Davey, 4 B. & Ad. 664; Doe v. Bancks, 4 B. & A. 401; Arnsby v. Wood- 3 & 4 Will. 4, ward, 6 B. & C. 519; Read v. Farr, 6 M. & S. 121; Malins v. Freeman, c. 27, s. 4. 4 Bing. N. C. 395; Doe v. Birch, 1 M. & W. 402; Hyde v. Watts, 12 M. & W. 254; Hughes v. Palmer, 19 C. B. N. S. 393; compare Magdalen Hospital v. Knotts, 4 App. Cas. 324). A distress made by a landlord on the assignee of his lessee is a waiver of a forfeiture incurred by a prior breach of covenant; but if there be a continuing breach the landlord is not precluded from taking advantage of it for a time subsequent to the distress (Doe v. Peck, 1 B. & Ad. 428). A condition of re-entry on breach of covenants in a lease can only operate during the continuance of the lease (Johns v. Whitley, 3 Wils. 127). See now sect. 14 of Conv. Act, 1881, post.

[Sect. 2 of 37 & 38 Vict. c. 57 (which see, post, p. 194) has been substituted for sect. 5 of 3 & 4 Will. 4, c. 27.]

Administrator.

6. For the purposes of this act an administrator claiming the An adminisestate or interest of the deceased person of whose chattels he trator to claim shall be appointed administrator, shall be deemed to claim as if obtained the there had been no interval of time between the death of such estate without

as if he had

death of deceased.

deceased person and the grant of the letters of administration (s). interval after (8) In the case of intestacy, it had been decided that, as to all rights occurring after the death of the intestate, the Statutes of Limitation only Old rule that began to run from the grant of administration. Hence a right to a chattel time ran from interest in lands might have been kept alive, notwithstanding adverse grant of adpossession, to the expiration of the term, however long, and instances had ministration. occurred of serious practical inconvenience from that state of the law (See Stanford's case, Cro. Jac. 61; cited in Cary v. Stephenson, 2 Salk. 421; S. C. Carth. 335; Skinn. 555; 4 Mod. 376; Fairclaim v. Little, cited in 5 B. & Ald. 214). The object of this clause of the act is to make the period of limitation with respect to chattel interests in land begin to run from the time when the right of entry arose and might have been acquired by taking out letters of administration (See 1st Real Prop. Rep. p. 48). It has been held accordingly that time runs against the administrator from the date of the death of the intestate, not from the grant of administration (Davies v. Williams, 34 Ch. D. 558).

The section applies to cases arising in respect of charges on land, as well as to cases arising under the earlier part of the act (Re Bonsor and Smith, 34 Ch. D. 560, n.)

The distinction between an administrator and an executor is, that an Distinction administrator derives his title wholly from the probate court, and has between adnone until the letters of administration are granted, and the property ministrator. of the deceased vests in him only from the time of the grant (Woolley v. and executor. Clark, 5 B. & Ald. 744). The title of an administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate, so that he may recover against a wrongdoer who has seized or converted the goods of the intestate after his death in an action of trespass or trover (Tharpe v. Stallwood, 5 M. & G. 760; Foster v. Bates, 12 M. & W. 233; Welchman v. Sturgis, 13 Q. B. 552). But this doctrine of relation exists only in cases where the act done is for the benefit of the estate (Morgan v. Thomas, 8 Exch. 302). An executor, on the other hand, derives his title from the will itself, and the property vests

3 & 4 Will. 4, c. 27, s. 6.

Nature of administrator's rights.

in him from the moment of the testator's death (Hickman v. Walker, Willes, 27).

Where letters of administration have been granted, the administrator is entitled to all the rights which the intestate had at the time of his death vested in him; although no right of action accrues to the administrator until he has obtained letters of administration (Pratt v. Swaine, 8 B. & C. 287). An executor or administrator is not deemed to be in possession of things immoveable, as leases for years or houses, before entry (Went. Off. Ex. 228, 14th ed.); although a reversion of a term, which the testator granted for part of the term, is in the executor immediately on the testator's death (Trattle v. King, T. Jones, 170). But the relation of the grant of administration to the death of the intestate did not, it seems, divest any right legally vested in another between the death of the intestate and the grant, so as to enable an administrator, who had obtained letters of administration after an execution issued against the intestate's tenant, to call on the sheriff to pay one year's rent, pursuant to the stat. 8 Anne, c. 17 (Waring v. Dewberry, Gilb. Eq. Rep. 223, cited in 1 Str. 97; Fortesc. 360; S. C., Vin. Abr. Executors (Q)). It seems that the grant of administration will have the effect of vesting leasehold property in the administrator by relation, so as to enable him to bring actions in respect of that property for all matters affecting the same subsequent to the death of the intestate, and to render him liable to an account for the rents and profits of it from the death of the intestate (R. v. Horsley, 8 East, 410).

