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Prouty agt. Prouty.

to year,

entitled to notice to quit. He had hired the premises for one year and continued in possession after that period. He was tenant from year to year and entitled to notice. .

The doctrine in Bradley vs. Covell (4 Cow. Rep. 349), is that a tenant entering for an unlimited period, is a tenant from year to year, and entitled to notice; that a continued possession, or other circumstances, convert a tenancy at will into “a tenancy at will from year to year,” and imposes the necessity of giving six months notice.(See also 1 John. R. 325; 8 Cowen, 230; 11 Wend. 619.

It has been repeatedly held by the courts of this state, before the statute of 1830, that a tenant under a parol demise who continued in possession beyond the period of three years, was a tenant from year to year, and entitled to notice to quit. As in Schuyler vs. Leggett (2 Cowen, 660). “Though a parol demise for seven years be void by the statute of frauds, yet it enures as a tenancy from year

if the tenant enter and hold under it, and it will regulate the terms of the tenancy in all other respects."

Prindle vs. Anderson (19 Wend. R. 391, reviewed by the Court for the Correction of Errors, 23d ib. 616), was a case of a parol demise made subsequent to the statute of 1830, and yet the court held that the circumstances should work a yearly or monthly tenancy and that such a tenant was entitled to notice to quit.

This estate from year to year, is distinctly recognized as belonging to a tenant who enters under a parol demise for more than one year in the late case of Wibber vs. Sherman (3 Hill R. 25), and still later, in Conway vs. Starkweather (1 Denio. 114), Ch. J. BRONSON says:

“ When a tenant under a demise for a year or more holds over after the end of his term without any new agreement of his landlord, he may be treated as a tenant from year to year, and in all other respects as holding according to the terms of the original lease. He will be a tenant if the landlord either receives or distrains for rent after the end of the original term; and when he neither says or does any thing, his acquiescence may perhaps be inferred from the mere lapse of time"

I am not able to perceive any connexion between the changes

Prouty agt. Prouty.

in the statute of frauds and the landlord and tenant act; and am constrained, by the force of the authorities referred to and upon principle to dissent from the positions of the counsel for the landlord in the case before me, and to hold that the court below (while correctly deciding that this tenant had an estate from year to year in the premises), erred in ruling that he was not entitled to any notice to quit.

I find myself equally unable to adopt the views presented, and urged with great force, by the counsel for the appellant, viz: Ist. That the omission of the phrase "from year to year,” from the Revised Statutes and the statute of 1849, left the justice without jurisdiction in this case; or, 2d. That if such a tenant may now be removed by these summary proceedings, he must first have siz months notice to quit.

It is not without some hesitation that I put the law of this case upon grounds not taken by the learned counsel on either side, and not even suggested by counsel or court in

any

of the cases which have arisen in this state under the landlord and tenant act since the revision of 1830. But, have reached the conclusion after much investigation and reflection, that it was not the intention of the legislature to leave tenancies from year to year out of the operation of that act, and that this description of estate is comprehended by the term “ TENANT AT Will,” as used in the Revised Statutes and in the statute of '49.

An estate "from year to year," or what came to be so called, was originally an estate at will, strictly. But the courts, by a species of judicial legislation, founded on principles of equity and public policy, attached to such an estate the right to half a year's notice of the will of the landlord, or lessee, to terminate it. Still it remained an estate at will, qualified only by the new rule of notice which controlled the exercise of such will, in respect to the time when it might take effect, and the mode in which it should be manifested. Accordingly the ablest commentators and compilers, in England and in this country, treat of this description of tenancy under the head “Of Estates at Will,(Cruise on Real Property, p. 270; Kent Com. 4 vol. p. 110.)

Prouty agt. Prouty.

In Parker vs. Constable (3 Wilson's Rep. 25), Ch. J. Wilmot remarked: “It has not been doubted of late years that half a year's notice to quit must be given to a tenant at will.” The facts of this case are not given by the Reporter, yet it was doubtless that of a tenancy from year to year; for Mr. Crabb in his “Law of Real Property,” (2 v., p. 268, § 1568), cites the same case in these words: “ It has not been doubted of late

years

that half a year's notice to quit must be given to a tenant at will (that is an implied tenant from year to year), before the end of which an ejectment will not lie to turn him out of the farm.”

At § 1565 the same author says that, "prima facie,” all leases for uncertain terms create a tenancy at will."

Woodfall's L & T. p. 165, (treating of tenancies from year to year) uses this language: “ Half a year's notice to quit must be given to a tenant at will (that is a yearly tenant), or his executor, or an ejectment will not lie.”

