Phillips v. Covert

7 Johns. 1

Opinion

[Kent, Ch. J.

The statute of frauds defines an estate at will. Tenancies at will are now held to be estates from year to year, merely for the sake of a notice to quit. As to every other purpose, they are regarded as mere tenancies at will.]

Here was a letting without any determinate period of time, and rent reserved. It was, therefore, a tenancy for years;

‡ and the tenant was entitled to notice to quit, ■> . . , ■ . and might assign his interest.

The law by which the present case is to be decided has been settled by this court in Campbell v. Arnold,§ and Tobey v. Webster.§

Occupation implies possession, and trespass can only be brought by him who is in the possession of land.**

The proper remedy of the plaintiff is by an action of waste, or an action on the case, †† This is an action of trespass quare clausum fregit, which is very different from an action de bonis asportatis.

Per Curiam.

There is no doubt but that an action of trespass will He against a tenant at will for voluntary waste, as in the cutting of timber; for the injury amounts 0 i to a determination of the will and of his possession, (Co. Litt. 57. a. 5 Co. 13. a. Cro.Eliz. 777. 784.) The defendants in this case were nothing more than tenants at will, for the purpose of this action, even if they were entitled to be considered as holding from year to year, for the purpose of a notice to quit; and they would have had no right to such notice, after they had determined the will. The nonsuit must be set aside, and a new trial awarded, with costs to abide the event of the suit.

Rule granted.

B Term Rep. S. 3 Burr. 1609.

1 Johns. Rep. 512.

5 East's Rep. 435.

3 Lev. 131. 209. 3 Woodles, 103.