
    Pugsley against Aikin and another, executors.
    Where premises are leased “ for the term of one year and an indefinite period thereafter,” atan annual rent which the lessee agrees to pay, and he enters and occupies several years, he is the owner of an estate as tenant from year to year, arising out of the original demise.
    On the death of the tenant this estate passes to his personal representatives, and they hold it by virtue of the demise to him. And where the executors of the tenant omitted to terminate the tenancy and continued to occupy the premises from year to year; Held, that they were liable in their representative capacity for the rent accruing during such occupancy by them; and that a demand for this rent was properly united with a demand for rent accruing during the lifetime of the tenant, in a suit against the executors.
    Demurrer to complaint. The action was brought against the defendants as executors of William Aikin, deceased. The complaint alleged that on the first of April, 1838, Gerard Morris and Henry Morris were owners, as tenants in common with others, of a farm, said Gerard and Henry each being the owner of one-twentieth of the premises ; that on the day last named, William Aikin hired and rented the farm of the owners “ for the term of one year and an indefinite period thereafter,” at an annual rent of four hundred dollars, and agreed to pay said Gerard and Henry, respectively, twenty dollars per year, as rent for their respective shares in the premises ; and that, by virtue bf this agreement, William Aikin took possession of and occupied the farm as tenant from year to year, until his death in April, 1841. That on the death of William Aikin, the defendants were appointed executors of his will, and as such executors took possession of and occupied and enjoyed the farm and the shares of said Gerard and Henry as like tenants from year to year, at the rent aforesaid, until May, 1850. That neither the testator in his lifetime, or the defendants as his executors, had given notice terminating the tenancy, and that the rent from and including that for the year ending the first of April, 1840, was unpaid. The complaint alleged further, that the said Gerard and Henry had sold and transferred to the plaintiff the rent so due and owing to them respectively, and their claim to the same, and demanded judgment for $40 and interest from the first day of April, 1840, and a like sum with interest thereon for each succeeding year, to and including the year ending on the first day of April, 1850.
    The defendants demurred to the complaint, assigning as grounds of demurrer, 1. That distinct causes of action have been improperly joined in the said complaint; inasmuch as the alleged cause of action for rent, claimed to have accrued on a contract made by the said William Aikin in his lifetime, is improperly joined with a claim for rent, claimed to have accrued upon a contract with the said defendants since his death; 2. That the facts set forth in the said complaint constitute no cause of action against the defendants.
    The cause was heard at a special term of the supreme court held by Justice Pratt, and judgment ordered in favor of the plaintiff. This judgment was reversed by the supreme court sitting in the third district at a general term, and judgment ordered in favor of the defendants on the demurrer. {See 14 Barb. 114.) The plaintiff appealed to this court.
    
      Wm. Barnes, for the appellant.
    
      John H. Reynolds, for the respondents.
   Gardiner, Ch. J.

I do not perceive that distinct causes of action are united in this complaint, as the defendants have alleged, and the supreme court have determined. The tenancy created by the original contract between the defendant’s testator and those represented by the plaintiff was to continue until the parties to it, one or both, elected to terminate the demise, by giving the half year’s notice prescribed by law. If, after the close of the first year, the lessee rightfully remained in possession, it was not by virtue of a new demise, but by force of the old one. That he continued, under a contract for the possession of some kind, must be and is admitted ; otherwise, the occupation would be tortious, and the tenant holding over could, have been ousted at any time at the election of the landlord. No such right upon the part of the lessor is pretended. The supposition of a new agreement, made at the commencement of the second year, for a continuance of the tenancy, is not only untrue in fact, but in this case conflicts with the allegations of the complaint which are admitted by the demurrer. The plaintiff there avers “ that the testator hired and rented the farm for the term of one year, and an indefinite period thereafter.” There was therefore but one contract, and we are not at liberty to suppose another. For although the law will sometimes tolerate a fiction, it is always in aid of, and never to the prejudice of the right of a party. In Legg v. Strudwick, (2 Salk. 414,) it was adjudged in reference to a lease of this description, “ that it was a lease for a year certain, and that every year after, it was a springing interest arising upon the first contract, and parcel of it; and that the lessor might avow as for rent due upon an entire lease, and not for a several rent, due upon several leases, accounting each year a new lease.” In a note in Bacon’s Abridgment, (Lease, L. p. 626,) it is said, “ that notwithstanding the puzzle in the books respecting these running leases, the law is now considered settled agreeably to the case of Legg v. Strudwick. They are leases for one, two and more years certain, according to the form of the lease,, depending for their further continuance upon the will of the parties. And that such will be their will, the law presumes, unless the contrary be evidenced by a regular half year’s notice, that the tenant continuing in possession is not a tenant at will, but a tenant for years.”

