The opinion
HART, J., (dissenting). In this State by statute, parol leases for a longer term than one year are invalid. Section 3664 of Kirby’s Digest reads as follows:
“All leases, estates, interest of freeholds, or lease of years, or any uncertain interest of, in, to, or out of any messuages, lands or tenements, made or created by livery and seizin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater effect or force than as leases not exceeding the term of one year.”
This section of the statute of frauds expressly dedares that all verbal contracts relating to the title to, or any interest in, lands for more than one year, shall be inoperative. It requires all such contracts to be in writing, signed by the owner, or if by an agent, he must be authorized in writing, signed by the owner, and the contract by the agent must be in writing, and signed by him.
In the case at bar the contract was for five years and was in writing signed by the agent of the parties. No authority in writing was conferred upon the agent to make such contract. The undisputed evidence shows that he had no such authority. It is unnecessary to express an opinion on this statute for the reason that I believe that the doctrine of part performance only applies to such contracts to lease or to renew leases as fall within the statute of frauds.
I do not think that the improvements made refer to and result from the agreement entirely as stated in the majority opinion. The greater part of the houses and some of the other improvements were built by him, not under his contract of lease, but under the belief that he was going to have the option to purchase the land. It is true the improvements which were made under the contract of lease were permanent in their nature and something more than required by ordinary husbandry, but they did not amount during the two years to more than the rental value of the land. Burrows had been renting the land on a lease contract from year to year. The improvements made by him under the lease contract with Dr..Grant were not of such a character and value as to be clearly inconsistent with a continuation of the old relation.
Therefore his continued possession should be referred to his original tenancy, and should not be considered an act of part performance of his contract for a new lease on the land.