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specified period of time; or at the will of the parties. The relation arises when the tenant takes possession, not before.

§ 2. Leases in fee, for life, and for years. A lease in fee reserving rent to the lessor and his heirs and assigns is called fee-farm. Such leases are rare; and there is considerable room for debate, in the absence of statute, as to whether the assigns or even the heirs of the grantor can succeed to his rights under the lease against the grantee's grantee or heirs, or even against the grantee himself; but under the New York statutes it has been held that the grantor's devisee can enforce payment against the grantee's grantee, either by an action on the contract, by seizing a distress according to the terms of the original grant, or even by entering to defeat the grant by force of a condition inserted in the original grant that if the rent should not be paid as agreed the grantor or his heirs or assigns might make entry and defeat the grant and have the land absolutely (1).

A lease to one for the term of his life or the life of another or others is called a lease for life. A lease for any certain and specified time (years, weeks, months, or days) is called a lease for years; and when the lessee has made entry under the lease he is said to be possessed of his term. It has been held that until entry he has no such interest in the land that he can maintain an action at law against the lessor to recover it, though he may

(1)

Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer v. Ball, 19 N. Y. 100.

sue in equity for specific performance of an agreement to lease.

§ 3. Leases at will, at sufferance, and from year to year. When the letting is for no definite time, but at the will of both, or at the will of either (which the law makes mutual by giving the right to both), it is called a tenancy at will. When a tenant holds over after his legal right to remain in possession has terminated, he is somewhat inaccurately termed a tenant at sufferance; for if he was a tenant for years he thereby gives the landlord the right to elect to treat him as tenant for another term at the same rent, and in any event the landlord need only make a formal entry on the premises to acquire the right to sue the tenant holding over as a trespasser, and unless the landlord has by word or act given sanction to the holding over he need give no notice to quit, but may eject him summarily under the statutes and practice prevailing in the particular state. A lease for an indefinite period, with a reservation of periodical rent, payable yearly, monthly, or quarterly, is often called tenancy from year to year. Such holdings were originally merely at will; but they acquired this new name when the courts in England came to hold nearly two hundred years ago, that they could be terminated only by notice to quit at a rent day not less than six months after the giving of the notice. See the article on Title to Real Estate, §24, in Volume VI of this work. While a stipulation for the payment of rent is a common incident to the relation of landlord and tenant, this tenancy from year to year is the only kind of tenancy

to the existence of which the obligation to pay rent is essential.

§ 4. Leases by implication.. While the relation of landlord and tenant is ordinarily the result of contract, it may be raised by implication. A tenant for life with a limited power of leasing made a lease exceeding his power, and died during the term, after which the remainder-man accepted rent according to the contract with the life tenant and later sued the termor as a trespasser. The court held the suit not maintainable. The court said: "If the defendant were not a tenant he must have been a trespasser, and so he must have continued if he had remained on the premises for any number of years; but the plaintiff has, by his own act, admitted the defendant to be his tenant, and cannot, therefore, now consider him a trespasser. It has been said, however, that the plaintiff was ignorant of his title when he received this rent; but he was bound to know his own title, and he cannot avail himself of his ignorance to the prejudice of the defendant, and say that, because he did not examine his own title, he may consider the defendant as a trespasser and turn him out of possession without notice" (2). If there be a lease for a year, and by the consent of both parties the tenant continue in possession after the term is ended, that implies a tacit renewal of the contract to hold for another year at the same rent and subject to the same terms. But this relation of landlord and tenant is never implied when the acts and conduct of the parties are in

(2) Doe d. Martin v. Watts 7 Term 83,

consistent with it, as a wrongful entry and adverse possession, entry under void contract to buy, &c. For the reason that the nature of the relation of landlord and tenant is generally well known to the intelligent citizen, this general statement of the nature of the relation can best be continued by pointing out what does not create that relation.

§ 5. License and lease distinguished. There is often serious doubt as to whether the agreement of the parties contemplated a permission to the one to use the property of the other without acquiring any interest in it (which would be a license) or gave the other such a possessory interest as to create the relation of landlord and tenant. In one case the fire commission ordered the removal of seats in a theatre after tickets for the performance had been sold; the purchaser demanded the seats he had been promised, and made such a disturbance on denial of them that he was told to leave or take other seats offered; he left and brought suit as for a trespass; and it was held that he could not recover. He might have recovered in an action for the money he had paid, but he could not recover on the theory that he was a tenant of the seats; he was merely a licensee (3). In another case it was held that an agreement by the owner of land that another should have the right to cut as much wood as he pleased on the land, paying 25c. per cord for the same, did not create the relation of landlord and tenant, but of licensor and licensee; and that the licensee could not recover in an action of trespass when he was compelled

(3) Horney v. Nixon, 213 Pa. St. 20.

to stop (4). A few of the important results flowing from the fact that it is a license and not a lease are that the license is not assignable, is valid though created without any writing or legal form, and may usually be revoked at will.

§ 6. Assignment and lease distinguished. If the tenant grants to another the right to occupy the whole or a part of the premises demised for a part of the term, even for all but the last day of the term, this is a sublease; and the new tenant becomes tenant of the first tenant, not tenant of the original lessor. But whenever the whole term is made over by the lessee, although the deed by which this is done contains new covenants between the parties to it and reserves additional rent and a right of re-entry and distress for non-payment of it, yet the instrument amounts to an assignment; the result of which is that the original lessor may sue the assignee and is liable to be sued by him on the covenants contained in the original lease which run with the land and the reversion as hereinafter explained (see §§ 34-35, below).

§ 7. Lodger and tenant distinguished. An entire floor, a series of rooms, or a single room, may, no doubt, be let for lodgings and so separated from the rest of the house and given over to the possession of the lodger as to create the relation of landlord and tenant between him and the proprietor of the house. But when one contracts with the keeper of a hotel or boarding-house for rooms and board, or for rooms alone, whether for a

(4) Kitchen v. Pridgen, 3 Jones Law (N. Car.) 49.

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