McDevitt v. Lambert

STONE, C. J. McDevitt and wife let the premises in controversy to Lamberts, by a definite contract of lease for two years, to expire the last day of February, 1882. The agreed rental was payable monthly. The lease contained this further clause: “It is also agreed, that in case the party of the first part does not dispose of the property, at the time of expiration of lease, the party of the second part may continue to occupy by the month, by complying with the above agreement.” There being, under this agreement, no binding obligation resting on Lamberts to continue the tenancy any longer than they chose, after March 1, 1882 — a mere privilege — the lessors were armed with an equal right- to terminate it, whenever they elected to do so. One contracting party not being bound for any definite term, the law secures to the other the same privilege of putting an end to the tenancy, with or without a reason. And from and after the end of the two years — February 28, 1882 — the relation of the parties became that of a tánancy by the month, which either the landlord or tenant could put an end to by giving reasonable notice. — 1 Coke Inst. 55 a; Cheever v. Pearson, 16 Pick. 266; Doe v. Richards, 4 Ind. 374; 1 Washb. Real Prop. *371; 1 Greenl. Crusie *243; Jackson v. Deyo, 1 Johns. 417; Phillips v. Covert, 7 Johns. 1; 4 Kent Com. *112; Collins v. Johnson, 57 Ala. 304; Taylor Landlord & Tenant, 7th ed. § 466; Anderson v. Prindle, 23 Wend. 616; Cook v. Cook, 28 Ala. 660. The plaintiff offered to prove that, about the twentieth of [539] March, 1882, he served a written notice on defendants to quit the possession of the premises on the last day of that month. The purpose of this notice was to terminate the tenancy with that month. This testimony was objected to by the defendants, on the express ground that “the proof showed that the notice was given before the lease had expired, and while the defendants had the lawful right to retain possession of the premises sued for.” The ground of objection being specified, this was a waiver of all objections, if any existed. — 1 Brick. Dig. 887 § 1194; Alexander v. Wheeler, 78 Ala. 167. After February 28, 1882, — the termination of the two years for which the lease makes absolute provision — the tenants were not, by mere force of the contract under which they entered, tort-feasors, or tenants holding over. They were, by the very letter of their contract, in rightful possession as tenants from month to month. This tenancy, as we have seen, either party could put an end to by giving proper notice. What is reasonable or proper notice in such conditions? We have, in this State, no statute bearing on the question, and the contract of lease under which defendants entered is silent on the subject. Speaking of what is reasonable notice in such cases, Washburn, Vol. 1, Beal Prop. *380, says : “It is generally true that it will be sufficient if it be equal to the interval between the times of payment of rent, or the length of time by which the letting was first measured, as by the quarter, month, or week.” This principle is supported by the following authorities, while we find nothing opposed to it.- — -Taylor, Land! & Ten. §§ 466, 7; Wade on Notice § 611; Doe v. Hazell, 1 Esp. 94; Right v. Darby, 1 T. R. 162; Doe v. Raffan, 6 Esp. 4; Doe v. Scott, 6 Bing. 362; Prindle v. Anderson, 19 Wend. 321; s. c., 23 ld. 616; Greene v. Sinclair, 52 Mo. 327; Walker v. Sharpe, 14 Allen 43; Pickett v. Ritter, 16 Ill. 96; Warner v. Hale, 65 Ill. 385; Huyser v. Chase, 13 Mich. 152; Woodrow v. Michael, lb. 190; Logan v. Herron, 8 Serg. & R. 459; Caffin v. Lant, 2 Pick. 70. We feel bound to hold that a month’s notice should have been given in this case to terminate the lease. The present suit is unlawful detainer, commenced April 1, 1882, — the day succeeding the one fixed by the notice as the termination of the lease. The notice, according to the only testimony bearing on the question, had been given about ten days before that time; much less than a month, the time required by the rule. The testimony offered and rejected did not tend to prove a termination of the lease, so as to uphold the present suit. And as that was the only purpose for which it could have been legal evidence, if the Circuit Court erred in rejecting it on the ground stated, it was error without injury. Testimony which does not tend to prove any material fact in [540] volved in the issue, is irrelevant, and should not be admitted. And if admitted, the court commits no error by subsequently ruling it out. — 1 Brick. Dig. 109 §§ 79, 85; 3 Id. 405 §'§ 20, 22. The present action, it will be remembered, is for unlawful detainer — a statutory action — which must be prosecuted, in the first instance, before a justice of the peace. “An unlawful detainer is where one who has lawfully entered into possession of lands or tenements, after the termination of his possessory interest, refuses, on demand in writing, to deliver the possession thereof to any one lawfully entitled thereto, his agent or attorney.” — Code of 1876, § 3697. The notice here referred to is not the notice to terminate a lease, which we have been considering. The notice to terminate can, in the nature of things, be necessary or proper, only while the tenant is in possession under a lease, express or implied. If he is a mere intruder or trespasser, he is not entitled to notice to quit. Forcible entry and detainer is the proper remedy for evicting such trespasser. When, however, as in this case, the entry is lawful, and the tenancy continues by the terms of the contract until properly terminated by notice to quit, that notice, in the very nature of things, must be given before the lease expires, and while the defendant has, the lawful right to retain possession. This, because in a tenancy from month to rhonth, the tenant has the lawful right to retain possession, and his lease does not expire, until it is terminated by a proper notice to quit, as we have stated above. The notice for- which section 3697 makes provision is an entirely distinct proceeding, but is, nevertheless, a necessary constituent of our statutory unlawful detainer. The one notice has for its object the termination of an existing lease, which, in the absence of such notice, will sanction and justify the tenant’s continued possession. This can only be necessary when, in its absence, the tenant has the lawful right to retain possession. The other can be given only after the termination of the possessory interest; and in all cases where there has been a previous lawful possessory interest, and the wrong consists in holding over without authority, this notice is one of the necessary constituents of the statutory tort, known as unlawful detainer. — -Code, §3697. Without such notice, the summary jurisdiction of a justice of the peace does not attach. So, in cases like this, it would seem two notices are necessary. In the motion made in this case to exclude proof of the notice from the jury, and in the stated ground on which its exclusion was moved, it appears to have been dealt with as the notice for which § 3697 of the Code makes provision. That, we have seen, was an error. It was, however, as we have shown [541] above, an error without injury; for, in no sense, did the testimony offered tend to prove either of the notices which appear to have been necessary to the maintenance of this action. Affirmed.