Greenwood v. Bennett , 208 Ala. 680 ( 1922 )

It is urged that the contract notice of the desire of the landlord to reduce the term of Bennett's lease, after "the first year thereof upon 6 months' notice in writing given the said lessee," was insufficient. The notice given to Bennett of such desire was signed "Henry Greenwood, Arthur Greenwood, by S. Greenwood." The statutory notice to quit was signed, and the suit instituted by all of the Greenwoods.

This court has declared that where real property held by tenants in common is mortgaged and foreclosed, the demand for possession by the purchaser, and the refusal which will destroy the right of redemption, must have been made upon each of the tenants in common. Harden v. Collins, 138 Ala. 399, 35 So. 357, 100 Am. St. Rep. 42. The reason for this ruling is that under the statute either of such tenants may exercise the right of redemption. Hale v. Kinnaird, 200 Ala. 596, 599, 76 So. 954. Such authorities are not analogous to the instant question.

In the language of the old law, the nature of joint tenancy is where the owners hold "per my et per tout." That is to say, for the purpose of tenure and survivorship each is the holder of the whole; for the purpose of alienation, each has his own share, which is presumed to be equal. 5 M. A. L. p. 245, § 311; 2 Black. Comm. p. 180; Williams, Real Property (6th Ed.) p. 132.

What then is the common-law rule of a notice sufficient to reduce or terminate a tenancy or to be sufficient as a notice to quit? The case of Doe d. Aslin v. Summersett (K. B. 1830) 1 Barn. Adol. 135, Lord Tenterden, C. J., held that a notice to quit, signed by one of several joint tenants on behalf ofothers, is sufficient to determine a tenancy from year to year, and that the case of Right Doe d. Fisher v. Cuthell, (1804) 5 East Rep. 491, where the notice was to "determine the lease," was distinguished as follows:

"There a lease for 21 years from Adams to Cuthell, was determinable at the end of 14 years, upon 6 months' notice in writing by landlord or tenant, their respective heirs, executors, etc., under his or their hands. Adams made Fisher, Nash, and Hyrons executors, and Fisher and Nash only gave the notice. The case was put, not upon the ground that they were executors, but upon the the ground that they were joint tenants, and that, circumstanced as that case was, where a mode specifically pointed out was to be pursued in order to put an end to a subsisting term, and that mode required the concurrence of all the joint tenants, a notice by some of the joint tenants only would have no operation; but that concludes nothing upon a case in which a notice by one only of the joint tenants would clearly operate upon his share, and where the confining it to that share might work great injustice to the defendant."

This rule is supported by notice to quit in Alford v. Vickery, Carrington Marshman's Eng. Nisi Prius Rep. 280. A report of the later cases stated that it is cited in Wood on Landlord and Tenant, §§ 445, 539, and Taylor on Landlord, § 479. 15 Eng Ruling Cases, 662, 666. Mr. Freeman cites Doe d. Aslin v. Summersett, supra, and says: "There seems to be but little doubt of its doctrine in England." Freeman's Cotenancy, § 180; Doe d. Kindersley v. Hughes, 7 Mees. W. 139, a notice to "determine the tenancy." See 16 R. C. L. p. 1175, § 697, for cases to the like effect.

The announcement of Lord Ellenborough of a notice to determine the tenancy, contained in Right Doe d. Fisher v. Cuthell, 5 East's Rep. 491, 497, was quoted with approval in Pickard v. Perley, 45 N.H. 188, 86 Am. Dec. 153 (where the subject was a notice to quit), without noting that the decision rested upon the requirement of the lease that the notice of the landlord to reduce the term be in writing "under his or their hands."

