87. Tenancies at ■will are created:
(b) By express agreement. (c) By implication of law.
A tenancy at will is where a person is in possession of land let to him to hold at the will of the lessor. The tenancy, however, is one at the will of either party. A general letting without limitation as to duration of a term (not being in a form to pass an estate of freehold), or a mere permission to enter and occupy, creates a tenancy at will, provided no rent is reserved. The reservation of a rent raises a presumption that the tenancy is from year to year.
On delivery. Burns v. Cooper, 31 Pa. St. 426; Caswell v. Districh, 15 Wend. (N. Y.) 379; Butterfield v. Baker, 5 Pick. (Mass.) 522; Alwood v. Euckman. 21 111. 200; Dixon v. Niccolls, 39 111. 384; Mclellan v. Whitney, 65 Vt 510, 27 Atl. 117. But see Moulton v. Robinson, 27 N. H. 550; Horseley v. Moss, 5 Tex. Civ. App. 341, 23 S. W. 1115; Gray v. Robinson (Ariz.) 33 Pac. 712; Consolidated Land & Irrigation Co. v. Hawley (S. D.) 63 N. W. 904. The rent is only due at harvest time. Lamberton v. Stouffer, 55 Pa. St. 284; Co-bel v. Cobel, 8 Pa. St. 342. But see Dixon v. Niccolls, 39 111. 372.
171 Dixon v. Niccolls, 39 111. 384, 386; Lewis v. Lyman, 22 Pick. (Mass.) 437; Armstrong v. Bicknell, 2 Lans. (N. Y.) 216; Moulton v. Robinson, 27 N. H. 550. But see Birmingham v. Rogers, 46 Ark. 254.
172 Hoskins v. Rhodes, 1 Gill & J. (Md.) 266; Newcomb v. Earner, 2 Johns. (N. Y.) 421, note; Dockham v. Parker, 9 Greenl. (Me.) 137. And see Caruthers v. Williams, 58 Mo. App. 100.
A tenancy at will may, of course, be created by express agreement, even with a reservation of rent, if apt words are employed.173 It also arises by implication of law. In such, cases the entry is usually for some other purpose than to create a tenancy. Thus one who enters under a contract to purchase, and remains after the negotiation has fallen through, becomes a tenant at will.174 So a vendor or lessor, by continuing in possession, may become a tenant at will.175
88. The principal incidents of a tenancy at will are the following:
(a) The tenant is entitled to emblements, unless he terminates the tenancy himself.
(b) He must not commit waste.
(c) His interest cannot be sold on execution.
173 Leake, Land. 208. Cf. Doe v. Cox, 11 Q. B. 122.
174 Doe v. Chamberlaine, 5 Mees. & W. 14; Doe v. Miller, 5 Car. & P. 595; Gould v. Thompson, 4 Mete. (Mass.) 224; Manchester v. Doddridge, 3 Ind. 360. Entry under a parol contract to purchase creates a tenancy at will. Hall v. Wallace, 88 Cal. 434, 26 Pac. 300. But if the sale is not consummated, by fault of the vendee, he becomes a mere trespasser, and liable only in tort for the mesne profits. Prentice v. Wilson, 14 111. 91; Howard v. Shaw, 8 Mees. & W. 118; Smith v. Stewart, 6 Johns. (N. Y.) 46; Clough v Hosford. 6 N. Bl 231; Bell v. Ellis' Heirs, 1 Stew. & P. (Ala.) 294; Glascock: v. Robards, 14 Mo. 350. A tenancy at will arises when possession is taken under an agreement for a lease, Childers v. Lee (N. M.) 25 Pac. 781; Weed v. Lindsay. 88 Ga. 686, 15 S. E. 836; Mayor, etc., of Thetford v. Tyler, 8 Q. B. 95; or under a parol lease for more than the time allowed by the statute of frauds, Jennings v. Mccomb, 112 Pa. St. 518, 4 Atl. 812; Talamo v. Spitz-miller, 120 N. Y. 37, 23 N. E. 980. But if rent is paid the holding is from year to year. Doe v. Amey, 12 Adol. & E. 470; Barlow v. Wainwright, 22. Vt. 88.
175 Howard v. Merriam, 5 Cush. (Mass.) 503; Bennett v. Robinson, 27 Mich. 20; Tarlotting v. Bokern, 95 Mo. 541, 8 S. W. 547; Brooks v. Hyde, 37 Cal. 366; Sherburne v. Jones, 20 Me. 70; Currier v. Earl, 13 Me. 216. So of a debtor remaining in possession after execution sale. Nichols v. Williams, 8 Cow. (N. Y.) 13. But see Tucker v. Byers, 57 Ark. 215, 21 S. W. 227; Groome v. Almstead, 101 Cal. 425, 35 Pac 1021.
If the tenant at will puts an end to the relation of lessor and lessee, he is not entitled to emblements,176 but he is so entitled when the lessor causes the termination of the tenancy.177 The tenant's interest is forfeited for waste.178 Estates at will are chattel interests, but cannot be sold on execution.179
At common law, the parties to a tenancy at will terminate it at any time either one chooses to do so, and without giving any previous notice of such intention to the other party. The parties may, of course, by agreement, provide for any kind of a notice they choose, and for any length of time before terminating the tenancy. The statutes of many states now require a notice before a tenancy at will can be terminated.180 Where such notice is not required, and the parties have not stipulated for one, either landlord or tenant may put an end to the tenancy by almost any act which shows such an intention.181 Any assertion by the lessor of his right to possession terminates the tenancy.182 An assignment by
176 Carpenter v. Jones, 63 111. 517.
177 Sherburne v. Jones, 20 Me. 70; Davis v. Thompson, 13 Me. 209; Simp-kins v. Rogers, 15 111. 397; Harris v. Frink, 49 N. Y. 24.
178 Daniels v. Bond, 21 Pick. (Mass.) 3G7; Phillips v. Covert, 7 Johns. (N. Y.) 1; Rapallo, J., in Harris v. Frink, 49 N. Y. 33. And see Perry v. Carr, 44 N. H. 118.
179 1 Stim. Am. St Law, § 1344; 2 Shars. & B. Lead. Cas. Real Prop. 169.
180 The length of notice required ranges from a few days to three months. 1 Stim. Am. St. Law, § 2051; 2 Shars. & B. Lead. Cas. Real Prop. 177. Cf. Morgan v." Powers, 83 Hun, 298, 31 N. Y. Supp. 954.
181 2 Tayl. Landl. & Ten. (8th Ed.) § 44; 1 Wood, Landl. & Ten. (2d Ed.) 67. But see Parker v. Constable, 3 Wils. 25; Jackson v. Bryan, 1 Johns. (N. Y.) 322. Death of either party terminates the tenancy. James v. Dean, 11 Yes. 383; Rising v. Stannard, 17 Mass. 282; Manchester v. Doddridge, 3 Ind. 360; Say v. Stoddard, 27 Ohio St 478. But the tenant has a reasonable time to remove his property. Ellis v. Paige, 1 Pick. (Mass.) 43.
182 Such as selling the premises, Howard v. Merriam, 5 Cush. (Mass.) 563; the tenant of his interest destroys the tenancy, at the landlord's option.183