3 & 4 Will. 4, c. 27, s. 7. Relation between trustee and cestui que trust. a yearly rent. An indenture of mortgage, after the usual power of sale by public auction or private contract, in the event of the nonpayment of the mortgage money, contained a proviso and covenant by the mortgagee that no sale, or public notice or advertisement for any sale, should be made or given, nor any means be taken for obtaining possession until the expiration of twelve calendar months after notice in writing of such intention should have been given to the mortgagor. There was likewise a covenant by the mortgagee for quiet enjoyment by the mortgagor as tenant at will to the mortgagee on payment of a certain yearly rent by two equal half-yearly payments, but no livery of seisin was made to the mortgagor: it was held, that the mortgagor was tenant at will only to the mortgagee, and that those clauses in the deed did not create in him a tenancy from year to year. (Doe d. Dixie v. Davies, 7 Exch. 89; 16 Jur. 44; 21 Law J., Exch. 60; Doe d. Basto v. Cox, 11 Q. B. 122; 17 Law J., Q. B. 3; Walker v. Giles, 6 C. B. 662. See the Metropolitan Counties Assurance Company v. Brown, 4 H. & N. 428.) Where a mortgagee recognizes a tenant as being in lawful possession of the premises at a given time by the receipt of rent, it is not competent to him to say afterwards that at that time he was a trespasser. (Doe d. Whitaker, v. Hales, 7 Bing. 322.) But in ejectment by a mortgagee, the mere fact of his having received interest on the mortgage down to a time later than the day of the demise in the declaration does not amount to a recognition by him that the mortgagor or his tenant was in lawful possession of the premises till the time when such interest was paid, and consequently is no defence to the ejectment. (Doe d. Rogers v. Cadwallader, 2 Barn. & Ad. 473.) A cestui que trust is not to be deemed a tenant at will within this section to his trustee. The general rule is, that a cestui que trust being in possession of the estate, with the consent, or even the mere acquiescence, of the trustee, is considered as his tenant at will. (4 Bac. Abr. 198; Smith v. Pierce, 3 Mod. 195; Focus v. Salisbury, Hardr. 400; Freeman v. Barnes, 1 Ventr. 55, 80; 1 Lev. 270; Pomfret v. Windsor, 2 Ves. sen. 472, 481; Ventr. 329; Gree v. Rolle, 1 Ld. Raym. 716.) The doctrine that the legal estate cannot be set up at law by a trustee against his cestui que trust has been long repudiated. (Doe d. Shewen v. Wroot, 5 Fast, 138. See Lessee of Massey v. Touchstone, 1 Sch. & Lef. 67, n.) It is a rule, that however plain the trust may be, yet in a court of law the legal interest must prevail; (Doe d. Da Costa v. Wharton, 8 T. R. 2;) therefore trustees of a meetinghouse or of lands, of which they are seised in trust for the support of the minister, may maintain an action of ejectment against him upon a simple demand of possession without any notice to quit. (Doe d. Jones v. Jones, 10 B. & C. 718; 5 M. & R. 616; Doe d. Nicholl v. M'Keag, 10 B. & C. 724; 5 M. & R. 620.) But the trustee and visiters of a free grammar school cannot recover the schoolhouse in ejectment without having previously determined his interest by summons. (Doe d. Thanet v. Gartham, 8 Moore, 368; 1 Bing. 357. See Rex v. Gaskin, 8 T. R. 209; Reg. v. Governors of Darlington School, 6 Q. B. 682.) The relation between trustee and cestui que trust is not analogous to that between mortgagor and mortgagee, as equity never takes away the possession of the cestui que trust by delivering it to the trustees, unless there be gross mismanagement, or some other reason for it. (9 Mod. by Leech, p. 227.) No person after a but from the end last payment of rent. Tenancy from Year to Year. 8. When 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 or 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 c. 27, s. 8. years or other periods, or at the last time when any rent pay- 3 & 4 Will. 4, able in respect of such tenancy shall have been received (which shall last happen) (u). 