Judd v. Fairs

Sherwood, J. This record presents for review a case made after judgment upon the findings of law and fact by the circuit judge. The proceedings were summary, to recover the possession of land, before a circuit court commis [520] sioner in tlie county of Kent, under How. Stat. § 8295. The following facts were found by the circuit judge, and no exception is taken thereto: In April, 1880, the plaintiff owned and leased to the defendant for one year the premises in question at an annual rental of $35. At the end of the year the lease was verbally renewed for an indefinite period, but for more than one year, the rent received to be paid annually. Under this agreement the defendant remained in possession over two years, during which time he erected buildings upon the premises, in which he lived and carried on his business, with the knowledge and permission of the plaintiff. In August, 1883, about $95 rent had become due to the plaintiff, and the plaintiff, by híé agent, orally demanded payment thereof of defendant, and the defendant refused to pay, and thereupon the plaintiff gave the defendant the following notice to quit: “ To James Fairs: Sir- — You will please take notice that I have elected to terminate the lease of the premises that you now occupy and hold under me, and you are hereby notified to quit and deliver up the quiet and peaceable possession of said premises to me within fourteen days after service on you of this notice. Said premises .being described as Lot number seven (7) Boynton & Judd’s addition, situated in the township of Grand Rapids, in the county of Kent, State of Michigan. Charles B. Judd, Per B. C. Girdler, Agent and Attorney for Charles B. Judd.” The defendant, on being served with this notice, refused to give up possession of the premises, and fifteen days thereafter the complainant instituted the proceedings had in this case. Possession was awarded the plaintiff by the commissioner, and on the trial of the appeal the circuit judge awarded to him the writ of restitution, holding, as a question of law upon the facts stated, that the notice given was sufficient to terminate the tenancy. This finding of law was excepted to by defendant’s counsel, and raises the only question to be considered upon this record. [521] Ve think the finding of the circuit judge was correct. The legislation in this State has greatly changed the common-law requirement of the notice to quit to be given by the landlords to tenants of leased premises before restitution can be had. Under the rulings of this Court heretofore made, the defendant was a tenant from year to year, and had he kept up his rent, would have been entitled to a notice to quit, as such, from the landlord, ending with the year. But the defendant failed to pay his rent. The circuit judge finds, as one of the facts in the case, that the defendant not only owed, but that there was due to the plaintiff rent to the amount of $95 (it being the rent for over two years), when the notice to quit was served. The record further shows that the plaintiff asked defendant to pay this rent, and he refused so to do, and thereupon the plaintiff gave the foregoing notice to quit. The verbal demand of payment and the notice to quit were sufficient, and brought the plaintiff’s case within the provisions of How. Stat. § 8295, subd. 2.1 These views are sustained by the following decisions of this Court. Morrill v. Mackman 24 Mich. 279; McSloy v. Ryan 27 Mich. 110; Coan v. Mole 39 Mich. 454; Moody v. Seaman 46 Mich. 74. The judgment of the circuit court must be affirmed. Cooley, C. J. and Campbell, J. concurred. Champlin, J. did not sit in this case. Footnotes [1] §8295. ** * The person entitled to any px-emises may recover possession thereof in the manner hereinafter provided, in the following cases : * -SC* & *Jf Second. When any rent shall .have become due, on any, such lease or agreement, and the tenant or person in possession shall have neglected or x-efused for seven days after demand of the possession of the premises, unless waived as aforesaid, made in writing, to deliver up possession of the premises or pay the rent so due.