Speer v. Smoot

Supreme Court of Alabama

Speer v. Smoot

47 So. 256, 156 Ala. 456, 1908 Ala. LEXIS 99

CourtSupreme Court of Alabama

DecidedJune 30, 1908

StatusPublished

Cited by6 cases

This text of 47 So. 256 (Speer v. Smoot) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Speer v. Smoot, 47 So. 256, 156 Ala. 456, 1908 Ala. LEXIS 99 (Ala. 1908).

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Opinion

McCLELLAN, j.

Unlawful detainer. Granting, as plaintiff insisted below, that the tenancy was from month to month, with the payments so payable, the plaintiff should not have been accorded a judgment, because the two notices necessary to enable her to maintain the action were not given the defendant. — McDevitt v. Lambert, 80 Ala. 536, 2 South. 438; Boss v. Gray Eagle Coal Co., 155 Ala. 250, 46 South. 564. These two essential (unless waived) notices are: “First, to terminate the tenancy, the possessory right, which must be equal in length to the intervals between payments; and, second, the demand required, after the termination of the possessory interest,” by the statute. — Code 1896, § 2127. Here a notice was given in October to terminate the tenancy on November 1st following. This notice was not of sufficient length under the authorities cited.

Besides, the subsequent (to November 1st) acceptance of rent for tenure and use beyond, by several days, that date, was a waiver of the notice to quit, if such it was, on November 1st. — 24 Cyc. pp. 1334, 1335 and notes. The proof shows, without dispute, that the demand specified in the statute cited before was not given, nor was any waiver of either of these notices shown. We do not see how, as the case stands, the plaintiff can recover. However, we must reverse the judgment and remand the cause.

Reversed and remanded.

Tyson, O. J., and Dowdell and Anderson, JJ., com cni.

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McCLELLAN, j.

Unlawful detainer. Granting, as plaintiff insisted below, that the tenancy was from month to month, with the payments so payable, the plaintiff should not have been accorded a judgment, because the two notices necessary to enable her to maintain the action were not given the defendant. — McDevitt v. Lambert, 80 Ala. 536, 2 South. 438; Boss v. Gray Eagle Coal Co., 155 Ala. 250, 46 South. 564. These two essential (unless waived) notices are: “First, to terminate the tenancy, the possessory right, which must be equal in length to the intervals between payments; and, second, the demand required, after the termination of the possessory interest,” by the statute. — Code 1896, § 2127. Here a notice was given in October to terminate the tenancy on November 1st following. This notice was not of sufficient length under the authorities cited.

Besides, the subsequent (to November 1st) acceptance of rent for tenure and use beyond, by several days, that date, was a waiver of the notice to quit, if such it was, on November 1st. — 24 Cyc. pp. 1334, 1335 and notes. The proof shows, without dispute, that the demand specified in the statute cited before was not given, nor was any waiver of either of these notices shown. We do not see how, as the case stands, the plaintiff can recover. However, we must reverse the judgment and remand the cause.

Reversed and remanded.

Tyson, O. J., and Dowdell and Anderson, JJ., com cni.

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47 So. 256, 156 Ala. 456, 1908 Ala. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/speer-v-smoot-ala-1908.

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