CHAPTER XLIV.

(2) ESTATES FROM YEAR TO YEAR, AND

FROM QUARTER TO

QUARTER, FROM MONTH TO MONTH, ETC. FROM PERIOD TO PERIOD.

§ 655. Origin and nature of such estates - Kinds.

§ 656. How such estates (from period to period) are created.

§ 657. Incidents of such estates from year to year, etc.

§ 658. Termination from year to year, etc.

of estates

Kinds. An

§ 655. Origin and Nature of such Estates estate at will is one that, at common law, may be terminated at any time by either landlord or tenant.1 It was early known to the courts; but its precarious character always made it objectionable to them.

Its sudden ending, by the act of one party against the wish of the other, may cause the latter great damage, for which the common law originally gave him no redress. Therefore, by what may fairly be called a process of judicial legislation, holdings to which no definite limits were given by express contract were taken out of the category of estates at will, when the courts could imply an agreement as to time, either from the character of the occupancy, or from the method of payment for the use of the land. Hence, as early as the time of Henry VIII., arose estates from year to year, from quarter to quarter, from month to month, from week to week, etc.3 In order of importance, these forms of interests in realty are next to estates for years.

An estate from year to year is one held for a year certain, and to continue for another year, and another, and so on, in the

1 See ch. xlv. infra.

2 Roe v. Lees, 2 W. Blackst. 1171; Cattley v. Arnold, 1 Johns. & H. 651, 656; Jackson v. Wilsey, 9 Johns. (N. Y.) 267; Griswold v. Town of Bradford, 68 Atl. Rep. 987 (Conn.); Hey v. McGrath,

81 Pa. St. 310; 1 Taylor, Landl. & T. $ 55.

3 Ibid.; Co. Lit. 55 a; Right v. Darby 1 T. R. 159; Leavitt v. Leavitt, 47 N. H. 329; Smith, Landl. & T. 8.

absence of some act to terminate it at the end of one of the years. Likewise, an estate from month to month is one to continue for a month certain, and if nothing be done to end it, for another month, and so on month by month.2 And the same is true of a tenancy from week to week, or from day to day.3 The estates of the lesser periods here named those from quarter to quarter, from month to month, from week to week, etc. are the same kinds of interests as estates from year to year, except as to time; their incidents are substantially the same, and they are all grouped generally under the same heading. The law does not regard any of these estates as an interest terminating at the end of each of its periods and recommencing an estate from year to year does not end at the close of the first year, and start on the second, but it is a continuing interest growing from year to year, as the parties (by not terminating it) let it advance; and the same is true of an estate from quarter to quarter, or from month to month, or from day to day.5 Therefore, the landlord does not become responsible, at the beginning of each new period, for the condition of the premises at that time; as he would become if the law regarded the holding in each new period as in substance under a new lease.

§ 656. How such Estates (from Period to Period) are Created. -An estate from year to year may be made, of course, by express agreement of the parties; as, for example, by a contract that the tenant may hold from year to year, from one year to another, until the letting is duly terminated. Such direct crea

1 Richardson v. Langridge, 4 Taunt. 128; Oxley v. James, 13 M. & W. 214; Pugsley v. Aiken, 11 N. Y. 494; 4 Kent, Com. p. 114. Such an estate seems to be unknown, at least as made by implication of law, in Maine and Massachusetts. Withers v. Larrabee, 48 Me. 570; Ellis r. Paige, 1 Pick. (Mass.) 43.

2 Anderson v. Prindle, 23 Wend. (N. Y.) 616; Steffens v. Earl, 40 N. J. L. 128; London & San Francisco Bk. v. Curtis, 27 Wash. 656; 1 Taylor, Landl. &T. § 57. This holding, from period to period, made by implication of law, must be carefully distinguished from a short tenancy, as for one month, which is expressly renewed from period to period. The latter is an estate for years, and is unaffected by the rules as to notice, etc., which are explained hereafter in regard

to tenancies from period to period. Wilson v. Taylor, 8 Daly (N. Y.), 253; Steffens v. Earl, 40 N. J. L. 128; Searle v. Powell, 89 Minn. 278.

8 Ibid.; Bowen v. Anderson (1894), 1 Q. B. 164; Lane v. Ruhl, 94 Mich. 474. 4 Last three preceding notes; Anderson v. Prindle, 23 Wend. (N. Y.) 616; Steffens v. Earl, 40 N. J. L. 128; Hollis v. Burns, 100 Pa. St. 206.

5 Ibid.; Oxley v. James, 13 M. & W. 214; Cattley v. Arnold, 1 Johns. & H. 651; Bowen v. Anderson (1894), 1 Q. B. 164; Laughran v. Smith, 75 N. Y. 205; Harvey v. Gunzberg, 148 Pa. St. 294. See Gandy v. Jubber, 5 B. & S. 78; Adams v. City of Cohoes, 127 N. Y. 175. 6 Ibid.

