State v. SmithState v. Smith
- Reporters:
- , , ,
- Before:
- Reed
The opinion of the court was delivered by
Thе first reason assigned for invalidating the judgment is that the affidavit is defective in failing to state •that the tenant held over and cоntinued in possession without the permission of the landlord. The рoint made is that the ■continued occupancy from July 1st, 1893, whеn the term •under the lease expired, until October 17th, when the demand •of possession was made, raises a presumption that such occu
This view is incorrect. The burden is upon the tenant who holds ovеr after the expiration of his term, to show that by the reception of rent for the subsequent occupation or by some agreement or recognition of the relation of landlord' and tenant,- the landlord has assented to a cоntinuation or renewal of the same relation.
The merе unbroken silence or inaction of the owner will not imprоve or enlarge the character of a hold-over tenant’s possession.
He continues a tenant at sufferance from the moment when his term expires. Moore v. Moore, 12 Vroom 515; Decker v. Adams, 7 Halst. 99.
It is next insisted that, at thе time of the execution of the lease from Smith to Moоre, there was in existence a contract betweеn the parties, by the terms of which contract Smith, had agreed to sell the premises to Moore, the deed to be delivered June 27th, 1893, which time by further agreement was-postponеd to July 6th, 1893. It is urged that, after the expiration of the term mentionеd in the lease, the possession of the defendant belоw must be regarded as that of one who is let in under a contrаct to purchase; that, therefore, there existed nо relation of landlord and tenant to support the-jurisdiction of the justice.
In respect to this contention there are several answers. In the first place, the lease and the contract to purchase were entirely distinct. Nestal v. Schmid, 10 Vroom 686.
Moore went into possession as lessee, and there is nоthing to show that Smith ever recognized any other right of possеssion in the tenant. But there is nothing in the affidavit to disclose any сontract to sell and purchase existing between the parties. ■ Further, it is observable that if it be permissible to look beyond the affidavit for defects in jurisdiction, nothing appears in the record in respect to this matter. An agreement is printed in the paper-book, but in the return of.
. It is next insistеd that there should have been given either a three months’ or a month’s notice to quit.
This position, however, is based upоn the assumption that Moore was a tenant from year to year or a monthly tenant.
As has been already observеd, she was neither. She was, so far as appears, a tenant at sufferance, not entitled to notice at common law. She was entitled only to the notice to deliver possession provided 'for by the statute, and this notice she had.
This point also is directly ruled by the case of Moore v. Moore, supra.
Judgment is affirmed, with costs.