Abbildungen der Seite
PDF
EPUB

-cept a rescission and hold the lessee liable for the rent. Becar v. Flues, 64 N. Y. 518.

Statute of Frauds.-For the operation of the statute of frauds upon parol leases, see FRAUDS, STATUTE OF, vol. 8, p. 664 et seq., in connection with which the following cases may be examined: Alabama.-A verbal contract for the rent of a house for the term of one year to commence at a future day is void under the statute of frauds. Parker v. Hollis, 50 Ala. 411.

In Alabama under the statute of frauds (Code, § 212, subd. 1, 5) a parol agreement for a lease of land for the term of one year to commence in future is void. Oliver v. Ala. Gold Life Ins. Co., 82 Ala. 417.

A verbal lease or an unsigned writing in the form of a lease granting the right to enter on lands and mine ore for the term of two years is void under the statute of frauds and cannot amount to more than a parol licence, which is revocable. Hammond v. Winchester, 82 Ala. 470.

Missouri.-Tenancies at will may be created without writing, and are not within the Missouri act regulating conveyances. Murray v. Armstrong, 11 Mo. 209. A parol lease for a term of years, though by the Missouri statute of frauds declared to create a tenancy at will, has the effect of creating a tenancy from year to year. Kerr v. Clark, 19 Mo. 132.

The Missouri statute of frauds provides that all leases, etc., made by parol shall have the force and effect of leases at will only. Notwithstanding this statute the doctrine in Missouri is, that after the expiration of a written lease a tenancy from year to year may arise by verbal permission to hold over and receipt of yearly rent. Hammon v. Douglas, 50 Mo. 434.

New Jersey.-A parol demise for a longer term than three years is void as a lease for such term, but it operates -as a demise from year to year. Drake 7. Newton, 23 N. J. L. (3 Zab.) III.

New York-A parol lease of lands for one year to commence in futuro is void, being a contract relative to lands and a contract not to be performed within a year from the making thereof. Crosswell v. Crane, 7 Barb. (N. Y)

191.

A parol lease for a term of one year is not void by the statute of frauds, .although the term is not to be com

A lease void

menced till a future date. by the New York statute of frauds is deemed valid until the 1st day of May next after possession given. Taggard v. Roosevelt, 2 E. D. Smith (N. Y.) 100. Delaware.-A lease for a year may be by parol. Himesworth v. Edwards, 5 Harr. (Del.) 376.

A parol contract that a party should have a certain meadow for three years as a compensation for clearing it-he seeding it was held not admissible in evidence, the Delaware statute of frauds requiring that all contracts relating to lands be in writing. Scotten v. Brown, 4 Harr. (Del.) 324.

Massachusetts.-A parol agreement between the parties to a lease, in writing entered into before the expiration of the lease, that the lessee would take the premises for another year on the same terms is within the Massachusetts statute of frauds, as an agreement not to be performed within a year and no action can be maintained thereon. Delano v. Montague, 4 Cush. (Mass.) 42.

Indiana.-Under the Indiana Rev. Stat. 1843, ch. 28, par. 16, a suit by a lessee against the lessor for refusing to deliver possession will not lie upon a verbal agreement to lease land for two years the occupation to commence at a future day. Stackberger v. Mosteller, 4 Ind. 461.

Under the Indiana laws a parol lease for a year, to commence thirty days after the making of the contract, is valid within the statute of frauds. Hoffman v. Starks, 31 Ind. 474.

By Massachusetts Stat. 1783, ch. 37, par. 1, all parol leases have the effect of leases at will only. Ellis v. Paige, I Pick. (Mass.) 43.

Georgia. Under the Georgia statute of frauds, a parol lease for more than three years has the effect of an estate at will. Cody v. Quarterman, 12 Ga. 386.

[blocks in formation]

New Hampshire. - A licence privilege to be exercised upon land is not within the statute of frauds and may be granted by parol. Woodbury で。 Parshley, 7 N. H. 237.

[ocr errors]

Ohio. Possession given under a parol lease of lands and part performance by the lessee, takes it out of the Ohio statute of frauds. Wilber v. Paine, 1 Ohio 251; Grant v. Ramsey, 7 Ohio St. 158; Moore v. Beasley, 3 Ohio 294.

