Opinion
No. 32223.
May 11, 1936.
1. LANDLORD AND TENANT.
Where tenancy, which had been held under definite, different contracts for 1933 and 1934, terminated on December 31, 1934, and proceeding was brought in January, 1935, after notice on January 9, 1935, to vacate, landlord's failure to give such notice before expiration of lease did not amount to waiver of right to possession; statute requiring two months' notice being inapplicable (Code 1930, secs. 2224, 2226).
2. LANDLORD AND TENANT.
Where tenancy of farm land for 1934 terminated on December 31, 1934, and proceeding was brought in January, 1935, after notice on January 9, 1935, to vacate, landlord was not entitled to apportionment of rent for hold-over period which terminated on March 9, 1935, based on 1934 rental (Code 1930, sec. 2226).
3. LANDLORD AND TENANT.
Subtenants, who held over under oral lease with tenant after termination of tenant's lease, were not liable to landlord for double rent, where landlord did not give such tenants notice to quit (Code 1930, secs. 2225, 2226).
4. APPEARANCE.
Judgment of county judge in ouster proceeding after termination of lease was not void on ground that county clerk filed all papers in proceeding and issued process, where defendants waived service of process and appeared before county judge by their answer and case was tried by agreement of all parties thereto (Code 1930, sec. 2226).
APPEAL from circuit court of Coahoma county. HON. WM. A. ALCORN, Judge.
John W. Crisler, of Clarksdale, and L. Barrett Jones, of Jackson, for appellants.
The court erred in rendering final judgment on the merits of the cause for the reason that it was without jurisdiction because no affidavits, or pleadings of any kind were filed with the county judge as required by the statutes.
Section 2228, Code of 1930.
The sworn complaint must be filed with the county judge and not with the county clerk.
Section 2231, Code of 1930.
Graham held under tenancy from year to year. This case insofar as the year 1934 is concerned is identical with the case of Usher v. Moss, 50 Miss. 208, with the single exception that in the cited case there was a written lease for the year 1871 and in the case at bar there was an oral lease for 1934, the executing of the rent note for that year not constituting a written contract under the authority of Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003.
We say, therefore, under authority of this case, that at the beginning of 1934 a tenancy from year to year was created. Hence, under section 2224 of the Code of 1930 two months notice to the tenant to vacate was required.
The plaintiff says the terms were not agreed upon for 1935. This was not necessary, for the reason that the same terms are carried forward into the new year.
Love v. Law, 57 Miss. 596; Bancroft v. Seashore Camp Ground School, 120 Miss. 446, 82 So. 314.
Where the tenant continues to occupy and enters upon another year without objection from the landlord, and with his silence or tacit consent or approval, a tenancy for another year is thus created, and cannot be terminated in the middle of the term, and in the midst of the crop, but only at the end of the year.
Usher v. Moss, 50 Miss. 208; Richardson v. Neblett, 122 Miss. 723, 84 So. 695.
Where a term for a fixed period is created by a lease, a provision for the termination of the lease upon an event which may or may not happen before the expiration of the period specified will not prevent the creation of a valid term for years.
35 C.J. 972 and 1054, sec. 216.
The object in construing a lease is to ascertain and give effect to the intention of the parties, without regard to the refinements of technical distinctions, insofar as that may be done without contravention of legal principles. The intention of the parties is to be gathered from the words which have been employed in connection with the subject matter, the object and purpose of the lease, and the surrounding circumstances. Such intention is to be gathered from the whole instrument rather than from a single clause thereof. Greater regard is to be had to the clear intention of the parties than to any particular words which they have used in the expression of their intention. A lease must be construed with reference to the intention of the parties at the time it is made.
35 C.J. 1175, sec. 461 and 1198, sec. 512; Hancock County v. Naval Stores, 93 Miss. 822, 47 So. 177; 12 Am. Eng. Encyc. of Law, page 976.
