Opinion
No. 34136.
April 22, 1940.
1. ACTION.
When one is out of possession or is deprived of the use or benefit of property or of some right or interest therein, or of any other benefit recoverable in law or in equity, and his suit therefor does not come on for trial until the asserted right has expired and has become as completely extinct as if it had never existed, so that a judgment upon the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant, case is "moot."
2. ACTION.
When one is rightfully in possession of leased premises and the landlord seeks wrongfully to evict him, the case does not become "moot" upon mere fact that tenant's term has expired before time of trial, since general judgment in favor of landlord would be to adjudge that tenant was wrongfully in possession at time action was filed and before his rightful term expired, and might subject him to double rent under statute (Code 1930, sec. 2225).
APPEAL from the circuit court of Jackson county; HON. L.C. CORBAN, Judge.
Ford Ford, of Pascagoula, for appellant.
Where a tenant, under a parol lease of real estate for one year or more, continues to occupy same over a period of years, and under which possession is taken and rent paid, such facts create a tenancy from year to year, and the tenant is entitled to notice, in writing, given two months before the beginning of each yearly period, before he can be evicted by the landlord.
Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003; Hamilton v. Federal Land Bank, 175 Miss. 462, 167 So. 642; Usher v. Moss, 50 Miss. 208; Montgomery v. Hollingsworth, 127 Miss. 346, 90 So. 79; Love v. Law, 57 Miss. 596; Richardson v. Neblett, 122 Miss. 723, 84 So. 695; Sec. 2224, Code of 1930.
Where a tenant continues to occupy and enters upon another year without objection from the landlord, and with his silence or tacit consent and approval, a tenancy for another year is thus created and cannot be terminated in the middle of the term, but only at the end of the year.
Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003; Hamilton v. Fed. Land Bank, 175 Miss. 462, 167 So. 642; Usher v. Moss, 50 Miss. 208; Montgomery v. Hollingsworth, 127 Miss. 346, 90 So. 79; Love v. Law, 57 Miss. 596; Richardson v. Neblett, 122 Miss. 723, 84 So. 695; Sec. 2224, Code of 1930; 35 C.J., p. 1098, sec. 291; p. 1099, sec. 292, sub.-sec. 3, and sec. 293; p. 1101, sec. 295; p. 1103, sec. 297; p. 1109, sec. 313.
In a landlord and tenant proceeding, where it is shown that the landlord had no right to the immediate possession of the premises in question at the time he instituted his suit, the action, on appeal, should be dismissed.
Hamilton v. Federal Land Bank, 175 Miss. 462, 167 So. 642; Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003.
Otto Karl Wiesenburg, of Pascagoula, for appellee.
Where the defendant claims a right to occupancy of leased premises to and including October 31, 1939, but not thereafter, a trial on November 29, 1939, as to whether or not the plaintiff is entitled to immediate possession of the premises presents no triable controversy. This is a moot case.
McDaniel v. Hurt, 92 Miss. 197, 41 So. 381; Pafhausen v. State, 94 Miss. 103, 47 So. 897; State v. Jones, 107 Miss. 462, 65 So. 511; Whidden v. Broadus, 108 Miss. 664, 67 So. 155; Lockard v. Hoy, 113 Miss. 238, 74 So. 137; State v. Standard Construction Co., 118 Miss. 469, 78 So. 625; Yates v. Beasley, 133 Miss. 301, 97 So. 676; Hughes et al. v. Ball, 140 Miss. 812, 106 So. 626; McKinnon v. Poole, 142 Miss. 416, 107 So. 550; Rawlings v. Claggett, 174 Miss. 845, 165 So. 620; Thomas v. Ferrell, 184 Miss. 87, 184 So. 425; 4 C.J.S., page 1945, sec. 1354 and page 1982, sec. 1368; 3 C.J. 357, secs. 112-113; 4 C.J., page 575, note 80, and page 591, note 20; 2 Am. Jur. 943, sec. 151; 3 Am. Jur., sec. 733 and page 312, sec. 735.
During the month of October, 1932, appellee rented a small store building to appellant. Appellee admits that the term of the original lease was for one year, although the rental was payable monthly. Without any modification of the original lease contract, as regards the time element, appellant continued to hold over from year to year, when, on December 19, 1938, the landlord gave notice to the tenant to quit the premises on or before January 13, 1939; and the tenant having declined to do so, the landlord soon thereafter brought this action to evict him.
The landlord was not entitled to maintain the action, because, in October 1938, the tenant had entered, without notice or objection to the contrary, upon another year, so that the tenant's right would not expire until October, 1939. The case did not come on for trial, however, in the circuit court until November 29, 1939, when the court gave a peremptory instruction in favor of the landlord, which action of the court is defended here on the sole ground that on the date last aforesaid the issue had become moot.
When a person is out of possession, or is deprived of the use or benefit of property, or of some right or interest therein, or of any other benefit recoverable in law or in equity, and his suit or action therefor does not come on for trial until the asserted right has expired and has become in all respects as completely extinct as if it had never existed at all, so that a judgment upon the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant, such a case is moot. This is illustrated by such cases as Thomas v. Ferrell, 184 Miss. 87, 184 So. 425.
But when a person is rightfully in possession of leased premises and the landlord seeks wrongfully to evict him, the case does not become moot upon the mere fact that the tenant's term has expired before the time of trial, because, in such a case, the general judgment in favor of the landlord, as was rendered in the instant case, would be to adjudge that the tenant was wrongfully in possession at the time the action was filed and before his rightful term expired, and might subject him to double rent under section 2225, Code 1930. This principle is illustrated by such cases as Cahn v. Wright, 108 Miss. 420, 421, 66 So. 782, and a case directly in point is Kaufman v. Mastin, 66 W. Va. 99, 66 S.E. 92, 25 L.R.A. (N.S.), 855.
It seems to have been assumed that the notice to the tenant given on December 19, 1938, to vacate on or before January 13, 1939, would serve as a notice to quit at the end of the year or during October, 1939. We intimate no opinion whether such a notice to quit at a designated time can be made to serve for another and a later unspecified time.
Reversed and remanded.