26 N.C. 291 | N.C. | 1844
Ejectment, commenced 19 November, 1842. On the trial the plaintiff gave in evidence an instrument executed by the lessor of the plaintiffs in these words:
"I have this day agreed with Roderick McIntosh to let him occupy the house now in his occupancy on my lot at the rate of fourteen dollars per annum, rent to commence on 26 October, 1841, he having settled with me for the rent up to that time. In case Mr. McIntosh should desire to remove the house before October, 1842, he is to pay me only for the time he occupies the house while on my lot, at the (292) *222 rate above named. I hereby acknowledge I put no claim to the house. All I contend for is the rent for the land. In witness whereof, I hereunto set my hand and seal, 9 September, 1841."
The plaintiff then proved that the defendant was in possession of the premises owned by him and mentioned in the declaration, being the same lot referred to in the said instrument at the time of serving the declaration, and that in July, 1842, and before 20th of that month, the lessor of the plaintiff verbally informed the defendant that he wished him to leave the premises as soon as he could, and that he must leave at the expiration of his time, to which the defendant replied that he was as anxious to get away as the lessor of the plaintiff was to have him away, and that he would leave as soon as he could.
Upon this evidence the defendant's counsel moved his Honor to nonsuit the plaintiff, insisting that the said lease constituted between the parties a tenancy from year to year, and that the plaintiff had not shown that the said tenancy was by any legal mode terminated at the commencement of the action. The motion was opposed by the counsel for the plaintiff, contending (1) that the defendant was not a tenant from year to year, but a tenant for one year, or for a term ending October, 1842, at which time the tenancy expired without any act to be done by the plaintiff; (2) that if not such a tenancy for a fixed term, it was a tenancy at will, strictly, and the notice served had terminated the tenancy; and (3) that if a tenancy from year to year, yet the notice given, coupled with the declaration of the defendant, was sufficient to terminate the tenancy, which was at an end before the commencement of this suit.
His Honor declared himself of opinion that the plaintiff had made out no case and ought to be called. In submission to this opinion, the plaintiff suffered judgment of nonsuit to be entered, and appealed.
The only question presented in this case is as to the true construction between the parties. This paper was executed on 9 September, 1841, and the action was brought on 19 November, 1842, the plaintiff having given the defendant notice to quit in July preceding. On the trial of the cause it was contended by the defendant that this was a tenancy from year to year, and that the tenancy could not be put an end to by the lessor without giving to the tenant six months' notice to quit; and his Honor who presided being of this opinion, the plaintiff submitted to a nonsuit and appealed to this Court. In the opinion of his Honor we think there was error. The true inquiry is, not as to the nature of the estate or interest which the defendant acquired in the premises, but *223
whether by the contract the plaintiff could bring this action without (294) a previous notice to quit. We think he could, or if any notice was necessary, that which was given was sufficient. Anciently, where a man entered into land with the consent of the owner, and no express time was limited for its termination, it was, by the strict letter of the law, a tenancy at will, and either party might put an end to it at his pleasure. This tenancy was fraught with much mischief, and its operation was often oppressive and unjust to the tenant, for he might be turned out of possession before his crop was fit for harvesting, and though the law gave him the right to enter and carry off his crop when ripe, still it subjected him to great inconvenience. It was also contrary to the policy of the State, which is in nothing more concerned than in protecting and cherishing the proper cultivation of the soil. Courts of justice, therefore, early viewed with strictness an estate fraught with so much injury to the interests of agriculture. Lord Kenyon, in Martin v.Watts, 7 Term, 79, says: "As long ago as the time of the year-books, it was held that a general occupation was an occupation from year to year, and the tenant could not be turned out without reasonable notice." It is now considered as settled law that wherever the relation of landlord and tenant exists, without any limitation as to time, such tenancy shall be from year to year, nor shall either party be at liberty to put an end to it unless by a regular notice. Legg v. Strudwich, 2 Salk., 414; Timminsv. Rowlinson, Burr., 1609; Martin v. Watts, 7 Term, 79. And it is also settled that this notice must be given six months before, and ending with the period at which the tenancy commenced. Doe v. Porter, 2 Term, 3. The courts, therefore, lean against construing leases to be at will, and in favor of their being from year to year; and so strongly has this disposition been felt that it has been decided in a court of very high authority that at this day a tenancy at will cannot be created. 7 Johns., 3. This, however, is carrying the doctrine too far. Both in England and in this State it has been held, and is now settled, that an estate at (295) will, strictly speaking, can be created (5 Tyrw., 753), and so by express contract between the parties. Richardson v. Lavgridge, 4 Taunt., 148; Humphries v. Humphries
PER CURIAM. Reversed.
Cited: Jenkins v. Mfg. Co.,