b. Descent, dower, curtesy.

Overturf V. Dugan

29 Ohio State, 230. - 1876.

[Reported herein at p. 20].1

Houghton V. Hapgood

13 Pickering (Mass.), 154. - 1832.

[Reported herein at p. 24.]2

Durando V. Durando

23 New York, 331. - 1861. [Reported herein at p. 658.]

II. Freeholds not of inheritance, - life estates.

1. In General - Nature and Classification

a. Absolute and defeasible.

Beardsley, J., in

Roseboom V. Van Vechten

5 Denio (N. Y.), 414, 424. - 1848.

Under the will of Jacob Roseboom, his widow acquired an estate durante viduitate in this lot of land. That was an estate for her life, determinable on her ceasing to be such widow, and during its continuance was a freehold. 4 Kent, 26; 1 Inst. 42, a; 1 Cruise's Dig. 115, § 8; Watk. on Convey. 30 to 35. In the year 1800, the widow, Hester Roseboom, executed a deed in fee of this land to Guert Van Schoonhoven, which, although it did not give him a fee simple, as the grantor had not such an estate, was effective to transfer the life estate of the grantor to the grantee. In 1806, Van Schoonhoven made a deed in fee, for the same land, to Leonard Gansevoort, who thus acquired a freehold estate therein for the life of the widow Roseboom. Ganesvoort died in 1810, having made his will in 1800, by which all his estate, real and personal, was, in terms, devised to his wife for life, and she was made sole executrix of the will. This will being made before the devisor had any interest in the land now in question, it did not pass by the will, but vested in the widow as executrix. I R. L. 365, § 4; I K. & R. 178, § 4; Doe v. Robinson, 8 B. & C. 296. In 1814, the widow of said Ganesvoort united with two other persons in a deed of this land, in fee, to the present defendant, who thereby acquired a valid title to said land, for the life of the widow Roseboom. She did not die until 1826, having remained a widow since the decease of her husband, Jacob Rose-boom, and, as the defendant had not conveyed his interest in said land, he had a freehold estate therein when the fine was levied in 1824. The defendant was therefore competent to levy this fine, and the proclamation being completed in 1825, it became effective against the plaintiff, whose right to bring suit accrued in 1826. This action was not brought until 1843, more than five years after the right accrued. The fine was therefore, an insuperable bar to a recovery.

1 See also March v. Berrier, supra, p. 70. - En. 2 See also Hatfield v. Sneden, p. 641, infra. - Ed.

Warner V. Tanner

38 Ohio State, iiS. - 1882.

Action by Warner as administrator of L. Bartlett, deceased, for the value of a lease alleged to have been converted by Tanner to his own use.

In 1864 Tanner leased to Bartlett certain premises, Bartlett to build a cheese house thereon and to pay for the use of said premises thirty dollars per annum "while said premises shall be used as and for manufacturing cheese; and when said premises shall no longer be used for such purpose, the premises . . . shall again revert to said Tanner, said Bartlett having the privilege of removing all buildings and fixtures put upon said premises by him." Bartlett came into possession under the lease and so continued until his death in 1874, at which time rent was paid to February I, 1875.

In February, 1875, Tanner (having previously requested the administrator to remove the buildings and fixtures) went into possession of the premises against the protest of Warner, who thereupon brought this suit. Judgment on verdict for plaintiff was reversed by the District Court. The administrator brings error to this court.

OKEY, C. J.- In the Court of Common Pleas, the jury was charged, that the instrument executed by the parties was not a lease at will, nor for years, nor of perpetual duration; "that said lease is not real property;" that it "was a lease which continued and run for an indefinite period, and so long as the lessee, or his assigns or personal representatives, should use the property covered by said lease for the purpose of manufacturing cheese thereon;"that upon the death of Bartlett, the interest passed to the administrator and not his heir; and that the administrator could maintain a suit against the Tanners in the nature of an action of trover for the conversion of the fixtures and the lease. To state such a position is to refute it. The only instance of a similar action which I remember was met in Railroad Co. v. Robbins, 35 Ohio St. 531.

Leases may be at will, for years, for life, or of perpetual duration. Foltz v. Huntley, 7 Wend. 210; Taylor's Land. & T.. § 72. Indeed, they may be made for any period which will not exceed the interest of the lessor in the premises. And whatever the term, it may be subject to a condition which is a qualification annexed to the estate by the grantor, Sperry v. Pond, 5 Ohio 387, s. c, 24 Am. Dec. 296, or lessor, Foltz v. Huntley, supra, whereby the estate or term granted may, among other things, be defeated or terminated.

In this case the question as to the rights and interest which Bartlett acquired under the instrument, is one of construction. The fact that he was required to and did place upon the premises valuable structures, which he could only remove when the premises were no longer used for the manufacture of cheese thereon, satisfies us that this was not a lease at will nor a lease from year to year. On the other hand, the instrument contains no words indicating an intention to grant a fee in the premises; and yet the construction which the Court of Common Pleas placed upon it would render it, in effect, precisely the same as though the grant had been to Bartlett, his heirs and assigns. It would endure, according to that construction, until the premises were no longer used for the manufacture of cheese, or the lessee ceased to pay rent precisely as in the case of a grant in fee with such condition. Having regard to the whole instrument, and not overlooking the fact that the right to remove the fixtures is, in terms, limited to Bartlett, we are satisfied that a lease for life was granted to him, subject to be defeated when the premises were no longer used for the manufacture of cheese thereon, or by the non-payment of rent. Hurd v. Gushing, 7 Pick. 169, Sperry v. Pond, supra; Foltz v. Huntley, supra; Rowle's Case, Tudor's Lead. Cas. Real Prop. 2d ed. 27-100; 4 Wait's Act. & Def. 502. Indeed, it is well settled that if one grant an estate to a man and woman during coverture, or as long as the grantee or lessee shall dwell in such a house or use the premises for a specified purpose, as for instance, the manufacture of cheese thereon, or for any like uncertain time, the grantee or lessee has in judgment of law a freehold. I Williams on Ex. (6 Am. ed.) 749; Taylor's L. & T., § 52; Beeson, App., Burton res. 12 C. B. (74 E. C. L.) 647; and see cases cited, supra. The cases relied on by the plaintiff in error White v. Fuller, 38 Vt. 194; Lewis v. Fffinger, 30 Pa. St. 281; Cook v. Bisbee, 18 Pick. 527, are in no respect inconsistent with the view here stated; and the statutes and decisions relating to permanent leasehold estates in this state, which are also cited and relied upon by the plaintiff in error, shed little light on the case.