Whitney v. Swett, 22 N.H. 10

Whitney v. Swett

22 N.H. 10 | Superior Court of New Hampshire | 1850

Bell, J.

No estate or interest in lands can be created or conveyed without writing, but an estate at will. N. H. Rev. Stat. ch. 130, <§> 12. It is therefore immaterial how the existence of a tenancy is shown, whether by parol evidence, or by written instruments, as receipts for rent, or the like; the right of the tenant, whatever might seem to be the actual contract of the parties, is nothing but a tenancy at will unless it can be shown, that some other or higher interest or estate, as a tenancy for life or years, was created or conveyed by writing. The rilling of the Court was therefore correct, that, in the absence of any writing to create or convey another estate, the plaintiff’s inte rest in the property in question was only that of a tenant at will.

The Revised Statutes, ch. 209, <§> 1, provide, that “any lessor or owner of any lands or tenements may at any time determine any lease at will, by giving to the tenant a notice in writing to quit the same at a day therein named,” and by § 2, if any tenant or occupant neglects or refuses to pay the rent due and in arrear upon demand, seven days’ notice shall be sufficient.

It appears, by the case, that the rent was payable quarterly; that a quarter’s rent was due September 19,1847, and was not paid ; that it was demanded on the 11th of October, and on that day a notice was given to the plaintiff to quit the premises on the 20th of October. This was- a sufficient notice, and the tenancy was by that notice terminated on the 20th. After that day the plaintiff was a trespasser; and his goods were damage feasant, and the owner had a clear and perfect right to go into the house with suitable assistants, and there, peaceably and quietly, without breach of the peace, remove the goods to a near *14and convenient distance, and there leave them for the use of the owner, doing them no unnecessary damage.

The power thus given by the law is one liable to great abuse, and therefore must be strictly pursued. A man may become a trespasser al initio, not only by using an authority, which the law gives him for improper purposes, or by pushing the exercise of it beyond due limits, but by exercising it in an illegal and improper manner to the prejudice of another. Barrett v. White, 3 N. H. Rep. 210; State v. Moore, 12 N. H. Rep. 42.

There was evidence tending to show, that the property in this case was removed in an improper manner; as, that the carpets were torn up without removing the nails, and that the goods were deposited in a place not suitable; as, beds upon the ground, &c. If this evidence was credited by the jury, the defendant was a trespasser without any legal justification, and the rule of damages given to the jury was the only one which ought to govern them.

The question arising upon the testimony of the witness, Head, was properly referred to the jury. By the notice of the 11th of October, the plaintiff’s tenancy would terminate upon the 20th, but it was competent to the defendant to waive the notice, which would leave the parties in the same position as if no notice had been given.

Such waiver may be unqualified, or it may be conditional. If the defendant accepted Head’s personal agreement to be surety for the rent, or to furnish security, that was an unqualified waiver. If Head was merely an agent of the plaintiff, doing his business, and speaking in his behalf alone, then the waiver, if any, was conditional; to take effect if the security was furnished in a reasonable time, and not otherwise. As there was no security in fact furnished, the agreement to ,waive the notice, if it was of this conditional character, fell to the ground.

In the wray in which Head gave his evidence, it was open to doubt, which of these was the actual view of the. parties. This doubt does not arise upon the meaning, the force, and construction of the language, for that it would be the duty of the Court to interpret. But it depends upon the question, whether the *15words are to be deemed tbe words of Head in his own behalf, or the words of the plaintiff alone, spoken for him by his agent. This question of fact depends not so much on the meaning of what was said, as on a just consideration of all the facts and circumstances in evidence bearing on the question of Head’s agency, and the intention and understanding of the parties, as to what took place between them.

The case, so far as appears, having been properly and fairly tried, and the rulings and instructions of the Court being correct and proper, there is no foundation for the motion to set aside the verdict. Judgment for the plaintiff.