Engels v. Mitchell
| Decision Date | 03 January 1883 |
| Citation | 14 N.W. 510,30 Minn. 122 |
| Parties | Lewis Engels v. Andrew Mitchell |
| Court | Minnesota Supreme Court |
Appeal by defendant from a judgment of the municipal court of St Paul, in an action for unlawful detainer. The case is stated in the opinion.
Judgment affirmed.
Walsh & Goforth and J. B. Beals, for appellant.
The complaint failed to state a cause of action. Bush v Dunham, 4 Mich. 339; Bryan v. Smith, 10 Mich 229; Allen v. Carpenter, 15 Mich. 25; McGuffie v. Carter, 42 Mich. 497; Armstrong v. Hinds, 8 Minn. 221, (254;) Chandler v. Kent, 8 Minn. 479, (536.) This action only lies upon a termination of a tenancy at will by notice to quit. Raynor v. Haggard, 18 Mich. 72; Wheeler v. Wood, 25 Me. 287.
O'Brien, Eller & O'Brien, for respondent.
This is an appeal from a judgment for restitution of demised premises, rendered by the municipal court of St. Paul, in an action under Gen. St. 1878, c. 84, § 11. On the returnday of the summons, the defendant appeared specially, and moved to dismiss the action, on the ground that the complaint did not set forth facts sufficient to constitute a cause of action. The motion was denied, and renewed and again denied when the cause came on for trial. The same objection to the complaint is made here, and the further objection is made that the evidence did not sustain the cause of action attempted to be alleged.
The complaint states a tenancy at will, the rent payable monthly, in advance, on the fifteenth of each month; that defendant entered under said leasing, April 15, 1882, and still remains in possession, and refuses to surrender the premises; that June 2, 1882, the parties agreed together that defendant should leave and vacate the premises, and surrender the same, on or before June 15, 1882, and the plaintiff should discharge him from all further obligations under the lease, and accept the surrender. The action was commenced after June 15th. The specific objections to the complaint are that it does not show plaintiff to be entitled to the possession, assuming defendant's right to have ceased, and that it does not show any notice to quit, which the statute makes a prerequisite to proceeding under the section referred to, in cases of tenancies at will.
Appellant argues that the complaint should allege that plaintiff is entitled to the possession, or that he is the owner. The allegation that plaintiff is entitled to the possession is a proper one to make in the complaint in actions of this character. But it is not necessary that the right to possession should be expressly alleged, if the facts stated show the right to be in plaintiff. The facts alleged in this complaint show this conclusively as between the parties, unless the defendant can avoid the estoppel to deny plaintiff's right created by the leasing, and the entry under it. If facts exist which remove the estoppel, it is for the defendant to show them, and not for plaintiff, in the first instance, to negative their existence. As between landlord and tenant, the former is prima facie entitled to possession at the termination of the lease; and if facts exist which justify the tenant in refusing to surrender to him, the tenant must allege and prove such facts. The complaint shows plaintiff to be the proper person to bring the action.
In respect to notice to quit, the appellant misapprehended the character of the tenancy existing, according to the complaint, from...
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