when derived from the king's debtor, the king cannot distrein for his *139] debt; if contracted during the coverture. (m) But on the other hand, a widow may enter at once, without any formal process, on her jointure land; as she also might have done on dower ad ostium ecclesiæ, which a jointure in many points resembles; and the resemblance was still greater while that species of dower continued in its primitive state: whereas no small trouble, and a very tedious method of proceeding, is necessary to compel a legal assignment of dower. (n)(123) And, what is more, though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow.(0)(124) Wherefore Sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesiæ, the most eligible species of any. (125) CHAPTER IX. OF ESTATES LESS THAN FREEHOLD. Of estates that are less than freehold, there are three sorts: 1. Estates for years: 2. Estates at will: 3. Estates by sufferance. (1) (123) Washburn on Real Prop. vol. 1, 5 ed. p. 281. (124) Ambler v. Norton, 4 Henning and Munford, 47 Va. (1809). (125) Besides the method of jointures, the ingenuity of modern times devised other modes of preventing the wife from acquiring a title to dower. One of these has been most extensively employed, and is still applicable to the case of widows who were married on or before the 1st day of January, 1834, (the date fixed by the statute 3 & 4 W. IV. c. 105.) Under the old law, if an estate were conveyed simply to a man in fee-simple or in fee-tail, the title of his widow to dower, in the absence of any bar by way of jointure, immediately attached, and he could not again sell the estate discharged of this claim without the concurrence of the wife in a fine or recovery, or, since the statute abolishing these modes of assurance, in a statutory deed of disposition or release. To avoid this inconvenience, it became usual, in the conveyance of estates, to limit the lands to the purchaser for his natural life, with remainder to a trustee in trust for him during his life, in case of his life-estate becoming forfeited or determined by any means during his lifetime, with remainder to the purchaser in fee. It followed, from the construction put upon these limitations by the courts of law, that the husband during his lifetime never had an estate of inheritance in possession in the lands, and consequently the wife's title to dower never attached. Through the medium of the statute of uses, hereafter to be explained, the purchaser was also clothed with a power of appointment, by which he could at once dispose of the fee-simple in any manner he pleased, and which effectually defeated the wife's claim. This plan, known among conveyancers as the limitation to uses to bar dower, is still used whenever it is necessary to convey lands to a married man whose marriage took place on or before the 1st of January, 1834. But, with regard to purchasers married since that day, this device, although sometimes employed for the purpose of obviating future questions as to the date of the marriage, is no longer necessary. For now a husband, whether he become entitled to an estate by actual conveyance or by inheritance or devise, may absolutely dispose of it either in his lifetime or by his will, or may charge or encumber it as he pleases, to the exclusion of his wife's title to dower. He may, either at the time of taking a conveyance to himself of the estate, or at any time thereafter, and either by deed or by his will, declare that his wife shall not be entitled to dower out of his estates; or he may declare that she shall be entitled to it out of some portion only of the property. The widow's right to dower may also, by the husband's will, be made subject to any condition, restriction, or direction which he chooses to impose; and her right will be defeated by a devise to her of lands, or of any estate or interest therein, out of which she would otherwise be dowable, unless a contrary intention shall be declared by the will.-KERR. (1) Wiggins Ferry Co. v. O. & M. Ry. Co., 94 Ill. 93 (1879), (as to what does not constitute est. for years). 2 Ballard's Law of R. P. 378. Brantly Personal Property, 7. I. An estate for years is a contract for the possession of lands or tenements for some determinate period; (2) and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee, (a) and the lessee enters thereon. (b)(3) If the lease be but for half a year or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings; (4) a year being the shortest term which the law in this case takes notice of. (c) And this may, not improperly, lead us into a short digression concerning the division and calculation of time by the English law. (5) The space of a year(6) is a determinate and well-known period, consisting commonly of 365 days; for though in bis sextile or leap [*141 years it consists properly of 366, yet by