Opinion
No. 35651.
October 23, 1944. Suggestion of Error Overruled November 13, 1945.
1. LANDLORD AND TENANT.
Evidence sustained finding that landlord was entitled to possession of premises (Code 1942, sec. 948).
2. APPEAL AND ERROR.
Where tenant's appeal bond stipulated that, if judgment awarding landlord possession be affirmed, tenant would pay costs and value of the use of the land from time of taking appeal, and question of damages recoverable was not argued on appeal by either counsel, no judgment thereon would be rendered upon affirmance, but leave would be given to file motion for judgment accompanied by a brief, to which leave to reply would be given as well as leave to file rejoinder (Code 1942, sec. 948).
ON MOTION. (In Banc. Dec. 11, 1944.) [19 So.2d 917. No. 35651.]1. LANDLORD AND TENANT.
In action for possession of land, where defendant contended in trial court that he was not plaintiff's tenant, but had possession of and right to hold land under contract to purchase it, but court held to contrary and rendered judgment for plaintiff, plaintiff's interest in land was not limited to rent due, but covered all its value, so as to entitle her to award of 5 per cent. damages on such value after Supreme Court's affirmance of judgment (Code 1942, secs. 948, 1971, 1972).
2. LANDLORD AND TENANT.
On Supreme Court's affirmance of judgment against tenant in landlord's proceeding to recover possession of leased land, landlord is not entitled to remand of cause to court below for ascertainment of amount of damages covered by tenant's appeal bond, stipulating that he would pay damages for waste or injury to land after taking appeal, if judgment were affirmed, but any right or cause of action in landlord under such provision is enforceable only by original action on bond (Code 1942, secs. 948, 1165, 1166, 1971, 1972).
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
L.F. Easterling and P.Z. Jones, both of Jackson, for appellant.
This was a proceeding instituted under the landlord and tenant statute to remove the appellant from a tract of land in Hinds County, Mississippi. The solution to the issues involved depends upon whether the relationship of landlord and tenant existed between the appellant and appellee. The appellant in support of his contentions that the relationship of landlord and tenant did not exist exhibited a contract of sale for the purchase of the land, which contract of purchase was attacked by the appellee as being in violation of the statute of frauds. The appeal is from the judgment of the circuit court that the relationship of landlord and tenant existed and that the appellee was entitled to the possession of the land.
The county court, sitting as court and jury, found as a fact that J.C. Hodges was not the tenant of Mrs. Stella T. Jones and that the relationship of landlord and tenant did not exist between them within the purview and meaning of the summary proceedings contemplated for the relationship of landlord and tenant under Section 948 of the 1942 Code, and on this finding of fact sustained the plea of the defendant in the county court that the relationship did not exist and dismissed the proceedings. We respectfully submit that the learned circuit judge, on appeal of this cause, erroneously decided the proposition that the relationship of landlord and tenant existed because he, the circuit judge, found that the relationship of vendor and vendee did not exist under the purchase contract because the same fell within the statute of frauds.
It is our contention that even though this contract of sale is void under the statute of frauds, the non-validity did not ipso facto operate to create a relationship of landlord and tenant where the vendee had never agreed to the tenancy relationship for the year 1943.
If the relationship of landlord and tenant does not exist, then unlawful entry and detainer may be resorted to, but the procedure under Landlord and Tenant chapter must be strictly pursued.
Bowles v. Dean, 84 Miss. 376, 36 So. 391; Lockett v. Lockett (Miss.), 95 So. 741; Vansant v. Dodds, 164 Miss. 787, 144 So. 688.
In the instant case, it is admitted indirectly that the appellant had contracted to purchase the land in controversy and had paid a substantial part of the consideration. There was no agreement such as prevailed between landlord and tenant. The relationship from the moment the contract was made was that of vendor and vendee. The county court in these proceedings had no jurisdiction to adjudicate upon the title or the right to the title. It is not a question of whether the contract could be specifically enforced or not. It was a contract establishing the relationship of vendor and vendee. Under the statute of frauds it was not void. When this contract was made it ended the relationship that had previously existed of landlord and tenant and, by contract of the parties, established a new and different relationship, that of vendor and vendee with all of the correlative rights appertaining thereto.
