Longfellow v. Longfellow , 61 Me. 590 ( 1870 )

Appleton, C. J.

On the first day of April, 1846, the demand-ants leased the land in controversy to the tenant for a term of ten years. That term expired. The tenant remained in the occupancy of the premises as tenant át will and was held liable for the rent of the same in Longfellow v. Longfellow, 54 Maine, 240.

Upon the ninth day of May, 1864, the tenant gave the demand-ants notice that at the expiration of thirty days from date he would surrender the possession of the premises to the demandants, and that he claimed title to the same.

On the day designated for the surrender, the agent of the de-mandants met the tenant within twenty rods of the premises in dispute and, as he says, offered to accept a surrender of the same. The tenant’s version of what took place is somewhat different. He says the demand was for rent which he refused to pay, but that he told the agent he might take the property.

It appears that the goods of the tenant or of his son were in the store on the premises; that the store was locked; that no possession was taken, though the agent came for that purpose; that no surrender was made, and that the tenant has occupied or rented the premises ever since, claiming title thereto.

The tenant has expressly denied the title of his landlord, and given full notice of his adverse claim. The demandants’ agent when he comes to take possession, finds the store locked. The owner of the fee may elect to regard himself disseized, in some cases, for the sake of the remedy. Stearns v. Godfrey, 16 Maine, 158; Jackson v. Vincent, 4 Wend. 633.

The demandants have brought their writ of entry. The tenant has pleaded mil disseisin. By the plea the tenant admits he is in possession, claiming a freehold and is thereby estopped from proving that he is tenant at will of the demandants. Melcher v. Flanders, 40 N. H. 139; Williams v. Noiseux, 43 N. H. 388.

The tenant, not having surrendered the premises and not having been evicted by paramount title, is estopped to deny the title of his landlords. Longfellow v. Longfellow, 54 Maine, 240 ; Towne v. Butterfield, 97 Mass. 105.

Tenant defaulted. The rents and profits to he assessed hy the judge at nisi prius.

Cutting, Keijt, Walton, and Bamiows, JJ., concurred.