Culver v. Van Valkenburgh

*449 Opinion by Mr. Chief Justice Eakin.

But two of the assignments of error need be considered:

1. (1) As to the effect of the oral transfer by Huff to defendant M. Van Valkenburgh of his leasehold interest in the premises. Tiffany on Landlord and Tenant (page 950) states that, for the purpose of enforcing the payment of rent, a person, other than the lessee, found in possession of the premises will be prima facie presumed to be In possession as assignee of the leasehold, which presumption may be rebutted by evidence that there was no actual assignment, or that he is a sublessee, in which latter case he is not liable to the landlord on the covenants of the original lease. His liability is upon the covenants of the sublease and to his lessor only. But, in order that one may be liable on the covenants as an assignee of the leasehold, there must be a legal assignment to him. It is not sufficient that he be in possession. Under the statute of this State (Section 808, L. O. L.), no estate or interest in real property can be created or transferred, except it be in writing, signed, etc., which includes an assignment of a leasehold interest in lands for a term of more than one year.

2, 3. The contention of plaintiff that the assignment being oral will be construed to be a tenancy from year to year can have no application to the liability of the defendant for damages for breach of the covenants of a written lease; nor does part performance take the case out of the statute of frauds, such relief being cognizable in equity for the purpose of obtaining specific performance, and has no application in an action for damages for breach of covenant in a contract to which defendant is not a party. Some authorities hold that a parol agreement in relation to real estate is neither illegal nor void under the law, but is simply a weapon of defense which the party entitled thereto may use or not use for his own *450 protection; but that statement of the law can have no application under our statute, which provides (Section 808, L. O. L.) that an agreement for a “leasing for a longer period than one year is void if not in writing, signed,” etc.; and section 804 is to the same effect as to the creation of or transfer of an interest in real property.

4. Nor is plaintiff’s case aided by the allegations of the answer, the strongest inference from which is not of an assignment of the leasehold, but a new and independent agreement with Huff. Therefore plaintiff failed to prove a case sufficient to be submitted to the jury.

5. (2) Plaintiff also urges that the nonsuit was improperly granted, because the motion therefor was insufficient, in that it did not specify any sufficiently definite and specific reason for a nonsuit. The form of the motion is: The defendant moves for a judgment of nonsuit, “for the reason that the plaintiff has not proven a sufficient case against the defendant, M. Van Valkenburgh, to be submitted to the jury.” This motion was submitted and considered at the hearing, without objection to its indefiniteness, and was sustained by the court. The ground of the motion relied upon by defendant was fully understood by counsel for plaintiff, as well as by the court, and the objection to it for insufficiency is raised here for the first time, and the objection is without merit. If the trial court had denied the motion, and defendants had appealed, the insufficiency of the form of the motion, as the basis of relief here, which was denied them in the lower court, could have been insisted upon, as held in Ferguson v. Ingle, 38 Or. 43 ( 62 Pac. 760 ). See, also, Milton v. Denver R. Co., 1 Colo. App. 307 , 311 ( 29 Pac. 22 ). It is held, in Fontana v. Pacific Can Co., 129 Cal. 51 ( 61 Pac. 580 ), that a motion for a nonsuit *451 is sufficient, although the grounds thereof are not specifically stated, if the defects of plaintiffs case are incurable, even if they had been specifically pointed out. To the same effect is Daley v. Russ, 86 Cal. 114 ( 24 Pac. 867 ), and the defect in plaintiffs case here is incurable; the evidence disclosing that there was no assignment of the lease.

6. The objection to the form of the judgment, namely, that it was a joint judgment in favor of both defendants, when the nonsuit in favor of John Van Valkenburgh was by consent of plaintiff, and that in favor of M. Van Valkenburgh was contested, is not well taken. We find that the form of the judgment is unobjectionable, under Sections 179 and 180, L. O. L., where it is contemplated that one judgment may dispose of the whole case, where it can consistently be done.

The judgment of the lower court is affirmed.

Affirmed.