3 & 4 Will. 4, c. 27, s. 7.

Tenancy determined after expiration of one year;

new tenancy created;

no new ten

fresh acknowledgment that the land was held by permission of the lord. But where a lessee, with the verbal consent of the lessor, enclosed land adjoining his holding (which land was in fact copyhold waste belonging to the lessor as lord of a manor), this did not create such a tenancy as is referred to in sect. 7 (Whitmore v. Humphries, L. R. 7 C. P. 1).

Where, after the expiration of one year from the commencement of a tenancy at will, the tenancy has been determined, time runs not from the determination, but from the expiration of the year (Doe v. Carter, 9 Q. B. 863; Doe v. Turner, 7 M. & W. 226).

Where time has begun to run after the expiration of one year from the commencement of a tenancy at will, the question of a subsequent determination of the original tenancy is only relevant so far as it may be preliminary to the creation of a fresh tenancy at will after the determination of the first, and within the period of limitation (Day v. Day, L. R. 3 P. C. 751). In the event of such new tenancy being created, time runs from the determination of such new tenancy, or from the expiration of one year after the commencement thereof, without regard to the original tenancy (Locke v. Matthews, 13 C. B. N. S. 753; 11 W. R. 343; Turner v. Doe, 9 M. & W. 643; see Doe v. Rock, 4 M. & Gr. 30; Thorp v. Facey, 35 L. J. C. P. 349). New tenancies were held to have been created in Locke v. Matthews and Turner v. Doe, sup. ; and see Jarman v. Hale, 1899, 1 Q. B. 994.

Where parish overseers determined a pauper's tenancy at will by ancy created. turning him out, and he subsequently resumed possession, no new tenancy at will being created, time ran against the overseers from the pauper's subsequent resumption of possession without any regard to the original tenancy (Randal v. Stevens, 2 E. & B. 641). And where B.'s occupation of land began by the permission of the owner A., and A. from time to time came on the land and gave directions as to cutting trees and repairs, it was said that every time A. came on the land, time commenced afresh to run against him (Allen v. England, 3 F. & F. 49; but see Lynes v. Snaith, 1899, 1 Q. B. 486).

An estate at will, being the lowest estate which can arise by the agreement of the parties, is not bounded by definite limits with respect to time; but as it originated in mutual agreement, so it depends upon the concurrence of both parties (see Litt. ss. 68, 82). As it depends upon the will of both, although it is expressed to be at the will of one only (Co. Litt. 55 a), the dissent of either may determine it. An estate at will may arise by implication, as well as by express words. The definition of an estate at will is, "where lands and tenements are let by one man to another, to have and hold at the will of the lessor, and the tenant by force of this lease obtains possession" (Litt. s. 68; 2 Bl. Com. 145). Thus, where a person makes a feoffment, and delivers the deed to the feoffee, without giving him livery of seisin, and the fcoffee enters, he becomes tenant at will (Litt. s. 70). And a person who entered and enjoyed lands under a void lease, and paid rent, was held to be tenant at will (Denn v. Fearuside, 1 Wils. 176); though by payment of rent he may become tenant from year to year (see Smith v. Widlake, 3 C. P. D. 10; Magdalen Hospital v. Knotts, 11 App. Cas. 335). A simple permission to occupy may create a tenancy at will unless an intention appears to create a yearly tenancy by an agreement to pay rent quarterly, or some other aliquot part of a year. Under an agreement to let premises so long as both parties like, and receiving a compensation accruing de die in diem, and not referable to a year or any aliquot part of a year, a tenancy at will, strictly so called, is created (Richardson v. Langridge, 4 Taunt. 128; Doe v. Wood, 14 M. & W. 687; see Braythwayte v. Hitchcock, 10 M. & W. 497; Cox v. Bent, 5 Bing. 185). A tenancy from year to year will not be presumed against the clearly expressed intention of the parties. By a proviso in a deed, A. agreed to become tenant to C. at his will and pleasure at a rate of 251. 4s. per annum, payable quarterly; it was held that A. was tenant at will

c. 27, s. 7.

