McCroy v. Toney

• Decision Date: 04 February 1889
• Citation: 5 So. 392,66 Miss. 233
• Court: Mississippi Supreme Court
• Parties: CHARLES W. McCROY v. H. A. TONEY

5 So. 392

66 Miss. 233

CHARLES W. McCROY v. H. A. TONEY

Supreme Court of Mississippi

February 4, 1889

FROM the circuit court of Coahoma county, HON. J. H. WYNN, Judge.

On December 15, 1887, appellant, McCroy, by a verbal agreement rented certain land from appellee, Toney, the term of the lease to begin January 1, 1888, and to continue one year. Pursuant to the contract, McCroy went into possession of the land January 2, but on January 8, was forcibly dispossessed of the premises by appellee, who leased it to others. Thereupon appellant brought this action of trespass on the case against appellee, and claimed damages on account of the unlawful eviction. To the declaration alleging the foregoing facts, the defendant demurred upon the ground that no action could be brought upon the lease because prohibited by the statute of frauds. McCroy, the plaintiff, appeals from a judgment sustaining the demurrer and dismissing the cause.

Reversed and cause remanded.

Calhoon & Green, for appellant.

The lease is valid under the statute of frauds. The three first sections of the statute, 2 Car., referred to estates in lands. It was provided that all leases, etc., not in writing shall be void, except those for the term of three years from the making thereof. The fourth section of 2 Car. refers to contracts and has no reference to estates; the other sections refer to wills, voluntary conveyances, etc. 1 Chitty on Contracts 5.

In the enactment of this statute in Mississippi, §§ 1, 2 and 3 were placed, not in the chapter on "Frauds and Perjuries," chap. 47, Hutch. Code, but in chap. 42, on "Estates in Realty." There was a collocation suited to the subject-matter of the sections. By § 1, chap. 42 Hutch. Code, it is provided: "No estate of inheritance or freehold or for a term of more than one year in lands or tenements shall be conveyed," etc., unless by writing. Note the change in the language. The words "from the making thereof" are omitted in the Mississippi statute.

There is no limitation on the time when the term is to begin but only as to its duration. So, under the statute in this state, a lease for a term not exceeding one year can be made verbally to commence in futuro.

To place this beyond controversy the code of 1857 re-enacted chap. 24, Hutch. Code, and expressly authorized the creation of estates to commence in futuro, which, while primarily intended to abolish livery of seizin, is broad enough to embrace the doctrine contended for here. The same collocation of the sections 1, 2, and 3 of 2 Car., under the title of Real Estate, is preserved in codes 1857, 1871 and 1880. The language of § 122, code 1880, being express as to leases and expressly prescribing what leases are prohibited thereby, it cannot be said that other kinds of leases than those described are intended to be included under the disjunctive clause, "or upon any agreement which is not to be performed within the space of one year from the making thereof." The contrary would follow, viz.: that the statute had dealt fully with all the phases of leases that it intended to cover, and that the term "agreements" meant another and different class of contracts. It follows that under §§ 1187, 1188, and 122 verbal leases for a term of one year to begin in futuro are valid.

In Chaffe v. Benoit, 60 Miss. 34, the fact that the lease was to begin in the future did not affect the mind of the court.

It is broadly stated in Reed on Statute of Frauds, vol. 2, § 813, that if the statute does not contain the words "from the making thereof," and the term does not exceed one year, it is valid, though to begin in the future. This doctrine is sustained by the authorities. The court is warned not be led by the cases from Alabama, Illinois, and other states, where the law does not permit an estate to commence in futuro to be created; nor by cases from states which have the English statute of frauds, or which have no stipulation in the fourth section in regard to "leases," and in which "any agreement not to be performed within one year from the making thereof" is held to embrace leases.

Cutrer & Cutrer, for appellee.

The language of the statute of frauds is plain and comprehensive: "No action shall be brought upon any contract for the sale of lands, etc., or the making of any lease thereof for a longer term than one year, or upon any agreement which is not to be performed within the space of one year from the making thereof, unless the promise shall be in writing, etc." Code 1880, § 122. The same provision is found in Hutch. Code 637; in code 1857, 358, and code 1871, § 282. The arrangement and purpose of the original English statute have been changed and its operation enlarged by ours. The clause permitting a lease of one year is placed in the context immediately preceding the general comprehensive words, "or upon any contract which is not to be performed within the space of one year from the making thereof."

The statute as written is plain. No exception can be grafted on it. Gumbel v. Koon, 5 Miss. 266.

The purpose of the statute is to require every contract not to be performed within one year from the making thereof to be in writing, so as to avoid trusting any matter of contract for a longer period than that to the memory of any witness. And this applies to leases.

The authorities hold that such is the force and effect of all similar statutes to ours. Washburn on Real Prop., vol. 1, p. 645, 647; Taylor Land. and Ten., § 30; Browne Stat. Fr., § 272 et seq.; Olt v. Sohnas, 1 Ill. 576.

Parol leases for one year to begin in futuro are held to be void in this last case, and this rule is announced in Comstock v. Ward, 22 Ill. 248; Warner v. Hale, 65 Ib. 35; Butcher v. Atkinson, 68 Ib. 421; Wheeler v. Frankenthal, 78 Ib. 124; Smith v. Kinkaid, 1 Brad. 623; Wolf v. Dozer, 22 Kan. 436; Parker v. Hollis, 50 Ala. 413. See, also, Whiting v. Pittsburg Opera House Co., 88 Pa. 100; Atwood v. Norton, 31 Ga. 507; Kelly v. Terrell, 26 Ga. 551; Pulse v. Hamer, 8 Oregon 251; Morehead v. Watkyns, 5 B. Mon. 22; Delano v. Montague, 4 Cush. (Mass.) 42; 1 Addison on Contracts 171.

Counsel reviewed the authorities referred to by Reed on Stat. Fr., vol. 2, §§ 813, 814, 815, and contended that the author's statement of a contrary rule was not sustained by his citations; that the decisions holding verbal leases for one year to begin in futuro valid were in states where there was no statute controlling, or else the decisions were based upon the peculiar language or collocation of the sections and provisions of their statutes and were not upon statutes with provisions similar to the Mississippi statute.

OPINION

CAMPBELL, J.

The single question presented for decision by this record is, Was the lease of the land by words, without writing, on the 15th day of December, 1887, for the year 1888, invalid? After careful...