tenants, or between the outgoing tenant and the landlord, are impliedly annexed to the express terms of the lease, such as allowances for manuring, tilling, fallowing, and sowing the land; for seeds, and labour, foldage, and manure. (g) The tenant's rights to growing crops and produce are in all cases strictly confined to annual crops or the first year's produce of seeds and roots sown or planted by him during the last year of his tenancy, and does not extend to trees, shrubs, and plants of a perennial character, (excepting the fruit-trees, plants, and shrubs of seedsmen and nursery gardeners,) an exception introduced for the benefit of trade. (h) Thus a border of box, planted by a tenant in a garden demised to him, cannot be taken up and removed at the expiration of his term, (i) nor a strawberry bed, (k) nor hedges, nor fruit trees. (1) Of the tenant's right to remove superstructures and fixtures erected by him upon the demised premises.-Buildings and constructions of a permanent character, erected upon the demised premises by the tenant and attached to the freehold, are irremovable by him, unless they have been erected for trading purposes. Quicquid solo plantatur solo cedit.(m) Such are pillars of brick and mortar, built on the floor of a dairy by the tenant to sustain pans; (n) also barns and beast-houses, waggon-houses, fuel-houses, pigeon-houses, carpenter's shops for mending waggons and carts, and agricultural implements employed and used upon the farm, and let into the ground, and not merely placed on the surface thereof or on a brick or stone floor; (o) also a conservatory, hot-house, or greenhouse, erected on a brick or stone foundation, and attached thereto by permanent fastenings. (p) If the tenant raises and constructs foundations of a permanent character for the reception of a superstructure of wood, such as a windmill, a pump, a Dutch barn or granary, a pigeon or fowl-house, or a conservatory, and the superstructure merely rests on this foundation or is attached thereto by screws or moveable pins or bolts, so as to be removable at pleasure without material or permanent injury to the freehold, the foundation belongs to the landlord as part and parcel of the land, and the (g) Dalby v. Hirst, 3 Moore, 536. Hutton v. Warren, 1 M. & W. 477; ante, 151-153. (h) Lord Kenyon, C. J., 2 East, 90; Heath, J., 4 Taunt. 316. Wardell v. Usher, 3 Sc. N. R. 508. (i) Empson v. Soden, 4 B. & Ad. 655. (k) Wetherell v. Howells, 1 Campb. 227. (1) Wyndham v. Way, 4 Taunt. 316. (m) Mackintosh v. Trotter, 3 M. & W. 186. (n) Leach v. Thomas, 7 C. & P. 327. (o) Elwes v. Mawe, 3 East, 38; 1 Smith's Leading Cases, 99-121. Wood v. Hewett, 10 Jur. 390. (p) Buckland v. Butterfield, 4 Moore, 440; 2 B. & B. 54, s. c. moveable structure placed on such foundation by the tenant continues the property of the latter, and may be carried away by him at the expiration of his lease. (7) Trade fixtures.--Sheds, buildings, and erections, constructed by the tenant upon the demised premises for the purpose of carrying on trade, such as engine-houses of wood and brick, with chimneys and roofs erected to protect machinery used by the tenant in his trade, may be severed and removed; and so also may the varnish-houses and sheds of the varnish manufacturer, and the hot-houses and green-houses, &c. of the gardener and nurseryman. Amongst the various trade fixtures now held to be removable by the tenant, are soap-boilers, furnaces, fat vats, coppers, dying and brewing vessels, cider mills, baking ovens, steam-engines, and salt pans. (") Ornamental fixtures.—The tenant is also entitled to sever and carry away with him at the expiration of his term all ornamental fixtures, such as chimney-glasses, pier-glasses, ornamental chimney-pieces and stoves, tapestry and hangings nailed to the walls in lieu of ornamental paper or panels, (s) and ornamental cornices capable of being detached without substantial injury to the freehold. (t) The things removable are often determined and regulated by local custom and usage. In some counties, barns and granaries erected on stone pillars, or on pattens or blocks of timber, are always considered to be the goods and chattels of the tenant who has erected them, and are by custom and usage removable by him at the expiration of his lease. (u) If the tenant has entered into an express covenant to yield up at the expiration of his term "all erections and buildings that may be erected," or "all improvements that may be made" upon the demised premises, he cannot afterwards remove trade erections or buildings, or trade or ornamental fixtures. (a) And whenever he has a right of removal, he