Connecticut. An agreement respecting the leasing of real estate not

VI. AGREEMENT FOR LEASE.—It is sometimes quite difficult to distinguish a lease from an agreement for a lease. In determining whether an instrument is a present lease or simply an agreement for a future lease, the whole tenor and effect of the instrument must be considered, and in such considerations the intentions of the parties must be respected, for if it manifestly appear that it was the intention of the parties to the instrument that it should be simply an agreement for a lease, although some portions thereof import a present demise, the law will construe it to be an agreement for a lease.I

An agreement for a lease can be amended or altered to suit the intentions of the parties thereto, while in a complete lease the parties are bound by its implied as well as its express covenants. An agreement leaves something further to be done by the parties in the future, while a lease leaves nothing undone, and is a demise complete in its provisions and terms.2

to be performed in one year is not within the Connecticut statute of frauds. Janes 7'. Finny, 1 Root (Conn.) 549.

Tennessee. A verbal lease under the Tennessee statute of frauds for six years is void and cannot be construed as a lease from year to year. Porter v. Gordon, 5 Yerg. (Tenn.) 100.

Illinois. A parol lease for a term not exceeding one year is valid. Bull v. Griswold, 19 Ill. 631.

A verbal agreement to lease land for one year, which by its terms, is not to be performed within one year from the making thereof, is void. Olt v. Lohnas, 19 III. 576.

North Carolina.-A verbal agreement for land for more than three years, and those for mining for any term though less than three years, are void under the North Carolina statute of frauds. Briles v. Pace, 13 Ired. (N. Car.) L. 279.

Mississippi-A verbal contract for a lease of land for more than a year is void. Phipps v. Ingraham, 41 Miss. 256.

1. Hallett . Wylie, 3 Johns. (N. Y.) 44; Jackson v. Clark, 3 Johns. (N. Y.) 424; Jackson v. Myers, 3 Johns. (N. Y.) 388; Bacon 7'. Bowdoin, 22 Pick. (Mass.) 401; State v. Page, 1 Spear (S. Car.) 408; Goodlittle v. May, 1 T.

[blocks in formation]

Har

soon as convenient." held to be an
executory agreement for a lease.
rison v. Parmer, 76 Ala. 157.

A writing having been drawn up at the second interview between the parties, which specified particularly the duties and obligations of the lessee, was signed by him and delivered, with his notes for the rent as specified, to the lessor, who thereupon surrendered to him the original writing; this, without more, would amount to an executed lease, and the lessor would be held to have waived any stipulations not contained in the writing. But, it being further shown that the parties separated with the understanding that they were to meet a third time, when a duplicate of the writing signed by the lessee was to be prepared and signed by the lessor, and the first writing was to be then surrendered by the lessee. and that this was not done at the third meeting; these facts show that the parties considered the transaction as still incomplete, and the writings operate only as an executory agreement for a lease. Harrison v. Parmer, 76 Ala. 157.

A written contract of lease for cer

tain rent, with an agreement that the lessor would pay for repairs and for the support of A, but no provision for the duration of the contract, the kind of repairs, or for the support of A, held to be a contract partly written and partly parol. Gordon v. Gordon, 96 Ind. 134

An entry under a written agreement for a lease for a definite term, and at a specified rent, and the payment and receipt of the rent, constitute a valid lease between the parties for the term therein named, and at the rental speci

VII. FORMAL PARTS OF A LEASE1-1. Date.-The date of the lease will fix the time of commencement unless there is some other time mentioned therein. But if there is no date, or the date therein specified is an impossible one, the time will be considered as having commenced from the delivery of the lease.2 If there be a mistake in the date of the lease, this will not vitiate the lease.3

2. Sunday Laws.-A lease dated and executed on Sunday is void.4

It will be presumed that it was delivered at the date thereof, unless the contrary is proved.5

3. Names of Parties. The law knows but one Christian name, and the insertion of a middle name or initial is immaterial. And a person may show that he is known by one name as well as another.6

fied. Cheney v. Newberry, 67 Cal. 125. A parol agreement to execute a lease for one year at a stated rental, payable in monthly instalments, is not broken by a refusal to execute a lease which imposes terms and conditions not imposed by the law and of which no mention was made in the agreement. Hayden v. Lucas, 18 Mo. App. 325.

While a mere agreement for a lease does not create a tenancy or give a right of possession, yet if there is possession for the purpose of putting up a building, and this is to continue until the rent pays for the construction, the tenancy begins immediately on completion of the building. Billings v. Canney, 57 Mich. 425.

An agreement for a lease is sufficient if it gives the date by which the amount of rent may be found, leaving it to be worked out by calculation, and it is also sufficient to state a gross sum supposed to represent that calculation, subject to the correction of any mistake that may be found in such calculation. McFarlane Williams, 107

Ill. 33.

2.

A proposal by a tenant at will to "take the house for three years" from a certain future day, if the owner will put in a new furnace and acceptance by the owner, construed to be a present demise to commence in future, and not a mere agreement to execute a lease at a future time. Shaw v. Farnsworth, 108 Mass. 358.

