
    Zebina Gleason vs. Elijah Gleason.
    The owner of land, who has leased it by parol for a year, in consideration of the lessee’s taking care of certain trees thereon, cannot, on the lessee’s neglecting to take care of the trees, maintain an action against him on Rev. Sts. c. 104, with* out a previous notice to quit according to Rev. Sts. c. 60, § 26.
    This was a proceeding under the Rev. Sts. c. 104, commenced on the 24th of June, 1850; and was submitted to this court upon the following statement of facts: The defendant entered on the premises described in the writ, on the 1st of April, 1850, under a parol agreement with the plaintiff, that he should hold them for one year, in consideration of his taking care of certain young trees on the premises. The defendant did not take proper care of the trees, and on the 22d of June, 1850, the plaintiff entered upon the premises, for the purpose of terminating the lease and talcing possession of the premises; and placing his hand gently on the defendant’s shoulder, ordered him to quit the premises forthwith with his family and property, which the defendant refused to do. If the plaintiff on the foregoing facts can maintain this action, judgment is to be entered accordingly; if not, judgment is to be rendered for the defendant.
    This case was argued at the October term, 1850, by L. H. Boutell, for the plaintiff, and F. H. Dewey, for the defendant.
   Shaw, C. J.

This case is conclusively settled by the opinion of the court in Howard v. Merriam, 5 Cush. 563. The defendant entered upon the premises, under a parol agreement for one year. Such a demise by parol, by force of the statute, Rev. Sts. c. 59, § 29, can give the lessee no higher or greater estate than a tenancy at will. If the agreement to take care of the trees was in the nature of an agreement to pay rent, and the failure to perform the stipulated duty was a neglect to pay rent, the plaintiff had no right of entry, till after fourteen days’ notice to quit; if it was not such a case, then not until after three months’ notice. Rev. Sts. c. 60, § 26. Without one or the other, the plaintiff had no right of entry, and this process will not lie on that branch of the statute, which regulates the rights of landlords and tenants. And it is very clear, from the facts, that here was no forcible detainer within the meaning of the other clause of the same statute, Rev. Sts. c. 104, § 1; for until notice to quit, the plaintiff had no right of entry. Judgment for the defendant.  