
    Agnes Krull, appellee, v. Eden A. Ross, appellant.
    Filed February 28, 1911.
    No. 16,240.
    1. Landlord and Tenant: Holding Oyer. If a tenant under a written lease for the term of three years holds over 45 days after the expiration of his term without the consent of the landlord, he will not become a tenant from year to year, unless the landlord has recognized him as tenant while so holding over.
    2.-: Notice to Quit. The notice to quit prescribed by the statute of forcible entry and detainer is not for the purpose of terminating the tenancy, but is rather preliminary to the action for recovering possession, and is properly given after the right of action has accrued.
    Appeal from the district court for Thurston county: Guy T. Graves, Judge.
    
      Affirmed.
    
    
      J. A. Singhaus and F. 8. Howell, for appellant.
    
      O. G. Anderson, H. L. Keefe and F. Dolezal, contra.
    
   Sedgwick, J.

The defendant had possession of the land in question under a lease for a term of three years which ended on the 1st day of January, 1906. He failed to surrender possession of the premises at the end of his term, and in February, following, this action of forcible entry and detainer was begun in the justice court by the landlord to recover possession of the land. The action was appealed to the district court and there tried, and judgment entered in favor of the plaintiff, and the defendant appeals.

The position of the defendant, as we under stand it in the brief, appears to be that, having held over his term for about 45 days before the notice to quit was served upon him, he must be considered as a tenant from year to year, and that such tenancy cannot be terminated without the six months’ notice. “Where a tenant for a year remains in possession over his term, and is recognized as a tenant by the landlord, and no new contract is shown, he becomes a tenant from year to year.” Montgomery v. Willis, 45 Neb. 434. That is, when a term stipulated in a written lease for a year has ended, and the landlord recognizes him as tenant thereafter by receiving rent or in any other way, showing that both parties regard the relation of landlord and tenant as still continuing, and there is no further agreement as to the terms of the tenancy, defendant is to be considered as holding for another term upon the same conditions as specified in the original lease. In this case the landlord did not recognize him as tenant in any way after the term expired, and there is, of course, no presumption that the parties had agreed that the same relation of landlord and tenant should continue for another year.

The three days’ notice to quit prescribed by the statute of forcible entry and detainer is not required for the purpose of terminating the lease. The lease has already ended by its own terms and would not need any notice to terminate it. This three days’ notice is a part of the proceeding to obtain possession when a tenant is wrongfully holding over after his term has expired. This notice is usually given after the right of action accrues, and three days before the complaint is filed with the justice.

The judgment of the district court is right, and is

Affirmed.  