Jackson ex demis. C. R. Colden and others, against Brownell, 1 Johns. 267

Thompson, J. I think the number of tenants is restricted to two ; no number beyond that will comport with the terms of the lease. The clear import of the restriction is, that there shall not be more tenants, than so that each one may have one hundred acres of land; and if so, it appears to me to result as a mathematical certainty, that 248 acres will admit of only two tenants. The given number of acres being divided by one hundred, the quotient will designate the number of tenants. It is true, that courts have always held a strict hand over conditions for defeating leases. But when parties have made express stipulations, which in my judgment will admit of but one

interpretation, not to give effect to them, would be making a new contract for parties, instead of construing that they have made for themselves. How many families or tenants, then, within the meaning of the lease, have been permitted, at the same time, to use and occupy the premises ? I think, clearly, more than two. David Hughes and William Butler resided upon the premises with their separate families, and improved separate parts of the land.

They held under Reuben and Seth Peckham, who were the assignees of the lessee, and the agreement between them, was, that Hughes .was to have half of Reuben Peckham’s part, and Butler half of Seth Peckham’s part, for one year, the Peckhams reiaining the residue; by this means the premises had at - - , . , , least, tour separate and distinct occupants, independent of Hall, who was permitted at the same time, to sow a distinct part of the land with wheat.

The compensaiion to be made to the Peckhams for the use of the land, being stipulated to be a portion of the produce raised, must have the same effect as if the rent had been reserved in money. (Woodfall 122.) The provision in the lease, was doubtless to guard against having too great a proportion of the land ploughed and sowed the same season, and to prevent the waste of timber for firewood; and in this point of view, the restriction must be considered for the benefit of husbandry.

T he manner in which the premises have been occupied, and used, is, I think» clearly against the terms of restriction contained in the lease, as well as against what must have been the meaning and intention of the parties. My opinion, therefore, is, that the nonsuit should be set aside, and a new trial granted. Livingston, J. There is nothing unreasonable in this condition, and if there were, it is not for us to disregard it on that account, the lessee having chosen to submit to it. We have only to inquire, whether it has been broken ?

The quantity ofland leased, about which there appeared to be some dispute, was admitted in the argument to be 248 acres ; for though the landlord had a right to cut wood on seventy acres, they were to be considered as among those demised, subject only to his privilege. There existed a right, then, in the lessee and his assigns to have two tenants or families on; or using, the premises, at any one time, if not three, but no more. The gravamen, or breach relied on, is, that the two Peckhams, Hall, Hughes, and Butler, making five in all, used the land at the same time. Hughes and Butler took under the.

Peckhams, who were then owners of the lease. The first had half of Retiben Peck-ham’s, and the other the same proportion of Seth Peckham’s part, the Peckhams reserving the residue to themselves, and which of course they must have used as their own. Witlx- , . . r tt 11 l r i i , . out taking any notice ol Hall, the land, during this year, was used by, at least, four tenants. It is of no importance on what terms Hughes and Butler took the land, whether on payment- of money, dr on a partition of its produce between them and the Peckhams, which is not an uncommon way of letting farms, in the country.

The only question is, whether they, were tenants, or barely servants under the Beckhams P ■Each had every character of a tenant, and not of a mere labourer- for the owner of the soil.

They took under a contract to possess for a year : they occupied the same house ; they had an interest or estate in the land; they paid rent in grain; they might bring their own cattle on, and reap what they pleasedfrom it, for their exclusive benefit, except grain, -which was to be divided ,• ■ and, what is very important, they had a right (it not appearing they were restrained by special agreement,) to the use of wood for burning, repairing, &c. and if they continued in possession, by mutual consent, afilié end of the first year, a tacit renovation of the original contract would have been implied, and they could not have been dispossessed without half a year’s notice to quit.

Very different is the condition of a person who is hired, for a few days, to plough or reap a particular field, on having part of the produce. He enjoys none of these privileges, and can .do the land no injury, except in the mere working of it, to which the original lessee and his assigns must be entitled to any extent. They might hire a hundred labourers, but could not divide the farm intoas many shares, and grant to as many persons a right to pasture cattle, to cut wood, &c. for azvhole year, as was granted to Hughes and Butler, without a palpable violation of the condition, or rendering it a nullity.

P/£y opinion, then, is, that at the time we are speaking of, there were four tenants in the use and enjoyment of those premises, the two Peckhams with Hughes and Butler; that the plaintiff was entitled on this evidence to a verdict; and that the nonsuit of course must be set aside, and a new trial had, with, costs, to abide the event. Kent, C. J. Spencer, J. and Tompkins, J. concurred. Nonsuit set aside, and a new trial granted. 1 Term, 159. Flower v. Darby.