or that they judicially know that there could be no reason or reasons for the act. It is next urged that the act is invalid because its going into effect is made to depend upon some other authority than is provided in the Constitution, in violation of article 1, § 25, and in violation of § 26, art. 1, as authorizing the suspension of laws without the authority of the general assembly, and invalid under articles 4 of the Constitution, as delegating legislative powers to the Railroad Commission under §§ 5 and 7 of the act. and Appellant is not prosecuted here for the violation of any order of the Railroad Commission, the taking effect or suspension, enforcement, or validity of which might be involved under §§ 25 and 26 of article 1, but for the violation of §§ 2 and 3 of the act, which are not involved with §§ 5 and 7, and are entirely independent; and if the latter are invalid, as to which we express no opinion, the valid and the invalid sections are independent and readily separable, and appellant cannot complain of an act which, if invalid, is not in question and does not affect it. Hammer v. State, 173 Ind. 199, 204, 24 L.R.A. (N.S.) 795, 140 Am. St. Rep. 248, 89 N. E. 850, 21 Ann. Cas. 1034. The judgment is affirmed. Petition for rehearing denied. Writ of error dismissed by the Supreme Court of the United States, according to stipulation, October 13, 1914, 235 U. S. 710, 59 L. ed. 35 Sup. Ct. Rep. 198. estate because not under seal, upon consideration of support, cannot, where the statute does not require an ordinary lease to be under seal, maintain a real action to recover the possession while the lessee complies with his agreement. (December 17, 1914.) XCEPTIONS by defendant to rulings of E took County made during the trial of an the Supreme Judicial Court for Aroosaction brought to recover possession of certain real estate, which resulted in a judg ment for plaintiff. Sustained. The facts are stated in the opinion. Mr. A. B. Donworth, for defendant: entitled to recover possession of the propThe lease was valid, and plaintiff is not erty. Sweetser v. McKenney, 65 Me. 225; Hurd v. Cushing, 7 Pick. 169; Cook v. Bisbee, 18 Pick. 527; Effinger v. Lewis, 32 Pa. 367. Messrs. Shaw, Burleigh, & Shaw also for defendant. Messrs. Powers & Guild and William P. Allen, for plaintiff: The instrument in question purports to convey a life estate in the demanded prem ises. Doe ex dem. Warner v. Browne, 8 East, 165; Washb. Real Prop. 5th ed. 121, 122. A life estate in land cannot be conveyed by a written instrument not under seal. Doe ex dem. Warner v. Browne, supra; Stewart v. Clark, 13 Met. 79; People ex rel. Norton v. Gillis, 24 Wend. 201; 1 Washb. Real Prop. 5th ed. 124; 1 Taylor, Landl. & T. 8th ed. § 34. Haley, J., delivered the opinion of the MAINE SUPREME JUDICIAL COURT. court: The law courts early established the rule that if the lessor's covenant, express or implied, from the nature of the estate intended to be created, not to disturb the lessee in his possession and enjoyment of the premises, is repugnant to the very nature and character of the estate actually created by the This is a real action brought to recover the possession of a lot of land situated in Caribou, county of Aroostook, and was heard at the February term, 1914, by the court without a jury on an agreed statement of facts, with the right of exception. The material facts of the agreed statement are that the plaintiff was devised for her life by the will of her husband, proved and allowed in the probate court on the third lease, the covenant is not binding and the lessor can maintain an action for possession, even against the covenant. The lessee was compelled to go into a court of equity to obtain relief. Since law courts in almost all jurisdictions now permit equitable defenses to actions at law, there seems to be no good reason why those courts ought not to hold that the lessor is estopped by an express or implied covenant not to disturb the lessee in his possession; so that, although it be impossible to regard the covenant as the determining factor in fixing the charac Tuesday of December, 1895, the lot of land demanded and described in the writ; that on May 4, 1909, the plaintiff and the defendant entered into the following agreement: Caribou, Aroostook County, Me., Pierce, am to pay all taxes on said farm, and if I should die before this lease expires, this lease is void. The house on this said farm is not included in this lease. Within a week of the date of said agreement the defendant, Rosean Pierce, went into possession of the premises described in said writing, which are the premises demanded in the writ, and has remained in The parties agreed that the only contested point was the construction of the lease or writing above mentioned, submitted by the defendant under the above state of facts. I, Sarah Calkins, this 4th day of May, 1909, do lease to Rosean Pierce my home-possession ever since. stead farm in the town of Caribou, this being a life lease and said Rosean Pierce is to support me, Sarah Calkins, as long as I live, and said Sarah Calkins is to live and stay with me as long as she lives. I am to clothe and support the same at my home for the rent of her farm. I, Rosean ter of the estate, yet it can be given the force, of a simple contract. Most of the cases in which the question has arisen involve a lease in terms determinable solely