As to boundaries and descriptions of premises, the same rules are to be applied as in the case of deeds and other sealed instruments. See Vol. 2, tit. Deeds.

Ordinarily, a lease will commence on the day of its date, if no other time be fixed; but, if it has no date, or an impossible one, it will commence from delivery. Keyes v. Dearborn, 12 N. H. 52; Trustees, etc. v. Robinson, Wright (Ohio), 436. When time is to be computed from or after a certain day, that day is usually excluded. Bigelow v. Willson, 1 Pick. 485; Arnold v. United States, 9 Cranch, 104. The application of this rule to leases is not uniform, but the inclusion or exclusion of the day mentioned seems to be governed by the presumed intention of the parties, or the circumstances of the particular case. White v. Nicholson, 4 Scott (N. R.), 707; 4 M. & G. 95; Pugh v. Duke of Leeds, Cowp. 714; Wilcox v. Wood, 9 Wend. 346; Blake v. Crowninshield, 9 N. H. 304.

At common law, a lease limited by months was construed as meaning lunar months (2 Bl. Com. 141; Parsons v. Chamberlin, 4 Wend. 512); but by statute in some of the American States, and by usage in others, months are held to mean calendar months.

A lease for one year, and so on for two or three years, as the parties shall agree, 'does not become a lease for two or three years without a subsequent agreement, but after it has commenced running on the. second year it is not determinable until that year is ended. Harris v. Evans, 1 Wils. 262. But one which is expressed to be "not for one year only, but from year to year," creates a tenancy for two years at least; and so does one for years generally without saying how many. If for an optional number of years, without stating at whose option, it is at the option of the lessee. Dann v. Spurrier, 3 B. & P. 399, 442; 7 Ves. 231; Price v. Dyer, 17 Ves. 363; Webb v. Dixon, 9 East, 16.

A power to revoke a lease at will gives the lessor power to revoke it at any time; but a proviso that the term shall cease on the failure of the lessee to pay rent, merely gives the lessor power to determine it on such failure. The lessee has no such option. Ex parte Miller, 2 Hill, 418; Reid v. Parsons, 2 Chit. 247.

A lease for a fixed term, but subject to be defeated by the happening of a particular event, is ended by the happening of that event. Ludford v. Barber, 1 Term, 86. An estate for life terminates at the death of him on whose life it depends. One for the lives of A. and B. ter minates on the death of either, while one for the life of A. or B. continues so long as either of them lives. Lord Vaux's case, Cro. Eliz.

269; Elliott v. Turner, 2 C. B. 461. But a grant to two generally, for their lives, is sufficient to carry a right of survivorship.

§ 3. Validity of a lease. The requisites to the validity of a lease are, briefly, that it be made by a person having sufficient title or authority; that it be for a term properly defined; and that it be in com. pliance with and do not contravene any provision of law on the subject. One who has no estate or interest in lands cannot give a lease thereof which will bind the true owner. Wilklow v. Lane, 37 Barb. 244. Nor can any one whose interest is limited in time, give a valid lease to extend beyond that limit. Robie v. Smith, 21 Me. 114. But, it seems,

a lease granted under a power, for more years than is authorized by such power, although void at law, will be held good in equity to the extent of the power. Roe d. Brune v. Prideaux, 10 East, 158; Law v. Hempstead, 10 Conn. 23; Martin v. Sterling, 1 Root, 210. And a lease by a tenant for life or years, extending beyond his term, will generally pass what interest he has.

A lease for the life of one not in existence does not sufficiently define the term, and is void; but one for the lives of several persons named is valid for the lives of such of them as are then living. Doe d. Pemberton v. Edwards, 1 M. & W. 553.

