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such length of time, after the expiration of the term, as to authorize the implication of assent on the part of the landlord to such continuance. And, in one case, where a landlord waited three months and twelve days before instituting proceedings to remove the tenant, it was held, that he was not chargeable with laches, especially as it appeared that he had attempted to obtain possession without recourse to coercive measures. (Rowan v. Lytle, 11 Wend. R. 616.) If the tenant holds over at all after the end of the term, he is regarded as a tenant at sufferance; and, if the landlord permits the tenancy at sufferance to continue for such length of time as to imply assent, the tenant becomes a tenant from year to year, and cannot be removed except upon service of notice to quit.
And where a party has put another into possession, with a view to future tenancy or purchase, or under circumstances of a similar nature, although he may have done no act acknowledging a regular tenancy, he cannot afterward eject him without a demand of possession, unless some wrongful act has been done by such party determining his lawful possession. Very many cases may be cited as illustrating and establishing this principle; but the rule is so obviously equitable and just, that no citations would seem to be necessary. (But vide Doe v. Somerville, 6 Barn. & Cres. R. 126. Doe v. Carter, 1 Ryan & Moody's R. 237. Doe v. Boulton, 6 Maule & Selwyn's R. 148–50. Right v. Beard, 13 East's R. 210. Doe v. Stewart, 2 Esp. R. 716.) But where the vendor of a term, after payment of part of the purchase-money, let the purchaser into possession, upon an agreement that such purchaser should have possession of the premises until a given day, paying the reserved rent in the meanwhile, and that, if he should not pay the residue of the purchase-money on that day, he should forfeit the installments already paid, and not be entitled to an assignment of the lease; and the purchaser failed to complete the purchase at the appointed day; the court ruled, that an ejectment might be maintained without even a demand of possession, for the reason that the purchaser had, by his own act, determined his interest in the premises. (Doe v. Sayer, 3 Camp. R. 8. Doe v. Lawder, 1 Stark. R. 308.) And where a man obtained possession of a house without the landlord's privity, and afterward entered into negotiation with him for a lease, the landlord was permitted to recover the premises in ejectment without demand or notice to
quit. (Doe v.
(Doe v. Quigley, 2 Camp. R. 505.) So, where, upon an agreement for a sale to be completed by a certain day, the intended purchaser agreed with A to let the premises to him, to commence from that day, and A was let into possession prior to that day by permission of the intended seller, and the party failed to complete his purchase, A was held not entitled to a demand of possession before ejectment brought, his possession being only the
possession of that party by anticipation. (Doe v. Boulton, 6 Maule & Selw. R. 148.)
In all cases where tenancies from year to year are implied from the acts of the parties, or the acquiescence of the landlord, it is competent to produce evidence to rebut the presumption that such was the intention of the parties; and it is peculiarly the province of the jury to decide, under all the circumstances of such case, whether the tenancy exists or not. (Vide Roe v. Prideaux, 10 East's R. 158. Jackson v. Bryan, 1 Johns. R. 322, 326, 327.) If the tenant set his landlord at defiance, and do any act disclaiming to hold of him as tenant, this dispenses with the necessity of a notice to quit; for in such case the landlord may treat the tenant as a trespasser. (Jackson v. Wheeler, 6 Johns. R. 272. Bates v. Austin, 2 A. K. Marsh. R. 270. Ross v. Garrison, 1 Dana's R. 35. Tuttle v. Reynolds, 1 Vt. R. 80.) For example, should the tenant from year to year claim the premises described as his own, under a title adverse to that of his landlord, or attorn to some other person, the landlord may consider his tenant as a wrong.doer, and bring ejectment and regain the possession of the premises. The acts of the tenant in such case are conclusive upon him, and the relation of landlord and tenant is thereby dissolved. (Wallison v. Watkins, 3 Peters' R. 43. Vide also Currier v. Earl, 1 Shepley's R. 216. Greene v. Munson, 9 Vt. R. 37. North v. Barnum, 10 ib. 220. Hall v. Dewey, Ib. 593. Tillotson v. Doe, 5 Ala. R. 407. Farroo v. Edmondson, 4 B. Monroe's R. 605. Wilson v. Smith, 5 Yerger's R. 379. Montgomery v. Craig, 3 Dana's R. 101. Hockenburg v. Snyder, 2 Watts & Serg. R. 240. Jackson v. Whitbeck, 3 Johns. R. 422.)
In a late case decided in the English common bench, it appeared that certain parish lands had been let to the laboring inhabitants at a forehand rent of four shillings per acre; the lands having been afterward inclosed, the church wardens and overseers, for the time, increased the rent to twelve shillings per acre, for the purpose of raising a fund to pay the expenses of the inclosure. The tenants, having paid this increased rent for many years, conceiving that the inclosure expenses had been paid off, insisted that they were entitled to hold the land at the original rent of four shillings per acre, and refused to pay the twelve shillings; the court held, that this did not amount to a disclaimer of the landlords' title, so as to enable them to eject the tenants without notice, and that a tenancy from year to year might be implied from the circumstances under which the parties had held. (Hunt V. Allgood, 10 J. Scott's N. S. R. 253.)
