111 Ala. 269 | Ala. | 1895
This was an action in which the appellee, as administrator .of James S. Bain, deceased, was plaintiff, and the appellant was defendant. The complaint contains a single count, alleging that the defendant was indebted to the plaintiff in the sum of four hundred dollars, for the rent of lands for the year 1891, due and payable on the 15th November, 1891. The defendant pleaded the general issue and three special pleas. The first special plea is, that the agreement oy contract on which the suit was founded was not in writing, and was offensive to the clause of the statute of frauds directed against agreements not to be performed within one year. The second avers that the contract was for the sale of an interest in lands for a term longer than-one year, and was not in writing, offensive to the fifth clause or subdivision of the statute. The third, in substance, avers that the premises rented, at the time of the renting, were in possession of one George Bain, a former tenant of the plaintiff, who refused to surrender possession thereof, continuing to hold them during the term, and that plaintiff, though requested, failed and refused to place the defendant in possession. Issue seems to have
The facts as to which there is no conflict in the evidence, are, that on'the 20th day of December, 1890, the plaintiff offered the lands for rent at public outcry, for a term of one year, to commence on the 1st day of January, 1891, and the defendant became the highest bidder at the sum of four hundred dollars, payable on the 15th day of November, 1891; but of, the renting or agreement there was no note or memorandum in writing signed by either party.
The agreement was not for a lease of longer term than one year, and, of consequence, not within the influence or operation of the fifth clause or subdivision of the statute of frauds, upon which the third plea is founded. It was a verbal renting or lease for a term of one year, to commence in the future, within the influence of the first clause or subdivision of the statute, directed against verbal agreements which by their terms are not to be performed within one year from the making thereof.— Thiess v. Crommelin, 31 Ala. 412; Parker v. Hollis, 50 Ala. 411; Treadway v. Smith, 56 Ala. 345; Martin v. Blanchett, 77 Ala. 288; White v. Levy, 93 Ala. 484; Smith v. Pritchett, 98 Ala. 649. It is insisted, as the action is founded wholly on the promise of the defendant to pay the rent, and as that, by the terms of the agreement, was payable within less than a year, the case is not within the influence of the statute.
The consideration of the promise to pay the rent, and. its only consideration, was, that the plaintiff, on the commencement of the future term, would let the defendant into the possession and enjoyment of the premises, and during the term would maintain and defend the possession against his own acts, as well as against dispossession or disturbance by title paramount. The promise cannot be dissevered from the consideration; and, to support the present action, the plaintiff, of necessity, must have shown the agreement in its entirety. — Lapham v. Whipple, 8 Metc. 59. An entire agreement can not be within the statute of frauds as to a part, and without it as to the residue. — Atwater v. Hough, 29 Conn. 508. In Browne on Statute of Frauds, (5th ed.) , § 140, the principle is stated: ‘‘It is clear that if the several stipulations are so interdependent
There are cases in which a party, having performed a part, of an agreement, separable and divisible from the part offensive to the statute, may recover on the part so performed. An agreement may relate to a sale of personal property, and to a:sale of an interest in land, and a specific price of value fixed on the personal property, of which there has been delivery. By the agreement the species of property are separated and distinguished, and there may be a recovery of the price or value of the personal property, though as to the land the agreement is void. — Rainbolt v. East, 56 Ind. 538; s. c. 26 Am. Rep. 40. Such cases are readily distinguished from cases like the present. The parties sever the contract, and apportion its consideration. But here it was performance of the agreement in its entirety the parties contemplated and without performance by the plaintiff, the promise of the defendant was without consideration. A severance of the agreement would do violence to the intention of the parties, and work injustice to the defendant. It is clear, upon all the authorities, that, as the plaintiff is suing upon the agreement, he cannot maintain the action, — cannot maintain it, for the agreement- rests in parol; it was not by its terms capable df performance within a year from its making, and parol evidence of it the statute interdicts. — Brown on Stat. Frauds, § 144. The circuit court erred in the refusal of the general affirmative charge requested by the defendant.
This conclusion renders unnecessary a consideration of the numerous instructions given at- the instance of the plaintiff, to which exceptions were reset ved. It is apparent, however, a matter of much controversy was whether the defendant was let into or obtained possession of the premises, occupying them by his tenant during the term. If the complaint be amended by the addition of a count for the use and occupation, as may' be
The action will not lie, unless the defendant was let into possession and occupied the premises, either personally, or by an under tenant. The possession is of the essence of the right of recovery. — 2 Taylor Landlord and Tenant, § 641; Tully v. Dunn, 42 Ala. 262. At the time the term would have commenced, the premises were in possession of a prior tenant of the plaintiff. If the possession of this tenant was continued during the term, and it is sought to impute his possession to the defendant, it must be shown that he attorned to, or agreed to become the tenant of, the defendant. The fact may be shown by circumstances, or it may arise by implication from the conduct of the parties ; it is not necessary that an express attornment or agreement be proved. What facts or circumstances may by shown to raise the implication are not now capable of precise definition. But it is only such as afford a reasonable presumption or inference of the main fact. Mere acquiescence by the defendant in the continued possession by the tenant is not a relevant fact or circumstance. Acquiescence imports submission'to that which could be resisted or avoided ; and the defendant was without right or remedy to resist or avoid the continued possession of the prior tenant. The'right and remedy resided exclusively in the plaintiff, and if he would convert the defendant into a tenant, he must show that he opened the premises to his quiet entry and possession, or that the necessity of
The judgment is reversed, and the cause remanded.
