[*141] commonly of 365 days; for though in *bissextile or leap-year, it consists properly of 366, yet, by the statute 21 Hen. III, the increasing day in the 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 almanacks, 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 per

months shall be reckoned half a year, or one hundred and eighty-two days, and not lunar months. Cro. Jac. 166; 6 Co. 61.

So a quarter of a year consists but of ninety-one days, for the law does not regard the six hours afterwards. Co. Litt. 135, b.; 2 Roll. 521, 1. 40; Com. Dig. Ann. A.

But both half years and quarters are usually divided according to certain feasts or holidays, rather than a precise division of days, as Lady-day, Midsummer-day, Michaelmas-day, or Christmas, or Old Lady-day, (6th April), or Old Michaelmas-day, (the 11th October). In these cases, such division of the year by the parties is regarded by the law, and therefore, though half a year's notice to quit is necessary to determine a tenancy from year to year, yet a notice served on the 29th September to quit on the 25th March, being half a year's notice according to the above division, is good, though there be less than one hundred and eighty-two, viz.: one hundred and seventy-eight, days. 4 Esp. R. 5 and 198; 6 id. 53.

A month is solar, or computed according to the calendar, which contains thirty or thirty-one days, or lunar, which consists of twenty-eight days. Co. Litt. 135, b. In temporal matters, it is usually construed to mean lunar; in ecclesiastical, solar or calendar. 1 Bla. R. 450; 1 M. and S. 111; 1 Bing. Rep. 307. In general, when a statute speaks of a month without adding "calendar," or other words showing a contrary intention, it shall be intended a lunar month of twenty-eight days. See cases Com. Dig. Ann. B.; 6 Term. Rep. 224; 3 East, 407; 1 Bingh. R. 307. And generally, in all matters temporal, the term "month" is understood to mean lunar; but in matters ecclesiastical, as non-residence, it is deemed a calendar month; because in each of these matters a different mode of computation prevails; the term, therefore, is taken in that sense which is conformable to the subject matter to which it is applied; 2 Roll. Ab. 521, 51; Hob. 179; 1 Bla. R. 450; 1 M. and S. 117; 1 Bing. R. 307; Com. Dig. Ann. B.; and, therefore, when a deed states calendar months, and in pleading the word calendar be omitted, it is not necessarily a variance. 3 Brod. and B. 186.

When a deed speaks of a month, it shall be intended a lunar month, unless it can be collected from the context that it was intended to be calendar. 1 M, and S. 111; Com. Dig. Ann. B.; Cro. Jac. 167; 4 Mod. 185. So in all other contracts: 4 Mod. 185; 1 Stra. 446; unless it be proved that the general understanding in that department of trade is, that bargains of that nature are according to calendar months. 1 Stra. 652; 1 M. and S. 111. And the custom of trade, as in case of bills of exchange and promissory notes, has established, that a month named in those contracts shall be deemed calendar. 3 Brod. and B. 187.

In all legal proceedings, as in commitments, pleadings, &c., a month means four weeks. 3 Bur. 1455; 1 Bla. R. 450; Dougl. 463, 446. When a calendar month's notice of action is required, the day on which it is served is included, and reckoned one of the days; and therefore, if a notice be served on 28th of April, it expires on 27th of May, and the action may be commenced on 28th of May. 3 T. R. 623; 2 Campb. 294. And when a statute requires the action against an officer of customs to be brought within three months, they mean lunar, though the same act requires a calendar month's notice of action. 1 Bing. R. 307.

A day is natural, which consists of twenty-four hours; or artificial, which contains the time from the rising of the sun to the setting. Co. Litt. 135, a. A day is usually intended of a natural day, as in an indictment for burglary we say, in the night of the same day: Co. Litt. 135, a.; 2 Inst. 318. Sometimes days are calculated exclusively, as where an act required ten clear days' notice of the intention to appeal, it was held, that the ten days are to be taken exclusively, both of the day of serving the notice and the day of holding the sessions. 3 B. and A. 581. A legal act done at any part of the day will in general relate to the first period of that day. 11 East, 498.

