[* 282] *of the said term to C. for six years, and B. surrenders or forfeits his lease at the end of one year, C.'s interest shall immediately take effect: but if the remainder had been to C. from and after the expiration of the said three years, or from and after the expiration of the said time, in this case C.'s interest will not commence till the time is fully elapsed, whatever may become of B.'s term (n).

Tenant for years has estovers;

and emble

cases.

Tenant for term of years has incident to and inseparable from his estate, unless by special agreement, the same estovers which we formerly observed (0) that tenant for life was entitled to; that is to say, house-bote, fire-bote, plough-bote, and hay-bote (p); terms which have been already explained (q). (263) With regard to emblements, or the ments in some profits of lands sowed by tenant for years, there is this difference between him and tenant for life: that where the term of a tenant for years depends upon a certainty, as if he holds from midsummer for ten years, and in the last year he sows a crop of corn, and it is not ripe and cut before midsummer, the end of his term, the landlord shall have it; for the tenant knew the expiration of his term, and therefore it was his own folly to sow what he never could reap the profits of (r). But where the lease for years depends upon an uncertainty: as, upon the death of the lessor, being himself only tenant for life, or being a husband seised in right of his wife; or if the term of years be determinable upon a life or lives; in all these cases the estate for years not being certainly to expire at a time foreknown, but merely by the act of God, the tenant shall have the emblements in the same manner that a tenant for life or his executors is entitled thereto. Except a tenant at rack-rent,

(n) Co. Litt. 45. (0) Page 233. (p) Co. Litt. 53.

(9) Page 22.
(r) Litt. s. 68.

(263) An agreement or a contract by a landlord to make repairs, will bind him to do so; but if there is no agreement upon his part to make repairs, he cannot be compelled by the tenant to make any repairs; nor can the tenant make them and charge the expense to the landlord, or deduct it from the rent. In the absence of any agreement to repair, the tenant takes the premises in the condition in which they may happen to be, and the landlord is not bound to put them in tenantable condition. Mumford v. Brown, 6 Cow. 475; Casad v. Hughes, 27 Ind. 141; Elliott v. Aiken, 45 N. H. 36; Foster v. Peyser, 9 Cush. 242; Howard v. Doolittle, 3 Duer, 464.

In case the buildings leased are injured or destroyed by fire, or other cause, without the fault of the landlord, he is not bound to repair or rebuild them, unless he has expressly covenanted to do so. Doupe v. Genin, 45 N. Y. (6 Hand) 119; Carter v. Rockett, 8 Paige, 437; Gates v. Green, 4 id. 355; Welles v. Castles, 3 Gray, 323; Gibson v. Perry, 29 Mo. 245; Proctor v. Keith, 12 B. Monr. 252, 254; Lamott v. Sterett, 1 Harr. & J. 42; Cross v. Button, 4 Wis. 468; Hallett v. Wylie, 3 Johns. 44.

In such cases the tenant is bound to pay the rent if there is no clause in the lease which protects him. Ib.

By a statute, in New York, the lessces or occupants of buildings destroyed, or injured by the elements so as to be untenantable, without any fault of the tenant, may remove therefrom and surrender the premises, and will not afterward be liable for rent. Laws of 1860, ch. 245. Under this statute, if a dwelling becomes untenantable by reason of the filth from a privy on the same or adjoining premises, the tenant may leave the premises, and he will not thereafter be liable for the rent. Fash v. Kavanagh, 24 How. Pr. 347. This statute applies to those cases only in which the injury or destruction occurs after the tenant's entry, and not where it exists at the time of making the lease. Bloomer v. Merrill 29 How. Pr. 259; 1 Daly, 485.

who now, instead of taking emblements, continues in possession till the end of

the current year of his tenancy (s). Not so, if it * determine by the [* 283] act of the party himself: as if tenant for years does anything that

Fixtures.

amounts to a forfeiture: in which case the emblements shall go to the lessor and not to the lessee, who hath determined his estate by his own default (t). With regard to fixtures, a tenant for term of years may remove any of those fixtures which having been put up by tenants are ordinarily removable by them (u) at any time during his term, or during such period as he lawfully remains in possession as a tenant (v). (264.) If he neglect to remove them before the expiration of his term, and he gives up possession, his right to the fixtures is gone (x). If, however, he forfeits his term, it seems that he is allowed a reasonable time for the removal of his fixtures after the lessor gives notice of his intention to enforce the forfeiture. This, after much discussion and some adverse opinions (y), at last received a judicial decision in favour of the tenant (z).

