Hurd v. Whitsett

• Decision Date: 01 April 1878
• Parties: HURD et al. v. WHITSETT.
• Court: Colorado Supreme Court

4 Colo. 77

HURD et al. v. WHITSETT.

Supreme Court of Colorado

April, 1878

Error to County Court of Arapahoe County.

WHITSETT the plaintiff in the court below, based his action upon the seventh section of chapter thirty-five of the Revised Statutes, concerning forcible entry and detainer. The declaration was substantially as follows:

First count: 'Plaintiff complains that the defendants are indebted to him in the sum of $700, for that on June 1st 1874, Frank L. Moore possessed lot 28, in block 20, East Denver, Colorado, with a certain building thereon; that on that day the said Moore rented said building to the defendants for one month certain, and from month to month thereafter; that by such demise the defendants retained the possession of said premises until March 26th, 1875; that on January 25th, 1875, the said Moore conveyed said premises to the plaintiff; that by such conveyance the defendants became tenants to the plaintiff at a tenancy from month to month that on March 26th, 1875, the plaintiff gave notice in writing to the defendants that on and after the month of April, he should consider them his tenants for one year, at a monthly rental of $175 per month, payable on the first day of every month; that failing to consent to such terms and time they should surrender said premises at the expiration of the month of April, the defendants continued in possession of said premises, and still possess the same that thereby the defendants became tenants to the plaintiff for one year certain next after said month of April, and became liable to pay the plaintiff $175 per month during said term; that on November 2d, 1875, $700 for said rent for the months of August, September, October and November, was due to the plaintiff.

'Second count: That the plaintiff on May 1st, 1875, did demise to the defendants one certain other brick building on lot 28, block 20, in East Denver, for one year certain, commencing on the day last aforesaid, for the monthly rent of $175, by force whereof said defendants possessed said premises until November 1st, 1875, at which time $700 was due and owing to the plaintiff from defendants.

Breach.-That defendants, though often requested, have not paid said sum of money or any part thereof.'

To the above declaration defendants pleaded: 'First, nil debit; and, second: 'That after the expiration of said month of April, the defendants continued to occupy said premises as tenants from month to month until July; that the plaintiff received the rent for said months from the defendants, as tenants from month to month; that on the first day of July they gave notice to the plaintiff that they would quit the possession of said premises at the end of the month of July; that at the end of said month they did vacate said premises, and offered the keys thereof to the plaintiff, and have not since occupied any part of said premises.'

'Replication.-That defendants did not at the expiration of the month of April continue as tenants from month to month until the end of July; that defendants did not pay the rent of said premises as tenants from month to month, and that plaintiff did not receive the rent from defendants as tenants from month to month.'

Upon the character of the tenancy the court below gave, among others, the following instructions, which are adverted to and approved in the opinion:

'4. If the jury believe, from the evidence, that the defendants, while in possession of the premises under Moore and Whitsett respectively, were accustomed, prior to March 26th, 1875, to pay rent for said premises monthly in advance, that is prima facie evidence that they were holding as tenants from month to month, and raised a presumption of a monthly tenancy, which the jury must be governed by, unless overthrown by other testimony.

* * *

* * *

'6. If the jury believe, from the evidence, that the original lease of the defendants from Moore was for an unlimited or indefinite time, but with the reservation of a monthly rent, this is considered in law as creating a monthly tenancy, and the tenants under such lease would be tenants from month to month.'

The plaintiff below recovered judgment for the sum of $700, debt, nominal damages, and costs of suit. To reverse this judgment the defendant sued out this writ of error.

Mr. JOHN W. BLACKBURN and Messrs. BUTLER & WRIGHT, for plaintiffs in error.

Messrs. WELLS, SMITH & MACON, for defendant in error.

STONE J.

Two questions arise for our determination: First, what was the character of the tenancy as to duration; was it from month to month? Second, under the notice given, did the statute operate to change such character of the tenancy?

I. The first question is to be determined by the terms of the contract, if there was a contract respecting the term at all; if not, then by implication, based upon whatever facts in the whole case exist from which a legal inference fixing the term may be deduced.

There was no written lease, and the evidence shows no express contract as to the length of term beyond the first month.