The doctrine of these authorities, when analyzed, amounts to this; that when a tenancy from year to year is created by the agreement of the parties, it continues until terminated by a legal notice. The estate does not depend upon a continuance of possession; for the tenant cannot put an end to the tenancy, or his liability for rent, by withdrawing from the occupancy of the premises. The notice is a condition of the contract, in the language of these authorities, Rising out of it, which must be complied with, in order to absolve him from farther responsibility.

If this view is correct, there is no misjoinder of distinct causes of action in the case before us. The testator had manifested his election, that the lease should not terminate during the year succeeding his death; and was, as we have seen, liable for the rent of the year 1842. After his decease, in April, his executors, as such, entered into possession. They were under no obligation to put an end to an interest which the decedent had deemed beneficial, and which they as his representatives thought advantageous to his estate. They would have violated a plain duty, as trustees of the property, by relinquishing by their own act a valuable lease, without any equivalent. They therefore continued, as the representatives of the testator, to occupy the lands during the period in which the rent accrued for which this action is brought. This is distinctly averred in the complaint. And having as trustees and executors rightfully received the profits of the demised premises, they are liable in that character to the payment of the rent.

The second cause of demurrer, viz., that the complaint did not state a cause of action, is consequently untenable. The current year, according to the terms of the lease stated in the complaint, would expire on the first of April. To terminate the tenancy the lessee must have given, six months previously, notice of his intention to do so, or the lease would continue another year. The testator died in the month of April, 1841, without having given any notice whatever, and of course his liability for the rent of that year had its inception, in any view of the case, in the lifetime of the lessee, and when that time expired, became a debt properly chargeable against his estate. The supreme court accordingly placed their decision upon the first cause of demurrer, which is obviously the only one deserving consideration.

The judgment of the supreme court at general term must be reversed, and that of the special term affirmed.

W. F. Allen, J.

The demise to the defendant’s testator, as set out in the complaint, is for one year from the first day of April, 1848, and an indefinite period thereafter, with an averment of the occupation of the demised premises by the testator during his life, and by the defendants as executors from that time up to the first day of May, 1850. Under this allegation, the interest of the lessee at the time of his death was that of a tenant from year to year, and the estate could not be determined except by a notice of six months, terminating with the year, from one of the parties to the other, of an intention to determine the same. As often as the half year’s previous notice was omitted to be given, the term became an assured term for a new year from the expiration of the current year. (Burton on Real Property, 277.) Had the lessee lived and continued to enjoy the premises under this demise, the several years of his occupation would have been treated as an entire term under one lease, and not as a holding under several annual lettings. (Bac. Abr. Lease, L. 3; Birch v. Wright, 1 T. R. 380.) Such is the legal effect of the contract set out, to wit, that the lessee should occupy the premises at a given annual rent until one or the other party should, by the prescribed notice, terminate the contract and put an end to the term. (Doe v. Porter, 3 T. R. 13.) The whole occupancy was but one term and under one lease.

