are

The position is taken by counsel for the defendant that a tenant going into pos. session under a void lease cannot be compelled to pay rent for any longer period than he actually occupies, and in support of that position the case of Thomas v. Nelson, 69 N. Y. 118, is relied upon, and the following syllabus of that decision is cited: "It seems that a parol lease, void under the statute of frauds because for a longer period than one year, is not valid for that period. If a tenant enters and occupies under it, he may be compelled to pay for the use and occupation, but cannot be compelled by virtue of the lease to pay for a longer period than he actually occupied." The facts of that case stated in the opinion. The plaintiff alleged a lease for seven years. On the trial he proved a memorandum made by him. self in which he stated that he was to give Mr. Nelson a lease of the building 271 Broadway for seven years, the first three years at $1,400 a year, and four years at $1,500 a year. It was said that the memorandum did not embody the contract between the parties, and was not intended to. It simply embraced the main features of the lease, and plainly indicated that a formal lease was subsequently to be executed embodying the agreement which the parties had made. The plaintiff was permitted to show a parol agreement for a lease of seven years, and the terms upon which the parties had agreed. The court ruled upon the trial below in his charge to the jury that such a lease, although invalid for a term of seven years, was valid for a term of one year. Under these rulings there was no exception, and Mr. Justice EARL., in delivering the opinion of the court of appeals, said: "While such a contract is void, yet if the tenant enters into and occupies he may be compelled to pay for the use and occupation of the premises, [citing authorities;] but it is difficult to perceive how such a con tract, declared to be void by the statute, can be held to be valid for a single hour. or upon what principle a tenant entering under a void lease could be compelled by virtue of the lease to pay for a longer period than he actually occupied." This probably is the language from which the syllabus was composed, but a further reading of the opinion will disclose that what the court meant by actual occupation was an occupation under the tenancy, and until it had been legally terminated; for in the next clause the court proceeds as follows: "In August the defendant moved away from the premises, and sent the keys of the house to the plaintiff in a let. ter, and they were not returned. He claimed upon the trial that the retention of the keys was an acceptance of the surrender of the premises. The plaintiff was not bound to seek the defendant, and tender the return of the keys. The court held that the mere retention of the keys, which were sent to him without his request or assent, did not amount to a surrender and acceptance, and in this there was no error." So that it plainly appears that a tenant at will, until the tenancy is legally terminated by notice, is bound to pay for the use and occupation, and that the

mere vacating of the premise term, or while the tenancy ex exonerate him from the pa use and occupation of the I the relation of landlord and gally terminated. The judgi affirmed. The other justices

WAIT V. DIX, Commis (Supreme Court of Michigan. SWAMP LANDS - RE-ENTRY-SCR STATUTE.

1. How. St. Mich. § 5249, that no lands reverting to the sta

non-compliance with the condition or homestead act shall be subject try, either with cash or scrip, un tion of such lands to the market claimed after certain notice, is n

pealed by Act Mich. 1883, No. 13 priates to a certain county 10,00 "not otherwise appropriated," in of the state, for the improvemen reason of the fact that the act of exceptions; and a homestead cl been forfeited, is not subject to act of 1883, until the restoration such forfeited land has been publi as required by How. St. Mich. S

2. The term "scrip," as us Mich. 8 5249-5252, respecting sv dicates the credit of land to whic who has assisted in draining t on the books of the land-office, a tificate, or other written evide

issued.

Mandamus by Alexand against the commissioner land-office. Denied.

C. H. Rose and Frank E. I Marston, of counsel,) for 1 Ellis, Atty. Gen., for respond

CHAMPLIN, C. J. The relat tition in this court prayin damus to compel the comm state land-office to issue to for the S. % of the N. W. town 38 N., range 3 W., si boygan county, Mich.; said portion of the land grante of Michigan under the act of proved September 28, 18 known as the "Swamp-Land particular parcel of land w the state by virtue of said ber 4, 1875. He alleges that has not been purchased fi and was on the 18th day 1890, and thence hitherto, t the state of Michigan; the 130, Sess. Laws 1883, the sta appropriated to the coun ston 10,000 acres of swamp la er Peninsula, not otherwise for the purpose of aiding in the channel of Cedar river widening, and deepening t petition states that, acting the county contracted wit W. Sparrow to perform sai upon his fulfilling his part o said county, in consideratio assigned, transferred, and s claims and rights to said land to said Sparrow, an the same. That upon Nove Sparrow sold, assigned, an