The Case in 2 Pick. (Mass.) R. p. 70, before cited, was a letting from month to month; yet it was held to be a tenancy at will.

In Bradley vs. Covel (8 Cowen R. 349), WoodwoRTH, J., “a tenancy at will is held to be a tenancy from year to year, merely for the sake of a notice to quit;" and the courts of this country have in repeated instances used the phrase “ tenant at will” and “tenant from year to year” indiscriminately. By. a statute of this state (§ 1 of title 2; art. 1 ch. 1 of pt. 2 of the R. S. 2d vol. 3d. ed. p. 9), “ Estates in lands are divided into estates of inheritance, estates for life, estates for years and estates at will and by sufferance.”

Unless, therefore, the estate from year to year is embraced in one of these divisions it can not be any longer known to our laws. I do not perceive any legal foundation for ranging it under other of the statutory divisions than that of an “Estate at will.” Indeed a tenant from year to year is one holding such a relation to the owner of the premises that he has a legal right to occupy them from year to year as long as they please, but he must quit, at the end of any year, when the landlord manifests his will to that effect by the legal notice.

any Prouty agt. Prouty.

At common law this notice was for half a year, terminating with the year. This the wisdom of its judges deemed but a reasonable notice to a lessee from year to year of a farm or a tenement, that he must turn out. But this common law right, was of course, subject to legislative control, which could abridge or take it away at pleasure. This power over the subject has been exerted by the legislature of this state in the enactment of 97 of title 4th, ch. 1, p. 2 of the R. S. (2d vol. 3d ed. p. 30), in these words; “Wherever there is a tenancy at will, or by sufferance, created by a tenant's holding over his term, or otherwise, the same may be terminated by the landlord's giving one month's notice in writing to the tenant requiring him to remove therefrom."

The wisdom of the legislature has thus reduced the term of the old common law notice from half a year to one month.

The commissioners of the revision of 1830, with a view to the making notices to all descriptions of tenants at will or sufferance“whether created by the tenant's holding over his term or otherwise”-uniform; and to get rid of the six months additional notice required by the decision in the case of Bradley vs. Corel (4 Cowen,,149), and deerning three months notice sufficient in all cases, submitted this section 7, with that term, to the legislature; but that body struck out three monthsand substituted month(see the Revisers' Notes to $87, 8, 9 and 10, 3d vol. 2d ed. p. 599). In this connection $1, above cited (p. 9, 2v. R. S.), may be considered as bearing upon my position.

I conclude, therefore, that the phrase " from year to year,” was ommitted from the statute of 1830, because that particular description of estate was understood to be embraced by the term “ tenant at will," and that estates described by that phrase may be terminated by a notice of not less than one month.”

This section 7, and the 9th section of the same title, were undoubtedly adopted without due consideration; for supposing that they were intended to apply to tenancies from year to year, and giving to them a literal interpretation, they would enable a landlord to turn out the yearly tenant of his farm at any time during the year-even in seed or harvest time.

one

Prouty agt. Prouty.

I think that these sections may receive a construction more in accordance with the principles of reason and justice; and that it is not too liberal to suppose that, whilst it was the intention to abridge the term of the old notice, it was not the purpose to interfere with the well settled rules of the common law in respect to the time when such notice should expire; but to leave those rules still in force, so that the one month's notice required by the 7th section must, when given to a tenant at will from year to year, terminate with the year of the tenant's holding, if to a tenant from month to month, with the month, &c.; and that such tenant will not be holding over after the expiration of his termwithin the meaning of the landlord and tenant acts, until the expiration of such notice. To give to those sections the stringent construction which their language will allow, as being within legislative intention, would be to suppose a design to bring the tenantry of this state within the rigors of that feudal system from which, as we have seen, the old judges rescued the tenantry of England. Even with the more benign interpretation which I am disposed to give to these sections, they retain quite enough of the odor of feudality; for to turn out a husbandman who is cultivating a farm from year to year, upon only one month's notice, expiring with the year, is certainly sufficiently “summaryand may work great wrong and injury to the tenant. To turn him out without any notice whatever, as it is insisted by the respondent's counsel (on the authority of the cases in 8th Cow. and 11th Wend.), may now be done, would be to restore in all its sternness, the old rule, against which the sages of the English common law successfully struggled.

The affidavit upon which the proceedings in the case before me are based, states that more than two month's notice to quit on the 1st May 1850, was served on the appellant.

To the sufficiency of this affidavit he took on the return of the summons, and before putting in his counter affidavit the objections stated at the head of this opinion. Upon those objections the justice decided that no notice whatever was necessary. In view of this decision the counter affidavit was interposed, and it

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