The term of three years for which a parol lease will be good, must be three years only from the time of mak ing it. And though a future com No lease by parol will be good, under these provisions, which imports to convey an interest for more than three years,(92) which three years must be reckoned from the time of making the same. And, therefore, it was ruled by Lord Holt, in the case of Rawlins v. Turner,(a) that a lease for three years, of land, to be good without deed, must be for three years, to be computed from the time of the agreement, and not for three years to be computed from any day after. But leases by parol for less than three years it is granted from the time of making them, though they be granted to comso as to have Thus, mence at a future day, are clearly not within the statute. mencement, in Riley v. Nicks,(6) the plaintiff declared, that on the 24th day yet if it do of February, 1723, she demised to the defendant a chamber, a not comprise more than cellar, and half a shop, to hold from Lady-day then next, for a quarter of a year, and so from quarter to quarter, so long as both parties should please, at 51. per quarter. It was objected, that this lease being to commence at a future day, was but a lease at will, since the statute of frauds. The Chief Justice at first thought it a good objection, but upon farther consideration, he was of opinion, that the exception *was not confined to leases that were to commence from the time of the making, but was general as to all leases, that were not to hold for above three years from the making; and the plaintiff had a verdict accordingly. three years, reckoned from the time of mak ing it, it is If a tenant from year to year holds for above three years, his interest If a lease be made for three years, and so from three years to three years, this is a lease for six years, and so void by the statute unless it be in writing,(c) and a lease for one year, and so from year to year for or during 40 years, is a lease for the term of 40 in reckoning years.(d) But if a parol lease be made de anno in annum quamdiu backward is ambobus partibus placuerit, this is adjudged to be a lease only for one year certain,(e) and that every year after, it is a springing interest arising upon the first contract and parcel of it, so that if the lessee occupies 10 years, these years, by compu considered as an entire lease for the whole time of his actual holding; but still each tation from the time past, make an entire lease for so many (a) 1 Lord Raym. 736. (b) Strange, 651, coram Raym. Ch. J. (c) Plowd. 273. (d) Id. ibid. Bro. tit. Leases, 49. But it is otherwise where it rests in covenant to grant a fresh term at the end of the first, and so on. (e) Legg v. Strudwick, 2 Salk. 414. (92) But still an agreement for a lease of any duration must, it should seem, be invalid, if not in writing, and signed according to the 4th clause of the 4th section; unless it can operate as a present demise. year is a new springing in terest upon the first con years; and if rent be in arrear for one part of one of those years, succeeding and part of another, the lessor may distrain and avow as for so much rent in arrear upon one entire lease, and need not avow as for several rents due upon several leases, accounting each year a new lease ;(ƒ) for it has been adjudged, that after the commence- prospectively there nement of each new year, it becomes an entire lease certain for the ver was any years past, and also for the year entered upon ;(93) *so that nei- lease for (ƒ) Birch v. Wright, 1 T. R. 380. (93) The last editor of Bacon's Abridgment has added a sensible and pertinent note on this subject. Vide Bac. Abr. tit. Leases, L. 4, part whereof is here extracted for the reader. "It is now clear", says that Gentleman, "that a lease for a year, and for such further term as the parties shall agree upon, or from year to year as long as it shall please both parties, is, with a view to its present extent, a lease for a year certain, and no more; though with a view to the time which has elapsed, or the number of years which the tenant has occupied, it is considered as an estate for all that time, including the current year. In the case of Agard v. King, Cro. Eliz. 775, where the court are made to say, that such a lease was a lease certain at first for two years; it is to be remembered, that they were not considering the present, but the past estate which the tenant had: what they say, therefore, must be understood with reference to that, and to import nothing more than it was at first, that is, upon the expiration of the two years, a lease for these two years, whatever it might be as to the third year which the tenant had entered upon, and upon which only the question in that case arose. And so in the case of Bellasis v. Burbridge, referred to in Salk. 413, and fully reported in Lutwich 213, the lessee under a demise for a year, and so on from year to year, &c. had occupied one year and part of another; and the court said that this was a good lease for two years at least; that is, that the tenant having continued the occupation part of another year, the lease was thereby become a good lease for that year; not that the lease by the terms of it was originally, and in its creation, a lease for two years certain. And, notwithstanding the puzzle and contrariety of opinions in the books, with respect to these running leases, the law is now considered as settled agreeably to the case of Legge v. Strudwick. They are leases for one, two, or more years, according to the form of the lease, dependent for their further continuance upon the will of the parties. If it be the will of the parties that they should have a further continuance, (and that such is their will, the law will presumé, unless the contrary be evidenced by a regular half-year's notice to quit, given by one to the other) the tenant so continuing in possession, is not a mere tenant at will, but a tenant for years: it is the will of the parties thas tract, so that more than a year; such case, therefore, is within the excep tion, and good. * [243] *[244] A lease for more than three years, enures as a And ther party can determine it before that year is run out. It is to be observed, that though by the statute of frauds it is enacted, that