
    32689.
    Hendrix v. Simpson.
    Decided February 23, 1950.
   MacIntyre, P. J.

Where in a summary proceedings by a landlord to disposses a tenant as holding over and beyond his term, which is denied by the tenant’s counter-affidavit, the only evidence of the nature of the tenancy is that the premises were rented “by the month” with the rent payable on the first of each month in advance, and the record is silent as to the duration of the tenancy, the law will construe the tenancy to be for the calendar year and not a tenancy at will (Code § 61-104; Metzer v. Connally Realty Co., 203 Ga. 15, 45 S. E. 2d, 199; Bowman v. Shroder, 77 Ga. App. 385, 48 S. E. 2d, 682); and, a notice given on September 27 to vacate the premises two months from the receipt of such notice, and a demand to vacate the premises on November 26 are ineffectual to terminate the tenancy. Metzer v. Connally Realty Co., supra; Bowman v. Shroder, supra. Consequently, the trial court erred in overruling the tenant’s motion for a new trial, and the superior court erred in overruling the certiorari.

Judgment reversed.

Gardner and Townsend, JJ., concur.

J. F. Kemf, L. E. Bobet, for plaintiff in error.

L. D. Bums Jr., contra.  