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.
§ 32. The second section of the statute, which saves certain descriptions of short leases from its operation, does not seem to have been precisely presented for consideration in any English case, though it would be too much to say, as has been said by high authority, that the English decisions have not alluded to it at all.1 There are many instances in which the courts have paid attention to that clause of it which prescribes three years as the maximum duration of such leases; but, strange to say, they have to all appearance wholly disregarded the next and qualifying clause, which provides that those short leases only shall be excepted "whereupon the rent reserved to the landlord during such term shall amount unto two-third parts at the least of the full improved value of the thing demised."2 Indeed in one instance a verbal lease was upheld by Chief Justice Raymond solely (according to the report) on the ground that its duration was limited to three years, as prescribed by the second section, while there is nothing in the case to show that the rent reserved amounted to two thirds of the value of the demised premises.3 That it was the intention of the parliament which enacted this section that the validity of verbal leases should depend entirely upon their limitation to three years from the making cannot, of course, be supposed; as they explicitly added another requisite. As is remarked by Sir Edward Sugden, the whole section seems to have been inserted under the impression that such a short lease, at nearly rack rent, would not be a sufficient temptation to induce men to commit perjury;1 and, accordingly, we should not expect to see any such case brought before the courts, if the second section were construed according to its language and clear import. This section has been literally re-enacted in only a few States, and in consequence has not often been made the subject of judicial remark.2 It was alluded to in a late case in Georgia, where the building of a house on a piece of land was the consideration of the lease, and the court said that though the improvement might very possibly be equal to two thirds of the improved value of the land, yet in the absence of proof of such value, the lease, not being in writing, would not be held good for the stipulated time. Even there, however, as the term of the lease exceeded three years, the court did not find it necessary to decide any question upon the second section; and the reference is, perhaps, only useful as showing that the courts of that State are ready to apply it to its full extent when a proper case arises.1
1 4 Kent, Com. 115.
2 In Edge v. Strafford, 1 Cromp. & J. 391, the report states that in the trial at nisi prim the fact was found that the rent reserved amounted to two thirds of the annual value of the tenement. In a note to Coffin v. Lunt, 2 Pick. (Mass.) 70, a dissenting opinion of Mr. Justice Putnam is given, which is very instructive on the point stated in the text. For the other cases referred to in the text see the following sections, where the construction as to duration of leases is examined.
3 Ryley v. Hicks, 1 Stra. 651.
1 Vend. & P. 93.
2 See Appendix under the titles of the different States. The Revised Statutes of Massachusetts make no exception in favor of short leases, and it has been said that the English doctrine respecting tenancies from year to year, derived from parol leases, could only be sustained by the exception in the English statute; and that, for that reason, there could be no tenancy from year to year in Massachusetts, unless by a lease in writing: Ellis v. Paige, 1 Pick. 43. But the remark upon the effect of the second section does not seem to have been essential to the decision of the case, and the dissenting opinion of Mr. Justice Putnam, approved by Mr. Justice Jackson, contains a very full discussion of that point, and its reasoning is very satisfactory to show that no such effect has been given to the second section by the English courts. See note to Coffin v. Lunt, 2 Pick. 70. Again, in the case of Bolton v. Tomlin, 5 Ad. & E. 856, Lord Denman makes the remark that "leases not exceeding three years have always been considered as excepted by the second section from the operation of the fourth," so that special terms in a contract of tenancy might be proved by parol, though an action could not, perhaps, have been brought for refusal to perform the contract. See post. § 37 a. But the right to prove such special terms in a parol lease does not seem to be necessarily dependent upon the second section. See post, § 39.
§ 32 a. In two cases in New Jersey, where the second section has in terms been re-enacted, the provision concerning rent reserved has been noticed, and its importance insisted upon. In the first of these, Birckhead v. Cummins, Beasley, C. J., notices the passage from Sugden, quoted in the preceding section, and says that the reservation of rent to the statutory amount was a circumstance that would modify essentially the legal character of the transaction. In Gano v. Vanderveer, decided very soon after, failure of proof that rent was so reserved prevented a recovery upon the lease.2
§ 33. But although there appears to have been no case in England where a verbal lease has been sustained, as coming within the whole language of the second section, yet, as has been said, there are many in which the courts have taken occasion to explain that part of it which limits the duration of a verbal lease to three years, and these cases will be instructive in getting at the construction of such limitations in our own statutes. In Rawlins v. Turner it was held by Lord Holt, in accordance with the plain words of the section, that the three years were to be computed from the time of making the agreement, and not from any subsequent day.3 And although the lease is to commence and take effect at a future day, yet if, from the time of making the agreement until the lease expires, the interval be not more than three years, the statute does not apply to it1 These two rules in regard to verbal leases are very plainly settled.