Lapas attēli
PDF
ePub

the states no oral lease is valid unless the rent reserved thereon is at least two-thirds as much as the use of the land for the term is worth. By some statutes all oral leases have merely the effect of estates at will. The power to another to make the lease must be at least as formal as the lease to be executed, that is under seal if the lease must be under seal, and may be for general purposes including the particular lease by its general terms, or it may be for the particular occasion. A lease executed by another in the presence of the lessor and signed for him at his request is deemed to be executed by the lessor in person, and no written power is necessary; but in such cases the lessor usually adds his cross to authenticate the signature.

§ 14. What is a sufficient writing? These statutes do not require that the writing shall be executed under seal, and a perfectly valid lease may be made without observing the proper legal forms. A letter offering to give or take the lease, and specifying the terms, and a reply accepting the offer unconditionally constitute a sufficient lease under any of the statutes. But if the reply imposes new terms no lease is made out till these are unconditionally accepted by the other party. No lease is made out unless the writing or writings make reasonably certain what premises are intended, by describing them or making some reference by which the description may be ascertained; nor unless the time of commencement and duration of the term and the amount of the rent to be paid are stated. A signed and dated receipt on a bill of sale of hay and oats, with the memorandum "Left at

stable on O street where P takes possession. Rent to begin October 1, 1870, for one year at $150," was held a sufficient memorandum under the statute, parol evidence being resorted to to aid the description (1). Again, a receipt for $10 "from C on rent of store on corner of Z (No. 22) and C streets, which C is to have for a $100 a month until May, 1873," was held sufficient (2). While the statute requires that the lease be signed by the party making the same, any mark designed by him for a signature will suffice; it need not be his name. The signature need not be at the end, though that is the only proper place. The writing may be printed, and if written by hand may be in ink or with pencil.

§ 15. Certainty of term required. As to the certainty of the term, it might be a valid lease at will without any certainty as to duration; but without certainty as to the time of commencement it would seem to have no validity unless as a license which would operate as a defense to an action of trespass for taking possession before being forbidden to do so. In an old case it was held that when one possessed of a term for 40 years granted to J as many of these years as should be arrear at the time of his death, the grant was void because of the uncertainty both as to commencement and duration, and was not like the case of a grant to a man for life and to his executors for four years after his death, which gave the executors a certain term though the time of commencement was left to be ascertained by a future event, whereas in this

(1) Eastman v. Perkins, 111 Mass. 30. (2) Remington v. Casey, 71 Ill. 317.

case if the grantor should live the whole 40 years there would be no term (3). In a Massachusetts case (4) the owner was allowed to recover possession, on the ground that the lease was void for uncertainty of both cominencement and duration, where the defendant had gone into possession under a letter written him by the plaintiff in these words: "I hereby let you the whole of my house on Mercer street in South Boston, when said house is suitable to be occupied by you, for a rent of $480 per annum, but it is to be understood that in case, after two years subsequent to your moving into the house, I should wish to live in the house myself, I can do so, and that then you may still retain, if you wish (certain rooms mentioned) for such a time as may be agreeable to us both." It would have been a good lease for two years notwithstanding it was to begin when the house was made fit to occupy and possession taken, the court thought; but the fact that it was to continue for an uncertain time after the two years expired unless the lessor should desire to take possession was held to destroy the certainty entirely.

§ 15a. Other formal requirements. A revenue stamp has at times been required by statute on penalty of not being admissible in evidence. Delivery of the lease by or for the lessor, and acceptance, express or implied, by or for the leseee, are essential to give it effect. Acknowledgement by the lessor before a notary is often made essential to entitle the lease to record where there

(3) Brooke, Abridg. Tit. Leases, 66.
(4) Murray v. Cherrington, 99 Mass. 229.

is a statute requiring such instruments to be recorded to be valid against persons without notice of them.

§ 16. Effect of entering on void lease. Though the lease may not be so executed as to be valid it will at least operate as a license, so as to prevent the lessor maintaining any action against the lessee for a trespass in entering. It will also operate as a good lease at will or from year to year, though void under the statute as to the term agreed on because not in writing and signed as required. Though it is void as to the term, it is valid in all other respects, such as the time of year that the rent shall be paid, the obligation to pay, the amount of the rent, and the time of termination. In an action of ejectment it appeared that the plaintiff's agent leased the farm to the defendants by parol for seven years, who entered and paid an installment of rent accordingly. Afterwards the plaintiff gave notice to quit on Lady-day, which would not be the time for termination of a year, wherefore he was non-suited, and, on motion to set aside the non-suit, the motion was dismissed. The court said: "Though the agreement be 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 respects, as to the rent, the time of year when the tenant is to quit, etc. So where a tenant holds over after the expiration of his term, without having entered into any new contract, he holds upon the former terms. Now, in this case, it is agreed that the defendant should quit at Candlemas; and though the agreement is void as to the number of years for which the defendant was to hold, if the lessor chose to deter

mine the tenancy before the expiration of the seven years, he can only put an end to it at Candlemas" (5).

§ 17. When part performance will validate oral leases in equity. Moreover, parol leases for more than a year, and parol contracts to execute leases in the future for a longer period, may, like other parol contracts concerning interests in land, become enforcible in equity without complying with the statute, by reason of the part performance of the oral contract, and the fraud and injustice that would be visited on one of the parties by permitting the other to avoid it on a technicality after he had permitted the other to alter his position so that irreparable injury would be inflicted. The mere payment of rent will not make an oral lease for more than a year valid for the full term; but taking possession under the lease will, in most states. Some require, in addition to possession, the payment of rent or expenditures in making improvements upon the property. What acts are sufficient for this purpose is treated in the article on Equity Jurisdiction in Volume VII of this work.

§ 18. Lease or agreement for lease. It is often a point of doubt whether the instrument executed by the parties was a lease or an agreement for a lease. If it was merely an agreement for a lease to be executed in the future, the proposed lessee acquired no interest in the land at law by the writing, could not maintain an action of ejectment on it to recover possession against the lessor, nor even defend and retain the possession against an action for the possession by the lessor against him

(5) Doe d. Rigge v. Bell, 2 Smith's Leading Cases, *72,

« iepriekšējāTurpināt »