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or that they judicially know that there | estate because not under seal, upon considercould be no reason or reasons for the act. ation of support, cannot, where the statute

It is next urged that the act is invalid does not require an ordinary lease to be because its going into effect is made to de- under seal, maintain a real action to repend upon some other authority than is cover the possession while the lessee comprovided in the Constitution, in violation of plies with his agreement. article 1, § 25, and in violation of $ 26,

(December 17, 1914.) art. 1, as authorizing the suspension of laws without the authority of the general

XCEPTIONS by defendant to rulings of assembly, and invalid under articles 3 and 4 of the Constitution, as delegating legis- took County made during the trial of an lative powers to the Railroad Commission action brought to recover possession of cerunder $85 and 7 of the act.

tain real estate, which resulted in a judg. Appellant is not prosecuted here for the violation of any order of the Railroad Com

ment for plaintiff. Sustained.

The facts are stated in the opinion. mission, the taking effect or suspension, en

Mr. A. B. Donworth, for defendant: forcement, or validity of which might be involved under $8 25 and 26 of article 1, entitled to recover possession of the prop

The lease was valid, and plaintiff is not but for the violation of SS 2 and 3 of the

erty. act, which are not involved with SS 5 and

Sweetser v. McKenney, 65 Me. 225; Hurd 7, and are entirely independent; and if the

v. Cushing, 7 Piek. 169; Cook v. Bisbee, 18 latter are invalid, as to which we express Pick. 527; Effinger v. Lewis, 32 Pa. 367. no opinion, the valid and the invalid sec

Messrs. Shaw, Burleigh, & Shaw also tions are independent and readily separable,

for defendant. and appellant cannot complain of an act

Messrs. Powers & Guild and William which, if invalid, is not in question and

P. Allen, for plaintiff: does not affect it. Hammer v. State, 173

The instrument in question purports to Ind. 199, 204, 24 L.R.A. (N.S.) 795, 140 Am. St. Rep. 248, 89 N. E. 850, 21 Ann. Cas. convey a life estate in the demanded prem

ises. 1034.

Doe ex dem. Warner v. Browne, 8 East, The judgment is affirmed.

165; Washb. Real Prop. 5th ed. 121, 122.

A life estate in land cannot be conveyed Petition for rehearing denied.

by a written instrument not under seal.

Doe ex dem. Warner V. Browne, supra; Writ of error dismissed by the Supreme Stewart v. Clark, 13 Met. 79; People ex rel. Court of the United States, according to Norton v. Gillis, 24 Wend. 201; 1 Washb. stipulation, October 13, 1914, 235 U. S. 710, Real Prop. 5th ed. 124; 1 Taylor, Landl. 59 L, ed. 35 Sup. Ct. Rep. 198.

& T. 8th ed. § 34.


Haley, J., delivered the opinion of the MAINE SUPREME JUDICIAL COURT. court:

This is a real action brought to recover SARAH CALKINS

the possession of a lot of land situated in V.

Caribou, county of Aroostook, and

heard at the February term, 1914, by the

court without a jury on an agreed state(112 Me. 474, 92 Atl. 529.)

ment of facts, with the right of exception. Landlord and tenant - invalid life es

The material facts of the agreed statement tate recovery of possession.

are that the plaintiff was devised for her A lessor of an estate by a lease pur- life by the will of her husband, proved and porting to be for life, but invalid as a life allowed in the probate court on the third Note. Right of lessor to maintain an, lease, the covenant is not binding and the

action for possession against his cove- lessor can maintain an action for possession, nant not disturb lessee's pos- even against the covenant. The lessee was session, when the covenant is repug- compelled to go into a court of equity to nant to the estate granted.

obtain relief. Since law courts in almost

all jurisdictions now permit equitable deThe law courts early established the rule fenses to actions at law, there seems to be that if the lessor's covenant, express or im- no good reason why those courts ought not plied, from the nature of the estate intended to hold that the lessor is estopped by an exto be created, not to disturb the lessee in press or implied covenant not to disturb the his possession and enjoyment of the premis- lessee in his possession; so that, although es, is repugnant to the very nature and char- it be impossible to regard the covenant as acter of the estate actually created by the l the determining factor in fixing the charac