The question of the validity of leases arises most frequently under that provision of the statute of frauds requiring all conveyances of lands or of any interest therein to be in writing. Under these statutes it has been held that a grant of the possession of land for any permanent use, such as one to enter upon land at all times, or to erect and keep in repair a building, a canal, an embankment or the like, must be in writing; but a mere license to enter and do certain acts of a temporary character need not be, as it confers no interest in the land. Cook v. Stearns, 11 Mass. 533; Miller v. Auburn & Sy. R. Co., 6 Hill, 61; Mumford v. Whitney, 15 Wend. 380. Even a permission to use a church edifice for the purposes of worship, when not occupied by the owners, conveys such an interest, and must be in writing. Brumfield v. Carson, 33 Ind. 94; 5 Am. Rep. 184. Where the lease itself is required to be in writing, a subsequent verbal agreement to add a restrictive clause is void (Snelling v. Thomas, 17 L. R. Eq. 303; 7 Eng. Rep. 829; 43 L. J. Ch. 506); but one to do some collateral thing relating to the demised premises is valid. Mann v. Mann, 43 L. J. C. P. 241; 30 L. T. (N. S.) 526; Angell v. Duke, 44 L. J. Q. B. 78; 10 L. R. Q. B. 174; 12 Eng. Rep. 236; 23 W. R. 307.

Leases for short terms, limited in England and in some of the American States to three years, and in other of those States to one year from the making thereof, are expressly excepted from the operation of the

statute of frauds. A verbal lease for the full term allowed by statute, to be valid, must commence immediately, otherwise it will extend beyond that limit. Parker v. Hollis, 50 Ala. 411; Wheeler v. Frankenthal, 78 Ill. 124. Such a lease for more than the statutory limit, although void as a lease, will create a tenancy from year to year, and one who takes and holds possession under it will be bound by its provisions. Doe d. Rigge v. Bell, 5 Term, 471; Richardson v. Gifford, 3 N. & M. 325; 1 A. & E. 52; Beale v. Sanders, 3 Bing. N. C. 850; 5 Scott, 58; 1 Jur. 1083; Bradley v. Covel, 4 Cow. 350. A parol permission to hold over from year to year is valid, when followed by the receipt of rent; but if without consideration, it is revocable. Hammon v. Douglas, 50 Mo. 434; Walker v. Wilson, 52 Ill. 352.

An alteration in a lease, whether material or not, if made by one claiming a benefit under it, avoids it so far as respects an action upon it. Otherwise, if made by a stranger.

A lease made for an illegal or immoral purpose has been held to be so tainted that it will not sustain an action. Smith v. White, 1 L. R. Eq. 626; 36 L. J. Ch. 454; 14 W. R. 510; 14 L. T. (N. S.) 350. Such leases are sometimes by statute expressly declared to be void. But, in order to avoid a lease on that ground, it must appear not merely that the lessor knew of the intent to use the premises for an unlawful purpose, but that he was a party to such intent or has done something in furtherance of it. Updike v. Campbell, 4 E. D. Smith (N. Y.), 570

Leases have also been held void when founded on a fraudulent, unjust, illegal or immoral consideration, such as usury, marriage brokage, and the like; but an underlessee, not concerned in such consideration, will not be affected thereby. Molloy v. Irwin, 1 Sch. & Lef. 310.

§ 4. Renewal of lease. A tenancy once established may be continued on the mutual consent of the parties, by the execution of a new, or, what is equivalent thereto, a renewal of the old one, at the expiration of each term for a further year or number of years. This continuance is frequently a matter of great importance to the tenant, but the landlord is under no legal obligation to grant it, unless he has expressly covenanted to do so. Imperfect rights of renewal, founded upon local custom, have sometimes been recognized and enforced in equity, but these are exceptions to the general rule. Phyfe v. Wardell, 5 Paige, 268. Covenants for renewal are, therefore, commonly inserted in leases for years. These will be hereafter considered in treating of covenants on the part of the lessor.

