ON A PETITION FOR A REHEARING. On petition for a rehearing appellant seems to be under the impression that we misinterpreted *Page 88 the finding of facts upon which he relies for his insistence that he thereby became a tenant from year to year and entitled to three months' notice to quit. The special finding so relied on by appellant follows:
"that said defendant entered into possession of said premises and held and occupied the same pursuant to said written lease above set forth; that at the expiration of said term, on the first day of January, 1919, said defendant held over and continued to occupy said premises with the consent of the plaintiffs without any further agreement or understanding as to the duration of his term, and during his said holding and occupancy said defendant paid, and said plaintiffs accepted, rent therefor as hereinafter set forth; that during said holding and occupancy of said premises by said defendant as aforesaid there was no change in the terms and conditions of his said occupancy and tenancy except that, on the 1st day of January, 1918, the amount of rental was increased to $35.00 per month, and on the 1st day of January, 1926, the amount of said rental was increased to $50.00 per month; which amounts were paid by said defendant."
Our former reference to this finding we thought sufficient to give the reader of the opinion the question for decision. As we understand the finding above quoted, that part of it beginning with the word "that" and ending with the words "as hereinafter set forth" has reference to the original term of the lease — five years. The remainder of the finding covers not only the period included in the express contract, but the time appellant held over as well, during which "there was no change in the terms andconditions of his said occupancy and tenancy except" (our italics) changes in the monthly rental.
We are still of the opinion that the foregoing italicized clause in the finding must be construed to mean that appellant's holding over was governed by the original contract containing the stipulations for the termination of the lease without furthernotice, notwithstanding the *Page 89 holding over may have been with the consent of the landlord.
In Harry v. Harry (1890), 127 Ind. 91, 26 N.E. 562, it is said: "It is well settled that where the duration of the tenancy is definitely fixed by the terms of the agreement under which the tenant goes into possession of the premises which he is to occupy, and he continues to occupy after the close of the term without a new contract, the rights of the parties are controlled by the terms and conditions of the contract." Citing cases. It has also been held, "The mere fact that a tenant holds over after the expiration of his lease does not create a tenancy from year to year." Habich v. University Park Bldg. (1912),177 Ind. 193, 97 N.E. 539.
The original tenancy, by the terms of the lease in the instant case, terminated January 1, 1919. The findings show that appellant continued in possession of the premises covered 5. by the lease with the consent of appellee without any change in the terms and conditions of his occupancy. In other words, that by consent of the parties the lease was extended not indefinitely or without reference thereto, but in accordance therewith for another year terminating the following January 1st "without further notice," and each holding over was subject to the same terms as to occupancy and termination. Such attendant conditions create a new tenancy, not general or from year to year, but certain in point of time — one year — so fixed by the agreed notice to quit. Whetstone v. Davis (1870),34 Ind. 510.
We therefore conclude that appellant, under the stipulations in his lease, was not entitled to three months' notice to quit prior to January 1, 1928.
Petition for a rehearing denied. *Page 90