82 Iowa 584 | Iowa | 1891
I. It is conceded that the defendant was in possession of the farm as a tenant under a
“For further answer and defense, defendant avers that on the twenty-sixth day of September, 1888, the defendant and said George Burden entered into a verbal agreement, by the terms of which defendant leased said land for the term of three years from December 1, 1888, for rent of one hundred and seventy-five dollars per year, payable one-half October 1, and one-half December 1, of each year ; and in addition to paying said yearly rent, and as a consideration for said three years’ lease, defendant was to seed down cei’tain land that had been cultivated, and was not good for corn and oats, being about twenty acres. That said seeding was to be done in the spring of 1889. That he has fully performed said agreement in every respect and has seeded down and got into grass said land, and that the consideration for said seeding was that defendant was to have the lease thereof for three years, as herein stated. It was further agreed between said parties that, if said land was sold by said Burden during the three years’ term, defendant was to surrender possession of the premises the December following the sale thereof, and said Burden was to pay defendant for such seeding. That neither said Burden nor his representatives have sold said land, nor have they paid for such seeding. That on the first day of December, 1888, defendant did take possession of said leased land under said verbal lease, and has held the same thereunder ever since, and now holds the same and possession of' the same under and by virtue thereof.”
The plaintiffs replied to the answer by a general denial. After the cause was appealed to the district
■ Section 3663 of the Code provides that, “except when otherwise especially provided, no evidence of the contracts enumerated in the next succeeding section is competent, unless it be in writing and signed by the party charged, or by his lawfully authorized agent.” It is conceded that a verbal lease for more than one year is within the provisions of the next section. It is claimed in behalf of the appellant that the demurrer should have been overruled, because by demurring the plaintiffs admitted the averments of the answer, and it is provided in sections 3366 and 3367 of the Code that contracts within the statute may be enforced when orally made, if admitted in the pleadings or proven by the testimony of the party defendant. We think this is a mistaken view of the issue raised by a demurrer. It is useless to discuss this question. In the case of Babcock v. Meek, 45 Iowa, 137, it is held that a party claiming under a contract, within the statute of frauds, should aver facts necessary to take it out of the statute, or the pleading will be vulnerable to a demurrer. That case has been followed and adhered to as a rule of practice in the .trial courts, and we discover no reason for overruling it.
The judgment of the district court will be aeeirmed.