The judgment must be affirmed.

1 Reported below at p. 728. - Ed.

II. Estates for years or "terms."

1. The Essential Feature of a Term - Certainty as to Commencement, Duration 1 and Termination.

Murray V. Cherrington

99 Massachusetts, 229. - 1868.

Action to recover possession of a dwelling house. Defendant contends that he holds the premises of right by virtue of a letter addressed to him by plaintiff, of which the material part is as follows: "I hereby let you the whole of my house on Mercer street in South Boston, when said house is suitable to be occupied by you, for a rent of four hundred and eighty dollars per annum, * * * but it is to be understood that, in case after two years subsequent to your moving into said house, I should wish to live in the house myself, I can do so, and that then you may still retain, if you wish to do so [certain rooms] for such a time as may be agreeable to us both." Defendant entered under the letter in Sept., 1866, and continued in possession to the date of the writ, April, 1867. There were also in evidence certain receipts for rent. The court refused to rule that the facts constituted a valid lease for the term of two years and defendant (Cherrington) excepted.

Foster, J. - * * * We are also of opinion that the ruling of the presiding judge was correct, that the terms of this letter did not create an estate for years, namely, a lease for two years, between the parties. The duration of a lease for years must be certain; this includes both its commencement and termination. It may be conceded that a lease for years may begin "when a house is suitable to be occupied," according to the maxim, Id certum est quod certain reddi potest. But the fatal objection remains that no period of termination is fixed by this letter. A leasehold interest for an uncertain and indefinite term is an estate at will only. Shaw, C. J., in Cheever v. Pearson, 16 Pick. 271; Bishop of Bath's Case, 6 Co. 35; Bac. Ab. Lease, L. 3. It is indisputable that an entry by the lessee under this instrument would not bind him to remain for any definite period. He could terminate his tenancy in the modes provided by statute; as to him there is no term of certain duration. Consequently, there can be none as to the landlord.

The proviso that after two years from the commencement of the occupancy the landlord may live in the house if he wishes to do so, and that then the tenant may still retain, if he wishes, certain rooms cannot change the construction. This clause has no tendency to show that the tenant was bound to remain during the two years.

1 For a limitation on the length of a term in certain cases, see n., p. 721, supra. - Ed.

Exceptions overruled.1

a. It is a sale of the land for such fixed period.

Fowler V. Bott

6 Massachusetts, 63. - 1809.

Sewall, J. - (After stating the plaintiff's demand, the several issues, and the verdict.) By a motion in arrest of judgment, this question, arising upon the defendant's third plea, is to be decided by the court, viz., whether, after a destruction by fire of the buildings demised, the lessors, without rebuilding, can recover their rent.

The supposed hardship of the case has been urged upon the attention of the court, as an argument for the defendants. The answer to this argument is, that a lease for years is a sale of the demised premises for the term; and, unless in the case of an express stipulation for the purpose, the lessor does not insure the premises against inevitable accidents, or any other deterioration. The rent is in effect the price, or purchase money, to be paid for the ownership of the premises during the term; and their destruction, or any depreciation of their value, happening without the fault of the lessor, is no abatement of his price, but entirely the loss of the purchaser.

Independently, however, of the general reasoning, which has been gone into upon this question, the law applicable to the case at bar has been long settled. In the case of Belfour v. Weston, cited for the plaintiffs, the same question was made which arises in this case; but the Court of King's Bench refused to hear an argument upon it, being of opinion that the point had clearly been determined by the authorities, and on that occasion Justice Buller refers to the opinion of Lord Mansfield in the case of Pindar v. Ainsley and Rutter, where the question occurred in an action of ejectment brought by the tenant, in a lease for years, against the landlord, for the possession of some houses, which, having been burnt down, had been rebuilt by the landlord during the term; but after acts by the tenant, from which abandonment of the lease was to be presumed. Lord

1 The end as-well as the commencement of the term may depend on some event other than the mere lapse of time, in accordance with the maxim cited above. See Kabley v. Worcester Gaslight Co., p. 721, supra. But an estate depending on the duration of human life is of course a life estate. - Ed.

Mansfield stated, as an established principle of law, that the consequence of the house being burnt down is, that the landlord is not obliged to rebuild, but the tenant is obliged to pay the rent during the whole of the term.

Nor is it correct to say that, in cases of this nature, the courts of equity in England afford relief. The cases cited in the argument for the defendant, as in point to that purpose, are noticed by Justice Buller in the case of Doe v. Sandham; and he speaks of them as decisions on particular circumstances, and not upon any general principle or rule of equity.

Upon the whole, this established rule of law determines the construction and operation of the contract relied on by the plaintiffs in the case at bar. When words of the same import are used, as were employed in the contracts upon which the decisions cited and referred to were made, the intentions of the parties must be understood in conformity to those decisions, even admitting the supposed hardship of the case, or severity of the demand. But even this objection seems inapplicable, when we consider the lease as a bargain and sale for the term at an agreed price. When there is no covenant on the part of the lessor to insure against fire, or any engagement to repair the premises in that event, or any other casualty by which they may be impaired or destroyed, the accident becomes the misfortune of the lessee, and he is not excused from his rent.