Lamar v. McNamee , 10 G. & J. 116 ( 1838 )

Stephen, Judge,

delivered the opinion of the court.

This appeal presents but one question for the decision of this court, and that arises upon the operation of the statute of frauds and perjuries, upon the agreement entered into between the parties, relative to the relinquishment by the appellee, of his unexpired interest in a lease for years, which he held under the appellant. The agreement was by parol, and possession was delivered by the tenant to his landlord, according to the terms of the contract of relinquishment.

It was contended by the appellant in the court below, that the agreement being a verbal one, was inoperative and void by the provisions of the statute of frauds, which requires the surrender of such an interest to be in writing, unless effected by the act and operation of law. The county court refused to sustain the objection, in consequence of which the evidence was permitted to go to the jury, and the plaintiff obtained a verdict. It appears by the bill of exceptions, that the plaintiff to maintain the issue on his part, proved by a competent witness, that on the 11th of August, 1834, he was called upon by the plaintiff and defendant, to settle a dispute between them, relative to a certain saw mill, then held by lease in writing by the said plaintiff of him the said defendant; and that said lease would expire on the 1st day of April, 1835, next ensuing; and also some unsettled accounts existing between said parties relative to said leased premises. The plaintiff also offered in evidence, that the plaintiff agreed to and with the said defendant, to give up and surrender to him the said defendant, the possession of said saw mill and premises so leased as aforesaid on the said 11th day of August, 1834, and also to release and give up his claims against the defendant, for sundry sums of money, laid out by him in repairing the said leased premises, in consideration of which, the defendant promised to pay the said plaintiff the sum of one hundred and thirty-six dollars, for the recovery of which, this action was brought. The plaintiff then offered further to prove by the said witness, that in pursuance of said agreement, he did, on the same day, surrender and give up to said defendant, the actual possession of the said leased premises, and that the defendant has from that day held possession of the same, and that the plaintiff had abandoned or given up his claims for the repairs of the said leased premises. The defendant thereupon by his counsel, prayed the court to instruct the jury, that upon this proof the plaintiff was not entitled to recover, because the said agreement was by parol, and not in writing, and void by the statute of frauds. This objection being overruled by the court, the defendant appealed to this court, who have now to decide upon the legality of that opinion. After the best consideration we have been able to bestow upon this case, and the question raised in it by the bill of exceptions, we have come to the conclusion, that there is no error in the opinion of the court below, of which the appellant has a right to complain. We think it in perfect accordance with the well established principles of law, and that the agreement, although by parol, according to the facts given in evidence, was legally efficient, and. available to transfer from the appellee to the appellant, all his unexpired interest in the premises, vested in him by the lease, in virtue of- which he held as tenant. The agreement, although by parol, was not executory, but was immediately executed by the relinquishment of the possession of the premises by the tenant, and a simultaneous taking of the possession by the landlord. The occupation of the one ceased, and that of the other commenced, so soon as the contract was entered into. The principle seems to be well established that, although a tenant who has quitted in pursuance of a parol license from his landlord, and without having given a notice to quit, remains liable; yet if the landlord accepts a third person as his tenant, the acceptance of such substituted tenant operates as a surrender in law of the first tenant’s time. For this principle see Roscoe on Evidence, 143, 144, and if the acceptance and substitution of a new tenant, will operate as a surrender of the term by operation of law, within the statute of frauds and perjuries, where the possession is vacated by the former tenant, prior to such substitution, it would seem, upon reason and principle, that the taking of possession by the landlord himself, upon the abandonment of the possession by the tenant iiv^rsuance of a parol agreement, ought to have the sanie effeW. 1 His occupation ceases with the consent, and by the act of his landlord, and his liability for rent ought to cease and terminate with it. In 1 English Common Lato Reports, an action was brought for the use and occupation of a house. The plaintiff proved that the defendant had been tenant from year to year of his house; the defendant proved'a parol agreement, that the plaintiff would give up his claim to the rent, on the defendant’s giving up immediate possession in the middle of the quarter; both parties accordingly went before a magistrate, and the defendant there gave up the key, which the plaintiff accepted, and the defendant" was never after that time in the possession of the premises. ' The plaintiff sought to recover for a term subseqent to his resuming the key, and he insisted that the tenancy was not thereby determined by reason of the statute of frauds. In that case, the counsel for the defendant contended, that as a less lease than three years may be created, so might it be surrendered, without writing. Gibbs, C. Justice, observed, that the clause of the statute of frauds, which restricts estates created by parol to three years, had nothing to do with that which requires surrenders to be in writing. He then observed that the action could not be supported. The plaintiff had taken possession of the house, and the defendant could not therefore occupy it for the same time, if he would.

The same principle is established in 15th English Common Law Reports, 229, where the court held, that the action for use and occupation could not be sustained, there being a verbal agreement that the tenant should deliver up the possession of the house which the landlord took accordingly. In this case the decision in lsi English Common Law Reports above referred to, is cited by the court and confirmed.

We do not think that there is any thing in the case of Lamott vs. Gist, 2 Har. & Gill, 433, which impugns the principles sanctioned by the above decisions. In that case, the parol agreement to surrender was executory, and had not been consummated by the delivery of possession when the distress was levied by the bailiff of the landlord. The tenant still remained in possession, and it was optional with him whether he would fulfil his contract to surrender or not. Every thing rested upon the parol agreement, and that agreement being inoperative and void by the statute of frauds, as he was not bound by it, so neither was it obligatory upon his landlord-: for where both parties are competent to contract, a mutuality of obligation- is deemed to be essential to its obligatory force upon either. For this principle, if authority be wanted for so plain a proposition, see 3 Term Reports, 653. In that case, Oxly agreed to sell goods to Cook, if he would purchase them, and. give notice of his assent to purchase by a limited period. He gave the notice within the prescribed period, but as the engagement in the mean time was all on one side, the seller was held to be at liberty to recede, upon the ground, that under the circumstances of the case, a mutuality of obligation was wanting. Considering the decision of the court below to be correct, we affirm their judgment.

JUDGMENT AFFIRMED.