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In case a tenant for a year or more holds over after the end of his term, without any new agreement with his landlord, he may be treated, at the election of his landlord, as a trespasser or as a tenant from year to year, and holding in all other respects upon the terms of the original lease. Distraining for the rent, by the landlord, while that remedy existed, was held to be an unequivocal affirmation of the tenancy. The tenant has no such election; and if he holds over, though for a very short period, without any unequivocal act at the time, to give his holding the character of a trespass, he cannot deny that he is in as tenant, if the landlord elects to treat him as such ; and the fact that before his term ended, he refused to keep the premises another year, even at a reduced rent, does not rebut the presumption of his holding over as tenant. (Conway v. Starkweather, 1 Denio, 113.)
The termination of an estate from year to year is at the period when the year expires from the first commencement of the term. In the rural districts this is of but little consequence, though it may lead to a want of uniformity in the termination of this class of estates. But it would be attended with some inconvenience in a large commercial city. It has been guarded against in the city of New York by the revised statutes. Thus, it is enacted that agreements for the occupation of lands or tenements in the city of New York, which shall not particularly specify the duration of such occupation, shall be deemed valid until the first day of May next after the possession under such agreement shall commence, and the rent under such agreement shall be payable at the usual quarter days for the payment of rent in the said city, unless otherwise expressed in the agreement. (1 R. S. 744, § 1.)
SECTION III. Of estates at sufferance, and herein of the action for use and occu
. pation. The estate at sufferance is of unfrequent occurrence. It was thus described by Lord Coke. (1 Inst. 57 6.) Tenant at sufferance is he that at the first came in by lawful demise, and after his estate ended continues in possession; and wrongfully holdeth over. The primary diversity between a tenancy at will and a tenancy by sufferance is that the former is always by right, and the latter, though the entry may be by right, the holding over is by wrong. (Id.)
Where the tenant pur auter vie continues in possession after the decease of cestui que vie, or a tenant for years holds over after the expiration of his term : in both these cases the original entry was lawful : but the subsequent holding over unlawful, thus creating an estate at sufferance. The original entry was by the act of the party and not by the act of the law. Such tenant was originally held as a mere naked possessor, standing in no privity to the landlord, and not entitled to notice to quit. (Jackson v. Parkhurst,»5 John. 128. Same v. McLeod, 12 id. 182.) It is to estates of this description that the statute referred to in the preceding section (1 R. S. 745, $ 7,) emphatically applies, as was expounded by the court of appeals in Livingston v. Tanner, (4 Kernan, 67.) Though general in its terms, it should be construed with reference to its subject matter, and other enactments in the same chapter. It thus gives to the tenant at sufferance who has come in by act of the parties, a right to a notice of one month to remove from the premises before instituting judicial proceedings for his removal. This abridges the common law right of the landlord in such cases, who could formerly enter upon his tenant without being treated as a trespasser, for such entry.
But there is another class of cases where the tenant comes into possession by the act of the law, and holds over, in which cases no notice is required to be given; and the tenant is treated as a trespasser and liable in that character to all the damages the rightful owner has sustained. Thus, where a person as guardian or trustee of an infant, or a husband seised in right of his wife only, and every other person having an estate determinable upon any life or lives, who after the determination of such particular estate, without the express consent of the party immediately entitled after such determination, holds over and continues in possession of any lands, tenements or hereditaments is required to be adjudged a trespasser. And the party entitled to such lands, tenements or hereditaments, upon the determination of such particular estate, or his executors or administrators, is allowed to recover in damages against every such person so holding over, and against his, her or their executors or administrators, the full value of the profits received during such wrongful possession. (1 R. S. 749. § 7. Livingston v. Tanner, 4 Kern. 64. Tousey v. Tousey, Id. 430.) A person holding in such a case, is not entitled to notice to quit, and is not within the provision of the revised statutes, requiring one month's notice in writing to the tenant. (1 R, S. 745, $ 7.) He is treated as a trespasser. (Livingston v. Tonner, supra.)
Where the person upon whose life any estate in lands or tenements shall depend, remains beyond sea, or absents himself in this state or elsewhere, for soven years together, the statute provides that such person shall be accounted as naturally dead, in any action concerning such lands or tenements in which his death shall come in question, unless sufficient proof be made in such case of the life of such person. (1 R. S. 749, $ 6.) This is a salutary and necessary provision in a country whose population is so ambulatory as ours.
