198 Ky. 294 | Ky. Ct. App. | 1923
Opinion of the. Court by
-Affirming on 'both, the original and cross appeals.
Appellee and plaintiff below, Mrs. Inez B. Rhea, is the only child and heir at law of W. E. W. Rhea, deceased. The latter, in the year 1913, by verbal contract
Appropriate, pleadings made the issues and the causes were. consolidated, the court trying the forcible detainer proceedings, as hereinbefore stated, but the issue as to the reasonable rent for'the year 1919. was. submitted to a jury and it returned a verdict, under the instructions of the court, in favor of plaintiff for the sum of thirteen hundred' dollars; whereupon, plaintiff moved the court for a judgment in her favor for the sum of twenty-six hundred dollars, but that motion was overruled and a judgment was rendered for the amount of the verdict. Defendant’s motion for a new trial was overruled and he prosecutes this appeal and plaintiff has moved for and obtained a cross appeal complaining of the action of the court in declining to render judgment in her favor for double the amount of the verdict.
It is first insisted by learned counsel for defendant that although the lease contract under which defendant claims the right of occupancy was one which the statute of frauds required to be in writing and signed by the party to be charged, yet the statute only provides that “No action shall be brought to charge any person” on any of the contracts therein required to be in writing, and that there is no effort in this, case to charge any one on the contract involved, and they, therefore, cite the oases from this court of Weber v. Weber, 25 Ky. L. R. 908; Dean v. Cassidy, 88 Ky. 572, and Beckett Oil Co. v. Becker, 165 Ky. 818, holding that acts done in the execution of a verbal contract which the statute requires to be in writing are not void and that the defendant .may rely on .such verbal contract in justification of 'his entry upon the premises so as to relieve him of the charge of trespassing thereon; and, further, that equitable rights may arise from such attempted execution of the contract but which are not necessary for us to state in this opinion. It will be observed in those opinions that none of the equitable rights growing out of such circumstances may be relied on if the purpose is to enforce the contract as verbally entered into. When the latter is attempted
It is next insisted, and which is the chief point relied on for a reversal of the judgment, that defendant was a tenant of the premises “from year to year” and that he was entitled to six months’ notice to surrender it. That insistence is bottomed on chapter 56, section IV of article 1 of the second volume of the Revised Statutes of Kentucky by Stanton, 1860, which subsection says: “Either party may terminate a tenancy from year to year, by giving notice, in writing, of his intention to terminate the same, of not less than three months before the end of the’ year if for lands in a city or town, and six months
The relied on section from the Revised Statutes, supra, was omitted from the first and all succeeding editions of the general statutes compiled by Bullock, Nesbitt and Craddock, in 1873, and in the same year the legislature by the enactment of chapter 1011 (page 53, vol. 1, Acts 1873), entitled ‘An act to adopt the General Statutes,” provided that the chapters thereof from one to the last one, inclusive, “shall become the law of the land, to take effect on the first day of December, 1873, except such parts thereof as to which a definite pro
On October 13, 1874, the opinion in the case of Broaddus v. Broaddus, 10 Bush 299, was handed down by this court, and there was involved in it the question as to the effect of the adoption of the General Statutes upon all statutes of general application contained in the Revised Statutes and which had been omitted from the General Statutes as adopted by the act of 1873. The special point involved in that case was whether certain provisions of the Revised Statutes with reference to appeals to'this court in will contest cases were repealed by the adoption of the General Statutes, which latter did not contain the particular provision of the Revised Statutes. In holding that the adoption of the General Statutes with such provisions omitted therefrom had the effect of repealing them the court in that case said:
“When a section in the Revised Statutes has been omitted in the General Statutes, or any change made, however slight, in a general law, the whole law as found in the Revised Statutes on that subject must be considered and treated as repugnant to the provisions of the General Statutes, as in construing one section of a general law the object and intention of the whole law must be considered." It never was contemplated by the revisers, or by the legislature in adopting these statutes, that both the ,old and new statutes should be considered together in determining what the law is.
“The General Statutes must be regarded as containing a complete system of laws, and in so far as they treat of any general law, whether under the title of ‘Wills,’ ‘Executors and Administrators,’ ‘Husband and Wife,’ ‘Guardian and Ward,’ etc., it must be considered and treated as all the statute law on the subject indicated by the title; and if the system is defective in any of its parts, the remedy is to be found in legislative amendments.” ■
The doctrine therein announced has'been followed in a number of succeeding cases, as will be seen in vol.
If we should construe the occupancy of defendant in this case as being one at sufferance, or at will, then he was not entitled to but thirty days’ notice to remove. On the other hand, if we should class his tenancy as coming within the provisions of section 2295, then no notice to him to remove was required of the landlord, since in that case the latter could remove him by proceedings instituted for the purpose at any time within ninety days after the expiration of the current year of occupancy. Forty-five days’ notice was given in this case and the forcible detainer proceeding, which was begun before the expiration of the ninety days was, therefore, maintainable. Hence, the court did not err in adjudging defendant guilty of the forcible detainer.
On the cross appeal it is> strenuously insisted and not without reason and plausibility that plaintiff was entitled to collect double rent under the statute, supra, the provisions of which, as will be observed, are highly penal, but with which the courts have no concern as long as the provisions do not invade any constitutional inhibition. It does not do so in this case, and it is the duty of the courts to enforce it in all cases strictly coming within its provisions. However, like all highly penal statutes, they will not be enforced unless the facts of the particular case in which they are invoked come strictly within the purpose of the legislature in enacting them.
The case of Jones v. Taylor, 136 Ky. 39, is the second appeal of the case of Jones v. Commonwealth, supra, and is one the facts of which are very similar to those found in this case. The double rent provision of the statute was there sought to be enforced. It was therein pointed out that our statute on the subject was copied after an English statute of George II, which, however, gave double rent only when the tenant “willfully held over.” The English courts, as shown in that opinion, declined to apply the provisions of the statute where the tenant acted bona fide and in good faith believed that 'he was entitled to occupy, and where it did
Learned counsel for plaintiff vigorously attack the soundness of the rule announced by the Aull and the Jones cases, and, as we have hereinbefore intimated, not without reason and plausibility, but feeling ourselves bound by thbse cases, and not being convinced of their unsoundness to such an extent as would authorize our overruling them, we have reached the conclusion that the court did not err under the facts of this case in declining to adjudge double rent against defendant.
Wherefore, the judgment is affirmed both on the original and cross appeals.