Ela v. Bankes

DixoN, G. J. The case turns, in the judgment of this court, upon the insufficiency of the notice, or its inapplicability under the statute to the circumstances disclosed; and since this is so, no other question will be considered. The notice was given and suit instituted in pursuance of the provisions of the twelfth section of the forcible entry and unlawful detainer statute, which reads as follows: “ When any person shall hold over any lands, tenements or other possessions, after the determination of the time for which they are demised or let to him or her, or to the person under whom he or she holds possession, or contrary to the conditions or covenants of the lease or agreements under which he or she holds, or after any rent shall have become due according to the terms of such lease or agreement, and shall remain unpaid for the' space of three days, in all such cases, if the lessor, his heirs, executors, administrators, assigns or attorney, shall make demand in writing of such tenant, or, in case he or she cannot be found in the county, then upon any member of his family of suitable age and discretion, that he or she shall deliver possession of the premises held as aforesaid, and if such tenant shall refuse or neglect, for the space of three days after such demand, to quit the possession of such lands or tenements or to pay the rent therefor so due and unpaid as aforesaid, upon complaint thereof to any jus [638] tice of tbe peace of tbe proper county, tbe justice shall proceed to bear, try and determine tbe same, in the same manner as in other cases hereinbefore provided for: provided, that in all cases mentioned in this section, tbe justice shall impose no fine upon such tenant.” R. S., cb. 151, sec. 12; 2 Tay. Stats, 1756, § 12. It is plain from the reading of tbe foregoing section, that tbe notice and proceeding provided for by it are inapplicable to a case like the present. Tbe remedy there given extends and can be applied only to cases where the tenant, at and before the time of demand in writing made, is holding over after the determination of the lease, or contrary to its conditions or covenants, or after rent has become due according to its terms and remained unpaid for the space of three days. In such cases, and such alone can the summary proceeding there prescribed be resorted to. It is given when the person in possession has violated the terms of his lease or of the agreement under which he entered, and so is considered in some sense a wrongdoer at the time the possession is demanded. The landlord is authorized to make the demand because of such wrong already committed to the knowledge of the tenant committing it, and the expeditious remedy is provided to oust such a tenant. The defendant in this case was rightfully, and not wrongfully, holding possession of the premises at the time the demand in question was made upon him; and hence he was not subject to such demand, nor to the summary process which follows in case of disobedience of it when lawfully made. It would be a grossly oppressive and unjust perversion of the process to apply it to such a case. It was never so intended, but only applies in the cases above described, where the tenant holds in violation of the conditions or covenants of his lease at the time of the demand. And the short notice to quit, or demand of possession within three days, can only be made in cases of the same kind. The demand here was insufficient to put an end to the tenancy. By the Court.— Judgment affirmed. [639] On a motion for a rebearing, plaintiff’s- counsel argued tbat tbe words in tbe lease, “ Tbis agreement is subject to termination by a sale of tbe farm,” etc., are words of limitation, and, on tbe sale being made, tbe lessee’s estate terminated absolutely, ipso facto and without any notice. Taylor's L. & T., sec. 465; 4 Kent’s Com., 126-132; Miller v. Levi, 44 N. Y., 491; Parmalee v. R. R. Co., 2 Seld., 74, 80, and cases there cited; Beach v. Nixon, 5 id., 36, 37; Ba. Abr., 176; 1 Washb. R. P., *458; 2 id., 259; 2 Black. Com., 156; Mangle v. Boston, 3 Allen, 230. The defendant’s counsel contended, in reply, tbat tbe words of tbe lease relied on by tbe plaintiff are not properly either a condition or a limitation, but should rather be construed as a covenant by the lessee to hold, in case of a sale of tbe premises, at tbe will of tbe purchaser. 4 Kent, *132. Tbe motion for a rehearing was denied at tbe June term, 1873.