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is a sufficient enjoyment to raise a presumption of title, as against the right of any other person. The time of enjoyment necessary for the prescription, is deemed to be uninterrupted, whether it has been continued from ancestor to heir, and from seller to buyer; or whether the use has been enjoyed during the entire period by one person.

§19. As a right may be acquired by use, so also it may be lost by disuse; and as an enjoyment for twenty years is necessary to found a presumption of a grant, and establish a right; an absolute discontinuance of the use for twenty years, (where a less period is not fixed by law,) will raise the presumption that the right has been released cr extinguished. Thus a title to land may pass from its actual owner by non-occupancy for twenty years; and a title to it may be acquired by an undisturbed occupant, who shall hold it in peaceable and uninterrupted possession for the same number of years.

CHAPTER L.

LEASES; ESTATES FOR LIFE; ESTATES FOR YEARS; ESTATES AT WILL; AND ESTATES BY SUFFERANCE; RENT, &C.

§1. REAL estate, the title to which is conveyed by deed, as distinguished from other estates in land, is called an estate of inheritance. An estate of inheritance, that is, an estate in lands that may be transmitted by the owner to his heirs, is a fee. No estate is deemed a fee, unless it may continue forever. When it is a pure and absolute inheritance, clear of any qualification or condition, it is called a fee-simple.

§ 2. An interest in lands which is to continue for a limited period, is usually conveyed by an instrument of writing, called lease. To lease means to let; but generally, to let real estate to another for rent or reward. The word de mise is often used instead of lease. The landlord, or person letting the estate, is called lessor; and the tenant, or person to whom the land is leased, is called lessee. Leases for a term longer than one year, are usually required to be

sealed, and in some states proved and recorded also, as deeds and mortgages.

§ 3. These limited interests in land are divided into estates for life, estates for years, estates at will, and estates by sufferance. An estate for life, is an estate conveyed to a person for the term of his natural life. Life estates held by lease, however, are not common in this country. Another kind of life estate is that which is acquired, not by the acts of the parties, as by lease, but by the operation of law. Such is the right of a husband to the real estate of his wife, acquired by her before or after marriage. Such also is the right of dower. (See Chap. XLVIII, § 9.)

§4. An estate for years, is a right to the possession and profits of land for a determinate period, for compensation, called rent; and it is deemed an estate for years, though the number of years should exceed the ordinary limit of human life. An estate for life is said to be a higher and greater estate than a lease for years, though the lease were for a thousand years; and if a lease should be for a less time than a year, the lessee would be ranked among tenants for years. Letting land upon shares for a single crop, is not considered a lease; and possession remains in the owner.

§ 5. A lessee for years may assign over his whole interest to another, unless restrained by agreement not to assign without leave of the lessor. And he may underlet for any less number of years than he himself holds; but he is himself liable to the landlord.

§ 6. A tenant for years, whose lease expires after the land is sown or planted, and before harvest, is not entitled to the crop, if the lease is for a certain period; for, knowing that his lease would expire before harvest time, he might have avoided the loss of his labor. It is believed that, in a few of the states, the tenant is entitled to the crop from grain sown in the autumn before the expiration of the lease, and cut the next summer after its expiration. But if the lease for years depends upon an uncertain event, the occurring of which would terminate the lease before the expiration of the term, the tenant would be entitled to the crop, if there were time to reap what has been sown, in case he should live.

§ 7. Where there is an express agreement to pay rent, the tenant can not avoid payment if the premises are de

stroyed, or if he is in any other manner deprived of their enjoyment and use, even without any default on his part. Hence, if land should be leased, with a flock of sheep, the tenant having agreed to pay a certain rent, and the sheep should all die, the full rent must be paid. So if the land should be destroyed by a flood, or the tenant driven from it by public enemies, he would be bound to pay rent. But if the land should be recovered from the tenant by a person having a better title than that derived from his landlord, he is not liable for rent after his use of the land has ceased.

§ 8. A tenant can not make repairs at the expense of the landlord, or deduct the cost of them out of the rent, if there has been no special agreement for that purpose. But if the premises, from want of repair, have become unsafe or useless, the tenant from year to year may quit without notice; and he would not be liable for any rent after the use had ceased to be beneficial.

