The definite period for which a lease is given is called a term. If a

lease is from the first day of January, it begins on the second day

and lasts through the last day mentioned; in carefully drawn leases

the number of days is fixed to avoid all dispute. A lease for a year

with the privilege of remaining three years or longer does not mean a

single period of three years, but three yearly periods as the tenant

may elect.

A lease may be made to take effect in the future, provided the time

for taking possession is not so far away as to violate some statute to

the contrary. A lease for an hundred years in some states is deemed a

parting with the absolute title to lands though railroads make long

leases running for ninety-nine years. If the length of the term is not

definitely expressed in the lease, the time may be ascertained by

other evidence. When a lease is to run for one or more years "from" a

specified day, the corresponding day of the year is excluded from the

term, unless a contrary custom exists. A lease to a specified day ends

with its expiration. If there be a doubt on which of two days a lease

terminates, the lessee may decide. More generally, leases of doubtful

duration are construed in favor of the tenants. By statute in New York

leases which do not specify the length of occupation, extend to the

first of the following May after taking possession.

A lease must describe clearly the premises, nor can a defective

description be cured by outside evidence. Any language will suffice

that shows the intention of the parties. The words "grant," "demise,"

and "to farm let," have a technical meaning, and are generally used,

but other words may be and often are used. A memorandum expressing the

consent of the owner that another shall have immediate possession of

the premises, and shall continue to occupy them at a specified rent

and for a definite term, is a sufficient lease; in general, any

agreement under which one person obtains the right of enjoyment to

property of another, with his consent and in subordination.

A distinction exists between a lease and an agreement for a lease,

which should be understood, though it sometimes is not by the parties

themselves. If the agreement is a lease, it cannot be changed by other

evidence, for it is a completed contract; but if it is an agreement

for a lease, then it is not complete and other evidence may be

produced to show what the parties intended. How can the nature of the

agreement be tested? By ascertaining whether it is complete or not.

Thus A wrote to B that he would take his home at a stipulated rent for

two years if he would put in a furnace, with which offer B at once

complied.

This was a lease, for by putting in the furnace nothing more remained

to be done. If he had not put in the furnace, or not before the time A

was to take possession, there would have been no lease, unless A had

waived his offer and taken possession.

Of course to make a valid lease there must be competent parties. A

lease made by a minor is not void, but he may avoid or cancel it by

some positive act. Can he do this before attaining his majority? On

this the authorities differ. Again appears the risk of making

contracts with minors, though the situation many times seems clearly

to justify such action. A guardian may lease his minor's land for the

period of his minority; if leased beyond, the ward may have the lease

canceled for the excess. A lease terminates on the death of the ward,

whatever may be the length of the term. A parent cannot lease the land

of his minor child like a guardian.

By common law a lease made by a married woman was avoided after her

husband's death. The modern statutes excluding her husband's power of

control over her property and authorizing her to take and hold

property as if she were an unmarried woman, have abolished both his

power to invalidate the lease and also her power to repudiate it after

his death.

A private corporation may make a lease of its property provided that

in doing so it acts within its charter. A municipal corporation, while

it may lease property belonging thereto of a private nature, cannot

lease property which has been devoted to public use. A corporation

whether public or private may take a lease of property so far as this

may be a proper means of carrying out the purposes for which the

corporation was created.

Executors and administrators may dispose of a lease belonging to the

deceased, or make new leases for terms within the period covered by

it. Trustees have a still larger authority to lease the lands

entrusted to them, unless restricted by the terms of their

trusteeship, or by statute. Though a member of a partnership, as we

have seen, is an agent, he cannot make valid lease of partnership

land.

What may be leased? Besides land, the right to a wharf, to flow with

water the land of another, to go over another's land. An ordinary

boarder, who has a room and boards in the house of another and who

retains the possession and care of his room, is not a tenant. On the

other hand the letting of an entire floor for lodgings may create a

tenancy, and so may even a single room. A lease for an unlawful

purpose is void, for example, for the sale of spirituous liquors

contrary to law.

