William Wait.

A treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 4) online

. (page 39 of 107)
Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 4) → online text (page 39 of 107)
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At common law, a married woman could not lease her lands without
the concurrence of her husband ; but he could lease them and take the
rents and profits so long as the marriage contract existed, and if he be-
came tenant by curtesy, so long as he lived. If the wife's property
rights were restored by the death of her husband or by divorce, that
would terminate the lease, unless she subsequently affirmed it. But
statutes greatly modifying these rules of the common law now prevail
generally in this country, and these usually allow a married woman to
control her own real estate without the concurrence of her husband.

A married woman may also hold under a lease, at least until her
husband dissents, and generally he will be liable for the rent. If a
feme sole takes a lease and afterward marries, her responsibility as lessee
will devolve on her husband. Canipbell v. Holloway, 7 Johns. 81 ;
Botch V. Miles, 2 Conn. 638.

A tenant for life can make a lease from year to year or for years, but
his death will absolutely terminate it, unless some power conferred
upon him by the owner in fee or the creator of the estate, or by statute,
enables him to give it a longer duration. Story v. Johnson, 2 Y. & C.
586. His lessee holding over will be a mere tenant at sufferance,
unless his lease is recognized and confirmed by the succeeding owner,
by some act amounting to a new demise or an estoppel. James d.
Amhray v. Jenkins, Bull (N. P.) 96 ; Boe d. Tucker v. Morse, J B. &
Ad. 365. If the remainderman or reversioner joins in the lease with
the life tenant, that is the lease of the one confirmed by the other.

A tenant from year to year or for years can underlet, unless restric-
ted by the terms of his lease.

One joint tenant or coparcener in real property may make a lease of


his undivided interest for life, for years, or at will, or several or all may
join and demise their shares or the entire estate. Cowper v. FleUher^
6 B. & S. 464 ; 34 L. J. (Q. B.) 187; 13 W. R. 732 ; 12 L. T. (N. S.)
420. Tenants in common may also lease their individual shares, or
may all join in a single lease. Any of such tenants may lease his share
to Ills co-tenant. Keay v. Goodwin^ 16 Mass. 1.

A mortgagor can lease the mortgaged premises ; but at common law
the mortgagee was not bound by a lease granted subsequent to his mort-
gage, but might eject the tenant as well as the mortgagor upon default,
although by a lease prior to his mortgage, he might recover the rent
from the tenant, unless it had been paid to the mortgagor before notice
of his claim. Rawson v. Eicke^ 7 Ad. & El. 451 ; Mossy. GalUmore,
1 Doug. 279 ; Bahcock v. Kennedy, 1 Vt. 457 ; Coker v. Fearsall, 6
Ala. 542 ; Hutchinson v. Dearing, 20 id. 798. Under modern statutes
prohibiting actions of ejectment by mortgagees, and protecting mort-
gagors in their possession until the expiration of the time given for
redemption, it would seem that mortgagors or owners of the equity of
redemption should have power to lease and be entitled to the rents and
profits until the mortgagees or purchasers become entitled to posses-
sion ; and it has been expressly so decided in New York and Massa-
chusetts {Clasonx. Corley, 5 Sandf. 447; Mayo v. Fletcher\ 14 Pick.
625 ; Gibson v. Farley, 16 Mass. 280) ; and in Michigan it is held that,
until foreclosure, the mortgagee cannot receive the attornment of the
mortgagor's tenant. Hogsett v. Ellis, 17 Mich. 351.

A mortgagee, not being the real owner of the estate, has no power
before foreclosure to lease the property so as to bind the mortgagor
when he comes to redeem, except in a case of absolute necessity and to
avoid an apparent loss. Lamed v. Clarke, 8 Gush. 29. Redemption
by the mortgagor usually terminates the lease. Holt v. Rees, 46 111.
181. But both may join in a lease, and thus render it effectual. In
such a case, the lessee's covenants should be with the mortgagee, so as
to run with the land.

