Opinion
No. 33197.
May 2, 1938.
LANDLORD AND TENANT.
Plaintiffs could not maintain an action of unlawful entry and detainer for the possession of a filling station and for rent where evidence did not show that defendant was in possession when action was begun or when he was in possession, if at all, during period for which rent was claimed to be due, or that right of action accrued within 12 months before action was brought, as required by statute, and where evidence showed that another person was in possession and that he had paid rent by giving his personal checks (Code 1930, section 3456).
APPEAL from the circuit court of Tishomingo county. HON. THOS. H. JOHNSTON, Judge.
Brewer Hewitt, of Jackson, for appellants.
The record shows without conflict that the property was leased to the defendant for five months at a specified monthly rental. It further shows that after the expiration of the time stated in the contract the tenant held over and continued to pay the specified monthly rental up until within eleven months of the filing of the suit, and that within four months of the filing of the suit made an additional payment on the rent. So without a doubt appellants were not deprived of the possession of the property until notice was given to the tenant to vacate, and the tenant failed to comply therewith.
The record shows, without conflict, that the property was leased to the defendant, and that during the period covered by the lease, one Ward Moser occupied the premises and paid the rent as agent for the defendant, and that the same Moser continued to make payments up until a few months before the action was filed. The record also shows that the defendant made a payment on the rent within less than twelve months of the time of filing the suit.
Clark Clark, of Iuka, for appellee.
Unlawful detainer is a possessory action.
Section 3456, Code of 1930, provides "anyone deprived of the possession of land by force, intimidation, fraud, stratagem, stealth, and any landlord, vendor, vendee, mortgagee, or trustee, or cestui que trust, or other persons against whom the possession of land is withheld by his tenant, vendee, vendor, mortgagor, grantor, or other persons, after the expiration of his right by contract, express or implied, to hold possession . . . shall at any time within one year after such deprivation or withholding of possession, be entitled to the summary remedy herein prescribed."
Appellants relied on a written contract which expired on the first day of December, 1935, and if this is true the suit not having been brought until the 13th day of November, 1937, more than one year had elapsed from the termination of the contract to the beginning of the suit and that the appellants were therefore barred by said section, supra, from bringing an unlawful detainer action because not brought within one year after the deprivation, etc.
Robinson v. Boggan, 97 Miss. 27, 52 So. 705; Walton v. Wall, 110 Miss. 361, 70 So. 549.
This is an appeal from a judgment against the plaintiffs below, J.J. Coman and Innis Alexander, in an action of unlawful entry and detainer instituted in a court of unlawful entry and detainer on the 13th day of November, 1937, for the possession of certain described property constituting a filling station in the town of Iuka, Miss., and for rent in arrears in the sum of $225.
A contract between J.J. Coman and Innis Alexander, parties of the first part, and J.C. Jourdan, Jr., party of the second part, was entered into July 1, 1935, which reads as follows: "This agreement entered into this day between J.J. Coman and Innis Alexander, parties of the first part, and J.C. Jourdan, Jr., party of the second part. The parties of the first part, this day rents to J.C. Jourdan, Jr., party of the second part the garage on the corner of Block 12 of the Terry's survey of the town of Iuka, Tishomingo Co., State of Mississippi, for period of five months, beginning July 1st, 1935, and ending on the first day of December, 1935, for the sum of thirty dollars per month, payable on the first day of each month. Said payments to be made to Mrs. Celia Fulkerson. Witness our signatures, this the 1st day of July, 1935.
"[Signed]
"J.J. Coman, "Innis Alexander, "J.C. Jourdan, Jr."
An itemized account of rent claimed was filed, showing for the month of December, 1936, $30; and through June, 1937, $30 for each month, amounting to $210.00, upon which there was a credit dated July 2, 1937, of $105, with a balance of $105; then for July, August, September, and October, $30 for each month, making a total of $225 claimed to be due.
It does not appear from the testimony that J.C. Jourdan, Jr., was in possession of the premises at the time of the institution of the suit, nor did it appear what month he was in possession, if at all, during the life of the account sued on. It appears from the evidence that Mr. Ward Moser was in possession of the property, operating a filling station, and that payments of the rent had been made by his giving his personal checks therefor. It does not appear in what capacity he was in possession, or whether he was the agent or employee of Jourdan or had any other relation with him; nor does it appear that he had any contract with the plaintiffs, though it seems that he had paid practically all the rent which had been collected upon the property. The proof does not show that the right of action or possession accrued within 12 months prior to the institution of the suit; nor does it appear that Jourdan was in possession at the time of the institution of the suit; on the contrary, it would seem that Ward Moser was in possession, but in what capacity is not apparent.
There was a total failure to establish a right of action, either of possession of the premises within the 12 months required by statute, or that the rents claimed to be due accrued during any period while J.C. Jourdan, Jr., was in possession. Section 3456, Code 1930, requires that action must be commenced within 1 year from the time the right to possession accrued; and in Robinson v. Boggan, 97 Miss. 27, 52 So. 705, it was held that the action must be brought within 1 year after the right accrues; and in the case of Walton v. Wall, 110 Miss. 361, 70 So. 549, it was held that the defendant must be in possession before the plaintiff can maintain an action against him; consequently the court below was correct in holding that the plaintiff had not established his right.
It is not necessary here to decide that the court of unlawful entry and detainer could not render judgment for rents in excess of $200. That court is a special court and not a court of justice of the peace. The judgment of the court below will therefore be affirmed.
Affirmed.