Obrázky stránek
[blocks in formation]

$ 31. Tenants At Will.-A tenant at will is one who holds. lands at the will of the owner. The tenancy is subject to the will of either party, but as a rule a demand for possession or a notice to quit is necessary before the action of ejectment can be sustained. The notice is generally regulated by statute.

Tenancies at will may be created without writing, and are not within the provisions of the act regulating conveyances. A lease made by an agent in his own name is void, and the tenant entering under such a lease is a tenant at will, and as such is entitled to a notice to quit before an action of ejectment will lie against him. Murray v. Armstrong, 11 Mo. 209.

A person in possession of land with the consent of the owner under a contract of purchase which is not completed, is a mere tenant at will, and such tenancy determines by the death of the lessor. Manchester v. Dodridge, 3 Ind. 300.

§ 32. Tenancy at Will, When It Arises.-This kind of tenancy arises when the party is in possession of the premises with the privity and consent of the owner, no express tenancy having been created, and no act having been done by the owner impliedly acknowledging such party as his tenant; as where he has been let into possession pending a treaty for a purchase or a lease, or under a lease or agreement for a lease, which is void, or as the minister of a dissenting congregation, or when, having been tenant for a term which has expired, he continues in possession, negotiating for a new one. In all these cases and the like, it is held that the party, being lawfully in possession, can not be ejected until such possession is determined either by demand of possession, breaking off the treaty, or otherwise, and the party is called a tenant at will; but in any of these cases, if the landlord receives rent while the party is so in possession, or does any other act amounting to an acknowledgment of a subsisting tenancy, a tenancy from year to year will be created."

1 Coomler v. Hefner, 86 Ind. 108; 47: Tyler on Ejectment, 214; Adams Larned v. Hudson, 60 N. Y. 102; Bennett v. Robinson, 27 Mich. 26; Brown v. Kayser, 60 Wis. 1; Munson v. Plumler, 59 Iowa, 120; Anderson v. Taylor, 56 Calif. 131; Wilson v. Prescott, 62 Me. 115; Shipman v. Mitchell, 64 Tex. 174; Clark v. Wheelock, 99 Mass. 14; Sanford v. Johnson, 24 Minn. 172; Hazeltine v. Colburn, 31 N. H. 486.

2 Chamberlain v. Pratt, 33 N. Y.

on Ejectment, 107; Roe v. Street, 4 Nev. & Man. 42; Daniels v. Davidson, 16 Ves. Jr. 252; Doe v. Pullen, 2 Bing. N. C. 749; Doe v. Bell, 5 Term 471; Clayton v. Blakey, 8 Ib. 3; Thunder v. Belcher, 3 East, 449; Doe v. Browne, Ib. 165; Doe v. Price, 9 Bing. 356; Doe v. Turner, 7 Mees. & W. 226; 9 Ib. 643; Doe v. Thomson, 1 Nev. & P. 215.

The seizin of lands belonging to the Indian tribes, is in the sovereign, and the Indians are mere occupants. A purchaser from them can acquire only the Indian title; and they may resume it, and make a different


of it. An occupant under an Indian grant, the Indians having alterward resumed the title, and granted it to the crown, was held to be a tenant at will of the king, whose occupancy no length of time could ripen into a title by adverse possession. Jackson v. Porter, 1 Paine (N. Y.), 448; Cocke's Lessee v. Dotson, 1 Tenn. 169; Johnson v. M'Intosh, 8 Wheat. (U. S.) 571; Fletcher v. Peck, 6 Cranch (U.S.) 142; Jackson v. Hudson, 3 Johns. (N. Y.) 384.

§3. The Necessity of Notice The Law Stated by Washburn. The necessity of giving notice in order to determine a tenancy at will, which has become so general, has reduced the class of estates held strictly at will, to comparatively few in number. They still exist in certain cases, and form a second division of this subject. They are divided into two classes: such as are made so by express agreement of the parties, and such as are created by implication of law. Because of the uncertainty of the rule requiring reasonable notice in order to determine a parol lease, and from the circumstance that rent was generally measured by the year, courts early adopted a rule, which has been extensively followed in this country, that a general tenancy by a parol lease, when rent is to be paid, shall be considered as a lease for a year, which can only be determined by a notice for the time of at least six months, terminating at the expiration of the year. And if the tenant is allowed to hold without such notice, into a second year, it will be considered as a holding for such second year, and so on. So that the common mode of designating such estates by farol, is an estate from year to year, to continue till either party gives the other the requisite notice to determine it.'

