CASSELL vs. COLLINS, 23 Ala. 676

GIBBONS, J. On the above stated facts ihe court below' charged the jury, that they must find for the defendant. The court, doubtless, gave this charge under the impression that the contract which the proof tended to establish was within our statute of frauds, and therefore void unless the same was in writing; and the question now presented is, whether said contract is within the statute of frauds or not. It will be observed that our statute, in its terms, is somewhat more restricted than that of the English statute.

The language of our act is, “or upon any contract for the sale of lands, tenements or hereditaments,” whilst the English statute has super-added the words or any “interest therein.” These latter words, it is conceived, render the statute much breader in its terms than it would be without them.

Hence it is, that a certain class of cases in England upon this statute, and in New York where the English statute has in terms been adopted, do not apply to cases in this State, as many contracts are clearly within the terms of those statutes (being for or concerning an interest in lands, tenements or hereditaments) which would not be within the terms of ours. This remark is particularly true of the case of Howard v. Easton, 7 Johns. 205, and of Kelly v. Webster, 10 Eng. Law and Equity R. 517. We need not now decide whether or not the case at bar falls within the influence of the cases of Frear v.

Hardenburgh, 5 Johns. 271, Lower v. Winters, 7 Cowen 263, and Benedict v. Becbee, 11 Johns. 145. In these latter cases it is held, that a contract respecting the improvements merely on land, irrespective of the soil or freehold, is not within the statute of frauds, even in New York. Such a contract is to bo considered rather as an agreement respecting work and labor done, than as a contract for the sale of lands or of an interest in them. Independent of these decisions, wo consider the present case to fall within the principle of the case of Scoggins v. Slater, at the last term of this court.

That was an action of assumpsit, brought to recover a sum of money agreed to be paid for certain improvements on lands. At the time of the contract the plaintiff had the lands and improvements in his possession, and on making the contract for the sale of said improvements the plaintiff put the said vendee in possession of said houses, &c., which he retained until his death. The contract was by parol, and it was insisted that it was within our statute of frauds; but this court decided otherwise, and held that the plaintiff could recover the sum agreed to be paid for said improvements by said contract.

In commenting upon this case, the Chief Justice remarks : “ This is not a contract for the sale of lands, and, in our opinion, is not obnoxious to the statute requiring such contracts to be in writing. Under our statute for the relief of tenants in possession, holding adversely a given time against dormant titles, it frequently may happen that the tenant is entitled to pay for his improvements, and the statute points out the mode in which he can recover. — Clay’s Dig. 320 § 47.

Now, if, instead of litigating the question, the parties agree on the value of the improvements, and the tenant surrenders them to the owner of the land on his promise to pay a given sum, we see no reason why he may not be entitled to recover the sum thus agreed to be paid.” This language wo consider equally applicable to the case at bar. Cassell, the plaintiff, is in the possession of certain premises as the tenant of Mealier, and of course holds adversely to the defendant.

The defendant, claiming to have recovered the premises in question by action at law, goes to the plaintiff and demands the immediate possession of said premises; this the plaintiff refuses to yield. The parties then commence a negotiation about the possession, which results in a contract, by which the plaintiff is to repudiate his tenancy to Meslier, attorn to the defendant, and pay him rent for the unexpired term for which he holds; and the defendant, in consideration thereof, agrees to pay to the plaintiff for his improvements made upon the lands as much as any two honest men should say they were worth.

This contract being parol merely, under the decisions of Howard v. Easton and Kelly v. Webster, supra, would be obnoxious to the English and New York statute of frauds, and could not be enforced ; but under our statute, as interpreted in the case of Scoggins v. Slater, supra, is not liable to that objection. Our conclusion, therefore is, that the court below erred in its charge to the jury; and the judgment is therefore reversed and the cause remanded.