The appellant failed to give the appellee notice on or before the 1st day of November, 1923, but let that date pass without such notice of renewal, but a letter was posted on November 6, 1923, addressed to the appellee, giving notice of their intention to renew. The manager of appellant says that he thinks he wrote the notice on the night of the 2d of November, and thinks he mailed the letter that night. He also testified that at the time of writing such notice he had knowledge that suit was going to be filed before he sent such letter. On the 8th day of November, 1923, the appellee, Mrs. Johnson, made affidavit before a justice of the peace "that the Copiah Hardware Company, tenant, after the expiration of its term and without permission of this affiant, owner, and lessor, holds and refuses to deliver possession of the following described premises." The appellant filed the following plea or answer to such proceeding before the justice of the peace:

"Now comes the Copiah Hardware Company, defendant, and in answer to the affidavit of Mrs. Serena Johnson denies that it is holding said premises over after the expiration of their term, but asserts that it is holding said premises under a legal and valid contract and the right of renewal and extension thereunder, all of which have been construed and upheld by the Supreme Court of the state of Mississippi."

The case referred to in which the contract was construed is Copiah Hardware Co. v. Johnson, 123 Miss. 624, 86 South. 369, in which decision the court held that the original lease was a valid contract, and that under it the appellant had a right to renew the lease by giving the proper notice for one year at a time as long as they might desire to do so. The appellee proceeded under the provisions of section 2383, Hemingway's Code (section 2885, Code of 1906), the pertinent part of which reads as follows:

"A tenant or lessee at will or at sufferance, or for part of a year, or for one or more years, of any houses, lands, or tenements, and the assigns, under-tenants, or legal representatives of such tenant or lessee, may be removed from the premises by any justice of the peace of the county, or by the mayor or police justice of any city, town, or village where the premises, or some part thereof, are situated, in the following cases, to-wit:

"First.-Where such tenant shall hold over and continue in possession of the demised premises, or any part thereof, after the expiration of his term, without the permission of the landlord," etc.

Section 2380, Hemingway's Code (section 2882, Code of 1906), provides that "notice 100 SO.-3

to quit shall be necessary only where the term is not to expire at a fixed time."

It is the contention of the appellant that this section is not applicable to the present case, and that the lease contract did not expire at a fixed time, and the fact that the tenant remained in possession for eight days after November 1st before proceedings were instituted, was a holding over for another annual term. The appellant also contended that the contract gives the right of an extension of lease as distinguished from a renewal of lease, and that the case of Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 South. 140, L. R. A. 1916E, 1227, is authority for that position. In that case the court discussed the principles of the necessity of notice in the one case and the absence of the necessity of such notice in the other, and held in the case before it then, taking all of the facts into consideration, that the notice was not necessary. The case, however, announces the rule to be that, if it is a renewal contract, notice must be given of the intention to renew before the expiration of the term or while the term of the lease is still in force, but in the case where the option is for the extension of the lease that such notice need not be given, but the tenant may continue in possession, and the fact of possession will evidence its intention to exercise the option of extension.

The contract before us gives the lessee the right and privilege, or their assigns the right and privilege, "to renew this lease for one year at a time." The option given is to renew the lease. It is not a lease for a term with right to hold over as long as the party may desire, or for a stated period, but is a right to renew the lease for one year at a

time.

The original lease was for one year from the 1st of November, 1917. Consequently the lease expired November 1, 1918, and the new lease began on that date under the letter above quoted giving notice to that effect prior to the 1st day of November, 1918. The letters subsequent to November 1, 1918, stipulate the beginning and ending of the term. Consequently each term began and ended at specified dates. Consequently, under the terms of section 2380, Hemingway's Code (section 2882, Code of 1906), no notice to quit or vacate was necessary, and the lessor had the option to treat the tenant as a trespasser after that date. The views here expressed find support in McClintock v. Joyner, 77 Miss. 678, 27 South. 837, 78 Am. St. Rep. 541. The circuit court granted a peremptory instruction for the appellee, and entered judgment thereon in favor of the appellee, which judgment is in accordance with the views herein expressed and must be affirmed.

Affirmed.

F. H. Bush and M. W. Boyd, both of Laurel, for appellant.

E. C. Sharp, Asst. Atty. Gen., for the State.

PER CURIAM. Affirmed.

*Suggestion of error overruled June 9, 1924.

DALE. (No. 23960.)†

(Supreme Court of Mississippi, Division A. May 19, 1924.)

Appeal from Circuit Court, Coahoma County, Second District; W. A. Alcorn, Jr., Judge.

