lord, his obligation to pay rent ceases; (a) but no destruction of the premises by fire, flood, or other inevitable accident, will discharge the obligation, unless the lease contains a provision to that effect. (b) Where the lease provides for a forfeiture in case of nonpayment of the rent when due, a tender or readiness to pay on the premises at any time, before sunset on the day stipulated, will be sufficient. The tenant is not obliged to seek the landlord away from the premises unless he agrees so to do, but he may make such tender, and it will be good. When leased property becomes divided, either by the act of the landlord or by operation of law, if the parties cannot agree upon an apportionment of rent, it must be made by a jury.

§ 133. Estates at Will. (c) An estate at will was originally where the tenant occupied at the mere pleasure of him who had the next estate; and who could terminate the tenancy at any moment without previous notice. Such a connection between landlord and tenant harmonized perfectly with the arbitrary notions of a landed aristocracy. It had but one redeeming quality, and that was with regard to emblements. The tenant at will, having no knowledge when he might be obliged to quit the premises, was entitled to emblements on the same ground as the representatives of a tenant for life. But as notions of liberty began to gain ground, the slavish character of this tenancy became gradually changed. It was first settled that an estate at will was equally at the will of both parties; and that neither could terminate the tenancy without fair notice to the other. (d) The next improvement was to determine, that, unless there was an express agreement to hold at will, all tenancies for no stipulated term, should be construed as periodical tenancies from year to year, or some shorter period, according to the facts of the case. The establishment of this wholesome doctrine, is a virtual abolition of estates at will; and it has been fully recognized in this State. But since the creation of this periodical tenancy, there has been much diversity of opinion in different places, in regard to the notice to quit. In England, it is half a year; in some of the States, the same; (e) in others, a reasonable

(a) Shumway v. Collins, 6 Gray, 227; Leishman v. White, 1 Allen, 489. But see Fuller v. Raby, 10 Gray, 285.

(b) Peterson v. Edmondson, 5 Harrington, 378; Graham v. Perry, 29 Mo. 245. But where premises are destroyed by fire before the commencement of the term, though after the execution of the lease, the lessee will be discharged. Wood v. Hubbell, 10 N. Y. 479. But in Ohio, by act of March 30, 1868, the lessee of a building destroyed or rendered unfit for occupancy by the elements or other cause, without his fault, is not liable for rent afterwards, unless the lease expressly stipulates otherwise, if he surrender the premises.

(c) See 2 Black. Com. ch. ix.; 4 Kent, Com. lec. 56; 1 Cruise's Dig. 269; Moore v. Beaseley, 3 Ohio, 294; Coffin v. Lunt, 2 Pick. 70, and note to that case; Spencer v. Marckel, 2 Ohio, 265.

(d) The death of the lessor terminates a tenancy at will, and the lessee becomes a tenant at sufferance only. Reed v. Reed, 48 Maine, 388; Esty v. Baker, 50 Maine, 325.

(e) Baker v. Adams, 5 Cush. 99. In Massachusetts, it is three months in ordinary cases by statute. The notice must terminate at one of the regular intervals of pay. Prescott v. Elm, 7 Cush. 346.

ment.

H

time; but here, nothing is settled. We have two ways of dispossessing a refractory tenant; namely, by the action of ejectment, and of forcible detainer. In ejectment, our statute requires ten days' notice before the commencement of the term to which the appearance is to be made; and in forcible detainer, three days' notice before the commencement of the suit; but this is a different thing from notice to quit. Whatever this be, it must be so given as to expire before or at the time the period expires; for if the tenant has been allowed to enter upon a new period without notice, he cannot be dispossessed until the end of this period. And the chief criterion to determine whether a tenancy is from year to year, from quarter to quarter, or from month to month, is the pay-day of rent. On account of the uncertainty whether his term will be renewed, a tenant from term to term is entitled to emblements as much as if he was strictly a tenant at will. In this respect, and in the right to notice to quit, he differs from a tenant for years. In other respects, his powers, privileges, and liabilities. are nearly the same.

