Jackson ex dem. Livingston against Bryan, 1 Johns. 322

Thompson, J. The title of the lessor of the plaintiff to the premises in question, is not denied, and the only point raised for decision is, whether the defendant was entitled to notice to quit, prior to the commencement of the action.— If. the defendant is to be considered a tenant at will, it has been settled in this court, that notice to quit was not necessary ; if he is to be regarded as a tenant from year to year, notice was requisite, unless he has done some act amounting to a forfeiture of this right.

I am inclined to think, that the defendant can certainly be viewed in no more favourable light, than as a tenant at will—He went into possession as a mere occupant, by permission of those under whom the plaintiff claims; there ivas no time limited for the enjoyment, nor any rent reserved, nor has any ever been paid; neither was there any stipulation to pay him for his improvements. Henry Livingston, under whom the lessor of the plaintiff claimed, had stipulated to pay Gideon Morgan (from whom the defendant got the possession) for his improvements.

And it also appears, but from the defendant’s own declarations only, that Henry Livingston had given him (the defendant^ permission to take off whatever he put on the land. But - nothing appears to show, that the lessor of the plaintiff ever gave the defendant permission to occupy the premises, or made any promise to pay for his improvements. Under such circumstances, I should much question whether the defendant could be considered even a tenant at will. Admitting him to have stood in that relation to Henry Livingston, such relationship was destroyed by the conveyance to the lessor of the plaintiff.

Courts, it is true, have latterly inclined against construing estates into tenancies at will-— Bui; such estates are recognised in- our statute-book, and must have been recognised by this court, in the decision* that such tenants were not entitled to notice to quit».

And if the defendant, in the present case, has any greater estate than a tenancy at will, I should be at a loss to determine what would he an estate at will, though it he said, (3 Burr. 1609) that leases at will, according to the strict legal notion of a lease at will, being in the country found extremely inconvenient, exist only notionally. “ Yet,” says Mr. Hargrave, (Coke Lit. 55, a. Note 3) “ this observation means not that estates at will, may not arise now as well as formerly, but only that it is no longer usual1 to create such estates by express words.” (See also 3 Salk. 223. Woodfall, 188.) De Grey, C.

J. says, (2 Black. Rep. 1173) 66 all leases for uncertain times, are prima facie leases at will, and it is the reservation of an animal rent that turns them into leases from year to year. A general taking under another without limitation of time, or reservation of an annual rent, can be no other than an estate at will.” (2 Sid. 153. Carthew, 101.) There is nothing, in such cases, to afford an implication of the renovation of the lease* after the expiration of a former time, which seems to be the basis upon which the doctrine of tenancies from year to year rests. (1 Term Rep. 162. 4 Com.

Dig. 60.) But admitting the defendant to have been a tenant from year to year, I should think that he had forfeited his right to a notice to quit, by disclaiming to hold under his landlord. It appears that in the summer, previous to the commencement of the present suit, the lessor of the plaintiff offered to lease the premises to the defendant, but that the defendant told him he did not thank him for his offer, that he had as good a title as he had.

It also appears, that at the time the declaration in ejectment in this cause was served, the defendant, after some conversation with the witness about his improvements, declared that he had been in possession more than thirty years, and that he meant to keep it. This declaration was, in point of fact, untrue, for he had been there but about eighteen years, and it was setting up in himself a possessory title, in hostility to the right of the lessor of the plaintiff, who, upon the trial, he claimed to be his landlord.

It is not denied, that these declarations of the defendant, if they had been made prior to the commencement of the suit against him, would have' amounted to a forfeiture of his right to notice So quit. (Buller N. P. 96.) I cannot discover how their being made after the commencement of the suit, will make any difference.

It is not the case of the landlord’s giving notice to quit after the commencement of his suit, where notice was acknowledged to be necessary; but it was deriving testimony from the confession and declarations of the defendant, to show that he had set up a title in himself, which was at war with the one he claimed upon the trial, and thereby placed himself in a situation, that did not require notice to quit. If the defendant be tenant to the lessor of the plaintiff, he is made so by operation of law, and not by any contract between the parties.

There was nothing to prevent the defendant from setting up a title in himself, which he did by claiming to hold by virtue of thirty years possession ; his declarations were retrospective, and went to a denial that the relation of landlord and tenant ever existed between him and the lessor of the plaintiff, and that he intended to • rely upon his adverse possession. That the confessions of a party were made after the commencement of the suit, can be no objection to their admissibility, in evidence against him. My opinion, therefore, is, that-the nonsuit ought to be set aside, and a new trial awarded. Spencer, J.

The plaintiff was nonsuited at the trial, for not having given notice to quit. After the service of the declaration in ejectment, the defendant made declarations which may amount to a disclaimer of the title; but these declarations cannot aid the plaintiff, he ought to show a complete right to the possession" prior to the day of the demise, and the institution of the suit. It appears that in the summer before, the defendant had refused a lease from John Livingston, saying he had as good a title as he had.

This evidence I did not, at the trial, nor do I now think, evidence of a disclaimer, because, the defendant entered under Henry Livingston, and it did not appear that he had any information of the transfer of his title to the lessor. When a party who is tenant, has an indubitable right to notice, and it is sought to deprive him of it, on the ground of disclaimer, he ought to be made connuzant of the right of a third person demanding his possession.

On the principle, therefore, that the defendant did not controvert Henry Livingston’s title, and was a stranger to his alienee, I do not think that what he said was such a disclaimer, as to be a waiver of notice to quit, if by law he was entitled to it.— This presents the only remaining- question, whether the estate of the defendant was a tenancy at will, or for years. In the year 1788, the defendant went into possession, under a permission given by Henry Livingston, with leave to erect such buildings as were convenient.

After so long a possession, and under such circumstances, it cannot, I think, be doubted, that the tenancy would be from year to year. Christian, in his notes to Blackstone’s commentaries, says, “ a lease at will, is now considered a lease from year to year, which cannot be vacated without half a year’s notice to quit,” and he is supported by the text.

Tenancies at will exist nominally, and good policy, as well as common justice, seems to demand that a holding, for an indefinite period, should be construed a tenancy from year to year ; that no sudden determination of the estate, by the caprice of the lessor, should immediately dispossess the tenant; and, more especially, when he is in possession, not as a trespasser, j but by right, that he should not, without the least notice, be subjected to the costs of a suit hi ejectment.

It is true, that the reservation of a yearly rent, is one of the criteria by J J which to distinguish a tenancy from year to year; but; m ^good sense, the landlord’s right to sue for uSe and occupation, is equivalent to an express reservation of rent. I am still of opinion, that the nonsuit was right, and that the plaintiff should take nothing by his motion, Kent, C. J. concurred. Timmins v. Rowlinson. Ree v. Lees. Right v. Darby. 2 Black. Com. 147, 9. 3 Burr. 1609.