Hoover, Rhodes & Co. v. Pacific Oil Co., 41 Mo. App. 317

Hoover, Rhodes & Co. v. Pacific Oil Co.

41 Mo. App. 317 | Mo. Ct. App. | 1890

Lead Opinion

Per Curiam.

The controlling question for decision here is this : Can the agent bind his principal by entering into a written lease of real estate, unless the authority therefor be in writing ? The agent, who executed the lease in controversy, not having authority in writing, by the literal terms of section 2509, Revised Statutes, 1879 (considered alone), the estate created by the renting was an estate at will only. The statute *323thus making the estate merely one at will leaves it, however, with all the common-law incidents of such estates, among which is its convertibility into an estate from year to year, or from month to month, as may be implied by entry and payment of rent. 4 Kent, 112; Williams v. Deriar, 31 Mo. 13; Hammon v. Douglas, 50 Mo. 434; Reeder v. Sayre, 70 N. Y. 180; Browne on St. of Frauds, sec. 38. This is true, notwithstanding our statute at the time of the foregoing cases had not the exception as to leases for a period of three years, as >has the original English statute from which it is taken. This fact disturbed Judge Bliss in Hammon v. Douglas, supra. But it is said in Williams v. Deriar, supra, quoting from Browne on Statute of Frauds, 38, that the doctrine of convertibility of estates at will into estates from year to year by entry and payment of rent is older than the statute, and, therefore, the presence or absence of such exception to the statute does not alter the rule. So, therefore, we are of the opinion that, though there was no written authority to the agent making this lease, which, by the terms of section 2509 (considered unaffected by any other section), made an estate at will, only, yet, since there was an entry and payment of rent thereunder, the estate was converted into an implied tenancy from year to year, or for some other time, as may be indicated by the payment of rent. 2 Blackstone, 140, 143; Shaffer v. Sutton, 5 Binn. 228; Ridgeley v. Stillwell, 25 Mo. 570; Kerr v. Clark, 19 Mo. 132; Ridgeley v. Stillwell, 28 Mo. 401; Goodfellow v. Noble, 25 Mo. 62; Hammon v. Douglas, 50 Mo. 437. The foregoing is the status in which we would consider this case placed, was the lease governed by section 2509, alone.

But, when this section is construed in connection with section 2513, we are of the opinion that the agent’s authority to make the written lease in this case need not be in writing, and that the estate he created was the term named in the lease. By the terms of the latter section, “No action shall be brought * * * upon *324any contract for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year, * * * unless the agreement upon which the action shall be brought * * * shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized.” By reading and construing these sections together, as should be done, since they refer to the same subject-matter, the only reasonable construction is to say that the clause in section 2513, declaring that no action shall be brought upon any lease of lands, tenements or hereditaments for a longer period than one year unless it be put in writing, operates as an exception or proviso — as the statute now stands — to section 2509. This is made quite evident by reference to the original English statute of frauds and those of the different states. Nearly, if not all the states have adopted literally or substantially the first section of the English statute, section 2509, of our statute. And by far the major part of them have also adopted an exception or proviso to the broad terms of that section. This exception in the English statute, is embodied in section 2 as a separate section ; and excepts all leases not exceeding the term of three years. In the states, the exception is enacted in various ways. In some, the proviso is found in the section itself; in others it is a separate section; while, in others, it is embodied in some other section of the same statute. And in most of the states the length of the time of the excepted lease is one. year, instead of three, as in England. The exception of one year is found in the statute of New York, and we have the ruling in that state that a lease for one year or less need not be in writing: Reeder v. Sayre, 70 N. Y. 180; Porter v. Bleiler, 17 Barb. 149, 157. In the latter case it is said: “ The authority to Baldwin (the agent) was not in writing, but this objection is not well founded in relation to leases for a term not exceeding one year.” The one *325year provision is enacted also in Mississippi, and is found in the corresponding section 2513 of our statute, and embodied in the same part thereof. It is held in that state that a verbal lease was void under the statute because made for a longer term than one year. Phipps v. Ingraham, 41 Miss. 256. In California, the sixth section of the statute of frauds as there enacted is that ‘ ‘ no estate or interest in lands, other than leases for a term not exceeding one year, * * * shall hereafter be created or granted * * * unless by deed or conveyance in writing,” by the party granting or creating, “or by his lawful agent thereunto authorized by writing.” It was held thut a lease being made by an agent, not authorized by writing, was void for the reason that it was for more than one year. Folsom v. Perrin, 2 California, 603. So, under a similar statute a like ruling was made in Minnesota: Judd v. Arnold, 31 Minn. 430.

