The opinion of the court, was delivered by
Hornblower, C. J.,There was no relation of landlord and tenant, subsisting between the lessor of the plaintiff and the defendants, or either of them; not even by construction, so as to entitle them to a notice to quit.
The question presented by the facts in this case, and which was overlooked both by the court and counsel, at the Circuit, is not, whether the defendants were entitled to a notice to quit, as in the case of actual or constructive tenancy from year to year; but whether the plaintiff could institute an action of ejectment, . without previously making a demand of possession.
The defendant Myers, entered by the permission of the lessor of the plaintiff, and in pursuance of an agreement made between them for the sale of the premises to Myers. The possession of the latter, and his subsequent lease of a part of the lands to Westbrook the other defendant, was entirely consistent with his right of possession. Under such circumstances the vender cannot oust the defendants or either of them without a previous-demand of the possession. The service of a declaration in ejectment, is not equivalent to such a demand; for such a service proceeds upon the ground, that the tenant is a wrongdoer ; and if he suffers judgment by default to pass against the casual ejector, he may be sued for the mesne profits.” Right ex dem. Lewis v. Beard, 13 East, 211. Doe, dem. Newby v. Jackson, 1 Barn and Cress. 448. The law of Landl. and ten. by Comyn, 291. 2 Law Lib. 163. Kirtland v. Pounsett, 2 Taunt. 145. I am therefore of opinion, that the verdict ought to be set aside and a non-suit entered.
Plaintiff 'nonsuit.
Cmsr in Van Valkenberg v. Rahway Bank, 3 Zab. 588.