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second deed were lost, there appeared to be an absolute term in the mortgagee (a).
The common method of mortgaging however, is by a demise of the land for a term, under a condition to be void on payment of the mortgage-money and interest; and a covenant is inserted at the end of the deed, that till default shall be made in the payment of the money borrowed, the mortgagor shall receive the rents and profits, without account (a).
A mortgage in the form of a lease was granted of a feme-covert's estate, by the husband and wife. After the husband's death, the deed being in the hands of the mortgagee, the widow had directed the tenants in possession to attorn to the mortgagee, had settled with him for the balance of the rents, styling him mortgagee, and had not questioned his possession for many years. In delivering the judgment of the Court, Lord Mansfield said, that they were all of opinion that the conveyance in this case, though in the form of a lease, was in substance a mortgage, and not being within the reason for which leases by a feme-covert are held to be only voidable, was absolutely void on the death of the husband: but that the acts done by the widow, the deed being in possession of the mortgagee, were tantamount to a re-delivery, which without a re-execution, is equivalent to a new grant (b).
Where the lease 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 (c).
Upon a refusal of the money by the mortgagee, a tender being made at the place and at some time of the day specified in the condition, the condition is saved for ever, and the land is discharged, because upon the tender the demise is void (d).
But if one mortgage his reversion in fee to the lessee for years, whereby his term is surrendered, and afterwards pay the money pursuant to the condition, yet his term shall be extinguished and not revived (e).
For what Term Leases may be made.
Section I. Of Tenants from Year to Year, wherein of Notice to quit.
Section II. Of Tenants for a less Term, wherein of
Section III. Of strict Tenants at Will.
Section IV. Of Tenants at Sufferance.
Section I. Of Tenants from Year to Year, wherein of Notice to quit.
^PHAT which was formerly considered as a tenancy at will has A. been since properly construed to enure as a tenancy from year to year, which, therefore, may now be said to be when a man lets lands or tenements to another, without limiting any certain or determinate estate -, especially if an annual rent be reserved.
A general parol demise, therefore, at an annual rent, where the bulk of the farm is enclosed and a small part of it in the open common fields, is only a lease from year to year ; and not for such time as the round of husbandry continues (a). But where the crop, as of liquorice, madder, &c. does not come to perfection in less than two years, it might be otherwise (b).
Averment in a declaration that plaintiff was possessed of premises for the remainder of a certain term of years then unexpired therein, which he agreed to assign to the defendant, is supported by evidence of a tenancy from year to year (£).
The distinction taken between a tenant from year to year and a tenant for a term of years, is rather a distinction in words, than in substance. A tenant from year to year is entitled to estovers, and the same advantages as a tenant for a term of years; in truth, he is a tenant from year to year as long as both parties please: and considering how many large estates are held by this tenure, it would be dangerous to say that the term ceased at the end of the year (c).
It would be extremely unjust, that a tenant who occupies land, should, after he has sown it, be turned out of possession without reasonable notice to quit; and it was in order to avoid so unjust a mea
W Roe d- Bree v. Lees, a Bl. R. iijrx. j (c) Rex v. Stone. 6 T. R, W97(') Bottling v. Marten, I Campb. 31;.
sure, that so long ago as in the time of the Year-Books it was held that a general occupation was an occupation from year to year, and that the tenant could not be turned out of possession without reasonable notice to quit; and that rule has always prevailed since (a). The doctrine, in truth, respecting notice to quit was laid down as early as the reign of Henry VIII. (b).
Touching the distinction between six months' and half a year's notice, the case in the Year-Books requires half a year's notice; for the moment the year began the tenant had a right to hold to the end of that year (b). The six months' notice, therefore, means half a year, and not merely the space of six months at any time of the year; for such half year's notice must expire at the end of the year, or it will not be a good notice (c).
If there be a lease for a year, and by consent of both parties the tenant continue in possession afterwards, the law implies a tacit renovation of the contract; for where a tenant holds over after the expiration of his term, without having entered into any new contract, he holds upon the former terms: they are therefore supposed to have renewed the old agreement, which was to hold for a year. But then it is necessary, for the sake of convenience, that if either party should be inclined to change his mind, he should give the other half a year's notice before the expiration of the next or any following year (b).
In tenancies from year to year there must always be six months' notice to quit on either side, according to the ancient law; except where any special agreement, or the custom of particular places intervenes (d).
