This, from the facts reported, appears to the court to be a very clear case. It is an action of trespass, for breaking and entering the plaintiff’s close, dwelling-house, and slaughter-house, and the defendant pleaded the general issue, and specified as matter of defence, that he owned the dwelling-house and slaughter-house, and had in law and in fact a license to enter upon the close in the manner he did.
But by the report of the case, it appears, that the dwelling-house and slaughter-house were. built by Ezra Cooper and John L. Cooper, the sons of the plaintiff, on the locus in quo, with his assent, he having a lease of the same from Ezra and John for and during his natural life; that John afterwards became insolvent, and all his estate was conveyed by a master in chancery to his assignee; and that the defendant’s *90only title to the dwelling-house and slaughter-house was by a conveyance to him by the assignee of John’s real estate; á title wholly inconsistent with that relied on by the specification ; for by that the defendant undertook to justify the entry under a license from the plaintiff and not by virtue of his title as tenant at will. And this variance between the title specified and that proved, we consider as decisive of the case.
It has, however, been elaborately argued by the defendant’s counsel, that the houses were personal property, and that the sons had a right, as tenants at will, to occupy so much of the close, as was necessary; that this right passed to John’s assignee, and from him to the defendant, and that the plaintiff could not terminate the tenancy at will without a written notice to the defendant of his intention so to do.
But this, ground of defence, if it had been, duly specified, could not be supported upon the facts proved, for several reasons. In the first place, if the houses were personal property, they did not pass to the defendant by the deed to him of John’s real estate; that passed only his title to the reversion in the locus in quo after the expiration of the plaintiff’s life estate, which would not justify the defendant’s entry. In the second place, there is no evidence to prove, that the houses were ever intended to be held as personal property. The sons were owners of the reversion in the land, and the presumption is, that the houses were intended to be held as attached to the real estate. Lastly, if John ever was a tenant at will, that tenancy was terminated on his part, by the conveyance of his real estate by his assignee, and his thereupon moving out of the dwelling-house and ceasing to occupy the slaughter-house ; leaving the same unoccupied, until the plaintiff let the house to one Rose, who entered and took possession; and thus the tenancy at will was terminated by the mutual consent of both parties. If, however, it had not been terminated, it would not have passed to the defendant. The estate of a tenant at will is not assignable, but if the tenant makes an actual grant of his estate, that terminates the tenancy. The doctrine is so laid down by lord Coke, and so unquestionably is the law at the present day. “ If the tenant at will,” says lord Coke, *9111 granteth over his estate to another, and the grantee entereth, he is a disseizor, and the lessor may have an action of trespass against him; for although the grant was void, yet it amounteth to a determination of his will.” Co. Lit. 57.
This case, therefore, is not within the Rev. Sts. c. 60, § 26, which was made to prevent the inconvenience, which might be suffered by one of the parties, by the sudden determination of the tenancy by the other party, without his assent and against his will; it has therefore no application to a case where the tenancy has been terminated, according to the principles of the common law, by the consent of both parties. So it has been lately decided by this court, in the case of Creech v. Crockett., 5 Cush. 133. If, however, the tenancy at will had not been terminated, the statute would not apply, for the estate of the tenant at will never passed to the defendant, and he never was tenant at will. It is therefore very clear, that in no view of this case, can the defence be supported.
Exceptions overruled.