This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
89. Six Carpenters' Case, 8 Coke 146a; 1 Smith's Leading Cas. (11th Ed.) 132.
90. Trevillian v. Andrew, 5 Mod. 384; Dorrell v. Johnson, 34 Mass. (17 Pick.) 263; Russell v. Fabyan, 34 N. H. 218; Rising v. Stannard, 17 Mass. 282. See Toles v. Meddaugh, 106 Mich. 398, 64 N. W. 329.
91. Y. B. 19 Hen. 6, 28; 2 Rolle, Abr. f. 550, 1. 7; f. 553, 11. 50, 52;
Com. Dig. Trespass (B2) (B3); Stearns, Real Actions (2d Ed.) 362; 3 Blackst. Comm. 210; Bige-low, Torts (7th Ed.) Sec.Sec. 469, 470; Newell, Ejectment, 623; Sedgwick & Wait, Trial of Title to Land (2d Ed.) Sec. 57. See Leland v. Tousey, 6 Hill (N. Y.) 326; Reid v. Stanley, 6 Watts & S. (Pa.) 369; Cutting v. Cox, 19 Vt. 517, and cases cited 28 Am. & Eng. Ency. Law (2d Ed.) 577.
Not infrequently in modern cases the courts assume that a tenant at sufferance is a tenant of or under the person entitled to possession. The common-law authorities give not the slightest countenance to such a view. Coke speaks of tenant at sufferance as tenant "against" not "of" the reversioner,92 and it is expressly stated that there is no privity between the tenant at sufferance and the reversioner,93 and that for this reason a release to the latter is not good. So it is the rule, except as changed by statute, that distress cannot be made after the end of the term94 for the reason, it seems, that upon the ending of the term the relation of privity ceases.95 A tenant pur auter vie who holds over after the death of the cestui que vie, though well recognized to be a tenant at sufferance, cannot, with any show of reason, be regarded as tenant of the remainderman under whom he did not enter, with whom he has no contractual relations, and who has never consented to his continued possession. So it is said by Lord Mansfield96 that the possession of a tenant pur auter vie holding over is adverse to the remainderman or reversioner, which could not be the case were he to be regarded as holding of the latter,97 and in accordance with this dictum is the weight of modern authority to the effect that the statute of limitations runs in favor of such tenant holding over.98
92. Co. Litt. 57b.
93. Co. Litt. 270b; Butler v. Duckmanton,, Cro. Jac. 169.
94. Co. Litt. 47b; note (2) to Poole v. Louguevill, 2 Wms. Saund. 284a.
95. 1 Rolle, Abr. 672 pl. 10; Bradby, Distresses, 89.
96. In Doe d. Fishar v. Pros-ser, Cowp. 218.
97. Post Sec. 513 (a).
This single case of a life tenant holding over is sufficient to demonstrate that the expression "tenant at sufferance" has no reference to any idea that a relation of tenancy exists between such tenant and the person rightfully entitled. And the fact that a tenant for years wrongfully holding over is not, as is a life tenant so holding over, regarded as holding adversely to the person rightfully entitled, does not show that he is such person's tenant, but merely that the circumstances of his entry under a lease excludes the inference that his wrongful possession is under claim of right. At the present day, it is true, a tenant under a lease holding over his term is quite frequently regarded as a tenant of the person entitled, the reversioner, for the purpose of supporting an action against him for use and occupation.99 How one so holding over can, at the election of the reversioner, be liable either in an action of trespass for mesne profits or in an action based on the theory of a rightful possession and a contractual liability is somewhat difficult to say, but conceding that a termor so holding over is, under these decisions, to be regarded as a tenant of the reversioner, it is not because the early judges chose to call him a tenant at sufferance, but because the later judges have chosen to regard one who becomes tenant under a lease as continuing in privity to the reversioner, at the election of the latter, so long as he chooses to stay in possession, for the purpose of an action for use and occupation.
The fact that, as Coke says, "there is a great diversity between a tenant at will and a tenant at sufferance," in that one holds rightfully and the other wrongfully,1 has not infrequently been ignored in statutory enactments which, under the mistaken idea, it seems.
98. Post Sec. 513 (g).
99. Post Sec. 70 note 28.
1. Co. Litt. 57b. "There can be no such thing as tenant by sufferance when the tenancy is the result of agreement." Stayton, J., that "sufferance" means "permission" and that, accordingly, a tenant at sufferance is a tenant by permission, have provided that a tenancy at sufferance can be terminated only by a notice of a certain number of days.2 To avoid the absurdity involved in such a requirement, that one wrongfully in possession should be entitled to notice to quit, the courts have occasionally seized upon a statement made by Coke,3 and adopted by Blackstone,4 that there is no tenant at sufferance against the king because he cannot be guilty of laches, and have accordingly decided that a tenant holding over is not a tenant sufferance, so as to be entitled to notice, until the person entitled has been guilty of laches.5 And occasionally they have gone so far as to hold that the one so holding over was not a tenant at sufferance unless the holding was so long continued as to authorize the implication of an assent to the holding,6 thus in effect regarding one as a tenant at sufferance only when he is a tenant at will or perhaps a periodic tenant. In so far as regards the assumption that a tenancy at sufferance is based upon the laches of the rightful owner, this can be regarded as correct only if by laches on his part we understand a failure to eject the wrongful holder immediately upon the commencement of the wrongful holding.7 A tenant wrongfully holding over is, it is conceived, a tenant at sufferance a day after the wrongful holding begins to the same in Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284. "One cannot, while he is rightfully occupying under the authority of the owner, be a tenant at sufferance." Field, J., in Lyon v. Cunningham, 136 Mass. 532.
2. See 2 Tiffany, Landlord & Ten. Sec. 196d.
3. Co. Litt. 57. The statement is based on a dictum by Man-wood, C. B. in Sir Moil Pinch's Case, 2 Leon. 143, in which Coke was counsel. There is a similar dictum in Attorney General v. Andrew, Hardres, 25.
4. 2 Blackst. Comm. 150.
5. Moore v. Morrow, 28 Cal. 551; Rowan v. Lytle, 11 Wend. (N. Y.) 616.
6. Smith v. Littlefield, 51 N. Y. 539; Meno v. Hoeffel, 46 Wis. 282, 1 N. W. 31; Purtell v. Far-ris, 137 Ga. 318, 73 S. E. 634.
7. See Stanley v. Stembridge, 140 Ga. 750, 79 S. E. 842.
Extent as he is a year thereafter. The question naturally suggests itself, if he is not, by reason of his wrongful holding, a tenant at sufferance until the end of a period after his wrongful holding begins, what sort of tenant is he during this intervening period.
Although a tenant for years wrongfully holding over after the term is properly referred to as a tenant at sufferance, frequently the latter expression is not employed, he being referred to merely as a tenant holding over, and he will be so referred to in our subsequent discussion of his rights and liabilities.