(Doe v. Cox, 11 Q. B. 122; see Re Threlfall, 16 Ch. Div. 274). A party 3 & 4 Will. 4, in possession as apparent owner was, under the circumstances of the case, held to be tenant at will, his conduct amounting to an admission to this effect (Doe v. Groves, 10 Q. B. 486). In Ley v. Peter (3 H. & N. 101; 6 W. R. 437), a letter was held to be no evidence of such a tenancy.

An entry by a person under a contract for the purchase of an estate, or under an agreement for a lease, with the consent of the vendor or of the person agreeing to grant the lease, will create a tenancy at will between the parties (Hegan v. Johnson, 2 Taunt. 147; Dunk v. Hunter, 5 B. & Ald. 322; Doe v. Lawder, 1 Stark. 308; Right v. Beard, 13 East, 210; Doe v. Jackson, 1 B. & C. 448; Doe v. Sayer, 3 Camp. 8; Doe v. Stanion, 1 M. & W. 700; Ball v. Cullimore, 2 C. M. & R. 120; see Doe v. Rock, 4 M. & G. 30; Warren v. Murray, 1894, 2 Q. B. 657); even where he pays interest after the rate of 51. per cent. per annum on the purchase-money (Doe v. Chamberlaine, 5 M. & W. 14; see Saunders v. Musgrove, 8 B. & C. 524). But where the purchaser is already in possession as tenant from year to year, it must depend upon the intention of the parties, to be collected from the agreement, whether a new tenancy at will is created or not, and from what time (Doe v. Stanion, 1 M. & W. 695; see Souter v. Drake, 5 B. & Ad. 992).

see

The most obvious mode of determining an estate at will is an express Determinadeclaration that the lessee shall hold no longer, either made on the land, tion of tenor by notice given to the lessee (Co. Litt. 55 b). Any act of ownership ancy at will. exercised by the landlord, which is inconsistent with the nature of the estate, will operate as a determination of it (Ib.; Co. Litt. 245 b). Thus, a conveyance by the lessor operates as a determination of the will (Dinsdale v. Iles, 2 Lev. 88). So a legal mortgage of which the tenant had notice (Jarman v. Hale, 1899, 1 Q. B. 994). The tenancy may be determined by demand or by entry (Doe v. Chamberlaine, 5 M. & W. 16). It is clearly laid down, that if the lessor, without the consent of the lessee, enter into the land and cut down a tree, this is a determination of the will, for that it should otherwise be a wrong in him, unless the trees were excepted, and then it is no determination of the will, for then the act is lawful, albeit the will doth continue " (Co. Litt. 55 b). So a tenancy at will is determined by the landlord's entry on the land without the consent of the tenant, and cutting and carrying away stone therefrom (Doe v. Turner, 7 M. & W. 226); but not by entry (not objected to) for repairs (Lynes v. Snaith, 1899, 1 Q. B. 486; Allen v. England, 3 F. & F. 49). So in Ball v. Cullimore (2 C. M. & R. 120), it was held, that a feoffment by the lessor, with livery of seisin on the land, operates as a determination of the will, although the tenant at will be off the land at the time when the livery is made, and have no notice of the determination of the will; secus, in the case of an ordinary conveyance without notice (Doe v. Thomas, 6 Exch. 857). A tenancy at will is determined by an agreement to purchase (Daniels v. Davison, 16 Ves. 252). A letter from the owner to the tenant at will, stating that unless the latter paid what was due to the former, immediate measures would be taken to recover possession of the property, was held sufficient to determine the estate at will (Doe v. Price, 9 Bing. 356). Neither party can determine an estate at will at a time which would be prejudicial to the other (Co. Litt. 55 b, n. 16; Leighton v. Theed, 1 Ld. Raym. 707; Peacock v. Peacock, 16 Ves. 57). A tenant at will cannot put an end to his tenancy, even by an assignment, without giving notice to his landlord (Pinhorn v. Souster, 8 Exch. 763; see Melling v. Leak, 16 C. B.669). For the case where the lessor became an insolvent debtor, see Doe v. Thomas, 6 Exch. 854. The granting of a lease to a third person by the lessor of a tenant at will, though it determines the tenancy at will as against the lessor, does not give him such a right of entry as is contemplated by R. P. Lim. Act, 1833, s. 2 (Hogan v. Hand, 14 Moore, P. C. C. 310; 9 W. R. 673). The death of the lessor or tenant also determines the tenancy (James v. Dean, 11 Ves. 391).

