Culver v. Van Valkenburgh

• Court: Oregon Supreme Court
• Writing for the Court: [60 Or. 449] EAKIN, C.J. (after stating the facts as above).
• Citation: Culver v. Van Valkenburgh, 60 Or. 447, 119 P. 753 (Or. 1912)
• Decision Date: 09 January 1912
• Parties: CULVER v. VAN VALKENBURGH et al.

119 P. 753

60 Or. 447

CULVER v. VAN VALKENBURGH et al.

Supreme Court of Oregon

January 9, 1912

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by S.J. Culver against M. Van Valkenburgh and another. From a judgment for defendants, plaintiff appeals. Affirmed.

On September 1, 1907, plaintiff executed to S.J. Huff a lease to certain lands for the term of five years, which contained mutual covenants, and Huff entered upon the premises thereunder. On April 1, 1908, he orally assigned and transferred his interest in the premises under the lease to defendant M. Van Valkenburgh, who entered thereon and occupied the same until June 5, 1909, when she transferred them to one Lane, whereupon plaintiff commenced this action against her to recover damages in the sum of $500 for breach of the terms of the lease. It is also alleged that the assignment of the lease was in writing, although the evidence is undisputed that it was oral. The execution of the lease and its assignment to defendants are denied by the answer but defendant M. Van Valkenburgh admits that she entered into the possession of the premises under an agreement with Huff and that she occupied the same thereunder from April, 1908 to June, 1909, and sets forth other defenses to the damages alleged. The case was tried before a jury, and at the close of plaintiff's evidence a judgment of nonsuit was granted on the motion of defendants, and plaintiff appeals.

A.M Crawford (G.T. Treadgold, on the brief), for appellant.

A.J. Sherwood (L.A. Liljeqvist, on the brief), for respondents.

EAKIN, C.J. (after stating the facts as above).

But two of the assignments of error need be considered:

(1) As to the effect of the oral transfer by Huff to defendant M Van Valkenburgh of his leasehold interest in the premises. Tiffany on Landlord and Tenant (page 950) states that, for the purpose of enforcing the payment of rent, a person, other than the lessee, found in possession of the premises will be prima facie presumed to be in possession as assignee of the leasehold, which presumption may be rebutted by evidence that there was no actual assignment, or that he is a sublessee, in which latter case he is not liable to the landlord on the covenants of the original lease. His liability is upon the covenants of the sublease and to his lessor only. But, in order that one may be liable on the covenants as an assignee of the leasehold, there must be a legal assignment to him. It is not sufficient that he be in possession. Under the statute of this state (section 808, L. O.L.), no estate or interest in real property can be created or transferred, except it be in writing, signed, etc., which includes an assignment of a leasehold interest in lands for a term of more than one year.

The contention of plaintiff that the assignment being oral will be construed to be a tenancy from year to year can have no application to the liability of the defendant for damages for breach of the covenants of a written lease; nor does part performance take the case out of the statute of frauds, such relief being cognizable in equity for the purpose of obtaining specific performance, and has no application in an action for damages for breach of covenant in a contract to which defendant is not a party. Some authorities hold that a parol agreement in relation to real...