the statute 21 Hen. III. the (a) We may here remark, once for all, that the terminations of "or" and " -ee" obtain, in law, the one an active, the other a passive, signification; the former usually denoting the doer of any act, the latter him to whom it is done. The feoffor is he that maketh a feoffment; the feoffee is he to whom it is made. The donor is one that giveth (2) 6 Lawson Prop. Rights, 27, 96 (1890). (3) Of course our author will be understood to put this case of letting only as a particular instance of one mode in which an estate for years may be created. See post, p. 143. There are obviously various ways in which such an estate may arise. Thus, where a person devises lands to his executors for payment of his debts, or until his debts are paid, the executors take an estate, not of freehold, but for so many years as are necessary to raise the sum required. Carter v. Barnardiston, 1 P. Wms. 509. Hitchens v. Hitchens, 2 Vern. 404. S. C. 2 Freem. 242. Doe v. Simpson, 5 East, 171. Doe v. Nicholls, I Barn. & Cress. 342. Though, in such case, if a gross sum ought to be paid at a fixed time, and the annual rents and profits will not enable them to make the payment within that time, the court of chancery will direct a sale or mortgage of the estate, as circumstances may render one course or the other most proper. Barry v. Askham, 2 Vern. 26. Sheldon v. Dormer, 2 Vern. 311, Green v. Belchier, i Atk. 506. Allan v. Backhouse, I Ves. & Bea. 75. Bootle v. Blundell, 1 Meriv. 233.-CHITTY. (4) Hare on Contracts, 92 (1887). Boone Real Property, 102, 123. A written lease "for the season," being a demise for a certain time, though it may be construed to be for a term less than a year, is technically a lease for years. Kelly v. Waite, 53 Metcalf, 302 (Mass. 1847). A lease for a time certain, though less than a year, is a lease "for one or more years" within the landlord and tenant act (21 Mch. 1772, Pa.). Shaffer v. Sutton, 5 Binn. (Pa.) 230 (1813), “a lease for years " is used in the same sense as an estate for years," and embraces a lease for a single year. King v. Foscue, 91 N. C. 120 (1884). People v. Westervelt, 17 N. Y. 679, Wend. (1837). Schaffer v. McOuat, 40 Ind. 523 (1872). 6 Lawson Property Rights, 2796 (1890). Smith's Land. and Ten. 47. Goodeve's Modern Law of Real Property, Ch. 6-149 (1891). No particular form of words is necessary to constitute a lease, but any language is sufficient which shows that one intends to dispossess himself of the premises, and the other to enter under him for a determined time. Schouler's Pers. Prop. vol. 1, p. 30 (1884). (5) In estimating the language which is necessary to constitute a lease, the form of words used is of no consequence. It is not necessary that the term lease should be used. Whatever is equivalent will be equally available. If the words assume the form of a license, covenant, or agreement, and the other requisites of a lease are present, they will be sufficient. Moore v. Miller, 8 Barr, 283. Watson v. O'Kern, 6 Watts, 368. Offerman v. Starr, 2 Barr, 394. Grenough's Appeal, 9 Barr, 18. Mashier v. Reding, 3 Fairf. 478. It is necessary that the contract should have reference to, and include, the possession of the premises by the tenant. An agreement by the owner of lands or farms, in possession, with a person to cultivate and sow the land, or some portion thereof, with corn or grain of some sort, on condition of the latter having a certain portion of the grain grown thereon, does not make such person a tenant. Greber v. Kleckner, 2 Barr, 289. Caswell v. Districh, 15 Wend. 379. Haywood v. Miller, 3 Hill, 90. An agreement for a lease will be construed to be a present demise, if no future formal lease be contemplated, and especially if possession be taken under it. Jenkins v. Eldridge, 3 Story, 325.SHARSWOOD. (6) As to time, and the mode of computing it in general, see Com. Dig. tit. Ann. and tit. Temps; Vin. Abr. tit. Time; Bac. Abr. Leases, E. 2 and 3; Burn, Ecc. L. Kalendar; Jacob. Dic. tit. Day, tit. Month, and tit. Year. increasing day in the leap year, together with the preceding day, shall be accounted for one day only. That of a month is more ambiguous: there Before 1752, the year commenced on the 25th March, and the Julian calendar was used, and much inaccuracy and inconvenience resulted, which occasioned the introduction of the new style by the 24 Geo. II. c. 23, which enacts that the 1st January shall be reckoned to be the first day of the year, and throws out eleven days in that year, from 2d September to the 14th, and in other respects regulates the future computation of time, with a saving of ancient customs, etc. See the statute set forth in Burn, Ecc. L. tit. Kalendar. It has been held that, in a lease or other instrument under seal, if the feast of Michaelmas, etc. be mentioned, it must be taken to mean New Michaelmas, and parol evidence to the contrary is not admissible, (11 East, 312;) but upon a parol agreement it is otherwise. 