Sperry vs. Sperry, 8 N.H. 477

Parker, J. No question about notice to quit arises on these pleadings. .The plea of the tenant admits him to be in possession, claiming a freehold. 2 N. H. R. 10, Mills vs. Pierce; Stearns on Real Actions 232; 7 Mass. R. 381, Pray vs. Pierce; 5 Mass. 352, Iligbee vs. Rice; 8 Cranch 243, Green vs. Lister; Jackson R. A. 91, 157. If he relied upon a tenancy at will, and want of notice to quit, he should have pleaded non tenure specially. What notice may be required by a tenant at will is not fully settled.

The instrument executed by the demandant to the tenant cannot be regarded as a surrender of the term in the lease, merging the freehold estate in the fee, because the lease was made by two, and the conveyance by the demand-ant is to but one of them. It does not, therefore, pass back to the original lessors. And besides, it is not an absolute conveyance; but there is a provision by which the demand-ant might regain the estate, if the money was not paid. Had it been to both lessors it could have been construed but a conditional surrender, which would not avail the tenant.

It is not material, at this time, to settle whether this instrument, executed by the demandant, is technically to be regarded as an assignment of the lease, the assignee rendering $¡10 quarterly as rent, to the assignor, with a right of reentry on the part of the assignor if the rent should not be paid, as has been argued by the tenant’s counsel; or whether it is, in point of law, a conveyance of the right of the demandant, Ebenezer Sperry, upon condition that such sum should be paid. Litt. sect. 329. The effect, in either case, is the same, upon this action.

Under it the tenant has rightfully entered into possession, and he is entitled to hold, subject to a liability to forfeit his right, upon the non-payment of the money. If it be regarded as ail assignment of a lease by the de-mandant, with a reservation of rent, payable quarterly, and if the right to hold might be forfeited by non-payment, — in order to enforce the forfeiture, and enable the demandant to recover the premises, he must have made a demand of the rent on the day it fell due, upon the land ; and this does not appear to have been done. Bac. Abr., Condition O, 2; 1 Wms. Saund. 287, note 16; 4 N. H.

R. 254, McMurphy vs. Minot; Gilb. on Rents 73; 2 N. H. R. 164, Coon vs. Brickett. And if it be regarded as a conveyance of the life estate of the demandant, on condition that the money should be paid him quarterly by the tenant, there is no evidence that he has ever entered for condition broken, or made claim upon the land — which is necessary, to show his election to enforce the forfeiture, revest the estate, and enable him to maintain a writ of entry. 2 N. H. R. 120, Willard vs. Henry; Co. Litt. 218, a; Cro. Jac. 57, Curteis vs. Wolverston; Shep. T. 150; 8 Pick. 284, 289, Gray vs. Blanchard; 1 Conn.

R. 79, Chalker vs. Chalker. The title does not revest immediately upon the breach, for the grantor may waive the forfeiture, in which case the estate continues. Co. Litt. 208, a; 2 N. H. R. 163; Cowp. 803, Goodwright vs. Davids; 1 Conn. 79. Demandant nonsuit.