Jackson ex dem. Dill v. Tyler — 2 Johns. 444

Majority

p. 443

Jackson, ex dem. Dill and others, against Tyler.

Headnote

whorTtheTe’ fendant had sessk>nnio°or 12 years, and about 6 years afterhe enter-ifssora of the told might^continue in possession.andwork on the lamí as he ,°OTid sen it to him, and

Tins was an action of ejectment, for land in the town .of Aurelius, county of Cayuga. The cause was tried be-*"ore ^1'- Justiee Livingston, at the Cayuga circuit court, the 9th day of'June, 1806. The defendant confessed , .. l^ase, entry, and ouster 5 and it was proved that he was Possess’lon of tlle premises claimed. The plaintiff gave in evidence, in support of his title, a patent to one of ^le ^essors plaintiff, for the premises in question, and there rested his cause. The defendant then produ- , . „ . _ , . . 1 ced RR award ot the Onondaga commissioners, made on the 13th day °f ®ecember’ iSOO, by which they awarded to Robert Dill, one of the lessors of the plaintiff, in fee

p. 444

the defendant at the trial disclaimed holding adversely,it was held, that the entry of the defendantwas adverse, and that the relation of landlord and tenant did not exist between the lessors of the plaintiff andthedefen dant, so as to entitle thelat-ter to a notice to quit, previous to the commencement of the action.

simple, four undivided gevenths of the lot in question; and to Benoni H. Howell, Eunice Howell, and Melicent Howell, three of the lessors of the plaintiff, in fee simple, the remaining three undivided sevenths of the said lot; the defendant disclaimed' holding the possession of the premises, adversely to the lessors of the plaintiff. The defendant also proved that he had been in possession of the premises for ten or twelve years last past; and that about six years ago, Robert Dill, one of the lessors above named, told the defendant that he might continue on the land in question, and work on the same as his own ; that he would sell the same to him, and that he might proceed and make improvements on the premises, for he should have the land.

The judge decided, that the defendant ought to have notice to quit the premises, before the suit in ejectment was brought against him. The lessors of the plaintiff not being able to prove such notice, a nonsuit was entered, with liberty for the plaintiff to move to set it aside.

On a motion to set aside the nonsuit, the case was submitted to the court without argument.

delivered the opinion of the court. The plaintiff was nonsuited on the trial, on the principle that a notiee to quit ought to have been given to the defendant, prior to the commencement of the suit. *It is to be inferred from the case, that the defendant, ten or twelve years before the trial, entered on the premises, without any permission from the lessors of the plaintiff. About six years before the trial, Robert Dill, one of the lessors, and who appears to have been entitled only to four sevenths of the land claimed, told the defendant to continue On the land and work it as his own, and that he would sell the same to him. This case is distinguishable from those of Jackson, ex dem. Livingston, v. Bryan,^[1] and Jackson, ex dem. Benton, v. Laughead.^[2] In the former there was an acknowledged tenancy; in the present,

* 1 Johns. 332 .

† † Ante, 75.

p. 445

the entry was tortious, and the subsequent assent lo the continuance of possession was for the specific and declared object of purchasing. The other case bears less analogy; for, though the tenancy was not in consequence of an express compact, it was irresistibly implied by law. The rights of the parties in the present case, were not mutual; for, the lessors of the plaintiff could not have recovered on the ground of a tenancy, as there does not appear to be any assent by the defendant to the proposition made by one of them, nor any acknowledgment of his right. I still think, that courts of law ought, to the utmost of their power, without invading established principles, to require a notice to quit, where the relation of landlord and tenant exists. In this case I do not perceive a trace of that relation;^[3] for, as' has been observed, the first entry was not under the lessors of the plaintiffs, and the subsequent assent of one of the lessors was, that the defendant might hold with a view to a purchase. Under these impressions, we think the judge incorrect, in requiring proof of a notice to quit, and that, therefore, the nonsuit must be set aside, with costs to abide the event of the suit.

Rule granted.

‡ ‡ Jackson v. Chase, ante, 37.