at the will of the lessee, the lessor's covenant not to dispossess him being sometimes express and sometimes implied from the grant. It will be seen, infra, that a few courts have held that even though the lease is under seal, it creates only an estate at the will of the lessor, while most courts follow what is believed to be the correct rule, i. e., that the lessee takes a freehold estate either for life or in fee, according to the terms of the particular instrument and other considerations not material here. But if, for any reason, such as lack of seal or other defect, the particular instrument cannot pass a freehold estate, then the lessee takes only an estate at the will of the lessor. It is clear that the covenant in ali these cases is repugnant to the very nature and character of an estate at the will of the lessor. So, except in those cases where the lease can be construed to pass a freehold estate, the covenant is not binding, and the lessor can, in an action at law, recover possession from the lessee, since the lease creates only a tenancy at will, except in jurisdictions in which equitable defenses are permitted in actions at law. See cases cited, infra. The note is not limited to this particular class of leases, but the same principle is the basis of the decisions involving leases for a term of years, from year to year, or for life. "When the lease is made to have and to hold at the will of the lessor, the law implieth it to be at the will of the lessee also, for it cannot be only at the will of the lessor, but it must be at the will of the lessee also. And so it is when the lease is made to have and to hold at the will of the lessee; this must be also at the will of the lessor; and so are all the books that seems prima facie to differ clearly reconciled." Co. Lit. 55. a. If the words, "this must be also at the will of the lessor," are accepted without qualification, clearly the lessor-except in jurisdictions where equitable defenses are permitted in actions at law-is not estopped The court filed the following ruling: "I think the writing relied upon by the dein an action at law by his grant, to maintain an action for possession. To say that the estate is terminable at the will of the lessor, but that he is estopped to sue for possession by the very grant or covenant which operated to create a tenancy at will, would be simply stating a paradox, so far as technical pleading in the law court goes. Some courts in the United States have followed the rule that a lease that fixes no time for the termination of the estate, but expressly gives the right to terminate to the lessee only, creates an estate at will of the lessor, and he can maintain an action for possession. Doe ex dem. Pidgeon v. Richards, 4 Ind. 374; Knight v. Indiana Coal & I. Co. 47 Ind. 105, 17 Am. Rep. 692 (action by lessor to quiet title); Cheever v. Pearson, 16 Pick. 266; Corby v. McSpadden, 63 Mo. App. 648 (by way of argument); Western Transp. Co. v. Lansing, 49 N. Y. 499; Den ex dem. Mhoon v. Drizzle, 14 N. C. (3 Dev. L.) 414; Beauchamp v. Runnels, 35 Tex. Civ. App. 212, 79 S. W. 1105 (forcible entry and detainer for possession); Cowan v. Radford Iron Co. 83 Va. 547, 3 S. E. 120, 15 Mor. Min. Rep. 453 (merely an approval of the principle); Reese v. Zinn, 103 Fed. 97, These cases are in harmony with the practically unanimous opinion of the courts so far as the soundness of the rule is concerned, and they are not in harmony only in the fact that these courts apply the rule when the lease is under seal. The courts in these cases have held, although the leases were under seal, exactly what other courts would have held only in the absence of the seal. See, infra. The fact that other courts would have construed the lease, it being under seal, so as to convey an estate that would not be repugnant to the covenant, does not detract from the value of these cases on the question here under discussion. As construed, they passed an estate repugnant to the covenant. For the purpose of this note the court's construction as to the estate passed must be accepted. In Doe ex dem. Pidgeon v. Richards, 4 Ind. 374, the lease was practically the same as the one in CALKINS v. PIERCE, except that it was sealed, and instead of being fendant, if it had been sealed, would have, property described in the defendant, for, operated to create a tenancy for life. A as said by the court in Hurd v. Chase, 100 tenancy which operates as an estate for life, | Me. 561, 62 Atl. 660: "It may be conceded being a freehold, can only pass by deed, that is by writing under seal. It follows that the writing referred to is invalid to create any estate or right of possession in the defendant, Rosean Pierce," and ordered judgment for the plaintiff, to which the defend ant excepted, and the case is before this court upon her exceptions. The ruling of the court that "a tenancy which operates as an estate for life, being a freehold, can only be passed by deed, that is, by writing under seal," is undoubt edly the law. But it does not follow that the writing referred to is invalid to create any estate or right of possession of the that the plaintiff has the legal title to a life estate in the land, but to maintain this action (ignoring technicalities in pleading) she must be entitled to possession as well. Rev. Stat. chap. 106, § 5. One may retain his title to real estate while debarring