Shakespeare v. Alba

SOMERYILLE, J. — The bill is one filed for the specific enforcement of a verbal contract to make a lease for a term of five years. It is brought by the complainant, Alba, as assignee of the leasehold estate, against the Elyt'on Land Company and the other appellants, who claim by privity of estate from this corporate company. It is insisted that the agreement of the Elyton Land Company to lease the land in controversy to Orr, the assignor of complainant, was void, because repugnant to the Statute of Frauds, which annuls all verbal agreements for the sale of lands, or any interest therein, “except leases for a term not longer than one year, unless the purchase-money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller.” — Code 1876, § 2121, sub-div. 5. It requires no argument to support the self-evident proposition, that a lease of land for a term of years is a sale of an interest in land, within the meaning of this statute. This appears, not only from the very nature of such a lease, which is in effect a conveyance or grant of the possession and use of the leased premises for a fixed period, thereby vesting a title and estate in the lessee, but is clearly manifest from the very words of [355] the statute, by which leases of a certain class are expressly excepted from the operation of its provisions.— Warren v. Wagner, 75 Ala. 188; Code, § 2121, sub-div. 5. Under the fifth sub-division of the present Statute of Frauds, verbal contracts for the lease or sale of lands are withdrawn completely from its influence, in all cases where the purchase-money, or a portion thereof is paid, and the purchaser is put into possession of the land. When these two facts concur, the requirements of the statute are satisfied, and there is such a part performance of the contract as to render it valid and capable of enforcement by specific performance in a court of equity. — Heflin v. Milton, 69 Ala. 354. In this case, the lessor is the seller, and the lessee the purchaser, within the contemplation of the statute. The facts show that the lessee was placed in possession of the premises under the lease, and paid many of the monthly installments of rent, which was nothing more nor less than the purchase-money for his five-year leasehold estate, which had been agreed to be granted him. The case is one which is obviously rescued from the influence of the Statute of Frauds by these attendant facts. There is another view of the case, equally persuasive of the correctness of the foregoing conclusion. The agreement in question does not offend the Statute of Frauds for yet another reason. The benefit of this statute is not available, without its being specially pleaded ; and if waived, and the contract is admitted, or satisfactorily proved, it will be enforced. Our more recent rulings hold that such agreements, therefore, are not strictly void, but voidable merely.— Cooper v. Hornsby, 71 Ala. 62; Comer v. Sheehan, 74 Ala. 452. If the defense of the statute is not insisted on, either by demurrer or answer, it must be considered as waived, upon the familiar maxim, Quidlibet renunciare potest juri pro se introducto. — Broom’s Maxims, 546. “A man may,on principle,” it has been said, “as well renounce the benefit of the Statute of Frauds as a defense, as the statute of limitations, or a discharge in bankruptcy.” — Willard’s Eq. Jur. 283. And such is the theory of our law, and the practice under our decisions. — Baily v. Irwin, 72 Ala. 505 ; Patterson v. Ware, 10 Ala. 444. The record shows that the original lessor, the Elyton Land Company, have failed to set up the defense of the statute, intentionally refusing, it seems, to do so. This defense is, therefore, waived so far as they are concerned. Their vendees, Shakespeare, Lewis, and Hardie, are equally precluded from making this defense, but for a different reason. They were not purchasers of the leasehold estate, but only of the reversion. They bought the land in controversy subject to the lease, becoming assignees of the uncollected rent. The lease in [356] question was, therefore, excepted out of the operation of the conveyance made to them by the lessors,'who were the owners of the reversion only, at least so long as they declined to repudiate their verbal sale, either by pleading the Statute of Frauds, or by making sale to these vendees of the term for years by conveying to them the entire fee-simple in the land which is the subject of controversy. — Heflin v. Bingham, 56 Ala. 566. If there was any thing in the suggestion, that the agreement sought to be enforced is repugnant to the first clause of the Statute of Frauds, as an “ agreement which, by its terms, is not to be performed within one year from the making thereof” (Code, § 2121, sub-div. 1), this defense is unavailable for the reasons above specified. But the suggestion is not, in our opinion, supported by the facts of the case. This clause of the statute, as is well settled, applies only to such agreements as do not admit of performance according to their language and intention, within one year from the time they are made. It has no reference to such as may be construed to be capable of performance within that time, according to the intention of the contracting parties. — Browne on Stat. Frauds, § 273 ; Heflin v. Milton, supra. The agreement sought to be specifically performed is the execution of a lease for a term of five years. The duration of the lease, whether for one or for twenty years, does not touch the question as to the time within which it was to be executed. When the lease is made in writing, and properly signed, in accordance with the provisions of the statute governing the conveyance of real estate, this would, when followed by a delivery of the instrument, be a full and complete execution of the lessor’s agreement, whatever might be the mere number of years the leasehold estate is to endure. If an agreement to sell and convey the entire fee-sitnplein perpetuity would be rescued from the Statute of Frauds, because of the purchaser’s going into possession of the premises and paying a part of the purchase-money, for exactly the same reason any less estate would be, whatever its nature, duration, or character, and for the plain reason that the greater always includes the less. — Eaton v. Whitaker, 44 Amer. Dec. 586, 590. The assignors of the lease may have been proper parties to the present suit, but they were not, in our opinion, necessary parties. The assignment of the lease was absolute and unconditional, leaving no interest in the assignors ; and the validity of the assignment is not assailed or denied. Where this is the case, and the original lessor makes no objection, in his answer or other pleadings, to the solvency of the assignee, and does not specially ask, at the hands of the court, the personal liability of the assignor for the covenants imposed by the lease, there can be no objection taken to the complainant’s failure to make [357] such assignor a party to his bill for specific performance. — Waterman on Spec. Perf. § 68, note Story’s Eq. Pl. §153; Pomeroy on Cont. § 487; 1 Platt on Leases, p. 629 ; Rogers v. Torbet, 66 Ala. 547; Wilkerson v. May, 69 Ala. 33. The decree of the chancellor is affirmed.