the relator the right to select and receive 80 acres of said land by a written instrument, in words and figures as follows: "For a valuable consideration, to me in hand paid, I hereby sell, assign, and set over to Alexander P. Wait, of Osceola county, Michigan, the right to select, under provisions of Act No. 130, Laws of 1883, eighty acres of state swamp land, not otherwise appropriated. EDWARD W. SPARROW. Dated ́Lansing, Michigan, November 17th, 1890." That upon the 18th day of November, 1890, the relator, in pursuance of said assignment, and complying in all respects with the provisions of law governing such applications, did select said above-described parcel, and request Roscoe D. Dix, state land commissioner, to issue to him a patent therefor under Act No. 130, Laws 1883; but said state land commissioner did, without legal excuse, upon the 22d day of November, 1890, absolutely refuse to issue to the relator any patent therefor; and he prays that a peremptory writ of mandamus may issue out of and under the seal of this court, commanding the said Roscoe D. Dix, state land commissioner as aforesaid, to issue 'forthwith to relator a patent for said above-described lands. The commissioner of the state lund-office filed his answer to said petition admitting the several allegations in the petition, down to and including the request for the issue of a patent, and his refusal to do so; but denies that his refusal was without any legal excuse, and says, in that behalf, "that said tract of land was offered for sale at public ven. due at the office of the commissioner of the state land-office on the 1st day of November, 1876, under the provisions of Act No. 97 of the Laws of 1869, the same being Howell's Statutes, sections 5444 to 5446, inclusive, as set forth in the petition of said petitioner, and hereinbefore admitted: and respondent, further answering, says that on the 24th day of October, 1878, said lot was licensed to Alexander Gero as a homestead under Act No. 229 of the Laws | of 1859 and amendments thereto, the same being Howell's Statutes, sections 5436 to 5441, inclusive; and respondent, further answering in that behalf, says that the title to the said lands revested in the state of Michigan on the 24th day of October, 1890, for the reason that Gero had wholly abandoned said lands as a homestead for the space of two years; and respondent, further answering, says that since the withdrawal of said lands for the benefit of said Gero, and since the reversion of said lands to the state of Michigan, as above set forth, the land has not been restored to market, as provided by Act No. 21 of the Laws of 1873, the same being Howell's Statutes, sections 5249 to 5253, inclusive; and that because said lands have not been restored to market, as provided by said act, they were not subject to private entry or purchase by the petitioner, or any other person; and that, therefore, the mandamus prayed in said petition ought not to issue.

Upon the hearing before us, other objections than those set up in the answer were urged as reasons why the relator is not entitled to the patent, based upon the lan

Be

guage of Act No. 130, and upon existin laws with reference to the disposition ( swamp lands. We do not consider thes objections tenable, and shall confine ou views to those set out in the answer. fore proceeding to the discussion, it i proper that we should define what i meant and understood by the term "scrip. This term has been used in the statute re specting the disposition of swamp lands but no legal definition or signification hai been expressed in the statute. It has beer the practice in the land-office of this state where lands have been appropriated or granted for the purpose of aiding in the drainage of swamp lands, whenever the contractor doing the work has so per formed any portion of it as to obtain its acceptance by the proper officer, and that officer has reported to the land-office, to credit the contractor upon the books of the office with the number of acres of swamp lands to which such performance entitles him under the contract, and this credit is what is termed “scrip," although no certificate or other written evidence of the right of the party is issued. The lands, not having yet been selected, cannot be described or identified, and, until such selection is made, this credit, called "scrip," has been considered as assignable, in whole or in part, to other parties, and they have made selections, and, when so made and entered, the lands so selected are charged to the contractor upon the books of the office. The sections of the statute referred to in the answer of the commissioner read as follows: "Sec. 5249. The people of the state of Michigan enact that all lands of this state, which have been withdrawn from market for any purpose, or withheld from sale or preemption, in consequence of errors in books, or in consequence of marking sales or reservations upon maps, and all lands which have reverted, or may hereafter revert, to the state by reason of a failure in any manner to make payment for the same, or by a failure to comply with the terms of any state road, railroad, or other grant or contract of this state, to or with any person or corporation, or by reason of a failure to comply with the conditions of any license or homestead act, shall not be subject to private entry or purchase, either with cash or scrip, until public notice of the restoration of such lands to market shall have been given in the manner hereinafter prescribed. Sec. 5250. The commissioner of the state land-office shall be required to advertise for four successive weeks, in a newspaper published in the county where such lands are situate, if there is one published therein, and, if not, then in some newspaper published in a county nearest to that in which lands are located, and shall also forward a written or printed notice by letter, mailed and properly directed to each settler and purchaser of lands held by him under any of the laws of the state, and included in the list so advertised, that at a time certain, at his office in the city of Lansing, nam. ing the day of the month and the hour, not less than thirty days from the date of the first insertion of such advertisement, the particular lands, giving the descrip