CH. VIII. PART V. have accrued at the expiration of one year next after the commencement of the tenancy; and the exception seems to be introduced in order to prevent the necessity of any active steps being taken by a trustee to preserve his estate from being destroyed, as in the case of an ordinary tenancy at will, by mere lapse of time. The intention appears to be to put the estate of a trustee in a better state in this respect than that in which the estate of an ordinary lessor is as against his tenant at will” (1). Although a cestui que trust who is in possession with the consent of his trustees may in general be regarded as his tenant at will, yet this doctrine only applies to the case where the cestui que trust is the actual occupant. If he is only allowed to receive the rents or otherwise deal with the estate in the hands of the occupying tenants, he stands in the relation merely of an agent or bailiff of the trustees who choose to allow him to act for them in the management of the estate. And the consequence is that, if the actual occupier is under such circumstances permitted to occupy for more than twenty years without paying rent, the trustees will lose their title (2). The proviso to the 7th section has been decided to apply only to express trusts (3), or rather to actual direct trusts, and not to implied trusts or to such possible eventual trusts as may, in case certain facts are established in evidence, be declared in a Court of Equity (4). The distinction rests on a broad principle that when the trustee and the cestui que trust have but one interest, namely, that of the cestui que trust, the possession of the cestui que trust is consistent with the title of the trustee, and will not operate to bar the trustee's title; but where, on the other hand, the interest of the person who has the (1) Garrard v. Tuck, 8 C. B. 231, 253. (2) Melling v. Leak, 16 C. B. 652, 669. (3) Doe d. Stanway v. Rock, 4 M. & G. 30; Car. & M. 549. (4) Drummond v. Sant, L. R. 6 Q. B. 763; 41 L. J. Q. B. 21; Sands to Thompson, 22 Ch. D. 614; Locking v. Parker, L. R. 8 Ch. CH. VIII. legal estate, and that of the person beneficially entitled, PART V. are opposed to one another, the possession of the latter, who is the owner in equity, is such as ought on the general principle of the statute to bar the title of the former at law. A person might be tenant at will at law, but yet have Tenant at a right to a lease in equity; in such a case the right of the landlord would not be barred in equity (1). (1) See post, Part V. Ch. IX. p. 364. will having CH. IX. CHAPTER IX. TENANCIES FROM YEAR TO YEAR (3 & 4 WM. IV. c. 27, s. 8). PART V. THE operation of the statutes 3 & 4 Wm. IV. c. 27, and 37 & 38 Vict. c. 57, on tenancies from year to year, is regulated by the 8th section of the former Act, which is as follows: Section 8 of 3 & 4 Wm. IV. c. 27. "Where any person shall be in possession or in receipt of the profits of any land or in receipt of any rent, as tenant from year to year, or other period, without any lease in writing, the right of the person entitled subject thereto, or of the person through whom he claims to make an entry or distress, or to bring an action to recover such land or rent, shall be deemed to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent payable in respect of such tenancy shall have been received (which shall last happen)." In this section the word rent occurs in two different senses, being used twice in the beginning of the section to mean a rent-charge or inheritance in rent, as in the 3rd section, and once in the latter part to signify the reserved rent payable in respect of a tenancy (1). Where land is held on the condition of performing any service for which a distress may be made, such service is a rent payable in respect of the tenancy within the meaning of this section (2). (1) Baines v. Lumley, 16 W. R. 674. (2) Doe d. Edney v. Benham, 7 Q. B. 976. See Doe d. Robinson v. Hinde, 2 Moo. & Rob. 441. It is clear that the words of the section "without a lease in writing" apply to a person holding as tenant from year to year as well as to a person holding for any other period, and the section includes all cases of tenancies for recurring periods, which are not commenced under a lease in writing. The wording of this section is so similar to that of the 7th that on more than one point the cases decided on the 7th section may be considered applicable to the 8th. In Doe v. Sumner (1) the question arose how far the 8th section was retrospective, and it was contended that the section did not apply to tenancies from year to year which had commenced before the passing of the Act. The case of Doe v. Page (2), decided on the 7th section, was relied on as an authority, but does not support this view. In Doe v. Sumner (1) the defendant's father had been admitted tenant from year to year in 1814, and the last payment of rent was made in March, 1824. The defendant's father died a few years before the commencement of the action, leaving the defendant in possession of the premises. The demise in ejectment was laid on the 30th June, 1844. It was held that, as the defendant's father was in possession of the land as tenant from year to year after the passing of the Act, the period of limitation ran from the last receipt of rent from him in March, 1824, and therefore expired in March, 1844, and that the ejectment was consequently brought too late. PART V. CH. IX. from year in writing. If a tenancy from year to year or any other tenancy Tenancy for recurring periods is created under a lease in writing, to year the provisions of the 8th section do not apply, and the under lease case must be considered under the clauses of the Act generally applicable to leases and reversions. Before the passing of the Act, if a person had once been admitted as tenant from year to year, no right of entry accrued till the tenancy had been determined by a notice (2) 5 Q. B. 767. (1) 14 M. & W. 39. CH. IX. PART V. to quit or otherwise; and consequently a tenant might remain in possession for an indefinite period without paying rent, and yet gain no title against the person who let him into possession. This would still seem to be the case, where the tenant has entered under a lease in writing. The non-payment of rent for many years, coupled with absence of proof of any rent being demanded, is of itself evidence from which a jury may, if they please, presume the determination of a tenancy from year to year (1). If a person who had entered into possession of land as tenant from year to year under a lease in writing were to rest his title on the statute, it would be necessary for him to show that the tenancy had determined twelve years or more before action, and the jury might, as in Stagg v. Wyatt (1), presume that such was the case from the fact that a considerable number of years had elapsed without any rent having been paid or demanded. The question for the jury to decide would be whether the length of time which had elapsed without payment or demand of rent satisfied them that the tenancy had been determined twelve years or more before action. In the case of Jackson v. McMaster (2), which was recently decided by the Court of Appeal in Ireland, A. B. was in possession of lands as tenant from year to year, and died intestate some time before 1866; no administrator of A. B. was ever appointed, but his widow and one of the children remained in possession, and one of the sons, H. B., was accepted as tenant by the landlord, and receipts were given to him in his own name for the rent. It was held that at the expiration of twenty years from the death of A. B. his outstanding tenancy from year to year was extinguished, and that the tenancy of H. B., which up to that time was a tenancy by estoppel, only became then a tenancy in interest. (1) Stagg v. Wyatt, 2 Jur. 892. (2) 28 L. R. Ir. 176. |