The declaration is entitled of September Term, 1848, and was served on Long, as the tenant in possession, 24 August of that year. The demise is laid as of 10 February, 1844. At September Term Long applied to be admitted as defendant, offering to give bail and enter into the common rule and plead not guilty. But the counsel for the plaintiff objected to his being allowed to plead, and in support of the objection he filed the affidavit of the lessor of the plaintiff, in which he stated "that in 1839 Joseph Long proposed to rent of him the tract of land which the affiant had bought of John Chesson, and on which the said Long then lived, being the premises described in the declaration; that they agreed upon the (227) sum of $25 per annum, and Long gave his note for the amount, which he paid in 1840; that he continued in possession in 1841, and gave his note for the like amount and continued to occupy it, and gave notes for the rent in 1841 and 1842; and that in August, 1843, affiant gave notice to said Long to quit possession and to stop the tenancy." Thereupon the court ordered that Long should not plead unless he gave a bond with sufficient penalty and sureties, with condition that he would pay the lessor of the plaintiff all such costs and damages as should be recovered in the suit; and, Long declining to give such bond, judgment final was rendered against the casual ejector, and Long appealed. The point is whether this is a case within the act of 1823, Rev. St., ch. 31, sec. 51. It provides that the tenant in possession shall not be entitled to plead unless he give a bond as required in this case, but that there shall be judgment against the casual ejector, if the lessor of the plaintiff shall file an affidavit at the first term that the tenant in possession entered into the premises as his tenant, and that his term therein has expired, and that the tenant refuses to surrender the possession of the premises to the lessor of the plaintiffs, with the privilege to the tenant of offering counter-affidavits.
One question on the act is whether the acceptance of a lease by one already in possession is within it: as if the owner of *Page 168 land sell it, and, without going out of possession, takes a lease from his vendee; or if a tenant under one person takes a new lease from the assignee of the reversion. Literally, the act is confined to the case in which the entry was at first under the lessor of the plaintiff. No doubt, the reason is that each of those persons has a precise knowledge of the contract, thus made by himself personally; so that neither can be under a mistake as to his rights or those of the other party. Therefore, holding over against the demand of the lessor must be in bad faith on the part of the tenant, and he ought not to hinder the landlord's remedy to regain the possession without securing the rent, damages for waste and costs. Though that principle may not, more than the letter of the act, take in the case of an assignment of the reversion, yet when one, though before in as owner or as lessee of another, takes a lease from his alienee or a new lease from the assignee of the reversion, it seems substantially to fall so entirely within the mischief against which the act is directed as to be within its fair construction. For it would be (230) very idle that the tenant should go out for an instant, and then return, for the sake of creating such a tenancy as would, under the act, tend to prevent the tenant from holding over. The Court, therefore, inclines strongly to the opinion that the bond might have been required from Long, notwithstanding he did not go into possession under a lease from Phelps, but only continued in possession under a lease granted by him after he became owner of the land. Yet the points need not be now adjudged, as it is not necessary to the decision of this case, inasmuch as the Court holds the affidavit insufficient by reason of defects in other essential points.
