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leap year, together with the preceding day, shall be accounted for one day only. That of a month is more ambiguous: there being, in common use, two ways of calculating months; either as lunar, consisting of twenty-eight days, the supposed revolution of the moon, thirteen of which make a year: or, as calendar months of unequal lengths, according to the Julian division in our common almanacs, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty-eight days, unless otherwise expressed; not only because it is always one uniform period, but because it falls naturally into a quarterly division by weeks. Therefore a lease for “twelve months” is only for forty-eight weeks, but if it be for "a twelvemonth” in the singular number, it is good for the whole year.(d) For herein the law recedes from its usual calculation, because the ambiguity between the two methods of computation ceases; it being generally understood that by the space of time called thus, in the singular number, a twelvemonth, is meant the whole year, consisting of one solar revolution. In the space of a day all the twenty-four hours are usually reckoned, the law generally rejecting all fractions of a day, in order to avoid disputes.(e) 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. But to return to estates for years.
These estates were originally granted to mere farmers or 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 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 profits at a settled price, than *142]
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 his other creditors, and were entitled to the stock upon the farm. The lessee's estate might also, by the antient law, be at any time defeated by a common recovery suffered by the tenant of the freehold;( 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.
While estates for years were thus precarious, it is no wonder that they were usually very short, like our modern seases upon rack-rent; and indeed we are told(g) that by the antient law no leases for more than forty years were allowable, because any longer possession (especially when given without any livery declaring the nature and duration of the estate) might tend to defeat the inheritance. Yet this law, if ever it existed, was soon antiquated; for we may (4) 6 Rep. 61.
Co. Litt. 46. ( Co. Litt. 135.
(o) Mirror, c. 2, 2 27. Co. Litt. 45, 46. when a thing is to be done after the doing of an act, the day of its happening must be included, it is clear the actual decision cannot be brought under any such general rule; and he inclined for excluding the first day in all cases, and ruled that where a security was to be given within six months after a testator's death, the day of the death was to be excluded. 15 Ves. Jr. 248.-Cutty.
+ The calendar of the Romans had a very peculiar arrangement. They gave particular names to three days of the month. The first day was called the calends. In the four months of March, May, July, and October the 7th, and in the others the 5th, day was called the nones; and in the four former the 15th, in the rest the 13th, day was called the ides. The other days they distinguished in the following manner. They counted from the above-mentioned days backwards, observing to reckon also the one from which they began. Thus the 3d of March, according to the Roman reckoning, would be the 5th day before the nones, which in that month fall upon the 7th. The 8th of January, in which month the nones happen on the 5th and the ides on the 13th, was called the 6th before the ides of January. Finally, to express any of the days after the ides, they reckoned in a similar manner from the calends of the following month, American Encyc., Calendar.-SHARSWOOD.
observe in Madox's collection of antient instruments, some leases for years of a pretty early date, which considerably exceed that period :(h) and long terms, for three hundred years or a thousand, were certainly in use in the time of Edward III.,() and probably of Edward I.(k) But certainly, when by the statute 21 Hen. VIII. 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 securo 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
[ *143 they were little better than tenancies at the will of the landlord.5
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.(1) But id certum est, quod certum reddi potest : 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 ;(m) 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.(n). A lease for so many years as J. S. shall live, is void from the beginning;lo) 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 (A) Madox Formulare Anglican, no. 239, fol. 140. Demiso
(*) Stat. of mortmain, 7 Edw. I. for eighty years, 21 Ric. II. ... the like term, A.D. 1429.... Ibid. no. 248, fol. 148, for fifty (%) 32 Ass. pl. 6. Bro. Abr. t. mordauncestor, 42; spoliation,
Ibid. no, 245, fol. 146, for
Co. Litt. 45.
years, 7 Edw. IV.
