see by virtue of a lease made pursuant to the Statute," was considered insufficient, because the names of the grantor and grantee were omitted, and it did not appear that the lease was made for years, or upon any consideration. A defect of this nature would clearly be remedied by the recent Act. A pecuniary consideration is requisite for the purpose of raising a use on a bargain and sale, and a nominal sum of five shillings is usually inserted as the consideration, in the recital of a bargain and sale in freehold leases; but it is not essential to allege the payment of any precise sum of money, as the lease for a year will be sufficient, if expressed or recited to be made(n) in consideration of a peppercorn, or of a certain (o) sum, or of a competent(p) sum, without mentioning the amount. It has however been determined, that no use can be raised on a bargain and sale alleged to be made for divers good causes(q) and considerations, though it may be sustained by proof of actual payment of money. The omission to set out a pecuniary, or other sufficient consideration, in pleading a bargain and sale, can(r) only be taken advantage of on special demurrer. The lease for a year is usually stated to bear date the day next before the day of the date of the deed of release, though it may be alleged to bear date either on the same(s) day as the release, or several days(t) before, as it is enough, if at the time of executing the release, there be an estate under the bargain and sale susceptible of enlargement; and it is immaterial whether such estate be made for a less(u) period than one year, or be for several years. A bargain and sale constituting part of a freehold demise must, however, be made, or recited to be made, only for a year, or for years, because if made for an estate of freehold, it would require enrolment. 20. A freehold lease omitting any recital of, or reference to a bargain and sale, or to the recent Act, and although no bargain and sale was in fact ever executed, nor livery made, may be supported by shewing that the premises were, at the time of executing the lease, in possession of tenants for years, or at will, and that the lease operated as a(v) grant of the reversion expectant upon the holdings of the occupying (n) Barker v. Keate, 2 Mod. 249; 2 Ventr. 35. Dr. Johnson, in his Dictionary, defines a peppercorn as a thing of no value. (0) 2 Ro. Abr. 786; Uses N. pl. 2. (p) Fisher v. Smith, Moor, 569. (9) Mildmay's case, 1 Rep. 176; Roberts . Tuthil, 3 Keb. 201. (r) Bolton v. The Bishop of Carlisle, 2 H. Bla. 261. (s) Taylor dem. Atkyns v. Horde, I Burr. 106. (t) Ramsbottom v. Tunbridge, 2 M. & Selw. 434. (u) Ibid. (v) Doe dem. Were v. Cole, 7 B. & Cress. 243; 1 M. & Ry. 33, S. C. tenants; or such freehold lease may be sustained as a release in enlargement of an estate or interest previously vested in the releaseę(w), if it appear by evidence, or by any recital in the lease, that the premises were held at the time of its execution by the lessee, under the lessor. A recital contained in a freehold lease, that the premises were then in the tenure(x) and occupation of the lessee and his undertenants, was considered sufficient to supersede the necessity of a bargain and sale, or of livery of seisin; but an indenture granting certain lands, which were stated to be in the possession (y) of James Callaghan, to hold the same to Rose Kearns, her heirs and assigns, for three lives, was held insufficient to pass the reversion, unless some apparent privity were shown between the lessee and James Callaghan; and that the possession of the latter was not merely a holding by sufferance. A freehold lease may also take effect(z) as a surrender, appointment, or covenant to stand seised, whenever the circumstances warrant such a construction, for the purpose of giving validity to the instrument; or it may operate as a lease at common law, grounded on the presumption of livery of seisin. Thus one Lloyd having, by indenture, dated in August, 1786, granted, demised, leased, set, and to farmlet unto Chamberlain certain premises, then in the occupation and tenure of Chamberlain, and his under-tenants, for three lives, at a yearly rent, it was ruled(a), that where a lease was accompanied by possession, livery of seisin ought to be presumed after a lapse of twenty years; but if the fact of livery is sought to be inferred from(b) possession alone, such a possession must be shewn to have existed for twenty years, to warrant the presumption. Where a bargain and sale for a year was made between Ralph Saunders, of the one part, and H. Cooper and Elizabeth his wife of the other part, and the deed of release was made between Ralph Saunders of the first part, and H. Cooper and Elizabeth his wife of the second part, and H. Cooper and William Saunders of the third part, to hold the premises to H. Cooper and William Saunders, it was decided(c), that the bargain and sale vested the possession for a year in H. Cooper and his wife, and that the same H. Cooper, who was one of (w) Rees dem. Chamberlain v. Lloyd, Wightw. 123. (1) Ibid. (y) Doe dem. Kearns v. Sherlock, 2 Fox & S. 79-86. (z) 2 Prest. Conv. 359; Doe dem. Lewis v. Davies, 2 Mees. & W. 503; Savage dem. Davis v. Davis, 4 Irish Law Rep. 353. (a) Rees dem. Chamberlain v. Lloyd, Wightw. 