The act does not give this security to a landlord when the tenant merely holds over, but only when he refuses to surrender the premises to the lessor after his term therein expired. The lessor of the plaintiff must, therefore, establish the two further facts, that the term has expired and that still the tenant refuses to deliver up the possession. The affidavit here contains no such statement in either respect. Perhaps it ought to be required to say so in terms. At all events, the statements in it should be such that the court would be obliged to infer those facts by a fair, if not a necessary, construction. For the court ought not to require a bond to secure the rent and damages in any case in which the jury would be unable, upon evidence to the same facts, to give them, according to the subsequent provisions of the act. Those provisions are, that in such cases the jury shall inquire whether the defendant refused to surrender the premises after his term therein had expired, and if they find *Page 169 affirmatively on those points, then they are to assess the damages, including the value of the occupation from the expiration of the term and damages for waste during the holding over; for which there is to be a summary judgment given on the bond. Very clearly, then, those facts ought distinctly and affirmatively to appear on the affidavit. Here they do not; nor can they be reasonably implied. Certainly, holding over (231) merely will not amount to a refusal to surrender the premises, for the assent of the landlord may be presumed, unless the contrary appear. There must be an express refusal, or a demand of possession or something else that will turn the tenant into a trespasser. According to the words of the act, the jury must find that the party "refused to surrender the premisesafter his term expired," which would seem to imply a demand and refusal at the expiration of the term, or so soon afterwards as to rebut an implication of the acquiescence of the landlord. And this must certainly be so when the term is for a definite period, and therefore no notice is necessary to determine the tenancy; for in such a case, if possession be not demanded at the end of the term, or an explicit declaration made before hand to the tenant, that the landlord will require him to go out at the expiration of the term, there will be nothing to give to the holding over the character of a refusal on the part of the tenant to restore the possession, but by such holding over he becomes tenant from year to year. It may be admitted that, if the lease here were definitely for the year 1843, the notice to quit, given in August, might be a sufficient demand of the possession at the end of that year, so as to be evidence that the subsequent holding over amounted to a refusal of the demand. But that is not the nature of the lease, as stated in the affidavit. It is explicit only in setting forth a letting in 1839 at an annual rent of $25; and that under it the defendant occupied until 1843, giving notes in 1839, 1840, 1841 and 1842, respectively, for a year's rent, and subsequently paying them. It does not specify at what period of the year the contract was made, nor any definite term, either as to its beginning or ending. Then, it was plainly a tenancy from year to year; but from what day the year was to be reckoned no one can say upon the face of the affidavit. Now, if it be admitted that in a tenancy from year to year there need be no demand of the possession distinct from (232) the notice to quit — and so we suppose the law to be — yet clearly, we think, that effect can only be allowed to such a notice as is valid and effectual to determine the tenancy. Here the notice was given some time in August, 1843; and it is impossible to say that it was due notice. It has not been directly decided *Page 170 in this State, as far as we are aware, what is the proper notice; and it may be possible that less than the half year, required in England, may be deemed reasonable, or that different periods may be adopted according to the situation of the premises, the interests of agriculture or the seasons at which the terms may expire. The Court gives no opinion on those points, further than to say that it is at least prudent to be on the safe side by giving a half year's notice. But there must, at all events, be some reasonable notice in such cases from the landlord to the tenant, or vice versa, to prevent mutual disappointment and loss. Now, as it does not appear on what day in August, 1843, the notice was given, nor when the current year would be out — that is, at the end of 1843, or at an earlier or later day — it is impossible to determine whether the notice was for half a year or any other period in particular. Consequently, the court could not determine that it was reasonable, so as to put an end to the tenancy or convert the lessee into a trespasser, and make his continuing in possession until 10 February, 1844, evidence of a refusal to surrender the premises after his term had expired. It is to avoid the danger of the court's acting upon vague conjectures on those points that the act requires that the lessor of the plaintiff shall swear distinctly that the term had expired, and that after such expiration the tenant refused to deliver up the possession. Nothing less ought to be deemed sufficient to preclude the person in possession from the common right of defense. The tenant might have held over upon (233) a fair claim of right, on the ground that the notice was not such as made it binding on him to go out; whereas the case within the purview of the act is that of a willful wrong by the tenant in withholding from the landlord his land after a lawful demand of the possession.
It was suggested at the bar that Long could not appeal, as he had not been admitted to defend, and, therefore, was not a party to the record. But the Court holds otherwise. It may be true, if the tenant does not appear and apply to be admitted as defendant, that he cannot bring error or have an appeal, which are rights belonging to parties and privies. But even in that case the tenant's rights are noticed so far that, upon his subsequent application, the judgment against the casual ejector will be set aside for irregularity, and a writ of restitution awarded. But when he appears it is of common right he should be admitted to defend upon the usual terms; and if that be refused to him, undoubtedly it is an error, which he may have corrected by a higher court. So it is here; for, although the statute authorizes the imposition of other terms in certain cases, *Page 171 this is not one of them; and therefore the tenant had a right to be heard before being deprived of his possession, and to be heard upon giving bail and entering into the common rule, according to the course of the court.
The judgment against the casual ejector was, therefore, erroneous, and is reversed; and the case is remitted to the Superior Court to proceed further therein according to law and right.
PER CURIAM. Ordered accordingly.
Cited: Shannonhouse v. Bagley, 48 N.C. 229.
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