§ 1204. The Statute of Frauds, 29 Car. II. ch. 3, in its first section, provides that all leases, estates, interests in freehold or terms of years, etc., made or created by livery of seisin only or by parol, and not put in writing and signed by the parties or their agents thereto lawfully authorized by writing, shall have the force and effect of leases or estates at will only.
§ 1205. The second section of the same statute excepts all leases, not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount to two-thirds part of the full improved value of the thing demised.
§ 1206. This statute, which has been generally adopted in this country, renders every parol lease for more than three years from the agreement inoperative.1 But an oral lease, not exceeding three years, is valid, and the landlord may recover the rent, although the tenant refuses to enter.2 Although
1 The Massachusetts Revised Statutes, p. 408, declare all estates and interests in lands, created without writing, to be estates at will only. Kelly v. Waite, 12 Met. 300. So in Maine, Withers v. Larrabee, 48 Me. 570. By the New York Revised Statutes, vol. ii. p. 135, § 8, all estates and interests in lands, except leases for a term not exceeding a year, must be in writing. By the Statutes of Connecticut, 1838, p. 391, no leases of land, except for a year, are valid, except against the grantor unless they be in writing. The Pennsylvania statute of 1772 follows the English statute, and allows parol leases for a term not exceeding three years, without adding any thing as to reservation of rent. Purdon's Dig. 779. In other States, as New Jersey, Georgia, etc, the English statute is strictly followed. Elmer's Dig. 213; Prince's Dig. 215; 4 Kent, Comm. 95, note b.
2 Birckhead v. Cummins, 4 Vroom, 44 (1868); Bolton v. Tonilin, 5 parol leases for more than three years have, by the statute, the effect of leases at will only, yet, in consequence of the inconveniences attending such a tenancy, and in view of the intent of the statute, which was only to prevent such leases from operating as a term, the courts have, after considerable embarrassment, expressly decided that the tenancy at will, created by the English statute, should be considered as a tenancy from year to year.1 Indeed, estates at will are at the present day almost unknown in practice, although they may be created by special agreement;2 and all leases, without limit as to the period of holding, create a tenancy from year to year.3 A person who goes into possession under a contract to purchase is tenant at will to the owner.4
§ 1207. A parol lease for three years must commence immediately upon the making of the agreement, and cannot be made to commence from a subsequent day.5 A parol lease for less than three years may, however, commence at any future day; provided that the term of the lease expire within three years.6 Where a parol demise was made to hold for one year certain, and so from year to year, as long as the parties pleased, it was held to be a lease for only two years certain, and therefore to be valid, within the terms of the statute.7
§ 1208. But although a parol lease for more than three years may be void as to the duration of the term, it will govern the terms of the tenancy from year to year in all other respects; as in regard to the rent and to the time at which the tenant is to quit. Thus, where, on a lease by parol for seven years, it was agreed that the tenant should quit at Candlemas, the court held that, though the lease was void as to the duration of the term, the tenancy could only be determined by the landlord at Candlemas.1
Ad. & El. 856; Inman v. Stamp, 1 Stark. 12; Edge v. Strafford, 1 C. & J. 391, explained in 4 Vroom, 53.
1 Clayton v. Blakey, 8 T. R. 3; Doe dem. Rigge v. Bell, 5 T. R. 471; Comyn on Landlord and Tenant, 8-57. In Massachusetts the statute is to the contrary. See Kelly v. Waite, 12 Met. 300.
2 Partridge v. Bere, 5 B. & Ald. 604; s. c. 1 Dowl. & Ry. 272; 2 Black. Coram. 147; Timmins v. Rowlinson, 3 Burr. 1609.
3 Legg v. Strudwick, 2 Salk. 414; Timmins v. Rowlinson, 3 Burr. 1609; Warner v. Browne, 8 East, 165; Comyn, Landlord and Tenant, 8.
4 Gould v. Thompson, 4 Met. 224; Towne v. Butterfield, 97 Mass. 106 (1867).
5 Rawlins v. Turner, 1 Ld. Raym. 736.
6 Ryley v. Hicks, 1 Str. 651; Legg v. Strudwick, 2 Salk. 414.
7 Legg v. Strudwick, 2 Salk. 414; Stomfil v. Hicks, Ib. 413; 8. c. 1 Ld. Raym. 280.
§ 1209. The exception in the statute does not, however, apply to the king; for he can only grant leases by patent under the great seal, or seal of the exchequer.2 Nor does it apply to corporations aggregate, who can only lease under the corporate seal.3 So also a lease of the wife's lands by the husband and wife must be by deed, or it will be absolutely void, and cannot be confirmed by the wife after the husband's death; because her assent is necessary ab initio, and must be by deed.4
§ 1210. It often becomes a matter of great practical importance to ascertain when an instrument operates as an immediate demise, or only an agreement to let in futuro. No precise technical form is necessary to create an immediate demise. Nor is it necessary that it should be created by a single instrument, if from different papers it can cledrly be inferred.5 An indenture by which W. "hereby leases and devises" to C. "for the term of ten years" a part of a mill, the rent to commence on the first day of January next, is a lease and not an agreement for a lease, although the term is to commence in futuro.6 Whether the instrument constitute a present demise or an agreement to let in futuro depends upon the intention of the parties, which is to be inferred considered as an executory agreement.1 But if no such stipulation be made, or if, although such stipulation be made, the lessee is nevertheless to have the immediate right of entry, and is to pay rent forthwith, and the commencement and duration of the tenancy is fixed, the instrument will be considered as an immediate demise.2 But where a forfeiture would accrue from construing the instrument as a lease, it will be construed to be only an agreement for a lease.3 An instrument void as a lease, because not under seal as required by a statute, may nevertheless enure as a valid agreement for a lease.4
1 Doe dem. Rigge v. Bell, 5 T. R. 471; De Medina v. Poison, Holt, N. P. 47. See King v. Woodruff, 23 Conn. 56; Larkin v. Avery, Ib. 304.