123. (b) Doe dem. Wilkins v. Ld. Cleveland, 9 B. & Cr. 864; 4 Mann. & Ry. 666, S. C.; Doe dem. Lewis v. Davies, 2 Mees. & W. 503-516. (c) Doe dem. Saunders v. Cooper, Holt's N. P. C. 461. the releasees, having that possession which, under the Statute of Uses, enabled him to accept a release, he and his co-releasee were entitled to take the release as joint-tenants. A bargain and sale for a year being made to one Bass, the indenture of release, which stated Bass to be a trustee for Topham, granted the reversion of the premises to Topham (in his possession then being, &c.), to hold the same to Bass and his heirs, for such uses as Topham should appoint; the Court ruled(d) that the words of the grant to Topham might be rejected as surplusage, and that the estate was vested in Bass by the release. (d) Spyve v. Topham, 3 East, 115; Lord Say and Seal's case, 10 Mod. 40 46; 4 Bro. Parl. Ca. 73, S. C.; Gilb. on Uses, by Sugden, 237. CHAPTER II. NATURE AND EXTENT OF LEASEHOLD INTERESTS. (TENANCY AT WILL.) 1. Tenancy at Will. 2. mined. how defeated or deter 3. At what Time determinable. 5. Introduction of yearly Holdings. 18. Parol Demises may be made subject to special Stipulations. 19. Receipt of Rent by Remainder-man under void Lease. 20. Tacit Renovation of Contract by Recognition of Tenancy. 22. 21. Yearly Holding created by Tenant 24. Holding by tacit Consent after Ex- 25. Such implied Contract continues after Change of Parties. 26. Contracts implied from Payment of Rent may be rebutted. 27. Yearly Tenancy does not arise until Preliminary Conditions performed. 28. Letting of Lodgings. 23. Yearly Holding transmissible to Personal Representatives. 1. TENANCY at will subsists where lands are holden by one person under another, so long as both parties please; and as the holding(a) depends on the mutual will both of landlord and tenant, it may be put an end to at any time by the dissent of either. A holding at the will of the lessor, is determinable, by implication of law, at the will of the tenant; and in like manner, a holding at the will of the lessee may be defeated by the landlord whenever he pleases. 2. A tenant at will has a mere scintilla of interest, which the landlord may destroy, either by demand (b) of possession, or by feoffment(c) with livery of seisin, though made without notice to the tenant, or by (a) Potkin's case, Year Book, 14 Hen. VIII. fol. 10; Co. Litt. 15, A.; 2 Comm. 145. & Cress. 448; 2 D. & Ry. 514; Right (b) Doe dem. Newby v. Jackson, 1 B. 2 Cro. M. & R. 120. conveyance(d), or lease(e) of the lands to a third person, to take effect in possession, after notice given to the tenant, or by any act(ƒ) of the landlord inconsistent with the continuance of such a tenancy; and it is said by Lord Coke, that the lessor, by actual entry upon the ground, may determine his will in the absence(g) of the lessee, but by words spoken off the ground the will is not determined until the lessee has notice. A holding during pleasure may be determined either by the tenant's giving notice (h) of his intention to quit and by waiving the possession, or by his assigning(i), or underletting(j), or committing(k) waste on the premises, or by his disclaimer() of the landlord's title. If a tenant at will underlet, or admit another into the tenancy with the lessor's permission, the estate at will(m), by such underlease or act of transfer, is determined, and a new holding at will is created by the immediate act of the landlord. An estate at will also determines upon the decease(n) either of the landlord or of the tenant, but continues notwithstanding the death of one(o) of several lessors, because the demise being joint, the interest survives. So a demise at will, either by(p) or to a feme-sole, does not determine upon her subsequent marriage. 3. A holding at will may be determined by either of the parties, at any period of the year, and the landlord is not restricted in making(9) a demand of possession, to the period of the year when the tenancy commenced; and after demand made, the tenant is not entitled to retain the possession for the purpose of removing his goods, though even after the determination of his interest he may enter on the premises, and continue there a reasonable time, for the sole purpose of removing his property, provided he does not exclude the landlord. (d) Daniels v. Davison, 16 Vesey, 252. (e) Dinsdale v. Iles, 2 Lev. 88; Thos. Raym. 224; 1 Ventr. 247; Turleston v. Rives, 1 Freem. K. B. 106. (f) Doe dem. Bennett v. Turner, 7 Mees. & W. 226; Turner v. Doe dem. Bennett, 9 Mees. & W. 643, in error. (g) Co. Litt. 55, B.; and see Lapierre v. M'Intosh, 1 P. & Dav. 629; 9 Ad. & Ell. 857; Com. Dig. Estates (H. 6). (h) Harg. note, 373, to Co. Litt. 55, B. from Hale's MSS. (i) Co. Litt. 57, A.; 4 Leon. 35, pl. 95; 10 Vin. Abr. 403; Estates at Will, Y. B. pl. 7. (j) Moss v. Gallimore, 1 Doug. 283, by Ashurst, J. (k) Co. Litt. 57, A. (1) Doe dem. Price v. Price, 4 Bing. 356; 2 M. & Sc. 464. (m) Watk. princ. 2. Keilw. 163; Moss v. Gallimore, 1 Doug. 283. (n) Crockerell v. Owerell, Holt, 417; Doe dem. Lewis v. Lord Cawdor, 4 Tyrw. 852-859; 1 Cro. M. & Rose, 398, S. C.; James v. Dean, 11 Vesey, 391; 10 Vin. Abr. Estates at Will, Z. B. pl. 7; Co. Litt. 62, B. (0) Henstead's case, 5 Rep. 10. (p) Henstead's case, 5 Rep. 10; Keilw. 162, B. (g) Doe dem. Nicholl v. M'Kaeg, 10 B. & Cress. 721; 5 Mann. & Ry. 620, S. C.; 2 Comm. 145-147; Litt. sect. 69. |