An agreement for a lease will be construed to be a present demise if no future formal lease be contemplated, and especially if possession be taken under it. Jenkins v. Eldredge, 3 Story (U.

S.) 325.

If, in an agreement for a lease, there is no price fixed by the parties, or it is left to the award of a third person not designated, there is wanting an essential ingredient to constitute a contract of lease. Haughery v. Lee, 17 La. An. 22.

An agreement for a lease with the privilege of purchasing, the conditions of the agreement having been performed, it was held the agreement had ripened into a lease as to the period pending the conditions Haven V. Wakefield, 39 Ill. 509.

Certain premises were let by a written lease "for the term of one year," for a sum named “with the privilege of continuing five years" at an increased rent. Held, that the latter clause was not an executory contract for a lease; but was sufficient to create a present demise, if the occupation of the premises was continued after the expiration of the first year. Kimball v. Cross, 136 Mass. 300.

1. See generally DEEDS, vol. 5, p. 423. 2. Keys v. Dearborn, 12 N. H. 52; Trustees etc. v. Robinson, Wright (Ohio) 436; Jackson v. Schoonmaker, 2 Johns. (N. Y.) 231; Church v. Gilman, 15 Wend. (N. Y.) 656.

3. Jackson v. Schoonmaker, 2 Johns. (N. Y.) 230, 234; Fash v. Blake, 44 Ill. 302.

4. Stebbins 7. Peck, 8 Gray (Mass.) 553; McIntosh v. Lee, 57 Iowa 356.

5. Harris v. Norton, 16 Barb (N. Y.) 264; Jayne v. Gregg, 42 Ill. 413; Ford v. Gregory, 10 B. Mon. (Ky.) 175; Robinson v. Gould, 26 Iowa 89; Sweetser v. Lowell, 33 Me. 446.

6. Lyon v. Kain, 36 Ill. 362; Games 7. Stiles, 14 Pet. (U. S.) 322.

The person to whom a lease is made should always be made a party.1

Parol evidence will not be admissible to show that if one person's name is mentioned in the body of the deed and it is signed. by another, it is not the lease of either.2

4. Recitals. A recital in a lease operates as an estoppel, and. the parties thereto are prevented from denying or disputing the facts therein stated.3

5. Consideration.-Some consideration must appear in order to make a lease valid, although this consideration need not consist, of what is technically called rent, or a periodical rendering of compensation for the use of premises; it may be a sum in gross, or the natural affection which one party may have for another.

1. Whittaker v. Miller, 83 Ill. 381; De Arguello v. Bouso, 67 Cal. 447; Simms v. Hervey, 19 Iowa 273, 290; Basford v. Pearson, Allen (Mass.) 387; Ingram v. Little, 14 Ga. 173; Burns . Lynde, 6 Allen (Mass.) 305; Drury v. Foster, 2 Wall. (U. S.) 24; Edelin v. Sanders, 8 Md. 118.

Parol evidence will not be admissible to show that a lease executed in one person's name and reserving rent to such person was intended for the benefit of another. Jackson v. Foster, 12 Johns. (N. Y.) 488; or that although by its face the lease purports to have been made for the benefit of one person, it was made for the benefit of such person together with another. Otis v. Sill, 8 Barb. (N. Y.) 102, 122.

2. Roff v. Duane, 27 Cal. 571.

3. Recitals. All the parties to a deed are not, however, necessarily estopped by every recital in it. It is only where a recital is intended to be a statement, which they all have mutually agreed to admit as true, that it has the force of an estoppel with respect to all of them. Where it is intended to be the statement of one party only, the estoppel is confined to that party; and the intention of the parties in this respect is to be gathered from the instrument itself. Stroughill v. Buck, 14 Q. B. 787.

"The words in an indenture are the words of both parties, and although they are spoken as the words of one party only, yet they are not his words alone, for there is the assent of the other party to each other's words; and, therefore, when they are written they shall be taken in such manner as the intent of the parties may be supposed to be. And they shall not be taken most strongly against one and benefi

cially for another, as the words of a deed poll shall, for there the words shall be taken most strongly against the grantor, and most available to the grantee. But it is not so in a deed indented, because the law makes each party privy to the speech of the other; and, therefore, we ought not to make such construction of words in an indenture as in the deed poll. But if an indenture contains matter of substance, the law will make such reference thereof as is most fit and reasonable, and will say that the words are spoken by him who could most properly speak them." Browning v. Beston, 1 Plowd. 134.

The recitals of any fact material to the conveyance, the existence or nonexistence of which would determine its validity is no doubt binding on the parties to a deed, and will estop them from disputing it thereafter in any proceeding arising on the deed. Smith's Landlord & Tenant, 113, note a.

