Hanchet v. Whitney

1 Vt. 311 | Vt. | 1828

Hutchinson J.

delivered-the opinion of-the court; This action, which is ejectment for lands in Maryland, comes up. to-this court on the exceptions filed in- the- County Court upon a jury, trial there.

There is virtually, but one question-now- to be decided$, that is, whether the testimony adduced' to show a notice, to- quit was sufficient far that purpose -if believed' by the jury?

No {juestion is how made bat that the defendant, for four or five years. before the commencement of the action, had been tenant at will to his fa» ther of the premises in question 5 and according to the decision of this court in the samé cause a year ago, was entitled to no. ticé to quit before añ action could be maintained against him on account of his possession.

The testimony adduced, for the purpose of showing such notice, appears by the Case to be several instances in which the father of the defendant^ from whom the ¡plaintiff derives his title,- told tile defendant to clear out, to leave the premises: that he would not have him there, &c. and other similar expressions recited in the casei Some of these conversations being more than half a year before the -action w'as brought, and more than -half a year be-fóte tbe first of April, 1826 5 and- the jury having by -their verdict found these facts as testified, under the charge of the court, hy which they wére instructed that, if they believed these witnesses, it Was a sufficient notice to quit; the question -is narrowed down to this, whether these sayings Of Jonathan^'ihb father, amounted to sufficient notice-. - The Objections to'their sufficiency are, that they set no "time fit which the defendant must quit: and further, that they import an immediate quitting, and-allude to no future period whatever. The views of the County Court must have been, that a general annbhncing to the defendant -that he must quit thé premises, -ánd this more than half a ye'a-r before the end of the term. Would be good notice for him to quit-at -the -end of the year.

It is very important that this subject should be regulated by principles, practical in themselves, as well as conformable to law. The authorities cited by the defendant’s counsel, to which may be added 2 Phil. Ev. 182, and on; also, Norris’ Peake, 627, lay down the rule thatnotice must not only-be given half a year beforehand, but that notice must be to quit at a given time, which they call the end of the year. They say a -general notice to quit,at the end of the year, is not sufficient. The parties may differ about the time when the tenancy commenced, and when it should end. A time to quit béing méntioned in the notice, if a wrong time is named, the defendant' may disregard it wholly; for the landlord has no right to compel a tenant under a tenancy from year to year, to quit at any other timé than the end of the year. This is reasonable, and/for the encouragement of industry; as otherwise, the tenant’s crops might not be disposed of, and he would sustain an injury by quilting before the time in which he might well calculate to dispose of his crops, Upon this point the County Court erred in their instructions to the jury. But they correctly'refused to charge as requested about theylefendant’s adverse possession. There was no testimony tending to show his possession ad_ verse to Jonathan, his father, under whom he took possession by contract, and under whom the plaintiff claims.

Everett and Cushman, for defendant, Leland and Hubbard, for plaintiff. .

With regard to the testimony excluded by the County Court— that part relating to Jonathan and Calvin’s continuing to live together after the affrays mentioned were 'over, if the defendant would infer from this a waiver by Jonathan of such notice as he had given,it might be proper to have admitted it; but such testimony was already before the jury, drawn from the plaintiff’s witnesses. That part which relates to Calvin’s always treating the father’s telling him to quit, &cc. as the effect of passion, was correctly excluded. If what was said by Jonathan, from time to time, did not amount to notice, this testimony must be unimportant. If it did amount to notice, the defendant must, at his peril, treat it as notice. It is no excuse for him to say he treated it as the effect of passion. The notice given might be the effect of passion, and yet be a regular notice to quit half a year hence, at the end of the year, and ata time certain. But what was claimed, as notice in this case,contained no fixed time for quilting, nor did it even refer, in general terms, to the end of the year. Therefore, a new trial is granted.