
    
      Executors of Rene Godard and others vs. The South Carolina Rail Road Company.
    
    In order to put an end to a tenancy from year to year, there must be three months notice to quit, ending at the expiration of the year.
    The Acts of 1808 and 1817, have not altered the common law in relation to tenancies from year to year, and the necessity of notice to quit, before the tenancy can be determined, either by the landlord or the tenant.
    
      Before Evans, J. at Charleston, Fall Term, 1845.
    The report of his Honor is as follows:
    “ The defendants occupied a house belonging to the plaintiffs’ testator and others, at the annual rent of $450. The lease commenced on the 1st of May. At the expiration of the first year, the defendants continued to hold, and for several years paid the accruing rent, from time to time, at the same rates. On the 31st of March, only one month before the expiration of the lease, the plaintiffs, with a view to increase the rent to $550, gave notice to quit at the end of the year, unless the rent was increased to the said sum. The defendants continued to hold, contending they were not bound to quit, but that they were tenants from year to year, and entitled to three months notice before the end of the year. They have paid the rent at the old rate, but the plaintiffs claim $25 per quarter, additional rent; and they have brought this action to recover $50 for two quarters’ additional rent. It seemed to me, without any particular examination of the subject, that the landlord could terminate the lease, which I regarded as a lease at will, at the end of any quarter, by giving three months notice, which, it was agreed, was the notice usually given in Charleston. In this view, the notice was not good for the 1st of May, but was so for the 1st of August. I therefore decreed one quarter’s rent, from the 1st of August to the 1st of November, for the plaintiffs.
    “ On subsequent reflection, I incline to the opinion that my decree was wrong. Instead of being tenants at will, the defendants were tenants from year to year, and entitled to three months notice before the end of the year, without which they could hold for the nest year.’’
    The plaintiffs appealed, on the ground that, under the Act of 1817, the lease of the defendants determined absolutely at the end of the year — to wit: on the 1st May, 1845, and that three months notice was not necessary, as his Honor supposed ; and therefore, that the plaintiffs were entitled to the increased rent for both the quarters sued for, and the decree should have been for the whole amount claimed, to wit: fifty dollars,
    The defendants also appealed, on the ground that the three months notice which his Honor held to be necessary, must be given three months before the expiration of the year ; and as such notice was not given in this cáse before the 1st of May, when the year terminated, the defendants were entitled to hold for the succeeding year at the old rent; and that rent having been paid, the decree should have been for the defendants.
    Bailey, for the plaintiffs,
    contended, 1st. That the rule of the common law, requiring notice to quit, was unreasonable, and therefore ought not to be adopted in South Carolina . 4 Kent, 110. 2d. That defendants were not tenants from year to year, but tenants at sufferance ; Co. Litt. 57 b ; 4 Kent, 116 ; 6 Law Lib'. 291; (Comyn on Land, and Tenant) ; 4 Bing. 460; 2 Taunt. 148 ; 2 Camp. 505. 3d. That the 3d section of the Act of 1808, 5 Stat. 565, and the 2d section of the Act of 1817, 6 Stat. 67, had altered the law in relation to giving notice, and rendered it unnecessary ; 2 Hill, 367.
    Mazyck, contra.
   Curia, per Fiiost, J.

Tenancies at will, from which tenancies from year to year are derived, are said to have been originally held at the will of the lessor — but from a very early period it has been the law, that they were held at the concurrent will of both lessor and lessee, for they might be determined at the will of either party. But the tenant could not determine the estate in the middle of a quarter, so as to defeat the lessor of his rent; nor could the lessor evict the tenant at a time when he would be deprived of the fruits of his labor in the preparation of the land and culture of his crop. In Doe vs. Watts, 7 T. R. 81, Lord Kenyon says, “ it was in order to avoid so unjust a measure” by either party, “ that so long ago as the time of the Year Books, it was held that a general occupation was an occupation from year to year, and that the tenant could not be turned out of possession, without reasonable notice to quit.” The course of husbandry must have defined the time of reasonable notice. When common interest had united common consent to the recognition of a definite notice, the courts, in adopting it as a rule, only enforced a law which custom had previously established. Accordingly, for the mutual interest and security of both parties, it has long been settled in -the English courts, that interests in land which anciently were estates at will, should be construed to be tenancies from year to year. In Timmins vs. Rowlinson, 3 Burr. 1609, Wilmot, J. says, “in the country, leases at will, in the strict legal notion of leases at will, being found extremely inconvenient, exist only notionally, and were succeeded by another species of contract which was less inconvenient. At first it was indeed settled to be for a year certain ; and then the landlord might turn the tenant out at the end of the year. It is now established, that if a tenant takes from year to year, either party must give a reasonable notice before the end of the year, though that reasonable notice varies, according to the customs of different counties.” A tenant, then, takes from year to year, when he enters at an annual rent, without any agreement for a year or other specific time ; and either party must give reasonable notice before the end of the year. When there is an agreement for a tenancy for a year, and, by consent of both parties, the tenant continues in possession afterwards, the law implies a tacit renovation of the contract. They are presumed to have renewed the old agreeement, which was to hold for a year. If the time be stipulated, whether for a year or a less period of time, no notice is necessary to determine the tenan- „ cy, because the parties, by the agreement, are apprised of its determination. If the occupation be for a less time than a year, a'shorter notice than in case' of a tenancy from year to year, will be sufficient. The notice is to have relation to the tenancy — so that on taking by the month, a month’s notice to quit may be sufficient. Right vs. Darby, 1 T. R. 162 ; Doe vs. Hazell, 1 Esp. R. 94.

