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responding with the termination of the first notice, in order to warrant an ejectment; and the holding over upon the tenancy from year to year is at the former rent. Where a tenant holds over after such notice, without any new stipulation, the law implies an agreement that it should be at the former rent. Bradley v. Coval, 4 Cow. (N. Y.) 349.

A lease though void as to the term may make the holding a tenancy from year to year to be determined upon notice. Thurber v. Dwyer, 10 R. I. 355. § 9. Tenant at Will--Defined.-A tenant at will is one who is let into the possession of lands to hold at the will of the owner,' as for example, where a person takes possession under an agreement to purchase, and then refuses to comply with the conditions of the agreement.'

A tenant at will is entitled to emblements in all cases except where he terminates the tenancy himself. As a general rule he is entitled to notice to quit."

If a person holding land in virtue of a parol gift, and who is consequently but a tenant at will, lease the land, and the donor merely permit the lessee to build and enjoy the term, the relationship of landlord and tenant is not created, and the lessee is not entitled to notice to quit. Jackson v. Rogers, 1 Johns. Cas. (N. Y.) 33; S. C. 2 Caines' Cas. (N. Y.) 314.

A tenancy from month to month without other limitation and determinable at the choice of either party to the lease is a tenancy at will, and so is a holding over pending negotiations for a renewal of the lease. The tenant is entitled to notice to quit, even if he holds over without paying. Hilsendegen v. Scheich, 55 Mich. 468.

A written demise without reservation of rent or named duration of term, creates a strict tenancy at will. Amick v. Brubaker, 101 Mo. 473; 14 S. W. Rep. 627 (1891).

The entry on land under a verbal contract to purchase makes the person in possession a tenant at will. Hall v. Wallace, 88 Cal. 434; 26 Pac. Rep. 360 (1891).

A wife's land was leased to a tenant, who was notified that his lien would not be extended on the old terms. The leasing of the premises was intrusted by the wife to her husband as her agent, and he leased to the tenant for a year at an increased rent. The tenant refused to accept a lease tendered by the wife. At the end of his first term, he paid a month's rent in advance, at the rate fixed in the lease made by the husband. The wife received the

1 12 Am. & Eng. Ency. 670. A mere gratuitous possession for life is a tenancy at will. Sallabah v. Marsh, 34 La. Ann. 1053.

Lyon v. Cunningham, 136 Mass. 532; Emmons v. Scudder, 115 Mass. 367; Herrell v. Sizeland, 81 Ill. 457; Lapham v. Norton, 71 Me. 83; Hillsendegen v. Schiech, 55 Mich. 468.

3 Debow v. Colfax, 10 N. J. 128;

Morgan v. Morgan, 65 Ga. 493.

4 Wilson v. Prescott, 62 Me. 115; Coomber v. Hefner, 86 Ind. 108; Anderson v. Taylor, 56 Calif. 131; Shipman v. Mitchell, 64 Tex. 174; Bennett v. Robinson, 27 Mich. 26; Munson v. Plumber, 59 Iowa, 120; Larned v. Hudson, 60 N. Y. 102; Clark v. Wheelock, 99 Mass. 114; Hazelton v. Colburn, 31 N. H. 406.



money, but it did not appear that she had notice of that lease. Held, that the acceptance of the month's rent did not create a tenancy on the terms fixed in the lease made by the husband, nor a tenancy from year to year, but a tenancy at will only. Fall v. Moore, 45 Minn. 515; 48 N. W. Rep. 404 (1891).

An instrument, in form a lease, purporting to lease premises for a certain time, providing for the payment of a certain rent per month, and that the lessor shall have a lien on the lessees' property on the premises in case the rent is not paid, and may take possession of the same as under a chattel mortgage, if not signed by the lessor as well as the lessees, makes the lessees tenants at will or by sufferance only, and gives the lessor no lien for rent after they have abandoned the premises. Nicholls v. Barnes (Neb.), 49 N. W. Rep. 342 (1891).

§ 10. Tenant at Sufferance Defined.-A tenant at sufferance is one who comes into possession of premises under a lawful title but holds over wrongfully after the expiration of the term;' as for example a lessce holding over after the expiration of a tenancy at will; a mortgagor after a sale or condition broken. At the common law a tenant at sufferance is not entitled to emblements nor a notice to quit."

