Martin v. Blanchett

SOMERVILLE, J. The charge of the court was clearly erroneous. Admitting that the contract of renting between the parties was void under the statute of frauds, as a parol agreement for a lease for the term of one year, to commence in futuro, within the principle decided in Crommelin v. Theiss & Co. (31 Ala. 412); the defendant, nevertheless, went into possession of the premises, occupying under his verbal contract, and paid his rent to the plaintiff; and this act of recognition of 290 the relation of landlord and tenant created a tenancy, and operated to impart validity to an agreement, otherwise deemed void, because not in writing and signed by the party sought to be charged. — Singer Manufacturing Co. v. Sayre, 75 Ala.; Crawford v. Jones, 54 Ala. 459; Nelson v. Webb, Ib. 436. The record shows, moreover, that the statute of frauds was not specially pleaded, the only plea being the general issue. The benefit of the statute, therefore, was not available, but was waived. — Shakspeare v. Alba, 76 Ala. 351; Cooper v. Hornsby, 71 Ala. 62; Comer v. Shehan, 74 Ala. 452, 458; Harris v. Miller, 71 Ala. 26. The contract of the defendant to pay for the advances made to him by the plaintiff was a valid legal promise, upon which an action would lie, and for the amount of which the plaintiff was entitled to the landlord’s lien secured by section 3467 of the present Code, and the act amendatory thereof, approved February 12, 1879, with the remedy by attachment thereby afforded for its enforcement. Reversed and remanded.