§ 131. Estates at Sufferance. (a) An estate at sufferance is where one comes rightfully into possession of land, but holds over after his interest is determined. A tenant at sufferance differs from a mere intruder in this, that he is not a trespasser. But he has no interest capable of being transferred or defended; and it is said that, independently of statutory provision, he is not liable to pay rent. We have no statute on the subject; but the doctrine is so absurd on the face of it, that I presume our courts would not recognize it. The tenant could not indeed be sued for rent technically speaking, under the lease, because it has expired; but I have no doubt he might be liable in an action for use and occupation. At common law, this tenant is not entitled to notice to quit. But here, this point is of very little importance; because, as we have seen, there must be ten or three days' notice, as the case may be, before he can be dispossessed by action. The landlord may indeed enter at any time, without notice, and will not thereby become a trespasser; and if he can turn the tenant out peaceably, he will thus acquire possession immediately. But if the tenant refuses to go out, he cannot use force upon his person; for though we have no statute making forcible entry an indictable offence, yet in the case supposed, the landlord could not justify an assault and battery. Unless, therefore, he can expel the tenant at sufferance peaceably, he must give the required notice, and then bring his action. This tenant therefore has an undue advantage over his landlord. In England, and in many of the States, a penalty of double rent is imposed by statute for holding over; while here, there is not only no penalty, but in our course of proceeding, an obstinate tenant cannot be expelled under perhaps several months. This is an evil which calls loudly for remedy.

It will be seen that the foregoing observations have related to

(a) 2 Black. Com. ch. ix. ; 4 Kent, Com. lec. 56; 1 Cruise's Dig. 269.

realty only. In fact no such distinctions prevail with respect to personalty, on account of its transitory nature. There may indeed be a qualified ownership; that is, a man may have possession of an article of personalty, and a right to use it for an indefinite or definite period, without being the absolute owner of it. But there can be no such distinction as a fee-simple, or freehold, with respect to it. Technically speaking, personalty is not hereditary. On the death of the owner, it passes according to the law of distribution, to the personal representatives, but does not descend to the heirs like the fee of land. But all this will be explained hereafter. It is sufficient here to remember that the distinction of estates with respect to duration belongs exclusively to realty.

LECTURE XXII. .

ESTATES IN REVERSION AND REMAINDER. (a)

§ 135. Estates in Reversion. (b) Estates are divided, with respect to their commencement, into estates in possession, in reversion, and in remainder. Of estates in possession, there is nothing to be said. All the remarks hitherto made, apply to estates in the actual possession of the owner. This is their most natural and obvious situation. But the first three of the foregoing estates, namely, estates in fee, for life, and for years, while they are in the present occupation of one person, may belong in expectancy, either in reversion or remainder, to another. To these accordingly we turn our attention. An estate in reversion may be defined to be, the residue of an estate remaining in the grantor or his heirs, to come to his or their possession, after the determination of some particular estate granted away. It grows out of this legal maxim with regard to property, that whatever interest a man has, and does not dispose of, remains in him and his representatives. A reversion may be in fee, for life, or for years. Thus, if I have an estate in fee, and grant you any smaller estate, the reversion in fee still remains in me. If I have an estate for life, and grant you any smaller estate, the reversion for life still continues in me; and if I have an estate for years, and grant you an estate for a less number of years, the reversion for years still continues in me. In this way, there may be any number of reversions existing in the same estate, in the same manner as a unit may be divided into any number of parts; and all these estates in reversion, added to the estate in possession, make together only one fee-simple estate

(a) See 2 Black. Com. ch. 11; 4 Kent, Com. lec. 59, 60; 1 Swift's Dig. b. 2, ch. 9; 2 Cruise's Dig. title Remainder and Reversion; Fearne, on Remainders.

(b) 2 Black. Com. 175; 4 Kent, Com. 353; 2 Cruise's Dig. 154; 1 Hilliard's Dig.

in possession. An estate in reversion is considered as a present interest, though it can only take effect in future; and as such, is transferable and descendible in the same manner as an estate in possession. Formerly, the usual incidents to a reversion were fealty and rent. But fealty does not exist here; and rent is not inseparable. I may have a reversion with or without rent. If I lease you an estate for years, I have a reversion with rent. If I sell you a life-estate outright, I have a reversion without rent. In like manner I may separate rent from the reversion, when originally connected; for I may grant the rent without the reversion, or the reversion without the rent. The latter, however, can only be done by express words. If I grant the reversion simply, the rent passes as an incident. But if I grant the rent simply, the reversion does not pass. Estates in reversion, however, being always created by operation of law, and never by positive grant, are so simple and so easily comprehended, that no further remarks

are necessary.

