Holliday v. Aehle

Barclay, J.

The case requires us to determine the effect of a purchase at execution sale of the tenant’s interest under a statutory tenancy from month to month (R. S. 1889, sec. 6371) when the landlord resists such transfer to the purchaser.

That an interest in land created by mere possession may, generally speaking, form the subject of a recovery in ejectment, will be assumed. But in applying' that rale to a case like this, regard must be had to the terms of positive law regulating assignments of such an interest in possession as is here involved.

By our statute it is declared that “no tenant for a term not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or interest, or any part thereof, to another, without the written assent of the landlord.” R. S. 1889, sec. 6368.

In this case the interest in dispute is a tenancy from month to month, and therefore included within the statute as a tenancy “for a term not exceeding two years.”

To sanction a transfer, by means of legal process, of the tenant’s interest in such an estate, without assent of the landlord, would be to afford an easy mode of evading the plain meaning of the law.

Had the landlord assented to the transfer, the case would be different. But he has not done so. He may, therefore, lawfully insist on holding the original tenant to the terms of the existing tenancy as defined by the statute governing it (R. S. 1889, sec. 6371). An execution purchaser from the tenant cannot deprive him of this right.

The instruction given by the -court at plaintiff’s instance is not in accord with these views.

It is therefore necessary to reverse the judgment and remand the cause which is accordingly done.

Be ace, J., concurs in this opinion. Ray, C. J., and Sherwood, J., concur in reversing the judgment and remanding the cause. Black, J., dissents.