lease: though it be covenanted to make a lease according to the agreement. R. 1 Rol. 847. l. 50. Cro. El. 486. (i) So, if any man says, you shall have a lease of land in D. for twentyone years at 10l. per annum, make a lease in writing, and I will seal it; it will be a lease by parol, (k) though not in writing. Cro. El. 33. Mo. 8. (1) But (i) 1.385. Cro. Car. 207.-2. Vide the note to the next plac.-5 If, says C. B. Gilbert, the most proper form of words of leasing are made use of, yet if upon the whole there appears no such intent, but that the instrument is only preparatory and relative to a future lease to be made, the law will rather do violence to the words, than break through the intent of the parties, by construing them a present lease when the intent was manifestly otherwise. Bac. Abr. Leases 164.4 So where instruments containing words of present demise have operated as actual leases, although something farther was covenanted to be done, yet all the terms of the contract were specified and ascertained, and nothing but a more regular conveyance was wanting. 1 B. & B. (A) 1. With respect to parol leases; their duration has been limited by the statute of frauds. The first section of that statute declares the legal effect of leases, which are not in writing, by enacting that all leases, estates, interest of freehold or terms of years, or any uncertain interests, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or (by) their agents thereunto lawfully authorised by writing, shall have the force and effect of leases or estates at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect; any consideration for making any such parol leases or estates, or any former law or usage to the contrary, notwithstanding. And the second section makes the following exception of certain leases; except nevertheless all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term, shall amount unto twothirds at least of the full improved value of the thing demised.-2. The meaning of which two sections appears to be, that such leases of messuages, manors, lands, &c. as do not exceed the term of three years from the making thereof, and upon which the rent reserved to the landlord during the term amounts to two-thirds at least of the full improved value of the thing demised, are valid without writing, provided that no writing were necessary before the statute of frauds; but that all leases of messuages, lands, &c. which exceed the term of three years from the making thereof, (whatever may be the amount of the rent reserved,) or upon which, if they do not exceed that term, less than the two-thirds of the full improved value is reserved, have the force and effect only of leases or estates at will, unless put in writing and signed as the statute directs; and further that all other interests, created without writing, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, whether they are interest of freehold or terms of years, or for an uncertain duration, can only have the same effect, namely, of leases or estates at will. Phill. Evid. 457. 2 Str. 651. Say. 4. -3. The first section seems to embrace interest of every description, while the exception in the second section relates only to leases of a particular description. Phill. Ibid. Sugden's L. V. & P. 56. 59. — 4. A mere easement in lands or tenements, &c. is not an interest within the provision of the first section. Agreements, therefore, for the liberty of using a way over another person's field, or for stacking coals upon his close, or for nailing the frame-work of a sky light against the wall of his house, are valid without writing. Phill. Ibid. Say. 3. 8 East, 310. n. 5. A parol lease for three years to commence in futuro is not warranted by the statute. 12 Mod. 610. L. R. 736. -6. But a lease by parol for a year and a half, to commence after the expiration of a lease which wants a year of expiring, is warranted; since it does not exceed three years from the making. B. N. P. 177. Str. 651.-7. And if land be leased to A. for a year, and so from year to year as long as both parties shall agree, this is a lease for two years certain; and if the lessee hold on after two years, he is not a lessee at will, as the old opinion was, but for a year certain, and his lease is not determinable till that year be ended; for his holding on is an agreement to the original contract. Such executory contract too, is not void by the statute of frauds, for there is no term for above two years ever subsisting at the same time; and there can be no fraud to a purchaser, for the utmost interest that can be to bind him can be only for one year. But if the original contract were only for a year at 81. per F 2 1 annum But a covenant, that a stranger shall enjoy such land for so many years annum rent, without mentioning any time certain, it would be a tenancy at will after the expiration of the year; unless there was some evidence, of a regular payment of rent annually, or half yearly, that the intent of the parties was that he should be tenant for 8 year. B. N. P. 84. Cro. Eliz. 775. 