Opinion
February 28, 1949.
1. Landlord and tenant — repairs — lien for.
When a tenant made repairs to leased building without the knowledge or consent of landlord and subsequent purchaser from the landlord had no knowledge of tenant's claim for repairs, a bill by the tenant to establish a lien for such repairs is properly dismissed.
2. Landlord and tenant — lease from month to month — necessity of written notice to terminate.
When a lease of realty is by the month for an indefinite period it can be terminated against the will of the tenant only at the end of the current month by giving tenant one week's notice in writing, and a decree terminating the tenancy when no notice at all has been given is erroneous. Sev. 946, Code 1942.
3. Landlord and tenant — lease from month to month — necessity of written notice to terminate.
Where a decree is erroneous in terminating a lease from month to month for an indefinite period when no written notice as required by statute had been given tenant by landlord or by the landlord's successor in title, the decree is further erroneous in so far as it ordered the payment of an increased rental demanded by the landlord's successor. Sec. 946, Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Pearl River County, LESTER CLARK, Chancellor.
H.H. Parker, for appellant.
We submit that from the very nature of the testimony the appellant was entitled to recover for funds expended by him. There were only two parties who could testify, that was the appellant, and the appellee, Mrs. Barlow, with reference to the contract under which the repairs were made. The appellant definitely testified that such an agreement was had. The appellee, Mrs. Barlow, testified that she received the purported, or proposed five year lease, that she told the appellant over the 'phone that she had it, and that she retained it for over one year, without saying that she would not execute it until she had the opportunity to sell the property and her notice to the appellant was that the property was for sale, so that there can be no question of the strength of the proof of this verbal understanding.
We recognize, of course, that a materialmens' lien would have to be either by a contract express or implied, but we submit that the proof in this case definitely shows a sufficient understanding between the parties, the owner and the repair man, to constitute that state of facts, or circumstances were sufficient between the parties as to make the materialmens' lien statute applicable. The testimony of the appellant positively shows that he had a definite understanding with the appellee, Mrs. Barlow, the minds of the parties met. The understanding that he would do the repairs at his expense, that the appellee, Mrs. Barlow, knew same was being done. This followed up with the admission of the appellee, Mrs. Barlow, that she had talked with the appellant in regard to his having a lease for a period of years.
The testimony shows that this expenditure for material and repairs was discussed; that the lease was drawn in accordance with the discussion; that it was forwarded to the appellee, Mrs. Barlow; that she retained same for more than one year. True, she did not sign same during the time that she retained this lease, but she retained the lease without objecting to the repairs being made by the appellant, and as soon as the appellee, Mrs. Barlow, learned that the repairs were made she immediately decided to sell and did sell, thereby getting the benefit of the repairs, which increased the price of her building and property from $4,000.00 to $6,500.00.
Under the holding in the case of Hollis Ray v. Isbelle, 124 Miss. 799, 87 So. 273, a mechanics' lien would attach either on a contract expressed or implied. In fact, under the holding of the court in the case of Pincus v. Collins, 22 So.2d 361, under the proof submitted in this case, the appellant would not only hold a mechanics' lien since as is held in the above case a mechanics' lien would attach without a contract, but he would hold a lien for the material furnished and is entitled to enforce same in this proceeding.
With further reference to both theories that on the right to recover in assumpsit and the right to recover on the mechanics' lien, we are not unmindful of the fact that counsel for appellee, Mrs. Jennie D'Antoni, take the position that she is an innocent purchaser for value and is not liable under either of these theories, but that she bought the property without notice.
In answer to this we submit that according to our understanding of all of the law, a tenant in possession puts all purchasers on notice of every claim and right inuring to said tenant, including any right he has under an oral lease, or a written lease, see Frye v. Rose, 120 Miss. 778, 83 So. 179-180, a case decided by the court in banc, in which it was held possession of a tenant is not only notice of all rights and interest connected with the tenancy, but is also notice of all interest acquired, and even subsequent agreement, and holds that possession originally acquired by one right, or in one manner, is notice of all other rights subsequently and differently obtained and held by the occupant.
The appellant's position is that regardless of everything else in this cause presented, the appellee had no right to recover possession of the premises until appellant's monthly rental contract, or the leasing of the property at $35.00 per month had been terminated as required and provided by statute, and that part of the decree of the court which allowed the appellant only the sixty days from the time of the decree entered herein to vacate said property, and authorized the issuance of a Writ of Possession, at the end of said sixty day period, that is, the decree terminated the appellant's monthly rental contract from month to month, without any notice whatever, and this on a suit by appellant to enforce his right as against the appellee.