himself from right of entry and possession.' The plaintiff relies upon § 35 of Taylor on Landlord & Tenant, which, after stating that a life estate can only be created by deed, reads: "An agreement not under seal, that a lessor should not turn out the tenant so long as he paid rent, has been held invalid, because the tenancy created by it would not be determinable so long as the The rule is so limited by the great expressly for life, it was for "so long as he, cases. (the lessee) desires." The action in eject-weight of authority, in practice at least, for ment for possession was brought in the right of the lessor after notice to lessee to quit. The court quoted Lord Coke's rule in ull, and applied the same by sustaining the plaintiff's action. it is held that a lease under seal conveys a freehold estate if by its terms its termination is dependent wholly upon the will of the lessee. In England it usually creates a life estate for the reason that the word "heirs" is necessary to convey a fee simple estate, but in some states in this country it conveys the fee (see citations by Tiffany in the section cited supra). Cases in which it is held that a lease terminable solely at the will of the lessee creates a life estate or conveys a fee are not in point here, except perhaps indirectly. For example, in Lewis v. Ellinger, 30 Pa. 281, second appeal 32 Pa. 367, a lease of property at an annual rental was made for the term of one hundred In Den ex dem. Mhoon v. Drizzle, 14 N. C. (3 Dev. L.) 414, the term was "during his natural life or so long as said Drizzle may wish to tend it himself, and no longer." Aithough lessee was in possession and had cleared a great portion of the land, the court, while admitting that it was a hard case, applied Lord Coke's rule and sustained an action in ejectment by a judgment creditor of the heirs of the lessor after the latter's death, holding that the lease created only a tenancy at will, which was terminat-years and thereafter as long as the lessee, ed by the death of the lessor. The lease was under seal. And the same rule has been applied where the lease was' for a definite term of years, but the lessee expressly given the right to terminate at any time during the term. Eclipse Oil Co. v. South Penn Oil Co. 47 W. Va. 84, 34 S. E. 923, 20 Mor. Min. Rep. 234. However, convincing arguments have been presented tending to show that Coke had in mind, when he made the statement, only leases without livery of seisin, which at that time was necessary to the creation of a freehold estate (after the seal and formal execution took the place of livery of seisin, Coke's statement would apply only to leases not under seal or otherwise defective as conveyances of freehold estates). The authorities in support of this position lead far beyond the scope of the present note. Therefore, it must suffice to say that the arguments produced and the authorities cited in Tiffany, Landlord & Tenant, vol. 1, § 13 (1) p. 101, in support of this position, leave scarcely room to doubt that the position is the correct one. But for the purpose of this note it does not make much difference whether Lord Coke and other writers on the same point meant to limit the rule to leases without livery of seisin or not, for the principle of the rule remains correct if it is so limited, but it becomes applicable to fewer his heirs and assigns, shall think proper. At the expiration of the one hundred years, the parties who had succeeded to the rights of the lessor brought ejectment. It was held that a fee simple estate had passed by the instrument, since it met all formal requirements to convey such an estate, but the court quotes Lord Coke's rule and fully explains the fact that if the instrument had not been under seal, the rule would be applicable. From what is said, supra, the reason for Lord Coke's rule becomes apparent. The les sor is permitted to recover against his covenant only when the covenant is repugnant to the very nature or character of any estate that could possibly be conveyed by the instrument. The covenant is coextensive with a life estate, which is a freehold. By construing the instrument as a conveyance of a freehold estate there is no repugnancy. But if there were no livery of seisin (later, if there were no seal) the lease could not convey a freehold estate, and the covenant was repugnant to the very nature and character of the estate granted by the lease, hence the lessor was permited to recover against it. The court in CALKINS v. PIERCE, after reviewing Doe ex dem. Warner v. Browne, 8 East, 165, says: "The only point that case decided was that an estate for life can tenant complied with the terms of his agreement, and would therefore operate as an estate for life, which, being a freehold, can only pass by deed." sale or sell any article that may be injurious to W. Warner in his business." It was not claimed the tenant had broken any of the conditions, but the plaintiff rested his case on proving half a year's notice to the defendant to quit on the 25th day of March, and the question was whether the lessor had a right to determine the tenancy on such notice, considering the defendant as tenant only from year to year. The authority for the text is Doe ex dem. Warner v. Browne, 8 East, 165. An examination of the case shows that it does not support the test to the extent claimed by the plaintiff. It was an action to