Ray v. Blackman

• Decision Date: 30 October 1906
• Citation: 97 S.W. 212,120 Mo. App. 497
• Parties: RAY et al. v. BLACKMAN.
• Court: Missouri Court of Appeals

97 S.W. 212

120 Mo. App. 497

RAY et al. v. BLACKMAN.

St. Louis Court of Appeals. Missouri.

October 30, 1906.

1. FRAUDS, STATUTE OF—PAROL AGREEMENT FOR OCCUPATION OF LANDS FOR TERM OF YEARS — TENANCY FROM YEAR TO YEAR— LANDLORD AND TENANT.

Rev. St. 1899, § 3414, provides that an estate in or tenancy for the occupation of lands created by a parol contract for a term of years shall have the force and effect only of an estate at will. Held, that where such estates or tenancies are followed by entry of possession and payment of rent thereunder, the estate created is a tenancy from year to year by operation of law, rather than a tenancy at will.

2. LANDLORD AND TENANT—OCCUPATION UNDER PAROL LEASE—TERMINATION.

In a parol lease for a term of years, if either party desires to terminate the tenancy during the term and prior to its final termination under the contract, he may do so by giving the other party 60 days' notice in writing prior to the end of any current year, as provided by Rev. St. 1899, § 4109.

3. SAME—NOTICE TO QUIT.

Rev. St. 1899, § 4111, providing that no notice to quit shall be necessary from or to a tenant whose term is to end at a certain time, or if, by special agreement, notice is dispensed with, is not limited to contracts not affected by the statute of frauds.

4. FRAUDS, STATUTE OF—PAROL LEASE WITHIN STATUTE—VALID PROVISIONS.

Where a tenant entered and continued in possession and attorned to his landlord under a parol lease for a longer term than a year, which was void under Rev. St. 1899, §§ 3414, 3418, requiring such leases to be in writing, provisions of the contract with respect to repairs, the amount of rent reserved, and as to the time set for the termination of the tenancy, were valid and binding on the parties.

5. LANDLORD AND TENANT—UNLAWFUL DETAINER—NOTICE.

Where a lessee holds over after termination of his tenancy, the owner of the premises is entitled to maintain an action of unlawful detainer without first making a demand for the premises under Rev. St. § 3321, providing that when any person shall unlawfully and without force hold over any lands, tenements, or other possessions after termination of the time for which they were demised, or let to him or the person under whom he claims, such person shall be guilty of an unlawful detainer.

6. SAME—RIGHT TO SUE.

Rev. St. 1899, § 3352, provides that grantees and assignees of any lands, tenements, or other real possessions shall be entitled to the same remedies against persons guilty of forcible entry and detainer or unlawful detainer of such lands, before the grant or assignment as the grantor or assignor was entitled to by virtue of the chapter. Held, that where a tenant held over after the termination of his lease, before a conveyance of the property to plaintiff, plaintiff was entitled to maintain unlawful detainer though he had never been in possession of the property, and defendant had never attorned to him or recognized him as his landlord.

7. FRAUDS, STATUTE OF—LEASES NOT TO BE PERFORMED WITHIN A YEAR.

Rev. St. 1899, § 3418, provides that no action shall be brought to charge any person on a parol lease for a longer period than a year, or on a parol agreement not to be performed within a year of the making thereof. Held, that a parol lease made October 29, 1904, to commence January 1, 1905, and expire January 1, 1906, was not enforceable under such section.

Appeal from Circuit court, Stoddard County; Jas. L. Fort, Judge.

Action by M. J. Ray and others against S. J. S. Blackman. From a judgment in favor of defendant, plaintiffs appeal. Reversed, with directions.

