
    I. T. Waller, Appellant, v. Charles Vermitt and Frank Vermitt.
    landlord and Tenant — Notice to Quit: construing or statute. The requirement of McClain’s Code, section 3X90, that the notice to quit, served upon a tenant occupying and cultivating a farm, must fix the first day of March as the time to quit, does not apply where there is an express agreement that the tenancy shall cease at a time agreed upon, without notice.
    
      Appeal from Ringgold District Court. — Hon. H. M, Towner, Judge.
    Thursday, April 9, 1896.
    This is a proceeding in forcible detainer, by which the plaintiff seeks to obtain the possession of a farm of two hundred and forty acres. There was a demurrer to the petition, which was sustained, and judgment was entered for the defendants. Plaintiff appeals.—
    
      Beversed.
    
    
      Asher Brothers for appellant.
    
      Wright & Lee for appellees.
   Rothrock, C. J.

The proceeding was commenced before a justice of the peace. A formal petition was filed, from which it appears that the defendants were tenants on the farm of the plaintiff, the possession of which is in dispute, and on the fourth day of September a written agreement was entered into between the parties, by which the defendants were to deliver certain property to the plaintiff, and perform some labor on the land, and give up possession of the farm “the last of October, 1894.” The plaintiff took no steps to obtain possession of the land until January 8, 1895, when he caused a notice to be served upon the defendants to quit the possession within thirty days. After the expiration of that time, and on the fourth day of February, 1895, this action was commenced. Three days before the action was instituted, another notice was served on the defendants to surrender the possession. The defendants answered the petition, in which answer they admitted the execution of the written agreement set out, and that the lease “expired on or about the last day of October, 1894,” but alleged there was an oral agreement between the parties for the rental of the farm for the year 1895. A trial was had before the justice of the peace, which resulted in a judgment for the plaintiff, and a warrant of removal was issued, and the defendants were removed from the farm. An appeal was taken to the district court, and, when the parties appeared in that tribunal, the defendants filed a demurrer to this petition. It does not appear that the answer was withdrawn, but the demurrer was taken up and submitted to the court, and it was sustained. Thereupon the defendants filed a motion for a writ for the restitution of the property. The motion was sustained, and the writ issued, and the plaintiff appealed to this court.

In view of the proceedings before the justice, and the averments of the petition, we are unable to understand upon what ground the demurrer to the petition was sustained. The demurrer was in these words: “Comes now the defendants, and demurs to the plaintiff’s petition and the amendment thereof, for the reason that, it does not entitle the plaintiff to the relief demanded, or any relief whatever. For said petition shows upon its face — First, that these defendants held peaceable and uninterrupted possession, with the knowledge of the plaintiff, for more than thirty days, after the cause of action accrued, if it ever did accrue; second, said petition shows, upon its face, that the notice, alleged to have been served, was not served to terminate the tenancy on the first day of March, as is required by section 8190, of McClain’s Code, in cases of tenants occupying and cultivating a farm.”

We have set out the demurrer, and the substance of the pleadings, because counsel for appellees, in their argument, seek to sustain the ruling of the court below, upon the ground that but one of the defendants signed the contract terminating the lease; and it is insisted that one joint tenant, or tenant in common, cannot, by any written agreement, terminate the interest of his joint tenant. This record does not present that question. It is neither raised by the answer, nor by the demurrer. The demurrer is based upon the ground that the motion to quit should have fixed the first day of March as the time to quit, as required by section 3190, of McClain’s Code, because the defendants were occupying and cultivating farm land. But that provision of the law has no application to the facts presented by this record. The same section of the Code provides that, where there is an express agreement, the tenancy shall cease at the time agreed upon, without notice. See Kellogg v. Groves, 53 Iowa, 395 (5 N. W. Rep. 517), and Johnson v. Shank, 67 Iowa, 115 (24 N. W. Rep. 749). The demurrer should have been overruled. The judgment of the district court is reversed.  