This action was brought in the county court by the appellee, who is the owner of the land in controversy, under sec. 948, Mississippi Code 1942, by which she seeks to recover possession of the land from the appellant, who, she says, was her tenant, holding over without any right so to do. She does not seek to recover any rent for the premises.
The appellant says that he was not a tenant of the property, but was in possession of it under contract for its purchase, and, therefore, his relation to the land was *Page 115 that of a vendee thereof. The question presented, therefore, is whether the appellant was in possession of the property as a tenant of the appellee, without the right to continue in possession thereof. This question was answered by the county court in the negative. The circuit court, on appeal thereto, reversed the judgment of the county court, and by an agreement of counsel the case was then tried by a circuit judge without a jury, resulting in the above question being answered in the affirmative, and the rendition of a judgment awarding the possession of the land to the appellee.
On October 22, 1933, the appellee notified the appellant to "vacate, deliver up and quit the premises." The appellant failed to comply with this notice, but continued in possession of the land, and this action was begun on January 29, 1944.
According to the evidence for the appellee, the appellant, on October 22, 1943, was in possession of the land as her tenant, but that his right to continue possession thereof terminated with the notice to vacate given him on that day. According to the evidence for the appellant, he was then in possession of the property under a parol agreement with the appellee's husband (which agreement, we will assume, was known to, and approved by, the appellee), to convey it to him on the payment of a stipulated price therefor, a portion of which has been paid.
Both of these contentions find support in the evidence. One or the other is correct, and it matters not which, for under either of them the appellant was a tenant of the appellee. Under the appellee's contention the appellant's right to continue in possession of the property as the appellee's tenant ceased with the notice given him on that day. Under that of the appellant he was a tenant at will or sufferance, it matters not which, of the appellee, for the reason that his possession of the property was not under a deed thereto, but under a parol agreement. Ezell v. Parker, 41 Miss. 520; 35 C.J. 1137. Whether he was such prior to the notice given him in October, to vacate *Page 116 the premises (in which connection see Harvey v. Daniels,133 Miss. 40, 96 So. 746), is immaterial, since the appellee does not seek to recover rent for the land. The judgment will be affirmed.
The appellant's appeal bond stipulates that if the judgment should be affirmed he will "pay all costs and the value of the use and occupation of said land after the time of taking the appeal, and damages for waste or injuries to the land not embraced in the use and occupation, after taking the appeal," and the appellee requests that the cause be remanded to the court below for the ascertainment of the amount of the damages covered by this bond. This question has not been argued by either counsel. Consequently, no judgment will be rendered at this time for damages of any character on this bond, but counsel for the appellee may, within fifteen days from this date, file a motion for such a judgment, stating exactly what that judgment should be and referring to the sections of the Code authorizing it. This motion should be accompanied by a brief, to which counsel for the appellant may reply within ten days after its filing; the rejoinder of counsel for the appellee to be filed five days after the filing of the brief of counsel for the appellant, copies to be served in accordance with the rules of this court.
So ordered.