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sion, had the front painted in order to obliterate the defendant's sign, made necessary repairs, tried to find a new tenant, and finally rented them to Guan Kee for a laundry, for five years from October 1, at $40 per month, which he says was the very best he could do. The new lease extended nearly one year beyond the term of the defendants' lease. So far as appears nothing was said or done by plaintiff, other than as above stated, to qualify his acts in taking possession, and reletting. He did not inform defendants that he did not accept the offered surrender, nor that he would relet on their account. This suit was commenced December 3, 1888.
“Do these facts show a surrender of the term? A surrender is the yielding up of an estate for life or years to the reversioner or remainderman. Under the statute of frauds, it can be done only by express consent of the parties in writing, or by operation of law when the parties do something which implies that both have consented. These acts are such as the parties would be estopped from disputing, and which would not be valid unless the term were ended; as, for instance, a new lease accepted by the tenant, or the resumption of possession by the landlord if the tenant acquiesces, or the giving of a lease to another. And any act which will amount to an eviction will estop the landlord, and make a formal surrender unnecessary. And, while it is said that a surrender by operation of law is by acts which imply mutual consent, it is quite evident that such result is quite independent of the intention of the parties that their acts shall have that effect. The landlord may accept the keys, take possession, put a bill on the house ‘For Rent,' and at the same time apprise the tenant that he still holds him liable for the rent. All this, it was said in Marseilles v. Kerr (7), is for the benefit of the tenant, and is not intended, nor can it have the effect, to put an end to the contract and discharge him from rent. In that case the trial court had instructed the jury, in effect, that, if the tenant gave up the demised premises, the landlord may re-enter and relet, and that it is for the advantage of the tenant that he should do so, and being for the mutual advantage of the parties, it raises no presumption that the landlord has accepted a surrender. Of this instruction the court said: “We see no error in this. It is good sense as well as good law.' In that case the landlord expressly refused to accept a surrender, and notified the defendant that he would hold him for the rent.
“While there are many cases which hold to this view, the weight of authority and the better reason are the other way. The term is an estate in lands. The tenant, subject to the covenants of the lease, is the owner of the term. If he leaves the demised premises vacant and avows his intention not to be bound by the lease, his title still continues, unless the landlord has accepted the offer of surrender. The landlord has no more right to the possession of the lease than a stranger. Admit that he may take such care of the property as will prevent waste, still he must not interfere with the right of the tenant to the absolute dominion and control. If he does so interfere it is an eviction, and the tenant will be released. The tenant cannot
(7) 6 Wharton, 500.
abandon his title; and notwithstanding he has gone out, unless the surrender is accepted, that continues. It is his right to resume possession at any time during his term. If he brings ejectment against the new tenant, what defense can the new tenant have, except that plaintiff's right has ceased? How has it ended unless by surrender? The assertion that the reletting is for the interest of the tenant is gratuitous and unwarrantable, though, if it were true, how would that fact tend to show authority in the landlord to dispose of the tenant's property? Any person might assume authority on the same ground.” Judgment for defendant (8).
$ 120. Right to emblements. Emblements are the annual produce of the soil resulting from annual planting, such as corn, wheat, and the like; but berries, peaches, and grass, which grow annually from the parent root or stalk, are not emblements, and the way-going tenant is entitled to none of them. If a tenant for a definite term plants a crop which will not mature before the expiration of his term, he has no right to return after his term is out to harvest his crop, for he is bound to know when his time is to be up, and it was his folly to plant what he could not harvest. He must then take them for what they are worth or abandon them. If any tenant terminates his term of his own voluntary act, he has no right to return later to harvest crops he has planted and which had not matured when the lease was terminated. Thus if a widow holding during widowhood should sublet part of the premises and she and the subtenant should each plant crops, and then
(8) Welcome v. Hess, 90 Cal. 507.
she should marry before the harvest, the reversioner or remainderman would be entitled to the crops she had planted, and she would have no right to remain or to return for that purpose. But her subtenant would have a better right; for it is a principle of public policy to encourage industry, and planting would be discouraged if the right to harvest were doubtful. Therefore, the courts hold that if an estate for life or at will is terminated between seed time and harvest the tenant at will or the representative of the life tenant has a right to return after the termination of the term or estate to cultivate and harvest and remove the crop. The same rule applies to an estate for years terminated by some collateral event not due to the fault of the tenant.
PERSONAL PROPERTY AND BAILMENTS.
81. Luce holds Green's promissory note for $1,000. What is the legal difference between the nature of Luce's right in the note as the embodiment of his claim against Green and the claim against Green itself?
882 to 7. To which of the two representatives of the deceased, heir or executor, would the following pieces of property go on the death of the owner: An acre of land, shares of stock in a corporation dealing exclusively in real estate, an annuity, a lease for 10 years, a mortgage that was not yet due, the fish in a fish-pond on the property, a collection of mounted fish?
§ 8. What is the difference between a 'chattel personal” and chattel real?" 8 9. What is the difference between a “chose in possession" and "chose in action p”
$ $ 11 to 16. What is the difference in result between bringing an action of replevin and an action of trespass ?
§ 18. Thomas was hunting and started a fox and shot it so that it bled but was not seriously hurt. While Thomas was chasing it the fox was killed by Guy, but before either Thomas or Guy could reach it, it was picked up by Chase. Which one is entitled to the possession of the animal ?
8 27. Snow, being under a mistake as to the location of the boundary between his land and Todd's, went on Todd's land and cut and hauled away lumber worth $100 as it stood. He made it into furniture worth $1,500. Assuming that Todd can identify the furniture as made from his lumber, who is entitled to it?
§ 28. Suppose in the above case that Snow had known where the boundary was and purposely gone on Todd's land and cut. Would that make any difference?
Suppose Snow, having cut and hauled away in bad faith had sold the lumber for $110 to Hill, who bought in good faith and made it into furniture worth $1,500, what would have been the respective rights of Todd and Hill in the furniture ?
8 29. Suppose the fence between Dane's land and Hale's land was blown down by a storm and 300 sheep belonging to Dane and