Harris v. Hill

• Decision Date: 07 November 1914
• Docket Number: 63
• Citation: 190 Ala. 589,67 So. 284
• Parties: HARRIS v. HILL.
• Court: Alabama Supreme Court

67 So. 284

190 Ala. 589

HARRIS v. HILL.

No. 63

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from Circuit Court, Montgomery County; Armstead Brown, Judge.

Ejectment by William Hill against Kincheon Harris. Judgment for plaintiff, and defendant appeals. Affirmed.

Evans &amp Parrish, of Montgomery, for appellant.

Hill Hill, Whiting & Stern, of Montgomery, for appellee.

DE GRAFFENRIED, J.

Under the evidence in this case the trial judge was authorized to find that more than two years before the suit was brought William Hill rented the lands sued for to Kincheon Harris, by the month, at a rental, to be paid at the end of each month of $10 per month. He was also authorized to find that for a period Kincheon Harris paid William Hill the rent monthly, but that, finally he became negligent about the matter, paid his landlord some money as his convenience suited him, and then, at last, quit paying any rent at all. He was authorized to find that for at least six months before the suit was brought the tenant not only refused to pay the landlord any rent, but that he also refused, upon demand made before this suit was brought, and more than 30 days before the suit was brought, to vacate the premises and deliver possession of them to his landlord. The landlord testified as a witness in the case, and the following excerpt from his testimony will illustrate the situation which confronted the trial judge when he, upon the evidence, rendered a judgment in favor of the landlord:

"The trade was to rent. My wife said, 'The place is worth $10 per month,' and I said, 'Yes; the place is worth $10 per month,' and Kincheon Harris said he would take it. He rented it by the month. When I tried to get possession he had been renting it about a year, I think, or a year and two or three months. He got in possession of it and wouldn't pay me no rent. Just stayed in it. I tried to get him out, and he would not get out. *** The last rent I collected from Kincheon, I think, was in March or April 1912. He paid me $1.80 on May 4, 1912. He made no payment after that time. *** Before bringing this suit I made demand on him to get out, and he refused to get out."

This suit--a statutory action in the nature of ejectment--was brought on November 4, 1912. The evidence does not show that there was a written demand by the landlord upon the tenant to vacate, and we presume that the demand was a verbal demand.

1. The 10 days' written notice which is required in actions of unlawful detainer (see section 4263 of the Code of 1907, in which an "unlawful detainer" is defined) has no applicability to this case. This is an action of ejectment, and not an action of unlawful detainer, and the above subdivision of the Code reference to 10 days' written notice applies, not to an action of ejectment which is triable in a court of record and by a jury, but to an action of unlawful detainer, a summary action which may be brought before and tried by a justice of the peace. This is shown, not only by the language of the above section and its kindred sections, but also by the construction which was placed upon the above section by this court in McDevitt v. Lambert, 80 Ala. 536, 2 So. 438. In that case this court, through Stone, C.J., said:

"The present action, it will be remembered, is for unlawful detainer--a statutory action--which must be prosecuted, in the first instance, before a justice of the peace. 'An unlawful detainer is where one who has lawfully entered into possession of lands or tenements, after the termination of his possessory interest, refuses, on demand in writing, to deliver the possession thereof to any one lawfully entitled thereto, his agent, or attorney.' Code 1876, § 3697. The notice here referred to is not the notice to terminate a lease, which we have been considering. The notice to terminate can, in the nature of things, be necessary or proper, only while the tenant is in possession under a lease, express or implied. If he is a mere intruder or trespasser, he is not entitled to notice to quit. Forcible entry and detainer is the proper remedy for evicting such trespasser. When, however, as in this case, the entry is lawful, and the tenancy continues by the terms of the contract until properly terminated by notice to quit, that notice, in the very nature of things, must be given before the lease expires, and while the defendant has the lawful right to retain possession; this because in a tenancy from month to month the tenant has the lawful right to retain possession, and his lease does not expire until

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