8th section. () The 8th section applies to tenancies from year to year, created before Cases on the and existing at the passing of the act, 24th July, 1833. By a settlement, application of the made on the marriage of Gilbert Fownes and Ann his intended wife, in the year 1778, and a recovery duly suffered in pursuance thereof, the premises in question were limited and settled (after the marriage) to such uses as the said Ann should by deed appoint. The marriage took effect, and by a' deed made on the 27th of March, 1790, Ann Fownes appointed the property to the use of John Finch and Joseph Jukes, and their heirs, upon trust, after her decease, to sell the same and apply the purchase-money in such manner and for such purposes as she should by her will direct and appoint; and in default of appointment, she directed that it should form part of the remainder of her personal estate. Ann Fownes survived her husband, and by her will, dated 6th of October, 1808, disposed of her real and personal estate generally, but made no appointment as to the property in question, or the purchase-money to arise from the sale of it; and she appointed Peter Kempson and two other persons her executors, and died in 1811. Kempson survived his co-executors, and in the year 1814 let the defendant's father into possession as tenant from year to year, without any lease or other writing of the premises in question, which (the deed of 1790 having been overlooked) were supposed to have passed under the general devise of real estate in the will. He continued in possession and paid rent to Kempson until the 25th of March, 1824, since which time no demand or payment of rent appeared to have been made, Kempson having died in the month of May in the same year. The defendant's father died a few years ago, leaving the defendant in possession of the premises. Rent was demanded of him by the parties beneficially interested under the deed of 1790, and payment being refused, this ejectment was brought in the name of the heir-at-law of Joseph Jukes, who was the survivor of the trustees named in the deed of 1790. It was objected for the defendant, that the right of action was barred by this section of the act: and the Lord Chief Baron, being of that opinion, nonsuited the plaintiff. Upon motion by the plaintiff to enter a verdict, Parke, B., thought no rule ought to be granted, the case being clearly within the words of the 8th section, which are not the same as those of the 7th section, upon which Doe v. Page (ante, p. 177) was decided. Here the defendant's father was in possession of the land as tenant from year to year after the passing of the act, therefore the period of limitation is twenty years from the last receipt of rent from him, in April, 1824; it expired, therefore, in April, 1844, and this ejectment was consequently brought too late. The effect of the act is to make a parliamentary conveyance of the land to the person in possession after that period of twenty years has elapsed. (Doe d. Jukes v. Sumner, 14 Mees. & W. 39.) The lessor of the plaintiff in ejectment proved a conveyance of the land to himself fifty years before the action was brought: he had not occupied; but a person who had occupied proved payment of rent by himself to the lessor of the plaintiff within thirty-three years of the action brought, at which time H. came into occupation. No lease to H. was shown. It was proved that, within twenty years before the action was brought, H., being in possession, declared that he was then paying rent to the lessor of the plaintiff; and that afterwards, and before action brought, the defendant had said that he was tenant to H. H. died before the trial. It was held, that the plaintiff was not barred by the second section of this act, payment of rent being duly proved by H.'s admission, so as to satisfy sect. 8, and the defendant being bound by the evidence which was good as against H.; and that sect. 14, which requires acknowledgments of title to be in writing, was inapplicable to this case. (Doe d. Earl Spencer v. Beckett, 4 Q. B. 601.) This section requires an instrument in writing which may operate as a lease, and a party holding property for twenty years without such a lease or payment of any rent acquires a title. In 1824, B. was let into possession of a cottage under an agreement purporting to be a demise by the churchwardens and overseers of the poor of the parish of P., at the rent of 1s. 6d. 3 & 4 Will. 4, c. 27, s. 8. Creation of tenancy from year to year. per week; B. to quit on one month's notice being given, &c. This agreement was signed only by one of the overseers. The churchwardens did not sign, nor was there any evidence to show that they had assented to the agreement. B. never paid any rent or made any acknowledgment. B. afterwards sold the premises to the defendant: it was held, in an action of ejectment