Decided 28 August, 1805.
On the Merits.
Mr. Chief Justice Wolvertondelivered the opinion.
On the 1st of October, 1903, the plaintiff leased to defendants certain premises for the period of one year. The lease contained, among others, the following conditions, namely:
*162“And it is agreed that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to reenter said premises and to remove all persons therefrom; the party of the second part hereby waiving any notice to quit or of intention to reenter under the statute. And the said party of the second party covenants * * that at the expiration of the said term or other determination of this lease the party of the second part will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit.”
The defendants refusing to surrender at the end of their term, the plaintiff instituted this action of forcible entry and detainer. At the trial there was no proof of the giving of any notice to quit on the part of the plaintiff, and the defendants moved for a nonsuit, which being denied, plaintiff had judgment; hence this appeal.
It will be helpful to us if we take a retrospect of the law of tenancies as it pertains to the necessity of demand and notice for their termination. At common law a tenancy at sufferance was created when a person came into possession of land lawfully and held over wrongfully after his estate had ended. • The tenancy was of a most shadowy character, and the landlord could reenter and bring ejectment for possession without the necessity of prior demand or notice to quit: 18 Am. & Eng. Enc. Law (2 ed.), 177, 180. A tenancy at will was more stable, and arose where lands or tenements were let to hold at the will of either party to the letting, by force of which the lessee was in possession. It was not essential that the contract should be expréss, but sufficient that it was.implied, and therefore an estate by sufferance might be converted into a tenancy by will, if the holding was of sufficient duration as that the assent of the landlord to the holding, which, was at first wrongful, might be presumed. Thus a tenant *163holding over after the expiration of a term might become a tenant at will by the implied assent of the owner: 18 Am. & Eng. Enc. Law (2 ed.), 182, 183. This estate was determinable'by á demand for. possession, such as indicated the landlord’s intention that the tenancy should cease. Nor need the demand to have been express, but it might have been signified by acts tantamount thereto: 18 Am. & Eng. Enc. Law (2 ed.), 186, 187. Periodical tenancies, or, as they are commonly known, ‘'tenancies from year to year,” grew at an early date by judicial construction out of the old tenancies at will. These latter were attended with many inconveniences, to obviate which the courts raised an implied lease for a certain period, and ingrafted upon it a rule of law that the tenancy could not be terminated, even at the end of the period, without previous notice. Such tenancy could arise by express contract, while, upon the other hand, it might have arisen by implication, as, where a tenant held over after the expiration of a lease with the consent of the landlord and continued to pay a periodical rental, the law raised another term equivalent to the period of payment: 18 Am. & Eng. Enc. Law (2 ed.), 191, 192,197. These tenancies were determinable by notice, the length of time of which to be given was according to whether the tenancy was strictly from year to year or less, as from quarter to quarter, or month to month, and the like. If from year to year, six months was required; if for a less term, shorter notice was sufficient; and such is the common law in force in the United States. This notice should expire on the terminal day: 18 Am. & Eng. Enc. Law (2 ed.), 202-204. The right to determine the tenancy by notice was an inseparable incident of the holding, and was exercisable by either the landlord or the tenant, being for the mutual benefit of both : Wood, Land. & Ten. p. 64, § 22. But the parties to such a tenancy could alter the notice neces*164sary to determine it, and could agree to a notice of less duration or period (18 Am. & Eng. Enc. Law, 2d ed., 205; Wood, Land. & Ten. § 33); or they might have waived it entirely by a writing under their hands: Wood, Land. & Ten. § 40; Gear, Land. & Ten. § 191; Williams v. Potter, 2 Barb. 316; Vegely v. Robinson, 20 Mo. App. 199; Stedman v. McIntosh, 26 N. C. 291, (42 Am. Dec. 122). A tenancy for years need not be defined. It is sufficient for our purpose that such a tenancy was determinable by the mere expiration of the period for which the lands were demised, and neither demand nor notice was necessary or requisite to enable the landlord to reenter or maintain ejectment for possession: Smith v. Reeder, 21 Or. 541 (28 Pac. 890, 15 L. R. A. 172). Such a tenancy, however, was susceptible of being converted into a tenancy at will or a periodical tenancy,and when so changed it could only be terminated as other tenancies of the kind.
3. Cursorily, such was the law when the statutes began their innovations, and in most jurisdictions there exist regulations respecting the length of time notice is required to be given to terminate periodical tenancies. Our statute requires three months’ notice in writing for the termination of estates at will or sufferance; but, when the rent reserved in the lease is payable at periods of less than three months, the time of such notice is sufficient if it be equal to the interval between the times of payment. In cases of neglect and refusal to pay the rent when due, 14 days’ notice only is sufficient for the purpose: B. & C. Comp. § 5390. By another section, when, in the case of a lease of real property and the failure of the tenant to pay rent, the landlord has a subsisting right to reenter for such failure, he may bring an action to recover possession, the action being equivalent to a demand for payment and a reentry : B. & C. Comp. § 338. These provisions by general statute. The forcible entry and detainer act pro*165vides that the following shall be deemed cases of unlawful holding by force, namely:
“1. When the tenant or person in possession of any premises shall fail or refuse to pay any rent due on the lease or agreement under which he holds, or deliver up the possession of said premises for ten days after demand made in writing for such possession.
