8. But in several cases it was decided that the stipulation in question was a "covenant" the benefit of which would pass with the reversion under St. 32 Hen. 8, c. 34, but it was at the same time in effect decided that the trans feree could recover possession by reason thereof. Roberts v. McPherson, 62 N. J. L. 165, 40 Atl. 630; Id., 63 N. J. L. 352, 43 Atl. 1098; Douglaston Realty Co. v. Hess, 124 N. Y. App. Div. 508, 108 N. Y. Supp. 1036; Hadley v. Bernero, 97 Mo. App. 314, 71 S. W. 541; McClung v. McPherson. 47 Ore. 73, 82 Pac. 13, 81 Pac. 567.

8a. Post Sec. 76, note 69.

9. As in Manhattan Life Ins. Co. v. Gosford, 3 N. Y. Misc. 509, 23 N. Y. Supp. 7.

10. See Liddy v. Kennedy, L. R. 5 H. L. 134, per Lords Chelmsford and Westbury; Diepenbrock v. Luiz, 158 Cal. 716, Ann. Cas. 1912C 1084, 115 Pac. 743.

11. See Liddy v. Kennedy, L. R. 5 H. L. 134, per Lord Hather-ley.

12. Morton v. Weir, 70 N. Y. 247; Buhman v. Nickels & Brown Bros., 1 Cal. App. 266, 82 Pac. 85.

R. P. - 14

Real Property.

[ Sec. 59 as being intended to operate only when such desire is indicated.13

Occasionally a lease for years gives the lessee an option to terminate the tenancy before the end of the term named.13a Such an option would seem to operate by way of special limitation.

- (d) Surrender. An estate for years may be terminated by surrender, a yielding up of the estate to the owner of the reversion or remainder.14 But though a surrender terminates the estate as between the parties thereto, it does not, ordinarily at least, divest the rights of third persons based upon the existence of the estate.15 So it has been held that a tenant under a lease for years, after mortgaging his estate16 or after a lien in favor of another has otherwise arisen on such interest,17 cannot, by surrender, affect the rights of the lienor. And a surrender by a tenant to his landlord does not affect the subtenant's right of possession but the chief landlord, the surrenderee, becomes, in favor of the subtenant, the latter's landlord, with no other or greater rights to possession than belonged to the tenant in chief, the surrenderor.18

13. As was the case, apparently, in Callaghan v. Hawkes, 121 Mass. 298; Dudley v. Estill, 6 Leigh (Va.) 562.

13a. Palmer v. Wallbridge, 15 Can. Sup. Ct. 650; Hendry v. Squier, 126 Ind. 19, 9 L. R. A. 798,

25 N. E. 830 (semble); Jenkins v. Clyde Coal Co., 82 Iowa 618, 48 N. W. 970; Goelet v. Spofford, 55 N. Y. 647; Stedman v. Mcintosh,

26 N. C. (4 Ired. Law) 291, 42 Am. Dec. 122; Brown v. Fowler, 65 Ohio St. 507, 65 N. E. 76; Hooks v. Frost, 165 Pa. St. 238, 30 Atl. 846.

14. Co. Litt. 338b. Terstegge v. Girst German Mut. Benev. Soc,

92 Ind. 82, 47 Am. Rep. 135; Deane v. Caldwell, 127 Mass. 242; Snowhill v. Reed, 49 N. J. L. 292, 60 Am. Rep. 615, 10 Atl. 737; Harris v. Hiscock, 91 N. Y. 340; Greider's Appeal, 5 Pa. 422. As to surrender, see post Sec. 431.

15. Co. Litt. 338b.

16. Firth v. Rowe, 53 N. J. Eq. 520, 32 Atl. 1064; Allen v. Brown, 60 Barb. (N. Y.) 39.

17. Dobschmetz v. Holliday, 82 111. 371; Taylor v. Marshall, 153 111. App. 409; Farnum v. Hefner, 79 Cal. 575, 12 Am. St. Rep. 174, 21 Pac. 955.