The entry of a judgment against a land owner does not affect his right
to grant a lease of his land. Doe d. Putland v. Hilder, 2 B. & Aid. 782.
A corporation may grant or take a lease, unless it is specially restric-
ted by law, Such lease should be in the corporate name, though an
immaterial variance will not avoid it. At the present day the corjjor-
ate seal is not usually held necessary ; but the lease must be executed
by officers or agents who are duly authorized. A corporation may also
bind itself by entering upon and enjoying premises in pursuance of a
lease, purporting to be by its authority, and paying rent. Lo7ig Isl.
R. R. V. Marguand, 6 N; Y. Leg. Obs. 160.


Trustees holding the legal title to land can grant leases, limited by
the quantity of estate they possess. Their authority is usually joint,
and must be exercised by them jointly. Sinclair v. JiLckson^ 8 Cow.
548. A lease granted by trustees, without the concurrence of the bene-
ficiary, is subject to the control of a court of equity, if the lessee had
notice of the trust. As the beneficiary cannot giye a valid lease with-
out the concurrence of the trustees, it is advisable that both or all
should join in a lease. Blokes. Foster, 8 Term, 487 ; Malpas v. AcJc-
land, 3 Russ. 273. In order that the covenants may run with the land,
they should be to the trustee, but the rent may be reserved generally.
Webh V. Russell, 3 Term, 393. The time for which a trustee may
grant a lease is limited by the circumstances of the particular case, and
not by the period of the trust estate ; but the trustee or his lessee must
be prepared to show its reasonableness, if called in question. Atty.-
Gen. V. Owen, 10 Yes. 555 ; Greason v. Keteltas, 17 N. Y. (3 Smith)
491 ; Naylor v. Arnitt, 1 Euss. & Mylne, 501.

An executor can demise lands devolved upon him by the will of his
testator, even before probate ; and, if there be several executors, either
of them may do so. Simpson y. Gutteridge, 1 Mad. 616. At com-
mon law, an executrix, if a married woman, could not act without the
concurrence of her husband, but he might act in her place, without her

An administrator can lease only when specially authorized to do so.
Bank of Hamilton v. Dudley, 2 Peters, 492 ; Hoed. Bendallx. Sum-
inerset, 2 W. Bl. 694. lie cannot make a valid lease of premises
which were specially bequeathed, without the concurrence of the devisee.
See Yol. 2, tit. Executor's and Administrators.

Receivers appointed by order of the court may be specially author-
ized to grant leases.

An agent may execute a lease for his principal, provided he has proper
authority and pursues it strictly, acting in the name of his principal,
and for his benefit. Ilis authority may be verbal, unless required by
law to be in writing ; and a subsequent ratification or adoption of his
acts will supply the want of j^revious authority. As a general rule he
cannot take a lease for himself of proj)erty which he is employed to let.

Aliens were formerly subjected to disabilities in respect to acquiring
real property, but they have been to a great extent removed by statute
both in England and in this country. Whether aliens can now grant
leases depends upon the statutes on that subject, which should there-
fore be examined.




Section 1. In general. A lease for life must be under seal, but one
for years or a less term may be in writing not under seal, or by verbal
agreement only, except where otherwise prescribed by statute. If in-
tended to include the usual covenants, it must be sealed,

A lease must be supported by some valuable consideration. This
may be the usual one, of a rent reserved, or it may be natural affection,
money, animals, produce or services, such as would support any other
contract. "Where a rent is to be paid, but its amount is not fixed, the
law fixes it at the reasonable worth of the use of the premises. Fall-
wig V. Schench, 3 Hill, 344 ; State v. Page, 1 Spears (S. C), 408 ;
Scrantom v. Booth, 29 Barb. 171.

The date of a lease is not a matter of substance, and an omission of
or mistake in the date does not vitiate the lease. If it has no date, or
an impossible one, and no time is fixed for its commencement, it will
commence from delivery. A reference to the date in the body of a
lease which has a sensible date is to that date, and not to its delivery ;
but the date is not conclusive as to the delivery, for either party may
show that delivery took place on a different day. Church v. Gilma/n,,
15 Wend. 656.

