#### DEN ON DEMISE OF GREEN B. HUMPHRIES *vs.*BERRYMAN HUMPHRIES.

June 1843

Where a person is put in possession of land by the owner without agreement for' rent,, and with an express provision that he shall leave it whenever 'the owner may require him to do so, he is not a tenant from year to year, but stricty a tenant at will, and is not entitled to six months’ notice to quit.

A right to-emblements does not give a right to the possession or an estate in the lands, but only the privilege of ingress and egress, as far as necessary for due attention to the crop.

The cases of *Love*v *Edmouston,*1 Ired. 153, and. *Carson*v *Baker,*4 Dev. 330, cited and approved.-

Appeal from the Superior Court of Law of Gleaveland County, at Spring Term, 1843, his Honor Judge Nash presiding.

On the trial of this ejectment it was proved, that the father of the defendant was the owner of .the land, and had put the defendant in possession, with an express agreement that he was to leave it whenever the father should require him to do so. There was no promise or agreement by the father to give the land to the defendant. The defendant remained in possession of the land more one year, and made improvements on it. The father became dissatisfied with the defendant, sold the land to the'lessor of the plaintiff, and conveyed it to him by deed, bearing date the 14th of February, 1840. In the latter of the Spring, or first of the Summer of the same year, he gave the defendant notice to leave the land, and, the latter not doing so, this action was brought in August, returnable to the Fall Term, 1840, of the Superior Court. It was urged on the part of the defendant, that he rvas a tenant from year to year or at will, and entitled to *363six months’ notice. The Court instructed the jury, that the defendant was not a tenant, but a mere occupant, and not entitled to six month’s notice. The jury found a verdict for the plaintiff, and judgment being rendered pursuant thereto, the defendant appealed.

*Hoke*for the plaintiff,

cited ■3 -Dev. 1 Dev. & Bat. 567. *Love*v 4L4. *Edmonson,*1 Ired. 152. 4 Taunt. 12S. 5 Barn & Aid. 604. 1 Dow. & Ry. 272. 3 Camp. 510. 2 Blac. Rep. 1173. Co. Lit. 55. a. note 3. 11 Yes. 391. 16 Ves. 57, 262,

*Caldwell*for the defendant.

Ruffin, C. J.

It is true that every occupation of land under another is, in modem times, from considerations of policy, *prima facie*deemed a tenancy from year to year.— But it is clear, that, while the owner is thus under the necessity of shewing the particular terms of the contract under which the occupation arose, he may shew that it was not a tenancy from year to year, but strictly a tenancy at will, or any _other tenancy to be determined at a particular time or upon a particular event by the express agreement of the parties ; and by that means avoid the necessity of giving six months’ notice to quit. Thus, one let into possession upon a contract of sale, is but a tenant at will, strictly so called. *Love*v *Edmonston,*1 Ired. Rep. 152. In like manner, one entering under a valuntary promise of the owner to convey, is not tenant from year to year. *Carson*v *Baker,*4 Dev. 220. And those persons, it was held, were entitled, before being sued, to notice to quit for the purpose of determining the lawfulness of their possession, but were not entitled to six months’ notice. So, it would seem, it must be in every case in which the parties contract for a less notice than six months, or agree that there need not be any notice, or the occupation is not referable to a year or any particular part of the year, but is referred expressly to the determination of *364one or both of the parties. *Richardson*v Longridge, 4 Taunt, 128. 5 Barn & Ald. 604. 1 Dow. & Ry. 272.— Here the ease states that-the father .put the son into .posses-without an agreement for rent, and with an express provision, that the latter should leave it “ whenever” the former should require, and not at the end of any year that the father might require. It seems to us, that there could not be a plainer .common law tenancy at will, nor a more distinct renunciation of the right to six mouths’ notice.

As to the argument, that the defendant’s right to the em-blements should prevent the turning him opt in August, when a growing crop might need cultivation and saving ; the answer is, that the right to the emblements does not give a right to the possession or an estate in the land, but .only the privilege of ingress and egress, as far as necessary, for .due attention to the crop.

JPer Curia.m. Judgment affirmed.