
    HAYS VS. GOREE.
    1. Under a parol contract, for the lease of lends, for five years, where the lessee has enjoyed the possession, for one year, the lessor may recover, in assumpsit, for the use and occupations of the premises, for that period. ■
    Error to the Circuit Court of Monroe.
    This action was assumpsit, against Hays, for the use and 'occupation of lands, the freehold of the defendant in error. The plaintiff below declared in two counts, for the use and occupation of a certain tract of land, with the appurtenances, lying, situate and being upon the Alabama river — for the space of one year; and in the first count, averred a promise to pay the sum of two hundred dollars, on request — ■ and in the second count, an undertaking to pay so much as the plaintiff deserved to have and receive, as rent, &c.
    Upon the trial, it was proved, that the plaintiff below, had leased to the defendant, by parol, the aforesaid tract of land,/or the term of five years.
    
    In reference to the evidence of this contract, the Court below was requested to charge the jury — first, that if a special contract were proved, it was incompetent for the plriatifí to introduce testimony, as to the value of the land for ote year : secondly, that if the jury were calisSod, that ¡.he contract of lease was for a longer fora than quo year; and that there existed no rnornovcndüm of such contract, in. writing', then the defendant was on ikied to a verdict. The Court, however, instructed the jury, that if the lease were to endure for five years, and there was no rae-morandnm in writing, the contract was void in law; and that the plaintiff could resort to an implied promise, for use and occupation.
    To these opinions of the Court, the defendant below excepted, and verdict being rendered against him, he removed the case here.
    
      Baghij, for the plaintiff in error — Stewart■ contra.
    
   Sastold, J.

The action was assumpsit,- by

the defendant in error, against the present plaintiff, to recover two hundred dollars, for the use and occupation of a plantation or tract of land, belonging to Goree, which, it is alleged, Hays had used, occupied and enjoyed for ovo year, (1828,) at his special instance and request, and by the permission of the former™ — which sum, for the consideration aforesaid, Hays is charged, to have undertaken and promised to pay. The trial yvas had on the general issue, and the plaintiff below recovered.

A bill of exceptions, taken on the trial, states that it was proved, Gores had leased or rented the land to Hays, for five years. “ Under this proof, the defendant requested tbs Court, to charge the jury, that if a special contrast v/as ¡¡roved, it was incompetent for the pkk’dff »-y h-kroduce proof of the value of the land, for one year.” Also, “if they were satisfied, that the lease or .renting from Goree to Hays, was for a longer time than one year, and there was no evidence or memorandum of that contract, in writing, they could not find for the plaintiff.” The charge given was, “ that if the jury found the lease to endure for five years, and there was no memorandum in writing of the lease, the contract was void, in law; and that the plaintiff could resort to an implied promise, for use and occupation.”

In refusing to give, the instructions requested,and in instructing otherwise, as stated, the Courtis charged to have erred.

- The counsel for the plaintiff in error insists, that a former decision of this Court, in the case of Bell vs. The heirs of Ellis, and the cases there referred to, are authority for a reversal of the judgment, in this case. On the part of the defendant, it is contended, that the cases cited recognise a different doctrine, sustaining this judgment.

In the case of Bell vs. The heirs of Ellis, Bell, the .original defendant had occupied the land, under a contract of sale, but the contract was illegal and void, because not made pursuant to a statute, which had authorised the sale of the estate of the heirs, in a particular manner. Subsequently the land was sold, according to the provisions of the statute, to a different person — the consequence of which was, that Bell was under the necessity of yielding the possession, at the end of the first year. The question was, whether rent, for the year, could be recovered against him, in an action of assumpsit, for use and occupation.

This Court then remarked, “that the action upon an implied promise. icr rent, will only lie, in virtue of the statute, a,id where the relation of landlord and tenant is preserved: nod, that this relation will be destroyed, v/hoa the possession is held under a contract of sale; though that contract may be void— ineffectual to convey the premises — or even prevented by the purchaser, himself:” and, that these principles were fatal to that nelion.”

This doctrine was declared, with reference, alone, to a contract, for the conveyance of the fee — and, in that view, with the necessary explanations of the other existing remedies, expressed or ira pled, there is conceived to. be no objection to it. But the decision referred to, does not declare, that the effect of all yoid contracts, for possession, shall be a denial of the right of recovery, in an action for use and occupation, nor a destruction of the relation of landlord and tenant. It soys the relation must exist, and that it will be destroyed, when the possession is held under a contract of sale, though the contract be void.

That decision was made with reference to the provisions of the statute of this State, “for the recovery of rent,” &e., passed in 1812, which is similar to the English statute, of 2 George, II, and to the statute of New York, on the same subject. Ours provides, that it shall be lawful for any person ,to whom any rent may be due, “ when the demise is not by deed, or, if by deed, not specifying the rent to be paid, to recover a reasonable satisfaction for the tenements occupied by the defendant, in an action on the case, for the use and occupation of what was held or enjoyed ; and if, on evidence, on the trial of such action, any parol demise, reserving any rent, or a demise by deed, but. no rent therein agreed on — -in either case, f-Iio plaiKifTIn ¡mob cans, shall not be non-suited, but sfewU vc^over r. roa. ton feble rotiofaotion for the oxws/fed.”

