Alexander v. Morris, 145 N.C. 22 (1907)

Sept. 11, 1907 · Supreme Court of North Carolina

145 N.C. 22

DORA S. ALEXANDER v. LULA MORRIS.

(Filed 11 September, 1907).

1. Lessor and Lessee — Parol Assignment — Statute of Frauds.

A verbal assignment of an unexpired lease of land, to terminate more than three years from tbe date of tbe assignment, is void under tbe statute of frauds.

2. Same — Evidence—Lease—Assignment—-Endorsement.

An endorsement upon tbe written assignment of a lease, “We hereby transfer all our rights and title and interest in this lease,” etc., means tbe original lease referred to and fully described therein.

Civil actior to recover possession of a leasehold, tried before 17. B. Allen, J., and a jury, at Spring Term, 1907, of TYRRELL Superior Court. The Court adjudged, upon the facts agreed, that plaintiff was not entitled to recover. ■ Plaintiff appealed.

J. E. Alexander and ill. Majeile for plaintiff.

17. M. Bond for defendant.

Rrowal J.

The property in controversy was leased for eight years, beginning on 2 January, 1900, to Mrs. E. E. Cohoon, wife of E. P. Cohoon. On 30 July, 1903, E. E. Cohoon and husband duly assigned the lease to Abner Alexander, with a proviso that if Alexander should die before the expiration of the lease the property should return to Mrs. Cohoon for the remainder of the lease. Alexander died 8 April, 1904, and on 30 August, 1904, Dora S. Alexander, the plaintiff, took from Mrs. Cohoon a verbal assignment of the unexpired term. On 23 July, 1906, F. E. Cohoon and her husband executed to the plaintiff a written assignment of the lease.

It appears, however, that on 21 May, 1906, F. E. Cohoon delivered to the defendant the written assignment of the lease which had been made to Abner Alexander on 30 July, 1903, with the following endorsement: “We hereby transfer all our right and title and interest in this lease tó Lula Morris.” This is dated 21 May, 1906, and is signed “F. E. Cohoon, per E. P. Cohoon, agent.” It is admitted that the latter was the general agent for his wife, and that by virtue of such assignment defendant was in possession of the property.

The verbal assignment of the lease made to plaintiff was absolutely void, because, at the date thereof, 30 August, 1904, the lease had more than three years to run, and, therefore, such an interest in land could only have been assigned in writing. Eevisal, sec. 976. At the time of the written conveyance, dated 23 July, 1906, made by Mrs. Cohoon and husband to plaintiff, they had, on 21 May, 1906, assigned the unexpired term to defendant. As there was then only about nineteen months of the term remaining, it required no deed under seal or privy examination to effect a conveyance thereof. It could be assigned by parol. It is admitted that E. P. Cohoon Avas the general agent of his Avife in the management of her property, and his authority to act for his wife is not. contested. Under and by virtue of this assignment defendant has remained in possession of the leasehold estate up to this, time.

We cannot agree that the assignment is invalid because not Avritten on the original lease. The paper upon which it was. written referred to and fully described tbe lease and tbe property, and in using tbe words “this lease” in tbe assignment tbe assignors plainly meant tbe original lease executed to Mrs. Ooboon by Winston Sikes. Upon tbe facts agreed we concur with bis Honor that plaintiff is not entitled to recover.

Affirmed.