to raise an implication of an agreement on his part that this shall not be the effect of a holding over, as when the parties are in treaty for a new lease;425 and it cannot arise when there is an express agreement for a new lease.126

In England and a few states in this country, while it is recognized that a new tenancy is to be implied from the payment of rent by the tenant holding over,27 the right of the landlord to hold the tenant for another term merely because the latter holds over is not admitted, it being considered that, in order to thus create a new tenancy, there must be a new contract, either express or inferable from the dealings of the parties. 428

The mere fact that the landlord demands rent of the ten ant holding over does not show an election to have the tenancy continue as one from year to year,129 but the receip:

425 Montgomery v. Willis, 45 Neb. 434; Smith v. Allt, 7 Daly (N. Y.) 492; Wilcox v. Raddin, 7 Ill. App. 594; Shipman v. Mitchell, 64 Tex. 174.

426 Blumenberg v. Myres, 32 Cal. 93, 91 Am. Dec. 560; Crommelin v. Thiess, 31 Ala. 412, 70 Am. Dec. 499.

427 Right V. Darby, 1 Term R. 159, 3 Gray's Cas. 413; Hyatt v. Griffiths, 17 Q. B. 505, 3 Gray's Cas. 433; Bishop v. Howard, 2 Barn. & C. 100, 3 Gray's Cas. 420; Doe v. Smaridge, 7 Q. B. 957, 3 Gray's Cas. 957; Miller v. Shackleford, 4 Dana (Ky.) 278; Moshier v. Reding, 12 Me. 478; Edwards v. Hale, 9 Allen (Mass.) 462.

In Maine and Massachusetts, where tenancies from year to year are not recognized, the new tenancy created in place of the tenancy by sufferance, by receipt of rent, or otherwise, is a tenancy at will. Edwards v. Hale, 9 Allen (Mass.) 462; Emmons v. Scudder, 115 Mass. 367; Bennock v. Whipple, 12 Me. 346, 28 Am. Dec. 186.

428 Jones v. Shears, 4 Adol. & E. 832; Waring v. King, 8 Mees. & W. 571; Edwards v. Hale, 9 Allen (Mass.) 462; Emmons v. Scudder, 115 Mass. 367; Grant v. White, 42 Mo. 285; Skaggs v. Elkus, 45 Cal. 154; Mendel v. Hall, 13 Bush (Ky.) 232; Kendall v. Moore, 30 Me. 327.

429 Bishop v. Howard, 2 Barn. & C. 100, 3 Gray's Cas. 420; Condon 7. Barr, 47 N. J. Law, 113, 54 Am. Rep. 121.

That the tenant is

of rent by him will have that effect. to continue to hold on the terms of the former tenancy is an inference of fact, rather than of law, and it may be shown that the terms of the holding are to be different, as regards the amount of rent, or otherwise. 181

§ 62. Notice to terminate tenancy.

The possession of a tenant holding over being tortious in its nature, he would not, in the nature of things, be entitled to a notice to quit before he can be put out, and so it has always been stated, apart from statute, that a tenant by sufferance is not entitled to notice.432 But in some states, probably through legislative ignorance of what constitutes a tenancy by sufferance, it is provided by statute that a previous notice of one month or more shall be necessary in order to terminate the tenancy.433 The effect of these statutes, strictly construed, would be that a tenant, by wrongfully holding over, acquires a right to notice which previously he did not possess. This result has, however, been avoided by a construction of these statutes as not applying to a tenancy by sufferance, properly so called.484

480 Blumenberg v. Myres, 32 Cal. 93, 91 Am. Dec. 561; Hall v. Myers, 43 Md. 446; Allen v. Bartlett, 20 W. Va. 46.

481 Mayor, etc., of Thetford v. Tyler, 8 Q. B. 95, 3 Gray's Cas. 429; Hunt v. Bailey, 39 Mo. 257; Despard v. Walbridge, 15 N. Y. 374. 482 1 Washburn, Real Prop. 397; Fawcett, Landl. & Ten. (2d Ed.) 430; Hollis v. Pool, 3 Metc. (Mass.) 350; Young v. Smith, 28 Mo. 65; Reed v. Reed, 48 Me. 388; Howard v. Carpenter, 22 Md. 10, 25; Russell v. Fabyan, 34 N. H. 218; Rich v. Keyser, 54 Pa. St. 86; Emerick v. Tavener, 9 Grat. (Va.) 220, 58 Am. Dec. 217.

433 1 Stimson's Am. St. Law, § 2050 (B); 2 Sharswood & B. Lead. Cas. Real Prop. 146.

484 In Rowan v. Lytle, 11 Wend. (N. Y.) 616, the court seized hold of the expression to be found in the books, that a tenancy by sufferance arises from the laches of the landlord, and from that argued that it does not begin immediately at the end or the original tenancy, but only after such a time has intervened as to

Since the tenant holding over generally becomes, by the landlord's assent thereto, a tenant from year to year, the notice necessary to terminate a tenancy of the latter character would thereafter, it would seem, be necessary in order to terminate this new tenancy at the end of any subsequent year, and it has generally been so held.435 But a notice has recently been held to be unnecessary to terminate a tenancy from year to year so created by a holding over by consent, the tenancy being regarded as terminable without notice at the end of the first year of holding over. 434

raise an implication of assent on the part of the landlord. A like decision was rendered in Smith v. Littlefield, 51 N. Y. 539, Finch's Cas. 738; and see Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609. A similar construction of the term "tenancy by sufferance" in statutes requiring notice for the termination of such tenancy has been adopted in other states, thus in effect rendering the provision entirely nugatory. See Meno v. Hoeffel, 46 Wis. 282; Moore v. Morrow, 28 Cal. 551; Allen v. Carpenter, 15 Mich. 25. In regard to these decisions it may be said that, however beneficial they may have been, as avoiding the absurdity which would be involved in requiring a literal compliance with the statutes, there is no authority whatever for the view that a tenancy by sufferance at common law does not begin immediately upon the end of the original tenancy, and that there is an intervening period in which the tenant is a mere trespasser, which is followed by the tenancy by sufferance. Furthermore, the statements that the holding over must have existed for such a length of time as to raise an implication of assent on the part of the landlord involve a violation of the cardinal principle of a tenancy by sufferance at common law, namely, the absence of the landlord's assent.

