Front Page Titles (by Subject) CHAPTER IX.: OF ESTATES LESS THAN FREEHOLD. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER IX.: OF ESTATES LESS THAN FREEHOLD. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF ESTATES LESS THAN FREEHOLD.
Of estates that are less than freehold, there are three sorts: 1. Estates for years: 2. Estates at will: 3. Estates by sufferance.
I. An estate for years is a contract for the possession of lands or tenements for some determinate period; and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee,(a) and the lessee enters thereon.(b)1 If the lease be but for half a year or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of.(c) And this may, not improperly, lead us into a short digression concerning the division and calculation of time by the English law.2
The space of a year3 is a determinate and well-known period, consisting commonly of 365 days; for though in bis*[*141sextile or leap years 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 almanacs, commencing at the calends of each month, whereof in a year there are only twelve.4 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 **142]receive and account for the profits at a settled price, than 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;(f) 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 leases 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 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.,(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, *[*143and with the same inferiority to freeholds, as when 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.(l) 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;(o) 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 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.(q) Hence it follows, that a lease for years may be made to commence in futuro, though a lease for life cannot. 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 term of his natural life, is void. For no estate or freehold can commence in futuro;6 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;(s) the possession or seisin of the land remaining still in him who hath the freehold.7 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 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, plough-bote, and hay-bote;(w) terms which have been already explained.(x)9
*[*145With regard to emblements, or the profits of lands sowed by tenant 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 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)10
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 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 connection with the other at his own pleasure.(c) Yet this must be understood with some restriction. **146]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)(g) 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;(l) 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 appears in the case of **147]emblements before mentioned; and, by a parity of 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.(o) 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:11 in which case they will not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other, which is generally understood to be six months.(p)12
There is one species of estates at will that deserves a more particular regard than any other; and that is, an estate held by copy of court-roll; or, as we usually call it, a copyhold estate. This, as was before observed,(q) was in its original and foundation nothing better than a mere estate at will. But, the kindness and indulgence of successive lords of manors having permitted these estates to be enjoyed by the tenants and their heirs, according to particular customs established in their respective districts; therefore, though they still are held at the will of the lord, and so are in general expressed in the court-rolls to be, yet that will is qualified, restrained, and limited, to be exerted according to the custom of the manor. This custom, being suffered to grow up by the lord, is looked upon as the evidence and interpreter of his will: his will is no longer arbitrary and precarious; but fixed and ascertained by the custom to be the same, and no other, that has time out of mind been exercised and declared by his ancestors. A copyhold tenant is therefore now full as properly a tenant by the custom as a tenant at will; the custom **148]having arisen from a series of uniform wills. And therefore it is rightly observed by Calthorpe,(r) that “copyholders and customary tenants differ not so much in nature as in name; for although some be called copyholders, some customary, some tenants by the virge, some base tenants, some bond tenants, and some by one name and some by another, yet do they all agree in substance and kind of tenure; all the said lands are holden in one general kind, that is, by custom and continuance of time; and the diversity of their names doth not alter the nature of their tenure.”
Almost every copyhold tenant being therefore thus tenant at the will of the lord according to the custom of the manor; which customs differ as much as the humour and temper of the respective antient lords, (from whence we may account for their great variety,) such tenant, I say, may have, so far as the custom warrants, any other of the estates or quantities of interest, which we have hitherto considered, or may hereafter consider, and hold them united with this customary estate at will. A copyholder may, in many manors, be tenant in fee-simple, in fee-tail, for life, by the curtesy, in dower, for years, at sufferance, or on condition: subject, however, to be deprived of these estates upon the concurrence of those circumstances which the will of the lord, promulgated by immemorial custom, has declared to be a forfeiture, or absolute determination, of those interests; as in some manors the want of issue-male, in others the cutting down timber, the non-payment of a fine, and the like. Yet none of these interests amount to a freehold; for the freehold of the whole manor abides always in the lord only,(s) who hath granted out the use and occupation, but not the corporal seisin or true legal possession, of certain parcels thereof, to these his customary tenants at will.
