Huyser v. Chase

'Campbell J.: Chase agreed with the plaintiffs in error, to lease to them certain premises, set forth in the case, for twenty-■one months, from the 31st day of July, 1862. The ■agreement was made during that month, and the lease was to be in writing. The lessees were put in possession, but afterwards refused to. accept a written lease. Chase received rent, however, from month to month, in advance, up ' to July 31st, 1863. July 10th, 1863, he notified the tenants to quit on the 1st of August, and ■on their refusal, he brought this action to oust them, and obtained judgment in his favor, which is now brought up for review. The lease was not valid, under the Statute of Frauds, and the tenancy must be regarded as a ten■ancy at will. Our statutes have provided that estates at will may be terminated by a notice of three months; but, where the rent reserved in a lease at will is payable at periods of less than three months, the time of !such notice shall be sufficient, if -it be equal to the interval between the times of payment. As the lease was to run from and after the 31st of July, the term began on the 1st of August, and the notiee would have been good, had it been served a full month previously. As the statute covers the entire case, it is not necessary "to consider any other questions discussed. [103] Chase had no cause of action, inasmuch as his notice did not end the tenancy; and the plaintiffs in error are entitled to judgment on the finding, with costs of both . Courts. The judgment below should be reversed, and a new judgment entered accordingly. Christiancy J. concurred. Martin Ch. J.: The facts of this case clearly show that the ’'plaintiffs in error Avere tenants at will, under Chase. The contemplated contract, for a leasing for twenty-one months, was never reduced to writing, and was, therefore, void, under the Statute of Frauds. The entry of the plaintiffs was, consequently, under no laAvful agreement for any specific term; and the consent of Chase to the occupancy, and the acceptance of rent by - him, establishes nothing, but that such occupancy Avas .at his will. No term was fixed, and no rent agreed upon for any term. The acceptance of a payment of rent monthly, proves nothing, in the absence of a specific agreement that the tenancy should be one from month to month, or for a specified time. It only shoAVS that the occupancy was permitted at the landlord’s will. Such being the law of this. case, it follows that the notice of the 10th of July, 1868, given by Chase to the plaintiffs, to surrender the premises on the 1st day of August following, was not a compliance Avith the statutory requirements in cases of tenancy at will, as the statute requires' three months’ notice to be given to the tenant, unless the rent reserved is payable at periods less than three months, in which latter case, a notice shall be sufficient, if equal to the interval between the times of payment. In the present case, the notice was insufficient, in any aspect of the case. Had the plaintiffs neglected, or refused to pay rent, a different rule would apply.- — -See Comp. Laws, §280'?. [104] The judgment must, be reversed, and a judgment rendered in favor of the plaintiffs in error, for costs of both Courts.