¶1The defendant, after the expiration of the term for which the land was demised to him by the written lease, became a tenant at will of the plaintiff. This tenancy was not determined by the taking of a part of the land by the city of Boston, for the city thereby took an easement only, and not the fee, and the defendant was not evicted from any part of the land.
¶2The conveyance of a part of the land in fee by the plaintiff to the city of Boston determined the tenancy at will. McFarland v. Chase, 7 Gray, 462
¶3The tenant is not estopped to deny that,' since his own entry into possession, his landlord’s title has been determined by the act of the landlord. Hilbourn v. Fogg, 99 Mass. 11. Lamson v. Clarkson, 113 Mass. 348.
¶4The plaintiff cannot recover of the defendant rent from January 1 to January 23, 1880, when the conveyance to the city was made. She cannot recover it of the defendant as tenant at will, because she has determined this tenancy between two rent days, and the rent cannot be apportioned. Fuller v. Swett, 6 Allen, 219, note. Dexter v. Phillips, 121 Mass. 178. She cannot recover it of the defendant as tenant at sufferance, because during that time the defendant was tenant at will. Nicholson v. Munigle, 6 Allen, 215. This case is not within the St. of 1869, e. 368.
¶5If the conveyance to the city had been of the whole land, the defendant after the conveyance would be liable for rent to the city under the Gen. Sts. c. 90, § 25, as tenant at sufferance. Bunton v. Richardson, 10 Allen, 260.
¶6As the conveyance of a part of the land to the city must be held to have determined the tenancy at will as to the whole land, it is in accordance with the principles of law to hold that, after such a conveyance and before entry by the plaintiff, the defendant is a tenant at sufferance of the plaintiff of the portion of the *349land remaining to the plaintiff. He cánnot be a tenant at will of the plaintiff of that portion, because there never has been any agreement express or implied on the part of the plaintiff to let, and on the part of the defendant to hire, that portion of the land. Edwards v. Hale, 9 Allen, 462, 464.
¶7The defendant cannot well be considered a trespasser merely from holding over after the determination of the tenancy at will by the plaintiff, for he came into possession by right.
¶8We think that the defendant as tenant at sufferance is liable, under the Gen. Sts. c. 90, § 25, to pay rent to the plaintiff from January 23, 1880, for the use and occupation of the portion of the land owned by the plaintiff after that time.
¶9The amount of rent to be paid is not to be determined by “ the proportion which such unconveyed portion bore to the whole estate,” but is the sum which the jury find the use and occupation of that portion for that time were reasonably worth. As the justice who tried the cause instructed the jury to find according to such a proportion, and for the whole month of January as well as February and March, and not from January 23, the verdict must be set aside; and, as the terms of the report do not enable us to enter any judgment in accordance with our views of the law, there must be a New trial ordered.