The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-**149]simple and also tenant at the lord’s will, seems to have arisen from the nature of villenage tenure; in which a grant of any estate of freehold, or even for years absolutely, was an immediate enfranchisement of the villein.(t) The lords therefore, though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes be descendible to their issue, yet, not caring to manumit them entirely, might probably scruple to grant them any absolute freehold; and for that reason it seems to have been contrived, that a power of resumption at the will of the lord should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands: and of course, as the freehold of all lands must necessarily rest and abide somewhere, the law supposed it still to continue and remain in the lord. Afterwards, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate in their lands, on performing their usual services, but yet continued to be styled in their admissions tenants at the will of the lord,—the law still supposed it an absurdity to allow, that such as were thus nominally tenants at will could have any freehold interest; and therefore continued and now continues to determine, that the freehold of lands so holden abides in the lord of the manor, and not in the tenant; for though he really holds to him and his heirs forever, yet he is also said to hold at another’s will. But with regard to certain other copyholders of free or privileged tenure, which are derived from the ancient tenants in villein-socage,(u) and are not said to hold at the will of the lord, but only according to the custom of the manor, there is no such absurdity in allowing them to be capable of enjoying a freehold interest: and therefore the law doth not suppose the freehold of such lands to rest in the lord to whom they are holden, but in the tenants themselves;(v) who are sometimes called customary freeholders, being allowed to have a freehold interest, though not a freehold tenure.
*[*150However, in common cases, copyhold estates are still ranked (for the reasons above mentioned) among tenancies at will; though custom, which is the life of the common law, has established a permanent property in the copyholders, who were formerly nothing better than bondmen, equal to that of the lord himself, in the tenements holden of the manor; nay, sometimes even superior; for we may now look upon a copyholder of inheritance, with a fine certain, to be little inferior to an absolute freeholder in point of interest, and in other respects, particularly in the clearness and security of his title, to be frequently in a better situation.13
III. An estate at sufferance is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. As if a man takes a lease for a year, and after a year is expired continues to hold the premises without any fresh leave from the owner of the estate. Or, if a man maketh a lease at will and dies, the estate at will is thereby determined: but if the tenant continueth possession, he is tenant at sufferance.(w)14 But no man can be tenant at sufferance against the king, to whom no laches, or neglect in not entering and ousting the tenant, is ever imputed by law; but his tenant, so holding over, is considered as an absolute intruder.(x) But, in the case of a subject, this estate may be destroyed whenever the true owner shall make an actual entry on the lands and oust the tenant: for, before entry, he cannot maintain an action of trespass against the tenant by sufferance, as he might against a stranger:(y) and the reason is, because the tenant being once in by a lawful title, the law (which presumes no wrong in any man) will suppose him to continue upon a title equally lawful; unless the owner of the land by some public and avowed act, such as entry is, will declare his continuance to be tortious, or, in common language, wrongful.
**151]Thus stands the law with regard to tenants by sufferance, and landlords are obliged in these cases to make formal entries upon their lands,(z) and recover possession by the legal process of ejectment;15 and at the utmost, by the common law, the tenant was bound to account for the profits of the land so by him detained. But now, by the statute 4 Geo. II. c. 23, in case any tenant for life or years, or other person claiming under or by collusion with such tenant, shall wilfully hold over after the determination of the term, and demand made and notice in writing given, by him to whom the remainder or reversion of the premises shall belong, for delivering the possession thereof; such person, so holding over or keeping the other out of possession, shall pay for the time he detains the lands, at the rate of double their yearly value. And, by statute 11 Geo. II. c. 19, in case any tenant, having power to determine his lease, shall give notice of his intention to quit the premises, and shall not deliver up the possession at the time contained in such notice, he shall thenceforth pay double the former rent, for such time as he continues in possession. These statutes have almost put an end to the practice of tenancy by sufferance, unless with the tacit consent of the owner of the tenement.16
[(a) ] We may here remark, once for all, that the terminations of “—or” and “—ee” obtain, in law, the one an active, the other a passive, signification; the former usually denoting the doer of any act, the latter him to whom it is done. The feoffor is he that maketh a feoffment; the feoffee is he to whom it is made. The donor is one that giveth lands in tail; the donee is he who receiveth it. He that granteth a lease is denominated the lessor; and he to whom it is granted, the lessee. Litt. 57.
[(b) ] Ibid. 58.
