Lyon v. Cunningham

Field, J. It has been much discussed whether one who is let into the possession of land under a contract for a deed, intended to be executed and delivered as soon as the title can be examined and the deed prepared, can, while the contract remains. in force and unexecuted, be regarded as a tenant of the vendor, or be held liable to pay for the use and occupation. By perhaps a majority of the courts it is considered that he is a licensee; that at law his right to occupy is determinable at any time by entry or demand for possession; that, if he accepts the deed, he is liable for nothing except under his contract for the purchase; that, if he refuses the deed, he may then be held liable to pay for the intervening occupation, either in an action of trespass, after entry, or ejectment, or perhaps in assumpsit; that, if the owner refuses to give a deed according to the contract, the vendee may immediately abandon the possession, and the owner cannot maintain an action of any kind on account of the intervening occupation. There may be special circumstances attending the transaction from which an agreement to pay for the intervening occupation may be inferred or implied, but it is not by these courts inferred or implied from the sole fact of a permissive occupation pending the preparation and delivery of the deed. Howard v. Shaw, 8 M. & W. 118. Taylor’s Landlord & Tenant (7th Am. ed.) § 25, note. Other courts have called such an occupant a tenant at will. If the authority to occupy is oral, he must be a tenant at will while the authority continues, if he is a tenant at all; for he cannot, while he is rightfully occupying under the authority of the owner, be a tenant at sufferance. Some English judges deny that the relation of landlord and tenant exists in the case supposed, and others call the occupant a mere tenant at will, holding strictly at the will of the owner, and not entitled to notice to quit, as tenants from year to year are. It seems to be the law now in England, that such an occupant, whatever he may be called, is not to be held liable — 538 — to pay for use and occupation during the period the contract remains unexecuted and in force, from the mere fact that he has been let into possession, and the possession has been beneficial. Winterbottom v. Ingham, 7 Q. B. 611. Corrigan v. Woods, I. R. 1 C. L. 73. Tomes v. Chamberlaine, 5 M. & W. 14. Braythwayte v. Hitchcoch, 10 M. & W. 494. Gray v. Stanion, 1 M. & W. 695. Hegan v. Johnson, 2 Taunt. 148. Lewis v. Beard, 13 East, 210. See Dennett v. Penobscot Fair Ground Co. 57 Maine, 425 ; Carpenter v. United States, 17 Wall. 489. In this Commonwealth, it was for some time doubtful what such an occupant was to be called. Number Six v. M'Farland, 12 Mass. 324. Little v. Pearson, 7 Pick. 301. Quincy Parish v. Spear, 15 Pick. 144. Cheever v. Pearson, 16 Pick. 266. But in Gould v. Thompson, 4 Met. 224, he was distinctly declared to be a tenant at will, and was held liable for use and occupation during the time of his actual occupation, and this court has continued to call such an occupant a tenant at will ever since. Foley v. Wyeth, 2 Allen, 131. Towne v. Butterfield, 97 Mass. 105. Dunham v. Townsend, 110 Mass. 440. Emmons v. Scudder, 115 Mass. 367. That neither the designation of licensee nor of tenant at will expresses all the rights and obligations of such an occupant is manifest. The contract of purchase may be one that courts of equity will, under the circumstances, specifically enforce; if the contract is in writing, the parties have their action at law for a breach of it; and the rights of a party are not the same if he breaks the contract as if he keeps it. In Dakin v. Allen, 8 Cush. 33, this court said: “ But it is sometimes said that one who is in thus under a contract for a sale is tenant at will to the owner. In a certain sense he is a tenant at will, as a mortgagor is tenant at will to the mortgagee, because he may enter upon him and eject him, if he can do it peaceably, or maintain a real action on his title, and thus gain the possession. He is like a mortgagor in relation to a mortgagee, in another respect; he is under no obligation to pay rent, unless upon an express agreement.” It was held in this case that the occupant, being in possession, by the oral permission of the owner, under a bond for a deed, was not liable to the landlord and tenant process provided by the ■Rev. Sts. c. 104, „§ 2, because he was not the lessee of the land — 539 — within the meaning of that statute. See Hastings v. Pratt, 