We may here notice some points respecting certain leases or leasehold interests which are very common. Where a tenant is in possession of land paying rent, whether annually, half-yearly, or quarterly, but without any express agreement regulating the duration of his tenancy, the law presumes, independently of any local * custom, that the tenancy is from year to year, [* 284] that is to say, a tenancy which, until determined by notice or surren

der, is impliedly renewed at the commencement of each year, and can be determined at the option of either party, but only on the anniversary of the day on which it commenced, and after half a year's

Estate from year to year.

seq.; and as to agricultural fixtures, see 14 & 15 Vict. c. 25.

(v) Penton v. Robart, 2 East, 88; Weeton v. Woodcock, 7 M. & W. 14; Leader v. Homewood, 5 C. B. N. S. 546.

(x) Leader v. Homewood, 5 C. B. N. S. 546.

(y) Minshall v. Lloyd, 3 M. & W. 45; Mackintosh v. Trotter, 3 M. & W. 184; Weeton v. Woodcock, 7 M. & W. 14; Stansfeld v. Mayor of Portsmouth, 4 C. B. N. S. 120.

(2) Sumner v. Bromilow, 34 L. J. Q. B. 130. A still more recent case, Pugh v. Arton (Weekly Notes, 3 July, 1869), seems, however, adverse to this view.

(264) In this country the general rule is, that any tenant, whether for life, for years, or at will, is permitted to remove all such fixtures of a chattel nature, as he has himself erected upon the demised premises, for the purpose of ornament, domestic convenience, or to carry on trade, when such removal can be effected without material injury to the freehold. Elwes v. Maw, 3 East, 38; 2 Smith's Lead. Cas. 228 (177, 7th Am. ed.); Holmes v. Tremper, 20 Johns. 29; Cook v. Champlain Transp. Co., 1 Denio, 91; Leland v. Gassett, 17 Vt. 403; Mason v. Fenn, 13 Ill. 529, 535; Finney v. Watkins, 13 Mo. 291; Whiting v. Brastow, 4 Pick. 310; Van Ness v. Pacard, 2 Pet. 137; Brooks v. Stinson, 1 Busbee, 72; McCracken v Hall, 7 Ind. 30; Lawrence v. Kemp, 1 Duer, 363.

But this right of removal must be exercised before the tenant's term expires, or at least before he gives up the possession. Preston v. Briggs, 16 Vt. 124; Stockwell v. Marks, 17 Me. 455; Overton v. Williston, 31 Penn. St. 155; Pemberton v. King, 2 Dev. 376; Beer v. St. John, 16 Conn. 322; Shepard v. Spaulding, 4 Metc. 416; Haflick v. Stober, 11 Ohio St. 482; Lawrence v. Kemp, 1 Duer, 373; Beckwith v. Boyce, 9 Mo. 560; State v. Elliot, 11 N. H. 540; McCracken v. Hall, 7 Ind. 30.

VOL. I. 75

previous notice (a). Thus, if A. on the 1st of August enters upon land as tenant of B. the owner, and on or after the 1st November pays 107. as a quarter's rent up to November, these facts alone, without further evidence, will establish a tenancy from year to year, commencing on the 1st of August; and since such a tenancy can only be determined by giving a half year's notice, to terminate on the 31st July, therefore if no notice be given on the 1st of February after the first commencement of the tenancy, it will continue for two whole years at least, and so on in other years (b). Of course the parties may at their pleasure, by contract, vary the terms of the tenancy (c). And in certain places custom has established a variation. By the custom of London a quarter's notice is sufficient where the rent is less than 21. (d). When the letting is expressly for a shorter period than a year, by the quarter, month or week, if the tenancy continue beyond the first period, then a notice equal to the period of the letting is requisite in order to determine the [* 285] tenancy (e). But of course, the tenant may quit at the end of the first period without notice (f). If the notice be waived, the tenancy continues as if none had been given (g). If a tenant for a term certain under

a lease keep possession after the expiration of the term and pay rent, this will constitute a tenancy from year to year, subject to the conditions contained in the lease so far as applicable (h).

The second species of estates not freehold are estates at will. An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor; and the tenant by force of this Estates at will. lease obtains possession (i). (265) Such tenant has no certain Jones v. Sheares, 6 N. & M. 428; Blyth v. Dennett, 13 C. B. 178.

