The lessor of the plaintiff claimed title to the premises in dispute, under the will of Thomas Carson, who devised the same to her for life, and after her death to his three daughters with one of whom the defendant intermarried.
It was proved on the part of the defendant, that at the instance and request of the lessor of the plaintiff, he procured partition to be made of the lands so devised, paid his portion of the costs and went into possession of the premises with the consent of the lessor of the plaintiff, who promised to make him a conveyance of her interest therein at any time, reserving to herself the right to get firewood and wood for family use. The defendant cleared a part of the land and made valuable improvements thereon.
A notice dated 25 September, 1830, to quit the premises on the first day of January next, ensuing, was served on the defendant a few days after it bore date. The (221) declaration in Ejectment was served on the defendant 18 April, 1831, in which the demise was laid on 1 January, 1831.
Upon these facts the Court below being of opinion that sufficient legal notice had not been given, directed judgment of nonsuit, from which the plaintiff appealed. The position seems to be correct, that the defendant was not tenant from year to year, and therefore was not entitled to notice to quit, in the sense of determining thereby his estate. For he did not enter claiming an estate in himself, or legal interest in the land, and was not liable for rent, either in a sum agreed on, or by way of use and occupation. His possession was merely by the license of the owner for an indeterminate period; which seems to be the only remnant of the old strict common law tenancy at will, which now exists.
In such cases, the possession is lawful, and may be continued until one party or the other determines the will: the lessor by demanding the possession, or the occupier by some act wrongful to the owner, which turns him into a trespasser. Before that, ejectment cannot be maintained; for that action assumes, that the possession of the defendant at the time of bringing it, and at any time after the demise laid in the declaration, is wrongful. Hence in Right v. Read (13 East., 210), it was held that after the defendant had been put into possession under a treaty for a purchase by the lessor of the plaintiff, he could not maintain *Page 182 this action until the defendant was made a wrong-doer, either by a refusal to deliver the possession or some other tort. (222) Hence the notice given in this case was necessary, or some other. The question remains, whether this action is consistent with that notice, so as to be sustainable upon it. The notice is to quit on 1 January, 1831; and the declaration was served in April, 1831, upon a demise laid on the first of January. It has been in some cases argued, that service of the declaration of itself determined the will, and that the common rule subsequently entered into, includes an admission of the entry of the lessor to make the demise, which is sufficient. If this be true in any case, it can be only where the demise is laid on the day of the service; for it must go on the idea that the entry to serve the declaration, determined the permissive occupation, and that then the demise was made, and the ouster subsequently; which the occupier is not bound to defend, and therefore defends at his peril. But if the demise be laid as of a prior day, then it is before any supposable entry of the lessor, because the defendant's possession on that day was legalized and as a fiction, a lease, apparently illegal, cannot be admitted. Hence it is laid down generally, that in all cases of permissive occupations the demise must be laid after the determination of the license. Birch v.Wright, 1 Term, 383; Adams on Eject., 191. This is not merely technical, because the action supposes the lessor to have the right to make the demise at the time it is laid, and that the defendant had then no right to possess, and hence, it is conclusive of the lessor's title from that day, in the action for mesne profits. In Dem. v. Rawlins (10 East., 261), no demand of possession was shown, except the service of the declaration, which it was insisted, was sufficient. But the contrary was held, upon the ground that the demise was laid on the preceding 1st of January, and the Court asks from what time before the service of the declaration was the defendant a trespasser?
In the case before us, the question is not upon the effect of another notice to quit before January, if one had been given; nor upon the effect of the declaration, if it had been (223) served on the first of January; but whether upon the notice given, the lessor of the plaintiff can be supposed to have made the demise on that day. He cannot, because it was not against his will that the defendant should possess to the end of that day, and therefore, until its expiration, the lessor cannot be presumed to have entered, as the demise assumes he did. Until the end of the day, the defendant had not resused [refused] to deliver the possession as demanded, and consequently *Page 183 was not a trespasser at the time of the demise Upon this ground, the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Love v. Edmondston, 23 N.C. 153; Humphries v. Humphries,25 N.C. 363; Butner v. Chaffin, 61 N.C. 498; Guess v. McAuley,Ib., 516; Jones v. Boyd, 80 N.C. 263; Allen v. Taylor,96 N.C. 39.