Wheeler v. Wood

25 Me. 287 | Me. | 1845

The opinion of the Court was drawn up by

Whitman C. J.

This process under the Revised Statutes, c. 128, § 5, is not maintainable by the plaintiff, except the defendant has held under him as lessee, or as tenant at will; the Rev. St. c. 91, § 30, having provided, that “no estate or interest in lands, unless created by some writing, and signed by the grantor or his attorney, shall have any greater force or effect, than an estate or lease at will.” The section of the statute, first cited, was, manifestly, designed to enable landlords more expeditiously to oust tenants, who were reluctant to surrender tenements, in their possession, after they had ceased to have a right of occupation for any further time. A tenant at will has an estate, which must first be terminated, before he will cease to have a right to continue in possession. Such termination may be brought about by his surrendering his tenancy, or by any act inconsistent therewith ; 1 Cruise, 273 ; or by the decease of either party; 4 Comyn, Estates, H. 7; or by making a lease to another; Co. Lit. 57, a ; and by Rev. St. c. 95, <§> 19, by notice in writing for the purpose, by either party, thirty days at least having elapsed thereafter. Till then the tenant would not begin to hold unlawfully ; and could not be liable as for forcible entry and detainer, under the section of the statute first referred to.

But the defendant cannot be deemed to be a tenant at will. While Cowan’s lease was in operation, he might be lawfully in the occupancy of a small part under him. When that terminated, and when Cowan himself had nothing but a tenancy at will, he had no power to underlet. Co. Lit. 57, a. It does not appear, that the plaintiff was ever conusant of a holding by defendant under Cowan. He never had treated him as a tenant or exacted any rent of him. He was, then, a dis-seizor, or tenant at sufferance. He had no estate in the premises ; for a tenant at sufferance has none. He is merely not a trespasser, and the landlord, without ceremony, may, at any time, enter and turn him out. If he resisted manu forti he would be amenable under another branch of the statute of forcible entry and detainer, but not under the fifth section; for it could not be said that his estate had been determined, for he had none under the plaintiff; nor that he unlawfully refused to quit the same; for such refusal could not become unlawful until the plaintiff had attempted to enter, and had been resisted.

Plaintiff nonsuit.