Title. Of particular persons. Landlord. Notice to quit, where necessary. tion of either of the above terms of years, if he intends to leave; if purchases before the expiration of the above term by D. D. he is to pay on purchase 1,000 guineas." It was held, that this instrument only amounted to an agreement for a future lease. The leading principle which governs the construction of these cases, is the intention of the parties, as it is to be collected from the whole of the agreement (a); but, in the application of this rule great difficulty occurs. In some instances, the courts appear to have resorted to collateral circumstances in order to discover the intention of the parties. Thus it is said by Ashurst, J., that "where the words are de presenti, "I demise," and the party is immediately put into possession, the landlord shall not afterwards turn him out of possession, and say, that it was not a present demise, for the permitting the party to enter is strong evidence to shew that the landlord intended to give a present interest." (b) And in Baxter v. Browne (c), the circumstances of the uninterrupted possession of the party, and the receipt of rent, were taken into the consideration of the court. It should seem, however, that any collateral circumstances occurring subsequently to the making of the instrument cannot properly be allowed to have any weight in the construction of such instrument. (d) The expressions and circumstances which indicate an intention that the instrument shall operate as a lease, appear to be: 1. Words of present demise, as "I demise," or future words, conferring a right of enjoyment, as "that the party shall hold and enjoy" (e); and the mere stipulation, that a lease shall at a future time be executed, will not, as it seems, alter the effect of such words. (f) The stipulation with regard to a future lease is in such case considered in the light of a covenant for (a) Doe v. Ashburner, 5 T. R. 167, 8,9. Goodtitle v. Way, 1 T. R. 737. Poole v. Bentley, 12 East, 170. Morgan v. Bissel, S Taunt. 72. Doe v. Smith, 6 East, 531. (b) Doe v. Ashburner, 5 T. R. 168. (c) 2 Wm. Bl. 973; and see 5 B. and A. 325. (d) See the observations of Sir W. D. Evans, Chamb. Landl. and Ten. 275; see also what is said by the court in Morgan v. Bissel, 3 Taunt. 71, as to the argument raised from the affixing an agreement stamp to the instrument; and see ante, p. 414. (e) Harrington v. Wise, Cro. Eliz. 486; ante, p. 516. Baxter v. Browne, 2 W. Bl. 973; ante, p.517. Poole v. Bentley, 12 East, 168; ante, p. 517. Barry v. Nugent, 5 T. R. 165; ante, p. 517. (f) Ibid. Title. Of particular persons. Landlord. further or more formal assurance. (a) But where, on the face of the instrument, it is evident, that a future lease is contemplated, (although it be not expressly provided for,) and, at the same time, various terms of the tenancy remain to be ascertained by such lease, then, although there are words of present demise, Notice to quit, the instrument will only operate as an agreement. (b) 2. Where where necessary. it is stipulated, that the lessee shall do some act upon the premises before the execution of a formal lease, such stipulation is evidence of an intention to make a present demise. (c) 3. A stipulation, that the agreement shall be considered binding until one fully prepared can be produced, is evidence of the same intent. (d) On the other hand, there are various expressions and circumstances which have been held to manifest an intention, that the instrument shall enure as an agreement merely. 1. If a forfeiture would be incurred by holding the instrument to be a lease, it should be presumed, that the intention of the parties was to make an agreement for a lease only. (e) 2. Any words which shew, that a future act is to be done before the relation of landlord and tenant commences, as the purchase and addition of another piece of land to the premises, will be proof that the instrument was not intended to operate as a lease. (f) 3. When a stipulation is contained in the instrument, importing that something ulterior the agreement is to be done by way of a regular lease, this is evidence of the agreement being merely executory. (g) sion. What was formerly considered to be a tenancy at will, has Tenancy at will been in modern times construed to be a tenancy from year to and cases of year (h), unless the circumstances of the case clearly render such lawful possesa construction impossible, or unless the tenancy at will be created by the express agreement of the parties. No tenancy from year to year, therefore, is created where A. lets a shed to B. for so long as both parties shall like, on an agreement that B. shall 244; ante, p. 518, 5 B. and A. 325. (e) Doe v. Clare, 2 T. R. 739. Ante, (a) Cro. Eliz. 486. 