177. Assignment and subletting. The tenant may, unless he has contracted not to do so, either assign his whole interest or sublet the premises.

1. Assignment. Unless restrained by the lease the tenant may assign his estate. If he assigns it, he ceases to have any estate, although he remains liable for the rent and other covenants unless the landlord consents to the assignment. Such consent may be gathered from the acceptance of rent from the assignee. The law may work an assignment by the sale of the tenant's estate for debt or by his death. As an estate for years is personalty it passes to the executor of the deceased tenant

and not to his heir.

2. Subletting. Unless restrained by the lease the tenant may sublet the premises or any part of them. A grant of the lessee's whole interest is an assignment; a grant of a part of his interest is a sublease. If he has an estate for ten years and grants one for eight, or if he grants a part of the premises, this constitutes a sublease. It has been held that granting a part of the premises for the whole unexpired term is an assignment as to that part, but the authorities do not agree as to this. A sublessee is the tenant of the first lessee, not of the landlord. But neither an assignee nor a sublessee while in possession can deny the landlord's title.

178. Rent and remedies for nonpayment. The rent reserved by the landlord who owns a fee is itself real property until due and payable, when it becomes personalty. Hence all rents due at the death of the owner go to the executor, while rents not accrued go to the heir.

The remedies of the landlord when the tenant fails to pay the rent are (a) an action in debt or covenant to recover the amount due; (b) reëntry on the premises if such right is reserved in the lease or is given by statute; (c) in some states a lien on the crops grown on the leased premises.

Many states forbid by statute the landlord to take forcible possession of the premises in case the tenant is delinquent, and nearly all states provide a summary judicial proceeding for the eviction of a tenant who is in arrears.

179. Termination of lease. A lease is terminated as follows: (a) when the time fixed in it expires (as to tenants at will and from year to year, see sec. 158);

(b) when surrendered by voluntary act of the tenant acquiesced in by the landlord;

(c) when there is a breach of the tenant's covenant, which, by the terms of the lease, gives the landlord a right to terminate the tenant's estate;

(d) when the landlord's title is extinguished, as when a life tenant who lets the premises dies, or when the landlord is dispossessed of title by an adverse claimant;

(e) by statute in some states, when the buildings on the premises are destroyed without the tenant's fault; but at common law the destruction of the premises will not terminate the lease except where the tenant has hired only a part of the building.

REVIEW QUESTIONS

SECTION 157. How is property classified when considered as an object? What two main classes in the law? What is real estate? What is personal estate? What is corporeal real property and what incorporeal? What is corporeal personal property and what incorporeal? Define land; tenements; hereditaments. What practical differences exist between realty and personalty?

158. How are estates in land divided? What is a freehold estate? What two classes? Define each. How is each divided? Define dower; curtesy ; homestead estate. What four classes of estates less than a freehold? Define each.

159. What is a future estate? What is a reversion? What is a remainder? Illustrate.

how created? What is a tenancy in How is realty held by a partnership? What is community property?

160. What is a joint tenancy and common? Characteristics of each? What is a tenancy by the entireties? 161. What is a private trust? How enforced? What is a charitable trust? How enforced? Illustrate.

162. What is included in the term land? What may one do with overhanging branches? Explain the ownership of waters.

163. What two classes of vegetable products? Which is realty? Which personalty? Who owns a border tree?

164. What is a fixture? State the rules to determine whether an article is a fixture. What is meant by physical annexation? When is an annexed article clearly a fixture? When is it doubtful? What difference does it make who annexes the article? What may a tenant remove?

165. What is the common law as to cattle trespass? What do statutes provide as to fences?

166. What is a nuisance? 167. What is an easement?

What is lateral support?

How may it be acquired? How in light and air? How in a right of way? What is a way of necessity? Explain rights in highways.

168. How must a contract to sell land be made? When does title pass? How does equity regard this? Illustrate.

169. How are conveyances of land made? What is a quitclaim deed? What is a warranty deed? What are the warranties? How must a deed be executed? Is delivery necessary? What is an escrow? What are the parts of a deed?

