67 Tenn. 193 | Tenn. | 1874
delivered the opinion of the court.
It appears from the proof that Drake had leased the land to Hammond by parol for three years, and ■on the 9 th of December, 1868, that being the first
On the trial of the cause, the Circuit Judge instructed the jury that Dean could not defend himself against an action by Hammond by denying his title, unless he had been ousted or expelled from the possession by some one who had a better right than his (Hammond), and had given him notice accordingly, which would be a defense; and if they found, in this case, that Drake, the original lessor, had taken the possession from Dean under a superior title or right, and that Dean had notified plaintiff of that fact, and disclaimed to hold under him, that then new rights intervened, and the jury could look to this state of facts in defense. To all which Hammond, the plaintiff, excepted, and requested the court to instruct the jury that Dean, the defendant, could not protect himself by surrender or attornment to another, unless he was under legal compulsion to do so, or had been actually evicted; but the court refused to give the instruction.
The instructions given are objected to as erroneous, as well as the refusal to give.the instruction requested.
It appears in proof that Drake had leased the (and to Hammond for a term of three years, but this was a parol contract, and we are furnished with no 'evidence as to its terms. This contract was void l under the statute of frauds (Code sec. 1758), but good for one year; and if the tenant hold over more than one year, he becomes tenant from year to year. Duke
Before the expiration of Lis first year, Hammond sub-let to Dean for the residue of his term; Dean went into possession, and so continued until he surrendered the possession to Drake, some time in July, 1869. The relation between Drake and Hammond must be construed to be that of tenancy from year to year, as Hammond’s assignee, Dean was allowed by Drake to hold possession after the termination of the first year, without notice to Hammond, that the tenancy was to terminate at the end of the first year.. As Drake suffered the second year to commence without putting an end to the relation, Hammond was entitled to the whole of that year’s rent, and the-tenant of Hammond could not determine the estate-after the year commenced. Shepperd v. Cummings, 1 Col., 354. After Hammond became entitled to hold the land for the second year, by reason of Drake’s failure to notify him before the first year expired, his assignee, Dean, could not attorn or surrender to Drake without eviction, and thereby acquire a title under which to dispute Hammond’s right to the rent. In such case it was immaterial whether Dean gave notice to Hammond or not. He was estopped by ¡his-contract with Hammond from disputing his title, a!nd Drake was estopped, by his failure to terminate the tenancy at the end of the first year, from disputing Hammond’s title, for the second year. Hammond
The instructions given to the jury by the court were erroneous, and the judgment is reversed.