Myles v. Strange

• Decision Date: 22 December 1932
• Docket Number: 1 Div. 745.
• Citation: 145 So. 313,226 Ala. 49
• Parties: MYLES ET AL. v. STRANGE.
• Court: Alabama Supreme Court

145 So. 313

226 Ala. 49

MYLES ET AL. v. STRANGE.

1 Div. 745.

Supreme Court of Alabama

December 22, 1932

Rehearing Denied Jan. 19, 1933.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action of unlawful detainer by Mary C. Strange against Mary L Myles, E. S. Myles, and Norwood Myles. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

J. G Bowen, of Mobile, for appellants.

Gordon Edington & Leigh, of Mobile, for appellee.

GARDNER J.

Defendants occupied the store property here in question under a verbal agreement with the plaintiff. The rent was payable monthly in advance, $25 per month for the first six months, and $30 per month for the remaining six months if the tenants desired to occupy for that length of time. Defendantstook possession in September, 1930. The monthly rental was due on the 18th of the month, and was paid to January 18, 1931. There was not prompt payment in advance in January, 1931, though plaintiff testifies to a check sent her on January 27th, which she returned, and notice of termination of the right of occupancy and demand for possession was served on defendants January 30, 1931. The suit in unlawful detainer was instituted in the justice court March 9, 1931.

There was no testimony of any agreement that the right of possession would be forfeited upon nonpayment of the rent. "In the absence of a provision to such effect in the lease, non-payment of rent does not as a general rule work a forfeiture, and hence confers no right of re-entry." 36 Corpus Juris, 599; 35 Corpus Juris, 1065. Frequently, of course, the lease so provides for a forfeiture of possession upon a breach of covenants on the part of the tenant, including the payment of rent (Princess Amusement Co. v. Smith, 174 Ala. 342, 56 So. 979; Johnson v. Blocton-Cahaba Coal Co., 205 Ala. 373, 87 So. 559), but in the absence of such stipulation the foregoing rule obtains.

It would appear, therefore, that the evidence as to a failure of prompt payment of the rent (as to which there was much testimony) was immaterial. There does appear some evidence, however, in the testimony of plaintiff's husband tending to show an agreement on the part of the tenants to surrender possession upon thirty days' notice in the event plaintiff should consummate a sale of the property, and the notice of January 30, 1931, may be held referable thereto. But this was the only notice offered in evidence, and counsel for appellee insist that only one notice is required under provisions of section 8823, Code 1923. It has been the accepted rule, in cases of this character, that the plaintiff in unlawful detainer must, in order to maintain an action, first, show a termination of defendant's possessory interest by notice duly given, and, second, the demand required by statute (section 8001, Code 1923) after the termination of such interest. Speer v. Smoot, 156 Ala. 457, 47 So. 256; Ross v. Gray-Eagle Coal Co., 155 Ala. 250, 46 So. 564; Barnewell v. Stephens, 142 Ala. 609, 38 So. 662; McDevitt v. Lambert, 80 Ala. 536, 2 So. 438; Johnson v. Blocton-Cahaba Coal Co., 205 Ala. 373, 87 So. 559.

We do not construe section 8823, supra (new to the Code of 1923) as indicating a change in the rule which requires these two notices to be given in a case of this character. The default therein referred to, of course, means a default which justifies the termination of the possessory right under the contract, and the provision as to the ten days' notice is for the termination of such possessory interest, and will suffice in the absence of an express contract stipulation to the contrary. The entire section has reference to the notice of termination of the contract and the possessory right thereunder, and is without any connection with the ten...