4 B. & A. 588. The year consists of three hundred and sixty-five days; there are six hours, within a few minutes, over in each year, which every fourth year make another day, viz., three hundred and sixty-six, and, being the 29th February, constitute the bissextile or leap year. Co. Litt. 135. 2 Roll. 521, 1. 35. Com. Dig. Ann. A. 24 Geo. II. c. 23, s. 2. Where a statute speaks of a year, it shall be computed by the whole twelve months, according to the calendar, and not by a lunar month, (Cro. Jac. 166;) but if a statute direct a prosecution to be within twelve months, it is too late to proceed after the expiration of twelve lunar months. Carth. 407. A twelvemonth, in the singular number, includes all the year; but twelve months shall be computed according to twenty-eight days for every month. 6 Co. 62. Half a year consists of one hundred and eighty-two days; for there shall be no regard to a part or a fraction of a day. Co. Litt. 135, b. Cro. Jac. 166. The time to collate within six months shall be reckoned half a year, or one hundred and eighty-two days, and not lunar months. Cro. Jac. 166. 6 Co. 61. So a quarter of a year consists but of ninety-one days; for the law does not regard the six hours afterwards. Co. Litt. 135, b. 2 Roll. 521, 1. 40. Com. Dig. Ann. A. But both half-years and quarters are usually divided according to certain feasts or holidays, rather than a precise division of days, as Lady-day, Midsummer-day, Michaelmasday, or Christmas, or Old Lady-day, (6th April,) or Old Michaelmas-day, (the 11th October.) In these cases, such division of the year by the parties is regarded by the law; and therefore, though half a year's notice to quit is necessary to determine a tenancy from year to year, yet a notice served on the 29th September to quit on 25th March, being half a year's notice according to the above division, is good, though there be less than one hundred and eighty-two-viz., one hundred and seventy-eight-days. 4 Esp. R. 5 and 198. 6 Esp. 53. Selw. N. P. Ejectment, V. Adams, 123. As to the construction of the term "a year," it was held that the 43 Geo. III. c. 84, which prohibits under a penalty a spiritual person from absenting himself from his benefice for more than a certain time in any one year, means a year from the time when the action is brought for the penalty. 2 M. & S. 534. A month is solar, or computed according to the calendar, which contains thirty or thirty-one days; or lunar, which consists of twenty-eight days. Co. Litt. 135, b. In temporal matters, it is usually construed to mean lunar; in ecclesiastical, solar or calendar. 1 Bla. R. 450. I M. & S. III. I Bingh. Rep. 307. In general, when a statute speaks of a month without adding "calendar, or other words showing a contrary intention, it shall be intended a lunar month of twenty-eight days. See cases, Com. Dig. Ann. B. 6 Term. Rep. 224. 3 East, 407. I Bingh. R. 307. And generally, in all matters temporal, the term "month" is understood to mean lunar; but in matters ecclesiastical, as nonresidence, it is deemed a calendar month, because in each of these matters a different mode of computation prevails; the term, therefore, is taken in that sense which is conformable to the subject-matter to which it is applied, (2 Roll. Abr. 521, 51. Hob. 179. Bla. R. 450. 1 M. & S. 117. 1 Bingh. R. 307. Com. Dig. Ann. R.;) and therefore, when a deed states calendar months, and in pleading the word calendar be omitted, it is not necessarily a variance. 3 Brod. & B. 186. III. I When a deed speaks of a month, it shall be intended a lunar month, unless it can be collected from the context that it was intended to be calendar. I M. & S. III. Com. Dig. Ann. B. Cro. Jac. 167. 4 Mod. 185. So in all other contracts. (4 Mod. 185. I Stra. 446,) unless it be proved that the general understanding in that department of trade is that bargains of that nature are according to calendar months. I Stra. 652. I M. & S. And the custom of trade, as in case of bills of exchange and promissory notes, has established that a month named in those contracts shall be deemed calendar. 3 Brod. & B. 187. In all legal proceedings, as in commitments, pleadings, etc., a month means four weeks. 3 Burr. 1455. I Bla. R. 450. Doug. 463, 446. When a calendar month's notice of action is required, the day on which it is served is included and reckoned one of the days; and therefore, if a notice be served on 28th April, it expires on 27th May, and the action may being, in common use, two ways of calculating months; either as lunar, consisting of twenty-eight days, the supposed revolution of the moon, thirteen of which make year: or, as calendar months of unequal lengths, according to the Julian division in our common almanacs, commencing at the calends of each month, whereof in a year there are only twelve. (7) A be commenced on 28th May. 3 T. R. 623. 