Den on the Demise of Jones v. Willis, 53 N.C. 430, 8 Jones 430 (1862)

June 1862 · Supreme Court of North Carolina

53 N.C. 430, 8 Jones 430

Den on the demise of E. W. JONES v. E. H. WILLIS.

Where a tenant; entered into the occupation of premises under an express lease from month to month, and he continued the occupation for more than two years, there is no reason why he should be considered as a tenant from year to year, and thus be entitled to six months notice to quit.

What notice a tenant from month to month is entitled to — Quero?

Action of ejectment, tried before Heath, J., at Spring Term, 1861, of Washington Superior Court.

The only question in this cause, was on the necessity of notice to quit. The premises sought to be recovered, was a room in a ware-house in the town of Plymouth. The plaintiff proved that he let the premises to the defendant on 18th of December, 1856, at ten dollars for the first month and five dollars for every succeeding month that he should hold them; that the defendant then took possession, and has ever since occupied the room, the lessor of the plaintiff having possession of the other part of the building. He then proved by a witness that he demanded possession prior to the commencement of the suit, but the witness could not say how long prior it was. On this demand, the defendant refused to surrender the premises, saying “ the door of the room was on his (defendant’s) lot, and he was willing to compromise with the lessor.” The writ was issued 18th of January, 1859, and there was no other evidence of a demand than that above stated.

On an intimation from the Court, that the facts disclosed a tenancy from year to year, requiring six months notice to quit, the plaintiff submitted to a nonsuit and appealed.

JB. F. Moore, for the plaintiff.

Winston, Jr., for the defendant.

Pearson, C. J.

This Court does not concur jp opinion with his Honor on the point upon which he saw proper to have the case put in tjie Court below.

The lease was, in express terras, one from “ month to month.” To* a plain mind, the process of reasoning by which such a lease could be converted into a tenancy from year to year, and thereby make six months notice necessary, before either party could determine the relation of landlord and tenánt, would not readily occur.

Mr. Winston took the position that the courts favor tenancies from year to year, and that in this case, such a holding would be inferred, from the fact, that the defendant entered in December, 1856, and continued in possession up to January, 1859. This position is not tenable.

The fallacy of the argument grows out of a failure to distinguish between a lease at will, or a tenancy at will, which the courts incline to convert into a tenancy from year to year, and a lease like that under consideration, which, in so man}7 words, is one from month to month.

A tenancy at will may be determined by either party on short notice- — -that is, reasonable time for the tenant to pack up and leave.

A tenancy from year to .year can only be determined by six months notice prior to the expiration of the current year, which notice must be given either to the landlord or the tenant, as the case may be, in order to determine the relation. The latter, therefore, is the better relation for both parties— for the landlord, because he will have six months’ time to look out another tenant — for the tenant, because he has that time to look out another place; and this conduces to the public good by having all premises occupied and kept in cultivation. Upon these considerations, where there is a tenancy at will, in the first instance, if the possession continues for more than one year, inasmuch as the parties have not fixed on any precise time, the courts incline to imply, from the fact of entering under the second year, that the holding is to be from year to year.

This reasoning, however, has no application to a case like ours, which was, in the first instance, a tenancy from month to month. ,

In respect to a tenancy from month to month, whether a full month’s notice should be given, or half a month’s notice would be sufficient, we are not called on now to decide. In Doe v. Hazelly 1 Esp. 94, and in Doe v. Raffan, 6 ibid. 4, it is held that in a tenancy from week to week, a full week’s notice is certainly sufficient; and in a tenancy from month to month, a full month’s notice was of course sufficient. Whether by analogy to the doctrine of tenancies from year to year notice for half of the week or month prior to its expiration would not be sufficient is not decided; but it is certain that the analogy is not complete ; for leases from month to month or from week to week, must, of course, be confined, to the rent of rooms to live in, or keep stores, and the conclusion, that six months was reasonable time to give notice in case of a tenant from year to year, was adopted because of the course of husbandry and the time necessary for crops to be planted and matured.

Mr. Wimston, in the second place, took the ground, that supposing his Honor to have erred in respect to six month’s notice, yet the decision ought to be sustained, because notice for a month, or at all events, for a half a month, was required in order to determine the lease, and there was no proof ■ of such notice.

When the Judge interrupts the usual progress of a trial by an intimation of his opinion on a particular point, and the counsel submits to a nonsuit, and appeals, with a view of trying that question, and it turns out that his Honor was in error, the case should be sent back for another trial, because it may be that but for this intimation, additional evidence would have been offered or other points taken, as, in this instance, further evidence, in order to fix the precise time of the demarid of possession, or raising the question whether the defendant’s saying that “ the door of the room was on his lot? and he was willing to compromise,” was not taking an adverse position inconsistent with a tenancy, and by such disavowal dispensing with the necessity of any notice.

Per Curiam,

Let the nonsuit be set aside and a venire de novo.