Regan v. Rogers

• Decision Date: 28 July 1942
• Docket Number: No. 8395.,8395.
• Citation: 27 A.2d 302
• Parties: REGAN v. ROGERS.
• Court: Rhode Island Supreme Court

27 A.2d 302

REGAN

v. ROGERS.

No. 8395.

Supreme Court of Rhode Island.

July 28, 1942.

Exceptions from Superior Court, Providence & Bristol County; Mortimer A. Sullivan, Judge.

Action of trespass and ejectment by William Regan against Fred R. Rogers to recover possession of a certain cottage. The jury returned a verdict for the plaintiff, and the trial justice denied the defendant's motion for a new trial, and the defendant brings exceptions.

Defendant's second exception sustained.

Francis A. Manzi, of Providence, for plaintiff.

William H. McSoley and William H. McSoley, Jr., both of Providence, for defendant.

BAKER, Justice.

This is an action of trespass and ejectment to recover the possession of a certain cottage in the town of Johnston. The case was heard in the superior court by a jury which returned a verdict for the plaintiff. Thereafter the trial justice denied the defendant's motion for a new trial, and the latter then duly prosecuted his bill of exceptions to this court.

It appears from the evidence that the plaintiff purchased the property in question by deed dated May 9, 1940, and recorded on May 15, 1940. The defendant had been living in said property for many years as a tenant, from month to month, of the plaintiff's grantors. On said May 9 the defendant's rent, which was at the rate of $15 per month, was considerably in arrears. On said May 15, after the plaintiff had become the owner of the property, he had his attorney write the defendant a letter bearing that date and reading as follows: "There has been a change of owner in the property occupied by you and I wish to notify you that on the first day of each and every month I shall call at your home for payment of rent to me as agent for the new owner." This letter was signed by the plaintiff's attorney.

The evidence further shows that the defendant received this letter on May 16,

1940; that he knew on the day before that the property had been sold to someone, and that he found out that it was the plaintiff who had purchased the property. In fact, it appears that by writ dated May 15, 1940, the defendant brought an action at law against one of the plaintiff's grantors in relation to the sale of the property to the plaintiff, and in said writ referred to the plaintiff by name as the purchaser of said property.

Thereafter an agent of the plaintiff visited the property several times in order to collect the rent, but he was never able to gain admittance to the house or to find the defendant there, although the latter's wife was interviewed by the agent. No rent whatever was paid to the plaintiff by the defendant who, however, continued to occupy the property without communicating with the plaintiff in any way. Finally, the plaintiff had the present writ issued on September 24, 1940, apparently relying on the fact that on said date the rent was more than fifteen days in arrears. G.L. 1938, chap. 454, § 1.

The defendant's first exception is to the refusal of the trial justice to direct a verdict in his favor at the close of the plaintiff's case. At that time the defendant had not closed his own case. The denial of such a motion under those circumstances is not open to exception. Solomon v. Shepard Co., 61 R.I. 332, 200 A. 993. The first exception is therefore overruled.

The defendant's second exception is to the refusal of the trial justice to grant a like motion at the close of all the evidence. The defendant contends that such evidence showed that he was either a tenant at sufferance or possibly, after receiving the letter hereinbefore set out, a tenant at will of the plaintiff. In either case under the statute he would be entitled to a notice to quit before he could be ejected. G.L.1938, chap. 453, § 1. No such notice having been proved in the instant case the defendant maintains that the plaintiff, as a matter of law, should not prevail and that the above motion should have been granted.

The plaintiff, after purchasing the property, did not elect, as he might have, to proceed at once against the defendant as a trespasser. See Providence County Savings Bank v. Hall, 16 R.I. 154, 13 A. 122. Instead, the plaintiff permitted the defendant to remain in the property. In Johnson v. Donaldson, 17 R.I. 107, 20 A. 242, which was an action of trespass and ejectment, the court held that the defendant, who was the grantee of a mortgagor's equity of redemption, and who had entered into possession of the property before the sale thereof under the mortgage, was, after such sale, a tenant by sufferance and under our statute entitled to a notice to quit before being sued in trespass and ejectment.

At page 109 of its opinion in 17 R.I., at page 243 of 20 A. the court uses the following language: "It appears to be the policy of our statute to secure to every person holding over after the expiration of an estate which he has rightfully come into possession of by act of a party, unless he be a lessee for a definite term, a clear opportunity to leave it without suit for his ejectment, by requiring the owner or lessor to give him notice to quit, as prescribed, before bringing any such suit against him." See Taylor v. O'Brien, 19 R.I. 429, 34 A. 739; Noorigian v. Greenfield, 52...