delivered the opinion of the court.
The plaintiff sued for a year’s rent of three hundred dollars upon an implied new leasing by the defendant for another year, as a tenant holding over after the expiration of his written lease, which expired on the 20th day of August, 1862. The answer denied any holding over or any new leasing for another year, and alleged for a further defence, that on the 14th day of January, 1862, the military authorities of the Government took possession and control of the leased premises, and held the same for the uses of a hospital until the 15th day of December, 1862, when the possession was turned over to Robidoux & Beauvais, lessees in the same lease of other parts of the same premises, held severally by the terms of the lease : that the defendant left the premises ready for the lessor to take possession of them, but that he was not in the State, and had no agent authorized to take possession for him; that the military officers were ready and willing to pay for the occupancy thereof, and.that since they took possession in January, 1862, he had had no control over the premises.
The evidence tended to support the answer. And it further appeared that the military officers paid the rent of the whole premises to Robidoux & Beauvais on oxxe voxxcher, and that the defendant had received his portion of it fx’om them until the expiration of his lease, the Government continuing to occupy as before, after that time. It appeai'ed that an agent of the plaintiff attended to his business generally in his absence; that the defendant had paid his part of the rent due the lessor up to the 20th of August, 1862, when his lease expired, and refused to pay aftex’wax’ds; that the agent did not object to the occupancy of the militax'y authorities, and when the defendant refused to pay, he called on Maj. Chew, quartermastex’, for the rent, but failed to get it from the Govex-nment for the reason that they settled with Robidoux & Beaxxvais, and would, not make but one voucher in the matter, and did not know him in the business. It was *179in evidence, also, that the military authorities took possession of such property as they needed for their purposes, whether the owners consented or not.
The plaintiff moved the court to instruct the jury to the effect, that if the same parties, tenants of the defendant, paying rent to him, occupied, after as before the expiration of the lease, for two months without any new contract with the plaintiff, they would find for the plaintiff the year’s rent with interest, and the court refused. The court then gave four instructions for the defendant, to which the plaintiff excepted, and thereupon took a non-suit with leave, and the case comes up by writ of error.
The case is attended with some difficulties, owing to the peculiar circumstances. A lease for a term of years, expires by effluxion of time at the last moment of the last day of the term. The lessor knows this as well as the lessee, and no notice is required to apprise him that the leased premises wjll be vacated on that day; and if the lessee quit possession, the lessor has nothing to do but enter and take possession. Even when there is a tenancy by the year under a lease which gives the tenant power to determine it on giving notice, and he gives the notice and quits possession, no action can be sustained against him for use and occupation afterwards. (Archb. Land. & Ten., 147.) But if there be an actual holding over, there, is no question but a new leasing for another year, if rent be paid and accepted, or a tenancy at will, if not, at the same rent, will be implied; but such holding over is a' matter of fact to be proved by other evidence than the lease. (Tay. Land. & Ten., § 58.) And when there is no payment and acceptance of rent after the expiration o£ the term, if the tenant hold over but for a short period, without any act to make him a trespasser, he is not at liberty to deny that he is at least a tenant at will or by sufferance. {Id., § 22.) When the lease expires, the tenant ought peaceably and quietly to vacate and surrender the premises; and if he has underlet the possession to another, he must get him out, otherwise he is not in a position to give *180up to tlie landlord that full possession to which he is entitled. But even if he do not remove the under-tenant, he is not thereby rendered liable for another whole year’s rent, nor is a tenancy from year to year created, but only a tenancy at will, and he will be liable only for the period of the actual "holding over. (Tay. Land. & Ten., § 524.) The holding over may be by an under-tenant, but then there must be some privity of contract between the lessee and such person that will make him an under-tenant in order that it shall become a holding over by the lessee. •
It is said that an action for use and occupation can be maintained against the tenant even for the time his under-tenant may have holden over against his consent (Archb. Land. & Ten., 147) ; but this supposes that there is some privity of contract between them which makes the one the under-tenant of the other. Here the military authorities took possession of these premises withoxit any contract with the lessee and against his consent. They paid the whole rent to Robidoux & Beauvais on one voucher, and the defendant merely received his portion of it from them until his lease expired. He then vacated the premises as far as it was in his power to do it, and ceased any longer to receive any part of the rent collected by them from the Government. Such receipt of rent may be considered as a recognition to some extent of the actual occupation of the military authorities as tenants at will or by sufferance; but that circumstance alone can hardly be sufficient evidence of a holding, over for another year, or any such tenancy by contract, as would make them his. under-tenant.
If the military authorities held over without his consent, they also came in against his consent, and without any contract with him. He suffered them to remain without any attempt at eviction, but continued to pay his rent to his lessor as he was bound to do, notwithstanding such eviction by a stranger, until the expiration of his lease, in the same manner as if his possession had not been interfered with. They were intruders upon him, and he left them intruders upon *181the landlord. If they failed to pay rent for the use and occupation, to the satisfaction of the owner, he could recover the possession on a landlord’s warrant without any inquiry whether they came in as under-tenants, or as mere trespassers (Willi v. Peters, 11 Mo. 395; Shepherd v. Martin, 31 Mo. 492), unless prevented by the action of the military authority for which this defendant was not responsible.
After the expiration of the leas'e, the military authorities paid the whole rent, it seems, to Robidoux & Beauvais, as before ; and it does not appear wliy the plaintiff’s agent did not call on them as the defendant had done during his term. But he called upon the quartermaster, who refused to pay him, because he knew only Robidoux & Beauvais in the matter, and would make but one voucher. This shows, at least, that he was willing to recognize the occupancy of the military officers, and to accept rent from them, rather as tenants of his own than as intruders.
We think the facts' proved did not warrant the conclusion that a tenancy from year to year, or holding over for another year by the defendant, had arisen, or could' be legally implied, and that he was clearly not liable for a whole year’s rent; nor are we satisfied that the military authorities had become the under-tenants of the defendant in such a way as to make him responsible as upon a holding over, even as a tenant at will, for the period of the actual occupation. The relation of landlord and tenant will not be inferred, if the position of the parties can be referred to any other distinct cause. (Tay. Land. & Ten., § 25.) And the whole difficulty here is rather to be attributed to the action of the military officers, than to any holding' over or any default on the part of the defendant.
For these reasons we are of opinion that the instruction refused for the plaintiff was correctly refused, and that even the second was erroneously given. And taking the instructions given for the defendant in connection with the evidence on which they were predicated, though the second one be *182liable to objections as being rather too broad, on the whole, we see no good cause for reversing the judgment.
The other judges concurring,the judgment will be affirmed.