Nos. 1, 2.

-Allen v. Hill; Richardson v. Langridge. —Notes.

v. Waite, 12 id. 300; Curtis v. Galvin, 1 Allen (Mass.), 215; Pratt v. Farrar, 10 id. 519; Emmes v. Feeley, 132 Massachusetts, 346; Hooton v. Holt, 139 id. 54; Streeter v. Ilsley, 147 id. 141; Lash v. Ames, 171 id. 487; Taylor v. O'Brien, 19 Rhode Island, 429; see German State Bank v. Herron (Iowa), 82 Northwestern Rep. 430. A lessee under a lessor who has a mere life estate is charged with notice of his landlord's title, and, upon the latter's death, he becomes at once a tenant at sufferance. Peters v. Balke, 170 Illinois, 304; Guth

mann v. Vallery, 51 Nebraska, 824.

A tenant is sometimes justified in holding over after his term has expired, as where the landlord has agreed to buy his erections on the land, in which case he can hold lawfully, by paying the rent, until that agreement is performed. Franklin Land Co. v. Card, 84 Maine, 528. A tenant who continues to occupy the land, with an agreement, express or implied, for a new lease, is a tenant at will until the lease is executed. Emmons v. Scudder, 115 Massachusetts, 367; Utah Optical Co. v. Keith, 18 Utah, 464. If one, entering upon land under a void verbal lease, pays rent at regular intervals, he is a tenant from year to year or from month to month. Brownell v. Welch, 91 Illinois, 523; Marr v. Ray, 151 id. 340; Tuttle v. Langley, 68 New Hampshire, 464; McIntosh v. Hodges, 110 Michigan, 319; Barrett v. Cox, 112 id. 220; Vernon v. Gilbert, 61 New York Supplement, 896; Koplitz v. Gustavus, 48 Wisconsin, 48; Williams v. Ackerman, 8 Oregon, 405; see McMaster v. New York Life Ins. Co., 90 Federal Rep. 40. One who enters upon the occupation of land under a contract of purchase which contains no stipulation for rent, does not become the owner's tenant or liable for rent, without a new agreement to that effect, if it turns out that such owner cannot give him a good title. Ankeny v. Clark, 148 United States, 345; Moore v. Smith, 56 New Jersey Law, 446; Dean v. Comstock, 32 Illinois, 173; Foley v. Wyeth, 2 Allen (Mass.), 131; Dunham v. Townsend, 110 Massachusetts, 440; Barton v. Smith, 66 Iowa, 75; Davis v. Phoenix Ins. Co., 111 California, 490. If the owner of land and another occupy it jointly by agreement, the latter is not a tenant at sufferance. Johnson v. Carter, 16 Massachusetts, 443, 446; see Kimbrough v. Kimbrough, 99 Georgia, 134. The tenant is none the less a tenant at sufferance because in the written lease under which he entered, he agreed to peaceably yield up the premises at the expiration of his term, and beyond such term, so long as he should hold the premises, to continue to pay the stipulated rent. Edwards v. Hale, 9 Allen (Mass.), 462. In New York, it is held that a holding over by one of several partners under a lease made to the firm, the other partners retiring, does not so renew or continue the tenancy after the expiration of the original term as to entitle such partner to the benefit of a covenant for renewal in the lease. James v. Pope, 19 New York, 324; Buchanan v. Whitman, 151 id. 253, 257. A mortgagor, who by agreement holds the property until condition broken, is a tenant at sufferance to the mortgagee, if he holds over after condition broken. Mayo v. Fletcher, 14 Pickering (Mass.), 525, 531; Kinsley v. Ames, 2 Metcalf (Mass.), 29; Hollis v. Pool, 3 id. 350; Woodside v. Ridgeway, 126 Massachusetts, 292.