2 Lane's Case, 2 Co. 17.
3 Patrick v. Balls, Carth. 390; s. c. 1 Ld. Raym. 136.
4 Turney v. Sturges, Dyer, 91. This case was before the Statute of Frauds.
5 Chapman v. Bluck, 5 Scott, 531; Moore v. Miller, 8 Barr, 272.
6 Weed v. Crocker, 13 Gray, 219 (1859). T. makes a lease to C. for the term of five years, and covenants and agrees with C, his executors and administrators, that C, his heirs, executors, and administrators, shall have the right to occupy and let or use and take the income of the premises for and during the further term of five years from the thirtieth day from all the terms, and from the nature and condition of the subject-matter, without reference to extrinsic circumstances or subsequent acts.1 Yet, if the terms be ambiguous, the act of the parties,2 or words which have been erased,3 or any circumstances of inconvenience or convenience,4 may be resorted to, as a means of ascertaining such intention. In all cases, the intention of the parties, if it can be ascertained, is the sole criterion of the nature of the instrument; and although an agreement may in one part purport to be a lease, yet if, from the whole instrument, it clearly appear to have been intended only as an executoiy agreement for a future lease, it will be so construed.5
§1211. Subsidiary to this intention, which is paramount whenever it can be ascertained, the rule of interpretation is that if, by the terms of the agreement, it be provided that a lease shall be executed at a future time, or that any act or thing shall be done by either party precedent to the entry of the tenant upon the premises demised, the instrument is to be after the decease of T., and T. agrees to make suitable provision by will or otherwise that this agreement shall be kept and performed by his legal representatives. Held, that the agreement for the further term was not a present demise. Weld v. Traip, 14 Gray, 330 (1859).
1 Doe v. Powell, 7 Man. & G. 980.
2 Chapman v. Bluck, 5 Scott, 531; 4 Bing. N. C. 187; Doe v. Ries, 8 Bing. 181; 1 M. & S. 264; Jones v. Reynolds, 1 Q. B. 511; Doe v. Benjamin, 9 Ad. & El. 644; Rawson v. Eicke, 7 Ad. & El. 451.
3 Strickland v. Maxwell, 2 C. & M. 539; 4 Tyrw. 346.
4 Morgan d. Dowding v. Bissell, 3 Taunt. 65.
5 Doe v. Powell, 7 Man. & G. 980; Poole v. Bentley, 12 East, 168; Doe v. Smith, 6 East, 531; Morgan d. Dowding v. Bissell, 3 Taunt. 65; Tempest v. Rawling, 13 East, 18; Colley v. Streeton, 3 D. & R. 522; 2 B. & C. 273; Chapman v. Bluck, 4 Bing. N. C. 187; Brashier v. Jackson, 6 M. & W. 551; s. c. 8 Dowl. 784; Perring v. Brook, 7 C. & P. 360; Pearce v. Cheslyn, 4 Ad. & El. 225; Bird v. Higginson, 6 Ad. & El. 824; Rawson v. Eicke, 7 Ad. & El. 454; Doe v. Benjamin, 9 Ad. & El. 644; Jones v. Reynolds, 1 Q. B. 506. A covenant in a lease giving to the lessee the right to purchase the premises leased at any time during the term is a continuing offer to sell, and if under seal is regarded as made upon sufficient consideration, and therefore one from which the lessor is not at liberty to recede. When accepted by the lessee, a contract of sale is completed. Willard v. Tayloe, 8 Wall. 557 (1869). As to a covenant for a renewal, see Ranlet v. Cook, 44 N. H. 512 (1863).
1 Poole v. Bentley, 12 East, 168; Dunk v. Hunter, 5 B. & Ald. 322; Phillips v. Hartley, 3 C. & P. 121; Clayton v. Burtenshaw, 5 B. & C. 41; 7 D & R. 800; Chapman v. Bluck, 4 Bing. N. C. 187; Doe v. Foster, 15 Law J. C. P. (n. 8.) 263; Clarke v. Moore, 1 Jones & Lat. 723.
2 Jenkins v. Eldredge, 3 Story, 330; Doe v. Groves, 15 East, 244; Comyn on Land, and Ten. 71; Chapman v. Bluck, 5 Scott, 531; Alderman v. Neate, 4 M. & W. 721; Warman v. Faithfull, 5 B. & Ad. 1042; 8. C.3N.& M. 137; Pinero v. Judson, 3 M. & P. 497; 6 Bing. 206; Doe v. Ries, 8 Bing. 178; 1 M. & S. 264; Doe v. Clarke, 7 Q. B. 211.
3 Fenny v. Child, 2 M. & S. 255.
4 Tidey v. Mollett, 16 C. B. (N. S.) 298 (1864), overruling Stratton v. Pettit, 16 C. B. 420. See, also, Bond v. Rosling, 1 B. & S. 371; Rollason v. Leon, 7 H. & N. 73; Parker v. Taswell, 27 Law J. Ch. 812; Hayne v. Cummings, 16 C. B. (n. s.) 421 (1864).