Opinion
December 13, 1948.
1. Landlord and tenant — tenant holding over — double rent.
The double rent provided for by statute against a tenant holding over is double the rent which he should otherwise have paid. Section 947, Code 1942.
2. Unlawful entry and detainer — double rent.
In an action of unlawful entry and detainer, double rent is recoverable. Sections 947, 1054, Code 1942.
3. Landlord and tenant — double rent — evidence.
The double rent provided for by section 947, Code 1942, against a tenant holding over after notice to quit, is not recoverable upon vague and inconclusive evidence of the amount to be allowed.
Headnotes as revised by Alexander, J.
APPEAL from the circuit court Quitman County; E.H. GREEN, J.
T.N. Gore, for appellants.
It is our contention in this case that facts did not justify the court in finding for the appellee. There was a tenancy for a year, and it could not be terminated in the manner used by the appellee in terminating this one. There was no proof of any more than nominal damages, even if the court correctly decided the issue of the right of possession. It is true that the witness Captain Johnson gave some testimony as to being deprived of the possession of the house. He did not testify, however, that the reasonable rent for the house was Forty Dollars ($40.00) per month. He testified "we paid $40.00 per month for a house," but he did not testify that he rented a house in lieu of this house, his reference to their paying this rent being related to a house in Helena. On cross-examination, he testified that he had not paid out anything for a house to be used in lieu of this one, simply saying that he lost a manager. The testimony with reference to damages caused by the holding over of Burr is vague and not definite in amount, and the loss of a manager is simply a reference to unliquidated damages which conceivably could have been recovered in another suit.
In this State we have two chapters in our Code providing for removals from land. One is Chapter 3, the Landlord and Tenant Statute. I call the court's attention to Sections 946 and 947 of the Code of 1942, Sec. 946 providing notice to terminate a tenancy and section 947 providing for double rent against a tenant holding over after notice.
Before this double rent can be awarded there must have been a written notice to terminate the tenancy, and a time appointed in the notice, before the double rent can be awarded to the landlord, and the amount doubled is "the rent which he (the tenant) should otherwise have paid." In this case there was no stipulated rent to be paid by the tenant under the contract. There is therefore nothing to be doubled within the meaning of this statute.
The other removal statute that we have in this State is Chapter 9 of the Code of 1942, being the one on Unlawful Entry and Detainer. The applicable parts of this statute are sections 1041, 1042 and 1043, the first two being with reference to the organization of the court and the trial. Section 1043 providing what may be recovery, and it merely provides for rent in arrears or reasonable compensation, and not for doubling any rent or compensation.
The Unlawful Entry and Detainer statute supplants the common law remedy of forcible entry and detainer in our State. Being in derogation of the common law, it will be strictly construed. In common law no damages could be recovered in an action of forcible entry and detainer. None could be recovered in Mississippi but for this statute, section 1043. I cite Spear v. Lumber Co., 108 So. 746. Also Hill Company v. Taylor, 174 So. 481. Statutes providing for double rent or double damages, in addition to being in derogation of the common law, are highly penal, and are subject to strict construction. In this connection I cite 36 C.J.S. p. 1199, Sec. 60. This principle of law is so well settled that it is hardly necessary to do more than call attention to the principle.
I am not unmindful of the decisions of this court in 26 So.2d 540 and 24 So.2d 319 and 23 So.2d 915. The facts in these cases either are not like the facts in this case, or they are not well considered cases. The only authority cited to sustain the holding in Ellison v. Laudry, 24 So.2d 319, is the case of Weatherall v. Brown, 74 So. 765, and this was a proceeding in attachment for rent under the Landlord and Tenant Statute, and was not a proceeding in Unlawful Entry and Detainer. In that case, a tenant was holding over while rent was in arrears and after a written notice to quit. I find that no case in all of the books available to me, where it is held that double rent or damages may be recovered in Unlawful Entry and Detainer proceedings, except in those jurisdictions where the Unlawful Entry and Detainer statute itself provides for such recovery. The only way that it could be held that double rent or double damages could be recovered in Mississippi would be to transpose section 947 of the Landord and Tenant statute and put it in the place of section 1043 of the Unlawful Entry and Detainer statute. I therefore urge that the cases above referred to indicating that double rent or damages may be recovered in Unlawful Entry and Detainer should be reconsidered and clarified. These two chapters are separate statutes, and it certainly cannot be said that there was any intention on the part of the Legislature that they should be construed together or that a section of one of the statutes should be interchanged for a section of the other. I submit that the reasons for awarding double damages or double rent which the Legislature intended to be applied in proper cases as in section 947, do not exist in the case.
E.C. Black, for appellee.
I think the proof clearly shows that appellant quit his job and that the court was correct in so finding. If Captain Johnson had not understood that Burr quit his job he could have discharged him because the evidence clearly shows that Burr was incompetent, inefficient and not capable of handling the labor and making a crop and if Captain Johnson had not understood that Burr quit his job, he would have discharged him and relied on the discharge rather than on the fact that Burr quit, but Captain Johnson insisted that Burr quit and was not fired by him, but if Burr was fired, as contended by appellants, he was not entitled to the possession of the premises after he received the letter from Captain Johnson on April 21 shown at Record page 9 and Burr recognized the fact that he was not entitled to possession longer as he testified that he had tried to find another job.
If appellant was discharged, as he claims, he had no right to hold the possession of the premises after his discharge but his remedy, if any he had, was a suit for damages for the breach of the contract and he did not think enough of his rights under the contract to file such a suit.
Section 1043 Mississippi Code 1942 authorizes the court, on the trial of unlawful Entry and Detainer, to hear evidence on the amount due for rent in arrears or for reasonable compensation for the use and occupancy and to render judgment for such compensation as may be established by the evidence.