One important distinction between a tenancy at will and a tenancy at sufferance is that in the former the tenant is entitled to notice to quit or demand

No. 1. In re Jones.- Rule.

for possession, and in the latter not. Ellis v. Paige, 1 Pickering (Mass.), 43; Howard v. Merriam, 5 Cushing (Mass.), 563, 571; Whitney v. Gordon, 1 id. 266; Kinsley v. Ames, 2 Metcalf (Mass.), 29; Evans v. Reed, 5 Gray, 308; Gladwell v. Holcomb, 60 Ohio State, 427; Klingenstein v. Goldwasser, 58 New York Supplement, 342; Blanchard v. Bowers, 67 Vermont, 403; Chapman v. Tiffany (N. H.), 47 Atlantic Rep. 603; Peters v. Balke, 170 Illinois, 304; Belinski v. Brand, 76 Illinois Appeals, 404; Paget v. Electrical Engineering Co. (Minn.), 84 Northwestern Rep. 800; Corby v. McSpadden, 63 Missouri Appeals, 648; Howard v. Blanton (Ky.), 49 Southwestern Rep. 461; Davis v. Carew, 1 Richardson (S. C.), 275; Stewart v. Murrell, 65 Arkansas, 471.

At common law a tenant at sufferance is not liable to pay rent, though the landlord may recover damages in tort for the detention of the premises. Flood v. Flood, 1 Allen (Mass.), 217; Sargent v. Smith, 12 Gray (Mass.), 426; Hogsett v. Ellis, 17 Michigan, 351, 368. But now, by statute, he is liable to pay rent in Massachusetts, and in New York, South Carolina, and Georgia, double rent, if he does not deliver up the premises according to a notice to quit given to him. Public Statutes of Massachusetts, c. 121, s. 3; 1 Revised Statutes of South Carolina, s. 1940; 2 Code of Georgia (1895), s. 3124. See Bunton v. Richardson, 10 Allen (Mass.), 260; Weston v. Weston, 102 Massachusetts, 514; Pettis v. Brewster, 94 Georgia, 527; Regan v. Fosdick, 43 New York Supplement, 1102.

TENANT FOR LIFE.

[And see APPORTIONMENT," 3 R. C. 282 et seq.; and see No. 1, "SETTLED LAND ACTS," 24 R. C. 42 et seq.]

THE present beneficial right to the unencumbered income (if any) of land is characteristic of and essential to the estate of a tenant for life, or person having the powers of a tenant for life.

No. 1.In re Jones, 26 Ch. D. 736, 737.

In re Jones.

[736]

26 Ch. D. 736-744 (s. c. 53 L. J. Ch. 807; 50 L. T. 466; 32 W. R. 735).

Settled Land Act, 1882 (45 & 46 Vict. c. 38), s. 2, sub-ss. 5, 7, 10, cl. (i.); s. 58, sub-s. (1), cl. (ix.). Limited Owner. - Power of Sale. "Person entitled to the income of land."

-

Subject to a term for raising certain sums, freehold estates were devised to the use of trustees during the life of A., with remainders to the use of A.'s children and issue. The trustees of the life estate were directed to enter into possession of and manage the property, pay outgoings, keep down the interest on encumbrances, and during A.'s life to pay out of the residue an annuity of £400 to the person next entitled in remainder, and to pay the ultimate residue to A. The estates were so heavily encumbered that after payment of outgoings and interest there was not enough to pay the annuity of £400. A. therefore had received nothing, and there was no prospect of his receiving anything for many years:

Held (affirming the decision of BACON, V.-C., 24 Ch. D. 583), that A. was a person entitled to the income of land under a trust or direction for payment thereof to him during his life, subject to expenses of management, within the meaning of the Settled Land Act, 1882, s. 58, sub-s. (1), clause (ix.), and therefore possessed the power of selling given by the Act to tenants for life.

In this case a testator devised his estates, which were heavily encumbered, to trustees for a term of 2000 years, upon trust to raise a sum of £30,000 which was to be held in trust for his wife for life, and upon trust to raise a further sum of £15,000 for the purposes therein mentioned, and subject thereto he devised the estates to the use of a second set of trustees during the life of his son-in-law, Colonel Grey, upon the trusts therein mentioned, and after the decease of Colonel Grey to the use of Colonel Grey's sons by the testator's daughter successively for life, with remainders in tail to their sons. The trustees of the life estate were to enter into possession of and manage the property, and receive the rents, keep down the interest on all encumbrances, pay £400 a year for the benefit of the son of Colonel Grey's deceased wife, who should for the time being be entitled to the first estate expectant on the death of Colonel Grey, and to pay the surplus

of the rents to Colonel Grey for life. The trustees of the [*737] life* estate had a power of sale and exchange exercisable with the consent of Colonel Grey during his life.

