Pitkin v. Burch

The opinion of the court was delivered by Ross, J. The right of the plaintiff to maintain this suit, depends upon whether the facts bring it within the language and spirit of the statute. The particular remedy attempted to be used is given by statute. The language of s. 22, c. 46, of the Gen. Sts., only gives this remedy against one who holds possession of the premises after his right to do so under a lease, written or parol, has terminated. It in terms applies to no other holding of premises. It is a summary remedy, and allows the landlord very speedily and summarily to repossess himself of premises that the lessee holds against him without right after the termination of the lease by the expiration of the term, or by the violation of some of the provisions of the lease that work a termination of the term. Such summary remedy is given in no other cases. If the legis-lattfre had intended to give the remedy in other cases, it could very easily, and would have been likely to have used language suited to that end. It is a familiar and well recognized rule in [523] the construction of statutes conferring -new remedies, that the instancing by the legislature in the statute of particular cases to which the remedy shall apply, excludes from its application all cases not mentioned. The application of this rule to the construction of the statute under consideration, excludes the case at bar from the operation of the remedy therein provided. The defendant, so far as the case discloses, never was in possession of the premises sought to be recovered under a lease, written or parol. He is not now holding the possession of the promises after the termination of such lease. He is, rather, in possession in the character of a vendor, refusing to surrender the premises tó the purchaser. Rent, the characteristic element of a lease, has never been paid by the defendant to the plaintiff, nor to any of the grantors of the plaintiff. That the defendant, when notified by the plaintiff of his purchase of the premises, on being requested to vacate them, told the plaintiff that he would do so within a few days, and as soon as he could find a house to move into, does not change the character of his possession. The plaintiff did not agree that he might remain in possession for the few days, nor did the defendant, by implication even, agree to pay rent for such possession. This talk between the parties has none of the elements of a parol lease. The apparent object of the passage df the statute was, to furnish a cheap and speedy remedy to the owner of premises who has a right to possession, for the recovery of such possession against one who stands in the acknowledged relation of lessee, and by virtue of standing in that relation to the plaintiff, is estopped from disputing his title to the premises. Such cheap and speedy remedy operates to the advantage of poor tenants, by rendering landlords willing to rent to them when they would not’if the process of regaining possession necessarily required time and considerable expense. The accomplishment of this object does not require the application of the remedy to cases not named in the statute. But if it did, it is the duty of this court to declare the law as written, and not -to make it. The views here expressed are substantially stated by this court in Davis v. Hemenway, 27 Vt. 589, since which decision there have been many [524] opportunities for the legislature to extend the remedy to cases like the one at bar, if it had desired to give it a wider application than was announced by the court in that case. Judgment affirmed.