was to be determined by some competent person,1 and, again, where the lessee agreed to accept a lease on condition that the premises were put into repair,2 it was held that no lease had been created. But, on the other hand, the use of the words "agree to let," although with a stipulation that a lease and counterpart should be prepared, has been held to create a present demise. Since the passing of the act such questions cannot arise as to writings, except where the term does not exceed three years, but may still do so as to deeds in cases where the wording of the deed is very ambiguous. If the lease is for an alternative period, such as for seven, fourteen, or twentyone years, the lessee alone has the option of putting an end to it at the expiration of either of these Lessee must terms.4 It is necessary that a tenant under an ordinary lease should enter upon the property, otherwise he will not have term but only an interesse termini or right to enter.5 enter. Long terms of years. It should be here noticed that terms of years may be created for purposes other than the existence of the ordinary relation of landlord and tenant. When estates for years received the same protection as other estates it was soon discovered that, besides answering the purpose of short leases, they might, from their peculiar nature, when extended in duration, be applied with advantage in the settlements and complicated arrangements of real property, which became necessary in the advancing state of civilization.6 The manner in which long terms of years are used for this 1 Jones v. Reynolds, 1 Q. B. 506. 2 Doe v. Clarke, 7 Q. B. 211. 4 Price v. Dyer, 17 Ves. 356, 363. 8 Doe v. Ries, 8 Bing. 178. 5 [The consequence is that such lessee may be deprived of his term by a subsequent sale or lease to one who has no notice of the prior lease.] 6 Watkins's Principles of Conveyancing, 45. purpose will be more fully considered at the end of this chapter; at present we will confine our attention to terms of years created for the benefit of an ordinary lessee, and observe the rights and obligations which they confer and impose in the absence of any stipulation between the parties; questions as to the ordinary form and effect of such stipulations being reserved for a subsequent part of our work. an estate for Service. In considering the incidents of such an estate, the Incidents of first to be noticed is the payment of rent to the lessor years. by the lessee. This rent, when it exists, is properly Rent or Rentcalled a Rent-Service, and is an annual return made by the tenant in retribution for the land that passes to him. It may be paid either in labor, money, or provisions; but is, at the present day, almost universally paid in money. incident to There is always an implied obligation on the part Rent Service of the lessee to render rent-service to the reversioner, the reversion. and rent is, therefore, said to be "incident" to, or follow the reversion. The amount payable is presumed, in the absence of stipulation, to be equivalent to the annual value of the premises occupied, but it is the almost universal practice for the parties themselves to agree upon the precise amount of rent to be paid. A consequence of the rule that rent is incident Former conto the reversion was, formerly, that if the reversion the rule. were destroyed, the rent incident to it was destroyed also. Now it is a rule of law when two estates immediately reversionary to each other meet in the same person, in the same right, that the one which gives the title to possession, unless it is an estate tail, will, if less in quantity than the reversion, be merged or drowned in the other, and become extinct.2 If, 1 Gilbert on Rents, 9. 2 Watkins's Principles of Conveyancing, 54. sequence of 4 Geo. II. c. 28. therefore, a tenant for life, or for years, of land makes a lease and afterwards acquires the fee-simple of the same land, his tenancy for life, or for years, is merged in the fee-simple, and before the passing of the act to be presently mentioned the rent reserved by the lease would have been extinguished, because the reversion to which it was incident had ceased to exist; the same fate would have also attended the covenants of the lease. Thus, it was held in one case 1 that a tenant for years, who had made a lease out of his estate for years, and subsequently taken a conveyance of the fee-simple of the same lands, could not maintain an action against his lessee for breach of covenant to pay rent and to repair the premises, since the acquisition of the fee-simple had merged his former reversion, and that being gone the covenants incident to it had also become extinguished. But, notwithstanding this, the lessee continued to be entitled to hold his land for the remainder of the term granted to him, since the merger of the reversion was no act of his, and it could not be permitted that a lessor should be able, by any voluntary acts, to defeat his own grant.2 Again, if a tenant for years made an under-lease, and afterwards surrendered his own. lease to his lessor in order to have it renewed, either to himself or to another person, the benefit of the rent and covenants contained in the under-lease was lost. This last hardship was remedied by the 4 Geo. II. c. 28, which enacted that when a lease was surrendered, in order to be renewed, the new lessee should be in the same position as if the original lease had been kept on foot; and now it is provided by the 1 Webb v. Russell, 3 T. R. 393. 2 Sutton's Case, 12 Mod. 557, 558. 3 S. 6. Act. 9th section of the Real Property Amendment Act,1 Real Property that when any reversion expectant on a lease, made Amendment either before or after the passing of the act, is surrendered, or merged in a greater, the next estate is to be deemed the reversion, for the purpose of preserving such incidents and obligations as would have subsisted, but for the surrender or merger. must be Rent-service must issue out of the thing demised, How rent and must be reserved out of lands or tenements to reserved. which the lessor can have recourse, and therefore (except in a demise by the Crown) cannot be reserved out of any incorporeal inheritance,2 nor out of goods. Consequently if rent is reserved out of two things, only one of which is capable of supporting rent, it will be presumed that all the rent was reserved out of that. It must also be reserved to the lessor himself, and not to a third party. Moreover it must be certain, but will be considered certain if capable of being reduced to certainty. rent. If these precautions are not attended to, the lessor Distress for will lose his common-law right of Distress, that is, a right to enter upon the demised premises between the hours of sunrise and sunset and seize any corn, grass, or other product growing on any part of the land demised, and also (subject to the exceptions to be presently noticed) any personal chattels found on the premises. The lessee must then either pay all rent due, and the costs incurred in the seizure, or, if 18 & 9 Vict. c. 106. 3 Spencer's Case, 5 Rep. 16a. 4 Farewell v. Dickenson, 6 B. & C. 251. 2 Co. Litt. 47a. 5 Chetham v. Williamson, 4 East, 469; Gilbertson v. Richards, 4 H. & N. 277. • Daniel v. Gracie, 6 Q. B. 145. Tutton v. Darke, 5 H. & N. 647. 8 11 Geo. II. c. 19, § 8. Chattels exempted from distress. Lodgers' Goods Protection Act. he disputes the lawfulness of the seizure, he must Any bal The chattels privileged by common law from distress are (1) Fixtures or things annexed to the freehold; (2) goods delivered to any person exercising a public trade or employment, to be carried, wrought, or managed in the way of his trade or employ, including goods left in a warehouse until sale," or pledged with a pawnbroker, or left at a depository warehouse to be taken care of; and (3) implements of trade, if in actual use at the time. It is also provided, by a recent statute, that any lodger whose goods are seized for rent due by the immediate tenant may serve the landlord, or any person employed by him to levy the distress, with a declaration in writing setting forth that the immediate tenant has no interest in such goods, and that they are the property, or in the lawful possession of, the lodger; and thereupon, and upon payment of the rent (if any) due by 1 Replagiare, to take a pledge. 2 See as to this 19 & 20 Vict. c. 108, §§ 63-76. 3 2 Wm. & M. c. 5, § 1. 4 Gisbourn v. Hurst, Salk. 249. 5 Thompson v. Mashiter, 1 Bing. 283. • Swire v. Leach, 18 C. B. N. s. 479. 7 Miles v. Furber, L. R. 8 Q. B. 77. 8 Simpson v. Hartopp, Willes, 512. |