33. Post Sec. 49.

34. In Moorehead v. Watkyns, 5 B. Mon. (Ky.) 228, in speaking of the statute prohibiting an action on an oral lease, and of that invalidating an oral lease for a term greater than a certain number of years, it is said that the first was intended to apply to "executory contracts" and the other to "executed contracts," but that the courts have indiscriminately applied the first to both classes of cases.

35. See, e. g., Bain v. McDonald, 111 Ala. 269, 20 So. 77; Wick-son v. Monarch Cycle Mfg. Co., 128 Cal. 156, 79 Am. St. Rep. 36, 60 Pac. 764; Garber v. Goldstein, 92 Conn. 226, 102 Atl. 605; Wheeler v. Frankenthal & Bro., 78 111. 124; James v. Smith, 3 Ind. T. 447, 58 S. W. 714; Boone v. Coe, 153 Ky. 233, 51 L. R. A. (N. S.) 907, 154 S. W. 900; Delano v. Montague, 58 Mass. (4 Cush.) 42; having no application to leases.36 That the latter view is correct would seem to be-clearly apparent. A lease being primarily a conveyance and not an executory agreement, such an expression as "not to be performed" is inapplicable thereto, nor can an action be' brought upon a conveyance of any sort. Even were the covenants of the lease invalid under this clause, this would be no reason for invalidating the lease as a conveyance vesting an estate in the lessee. It may be remarked that if the language of the fourth section of the English statute were sufficient to invalidate a lease which may extend more than a year from the making thereof, the exception, in the second section of that statute, of leases for not over three years, is utterly futile, as applied to a lease for over a year.

- (b) Short time leases. The exception in the second section of the English Statute of Frauds, as regards leases not exceeding the term of three years from the making thereof, has occasionally been retained, in a more or less modified form, in states which have in effect re-enacted the first section of that statute.37 Ordinarily, however, the statutes of the various states except from their operation leases for one year only, and some make no exception. The exception in the English statute, requiring the three years to be computed from the date of the making of the lease, has the effect of invalidating a lease for less than three years if, by reason of the fact that the term is to commence in the future, it will not come to an end within three years will cannot thus be converted into a tenancy from year to year or other periodic tenancy.43

Brosius v. Evans, 90 Minn. 521, 97 N. W. 373; White v. Holland, 17 Ore. 3, 3 Pac. 573.

36. Higgins v. Gager, 65 Ark. 604, 47 S. W. 848; Sears v. Smith, 3 Colo. 287; Railsback v. Walke, 81 Ind. 409; Stein v. Nysonger, 69 Iowa 512, 29 N. W. 433; Whiting v. Ohlert, 52 Mich. 462, 50 Am. Rep. 265, 18 N. W. 219; Ward v.

Hasbrouck, 169 N. Y. 407, 62 N. E. 434; McCroy v. Toney, 66 Miss. 233, 2 L. R. A. 847, 5 So. 392; Hayes v. Arrington, 108 Tenn. 494, 68 S. W. 44; Richards v. Redel-sheimer, 36 Wash. 325, 78 Pac. 934.

37. Tiffany, Landlord & Tenant Sec. 25d.

Rosenblat Perkins

761, 23 N. E. 298; Rosenblat Perkins, 18 Ore. 156, 6 L. R. A. 257, 22 Pac. 598; Coffman v. Sam-mons, 76 W. Va. 13, 84 S E. 1061.

48. Gibboney v. Gibboney, 36 U. C. Q. B. 236.

49. Griswold v. Town of Bran-ford, 80 Conn. 453, 68 Atl. 987; Morrill v. Mackman, 24 Mich. 279. 9 Am. Rep. 124; Steketee v. Pratt, 122 Mich. 80, 80 N. W. 989; Packard v. Cleveland, C. C. & St. L. R. Co., 46 111. App. 244; Williams v. Deriar, 31 Mo. 13; Stover v. Cad-wallader, 2 Penny. (Pa.) 117; Mades v. Howaldt, 46 Wash. 450, 90 Pac. 588.

In many of the states there is no provision that a lease within the statute shall be effective to create only year arises in the particular case without reference to whether any rent is paid,46 and in several it is decided that the lessee's entry and payment of rent creates a tenancy from year to year, without any suggestion that his payment of rent, if not with reference to a yearly period, would create a periodic tenancy of a different sort, from month to month for instance.47 The tendency, thus indicated, on the part of the courts, to create a fixed rule that possession under a lease which is void by the Statute of Frauds shall create a periodic tenancy of a particular character, without reference to the circumstances accompanying the possession, which alone justify his being regarded as a periodic tenant of any sort, is unfortunate.

Brosius v. Evans

Brosius v. Evans, 90 Minn. 521, 97 N. W. 373; White v. Holland, 17 Ore. 3, 3 Pac. 573.

36. Higgins v. Gager, 65 Ark. 604, 47 S. W. 848; Sears v. Smith, 3 Colo. 287; Railsback v. Walke, 81 Ind. 409; Stein v. Nysonger, 69 Iowa 512, 29 N. W. 433; Whiting v. Ohlert, 52 Mich. 462, 50 Am. Rep. 265, 18 N. W. 219; Ward v.

The Quantum of Estates

The question whether the reservation of a periodic rent in connection with the invalid lease will, apart from payment thereof, be regarded as evidence that the lessee taking possession is a periodic tenant, has seldom been the subject of discussion. There is a Canadian decision explicitly to the effect that the provision for a periodic rent does have this effect, regardless of whether rent is actually paid,48 and there are a few cases in this country which indicate, with more or less clearness, a similar view.49 Conceding that the validity of the reser vation of rent or covenant for the payment thereof is not affected by the invalidity of the lease, such a reservation or covenant would clearly appear to be effective for the purpose of bringing the case within the rule, hereafter referred to50 that a letting for no named period, a "general" letting, creates prima facie a periodic tenancy, if a periodic rent is reserved.

46. Larkin v. Avery, 23 Conn. 304; Morehead v. Watkyns, 44 Ky. (5 B. Mon.) 228; Nash v. Berk meir, 83 Ind. 536; Brant v. Vincent, 100 Mich. 426, 59 N. W. 169; Cunningham v. Roush, 157 Mo. 336, 57 S. W. 769; Lounsbery v. Snyder, 31 N. Y. 514; Clark v. Smith, 25 Pa. St. 137; Duke v. Harper, 14 Tenn. (6 Yerg.) 280, 27 Am. Dec. 462.