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the consent of the tenant to the transfer. The necessity of an attornment is now taken away in England by statute 4 and 5 Anne, ch. 16, which was adopted in this state at an early day. (1 R. L. 525, $ 25. 1 R. S. 739, $ 146.) But the payment of rent to such grantor, by his tenant, before notice of the grant, is binding upon the grantee; and the tenant is not liable to such grantee for any breach of the condition of the demise, until he shall have had notice of the grant. (Id.) This notice is a substitute for the ancient attornment, and should always be given by the grantee of the landlord to the tenant, in order that the latter may know to whom the payment of his rent is due. Although there be no attornment of the tenant in form, or notice in writing of the assignment given, still the assignee of a lease, who has been recognized as such by the tenant, may sue in his own name for the rent, notwithstanding he has no interest in the reversion. The assignee of the rent alone, without the reversion, may recover in his own name. (Allen v. Bryan, 5 Barn. & Cress. 512. Demarest v. Willard, 8 Cowen, 206. Willard v. Tilghman, 2 Hill, 277.) This was on the ground formerly, that after attornment by the tenant, the privity of contract was transferred to the assignee of the rent. Attornment is now unnecessary, but notice is required for certain purposes; and the consent of the tenant to the transfer is conclusively shown by his paying rent to the assignee of the lessors. Such payment dispenses with evidence of notice. (Moffat v. Smith, 4 Comst. 126.)
As a grant only operates on the estate of the grantor, and passes only such interest as he possessed at the time of the delivery of the grant, if the statute was silent on the subject the grant would not be void if the grantor was out of possession at the time. But the statute has interposed and enacted that every grant of lands shall be void if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor. (1 R. S. 739, § 147. Webb v. Bindon, 21 Wend. 98. Poor v. Horton, 15 Barb. 485. Vrooman v. Shepherd, 14 id. 441.)
We have seen in the previous chapter, that the legislature have adopted the grant as the conveyance of the fee, or of a freehold estate. A grant is a deed; and the circumstances essential to its validity have already been detailed. A legal grant effectual to pass a fee simple, or any less estate, may be created by few words. It is usual, however, to add the forms of conveyance to which the public have long been familiar, and to insert such covenants for title as are agreed to by the parties. These covenants are not necessary to pass the title. A conveyance or assurance is good, without a warranty, or personal covenant. (Nixon v. Hyserott, 5 John. 58.)
The statute, it has been seen, permits deeds of bargain and sale, and lease and release still to be used, and declares that they shall be deemed grants. (1 R. S. 739, § 142.) The law does not insist upon any particular form of words to constitute a grant. Of course whatever will constitute a deed of bargain and sale will constitute a grant. A deed merely remising, releasing and forever quitclaiming to the grantee and his heirs and assigns forever, has been held to be a good conveyance by way of bargain and sale before the revised statutes, and is therefore now a good grant under the statute. (Jackson v. Fish, 10 John. 456. Beddoe's Ex'rs v. Wadsworth, 21 Wend. 120.)
But while the law is thus indulgent in carrying out the intention of the parties, it is nevertheless desirable that well considered forms of conveyance should be adopted. Such forms are the parent of security and peace, while those which deviate from established usage invite litigation. In compiling the forms in the Appendix, we have sought rather for such as have received the sanction of time, than to amuse the reader by untried novelties.
The appropriate definition of a lease is, that it is a contract for the possession and profits of lands and tenements on the one side, and a recompense of rent, or other income, on the other. It is a conveyance of lands and tenements to a person for life, for years, or at will, in consideration of a return of rent, or other recompense. It is always for a less time than the lessor has in the premises. If it be for the whole interest of the lessor, it is more properly an assignment, or in the language of our statutes, a grant. (2 Black. Com. 217.)
The proper words for creating a lease are," demise, lease and to farm let.” But any other words which show the intention of the parties are sufficient. And we have seen in the preceding chapter, that the whole instrument must be examined to ascertain the intent. A memorandum for a lease between H. & W. by which H.
agreed to let or lease to W. (the defendant) for the term of four years, from &c. for a certain rent, payable &c., and the said W. agrees to take the said premises on the said terms and conditions, was held to be a lease, and not merely an agreement for a lease. (Hallett v. Wylie, 3 John. 44.)
So where A. by articles of agreement covenanted to let and hire to B. a certain farm for the term of six years, from the 1st of April, 1807, to the 1st of April, 1813, on condition, and in consideration, that B. should pay A, two hundred and fifty dollars on the first day of April in each and every year during the term; this was held to be a lease in presenti, to commence on the 2d April, 1807, which was the evident intention of the parties; for if the term was to be construed to commence on the 1st of April, 1807, the lessee would have to pay seven years' rent instead of six; and in case of B.'s being kept out of possession of the premises, his remedy would be ejectment, under the law then in being, and not an action for a breach of covenant. (Thornton v. Payne, 5 John. 74.)
