Jackson ex dem. Benton v. Laughhead

2 Johns. 75

• Court: New York Supreme Court
• Decided: November 15, 1806
• Status: Published

Opinions

Livingston, J.

We are now to say, without argument, whether a mortgagor be entitled to notice to quit, and if so, when such notice is to be given.

In answering the first question, which is fixing a point of practice, I shall not think it necessary to go through the English cases, which are not sufficiently -uniform to be of much service, nor to ascertain whether a mortgagor be a tenant at sufferance, or at will, or from year to year. It is sufficient for my purpose, that he occupies with the mortgagee’s consent, and that by a perfect understánding between them, he uses the premises as his own. Most commonly his interest is much greater than that of the mortgagee, and in practice we know, that no tenant at will, for years, or even for life, exercises such unlimited dominion over land as the mortgagor. It comports then, neither with reason nor feeling, to permit him to be put to the expense and vexation of an ejectment, without a previous request to quit. This is no hardship on the mortgagee, while a contrary practice may be much abused, in a country where so many thousand estates arc held in this way. Without any nice disquisition of the

rights and duties of particular tenants, (which may per-, plex, but cannot elucidate the question,) I am ready to say, that no person who holds land by another’s consent, for an indefinite period, ought ever to be evicted by ejectment, at the suit of such party, without a previous notice to quit. This should especially be required in all cases of mortgages, because the mortgagor may not only surrender the possession of the land, but may protect himself against an action by payment of the money due. The case of Keech v. Hall, in Douglass, 21. is not an authority here, and it is enough to say that we may be permitted to regulate a mere matter of practice, even in opposition to what may, under other circumstances, be deemed abetter course in Westminster-Hall.

If a notice be requisite, to be reasonable, it should be delivered six calendar months previous to the service of a declaration. The defendant, therefore, is entitled to judgment.

Kent, Ch. J. Spencer J. and Tompkins, J. concurred.