Jones v. . Potter

Ashe, J. We are of opinion there was no error in the charge of the court to the jury. The first instruction asked by the defendant was properly refused, and the second exception, under the facts of the case, was altogether immaterial. The deed from Macus to Enoch and Hannah Potter, as was properly admitted on the trial, passed to them an estate by entire-ties, and the deed made by them to Daniel B. Potter only conveyed to him the remainder after the determination of the life estate, which was reserved to them by the same instrument. The effect of the deed to Daniel B. Potter was simply to convey to him all of the estate of the bargainors that remained after their life estate. The original estate, except so much as was conveyed by the deed, remained in them. There was no change in the relations in which they stood to each other, and they still held the life estate by entireties, and when Enoch Potter died, the life estate survived to Hannah. She then became sole tenant for life, with remainder in Daniel B. Potter. And when she and Daniel made the lease of the land to the plaintiff for five years, it was the lease of Hannah and the confirmation of Daniel. She, having the freehold, alone could convey the interest in the term. No present title passed from Daniel to the lessee, and the only effect of his signing the deed with Hannah would perhaps be to estop him from ousting the plaintiff during the term, in the event she should die before its expiration. *223 The principles here announced are fully sustained by all the elementary writers on the subject, and to apply them to the facts of this case, the claim set up by the defendant to have the right to hold the possession of the laud against the plaintiff until a formal demand of possession should be made by him, is without foundation. Her only right to the possession was through a contract with her husband, Daniel, who had no right to make any contract of lease. She had no agreement whatever with Hannah, and did not even claim to have held the possession with her implied consent. She, then, was neither a tenant at will nor a tenant at sufferance, much less a tenant from year to year, as was contended in the argument before this court. So far as regards her relations towards Hannah Potter, from all to be gathered from the facts of the case, she was a mere trespasser, and had no right cither to a notice to quit' or a demand for possession before action. But, even conceding that she might legally claim to be a tenant at will, by the acquiescence of Hannah Potter, her tenancy was determined by the lease to the plaintiff, and she had no right to have a demand. “A determination of the will of the lessor may be implied at common law, from his exercising any act of ownership inconsistent with the nature of the estate; as, if he makes a lease of the laud, to commence immediately.” Taylor, Land, and Ten., §466. “And a tenant at will is even held to be a trespasser by- any unreasonable delay to remove after the estate has been determined.” lb., §64. Here, the lease was made on the 26th of January, 1880, and the summons was issued on the 19th day of April, 1880, and served on the ensuing day. But, even conceding further, that Enoch Potter assented to the contract made by D. B. Potter with Sally, his wife, still, after the death of Enoch, he and his wife Hannah being seized by entireties, any right of possession Sally Potter majr have acquired by such assent would have ceased, and she would have become a trespasser as to Hannah by holding the possession without her consent. “ Where husband and wife were lessees of land during their natural lives and the longest liver of them, free of rent, *224 and the defendant took possession under a verbal agreement with them to support them, and to receive the profits of the land over what should be necessary for such support: It was held, that, upon the death of the husband, the widow was entitled to recover possession, for the defendant’s interest in the land under the verbal agreement terminated on the death of the husband, as that agreement conferred no right which could affect the estate of the rvife as survivor; and the defendant, holding over after the husband’s death and without the widow’s consent, became a trespasser and was not entitled to notice to quit.” Torrey v. Torrey, 14 N. Y., 430. But here, the record shows affirmatively that a notice was given before the action was commenced. The claim of Sally Potter for money advanced to her husband in the purchase of the land, under an agreement between them, may possibly be asserted when the remainder falls in upon the husband by the death of Hannah, but we are unable to see any ground she has to hold the possession for a moment against Hannah Potter, or her tenant the plaintiff. The judgment of the superior court must, therefore, be affirmed. There was a motion in this case to dismiss the appeal, because there was no justification of the appeal bond, but in looking into the record, we find there was a waiver by the acceptance of the bond in court. No error. Affirmed.