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Prouty agt. Prouty.

time of the application holding over without the permission of the landlord?"

The questions thus presented are new and of great practical importance. I am required to review them with all the care which these considerations and the rights of the parties impose. It was my wish to dispose of the case at the term at which it was argued; but time did not then allow me to give to it that thorough investigation which I desired.

By our first statute allowing summary proceedings for the removal of tenants (Statute of 1820, p. 176, § 1), such proceedings are authorized against “ tenants or lessees at will, or at sufferance, or for part of a year, or for one or more years, or from year to year.”

The Revised Statutes of 1830 (2d vol. 3d ed. p. 603, § 28) and the statute of 1849, omit the phrase "from year to year.No allusion to this change is to be found in the Revisers' notes, or in any of the cases cited on the argument.

The counsel for the tenant argue that by omitting those words from the statute of 1830, the revisers and the legislature intended to exclude from the operation of the act the estate described by them.

On the other hand, it is insisted that this phrase was omitted because that which was previously an estate from year to year was converted by the Revised Statutes into a tenancy for a single year—terminating by legal implication at the end of each year. The position of the respondent's counsel on this point, fully stated, is this:

That, although prior to 1830 (when terms for three years might be created by parol), the appellant's estate would have been from year to year; yet that, since the Revised Statutes have made void all leases by parol for more than one year, such limitation necessarily abolished the estate from year to year as known to the common law; because such an estate could only be created by convention, expressed or implied, between the parties, for a term exceeding one year; that, as the continuance of the tenant beyond the stipulated term always implied a renewal of the original

Prouty agt. Prouty.

contract; and the statute of 1830 not allowing parties to lease by parol for more than one year; the law will not imply an agreement which the parties can not lawfully make, but that it does imply a lawful agreement, i. e., for one year certain, and so on for each year of occupancy_limiting the term, by implication, to the current year and making it expire with such year. That, as a consequence of this change in the law, the tenant, who enters under a parol demise for more than one year or for an indefinite period, must be deemed to hold over after the expiration of each year in like manner as if he had entered under a parol demise for one year only and held over after the close of that year without the consent of his landlord expressed or implied That therefore, the appellant in this case was a tenant for one year, and not entitled to any notice to quit, being within the phrase, retained in the Revised Statutes, a tenant “ for one or more years."

It is further insisted on the part of the respondent that the abrogation, thus effected, of the common law estate from year to year, led the Revisers to omit that estate from the Landlord and Tenant act as one no longer known to our laws.

These views have been very earnestly and ably enforced by the counsel for the landlord, and authorities have been cited to sustain them. It becomes necessary to examine these positions carefully; for, if they are sound, they are conclusive against the first and second points taken by the appellant, and settle two very practical and important questions.

In the first place it may be remarked that the Revisers did not recommend the changing of the term for which parol leases may be made from three years to one.

The statute of frauds as submitted to the legislature retained the old term of three years. The legislature changed it to one. It would seem, therefore, not to have been the purpose of the Revisers to effect the change contended for Still it may have been wrought out whether the revisers or the legislature intended it or not. But we must not adopt without full consideration a construction which will work so important a change in our jurisprudence. This description of tenancy is

Prouty agt. Prouty.

perhaps one of the most common and convenient among men, and it will continue to exist in fact, whatever changes may be made by the legislature in respect to the privileges belonging to it.

At an early period in the history of English jurisprudence—so long ago as the Year Books—the wisdom of the common law, “ in order to avoid so great injustice as would be the turning out of a tenant from year to year suddenly, or upon short notice, as a strict tenant at will might have been turned out, attached to such an estate the right to six months notice to quit, terminating with the year.This right has been preserved and has constituted the distinguishing characteristic of such a tenancy in England and in this state, certainly down to the enactment of our statute for summary removal of tenants. It is a rule moreover founded in justice and reason and should not be abrogated by inference or implication.

Chancellor Kent, treating “ Of Estates at Will,” in the 4th vol. of his Commentaries (p. 114), says: The resolutions of the courts, turning the old “estates at will into estates from year to year, with the right on each side of notice to quit, are founded in equity and sound policy, as they put an end to precarious estates and to the abuses of discretion."

