as marking with considerable exactness the division of the year into four quarters, these have been adopted by the law for many purposes, and particularly with reference to the relation existing between lessor and lessee (i). In other cases the civil year commences at midnight between the 31st of December and the 1st of January (k). Month. There is greater ambiguity as to the legal meaning of the word month, because there are two intervals which ordinarily receive the name, one an interval of 28 days, the conventional period of the revolution of the moon, of which there are thirteen in a year; the other the calendar months, according to the Julian division in our common almanacks, commencing at the calends of each month, of which, as all know, there are twelve in each year. 66 In law, unless calendar months are expressly named, it is, with a few exceptions, presumed that lunar months are intended (7). (256) Thus, in construing a deed or contract, * the word "month" standing unexplained means [* 276] A lease for twelve months" is only for forty-eight four weeks. weeks; though if the expression used be "a twelvemonth" in the singular number, it is good for the whole year (m). The word "twelvemonth" being universally intended to mean a year, no ambiguity can arise in interpreting it. The exceptions to this general rule are, first, in quare impedit, and in ecclesiastical cases generally (n); secondly, in commercial matters, in which the obvious convenience of reckoning from month to month by the calendar has led to the adoption of this meaning of the word (0). Lastly, in acts of parliament passed since the beginning of the session 1851, unless otherwise expressed (p). In the space of a day, all the twenty-four hours are usually reckoned, the law (i) A notice given on the 29th of Sept. to quit on the 25th March, is considered as a good half-year's notice, although that interval includes only 178 days. Doe d. Mathewson v. Wrightman, 4 Esp. 5; Doe d. Harrop v. Green, ib. 198; Doe v. Lea, 11 East, 312; Roe d. Durant v. Doe, 4 Moo. & P. 391, 6 Bing. 574; Papillon v. Brunton, 5 H. & N. 518. (k) 24 Geo. 2, c. 23. Previously the year commenced on the 25th March. (2) "I confess, I wish it had been decided, that months should be understood to mean calendar and not lunar months; but the contrary has been determined so long and so frequently, that it ought not again to be brought in question. In the instance indeed of a quare impedit, the computation of time is by calendar months, but that depends on the words of an act of parliament (13 Edw. 1, st. 1, c. 5), tempus semestre. See Bishop of Peterborough v. Catesby, Cro. Jac. 167. But for all other purposes, and in all acts of parliament Per where months are spoken of without the (m) Catesby's Case, 6 Rep. 61. (n) Crooke v. M'Tavish, 1 Bing. 309. (0) Cockell v. Gray, 3 Br. & B. 186; Hart v. Middleton, 2 Car. & K. 9. (p) 13 & 14 Vict. c. 21. (256) Although by the English law a lunar month is intended by the term "month," a contrary rule prevails in this country, and a calendar month will be considered as the time designed in the lease. Avery v. Pixley, 4 Mass. 460; Hardin v. Major, 4 Bibb, 105; Gross v. Fowler, 21 Cal. 392; Strong v. Birchard, 5 Conn. 361; Brewer v. Harris, 5 Gratt. 285, 298; Sheets v. Selden's Lessee, 2 Wall. (U. S.) 177; Kimball v. Lamson, 2 Vt. 138; Williamson v. Farrow, 1 Bailey, 611. *To return to estates for years. or generally rejecting all fractions of a day, in order to avoid disputes (q). (257) Therefore, if I am bound to pay money on any certain day, I discharge the obligation if I pay it before twelve o'clock at night; after which the following day commences (1). [*277] [*278] These estates were originally granted to mere farmers * husbandmen, who every year rendered some equivalent in money, provisions, or other rent, to the lessors or landlords, but, in order to encourage them to manure Origin of terms and cultivate the ground, they had a permanent interest granted them, not