Opinion
(June Term, 1852.)
1. Verbal agreements for leases for any land for more than three years, and those for mining running for any term, though less than three years, are void, by statute.
2. And a contract to transfer such a term, or part of such a term, must, in like manner, be in writing.
APPEAL from Caldwell, J., at Spring Term, 1852, of RANDOLPH.
P. H. Winston, Sr., Miller and Gilmer for plaintiff.
Mendenhall and J. H. Bryan for defendant.
Assumpsit for the breach of contract on the part of the defendant in not finishing a horse gold-mill, which he had contracted to build, within the time stipulated.
The material facts are as follows: In May, 1847, the plaintiff, being owner of one-half of a lease on a gold mine, and the sole owner of a lease on another part of the same tract of land, by deed assigned the one-half of his interest in the mine to the defendant for $1,600; and the defendant, in part payment of the purchase money, agreed, by parol, to build a horse gold-mill for the plaintiff, on the lease of which he was sole owner, with $400, and was to finish it as soon as such a job could be finished. Defendant commenced and prosecuted the work until some time in the fall of 1847, and then left it in an unfinished state, and went to work on a mill he purchased on the river. In October, 1848, defendant sold and by deed conveyed to one Miller all his interest in the said horse mill, gold mine, and mill on the river, the plaintiff being present and making no objection.
It also appeared on the trial that the plaintiff, at the time (280) of the contract with defendant about said mill, was working said mine in partnership with the owners of the other shares, and after said Miller purchased out the defendant he, the plaintiff, and others, worked the said mine, and used the mill on the river as partners. It also appeared that on 10 December, 1847, the defendant wrote a letter to the said Miller, excusing himself for not having come back sooner to finish the work on the said mill, and requesting him to hire some one to complete the work; that said Miller handed over the letter to one Floyd to attend to, and he employed one Trotter to do the unfinished work; that said Trotter commenced work on the mill in January, 1848, and worked two days, when he was stopped, and directly thereafter all the machinery that had been put up at the said mill was taken down by the said partners and taken to their mill on the river.
It became a question on the trial whether the defendant was a partner with the plaintiff in the said horse mill, as well as the gold mine, by reason of some understanding between them; and several witnesses were called, who stated that they understood from the parties that they were in partnership in the said mill. There was no evidence offered of a written conveyance from the plaintiff to the defendant for any part of the lease, of which the plaintiff was sole owner, and on which the said mill was to be erected. Defendant's counsel insisted that if there was a partnership, the plaintiff could not recover, and moved the court so to charge. Plaintiff's counsel insisted that there could be no partnership in the said mill, as it was to be built on leased land; and that all leases of land for mining purposes were void, unless in writing, and none such had been offered in evidence; and the court was moved so to charge. It was insisted, also, by defendant's counsel that although the work on the mill had been suspended for several months, on the part of the defendant, yet if Miller, one of the partners, acted upon his letter and (281) employed Trotter to go on with the work, it was a waiver on the part of the plaintiff as to the suspension of the work. Plaintiff's counsel insisted that Miller, not being a partner at the time the contract was entered into between plaintiff and defendant about said mill, it was not competent for him to waive any right of the plaintiff in relation to such contract; and the court was moved so to charge.
The court charged the jury that if there was a partnership between plaintiff and defendant in the same mill, the plaintiff could not recover; and that though the law annulled leases for mining purposes, yet, after the lease was created by writing, it became a chattel, and was the subject of becoming partnership property without writing. Upon the second point, the court charged that if there was an abandonment of the work by the defendant, and afterwards the said Miller, if a partner at the time, assented to defendant's resuming the work, and he did so, and the work was progressing, and he was stopped by plaintiff, that would amount to a waiver of any previous failure on the part of defendant to fulfill his contract, though said Miller was not a partner when said contract was first entered into; and if such were the case, the plaintiff could not recover.
