Per Curiam.
We cannot distinguish this case from that of Jackson, ex dem. Livingston, v. Bryan. (1 Johns. Rep. 322.) The disclaimer of the present defendant dispensed with the necessity of notice to quit, but it was after the date of the demise. At the date of the- demise, the tenant in possession was not a trespasser, for there was then no determination of the estate, by notice to quit, or otherwise. His sale in fee to the defendant was subsequent. We are of opinion, therefore, that the plaintiff was properly nonsuited, for want of showing a complete right to the possession prior to the day of the demise.
Page 274
That was essential. (Goodtitle v. Herbert, 4 Term Rep. 680.) The motion to set aside the nonsuit must be denied.
Motion denied.