Pickard v. Perley

| N.H. | Jun 15, 1864

Bellows, J.

A notice to quit, given by one assuming to act as the agent of another, but, in fact, having no authority, is not rendered valid as the foundation for summary proceedings under the landlord and tenant act, by a subsequent ratification, unless such ratification be as early as the time such notice is to operate. Until the notice is made effectual the tenant may properly disregárd it; and, indeed, were he to quit the demanded premises in pursuance of such unauthorized notice, he might still be holden to pay rent, inasmuch as he, also, is required to give notice of his termination of the tenancy. Currier v. Perley, 24 N. H. 227.

To hold, then, that a ratification, by the lessor, of the act of such unauthorized agent, made subsequent to the time when the notice was to operate, should relate back to its date, would bemanifestly unjust, and is not, we think, upheld by the authorities. Judge Story, in his work on Agency, sec. 245, lays it down that where an act is beneficial to the principal and does not create an immediate right to have some other act or duty performed by a third person, but amounts simply to the assertion of a right on the part of the principal, then the general rule, referring to the effect of ratification, seems generally applicable. But if the act done by such third person, would, if authorized, create aright to have some act or duty performed by a third person, so as to subject him to damages or losses, or would defeat a right, or an estate, already vested in the latter, then the subsequent ratification or adoption of the unauthorized act by the principal, will not give validity to it so as to bind such third person to the consequences. See, also, Ibid. sec. 246.

This doctrine was applied to notices to quit, in Doe dem. Mann v. Walters, 10 B. &. C. 626; and in Doe dem. Lyster v. Goldwin, 2 A. & E. N. S. 143; Right v. Cuthell, 5 East, 498, 500. The case of Goodtitle v. Woodward, 3 Barn. & Ald. 689, holds that there may be such subsequent ratification of a notice to quit, but this case is questioned by some of the judges in Doe v. Walters, before cited, and besides it is said in note 2 to sec. 246, Story on Agency, that the case of Goodtitle v. Woodward may be supported upon another ground. So, it is held, in Fiske v. Holmes, 41 Maine, 441, that a subsequent ratification will not operate to prejudice intervening rights, or to prejudice a person Who has been guided by the transaction as it actually occurred.

The same principle has been applied in this State to a subsequent assent to the delivery of a deed. Derry Bank v. Webster & al., 44 N. H. 269. Right v. Cuthell, 5 East, 498; was a case of a lease for twenty-one years, with a proviso that either party, their respective heirs and executors, might terminate it at the end of seven or fourteen years, by six months previous notice in writing, under his or their respective hands ; and, on the death of the lessor, two of the three executors, in behalf of themselves and the other, gave the notice, and it was held not to be sufficient; and also, that a subsequent ratification by the other executor joining in the ejectment did not avail, " because the tenant was entitled to such notice as he could act upon with certainty at the time it was given, and was not bound to submit himself to the hazard, whether the third co-executor chose to ratify the act of his companions, or not, before the six months elapsed.”

There are several eases in this State touching a subsequent ratification of the act of one assuming to be an agent; among these are Payne v. Smith, 12 N. H. 34; Gale v. Tappan, 12 N. H. 145; Grafton v. Follansbee, 16 N. H. 450; Ham v. Boody, 20 N. H. 411; Odiorne v. Mason, 9 N. H. 24; Corser v. Paul, 41 N. H. 24; but none of these we think conflict with the views we have expressed.

On the contrary, in the case of Grafton v. Follansbee, where there was a suit against a collector of the town for moneys collected by him, and the plaintiff relied upon a demand by the town treasurer, ratified afterwards by bringing the suit, the court held that although the treasurer had no authority to make a demand, yet as payment to him would have discharged the collector, the subsequent ratification was good. See Stevens v. Reed, 37 N. H. 49, where the doctrine of Payne v. Smith, 12 N. H. 38, was applied to demand of dower by attorney.

Our conclusion, then, is, that the bringing of the suit, or other act, after the time when the notice to quit was to operate, could not be regarded as a ratification, so as to lay the foundation for this proceeding.

Another question, however, arises, and that is, whether a notice by two of the three lessors is sufficient to terminate the tenancy as to all. If the lessors are to be regarded as tenants in common, it must be understood, as in the case of joint tenants, that'each demised his own share and might put an end to that demise so far as it affected his own share, without the concurrence of his co-lessors. Co. L. 186, a; Doe v. Chaplin, 3 Taunt. 120; Doe v. Summersett, 1 Barn. & Adolph. 135.

The notice, then, by two of the three lessors would put an end to the tenancy, in respect to their shares ; and the question would be, whether it would also terminate the entire tenancy, so as to enable all the lessors to join in this proceeding. In Doe v. Summersett, 1 B. & Ad. 135, before cited, Avhich was a demise by íavo joint tenants, it was hold that a notice to quit by one, in behalf of both, Avas sufficient to terminate the tenancy as to all, and it Avasputupontheground, that, although upon a joint lease by joint tenants, each demises his OAvn share, yet the operation of it is, that the tenant holds the whole of all the lessors so long as he and all shall please, and not that he holds the share of each so long as he and each shall please; and that as soon as an3r of the lessors gÍAes a notice to quit he effectually puts an end to that tenancy, and the tenant has a right to give up the Avhole; and unless he comes to a ncAV arrangement with the other lessors, lie is compellable to do so. Lord Tenterden, in giving the opinion of the court, says : " The hardship upon the tenant, if he were not entitled to treat a notice from one as putting an end to the tenancy as to the whole is obvious; for, however Avilling a man might be to be sole tenant to an estate, it is not likely he should be willing to hold undivided shares of it; and if upon such a notice the tenant is entitled to treat it as putting an end to the tenancy as to the whole, the other joint tenants must have the same right. It cannot be optional on one side only.”

