48 Me. 570 | Me. | 1861
The opinion of the Court was drawn up by
According to the facts, as reported, the petitioners were tenants at will of the defendant. B. S., 1841, c. 95, § 19.
It was held in Ellis v. Paige, 1 Pick., 43, that a tenant at will is not entitled to notice to quit, and that the tenancy is determinable at the will of either party. The Supreme Court of Massachusetts were divided in opinion in that case, as appears in Coffin v. Lunt, 2 Pick., 70, but the principles of that decision were fully affirmed in this State, in Davis v. Thompson, 13 Maine, 209, in which Weston, C. J., uses the following language: — “It results, as incident to a tenancy at will, that it may be determined at the will of either party; and that neither is to give notice of a future day when the estate shall determine.” That either party might at pleasure terminate a tenancy at will, is again recognized as unquestioned law, by Shepley, J., in Moore v. Boyd, 24 Maine, 243. In a strict
In the revision of our statutes, in 1841, a new provision was inserted. By c. 95, § 19, it was enacted “ that all tenancies at will may be determined by either party, by three months notice, in writing, for that purpose, given to the other party; and, when the rent, due upon such lease, is payable at periods of less than three months, the time of such notice shall be sufficient, if it be equal to the interval between the days of payment; and, in all cases of neglect, a refusal to pay the rent, due on a lease at will, thirty days notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the lease.”
By § 20 the limitations in the preceding section were declared inapplicable to cases of forcible entry and detainer.
• In construing the provisions of this Act, it 'was held, in Smith v. Rowe, 31 Maine, 212, that the tenancy continued till the expiration of the time specified in the notice, and that the tenant’s occupation is lawful till it has elapsed. In Dutton v. Colby, 35 Maine, 505, it was decided that the notice to quit, upon which the process of forcible entry and detainer by R. S., 1841, c. 125, § 5, is founded, cannot be given before the estate at will has been first determined.
It would seem to follow, from these decisions, that the tenant would be liable for rent during the time of the notice given for the determination of his estate,- whether he occupied it or not. “ The statute,” remarks Wilde, J., in Creech v. Crocket, 5 Cush., 133, “ was intended to prevent the sudden termination of a tenancy at will, by one of the parties, against the will of the other, in cases where there was no valid agreement for its termination otherwise.” The Revised Statutes of Massacllusetts, enacted in 1836, c. 60, § 26, contain provisions almost identical with those of our revision of 1841, c. 95, § 19, to which Mr. Justice Wilde referred. It was decided in Whitney v. Gordon, 1 Cush., 266, that if a
It follows, from this examination, that Larrabee, under the B. S. of 1841, is entitled to recover for a quarter’s rent.
It is insisted that Larrabee, by taking the key to the store, has taken possession of the store and waived all right to notice from his tenant.
It is.in proof that the tenants offered the key to Larrabee, who refused to take it; that one of them then threw it on the floor, and left; that after this, and in the absence of both of the tenants, he took it and retained it, but that the premises remained unoccupied during the residue of the term.
As the tenancy was the result of the express or implied agreement of the contracting parties, so must be its termination, unless when the notice required by statute is given. The key was offered and refused. The tenant threw down the key and left. The landlord, by merely taking up and preserving from loss the key left by his tenants, cannot bo regarded as having assented to the termination of the tenancy. It was a mere matter of prudence, by which no rights were forfeited. The receipt of rent is no waiver of a continuing breach of covenant. Doe v. Jones, 5 Exch., 498. In Barlow v. Wheelwright, 22 Verm., 88, the tenant quit possession of the premises leased, and offered to give up the key, which the landlord refused to receive; but, as the tenant left without notice and before the determination of his tenancy, he was held liable for rent. In Cannan v. Hartley, 9 Man., Gran. & Scott, 635, (67 E. C. L., 634,) the tenant, upon the bankruptcy of his landlord, sent the key to the office of his
But it is urged that the law has been changed, in the revision of our statutes in 1857, and that it now is as it was prior to the revision of 1841 and the new provisions of R. S., c. 95, §§ 19, 20, relating to the determination of tenancies at will, and that, under the existent legislation, tenancies at will are determinable without notice, and at the will of either party. Such we' regard the law, as established by the revision of 1857.
Chapter 95 of R. S., 1841, is entitled “ of estates in dower and by curtesy and at will.” Chapter 103, in the revision of 1857, is headed — “ estates in dower and by curtesy and actions of dower.” No reference is made therein to estates at will, and no section corresponding to R. S., 1841, c. 95, § 19, is to be found.
The provisions on the subject of forcible entry and detain-er are found in R. S., 1857, c. 94. The second section is a reenactment of the statute of 1849, c. 98, which provided for the maintenance of the process of forcible entry and detainer,
Though R. S., 1857, c. 94, is headed — -“Forcible Entry and Detainer — Tenancies” — yet no provisions are found therein for the determining tenancies at will, by notice in writing, by either party, as was the case by R. S.,.1841, c. 95, § 19. It merely gives the landlord rights, and provides what he may do preparatory to bringing the process of forcible entry and detainer. Though reference in the margin is made to R. S., 1841, c. 95, § 19, yet c. 94 of R. S., 1857, contains none of its provisions, nor does it provide in any way for the determination of estates at will. Nor are any provisions corresponding to those of R. S., 1841, c. 95, § 19, to be found in the last revision. Consequently, tenancies at will are now as they were before the revision of 1841.
The claim of Larrabee for rent, therefore, if it were to be determined by the existing law on the subject, cannot be maintained. But his right of action accrued in 1855, and the original action, now sought to be reviewed, was commenced Sept. 22, 1856, and before the revision of 1857 became the law of the State. It is therefore saved from the operation of the change of the law, by the express terms of the repealing Act of 1857, by § 2 of which, the Acts declared to be repealed “ remain in force * * for the preservation of all rights and their remedies existing by virtue of them; and, so far as they apply to any office, trust, judicial proceeding, right, contract, limitation or event, already affected by them.”
The original action was brought to recover the rent for half a year. The plaintiff in that suit had a legal claim for a quarter’s rent only. lie took judgment on default for
The writ of review is to issue, unless the defendant in review indorse on the execution by him obtained, the sum of sixty-two dollars and fifty cents, and interest from the date of' the original action, and pay the costs of this petition.
Tide e. 199 of laws of 1863.' — Reporter.