The law generally rejects fractions of a day. 15 Ves. 257; Co. Litt. 135, b.; 9 East, 154; 4 T. R. 660; 11 East, 496, 498; 3 Co. 36, a. But though the law does not in general allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish for the purposes of justice; and I do not see why the very hour may not be so too where it is necessary, and can be done, for it is not like a mathematical point which cannot be divided. Per Ld. Mansfield, 3 Burr, 1434; 9 East, 154; 3 Coke Rep. 36, a. Therefore fraction of a day was admitted in support of a commission of bankruptcy, by allowing evidence that the act of bankruptcy, though on the same day, was previous to issuing the commission. 8 Ves. 30. So where goods are seized under a fieri facias the same day that the party commits an act of bankruptcy, it is open to inquire at what time of the day the goods were seized and the act of

Chap. 9.]

ESTATES FOR YEARS.

iod, but because it falls naturally into a quarterly division by weeks. (3) 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) (4) Therefere, 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. return to estates for years.

But to

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 as having any property of their own. And therefore they were not allowed [*142] 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 ancient law, be at any time defeated by a common recovery suffered by the tenant of the freehold; (f) which annihilated all leases for years then subsisting, unless afterwards renewed by the recoverer, whose title was supposed superior to his by whom those leases were granted.

(d) 6 Rep. 61.

(e) Co. Litt. 135.

(f) Co. Litt. 46.

bankruptcy was committed; and the validity of the execution depends on the actual priority. 4 Camp. 197; 2 B. and A. 586.

There is a distinction in law as to the certainty of stating a month or a day, and an hour when a fact took place; "circa horam" is sufficient; but not so as to a day, which must be stated with precision, though it may be varied from the proof. 2 Inst. 318.

It has been considered an established rule, that if a thing is to be done within such a time after such a fact, the day of the fact shall be taken inclusive. Hob. 139; Dougl. 463; 3 T. R. 623; Com. Dig. Temps. A.; 3 East, 407. And therefore where the statute 21 Jac. I, c. 19, s. 2, enacts, that a trader lying in prison two months after an arrest for debt shall be adjudged a 3 East, 407. When a month's notice of action bankrupt, that includes the day of the arrest. is necessary, it begins with the day on which the notice is given: 3 T. R. 623; and if a robbery be committed on the 9th October, the action against the hundred must be brought in a year inclusive of that day. Hob. 139. But where it is limited within such a time after the date of a deed, &c., the day of the date of the deed shall be taken exclusive; as if a statute require the enrollment within a specified time after date of the instrument. Hob. 139; 2 Campb. 294; Cowp. 714. Thus where a patent dated 10th May contains a proviso that a specification shall be enrolled within one calendar month, next and immediately after the date thereof, and the specification was enrolled on the 10th June following, it was held, that the month did not begin to run till the day after the date of the patent, and that the specification was in time. 2 Campb. 294; see 15 Ves. 248.]

(3) This rule of the common law is generally changed by statutes in the United States, and And in England a month will be held to mean "month" is declared to mean a calendar month. a calendar month where such is the apparent intent of the parties. R. v. Chawton, 1 Q. B. 247; Hipwell v. Knight, 1 Y. and C. 401.

(4) Fractions of a day are not regarded except for the purpose of guarding against injustice: Blydenburgh v. Cotheal, 4 N. Y. 418; or for the purpose of determining the actual priority of conflicting rights which have accrued on the same day. A week means a full week of seven days; and therefore if by statute or rule of court a notice is to be published for a certain number of weeks, the publication is not completed until that number of weeks has fully expired from the time of the first publication. Thus, if the publication is to be once in each week for six successive weeks, and the first publication is on Tuesday, the publication is not completed without including Monday of the seventh week, which is the forty-second day, and whatever was to be done dependent on such publication could not be done earlier than Tuesday of that week. Bunce v. Reed, 16 Barb. 347; Olcott v. Robinson, 20 id. 148. Saving's Society v. Thompson, 32 Cal. 347; Bowman v. Wood, 41 Ill. 203

423

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 (g) that by the ancient 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 observe in Madox's collection of ancient 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, (i) 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 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 [*143] they were little better than tenancies at the will of the landlord. 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) (5) A lease for so many years as J S shall live, is void from the beginning, (0) 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: (p) 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 per auter vie, is a freehold; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate. (q) (6) Hence it follows, that a lease for years may be made to commence in futuro, though a lease for life As, if I grant lands to Titius to hold from Michaelmas next for [*144] *twenty years, this is good; but to hold from Michaelmas next for the

cannot.

term of his natural life, is void.

