a number of years or less than a year, a half year, a month, or even a few days. The principal distinguishing feature between a tenancy for years, and a tenancy at will, or other tenancy, is, that it be for a time certain, prefixed, by agreement either expressed or implied.

Tenancy at sufferance is a mere wrongful holding over of the land by one who came rightfully into possession. It cannot arise by contract, either express or implied, for, if the owner of the land were to assent to it, it would become a tenancy at will by means of that very assent.

A tenancy at will takes place where the demise or lease is for no certain term, but is to continue during the joint will of both parties. It may arise by implication, as, where a party agrees to buy a piece of land, and enters upon it before his deed is exe cuted.' Its more important incident, however, is its capability of being extended into a tenancy from year to year, which is the condition of most of the tenancies of the present day, where there is no written lease, or where the term under the written lease has expired, and the tenant still continues to hold the premises with concurrence of the landlord. This tenancy derives its name from the circumstance, that in the more important leases, the rent is prescribed for the year; and where the written lease has expired, or no written lease is made, and the tenant continues to occupy without any new lease, but with assent of the landlord, he is considered as holding for another year. But the same designation, and the same rules of law apply to the tenancy, where the leasing is by the month or week, or other period.

To terminate such tenancy, due notice must be given. Formerly, in case of a tenancy at will, notice was not necessary. The later and more liberal rule seems to be, that tenants at will are regarded as holding from year to year, so far as to be entitled to notice to quit before they can be ejected by process

of law.'

This notice must comply strictly with the rules of law. For a yearly tenancy, it should be a notice of six months; and for any shorter tenancy it should be as long as the term. If a quarterly tenancy, a quarter's notice; if monthly, a month's notice; if weekly, a week's notice.

It should be in writing, and should express clearly the period of time of the tenancy, and that the tenant is required to quit on the last day thereof; and should be served a full week, or month, or quarter, as the period of time may be, beforehand. To be safe, let it show the days of commencement and ending of the week, month or quarter, &c., and let it be served before the commencement of the week, month or quarter, &c., although if served on the day of commencement, it would, in most cases, be sufficient. Where the tenant wishes to terminate the tenancy, he should give notice to the landlord with like strictness.

If the tenant transfer his whole right to another, such transfer is called an assignment of the lease. If he make a transfer of a part of the term, or of a portion of the premises, it is an under-lease.

It is questionable, whether a restriction in a lease against assignment, can be enforced, so as to make a forfeiture in any case as it is in restraint of alienation, and therefore, against the policy of the law. In New York it is well settled, that it cannot be so enforced.

If a lease contains a covenant not to assign, and the restriction is once removed, it operates as a removal of the restriction forever.'

When a lessee makes assignment of the lease to another, he is still liable to the lessor for the rent, unless the lessor accept the assignee as his tenant, either expressly or impliedly; as, by receiving rent from him as a tenant, and giving him receipt in his name. But it seems, an assignee may assign over, even to an insolvent person, and free himself from all future liability.'

A sub-tenant is liable to the original lessor for use and occupa tion, or for rent, only for the time he actually occupied the premises.❜

An action for use and occupation can only be maintained where the relation of landlord and tenant exists.*

All conveyances of land by lease or otherwise, made for more than ten years, and all conveyances of town or city lots, or other real property for a longer time than twenty years, are declared by our statute, to be void."

15 Cal. 49.

2 Smith's Land. and Ten. 293.

31 Cal. 470.

48 id. 196.
Wood's Dig. art. 425,

A lease for a longer period than one year is considered a conveyance, under the statute in relation to recording conveyances; and must be recorded in the county where the premises lie, otherwise it will not be binding against a subsequent purchaser in good faith for a valuable consideration.' See chapter on Ac

KNOWLEDGMENTS.

Grants of rents, or of reversions or remainders, shall be good and effectual without attornments of the tenants; but no tenant who before notice of the grant shall have paid rent to the grantor, shall suffer any damage thereby."

The attornment of a tenant to a stranger shall be void, unless it be with the consent of the landlord of such tenant, or in pursuance to, or in consequence of, a judgment or decree of some court of competent jurisdiction."

The questions arising as to forfeiture for non-payment of rent, the respective obligations of landlord and tenant, as to repairs and other matters of tenancies, &c., are determined very much by the character of the express covenants in the lease. The present object is, so far as these brief remarks extend, to treat more particularly of tenancies where there is no written lease, or where the lease does not contain covenants.

