17 Mo. App. 669 | Mo. Ct. App. | 1885
delivered the opinion of the court.
This is an action for unlawful detainer. The only contention between the parties is whether the premises in controversy are held by defendant as tenant from month to month, or as tenant from year to year. The following facts were admitted on the trial by the parties respectively : That John Withnell, as owner, had made a writ
St. Louis, August 26th, 1884.
To (Theories A. Petzold: Take notice that your tenancy of city blocks 1535 and 1538, containing 8 91-100 acres, more or less, and known as Concordia Park, in the city •of St. Louis, Missouri, bounded north by Wyoming street, east by 2nd Carondelet avenue, south by Utah street, and west by Lemp avenue will cease, and you are hereby notified to vacate the .same one month from the first of September, 1884.
Marti-ia Gf. Withnell.
By Green & Lamotte, her agents.
The following facts, therefore, may be considered as conceded by the testimony: That the property consists of 8 91-100 acres in the city of St. Louis. That it did at the date of the lease and presumably at the date of the notice to quit, contain a dwelling and some other buildings. That it was fenced in whole or in part, contained fruit and forest trees, and might, but for the prohibition of the lease, be used for pasturage. That the written lease expired in June, 1879, and that the defendant held over after said date without any specific agreement as to the duration of his tenure, except in so far as the same can be gathered from his periodical payments of rent, or is determined by the law of 1869. Rev. Stat., sect. 8078.
Some additional testimony was offered by both parties, mainly on the question of monthly value. The additional testimony thus offered did not materially vary the admissions above made. The court, against defendant’s objections, admitted the notice to quit in evidence, and
It will be thus seen that two questions arise for our determination : 1st, Was the defendant, under the facts shown, a monthly tenant, regardless of the statute of 1869? 2nd, Was he a monthly tenant under the provisions of that statute ? It was decided in Kerr v. Clark (19 Mo. 132), that a parol lease, though by the statute of frauds declared to be a tenancy at will, has the effect of creating a tenancy from year to year, such being the established construction of the statute of 29 Car., II, Ch. 3, from which our statute is taken. This ruling was followed in Goodfellow v. Noble, 25 Mo. 61; Ridgely v. Stillwell, 25 Mo. 570; Ridgely v. Stillwell, 28 Mo. 403; recognized in Williams v. Deriar, 31 Mo. 15, followed in Scully v. Murray, 34 Mo. 421, and criticized but still followed as the settled rule in this state in Hammon v. Douglass, 50 Mo. 435. It was also recognized as the rule in Wilgus v. Lewis, 8 Mo. App. 339, and Insurance Co. v. National Bank, 71 Mo. 61, and must therefore be considered as settled beyond controversy.
Judge Bliss, in Hammon v. Douglass, supra, arguendo, mentions this qualification, that, “if after the expiration of the term in the written lease, the landlord shall receive an annual rent from an ordinary tenant, a yearly verbal lease or one from year to year may be implied. But if he shall receive a monthly rent, then the implied lease should be held from month to month.” This point was not necessarily involved in the decision of that cause, and the learned judge seems to have overlooked that the case of Prindle v. Anderson (19 Wend. 391), on which he based his dictum, was denied by the Supreme Court of this state expressly in Scully v. Murray, supra, where the case is referred to in its subsequent stage as Anderson v. Prindle, 23 Wend. 616. The rule in this state, touching tenures not falling within the provisions of the statutes of 1869, is in our opinion correctly stated thus : Where a tenant for years holds over with the consent of his landlord, his tenancy will be one from year to year, or for a shorter period according to
It results that the court could not in this instance imply a monthly letting, as a matter of law, from a monthly payment of rent alone, even if the evidence in regard to such payment would have been clear. It could do so still less, as the evidence is conflicting.
Whether the defendant was a monthly tenant under the provisions of the statute of 1869 ( Rev. Stat. 1879, sect. 3078), is purely a question of law, and therefore determinable by fixed rules of interpretation. That statute provides: “ All contracts or agreements for the leasing, renting, or occupation of stores, shops, houses, tenements, or other buildings, in cities, towns and villages, not made in writing signed by the parties thereto, or their agents, shall be held and taken to be tenancies from month to month, and all such tenancies may be terminated by either party thereto, or his agent, giving to the other party or his agent, one month’s notice in writing, of his intention to terminate such tenancy.” This section has reference to the leasing of property specially mentioned therein, and to no other. We know of no rule of law which would authorize us to extend its scope, so as to include all real property within the limits of cities, towns and villages. It does appear in this case that some buildings are located on the premises in controversy, but such buildings are neither let eo nomine in the lease, nor does it anywhere appear in the testimony that they were the essential object of the letting. On the contrary it does appear that the essential object of the letting was a piece of ground containing almost nine acres, fruit and forest trees, and designated by the parties as a park, which “Is a piece of ground within a city or town inclosed and kept for ornament and recreation.” (Webster.) It is a notorious fact that most farms have buildings upon them, and a fact no less notorious that
Our conclusion is that the property in controversy, under the facts disclosed, does not fall within the class ■covered by the statute of 1869, and that the court could not instruct for plaintiff on the ground that defendant was a monthly tenant under that statute. As in either view of the case the court was not justified in taking the ■question of the character of the defendant’s'tenure from the jury, its so doing was error, for which its judgment must be reversed and the cause remanded.
it is so ordered.