#### W. R. SIMMONS v. EMANUEL JARMAN.

(Decided March 8, 1898.)

Landlord and Tenant — Tenant From Month to Month— Notice to Quit.

1. Where a tenant, under a lease for the year 1890 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 June 1st, 1897, received a notice from his landlord on May 18, 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 ap*196peal before Robinson, J„ at September Term, 1897, of Wayne Superior Court.

On the trial W. R. Simmons, witness for the plaintiff, testified as follows: — “I am the agent of the plaintiff, who resides in the State of Tennessee, and I rented the premises in dispute to the defendant by the month, at $6 per month; rent payable monthly cash in advance, beginning January 1, 1896, with the privilege of a year. The house being in need of repairs it was agreed that the defendant should make the repairs, which should cost $10, and that the same should be credited on the rent, it was the understanding, the repairs being necessary, that they should be made as soon as the defendant took possession. The first payment in money to me by the defendant, on account of said rent, was $2, the balance due for the month of April, and which was paid on the 3d day of May, 1896,. and for which I gave a receipt. He afterwards paid $3 per month rent, at irregular intervals. The rent of each month he paid for the year 1896, and continued on into the year 1897, under the original contract; then he wanted the house fixed. I wrote to plaintiff, who declined to make the repairs; said he had already made an allowance of $10 for repairs. The defendant thereupon said he would not pay the rent until the house was repaired. He owed me two months’ rent, and on May 18,. 1897, I told him he must surrender the premises in thirty (30) days. On June 2nd he paid me $3 rent for the month of May. On June 15th he tendered rent for the month of June, which I refused to accept, and brought suit. ”

On cross-examination, the witness said: “I cannot mention a month, in which the defendant paid his rent in advance. From my receipts to him, shown to me,. *197the earliest date upon which the rent was paid was the tenth day of the month in which the rent was due.”

Floyd Walker, a witness for the plaintiff, testified as follows. — “The defendant told me that he had rented the house, rent payable monthly cash in advance, with privilege of a year.”

The defendant introduced no testimony, but demurred to the evidence offered by the plaintiff, on the grounds:

1. That the evidence showed no stipulation for reentry.

2. That the tender of the rent for the month of June barred any further action.

3. That if. there bad been a right of re-entry, same may be waived by failure to demand payment of rent in advance.

His Honor overruled the demurrer, to which the defendant excepted, and submitted the issue to the jury under instructions.

There was a verdict for the plaintiff and defendant-appealed.

Mr. W. C. Munroe for plaintiff.

Mr. W. D. Pollock for defendant (appellant).

Furches, J.:

The plaintiff rented the premises in dispute to the defendant at the price of $3 per month, to be paid in advance — rental to commence on the 1st day of January, 1896, and the defendant was to have the privilege of retaining possession for the year. The defendant retained possession during the year 1896 and until the 22nd of June, 1897, when this proceeding was commenced.

This constituted a renting from month to month, commencing on the 1st day of January, 1896. And it *198is evident that the parties understood it 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 into 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. Wills, 53 N. C., 430.

This being so, the defendant was entitled to 14 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, Acts 1891, reduced to seven days. The only notice shown to have been given was on the 18th day of May, 1897, and this was “to get out within 30 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 14 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 the 22nd day of 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 nonpayment of rent. Meroney v. Wright, 81 N. C., 390.

We have not considered the other interesting ques*199tion presented, as to the effect of the optional lease, discussed in McAdoo v. Cullum, 86 N. C., 419. There is error and a new trial is awarded.

Error — New trial.