When not determined. relation in which they are placed to each other (k), and determinable at the will of either (1), may be determined, either by the death (m) or by the act of either party, and, in the latter case, either expressly, as by the lessor coming on the land, and forbidding the tenant to hold any longer (n); or by demanding the possession, either absolutely (o) or on terms, and the terms rejected (p); or implied, as by his entering on the land, and cutting down a tree, where the trees are not excepted; or putting his beast on a common appendant to a manor leased at will, and even in the absence of the lessee (7); or merely entering on the land (r), or entering thereon, and making livery of seisin (s), or serving the tenant with a declaration in ejectment (t); or by voluntary waste committed by the tenant; or by the lessor or the tenant granting his estate, and the grantee entering on the land (u): for although the tenant can, as against himself (x), create such a tenancy, yet he cannot as against his lessor (y), but the lessor (2) and the lessee (a) must have notice of the transfer. The tenancy may also be determined by the entry of a lessee for years of the lessor (b), although the lease may be invalid (c), or by an agreement to purchase (d). But the tenancy is not determined either by the mere (k) Litt. s. 70; Ley v. Peter, 3 Ex., N. S. 101. (1) Co. Litt. 55 a. (m) Ib. 57b; Doe d. Stanway v. Rock, Car. & M. 549; James v. Dean, 11 Ves. 391. (n) Co. Litt. 55 b; Pollen v. Brewer, 7 C. B., N. S. 371. (a) Doe d. Jones v. Jones, 10 B. & C. 718; Roe d. Blair v. Street, 4 Nev. & M. 42. (p) Doe d. Price v. Price, 9 Bing. 356. (q) Co. Litt. 55b; Ball v. Cullimore, 2 C. M. & R. 120. (r) Lapierre v. M'Intosh, 9 (8) Ball v. Cullimore, supra. B., N. S. 753. (u) Co. Litt. 57 a; Doe d. Davies v. Thomas, 6 Ex. 854. (x) Doe d. Goody v. Carter, 9 Q. B. 863. See also Doe d. Blair v. Street, 4 Nev. & M. 42. (y) 9 Q. B. 865. See also Melling v. Leak, 16 C. B. 652. (z) Carpenter v. Colins, Yelv. 73; Pinhorn v. Souster, 8 Ex. 763; Melling v. Leak, 16 C. B. 652. (a) Doe d. Davies v. Thomas, supra. (b) Hogan v. Hand, 14 M. P. C. C. 311. (c) Wallis v. Delmar, 29 L. J., N. S., Ex. 276. (d) Daniels v. Davison, 16 Ves. 252. granting of a lease by the lessor, to commence at a future day (e), or by his making a mortgage of the demised premises (ƒ); or where the tenant himself creates such a tenancy, and takes a conveyance of the demised premises to himself, although that determines his own tenancy, it does not determine the tenancy created by him (g). Although the lessor may at any time determine his Position of will by entering, yet he has not a right of entry at all the lessor. times from the first commencement of the tenancy, independent of a previous determination of it, but only a right to determine it (h). Although, in general, rent cannot be reserved out of an incorporeal hereditament, except by the King (¿), yet there is no absolute absurdity in supposing that a person, seised in fee, or for life, of a rent-charge, might, for a gross sum of money, demise it for years or at will at a certain rent, and the term rent in this section means rent-charge (k). effect of sect. 7 The object of this section 7 is to fix a definite period Object and after the commencement of a tenancy at will, beyond of 3 & 4 Will. which the tenancy shall not be presumed to have had a 4, c. 27. continuance, and at the end of which the right of entry of the lessor, as against his tenant at will, shall be deemed to have accrued (1), and the effect of the section generally seems to be to prevent, in all cases, and not merely for the purposes of the act, for the words of it are general, the creation of a continuous tenancy at will. In Doe d. Goody v. Carter (m), Patteson, J., said, arguendo, "I doubt if there can now be a continuous tenancy at will. There may be a new one every year. Statute 3 & 4 Will. 4, c. 27, s. 7, considers tenancy at will as determining at the end of one year after its commence 66 The tenancies within that section. ment. It seems to be for all purposes" (n). The construction of this section is not affected by the section 14 (0). The tenancies at will within this section are only those which existed at (p), or those created subsequently to (q), and not those which had determined before (r), or those which, existing at the passing of the act, but under which the possession was not then adverse, were determined within five years after (s) the passing of the act. If, before the right of entry upon a tenant at will be gone, the tenancy be determined and a new one created by fresh agreement, express or implied, between the parties, a fresh right of entry accrues, and an additional period of twenty years must expire before that right will be barred (t). Where the tenancy was created more than fifty years before, and was existing when the c. 27 passed, and the possession under it, not being then adverse, the tenancy was determinable within five years after (u), and was determined within that