brought after twenty years by the churchwardens and overseers for the time being against the defendant, that, as the agreement did not pass an interest, it did not amount to a lease in writing, within the meaning of this section, and that consequently the claim of the lessor of the plaintiff was barred by twenty years' adverse possession. (Doe d. Lansdell v. Gower, 16 Jur. 100; 21 Law J., Q. B. 57; 17 Q. B. 589.) Where the tenancy is disputed, the circumstances connected with the annual payments are very important, for if the person paying makes the payment expressly or impliedly on account of something else than rent of land of which he is tenant, that would not be a payment of rent within this section. (Attorney-General v. Stephens, 6 De G., M. & G. 146.) An estate from year to year may be created either by the parol or written agreement of the parties. The qualities that distinguish it from proper terms of years, and from estates at will, are, that it is now raised by construction of law alone instead of an estate at will, in every instance where a possession is taken with the consent of the legal owner, and where an annual rent has been paid, but without there having been any conveyance or agreement conferring a legal interest, and that whether it arises from express agreement, or by implication of law, it may, unless surrendered or determined by a regular notice to quit, subsist for an indefinite period, if the estate of the lessor will allow of it, or for the whole term of his estate, where it is of a limited duration, unaffected by the death either of the lessor or lessee, or by a conveyance of their estate by either of them. (Birch v. Wright, 1 T. R. 380.) Although primâ facie all leases for uncertain terms create a tenancy at will, the courts of law have for some time past inclined to construe such leases to constitute a tenancy from year to year, especially where an annual rent is reserved; (3 Burr. R. 1609; Roe v. Lees, 2 Bl. R. 1171; Doe v. Weller, 7 T. R. 478. See Pope v. Garland, 4 Y. & Coll. 399; Doe v. Watts, 7 T. R. 83; Doe v. Morse, 1 B. & Ad. 365;) which is certain, or which, from the terms of the agreement, is capable of being ascertained with certainty. (Daniel v. Gracie, 6 Q. B. 145.) The defendant, being tenant from year to year at a given rent, the rent was raised, at the termination of one of the years, by consent of the landlord and tenant. It was held, that, if this created a new contract, it must be a contract to hold on the old terms; and that a contract for a tenancy for two years certain from the time of raising the rent could not be inferred (in default of additional evidence), even on the assumption that an original contract for a tenancy from year to year creates a tenancy for two years certain. (Doe d. Monck v. Geekie, 5 Q. B. 841.) A tenancy from year to year, so long as both parties please, is determinable at the end of the first as well as of any subsequent year, unless, in creating such tenancy, the parties use words showing that they contemplate a tenancy for two years at least. Therefore, where a tenant, at the expiration of a term of years, held over, and the landlord received rent from him, it was held, that the landlord might, by a half year's notice, require him to quit at the end of the first year after the term of years had expired. (Doe d. Clarke v. Smaridge, 7 Q. B. 957.) Payment of rent is prima facie evidence of a tenancy from year to year; (Doe d. Pritchard v. Dodd, 2 Nev. & P. 838; 5 B. & Ad. 689;) if made with reference to a year or some aliquot part of a year. (Braythwayte v. Hitchcock, 10 Mees. & W. 497; Doe d. Hull v. Wood, 14 Mees. & W. 687.) Although a tenancy from year to year is ordinarily implied from the mere receipt of rent, (Bishop v. Howard, 2 B. & C. 100,) it is competent to either the payer or receiver to prove the circumstances under which the payments as for rent were so made, and by such circumstances to repel the legal implication which would result from the payment of rent unexplained. (Doe d. Lord v. Crago, 6 C. B. 90.) A demise "not for one year only but from year to year" operates as a demise for two years, and consequently the tenant cannot be ejected after a notice to quit at the expiration of the first year. (Denn v. Cartwright, 4 East, 31.) A lease for one year and so on from year 3 & 4 Will. 4, to year, until the tenancy hereby created shall be determined as hereafter c. 27, s. 8. mentioned, with