Patton v. . Axley

50 N.C. 440

• Court: Supreme Court of North Carolina
• Decided: August 5, 1858
• Status: Published

Opinion

Pearson, J.

This case turns upon the construction of the deed, which is set out as a part of the record. His Honor was of opinion that its legal effect is to create a tenancy at will, we are of opinion that its legal effect is to create a tenancy from year to ymr, and consequently, the notice given was not sufficient ; for, to determine an estate from year to year, six months’ notice, either on the part of the lessor, or of the tenant, before the expiration of the ewrrent year, that at that time the estate will be considered as terminated, is necessary. This is familiar learning in the text books.

We arrive at the opinion that the deed creates a tenancy from year to year : from a consideration of the purpose, for which the lease was made : — that the rent reserved is payable quarterly :■ — that a condition is annexed, whereby the term is to be forfeited by a non-user, for one year, on the part of the lessors, who were to work the mine ; — -that they have, at any time, the right to discontinue the operation of the mine, and that the formality of a deed, would hardly have been thought necessary, if only a tenancy at will was to be created, which could be terminated, at any. time, upon reasonable notice ; Kitchen v. Pridgen, 3 Jones’ Rep. 49.

Pee Cuexam, Judgment reversed, and judgment of non-suit, according to the case agreed.

His Honor, the Chief Justioe, was absent during the whole of this term, on account of sickness.