The rents of the property, after payment of interest on encumbrances, were not sufficient to pay the £400 a year to the first

No. 1.—In re Jones, 26 Ch. D. 737, 738.

tenant in remainder. There was, therefore, no income for Colonel Grey, nor was there any probability of any for many years to come. The question was whether under these circumstances Colonel Grey had the powers of a tenant for life under the Settled Land Act, 1882. Vice-Chancellor BACON decided in the affirmative. The surviving trustee appealed, and the appeal was heard on the 17th and 19th of May, 1884.

Oliver A. Saunders, for the appellant:

The Act gives powers of sale to tenants for life, and to persons who are put by the Act in the position of tenants for life. Among these are persons "entitled to the income of land." A person cannot be entitled to the income of land if there is no income to receive, he cannot be entitled to that which does not exist. Here Colonel Grey has never received any income, and there is no probability of there being any for him to receive. He therefore does not come within the Act.

Marten, Q. C., and Northmore Lawrence, contrà :

The scope of the Act is that, so far as possible, there should always be a person capable of exercising the powers given by the Act to a tenant for life. Sect. 2 deals with the simple case of ordinary tenants for life. Then sect. 58 places in the position. of tenants for life, for the purposes of the Act, many persons who do not answer that description, the object manifestly being to confer the powers upon almost every person having a limited. interest in possession. Sect. 2, sub-sect. 7, shows that encumbrances are to be left out of the case. One object of the Act was to enable encumbered estates to be sold so that something might be got out of them, and that enactment shows that actual receipt of income was not contemplated. The case may fairly be held to come within sect. 2, sub-sect. 5, inasmuch as by sect. 2,

sub-sect. 10, clause i., "possession" includes receipt of [* 738] income; but if not, it comes within sect. 58.

Saunders, in reply:

[COTTON, L. J. In sect. 58, does not "entitled to the income of land" mean "entitled according to the limitations of the settlement," without regard to encumbrances ?]

It was intended by the Act to give the powers to a person who had a substantial interest in the property. The limitations of the settlement are not the only thing to be looked to, as is shown by giving the power to a tenant by the curtesy.

I am of opinion that the conclusion at which the VICE-CHANCELLOR has arrived is correct. It is no part of the duty of the Court to criticise an Act of Parliament; it is our duty to construe it, and then to apply it to the circumstances of the case brought under our consideration. The object of this Act clearly was to create powers of sale in many cases in which previously no power of sale existed, and to give additional powers in other cases where there were limited powers under existing settlements. The title of the Act is "An Act for facilitating Sales, Leases, and other Dispositions of Settled Land, and for promoting the Execution of Improvements thereon." In many cases we are able to collect the intentions of the Legislature from the terms of the preamble. There is here no preamble, so to find out the intention we must bear in mind what the state of the law was when the Act passed, and then consider the language of the enactments. Now it may well happen that an estate may be so heavily encumbered, that there is no surplus rent after the interest on the encumbrances is kept down, and in that case practically the person who is the tenant for life according to the terms of the settlement derives no benefit from the estate. That was especially the case at the time of the passing of this Act, when the ordinary rate of interest was 3 per cent, or, under favourable conditions, 4 per cent, whereas the ordinary rent derived from agricultural ground

barely exceeded 2 per cent. Now I should draw the in[739] ference from the terms of this Act of Parliament that one

main object was to provide for the clearing of estates from encumbrances under such circumstances, for the 21st section of the Act provides that the proceeds of sale shall be applied in one or more of the modes therein mentioned, one of them being "in discharge, purchase, or redemption of encumbrances affecting the inheritance of the settled land, or other the whole estate the subject of the settlement." It was very common in settlements at that time to confer a power of sale upon the tenant for life with the consent of the trustees, or upon the trustees with the consent of the tenant for life. Thus the concurrence of the trustees and the tenant for life was required before the sale could be effected. Under these circumstances where tenants for life and trustees did not pull together, sales could not be effected, and the opportunity of improving an estate might be lost for many years. In my own