Putnam's Handy Law Book for the Layman Part 10

The most usual agreements or covenants in a lease are on the part of the lessor for quiet enjoyment, which secures the tenant against any hindrance or disturbance of his possession and enjoyment of the premises from persons deriving their t.i.tle from the landlord, or from any one else who claims to be the owner. Also against all enc.u.mbrances, in other words, that no one has any eas.e.m.e.nts or other rights in the premises. The landlord also usually agrees to repair, and often to renew the lease, and the lessee to pay rent, to insure and not to a.s.sign or underlet, without the landlord's consent. The parties may of course agree to do any other lawful thing, for example, sometimes the tenant agrees to make repairs, to reside in the premises, not to engage in some kinds of business, to cultivate the land, if the lease be of a farm, in a specified way. Again though an oral lease for a term of years at a stated annual rent may not fulfill the requirement of the Statute of Frauds, the parties may conform to it and thus create a tenancy in fact from which the law will imply a leasing from year to year. If therefore the tenant with the acquiescence of the landlord continues in possession for several months after the expiration of the original term, a tenancy for another year will be created with a corresponding liability on the part of the tenant for a full year's rent. And the measure and extent of the tenant's liability would be the same, whether his continued occupancy related to the original lease, or to a subsequent one just like it, made as the first was soon to expire.

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 t.i.tle 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 munic.i.p.al 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 trustees.h.i.+p, or by statute. Though a member of a partners.h.i.+p, as we have seen, is an agent, he cannot make valid lease of partners.h.i.+p 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 ent.i.tled 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 a.s.sign 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 a.s.sign the remainder of his term. A lease may also be a.s.signed if the lessee become insolvent, also by a new partners.h.i.+p 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 a.s.signment. 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 a.s.sign or sublet unless forbidden, so may the lessor part with his interest in the leased premises. When an a.s.signment of it is made, the a.s.signee may sue in his own name for rent accruing after the a.s.signment.

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 pa.s.sed 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 partners.h.i.+p 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 pa.s.sages 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 s.p.a.ce. If the ice or snow has acc.u.mulated 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 wis.h.i.+ng 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 a.s.sumpsit.

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 enc.u.mbrances. 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 trespa.s.s. 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, trespa.s.s would be the proper form of action. In many states an action in tort instead of trespa.s.s is the proper remedy. If one should come upon my land and take away wood, gra.s.s, stone, or in any way injure it, trespa.s.s 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 t.i.tle or owners.h.i.+p of the land lies at the foundation; and the t.i.tle 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 ent.i.tled, 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 ent.i.tled 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 subst.i.tution 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.

The contract to be valid must be for the benefit of one having an insurable interest, otherwise the contract is a wager, which the law condemns. This is sufficient if the person taking the insurance has such an interest arising from his relation to the insured as creditor and surety, or from the ties of blood or marriage that will justify a reasonable expectation of advantage or benefit from the continuation of his life. It is not needful that this expectation or benefit should possess a pecuniary valuation. The mutual legal rights and liabilities of father and minor child are sufficient to create an insurable interest on the part of each in the life of the other; also the relations.h.i.+p of brother and sister, and that of husband and wife.

Likewise a man and a woman who are engaged to be married; and a creditor has an insurable interest in the life of his debtor. And this interest covers not only the amount of the indebtedness, but also future advances, and the cost of taking out and keeping up the insurance. A partner who has advanced the capital of the business has an insurable interest in the life of his partner. More generally any person who invests money relying on the efforts of another to produce a return has an insurable interest in such person's life. A surety therefore has an insurable interest in the life of his princ.i.p.al; an executor in the life of a person who has granted an annuity to the testator; a common carrier even may insure against loss from injuries to pa.s.sengers. But the relations.h.i.+p between uncle or aunt, nephew and niece and that of cousin is not sufficient to support a policy taken by one in the life of the other.

A policy may be a.s.signed to one who has no insurable interest if made in good faith, and not as a cloak for the procuring of insurance by one having no insurable interest. This rule does not prevail everywhere, but the courts which do not accept this rule usually protect the a.s.signee who has paid the premiums to the amount of his payments, while the estate of the insured takes the balance that may come from the insurer, whenever the a.s.signment of the policy is not invalid. An a.s.signment to one who has an insurable interest as relative, creditor and the like, is always valid.

A general agent, says Justice McClain, "may bind the company by an agreement as to rate of premiums, or other terms of the contract, even as against the express provisions of a policy subsequently issued, there being no negligence on the part of the insured in failing to advise himself as to the terms of the policy; but if the want of authority of the agent to vary the terms of the application is brought home to the applicant, oral communications of the insured to the agent are not to be considered in determining the validity of the insurance.

If the agent has exceeded his authority as to the terms of the proposed contract, the company cannot reject that part which the agent was without authority to make and enforce the rest, but must accept or reject in toto."

Until a proposition for insurance has been accepted by the company there is no contract. Delay in accepting an application which is subject to approval does not effect an acceptance. There may be a binding contract of insurance as soon as the company has accepted the application, or on the delivery and acceptance of it by the company's agent, when he has authority to do so. In order to complete the contract before issuing the policy there must be an agreement to this effect, and before the death of the applicant. The receipt by an agent for the first premium, or of a note therefor, subject to the approval of the application by the company, does not effect a contract between insurer and insured.

Some states have enacted statutes prescribing requirements for life insurance policies, or standard forms. Delivery to a third person for the insured may be sufficient. The contract becomes complete when the policy is put in the mail, postage prepaid, for delivery in due course to the insured. Delivery to the insured for examination of course does not effect any engagement on the part of the insurer, nor does a delivery on condition.

It is often stated that the delivery shall not be effectual to create a contract unless the insured is alive and in good health when the policy is delivered and the first premium is paid. Indeed, how could it be valid if the insurer is dead? And if the contract is with a person other than the insured as beneficiary, it would be void on the ground of mistake. Likewise, under such a condition, a policy does not become effective, without a waiver, if the insured is in ill health at the time of its delivery or payment of the premium.

Unless waived by the company, there is usually a stipulation to the effect that the company shall not become bound until the first premium has been actually paid and accepted by the company or its authorized agent. But if the premium is actually paid by the agent of the company for the insured by virtue of an agreement between them, this will bind the company. The payment of the premium by a third person without the knowledge of the insured does not have the same effect.