Putnam's Handy Law Book for the Layman

Desertion is a general ground of divorce, the law in every state prescribing a period of time, quite often three years. The period must be continuous. An offer to return made by the deserted spouse in good faith at any time before the separation has run for the statutory period will bar a divorce, but not if the offer is made afterward. Again, a husband who drives his wife away from him by his misconduct deserts her as clearly as if he had left her. To cease living together for the time fixed by statute is not desertion unless this was done intentionally. For example, separation on account of business, sickness, etc., is not desertion. Not only must there be an intention to leave the other party, this must be without consent.

Another cause for divorce, quite generally recognized, is habitual drunkenness. This must be of a gross and confirmed nature. While other causes exist the most general have now been mentioned. In some states there is a more general ground, any reason rendering married life a failure. Of course, much depends on the discretion, mental and moral make-up of a judge in applying the facts to a cause for separation that is so general. An agreement in advance to make a cause of divorce is everywhere condemned by the law.

Divorces are of two kinds: from the bond of marriage, often called absolute divorces, which put an end to the marriage relation and render the parties single; and divorces from bed and board, limited divorces, more accurately called judicial separations, in which the marriage relation is not dissolved, but the injured party is given the right to live separate from the other. In more than half of the American states no distinction is made between kind of divorce, all divorces are absolute, from the bond of marriage.

The legal effect of divorces is still a grave matter. When a divorce has been legally granted by a state, the courts of every other state for obvious reasons recognize and try to uphold the decree or judgment, though not all of them, and consequently strange results follow. Thus a person who was married and living in New York leaves his wife for good reason and goes to Connecticut. After acquiring a legal residence there and proper standing in a court, he applies for a divorce, the proceedings are regular in every respect and a divorce is granted. He marries again and takes his wife to New York for a visit. There he is sued by the first wife for support, moreover, by the laws of New York he is an adulterer. In New York he is still married to the first wife, in Connecticut to the second. If children are born of the second marriage they are legitimate as long as they live in Connecticut, illegitimate should they go to New York. One of the latest legal writers on this difficult subject says: "Foreign divorce judgments granted in states where the plaintiff had obtained an actual, bona fide residence, will doubtless continue to be recognized by the great majority of our states, but the states of New York, California, Maryland, Massachusetts, Vermont, South Carolina, Pennsylvania, and possibly some other states, which have adopted the extreme New York doctrine, are permitted by the rule established in the Haddock case – a decision by the Supreme Court of the United States – to continue to refuse recognition of divorce judgments in other states."

Innkeeper.– An innkeeper's house is a public place to which travelers may resort. He cannot therefore prohibit persons who come under that character in a proper manner and at suitable times from entering, so long as he can accommodate them. He is not obliged to receive one who cannot pay for his entertainment. Indeed, he must exclude some persons who apply, notably thieves. He can refuse to admit all whom he has reason to believe will disturb the peace and safety of his guests; and can afterward exclude all who, though admitted, prove to be noisy and disturbers of the comfort and safety of others. And if having a stable he is under the same obligation to receive and care for horses as he is to receive the person to whom they belong. Again, he is not required to provide a guest with the precise room he may select, but only reasonable and proper accommodations. If he refuses to do so he is liable in law to the applicant.

In caring for the baggage of a guest, the law is not as well settled as it might be. A competent writer has said: "They are insurers of the property of their guests committed to their care, and are liable for its loss, unless caused by the act of God, a public enemy, or the neglect or fault of the owner or his servants." This strictness of liability, it is said is necessary to protect travelers against any collusion between the innkeeper and his servants, and to compel him to take care that no improper persons are admitted into his house. His charge for the entertainment of his guests is sufficient to cover this risk; he also has a lien on their property entrusted to his care to indemnify him against loss.

By statute in many states innkeepers are exempt from loss by fires which are in no way caused by their own negligence or that of their servants. If a horse dies while in the innkeeper's charge, he is liable unless he can show facts that excuse him.

If the goods of a guest are stolen by the innkeeper's servants or domestics, by another guest, or by someone outside the inn, the innkeeper must make restitution, for it is his duty to provide honest servants, and to exercise an exact vigilance over all persons coming into his house as guests or otherwise. His responsibility extends to all his servants and domestics, and he is bound in every event to pay for them if stolen, unless they were stolen by a servant or companion of the guest. Illness or absence of the innkeeper does not excuse him. An innkeeper is not liable for the loss of a guest's property when this loss is due to the fault or negligence of the guest himself. Thus an unnecessary display of money or valuables, or leaving them where they would tempt thieves, may be negligence. But failure to lock or bolt his door is not necessarily negligence on the part of a guest. It is only evidence of negligence. Nor is an innkeeper exonerated when a theft is committed by a fellow guest with whom the owner of the property stolen had consented to occupy the same room.

