Irvine v. Scott

CHIEE JUSTICE PRYOR delivered the opinion of the court. This is a controversy between the landlord and tenant in regard to the possession of a stable in the city of [262] Lexington. It appears from the agreed state of facts that the appellant had rented this stable of the appellee for a number of years by parol. The renting was by the year, at the rate of twenty dollars per month, the rent payable monthly. On the 8th of October, 1882, the appellant and appellee entered into a written contract, by which appellant rented the stable for one year, at the price of two hundred and forty dollars, the rent to be paid, as under the parol contract, by the month. The rent expired on the 8th of October, 1888, and the appellant still continued in the possession of the premises, paying to the appellee the rent at the end of each month, as under the former contracts of renting. These payments were made for two months, and nothing said about the lease. At the end of two months. the appellee demanded an increased rent, and the appellant refusing to pay a greater sum, this warrant of forcible detainer was issued, resulting in a judgment of eviction. It seems that the appellant had filled his stable with provender for the ensuing year, and was proceeding to occupy the premises as he had done under the previous renting. The right to maintain this warrant is based on the provisions of section 1, article 4, chapter 66, General Statutes. That section was construed by this court in the case of Mendel v. Hall, reported in 13 Bush, 232. It is there said that it was the duty of the tenant to abandon the premises at the expiration of his term, and that a holding over for a less period than ninety days, gave the landlord the right to proceed against the tenant without notice, and also the right to the tenant to abandon the premises within that time. Where the holding over is [263] for ninety days after the expiration of the day fixed by the lease for abandoning the premises by the tenant, he then becomes a tenant for another year from the expiration of his lease. A contract for renting to expire on a certain day, when the tenant holds over, is ■distinguished from a tenancy at will or by sufferance, .and it is in that class of cases where article 4 of chapter •66, applies. By section 1 of article 6 of the same chapter, “a tenancy at will or by sufferance may be terminated by the landlord giving one month’s notice to the tenant, requiring him to remove;” but when by the contract a day is fixed for the renting to expire, and there is a holding over for ninety days, the tenant becomes a tenant for another year, and is not a tenant at will or 'by sufferance. It is plain that under article 4 of chapter 66, the landlord .may sue out his writ of forcible detainer without notice, when the tenant fails to leave on the ■day fixed, and has not held over for ninety days after the renting terminates. In this case the renting expired on a named day, and there is no express contract to continue longer. Nothing was said about the lease, and, therefore, there must be some facts that must defeat the landlord’s right to the possession, in addition to the mere holding over by the tenant, or the eviction must take place. The mere belief on the part of the tenant that he is to continue is not sufficient, or the implied understanding alone will not defeat the warrant. In this case it appears that the renting had been from year to year under the same contract or the same terms, [264] and a continual possession of tlie property by the appellant under a renting from year to year until this warrant was issued or the demand for an increase rent, made. The holding over was by the consent of the landlord, and the monthly rent paid as formerly for two months after the expiration of the day the tenant, should have left; but this alone would not be sufficient-to defeat the remedy of the landlord for the possession,, but the latter stands by and permits the tenant to fill the stable with provender sufficient to last for the ensuing year, and then does not demand the possession, but an increased rent. It was in effect saying to the tenant,, you can continue in possession and make arrangement» to retain possession for another year, and not only induced but sees the tenant make an expense that no-man of ordinary prudence would have made, but for the conduct of the owner of the premises. Under such-circumstances, the right of the landlord to adopt such a remedy as is provided by the statute will be denied him. “The rule is clear and proper that that one is concluded not only by what he does or says, but by the natural and reasonable inference from his declarations- or conduct.” (Bigelow on Estoppel.) The payment of rent establishes the relation of landlord and tenant, but here that relation is controlled by the statute. The landlord has, by his own conduct and his failure to speak or assert his claim, stood by and seen the tenant provide for the year’s rent by an expenditure that works an injury to the tenant, unless he-can hold for the year. He believed that he had the right to hold for the [265] year. That holding was induced by the act of the appellee, and the tenant, acting upon it, has done that which he would not have done but for appellee’s conduct. The judgment must then be reversed, and cause remanded for proceedings consistent with this opinion.