Vincent v. . Corbin

Ashe, J. The exception to the charge of the court was well taken. The instruction “ that if the plaintiff demanded possession on April 6th, 1880, and the defendant was his tenant, even from year to year, the plaintiff would-be entitled to recover,” as an abstract proposition is erroneous, A *111 tenant from year to year according to all the authorities is entitled to a notice to quit before he can be dispossessed, except, in cases where he has disclaimed the relation of landlord and tenant, and a mere demand for possession like that made on the 6th of April, 1880, or in November following, is not the kind of notice which the law requires, but a notice to quit in the contemplation of the law is a written or verbal notification given by the landlord to the tenant that he will require the possession to be surrendered at the end of the current year of the tenancy, expiring on the day when the tenancy commenced. And this notice must be given three months before the termination of the current year. If nothing else appeared in the case the defendant would undoubtedly be entitled to a venire de novo for misdirection to the jury. But it was an immaterial error which did not mislead the jury and therefore was harmless. For if a jury decide correctly a question of law improperly left to them by the court, the verdict cures the error of the court. Glenn v. R. R. Co., 63 N. C., 510. The jury w7e think found a verdict in consonance with the law of the case. The tenancy in question here was clearly one from year to year; for when a party has obtained possession of premises belonging to another, and the owner does any act from which a jury may infer that he intends to acknowledge him as his tenant, a tenáncy from year to year is created by such act, and the party will be entitled to a regular notice to quit before he can be ejected. Tillinghast Adams, 107. But however well settled- it may be, that a tenant from year to year is entitled to the regular six months notice at common law and three months by our statute, there is another principle of law equally well settled, i. e., that where such a tenant sets his landlord at defiance and does'an act disclaiming to hold under him as tenant, this dispenses with the necessity of notice to quit; as for instance, by attorning to *112 another, claiming the premises as his own, &c.. Tyler on Ejectment, 223; J ackson v. Wheeler, 6 Johns Rep., 272; Jackson v. Whitlock, 3 Ib., 422; Tillinghast Adams, 119. We have been unable to find any adjudication upon the effect of a disclaimer set up in a plea or answer to an action or proceeding brought to recover the possession of the land al leged to be held by a tenant from year to year, for the reason we suppose that such questions have only arisen in actions of ejectment where the plea was the general issue, and the defendant was not permitted to plead specially in bar in this action matters which in most actions would be required to be set up specially; and consequently all such matters had to be given in evidence under the general issue. But in a proceeding like this where the defendant sets up in 'his counter-affidavit or answer the special matters, that the landlord has no title, that the title is in himself, and disclaims to hold the premises as tenant, we cannot see the reason of a rule that will require the plaintiff to give the regular notice to quit. In such case the disclaimer is stronger than if made in pais, and must therefore relieve the plaintiff of the necessity of proving a regular notice to quit. The defendant cannot be allowed to say, “ I am not your tenant, but I claim the privilege of a tenant.” As was said by Chief Justice Peabson in the case of Head v. Head, 7 Jones, 260, “ one is not allowed to blow hot and cold in the same breath, that is, if he disallows the relation, he cannot afterwards claim the privileges of a tenant.” Under this view of the law as applicable to this case, we hold there is no error, and the judgment of the superior court of Alamance is therefore affirmed. No error. Affirmed.