determinable at the will of the lord. And yet their possession was esteemed of so little consequence, that they were rather considered as the bailiffs or servants of the lord, who were to receive and account for the for years. (g) Co. Litt. 135. (r) It was formerly held, that where an act was agreed to be done within a certain number of days, "from the date" of the instrument, the day of the date was to be included in the computation; but not when the words were from the day of the date" (see Clayton's Case, 5 Rep. 1); but since the case of Pugh v. The Duke of Leeds, Cowp. 714, these formal distinctions have been done away. Watson v. Pears, 2 Camp. 294. And when the computation is to be made from an act done, it was formerly said that the day in which the act is done is included in the reckoning. Castle v. Burditt, 3 T. R. 623; Glassington v. Rawlins, 3 East, 407; but this doctrine has been overruled. 'It is not necessary to lay down any general rule upon this subject; but upon technical reasoning, I should rather think it would be more easy to maintain, that the day of an act done or an event happening ought in all cases to be excluded, than that it should in all cases be included. Our law rejects fractions of a day more generally than the civil law does. The effect is to render the day a sort of indivisible point, so that any act done in the compass of it is no more referrible to any one than to any other portion of it; but the act and the day are co-extensive; and therefore, the act cannot properly be said to be passed until the day is passed. But it is not necessary to lay down any general rule. Whichever way it should be laid down, cases would occur, the reason of which would require exceptions to be made." Per Sir W. Grant, M. R., Lester v. Garland, 15 Ves. 248, 257. Upon this reasoning, and upon consideration of the effect of applying a con trary rule to the extreme case of a single day, it appears to be settled, that the day on which the act was done from which the period is to be computed, must be excluded from the com putation. 6 Mee. & W. 49; Williams v. Burgess, 12 Ad. & El. 635; 11 Sim. 434; In re Wilmot, 1 Curteis, 1. And where a person has a certain time from an act done to deliberate, upon the expiration of which another person may do some act, the period is in general to be calculated exclusively of the days in which both the precedent and the subsequent acts are done. Id.; Blunt v. Heslop, 8 Ad. & E. 577. And a lease for a term of years includes the whole anniversary of the day it was granted. Ackland v. Lutley, 9 Ad. & E. 879. Where property was directed to be transferred to a party on her attaining her twentyfifth year, it was held that the time had arrived when she became twenty-four years old. Grant v. Grant, 4 You. & C. 256. And the word “till" has been held to include the day to which it is prefixed. Dakins v. Wagner, 3 Dowl. P. C. 535. There was a difference of opinion in the court upon the question, whether a bill of exchange could be protested for non-payment on the same day that it was due, or the acceptor had the whole of the day to discharge it in. Leftley v. Mills, 4 T. R. 170. It is now settled, that refusal to pay on demand made within business hours, is a primâ facie dishonour of a bill of exchange; but that, notwithstanding, the acceptor has the whole day to pay in. Ex parte Moline, 19 Ves. 216; Burbridge v. Manners, 3 Camp. 194; Hartley v. Case, 1 Car. & P. 556. The holder of a bill payable at a banker's must present it within banking hours, or take the risk of there being no one at the office. Parker v. Gordon, 7 East, 385; Whittaker v. Bank of England, 1 Cr. M. &. R. 744. And in other cases, the presentment must be within a reasonable time; but 8 or 9 o'clock in the evening has been held reasonable. Wilkins v. Jadis, 2 B. & Ad. 188. (257) The law takes no account of the fractions of a day, unless it should be to prevent injustice. Duffy v. Ogden, 64 Penn. St. 240; Clute v. Clute, 3 Denio, 263; Blydenburgh v. Cotheal, 4 N. Y. (4 Comst.) 