2. When, after a notice to quit as provided in this chapter, any person shall continue in the possession of any premises at the expiration of the time limited in the lease or agreement under which such person holds, or contrary to any condition or covenant thereof, or without any written lease or agreement therefor”: B. & C. Comp. § 5755.
The notice specified in the latter subdivision must be in writing and served upon the tenant for a period of 10 days before the commencement of the action, unless the leasing or occupation is for the purpose of farming or agriculture, in which case the service must be for 90 days: B. & C. Comp. §§ 5756, 5757. It is manifestly the purpose of these statutes to change the time of notice requisite to entitle the landlord to reenter, as it relates to the several kinds of tenancies known to the common law, and in addition thereto to provide appropriate remedies for reentry in these and other cases. It is difficult in practice to determine the true intendment-and legal effect of section 5755. Indeed, Chief Justice Thayer has said, and not inappropriately, that “the forcible entry and detainer act adopted in 1866 seems to have been thrust into the statute without regard to its harmony or fitness with the other provisions”: Rosenblat v. Perkins, 18 Or. 156, 160 (22 Pac. 598, 6 L. R. A. 257). The act of 1866 (see Laws 1866, p. 33,) is revisory of the forcible entry and detainer act as it existed in territorial days, although it was preceded in 1864 by another act intended for the same purpose: Gen. Laws 1845-64, p. 743. Under the territorial law a person was authorized to recover the possession of the premises when *166any rent shall have become due on any lease or agreement, and the tenant or person in possession shall have neglected or refused for 10 days after demand of the possession made in writing to deliver the possession or pay the rent so due: Laws 1854-55, p. 317, § 160, subd. 2. Subdivision 1 of the section under consideration was designed' no doubt, as a revision of this provision; but the latter clause thereof is meaningless unless read in connection with the first, so as to make the 10 days’ demand for possession necessary after the failure to pay the rent, and hence that the action could not be maintained until both the failure to pay rent and the demand for possession were made. We are inclined to think that such is the proper rendering of this subdivision, and the landlord could not have a cause of action for forcible entry and detainer under this subdivision until both these prerequisites have been observed. This, however, by way of discussion, that we may be better understood upon the question at issue, not that we intend an authoritative interpretation of such first subdivision now.
The real question involved here is whether the notice referred to in the second subdivision is intended as a notice for terminating the tenancy, or as a necessary step in the procedure for reentry by forcible entry and detainer action. If the former, it is susceptible of waiver by the tenant, as such a notice was so at common law ; but, if the 'latter, it is a matter with which the parties can have nothing to do, and the landlord must give the notice before he can maintain his action. The relief by forcible entry and detainer is unquestionably designed as a summary proceeding to give speedy and prompt relief, and the action is essentially civil in character although the form of the verdict of the jury would seem to indicate otherwise. A service of summons is required for a period of not less than two nor more than four days before the day appointed *167for trial, thus reducing the time of service as compared with other actions of which the justice is given jurisdiction : B. & C. Comp. § 5749. Section 5755 is designed to give the action for a constructive forcible detainer. The action for a forcible entry and detainer, wherein the force must be actual, is provided for by section 5746: Taylor v. Scott, 10 Or. 483; Harrington v. Watson, 11 Or. 143 (3 Pac. 173, 50 Am. Rep. 465); Smith v. Reeder, 21 Or. 541 (28 Pac. 890, 15 L. R. A. 172); Twiss v. Boehmer, 39 Or. 359 (65 Pac. 18). In the language of Mr. Chief Justice Lord, “that section [5755] creates a species of constructive force, where none in fact exists. A tenant, notified to quit, who refuses to surrender possession of the premises, and is holding over after the expiration of his lease, within the meaning of the statute, is guilty of holding by force, as much so as though he held it with actual force”: Hislop v. Moldenhauer, 21 Or. 208, 210, (27 Pac. 1052). The cases are numerous where, considering the statutes giving the remedy, the notice is deemed and held to be a part of the procedure, and the action cannot be maintained, nor the court acquire jurisdiction in the premises, Until it is given in fact, and it is therefore insusceptible of waiver. Such is the case of Doss v. Craig, 1 Colo. 177, where a demand for possession was required, and it was held that such a demand was absolutely and essentially necessary to a maintenance of the action. In Nebraska it is made the duty of the person desiring to commence the action to notify the adverse party to leave the premises for the possession of which action is about to be brought, which notice shall be served at least three days before the commencement of the action. This notice is held to be jurisdictional. The statute makes it a part of the procedure: Hendrickson v. Beeson, 21 Neb. 61 (31 N. W. 266); Pollock v. Whipple, 33 Neb. 752 (51 N. W. 130). So in Kansas, where it is said : “The statute is mandatory that a party *168desiring to commence an action for forcible entry and detainer must notify the adverse party to leave the premises for the possession of which the action is about to be brought, and that this notice shall be served at least three days before the commencement of the action”: Douglass v. Whitaker, 32 Kan. 381 (4 Pac. 874). See also, Nason v. Best, 17 Kan. 408; Stuller v. Sparks, 51 Kan. 19 (31 Pac. 301). So in Iowa: Grosvenor v. Henry, 27 Iowa, 269. See, also, McDevitt v. Lambert, 80 Ala. 536 (2 South. 438). But, where the notice is not designed as a part of the procedure in the action, it is, on the other hand, susceptible of waiver by the parties: Espan v. Hinchcliffe, 131 Ill. 468 (23 N. E. 592); Eichart v. Bargas, 12 B. Mon. 462; Waggaman v. Bartlett, 2 Mackey, 450.
