Jackson ex dem. Phillips v. Aldrich

Thompson, Ch. J., delivered the opinion of the court. In May, 1802, the defendant conveyed the premises in ques.tion to Harry Garrison, who, in May, 1812, conveyed the same to the lessor of the plaintiff. The defendant has continued in possession ever since his conveyance to Garrison; but how, or in what character, does not appear. It is now contended that he is entitled to notice to quit. Whatever appears in ..the case, relative to a claim for rent by Garrison, after he conveyed the premises to the lessor of the plaintiff, must be entirely laid out of view. For it is a proposition that cannot be questioned, that a grantor cannot, after the execution of his deed, lawfully do any act to prejudice the rights of his grantee. Nor are any declarations, confessions, or admissions of his to be admitted against the grantee. Suppose the proof offered had been that Garrison, after his conveyance, acknowledged that the defendant was his tenant. This, clearly, would not have been admissible. And if he would not 'be allowed to say this directly, to the prejudice of his grantee, he certainly will not be-allowed to say the same thing indirectly. [108] The lessor was no party to that claim for rent, and what appears a little' extraordinary is, that Garrison claimed and recovered rent for two years after he had sold the land* Rejecting, then, every thing in relation to the rent, the-case rests upon the naked fact, that the defendant continued in possession after he conveyed: the. land to Garrison, without the least evidence whatever that the lessor of the plaintiff even knew that he was there, until he brought the present action against him* , It is unnecessary to travel' over all the eases that have been before this court on the question of notice to- quit. 11 may, I think, be taken for granted, that the doctrine has already been pushed far enough. • To extend it to the case before Us would,, in my apprehension,, be going much farther than we have yet gone* The principle upon -which this,question turns, is- laid down in Jackson v. Deyo; (3 Johns. Rep. 422.,) the-court there say, expressly, that it never has been decided that a notice to quit was necessary, unless where the relation of landlord and tenant existed. This was the principle which governed the case o£ Jackson v. Bryan, (1 Johns. Rep. 322.,) which is, perhaps, as strong a case as is to 'be found in favour of the doctrine* Yet, in that case, it was put upon the ground that there was a tenancy from year to year, which was inferred from the special circumstances of the case; which, among other things, were, that possession was, originally, taken by the express permission of the-owner of the land, accompanied with a promise to pay for improvements* ; ' The eases which have been decided irt this-court, en ejectments by mortgagees, will serve further to illustrate this principle. In. Jackson v. Longhead, (2 Johns. Rep. 75.,), where the action was by the mortgagee against the mortgagor, notice to quit was deemed necessary, because there was a privity of contrac t as well, as of estate j and a kind of tenancy existed, but what kind is not stated. It could not have been any thingmore than- a tenancy at willy and, therefore, in Jackson v. Fuller, (4 Johns. Rep. 215.,) where the action, was- by the mortgagee against the purchaser of the interest of the mortgagor, no notice to- quit was deemed necessary; because the- purchaser was a stranger to the contract between the mortgagor and mortgagee; and there was no privity of contract or estate-. If this had been an action by Garrison himself, it would be very'difficult to maintain,.".upon-any principies heretofore settled, that he would have been bound to give ■ notice to. quit* There .was* certainly, na.relation- ®f lándlori [109] and tenant created by any express agreement; and to presurfte such relation from the naked fact, that the defendant continued in possession, would be carrying the doctrine of presumption beyond what, in my judgment, the rules of 1'aw will warrant. It may be said, that an action for use and occupation would have lain by Garrison against the defendant, ¿nd that this furnishes the test, with respect to notice to quit. This, certainly, cannot be the test, for it cannot be pretended that a mortgagee can maintain an action for use and occupation against a mortgagor, yet he is bound to give him notice to quit. But no action for use and occupation could have been maintained by Garrison. In the case of Smith v. Stewart, (6 Johns. Rep. 46.,) it is said, by this court, that the statute which gives this action, applies only to the case of a demise, and where there exists the relation of landlord and tenant, founded on some agreement creating that relation. But where, it may be asked, is the evidence of any such an agreement ? Why presume an agreement for a lease, rather than any other contract ? The mere fact of a twelve years’ possession, without the payment, or even claim of rent, would more naturally lead to the conclusion of a reconveyance by Garrison, or that his title had been, in some way, extinguished. It is irrational, and against the usual course of dealing between landlord and tenant, to permit such a length of time to elapse without pavment or claim of rent. It is true, where there has been a’lease which has expired, and, by the consent of both parties, the tenant continues in possession afterwards, the law will imply a tacit renovation of . the contract, and a tenancy from year to year is created by implication. (1 Term Rep. 162.) But, in such cases, there is something from which a continuance of the lease may reasonably be presumed, the prior relation of landlord and tenant having been expressly shown. In the case before us, no foundation is laid for any such presumption. The utmost that could be claimed by the defendant, against Garrison, would be a tenancy at will; and this relationship was determined by the sale to the lessor of the plaintiff. A tenancy at will is at the will of both parties, landlord and tenant, and either may determine his will, and quit his connexion with the other, whenever he pleases. This may be done on the part of the landlord, either by express declaration, or by the exercise of any act of ownership which is inconsistent with the nature of such estate. (1 Craise, 273.) [110] The .observation' 'which fell from Lord, Mansfield, in Timmins v. Rowlison, (3. Burr. 1609.,) that Teases at will, in the strict legal notion of .a lease at wills exist Only notionally, has by some been construed, into, the expression of 'an- opinión that no, such estates existed at this day. This, I ■ apprehend, is a mistaken ■ interpretation of his lordship’s meaning. The coristruct-ion given by Mr. Hargrave (Co. Lit. 55. a. n. 3.) is undoubtedly the true one : “This observation^:-he says*. “■ means not that estates at will may not arise now as well as formerly, but only that it is no longer usual to create sutih estates by express words.” (1 Johns. Rep. 324., and cases there cited.) . I think I have shown that the case furnishes no evidence that the defendant was tenant, from year' to year, to Garrison ; and admitting him to have been a tenant at will, even as against Garrison, he is not entitled to notice to qü|V' That right is'lost by the sale,: by Garrison, to-the lessor of the plaintiff ; and there is' no ground upon which he can be required to give any such, notice. The motion for a new trial must, accordingly, be denied.