Opinion
No. 33263.
September 12, 1938. Suggestion of Error Overruled October 17, 1938.
1. APPEAL AND ERROR.
Where proceeding to recover possession of a house and lot from a tenant was finally submitted to jury on evidence that it would have been submitted had the pleadings been confined to the two affidavits contemplated by statute, it was unnecessary for the Supreme Court to review rulings on pleas and demurrers, or to determine whether the pleas and demurrers were permissible under the statute (Code 1930, section 2226 et seq.).
2. FRAUDS, STATUTE OF.
Landlord was not estopped, in proceeding to recover possession of house and lot from tenant, to deny that tenant had a three-year lease of property, though landlord had allegedly agreed orally to rent the house for three years, and though tenant in reliance on agreement had put in valuable fixtures, which he would lose if forced to leave the premises, since the court is without power to engraft exceptions on the statute of frauds (Code 1930, section 2226 et seq.; section 3343).
APPEAL from circuit court of Warren county; HON. R.B. ANDERSON, Judge.
R.M. Kelly and Chaney Culkin, all of Vicksburg, for appellant.
The record made in the county court and the record upon which the cause was submitted to the circuit court for trial fails to show any proof whatsoever that the notice which was required by law to be given to appellant to terminate the tenancy of appellant was given, and we respectfully submit that an examination of this record will disclose that absolutely no proof was offered that the notice required under the law to be given was given or served upon defendant, or that the original and amended affidavit was sufficient in law to entitle appellee to a judgment in this cause.
Wilson v. Wood, 84 Miss. 728, 36 So. 609; Bowles v. Dean, 84 Miss. 376, 36 So. 391; Lay v. Great Southern Lbr. Co., 118 Miss. 636, 79 So. 822.
In the instant case it was alleged, but no proof offered or made as shown by the record, that notice was served on appellant on the 22nd day of May, 1937, notifying him to vacate at midnight on the 31st day of May, 1937. We submit that under all of the facts in this case, even though such notice had been given and proven, it was insufficient under the law to entitle appellee to a judgment in this cause.
Section 2224, Code of 1930; Scruggs v. McGee, 69 So. 1003, 110 Miss. 10; 1 Tiffany on Landlord Tenant, page 128; 9 R.C.L. 864, sec. 33.
If the notice to terminate tenancy is required, then such notice should be given in the manner and form prescribed by the statute and, if given, proven in the trial of a controverted cause. Appellee not only failed to give the required notice, but failed to prove the giving of any notice.
Taylor's Landlord Tenant (7 Ed.), page 404, sec. 469.
The original affidavit upon which this case was tried in the county court and the amended affidavit upon which the case was first tried in the circuit court was made not by appellee, but by E.L. Brunini, "agent and attorney for Mary A. Walsh," in the manner and form hereinbefore set out.
Section 3458, Code of 1930; Downing v. Campbell, 95 So. 312, 131 Miss. 137; Taylor's Landlord Tenant (7 Ed.), page 720, sec. 721 and page 619, sec. 724.
We insist that, under all of the facts and circumstances in connection with this cause, as shown by the record, appellee should be estopped from denying the right of appellant to occupy the property for the term agreed upon.
Barron v. Federal Land Bank, 180 So. 256; Montgomery v. Hollingsworth, 90 So. 79, 127 Miss. 346; Barber v. Loveland, 146 So. 854, 166 Miss. 625; Staton v. Bryant, 55 Miss. 261; Kelso v. Robinson, 172 Miss. 828, 161 So. 135; Izard v. Mikell, 173 Miss. 770, 163 So. 498; 16 R.C.L., page 576, sec. 51; Taylor's Landlord Tenant (7 Ed.), page 596, sec. 707; Bigelow on Estoppel (5 Ed.), pages 556, 557; 1 Bouvier's Law Dictionary, Estoppel, pages 607 and 608; 3 Parsons on Contracts, pages 394-395; Tobin v. Thos. H. Allen Co., 53 Miss. 563.
The court was without authority under the law and the facts in this case to grant a new trial upon the motion filed by appellee. The cause should rightfully have been dismissed at costs of appellee.
Barney v. Scherling, 40 Miss. 320; Quin v. Myles, 59 Miss. 375; McCarty v. Mitchell, 151 So. 567, 169 Miss. 82; Ennis v. Y. M.V.R.R. Co., 118 Miss. 509, 79 So. 73.
This Honorable Court, in request for additional briefs in this cause, will note that no objection had been made in the court below to the counter affidavit of appellant nor to the admission of evidence in support of it. Had such objection been made, as assumed by the court, we might well know that the affidavit could have and would have been amended.
Coleman v. Bowman, 135 Miss. 137, 99 So. 465.
