1 The judgment below was reversed, however, on account of an error in rejecting certain testimony. - Ed.
In like manner, under the English valuation and tax acts, it has been held that, in order to constitute a tenancy, there must be a putting of a lessee into the exclusive occupation of the apartment, and not a mere admission of a common lodger or inmate, the landlord retaining the legal possession of the whole house. Smith v. St. Michael, 3 E. & E. 383; Stamper v. Overseers of Sunderland, L. R. 3 C. P. 388; The Queen v. St. George's Union, L. R. 7 Q. B. 90.
It was decided by Lord Ellenborough, and admitted by Barons Parke and Alderson, that a covenant, in a lease of a coffee-house in London, not to lease or underlet the premises or any part thereof, was not broken by permitting a man to lodge for a year in a particular room, "of which he had exclusive possession," unless under a distinct demise of the room so as to enable him to maintain trespass. Doe v. Laming, 4 Camp. 73; Greenslade v. Tapscott, 1 C, M. & R. 55; s. c. 4 Tyrwh. 566. An entire floor, or a series of rooms, or even a single room, may doubtless be let for lodgings, so separated from the rest of the house, as to become in fact and in law the separate tenement of the lessee. Newman v. Anderton, 2 B. & P. N. R. 224; Fenn v. Grafton, 2 Bing. N. C. 617; s. c. 3 Scott, 56; Monks v. Dykes, 4 M. & W. 567; Swain v. Mizner, 8 Gray, 182. But in such a case, as observed by this court in Swaine v. Mizner, he is "a housekeeper, and not a lodger only." In Monks v. Dykes, it was held that a lodger, occupying one room in a house, the woman who owned the house residing therein and keeping the key of the outer door, had no such occupation of the room that he could maintain trespass against a stranger intruding into the room; and Baron Parke said: "I think that neither in law nor in common sense can a man be described as being in possession of a dwelling house, when he is a mere lodger."
It has indeed been held in two English cases, cited for the defendant, that agreements to take certain apartments in a house as lodgings at a yearly rent were within the statute of frauds. Inman v. Stamp, 1 Stark. 12; Edge M.Strafford, 1 Tyrwh. 293; s. c. 1 C. & J. 391. Hut there is nothing in either of the reports to show that the rooms were in a boarding house; and, as suggested by the judges in Wright v. Stavert, 2 E. & E. 721, each appears to have been a case of an agreement, which, if perfected by entry, would have amounted to an actual demise, and would have given the occupant all the possessory rights of a tenant.
In Wright v. Stavert, on the other hand, it was held that an oral agreement to pay a certain sum yearly for the board and lodging of a gentleman and his servant in a boarding house, terminable by a quarter's notice on either side, was not an agreement for any interest in real estate; and Chief Justice Cockburn said that to hold such a case to be within the statute of frauds would lead to most absurd and inconvenient consequences. The only distinction between that case and the present is that it states one of the terms of the agreement to have been that "the defendant was to have no exclusive right to or interest in any particular rooms, but to be considered simply as a boarder and an inmate."
But in the similar case of Wilson v. Martin, 1 Denio, 602, it is implied in the statement of the case, and expressed in the opinion, that the agreement, which was held to create no lease, and no interest in lands, was for the use of particular rooms, as well as for board, in the plaintiff's boarding house; and Mr. Justice Bronson, in delivering judgment, said: " This was nothing more than an agreement for board and lodging, with a designation of the particular rooms which the defendant was to occupy. It was not a contract for the hiring and letting of real estate. When one contracts with the keeper of a hotel or boarding house for rooms and board, whether for a week or a year, the technical relation of landlord and tenant is not created between the parties. The lodger acquires no interest in the real estate. If he is turned out of the rooms before the time expires, he cannot maintain ejectment; and while he remains the hotel keeper cannot get his pay by distraining for rent in arrear.'
In the case at bar, the declaration alleged, and the evidence introduced at the trial tended to prove, an ordinary agreement for board and lodging in the plaintiff's boarding house, by which the plaintiff, as keeper of the boarding house, retained the legal possession, custody and care of the whole house and of every room therein. The defendant took, by reason of the fact that the rooms in which he and his family were to lodge were specified in the agreement, no greater legal right in those rooms, than he would, if they had not been so specified, have taken in the house. There was no evidence to warrant the inference of an agreement that the defendant should have any such exclusive possession of the rooms specified as would enable him to maintain any action founded on that possession, either against the plaintiff or against a stranger. The only rights of action between the parties are upon the agreement itself. Wright
v. Stavert, 2 E. & E. 721, 727; Underwood v. Burrows, 7 C. & P. 26; McCrea v. Marsh, 12 Gray, 211.
The instructions requested were, therefore, rightly refused, and no exception appears to have been taken to the instructions given.
c. Cases of cultivating a crop on shares.1
15 Wendell (N. Y.), 379. - 1836.
Assumpsit for rent. Plaintiff's testator agreed in writing to let Districh have his farm for one year, the latter to sow oats and give testator one-third in the half bushel, to sow corn and give one-third in the basket, etc., etc. Plaintiff proved quantities of grain sowed and rested. Defendant asked for a non-suit on the ground that the instrument was not a lease but made the parties to it tenants in common of the crop. Non-suit granted. Plaintiff appeals.