A lease should contain the names of the parties. If executed by
an agent of the lessor it should run in the name of the principal, and
to the intended lessee. If persons who describe themselves in the
caption as trustees, or agents, execute in their individual names, and
covenant as such, they bind themselves and not their principal. Stohie
V. Dills, 62 111. 432 ; Kiersted v. Orange, etc., B. R. Co., 1 Hun,- 151 ;
S. C, 3 N. T. Sup. (T. & C.) 662. A sealed lease will be void if the
name of the lessee be not filled in before delivery. Jackson v. Titxus,
2 Johns. 430. The omission or insertion of the middle name of either
party is immaterial ; and a misspelling of or variance in the name of a
corporation, not making it materially different from the true name,
will not affect its validity. McCarthy v. Nolle, 5 N. Y. Leg. Obs. 380.

No particular form of words is necessary to constitute a lease ; but
whatever terms express the intention of the one party to divest him-
self temporarily of the possession of his property, and of the other to
receive and hold it, will be sufficient. Uallett v. Wylie,. 3 Johns. 47 ;
Thornton v. Payne, 5 id. 74 ; Mavericky. Lewis, 3 McCord (S.O.), 211.
The terms usually employed are " demise, grant, lease and to farm
YoL. lY.— 29


let ;" but a covenant to stand seized to the use of the covenantee, or
a hceuse to enter and enjoy, vrill operate as a lease {Right d. Bassett v.
Thomas^ 3 Burr. 1446 ; Ricjht d. Green v. Proctor^ 4 id. 2209); and so
will an agreement between vendor and vendee, by separate instru-
ments, that a person named shall be a tenant to the latter {Doe d.
Jacklin v. Cartright, 4 East, 29) ; and a recital in a will that the
testator has leased, wiU operate as a lease by way of estoppel. Denn
V. Cornell^ 3 Johns. Cas. 174.

A lease must describe the premises demised with reasonable certainty,
otherwise it is void. Dingman v. Kelly, 7 Ind. 717 ; PieTce v.
2finturn, 1 Cal. 470. Where, in the description, numerous particu-
lars are mentioned, all of which do not concm*, the intent is to be
ascertained in the same manner and by the same kind of evidence as
in the case of other contracts. If the premises are bounded on a
river, without specification of the exact line, the lease is presumed to
go to the center and carry half of the bed and soil of the river.
Dwyer v. Rich, 6 Ir. C. L. 144. Where a lease described the prem-
ises as those which a person " now occupies," it was held to carrj^ only
so much as was actually occupied by him, and a building or a gateway
connected with the premises, but not occupied by him, was held to be
excluded. Magee v. Lavell, 9 L. E. C. P. 107, 8 Eng. Eep. 423 ; 43
L. J. C. P. 131 ; 22 W. R. 334 ; Dym v. NutUy, 14 C. B. 122; 2
C. L. R. 81.

Ordinarily, the grant of a thing will pass all such things as are directly
incident to it and necessary to its enjoyment, unless they are expressly
reserved. Riddle v. Littlefield, 53 N. II. 503 ; 16 Am. Rep. 388.
A lease of a liouse carries the land under its eaves and projections,
also its garden ; of a house and barn, tJie land necessary to their com-
plete enjoyment ; of a farm, all the buildings upon it ; and of an
interior parcel of land, a right of way to it over the grantor's other
lands. Sherman v. Williams, 113 Mass. 481 ; 18 Am. Rep. 522 ;
Hay V. Cumherlamd, 25 Barb. 594. But an easement will pass only
where it is necessary, and will cease M'ith the necessity. Kooystra v.
Lucas, 1 D. &R. 506 ; 5 B. & Aid. 830 ; SJcnU v. Glenister, 11 W. R.
368 ; 16 C. B.'(N. S.) 81 ; 33 L. J. C. P. 185.