[1 ] Of course our author will be understood to put this case of letting only as a particular instance of one mode in which an estate for years may be created. See post, p. 143. There are obviously various ways in which such an estate may arise. Thus, where a person devises lands to his executors for payment of his debts, or until his debts are paid, the executors take an estate, not of freehold, but for so many years as are necessary to raise the sum required. Carter vs. Barnardiston, 1 P. Wms. 509. Hitchens vs. Hitchens, 2 Vern. 404. S. C. 2 Freem. 242. Doe vs. Simpson, 5 East, 171. Doe vs. Nicholls, 1 Barn. & Cress. 342. Though, in such case, if a gross sum ought to be paid at a fixed time, and the annual rents and profits will not enable them to make the payment within that time, the court of chancery will direct a sale or mortgage of the estate, as circumstances may render one course or the other most proper. Barry vs. Askham, 2 Vern. 26. Sheldon vs. Dormer, 2 Vern. 311. Green vs. Belchier, 1 Atk. 506. Allan vs. Backhouse, 1 Ves. & Bea. 75. Bootle vs. Blundell, 1 Meriv. 233.—Chitty.
[(c) ] Ibid. 67.
[2 ] In estimating the language which is necessary to constitute a lease, the form of words used is of no consequence. It is not necessary that the term lease should be used. Whatever is equivalent will be equally available. If the words assume the form of a license, covenant, or agreement, and the other requisites of a lease are present, they will be sufficient. Moore vs. Miller, 8 Barr, 283. Watson vs. O’Kern, 6 Watts, 368. Offerman vs. Starr, 2 Barr, 394. Grenough’s Appeal, 9 Barr, 18. Mashier vs. Reding; 3 Fairf. 478. It is necessary that the contract should have reference to, and include, the possession of the premises by the tenant. An agreement by the owner of lands or farms, in possession, with a person to cultivate and sow the land, or some portion thereof, with corn or grain of some sort, on condition of the latter having a certain portion of the grain grown thereon, does not make such person a tenant. Greber vs. Kleckner, 2 Barr, 289. Caswell vs. Districh, 15 Wend. 379. Haywood vs. Miller, 3 Hill, 90. An agreement for a lease will be construed to be a present demise, if no future formal lease be contemplated, and especially if possession be taken under it. Jenkins vs. Eldrige, 3 Story, 325.—Sharswood.
[3 ] As to time, and the mode of computing it in general, see Com. Dig. tit. Ann. and tit. Temps; Vin. Abr. tit. Time; Bac. Abr. Leases, E. 2 and 3; Burn, Ecc. L. Kalendar, Jacob. Dic. tit. Day, tit. Month, and tit. Year.
Before 1752, the year commenced on the 25th March, and the Julian calendar was used, and much inaccuracy and inconvenience resulted, which occasioned the introduction of the new style by the 24 Geo. II. c. 23, which enacts that the 1st January shall be reckoned to be the first day of the year, and throws out eleven days in that year, from 2d September to the 14th, and in other respects regulates the future computation of time, with a saving of ancient customs, &c. See the statute set forth in Burn, Ecc. L. tit. Kalendar. It has been held that, in a lease or other instrument under seal, if the feast of Michaelmas, &c. be mentioned, it must be taken to mean New Michaelmas, and parol evidence to the contrary is not admissible, (11 East, 312;) but upon a parol agreement it is otherwise. 4 B. & A. 588.
The year consists of three hundred and sixty-five days; there are six hours, within a few minutes, over in each year, which every fourth year make another day, viz., three hundred and sixty-six, and, being the 29th February, constitute the bissextile or leap year. Co. Litt. 135. 2 Roll. 521; 1. 35. Com. Dig. Ann. A. 24 Geo. II. c. 23, s. 2. Where a statute speaks of a year, it shall be computed by the whole twelve months, according to the calendar, and not by a lunar month, (Cro. Jac. 166;) but if a statute direct a prosecution to be within twelve months, it is too late to proceed after the expiration of twelve lunar months. Carth. 407. A twelvemonth, in the singular number, includes all the year; but twelve months shall be computed according to twenty-eight days for every month. 6 Co. 62.
Half a year consists of one hundred and eighty-two days; for there shall be no regard to a part or a fraction of a day. Co. Litt. 135, b. Cro. Jac. 166. The time to collate within six 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 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 Esp. 53. Selw. N. P. Ejectment, V. Adams, 123.
As to the construction of the term “a year,” it was held that the 43 Geo. III. c. 84, which prohibits under a penalty a spiritual person from absenting himself from his benefice for more than a certain time in any one year, means a year from the time when the action is brought for the penalty. 2 M. & S. 534.
