Williams v. Deriar

• Decision Date: 31 October 1860
• Citation: 31 Mo. 13
• Parties: WILLIAMS, Respondent, v. DERIAR, Appellant.
• Court: Missouri Supreme Court

31 Mo. 13

WILLIAMS, Respondent,

v.DERIAR, Appellant.

Supreme Court of Missouri.

October Term, 1860.

1. The possession of premises by a party under a mere permission to occupy for an indefinite period, no rent being reserved, is not a tenancy from year to year; three months' notice to quit is not necessary.

Appeal from Jefferson Circuit Court.

This was an action for an unlawful detainer commenced November 3, 1857. The defendant Deriar was a contractor for the construction of the St. Louis and Iron Mountain Railroad. In July, 1854, he obtained leave from the plaintiff to build a shanty on the land of the latter, which he was to occupy until the completion of the road. The road was to be completed by the contractors by January 1, 1856. Something was said between the parties as to the price to be paid by the plaintiff for the materials composing the shanty when the defendant should leave. On the 22d of May, 1857, the plaintiff gave the defendant notice to quit in thirty days. The road was finished in December, 1857. The plaintiff also claimed damages for timber cut by defendant.

The court, of its own motion, gave the following instruction: “That by the agreement between plaintiff and defendant for the use or occupancy of the land in controversy for a longer period than one year, the defendant acquired no right to retain the possession for any definite period, the said agreement not being in writing, and the defendant, after one month's previous notice to quit the premises, was liable to be turned out of the occupancy by a suit for forcible detainer; and if they find that by the agreement the right to occupy and use the land expired on the 1st of January, 1856, then he was liable to be turned out without notice. In either case the jury will find for the plaintiff, and assess his damages to any sum they may find the plaintiff has sustained in consequence of any waste of timber, &c., and for being kept out of the premises after the defendant became liable to surrender them as above.”

The court refused instructions asked by defendant. The jury rendered a verdict in favor of plaintiff.

Johnson & Beal, for appellant.

I. The court erred in considering Deriar as a tenant at will. He was not a tenant at will. (Kerr v. Clark, 19 Mo. 132; Ridgley v. Stillwell, 25 Mo. 570.) The year commenced about August 1, 1854. Plaintiff was bound to give him three months' notice to quit. (R. C. 1855, p. 1012, § 12.) Notice should have been served by May 1, 1857. It was not served until May 22, 1857. The notice was not sufficient. One month's notice was not sufficient.

Green & Fletcher, for respondent.

I. The judgment was for the right party. The instruction given fairly presented the law. The premises were let for more than a year; it amounted to a tenancy at will. Thirty days' notice was sufficient. (R. C. 1855, p. 807, § 5.) No rent was reserved. So the letting was for a definite time; hence no notice to quit was necessary. (R. C. 1855, p. 1012, § 14; 28 Mo. 65; 4 Kent, 114.) No demand in writing was necessary. (8 Cow. 13.) The instructions asked were properly refused.

NAPTON, Judge, delivered the opinion of the court.

In Kerr v. Clark, 19 Mo. 132, and in Ridgley v. Stillwell, 25 Mo. 570, it was held that a verbal lease for a longer period than a year, whether definite or indefinite, created a tenancy from year to year. In each of the cases an actual tenancy existed, upon a reservation of rent, and the rule is announced in reference to this state of facts. In the first mentioned case, there was an actual holding for upwards of two years, under a parol lease for five years, at a fixed rent, and the court say: “A parol lease, though by the statute of frauds declared to create a tenancy at will, has the effect of creating a tenancy from year to year, such being the established construction of the statute of 29 Char. II., ch. 3, from which our statute is taken. Such is the effect of the holding at an annual rent, as admitted in this case, for a period extending through parts of three years.” In Ridgley v. Stillwell, the tenant had been in possession for five years, and was beyond all doubt a tenant from year to year, unless the circumstance that the rent was payable monthly could be considered as changing the character of the tenancy. That circumstance was not so regarded, and it is said in the opinion of the court that “a tenancy at will must be created by express contract.”

Chancellor Kent observes in his commentaries (4 Kent, 112): “Estates at will, in the strict sense, have become almost extinguished under the operation of judicial decisions. Lord Mansfield observed that an infinite quantity of land was holden in England without lease. They were all, therefore, in a technical sense, estates at will; but such estates are said to exist only notionally, and where no certain term is agreed on, they are construed to be tenancies from year to year, and each party is bound to give reasonable notice of an intention to terminate the estate. The language of the books now is that a tenancy at will arises from grant or contract, and that general tenancies are constructively taken to be tenancies from year to year. If the tenant holds over by consent given, either expressly or constructively, after the determination of a lease for years, it is held to be evidence of a new contract, without any definite period, and is construed to be a tenancy from year to year. The moment the tenant is suffered by the landlord to enter on the possession of a new year, there is a tacit renovation of the contract for another year, subject to the same right of distress, and half a year's notice to quit must be given prior to the end of the term.”

These opinions are all expressed in reference to tenancies properly so called, where there is a rent reserved. To guard against their application to a different class of cases, the learned commentator adds, that “tenancies at will are not to be understood by this general language as not existing. A...