not rent or lease lands or tenements during the term of said lease to any other person, without first obtaining the consent of the landlord, his agent, or attorney." Under the provisions of this statute a sublease by a tenant without his landlord's consent is void. Gulf, C. & S. F. R. Co. v. Settegast (1891) 79 Tex. 256, 15 S. W. 228; Matthews v. Whitaker (1893) Tex. Civ. App. —, 23 S. W. 538; Forrest v. Durnell (1894) 86 Tex. 647, 26 S. W. 481; Moser v. Tucker (1894) 87 Tex. 94, 26 S. W. 1044, 1105; Gartrell v. State (1901) Tex. Crim. Rep. 61 S. W. 487; Rose v. Riddle (1887) 3 Tex. App. Civ. Cas. (Willson) 365; Slaughter v. Coke County (1904) 34 Tex. Civ. App. 598, 79 S. W. 863; Waggoner v. Snody (1904) 36 Tex. Civ. App. 514, 82 S. W. 355, reversed on other grounds in (1905) 98 Tex. 512, 85 S. W. 1134; Hudgins v. Bowes (1908) Tex. Civ. App., 110 S. W. 178; Birchfield v. Bourland (1916) Tex. Civ. App. 187 S. W. 422. In Hudgins v. Bowes (1908) Tex. Civ. App. 110 S. W. 178, it was said: "The law in this state prohibits the subletting of leased premises without first obtaining the consent of the landlord. Rev. Stat. 1895, art. 3250. A subletting is where the lessee demises the whole or a part of the premises for a portion of the unexpired term. 18 Am. & Eng. Enc. Law, 2d ed. 658.

A subtenant is one who leases all or a part of rented premises from the original lessee for a term less than that held by the latter. Forrest v. Durnell (1894) 86 Tex. 649, 26 S. W. 481; Gulf, C. & S. F. R. Co. v. Settegast (1891) 79 Tex. 262, 15 S. W. 228. The renting by the lessee Bowes of two rooms of the premises demised to him by appellant was such a subletting as is prohibited by article 3250 of the Revised Statutes of 1895. The families of the lessee Bowes and subtenant Mock are separate and distinct. The tenant Bowes having sublet a part of the demised premises without the consent of his landlord, his lease was thereby forfeited." The provisions of the Texas statute have been held to include an assignment as well as a subletting. Rose v. Riddle (1887) 3

Tex. App. Civ. Cas. (Willson) 365; Gulf, C. & S. F. R. Co. v. Settegast (1891) 79 Tex. 256, 15 S. W. 228; Matthews v. Whitaker (1893) Tex. Civ. App., 23 S. W. 538; Slaughter v. Coke County (1904) 34 Tex. Civ. App. 598, 79 S. W. 863. Thus, in Gulf, C. & S. F. R. Co. v. Settegast (1891) 79 Tex. 256, 15 S. W. 228, the court, answering the contention that an assignment was not included in the terms of the statute, said: "They submit that the contract between the two railway companies was an assignment, and that as such it was not prohibited by our statute. In so far as they claim that the contract was an assignment, this ground is well taken. When the lessee conveys his entire term in the whole or a part of the demised premises, it is an assignment of the lease; but when he lets the premises for a less time than the period of his unexpired term, it is an underlease. But we do not concur in the proposition that the statute does not apply to an assignment. It reads as follows: "If lands or tenements are rented by the landlord to any person or persons, such person or persons renting said lands or tenements shall not rent or lease said lands or tenements during the term of said lease to any other person, without first obtaining the consent of the landlord, his agent, or attorney.' Rev. Stat. art. 3122. The language employed in this article leads us to the conclusion that the person who framed it did not have in mind the technical distinction between an assignment and an underlease, and that it was not the intention to prohibit the one and to allow the other. Both are equally within the evil which was sought to be remedied; and while an assignment does not come strictly within the letter it is within the spirit of the statute." So, in Forrest v. Durnell (1894) 86 Tex. 647, 26 S. W. 481, it was said: "This statute has application to sublettings as well as assignments by lessees, and was doubtless enacted to secure to the owners of lands the selection of persons to occupy and care for them, as well as to secure them the right to have none

occupy their lands whose ability or willingness to pay the rents contracted for was not satisfactory. Under the statute, persons renting lands or tenements stand as would they, in the absence of such a statute, under contracts containing covenants against sublettings or assignments; and on violation of the statute, the rights and remedies of parties are the same as would they be under such covenants, for under the statute they are implied."

d. Lease on shares.