(a) Right d. Flower v. Darby, 1 T. R. 159; Ibbs v. Richardson, 1 P. & D. 618; Doe d. Thomson v. Amey, 12 A. & E. 476; Braithwaite v. Hitchcock, 10 M. & W. 494; Tress v. Savage, 4 E. & B. 36; Doe d. Cornwall v. Matthews, 11 C. B. 675. This kind of lease was in use at least as long ago as the reign of Henry VIII., when half-a-year's notice seems to have been required to determine it. T. 13 Hen. 8, 15, 16.

(b) See, as to the notice, Gulliver v. Burr, W. Bl. 596; Kemp v. Derrett, 3 Camp. 510; Papillon v. Brunton, 5 H. & N. 518; Humphreys v. Franks, 18 C. B. 323; Walker v. Godé, 6 H. & N. 594; Doe d. Williams v. Smith, 5 A. & E. 350; Cadby v. Martinez, 11 A. & E. 720.

(c) See Doe d. King v. Grafton, 21 L. J. Q. B. 276.

(d) Skinn. 449; Harg. Co. Litt. 270 b.

(e) Atherstone v. Bostock, 2 Scott, N. R. 637; Huffell v. Armitstead, 7 C. & P. 56. There it was said that a weekly tenant might quit at the expiration of any week without notice; but see Jones v. Mills, 10 C. B. N. S. 788, where a week's notice was thought to be proper. (f) lb.

(g) As to what is waiver in such a case, see

(h) Digby v. Atkinson, 4 Camp. 275; Johnson v. Churchwardens, &c., 6 N. & M. 106.

A lease for years, without more, is a lease for two years. 6 Rep. 35. A lease "for one year and so on from year until the tenancy hereby created shall be determined as hereafter mentioned," followed by a proviso that either party might determine the tenancy by giving three months' notice, was held to be a lease for two years certain, on account of the rule already mentioned, that a tenancy from year to year can only be put an end to on the expiration of the current year, unless there be an express stipulation to the contrary. Doe d. Chadborn v. Green, 1 Per. & Dav. 454. So, a letting from one half-year and so on from half-year to half-year until determined, is a letting for a year certain. 4 Nev. & P. 525. So, a lease for three years, and after for three years, and so from three years to three years, is a lease for nine years certain. Bac. Ab., Leases (L.), 3.

(1) Litt. s. 68; Doe d. Tomes v. Chamberlaine, 5 M. & W. 14; Doe d. Burgess v. Thompson, 5 A. & E. 532.

(265) Strickly speaking, an estate at will is where one man lets land to another to hold at the will of the lessor, and where the agreement expressly provides that it shall be held at the will of the lessor; but if a tenant is placed on land without any term being prescribed, or any rent reserved, and as a mere occupier, he is a tenant at will. Sarsfield v. Healy, 50 Barb. 245; Post v. Post, 14 Barb. 253; Harris v. Frink, 49 N. Y. (4 Sick.) 24, 32; Dame v. Dame, 38 N. H. 429.

Emblements.

indefeasible estate, nothing that can be assigned by him to any other; because the lessor may determine his will, and put him out whenever he pleases. But every estate at will is at the will of both parties, landlord and tenant; so that either of them may determine his will, and quit his connexions with the other at his own pleasure (k). (266) Yet this must be understood with [*286] some restriction. For, if the tenant at will sows his land, and the landlord, before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits (n). (267) And this for the same reason, upon which all the cases of emblements turn; viz. the point of uncertainty: since the tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it; and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser, by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will; for in this case the landlord shall have the profits of the land (0). (268)

What act does, or does not, amount to a determination of the will on either side, has formerly been matter of great debate in our courts. But it is now

Determination settled, that (besides the express determination of the lessor's of the will. will, by declaring that the lessee shall hold no longer; which must. either be made upon the land (p), or notice must be given to the lessee (7)) the exertion of any act of ownership by the lessor, as entering upon the premises and cutting timber (r), taking a distress for rent and impounding it thereon (s), or making a feoffment, or lease for years of the land to commence immediately (t), or any act of desertion by the lessee, as assigning his estate to another, or committing waste, which is an act inconsistent with such a tenure (u); or which is instar omnium, the death or outlawry of either lessor or lessee (x): puts an end to or determines the estate at will. (269)

(266) So held in Cheever v. Pearson, 16 Pick. 266, 272; Doe v. Richards, 4 Ind. 374.

(267) To the same effect are Davis v. Thompson, 13 Me. 209; Sherburne v. Jones, 20 id. 70; Stewart v. Doughty, 9 Johns. 108.

(268) The same rule applied in Debow v. Titus, 5 Halst. 128.

