Possessio fratris was a seisin to turn the descent away from the brother of the half blood to the sister of the whole blood; thus if a father had two sons, A. and B., by different wives, these two brethren were not brethren of the whole blood, and, therefore, could not inherit to each other, but the estate rather escheated to the lord. Nay, even if the father died and his lands descended to his eldest son, A., who entered thereon and died seised without issue, still B. could not be heir to this estate because he was only of the half blood to A., the person last seised; but it descended to a sister (if any) of the whole blood to A., for in such cases the maxim was that the seisin or possessio fratris made the sister the heiress. Yet, had A. died without entry, then B. might have inherited, not as heir to A. his half brother, but as heir to their common father, who was the person last actually seised. (Wharton's Law Lexicon, 6th ed., 743; 1 Steph. Com., 7th ed., 421.) This doctrine was abolished in 1833 by virtue of 3 & 4 Will. IV., c. 106. In such a case now A. would inherit as heir to B., and on his death, either before or after the death of the common father, B. would inherit in preference to a sister of A. though of the whole blood. The reason for this difference arises from the fact of the half blood, who before 1833, were excluded, being now capable of inheriting. (Williams' Real Property, 11th ed., 109-110. LANDLORD AND TENANT. 98. A tenant, in possession under a term of years, holds over after the expiration of his term, and the landlord subsequently accepts rent from him on the footing of the expired lease. Has such acceptance of rent any and what effect upon any claim which the landlord may have for breach of any of the covenants contained in such expired lease? Give the grounds of your answer. The general rule is that where there is an acceptance of rent subsequent to the breach of any covenant contained in the lease, such acceptance operates as an implied waiver by the landlord of his right of re-entry consequent on such breach, provided the breach is not a continuous breach and provided the landlord had actual notice of such breach at the time of such acceptance. If, as in the above case, the landlord and tenant go on paying and receiving rent as if the old lease had continued after its expiration, the legal effect is that a new tenancy from year to year is thereby created between them upon the same terms and conditions as those contained in the expired lease, so far as the same are applicable to, and not inconsistent with, a yearly tenancy. This, however, appears to be rather a matter of evidence than law. (Woodfall, 11th ed., 204.) Now in the above case the landlord had only the right of entry consequent on the determination of his lease after its expiration, and a claim against the tenant for damages for breach of covenant contained in the expired lease. It seems to us, in the above case, in the absence of any direct authority on the point, that the landlord has not waived his right of entry consequent on the expiration of the lease further than is necessary to give effect to the new tenancy as above stated to be or have been created by them, and that his claim for damages is no more interfered with by such acceptance of rent under the new tenancy than it would be if the tenant under the expired lease and the yearly tenant were not the same but different persons. The tenancy created by the acceptance of rent after the expiration of the lease, is technically not a continuation of the old lease, but a new one altogether; although subject to certain of the old terms. 99. What is the distinction between tenancies by sufferance, tenancies at will, and tenancies from year to year? How do they each arise, and how must each be determined? A tenancy by sufferance arises where a tenant has lawfully entered into possession of his landlord's lands or houses by a lawful title, but has remained in possession thereof after his title has determined. It cannot arise otherwise than by construction of law. A tenancy at will arises where lands are let by one person to another by parol, by deed or construction of law, at the will of the lessor or person letting. A tenancy from year to year arises where lands are let from year to year, so long as neither party gives to the other party half (a) a year's notice, expiring at the end of any current year. A tenancy at sufferance is determined by entry or demand of possession, or by commencing proceedings in ejectment, which latter may be done without any previous demand. A tenancy at will may be determined at any time by the one party declaring by word, writing, or by some act of his (as by the landlord granting a lease for years to a third person of the premises) that he determines his will, and in the case of a tenant he must further carry out his will by also quitting possession. (See Williams' Real Property, 11th ed., 283; Wharton's Law Lexicon, 921, 1022, 1028; Haynes's Student's Leading Cases, 298.) LEASES. 