CH. XII. s. 4. tenant, on the terms of the original lease, so far as the remainderman is shown to have had knowledge of them (d). Landlord and Tenant hold ing over after Increase of rent. Joint tenants. Draper v. Crofts. Presumption may be rebutted. Yearly tenancy by entry and payment of rent under contract for lease. So, if a lessee hold over after the expiration of his term, and the lessor receive rent, as rent, or otherwise recognise the party as his tenant, there may be tacitly created a tenancy from year to year (e), the question whether such a tenancy has been created or not being one of fact, depending on the circumstances of each particular case. And in such a case, if there be no evidence to the contrary, the presumption of fact arises that there is a new tenancy upon the terms of the old lease, so far as they are not inconsistent with a yearly holding (f). Thus it has been held, that a proviso for re-entry on non-payment of rent attaches to a yearly tenancy created by holding over (g). So where, at the expiration of a lease containing a covenant to repair, the tenant verbally agreed to remain tenant at a higher rent, nothing more being expressed between the parties respecting the terms of the new tenancy, he was presumed to hold under the covenants of the former lease, so far as they were applicable to his new situation; and to be, therefore, liable for not rebuilding the premises on their being destroyed by fire (h). But a new tenancy is not created merely by an agreement for an increase of rent during a current holding (i). Nor can one joint tenant or tenant in common bind his companion by holding over without his consent (k). And the circumstances under which the holding over took place may be explained, so as to rebut the presumption that the parties intended thereby to create a tenancy from year to year (1). If a party take possession of premises under an agreement for a future lease, and he afterwards pays rent (m) for a year, or any aliquot part of a year under such agreement (n); or promises to pay such rent (o); or, if he admits it to be due, e.g., by settling it in account with the landlord (p), a new agreement may be (d) Oakley v. Monck (1866), 3 H. & C. 706; L. R., 1 Ex. 159, Ex. Ch. ; Roe d. Jordan v. Ward (1789), 1 H. Bl. 97; 2 R. R. 728. (e) Per Cur., Doe d. Clarke v. Smarridge (1845), 7 Q. B. 957; Bishop v. Howard (1823), 2 B. & C. 100. (f) Hyatt v. Griffiths (1851), 17 Q. B. 505, 509; Mayor of Thetford v. Tyler (1845), 8 Q. B. 95; Boraston v. Green (1812), 16 East, 71; 14 R. R. 297. (g) Thomas v. Packer (1857), 1 H. & N. 669. (h) Digby v. Atkinson (1815), 4 Camp. 275; 16 R. R. 792. (i) Doe d. Monck v. Geeckie (1844), 5 Q. B. 841; and see Crowley v. Vitty (1852), 7 Exch. 319. (k) Draper v. Crofts (1846), 15 M. & W. 166; Tancred v. Christy (1843), 12 M. & W. 316; S. C., 9 M. & W. 438; which seems to overrule Christy v. Tancred (1840), 7 M. & W. 127. (1) Jones v. Shears (1836), 4 A. & E. 832. (m) The payment to be within this rule must be of rent, strictly as such; Marquis of Camden v. Batterbury (1860), 7 C. B., N. S. 864, Ex. Ch. (n) Per Parke, B., Braythwayte v. Hitchcock (1842), 10 M. & W. 494. (0) Per Tindal, C.J., Regnart v. Porter (1831), 7 Bing. 451. (p) Cox v. Bent (1828), 5 Bing. 185. Tenant presumed, whereby he becomes a tenant from year to year, subject CH. XII. s. 4. to such of the terms of the contemplated lease as are not inconsis- Landlord and tent with such tenancy (q); at the expiration of the term contracted for, the tenancy from year to year, thus created, ceases without any notice to quit (r). The well-established doctrine of the common law that a person entering and paying rent under an agreement for a lease becomes tenant from year to year on the terms of the agreement, has, since the Judicature Act and the decisions in Walsh v. Lonsdale (s) and other cases, been further extended so as to give the parties all their rights under the lease agreed for in any case where specific performance of the agreement would be decreed. (Tenancy from Year to Year). Doe v. Amey. Right to lease. Walsh v. Lonsdale. Acquisition by non-payment of rent for 12 years, of fee simple A tenant from year to year, not holding under a written contract of tenancy, not paying rent for 12 years, acquires the fee simple of the land demised, by virtue of sect. 8 of the Real Property Limitation Act, 1833, 3 & 4 Will. 4, c. 27, and sect. 2 of the Real if contract Property Limitation Act, 1874, 37 & 38 Vict. c. 57. of tenancy unwritten. SECT. 5.