In Massachusetts there was at one time a similar statute requiring a notice to terminate a tenancy by sufferance, but there the difficulty was obviated by the repeal of the statute. Kinsley v. Ames, 2 Metc. (Mass.) 29.

485 Right v. Darby, 1 Term R. 159, 3 Gray's Cas. 413; Hall v. Myers, 43 Md. 446; Allen v. Bartlett, 20 W. Va. 46; Grant v. White, 42 Mo. 285; Miller v. Shackleford, 4 Dana (Ky.) 264.

436 Gladwell v. Holcomb, 60 Ohio St. 427, 71 Am. St. Rep. 724; Adams v. City of Cohoes, 127 N. Y. 175, Finch's Cas. 783.

In some cases, the courts speak of the tenant holding over by consent, not as becoming a tenant from year to year, but as becoming

63. Expulsion of tenant.

If the landlord elects to treat the tenant holding over,the so-called tenant at sufferance,-not as a tenant, but merely as a trespasser, he may immediately enter and expel him, or bring proceedings for that purpose.137

As to whether the landlord may forcibly enter and expel a tenant holding over without consent, the cases are in conflict. According to some authorities, he may use such force as is necessary in order to enter and expel the tenant, without making himself liable to a civil action for so doing, though he may be liable to a criminal prosecution for the forcible entry or breach of the peace;438 while by other authorities it is considered that the statute of Richard II., and similar statutes in the United States, forbidding forcible entry and detainer, render the owner of land liable in damages to the tenant holding over for the forcible entry and expulsion of the latter, and that he must resort to legal proceedings to recover possession. of the land.439

a tenant for another year or another term, and, so regarded, a notice would not be necessary to terminate the tenancy at the end of such year or term. Haynes v. Aldrich, 133 N. Y. 287, 28 Am. St. Rep. 636, Finch's Cas. 735; Wolffe v. Wolff, 69 Ala. 549, 44 Am. Rep. 526; Cavanaugh v. Clinch, 88 Ga. 610.

487 Crommelin v. Thiess, 31 Ala. 412, 70 Am. Dec. 499; Brown v. Keller, 32 Ill. 151, 83 Am. Dec. 258; Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609; Hemphill v. Flynn, 2 Pa. St. 144; Benfey v. Congdon, 40 Mich. 283.

488 2 Taylor, Landl. & Ten. §§ 531, 532; Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272; Jackson v. Farmer, 9 Wend. (N. Y.) 201; Souter v. Codman, 14 R. I. 119, 51 Am. Rep. 364; Allen v. Keily, 17 R. I. 731, 33 Am. St. Rep. 905; Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80. See, also, Stearns v. Sampson, 59 Me. 568, 8 Am. Rep. 442, and the exhaustive discussion of the subject by Joseph Willard, Esq., in 4 Am. Law Rev. 429.

439 Dustin v. Cowdry, 23 Vt. 631; Mosseller v. Deaver, 106 N. C. 494, 19 Am. St. Rep. 540; Reeder v. Purdy, 41 Ill. 279; Dilworth v. Fee, 52 Mo. 130. And see Iron Mountain & H. R. Co. v. Johnson, 119 U. S. 608.

III (A). ESTATES ON CONDITION.

An estate on condition is one which, by the terms of the instrument by which it is created, is subject to a contingency not forming a part of the limitation of the estate, it being an estate on "condition precedent" if it is to begin or "vest" on the happening of a contingency, and an estate on "condition subsequent" if it is to terminate thereon, at the option of the creator of the estate or his successor in interest, before its natural time for termination. Estates on condition precedent are future estates, and as such are considered in a subsequent chapter.

No particular words are necessary for the creation of an estate on condition, it being a question of intention as determined from the whole instrument, but, to create a condition, the intention must clearly appear.

Where the condition is impossible, illegal, or repugnant to the nature of the estate, if it is precedent, the estate does not arise, except, perhaps, when impossible by act of the grantor, while, if it is subsequent, the estate is absolute in the grantée.

The breach of a condition subsequent terminates the estate only if a forfeiture be enforced by the grantor or his heirs, or, in the case of a leasehold estate, by his assigns.

Compliance with a condition may be waived, as may the right to take advantage of a breach thereof.

Equity will generally relieve against a forfeiture for breach of a condition subsequent, if the injury caused by such breach is susceptible of compensation in damages.

64. Conditions in general.

440

In discussing estates for years, we adverted to the possibility of the determination of such an estate before its natural expiration for breach of a condition by the tenant,**0 but, generally speaking, we have thus far considered estates in fee simple, in fee tail, for life, and for years, on the supposition that they will endure until their regular termination, as fixed by the character of the estate, that is, until the 440 Bee ante, i 52