See further, as to the creation and determination of tenancies at will,

3 & 4 Will. 4, the notes to Richardson v. Langridge (Tudor, L. C. Conv. 11, 4th ed.); and c. 27, s. 7. Clayton v. Blakey (2 Smith, L. C. 124, 10th ed.); Woodfall, 16th ed., 238.

(3)

Proviso as to mortgagors and cestui que trusts.

Operation of section as to mortgagors.

Relation

between mortgagee and mortgagor in possession.

The proviso as to mortgagors and cestui que trusts was introduced to prevent the title of the mortgagee or trustee from being barred in twentyone years in those cases in which a mortgagor or cestui que trust in possession was held to be tenant at will to the mortgagee or trustee.

By the R. P. Lim. Act, 1837 (post, p. 172), read in connection with the R. P. Lim. Act, 1874, s. 9 (post, p. 189), mortgagees may bring actions to recover the land mortgaged within twelve years after the last payment of principal or interest.

Where a mortgage was paid off, but no reconveyance executed, the proviso did not apply; and the legal estate of the mortgagee was extinguished by thirteen years' possession of the mortgagor, who was held to be a tenant at will (Sands to Thompson, 22 Ch. D. 614).

The relation between mortgagor and mortgagee is perfectly anomalous and sui generis (2 Jac. & W. 183). The mortgagor is only like a tenant at will to the mortgagee, his legal interest being inferior to that of a strict tenant at will (Doug. 22, 282, 283). A mortgagor in possession may be described in pleading as the tenant of the mortgagee in an action by a third party (Partridge v. Bere, 5 B. & Ald. 604). The legal interest of the mortgagor after default is not more than that of a tenant by sufferance, and he may be treated as such or as a trespasser, at the election of a mortgagee (Doe v. Maisey, 8 B. & C. 767; see Wheeler v. Montefiore, 1 Gale & D. 493); and the mortgagor, or his tenant coming in after the mortgage, may be ejected without any demand of possession having been made (1b.), either by the original mortgagee or by his assignee (Thunder v. Belcher, 3 East, 449); whereas a tenant at will cannot be ejected on a demise laid previous to the determination of the will (4 T. R. 680); and the mortgagor is not entitled to the growing crops after the will is determined, as in the case of a tenant at will (1 T. R. 383; see Coote on Mortgages, 325-330; Walmsley v. Milne, 7 C. B. N. S. 133; 5 B. & Ald. 605, n.). "It is now established, that a mortgagor only holds the possession of the land, and receives the rent of it, by the will or permission of the mortgagee, who may by ejectment, without giving notice, recover against him or his tenant. In this respect, the estate of a mortgagor is inferior to that of a tenant at will" (Bird v. Wright, 1 T. R. 378; see 4 Bligh, 97; Partridge v. Bere, 5 B. & Ald. 604; Hitchman v. Walton, 4 M. & W. 415; Doe v. Olley, 12 Ad. & Ell. 481). And this is so, even where by the mortgage deed the mortgagor attorned to the mortgagee as tenant at a quarterly rent, which was stated to be done for the purpose of securing the principal and interest, and in contemplation and part discharge thereof (Doe v. Tom, 4 Q. B. 615). In Doe v. Barton (11 Ad. & Ell. 314), Denman, C. J., said, "It is very dangerous to attempt to define the precise relation in which mortgagor and mortgagee stand to each other in any other terms than those very words; but thus much is established by the cases of Partridge v. Bere (5 B. & Ald. 604), and Hitchman v. Walton (4 M. & W. 409), that the mortgagee may treat the mortgagor as being rightfully in possession, and himself as reversioner; so that, as long as he be not treated as a trespasser, his possession is not hostile to, nor inconsistent with, the mortgagee's right. (We purposely avoid the expression 'is not adverse,' by reason of the statutes 3 & 4 Will. 4, c. 27, and 7 Will. 4 & 1 Vict. c. 28.)" A mortgagor may be tenant at will to the mortgagee notwithstanding the reservation of a yearly rent by the mortgage deed (Doe v. Davies, 7 Exch. 89; Doe v. Cox, 11 Q. B. 122; Walker v. Giles, 6 C. B. 662; see the Metropolitan Co. v. Brown, 4 H. & N. 428). Where a mortgagee recognizes a tenant as being in lawful possession of the premises at a given time by the receipt of rent, it is not competent to him to say afterwards that at that time he was a trespasser (Doe v. Hales, 7 Bing. 322). Mere payment of interest does not create a tenancy at will (Scobie v. Collins, 1895, 1 Q. B. 375; see Doe v. Cadwallader, 2 B. & Ad.

