#### *C. Van Doren and H. Van Doren *against*T. S. Everitt.

Lease by voidable • but is confirmed by an act of pressing his he is^twenty-one.

a right of *ryonthe piration of the lease, m order usual crops, be'agreement to the eontrary.

THIS cause was tried in the *Middlesex*circuit, in *June*terra 1817. The case made out on the trial was this: *Benjamin*Doughty,. as guardian of *Thomas S. Everitt*and pfo sjsfer on the loth of *February*1813, made a lease of their lands to the plaintiffs for the term of two years fr°m the first of *April*then next, containing special agreements for particular privileges and duties, (as per lease.) defendant attained his age of 21 years on the 22nd of *July*1814. The plaintiffs continuing in possession, under their lease, the defendant gave them notice in the Usual form to quit, &c. at the expiration thereof, but they notwithstanding, on the last days of *March*or the first *April*1815, or perhaps partly on all these days (for there is a difference as to this matter among the wit*529nesses) sowed part of the said lands with oats, and when the harvest time came, the defendant cut and carried ■ away the crop. There was evidence also of the quantity and value of the said crop so cut and carried away.

Upon this state of the case, there was a motion for a nonsuit. 1. Because, the lease being for a longer time than the infancy of the ward, it is void; and if not wholly void, it is so, at least, after the ward attained his age. 2. Because the interest of the plaintiffs in the said lands being certain and determinate, it was their own folly to sow after the expiration of their term, or even at the close of it, without covenants of ingress and egress for taking of the crops.

But by the court. 1. Though the lease of a guardian extending beyond the infancy of his ward, should be deemed to be void; yet if the ward, after he attain his age, so far assents to the terms of the lease as to let the tenant spend his labour and money on the land, he shall not afterwards avoid it by entry. In this case there is *evidence*of the defendant’s recognition and assent in his issuing notice to quit according to the terms of the lease, and that long after he came of age. This evidence must be left to the juiy.

2. As to the second reason. If a man rent lands for two years, he has a right to *two courses*of crops ; and though one should not be taken off the land at the expiration of the term, (as must ne*cessarily be the case) yet he has a right without special covenants to enter, and take the same when it is ripe. If he enters in the spring, as is the custom, and then sow his spring crop for that year and in the autumn his winter grain, and so the next year also, though the winter grain of the second year will not be ripe till *July,*long after the expiration of his lease, yet he shall have a right to enter and take it. But if upon the presumption of right, he should in the third spring, say in *March,*just before the expiration of his lease, sow a summer crop as oats or barley, he cannot enter to take this, because it would be giving him the product of three years instead of two. Upon general principles therefore, these plain*530tiffs would not have been entitled to the crops in ques-

But in this case there are special provisions in the lease, which I think may be construed so as to give the liberty of putting in oats in the spring of 1815, instead of the rye, which he might of common right, have sowed the preceding autumn; and being capable of this construction, I shall leave it to the jury to consider whether from the common custom of the country, and from the expressions contained in the lease, this was not the true intent of the parties.

Both these questions therefore, must be left for the consideration of the jury, taking the law as I have now stated it, and the fact as they shall find it to be made out by the evidence.

The defendant then called sundry witnesses as to the time of sowing the oats, and as to the quantity and value thereof. The cause was then submitted to the jury, after a few words by way of charge; recapitulating what had before been said on the motion for nonsuit; and there was a verdict for plaintiffs for 72 dollars and 50 cents ; with which I saw no reason to be dissatisfied.

The lease, let the farm, “ for the term of two years, from the first of *April,*1813,” for the rent of 65 dollars per year, to be paid on the first of *April*each year: and among other conditions was one in the following words: “ the said *Vfindorens,*the-first year are to plant the field next to the barn southward, and to sow the same with rye or oats; and to sow the corn ground next the woods with oats and clover-seed, which clover-seed said *Doughty*and *Everitt*are to find. The second year, said *Vandorens*are to plant the young orchard back of the house, together with the field next adjoining westward, and to sow the same with rye or oats, and clover, if there is any to gather on the place.”

*The following reasons for setting aside the verdict and granting new trial, were filed.

1. Because the court refused to nonsuit the plaintiffs. 2. Because the construction of the lease was submitted to the jury instead of being decided by the court. 3. Because the court erred in the charge to the jury. 4. Be*531cause the verdict was against law. 5. Because the verdiet was against the evidence.

