Ibid. 279. Tal. 22. Bac. Abr. tit. only voidable, was abfolutely void on the death of the hufband: but that the acts done by the widow, the deed being in poffeffion of the mortgagee, were tantamount to a redelivery, which, without a re-execution, is equivalent to a new grant. A mortgagee, after giving notice of the mortgage to the tenant in poffeffion under a leafe prior to the mortgage, is entitled to the rent in arrear at the time of the notice, as well as to that which accrues afterwards, and he may diftrain for it after fuch notice. The legal intereft of a mortgagor in poffeffion is inferior to that of a mere ftrict tenant at will. If a man mortgages his land, and, as is ufual, ftill continues Mortgage (C.) in poffeflion, and levies a fine, and five years pass, yet the mortgage is not barred; for though the mortgagee be, in reality, out of poffeffion, yet when that is done by the confent of both parties, and the nature of the contract requires that it should be fo while the intereft is paid, it is against the original defign of the contract that any act of the mortgagor, except the payment of the money, should deprive the mortgagee of his fecurity, and it is no less than a fraud, which of course the law will not countenance. Doug. 22. Bac. Abr. tit. Com. Dig. tit. Where the leafe is not a beneficial lease, it is for the interest of the mortgagee to continue the tenant; and where it is, the tenant may put himself in the place of the mortgagor, and either redeem himself or get a friend to do it. Upon a refufal of the money by the mortgagor, a tender being made at the place and at fome time of the day specified in the condition, the condition is faved for ever, and the land is difcharged, because upon the tender the demife is void. If one mortgage his reverfion in fee to the leffee for years, whereby his term is furrendered, and afterwards pays the money pursuant to the condition, yet his term fhall be extinguished and not revived. By ftat. 4. William and Mary c. 16. s. 3. it is enacted, that if any person who has once mortgaged any lands or tenements to another, fhall again mortgage the fame or any part thereof to a fecond mortgagee, the former mortgage being in force and not difcharged, and fhall not discover to fuch fuch fecond mortgagee the former mortgage in writing under their hand, that then fuch mortgagor, his heirs, &c. shall have no relief or equity of redemption against the said fecond mortgagee; but fuch fecond mortgagee, his heirs, &c. may hold and enjoy fuch more than once mortgaged lands and tenements for fuch eftate or term as was granted or conveyed by the faid mortgagor against him, his heirs, c. freed from equity of redemption, and as fully to all intents and purposes as if the fame had been an absolute purchase, and without any power or liberty of redemption.Under mortgagees may redeem by fection 7 of the act. CHAPTER CHAPTER VII. For what Term Leafes may be made. SECTION I. Of Tenants from Year to Year. SECTION II. Of Tenants for a lefs Term (monthly weekly, Sc.) ST. R. 3. 3 T. R. 16. Com. Dig. tit. 1 Bl. R. 1171. Ibid. BI. R. 1225. 3 T. R. 17. Efp. R. 266. SECTION 1. Of Tenants from Year to Year, wherein of notices to quit. THAT HAT which was formerly confidered as a tenancy at will has been fince properly conftrued to enure as a tenancy from year to year; which therefore may now be faid to be when a man lets lands or tenements to another without limiting any certain or determinate eftate; efpeci ally if an annual rent be reserved. A general parol demise therefore at an annual rent, where the bulk of the farm is enclofed and a small part of it in the open common fields, is only a leafe from year to year; and not for fuch time as the round of husbandry continues. But where the crop, as of liquorice, madder, &c. does not come to perfection in lefs than two years, it might be otherwife. In tenancies from year to year, therefore, there must be fix months notice on either fide to quit, according to the antient law; except where any fpecial agreement, or the cuftom of particular places, intervene. Where rent is referved quarterly, it does not difpenfe with the regular fix month's notice to quit required by law ; but is merely a collateral matter. So, though a lease be void by the ftatute of Frauds as to 5 T. R.471. the duration of the term, the tenant holds under the terms of the lease in other refpects; and therefore the landlord can only put an end to the tenancy at the expiration of the year. When a leafe is determinable on a certain event, or at a IT. R 54, 162; particular period, no notice to quit is neceffary, because both parties are equally apprized of the determination of the term. If there be a lease for a year, and by confent of both Ibid. 162. parties the tenant continue in poffeffion afterwards, the law implies a tacit renovation of the contract; for where a te- 1 T. R. 572. nant holds over after the expiration of his term, without having entered into any new contract, he holds upon the former terms: they are therefore fuppofed to have renewed the old agreement, which was to hold for a year. But then it is neceffary, for the fake of convenience, that if either party should be inclined to change his mind, he fhould give the other half a year's notice before the expiration of the next or any following year. So, where tenant for life grants a leafe for years which is 7 T. R. 478. void against the remainder-man, and the latter, before he elects to avoid it, receives rent from the tenant, whereby a tenancy from year to year is created, yet this is with reference to the old term, and therefore a half year's notice to quit from the remainder-man ending with the old year is good. So, where tenant for life makes a lease for years, to com- 1 H. Bl. R. 974 mence on a certain day, and dies before the expiration of the leafe, in the middle of the year; the remainder-man receives rent from the leffee, (who continues in poffeffion, but not under a fresh leafe) for two years together on the days of payment mentioned in the lease: this was held to be evidence from which an agreement will be prefumed to fubfift between the remainder-man and the leffee, that the leffee should continue to hold from the day, and according to the terms, of the leafe; fo that notice to quit ending on that day is proper. The "fix months" notice means half a year; and not Ibid. 3 Will 25. merely the space of fix months at any time of the year: 2 Salk. 413. for I Esp. R. 266, N 2 Bl. R. 1224. 1 T. R. 161. Ibid. Efp. N. P. 460. Bl R. 535: Efp. N. P. 461. 4 T. R. 360. 1 Bl. R. 596. for fuch half year's notice muft expire at the end of the year, or it will not be a good notice. An agreement therefore to take a farm, the arable from old Candlemas, the pasture from old Lady-day, and the meadow from old May-day, paying rent half yearly at old Michaelmas and Lady-day, is fubftantially a taking of the whole from old Lady-day, and notice to quit delivered before old Michaelmas, is fufficient to determine the tenancy. For this reafon it has been held, that a notice to quit at Lady-day was primâ facie evidence of a holding from Ladyday to Lady-day, till the contrary was shewn. So, where the leffor of the plaintiff in an ejectment could not prove the time when the term commenced, and the tenant proved it to be different from the time to quit mentioned in the notice, the plaintiff was non-fuited. But notwithstanding, where the notice was given on the 30th of September, being the day after Michaelmas-day, to quit at Lady-day following, Mr. J. Heath ruled the notice fufficient: this was probably on the principle of its being reasonable notice; and what is reasonable is matter of circumftance. So, it is faid to have been ruled at Nifi Prius, that where notice to quit has been ferved on the tenant, and the landlord being ignorant of the time when the tenancy commenced, has given the notice to quit at the wrong time, that is, not at the end of the year, that the tenant when the notice is ferved ought to inform the landlord of his error and mention the true time. The rule however is otherwife; for if notice to quit at Midfummer be given to a tenant holding from Michaelmas, he may infift on the infufficiency of the notice at the trial of an ejectment, though he did not make any objection at the time that it was ferved; but faid "I pay rent enough al"ready, and it is hard to ufe me thus;" for the expreffion is merely that of an angry man. It once was doubted, whether if the landlord or tenant died, the fame notice to his executors or administrators was neceffary as would have been requifite had he lived; and it was even fuggefted that a month's notice in fuch case would fuffice. |