
    Jackson, ex dem. Locksell and others, against P. Wheeler.
    ALBANY,
    August, 1810.
    a. entered on the land of B. with his perm ission, as a mere occupant, with-i“g reserved. C'under 'whom A. continued in possession, and afterwards sold &c. to D„ who an? ciaimed°tó iie,ed “from *a! 'Timer8 of8"te nancy was sub-demisT laid by who brought an roent! °!It^was held, that such a disclaimer was sufficient to dispense with ^ a previous notice to quit; but as it was made after the date of the demise',, and no notice to quit was shown, or other determination of the tenancy, so as to prove a right of entry, the plaintiff was nonsuited»
    THIS was an action of ejectment, for lot no. 79. m / ’ Aurelius. The several demises were laid on the 1st of •r_- . _ - ~ January, 1805. lhe cause was tried at the Cayuga circuit, in June, 1809, before Mr. Justice Van Ness.
    
    The plaintiff, after proving the defendant in possession, Vyave jn evidence a deed from Nathan Wheeler to Weston ° Allen, for 200 acres of the north part of the lot, dated the 5th of April, 1803. About 12 years ago, Nathan Wheeler told one -Darius Smith, that he (Wheeler) was owner °-' the lot, and that Smith might go on it, keep Possessi°n I°r Wheeler, and improve it, until Wheeler should want it; and that if Smith did not obtain enough from the land to pay him for his improvements, Wheeler, whenever he wanted the lot, would make it up to him. Smith accordingly went on the lot, built a log house, cleared and made improvements.
    In 1804, Weston Allen came on the land, and told Smith that he was the owner, and had a deed from Nathan Wheeler, and Smith offered to surrender the lot j but Allen requested him to continue in possession, and that when he should want the land, he would compensate Smith for his improvements. Smith was to pay no rent. Smith continued in possession, until the 4th of February, 1806, when he sold all his right in the lot to Parlee Wheeler-, and gave him a deed of the same, and continued to occupy the premises, as the tenant of Parlee Wheeler. Smith, Who was a witness in the cause, testified that he did not intend to convey more than his improvements to Parlee Wheeler, and told him, at the time, that the title was in Weston Alleii, and of the manner in which he occupied, which- facts were well known before to P. Wheeler. Soon after, Smith informed Weston Allen, that he was about" leaving the premises, and requested Allen to come and take care of them. Allen came and succeeded. Smith in the possession, and put one Satterly 'm possession to keep the premises for him. The deed from Smith to P. Wheeler was produced, and was a conveyance in fee, with warranty.
    The defendant’s counsel objected to the plaintiff’s right to recover, unless he also proved a notice to quit. The judge decided, that the defendant was entitled to a notice to quit, unless the plaintiff would show that the defendant had disclaimed to hold under the plaintiff, previous to the time of the demise laid in the declaration. The plaintiff then produced a witness who testified, that he heard the defendant say, (but whether befqre or after the bringing of this action he could not recollect,) that, he meant to hold the land in spite of Allen, under the deed from Smith.
    
    The judge then directed the plaintiff to be called, and nonsuited, as he had not shown a right of entry in either of the lessors, at the time of the demise laid in the declaration. „
    A motion was made to set aside the nonsuit; and the cause, on the above statement of facts, was submitted to the court, without argument.
   Per Curiam.

We cannot distinguish this case from that of Jackson, ex dem. Livingston, v. Bryan. (1 Johns. Rep. 322.) The disclaimer of the present defendant dispensed with the necessity of notice to quit, but it was after the date of the demise. At the date of the- demise, the tenant in possession was not a trespasser, for there was then no determination of the estate, by notice to quit, or otherwise. His sale in fee to the defendant was subsequent. We are of opinion, therefore, that the plaintiff was properly nonsuited, for want of showing a complete right to the possession prior to the day of the demise. That was essential. (Goodtitle v. Herbert, 4 Term Rep. 680.) The motion to set aside the nonsuit must be denied.

Motion denied.  