5 It is the duty of the tenant to maintain the title of his landlord. It results from the fealty which is incident to every tenure. It is one of the best-settled principles of the law that neither the tenant, nor any one claiming under him nor by collusion with him, shall be permitted to controvert his landlord's title. In an action of covenant on the demise, the tenant cannot plead nil habuit in tenementis; in an action of ejectment, he cannot set up a title in himself or an outstanding title in another. If he has acquired a better title than the landlord, he is bound to surrender the possession at the termination of his lease, though he may afterwards prosecute his better title. Rankin vs. Ten. brook, 6 Watts, 386. Cooper vs. Smith, 8 Watts, 536. Stewart vs. Roderick, 4 W. & S. 188. Naglee vs. Ingersoll, 7 Barr, 185. Jackson vs. Stewart, 6 Johns. 34. Chambers vs. Pleak, 6 Dana, 426.
There are some exceptions, however, to this general principle, important to be noticed. The rule that a lessee cannot controvert the title of his lessor is founded on the presumption of the lease being taken without fraud, force, or illegal behaviour on the part of the lessor; and wherever this is not the case it does not apply. Hamilton vs. Marsden, 6 Binn, 45. Miller vs. McBrier, 14 S. & R. 382. So where a person goes to one in possession, and, upon the false and fraudulent representation that he is the true owner, induces him to take a lease, the tenant is not estopped. Hall vs. Benner, 1 Penna. R. 402. Gleim vs. Rise, 6 Watts, 44. If one who has no right comes and induces him in possession to become his tenant, it must be by some misrepresentation of fact or law; and it inatters not whether the deception practised originates in voluntary falsehood or in simple mistake, for the immunity it confers springs not so much from the fraud of the usurper as from the wrong which the deception would otherwise work upon the rights of the lessee. Hockenbury vs. Snyder, 2 W. & S. 240. Baskin vs. Seechrist, 6 Barr, 154.
Another class of exceptions to this general principle is where the tenant has a good title, and a stranger purchases it bona fide and receives possession without any knowledge of the tenancy. Dikeman vs. Parrish, 6 Barr, 210. Thompson vs. Clark, 7 Barr, 62.
And so an exception exists when the title of the landlord has expired or been divested subsequently to the creation of the tenancy. As, if the landlord hold by a defeasible title or by an estate less than a fee, or he sells, or his title is divested by a judicial sale, the tenant may attorn to the true owner. Jackson vs. Rowland, 6 Wend. 666. Lansford vs. Turner, 5. J. J. Marsh, 104. Kinney vs. Doe, 8 Blackf. 350. Bowser vs. Bowser, 10 Humph. 49.-SHARSWOOD.
so long live, or if he should so long continue parson, is good:() 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.
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 life, even if it be pur auter vie, is a freehold; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate.(2) Hence it follows, that a lease for years may be made to commence in futuro, though a lease for life cannot.
As, if I *144]
lands to Titius to hold from Michaelmas next for *twenty
grant years, this is good; but to hold from Michaelmas next for the term of his natural life, is void. For no estate or freehold can commence in futuro; because it cannot 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.(r). 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 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 ;(8) the possession or seisin of the land remaining still in him who hath the freehold. Thus the word term does not merely signify the time specified in the lease, but the estate also and interest that passes by that lease; and therefore the term may expire, during the continuance of the time; as by surrender, forfeiture, and the like. For which reason, if I grant a lease to A. for the term of three years, and, after the expiration of the said term, to B. for six years, and A. surrenders or forfeits his lease at the end of one year, B.'s interest shall immediately take effect: but if the remainder had been to B. from and after the expiration of the said three years, or from and after the expiration of the said time, in this case B.'s interest will not commence till the time is fully elapsed, whatever may become of A.'s term.(t)
(*) Co. Litt. 45. (9) Ibid. 46.
(p) Co. Litt. 45.
() Ibid. 45.
(*) 5 Rep. 94.
6 That is, no estate of freehold in futuro can pass by a common-law conveyance, as by feoffment; but, by a conveyance under the statute of uses, there may be a grant of a freehold to commence in futuro, and in the mean time the interest undisposed of will be a resulting trust. Sand. on U. & T., 1 vol. 128, 2 vol. 7.—Chitty,
? As to this point, see Bac. Abr. Leases, M.
