Than Freehold.

I. Nature of leaseholds in general.

1. Real or Personal Interests in Land.

Brewster V. Hill

1 New Hampshire, 350. - 1818. [Reported herein at p. 53.]1

2. Leaseholds Are to be Distinguished From a. Cases in which occupant of land is in as servant of owner.

Kerrains V. People

60 New York, 221. - 1875.

Error to review a judgment sustaining a verdict convicting plaintiff in error of assault with intent to kill.

Church, Ch. J. - The principal question of law contested on the trial, and elaborately argued in this court is, whether the relation of master and servant, or landlord and tenant, existed between the prisoner and the prosecutor, Mr. Son, in respect to the house occupied by the former. Although not decisive of the guilt or innocence of the prisoner, the determination of the question had properly a material influence.

1 See also Goodwin v. Goodwin, supra, p. 8, and Northern Bank of Kentucky, supra, p. 10. In some of the States terms for years of long duration are under some circumstances or for some purposes regarded as realty. The Massachusetts statute is as follows: "Section 1. When land is demised for the term of one hundred years or more, the term shall, so long as fifty years thereof remain unexpired, be regarded as an estate in fee simple as to everything concerning the descent and demise thereof upon the decease of the owner, the right of dower therein, the estate in lieu of dower, the sale thereof by executors, administrators, guardians, or trustees, the levying of executions thereon, and the redemption thereof where mortgaged or when taken on execution, and whoever holds as lessee or assignee under such a lease shall, so long as fifty years of the term are unexpired, be regarded as a freeholder for all purposes." Mass. Pub. Stat. (1882-7), ch. 121. By § 2, Id., in case dower is assigned out of such a term the widow must pay to the owner of the unexpired residue of the term one-third of the rent reserved in the lease under which the husband held the term. - Ed.

If the relation of master and servant existed it would follow that the legal possession of the house was in the prosecutor, and he had the legal right to remove the furniture and goods therein, and to employ the necessary force for that purpose; and that the defendant would not be justified in using force to prevent it. And yet, if the acts of the prosecutor were of such a threatening character, by the use of a pistol or other deadly weapon, that the prisoner believed, and had reason to believe, that his life was in imminent danger, he might be justified in using the necessary means to avert it. On the other hand, if the prisoner was holding the house as a tenant, and had a lawful right to defend his possession, and his property, by the use of proper and necessary means, yet, if the force used was unnecessary or excessive, either in amount or the kind of weapons employed under the circumstances presented, and after making due allowance for provocation and irritation, he might still be amenable to a criminal prosecution.

The court charged the jury that the prisoner occupied the house as a servant, and not as a tenant; and hence that the prosecutor had the legal possession.

The defendant stated the contract to be, that he was to work for Mr. Son a year at thirteen shillings a day, and have the use of the house he lived in and garden for that period. The prosecutor stated it substantially the same. He said: "I made a bargain with him for a year, if he and I could agree, I was to pay him thirteen shillings a day, and he was to have a house furnished him." There was no dispute but that the defendant was to have the house in which he then resided. It does not appear whether the wages were less by reason of furnishing the house, or whether any or what allowance was intended on that account. Nor does it distinctly appear whether a residence in that particular house was necessary to the proper discharge of the duties of the defendant. If the occupation is connected with the service, or if it is required, expressly or impliedly, by the employer for the necessary or better performance of the service, then it is for his benefit, and he continues in possession. Such was clearly the case of Haywood v. Miller, 3 Hill, 90, where a farmer hired a man and his wife to work a farm for wages. The occupation of the house was necessary to the performance of the service; and The People v. Annis, 45 Barb. 304, was substantially the same, although I am unable to agree with the learned judge who delivered the opinion in that case, that immediately upon the termination of the service a tenancy at will, or by sufferance, springs up. In order to have that effect the occupancy must be sufficiently long to warrant an inference of consent to a different holding. Any considerable delay would be sufficient, but I can see no principle which would change the occupant eo instanti, from a mere licensee to a tenant. The employer should resume control of his property within a reasonable time or consent would be inferred. Whether this time is a day or a week may depend upon circumstances. In Doyle v. Gibbs, 6 Lans. 180, the consent of the employer that the employed might remain until his wife recovered from an illness, was held not to amount to a consent.

The circumstance that the right of occupation terminates with the abrogation of the contract of service, by consent or by the discharge of the servant, is not decisive. The question is, what was the character of the holding under the contract? If that was a tenancy, then the party holding over would be a tenant at will, and the landlord would not be justified in entering with strong hand. So, while a deduction from wages of a specified sum for the use, or the absence of such an arrangement, would be a material circumstance, it would not be in all cases conclusive either way. The question depends upon the nature of the holding, whether it is exclusive and independent of, and in no way connected with the service, or whether it is so connected, or is necessary for its performance. And this, I think, is the result of all the cases. The question has often arisen in England, under the poor laws, to determine what occupation would confer a settlement, the courts recognizing, as controlling the distinction between an occupation as a tenant or as a servant. R. v. Minister, 3 M. & S. 276; R. v. Kelstern, 5 Id. 136; R. v. Chesnut, 1 B. & A. 473; R. v. Milkridge, 1 T. R. 598; R. v. Langriville, 10