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.