Where a landlord applied to his tenant for the payment of rent, and the tenant replied to the demand, "you are not my landlord,” and, on the landlord then demanding possession of the demised premises, refused to give up possession, this the court held to amount to a disclaimer, and entitled the landlord to his action of ejectment. (Doe v. Long, 9 Carr. & Payne's R. 773.) So also, to a demand of rent by an agent of the landlord, the tenant replied that his connection with the landlord as tenant had ceased for many years, has been held sufficient evidence of an antecedent disclaimer, and entitled the landlord to his action for the premises. (Doe v. Gruble, 10 Barn. & Cres. R. 816.) But a refusal to pay rent to a devisee under a contested will, accompanied with a declaration that he, the tenant, was ready to pay the rent to any person who was entitled to receive it, was very properly held not to be a disavowal sufficient to dispense with the necessity of a regular notice to quit. (Doe v. Pasquali, Peake's
Where, however, a person held under a tenant for life, and in reply to a letter from the heir of the tenant for life, after bis death, demanding rent, stated that he held the premises as the tenant of another person, and that he never considered himself as the tenant of the lessor of the plaintiff, avowing himself ready and willing to pay rent to the person who should be proved entitled to it, without disputing the pedigree of the lessor of the plaintiff; this was held a disclaimer of the title of the lessor of the plaintiff. (Doe v. Frowd, 4 Bing. R. 557.)
Where a party conveyed to another a parcel of land, and took a mortgage from the purchaser on the same land, to secure the purchase-money; and the grantee then consented to sell the land to a third person, who took possession; afterward the original grantor and grantee agreed to cancel their respective deeds, which was accordingly done, and the deed for the land thus canceled was returned to the grantor, and the mortgage thus canceled was also returned to the grantee. In ejectment brought by persons claiming under a conveyance from such original grantor, against the vendee of such original grantee, the court held, that the action could be maintained, and that the defendant, not being a tenant or mortgagee, was not entitled to a previous notice to quit. (Jackson v. Chase, 2 Johns. R. 84.)
So, also, it has been held, that in an action of ejectment brought by a mortgagee against a purchaser of the interest of the mortgagor, or against a third person, between whom and the mortgagor there is no privity of contract or estate, a previous notice to quit is not necessary. (Jackson v. Foster, 4 Johns. R. 215. Jackson v. Stackhouse, 1 Cow. R. 122. And vide Thunder v. Belcher, 3 East's R. 449.)
Where a landlord, by his attorney, executed a lease to his tenant for three years, and after the expiration of the term, the tenant applied to the attorney of the landlord to know if he was authorized by the landlord to enter into a new agreement, who replied that he was not, but said that such tenant might remain in possession of the premises until he heard from the landlord; the court held that the tenant, after the expiration of the original term, was a mere tenant at sufferance, and was not entitled to notice to quit, previous to an action of ejectment. (Jackson v. Parkhurst, 5 Johns. R. 128.)
Where a parol agreement provided for the renting of premises for one month from the first of August, 1866, and for each successive month thereafter, until the landlord should want the premises for his own use, whereupon the tenancy should expire, the court held that the usual notice was not required to terminate the tenancy. It would be sufficient, undoubtedly, in such a case, for the landlord to inform the tenant, within a reasonable time before the expiration of any month, that he wanted the premises for his own
Such a tenancy can hardly be called a tenancy at will or by sufferance, created by the tenant's holding over, or otherwise. It is an agreement for an indefinite number of months, subject to be terminated by a notice from the landlord that he wants the premises. (The People v. Schackno, 48 Barb. R. 551.)
A tenant at will is considered as holding from year to year only for the purpose of a notice to quit, as has been before remarked;
but it is decided that he has no right to such notice after he has determined the tenancy by an act of voluntary waste. (Phillips v. Covert, 7 Johns. R. 1. Jackson v. Bradt, 2 Caines' R. 169. But vide Jackson v. Wilsey, 9 Johns. R. 267.)
Where a lease was assigned, and a bond executed at the same time, which stated that the assignment was made to secure a debt due to the assignee, and an agreement to re-assign the lease and premises, on payment of the money with interest, it was held to be a mortgage, and that the mortgagor was entitled to a notice to quit, before bringing an action of ejectment against him. ' (Jackson v. Green, 4 Johns. R. 186.)
When a tenant from year to year dies, his interest in the land vests in his personal representatives, who will continue to hold the premises upon the same terms as the original tenant, and be entitled to the same notice to quit. (Doe v. Porter, 3 Term R. 13. Parker v. Constable, 3 Wils. R. 25.) If, however, by the terms of the agreement, no interest vests in the representatives, no notice to quit will be necessary. (Doe v Smith, 6 East's R. 530.)
In like manner, the situation of a tenant from year to year remains unaltered, notwithstanding the death of the landlord, and he will be entitled to his regular notice to quit, whether the lands descend to the heir, even though the heir be a minor, or pass to the personal representatives or devisee of the deceased. (Maddon v. White, 2 Term R. 159.)
Such are some of the rules in respect to tenancies from year to year, and the notice by which they are terminated. More particulars will be given in regard to the notice to quit, and the parties thereto, in a subsequent chapter.
THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT –
THE PERSONS BY WHOM AND TO WHOM THE NOTICE TO QUIT IS TO BE GIVEN RULES RESPECTING NOTICES TO QUIT.
I. It may be affirmed in general terms that the notice to quit must be given by the person interested in the premises, by himself personally, or by his duly authorized agent. If by the agent, it must