Mauney v. . Norvell

Clark, C. J. Rev., 976, provides: “All other leases and contracts for leasing lands,' exceeding in duration three years from the making thereof, shall be void, unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.” The lease under which the defendant claims was not in writing and he alleges it was made in February, 1918, to begin on 10 May, 1918, and was void. He was therefore simply a tenant at will, and if entitled to any notice to quit he was entitled only to a reasonable notice, and this was given at least three times. Rev., 976, is taken from the English statute of frauds, 29 Charles II., ch. 3, which, in the second section thereof, invalidates leases “exceeding three years from the making thereof” and provides that where leases and conveyances of interest in land are not duly authorized in writing they “shall have the force and effect of leases or estates at will only” The English decisions therefore hold that “under the English statute the period provided for must be counted from the making of the lease.” Rawlings v. Turner, 1 Ld. Rym., 736, and this has been followed in' this country generally, except in those States where the words “from the making thereof” are omitted, 20 Cyc., 215. In New York the trial court held that a lease beginning in futuro, not exceeding the prescribed period, was valid, because the new statute in that State had omitted the words (which are in the English statute, and which are retained in ours) “from the making thereof,” but the Court of Appeals reversed this, and held that the limitation still ran from the making of a lease.., Browne Statute of Frauds, secs. 33, 34, 36. “Where one goes into possession of land under an invalid lease, his tenancy at the inception is a tenancy at will. And so it is held that the status of one holding under an invalid lease made pending occupation under a valid one, to take effect in futuro or under a void sale, is that of a tenant at will. The invalid lease in such a case governs as to the rent to be paid, but not as to the terms or character of the tenancy.” 24 Cyc., 1039. *630 “A party who bas been let into tbe possession of land under a contract of sale, or for a letting, wbicb bas not been completed, is only a tenant at will of tbe vendor, and bis interest is determinable instanter by a demand for tbe possession.” Love v. Edmonston, 23 N. C., 152. Tbe court erroneously beld that tbe plaintiff, by accepting rent, was estopped to demand possession. Tbe plaintiff is not suing for rents, but for possession. He is entitled to rents as long as defendant remains in possession, and tbe statute requires tbe defendant to give bond for rents if be appeals. Rev., 2008. Tbe landlord does not waive anything if be accepts bis rents every month, instead of waiting tbe termination of tbe suit. Vanderford v. Foreman 129 N. C., 217. Acceptance of tbe rents by tbe landlord does not create a tenancy from year to year nor preclude tbe landlord from recovery. In action to recover tbe possession as thei plaintiff is entitled to damages for tbe occupation of tbe premises tbe plaintiff can accept voluntary payments without thereby ratifying tbe tenant’s possession, ibid. Tbe receipt of money for tbe use of premises is not inconsistent with a demand for possession, for it bas not misled tbe defendant nor put him to any disadvantage. Vanderford v. Foreman, supra, is very much in point, and is cited Product Co. v. Dunn, 142 N. C., 274. Tbe same section, Rev., 976, makes all contracts to sell or convey any land void unless in writing. In cases where there bas been a sale of land without being in writing, if tbe vendor accepts tbe whole of tbe purchase money, or any part thereof, it is not an estoppel on him to recover tbe land, but be must account for tbe purchase money received, and better-ments. This was settled in this State long ago, denying tbe doctrine of part performance, by Gaston, J., in Albea v. Griffin, 22 N. C., 9, and it bas always been approved since, see Anno. Ed. If, therefore, tbe receipt of tbe entire purchase money, and tbe surrender of possession to tbe purchaser and tbe erection of improvements is not an estoppel, certainly tbe receipt of tbe rent from time to time is not an estoppel, against an oral lease for more than 3 years. Resides, Rev., 980, renders invalid conveyances, or contracts to convey, or leases of land for more than three years, unless registered as against purchasers for a valuable consideration. Tbe plaintiff purchased this bouse and lot from Lane in March, 1918, and under bis deed be acquired title as against any unregistered conveyance thereof, or any unregistered lease wbicb could continue for more than' three years from that date. If an oral lease for 3 years beginning in future would be valid at all it would be valid no matter at what time in tbe future it would take effect, and if one such lease would be valid, a succession of them would be valid, and tbe protection of tbe statute in favor of purchasers would be lost, for tbe defendant’s lease not being in writing was necessarily unregistered. *631 Tbe payment of tbe rent did not create a lease between tbe plaintiff and tbe defendant, but was simply for tbe use and occupation of tbe premises for wbicb therefore be could not be charged upon eviction. If not paid, tbe judgment of eviction would have contained judgment for tbe amount of rent due, and for that reason tbe defendant was required to give a defense bond, Eev., 2008, which was doubtless dispensed with in this case.because of such payments. Eeversed.