This is an action of ejectment by the appellee to recover from the appellants the possession of a house and *Page 341 lot in Indianola, Mississippi. In support of his claim to possession of the property, the appellee introduced in evidence a deed to him thereto from Catherine Conguista, executed on September 9, 1936, who had purchased it from Antonio Conguista, in July, 1936, both of whom are citizens and residents of Italy. The appellants then introduced in evidence a two-year lease to the property to the appellant, Hytken, with an option for the renewal thereof for a period of not exceeding three years, at a monthly rental of $15, executed on May 14, 1936, for and in the name of Antonio Conguista, the then owner of the property, by Paul Conguista, as his attorney in fact; that Hytken immediately entered into possession of the property and paid the rent thereon when due to Antonio Conguista's agent until it was purchased by the appellee, and thereafter to him. They then introduced a record of the chancery clerk's office setting forth Paul Conguista's power of attorney from Antonio Conguista, but, as it was not acknowledged, it was not properly of record, and, on objection by the appellee, was excluded from the evidence. The appellants then introduced parol evidence that the original of his power of attorney had been lost, but was identical with the record copy thereof, and that the signature thereto was that of Antonio Conguista, but was identical with the record copy thereof, and that the signature thereto was that of Antonio Conguista, that it had been prepared by an attorney at law in Indianola, mailed to Antonio, and thereafter received by the attorney in due course of mail, and delivered by him to Paul.
On objection by the appellee this lease and its accompanying power of attorney were excluded by the court. In support of this ruling the appellee says: (1) The lease was void as such for the reason that Paul Conguista's letters of attorney were not "acknowledged or proved and recorded" as required by Section 2949, Code of 1930; (2) the lease if void as such cannot be held to be a contract to make a lease for the same reason, and; (3) *Page 342 if the lease should be held to be a contract to make a lease the appellants' rights thereunder are equitable only, and that equitable defenses are not admissible in an action of ejectment.
The first of these questions may and will be pretermitted and no opinion expressed thereon for the reason that we are of the opinion that under the cases hereinafter cited the lease, if void as such, constitutes in equity a contract to make a lease, and is admissible in evidence in support of the appellants' claim to continue in possession of the property.
Section 2949, Code of 1930, according to Lobdell et al. v. Mason, 71 Miss. 937, 15 So. 44; Hopper et ux. v. McAllum,87 Miss. 441, 40 So. 2; and Hutchinson v. Platt et ux., 119 Miss. 606, 81 So. 281, has no application to contracts by an attorney in fact for the making of a lease, but that such contracts are governed by Section 3343, Code of 1930. That section provides:
"An action shall not be brought whereby to charge a defendant or other party:
. . . . . . . "(c) Upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year;
. . . . . . . "Unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing."
The words "in writing" at the end of the section first appeared therein by Chapter 152, Laws of 1926. In Lobdell et al. v. Mason, supra, decided before this amendment to the statute was made, this Court held that a lease for more than a year made for his principal by an attorney in fact under verbal authority so to do was void as a lease but valid in equity as a contract to make a lease. *Page 343 The only change in this decision wrought by the addition of the words "in writing" to the statute is that the agent's authority must now be in writing. It follows that if the lease here under consideration is void as such, as to which we express no opinion, it is valid in equity as a contract to make a lease, the agent's appointment being in writing.
It is true that equitable defenses are not generally admissible in an action of ejectment. This Court, however, and some others recognize this exception thereto, viz: "possession by a defendant under a contract of purchase, so long as he is not in default." 19 C.J. 1084. Bolton v. Roebuck, 77 Miss. 710, 27 So. 630. There can be no difference in this respect between a contract of purchase and a contract for a lease.
The lease and power of attorney should have been admitted in evidence.
Reversed and remanded.
Loading…