6 Utah 342 | Utah | 1890
This action was instituted before a justice of the peace. The complaint alleges that the defendant was guilty of the unlawful detention of the premises described in it. The case is here by appeal from a judgment of the district court against the plaintiff, rendered upon the trial of the appeal from the justice. The rights of the parties to the possession of the property, so far as involved by this case, depends upon the legal effect of the following letter: “Salt Lake City, Utah, May 2d, 1887. Mr. Robert Gar-butt, Jennings Building, Ogden — Dear Sir: I have placed check to your credit for rent to May 1st, 1887, and gave our lawyer memorandum to draw up your lease long ago, which he has not done yet; so I write the following for
This letter contains the names of the parties, identifies the premises, specifies the amount of the rent, and fixes the term, and would have been a valid lease for the time mentioned, if Thomas W. Jennings had been duly authorized in writing to execute it. It was signed by Thomas W. Jennings, as agent of the Jennings estate, of which the premises in dispute was a part, and it appears from the evidence that he was one of six duly qualified executors of that estate. The statute provides that “ no estate or interest in real property, other than . leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering the same, or by his lawful agent thereunto authorized by writing.” 2 Comp. Laws Utah, 1888, Sec. 3916. And subdivision 5, Sec. 3918, Id., is as follows: “An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein,” to be valid, must be in writing; “ and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged.” When the lease is for a longer term than one year, and it is to be made by an agent, the statute requires the lease, and the agent’s authority to make it, to be in writing. While the letter purports to be signed by Jennings as agent of the estate, he was also one of six executors; and, when there are two or more executors, the following statute governs their action: “Sec. 4030. When all the executors named are not appointed by the court, those appointed have the same authority to perform all acts and discharge the trust re
Notwithstanding the statute of frauds rendered the letter invalid as a lease, the defendant was permitted to remain in possession of the premises until the twenty-fifth day of May, 1889, when N. C. Flygare, the grantee of the Jennings estate, and the grantor of the plaintiff, gave him notice to quit on the first day of the following July. It also appears from the evidence that «rent was received on the first day of each month, until the last-named day. And the question now arises, what effect did this acceptance of rent have upon the rights oí the parties? The defendant was simply a tenant at will until the acceptance of rent by the lessor, and that converted the holding into a tenancy from month to month, and one.. month’s notice to quit prior to July the 1st was sufficient to terminate the tenancy at any time. In the case of Anderson v. Prindle, 28 Wend., 616, the court said: “It appears by the affidavit that Prindle went into possession under an agreement for a written lease for the term of one year and eight months from the first of September,1885, and that a few days after he entered into possession he violated the agreement by refusing to accept the lease, and execute the counterpart thereof. By that act he became a mere tenant at will or by sufferance, and liable to be ejected immediately. Hegan v. Johnson, 2 Taunt., 149. And he would have continued so, if Anderson had not changed the character of that tortious holding by receiving rent from him subsequent to that time, from month to month, at the rate