2 Salk. 414. 1 Wils. 262.-8. Leases by parol not within the exception before mentioned, are not available as to the duration of the enterest; for the statute enacts, that they shall have the force and effect of leases or ostates at will only; but still they may, in some cases, be applied to regulate the terms, in which the tenancy subsists in other respects, as, for example, the amount of the rent, or the time of the year when the tenant is to quit. Phill. Evid. 438. — 9. Therefore where a tenant, who entered upon the premises on Lady-day under a parol lease for seven years, and was to quit at Candlemas, held over, after receiving a notice to quit on Lady-day; the notice, it was held, was irregular, and that the tenancy could only be determined at Candlemas, which was the time for quitting fixed by the agreement. 5 T. R. 471. - 10. And though the statute, after enacting that such leases shall have the force and effect of leases or estates at will, further enacts, that they shall not, either in law or equity, be deemed or taken to have any other or greater force or effect; yet these words have been understood to mean, that a a parol lease exceeding three years should not operate as a term, but that a holding under such a lease will now operate as a tenancy from year to year; because that is now construed to enure as a tenancy from year to year, which was then considered as a tenancy at will. Phill. Evid. 439. 8 T. R. 3. — 11. Though some hold, that if the party granting such parol lease do no act acknowledging the lessee as tenant, only a tenancy at will, or rather no tenancy at all, will be created by the lease, and that a notice to quit will be unnecessary. Adams, Eject. 112. citing 4 T. R. 680. 2 Esp. 717. 3 East, 449. (1) 1. Whether an instrument shall operate as a demise, or only as an agreement, depends upon the intention of the parties, to be gathered from the whole instrument, provided such intention may be effectuated without transgressing a rule of law. 3 Taunt. 65.2. And if an instrument professing to be an agreement for a lease, is in itself a transfer of possession, whether immediate or in futuro, it is a lease, though it contain a stipulation for executing a regular lease under seal. Supra the preceding plac. and Hob. 34. 2 Blk. 973. 5 T. R. 165. 167. 2 Campb. 286. 12 East, 168. 13 East, 18. 15 East, 244.-3. Secus where possession is not meant to pass under it. 13 East, 18.- 4. But the court cannot, by construction in order to avoid circuity of action, make words, which import only a covenant, a lease, when such lease would be inconsistent with the nature and quality of the estate held of the lessor. Thus where the lands are copyhold, demiseable for three years only, and there is a covenant in a lease for three years to grant for twenty-one, and that lessee shall hold for that period. 2 M. & S. 255. - 5. Which rules will now be illustrated by examples; and first by examples in which instruments have been held to operate as demises: Thus a deed that a person shall hold and enjoy the premises from seven years to seven years, for and during the term of forty-nine years,' with a proviso that it shall be void on payment of so much money, though intended only as a collateral security, amounts to a present lease. Cro. Jac. 172. 2 Mod. 8. 6 So where one by his will declared that he had made a lease to J. S. for a term of twenty-one years, paying but 20s rent, this was held a lease or demise by the will for twenty-one years, by construing the word had in the present tense, as dedi is in a deed of feoffment, in order to effectuate the testator's intention. Bac. Leases, 163.-7. So an agreement to grant a lease, whereby the lessor did let and set for twenty-one years, from a future day, is a lease in præsenti, the intention so appearing. 2 Blk. 973. — 8. And under a demise of the milk and calves of so many cows to be provided by the lessor, and to be depastured at his expence on a certain close belonging to him, exclusive of all other cattle, except a bull to be put with the cows for a certain time, the exclusive right to the herbage and feeding of the close is in the lessee. 5 T. R. 329.