
    Warner v. Tanner.
    T. and B. executed an instrument under seal, signed by two witnesses, and acknowledged by T. before a justice of the peace, in which, instrument it is convenanted that T. leases to B. two acres of land (described in the instrument), with the use of water in adjoining lands of T. and privilege of conducting it’in pipes “ to a cheese house to be erected on said premises, T. reserving enough water to accommodate the slock kept on the farms of T. And B. is to build a cheese house on the premises, and agrees to pay T. for the use of the premises and the privileges aforesaid,, thirty dollars per annum on the first day of October, in each year, while the premises shall be used as and for the manufacture of cheese; and when the premises shall no longer be used for such purpose, the premises, together with the privileges aforesaid, shall revert to T., said B. having the privilege of removing all buildings and fixtures put upon said premises by him.” Held, that this was a lease to B. for life, provided he continued to use the premises for the manufacture of cheese thereon and paid rents, with the right at any time to remove the buildings and fixtures placed on the premises by such lessee.
    Error to the District Court of Geauga County.
    Chester Tanner and Lucius Bartlett signed and sealed the following instrument: “ This indenture made at Chester, Geauga county, Ohio, this 1st day of February, 1861, by and between Chester Tanner of the first part, and Lucius Bartlett of the second part, witnesseth, that said Chester Tanner hath this day leased to said Lucius Bartlett'the following described premises.” Here follows the description, the premises containing two acres of land. “ And said Tanner also leases to said Bartlett the privileges of conducting the springs, and the use of the same, in pipes or otherwise, on the brook that crosses said premises, commencing at the spring at the roots of the chestnut tree, standing northerly of. the premises aforesaid, and all available springs, to a cheese house to be errected on said premises, said Tanner reserving enough water to accommodate the stock kept on the farms of said Tanner. And said Bartlett is to build a cheese house on said premises, and agrees to pay said Chester Tanner, for the use of said premises and the privileges aforesaid, the sum of thirty dollars per annum, to be paid on the first day of October, in each year, while said premises shall be used as and for manufacturing cheese; and when said premises shall no longer be used for such purpose, the premises, together with the privilege aforesaid, shall again revert to said Tanner, said Bartlett having the privilege of removing all buildings and fixtures put upon said premises by him.”
    The instrument was also subscribed by two witnesses, acknowledged by Tanner before a justice of the peace, and was delivered by Bartlett to the county recorder, who recorded it.
    Bartlett immediately entered into possession of the premises in pursuance of the instrument, erected thereon a cheese house, dwelling house and stable, and occupied the premises, conducted the business of manufacturing cheese thereon, and paid the rents regularly, from that time until his death, which occurred on December 27, 1874. The amount which he paid to Tanner on October 26, 1874, was in full of the rent to February 1, 1875.
    On January 22, 1875, Chester Tanner requested Warner, administrator of Bartlett, to remove the buildings and fixtures from the premises, and informed him that the lease was terminated from and after the expiration of the time for which rent had been paid.
    In February, 1875, Chester Tanner, with Brighton Tanner acting under his. authority, entered into possession of the premises, against the protest of Warner, administrator of Bartlett; and on February 17, 1875, Warner, as such administrator, brought suit against them in the court of common pleas of Geauga county.
    A verdict was rendered in favor of the administrator, on the issue joined, for $3,500, from which sum the administrator, on suggestion of the court, remitted $1,000, and judgment was rendered for $2,500.
    All the evidence is set forth in a bill of exceptions. There was no evidence tending to show that the value of the buildings, fixtures and personal property on the premises exceeded $1,000. It appears that the verdict was found principally on¡ the value of the lease, which the administrator claims the Tamners converted to their own use.
    
      The district court reversed the judgment, and this petition in error was filed by the administrator to reverse the judgment of reversal.
    
      Hurfee da Stephenson, for plaintiff in error.
    
      Tinher da Atvord, for defendants in error.
   Okey, O. J.

