Murrill v. . Palmer

Hoke, J. It is a principle fully recognized, and not infrequently applied in this State, that when a tenant for a year or a longer time holds over and is recognized as tenant by the landlord, without further agreement or other qualifying facts or circumstances, he becomes tenant from year to year, and subject to the payment of the rent and other stipulations of the lease as far as the same may be applied to existent conditions. Holton v. Andrews, 151 N. C., 340; Harty v. Harris, 120 N. C., 408; Scheelky v. Koch, 119 N. C., 80; Steadman v. McIntosh, 26 N. C., 291; McAdam Landlord and Tenant (3d Ed.), sec. 32 et seq.; Taylor on Landlord and Tenant (9th Ed.), sec. 525. *54 Tbe position, in tbe first instance, is at tbe option of tbe landlord. He may treat bis tenant, wbo bolds over, as a trespasser, and eject bim,, or be may recognize bim as tenant; but wben sucb recognition bas been made, a presumption arises of a tenancy from year to year, and as stated, under tbe terms and stipulations of tbe lease as far as tbe same may apply. Tbis is a rebuttable presumption, wbicb may be overcome by proper and sufficient proof.. Wben there is testimony permitting- the inquiry, it is usually a question of intent — an intent, however, wbicb under some circumstances may be inferred from conduct, and in direct opposition to tbe express declaration of one or tbe other of tbe parties. Thus in McAdam, supra, p. 83, it is said: “Notifying tbe landlord that tbe tenant does not intend to renew tbe lease is ineffectual if tbe tenant wrongfully bolds over, for the intent is inferred from the act, and it is tbis that gives tbe landlord tbe right to treat bim as a tenant for a renewed term.” In further illustration of these general principles, there are decided cases to tbe effect that the- presumption in question shall not prevail where it is made to appear that wben tbe term closed tbe parties were negotiating for a renewal or change of tbe lease, and tbe tenant remained in possession with the acquiescence of tbe landlord till tbe matter was determined. Montgomery v. Willis, 45 Neb., 434; Smith v. Aldt, 7 Daly, p. 492; Schilling v. Klein, 41 Ill. App. Court, p. 209. Again it bas been properly held that there shall be no wrongful bolding over within tbe meaning of tbe principle wben tbe tenant has'been compelled to continue bis occupation of necessity; for instance, wben be bas remained in possession solely by reason of tbe sickness of tbe tenant or some member of bis family and off sucb a character that removal could not be presently made without serious danger to the patient. Hester v. Mullen, 159 N. Y., 28. There is also a decision in tbe State to tbe effect that tbe right of tbe landlord to- insist on a tenancy from year to year may be waived, and should be held waived, wben after'the term bad expired tbe landlord made certain propositions to tbe tenant for a further renting and agreed to give tbe tenant time to con *55 sider them, and later, having made peremptory demand for a. sum certain for a renewal, withdrawing all other propositions, the tenant thereupon rejected the last proposition and at once vacated the premises. Drake v. Wilhelm, 109 N. C., 97. But none of the conditions suggested are presented in this case. On the contrary, a perusal of the facts agreed upon will disclose that defendant rented the dwelling-house of plaintiff for two years from 1 April, 1909, at $500 per annum, the rent payable at $41.67 per month in advance; that at the end of the term the defendant held over without further agreement, and paid the rent for the first month. That on 30th May plaintiff wrote to defendant, “That he would like to renew the lease for the remainder of the.twelve months,” and demanding a higher rent. Defendant answered, declining to pay more, and offering to take the property for twelve months at same rate, inclosing check at that rate for the' month of May, and as the case agreed then states it, “That nothing came of this correspondence.” That defendant continued in possession of the premises during that year, 1911, paying the rent at the old rate at the end of each month, and on into the second year, until 28 September, 1912, when he gave plaintiff written notice and vacated the premises on 30 October, 1912, and plaintiff, using due diligence, was left without a tenant for three months. At the time when the former lease expired there was no treaty pending for renewal. When plaintiff made his demand for a higher rent, the defendant did not accept plaintifE’s position in reference to the tenure and vacate the premises. He continued in possession, paying rent at the old rate, and in our opinion there is nothing to prevent the operation of the principle usually obtaining in such cases, and that plaintiff had the right to consider and hold defendant as tenant from year to year. It was urged for defendant that the question is one of intent, which was left for the judge to find, and that his Honor has found as a fact that the intent was for defendant to occupy the premises as tenant at will; but we do not S0‘ interpret the action of his Honor. There is no additional finding of fact by him, but on the facts as presented he adjudges as a conclusion of law *56 tbat defendant occupied tbe property- as tenant at will. Tbe defendant, after vacating tbe premises, seems to bave acted yery well in tbe matter, and to bavé done wbat be could to aid plaintiff in obtaining a new tenant, and be no do.ubt bas acted in good faitb; but in our .opinion' be vacated tbe premises in breach of bis tenure as tenant from year to year, and plaintiff bas tbe right to recover tbe damages suffered by reason of tbe premises being without a tenant. On tbe facts stated, the plaintiff is entitled to judgment for loss of rents,, and this will be certified, tbat such judgment may ■be entered. Reversed.