-Estoppel of Tenant from disputing Landlord's Title. A long-settled and undoubted general rule is, that a tenant is estopped from disputing his lessor's title (t). Therefore, the tenant of glebe land is not allowed, in an action for use and occupation, to show a simoniacal presentation of the plaintiff, his landlord (u). Nor, where the tenant comes into possession under a party who claims to be devisee, can he dispute the title of such party on the ground that the devise was void (x). And the same rule applies where the tenant either comes in under, or, being already in possession, agrees to become tenant to one who has only the equity of redemption (y). And where the lessee is estopped, so is any one who claims under him (z). (x) Doe d. Marlow v. Wiggins (1843), 4 Q. B. 367. (y) Morton v. Woods (1869), L. R., 4 Q. B. 293. (2) Doe d. Bullen v. Mills (1834), 2 A. & E. 17; Taylor v. Needham (1810), 2 Taunt. 278; 11 R. R. 572; and see Doe d. Morris v. Williams (1826), 6 B. & C. 41; London and North Western Railway Company v. West (1867), L. R., 2 C. P. 553. of the estopped from disputing his Cooke v. tenant being lessor's title. Loxley. CH. XII. s. 5. And where the tenant would be estopped from disputing the Landlord and title of the lessor, he is also estopped from disputing that of the lessor's heir or assignee (a). Tenant (Tenancy by Estoppel). Lessee cannot dispute title of lessor's heir or assignee. Tenant may show that landlord's So, if a conveyance from the landlord and notice thereof to the tenant be proved, and he remain in possession, he cannot, in an action for use and occupation, dispute the title of his landlord's assignee (b). And the estoppel holds in favour of a reversioner, whose interest is the same as that of a tenant for life, deceased, to whom the defendant was tenant (c). Although a tenant cannot in general object that his landlord never had title, he may show that, since the demise, and before the title expired. period for which rent is claimed, his title expired (d); and the tenant may avail himself of this defence, without proving that he renounced his landlord's title; or that he gave up possession, or commenced a fresh holding under another person (e). And the payment of rent by lessee to lessor, after the title of the latter has expired, and after the lessee has had notice of an adverse claim, does not amount to an acknowledgment of title in the lessor, or to a virtual attornment; unless, at the time of payment, the lessee was acquainted with all the circumstances of the lessor's title (ƒ). Definition of rent. Corn rent. Royalty. SECT. 6.-Rent. Rent as payable by a tenant to a landlord is a certain profit issuing yearly out of the lands demised. It need not be, as it usually is, in money (g), and corn rents were at one time very common in this country. In farming leases, too, it has been computed according to the average price of corn (h), and in mining leases it generally varies with the amount of mineral raised, when it is termed a "royalty." In farming leases it is frequently stipulated that if the tenant plough up pasture, he shall pay an additional rent of say 51. for every acre of pasture so ploughed up, and the whole amount of 230; but see Delany v. Fox (1857), 2 C. B., N. S. 768; and Balls v. Westwood (1809), 2 Camp. 11. (f) Per Best, C.J., Fenner v. Duplock (1824), 2 Bing. 10. (9) See Duke of Marlborough v. Osborn (1864), 33 L. J., Q. B. 148. (h) See Kendall v. Baker (1852), 11 C. B. 842; and as to college leases, 18 Eliz. c. 6; Woodfall, L. & T. 17th ed., at p. 433. Landlord aud (Rent). such rent is recoverable (i); though if there be a set of stipulations CH. XII, s. 6. not to do a set of particular things followed by a stipulation to pay a certain amount on breach, such amount is treated as a penalty, recoverable only up to the actual damage resulting from breach (k). Forehand rent, or rent in advance, is also sometimes stipulated Forehand for, especially for the last quarter of a term. The stipulation for such rent should be clearly expressed, and in such case can undoubtedly be enforced (1). rent. due. Rent is due on the morning of the day appointed for its payment, When rent but is not in arrear until after midnight of that day, so that it cannot be distrained or sued for until the day after the day appointed for payment (m); and it is due on the land for the purpose of avoid- Where. ing the effect of a proviso for re-entry for non-payment of it (n), but for the purpose of avoiding an action upon a covenant for its payment is due at the place where the landlord may happen to be at the time appointed for payment (0). Rent is apportioned in respect of estate, where part of the demised premises becomes lost both to the lessor and lessee, either by the act of God, as by