By the early common law a lessee had no interest which the law would protect against third persons, nor, indeed, against the lessor, unless the interest in the lands rested on a covenant by deed. It had been the practice from very early times to grant leases by deed, and in such a case, if the lessor wrongfully ejected the lessee, the lessee had his remedy by action on the covenant, as in the case of any other covenant under seal. A new writ was introduced, which afforded the lessee a remedy against his lord, whether the lease was by deed or not, and also gave him a right to protection against ejectment by a third person, and probably an additional remedy, by enabling the lessee to recover possession of the land, and not merely damages for breach of covenant. This was called the "writ of ejectio firmae,"-a proceeding which, by a series of fictions, was extended till, in the form of the action of ejectment, it became the appropriate means of asserting the right to the possession of land, under whatever title, and took its place as the statutory substitute for all the forms of real actions. Thus the interest of the termor or lessee for years, instead of resting at best upon a covenant with his lessor, and therefore being enforceable only as against him, became a right of property, which could be enforced against anv wrongdoer, by a remedy analogous to that provided for a wrongful ouster of a freeholder from his possession. Thus these interests became estates or rights of property in land.1
1 Dig. Real Prop. (4th Ed.) 175.
76. The creation of estates for years is subject to the following rules:
(a) They can be created only by contract or devise
(b) The parties must be competent, and the lessor or testator must have an estate out of -which an estate for years may be created (p. 131).
(c) There must be a writing, if the estate is for more than:
(1) One year in some states.
(2) Three years in other states (p. 132).
(d) They may begin in futuro (p. 133).
Contract or Devise
Estates for years can arise only by act of parties, not by operation of law.2 After an estate for years is in existence, it may be transferred by operation of law, but it cannot come into existence in that way. Estates for years are usually created by contract,-that is, by lease,-though they may arise by devise. Id the latter case no contractual obligations are imposed on the devisee, unless there are conditions contained in the devise which the devisee becomes bound to perform by accepting the devise.
Same - Lease and Agreement for a Lease.
The distinction between a lease and an agreement for a future lease should be noted. Where the point is in doubt, the test in
2 Poppers v. Meagher, 148 111. 192, 85 N. E. 805; Board of Sup'ra of Cass Co. v. Cowgill, 97 Mich. 448, 56 N. W. 849; Sawyer v. Hanson, 24 Me. 542; Loring v. Taylor, 50 Mo. App. 80. But see Roe v. Ward, 1 H. Bl. 97; Bishop v. Howard, 2 Barn. & C. 100; Skinner r. Skinner, 38 Neb. 756, 57 N. W, 534.
All cases is the intention of the parties.3 The distinction is important, because a written lease, fully executed, cannot be varied by parol, while, if it is only a contract for a lease, omitted terms and conditions may be supplied according to the intention of the parties.4
Who may Create Estates for Years.
"Any person who by law may hold real estate, and who is under no legal disability, may make a lease of lands that accords with his estate or interest therein." 5 The qualifications required by law for parties to leases are the same as for parties to a contract Therefore leases by and to infants,6 lunatics, and intoxicated persons are voidable, rather than void.7 But, except as now changed by statute, leases by a married woman of lands not part of her separate estate are void,8 the husband having the sole power to lease such lands.9 Leases may be made by agents,10 guardians,11 executors to whom land is devised,12 and trustees. But, where the cestui que trust does not join, a lessee who has notice of the trust holds as trustee himself.13
No lease of land is valid where the lessor has been disseised,
3 Goodtitle v. Way, 1 Term R. 735; Bacon v. Bowdoin, 22 Pick. (Mass.) 401; Western Boot & Shoe Co. v. Gannon, 50 Mo. App. 642; Poole v. Bent-ley, 12 East, 168.
4 1 Washb. Real Prop. (5th Ed.) 483; Mcfarlane v. Williams, 107 111. S3. 5 1 Wood, Landl. & Ten. (2d Ed.) § 80.
