& P. 595 5 Doe v. Chamberlaine, 5 M. & W. 14; Right v. Beard, 13 East, 210; Gould v. Thompson, 4 Met. 224; 12 Mass. 325. And he has the right of ingress and egress to remove his effects. Love v. Edmonston, 1 Iredell, N. C. 152; Jones v. Jones, 2 Rich. L. R. S. C. 542; Doe v. Baker, 4 De v. 220; Manchester v. Doddridge, 3 Iredell, 360; Lowry v. Tew, 3 Barb. Ch. 414; 5 Wend. 29. He is not liable for rent, because a promise to pay rent cannot be implied in such a case, the tenant having entered under a different contract. Smith v. Stewart, 6 Johns. 46; Bancroft v. Wardwell, 13 Id. 489; Winter-bottom v. Ingham, 7 Q. B. 611. But, nevertheless, he is a tenant at will. Howard v. Shaw, 8 M. & W. 122. And he is not entitled to notice to quit if he makes default in his contract. Jackson v. Miller,
7 Cow. 747. A tenant strictly at will was not, prior to the Revised Statutes, entitled to notice to quit. Jackson v. Bradt, 2 Caines' R. 169; Doe v. Baker, 4 Dev. 220; Jackson v. Bryan, 1 Johns. 322; 13 Maine, 214; 2 Esp. 717; Crabb on Real Property, § 1559; Post v-Post, 14 Barb. 253. From considerations of equity, tenancies at will were, under certain circumstances, treated by the courts as tenancies from year to year merely for the sake of notice to quit. 4 Cow. 350. This is called by Chancellor Kent a species of judicial legislation. 4 K C. 127, 11th ed.; Jackson v. Bryan, 1 Johns. 322. But this indulgence was not extended to a tenancy at will created by entry under a parol contract of purchase. 7 Cowen, 751, 752; Suffern v Townsend, 9 Johns. 35; 9 Id. 331. In England, a tenant at will by entry under a contract of purchase is not entitled to notice to quit at a future time; but, unless he does some wrongful act to terminate the tenancy, he cannot be treated as a trespasser or sued in ejectment without a demand of possession. 5 Carr. & P. 595; 13 East 210; 5 M. & W. 14. If he makes default in his contract of purchase or commits waste, or in any other manner terminates the tenancy by his own wrongful act, he becomes a trespasser, and may be sued as such or in ejectment, and he cannot dispute the till of the party under whom he entered; Cooper v. Stower, 9 Johns. 331; Doolittle v Eddy, 7 Barb. 74; 1 Wend. 418; 5 Id. 30; 6 Johns.
34, 49; and he would, no doubt, forfeit his right to emblements under those circumstances. Co. Litt. 55 b.
Expressions are to be found in some of the authorities cited, to the effect that one entering under a contract of purchase does not stand in the relation of tenant to the vendor. 6 Johns 46; 13 Id. 489. These expressions are used, however, in reference to the question whether an undertaking to pay rent can be implied. But where a purchaser of a farm enters upon it under an express agreement of the vendor that he may occupy and work it until the vendor is prepared to convey, and the agreement to sell is merely by parol, and the question arises with reference to the rights of such an occupant, in case of a refusal of the vendor to perform, and a termination by him of the occupancy, without any default on the part of the occupant, there is strong reason for according to such occupant the rights of a tenant at will. The permission to occupy unaccompanied by any contract of sale, would clearly create a tenancy at will. 31 N. Y. 453; 2 Caine's R. 174, and cases supra. The effect of the invalidity of the contract of sale is to reduce the right of the vendee to that of a mere licensee, and to enable the vendor to revoke the license at his pleasure. When he exercises that right there is no injustice in placing him in the same position as if the contract of sale which he repudiates had not been made. The holding, from the beginning was, in fact, at his will; and the principles upon which emblements are allowed to a tenant at will would seem applicable to such a case. Comyns' Dig., title Biens. G. 2; Co. Litt. 55 a., 55 b.
2. Termination of Tenancy at Will. a. By express determination of the will. Notice.
DOE ex dem.
11 Adolphus & Ellis N. S., (Eng. Q. B.), 122. - 1840.
[Reported herein at p. 767.]
31 New York, 453. - 1865. [Reported herein at p. 768.]
Ik By implied determination of the will.
( I.) Transfer of Interest of Either Party.
Allen, J., in
43 New York, 448. - 1871.
The defendants now claim that their lessors were tenants at will, or by sufferance of the plaintiff, and that they, by the act and assent of such tenants having acquired the possession of the premises, have thereby become and are the tenants of the plaintiff, holding by the same tenure and entitled to the same notice to quit as those to whose possession they have succeeded. Assuming that the case establishes the relation of landlord and tenant between the plaintiff and Reckhow & Hudson, under whom the defendants claim to have acquired the possession and right of possession, which is by no means clear, the result claimed by the defendants by no means follows. A tenant at will is disqualified from granting a lease available against anyone but himself; for the demise would amount to a termination of the will, and it would be optional with the landlord to regard the entry of the lessee of the tenant at will as a disseisin. 1 Platt on Leases, 104. The same rule holds as to a tenant by sufferance. Id. 122. The yielding of the possession of the premises terminates the original tenancy, and a new tenancy at the will of the owner cannot be created except by his or her assent. Every lease at will is at the will of both parties, and a tenant at will has no certain and indefeasible estate; nothing that can be granted by him to a third person. If a tenant at will assigns over his estate to another who enters on the land he is a disseisor, and the landlord may have an action of trespass against him. 1 Greenleaf Cruise, 278; Campbell v. Proctor, 6 Greenleaf R. 12. A tenancy by sufferance, existing only by the laches of the owner, cannot give the occupant an estate or interest capable of transmission to another. At common law, a tenant at sufferance is not entitled to notice to quit. There is no evidence that the plaintiff assented to the occupancy of the defendants, or that she had any knowledge of such occupancy prior to the commencement of the action. It is undoubtedly true that when the relation of landlord and tenant is established, it attaches to all who may succeed to the possession through or under the tenant; but this cannot apply to tenancies that are terminated by the very act of transmission of the possession. The defendants have not shown any permission from the plaintiff to enter upon the premises, and they were, therefore, trespassers and not entitled to notice to quit.