a provision that it should be lawful for either of the parties to determine the tenancy by three months' notice, creates a tenancy for two years certain, and cannot be terminated by a three months' notice to quit at the end of the first year. (Doe d. Chadborn v. Green, 1 Perry & Dav. 454; 9 Ad. & Ell. 658. See Buckworth v. Simpson, 1 Cr. M. & R. 834; 5 Tyr. 344.) A tenancy from year to year will not arise by implication where it will work a forfeiture. (Fenny v. Child, 2 Maule & S. 255.) A tenant who holds on after a term has elapsed goes on as tenant from year to year, because in the silence of the parties no other terms can be implied. (Doe d. Rogers v. Pullen, 2 Bing. N. C. 753.) A tenant for life under a settlement made a lease for lives not warranted by his leasing power, and after his death and that of the last cestui que vie, the remainderman continued to receive of the lessee rent of the same amount as that reserved by the lease, which was far below the real value of the lands. There was evidence from which it might be inferred that the lease in question had been since the death of the last cestui que trust treated by both parties under a mistake, as a renewal in pursuance of a supposed covenant for perpetual renewal in a former lease. It was held, in an ejectment on the title brought by the remainderman, that the lessee was a tenant from year to year since the death of the last cestui que vie, and was entitled to a notice to quit. (Bell v. Nangle, 2 Jebb & Symes, 259. See Doe d. Martin v. Watts, 7 T. R. 83; Howard v. Sherwood, 1 Alcock & Nap. 217.) An undertenant who is in possession at the determination of the original lease, and is permitted by the reversioner to hold over, is a quasi tenant at sufferance, and the mere fact of occupation, coupled with payment of rent for such time of occupation, does not raise the presumption of a demise for years, unless there is some evidence to show an agreement for a demise for a term. (Simpkin v. Ashurst, 4 Tyrw. 781; S. C., 1 Cr., Mees. & Rosc. 261.) So long as the occupation is merely continued with the bare acquiescence, or without the disagreement of the person entitled to the possession, a tenancy at sufferance exists. (Sykes d. Murgatroyd v. Birkett, cited 1 T. R. 161; Co. Litt. 270 b; Cro. Jac. 169.) Where a party enters into possession of a farm, and pays rent under an agreement for a lease containing divers covenants applicable to a tenancy from year to year: it was held, that where the agreement stipulated for the lease to contain a condition of re-entry, if the tenant should grow two successive crops of white corn without fallowing, that he might be ejected without notice if he committed a breach of the covenant. (Doe d. Thompson v. Amey, 4 P. & Dav. 177. See Lord Bolton v. Tomlin, 1 Nev. & P. 247; 5 Ad. & Ell. 856.) A tenancy from year to year was considered as recommencing every year in the case of Tomkins v. Lawrence, 8 Carr. & P. 729, but in Doe d. Hull v. Wood, 14 M. & W. 682, Parke, B., said, "Though some doubts may once have existed as to whether, in the case of a tenancy from year to year, there was a fresh tenancy at the end of each year, it is now clear beyond all doubt that the same tenancy continues till the one or the other of the parties determines it at his pleasure." And the same principle must apply to any shorter tenancy, as from week to week. (Per Crompton, J., Reg. v. Thornton (Township), 6 Jur., N. S. 799; 29 L. J., M. C. 162, 164) The nonpayment of rent for sixteen years, and no proof of any demand being made, is of itself sufficient evidence to presume the determination of a tenancy from year to year. (Stagg v. Wyatt, 2 Jur. 892.) Though a parol agreement for a longer term than three years is void by the Statute of Frauds, 29 Car. 2, c. 3, s. 1, as to the duration of the term, yet it creates a tenancy from year to year, regulated in every other respect by the agreement. (Doe v. Bell, 5 T. R. 471; Clayton v. Blakey, 8 T. R. 3. See Goodtitle d. Galloway v. Herbert, 4 T. R. 680.) By stat. 8 & 9 Vict. c. 106, s. 3, a lease required by law to be in writing of any tenements or hereditaments "shall be void at law unless made by deed." An agreement to let for three years and a week is void as a lease by that section, but the tenant, notwithstanding, holds from year to year, subject to the terms of the agreement, and is bound to quit at the expiration 3 & 4 Will. 4, c. 27, s. 8. Notice to