§1212. The lease being made, the next question which arises is in regard to the time at which the term of the lease is to commence, and its extent and duration. A lease by deed was formerly held to be void, unless the time at which the term was to commence was distinctly and unambiguously stated.1 But this strict doctrine has given way to a more equitable rule of interpretation; and it is now established that if the intention of the parties be manifestly implied in the instrument itself, or if, the instrument being defective, the intention be manifested by acts done by the parties in pursuance thereof without-objection, the instrument will be interpreted so as to give effect to that intention. If, therefore, two days be mentioned in a lease, and it be uncertain from the terms on which of the two the term is to commence, actual entry of the tenant on one of the two days, without objection by the landlord, will determine the day. So also, if the day be doubtfully designated, the same rule applies; as where a lease for years was made to commence at the feast of our Lady Mary, it was held that the tenant might, by his entry, determine which feast was intended.2
§1213. Where the time at which the lease is to commence is designated by reference to something which is supposed to exist, but which does not in fact exist, - as if a lease be expressed to commence from the date, and there be no date, or an impossible date,1 or from the making of a former lease, and no such lease exist, or be void,2 - the lease will commence from the delivery thereof, that being the best evidence of the intention of the parties. Where a lease bears a specific date, and the time at which it shall commence is not otherwise expressed, the day of the date is to be taken as the time of its commencement.3
1 Foot v. Berkley, 1 Sid. 461; 2 Keb. 656; Anon., 1 Mod. 180. In the latter case the court were, however, divided in opinion.
2 Anon., 1 Leon. 227; Periam, J., doubted, however. But the actual entry was evidence of the intention, which is the true criterion.
§ 1214. If the tenancy be by parol, and there be no agreement as to the time at which it is to commence, the presumption is that it commences on the day of the tenant's entry.4 This presumption may, however, be rebutted by evidence. Thus, where a tenant entered in the middle of a quarter, and afterwards paid a proportion of the rent to the next regular quarter day, at Christmas, from which time he paid half-yearly, it was held that his tenancy commenced at Christmas.5 But if the tenant enter in the middle of a quarter, as on the 7th of May, and never pay rent, his tenancy commences on the day of his entry; and a six months' notice to quit, expiring May 7th of the following year, is a good notice.6
§ 1215. In the case of a lease properly dated, and to commence from the day of the date, it was formerly held that the day was to be excluded, and that the lease commenced on the day after; but where it was to commence from the date, it was held to commence upon the day of the date, including it.7 This trifling and subtle distinction has, however, been long exploded, and wherever there is any question as to the day it is determined solely by the intention of the parties, as discoverable from the instrument.8 The words, whatever they may be, are to be interpreted so as to meet that apparent intention, and are inclusive or exclusive, according to the reason of the thing and the nature of the case.1 The question is, therefore, a mere matter of construction, under the general rules of interpretation.2 Ordinarily the day of the demise is held to be inclusive, however; for when there is nothing else to guide the construction, that one is assumed which is most beneficial to the lessee.3
1 Co. Lit. 46, b; Bacon, Abr. Leases, E. rule 2.
2 Miller v. Man waring, Cro. Car. 397; W. Jones, 355; Bassett v. Lewis, 1 Lev. 77; Bacon, Abr. E. rule 2.
3 Keyes v. Dearborn, 12 N. H. 52; Bishop v. Wraith, 26 Eng. Law & Eq. 568; 2 C. L. 287.
4 Kemp v. Derrett, 3 Camp. 510.
5 Doe v. Johnson, 6 Esp. 10; Doe v. Stapleton, 3 C. & P. 275; Doe v. Selwyn, Adams, Eject. 129.
6 Doe v. Matthews, 11 C. B. 675; 20 Eng. Law & Eq. 295.
7 Hatter v. Ash, Lord Raym. 84; Bacon, Abr. Leases, E. rule 2.
8 Pugh v. Duke of Leeds, Cowp. 714.
§ 1216. Where the lease is made for an unlimited time, it has been held, from the time of Henry VIII., to create a tenancy from year to year, not determinable at the will of either party, nor at the end of the current year, unless a notice to quit be regularly served.4
§ 1217. A lease for 999 years for a gross sum is held, for all practical purposes, to be a conveyance in fee-simple.5
§ 1218. Where the lease is merely said to be for years, it is a lease for two years certain, and afterwards from year to year.6 But if the tenant, by the terms of the agreement, be subject to quit at three months' notice, he is a tenant only from quarter to quarter.7 And in the case of lodgings taken generally at a certain sum per annum, payable half-yearly, a tenancy of only a year will arise, so that the tenant can quit at the expiration of the first year without any notice to quit.1 A lease of certain premises "for one year certain," from April 1, 1860, at a rent payable quarterly " in each and every year during the tenancy," with certain deductions " out of each of the first four quarters' rent," is a lease from year to year.2
1 Lester v. Garland, 15 Ves. 248.
2 See ante, Construction.
3 Lysle v. Williams, 15 Serg. & Rawle, 135; Donaldson v. Smith, 1 Ashm. 197. See, also, King v. Justices of Cumberland, 4N. & M. 378. In Glassington v. Rawlins, 3 East, 407, the rule is declared to be that, where the computation of time is to be from an act done, the day when such act is done is to be included. So, also, Clayton's Case, 5 Co. l a; Bellasis v. Hester, 1 Ld. Raym. 280; The King v. Adderley, 2 Doug. 463; Castle v. Burditt, 3 T. R. 623; 4 Kent, Comm. 95, note b; Atkins v. Sleeper, 7 Allen, 487 (1863); Fox v. Nathan, 32 Conn. 348 (1865).
4 Legg v. Strudwick, 2 Salk. 414; Timmins v. Rowlinson, 3 Burr. 1609; AVarner v. Browne, 8 East, 165; Comyn, Land and Ten. 8.
5 Brainard v. Colchester, 81 Conn. 407 (1863).
6 Stomfil v. Hicks, 2 Salk. 413; Harris v. Evans, 1 Wils. 262; Birch v. Wright, 1 T. R. 380; Denn v. Cartright, 4 East, 32. See Doe d. Chadborn v. Green, 9 Ad. & El. 658. A lease to hold from the first day of April from year to year so long as both lessor and lessee should agree is not necessarily a lease for more than one year. Fox v. Nathans, 32 Conn. 348 (1865).
7 Kemp v. Derrett, 3 Camp. 510; Panton v. Isham, 3 Lev. 359. But see Rex v. Herstmonceaux, 7 B. & C. 551.
§ 1219. In respect to the time when leases for years terminate, there has been some diversity of judgment; but the general understanding now is that terms for years last during the whole anniversary of the day from which they are granted.3 Thus, for example, a lease dated on the 25th day of March, 1809, for twenty-one years more, will not terminate until the end of the 25th of March, 1830.4
1 Wilson v. Abbott, 3 B. & C. 88; 4 D. & R. 693; Rigbt v. Darby, 1 T. R. 159.
2 Wharton v. Kelly, 14 Irish Com. Law, 293 (1861), following Thompson v. Maberly, 2 Camp. 573.
3 Ackland v. Lutley, 9 Ad. & El. 879. 4 Ibid.