8 Cush. 121. In King v. Johnson, 7 Gray, 239, the court said: “ Although, in a certain sense, a person occupying land under a contract of purchase may be said to be a tenant of the owner, still the analogy does not hold good in all respects. In one essential particular, it fails. The occupier is not liable to pay rent,to the owner.” That this is a peculiar tenancy at will is shown by Gould v. Thompson, ubi supra. In that case, the building having been destroyed by fire before the deed was offered, it was held that the vendee was not bound to accept the deed; that he might recover back the purchase money he had paid; and that he had a right to abandon the possession after the fire, and was only liable for use and occupation during the time of the actual occupation. The statutory law in regard to determining estates at will by notice was then substantially the same as now, and the occupant had not given the statutory notice, although this fact is not discussed in the opinion. St. 1825, c. 89, § 4. Rev. Sts. c. 60, § 26. Gen. Sts. c. 90, § 31. Pub. Sts. c. 121, § 12. The decision that the occupant was liable to pay for the four days of actual occupation was made, so far as it was made upon decided cases, upon the authority of Hull v. Vaughan, 6 Price, 157. But that case was not an action against a vendee who had been let into possession under a contract of purchase; it was a peculiar case, not entirely analogous, and it has not been regarded in England as establishing the doctrine that a vendee in possession under a contract of purchase is liable for use and occupation pending the performance of the contract. Winter-bottom v. Ingham, ubi supra. Considerations somewhat similar have been applied to cases where a person has been let into possession under an agreement for a written lease. Written leases differ so much in their terms and provisions, sometimes conveying an estate almost equivalent to a fee, and sometimes an estate little more than an estate at will, and the reasons for the delay or failure to deliver the lease have been so various, that it is more difficult to determine the general principles on which the cases have been decided. — 540 — In English cases, the statement is made that a person let into possession under an agreement for a lease, who has not paid rent, is a strict tenant at will, and that on the payment of rent be becomes a tenant from year to year. Clayton v. Blakey, 2 Smith Lead. Cas. (7th Am. ed.) 116, note. Chapman v. Towner, 6 M. & W. 100. Pollen v. Brewer, 7 C. B. (N. S.) 371. Howard v. Shaw, ubi supra. If the lease agreed to be given reserves rent, and the intended lessee' is let into possession, and holds during a part of the term intended to be created by the lease, it is a natural inference that the parties intended that rent should be paid for the occupation during this part of the term, although the rent intended is rent under and in accordance with the terms and provisions of the written lease, which, on its execution, relates back to the beginning of the term. A person so let in under an agreement for a lease has uniformly, so far as we know, been held liable for use and occupation during the time of actual occupation, unless there is found to be an agreement to the contrary. Dunne v. Trustees, 39 Ill. 578. Rogers v. Pullen, 2 Bing. N. C. 749. Sloper v. Saunders, 29 L. J. (N. S.) Ex. 275. Smith v. Eldridge, 15 C. B. 236. Thetford v. Tyler, 8 Q. B. 95. Dawes v. Dowling, 22 W. R. 770. Greton v. Smith, 33 N. Y. 245. Braythwayte v. Hitchcock, ubi supra. Forbes v. Smiley, 56 Maine, 174. Hegan v. Johnson, ubi supra. Tenancies from year to year are unknown in this Commonwealth, but an agreement may perhaps be inferred that the occupant is let in as an ordinary tenant at will until the lease is delivered, from circumstances which would not warrant this inference if the contract was for an absolute purchase. The payment and acceptance of rent unexplained is strong, if not conclusive, evidence of such a tenancy. We are not aware that it has been actually decided anywhere that, if a person is let into the possession of land under an oral contract for a written lease, which the parties intend shall be executed and delivered forthwith, and the letting into possession has been solely in anticipation of the execution of the written lease, and there is no agreement in reference to the intervening occupation, no payment of rent, and no other circumstances from which an agreement to pay rent can be fairly inferred, and the — 541 — owner refuses to