Ford v. Miller

Hart, J. (after stating tbe facts). Tbe lease contract between Ford and Nalley covered a period of ten years under tbe conditions and terms recited in tbe contract. Section 4866 of Crawford & Moses’ Digest provides, in effect, that no lease for a term of years except a lease for a term not exceeding one year shall be assigned, granted or surrendered unless it be by deed or notice in writing signed by tbe party so assigning, granting or surrendering tbe same, or by bis agent lawfully authorized by writing or by operation of law. There was no written surrender or assignment of tbe lease in question. On that account counsel for tbe defendant claims that tbe attempted cancellation or surrender of tbe lease is void under the section of our statute of frauds just referred to. Under tbe statute of frauds it is settled that a written lease can not be canceled or surrendered by parol agreement alone, but it is equally well settled that an executed parol agreement for tbe surrender of a lease will effect such cancellation. Tbe rule of law invoked does not prohibit parol proof of a verbal agreement to surrender, which is effective when executed;. but only' goes to tbe extent of bolding that such parol agreement does not of itself constitute a surrender and cancellation of tbe lease. 24 Cyc. 1327; Taylor’s Landlord and Tenant, (9 ed.), vol. 2, par. 511-516. Because tbe written contract for tbe lease is not tbe essence of tbe contract, but only tbe evidence of it, tbe destruction of the written instrument does not of itself effect the surrender or the cancellation of the contract. In addition to the text writers cited above, it is well settled that a written contract.for the lease of land may be canceled or surrendered by a subsequent, distinct and independent parol agreement between the parties performed by them. In such cases the conduct of the parties operates by way of estoppel. Phelps v. Seely, 22 Gratt. (Va.) 573; Jordan v. Katz, 89 Va. 628; Goldsmith v. Darling, 92 Wis. 363; Brewer v. National Union Building Association. (Ill.), 46 N. E. 752; Auer v. Penn., 92 Penn. St. Eepts. 444; Stotesbury v. Vail, 13 N. J. Eq. 390; Williams & Davis v. Jones (Ky.), 1 Bush 621, and Coe v. Cassidy, 72 N. Y. 133. This rule has been recognized and applied by this court in Hayes v. Goldman, 71 Ark. 251, and Williamson v. Crossett, 62 Ark. 393. In the instant case, according to the testimony of Nalley, there was an absolute surrender of the lease by the delivery of it by Ford to Nalley for the purpose of cancellation. Nalley was at that time in possession of the premises and continued in the possession thereof. According to the testimony of Nalley and Miller, Miller paid the purchase price of the land and received a warranty deed therefor from Nalley upon the faith of the surrender of the lease. Upon the completion of the sale Nalley turned over the possession of the property to Miller. Thus it will be seen that the verbal contract for the surrender of the lease was fully performed, and the court was right in holding that this operated as a matter of fact to cancel the lease. It is true that the testimony of Miller and Nalley was disputed by the testimony of Ford and Bowers, but the chancellor found the facts for the plaintiff. There is nothing in the record tending to show that the finding of the court was against the preponderance of the evidence. Under the settled rules of this court the finding of fact made by a chancellor will not he disturbed on appeal unless it is against the preponderance of the evidence. We do not find that to be the case here, and the decree will be affirmed.