An innkeeper may make needful and reasonable regulations that are to be observed by his guests to secure the safety of his property. When they are made and brought to the knowledge of a guest he is bound by them. By contract, custom and statute the responsibility of an innkeeper may be changed. In many states by statute an innkeeper avoids liability for the valuables of his guest unless they are deposited with him. These statutes are construed strictly in favor of the guest. Nor can an innkeeper even by these exempt himself from everything, for if a guest were required to deposit all he had to secure such protection, he would be in a strange fix. Said a Georgia court: "Is the guest to deposit his valise there, and go and send for it to get out a clean shirt?"

If a guest goes away, leaving his valise or other things with an innkeeper, he is not required after a reasonable time to observe such diligence in keeping them as he receives nothing in the way of compensation for so doing.

Keepers of lodging and boarding houses are not innkeepers, nor subject to their liabilities. The proprietor of such a house does not hold himself out to the world as prepared to supply accommodations for all who may apply, nor is he required to receive any persons unless he chooses to do so; an innkeeper's freedom is restricted in this respect. A house may have a double character of boarding house and inn. With transient persons who, without a definite contract, remain from day to day it is an inn; with those under definite contract it is a boarding house.

Land License.– A license is an authority to do something on another's land without acquiring ownership therein, and may be given orally, or it may be simply a permission to use or occupy. A license may be executory, relating to a future act, or it may relate to an act already done or executed. An executory license may be revoked at any time. Thus A laid a water pipe by permission across B's land who afterward rendered the pipe useless by cutting it. A had no redress, for B was acting within his rights. A ought to have obtained written authority for such action. He could, however, remove the pipe or any other improvement he had made on the strength of the license granted to him.

A license may be to do many things on another's land. Thus one may have a license to flood land, erect buildings, pass overland, maintain a ditch, cut timber, use land for railroad purposes. A common form of license is a ticket of admission to enter another's land to witness a spectacle or similar purpose.

No formality is needed to create a license. It may be in writing or be oral, or implied from the relations or conduct of the parties, as where a land owner assents to the doing of certain acts on his land. A person by opening a place of business licenses the public to enter therein for the purpose of transacting business. And a license to do a particular act necessarily involves any act essential thereto.

A license is usually revocable at the pleasure of the licensor, even though it be in writing and under seal, or a consideration has been given. If the licensee has expended money and made improvements on the faith of the license, can it be revoked? On this question the courts divide. The more general opinion seems to be that a license coupled with a grant or interest cannot be revoked. Or, if a license has in effect been so used as to become an easement it remains a burden on the land though sold to a purchaser, unless he had no knowledge of it. A license cannot be assigned by the licensee to another.

Again it is said that the revocation only affects the future exercise of the privilege, and does not prevent the licensee from removing structures or other movable articles placed by him thereon relying on the license, provided he does this within a reasonable time after the revocation. Even should the owner of land sell, the sale would not operate as a revocation to one to remove trees that he had already cut under a contract of sale and removal.

If a person grants a license to another to come on his land, he owes no duty to him except the negative one of not wantonly injuring or exposing him to danger. Merchants invite the public into their stores to buy wares, but those who accompany them without any intention of purchasing are not invitees, they are mere licensees. The duty of the storekeeper to one who enters his premises by mere license is not to keep the premises in a non-hazardous state, but only to abstain from acts willfully injurious to him.

Lease.– A lease is for the use of land, usually for a few years or shorter period. The lessor is more generally known as the landlord, and the lessee as the tenant. The lease may be oral, though the better way is to put the agreement in writing. If it be for a house or other building the lessee should insist on this, otherwise he would fare much worse should the building be destroyed by fire. Doubtless many do not know that, unless the lessee makes a specific agreement relieving himself, he is liable for the rent of a building, just the same if it is burned down as if he were still the occupier. This is the common law, which has been changed in some states by statute.

If the lease is for more than a year, or other short period, the Statute of Frauds, so called, requires that it must be in writing. If the time be less, a verbal lease may be made, even though the lessee does not take immediate possession of the premises. If on the other hand, it exceeds the statutory period, it is not absolutely void, but continues during the joint wills of both parties, and may therefore cease at the will of either party. If the landlord wishes to terminate it, he must give the tenant notice to quit; should he disregard the law and take immediate possession he would be a trespasser.

When the terms of a lease are in doubt, they are construed in favor of the tenant. A lease to a specified day continues during the whole of it, though custom or statute may prescribe a different rule. A term may also continue during the option of either of the parties to be ended on notice by the party exercising the option.