(g) Mirror, c. 2, § 27. Co. Litt. 45, 46. (h) Madox Formulare Anglican, n°. 239, fol. 140. 245, fol. 146, for the like term, A. D. 1429. (i) 32 Ass. pl. 6. Bro. Abr. t. mordauncestor, 42; (1) Co. Litt. 45. (m) 6 Rep. 35.

.

For no estate of freehold can commence

Demise for eighty years, 21 Ric. II, Ibid. n°. 1bid., no. 248,. fol. 148, for fifty years, 7 Edw. IV. spoliation, 6. (k) Stat. of mortmain, 7 Edw. I (n) Co. Litt. 46. (0) Ibid. 45. (p) Ibid. (q) Ibid. 46.

(5) Our author means here, we apprehend, that the instrument, if in such form only as would be requisite to create an estate for years, is void, for a conveyance by feoffment in these terms might be good as an estate for the life of J S.

A devise of lands to an executor for the payment of debts, creates an estate for years under the maxim referred to in the text. 1 Cruise Dig. 223; and see Batchelder v. Dean, 16 N. H. 268. A lease "for years," without mentioning how many, is for two certain. Dunn v. Cartright, 4 East, 29. And a lease for seven years, or for fourteen years, is for seven years, and for fourteen as soon as the lessee shall so elect. Doe v. Dixon, 9 East, 15. As to tenancies from year to year, see note p. 147, post.

(6) See Matter of Gay, 5 Mass. 419; Brewster v. Hill, 1 N. H. 350; Bisbee v. Hall, 3 Ohio, 449; Dillingham v. Jenkins, 7 S. and M. 479; Spangler v. Stanler, 1 Md. Ch. Dec. 36. The constitutions of New York and Michigan forbid leases of agricultural lands for a longer period than twelve years.

in futuro; (7) 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. (7) 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: (s) 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) (8)

Tenant for term of years hath incident to and inseperable 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) (9)

(7) 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 rent undisposed of will be a resulting trust. Sand. on U. and T. 1 vol. 128; 2 vol. 7.]

(8) It is a general rule that one who is put in possession of premises by a lessor, as his tenant, shall not be allowed, while he retains such possession, to question his lessor's title in any suit brought by the latter to recover either the rent agreed upon, or the possession of the premises, or to enforce any of the stipulations or agreements contained in the lease. Gray v. Johnson, 14 N. H. 414; Brown v. Dysinger. 1 Rawle, 408; Dezell v. Odell, 3 Hill, 219; Hodges v. Shields, 18 B. Monr. 830; Coburn v. Palmer, 8 Cush. 124; Moore v. Beasley, 3 Ohio, 294; Caldwell v. Harris, 4 Humph. 24; Lee v. Payne, 4 Mich. 106. The tenant in such case is said to be estopped from disputing the landlord's title; and the rule of estoppel applies also to a sub-tenant, or any other person who may have been put into possession by the tenant: Phillips v. Rothwell, 4 Bibb, 33; and it applies in favor of any one who may have become the assignee of the lessor. Funk's Lessee v. Kincaid, 5 Md. 404. And any agreement of the tenant to attorn or pay rent to a third person. is so far void that the tenant himself may repudiate it. Byrne v. Beeson, 1 Doug. Mich. 179. The estoppel, however, only continues during the term. Page v. Kinsman, 43 N. H. 331; Zeller's Lessee v. Eckert, 4 How. 289; Jackson v. Collins, 11 Johns. 1; Duke v. Harper, 6 Yerg. 230; Doe v. Reynolds, 27 Ala. 376. And if the lessor's title has expired during the term, the tenant may avail himself of that fact to resist the landlord's demands. Jackson v. Rowland, 6 Wend. 666; Wild's Lessee v. Serpell, 10 Gratt. 415; Tilghman v. Little, 13 Ill. 241. He may show, also, that he has been evicted by legal proceedings, under a title paramount to that of the landlord, or that on demand of possession being made under such a title, he has yielded to it and surrendered possession. Simers v. Saltus, 3 Denio, 217; Morse v. Goddard, 13 Metc. 177; Stewart v. Roderick, 4 W. and S. 188. But if he surrender to an adverse claim without legal proceedings, he takes upon himself the burden of proving that such adverse claim was a valid one. If a tenant buys in an outstanding title, he should nevertheless surrender possession: Hodges v. Shields, 18 B. Monr. 832; and afterwards he is in position to assert his own title. Williams v. Garrison, 29 Geo. 503. If the tenant is evicted from part of the premises under paramount title, he is entitled to an abatement of rent in proportion Lawrence v. French, 25 Wend. 443; Martin v. Martin, 7 Md. 375; but if he is disturbed in the possession of any part of the premises by the landlord, or if the conduct of the latter renders a reasonable enjoyment of the premises impracticable, the tenant may treat it as an eviction, and defeat the collection of rent. Dyett v. Pendleton, 8 Cow. 727; Lewis v. Payn, 4 Wend 423; Wilson v. Smith, 5 Yerg. 379; Shumway v. Collins, 6 Gray, 227.