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Tuesday of December, 1895, the lot of land , Pierce, am to pay all taxes on said farm, demanded and described in the writ; that and if I should die before this lease expires, on May 4, 1909, the plaintiff and the de- this lease is void. The house on this said fendant entered into the following agree farm is not included in this lease. ment:

Within a week of the date of said agree. Caribou, Aroostook County, Me., ment the defendant, Rosean Pierce, went

May 4, 1909. into possession of the premises described in

said writing, which are the premises deI, Sarah Calkins, this 4th day of May, | manded in the writ, and has remained in 1909, do lease to Rosean Pierce my home possession ever since. stead farm in the town of Caribou, this The parties agreed that the only conbeing a life lease and said Rosean Pierce is tested point was the construction of the to support me, Sarah Calkins, as long as lease or writing above mentioned, submitI live, and said Sarah Calkins is to live ted by the defendant under the above state and stay with me as long as she lives. I of facts. am to clotbe and support the same at my The court filed the following ruling: “I home for the rent of her farm. I, Rosean' think the writing relied upon by the deter of the estate, yet it can be given the force, in an action at law by his grant, to mainof a simple contract.

tain an action for possession. To say that Most of the cases in which the question the estate is terminable at the will of the has arisen involve a lease in terms deter-| lessor, but that he estopped to sue for minable solely at the will of the lessee, the possession by the very grant or covenant lessor's covenant not to dispossess him be- which operated to create a tenancy at will, ing sometimes express and sometimes im- would be simply stating a paradox, so far plied from the grant. It will be seen, infra, as technical pieading in the law court goes. that a few courts have held that even though Some courts in the United States have the lease is under seal, it creates only an followed the rule that a lease that fixes no estate at the will of the lessor, while most time for the termination of the estate, but courts follow what is believed to be the cor- expressly gives the right to terminate to rect rule, i. e., that the lessee takes a free- the lessee only, creates an estate at will of hold estate either for life or in fee, according the lessor, and he can maintain an action to the terms of the particular instrument for possession. Doe ex dem. Pidgeon v. Richand other considerations not material here.ards, 4 Ind. 374; Knight v. Indiana Coal & But if, for any reason, such as lack of seal I. Co. 47 Ind. 105, 17 Am. Rep. 692 (action or other defect, the particular instrument by lessor to quiet title); Cheever v. Pearson, cannot pass a freehold estate, then the les- 10 Pick. 266; Corby v. McSpadden, 63 Mo. see takes only an estate at the will of the App. 648 (by way of argument); Western lessor. It is clear that the covenant in ali Transp. Co. v. Lansing, 19 N. Y. 499; Den these cases is repugnant to the very nature ex dem. Mhoon v. Drizzle, 14 N. C. (3 Dev. and character of an estate at the will of the L.) 414; Beauchamp v. Runnels, 35 Tex. Civ. lessor. So, except in those cases where the App. 212, 79 S. W. 1105 (forcible entry and lease can be construed to pass a freehold es- detainer for possession); Cowan v. Radford tate, the covenant is not binding, and the Iron Co. 83 Va. 547, 3 S. E. 120, 15 Mor. lessor can, in an action at law, recover pos- Min. Rep. 453 (merely an approval of the session from the lessee, since the lease principle); Reese v. Zinn, 103 Fed. 97. creates only a tenancy at will, except in These cases are in harmony with the practi: jurisdictions in which equitable defenses cally unanimous opinion of the courts so far are permitted in actions at law. See cases as the soundness of the rule is concerned, cited, infra. The note is not limited to this and they are not in harmony only in the fact particular class of leases, but the same prin- that these courts apply the rule when the ciple is the basis of the decisions involving lease is under, seal. The courts in these leases for a term of years, from year to cases have held, although the leases were year, or for life.