The most usual agreements or covenants in a lease are on the part of the lessor for quiet enjoyment, which secures the tenant against any hindrance or disturbance of his possession and enjoyment of the premises from persons deriving their title from the landlord, or from any one else who claims to be the owner. Also against all encumbrances, in other words, that no one has any easements or other rights in the premises. The landlord also usually agrees to repair, and often to renew the lease, and the lessee to pay rent, to insure and not to assign or underlet, without the landlord's consent. The parties may of course agree to do any other lawful thing, for example, sometimes the tenant agrees to make repairs, to reside in the premises, not to engage in some kinds of business, to cultivate the land, if the lease be of a farm, in a specified way. Again though an oral lease for a term of years at a stated annual rent may not fulfill the requirement of the Statute of Frauds, the parties may conform to it and thus create a tenancy in fact from which the law will imply a leasing from year to year. If therefore the tenant with the acquiescence of the landlord continues in possession for several months after the expiration of the original term, a tenancy for another year will be created with a corresponding liability on the part of the tenant for a full year's rent. And the measure and extent of the tenant's liability would be the same, whether his continued occupancy related to the original lease, or to a subsequent one just like it, made as the first was soon to expire.

The definite period for which a lease is given is called a term. If a lease is from the first day of January, it begins on the second day and lasts through the last day mentioned; in carefully drawn leases the number of days is fixed to avoid all dispute. A lease for a year with the privilege of remaining three years or longer does not mean a single period of three years, but three yearly periods as the tenant may elect.

A lease may be made to take effect in the future, provided the time for taking possession is not so far away as to violate some statute to the contrary. A lease for an hundred years in some states is deemed a parting with the absolute title to lands though railroads make long leases running for ninety-nine years. If the length of the term is not definitely expressed in the lease, the time may be ascertained by other evidence. When a lease is to run for one or more years "from" a specified day, the corresponding day of the year is excluded from the term, unless a contrary custom exists. A lease to a specified day ends with its expiration. If there be a doubt on which of two days a lease terminates, the lessee may decide. More generally, leases of doubtful duration are construed in favor of the tenants. By statute in New York leases which do not specify the length of occupation, extend to the first of the following May after taking possession.

A lease must describe clearly the premises, nor can a defective description be cured by outside evidence. Any language will suffice that shows the intention of the parties. The words "grant," "demise," and "to farm let," have a technical meaning, and are generally used, but other words may be and often are used. A memorandum expressing the consent of the owner that another shall have immediate possession of the premises, and shall continue to occupy them at a specified rent and for a definite term, is a sufficient lease; in general, any agreement under which one person obtains the right of enjoyment to property of another, with his consent and in subordination.

A distinction exists between a lease and an agreement for a lease, which should be understood, though it sometimes is not by the parties themselves. If the agreement is a lease, it cannot be changed by other evidence, for it is a completed contract; but if it is an agreement for a lease, then it is not complete and other evidence may be produced to show what the parties intended. How can the nature of the agreement be tested? By ascertaining whether it is complete or not. Thus A wrote to B that he would take his home at a stipulated rent for two years if he would put in a furnace, with which offer B at once complied.

This was a lease, for by putting in the furnace nothing more remained to be done. If he had not put in the furnace, or not before the time A was to take possession, there would have been no lease, unless A had waived his offer and taken possession.

Of course to make a valid lease there must be competent parties. A lease made by a minor is not void, but he may avoid or cancel it by some positive act. Can he do this before attaining his majority? On this the authorities differ. Again appears the risk of making contracts with minors, though the situation many times seems clearly to justify such action. A guardian may lease his minor's land for the period of his minority; if leased beyond, the ward may have the lease canceled for the excess. A lease terminates on the death of the ward, whatever may be the length of the term. A parent cannot lease the land of his minor child like a guardian.

By common law a lease made by a married woman was avoided after her husband's death. The modern statutes excluding her husband's power of control over her property and authorizing her to take and hold property as if she were an unmarried woman, have abolished both his power to invalidate the lease and also her power to repudiate it after his death.

A private corporation may make a lease of its property provided that in doing so it acts within its charter. A municipal corporation, while it may lease property belonging thereto of a private nature, cannot lease property which has been devoted to public use. A corporation whether public or private may take a lease of property so far as this may be a proper means of carrying out the purposes for which the corporation was created.

Executors and administrators may dispose of a lease belonging to the deceased, or make new leases for terms within the period covered by it. Trustees have a still larger authority to lease the lands entrusted to them, unless restricted by the terms of their trusteeship, or by statute. Though a member of a partnership, as we have seen, is an agent, he cannot make valid lease of partnership land.