-9. And if the owner of premises sells them by a written instrument, and there is also a parol agreement between himself and the vendee (founded upon a sufficient consideration and other than the sale of the premises) that a third person shall be tenant to the vendee from year to year; this agreement being quite collateral to the sale, and not a condition thereof, enures to create such tenancy, though not inserted in the instrument. 4 East 29. - 10. So where the following instrument was written on an agreement stamp; A. agrees to let, and B. agrees to take, all that land, &c. for the term of sixty-one years from Lady-day next, at the yearly rent of 120%. and for and years at such a rent, does not amount to a lease, but a covenant. 1 Leo. 136. (m) So, and in consideration of a lease to be granted by the said A. for the said term of years' the said B. agrees to expend 2000l. in building within four years five houses of a third class of building; and the said A. agrees to grant a lease or leases of the said land, as soon as the said houses are covered in, and the said B. agrees to take such lease or leases, and execute a counterpart or counterparts thereof; this agreement to be considered binding, till one fully prepared can be produced; it was held to be a lease. 12 East, 168.-11. So likewise was an instrument which ran thus; A. agrees to let and also upon demand to execute to B. a lease of certain lands; and B. agrees to take and upon demand to execute, a counterpart of a lease of the said lands for a certain term at a certain rent; the lease to contain the usual covenants, and the agree ment to bind until the said lease be made and executed. 15 East 244.- -12. So lastly, were these words in an instrument, 'be it remembered that A B. hath let and by these presents doth demise,' though the instrument contained a further covenant for a future lease. 5 T. R. 165.-13. Next of examples in which instruments have been held not to operate as demises : where a lessee of tithes agreed with the owner of lands, for certain collateral considerations, not to take tithes in kind from the tenants of the lands for twelve years, but to accept a reasonable composition not exceeding 3s. 6d. per acre, it was held to be no lease, 415.-14. So likewise where one made a lease for life, et provisum est, that if the lessee die within sixty years, then his executors and assigns should enjoy the land in his right for so many years as should be be hind of the sixty years from the date of the lease; this was held to be a covenant only, and no lease. Bac. Abr. Leases K.-15. So the following articles were construed to be an agreement only: A. doth demise his close to S. to have it for forty years; and a rent was reserved with a clause of distress; upon which articles a memorandum was also written, that the articles were to be ordered by counsel of both parties, according to the due form of law. Noy, 128.-16. So was a writing, whereby A. agreed to let and B. to take premises, upon which he was to enter immediately, at a certain rent, the payment of which was not to commence until Lady-day next; and leases with the usual covenants were to be executed on or before next Michaelinas. 1 T. R. 735. -17. So was an instrument containing words of present demise of a copyhold, to commence at the death of B., with a stipulation by the land owner, that in that event, and on the other party becoming entitled to the premises, he would procure a licence from the lord; and for this reason, that the stipulation for procuring the licence shewed, that the parties meant to guard against the forfeiture, which to hold the instrument a lease would be incurred. 2 T. R. 739.-18. And where A. being seised of freehold and copyhold lands, demised by indenture the whole at one entire yearly rent; habendum as to so much as was freehold for twenty-one years, and as to so much as was copyhold, for three years; and then followed covenants; and then the indenture reciting that it was thereby agreed that for the said rent, and under the said covenants the lessee might hold the said premises, as well copyhold as freehold, for twenty-one years, to commence as aforesaid as if that demise had been so made, but that the copyhold was not grantable for any longer term than three years successively, the lessor covenanted three months before the expiration of each successive three years to execute under like covenants and without any increase of rent, a new lease of copyhold for three years, to commence after the expiration of the former term; and it was agreed,' that until such new leases were executed, the lessee should hold and enjoy for twenty-one years; it was held, that this covenant &c. for a new lease was only a covenant, and did not operate as a lease conveying to the lessee an indefeasible interest for twenty-one years it was the lessor's intention not to transgress the custom, which he would have done had he granted a lease for more than three years. 