
    Johnson vs. Somers.
    Somers requested M’Farland to lease a tract of land. M’Farland gave'a lease of the land in writing for seven years: Held, that this was a good lease. The authority of the agent need not be in writing.
    Where a landholder gave a lease upon his land by parol, and his agent after-wards, without authority in writing, gave a written lease, and the lessor addressed a letter subsequently to the lessee recognising his possession of the premises as his lessee, it was improper for the court to have decided that such letter was written in reference to the first parol lease, and upon that assumption to have rejected the testimony. The letter was competent evidence and should have been submitted to the jury, leaving them to determine whether such letter was written in reference to the first or second lease, and how far such letter was an approval of the act of his agent.
    John Somers obtained a grant on the 2d day of August, 1824, from the State of Tennessee for three thousand eight hundred and forty acres of land lying in the 12th district in Weakley county, in the 1st range and 7th section. Somers, a resident of Wilson county, requested B. M. M’Farland, a-resident in the vicinity of the land, to grant leases on it for him. He, however, gave M’Farland no written authority to act upon his directions, nor was his request more specific than as stated. Somers having made some leases himself for the term of seven years of parts of the tract, M’Farland wrote and delivered the following instrument to John M. Castle-man :
    “I have leased to John M. Castleman one hundred acres of land lying in Weakley county, to he laid off so as to include all the improvements which said Castleman has made, not running further east than fifty yards from the house; and the said John Castleman binds himself to leave what land he may clear under a good eight rail fence with a good pole at the bottom. If the said Castleman should trade the above lease, said Castleman is bound to dig a well; but if not traded, he may do as he pleases on that subject. Seven years is given to said Castleman from the 1st day of January, 1835.
    “January 7, 1835. James Somers,
    Done by B. M. M’Farxand.”
    Castleman had been put in possession of the premises previously by Somers, and had made the improvements mentioned in the lease. On the 5th day of December, 1835, Somers addressed a letter to Castleman, in reply to a letter from Castleman, in which he says: “You say you wish to know something in relation to the lease I let you have: you want to know if I will take the clearing of land in the place of digging a well; cleared land is no object with me; my object in giving the lease was only to accommodate you. Water is scarce and I would rather have the well dug. -If you wish to trade the lease, I will take it back on terms which I think right. When I come to that country next spring I can see you on the subject.”
    On the 27th day of February, 1836, Castleman sold and transferred his claim of lease to Willis Johnson by the following instrument:
    “Know all men by these presents, that 1, John Castleman, have this day bargained, sold and delivered the within lease to Willis Johnson, his heirs and assigns, for the sum of sixty - dollars to me in hand paid by the said Willis Johnson. This 27th day of February, 1836. John Castleman.”
    Somers gave Johnson notice by letter to quit the premises, and he refused to do so. Somers instituted this action of ejectment against him in the circuit court of Weakley county on the 3d day of May, 1838. Johnson pleaded not guilty; and issue being taken thereupon, the case was submitted to a jury at the October term, 1838. Harris, the presiding judge, excluded from the consideration of the jury the letter and lease, and charged them that the authority from Somers to M’Farland did not authorize him to make the lease in question, and was not binding on him till expressly ratified by him; that Castleman was a tenant at will of Somers, and that Johnson was also; that if the plaintiff had notified Johnson by letter to quit the premises, such notice was sufficient, and they should find for the plaintiff.
    The jury returned a verdict for the plaintiff, and a new trial being refused and judgment rendered, the defendant appealed in error.
    
      Williams, for plaintiff in error.
    1. The statute of frauds, 1801, ch. 25, sec. 1, requires that leases of land of longer duration than one year shall be in writing, but it does not require that the authority of an agent to make such a lease shall be in writing. Talbot vs. Bowen, 1 Marshall, 436.
    2. Somers being informed of the lease, and not having dissented in a reasonable time, is bound by it. 1 Cain’s Rep. 539: 1 John. Cases, 110: 12 John. Rep. 300: 2 Kent’s Com. 478.
    3. The court should have permitted the letter of Somers to Castleman to have been read to the jury; they were the proper persons to have determined in reference to what lease it was written. 12 Mass. 237, 240.
    
      Fitzgerald, for defendant in error.
   Reese, J.

delivered the opinion of the court.

The record in this case shows that the only contest before the jury in the circuit court was as to the validity of the Written lease made by M’Farland, the agent of Somers, to Castleman, and by the lessee transferred to the defendant.'The testimony fully establishes the fact that the agent had verbal authority from his principal to make a lease to Castle-man. The court charged the jury that the authority from Somers to M’Farland, the agent, was insufficient, that Som-ers was not bound by the lease, and that Castleman was but the tenant at will of Somers, and so likewise was the defendant. The statute of frauds, 1801, ch. 25, sec. 1, requires that the promise or agreement upon which, in the various cases mentioned in that compendious and comprehensive section, an action shall be brought, some note or memorandum thereof shall be in writing and signed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized; but the statute does not require that the authority of the agent or the evidence of his agency, in order to be lawful, shall be in writing. The first and third sections of the statute of 29 Charles II, ch. 3, which relates to leases, &c. requires, indeed, the writing be signed by the parties making it, or their agent, authorized by writing. This latter requisition is omitted in the 4th and 17th sections of the English statute referred to, as it is also in our statute. The rule, therefore, adopted there as to contacts for the sale of land arising under the 4th section of their statute, that the power or authority of the agent need not be in writing, would exist here under our statute as to leases for more than a year, as well as to the other cases mentioned in this section. It is true, as remarked by Mr. Sugden, (Vendors and Purchasers, 121,) that it is in all cases highly desirable that the agent should have a written authority, for when he has merely a parol authority it must frequently be difficult to prove the existence and extent of it. We think, therefore, that the court erred in charging the jury that the agent had no sufficient authority, so far as the charge is predicated upon the want of written authority merely. We are of opinion, also, that the court en’ed in excluding from the jury the letter of Somers to Castleman, because, in connexion with the other evidence, it was competent and relevant testimony, tending to show, to say the least of it, the authority of the agent and the appi'oval of his act by his principal. That the letter did not relate to the written lease made by M’Far-land to Castleman, was an assumption which we think the court should not have made, but should have permitted the letter to go to the jury in connexion with the other testimony. Let the judgment therefore be reversed, and a new trial be held in this cause when the errors herein referred to maybe corrected.  