If the premises are occupied by the lessee and his rent is paid as

specified in the lease, this is regarded as a ratification by him of

an invalid or void lease. To this rule are some exceptions.

A rule of construction may here be added; if a blank form is used in

making a lease and the printed and written parts or agreements are

inconsistent, the matters written are regarded as expressing the

intention of the parties.

Much might be said concerning the use of the premises. If a farm is

rented and the lease is silent on the matter, the law presumes that

the tenant will use it in a proper and husbandlike manner, like other

exemplary farmers in that vicinity. He must cultivate the soil

properly, preserve the timber, consume the hay as fodder to the

cattle, if such be the custom, and keep the buildings and fences in

repair. Manure in the ordinary course of farming belongs to the farm.

To manure made in livery stables a different rule applies and the

tenant can remove it. If the lease be of a mill it usually provides

how it shall be run, if it be a house in the city and nothing is said

about its use the law implies that there shall be no waste or

destruction beyond the ordinary wear and tear. To use the doors for

firewood is not uncommon with tenants, unless they are not burnable,

though surely it is not a proper use of a leased house.

A farm tenant has the right to take and use material found on the land

suitable and needful to repair the buildings, fences, also dead and

fallen timber for fuel. He cannot use shrubbery and ornamental trees

for this purpose, nor cut standing timber for this purpose. He is

entitled also to the way going crop, but must remove it during his

lease. He cannot go on the land afterward and remove crops, unless he

was prevented by some good reason from removing them while he was in

possession.

Can a lessee assign or sublet his lease? Of course this may be

forbidden, and often is by the lessor, without his consent. If the

lease is silent this can be done. If the lessee die, his executor or

administrator can assign the remainder of his term. A lease may also

be assigned if the lessee become insolvent, also by a new partnership

created by the addition or retirement of a member. A transfer by the

lessee of the whole or a part of his interest for a part of the time

is a sublease and not an assignment. And whenever a sublease is made,

the rights of the original lessor are not changed, nor does he

recognize in any way the sub-tenant unless by agreement, nor has he

any right of action against him. Of course there is nothing to prevent

the parties from making any arrangement that may be agreeable to

them.

As the lessee may assign or sublet unless forbidden, so may the lessor

part with his interest in the leased premises. When an assignment of

it is made, the assignee may sue in his own name for rent accruing

after the assignment.

The lease of a private residence is not a warranty that it is

reasonably fit for occupancy. Thus saith the law. Nor can a lessee,

unless the lessor has misrepresented the healthfulness of the place,

leave after the unwelcome discovery that it is not healthful. This

seems to be rather harsh, but the rule is founded on the presumption

that the lessee will examine the house before leasing and make proper

inquiries about its healthfulness.

By the common law the lessor was not required to make repairs. This

has been changed in some states by statute. He is not required to make

repairs needed and known to the tenant at the time of making his

lease. Hallways, staircases, elevators, and the like that are used in

common by the tenants of a building and are under the landlord's

control, must be kept in repair by him. If he shall let a many storied

building to several tenants, to each tenant a story, who have

exclusive possession thereof, the lessor will not be liable to any

lessee for the damage caused by another.

If the landlord agrees to make repairs and keep the tenement in good

condition, he is required to keep it in essentially the same condition

as it was when the tenant took possession. Should the house or other

building be destroyed by fire what then? An agreement to keep it in

good repair imposes an obligation on the landlord's part to rebuild.

