McCroy v. Toney

Campbell, J., delivered the opinion of the court. The single question presented for decision by this record is, Was-the lease of the land by words, without writing, on the 15th day of December, 1887, for the year 1888, invalid ? After careful consideration of all the learning on the subject furnished by the' text-books and English and American decisions accessible to us,, and touching this question, we answer it in the negative. The reasoning by which we reach this conclusion is this: Without the' statute of frauds such leases would be valid, and they are expressly excepted from it. It is as if our statute was, in the language of that of Georgia, “ contracts creating the relation of landlord and tenant for any time not exceeding one year may be by parol,” and from that language the supreme court of Georgia thought it indis-* putable that a contract for the renting of land made on the 25th of December, 1875, for the year 1876, was valid. Steininger v. Williams, 63 Georgia 475. The object in excepting from its provisions contracts for the making any lease (of land) for not more than one year is to let them stand as at common law whereby they were valid. The exception may be supposed to have been made [237] with reference to the custom of the country in which leases for a year are generally made without writing. As the statute applies only to leases for a longer term than one year, and thereby excludes leases for a year or less, it is not to be assumed that the very next clause of the statute (the infra annum •clause) was intended to apply to and invalidate what had been carefully excepted by the preceding clause, for the purpose of leaving it as at common law unaffected by the statute. Our view is sustained by the courts of England, New York, Colorado, Iowa, Indiana, Georgia, Michigan, and Tennessee, and maintains the prevailing custom of the people.of this state. Need on Stat. Frauds, § 196 and §815 and notes, where cases are cited. It is opposed by the courts of Alabama, Illinois, Kentucky, Massachusetts, and perhaps other states, but upon grounds unsatisfactory to us, and in most instances, as, it appears to us, without much consideration of the question. The statute of frauds sprung from the notion that certain matters should be evidenced by writing lest peijury should be committed to maintain claims on them. In England it was thought a lease for not more than three years from the making thereof, with a prescribed rent, was not of sufficient moment to incite to peijury, and such leases were excepted from the statute, 29 Charles II, and being excepted were held not to be embraced by the infra annum clause of the 4th section of that statute. With us it was considered that a lease for one year is not of sufficient importance to cause peijury, and therefore it is not required to be evidenced by writing. Section 1188 of the code, corresponding to § 2 of 29 Charles II, excepts a term of not more than one year from the requirement of a writing to convey land, and § 1292, which corresponds to the 4th section of the statute 29 Charles II, also excepts from its provisions the making any lease of land for a term not longer than one year, while the English statute does not, in its fourth section, except the leases excepted by its second section, and yet it is held there that such leases as are excepted by the 2d section, although not excepted •expressly by the 4th section, are by virtue of the exception in § 2, [238] not embraced in § 4. Surely, as our statutes §§ 1188 and 1292,. both exclude leases for a term not longer than one year, they cannot be held to be affected by § 1292. Before the statute 29 Charles II a term might be created by parol1 to commence in future. By that act writing was made necessary except as to leases for not more than three years, from the making thereof, etc. By our statute writing is necessary, except as to leases-for not more than one year, but the clause of the English statute, “ from the making thereof,” is omitted. ■ Hence, the conclusion that it has reference to the duration of the term, and not to the date of its commencement. The term, created by parol must not be for more than a year, but that may commence when the contracting parties-agree it shall begin. Ita lex seripta est, and it conforms to the practice of the people of this state. It is said, if a lease may be made on Christmas Day for the next year, without writing, it may be made to commence a year or five or ten years heuce. If true, what of it? If two persons able and willing actually should contract, the one to let and the other to enjoy and pay rent for premises for the year 1900, where is the harm of upholding the contract, though not in writing? The improbability of any such contracts being made suggests the improbability of their inclusion in any legislative scheme to regulate the transactions of society. Reversed, demurrer overruled, and cause remanded.