
    [No. 5813.
    Decided January 4, 1906.]
    Thomas J. Watkins, Respondent, v. Henry Balch et al., Appellants.
      
    
    Frauds, Statute of — Oral Lease for Term of Years — Part Performance. One who enters into possession of real property, under an oral lease for a term of years is a tenant from period to period in which the rent is reserved, and the tenancy may be terminated by the statutory notice before the end of each such period for which the rent is payable.
    Same — Performance of Services as Payment of Rent — Neces-' sity of Showing Value to Take Case Out of Statute. An oral lease for the term of five years, in consideration of the services of the tenant in caring for a flock of goats and the performance of labor in clearing the land and making improvements to the value of $100 each year, is within the statute of frauds and creates a tenancy from year to year, unless it is made to appear that the improvements increased the rental value of the premises; and a mere finding that improvements had been made to the extent of $300, is not sufficient to show that the tenants suffer any material injury as to such rental value.
    Appeal from a judgment of the superior court for Che-ha.lis county, Irwin, J., entered April 10, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action of forcible entry and detainer.
    Affirmed.
    
      W. H. Abel, for appellants.
    
      J. A. Hutcheson, for respondent.
    
      
      Reported in 83 Pac. 321.
    
   Fullerton, J.

This is an action under the statute of forcible entry and detainer. On March 1, 1902, the respondent and the appellants entered into an oral agreement whereby the respondent undertook to lease to the appellants certain farm -lands, situated in Chehalis county, for a term of five years, in consideration that the appellants would, during that time, care for a flock of goats the respondent intended purchasing and putting on the land, and would perform work and labor in clearing and improving the land to the amount in value of $1QD for each year during the term of the lease. Pursuant to this agreement, the appellants entered into possession of the property, and have since continued in such possession, during which time they have carefully cared for the goats, and have -performed work and labor on the premises in the way of permanent improvements of the value required by the teams thereof. Some days prior to March JL, 1905, the respondent served written' notice on the appellants to quit and surrender the possession of the premises on that date, it being the end of the third year of the term. The apr pellants refused to surrender such possession, whereupon the respondent brought this action to obtain such possession. He was successful in the court below, and the appeal is from the judgment in his favor.

The sole question presented by the record is the validity of the oral lease. The appellants concede that ordinarily an oral lease of real property for a longer period than one year is void under the statute of frauds, but they argue that, because of the peculiar natoe of the rental they were to attorn for the use of the land, this case is differentiated from the ordinary oral lease where only a money rent is reserved, and presents equitable features which entitle the appellants to the full enjoyment of the term.

Were this the ordinary case of an oral lease for a fixed period with a yearly reservation of rent and a taking of possession thereunder, we would have no hesitancy in holding that it was a tenancy from year to yeai', as the statute itself provides that such is the effect of an oral lease, void under the statute of frauds, which has been thus partially performed. The statute, after providing that all conveyances of' real estate or interests therein, and all contracts evidencing any incumbrances thereon, shall be by deed, and that such instruments, other than a lease for a term not exceeding one year, shall be in writing signed and acknowledged by the party bound thereby, provides that, when premises are rented for an indefinite time, with monthly or other periodic rent reserved, such tenancy shall be construed to be a tenancy from month to month, or from period to period on which rent is payable, and shall be terminated by written notice of thirty days or more, preceding the end of any of such months or periods, given by either party to the other. An oral lease, therefore, where possession of the property has been taken, is not void in toto, but it may not be a lease for the term agreed upon. If the rent reserved is to be paid periodically it is a lease good for one of such periods, but subject to be terminated at the end thereof, or at the end of any other of such periods. Thus, under the statute, where one enters into the possession of real property under an oral lease for a definite time with periodic rent reserved, he is not a tenant for the time agreed upon, but a tenant from period to period, corresponding to the times on which rent is payable. Such a lease can be terminated, as the statute provides, by written notice given at the prescribed time before the end of such period. Richards v. Redelsheimer, 36 Wash. 325, 78 Pac. 934; Evans v. Winona Lumber Co., 30 Minn. 515, 16 N. W. 404; Morrill v. Mackman, 24 Mich. 279, 9 Am. Rep. 124; Arbenz v. Exley, Watkins & Co., 52 W. Va. 476, 44 S. E. 149, 61 L. R. A. 957; Coudert v. Cohn, 118 N. Y. 309, 23 N. E. 298, 16 Am. St. 761, 7 L. R. A. 69; Rosenblat v. Perkins, 18 Ore. 156, 22 Pac. 598, 6 L. R. A. 257; Bard v. Elston, 31 Kan. 274, 1 Pac. 565; 18 Am. & Eng. Ency. Law (2d ed.); 194.

On the other hand, the courts generally hold that, where there is an entry and the payment of rent in advance for a fixed term under an oral lease, the lease is good for an entire term, although the ’lease be a longer term than is permitted by the statute; this on the principle that it, would be permitting the statute to perpetrate, rather than prevent, frauds if thereunder a landlord may accept rent for a given term and then use the statute to evict the tenant before the end of such term. Clark v. Clark, 19 Cal. 586; Morrison v. Herrick, 130 Ill. 631, 22 N. E. 537; Dunckel v. Dunckel, 141 N. Y. 427, 36 N. E. 405.

It is this latter principle that the appellants seek to invoke in this case, but we think the finding of the court too meager to bring them within the rule. The evidence is not brought here in the record, and the facts must rest on the findings of the court. And while the court found that permanent improvements had been made on the premises to the value of $300, it did not find whether or not such improvements increased the rental value of the premises. It, of course, is inferable that such improvements would increase the rental value to some extent, but the amount is conjectural, and as the appellants are relying on an equitable principle, the burden was upon them to show that they would suffer some material injury if the ordinary rules of law were enforced against them. This, as we view the findings, they have not done, and we must hold that they were tenants from year to year, and subject to ouster at the end of each yearly period.

The judgment is affirmed.

Mount, C. J., Rudkin, Hadley, Crow, and Root, JJ., concur.  