I do not think the evidence in this case shows such a forfeiture of the lease as allows the plaintiff to recover the premises in this action. The remedy by ejectment to enforce the payment of rent is never allowed except where a right of reëntry for non-payment of rent is expressly stipulated for between the parties. (Van Rensselaer v. Jewett, 2 Comst., 141; 5Denio, 121; 9 Watts, 258; 11 John., 162; Bacon's Abr.,tit. Rent, K, 4.) The refusal to pay rent therefore worked no forfeiture of the lease, as the lease in question gives no right of reëntry for the non-payment of rent. The next and more important question in this case is whether the defendant forfeited this lease and *Page 26 terminated his tenancy by a parol denial of his tenancy and disclaimer of the plaintiff's title, and claiming to own the premises himself.
Upon a careful examination of the authorities I am satisfied he did not. It must be admitted, however, that there are somedicta in the books which at first view seem to favor a forfeiture upon such evidence. Upon a careful examination of the cases, however, it will be found that they are cases of a tenancy at will or sufferance, or from year to year, which lasts only as long as the parties please, and where what is called a disclaimer is evidence of the cessation of the will; or where in such cases it has been held that such a disclaimer furnishes evidence in answer to the disclaiming party's assertion that he has had no notice to quit, inasmuch as it would be idle to prove such notice where a tenant has asserted that there is no longer any tenancy. But I have not been able to find any case where the judgment of the court has proceeded upon the distinct ground that a parol denial of the landlord's title worked a forfeiture of a term for years.
Mere words of denial or disclaimer never worked a forfeiture either under the feudal law, or the more enlightened common law of England.
The rule of forfeiture in such cases is laid down in Bacon, Comyn and Cruise, in the following terms: "This doctrine of forfeiture is founded on a rule of the feudal law, that if the vassal denied the tenure he forfeited his feud. This denial may be where he claims the reversion himself, or accepts a gift of it from a stranger, or acknowledges it to be in a stranger, for in all these cases he denies that he holds the feud from the lord; but as by the feudal law the vassal was to be convicted of this denial, so in the English common law, those acts which plainly amount to a denial must be done in a court of record to make them a forfeiture, because such act of denial appearing on the record is equivalent to a conviction upon solemn trial. All other denials *Page 27 that might be used by great lords for trepanning their tenants, and for a pretence to seize their estates, were by our law rejected, for such convictions might be obtained without any just cause, but the denial of the tenure upon record could never be counterfeited or abused to any injustice." (1 Cruise, 125;Bacon's Abr., title Estate for Life and Occupancy, letter C,vol. 3, p. 466, Bouv. ed.; Comyn's Dig., tit. Forfeiture, A (5), note a, vol. 4, p. 397.) The same doctrine is affirmed by the Queen's Bench in the recent case of Graves Downe v.Wells Trowbridge (10 Adol. Ellis, 427), where it was expressly held that such a parol denial and disclaimer did not work a forfeiture. (See Bacon's Abr., tit. Leases and Terms forYears, letter T, 2, vol. 5, p. 668, Bouv. ed.)
The same rule obtains with us. (Jackson ex dem. Livingston v.Kisselbrack, 10 John., 336; 7 John., 186; 16 John., 302; 11 Wend., 616; 15 Wend., 400.) This must be so under our statute, which enacts that no estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall be hereafter created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing. (2 R.S., 134, § 6.) The cases of Van Schaick v. Vincent (4 Wend., 633) and Van Rensselaer v. Collins (11 John., 1), which are understood to contain some dicta holding a contrary doctrine, do not determine anything hostile to the views which we have above expressed, and they are satisfactorily disposed of by the court below.
If we are right in the views above expressed, then this action cannot be maintained: first, for the reason that the lease does not provide for a forfeiture for the non-payment of rent, and secondly, because these parol declarations *Page 28 of denial and disclaimer do not work a forfeiture thereof.
The judgment of the court should be affirmed.
MORSE, J., did not hear the argument.
All the other judges concurring,
Judgment affirmed