trine proclaimed, but in the disposition of the question before the court. It had been uniformly held that neither the mortgagor in possession nor his tenant, under a lease made subsequent to the mortgage, was entitled to a notice to quit as a step preliminary to an action of ejectment.

Keech v. Hall, Doug. 21; Doe v. Giles, 5 Bingh. 421.

That departure from the rule of the common law was evidently induced by a strong impression on the minds of the judges, that it was dealing harshly with a mortgagor in possession to subject him to an action of ejectment in behalf of the mortgagee without any preliminary warning or notice. Their personal ideas of what the law should be were stronger than their respect for the law as it was, and they frankly substituted the one for the other, as the rule for their judicial action. There was one thing to commend it, it favored a more liberal policy towards mortgagors in possession, as against their mortgagees. A few years later, the legislature more effectually extended that policy by providing that the mortgagee should not have ejectment at all, as one of the remedies for the recovery of the possession of the mortgaged premises.-(2 R. S. 312, § 57.) The change of the common law rule, which was thus projected by the court to mitigate supposed hardships of a particular case, was arrested; and the common law doctrine of a six months' notice to quit has never since been expanded and applied in the broad manner declared in the opinion, from which the foreging quotation upon the subject is made.

the

FOURTH: When the tenancy is held for an uncertain time, under either an express or an implied contract, and rent has been paid, or might be recovered, the estate becomes a tenaney from year to year, for the purpose of a notice to quit, and the notice must be the six months's notice of the common

law.

2 Cruise Dig. 261; Jackson v. Bradt, 2 Caines, 174; Post v. Post, 14 Barb. 255 to 258, and the authorities there cited; 4 Kent's Com. 113, 114; Wright v. Mosher, 16 How. Pr. Rep. 458, 459; Jackson v. Salmon, 4 Wen. 327; Taylor's Lan. and Ten. §§ 56, 61.

It is true that Chancellor Kent, after stating the rule as here stated, added rather qualifiedly, that "if the party came into possession with the consent of the owner, and for an indefinite period, he is entitled to notice to quit." And he cites several cases as authority for that assertion of the rule; but the cases cited do not sustain such a doctrine.

The case of Jackson v. Bryan, 1 John. 322, as we have here shown, held that there must be an express or an implied reservation of rent to require a notice to quit, and the case was made to turn on the assumption that the tenant was liable in an action for rent. The court declared that "the landlord's right to sue for use and occupation is equivalent to an express reservation of rent."

The case of Jackson v. Wheeler, 6 John. 272, was a similar case, and was decided on the authority of Jackson v. Bryan.

Philips v. Covert 7 John. 1, merely held a tenant at will liable in an action for voluntary waste. In an elaborate note to that case, the authorities upon this subject are generally reviewed; and the conclusion of the annotator is unqualifiedly expressed, that the receipt of rent, or the right to recover rent, of a tenant at will, is the distinguishing feature between the tenancies of that character which require a notice to quit and those which do not.

Another case cited was Brady v. Covel, 4 Cow. 349, which was an action of assumpsit for use and occupation of a house and lot. The defence was, that by express agreement the defendant was to hold free from rent, except a small sum due as ground rent to a third party. There was no limitation as to the time of holding. The answer to that was, that the tenancy, as first constituted, had been terminated by a notice to quit, and the plaintiff sought to recover rent only for the holding over after the expiration of the time fixed by the notice. The court held that the plaintiff could recover for the holding over, but, by reason of another rule of law, only for the small sum of the ground rent, as provided in the first agreement. The other rule of law referred to was stated by the court as follows: "The notice to quit terminated the tenancy

at will, and converted it into a tenancy from year to year. The implication arises of a tacit consent on both sides that the tenant shall hold from year to year at the former rent." And the reporter has shown in a note to Jackson v. Wheeler that the rule there adopted was directly at variance with the principle of the English decisions on the subject of notice. He evidently assumed that the case disregarded the distinction which rests upon the liability to rent.

If the rule was to be adopted that every party who comes into possession with the consent of the owner for an indefinite period, was entitled to notice to quit as a tenant from year to year, there would be no tenancies at will. That class of estates would be entirely expunged by such a rule, for it not only seems to be well settled that the six months' notice does not belong to tenancies at will, but it would be entirely inconsistent with such an estate to require such a notice. All the authorities agree that to bring a tenancy at will within the reach of the notice, it must be changed to a tenancy from year to year. It was a change long since made by the courts, in obedience to the demands for greater security to tenants at will. Chancellor Kent characterizes the change that was thus made as “a species of judicial legislation, tempering the strict letter of the law by the spirit of equity."