Recitals in a lease sometimes operate by way of estoppel ; but an
erroneous recital is generally lield immaterial, unless it shows that the
lessor had no interest in the subject-matter of the demise. Hermitage
V. Tomkins, 1 Ld. Raym. 729 ; Jackson v. StrecUr, 5 Cow. 529 ; Foot
V. Berkley, 1 Vent. 33.

A reservation of rent is not essential, nor, if inserted, need it be in
any particular words or form. The usual terms are " yielding and pay-


ing," or " provided the lessee shall pay " a sum specified, or " in con-
sideration of the rent aforementioned." If the reservation is in f^eneral
terms without saying to whom, the law will apply it according to the
nature of the lessor's interest. If it be special, it should be to the persoji
from whom the lessee derives his estate, or to the legal owner, and not
to a stranger. Gilhertson, v. Richards, -1 H. & N. 277 ; Froni'm v.
Small, Stra. 705. But a reservation of rent to the lessor's heirs has
been held good, where the lease was not to commence until after his
own death. Oates v. Friilie, 2 Rol. Abr. 447. Courts formerly gave
different effects to leases of a freehold, where the reservation of rent
was to the lessor and his heirs ; — to him and his execvitors ; — to him and
his assigns ; or to him, his executors, administrators .or assigns; but,
probably in all such cases, especially where the intent appears that rent
shall be paid dinging the whole term, the rent will now be held to fol-
low the reversion. Taylor's Land & Ten., § 156.

An exception may be inserted in a lease restraining, explaining or
qualifying its , general terms. The office of an exception is to sever
some existing component part of the thing demised, which would
otherwise pass. It will be void if it does not express the thing excepted
with reasonable certainty {Dorrell v. Collins, Cro. Eliz. 6) ; or if
it excepts that which is expressly granted by the lease, or that as to
which the lessor had no right or responsibility. The thing excepted mil
include every thing dependent on it, and necessary to its enjoyment,
such as a right of entry to enjoy or remove it, and the like. Cardigan
V. Armitage, 2 B. & C. 207. A saving out of it will defeat the excep-
tion to that extent. Leigh v. Shaw, Cro. Eliz. 372.

A reservation is properly the retaining of some right or profit to
arise from the subject of the demise, which had previously no separate
existence. An express reservation is necessary whenever a lessor
wishes to retain a right of way, or any other right or control over the
demised property. Bi'unton v. Hall, 1 Q. B. 792 ; 1 G. & D. 207 ;
6 Jur. 340.

A seal, in any case where a lease is required by law to be under seal,
must be afiixed in the manner prescribed by the law of the place which
is to govern the particular lease ; whether that be an impression upon
wax or wafer, or upon the paper on which the instrument is wTitten,
or a mere scroll. It is usual, where several persons execute the same
instrument, to aflix a separate seal for each, but that is not essential, as
the seal of one may be deemed adopted by the other or others. See
ante, Yol. 2, 494, tit. Deeds.

IVhen in wi'iting, and not required to be under seal, the mere signa-
tures of the proper parties is sufficient. The place of signature is not


usually deemed material, but a statute requiring certain contracts to be
" subscribed," has been held to require the name to be actually put at
the bottom or foot of the contract. Dofois v. Shields^ 26 "Wend. 341, 494.
James v. Patten, 6 N. Y. (2 Seld.) 9, 16. A lease which contains
covenants by both parties should be executed by both. Thompson v.
Leach, 2 Yent. 198 ; 3 Mod. 296. They may execute as many copies
or counterparts as there are parties, each retaining one.

"Witnesses to leases were not required by the common law, but are
made necessary by statute in some of the American States. The same
may be said as fro acknowledgment and recording, for the purpose of
making a lease notice to subsequent purchasers or incumbrancers. The
omission of tlie Jatter formalities will not affect the validity of a lease
as between the parties.

Delivery is essential to give effect to a lease and vest the interest in-
tended to be conveyed. This must be to the lessee himseK or to some
one authorized by him to receive it ; but if placed on record for his
benefit, his subsequent assent to it renders the delivery valid. Send-
ing by mail to him or to some one for his use, is also sufficient. If
delivered in escrow, it will, on its final delivery after perfonnance of
the condition, take effect from the time of the first delivery. See Yol.
2, tit. Deeds.