But an agreement by the lessee to keep and leave it in good repair,

does not require him to rebuild should it be destroyed by fire, or

other cause without any fault of his own. If the lease provides that

the insurance money, when the landlord has insured the premises, shall

be applied to rebuild in the event of fire, he must regard his

agreement, but if there be no such agreement, the tenant cannot compel

his landlord to thus apply it. Should the lessor fail to fulfill his

agreement to repair, the tenant is not excused from paying his rent,

nor justified in leaving the premises. His remedy is to sue his

landlord for the damages or injury to himself. And even if the

premises be destroyed by fire the tenant must continue to pay his rent

unless he has been wise enough to relieve himself by a proper clause,

or unless some kindly statute has been passed relieving him on the

happening of such an event. No oral stipulation, that the parties

should make covering the effect of loss by fire or other contingency,

would be binding if contrary to the terms of the written lease. As

this is the highest form of the agreement, all verbal stipulations to

the contrary must give way.

A tenant can make no permanent alteration without his landlord's

consent; and should he do so and injure the premises the landlord may

recover damages, or, if such an alteration is feared or threatened, he

may prevent it by obtaining an injunction from a court ordering the

tenant not to make it and penalizing him should the order be

disobeyed.

When a lease is renewed, the new lease may be regarded in two

different ways. It may be considered as the continuation of the lease,

and thereby protecting all the interests created under it. And this

will be the case whenever the old lease clearly shows that if a

renewal should be made this was the intention of the parties. When

nothing is said, a renewed lease is a surrender of the old one and

different conditions may arise. It is important therefore when

providing for the renewal of a lease to specify what the parties

intend, whether a renewal or continuation on the old terms, or a

renewal on other terms to be fixed at another time.

Usually a lease specifies not only the amount of rent to be paid, but

the time of payment. If silent, yearly rent is not due until the end

of the year, quarterly rent at the end of the quarter, monthly rent at

the end of the month. When a lessee is evicted or turned out of

possession by his landlord, he is excused from paying rent. What,

therefore, is an eviction? Any act by the landlord, or by his agent,

impairing the worth of the premises to the tenant, for example, the

destruction of a summer house, turning rooting pigs into the premises,

the erection of a new building rendering the leased premises unfit for

occupation. One of the curious cases is the lease of a distillery

which could not be run because the landlord prevented the lessee from

getting a license. In like manner if the landlord is to furnish heat

and fails to do so, the tenant is justified in leaving. More

generally, any act by the landlord whereby the leased premises are

rendered unfit or impossible for the purpose intended, and affecting

the health and comfort of the tenant, is an eviction.

The eviction must be done by the lessor. An act done by a wrongdoer,

not under the lessor's order, will not justify the lessee in quitting.

Thus the darkening by an adjacent owner of the lessee's premises by

erecting a structure, however injurious it might be, would not justify

the lessee in quitting and refusing to pay his agreed rent. This is

one of the risks taken when making the lease.

Suppose a person occupying state land is evicted by the state, must

he continue to pay rent? In Missouri the rent ceases, or if evicted of

a part, he must pay rent on the remainder. In some states he must

still continue to pay his rent and then demand compensation for his

loss.

Sometimes land is rented on shares, a very common way in the olden

time. When this is done, the relation of landlord and tenant may be

created, or perhaps a partnership relation. If the farmer is to do the

work of a servant of the owner of the farm, receiving in return

therefor, a specified part of the crops, the agreement is one of

hiring and not a lease. If the farmer has rightful possession of the

use of the land, then the payment of his rent in produce does not

affect his relation as a tenant. The natural increase of stock leased

with a farm belongs to the tenant, and a landlord cannot recover for

the death of cattle in the tenant's possession, unless he can prove

his tenant's negligence. And if a lessee should sell part of the stock

contrary to the lease, the purchaser would be liable therefor.

A landlord often leases separate parts of a building to different

tenants, while the stairways and passages to them, though intended for

their use, are still under his control. He thus invites the tenants

and other persons having relations with them to use the approaches to

obtain access to their rooms or apartments, and is accordingly liable

when they are not kept in proper repair; the same as any owner of

structures either expressly or impliedly invites persons to enter

them. If therefore he should leave elevator shafts, or hatchways

unguarded, he would be clearly liable for the consequences. So, too,

should a mill owner have a defective bridge to his mill, forming part

of a common way thereto, he would be liable for the consequences.

