Ray v. Blackman

• Citation: 97 S.W. 212,120 Mo.App. 497
• Parties: RAY et al., Appellants, v. BLACKMAN, Respondent,
• Decision Date: 30 October 1906
• Court: Court of Appeal of Missouri (US)

97 S.W. 212

120 Mo.App. 497

RAY et al., Appellants, v. BLACKMAN, Respondent,

Court of Appeals of Missouri, St. Louis

October 30, 1906

Appeal from Stoddard Circuit Court.--Hon. Jas. L. Fort, Judge.

REVERSED AND REMANDED (with directions).

STATEMENT.--This is an action of unlawful detainer, predicated upon section 3321, R. S. 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 are 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 1st and terminating December 31, 1903, and the second parol contract was for a like term, commencing January 1st 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 31, 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 twenty-ninth 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 believe 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.

Judgment reversed and remanded.

N. A. Mozley, Ralph Wammack and H. S. Shaw for appellant.

(1) If defendant's version of the alleged renting is true, his contract was clearly void because not in writing and not to be performed within one year from the making thereof. Plaintiff's instruction numbered 1, prayed for, declares the law should have been given. R. S. 1899, sec. 3418; Butt v. Fox, 96 Mo.App. 437. Defendant's instruction numbered 1 is plainly erroneous. A verbal agreement to lease not to be performed within one year from the date of the making thereof would not entitle the lessee to the possession as against a bona fide purchaser of the land who, if he knew of the existence of the alleged lease at all, knew it was within the Statute of Frauds and void. (2) The fact that defendant was in possession under a former lease cuts no figure. It does not take his verbal contract not to be performed within a year out of the Statute of Frauds. Beiler v. Devoll, 40 Mo.App. 251. Cook v. Redman, 45 Mo.App. 397; Nally v. Reading, 107 Mo. 350.

D. R. Cox and Ed. Edmonds for respondents.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

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, R. S. 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 sixty days' notice in writing, under section 4109, R. S. 1899. Now it is true that the Statute of Frauds, section 3414, R. S. 1899, declares that an estate in or tenancy for the occupation of lands created by parol contract for a term of years shall have 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; Winters v. Cherry, 78 Mo. 344 at 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; Berrey v. Lindley, 3 Man. & G. 512.] And it is well settled that under such estate for a term of years, if either party desires to terminate the tenancy during the term and prior to its final determination by the provisions of the contract of letting, he may do so by giving to the other party the usual sixty days' notice in writing prior to the end of any current year, as is provided in section 4109, R. S. 1899. [Scully v. Murray, 34 Mo. 420; Grant v. White, 42 Mo. 285; Hosli v. Yokel, 58 Mo.App. 169; Davies v. Baldwin, 66 Mo. 577; 2 Taylor, L. & T. (9 Ed.), sec. 467; 1 Wood on L. & T. (2 Ed.), sec. 36.] This rule we understand to obtain with respect to the termination of the tenancy, at the end of any current year of such tenancies from year to year, created by parol under the operation of the Statute of Frauds, supra. We do not understand the rule requiring sixty days' notice to terminate the tenancy to obtain, however, when the tenancy expires by the limitation or time fixed by the contract of letting, for in such cases the tenancy expires by virtue of the contract itself and notice is dispensed with by the stipulation of the parties themselves contained in the contract fixing the determination of the term at a time certain. By the plain provisions of our statute, no notice to quit is necessary to terminate the tenancy when the term of lease is fixed to terminate on a day certain. The statute is as follows: "No notice to quit shall be necessary from or to a tenant whose term is to end at a certain time, or when, by special agreement, notice is dispensed with." [Sec. 4111, R. S. 1899.] There is nothing in this statute which limits its operation to leases in writing or to parol agreements for one year only or to be performed within one year from the making thereof, or, in other words, contracts not affected by the Statute of Frauds. By its plain provisions, it applies to terms that are "to end at a certain time." Indeed, the statute is merely declaratory of the common law on the subject. [Cobb v. Stockes, 8 East. 358; Young v. Smith, 28 Mo. 65-69.] As said by Judge SCOTT in the case last cited; the principle is: "When the term of a lease is to end on a precise day, there is no occasion for a notice to quit...