At common law, a tenancy at will would be terminated by a sale of the premises by the owner; but in Michigan it is held that a notice to quit must be served notwithstanding a sale. Hogsett v. Ellis, 17 Mich. 351.

In order to terminate a lease at will by a notice under the statute, where the rent is payable monthly, a month's notice must be given, which must either specify the exact day on which the next month expires, or state that the tenancy will be terminated in one month from the next rent day. Sanford v. Harvey, 11 Cush. (Mass.) 93; Granger v. Brown, 11 Cush. (Mass.) 191.

11 Wash. on Real Prop. 510, § 1, 159; Ridgeley v. Stillwell, 28 Mo. sub. 22, and pp. 519, 520, § 2, sub. 1; 400; Patton v. Axley, 4 Jones L. see also Lesley v. Randolph, 4 Rawle (N. C.) 440.

(Pa.) 123; Right v. Darby, 1 Term R.



A tenant of a house, at a fixed compensation for his labor by the month, and house furnished him, determines his tenancy by failing to work, and is not entitled to notice to quit. The right of occupancy is held to be incident to the contract of hire, and ceases whenever, by mutual consent, or by the fault of the tenant, the services themselves cease. From that time the tenant can no more claim the right to occupy the house, than he could claim any other portion of his hire; and he would be in no better condition than a strict tenant at will, who has, by his own act, terminated the tenancy, and would, at most, be entitled only to a reasonable time for removing from the house. McGee v. Gibson, 1 B. Mon. (Ky.) 105.

Where a notice to quit and deliver up the possession in seven days from the service thereof of premises held under a tenancy at will, with weekly payments of rent, is served by leaving the same at the tenant's house upon a rent day, he being absent at the time and not returning for some days, it was held, the tenancy will not thereby be determined upon the next rent day. Hultain v. Munigle, 6 Allen (Mass.), 220.

When premises are let at a fixed monthly rent, with the understanding that the tenant shall give up possession whenever the landlord may require them for his own use, the letting creates a tenancy at will which can only be terminated by a full month's notice to quit at the end of one of the regular monthly periods. Woodrow v. Michael, 13 Mich. 187.

The estate of a tenant at will, who occupies under an agreement to pay rent monthly, on the first day of each month, may be determined by a written notice, given on the first day of a month, and directing him to quit and deliver up the premises on the first day of the next month, although the monthly terms began on the first day of each month. Walker v. Sharpe, 14 Allen (Mass.), 43.

§ 34. Tenants from Year to Year.-A tenant from year to year is one who holds lands or tenements under a demise from another in which no certain time is mentioned, but an annual rent has been reserved. The tenancy is a general letting without limitation as to time,' so when a person is let into possession as a tenant without any agreement as to time, the presumption is that he is a tenant from year to year; but this presumption may be overcome by proof.

The difference between a tenant from year to year and a tenant for years is rather a distinction in words than in substance.'

'Ridgely v. Stillwell, 25 Mo. 570; Gartside v. Outley, 58 Ill. 210; Snow v. Clark, 80 Ind. 57; Judd v. Fairs, 53 Mich. 518; Young v. Young, 36 Me. 133; Bell v. Norris, 79 Ky. 48; Leavitt v. Leavitt, 74 N. H. 329; Jackson v. Wilsey, 9 Johns. (N. Y.) 267; Dunn v. Rothermel, 112 Pa. St. 272; Beowdett v. Pierce, 50 Vt. 212; Garrett v. Clark, 5 Oreg. 464.

Sheldon v. Davy, 42 Vt. 637; Shipman v. Mitchel, 64 Tex. 174; Secor v. Pestana, 37 Ill. 525; Dubuque v. Miller, 11 Iowa, 538; Grant v. White, 42 Mo. 285.

3 Woodf. L. & T. 163; Bouvier's Law Dic., title Tenant.

In all cases of tenancies from year to year, and the like, the tenant is entitled to a reasonable notice to quit before a recovery can be had in ejectment.' What is a reasonable notice in these cases is usually a question for the courts in the absence of statutory enactments."

In case of a tenancy from year to year, the tenant can not quit at pleasure, without notice, and deprive the landlord of accruing rent. Neither can the tenant in such a case be ejected without a notice to quit as at common law. Hall v. Wadsworth, 28 Vt. 410.

