Opinion
(December Term, 1848.)
1. A condition in a lease for years or for life, that the lease is to be void if the lessee assigns, is valid. But a lessee under such a condition may associate others with himself in the enjoyment of the term, or may make a sublease.
2. If one agrees by parol to buy land for another, and he does buy the land and pay for it with the money of his principal, but takes the deed in his own name, equity will enforce the agreement and compel him to make title to the principal. So of an agreement to procure a lease for another. In these, the statute requiring contracts for selling or conveying land, or leasing or agreeing to lease, to be in writing, does not apply.
APPEAL from an interlocutory order of the Court of Equity of DAVIDSON, overruling the pleas of the defendants, at Spring Term, 1848. Pearson, J.
Mendenhall and W. H. Haywood for plaintiffs.
Winston, Waddell, and J. H. Bryan for defendants.
The bill alleges that the plaintiffs and the defendants Adderton (431) and King agreed to associate themselves together as a company or copartnership, for the purpose of procuring a lease from the defendant Sawyer of certain land owned by him, and to search and operate for gold thereon; that in pursuance of this agreement King procured a lease from Sawyer of 75 acres of land for the term of twenty years; that the lease was taken "to King and those he may associate with him"; that after King had obtained the lease, the plaintiffs and the defendant Adderton, in pursuance of their previous agreement, requested King to sign with them written articles of agreement by which their interest in the said lease should be recognized and secured, and by which the parties respectively were to contribute equally towards the expense of working the mine, and to divide the net profits equally; that King, under one pretext and another, from time to time, refused to enter into any written agreement, and finally set up claim in himself to the whole lease. The prayer is that King may be declared a trustee of the lease for the plaintiffs and himself and the defendant Adderton, and may be decreed a trustee to convey to them as his associates, and for other relief.
The defendant King filed two pleas:
"The plea of Roswell A. King, one of the defendants, to the bill of complaint of Samuel Hargrave, James A. Long, and Samuel Gaither, exhibited against said King, Enoch Sawyer, and Jeremiah Adderton in this Honorable Court.
"This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in complainants' said bill of complaint to be true in such sort, manner, and form as the same are hereby set forth and declared, which for plea thereunto saith:
"That the lease mentioned in the bill, and this defendant is required to produce for the inspection of this Honorable Court, is the same of which a copy is hereunto appended, marked (A), and the original (432) of which is ready to be produced, if required by this Honorable Court, and defendant prays that the said copy may be taken as a part of this his plea.
"That by the terms of the said lease it will appear that this defendant cannot associate with himself any persons without the consent of the lessor, one Enoch Sawyer, or sell or transfer any part or interest in the said lease without such consent, on pain of a forfeiture of the entire lease by this defendant; and this defendant doth aver that the said Sawyer, on application by this defendant, hath refused his consent to the complainants, as lessees or associates of this defendant in the said lease, and hath informed this defendant that he shall insist on the condition in the said lease by which such association or transfer or sale to others, without his consent, is declared a forfeiture, and shall proceed to enforce the same should such sale, association, or transfer be attempted; all which matters this defendant doth aver and plead in bar of the complainants' said bill and pretended demands.
"And this defendant, for further plea, saith that he is advised that by the act of the General Assembly of this State, passed in the year 1819, Rev. St., ch. 50, sec. 8, `all contracts to convey lands or any interest in or concerning them shall be void and of no effect unless such contract, or some note or memorandum thereof, shall be put in writing, excepting leases for three years.' And also by the act of the General Assembly, passed in the year 1844, `all contracts for leasing or leases of lands, for the purpose of digging for gold or other minerals, or for the purpose of mining generally, shall be void and of no effect unless such contract or lease, or some memorandum or note thereof, shall be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.' And this defendant saith that neither he nor any other person by him lawfully authorized did (433) ever sign any contract or agreement in writing to sell or lease, or for the sale of or the leasing of, any lands to the complainants, or any lease for digging for gold or minerals generally, or any lands, or any interest in or concerning any such lands, for any such purpose or to any such effect, or any note or memorandum in writing of any such agreement, nor has any one signed any such deed, lease, or agreement, or any such note or memorandum thereof, by authority of this defendant."
Copy of the lease filed, omitting the details:
This indenture, made 22 January, 1848, between Enoch Sawyer of the county of Randolph and State of North Carolina, of the one part, and Roswell A. King, and those whom he may associate with him for the purposes therein contained, of the other part, witnesseth: That the said Sawyer, for and in consideration of the sum of $1 to him in hand paid, etc., and in further consideration of the covenants hereinafter contained, hath demised, granted, and leased, and by these presents doth demise, grant, etc., unto the said Roswell A. King and his associates a certain tract or parcel of land, lying, etc., containing 75 acres, more or less, to have and to hold the said land to him the said King and his associates, their executors, administrators, and assigns, together with all and singular the privileges for the complete assignment of the same for mining purposes, that is to say, from the date of these presents until 22 January, 1868, that is, twenty years; and the said King doth covenant and promise to commence operations on or before the 10th day of February next, and to pay to the said Sawyer one-seventh of all the gold, silver, and other metal which may be extracted or obtained from the said mine, which toll of one-seventh shall be paid monthly to the said Sawyer, his heirs or assigns. Also my mill-site, etc., etc. (434)
The said King has not the privilege of the timber, without permission. The said King not to sell or transfer this lease, under forfeiture of the same, without consulting said Sawyer.
ROSWELL A. KING. [SEAL] ENOCH SAWYER. [SEAL]
The plaintiffs set the pleas down for argument, and it was considered by the court that the said pleas be overruled, with costs, and that the defendant King answer the bill; from which interlocutory decree the defendant King prayed leave to appeal to the Supreme Court, which was allowed.