quit. of the three years, without a previous notice to quit. (Tress v. Savage, 4 Ell. & Bl. 36; 18 Jur. 680; 23 Law J., Q. B. 339. See 8 & 9 Vict. c. 106, s. 3, post.) The interest of a tenant from year to year does not determine by his death, but devolves to his personal representatives. (Doe v. Porter, 3 T. R. 13; 15 Ves. 241.) A tenancy from year to year may be determined by a notice to quit from either party, which, when there is no agreement, or where the agreement is silent on that point, must be at least half a year's (and not merely six months') notice, requiring from the tenant, or offering on his part, to give up possession at the expiration of the year, computing from the time when the tenancy commenced. (Right v. Darby, 1 T. R. 159.) A notice to quit a house held by the plaintiff as tenant from year to year was given to him on the 17th June, 1840, which required him to quit the premises "on the 11th October now next ensuing, or such other day and time as his said tenancy might expire on." The tenancy had commenced on the 11th October in a former year. It was held, that this was not a good notice for the year ending on the 11th October, 1841. (Mills v. Goff, 14 Mees. & W. 72.) Land was let for one year, and so on from year to year, until the tenancy should be determined as after mentioned, with a subsequent proviso that three months should be sufficient notice to be given from either party, and another subsequent proviso that it should be lawful for either party to determine the tenancy by giving three months' notice. It was held, that the tenancy was not determinable by three months' notice expiring before the end of the second year. (Doe d. Chadborn v. Green, 9 Ad. & Ell. 658; 1 P. & Dav. 454; see Birch v. Wright, 1 T. R. 378; Denn d. Jenkin v. Cartwright, 2 Campb. 572; Thompson v. Maberley, 4 East, 29.) On a demise for one year and six months certain from August 13th, at a rent payable on the usual quarter days, three calendar months' notice to be given on either side before determination of the said tenancy. The tenant continued to occupy beyond the year and six months. It was held, that a three months' notice to quit, expiring on 13th August, was proper; and not a notice expiring at the end of a year from the termination of the year and six months. (Doe d. Robinson v. Dobell, 1 Q. B. 806.) A tenant from year to year, believing that his tenancy determined at Midsummer, gave a written notice to quit at that period, which the landlord accepted; the tenant having afterwards discovered that his tenancy expired at Christmas gave his landlord another notice accordingly, and on possession being demanded at Midsummer refused to quit the premises. It was held, that the tenancy was not determined by notice, inasmuch as it was not good as a notice to quit, and could not operate as a surrender by note in writing, within the Statute of Frauds, being to take effect in futuro. (Doe d. Murrell v. Milward, 3 Mees. & W. 328; see Johnstone v. Hudlestone, 4 B. & C. 922; Weddall v. Capes, 1 Mees. & W. 50.) A tenant from year to year gave his landlord notice to quit, ending at a time within half a year. The landlord at first acquiesced, but ultimately refused to accept the notice. The tenant quitted according to his notice, and the landlord entered, and did some repairs. It was held, that the tenancy was not determined. (Bessell v. Landsberg, 7 Q. B. 638.) A notice to quit must be such that the tenant may safely act on it at the time of receiving it; therefore a notice by an unauthorized agent cannot be made good by an adoption of it by the principal after the proper time for giving it. Notice to quit at the end of the current year of tenancy, "on failure whereof I shall require you to pay me double former rent or value for so long as you detain possession," is an unqualified notice, and does not give the tenant an option. (Doe d. Lyster v. Goldwin, 2 Q. B. 143.) Land and buildings were held by a yearly tenant, the land from 2nd February to 2nd February, the buildings from 1st May to 1st May. The landlord, on the 22nd October, 1833, served him with a notice to quit the lands and buildings, " at the expiration of half a year from the delivery of this notice, or at such other time or times as your present year's holding of or in the said premises, or any part or parts thereof respectively, shall expire after the expiration of half a year from the delivery of this notice." It was held, |