Verdict for the defendant. Rule for a new trial because of misdirection. Rule discharged. Judgment, and appeal.
The facts are obscurely stated, so that one (282) cannot be sure of comprehending properly the merits of the case. Yet one error seems sufficiently apparent to require a venire de novo. The terms of the instructions, in connection with the positions taken by the parties, imply that the lease to the plaintiff for the premises on which the mill was to be erected was for the purpose of mining, and that thereby the premises became vested in the plaintiff; and that it was intended in some way, direct or indirect, by virtue of a verbal contract, without any writing, to pass the premises and vest them, as partnership property, in the supposed firm constituted by plaintiff and defendant; and then it was laid down to the jury that the term would be so vested in the firm by force of the contract, though without writing. In that opinion the Court does not concur.
The act of 1819, Rev. Stat., ch. 50, sec. 8, makes void every contract to sell or convey any interest in land unless a note thereof be put in writing and signed — excepting only contracts for leases not exceeding three years. The act of 1844, ch. 44, further provides that all contracts for leasing, and all leases of land for the purpose of mining shall be void unless put in writing and signed. The two acts are in pari materia, and to be construed accordingly. The effect of them, taken together, is that all contracts to sell or lease land and all leases of land shall be void unless they be written, with an exception of leases not exceeding three years, with a proviso that leases or contracts for lease for the purpose of mining shall not be within the exception, but must be in writing. Therefore, the provisions are that verbal agreements for leases for any land for more than three years, and those for mining for any time, though less than three years, are void. That is not contested in respect to the creation of a term. But a distinction was taken at the trial between the creating and transferring a term; and in the latter case it was held that a writing was not necessary. It is true, there is no express provision in our statutes, as in the statute 29 Car., II., requiring an assignment or underletting by a termor to be in writing, by operation of law. But these results follow as (283) naturally and almost as necessarily from the fair construction of our acts as they do from the express provisions in detail in the English statute of frauds. Transfers by act of law, as in bankruptcy or by succession, arise from the nature of property, and there can be no necessity for requiring a writing to pass such interests, or for an enactment that they should pass without writing. What passes by operation of law is necessarily not within the purview of a statute providing for contracts inter partes, and prescribing certain forms for particular contracts, in order to guard against pretended contracts being set up by fraud and perjury. It is next to be observed that the creation of a term by the owner of the inheritance of a greater duration than three years, and the transfer of such a term by contract, stand precisely on the same reason, as to the danger of fraud and perjury in claiming under them. Therefore it is natural that they should be placed on the same footing in the statute; and the act, as a remedial one, should be construed as thus placing them, if the words will allow it. The words in these statutes, in truth, embrace the transfer of terms, as well as the creation of them. They are, that all contracts to sell or convey land or any interest in or concerning it shall, with one exception, be void unless in writing. Now, a term for years is not only an interest, but it is an estate, in land; and, therefore, a contract to assign a term is a contract to sell and convey land. Besides, it is a mistake to suppose that the statute, in respect to the creation of terms, embraces only those created immediately out of the inheritance; for it speaks of all contracts for lands, which includes, of course, all leases created in any manner other than those of three years or under, which are expressly excepted. Therefore, if a termor underlets the premises, or a part of them, for part of the term, so as to leave a reversion in himself, that is a new term created out of the (284) former, and is within the words of the act; and if it be for more than three years, it must clearly be in writing. The inference, then, seems irresistible that such a long termor cannot assign without writing; for it would impute an absurdity to the Legislature to suppose a writing indispensable for a termor to pass a part of his estate, while he is allowed to pass the whole by an assignment by word of mouth. It does not, indeed, appear what was the length of plaintiff's term; but it is not material, as it was assumed to be a mining lease, and as has been before observed, the act of 1844 puts that on the same footing with a term in lands generally exceeding three years, and therefore requires writing to create or assign it, by contract.
PER CURIAM. Venire de novo.