In the last mentioned case, the preposition "from" excludes the day mentioned, as it did also in Wilcox v. Wood, (9 Wend. 346.) In some cases it includes the day referred to; and in all these cases the intention controls, where it can be gathered from other parts of the instrument. The better way is, in all conveyances, to insert the word inclusive or exclusive, after the mention of the day, according as the parties wish to have it construed. This will often obviate a controversy.
But letting land upon shares is not, technically speaking, a lease; and the parties are merely tenants in common of the crop. (Caswell v. Districh, 15 Wend. 379. Bradish v. Schenck, 8 John. 151.) So a person entering under a contract for a deed, is not a tenant; nor entitled to notice to quit, nor liable to distress, while that remedy remained, or assumpsit for the rent. On the non-performance of his contract he was liable to be turned out as a trespasser, and was, in that character, liable for the mesne profits. (Smith v. Stewart, 6 John. 46.)
An agreement by A. and B., the latter to work for A., on his farm, a year, for so much, and to be supplied with a house, is not a lease, but creates the relation of master and servant. (Haywood v. Miller, 3 Hill, 90.) So a contract for rooms and board made with the keeper of a hotel, or boarding house keeper, does not cre
ate the relation of landlord and tenant. (Wilson v. Martin, 1 Denio, 602.)
A lease to A., his executors, administrators and assigns, forever, was, before the revised statutes, held to be only a lease for life. (Williams v. Woodard, 2 Wend. 487.) If the lessor was, at the time, the owner of the fee, it is believed, that under the provisions of the revised statutes, the word forever would carry the fee, notwithstanding the word heirs was not inserted as a word of limitation, unless, indeed, other parts of the instrument would indicate that only a life estate was intended to be conveyed. (1 R. S. 748, SS 1 and 2.)
Although the proper definition of a lease embraces only such instruments of conveyance as transfer to the lessee a less estate than is possessed by the lessor, thus leaving a reversion in him, yet we have seen, in a preceding chapter, that grants in fee, reserving an annual rent, with clause of distress, create a valid rent charge, notwithstanding there is no reversion in the person entitled to it; and that the covenant to pay such rent runs with the land, as well as the condition of re-entry for its non-payment. (See ante, p. 82 &c. Van Rensselaer v. Hays, 5 Smith, 68–80. 2 Sug. 725, Perkins' ed. top paging 177.) This species of conveyance is most generally called a lease in fee, or durable lease, and is thus often denominated in the adjudged cases and in the statutes. (Jackson v. Allen, 3 Cowen, 220. L. of 1805, ch. 98, p. 254. 1 R. L. 364, § 3. 1 R. S. 748, $ 25.) The law of 1860, ch. 396, onacting that the act of 1805, and its subsequent re-enactments, shall not apply to deeds of conveyance in fee made before the 9th April, 1805, nor to such deeds thereafter to be made, does not impair the common law rule on this subject, nor affect the usage that has prevailed in this state from an early period. Nor does it alter the name by which that species of conveyance is commonly called.
With regard to the form of the instrument demising premises from one person to another, it is usually an indenture, executed under the hand and seal of the respective parties, both parts of which, in such a case, are deemed originals. (Lewis v. Payn, 8 Cowen, 71.) A lease for more than one year, is required by the statute of frauds, to be by deed or conveyance in writing, subscribed by the party creating it. The same principle applies to the creation of estates or interests in land, and to the granting, assigning, surrendering or declaring the same, except by operation of law, or by last will and testament. (2 R. S. 134, $ 6.)
An oral lease for more than one year, though void by the statute of frauds for the whole term, is good for one year if the lessee enters, and creates an estate from year to year thereafter. (The People v. Rickert, 8 Cowen, 226. Schuyler v. Leggett, 2 id. 660.)
With regard to the parties competent to make a lease it may, in general, be said that all persons, natural or artificial, who are capable of being parties to a deed, and of which we have sufficiently treated in preceding chapters, may make and accept a lease. There are also some persons who are not authorized to convey land in fee, without the order or authority of some tribunal, who may nevertheless demise the premises of which they have the control for some limited time, less than a fee. This is the case with religious incorporations under the general laws; with committees of lunatics and habitual drunkards; with guardians, whether testamentary or appointed. But this branch of the subject will be treated in a subsequent chapter. (See post, ch. 7.)
It belongs more properly to a treatise on the law of landlord and tenant, to notice the various questions which may arise under leases. The limits of this work restrict us to a few only of the points which should be particularly regarded.
1. In respect to the covenants which may be, or are usually inserted in leases, we have already, in the preceding chapter, brought to the notice of the reader such of them as are usually inserted in deeds, and discriminated between such as run with the land and such as are in gross, or are obligatory only on the covenantor or his representatives. Some of those covenants are applicable to leases. Without repeating these, but referring the reader to the chapter in which the subject is discussed, we propose now to treat of some of the covenants usually inserted in leases, with the conditions, exceptions and reservations therein contained.
Covenants are of two kinds, express and implied. We defined the difference between them in a preceding chapter, and adverted to the difference in opinion between the late supreme court and the late chancellor, on the question whether the statute which directs that no covenant shall be implied in any conveyance of real estate extended to a conveyance of a chattel interest or not. (See page 411.) Without undertaking to settle this question, it is proper