
    No. 9036.
    Nash et al. v. Berkmeir.
    Landdobd and Tenant. — Married Woman. — Separate Lease of Ser Land:— Contract. — A wife’s parol lease of her land for the term of five years, made • without the husband’s concurrence, may he enforced in respect to the-terms for the payment of rent against the lessee holding possess) on under the lease.
    
      Same. — Statute of Frauds. — Leases.—Under the statute of frauds, a parol lease of land for a longer time than three years is not void, and the lessee who has taken and holds possession under such lease must pay rent according to its terms, the tenancy being from year to year, but in other respects governed by the agreement.
    From the Switzerland Circuit Court.
    
      W. D. Ward and T. Livings, for appellants.
    
      J. D. Works and J. A. Works, for appellee.
   Woods, J.

The appellants, as husband and wife, sued the appellee for money alleged to be due the wife as rent for land held under a lease made by her to the appellee for a term of five years, at an annual rental payable on the 1st day of February each' year, it being alleged in one paragraph of the complaint that the lease was by parol, and in another paragraph that it was in writing, and a copy is filed with the paragraph.

To each paragraph the appellee answered that at the time of making the lease the lessor was a married woman, and that her husband did not join inthe making of the contract. Upon demurrer for want of facts the court held these answers good.

The question presented for decision is whether or not the lessee under such lease, who has taken and is holding undisputed possession of the property, may repudiate the contract under which he obtained possession, and, holding as a tenant for years, be liable to pay rent only at the end of the year, and then only in a reasonable sum, as if there had been no special contract. The holding of the court below was in the affirmative ; but we do not concur in that view.

Counsel for the appellee claim that the lease was void because not in writing, as required by the statute of frauds, and because made by a married woman, her husband not joining.

In Sanborn v. French, 2 Foster, 246, it was said: "As a general rule, the separate deed of the wife is held to be void • and, except in the case of a lease, is incapable of being confirmed by the wife after the husband’s death.” Granting that such a lease, so far as affected by the disability of coverture, might be confirmed after the husband’s death, there would seem to be no good reason why there may not be a confirmation by the joint act of the wife and husband, when the contract is such as might have been made by their joint act.

This court has recently held that a wife may, without the consent or participation of her husband, make leases of her land for periods not longer than three years — such lease not being an encumbrance or conveyance within the meaning of the statute, which denies her “power to encumber or convey such lands, except by deed, in which her husband shall join.” Pearcy v. Henley, 82 Ind. 129.

• The statute of frauds also forbids the making of leases of land for more than three years, unless in writing; but such lease is not, by reason of that statute, void, and, if possession be taken and held under it, the rights of the parties, except "that the holding is from year to year, will be governed by the terms of the contract. Railsback v. Walke, 81 Ind. 409; People v. Rickert, 8 Cow. 226; Tress v. Savage, 4 Ellis & B. 36, and cases cited. The case of Schmitz v. Lauferty, 29 Ind. 400, decides nothing to the contrary of the foregoing.

So, too, if money has been paid upon a parol bargain, within the statute of frauds, for the purchase of real estate, and the seller is willing and able to convey, the purchaser can not, by repudiating the contract, acquire the right to reclaim the money which he has paid. Day v. Wilson, ante, p. 463, and authorities cited.

By a plain analogy to these decisions, and in harmony with the just and equitable principles which underlie them, it must be held that so long as the appellee retains the possession which he obtained under and in consequence of the lease in question, he must pay rent according to its terms. Further than this the case does not require us to go; to stop short would be to convert the law into an instrument of fraud.

Judgment reversed, with instructions to sustain the demurrer to the answers.  