TILLMAN v. FULLER.

occupancy on that day, and thenceforth for a year." Now, so far as this statement relates to the right of entry, it is, in form at least, but a statement of a legal conclusion; and no facts are given as the foundation for such a conclusion, except the contract previously stated, and the further fact that the premises were ready for his occupancy. But whether this be stated as a fact, or a conclusion of law, the right of entry, and the fact that the premises were ready for defendant's occupancy, are quite as consistent with a mere contract for a future letting, as with an actual demise. In fact, the right of entry is so general an incident of a contract for a lease, that it is sometimes stated generally, without qualification, that such agreement will operate as a license to enter upon the premises agreed to be demised.-Taylor's Landlord and Tenant, Sec. 37.

It further appears from the finding that, in fact, the defendant never entered into possession of the premises, nor used the same.

as

While, therefore, we think the Judge, by not properly distinguishing between a lease and an agreement for a lease, under the statute, erred in holding the agreement void because not in writing, it was not an error which operated to the prejudice of the plaintiff, no judgment in his favor was authorized by the facts found. This disposes of the case; but it may not be improper to intimate an opinion upon the question raised by the second assignment of error, which, we are inclined to think, must lead to the same result. The declaration is peculiar. It does not, we think, fairly allege a demise, or present letting, by the plaintiff, as claimed by his counsel. If the agreement was relied upon as a demise, there were but two proper modes of stating it: 1st. By its legal effect that the plaintiff did demise, let, or lease, etc.; or, 2d. By setting forth the agreement in such manner, as to show to the Court

13 MICH.-I.

TILLMAN v. FULLER.

that such was its legal effect. But the statement of the plaintiff's agreement is such, that it would be fully satisfied by proof of a mere agreement for a lease.

This is the whole consideration stated for the defendant's actual renting and hiring, as the declaration immediately proceeds to state that "the defendant, in pursuance, and in consideration of, the agreement, did actually rent and hire, of the said plaintiff, the said premises, for the period and at the rent aforesaid." This actual renting and hiring is not supported by the consideration stated, unless the agreement be so stated as to constitute a present demise. Yet it is this alleged renting and hiring by the defendant, which furnishes the only inference that the agreement on the part of the plaintiff was intended to be stated as a demise; but to give this any effect in supporting the statement of the agree ment as a demise, would be arguing in a circle. The declaration, after the words last quoted, proceeds: "And possession thereof was duly delivered to him by the said plaintiff, and by him held and enjoyed," etc., "by means whereof the said defendant became liable to pay to said plaintiff the said sum of, etc., in manner aforesaid; and being so liable, the said defendant undertook and promised," etc.

Now, as no actual tenancy-no relation of landlord and tenant is created by an actual demise, without entry, we think, by any fair construction, we must infer from this declaration, that the plaintiff did not intend to found his claims merely upon the agreement stated, whatever that agreement was; but in part, at least, upon delivery of possession, or the tenancy. No direct promise to pay is stated, except that which follows the statement of the tenancy, as in a declaration for use and occupation, and that promise is stated as being, in part at least, in consideration of the liability growing out of the delivery of possession in other words, out

TILLMAN v. FULLER.,

of the tenancy; and though the usual words, "in consideration thereof," are omitted, the whole context shows the effect was intended to be the same as if they had been inserted. This, therefore, as stated, is a part of the consideration alleged for the promise; and it is not a part which is idle, frivolous, or of no value, and which can, therefore, be rejected as surplusage.

Admitting, therefore, that a present demise is sufficiently alleged, this is still a case where the consideration is stated as consisting of two parts, each of which is material and pertinent, and but one of which has been proved; and though one of these considerations alone, had it been so alleged, would have been sufficient to sustain the promise, still it is a fatal variance, as it is not the consideration alleged. See 1 Chitty's

Pl., 327-328. The Judge was, therefore, correct in

holding that the plaintiff could not recover under this declaration, because the defendant never went into possession.

The judgment of the Circuit Court must, therefore, be affirmed, with costs.

MARTIN Ch. J. concurred.

CAMPBELL J.:

I think the declaration in this cause sets forth unequivocally an executed contract to lease, under which possession is alleged; and that the liability to pay rent is dependent, under the allegations, upon the completed lease and possession, which are not proved. The finding, I think, is of an executory contract only, and the breach of such a contract is failure to accept possession, and not failure to pay rent, in the absence of an independent promise or covenant. I concur in the general views of my brother Christiancy, and in the result at which he has arrived.

LAING 0. MCKEE.

Peter Laing v. Robert G. McKee.

Fraud in obtaining tar deed owner of land seeks relief conveyance decreed. -Defendant having purchased complainant's land at a tax sale, the latter, shortly before time for redemption expired, offered to pay him the amount of his bid, with twenty-five per cent. interest thereon, for assignment of the certificate of said sale, and defendant promised that he would send complainant an assignment of said certificate, and accept the amount of said bid and interest, within two or three days. Complainant, relying upon the defendant's promise, permitted the time for redemption to expire, after which defendant obtained a deed from the Auditor General, and upon a tender subsequently made to him, of the amount of his bid, with interest and charges, refused to accept the same, or to execute a deed of said land to complainant;- Held, That defendant's conduct, under the circumstances, was a fraud upon complainant, and that the latter was entitled to a decree against him for conveyance of said property.

Submitted January 4. Decided January 28.

Appeal in Chancery from Clinton Circuit.

The case is fully stated in the opinion of the Court.

S. L. Kilbourne, for complainant.

J. H. McKee and Hanchett & Lyon, for defendant.

COOLEY J.:

The bill of complaint in this case sets forth that complainant is the owner of a forty acre lot in Clinton county, which, at the annual tax sales, made in October, 1858, was sold to defendant for taxes delinquent for the year 1857, amounting to one dollar, forty-one cents; that complainant having a right to redeem from this sale sent the money for that purpose by one Treat to the office of the Auditor General, but that Treat, ascertaining that the sale was made to defendant, who was a neighbor of complainant, returned the money without redeeming, saying that he thought complainant could procure an assignment of the certificate of sale from defendant; that complainant called upon defendant for that purpose, who told him the certificate was then at Lansing, but he might send for and obtain it, and defendant would then assign it; that complainant sent and

LAING . MCKEE.

obtained it accordingly, and gave it to one Alval C. Laing, with a sum of money sufficient to pay defendant the amount of his bid, together with twenty-five per cent. interest thereon, and that said Alvah, in the latter part of September, 1859, took the same to defendant with a request that he should assign the certificate; that. defendant said he would do so, but could not do it then, owing to the absence of an officer to take the acknowledgment, but he would make and acknowledge the assignment, and in two or three days take it to complainant, and would then receive the money for the same, together with the expenses of the acknowledg

ment.

The bill further states that complainant believed and relied upon this assurance, and consequently allowed the time for redemption to expire without redeeming; but defendant, after the time to redeem had expired, surrendered his certificate and obtained from the Auditor General a deed, and that he now refuses on demand to receive the amount of the bid, with twenty-five per cent. interest and his costs and expenses in the premises, and convey to complainant: And the bill prays that he may be compelled to convey accordingly.

The case was heard on pleadings and proofs, and we think the evidence taken fully substantiates the material charges made by the complainant's bill. He is, therefore, entitled to the relief prayed unless the bill itself fails to make a sufficient case.

It is objected on the part of defendant that the agreement on his part was a parol contract in relation to lands, and therefore void under the Statute of Frauds, and that there has been no such part performance of it as will entitle complainant to have it specifically performed.

We do not think this case is to be put on the ground of specific performance solely. The facts charged and