2 W. Bl. 974. 5 T. R. 166. 15 East, 246; but it is difficult to reconcile Sturgeon and Painter, Noy, 128, Goodtitle and Way, 1 T. R. 757, and the observations of the judges in Colley v. Streeton, 3 D. and R. 528, with this position. p. 519. (f) Doe v. Ashburner, 5 T. R. 163. Ante, p. 520. 15 East, 247. See Hamerton v. Stead, 3 B. and C. 481. (g) Doe v. Smith, 6 East, 550. Ante, (b) Morgan v. Bissel, 3 Taunt. 72; p. 521. ante, p. 520. (c) Poole v. Bentley, 12 East, 168; ante, p. 517, 13 East, 19. (h) Timmins v. Rowlison, 3 Burr. 1609. Right d. Flower v. Darby, 1 T. R. 159. Doe d. Shore v. Porter, 3 T. Clayton v. Blakey, 8 T. R. S. (d) Ibid. Doe v. Groves, 15 East, R. 16. persons. Landlord. Notice to quit, where necessary. Title. convert it into a stable, and A. have all the dung for a comOf particular pensation; there being no reservation referable to any aliquot part of a year. (a) Where a party has been let into possession, pending a treaty for a purchase or a lease (b), or under a void or imperfect lease, or conveyance (c), or where, having been tenant for a term which has expired, he continues in possession, negociating for a new one (d), in these and the like cases, where a party comes lawfully into possession he is either a tenant at will, or at all events is in lawful possession and cannot be ejected, until such lawful possession is determined, either by demand of possession, breaking off the treaty, or otherwise. (e) But where the vendor of a term before the whole purchase money was paid, agreed with the vendee that he should have possession of the premises till a given day, paying the reserved rent in the meantime; and that in case he did not pay the residue of the purchase money on that day, he should forfeit the portion he had already paid, and not be entitled to an assignment of the lease, Lord Ellenborough, C. J. held that this agreement operated like a clause of re-entry on a breach of covenant in a lease, and that the residue of the purchase money not being paid upon the appointed day, the vendee's interest thereupon ceased, and he might be ejected without any notice to quit. (f) So where a man got into possession of a house without the privity of the landlord, and the parties afterwards entered into a negociation for a lease, but disagreed about the value of the fixtures; in an ejectment brought by the landlord, Lord Ellenborough was of opinion that if this was a tenancy of any sort, it was a tenancy at sufferance, and a notice to quit was unnecessary. (g) (a) Richardson v. Langridge, 4 Taunt. 128. (b) Goodtitle d. Gallaway v. Herbert, and A. 322. Doe d. Newby v. Jack- (c) Litt. sec. 70. Corbet v. Stone, (d) Doe d. Hollingsworth v. Stennett, 2 Esp. N. P. C. 717. (e) Right d. Lewis v. Beard, 13 East, 210. Denn d. Brune v. Rawlins, 10 East, 261. Doe d. Hollingsworth v. Stennett, 2 Esp. N. P. C. 717. Goodtitle d. Gallaway v. Herbert, 4 T. R. 680. Doe d. Newby v. Jackson, 1 Barn. and Cres. 448. See also Whiteacre d. Boult v. Symonds, 10 East, 13, and Doe d. Biggs v. White, 2 D. and R. 716. (f) Doe d. Leeson v. Sayer, 3 Camp. N. P. C. 8. (g) Doe d. Knight v. Quigley, 2 Campb. N. P. C. 505. And see Doe d. Moore v, Lawder, 1 Stark, N. P. C. 308. A schoolmaster having a freehold interest in his office cannot be ejected by the feoffees and visitors of the school, until his interest has been determined upon summons in the regular way.