This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Magennis v. MacCollogh, Gilb. Cas. 235.
2 Bolton v. Bishop of Carlisle, 2 H. Bl. 259; Walker v. Richardson, 2 Mees. & W. 882; Roe v. Abp. of York, 6 East, 86; Doe v. Thomas, 9 Barn. & C. 288; Rowan v. Lytle, 11 Wend. (N. Y.) 616; Ward v. Lumley, 5 Hurlst. & N. 88, and note in American edition.
3 Jackson v. Gardner, 8 Johns. (N. Y.) 394. 4 See post, §§ 59, 60.
§ 45. It will be observed that the language of the third section of the statute, providing for the assignment and surrender of estates in land, is general, and contains no express reservation in favor of short leases. It declares that "no leases," etc., "shall be assigned or surrendered unless it be by deed or note in writing." Proceeding upon the ground of this generality of language, the English courts have uniformly held that even such short terms as could, by the statute or otherwise, be created verbally, could not be assigned or surrendered without writing. This doctrine appears to have been first held at nisi prius in 1818, in the case of Botting v. Martin.1 It was argued that as a lease from year to year could be originally made without writing, there was no reason why it could not be assigned without writing, and that upon a comprehensive view of the three first sections of the statute it must be held that the requirements of the third section applied only to those estates which were covered by the first and second taken together. The decision of the court to the contrary is very briefly given, the report merely stating that, " Sir A. McDonald, C. B., held that the assignment was void for not being by deed or note in writing, and, therefore, nonsuited the plaintiff." In the following year, also at nisi prius, in Mollett v. Brayne, Lord Ellenborough ruled that a tenancy from year to year, created by parol, was not determined by a parol license from the landlord to the tenant to quit in the middle of a quarter, and the tenant's quitting accordingly; thus affirming the rule laid down in Botting v. Martin, but without entering into the reasons to support it.2 In Whiteheads. Clifford, a few years afterwards, in the Common Pleas, Gibbs, C. J., made the remark, that, "the clause of the Statute of Frauds which restricted estates created by parol to three years had nothing to do with that which required surrenders to be in writing;" but the case was determined upon another point than the efficacy of the verbal surrender.1 In the case of Doe v. Ridout, which was next decided in England, it was said that the lease "cannot be determined except by legal notice to quit, or legal surrender," and a parol surrender was clearly regarded as invalid.2 Thomsons. Wilson followed, where it was determined by Lord Ellenborough, at nisiprius, that a verbal agreement to determine a tenancy (but whether it was a parol lease or not the case does not show) in the middle of a quarter was, as a parol surrender, not binding.3 From a view of the foregoing cases there seems no room for doubt as to the prevailing doctrine in England on this question. At the same time, we must remark that they appear to have followed one another, upon mere authority, and that none of them, as reported, is put upon any other ground.4
1 Botting t;. Martin, 1 Camp. 317. But see Poultney v. Holmes, 1 Stra. 405; commented upon in Barrett v. Rolph, 14 Mees. & W. 348. 2 Mollett v. Brayne, 2 Camp. 103.
§ 46. In the American courts the point has several times arisen, and different conclusions arrived at in different States. In Pennsylvania (where the three first sections of the statute are re-enacted, with the exception of the clause in regard to rent reserved in the second section), Gibson, C. J., in delivering the opinion of the Supreme Court, very ably argues against the English construction as follows: "Why the legislature should have purposely contravened a common-law maxim by requiring a matter to be dissolved by writing, which they allowed to be created by verbality, it is for them who insist upon the distinction to explain. An intent to establish it would have been a legislative absurdity which is not lightly to be imputed. What greater mischief there can be in a verbal surrender or transfer than there is in a verbal constitution of a lease has not been shown, and it is not to be supposed that the legislature meant to establish a distinction without a reason for it. The apparent difference in the prescribed forms of constituting and surrendering arises from the generality of the words predicated by the latter, and ostensibly with leases written or unwritten, without discrimination. But that they were intended for the surrender or transfer of a lease in which writing was made a necessary ingredient, is evident from the fact that there is no purpose which requires writing in a surrender or transfer which does not equally require it in the act of constitution."1 In Greider's Appeal, the same court, upon the strength of this language, declared the law to be settled for Pennsylvania, that an oral surrender of a term for less than three years was good;2 but in neither of these cases was the point necessary to the decision. In the first, it was held that the facts showed a surrender by operation of law (which is expressly excepted by the statute), and in the second, the surrender was actually, as the opinion states, made in writing. In Connecticut, also, it seems to have been considered that a lease from year to year could be surrendered orally; but the report of the case in which this appears is somewhat obscure, and the decision is that there was no such surrender shown.3 The States of New York and Delaware have both followed, without discussion, the English construction;4 and, upon the whole, it must be admitted that the weight of authority is to the effect that, the statute itself being unqualified in this respect, no qualification is to be ingrafted upon it by construction or from the common law. The doctrine seems to stand upon the literal language of the third section, and to be, so far as reported cases show, without any distinct foundation in principle. In many of our States, where the law provides that leases must be surrendered by writing, the question has yet to be decided; for it is conceived that it is not necessarily connected with any statutory reservation of short leases, and that the English cases are not to be so limited; but that it may arise in regard to any lease which may be verbally created, whether at will, or from year to year, or for a term of years allowed by statute.1