Hanchett v. Whitney

The opinion of the court was delivered by Hutchinson J. This is a case agreed upon by the parties, and was never presented to the court for allowance. The case represents the court, as taking from the jury, altogether, the business of weighing the testimony. That is not the practice of the members of this court, nor can it be sanctioned in this cáse. For this reason, there must be a new trial. To aid the parties in preparing for another trial, and render , the labour of the present hearing in some degree useful, the Court will express their opinion upon the points litigated. The chief dispute, in the contest, appeared to be whether the defendant’s possession were adverse to Jonathan Whitney, so as to render void the deed from Jonathan to the plaintiff. That seems now abandoned. The remaining questions are, 1st, whether the tenancy was such as rendered notice to quit necessary ? And 2d, whether sufficient notice was proved, or, what would be sufficient notice. The Court, upon the first point, consider that the case presents a tenancy fro'm year to year, and one in which notice to quit is necessary. When the facts to elucidate this point are agitated before the jury, the evidence of the defendant’s paying the taxes from year to year, and their being set to him, would be proper for their consideration, and ought to be admitted. That testimony was offered on the former trial, in order to show the possession adverse. It was considered as amounting to nothing in that view; because tenants as often pay the taxes as their landlords, and even more so. It is as they agree from lime to time, and affords no evidence against a tenancy. But that testimony would be pertinent, in showing a tenancy not to be at will, but from year to year. The Court consider that a tenancy at will, in its inception, when it runs for five years, as this case states, becomes a tenancy from year to year. With regard to notice, the Court consider, that six months notice is necessary. In this they adopt the common law of England. What the testimony was in this case is too imperfectly stated, but no objection is discovered to the season of the year in which the plaintiff claims that the defendant ought to have resigned the possession, provided the plaintiff proves a notice six months before that time. The plaintiff’s writ is dated the fifth of April. The fore part of April is a convenient season for tenants to change possession of farms. Thejcrops of the^preceding [243] time; that is, such as are not conve-year are usually spe* niently moved. Thomas Leland, for the plaintiff. Cyrus N. Cushman, for the defendant. With regard to the kind of notice, the Court consider, that notice by parol is sufficient to determine a tenancy of this nature. — See 2 Phil. Ev. 182 — 3. The judgment in the county court is reversed, and a new trial is granted.