all leases by parol, for more than three years, shall have the effect of estates at will only, yet such a lease, by the tenancy from construction of the courts, enures as a tenancy from year to year, year to year. and requires, therefore, a regular notice to determine the interest as in other similar holdings. Thus, in the case of Clayton v. Blakey,(i) an action had been brought against a tenant for double rent, for holding over after the expiration of his term, and a regular notice to quit. The first count of the declaration stated a holding under a certain term, determinable on the 12th of May then last; and other counts stated a holding from year to year, determinable at the same period. It appeared in evidence, that the defendant had held the premises for two or three years under a parol demise for 21 years from the day mentioned, to which the notice to quit had reference. On the statute of frauds, it was contended at the trial, that the holding should have been (g) 2 Salk. 414. (h) Keble 16. (i) 8 T. R. 3. they should continue the tenancy for another year: his precarious interest is for such further term become certain, but he has still the same kind of estate which he formerly had. stated, according to the legal operation of it, as a tenancy at will; and that, as there was no count adapted to that consideration of it, the plaintiff ought to be nonsuited. The judge, how ever, considering that it amounted to a tenancy *from year to [245] year, overruled the objection, and the plaintiff obtained a verdict. And, upon a motion afterwards made to set this verdict aside, on the ground of a misdirection, Lord Kenyon, Ch. J. with whom the rest of the court agreed, held that the direction was right: "for the meaning of the statute was, that such an agreement should not operate as a term; but what was, when the statute was made, considered as a tenancy at will, has since been properly construed to enure as a tenancy from year to` year." But though the lease be void by the statute of frauds, as to the And though duration of the term, it is to be remembered, that in other spects the lease may be regarded as having an operation, at least re the lease itself be void under the statute, yet it may regu substituted as far as its terms are applicable to a tenancy from year to year. So that if land is let for seven years by parol, and the landlord late the agrees that the tenant shall enter at Lady-day, and quit at Can- terms of the dlemas, though such verbal lease is void by the statute of frauds, interest. as to the extent of interest affected to be granted, yet the landlord can only put an end to the tenancy at Candlemas. An ejectment() was brought on the demise of T. Rigge. At the trial it appeared, that in January, 1790, Wilkinson, as agent for the lessor of the plaintiff, let the farm in question, called Hague's farm, to the defendant for seven years, by parol. The defendant was to enter when the former tenant quitted, viz. on the land at Old Lady-day, and the house on the 25th of May follow. ing, and he was to quit at Candlemas. The defendant entered accordingly, and paid rent. A notice to quit at Lady-day ensuing was served on the 22d of September, 1792. And it was contended, that as the agreement for seven years was void by the statute, it being by parol, the defendant must be considered as tenant from year to year, each year commencing from Ladyday when he entered, and that, consequently, the notice to quit at Lady-day, served more than half-a-year before, was regular. But Lord Kenyon was of *opinion, that though the agreement was *[246] void by the statute of frauds, as to the duration of the lease, it must regulate the terms on which the tenancy subsists, in other A lease which would not have been good by parol,at common law, is not now good by being in writing merely. What leases were good by parol, and what were required to be by deed, at common law. *[ 247 ] Of the difference between the respects, as to the rent, the time of the year the tenant is to quit, &c. So, said his Lordship, where a tenant holds over after the expiration of a lease, without having entered into any new contract, he holds upon the former terms. In this case it was agreed, that the defendant should quit at Candlemas ; and though the lease was void as to the number of years, for which the defendant was to hold, yet if the lessor chose to determine the tenancy before the expiration of the seven years, he could only put an end to it at Candlemas. But it seems proper to observe generally, that where a lease would not have been good by parol at common law, it will not be effectual, though in writing, since the statute of frauds, if it is not also sealed and delivered. Thus, although since the statute a term for any number of years may be created by writing only without deed, yet if there is a lease actually in being, another lease cannot be made of the reversion without a deed poll, or indenture.(94) But we are to be understood to advert here to a reversion in the strict idea thereof, as drawing after it the rents and services, to the grant of which description of interest a deed was always essentially necessary. Writing, therefore, without both scaling and delivery, will be of no avail, since the statute, to pass out of the lessor such reversion, or reversionary interest for any term of years, whether few or many. But to pass what is properly called an interesse termini, or future interest, to commence at the expiration of a subsisting term, a writing only will be now sufficient, as a verbal grant or demise would have been at common law.(?) *Thus, also, if at this day, there being a subsisting lease, the lessor were to make a lease in writing, without sealing and delivery, of the same premises to another, for a term exactly cominteresse ter-mensurate with the existing interest, such second lease would be mini, and the strict rever- purely an abortion, for such lease could not have been rendered sion. effectual by parol only at common law, there being no future interest or interesse termini to pass; and, as a reversion, the lessor (7) Vide Bro. tit. Leases 48. Plowd. 421, b. 422, 432, 521. Cro. El. 60. (94) To effectuate which lease before stat. 4 & 5 Ann, c. 16, the attornment of the first lessee was also necessary. |