recover possession of a messuage that the defendant was in possession of under an agree- At the trial Lord Ellenborough, Ch. J., ment not under seal, whereby the defendant held the notice to be good, and a verdict was was to have possession of certain prem- accordingly taken for the plaintiff with ises for a certain rent, payable quarterly, leave to the defendant to move to enter a which contains the following clause: "That nonsuit; a rule having been obtained for W. Warner shall not raise the rent nor turn that purpose, upon the ground that the out J. Browne so long as the rent is duly agreement operated as a lease for so long paid quarterly, and he does not expose to as the tenant pleased and he complied with only be created by deed or will, and that the, cy from year to year, such as this is conwriting did not create a e estate, but tended to be, that the option of determining did create an interest in the land, viz., it should rest solely with the tenant." a tenancy from year to year." With When Lawrence, J., said: "If this interest all deference to the court, it is sub- be not determinable so long as the tenant mitted that it did not adequately state the complies with the terms of the agreement, it holding of the English court. That case would operate as an estate for life, which was tried upon the theory that the writing can only be created by deed, as a feoffment created a tenancy from year to year, mak- or a conveyance to uses. The notion of a ing a decision on that point unnecessary. tenancy from year to year, the lessor binding But the tenant contended that the landlord himself not to give notice to quit, which was estopped from maintaining ejectment, was once thrown out by Lord Mansfield, as could be done on six months' notice under has been long exploded," he did not, it is the ordinary tenancy from year to year, by submitted, have in mind, or in any way his covenant "that W. Warner shall not refer to, counsel's citation of Right ex dem. raise the rent nor turn out J. Browne so Green v. Proctor, although Lord Mansfield long as the rent is duly paid quarterly, and sat in the trial of that case. That he rehe does not expose to sale or sell any arti- ferred to Right ex dem. Green v. Proctor cle that may be injurious to W. Warner in seems to be extremely doubtful, for three his business." It was held that he was not reasons: (1) The conclusion in that case, so estopped, for the reason that the covenant as is pointed out by the court in CALKINS v. was repugnant to a tenancy from year to PIERCE, was approved unanimously by the year, i. e., the leasehold estate could not whole court. (2) It would seem that possibly be one from year to year and at the neither the court nor Lord Mansfield nor same time be terminable only at the will of anyone else connected with the case of Right the tenant. The reasoning was that, in ex dem. Green v. Proctor said anything order to give the covenant effect, the theory about "a tenancy from year to year, the of a tenancy from year to year must be lessor binding himself not to give notice to abandoned, and that of a tenancy for life quit." The lease in that case was embodied adopted, but the latter theory could not in a partnership agreement, the owner, one be adopted for the reason that the lease was of the partners, dedicating the house to the not under seal. An important principle un- use of the firm as a part of its capital, by derlying the case is that a leasehold life es- stipulating that the other, who was an acttate cannot be in effect created as distinctive partner, should occupy and care for the from a freehold life estate. Counsel cited house and partnership property and receive Right ex dem. Green v. Proctor, 4 Burr, a certain amount towards expenses, It 2208, to the point "that a lessor shall not would be difficult to see how any court could recover in ejectment against his covenant," avoid holding that the covenant amounted and Doe ex dem. Rigge v. Bell, 5 T. R. 471, to a lease, and that the lessor could not eject 2 Revised Rep. 642, 15 Eng. Rul. Cas. 596, the lessee during the time the partnership "where, though the lease by parol for seven continued. The report of the case in 4 Burr. years was avoided by the statute of frauds, 2208, is as follows: "This was a case reyet the lessor was holden to be bound by his served for the opinion of the court. In agreement, as to the time of giving notice to ejectment. Edward Green was seised of a quit." To which citations Lord Ellenbor- house in St. Margarets' Westminster, a ough, Ch. J., answered: "It was not re- brewhouse, and the stock belonging to it. pugnant to the nature of the estate there, Proctor agreed to purchase one fifth of it. that the agreement, though void as to the Green covenanted to assign it accordingly. duration of the lease, should regulate the Articles of partnership were entered into, in time of giving notice to quit; but here it is which were several covenants. Amongst entirely repugnant to the nature of a tenan-others, Green covenanted that the said the conditions. The case was argued in the can only be created by deed, as a feoffment King's bench, and Lord Ellenborough or a conveyance to uses. The notion of a stated: "That either his estate might inure tenancy from year to year, the lessor bindfor life at his option, and then, according ing himself not to give notice to quit, to Lord Coke, such an