The affidavit of Andrew Simpson, which constituted the foundation of the proceedings for removing the alleged tenant, Mitchell, in this case, was insufficient to give the justice jurisdiction to institute those proceedings.
It has been often decided that, to authorize such proceedings, the conventional relation of landlord and tenant must be shown to exist between the parties, and not a tenancy created by the mere operation of law. (Evertson v. Sutton, 5 Wend. 281; Roach v. Cosine, 9 id. 227; Sims v. Humphrey, 4 Denio, 185;Benjamin v. Benjamin, 1 Seld. 383; Crary's Pr. 452.) I am of opinion that Mitchell, by retaining *Page 59 possession of the leased premises after assigning his whole term therein, became the tenant, or quasi tenant at sufferance, of his assignee, or at least gave to the assignee the right to treat him as such tenant at his election. (Dyer, 62, a; Co. Litt. 57, b; Harg. note 5.) But those facts did not create the conventional relation of landlord and tenant within the meaning of the statute, as interpreted in the decisions above referred to. That relation may have existed between the parties, but it could only arise out of some agreement between them, independent of the assignment of the term, and the retaining of possession by the assignor. If any such agreement, express or implied, existed, the affidavit does not show it. If there was an express agreement it should have been set out; if an implied one, the facts from which the law would imply it should have been stated.
It is stated in the affidavit, after setting out the assignment of the lease, "that dependent [the assignee] thereupon became entitled to the possession of said premises, and the said Mitchell became the tenant of deponent by sufferance." And after mentioning the several transfers of the lease, by which it came ultimately to Isabella Simpson, it is said that, "by reason of such transfers and assignments, said Mirando Mitchell became the tenant at sufferance of said Isabella Simpson," and that he "held and occupied the premises as the tenant at sufferance of said Isabella Simpson, the landlord thereof as aforesaid," from the 16th of October, 1860, until the expiration of the tenancy as thereafter mentioned, (referring to the notice to quit.) All the statements are conclusions of law only, and do not strengthen the claimant's case. The landlord, or his agent, is required by the statute to "make oath in writing to the facts which * * * * authorize the removal of the tenant." (3 R.S. 5th ed. 836, § 29.) Perjury could not be effectually assigned upon these portions of the affidavit, if it should turn out that the relation of landlord and tenant did not exist; neither do they give the tenant an opportunity to deny by affidavit "the *Page 60 facts upon which the summons was issued," which he is authorized to do, and to have the matter tried by a jury. (Id. 837, § 34.) The tenant might not be willing to swear, in his answer, to the law, whatever might be his opinion in regard to it; and he ought not to be required to do so, as the condition of making an issue for trial. The claimant, in all such cases, should state the facts out of which the legal conclusions arise, and not the legal conclusions alone. (Hill v. Stocking, 6 Hill, 314.)
The facts stated in this case were perhaps sufficient to support the conclusion that Mitchell was tenant by sufferance by operation of law, but a tenancy or quasi tenancy thus arising does not make a case within the statute, and if there existed facts creating a different relation, it rested with the claimant to show them.
The fair conclusion from the affidavit, as it appears, is that there were no facts beyond those which are stated, upon which the inference of a tenancy was based. If there were none, then clearly the case was not within the statute.
The judgment of the Supreme Court should be affirmed.
All the other judges concurring,
Judgment affirmed. *Page 61