| N.H. | Dec 15, 1861
It is claimed that the defendant was a tenant, at will or from year to yeai’, of the plaintiff in this case, and that the tenancy must be terminated before the plaintiff can maintain this suit. The latter position might be correct if the facts first assumed were true. By Rev. Stat., ch. 209, sec. 5 (Comp. Laws 534), it is provided that every tenancy or occupancy shall be deemed to be at will, &e., unless a different contract is shown. This legal presumption as to the character of the tenancy, only arises where no contract, either written or verbal, is proved.
But, where a contract is shown, the rights of the parties are to be ascertained and governed by the terms of said contract, and while the same remains in force, and the parties act under it, the law will not imply a contract at variance with it. Stacy v. Vermont Central Railroad, 82 Vt. 551" court="Vt." date_filed="1909-11-06" href="https://app.midpage.ai/document/barrels-v-dickinson-6585987?utm_source=webapp" opinion_id="6585987">82 Vt. 551.
In the case before us there is a written contract, the terms of which must govern, and the law will raise no presumptions against that contract. The nature and conditions of the occupancy must be ascertained from the contract alone ; and from the terms of that contract, it is evident that, when the defendant entered, it was not as tenant, but under an agreement to purchase; and, before the time of payment arrived, it is plain that no rent could be recovered, as it was stipulated that the defendant might enter upon and occupy the premises after November 1, 1858, “paying the taxes and keeping the same in repair thereafter.” The idea of a tenancy, or of paying any rent to the plaintiff) could not have been entertained by either of the parties, while this contract was in force and its terms not violated.
In Clough v. Hosford, 6 N. H. 231, it is held that, where the defendant entered upon lands under an agreement to purchase, and there was also the further agreement that, if he failed to purchase, he should pay rent, then trespass could not be maintained for the entry; but that, when there was no such agreement or understanding about paying rent, trespass might be maintained after the defendant had violated his contract by not paying for the land and taking a deed, or that the plaintiff might waive the tort, treat the contract as rescinded, and bring an action for use and occupation. And this is put upon the ground that the defendant, having broken his contract in not paying the money, has thereby avoided the entire contract; and the law holds him, after such failure to pay, as a trespasser, and as guilty of bad faith. And if trespass could be maintained, this action is well enough brought.
But, upon another ground, the defense here relied on can not avail. This action was tried by the court as upon the general issue, no formal plea having been filed. The general issue is nul disseizin, which plea is held to be an admission that the tenant is in possession, claiming a freehold. If he is not in possession, he must disclaim or plead non-tenure general. If he is in possession, but claims less than a freehold, he must plead non-tenure special. A plea of non-tenure of either kind is in the nature of a plea in abatement.
The defendant not having pleaded non-tenure, but standing here
Judgment entered for the plaintiff.