This is an action of unlawful detainer, predicated upon section 3321, Rev. St. 1899. The complaint is in the usual form. The plaintiff had recently, prior to the institution of this suit, purchased the lands, the possession of which is involved, from one Slayton. The defendant, having been a tenant of Slayton, was holding over, and refused to surrender possession to the plaintiff. The material facts developed on the trial are as follows: On behalf of plaintiff, A. H. Slayton testified that he had owned the lands for several years and, as we understand the evidence, had, by two separate parol contracts, each for one year, demised the premises to the defendant, Blackman, for the years 1903 and 1904; that is to say, the first parol contract was for a term of one year, commencing January 1 and terminating December 31, 1903, and the second parol contract was for a like term, commencing January 1 and terminating December 31, 1904. The evidence is not entirely clear in this respect, however, and there may have been but one letting, which was a parol contract for two years, the term commencing January 1, 1903, and ending December 31, 1904. While, of course, the latter letting would fall within the statute of frauds, we do not regard the matter as material on the record before us inasmuch as upon either theory, it is conceded that the term ended on a day certain, to wit, December 31, 1904. That there were two separate parol lettings, each for one year, is our construction of the evidence, however. At any rate, the defendant was tenant to Slayton and his term expired as stated, December 31, 1904. He further testified that, on January 9, 1905, he (Slayton) sold and conveyed the lands to the present plaintiff, and that the defendant was holding over at the date of the sale without authority, he having no contract, verbal or otherwise, for the year 1905. The defendant, Blackman, testified that he rented the farm from Slayton under a verbal contract, or contracts, for the year 1903 and the year 1904, up to and including December 31st of the last-named year and made, as he and several witnesses in his behalf related, a verbal contract of date October 29, 1904, with Slayton whereby he claims to have rented the premises for another year, to wit, 1905. Quoting from the record, defendant's testimony on this point is as follows: "On the 29th day of October, 1904, on the farm near Bernie, Missouri, I talked with Slayton about renting it for another year and on that date I made a contract to rent the place for a term beginning January 1, 1905, and ending January 1, 1906. It was a verbal contract. There was no writing." It is proper to say here that Slayton denied having made the contract mentioned or any other contract for the year from January 1, 1905, to January 1, 1906. The plaintiff requested and the court refused the following instruction: "The court instructs the jury that the contract under which defendant claims possession of the premises in suit, for the year 1905, if made at all, was a verbal contract or lease and, under the proof, was entered into on the — day of October, 1904, and you are instructed that said contract or lease is within the statute of frauds, because not to be performed within one year from the making thereof, and is null and void, and your finding will be for the plaintiff." To which action of the court the plaintiff saved his exceptions. On behalf of defendant, the court gave several instructions to the jury on the theory and to the effect that if the jury believed from the evidence that the defendant rented the farm as claimed by him from Slayton by a parol contract during the year 1905 for the term commencing January 1, 1905, and ending January 1, 1906, and prior to Slayton's sale of the farm to plaintiff, then the verdict should be for the defendant. The verdict and judgment were for the defendant, and plaintiff appeals.

Mozley & Wammack, for appellants. D. R. Cox and Ed. Edmonds, for respondent.

NORTONI, J. (after stating the facts).

1. It appears from the uncontroverted evidence that the defendant was in possession of the premises under a parol contract whereby the term expired December 31, 1904. It is not shown in the case that either the plaintiff or his grantor, Slayton, had given defendant notice to quit, nor is there a showing that demand had been made on him for the surrender of the premises prior to the institution of the suit as contemplated under the second provision of section 3321, Rev. St. 1899, in relation to unlawful detainer. In this state of the record, the question presented is: Is plaintiff entitled to recover in the absence of a showing of either notice to quit or demand for possession? It is suggested that if the letting of the premises for the years 1903 and 1904; that is, from January 1, 1903 to December 31, 1904, was had by parol contract for a term of two years, the defendant having entered into possession and attorned to the landlord thereunder, that then, under the operation of the statute of frauds, there was created a tenancy from year to year, the termination of which necessitated 60 days' notice in writing, under section 4109, Rev. St. 1899. Now, it is true that the statute of frauds, section 3414, Rev. St. 1899, declares that an estate in, or tenancy for, the occupation of lands created by parol contract for a term of years shall have the force and effect only of an estate at will; when such estates or tenancies are followed, however, by entry of possession and payment of rent thereunder, the statute is construed to create by operation of law a tenancy from year to year rather than an estate at will, according to the strict letter of the enactment, and, therefore, on this theory of the evidence, the tenancy is one from year to year. Kerr v. Clark, 19 Mo. 132; Ridgley v. Stillwell, 28 Mo. 400; Goodfellow v. Noble, 25 Mo. 60; Williams v. Deriar, 31 Mo. 13; Scully v. Murray, 34 Mo. 420, 86 Am. Dec. 116; Winters v. Cherry, 78 Mo. 344-347; Tiefenbrun v. Tiefenbrun, 65 Mo. App. 253; Davies v. Baldwin, 66 Mo. App. 577; Hosli v. Yokel, 58 Mo. App. 169; Delaney v. Flanagan, 41 Mo. App. 651; Adams v. City of Cohoes, 127 N. Y. 175, 28 N. E. 25; Coudert v. Cohn, 118 N. Y. 309, 23 N. E. 298, 7 L. R. A. 69, 16 Am. St. Rep. 761; Berrey v. Lindley, 3 Man. & G. 512. And it is well settled that under such estate for a term...