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.
§ 18. The first section of the English Statute of Frauds is sufficiently comprehensive in its language to embrace the creation of all possible estates in land, from the greatest to the least. But, as has been suggested heretofore, its object was not to dispense with, but to superadd, solemnities in their creation; and hence, as all freehold and all incorporeal estates were at common law required to be created by deed, and so were already provided for, the first section may be regarded as contemplating only those estates in land which might, up to the time of the statute, have been created verbally; namely, corporeal estates less than freehold, the creation of which is commonly said to be by lease. Whether it might not be necessary to restrict the application of the first section still farther, was a question in the case of Crosby v. Wadsworth, where a verbal agreement was made for the purchase of a standing crop of mowing grass, with liberty for an ndefinite time to the purchaser to enter and take the grass. Lord Ellcnborough said that, construing the first and second sections together, the former should be held to embrace only those leases which were for a longer term than three years, but still under a rent reserved upon the thing demised, and that the agreement in the case before him, not containing either of these features, was not vacated as a lease.1 The decision was upon another ground, however, and it must be doubted whether the suggestion was well considered. Sir A. McDonald, C. B., only three years afterwards, seems to have entertained no such view of the mutual relation of the first three sections; for, when it was argued that by the leases mentioned in the third section as to be assigned by writing only must be intended such leases as by the first and second sections could be created by writing only, namely, those conveying a larger interest than three years, he rejected that construction, and held that the lease in question, though created verbally, could be assigned only by writing.1 Sir Edward Sugden shows very clearly that to confine the first section to leases upon a rent would lead to inadmissible conclusions;2 and it may be added that if we take into consideration the whole language of the second section, as consistency requires that we should do, we must confine the statute to leases upon such a rent as is equal "to two-thirds of the full improved value of the thing demised;" a construction which would render the statute almost wholly inoperative, as it regards leases. In a subsequent part of this chapter3 we shall have occasion to consider what practical effect this second section of the English statute, and kindred enactments in our own country, have had upon the law of leases.
1 Crosby v. Wadsworth, 6 East, 610. See § 244, post.
§ 19. Confining ourselves, then, to the first section of the English statute, the first inquiry which presents itself is, - What is a lease of land within the meaning of its provisions? It is obvious that for the most part, and in the common cases of letting land, the inquiry is one upon which no great difficulty can arise. But the Statute of Frauds descends in this respect to very minute, and, so to speak, indistinct interests in lands; and in regard to these, questions of much nicety may occur.
§ 20. The relation of landlord and tenant must, of course, in all cases be distinctly found to exist, whether the interest acquired in the premises be great or small. Merely giving permission to a tenant, who has been duly notified to quit, to remain on the premises till they are sold, does not amount to a new lease to him, so as to entitle him to any term of notice afterwards.1 Nor does an agreement to pay an increased rent, in consideration of repairs, amount to a lease, but it may be proved verbally.2 Nor does an agreement, whereby the owner of land is to have the help of another in cultivating it, paying, in return, a share of the crop, constitute a lease. But if an agreement is made by the owner, whereby another is to possess the land, with the usual privileges of exclusive enjoyment, a tenancy in the land will be created, although the rent is to be paid out of the crop produced.3 An agreement to provide board and lodging is not a lease and does not require a writing, even though the particular rooms to be occupied be designated.4 An actual lease of certain rooms comes within the statute.5 To make the transaction a lease, it is necessary that the party hiring should acquire thereby such privileges of exclusive enjoyment and control of the rooms as to amount to an interest in the realty; therefore the agreement ordinarily made with the keeper of a hotel or boarding-house does not fall within the statute; the proprietor, in those cases, retaining the general property, control, and care of the premises which the guest is to occupy.1
1 Botting v. Martin, 1 Camp. 317. 2 Vend. & P. 95. 3 §§ 21, et seq.
1 Whiteacre v. Symonds, 10 East, 13. See Hollis v. Pool, 3 Met. (Mass.) 350.
2 Hoby v. Roebuck, 7 Taunt. 157; Donellan v. Read, 3 Barn. & Ad. 899. But see Crawford v. Wick, 18 Ohio St. 190.
3 Creel v. Kirkham, 47 111. 344; Wilber v. Sisson, 53 Barb. (N. Y.) 258; Guest v. Opdyke, 31 N. J. L. 552. See Warner v. Abbey, 112 Mass. 355. In Pennsylvania, where the statute as it relates to contracts has not been adopted, verbal contracts for the sale of interests in land, appear to have been, in some measure, brought within the range of the first section, so as to forbid a decree for their specific execution, though actions for damages for the breach of them may be maintained; the decree in the former case having the effect to transfer land on verbal evidence of title, but the judgment in the latter case resting only in pecuniary damages. Treat v. Hiles, 68 Wise. 344.
4 Wright v. Stavert, 2 El. & E. 721; Wilson v. Martin, 1 Denio (N. Y.) 602; White v. Maynard, 111 Mass. 250. In Johnson v. Wilkinson, 139 Mass. 3, the same rule was applied to the hiring of a hall for dancing parties on certain days.