The lessor is liable if he leaves his premises with a way or cellar

entrance, or coal hole inadequately guarded at the time the lessee

takes possession, but not if the guard or covering gets out of repair

during the tenancy, or is temporarily left unguarded by the tenant or

some third person. If the hole or other dangerous place is made

without proper authority, it is considered a nuisance and the owner is

liable for all injuries whether he has rented the premises or not. Who

is liable for injuries caused to travelers by ice and snow on the

pavement? This is a hard question to answer in a short space. If the

ice or snow has accumulated by reason of a defective roof, then the

landlord is liable because of its faulty construction. In some parts

of the country it is most difficult to keep the walks safe in winter.

Experience has led the parties to make stipulations defining and

fixing their liability. Many states also have statutes and cities

ordinances regulating the duties and liabilities of landlords and

tenants.

When a lease is about to expire a difficult question sometimes arises,

what can the tenant take away with him? Of course he can remove all

his furniture and the things that can be separated without injury to

the premises, but during his tenancy, he may have added things

possessing a more permanent nature, called fixtures, these he cannot

remove. The courts have had great difficulty in deciding in some cases

what these are. In a general way it may be said that whatever a tenant

adds to the premises can be removed, while he is still in possession,

without material injury to it, but he cannot remove anything

afterwards. Suppose the tenant erects a building, can he remove it?

One would not think of his building this for the benefit of his

landlord. Suppose he had built it on a foundation from which it could

be easily removed, a court would have no difficulty in deciding that

it belonged to the tenant. Many cases have arisen about ranges and

stoves. An ordinary stove of course can be removed; suppose it is

affixed to the house in such a way that some portion of the wall will

be detached by the removal, can this be done? Not if the wall will be

badly injured. How badly? This is a question of fact to be answered by

inquiry in every case. Among the fixtures that can be removed are

hangings and tapestries, ornamental chimney pieces, wooden cornices,

wainscoting affixed to the wall by screws and spikes, bells and bell

wires, chandeliers, cisterns and sinks though fastened by nails and

set into the floor, fire frame fixed in the fireplace, pipes for gas

or water, grates removable without injury to the building, pumps,

stoves, ranges and furnaces, gas ranges and water closet appliances,

washtubs fastened to the house, gas fixtures and shelves. A greenhouse

is not removable, nor gutters placed in the roof of a dwelling, nor a

stairway, nor flowers, shrubs, or bushes planted for ornamental

purposes.

Chattels placed by a tenant on leased premises for the purpose of

carrying on his business or trade are generally regarded as personal

property. Annexations of this kind are called trade fixtures and the

law is liberal in permitting their removal. Show cases, counters and

shelves, engines, boilers, machinery, tanks in a distillery, a bowling

alley, bar fixtures, even buildings are removable. The same liberal

rule applies to agricultural implements. A tenant, therefore, if

wishing to remove whatever he may have added, should be careful about

their nature, or protect himself by an effective agreement.

=Legal Remedies.=--Elsewhere we have shown how civil and criminal law

differ. In criminal proceedings the state is a party and prosecutes

offenders through agents or attorneys who are chosen or appointed for

that purpose. In all civil offenses the person injured prosecutes the

offender, through the courts established by the state for that

purpose. Suppose A owed B one hundred dollars for which he gave his

promissory note payable in ninety days from date, and which on its

maturity A declined to pay. B could then have recourse to a court of

law to collect the money. If knowing nothing about the mode of

proceeding he would employ a lawyer; if he was familiar with legal

proceedings he could do this himself.

