Ross v. Gray Eagle Coal Co.

• Decision Date: 14 May 1908
• Parties: ROSS v. GRAY EAGLE COAL CO.
• Court: Alabama Supreme Court

46 So. 564

155 Ala. 250

ROSS v. GRAY EAGLE COAL CO.

Supreme Court of Alabama

May 14, 1908

Appeal from Circuit Court, Shelby County; John Pelham, Judge.

Action by the Gray Eagle Coal Company against George Ross. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Frank S. White & Sons and J. B. Garber, for appellant.

Tillman Grubb, Bradley & Morrow, and M. M. Baldwin, for appellee.

McCLELLAN J.

The appellee, the landlord, brought this action of unlawful detainer against the appellant, the tenant, to restore the possession of a tenement house. The rental contract was "by the month for the rental sum of $6 per month, under the agreement that one-half of said sum should become due and payable at the expiration of every two weeks thereof." It was, in writing, agreed in the cause "that, if the court shall hold that the words of said notice are not sufficient in law to terminate said relation of landlord and tenant, then it shall render judgment for the defendant; but, if the court shall hold that said words of said notice are sufficient to terminate said relationship, then each and every other fact necessary to authorize a recovery for the plaintiff is admitted." The notice mentioned above from the appellee to the appellant, was, thus expressed: "You are hereby notified to vacate our house at once. Trust it will not be necessary to enforce this."

Where the contract of rental or leasing does not by its terms terminate the tenancy, depriving, thereafter, the tenant of any possessory interest in the premises, two notices are unless waived, essential to enable a complaining landlord to maintain unlawful detainer. The statute (Civ. Code 1896, § 2127) provides the demand, one of the notices, requisite "after the termination of the possessory interest" of the tenant. The office of the other notice is to terminate the relation. McDevitt v. Lambert, 80 Ala. 536, 2 So. 438. Of these two notices, the one in question is referable only to the former, the statutory demand. It notifies the tenant to vacate the house occupied by him, and that at once. At the time when the notice was dated and served, viz., July 5, 1907, the tenant was entitled to the possession of the premises until July 31, 1907, regardless of the sufficiency vel non of the notice given after the beginning of that month. Yet the notice required immediate vacation of the premises, notwithstanding the stated right of the tenant to the possession. In other words, the notification given by this paper demanded, by its very...