(9) In general, where the lessee of premises has not exacted of the lessor any covenants respecting the condition of the premises, or the preservation or repair of the buildings, he takes them in the condition in which they are at the time, and he cannot oblige the landlord to put them 425

VOL. I.-54

*With regard to emblements, or the profits of lands sowed by tenant

[ *145] for years, there is this difference between him and tenant for life; that

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 the 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 estates 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 left by one man to another, to have and to hold at the will of the lessor; and the tenant by force of this lease obtains possession. (b) 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 connexions with the other at his own pleasure. (c) Yet this must be understood with some restriction. *For if the tenant [*146] at will sows his land, and the landlord, before the corn is ripe, or before it is reaped, put 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;

in tenantable condition. Sutton v. Temple, 12 M. and W. 52; Hart v. Windsor, id. 68; Arden v. Pullen, 10 M. and W. 321; Foster v. Peyser, 9 Cush. 242; McGlashan v. Tallmadge, 37 Barb. 313; Elliott v. Aiken, 45 N. H. 36. And if the principal value of the premises consists of buildings, and after the term commences the buildings are accidentally destroyed, the tenant, in the absence of an express agreement to that effect, can neither compel the landlord to rebuild, nor can he resist the payment of the rent agreed upon. Pindar v. Ainsley, cited, 1 T. R. 312; Hallett v. Wylie, 3 Johns. 44; Phillips v. Stevens, 16 Mass. 238. And equity can give no relief in such a case. Holtzapffel v. Baker, 18 Ves. 115. But the statutes of some states have made provision for such cases. If the premises leased consist of a single room only, and that is wholly destroyed, the right to further rent is gone. Graves v. Berdan, 29 Barb. 100, and 26 N. Y. 498. And see Winton v. Cornish, 5 Ohio, 477.

A tenant may assign his interest under the lease, or give sub-leases, if he has not covenanted in the lease not to do so; and a covenant not to do the one will not preclude his doing the other. Robinson v. Perry, 21 Geo. 183; Copland v. Parker, 4 Mich. 660. As to what constitutes an assignment, and what a sub-letting, see 1 Washb. on Real Prop. 333. The parting by the tenant of his entire interest in the term is an assignment, but if he make a lease to another under which he will have any reversionary interest in the term, it is a sub-letting.

As regards private nuisances upon leased premises, it may be remarked that a landlord who has leased his premises in good condition and not covenanted to repair, is not responsible for injuries caused by a nuisance created during the tenancy. Bears v. Ambler, 9 Penn. St. 193; Lowell v. Spaulding, 4 Cush. 277. A tenant for years-and the rule is the same as regards an alienee of lands-is not liable for the continuance of a nuisance existing at the time of the transfer of the land to him. until notified thereof and requested to remove it. Penruddock's Case, 5 Co. 102; Pierson v. Glean, 2 N. J. 37; Johnson v. Lewis, 13 Conn. 303; Woodman v. Tufts, 9 N. H. 88; Nichols v. Boston, 98 Mass. 39; Dodge v. Stacy, 39, Vt. 559. But see Caldwell v. Gale, 11 Mich. 77; Bonner v. Welborn, 7 Ges. 314. If, however, the tenant voluntarily continue the nuisance, it seems he may be held responsible to the party injured thereby. Morris B. and C. Co. v. Ryerson, 3 Dutch. 457; Crommelin v. Coxe, 30 Alā. 318.