
    George Say v. E. Fowler Stoddard.
    1. "Where, by the terms of a written lease, the tenancy is to continue so long as the parties shall mutually agree, and either party may determine it on four days’ notice — the rent to be paid monthly or semimonthly, as may be most convenient — such renting creates a tenancy at will.
    2. The lessee, in such case, acquires no certain indefeasible interest in the premises, which he can sell and transfer to another.
    3. Such tenancy will be determined, by implication of law, upon the death either of the lessor or lessee; or by the desertion of the premises by the lessee; or by the sale and transfer of his possession to another.
    4. Therefore, where during such a tenancy the lessor died, having by will devised the premises; and the lessee, a month afterward, sublet a portion of the premises to the plaintiff, without the consent of the devisee; and shortly thereafter removed wholly therefrom; and the devisee thereupon entered and removed doors and windows from a dwelling house situated on the demised premises, and in the occupancy of the plaintiff; without unnecessary interference with the person or property of the plaintiff, and without a breach of the peace, such entry and acts of ownership were not tortious, and do not constitute a cause of action in favor of the plaintiff against the devisee.
    
      Error to the Superior Court of Montgomery county.
    The plaintiff in error was plaintiff in the court below, where his amended petition was demurred to, on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained, and plaintiff, not desiring farther to amend, judgment was entered for defendant. The action of the court in sustaining the demurrer is here assigned for error. The petition was substantially as follows :
    That, on August 27th, 1869, James Celey leased a dwelling-house in the city of Dayton, in the county of Montgomery, with the lot whereon said house is situate. Said written lease being as follows, to wit:
    “Henry Stoddard, Sr., has rented to James Celey his Eowler House, on lot No. 4, on the east side of St. Clair street, between Water and First streets, in Dayton, at a rent of thirteen dollars á month, for so long as the parties shall mutually agree to continue the renting under this agreement. Said Celey being in the employment and service of Stoddard & Co., in their mill; they are to pay the rent monthly or half monthly, as may be most convenient, out of Celey’s wages. Either party may put an end to this renting by giving the other party four days’ notice, in writing, that this renting is to cease at the expiration of four days from the service of such notice on the other party. Said Celey agrees to use and treat the premises in a proper tenant-like manner while he occupies. The rent to commence August 27, 1869.
    “ Signed.] “ Henry Stoddard, Sr.,
    “(Stamp.) “James Celey.
    “Paid up to Oct. 1, 1869.”
    That James Celey, on the 27th day of August, 1869, with Henry Stoddard’s, Sr., consent, took lawful and peaceable possession of the premises, under said lease, and continued in possession thereof till the 7th day of December, 1869, when he moved out of said premises.
    That while said Celey was in possession of said premises, and before he moved out, he did, on the 1st day of December, 1869, rent two rooms of said house to the plaintiff, George Say, for six dollars per month — Say paying to Celey, on the day of renting, four dollars rent on the month of December, 1869; that on said 1st day of December, 1869, Say, with his wife, moved into the said two rooms of said house, while Celey, with his family, occupied the other room, with small kitchen, immediately in the rear of and adjoining the two rooms occupied by Say. Said Celey continuing to occupy the rooms in the rear of Say’s, till the 7th day of December, 1869, when he, Celey, moved out of the ju-emises; Celey owing, on back rent, seven dollars, for month of November, 1869 ; George Say and his wife continued in possession of his tw7o rooms from December 1st till December loth, 1869, when, on December 15th, 1869, E. Eowler Stoddard, the defendant, the son of Henry Stoddard, Sr., with screw-driver, hatchet, and ax, went, on said 15th day of December, 1869, to the front door of the room fronting on St. Clair street, Say and his wife being in their rooms at the same time; that E. Fowler Stoddard, with his instruments aforesaid, and without the consent of Say or his wife, and against their remonstrance, proceeded to get possession of said rooms, occupied at the time by Say and his wife, by taking hold of the knob of the front door, leading into the front room, which was fastened by a lock. The door being opened by defendant, the plaintiff, Say, warning him not to come in. That the defendant, on said 15th day of December, 1869, and while Say (who was 69 years old in March, 1871) and his wife were in their rooms, did enter their rooms, and did remove, take off, and carry away five doors and five windows — being all the doors and windows belonging to the rooms occupied by the plaintiff, George Say, and his wife ; and also being all the doors and windows of the rooms occupied by Celey and his family, till he moved, December 7, 1869, excepting one door in rear room of house. And in removing one of the doors in the room, immediately in the rear of and adjoining the front room, in order to get at the door to take it off the hinges, the defendant did move a-cupboard of plaintiff', so he could get at the door with his screwdriver. After the doors and windows were taken away by defendant, the plaintiff hung up at the door, strips of carpet. The day, on which the doors and windows were taken down and carried away by defendant, was cold and chilly, and remained cold till plaintiff' left said premises,, which was on the 20th day of December, 1869. Plaintiff' being compelled to leave the premises by reason of defendant’s acts, as aforesaid. Snow had falleu while plaintiff' was in possession of rooms, and during the time the doors- and windows were out.
    No written notice to leave said premises was ever served, by anyone — on either Say or Celey.
    Neither did Celey ever serve a written notice on Stoddard, Sr., or defendant, that he, Celey, would leave the-premises.
    Said Henry Stoddard, Sr., died on November 1,1869, testate, leaving the said defendant one of his executors and devisee under the will of said decedent. Said plaintiff' says-that, by reason of the acts of the defendant herein set forth, said plaintiff has sustained damage five thousand dollars, for which he asks judgment.
    
