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 .
A tenancy at will may be created by a lease which expressly undertakes to create a tenancy at the will of both parties,46 and, as above indicated, such may be the effect of a lease at the will of the lessor or of the lessee. But apart from such cases, in which there is a particular reference to the "will" of one or both parties, the tenancy may exist merely as a result of the taking of possession of land by permission, "permissive possession," as it may be called, without any understanding as to the duration of the possession.47 In such a case usually assumed by the standard writers. See, e. g., Co. Litt 55a, 2 Blackst. Comm. 145, 1 Cruise's Dig. tit. 9, c. 1 Sec. 2, Williams, Real Prop. (18th Ed.) 434.
41. Evans v. Watkins, 76 N. A. 433, 41 L. R. A. (N. S.) 404, (83 Atl. 915.
42. Runnington, Ejectment, 9, Buntin v. Doe, 1 Blackf. (Ind.) 26; Covert v. Morrison, 49 Mich. 133, 13 N. W. 390; Blunden v. Baugh, Cro. Car. 302.
43. Goodtitle v. Herbert, 4 Term R. 680; Right v. Beard, 13 East, 210; Bush v. Fuller, 173 Ala. 511, 55 So. 1000; Frisbie v. Price, 27 Cal. 253; Zilch v. Young, 184 111. 333, 56 N. E. 318; Allen v. Mansfield, 82 Mo. 688; Jackson v. Aldrich, 13 Johns, (N. Y.) 106;
Jones v. Temple, 87 Va. 210, 24 Am. St. Rep. 649, 12 S. E. 404.
44. Wheeler v. Wood, 25 Me. 287.
45. Jones v. Jones, 2 Rich. Law (S. C.) 542.
46. So it may be created by such words as to hold "as long as both parties please" (Richardson v. Langridge, 4 Taunt. 128), or "for so long as the parties shall mutually agree," with a provision that "either party may put an end to" the relation. Say v. Stoddard, 27 Ohio St. 478.
47. St. Louis, I. M. & S. R. Co. v. Hall, 71 Ark. 302, 74 S. W. 293; Goodwin v. Perkins, 134 Cal. 564, 66 Pac. 793; Radican v. Hughes, 86 Conn. 536, 86 Atl.
[ Sec. 61 the tenant is under no obligation to remain in possession nor is the owner under any obligation to let him remain and consequently the tenancy may be discontinued at the will of either. Frequently, however, a permissive possession which would otherwise constitute a tenancy at will is, as will be seen later,48 by reason of the reservation or payment of a periodic rent, changed into a tenancy from year to year or other periodic tenancy.
The permissive possession above referred to which constitutes a tenancy at will may arise under a variety of circumstances, frequently even though the parties intended to create a different relation. For instance, if one goes into possession under a void conveyance, the grantee or lessee is a tenant at will. This was the ease at common law when a deed of feoffment was not accompanied by livery of seisin but the feoffee entered, since he entered by the consent of the feoffor.49 And, likewise, if one enters under a conveyance in fee which is invalid under the statute of frauds, he becomes a tenant at will.50 The same principle has been quite frequently applied in the case of one entering under an invalid conveyance by way of lease,51 as when it was invalid under the statutes of mortmain,52 because un220; Kankakee & S. R. Co. v. Horan, 131 111. 288, 23 N. E. 621; Goodenow v. Allen, 68 Me. 308; Howard v. Merriam, 5 Cush. (Mass.) 563; Appleton v. Buskirk, 67 Mich. 407, 34 N. W. 708; San-ford v. Johnson, 24 Minn. 172; Leavitt v. Leavitt, 47 N. H. 329; Larned v. Hudson, 60 N. Y. 102; Den d. Humphries v. Humphries, 25 N. C. (3 Ired. Law) 362; Maher v. James Hanley Brew. Co., 23 R. I. 323, 50 Atl. 330; Robb v. San Antonio St. R. Co., 82 Tex. 392, 18 S. W. 707; Rich v. Bolton, 46 Vt. 84, 14 Am. Rep. 615; Webb v. Seekins, 62 Wis. 26, 21 N. W. 814; Utah Optical Co. v. Keith, 18 Utah. 464, 56 Pac. 155.
48. Post Sec. 64.
49. Litt. Sec. 70; Co. Litt. 57 b.
50. Jackson v. Rogers, 2 Caines Cas. (N. Y.) 314; Bzelle v. Parker, 41 Miss. 520. And so where one enters under an oral lease for life. Hooton v. Holt, 139 Mass. 54, 29 N. E. 221.
51. See Hayes v. City of Atlanta, 1 Ga. App. 25, 57 S. E. 1087. gent, 13 Ch. Div. 330.
52. Magdalen Hospital v. Knotts, 4 App. Cas. 324; Bunting v. Sarsealed,53 because not acknowledged or recorded,54 because an improper execution of a power,55 or because the lease was ultra vires,56 and such is primarily the status of one who enters under a lease which is invalid by reason of the Statute of Frauds.57 Other cases of such permissive possession rendering one a tenant at will may occur in the case of one who enters into possession by permission of the owner pending negotiations for a lease,58 or a sale59 to him, and of one permitted to occupy pending the performance of an executory contract for a lease to him.60
- (b) Lease not naming duration. There are occasional decisions to the effect that a lease which fails to name the period for which the tenancy is to endure creates a tenancy at will.61 Such a lease, if insufficient
53. Ecclesiastical Com'rs v. Merral, L. R. 4 Exch. 162; Arbeny v. Exley, Watkins & Co., 52 W. Va. 476, 61 L. R. A. 957, 44 S. E. 149.
In Maine it appears to have been held, somewhat singularly, that, although a conveyance purporting to pass a life estate, not being under seal, was not effective to pass such an estate, nevertheless the grantee could retain possession until his death. Calkins v. Pierce, 112 Me. 474, 92 Atl 529.
54. McLeran v. Benton, 73 Cal. 329, 2 Am. St. Rep. 814, 14 Pac 879; Baltimore & O. R. Co. v. West, 57 Ohio St. 161, 49 N. E. S44.
55. Doe d. Martin v. Watts, 7 Term R. 83.
56. City of Bay St. Louis v. Hancock County, 80 Miss. 364, 32 So. 54 (city occupying under lease which it had no power to accept). In Rogers v. Hill, 3
Ind. T. 562, 64 S. W. 536, one taking possession under a void Indian lease was held to be a tenant at will.
57. See post Sec. 64(b).
58. Coggan v. Warwicker, 3 Car. 2 K. 40; Lennox v. West-ney, 17 Ont. 472; Fall v. Moore, 45 Minn. 515, 48 N. W. 404; Carteri v. Roberts, 140 Cal. 164, 73 Pac. 818.