But, by special custom, three months' notice, or twelve months', will be the proper notice (?). As by the custom of London, where a tenant under the yearly rent of 40J. is only entitled to a quarter's notice (/).
An agreement by which "the tenant is always to be subject to quit at three months' notice," constitutes a tenancy which may be determined by a three months' notice to quit, expiring at the same time of the year it commenced, or at any corresponding quarter-day (g).
But where premises are let from year to year upon an agreement that either party may determine the tenancy by a quarter's notice; this notice must expire at the period of the year when the tenancy commenced (S).
A quarterly reservation of rent is not of itself sufficient to dispense with the necessity of a regular six months' notice to quit (a).
Though a lease be void by the Statute of Frauds as to the duration of the term, the tenant holds under the terms of the lease in other respects; and therefore the landlord can only put an end to the tenancy at the expiration of the year (b).
So, where tenant for life grants a lease for years which is 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 (r).
So, where tenant for life makes a lease for years, to commence on a certain day, and dies before the expiration of the lease, in the middle of the year; the remainder-man receives rent from the lessee, (who continues in possession, but not under a fresh lease) 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 presumed to subsist between the remainder-man and the lessee, that the lessee should continue to hold from the day, and according to the terms of the lease; so that notice to quit ending on that day is proper (d).
Tenant in tail having received an ancient rent of i/. I8j. 6d. from the lessee in possession under a void lease granted by tenant for life under a power, the rack-rent value of which was pol. a year, cannot maintain an ejectment laying his demise, at least, on a prior day, without giving the lessee some notice to quit, so as to make him a trespasser after such recognition of a lawful possession either in relation of tenant, or at least as continuing by sufferance till notice (e).
It once was doubted, whether if the landlord or tenant died, the same notice to his executors or administrators was necessary as would have been requisite had he lived; and it was even suggested that a month's notice in such case would suffice (f).
It is now settled, however, that in the case of a tenancy from year to year as long as both parties please, if the tenant die intestate, his administrator, as his legal representative, has the same interest in the land which his intestate had; for such tenancy is a chattel interest, and whatever chattel the intestate had, must vest in his administrator as his legal representative (g).
In this respect the right and the remedy must be reciprocal; as the
representative capacity of executor or administrator is not affected by the testator or intestate having been in the situation of either landlord or tenant.
But although, if the testator die in the possession of a term for years, it shall vest in the executor, and although if it be worth nothing, he cannot waive it, for he must renounce the executorship in ioto or not at all ; yet this is to be understood only where the executor has assets: for he may relinquish the lease, if the property be insufficient to pay the rent; but in case there are assets, to be at the loss for some years, though not during the whole term, it seems the executor is bound to continue tenant till the fund is exhausted, when on giving notice (thereof) to the lessor, he may waive the possession (a).
So in the case of an infant. Therefore, where an infant becomes entitled to the reversion of an estate leased from year to year, he cannot eject the tenant without giving the same notice as the original lessor must have given (b). Also if a tenant hold under an agreement for a lease at a yearly rent, whereby it is stipulated that the agreement shall continue for the life of the lessor, and that a clause shall be inserted in the lease, giving the lessor's son power to take the house for himself when he came of age, the son must make his election in a reasonable time, as for example, a week or fortnight, after he comes of age; the delay of a year is unreasonable, and the tenant cannot be ejected upon half a year's notice to quit served after such a delay (r).
So, where an ejectment has been brought on the demise of an infant, which action is compromised, and the tenant in possession attorns to the defendant; though the infant, on coming of age, does not accept rent or do any act to confirm the tenancy, yet, as the former ejectment was brought at his suit and for his benefit, he shall not be allowed to consider the tenant as a trespasser, and bring a new ejectment without giving notice to quit (d).
Tenant from year to year also before a mortgage or grant of the reversion, is entitled to six months' notice to quit before the end of the year from the mortgagee or grantee (e).
Thus where a tenant held from the 22d of November as a yearly tenant; and a mortgagee who became such in July was desirous of ousting him, it was too late to give notice then for the tenant to quit at the end of the current year; for the tenant, at the time that the mortgagee's title accrued, had as permanent an interest in the estate till the 22d of November, as if it had been leased to him by deed till that period (e).
(a) Toll. Law of Executors and Administrators. IC9. and cases there cited.
fi) Maddon d. Baker v. White. 2 T. R.
(t) Doe d. Bromfield v. Smith, a T. R. (d) Doe d. Miller v. Noden. » Esp. 530.
159. I (f) Birch v. Wright. I T. R. 378.80.