a flood (p), or by the act of the law, as where part of the premises is compulsorily taken under the Lands Clauses Act (q), or the School Sites Act (r). Apportion ment of rent in respect of estate. time. Rent is apportioned in respect of time, where the landlord In respect of dies between two of the quarterly or other days appointed for payment, by virtue of the Apportionment Act, 1870, 33 & 34 Vict. c. 35, the effect of which is that all rents are to be considered as accruing from day to day, and that when a landlord dies, having been a tenant for life, or having devised the demised premises to a person other than his personal representative, his real representative recovers the first entire rent due after the death from the tenant with the obligation of paying over the proper proportion to the personal representative. The Act expressly provides that the tenant shall not be resorted to for any apportioned part specifically, but its application is not confined to the adjustment of the proportions due to two landlords. So comprehensive are its terms, that it applies, unlike prior Acts in pari materiâ, as between landlord and tenant (s). (i) See Rolfe v. Peterson (1772), 2 Bro. P. C. 436. (k) See Kemble v. Farren (1829), 6 Bing. 141, and the cases collected in Lord Elphinstone v. Monkland Iron, &c., Co. (1886), 11 App. Cas. 332. (1) See Morton v. Woods (1869), L. R., 3 Q. B. 658; 4 Q. B. 293, Ex. Ch. (m) See Dibble v. Bowater (1853), 2 E. & B. 564. (n) See Rowe v. Young (1820), 2 B. & B. 165, at p. 234, H. L. (0) Haldane v. Johnson (1853),8 Ex. 689. (r) See School Sites Act, 1849, Chit. (s) See Swansea Bunk v. Thomas (1870), 4 Ex. D. 94, and other cases cited in the notes to the Act in Chit. Stat., tit. "Apportionment," at p. 5. CH. XII. s. 7. (Distress for Nature of distress. Amount of arrears recoverable. What may be distrained. Exemptions SECT. 7.-Distress for Rent. Rent is recoverable not only by action, but by the peculiar and very ancient remedy of distress, which is the taking, without legal process, of goods or cattle found on the demised premises as a pledge to compel the payment of the rent in arrear. The things thus taken, not at common law saleable, are saleable by virtue of 2 W. & M. sess. 1, c. 5, as amended by the Law of Distress Amendment Act, 1888, 51 & 52 Vict. c. 21. Six years' arrears are recoverable (except in the case of an agricultural tenancy) by sect. 42 of the Real Property Limitation Act, 1833, 3 & 4 Will. 4, c. 27. As a general rule, all goods and cattle found on the demised premises, whether belonging to the tenant or a stranger, may be distrained for rent, but both at common law and by statute there are very numerous things exempted from this general rule. The from distress. most important of these exempted things are, things delivered to a person in the way of his trade, as goods pledged with a pawnbroker (t), the goods of a lodger (u), sheep (x), and tools of trade (y), the exemption attaching to sheep and tools of trade only in case of there being other distress upon the premises. Agricultural tenancy. Distress by certificated bailiff. Sale of distress. Replevin. If the tenancy be agricultural, &c. (see sect. 12, post), there is a further exemption from distress of hired machinery and breeding stock, and, in case of there being other distress upon the premises, of a third person's live stock taken in to be fed at a fair price (2); and not more than one year's rent due before distress may be distrained for, the one year to be computed in the case of deferred payments allowed "according to the ordinary course of dealing between landlord and tenant" from the expiration of any quarter or half-year up to which payments may have been deferred (a). The Law of Distress Amendment Act, 1888, 51 & 52 Vict. c. 21, as amended by the Law of Distress Amendment Act, 1895, 58 & 59 Vict. c. 24, provides that no person may act as a bailiff to levy any distress for rent unless he shall be authorised to act as a bailiff by certificate in writing under the hand of a County Court judge, who may at any time cancel or declare void such certificate. The distress does not become saleable till after the expiration of five, or if the tenant so require in writing, fifteen days, during which period the tenant is allowed to "replevy," that is, to test the lawfulness of the seizure by an action of replevin which enables (t) Swire v. Leach (1865), 18 C. B., N. S. 479. (u) 34 & 35 Vict. c. 79. (x) 52 Hen. 3, stat. 4 (4), Stat. Marlb. (2) Agricultural Holdings Act, 1883, 46 & 47 Vict. c. 61, s. 44, as to which see Ball, Ex parte Bew, In re, (1887) 18 Q. B. D. 642. (a) Ib. sect. 44. |