Section 947 Mississippi Code 1942 authorizes the collection of double rent for holding over after notice or after the tenant shall give notice of his intention to quit, which may be sued for, and recovered as the single rent before the giving of the notice, therefore there is no question but that the court had the right to hear the evidence and to render such judgment as from the evidence appellee was entitled to recover under her notice.
Double rent or damages may be recovered in an action of unlawful Entry and Detainer. Sections 947, 948, and 1043 and 1054 Mississippi Code 1942; Ellison v. Landry, et al, 24 So.2d 319; Stewart v. Miller, 26 So.2d 540.
The liability of a tenant for double rent, for holding over is absolute. Weatherall v. Brown, 113 Miss. 887, 74 So. 765.
Although computed upon the basis or rent, it is not rent, but is a penalty.
The additional burden imposed on the tenant is a penalty and he is not chargeable for his occupancy, but for his obstinancy. Sherrill v. Stewart, 199 Miss. 216, 23 So. (2) 915; Stovall v. Gardner, 36 So.2d 164.
I have not discussed the case of Spears v. Lumber Company, 108 So. 746 and Hill v. Taylor, 174 So. 481, cited by appellants, as they are Alabama cases and it is unnecessary to cite and discuss cases from other states when our court has passed upon and decided the question involved.
I submit that the proof sustains the holding of the court in awarding the possession of the property to appellee and that appellee was entitled to double rent or damages from April 21, 1947, claimed in her notice.
I think it is clear from the evidence that Burr quit his job on April 7, but agreed to continue on the job for one week and did continue on the job, although he rendered poor service, until April 21, on which date he was relieved by Mr. Nelson and requested by Captain Johnson to vacate the premises.
Appellant did not appeal from the judgment awarding possession, but vacated the premises a short time after the judgment in the circuit court, therefore no claim is being made for rent or damage for use and occupancy after the trial of this case in the lower court.
This is an unlawful entry and detainer proceeding instituted by appellee against appellant, who is treated throughout the record as her tenant. The cause was appealed from the court of a justice of the peace, and heard by the circuit judge who awarded judgment for the landlord, together with double rent during the stated period. Such damages were computed upon a base rental of $40 per month. Judgment ran against the sureties upon the appeal bond to the extent of such undertaking. Burr, only, appeals.
Although it is disclosed that after the jdgment in the circuit court, the tenant quit the premises and the issue of possession is now moot, yet we must retain the trial judge's finding thereon in favor of the landlord as a basis for further consideration of the matter of damages.
(Hn 1) Double rent, as allowed by Code 1942, Sec. 947, which provides for damages against a tenant holding over in "double the rent which he should otherwise have paid."; and of Sec. 1054 which provides that the judge shall find "upon the evidence the arrears of rent or reasonable compensation," (Hn 2) are applicable to suits in unlawful entry and detainer actions. Ellison v. Landry, 199 Miss. 161, 24 So.2d 319; Stewart v. Miller, 200 Miss. 188, 26 So.2d 540.
The only testimony on the issue was that given by appellee's husband, who acted as farm manager. It was as follows:
"Q. Captain, what is the reasonable rental value of that house up there, that he is living in? A. Well, we paid around forty dollars a month for a house.
"Q. What size house is it, how many rooms? A. Three bedrooms, living room, dining room, kitchen, hall, and bath, front and back porch.
"Q. And he has been keeping it since Mr. Nelson went over there, on the 21st of April? A. Yes, sir."
Upon being recalled upon cross-examination, the witness gave the following replies to questions propounded: "Captain, you testified about the rental value of this house up there. Are there any plantation houses rented around there, situated like this one is? A. No, sir.
"Q. The only use that you have for that house is in connection with the operation of your place? A. How is that?
"Q. The only use you have for that house — country property — you use it simply in connection with the operation of your place? A. That is right.
"Q. How much have you been out, by reason of Mr. Burr's being in your house? A. I don't know I haven't been in it.
"Q. How much money have you had to pay out, on account of his occupancy of the house, during this time?
A. I could not say that; I haven't been in it.
"Q. Well, you know whether you have expended any money? A. I haven't spent anything at all.
"Q. As far as Mr. Burr's staying in the house, it has not cost you any money? A. Not out of my pocket.
"Q. Has it cost you anything out of anybody's pocket? A. Not yet.
"Q. Do have any definite account? A. No, sir."
(Hn 3) Such testimony was too vague to serve as a basis for imposition of damages at the rate of $80 per month, especially in view of the penal nature of such award.
The cause will be reversed and remanded for an award of either nominal damages or such as may be supported by proper and adequate testimony.
Reversed and remanded.
ON SUGGESTION OF ERROR In Banc. Jan. 24, 1949. ( 38 So.2d 314)
This cause was reversed and remanded by this Court on December 13, 1948. Appellee has filed a suggestion of error which we have carefully examined and considered. Finding no error in our opinion regarding the matters raised in this suggestion of error it is overruled.
The appellant also filed a suggestion of error, among other things, alleging that we erred in holding, by inference, that the appellant, Burr, may be held liable on another trial for the payment of double rent. We do not construe the opinion as necessarily so holding. We merely held that the testimony was too vague to serve as a basis for imposition of damages at the rate of $80.00 per month, especially in view of the penal nature of such award and we reversed and remanded the case for an award of such damages as may be supported by proper and adequate testimony. We construe the opinion as submitting to the lower court the award of proper damages on another hearing and the determination, upon the facts then presented, of the question whether this is a proper case for awarding double rent as damages. Appellant's suggestion of error will be overruled.
Suggestions of error overruled.