If the only plea or answer competent to be filed by appellant in this cause was the plea provided for in Section 2131, then doesn't it follow that appellant would have the right to show by affirmative evidence that he was rightfully and legally in possession of the premises from which he is sought to be evicted? In what other way could appellant make defense?
Appellant alleges and offered proof that he was in possession of the premises under a verbal contract for a period of three years; that he had complied in every way with his part of the contract, and had made the expenditures and assumed the obligations hereinbefore referred to in pursuance of the promises, acts and declarations of appellee, and that appellee is, therefore, estopped to plead the statute of frauds.
Bigelow on Estoppel (5 Ed.), pages 556 and 557; 27 C.J., page 337, sec. 425, 426, 427 and 428; Taylor's Landlord Tenant (7 Ed.), page 27, sec. 32; Delta Lbr. Co. v. Wall, 80 So. 782; Tobin v. Allen Co., 53 Miss. 230; McCray v. Toney, 5 So. 592, 66 Miss. 233; Hutchinson v. Platee, 81 So. 281, 119 Miss. 606; Staton v. Bryant, 55 Miss. 100; 19 Cent. Dig., Estoppel, sec. 285; Dudley v. Harvey, 59 Miss. 34; Scruggs v. McGehee, 69 So. 1003, 110 Miss. 10; 1 Tiffany on Landlord Tenant, page 188; Kelly v. Skates, 78 So. 945, 117 Miss. 886; Finucane v. Kearney, 1 Miss. Rep. 23; Kelso v. Robinson, 172 Miss. 828, 161 So. 135; O'Connor v. Enos, 105 P. 1039; Diamond v. Jacquith, L.R.A. 1916D 880; Edwards v. Ols Settlers Assn., 166 S.W. 423; Taylor's Landlord Tenant (7 Ed.), page 491, sec. 555, page 535, sec. 97; Harvey v. Clark, 32 So. 906, 81 Miss. 166.
If the affidavits upon which the cause was tried in the county court and the first trial in circuit court were deficient, or if appellee failed to prove that the required notice was served on appellant, and the record is conclusive as to this, then wasn't appellant clearly entitled to a judgment in the circuit court dismissing the case at cost of appellee? The first judgment rendered in the circuit court reversed the judgment of the county court and taxed appellee with the costs, but further, evidently being of the opinion that a reversal of the county court meant a rehearing of the cause in the circuit court, ordered "the cause set down for hearing according to law in this court."
Wilson v. Wood, 84 Miss. 728, 36 So. 609; Downing v. Campbell, 95 So. 312, 131 Miss. 137; 9 R.C.L. 864, sec. 33.
Brunini Hirsch, of Vicksburg, for appellee.
Where a lessee enters into possession under an invalid lease and pays a periodical rent, a periodical tenancy is created.
Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003; Hutchinson v. Platt, 119 Miss. 606, 81 So. 281; Montgomery v. Hollingsworth, 127 Miss. 346, 90 So. 79.
In the three cases above cited, there was unquestionably an annual rent to be paid and the court, therefore, held, in view of the principle that a periodical tenancy is created, the tenancy was from year to year. But in the instant case there was no allegation of any annual rent and the only testimony that Tanner offered was that he had an oral lease for three years, his rent to be paid monthly at the rate of $60 per month, and that he entered into possession of the premises and paid this stipulated sum monthly. Accordingly there could only be created a tenancy from month to month, otherwise it would be foolish for the court or the authorities to refer to periodical tenancies. The contention of Tanner is that any one can simply sit down and claim to have an oral lease of several years duration and thereupon automatically be given an annual tenancy.
35 C.J. 1107, sec. 305.
The affidavit was filed by Mrs. Walsh under the procedure outlined in Chapter 43 of the Code of 1930, entitled "Landlord and Tenant."
An examination of the counter affidavit makes it clear that there was only one issue before the county court, namely, "that the term for which the said premises were leased has not expired;" in other words, that Tanner had a year to year rental agreement, and not a month to month agreement.
It is true that the counter affidavit of Tanner avers that "he is rightfully in possession of said premises." That, of course, under the statute means nothing. It is a conclusion, and not a recital of fact. It was necessary for the defendant to have set up the grounds on which he claimed the right of possession, and the only ground he set up was "that the term for which the said premises were leased has not expired." For the defendant to say he is rightfully in possession of said premises can be effective only on the ground that it was a general issue plea, and thereby, under the law applicable to such pleas, Mrs. Walsh was put to the proof of every material step.
Griffith's Chancery Practice, sec. 68 and 81; 49 C.J. 249; Bowles v. Dean, 36 So. 391, 84 Miss. 376.
