Wilson v. Wood

• Citation: 36 So. 609,84 Miss. 728
• Court: Mississippi Supreme Court
• Decision Date: 23 May 1904
• Parties: ALLEN WILSON v. AGNES WOOD

36 So. 609

84 Miss. 728

ALLEN WILSON v. AGNES WOOD

Supreme Court of Mississippi

May 23, 1904

March 1904

FROM the circuit court of Warren county HON. GEORGE ANDERSON Judge.

Mrs Wood, the appellee, was plaintiff, and Wilson, the appellant was defendant in the court below. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

Reversed and remanded.

Green & Green, for appellant.

McLaurin, Armistead & Brien, for appellee.

[The reporter has been unable to find the briefs of counsel in this case.]

OPINION

TRULY, J.

This proceeding was instituted before a justice of the peace, under § 2547, Code 1892, to remove a tenant from the leased premises. Appellee filed an affidavit reciting that she was the owner of a certain lot therein described; that, as landlord, she had rented the same to appellant by the month at $ 6 per month from 1st January, 1901; that the tenant had wholly neglected to pay any rent, and there was due her $ 30, which the tenant refused to pay; that on the 16th day of May she notified the tenant, in writing, to pay the amount due for rent, or vacate the premises, but he refused to do either, wherefore she asked for issuance of proper process. This affidavit was subscribed and proceedings begun on the 23d day of the same month in which the notice to vacate was averred to have been given. Summons was issued as provided by law, and appellant made defense by filing denial under Code 1892, § 2552.

The drastic remedy granted by Code 1892, § 2547, can only be invoked in two classes of cases: (1) When the tenant wrongfully remains in possession of any part of the demised premises after the expiration of his term; (2) after default in the payment of rent pursuant to the agreement under which the premises are held, when satisfaction of the rent cannot be obtained by distress, and three days' notice in writing, requiring payment of rent or possession of premises, shall have been served on the tenant. The case made by this record cannot be sustained under either clause of the section on which it is based.

1. It cannot be sustained on the theory that the tenant was wrongfully holding possession after the expiration of his term, because the affidavit states explicitly that the letting was "by the month." As the term was not to expire at a fixed time, notice was, under § 2544, Code 1892, a prerequisite to the termination of the tenancy; and while the...