CHARLESTON.

#### Drinkard *v.*Heptinstall.

Submitted March 1, 1904

Decided March 15, 1904.

1. SUMMONS in Uniawfui. *Detainer*— When *Amendable.*

A justice’s summons in a suit of unlawful detainer defective for an insufficient description of the property, may he amended on appeal to the circuit court when substantial justice will he promoted hy such amendment, (p. 322).

*3212. *Pt.eat)ikgs.*— When *Amendable.*

On appeal from a justice the case may be tried on such pleadings as will secure substantial justice between the parties whether such pleadings are made up in court or before the justice. The circuit court may amend- the pleadings to promote the ends of justice and secure a fair trial, (p. 322).

3. *Lease*— Meaning *of Terms Thereof.*

A lease which provides that the tenant may have the refusal of the premises from month to- mionth so- long as the tenant may desire to occupy the premises, is a grant of preference over other proposed tenants if the landlord continues to rent the . property. Such lease terminates at the end of each month, and no notice to quit is necessary. A demand for the possesion of the property is sufficient to prevent a renewal of the tenancy and give the landlord the right to sue for possession at the end of the current month, (p. 324).

Error to Circuit Court, Mercer County.

Action by Iiattie N. Drinkarcl against J. P. Heptinstall. Judgment tor plaintiff, and defendant brings error.

*Affirmed.*

W. Walteu MoClaugiieety, for plaintiff in error.

H. A. Bitz and ANDERSON *&*Easley, for defendant in error.

DbNt, Judge:

J. P. Heptinstall complains, on writ of error, to a judgment of the circuit court of Mercer countjq rendered against him on the 29th day of May, 1902, in favor of Hattie N. Drinkard, in an action of unlawful retainer -entitling her to possession of cer- ' tain property held by the defendant as her tenant. The first error assigned is that the circuit court permitted plaintiff to amend her summons as to the description of the property after motion to quash.

The court did this by virtue of section 212, chapter 50, Code, which reads as follows, to-wit:

> “No such summons shall be quashed or held insufficient for any defect in the description of the premises therein mentioned, if the description be such as to enable a person of common understanding to know what is intended thereby. And if in the opinion of the justice such description is not sufficient under the *322provision of tbis section, tbe plaintiff may amend tbe summons so as to make the description sufficient.” And section 169, chapter 50, says:

> “The appeal may be tried upon tbe pleadings made up in tbe justice’s court, or the pleadings may be amended before or during tbe trial of tbe appeal when substantial justice will be promoted by the amendment.”

It is very plain that tbe court committed no error in allowing such amendment. *Thorn*v. *Thorn,*47 W. Va. 4; *Simpkins*v. *White,*43 W. Va. 125 (27 S. E. 361.)

The second error assigned is because tbe plaintiff failed to reble her affidavit filed before tbe justice denying that title to real estate vrould come in controversy. Tbis vras wholly unnecessary, as such counter affidavit was already in the case, and the issue on tbe same was fully made up before the justice, and because tbe defendant chooses to have an order refiling bis affidavit in court does not destroy tbe issue already joined thereon before the justice. It plainly appears that the title to the property in controversy ivas not inquestion, and the defendant did not even insist on tbe circuit court passing on this question prior to trial, but his refiling the affidavit was regarded as the filing of a plea to which the plaintiff properly entered a general replication. All the other assignments of error relate to the merits of the case and depend entirely on the construction of defendant’s lease. Plaintiff purchased the property in controversy of J. H. Nash, and held a deed for it bearing date 14th August, 1901. On the 15th August, 1901, she served on the defendant the following notice:

> “Bluefield, W. Va., Aug. 15. 1901. Mr. *J.*P. Heptinstall, Bluefield, West Yirginia: Dear Sir: — Owing to the fact that I wish to have the rooms which you now occupy overhauled and papered, I hereby notify you to vacate said rooms at once. Should you remain in said rooms over five days from date of this notice you will be required to pay rents at the rate of twenty dollars ($20) per month, also to pay all water rents. This August 15th, 1901. Hattie N. Drinkard.”

