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 Legg v. Strudwick, 2 Salk. 414; Birch v. Wright, 1 T. R. 378; Raynor v. Drew, 72 Cal. 307. See also Pugsley v. Aiken, 11 N. Y. 494; Fox v. Nathan, 32 Conn. 348.
2 Plowd. 373; Bro. Tit. Leases, 49
3 Roberts on Frauds, 242, note (d).
4 4 Kent, Com. 95 note; Lysle v. Williams, 15 Serg. & R. (Pa.) 135; Donaldson v. Smith, 1 Ashm. (Pa.) 197; Wilcox v. Wood, 9 Wend. (N. Y.) 346.
5 Atkins v. Sleeper, 7 Allen, 487; Perry v. Provident Insurance Co., 99 Mass. 162; Keyes v. Dearborn, 12 N. H. 52.
6 Edge v. Strafford, 1 Cromp. & J. 391. And see Delano v. Montague, 4 Cush. (Mass.) 42.
1 Chit. Cont. p. 287; Washb. Real Prop. Bk. I., c. xi., § 2, par. 31. See Larkin v. Avery, 23 Conn. 313.
§ 37 a. There remains to be discussed the question whether Edge v. Strafford is in conflict with the authorities just cited. This case, and that of Inman v. Stamp, which it follows and supports, were cited and discussed by the courts in the New Jersey and Indiana cases. In the former it was observed that the action in Edge v. Strafford was not upon any provision of the lease itself, but for damages for the breach of an alleged contemporaneous parol agreement that the lessee would take actual possession of the premises; and consequently that the ruling, which disallowed any action on such an agreement, even if correct, did not affect questions arising on the lease itself. In the Indiana case, the same distinction is noticed, but its soundness is much doubted. Lord Denman, in Bolton v. Tomlin, puts the cases of Edge v. Strafford, and Inman v. Stamp upon a different ground, assuming that they did not involve parol demises, but merely agreements to demise; and this view seems to be supported by the language of some of the later cases.1 Unless some distinction of this sort does exist in those cases, Lord Denman's decision seems to overrule them, and it may fairly be doubted, in view of the language used by Baron Bayley in Edge v. Strafford, whether he had any such distinction in his mind. Upon the whole, then, it would seem that these two cases should be regarded as of but little weight, so far as they favor that rule of interpretation of the statute, in support of which, as we have seen, they have been quoted; and in view of the authority against it, the existence of any such rule may well be doubted.2
1 Huffman v. Starks, 31 Ind. 474. See Young v. Bake, 5 N. Y. 463.
2 Bolton v. Tomlin, 5 Ad. & E. 856. See Childers v. Talbott, 4 New Mexico, 168.
3 Delano v. Montague, 4 Cush. (Mass.) 42. A.nd see Bateman v. Maddox, 85 Tex. 546.
§ 38. The English Statute of Frauds does not make verbal leases void, but allows them the effect of estates at will. Such a tenancy may be converted into a tenancy from year to year, by the entry of the lessor, and payment of rent,3 provided nothing appears to show that the payment was not made or received as rent, and provided also that the payment be made with reference to a year, or some aliquot part of it. For where payment is not so made, the tenancy implied will not be one for a year, but for a quarter, month, or week, according to the intention of the parties, as inferred from the times of payment.1 This is especially so in the interpretation of agreements for lodgings.2 The mere entry of the lessee under the verbal lease will not be sufficient to convert it into an estate from year to year; there must also be payment or acknowledgment of rent.3 It was said in the Supreme Court of Massachusetts that the doctrine as to tenancy from year to year seemed very clearly to depend upon the exception in the second section of the statute, and to be sustained only upon the ground of that exception.1 This view receives some countenance from the language of Lord Kenyon in Clayton v. Blakey, where he says that what was considered at the time of the passage of the statute a tenancy at will "has since been very properly construed to inure as a tenancy from year to year."2 Nevertheless, it is quite clear that this doctrine is much older than the Statute of Frauds, which, in giving to verbal leases of certain kinds the force of estates at will, left it to the common law to apply all the incidents of that estate, including its convertibility by entry and payment of rent into a tenancy from year to year.3 The Supreme Court of Massachusetts determined, however, upon the strength of the absence from the law of that State of any exception as to short leases, that a verbal lease was to be treated strictly as a lease at will, and not as from year to year, and the same law prevails in Maine, where the statute in regard to leases resembles that of Massachusetts.4 In Missouri, also, short leases are not excepted, but it has always been held there that these estates may be converted into tenancies for a term indicated by the times of payment of rent.6
1 Wright v. Stavert, 2 El. & E. 721; White v. Maynard, 111 Mass. 250. In Missouri, short leases are expressly excepted from that section corresponding to the fourth section of the English statute. Hoover v. . Pacific Co., 41 Mo. App. 317.
2 And see Coe v. Clay, 5 Bing. 440; followed in Jenks v. Edwards, 11 Exch. 775.
3 Clayton v. Blakey, 8 T. R. 3. (Even since the statute 8 & 9 Vict, c. 106, § 3, requiring leases to be by deed, there seems no reason to doubt that this rule is the same. Chit. Cont. 287.) McDowell v. Simpson, 3 Watts (Pa.) 129; People v. Rickert, 8 Cow. (N. Y.) 226; Schuyler v. Leggett, 2 Cow. (N. Y.) 660. See also Duke v. Harper, 6 Yerg. (Term.) 280; Morehead v. Watkyns, 5 B. Mon. (Ky.) 228; Ridgely v. Stillwell, 28 Mo. 400; Drake v. Newton, 23 N. J. L. 1ll; Taggard v. Roosevelt, 2 E. D. Smith (N. Y.) 100; Reeder v. Sayre, 6 Hun (N. Y.) 562; affirmed, 70 N. Y. 180; Hoover v. Pacific Oil Co., 41 Mo. App. 317; Koplitz v. Gustavus, 48 Wisc. 48; Blumenthal v. Bloomingdale, 100 N. Y. 558; Coudert v. Cohn, 118 N. Y. 309; Rogers v. Wheaton, 88 Tenn. 665; Ohio and Miss. R. R. v. Trapp, 4 Ind. App. Ct. 69. See also Hammond v. Dean, 8 Baxter (Tenn.) 193; Chicago Attachment Co. v. Davis Machine Co., 142 111. 171.