Mcfarland v. Stewart.

• Decision Date: 02 December 1946
• Citation: 50 A.2d 194
• Parties: McFARLAND v. STEWART.
• Court: Maine Supreme Court

50 A.2d 194

McFARLAND

v.STEWART.

Supreme Judicial Court of Maine.

Dec. 2, 1946.

Exceptions from Superior Court, Cumberland County.

Action by Walter H. McFarland against Leola L. Stewart for the value of defendant's use and occupation of plaintiff's property as a tenant by sufferance after termination of her tenancy at will. Judgment for plaintiff, and defendant brings exceptions.

Exceptions overruled.

Arthur Chapman, Jr., of Portland, for plaintiff.

Jacobson & Jacobson and Silas Jacobson, all of Portland, for defendant.

Before THAXTER, MURCHIE, TOMPKINS, and FELLOWS, JJ., and MANSER, Active Retired Justice.

MURCHIE, Justice.

The issue which the defendant in this case brings forward on exceptions involves the negligible sum of $15 but a principle of law which would be of considerable importance under any circumstances and is made increasingly so because tenancies of real estate are subject to a governmental control that may continue tenants in possession against the will of the owner of the property they occupy for substantial if not indeterminate periods. Baldly stated that issue is whether a tenant at sufference may occupy property free of charge.

The case presents the unusual if not the unique situation of having been tried, i. e., submitted to the Court below, on an oral agreed statement of facts. Under those circumstances surely neither party can assert the claim that the facts are not exactly as the Justice who decided the case without the intervention of a jury declared them. The right of exceptions on questions of law was reserved to the parties so that the issue as to whether the proper law has been applied to those facts is squarely presented.

The facts are that the defendant occupied a tenement prior to November 30, 1945 as the tenant at will of the plaintiff and that her estate was terminated on that day by a notice meeting the requirements of R.S.1944, Chap. 109, Sec. 2. The defendant tendered the plaintiff an amount equal to a month's rent (according to the terms of the former tenancy) on the day following. Acceptance of it would have created a new tenancy at will, which the plaintiff declined to do. He took no action to eject the defendant either physically (without force) or by legal proceedings but relied on her declared willingness to get out as soon as she could. She vacated the property on December 15, 1945. The agreed facts include a stipulation that if the defendant is liable to pay the plaintiff for the use and occupation of the premises for fifteen days the measure of value of that use and occupation is that for which the judgment was rendered. The decision is grounded in a ruling that the defendant became a tenant at sufference of the plaintiff at the expiration of her tenancy at will and a finding that her holding over was by permission of the plaintiff.

The questions of law to be resolved are three: whether a tenant at will holding over after his tenancy is terminated by notice becomes a tenant at sufference; whether a tenant at sufferance becomes a tenant at will against the wishes of the owner of the property he occupies by the lapse of fifteen days; and whether a tenant at sufference is holden to pay the owner of the property he occupies whatever may fairly measure the value of his use and occupation on the basis of an implied contract.

There can be no doubt on the first question. A tenant at will holding over after his tenancy is terminated becomes a tenant at sufference whether the termination results by reason of notice from his landlord (as in the present case), Robinson v. Deering et al., 56 Me. 357, or by the alienation of his landlord's title, Esty v. Baker, 50 Me. 325, 79 Am.Dec. 616; Sweeney v. Dahl, 140 Me. 133, 34 A.2d 673, 151 A.L.R. 356. An estate at sufferance has been recognized in law from the earliest times. Quoting the substance rather than the language of Blackstone's definition of it, such an estate represents the interest of a tenant who having acquired possession rightfully by permission of the owner continues in possession after the expiration of the period to which he was entitled. 2 Blackstone's Commentaries, 150.

The second question is equally free from doubt on the particular facts, which show plaintiff's refusal to create a new tenancy at will by accepting rent from the defendant. This is not to say that such a tenancy may not be created by the lapse of time. Perley v. Chase et al., 79 Me. 519, 11 A. 418, indicates that a mortgagor continuing in possession after the right of redemption has been foreclosed becomes a tenant at sufferance of the mortgagee in the first instance but that his mere retention of possession, which in that case was for more than a full year, would authorize the inference that he had become a tenant at will. This is in line with the declaration of Chief Justice Shaw in Howard v. Merriam, 5 Cush., Mass., 563, at page 571, that a tenancy at will results when a landlord permits a tenant at sufferance to remain in possession and that this is the case ‘ especially if he receives rent of him’ (the emphasis is supplied here). That case is quoted in Dunning v. Finson, 46 Me. 546, where an English case is cited as supporting the principle that a permissive occupancy constitutes a tenancy at will. Doe v. Wood, 14 M. & W. 682.

It cannot be said under our law however that an owner of property who terminates a tenancy at will by notice creates a new one by inaction for fifteen days after the expiration of his notice. The statute authorizing the use of the process of forcible entry and detainer, R.S.1944, Chap. 109, Sec. 1, recites that the process is available in some cases only ‘If commenced within 7 days from the expiration or forfeiture of the term’. That this limitation is not applicable to tenancies at will terminated by notice has already been declared in Dunning v. Finson, 46 Me. 546, and Gilbert v. Gerrity, 108 Me. 258, 80 A. 704. In the earlier of these cases Mr. Justice Kent reviewed legislation dealing with forcible entry and detainer prior to the statutory revision of 1857 and declared the process available in three cases: against (1) disseisors, (2) tenants or subtenants holding under written leases or contracts at the expiration or forfeiture of their terms, and (3) tenants at will whose tenancies had been terminated under the statute. As to the second...