Speer v. Smoot

• Decision Date: 30 June 1908
• Citation: 47 So. 256,156 Ala. 456
• Parties: SPEER ET AL. v. SMOOT.
• Court: Alabama Supreme Court

47 So. 256

156 Ala. 456

SPEER ET AL. v. SMOOT.

Supreme Court of Alabama

June 30, 1908

Appeal from Circuit Court, Elmore County; W. W. Pearson, Judge.

Unlawful detainer by Emma L. Smoot against L. E. Speer and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Testimony for plaintiff tended to show that she let the property to Speer in the year 1903 or 1904 from month to month, and that Speer occupied until January 1, 1907; that the rent was paid by Speer up till November 6, 1906; that J. M. Smoot was the agent of appellee and her son, and had the collecting of her rent and the managing of her business; that about 10 days before November 1, 1906, he gave to Speer, appellant, a written demand to vacate the premises paid for by November 1 1906; that he collected the rent for the month of October 1906, and gave Speer a receipt showing that the rent of the house and land had been paid to the 6th of November, 1906. The evidence does not disclose any other written notice than the one above mentioned. The testimony for appellant tended to show a rental contract to January 1, 1907. Appellant requested the general affirmative charge, which was refused.

Frank W. Lull, for appellants.

Holley & McMorris, for appellee.

McCLELLAN J.

Unlawful detainer. Granting, as plaintiff insisted below, that the tenancy was from month to month, with the payments so payable, the plaintiff should not have been accorded a judgment, because the two notices necessary to enable her to maintain the action were not given the defendant. McDevitt v. Lambert, 80 Ala. 536, 2 So. 438; Ross v Gray Eagle Coal Co. (delivered at the present term) 46 So 564. These two essential (unless waived) notices are: "First, to terminate the tenancy, the possessory right, which must be equal in length to the intervals between payments; and, second, the demand required, after the termination of the possessory interest," by the statute. Code 1896, § 2127. Here a notice was given in October to terminate the tenancy on November 1st following. This notice was not of sufficient length under the authorities cited.

Besides the subsequent (to November 1st) acceptance of rent for tenure and use beyond, by several days, that date, was a waiver of the notice to quit, if such it was, on November 1st. 24 Cyc. pp. 1334, 1335 and notes. The proof shows, without dispute, that the demand specified in the statute cited before was not...