1890 SEARS v. The indenture then contained a grant of a right of way therein described and a covenant by the lessees to pay the rent by the lease reserved at the days and times therein apSAINT JOHN. pointed for that purpose. The indenture then contained Gwynne J. the clause following: CITY OF It is hereby mutually agreed, covenanted and understood by and between the parties to these presents that in case the said mayor, aldermen and commonalty of the city of Saint John should erect and put up any buildings or improvements upon the said demised premises within and during the said term, the same shall be valued and appraised by two indifferent persons, one to be chosen by and on the part of the said mayor, aldermen and commonalty, their successors or assigns, the other by and on the part of the said Edward Sears, his heirs and assigns, which two persons, in case of disagreement, should choose a third, the appraisement or determination of any two of whom should be final and conclusive, and it should be at the option and election of the said Edward Sears, his heirs or assigns to pay or cause to be paid to the said the mayor, aldermen and commonalty, such appraised value of such buildings or improvements to the extent of five hundred pounds or to extend and continue the lease unto the said mayor, aldermen and commonalty for a further term of fourteen years at the same yearly rent payable in like manner and under the like covenants, conditions and agreements as in the said indenture are expressed and so as often as such case should happen at the end or expiration of any lease or demise of the said premises for any further term or terms there should be a like valuation and the like option as hereinbefore mentioned. Now this was an indenture of lease for a term of 14 years certain. The term created thereby must, and did, terminate on the 1st May, 1869. The lease contained, it is true, a covenant by the lessor that in the event of certain contingencies happening, he, his heirs or assigns, would execute another lease for a further term of 14 years to be computed from the expiration of the first term; but unless the specified contingencies should happen, no obligation was imposed upon the lessor to give such further lease, and until such further lease should be executed the relation of landlord and tenant between the parties for such new term of 14 years could not be created, for by the law of New Brunswick, Consolidated Statutes, ch. 67, sec. 7: All leases, estates or other interests in lands not put in writing and signed by the parties or their agents thereunto lawfully authorized by writing shall have the force of leases or estates at will only except leases not exceeding the term of three years. 1890 SEARS บ. CITY OF SAINT JOHN. As the above covenant of the lessor was inserted wholly Gwynne J. and solely for the benefit of the lessees they could waive the benefit of it. In fact, they alone could be the actors in any proceeding for the enforcement of it. The lessor never could compel the lessees against their will to accept a new lease and so to become tenants of the lessor, his heirs or assigns for a further period of 14 years, for they entered into no contract whatever in writing or otherwise to accept such a lease at the mere will of the lessor, his heirs or assigns. Now, the contingencies, the occurring of which imposed an obligation upon the lessor, his heirs and assigns, under his covenant, as to the execution of a new lease for a further term of 14 years were: 1st. That within and during the first term the lessees had erected and put up some buildings and improvements which remained upon the demised premises at the expiration of the term; and inasmuch as the covenant was for the benefit of the lessees, which benefit they might waive; 2ndly. That the lessees should claim to be paid the value of the buildings and improvements so made and remaining on the demised premises. It was only upon these events occurring that the provision contained in the lease as to the valuation of such improvements and the payment thereof, or the execution of a new lease for a further period of 14 years by the lessor, his heirs or assigns came into operation. If no buildings and improvements had been erected during the term; or if none such remained upon the premises at the expiration of the term; or if any being there, the lessees either because of the smallness of their value, or for any other reason, claimed no payment whatever in respect of them, there would be no valuation under the provision as to valuation in the lease, and the lessor, his heirs 32-SUP. CT. CAS. 1890 SEARS บ. CITY OF SAINT JOHN. or assigns, would be under no obligation whatever arising under his covenant, either to pay anything to the lessees or in lieu of payment to execute a new lease. What in fact occurred was this. The lessees did during Gwynne J. the term erect certain buildings which were upon the demised premises at the expiration of the term on the 1st May, 1869, but there is no evidence that the lessees made any claim to be paid for such buildings. All that occurred, so far as appears, and therefore all that for the purposes of the present case must be taken to have occurred, was, that without anything having been said by the lessor or the lessees as to valuation of the buildings or as to payment therefor, or as to a new lease for a term of 14 years, the lessees simply continued in possession after the expiration of the term and paid the