By the Court, Nelson, J. - The agreement between the parties was a letting of the premises upon shares, and, technically speaking, was not a lease. 8 Johns. R. 151; 3 Id. 221; 2 Id. 421, n.; 8 Cowen, 220. There is nothing which indicates that the stipulation for a portion of the crops was by way of rent; but the contrary. The shares were of the specific crops raised upon the farm. It is very material to the landlord, and no injury to the tenant, that this view of the contract should be maintained, unless otherwise clearly expressed, for then the landlord has an interest to the extent of his share in the crops. If it is deemed rent, the whole interest belongs to the tenant until a division. Where a farm is let for a year upon shares, the landlord looks to his interest in the crop as his security, and thereby is enabled to accommodate tenants, who otherwise would not be trusted for the rent.
This case is clearly distinguished from that of Stewart v. Dougherty, 9 Johns. R. 108. There the court, from the correspondence between the phraseology of the instrument and the terms usual in leases in the reservation of rent, came to the conclusion that the proportion of the crops specified in the agreement was intended as payment of rent in kind, and that, therefore, the whole interest belonged to the tenant. If my conclusion be correct, then the parties were tenants in common in the crops, and as the plaintiff stood in the place of her testator, she was not entitled to sustain her action, and the Common Pleas did right to grant a nonsuit.
1 In some cases of this kind there is a true lease - rent paid in kind. In some the cropper is a servant - paid in produce; in other cases the parties are tenants in common of the crop. - Ed.
d. Cases of leases in fee reserving a fee-farm rent.
1 19 New York, 68. - 1859. [Reported herein at p. 81.]
1 Wharton (Pa.), 336. - 1836. [Reported herein at p. 86.]
e. Agreement for a lease. Ames, J., in
102 Massachusetts, 392. - 1869.
The question whether a written instrument is a lease, or only an agreement for a lease, depends on the intention of the parties to be collected from the whole instrument. Bacon v. Bowdoin, 22 Pick. 401. The form of expression "we agree to rent or lease" is far from being decisive upon this question, and does not necessarily import that a lease is intended to be given at a future day. On the contrary those words may take effect as a present demise, and the words "agree to let," have been held to mean exactly the same thing as the word "let," unless there be something in the instrument to show that a present demise could not have been in contemplation of the parties. Doe v. Benjamin, 9 Ad. & El. 644. The test seems to be that if the agreement leaves nothing incomplete it may operate as a present demise. Doe v. Ries, 8 Bing. 178. The agreement relied upon by the plaintiffs contains no stipulation for a lease at any future time, and there is nothing to show that any more formal document was contemplated. It is not prospective or executory, and it does not indicate that anything remained to be done on the part of the plaintiffs. It gave to the defendants an immediate right of possession. Staniforth v. Fox, 7 Bing. 590; Doe v. Ashburner, 5 T. R 163; Jenkins v. Eldredge, 3 Story, 325. It creates a term, beginning with the delivery of the instrument, and ending upon the completion of the gas-holder in a reasonable time; and it stipulates for a rent, the amount of which was to be determined by arbitration. So far as the plaintiffs are concerned, it has all the essential qualities of a present demise. The report finds that the agreement which we have considered as effectively a lease, was delivered to the defendants, and was accepted by them. Under such circumstances, their liability to pay rent is not qualified, or taken away, by proof that they never actually occupied the premises. It is enough that they accepted the conveyance, which gave them the right of immediate and exclusive occupation. The law would imply, from such acceptance, a promise to comply with the terms of the lease Guild v. Leonard, 18 Pick. 511, 516; Goodwin v. Gilbert, 9 Mass 510; and such a promise is not within the statute of frauds. Felch v. Taylor, 13 Pick. 133. Under that implied promise the defendant would be responsible, even though they refuse to take possession of the property. Taylor, Landl. & Ten., § 176. They hold the premises whether they occupy them or not Pinero v. Judson, 6 Bing. 206; and such holding constitutes legal or constructive possession.
1 "No lease or grant of agricultural lands, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid." Const. N. Y., art. I., § 13. This appears for the first time in the constitution of 1846. As to a lease of such lands for other than agricultural purposes, see Odell v. Durant, 62 N. Y. 524. As to what is meant here by "rent," see Parsell v. Stryker, 41 N. Y. 480. - Ed.
f. An inter esse termini.
64 New York, 518. - 1876.
Church, Ch. J. - From the facts disclosed in this case, the loss occasioned by not renting the premises, by either of the parties, was unnecessary. The evidence tends to establish that the defendant's testator, in February or March, 1874, leased the premises by parol of the plaintiff, by her son, for one year from the first of May thereafter, the testator then being in possession under a prior lease. The testator died in April, and the family not desiring to retain the house, the defendant gave notice that they would not retain it, and on the first of May they abandoned the possession and tendered the key, which was declined. This action is brought for three-quarters' rent.
The defendant proved that the plaintiff might have rented the house for nearly as much as the defendant's testator was to pay for the same. A verdict was directed for the plaintiff. It is claimed by the defendant that between the making of the contract and the time for taking possession, the contract was executory, and that the defendant having refused to perform it, the plaintiff could only recover the actual damages, which, within the general rule, the plaintiff was bound to make as small as possible. 28 N. Y. 72; 43 Id. 237. While the rule of law invoked is well settled, I feel constrained to hold that it is not applicable to this contract. The error is in the position that this was an executory contract. This court decided, in Young v. Dake, 5 N. Y. 463, 1 that a parol lease for a year, to commence in futuro, is valid and obligatory. Such a lease vests a present interest in the term. It is assignable before entry, and the lessee can bring ejectment if possession is withheld. Whitney v. Allaire, 1 N. Y. 307, and authorities cited. The same principle was recognized in Trull v. Granger, 8 N. Y. 115. It was there held that although ejectment would lie, the tenant might also bring an action for damages upon the implied agreement to give possession, or in tort for a violation of duty. If the landlord could not rescind, the tenant could not. The rights and liabilities in this respect are mutual. Each party acted upon their strict legal rights, and while the result we can see will operate harshly upon the defendant and the estate, we are compelled to adjudge the law as we find it. When the plaintiff refused to accept this recission, the defendant still held the term, and was responsible for the rent of the house. The lease, although verbal, is as binding as if in writing. It granted in praesenti a term of one year in the premises, which the testator agreed to pay for. It is like the sale of specific personal property to be delivered. In such a case the title passes to the vendee, and, of course, he is liable for the purchase-money. * * *