4 Kent's Com. 115.

Calling a tenancy at will a tenancy from year to year, for the purpose of changing the rights of the parties to correspond, was equivalent to a decree changing the law to that effect. It was first applying a new name, and then administering the law as though the name was a true one. A tenant at will is in possession under a very different contract from that under which a tenant from year to year holds. It was well remarked in Park v. Castle, 19 How. Pr. Rep. 30, that the distinction between a tenancy at will and one from year to year, is as well defined as that between one for life and

เ

one for years. year to year.' The assertion that there is such a tenancy as one 'at will from year to year,' is a solecism." But however

There is no such estate as one at will from

anomalous and solecistic may have been the rule of law which makes a tenant at will a tenant from year to year, for the purpose of a notice to quit,.it has been too long established to be questioned. We have assumed to criticise its origin and peculiarities only that the rule itself might be the better understood.

3. Tenancies from year to year can be determined only by a notice to the tenant by the landlord, to remove from the premises, or by the tenant to the landlord that he intends to remove, or by a surrender in a legal manner.

Doe v. Ridout, 5 Taun. R. 518; Pugsley v. Aiken, 11 N. Y. 496; 1 Wash. on Real Prop. 382; 1 Cruise Dig. 160.

Such tenancies are determinable at the option of either party, to be indicated by giving the regular notice.

Doe v. Brown, 8 East. 165; Jackson v. Salmon, 4 Wen. 327.

The notice to quit must be for a half year ending at the expiration of the year. If it end at any other time, or if it fall short of the half year, it does not determine the tenancy. Right v. Darby, 1 Term R. 159; Doe v. Donovan, 2 Campb. 78;

Leighton v. Theed, 1 Ld. Raym. 707; 1 Wash. on Real Prop. 382.

The time can be fixed by the parties differently from the time allowed by the law. Where it was expressly provided in the lease, that the tenant should always be subject to quit at three months' notice, it was held to constitute a quarterly tenancy, which might be terminated by a three months' notice to quit, expiring on the same day of the year it commenced, or on any corresponding quarter day. It was so held, notwithstanding the tenant entered about the middle of one of the usual quarters.

Kemp v. Derrett, 3 Campb. 510; Doe v. Porter, 3 Term. R. 13. If the tenancy be from month to month, the same principle requires a month's notice. There must then be a notice to quit of one month, ending at the close of the month.

Anderson v. Prindle, 23 Wend. 616; Doe v. Hazell, 1 Esp. Rep. 94; Taylor's Lan. and Tenant, § 475.

Or, if the tenancy be for a week, or any other period, the

notice must correspond with the period named. Notice to a weekly tenant to quit at the end of his tenancy next after one week from the date of the notice, was held good.--(Doe v. Scott, 6 Bing. 169.) The notice may be to quit on a particular day named, which must be the day after the last day of the term, or it may be to quit at the end of the current period of the tenancy.

Currier v. Barker, 2 Gray, 224; Prescott v. Elm, 7 Cush. 346;

Baker v. Adams, 5 id. 99; Ooakes v. Monroe, 8 id. 282; Prindle v. Anderson, 19 Wend. 391; S. C. 23 id. 616.

A notice, in form as follows, was adjudged to be good: Take notice, that I hereby require you to quit and deliver up to me the possession of the house and premises you hold of me (describing the premises), at the end and expiration of the current year, of your tenancy thereof, which shall expire next after the end of one half year from the date hereof. Doe v. Butler, 2 Esp. 589; Taylor's Lan. and Ten. § 477.

The notice must be served between the immediate parties to the lease, as they exist at the time of the service. When a tenant from year to year has underlet from year to year, the first lessor cannot end the second tenancy by serving a notice to quit on the second lessee, because there is no privity, that is, no contract between them. (Pleasant v. Benson, 14 East. 234.) The notice should be by the first lessor to his lessee, or by the second lessor to his lessee. Nor can the interest of the second lessee be determined by the surrender of his lessor to the first lessor.

1 Platt on Leases, 103, 104.

The reason of this rule is found in the fact that the notice to quit is a thing which is required only from a landlord to his immediate tenant. To entitle a party to notice to quit,

he must be the tenant of some particular estate, and the notice must come from the immediate reversioner of that estate. It was decided in Jackson v. Sample, 1 John. Cases, 231, that a person in possession as a servant or bailiff, was not entitled to notice.

And in Jackson v. Stackhouse, 1 Cow. 122, one who had