Banbury v. Sherin

Citations

• 4 S.D. 88
• 55 N.W. 723
• 1893 S.D. LEXIS 47

Syllabus

<p>1. A complaint which alleges the making of a verbal lease for a term not specified, but from ‘ ‘month to month, ” and the giving of a month’s notice to the lessee to quit, shows a termination of the lease.</p> <p>2. The recording of a deed not entitled to record by reason of defective acknowledgment does not carry constructive notice of its contents, but—</p> <p>3. Such defectively acknowledged deed, being good between the parties to it, is competent evidence tending to show ownership in the grantee, and consequently his right to give notice to quit.</p> <p>4. An exception as follows: “We except to each of the instructions given by the court to the jury, respectively,” is not such an exception as entitles appellant to a review of the general instructions given by the court to th.e jury.</p> <p>5. When a tenant remains in possession of leased property after the expiration of the term of the hiring, and the lessor accepts rent, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one year. Section 3741, Comp. Laws.</p> <p>6. In this case appellant hired for one year from April 1, 1886, at a monthly rent. He held over, paying rent, without any new contract, to his lessor, thus renewing the old lease for another year. In the same manner it was renewed for a third year. During the last month of the third year respondent, who had purchased the premises of the lessor, gave the lessee written notice that the lease would not be renewed, and to surrender the possession on or before May 1, 1889. Held, that after said May 1, 1889, appellant was in wrongful possession, and respondent was entitled to recover damages therefor.</p> <p>7. Held, further, that respondent did not renew the lease for another year by making an unsuccessful demand upon appellant for rent for use of the premises for the month of April, for such rent accrued, if at all, not under or by virtue of the lease, but under the license of the notice, which di