170. How must a will be executed? Explain who should not be witnesses, and why. If a devisee dies before the testator, what becomes of the devise? What effect has subsequent marriage on a will? Who may make a will? 171. If one dies without a will, to whom does his realty go? his personalty?

172. Explain title by adverse possession.

173. What is a mortgage? How is it executed? Why should it be recorded? What is an assignment? What is a discharge? What is foreclosure?

174. What other liens besides mortgages may be created upon lands? When is a judgment a lien? What is an abstract of title?

175. How is an estate for years created? When does it begin? What is the form of a lease? What express covenants may it contain? What covenants are implied?

176. Who takes the risk as to defects in the premises? Exceptions? Who must make repairs? What are estovers? What is waste? What is the penalty for waste? Why can the tenant not deny the landlord's title? 177. What is the effect of an assignment of a lease? When will it occur? How does a sublease differ from an assignment?

178. Is rent realty or personalty? What are the landlord's remedies against a tenant for rent? Is forcible entry allowed?

179. How is a lease terminated?

CHAPTER XV

PERSONAL PROPERTY

I. CLASSIFICATION: KINDS AND ESTATES

180. Classification. Personal property consists of the following: 1. Chattels real, that is, leasehold interests in land. These have already been considered.

2. Chattels personal, including all property except property in land. Chattels personal are further divided into:

(a) Choses (i.e. things) in possession, or corporeal personal property, of which one may take physical possession and control, like coin, cattle, books, etc.

(b) Choses in action, or, incorporeal personal property, that is, a legal right regarded as an object, as a right to sue for and recover a debt, a right to share in the profits of a corporation, the right to a patent, copyright, or trademark. Such a right may be evidenced by a chose in possession, as where a debt is evidenced by a promissory note, an interest in a corporation by a share of stock, or a monopoly to make and vend an article by letters patent. In such case the paper on which these evidences are inscribed is a chose in possession, but the right is incorporeal or "in action."

Personal property may become real property by being annexed to land as a fixture. This has already been discussed. Real property may become personal by being severed from the land, as when a tree is felled, or minerals are dug, or buildings pulled down. Some things growing upon land or attached to it are personalty, as growing crops or articles annexed, but not fixtures. A few movable articles are realty, as the keys to a house, the title deeds to land, or separable parts of a machine fixture. Of the various kinds of personal property only a few can here be considered.

181. Property in animals. Animals are either domesticated or wild. In the former the owner has absolute property. In the latter one may have a qualified property, and this may ripen into an absolute property.

1. The owner of the land upon which wild animals are, has the exclusive right to hunt, capture, and kill them while they are there. Any person coming on his land for such a purpose without his permission is a trespasser; if such trespasser kills an animal there, whether it belongs to him or to the landowner is a disputed question.

2. One who captures a wild animal and keeps it in captivity has the exclusive right to it while it is in his possession. If it acquires the habit of returning after wandering at large, it is still his. But if it regains its natural liberty and remains at large, it is no longer his, and belongs to any one who captures or kills it. A mere temporary escape, however, may not amount to regaining its natural liberty, as where a canary escapes into the street or an animal from a menagerie.

3. One who rightfully kills a wild animal has the exclusive property in it.

4. One who keeps a wild animal of a dangerous or mischievous disposition does so at his peril. If it injures another, he is liable.

5. One who keeps domestic animals is liable if they escape and trespass upon another's land. But he is not liable for injuries due to their vicious disposition unless he knows of such vicious propensity in the particular animal doing the injury. Wild animals and vicious domestic animals, known to be such, one keeps at his peril.

182. Trademarks; good will; names. These are incorporeal property rights which call for special mention.

1. Trademarks. A trademark is a name, symbol, or other device put upon goods by a manufacturer or dealer in order to distinguish them from like goods of other persons. It is a kind of commercial seal or signature.

If the name or device is invented or fanciful, the user of it gets a property right in it. But if it is a word of common use,