§ 2. Construction of a lease. In this connection only general
principles can be stated. A lease is to be construed according to the
intention of the parties, and that is to be ascertained, if possible, from
the terms of the instrument itself ; or, if there be several instruments,
from their terms as construed together. Weah d. Taylor v. Escott, 9
Price, 595. "When clearly ascertained, that intent must prevail, even
though it be in opposition to the strict letter of the contract. Hatha-
way V. Power, 6 Hill, 453 ; Tracy v. Albany Exch. Co., 7 N. Y. (3
Seld.) 472. A promise will be construed as the promisor knew that
the promisee understood it. Barlow v. Scott, 24 N. Y. (10 Smith)
40. If a word, which is material in order to give other words their
proper effect, appears to have been omitted by mistake, it will be
deemed inserted. Wight v. Dichson, 1 Dow, 141. "Words which are
inapplicable or repugnant to the tenancy evidently intended to be
created, are to be rejected. Strickland v. Maxwell, 2 C. & M. 539.
In a lease by indenture, words are not to be construed most strongly
against the one party, or most beneficially for the other, but are to be
construed fairly and as those of the party to whom they properly be-
long. Bechiiith V. Ilovuird, 6 Tl. I. 1. If there is any reasona])le
doubt as to the meaning of an exception, it is to be construed favorably
for the lessee.


As to boundaries and descriptions of premises, tlie same rules are to
be applied as in the case of deeds and otlier sealed instruments. See
Vol. 2, tit. Deeds.

Ordinarily, a lease will commence on the day of its date, if no
other time be fixed ; but, if it has no date, or an impossible one, it
will commence from delivery. Keyes v. Dearborn^ 12 N". H. 52 ;
T'i'ustees, etc. v. Robinson, Wright (Ohio), 436. When time is to be
computed from or aftei^ a certain day, that day is usually excluded.
Bigelow v. Willson, 1 Pick. 485 ; Arnold v. United States, 9 Cranch,
104. The application of this rule to leases is not uniform, but the in-
clusion or exclusion of the day mentioned seems to be governed by
the presumed intention of the parties, or the circumstances of the par-
ticular case. White v. McAolson, 4 Scott (N. il.),-707 ; 4 M. & G.
95 ; Fugh v. Duke of Leeds, Cowp. Y14 ; WiUox v. Wood, 9 Wend.
346 ; Blake v. Crowninshield, 9 N. II. 304.

At common law, a lease limited by months was construed as mean-
ing lunar months (2 Bl. Com. 141 ; Parsons v. Chamberlin, 4 Wend.
512) ; but by statute in some of the American States, and by usage in
others, months are held to mean calendar months.

A lease for one year, and so on for two or three years, as the par-
ties shall agree, does not become a lease for two or three years without
a subsequent agreement, but after it has commenced running on the
second year it is not determinable until that year is ended. Harris
V. Evans, 1 Wils. 262. But one which is expressed to be " not for
one year only, but from year to year," creates a tenancy for two years
at least; and so does one for years generally without saying how many.
If for an optional number of years, without stating at whose option,
it is at the option of the lessee. Dann v. Spurrier, 3 B. & P. 399,
442 ; 7 Ves. 231 ; Price v. Dyer, 17 Yes; 363 ; Webb v. Dixon, 9
East, 16.

A power to revoke a. lease at will gives the lessor power to revoke
it at any time ; but a proviso that the term shall cease on the failure
of the lessee to pay rent, merely gives the lessor power to determme
it on such failure. The lessee has no such option. Ex parte Miller,
2 Hill, 418; Eeid v. Parsons, 2 Chit. 247.

A lease for a fixed term, but subject to be defeated by the happening
of a particular event, is ended by the happening of that event. Lud-
ford V. Barber, 1 Term, 86. An estate for life terminates at the death
of him on whose life it depends. One for the lives of A. am,d B. ter
minates on the death of either, while one for the life of A. or B.
continues so long as either of them lives. Lord Vauxs case, Cro. Bliz.


