Wheeler v. Cowan , 25 Me. 283 ( 1845 )

The opinion of the Court was by

WhitmaN C. J.

By the Rev. Stat. c. 128, § 5, a lessor may proceed as and for forcible entry and detainer, against his lessee, who, after the expiration of his term, unlawfully refuses to quit the premises leased, thirty days notice in writing having been previously given him to do so. The defendant had held the premises in question, under the plaintiff, by a lease in writing, for the term of one year, ending on the first of April, 1842; and had held over ever since. In January, 1844, due notice was given him by the plaintiff to remove therefrom; and, after the expiration of thirty days from the giving of such notice, the defendant remaining still in possession, this process, under the above statutory provision, was instituted. Thus the plaintiff would seem to have made out a case, prima facie, within the literal import of the statute.

The defendant in his brief statement, after pleading the general issue, it seems, from the arguments of counsel, for it does not appear expressly in the statement of facts, alleges a right to hold adversely to the plaintiff, as the tenant of one Isaac Cowan; or if not so, that he holds under a lease from the plaintiff, for a term not-yet expired. Both of these grounds, however, would seem to have been abandoned at the trial; and under the general issue, probably, by way of showing'that he did not, in the language of the statute, hold over unlawfully, he sets up a tenancy at will under the plaintiff; and, to maintain this ground, first offers to prove, that, on the 24th of March, 1841, the day on which the lease for a year was executed, but subsequently to its execution, it was verbally agreed between the parties, that, after the expiration of the term therein agreed upon, the defendant should continue to occupy the premises, until the affairs between the plaintiff and said Isaac Cowan were settled ; and that those affairs had not yet been settled. • This evidence was objected to, and was clearly inadmissible — first, because it proposed to prove a contract, pot to be performed within one year, and, secondly, because it purported to be a contract in reference to an interest in or concerning real estate, contrary to two of the provisions in c. 136, <§» 1, of the Rev. Stat. Other objections were insisted upon, but these were sufficient.

The defendant, next, insisted that, by the conduct of the plaintiff, he had been constituted his tenant at will. And for this purpose he relies upon his having been permitted, by the plaintiff, without any demand of possession by him, to remain in possession from the termination of the lease, which was on the first of April, 1842, till January, 1844. This, according to the English common law, would, undoubtedly, constitute him a tenant from year to year. Comyn’s Landlord and Tenant, p. 9; Hollingsworth v. Stennett, 2 Es. Ca. 716. But by the law of this State and Massachusetts, it would constitute him a tenant at will only. Ellis v. Page & al. 1 Pick. 43. And our Rev. Stat. c. 91, <§> 30, expressly provides, that “no estate or interest in lands, unless created by some writing and signed by the grantor or his attorney, shall have any greater force or effect, than an estate or lease at will.” This must be regarded as reducing, what would otherwise be a tenancy from year to year, to a tenancy at will. And the Rev. Stat. c. 95, <§>19, provides that such an estate can be terminated by the landlord only, by giving the tenant notice in writing to quit possession; and if the tenant, according to the same provision, has paid rent regularly and promptly, according to the terms upon which he must be deemed to hold, he will not hold wrongfully till after three months from the time of receiving such notice; and. if he has refused or neglected to pay such rent, his right to remain in possession will terminate in thirty days after such notice. Till the happening of one or the other of these events, the tenant, in the language of the act, under which this process is instituted, could not be considered as unlawfully refusing to quit possession.

In this case it appears, that nearly two years had elapsed, while the defendant was holding over. When a tenant is permitted to hold over, it is to be presumed, that he does so, as to the payment of rent, upon the same terms as had been agreed upon in the lease. It does not appear, since he has so held over, that he has ever paid or offered to pay any rent. His right, therefore, under the statute, to remain in possession, terminated at the end of thirty days, after he had notice to quit the premises; and, therefore, he held unlawfully, and became subject to this process.

Judgment for the plaintiff.