(u) Title. Of particular persons. Landlord. A mortgagor in possession, with the consent of the mortgagee, Notice to quit, must be regarded either as tenant at will or by sufferance (6), yet where necessary. an ejectment may, it is said, be maintained against him by the mortgagee, before any actual determination of the will or demand of possession. (c) Nor does the tenant of the mortgagee stand in any better situation than the mortgagor himself, where the tenancy is created after the mortgage. (d) So if he be let into possession after the mortgage made, but before the assignment of it to the lessor of the plaintiff (e), but where he comes in under the mortgagor, prior to the mortgage, he is entitled, if tennant from year to year, to half a year's notice. (ƒ). Payment and receipt of rent will in many cases operate so as to create a tenancy from year to year, and render a notice to quit necessary. Thus if tenant for life makes a lease, and dies, whereby the lease expires, if the remainderman receives rent from the tenant, a tenancy from year to year is created. (g) So where tenant for life makes an unauthorised lease under a power, which is void as against the remainderman, and the latter after the death of the tenant for life receives rent from the tenant, (a) Doe d. Earl of Thanet v. Gartham, 1 Bingh. 357. (b) Partridge v. Bere, 5 B. and A. 604. Thunder d. Weaver v. Belcher, 3 East, 449. Coote on Mortgages, 327. (c) Birch v. Wright, 1 T. R. 385, quare. (d) Keech v. Hall, Dongl. 21. (e) Thunder d. Weaver v. Belcher, 3 East, 449. (ƒ) Birch v. Wright, 1 T. R. 380. (g) Sykes d. Murgatroyd v. Birkett, cited 1 T. R. 161. Roe d. Jordan v. Ward, 1 H. Bl. 97. Payment of rent is conclusive evidence of a tenancy, Bishop v. Howard, 2 B. and C. 100. But where the receipt for rent was given, first in the name of A. who originally demised, and afterwards of A. and B., it was held that A. might re cover on a demise by himself. Doe v. Baker, 2 B. Moore, 189. Payment of cited Com. Land, and Ten. 453. Title. Of particular as between landlord and tenant, a jury from such circumstances may infer a tenancy from year to year (a); and it does not seem to alter the case that the remainderman was ignorant of his title at the time when he received the rent. (b) So where a party is let into possession under a lease which is void by the statute of Notice to quit, frauds, though payment and receipt of rent will not establish the where necessary. lease, yet they will create a tenancy from year to year, regulated persons. Landlord. by the covenants and conditions of the void lease. (c) Where a feme covert, who has for many years been separated from her husband, has, during that time received for her separate use the rents of certain lands which came to her by devise, after the separation, a jury may presume that she received the rents by her husband's authority, who having thus acknowledged a tenancy, must give a notice to quit before he can maintain ejectment. (d) Where lands descended to an infant, with respect to whom the tenant was a trespasser, and an ejectment was brought on the demise of the infant, and compromised by his attorney on the terms that the tenant should pay 100%. for rent arrear, and attorn to the infant; in a second ejectment brought by the infant on attaining his full age, although no evidence was given of rent received by him after coming of age, or of any other confirmation of the tenant's title, Lord Kenyon held that a new tenancy had been created, and that a notice to quit was necessary. (e) When the tenant has attorned to another person, or done any act disclaiming to hold of his landlord, or has in any way put him at defiance, the landlord may treat him as a trespasser, and no notice to quit will be necessary (ƒ); but a refusal to pay rent to a devisee under a will which was contested, the tenant declaring that he was ready to pay his rent to any person who was entitled to receive it, was held not to be such a disavowal of title as to enable the devisee to maintain ejectment without a notice to quit. (g) (a) Doe d. Brune v. Prideaux, 10 (c) Doe d. Regge v. Bell 5 T. R. H. Bl. 97. (d) Doe d. Leicester v. Biggs, 1 Taunt. 367. (e) Doe d. Miller. v. Noden, 2 Esp. N. P. C. 530. (ƒ) Throgmortor v. Whelpdale, Ball. N. P. 96. (g) Doe d. Williams v. Pasquali, Peake's N. P. C. 196. |