§ 1253. We have seen that notice to quit is unnecessary where the lease has expired by its own limitation.6 But where, in such case, the landlord receives rent, he impliedly acknowledges a continuation of the tenancy, and must give notice to quit.1 So, also, it is unnecessary to give notice where the relation of landlord and tenant is not created. As if a party obtain possession of the premises without the knowledge or consent of the owner thereof;2 or if the landlord, being tenant for life, die, and the premises become the property of the remainder-man.3 So, also, notice need not be given where the tenancy is merely a tenancy at sufferance. So, also, where a tenant has attorned to any other person, or has done any act disclaiming his tenancy or disavowing the rights of his landlord, he may be treated as a trespasser, and ousted without notice to quit.4 Thus, if he set up a title hostile to that of his landlord, or if he assist another to set up such a claim, it is a forfeiture of his term.5 But such a disclaimer must amount to a direct disavowal of the relation of landlord and tenant or a distinct assertion of a right or claim incompatible with such a relation, in order to obviate the necessity of the notice.6 Thus, a mere refusal to pay rent,7 or to acknowledge a particular person as landlord until further information be given that he is actually so,8 or the mere payment of rent to a third person,9 unaccompanied with any assertion affecting the right of the landlord, would not be a sufficient disclaimer to render a notice to quit unnecessary.
1 Hemphill v. Flynn, 2 Barr, 144; Conway v. Starkweather, 1 Denio, 113; Webber v. Shearman, 3 Hill, 547; Phillips v. Monges, 4 Whart. 226; De Young v. Buchanan, 10 Gill & Johns. 149; Dorrell v. Johnson, 17 Pick. 263; Allen v. Jaquish, 21 Wend. 628; Clapp v. Paine, 18 Me. 264. Where a demise is determined by the expiration of the landlord's estate, and the tenant continues to hold under the remainder-man, paying the same rent, the question whether a term contained in the former tenancy is adopted into the new contract of demise is a question of fact. Oakley v. Monck, Law R. 1 Exch. 159 (1866). If, after the determination of a term by the expiration of the landlord's estate, a tenant continues to hold under the remainder-man, and nothing passes between them except the payment and receipt of rent, the new landlord is not bound by a stipulation contained in the former tenancy, which is not known to him in fact, and is not according to the custom of the country. Ibid.
2 Conway v. Starkweather, 1 Denio, 113; Prindle v. Anderson, 19 Wend. 391; 23 Wend. 616.
4 Draper v. Crofts, 15 M. & W. 166; Tancredv. Christy, 12 M. & W. 316; Christy v. Tancred, 9 M. & W. 438.
5 By a notice to quit given to a tenant from year to year, his tenancy is determined on the expiration of the current year, and a waiver of the notice creates a new tenancy, taking effect on the expiration of the old one. Tayleur v. Wildin, Law R. 3 Ex. 303 (1868).
6 Ante, § 1254.
§ 1254. The tenant may also determine the lease by giving proper notice to the landlord of his intention to quit. But notice is unnecessary on the part of the tenant, if the landlord accept another person as tenant in his stead,1 or do any act amounting to an assent to the determination of the tenancy.2 Such act should be unequivocal, however; and if it can be otherwise explained, the landlord will not be considered as determining the lease.3
1 Doe v. Smaridge, 7 Q. B. 957.
2 Doe v. Quigley, 2 Camp. 505.
3 Bight v. Bawden, 3 East, 260; Boe v. Prideaux, 10 East, 165.
4 Throgmorton v. Whelpdale, Bull. N. P. 96; Doe v. Pasquali, Peake, 196; Bower v. Major, 1 B. & B. 4; 3 Moore, 216. For a definition of disclaimer, see Doe v. Flynn, 1 C, M. & B. 137; Doe d. Williams v. Cooper, 1 Scott, N. R. 36; 1 M. & G. 135; Tuttle v. Reynolds, 1 Vt. 80; Kinsley v. Ames, 2 Met. 29.
5 Doe v. Flynn, 1 C, M. & R. 137.
6 Doe 17. Frowd, 1 M. & P. 480; 4 Bing. 557; Doe v. Creed, 2 M. & P. 648; 5 Bing. 327; Doe v. Clarke, Peake, Ad. Cas. 239; Doe v. Grubb, 10 B. & C. 816.
7 Doe v. Stanion, 1 M. & W. 703.
8 Doe v. Cawdor, 1 C, M. & R. 398.
9 Doe v. Parker, Gow, 180.
§ 1255. Under a mortgage-deed, containing the usual proviso for the enjoyment of the land by the mortgagor until default of payment, the mortgagor may be considered as tenant for years, while in possession, before default.4 But after default, unless there be a new agreement, he resembles a tenant at sufferance, and is not entitled to notice to quit.5 If however, the mortgage-deed contain no agreement in regard to the mortgagor retaining possession, and he actually occupy the premises, he would be a tenant strictly at will.6 So, also, if a tenancy be created after the mortgage, without the privity of the mortgagee, the tenant of the mortgagor can be ejected by the mortgagee without notice,7 unless the mortgagee recognize the tenant or encourage him to lay out money on the premises;8 but if it be created before the mortgage, the tenant is entitled to notice from the mortgagee.9
§ 1256. Where the premises are leased for years, determinable previously to the regular expiration of the lease, as in the case of a lease for twenty-one years, determinable at the end of three years, a notice to quit is necessary in order to determine the lease. In England a tenancy for years can only be determined by a half-year's (not six lunar months') notice to quit, ending at the expiration of the current year.10 For
1 Sparrow v. Hawkes, 2 Esp. 505.
2 Whitehead v. Clifford, 5 Taunt. 518.
3 Redpath v. Roberts, 3 Esp. 225; Mills v. Bottomry, Selw. N. P. 1289.
4 Powsely v. Blackman, Cro. Jac. 659; Doe v. Giles, 5 Bing. 421.
5 Doe d. Fisher v. Giles, 5 Bing. 421; Doe v. Olley, 12 Ad. & El. 481; Kinsley v. Ames, 2 Met. 29.
6 Keech v. Hall, 1 Doug. 22.