As to the running of time under 21 Jac. 1, c. 16, in the case of executors and administrators, see post, pp. 215, 216.

In the case of a tenant at

will, the right shall be deemed to accrued

at the end of one year.

Tenancy at Will.

7. 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 haved 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 trust shall be deemed to be a tenant at will, within the meaning of this clause, to his mortgagee or trustee (t).

Tenancies at will of waste.

que

(t) This section did not apply to cases where the tenancy at will had been determined before the passing of the act (Doe v. Page, 5 Q. B. 767, see p. 772; Doe v. Thompson, 6 Ad. & Ell. 721; Doe v. Bold, 11 Q. B. 127). But where the tenancy was subsisting at the passing of the act, time ran from the expiration of one year after the expiration of the tenancy (Doe v. Moore, 9 Q. B. 555).

Where a bargainee took possession of land included in an indenture of bargain and sale which was not enrolled, this operated to make the bargainee a tenant at will, and time began to run in his favour from the end of the first year (Low Moor Co. v. Stanley Co., 34 L. T. 186). The occupation for twenty-six years by guardians of public offices belonging to a corporation without payment of rent was held to be a tenancy at will, the guardians acquiring a title under this section (Brighton v. Brighton Guardians, 5 C. P. D. 368).

A tenancy at will of the waste of a manor was held to be created by a licence from the lord (A. G. v. Tomline, 15 Ch. Div. 150, 157), even where

c. 27, s. 7.

Tenancy at will determined after expiration of

a yearly rent was reserved (Hodgson v. Hooper, 29 L. J. Q. B. 222); in 3 & 4 Will. 4, which last case it was said that each successive payment of rent was a fresh acknowledgment that the land was held by permission of the lord. But where a lessee, with the verbal consent of his lessor, enclosed land adjoining his holding (which land was in fact copyhold waste belonging to the lessor as lord of a manor), this did not create such a tenancy as is referred to in sect. 7 (Whitmore v. Humphries, L. R. 7 C. P. 1). Where, after the expiration of one year from the commencement of a tenancy at will, the tenancy has been determined, time runs not from the determination, but from the expiration of the year (Doe v. Carter, 9 Q. B. 863; Doe v. Turner, 7 M. & W. 226). In a case before the Privy Council, it was said that where time has one year. begun to run after the expiration of one year from the commencement of Tenancy at a tenancy at will, the question of a subsequent determination of the will deteroriginal tenancy is only relevant so far as it may be preliminary to the mined; new creation of a fresh tenancy at will after the determination of the first, and tenancy within the period of limitation (Day v. Day, L. R. 3 P. C. 751). In the created. event of such new tenancy being created, time runs from the determination of such new tenancy, or from the expiration of one year after the commencement thereof, without regard to the original tenancy (Locke v. Matthews, 13 C. B. N. S. 753; 11 W. R. 343; Turner v. Doe, 9 M. & W. 643; see Doe v. Rock, 4 M. & Gr. 30; Thorp v. Facey, 35 L. J. C. P. 349). New tenancies were held to have been created in Locke v. Matthews and Turner v. Doe, sup.

Where parish overseers determined a pauper's tenancy at will by Tenancy at turning him out, and he subsequently resumed possession, no new will detertenancy at will being created, time ran against the overseers from the mined, and pauper's subsequent resumption of possession without any regard to the resumption of original tenancy (Randal v. Stevens, 2 E. & B. 641). And where A., the possession by true owner of a garden, which by his permission was occupied by B., from landlord. time to time came on the land and gave directions as to cutting trees, it was said that every time A. came on the land, time commenced afresh to run against him (Allen v. England, 3 F. & F. 49).

An estate at will, being the lowest estate which can arise by the agree- Creation of ment of the parties, is not bounded by definite limits with respect to time; tenancy at but as it originated in mutual agreement, so it depends upon the concur- will. rence of both parties (See Litt. ss. 68, 82). As it depends upon the will of both, although it is expressed to be at the will of one only (Co. Litt. 55 a), the dissent of either may determine it. An estate at will may arise by implication, as well as by express words. The definition of an estate at will is, "where lands and tenements are let by one man to another, to have and hold at the will of the lessor, and the tenant by force of this lease obtains possession" (Litt. s. 68; 2 Bl. Com. 145). Thus, where a person makes a feoffment, and delivers the deed to the feoffee, without giving him livery of seisin, and the feoffee enters, he becomes tenant at will (Litt. s. 70). And a person who entered and enjoyed lands under a void lease, and paid rent, was held to be tenant at will (Denn v. Fearnside, 1 Wils. 176). A simple permission to occupy may create a tenancy at will unless an intention appears to create a yearly tenancy by an agreement to pay rent quarterly, or some other aliquot part of a year. Under an agreement to let premises so long as both parties like, and receiving a compensation accruing de die in diem, and not referable to a year or any aliquot part of a year, a tenancy at will, strictly so called, is created (Richardson v. Langridge, 4 Taunt. 128; Doe v. Wood, 14 M. & W. 687; see Braythwayte v. Hitchcock, 10 M. & W. 497; Cox v. Bent, 5 Bing. 185). A tenancy from year to year will not be presumed against the clearly expressed intention of the parties. By a proviso in a deed, A. agreed to become tenant to C. at his will and pleasure, at the rate of 25l. 48. per annum, payable quarterly; it was held that A. was tenant at will (Doe v. Cox, 11 Q. B. 122). A party in possession as apparent owner was, under the circumstances of the case, held to be tenant at will, his conduct amounting to an admission to this effect (Doe v. Groves, 10 Q. B. 486),