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. & S. 111. 1 Bingh. 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. Abr. 521, 51. Hob. 179. 1 Bla. R. 450. 1 M. & S. 117. 1 Bingh. R. 307. Com. Dig. Ann. R.;) and therefore, when a deed states calendar months, and in pleading the word calendar be omitted, it is not necessarily a variance. 3 Brod. & 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. & 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. & 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. & B. 187.
In all legal proceedings, as in commitments, pleadings, &c., a month means four weeks. 3 Burr. 1455. 1 Bla. R. 450. Doug. 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 April, it expires on 27th May, and the action may be commenced on 28th 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 Bingh. 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. & 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 lord 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 bankruptcy was committed; and the validity of the execution depends on the actual priority. 4 Camp. 197. 2 B. & A. 586.
An hour consists of sixty minutes. Com. Dig. Ann. C. By a misprint in 2 Inst. 318, it is stated to be forty minutes. There is a distinction in law as to the certainty of stating a month or 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 in 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. Doug. 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 bankrupt, that includes the day of the arrest. 3 East, 407. When a month’s notice of action 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 enrolment within a specified time after date of the instrument. Hob. 139. 2 Camp. 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 Camp. 294.
However, in a case in equity, the master of the rolls, after considering many of the decisions, said, upon the first part of this rule, that whatever dicta there may be that, 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.—Chitty.
[4 ] 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.
[(d) ] 6 Rep. 61.
[(e) ] Co. Litt. 135.
[(f) ] Co. Litt. 46.
[(g) ] Mirror, c. 2, 27. Co. Litt. 45, 46.
[(h) ] Madox Formulare Anglican. n°. 239, fol. 140. Demise for eighty years, 21 Ric. II. . . . Ibid. n°. 245, fol. 146, for the like term, ad 1429. . . . Ibid. n°. 248, fol. 148, for fifty years, 7 Edw. IV.
[(i) ] 32 Ass. pl. 6. Bro. Abr. t. mordauncestor, 42; spoliation, 6.
[(k) ] Stat. of mortmain, 7 Edw. I.
[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. Tenbrook, 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 matters 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.
[(l) ] Co. Litt. 45.
[(m) ] 6 Rep. 35.
[(n) ] Co. Litt. 46.
[(o) ] Ibid. 45.
[(p) ] Co. Litt. 45.
[(q) ] Ibid. 46.
[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.
[(r) ] 5 Rep. 94.
[(s) ] Co. Litt. 46.
[7 ] As to this point, see Bac. Abr. Leases, M.
[(t) ] Ibid. 45.
[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, 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.
[(u) ] Page 122.
[(w) ] Co. Litt. 45.
[(x) ] Page 35.
[9 ] 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.
[(y) ] Litt. 68.
[(z) ] Co. Litt. 56.
[(a) ] Ibid. 55.
[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.
[(b) ] Litt. 68.
[(c) ] Co. Litt. 55.
[(d) ] Ibid. 56.
[(e) ] Ibid. 55.
[(f) ] Ibid.
[(g) ] 1 Ventr. 248.
[(h) ] Co. Litt. 55.
[(i) ] Ibid. 57.
[(k) ] 1 Roll. Abr. 860. 2 Lev. 88.
[(l) ] Co. Litt. 55.
[(m) ] 5 Rep. 116. Co. Litt. 57, 62.
[(n) ] Litt. 69.
[(o) ] Salk. 414. 1 Sid. 339.
[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 both parties should like, on an agreement that the tenant should convert it into a stable, and the defendant should have all the dung for a compensation, there being no reservation referable to any aliquot part of a year, this was construed to be an estate at will. 4 Taunt. 128. And it must by no means be understood that a strict tenancy at will cannot exist at the present day; for it may clearly be created by the express will of the parties. Id. ibid. 5 B. & A. 604. 1 Dowl. & R. 272. So, under an agreement that the tenant shall always be subject to quit at three months’ notice, he is not tenant from year to year, but from quarter to quarter. 3 Camp. 510.—Chitty.
[(p) ] This kind of lease was in use as long ago as the reign of Henry VIII., when half a year’s notice seems to have been required to determine it. Tr. 13 Hen. VIII. 15, 16.
