Bick v. Hill

Philips, P. J. The contract under which the plaintiff claims to have entered into the possession of the premises being by parol, without any memorandum in writing, his relation to the possession was merely that of' a tenant at will. He was not entitled to demand a deed. [558] until he paid the purchase money ; and the vendor could have maintained ejectment against him after the maturity of the note, had he failed to pay the same. Tyler on Ejectment, sects. 558, 559, 565; Hotiling v. Hotiling, 47 Barb. 163. Such a tenant may maintain trespass against any stranger who wrongfully interferes with his possession; and against any one who commits a nuisance, or other injury, interfering with the comfort or convenience of his enjoyment of the premises; “but not for any injury to the reversion, although he is under a contract to purchase, which is subsequently consummated by a conveyance.” Wood’s Land. and Ten., sect. 17. So it is said in Richardson v. Thornton (7 Jones L. [N. C.] 458): “The obligee in a bond to make title to land, who goes into possession under a parol agreement that he is to occupy the premises till the money become due, is but a tenant at will to the obligor, and cannot maintain ejectment or trespass against the latter, or one taking title from him.” In Turner v. Bennett (9 M. and W. 643), Lord Den-man, C. J., said: “The intent of an entry, by the landlord, is undoubtedly in many cases important, but in the case of a tenancy at will, whatever be the intent of the landlord, if he do any act upon the land for which he would otherwise be liable to an action of trespass at the suit of the tenant, such act is a determination of the will, .for so only can it be a lawful and not a wrongful act.” Pursuant to this principle it is held that if the landlord enter upon the premises without the tenant’s con.sent, and cut down trees, or take and carry away soil or .stones, these acts, ipso facto, determine the tenancy. Rising Stanard, 17 Mass. 282. Having contracted with the defendant for the purchase “of his lot,” as the plaintiff himself testifies he did, and claiming, as he does, to have entered into the possession thereof under the parol contract with defendant, the defendant is not to be regarded in this case as a [559] stranger, altliougli the deed was to come from another. The defendant was the plaintiff’s landlord until the contract was consummated by payment of the purchase money: In such case the plaintiff cannot maintain trespass against the defendant for going upon this unfenced and uninclosed lot and taking water from the well. And especially so under the facts of this case, where it appears the defendant never recognized the plaintiff’s exclusive right to the occupancy of the well. The note was not paid when the alleged trespass was committed, and the deed had not been delivered, and the plaintiff was not even entitled to demand the deed. The action must fail. The other judges concurring, the judgment of the circuit court is reversed.