The chief rights of the landlord are, to have the stipulated compensation paid him for his property, and to have it properly treated while it remains out of his possession. The great and principal right of the tenant against the landlord is, to be maintained in the peaceable and quiet enjoyment of the property demised to him."

Forfeiture of the tenancy for non-payment of rent, did not exist anciently at common law; but this right has become gradually established by enactment and adjudication, and is provided for in this state, under the statute in relation to forcible entry and unlawful detainer."

To create such forfeiture, it is necessary that demand be made for the exact sum, on the day it becomes due, without reference to any arrears, about sunset of that day. The demand should be made on the premises of the tenant, of the person in posses

1 Wood's Dig. art. 873.

2 id. 885.

$ id. 386.

4 Smith's Land. and Ten. 205.
Wood's Dig. art. 2534.

3 Cal. 278, 334.

sion; or in case no one can be found in possession, in the next best manner, for instance, by making demand in a loud voice in front of the premises, or in the most conspicuous place thereon.

Three days after such demand of rent, notice must be served in writing, making demand of the tenant that he or she shall deliver possession of the premises. This notice must be absolute, and not in any way conditional. On neglect for three days longer to pay the rent, an action for the possession accrues to the landlord.'

By failing to pay rent when demanded, the contract under the lease is forfeited, and possession held after that is tortious.

A waiver of the demand will never be implied for the purpose of making a forfeiture, for, from its very nature, a forfeiture cannot take place by consent, and is not favored by the rules of law."

The acceptance of rent, which becomes due after a forfeiture, is a waiver of the forfeiture; even when the lease expresses that it shall become void upon breach of condition."

Under the statutes mentioned above, an action for restitution accrues in like manner, where a tenant or under-tenant holds over against the will of the landlord after the lease has expired, or holds possession contrary to the covenants or conditions of the lease.'

But the action cannot be maintained under that act, against a tenant who has held over for one year after the expiration of the lease adversely or without payment of rent; nor against any person who continues in possession three years quietly and peaceably.

A person who enters into possession of land under another cannot question the title of him under whom he holds; and it has been held that where a person is in quiet possession of premises, and takes a lease, he cannot afterward deny the title of the landlord, unless false and fraudulent representations were made to him to induce him to execute the lease.

Where a tenant finds there are adverse claimants to the property, he should file a bill of interpleader, making all the adverse

1 Wood's Dig. art. 2584.

2 10 Cal. 802.

8 id. 334.

4 Smith's Land. and Ten. 109, 114.

56 Cal. 189.

• 1 id. 470.

claimants parties thereto, and offer to pay the rents into court, to abide the ultimate decision of the case.'

Security for the payment of rent upon a lease may be given by the words, "I hereby agree to pay the rent stipulated above, when it shall become due, provided the said A. B. does not pay the same," written upon the lease at the time the lease is made; it being held that such an agreement, though not expressly a consideration, is a part of the lease, and not within the statute of frauds. But it would be better to say, "For value received I hereby agree to pay," &c.

When the lease covenants to pay rent during the term, and to return the premises in good order and condition, natural wear and damages by the elements excepted, in case of destruction of the building by fire, the lessee is bound to pay rent for the whole term, but is not bound to restore the building, unless he has specially so contracted.

A covenant for a lease to be renewed indefinitely at the option of the lessee, is, in effect, the creation of a perpetuity, and is against the policy of the law.'

A covenant in a lease to the lessee, "his heirs and assigns," that, in the event of a sale by the lessor, the lessee is entitled to a refusal, is a covenant running with the land. Every covenant relating to the thing demised attaches to the land and runs with it.'

The valuable privilege of pre-emption attaches to the entire property, and is therefore assignable."

A description of premises in a lease is sufficiently certain if the boundaries can be ascertained with a reasonable degree of certainty, and the lessee has occupied them under the lease.'

The landlord, in the absence of express agreement, is under an implied obligation to indemnify the tenant against eviction or disturbance by his own act, or the acts of those who claim under or paramount to him, but not against the tortious acts of third persons."

Tenants have a right to remove buildings erected by them, at

18 Cal. 592.

25 id. 285.

3 id. 64.

49 id. 662.

1 id. 470.

Smith's Land, and Ten. 211.