Men must be more cautious in making their contracts, and not rely upon the hardship of their cases to relieve them, when they are brought into difficulty. Such mistakes rarely occur in England, although there is a court of equity there which may sometimes relieve in such cases. With us there is no such authority. The law must have its course, and the citizens must take care of themselves in making their bargain.
Plea adjudged bad.
III. Estates at will.
1. How Created.
(a.) By express agreement there/or.
DOE ex dem.
11 Adolphus & Ellis N. S., (Eng., Q. B.), 122. - 1847.
Ejectment for premises in Surrey. On the trial, before Coltman, J., at the last Surrey assizes, it appeared that the defendant, on June 18, 1844, mortgaged his interest in the premises to the trustees of a building society, now lessors of the plaintiff, by a deed containing this proviso:
"The said W. Cox doth hereby agree to become tenant to the said R. Bastow," etc., "their executors," etc., "of the premises hereby demised, henceforth, at their will and pleasure, at and after the rate of ,£25. 4s. per annum, payable quarterly."
The defendant retained possession and paid a year's rent, but afterwards made default. In January, 1847, the lessors of the plaintiff distrained for four quarters' rent then due; and on May 6, 1847, they gave him notice to quit in a week, which not being obeyed, the present action was brought. The defendant's counsel insisted that, by the proviso, he was tenant from year to year, and entitled to six months' notice. Coltman, J., was of a different opinion, but reserved leave to move for a nonsuit. Verdict for plaintiff.
Lush now moved that a nonsuit might be entered. The legal operation of the proviso was to create a tenancy from year to year. The courts have always favored such a construction where a yearly rent has been reserved, and the lessors of the plaintiff recognized a yearly tenancy by the distress for four quarters. (Erle, J. Is there any instance in which the words " at will " have been overlooked? Coleridge, J.: "So long as both parties shall please " is very different.) This, under the circumstances, was a tenancy at the pleasure of both.
Lord Denman, C. J. - The courts are desirous to presume a tenancy from year to year, where parties do not express a different intention; but here they have expressed it. To hold otherwise would be going beyond any decided case.
Coleridge, J. - Mr. Lush says the rule has been to presume in favor of a yearly tenancy. But it is also a rule that documents shall be construed according to the apparent intention; which, in the present instance, clearly is to create a tenancy at will. Rent, at the rate of £25. 4s. per annum, is to be paid quarterly; but that is, if the will continues undetermined; otherwise the reservation by quarters will not take effect.
Wightman, J. - I am of the same opinion. The meaning of the reservation is, that the tenant shall pay at such and such a rate during the time for which he may occupy.
Erle, J. - I am of the same opinion. The intention is, that the tenant shall hold at the will of the lessors, and at will only.
31 New York, 453. - 1865.
Campbell, J. - The defendant was in possession, holding for no particular time, paying no rent, making no compensation for the use of the land, but under agreement to surrender the premises whenever the landlord should require the possession. He was clearly a tenant at will. Post v. Post, 14 Barb. 253, and cases and authorities cited there. As such tenant at will the defendant was entitled to one month's notice to quit and surrender the premises. 3 R. S. 5th ed., p. 35, §§ 7, 8, 9.1 The duration of the tenancy is uncertain, and the landlord cannot eject the tenant summarily. He has one calendar month in which to make his arrangements to remove. The form of the notice is not prescribed further than it must require the tenant to remove from the premises, and it must be in writing. The 9th section declares that "at the expiration of one month from the service of such notice the landlord may re-enter, etc." In this case, the premises being unoccupied at the time, the landlord re-entered by the plaintiff before the expiration of the month. But the trespasses were not committed till May and June following, two or three months after the month had expired. The fact that the notice was served on the 24th of January, requiring the tenant to remove on the 20th February, could make no difference, as there is no claim for trespasses committed prior to the 24th February. All the defendant was entitled to was one month's notice to quit. It could make no difference that a specific day was fixed in the notice. The statute would still give him the month in which to make his preparations to remove. This month had long expired when the defendant virtually undertook to re-enter himself, as against his landlord, claiming that his tenancy had not terminated.
1 N. Y. R. P. L. § 198. - Ed.
It seems to me very clear that there was no foundation for such a claim on the part of the defendant.
This judgment should be affirmed.
b. By implication of law. (1.) Tenant Enters under Void Parol Lease or Parol Contract for a Sale.
no New York, 37. - 1890.
[Reported herein at p. 741.]
Rapallo, J., in
49 New York, 24 (32). - 1872.
I have, thus far, examined the case without reference to the position of the plaintiff's counsel, that the plaintiff, having entered upon the land with the license and permission of the owner to occupy and work it, became a tenant at will, and, as such, entitled to the emblements (Co. Litt. 55 b.), notwithstanding that he entered under contract of purchase.
The simplest form of a tenancy at will was where one man let to another to hold at the will of the lessor. Co. Litt. § 68. But a tenancy at will may be created otherwise than by express contract; it may arise by implication. Craft on Real Prop. § 1544. And an obligation to pay rent is not a necessary incident of such a tenancy. Where one enters by permission of the owner for an indefinite period, and without the reservation of any rent, he is, by implication of law, a tenant at will. Doe v. Baker, 4 Dev. N. C. 220. If he be placed upon the land without any terms prescribed or rent reserved, and as a mere occupier, he is strictly a tenant at will. Jackson v. Bradt, 2 Caines'. R. 174; 4 K. C. 114-125, 11th ed.; Post v. Post, 14 Barb. 253; Burns v. Bryant, 31 N. Y. 453. Where a householder permitted another to occupy, rent free, the occupant was held to be a tenant at will. Rex v. Collett, Russ & Ry. 498; Jackson v. Bryan, 1 Johns. 322, and would be entitled to emblements. Doe v. Price, 9 Bing. 357, 358. A parol gift of land creates a tenancy at will. Jackson v. Rodgers, 1 Johns. Cas. 33; s. c. 2 Caine's Cases, 314. And there is much authority in favor of the position, that one who is let into possession under a contract to purchase is strictly a tenant at will. Washburn on Real Property, 511, 513, 515, 3d ed.; Howard v. Shaw, 8 M. & W. 118-122; Waring v. King, Id. 571; Doe v. Miller, 5 Car.