It is the contention of the appellant that the relief granted Mrs. D'Antoni is erroneous, under the rulings of this court in the case of Bancroft v. Seashore Camp Ground, 82 So. 314, 120 Miss. 446, a case which is on all-fours with the case at bar, where the trustees of Seashore Camp Grounds sought to increase the rent, just as Mrs. D'Antoni did here.
Mrs. Barlow testified that she never notified Mr. Williams, the appellant here, that his tenancy was terminated, or would be terminated. The same thing that happened in the Seashore Camp Ground case, supra, where the tenant objected to the Trustees increasing the rents, thereupon the trustees instituted suit for a collection of past due amounts and to enforce its lien upon the improvements upon certain lands, the court there held: "The appellant was a tenant of the appellee from year to year (just as the appellant here was a tenant of the appellee from month to month) and it does not appear that she agreed to pay the increase in the rent sought to be recovered. Conceding for the sake of argument that the appellee notified the appellant before the beginning of the year for which this increase in rent is sought to be recovered, that they intended to so increase the rent, the appellant did not by merely remaining on the land become liable therefor. She has the right to hold the land until the tenancy is terminated by the appellee in the statutory manner, and is liable only for the rent she agreed to pay."
Section 946 of the Mississippi Code of 1942 is the statute on notice to terminate tenancy. It is needless to set out this statute. The court is definitely familiar therewith, but we cite the holding of the court on the proposition of a rent contract for month to month continuing over a period of time, being a rent contract which requires notice to terminate, see the cases of Wilson v. Wood, 84 Miss. 728, 32 So. 609; Lay v. Great Southern Lumber Company, 118 Miss. 736, 79 So. 832.
Morse Morse, for appellees.
Appellant makes the following points: "The appellant is entitled to recover money which he was induced to expend on appellee's, Mrs. Barlow, property under the promise that she would as a consideration for such repairs and expenditures give him a lease for a period of years. Even if this were the law appellant, Williams, would have to prove, and the court believe —
1. He was a person who could obtain a mechanic's lien.
2. He was induced to expend money by Mrs. Barlow.
3. Mrs. Barlow as a consideration for the repairs must have promised him a lease for years on the property.
Williams in a fashion testified to the above facts and Mr. and Mrs. Barlow testified to the contrary. This made a question of fact. The chancellor decided the question of fact, contrary to contention of appellant. That should end this contention for it is Hornbook Law that Questions of Fact when decided by a chancellor, judge or a jury are not disturbed.
Appellant next argues "The appellee had no right to recover possession of the property as awarded in the decree and neither did she have any right to recover rents pending the vacating of the property by appellant."
The answer to all that has been said by appellant in his brief can be answered briefly. The final decree recites that the case came on upon the cross-bill, etc. All parties and their attorneys were present. Mrs. D'Antoni was contending for $65,00 per month for the time the suit was filed, and the appellant was in possession 14 months paying no rent and all the court made him pay was $35.00 per month which even he admitted was due and then gave appellant two extra months to get out at the same rental if he needed the time. If ever a litigant was treated nicely and given every notice it was the appellant. He got everything he asked for, by jumping in and filing his suit which the chancellor by his decree held had no merit. He secured the use of the building which must be worth $5500.00 for $35.00 per month rent for 16 months, and up to now has paid nothing. He has kept Mrs. D'Antoni out of possession since Dec. 1947 by the appeal and has paid nothing and on a case which the chancellor after going into all the facts found had no merit, and adjudged every question of fact contrary to his contentions.
The appellant, G.H. Williams, filed a bill in chancery against Mrs. Elsie Barlow and Mrs. Jennie D'Antoni alleging that for several years he had been renting from Mrs. Barlow, on a monthly basis, a restaurant building in the city of Picayune for a monthly rental of $35; that in September, 1945, he requested her to make certain needed repairs to the property and that they reached a mutual oral agreement to the effect that she would not expend any funds for that purpose, but would guarantee him a continuation of his occupancy for a period of five years at the same price if he would make the repairs himself, and that as a consequence of this agreement he expended a considerable sum of money in making the repairs and continued in the occupancy of the building and continued to pay his monthly rental to Mrs. Barlow until she sold the property to Mrs. D'Antoni about one year thereafter. The bill alleges that complainant has learned that his alleged oral agreement for five years' occupancy of the property is void, on account of the statute of frauds, but that he is nevertheless entitled to a mechanic's and materialman's lien on the land and building for the amount expended by him in making the repairs. It also alleges that the repairs were made with the knowledge and consent of Mrs. Barlow, and that Mrs. D'Antoni purchased the property with full knowledge of his rights, after which she demanded $65 per month rent of him, which he refused to pay.