The defendant obtained permission of the owner of premises to build a hovel and stable a colt upon the same, the owner, by way of compensation, to have the manure. Subsequently defendant enlarged the hovel, and moved his family into it with the owner's knowledge. In an action of ejectment it was held that the defendant in occupying the hovel as a dwelling, put an end to the contract, if the plaintiff had so elected, but that by his acquiescence therein and afterward receiving the stipulated compensation, he confirmed the act. In April, the plaintiff, without stating any time, requested defendant to remove the building and vacate the premises; and on July 10th notified him to quit at once, and on July 14th brought ejectment. It was held that the occupancy had become a tenancy from year to year, and that the notice was not reasonable. Boudette v. Pierce, 50 Vt. 212. Where a tenant whose term has expired, instead of quitting the premises remains in possession, he is a wrongdoer, and may be treated as such by his landlord; and the landlord may immediately maintain an ejectment to recover the possession without giving a notice to quit. But by consent, of course, his tenancy may be continued, and if such continuance, by consent, be without any fixed limit, he becomes a tenant from year to year. The mere unbroken silence and inaction of the owner, will not, however, improve or enlarge the character of the tenant's possession. Den v. Adams, 7 Halst. (N. J.) 99.

In Vermont, in most respects the action of ejectment, as between landlord and tenant, seems to be governed by the rules of the common law. Notice to quit, in case of tenancy from year to year, must be given six calendar months before the year expires, and must point to the time when the tenant must quit, or ejectment can not be maintained. Henchett v. Whitney, 1

Vt. 311.

In Connecticut, the English rule, under which a tenant from year to year is entitled to six months' notice to quit before the landlord can bring è̟ect

1 Coomler v. Hefner, 86 Ind. 108; Thompson v. Maberly, 2 Camp. 573; Bedford v. McElherron, 2 S. & R. (Penn.) 49; Doe v. Morse, 1 B. & Ad. 365; Doe d. Miller v. Noden, 2 Esp. 530; but see Williams v. Deriar, 31 Mo. 13.

? Warner v. Hale, 65 Ill. 395; Detroit Sav. Bk. v. Bellamy, 49 Mich.

317; Dunn v. Rothermel, 112 Pa. St. 272; Stopplecamp v. Mageot, 42 Cal. 316; Doe v. Smaridge, 7 Q. B. 957; Thomas v. Wright, 9 S. & R. (Penn.) 87; Stedman v. McIntosh, 4 Ired. (N. C.) L. 291; Den v. Snowhill, 3 Zab. (N. J.) 447; Jackson v. Bryan, 1 Johns. (N. Y.) 322; see Hemphill v. Giles, C6 N. C. 512.



ment against him, has been superseded by the statute, which gives to the lessor, after thirty days' notice, a summary process, where the lessee holds over his term. Larkin v. Avery, 23 Conn. 304.

In Missouri, the possession by a party under a mere permission to occupy for an indefinite period, no rent being reserved, is not a tenancy from year to year; so that in such case three months' notice to quit is not necessary. Williams v. Deriar, 31 Mo. 13.

But if the tenan: disclaims his tenancy, denies his landlord's title, or, which is the same thing, requires him to prove those points, it is held that he can not insist on the want of notice to quit, although it should appear in the course of the trial that he was a tenant from year to year. Tuttle v. Reynolds, 1 Vt. 80; Catlin v. Washburne, 3 Vt. 25.

§ 35. Tenants in Common and Joint Tenants.--In case two or more persons are interested in the premises as tenants in common, a notice to quit given by one, on behalf of himself and co-tenants, will be valid only as far as his own share is concerned, unless he was acting at the time under the authority of the other parties. But this rule does not apply to cases where the parties are interested as joint tenants; because of the rule of law that any act of one joint tenant which is for the benefit of his co-joint tenant shall bind him, and it must be predicated upon the principle that the determination of the tenancy by such notice is for the benefit of the estate. And where such tenants in common are interested, as many of them as give notices may recover their respective shares, although the others do not join, unless, indeed, by the conditions of the tenancy, it is rendered necessary for all the parties to concur in the notice, in which case a notice given by some of the parties, without the sanction or authority of their companions, will be altogether invalid.'

36. Tenancies of Uncertain Terms.-The rule which requires a demand for possession or notice to quit, applies to all general and undefined tenancies, whether they originate simply by permission of the owner, by an entry under a void lease, by an entry pending a treaty for a purchase, or wherever no express agreement has been made as to the terms of the occupancy, the entry being lawful, or with the privity and consent of the owner. All such uncertain tenancies, whether created by grant, or contract, or arising by implication, are, so

1 Tyler on Ejectment, 227; Doe v. 10 B. & C. 626; Doe v. Chaplin, 3 Goldwin, 2 Q. B. 142; Doe v. Robin- Taunt. 120; Doe v. Baker, 8 Taunt. son, 3 Bing. N. C. 677; Doe v. Walters, 241; Allford v. Vickery, 1 C. & M. 280.

« PředchozíPokračovat »