Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-20
Culver Y. Van Yalkenburgh and Van
Valkenburgh, Coos County.
Decided, January 9, 1912.

Culver V. Van Yalkenburgh and Van
mlkenburgh, Coos County.
Decided. January 9, 1912
S. ]. Culver, appellant, V. NJ. Van
valkenburgh and John Van valken-
burgh, respondents, Appeal from
Coos county. The Hon. John S.
Coke, Judge. Argued and submitted
Dec. 21, 1911. A. NJ Crawford &c. T.
lTreadgold, on briefl for appellant.
A ]. Sherwood and L. A. Liljeqvist,
on brief, for respondents. Bakin, G.
~. Affirmed.
On September 1, 1907, plaintiff exc
cuted to S. j. Huff lease, to certain
lands for the term of five years,
which contained mutual covenants
and Huff entered upon the premises
Hereunder On April 1, 1908, he
orally assigned and transferred his
interest in the premises under the
lease to defendant M. Van Valkeu-
burgh, who entered thereon and oc-
cupied the same until June 5, 1909,
when she transferred them to one
Lane, whereupon plaintiff commenced
this action against her to recover
damages in the sum of $500 for
breach Of the terms Of the lease. It
it also alleged that the assignment
of the lease was in writing, although
the evidence is undisputed that it
was oral.
The execution of the lease and its
assignment to defendants are denied
by the answer, but defendant M.
VanValkenburgh admits that she en-
tered into the possession of the prem
ises under an agreement with Hun
and that she occupied the same
hereunder from April, 1908, to June,
1909, and sets forth other defenses
to the damages alleged.
The case was tried before a jury
and at the close of plaintiffs evil
dence, a judgment Of nonsuit was
granted ON the motion of defendants
and plaintiff appeals.
Eakin, C. ]. But two of the assign
ments of error need be considered
~ AS to the effect of the oral trans
fer by Huff to defendant M. VanVal-
, kengurgh of his lease-hold interest in
the premises. Tiffany, on Landlord
and Tenant, p. $50, states that, for
, the purpose of enforcing the pay
} ment of rent, person, other thar
the lessee, found in possession o.
the promises will be prima facie pre-.
sumed to be in possession as rs.
signee of the lease-hold, which pre-
/ sumption may be rebutted by evi
: dence that there was no actual as
d signment or that he is a sub-lessee
; in which latter case he is not liabl
q to the landlord on the covenants o
r the original lease. His liability is upol
: the covenants of the sub-lease and Il
his lessor only. But, in order tina
a one may be liable on the covenants
g as an assignee of the lease-hold
9 there must be legal assignment Il
I him. 1t is not sufficient that he b,
q in possession. Under the statute o
r this state (Sec. S08 l.. o. L.) no es
: tate or interest in real property cal
be created or transferred except 1t b.
in writing signed, etc., which in
cludes an assignment Of a lease-hol,
interest in lands for term Of NOR
than one year. The contention 0
plaintiff, that the assignment beinl
oral will be construed to be a ten
ancy from year to year, can have n
application to the liability of the de
fendant for damages for breach o
the covenants of written lease; no
does part performance take the cas-
r out of the statute Of frauds, such re
i lief heing cognizable in equity for tn
. purpose Of obtaining specific perfor
nance, and has no application in al
It action for damages for breach of GOV
e enant in a contract to which defen
: dant is not a party.
Some authorities hold that a paro
u agreement in relation to real estat
Il is neither illegal nor void, under tn
v law, but is simply a weapon of de
1, fense which the party entitled there
n to may use or not use for his ow
. protection; but that statement of th
! law can have no application unde
i our statute, which provides (Sec. so
s. L. o. ~ that an agreement for
% leasing for longer period than on
= year is void if not in writing, signed
,s ETC., and Sec. S04 is to the same ei
Ie' feet as to the creation Of or transfc
, of an interest in real property No
is plaintiffs case aided by the ALE
cations of the answer, the stronges
s. inference from which is not of an az
u signment of the lease-hold but ne
: and Independent agreement wit
N HUFF. Therefore, plaintiff failed I
ID prove "a case sufficient to be submit
i ted to the jury.