Downing et al. v. Campbell, 131 Miss. 137, 95 So. 312; Harvey v. Daniels, 133 Miss. 40, 96 So. 746; Perkins et al. v. Swank, 43 Miss. 349; Anthony et ux. v. Bank of Wiggins, 178 Miss. 361, 173 So. 454.
The occupation of land under a contract for purchase does not make the occupant a tenant of the grantor during the time allowed for the purchase even though the contract for sale is not carried out. Therefore, no promise to pay rent for the use of the premises during such period will apply and the statutory process for a landlord to recover possession cannot be maintained.
Bowling v. Bowling (Miss.), 47 So. 802; McKissack v. Bullington, 37 Miss. 535; Moak v. Bryant, 51 Miss. 560; Clymer v. Powell, 56 Miss. 672; Pennington v. Richie, 102 Miss. 133, 58 So. 657; Rawleigh State Bank v. Williams, 150 Miss. 766, 117 So. 365; Hytken v. Bianca, 186 Miss. 323, 186 So. 624; Bush v. Fuller (Ala.), 55 So. 1000; 3 Thompson on Landlord and Tenant 99, Sec. 1079.
Under statutes authorizing the maintenance of summary proceedings against tenants who wrongfully hold over, it is essential to enable a person to maintain such proceedings that the conventional relation of landlord and tenant exists.
16 R.C.L. 1183, Sec. 706.
W.E. Gore, of Jackson, for appellee.
This action was instituted in the county court by the appellee here, who is the owner of the land here involved and was the landlord of the appellant, under the provisions of Section 948 of the Code of 1942, Section 2226, Code of 1930. There is no dispute as to the ownership of the land. The statute provides for the removal of a tenant holding over. There was a judgment in favor of the tenant in the county court. The circuit court reversed that judgment and entered judgment removing the tenant. This appeal was taken from that judgment.
The relation of landlord and tenant existed for several years, under contracts made first by Mr. Francis, agent of the appellee, and later by the husband of the appellee, Senator Howard Jones, who was her agent for the purpose of renting the land from year to year, but he was not authorized to sell the land to the appellant or any other person, so as to bind the appellee, under the provision of Section 264(c), Code of 1942, Section 3343(c), Code of 1930.
To establish the relation of landlord and tenant, the appellee relied and now relies on a written contract of lease, executed on December 15, 1941, for the year 1942, and upon the agreement, which the appellant induced Senator Jones to make for the appellee, whereby she waived her rent for 1943, in order to enable the appellant to obtain money from a Federal finance agency with which to make crops on the land in 1943. The appellant, at the trial, undertook to establish that the relation of landlord and tenant did not exist in 1943, because, as he claimed, he had a contract of purchase and sale of the land involved. To establish the contract, he introduced in evidence a written memoranda.
It is maintained here by the appellee that, since Senator Jones notified the appellant on December 1, 1942, at the time the appellant said he could not make the $425 payment then due under the alleged contract, that "your contract has ceased," the relationship of landlord and tenant then and thereafter existed between the parties. It is not claimed that any new contract was made. Under the alleged contract, the appellant promised to pay $50 on November 1, 1942, but this payment was never made by him, nor was any payment whatever made until the rent was waived in order to enable the appellant to make a crop, when $150 was paid out of the proceeds of the loan, on April 3, 1943. It is true that the proof does show on cross-examination of Senator Jones that he would have accepted the money on April 1, 1943, and that he would have accepted it at any time prior to July 14, 1943. Even if it be conceded that Senator Jones had any right whatever to commit Mrs. Jones to the making of any contract whatever, void or voidable, his communication to the appellant that this contract was at an end constituted a disaffirmance of the contract by Mrs.. Jones, because he cannot be said to be endowed with power to entangle her and yet not have the power to disentangle her. It is here maintained that she was not bound at all, that she did not contract or authorize Senator Jones to contract to sell the land, either orally or by a written power of attorney sufficient to bind her under the statute of frauds. But if he did involve her in any way, he certainly had the power to disaffirm for her and that disaffirmance operated to create the relationship of landlord and tenant after July 14, 1943.