418. Ordinarily a week means seven full days. But in New York, where sales of real estate on executions are required to be advertised six weeks before the sale, an advertisement, if inserted once in each week, for the six weeks before the sale is valid, although full six weeks should not have elapsed between the date of the first publication and the sale. Wood v. Morehouse, 45 N. Y. (6 Hand) 368; Olcott v. Robinson, 21 N. Y. (7 Smith) 150. profits at a settled price, than as having any property of their own. And therefore they were not allowed to have a freehold estate: but their interest (such as it was) vested after their deaths in their executors, who were to make up the accounts of their testator with the lord, and the other creditors, and were entitled to the stock upon the farm. The lessee's estate might also, by the ancient law, be at any time defeated by a common recovery suffered by the tenant of the freehold (s); which annihilated all leases for years then subsisting, unless afterwards renewed by the recoveror, whose title was supposed superior to his by whom those leases were granted. Terms were While estates for years were thus precarious, it is no wonder that they were usually very short, like our modern leases upon rack rent; and indeed we are told (t) that by the ancient law no leases for more than forty usually short. years were allowable, because any longer possession (especially when given without any livery declaring the nature and * duration of [*279] the estate) might tend to defeat the inheritance. (258). Yet this law, if ever it existed, was soon antiquated; for we may observe in Madox's collection of ancient instruments, some leases for years of a pretty early date, which considerably exceed that period (u): and long terms, for three hundred or a thousand years, were certainly in use in the time of Edward III. (x), and probably of Edward I. (y). But certainly, when by the statute 21 Hen. 8, c. 15, the termor (that is, he who is entitled to the term of years) was protected against these fictitious recoveries, and his interest rendered secure and permanent, long terms began to be more frequent than before; and were afterwards extensively introduced, being found extremely convenient for family settlements and mortgages: continuing subject, however, to the same rules of succession, and with the same inferiority to freeholds, as when they were little better than tenancies at the will of the landlord. (259). (8) Co. Litt. 46. (t) Mirror, c. 2, s 27; Co. Litt. 45, 46. (u) Madox Formulare Anglican. n°. 239, fol. 140. Demise for eighty years, 21 Ric. 2. lb. n°. 245, fol. 146, for the like term, A. D. 1429. Ib. n°. 248, fol, 148, for fifty years, 7 Edw, 4. (x) 32 Ass. pl. 6; Bro. Abr. tit. Mordauncestor, 42, Spoliation, 6. (y) Stat. of Mortmain, 7 Edw. 1. (258) In this country long leases have always been held valid unless some constitutional or statutory provisions declared otherwise, and leases in perpetuity were long very common in New York. Long leases of agricultural lands, reserving annual rents, have been prohibited in some of the States by constitutional provisions. See Arkansas, Art. 1, § 24; Minnesota, Art. 1, § 15; Iowa, Art. 1, § 24; New York, Art. 1, § 14; Wisconsin, Art. 1, § 14. See Hough's American Constitutions, a work of the highest value to the bench, the bar and to students. (259) It is a rule of very extensive application, that a tenant who has accepted a lease of lands and possession under it from a landlord, shall not afterward be permitted to dispute the landlord's title. Jackson v. Hinman, 10 Johns. 292; Ingraham v. Baldwin, 9 N. Y. (5 Seld.) 45; Bailey v. Kilburn, 10 Metc. 176; Jackson v. Harper, 5 Wend. 246; Willison v. Watkins, 3 Pet. 43; Milhollin v. Jones, 7 Ind. 715; Ryerson v. Eldred, 18 Mich. 12; Gray v. Johnson, 14 N. H. 414; Hodges v. Shields, 18 B. Monr. 830; Moore v. Beasley, 3 Ohio, 294; Caldwell v. Harris, 4 Humph. 