37 S.E.2d 107 | N.C. | 1946
This was a summary ejectment proceeding for the possession of a store building in Black Mountain.
Plaintiff's evidence tended to show that defendant's occupancy was under a rental from month to month since January, 1944; that in July, 1945, pursuant to defendant's request for a written lease, plaintiff drew up a tentative form of lease, but this was not signed by plaintiff, nor *114 agreed to; that due notice to vacate was thereafter given defendant, but he continued to hold over. Defendant offered to testify that the plaintiff had orally agreed in April, 1945, to lease him the building for a year with privilege of renewal from year to year for four successive years. The statute of frauds was pleaded. The court sustained objection to this testimony, and defendant excepted.
There was verdict for plaintiff, and from judgment in accord therewith, defendant appealed. The question for decision, presented by this appeal, is the correctness of the ruling of the trial court that a verbal agreement to lease real property for one year with privilege of renewal thereafter for four successive years was within the statute of frauds, and that parol evidence to establish it was incompetent.
The North Carolina statute of frauds, G.S.,
The exact question here presented does not seem to have been heretofore decided by this Court, but we think upon a proper interpretation of the language and manifest intent of the statute, fortified by the weight of judicial opinion in other jurisdictions, the ruling below should be upheld.
Oral leases of land exceeding in duration three years from the making are rendered unenforceable by virtue of the statute. Here the defense sought to be interposed was based upon an alleged agreement to lease which contemplated a maximum duration of five years. True, its extension beyond one year would depend upon action by the defendant lessee, but so far as the lessor is concerned, if he made such an agreement he would have been in the position of having contracted away the possession of the premises for five years. On the part of the landlord the contract is absolute. He cannot recall it for a less period than five years. He is bound for the maximum duration notwithstanding the lessee may not presently avail himself of the privilege. Under the law the purchaser of *115
real property takes with notice that the premises may be under parol lease for a term not exceeding three years. Beyond that period he is protected by the provision that the lease must have been in writing. If a lessor can make a valid lease by parol for a longer period by means of provisions for renewal the statute would afford the purchaser no protection. InvestmentCo. v. Zindel, supra. The lease, together with the provision for annual renewals of the lease, is but a single contract. The agreement for renewal is a part of and inseparable from the lease for the original term, and the holding for the extended term would be under the original oral lease. 37 C. J. S., 605; Hand v. Osgood,
This seems to be in accord with the weight of judicial opinion in other jurisdictions. "An oral lease for the full period allowed by statute with privilege of renewal for a longer time is invalid." 27 C.J., 213. "It has been held that an oral agreement to lease land for one year with privilege of extension to 3 years is within the statute prohibiting leases for more than one year, since it is apparent the agreement is for a lease for three years." 49 Am. Jur., 522. In 37 Corpus Juris Secundum, 603, the general rule is stated as follows: "A lease is within the statute of frauds where it accords a privilege or option, or makes provision, for a renewal or extension and the period for which the renewal or extension is authorized by the lease, or that period added to the original term, exceeds the period for which, under the statute, a parol lease may be made."
In Hull v. Brown,
In Glavin v. Simons,
In McGlaris v. Claude Neon Federal Co.,
In Skinner v. Davis, 104 Kansas, 467, the headnote recites: "An oral lease for one year with privilege of five years, is void under the statute of frauds." The defendant in that case obtained an oral lease for one year, with privilege of five. The trial court refused to submit this defense to the jury, and the Supreme Court affirmed, citing Willey v. Goulding,
In Hand v. Osgood,
In Wilson v. Adath Israel Char. Ed. Asso'n.,
In Anderson v. Frye Bruhn,
In Thomas v. Nelson,
In McDowell v. Baking Co.,
From Donovan v. Brewing Co.,
The defendant has cited two cases as tending to support his position,Ward v. Hasbrouck,
In the Wisconsin case the oral contract was for a lease for one year, with privilege of extension for two years. The Court said that so much of the agreement as purported to give lessee right of possession for one year was conceded by plaintiff, and was treated by the court below as effectual, but that so much of the agreement as purported to grant right of possession thereafter was void. It will be noted, however, that it was only after lessee had retained possession for one year that lessor brought suit and ejected him. The period to which the Court referred was already past. The lease for that period had expired.
After consideration of the provisions of the pertinent statute, in the light of the decisions of this Court and those of other jurisdictions, we *119 conclude that the alleged oral executory agreement for the lease of land in this case, under which the defendant would have had the right to retain possession of the premises for more than three years, was within the statute of frauds and unenforceable, and that parol evidence in support thereof was properly excluded.
The exception to the refusal of the court to admit in evidence, for the purpose of corroboration, an unsigned form of a written lease cannot be sustained.
In the trial we find
No error.