120 Ky. 478 | Ky. Ct. App. | 1905
Affirming.
Appellant was the tenant of appellee, having rented from it a storehouse on Fourth street in the .city of Louisville, originally for the term of one year. At the expiration of the year, the parties being unable to agree upon a renewal of the lease, it.was agreed that the tenant should continue in the possession and use of the premises as tenant by the month, but was to have one month’s notice before being required to quit. This was a tenancy from month to month, with the option to the tenant to renew at the beginning of each monthly period, unless he had had at least one month’s previous notice if the landlord should require the possession at the end of the month. In this proceeding for forcible detainer it was .conceded that the facts of the renting were as stated above-, and that the landlord gave to the .tenant at least one month’s notice to quit. The notice was verbal, not in writing.
Appellant’s contention is that it was a tenancy at will, or by sufferance, and that he was, therefore, under section 2326, Ky. Stats., 1903, entitled to one month’s notice in writing to quit. A tenancy at will is essentially undeterminate by its own terms. It will not end at any certain time by its own mere force. “A tenancy by sufferance is where a person who has originally come in possession by a lawful title holds such possession after his title has determined.” (Mendel v. Hall, 13 Bush, 232; Irvine v. Scott, 85 Ky., 262, 8 Ky. Law Rep., 911, 3 S. W., 163.) Such a tenancy arises generally where a tenant holds over- without the consent of his landlord, but merely through the inaction of the latter after the expiration of the terms of the lease. It was deemed the slightest possible estate at the common law, and
Counsel for appellant inquire to what state of case can sec. 2326 be applied, in view of secs. 2295 and 2296, if not to the one presented at bar? It will be observed that secs. 2295 and 2296 deal alone with tenancies by sufferance, and of those only that arise upon determination of a tenancy by contract for fixed and definite periods. Prom the definition heretofore given of tenancies by sufferance in general, it is obvious that there may be still another class of such tenancies where they arise by operation of law by the termination or expiration of an uncertain term; as, for example, a tenancy per autre vie, or a tenancy terminable upon the happening of a condition or other contingency — as where the tenant holds over after the death of the person for whose life he held, or holds after the happening of the contingency or condition by which his term is ended. In the class of cases last illustrated sec. 2326 would apply. But-we are clearly of opinion that the tenancy in this case was neither a tenancy by sufferance nor a tenancy at will. The duration of the term was certain; that is, the term was for one month. The fact that a lease for a fixed period gives to. the lessee an option of renewal will not affect its character as a lease for a fixed period. (Jones v. Kroll, 116 Pa., 85, 8 Atl., 857; Munson v. Wray, 7 Blackf. (Ind.), 403; Myers v. Kingston Coal Co., 126 Pa., 582, 17 Atl., 891.) The parties, of course, have the right to provide that the option should itself be subject to condition — such as
The court’s instruction to the jury, therefore, that they should find the defendant guilty of the forcible detainer if they should believe from the evidence that the plaintiff, the landlord, gave the defendant thirty days’ notice to quit previous to the terminal day claimed by plaintiff, to wit, April 10, 1903, was right; wherefore the judgment is affirmed.