McKay & Blakeslee v. Mumford

By the Court, Nelson J. The judge erred in his charge to the jury, from a misapprehension of the opinion pronounced by this court on the granting of a new trial in this case. It was supposed that opinion contained the doctrine that, to sustain the action for use-and occupation as between these parties, there must be evidence of a refusal by the defendants to yield possession to the plaintiffs of their moiety, or of an intention on their part to hold exclusive possession. No such principle was intended to be advanced. The case of Mumford v. Brown, 1 Wendell, 52, was cited to illustrate the rights existing between co-tenants as to the possession of their estate. It decides that a tenant in common, holding over after the expiration of a lease of the moiety from his co-tenant, is not liable to double rent under the statute, if, when demand of possession of the moiety is made, he offers to deliver it to his lessor; as that is all the lessor is entitled to, the tenant has still a right to continue possession under his own title. The case of Mumford v. Brown, merely shews the application of the undeniable principle that each tenant is entitled to the possession of the estate, and it was hence argued that the continuance of A. H. Mumford in ■possession of the mill after the expiration of the lease, nothing else appearing, did not, as in cases where tenants have no in [353] terest in the fee, necessarily imply that he was holding under the terms of the lease, or as tenant to the plaintiff. Where the termination of the lease is certain, the relation of landlord and tenant ceases in all cases at the expiration of the lease, unless there is evidence of an assent to its continuance. This is obvious from the fact, that notice to quit is not necessary in such cases, 8 East, 358; and the tenant is so far a trespasser, that ejectment and trespass for mesne profits will lie against him. If, after the expiration of the term, the landlord recognizes the relation of landlord and tenant to exist, then undoubtedly the tenant would be considered as holding from year to year, and would be entitled to notice to quit. 8 East, 358. 1 T. R. 159. Woodfall, 164. As to a tenant who has no title, except by the lease under which he enters, if he continues after its expiration, his possession, in contemplation of law, is in subordination to the landlord’s rights, because the law will not presume him disloyal. But no such presumption exists against the tenant in common. The fact of his not leaving possession does not authorize the inference that he still intends to hold under the lease; on the contrary, the presumption is that he holds under his own title, which gives him a right to the possession and enjoyment of the whole estate, liable however to account to his co-tenant at law, 1 R. S. 90, or in equity, 8 Cowen, 304. This presumption of possession by virtue of his own title may undoubtedly be rebutted, and then he would hold, as to the moiety of his co-tenant, as any other tenant, and subject to the same rules of law; but evidence that E. Mumford intended or avowed his intention to hold in defiance of the plaintiffs and in exclusion of their rights, does not rebut the presumption that he holds under his own title; it confirms it. The charge of the judge, therefore, in this respect, was erroneous. There should be evidence shewing, either expressly or impliedly, a recognition of the holding after the term as tenant to the plaintiffs, or, in other words, an intention to hold under the agreement or with the assent of the plaintiffs, and not merely a possession entirely consistent with his common law rights. New trial granted.