95. A tenancy at sufferance is a holding of lands after the expiration of a previous right to possession.

Same - creation

96. For the creation of a tenancy at sufferance, the tenant must have come in by agreement, and not as a trespasser, and he must hold without agreement.

Where there is a holding over by one whose right to occupy has expired, a tenancy at sufferance arises;218 for instance, when a tenant for years continues in possession after the end of his term.219 Such person must have come in originally by agreement,220 and not by operation of law, as a guardian, who becomes a trespasser by continuing to hold his ward's land after the ward is of age.221 There is no tenancy at sufferance where the holding over is by agreement, express or implied.222 And a tenant at sufferance may at any time become a tenant at will, or from year to year, by agreement with the landlord.223 Payment of rent makes the holding a tenancy from year to year.224

214 As to who are lodgers, see Morton v. Palmer, 51 Law J. Q. B. 7.

215 Wilson v. Martin, 1 Denio (N. Y.) 602; White v. Maynard, 111 Mass. 250; Cochrane v. Tuttle, 75 111. 361.

216 Musgrave v. Sherwood, 53 How. Prac. (N. Y.) 311; Young v. City of Boston, 104 Mass. 95; Porter v. Merrill, 124 Mass. 534; Swain v. Mizner, 8 Gray (Mass.) 182.

217 l Tayl. Landl. & Ten. (8th Ed.) 78; 1 Wood, Landl. & Ten. (2d Ed.) 133. But see Huffell v. Armitstead, 7 Car. & P. 56.

218 Doe v. Hull, 2 Dosol. & R. 38; Russell v. Fabyan, 34 N. H. 218; Eichen-green v. Appel, 44 111. App. 19; Uridias v. Morrell, 25 Cal. 31.

219 Jackson v. Parkhurst, 5 Johns. (N. Y.) 128; Moore v. Smith (N. J. Sup.) 29 Atl. 159. So a subtenant, after the termination of the original lease, Sim-kin v. Ashurst, 1 Cromp., M. & R. 261; or a tenant at will, whose estate has been terminated, Co. Litt. 57b; Benedict v. Morse, 10 Mete. (Mass.) 223. And see Kinsley v. Ames, 2 Mete. (Mass.) 29.

220 Cook v. Norton, 48 111. 20. So the entry must be lawful. Reckhow v. Schanck, 43 N. Y. 448; Cunningham v. Holton, 55 Me. 33.

Same - incidents

97. The principal incidents of a tenancy at sufferance are the following:

(a) The tenant is estopped to deny the landlord's title.

(b) He is not liable for rent.

(c) He is not entitled to emblements.

The relation of landlord and tenant obtains in a tenancy at sufferance only to the extent that the tenant is not permitted to deny the landlord's title.225 A tenant at sufferance is not liable for rent,226 the landlord's remedy being an action for use and occupation.227 The tenant cannot claim emblements, though the landlord terminates the tenancy before the tenant has harvested his crop.

221 Johnson, J., In Livingston v. Tanner, 14 N. Y. 69. 222 Johnson v. Carter, 16 Mass. 443. But see Landis' Appeal. 13 Wkly, Notes Cas. 226.

223 Hoffman v. Clark, 63 Mich. 175, 29 N. W. 695; Emmons v. Seudder, 115 Mass. 367; Den v. Adams, 12 N. J. Law, 99.

224 Schuyler v. Smith, 51 N. Y. 309.

225 Griffin v. Sheffield, 38 Miss. 390; Jackson v. Mcleod, 12 Johns. (N. Y.) 1S2.

226 2 Bl Comm. 150; Flood v. Flood, 1 Allen (Mass.) 217; Delano v. Montague, 4 Cush. (Mass.) 42. In several states he is made liable for rent by statute. 1 Stim. Am. St. Law, § 2022. And see Cofran v. Shepard, 1-1S Mass. 682, 20 N. E. 181. In many states a tenant who holds over when his Interest is ended, and after demand by the landlord, becomes liable for statutory pen-alties. 1 Stim. Am. St. Law, § 2060; 2 Shars. & B. Lead. Cas. Real Prop. 123.

227 lbbs v. Richardson, 9 Adol. & E. 849; National Oil-reffning Co. v. Bush, 88 Pa. St. 335; Hogsett v. Ellis, 17 Mich. 351. But see Merrill v. Bullock, 105 Mass. 486.