L.F. Easterling and P.Z. Jones, both of Jackson, for appellant.
This was a proceeding instituted under the landlord and tenant statute to remove the appellant from a tract of land in Hinds County, Mississippi. The solution to the issues involved depends upon whether the relationship of landlord and tenant existed between the appellant and appellee. The appellant in support of his contentions that the relationship of landlord and tenant did not exist exhibited a contract of sale for the purchase of the land, which contract of purchase was attacked by the appellee as being in violation of the statute of frauds. The appeal is from the judgment of the circuit court that the relationship of landlord and tenant existed and that the appellee was entitled to the possession of the land.
The county court, sitting as court and jury, found as a fact that J.C. Hodges was not the tenant of Mrs. Stella T. Jones and that the relationship of landlord and tenant did not exist between them within the purview and meaning of the summary proceedings contemplated for the relationship of landlord and tenant under Section 948 of the 1942 Code, and on this finding of fact sustained the plea of the defendant in the county court that the relationship did not exist and dismissed the proceedings. We respectfully submit that the learned circuit judge, on appeal of this cause, erroneously decided the proposition that the relationship of landlord and tenant existed because he, the circuit judge, found that the relationship
of vendor and vendee did not exist under the purchase contract because the same fell within the statute of frauds.
It is our contention that even though this contract of sale is void under the statute of frauds, the non-validity did not ipso facto operate to create a relationship of landlord and tenant where the vendee had never agreed to the tenancy relationship for the year 1943.
If the relationship of landlord and tenant does not exist, then unlawful entry and detainer may be resorted to, but the procedure under Landlord and Tenant chapter must be strictly pursued.
Bowles v. Dean, 84 Miss. 376 , 36 So. 391; Lockett v. Lockett (Miss.), 95 So. 741; Vansant v. Dodds, 164 Miss. 787 , 144 So. 688 .
In the instant case, it is admitted indirectly that the appellant had contracted to purchase the land in controversy and had paid a substantial part of the consideration. There was no agreement such as prevailed between landlord and tenant. The relationship from the moment the contract was made was that of vendor and vendee. The county court in these proceedings had no jurisdiction to adjudicate upon the title or the right to the title. It is not a question of whether the contract could be specifically enforced or not. It was a contract establishing the relationship of vendor and vendee. Under the statute of frauds it was not void. When this contract was made it ended the relationship that had previously existed of landlord and tenant and, by contract of the parties, established a new and different relationship, that of vendor and vendee with all of the correlative rights appertaining thereto.
Downing et al. v. Campbell, 131 Miss. 137 , 95 So. 312; Harvey v. Daniels, 133 Miss. 40 , 96 So. 746; Perkins et al. v. Swank, 43 Miss. 349 ; Anthony et ux. v. Bank of Wiggins, 178 Miss. 361 , 173 So. 454 .
The occupation of land under a contract for purchase does not make the occupant a tenant of the grantor during the time allowed for the purchase even though the
contract for sale is not carried out. Therefore, no promise to pay rent for the use of the premises during such period will apply and the statutory process for a landlord to recover possession cannot be maintained.
Bowling v. Bowling (Miss.), 47 So. 802; McKissack v. Bullington, 37 Miss. 535 ; Moak v. Bryant, 51 Miss. 560 ; Clymer v. Powell, 56 Miss. 672 ; Pennington v. Richie, 102 Miss. 133 , 58 So. 657; Rawleigh State Bank v. Williams, 150 Miss. 766 , 117 So. 365 ; Hytken v. Bianca, 186 Miss. 323 , 186 So. 624 ; Bush v. Fuller (Ala.), 55 So. 1000; 3 Thompson on Landlord and Tenant 99, Sec. 1079.
Under statutes authorizing the maintenance of summary proceedings against tenants who wrongfully hold over, it is essential to enable a person to maintain such proceedings that the conventional relation of landlord and tenant exists.
16 R.C.L. 1183, Sec. 706.
W.E. Gore, of Jackson, for appellee.
This action was instituted in the county court by the appellee here, who is the owner of the land here involved and was the landlord of the appellant, under the provisions of Section 948 of the Code of 1942, Section 2226, Code of 1930. There is no dispute as to the ownership of the land. The statute provides for the removal of a tenant holding over. There was a judgment in favor of the tenant in the county court. The circuit court reversed that judgment and entered judgment removing the tenant. This appeal was taken from that judgment.
The relation of landlord and tenant existed for several years, under contracts made first by Mr. Francis, agent of the appellee, and later by the husband of the appellee, Senator Howard Jones, who was her agent for the purpose of renting the land from year to year, but he was not authorized to sell the land to the appellant or any other person, so as to bind the appellee, under the provision
of Section 264(c), Code of 1942, Section 3343(c), Code of 1930.
