Opinion
No. 36588.
November 24, 1947. Suggestion of Error Overruled March 8, 1948.
1. LANDLORD AND TENANT.
A tenant can acquire during tenancy landlord's title to leased premises where landlord has lost his title under tax sale made prior to beginning of tenancy, but tenant cannot assert such title until he has surrendered possession of leased premises to landlord under contract of tenancy.
2. LANDLORD AND TENANT.
The estoppel of tenant to deny title of landlord without surrendering possession of leased premises has relation generally to status of title at time of creation of tenancy, and does not preclude tenant from acquiring during tenancy the title held by landlord at beginning thereof.
3. LANDLORD AND TENANT.
The tenant is estopped while in possession to assert title, although he may show after surrender of possession under contract of tenancy that landlord's title has passed by operation of law to another or that landlord has transferred title without reserving rent, or that premises have been sold at execution or under foreclosure sale and that tenant has attorned to true owner for rent or has acquired such title from purchaser at such sale.
4. LANDLORD AND TENANT.
A tenant buying tax title from purchaser at tax sale and remaining in possession was liable to landlord for rent accruing each month that tenant remained in possession, notwithstanding that after termination of tenancy by surrendering possession to landlord the tenant could assert title against landlord.
APPEAL from the circuit court of Bolivar county. HON.E.H. GREEN, J.
Smith Jones, of Cleveland, for appellants.
In an action for rent tenant who has surrendered possession to landlord on demand to pay rent or surrender possession may not set up title in himself as a defense to the action where rent accrued during tenant's continued occupancy of the premises, but in such case the tenant is liable to landlord for rent accruing until the time he surrenders possession of the property pursuant to the rental contract.
Johnson v. Langston, 179 Miss. 622, 176 So. 531; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Love v. Law, 57 Miss. 596.
In action by landlord against tenant, who has surrendered possession, for rent that accrued during tenancy, where tenant, as defense, relies on deed acquired during tenancy from purchaser of premises at tax sale, defense is not established by introduction of list of lands sold to individuals, chancery clerk's conveyance to tax purchaser and deed from tax purchaser to defendant, because to establish such defense, tenant, in order to show valid tax title, must show, in addition to the above, that title passed out of the United States Government.
Acoff v. Roman, 172 Miss. 141, 159 So. 555.
If tenant, who is sued after surrender of possession for rent that accrued during his possession as a tenant, is permitted to set up title in himself as a defense and question his landlord's title to that extent, he would still be liable for unpaid rent accruing prior to date of the deed under which he claims title.
32 Am. Jur. 121, Sec. 115.
In action for rent where there is no conflict in the testimony and plaintiff clearly has the right to recover under the evidence in the record, Supreme Court will not remand the cause, but will enter final judgment.
Grenada Grocery Co. v. Tatum, 113 Miss. 388, 74 So. 286.
W.W. Simmons and A.D. Somerville, both of Cleveland, for appellee.
Where title of landlord is divested out of him during a tenancy, the tenant may attorn to the new owner, and the landlord is no longer entitled to collect the rents from the tenant.
Johnson v. Langston, 179 Miss. 622, 176 So. 531; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Love v. Law, 57 Miss. 596; Wolf v. Johnson, 30 Miss. 513; Melchor v. Casey, 173 Miss. 67, 161 So. 692; Rhyne v. Guevara, 67 Miss. 139, 6 So. 736; Code of 1942, Sec. 9958.
A justice of the peace court is without jurisdiction to try title. A judgment of a justice of the peace court is never conclusive of title. The burden was not on appellee, defendant in the court below, to prove title out of the government.
Acoff v. Roman, 172 Miss. 141, 159 So. 555; Lyon Co. v. Ratliff, 129 Miss. 342, 353, 92 So. 229, 230; Vansant v. Dodds, 164 Miss. 787, 144 So. 688; Code of 1930, Sec. 3273; Code of 1942, Sec. 9958.
Appellants are not entitled to rent from April 14, 1946, to February 11, 1947, or any other period.
On May 16, 1944, the appellee Elisha Shaffer leased from the appellants Will James and his wife Hattie James, as the owners thereof, a certain house and lot which had been sold on April 3, 1944, to the Tax Investment Company for delinquent taxes due for the preceding year. Appellee paid the rent of $10 per month in advance as the same became due and payable, until April 16, 1946. He thereupon discontinued his payments for the reason that the tax title of the purchaser at the said tax sale had matured a few days prior thereto, and the appellee had been notified thereof. Then, on April 26, 1946, he bought the tax title from the purchaser at the tax sale, and remained in possession of the leased premises until February 11, 1947, before surrendering the same to appellants, after demand made by them for the payment of the rent then in arrears, and herein sued for.
