96 Mo. App. 437 | Mo. Ct. App. | 1902
This is an action of unlawful detainer. Tbe verdict in tbe trial court was, on perempttory instruction, for plaintiff. On motion of defendant this was set aside and a new trial granted. Plaintiff appealed from the order granting a new trial.
The facts necessary to state are these: Defendant rented a farm of Hale and Wilson by verbal lease for one year, beginning March 1, 1900, and ending March 1, 1901. In November, 1900 defendant, by verbal lease, again rented the place of them for the following year, beginning March 1, 1901, and ending March 1, 1902. After defendant had entered upon his second year, viz., in May, 1901, Hale and Wilson sold the farm to the plaintiff and defendant attorned to him" and paid him a part of the annual rent due under the last lease aforesaid. A few days after the end of the-time of the second letting, to-wit, on March 6, 1902,. plaintiff begun this action.
Plaintiff did not give defendant sixty days’ notice to quit, and the sole question presented by the case is, was a notice to quit necessary? We have not been cited to a case in this State on that question. The view of the trial court as evidenced by an instruction for plaintiff, was that it was not. But that court came to a different conclusion as is evidenced by granting the new trial.
That our answer to that question may be fully understood, it will be necessary to consider the nature of the tenancy as it may be affected by the statute of frauds first stating that in a lease for time certain, no notice is necessary. If time is not mentioned, notice is necessary. Young v. Smith, 28 Mo. 85. A verbal lease for not more than a year is not invalidated by the statute of frauds. Hoover v. Pacific Oil Co., 41 Mo. App. 317. And, therefore, this lease being for a
It is only invalid because the period of its duration is beyond the time allowed by the statute to verbal leases. In all other respects the provisions of'the lease are valid and it only needs a period of duration to become effective. That element is furnished by entry and payment of annual rent as agreed. The law then gives a duration or period of from year to year, that is to say, the lessee becomes a tenant from year to year. Judge Napton stated in Williams v. Deriar, 31 Mo. 13, that it was “well settled that in cases of verbal leases for more than a year, which the statute declares leases at will, and which entry and payment of rent convert into tenancies from year to year, that the stipulations of the contract, as to repairs, as to the amount of rent, as to the time when the tenant must quit, are still enforced.” What does the expression L'as to the time when the tenant shall quit mean? It means that the time set in the invalid verbal lease for the ending of the term governs, unless, before.the ending of the term it is terminated by proper notice at the ending of some yearly period. And since the tenancy is one from year to year and must terminate at the end of some yearly period, it follows, that such year to year, tenancies are always good for at least-one year. It will be seen from this that if the term, as fixed by the invalid lease, is one year, it terminates at that time without notice.' If the term is for several years, then either party may terminate it by proper notice at the end of any yearly period; but if it is held until the end of the time fixed in the lease it terminates without notice. 2 Taylor’s Landlord and Ten.,
In the Tress case the invalid lease was for three years and it was held that the lessee did not have a tenancy for three years, “but a tenancy from year to year, which during that time, is determinable by a half year’s-notice. If he stays to the end of the time, then, by agreement of both parties, he goes out without notice.” In the Berry case, the invalid lease was for five and one-half years and Tindal, C. J., said that “either party was at liberty to put an end to the tenancy without notice in the event of the whole- of the period of five years and a half being suffered to run out.” Coliman, J., said in the same case that, “a party who enters under an agreement void by the statute of frauds, becomes by that statute tenant at will to the owner, and the tenancy described in the statute as a tenancy at will has since been construed to enure as a tenancy from year to year. But such tenant may quit without notice, and be ejected without notice, at the expiration of the period contemplated in the agreement.” Maulé, J., in the same case said, “that the defendant became tenant to the plaintiff from year to year, for so long a time as they should respectively please, determinable at the end of any year at a half year’s notice, the defendant to go out at the end of five years and a half without notice. ’ ’ In Devenish v. Moffatt, Lord Campbell said that, “we think the tenancy created from year to year must be understood to continue only during the three years, liable to be determined during the three years by a notice to quit, and expiring at the end of the three years by efflux of time. ’ ’
The result of these authorities is that in any case of entry and payment of rent under a lease made invalid by the statute of frauds, the agreement in such lease for its termination will bind the parties if the
It is scarcely necessary to state, in conclusion, that we have treated of tenancies from year to year. A letting for a less period than a year and payment of rent accordingly, say from month to month, would create that sort of tenancy; and what we have said herein could be applied to that hind of case.
The new trial should not have been granted and the order to that effect will be reversed and the cause remanded with instructions to reinstate the verdict.