Now section 2513 of our statute declares that no action shall be brought upon any lease of lands, tenements-or hereditaments for a longer time than one year unless such lease be signed by the lessor or some other person' by him lawfully authorized. This section in effect declares that, if the lease is for one year or less, it need not be writing, or if made by an agent in writing, such agent’s authority need not be in writing. In this-view of the case, section 3078 is not applicable, for the reason that the contract of leasing here is in writing. And not being for more than one year, the authority of the agent making it need not be m writing. Judgment affirmed.

Rehearing

ON MOTION POE EEHEAEING-.

Ellison, J.

The contention in this motion is that section 2509 should be construed alone without reference to section 2513. Section 2509 corresponds to sections 1 and 2 of the English statute, and 2513 corresponds to section 4 of that statute, though there is *326material change made by each of our sections. Thus, section 2509 omits the exception of " three years contained in the English statute, and section 2513 provides that no action shall be brought on any lease of lands or tenements for a longer time than one year. Sections 1 and 2 of the English statute provided that unwritten leases for three years or less were valid. Yet, at the same time, section 4 of that statute provided that no action should be brought upon any contract or sale of lands or' tenements or any interest in or concerning them unless the contract was in writing. In this condition of the statute, it came about that when a verbal lease was made for three years or less, as permitted by the first section, its validity was questioned under the fourth section, as being an interest in or concerning lands, which must be evidenced by writing. But the courts held that as it could not be supposed that one section was intended to permit the lease, and the other not to permit it, that, therefore, sections 1 and 2 should be construed unconnected with section 4. And this was, of course, the proper disposition of the question as the statutes then stood. But if section 2 of the English statute had not made the exception to section 1, and section 4, in addition to the provision as to interests in or concerning lands and tenements, had contained the provision now found in section 2513, as to leases for one year, it could scarcely be doubted that the courts would have construed them together, and held the latter as limiting the former. It is true section 4 of the English statute has been held to refer to future interests ; but we must be careful to observe the change of its phraseology at the period of each particular decision. The decisions were under the original statute, or under such changes as yet made it refer to future interests. Thus the case of Tillman v. Fuller, 13 Mich. 118, held the two sections covered different purposes and were not to be construed together. One section was that “no estate or interest in lands, other than *327leases for a term not exceeding one year” shall be created except by writing. The other section provided that “every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract” be in writing. The court said the first one referred to a lease and the other to a contract for a lease. One referred to a present matter, the other to a future interest. But our section 2513 does not refer to a contract for a lease, a future interest, but refers to the lease itself. It reads that “ no action shall be brought * * * upon * * * any lease thereof (lands and tenements) for a longer time than one year” unless evidenced by writing. It, therefore, appears to me as evident that the legislature has intended by this provision in section 2513 (inserted in Revised Statutes, 1879, as an amendment) to ingraft an exception onto section 2509. So from either of the two points, upon which this case may be said to turn, the judgment of the trial court must be affirmed.

The exception of land leases for one year or less, which we have shown to exist in section 2513, makes it unnecessary that the agent’s authority should have been in writing, or that there should have been a writing at all. And if we should concede there is no exception, as contended by defendant, yet the estate created by the lease itself was an estate at will, converted into an estate for years by entry and payment of rent referring to a year’s letting. This latter construction does not depend on an exception in the statute. The convertibility of estates at will into an estate for years is older than the statute, and when the courts so convert them, where there has been an entry and payment of rent, they are only obeying the statute; for, when the statute declared that a verbal lease should create an estate at will, it but indirectly said that it.should be an estate for years on entry and -payment of rent. Koplitz v. Gustavus, 48 Wis, 48. The motion is overruled.

The other judges concur.