The appeal only brings up the interlocutory decree overruling the pleas. Our consideration, therefore, is confined to their sufficiency.
Many objections were taken in this Court for the want of form. It may be that the pleas are defective in form; but as we concur with the opinion below upon the substance, we express no opinion as to the formal objections.
The first plea was objected to because the allegation, "that the defendant cannot by the terms of the lease associate with himself any persons, or sell or transfer any part or interest in the lease, without the consent of the lessor, on pain of a forfeiture," is repugnant to and inconsistent with the terms of the lease, which is made a part of the plea. This objection would be fatal; but to raise the questions which were intended to be presented by this plea we will consider the allegation made so as to conform to the words and terms of the lease. Two questions (435) are there made: Is a condition valid by which a lease for years is to be void if the lessee assigns? Such a condition is clearly good in a term for years or for life. It is not a capricious exercise of power on the part of the lessor. In a lease for agricultural purposes the lessor is interested in having a good tenant and one who understands his business. He is more so in a lease for mining purposes, where greater skill is required and more confidence is necessarily reposed in accounting for the tolls or rent.
The other question is, Will King, by the terms of this lease, incur a forfeiture by recognizing the plaintiffs and the defendant Adderton as his associates and conveying to them as tenants in common with himself? Clearly he will not. Conditions are taken strictly because they divest estates; hence, although there be a condition not to assign, the lessee may make a sublease; a fortiori he may take in associates or partners. The lease under consideration has an express clause by which King is allowed to associate others with himself. The condition is, "that he is not to sell or transfer the lease"; in other words, he is not to "assign" so as to be himself no longer interested in it. The plea is founded upon an entire misconception of the lease and the condition. The object of the lessor was to provide that King should retain an interest in the lease, because he had reliance upon his skill and honesty. It was not intended to cramp his operations by excluding the aid of associates.
The second plea was objected to because the averment that "neither the defendant nor any other person by him authorized did ever sign any contract or agreement in writing to sell or lease, or for the sale of or leasing of, any lands to the complainants, or any lease for digging for gold, or minerals generally, or any lands, or any interest in or concerning any such lands," etc., is irrelevant to and does not meet (436) any allegation made in the bill; for the bill does not allege that the defendant did agree to sell or lease any land, or any interest in or concerning land, to the plaintiffs; but the allegation is that the defendant leased the land of Sawyer (which lease is in writing) for himself and as the agent of the plaintiffs and the defendant Adderton.
This objection is fatal; it goes to the merits. The plea does not allege that the agreement set out in the bill was not reduced to writing so as to raise the question whether that agreement comes within the operation of the statutes which are referred to in the plea. So the plea does not "hit the case" made in the bill, and is, therefore, no answer to it.
But if the plea had been so framed as to raise the question whether the agreement set up in the bill comes within the objection of the statutes referred to, we think it does not.
The effect of the act of 1844 is to except contracts "for leasing or leases" (when the purpose is to dig for gold, etc.) out of the exception in the act of 1812, allowing parol contracts for leases not exceeding three years. In regard to leases, both statutes are, by their terms, confined to cases where one makes a lease or agrees to make a lease to another.
It is well settled that if one agrees, by parol, to buy land for another, and he does buy the land and pay for it with the money of his principal, but takes the deed in his own name, equity will enforce the agreement, hold him to be a trustee, and compel him to make title to the principal; for the statute which requires all contracts "to sell or convey land" to be in writing, has no application. The principle is the same when one, by parol, agrees to procure a lease for himself and others, and does procure the lease in his own name, he is a trustee for those for whom he agreed to act, and the statutes referred to have no application.
The interlocutory decree, appealed from, must be affirmed, with (437) costs.
PER CURIAM. Affirmed.
Cited: Clement v. Clement, 54 N.C. 185; Cloninger v. Summit, 55 N.C. 515; Hanff v. Howard, 56 N.C. 445; Shelton v. Shelton, 58 N.C. 294; Cohn v. Chapman, 62 N.C. 94; Barnes v. Brown, 71 N.C. 511; Barnard v. Hawks, 111 N.C. 337; Cobb v. Edwards, 117 N.C. 247; Gorrell v. Alspaugh, 120 N.C. 366; Avery v. Stewart, 136 N.C. 440; Russell v. Wade, 146 N.C. 122; Jones v. Jones, 164 N.C. 325; Brogden v. Gibson, 165 N.C. 23.
Dist.: Sherrill v. Sherrill, 73 N.C. 14.
MEMORANDUM
The Honorable Richmond M. Pearson, one of the judges of the Superior Courts, was elected by the General Assembly, in December, 1848, a judge of the Supreme Court, to supply the vacancy occasioned by the death of Judge Daniel.
The Honorable William H. Battle, who had received the temporary appointment by the Governor and Council to the Bench of the Supreme Court, resigned that office in December, 1848, and the Honorable Richmond M. Pearson was elected to supply the vacancy thus created.
The Honorable Augustus Moore, who had received from the Governor and Council the temporary appointment of a judge of the Superior Courts, was elected to the same office by the General Assembly in December, 1848, and soon after resigned it, upon which the Honorable William H. Battle was elected to succeed him.
The Honorable John W. Ellis was elected to the office of judge of the Superior Courts by the General Assembly, in December, 1848, to supply the vacancy occasioned by the promotion of the Honorable Judge Pearson.
The Honorable Bartholomew F. Moore, who had received from the Governor and Council the temporary appointment of Attorney-General, upon the resignation of Honorable Edward Stanley, was elected to the same office by the General Assembly in December, 1848.
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