The estate of the lessee was an estate for years and a chattel real, which went to and vested in his executors as a part of his personal estate. (1 R. S. 722, §§ 1, 5; 2 id, 82, § 6; Burton on Real Property, 277.) The executors became seised of the same estate and interest in the lands which their testator had, and no other. Ho change was wrought in the estate or the term by the death of the testator, and the casting of it upon the executors. The precise interest in the lands demised, which the testator had at the time of his death, became assets in the hands of his executors, and they held it as executors and not in their own right, and it came to them charged with the same burthen with which it was charged in the hands of the testator, and that burthen, which was the rent reserved, was chargeable upon the estate of the deceased, and not upon the executors in their own right. Coming to the enjoyment of the premises in their representative character, they could not legally divest themselves of that character and retain the possession for their own benefit. A renewal of the lease, had such a thing taken place, from year to year by contract, express or implied, would have enured to the benefit of the estate upon the familiar principle which forbids a person assuming to act as trustee to act in the same matter for his own benefit. In the case at bar, the averment, which is admitted to be true, is, that the defendants as executors took possession of and used, occupied, enjoyed and sub-let the said farm, &c. It is not denied that if the occupation was in pursuance of and under the contract made by the testator, the estate is chargeable with the rent, and the action is properly brought against the executors to charge them de bonis testatoris; and the case made by the complaint is of a hiring by the testator, until such time as one or the other party to the contract should by notice terminate the same, and which has never been terminated. It follows from this statement, in connection with the admitted occupancy by the defendants as executors, that the estate is properly chargeable upon the contract of hiring by the deceased. In Mackay v. Mackreth, (4 Douglas, 213,) where A. made a lease to B., his executors, &c., for one year, and so from year to year so long as it should please the said A. and B., his executors, &c., it was held that the term did not expire with the death of B., but vested in his executors. It is true Lord Mansfield rests his decision upon the words of the demise as alleged, and says, If it had been a lease from year to year, it would have expired at the end of the year after the death of the tenant, without notice, but the present demise continues till the executor determines it by notice.” But so far as the terms of the demise go, they are not essentially different from the case before us, and the decision would be an authority in favor of the plaintiff. But the subsequent cases tend very clearly to show that the legal effect of a lease from year to year is the same a3 that given to the demise referred to. In Doe v. Porter, (3 T. R. 13,) it was- decided that in the case of a tenancy from year to year as long as both parties please, if the tenant die intestate, the administrator has the same interest in the land which his intestate had,- and the lessee of such an administrator may declare in ejectment on a term for seven years. Lord Kenyon says, 11 As between the original parties, as long as both of them lived, he (the lessee) could not have been dispossessed without six months’ notice,- ending at the expiration of the year. But it is argued that though this was the interest which Wm. Shore had, a different interest devolved on his personal representatives, On this question I do not know how to state a doubt, for this was a chattel interest from year to year, as long as both parties pleased; and it seems clear to me that whatever chattel the intestate had must vest in his administrator as his legal representative.” The same principle was recognized and acted upon in James v. Dean, (11 Vesey, 383; S. C. 15 id. 236,) in which it was held that where a term expired in the lifetime of the testator, who continued to hold and paid half a year’s rent before his death as tenant by the year, a renewed lease obtained by the executors was subject to the uses of the will. Chief Justice Tindal in Atkins v. Humphry, (2 M., G. & Scott, 658,) says; “ I can readily understand that if the testator originally entered under a demise, and the executors do not give up the premises, . the assets of their testator may be made chargeable during such term as they virtually retain them in their possession.”

The executors could have terminated the lease and relieved the estate represented by them from the charge of the rent, at the expiration of any year,, by giving the required notice; but not having done so, the estate is liable upon the contract of the testator and upon the occupation of the executors, who took the term as representatives, and not as assignees. In this view there is no objection to the complaint for a misjoinder of causes of action.

The judgment of the supreme court at general term must be reversed; and that of the special term affirmed with costs.

All the judges concurred except Ruggles, J., who did not hear the argument, and Parker, J., who dissented.

Judgment accordingly.  