100. A., having a contract only for a lease for ninety-nine years, purported to demise the land to B. by way of mortgage for the whole term less three days. He subsequently acquired the lease, and demised the land to C. for the whole term less three days. What are the respective positions of B. and C.? Give the grounds of your answer. C. has the legal estate in the land for the term. B. has an equitable interest for the term. If C.'s demise was for value, as for instance by his entering into the covenants which lessees usually enter into with or without having paid a premium, and C. had no notice, actual or constructive (and note the recent restrictions on constructive notice by 45 & 46 Vict. c. 39, s. 3), of B.'s interest, the Court will not award any relief against C., though it will not assist him as plaintiff to turn B. out of possession should he have only just entered into possession, whilst C.'s back is turned, on the usual grounds governing such cases. If, however, as will probably be the case, C. had some notice, actual or constructive, of B.'s interest, B.'s title will, though only an equitable one, prevail over C.'s title. (See Mumford v. Stohwasser, 43 L. J. Ch. 694; L. R. 18 Eq. 556.) In that case the facts were:-A builder sold (a) Unless the case is within the Agricultural Holdings Act, 1875. premises to M. when he had only an agreement for a lease. He afterwards obtained a lease and deposited it to Stohwasser, and afterwards gave Stohwasser a legal mortgage of it during the time that a tenant of M. was in possession. The tenant's possession was held to be constructive notice to Stohwasser, and M. was entitled to priority over Stohwasser accordingly. 101. A tenant for life grants a lease of a dwelling-house for a term of ninety-nine years, if he (the tenant for life) should so long live. The lease contains the usual covenants on the part of the lessee. On the death of the tenant for life the remainderman finds the covenants to repair have not been fully performed, and that there are considerable dilapidations. Can he recover for such dilapidations against the lessee? Give the reasons for your answer. Yes, owing to the provisions of 8 & 9 Vict. c. 106, s. 9, and sec. 10 of the Conveyancing and Law of Property Act, 1881. The latter enactment is more comprehensive and simple than the former, and provides in effect that rent reserved by a lease, and the benefit of the lessee's covenants or provisions therein contained, having reference to the subject-matter thereof, shall be annexed; and shall go with the reversionary estate in the land or any part thereof immediately expectant, on the term granted by the lease, notwithstanding the severance of that reversionary estate, and shall be capable of being recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased. (Clerke and Brett's Conveyancing and Law of Property Act, p. 55.) The provisions of 14 & 15 Vict. c. 25, s. 1, do not apply to such a case as this, because that Act was only intended to provide for the case of a tenant at a rack rent, whose interest in the land determined by his landlord's death and his tenancy was not expressly created only to exist so long as the landlord should live, as in this case. Here the tenant took his lease upon that understanding. The case is not likely to arise now, owing to the provisions of the Settled Estates Act, 1877, and the Settled Land Act, 1882, giving the tenant for life powers of leasing in such a manner as to bind the inheritance. 102. A mining lease contains a clause that the lessee may work the mine" in the usual and most approved way in which the same is performed in other works of the like kind in the country." The mine was worked in such usual and approved manner, but by reason of such working the owner of the surface sustained damage through its subsidence. Is he entitled to recover damage against the lessee of the mine, or does the above clause protect him? way Yes, he is entitled to recover damage against the lessee of the mine, for by a covenant to work mines "in the usual and most approved in which the same is performed in other works of the like kind in the county of G.," it was not meant such a mode of working as would let down the surface, and therefore the lessee is not absolved from his legal obligation to support the surface. The above clause therefore does not protect him. (Davis v. Treharne, 50 L. J. (H. L.) Q. B. 665; L. R. 6 H. L. App. Cas. 460.) 103. What effect has the disclaimer of a lease by the trustee in bankruptcy of the lessee upon the lessor, the lessee, and any person claiming under the lessee as sub-lessee? How far does the original lessee continue liable under his covenants in the event of the bankruptcy of his assignee, whose trustee disclaims? Sect. 23 of the Bankruptcy Act, 1869, provides that "When any property of the bankrupt acquired by the trustee under that Act consists of land of any tenure burdened with onerous covenants, the trustee, notwithstanding he has endeavoured to sell or has taken possession of such property, or exercised any act of ownership in relation thereto, may, by writing under his hand, disclaim such property, and upon the execution of such disclaimer the property shall, if the same is a lease, be deemed to have been surrendered on the same date. Any person interested in any disclaimed property may apply to the Court, and the Court may order possession of the disclaimed property to be delivered up to him or make such other order as to the possession thereof as may be just, and any person injured by the operation of this section shall be deemed to be a creditor of the bankrupt to the extent of such injury, and may accordingly prove the same as a debt under the bankruptcy." And sect. 24 enacts that "The trustee shall not be entitled to dis |