While, as a general rule, the power of assignment or subletting is incident to the estate of a lessee of real property, unless it is restrained by the terms of the lease, a lease of land on shares, including the use of buildings, farm implements, stock, and other personal property, is regarded as a personal contract, and is not assignable or subject to sublease without the consent of the lessor, for the reason that the amount to be received by the lessor and the care of the property depend on the character, industry, and skill of the lessee. Randall v. Chubb (1881) 46 Mich. 311, 41 Am. Rep. 165, 9 N. W. 429; Lewis v. Sheldon (1894) 103 Mich. 102, 61 N. W. 269; Meyer v. Livesley (1904) 45 Or. 487, 106 Am. St. Rep. 667, 78 Pac. 670; Myer v. Roberts (1907) 50 Or. 87, 12 L.R.A. (N.S.) 194, 126 Am. St. Rep. 733, 89 Pac. 1051, 15 Ann. Cas. 1031.

In Randall v. Chubb (Mich.) supra, the court said: "The very nature and character of the lease or agreement shows that it was a personal one to the defendant, and could not be assigned by him to a third party without the consent of his lessor. The rent or share which the latter would receive must depend very much upon the character of the lessee, and the latter could not place a party in possession of the premises, who might not be a good husbandman, and who might not be able to carry on the farm operations in a good, careful, and proper manner. Under such a lease the landlord has a right to choose his tenant, and he may be willing to lease upon shares to one man, and yet be wholly unwilling to

let another have possession upon any terms. So with reference to the use of his farm implements, one might be a careful, prudent man, who would take good care of them, while another, more reckless, would not, by the owner, be permitted to use them upon any terms. The attempt to assign this lease and put another in possession thereunder worked a forfeiture thereof, and enabled the lessor to take immediate steps to regain possession."

The same rule was applied in Nassau Hotel Co. v. Barnett & B. Corp. (1914) 162 App. Div. 381, 147 N. Y. Supp. 283, affirmed in (1914) 212 N. Y. 568, 106 N. E. 1036, to the attempted assignment of a lease of a hotel. It appeared in this case that the rent was to consist of percentage of the gross receipts, and that one of the motives actuating the landlord in making the lease was the fact that the lessee was an experienced hotel man, and that he relied on this experience to produce a fair rental. Holding that under the circumstances the lessee could not assign the lease, the court said: "I am clearly of the opinion that the agreement in question was personal to Barnett & Barse, and could not be assigned by them without the plaintiff's consent. By its terms the plaintiff not only intrusted them with the care and management of the hotel and its furnishings,-valued, according to the allegations of the complaint, at more than $1,000,000,--but agreed to accept as rental or compensation a percentage of the gross receipts. Obviously, the receipts depended to a large extent upon the management, and the care of the property upon the personal character and responsibility of the persons in possession. When the whole agreement is read, it is apparent that the plaintiff relied, in making it, upon the personal covenants of Barnett & Barse. They were financially responsible. As already said, Barnett had had a long and successful experience in managing hotels, which was undoubtedly an inducing cause for plaintiff's making the agreement in question, and for personally obligating them to carry out its terms." It was

further held that the fact that the lease read to "the lessees and their assigns" did not alter the case, the court saying on this point: "It is suggested that, because there is a clause in the agreement to the effect that it should 'inure to the benefit of and bind the respective parties hereto, their personal representatives and assigns,' that Barnett & Barse had a right to assign it to the corporation. But the intention of the parties is to be gathered not from one clause, but from the entire instrument (People v. Gluck (1907) 188 N. Y. 167, 80 N. E. 1022; Heryford v. Davis (1879) 102 U. S. 235, 26 L. ed. 160); and when it was thus read it clearly appears that Barnett & Barse were to personally carry out the terms of the agreement, and did not have a right to assign it. This follows from the language used, which shows that a personal trust or confidence was reposed by the plaintiff in Barnett & Barse when the agreement was made."

But where the original lease runs to the lessee and his assigns, it has been held that a farm lease is assignable. West v. Backus (1920) 97 Or. 116, 189 Pac. 645.

On the other hand, it has been held that the lessee of lands on shares for the term of one year, after the crop was produced, and before it was gathered, might assign his lease or sell his share of the crop, unless prohibited by the terms of the lease or contract, and that the assignment or sale would carry to the assignee or purchaser any option as to the terms of the division, or manner of gathering the crop, that the lessee would have had under the terms of the lease. Dworak v. Graves (1884) 16 Neb. 706, 21 N. W. 440. To the same effect, see Yates v. Kinney (1886) 19 Neb. 275, 27 N. W. 132.