He refused to give up the property and wrote plaintiff a letter as follows:

> *“J.*P. Heptinstall, Lawyer and Notary Public. Eeference— First National Bank, Bluefield, W. Ya., August 16th, 1901. *323Mrs. Hattie N. Drinkard, Bluefield, W. Ya. Dear Madam:— Your notice dated August 15th, 1901, was received to-day. I beg to say that I have a rental contract with II. M. Nash who represented himself to be the owner of the property which I-now occupy, and I shall still claim the rights so acquired by me and shall not comply with the terms of your notice. Bespect-fully, J. P. Ileptinstall.”

Defendant’s lease is in the following words:

> “This deed made the 8th da}»' of June, 1898, between H. ,M. Nash and J. P. Ileptinstall, Withnesseth that the said II. M. Nash doth demise unto the said J. P. Ileptinstall all of the second floor of the two-story brick building belonging to said H. M. Nash, fronting on Bland Street on the east side thereof, in Bluefield, Mercer County, West Yirginia, lately occupied by Y. Y. Airstin, and over that part of said building used by said H. M. Nash' as a grocery store, and doth demise to said Ileptinstall one coal house and one privy on the eastern end of said lot, with the right of ingress, egress and regress through and over said lot to said coal-house and privy, from'the 10th day of June, 1898, to the 10th day of July, 1898, thence next ensuing with the refusal of said premises from month to month thereafter so long as said J. P. Ileptinstall may desire to occupy said premises, said Ileptinstall paying to said Nash therefor the monthly rentals of fifteen 75-100 dollars at the end of each rental montht, said H. M. Nash to furnish water for the use of said Ileptinstall, delivered on said second floor of said brick building, and to pay the water rents, to keep said premises in good repair, and to remove all deposits from said privy, and should said repair not be made or said privy not cleaned within forty-eight hours notice thereof, then said Ileptinstall shall have the power to have same done and deduct any necessary expense incurred therby from the rents of said premises; and nothing shall b¿ paid to said Nash until the rents shall make sufficient returns for payment of the expense so incurred. Witness the following signatures and seals. H. M. Nash (Seal.) J. P. Heptinstall, (Seal.)”

Defendant’s objection to the introduction of plaintiffs deed in evidence, because the description in the summons does not correspond with the description in the deed, is not tenable for the reason that defendant only withheld a portion of the property mentioned in the deed, which undoubtedly covered the same. *324It is insisted en the part,oí the defendant that Ms contract made him an annual renter, and that he was entitled to three months notice to quit, or that he was a periodical monthly renter and entitled to one month’s notice to quit. A careful examination of the lease shows that neither of these propositions are correct. He was not an annual renter for the reason the lease reads, “thence next ensuing with the refusal of said premises from month to month thereafter, so long as said J. P. Hcptinstall may desire to occupy said premises.” These words create a mere preference of renting from month to month, and not a periodical tenancy, and this is, if the landlord continues to rent the property, he will accord to the tenant the privilege of renting at the end of each month of the tenancy. There is no obligation on the landloard to continue to rent his property indefinitely or perpetually to any one or to renew defendant’s lease so long as he may desire to occupy the property from month to month, but at the end of any month, the landlord may desire to cease renting the property he may terminate the *tenancy*by refusal to renew the lease and demand for possession of the property. *Crawford*v. *Morris, 5*Grat. (46 Va.) 90. The defendant’s term ends with his month each time unless it is renewed by the assent of the parties, express or implied, and'no notice to quit is necessary. Code, section 5, chapter 93. A demand for possession and a refusal to renew is sufficient.

The plaintiff gave the defendant notice on the loth day of August that she wanted possession of the property for the purpose of making repairs. He was entitled to hold on until the end of his current month, the 10th day of September following. Thereafter he could not continue to hold without a renewal of his 1 ose. She began her suit for possession on the 16th of September, one month from the time of her demand. She was entitled to possession at any time after the 10th of September, the expiration of the tenancy.

Defendant insists that because plaintiff’s notice contained the following language, to-wit: “Should you remain in said rooms over five days from date of this notice, you will be required to pay rents at the rate of twenty dollars ($20) per month, also pay all water rents,” that this is a renewal of the lease. Such is not the case, but the language is only warning that if he remains over five days and she is compelled to put him out, that she will *325require him to pay her $20.00 per month so long as he unlawfully withholds the property from her.

The notice is that she wants the property at once, and does not want to rent it to the defendant any longer, and cannot be otherwise construed. This determines all material points in favor of the plaintiff.

The circuit court’s judgment is plainly right and is affirmed.

*Affirmed.*