B entered into possession, under an agreement for a conveyance, when the whole of the purchase money should be paid, and, in the meantime, to pay an annual rent of twenty-five bushels of wheat; B having paid rent for one year at least, becomes a tenant, and is entitled to notice to quit. Jackson v. Niven, 10 Johns. (N. Y.) 335; Taylor on Landlord and Tenant, 339.

Lessees, on holding over after the expiration of their lease, become tenants by sufferance. Sutton v. Hiram Lodge, 83 Ga. 770; 10 S. E. Rep. 585. (1890).

Where a tenancy at will is terminated by the execution of a lease of the premises to a third person, and converted into a tenancy at sufferance, the statutory liability of the tenant at sufferance for rent is to the lessee alone, and no judgment can be rendered in favor of the lessee and lessor as joint plaintiffs. Cofran v. Shepard, 148 Mass. 572; 20 N. E. Rep. 181 (1889).

§ 11. The Relation Once Established Presumed to Exist. -When the relation of landlord and tenant is once established, it attaches to all who may succeed the tenant, immediately or remotely, and the party succeeding the tenant is as much

1 12 Am. & Eng. Ency. 668.

2 Smith v. Littlefield, 51 N. Y. 541; Emmes v. Feely, 132 Mass. 346; Brown v. Smith, 83 Ill. 291; McCarthy v. Yale, 39 Calif. 585; Robinson v. Deering, 56 Me. 357; Abeel v. Hubbell, 52 Mich. 37; Rusell v. Fabyan, 34 N. H. 218; Condon v. Barr, 47 N. J. L. 113.

3 Mason v. Gray, 36 Vt. 311; Kings ley v. Ames, 2 Met. (Mass.) 29.

Milley v. Cheney, 88 Ind. 466. 5 Kinzie v. Wixom, 39 Mich. 384. But notice is sometimes required by statutes. Bennett v. Robinson, 27 Mich. 26; Jackson v. French, 3 Wend. (N. Y.) 337.

affected by the acts and acknowledgments of his predecessor as though they were his own. He takes the estate as it

existed in possession of his predecessor at the time of his taking.'

§ 12. Ending of the Term by Forfeiture.-Anciently a forfeiture of an estate resulted from disloyal acts by the holder, whether owner or tenant, against the interest of the feudal lord. As for example, a feoffment by a tenant for life was held to be a forfeiture of his estate for the reason that it was an attempt to dispose of the reversion." But in modern times the forfeiture of an estate results only upon the breach of some condition of the instrument creating the estate, as a default in the payment of rent, an attornment to a stranger, a denial of the landlord's title and the like."

13. By Breach of Condition.-A grantor or lessor may in creating a lesser estate impose any condition which is not illegal or repugnant to the grant. The grantee or lessee accepting the estate accepts it with the conditions imposed, and upon the breach by the grantee or lessee of any such conditions the estate becomes forfeited.*

The most usual conditions for the non-performance of which estates are declared forfeited, are conditions in restraint of alienation and waste,' against underletting the premises, selling, assigning or disposing of the lease,' covenants to insure buildings and to keep them insured, covenants to repair and keep in repair, etc.


§ 14. Determination of a Tenancy by the Non-Payment of Rent.—The right to terminate a tenancy by a notice to quit was given by the common law, and was necessarily incidental to a tenancy from year to year; the termination of a tenancy

1Jackson v. Davies, 5 Cow. (N. Y.)


22 Blackstone's Com. 275; Stat. 8 & 9, Vict. 100; 8 Am. & Eng. Ency. 446. 34 Kent's Com. 106; Nichols v. Eaton 91 U. S. 716; Broadway v. Adams, 133 Mass. 170; Anderson v. Carey, 36 Ohio St. 506; Chapman v. Wright, 20 Ill. 120; Jewett v. Berry, 20 N. H. 36; Saunders v. Freeman Dyer, 209; Machias Hotel v. Fisher, 56 Me. 321; 8 Am. & Eng. Ency. 446; Bac. Abr., Title, Leases.

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by the non-payment of rent, or the breach of a covenant or condition, arises only under express agreement, and seldom occurs but where the tenant has a written lease for a determinate period.'

The different remedies which the landlord may pursue in the event of the non-payment of the rent, are (1), covenant, to recover the rent itself; and (2) ejectment, to recover the premises for the non-payment of the rent. The remedy by ejectment is but a mode of enforcing the right of re-entry; and the authority to assert it depends in part upon the provisions of the contract as well as upon the provisions of the common and statute law. It is founded upon the provision of the contract which gives the party the right to re-enter in the event of the want of a sufficient distress on the premises to satisfy the rent; and where a right of re-entry for non-payment of rent is not reserved, the landlord can not at common law maintain ejectment on that ground. Tyler v. Heidorn, 46 Barb. (N. Y.) 439.

