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 Camden v. Batterbury, 5 C. B. n. s. 817; Braythwayte v. Hitchcock, 10 Mees. & W. 497; Anderson v. Prindle, 23 Wend. (N. Y.) 619; Barlow v. Wainwright, 22 Vt. 88; People v. Darling, 47 N. Y. 666; Creighton v. Sanders, 89 111. 543; Evans v. Winona Lumber Co., 30 Minn. 515; Johnson v. Albertson, 51 Minn. 333; Field v. Herrick, 14 Brad. (111. App.) 181; Steele v. Anheuser-Busch Brewing Ass., 58 N. W. Rep. (Minn.) 685.
2 Wilson v. Abbott, 3 Bam. & C. 88.
3 Doidge v. Bowers, 2 Mees. & W. 365; Cox v. Bent, 5 Bing. 185. In Pennsylvania, where there is no statute prohibiting actions upon executory contracts for land, and where there is an exception in the second section in favor of leases for not over three years, Chief Justice Tilghman expressed the opinion that, according to adjudged cases, a verbal lease for more than three years might be entirely taken out of the statute by delivery of possession, and that it certainly would, if attended by improvements by the lessee. No decision was required, however, or given upon the point. Jones v. Peterman, 3 Serg. & R. 543; Farley v. Stokes, 1 Sel. Eq Cas. 422, is to the same effect. But the case of Soles v. Hickman, 20 Pa. St. 180, decided in 1852, and which has been referred to above, seems to be irreconcilable with these decisions; for, there being no written evidence of the creation of the estate, the court would not decree a conveyance. The case does not show any part-performance, and the opinion does not indicate what would be the effect if there were any shown. In Mountain City Association v. Keams, 103 Pa. St. 403, it was said that a lease of the character under discussion followed by possession and improvements created an estate at will. Such an estate, it has also been held, would be converted into a tenancy from year to year by the annual payment and acceptance of rent. Dumn v. Rothermel, 112 Pa. St. 272. In Kentucky (Morehead v. Watkyns, 5 B. Mon. 228), where the statute simply provides that no estate for a term of more than five years shall be conveyed without writing, etc., not specifying what effect parol leases for a less term shall have, it is held that a tenant under such a lease is bound to the duties of a tenant from year to year. See also in Indiana the case of Nash v. Berkmeir, 83 Ind. 536.
§ 39. A long series of opinions has established, both in this country and in England, that where the statute simply declares a verbal lease to have the force of creating an estate at will, its policy is satisfied by preventing the creation by word only of estates in land above a certain quality; and so long as parties do in fact proceed as landlord and tenant under such restrictions in point of time as the statute imposes, it allows full effect and obligation to the covenants and stipulations which they see fit to embrace in their agreement; so far as these are applicable to, or not inconsistent with, a tenancy for the time implied.1 For instance, the covenant to repair contained in such a lease will be binding,2 as also the stipulations as to the amount of rent and time of payment,3 and as to the time when the tenant shall quit, whether it be at a time fixed, or upon a certain contingency.4 The question whether covenants in an original lease apply to a tenancy from year to year, created after the term by parol, is for the jury.5
Ellis v. Paige, 1 Pick. 43. 2 Clayton v. Blakey, 8 T. R. 3.
3 Such an estate at will, arising from a parol demise, and convertible into a tenancy from year to year, is assignable. Botting v. Martin, 1 Camp. 317. See Elliott v. Johnson, L. R. 2 Q. B. 120. Where such estates are not convertible, but remain estates at will purely, they come under the general rule and are not assignable. Cunningham v. Holton, 55 Me. 33; King v. Lawson, 98 Mass. 309. See Whittemore v. Gibbs, 24 N. H. 484; Austin v. Thompson, 45 N. H. 113.
4 Davis v. Thompson, 13 Me. 209; Withers v. Larrabee, 48 Me. 570. 5 Hammon v. Douglas, 50 Mo. 434.
§ 40. It is obvious that where the statute in any particular State denies to the parol agreement of the parties even the efficacy of fixing the terms of the tenancy which may arise by their subsequent acts, and the time of determining it, still, if the lessee has actually used and occupied the land, he will be liable on his implied promise to pay for such use and occupation. And in such cases, recourse may be had to the original agreement as evidence of the value of such use and occupation.6 But where defendant entered under a verbal agreement for an annual rent of four hundred dollars, payable quarterly, no time of terminating the tenancy being fixed, and the lessor sold the premises between two quarter-days, it was held that no rent was due by the contract for occupation since the last quarter-day, because the tenancy was determined before the day of payment. Neither was there any implied promise, the tenancy being under an express agreement of the parties, to pay for use or occupation.1
1 People v. Rickert, 8 Cow. (N. Y.) 226. See Hand v. Hall, 2 Ex. Div. 355. See Man v. Ray, 50 111. App. Ct. 415.
2 Beale v. Saunders, 3 Bing. N. R. 850; Richardson v. Gifford, 1 Ad. & E. 52; Halbut v. Forrest City, 34 Ark. 246; Brockway v. Thomas, 36 Ark. 518.
3 Barlow v. Wainwright, 22 Vt. 88; De Medina v. Poison, Holt, 49; Norris v. Morrill, 40 N. H. 395.
4 Rigge v. Bell, 5 T. R. 471; Schuyler v. Leggett, 2 Cow. (N. Y.) 660; Hollis v. Pool, 3 Met. (Mass.) 350. See also Richardson v. Gifford, 1 Ad. & E. 52; Tress v. Savage, 4 El. & B. 36; Currier v. Barker, 2 Gray (Mass.) 226.
5 Oakley v. Monk, 3 Hurlst. & C. 705.
6 De Medina v. Poison, Holt, 47. See Morehead v. Watkyns, 5 B. Mon. (Ky.) 228.
1 Fuller v. Swett, 6 Allen (Mass.) 219, n.; Robinson v. Deering, 56 Me. 357.