Blumenberg v. Myres

By the Court, Rhodes, J.: The plaintiff, who was the lessee of Booth for the term of five years, commencing June 1, I860, sub-let the premises to the defendant, for the term of three years from February 15, 1862, and on the 15th of April, 1864, he and the defendant executed an instrument by which it was agreed that “ said lease be prolonged up to June the first, 1865, being the full term of the lease said lessor holds from Junius Brutus Booth, for five years ending June the first, 1865." On the 23d of March, 1864, which was prior to the execution of the last mentioned instrument and before the expiration of the plaintiff’s term, he procured from Booth a receipt for the sum of four hundred dollars, for one month’s rent for the premises, from June 1st to July 1st, 1865. On the 31st of May, 1865, Booth leased the premises to the defendant for one year from July 1, 1865. This action was commenced under the Forcible Entry and Detainer Act, July 31, 1865. The defendant had j udgment on the findings.

The instrument executed April 5, 1864, was an assignment to the defendant of the lease of Booth to the plaintiff. It purported to pass all of the term then remaining, and it in fact left no reversionary interest in the plaintiff. (Taylor Land, and Ten., Secs. 16, 109, 426; 1 Wash, on Real Prop., 333.) Ro right of entry therefore remained in or accrued to the plaintiff by reason of the expiration of the term. That right attended the reversion, and both were in the hands of Booth, except in so far as they may have been affected by the transaction evidenced by the receipt of Booth.

Accepting the receipt as constituting a lease to the plaintiff, [96]the question is what term was thereby created ? The plaintiff holds that the receipt is evidence of a lease for a year; that the holding over for one month by the defendant, and the payment by the plaintiff to Booth of one month’s rent, created, by implication of law, a new term of one year between Booth and the plaintiff, commencing at the expiration of the term of five years. The doctrine which the plaintiff invokes, that where the lessee holds over and the lessor receives rent accruing after the expiration of the term, a new tenancy arises for a further term, subject to the covenants and conditions of the original lease, is true as a general rule, and the reason is, that the receipt of the rent is considered as an acknowledgment of a subsisting tenancy. But it does not follow that the new term must necessarily be a year. Where the former lease was for a period less than a year, as a quarter or a month, or where the term though extending to a year or more, was composed of such periods, there is no ground for holding that the new term, presumed from the holding over of the tenant, and the receipt of rent by the landlord, extends beyond one of the periods of the tenancy. The tenant who enters under a lease for a month, and holds over, and during the second month pays rent, is not entitled to claim a new term of one year, but he becomes a tenant from month to month. When the tenancy is found from the fact of the holding over of the tenant and the acknowledgment of the landlord, it is presumed to be of the same character—as annual, quarterly, monthly, etc.—and upon the same covenants and conditions as the previous tenancy. It rests upon implication alone. But when the parties have made an express agreement relating in any respect to the new tenancy, then in that respect there is no room for implication. If the parties specify the rent, the time of payment, the term, or any of the usual covenants or conditions of a lease, whether they agree or disagree with the terms of the former lease, they enter into the new lease and determine the rights of the parties while the tenant is holding over. The receipt produced by the plaintiff showed the payment by him of four hundred dollars for one month’s rent,