Raynor v. Haggard

Campbell J. Plaintiff brought summary proceedings to obtain possession of land against the defendant, who had originally entered under an executory contract, for a price payable in several instalments, the last of which fell due in November, 1855, but none of which was ever paid. It was stipulated that on any failure to pay, the plaintiff might forfeit the [75] contract, and that after any such failure defendant should consider himself a tenant at will. Three or four years after the last default, defendant, who had previously made promises, said that plaintiff had no title, and that he had bought all the title he wanted from another person, from whom it is found he obtained a deed, giving back a mortgage. Afterwards, in 1861, plaintiff tendered him a deed, and demanded performance of the contract, but defendant refused, claiming plaintiff had' no title. In 1866, plaintiff brought proceedings under the Forcible Entry and Detainer Act, and was defeated for want of notice to quit. He then commenced the present proceedings, and was defeated in the court below for the same reason. It is quite needless to discuss the question whether any notice to quit was necessary to determine defendant’s tenancy, after he had denied plaintiff’s title and set up an adverse claim. In an action of ejectment, such a question might become pertinent; but the statute giving a summary remedy against tenants at will or by sufferance, whose estate has been -determined, only allows it where such determination has been by a notice to quit. — 2 Comp. L. § 4985, subdivision 4. This statute cannot be enlarged; ancl as this tenancy was not thus determined, the plaintiff must fail in the present proceeding. The judgment below was correct, and must be affirmed, with costs. The other Justices concurred.