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 .
As is said by Coke80 "a tenant at sufferance is he that first came in by lawful demise, and after his estate ended, continu-eth in possession and wrongfully holdeth over." Accordingly the expression "tenant at (or by) sufferance" is properly applied to one who enters under a lease for years and "holds over," that is, wrongfully retains possession, beyond his term.81 Likewise, a tenant at will who holds over after the termination of the tenancy becomes, it is generally recognized, a tenant at sufferance,82 though if a tenancy at will is terminated by the act of the tenant in attempting to transfer his interest and putting the transferee in possession, the latter is not a tenant at sufferance but is a mere disseisor or trespasser, since he did not enter by right as is necessary to make one a tenant at sufferance.83
78. Doe d. Pitcher v. Donovan, 1 Taunt. 555; King v. Eversfield [1897J 2 Q. B. 475.
79. Waggaman v. Bartlett 2 Mac-key (13 D. C.) 450; May v. Rice, 108 Mass. 150, 11 Am. Rep. 328; Roth Tool Co. v. Champ Spring Co., 93 Mo. App. 530, 67 S. W. 967.
80. Co. Litt. 57b.
81. Butler v. Duckmanton, Cro. Jac. 169; Sutton v. Hiram Lodge, 83 Ga. 770, 6 L. R. A. To:;. 10 S. E. 585; Willis v. Har-rell, 118 Ga. 906. 45 S. E. 794; Devine v. Lord. 175 Mass. 384, 56 N. E. 570; Russell v. Fabyan, 34 N. H. 218; Moore v. Moore, 41 N. J. L. 515; Poole v. Engelke, 61 N. J. L. 124, 38 Atl. 823; Liv-R. P. - 16. ingston v. Tanner, 14 N. Y. (4 Kern.) 64: Jackson v. Parkhurst, 5 Johns. (N. Y.) 128; Williams v. Ladew. 171 Pa. St. 369, 33 Atl. 329; Wood v. Page. 24 R. I. 594, 54 Atl. 372; Gulf, C. & S. F. Ry. Co. v. Cusenberry, 86 Tex. 525, 26 S. W. 43.
82. Bro. Abr., Tenant per Copy, pl. 4; Co. Litt. 57b; McLeran v. Benton, 73 Cal. 329, 2 Am. St. Rep. 814, 14 Pac. 879; Esty v. Baker, 50 Me. 325, 79 Am. Dec. 616; Reed v. Reed, 48 Me. 388: Emmes v. Feeley, 132 Mass. 346; Meier v. Thieman, 15 Mo. App. 307; Doe d. Bennett v. Turner, 7 Mees. & W. 226; 9 Mees. & W. 643.
One to whom a life tenant has conveyed the premises or has leased them, and who holds over after the death of the tenant for life, is also a tenant at sufferance,84 this being in effect the case of a tenant pur auter vie continuing in possession after the death of the cestui que vie.
A sublessee of a tenant for years, holding over after the expiration of the lessor's term, is also properly regarded as a tenant at sufferance.85
A tenant at sufferance is not a disseisor,86 and hence he is not, like a disseisor,87 to be regarded as having a fee simple by wrong.88 In this connection there is a diversity to be noted in the position of one who wrongfully holds over after the termination of his es-estate, accordingly as he originally entered under a conveyance or devise to him, or under authority of law. In the former case he is tenant at sufferance, and in the lat83. Co. Litt. 57a; Reckhow v. Schank, 43 N. Y. 448; Cunningham v. Holton, 55 Me. 33. And see Cooper v. Adams, 60 Mass. (6 Cush.) 87. But in McLeran v. Benton, 73 Cal. 329, 2 Am. St. Rep. 81, 14 Pac. 879, and Meier v. Thiemann, 15 Mo. App. 307, the transferee of a tenant at will was regarded as a tenant at sufferance.
84. Zouche's Case, 1 Dyer, 57; Rouse's Case, Owen, 27; Allen v. Hill, Cro. Eliz. 238, pl. 5; Doe d. Thomas v. Roberts, 16 Mees. & W. 780; Wright v. Graves, 80 Ala. 416; Manning v. Brown, 47 Md. 5C6; Harrington v. Sheldon, 196 Mich. 388, 163 N. W. 64; Day v. Cochran, 24 Miss. 261; Criffin v. Sheffield, 38 Miss. 359; Guthmann v. Vallery, 51 Neb. 824, 66 Am. St.
Rep. 475, 71 N. W. 734; 77 Am. Dec. 646; Kenney v. Sweeney, 14 R. I. 581.
85. Wheeler v. Wood, 25 Me. 287; Evans v. Reed, 71 Mass. (5 Gray) 308; Magee v. Gilmour, 18 Can. Sup. Ct. 579; Simpkin v. Ashurst, 3 Tyrw. 781, 1 Cromp. M. & R. 261. But in Pearce v. Ferris, 10 N. Y. (6 Seld) 280, such an undertenant holding over was regarded as a trespasser.
86. 1 Rolle, Abr. 659; Com. Dig. Seisin (F2); Doe d. Bur-rell v. Perkins, 3 Maule & S. 271.
87. Ante Sec. 13.
88. Allen v. Hill, Cro. Eliz. 238, 3 Leon. 152; Rouse's Case, Owen, 27; Tudor's Leading Cas in Real Prop. 1.
A trespasser and disseisor, this according with the familiar rule that one who enters by permission and abuses his right of entry does not thereby become a trespasser ab initio, while if "entry, authority or license is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio.89 So in the case of a tenant at sufferance, his entry not being under authority given by the law, does not become wrongful ab initio, and hence he cannot be regarded as having been guilty of a disseisin.
The tenant at sufferance is not liable in trespass to the lessor or other person entitled to possession until after entry by the latter.90 The reason for this is that the action of trespass is possessory in its nature, being-founded upon an injury to the plaintiff's possession, and proof of an actual or constructive possession in the plaintiff is indispensable Accordingly, at common law, while a man actually disseised can maintain an action of trespass on account of the disseisin itself, he can not, until he enters (provided the right of entry still exists), recover in such action for the subsequent withholding of possession, since, after the disseisin, the possession is no longer in him. After he has entered, or rather reentered, however, he is regarded as having had possession "by relation" from the commencement of the wrong, so as to be able to recover mesne profits.91 So in the case of tenant at sufferance, there is no possible right of action in trespass on account of his taking of possession, since this was by permission, and there is no right of action for the subsequent wrongful withholding of possession, because the possession is in him and not in the person rightfully entitled. Consequently, the right to bring trespass for mesne profits accruing during the period of the wrongful retention of possession by the tenant at sufferance can be supported only after entry by the person entitled to possession, upon the doc-trine of relation.