Wheeler v. Wheeler

Start, J.

The action, commonly called “justice ejectment,” was returnable before a justice of the peace, and brought under V. S. 1560, which provides that, when a lessee of lands or tenements, whether the lease is by writing or parol, or when a person holding under such lease, holds possession of said demised premises without right, after the determination of the lease by its own limitation, or after breach of a stipulation contained in the lease by the lessee or a person holding under him, the person entitled to the possession of the premises may have from a justice a writ to restore him to the possession thereof.

The right of* the plaintiff to maintain her action depended upon her showing facts which brought her case within this statute. The burden was on her to' show that the defendant was in the possession of the premises under a lease, written or parol, and that the lease had terminated by its own limitation, or that there had been a breach, on the part of the defendant, of a stipulation contained therein. The statute giving a justice jurisdiction in such cases applies to no other holding- of premises. It does not apply to a detainer of lands and tenements, unless they are held by a technical lessee after all title and right in him, both legal and equitable, has ceased. *180 Davis v. Hemenway, 27 Vt. 589 ; Pitkin v. Burch, 48 Vt. 521 . It is evident that the plaintiff, in the court below, understood that the burden was on her to- show that the defendant was in possession under a lease, which had terminated by its own limitation, or by reason of a breach, by the defendant, of a condition contained therein, for she gave evidence tending to show, that, prior to 1888, she was living alone on the farm in-question; that she told the defendant, that, if he would come and live with her and doi as a son ought by her, he should have what was on the place and should have a home with her while she lived; that the defendant moved on to the farm and lived with her until 1902, when he choked and scratched her; that he became unduly intimate with a woman who' kept house for him; and that, because of this, she left the place and went to live with her daughter. It is unnecessary to decide, and! we do not decide, whether this testimony tends to show that the defendant was a lessee of the premises. It is sufficient to say, that the defendant, notwithstanding the statute of frauds, which was insisted upon by the plaintiff, had a right to meet the testimony of the plaintiff by showing that he was not a lessee of the premises, and that the case was not one over which a single justice had jurisdiction. For this purpose, he was properly allowed to show, that the contract, under which he went to- live with his mother, was, that he should stay with her, carry on the place, fix it up, each should pay half the expense of the family, and, when she was done with the place, he was to have it; that, under this agreement, he went on to the farm, made various improvements, always used his mother as a son should; and that she left the farm- without cause.

There being no written agreement between the parties respecting the defendant’s occupancy of the premises, the plaintiff was not in a situation so- she could rightfully insist *181 upon the Statute .of Frauds. In order to- make a case over which the justice had jurisdiction, she was under the necessity of resorting to oral evidence of the contract under which she claimed the defendant was in the possession of the premises as lessee; and what that contract was, was an issue "brought by the plaintiff into the case; and the defendant could, 'by oral evidence, disprove the contract which the plaintiff’s •evidence tended to show. The defendant’s evidence tended to show, that the contract, under which he went to live with 'his mother, was one -over which a justice of the peace had no jurisdiction; that there had been no breach of the contract on his part; and that he was not wrongfully in the possession'of the premises. Such being the tendency of the evidence, the court could not rightfully order a verdict for the plaintiff; .and her motions for a verdict, and for a judgment notwithstanding the verdict, were properly denied. As bearing upon the question of whether the holding of the premises was as the plaintiff claimed, or as the defendant claimed, the defendant was permitted to show, subject to the plaintiff’s objection .and exception, that he had improved the farm, had built a horse barn, a manure shed, a carriage house, lean-to, a portico, .•shingled the house, bought a spring of water, laid thirty rods of lead pipe to the house, cleared the rocks from a large part of the farm, purchased farming tools, and whereas he had only •one cow and one horse when he went there, he now kept from •eleven to thirteen cows; and that the plaintiff made a will in his favor, willing him the place. This evidence tended to render the defendant’s claim, that he was to have the farm- when his mother was through with it, more probable, and was admissible. Armstrong v. Noble, 55 Vt. 428 ; Houghton v. Clough, . 30 Vt. 312 .

*182 If the defendant had been a lessee, holding over after the lease had terminated by its own limitation, or after a breach by him of a stipulation contained therein, no notice to quit would have been necessary. Horan, v. Thomas, 60 Vt. 325 , 13 Atl. 567 . But the plaintiff did not raise this question in the court below. On the contrary, she tried her case upon the theory that, in order to recover, she must show that she gave the defendant reasonable notice to quit; and she gave evidence tending to show that, in the latter part of January, 1903, she gave him notice to yield toi her the possession of the premises on or before May 1, 1903; and she asked the court to rule, as a matter of law, that the notice was reasonable. This the court declined to. do. In this there was no error. The reasonableness of the notice depended largely upon circumstances, such as the time required for the removal of buildings, sale or other disposition of crops and other property raised or produced on the farm, and the procuring of other accommodations. Amsden v. Blaisdell, 60 Vt. 386 , 15 Atl. 332 . The plaintiff having made the reasonableness of her notice to quit an issue in the case, and insisted upon it, it was for the jury to say whether, under all of the circumstances disclosed by the evidence, the notice was reasonable.

Judgment affirmed.