In Dworak v. Graves (Neb.) supra, the court said: "I have come to the conclusion that the law is quite clear that while the landlord has the right to bind the tenant or cropper not to sell or sublet his lease, or the crop while growing or standing on the premises, without the consent of the lessor, that, without such term or stipulation in the lease or contract, the tenant would have the right to sublet

the land or sell his interest in the crop at any time; but such sale would by no means release him from the payment of rent or the obligation to keep and perform any and all covenants contained in such lease. There may be certain kinds of property, such as mills, machinery, propagating gardens, and the like, to properly manage which requires scientific and technical knowledge, a lease of which might be held to imply special confidence on the part of the lessor, in the science or special knowledge of the lessee, and hence not to imply the right to sublet or sell out on his part; but even in such cases the lessor might well be held to guard his interest by a proper provision in his contract." It ap

peared from the facts in that case, however, that the crop had been made, though not harvested, before the sublease and sale were executed, which fact the court noticed in its opinion, saying that, under the circumstances, the amount to be received by the owner of the land depended in no degree on the personal skill or science of the lessee.

In Morris v. Iden (1913) 23 Cal. App. 388, 138 Pac. 120, it appeared that by an agreement that one of the parties thereto was to care for the stock and run the dairy on a farm, for which he was to receive one third of the insurance, and the owner was to furnish certain foodstuffs, and it was provided that "the life of this lease is three years from date," and further that if the occupant failed to look after the stock to the satisfaction of the owner it should be considered a "forfeiture" on his part. This the court held to be a lease, and not a contract of employment of personal services, and, without commenting on the assignability of a lease on shares, held the lessee had the right to assign the same if it contained no stipulation against assignment.

In Tipton v. Martzell (1899) 21 Wash. 273, 75 Am. St. Rep. 838, 57 Pac. 806, wherein the question at issue was whether a growing crop was subject to levy under an execution against a tenant, the court stated the rule as to the assignability of such a lease as

follows: "In the case at bar there was an existing contract between the landlord and the respondents that they would properly take care of the growing grain, and harvest and deliver one third of the product to the landlord. In a contract of this nature the landlord depends on the character and skill of the lessee, and it would seem to be personal, and not assignable."

But where it appeared that the crop had been harvested and marketed, it has been held that the lease was assignable. Cupples v. Level (1909) 54 Wash. 299, 23 L.R.A. (N.S.) 519, 103 Pac. 430, wherein it was said: "The respondents contend that no rights were acquired by the assignment to Sadie Wareham, it not appearing that it was made with the lessor's consent. This position is untenable for three reasons: (1) Because there is no nonassignment clause in the lease; (2) at the time of the trial the crop had been harvested and marketed; (3) if the lessor had an implied right of re-entry in case of assignment without his consent, the right was lost by nonaction. This case is therefore distinguishable from Tipton v. Martzell (Wash.) supra."

III. Tenancy at will,

A tenancy at will, being determinable at any time, cannot be assigned or sublet by the tenant to another. Alabama. Hunnicutt v. Head (1912) 179 Ala. 567, 60 So. 831. California. McLeran v. Benton (1887) 73 Cal. 329, 2 Am. St. Rep. 814, 14 Pac. 879.

Tennessee. Doak V. Donelson (1829) 2 Yerg. 249, 24 Am. Dec. 485.

England. Pinhorn V. Souster (1853) 8 Exch. 763, 155 Eng. Reprint, 1560, 22 L. J. Exch. N. S. 266, 16 Jur. 1001, 1 Week. Rep. 336.

"As a tenancy at will is determinable at any time, the tenant has no certain and indefeasible estate which he can assign or grant to any other person." Cunningham v. Holton (Me.) supra.

In Reckhow v. Schanck (N. Y.) supra, the rule governing the rights of a tenant at will was stated as follows: "A tenant at will is disqualified from granting a lease available against anyone but himself, for the demise would amount to a termination of the will, and it would be optional with the landlord to regard the entry of the lessee of the tenant at will as a disseisin. 1 Platt, Leases, 104. The same rule holds as to a tenant by sufferance. 1 Platt, Leases, 122. The yielding of the possession of the premises terminates the original tenancy, and a new tenancy at the will of the owner cannot be created except by his or her assent. Every lease at will is at the will of both parties, and a tenant at will has no certain and indefeasible estate-nothing that can be granted by him to a third person. If a tenant at will assigns over his estate to another who enters on the land, he is a disseisor, and the landlord may have an action of trespass against him. 1 Greenleaf's Cruise, Real Prop, 278; Campbell v. Proctor (1829) 6 Me. 12. A tenancy by sufferance, existing only by the laches of the owner, cannot give the occupant an estate or interest capable of transmission to another."

If a tenant at will assigns over his estate to another, who enters on the land, he is a disseisor, and the landlord may have an action of trespass against him. Cunningham v. Holton (Me.); Cooper v. Adams (Mass.);