must exercise such right prior to the determination of his tenancy; he cannot after he has once quitted the demised premises, re-enter for the purpose of severing and removing fixtures. After the 66 (q) Grymes v. Boweren, 4 M. & P. 143; 6 Bing. 437, s. c. Rex v. Otley, 1 B. & Ad. 161. Wansborough v. Maton, 4 Ad. & E. 884. Davis v. Jones, 2 B. & Ald. 165. Rex v. Londonthorpe, 6 T. R. 377. (r) 42 Ed. 3, fol. 6, pl. 19; 20 Hen. 7, fol. 13, pl. 24. Poole's case, 1 Salk. 368. Lawton v. Lawton, 3 Atk. 13. Penton v. Robart, 2 East, 90. Amos and Ferrard on Fixtures. Grady on (s) Beck v. Rebow, 1 P. Wms. 94 Fixtures. Leach v. Thomas, 7 C. & P. 327. (t) Avery v. Cheslyn, 3 Ad. & E. 75. (u) 11 Vin. Abr. 154, Executors U. pl. 74. Culling v. Tufnel, Bull. N. P. 34. (x) Naylor v. Collinge, 1 Taunt. 19. Thresher v. E. L. Waterworks Company, 2 B. & C. 608; 4 D. & R. 62, s. c. Martyr v. Bradley, 2 M. & Sc. 25; 9 Bing. 24, s. c. Administratrix of Penry v. Brown, 2.Stark. 403. West v. Blakeway, 3 Sc. N. R. 218. term they become a gift in law to him in reversion, and are not removable." (y) General DUTIES, OBLIGATIONS, and LIABILITIES of the LESSOR and LESSEE. Liability of THE LESSOR.-From every contract of hiring and letting there results by implication of law, as we have already seen, a covenant or promise on the part of the lessor to put the lessee into possession of the subject matter of the demise, and clothe him with a lawful title to hold and enjoy it during the continuance of the term for which it is granted to be enjoyed. (2) The usual express covenant by the lessor, that the lessee shall peaceably and quietly possess and enjoy the demised premises without any let, suit, trouble, or disturbance by the lessor, his heirs, &c., or any person claiming under him or them, is not broken by an entry on the tenant by the land-tax collector, to distrain for arrears of land-tax due from the lessor. (a) Liability of THE LESSEE -Non-acceptance of POSSESSION and nonpayment of RENT.-A contract for the letting and hiring of realty, being a contract for an interest in land, comes, as we have already seen, within the fourth section of the Statute of Frauds, which enacts that no action shall be brought upon any contract for an interest in land, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. (Ante, 91.) A lessee, therefore, who has contracted orally for the hire of realty, and who neglects or refuses to accept possession of the demised premises, cannot be sued upon such oral agreement for damages for not taking possession, nor upon any oral promise to pay rent; neither can he be sued for use and occupation. (b) If, however, the lease has been created by simple contract in writing for a term not exceeding three years, and has been made subsequently to the first of October, 1845, and a fixed rent has been reserved, or the lessee has agreed to pay a certain specified rent, he may then be sued upon such written contract, either for not taking possession of the demised premises, or for non-payment of the rent; and although the lease (by reason of its not having been made by deed) may be void as to the duration of the term, yet if the intended (y) Per Holt, C. J., 1 Salk. 368. Gibbs, C.J., 7 Taunt. 191; 1 Atk. 477; Amb. 113. (a) Ante, 207, 208, 209, 351. Messent v. Reynolds, 10 Jur. 550. Line v. Stephenson, 7 Sc. 69. (a) Stanley v. Hayes, 3 Ad. & E. N. s. 105. (b) Inman v. Stamp, 1 Stark. 12. Edge v. Strafford, 1 Cr. & J. 398. lessee enters into possession, and has the use and enjoyment of the land, he is responsible for the payment of the same amount of rent as that reserved by the lease. The contract, though void as a present demise for the term specified, would be good as an agreement for a lease, and the tenant would be deemed, in contemplation of law, to hold upon such of the terms and stipulations as might be applicable to a yearly tenancy.(c) Express and implied covenants and promises to pay rent.—We have already seen, that in the case of leases under seal, the law implies from the words yielding and paying, or any equivalent words amounting to a reservation of rent, a covenant on the part of the lessee to pay the rent so reserved; and in the case of parol leases, a promise to the like effect.