To establish the relation of landlord and tenant, the appellee relied and now relies on a written contract of lease, executed on December 15, 1941, for the year 1942, and upon the agreement, which the appellant induced Senator Jones to make for the appellee, whereby she waived her rent for 1943, in order to enable the appellant to obtain money from a Federal finance agency with which to make crops on the land in 1943. The appellant, at the trial, undertook to establish that the relation of landlord and tenant did not exist in 1943, because, as he claimed, he had a contract of purchase and sale of the land involved. To establish the contract, he introduced in evidence a written memoranda.
It is maintained here by the appellee that, since Senator Jones notified the appellant on December 1, 1942, at the time the appellant said he could not make the $425 payment then due under the alleged contract, that "your contract has ceased," the relationship of landlord and tenant then and thereafter existed between the parties. It is not claimed that any new contract was made. Under the alleged contract, the appellant promised to pay $50 on November 1, 1942, but this payment was never made by him, nor was any payment whatever made until the rent was waived in order to enable the appellant to make a crop, when $150 was paid out of the proceeds of the loan, on April 3, 1943. It is true that the proof does show on cross-examination of Senator Jones that he would have accepted the money on April 1, 1943, and that he would have accepted it at any time prior to July 14, 1943. Even if it be conceded that Senator Jones had any right whatever to commit Mrs. Jones to the making of any contract whatever, void or voidable, his communication to the appellant that this contract was at an end constituted a disaffirmance of the contract by Mrs.. Jones, because he cannot be said to be endowed with power to entangle her and yet not have the power to disentangle her. It is here
maintained that she was not bound at all, that she did not contract or authorize Senator Jones to contract to sell the land, either orally or by a written power of attorney sufficient to bind her under the statute of frauds. But if he did involve her in any way, he certainly had the power to disaffirm for her and that disaffirmance operated to create the relationship of landlord and tenant after July 14, 1943.
Harvey v. Daniels, 133 Miss. 40 , 96 So. 746.
The relationship of landlord and tenant, therefore, existed from and after July 14, 1943, to January 1, 1944, even though it had not existed in 1942 or was not brought about by the appellant's request that the appellee waive her rent in favor of the loan, in April, 1943, which was made for his benefit. His having occupied the land for a number of years under contracts providing for annual payments of rent, made by Mr. Francis and Senator Jones as the agents of the appellee, the disaffirmance had the effect to make the appellant a tenant of the appellee for the year 1943.
Montgomery v. Hollingsworth, 127 Miss. 346 , 90 So. 79; Scruggs v. McGehee, 110 Miss. 10 , 69 So. 1003.
But without regard to any prior tenancy, whether on account of holding over under the 1942 contract or on account of the change of relationship by abandonment of the appellant's alleged contract to purchase or his securing the waiver, the appellant occupied the land without any lawful contract of sale or lease and he was a tenant at will or at sufferance. He was none the less a tenant of the appellee and she had the right to maintain the action, upon giving the notice she did give.
As the case stands now, under the statute on which she relies, he is a tenant holding over, in any event. The appellee's position is that the alleged contract of sale is a nullity, and did not lawfully change the relationship that existed under the contract of December 15, 1941, and if she should, perchance, be mistaken about this, the failure of the appellant to carry out, and his abandonment
of, the alleged contract of sale, with the subsequent request for a waiver and the acceptance of its benefits, constituted him a tenant for the year 1943, and the appellee was entitled to recover possession of the premises involved in this action.
W.E. Gore, for appellee, on motion.
The motion should be sustained.
Garner v. Townes, 134 Miss. 791 , 100 So. 20; Huff v. Murray, 171 Miss. 656 , 158 So. 475 ; Code of 1942, Sec. 1971, Code of 1930, Sec. 3387; Code of 1942, Sec. 1972, Code of 1930, Sec. 3388.
L.F. Easterling and P.Z. Jones, both of Jackson, for appellee, on motion.
The motion should be overruled.
Stollenwerck v. Eure, 119 Miss. 854 , 81 So. 594; Paxton v. Oliver, 70 Miss. 570 , 12 So. 799; Hawkins Hardware Co. v. Crews, 176 Miss. 434 , 169 So. 767 ; Canal Bank Trust Co. v. Brewer, 147 Miss. 885 , 113 So. 552 , 114 So. 127; Gillen v. Stuckey (Miss.), 73 So. 626; Code of 1930, Secs. 31, 63, 704, 2223, 2228, 2236, 3458, 3466, 3467, 3468; Code of 1942, Secs. 1971, 1972, 1973.