Cunningham v. Holton

Appleton, C. J. This is an action of trespass quare clausum. It appeared in evidence that, in March, 1865, the defendant leased by parol the store in controversy for three years. The rent was to commence April 1, and was payable quarterly. In August or September following, Patten, the lessee assigned his interest to the plaintiff, who occupied to November, when he sold out to one Freeman. Freeman remained in possession until February, when he re-sold his right to the plaintiff who entered and continued in possession up to April 10th, when the defendant broke in and took possession, which is the trespass complained of. The rent for the two first quarters was paid by Patten. The rent due January 1st was paid by Freeman. A few days before the first of April, the defendant came into the store, which the plaintiff was then occupying, and asked him if he was going to pay the rent of the store. The plaintiff inquired if the rent was then due, and defendant replied it was not. The plaintiff then told the defendant that he expected to pay the rent when it became due. The defend [36] ant then informed the plaintiff that he had leased the store for five years from April 1st and should expect him to quit the premises. On 18th April, the defendant sued the plaintiff for the use and occupation of the store from Jan. 1, 1866, to April 10, which the defendant paid on the 24th. Upon these facts the presiding Justice ordered a nonsuit, and the question arises as to the correctness of such order. It is conceded that Patten was a tenant at will of the defendant. A tenancy at will is an estate which simply confers a right to the possession of the premises leased for such indefinite period as both parties shall determine such possession shall continue. The estate may arise by implication as well as by express words. ‘ The payment and acceptance of rent are facts from which the existence of such tenancy may be inferred. As Freeman paid rent at the quarter day it was due, the defendant, by receiving it from him, must be considered as regarding him as a tenant. As a tenancy at will is determinable at any time, the tenaut has no certain and indefeasible estate which he can assign or grant to any other person. Austin v. Thompson, 45 N. H., 117. "Therefore, if a tenant at'will assigns over his estate to another, who enters upon the land, he is a disseizor, and the landlord may have an action of trespass against him.” 1 Cruise’s Dig., 244, title 19, c. 1, § 7; Cooper v. Adams, 6 Cush., 87. The plaintiff, consequently, by his purchase of Freeman, acquired no rights as against the defendant. If Freeman was a tenant- at will, he determined his estate by his own act. The plaintiff being in as a disseizor the tenant might enter upon liim as upon any other person, who, .without right had taken possession of his lands. So, he might waive the tort and accept him as his tenant. The defendant sued the plaintiff for rent up to the date of his entry, which the latter paid. The action for use and occupation cannot be maintained except upon an express or implied promise. It must appear that the defendant recognized the title of the landlord and occupied under it. Rog [37] ers v. Libby, 35 Maine, 200; Howe v. Russell, 41 Maine, 446. Assumpsit for use and occupation will not lie when the relation of landlord and tenant does not exist. Porter y. Hooper, 11 Maine, 170. It is competent, however, for parties to waive the tort, and, if waived, the owner may maintain assumpsit for use and occupation. Curti&Y. Treat, 11 Maine, 525. By bringing in assumpsit for use and occupation, in connection with the other evidence, the tenant would seem to/ have negatived the fact that the possession of the plaintiff was tortious, — and that he had a right to enter upon him as a disseizor. The plaintiff cannot be regarded as a tenant at sufferance, for such tenancy is an interest arising when one comes into possession by a lawful title otherwise than by act of law, but retains such possession longer than he has any right. Besides, at common law, no action can be maintained against a tenant at sufferance for rent, " because it was the folly of the owners to suffer them to continue in possession after the determination of the preceding suit.” 1 Cruise’s Big., 250. Flood v. Flood, 1 Allen, 217. But by paying and receiving rent for the time the tenant holds over, the tenant at sufferance becomes a tenant at will. Ib. 1 Washburn on Beal Estate, 393. By bringing a suit'for use and occupation, the defendant assumed that the plaintiff was his tenant, and as such, bound by express or implied promise to pay rent. The only tenancy under the facts as proved., was a tenancy at will. If there was such a tenancy and the rent was due quarterly, the landlord might have entered on the 1st April and demanded rent, and, if not paid, he might have held the premises as forfeited for non-payment of rent. Jewell v. Berry, 20 N. H., 37; McMurphy v. Minot, 4 N. H., 251. But the tenancy was not terminated by such entry. The landlord neither entered nor demanded rent on that day. He suffered the tenant to enter on a new quarter. By B. S., 1863, c. 199, "all tenancies at will may be determined by either party by thirty days notice, in writing, [38] for that purpose, given to the other party, and not otherwise, except by mutual consent, and excepting cases where the tenant is liable to pay rent and no rent is due at the time the notice expires; and no further notice shall be required to entitle the landlord to the process of forcible entry and detainer.” No notice whatever has been given under this statute. The rent was payable quarterly and was due April 1. The entry was made April 10. In the absence of express stipulation it is a general rule of the common law, that, if a tenant hold from year to year, notice must be given ending with the year of the tenancy; if the hiring be a quarterly, a monthly, or a weekly hiring, the notice must be a notice to quit at the expiration of the current quarter, month or week; and, if it breaks in the middle of the quarter, month or week, it is not a good notice tb quit. Baker v. Adams, 5 Cush., 99; Sanford v. Harvey, 11 Cush., 93; Prescott v. Elms, 7 Cush., 346. The defendant never gave the written notice required by statute. He did not enter to demand rent when due, or to claim for a forfeiture if the same was not paid. He is not shown to have determined the tenancy, which his own writ indicates as existing. He elected to consider the plaintiff as his tenant. Larrabee v. Lumbert, 34 Maine, 79. He is therefore a trespasser. Brook v. Berry, 31 Maine, 293. Further, the defendant is shown to have leased the prern- ■ ises prior to April 1st. In that case, he would have no right to enter. If the tenancy was terminated by such lease, the right to enter would belong to his tenant and not to him. There was evidence tending to show that the plaintiff was tenant at will, which should have been submitted to the jury. Nonsuit taken of. — Oase to stand for trial. Kent, Dickerson, Barrows and Taplev, JJ., concurred. Walton, J., concurred in the result.