      J. H. and John G. Baggott, for plaintiff in error:
    Celey’s tenancy was from month to month, for the 'reason that the rent was to be paid monthly, or half-monthly. Walker’s Am. L. 292, 293 ; Taylor’s Landlord and Tenant, secs. 55, 58, 476-8, 481, 482.
    A tenant has the right to sublet, unless the agreement between him and his landlord limits his power to do so. Taylor’s Landlord and Tenant, secs. 108-111; 1 Wash, on Real Prop. 336, 340.
    If it were a tenancy at will, it would require a notice to-quit of a definite length of time to determine the tenancy.. 1 Wash, on Real Prop. 398.
    
      Neither Celey nor Say was a tenant at sufferance. Walker’s Am. L. sec. 184.
    Prom the facts shown by the record in this case, E. Fowler Stoddard, defendant in error, was not justified in resorting to force to expel tenant, George Say, but must pursue his legal remedies. Taylor’s Landlord and Tenant, sees. 523, 524, 531; Walker’s Am. L. secs. 133, 134; Swan’s Treatise (Derby’s ed., 1855), 634, 635; 4 Kent’s Com. 118; William’s Real Prop. 351; 9 Wend. 201; 4 Johns. 159, 160; Ives v. Ives, 13 Johns. 235; Sampson v. Henry, 11 Pick. 379; 23 Eng. Com. Law, 398; 8 Eng. Com. Law, 280; Newton v. Harland, 1 Manning & Granger, 644.
    
      J. A. Jordan, for defendant in eri’or :
    A tenant at will has no interest that he can assign. 1 Wash. on Real Prop. 373; Cooper v. Adams, 6 Cush. 87; 4 Hand. 450.
    A lease at a fixed price per month, to continue as long •as the parties can agree, payable monthly or half-monthly, terminable on four days’ notice, is a tenancy at will. It appeal's that Henry Stoddard died November 1,1869, before Say took possession. Such death terminated the tenancy at will. 1 Wash, on Real Prop. 372; James v. Dean, 11 Ves. 391; 12 Ga. 386, 400; 17 Mass. 282; 10 Met. 294; 4 Cush. 563; 21 Me. 114.
    It is not trespass for the owner to enter and take posses•sion or despoil by force, a tenement held by a person without •color of title. Fitford v. Armstrong, Wright, 94; Simmons v. Thompson, 1 Hand. 521; Smith v. Hacokes, 5 West. Law Monthly, 80; 4 Am. Law Rev. 429; 7 Met. 147; 4 Allen, 319; 63 Eng. Com. Law, 904; 24 Me. 242; 7 J. J. Marsh. 597; 23 Vt. 635; 9 Wend. 201; 4 Johns. 150; 13 Ib. 235.
   Scott, Chief Judge.

The contract of lease between ■Stoddard, Sr., and Celey, set out in the petition in the court •below, created, by its express terms, a tenancy at will.

True, the rent was to be $13.00 a month, and was to be paid by Stoddard' & Co. out of Celey’s wages, monthly, or half monthly, as might be most convenient. But the renting was to continue for so long as the parties shall mutually agree to continue the renting under this agreement.” And, again: “ Either party may put an end to said renting by giving the other party four dayls’ notice, in waiting, that this renting is to cease at the - expiration of four days from the service of such notice on the other party.” It is clear, from this language, that the tenant was to hold at the will of the lessor, though while the tenancy continued the rent-was to be paid monthly or half monthly. The character of the tenancy is not affected by the fact that four days’ notice of its determination, is provided for in the contract; for in a general tenancy at will, reasonable notice must be given by the party whose will determines it, to the other party ; and the contract here fixes the length of that notice. It is said by Blackstone : “An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor, and the tenant by force of this lease obtains possession.” 2 Bl. Com. 145; Litt. sec. 68. Such tenant has no certain indefeasible estate, nothing that can be assigned by him to any other, because the lessor may determine his will, and put him out whenever he pleases. 2 Bl. Com. 145 ; Taylor’s Land!, and Ten. 48.

Tenancy at will may be determined by implication of law. Such implication will arise on the death of either of the parties. So, if a tenant at will assigns over his estate to another, who enters on the land he is a disseisor, and the landlord may have an action of trespass against him. Greenl. Cruise on R. Pr. 244; Taylor’s Landl. and Ten. 48.

So, also, a desertion of the premises by the lessee, puts an end to a tenancy at will. For he thereby discontinues his lawful possession and terminates his relation to his lessor, which is only of a personal character, and he ceases to have any interest in the premises which he can transfer or control.

The plaintiff shows, by his petition, that Stoddard, the lessor, died November 1,1869, leaving the defendant his devisee of the premises. Celey, the lessee, continued in possession till December 1st, when he undertook to sublet a part of the premises to the plaintiff'. It is not alleged that the defendant assented to this continuance of possession, or subletting. On the 7th of December, the lessee, Celey, removed wholly from the premises ; and, eight days afterward, the grievances occurred of which the plaintiff' complains. As against the defendant, the plaintiff acquired no rights by his contract with Celey, for the latter had none which he could transfer. The facts stated do not show that the relation of landlord and tenant was ever created between the parties to this suit. There was neither privity of estate, nor of contract between them. And the acts complained of were but the lawful exercise of the rights incident to the defendant’s ownership of the premises, and are not charged to have been attended with any unnecessary interference either with the plaintiff’s person or property.

¥e think the court below properly sustained the demurrer to the plaintiff’s petition, and its judgment is affirmed.

Day, Wright, Johnson, and Ashburn, JJ. concurred.  