(269) The rule stated in the text is generally the rule in this country; and a tenancy at will is held to be terminated in the following cases: Upon a notice to quit. Davis v. Thompson, 13 Me. 209; Ellis v. Paige, 1 Pick. 43.

Upon a demand of possession of the premises. Howell v. Howell, 7 Ired. 491, 496.

An entry upon the land with an intent to terminate the lessee's estate; and the intent is a question of fact. Holly v. Brown, 14 Conn. 255; which intent must come to the knowledge of the tenant. Rising v. Stannard, 17 Mass. 281.

Doing such acts upon the premises as would be a trespass in any one but such lessor, as by carrying off stone or trees from the premises against the tenant's will. Doe v. Turner, 7 M. & W. 226.

Making a feoffment on the land to a third party. Rising v. Stannard, 17 Mass. 281, 286.

[* 287]

*The law is, however, careful, that no sudden determination of the will by one party shall tend to the manifest and unforeseen prejudice of the other. This appears in the case of emblements before mentioned; and, by a parity of reason, the lessee, after the determination of the lessor's will, shall have reasonable ingress and egress to fetch away his goods and utensils, and to remove his fixtures (y). (270). And, upon the same principle, courts of law have of late years leaned as much as possible against construing Tenancies from demises, where no certain term is mentioned, to be tenancies at year to year. will; but have rather held them to be tenancies from year to year so long as both parties please, especially where an annual rent is reserved. Under the provisions of the Statute of Frauds (z) (an enactment passed for a purpose indicated by its name), all leases and estates made by parol, and not put in writing and signed by the parties making the same, or their agents lawfully thereto authorized, in writing, have the force and effect of leases or estates at will only, an exception, however, being made (a) of all leases for terms not exceeding three years from the making thereof whereon the rent reserved is at least two-thirds of the annual value. The courts, following the principle above noticed, have, whilst giving effect to the spirit of this act, so far deviated from its strict letter, as to hold that where a lease is made by parol for more than three years, followed by a payment of rent, or promise to pay rent, the tenancy is one from year to year, upon the terms (except as to the duration of the lease) contained in the parol lease, and is not a tenancy at will (b.)

*Hence a tenancy at will, being, as is obvious, an inconvenient [* 288] mode of possessing land, rarely occurs in practice, except in certain cases where it exists by operation of law rather than by express intendment of the parties (c), and except the large number of tenancies at will which con

(3) Cole, Eject. 346; Heap v. Barton, 12 C. B. 274; Martin v. Roe, 7 E. & B. 237. (z) 29 Car. 2, c. 3, s. 1. (a) S. 3.

(b) Doe d. Rigge v. Bell, 5 T. R. 471; Clay ton v. Blakey, 8 Ib. 3; Beale v. Sanders, 5 Scott, 58. Of course, before any such payment, or promise of payment, the tenancy is merely at will. Doidge v. Bowers, 2 M. & W. 365.

(c) For instance, where a mortgagor remains in personal possession of the mortgagee land with the consent of the mortgagee, he is in the eye of the law (where no express contract exists) a tenant at will, but his equitable rights carry his position substantially far higher. We shall revert to this point presently.

Selling the land to a third party. Jackson v. Aldritch, 13 Johns. 106; Alton v. Pickering, 9 N. H. 494; Howard v. Merriam, 5 Cush. 563; Esty v. Baker, 50 Me. 325; Curtis v. Galvin, 1 Allen, 215.

Leasing the lands to another. Hildreth v. Conant, 10 Metc. 298; Kelly v. Waite, 12 id. 300; Pratt v. Farrar, 10 Allen, 519.

Acts of forfeiture by the tenant, as by assigning his interest to another. Cooper v. Adams, 6 Cush. 87; Phillips v. Covert, 7 Johns. 1; Warner v. Page, 4 Vt. 291; Doak v. Donelson, 2 Yerg. 249.

Or by conveying the land. Ib. Howell v. Howell, 7 Ired. 491, 496.

Abandoning the premises, and especially where the tenant declares that he will no longer hold them. Chandler v. Thurston, 10 Pick. 205.

Or by the death of either party. Rising v. Stannard, 17 Mass. 282; Howard v. Merriam, 5 Cush. 563; Robie v. Smith, 21 Me. 114; Manchester v. Doddridge, 3 Ind. 360; Cody v. Quarerman, 12 Ga. 386, 400.

(270) In accordance with the text. See Folsom v. Moore, 19 Me. 252; Ellis v. Paige, 1 Pick. 43.