#### SARAH HEAD v. WILLIAM HEAD.

A devise to the testator’s wife during her life, and then as follows: “ It is my wish, my son W. should live with his mother, and after her death, then the part of my land above described, to belong to my son W. and his heirs for ever,” was Held not to convey any present estate in the land to W.

Where one occupied land and claimed the right to do so during such occupan* pancy, and when the possession was demanded, set up claim to the premises, it was Held that he could not be permitted to insist on the privileges of a tenant from year to year.

ActioN of bjeCTMent, tried before Osboene, J., at the last Spring Term of Alexander Superior Court.

The lessor of the plaintiff claimed title to the land in controversy, under the will of her husband, James Head, of which the following is the only clause material to be recited: “ I will that my beloved wife, Sally, shall have the part of the land on which I live, being the part that formerly belonged to Arnold Bruce, and which I’purchased from John Bowles, during her natural life or widowhood. It is my wish and will, that my son, William, should live with his mother, and after her death or marriage, then the part.of the land above described, to belong to my son William and his heirs forever.”

The defendant was living in the dwelling-house with his mother at his father’s death, and continued so to reside after that event. After this, he married and built him a dwelling on a part of the land described in the above recited clause, and had resided there a year or lhore before this suit was brought. A demand was made of the defendant for the possession of the premises two months before action brought, to which he replied, that “ he had lived there, and intended to live there as long as he pleased; and that he had a right to be there.”

The defendant proved that after this suit was brought, he delivered plaintiff some corn, and that, at one time, before the commencement of the suit,' he and his wife were seen *621husking corn in the yard of the plaintiff’s lessor, and from this evidence, he contended that he was a tenant from year to year, and entitled to six months notice to quit, and requested the Court so to instruct the jury. Iiis Honor declined giving the instruction asked, but told the jury, that if they believed this evidence, the plaintiff was entitled to their verdict. The defendant’s counsel excepted.

Yerdict for plaintiff. Judgment and appeal by defendant.

No counsel appeared for the plaintiff in this Court.

M. L. MoGorMe and W. P. Oalclwell, for the defendant.

PbaesoN, C. J.

Under the will of his father no legal right to the land is given to the defendant, and we feel at liberty to say no right in rem is given, either at Law or in Equity. So the defendant has no ground to stand on and must, appeal to his mother’s sense of justice in regard to the imperfect right growing out of the will, in which the testator expresses a wish that his “ son, William, should live with his mother.” Which expression implies much, taking into consideration the connection of the parties, but does not confer any right which can be enforced in a court of law, or which authorises the defendant to refuse to give up possession of the part of the land for which he is sued.

The ground taken by the counsel of the defendant, that he had become a tenant “ from year to to year,” and was entitled to six months notice to quit, before he could be sued in ejectment, cannot avail him, because he disavowed the relation of “ landlord and tenant,” not only at the time when he built the house and set up exclusive claim to the part he was cultivating, but also at the time of the demand, and one is not allowed to blow hot a/nd cold in the same breath; i. e., if he disallows the relation, he cannot afterwards claim the privileges of a tenant.

The evidence in respect to some corn, which the defendant delivered to the plaintiff’s lessor, (on what account does not appear,) and that he and his wife husked some, was not so *622'connected with the relation of the parties as to be entitled to any weight. There is no error.

Pee CueiaM,

Judgment affirmed.