8 Cow. 226 | N.Y. Sup. Ct. | 1828
The questions to be decided are, 1. Whether the relator was tenant for years within the meaning of the statute ? and 2. Whether the acts proved amount to a forcible detainer ?"
According to these authorities, the relator was tenant for years, within the meaning of the statute; and has, therefore, sufficient interest.
The next question is, whether a forcible detainer was shown. On this subject the law is, that the same circurdstances of violence or terror which will make an entry forcible, will make a detainer forcible also; and whoever keeps in the house an unusual number of people, or unusual weapons, or threatens to do some bodily hurt to the former possessor if he dare return, shall be adjudged guilty of a forcible' detainer, though no attempt be made to reenter. (Hawkins, P. C. ch. 64, s. 30; 3 Bac. Abr. 253.) Whether threats were used in this case, was a question for the jury. One witness heard the defendant say to the relator, it would not be well for him if he ever came upon the premises again by day or night. Another witness
Another objection is, that the judge improperly excluded the defendant’s deed. It has often been decided that the title is not to be investigated,- on the trial of an indictment for forcible entry and detainer. But it is said the deed would have contradicted the witness, who testified that the premises were excepted. Whether the deed contained an exception or not, it could alter the rights of the parties in no respect. It was admitted that the letting was
I do not understand that the decision of the judge is now questioned, that upon an indictment for a forcible '••entry and detainer, the jury may convict of a forcible detainer
I am of opinion that the motion for a new trial must be denied.
Hew trial denied.
See 2 New York Revised Statutes, (4th ed., Banks, Gould & Co., 1852,) page 752, et seq.
The New York Revised' Statutes narrow the term to one year. 2 N. Y. Rev. Sts., 4th ed., (Banks, Gould & Co., 1852,) p. 316.
Under the former statute, parol leases for more than three years were declared to have the force and effect of leases or estates at will only. 1 R. L. 18, sec. 9.
This provision was deemed unnecessary, and was, therefore, omitted in the revision. The construction of the statute is not changed by the omission. The revisers on this subject remark: “The first part of the 9 th section is unnecessary, since persons taking possession of lands under a parol grant, or by livery and seisin, in cases where written conveyances are required, as they acquire no title, will of course be tenants at will.”
The meaning of the statute is, that a parol lease for more than one year is entirely void, that is, void for the purposes for which it. was given, and, therefore, shall not operate to create a term or interest in the lessee for the time mentioned; but still the lessee, under such an agreement, would be a tenant from year to year, on his entering into possession, and, as such, accountable in an action for use and occupation for the rent agreed upon. And notwithstanding such lease is void, the tenant may hold under it, though it be for more than one year; and it is valid to regulate not only the rent, but the time when the tenant is to quit, &c. Thus, it has been held that where a tenant enters and holds under a parol demise for seven years, it enures as a tenancy from year to year. So where a tenant held for two or three years under a parol demise for twenty-one years, he was considered a tenant from year to year. Strictly speaking, the lessee in these cases is a tenant at will, but the law construes tenancies at will, for the purpose of notice to quit, to be tenancies from year to year.
Under the former statute, which legalized parol leases, “not exceeding the term of three years from the making thereof” it was held that a lease for three years by parol, to commence in future, was void; but a lease by parol for a year and a half, to commence one year from the time of contract, ing, was held valid, on the ground that the term did not exceed three years from the making. And where land was leased for a year, and so from year to year, as long as both parties pleased, this was adjudged to be an agree-
By the Revised. Statutes, (vol. 2, p. 508, see. 3,) the complaint to be made to the judge is to be accompanied with an affidavit of the forcible entry and detainer, and that the complainant has “ an estate of freehold or for term of years in the premises then subsisting, or some other right to the possession thereof, stating the same; ” and the judge is thereupon to issue a precept, &c. By the 11th section of this act, it is provided that on the trial of the traverse, the complainant shall only be required to show, in addition to the forcible entry or detainer complained of, “ that he was peaceably in the actual possession of the premises at the time of a forcible entry, or was in the constructive possession of the premises at the time of a forcible holding out.” The only defence allowed to the defendant on the traverse is the denial of the forcible entry or'forcible holding out, or showing that he or his ancestors, or those whose estate he has, have been in the quiet possession of the premises three whole years together next before the inquisition found, and that his interest is not determined. 8. 6 & 11 s.; The People v. Van Nostrand, 9 Wen. 52.
These new provisions very properly bring back the statute of forcible entry and detainer, among the most valuable of our remedial statutes, to the original intent and purpose for which the numerous English acts, of which our old statute was substantially a copy, were passed, to wit, to prevent individuals from doing themselves right by force, and to protect persons in the peaceable occupation of lands from a forcible dispossession without the authority of law. 4 Black. Com. 148; 1 Hawk. 214. The construction of the English statutes by their courts, and which had been followed here, had narrowed down the remedy under them to cases where the relator was seized of a freehold, or was possessed of a term for years, and the consequence was in every other instance of a forcible entry or detainer, so far as this remedy was concerned, the wrong doer, though he entered by force and without right, was preferred to the quiet occupant thus dispossessed; for if the former could show on the traverse that the latter had no estate within the purview of these acts, as thus construed by the courts, he was entitled to the verdict. Ib. N. Y. Dig., p. 1198, Nos. 2, 3.3