estate would, in which was once thrown out by Lord Manslegal contemplation be an estate for life, field, has been long exploded." which could not be created by parol; or, if not for life, being for no assignable period, it must operate as a tenancy from year to year; in which case it would be inconsistent with and repugnant to the nature of such an estate, that it should not be determinable at the pleasure of either party giving the regular notice." Lawrence, J., said: "If this interest be not determinable so long as the tenant complies with the terms of the agreement, it would operate as an estate for life, which trade shall be carried on between Green, Ekins, and Proctor, etc., and £300 allotted for the yearly rent of the house shall be paid by Green. He covenants, also, that Proctor shall reside and dwell in the house free of all rent, except taxes; and shall be allowed certain perquisites and household expenses, and receive £6, 6s. weekly for his trouble, etc. And he covenanted that if he should die, his executor should renew the lease to Proctor. It was likewise covenanted that neither party should dispose of his share without acquainting the other. Then there is a proviso that Proctor and his family may use the water of Green's canal. Proctor alone resided in the house. At the trial a verdict was found for the plaintiff, and 18. damages, subject to the opinion of this court upon this question-Whether, upon this state of the case, the plaintiff has a right to recover.' This question first came before the court on Friday last, the 29th of April, and was then ordered to stand over to this day. Mr. Ashurst, on behalf of the plaintiff, argued that Green had not excluded himself from a joint occupation. And if the words do not import it, the court will not enforce such a construction as seems contrary to the intention. Green had either the sole legal right, or was joint tenant with Proctor. Mr. Walker, contra, was stopped by Lord Mansfield, it being a clear case. Lord Mansfield: At the trial I had no doubt upon the construction of the articles, and none of us have any doubt now. The plaintiff cannot recover against his own covenant. Green was to be a gentleman in this affair; Ekins, to furnish skill and money; Proctor, to contribute labor and attendance. The house was to be appropriated to the use of the trade. Proctor was to have the use and occupation of it, and be bound to reside there, and to have coals, candles, etc., and other perquisites, and the use of a pond which belonged to Mr. Green; and if Green should die, his executor was bound to renew the lease to Proctor. And Proctor did live in the house. Green has no right to recover under all these circumstances. Mr. Justice Yates: Even as a license to inhabit, it amounts to a lease, and it ap The only point that case decided was that an estate for life can only be created by deed or will, and that the writing did not create a life estate, but did create an interest in the land, viz., a tenancy from year to year. Right ex dem. Green v. Proctor, 4 Burr. 2208, was the case in which it was stated that the notion was advanced by Lord Mansfield of a tenancy from year to year; the lessor binding himself not to give notice to quit. The case was tried before Lord pears most plainly to be intended that he was to reside in it. Mr. Justice Aston and Mr. Justice Willes were of the same opinion. Per Cur' unanimously. Judgment of nonsuit." (3) It is submitted that the reference of Lawrence, J., was to the "notion thrown out by Lord Mansfield" in Ferguson v. Cornish, 2 Burr. 1032, 3 T. R. 463, note, expressed more accurately and followed in Goodright ex dem. Hall v. Richardson, 3 T. R. 462. The lease in the Ferguson Case was for "seven, fourteen, or twenty-one years, as the lessee (Cornish) should think proper, at £60 per annum rent." Lord Mansfield seems to have held, although the case did not turn upon the point, that either the lessor or the lessee could terminate the lease, by proper notice, at the end of seven or fourteen years. This statement of the holding is stronger than Lord Mansfield expressed it, but it is a fair statement of the doctrine evolved from his statement, by Lord Kenyon, in Goodright ex dem. Hall v. Richardson, supra, who elaborated and approved the doctrine, although it seems to have been unnecessary to the decision in this case also. This doctrine, which has been attributed to Lord Mansfield, "has been long exploded," as having been extrajudicial, in both the cases cited supra (Dann v. Spurrier, 3 Bos. & P. 399, 7 Ves. Jr. 231, 2 Eng. Rul. Cas. 756; Doe ex dem. Webb v. Dixon, 9 East, 15; Bacon, Abr. Leases (L) 628). In the Spurrier Case the doctrine is referred to as having been "thrown out" by Lord Mansfield. To paraphrase the words of Lawrence, J., in Doe ex dem. Warner v. Browne: We do not base our decision upon the notion once thrown out by Lord Mansfield, but long ago exploded, that a covenant by the lessor not to give notice to quit is in every case of tenancy from year to year of no effect, but in the case before us the covenant is repugnant to the very nature of the estate, and for that reason alone the lessor is not estopped to recover against it. It will be seen that the "notion once thrown out by Lord Mansfield" went much farther toward permitting the lessor to recover against his covenant than any of the judges in Doe ex dem. Warner |