¶1delivered the opinion of the court.
¶2By the statute of frauds, the estate in this case, being created by parol, had only the force and effect of an estate at will, (1 R. C. 1855, p. 806,) which is construed to operate as a tenancy from year to year. (Kerr v. Clark, 19 Mo. 132.)
¶3*404The theory of the defence which the defendant proposed to make is, that part performance of the parol contract took it out of the statute and entitled him in equity to a specific performance; but this proceeding was for an unlawful de-tainer, which was necessarily commenced before a justice of the peace, who had no power to inquire and decide whether the contract ought to be enforced and to give the equitable relief the defendant sought. If the defendant was entitled to have the parol agreement executed, his course was to have enjoined, in a court of competent jurisdiction, the proceedings before the justice until his equity could be determined.
¶4The judgment will be affirmed, with the concurrence of the other judges.