7 Doe v. Green, 9 Ad. & E. 658; Pugsley v. Aikin, 11 N. Y. 494.

tion of this form of estate, however, is rare. It commonly arises, in most states, by implication, in one of three ways, as follows. First, when a tenant takes possession of real property without any stipulation as to the period of his holding, pays rent by a yearly reckoning (computed by the year, though the payments may be at more or less frequent intervals), remains for a year, and then holds over, starting on his second year, he becomes by such a holding over a tenant from year to year.1 During the first year he was a tenant at will, and might have remained so but for the way in which he held and paid rent; but the yearly computation of the rent, the completion of one full year, and the unaltered retention of possession thereafter made him become a tenant from year to year.2 Second, a lessee for a term of years, one year or more, with rent of annual computation, holding over voluntarily at the end of his term, becomes, at the election of the landlord, a tenant from year to year. The three essentials here are the computation of rent by the year, the fact that his term under the express lease was for a year or more, and that his holding over is voluntary and without any new agreement. The holding over is treated by the law as voluntary when it results from his intentional act or wrong. Thus, in one case, where, in violation of the condition of his lease, he sublet the property and the sublessee was so dangerously sick at the end of the term that he could not be moved, their retention of the property for a few days thereafter entitled the landlord to treat the tenant, his lessee, as having become tenant from year to year. But where the holding over was because of sickness in the tenant's own family, or because

1 Peacock v. Raffen, 6 Esp. 4; Anderson v. Prindle, 23 Wend. (N. Y.) 616; Douglas v. Seiferd, 18 N. Y. Misc. 188; Steffens v. Earl, 40 N. J. L. 128, 137, 138; Rich v. Boltou, 46 Vt. 84; Dunne v. Trustees, 39 Ill. 578; Williams v. Deriar, 31 Mo. 13; Baltimore Dental Ass'n v. Fuller, 101 Va. 627; Chaplin, Landl. & T. p. 100.

2 Ibid.; Right v. Darby, 1 T. R. 159; Rich v Bolton, 46 Vt. 84; Herrell v. Sizeland, 81 Ill. 457; 4 Kent, Com. p. *114.

8 Dougal v. McCarthy (1893), 1 Q. B. 736; Haynes v. Aldrich, 133 N. Y. 287; Sullivan v. Ringler, 59 N. Y. App. Div. 184; Franklin, etc. v. Card, 84 Me. 528;

Coomler v. Heffner, 82 Ind. 108; Ganson v. Baldwin, 93 Mich. 218; Cavanaugh v. Clinch, 88 Ga. 610. The landlord may waive the effect of such a holding over, as by accepting the keys and taking possession. Rosenberg v. Lustgarten, 16 N. Y. Supp. 323; Drake v. Wilheim, 109 N. C. 97. By thus holding over, a tenant, who has been notified that the rent will be higher if he holds over, is presumed to accept those terms. Despard v. Walbridge, 15 N. Y. 374; 1 Taylor, Landl. & T. § 55.

Ibid.

5 Haynes v. Aldrich, 133 N. Y. 287; Sullivan v. Ringler, 59 N. Y. App. Div. 184; Ganson v. Baldwin, 93 Mich. 218.

of an order of the board of health, and was not occasioned by any wrongful act on his part, and he vacated the property as soon as he could, the landlord could not treat him as tenant from year to year, nor elect to make him pay for another full year's lease. Third, an estate from year to year may emerge, in most jurisdictions, from the possession and enjoyment of property for a full year, by a tenant under and according to the terms of a lease that in itself is void and unenforcible; as, for example, under an oral lease invalid because of the statute of frauds.2 Not only may a lessee, who occupies land for a year under such circumstances, become a tenant from year to year; but, pursuant to the evident intent of the parties, he also becomes obligated by all the covenants and stipulations of the otherwise void lease, except that as to the time; and, even as to time, his estate naturally ends at the time fixed in the void lease, if he remain as tenant that long. Thus, if a lease for five years be made orally, and in it the tenant stipulate that he will pay rent at a thousand dollars per year, and paint the house every year, and not sublet, he becomes a tenant from year to year by taking possession and living up to these requirements for one year; and, although because of the statute of frauds he can not be compelled to continue the tenancy for the five years, yet, as he remains there year

1 Herter v. Mullen, 159 N. Y. 27; Brennan v. City of New York, 80 N. Y. App. Div. 251. And where he who holds over is a part owner of the land, he is presumed to be holding by virtue of his ownership, and not as a tenant. Valentine e. Healy, 178 N. Y. 391.

