1 Johns. 322 | N.Y. Sup. Ct. | 1806
Lead Opinion
The title of the lessor of the plaintiff to the premises in question, is not denied, and the only point raised for decision is, whether the defendant was entitled to notice to quit, prior to the commencement of the action.— If. the defendant is to be considered a tenant at will, it has been settled in this court, that notice to quit was not necessary ; if he is to be regarded as a tenant from year to year, notice was requisite, unless he has done some act amounting to a forfeiture of this right. I am inclined to think, that the defendant can certainly be viewed in no more favourable light, than as a tenant at will—He went into possession as a mere occupant, by permission of those under whom the plaintiff claims; there ivas no time limited for the enjoyment, nor any rent reserved, nor has any ever been paid; neither was there any stipulation to pay him for his improvements. Henry Livingston, under whom the lessor of the plaintiff claimed, had stipulated to pay Gideon Morgan (from whom the defendant got the possession) for his improvements. And it also appears, but from the defendant’s own declarations
But admitting the defendant to have been a tenant from year to year, I should think that he had forfeited his right to a notice to quit, by disclaiming to hold under his landlord. It appears that in the summer, previous to the commencement
It also appears, that at the time the declaration in ejectment in this cause was served, the defendant, after some conversation with the witness about his improvements, declared that he had been in possession more than thirty years, and that he meant to keep it. This declaration was, in point of fact, untrue, for he had been there but about eighteen years, and it was setting up in himself a possessory title, in hostility to the right of the lessor of the plaintiff, who, upon the trial, he claimed to be his landlord. It is not denied, that these declarations of the defendant, if they had been made prior to the commencement of the suit against him, would have' amounted to a forfeiture of his right to notice So quit. (Buller N. P. 96.) I cannot discover how their being made after the commencement of the suit, will make any difference. It is not the case of the landlord’s giving notice to quit after the commencement of his suit, where notice was acknowledged to be necessary; but it was deriving testimony from the confession and declarations of the defendant, to show that he had set up a title in himself, which was at war with the one he claimed upon the trial, and thereby placed himself in a situation, that did not require notice to quit. If the defendant be tenant to the lessor of the plaintiff, he is made so by operation of law, and not by any contract between the parties. There was nothing to prevent the defendant from setting up a title in himself, which he did by claiming to hold by virtue of thirty years possession ; his declarations were retrospective, and went to a denial that the relation of landlord and tenant ever existed between him and the lessor of the plaintiff, and that he intended to • rely upon his adverse possession. That the confessions of a party were made after the commencement of the suit, can be no objection to their admissibility, in evidence against him. My opinion, therefore, is, that-the nonsuit ought to be set aside, and a new trial awarded.
The plaintiff was nonsuited at the trial, for not having given notice to quit. After the service of the declaration in ejectment, the defendant made declarations which may amount to a disclaimer of the title; but these declarations cannot aid the plaintiff, he ought to show a complete right to the possession" prior to the day of the demise, and the institution of the suit. It appears that in the summer before, the defendant had refused a lease from John Livingston, saying he had as good a title as he had. This evidence I did not, at the trial, nor do I now think, evidence of a disclaimer, because, the defendant entered under Henry Livingston, and it did not appear that he had any information of the transfer of his title to the lessor. When a party who is tenant, has an indubitable right to notice, and it is sought to deprive him of it, on the ground of disclaimer, he ought to be made connuzant of the right of a third person demanding his possession. On the principle, therefore, that the defendant did not controvert Henry Livingston’s title, and was a stranger to his alienee, I do not think that what he said was such a disclaimer, as to be a waiver of notice to quit, if by law he was entitled to it.— This presents the only remaining- question, whether the estate of the defendant was a tenancy at will, or for years. In the year 1788, the defendant went into possession, under a permission given by Henry Livingston, with leave to erect such buildings as were convenient. After so long a possession, and under such circumstances, it cannot, I think, be doubted, that the tenancy would be from year to year. Christian, in his notes to Blackstone’s commentaries,
Kent, C. J. concurred.
Timmins v. Rowlinson.
Ree v. Lees.
Right v. Darby.
2 Black. Com. 147, 9.
3 Burr. 1609.
Concurrence Opinion
I concur in the opinion that the plaintiff ought to be nonsuited. As the defendant held the premises by permission of the owner, without any agreement as to the tenure, and not for any limited period, or with the reservation of rent, I am disposed to regard him as tenant at will merely. The question then occurs, whether sucha tenant is entitled to notice of the determination of his landlord’s will, before he can be subjected to an action of ejectment ? If in the determination of that question, principles of policy and justice are to have weight; such notice will be deemed indispensible ; otherwise, an indigent tenant might, at the arbitrary discretion of a landlord, without a moment’s warning, at an inclement season; and under circumstances of great embarrassment, be instantly deprived of a home, or submit to the costs of an action; ruinous to him. But upon the ground of authority7, I am inclined to think, that a tenant at will is entitled to a notice to quit. The case of Parker ex dem. Walker v. Constable, 3 Wilson, 25, wheré this point was expressly adjudicated, in favour of the tenant, has not, as I can find, been overruled. In this case a notice of six months was deemed necessary. So where a parol lease for a longer term than three years is made, which the statute of frauds declares shall have no other or greater force and effect than a lease or estate at will, six months notice has been adjudged necessary. Doe ex dem. Rigge v. Bell, Bell, 5 D. & E. 471. The same motives of civil convenience which have induced courts,’of late years, to construe _ estates at will into tenancies from year to year, operates
It is no where said that a notice is not necessary. Elementary writers concur in saying that notice of some kind is necessary, and the true rule tq guide us is, that the notice must be reasonable. The period of six months appears to me to comport with that rule ; and as I find that period adopted in some authorities, and not expressly negatived by any, my opinion is that it ought to be adopted here.
Livingston, J. being related to the lessor of the plaintiff, gave no opinion.
Judgment of nonsuit.