pay to the Landlord and his legal representatives as damages for such default and re-entry the difference as ascertained from time to time between the rents and sums hereby reserved and agreed to be paid by the Tenant and those otherwise received or with due diligence collectible on account of rents of the demised premises during the residue of the term remaining at the time of re-entry. The Tenant hereby expressly waives the service of notice of intention to re-enter or of instituting legal proceedings to that end. IN WITNESS WHEREOF, the said W. L. Dechant has hereunto set his hand and seal, and the said Tenant has hereunto set his hand and seal the day and year first above written. Signed, sealed and delivered in the presence of W. L. DECHANT, 492. Rights of the landlord.-The most important right of the landlord is his right to rent, which, in the absence of an express provision in the lease, statute or local custom, is payable at the end of the term. If the tenant fails to pay the rent on the due date, the landlord may make demand and sue for it. The landlord also has the right of distress, which is the right to enter leased premises and to seize the personal property found thereon, whether belonging to the tenant or to a stranger, and to sell the same in satisfaction of the claim for rent. This rule is changed in many states by statutes which provide that the right of distress can be exercised under certain conditions only.1 In the absence of any provision in the lease a tenant who holds over after the termination of his term may be treated by the landlord as a tenant for another term under the provisions of the lease, or as a trespasser. In some states where the lease is for a period of one year or more, a new term is created for one year and not for a period equal to the original term specified in the lease. If the premises are in the possession of a subtenant, a holding over by him binds the lessee as though he were in possession himself. 1 The right of distress has been abolished entirely in Alabama, District of Columbia, Georgia, Louisiana, Massachusetts, Minnesota, Mississippi, Missouri, Montana, New York, North Carolina, Utah and Wisconsin. A tenant cannot defend an action on the ground that his landlord never had any title, but he is permitted to prove that the title of the landlord has been transferred to another person since the commencement of the tenancy. 493. Rights of the tenant.-Unless there is an express covenant in the lease to the contrary, the tenant has no right to demand that the leased premises shall be in a condition fit for the purposes for which they were rented. A landlord, however, is bound to notify his tenant of any concealed and dangerous defects, such as dangerous defects in the building or infection with the germs of a dangerous disease. In some states the lease of a furnished house carries with it an implied covenant that it shall be habitable. The duty to make repairs in the absence of an express agreement to the contrary is on the tenant, and the law will not imply a contract on the part of a landlord to continue making repairs, if he has voluntarily done so in the past. In drawing a lease a tenant should be careful to provide for a rebatement of rent in case of fire or the destruction of the premises from any other cause and to save himself by a suitable provision from the burden of rebuilding. A tenant cannot commit waste, which in general means that he cannot cut down trees except for repairs and for fuel, nor can he tear down buildings, open mines, remove clay or sand or otherwise injure the property. A tenant may be enjoined from committing waste and may be sued for treble damages; in some states he forfeits the lease. In the absence of an express provision in the lease a mine already opened may be worked. of 494. Termination of tenancy.-A tenancy for a term years terminates upon the expiration of the term, by agreement of the parties, by a termination of the landlord's estate, by an acquisition of the tenant's estate by the landlord, by eviction, by forfeiture, or by surrender. A lease is not ordinarily terminated by the death of either lessor or lessee. A voluntary sale of the premises does not terminate the lease, but merely terminates the relation of landlord and tenant. But a sale of the premises on the foreclosure of a mortgage antedating the lease, or the sale of the premises under an execution, where the judgment was issued before the lease was made, terminates the lease. 495. Eviction.-An eviction may be actual or constructive. An actual eviction by the wrongful act of the landlord or of somebody who has a paramount title terminates the relation. An eviction from part of the leased premises does not terminate the lease, but the landlord can claim no rent during the continuance of the eviction. Tenants are constructively evicted and relieved from further payment of rent when they voluntarily move on account of some dangerous condition of the premises for which the landlord is responsible. A constructive eviction is not complete till the tenant abandons possession. By statute in most states, the destruction of the demised premises by fire or by the elements terminates the lease. 496. Forfeiture and surrender.-By forfeiture is meant the right of the lessor to terminate the lease because of a breach of covenant or some other wrongful act of the lessee. The subject of forfeitures is regulated in most states by statutes which usually provide that before the lease can be forfeited there must be a demand upon the lessee to perform his covenants and a notice that if the covenant is not performed, the lessor intends to take steps to forfeit the lease. The term surrender is applied to the act by which a lessee gives up his estate to his landlord. A surrender may be expressed or implied. A surrender is implied when the lessee has abandoned the premises and the lessor has accepted the surrender by some unequivocal act which shows an intention to terminate the lease. It has been held that where a clause in a lease provides that a surrender shall not be valid unless accepted in writing by the landlord, the provision as to the acceptance in writing may be waived orally. CHAPTER XXX TRANSFER OF PROPERTY BY WILL OR AD- 497. Definitions and classifications.-A will is a solemn and legal declaration made by a person to designate the person or persons who shall possess and enjoy his property, or certain parts of it after his death. A written will is one that is expressed in some form of decipherable symbols. An olographic or holographic will is one written wholly in the handwriting of the testator. In many states an olographic will may be proved more easily than other forms of wills. A nuncupative will is a verbal will permitted under certain circumstances in all the states of the Union except Connecticut and Louisiana. Often a nuncupative will is valid when made during the testator's last illness and in anticipation of death, and reduced to writing within a specified period after the words were spoken by the testator.1 codicil is an amendment to a will which changes some of its provisions or adds to it, but does not entirely revoke it. Codicils should be executed with the same formality required in the case of wills. A 498. Who may make wills.-The general rule is that every person of full age and of sound mind, who is not under some legal disability, may make a will. Recent statutes in most states permit married women to make 1 "No nuncupative or unwritten will bequeathing personal estate shall be valid, unless made by a soldier while in actual military service, or by a mariner while at sea." Decedent Estate Law, Chapter XIII of Consolidated Laws, N. Y., Sec. 16. |