Harvey v. Daniels

Anderson, J., delivered the opinion of the court. Appellee, J. B. Daniels, brought ejectment in the circuit court' of Humphreys county against appellant, Robert Harvey, for a house and lot situated in the town of Belzoni, and for damages for the use and occupation of the same. Appellee recovered judgment for the property, and also rental as damages for its use and occupation from the time appellant went into possession until the trial of the cause, from which pudgment appellant prosecutes this appeal. Appellee and appellant entered into a verbal contract of sale by the terms of which the former agreed to sell the latter the lot involved in this cause for the sum of three hundred dollars, to be paid in monthly installments of ten dollars, beginning with a cash payment of that amount. Appellant went along making payments until he had paid appellee the sum of two hundred and eighty three dollars, leaving a balance of purchase money due of seventeen dollars which appellant tendered to appellee, who declined to accept the same, and declared.the contract at an end, and demanded possession of the property. It will be seen at once that, on account of the contract evidencing the sale of the property involved being verbal, [45] it is within the statute of frauds and therefore unenforceable, and appellee- Avas entitled to a judgment for the property, which he obtained. Included in this judgment, hoAvever, AAas a judgment for use and occupation, not only after appellee had breached the contract, but also for the period between the time it was made and possession given and the time of such breach. The question is whether or not appellee Avas-entitled to recover for the use and occupation of the premises for the period of time between the date of the contract and possession thereunder and its breach by himself. In considering this question it should be borne in mind that a contract for the sale of land, although within the .statute of frauds, is not void, but only voidable; it is unenforceable. Sims v. Hutchins, 8 Smedes & M. 328, 47 Am. Dec. 90. It is legal for the parties to carry out such a contract, and they are at liberty to do so. Until such a contract is disaffirmed, the relation of landlord and tenant does not exist, but that of vendor and vendee; and where the contract is disaffirmed by the vendor, the latter is not entitled to recover for use and occupation for the period between the purchase and such disaffirmance. Where a vendor refuses to perform because the contract is within the statute of frauds, the vendee cannot be held liable for use and occupation prior to such disaffirmance by the vendor. 25 R. C. L. p. 720, section 366. Recovery for use and occupation can only be had by the vendor for the period during which the relation of landlord and tenant existed. That period did not commence in this case until appellee disaffirmed the contract. Therefore the trial court erred in leaving it to the jury to determine the reasonable value of the use and occupation of the house and lot in question between appellants purchase thereof and appel-lee’s disaffirmance of such purchase; and the court erred in refusing instructions requested by appellant by which it was sought to exclude from the jury any recovery for use and occupation for that period. The other questions argued by appellee, by which it is [46] sought to justify the judgment of the court, are without merit. There is some conflict in the evidence as to just what was a reasonable amount for use and occupation for said period. Therefore the case should be reversed and remanded, and another trial had in accordance with the views expressed in this opinion. In view of the fact that other questions might have been raised on this record, we would be understood as considering and passing on none except those raised and discussed. Reversed and remanded.