§ 9. When rent is due, a tender of payment is good if made upon the premises; and if no place of payment has been agreed on, a personal tender off the land is also good. As to the time of payment, where there is no special agreement to the contrary, rent is due yearly, half-yearly, or quarterly, according to the usage of the country. Where there is no particular usage, the rent is due at the end of the year.

§ 10. An estate at will, is where land is let to another, to hold at the will of the lessor. Tenancies at will, strictly such, are not common. Such estates, when no certain term is agreed on, are construed to be tenancies from year to year; and each party is bound to give reasonable notice of an intention to terminate the estate. If the tenant holds over after the expiration of a lease for years, either by express consent of the landlord, or under circumstances implying consent, it is held to be evidence of a new contract without any definite period, and is construed to be a tenancy from year to year; and in those states in which the old English rule prevails, six months' notice must be given to the tenant to quit.

§ 11. What turns leases for uncertain terms into leases from year to year, is the landlord's reserving annual rent. A tenant placed on land without any terms prescribed or

rent reserved, is strictly a tenant at will; and it has been held, that such tenant is not entitled to notice to quit; but the general rule now seems to be, that even in such case, the six months' notice is necessary; or, as in some states, a reasonable notice.

§ 12. An estate at sufferance is that which is acquired by a tenant who has come into lawful possession of land, but who holds over by wrong after his interest has ceased. He is not entitled to notice to quit; and where there is no special statute, he is not liable for rent; and the landlord may enter, and remove the tenant and his goods with such gentle force as may be necessary. If undue force is used, the landlord would be liable to an action for forcible entry and detainer

CHAPTER LI.

CONTRACTS IN GENERAL; AND WHAT IS NECESSARY TO THEIR VALIDITY.

§ 1. A CONTRACT is an agreement between two or more persons, by which the parties agree to do, or not to do, a particular thing. Contracts are executory, when the stipulations remain to be executed, or when one party agrees to sell and deliver, at a future time, for a stipulated price, and the other agrees to accept and pay. Contracts are express or implied. They are express, when the parties contract in express words, or by writing; implied, when an act has been done which shows that the parties must have intended to contract; as, when a person employs another to do some service, it is presumed that the party employing intended to pay for the labor performed.

§ 2. Contracts are also distinguished as specialties and simple contracts. A specialty is a contract under seal; as a deed, or bond. This class of contracts, however, it is not intended particularly to consider in this place. We shall here treat chiefly of that common class of contracts called simple contracts, or contracts by parol. Parol signifies by word of mouth. Applied to contracts, however, it not only means

verbal contracts, but includes written contracts not under seal. Both are simple contracts; and the only distinction between them is in the mode of proof. The mutual understanding of the parties to a verbal contract, may be proved by parol evidence; but as the real intention of parties is more likely to be expressed in a written contract, the rule of law is, that parol evidence may not be admitted to contradict or vary the terms of a written instrument.

§ 3. Cases, however, sometimes arise, in which all that the parties intend is not comprehended in the terms of a written agreement, or in which the language of the writing is ambiguous or obscure. In such cases, parol evidence is admissible, not to vary the terms of a written instrument, but to explain what is doubtful, or to supply some deficiency. To deny such evidence in cases of this kind, would endanger the rights and interests of one or the other of the parties.

§ 4. To make a valid contract, the parties must be capable of contracting. They must be of sound mind. Hence idiots and lunatics are generally incompetent to make contracts. An idiot is a person born destitute of common sense, usually called a natural fool. A lunatic, or insane person, is one who has possessed his reason, but has been suddenly deprived of it. It was formerly supposed that this disease was produced by the influence of the moon. Hence, it is called lunacy, from luna, the Latin word for moon.

§ 5. If the lunacy is permanent, the lunatic is wholly incapable of contracting. But if it is merely intermittent, or by turns, a contract made during a lucid interval will be valid. If a person is a monomaniac, that is, one who is insane upon any one subject or class of subjects, he may contract in relation to subjects upon which he is sane. In the case of idiots, the general rule is, that if there is such a want of intelligence as to render the party incapable of acting in the ordinary affairs of life, or in the particular contract, his idiocy will annul his contract. To invalidate the

contract, it must appear that the party contracting did not at the time understand what he was about.

§ 6. Contracts by lunatics and idiots may be considered as not necessarily void, but only voidable; the validity or invalidity depending upon facts to be proved. The person seeking to avoid a contract on the ground of mental imbecility, must prove that the person contracting was at the

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