Bennock v. Whipple , 12 Me. 346 ( 1835 )

Weston C. J.

The demandant has made out a title to the premises demanded, and judgment is to be rendered in his favor, unless the testimony rejected ought to have been received, and would, in connection with the other facts proved, have sustained the defence. The bond given by the demandant to Abraham Read, conditioned to convey the premises to Mercy, his wife, and which has been assigned to the tenant, was given nearly two years after the date of the deed from Joseph II. and Abraham Read to the demandant. That bond was altogether matter of contract, and passed no interest in the land. The demandant did not thereafterwards by our law, hold the land conveyed in fee and in mortgage. To produce this effect, the bond relied upon by way of defeasance, must have borne even date with the conveyance to the demandant, and both must have been parts of one transaction. Hale v. Jewell & al. 7 Greenl. 435. French v. Sturdivant, 8 Greenl. 246. Nor can parol testimony be received to vary the effect of these instruments. Testimony of the same kind was rejected in the case first cited. The testimony offered, that the demandant agreed that Read should retain possession of the land, if he continued to pay at the times specified, may be regarded as equally objectionable, as it had the effect to interpose a new condition, not to be found in the bond. But if it were admissible, not being in writing, it could give to Read no higher interest than a mere tenancy at will, and if such an interest is assignable, which may be questioned, no higher interest, under that permission, could pass to the tenant. 1 Cruise, 280.

Another ground of defence set up is, the lease from Barker to the tenant, and the renewal of it by the demandant by implication. The lease from Barker expired by its own limitation, on the first day of May, 1834. In the mean time, Barker’s title passed to the demandant. The continued possession by the tenant, after the expiration of the lease, he held as a mere tenant at will, according to the opinion of Wilde J. in Ellis v. Paige & al. 1 Pick. 43 ; but a tenancy at will, with the privilege of holding through the second year, according to the opinion of Putnam J. in a note subjoined to the case of Coffin v. Lunt, 2 Pick. 70. But whether of the one kind or the other, a tenant at will is bound to do nothing inconsistent with his tenure; and if he does, his tenancy is determined. Campbell v. Procter, 6 Greenl. 12. On the thirty-first of March, 1834, the tenant took a deed from Abraham Read and wife, conveying to him the demanded premises in fee. Now if Read was before tenant at will to the demandant, and if such an interest was assignable by a proper instrument,- an attempt to convey in fee would determine the tenancy held by Read, and constitute a disseizin of the lessor, at his election. So the continued holding by the tenant, after his lease from Barker had expired, must be presumed to have been under his dead from Read; for he caused that deed to be recorded, does by his plea claim to be tenant of the freehold, and offered the deed at the trial as evidence of title. This, certainly, is a course of proceeding, entirely inconsistent with his duty as tenant at will.

We have thus taken a view of the defence upon its merits, aside from any objection, arising from the pleadings. By the plea, the tenant in effect admits that he is tenant of the freehold ; but denies that he has disseised the demandant. The question at issue then is, whether the demandant has a right to be seised of the freehold, which has been very clearly established. If the tenant would have resisted the action, on account of any right to the occupancy or possession, he should formally have set up that interest by an appropriate plea, or as the law now stands, in a brief statement, which is essential, wherever a special plea was before necessary. This the tenant has not done; and we are clearly of opinion, that the testimony rejected had no tendency to maintain the issue on his part.

Judgment on the verdict.