473). Upon payment off of the mortgage money the mortgagor becomes 3 & 4 Will. 4, tenant at will (Sands to Thompson, 22 Ch. D. 614).

A mortgagor in possession may, as against a mortgagee, grant certain leases (Conv. Act, 1881, s. 18); and where the mortgagee has not given notice of his intention to take possession or enter into receipt of rents, the mortgagor may sue for rent or possession (Jud. Act, 1873, s. 25 (5)).

See further, as to the relation subsisting between a mortgagee and a mortgagor in possession, the note to Keech v. Hall (1 Smith, L. C. 494); Watkins on Conveyancing, 13, 9th ed.; and Tudor, L. C. Conv. 13, 4th ed.

c. 27, s. 7.

The proviso as to cestui que trusts is equivalent to saying, that the right Meaning of of entry of a trustee against his cestui que trust shall not be deemed to the proviso as have first accrued at the expiration of one year next after the commence- to cestui que ment of the tenancy; and the exception seems to be introduced in order trusts. to prevent the necessity of any active steps being taken by the trustee to preserve his estate from being destroyed, as in the case of an ordinary tenancy at will, by mere lapse of time (Garrard v. Tuck, 8 C. B. 231).

It was the opinion of Kay, L. J., that the proviso includes implied trusts (Warren v. Murray, 1894, 2 Q. B. 657). The proviso was extended to the case of an intended lessee who entered and remained in possession under an agreement for a lease, no lease being granted (1b.; Drummond v. Sant, L. R. 6 Q. B. 763). On the other hand, the courts have refused to extend the proviso to the case of a person holding under an agreement to purchase (Doe v. Rock, 4 M. & G. 30); or to the case of a mortgagor who paid the mortgage debt (Sands to Thompson, 22 Ch. D. 614).

que trust in possession.

The general rule is, that a cestui que trust being in possession of the Relation estate, with the consent, or even the mere acquiescence, of the trustee, is between trusconsidered as his tenant at will (4 Bac. Abr. 198; Smith v. Pierce, 3 Mod. tee and cestui 195; Focus v. Salisbury, Hardr. 400; Freeman v. Barnes, 1 Ventr. 55, 80; 1 Lev. 270; Pomfret v. Windsor, 2 Ves. sen. 472, 481; 1 Ventr. 329; Gree v. Rolle, 1 Ld. Raym. 716). Before the Judicature Acts it was a rule, that however plain the trust might be, yet in a court of law the legal interest must prevail (Doe v. Wharton, 8 T. R. 2); therefore trustees of a meeting-house or of lands, of which they were seised in trust for the support of the minister, might maintain an action of ejectment against him upon a simple demand of possession without any notice to quit (Doe v. Jones, 10 B. & C. 718; Doe v. M Keag, 10 B. & C. 724). But the trustee and visitors of a free grammar school could not recover the schoolhouse in ejectment without having previously determined the schoolmaster's interest by summons (Doe v. Gartham, 1 Bing. 357; see R. v. Gaskin, 8 T. R. 209; R. v. Darlington School, 6 Q. B. 682). The relation between trustee and cestui que trust is not analogous to that between mortgagor and mortgagee, as equity never takes away the possession of the cestui que trust by delivering it to the trustees, unless there be gross mismanagement; or some other reason for it (9 Mod. by Leach, p. 227; see Watkins on Conveyancing, 16, 9th ed.). As to letting an equitable tenant for life into possession, see note to sect. 3 of S. L. Act, 1882, post.

