be generally admitted (m), and seems to be recognized by the section 7, not less than between a mortgagor and a mortgagee. In Melling v. Leak (n) Williams, J., said he did not assume the section 7 to show that the cestui que trust is tenant at will to the trustee (o). In the case of trustee and cestui que trust the language of the section 7 is equivalent to saying that the right of entry of a trustee against his cestui que trust shall not be deemed to have first accrued at the expiration of one year next after the commencement of the tenancy; and the exception seems to have been introduced in order to prevent the necessity of any active steps being taken by a trustee to preserve his estate from being destroyed, as in the case of an ordinary tenancy at will, by mere lapse of time. The intention appears to be, to put the estate of a trustee in a better state, in this respect, than that in which the estate of an ordinary lessor is, as against his tenant at will (p). The tenancies at will arising between trustee and cestui que trust, which are excluded by the proviso from this section, are in those cases where the trust is express only (q); and, even in these cases, where the cestui que trust is himself in the actual possession (r), and not where he is a mere bailiff or agent of the trustee in the letting and management of the property to, and in the possession of, other persons (s). where the trust is express; but not only. The tenancies at will which arise in those cases where the trust is implied, or arises by construction of where implied equity, are not so excluded, but are within this section. As where a contract is made for the sale and purchase of land, not creating a tenancy from year to year at a (m) Vide ante, Chap. II. of this Book, Sect. III.; Garrard v. Tuck, 8 C. B. 231. (n) 16 C. B. 652. (0) But see Garrard v. Tuck, 8 C. B. 253. (p) 8 C. B. 253. (1) Doe d. Stanway v. Rock, 1 Car. & M. 549; 4 Man. & G. 534. (r) Garrard v. Tuck, supra. Tenancies from year to year or other period without lease in writing. yearly rent (t), and the purchaser is let into possession, a tenancy at will is created, but, according to one case (u), not until the contract is at an end (x). In Toft v. Stephenson the purchaser entered into possession, and shortly afterwards entered into a sub-contract for sale of part of the land, and delivered the possession to the sub-purchaser, and thus determined the tenancy (y). The case, however, was not decided, or even discussed, in relation to the creation and determination of a tenancy at will. So where land is purchased by one person in the name of, and is conveyed to another, and the purchaser takes possession (z), or where a contract is entered into for a lease, and, pending the execution of the lease, the intended lessee is let into possession (a), and there is no payment of rent in such a mode as to create a tenancy from year to year (b), a tenancy at will between the person to whom the land is conveyed and the purchaser, in the former case, and between the intended lessor and the intended lessee, in the latter case, arises. In the case of a tenancy from year to year or other period without any lease in writing, the right of the person entitled to the land or the rent, subject to such tenancy, first accrues at the determination of the first of such years or other periods, or at the last time when any rent payable in respect of such tenancy has been received, whichever last happens (c), although, inde (t) Saunders v. Musgrove, 6 B. & C. 524. (u) Howard v. Shaw, 8 M. & W. 118. (x) Repley v. Waterworth, 7 Ves. 425; Doe d. Tomes v. Chamberlaine, 5 M. & W. 14; Howard v. Shaw, supra; Roe d. Blair v. Street, 4 Nev. & M. 42; Doe d. Stanway v. Rock, supra; Toft v. Stephenson, 7 Hare, 1, 1 De G., M. & G. 28, on appeal. (y) Vide supra. (2) Lamplugh v. Lamplugh, 1 P. W. 111. (a) Doe d. Landsell v. Gower, 17 Q. B. 589; Braythwaite v. Hitchcock, 10 M. & W. 494. See also Davis v. Shepherd, 35 L. J., N. S. 581. (b) Knight v. Bennett, 3 Bing. 361; Braythwaite v. Hitchcock, supra. (c) Sect. 8, 3 & 4 Will. 4, c. 27. pendent of the statute, in strictness, there would not be necessarily any right to enter at either of these periods (d). and tenancies at will. The time when the right first accrues, in this case, Difference as differs from the time when the right first accrues in the to accruer of right between case of a tenancy at will. In the latter case, as just these tenancies shown, the accruer is in an alternative event, the determination of the tenancy either by the party or by the statute itself, whilst here the accruer is on whichever of two events last happens, that is, either on the determination of the first period of the tenancy or on the last payment of the rent in respect of it (e), more than, although the death of the landlord happened within twenty years before the action brought (ƒ), and although the last payment of the rent was more than twenty years before the passing of the act (g). The remark already made as to the lease of a rent at Of a rent. will is equally applicable to such a lease when