8 The term may end by forfeiture or re-entry for condition broken, either express or implied. A forfeiture may be incurred either by a breach of those conditions which are always implied or understood to be annexed to the estate, or those which may be agreed upon between the parties and expressed in the lease. The lessor, having the jus disponendi, may annex whatever conditions he pleases, provided they be not illegal, unreasonable, or repugnant to the grant itself, and upon breach of these conditions may avoid the lease. Any act of the lessee by which he disaffirms or impugns the title of his lessor comes within the first class; for to every lease the law tacitly annexes a condition that, if the lessee do any thing which may affect the interest of the lessor, the lease shall be void and the lessor may re-enter. Every such act necessarily determines the relation of landlord and tenant; since to claim under another, and at the same time to controvert his title,-to affect to hold under a lease, and at the same time to destroy the interest out of which the lease arises,-would be most palpable inconsistency. So where the tenant does an act which amounts to a disavowal of the title of the lessor, no notice to quit is necessary; as where the tenant has attorned to some other person, or answered an application for rent by saying that his connection as tenant with the party applying has ceased. In such cases as the tenant sets his landlord at defiance, the landlord may consider him either as his tenant or as a trespasser. Newman vs. Rutter, 8 Watts, 51 Willison vs. Watkins, 3 Pet. 49. Jackson vs. Vincent, 4 Wend. 633. Where there is a condition of re-entry reserved in a lease for non-payment of rent, the landlord must demand the precise amount due on the day it becomes due, at such a convenient time before sunset that the sum could be counted and on the most notorious part of the land,
Tenant for term of years hath incident to and inseparable from his estate, unless by special agreement, the same estovers which we formerly observed(u, that tenant for life was entitled to; that is to say, house-bote, fire-bote, ploughbote, and hay-bote ;(W) terms which have been already explained.(x)"
*With regard to emblements, or the profits of lands sowed by tenant for there is this difference between him, and tenant for life : that years,
[*145 where the term of 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 could never reap the profits of.(y) But where tho lease for years depends upon an uncertainty: as, upon the death of a 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, or his executors, shall have the emblements in the same manner that a tenant for life or his executors shall be entitled thereto.(z) Not so, if it determine by the act of the party himself: as if tenant for years does any thing that 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.(a)
II. 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 lease ob(") Page 122.
(v) Litt. 268. () Page 35.
Co. Litt. 45.
(*) Co. Lítt. 56.
though it be vacant. McCormick vs. Conell, 6 S. & R. 151. Jackson vs. Harrison, 17 Johns. 66. Jackson vs. Kipp, 3 Wend. 230. Conner vs. Bradley, 1 How. U.S. 211. Jones vs. Reed, 15 N. Hamp. 68.—SHARSWOOD.
• The tenant is bound to commit no waste, and to make fair and tenantable repairs, such as putting in windows or doors that have been broken by him, so as to prevent waste and decay of the premises ; but not to make substantial and lasting repairs, such as putting on new roofing. He is not liable for general repairs; nor is he compellable to restore premises if burned down or become ruinous by any other accident without any default on his part. And in all cases there is an implied agreement, arising out of the relation of landlord and tenant, to use the premises in an ordinary and proper manner. If a tenant chooses to put permanent repairs on the leased property without the consent of the landlord, he cannot charge them in account with him. Long vs. Fitzsimons, 1 W. & S. 530. Mumford vs. Brown, 6 Cowen, 475. Vai vs. Weld, 17 Missouri, 232. But when the repairs are made with the assent and by the authority of the landlord, the law is otherwise; for in that case the expense may be thrown upon the landlord, and that without any express promise to pay. If it was with his assent and for his benefit, the law will imply an undertaking to pay for them. Merely standing by without objecting will not suffice: there must be some act and encouragement from the landlord to entitle the tenant to charge the landlord. Cornell vs. Vanartsdalen, 4 Barr, 364. City Council vs. Moorhead, 2 Rich. 430. There is no implied covenant or warranty on the part of a lessor of a dwelling-house that the premises are tenantable. Cleves vs. Willoughby, 7 Hill, 83. Neidelt vs. Wales, 16 Missouri, 214. It is implied from the letting a farm for agricultural purposes that the tenant will cultivate the land according to the rules of good husbandry. Lewis vs. Jones, 5 Harris, 262.SHARSWOOD.
