Majority
p. 146*Wilde against Cantillon.
Headnote
A tenant at sufferance, cannot maintain an action of trespass against his Iandlord.(a)(a) Hyatt v. Wood, 4 Johns. R. 150, and see Roseoe on Actions rel. to Real Property, 665, and1 references. Upon the general principle, that where a plaintiff has no interest or property in the soil and no exclusive possession, trespass, q. c. f. will not lie. Bro. Ah. Tresp. 174.. Weldon v. Bridgewater, Oro. Eliz. 421. Wilson v. Mackreth, 3 Burr. 1824.
This was an action of trespass quare clausum fregit,- &c. turning the plaintiff out of possession, and reaping and carrying away a crop of wheat, and other injuries. Plea, the general issue.
The cause was tried before Mr. Justice Lewis, at the last September circuit, in the county of Ulster. It appeared in
p. 147
evidence that on the 13th May, 1797, eight persons entered the house occupied by the plaintiff, in the town of New Paltzi in said county, who tore down a part of it, turned him out of possession, and carried his effects into the public highway,, and put one Samuel Buchanan into possession of the house, and of a farm which the plaintiff had occupied with it, whereby the plaintiff lost his crop, as stated in the declaration, which was gathered by Buchanan; that Buchanan afterwards held the premises as a tenant under the defendant, and that the defendant in a conversation with others, claimed the house and farm to be his property, and said that he had obtained the possession and would keep it.
On the part of the defendant it appeared, that the plaintiff had possessed the house and farm as a tenant to the defendant, under a parol demise for three years; that the term had expired previous to the injury complained of, and that the plaintiff had held over, .-and attorned to a stranger; -that the defendant told the plaintiff, in the winter preceding, that he had let the farm to another person, and that the plaintiff could not have it again.
It also appeared, that the plaintiff in a conversation with Buchanan, inquired of him if he had taken the farm from the defendant, and that he answered he had thought -of it, and asked the plaintiff whether he w-ould give up the possession, to which the plaintiff replied, that he would deliver it up at any time, but wished to be permitted to remain until he had' gathered his crop, and finished the fence which he had contracted with the defendant to erect. To this Buchanan consented, observing, that he *was a single [*124] man, and could in the mean time live with the plaintiff.
The counsel for the defendant moved for a nonsuit, on the ground, that the defendant was justifiable in putting the plaintiff out of possession, and that the plaintiff could not maintain this action:; but the motion was overruled by the judge, and the cause submitted to the jury, with a direction as ,to the crop of wheat, that ¡the plaintiff was not entitled to .recover, unless from the evidence they were satisfied that he
p. 148
had a right to remain on the premises, and to cut and take away the crop, in consequence of his agreement with Bucha- - nan, as the tenant of the defendant.
The jury found a verdict for the plaintiff, for 81 dollars damages. At the last term a motion was made on the part of the defendant-for a new. trial, on two grounds.
1st. That the plaintiff, after the expiration of the parol lease, was tenant at sufferance to the defendant, and as such could not maintain an action of trespass against his landlord.
2d. That in relation to the crop, nothing had appeared in evidence to authorize a recovery against the defendant.
S. Smith, for the plaintiff.
• Emott, for the defendant.
delivered the opinion of the court. The first objection in our opinion is decisive. After the expiration ■ of the term, the plaintiff became a tenant at sufferance to the defendant, and his attornment to a stranger was void by the. statute. The manner in which he was dispossessed was violent, and ought not to be countenanced; but he cannot have a remedy in this action. A mere tenant at sufferance cannot maintain tresspass against hjs landlord; (5 Bac. 162,) as against him he- has no legal right of possession, on which to found this action. The plaintiff’s title to recover is,. therefore, radically defective ; and on this ground we think the verdict ought to be set aside..
Radgi-iff, J. having formerly been concerned, as counsel in the cause, gave no opinion.
Rule granted.