Judgment is not arrested, but must be entered according to the verdict.1
22 Indiana, 122. - 1864.
Worden, J. - On the 1st of April, 1859, Brown let to Bragg certain real estate, to be held by the latter for the term of one year from that date; for which Bragg was to pay, as rent, the sum of $450, to be paid quarterly, at times specified in the instrument of writing creating the tenancy executed between the parties. On the 1st of December, 1859, a quarter's rent being due and unpaid, Brown served on Bragg a notice to quit the premises at the expiration of ten days, unless the rent in arrear should be paid within that time.
Bragg failing to pay the rent or quit the premises, this action was brought by the representatives of the lessor to recover possession. The suit was brought before the expiration of the term.
1 See Graves v. Berdan, infra. - Ed.
The court below held on the facts above stated, that the plaintiffs were not entitled to recover, and we think the decision was in accordance with the law of the case.
We suppose that, independently of any statutory provisions, the proposition that the failure to pay the rent due, did not work a forfeiture of the estate of the tenant, is too clear to require the citation of any authorties in its support. In order that a failure to pay rent should work a forfeiture, it should be so expressed in the lease or agreement of the parties, which was not done in the case before us. As well might a man who sells a horse to be paid for in the future, claim to recover him back on failure of the purchaser to pay according to his stipulation, as the lessor of real estate to recover it from his tenant because of his failure to pay rent, there being no stipulation that such failure should work a forfeiture.
But we have the following statutory provision, which is claimed by the appellants to be applicable to the case before us. "If a tenant at will, or from year to year, or for a shorter period, neglect or refuse to pay rent when due, ten days' notice to quit shall determine the lease, unless such rent shall be paid at the expiration of said ten days." 2 G. & H. P. 359, § 4.
The case before us does not come within any of the clauses of the •statute above set out. * * *
The lease in the case before us, created an estate which the law defines to be an estate for years. Such would also have been its character had it been less than a year in duration. "Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years." 2 Shars. Blackstone, p. 142. "Estates for years embrace such as are for a single year, or for a period still less, if definite and ascertained, as a term for a fixed number of weeks or months, as well as for any definite number of years, however great." 7 Washburn on Real Estate, p. 291.
The defendant being a tenant for years, and not at will, or from year to year, or for a shorter period, it was not competent for the lessor to terminate the tenancy before the expiration of the term, on the ground of failure to pay the stipulated rent.
Judgment below affirmed.
b. The term may be created to commence in futuro.1
5 New York, 463. - 1851.
Summary proceedings brought by landlord to remove a tenant who is alleged to be holding over his term. In Sept., 1848, while the defendant was in possession of the premises under a lease which would expire April 1, 1849, a, parol agreement was entered into between the parties that Dake should occupy the store for another year, commencing April 1st, 1849, on the same terms as for the then current year. This proceeding was commenced April 3, 1849. Judgment for defendant below. The judgment was sustained on certiorari to the Supreme Court. Plaintiff appeals.
McCoun, J. - The importance of this case is owing chiefly to the fact that the judgment of the Supreme Court in the fourth district, on the opinion of Mr. J. Paige, which is appealed from, and a judgment in the fifth district in Croswell v. Crane, 7 Barb. 192, on the opinion of Allen, J., upon precisely the same question, are directly in conflict with each other. That question is simply this, whether a parol agreement to let, or demise, a house or other real estate, for the term of one year, to commence in futuro, is valid in law?
There are two sections of our present statute concerning "fraudulent conveyances and contracts relative to lands," which bear upon the question, and by which it must be determined. These are sections 6 and 8, 2 R. S. 134.2 The first of these sections relates to the manner of creating an estate or interest in land, and of assigning it, etc. The other prescribes the requisites of a valid contract for the sale of lands; and both, by way of exception, leave "leases for a period not exceeding one year," and "contracts for the leasing for a period not longer than 'one year,' "unaffected by the formalities and requisites therein prescribed.
It follows, therefore, that a lease "for a term not exceeding 'one year,"and a contract for" a lease or letting for a period 'notlonger than one year' "are valid, though made by parol; but the question is whether the lease or contract, in order to be thus valid, must be confined to one year from the time of granting, or entering into it. The statute does not say so. There is no word or expression which would seem to attach any such qualification or condition to a parol lease, or contract of letting for a year, as that it shall commence immediately, and cannot be made to commence at some future day. The appellant nevertheless insists, and the reasoning of the court in Croswell v. Crane is to the same effect, that the words "from the making thereof" are to be supplied, so that these sections of the Revised Statutes must be understood as having the same qualification in that respect which existed in the old statute, allowing parol leases and parol contracts for leases not exceeding three years.