*Ewing*in support of the rule. *Ilardenbergh*contra.

Kirkpatrick C. J.

Upon this case I observe.

1. A guardian appointed by the Orphans’ Court in one of our counties, under the statute, supplies the place of both a guardian for nurture and a guardian in soccage, in the ancient law. Such guardian has not only the custody of the person, but also the care of the land, (a) This *it*is presumed will not be questioned.

A guardian in soccage then has not only the *care*of the land, but also an *interest*in it. He is said to be *Dorn,inns pro tempore,*and to have the seizin of the land, *una cum exitilms.*He may let it for years and the lessee may have an *ejectione firmse*thereupon. This is settled in the case of *Shoplane*v. *Royderer. Cro. Jac.*55, 99.

Such guardian, then, not having abare authority only, but also an interest in the land, he may make leases thereof as any other having interest may do ; and if he make a lease to continue beyond his guardianship, it is not absolutely void upon the infant coming of age, but voidable only. And consequently the infant may at that time, either affirm the lease or avoid it at his pleasure. (b) If he accept of rent or .do any other act or acts, shewing his assent thereto, it is construed to be an affirmance. In one case, the infant after his age, saying to the tenant, *God give you joy of it,*was held enough to confirm the lease. *Bacon, Leases*&c. *I.*9.

2. It is readily admitted, that according to the strictness of the ancient law as laid down by *Littleton,*in section 68, if the lessee for years or other term certain, had sown the land, and the term had expired before the crop was ripe, he could not enter to reap it and take it away. It was said to be his own folly to sow.

*532But then this rule even in *England,*admits of exceparising from the custom of the country; and such custom too *has been adjudged to be good and reasonable, and that whether the lease were by deed or by parol only.

In this state I have always understood it to be the universal custom, and therefore the settled law, that the tenant, after the expiration of his term, should have liberty to enter, cut, and carry away his way-going crop as it is called, that is all the grain which he had sown, but which was not then yet ripe, *(a)***And what can possibly be more reasonable? Here leases are usually from year to year, from *April*to *April.*Shall the lessee have, for his year, the benefit of the spring crop only, and be deprived of the winter crop, -which is by far the most important ?

It may be said that he ought to guard himself by covenants. It is true, he may do so. But still 'the very essence of the 'contract is that he shall have one year’s course of crops. He pays a year’s value, he bestows a year’s labour, he must sow in its season or not at all, he must eat in the winter as well as in the summer. The very nature of the thing shews that he is to have the successive crops of the year. Shall the tenant be deprived then, of the substantial benefits of his lease, unless he shall fortify himself with covenants of entry ?

I have always understood the universal custom of the country to be otherwise, as well as the course of decision in all the courts. Indeed the matter appeared to me to be so well settled, that I was surprised to hear it even made a question.

But besides, in this case there is a particular stipulation contained in the lease itself, “ that the plaintiffs, in the first year, are to plant the field next the barn, southward, and to sow the same with rye or oats, and to sow the corn ground next the woods with oats and clover-seed ; and that, in the second year, they are t.o plant the young orchard back of the house, together with the field *533next adjoining, westward, and to sow the same with rye or oats, and clover.”

The lease was for two years, beginning on the first of *April*1813; it is expressly stipulated that the tenants should have the privilege of sowing two crops of rye; the crop of the last year could not possibly be reaped before the expiration of the lease ; this stipulation of itself, therefore, amounts to a covenant that they shall enter and reap it after that time, unless we can suppose they were to sow it for the benefit of the landlord and not for their own ; a supposition too absurd to be seriously maintained.

*3. The construction of the words of the lease which, it was said, gave permission to the tenants, in the second year, to substitute one crop in the place of another, that is, instead of sowing rye in the autumn to sow oats in the following spring, could not be made with certainty and precision, in any other way than by referring them to the course of husbandry and the custom among farmers in that particular part of the country. It was stoutly maintained, that the sdwing of the corn ground with oats, in the second year, must be intended a sowing with winter-oats in the autumn, and not with the common oats in the spring, when the lease must have expired, or nearly so.

