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.
§ 6. The next question to be considered is, what changes the statute made in the formalities required for the transfer of estates in land; and, in answering it satisfactorily, we are met by no little difficulty in the exceedingly concise and somewhat obscure language of the first section. One construction, and perhaps the most obvious one, is derived from reading it affirmatively, that is, as if it enacted that all the interests and estates therein enumerated should thereafter be made or created by writing and signed by the parties, etc.; but as estates of freehold are embraced in the enumeration, this construction requires us to say that they too may be created by writing merely without deed.1 If, to avoid this difficulty, we say that a seal must be understood as required in addition to the writing, then it follows that terms for years which could originally be created without writing must now be not only in writing but also under seal. The important inquiry arises, therefore, whether the statute has in fact made it necessary that terms for years be created by deed. This inquiry was presented in the Supreme Court of New Jersey, in 1835, in the case of Mayberry v. Johnson, and answered in a masterly judgment of that court, pronounced by Chief Justice Hornblower. The ninth section of the New Jersey statute is copied almost literally from the first section of the English statute, and the case came before the court upon a verdict for the plaintiff, taken in an action of ejectment, subject to their opinion on two questions, of which the first was, "Whether a lease for more than three years, not under seal, is a good and valid lease within the Statute of Frauds." The argument for the plaintiff was the same suggested above, that if a lease could be without deed, so could a conveyance of freehold. The Chief Justice, after acknowledging the absence of any satisfactory judicial decision upon the question, proceeded to decide it upon the construction of the statute as ascertained by comparison with the common law. "At the common law, estates in fee, for life, or for years with remainder in fee, in tail or for life, might have been created by deed and livery of seisin, or by livery of seisin only; and leases or estates for years might have been made by deed or by parol, or by parol merely, without livery of seisin. It must also be remembered that, by the common law of England, all contracts were divided into agreements by specialty and agreements by parol; there was no such third class as agreements in writing. If they were written and not under seal, they were parol agreements. A lease for years written, but not sealed, was a parol lease, as well as a lease unwritten and verbal only. Thus stood the law of conveyancing and of contracts when the 29 Car. II., c. 3, was passed. The question then occurs, what change did the statute introduce in the mode of creating and transferring the different interests and estates of freehold, and less than freehold, mentioned in the statute. The answer is plain: it abolished the practice of creating estates in fee and all other estates of freehold, by livery of seisin only; and prohibited the making of leases for more than three years, by parol agreements, not put in writing. It did not prescribe the manner in which such estates should be created or transferred, but only declared that freehold estates, if made by livery and seisin only, and estates for years, if made by parol, and not put in writing, should operate as estates at will. In whatever way, therefore, such estates might have been created prior to the statute, other than by mere livery of seisin, or by parol, and not put in writing, they may still be created. Now it is manifest that before the Statute of Frauds, estates of freehold and of inheritance might have been created by deed and livery of seisin, and that leases might have been made by writing simply, or, to speak technically, by a parol agreement reduced to writing. It follows, therefore, that after the Statute of Frauds no estate of freehold could be created or conveyed but by deed; and that a lease for more than three years could only be made by indenture of lease, or by parol agreement 'in writing, signed by the parties.' Thus, by resorting to this distributive construction (a mode of construction not unusual, and often necessary to be adopted), the ninth section of the Statute of Frauds becomes plain and intelligible; and we are able to decide, without hesitation, that a lease for more than three years, in writing, though not under seal, is good and valid under that statute."1
1 1 Vend. & P. 94, 95.
1 As lately as the year 1815, in Jackson v. Wood, 12 Johns. (N. Y.) 73, it was insisted that a writing not under seal was sufficient, under the Statute of Frauds, to pass a fee-simple. This position was not sustained by the court, but they admit that no direct decision appeared to have been made on the point. That a seal is necessary to pass a freehold estate, even as against the grantor, see Stewart v. Clark, 13 Met. (Mass.) 79.
1 Mayberry v. Johnson, 3 Green (N. J.), 116.
§ 7. There are many cases to be found in the books, from which it appears that agreements in writing for leases, signed but not sealed, have been held to amount to leases, if in proesenti, and if it did not appear upon the whole instrument that the parties intended that it should not take effect until a more formal lease should be prepared and executed.1 These agreements are not leases, in strict and legal language; they are more properly parol demises "put in writing and signed by the parties," etc., or written evidence of leases. A lease, when we mean thereby the instrument, is in legal language an indenture of lease, or a deed; but in common speech, where it is said a man has a lease for property, nothing more is meant than that he has a term or an estate for years in the premises, which may be by deed or by writing not under seal.2 And it may be considered now as settled law both in England and this country, that the Statute of Frauds (except as it may have been modified by subsequent legislation) does not require a seal for the creation of an estate for years in land.3