Nally v. Reading

107 Mo. 350 | Mo. | 1891

Sherwood, P. J.

This cause has been transferred' to this court from the St. Louis court of appeals under the constitutional provision.

The only point presented, the turning point in the • case, for consideration is whether such a contract as the • pleadings and evidence present is capable of being sold, transferred or assigned by parol; that is, whether one of' five parties, lessees of a large tract of land for the term of ten years, can make a valid verbal contract with an outsider, whereby the interest of such party in the lease-can be transferred to such outsider for four years, the residue of the term, the latter agreeing to stand in the-stead of one the party to the lease, and to pay the same-amount he would have had to do to his lessor, to-wit, $100 per year.

Under such a contract, and as contemplated therein, the defendant received and took possession from the party from whom he purchased of a portion of the land, pastured his cattle there for one season and paid to the original lessor the agreed sum for the year of his occupancy ; but, having done so, abandoned that occupancy and refused longer to occupy the pi’emises or to pay- the residue of the sum agreed upon. On being ¡sued for the residue of such money by the plaintiff, who had to pay such residue of the rent money himself, the defendant, after pleading several matters of defense, interposed, as a further defense, that the contract was not in writing and pleaded the provisions of chapter 35, Revised Statutes, 1879, in support of this plea. ,

Section 2 of the chapter referred to, it being section 2510, Revised Statutes, 1879, provides: “No leases, estates, interests, either of freehold or term of years, or -any uncertain interest of, in, to or out of any messuages, lands, tenements or hereditaments shall at any time hereafter be assigned, granted or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, granting or surrendering the same, or their agents lawfully authorized by writing, or by operation of law.”

Section 5 of the same chapter, it being section 2513, declares: “No action shall be brought to charge * * * any person upon * * * any contract for the ■sale of lands * * * or any lease thereof for a longer time than one year, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action ¡shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be ■charged therewith, or some other person by him thereto ¿awfully authorized.”

It seems at first blush that the contract in suit ■plainly infracts both of the sections above quoted, in that it attempts by parol to assign a lease fora term of years under section 2510 and to make a sale of a lease by parol under section 2513. And said contract also infracts the latter section inasmuch as the contract is not to be performed, and cannot be performed, according to its terms, within one year from the time of its making. These views are readily seen to be supported by an examination of the following authorities: Browne, Stat. Frauds, secs. 230, 231, 272, 281, 290; Taylor, Land. & Ten., sec. 427; Durand v. Curtis, 57 N. Y. 7; Pierce v. Estate, 28 Vt. 34. And the fact that defendant took possession under the verbal contract, and made one payment, cuts no figure in this case.

Whatever may be the rule in equity as to the doctrine of part performance, that rule has no place in an action at law, as in the present instance. 3 Pars. on Cont. [7 Ed.] 60; Sharp v. Rhiel, 55 Mo. 97. It is unnecessary to review the authorities in this state ; that has been well done by Rombatjeb, P. J., in 36 Mo. App. 306. If there are any authorities in conflict with the views here announced, we overrule them. We hold, as-did the court of appeals, that the demurrer to the evidence of plaintiff should have been granted. We, therefore, affirm the judgment of the court of appeals and remand this cause to that court for further proceedings.

All concur.