This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
47. Huntington v. Parkhurst, 87 Mich. 38, 24 Am. St. Rep. 146, 49 N. W. 597; Scully v. Murray, 34 Mo. 420, 86 Am. Dec. 116; Coudert v. Cohn, 118 N. Y. 309, 7 L. R. A. 69, 16 Am. St. Rep.
761, 23 N. E. 298; Rosenblat Perkins, 18 Ore. 156, 6 L. R. A. 257, 22 Pac. 598; Coffman v. Sam-mons, 76 W. Va. 13, 84 S. E. 1061.
48. Gibboney v. Gibboney, 36 U. C. Q. B. 236.
49. Griswold v. Town of Bran-ford, 80 Conn. 453, 68 Atl. 987; Morrill v. Mackman, 24 Mich. 279, 9 Am. Rep. 124; Steketee v. Pratt, 122 Mich. 80, 80 N. W. 989; Packard v. Cleveland, C. C. & St. L. R. Co., 46 111. App. 244; Williams v. Deriar, 31 Mo. 13; Stover v. Cad-wallader, 2 Penny. (Pa.) 117; Mades v. Howaldt, 46 Wash. 450, 90 Pac. 588.
It was said in an English case, frequently referred to51 that "though the agreement be void by the Statute of Frauds as to the duration of the lease, it must regulate the terms on which the tenancy subsists in other respects, as to the rent, the time of the year when the tenant is to quit, etc.," and it was there decided that the agreement controlled in this latter regard, that is the time of the year for quitting. While such a doctrine does not appear to have been applied in any other English case when the lease was invalid under the Statute of Frauds, it has been applied in connection with leases void for other reasons.52 The view thus asserted in England to the effect that, if the lessee enters by reason of an invalid lease, the terms of the tenancy are regulated by the language of the lease, has been not infrequently reiterated in this country.53 There are even decisions that if one enters under a lease invalid under the statute, the tenancy, if not previously terminated by notice, comes to an end on the expiration of the term named.54 A different view has, however, been asserted in one state, it being said that to give such
50. Post Sec. 64(b).
51. Doe d. Rigge v. Belle 5 Term R. 472, per Kenyon, C. J.
52. Beale v. Sanders, 3 Bing. (N. C.) 850; Lee v. Smith, 9 Exch. 662; Tress v. Savage, 4 El. & Bl. 36.
53. Cody v. Quarterman, 12 Ga. 386; Marr v. Ray, 151 111. 340, 26 L. R. A. 799, 37 N. E. 1029, aff'g 50 111. App. 415; Nash v. Berk-meir, 83 Ind. 536; Freedman v. Gordon, 220 Mass. 324, 107 N. E.
982 (semble); Huntington v. Parkhurst, 87 Mich. 38, 24 Am. St. Rep. 146, 49 N. W. 597. Reeder v. Sayre, 70 N. Y. 180, 26 Am. Rep. 567; Peoples v. Evens, 8 N. D. 121, N. W. 93; Snyder v. Harding, 38 Wash. 666, 80 Pac. 789.
54. Hollis v. Pool, 44 Mass. (3 Mete.) 350; Butts v. Fox, 96 Mo. App. 437, 70 S. W. 515; Magee v. Gilmour, 17 Ont. 620. See Tress v. Savage, 4 El. & Bl. 36; Doed Tilt v. Stratton, 4 Bing. 446.
1ll effect to an attempt to create a term without writing is directly contrary to the statutory requirement of a writing for this purpose.55
- Part performance. As elsewhere stated56 the courts appear generally to have adopted the view that if an oral gift of land is followed by the making of improvements by the donee, on the strength of the gift, equity will compel the donor to make the gift legally effective by requiring a conveyance of the legal title or otherwise. A like doctrine may well, it seems, be applied in connection with an oral lease, followed by improvements by the lessee, and there are a number of cases in which a lease within the Statute of Frauds has been regarded as valid by reason of such improvements.57 These decisions usually purport to involve an application of the equitable doctrine of part performance, but the expression "part performance," however inappropriate in the case of executory contracts, is even more so in connection with either a gift or a lease. A lease is, as we have previously stated, primarily a conveyance or transfer, and obviously a gift is a transaction of a like character. A conveyance or transfer having been made, nothing remains to be performed, and we cannot therefore well speak of the part performance thereof. The effect thus given to the making of improvements on the strength of the invalid lease would appear rather to involve the application of the principle of estoppel, or of a principle analogous thereto.
55. Johnson v. Albertson, 51 Minn. 333, 53 N. W. 642; Goodwin v. Clover, 91 Minn. 438, 103 Am. St. Rep. 517, 98 N. W. 322.
56. Post Sec. 547.
57. Philipps v. Grubbs, 112 Ark. 562, 167 S. W. 101; Steel v. Payne, 42 Ga. 207; Morrison v. Herrick, 130 111. 631, 22 N. E. 537, aff'g 27 111. App. 339; Bard v Elston, 31 Kan. 274, 1 Pac. 565; Benjamin v. Wilson, 34 Minn. 517, 26 N. W. 725; Wharton v. Stoutenburg, 35 N. J. Eq. 266; Wilber v. Paine, 1 Ohio 251; Wallace v. Scoggins, 17 Ore. 476, 21 Pac. 558; Jones v. Peterman, 3 Serg. & R. (Pa.) 543, 8 Am. Dec. 672; Veeder v. Horstmann, 85 N. Y. App. Div. 154, 83 N. Y. Supp. 99; Edwards v. Old Settlers' Ass'n - Tex. Civ. App. -, 166 S. W. 423; Matyger v. Arcade, Building & Realty Co., 80 Wash. 401, L. R. A. 1915A288, 141 Pac. 900.
[ Sec. 43
Occasional decisions that the mere taking of possession by the lessee, without the making of improvements, will validate the lease in the view of a court of equity,58 appear to be most questionable. There is in such case no hardship upon the lessee, as there is when he has made improvements, in regarding the oral lease as a nullity by reason of the non compliance with the statute.59