Whiting v. Ohlert

• Decision Date: 23 January 1884
• Citation: 18 N.W. 219,52 Mich. 462
• Court: Michigan Supreme Court
• Parties: WHITING v. OHLERT.

18 N.W. 219

52 Mich. 462

WHITING v. OHLERT.

Supreme Court of Michigan

January 23, 1884

A lease may be made to take effect in the future, and the estate begins with the future period, and not with the contract.

An agreement by parol for a future term not exceeding one year is valid, and not within the statute of frauds.

Error to Wayne.

Stewart & Galloway, for plaintiff and appellant.

James H. Pound, for de-defendant.

CAMPBELL, J.

This was an action by a tenant against his landlord for the disturbance in his enjoyment. The main dispute was concerning the validity of the lease. The testimony tended to show an agreement by parol in April for a year's tenancy from the beginning of May. The court below held that an agreement by parol for a full term of a year, to begin in the future, was void under the statute of frauds. That statute provides that all contracts "for the leasing for more than one year" of lands shall be void unless in writing. Comp.Laws, � 3179. The only other provision supposed to be involved is that which declares that every agreement which by its terms is not to be performed within one year must be in writing. Id. � 3183.

The distinction between an agreement for a lease and the lease itself was pointed out in Tillman v. Fuller, 13 Mich. 113. It is very well settled that a lease may be made to take effect in future, and that the estate does not begin with the contract, but with the future period. Young v. Dake, 5 N.Y. 463; Trull v Granger, 8 N.Y. 115; Wood v. Hubbell, 10 N.Y 479. It is held in New York, under a statute corresponding to ours, that an agreement by parol for a future term not exceeding one year is valid, and not within the statute. Young v. Dake, supra. That case is well considered, and is we think, a fair construction of the statute, which ought not to be given a strained meaning. The same doctrine has been adhered to in that state, and is reaffirmed emphatically in Becar v. Flues, 64 N.Y. 518, where a tenant was held liable for the agreed rent, who had never gone into possession, and had declined to do so. Concurring, as we do, in this view of the law, we think the court below erred in its ruling, and should have allowed a recovery of damages for the injury done plaintiff.

We note further in the record that the right of possession seems to have been determined in plaintiff's favor in proceedings before a commissioner, and we cannot understand why on...