§ 136. Estates in Remainder. (a) An estate in remainder may be defined to be, an estate limited by the grantor to take effect and be enjoyed by the grantee, after another previous estate shall be terminated. For example, if I grant land to you for life, and then to your brother and his heirs, the latter estate is a remainder. The estate which precedes the remainder is called a particular estate. Remainders differ from reversions in this, that they are always created by the express act of the parties, while reversions result from the operation of law; and also in this that remainders are never limited to the grantor, while reversions are always reserved to him or his heirs. In other words, a remainder is something granted; a reversion is something reserved. Estates in remainder form by far the most abstruse and intricate subject, connected with the law of realty. They had their origin in the English fondness for family settlements. It is not uncommon to find in such settlements eight or ten remainders limited one after the other, in order to prevent the possibility of the estate passing out of the family of the grantor. Fortunately, the spirit of our institutions is utterly opposed to these entangled and cumbrous arrangements; and accordingly our books contain few discussions on the subject. In this State, so far as I know, there has not been a single case; not from any legal prohibition, but from the general disposition of our citizens to keep property as little trammelled as possible. On this account, I shall attempt no more than to give a very general statement of the leading properties belonging to remainders.

(a) 2 Black Com. 163; 2 Cruise's Dig. 258; 4 Kent, Com. lec. 59, 60; 1 Hilliard's Dig. ch. 41-51, pp. 362-418; Campbell v. Watson, 8 Olio, 498. Cross-remainders are not favored. As between more than two, they are never implied, but must arise from the most explicit expressions in the deed or will. Therefore, a devise "to my four sons or the survivors of them, and their heirs and assigns, to be equally divided among them when the youngest becomes of age," was so construed that each took a fee. Lawrence v. McArter, 10 Ohio, 37.

To whom Remainders may be Limited. (a) 1. In this State, we have a statutory restriction, "that no estate shall be given or granted by deed or will to any persons but such as are in being, or the immediate issue or descendants of such as are in being, at the time of making such deed or will." There is some ambiguity in these words. Had the statute said only "immediate issue," we should not hesitate to say that estates could only be limited to persons in being or their children. But the addition of the word "descendants," raises a doubt. It must either mean nothing at all, or it must be intended to include lineal descendants more remote than children. We have had no construction of this statute; but from the strong aversion the law manifests to perpetuities, and from the existence of the common-law doctrine, when this act was passed, that the contingencies upon which estates were limited, must happen within a life or lives in being, and twenty-one years afterwards, I should presume that our legislature intended to restrict the limitation of estates to persons in being and their children. 2. Another restriction grows out of the rule in Shelley's case, (b) which may be thus stated: Whenever a person, either by deed or will, takes an estate for life, and in the same instrument, there is a remainder limited, either immediately or otherwise, to his heirs in fee, that person takes the whole estate in fee. This rule is said to have been established as early as 1325. But the case from which the rule took its name is one reported by Coke. The existence of this rule is fully recognized in this State, with respect to conveyances by deed; and it was applied to conveyances by will until 1840, when the legislature abrogated it, with respect to wills, by providing that when lands are devised to any person for life, and after his death to his heirs in fee, the devise shall be construed to create an estate for life in the devisee, with a remainder in feesimple to his heirs. In other words, the intention of the testator shall be literally carried into effect. And it is to be hoped that the legislature will abrogate it with respect to deeds; for though professedly a rule of construction, adopted to effectuate the intention of the parties, its obvious tendency is to frustrate such intention by converting what was meant for a life estate into a fee-simple. Besides, there is scarcely a principle of our law, which has been the subject of so much controversy. But I am at present concerned

(a) 4 Kent, Com. 264.

(b) 1 Coke's Rep. 104; 4 Kent, Com. 214; Preston, on Estates, 263; 4 Cruise's Dig. 369; M'Feely v. Moore, 5 Ohio, 464; 2 Black. Com. 242; 2 Hilliard's Dig. 22; King . Beck, 12 Ohio, 390; Williamson v. Williamson, 18 B. Monr. 329; Hampton v. Rather, 30 Miss. (Cush.) 193. Allen v. Markle, 35 Penn. State. 117; Kennedy v. Kennedy, 5 Dutcher, 185; Thurston v. Thurston, 6 R. I. 296; Simpers v. Simpers, 15 Md. 160; Williams v. Houston, 4 Jones, Eq. 277; Lloyd v. Rambo, 35 Ala. 709; Dennett v. Dennett, 43 N. H. 499; English v. Beekle, 32 Mo. 186; Norris v. Hensley, 27 Cal. 439. In M'Feely v. Moore, 5 Ohio, 464, a devise to a husband and wife "to have the use during their respective lives, then to descend to their heirs, to whom I bequeath the same, and to their heirs and assigns forever," was held to be within the rule in Shelley's case as part of our common law. But by the 53d section of our Wills Act of 1852, this rule is abolished with respect to wills. And see Armstrong v. Zane, 12 Ohio, 287; King v. Beck, 15 Ohio, 559.