Harvey v. Daniels, 133 Miss. 40, 96 So. 746.
The relationship of landlord and tenant, therefore, existed from and after July 14, 1943, to January 1, 1944, even though it had not existed in 1942 or was not brought about by the appellant's request that the appellee waive her rent in favor of the loan, in April, 1943, which was made for his benefit. His having occupied the land for a number of years under contracts providing for annual payments of rent, made by Mr. Francis and Senator Jones as the agents of the appellee, the disaffirmance had the effect to make the appellant a tenant of the appellee for the year 1943.
Montgomery v. Hollingsworth, 127 Miss. 346, 90 So. 79; Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003.
But without regard to any prior tenancy, whether on account of holding over under the 1942 contract or on account of the change of relationship by abandonment of the appellant's alleged contract to purchase or his securing the waiver, the appellant occupied the land without any lawful contract of sale or lease and he was a tenant at will or at sufferance. He was none the less a tenant of the appellee and she had the right to maintain the action, upon giving the notice she did give.
As the case stands now, under the statute on which she relies, he is a tenant holding over, in any event. The appellee's position is that the alleged contract of sale is a nullity, and did not lawfully change the relationship that existed under the contract of December 15, 1941, and if she should, perchance, be mistaken about this, the failure of the appellant to carry out, and his abandonment of, the alleged contract of sale, with the subsequent request for a waiver and the acceptance of its benefits, constituted him a tenant for the year 1943, and the appellee was entitled to recover possession of the premises involved in this action.
W.E. Gore, for appellee, on motion.
The motion should be sustained.
Garner v. Townes, 134 Miss. 791, 100 So. 20; Huff v. Murray, 171 Miss. 656, 158 So. 475; Code of 1942, Sec. 1971, Code of 1930, Sec. 3387; Code of 1942, Sec. 1972, Code of 1930, Sec. 3388.
L.F. Easterling and P.Z. Jones, both of Jackson, for appellee, on motion.
The motion should be overruled.
Stollenwerck v. Eure, 119 Miss. 854, 81 So. 594; Paxton v. Oliver, 70 Miss. 570, 12 So. 799; Hawkins Hardware Co. v. Crews, 176 Miss. 434, 169 So. 767; Canal Bank Trust Co. v. Brewer, 147 Miss. 885, 113 So. 552, 114 So. 127; Gillen v. Stuckey (Miss.), 73 So. 626; Code of 1930, Secs. 31, 63, 704, 2223, 2228, 2236, 3458, 3466, 3467, 3468; Code of 1942, Secs. 1971, 1972, 1973.
This action was brought in the county court by the appellee, who is the owner of the land in controversy, under sec. 948, Mississippi Code 1942, by which she seeks to recover possession of the land from the appellant, who, she says, was her tenant, holding over without any right so to do. She does not seek to recover any rent for the premises.
The appellant says that he was not a tenant of the property, but was in possession of it under contract for its purchase, and, therefore, his relation to the land was that of a vendee thereof. The question presented, therefore, is whether the appellant was in possession of the property as a tenant of the appellee, without the right to continue in possession thereof. This question was answered by the county court in the negative. The circuit court, on appeal thereto, reversed the judgment of the county court, and by an agreement of counsel the case was then tried by a circuit judge without a jury, resulting in the above question being answered in the affirmative, and the rendition of a judgment awarding the possession of the land to the appellee.
On October 22, 1933, the appellee notified the appellant to "vacate, deliver up and quit the premises." The appellant failed to comply with this notice, but continued in possession of the land, and this action was begun on January 29, 1944.
