Hazeltine v. Colburn

31 N.H. 466 | Superior Court of New Hampshire | 1855

Bell, J.

It has been long settled, at common law, that a tenant at will, from year to year, is entitled to half a year’s notice to quit, and that such notice must terminate with the day on which the year expires. If the tenancy was at wrill from quarter to quarter, or from month to month, the length of the notice might be equal to the interval between two of those periods, as a quarter or a month ; but the notices, in such cases, must also terminate with the quarter or month. Com. Land. & Tenant 285; 4 Kent’s Com. 112.

Before the passage of our statutes, on this subject, in 1831, this was the law here. And the common law still regulates the rights of lessors and lessees, except in those cases where the statutes have introduced changes. By the Revised Statutes, the provisions of the earlier statute were somewhat modified and extended. The great object of both was to provide a speedy remedy for the removal of tenants, where they attempted to hold possession after their right to the occupancy had ceased, by a written notice to quit, and an action before a j ustice of the peace.

At common law, every tenancy at will might be presumed a tenancy from year to year, the presumption being, in England, most frequently applicable to agricultural property. But here, but little property being in fact held by tenants, except buildings in towns and villages, which are not usually let for long periods without written leases, a different rule of presumption is introduced by the Revised Statutes, every tenancy being presumed to be a lease at will, and the rent payable on demand, unless a different contract is shown.

The changes designed to be made in the common law rules, in relation to notices to quit, may be readily seen, and they seem to us but two. The length of time required to make a notice effectual is shortened. Three months notice is made sufficient in all cases, (instead of half a year,) and if the rent is payable more frequently than once in three months, thirty days notice is made sufficient; and if the tenant refuses or neglects to pay the rent due and in arrear, seven days notice is sufficient. The notice to quit may be made to quit at any day therein named, instead of the precise termination of a year, quarter, month, &c., though it is still clearly the interest of the landlord that it should terminate with the pay day of the rent, because if he, by his own act, puts an end to the tenancy after the pay day, and in ■the midst of a year, quarter, &c., it is at least doubtful if he could recover any rent between the last rent day and the expiration of the notice.

In other respects, we discover no intention to change the common law rules. These changes we regard as equally applicable, whether the question arises in an action at common law or under the statute. In the latter case, to render a notice to quit effectual, it must be in writing, which is not required in any common law proceeding. In all other particulars, the rules of the common law, in relation to these notices, are still the rules to which we have to refer, in all cases of doubt, so far as we have observed.

By the third and fourth sections of chapter 209 of the Revised Statutes, the remedy before applicable to estates at will, was extended to two cases, where the lessee holds under a written lease, the case of a breach of condition and the case of holding over after the term has expired. In these cases, seven days notice is made sufficient, and, we think, the notices, in these cases, are to be governed by the same rules as in case of leases at will. Such notices were, in no case, required at common law; Cobb v. Stokes, 8 East 358; Messenger v. Armstrong, 1 D. & E. 54; and they are required here only where the landlord desires to avail himself of the statute remedy.

At common law, it was not only allowed, but it was indispensably requisite that the time on which the tenant was notified to quit, should be the last day of his year, quarter, &c., and there is not the slightest ground in the statute to believe that the Legislature could have intended to make a change, by which the notice should not terminate on that day. It is obviously the interest of the landlord, in the case of a written lease, to make his notice expire with the termination of the lease. The only effect of such a notice is to entitle the landlord to avail himself of the statute remedy; and we should not readily adopt the opinion that the Legislature intended to make a difference, in this respect, between these cases. And on reading the section relating to this case, (§ 4,) we see nothing which necessarily or naturally carries the impression which seems to be assumed, that notice cannot be given until a holding over has commenced. It may as well and as naturally be read: “ If any lessee shall hold over after the expiration of a definite written lease, seven days notice [before the expiration of the lease} shall be sufficient, as seven days notice [after the expiration of the lease] shall be sufficient. The object of the provision was to require a notice of seven days, without any provision as to its beginning or end, which would leave it subject to the rule of the common law, which would make the notice ineffectual, if he was required to quit when he had a right to stay, and would make it sufficient, if it required the party to quit at any time when the landlord had a right to require him to leave. A notice, then, to a tenant, to quit on the last day of his lease must be valid, because he has no right to be there afterward, and, of course, a notice, as in this case, to leave on the ninth day after the lease expired, must be free of exception.

We have examined with care the ingenious argument of the counsel for the defendant, but are not satisfied, from any thing we find in the act, that the Legislature intended to introduce any change in the requirements of the common law, relative to the mode of serving notices to quit. No apparent design of this kind is seen, nor is any such change necessary or useful for any purpose contemplated by the act. The argument is based upon the first section of the chapter, which provides for determining leases at will. That is not this case. Here was no lease at will to be terminated. All that is said as to notice, in cases of holding over after a definite written lease, is that seven days notice shall be sufficient,” without a word as to the manner of service of such notice. The argument has clearly no application to this-case. And'we are left.by the statute to ascertain, from the well settled rules of the common law, what is to be deemed “ seven days notice.”

The rule of the common law, on this subject, is laid down in Comyn on Land. & Tenant 320, thus: “ It is not necessary that the notice, if in writing, be personally served on the tenant. It is sufficient, if it be left at his house with a servant, from which it will be presumed that it reached the tenant. In order to raise this presumption, in the absence of proof, that it reached the tenant, it must be shown to have been delivered into the hands of a servant, and not merely that it was left at his house. The same point is held in Jones v. Marsh, 4 D. & E. 464, and see the authorities cited for the plaintiff.

In Smith v. Clark, 9 Dowl. P. C. 202, it was held that if a notice to quit is served on the tenant’s wife, at the house, accompanied with a statement that the paper delivered is a notice of discharge, it is sufficient. See Pulteny v. Shelton, 5 Ves. jr., 261, note; Doe v. Dunbar, M. & M. 10; 2 Steph. N. P. 1412; Doe v. Watkins, 7 East 553; 2 Bouv. Inst. 265; 2 Leigh. N. P. 867.

Upon these authorities, we think, the evidence of the service should have been submitted to the jury.

New trial.