2 Campb. 294. And when a statute requires the action against an officer of customs to be brought within three months, they mean lunar, though the same act requires a calendar month's notice of action. 1 Bingh. R. 307. A day is natural, which consists of twenty-four hours; or artificial, which contains the time from the rising of the sun to the setting. Co. Litt. 135, a. A day is usually intended of a natural day, as in an indictment for burglary we say, in the night of the same day. Co. Litt. 135, a. 2 Inst. 318. Sometimes days are calculated exclusively; as, where an act required ten clear days' notice of the intention to appeal, it was held that the ten days are to be taken exclusively both of the day of serving the notice and the day of holding the sessions. 3 B. & A. 581. A legal act done at any part of the day will in general relate to the first period of that day. II East, 498. The law generally rejects fractions of a day. 15 Ves. 257. Co. Litt. 135, b. 9 East, 154. 4 T. R. 660. II East, 496, 498. 3 Co. 36, a. But though the law does not in general allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish for the purposes of justice; and I do not see why the very hour may not be so too where it is necessary and can be done; for it is not like a mathematical point, which cannot be divided. Per lord Mansfield, 3 Burr. 1434. 9 East, 154. 3 Coke Rep. 36, a. Therefore fraction of a day was admitted in support of a commission of bankruptcy, by allowing evidence that the act of bankruptcy, though on the same day, was previous to issuing the commission. 8 Ves. 30. So where goods are seized under a fieri facias the same day that the party commits an act of bankruptcy, it is open to inquire at what time of the day the goods were seized and the act of bankruptcy was committed; and the validity of the execution depends on the actual priority. 4 Camp. 197. 2 B. & A. 586. An hour consists of sixty minutes. Com. Dig. Ann. C. By a misprint in 2 Inst. 318, it is stated to be forty minutes. There is a distinction in law as to the certainty of stating a month or day, and an hour. When a fact took place, "circa horam” [“About an hour''] is sufficient; but not so as to a day, which must be stated with precision, though it may be varied from in proof. 2 Inst. 318. It has been considered an established rule that, if a thing is to be done within such a time after such a fact, the day of the fact shall be taken inclusive. Hob. 139. Doug. 463. 3 T. R. 623. Com. Dig. Temps. A. 3 East, 407. And therefore where the statute 21 Jac. I. c. 19 s 2, enacts that a trader lying in prison two months after an arrest for debt shall be adjudged a bankrupt, that includes the day of the arrest. 3 East, 407. When a month's notice of action is necessary, it begins with the day on which the notice is given, (3 T. R. 623;) and if a robbery be committed on the 9th October, the action against the hundred must be brought in a year inclusive of that day. Hob. 139. But where it is limited within such a time after the date of a deed, etc., the day of the date of the deed shall be taken exclusive; as if a statute require the enrolment within a specified time after date of the instrument. Hob. 139. 2 Camp. 294, Cowp. 714. Thus, where a patent dated 10th May contains a proviso that a specification shall be enrolled within one calendar month next and immediately after the date thereof, and the specification was enrolled on the 10th June following, it was held that the month did not begin to run till the day after the date of the patent, and that the specification was in time. 2 Camp. 294. However, in a case in equity, the master of the rolls, after considering many of the decisions, said, upon the first part of this rule, that whatever dicta there may be that, when a thing is to be done after the doing of an act, the day of its happening must be included, it is clear the actual decision cannot be brought under any such general rule; and he inclined for excluding the first day in all cases, and ruled that where a security was to be given within six months after a testator's death, the day of the death was to be excluded. 15 Ves. Jr. 248.