If that was intended by the learned justice as a suggestion that such a void lease operated as a demise for one year, it is not in harmony with the view of the court in Laughran v. Smith, supra. That remark in the Craske Case was not essential to the determination there made, as rent was in fact paid for a portion of the term, nor it be asssumed that it was intended to have the import sought to be given to it. It must be assumed, upon authority and reason, that a parol lease for more than one year is ineffectual to vest any term whatever in the lessee named, and that when he goes into possession under it with the consent of the lessor, without any further agreement, he is tenant at will merely, subject to liability to pay at the rate of the stipulated rent as for use and occupation. Barlow v. Wainwright, 22 Vt. 88. This may be converted into a yearly tenancy by a new contract, which may be implied from circumstances, when they permit it. While the mere entry with consent will not alone justify it, a promise to pay and a purpose manifested to accept a portion of the annual rent provided for by the agreement may, as evidence, go in support of such a new contract. There was no such evidence in this case. The promise to the plaintiff to pay one-half the rent was made preliminarily to his entry, and was part of and not distinguishable from the parol agreement with the defendant to occupy for five years and pay one-half the rent for that term. There does not seem to have been any evidence to require the conclusion that any other than such void agreement was made between the parties, or that the plaintiff became other than a mere tenant at will of the defendant. 1 Woodfall's Landl. & Ten. (1st Am. ed. from 13th Eng. ed.) 221.
3. Alienation of the Term.
a. Assignment or subletting.
56 New York, 157. - 1874.
Folger, J. - This is an action of ejectment, brought by a landlord against an under-tenant. When the action was commenced, the term created by the original lease, had not expired by the lapse of time. It is claimed, however, that there had been a forfeiture of the lease, by a breach by the lessees, of their covenant not to sublet. That covenant is, that they will not sublet, without the written consent of the lessor. It is followed by the condition, that in case of a violation or breach thereof, the lease shall terminate, at the option of the lessor.
The first question is, did the lessees sublet the premises, without the written consent of the lessor. They executed an instrument to Brower, by which they gave him a right in the premises, for two years and seven months, and a privilege for four years longer by his giving two months' notice. The defendant contends that this is not a sublease, but that it is an assignment of the lease to them, or of their term. It is said, that when a lessee conveys his whole estate to an alienee, the conveyance amounts to, and is called, an assignment; and that the distinction between an assignment and a lease depends solely upon the quantity of interest which passes, and not upon the extent of the premises transferred. An assignment creates no new estate, but transfers an existing estate into new hands; an under-lease creates a perfectly new estate. Comyn on Land. and Ten. 51, 52. In this case, these general principles will not entirely satisfy; and we must learn how they have been applied in particular instances. We find that though a lessee make an instrument, which by its terms conveys the whole of his interest in the premises, if he reserve to himself a reversion of some portion of the term, it is an under-lease, and not an assignment. Archbold on Land. & Ten. 10. It has accordingly been held, that though the instrument dispose of the whole unexpired term, if it contain a covenant to surrender the premises on the last day of the term it is an under-lease and not an assignment. Post v. Kearney, 2 N. Y. 394. And again, if there be a right reserved to the lessor to re-enter on breach of conditions, this makes a sublease. Doe ex. dem. v. Bateman, 2 Barn. & Aid. 168. So it has been held that a reservation of a new rent makes the instrument a sublease. Piggot v. Mason, 1 Paige, 412. Undoubtedly, the chief of these is the reversion of some portion of the term. See Platt on Lease, 1 vol. p. 10 et seq. Therefore, though the instrument executed to Brower does, in the term of two years and seven months demised, and in the privilege for the further term of four years, cover the whole unexpired term demised by the plaintiff to the Bronners; yet it is a sublease and not an assignment. It is in the form of a lease; it reserves to the Bronners rent at a rew rate and at a new time of payment; it stipulates for a right of re-entry on nonpayment of rent, and on the breach of certain conditions contained in it; it provides for a surrender of the premises to them on the expiration of the term. Thus the Bronners did not part with their whole interest in the premises and in the lease thereof to them.
The case of Bedford v. Terhune, 30 N. Y. 453, cited by defendant, does not conflict with these views. There no agreement to underlet was proven, nor any fact from which an under-letting could be fairly inferred. The court recognized the general rule, that a transfer of the whole unexpired term is an assignment thereof and not an under-letting, and it declined to presume from" the facts proved, that there was what would have worked a forfeiture; but held, in the absence of evidence of the bargain between the lessees and their assigns, that the presumption was, that the latter took the whole unexpired term.
Having shown that the Bronners did sublet the premises, it is plain that it was without the written consent of the lessor. * * *
7 New York, 528. - 1852.
Action for rent. Plaintiffs were lessees of Mrs. Dunscombe, under certain conditions stated in the opinion, and had sublet a portion of the premises to defendants. Defendants were allowed, under objection and exception, to prove that they had paid the rent claimed by plaintiff to Mrs. Dunscombe on account of the rent reserved under the original lease. Judgment for defendants. Plaintiffs appeal.