[12 ] When a lease or demise is determinable on a certain event or at a particular period, no notice to quit is necessary, because both parties are equally apprized of the determination of the term. 1 T. R. 162. But in general, when the tenancy would otherwise continue, there must be given half a year’s (demy an, Tr. 13 Hen. VIII. 15, 16) notice to quit, expiring at that time of the year when the tenancy commenced, whether the tenancy was of land or buildings, (1 T. R. 159;) and where the tenant enters on different parts of the premises at different times, the notice should be given with reference to the substantial and principal part of them, and will be good for all; and what is the substantial part is a question for the jury. See instances 2 Bla. R. 1224. 6 East, 120. 7 East, 551. 11 East, 498. As to the case of lodgings, that depends on a particular contract, and is an exception to the general rule. The agreement between the parties may be for a month or less time, and there a much shorter notice may suffice, (1 T. R. 162;) and usually the same space of time for the notice is required as the period for which the lodgings were originally taken, as a week’s notice when taken by the week, and a month’s when taken by the month, and so on. 1 Esp. Rep. 94. Adams, 124. If lodgings are taken generally at so much per annum, it is construed to be only a taking for one year, and no notice to quit is necessary. 3 B. & C. 90.
When it is doubtful at what time of the year the tenancy commenced, it is advisable to serve a notice “to quit at the expiration of the current year of your tenancy, which shall expire next after one half-year from the time of your being served with this notice.” 2 Esp. R. 589. See further as to notice to quit, the service and waiver thereof, Adams on Ejectment, 96 to 140. 1 Saunders, by Patteson & Williams, 276, note a.—Chitty.
It may be considered as now definitively settled that a general letting for no determinate period of time, but by which an annual rent is reserved, payable quarterly or otherwise, is a lease from year to year so long as both parties please. Lesley vs. Randolph, 4 Rawle, 123. Squires vs. Huff, 3 A. K. Marsh, 17. Sullivan vs. Enders, 3 Dana. 66.
Though a parol demise for more than three years is void by the statute, or enures as a lease at will only, yet it is construed as a tenancy from year to year. Schuyler vs. Leggett, 2 Cowen, 660. Strong vs. Crosby, 21 Conn. 398.
Where a tenant for a term certain holds over, the landlord may elect to consider him as a tenant from year to year on the terms of the original lease. Diller vs. Roberts, 13 S. & R. 60. Bacon vs. Brown, 9 Conn. 334. Brown vs. Knapp, 1 Pick. 332. Fronty vs. Wood, 2 Hill, S. C. 367. Conway vs. Starkweather, 1 Denio, 113. De Young vs. Buchanan, 10 Gill & Johns. 149. Hemphill vs. Flynn, 2 Barr, 144.
Where the lease is for a term certain which has expired, the landlord may enter at once without legal process and dispossess the tenant, provided he can do so without personal violence or a breach of the peace. Overdeer vs. Lewis, 1 W. & S. 90. He may bring ejectment at once without having given any notice to quit. Bedford vs. McElherron, 2 S. & R. 50. Evans vs. Hastings, 9 Barr, 273. Durell vs. Johnson, 17 Pick. 263. Allen vs. Jaquish, 21 Wend. 628. In case, however, of a tenancy at will or from year to year, the relation cannot be terminated on the part of the landlord without a notice to quit,—six months in England, and generally in this country to expire with the expiration of the year. Fahnestock vs. Faustenaur, 5 S. & R. 174. In England the same thing holds true è converso of the tenant,—that he cannot put a legal period to the tenancy without a similar notice to his landlord. But see Cook vs. Neilson, Brightly Rep. 463. S. C. 10 Barr. 41.—Sharswood.
[(q) ] Page 93.
[(r) ] On copyholds, 51, 54.
[(s) ] Litt. 81. 2 Inst. 325.
[(t) ] Mirr. c. 2, 28. Litt. [Editor: illegible character][Editor: illegible character][Editor: illegible character]
[(u) ] See page 98, &c.
[(v) ] Fitz. Abr. tit. corone; 310, custom. 12 Bro. Abr. tit. custom, 2, 17; tenant per copie, 22. 9 Rep. 76. Co. Litt. 59. Co. Copyh. 32. Cro. Car. 229. 1 Roll. Abr. 562. 2 Ventr. 143. Carth. 432. Lord Raym. 1225.