Mr. Freeman explains that while Right Doe d. Fisher v. Cuthell, supra, seemed to sustain a different conclusion from that announced in Doe d. Aslin v. Summersett, supra, it was by reason of the peculiar phraseology of the lease; that termination by either party was required to be upon notice in writing, under his or their respective hands. Hence it was held that a notice by only two of the three lessors was not under the hands of all, as the lease required it should be. The subject is concluded by Mr. Freeman as follows:

"Whether a notice by one or more lessors shall or shall not be held to terminate the tenancy between the lessee and the lessor who did not join in giving or authorizing such notice [italics supplied], it is, in either event, clear that neither cotenant has, by virtue of the ordinary relations of cotenants, any authority to act as agent of his companions, in giving such notice. If the notice has any effect over the moieties of the owners who do not unite in it, this effect arises, not from any presumed relation between the cotenant authorizing one to act as agent for the other, but from the nature of the leasing, and from the natural and reasonable presumption that the lessee never contemplated being a lessee of an undivided interest." Freeman on Cotenancy and Partition (2d Ed.) § 180, p. 260.

Mr. Taylor says of the sufficiency of such notice that —

"When two or more persons are interested in the premises as tenants in common, notice by one, on behalf of himself and his cotenants, will be valid only so far as his own share is concerned, unless he was acting at the time under the authority of the other parties mentioned in the notice (or unless the act is ratified before the notice becomes operative). But where they are interested as joint tenants, the notice need not be signed by all; for the act of one is supposed to be for the benefit of the others, and so is sufficient. The lessee holds of all so long as he and all shall please; and as soon as any one of the joint tenants gives notice to quit, he, in fact, puts an end to the tenancy." Taylor's Landlord and Tenant (2d Ed.) § 479, p. 66.

The subject is disposed of by Mr. Wade (Law of Notice [2d Ed.] § 616, pp. 352-353) as follows:

"As to the effect of notice from one or two or more joint lessors or lessees, or from any number less than all, upon the opposite party, there is some conflict, but the weight of authority seems to be that such notice must come, either directly or indirectly, from all, in order to be binding upon the party notified, as to the entire interest represented by the opposite parties. * * * And tenants in common, whether lessors or lessees, would possess no greater authority with respect to the interests of each other than would joint tenants."

See, also, 1 Washburn on Real Property, § 809; 24 Cyc. (2), p. 1332.

In his recent work on Landlord and Tenant (vol. 2, § 198, p. 1438), Mr. Tiffany said of the notice required to be given to terminate:

"When a lease is made by two or more joint tenants, notice by one, on behalf of all, is sufficient to terminate the tenancy as to his own share, and, likewise, according to the English decisions, as to that of the others, unless the lease expressly requires the notice to be given by all. In the case of a lease by tenants in common likewise, each may give a notice, good as to his undivided share, and presumably in England the rule, applied in the case of a lease by joint tenants, that each may give a notice in behalf of others, would be applied in the case of a lease by tenants in common. In one case in this country, however, it has been decided that one tenant in common cannot give a notice in behalf of the others (Pickard v. Perley,45 N.H. 188 [86 Am. Dec. 153]) and there is a dictum in that case to the effect that one joint tenant cannot do so."

There are several questions underlying such proceedings, on which the courts are generally agreed, viz.: (1) Options or right to terminate a lease must be exercised within the terms of the contract, and the expressed intentions of the parties; (2) by the party for whose benefit the same is reserved, or a successor in interest who is entitled to exercise the right, as shown by the fair intention of the parties collected from the terms of the instrument; and (3) upon compliance with the provisions of the lease reserving the right. Ann. Cas. 1916B, 306, 313, note; Vinyard v. Repub. I. S. Co., 205 Ala. 269,87 So. 552.

The fact that joint tenancy, in its former consequences, does not obtain in this state, and all who are thus provided for by deed are made tenants in common (Dunn v. Bank of Mobile, 2 Ala. 156; Hill v. Jones, 65 Ala. 220; Code 1907, § 5203), does not contribute to a different result than the announcement by us on original hearing; such is the effect of a reasonable notice to determine the tenancy when the specific terms of the lease in question and notice given are considered together. The contract for the lease of the premises to appellee was that of an entirety of interest. The nature and entirety of that tenancy is well defined by the parties to the lease; it was for the "storehouse and premises known as No. 411 No. Twentieth street, about 17 feet by 75 feet in size," to be used "for occupancy by him [Angelo Bennett] as a fruit stand and general store, andnot otherwise," and the landlord reserved the right to terminate that tenancy "at any time after the expiration of the first year thereof, upon six months' notice in writing given the said lessees, upon a bona fide sale of said premises having been made by the landlord."

