Marshall v. Davis

122 Ky. 413 | Ky. Ct. App. | 1906

OPINION op the Court by

Judge Paynter

— Affirming.

On October 1, 1901, appellee rented to the appellant a two-story brick bouse on Fiftb street in the city of Louisville from October 25, 1901, to March 25, 1902, with the privilege of keeping the property until September 1, 1902. The rent was $20 a month, payable at the end of each month. The lease was in writing. The appellant continued to hold the property under the terms of the lease until July 14, 1902. The lease contained a provision, to the effect that if the rent was not paid according to the terms of the lease, the lessor had the right to treat it as forfeited, and recover possession of the premises. The appellant did not pay the rent for some months, when on July 14,1902, the appellee obtained a writ of forcible detainer for the recovery of the possession of the property, and a trial was had on July 18, 1902, and a judgment of eviction was entered against the appellant. He traversed the inquisition, and thus stayed the enforcement of the judgment of eviction. The traverse was to be tried on December 11, 1902. On December 10, 1902, the day before it was set for trial, appellant paid appellee $160, which paid the past due rent and rent of the premises until December 25, 1902, and as part of this arrangement the parties agreed that the traverse was to be dismissed, which was done. After the time the money was paid the appellant continued to live in the property without paying rent until January 27, 1903, when without giving appellant notice to surrender possession of the property, the appellee instituted another proceeding of forcible detainer to recover possession of the property. A trial of ihresulted in a judgment of eviction. The appellant traversed the inquisition, and on a trial in the circuit court under a peremptory insruetion of the court, the jury returned a verdict sustaining the inquisition.

It is insisted for appellant that the judgment of eviction in July, 1902, terminated, the tenancy existing, and severed the relation of landlord and tenant between the parties, and that the lease became merged in the judgment of eviction, and that thereafter he was a tenant by sufferance, and that under the statute the appellee was required to give him 30 days’ notice to vacate the premises before the right accrued to institute a forcible detainer proceeding.. The parties did not in express terms agree that the lease should remain in force and the judgment of eviction should be rendered ineffectual; still the payment by the appellant of past due rents and rent to accrue to December 25, 1902, and by -the agreement of the parties that the traverse was to he dismissed, the parties ini effect agreed that the judgment of eviction was set aside and no longer in force and the appellant continued to hold the premises under the lease. Her right to have the judgment executed ceased, and by the acceptance of the rent to December 25, 1902, she* waived the forfeiture of the lease.

The seventh clause of the lease reads as follows: “Should the lessee continue to occupy the premises after the expiration of said term, or after a forfeiture incurred, whether with or against the consent of the lessor, such tenancy will be in accordance with the terms of this lease, and in no event from year to year.” By this provision-it is expressly agreed between the parties that after the expiration of the lease or after a forfeiture incurred, whether with or against the consent of the lessor, the tenancy is to continue in accordance with the terms of the lease. The parties by the lease determined the relation of landlord and tenant should exist after a forfeiture of the lease. As the lease continued in force after the settlement in December, it was not necessary for. the appellee to- give the appellant notice to- vacate the property before instituting the forcible detainer proceeding. It is contended that because the appellee did not join issue on the traverse that the court should have sustained appellant’s motion to render judgment for him notwithstanding the verdict. As the motion was not made until after a judgment had been rendered and the motion and grounds for a new trial had been entered, it came too late. The court properly overruled the motion. Schieble v. Hart, 12 S. W. 628, 11 Ky. Law Rep. 607; section 7 of Freeman on Judgments.

The judgment is affirmed.

Petition by appellant for rehearing overruled.