10 What was recognised as a good particular custom in England, in Wigglesworth vs. Dallison et al., 1 Dough. 201, that a tenant, whether by parol or deed, after the expiration of his term, shall have the way-going crop, and the right to enter, cut and carry it away, is the common law of Pennsylvania. Stultz vs. Dickey, 5 Binn. 285. In the nature of the thing it is reasonable that, where a lease commences in the spring of one year and ends in the spring of another, the tenant should have the crop of winter grain sown by him the autumn before the lease expired; otherwise he pays for the land one whole year without having the benefit of a winter crop. It is confined, however, to the winter grain. The tenant has no right to a crop of grain sown in the spring before his lease expires. Demi vs. Bossler, 1 Penna. R. 224. The straw is a constituent part of the way-going crop, Craig vs. Dale, 1 W. & S. 509. Iddings vs. Nagle, 2 W. & S. 22. So in New Jersey. Van Doren vs. Everitt, 2 South. 460.-SHARSWOOD.
tains possession.(6) Such tenant hath no certain 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 connection with the other at his own pleasure.(c) Yet this *146]
must be understood with 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.(d) 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.(e)
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, I think, settled, that (besides the express determination of the lessor's will, by declaring that the lessee shall hold no longer; which must either be made upon the land, (f) or notice must be given to the lessee)9) the exertion of any act of ownership by the lessor, as entering upon the premises and cutting timber, (h) taking a distress for rent and impounding it thereon,(i) or making a feoffment, or lease for years of the land to commence immediately;(k) 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;(1) or, which is instar omnium, the death or outlawry of either lessor or lessee ;(m) puts an end to or determines the estate at will.
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 *147]
appears in the case of *emblements before mentioned; and, by a parity
reason, the lessee, after the determination of the lessor's will, shall have reasonable ingress and egress to fetch away his goods and utensils.(n) And if rent be payable quarterly, or half-yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter or half year.(0) And, upon the same principle, courts of law have of late years leaned as much as possible against construing demises, where no certain term is mentioned, to be tenancies at 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:4
(6) Litt. 68.
(C) Co. Litt. 55.
(1) Ibid. 57.
11 A tenancy from year to year is where tenements are expressly or impliedly demised by the landlord to the tenant to hold from year to year, so long as the parties shall respectively please; and there cannot be such a tenancy determinable only at the will of the tenant; for then it would operate as a tenancy for his life, which is not creatable by parol, but only by feoffment or other deed. 8 East, 167. What was formerly considered as a tenancy at will has, in modern times, been construed to be a tenancy from year to year; and from a general occupation such a tenancy will be inferred, unless a contrary intent appear. 3 Burr. 1609. 1 T. R. 163. 3 T. R. 16. 8 T. R. 3. And so, in the cases in which the statute against frauds (29 Car. II. c. 3) declares that the letting shall only have the effect of an estate at will, it operates as a tenancy from year to year. 8 T. R. 3. 5 T. R. 471. So, where rent is received by a landlord, that raises an implied tenancy from year to year, though the tenant was originally let in under an invalid lease. 3 East, 451. So, if a tenant hold over by consent after the expiration of a lease, he becomes tenant from year to year, (5 Esp. R. 173,) even where the lease was determined by the death of the lessor tenant for life in the middle of a year. 1 H. B. 97.
But if the circumstances of the case clearly preclude the construction in favour of such a tenancy, it will not exist; as where a party let a shed to another for so long as