-CHITTY. (7) The calendar of the Romans had a very peculiar arrangement. They gave particular names to three days of the month. The first day was called the calends. In the four months of March, May, July, and October the 7th, and in the others the 5th, day was called the nones; and in the four former the 15th, in the rest the 13th, day was called the ides. The other days they distinguished in the following manner. They counted from the above-mentioned days backwards, observing to reckon also the one from which they began. Thus the 3d of March, according to the Roman reckoning, would be the 5th day before the nones, which in that month fall upon the 7th. The 8th of January, in which month the nones happen on the 5th and the ides on the 13th, was called the 6th before the ides of January. Finally, to express any of the days after the ides, they reckoned in a similar manner from the calends of the following month. American Encyc., Calendar. -SHARSWOOD. month in law is a lunar month, or twenty-eight days, unless otherwise expressed; (8) not only because it is always one uniform period, but because it falls naturally into a quarterly division by weeks. Therefore a lease for "twelve months" is only for forty-eight weeks; but if it be for "a twelvemonth" in the singular number, it is good for the whole year. (d) For herein the law recedes from its usual calculation, because the ambiguity between the two methods of computation ceases; it being generally understood that by the space of time called thus, in the singular number, a twelvemonth, is meant the whole year, consisting of one solar revolution. In the space of a day all the twenty-four hours are usually reckoned, the law generally rejecting all fractions of a day, in order to avoid disputes. (e) (9) Therefore, if I am bound to pay money on any certain day, I discharge the obligation if I pay it before twelve o'clock at night; after which the following day commences. (10) But to return to estates for years. These estates were originally granted to mere farmers or husbandmen, (11) who every year rendered some equivalent in money, provisions, or other rent, to the lessors or landlords; but, in order to encourage them to manure and cultivate the ground, they had a permanent interest granted them, not determinable at the will of the lord. And yet their possession was esteemed of so little consequence, that they were rather considered as the *142] bailiffs or servants of the lord, who were to receive and account for the profits at a settled price, than as having any property of their own. (12) And therefore they were not allowed to have a freehold estate: but their interest (such as it was) vested after their deaths in their executors, who were to make up the accounts of their testator with the lord, and his other creditors, and were entitled to the stock upon the farm. (13) The lessee's estate might also, by the ancient law, be at any time defeated by a common recovery suffered by the tenant of the freehold;(ƒ) which anni(d) 6 Rep. 61. (e) Co. Litt. 135. (f) Co. Litt. 46. (8) In the United States "month," unless expressly stated otherwise, usually means a calendar month. So in all mercantile contracts. In New York such meaning is imposed by statute. But the general signification in statutes is said by Bouvier to be lunar month. In some of the states it has been construed to mean, in the statutes, calendar month. See Bouvier's Law Dictionary, art. "Month." Story Bills of Exchange, 154, 397. Taylor Landlord and Tenant, 63. Story Promissory Notes, 215, 287 (7 ed. 1878). Redmond v. Glover, I Ga. Dudley, 107 (1832). Bartol v. Calvert, 21 Ala. 46 (1852). Loring v. Halling, 15 N. Y. Johnson, 120 (1818). State v. Jacobs, 2 Del. 549. Harrington (1835). Strong v. Birchard, 5 Conn. 360, Day (1824). New Orleans v. Costello, 14 La. 37 (1859). Binn's Justice, 10 ed. p. 872. (9)"It is true that for many purposes the law knows no division of a day; but, whenever it becomes important for the ends of justice, or in order to decide upon conflicting interests, the law will look into a fraction of a day as readily as into the fractions of any other unit of time. The rule is purely one of convenience, which must give way whenever the rights of parties require it." Smith v. Jefferson Co., 10 Colo. 17. Denver v. Pearce, 13 Colo. 390 (1889). Benson v. Adams, 69 Ind. 354 (1879). 2 Greenleaf's Cruise on Real Prop. 381. Angell on Limitations, 46 (6 ed. 1876). (10) I McKinney's Justice (4 ed.) 35. Harmon v. Comstock Horse & Cattle Co., 9 Mont. 250, Maddon (1810). Fox v. Abel, 2 Conn. 542 (1818). (11) Wood Landlord and Tenant, 107 (1 ed. 1884). Brautly Personal Property, 6. (12) " "In the United States agricultural leases are not very common. The farmer is usually proprietor of the acres which he cultivates; and rarely would one of that class of men be tempted to take a lease at all. But mechanics, men of mercantile and professional pursuits, and others who swarm into the cities, very commonly take lands on lease, either to occupy as homes, or for warehouses and stores, and for business purposes generally. It may be said that leases in this country average about five years, being frequently for a much shorter period, and rarely extending beyond ten years." Schouler's Pers. Property, 22 (2 ed. 1884). (13) Coombs v. Jordan, 3 Blands Chan. Md. 300 (1831). Goodeve's Mod. Law of R. P. (3 ed.) 150. I |