CHAPTER VIII. TENANCIES AT WILL (3 & 4 WM. IV. c. 27, s. 7). THE 7th section of 3 & 4 Wm. IV. c. 27, relating to tenancies at will, is as follows:— "When any person shall be in possession or in receipt of the profits of any land or in receipt of any rent as tenant at will, the right of the person entitled subject thereto or of the person through whom he claims to make an entry or distress or bring an action to recover such land or rent shall be deemed to have first accrued, either at the determination of such tenancy or at the expiration of one year next after the commencement of such tenancy at which time such tenancy shall be deemed to have determined; provided always that no mortgagor or cestui que trust shall be deemed to be a tenant at will, within the meaning of this clause, to his mortgagee or trustee." PART V. 7th section of 3 & 4 c. 27. will is tive of Act. Before the Act 3 & 4 Wm. IV. c. 27, as there could be How no right of entry till the determination of a tenancy at tenancy at will, it followed that time could not begin to run till determined such determination, however long the tenancy might irrespeccontinue; and as, if an occupation once commenced as a tenancy at will, it remained such till it was determined, the consequence was that a person might in fact be in possession for a very long period without paying any rent or making any acknowledgment of title and yet be liable to be ousted by the lessor; and an acknowledgment by pecuniary payment or otherwise, after an occupation of any length of time, was evidence that the CH. VIII. PART V. occupation was permissive from the beginning (1). The 2nd section of 3 & 4 Wm. IV. c. 27 (now the 1st section. of 37 & 38 Vict. c. 57) would alone have made no difference in this, for the lessor at will, although he has a right to determine the tenancy at any moment, can have no right of entry within the meaning of the 2nd section of 3 & 4 Wm. IV. c. 27 (or the 1st section of 37 & 38 Vict. c. 57) until he is in a position to bring an action of ejectment (2), which will not be till lawful possession under the tenancy is determined by a demand of possession or otherwise (3). The lessor may determine a tenancy at will, not only by an actual demand of possession, but by words expressing an intention to determine it, even if spoken off the premises, provided the tenant has notice (4), or by any act on the premises which would otherwise be a trespass, and that whether any intention on the lessor's part to determine the tenancy is or is not shown (5), or by an entry for the purpose of taking possession, and that even if the tenant is absent (6). A tenancy at will is also determined by the death of either party (7), or by either party alienating his interest, provided and as soon as such alienation comes to the knowledge of the other (8). However, the Judicial Committee of the Privy Council, in circumstances from which it would seem clear that the tenant (1) Doe d. Jackson v. Wilkinson, 3 B. & C. 413; Doe d. Thompson v. Clark, 8 B. & C. 717. (2) See Garrard v. Tuck, per Wilde, C.J., 8 C. B. 251. (3) Goodtitle d. Gallaway v. Herbert, 4 T. R. 680; Right d. Lewis v. Beard, 13 East, 210. (4) Co. Litt. 55b. (5) Doe d. Bennett v. Turner, 7 M. & W. 226; and Turner v. Doe d. Bennett, 9 M. & W. 643. (6) Co. Litt. 55b; Doe d. Moore v. Lawder, 1 Stark. 308. (7) Co. Litt. 55b; Doe d. Stanway v. Rock, 4 M. & G. 30; Hogan v. Hand, 14 Moore P. C. C. 310. (8) Disdale v. Iles, 2 Lev. 88; S. C. sub. nom. Hinchman v. Пles, 1 Ventr. 247; Doe d. Dixie v. Davies, 7 Exch. 89; Doe d. Davies v. Thomas, 6 Exch. 854; Pinhorn v. Souster, 8 Exch. 763; and see per Creswell, J., Melling v. Leak, 16 C. B. 669; and Cole on Ejectment, CH. VIII. at will must have known of a grant by the lessor at will PART V. of a lease for years to a third party, held that the effect of such lease was not to determine the tenancy at will, but only to give to the lessee for years a right to determine such tenancy. The point was not much discussed in the judgment, nor was the fact that the tenant at will must have known of the lease commented on; but it would seem, as the facts are reported, to be a decision that a demise to a third party by a lessor at will does not, even if communicated to the tenant at will, of itself determine the tenancy at will, and this is certainly inconsistent with the cases before alluded to (1). by occupier permissive. There are expressions used in the judgments delivered Admissions in one case (2), which seem to imply that any acts on that occuthe part of an occupier amounting to admissions that he pation is is only holding as tenant at will to the rightful owner, will prevent the statute from running against such owner's title. This, however, appears not to be correct, and in the case referred to, the facts would have warranted