The doctrine that a cestui que trust who is in the possession of an estate by the consent or acquiescence of the trustee must be regarded as tenant at will, only applies where the cestui que trust is the actual occupant. If he is only allowed to receive the rents, or otherwise deal with the estate in the hands of the occupying tenants, he stands in the relation merely of an agent or bailiff of the trustees, and if the actual occupier holds for more than the statutory period without paying rent, the trustees lose their title (Melling v. Leak, 16 C. B. 652; see Jones v. Phipps, L. R. 3 Q. B. 567).

8. When any person shall be in possession or in receipt of No person the profits of any land, or in receipt of any rent, as tenant from after a year to year or other period, without any lease in writing, the tenancy from right of the person entitled subject thereto, or of the person to have any through whom he claims, to make an entry or distress, or to right but from

year to year

the end of the

c. 27, s. 8.

3 & 4 Will. 4, bring an action to recover such land or rent, shall be deemed to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent paylast payment able in respect of such tenancy shall have been received (which shall last happen).

first year or

of rent.

(1) Cases under Sect. 8...142.

(2) Creation of Tenancy from Year to Year...142.

(3) Determination of Tenancy from Year to Year...144.

The 8th section applied to tenancies from year to year, created before and existing at the passing of the act (Doe v. Sumner, 14 M. & W. 39).

The lease in writing referred to in this section by which a case would be taken out of its operation, must be not merely an instrument which was evidence of the conditions of holding but one passing an interest (Doe v. Gower, 17 Q. B. 599).

The reservation and receipt of any rent, however small, will create the legal relation of tenancy from year to year for the purposes of the act (Magdalen Hospital v. Knotts, 4 App. Cas. 324). The rent may be any service for which distress may be made (sect. 1, ante), and accordingly includes cleaning the parish church and ringing the bell (Doe v. Benham, 7Q. B. 976). Where the tenancy is disputed, the circumstances connected with the annual payments are very important, for if the person paying makes the payment expressly or impliedly on account of something else than rent of land of which he is tenant, that would not be a payment of rent within this section (4.-G. v. Stephens, 6 D. M. & G. 146). Payment of rent within this section may be proved by parol admission (Doe v. Beckett, 4 Q. B. 601).

Where after the expiration of twenty years during which no rent had been paid, the tenant within five years before action paid some arrears, time ran under this section from the last payment of rent; and sect. 34 did not extinguish the title of the reversioner (Bunting v. Sargent, 13 Ch. D. 330; see, however, as to this last point, Sanders v. Sanders, 19 Ch. Div. 373, and cases quoted post, p. 179). Where A. let land to B. by parol from year to year, reserving rent payable in March and November, the last payment of rent was in March, 1846. A. died in December of the same year, and B. retained possession. Time ran from the last payment of rent, and not from the death of A. (Baines v. Lumley, 16 W. R. 674).

Where a tenant from year to year remains in possession without paying rent, on the expiration of the statutory period the right of the landlord is barred not only to the land but also to any arrears of rent (Re Jolly, Gathercole v. Norfolk, 1900, 2 Ch. 618).

An estate from year to year may be created either by the parol or written agreement of the parties. The qualities that distinguish it from proper terms of years, and from estates at will, are, that it is now raised by construction of law alone instead of an estate at will, in every instance where a possession is taken with the consent of the legal owner, and where an annual rent has been paid, but without there having been any conveyance or agreement conferring a legal interest; and that whether it arises from express agreement, or by implication of law, it may, unless surrendered or determined by a regular notice to quit, subsist for an indefinite period, if the estate of the lessor will allow of it, or for the whole term of his estate, where it is of a limited duration, unaffected by the death either of the lessor or lessee, or by a conveyance of their estate by either of them (Birch v. Wright, 1 T. R. 380). It is not to be considered as recommencing every year (Doe v. Wood, 14 M. & W. 682). It will not arise by implication where it would work a forfeiture (Fenny v. Child, 2 M. & S. 255). Although primâ facie all leases for uncertain terms