.dissented, I cannot yield my assent to -the opinion of the court. The .plaintiff ougbLeither to have been non-, suited, for the want of notice to-quit, or, ;a,t all ¡events,-the point should haye been submitted to the jury, to decide whether, from the facts, the' defendant was not in possession as a tenant to the lessor of the plaintiff. (10 East, 261.) •
The defendant, in 1802, conveyed the premises to PI. Garrison, who, in 1SÍ2, conveyed to Phillips. The defendant retains cd the possession .from the time he so conveyed until the trial. Thesé facts- are conclusive,' in my judgment, to show, that the defendant’s possession was not, and could not be, adverse; to Garrison, but that he occupied by his implied permission and consent. Could not Garrison recover against the -defendant, for , use’and occupation,, under the 31st; section -of the act concerning distresses,.&c. ? (1 R. L. 444.) I think it does not admit of doubt that he could.
Since the statute, an express as well as an implied agreement,. on, the one side, to let, anden the Other, to take and hold, will support ¡an action for use and occupation. In the present case;, the defendant conveys the ^premises to Garrison, and retains possession ; most manifestly, it must be wifb Garrison’s -consent j ’ *111and, if so, the law confers the right of demanding rent. The ■alienation by Garrison to Phillips, did not change the relation in which the defendant stood; Phillips succeeded to Garrison’s rights and' situation. (1 Term R. 387. 1 Johns. Rep. 332., Jackson v. Bryan.)
It follows that, if Garrison could not maintain an ejectment without notice to quit, his grantee could not.
I shall not travel through all the cases upon the subject of notices to quit; it is no w the settled law, both in the English courts and in this court, that wherever the relation of landlord and tenant exists, or whenever it can be shown that the defendant entered lawfully into possession, and by the permission of the owner, and has done no act hostile to him, he cannot be treated as a trespasser, and subjected to an action of ejectment, without notice to quit, or a demand of the possession. (13 East, 210. 9 Johns. Rep. 330. 269. 10 Johns. Rep. 335. 7 Term R. 83.)
- It is unnecessary, in this case, to go. further than' tO' say the defendant was in possession, with the implied consent of Garrison. It would not be difficult to maintain, that he was in as tenant from year to year, and was entitled to six months’ notice to quit.
There is nothing unreasonable in the doctrine of notice to ■quit. The rights of the landlord are not in the least impaired by requiring it, whilst tenants are not to be treated as trespassers, and subjected to costs, without any fault on their part.
Motion denied.