Glenn v. Nixon

• Decision Date: 07 November 1946
• Docket Number: 8 Div. 352.
• Court: Alabama Supreme Court
• Parties: GLENN v. NIXON.

28 So.2d 718

248 Ala. 569

GLENN v. NIXON.

8 Div. 352.

Supreme Court of Alabama

November 7, 1946

Rehearing Denied Jan. 16, 1947.

W. C. Rayburn, of Guntersville, for appellant.

Claud D. Scruggs, of Guntersville, for appellee.

Plaintiff's notice to defendant was as follows:

'You are hereby notified to quit and surrender the possession of the filling station and grocery combined, on or before the first day of February 1945 which station is located * * *. For authority of this notice see Title thirty-one, and section number three. * * *

'Jan 15, 1945.'

LIVINGSTON, Justice.

This is a proceeding in the nature of unlawful detainer, under Chapter 3, Title 31, Code, which deals with possession of land wrongfully withheld. In general effect, sections 35 and 36 of Chapter 3, supra, provide that where a tenant shall hold possession of land or tenancy over and beyond the term for which the same was leased to him, and after his right of possession has been terminated, or been forfeited, and the landlord makes affidavit to that effect before a justice of the peace or a court of like jurisdiction, and that he has demanded possession of such tenant, and that the tenant has refused to surrender possession, the landlord may have a writ of possession issued by such justice of the peace or court of like jurisdiction directed to any lawful officer, sheriff or constable, commanding such officer to deliver to the owner or his representative full and quite possession of the land.

Section 38, Title 31, Code, provides for the service of the writ of possession issued under section 36, supra. Section 37, Title 31, Code, provides for the arrest of the proceeding by the tenant.

Section 39, Title 31, Code, provides for a return of the proceeding to the justice of the peace or court issuing same, and that the fact or facts in issue shall be tried

by such justice or court on the third day after delivery to said sheriff or constable of the counter affidavit: Sundays and legal holidays excepted. The succeeding sections provide for judgment and appeal.

The proceeding is purely statutory, and partakes of the nature of unlawful detainer. The burden is on the plaintiff to show that the tenant is holding over and beyond the term for which he rented or after his right of possession has terminated or been forfeited.

This case originated in the justice of the peace court, and resulted in a judgment for the landlord. The tenant appealed to the Circuit Court of Marshall County where the issues were tried, and again resulted in a judgment for the plaintiff landlord. From the last said judgment, the tenant appellant prosecuted this appeal.

It seems undisputed that the tenant occupied the premises for eleven months during the year 1944, and was still occupying it on January 5, 1945. On said date the tenant paid the landlord $100 for past occupancy, the landlord agreeing to 'knock off' $10 of the accrued rent.

It is also undisputed that the lease or renting was one tenus, and the question of its existence and terms was for the trial court who tried the case without a jury. Garrett v Reid, 244 Ala. 254, 13 So.2d 97. The cause was tried on testimony taken ore tenus before the trial judge, and the usual presumption supporting his findings of fact will be indulged on appeal.

In effect the trial court found that the tenancy was from month to month. On the record, and under the rule prevailing, we are not willing to disturb that finding.

In Garrett v. Reid, supra, it was held that in a proceeding under section 35, Title 31, Code, where the tenancy ran by the year, two notices were required before invoking the aid of the section: (1) A notice terminating the tenant's possessory interest, and (2) the demand for the delivery of possession required by section 967, Title 7 Code. In cases of tenancy from month to month, it is clear enough that the landlord cannot oust the tenant without first terminating the tenant's possessory interest. The procedure for so doing is provided for by section 5, Title 31, Code. It is equally clear that the procedure provided for by Chapter 3, Title 31 supra, being in the nature of an action in unlawful detainer must be read in pari materia with section 967, supra, which provides that 'an unlawful detainer is where one who has lawfully entered into possession of lands as tenant, fails or refuses on ten days' demand in writing after the termination of his possessory interest, to deliver the possession thereof to anyone lawfully...