Taking the testimony as a whole and considering the purpose in the mind of Graham at the time of his conversation it is clear that an oral lease was given him by Montgomery with the reservation of right to sell the land and give the purchasers possession. Surely in the face of this testimony, the court could not hold as a matter of law that there was not sufficient evidence for submission of the question of a lease to the jury.
Montgomery's authority has been amply shown.
2 C.J. 435, sec. 32; Barton Parker Mfg. Co. v. Moore, 111 Miss. 662, 71 So. 909; Meyers Construction Co. v. Batson, 156 Miss. 689, 126 So. 824.
We submit that under the law and the evidence B.B. Montgomery was fully authorized to rent this land for the year 1935 and that a valid and binding lease contract was given by him to H.C. Graham.
Judgment against subtenants is not authorized.
There is no privity of contract between the landlord and a sub-tenant.
Ashley v. Young, 79 Miss. 129, 29 So. 822; Bowles v. Dean, 84 Miss. 376, 36 So. 391.
This being true, the landlord has no right of action against subtenant in a landlord and tenant removal proceeding.
As to the judgment for double rent, this finds no basis in section 2225 of the 1930 Code which authorizes the assessment of double rent against the tenant, after being lawfully notified by the landlord to vacate. In this case there was no attempt to give a notice to the subtenants, consequently under no view could liability for double rent apply to them.
G. Edward Williams, of Clarksdale, for appellee.
The question which the two lower courts had presented for decision was whether or not the appellants proved the existence of a lease contract between themselves and the Land Bank for the year 1935. It might be said that the above represents the sole question of fact determined by the two courts. Neither hesitated in finding that there was no lease contract between the appellants and the Land Bank for that year.
There is nothing in the testimony by which it would be possible to say a rental contract for the year 1935 was entered into between the Land Bank and the appellants herein or any of them.
What took place between appellants and the representative of the Land Bank not only did not amount to a lease of the premises for the year 1935, but could not be said to amount to an executory contract to lease. Neither party was bound. If appellants had desired to leave the premises on January 1st there was nothing in the mere conversation which took place in November, 1934, between Graham and Montgomery which could have held them back or rendered them liable for 1935 rent.
Copiah Hardware Co. v. Johnson, 135 Miss. 358, 100 So. 31; Field v. Newburn, 91 Miss. 863; Thomas Hines Lodge v. Church, 103 Miss. 130, 60 So. 66.
Taking as a fact, and without considering the question of the authority of Montgomery as the agent of the Land Bank, that he told Graham in November, 1934, if he didn't sell it he would rent the land to him, such statement certainly does not constitute a binding lease contract whereby the landlord was bound to keep the parties in possession, and whereby the parties were bound to pay rent.
It is urged by counsel that the county judge in trying the case in the first instance was without jurisdiction because of the fact that no affidavit or pleadings of any kind was filed with him. We think it sufficient to say that the case was tried by the county judge by agreement of the parties as is shown by the record. The verified declaration is marked filed by the clerk of the county court. The question of the propriety of the issuance of the summon by the clerk of the court instead of by the county judge, need not be discussed, we think, because the defendants entered their appearance, not only by accepting service of the summon, but also afterwards by interposing an answer, and then afterwards by going to trial before the county judge by agreement, as is shown by the judgment.
It is further contended by counsel for appellant that the amount of rent due for the time the appellants held possession of the lands during 1935 was not established. In answer to this contention it seems to us sufficient to say that the testimony of the principal defendant is enough basis for the judgment rendered so far as rent is concerned.
It is further contended that as to the same two appellants, they should not have been subjected to the payment of double rent, because no notice to vacate was given them. As between themselves, it may be that they had planned to occupy the relation of tenant and subtenants, or had agreed to divide the land between themselves. So far as this appellee was concerned these three parties were withholding from him the possession of the tract of land. The record shows they had banded together to keep appellee out of possession. They were, as to him, cotenants at sufferance. Notice to one of them was sufficient.