(d) The liability of a lessee upon all express and implied covenants and agreements for the payment of rent, is dependent upon his being put into possession, or being tendered and offered, and afforded the power and opportunity of taking possession of the demised premises " (e) "A man who enters into an agreement to let premises to another, binds himself to give possession, and not to give to the party to whom he demises a mere right to take possession from a wrongdoer by an action of ejectment." (ƒ) "If you cannot give full possession of the thing demised, you cannot sue in covenant for the rent." (g) The quiet enjoyment also by the lessee as against the lessor, and all that come in under him by title, and against others claiming by title paramount during the time in respect of which the rent is claimed to have accrued due, is a condition precedent to the tenant's liability for the payment of such rent. (h) But the tenant is not released from liability by reason of an eviction by a mere wrongdoer and trespasser, who has no title at all to the possession of the demised premises.(i) Thus where an action of debt was brought for three years' arrears of rent reserved upon a lease of a farm, and the defendant pleaded that (c) Doe v. Bell, 5 T. R. 472. Richardson v. Giffard, 1 Ad. & E. 52; 3 N. & M. 325. Doe v. Amey, 12 Ad. & E. 479. Pistor v. Cater, 9 M. & W. 315; Bayley, J., 10 East, 354. Cooch v. Goodman, 2 Ad. & E. N. s. 580; 2 G. & D. 164, s. c. Fishmongers' Co. v. Robertson, 6 Sc. N. R. 56. Chanter v. Dewhurst, 12 M. & W. 823. (d) Ante, 207, 209; Bac. Abr. Leases, 633. Covenant, (B.) 342. (e) Hawkes v. Orton, 5 Ad. & E. 367; N. & M. 844, s. c. The lessee may be clothed with the possession without a single hour's occupation. Bid v. Higginson, 2 Ad. & E. 704; 4 N. & M. 512. (f) Tenetur locator obligatus rem locatam ad usum dare Bract. Lib. 2, c. 28, fol. 62. Best, (h) So by the French law, c'est un suite de l'obligation que le locateur contract envers le conducteur par le contrat de louage præstare ei frui licere, qu'il ne puisse apporter aucune trouble a la jouissance du conducteur pendant tout le temps que le bail doit durer. Pothier, Louage, No. 266. (i) Granger v. Collins, 6 M. & W. 458. Dunn v. Di Nuovo, 3 Sc. N. R. 487. Eviction by a railway company under its act of parliament. Wainwright v. Ramsden, 5 M. & W. 602. Prince Rupert, an alien and enemy of the king, invaded the realm with an army, and with divers armed men did enter upon the demised premises, and did drive away the defendant's cattle, and expel him from the land demised to him by the plaintiff, and keep him out, so that he could not enjoy the lands during the term, "it was resolved that the matter of the plea was insufficient. And this difference was taken, that where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over there, the law will excuse him; but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. Another reason was added, that as the lessee is to have the advantage of casual profits, he must run the hazard of casual losses, and not lay the whole burthen of them upon his lessor.(k) So where the parliament, during the civil wars, took possession of a house which had been demised to a lessee for a term of years, and turned it into a hospital for sick and maimed soldiers, and so prevented the lessee from having any beneficial occupation thereof for several years; notwithstanding which, the lessor brought an action of debt for the rent; no question appears to have been made, but that the lessce was bound at common law to make good the rent; and the lessee consequently brought his bill in equity for relief, on the ground that he had no remedy over against the wrongdoers, because it was an act of force in the parliament, which had been pardoned by the act of oblivion; but it does not appear that he got relief even in equity.(7) Having put the lessee, therefore, into possession of the demised premises, or placed them at his disposal, and clothed him with the legal title to the possession and occupation thereof for the term granted by the lease, the lessor has done all that it is necessary for him to do to entitle himself to the rent at the time that it is made due and payable; he does not, in cases of demises of realty, warrant that the premises are, at the time of the demise, or that they shall continue to be during the term, in any particular state or condition, or fit for any particular purpose; and the lessee therefore is bound to pay his rent, although the subject matter of the demise is not fit for the purpose for which he required it, and although he may have had no beneficial use or enjoyment thereof. (m) If, (k) Paradine v. Jane, Aleyn. 27; Sty. 47; 1 Ro. 939; a case, observes Lord Alvanley, C. J., founded on much good sense, 3 B. & P. 300. Kenyon, C. J., Blight v. Page, ib., 296, 297. Lawrence, J., 8 T. R. 267. Lord Ellenborough, C. J., 3 M. & S. 270, 271. Barrett v. Dutton, 4 Campb. 333. (1) Harrison v. Lord North, 1 Ch. Ca. 84. (m) Surplice v. Farnsworth, 7 M. & Gr. 577 ; 8 Sc N. R. 307. |