Lewis' v Chisolm, 68 Ga. 40; after the destruction and the dam- Lunn V. Gage. 37 HI. 19. 87 Am. Dec. ages accruing from failure to repair 235- Kiernan v. Germain. 61 Miss, were equal. 498- Myers v. Burns, 35 N. Y. 269; i48 Cook v. Soule. 56 N. Y. 420; Reiner v. Jones, 38 App. Div. 441. Pioneer Press Co. v. Hutchinson. 63 56 N. Y. Supp. 423; Uhlfelder v. Minn. 481, 65 N. W. 938. Loughran, 54 Misc. 593. 104 N. Y. 1844 ACTIONS FOR RENT. § 296 enjoyment are, by a number of decisions, the subject of recoup- ment.148 While an eviction would ordinarily constitute a breach of the covenant for quiet enjoyment, express or implied, it has been de- cided in some jurisdictions that a mere trespass by the landlord does not arise from the contract or transaction which is the subject of the action for rent, and is consequently not available by way of recoupment.^ ^^ In view of the ordinarily accepted doc- i4» City of New York v. Mabie, 13 rather than by a separate action. N. Y. (3 Kern.) 151, 64 Am. Dec. 538; Riley v. Hale, 158 Mass. 240, 33 N. E. Collins V. Lewis, 53 Minn. 78, 54 N. 491. W. 1056, 19 L. R. A. 822; Holbrook V. i5o So it has been decided that Young, 108 Mass. 83, 11 Am. Rep. 310; there can be no recoupment of a de- Eldred v. Leahy, 31 Wis. 546; Hanley mand against the landlord on account V. Banks, 6 Okl. 79, 51 Pac. 664; Mc- of the overflow of the leased premises Alester v. Landers, 70 Cal. 79, 11 Pac. by rcr;son of a leak in pipes in an- 505; Abrams v. Watson, 59 Ala. 524; other part of the building (Edgerton Harmont v. Sullivan, 128 Iowa, 309, v. Page, 20 N. Y. 281; Hanley v. 103 N. W. 951; Kitchen Bros. Hotel Banks, 6 Okl. 79, 51 Pac. 664), on ac- Co. V. Philbin, 2 Neb. UnofE. 340, 96 count of damage to the tenant's N. W. 487; Moffat v. Strong, 22 N. Y. crops caused by the landlord (Brown Super. Ct. (9 Bosw.) 57; Ludlow v. v. Alfriend, 61 Ga. 12; Hulme v. McCarthy, 5 App. Div. 517, 38 N. Y. Brown, 50 Tenn. [3 Heisk.] 679. Supp. 1075. Contra, Johnson v. Aldridge, 93 Ala. In McKesson v. Mendenhall, 64 N. 77, 9 So. 513), or on account of the C. 286, it was decided that as the landlord's wrongful entry on the lease "implied an obligation on the premises (Bartlett v. Farrington, 120 part of the plaintiffs (the lessors) to Mass. 284; Livingston v. L'Engle, 27 secure the defendants (the lessees) Fla. 502, 8 So. 728; Dimmock v. Daly, the possession and enjoyment of the 9 Mo. App. 354; Levy v. Bend, 1 E. demised premises," the latter could D. Smith [N. Y.] 169) ; unauthorized set up, as a statutory counterclaim, or negligent repairs by him (Faberv. that there was an outstanding para- Phillips, 26 Misc. 723, 56 N. Y. Supp. mount title whose owners had 1028; Cram v. Dresser, 4 N. Y. Super, brought suit against them for dam- Ct. [2 Sandf.] 120; Goebel v. Hough, ages for the occupation of the land 26 Minn. 252, 2 N. W. 847, 37 Am. by them. The filing of the counter- Rep. 407), injuries wantonly done by claim was apparently regarded as him to personal property on the transforming the action into an equi- premises (Drake v. Cockroft, 4 E. table proceeding and the owner of the D. Smith [N. Y. ] 34; Willis v. paramount title was ordered to be Branch, 94 N. C. 142, 55 Am. Rep. made a party. 597), or the conversion by him of The tenant is obviously under no such property (Ludlow v. McCarthy, obligation to assert the breach of the 5 App. Div. 517, 38 N. Y. Supp. 1075; covenant by way of counterclaim Willis v. Branch, 94 N. C. 142, 55 § 296 SET-OFF AND RECOUPMENT. 1845 trine, that damages for breach of the covenant of quiet enjoyment are the subject of recoupment, these decisions are to be regarded, it seems, as assuming that a trespass by the landlord, not constitut- ing an eviction, is not a breach of the covenant for quiet enjoyment, ordinarily implied from the relation of tenancy,^ ^^ a view which would not everywhere be accepted.^ ^- If a mere trespass by the landlord is to be regarded as a breach of such covenant, it would seem that damages therefor should be regarded as the subject of recoupment, provided it is properly pleaded as constituting a breach of covenant and not merely as a trespass, and there are occasional decisions apparently to that effect.^ ^^ Damages arising from the fraud of the lessor in connection with the making and acceptance of the lease have been decided to be a subject for recoupment in an action for rent.^^^ Am. Rep. 597; Hembrock v. Stark. 53 Mo. 588). 151 In Avery v. Dougherty, 102 Ind. 443, 2 N. E. 123, 52 Am. Rep. 680, it Is explicitly stated that a mere tres- pass by the landlord, not being a breach of the implied covenant of quiet enjoyment, is not the subject of recoupment. In Boreel v. Lawton, 90 N. Y. 293, 43 Am. Rep. 170, it was decided that, there having been no relinquish- ment of possession by the tenant on account of acts of disturbance by the landlord, it could not be asserted that that there was a constructive evic- tion, and that there was, consequent- ly, no breach of the covenant for quiet enjoyment, which could be as- serted by way of counterclaim. To the same effect, see George A. Fuller Co. v. Manhattan Const. Co., 44 Misc. 219, 88 N. Y. Supp. 1049. 152 See ante, § 79 d (1). 153 In Keating v. Springer, 146 111. 