Opinion
No. 34523.
April 28, 1941. Suggestion of Error Overruled May 26, 1941.
1. LANDLORD AND TENANT.
Where month to month tenancy began on 10th day of March and continued until April 5th, when landlord gave tenant notice to vacate on 30th of that month, tenancy did not expire on April 30 but on May 10, and landlord had no right on April 5 to require the tenant to vacate earlier than May 10.
2. LANDLORD AND TENANT.
Where both landlord and tenant knew that month to month tenancy began on the 10th of one month and ended on the 10th of the next, tenant was not misled by notice requiring vacation ten days before expiration of monthly period, and hence landlord was entitled to double rent for time tenant held over (Code 1930, secs. 2224, 2225).
3. LANDLORD AND TENANT.
Statute making tenant liable for double rent in case he holds over after notice is a "penal statute" and should be strictly construed against claim for double rent, but that does not mean that the very letter of the statute must be followed, since its substance is all that is required (Code 1930, secs. 2224, 2225).
APPEAL from the circuit court of Jackson county, HON. L.C. CORBAN, Judge.
H.W. Gautier, of Pascagoula, for appellant.
A landlord cannot dispossess a tenant and recover double rent who is holding "from month to month" with the monthly terms beginning on the 10th and ending on the 10th of the following month by giving written notice dated April 5, 1940, directing the tenant to vacate not later than April 30, 1940, because such notice would not terminate tenancy at end of monthly period ending April 10th, being less than seven days before that date, and would not terminate such tenancy at the end of the monthly period ending May 10th, because such notice specifically sought to terminate the tenancy not later than April 30.
Bowles v. Dean, 84 Miss. 376, 36 So. 391; Wilson v. Wood, 84 Miss. 728, 36 So. 609; Usher v. Moss, 50 Miss. 208; Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003; Lay v. Great Southern Lbr. Co., 79 So. 822, 118 Miss. 636; Hamilton et al. v. Fed. Land Bank, 167 So. 642, 175 Miss. 462; Henley v. Kilbas, 195 So. 582, 188 Miss. 604; 32 Am. Jur. 840, sec. 1000; Simmons v. Jarman, 122 N.C. 195, 29 S.E. 332; 86 A.L.R. 1349 et seq., annotations.
Ford Ford, of Pascagoula, for appellee.
Our view is that a notice is sufficient if it clearly contains a manifestation of the landlord's desire and intention to terminate the tenancy, and then the question of when the tenant must vacate or can vacate without liability for rent to the landlord arises. On this the law seems to be well settled that he has until the expiration of his month in which to vacate.
Sec. 2274, Code 1930; Hammond v. Illiad Amusement Co., 234 S.W. 371; Reck v. Caulfield, 129 Ky. 695, 112 S.W. 843; David v. Hall, 6 Ky. L. Rep. 444; Prescott v. Elm (Mass.), 7 Cush. 346; Note, 86 A.L.R. 1359; Worthington v. Moreland Motor Truck Co., 140 Wn. 528, 250 P. 30; Hart v. Lindley, 50 Mich. 20, 14 N.W. 682; Jones v. Salmon, 128 Miss. 508, 91 So. 199; Sweatman v. Dean, 86 Miss. 641, 38 So. 231.
If, however, the tenancy was from the 10th of the month to the 10th of the month, it is our belief that the notice was good to terminate the tenancy, but any action instituted prior to the 10th of the succeeding month would have been premature, and this is what the cases cited by appellant explicitly hold.
As we have pointed out in the statement of facts, this action was not commenced until the 11th of May, after the tenant had received seven days' written notice prior to the expiration of his term, regardless of whether the month expired on the 30th of April or the 10th of May. In other words, the notice was clear, definite, and explicit and contained all that the statute required, and was given to the tenant more than seven days prior to the end of the term which had expired before the action was commenced, regardless of whether the term was from the 1st of the month to the 1st of the month, or from the 10th of the month to the 10th of the month.
The appellee was the landlord; the appellant was the tenant; the property rented a residence and lot on which it is situated in the City of Pascagoula. The landlord brought this action to oust the tenant from possession of the leased premises and to recover double rent under the hold-over statute, Section 2225, Code 1930. The trial resulted in a judgment for the landlord as prayed. From that judgment the tenant prosecutes this appeal.
The case was tried on agreed facts. The tenancy was from month to month and began on the 10th of March, 1937, and continued until the 5th of April, 1940, when the landlord gave the tenant in writing notice to vacate on the 30th of that month. Under the rental contract the monthly tenancy did not expire on April 30th, but on May 10th, therefore, the landlord had no right to require the tenant to vacate earlier than the latter date. The tenant held over until the 17th of November, 1940, notwithstanding the notice to vacate. The landlord recovered a judgment for double rent for the hold-over period. The only question is whether he was entitled to double rent. Sections 2224 and 2225 of the Code of 1930 are the governing statutes. They are in this language:
"Notice to quit shall be necessary only where the term is not to expire at a fixed time. In all cases in which a notice is required to be given by the landlord or tenant to determine a tenancy, two months' notice, in writing, shall be given where the holding is from year to year, and one month's notice shall be given where the holding is by the half-year or quarter-year; and where the letting is by the month or by the week, one week's notice, in writing, shall be given."
"When a tenant, being lawfully notified by his landlord, shall fail or refuse to quit the demised premises and deliver up the same as required by the notice, or when a tenant shall give notice of his intention to quit the premises at a time specified, and shall not deliver up to the premises at the time appointed, he shall, in either case, thenceforward pay to the landlord double the rent which he should otherwise have paid, to be levied, sued for, and recovered as the single rent before the giving of notice could be; and double rent shall continue to be paid during all the time the tenant shall so continue in possession."
Repeating briefly: A rental by the month beginning on the 10th of one month and ending on the 10th of the next; more than a three weeks' notice in writing by the landlord to the tenant to vacate on the 30th of the month in which the notice is given, instead of the 10th of the next month, the expiration of the monthly period; Question: Should the landlord be denied double rent upon the ground that the notice fixed a time for vacation ten days earlier than he was entitled to fix? We are of opinion that he should not. Both the tenant and the landlord knew that the tenancy was by the month — from the 10th to the 10th and not from the first to the last of the month. There was no controversy as to that. Therefore, the tenant could not have been misled by the notice. He knew that the landlord intended for him to vacate not on the 30th of the month, the day named in the notice, but on the 10th of the next month. In other words, he knew that the landlord simply made a mistake in fixing the date. Notwithstanding, the tenant held over for several months. It is true that the statute is penal and should be strictly construed against the claim for double rent. That does not mean, however, that the very letter of the statute must be followed. Its substance is all that is required. The notice given in this case met that requirement.
Bowles v. Dean, 84 Miss. 376, 36 So. 391, and other cases relied on by the tenant, are not decisive of the question here involved. They merely mean that these statutes are to be strictly construed against the claim of the landlord.
Affirmed.