At common law no action of assumpsit for rent would lie, except upon an express promise made at the time of the demise. (Smith v. Stewart, 6 John. 48.) This led to the statute of 11 George 2, ch. 19, $ 14, which was adopted in this state at an early day. (See act of 1788, 1 K. & R. 146, $ 31, and which is incorporated into the revised statutes, 1 R. S. 748, S 26; and as modified by other legislation, 3 R. S. 37, § 20, 5th ed.) The statute applies only to cases where the relation of landlord and tenant had subsisted by some agreement not under seal. If therefore a person enters on land under a contract to purchase, that relation does not exist, and on his refusing to perform the contract he becomes a trespasser, and is liable only in that character. (Smith v. Stewart, supra.) But an action for use and occupation lies, when the holding is upon an implied, as well as when it is upon an express permission of the landlord. (Osgood v. Dewey, 13 John. 240.) If, therefore, the topant after the expiration of a parol demise, and payment of rent under it, continues in possession without any new agreement, he cannot in an action against him for the use and occupation of the premises subsequent to the expiration of the former demise, dispute the title of the landlord, and his subsequent holding will be deemed to have been with the implied permission of the original lessor. (Osgood v. Dewey, supra.) The same consequence follows on holding over after the expiration of a lease under seal, though the lease contains a covenant for a renewal. (Abeel v. Radcliff, 13 John. 297.)
But this action cannot be sustained when the relation of landlord and tenant does not exist between the parties. Nor will it lie against a third person who has come in under a purchase from the supposed tenant. (Bancroft v. Wardwell, 13 John. 489.) Nor will it lie against a tenant against whom summary proceedings have been
forthwith commenced by the landlord, on the expiration of the term, and the tenant has been ejected. Such proceedings are founded upon the allegation of the landlord upon oath that the holding over is without his assent or permission. There cannot be, therefore, in such a case, an express or implied assent to the holding over, or the relation of landlord and tenant. (Featherstonhaugh v. Bradshaw, 1 Wend. 134.)
Nor will it lie where there is an outstanding subsisting lease, unless against an occupier who went in under a new and distinct agreement with the landlord. (Grover v. Wilson, 2 Barb. 264.) Nor will it lie when there has been no occupation of the premises of any description, by or under the defendant, during any part of the term for which they were leased. (Wood v. Wilcox, 1 Denio, 37.)
As the action for use and occupation is founded on contract, express or implied, and lies only where the relation of landlord and tenant exists, it cannot be maintained when the tenant has not entered into the possession at all, under the lease or agreement, either in person or by an under tenant or agent. And it seems it can only be sustained for the time the tenant actually occupied the premises, either by himself or by his subtenant or agent. (Croswell v. Craine, 7 Barb. 191.) But if the contract remains in force, the landlord may recover thereon though the tenant has deserted the premises. (Westlake v. De Graw, 25 Wend. 669.) This principle is questioned by Beardsley, J. in Cleves v. Willoughby, (7 Hill, 88,) who seems to think that under the statute a recovery can only be had for an actual occupancy.
OF ESTATES UPON CONDITION.
A condition is some quality annexed to real estate, (of which we are treating,) by virtue of which it may be created, enlarged, or defeated, upon an uncertain event. (1 Inst. 201 a.)
It may be created by express words, which is called a condition in deed; or it may arise by implication of law, which is called a condition in law.
A condition in deed is most properly created by the very word condition, but it may be accomplished by other words. The conveyancer, intending to create an estate in the grantee, subject to a condition, should insert appropriate words in the grant. In JackSON V. Allen, (3 Cowen, 220,) an alley was granted to the defendant in fee, reserving an annual rent forever to the grantor and his heirs and assigns, excepting a right of way over the alley, and the estate was declared to be upon this express condition, that the grantee, his heirs, &c. shall and do at all times forever hereafter, permit and suf--,, fer the grantor, his heirs, &c. to have, use and enjoy the right of way, &c. This was held to be sufficient to make the estate granted a conditional estate, without any clause of re-entry, and to entitle the grantor to bring ejectment in case the alley was obstructed. The word “proviso” is also said to be sufficient to create a condition in deed. But the word must not depend upon another sentence, and must be the words of the grantor, and be compulsory to enforce the bargainer, &c. to do an act. (Ld. Cromwell's case, 2 Coke, 70, 71.) Conditions are frequently annexed to the grant of an estate in order to insure the payment of a sum of money at a future day. Estates by way of mortgage owe their origin to this principle.
An estate upon condition implied in law, is where the condition results from the nature and constitution of the grant, without being expressed in words. The most frequent cases of implied conditions arise in the grant by government of franchises to a corporation. It is now well settled that it is a tacit condition of a grant of incorporation, that the grantees shall act up to the end or design for which they were incorporated. (A. & A. on Corp. 742. The People v. Utica Ins. Co. 15 John. 382, per Thompson, Ch. J. The New York Fireman's Ins. Co. v. Ely, 2 Cowen, 709, per Savage, Ch. J. The People v. Manhattan Co. 9 Wend. 384, per Sutherland, J.)
The mere omission by a corporation to exercise its powers does not of itself, disconnected from any acts, work a forfeiture of its charter. There must be something wrong, arising from willful abuse, or improper neglect; something more than accidental negligence, excess of power, or mistake in the mode of exercising an acknowledged power. (The People v. The Kingston &c. Turnpike Co. 23 Wend. 103. Same v. Hillsdale and Chatham T. R. Id. 254.)
Nor does the failure of the corporation to perform the implied condition of its existence produce a dissolution, or a destruction of its corporate existence. To work out that consequence there must be the judgment of the appropriate tribunal in a regular judicial proceeding in which the people are a party. (Id. 257.) A forfeit