The tormo,r ter.oi ,l_ \ of ibw Cíente to which reference bar, beer.’ nwi'te, rests for its authority mainly om tho caso in New York, of Smith vs. Stewart. In that cuca, aa agrocmerA !wd been eniorod into, between the plrÁRtlíf tofo teifoodani, for th© sals of the lan,d. The' defendant, as purchaser, entered into possession, but afterwards refused to complete the purchase; upon v*hich the pi liniifi sued for the use and occupation. The q icoi-ion, whether that action was sustainable, open fociy as stated, being* presented for the consideration of tbs Supreme Court; they remarked that at go i«mou law, no action of as-sumpsit for rent, would lie, except on an express promise, mads at íhe timo of the demise. That the action before tbom wee givon by the English statute, which that State had adopted; bar tbaifiom its terms, “it seemed to apply only to feo caso of a demise, and where there existe the reíatLon of landlord and tenant, founded on some agreement creating that relation.” That the defendant in that case entered under a colour of title which might hare been enforced in equity.” That by lofving to perform the contract, he changed him so if into a trespecsor. That he never was sirio;Iy a tenate, rever was entitled to notice to quit, ccr liable to diofeess, or to an actios of assumpsit for rani,. But he- was declared to have been liable ío be turned out as a trespasser, and responsible in that chámete?, for the mesne profits.— Our previous dociliten also refers for authority to a decision in Engined, Kenland vs. Pounsett, There a purchaser took pewnsfeen o! the premiers and paid tlie full prisa egr- :l :•: ’ o ''.wkrci; of cale, which, 02 rcsowl oí r f o. i k: \ orders tille, failed to bo GcmpIoLd. kh,-- 1 -o consublí-mate Ihe tide, ib j w hv • ’ bxi'k ko woooscicn, declared aroiíckioo c; k k ■.... wb w..d íonind recovered book the j:o„:„k,-v wricy,, wills 'be expenses of iíiveoii¿ki' y si'" kk-, TV?, vendor then instituted this ekior lo ;'cvv, i ík Vo lime during which the deíkvk rk kV w. -o■vi;;:': Te premises. The Court”of Caminan kiwi vid ;:],pky ¡?, contract could not orisa by iwTc.w ski.-;;, order circumstances, the oecrvTenco of vkV» t ■ ‘Tvrcf tbo parties ever had in thkk ewwy; Vw. kket if money had been paid, and pcowkw i kw wowy a title, it was jest Tk To ove ¡o- ,y k okb vrkc back his money and the otliir kko book ok hcwio; and it was impossible lo a.-ok Vo wo.* of kw depend on the loss or gain in cock boww?. TV these decisions are understood to ¡V m boon wde under statutes substantially the ;wm-¡ V oere, end I have noticed them more in detail Vw would Giber wise have been necessary, to chow Ihv. bath ef them (as well-as the previous dockío-i of íhio Contri,) ware made in cases clearly distinguishddc fren,' W They do not determine ibo question, whether a-smmpsit will lie for the use and ocoap.khr of Iwüs for ouo year, when the possession was inker by tiro permission of the plaintiff, under a pwd jkv.e, fes a longer term; or whether such enjoyment of the premise::, though the contract can boí; be spcWkiy enforced, does not create the relation of land Ic/d and Sonant.' Admitting that such eoTsemok! caa bV. be enforced against a lessee who has taken no bowfir f.o;n the contract, it does not follow that ora yk; bus enjoyed the profits under the lease, for one or five years, should not be legally responsible for the- term during which it was competent for the partios to contract by parol.— The restriction of the statute is only, that no action shall be brought whereby to charge any one “ upon, any contract for the sale of lands,” o&c., “ or the making any lease thereof for a largor term than one year.” This áction is brought for but one year, and though the contract was for a larger term, it does not appear, (if that were materia!,) that any price or rate of rent was agreed on. Piad the permission to occupy, been for an indefiniie term, iho relation of land lord and tenant would have been unquestionable.

There are other decisions by the Supreme Court of New York, which also relate to this subject.—The case of Osgood vs. Dewey, was an action'for use and occupation. The Court held that the action was sustainable upon an implied as well as an express permission of the landlord. That a tenant 'who, after the expiration of his term and payment of rent, under a parol demise, continues in possession, without any new agreement with the landlord, can not, in an action against him for the use and occupation, of the premises, subsequent to the expiration of the former term, dispute the title of the plaintiff. That his subsequent holding will be deemed to have been by the implied permission of the original lessor.

Again, in the case of Abeel vs. Radcliff, the same doctrine, of subsequent liability, was maintained against a lessee, by deed, who held over after the expiration of the time; also against one holding under a covenant contained in the expired lease, for a renewal of the lease, though no price or rate of rent, for the subsequent term, was expressed. Such was declared to be the law of that contract, notwithstanding the deed contained a covenant for a renewal of the lease, without sufficiently defining the term of renewal; and for which uncertainty the Court considered that covenant void, under the statute of frauds, so that it could not be enforced. The decision of this Court in the case of Allen vs. Booker, referred to by the defendant in error, is also entitled to its influence on this case. It is ruled, in that case, that an action of assumpsit is sustainable, to recover back money, paid on a parol purchase of land — such contract being void, by the statute of frauds.

The principle of the decisions last reviewed, I understand to be, that though contracts be void, under the statute of frauds, so that the law will not enforce them — yet, that the maxim ex turpi causa, non oritur actio, does not apply to such. That if one has entered into such contract, and received value under it, the law creates a responsibility, and implies a promise to pay, or account to the other, according to the obvious justice of the case.

In the present case, we think the parol lease, and the enjoyment of possession, under it, for a year or more, created the relation of landlord and tenant, at least for the one year; and during this time, the occupant would have been entitled to noticé to quit— consequéntly, that this action was sustainable, for a fair and reasonable rate of rent, for the same term.

We are unanimous in the opinion, that the judgment must be affirmed. 
      
       6 Johns, Rep. 46.
     
      
       2 Taunt. 145
     
      
       13 Johns Rep. 240
     
      
       13 Johns. Rep. 297
     
      
       2stewt.2i
     