Sappenfield v. . Goodman

'WiNboeNe, J. Where one goes into possession of land under a written lease for an indefinite term terminable “for any reason” by the lessee, *420 and, upon bis failure to pay rent as agreed, tbe lessor gives notice of his election to terminate the tenancy and demands possession of the premises, has the lessee, who thereafter continues in possession, such interest in the land as entitles him, upon payment of balance due on a note, secured by duly registered prior deed of trust covering the land, and for which he is not primarily liable, to compel the assignment of the note and deed of trust, and to restrain a foreclosure sale under the latter? The answer is “No.” The question on factual situation similar to that here presented has not been considered in this or any other jurisdiction, so far as we have been able to ascertain. The text writers say that the general effect of the decisions is that one who has an interest in property and who is not primarily liable for a debt, secured by a mortgage thereon, and can show that such interest will not be otherwise effectually protected or conserved to him, may, on payment of the indebtedness, compel an assignment to him of the mortgage. Hence, there seems to be no absolute right to an assignment of the mortgage on payment of the indebtedness, but that circumstances of the particular case will determine the action of the court in granting or refusing the relief sought. 19 R. O. L., 482. Subject: Mortgages, sec. 273. In the present case, conceding that the agreement constitutes a valid lease between plaintiff and defendant M. B. Sherrin, what is the interest created by it? The court below was of opinion that on account of the uncertain duration the lease created a tenancy at will. With this we agree. Rental Co. v. Justice, 212 N. C., 523, 193 S. E., 817. At common law a tenancy at will- is created by a letting of land or tenements without the limitation of any certain or determinative estate. It may be created by express words, and exists where the estate can be determined at the pleasure of either party to the lease. Ruling Case Law states : “It is a well settled and well known rule of law that a lease or estate which is at the will of one of the parties is equally at the will of the other party. One is no more and no further bound than the other.” 16 R. C. L., Landlord and Tenant, sec. 91, citing Stedman v. McIntosh, 26 N. C., 291. In 35 C. J., 1120, Landlord and Tenant, sec. 339, it is said: “It frequently has been stated that where the lease is made expressly to hold at the will of one of the parties, the law implies that the holding is at the will of the other party also. So a tenancy which is expressly at the will of the lessor is regarded also at the will of the lessee, and according to some authorities the converse of the rule is likewise true, and an estate at the will of the lessee is also at the will of the lessor.” Mhoon v. Drizzle, 14 N. C., 414, is there cited. In this case, in concurring *421 opinion of Henderson, C. J., tbe pith of the decision is clearly stated: “An estate at will is an estate at the will of either party, and if at the will of one, it must he at the will of both. There can be no such estate as one at the will of one party only.” In the case at bar it is provided in effect that the lease shall he in force for the period of time during which the filling station is occupied by the lessees, and, if for any reason the lessees vacate the property, the lease will terminate. In other words, the lease is of uncertain duration, and is expressly terminable at the will of the lessees. Applying the above principles of law, the lease being terminable at the will of the lessees, the plaintiffs, it is terminable at the will of the lessor, the defendant M. B. Sherrin. A tenant at will, if entitled to any notice to quit, is entitled only to a reasonable notice. Mauney v. Norvell, 179 N. C., 628, 103 S. E., 372; Rental Co. v. Justice, supra. In 35 C. J., 1130, Landlord and Tenant, section 361, it is stated: “While the law differs in different jurisdictions as to the necessity of notice to terminate a tenancy at will, the rule is universal that such a tenancy may be terminable by notice.” In the present case the court finds as a fact that on 21 March, 1938, M. B. Sherrin, the lessor, gave such notice of his election to end the lease, and demanded possession of the premises. When the plaintiffs thereafter held over and continued in possession, they became tenants at sufferance. In Black’s Law Dictionary, tenant at sufferance is defined to be: “One that comes into the possession of land by lawful title, hut holds over by wrong, after the determination of his interest.” It is stated in Corpus Juris, that “Since a tenant at sufferance is a wrongdoer, and in possession as a result of the landowner’s laches or neglect, he has no term, and no estate or title, but only a naked possession without right, and wrongfully. He acquires no permanent rights because the landowner neglects to disturb his possession, and the landl owner is entitled to resume possession, and the tenant is entitled to quit, at any time without notice.” 35 C. J., 1134, Landlord and Tenant, section 370. Such was the status of the plaintiffs in the instant case at the time this action was instituted, 18 May, 1938. “Equity suffers no right to be without a remedy,” Sumner v. Staton, 151 N. C., 198, 65 S. E., 902, 18 Am. Gas., 802, but the right must exist before the equitable remedy may he invoked. “Equity does not create rights which the common law denies,” Adams on Equity, quoted and applied in Streater v. Bank, 55 N. C., 31. We are of opinion that the situation is not altered by the fact that after the institution of this action the lessor, M. B. Sherrin, instituted summary ejectment proceeding in which, upon the lessee tendering and *422 paying into court tbe rents due, judgment was entered dismissing that proceeding, from which judgment the lessor'gave notice of, but did not perfect, appeal to Superior Court. The principles enunciated in authorities cited by counsel for appellant, in our opinion, are distinguishable for different basic factual situations. The judgment below is Affirmed.