#### DEN EX DEM. NATHAN A STEDMAN vs. RODERICK McINTOSH.

Wherever the relation of landlord and tenant exists, without any limitation as to time, such tenancy shall be from year to year, nor shall either party bo liberty to put an end to it unless by a regular notice.

This notico must be given six months before and ending with the period, at which the tenancy commenced.

There are several cases, in which the relation of landlord and tenant may terminate without any notice to quit, as where, by agreement of the parties, notice is waived — or where its determination is made to depend on some particular event, as the death of a particular individual, or fixed by effluxion of time, it being to terminate at a particular period.

Though Courts lean against estates at willyet, estates at will, strictly so speaking, may still be created.

The question, as to notice to quit, depends upon the contract between the parties.

Where A. contracted with B„ that B. should occupy his house and lot at §14 per annum — reut to commence on the 36th of October, 1841, and if B. should desire to remove the house before October, 1842, he was to pay only for the time he occupied the house; Held that this was not a tenancy from year to year, but that it terminated at farthest on the 26th of October, 1842, and that six months’ notice to quit was not necessary.

The case oí Humphries v Humphries, 3 Ired- 362, cited and approved.

Appeal from, the Superior Court of Law of Chatham County at Spring Term, 1844, his Honor Judge Dick presiding.

This was an action of ejectment, commenced on the 19th of November, 1842. On the trial the plaintiff gave in evidence an instrument executed by the lessor of the plaintiff, in these words:

“I have this day agreed with Rhoderick McIntosh to let, him occupy the house now in his occupancy on my lot at the rate of fourteen dollars per annum, rent to commence on the 26th of October 1841, he having settled with me for the rent up to that time. In case Mr. McIntosh should desire to remove the house before October, 1842, he is to pay me only *292for the time he occupies the house while on my lot at the ^bovenamed. I hereby acknowledge I put no claim to the house. All I contend for is the rent for the land. In w^tness whereof I hereunto set my hand and seal, Sept. 9th, 1841.”

The plaintiff then proved, that the defendant was in pos-ession of the premises owned by him and mentioned in the declaration, being the same lot referred to in the said instrument, at the time of serving the declaration, and that, in the month of July, 1842, and before the 20th of that month, the lessor of the plaintiff verbally informed the defendant, that he wished him to leave the premises as soon as he could, and that he must leave at the expiration of his time; to which the defendant replied that he was as anxious to get away as the lessor of the plaintiff was to have him away, and that he would leave as soon as he could. Upon this evidence the defendant’s counsel moved his Honor to non-suit the plaintiff, insisting that the said lease constituted between the parties a tenancy from year to year, and that the plaintiff had not shewn that the said tenancy was by any legal mode terminated at the commencement of the action. The motion was opposed by the counsel for the plaintiff, contending 1st, that the defendant was not a tenant from year to year but a tenant for one year, or for a term ending October, 1842, at which time the tenancy expired, without any act to be done by the plaintiff; 2dly, that, if not such a tenancy for a fixed term, it was a tenancy at will strictly, and the notice served had terminated the tenancy; and 3dly,. that, if a tenancy from year to year, yet the notice given, coupled with the declaration of the defendant, was sufficient to terminate the tenancy, which was at an end before the commencement of this suit.

His Honor declared himself of opinion, that the plaintiff had made out no case, and ought to be called. In submission to this opinion, the plaintiff suffered judgment of non-suit to be entered, and appealed.

*293 Badger for the plaintiff.

J. H. Haughton, for the defendant,

contended that every occuption of the land of another is, in modern times, from considerations of public policy, prima facie deemed a tenancy from year to year. The owner may shew, from the particular terms of the contract, that it was not a tenancy from year to year: if he does not, he must give 6 months’ notice to quit. Humphries v Humphries, 3 Ired. 363. If there be not a stipulation for less than six months’ notice, or that no notice need be given, or if the occupation is referable to a year or any particular part of a year, there must be six months notice. This contract speaks of the rent being per annum. Again, wherever rent is reserved and there isno waiver of notice or other special agreement in relation thereto, the tenancy is considered a holding from year to year. Humphries v Humphries, ut supra. Jackson v Bryan, 1 John. Rep. 326; Spencer’s opinion and Tompkins’ opinion. Jackson v Wilsey, 9 John. Rep. 268 — Philips v Covert, 7 John. Rep. 38 (note a.) As to disclaimer and waiver of notice, 1 John. Rep. 326 ut supra.

Nash, J.