The legislation of our own State seems to be confirmatory of the common law. The Acts of 1808, 5 Stat. 565, and 1812, 5 Stat. 676, which were referred to by the plaintiffs’ counsel, only give landlords remedies against their tenants holding over after “ the legal determination of their estates leaving the question open, when and how they may be determined. The second section of the Act of 1817,- 6 Stat. 67, is declaratory of the common law, when it provides that every lease or written agreement for renting lands, shall end at the period therein stated, “ without it being obligatory on the tenant or the landlord to give the notice now required by law.” The first section of the, Statute of Frauds provides that all leases and terms for years, by parol, shall have the effect of leases at will only. In Clayton vs. Blakey, 8 T. R. 3, it was decided that the statute only operated to make void the term ; and that the agreement operated to create a tenancy from year to year. The third section of the Act of 1817 provides that no parol lease shall give the tenant a right of possession for a longer period than twelve months, and that all such leases shall be construed' to be for one year, unless it be stipulated for a shorter time. The clause is merely prohibitory of parol leases for a longer period than one year; and in avoiding the contract of the parties to the extent it would operate, makes it good for one year. If the Act be substituted for the agreement of the parties, so that such a tenancy is limited to one year, then no notice is necessary at the end of that year. ' But if the tenant, by mutual consent, continues in possession after the year is expired, the statute has left the liabilities and rights of the .parties as they are at common law, under the construction of the Statute of Frauds.

It is indispensable that tenancies should not unexpectedly be determined. The mischief that would follow must be prevented, either by a renewal of the contract at a convenient time before the expiration of the tenancy, or its continuance must be implied, unless either party give notice of discontinuance. To require special agreements to be renewed before the expiration of every short term of tenancy, would be onerous in the extreme, and discourage, if not prevent, the occupation of lands and houses for short periods, which would be a public grievance. Ignorance and remissness would frequently leave one of the parties in the power of the other. The law which implies a tenancy for a definite period, when it has not been agreed on by the parties, and requires notice to dissolve the tenancy, is best suited to the habits of society, and is necessary to prevent surprise and oppression. It is sufficient for every purpose, that such tenancy may be dissolved by the landlord, on his giving notice to his tenant to quit; or by the tenant giving notice to the landlord of his intention to quit. This leaves each party in security, and guards the rights of both. If either party may determine the tenancy at his will, or on a short notice, at any period of the tenancy, the tenant of lands may be deprived of the crop he has planted, and the landlord-may have his land left vacant at a season of the year unsuitable for a crop, and thereby lose the rent of it for a considerable period. The tenant of a dwelling may be left houseless, at the mercy of his landlord, and the latter subjected to an unexpected vacancy of his property, and the loss that would ensue.

Reasonable notice for the determination of a tenancy from year to year, under the English decisions, is six months. In this case, three months is admitted to be the customary notice in Charleston. For tenancies of shorter continuance, which are generally of less valuable tenements, a shorter notice is required. In all, it will be found that the law requires no more than is necessary to enable the tenant to provide another dwelling, and the landlord to procure another tenant, before the tenancy ends, and thereby prevent embarrassment and loss. The same periods of notice apply with equal, if not greater advantage, to tenancies of land.

The difference between the habits and state of society in England and in this State, well warrants the substitution of three for six months notice. A decree was rendered for the plaintiffs for one quarter’s rent. Consistently with the judgment of this court, it cannot be retained. It is therefore ordered, that the plaintiffs be non-suit.

Richardson, Evans, Butler and Wardlaw, JJ. concurred.  