8 & 4 Will. 4, c. 27, s. 7.

Determina

tion of te

In Ley v. Peter (3 H. & N. 101; 6 W. R. 437), a letter was held to be no evidence of such a tenancy.

An entry by a person under a contract for the purchase of an estate, or an agreement for a lease with the consent of the vendor, or of the person agreeing to grant the lease, will create a tenancy at will between the parties (Hegan v. Johnson, 2 Taunt. 147; Dunk v. Hunter, 5 B. & Ald. 322; Doe v. Lawder, 1 Stark. 308; Right v. Beard, 13 East, 210; Doe v. Jackson, 1 B. & C. 448; Doe v. Sayer, 3 Camp. 8; Doe v. Stanion, 1 M. & W. 700; Ball v. Cullimore, 2 C. M. & R. 120), even where he pays interest after the rate of 5l. per cent. per annum on the purchase-money (Doe v. Chamberlaine, 5 M. & W. 14; see Saunders v. Musgrove, 8 B. & C. 524). But where the purchaser is already in possession as tenant from year to year, it must depend upon the intention of the parties, to be collected from the agreement, whether a new tenancy at will is created or not, and from what time (Doe v. Stanion, 1 M. & W. 695; see Souter v. Drake, 5 B. & Ad. 992).

The most obvious mode of determining an estate at will is an express declaration that the lessee shall hold no longer, either made on the land, nancy at will. or by notice given to the lessee (Co. Litt. 55 b). Any act of ownership exercised by the landlord, which is inconsistent with the nature of the estate, will operate as a determination of it (lb.; Co. Litt. 245 b). Thus, any conveyance by the lessor of the property, held at will, is evidence of dissent, and operates as a determination of the will (Dinsdale v. Iles, 2 Lev. 88). It may be determined by demand or by entry (Doe v. Chamberlaine, 5 M. & W. 16). It is clearly laid down, "that if the lessor, without the consent of the lessee, enter into the land, and cut down a tree, this is a determination of the will, for that it should otherwise be a wrong in him, unless the trees were excepted, and then it is no determination of the will, for then the act is lawful, albeit the will doth continue" (Co. Litt. 55 b). So a tenancy at will is determined by the landlord's entry on the land without the consent of the tenant, and cutting and carrying away stone therefrom (Doe v. Turner, 7 M. & W. 226). So in Ball v. Cullimore (2 C. M. & R. 120), it was held, that a feoffment by the lessor, with livery of seisin on the land, operates as a determination of the will, although the tenant at will be off the land at the time when the livery is made, and have no notice of the determination of the will. A tenancy at will is determined by an agreement to purchase (Daniels v. Davison, 16 Ves. 252). A letter from the owner to the tenant at will, stating that unless the latter paid what was due to the former, immediate measures would be taken to recover possession of the property, was held sufficient to determine the estate at will (Doe v. Price, 9 Bing. 356). Neither party can determine an estate at will at a time which would be prejudicial to the other (Co. Litt. 55 b, n. 16; Leighton v. Theed, 1 Ld. Raym. 707; Peacock v. Peacock, 16 Ves. 57). A tenant at will cannot put an end to his tenancy, even by an assignment, without giving notice to his landlord (Pinhorn v. Souster, 8 Exch. 763; see Melling v. Leak, 16 C. B.669). For the case where the lessor became an insolvent debtor, see Doe v. Thomas, 6 Exch. 854. The granting of a lease to a third person by the lessor of a tenant at will, though it determines the tenancy at will as against the lessor, does not give him such a right of entry as is contemplated by 3 & 4 Will. 4, c. 27, s. 2 (Hogan v. Hand, 14 Moore, P. C. C. 310; 9 W. R. 673). See further, as to the creation and determination of tenancies at will, the notes to Richardson v. Langridge (Tudor, L. C. Conv. 12, 3rd ed.); and Clayton v. Blakey (2 Smith, L. C. 118, 9th ed.; Woodfall, 237, 14th ed.) The proviso as to mortgagors and cestui que trusts was introduced to prevent the title of the mortgagee or trustee from being barred in twentyone years in those cases in which a mortgagor or cestui que trust in possession was held to be tenant at will to the mortgagee or trustee.