2 M. & S. 255.-19. So an agreement that A. shall enjoy, and I engage to give him a lease in the premises from Whitsuntide next, was held to be no demise. 5 T. R. 163.-20. So where a lessor covenanted to give the lessee of a messuage free ingress and egress through a certain passage into a yard, with the free use of the pump in the said yard, jointly with the lessor, whilst the same should remain there, paying half the expence of keeping it in repair; this was held not to be an absolute demise of the use of the pump; but that the lessor might remove it at pleasure. 3 Smith, 175. 7 East, 116.-21. So an instrument in which the words were, agreed this day to let (m) Cro. Jac. 172, my So a covenant, that he shall permit the covenantee himself to hold the land for so many years, does not amount to a lease: for it sounds only in covenant. R. 1. Rol. 848. l. 5. (n) So, an article, that he is content A. shall have a lease for six years, that the rent shall be 101. &c. for it appears to be only instructions for a lease. R. 1 Rol. 848. 1. 10. So a defeazance of a recognizance, that A. shall convey an advowson to B. and that B. shall alway quietly enjoy it, does not amount to a present lease. (0) R. Co. Ent. 85. a. So my house to B.' for a certain term, a clause to be added in the lease to give my son a power,' &c., was considered an agreement only. 6 East, 530.- 22. So likewise was an instrument setting forth the conditions of letting a farm, the term to be from year to year, and the lands to be entered upon at a period fixed, &c., and that a lease was to be made upon these conditions with all usual covenants, at the foot of which instrument the intended lessee_wrote, I agree to take the premises at the rent of, &c. subject to the covenants. 13 East, 18.-23. So an instrument not under seal, whereby A. agrees to let to B. certain premises; to hold from a day past; at a specific rent ; under all usual covenants and agreements, as between landlord and tenant, where the premises are situate; with stipulations for certain acts to be done by both parties, amongst others, that out of the rent, a proportionate abatement should be made in respect of certain excepted parts of the premises,' was held to be only an agreement. 3 Taunt. 65.-24. So in the case of a paper entitled memorandum of an agreement,' between A. & B. and signed by them, expressing, that in consideration of 401. A. doth agree to let,' and B. doth agree to take a messuage, at 40l. per annum rent; and it is farther agreed,' that A. 'shall not raise the rent nor turn out' B. so long as the rent is duly paid quarterly, and he does not sell any article injurious to A. in his business; it was considered, that though the terms did not exclude the construction of actual demise, yet the import of the whole looking to some future instrument, and more permanent interest than from year to year, a demurrer to a bill for specific performance against A., who had succeeded in an ejectment, was over-ruled. 14 Ves. 156, 409.-25. And lastly, where A. by an instrument demised or agreed to demise lands to B. for three lives (not named) at a yearly rent, and further agreed that leases should be perfected at the request of either party; as an essential part of the contract, the nomination of the lives, was wanting, this it was held, could not operate as a lease for three lives, nor as a lease for the life of a tenant, that not being the intention of the grantor; but merely as an executory agreement for a lease. 2 B. & B. 68. (n) 1. Quere. — 2. The words shall enjoy,' when unqualified pass an interest, 5 T. R. 163. (0) 1. As to implied tenancies; a general occupation of lands enures now as a tenancy from year to year, determinab's only by a regular notice to quit. 8 East, 165.-2. And the general rule is, that if a tenant for a year, hold on with the landlord's consent, after the term has expired, the lease is tacitly renewed for another year. 1 T. R. 159. 5. To which rule the case of lodgings is an exception. Ibid. - 4. So if, after the expiration of a tenancy determined by the effluxion of time, or the happening of a particular event, the reversioner or remainder man receive rent qua rent, from the person in possession, or in any way acknowledge him as tenant; a tenancy from year to year will be thereby created, subject to the conditions of the original lease, and determinable only by a regular notice to quit, 1 H. Bl. 97. 5. Where, however rent is not paid and received as between landlord and tenant, but upon some other consideration, no tenancy from year to year will be created thereby, nor will a notice to quit be necessary. 