This winter-oats was altogether a new thing to me, but I thought I had heard of oats being sown in the autumn or winter in *England,*and therefore did not choose to decide the matter conclusively myself, but rather after having first stated the general import of the words, when applied to the different positions taken by the parties, to leave it to the jury, who were perfectly acquainted with the nature and succession of crops, to apply them according to the subject matter, and by that means to find the true meaning of the instrument. The meaning of the words, simply considered, was clear enough, the state of things upon which they were to operate was the difficulty, and this was a matter of fact to be proved by the evidence and to be found by the jury. And besides all this, as to the substance of the thing, it could make no difference to the landlord whether these tenants entered to reap their crop of oats, or their crop of rye.

Upon a review of the whole matter, I am satisfied the *534law was correctly declared, and the verdict justly found. therefore,

Let the rule to shew cause be set aside.

Rossell J.

From the report of this case, by the Chief Justice, it appears that *Benjamin Doughty,*guardian to *Thomas 8. Everitt*and his sister, leased on the 10th of *February*1813, the farm of his wards for two years from the 1st of *April*1813, to the plaintiffs. By special provision, in the said lease, the *Van Dorens*were entitled to plant certain fields, therein described, and sow the same with a crop' of rye *or*oats. ‘ That in *July*1814, the defendant, *Everitt,*attained the age of twenty-one years, the *Van Dorens*then being in possession of the premises under the lease. *Everitt*gave them notice in the usual form, to quit at the *expiration thereof. That on the last days of *March*1815, or on the first days of *April,*or partly on all these days, the plaintiffs, *Van Dorens,*sowed a part of their lands with oats, which at the time of har- ' vest were cut and carried away by the defendant. On the trial, a motion was made for a nonsuit which was overruled, and the jury gave a verdict for the plaintiffs for 72 dollars, 50 cents, with which the judge was satisfied. There is now a motion for a new trial, with an allegation that the Chief Justice refused to nonsuit the plaintiffs, and left the construction of the law to the jury, erred in his charge to them, and that they gave' a verdict contrary to law and evidence.

On examining the reasons of the Chief Justice for refusing to nonsuit ¿the plaintiffs, and his charge to the jury on the law and the evidence, I consider them well founded in law and equity. The lease from the guardian, who had the sole charge of the estate of his wards, was certainly good until those wards, or one of them, should arrive to full age; whether it should be so for the remainder of the term, depended on him who was entitled to the estate; should he receive the rent, after he came of age, it would be a recognition of the lease and he shall be bound by it. *Plow.*418. From the authority and interest which the policy of the law hath invested guardians with, a guardian may do several acts which will bind the infant, such *535as making leases. “ And the infant, when he comes of age, may, by acceptance of rent or *other act,*if he thinks proper, make such leases good and unavoidable.” 2 *Bac. Abr.*682, 683.

As to the lease itself. There was a special provision that the lessees might sow certain fields with rye *or*oats ; they chose the latter, and although, by the terms of the lease, he was to give possession of the farm to the guardian on the 1st day of *April*1815, common sense would forbid us to suppose, for a moment, that this surrender of possession of the farm included the fields on which his crop was growing or to grow, of these he held a virtual possession until this crop was harvested; and whether he worked in perfecting the intention of the lessor as well as his own, agreeably to the manifest meaning of the lease, before or after the 1st of *April*and before he had delivered possession of said fields, ought not nor could it change the situation of the parties. One had, for a valuable consideration, leased to the tenants those fields for his benefit, and he was entitled to it. The landlord would neither gain nor lose by the circumstance of the tenants not having fully Completed putting in their crop until after the day they were to deliver possession of the rest of the farm. Thus thinking, I am of opinion that the *postea*should be delivered to the plaintiffs.

(a)

*State vs. Cheeseman, ante 445. Ten Brook vs. McColm, 7 Hal. 97. Matter of Van Houten, 2 Gr. Ch. 230.*

(b)

*Snook vs. Sutton, 5 Hal. 133. Williams vs. Mabee, 3 Hal. Ch. 500. Farley vs. Woodburn, 2 Stock. 96. Porch vs. Fries, 3 C. E. Gr. 204.*See *Antonidas vs. Walling, 3 Gr. Ch. 42. Todd vs. Jackson, 2 Dutch. 526. Rockwell vs. Morgan, 2 Beas. 384. Ownes vs. Ownes, 8 C. E. Gr. 60.*

(a)

*Debow vs. Colfax, 5 Hal. 128. Howell vs. Schenck, 4 Zab. 89. Smith vs. Clayton, 5 Dutch. 357.*See *The Society &c. vs. Haight, Sax. 393. Hendrickson vs. Ivins, Saw. 563.*