481, 34 N. E. 805, 22 L. R. A. 544, 37 Am. St. Rep. 175, it was said that, though the tenant could not assert that he was evicted, since he remain- ed in possession (ante, § 185 d), he could set up, by way of recoupment, a claim for injury caused by the acts which would have justified an asser- tion of eviction had they been fol- lowed by abandonment. And Abrams v. Watson, 59 Ala. 524, is to the ef- fect that a trespass, as by removal of fences, is the subject of recoup- ment. In Goebel v. Hough, 26 Minn. 252, 2 N. W. 847, 37 Am. Rep. 407, it is decided that a claim that the lessor wrongfully interfered with the lessee's enjoyment by entering with- out permission and making repairs during the time of the accrual of the rent sued for "is connected with the subject of the action within the stat- ute of counterclaim." In Newport News & O. P. R. & Elec. Co. v. Bick- ford. 105 Va. 182, 52 S. E. 1011, it was decided that a claim on account of trespasses by the landlord was "based upon matters directly connect- ed with, and injuries growing out of, the contract sued on by plaintiff," so as to come within the local statute. 154 Allaire v. Whitney, 1 Hill (N. Y.) 484; Whitney v. Allaire, 4 Denio, 5S4, 1 N. Y. (1 Comst.) 305; Barr v. Kimball, 43 Neb. 766, 62 N. W. 196. 1846 ACTIONS FOR RENT. § 296 IMatters growing out of an agreement between the parties sub- sequent to the lease do not, it seems, arise out of the contract or subject-matter of the action, so as to be a proper subject of recoupment, and so it has been decided that damages for breach of a subsequent contract settling certain controversies could not be so made the subject of a cross demand.^ ^^ A like decision has been made as to the tenant's claim on account of the land- lord's promise to share the expense of repairs, provided the ten- ant would make them;^^^ but in apparent opposition to this latter decision are several cases in which a cross demand, on account of the expenditures made by the tenant on the strength of the land- lord's promise to pay therefor, has been allowed,^ ^'^ These latter cases are, perhaps, to be explained by reference to the statutes of set-off of the particular states, authorizing a cross demand against the plaintiff based on a contractual claim entirely dis- connected with the subject of the action. A breach of covenant on the part of the landlord need not, in order that it may be the subject of recou[)mont or counter- claim as against a claim for a particular installment of rent, have accrued during the time of accrual of such installment, and so the tenant, though he has paid one or more installments of rent since the breach, may assert such breach in an action by the landlord for a subsequent installment.^'^^ And so the tenant may assert a breach of the covenant for quiet enjoyment in an action for an installment of rent which accrued before such breach.^^* If the covenant by the landlord is continuous in its nature, and consequently susceptible of repeated breaches, distinct breaches may be asserted in successive actions for separate installments of rcnt.160 See Cage v. Phillips, 38 Ala. 382; Sis- kerson v. Farnham, 82 Mo. 672 (sem- son V. Kaper, 105 Iowa, 599, 75 N. W. ble) ; Trathen v. Klpp, 15 Colo. App. 490. 426, 62 Pac. 962 (semble). See Mann 155 Collins V. Karatopsky, 36 Ark. v. Fuller. 63 Kan. 664, 66 Pac. 627. 316. 55 L. R. A. 560, 88 Am. St. Rep. 256. ir.6 Phillips V. Sun Dyeing Bleach & i58 Cook v. Soule, 56 N. Y. 420; Mc- Cal. Co.. 10 R. I. 458. And see Pow- Alester v. Landers, 70 Cal. 79, 11 Pac. ers V. Cope. 93 Ga. 248, 18 S. B. 815, 505. And see Benkard v. Babcock, 25 apparently to the same effect. N. Y. Super. Ct. (2 Rob.) 175, 17 Abb. 1" MeCtillnch v. Dobson, 133 N. Y. Pr. 421. 27 How. Pr. 391. 114, 30 N. E. 641; Jeff ers v. Bantley, i59 Tiley v. Moyers, 43 Pa. 404. And 47 Hun (N. Y.) 90; Hausman v. Mul- see cases cited ante, note 149. fc^ran. 68 Minn. 48, 70 N. W. 866; Wil- iso Block v. Ebner, 54 Ind. 544. § 296 SET-OFF AND RECOUPMENT. 1847 It has been decided that there can be no recoupment if the breach by the landlord of his contract occurred after the com- mencement of the action for rent.i^^ But the statute of the par- ticular jurisdiction may justify a contrary view.i'52 To what extent, in an action for rent by a transferee of the re- version or of the rent, the tenant may assert a right of set-off or recoupment which he might have asserted against the transferor, does not clearly appear from the decisions. In cases where a de- mand by the defendant against an assignor is asserted in an action by an assignee, as being the subject of a set-off rather than by way of recoupment, that is, on the theory, not that the two demands arise from the same contract or transaction, but rather that they are mutual demands between the parties concerned in the action, the general rule is that the claim as- signed, as well as that which is asserted by way of set-off, must have been due at the time of the assignment.ies This rule has been held to prevent a lessee from asserting, as against an as- signee of rent to become due, a debt due from the assignor to the lessee at the time of the assignment,!^^ and the same rule would seem to apply in the case of an action by the transferee of the reversion to which the rent is incident.i^^ But when the claim 161 Harger v. Edmonds, 4 Barb. i65 This is, it seems, necessarily im- (N Y.) 256. P^i6