Smelling v. Valley

Montgomery, J. This was a summary proceeding to-recover possession of land for non-payment of rent. Com [581] plainant had demanded the payment, as the jury must have found under the instructions of the court, and, on the defendant's refusal to make payment, had served the the seven-days notice to quit provided by How. Stat. § 8295. 'The defendant having failed to vacate within the seven days, this proceeding was instituted. The evidence which the jury followed showed that complainant bought the land with defendant in possession;1 that defendant stated to complainant that he had no contract for further occupancy of the land from complainant's predecessor in title; that thereupon it was agreed by parol that defendant should clear up and fit for cultivation seven acres of land, during the spring of 1893, in time for spring crops, and that, in consideration of this, he should be privileged to occupy the land for two years. Defendant failed to make the clearing agreed upon, and this failure was followed by the demand and notice above referred to. If the parties were bound by the terms of the agreement, there could be no doubt that the jury were justified in finding for complainant. Judd v. Fairs, 53 Mich. 518. But it is insisted that the contract was within the statute of frauds; that complainant could not be bound beyond one year; and that, if this was so, defendant could not be held to be bound to pay the consideration for two years' occupancy, and that, therefore, he must be held a tenant at will. It is undoubtedly a general rule that an agreement void under the statute of frauds is void in all its parts, and cannot be considered for the purpose of assessing damages, .and is not good as fixing the consideration. Sutton v. Rowley, 44 Mich. 112; Raub v. Smith, 61 Id. 543; Wardell v. Williams, 62 Id. 50. But, in this case, defendant [582] had entered upon the performance of his contract, and-was occupying the land under it, and had made a portion, of the clearing agreed upon. Under such circumstances,, he could have enforced the parol agreement by a resort to-equity. See Wood, Landl. & Ten. §§ 201, 202, and cases cited. See, also, Davis v. Strobridge, 44 Mich. 157. It. would be against the direct agreement of the parties to-substitute a tenancy, from year to year or a tenancy at-will for the one agreed upon between the parties. We-think it does not lie with the defendant to say that he is-not bound to pay the consideration which was agreed upon, as a condition to his continued occupancy, even though that payment included compensation for a term which he might be compelled to resort to a court of equity to obtain, as long as the complainant stood ready to perform the contract upon his part. The judgment will be affirmed, with costs. Long and Grant, JJ., concurred with Montgomery, J.. Footnotes [1] The deed is dated April 6, 1893.