16 R.C.L. 1167; Smith v. Craig, 10 S. M. 440, 447.
Argued orally by L. Barrett Jones, for appellant.
We do not deem a detailed statement of the facts of this case necessary.
The proceeding was brought under section 2226, Code 1930, before the judge of the county court by appellee, as the lessee of Federal Land Bank, against Graham, and the subtenants of Graham, Arnold Burns and George Graham, to evict them from the lands in controversy.
On the issue of right to possession of lands, the court below was not in error in granting appellee a peremptory instruction, as appellant was not entitled to notice to quit for the reason that he testified that his term ended, for the year 1934, on December 31, 1934. The proceeding to oust him having been begun in January, 1935, after notice to vacate, was served by appellee on the appellant Henry Graham on January 9, 1935.
The record further shows that Henry Graham leased the place for the year 1933, he to pay a part of the crop as rent therefor. He made a new contract for the year 1934, by which he agreed to pay a fixed rental, and gave his note therefor. The copy of the note is not in this record.
The record further shows that appellant Henry Graham undertook to make a new contract, orally, for the year 1935, during the month of November, 1934. This conversation did not constitute a new contract, as the parties came to no enforceable agreement, even according to Graham's version, and that version is contradicted.
In that situation it cannot be said that appellee's lessor tacitly allowed Henry Graham to hold over as a tenant from year to year. The appellee did not waive his right to have possession, because he did not notify Henry Graham to vacate until January 9, 1935. Nine days was not an unreasonable length of time for a landlord to allow his tenant to remove from the premises.
The evidence here shows that the tenant held under definite, different contracts for the years 1933 and 1934, and, in addition, so admitted by seeking to enter into another contract for the year 1935, which, as we said, he did not consummate.
The facts of the case do not bring it within the statute (sec. 2224) requiring two months' notice. Nor are the cases of Usher v. Moss, 50 Miss. 208; Love v. Law, 57 Miss. 596; Wilson v. Wood, 84 Miss. 728, 36 So. 609; Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003; Richardson v. Neblett, 122 Miss. 723, 84 So. 695, 10 A.L.R. 272; and Buster Hamilton v. Federal Land Bank (Miss.), 167 So. 642, decided April 27, 1936, in apposition thereto.
The court in this case erred in peremptorily instructing the jury that rents could be apportioned for the time January 9, 1935, to March 9, 1935, based upon the rental paid or agreed to be paid by George Graham, one thousand one hundred twenty-five dollars, for the year 1934. It does not follow at all that the rent of farm lands for the period here involved would be proportionate to the rental value thereof for an entire year.
As to the subtenants, Arnold Burns and George Graham, who undertook to hold as such by virtue of an oral lease or contract for the year entered into by them with Henry Graham, there could be no liability for double rent by them unless lawful notice had been served on each of them by the landlord to quit the premises. No notice was served George Graham or Burns. Section 2225, Code 1930. The penalty imposed by the statute is for a failure to comply with the notice therein required.
It is contended that because the clerk of the county court filed all papers, including answer of appellants, and issued the process, instead of the county judge, therefore, the judgment of that court was void; the statutes vesting jurisdiction in this behalf in the county judge and not in the county court. On appeal that question was not raised in the circuit court, and is urged here for the first time. The obvious answer to this contention is that in the court of the county judge the appellants waived the service of process upon them, and all of them appeared before the county judge by their answer; and the judgment shows that the case was tried by him on the agreement of all parties. In that situation, the county judge had jurisdiction of the subject-matter by force of the statute and of the person by appearance and agreement. There is no merit in this contention.
As to all the appellants, there was an erroneous judgment of the amount of rents due by them for the period of time involved, and the subtenants are not liable for double rents.
As to the eviction of appellants, the judgment of the court below is affirmed. As to the rents, the case is reversed and remanded for a trial on that issue as to all the appellants.
Affirmed in part; reversed and remanded in part.