18. Pike v. Eyre, 9 Barn. & C. 909; Mitchell v. Young, 80 Ark.

At common law, after a surrender by the tenant, the subtenant was regarded as free from liability for rent or upon the covenants of the sublease, on the theory that the subreversion to which they were incident had ceased to exist.19 This doctrine has in England been changed by statute.20 In this country it has been applied in at least one decision,21 and has occasionally been referred to without disapproval,22 while in one state it has in effect been repudiated, the subreversion being regarded as still in existence for the purpose of asserting the tenant's liability for rent and upon his covenants.23

- (e) Merger. An estate for years may come to an end by reason of its "merger" in the estate in remainder or reversion.24 As before stated, the general rule is that the estate which is merged must be no great441, 7 L. R. A. (N. S.) 221, 117 Am. St. Rep. 89, 10 Ann. Cas. 308, 97 S. W. 454; McKenzie v. Lexington, 4 Dana. (Ky.) 129; Eten v. Luyster, 60 N. Y. 252; Krider v. Ramsay, 79 N. C. 354; Hessel v. Johnson, 129 Pa. 173, 5 L. R. A. 851, 15 Am. St. Rep. 716, 18 Atl. 754; Cuschner v. Westlake, 43 Wash. 690, 86 Pac. 948.

19. Threr v. Barton, Moore, 94; Webb v. Russell, 3 Term R. 393; 3 Preston, Conveyancing 448.

20. 8 & 9 Vict. c. 106 Sec. 9.

21. Buttner v. Kasser, 19 Cal. App. 755, 127 Pac. 811.

22. Bailey v. Richardson, 66 Cal. 416, 5 Pac. 910; McDonald v. May, 96 Mo. App. 236, 69 S. W. 1059; Krider v. Ramsay, 79 N. C. 354. See Williams v. Michigan Cent. R. Co., 133 Mich. 448, 103 Am. St. Rep. 458, 95 N. W. 708. "And the criticism of the doctrine in editorial note in 13 Columbia Law Rev. 245.

That the subreversion is not so merged as to affect the liability under the covenants entered into by the sublessor, see Bailey v. Richardson, 66 Cal. 416, 5 Pac. 910; Standard Oil Co. v. Slye, 164 Cal. 435, 129 Pac. 589.

23. Hessel v. Johnson, 129 Pa. 173, 5 L. R. A. 851, 15 Am. St. Rep. 716, 18 Atl. 754.

That the liability for rent remains if the tenant, in making the surrender, reserves the rent, see Beal v. Boston Car Spring Co., 125 Mass. 157, 28 Am. St. Rep. 216. And see Appleton v. Ames, 150 Mass. 34, 5 L. R. A. 206, 22 N. E. 69; McDonald v. May, 96 Mo. App. 236, 69 S. W. 1059.

24. See Dynevor v. Tennant, 13 App. Cas. 279; Otis v. McMillan & Sons, 70 Ala. 46; Ferguson v. Et-ter, 21 Ark. 160, 76 Am. Dec. 361; Ewing v. Jas. H. Goodman & Co. Bank, 171. Cal. 559, 153 Pac. 945; Liebschutz v. Moore, 70 Ind. 142, er in quantum than the estate in which it is merged;25 but in apparent disregard of this rule are the statements which are found26 to the effect that an estate for years may be merged in another estate for years of less duration. An estate for years, no matter how great the number of years, being in the view of the common law less in quantum than an estate for life, may merge in an estate of the latter character.27

- (f) Forfeiture. An estate for years, like any other estate, may come to an end by reason of a forfei-ture for breach of an express condition, contained in the instrument by which the estate was created. As elsewhere stated, in the case of a lease, such a condition frequently takes the form of a provision for forfeiture, that is, a provision giving a right of re-entry, as it is termed, upon a breach by the lessee of any of the covenants of the lease.28 Moreover, even though no condition is expressed, a right of forfeiture or re-entry exists by statute in some states in favor of the landlord, on breach of any stipulation in the instrument of lease, or in case of an illegal use of the premises. And apart from statute, the landlord may have a right of re-entry by reason of the tenant's disclaimer of the landlord's title.29

- (g) Termination of lessor's estate. In the ab36 Am. St. Rep. 182; Carroll v. Ballance, 26 111. 9, 79 Am. Dec. 354; Denham v. Sankey, 38 Iowa 369; Story v. Ulman, 88 Md. 244, 41 Atl. 120; Hudson Bros. Commission Co. v. Glencoe Sand & Gravel Co., 140 Mo. 103, 62 Am. St. Rep. 722, 41 S. W. 450; Kershaw v. Supplee, (1 Rawle (Pa.) 131.