[13 ] Copyhold or customary tenure may be put an end to by a grant from the lord of the freehold or of his seignorial rights. This is called enfranchisement, and the tenant by this means become seised in common socage of the lands, which he thenceforth holds as tenant to the superior lord of whom the lord held before the grant. If again copyhold and freehold titles become united in one person, extinguishment takes place, the copyhold interest merging and becoming extinguished in the superior one. Formerly the granting of enfranchisement to a tenant was entirely within the breast of the lord, and the tenant had no means of obtaining an alteration in his tenure. Where the fine imposed by the lord upon the change of a tenant is arbitrary instead of certain, the position of the copy-holder is a very disadvantageous one; and the legislature has of late years been disposed to look upon the impediments thus opposed to the free alienation of lands as a public grievance. Accordingly, several acts have been passed during the present reign (Victoria) with the object of facilitating enfranchisement, the last of which (15 & 16 Vict. c. 51) has enabled tenants to compel the lord to grant enfranchisement, and the lord, if he pleases, to compel tenants to accept it,—in either case, on terms which in case of dispute are fixed by the commissioners appointed for this purpose by the statute.—Kerr.
[(w) ] Co. Litt. 57.
[14 ] A mortgagor who is suffered to continue in possession by the mortgagee is a tenant at sufferance. 5 B. & A. 604. So a person who has been let into possession under an agreement for a lease, and from whom the landlord has not received rent; for he, having no legal interest, may, after demand, be evicted by the landlord, (2 Taunt. 148;) though it would be otherwise if rent were received, which would afford evidence of a tenancy from year to year. 13 East, 19. So, if a purchaser be let into possession before conveyance of the legal interest, he is a mere tenant at sufferance, and may be evicted after demand of the possession. 3 Camp. 8. 13 East, 210. 2 M. & S. 8.
Lord Coke tells us (in 2d Instit. 134) this diversity is to be observed, that where a man cometh to a particular estate by the act of the party, there, if he hold over, he is a tenant at sufferance; but where he cometh to the particular estate by act of law, as a guardian, for instance, there, if he hold over, he is no tenant at sufferance, but an abator. The same doctrine is laid down in 1 Inst. 271.
Formerly tenants at sufferance were not liable to pay any rent for the lands, because it was the folly of the owners to suffer them to continue in possession after the determination of their rightful estate. Finch’s case, 2 Leon. 143.—Chitty.
[(x) ] Ibid.
[(y) ] Co. Litt. 57.
[(z) ] 5 Mod. 384.
[15 ] It has been a generally-received notion, that if a tenant for a term, from year to year, at will, or at sufferance, hold over, and do not quit on request, the landlord is put to his action of ejectment, and cannot take possession. But see 7 T. R. 431. 1 Price Rep. 53. 1 Bingh. Rep. 158. 6 Taunt. 202-7; from which it appears that if the landlord can get possession without committing a breach of the peace, he may do so; and, indeed, if he were to occasion a breach of the peace, and be liable to be indicted for a forcible entry, still, he would have a defence to any action at the suit of the party wrongfully holding over, because the plea of liberum tenementum, or other title, in the lessor, would necessarily be pleaded in bar. Therefore a person who wrongfully holds over cannot distrein the cattle of the landlord put on the premises, (7 T. R. 471,) or sue him in trespass for his entry. 1 Bingh. Rep. 158.—Chitty.
[16 ] A more summary proceeding still is given by statute 1 & 2 Vict. c. 74, where possession is unlawfully held over after the determination of the tenancy, where there is no rent or where the rent does not exceed 20l. a year. In such cases the landlord may give the tenant or occupier notice of his intention to proceed to recover possession under the authority of the act; and if the tenant does not appear, or fails to show cause why he does not give possession, two justices of the peace, acting for the district, may issue a warrant under their hands and seals, directing the constables to give the landlord possession. And now, by statute 9 & 10 Vict. c. 94, s. 122, so soon as the term and interest of the tenant of any house or land where the value of the premises or the rent did not exceed 50l. per annum, and on which no fine had been paid, shall have ended, or be duly determined by a legal notice to quit, and the tenant shall refuse to quit, the landlord may enter a plaint in the county court and obtain possession through a bailiff of the county, who may be empowered to enter on the premises, with such assistants as he shall deem necessary, and give possession accordingly.—Stewart.