Robertson v. Hays

• Citation: 3 So. 674,83 Ala. 290
• Parties: ROBERTSON v. HAYS.
• Decision Date: 01 February 1888
• Court: Supreme Court of Alabama

3 So. 674

83 Ala. 290

ROBERTSON v. HAYS.

Supreme Court of Alabama

February 1, 1888

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Statutory real action in the nature of ejectment. This action was brought by John Hays against William Robertson and Mat Fulks for the recovery of a certain tract of land, and was commenced in the city court of Birmingham on the 15th day of January, 1887. On the trial of the cause, as shown by the bill of exceptions, the plaintiff introduced in evidence a patent from the United States government to him for the land in controversy, and bearing date, May, 1885. The defendant introduced in evidence a lease in writing of the said lands from said John Hays and his wife to W. S. Robertson, M. L Fulks, the defendants, and one T. H. Robertson; said lease bearing date of 9th day of August, 1886, and for a term of 40 years. This being all the evidence, the court, at the request of the plaintiff, gave the following charge, which was in writing: "If the jury believe the evidence, they must find the issue in favor of the plaintiff." To the giving of this charge the defendants excepted, and asked the following charge in writing, which the court refused, and to which refusal they excepted: "If the jury believe the evidence, they must find the issues in favor of the defendants." After the trial of the case, it was, by agreement of the counsel on both sides, agreed that the only question to be submitted in this court for decision would be whether the said lease for the period of 40 years was void in toto, and if not, to what extent it was void, if void at all.

A O. Lane and E. T. Taliaferro, for appellant.

Hewitt, Walker & Porter, for appellee.

CLOPTON J.

In defense of a statutory real action brought by appellee, the appellant set up a lease of the land in controversy for the term of 40 years, executed by the appellee, August 9, 1886. By agreement of counsel, the only question submitted for decision is whether the lease at law is invalid in toto, or only as to the excess of the term prescribed by the statute. The lessees were let into possession contemporaneously with the making of the lease.

Section 2190, Code 1876, declares: "No leasehold estate can be created for a longer term than twenty years." This section was first introduced into the legislation of the state by having been incorporated in the Code of 1852, and its terms seemed to have been selected and employed by the codifiers ex industria. It enters into and constitutes a part of a system of legislative regulations relating to the power to create estates in land, the effect of conveyances creating them, and the nature, character, and extent of the estate created. The legislative system is declarative of the policy of the state, and is founded on the power of the legislature to prescribe the modes by which an interest in lands may be aliened, and the degree and duration of estates thus created. A contract made for the purpose of doing or having done something prohibited by statute is unlawful and void, though not in terms so declared, and though no penalty is imposed for doing the prohibited act. McGehee v. Lindsay, 6 Ala. 16; Woods v. Armstrong, 54 Ala. 150. Section 2190 is prohibitory in terms, and a leasehold estate created in contravention of its provisions is void. The discussion of this point, however, is unnecessary. Both parties concede that the lease is void. The contention is, to what extent? Generally, when a contract, clearly entire and indivisible, is founded on two considerations,-one legal, and other illegal, because in conflict with the law or adverse to public policy,-the whole contract is void; otherwise, if separable. As to the extent of the invalidity of agreements for the lease of lands for a longer term than a specified short period, declared void by the statute of frauds, unless in writing and signed by the party sought to be charged therewith, the authorities...