What may be leased? Besides land, the right to a wharf, to flow with water the land of another, to go over another's land. An ordinary boarder, who has a room and boards in the house of another and who retains the possession and care of his room, is not a tenant. On the other hand the letting of an entire floor for lodgings may create a tenancy, and so may even a single room. A lease for an unlawful purpose is void, for example, for the sale of spirituous liquors contrary to law.

If the premises are occupied by the lessee and his rent is paid as specified in the lease, this is regarded as a ratification by him of an invalid or void lease. To this rule are some exceptions.

A rule of construction may here be added; if a blank form is used in making a lease and the printed and written parts or agreements are inconsistent, the matters written are regarded as expressing the intention of the parties.

Much might be said concerning the use of the premises. If a farm is rented and the lease is silent on the matter, the law presumes that the tenant will use it in a proper and husbandlike manner, like other exemplary farmers in that vicinity. He must cultivate the soil properly, preserve the timber, consume the hay as fodder to the cattle, if such be the custom, and keep the buildings and fences in repair. Manure in the ordinary course of farming belongs to the farm. To manure made in livery stables a different rule applies and the tenant can remove it. If the lease be of a mill it usually provides how it shall be run, if it be a house in the city and nothing is said about its use the law implies that there shall be no waste or destruction beyond the ordinary wear and tear. To use the doors for firewood is not uncommon with tenants, unless they are not burnable, though surely it is not a proper use of a leased house.

A farm tenant has the right to take and use material found on the land suitable and needful to repair the buildings, fences, also dead and fallen timber for fuel. He cannot use shrubbery and ornamental trees for this purpose, nor cut standing timber for this purpose. He is entitled also to the way going crop, but must remove it during his lease. He cannot go on the land afterward and remove crops, unless he was prevented by some good reason from removing them while he was in possession.

Can a lessee assign or sublet his lease? Of course this may be forbidden, and often is by the lessor, without his consent. If the lease is silent this can be done. If the lessee die, his executor or administrator can assign the remainder of his term. A lease may also be assigned if the lessee become insolvent, also by a new partnership created by the addition or retirement of a member. A transfer by the lessee of the whole or a part of his interest for a part of the time is a sublease and not an assignment. And whenever a sublease is made, the rights of the original lessor are not changed, nor does he recognize in any way the sub-tenant unless by agreement, nor has he any right of action against him. Of course there is nothing to prevent the parties from making any arrangement that may be agreeable to them.

As the lessee may assign or sublet unless forbidden, so may the lessor part with his interest in the leased premises. When an assignment of it is made, the assignee may sue in his own name for rent accruing after the assignment.

The lease of a private residence is not a warranty that it is reasonably fit for occupancy. Thus saith the law. Nor can a lessee, unless the lessor has misrepresented the healthfulness of the place, leave after the unwelcome discovery that it is not healthful. This seems to be rather harsh, but the rule is founded on the presumption that the lessee will examine the house before leasing and make proper inquiries about its healthfulness.

By the common law the lessor was not required to make repairs. This has been changed in some states by statute. He is not required to make repairs needed and known to the tenant at the time of making his lease. Hallways, staircases, elevators, and the like that are used in common by the tenants of a building and are under the landlord's control, must be kept in repair by him. If he shall let a many storied building to several tenants, to each tenant a story, who have exclusive possession thereof, the lessor will not be liable to any lessee for the damage caused by another.

If the landlord agrees to make repairs and keep the tenement in good condition, he is required to keep it in essentially the same condition as it was when the tenant took possession. Should the house or other building be destroyed by fire what then? An agreement to keep it in good repair imposes an obligation on the landlord's part to rebuild. But an agreement by the lessee to keep and leave it in good repair, does not require him to rebuild should it be destroyed by fire, or other cause without any fault of his own. If the lease provides that the insurance money, when the landlord has insured the premises, shall be applied to rebuild in the event of fire, he must regard his agreement, but if there be no such agreement, the tenant cannot compel his landlord to thus apply it. Should the lessor fail to fulfill his agreement to repair, the tenant is not excused from paying his rent, nor justified in leaving the premises. His remedy is to sue his landlord for the damages or injury to himself. And even if the premises be destroyed by fire the tenant must continue to pay his rent unless he has been wise enough to relieve himself by a proper clause, or unless some kindly statute has been passed relieving him on the happening of such an event. No oral stipulation, that the parties should make covering the effect of loss by fire or other contingency, would be binding if contrary to the terms of the written lease. As this is the highest form of the agreement, all verbal stipulations to the contrary must give way.