into a lease, in view of the relation the buildings bore to the company's business" (8).

§ 11. Working on shares. What is known as farming on shares, which may be working in any business for a share of the profit but is more common in cropping land than in other occupations, may be any one of three very different arrangements; and which it is depends on the terms of the contract. First, it may be a hiring of the cropper by the landowner, it being agreed that a share of the crops raised shall be the consideration for the services rendered. Secondly, it may be a sort of partnership in which one of the partners furnishes the land, the other furnishes the labor, one or both furnish the seed and tools, and they share in the profits. Or, thirdly, it may be a lease, in which the landowner agrees to receive part of the crops as rent. The relation of landlord and tenant exists between them only in the case last named.

If it is a contract of hiring to be paid in a share of the crops, the landowner owns the whole crop, and the workman has no interest in it which he can sell, mortgage, or which will excuse any intermeddling with it by him, until his share has been delivered to him in payment, and the landowner has the right to make the division. On the other hand, if it is a contract of leasing, and a part of the crop is to be paid as rent, the tenant owns the whole crop, has the exclusive right to management and division, and the land owner has at most only a lien on the crops for his rent until his part has been paid to him by the tenant. Such a leasing differs from a letting for

(8) Lightbody v. Truelson, 39 Minn. 310.

money rent only in the fact of the personal element that the produce of the land largely depends on who is doing the farming, and this takes from the tenant the right to assign the lease without the consent of the landlord, which is not necessary to an assignment of the right of the tenant under a lease reserving rent payable in money. For the same reason the tenant could not sublet; and upon such subletting it has been held that the landlord may demand and recover of the tenant a money rent, or take possession as for a forfeiture if there was in the lease a condition of forfeiture on breach of any of the terms of the lease.

The relation of landlord and tenant is not created by a mere contract to farm on shares with joint possession and management by the owner and cropper. To the existence of that relation it is essential that the contract shall contemplate an exclusive use and possession by the tenant. Such contracts may also assume the nature of a mortgage, as where it is agreed that the landowner or any other shall furnish the seed or supplies necessary to produce the crop and shall have a lien on the crop for his advances, or a lien for his advances and a share of the crop for the use of the land. The courts will construe the contract to be a lease if the share of the crops is to be paid to the land owner as rent and whenever it appears from the terms of the instrument as a whole that a lease was intended (9).

§ 12. Lease or contract to sell. Taking possession under a contract to sell and convey does not create the re

(9) Meyer v. Livesley, 45 Ore. 487.

lation of landlord and tenant between the buyer and seller. But there is nothing to prevent a lease and a contract to sell being embodied in the same writing; and where both are not intended, it is sometimes difficult to determine from the instrument which the parties intended. That the parties have used the word "lease" or "rent" or similar expressions in the paper is significant but not controlling; the intent is gathered by the court from the instrument as a whole, and the court will not consider what the parties may afterwards desire to testify as to what they understood or intended by it-the instrument is the best evidence as to that. The parties may also insert in a lease a provision that it shall operate as an absolute sale upon some subsequent event.

Under a written contract, whereby the owner of land rented the same to another for a term of years at a stipulated rent, to be paid annually in cotton or its equivalent in money, the tenant to pay all taxes and make certain improvements during the term, although the contract also contained a provision that the tenant should at the end of the term have an option to purchase the land at a named price and on specified terms, the relation of landlord and tenant was held to exist between the parties during the continuance of the term; and therefore the court refused to restrain the lessor from suing out a warrant under the statute to eject the tenant summarily during the term for non-payment of the stipulated rent (10). In another case (11) the court ordered spe

cific performance of the contract, where the lease was: "I. D, have this day rented to R (the land describing it) for the term of 10 years . . . and if he pays to me the above-named rent at the times agreed on, then I hereby agree to make to said R a good and sufficient deed to said land as a free gift." The court held the payment of the rent sufficient consideration for the promise to convey.

A contract of purchase is often converted into a lease by a clause inserted in the contract that upon default in making payment the vendee shall be deemed the tenant of the vendor and liable for a stipulated rent for the term of his occupancy; or the parties may at the time of the default agree for a continued possession and payment of rent. But in the absence of such an agreement the buyer does not become the tenant of the seller by making default in his payments, nor liable to pay rent as for use and occupation. On the other hand, it has been held that a contract to sell and deliver possession at a future day, or a present sale reserving possession till a day named does not make the seller tenant of the buyer; and yet failure of the seller to deliver possession on the day named has been held to entitle the buyer to recover possession by summary process as against a tenant holding over after his term is expired.

CHAPTER II.

THE LEASE.

SECTION 1. FORM AND INTERPRETATION.

§ 13. Necessity of writing. Statute of frauds. At the common law no writing was necessary to any lease, even for a thousand years; but by the statute of frauds, 29 Car. II (1677), c. 3, §1, it was declared that to prevent frauds commonly endeavored to be practiced by perjury, all leases for more than three years should from henceforth have the force and effect of leases at will only, unless they were reduced to writing and signed by the parties making them or by their agents thereunto lawfully authorized by writing. That statute has not the force of common law in this country, because it was enacted since the settlement of the colonies; but statutes in substantially the same terms will be found in all the states, patterned after this statute, and varying from it only in that many of them require all leases for more than one year to be in writing, and some of them say within a year "from the making thereof". In the absence of this phrase, most of the courts have held that an oral lease for the full term allowed is void unless it is to begin at once. In a few of the states requiring leases for more than a year to be in writing, oral leases for a year to begin at a future day are held to be valid. By the original statute and the statutes of several of