Moche v. Leno

• Decision Date: 26 February 1947
• Docket Number: 91
• Citation: 41 S.E.2d 369,227 N.C. 159
• Parties: MOCHE v. LENO et al.
• Court: North Carolina Supreme Court

41 S.E.2d 369

227 N.C. 159

MOCHE v. LENO et al.

No. 91

Supreme Court of North Carolina

February 26, 1947

Action of summary proceeding in ejectment begun in court of justice of the peace, and heard in Superior Court on appeal thereto by plaintiff from judgment for defendants.

For purposes of this appeal, these are the essential facts: Upon trial de novo in Superior Court, the parties stipulated that plaintiff is the owner of premises, referred to as Red Apple Cafe, of which defendants are in possession, claiming possession under a paper writing, dated 10 September, 1940 not under seal, but signed by Birdie S. Buford and Joe Leno purporting to be a lease for a period of five years commencing 1 October, 1940, with privilege in lessee for renewing for an additional period of five years next thereafter. Plaintiff then offered the paper writing in evidence for purposes of attack for that, and of showing that it is not under seal. When plaintiff rested his case defendants offered the paper writing without limiting the purpose--it having been registered prior to date plaintiff acquired tile. Other evidence pertaining to other features of the case was offered by the parties respectively.

At the close of all the evidence the case was submitted to the jury on this issue: 'Is the plaintiff entitled to the immediate possession of the premises described in the affidavit of the plaintiff in the above captioned proceedings? ' Under peremptory instruction from the court, the jury answered the issue 'No.'

From judgment on the verdict, plaintiff appeals to Supreme Court, and assigns error.

Connor, Gardner & Connor, of Wilson, and J. A. Jones, of Kinston, for plaintiff appellant.

Lucas and Rand, of Wilson, for defendants appellees.

WINBORNE Justice.

Does the validity of a lease of real estate for a term of more than three years, required by statute, G.S. s 22-2, to be in writing, depend upon whether it is or is not under seal? Basically, the correctness of the peremptory instruction given by the court below which plaintiff assigns as error rests upon the answer to this question. That instruction indicates a holding that a seal is not an essential part of such lease. While this particular question has not been considered heretofore by this Court, consideration of pertinent principles of law leads the Court to agree with such holding.

At common law a lease of land for a term of years, however long, was not required to be in writing. This, however, was changed by the Statute of Frauds. Tiffany on Real Property, 3rd Ed., Vol. 1, p. 119. 35 C.J. 971, L & T 48(2). Nevertheless, at common law a seal was not essential to the validity of such lease. 3 Thompson on Real Estate, Permanent Ed. 170.

In this State this Court in Moring v. Ward, 50 N.C. 272, defines a lease for years as 'a contract by which one agrees, for a valuable consideration, called rent, to let another have the occupancy and profits of the land for a definite time. ' Also, that there is a distinction between a lease and sale of real estate is pointed out in Waddell v. United Cigar Stores, 195 N.C. 434, 142 S.E. 585, 588, where Adams, J., uses this language: 'In the case before us it is not proposed to convey the legal title * * * but to execute a lease which, except as modified by statute, is treated as a chattel real, falling within the classification of personal property. It is obvious that between a sale and a lease of real property there is a distinction which often calls for the application of diverse principles.'

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