25. Ante Sec. 34.

26. Stephens v. Bridges, 6 Madd. & Gel. 66, 3 Preston, Conveyancing, 195. According to such a view, if immediately after making a lease for ten years, the lessor makes a concurrent lease for five years, the second lessee becomes reversioner for the term of five years, and if his estate and that of the prior lessee become vested in one and the same person, the ten year term is merged in the five year term.

27. 3 Preston, Conveyancing 219.

28. Post Sec. 76.

29. Post Sec. 77.

Sence of a statutory power or of an express power to that effect in the creation of the estate, one having a limited estate in land cannot, as against the person entitled in reversion or remainder, create an estate to endure beyond the normal time for termination of his own estate. This self-evident principle has been applied in the case of the making of a lease for years by a tenant for his own or another's life, the rights of the remainderman or reversioner being recognized as superior to any claim on the part of the lessee.30 And so the expiration of the lessee's estate by reason of a special limitation terminates the estate of his sublessee31

The enforcement of a forfeiture of the subrevcr-sion for breach of a condition of the original lease will defeat the estate of the subtenant and so terminate his tenancy.32

If a mortgagor having the legal title grants a lease subsequent to a mortgage, upon the foreclosure of such mortgage and the expiration of all right of redemption, the lessee has no interest which he can assert as against one claiming under the foreclosure,33 and the same rule applies in case of a sale under any other lien prior to the lease.34

If a mortgagee having the legal title makes a lease and the mortgagor redeems, the mortgagee's title there30. See, e. g., Sanders v. Sut-line Bros. & Co., 163 Iowa 172, 143 N. W. 492; Coakley v. Chamberlain, 8 Abb. Pr. (N. S.) 37, 38 How. Pr. 483, 31 N. Y. Super. Ct. (1 Sweeny) 676; Guthmann v. Vallery, 51 Neb. 824, 71 N. W. 734, 66 Am. St. Rep. 475; and cases cited ante Sec. 33, note 56a.

31. Eten v. Luyster, 60 N. Y. 252.

32. Hand v. Blow [1901], 2 Ch. 721; Brock v. Desmond & Co., 154 Ala. 634, 129 Am. St. Rep. 71, 45 So. 665; Frazier v. Caruthers, 44

111. App. 61; Miller v. Prescott, 163 Mass. 12, 47 Am. St. Rep. 434, 39 N. E. 409; Stees v. Kranz, 32 Minn. 313, 20 N. W. 241; Eten v. Luyster, 60 N. Y. 252; Cusch-ner v. Westlake, 43 Wash. 690, 86 Pac. 948.

33. Rogers v. Humphreys, 4 Adol & E. 299; Comer v. Sheehan, 74 Ala. 452; Gartside v. Outlay, 58 111. 210, 11 Am. Rep. 59; Lane v. King, 8 Wend. (N. Y.) 584, 24 Am. Dec. 105.

34. See 1 Tiffany, Landlord & Tenant Sec. 78 n (3).

Upon coming to an end, the lessee or his assignee cannot retain the possession as against the mortgagor,35 and the same is true if a purchaser at execution sale leases and the execution defendant subsequently redeems.36

- (h) Destruction of premises. The question has frequently arisen whether destruction of or injury to part of the premises, ordinarily a building upon the land leased, terminates the liability for rent, and the great majority of the decisions are, as elsewhere stated,37 to the effect that, apart from a statute or special stipulation to the contrary, the liability for rent continues as before. This view involves the view that the tenancy itself still continues. It has, however, been frequently decided in this country that the liability for rent ceases if the leased premises consist merely of a building or a part of a building without including any land, and the building is destroyed,38 and there are a number of cases in which it is specifically stated that the tenancy ceases in such a case, there being no longer any subject-matter on which the tenancy can operate.39

II (B) Tenancy at Will.