¶1The case requires us to determine the effect of a purchase at execution sale of the tenant’s interest under a statutory tenancy from month to month (R. S. 1889, sec. 6371) when the landlord resists such transfer to the purchaser.
¶2That an interest in land created by mere possession may, generally speaking, form the subject of a recovery in ejectment, will be assumed. But in applying' that *276rale to a case like this, regard must be had to the terms of positive law regulating assignments of such an interest in possession as is here involved.
¶3By our statute it is declared that “no tenant for a term not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or interest, or any part thereof, to another, without the written assent of the landlord.” R. S. 1889, sec. 6368.
¶4In this case the interest in dispute is a tenancy from month to month, and therefore included within the statute as a tenancy “for a term not exceeding two years.”
¶5To sanction a transfer, by means of legal process, of the tenant’s interest in such an estate, without assent of the landlord, would be to afford an easy mode of evading the plain meaning of the law.
¶6Had the landlord assented to the transfer, the case would be different. But he has not done so. He may, therefore, lawfully insist on holding the original tenant to the terms of the existing tenancy as defined by the statute governing it (R. S. 1889, sec. 6371). An execution purchaser from the tenant cannot deprive him of this right.
¶7The instruction given by the -court at plaintiff’s instance is not in accord with these views.
¶8It is therefore necessary to reverse the judgment and remand the cause which is accordingly done.