Opinion
(Decided 8 March, 1898.)
Landlord and Tenant — Tenant from Month to Month — Notice to Quit.
1. Where a tenant, under a lease for the year 1896, at a specified price per month, payable in advance, held until June, 1897, and the landlord received rent up to June, 1897: Held, that the tenancy was from month to month in 1897.
2. Where a tenant from month to month, who had paid his rent to 1 June, 1897, received no notice from his landlord on 18 May, 1897, "to get out within thirty days": Held, that such notice was invalid as to May, as the rent had been paid, and as to June, because the prescribed time for quitting did not end with the end of the month. (Section 1750 of The Code.)
3. Where a tenant from month to month agrees to pay monthly in advance, but there is no condition of forfeiture in the event the rent is not so paid, the landlord cannot turn the tenant out for nonpayment of rent.
SUMMARY PROCEEDINGS in ejectment, commenced before a justice of the peace and heard on defendant's appeal before Robinson, J., at September Term, 1897, of WAYNE.
W. C. Munroe for plaintiff.
W. D. Pollock for defendant (appellant).
The plaintiff rented the premises in dispute to (197) the defendant at the price of $3 per month, to be paid in advance — rental to commence on 1 January, 1896, and the defendant was to have the privilege of retaining possession for the year. The defendant retained possession during 1896 and until 22 June, 1897, when this proceeding was commenced.
This constituted a renting from month to month, commencing on 1 January, 1896. And it is evident that the parties understood it (198) to be by the calendar month, as the plaintiff speaks of receiving the rent for the month of May, etc." The renting being by the month, when the defendant was allowed to hold over in 1897, and the plaintiff received rent for that year up to and including the month of May, this constituted the defendant a tenant from month to month in the year 1897. Jones v. Willis, 53 N.C. 430.
This being so, the defendant was entitled to fourteen days notice to quit, ending with the end of the month. Branton v. O'Briant, 93 N.C. 99; Code, section 1750, which is now, by chapter 227, Laws 1891, reduced to seven days. The only notice shown to have been given was on 18 May, 1897, and this was "to get out within thirty days." This notice did not comply with the law. It could not have been for the month of May, as it did not say so, and was not fourteen days before the end of that month. It could not apply to the month of May, as the plaintiff received rent for that month, which was a waiver of any rights the plaintiff might have had for that month. Richburg v. Bartley, 44 N.C. 418. It was not in compliance with the law for the month of June, because it did not end with the end of that month. Branton v. O'Briant, supra; Code, section 1750. In fact, this action was commenced before the end of June, to wit, on 22 June. The rent was to be paid monthly in advance. This was never done, the payments all being made after the beginning of the month.
But there was no condition of forfeiture in the event the rents were not so paid. And the plaintiff had no right to turn the defendant out on account of the non-payment of rent. Meroney v. Wright, 81 N.C. 390.
We have not considered the other interesting question (199) presented, as to the effect of the optional lease, discussed in McAdoo v. Callum, 86 N.C. 419. There is error and a new trial is awarded.
Error. New trial.