24; Pope v. Harkins, 16 Ala. 321. The rule extends to a tenant who holds over, as well as to an under-tenant, an assignee or other person who claims under the lessee. Jackson v. Stiles, 1 Cow. 575; Graham v. Moore, 4 S. & R. 467; Ingraham v. Baldwin, 9 N. Y. (5 Seld.) 45; Binney v. Chapman, 5 Pick. 124; Shelton v. Doe, 6 Ala. 230; Russell v. Erwin, 38 Ala. 50; Falkner v. Beers, 2 Doug. (Mich.) 117; Eister v. Paul, 54 Penn. St. 196; Phillips v. Rothwell, 4 Bibb, 33; Harker v. Gustin 7 Halst. 42; Rose v. Davis, 11 Cal. 135; Funk's Lessee v. Kincaid, 5 Md. 404. Must be certain in duration. Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years. And therefore this estate is frequently called a term, terminus, because its duration or continuance is bounded, limited, and determined: for every such estate must have a certain beginning, and certain end (z). But id certum est, quod certum reddi protest: therefore, if a man make a lease to another, for so many years as J. S. shall name, it is a good lease for years (a); for though it is at present uncertain, yet when J. S. hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this estate, it begins from the making, or delivery, of the lease (b). A lease for so many [* 280] *years as J. S. shall live, is void from the beginning (c); for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the lease. And the same doctrine holds, if a parson make a lease of his glebe for so many years as he shall continue parson of Dale; for this is still more uncertain. But a lease for twenty or more years, if J. S. shall so long live, or if he should so long continue parson, is good (d); for there is a certain period fixed, beyond which it cannot last; though it may determine sooner, on the death of J. S., or his ceasing to be parson there (e). We have before remarked, and endeavoured to assign the reason of, the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance: observing, that an estate for May commence in futuro. life, even if it be pur autre vie, is a freehold: but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate (f). Hence it follows, that a lease for years may be made to commence (2) Co. Litt. 45. (a) 6 Rep. 35. (b) Co. Litt. 46. If an impossible time is mentioned for the commencement of the term, the date of the delivery of the lease is taken; but if an uncertain time, as, the month without the year, is specified, the lease is void. Co. Litt. 46; 6 Rep. 35. (c) Co. Litt. 45. (d) Co. Litt. 45. It also includes every species of tenancy, whether for years, at will or by sufferance. Love v. Dennis, 1 Harper, 70; Williams v. The Mayor, 6 Har. & J. 529, 533; Trustees of First Presb. Cong. Salem v. Williams, 9 Wend. 147; Coburn v. Palmer, 8 Cush. 124. A tenant cannot ordinarily acquire a title by an adverse possession against his landlord, if such title is acquired during the tenancy. Eister v. Paul, 54 Penn. St. 196; Galloway v. Ogle, 2 Binn. 472; Jackson v. Whitford, 2 Caines, 215; Jackson v. Miller, 6 Cow. 751; Lecatt v. Stewart, 2 Stew. 474; Byrne v. Beeson, 1 Doug. (Mich.) 179; Allen v. Chatfield, 8 Minn. 435. But a tenant may acquire and set up a title consistent with that admitted by the demise, as where he purchases the premises at a tax sale, or on a sale on execution against the lessor, made during the term. Miller v. McBrier, 14 S. & R. 382; Isaac v. Clarke, 2 Gill. 1; Miller v. Bonsadon, 9 Ala. 317; Bettison v. Budd, 17 Ark. 546; Camley v. Stanfield, 10 Texas, 546; Elliott v. Smith, 23 Penn. St. 131; George v. Putney, 4 Cush. 351; Nellis v. Lathrop, 22 Wend. 121; Simers v. Saltus, 3 Denio, 217. The estoppel continues only during the term. Page v. Kinsman, 43 N. H. 331; Jackson v. Collins, 11 Johns. 1; Zeller's Lessee v. Eckert, 4 How. (U. S.) 286; Duke v. Harper, 6 Yerg, 280; Doe v. Reynolds, 27 Ala. 376; Jackson v. Rowland, 6 Wend. 666; Wild's Lessee v. Serpell, 10 Gratt. 415; Tilghman v. Little, 13 Ill. 241. The tenant may show that the landlord's title has expired, as by selling the lands, or by an eviction by a title paramount. Moore v. Beasley, 3 Ohio, 292; Marley v. Rodgers, 5 Yerg. 217; Jackson v. Rowland, 6 Wend. 666; Wells v. Mason, 4 Scam. 84; Swann v. Wilson, A. K. Marsh. 