date which one cannot reduce to certainty; and, of course, to lease for a human life would be attempting to create a freehold. But I may make a lease for so many years, ten, for instance, provided another shall so long live; for here there is a certain period fixed, beyond which the term cannot last, though it may end sooner.1 Leases like the foregoing are not likely to be made frequently at the present day; but the illustrations will aid in fixing important principles in the reader's mind. And it may be noted, in passing, that the word "term" does not signify the time specified in the lease merely, but the estate and interest that actually passes by the lease; so that, if a lease for five years were cancelled and surrendered at the end of two years, it might be said that the term expired before the time.2

§ 25. Term of Lease as affected by Statute of Frauds; Written Lease required, etc. - The Statute of Frauds, 29 Car. II. c. 3 (whose provisions, not without local modifications, have been generally adopted as part of the jurisprudence of this country), affects the law of leases very considerably. It declares, substantially, that leases, estates, or terms of years, or any uncertain interests in lands, made or created by livery only, or by parol, and not put in writing and signed by the party making the same, or his agent, shall have the force and effect of leases or estates at will only; an exception being made in favor of leases not exceeding the term of three years, where the rent reserved shall amount to two thirds, at least, of the full improved value of the land. And, further, that no lease or estate, either of freehold or term of years, shall be assigned, granted, or surrendered, unless in writing.3 In most parts of this country the statute exception in favor of parol leases is for a less period than three years; one calendar year being the limit prescribed in New York and some other States, while in others a parol lease is deemed a tenancy from year to year, or from term to term, or, as local statutes may expressly provide, an estate at will only.1

1 Co. Lit. 45, 46; 2 Bl. Com. 143 and n.

2 Co. Lit. 45; 2 Bl. Com. 144.

8 29 Car. II. c. 3, §§ 1, 2.

4 The English statute, as re-enacted in New York, requires the agent

So, too, the Statute of Frauds provides that every agreement not in writing and signed by the party to be charged therewith, or his authorized agent, is void, which by its terms is not to be performed within one year from the making thereof. Under this clause, which many of our States adopt, it is held that a verbal agreement to lease must commence from the making of the agreement, and not from a future day; though, in New York, where the language of the statute is somewhat different, a parol lease for one year, to commence in futuro, was not long ago upheld.1

What was the object of the Statute of Frauds in thus changing the common law? A tenant for years, at the common law, was, as we have seen, one who held for a certain term; and, notwithstanding the technical expression, this term might be for less than a year, as for a half-year, quarter, or month, or even a few days, provided only it were for a time certain. But a tenant at will, on the other hand, held for an uncertain period; his lease lasting while his landlord and himself jointly willed it so, and no longer. While the latter tenancy often arose by implication, it might also be determined by an act inconsistent with the further duration of the estate, whether such act were performed by the landlord or by the tenant.3 Tenancies at will were therefore

who signs to be "authorized by writing; but in some of our States these words are omitted. See Story Agency, § 50. In other respects the New York statute differs from the English; particularly in authorizing parol leases for one year only, instead of three; being followed in this respect by California, Illinois, Virginia, Wisconsin, and many other States. New Jersey, Maryland, and North Carolina follow the English statute in respect to time, though adding nothing as to the reservation of rent. In Massachusetts, all estates and interests in land created without writing are declared to be estates at will only, while in Illinois, Iowa, and most of the south-western States, parol leases for a year are valid; and those

in excess of that period may prevail against the grantor, though not against third parties. See Browne, Stat. Fr. Appendix; Taylor's Landlord and Tenant, 8th ed. §§ 28, 29; 4 Kent Com. 95, and notes; Nesham v. Selby, L. R. 7 Ch. 406; 1 Stimson Am. Stat. Law, § 2002. The latest code in each State should be consulted on such a point.

1 Smith Landl. and Ten. 62-65; Taylor ib. § 30; Rawlins v. Turner, 1 Ld. Raym. 736; 64 N. Y. 518; 5 N. Y. 463. See Delano v. Montague, 6 Cush. 42; Kelly v. Terrell, 26 Ga. 551.

22 Bl. Com. 140; Bac. Abr. Leases, I.; Smith Landl. and Ten. 14, 15; Taylor ib. §§ 54-58.

3 Smith Landl. and Ten. 16, 17;

found to be a very inconvenient species of estate, and the courts would not favor them, inasmuch as they were too precarious, each party being at the mercy of the other; and so the judges seized upon every favorable opportunity of construing such an estate into a tenancy for years; or, at least, of ruling that the parties had manifested their intention to continue the tenancy until a reasonable notice to determine it should be given by one or the other. The circumstance that a yearly rent was paid afforded the presumption that the parties had intended to create a yearly tenancy rather than one strictly at will; and accordingly it became settled law, that, if a party entered into or remained in possession under circumstances which would constitute him a tenant at will, the payment or settlement in account of a yearly rent rendered him a tenant from year to year, and entitled him to a regular and formal notice to quit. Now, a tenancy by express agreement may be either by word of mouth, by simple writing, or by deed; and so with any other contract. The great object of the Statute of Frauds was to discriminate in favor of contracts in writing, or, to use a common expression, to make men put their bargains into black and white,— so as to furnish plain evidence of the mutual intent of parties in their agreements; and the policy of this statute is directed to such agreements as involve large sums, or are necessarily complicated in terms, or concern others besides the original parties, or run for a long period. As to tenancies, its design was, in the first place, to get rid of the prevailing perplexity and confusion, where lands were let out for a long time, and involved large pecuniary sums, by requiring such leases to be in writing. With short terms it did not greatly interfere, but left them pretty much as before.

