may be assigned by operation of law; as, for instance, where the lessor or the lessee dies, or where either becomes a bankrupt.

Where a lessor dies, his personal representatives more nearly step into his place as concerns his personal property, than the heir does as concerns his real estate; for if a man binds himself, his executors are bound, though not named, while this is not so strictly true as respects the heir. Subject to this qualification, we are safe in stating the general rule to be, that the reversion of the lessor is either descendible, and so goes to the heir, who will stand in his ancestor's stead, or it is a chattel and passes to the executor or administrator, who will represent the deceased person.1 But where the lessee dies, his interest vests in his executors or administrators alone by virtue of their office; for the term of years is but a chattel, as we stated at the outset, and the heirs, as such, have no immediate concern in the lease. As the personal representative of the deceased lessee, and no more, the executor or administrator may be sued for accrued rents or for past breaches of covenant; and yet the law does not for this make him liable beyond the amount of assets in his hands. But since the personal representative is regarded as a legal assignee of the lease as well as of the term, he ought to make inquiry as to its value before he assumes to act as an out-and-out lessee; since otherwise he might find himself in the unpleasant predicament of being held answerable to the lessor for subsequent rents without the corresponding means of payment. Like other assignees, the executor or administrator may (unless restrained by the covenants contained in the lease) assign over, and thus discharge himself from individual liability, so far as concerns all subsequent rent and breaches of covenant; 2 or he may surrender the

v. Wheeler, 9 Cow. 88; Taylor Landl. and Ten. § 449. See Moule v. Garrett, L. R. 5 Ex. 132.

1 See Smith Landl. and Ten. 298, and Maude n.; Taylor Landl. and Ten. §§ 459-463; Co. Lit. 209 a; Lougher v. Williams, 2 Lev. 92.

2 See Smith Landl. and Ten. 299301; Taylor ib. §§ 459-461; Schoul. Ex'rs & Adm'rs, §§ 223, 353; Taylor v. Shum, 1 B. & P. 21; Wollaston v. Hakewill, 3 M. & Gr. 297; Quain's Appeal, 22 Penn. St. 510. But see Van Rensselaer v. Platner, 2 Johns. Cas. 17.

lease if the lessor accepts. For breach of covenant by the lessor after the lessee's death the latter's representative sues correspondingly.2

With regard to the assignee of a bankrupt, the rule is that he may take possession of the leased premises, as part of the assigned estate, and assume full control; but, if he does so, he is expected to bear the burdens as well as to enjoy the benefits of the lease. Here, again, common prudence dictates that the legal representative should make proper inquiries concerning the value of the lease before assuming control; or, having once made himself personally liable, that he should assign over or surrender without delay when he finds the lease unprofitable. Demands under the lease for rent or otherwise, which accrued prior to the lessee's bankruptcy, and remained unsettled, would be payable on the usual principles, from the bankrupt's estate in the hands of the assignee.3

§ 36. Underletting distinguished from Assignment. - Akin to the subject of the assignment of leases is that of underletting; and we often find that one and the same covenant in a lease provides against either act on the part of the tenant.4 While the assignment of a lease carries the whole interest in the term, an under-lease reserves to the lessee some portion still of that interest, however small it may be. And the material distinction between the two is this: that while a certain privity of estate subsists between the original lessor and the assignee of a lease, so as to render the latter liable on some of the covenants (as we have already noticed), there is no privity whatever between the original lessor and an under-lessee; for which reason the under-lessee cannot be sued by the original lessor upon any covenant contained in the lease. It may be highly consistent with a lease that the lessee should have a liberal right to underlet, though not to assign.

1 Deane v. Caldwell, 127 Mass. 242.

2 Smith v. Dodds, 45 Ind. 432. 3 Smith Landl. and Ten. 302–306; Taylor ib. §§ 456-458, and cases cited; Turner v. Richardson, 7 East, 335; Copeland v. Stephens, 1 B. & A.

593; Morton v. Pinckney, 8 Bosw. 135.

4 Supra, § 32.

5 Taylor Landl. and Ten. §§ 16, 108, 109, and cases cited; Doe v. Bateman, 2 B. & A. 168; Doe v. Byron, 1 C. B. 623-626; Davis v. Morris, 36 N. Y. 569.

§ 37. Modes of terminating a Tenancy. The next topic to be considered is that of determining or putting an end to the tenancy of a term of years. There are five ways in which a lease may be terminated: first, by lapse of time; second, by merger; third, by surrender; fourth, by forfeiture; fifth, by notice to quit.1

§ 38. The Same Subject; Lapse of Time; Merger; Surrender. - Lapse of time will, of course, put an end to the tenancy of a term of years. For when I take a lease of premises for a definite length of time, or subject to the happening of a certain contingency, the lease necessarily terminates, on the general principle of a contract, when the definite period has elapsed or the contingency has happened. With the expiration of such a lease the tenant's right of occupation ends, and the landlord may resume possession of the premises at

once.

Merger likewise dissolves the relation of landlord and tenant. Of this quaint topic we need only observe that the doctrine of merger applies where two distinct estates meet in the same person, so that the smaller estate becomes merged or drowned in the larger. If I take a lease, and then, before the lease has expired, purchase the premises outright, or inherit them, the lease is at an end; and this through the operation of merger.