269 ; Elliott v. Turner, 2 C. B. 461. But n grant to two generally,
for their lives, is sufficient to carry a right of survivorship.

§ 3. Talidity of a lease. The requisites to the vahdity of a lease
are, briefly, that it be made by a person having sufficient title or au-
thority ; that it be for a term properly defined ; and that it be in com-
pliance with and do not contravene any provision of law on the subject.
One who has no estate or interest in lands caimot give a lease thereof
which will bind the true owner. Wilklow v. Zane, 37 Barb. 244. Nor
can any one whose interest is limited in time, give a vahd lease to ex-
tend beyond that limit*. Rohie v. Smith, 21 Me. 114. But, it seems,
a lease granted under a power, for more years than is authorized by
such power, although void at law, will be held good in equity to the
extent of the power. Boe d. Brune v. Prideaux, 10 East, 158 ; Laio
V. Remjpstead, 10 Conn. 23 ; Martin v. Sterling, 1 Eoot, 210. And a
lease by a tenant for life or years, extending beyond his term, will gen-
erally pass what interest he has.

A lease for the life of one not in existence does not sufficiently
define the term, and is void ; but one for the lives of several persons
named is valid for the lives of such of them as are then li\dng. Doe d.
Pe7rtherton v. Edwards, 1 M. & "W. 553.

The question of the validity of leases arises most frequently under
that provision of the statute of frauds requiring all conveyances of lands
or of any interest therein to be in writing. Under these statutes it has
been held that a grant of the possession of land for any pennanent
use, such as one to enter upon land at all times, or to erect and keep in
repair a building, a canal, an embankment or the like, must be in writ-
ing ; but a mere license to enter and do certain acts of a temporary
character need not be, as it confers no interest in the land. CooJc v.
Stearns, 11 Mass. 533; Miller v. Auburn cfe Sy. R. Co., 6 Hill, 61 ;
Mumford v. Whitne]/, 15 Wend. 380. Even a permission to use a
church edifice for the purposes of worship, when not occupied hy the
owners, conveys such an interest, and must be in writing. Brumfield
V. Carson, 33 Ind. 94 ; 5 Am. Rep. 184. Where the lease itself is
re<[uired to be in writing, a subsequent verbal agreement to add a
restrictive clause is void {SnelUng v. Thomas, 17 L. R. Eq. .303 ; 7
Eng. Eep. 820 ; 43 L. J. Ch. 506) ; but one to do some collateral
thing relating to the demised premises is valid. MoAin v. Mann, 43
L. J. C. P. 241 ; 30 L. T. (N. S.) 526 ; Angell v. Dulce, 44 L. J. Q.
B. 78 ; 10 L. E. Q. B. 174 ; 12 Eng. Eep. 236 ; 23 W. E. 307.

Leases for short terms, limited in England and in some of the Amer-
icaik States to three years, and in other of those States to one year from
the making thereof, arc expressly excepted from the operation of the


statute of frauds. A verbal lease for the fall term allowed by statute,
to be valid, must commence immediately, otherwise it will extend be-
yond that limit. Parker v, Ilollis, 50 Ala. 411 ; WJceelerY. Frank-
ejithal, 78 111. 124. Such a lease for more than the statutory limit,
although void as a lease, will create a tenancy from year to year, and
one who takes and holds possession under it will be bound by its pro-
visions. Doe d. Rifjge v. Bell^ 5 Term, 471 ; Richardson v. Giford,
3 N. & M. 325 ; 1 A. & E. 52 ; Beale v. Sanders, 3 Bing. N. C. 850 ;
5 Scott, 58 ; 1 Jur. 1083 ; Bradley v. CoveF, 4 Cow. 350. A parol
permission to hold over from year to year is valid, when followed l)v
the receipt of rent ; but if without consideration, it is revocable.

Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 4) → online text (page 39 of 107)