Leases sometimes provide for a continuance of the tenancy at the option of the lessee without any formal renewal. Such is the case of a

lease for a term of years, with the privilege of a specified number of years more if desired, which fixes the rent for the whole term, and requires notice of option before the end of the term first named. House v. Burr, 24 Barb. 525; Chretien v. Doney, 1 N. Y. (1 Comst.) 419. If a lessee under such an optional lease, who has covenanted to deliver up quiet possession at the end of his term, continues in possession afterward, he will be deemed to have elected the longer term. Delashman v. Berry, 20 Mich. 292; 4 Am. Rep. 392. And where no notice of option is required by the lease, such continuance in possession with payment of rent will operate to create a new term (Schroeder v. Gemeinder, 10 Nev. 355); otherwise, where notice of option is required. Thiebaud v. First National Bank of Vevay, 42 Ind. 212. The receipt of rent alone, and giving a general receipt therefor, cannot be construed into a letting for a new term. Hartnuck v. James, 1 Penn. Leg. Gaz. 364.

Compliance on the part of the lessee with other conditions on which a renewal was to be granted has been held sometimes to operate of itself as a renewal. Ranlet v. Cook, 44 N. H. 512. If a lessee ends his term by proper notice and removes from the premises, no subsequent acts of his, which are not equivalent to a re-entry and exclusive possession, will operate as a renewal. Thomas v. Frost, 29 Mich. 336.

An indorsement on a lease by arbitrators, authorized by the covenant for renewal to fix the price, thus: "This lease is renewed by arbitration for five years, at a yearly rent of," etc., is a good renewal. Brand v. Frumveller, 32 Mich. 215.

A renewal procured by one joint tenant in his of his co-tenants, will inure to the benefit of all. Sandf. Ch. 15.

own favor, in fraud Burrell v. Bull, 3

The renewal of a lease, with a stipulation for the performance of certain work covenanted for in the former lease, will not operate as a waiver of damages for previous non-performance. Walker v. Seymour, 13 Mo. 592.

Where the original term of a lease for ninety-nine years, renewable forever, has expired, and the owner of the leasehold interest has failed to obtain a renewal within the term, according to the literal wording of the covenant for renewal, equity will relieve him, and compel the owner of the reversion to execute a new lease, provided the application be made in a reasonable time, and all arrearages of ground-rent and the renewal fine be first paid. Banks v. Haskie, 45 Md. 207.

ARTICLE VI.

COVENANTS AND CONDITIONS.

Section 1. In general. The rights and liabilities of the parties to a lease depend very much upon covenants and conditions, either inserted in express terms or incident to the relation between them, and, therefore, to be implied. Of the nature, general character, construction and validity of covenants, and the parties bound by or entitled to the benefit of them, and of the performance or breach thereof, sufficient has already been said under the title "Covenants" (Vol. 2, p. 363), and this article will be confined to the consideration of the particular covenants and conditions found in leases.

Though classed together, and frequently created by the same form of words, there is an important distinction between covenants and conditions. The former are promises to do or not to do certain things, while the latter are qualifications annexed to the estate of the lessee, whereby it may be defeated or avoided. Conditions are either in deed or in law. The breach of a condition in deed entitles the lessor or reversioner to enter and determine the estate, but does not defeat it until entry. Conditions in law, now generally called limitations, mark the period which is to terminate a tenancy without entry or claim.

Words in the form of a condition may be construed to be a covenant, and will be so construed where there is doubt; but words importing a covenant, if intended to operate as a condition, are always express to that point. Surplice v. Farnsworth, 7 M. & G. 576, 584.

If a condition is precedent, it must be performed before the term can commence or the right accrue, and, therefore, if it be impossible, the estate never vests. If subsequent, that is, to be performed after the estate has vested, the non-performance of it will operate either to enlarge or defeat such estate according to its terms. In order to deter mine whether a condition is precedent or subsequent, the intention of the parties is to be sought; no particular form of words being required to make it one or the other.

The terms "upon condition," or "provided that," are usually em ployed to express a condition. The word "proviso" in a lease usually implies a condition, but if a penalty is annexed, it becomes a covenant. But no condition is created by the words "yielding and rendering," unless to construe them otherwise would leave the landlord without remedy in case of the non-payment of rent; nor do words in restraint of the grant, or words of an uncertain character, have that effect. Comyn's Dig., Condition.

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