Cook v. Creswell

Brent, J., delivered the opinion of the Court. The power reserved in the deed of marriage settlement from Thomas A. Murphy and RebeccaE. Creswell, to John A. J. Creswell is very full and explicit, and the terms in which it is set out so clear, that it would seem there could be no doubt of the authority of Mrs. Murphy, formerly Rebecca E. Creswell, to rent the premises involved in this action. And upon the authorities cited we should have no difficulty in reaching that conclusion, if this was a case in which that question could be raised by the appellants. A tenant will not he permitted to dispute the title of his landlord, and this most especially where he has entered by virtue of his tenancy, and occupied the premises for the full term of his renting without molestation or eviction. These appellants rented the property in question from Mrs. Murphy, and continued to occupy it from 1861 to 1872, recognizing her as the person from whom they rented, by repeated settlements, and the payment of rent to her. The contract of renting seems to have been made by her with D. S. Cook in 1871, who did not disclose, at the time, that he was acting as the agent of his wife, O. R. Cook. But certain it is, that by virtue of that renting they entered upon, and occupied the property. If she is to be regarded as the occupant, the proof of repeated settlements shows that she recognized the agency of D. S. Cook, [594] and afterwards treated Mrs, Murphy as her landlady,-— crediting her store accounts hy the amount of rent, agreed upon with D. S. Cook, and taking the note of Mrs. Murphy for the balance due her, whenevér her store account against Mrs. Murphy exceeded the amount of the yearly rent. The renting was from year to year, and hy the first contract, commenced on the 15th of November, 1861, running for a period of one year from that date. This continued until the 14th of January, 1867, when a settlement of the rent of previous years to the 1st of January, 1867, and also of the store accounts of C. R. Cook was had between D. S. Cook and Mrs. Murphy. It was' then agreed between them, that the annual renting, instead of commencing on the-15th of November, should commence on the 1st day of January — the change being made at the solicitation of D. S. Cook. This change was also adopted and acted upon by Mrs. Cook. In the settlement of the 14th of January, 1867, in which rent was charged to the 1st of January, 1867, Mrs. Murphy seems to have fallen in debt, upon the excess of Mrs. Cook’s store account over the rents, in the sum of $106.80, for which she gave her note at ninety days to Mrs. Cook, hy the name of O. R. Cook. This note endorsed hy O. R. Cook was discounted in the Cecil National Bank, and paid at maturity hy Mrs. Murphy. A settlement was made on the 31st of December, 1867, for the rent of 1867, when again the store account of C. R. Cook with Mrs. Murphy, was credited .“ by one year’s rent to 1st January, ’68,” and so also with the rent of 1869 and 1870. This uncontradicted proof shows that the renting which first commenced on .the 15th November, was afterwards changed with the assent of Mrs. Cook, so as to commence on the 1st of January, and Mrs. Cook thereby became the tenant of Mrs. Murphy, at a renting from year to year to commence on the 1st of January in each year. [595] Although Mrs. Murphy seems to have believed she was renting to the husband, who did not disclose his agency, yet as it appears he was in fact the agent of his wife, it is conceded that she is to be regarded and treated as the tenant. As she recognized the agency of D. S. Cook, and adopted and acted upon the change as to the commencement of the tenancy in 1861, she is now estopped from claiming or insisting that she never surrendered the term, which, under the first renting commenced in November. Nor will she be permitted, upon the facts in this case, to set up the objection that there is no proof of the surrender of the terms of former tenants, who had rented from year to year the property in question, before she rented it through the agency of her husband. It is not pretended that she did not enter on the day of the commencement of her tenancy, or that she was ever disturbed in her occupancy of the premises. On the contrary, she and her husband have been in possession since the 15th of November, 1861, and so satisfied are they with their possession, that they seem most anxious to retain it. We have concluded from an examination of all the proof, that C. R. Cook and her husband were in possession by virtue of a renting from year to year from Mrs. Murphy — . she as tenant, and he as husband and general agent of his wife, C. R. Cook. The term of their holding was from year to year, commencing after 1866, on the first day of January. Have they had a sufficient notice from Mrs. Murphy, that their tenancy was to terminate on the first day of January, 1812? On the 30th of May, 1811, the following notice was served by Wm. Ileald, on D. S. Cook, the husband and agent, and left with him upon the premises: “ Mr. C. R. Cook. — As I am desirous to have again and re-possess the premises and store-house, which you now hold [596] of me as tenant, I hereby give you notice to remove from and quit the same at the end of the year of your tenancy, which shall expire on the first day of January next— Dated Port Deposit, this 30th day of May, 1871. Rebecca E. Murphy.” As we have already seen, that this was a tenancy from year to year running from January to January, the notice is in ample time. But it is objected to it, that it is addressed to Mr. and not to Mrs. C. R. Cook, and that it was not served upon Mrs. Cook,— the proof being that it was left upon the premises with D. S. Cook her husband. A notice to quit will be held good, if upon the whole it is intelligible, and so certain that the tenant cannot reasonably misunderstand it. An obvious mistake in some part will not invalidate it, if it is otherwise so explicit that the party receiving it cannot be misled. In 2 Greenl. on Ev., sec. 323, it is stated, “ A misdescription of the premises, or a misstatement of dates which cannot mislead, will not vitiate the notice; nor need it he directed to the person. Even if directed by a wrong name, yet if he keeps it without objection the error is waived.” See Doe ex dem. Cox, et al., 4 Esp., 185 ; Doe ex dem. Matthewson vs. Wrightman, 4 Esp., 5; Doe vs. Spiller, 6 Esp., 70 ; Doe vs. Kightley, 7 T. R., 63. In Clark vs. Keliher, 107 Mass., 406, the notice was addressed to John Clark, whose true name was Thomas B. Clark. Ames, J., in considering this mistake, uses the following language : “ The notice to quit was sufficient and lawful, both in substance and in the mode of service. There was no uncertainty as to the party from whom it emanated or the tenement to which it applied, and there could have been no doubt it was meant for the family who occupied that tenement. The mistake in the Christian name of the tenant was therefore of no importance.” Applying this doctrine to the case before us there can be no doubt of the sufficiency of the notice. The party from whom it emanated was the [597] person from whom the promises had been rented, the premises are described with certainty, and neither Cook nor his wife could have doubted that the notice was intended for the tenant ‘ ‘ who occupied that tenement. ’ ’ (Decided 14th June, 1876.) We are also satisfied that the delivery of the notice to D. S. Cook upon the premises, was a sufficient service upon his wife C. R. Cook. He was not only her husband, but her agent, especially in the renting of the premises in question. He was in the house occupied by her as tenant, when the notice was delivered to him. In 2 Greenl., sec. 324, the author says, “service of notice at the dwelling house of the party is sufficient, whether upon the party in person, or his wife or liis servant.” In Walker vs. Sharpe, 103 Mass., 154, Gray, J., upon an examination of the English cases, holds it to be well settled in England, that delivering a notice on the premises to the wife or agent of the tenant, or any other person occupying the same jointly with or under him, is a sufficient service. If the delivering of a notice to the wife is a service upon the husband, the same principle must be held to apply vice versa, where the wife is the acknowledged tenant, and that especially where the husband is her authorized agent and is occupying the premises jointly with her, as was the case in this instance. It follows, from these views of the law as applicable to this case, that the instruction asked for by the plaintiff was properly granted, and those on the part of the defendants, except the second which was granted, were properly rejected. It also follows that the special objections to the plaintiff’s prayer were properly overruled. Judgment affirmed.