under seal, exactly what other courts would "When the lease is made to have and to have held only in the absence of the seal. lold at the will of the lessor, the law im- See, infra. The fact that other courts would plieth it to be at the will of the lessee also, have construed the lease, it being under seal, for it cannot be only at the will of the les- so as to convey an estate that would not be sor, but it must be at the will of the lessee repugnant to the covenant, does not detract also. And so it is when the lease is made from the value of these cases on the questo have and to hold at the will of the lessee; tion here under discussion. As construed, this must be also at the will of the lessor; they passed an estate repugnant to the coveand so are all the books that seom prima nant. For the purpose of this note the facie to differ clearly reconciled." Co. Lit.court's construction as to the estate passed 55, a. If the words, “this must be also at must be accepted. the will of the lessor," are accepted without In Doe ex dem. Pidgeon v. Richards, 4 qualification, clearly the lessor-except in Ind. 374, the lease was practically the same jurisdictions where equitable defenses are as the one in CALKINS v. PIERCE, except permitted in actions at law--is not estopped I that it was sealed, and instead of being

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fendant, if it had been sealed, would have property described in the defendant, for, operated to create a tenancy for life. A as said by the court in Hurd v. Chase, 100 tenancy which operates as an estate for life, | Me. 561, 62 Atl. 660: “It may be conceded being a freehold, can only pass by deed, that that the plaintiff has the legal title to a life is by writing under seal. It follows that estate in the land, but to maintain this acthe writing referred to is invalid to create tion (ignoring technicalities in pleading) any estate or right of possession in the de. she must be entitled to possession as well. fendant, Rosean Pierce,” and ordered judg. Rev. Stat. chap. 106, $ 5. One may retain ment for the plaintiff, to which the defend his title to real estate while debarring him. ant excepted, and the case is before this self from right of entry and possession.' court upon her exceptions.

The plaintiff relies upon § 35 of Taylor The ruling of the court that "a tenancy on Landlord & Tenant, which, after stating which operates as an estate for life, being that a lite estate can only be created by a freehold, can only be passed by deed, deed, reads: "An agreement not under seal, that is, by writing under seal,” is undoubt that a lessor should not turn out the tenedly the law. But it does not follow that ant so long as he paid rent, has been held the writing referred to is invalid to create invalid, because the tenancy created by it any estate or right of possession of the would not be determinable so long as the expressly for life, it was for “so long as he , cases. The rule is so limited by the great (the lessee) desires." The action in eject- weight of authority, in practice at least, for

1 ment for possession was brought in the , it is held that a lease under seal conveys right of the lessor aiter notice to lessee to a freehold estate if by its terms its terminaquit. The court quoted Lord Coke's rule in tion is dependent wholly upon the will of null, and applied ine same by sustaining the the lessee. in England it usually creates plaintiff's action.

a lite estate for tue reason that the word In Den ex dem. Mhoon v. Drizzle, 14 N. C. heirs" is necessary to convey a fee simple (3 Dev. L.) 414, the term was "during his estate, but in some states in this country natural life or so long as said Drizzle may it conveys the fee (see citations by Titřany wish to tend it himself, and no longer.” Ai- in the section cited supra). Cases in which though iessee was in possession and had it is held that a lease terminable solely at cleared a great portion of the land, the the will of the lessee creates a life estate court, while admitting that it was a hard or conveys a fee are not in point here, excase, applied Lord Coke's rule and sustained cept perhaps indirectly. For example, in an action in ejectment by a judgment credi. Lewis v. Ellinger, 30 Pa. 281, second appeal tor of the heirs of the iessor arter the lat. 32 Pa. 367, a īcase of property at an annual ter's death, hoiding that the lease created rental was made for the term of one hundred only a tenancy at will, which was terminat- / years and thereafter as long as the lessee, ed by the death of the lessor. The lease his heirs and assigns, shali think proper. was under seal.

