121 P. 799 | Or. | 1912
Opinion by
There are but two assignments of error: (1) That the court erred in denying defendants’ motion for nonsuit based upon the insufficiency of evidence to support a judgment; (2) that the court erred in rendering judgment against defendants for more than $500 admitted to be due. Both of these assignments depend upon whether -the evidence was sufficient to be submitted to the jury. The defect in the evidence urged is that it failed to show that defendant was liable for the rent at the rate specified in the lease for the reason that there was no written assignment of it and that there was an agreement between-plaintiff and defendant, reducing the rent to $200 per month.
The effect of the dealings between Raymond and Pewtherer is that the former took possession of the property under the lease by authority of the lessee and the consent of the lessor and paid the stipulated rent for a portion of the time he occupied. This cannot amount to or be shown to establish a formal assignment, for the purpose of binding defendant by the covenants of the lease; but it is an oral assignment, and when he enters and is recognized thereunder by the lessor he becomes liable for the rental specified therein.
In Webster v. Nichols, 104 Ill. 160, where ground was leased for a term of seven years upon which to erect dwellings, the lessee erected the dwellings, sold them, and gave possession under the lease. The assignment of the lease was by parol if, in fact, anything was said about it; but the assignee entered and paid the rent for some time under the lease, and it was held that he was an assignee of the lease and bound for the stipulated rent for the time
In Marr v. Ray, 151 Ill. 340 (37 N. E. 1029: 26 L. R. A. 799), it is held that if there has been an entry and occupation under an agreement, which is invalid under the statute of frauds, the agreement regulates the terms of the rent during the time occupied. See, also, to the same effect Reeder v. Sayre, 70 N. Y. 180 (26 Am. Rep. 567) ; Union Bkg. Co. v. Gittings, 45 Md. 181; Evans v. Winona Lbr. Co., 30 Minn. 515 (16 N. W. 404).
In the case of Rothschild v. Hudson, 8 Ohio Dec. 259 (reprint) the lessee assigned to Warner. Rothschild was sued for the rent for the time he. occupied. The jury was instructed that if they found that Rothschild was the beneficial party to whom the lease was assigned, instead of the party named in the assignment, they might find against him, if they found he was in possession during the time the rent accrued. It was held that the instruction was proper for the reason that he was the equitable owner and actually occupied.
There are many cases holding that, where a lease or its assignment is void under the statute of frauds, yet the lessee or assignee is liable for the rent stipulated in the lease for the time that he occupied. In Edwards & McKibben v. Clemons & Crozier, 24 Wend. 480, 483, it is said:
*173 '■“The lease was in itself void, as being a parol one for four years. But the plaintiffs actually entered and enjoyed for one year. The entry and enjoyment would alone have made them liable for use and occupation, and the parol agreement would have shown the amount to be recovered. * * It follows that the parol agreement, though void as a lease, may yet be resorted to as evidence to make the rent for the year certain, and thus confer a right of distress on the landlord.”
To the same effect are 2 Taylor, Landlord & Tenant, §§ 427, 428; Roberts v. Tennell, 19 Ky. 247; Crawford v. Jones, 54 Ala. 459; Smith v. Pritchett, 98 Ala. 649 (13 South. 569) ; Nash v. Berkmeir, 83 Ind. 537; Inhabitants of Eastham v. Anderson, 119 Mass. 526; Toan v. Pline, 60 Mich. 385 (27 N. W. 557) ; Arbenz v. Exley, Watkins & Co., 52 W. Va. 476 (44 S. E. 149: 61 L. R. A. 957) ; Astor v. Lent, 6 Bosw. N. Y. 612.
It is stated in Tiffany, Landlord & Tenant, p. 254, that:
“If the lessee enters under a lease within the statute, he becomes liable for the value of his use and occupation, * * and the recovery in such action will, it is said, be measured by the amount of rent agreed on, if there was any agreement in this regard. * * It seems that the fact that the lessee, after entering, pays the rent at the rate named, and that such payment is accepted, is evidence of an actual demise at such rent, and that the rent may be recovered in an action of debt or special assumpsit as well as in an action for use and occupation.”
In McAdam, Landlord & Tenant, 433, it is said “that one who enters upon the use of another’s property, with full knowledge of the rent demanded therefor, is under contract obligation to pay such rent.” See, also, page 852; Dey v. Greenbaum, 82 Hun, 533 (31 N. Y. Supp. 610; [affirmed in 152 N. Y. 641] : 46 N. E. 1146).
Judgment is affirmed. Affirmed.