61 N.C. 514 | N.C. | 1868
The lessor had contracted to sell the land to the wife of the defendant, and they had entered under such purchase. Subsequently they failed to make payment as agreed, and upon 28 August, 1866, possession or themoney was demanded of them. To this the defendant replied, sue me and I will pay you one-fifth, that is all you can get. On the next day this suit was begun. The demise was laid upon 1 (515) August, 1866.
In obedience to an intimation of his Honor's opinion in the court below, the plaintiff submitted to a nonsuit and appealed. 1. The notice was not sufficient. Love v. Edmonston, 1 Ire., 152; Leigh's N. P., 862; Lewis v. Beard, 13 E., 210.
1. The notice was defective as being in the alternative. Doe v. Jackson, Doug., 176; Adams on Eject., 164; Roberts v. Hayward, 14 Eng. C. L., 381. It is admitted that upon the facts stated in the plaintiff's bill of exceptions, his lessor had a right to demand the surrender of the possession of the land mentioned in the declaration, and that, upon the refusal of the defendants to comply with the demand, he might sustain an action of ejectment against them. The only disputed question, which has been brought to our attention in the (516) argument, is whether one day's notice to leave the possession is sufficient, and we are inclined to the opinion that it is not. We think that the occupier ought to have at least time enough to look out for *394 another house and remove to it. It is difficult to say what precise number of days shall be allowed for the purpose, and we will not undertake to decide the question until a case shall arise to call for it. We may take it to be settled that three weeks is long enough because it was so held inLove v. Edmonston, 1 Ire., 152, and again in Butner v. Chaffin, ante, 497; but as the present case must be decided against the plaintiff upon another ground, we shall decline the attempt to determine what time short of three weeks will be upheld as sufficient.
The ground upon which this case must turn is, that the demise in the declaration is stated to have been made on 1 August, 1866, which was twenty-seven days before the possession of the land was demanded of the defendants by the lessor of the plaintiff. In such case the action cannot be sustained as is clearly shown by the case of Carson v. Baker, 4 Dev., 220, where the subject is fully discussed and explained, and the cases ofRight v. Read, 13 East., 210; Birch v. Wright, 1 Term Rep., 383; and Den v.Rawlings, 10 East., 267, are cited and relied upon in support of it. The judgment must be affirmed.
PER CURIAM. Judgment affirmed.
(517)