6 Clark, Cont. 210; Field v. Herrick, 101 111. 110; Griffith v. Sehwender-inan, 27 Mo. 412.
7 1 Tayl. Landl. & Ten. (8th Ed.) 107; 1 Wood, Landl. & Ten. (2d Ed.) 228. Cf. Nichol v. Thomas, 53 Ind. 42. But when the lunatic is under guardianship his leases are void. See Elston v. Jasper, 45 Tex. 409. And see Van Deuseu v. Sweet, 51 N. Y. 378.
8 1 Wood, Landl. & Ten. (2d Ed.) 216; 1 Tayl. Landl. & Ten. (8th Ed.) Ill; Murray v. Emmons, 19 N. H. 483.
9 See ante, p. 71.
10 1 Tayl. Landl. & Ten. (8th Ed.) 148; 1 Wood, Landl & Ten. (2d Ed.) 2G7.
11 Hughes' Minors' Appeal, 53 Pa. St. 500; Hicks v. Chapman, 10 Allen (Mass.) 463. Leases by guardians must not be for an unreasonable length of time, as beyond the minority of the ward. Ross v. Gill, 4 Call (Va.) 250; Van Doren v. Everitt, 5 N. J. Law, 460.
12 1 Wood, Landl. & Ten. (2d Ed.) 238; 1 Tayl Landl. & Ten. (8th Ed.) 144.
13 1 Wood, Landl. & Ten. (2d Ed.) 312; 1 Tayl. Landl. & Ten. (8th Ed.) 14L and the land is held adversely.14 Tenants for life, as in dower, by curtesy, and per autre vie, can make demises of the land which are valid until the termination of the life estate.15 Joint tenants,16 tenants in common,17 and co-parceners18 can lease their undivided portions without the consent of the co-owners.19 Leases by a mortgagor prior to the mortgage are valid against the mortgagee,20 but not if subsequent to the execution of the mortgage, where the mortgagee does not join.21
By the statutes of frauds22 of the several states, leases for longer than a year (or three years in some states) must be in writing,23 and some statutes require a deed 24 for leases of more than, a specified length.25 The words generally used in granting an estate for years are "lease," "demise," and "farm let," signifying the creation of a present interest.26 But other words will be sufficient if the meaning is clear.27
14 1 Tayl. Landl. & Ten. (8th Ed.) 96; 1 Wood, Landl. & Ten. (2d Ed.) 325.
15 l Tayl. Landl. & Ten. (8th Ed.) 122; Mclntyre v. Clark, 6 Misc. Rep. 377, 26 N. Y. Supp. 744; Sykes v. Benton, 90 Ga. 402, 17 S. E. 1002; Coakley v. Chamberlain, 1 Sweeny (N. Y.) 676.
16 See post, p. 333.
17 See post, p. 335.
18 See post, p. 336.
19 1 Tayl. Landl. & Ten. (8th Ed.) 123. Cf. Talnter v. Cole, 120 Mass. 162. And see Grabfelder v. Gazettl (Tex. Civ. App.) 26 S. W. 436.
201 Tayl. Landl. & Ten. (8th Ed.) 129; Moss v. Gallimore, 1 Doug. 279; .Rogers v. Humphreys, 4 Adol. & E. 299.
21 1 Tayl. Landl. & Ten. (8th Ed.) 128; 1 Wood, Landl. & Ten. (2d Ed.) 254. And see post, p. 196.
22 For the memorandum, signing, etc., required by the statute of frauds, see Clark, Cont. p. 114.
23 l stim. Am. St Law, § 4143; 2 Shars. & B. Lead. Cas. Real Prop. 54. 24 See post, p. 415.
25 See 1 Stim. Am. St Law, § 1471; 2 Share. & B. Lead. Cas. Real Prop. 55. And see Bratt v. Bratt 21 Md. 578. But cf., as to the other terms, Doe v. Bell, 5 Term R. 471; Doe v. Stratton, 4 Bing. 446; Richardson v. Gifford, 1 Adol. & E. 52. In the absence of such a deed, the lessee is tenant from year to year. Clayton v. Blakey, 8 Term R. 3.
26 Averill v. Taylor, 8 N. Y. 44; Wright v. Trevezant, 3 Car. & P. 441; Doe V. Benjamin, 9 Adol. & E. 644.
27 Doe v. Ries, 8 Bing. 178; Roe v. Ashburner, 5 Term R. 163; Jackson v.