Separate answers were filed by both defendants specifically denying the allegations of the bill, and, with her answer, Mrs. D'Antoni filed a cross-bill charging that she is entitled to possession of the premises and to a decree for rent in the amount of $65 per month from the date she notified Mr. Williams of the increase in rent.
The case was heard on the aforesaid pleadings and oral evidence, and a decree was entered dismissing the original bill and denying the relief therein sought, and awarding to Mrs. D'Antoni rent in the amount of $35 per month from September 1, 1946, and also awarding her possession of the property, but allowing Mr. Williams two months in which to vacate, after which a writ was directed to be issued putting Williams out of possession, and the decree further provides that the rent to be paid by Williams after the date of the decree shall be $65 per month.
Williams appeals and assigns error first in denying him a lien on the property for the repairs which he made, and second in awarding Mrs. D'Antoni possession of the property and rent thereon.
(Hn 1) At the trial there was a sharply disputed issue of fact. Williams testified in support of his bill, and Mrs. Barlow testified that she never agreed to give Williams any kind of rental contract except on a month to month basis, that for the small rental which she was receiving Williams was to keep the property in repair, and that she did not know he had made any repairs until long after they were completed, and she positively denied that she had ever agreed to pay for any repairs. She also testified that when Mrs. D'Antoni offered her $5,500 for the property, she got in touch with Williams and offered to let him have it at the same price if he wanted it, but he declined to pay that amount and told her to go ahead and sell it and made no claim for repairs. In some of the details, Mrs. Barlow is corroborated by her brother-in-law. Mrs. D'Antoni testified that when she purchased the property she did not know of any claim by Williams for a lien for repairs, and that she paid cash for it.
On this issue of fact the chancellor found against the appellant and dismissed his bill. After a very careful examination of all the evidence, we cannot say that the chancellor erred in so doing. His finding is not against the weight of the evidence, and is not manifestly wrong. Therefore, the decree is affirmed insofar as it dismissed the original bill and denied the relief therein sought.
The second error assigned is fraught with more difficulty than the first. It is admitted by all the parties that Williams was never given any written notice to terminate his tenancy of the premises and that his rental was from month to month for an indefinite period of time. Mrs. D'Antoni testified that after she bought the property, she called Williams by telephone and advised him that thereafter his rent would be $65 per month and that he refused to pay this and positively stated that he would not pay it.
Section 946 of the Mississippi Code of 1942 provides that notice to terminate a tenancy shall be given in writing by the landlord to the tenant in all cases where the tenancy is not to expire at a fixed time, and that where the letting is by the month one week's notice in writing shall be given. There is no claim in the record here that any notice, either written or oral, was ever given to Williams to terminate his tenancy. In fact, the record shows that no notice was given. (Hn 2) Under the cited statute, this Court has repeatedly held that a letting of real property by the month for an indefinite period of time can only be terminated against the will of the tenant at the end of the monthly term then pending by giving one week's notice in writing. Usher v. Moss, 50 Miss. 208; Wilson v. Wood, 84 Miss. 728, 36 So. 609; Lay v. Great Southern Lumber Co., 118 Miss. 636, 79 So. 822. We find, therefore, that the chancellor was in error in terminating the tenancy of Williams and awarding possession of the premises to Mrs. D'Antoni, and in that respect the decree must be reversed.
Almost identically the same situation was shown in the case of Boncroft v. Seashore Camp Ground School, 120 Miss. 446, 82 So. 314, 315, and in that case the Court said:
"The appellant was a tenant of the appellee from year to year, and it does not appear that she agreed to pay the increase in the rent of the land here sought to be recovered. Conceding, for the sake of the argument, that the appellee notified the appellant before the beginning of the series of years for which this increase in rent is sought to be recovered that they intended to so increase the rent, the appellant did not, by merely remaining on the land, become liable therefor. She has the right to hold the land until the tenancy is terminated by the appellee in the statutory manner, and is liable only for the rent she agreed to pay. "Reversed, and bill dismissed."
(Hn 3) In view of this case, the chancellor was also in error in awarding an increase in rent from $35 per month to $65 per month from and after the date of the decree. The award of rent in the amount of $35 per month from September 1, 1946, up to the date of the decree is in line with the quoted case and is correct.
The decree of the court below is accordingly affirmed as to a dismissal of the original bill and is also affirmed as to the award of $35 per month rent from September 1, 1946, but that portion of the decree awarding $65 per month rent after the date thereof and awarding possession of the premises to Mrs. D'Antoni is reversed.
Affirmed in part, and in part reversed and judgment here.