Whitsett testifies that 'the younger Hurd said they had the property from month to month at $175 per month; I received rent from defendants up to August 1, 1875, at that rate; * * * I wanted the defendants to rent the property for a year, and they always said they wanted to rent it from month to month; * * * they refused to lease the premises by the year; * * * I accepted them as tenants on the same terms as they had of Moore; I read the notice to Hurd, and he got huffy and said they were to have the store as long as they wanted it.'

Moore deposes: * * * 'D. Hurd & Sons' lease was to commence in August, 1873; I made the lease through an agent; * * * John Clough & Co. were my agents; * * * I called at the store and agreed with Daniel Hurd that they could have the place, but nothing definite was said as to time or terms; the defendants continued to occupy the building until I sold it to Richard E. Whitsett in January, 1875; they paid the rent monthly in advance; after the first term expired I demanded a larger rent, but accepted the same that defendants had been paying rather than have them move out; no definite agreement was made for the future.'

Daniel Hurd testified: * * * 'Looked for a house to do business in, and found the house in controversy; saw the agent, John Clough, and got the refusal of it; we were to pay $175 per month; I told him I wanted it for a large wholesale grocery business, and wanted a place where we could stay, as it would be ruinous to move, but would take it for no specified time; * * * Moore brought Whitsett to my office and introduced him to myself and son; he said he had sold the property to Whitsett, and we were to pay rent to him; our understanding with Clough was referred to, and the same terms were to do continued; * * * Whitsett came in several times afterward, and wanted us to keep it on the same terms for a year; we refused, and said we would get out as soon as we could * * *.'

Charles R. Hurd testified: 'Paid the rent monthly in advance; made the bargain with Clough; * * * he wanted us to take a lease, but no time was set; Clough was not to turn us out without notice, and we were not to quit without notice; * * * Moore said he had sold the property to Whitsett, who would be our landlord on the same terms we had before; I don't think any thing was said about the particular terms on which we had held the property * * *.'

Under the state of facts as disclosed by this testimony, we must hold the tenancy to have been a tenancy from month to month.

The general rule at common law is, that a tenancy for an indefinite time, or even for any aliquot part of a year, as stated in some of the books, is to be considered a holding from year to year. A holding merely at the will of the landlord, according to the ancient meaning of the term 'tenancy at will,' is an estate unknown in modern times, unless where created by express agreement between the parties, or by clear implication. All such tenancies are, for the purpose of a notice to quit, deemed to be tenancies from year to year. 1 Wash. Real Prop. 589; Tyler's Eject. and Adv. Enj. 212. And where a tenant for a year or for years holds over after the expiration of his term, with the assent of his landlord, the holding is implied to be from year to year. But where the term is for a shorter period than a year, according to the current of authorities, both English and American, the holding over is implied to be for a like term, and the notice to quit is determined thereby, and is sufficient if it equal the length of the term or the interval between the times of payment of rent. Taylor's L. & T., 478; Tyler's Eject. & Adv. Enj. 243; 1 Wash. Real Prop. 610; 1 Greenl. Cruise, 269, n. 2; Noel v. McCrary, 7 Cald. 627; Schuyler v. Smith, 51 N.Y. 309; 10 Am. Rep. 609.

And the reservation of rent and its payment at stated periods, as for a year or month is, in the absence of express agreement as to length of the lease, one of the principal criterions to determine the duration of the term. Taylor's L. & T., ss 56, 57, 61; Blumenberg v. Myers, 32 Cal. 93; Skaggs v. Elkins, 45 id. 158; Coffee v. Lunt, 2 Pick. 76; Rich v. Bolton, 46 Vt. 93; 14 Am. Rep. 615.

In the case at bar, the defendants below, as they themselves testify, refused to accept a lease for a year, or to consider their tenancy as one from year to year. The rent was a fixed sum per month, and paid each month in advance. Our statutes recognize a monthly tenancy as distinct from one from year to year. R. S., p. 336, s 18.

Moore, the first lessor, in his testimony says: 'They paid the rent monthly in advance. After the first term expired, I demanded a larger rent,' etc.

Since the only evidence as to the...