for years, which is also contemplated by the sect. 8, and in it the term rent is used both in the sense of a rent of inheritance as distinct from the land, as in the sect. 1, and of a rent reserved on a common demise (h). tenancies Independently of express contract, a tenancy from How yearly year to year may be created by implication, as by pos- created. session under a demise, void as a lease by reason of the Statute of Frauds, and paying rent accordingly (i), or perhaps even without paying it (j), or, if the lease be in writing, but not by deed (k), or, when for less than three years, the rent reserved does not amount to two-thirds, at least, of the improved value of the demised pre (d) See Owen v. De Beauvoir, 16 M. & W. 547. (e) See 16 M. & W. 561. (f) Baines v. Lumley, 16 W.R. 674. (g) Doe d. Jukes v. Sumner, 14 M. & W. 39. (h) 9 Q. B., N. S. 356; Baines v. Lumley, 16 W. R. 674. (i) See Doe d. Rigge v. Bell, 5 T. R. 471; Richardson v. Gif- (j) See Knight v. Bennett, 3 (k) 8 & 9 Vict. c. 106, s. 3. A writing on an interest. mises (k); or by the determination of the estate of the lessor (1), or of the lessee (m), and the tenant continuing the possession and paying the rent to the person entitled to the reversion, the tenancy from year to year may be considered as commencing, either from the time of the original contract, or with any particular year of the tenancy (n); or as recommencing every year (0), and perhaps as a continuing tenancy. If the tenancy be under a lease in writing, that is, not must not create merely an instrument which would be evidence of the conditions of holding, but one passing an interest, the tenancy is not within the sect. 8. If not under such a lease, but only an instrument amounting to such evidence merely, or to a mere agreement for a lease, and the holding be for a determinate period, either express or implied, the tenancy would be within this section, determinable at the end of the first period, or on the last receipt of the rent. Therefore, where a tenancy is thus created from month to month, by implication, and no rent is paid in respect of the tenancy, the right first accrues at the end of the first month, and is barred on the expiration of twenty years from that time (p). Accruer on underletting by yearly tenant. Where a tenant from year to year or other definite period underlets, gives possession to the under-tenant, and makes the last payment of rent within twenty years before action brought to recover the land, and the undertenant, within that period, admits his tenancy but pays no rent, and holds possession for more than twenty years, the right of the original lessor first accrues on (k) Stratton v. Pettitt, 16 C. B. 420; Lee v. Smith, 9 Ex. 663; Tress v. Savage, 4 Ell. & B. 36; Davis v. Jones, 17 C. B. 632; Taswell v. Parker, 2 De G. & J. 559; Bond v. Rosling, 1 Best & S. 371; Burton v. Reevell, 16 M. & W. 307. (1) Oakley v. Monck, 4 Ex., N. S. 251. (m) See Archbold v. Scully, 9 H. L. C. 348. (n) See Cattley v. Arnold, 1 John. 651, and the cases there cited. (0) Per Patteson, J., 8 Car. & P. 729. (p) See Doe d. Landsell v. Gower, 17 Q. B. 589; also Ley v. Peter, 3 Ex., N. S. 101. such payment, and is not affected by such possession; and his title being valid against his tenant, the undertenant, after such admission, cannot dispute that title (q). in section 8. A person holding of parish officers a house, in con- What is such sideration of the performance of a service, as cleaning a tenancy withthe parish church (r), or ringing the church bell (s), is a tenant from year to year within the sect. 8; and the service being performed, the right accrues from the last time of the performance. The rent payable and receivable by and from the What is rent tenant under the sect. 8, may be, either in money, that section. payable under or in services to be performed by him, as sweeping a church (t), or ringing a church a bell (u), or keeping up a grindstone for the lessor, but not for a stranger (x). The rent payable and to be received within the sect. 8 is to be in respect of the tenancy contemplated by that section, and as for rent due for the property held under the tenancy-Quicquid solvitur, solvitur secundùm animum solventis; and if, on looking to the facts of the case, it is plain that the payments have been made secundùm animum solventium, not for rent, but on another account, the doctrine of estoppel arising from payment of rent has no place. Where, therefore, a tenancy is disputed, the circumstances connected with the annual payments are most important, for if the person paying made the payments, expressly or impliedly, on account of something else than rent of land of which he is the tenant, this would not be a payment of rent within the meaning of this section, and a defence founded on the statute would be a complete bar (y). (q) Doe d. Earl Spencer v. Beckitt, 4 Q. B. 601. (r) Doe d. Edney v. Benham, 7 Q. B., N. S. 976. Ib. (8) Doe d. Edney v. Billett, (t) Doe d. Edney v. Benham, supra. (u) Doe d. Edney v. Billett, supra. (a) See Doe d. Robinson v. (y) Att.-Gen. v. Stephens, 6 |