
    Gibson and Others v. Wilcoxen.
    
      Saturday, June 8.
    
    Where a lease of land is for a term within the statute of frauds, and for that reason required to be in writing, and the lessee executes notes to the lessor for the rents, and takes possession of and occupies the premises leased during the term, the question whether the contract could have been enforced if either party had refused to perform it before the expiration of the term, is not involved, and the lessee is liable to pay the notes.
    APPEAL from the Delaware Circuit Court.
   Hanna, J.

Wilcoxen, as assignee of Ghipman, sued Gibson, Gibson, and Brown, on three promissory notes. Brown answered, averring that he was surety only. In other respects, his answer and that of his co-defendants were similar, in substance, viz., 1. Want of consideration generally. 2. Want of consideration, because said notes were given for a parol leasing of land for four years. 3. Want of consideration, because the notes were given on a leasing of land for four years from September 1, 1855; that the payee had not the right to, and did not, put them in possession at that time, nor for six months afterward. 4. Denial. The defendant Brown added another paragraph to his answer, viz., want of consideration, because the notes were given for the rent of land leased by parol for four years, and for the performance of which said defendants, Brown as surety, executed a certain agreement in writing, a copy of which is filed, but that Ghipman did not execute any writing, &c. There was a demurrer sustained to this last named paragraph of Brown’s answer.

The plaintiff replied: 1. Denial. 2. In reply to the first and second paragraphs of the answer, that the consideration of the notes was the leasing and renting of a farm, particularly deseribingit, rented for four years from September 1,1855, to said Gibsons ; that on that day they took possession of all of it except a ten acre corn field and a log cabin, which were taken possession of on October 1, 1855, and held it all for and until the full end of the term, and accepted the same as a compliance with the stipulations upon the part of said Ghipman; that said leasing by said Ghipman was by a written agreement drawn up by said Ghipman, and signed by said Gibsons and Brown, a copy of which is set out. The agreement is not under seal, is not subscribed at the close thereof by Chijpman, and in describing the land states that “ the aforesa^ Ghipman has rented his farm to, &c.

Eeply to the third paragraph of the answer, that Gibson and Gibson took possession by virtue of said lease, and as a compliance therewith by said Chijpman, and held, &c., as set forth in the second paragraph. Separate demurrers of the parties to these replies were overruled. Trial; general verdict ; and judgment for the plaintiff.

Upon the trial, the plaintiff was permitted to give the written agreement in evidence, and by the verbal evidence of Chipmcm show to what land it applied. Upon the rulings on demurrers, and upon the admission of this testimony, the only questions that are fairly presented in the record are raised. It is insisted that the lease was void, under the statute of frauds, because it was not subscribed by Chipman, and did not sufficiently describe the premises leased, and that this omission can not bo supplied or' aided by oral evidence. To this it is answered in argument, that the lease was subscribed by Chijpman, as it is averred and proved that he wx’ote it, and his name several times occurs in the instrument as above quoted; and further, that if not properly subscribed by Chijpman it is binding on the other party without his signature for the full term, or at least for a part thereof.

It is not necessary to enter into an elaborate investigation of the several points thus attempted to be raised in this case, for the reason that it appears the Gibsons entered into the possession of, and occupied said land during the term for which the notes were given to secure the rent. The contract, although for a term falling within the statute of frauds, was thus fully executed upon the part of the lessor, and the consideration for the execution of the notes has not in any manner failed. The lessees were to hold for four years; and the question is not'whether the contract could have been enforced if either party had refused to perform it before the expiration of that time, and consequently we need intimate no opinion about the rights of either party in such a contingency. The lessor delivered possession, and kept the lessee in during the full time. The lessee occupied the lands and received the profits of his contract, and can not now be permitted to inquire as to whether in a given contingency the contract would have been binding upon either party.

T J. Sample, C. B. Smith, and W. J. Smith,, for the appellants.

W. March, and W. Brotherton, for the appellee.

Per Ouriam.

The judgment is affirmed, with 3 per cent, damages and costs.t  