60 Wis. 1 | Wis. | 1884
Here there was a specified annual rent stipulated for in the original lease. The same is true under the lease as modified during the last year of the term. This is one of the essential elements of a tenancy from year to year. Rich v. Bolton, 46 Vt., 84. “ If there be a lease for
Beyond question, it was the well-settled rule of the common law, that where there is a lease for any specified period, at a stipulated annual rent, and the tenant holds over after the expiration of his term, with the assent of the landlord, who continues to receive rent at the stipulated rate, the law implies a tenancy from year to year. Doe v. Porter, 3 Term, 16; Doe v. Bell, 5 Term, 471; Bradley v. Covel, 4 Cow., 350; Jackson v. Salmon, 4 Wend., 327; Conway v. Starkweather, 1 Denio, 113; Pugsley v. Aikin, 11 R. Y., 494; Schuyler v. Smith, 51 N. Y., 309; Laughran v. Smith, 75 N. Y., 205; Clarke v. Howland, 85 N. Y., 204; Wilt v. Mayor of N. Y., 6 Robt. (N. Y.), 441; Hall v. Myers, 43 Md., 446; Ames v. Schuesler, 14 Ala., 602; Gardner v. Commissioners, 21 Minn., 33; Williams v. Ackerman, 8 Or., 405; Stedman v. McIntosh, 4 Ired. Law, 291; Den v. Drake, 14 N. J. Law, 525. And this was so, notwithstanding the annual rent specified was payable monthly or quarterly. Richardson v. Langridge, 4 Taunt., 128; Laughran v. Smith, supra; Pidgely v. Stillwell, 25 Mo., 570. In this state it is expressly declared by statute that “ if a tenant for a year or more shall hold over after the expiration of his term, he may, at the election of his landlord, be considered a tenant from- year to year, upon the terms of the original lease.” Sec. 2187, R. S.; Koplitz v. Gustavus, 48 Wis., 48. This statute is in confirmation of the common law rule, Such holding over and payment and acceptance of rent without
Here it is conceded that the the tenancy in question was from year to year. “ A tenancy from year to year,” said Lord Kbnyou, O. J., continued “so long as both parties pleased. As between the original parties, as long as both of them lived, he (the tenant) could not have been dispossessed without six months’ notice, ending at the expiration of a year.” Doe v. Porter, supra. Subsequently, Lord EllenboRougii, C. J., declared that the rule requiring a half year’s notice to terminate such a tenancy, had existed ever since the time of Henry VIII. Doe v. Spence, 6 East, 123. There can be no question but what this is the settled rule of the common law. Doe v. Smaridge, 7 Q. B., 957; Tress v. Savage, 4 El. & Bl., 36; Hanchet v. Whitney, 1 Vt., 311; Currier v. Perley, 24 N. H., 224; Hall v. Myers, 43 Md., 446; Prickett v. Ritter, 16 Ill., 97; Stedman v. McIntosh, 4 Ired. Law, 291; Den v. Drake, supra; Den v. Blair, 15 N. J. Law, 181; Bradley v. Covel, supra; Witt v. Mayor of H. Y., supra. It is also well settled by the common law, that such notice must be six months before, and ending with, the current year. Hanchett v. Whitney, supra; Reeder v. Sayre, 70 N. Y., 180; Wood’s Landl. & T., 78, note 10.
Of course, the common law as to a tenancy from year to year and notice to quit, is in force in this as well as other states, except in so far as it has been changed or modified by statute. Coburn v. Harvey, 18 Wis., 147; Kellogg v. C. & N. W. R'y Co., 26 Wis., 272; Spaulding v. C. & N. W. R'y Co., 30 Wis., 116; Currier v. Perley, 24 N. H, 219; Wood’s Landl. & T., 78, note 10. Has the' rule thus settled by the common law, as to the requisite notice to terminate a tenancy from year to year, been changed or modified by our statute?
A tenancy at wdll or by sufferance, created in any manner,
Several New York cases more or less conflicting have been cited by counsel, but it stands confessed that there is no statutory provision in that state similar or equivalent to sec. 2187, which, as we have seen, intentionally withheld a tenancy from year to year from being a tenancy by sufferance or terminated by one month’s notice. Besides, the New York statute expressly provided that “ whenever there is a tenancy at will or by sufferance, created ly the tenant's holding over his term or otherwise, the same may be terminated by the landlord’s giving one month’s notice in writing to the tenant, requiring him to remove therefrom.” 2 R. S. of N. Y. (6th ed.), 1126, § 7; 1 R. S. of N. Y. (Edmond’s ed. 1863), 696, § 7. Instead of the words “created by the tenant’s holding over his term or otherwise,” in this New York statute, our statute is “created in any manner.” Sec. 2183, R. S. This change in the language of the section
The only doubt we have had upon the subject is whether such tenancy from year to year might not be regarded as a leasing for more than one year by parol, and hence void under the statute of frauds. R. S., secs. 2302, 2304, 2307, subd. 1. It would seem to be a sufficient answer to this suggestion to say that the statutes (sec. 2187) having expressly continued in force in this state such tenancies from vmar to year as are created by the tenant’s holding over after the expiration of his term, at the election of the landlord, the other sections referred to should not be so construed as to prevent the creation of any such a tenancy in that way. But the language of the prohibitory sections is that “ no estate or interest in lands, other than leases for a term not exceeding one year, . . . shall be created,” etc. (sec. 2302), and “ every contract for the leasing for a longer period than one year ... of any lands , . . shall be void,” etc. Sec. 2304. Here, the tenancy from year to year was not a lease for a “ term ” exceeding one year, nor a leasing for a longer “period” than one year. On the creation of such tenancy by the holding over, payment and acceptance of rent, the term was certain only for one year liable to be terminated in the manner indicated. If it was not so terminated, then it became certain for the term of another year, but for no longer period. Koplitz v. Gustavus, 48 Wis., 48. True, such failure to give
By the Goiort.— The judgment of the circuit court is affirmed.