Den ex dem. Mhoon v. Drizzle, 14 N.C. 414, 3 Dev. 414 (1832)

Dec. 1832 · Supreme Court of North Carolina

14 N.C. 414, 3 Dev. 414

Den ex dem. William G. Mhoon v. John Drizzle.

Where the owner of land agreed that A should cultivate it during his life, or as long as he pleased, with a restriction as to a sale of it:' Held by Hkndiíiison, C. J. and Daniei, J. that a tenancy at will was created, and that the estate might be determined by either party? • by RuEMit, J. that no estate vested in A.

Ejectment, tried on the Fall Circuitof 1831, before Maetin. Judge, at Bertie.

The plaintiff claimed under a judgment and execution against the heirs of one William .Maer, and having made out his case, the defendant produced and proved the following deed:

“ Articles of agreement entered into between William Maer and “John Drizzle, both of, &.c. witnesseth: that the said William Maer “ does agree on his part, to let the said Drizzle tend, use and occupy, “ a cei-tain field in the low grounds, (then followed a description of the' “ land,) being the field he, the said D izzh, has now in possession, “ during his natural life, ór so long as the said Drizzle may wish to “ tend it himself, and no longer. In consideration of which, the said “ John. Urizzl does agree on his part, to clear’ and get under cultivation “ as much of said land, between, &c. (describing the land to be cleared^ s* as he conveniently can, and it is understood by both parties, that if “the said Orfri/e should atany time hereafter, decline tending said land “ himself, that he shall have no rig’ht to rent, lease, or in any manner “whatever, put it in the possession of any other person, but at the “ time of so declining to use it himself, it shall return to him the said “ Maer, or in case of his death, to his estate.

“ In witness wnereof, we have hereunto set our hands and seals this “ 20th day of December, A. D. 1813.

W MAER, [n. s.]

Witness, JOHN DRIZZLE, [b. s.}

HENRY BATES,

A- COPELAND.”

At tiie time the defendant took possession, a small field of about ten acres was cleared ; since that time, he bad cleared about si <ty acres, and had continued the possession from the date of the above instrument, up to the trial.

His Honor instructed the jury, that the obligation produced by the defendant was, upon its face, voluntary; that a valuable consideration purported either a present or future advantage to the grantor, or a present or future loss to the grantee ; that the instrument under which the defendant claimed, purported neither ; that the stipulation that the defendant should clear land, “ if convenient,” imposed no obligation upon him, but left it simply as a matter of choice, whether he should or should not clear more land.

The jury returned a verdict for the plaintiff, and the defendant appealed.

Badger, for the defendant.

Gaston, Iredell and Hogg, contra.

Daniel, Judge.

The defendant contends, that he has a life estate by virtue of the deed executed by M.ier to him. If the deed can be considered as a feof-meut at co:n.n>a law, and the defendant entered under it, yet if there was no livery of seisin made to him, he Would only be tenant at will. (Lit. s 70 1 Thomas' Coke 637.) If the declaration on the face of the deed, that the defendant was then in possession, coupled with the fact, that the deed is subscribed by witnesses, would authorise an inference, (which I think it does not,) that livery of seisin had been made, yet as the conveyance is without any consideration or any use declared, a use would be raised to the feoffor, since the statute of quia emptores, (1 Saun. 62.) and the possession would be executed to the use, by the statute of uses. Maer would in that event, have the freehold estate, and the defendant be his tenant at will. Again, if the deed is viewed as a lease, it must be considered as a lease at will, “itis regularly true,” says Lord Coke, “ that every lease at will, must in law, be at the will of both parties, and therefore, when the lease is made, to have and to hold at the will of the lessor, the lease implieth it to be at the will of the lessee also ; for it cannot be only at the will of the lessor, but it must be at the will of the lessee also. Anfl so it is when the lease is made to have and to hold at the will of the lessee, that must be at the will of the lessor.” (1 Thomas’ Coke 637.) The defendant had a right to put an end to his tenancy whenever he pleased, and Maer had the same right.

If the defendant was tenant at will of the land by a parol lease, before the date of the deed, as no consideration was paid, or intended to be paid, and no use declared, the deed operating as a release, cannot enlarge the estate, so as to give a life estate to the defendant; a release for life on such an interest, would, since the statute quia emptores, only raise a use to Maer in the same manner as would a feofment without consideration, (Loyd v. Spillet, 2 Atk. 148, 2 Doug. 745, note,) which use would in like manner have the possession drawn to it by the statute of uses. So in whatever light the case is viewed, the defendant could hold only as tenant at will. The death of Maer put an end to the tenancy at will, and the land was subject to be sold for his debts, and as the deed would not have operated as an estoppel to Maer in his life time, neither will it so operate against the lessor of the plaintiff. If the instrument is to be considered as a personal covenant, of course it would be no defence to the action. I think the judgment should be affirmed.

Henderson, Chief-Justice.

An estate at will, is an estate at the will of either party, and if at the will of one, it must be at the will of both. There can be no such estate as one at the will of one party only. In this case, the fact that Bridle was authorised to put an end to his tenancy whenever he pleased, conferred the same right on Maer, and Meier’s will was determined when his estate was sold, for he had no longer a will on the subject. It appears to be a hard case, but it was the defendant’s folly or misfortune to make such a contract I am instructed by Judge Ruppin to say, that he concurs in the opinion principally because he thinks the writing a mere personal contract, not attaching to the land, or passing, or intended to pass an estate in it, but resting entirely in contract.

Per Curiam. — Judgment appirmed.