At the expiration of the one hundred years, And the same rule has been applied where the parties who had succeeded to the rights the lease was’ for a definite term of years, of the lessor brought ejectment. It was held but the lessee expressly given the right to that a fee simple estate had passed by the terminate at any time during the term. instrument, since it met all formal requireEclipse Oil Co. v. South Penn Oil Co. 47 W. ments to convey such an estate, but the Va. 84, 34 S. E. $23, 20 Mor. Min. Rep. 234. court quotes Lord Coke's rule and fully ex

However, convincing arguments have been plains the fact that if the instrument had presented tending to show that Coke had in not been under seal, the rule would be apmind, when he made the statement, only plicable. leases without livery of seisin, which at From what is said, supra, the reason for that time was necessary to the creation of Lord Coke's rule becomes apparent. The les. a freehold estate (after the seal and formal sor is permitted to recover against his coveexecution took the place of livery of seisin, nant only when the covenant is repugnant Coke's statement would apply only to leases to the very nature or character of any esnot under seal or otherwise defective as tate that could possibly be conveyed by the conveyances of freehold estates). The au- instrument. The covenant is coextensive thorities in support of this position lead with a life estate, which is a freehold. By far beyond the scope of the present note. construing the instrument as a conveyance Therefore, it must sutlice to say that the ar- of a freehold estate there is no repugnancy. guments produced and the authorities cited But if there were no livery of seisin (later, in Tiffany, Landlord & Tenant, vol. 1, § 13 | if there were no seal) the lease could not (1) p. 101, in support of this position, leave convey a freehold estate, and the covenant scarcely room to doubt that the position is was repugnant to the very nature and charthe correct one. But for the purpose of this acter of the estate granted by the lease, note it does not make much difference hence the lessor was permited to recover whether Lord Coke and other writers on the against it. same point meant to limit the rule to leases The court in CALKINS v. PIERCE, after without livery of seisin or not, for the prin- reviewing Doe ex dem. Warner v. Browne, ciple of the rule remains correct if it is so 8 East, 165, says: "The only point that limited, but it becomes applicable to fewer case decided was that an estate for life can tenant complied with the terms of his, sale or sell any article that may be inagreement, and would therefore operate as , jurious to W. Warner in his business.” an estate for life, which, being a freehold, It was not claimed the tenant had broken can only pass by deed.”

any of the conditions, but the plaintiff The authority for the text is Doe ex dem. rested his case on proving half a year's Warner v. Browne, 8 East, 165. An exam- notice to the defendant to quit on the 25th ination of the case shows that it does not day of March, and the question was whether support the test to the extent claimed by the lessor had a right to determine the the plaintiff. It was an action to recover tenancy on such notice, considering the depossession of a messuage that the defend- fendant as tenant only from year to year. ant was in possession of under an agree- At the trial Lord Ellenborough, Ch. J., ment not under seal, whereby the defendant held the notice to be good, and a verdict was was to have possession of certain prem- accordingly taken for the plaintiff with ises for a certain rent, payable quarterly, I leave to the defendant to move to enter a which contains the following clause: "That nonsuit; a rule having been obtained for W. Warner shall not raise the rent nor turn that purpose, upon the ground that the out J. Browne so long as the rent is duly agreement operated as a lease for so long paid quarterly, and he does not expose to as the tenant pleased and he complied with only be created by deed or will, and that the, cy from year to year, such as this is conwriting did not create a ne estate, but tended to be, that the option of determining did create an interest in the land, viz., it should rest solely with the tenant. a tenancy from year to year.” With When Lawrence, J., said: If this interest all deference to the court, it is sub- be not determinable so long as the tenant mitted that it did not adequately state the complies with the terms of the agreement, it holding of the English court. That case wound operate as an estate for life, which was tried upon the theory that the writing can only be created by deed, as a feoffment created a tenancy from year to year, mak- or a conveyance to uses. The notion of a ing a decision on that point unnecessary. tenancy from year to year, the lessor binding But the tenant contended that the landl himselí not to give notice to quit, which was estopped from maintaining ejectment, was once thrown out by Lord Mansfield, as could be done on six months' notice under has been long exploded,”-he did not, it is the ordinary tenancy from year to year, by submitted, have in mind, or in any way his covenant "that W. Warner shall not refer to, counsel's citation of Right ex dem. raise the rent nor turn out J. Browne so Green v. Proctor, although Lord Mansfield long as the rent is duly paid quarterly, and sat in the trial of that case. 1 hat he rehe does not expose to sale or sell any arti- ferred to Right ex dem. Green v. Proctor cle that may be injurious to W. Warner in seems to be extremely doubtful, for three his business." It was held that he was not reasons: (1) The conclusion in that case, so estopped, for the reason that the covenant as is pointed out by the court in CALKINS V. was repugnant to a tenancy from year to PIERCE, was approved unanimously by the year, i. e., the leasehold estate could not whole court. (2) It would seem that possibly be one from year to year and at the neither the court nor Lord Mansfield nor same time be terminable only at the will of anyone else connected with the case of Right the tenant. The reasoning was that, in ex dem. Green v. Proctor said anything order to give the covenant effect, the theory about “a tenancy from year to year, the of a tenancy from year to year must be lessor binding himself not to give notice to abandoned, and that of a tenancy for life quit.” The lease in that case was embodied adopted, but the latter theory could not in a partnership agreement, the owner, one be adopted for the reason that the lease was of the partners, dedicating the house to the not under seal. An important principle un- use of the firm as a part of its capital, by derlying the case is that a leasehold life es. stipulating that the other, who was an acttate cannot be in effect created as distinct ive partner, should occupy and care for the from a freehold life estate. Counsel cited house and partnership property and receive Right ex dem. Green v. Proctor, 4 Burr, certain amount towards expenses,

