Изображения страниц
PDF
EPUB
[graphic]
[graphic]

The position is taken by counsel for the mere vacating of the premises defendant that a tenant going into pos. term, or while the tenancy exi session under a void lease cannot be com- exonerate him from the pay pelled to pay rent for any longer period use and occupation of the pi than he actually occupies, and in sup- | the relation of landlord and port of that position the case of Thomas gally terminated. The judgm v. Nelson, 69°N. Y. 118, is relied upon, and affirmed. The other justices the following syllabus of that decision is cited: “It seems that a parol lease, void under the statute of frauds because for a

WAIT v. Dix, Commiss longer period than one year, is not valid

(Supreme Court of Michigan. for that period. If a tenant enters and

SWAMP LANDS – RE-ENTRY - SORI occupies under it, he may be compelled to

STATUTE. pay for the use and occupation, but can

1. How. St. Mich. $ 5249, W not be coin pelled by virtue of the lease to

that no lands reverting to the sta pay for a longer period than he actually non-compliance with the condition occupied." The facts of that case are or homestead act shall be subject stated in the opinion. The plaintiff al. try, either with cash or scrip, un leged a lease for seven years. On the trial tion of such lands to the market is he proved a memorandum made by him. claimed after certain notice, is no self in which he stated that he was to give pealed by Act Mich. 1883, No. 130 Mr. Nelson a lease of the building 27]

priates to a certain county 10,000

üt not otherwise appropriated,” in Broadway for seven years, the first three

of the state, for the improvement years at $1,400 a year, and four years at reason of the fact that the act of $1,500 a year. It was said that the memo- exceptions; and a homestead cla randum did not embody the contruct be. been forfeited, is pot subject to tween the parties, and was not intended act of 1883, until the restoration t to. It simply embraced the main features

such forfeited land has been publi of the lease, and plainly indicated that a

as required by How. St. Mich. $!

2. The term “scrip,” as use formal lease was subsequently to be exe

Mich. $$ 5249–5252, respecting sw cuted embodying the agreement which dicates the credit of land to whic the parties bad made. The plaintiff was who has assisted in draining th permitted to show a parol agreement for on the books of the land-office, al a lease of seven years, and the terms up

tilicate, or other written eviden on which the parties had agreed. The

issued. court ruled upon the trial below in his Mandamus by Alexande charge to the jury that such a lease, al- against the commissioner though invalid for a term of seven years, land-office. Denied. was valid for a term of one year. Under C. H. Rose and Frank E. R these rulings there was no exception, and Marston, of counsel,) for r Mr. Justice EARI., in delivering the opin- | Ellis, Atty. Gen., for respond jon of the court of appeals, said: “While such a contract is void, yet if the tenant CHAMPLIN, C. J. The relat enters into and occupies he may be com- tition in this court prayin pelled to pay for the use and occupation damus to compel the commi of the premises, [citing authorities ;] but state land-office to issue to it is difficult to perceive how such a con for the S. % of the N. W.44 tract, declared to be void by the statute, tuwn 38 N., range 3 W., sit can be held to be valid for a single hour. boygan county, Mich.; said or upon what principle a tenant entering portion of the land granted under a void lease could be compelled by of Michigan under the act of virtue of the lease to pay for a longer pe- proved September 28, 18 riod than he actually occupied." This known as the “Swamp-Land probably is the language from which the particular parcel of land wa syllabus was composed, buta further read. the state by virtue of said ing of the opinion will disclose that what ber 4, 1875. He alleges that t the court meant by actual occupation has not been purchased fr was an occupation under the tenancy, and and was on the 18th day until it had been legally terminated; for ( 1890, and thence hitherto, th in the next clause the court proceeds as the state of Michigan; tha follows: “In August the defendant moved 130, Sess. Laws 1883, the stat away from the premises, and sent the appropriated to the coun keys of the house to the plaintiff in a let.ston 10,000 acres of swamp la ter, and they were not returned. He er Peninsula, not otherwise claimed upon the trial that the retention for the purpose of aiding in of the keys was an acceptance of the sur-| the channel of Cedar river, render of the premises. The plaintiff was widening, and deepening ti not bound to seek tbe defendant, and ten petition states that, acting der the return of the keys. The court held the county contracted with that the mere retention of the keys, which w. Sparrow to perform said were sent to himn without his request or upon his fulfilling his part of assent, did not amount to a surrender said coupty, in cousideration and acceptance, and in this there was uo assigned, transferred, and se error.” So that it plainly appears that a claims and rights to said tenant at will, until the tenancy is legally land to said Sparrow, and terminated by notice, is bound to pay for the same. That upon Nove the use and occupation, and that the Sparrow sold, assigned, and

[ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][merged small][merged small][merged small]

the relator the right to select and receive guage of Act No. 130, and upon existing
80 acres of said land by a written instru- laws with reference to the disposition of
ment, in words and figures as follows: swamp lands. We do not consider these
“For a valuable consideration, to me in objections tenable, and shall confine our
hand paid, I hereby_sell, assign, and set views to those set out in the answer. Be
over to Alexander P. Wait, of Osceola fore proceeding to the discussion, it is
county, Michigan, the right to select, un proper that we should define what is
der provisions of Act No. 130, Laws of 1883, meant and understood by the term “scrip.
eighty acres of state swamp land, nototh: This term bas been used in the statute re.
erwise appropriated. EDWARD W. SPAR- specting the disposition of swamp lands,
ROW. Dated Lansing, Michigan, Novem. but no legal definition or signification has
ber 17th, 1890.” That upon the 18th day been expressed in the statute. It has been
of November, 1890, the relator, in pur. the practice in the land office of this state,
suance of said assignment, and complying where lands have been appropriated or
in all respects with the provisions of law granted for the purpose of aiding in the
governing such applications, did select drainage of swamplands, whenever the
said above-described parcel, and request contractor doing tbe work has so per.
Roscoe D. Dix, state land commissioner, formed any portion of it as to obtain its
to issue to him a patent therefor under acceptance by the proper officer, and that
Act No. 130, Law, 1883; but said state officer has reported to the land-office, to
land commissioner did, without legal ex- credit the contractor upon the books of
cuse, upon the 22d day of November, 1890, the office with the number of acres of
absolutely refuse to issue to the relator swamp lands to which such performance
any patent therefor; and he prays that a entitles biin under the contract, and this
peremptory writ of mandamus may issue credit is what is termed “scrip," although
out of and under the seal of this court, no certificate or other written evidence of
commanding the said Roscoe D. Dix, state the right of the party is issued. The

land commissioner as aforesaid, to issue | lands, not having yet been selected, can-
· forthwith to relator a patent for said not be described or identified, and, until
above-described lands. Thecommissioner such selection is made, this credit, called
of the state lund-office filed his answer to “scrip," has been considered as assigna-
said petition admitting the several allega- ble, in whole or in part, to other parties,
tions in the petition, down to and include and they have made selections, and,
ing the request for the issue of a patent, when so made and entered, the lands so
and his refusal to do su; but denies that selected are charged to the contractor
his refusal was without any legal excuse, upon the books of the office. The sections
and says, in that behalf, " that said tract of the statute referred to in the answer of
of land was offered for sale at public ven. the commissioner read as follows: "Sec.
due at the office of the commissioner of 5249. The people of the state of Michigan
the state land-office on the 1st day of Nu-enact that all lands of this state, which
vember, 1876, under the provisions of Act have been withdrawn from market for
No. 97 of the Laws of 1869, the same being any purpose, or withheld from sale or pre-
Howell's Statutes, sections 5414 to 5446, in- | emption, in consequence of errors in books,
clusive, as set forth in the petition of said or in consequence of marking sales or reser-
petitioner, and hereinbefore admitted; vations upon maps, and all lands which
and respondent, further answering, pays have reverted, or may hereafter revert, to
that on the 24th day of October, 1878, said the state by reason of a failure in any
lot was licensed to Alexander Gero as a manner to make payment for the same, or
homestead under Act No. 229 of the Laws | by a failure to comply with the terms of
of 1859 and amendments thereto, the same any state road, railroad, or other grant
being Howell's Statutes, sections 5436 to or contract of this state, to or with any
5441, inclusive; and respondent, further person or corporation, or by reason of a
answering in that behalf, says that the failure to comply with the conditions of
title to the said lands revested in thestate any license or homestead act, shall not be
of Michigan on the 24th day of October, subject to private entry or purchase, either
1890, for the reason that Gero had wholly with cash or scrip, until public notice of
abandoned said lands as a homestead for the restoration of such lands to market
the space of two years; and respondent, shall have been given in the manner here-
further answering, says that since the inafter prescribed. Sec. 5250. The coinmis.
withdrawal of said lands for the benefit siuner of the state land-office shall be re-
of said Gero, and since the reversion of quired to advertise for four successive
said lands to the state of Michigan, as weeks, in a newspaper published in the
above set forth, the land lias not been re. county where such lands are situate, if
stored to market, as provided by Act No. there is one published therein, and, if nut,
21 of the Laws of 1873, the same being then in some newspaper published in a
Howell's Statutes, sections 5249 to 5253, county nearest to that in which lands are
inclusive; and that because said lands located, and shall also forward a written
bave not been restored to market, as pro- or printed notice by letter, mailed and
vided by said act, they were not subject to properly directed to each settler and pur-
private entry or purchase by the petition. chaser of lands beld by him under any of
er, or any other person; and that, there- the laws of the state, and included in the
fore, the mandamus prayed in said peti. list so advertised, that at a time certain,
tion ought not to issue.

at his office in the city of Lansing, nam. Upon the hearing before us, other objec-ing the day of the month and the hour, tions than those set up in the answer were not less than thirty days from the date of urged as reasons why the relator is not en- the first insertion of such advertisenient, titled to the patent, based upon the lan- the particular lands, giving the descrip

Robson, la celator. 44 Jent.

tor filed bis ng for a 11 issioner do

bim a psa

of seint ituated in a 1 land beat ed to the sun of contra 30, poor d Grant' D vas patente id act op die t the said pes from the

of Noregy the property hat DFA

tate of Vieta unts of La

land in the L se appropria in straighte. er, and opera

the same 19 undereai's with one Edo. said work. EX to the custre tion thered some d set orer." aid 10, ser and he note ovember 11, and set orci

[graphic][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed]
« ПредыдущаяПродолжить »