The suit for the rent thus accruing while the appellee was in possession of the premises resulted in a judgment of non-liability therefor, and this appeal is prosecuted by the lessors.
It is well settled in this State and in most other jurisdictions, that a tenant may acquire during his tenancy the landlord's title to the leased premises where the latter has lost the same under a tax sale made prior to the beginning of the tenancy. Walker v. Harrison, 75 Miss. 665, 23 So. 392; Johnson v. Langston, 179 Miss. 622, 176 So. 531; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Johnson v. Carter, 193 Miss. 781, 11 So.2d 196; McKay v. Shaffer, 202 Miss. 558, 32 So.2d 746; 32 Am. Jur., Sec. 114, p. 119; 51 C.J.S., Landlord and Tenant, Sec. 276, sub-sec. c. But it is equally well settled that a tenant may not assert such title so acquired during his tenancy until he shall have first surrendered possession of the leased premises to his landlord under the contract of tenancy. Johnson v. Langston, supra; Simpson v. Ricketts, supra; 32 Am. Jur., Sec. 101, p. 108; and 51 C.J.S., Landlord and Tenant, Sec. 266.
The estoppel of the tenant to deny the title of the landlord without surrendering possession of the leased premises has relation generally to its status at the time of the creation or inception of the tenancy, and does not preclude the tenant from acquiring during his tenancy the title which was held by the landlord at the beginning thereof. But he is estopped while in possession of the leased premises to assert such title. He may show, after the surrender of his possession under the contract of tenancy, that the landlord's title has passed by operation of law to another, or that the landlord himself has transferred it without reserving the rent, or that it has been sold at execution or under a foreclosure sale, and that he has attorned to the true owner for the rent, or has acquired such title from the purchaser at any such sale. Wolf v. Johnson, 30 Miss. 513; Melchor v. Casey, 173 Miss. 67, 161 So. 692; 32 Am. Jur., Sec. 114, p. 119; 51 C.J.S, Landlord and Tenant, Sec. 276. The case of Love v. Law, 57 Miss. 596, is one where the tenant sought to assert title in a third person which had been completely acquired prior to the beginning of the tenancy, and for that reason is to be distinguished to that extent from the cases of Johnson v. Langston, and Simpson v. Ricketts, supra, but the rule is the same as to when such title may be asserted.
In the instant case the appellee Shaffer was notified by the attorney for the Tax Investment Company shortly after April 9, 1946, that it had acquired as purchaser at the tax sale the title formerly held by the appellants Will James and wife, but the said tenant did not attorn to this purchaser at the tax sale for the rent, nor was he disturbed or threatened to be disturbed in his possession, but merely accepted the offer of the tax title purchaser to sell the leased premises to him, and continued in possession of the premises until February 11, 1947, as hereinbefore stated. In the case of Galloway et al. v. Inglis, 138 Miss. 350, 103 So. 147, 149, it is said: "The mere existence of an outstanding title which is paramount to that of his landlord is no defense by a tenant to an action for rent, since there must be an ouster or disturbance by means of it to amount to an eviction." And it is stated in 32 Am. Jur., Sec. 479, page 392, that: "The rule that in order for the tenant to be entitled to assert a constructive eviction, he must abandon the premises, applies where the tenant seeks to assert a constructive eviction as a defense to an action for rent. The great weight of authority is to the effect that in order for the lessee to rely upon constructive eviction as a ground for avoiding payment of the rent contracted for, he must surrender or abandon the leased premises. If the tenant makes no surrender of the possession, but continues to occupy after the commission of the acts which would justify him in leaving, he will be deemed to have waived his right to abandon. It would be unjust to permit the tenant to remain in possession and then escape the payment of rent by pleading a state of facts which, although conferring a right to abandon, had been unaccompanied by the exercise of that right." See also 51 C.J.S., Landlord and Tenant, Sec. 271, where it is recognized that the estoppel of the tenant while in possession may be asserted in an action for rent.
The surrender of possession is required in order to terminate the estoppel. After the tenancy has been thus terminated the tenant may assert any title he has to the land in a proper proceeding therefor; but since the tenant in the case at bar remained in possession from April 1946 to February 11, 1947, he was not in position when the rental became due each month to assert his own title, although it may have been a good and valid one, as against his landlord, and he is therefore liable for the rent which accrued each month during the continuance of his possession, under the principle announced in Johnson v. Langston, and Simpson v. Ricketts, supra.
A recovery of the rent in the total sum of $100 in favor of the appellants as landlords was denied by the judgment of the trial court, and the same must be reversed for the reasons hereinbefore stated.
Reversed and judgment here for the appellants.