or sub-lease from the tenant, but claims to hold under a paramount title is a sufficient ground for the immediate forfeiture of the original lease. Upon such forfeiture the landlord may at once maintain forcible detainer against the stranger.2 Even a mere oral disclaimer by the tenant coupled with the claim of title in himself is, in this state, a sufficient ground of forfeiture.3 The attempt by a tenant to transfer more than he has operates merely as an assignment of his interest.1 It does not seem that such a conveyance should by itself furnish a ground of forfeiture.5

§ 22. By acts of 18656 and 18737-Prior to 1865 no ground of forfeiture in the absence of express condition-Introductory: Prior to the act of 1865 there was an important distinction between covenants and conditions in leases for years. For the breach of a covenant there was no ground of forfeiture. To present a ground of forfeiture it was necessary that the breach of the covenant should also be made by express language the breach of a condition subsequent. Unless, therefore, the non-payment of rent were made in terms a ground of forfeiture the landlord's only remedy was to sue for rent due and wait for the expiration of the tenancy.

Direct authority upon this point is not forthcoming. No opinion, however, has been found against it and, on principle, it is believed that it must be sound.

§ 22a. On principle: There was, it is true, an implied condition, upon which the feudal vassal held of his lord, that the vassal should perform the feudal services and that default in their performance was ground for forfeiture though no condition was ever expressed.8 From a consideration, however,

2 Hardin v. Forsythe, 99 Ill. 312; Thomasson v. Wilson, 146 Ill. 384. 3 Fusselman v. Worthington, 14 Ill. 135; McGinnis v. Fernandes, 126 Ill. 228; Brown v. Keller, 32 Ill. 151; Herrell v. Sizeland, 81 Ill. 457; Wood v. Morton, 11 Ill. 547.

4 Turner v. Hause, 199 Ill. 464. 5 It has been said that any conveyance by a tenant at sufferance will forfeit the tenancy: Proctor

v. Tows, 115 Ill. 138, 150. The owner, however, is always entitled to possession as against a tenant at sufferance.

6 Laws 1865, p. 107, § 2. In force Feb. 16, 1865. Reenacted in 1873; Laws 1873, p. 119, § 9, see R. S. 1874, ch. 80, sec. 9.

7 Laws 1873, p. 119, § 8. In force July 1st, 1873, see R. S. 1874, ch. 30, sec. 8.

8 But prior to the time of Hen.

of the origin of leasehold interests in terms for years, it will appear that this feudal doctrine of implied conditions could have no application whatever to them. Terms for years started, as Sir Frederick Pollock has pointed out," in the conception that "the relation between the landlord and the tenant is simply a personal contract." From a strictly feudal point of view there was "not an estate at all, only a personal claim against the freeholder to be allowed. to occupy the land in accordance with the agreement. 10 But as early as the thirteenth century it came to be the law that if the tenant "was ejected in breach of his landlord's agreement, he could recover not merely compensation for being turned out, but the possession itself; and this not only against the original landlord but against a purchaser from him."'11 Thus, the leasehold became property, but it was distinct at almost every point from the interest of the feudal tenant. "Being in legal theory," writes Sir Frederick Pollock,12 "the creature of contract, it has neither the dignities nor the burdens peculiar to freehold tenures. It is not the subject of feudal modes of conveyance, nor of the feudal rules of inheritance. No particular form of words is necessary for its creation; . It could always be disposed of by will if the tenant died before the expiration of the term; and in case of such death the law deals with it in the same way as cattle or money and it goes to the executor, as part of the 'personal estate,' to be administered by the same rules as movable property. If undisposed of by will, the leasehold tenant's

III even this right was modified, so that the lord was only put into possession of the fee until the demand should be satisfied, and a forfeiture could be had only if the demand was not satisfied within a certain time. (Wright on Tenures, pp. 196-197.) Still later by the statute of 52 Hen. III, c. 22, the right of forfeiture by inferior lords was entirely taken away, leaving them only a right to distrain upon chattels. (Wright on Tenures, p. 200.) By the statutes of Gloucester (6 Ed. I, ch. 4), and

interest belongs on his death to the same persons, and in the same proportions, as cash or railway shares which he has not disposed of.13 There is no such thing as an heir of leaseholds. In one word, which for the lawyer includes all that has been said, a leasehold is not real but personal estate." The origin then and consequent development of the status of a leasehold interest preclude the application to it of any feudal rule raising an implied condition imposing a forfeiture for non-payment of rent, and make the insertion of such a condition in express terms necessary.

§ 23. Not altered by any statute down to 1865: This it is believed must have been the law of Illinois down to 1865.14 The act of 1827 15 which now appears as sec. 4 of the Landlord and Tenant Act 16 merely gave the landlord the right to commence ejectment without any formal demand or re-entry where one-half year's rent was in arrear and unpaid, provided "the landlord or lessor to whom such rent is due has a right by law to re-enter for non-payment thereof." This statute, then, only operated if the landlord already had a right to re-enter by a clause of forfeiture in the lease.