give a written lease according to the contract, the occupant cannot at once rescind the contract and abandon the possession, without any liability to pay for the occupation beyond the time of actual occupation. The argument in this case is, that, by our decisions, such an occupant is a tenant at will; that an estate at will is thus created within the meaning of the Pub. Sts. c. 121, § 12; that this estate must be determined in accordance with this statute, if not determined in some other legal mode; and that it is not a legal mode of determining such an estate to abandon the possession, unless the landlord accepts the surrender of the estate. Without deciding that, by this peculiar tenancy at will, an estate at will within the meaning of this statute is created, but assuming it to be so, such an estate may be determined in any manner the parties may have mutually agreed upon, and it may be subject to a condition, or be limited upon a contingency and determined upon the happening of the contingency. Creech v. Crockett, 5 Cush. 133. Elliott v. Stone, 1 Gray, 571. Ashley v. Warner, 11 Gray, 43. May v. Rice, 108 Mass. 150. Davis v. Murphy, 126 Mass. 143. If the occupant has been let into possession under an oral contract for a written lease, solely in anticipation of the delivery of the lease, and without any other facts and circumstances from which an agreement can be inferred that he will hold as an ordinary tenant at will until it is delivered, it is a fair legal construction of the contract and acts of the parties, that the possession is taken and held on the condition that such a written lease as the contract calls for shall be delivered; and, if the landlord refuses to execute and deliver such a written lease, we think the tenant can then treat the contract as at an end, and the tenancy is thus determined by the non-performance of the condition as one of the incidents of the contract. The plaintiff relies upon Emmons v. Scudder, 115 Mass. 367. That case in many respects resembles the case at bar, but it differs in this, that the defendants abandoned the premises because, as they alleged, the plaintiff refused to repair according to the agreement. The written lease remained unexecuted, but the plaintiff had offered such a lease, and the defendants had made no objection to it. The defendants had before been — 542 — tenants of a part of the premises agreed to be let, and remained in possession of this part, and let the remaining portion, and had received one or two months’ rent therefor. They had themselves, knowing all the facts, paid one quarter’s rent for the whole premises to the plaintiff, but under protest. This was evidence that the defendants had become ordinary tenants at will under the new agreement until the lease should be executed, and the plaintiff had never refused to execute a lease according to the agreement. It is indeed said in the opinion, that a refusal to execute the lease would not convert this tenancy at will into a tenancy at sufferance; and that if the making of the repairs were a condition precedent to the acceptance of the lease, “yet, by entering upon the premises under the new agreement before this was done, they had made themselves the tenants at will of the plaintiff,” and while the failure to make the repairs would be a breach of contract, it would not entitle the defendants to terminate the tenancy upon which they had entered, as a tenant at sufferance might do. These statements were not necessary to the decision, although, if an ordinary tenancy at will was established between the parties, they seem unobjectionable. The refusal to make repairs when the tenant has entered relying upon the promise of the landlord to make them, is not necessarily the same thing as a refusal to give the written lease agreed upon. The agreement to make repairs may be an independent stipulation, for the breach of which an action will lie, The refusal to give the lease agreed upon is a breach of the contract of letting. We think that the instruction, that the letting into and taking possession under a contract for a written lease, of themselves, create such a tenancy at will as necessarily requires of the tenant the statutory notice in order to determine it, even if the landlord refuses to execute a lease according to the contract, unless there is some other understanding between the parties as to the duration of the term or the event which should terminate it, is erroneous. Wu do not find it necessary to consider the remaining exceptions. Exceptions sustained.