It 2208, to the point "that a lessor shall not would be difficult to see how any court could recover in ejectment against his covenant,” | avoid holding that the covenant amounted and Doe ex dem. Rigge v. Bell, 5 T. R. 471, to a lease, and that the lessor could not eject 2 Revised Rep. 642, 15 Eng. Rul. Cas. 596, the lessee during the time the partnership “where, though the lease by parol for seven continued. The report of the case in 4 Burr. years was avoided by the statute of frauds, 2208, is as follows: “This was a case reyet the lessor was holden to be bound by his served for the opinion of the court. In agreement, as to the time of giving notice to ejectment. Edward Green was seised of a quit.” To which citations Lord Ellenbor- house in St. Margarets' Westminster, a ough, Ch. J., answered: "It was not re- brewhouse, and the stock belonging to it. pugnant to the nature of the estate there, Proctor agreed to purchase one fifth of it. that the agreement, though void as to the Green covenanted to assign it accordingly. duration of the lease, should regulate the Articles of partnership were entered into, in time of giving notice to quit; but here it is which were several covenants. Amongst entirely repugnant to the nature of a tenan-1 others, Green covenanted that the said


the conditions. The case was argued in the can only be created by deed, as a feoffment King's bench, and Lord Ellenborough or a conveyance to uses. The notion of a stated: “That either his estate might inure tenancy from year to year, the lessor bindfor life at his option, and then, according ing himself not to give notice to quit, to Lord Coke, such an estate would, in which was once thrown out by Lord Manslegal contemplation be an estate for life, field, has been long exploded.” which could not be created by parol; or, The only point that case decided was if not for life, being for no assignable that an estate for life can only be created period, it must operate as a tenancy from by deed or will, and that the writing did year to year; in which case it would be not create a life estate, but did create an inconsistent with and repugnant to the na- interest in the land, viz., a tenancy from ture of such an estate, that it should not year to year. be determinable at the pleasure of either Right ex dem. Green v. Proctor, 4 Burr. party giving the regular notice.”