The only question presented in this case is as to the true construction of the contract between the parties. This paper was executed on the 9th of September, 1841, and the action was brought on the 19th of November, 1842, the plaintiff having given the defendant notice to quit in July preceding. On the trial of the cause in the Superior Court of Chatham, it was contended by the defendant, that this was a tenancy from year to year, and that the tenancy could not be put an end to by the lessor, without giving to the tenant six months’ notice to quit; and his Honor, who presided, being of this opinion, the plaintiff submitted to a nonsuit and appealed to this Court. In the opinion of his Honor we think there was error. The true inquiry is, not as to the nature of the estate or interest, which the defendant acquired in the premises, but whether, by the contract, the plaintiff could bring this action without a previous notice to quit. We *294think he could, or, if any notice was necessary, that which was given was sufficient — Anciently, where a man entered into land, with the consent of the owner, and no express tjme wag pixijte(j f01, p.g termination, it was, by the strict letter of the law, a tenancy at will, and either party might put an end to it at his pleasure. This tenancy was fraught with much mischief; and its operation was often oppressive and unjust to the tenant, for he might be turned out of possession before his crop was fit for harvesting, and, though the law gave him the right to enter and carry off his crop when ripe, still it subjected him to great inconvenience. It was also contrary to the policy of the State, which is in nothing more concerned than in protecting and cherishing the proper cultivation of the soil. Courts of justice, therefore, early viewed with strictness- an estate fraught with so much injury to the interests of agriculture. Loud Kenyon, in the .case of Marlin v Walts, 7 Term 79, says, “as long ago as the time of the year books, it was held, that a general occupation was an occupation from year to year, and the tenant could not be turned out without reasonable notice.” It is now considered as settled law, that wherever the relation of landlord and tenant exists, without any limitation as to time, such tenancy shall be from year to year, nor shall either party be at liberty to put an end to it, unless by a regular notice. Legg v Strudwich, 2 Salk. 414—Timmins v Rowlinson, Burr. 1609 — Martin v Walts, 7 Term Rep. 79. And it is also settled, that this notice must be given six months before and ending with the period at-which the tenancy commenced. Doe v Porter, 2 Term R. 3. The Courts, therefore, lean against construing leases to be at will, and in favor of their being from year to year; and so strongly has that disposition heen felt, that it has been decided, in a Court of very high authority, that, at this day, a tenancy at will cannot be created, 7 Johns, Rep. 3. This, however, is carrying the doctrine too far. Both in England and in this State it has been held, and is now settled, that an estate at will, strictly so speaking, can be created, 5 Tyrw. 753, and *295so by express contract between the parties. Richardson v Lavgridge, 4 Taunt. 148—Humphries v Humphries, 3 Ired. 363. In this last case it is ruled, that, though from policy’every occupation of land is, prima facie, deemed a tenancy, from year to year, yet the owner may shew, that it is only a tenancy at will, or any other tenancy, determinable at a particular time or on a particular event, by the express agreement of the parties. In other words, that the contract between the parties must govern and ascertain their respective rights. In this case, the contract sets forth, that the tenancy was to commence on the 26th of October 1841, at the yearly rent of $14 for one year,- and at that rate for any shorter time; it then stipulates, in case Mr. McIntosh shall desire to move the house before October 1842, he is to pay only for the time he occupies the hortse or the lot at the rate of $14 for one year. We think these stipulations clearly fix a terminus for the lease, to wit, the 26th of October 1842. There are several ways, by which the relation of landlord and tenant may terminate, without any notice to quit: as where, by the agreement of the parties, notice is waived, or, when its determination is made to depend upon some particular event, as the death of a particular individual; here the death of the individual is in itself a termination of the lease, and the estate of the lessee ceases. So, where its determin-tiorx is fixed by the effluxion, of time, as where it is to terminate at a particular period. In neither of these eases is any notice to quit necessary, and the lessor, may, upon the expiration of the time specified,- or the happening of the particular event, immediately enter upon the lessee. Cobb v Stokes, 8 East. 358, Messenger v Armstrong, 1 Term Rep. 54. On behalf of the plaintiff it was urged, that this was a tenancy at will, because, by the terms of the contract, the defendant had a right to put an end to it at his pleasure — and that the law gave the lessor of the plaintiff the same right, which he had exercised by giving the defendant two months’ notice to quit. Whether this was a tenancy *296at will, or 0116 whose termination was by the contract fixed determined; we are of opinion it was not a tenancy from year to year, and that, in either case, the opinion of his jjonor was erroneous. The plaintiff was entitled to maintain his action, as he did not commence it before the 26th of October 1842, one year for the commencement of his lease.

Per Curiam, Judgment reversed and venire de novo awarded.