It was shown on the trial that one Wells entered into possession of the premises in question, in March, 1824, as a tenant of the lessor of the plaintiff for one year, to work the same on shares. He held over. In May, 1825, the defendant entered under Wells, (Wells remaining in possession,) to work the land on shares, and on the fourteenth of the same month an ejectment was commenced against him. The plaintiff was nonsuited for the reason that the defendant was a mere cropper: that Wells was the real tenant, and, remaining in possession, the action should have been brought against him. A motion was made to set aside the nonsuit. By the court, Savage, Ch. J.: "The only question in the case is, whether the defendant was entitled to notice to quit. Wells entered into possession lawfully; he hired the premises for one year, and continued in possession after that period; he was tenant from year to year, and was entitled to notice before an ejectment could be brought against him. The defendant coming in under Wells, stands in the same relation to the lessor. A tenant for a year, holding over, is tenant from year to year, and not at will; but if at will, he was entitled to notice. We therefore refuse to set aside the nonsuit." Jackson v. Salmon, 4 Wend. (N. Y.) 327.


§ 15. The Entry at Common Law. An actual entry upon the lands was formerly necessary before an ejectment could be maintained, and that the claimant's title must be of such a nature as to render his entry lawful. When, therefore, a lease for years was granted to the tenant, and the right of possession thereby transferred to him, the landlord could not legally enter upon the land during the continuance of the term, and was consequently without remedy to recover back his possession while the term lasted, although the tenant should neglect to render his rent, or otherwise disregard the conditions

'Adams on Ejectment, 182; Mor- wick v. Parker, 44 Пl. 326; Cunrill v. De La Granja, 99 Mass. 383; ningham v. Holton 55 Ma. 33; HenPardee v. Gray, 66 Calif. 524; Chad- drickson v. Belson, 21 Neb. 61.

of his grant. When terms for years increased in length and value, this became a serious evil to landlords. The tenant might be so indigent as to render an action of covenant upon the original lease altogether useless, and the premises might be left without a sufficient distress to countervail an arrear of rent. As a means of obviating these difficulties, it became the practice for landlords to insert in their leases a proviso declaring the lease forfeited, if the rent remained unpaid for a certain time after it became due, or if any other particular covenant of the lease were broken by the lessee, and empowering the landlord in such cases to re-enter upon and re-occupy lands.'


§ 16. What Conditions Are Valid in Law. The landlord, having the jus dispodendi, may annex whatever conditions he pleases to grant, provided they be neither contrary to the laws of the State, nor to the principles of reason, or public policy; and it is by these general maxims that our courts must be guided, when called upon to consider the validity of any particular covenant or conditions in a lease."

A condition in a lease not to sell or dispose of any wood or timber off of the demised premises, without permission, in writing, from the landlord, is a good and valid condition, and a breach thereof works a forfeiture of the estate. Verplanck v. Wright, 23 Wend. (N. Y.) 506.

A lease was for twenty-one years, and the proviso that the landlord might re-enter if the tenant became bankrupt. This proviso was holden valid, upon the principle, that, as it is reasonable for a landlord to restrain his tenant from assigning, so it is equally reasonable for him to guard against such an event as bankruptcy, for the consequence of bankruptcy would be an assignment; and that such a proviso is not contrary to any express law, nor against reason or public policy, for it is a proviso which can not injure the creditors, who would not rely on the possession of the land by the occupant without a knowledge also of the interest he had therein; and to discover this they must look into the lease itself, where they would find the proviso that the tenant's interest would be forfeited in case of bankruptcy. Buller, J., made a distinction between leases for short terms, and very long leases, with respect to provisos of this nature; because if they were to be inserted in very long leases, it would be tying up property for a considerable length of time, and be open to the objections of creating a perpetuity. It was a stipulation not against law, but merely against the act of the lessee himself, which it was competent for the lessor to make. Roe v. Galliers, 2 T. R. 133; Adams on Ejectment, 185.

Where a lease contains a covenant against waste, and also a clause of re-entry for a breach of covenants, if the lessee or his assigns commit waste, the lessor may bring ejectment. Jackson v. Brownson, 7 Johns. (N. Y.) 227.

1 Adams on Ejectment, 183.

Adams on Ejectment, 184.

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