According to the evidence for the appellee, the appellant, on October 22, 1943, was in possession of the land as her tenant, but that his right to continue possession thereof terminated with the notice to vacate given him on that day. According to the evidence for the appellant, he was then in possession of the property under a parol agreement with the appellee's husband (which agreement, we will assume, was known to, and approved by, the appellee), to convey it to him on the payment of a stipulated price therefor, a portion of which has been paid.
Both of these contentions find support in the evidence. One or the other is correct, and it matters not which, for under either of them the appellant was a tenant of the appellee. Under the appellee's contention the appellant's right to continue in possession of the property as the appellee's tenant ceased with the notice given him on that day. Under that of the appellant he was a tenant at will or sufferance, it matters not which, of the appellee, for the reason that his possession of the property was not under a deed thereto, but under a parol agreement. Ezell v. Parker, 41 Miss. 520; 35 C.J. 1137. Whether he was such prior to the notice given him in October, to vacate the premises (in which connection see Harvey v. Daniels, 133 Miss. 40, 96 So. 746), is immaterial, since the appellee does not seek to recover rent for the land. The judgment will be affirmed.
The appellant's appeal bond stipulates that if the judgment should be affirmed he will "pay all costs and the value of the use and occupation of said land after the time of taking the appeal, and damages for waste or injuries to the land not embraced in the use and occupation, after taking the appeal," and the appellee requests that the cause be remanded to the court below for the ascertainment of the amount of the damages covered by this bond. This question has not been argued by either counsel. Consequently, no judgment will be rendered at this time for damages of any character on this bond, but counsel for the appellee may, within fifteen days from this date, file a motion for such a judgment, stating exactly what that judgment should be and referring to the sections of the Code authorizing it. This motion should be accompanied by a brief, to which counsel for the appellant may reply within ten days after its filing; the rejoinder of counsel for the appellee to be filed five days after the filing of the brief of counsel for the appellant, copies to be served in accordance with the rules of this court.
So ordered.
ON MOTION.
This is an appeal by a tenant from a judgment rendered against him in a proceeding under Section 948, Code of 1942, awarding the appellee a recovery of the land withheld from her by the appellant. Pursuant to permission given in the opinion rendered herein when the case was affirmed, 19 So.2d 518, the appellee has filed a motion requesting us to award her five per cent damages under Section 1971, Code of 1942, on the value of the land in controversy and since the value thereof does not here appear, to remand the case to the court below under Section 1972, Code of 1942, for the ascertainment by it of the value of the property. The appellant says, as we understand the brief of his counsel, that no such damages can be here awarded for the reason that the only interest of appellee in this land that is here involved is the rent that may have been due her by the appellant thereon, and that since no judgment was rendered in the court below for rent no damages of this character can be awarded. In this the appellant is mistaken. His claim and his contention in the court below were that he was not a tenant of the appellee but that he was in possession of the property and had the right to hold it under a contract for the purchase thereof. The court below held to the contrary and rendered a judgment that the appellee "do have of and recover from . . . J.C. Hodges the premises described as follows:" and directed that a warrant issue to the sheriff commanding him to put the appellee in possession of the premises. The interest of the appellee in this land therefore is not limited but covers all of its value. This motion will, therefore, be sustained.
As pointed out in our former opinion, "the appellant's appeal bond stipulates that if the judgment should be affirmed he will `pay all costs and the value of the use and occupation of said land after the time of taking the appeal, and damages for waste or injuries to the land not embraced in the use and occupation, after taking the appeal,' and the appellee requests that the cause be remanded to the court below for the ascertainment of the amount of the damages covered by this bond." This motion of the appellee renews that request. This is not an appeal from a judgment in an action of ejectment with a stay of execution and therefore Sections 1165 and 1166 of the Code of 1942 have no application, and no statute has come under our observation which permits this procedure, here. If the appellee has any right or cause of action under this provision of the appeal bond, as to which we express no opinion, it can be enforced only by an original action or suit on the bond. This portion of the appellee's motion will be overruled.
A judgment will be here rendered for the appellee on the appeal bond for five per cent damages on the value of the land and the cause will be remanded to the court below for the ascertainment of this value in accordance with Section 1972, Code of 1942.
So ordered.