But, again, a tenancy for years may be determined by surrender; that is to say, I may give up my lease with the lessor's sufficient permission. A surrender, or yielding up, may be either express or by operation of law. No special form of words is requisite in order to constitute an express surrender, nor is it necessary that the lease should be formally redelivered and cancelled. Anything will suffice which evinces a mutual agreement and assent that the premises be surrendered, followed by an actual yielding up of possession to the landlord. Surrender by operation of law takes place where

1 Smith Landl. and Ten. 215; Taylor ib. § 464.

2 Ludford v. Barber, 1 T. R. 86; Ackland v. Lutley, 9 Ad. & E. 879; Ellis v. Paige, 1 Pick. 43; Bedford v.

McElherron, 2 S. & R. 49; Jackson v. Parkhurst, 5 Johns. 128.

32 Bl. Com. 177; Bouvier's Dict. "Merger."

one does an act, such as accepting a new lease, which would be inconsistent with the continuance of the old term.1 The Statute of Frauds prohibits the surrender of terms of years, or other interests in lands, unless by deed, or note in writing, or by operation of law. But much difficulty is experienced in laying down the precise extent to which the exception "by operation of law" may be carried. Inasmuch as the effect of a surrender is to terminate the relation of landlord and tenant completely, the legal consequence appears to be that a lessee who has underlet and afterwards surrenders to the lessor loses thereupon all right to hold the under-lessee to his covenants, and to collect the rent that may justly have accrued; while the lessor, on his part, cannot, by the act of surrender, destroy the estate which the under-lessee had already acquired in the premises. This inequitable condition of things has been remedied in England and some parts of the United States by appropriate legislation.1

§ 39. The Same Subject; Forfeiture. Forfeiture likewise determines a tenancy. It is laid down that a tenant commits a forfeiture if he disclaim and deny his landlord's title; though not where this is by mere word of mouth. The old common law was very strict with respect to forfeiture; more so than courts of the present day would be likely to rule. But, besides this sort of forfeiture, there is another, which occurs whenever some condition has been broken in a lease which reserves to the lessor the right to re-enter thereupon and repossess himself of the premises. Such conditions are rather strictly construed; and it is held that no re-entry can

1 Co. Lit. 337 b; Schieffelin v. Carpenter, 15 Wend. 440; Challoner v. Davies, 1 Ld. Raym. 402; Taylor Landl. and Ten. § 507 et seq., and cases cited; Smith ib. 223–233.

2 29 Car. II. c. 3, § 3. See supra,

$ 25.

3 See Lyon v. Reed, 13 M. & W. 285, which comments upon former cases. And see Maude's note to Smith Landl. and Ten. 228, where the English cases are fully cited. For the

American decisions, see Taylor Landl. and Ten. §§ 510-516, and notes passim.

4 See Stat. 4 Geo. II. c. 28, § 6; Doe v. Marchetti, 1 B. & Ad. 715; Smith Landl. and Ten. 232, 233; Taylor ib. § 518; 1 Rev. Stats. N. Y. 744; 4 Kent Com. 103; 117 Mass. 357.

5 Bac. Abr. Leases, tit. 2; Doe v. Wells, 10 A. & E. 427; Smith Landl and Ten. 233, 234; Taylor ib. §§ 488501.

take place for mere breach of covenant, as in neglecting to pay rent, unless the lease clearly provides for re-entry and forfeiture in such a contingency. And the lessor waives the forfeiture, by accepting rent after any particular breach of covenant, or by other acts evincing an intention on his part to let the lease continue; though it is otherwise where the cause of forfeiture is a continuous one.1

§ 40. The Same Subject; Notice to quit; Modes. Lastly, a tenancy is terminated by a notice to quit, given in a regular manner and under suitable circumstances. Notice to quit is necessary to terminate a general tenancy at will, or from year to year, or any other uncertain tenancy not at sufferance;2 which last species of tenancy arises where one lawfully comes into possession, but holds over wrongfully after his interest has determined. But it does not apply to a lease for years. Thus, if I have a lease for five years, I am not entitled to a notice at the expiration of that period; for I have no right to remain longer, since lapse of time, as has been shown, is enough to put an end to the lease. But if, as frequently may happen, the landlord by some act manifests his consent for me to occupy the premises longer, though no new lease be made out, I shall then become a tenant from year to year, or quarter to quarter, or other appropriate period for paying rent, and must be served with a proper notice to quit before he can bring an action of ejectment against me or otherwise regain possession of the premises. The right of notice to quit is reciprocal, and it can be given by the tenant as well as his landlord.5 Thus, to continue the illustration, if I, as a tenant from year to year, or shorter rent-paying period, desire to leave, rather than the landlord to have me go, it is my duty to serve a proper notice of intention to quit upon

1 Doe v. Woodbridge, 9 B. & C. 376; Doe v. Jones, 5 Ex. 498; Stuyvesant v. Davis, 9 Paige, 427; Taylor Landl. and Ten. §§ 488-501, and cases cited. See Toleman v. Portbury, L. R. 7 Q. B. 344.

2 Taylor Landl. and Ten. §§ 466487; Smith ib. 234-249.

32 Bl. Com. 150; 4 Kent Com.

116. In some States a tenant at sufferance must be served with a notice to quit, unless he is actually or by implication a trespasser. See Taylor Landl. and Ten. §§ 64, 65.

4 Supra, § 38.

5 Taylor Landl. and Ten. § 470; Hall v. Wadsworth, 28 Vt. 410.