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.
2 Birckhead v. Cummins, 33 N. J. L. 44; Gano v. Vanderveer, 34 N. J. L. 293. And see Union Banking Co. v. Gittings, 45 Md. 181.
3 Rawlins v. Turner, 1 Ld. Raym. 736. See also Chapman v. Gray, 15 Mass. 439; Delano v. Montague, 4 Cush. (Mass.) 42.
§ 34. A question has arisen in New York, having a somewhat important relation to this subject. As the law of that State originally stood, the term for verbal leases was, as in England, "three years from the making." But the Revised Statutes 2 shortened the term to one year, and omitted the words "from the making thereof." This alteration was considered by the Supreme Court of that State in Croswell v. Crane, and it was held upon principle, as well as upon reference to the report of the revisors of the statutes, that a verbal lease for one year, to commence in futuro, was still invalid, notwithstanding the alteration in the laws.3 But the same question, coming before the Court of Appeals in the following year, was decided otherwise, and Croswell v. Crane overruled. The court said that the legislature clearly intended to omit the requirement which existed previously, namely, that the lease must terminate within the prescribed time, reckoning from the making; and that their intention must be carried out, such omission not being contrary to the common law.4 This decision and the legislation to which it refers seem to consider the policy of the statute as satisfied by prohibiting estates for a longer term than a fixed number of years from being created by word of mouth, thus regarding solely the important nature of land as requiring especial solemnities for its transfer; whereas the English statute and the decisions of the English courts clearly look also to the danger of admitting oral testimony of transactions long past, a danger which they seem to have kept constantly in mind in interpreting each of the provisions of the Statute of Frauds.
1 Ryley v. Hicks, 1 Stra. 651.
2 N. Y. Rev. Stat. Part II., c. vii., tit. 1, §§ 6, 8.
3 Croswell v. Crane, 7 Barb. 191. See Sobey v. Brisbee, 20 Iowa, 105.
4 Young v. Dake, 5 N. Y. 463. See also Taggard v. Roosevelt, 2 E. D. Smith, 100; Thomas v. Nelson, 69 N. Y. 118. In Allen v. Devlin, 6 Bosw. 1, the same doctrine is applied to a surrender. The case is affirmed, nom. Smith v. Devlin, 23 N. Y. 363.
§ 35. The operation of the statute as to the duration of verbal leases is prospective; it regards only the time which the lease has yet to run. Thus where a lease is to run from year to year, so long as both parties please, although, when five or six or more years are past, it may be said, regarding it retrospectively, to be a verbal lease for that number of years, yet the lease is good, as the statute only looks to verbal leases for a certain number of years to come.1 This rule of course does not apply to leases from year to year, for and during a fixed period of time which exceeds the limit allowed to verbal leases;2 though it would seem to hold good where it rests in covenant for the lessor to grant a fresh term at the end of the first, and so on.3
§ 36. In estimating the prescribed number of years, the day of the date will be included or excluded according to the nature of the instrument and the intention of the parties.4 In Massachusetts and New Hampshire the rule is that if the lease is expressed to be from a day certain, that day is not counted; but if it is so expressed as by implication to run from the date of the making, the day is counted.6
§ 37. The case of Edge v. Strafford, in the Exchequer, 1831, brought up the interesting question whether a verbal lease good under the second section of the statute came within the fourth section in regard to contracts, so that neither party could bring action for not giving or taking possession under it;6 and several of the text writers have regarded it as an authority that the two sections should be thus construed.1 But in the light of later decisions both in England and this country, it may be doubted whether there is any such rule, or whether this case is any authority in support of it. The former question was thoroughly and ably discussed by Chief Justice Beasley, of the Supreme Court of New Jersey, in a case presenting a similar state of facts. After commenting upon the second section as being "adequate to its purpose and complete in itself," he proceeds to discuss the effect of the fourth section upon it. "It cannot be denied," he says, "that a lease is a contract concerning an interest in land; and therefore if the [fourth] section be applicable to this class of cases at all, such a contract cannot be enforced. The effect consequently would be that, by the exception in the former section, an interest is preserved, which is annulled by the incongruous operation of the latter. Nor can I perceive the propriety of the distinction that the latter section applies to the lease only in its condition as unexecuted by the entry of the lessee; because it is undeniable that after such entry it is as much a contract respecting an interest in lands as it was before the doing of such an act on the part of the tenant." The language of the second section is then noticed, "leases not exceeding the term of three years from the making thereof," as clearly contemplating the existence of present parol demises, giving a right of possession in futuro; for the duration of the estate is limited from the date of making the lease, and not from that of going into possession. Finally it is held that "by a just construction of the Statute of Frauds, a parol lease not exceeding three years from the making, and reserving a rent in the proportion designated, is good from its inception, and will support an action for the rent in arrear, without any entry having been made upon the premises by the lessee." In the case of Huffman v. Starks, also, the question of the effect of the fourth section upon the second was discussed, and the Supreme Court of Indiana, by a majority, likewise held that the two were quite distinct, and were to be so regarded; and a conflicting decision of the same court was in substance overruled.1 In the English case of Bolton v. Tomlin,2 decided soon after Edge v. Strafford, Lord Denman expressly said that leases not exceeding three years have always been considered as excepted by the second section from the operation of the fourth. It may be added that if the provision of the fourth section in regard to interests in land is to apply to the leases excepted by the second section the provision of the fourth section in regard to agreements not to be performed within a year should also apply; and this would render the second section almost nugatory.3