This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
59. Doe d. Thomas v. Chamberlain, 5 Mees. & W. 14; Swart v. Western Union Tel. Co., 142 Mich. 21, 12 Det. Leg. N. 609, 105 N. W. 74.
60. Braywaite v. Hitchcock, 10 Mees. & W. 494; Weed v. Lindsay, 88 Ga. 686, 20 L. R. A. 33, 15 S. E. 836; Tuttle v. Lang-ley, 68 N. H. 464, 39 Atl. 488 (semble).
61. Murray v. Cherrington, 99 Mass. 229; Gardner v. Hazleton, 121 Mass. 494; Amick v. Bru-baker, 101 Mo. 473, 14 S. W. 627. So, it has been held that a lease to create a freehold estate because not in writing or for any other cause, will no doubt have such an effect. It will constitute merely a case of permissive possession such as we have just been discussing. But these decisions, so far as they may involve the view that a lease by one having an estate in fee, though sufficient in point of execution to create a freehold estate, will create a tenancy at will only, merely because no estate is expressly limited, are, it is conceived, erroneous. At common law such a lease, if accompanied by livery of seisin, created an estate for life,62 and the abolition of the latter requirement cannot cause it to have a lesser effect. The fact that the old authorities turn upon the question whether livery had been made is occasionally lost sight of. In jurisdictions where the common-law requirement of words of inheritance for the creation of a fee simple is no longer in force, such a conveyance might be regarded as passing an estate in fee simple, except as the use of words of demise and lease only might exclude any inference of an intention to transfer the lessor's entire interest, that is, a fee simple estate. This view, that such a lease creates a freehold estate rather than a mere tenancy at will, is in accord with the well recognized rule that a conveyance which is of doubtful meaning will be construed in favor of the grantee rather than the grantor. There are occasional decisions in this country which seem to recognize in somewhat obscure terms that such a lease may be effective to create a freehold estate.63 of land, to be held until it is sold, creates a tenancy at will only. Lea v. Hernandez, 10 Tex. 137. It might have been regarded as creating a life interest subject to termination by sale, if the lease were executed in the manner necessary for the conveyance of a life interest.
The Massachusetts cases above cited do not seem to accord with earlier cases in the same state. See Hurd v. Cushing, 24 Mass. (7 Pick.) 169; Cook v. Bisbee, 18 Pick. (Mass.) 527.
62. Ante Sec. 32.
63. See Wright v. Hardy, 76 Miss. 524, 24 So. 697; Reed v. Lewis, 74 Ind. 433, 39 Am. Rep 88; Sweetser v. McKenney, 65
- (c) Lease at will of one party. It is said by that "when the lease is made to have and to hold at the will of the lessee, this must be also at the will of the lessor." In a number of cases in this country the courts have accepted Coke's statement literally and without question, holding that if a lease, without naming any term of enjoyment, gives the tenant a right to leave at any time and thus terminate all liabilities on his part, the lessor may compel him to leave at any time, that is, that he is a tenant at will.65 On the other hand, at common law, if one having a fee simple estate made a conveyance or demise to another accompanied by livery of seisin, without words of inheritance or other limitation, a life estate was created in favor of the latter,66 and the fact that the lessee in such case was given the option to terminate his tenancy at any time should not, it seems, reduce his freehold interest to a mere tenancy at will, but rather he should be regarded as having an estate for life subject to a right in him to terminate it. That a lease in terms creating an estate for years contains such an option in the lessee does not render the latter a tenant at will merely,67 and no more should its presence in what would otherwise be a conveyance in fee simple or for life have such an effect. Not only is the opposite view apparently opposed to those cases recognizing the validity of a term of years subject to such an option in the lessee, but it also seems opposed to the decisions
Me. 225; Holley v. Young, 66 Me. 520; Warner v. Tanner, 38 Ohio St. 118; Thurber v. Dwyer, 10 R. I. 355.
64. Co. Litt. 55a.
65. Reese v. Zinn, 103 Fed. 97; Doe d. Pidgeon v. Richards, 4 Ind. 374; Knight v. Indiana Coal & Iron Co., 47 Ind. 105, 17 Am. Rep. 692; Sheever v. Pearson, 16 Pick. (Mass.) 266; Corby v. McSpad-den, 63 Mo. App. 648; Western
Transp. Co. v. Lansing, 49 N. Y. 499; Den d. Mhoon v. Drizzle, 14 N. C. (3 Dev. Law) 414; Beauchamp v. Runnells, 35 Tex. Civ. App. 212, 79 S. W. 1105; Cowan v. Radford Iron Co., 83 Va. 547, 3 S. E. 120; Eclipse Oil Co. v. South Penn Oil Co.. 47 W. Va. 84, 34 S. E. 923.
66. Ante Sec. 32.
67. Ante Sec. 59(c) note 13a.
[ Sec. 61 that there may be a conveyance to a man and his heirs for so long as the grantee may choose to occupy the premises for a certain purpose, this in effect creating an estate terminable at the grantees' will, but not at the grantor's.68 It has in England, apparently, been decided that a conveyance to one with a right in him to terminate the holding at any time creates in him a freehold estate.69 There the estate thus created in the absence of the insertion of the word "heirs" is a life estate merely, terminable at the will of the lessee, while under the rule prevailing in most of the states in this country, that the word "heirs" is not necessary for the creation of an estate in fee, the estate created would rather be one in fee terminable at the lessee's option, unless the terms of the conveyance show a different intention.70 There are several cases in this country which tend to support the view that such a conveyance creates an estate for life or in fee.71 Coke's dictum that such a lease at the will of the lessee creates a tenancy at will is, it is conceived, to be regarded as applying only in the absence of livery of seisin, which was in his day necessary for the creation of an estate of freehold.72 That, if accompanied by livery of seisin, such a lease created an estate for life is clearly asserted by high authority prior to his time,73 and there is nothing in the decisions referred to by him to lead to a different conclusion. So at the present day, it is only when the instrument lacks some formality of execution, such as a seal, which may be in the particular jurisdiction necessary for the creation of a freehold estate, that merely an estate at will is to be regarded as created by a lease so expressed.