3 East, 260. 10 East, 261.-6. The payment of a customary rent for copyhold premises, is not a payment as between landlord and tenant; and if the tenant hold such premises by a title or tenure, which is not supported by the custom of the manor, the receipt of the quit-rent from him by the lord, will not create a tenancy from year to year. 3 East, 260.-7. And where tenant in tail received an ancient rent which was but trifling when compared to the real value of the premises, and which had been reserved under a void lease granted by the tenant for life, under a power; it seems that a tenancy from year to year was not thereby created, though some notice to quit was necessary to make the party a trespasser. 10 East, 261.-8. And where a remainderman on the death of the tenant for life, gave notice to the tenant in possession under a lease granted by the tenant for life, but void against the remainder-man, to quit at the So a covenant to levy a fine, upon condition, that if A. shall pay 100%. within thirteen years to B. it shall be to the use of A; and in the mean time to the use of B. and that B. shall enjoy it for thirteen years, does not amount to a lease to B. if the fine be not levied. R. 2 Cro. 172. 1 Rol. 847. U. (G 2.) By what persons. Tenant (p) in (q) fee simple may make leases, without limitation, or restraint. So tenant in tail may make a lease for his own life. And now, by the stat. 32 H. 8. 28. he may make leases for three lives, or twenty-one years. Vide ante, (B 32.)-post, (G 4, 5.) So, by the same st. husband and wife may make leases for three lives, or twenty-one years, &c. Vide Baron and Feme, (G 3.) (G 3.) By spiritual persons, &c. at common law. So, by the common law, spiritual or ecclesiastical corporations might make leases for lives, or years, without limitation, or restraint, concurrentibus iis que in jure requiruntur. Co. L. 44. a. 2 Inst. 457. (r) So, a master and fellows of a college, hospital, &c. Co. L. 44. a. the end of six months, and subsequently to the giving of the notice, but before its expiration, received a quarter's rent, accruing after the death of the tenant for life, it was ruled by Blackstone J. that the previous notice to quit rebutted the presumption of a tenancy from year to year, raised by the acceptance of the rent. 1 T. R. 161. -9. And where a tenancy has expired, a new tenancy is not created merely by the landlord's neglecting to take possession. 8 East, 358. 10. Nor will a mere treaty for a new lease be a sufficient acknowledgement to constitute a tenancy from year to year, although the tenant should continue in possession during the treaty. 2 Esp. C. 717. 2 Camp. 505.-11. And a notice to quit the premises which you hold under me, your term therein having some time since expired,' does not recognize an existing tenancy. 3 Taunt. 54. — 12. Possession and payment of rent under a written, but invalid agreement, to let lands at a certain rent, and that the lessor should not turn out the tenant so long as he paid the rent, was held to create a tenancy from year to year. 8 East, 165.-13. Where lands descended to an infant, with respect to whom the tenant in possession was a trespasser, and an ejectment was brought by the infant, and compromised by his attorney, although after the infant was of age he accepted no rent from the tenant, nor in any wise confirmed the agreement which his attorney had entered into, it was held that he could not then maintain a second ejectment without a regular notice to quit, provided there was no fraud or collusion in the first instance, because the compromise having been entered into for his benefit, he ought to be bound by it. 2 Esp. C. 528. (p) 1. All who are capable of alienating their property, or of entering into contracts respecting it, may make leases.-2. And all estates but those in fee simple being conditional, any smaller interests carved out of them will expire with the determination of the estates upon which they are dependent, unless the tenant who creates them has been expressly empowered to charge the land in futuro.- 5. But a fee simple is accounted the absolute property of the feoffee, which he may charge and burthen as he thinks fit. So that although it shall happen to revest from any cause whatever, yet shall the charges with which he (previously) has thought fit to burthen it, still remain. 21 H. 6. Trin. 8. p. 55. (q) 1. A tenant for years may lease or assign his term. 1 East. 598. 2. But so cannot a tenant at will. 1 Inst. 57. a. Cro. Eliz. 156. Dougl. 283. 3. Nor can a tenant at sufferance. (7) Shep. Touch. 281. |