period by the death of the last of the tenants, and shortly afterwards another tenancy at will was created in other persons, the right of the lessor accrued on the determination of the latter tenancy (x). In this case the court, alluding to the determination of the former tenancy, treated such deter (n) But see Randall v. Stevens, 2 Ell. & B. 641. (0) See Locke v. Matthews, 13 C. B., N. S. 753. (p) Doe d. Bennett v. Turner, (a) See Doe v. Page, supra. son, 6 Ib. 721; Doe d. Evans v. Page, 5 Q. B. 767; Doe d. Birmingham Canal Co. v. Bold, 11 Ib. 127. See also Doe d. Bennett v. Turner, supra; Hodgson v. Hooper, 3 Ellis & E. 149; Hogan v. Hand, 14 M. P. C. C. 311. (s) Hodgson v. Hooper, supra. (t) Doe d. Bennett v. Turner, 7 M. & W. 226; 9 Ib. 643; Randall v. Stevens, 2 Ell. & B. 641; Hodgson v. Hooper, 3 Ell. & E. 149; Locke v. Matthews, 13 C. B., N. S. 753. (u) Sect. 15. (x) Hodgson v. Hooper, 3 Ell. & E. 149. mination as being by the act of the lessor in creating the latter one, but the determination was, in fact, by the death of the last of the tenants. The tenancy, if not determined by the parties within When to be twenty-one years from the commencement of it, but continuous. by force of the sect. 7, must be a continuous one for the whole twenty-one years, or the lessor does not lose his right (y). After the expiration of twenty-one years of a continuous tenancy at will, if the landlord were to enter, no subsequent right of entry having accrued to him, this entry would not be within twenty years next after the time at which the right to make such entry first accrued, and would therefore be unlawful; and, by the sect. 34 of the statute, his right of entry would be extinguished (z). sufferance. Whether where the tenant remains in possession Effect of a continuously for twenty-one years, the tenancy being at will, and tenancy, partly determined during that time by an act of the landlord, partly by without his having actually been in possession, and the possession be continued by the tenant, who is then tenant at sufferance, for a further period, which, added to that of his possession under the tenancy at will, exceeds that term, the possession under the two tenancies together will constitute a bar, is questionable (a). Where the tenancy continued for twenty-one years and upwards, but determined before the statute passed, the possession continued afterwards either by (b), or by persons claiming by or through (c), the tenant, the possession was held to give no title against the lessor. In Doe d. Bennett v. Turner (d), however, the court (y) Randall v. Stevens, 2 Ell. & B. 641; Hodgson v. Hooper, 3 Ell. & E. 149; Locke v. Matthews, 13 C. B., N. S. 753. (z) See Randall & Stevens, 2 Ell. & B. 641. (a) See Randall v. Stevens, 2 Ell. & B. 641; Locke v. Matthews, 13 C. B., N. S. 753. (b) Doe d. Birmingham Canal Co., 11 Q. B. 127. (c) Doe d. Burgess and Harrison v. Thompson, 5 Ad. & E. 532; Doe d. Thompson v. Thompson, 6 Ib. 721. (d) 7 M. & W. 226. Tenancies at will excluded when between -mortgagor and mortgagee; -trustee and cestui que trust; seems to have thought that a continuance of the possession by the tenant, after the determination of the tenancy within twenty-one years from its commencement, for a further period, which, with that of the tenancy, exceeded that term, would bar the lessor. But the case was decided on another ground. Tenancies at will, however, as between mortgagor and mortgagee, and between trustee and cestui que trust (e), are, by the section 7, expressly excluded from it. The statute, said Williams, J. (f), does not intend to alter the relative position of the mortgagor and mortgagee (g). It merely excludes from the sect. 7 such tenancies between them. The precise relation between mortgagor and mortgagee has been the subject of much diversity of judicial opinion (h). The ordinary relation of lessor and lessee at will, in all respects, does not exist (i). An ordinary lessor at will must determine the tenancy before he can recover the possession, but a mortgagee need not. It has been said, however, that the section 7 virtually recognizes the existence, between a mortgagor and a mortgagee, of this relation (j). The object of the statute was not to deal with cases like that of trustee and cestui que trust, where, though there are two parties, there is but one single interestthat of the person beneficially entitled (k); and the statute does not alter their relative position (?). The existence of the relation of lessor and lessee at will between a trustee and his cestui que trust seems to (e) Vide ante, Chap. II. of this Book, Sect. V. (f) 16 C. B. 667. (g) See also Thorp v. Facey, 12 Jur., N. S. 741, 1 H. & R. 678, 35 L. J., C. P. 349, S. C. (h) Vide ante, Chap. II. of this Book, Sect. III. (i) Thorp v. Facey, supra. (j) See Melling v. Leak, 16 C. B. 652. But see Thorp v. Facey, supra. (k) 8 C. B. 250. (1) Per Williams, J., 16 C. B. 667. See also Sturgis v. Morse, 24 Beav. 541; 3 De G. & J. 1, S. C., on appeal. On this case see 13 Ir. Eq. R., N. S. 458. |