What matters were controverted by the defense set up by tenant in the case at bar? It was incumbent upon Tanner to specify his defense, and especially the defense of a failure on the part of Mrs. Walsh to set forth that notice was served upon him as required by the statute. If that matter had been set up in the counter affidavit it would have been incumbent upon Mrs. Walsh to have met that issue. It wasn't done. Even if the affidavit had been defective, it was necessary for him to have pointed that out by a motion to dismiss for want of a proper affidavit, and it would not have been dismissed under the decision of Bowles v. Dean, 84 Miss. 376, 36 So. 391, unless the landlord had declined to amend.
In the case of Harvey v. Clark, 81 Miss. 166, the court held that while the tenant made no defense in the lower court, he had a right to file his affidavit on appeal in the circuit court, but you will see that he had to deny the facts set up in the affidavit. If he had denied only one of them, that one, of course, is the issue to be tried.
The courts in the cases of Anderson v. Prindle, 23 Wend. 616, People v. Darling, 47 N.Y. 666, Creighton v. Sanders, 89 Ill. 543, Brownell v. Welch, 91 Ill. 523, and Geiger v. Braun, 6 Daly 506, have unanimously held that if the lease is for more than a year and the rent under it is to be paid monthly, then possession under it will only operate as a lease from month to month. Tanner overlooks the fact that in some jurisdictions the courts hold that a parol lease of land for years is construed as creating only a tenancy at will which does not entitle the tenant to notice.
Ellis v. Paige, 1 Pick. 43; Withers v. Larrabee, 48 Me. 570; Duke v. Harper, 6 Yerg. 280, 27 Am. Dec. 462; Robinson v. Deering, 56 Me. 357; Jennings v. McComb, 112 P. St. 518.
An examination of the affidavit filed will, we are confident, satisfy this honorable court that the requirements of law have been fully met.
Tanner overlooks the procedural requirements of the Code of 1930 which does not provide for the filing of any plea of estoppel by the tenant. And this is naturally a wise rule, because every proceeding brought before a justice of the peace by a landlord to evict the tenant would see the tenant coming in and pleading estoppel of some character or another. Estoppel in itself is a highly technical and difficult doctrine to apply. Certainly the legislature had no intention to permit the application of this doctrine in the landlord and tenant proceeding.
36 C.J., page 647, par. 1851; Brockway v. Thomas, 36 Ark. 518; Giering v. Hartford, 86 Conn. 208, 84 A. 930; Cottrell v. Moran, 138 Mich. 410, 101 N.W. 561; Norton v. Becknan, 53 Minn. 456, 55 N.W. 603; Elliott v. Abell, 39 Mo. 346; Carey v. Richards, 2 Ohio Dec. 630; Carmack v. Drum, 27 Wn. 382, 67 P. 808.
Under the heading of Statutes of Frauds, Tanner simply sets out that a court of equity will apply the doctrine of estoppel to get around the statute of frauds. But such is confined to a court of equity, or at least has never been permitted, so far as the authorities show, to be applied to a summary proceeding.
16 R.C.L. 576.
Since the statute involved in the instant case provides for the admission of a counter affidavit only, therefore it is clear that the lower courts were correct in striking the estoppel plea filed by the appellant. Since then the statute itself states that the facts set up in the affidavit can only be denied by the tenant, then such governs the pleadings.
27 C.J., sec. 248.
The general rule is that an equitable defense cannot be asserted in a summary proceeding to recover possession of the demised premises.
36 C.J. 647; Kaufmann v. Liggett, 85 A. 129.
An examination of the existing authorities shows that, without exception, where similar summary proceedings are involved, the courts have consistently held that equitable defenses cannot therein be asserted.
Brockway v. Thomas, 36 Ark. 518; City of Marysville v. Poole, 245 P. 248; Giering v. Hartford, 86 Conn. 208, 84 A. 930; State v. Hutchins, 158 So. 716; Jones v. Commonwealth, 31 Ky. L. 1148, 104 S.W. 782; Cottrell v. Moran, 138 Mich. 410, 101 N.W. 561; Norton v. Beckman, 53 Minn. 456, 55 N.W. 603; Elliott v. Abel, 39 Mo. App. 346; Noonan v. Mason, 285 S.W. 118; Drzewiecki v. Stock-Daniel Hdw. Co., 293 S.W. 441; Carey v. Richards, 2 Ohio Dec. 630; Hutchinson v. Wilson, 54 Wn. 410, 103 P. 474; Bond v. Chapman, 34 Wn. 606, 76 P. 97; Carmack v. Drum, 27 Wn. 382, 67 P. 808; Phillips v. Port Townsend, 8 Wn. 529, 36 P. 476; Re Bagshaw, 42 Ont. L. 466, 42 Dom. L.R. 596.
The only exceptions to the above rule that we have been able to find are decisions of the two states of Nebraska and New York which have by express statutory enactments changed the rule formerly prevailing to the effect that equitable defenses cannot be raised, and thereafter, by virtue of such statutory enactments, permitting the equitable defense.
