Opinion · Supreme Court of North Carolina

Doe on Dem. of Guess v. McCauley

61 N.C. 514

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1868-01-05
Topic
general

Battle J. It is admitted that upon the facts stated in the plaintiffs bill of exceptions, his lessor had a right to demand the surrender of the possession of the land mentioned in the declaration, and that, upon the refusal of the defendants to comply with the demand, he might sustain an action *516 of ejectment against them. The only disputed question, which has been brought to our attention in the argument, is whether one day’s notice to leave the possession is sufficient, and we are inclined to the opinion that it is not. We think that the occupier ought to have at least time enough to look out for another house and remove to it. It is difficult to say what precise number of days shall be allowed for the purpose, and we will not undertake to decide the question until a case shall arise to call for it.

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Cited by
1 opinion
GUESSv. McCAULEY,61 N.C. 514(1868)
DOE ON DEM. OF JOSIAH GUESS v. WILLIAM McCAULEY.
Supreme Court of North Carolina
(January Term, 1868.)
1. An action of ejectment cannot be maintained upon a demise made on a day before the plaintiff's right of entry begins;therefore, not by a vendor against his vendee (who has failed to comply with the terms of the contract), upon a demise made on a day before the demand of possession.

2. It seems that one day's notice to leave is not sufficient to maintain ejectment in such case.

(Love v. Edmonston, 1 Ire., 152;Butner v. Chaffin, ante, 497, andCarson v. Baker, 4 Dev., 320, cited and approved.)Page 393
EJECTMENT, tried beforeMitchell, J., at Fall Term, 1867, of the Superior Court of ORANGE.
The lessor had contracted to sell the land to the wife of the defendant, and they had entered under such purchase. Subsequently they failed to make payment as agreed, and upon 28 August, 1866,possessionor themoneywas demanded of them. To this the defendant replied, sue me and I will pay you one-fifth, that is all you can get. On the next day this suit was begun. The demise was laid upon 1 (515) August, 1866.

In obedience to an intimation of his Honor's opinion in the court below, the plaintiff submitted to a nonsuit and appealed.
Graham for appellant.

1. A purchaser let into possession is not a tenant, but merely an occupant.Jones v. Taylor, 1 Dev., 434; at most he is a tenant at willstrictly, and so may be turned out at any time. 2 Bl. Com., 145-146, Sharswood's n., 10;Foust v. Trice, 8 Jon., 490.

2. In all cases where the six months' notice is not required, reasonable notice means time for the tenant to take his goods and depart.Jones v.Willis, 8 Jon., 430. Thespeedwith which persons in the case of Guess can take possession, is recognized in the doctrine that they are not entitled to receivers. Adams' Eq., 122; 1 Jac. Walk., 176, 627.

3. Here defendant waived right to notice,defyingthe vendor by reference to the stay law.Jones v. Willis, supra.
Phillips Battle, contra.
1. The notice was not sufficient.Love v. Edmonston, 1 Ire., 152; Leigh's N. P., 862;Lewis v. Beard, 13 E., 210.

1. The notice was defective as being in the alternative.Doe v. Jackson, Doug., 176; Adams on Eject., 164;Roberts v. Hayward, 14 Eng. C. L., 381.
BATTLE, J.
It is admitted that upon the facts stated in the plaintiff's bill of exceptions, his lessor had a right to demand the surrender of the possession of the land mentioned in the declaration, and that, upon the refusal of the defendants to comply with the demand, he might sustain an action of ejectment against them. The only disputed question, which has been brought to our attention in the (516) argument, is whether one day's notice to leave the possession is sufficient, and we are inclined to the opinion that it is not. We think that the occupier ought to have at least time enough to look out forPage 394another house and remove to it. It is difficult to say what precise number of days shall be allowed for the purpose, and we will not undertake to decide the question until a case shall arise to call for it. We may take it to be settled that three weeks is long enough because it was so held inLove v. Edmonston, 1 Ire., 152, and again inButner v. Chaffin, ante, 497; but as the present case must be decided against the plaintiff upon another ground, we shall decline the attempt to determine what time short of three weeks will be upheld as sufficient.

The ground upon which this case must turn is, that the demise in the declaration is stated to have been made on 1 August, 1866, which was twenty-seven days before the possession of the land was demanded of the defendants by the lessor of the plaintiff. In such case the action cannot be sustained as is clearly shown by the case ofCarson v. Baker, 4 Dev., 220, where the subject is fully discussed and explained, and the cases ofRight v. Read, 13 East., 210;Birch v. Wright, 1 Term Rep., 383; andDen v.Rawlings, 10 East., 267, are cited and relied upon in support of it. The judgment must be affirmed.

PER CURIAM. Judgment affirmed.

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