
    (Supreme Courj.)
    Jackson ex dem. Jane Van Alen, against Rogers.
    
      A parol gift of lands creates only a tenancy at will. If the donee lease, and the donor (10 not ratify his act, the mere permitting thejessee to build and enjoy under the term, will not prevent the donor from legally devising the land, and his clevisee may recover without notice `to quit.
    
    THIS was an action of ejectment for a store and lot at Kinderhook, on a demise laid 1st June, 1795. The application was to set aside a verdict for the P^a^nt"iff, and grant a new trial.&emdash;The facts of the "case were these,
    
      Lawrens Van Alen was in possession of the premises for a period of more than 30 years before the bringing of the present suit. John C. Holland married his daughter, and was a drunke-n dissipated character, frequently requesting Lawrens for a deed ^ie premises, and was as often refused ; at last, he, Lawrens, said to him, and but once, “ well John, 
      you may take the kraal (meaning the premises) and I will deduct 60/. from your wife’s portionno writings were signed, and these expressions were before building the store in question.
    
      Holland afterwards leased the premises to McMechen for 9 years, and McMechen, in consideration, was to build a store on them; he did so, and at the time he began to build, Lawrens had grain on the premises. Lawrens was at first dissatisfied when he heard Holland had made the lease, but afterwards was satisfied, saying it would benefit Holland's children. The lease was made in the year 1785. In August, 1794, Holland (the first lease being out) made a second lease to McMechen (the partner of the defendant) for 5 years, at the annual rent of 30/. Lawrens heard of the second lease from strangers, and was dissatisfied with it, particularly when he found the rent was not to benefit Holland's children. He frequently talked of taking the property into his own hands, and afterwards devised the lands to the lessor of the plaintiff for life, by will dated 19th June, 1790. Lawrens died in May, 1795; the action was brought without any notice to quit.
    The question on these facts submitted to the court was, ought the lessor of the plaintiff to recover?
   Per Curiam, delivered, by Kent, J.

In the argument for a new trial in this cause on behalf of the defendant, it was contended that the lessor of the plaintiff ought not to recover:

1st. Because the lease from Holland to McMechen amounted to a disseisin of Lawrens J. Van Alen, and destroyed his capacity to devise.

2d. That the second lease from Holland to McMechen, was still subsisting at the commencement of the suit, and was a lawful impediment to the plaintiff’s recovery.

3d. That the defendant was at all events tobe deemed a tenant from, year to year, and so entitled to six months notice to quit.

1st. To constitute an actual disseisin, or one in fact, there must be a tortious entry and an actual expulsion. , No such thing appears, or was pretended in the present case, nor was there a disseisin admitted by election. The distinction of a disseisin by election, as contra-distinguished from disseisin in fact, was taken for the benefit of the oxvner of the lands, to extend to him the easy and desirable remedy of assize, instead of" the more tedious remedy of a writ of entry. Whenever an act is done, which immediately, and of itself, creates an actual disseisin, it is still taken to be an actual disseisin, notwithstanding the introduction of the doctrines of disseisin by election; as, if a tenant for years, or at will, should enfeoff in fee ; and on the other hand, those acts which are susceptible of being made disseisins by election, are in fact no disseisins till the election makes them so ; as if a tenant at will, instead of making a feoffment in fee, should only make a lease for years.

No such election was ever made in the present case, and consequently there was no disseisin. Making a devise has been deemed, in a similar case, an intimation of an election, not to be disseised ; and if Holland was tenant at will (and no greater interest can be inferred in him, because no greater interest can be created by parol) a lease for years by him can be no disseisin, unless the true owner elect to make it so, nor does it destroy his capacity to devise.

These are briefly the settled distinctions between disseisins in fact, and disseisin by election. They were generally hinted at or brought into view, com-merited upon and explained in the case of Atkins and Horde, one of the most learned and elaborate judicial discussions on a question of real property to be met with in modern times, and they are likewise historically and ingeniously illustrated by J. W. Butler, in one of the notes to his edition of Coke upon Littleton.

I shall therefore pass the whole of this doctrine by, as having no influence on the present case, nor should I have noticed it at all, had not the counsel for the defendant, appeared to rely much upon it, and to consider it as strong ground in the cause.

2d. In respect to the existence and force of the second lease from Holland to McMechen. I would observe, that notwithstanding the gift of the premises to Holland by Lawrens, he had never any greater interest in them than an estate at will, because Lawrens, to whom the premises belonged, never alienated them to him by deed or writing, nor made any parol demise of the same for a term not exceeding three years, and reserving a rent thereon. Holland was, consequently, by the force and effect of the statute of frauds, but a tenant at will, when he made the first lease to McMechen ; and when he made the second lease, he was still but a tenant at will, and so had no authority to make either lease, because such authority resides, not in a tenant at will; nor can a parol gift of land in fee operate as an authority to make leases, because the statute of frauds declares expressly what shall be the operation of such parol grant; it shall “ have the force and effect of leases or estates at will only, and shall not have any other, or greater force or effect.” I therefore do not regard any intimation that may be given by the circumstances of the subse-

quent assent, either tacit or express, of Lawrens, to either the first or second lease; because it is a settled doctrine that no subsequent assent will make gooda void lease, although subsequent acts' may operate as a new grant. Both the leases to A'TcMcclzen were, therefore, from the beginning, null and void, because made by a tenant at will who has no capacity to grant.

3d. The third point is, whether the defendant was entitled to notice to quit.

Where the holding is not for a determinate period but from the reservation of an annual rent, or from other circumstances, is susceptible of being construed into a holding from year to year; in such cases the courts have adopted as a rule favorable to the interests of both landlord and tenznt, that neither party shall determine the lease without six months pre~ vious notice to the other, of that intention; but where the lease is for a definite period, or determinable on a certain event, no notice is requisite, as both parties are apprised of the termination. So if the tenant be strict-4r a niere tenant at will, as where one enters under a void lease ; there, I apprehend, no notice is necessary. The N. P. decision in the case of Goodtitle ex dem. ~4c1eare, v. Prentice, before Gould, J. in 1790, is ex~ pressly to this point.

in the present instance the defendant, the partner of .zWcMec/ien, entered under a void lease, and became a nz~crc trespasser, if Lawrens chose to make him so~ and so continued to the bringing of the suit; no subsequent agreement wa$ made, no actual rent was stipulated for between him and Lawrens, none was demanded or paid, Lawrens did nothing to recognise him as his tenant, and to create between him the relation of landlord and tenant, and consequently no notice was necessary.

. I am accordingly of opinion that the defendant take nothing by his motion.

Judgment for the plaintiff.  