What is the first step taken by a lawyer? He makes out a writ or

complaint stating B's course of action against A--that he has loaned

him a sum of money which he has not paid as he promised to do, and he

is summoned to appear in court at a certain time and place and answer

why he does not pay and the court is asked to render judgment against

him, if there is no defense, for the money due with the addition of

the costs incurred in seeking the aid of the court to collect the

money. This writ, declaration, or complaint is given to the sheriff of

the court where either A or B lives, who "serves" it on A. This

service consists in reading a copy of it by the sheriff, or by one of

his deputies or a constable, or other authorized person, to A, or in

leaving a true and attested copy thereof with him, which has become

the universal practice. This is the ordinary mode of beginning a legal

action against a person or corporation.

An action thus begun is followed by a trial of the case unless it is

settled. Usually the trial comes off within a few months, but not

infrequently long delays occur. If, after the introduction of

testimony, judgment is rendered in favor of B, an "execution" or order

is issued by the court directing the sheriff to levy on A's property,

whatever he may have, save a small sum, household furniture and the

like, and sell it and turn over the proceeds to B in payment of his

debt. If there was a balance left from the sale of A's property after

satisfying the judgment of the court and the costs of the legal

proceedings, it would be paid to A. This, in fewest words, is the mode

of proceeding in a court of law to obtain redress in a civil suit or

action.

There are several kinds of actions or remedies used in different cases

and these will now be explained. First, is the action of assumpsit.

This is the form of action used whenever one sues to recover on all

kinds of promises, those implied by the law as well as express

promises, not under seal. They include all ordinary promises to do

things either orally or in writing. Next, is the action of covenant.

This is used whenever one sues to recover for some failure on the part

of a person who has given a deed or other sealed writing. Suppose the

purchaser of land discovered there was an unpaid mortgage thereon,

though the deed covenants or declares that it is free from all

encumbrances. The vendee or purchaser would sue to recover for a

broken covenant. Another action is replevin which is used to recover

specific goods. Suppose someone had taken my horse and refused to

deliver the animal to me. The proper remedy would be replevin. Suppose

I did not wish to have the horse back, but only its value or worth.

Then the proper remedy would be an action of trover. Another form of

action in much use is called trespass. This is used to recover

damages for injuries to persons and property. If a person knocked me

down and I sued him to recover for the injury, trespass would be the

proper form of action. In many states an action in tort instead of

trespass is the proper remedy. If one should come upon my land and

take away wood, grass, stone, or in any way injure it, trespass also

would be the form of action. Ejectment is the action employed to eject

or turn out a wrongful possessor and recover possession of land. In

this action the title or ownership of the land lies at the foundation;

and the title to many a piece has been settled in an action of

ejectment. One of the most familiar actions is habeas corpus, which is

employed to recover a person's liberty from illegal restraint. As the

actions of slander and libel have been described, only two others

require notice, mandamus and quo warranto. The first of these is used

to compel one to do something. A familiar example is that of a city

which refuses to pay a judgment that has been rendered against it. The

court in this action commands the city to pay, and it must obey unless

there exists a legal defense. A quo warranto is the form of legal

action to which a person resorts to get possession of an office to

which he is entitled, but is denied him. Suppose one is elected mayor

of a city, but for some reason or other, the one in possession is

determined to keep him out. He would bring this action and a court

would then decide whether he was entitled to it or not, and if he

were, the court would proceed to put him in possession.

In many of the states, especially the newer ones, not all of these

different forms of action are used. Only one form, called a complaint,

includes most of them. While the substitution of this has simplified

the modes of redress, the substance of the complaint really embodies,

as before, the different kinds of injuries above explained.

=Life Insurance.=--The contract of life insurance is a mutual

agreement whereby the insurer agrees on the payment of a fixed sum or

premium to pay to a person designated in the policy on the happening

of a contingency, usually death, a sum of money. By another form of

insurance the insurance may be made payable at a fixed time, or

before, should the insured die before that period.

Putnam's Handy Law Book for the Layman · 第 11 / 24 段