Chamberlin v. Donahue, 45 Vt. 50

Chamberlin v. Donahue

45 Vt. 50 | Vt. | 1872

The opinion of the court was delivered by

Redfield, J.

This suit was ejectment to recover possession of plaintiff’s homestead in Peacham.

The plaintiff resided on her homestead with an unmarried daughter, and while she was temporarily absent at Bradford, on a visit to her married daughter, the defendant intermarried with the maiden dáughter, on the 8th of May, 1863. The plaintiff returned- to her home in November, 1863, and occupied the house about a year, the defendant living in the house with the daughter. The daughter, up to the time of her marriage, lived with the plaintiff as a child and member of her family, without any contract or understanding as to her relation with the plaintiff; and after her marriage, the same relation continued as to herself and husband. After living so together for about a year, the plaintiff requested her attorney to make an arrangement with the defendant, either to buy, rent, or quit, the premises. He declined to make any arrangement.

The plaintiff then brought two successive suits in ejectment, and one in assumpsit for rent; all of which failed on technical grounds. Before commencing this suit, the plaintiff, on the 9th of May, 1870, caused notice to be served on the defendant to quit the premises on'the 15th of November following. The court find from the evidence, that the defendant was not tenant of the plaintiff, but that he had simply lived in her family, and on the premises, as the daughter had before her marriage. The relation between the parties — whether the defendant was in possession of the plaintiff’s premises as tenant, or otherwise — was a fact, and when found, is conclusive. But it is claimed by the defendant that the special facts found by the court, show that the defendant was tenant at will, and that this relation had been so continual that it had grown into a tenancy from year to year.

*55When plaintiff’s brother and her attorney, Mr. Hale, undertook, in her behalf, to make some arrangement with defendant, he expressly refused'to lease or vacate the premises. “No notice^ to quit is ever necessary, unless the relation of landlord and tenant subsists. If one in possession repudiates the relation of tenant to his landlord, no demand of possession or notice to quit is necessary.” 1 Washb. Real Prop. 394, § 12. “An agreement to pay rent on the part of the tenant, is regarded as an essential element of a tenancy from year to year.” Ib. 396, § 3. There would seem no ground or reason for claiming that the defendant was in possession as tenant .from year to year. And at the time he refused to vacate the premises or pay rent, he was liable to ejectment without further demand or notice. But he was suffered to remain in possession after he had thus defied the owner for some two years, until the commencement of the first suit in ejectment in May, 1867 ; and it is claimed that he should be regarded as entitled to the privileges of a tenant at will, although, without right, he held possession against the will of the owner. But a tenancy at will may always be determined by any act or declaration inconsistent with the continued voluntary relation of landlord and tenant: the assertion of title to the possession of the land ; “threatening to take legal means to recover the premises, determines the will.” 1 Washb. Real Prop. 384-5, §§ 8, 9, 10. “A demand of possession, without notice to quit, is a sufficient determination of the will.” Doe d. Roby v. Maisey, 8 B. & C. 767. Doe d. Price v. Price, 9 Bing. 356. In the latter case, the defendant (a brother of the plaintiff) had been let into possession, without any agreement, and had continued to occupy and crop the land for fifteen years. The plaintiff, by-his attorney, wrote a letter to the defendant in these words : “Unless you pay what you owe me, I shall take immediate measures to recover possession of the property.” It was held a tenancy at will, and that the notice determined the will. Ch. J. Tindal says, in giving judgment: “Anything which amounts to a demand of possession, although not expressed in precise and formal language, is sufficient to indicate the determination of the landlord’s will.” This defendant had not been quietly in possession for fifteen *56years, as in Doe v. Price; but less than half that term. The plaintiff had not only threatened legal measures to obtain the possession, but had been constantly using the “process and machinery of the law to obtain the possession of her property; and, thus far, baffled by the defiant insolence, of the defendant and the subtlety of his counsel. The defendant, if tenant at will, would be entitled to the emblements, if he had any ; but in this case, he had six months’ notice, and more than he could legally claim.

But, we think that, whether the defendant was in possession by his “implied license,” .or as tenant at sufferance, or at will, the relation was determined by the suit in ejectment instituted in May, 1867 ; and that, after that, he withheld the possession from the plaintiff wrongfully. The court allowed him to enjoy the emblements without paying rent, until the 18th of November following, which is a leniency, even to the utmost limits allowed by the “common law of England,” which the defendant so stoutly invokes.

The judgment of the county court is therefore affirmed. i