the judgment on another ground, namely, that during the twenty years preceding the action the owner had himself been from time to time in possession. Putting aside the effect of acknowledgments in writing under the 14th section of 3 & 4 Wm. IV. c. 27, or by a pecuniary payment which, as will be seen (3), stand on a peculiar footing, the difference between the operation before and since the statute of an admission by an occupier that his occupation was permissive, appears to be this. Before the statute such an admission was evidence that the occupation was permissive from the beginning, the effect of which, as showing that there never had been any adverse possession, was to prevent the then Statutes of Limitation from having any operation at all in such a case. Since the statute, such an CH. VIII. Ley v. Peter. Tenancies at will reserving rent. admission is evidence, as before, that the occupation is permissive, but is no evidence to show when the tenancy began, nor does it operate in any way to set the statute running afresh; the effect is simply to bring the case within the 7th section, and to postpone the bar of the statute for one year beyond the time in which it would have taken effect, on the assumption that the occupation was not permissive, but that of a trespasser. If any such admission were allowed to operate as setting the statute running afresh, the provisions of the 14th section as to acknowledgments in writing would be virtually extended to acknowledgments made in any other way. The proposition laid down above seems warranted by the case of Ley v. Peter (1). That case, so far as it is material to this point, may be thus stated. The defendant had been in possession much more than twenty years, but a letter written within twenty years before action by his agent to the plaintiff's agent, offering to accept a lease of the land in question, was put in evidence, and it was contended that, even if this was not an acknowledgment within the 14th section (which it was held not to be), at any rate it was an admission of a tenancy at will, and that the plaintiff was not barred. It was held that, assuming it to be admissible as evidence against the defendant, and assuming it to be evidence of a tenancy at will, as to which there was a difference of opinion, yet it was no evidence as to when such tenancy began. Although the leaning of the Courts always is to construe tenancies for an undefined period, reserving yearly rents, as tenancies from year to year, yet such tenancies will, notwithstanding the reservation of such rent, be held to be strictly tenancies at will, where it is clear that such was the intention of the parties (2). If in the (1) 3 H. & N. 101; 27 L. J. Exch. 239. (2) Doe d. Bastow v. Cox, 11 Q. B. 122; and see Richardson v. Langridge, 4 Taunt. 128. case of such a tenancy no rent has ever actually been paid up to the time when the question arises, such a tenancy would, it is submitted, be held to be within the provisions of this section; but, if rent has been paid, a difficulty arises. If such a case were held to be under this section without qualification, the result would be that, although the rent were regularly paid, the landlord's title would be barred at the expiration of thirteen years from the commencement of the tenancy, a result which never could have been intended; but, on the other hand, if it were held that the section did not apply at all to tenancies at will when rent is paid, a result would follow equally foreign to the spirit of the Act, namely, that if rent were paid for a short time, and then discontinued, the case would be left to the operation of the 1st section of 37 & 38 Vict. c. 57 alone, and time could not begin to run till the tenancy had actually determined, no matter how long a time elapsed between the last payment of rent and the actual determination of the tenancy. Lord St. Leonards remarks on this point (1): "It seems to be assumed in this section that no rent is paid," but he does not solve the difficulty suggested. It would certainly seem that no case of a tenancy at will where rent is actually paid was contemplated by this section, or else a provision, as in the case of tenancies from year to year, would have been inserted that time should run from the last payment of rent. It is suggested that the most satisfactory solution is this, that all tenancies at will, whether rent be paid or not, are within the 7th section, but subject to the provisions of the 35th section (2), and that a lessee at will is an "other lessee" within the meaning of that section; so that, every time rent is paid, the lessor at will and not the lessee at will is, as between themselves, in the receipt of the profits of the land for the purposes of (1) Prop. Stat., p. 53n. (2) See post, Part V. Ch. XXVI. PART V. CH. WHI |