Burford v. Tucker , 234 Ala. 503 ( 1937 )

The opinion is seriously challenged upon the ground that an instrument purporting to convey a leasehold interest in lands, for a longer term than one year, but fatally defective for want of adequate description of the premises, is void, and a void instrument cannot be ratified.

The argument proceeds on the idea that such case is not within the statute of frauds, and the instrument is void wholly apart from the statute of frauds.

Suffice to say the note or memorandum required under Code § 8034, subd. 5, calls for a description of the property, identification of the subject-matter, as one of the essential elements, without which the instrument is void under the statute of frauds. Alabama Mineral Land Co. v. Jackson,121 Ala. 172, 25 So. 709, 77 Am.St.Rep. 46.

The statute of frauds, by its express terms, declares such transaction void "unless the purchase money or a portion thereof be paid, and the purchaser be put in possession of the land by the seller."

This part performance, taking the transaction without the statute of frauds, is just as potent as the other provisions of the statute.

Again we are taken to task on the theory that a leasehold estate, including a mining lease, for a number of years, but resting in parol for want of a valid written instrument, creates a tenancy at will.

In answer to this argument, it will suffice to cite our cases for half a century holding such lease within the part performance clause of the statute of frauds. When a cash price, as well as a royalty, is stipulated for a mining lease running a number of years, and the lessee enters, opens the mine, pays royalties, and part of the cash price, he has a valid lease in equity for the stipulated term. Shakespeare v. Alba, 76 Ala. 351; Vinyard v. Republic Iron Steel Co., 205 Ala. 269, 273,87 So. 552; Jones v. Gainer et al., 157 Ala. 218, 47 So. 142, 131 Am.St.Rep. 52; Elliott v. Bankston, 159 Ala. 462,49 So. 76; Adams v. Riddle, 233 Ala. 96, 170 So. 343, 107 A.L.R. 657.

Application overruled.

ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.