Smelling v. Valley

• Court: Michigan Supreme Court
• Writing for the Court: MONTGOMERY, J.
• Citation: Smelling v. Valley, 103 Mich. 580, 61 N.W. 878 (Mich. 1895)
• Decision Date: 22 January 1895
• Parties: SMELLING v. VALLEY.

61 N.W. 878

103 Mich. 580

SMELLING v. VALLEY.

Supreme Court of Michigan

January 22, 1895

Error to circuit court, Muskegon county; Albert Dickerman, Judge.

Summary proceeding by Charles Smelling to remove Eli Valley from the possession of land. Judgment was rendered in favor of plaintiff, and defendant brings error. Affirmed.

McGrath C.J., and Hooker, J., dissenting.

Boyd &amp Sullivan, for appellant.

Turner Turner & Turner, for appellee.

MONTGOMERY J.

This was a summary proceeding to recover possession of land for nonpayment of rent. Complainant had demanded the payment, as the jury must have found under the instructions of the court, and, on the defendant's refusal to make payment, had served the seven-days notice to quit provided by section 8295, How. St. The defendant having failed to vacate within the seven days, this proceeding is instituted. The evidence which the jury followed, showed that complainant bought the land with defendant in possession; that defendant stated to complainant that he had no contract for further occupancy of the land from complainant's predecessor in title; that thereupon it was agreed by parol that defendant should clear up and fit for cultivation seven acres of land, during the spring of 1893, in time for spring crops, and that, in consideration of this, he should be privileged to occupy the land for two years. Defendant failed to make the clearing agreed upon, and this failure was followed by the demand and notice above referred to. If the parties were bound by the terms of the agreement, there could be no doubt that the jury was justified in finding for complainant. Judd v. Fairs, 53 Mich. 518, 19 N.W. 266. But it is insisted that the contract was within the statute of frauds; that complainant could not be bound beyond one year; and that, if this was so, defendant could not be held to be bound to pay the consideration for two years' occupancy, and that, therefore, he must be held a tenant at will. It is undoubtedly a general rule that an agreement void under the statute of frauds is void in all its parts, and cannot be considered for the purpose of assessing damages, and is not good as fixing the consideration. Sutton v. Rowley, 44 Mich. 112, 6 N.W. 216; Raub v. Smith, 61 Mich. 543, 28 N.W. 676; Wardell v. Williams, 62 Mich. 51, 28 N.W. 796. But, in this case, defendant had entered upon the performance of his contract, and was occupying the land under it, and had made a portion of the clearing agreed upon. Under such circumstances, he could have enforced the parol agreement by a resort to equity. See Wood, Landl. & Ten. 201, 202, and cases cited. See, also, Davis v. Strobridge, 44 Mich. 157, 6 N.W. 205. It would be against the direct agreement of the parties to substitute a tenancy from year to year or a tenancy at will for the one agreed upon between the parties. We think it does not lie with the defendant to say that he is not bound to pay the consideration which was agreed upon as a condition to his continued occupancy, even though that payment included compensation for a term which he might be compelled to resort to a court of equity to obtain, as long as the complainant stood ready to perform the contract upon his part. The judgment will be affirmed, with costs.

LONG and GRANT, JJ., concur.

HOOKER J. (dissenting).

It is conceded that the defendant is in possession of premises under a parol lease for two years. The parties agree that the consideration for this lease was the defendant's promise to clear two parcels of land. They disagree as to the time it was to be done; the complainant asserting that the land was to be cleared during the spring following the making of the lease, and the defendant claiming that it was to be done during the term of two years. The work not being done in accordance with complainant's claim, he began summary proceedings after a notice to surrender the premises within seven days after service. The jury evidently believed the complainant. If it be conceded that this was a good notice under subdivision 3 of section 8295 of Howell's Statutes (and it seems not to be questioned), it leaves this case to turn upon the character of the defendant's occupancy. If the defendant was a tenant at will, he was entitled to three months' notice; if he can be said to have been a tenant for years, a notice to quit or pay rent within seven days was all that the law required. It is contended that this contract was within the statute of frauds, and therefore void for all purposes, under the rule laid down in the cases of Sutton v. Rowley, 44 Mich. 112, 6 N.W. 216; Raub v. Smith, 61 Mich. 543, 28 N.W. 676; Wardell v. Williams, 62 Mich. 51, 28 N.W. 796; Chamberlain v. Dow, 10 Mich. 319; Hall v. Soule, 11 Mich. 494; Holland v. Hoyt, 14 Mich. 238; Grimes v. Van Vechten, 20 Mich. 410; Hillebrands v. Nibbelink, 40 Mich. 648; Niles Water Works v. City of Niles, 59 Mich. 311, 26 N.W. 525. An examination of these cases will disclose that most of them involved contracts in relation to personal property and labor. This rule does not apply to cases where lands have been leased for a period of more than a year at an annual rent, and possession has been taken, and rent paid. In such case the lessee is considered as tenant from year to year. Doe v. Bell, 5 Term R. 471; People v. Rickert, 8 Cow. 226; Clayton v. Blakey, 8 Term R. 3; Reeder v. Sayre, 70 N.Y. 180; Laughran v. Smith, 75 N.Y. 205; Wood, Landl. & Ten. 127, and note; Morrill v. Mackman, 24 Mich. 284; Schneider v. Lord, 62 Mich. 141, 28 N.W. 773; Huntington v. Parkhurst, 87 Mich. 44, 49 N.W. 597. In this case it was stated that the rent was not payable annually, but was all payable at once, according to the complainant's theory. The rule is that the agreement regulates the tenancy "in every other respect" than duration. People v. Rickert, 8 Cow. 231; 1 Cruise, Dig. 284. Schuyler v. Leggett, 2 Cow. 663. The case of People v. Rickert was similar to...