The agreement, though by parol, and void as to the term and the interest in lands sought to be created, regulates the relations of the parties to it in other respects upon which the tenancy exists, and may be resorted to to determine their rights and duties, in all things consistent with, and not inapplicable to a yearly tenancy, such as the amount of rent to be paid, the time of year when the tenant could be compelled by the landlord to quit, and any covenants adapted to a letting for a year. Doe v. Bell, 8 T. R. 579; 8 Cow. supra; Arden v. Sullivan, 14 Q. B. (Ad. & El. N. S.) 832; Doe v. Amey, 12 Ad. & El. 476; Berry v. Lindsley, 3 M. & F. 498; Edwards v. demons, 24 Wend. 480.
We are thus enabled to ascertain the relations to each other, of the Reeders and Tuthill, when Sayre, the defendant, came in, as the vendee of the premises by a valid contract of sale and purchase. * * *
They were entitled to remain and use through the year 1873 and up to the 1st of April, 1874, unless the occupation was sooner determined by mutual assent of them and Tuthill, or his successors in interest, or by a sufficient notice to quit from some one having legal right to give it.
It is said that so to construe is to make the lease interminable. It is interminable, save as it may be terminable, by the notice to quit of the lessor or the lessee; or by an actual or implied surrender. " In truth, he is a tenant from year to year, as long as both parties please," says Lord Kenyon in Rex v. Inhabitants of Stone, 6 T. R. 295; Doe v. Wood, 14 M. & W. 682.
1 See Talamo v. Spitzmiller, p. 741, supra. - Ed.
A sufficient notice to quit, given in 1871, would have terminated their right of occupation on the first day of April, 1872. People v. Rickert, supra. A sufficient notice to quit in 1872, would have terminated their right of occupation on the first day of April, 1873; and either of such notices, given before seeding, would have prevented the right to sow in 1873 for a crop of wheat to be gathered in 1874. For, in case of a tenancy from year to year, growing out of a parol lease void by the statute of frauds, the lessor has a right, in any year of the occupancy under it, to give a sufficient notice to quit and thus to terminate the tenancy on the last day of the rental year. A formal notice was necessary to terminate their holding, or to cut off the rights accrued and accruing to them from their occupation as tenants from year to year, under the void lease, except as hereinafter noticed. Bradley v. Corel, 4 Cow. 349; Jackson, ex. dem. v. Salmon, 4 Wend. 327. The notice to quit must have been for the end of some year of the holding. 4 Cow. supra. In this case, for the first day of April, 1873.
So that we have before us in May, 1872, the Reeders, the plaintiffs as tenants, and Tuthill, the owner, as landlord; the Reeders, with the right to remain and use, through the year 1873 and up to April 1st, 1874, unless, in due time, a due notice to quit, is given to them by their lessor, or by some one succeeding to his rights. * * *
But the question then is, was it necessary that the Reeders should have service of notice to quit, ending when the term would have ended by the parol agreement ? In England it has been held, that a tenant from year to year, under an agreement for a lease for seven years, which lease was never executed, was not entitled to notice to quit at the end of the seven years, as the contract itself gave him sufficient notice. Doc ex dem Tilt. v. Stratton, 4 Bing. 446; Tress v. Savage, 4 Ell. & Bl. 36.
It has been held in this State, that under a valid lease, which fixed the length and ending of the term, no notice to quit was necessary. Allen v. Jaquish, 21 Wend. 628. I know of no decision expressly holding that the same rule does not apply to a holding from year to year, begun under a void lease, which named a time for the termina-tion of the tenancy; but see 4 Wend., supra.
But what was the time for the termination of the tenancy in this case? Was it the first day of April, 1873, or was it after the crop of wheat, sowed in 1872 was harvested? We think that it was not until the latter event that the whole interest of the Reeders in the lands terminated. They knew that their right to remain on the farm ceased, so far as the oral agreement gave right, on the first day of April, 1873. A surrender of the premises generally at that time, of itself made no difference in their right to an off-going crop. 9 J. R. supra. They also knew that the same agreement gave right to sow and reap a crop of wheat thereafter, and that this was a prolongation of their term. Beavan v. Delahay, 1 Hy. Bl. 5; Boraston v. Green, 16 East, 71. Under the decisions above cited, they are held to no more than to take note of the time of the termination of their interest in the lands, and to govern themselves accordingly. Their interest in the lands, under an operative and valid lease, would not have ceased entirely until they had harvested and threshed the crop of wheat sowed in 1872. So that we are brought to the conclusion that they had a right in the lands after the first day of April, 1873, which, while it could have been terminated by a sufficient notice to quit, given by one legally entitled so to do, could not be terminated in any other way. As Tuthill, the owner of the legal title, did not give that notice, the tenancy was not terminated. * * *
The judgment appealed from should be affirmed.
2. Alienability, etc.
11 New York, 494. - 1854. [Reported herein at p. 773.]
3. Termination. Notice.
40 New Jersey Law, 128. - 1878.
Summary proceeding to recover real property from a tenant. Judgment for the landlord. The tenant appeals.
Reed, J. - * * * What, then, in the first place, is the character of this tenancy, in respect to time?
To support the judgment in this case, it must be a monthly letting. The defendant insists that the words employed by the claimant, in the affidavit, import a tenancy at will, or from year to year, and therefore a three months' notice was requisite to determine the tenure. The question is important from the fact that, acting upon the supposition that the tenancy was monthly, only a month's notice was attempted by the claimant. Indeed, the distinction between tenancies from year to year and tenancies for a less period, in all the cases, seems to be important only in relation to the notice by which the determination of either kind can be effected. Unless it can be shown that monthly or weekly tenancies are unknown, I do not see how it is possible to hold the tenancy described in the affidavit to be other than a monthly tenancy. That such tenancies have an existence, the cases hereafter cited will establish, and to hold that the contract here shown is a monthly letting is only giving to the words of the affidavit their literal force. Further argument would be wasted upon this point.