Proviso as to mortgagors and cestui que trusts.

Relation

between

mortgagee and mortgagor in possession.

The relation between mortgagor and mortgagee is perfectly anomalous and sui generis (2 Jac. & W. 183). The mortgagor is only like a tenant at will to the mortgagee, his legal interest being inferior to that of a strict tenant at will (Doug. 22, 282, 283). A mortgagor in possession

may be described in pleading as the tenant of the mortgagee in an action 3 & 4 Will. 4, by a third party (Partridge v. Bere, 5 B. & Ald. 604). The legal interest c. 27, s. 7. of the mortgagor after default is not more than that of a tenant by sufferance, and he may be treated as such or as a trespasser, at the election of a mortgagee (Doe v. Maisey, 8 B. & C. 767; see Wheeler v. Montefiore, 1 Gale & D. 493); and the mortgagor, or his tenant coming in after the mortgage, may be ejected without any demand of possession having been made (Ib.), either by the original mortgagee or by his assignee (Thunder v. Belcher, 3 East, 449); whereas a tenant at will cannot be ejected on a demise laid previous to the determination of the will (4 T. R. 680); and the mortgagor is not entitled to the growing crops after the will is determined, as in the case of a tenant at will (1 T. R. 383; see Coote on Mortgages, 325-330; Walmsley v. Milne, 7 C. B. N. S. 133; 5 B. & Ald. 605, n.) "It is now established, that a mortgagor only holds the possession of the land, and receives the rent of it, by the will or permission of the mortgagee, who may by ejectment, without giving notice, recover against him or his tenant. In this respect, the estate of a mortgagor is inferior to that of a tenant at will" (Bird v. Wright, 1 T. R. 378; see 4 Bligh, 97; Partridge v. Bere, 5 B. & Ald. 604; Hitchman v. Walton, 4 M. & W. 415; Doe v. Olley, 12 Ad. & Ell. 481). And this is so, even where by the mortgage deed the mortgagor attorned to the mortgagee as tenant at a quarterly rent, which was stated to be done for the purpose of securing the principal and interest, and in contemplation and part discharge thereof (Doe v. Tom, 4 Q. B. 615). In Doe v. Barton (11 Ad. & Ell. 314), Denman, C. J., said, "It is very dangerous to attempt to define the precise relation in which mortgagor and mortgagee stand to each other in any other terms than those very words; but thus much is established by the cases of Partridge v. Bere (5 B. & Ald. 604), and Hitchman v. Walton (4 M. & W. 409), that the mortgagee may treat the mortgagor as being rightfully in possession, and himself as reversioner, so that as long as he be not treated as a trespasser, his possession is not hostile to, nor inconsistent with, the mortgagee's right. (We purposely avoid the expression ' is not adverse,' by reason of the statutes 3 & 4 Will. 4, c. 27, and 7 Will. 4 & 1 Vict. c. 28.)" A mortgagor may be tenant at will to the mortgagee notwithstanding the reservation of a yearly rent by the mortgage deed (Doe v. Davies, 7 Exch. 89; Doe v. Cox, 11 Q. B. 122; Walker v. Giles, 6 C. B. 662; see the Metropolitan Co. 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 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 did not amount to a recognition by him that the mortgagor or his tenant was in lawful possession, and consequently was no defence to the ejectment (Doe v. Cadwallader, 2 B. & Ad. 473).

A mortgagor in possession may, as against a mortgagee, grant certain leases (Conv. Act, 1881, s. 18); and where the mortgagee has not given notice of his intention to take possession or enter into receipt of rents, the mortgagor may sue for rent or possession (Jud. Act, 1873, s. 25 (5)).

See further, as to the relation subsisting between a mortgagee and a mortgagor in possession, the note to Keech v. Hall (1 Smith, L. C. 546, 9th ed.), and Watkins on Conveyancing, 13, 9th ed.

By 7 Will. 4 & 1 Vict. c. 28, read in connection with 37 & 38 Vict. c. 57, s. 9 (post, pp. 159, 200), mortgagees may bring actions to recover the land mortgaged within twelve years after the last payment of principal or interest.

Where a mortgage was paid off, but no reconveyance executed, the proviso did not apply; and the legal estate of the mortgagee was extinguished by thirteen years' possession of the mortgagor, who was held to be a tenant at will (Sands to Thompson, 22 Ch. D. 614).

The general rule is, that a cestui que trust being in possession of the Relation estate, with the consent, or even the mere acquiescence, of the trustee, is between trus

S.

K