§ 26. The Same Subject; Whether a Seal is Essential; Effect of Term not within Statute. It should be added, that while the statute of Charles the Second sanctions leases without seal as well as by deed, if only the agreement be in writing, a later English statute, passed in the reign of Vic

Doe v. Turner, 7 M. & W. 226; Doe v. Price, 9 Bing. 356.

1 Smith Landl. and Ten. 20-22; Doe v. Watts, 7 T. R. 85.

toria, requires leases to be under seal, except in tenancies where no writing at all is needed. And it is likely that some of our own American local statutes are expressed in language which should be construed to the same effect.

We may observe, further, that terms which are without the Statute of Frauds are not made void thereby, but are allowed to operate simply as estates at will; for which reason the rule of construction has been established that, like other estates at will, they are capable of being turned into tenancies from year to year, by the payment of rent or other circumstances indicating the intention of the parties that they shall be so considered.2 But in this country, and at the present day, rents are usually payable quarterly or monthly, in which case an estate at will would be terminable at an interval comparatively short.

§ 27. Form of Lease. No particular form of words is necessary to constitute a lease. Coke says that the word dedi is sufficient. The old form of words is "demise, grant, lease, and to farm let;" but any language is sufficient which shows that the one intends to dispossess himself of the premises, and the other to enter under him for a determinate time. On the other hand, even though the most proper technical words should be employed, yet if the intention to be gathered from the instrument on the whole were that of a preliminary arrangement for some future lease, such an instrument would be treated in the courts, not as a lease, but as an agreement for a lease. A decision by Lord Kenyon illustrates the lat ter principle; where formal words of demise were followed. by the expression, "I engage to give him a lease," and the language otherwise indicated that the parties had contemplated executing another instrument at some future time.5

18 & 9 Vict. c. 106, § 103; Doe v. Moffatt, 15 Q. B. 257.

2 Smith Landl. and Ten. 22, 65, 66; Lee v. Smith, 9 Ex. 662; Taylor Landl. and Ten. 8th ed. §§ 56, 58; Lord Bolton v. Tomlin, 5 A. & E. 856. 8 Co. Lit. 301 b.

Landl. and Ten. 68, 69; Taylor ib. § 159, and cases cited; Bright. Fed. Dig., "Landlord and Tenant," 544.

Roe v. Ashburner, 5 T. R. 163. See Smith Landl. and Ten. 70 et seq.; Taylor ib. 8th ed. § 37 et seq., and cases cited; Kidd v. Boone, L. R. 12

4 Bac. Abr. Leases, K; Smith Eq. 89.

If it is a present lease, on the other hand, as the instrument purports, parol evidence cannot be admitted to change its force and effect. The lines of demarcation often run together, so as to make it difficult to determine whether an instrument belongs to the one class or the other; and judicial instruction may vary according to the special circumstances; but the principles are well established. The term "grant includes "demise," or "lease." 2

Some portions of leases, as they are ordinarily set forth, are essential, others are not. The date of a lease is no part of its substance; and not only are omissions frequently supplied, but the time of delivery may be shown to be, as indeed it frequently is, different from that stated in the instrument.3 So, too, the courts are liberal, where general errors of description are to be considered, in admitting explanations; for instance, where the names of parties are wrongly spelled or there is a misrecital of some former instrument. But the omission of the lessee's name in the body of the instrument, or any other material error, will vitiate a lease. The premises demised (or let) ought to be accurately described and identified; though not always minutely, for the law requires only that the premises be ascertained with reasonable certainty. And if the tenant enters into possession he cannot object to his covenant liability on the ground of a deficiency of description.

§ 28. Rent or Recompense under a Lease. The periodical return which the tenant makes to his landlord, or the lessee to the lessor,- by way of compensation for the use of the premises, is familiarly known as the rent. This compensation is not always in money; for specific goods may constitute a valuable consideration to support the lease; while, as in the analogous instance of a bailment, no consideration is requisite

1 Kline v. McLain, 33 W. Va. 32; Shaw v. Farnsworth, 108 Mass. 357; Tiedeman Real Prop. § 179.

2 Darby v. Callaghan, 16 N. Y. 71. 3 Taylor Landl. and Ten. § 148; Jackson v. Schoonmaker, 2 Johns. 230; Steele v. Mart, 4 B. & C. 272.

4 Taylor Landl. and Ten. §§ 150152; Foot v. Berkley, 1 Vent. 83; Davidson v. Cooper, 11 M. & W. 794; Chauncey v. Arnold, 24 N. Y. 330. 5 Taylor Landl. and Ten. § 160; Dingman v. Kelly, 7 Ind. 717.

Bulkley v. Devine, 127 Ill. 406.