68. Post Sec. 93.
69. Beeson v. Burton. 12 C. B. 647; In re King's Leasehold Estates, L. R. 16 Eq. 521; Zimbler Y. Abrahams  1 K. B. 577.
70. See Reed v. Lewis. 74 Ind. 433.
71. Effinger v. Lewis. 32 Pa. 367; Gilmore v. Hamilton. 83 Ind. 196; Ely v. Randall, 68 Minn.
177, 70 N. W. 980; Cole v. Lake Co., 54 N. H. 242, 277.
72. That his statement is to be so understood see Effinger v. Lewis, 32 Pa. 367; Sergeant Mannings note, 7 Man. & G. 47: Leake, Dig. Prop. 207.
73. Bro. Abr., Estates, pl. 72: Keilw. 162, pl. 4, quoted 1 Tiffany, Landlord & Ten. Sec. 13 note 362.
Another statement by Coke, that "when the lease is made, to have and to hold at the will of the lessor, the law implieth it to be at the will of the lessee also," has been referred to with approval in several eases,74 and it seems that such a lease would ordinarily be construed as creating a tenancy at will.75 If, however, there is an express limitation of a greater estate, the mere fact that the lessor has an option to terminate the tenancy at any time cannot well reduce the estate to one at will. For instance, if the lease in terms creates an estate for years, such an estate will be created, subject to the option,76 and so if the lease in terms creates an estate for life, and is properly executed for the conveyance of a freehold, the fact that the lessor is given an option to terminate the lessee's estate does not, it would seem, make the holding one merely at will.77
- (d) Tacit acquiescence in another's possession.
There are a number of cases which suggest the view that the mere failure of the owner of land to object to the unauthorized holding of possession by another constitutes the latter a tenant at will of the owner, as showing what we have before referred to as a "permissive possession,"78 but it is difficult to see how this
74. Doe d. Pidgeon v. Richards. 4 Ind. 374; Cheever v. Pearson. 33 Mass. (16 Pick.) 266; Den d. Humphries v. Humphries. 25 N. C. (3 Ired. Law) 362; Corby v. McSpadden, 63 Mo. App. 648.
75. As in Den d. Humphries v. Humphries, 25 N. C. (3 Ired. Law) 362; Post v. Post. 14 Barb. (N. Y.) 253.
76. See ante Sec. 56(c).
"All that the passage cited from like any other tenancy, can, it is submitted, be created only by a legal act constituting a lease or demise, and not by a mere forbearance to act. There are dicta at least to this effect.81
Coke means is that if there is a demise with no term fixed between the parties except the will of the lessor, then it is implied by law to be also at the will of the tenant." Per Cotton, L. J., in In re Threlfall, 16 Ch. Div. 274.
77. See authorities cited in a learned note by Sergeant Manning in 7 Man. & G. at p. 45.
78. See Doe d. Mann v. Keith, 4 U. C. Q. B. (0. C.) 86; Muncan be. Such a view appears to be opposed to the almost numberless cases in which a claim to recover land has been held to be barred by the statute of limitations. If the plaintiff's failure, during the period named in the statute or a less period, to object to the defendant's wrongful possession, renders the latter the plaintiff's tenant, the statute of limitations becomes inapplicable, since the existence of the relation of tenancy deprives the possession of the element of hostility necessary for the application of the statute.79 The effect would be that the statute could apply only when the rightful owner had objected to the other's wrongful possession, and he could always exclude the operation of the statute to his disadvantage by failing so to object. Another consideration in this respect is that the cases asserting this doctrine of the creation of a tenancy by silent acquiescence make no suggestions as to the period which must elapse after the commencement of the wrongful holding before the tenancy can be regarded as arising, and from the nature of the case no definite period can be named. It has been said in this connection by a distinguished judge that "mere silence on the part of the plaintiff did not constitute or make evidence of a tenancy at will. If it did, when did the silence have that effect. At the end of a day-a week-a month-a year-or when. When there is no duty to do anything, mere lapse of time and nothing done, is no evidence of anything."80 In view of these considerations and of the well recognized distinction between a tenant and a trespasser, and in spite of the cases before referred to apparently to the contrary, a tenancy at will, son v. Plummer, 59 Iowa 120, 12 N. W. 806; Fischer v. Johnson, 106 Iowa 181, 76 N. W. 658; Shean v. Withers, 12 B. Mon. (Ky.) 441; Hoffman v. Clark, 63 Mich. 175, 29 N. W. 695; Ker-rains v. People, 60 N. Y. 221, 19 Am. Rep. 158; Bedford v. McElherron, 2 Serg. & R. (Pa.) 49. 79. Post Sec. 513(a). 80. Bramwell, B., in Ley v. Peter, 3 Hurl. & N. 101, Watson and Channell, B. B., were of the same opinion. Martin B., apparently was not.