Blair v. Mason , 64 N.H. 487 ( 1887 )

Allen, J.

It is found by the case that the tenancy was one at will from month to month, that the rent was payable on the 22d day of each month, and that February 22, 1885, all rent due was paid, and the plaintiff owed the defendant $14.42, which the plaintiff had agreed to pay in money. This sum the defendant then undertook to apply in payment of his use and occupation of the premises in advance, and the court found that he had a legal right to do so. If this finding means that the defendant might, without the agreement or consent of the plaintiff, extend the tenancy to a time when the accrued rent should be equal to his claim against the plaintiff, and so fix the time at which notice to quit might be given, it was a finding that one party might, on his own motion, change the existing contract of tenancy, and make a new one for the purpose of collecting what was due from the other party. The plaintiff might have consented or agreed that the defendant should have the use of the premises until April ■ 15, the time when the accrued rent would have been equal in amount to the sum he owed the plaintiff, and that no notice should be given to quit at an earlier day. Such an agreement would have been a waiver of the right to give the statutory notice of thirty days for terminating the tenancy, and, no rent being due and no other fault being shown, would have been binding on the plaintiff, and a notice to quit at an earlier day than that agreed upon would not have had the effect to terminate the tenancy nor entitled the plaintiff to a judgment for possession.

But it does not appear that the plaintiff consented to the application of his debt due the defendant, and which he had promised to pay in money to the payment of rent in advance, nor to the extension of the tenancy for a corresponding time, nor to limit the right of giving notice to quit according to the statutory time. And the defendant, by the mere application or attempted application of the sum due from the plaintiff to the payment of rent in advance, could not thereby extend the tenancy and claim the right of use and occupation beyond the period originally agreed upon, nor change the effect of the statutory notice to quit, any more than any contract creditor could, for the purpose of collecting his debt, without process seize and hold the debtor’s property casually and without pledge in the creditor’s possession.

Undoubtedly at the end of a month from the last settlement, or at any time when rent became due, the defendant could apply the plaintiff’s debt to him in payment of such accrued rent, but he could not, without the consent or agreement of the plaintiff, create a new tenancy, nor make the existing one different from that agreed upon in the original contract, nor change the time within which notice to quit might be given by statute.

It was agreed that the defendant should have such notice to quit as would afford him ample opportunity to find another dwelling, and it does not appear that the notice given was too short for that purpose, nor that any question in that regard was made. The tenancy being one at will from month to month, and that not being changed or extended by agreement, and there being no waiver of the statutory time for notice to quit, and no stipulation for a different time or mode of terminating the tenancy, the notice given was sufficient, and the plaintiff is entitled to maintain his action for possession. On the facts reported there must be

Judgment for the plaintiff.

Smith, J., did not sit: the others concurred.