Turning again to the statute, there is an apparent recognition of the common-law idea that a person might, by holding over a stated term,'■become a tenant from year to year or month to month, as the case may be, by the implied assent of the landlord, and the most natural deduction is that the legislature intended by the notice provided for to forestall the implied assent and thereby terminate the lease absolutely, and when so terminated there would be a wrongful holding by the tenant, because he could not then presume upon the assent of the landlord to his further holding. If the landlord desires a termination absolutely at the date of the expiration of the lease, he might accomplish it by giving the requisite notice preceding that date, of he might terminate it subsequently thereto by the proper notice, providing his preceding acts could not be construed into a letting for the succeeding period. But, if he desired to terminate the lease because of a breach of a condition or covenant, then the notice must follow the breach, of course ; for how could the landlord foretell with certainty that there would be-a breach, so as to conform his notice to the fact? Now, in harmony with the law as *169it stood prior to the statute, a tenant could, if he saw fit, waive the notice to quit and terminate the contractual relations, so as to entitle the landlord to a reentry at once upon the expiration of the term. In the case of Smith v. Reeder, 21 Or. 541 (15 L. R. A. 172, 28 Pac. 890), where a landlord had reentered peaceably upon the day of the expiration of the lease by its own terms, it was held that there was no such a forcible entry and detainer as would give the tenant a remedy under the act. Such a termination would entitle the landlord to his action in ejectment. But the tenant could not be deemed guilty of a forcible detainer, under the statute we are considering, without a notice to quit given in the manner prescribed, because he may hold over, and, if the landlord should assent thereto tacitly or otherwise, a new relation would arise through a periodical tenancy. It is to cut off this condition that the statute requires the notice, and holding against the notice is constructively forcible and gives the action. But why cannot the tenant waive the notice? In Rosenblat v. Perkins, 18 Or. 156 (6 L. R. A. 257, 22 Pac. 598), Mr. Chief Justice Thayer strongly intimates that an action will lie under the forcible entry and detainer act, where notice is given under the general statute for the termination of tenancies by will or sufferance, and hence the deduction is that the notice as required by the act in question is not always essential to characterize a forcible detainer, and that there could be a constructive holding by force without it. These authorities by way of analogy, not that they decide the question squarely.
The idea that the notice provided for was intended as a part of the procedure essential to give the court jurisdiction is inconsistent with the cardinal purpose of the act, namely, that of affording the landlord a summary remedy. It is far from summary to say that the landlord shall make a demand of 10 days, or give a notice of 10 or *17090 days, as the case may be, and then give another notice by summons of from two to four days, before the court can even acquire jurisdiction to act in the premises. But it does afford a summary remedy when we say that the court shall have jurisdiction to pronounce judgment upon a service of a summons from two to four days after the legal termination of the lease or tenancy. As corroborative of this view is the fact that the statute (section 5747) 'prescribes what is necessary to state a cause, namely, after describing the premises, that the defendant is in possession thereof, that he entered with force or unlawfully holds the same with force, as the case may be, and that the plaintiff is entitled to possession, omiting all reference to the notice; whereas, if it had been deemed necessary to give the court jurisdiction, it is natural to suppose that the giving of it would have been required to have been stated, as the court held in Doss v. Craig, 1 Colo. 177, with reference to the demand. Subdivision 1, as we conceive its intendment to be, is also in harmony with this view. When all is considered, the most reasonable construction would seem to be that the notice was intended for the absolute termination of contractual relations, not as an essential part of the procedure for forcible entry and de-tainer. The procedure must be distinguished or held distinct from the manner of terminating such relations, from which time the tenant will be deemed to be holding wrongfully. The statutory notice for terminating these relations may be waived, the same as the common-law notice could have been, and, when waived by the tenant, he wi]i be deemed as much guilty of a wrong by holding thereafter as if the notice was given. This construction of the statute, while not entirely satisfactory, is promotive of the intendment that the proceeding should be summary, and is in harmony with the practice generally pursued in drawing leases with reference to the statute.
*171We are constrained, therefore, to affirm the judgment of the circuit court, and such will be the order here.
Affirmed.