Budds v. Frey
| Decision Date | 19 June 1908 |
| Docket Number | 15,756 - (114) |
| Parties | JAMES H. BUDDS and Another v. GEORGE M. FREY |
| Court | Minnesota Supreme Court |
Action in the municipal court of Minneapolis in forcible entry and unlawful detainer. The answer was a general denial. The case was tried before Waite, J., who made findings and as conclusion of law found defendant guilty of wrongful detention of the premises and that plaintiffs are entitled to immediate restitution. From the judgment entered pursuant to the findings, defendant appealed. Affirmed.
Computing Time "From."
Whether the word "from" shall be construed as inclusive or exclusive of the terminus a quo depends upon the subject-matter and context. When it refers to the time within which an act is required or permitted to be done, the statute (R.L. 1905, § 5514, subd. 21) provides that, with certain exceptions, the first day shall be excluded.
Computing Time "From" -- In Lease.
But when the words "from the date," or "from" a day named, are used in connection with the creation of an estate or interest, and it is not contrary to the expressed intention of the parties, the date named from which the estate or interest is to exist is to be included, and the estate or interest vests on that day.
Possession of Tenant.
The rights of a tenant in possession of real property under a valid unexpired lease are not affected by a replatting of the land by the owner in fee, or the dedication of a portion of such land for a public alley. He cannot be disturbed in the possession of the land until his lease is legally terminated. But such platting cannot confer upon him the right to remain in possession after his lease is legally terminated, and he must therefore surrender possession to the owners of the fee.
Defect of Parties.
The question of a defect of parties plaintiff or defendant can only be raised by demurrer or answer. If not so raised, it is waived.
L. A. & A. P. Reed, for appellant.
G. W Lewis, for respondents.
On April 1, 1902, William J. Godfrey was the owner of a certain addition to the city of Minneapolis, known as "Godfrey's Bridal Veil Block," in which there was a subdivision known as block 1, lot 2, thereof. On that date Godfrey by a parol agreement leased a certain portion of block 1, lot 2, to the appellant, Frey. The term of the lease was from quarter to quarter from and after April 1, 1902, and the lessee agreed to pay a rental of $80 per year, payable quarterly, in advance, on the first days of January, April, July, and October of each year. When the lease was made there were upon the land certain buildings which were owned by Frey, and other buildings were placed on the land by him after he went into possession under this lease. Immediately after the making of the lease said Frey entered into possession of the premises under the lease, and thereafter paid the quarterly rent, according to the terms of the lease, until April 1, 1907. The amount due on April 1, July 1, and October 1, 1907, respectively, has never been paid. On February 6, 1907, Godfrey replatted block 1, lot 2, of Godfrey's Bridal Veil Block, into an addition to the city of Minneapolis, known as "Bridal Veil Falls Addition to Minneapolis," and on the plat donated and dedicated the alley therein to the public use. This plat was duly filed in the office of the register of deeds.
The land leased to Frey and occupied by his buildings was replatted into lots 14, 15, 16, 17, 18, 19, and 20, of block 1, of said Bridal Veil Falls addition, and an alley, fourteen feet in width, fronting on Lennox street. This alley separated lots 19 and 20 from lots 14, 15, 16, 17, and 18. The land leased to Frey did not include the whole of these lots, but only the land on which the buildings stood and ninety feet of the alley. Part of the buildings was also on the land dedicated for an alley. The plat was recorded in February, 1907, and on March 30, 1907, Godfrey and his wife sold and conveyed all of block 1 in Bridal Veil Falls addition to Harry F. Newhall. This deed was duly filed for record on April 12, 1907. April 11, 1907, Newhall and wife conveyed block 1 to James B. Miner, and Miner the same day sold and conveyed lots 14, 15, 16, 17, and 18, of block 1, to James H. Budds. The replatting and all of these transfers were without the consent or acquiescence of Frey. On April 30, 1907, Frey was formally notified of the change of ownership of the premises, and Budds and Miner, by their agent demanded that he pay to them the $20 due as rent from April 1, 1907, to July 1, 1907. He refused to pay the rent, but remained in possession of the premises. Thereafter, on June 28, 1907, as found by the trial court, the "plaintiffs served upon defendant a good and valid notice to terminate said lease and remove his buildings therefrom on or before the 30th day of September, 1907."
This demand not being complied with, this action of forcible entry and unlawful detainer was commenced, and the trial court found the defendant guilty of the wrongful detention of the premises and ordered judgment for immediate restitution. The defendant appealed from the judgment, and in this court contends that (1) the notice was bad, because it required the lessee to remove before the end of one of the quarter periods, and because it was a notice to quit only a part of the premises; (2) plaintiff cannot recover possession, because the contract to pay rent has been split; (3) there is a defect of parties, in not joining Godfrey and the city of Minneapolis; and (4) plaintiffs have not shown themselves entitled to any definite or certain amount of rent upon which their cause of action must rest.
1. The action was not based upon the failure or refusal of the tenant to pay rent, but upon the fact that the tenancy had been terminated by the giving of a proper notice to quit. Frey was a tenant at will, and the landlord had the right to terminate the tenancy at any time by giving proper notice. The notice served required him to surrender possession on September 30, and this was a good notice, if that was the last day of the old quarter. Petsch v. Biggs, 31 Minn. 392, 18 N.W. 101. But the appellant contends that, as the lease was from quarter to quarter "from and after April 1, 1902," the first day of the month must be excluded, and that the term ended on October 1, instead of the thirtieth day of September. If this construction of the lease is correct, no proper notice was given. There has been a great deal of discussion and some difference of opinion as to whether the word "from," as applied to time and distance, is to be used as inclusive or exclusive of the terminus a quo. The statutory rule is that, in computing the time within which an act is required or permitted to be done the first day shall be excluded and the last included, unless the last day shall fall on Sunday or on a holiday, in which case the prescribed time shall be extended so as to include the first business day thereafter. R.L. 1905, § 5514, subd. 21. Manifestly this cannot aid us in determining when a lease commences or...
To continue reading
Request your trial