old rent until the 1st of October, 1877. Upon the third of October, 1874, while the lessees were thus in possession, the lessor executed an indenture whereby he granted bargained and sold the demised premises, together with other lands, to Robert Sears, John Sears, George Edward Sears and William Macara Sears, upon certain trusts in the said indenture declared and amongst others, upon trust to demise from year to year or for any term or number of years, with or without a clause of renewal or provision for payment for improvements all or any part of the real and leasehold estate thereby conveyed. The grantees under this deed continued to receive from the present defendants until the first of October, A.D. 1877, without anything being said as to the nature of the defendants' tenure, rent at the same rate as the defendants had previously paid. Now, under these circumstances,-What was the relation existing between the defendants and the owners in fee for the time being of the premises in question from the expiration on the 1st of May, 1869, of the term created by the indenture of lease of the 4th of July, 1855, until the 1st of October, 1877? And the answer must be, as it appears to 1890 SEARS v. CITY OF me, upon principle and the authority of Hyatt v. Griffiths (s), that the defendants were tenants from year to year subject only to such covenants in the expired lease as were applicable to or might be incident to a tenancy from year SAINT JOHN. to year; but this is a question now of little importance, for Gwynne J. Robert Sears, John Sears, George Edward Sears and William Macara Sears, the grantees of the indenture of the 3rd of October, 1874, and the defendants mutually agreed as to the terms upon which the defendants should continue in possession of the premises in question, which terms were embodied in an indenture bearing date the said 1st October, 1877, whereby, after reciting the indenture of lease of the 4th of July, 1855, and the indenture of the 3rd of October, 1874, and the provision therein contained that it should be lawful for the trustees thereunder to demise from year to year or for any term or number of years, with or without clause of renewal or provision for payment of improvements all or any part of the real or leasehold estate thereby conveyed; and after reciting further that the said Robert Sears, John Sears, George Edward Sears and William Macara Sears, parties to the said indenture, now in rental of the first part had agreed to extend and continue the lease and demise of the said lot and premises comprised in the said indenture of lease (of the 4th July, 1855) with the said right of way unto the defendants, for a further term of fourteen years computed from the expiration of the said first term, and that the defendants had agreed to accept such lease, the said indenture witnessed that the said parties thereto of the first part did demise and lease unto the defendants all and singular the lands and premises comprised in the said rented indenture of lease: To have and to hold the same unto the defendants for the term of fourteen years from the 1st day of May, 1869, thence next ensuing, and fully to be complete and ended at the same yearly rent payable in like manner and under the like covenants, conditions and agreements as are expressed and con (s) 17 Q.B. 505. 1890 SEARS CITY OF tained in the said recited indenture of lease and the said defendants did thereby accept the said extension of lease at the rent upon the terms and conditions aforesaid, and SAINT JOHN. did covenant with the parties to the said indenture now in Gwynne J. recital of the first part that the defendants should and would yearly and every year during the continuance of the said extended term of fourteen years well and truly pay the said yearly rent thereby reserved. Now, it is obvious that it was quite competent for the defendants and the parties of the first part to the above recited indenture to agree upon any terms and conditions they should think fit to be inserted in the new lease. It was quite competent for the defendants to waive all claim for payment of the value of any buildings or improvements they might erect or make, if they should erect or make any within and during the second term. It may be that they had no intention whatever to erect or make any such, and therefore that they had no object in having a clause inserted in the second lease, similar to that which was in the first, providing for payment for improvements. They had not, under the terms of the original lease, any right to demand and insist upon the insertion in any subsequent lease which might be executed, of a provision for payment at the expiration of a second or subsequent term for improvements which had been made within and during the first term. If a clause similar to that in the original lease providing for payment for improvements or in lieu thereof for a new lease should be inserted in any second or subsequent lease under the provision in that behalf contained in the original lease, it would only make provision in respect of improvements to be made within and during the term by such second or subsequent lease granted, and not for a valuation at the expiration of a second, third or fourth term of 14 years of improvements which had been made during the first term by the original lease granted. Payment on a valuation at the expiration of each term, for buildings and improvements erected and made within and during such term, or in |