Woods v. Garcewich, 67 App. Div. 53, 73 N.Y.S. 472; Montant v. Moore, 61 Misc. 45, 113 N.Y.S. 43; Mahar v. Edwards, 59 Misc. 488, 110 N.Y.S. 1083; Schlaich v. Blum, 42 Misc. 225, 85 N.Y.S. 335; Simon v. Schmitt, 137 App. Div. 625, 122 N.Y.S. 421; 127 Misc. 611, 217 N.Y.S. 438; 225 App. Div. 232, 232 N.Y.S. 530.
The general rule that a tenant is estopped to deny his landlord's title is applicable to summary proceedings.
16 R.C.L. 1186, sec. 708.
The defense attempted to be asserted by the appellant is an affirmative defense, not contemplated by the statute, and one which courts in general have frowned upon; and if the appellant wished to take advantage of such defense, then he had his choice of instituting a proceeding in equity seeking specific performance and an injunction, or he could pursue his remedy at law for his damages, if any.
In order to create an estoppel in pais the party pleading it must have been misled to his injury, that is, he must have suffered a loss of a substantial character. As otherwise expressed, where no injury suffered there can be no estoppel in pais. In the absence of injury it is of course immaterial that the other elements of estoppel are present.
21 C.J., page 1135 and 1119; 10 R.C.L., page 688 and sec. 25; 76 A.L.R., page 317.
Argued orally by R.M. Kelly, for appellant, and by Edw. L. Brunini, for appellee.
This is a proceeding under section 2226 et seq., Code of 1930, by the appellee to recover from the appellant, her tenant, the possession of a house and lot, the possession of which the appellee alleges the appellant is holding after the expiration of his right so to do has expired. From a judgment for the appellee the case was carried to the circuit court, where the judgment was set aside and a new trial granted. Amendments were there made to the pleadings by both parties, and the court was presented with pleas and demurrers. It will not be necessary for us to review the rulings thereon, or to determine whether these pleas and demurrers were permissible under the statute, for the reason that the case was finally submitted to the jury on evidence that it would have been had the pleadings been confined to the two affidavits contemplated by the statute. Holmes v. Elmer, Miss., 181 So. 325.
At the close of the evidence the court directed a verdict for the appellee, and there was a judgment accordingly. Several questions are presented by counsel, but we deem it necessary to specifically decide only the one hereinafter discussed.
The appellant was in possession of the house under a short-time lease from the appellee, conducting a mercantile business thereon, and desired a three-year lease thereof, in order that he might be justified in expending something over a thousand dollars in fixtures, including a refrigerating plant. These facts he communicated to the appellee and, according to his evidence, she agreed to rent him the house for three years at a monthly rental of $60, payable each month in advance, but she declined to enter into a written contract therefor, saying that "her word was as good as her bond." He remained in possession of the property, put in the fixtures contemplated, and paid the rental each month in advance. Prior to the expiration of the month preceding the institution of this suit, the appellee gave the appellant the notice required by section 2224, Code of 1930, for the termination of a tenancy where "the letting is by the month." The appellant declined to leave the premises, and this suit was begun. If, according to the appellant, he is forced to leave the premises he will suffer a loss on the fixtures installed by him.
It will not be necessary for us to set forth the evidence for the appellee.
Under the appellant's evidence the letting of the house was by the month, unless his claim to a three-year lease thereof is valid, although not evidenced by a written instrument, as required by section 3343, Code of 1930.
The appellant's contention in this connection, in substance, is that the appellee is estopped, because of the facts hereinbefore set forth, from denying that he has a three-year lease of the property. Section 3343, Code of 1930, provides that "An action shall not be brought whereby to charge a defendant or other party: . . (c) Upon any contract for the sale of lands, tenanements, or hereditaments, or the making of any lease thereof for a longer term than one year; . . . Unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing."
What we are, in effect, asked by the appellant to do is to engraft an exception on the statute by interpreting it as if it contained, after the words, "for a longer term than one year," the following or similar words: "unless the lessor, when making the lease, promises the lessee to observe it without its being reduced to writing, and permits the lessee to expend money on the leased premises in reliance on such promise." This we cannot do, for this court, contrary to the course pursued by some others, has uniformly held that it is without power to engraft exceptions on the statute, and must enforce it as written. Among the many cases so holding see Beamon v. Buck, 9 Smedes M. 207; Box et al. v. Stanford, 13 Smedes M. 93, 51 Am. Dec. 142; Howie v. Swaggard, 142 Miss. 409, 107 So. 556. Cf. Delta Lumber Co. v. Wall, 119 Miss. 350, 80 So. 782. To hold otherwise would destroy the purpose of the statute to prevent frauds and perjuries.
What we are dealing with is not a claim for restitution or reimbursement for the violation of an invalid contract, but with a claim for the enforcement of the contract itself.
Affirmed.