99; Den v. Ashmore, 2 Zabr. 261; Tilghman v. Little, 13 Ill. 241; Towne v Butterfield, 97 Mass. 105; Giles v. Ebsworth, 10 Md. 333; Wolf v. Johnson, 30 Miss. 513; Pope v. Harkins, 16 Ala. 323; Russell v. Allard, 18 N. H. 222. Though no estate of freehold can. in futuro, though a lease for life cannot. (260). As, if A. grants lands to B. to hold from Michaelmas next for twenty years, this is good; but to hold from Michaelmas next for the term of his natural life, it is void. For no estate of freehold can commence in futuro; because it could not be created at common law without livery of seisin, or corporal possession of the land; and corporal possession cannot be given of an estate now, which is not to commence now, but hereafter (g), unless indeed the freehold estate is to commence at the expiration of other freehold estates already limited, the first of which commences in possession, for then it takes effect as a remainder, of which we shall hereafter see more (h). And because no livery of *seisin is necessary to a lease for years, such lessee is not said to be seised, or to have true legal seisin of the lands. Nor indeed does the Interesse termini. [*281] bare lease vest any estate in the lessee; but only gives him a right of entry on the tenement, which right is called his interest in the term, or interesse termini: but when he has actually so entered, and thereby accepted the grant, the estate is then, and not before, vested in him, and he is possessed, not properly of the land, but of the term of years (i); the possession or seisin of the land remaining still in him who has the freehold (k). But even before actual entry the lessee has many rights of property under the lease, for he may assign his interest or may validly grant an underlease: and his assignee or under-lessee may by entry complete the title as effectually as he could have done by his own entry (7). (261) Again, if the lessee died before entry, the interesse termini passed to his executors (m). The word term, then, does not merely signify the time specified in the lease, but the estate also and interest that passes by the lease: and therefore the term may expire, during the continuance of the time; as by surrender, tween term and forfeiture, and the like. (262) For which reason, if A. grant a lease to B. for the term of three years, and after the expiration Difference be time. fore entry hath an interest, interesse termini, grantable to another. And albeit the lessor die before the lessee enter, yet the lessee may enter into the lands. And so, if the lessee dieth before he enter, yet his executors or administrators may enter, because he pres ently by the lease hath an interest in him, and if it be made to two, and one die before entry, his interest shall survive." Co. Litt. 46 b. (1) Williams v. Bosanquet, 1 Br. & B. 238, 248; see Doe d. Parsley v. Day, 2 Q. B. 147, 156. (m) See Bac. Abr. Leases, M.; Miller v. Green, 1 Moo. & Sc. 199. (260) A lease for years, which is to commence in future, is valid. Young v. Dake, 5 N. Y. (1 Seld.) 463; Taggard v. Roosevelt, 8 How. Pr. 141; 2 E. D. Smith, 100; Whitney v. Allaire, 1 N. Y. (1 Comst.) 305. (261) Although a tenant, not in actual possession, cannot maintain trespass, yet he may maintain ejectment. Whitney v. Allaire, 1 N. Y. (1 Comst.) 305, 311; Trull v. Granger, 8 N. Y. (4 Seld.) 115; Gardner v. Keteltas, 3 Hill, 332. (262) It is essential to a lease that some reversionary interest should remain in the lessor, for if he parts with his whole interest in the premises, it will amount to an assignment of the term. If, however, a lessee disposes of the term granted to him, but he reserves some portion, however small, this will be an under-lease. Van Rensselaer v. Gallup, 5 Denio, 454; Piggot v. Mason, 1 Paige, 412; Davis v. Morris, 36 N. Y. (9 Tiff.) 569 ; Collamer v. Kelley, 12 Iowa, 319. |