2 Clayton v. Blakey, 8 T. R. 3; Knight r. Bennett, 3 Bing. 361; Lounsbery e. Snyder, 31 N. Y. 514; Reeder r. Sayre, 70 N. Y. 180; Loughran v. Smith, 75 N. Y. 209; Adams v. City of Cohoes, 127 N. Y. 175; Leavitt v. Leavitt, 47 N. H. 329; Barlow v. Wainwright, 22 Vt. 88; Thurber r. Dwyer, 10 R. I. 355; Dunn v. Rothermel, 112 Pa. St. 272; Huntington r. Parkhurst, 87 Mich 38; Koplitz v. Gustavus, 48 Wis. 48: Scully v. Murray, 34 Mo. 420; Matthews v. Hipp, 66 S. C. 162; Arbenz . Exley, 52 W. Va. 476. Contra, Kelly . Waite, 12 Met. (Mass.) 300: Thomas v. Sanford S. Co., 71 Me. 548 In two or three states, statutes cause this same result to flow from possession under a void oral lease, even

when there is no regular yearly or other periodical payment of rent. Stewart v. Apel, 4 Houst. (Del) 314; Railsback v. Walke, 81 Ind. 409. In most states, when a tenant occupies in the manner described in the text, but pays rent monthly, he becomes a tenant from month to month. People v. Darling, 47 N. Y. 666; Luger v. Goerke, 18 N. Y. App. Div. 291.

3 Richardson v. Gifford, 1 Ad. & El. 52; Martin v. Smith, 27 L. J. Exch. 317; Coudert v. Cohn, 118 N. Y. 309; Lounsbery v. Snyder, 31 N. Y. 514, 516; Kernochan v. Wilkens, 3 N. Y. App. Div. 596; Larkin v. Avery, 23 Conn. 304; Norris v. Morrill, 40 N. H. 395; Huntington v. Parkhurst, 87 Mich. 38.

Ibid.; Doe v. Bell, 5 T. R. 471; Doe v. Stratton, 4 Bing. 446; Berrey v. Lindley, 3 M. & G. 496. Compare Coudert v. Cohn, 118 N. Y. 309; Reeder v. Sayre, 70 N. Y. 180; John son v. Albertson, 51 Minn. 333.

by year, in each year he can be compelled to pay rent at a thousand dollars per year, and to paint the house, and not to sublet ;1 and further, if he remain for the full five years, his holding then terminates naturally, and he is not entitled to any notice to quit at that time.2

The lesser estates from period to period, within this general group, arise simply from periodical holdings and payments of rent. Having brought the estate technically from year to year into being, the courts logically followed their own good precedent by implying these lesser interests. Accordingly, it became settled that, when one takes land without agreement as to time, and regularly pays rent by the month, he becomes a tenant from month to month; when his payments are by the fortnight, he becomes a tenant from fortnight to fortnight; 5 when they are weekly, from week to week; and there have been instances of payments made daily resulting in tenancies. from day to day.7

§ 657. Incidents of Estates from Year to Year, etc.— During the running of one of his periods, a tenant from year to year, or from month to month, etc., is substantially a tenant for years; the material distinction being that he is entitled to, or must give, notice to terminate his holding at the end of the period. Within such time, his period, therefore, his rights

1 Last preceding note but one. 2 Last preceding note but one.

3 Doe v. Raffan, 6 Esp. 4; Anderson v. Prindle, 23 Wend. (N. Y.) 616; Steffens v. Earl, 40 N. J. L. 128; Hollis v. Burns, 100 Pa. St. 206; Prickett v. Ritter, 16 Ill. 96; 1 Taylor, Landl. & T. $ 57.

4 Ibid.; Doe v. Hazell, 1 Esp. 94; Prindle v. Anderson, 19 Wend. (N. Y.) 391; People v. Botsford, 47 N. Y. 666; Steffens v. Earl, 40 N. J. L. 127; Barnaby v. Johnston, 28 R. I. 105; Hollis v. Burns, 100 Pa. St. 206; Rothschild v. Williamson, 83 Ind. 387; Skagge v. Elkus, 45 Cal. 154.

5 Ibid.

6 Bowen v. Anderson (1894), 1 Q. B. 164.

7 Lane v. Ruhl, 94 Mich. 474. "To constitute a tenancy by the month, a special agreement to that effect should be made; or the tenancy must be implied from the manner in which the

rent is paid, for where it is paid by the week, month, quarter or year, a weekly, monthly, quarterly or yearly hiring is presumed, according to the circumstances. Where it appears that there is an annual rent reserved, and the payment is to be made by the quarter, or month, or week, then the renting is a yearly letting, without regard to the periods of payment. But where there is no such letting, and there is no evidence but the mere fact of payment at intervals of a week or month, the implication is that the renting is a monthly or weekly one, just as the payment is monthly or weekly." Douglas v. Seiferd, 18 N. Y. Misc. 188; Steffens v. Earl, 40 N. J. L. 128, 137; Wilson v. Taylor, 8 Daly (N. Y.), 253; Chaplin, Landl. & T. p. 100.

8 Johnstone v. Huddlestone, 4 B. & C. 922; Reeder r. Sayre, 70 N. Y. 180; Hall. Wadsworth, 28 Vt. 410; § 658, infra.