The same learned commentator remarks (ib. pp. 115–16), that the Roman law, like the English, was disposed as much as possible, and upon the same principles of equity, to construe tenancy at will to a holding from year to year, and to give to the tenant the reasonable right of notice to quit; that, “ when the sages at Westminster were called to examine the same doctrines, with a strong if not equally enlightened sense of justice, they were led to form similar conclusions, even though they had to contend in the earlier period of the English law, when the doctrine was first introduced, with the overbearing claims of the feudal aristocracy and the scrupulously technical rules of the common law.”

Upon the case of Ellis vs. Paige reported in 2 Pick. (Mass.) R. p. 71, Mr. Kent, in a note at page 113 of the 4th volume of his Commentaries, uses the following language: “The opinion of Judge Putnam contains a full and broad view of the whole

Prouty agt. Prouty.

ancient and modern law upon the subject, and he established, by authority and illustration, the necessity of reasonable notice to quit in all cases of uncertain tenancy, whether under the name of tenancies from year to year or at will. He showed that the doctrine was grounded on the immutable principles of justice and the common law; and was introduced for the advancement of agriculture and the maintenance of justice, and to prevent the mischievous effects of a capricious and unreasonable determination of the estate.”

It is contended by the respondent's counsel that this ancient and time honored right of notice to a tenant from year to year, is taken away by the Revised Statutes, and that the estate itself is in effect abolished, as the necessary legal consequences of changing the term for which parol leases may be created, from three years to one.

But I apprehend that it was never essential to a tenancy from year to year that the original demise should be for more than one year. That estate is not in this case, and need not be in any case, founded upon express contract; but may grow out of the subsequent acts or omissions of the parties. The relation arises from the circumstances in which they place themselves to each other during the occupancy.

Out of these circumstances the common law, without conventional arrangements, created this particular description of estate and attached to it the just and reasonable right of six months notice to quit before it could be terminated. Such is the doctrine of the common law, whether the tenant entered under an agreement for an indefinite period, or for one or more years, and held over with the permission of his landlord, and, in some cases, when the original entry was without privity between the parties.

I proceed to extract, without comment, the doctrine of some leading cases in England and in this country, bearing upon these points:

1st Term Rep. 159.—“ Notice is necessary in all cases where the duration of the tenant's term or interest is not fixed and limited by previous agreement, as if he hold from year to year as

Prouty agt. Prouty.

long as both parties can agree; for, in that case, neither party can determine the tenancy without giving notice to the other.”

3d ib., 13.—“ The tenancy from year to year succeeded to the old tenancy at will, which was attended with many inconveniences, and, in order to obviate them, the courts very early raised an implied contract for a year, but added that the tenant could not be removed at the end of the year without receiving six months notice” (See also 2d Crabb's Law of Real Property, p. 269, § 1570.)

Esp. Rep. 265.—“ If there be a lease for a year certain, and, by consent of both parties, the tenant continue in the possession afterwards, the law implies a tacit renovation of the contract; the parties are supposed to renew the old agreement, which was for one year. But then, it is necessary, if either party should be inclined to change his mind, that he should give the other party half a year's notice before the expiration of the next or any following year.” (See also 1st T. R. 85; 8 ib. 3; Woodfall's L. & T. 164; 1st Cruise on Real Property, 84; 2d Crabb L. of R. P. S 1306, 1518, 1566, 7, 8, and 9.

5 Term Rep. 47.—“ Though a lease be void by the Statute of Frauds, as to the duration of the term, the tenant holds under the terms of the lease in other respects, and can only put an end to the tenancy at the expiration of the year."

1st Cruise on Real Property; p. 277, $29.--“Where an agreement for a longer term than three years is made by parol which is void as to the duration of the term, there is a tenancy from year to year, regulated in every other respect by the agreement.”

Morehead vs. Watkins, 5 B. Monroe Rep. p. 228 decides that though by the statute of Kentucky no action can be maintained on a verbal lease for more than one year yet, if the lessee occupies under such lease, he is entitled to six months notice to quit.

The following cases decided by the courts of this state, are equally adverse to the doctrine contended for by the respondent's counsel:

In Jackson vs, Salmon (4 Wend. R. 327), Ch. J. SAVAGE remarked: “The only question is, whether the defendant was

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