"But this," in the words of Greenleaf on Evidence, vol. 1, p. 267, "is only true of particular, not of general recitals; thus if one be bound in a bond conditioned to perform the covenants in a certain indenture, or to pay the money mentioned in a certain recognizance, he shall not be permitted to say, that there was no such indenture or recognizance. But if the bond is conditioned that the obligor shall perform all the agreements set down by A, as to carry away all the marl in a certain close, he is not estopped by this general condition from saying that no agreement was set down by A, or that there was no marl in the close. Neither does this doctrine apply to that which is mere description in the deed, and not an essential averment, such as the quantity of land; its nature, whether

It may also consist of grain, animals, or the personal services of the lessee.1

6. Description of Premises.—It is important that à proper description of the demised premises be inserted in the lease in order to pass all the premises intended to be included as well as for giving effect to the instrument, since if it does not describe the premises with a reasonable certainty, it is void.

But the description need not specify all the particulars of the subject matter of the demise, for the accessories will follow the principal thing, as the general description of a farm includes all the houses and lands appertaining to it.2

In determining what is demised, all parts of the lease must be taken together.3

The rule is, in describing premises, that where boundaries are given with reference to fixed and known objects, they control courses and distances.4

arable or meadow; the number of tons in a vessel chartered by the ton, or the like; for these are but incidental and collateral to the principal thing, and may be supposed not to have received the deliberate attention of the parties." 1. Failing v. Schenck, 3 Hill (N. Y.) 345; State v. Page, 1 Spear (S. Car.) 408; Scrantom v. Booth, 29 Barb. (N. Y.) 171.

A promise to pay rent to owner of premises is a sufficient consideration for an agreement to lease premises to person making such promise. McFarlane v. Williams, 107 Ill. 33.

A lease to a man during his life and the life of his wife, if he should marry, vests no interest in her. Remington v. Remington, 1 Root (Conn.) 463.

Where a person signed his name as "security" to another man's agreement to pay rent, without expressing any additional consideration, it was held that his undertaking was void under the New York statute of frauds. Gould v. Moring, 28 Barb. (N. Y.) 444.

Where a person signs an agreement to pay the rent of a house, it being admitted that the house was not occupied by the defendant, it is void for want of

a

consideration expressed therein. Clarke v. Richardson, 4 E. D. Smith (N. Y.) 173.

2. Descriptions.-Hay V. Cumber land, 25 Barb. (N. Y.) 594; Bennett v. Bittle, 4 Rawle (Pa.) 339; Pattison v. Hull, 9 Cow. (N. Y.) 747: Bailey v. White, 41 N. H. 337; Patterson v. Hubbard, 30 Ill. 201; Dingman v. Kelley, 7 Ind. 717; Jarboe v. Muley, 49 N. Y. Sup. Ct. 525; Kea v Robeson, 5 Ired.

Eq. (N. Car.) 375; Proctor v. Pool, 4
Dev. (N. Car.) 370; Coppinger v. Arm-
strong, 5 Ill. App. 637; Campbell v.
Johnson, 44 Mo. 247; Eggleston v.
Bradford, 10 Ohio 312; Worthington v.
Hylyer, 4 Mass. 196; Iron Co.
Stephens, 5 Lea (Tenn.) 469; Vose v.
Bradstreet, 27 Me. 156.

[ocr errors]

3. Norris v. Showerman, 2 Doug. (Mich.) 16.

4. Kamphouse v. Gaffner, 73 Ill. 457. Where a platform covering the outlet to cellar steps was not mentioned in a lease of a part of a cellar, and its use was not necessary to the real use of leased premises, it was held that tenant could not claim it. Hill v. Shultz, 40 N. J. Eq. 164.

Though the description of the premises in a lease is imperfect, yet if they were taken possession of and occupied under the lease, and the boundaries of premises are reasonably certain, it is sufficient. Pierce v. Minturn, I Cal. 470; Whipple v. Shewalter, 91 Ind. 214; Hoyle v. Bush, 14 Mo. App. 408.

A lease to a store includes the land under it, and to the middle of a private way in the rear, the fee of which is in the lessor. Hooper v. Farnsworth, 128 Mass. 487.

See also Rogers v. Snow, 118 Mass. 118; Sherman v. Williams, 113 Mass. 481; Bacon v. Bowdoin, 22 Pick. (Mass.) 401; Miller v. Miller, 15 Pick. (Mass.) 37; Riddle v. Littlefield, 53 N. H. 503; McMillan v. Solomon, 42 Ala. 356; People v. Gedney, 10 Hun (N. Y.) 151; Smith v. Martin, 2 Saund. 400.

But a lease of apartments or one of several buildings on a lot will carry

« ZurückWeiter »