In the court of common pleas, the jury was charged, that the instrument executed by the parties was not a lease at will, nor for years, nor of perpetual duration; “ that said lease is not real property ; ” that it was a lease which continued and run for an indefinite and unlimited period, and so long as the lessee, or his assigns or personal representatives, should use the property covered by said lease for the purpose of manufacturing cheese thereonthat upon the death of 'Bartlett, the interest passed to his administrator and not his heir ; and that the administrator could maintain a suit against the Tanners in the nature of an action of trover for the conversion of the fixtures and the lease. To state such a position is to refute it. The only instance of a similar action which I remember, was met in Railroad Co. v. Robbins, 35 Ohio St. 531.

Leases may be at will, for years, for life, or of perpetual duration. Foltz v. Huntley, 7 Wend. 210; Taylor’s Land. & T. § 72. Indeed, they may be made for any period which will not exceed the interest of the lessor in the premises. And whatever the term, it may be subject to a condition, which is a qualification annexed to the estate by the grantor (Sperry v. Pond, 5 Ohio, 387; s. c., 24 Am. Dec. 296), or lessor (Foltz v. Huntley, supra), whereby the estate or term granted may, among other things, be defeated or terminated.

In this case the question as to the rights and interest which Bartlett acquired under the instrument, is one of construction. The fact that he was required to and did place upon the premises valuable structures, which he could only remove when the premises were no longer used for the manufacture of cheese thereon, satisfies us that this was not a lease at will nor a lease from year to year. On the other hand, the instrument contains no words indicating an intention to grant a fee in the premises ; and yet the construction which the court of common pleas placed upon it would render it, in effect, precisely the same as though the grant had been to Bartlett, his heirs and assigns. It would endure, according to that construction, until the premises were no longer used for the manufacture of cheese, or the lessee ceased to pay rent, precisely as in the case of a grant in fee with such condition. Having regard to the whole instrument, and not overlooking the fact that the right to remove the fixtures is, in terms, limited to Bartlett, we are satisfied that a lease for life was granted to him, subject to be defeated when the premises were no longer used for the manufacture of cheese thereon, or by the non-payment of rent. Hurd v. Cushing, 7 Pick. 169; Sperry v. Pond, supra; Foltz v. Huntley, supra; Bowles’ case, Tudor’s Lead. Cas. Real Prop. (2 ed.) 27-100 ; 4 Wait’s Act. & Def. 502. Indeed, it is well settled that if one grant an estate to a man and woman during coverture, or as long as the grantee or lessee shall dwell in such a house or use the premises for a specified purpose, as, for instance, the manufacture of cheese thereon, or for any like uncertain time, the grantee or lessee has in judgment of law a freehold. 1 Williams on Ex. (6 Am. ed.) 749; Taylor’s L. & T. § 52; Beeson, app., Burton, res., 12 C. B. (74 E. C. L.) 647 ; and see cases cited supra. The cases relied on by the plaintiff in error (White v. Fuller, 38 Vt. 194; Lewis v. Effinger, 30 Pa. St. 281; Cook v. Bisbee, 18 Pick. 527), are in no respect inconsistent with the view here stated; and the statutes and decisions relating to permanent leasehold estates in this state, which áre also cited and relied upon by the plaintiff in error, shed little light on the case.

The administrator of Bartlett had no right of action, except with respect to property merely personal, which may have remained on the premises when this suit was brought; nor had he a right of action with respect to such personal property, unless the Tanners converted it to their own use. Leases of land of a chattel quality are chattels real, and go to the administrator ; in other words, all interests for a definite space, measured by years, months or days, are deemed chattel interests, and, independently of statutory provision (Northern Bank v. Roosa, 13 Ohio, 334; 30 Ohio St. 285), go to the administrator; but he has no interest in a lease, like this, for a freehold term. See authorities cited in the last paragraph.

Judgment affirmed.  