Thus was the whole title and the possession of the specific premises treated as an entirety for the purposes declared, and subject to the right imposed by the lessor upon the premises for the benefit of, and not only to enhance its value, but that of his adjacent or separate space or "stores" in the same building.

The general rule of such right, options, and notices thereof is that it is not strictly construed, and the notice is sufficient if the intention of the parties to exercise the right or option is fairly communicated. The use of the words "our lease," or similar words, in the notice, has been held sufficient to show that it is designed as an exercise of the reserved right or option reserved by the lease. Ann. Cas. 1916B, 312 (4).

The case of McNally v. Leach (Mo.App.) 205 S.W. 82 (notice to quit), following the rule applied in Pickard v. Perley,45 N.H. 188, 86 Am. Dec. 153 (a notice to quit), adverts to the fact that the statute of Missouri requires "the person having the legal right to the possession to give notice in writing," and that decision is rested on the requirement of the sufficiency of the statutory notice to quit. The justice said:

"Under our statute, as in the New Hampshire case [Pickard v. Perley, supra, Compiled Statutes, c. 222, §§ 1, 6], we think it is clear that the notice of the termination of the tenancy and the demand for the possession must come at the proper time from both of these tenants in common in the ownership of the property."

Such is not the statutory requirement in this jurisdiction of a notice to terminate and determine a tenancy.

The difference between a notice to determine a tenancy — to terminate — and a notice to quit was adverted to in McDevitt v. Lambert, 80 Ala. 536, 2 So. 438, by Mr. Chief Justice Stone, saying of the notice to terminate that "we have, in this state, no statute bearing on the question," and that where "the contract of lease under which defendant entered is silent on the subject," reference must be had to the textbooks and general authorities for what a "reasonable notice in such cases" is. Ross v. Gray Eagle Coal Co., 155 Ala. 250, 46 So. 564; Speer v. Smoot, 156 Ala. 456, 47 So. 256; Eddins v. Galloway, 205 Ala. 361, 87 So. 557; Johnson v. Blocton-Cahaba Coal Co., 205 Ala. 373, 87 So. 559. The terms of the tenancy dealt with by Judge Stone were that either party could put an end to the lease by giving proper notice. The Chief Justice indicated that section 3697, Code of 1876 (section 4263 of the Code of 1907) made provision for a notice to quit after the due termination of the tenancy. In the instant case, the evidence shows that the statutory notice to quit (under section 4263 of Code) was signed by all of the Greenwoods.

Adverting to the instant contract notice of date of October 11, 1919, to "determine the tenancy" — terminate tenancy — its reference was specific as to the buildings known as Nos. 409, 411, and 411 1/2, the provisions of the lease, "our lease," pertaining thereto (as affecting defendant in court below and as applied to the premises designated as No. 411), in which the "landlord reserved the right to terminate this lease," etc., on notice; the notification that the "purchaser of said property desired to exercise the option of reducing said lease, gives notice to you [Mr. Angelo Bennett] through us of their and our desire to reduce said term" and concludes with the unequivocal statement that notice was thereby given that the "term of said lease is reduced to six months from the date of this notice." The evidence shows that there was full authority on the part of the Greenwoods signing the contract notice to act in that behalf for the other Greenwoods not signing the same. That they all duly joined the statutory demand for immediate possession, and were parties plaintiff to the suit for possession, is supported by the record and evidence.

The rule of the common law as to the sufficiency of the contract notice (in the absence of a statute to the contrary in the state) obtains in this jurisdiction, and the notice given was sufficient to reduce the terms as indicated.

The application for rehearing is overruled.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.