Since the presumption of a new tenancy from year to year rests upon an implied in tention of the parties, if, after or prior to the termination of the lease, the landlord demands greater rent, and the tenant holds over without reply, he is presumed to have assented to pay the advanced rental ; Hunt v. Bailey, 39 Mo. 257; Roberta v. Hayward, 3 C. & P. 432; and he will be liable for it until such agreement is modified by, some other one; Moore v. Harter, 67 Ohio St. 250, 65 N. E. 883 ; Thompson v. Sanborn, 52 Mich. 141, 17 N. W, 730; and the same result is reached if the tenant protest that he is only remaining until he secures another place; Brinkley v. Walcott, 10 Heisk. (Tenn.) 22. In such case the original lease has expired and the tenant could not be sued for the breach of any covenant in it ; Monck v. Geekle, 9 Ad. & El. 841. The presumption of holding over upon the terms of the original lease is not rebutted by proof of a different intention on the part of the tenant which is not communicated to the landloid and as sented to by him ; City of Chicago v. Peck, 196 Ill. 260, 63 N. E. 711, affirming 98 Ill. App. 434 ; nor is the presumption rebutted where the holding over is caused by action of the board of health in the regulation of persons ill with a contagious disease; Haynes v. Aldrich, 133 N. Y. 287, 31 N. E. 94, 28 Am.
St. Rep. 636; Herter v. Mullen, 9 App. Div. 593, 41 N. Y. Supp. 708.
The payment of money, however, is only a prima facie acknowledgment of the ex istence of a tenancy ; for if it does not ap pear to have been paid as rent, but has been paid by mistake or stands upon some other consideration, it will not be evidence of a subsisting tenancy ; 3 B. & C. 413; 4 M. & G. 143. Neither does a mere participation in the profits of land, where the owner is not excluded from possession, nor the letting of land upon shares, unless the occupant ex pressly agrees to pay a certain part of the crop as rent, in either case amount to a tenancy ; Hoskins v. Rhodes, 1 Gill & J. (Md.) 266 ; Fry v. Jones, 2 Rawle (Pa.) 11; Warner v. Hoisington, 42 Vt. 94; Kerrains v. People, 60 N. Y. 221, 19 Am. Rep. 158; Al wood v. Ruckman, 21 Ill. 200. The relation, of landlord and tenant did not exist where the occupancy was simply by military force during the war of the rebellion; Madison Female Institute v. U. S., 23 Ct. CL 188.
But the relation of landlord and tenant will not be implied when the acts and con duct of the parties are inconsistent with its existence, as where a railroad company en tered upon the land of a ferry company un der a contract permitting its use and occupa tion for the purposes of its business; Wig gins Ferry Co. v. R. Co., 142 U. S. 396, 12 Sup. Ct. 188, 35 L. Ed. 1055 ; or where the relation of vendor and purchaser exists and the latter remains in possession after the agreement fails ; White v. Livingston, 10
Cush. (Mass.) 259; Henry v. Perry, 110 Ga. ,630," M S. E. 87 ; ' Brown v. Randolph, 26 Tex. Civ. App. 66, 62 S. W. 981; Ripley v. Yale, 16 Vt. 257 ; Ayer v. Hawkes, 11 N. H. 148; Ball v. Cullimore, 2 Cr., M. & R 120; Carpenter v. U. S., 17 Wall. (U. S.) 489, 21 L. Ed. 680; Fall v. Hazelrigg, 45 Ind. 576, 15 Am. Rep. 278 ; even where a note is given for an installment of the purchase money reciting that it is in part payment for rent; Quertermous v. Hatfield, 54 Ark. 16, 14 S. W.1096; but an occupation under an agree ment for sale if a title could be made creates a tenancy ; Doe dem. Newby v. Jackson, 2 D. & R. 514 ; but if, under an absolute agree ment for sale, the fails to make a good title, the vendee, being in possession un der the contract, is not liable as a tenant; Winterbottom v. Ingham, 7 Q. B. 611; Garvin v, lennerson, 20 Kan. 371; Bardsley's Ap peal, 4 Sadl. (Pa.) 584, 10 Atl. 39; Griffith v. Collins, 116 Ga. 420, 42 S. E. 743.
Where the vendee refused to surrender the title bond and the vendor retained the notes for the purchase money, proof that the for mer had agreed to pay rent was not alone evidence of abandonment, but that question was for the jury ; Taylor v. Taylor, 112 N. C. 27, 16 S. E. 924 ; and the vendee becomes a tenant on his refusal to pay installments as due because of the vendor's inability to make title ; Sievers v. Brown, 36 Or. 218, 56 Pac. 171; nor is a tenancy implied as be tween mortgagor and mortgagee in posses sion, or an assignee of the latter ; Way v. Raymond, 16 Vt. 371; Hobbs v. Ontario) Loan & Deb. Co., 18 Can. St. 483 (although in that case the mortgage contained a clause for a lease from the mortgagee to the mort gagor, the rent to correspond with the in stallments of purchase money, but the in strument was not executed by the mort gagee) ; Wood v. Felton, 9 Pick. (Mass.) 171; nor where the mortgagee gave notice to the tenant to pay the rent to him and the tenant remained in possessioU; Towerson v. Jackson, L. R. 2 Q. B. Div. 484 (C. A.) ; nor when the mortgagor is in possession and agrees to pay $300 a year for interest and part principal which is called rent ; Sadler v. Jefferson, 143 Ala. 669, 39 South. 380.
Where the statute requires the recording of leases, one in possession of real estate un der an unrecorded lease has no rights as against an attaching creditor ; Flower v. Pearce, 45 La. Ann. 853, 13 South. 150.
One who takes a secret lease from a third party without the knowledge of his landlord will not thereby change his possession ; Voss v. King, 33 W. Va. 236, 10 S. E. 402.