§ 24. Sec. 2 of the act of 1865 17 afterwards appearing as sec. 9 of the act of 1873:18 This statute was a wide departure from the common law. It proceeded to minimize the distinction between covenants and conditions in leases by making all covenants in leases conditions. More accurately speaking every breach of covenant in a lease is, since the act of 1865, a cause of forfeiture which may be taken advantage of by the statutory ten days' notice to quit. The language of the act as it now appears in R. S. 1874 19 is: "When default is made in any of the terms of a lease,20 it shall not be necessary to give more than ten days' notice to quit or of the termination of such tenancy, and the same may be terminated on giving such

13 Thornton v. Mehring, 117 Ill. 55.

14 Chadwick v. Parker, 44 Ill. 326, 335-336, Post; § 24, note 21 (semble).

15 R. S. 1827, p. 279, § 4; R. S. 1833, p. 675, § 4; R. S. 1839, p. 435, § 4; R. S. 1845, p. 334, § 4. 16 R. S. 1874, ch. 80, § 4.

17 Laws, 1865, p. 107; ante, § 22, note 6.

18 Laws, 1873, p. 118, 119; R. S. 1874, chap. 80, sec. 9, p. 658. Ante, § 22, note 7.

19 Chap. 80, sec. 9.

20 May not the term "lease" include a lease for life?

notice to quit at any time after such default in any of the terms of such lease. What is meant by "default in any of the terms of such lease"? Does it mean breaches of express conditions, or does it include also breaches of covenants or promises-as for instance the usual one to pay rent? It would seem that the expression used was broad enough to cover all contracts, stipulations or covenants, even though no condition was expressed, thus in effect, turning all such contracts, stipulations and covenants into conditions by force of the statute. This construction is borne out by the fact that in the previous act of 1827 the legislature gave the landlord a summary remedy only if he had the "right by law to re-enter." There are some pointed dicta 21 and at least one clear decision of our supreme court 22 in favor of this view.

21 Chadwick v. Parker, 44 Ill. 326, 335-336; Leary v. Pattison, 66 III. 203, 205; Woods v. Soucy, 166 Ill. 407, 420.

In Chadwick v. Parker, supra, Walker, C. J., said: "If his [the landlord's] lease contains a clause of reentry, he can, if he choose resort to his common law remedy, or failing in that, he may, after default, give notice [under the statute of 1865] and on the failure of the tenant to pay such arears he may, after the expiration of the time, bring his suit without further notice. If the lease contains no such clause, then the landlord may, after default in payment, give a similar notice, and with like effect. This was no doubt what was intended by the legislature, as it brings within its provisions a large class of cases, not embraced in the common law; and affords a remedy in such cases, not previously possessed, of terminating a lease and regaining possession, where an insolvent tenant would not pay his rent, instead of leaving the landlord, as

he was before, to his action for the recovery of his rent."

This above passage is quoted with approval in Woods v. Soucy, supra.

In Leary v. Pattison, supra, the Court speaks of Chadwick v. Parker as holding: "that the second section of the Act of 1865 was designed to dispense with the necessity of making a common law demand for rent on the very day it became due, and to give a remedy when the lease contained no clause for a re-entry.”

22 Burt v. French, 70 Ill. 254. Here the lease was by parol and we may fairly assume that there was no express condition of forfeiture, yet it was held that a forfeiture for default in rent was properly perfected under the Act of 1865.

Observe also that in Dickinson v. Petrie, 38 Ill. App. 155, and Hayes v. Lawver, 83 Ill. 182, there was not so far as the report shows any condition of forfeiture.

In Drew v. Mosbarger, 104 Ill. App. 635, it was held in terms

§ 25. Sec. 8 of the act of 1873:23 The innovation carried out in the act of 1865 was again applied in sec. 8 of the act of 1873. That provides: "The landlord 24 or his agent may, at any time. after rent is due, demand payment thereof, and notify the tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than five days after the service thereof, the lease will be terminated. If the tenant shall not, within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended and sue for the possession under the statute in relation to forcible entry and detainer, or maintain ejectment without further notice or demand." It is, if possible, even more clear in this act than in the act of 1865 that the default in payment of rent is a cause of forfeiture even though the lease contains no express condition. Our supreme court seems to have so held.25

§ 26. Whether these acts have any retroactive effect:26 If the acts of 1865 and 1873 are sufficient for the purpose of creating a forfeiture of leaseholds, even though the lease contains no express condition,27 it is difficult to see how they can affect any leases made prior to the time these acts took effect, and in which there is no express clause of forfeiture. If the statutes were held to operate in such a case, they would most clearly change the already existing contract of the parties. They would in fact impair it directly and be unconstitutional.

§ 27. By act of the parties-Is there any condition at all?28 This question arises in the case of conveyances expressed to be for certain purposes. Is there, in such a case, a right of re-entry if such purposes are not carried out? Thus, upon a conveyance to school trustees expressed to be for school pur

that a lease might be forfeited by a ten-day notice to quit for a breach of covenant to cut burrs, even though there was no express condition of forfeiture.

23 Laws, 1873, p. 118, 119; R. S. 1874, ch. 80, sec. 8, p. 658; Hurd's R. S. 1903, ch. 80, sec. 8, p. 477.

24 Observe that the statute refers to landlords rather than to leases. Will it, then, govern in the case of a lease for life?

25 Farnam v. Hohman, 90 Ill. 312. See also Bell v. Bruhm, 30 Ill. App. 300.

26 See further on this matter, post, § 39.

27 Ante, §§ 24, 25.

28 The tendency seems to be against finding a condition in a doubtful case: Boone v. Clark, 129 Ill. 466.