2208, was the case in which it was stated Lawrence, J., said: "If this interest be that the notion was advanced by Lord not determinable so long as the tenant com- Mansfield of a tenancy from year to year; plies with the terms of the agreement, it the lessor binding himself not to give notice would operate as an estate for life, which to quit. The case was tried before Lord trade shall be carried on between Green, , pears most plainly to be intended that he Ekins, and Proctor, etc., and £300 allotted was to reside in it. Mr. Justice Aston and for the yearly rent of the house shall be Mr. Justice Willes were of the same opinion. paid by Green. He covenants, also, that Per Cur unanimously. Judgment of nonProctor shall reside and dwell in the house suit." (3) It is submitted that the referfree of all rent, except taxes; and shall be ence of Lawrence, J., was to the "notion allowed certain perquisites and household

thrown out by Lord Mansfield" in expenses, and receive £6, 6s. weekly for his Ferguson v. Cornish, 2 Burr. 1032, 3 T. R. trouble, etc. And he covenanted that if he 463, note, expressed more accurately and should die, his executor should renew the followed in Goodright ex dem. Hall v. Richlease to Proctor. It was likewise covenanted ardson, 3 T. R. 462. The lease in the Ferthat neither party should dispose of his guson Case was for “seven, fourteen, or share without acquainting the other. Then twenty-one years, as the lessee (Cornish) there is a proviso that Proctor and his fam- should think proper, at £60 per annum ily may use the water of Green's canal. rent.” Lord Mansfield seems to have held, Proctor alone resided in the house. At the although the case did not turn upon the trial a verdict was found for the plaintiff, point, that either the lessor or the lessee and ls. damages, subject to the opinion of could terminate the lease, by proper notice, this court upon this question- Whether, up at the end of seven or fourteen years. This on this state of the case, the plaintiff has a statement of the holding is stronger than right to recover. This question first came Lord Mansfield expressed it, but it is a fair before the court on Friday last, the 29th of statement of the doctrine evolved from his April, and was then ordered to stand over statement, by Lord Kenyon, in Goodright to this day. Mr. Ashurst, on behalf of the ex dem. Hail v. Richardson, supra, who plaintifi, argued that Green had not exclud- elaborated and approved the doctrine, aled himself from a joint occupation. And if though it seems to have been unnecessary to the words do not import it, the court will the decision in this case also. This doctrine, not enforce such a construction as seems which has been attributed to Lord Manstield, contrary to the intention. Green had “has been long exploded,” as having been either the sole legal right, or was joint ten- extrajudicial, in both the cases cited supra ant with Proctor. Mr. Walker, contra, was (Dann v. Spurrier, 3 Bos. & P. 399, 7 Ves. stopped by Lord Mansfield, it being a clear Jr. 231, 2 Eng. Rul. Cas. 756; Doe ex dem. case. Lord Mansfield: At the trial I had | Webb v. Dixon, 9 East, 15; Bacon, Abr. no doubt upon the construction of the ar: Leases (L) 628). In the Spurrier Case the ticles, and none of us have any doubt now. doctrine is referred to as having been The plaintiff cannot recover against his own “thrown out” by Lord Mansfield. To paracovenant. Green was to be a gentleman in phrase the words of Lawrence, J., in Doe ex this affair; Ekins, to furnish skill and mon- dem. Warner v. Browne: We do not base ey; Proctor, to contribute labor and attend our decision upon the notion once thrown ance. The house was to be appropriated to out by Lord Mansfield, but long ago explodthe use of the trade. Proctor was to have ed, that a covenant by the lessor not to give the use and occupation of it, and be bound notice to quit is in every case of tenancy to reside there, and to have coals, candles, from year to year of no effect, but in the case etc., and other perquisites, and the use of before us the covenant is repugnant to the a pond which belonged to Mr. Green; and very nature of the estate, and for that reaif Green should die, his executor was bound son alone the lessor is not estopped to reto renew the lease to Proctor. And Proctor cover against it. It will be seen that the did live in the house. Green has no right "notion once thrown out by Lord Mansfield" to recover under all these circumstances. went much farther toward permitting the Mr. Justice Yates: Even as a license to lessor to recover against his covenant than inhabit, it amounts to a lease, and it ap- 1 any of the judges in Doe ex dem. Warner

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