† Suggestion of error overruled August 28, 1924.

Louisiana & Northwest Railroad Company, was injured by the train of the Athens Lumber Company, which it was operating over the line of said railroad company, under a contract by the terms of which the said Athens Lumber Company obligated and bound itself to be responsible for all damages that may occur in consequence of its operating its locomotives or trains over the tracks of said railroad company.

Bailey instituted suit against the railroad company and the Athens Lumber Company for said injuries received by him, and prayed for judgment in solido against both defendants for the sum of $10,000. A judgment was rendered in Bailey's favor in the lower court against both defendants in solido for the sum of $3,500 with costs, and was affirmed by this court on appeal. See Bailey v. La. & Northwest R. R. Co. et al., 129 La. 1029, 57 South. 325.

The receiver of said railroad company, alleging in his petition that said judgment has been paid by the Athens Lumber Company, the same being a debt of the Athens Lumber Company, for which under its contract it alone is responsible as between the railroad company and itself, has instituted the present suit to have said judgment canceled, and removed from the records, as it operates as a judicial mortgage against the property of the railroad company.

Petitioner alleges that the Athens Lumber Company is a subsidiary of the Chicago Lumber & Coal Company; that the officers and stockholders of the latter company own and control a majority of the stock of the said Athens Lumber Company; that said companies entered into a fraudulent agreement to procure the National Bank of Commerce, of Kansas City, Mo., to advance the money and pay off the Bailey judgment against the railroad company and the Athens Lumber Company, and to take an assignment of said judgment in their name, and to hold the same until such time as the Chicago Lumber & Coal Company instructed them to transfer the same to whomever they stated. Petitioner alleges that in order to carry out said fraudulent scheme the National Bank of Commerce caused one Fred D. Whiting to take an assignment in his name, which was done for the benefit of said bank, in accordance with the fraudulent agreement between said Chicago Lumber & Coal Company and the Athens Lumber Company. Pe titioner alleges that the Chicago Lumber & Coal Company paid the said bank, and the said amount paid was the proceeds of the Athens Lumber Company's output of its mill plant, which the Chicago Lumber & Coal Company, its officers and stockholders owned and operated, and that for this judgment of Bailey they were both liable by virtue of said Chicago Lumber & Coal Company owning and controlling the Athens Lumber Com

Petitioner alleges that the acts of the said Chicago Lumber & Coal Company, the Athens Lumber Company, the National Bank of Commerce, and Fred D. Whiting was a fraudulent simulation entered into by all of said parties to shield and protect the said Athens Lumber Company and its property from paying the judgment for which it was responsible, and thereby force the Louisiana & Northwest Railroad Company to pay same.

Petitioner alleges that the Chicago Lumber & Coal Company allowed said assignment to Whiting to remain in his name until the said Chicago Lumber & Coal Company and the Athens Lumber Company could dispose of all the Athens Lumber Company's property of every kind and nature, and dissolve its corporate capacity, the Chicago Lumber & Coal Company receiving the benefits of the proceeds of said Athens Lumber Company's property and assets well knowing that the Louisiana & Northwest Railroad Company was making every effort to locate and prove the payment of this Bailey judgment, and that they knew that it instituted a suit against the Athens Lumber Company to declare this judgment the debt of the Athens Lumber Company and to decree it paid. Petitioner alleges that they also knew that the National Bank of Commerce and Whiting refused as witnesses in said cause to state anything connected with said assignment of said judgment, or to give any statement of the entries on their bank books wherein the payment or assignment appeared, and declined to give a statement of the account of the Chicago Lumber & Coal Company with said bank. Petitioner alleges that they also knew that the lower court in said suit of Louisiana & N. W. R. R. Co. v. Athens Lumber Co., 134 La. 788, 64 South. 714, L R. A. 1915B, 856, decreed that the Athens Lumber Company was responsible for the Bailey judgment, and ordered them to pay the court expenses, which the railroad had incurred and paid in defending said Bailey.

Petitioner alleges that the Chicago Lumber & Coal Company now claims that it is the owner by purchase and assignment of the Bailey judgment, and that said claim of ownership is a fraudulent simulation as stated above.

Defendant company denies, of course, any fraudulent simulation, scheme, or agreement of any sort; alleges its good faith in purchasing said judgment, and its subrogation by the said Bailey to his rights to enforce the said judgment against either or both of the parties thereto, precisely as the said Bailey might have done. Defendant denies that the amount which it paid to Bailey for the purchase of the said judgment was the proceeds of the Athens Lumber Company's output of its mill plant, and defendant denies that it owned or operated the Athens Lum