This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A possessory right to realty is-an estate therein even if it may be thereafter adjudged to be inferior to the right of one claiming under paramount title. Accordingly a contract which deals with possessory rights is within the statute,1 and as squatter's rights2 or pre-emption rights,3 to specified realty, which are rights to hold possession as against all except the United States, and upon certain conditions to acquire legal title from the United States, and yet give neither legal nor equitable interests in the realty.4 So an oral contract whereby one in possession agrees to surrender possession to one who claims such realty if a pending case is decided in favor of such claimant is not a lease, but is a contract for the transfer of realty and hence within the statute.5 So a contract between grantor and grantee reserving to grantor possession of the realty conveyed until part of the purchase money should be paid is within the statute.6 So in jurisdictions where a mortgagee has the right of possession of the realty in question before breach of the condition an oral agreement that the mortgagor should retain possession is within the statute.7
18Storeh v. Harvey, 45 Kan. 39; 25 Pac. 220.
19 McClelland v. Rush, 150 Pa. St. 57; 24 Atl. 354.
20 Sheppard v. Rosenkrans, 109 Wis. 58; 83 Am. St. Rep. 886; 85 N. W. 199. (Decided under the Illinois statute, and distinguishing Kollock v. Scribner, 98 Wis. 104, as a case where the option was to "renew" or "extend" the old lease which was held to contemplate a new lease.)
21 Norton v. Gall, 95 111. 533; 35 Am. Rep. 173.
22Boderre v. Den, 106 Cal. 594; 39 Pac. 946; 'Talamo v. Spitzmiller, 120 N. Y. 37; 17 Am. St. Rep. 607; 8 L. R. A. 221; 23 N. E. 980; Thomas v. Nelson, 69 N. Y. 121.
1 Lester v. White, 44 111. 464: East Omaha Land Co. v. Hansen, 117 la. 96; 90 N. W. 705; Hayes v. Skidmore, 27 O. S. 331.
2 Hayes v. Skidmore, 27 O. S. 331.
3 Lester v. White, 44 111. 464.
A certificate from the government securing a certain amount of land to the holder is not within the statute as long as it is not located as a specific tract.8 When once located it becomes an interest in realty.9