
    
      John S. Fowke vs. E. J. Beck.
    
    A went into possession of land under a conditional agreement to purchase, and executed his notes for the purchase money, the first due and payable on or before the first day of January subsequent to the date of the contract; the second on or before the first of January thereafter; and it was stipulated between the parties, that in case of failure to make payment in twenty days after the money became due, the land, with all its improvements, was to revert back to the vendor, his heirs and assigns; but if payment was made, then warrantee titles were to be made to die purchaser. A continued in possession, cultivating and improving the land, until September after the first note became due, on which suit had been brought, without any intimation that his occupancy was contrary to the will of the vendor. It was held by the court, that he was to be regarded as tenant for the year.
    
      Before Butler, J., at Barnwell, Spring Term, 1843.
    Trespass to try title — writ entered 12tli September, 1842. The defendant was in possession of the land, under the following agreement to purchase from the plaintiff, viz:
    
      South Carolina, Barnwell District.
    
    This is to certify that I have this day made a conditional sale of my Stinson Bridge tract of land, to Elijah J. Beck, son of Charles Beck, sen., for the sum of five hundred dollars. The conditions are as follows: the said Beck is to pay the said Fowke the sum of one hundred dollars on or before the first day of January next, and the balance, of four hundred dollars, on or before the first day of January following; to secure which payment, he, the said Beck, gives his notes to that amount to the said Fowke. And should there be any failure on the part of Beck, to make payment in twenty days after the money becomes due, then, and in that case, the land, with all its improvements, is to revert back to the said John S. Fowke, his heirs and assigns; but should there be no failure as regards payment, then the said Fowke is to give the said Beck warrantee titles for the same. And be it further understood, that Mrs. Sarah Hulett is to remain in peace and quiet where she now resides, so long as she thinks proper, with all the privileges hitherto enjoyed by her.
    (Signed,) JOHN S. FOWKE.
    December 15th, 1841. E. J. BECK.
    Five notes of the defendant, to the plaintiff, or bearer, edch for one hundred dollars, dated 1.4th December, 1841; one payable on or before the 1st of January, 1842, and all the others on or before the 1st of January, 1843, were produced by the plaintiff. It was also proved that the defendant had enclosed and planted a part of the land in 1842, and the witness was of opinion that the improvements made by the defendant were worth the use of the land. No notice to the defendant to quit before the commencement of the action was proved.
    The defendant continued on the land, improving and cultivating it until September, without any intimation on the part of plaintiff that his occupancy was contrary to the will of plaintiff. In September, before the crop was gathered, indeed before it was mature for harvest, this action was commenced, and if the plaintiff had a right to recover, he had a right to the land, with all its incidents at that time — and the question with the court was, whether plaintiff could then reap what defendant had sown; as a matter of strict right; his Honor thought not, but regarded defendant as a tenant for the year. Under this view, there was a verdict for defendant.
    The plaintiff moved for a new trial, on the following grounds:
    1. That his Honor, the presiding Judge, charged the jury that the plaintiff ought to have given the defendant notice to quit before commencing his action, and that, not having given such notice, he was not entitled to recover.
    2. That his Honor charged the jury that the plaintiff, not having given the defendant notice to quit immediately after the expiration of twenty days from the time of payment of the first note, and having permitted him, by such want of notice, to plant a crop on the land, might be considered as consenting to his holding it for the year.
    3. That the verdict was contrary to law and evidence.
    Peronneau, Mazyck & Finley, for the motion,
    cited the following authorities : 1 N. & McC. 373 ; 1 Wendell, 418 ; IT. R. 53; ib. 162; 8 East. 358 ; 7 Cowen, 747; 3 Campbell, 8; 7 Halstead N. J. Rep. 99.
    Bellinger, contra,
    cited 7 T. R. 117, 4 Geo. 2, c. 8, sec. 2 ; Wilson ads. Weathersby, 1 N. & McC. 373 ; Harper’s Hep. 71; 2 N. & McC. 417; Waller ads. McBurney, MSS. Dec. v. 2, 328 ; 3 Blackstone Com. 145 ; 3 ib. 150, and 275, (Tucker’s edition ;) 2 Caine’s Rep. 169 ; 2 J. R. 75 ; 10 ib. 335; 13 ib. 235; 1 McMull. 449; 2 Hill 367; 4 Kent’s Com. 112 ; 3 Salkeld, 222 ; 4 Wendell, 327 ; 4 Kent. Com. 117; 1 B. & C. 448, (8 E. C. L. 126 ;) Comyn bn Landlord and Tenant, 291 ; Roscoe on Real Actions, 524, •
   Curia, per

Butler, J.

I shall not dispute the general proposition, that where a definite period is fixed for the possession of land by a tenant or. vendee, notice to quit need notbe given to entitle the landlord or vendor, to bring ejectment. Where the parties, by their own contract, limit and designate the terms of the possession,, in general, they will be bound by them ; and one that holds over after such understanding, mutually recognized, would be a trespasser, because he would be holding the land against the consent of the owner. There can be no trespass, unless it be an act done against the consent of the owner of property. One that goes into possession under a legal title, and holds over by the consent and acquiescence of the landlord, is a tenant at sufferance, and not a trespasser, who occupies an adversary position to his landlord. Whether the contract under which the defendant entered in this case, was forfeited, absolutely, on the 20th of January, 1842, or on the 1st of January, 1843, when all the money was to be paid, we will not now undertake to determine. The inclination of the law is to give instruments such an operation as to avoid forfeiture, if possible. For the purpose of deciding this case, we may assume that the contract was forfeitable at the earliest day, to wit, the 20th January, 1842; and that on that day the plaintiff had a right to enter and resume the possession of the land. It was competent for him, however, to waive the forfeiture, and to suffer, by his consent, the defendant to continue on the land for the year; or to recognize the continuance of the contract, that is, to look to the defendant for the payment of his note, instead of taking the land:

In conscience he ought not to keep the note and the land too. The fact was not disputed, but that plaintiff kept the notes; and it was a fact, asserted at the trial. though not noticed in the report, and one that is unquestionable now, that the plaintiff sued to judgment the first note that was due January, 1842. Now, suppose he had received payment on that note, and had suffered the defendant to go on, in the year 1843, to plant and make a crop, as he had done the year previous, would not such acts and acquiescence shew that plaintiff recognized the possession from year to year! and could he, under such circumstances, have brought an action in the fall of the year, 1843, to evict the defendant!

In the fall of 1842, the plaintiff had not acquiesced so long, nor had he done so many acts of recognition, but he had suffered the defendant to remain eight months, improving and ^cultivating the land, without manifesting any disposition to rescind the contract; and, in the meantime, sued him on his first note; shewing that he had waived the forfeiture, and was acting on a continuing contract. Under such circumstances, the jury were well warranted in the conclusion that the possession of defendant was rightful, and not tortious. He was properly regarded as the recognized tenant for one year at least. As was said by Lord Mansfield, in the case of Right vs. Darbey, 1 T. R. 162, if there be a lease for one year, and, by consent of both parties, the tenant continues in possession, the law implies a tacit renovation of the contract. So, in this case, the acts of both parties shew that the defendant was to hold the possession for the year. We think, therefore, the motion for a new trial should be refused.

Q’Neall, Evans and Wardlaw, JJ., concurred.

Richardson, J., absent.  