The reasoning of Lord Tenterden applies with equal force to the case of a joint lease by tenants in common; for there is the same unity of possession as in the case of joint .tenants, and it would be equally a hardship upon the tenant if he could not treat a notice by one tenant in common, as putting an end to the entire tenancy.

The case of Doe v. Summersett, then, must be considered an authority directly to the point that the notice Avas sufficient in the case before us, unless under our statute a different rule is to prevail. On the other hand, in the case of Doe v. Chaplin, 3 Taunt. 120, wliich Avas ejectment on the demise of three out of four joint tenants, and, also, on the demise of the four, it being stated both Avays, and the defendants having entered into the ordinary consent rule, confessing lease, entry and ouster, a verdict was rendered for the defendant upon the supposed deficiency of the notice to quit, it having been signed by three only of the four lessors. Afterwards, the question being reserved, the verdict was set aside upon the ground that the plaintiff was entitled to recover three-fourths of the demised premises.' In the examination of the question, the hardship to the tenant, in not being allowed to treat the notice of a part of the lessors as a termination of the entire tenancy, was considered, and although it was not expressly decided that the plaintiff could not recover the whole, as is suggested in Doe v. Summersett, yet it is to be plainly inferred from the decision that he could not.

The case of Right v. Cuthell, 5 East, 491, before cited, is to the point, that when, in a lease for twenty-one year's there was a proviso that either party, his heirs, or executors, might terminate it at the end of seven or fourteen years, by a notice in writing under his or their respective hands, a notice signed by two of the three executors of the lessor vvas insufficient. See also Taylor’s Landlord & Tenant, sec. 479.

So it is laid down that if joint tenants join in a feoffment,every one of them in judgment of law doth give but his part, and, therefore, if two joint tenants make a feoffment in fee upon condition, and for breach thereof, one of them shall enter into the whole, yet he shall enter but into a moiety, because no more in judgment of law passed from him. Co. L. 186, a.

By the Compiled Statutes, ch. 222, secs. 1 and 6, any lessor or lessee, may determine any lease at will, or tenancy at sufferance, by giving a notice in writing, to take effect at a day named ; and bearing in mind, that, although several joint tenants, or tenants in common, join in a lease, yet each demises only his own share, we think that the weight of authority is against the decision of Doe v. Summersett, and that a notice to quit by one of the tenants in common will put an end to the lease only as respects the share demised by him.

It is true, that this rule might operate as a hardship upon the tenant where he would be unwilling to hold a share only of tire demised premises, and could not give notice of a termination, at the same time, of the entire lease, to the other lessors. On the other hand, cases might often arise where it would be for the interest of the tenant to continue to hold the remaining share, and where he would elect to do so if in his power. To hold, then, that a notice to quit by one of several lessors must terminate the entire lease, might be a great hardship to the tenant, as it might compel him to give up what it would be for his interest to hold, and what he had not been called to surrender by the owner.

If the lease by joint tenants or tenants in common be in the usual form it will be regarded as a demise, by each, of his own share only, and for aught we can see, must, upon authority, stand much upon the same footing as separate leases, so far, at least, as respects the question before us. If, on the other hand, the lease was to be regarded as a joint demise by all, then a notice by all would seem to be necessary to determine it, for it can hardly be concluded that a joint demise could be determined by a single lessor unless so stipulated.

Whether, in any case of a joint lease, and a notice to quit by one of the lessors, the tenant might not at-his election give up the whole at the time appointed, upon the ground that he ought not to be required to hold a part only, we need not now enquire, as we are of the opinion that the notice to quit by one only of several lessors will ordinarily terminate the lease only as respects his share.

In the case of Doe v. Chaplin, the lessors were trustees, and the notice to quit was signed by three out of the four, and also by the cestui que trust as it would seem; and in Right v. Cuthell, 5 East, 491, the. original lessor was represented by three executors, two of whom only signed the notice; and no distinction was attempted tobe made, in either case, upon the ground that the lessors were merely trustees. Whether in any case a distinction could be made, it is notnecessary now to decide.

The fact that the defendant did not object to the notice when it was delivered might be prima facie evidence of the authority of Butler, but it was liable to be rebutted by showing the want of such authority.

It is contended by the plaintiff’s counsel that it is immaterial whether one of the plaintiffs was shown not to have assented to the notice, provided he assented to the employment of Mr. Butler to obtain possession of the desired premises, and this may be true, and still as part of the defence it would be competent to show want of assent to the notice. With these views, therefore, we think the evidence of want of assent was admissible.