within the provisions of a law which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for an act which would otherwise be a trespass. A lease must have a valid consideration to support it, which is unnecessary in the case of a license. Under a license, the licensee is entitled to notice of revocation, and he has a reasonable time within which to go off the land before he can be forcibly thrust off it; moreover, he might bring an action if he were thrust off before the lapse of such a reasonable time.' Furthermore, a license is not in its nature assignable, but limited to the person of the grantee. If the grantor transfer his interest, the license is revoked. Ordinarily, a license is confined strictly to the parties and will not operate in favor of or against third persons, but it is different when the license is coupled with an interest, which will not only render it irrevocable by the licensor, but enable it to pass with an assignment of the interest to third persons." LEASEHOLD ESTATES 4. The relation of landlord and tenant commonly exists with reference to estates for years. Estates for years include all estates for a period fixed and definite, whether from year to year, for a number of years, or simply for a number of weeks or months, and are known as leasehold estates, or leaseholds. The incidents of such estates are not the same in all cases, since the lease or contract on which each particular estate is based may contain whatever provisions the parties see fit to insert. But, within certain restrictions, the lessee is entitled to the possession and use of the property as if he were owner, and may appropriate the profits of the land and work open mines or any other source of income situated upon it." 56 N. Y. 279 (1852). 6 L. R. 5 C. P. (Eng.) 334 (1870). 7 L. R. 9 Q. B. (Eng.) 400 (1874). 81 Cow. (N. Y.) 568 (1823). 94 Johns. (N. Y.) 418 (1809). 103 Phila. 71 (1858). 11 36 Barb. (N. Y.) 641 (1862). The word term is applied to the period of time for which the tenant is to hold the land. "It is derived from terminus, signifying that it is bounded and precisely determined, having a certain beginning and a certain end."""" Besides denoting the duration of the tenant's estate, the word term signifies also the estate itself," as, for instance, a term of years. Being an estate of less than freehold and one, consequently, to which seisin was not incident, an estate for years may be limited to commence at a future time. When the owner of land leased it for a term of years, the seisin remained in him, the lessee taking a mere right to the possession. If a lease be made creating an estate for years to begin within a year or two years, the lessee under the contract has no right to enter upon the land until the expiration of the year or two years. He has what is called an interessee termini (an interest in the term), which is such an interest as may be assigned, the assignee of the lessee having the right to enter upon the land at the time named in the lease. Failure to enter at the time appointed by the holder of an interessee termini does not affect his liability for rent, unless it be caused by interference or some other action on the part of the lessor." The reason is that the rent is not due from the entry, but because of the lease or contract, and, when the landlord brings his action, it is based on the contract. It is sufficient to constitute a good estate for years that a precise time is fixed for the continuance of the term, so that as soon as the commencement of the term is ascertained, it can be told with certainty when it will end." Therefore, a lease for "at least seven years," or one "for fourteen years as soon as the tenant shall so elect," is a good lease. A lease for seven or fourteen years" has also been held a good lease." 12 Washb. R. P., Vol. 1, Sec. 609, citing Wms. Real Pr. (Rawle's Ed.) 328. 13 Co. Litt. 45 b. 141 Ld. Raym. (Eng.) 171 (1694). 15 16 N. H. 265, 268 (1844). 169 East (Eng.) 15 (1807). FORMATION OF THE CONTRACT 18 5. A lease may be made by deed, by writing not under seal, or by parol." The statute of frauds, which is substantially in force in England and in most of the United States, requires that all leases for more than three years "not put in writing and signed by the parties shall have the force and effect of estates at will only." In the United States, the period of three years named in the English statutes has been adopted in many states;" in others, parol leases are understood to convey holdings at the will of the landlord. It is not generally necessary that the lease take the form of a deed, although this is the rule in some of the states. A lease need not be under seal;" but, in some of the United States, statutes require a sealed instrument for the demise of lands for a longer period than three, five, or seven years; or, in some cases, one year. The statute of frauds further requires the writing sought to be availed of as a lease to be "signed by the parties, etc., making the same, or their agents thereto lawfully authorized by writing."" But the statute is satisfied by a note in writing not under seal, signed by the party called on to fulfil it, if the other accepted it. or grantor is required to sign the agreement. must be in writing, and signed by him, but the statute does not require written evidence of the engagement of a lessee or grantee." Only the lessor 6. The technical words commonly used to create an estate for years are "grant, demise, and to farm let'; also, "do lease, demise, and let."" Such words, however, are not essential to the validity of the lease. Formality is immaterial, provided the intention to lease be unmistakable and the instrument contain the other requisites. A difficulty is frequently encountered, in construing documents of this nature, in deciding whether the instrument be a demise of property intended to take effect at once or whether it be simply a contract for a future transfer. "The question seems to turn upon whether the writing shows that the parties intend a present demise and parting with the possession by the lessor to the lessee, for, if it does, it will operate as a lease, though it is contemplated that a future writing should be drawn, more explicit in its terms. And it may be a good lease in distinction from an executory contract to lease, though it be to commence in futuro. But if a fuller lease is to be prepared and executed before the demise is to take effect, and possession given, it is an agreement for a lease, and not a lease which creates an estate. 9724 AN AGREEMENT FOR A LEASE 7. Where parties enter under a mere agreement for a future lease, they are tenants at will;" and, if rent be paid under the agreement, they become tenants from year to year, determinable on the execution of the lease contracted for, that being the primary contract. But if no rent be paid, nevertheless, before the execution of a lease, the relation of landlord and tenant exists, if the parties enter with a view to a lease and not a purchase." If there be words of present demise, if the instrument show it to be the intention of the landlord that the premises shall be enjoyed by the tenant immediately, or at a future specified time, upon certain terms, a demise is thereby created, and a stipulation that a lease shall be afterwards prepared does not prevent its operating." An entry under a mere agreement for a lease gives the landlord no right to distrain, unless so provided in the agreement. If, however, rent be paid after entry, this constitutes a tenancy from year to year, and the landlord may then distrain, 24 Washb. R. P., Vol. 1, Sec. 620. 253 B. & C. (Eng.) 478 (1824). 261 M. & R. (Eng.) 137 (1827). but not before there has been a payment of rent. The distinction between a lease and an agreement for a lease is frequently very narrow. The test seems to be: If the agreement leave nothing incomplete, it may operate as a present demise." The rights of the parties on an executed lease and on a mere agreement to lease vary greatly. If the instrument be a complete lease, the rights of the parties must be determined by it alone; if an executory agreement for a future lease, the rights of the parties are not settled by it alone. In the latter case, the agreement may be varied by parol evidence; moreover, the lease which the agreement contemplates may never come into existence." CAPACITY OF PARTIES 8. Persons who have the capacity to make other contracts have the capacity to make a binding lease." The rules with respect to the lessor, however, are more stringent than with respect to the lessee. An executed lease by a lunatic where the position of the parties has been irrevocably changed is, in England, binding upon him. But his executory contract for a lease is generally held to be void. In most of the United States, a lease given by an insane person is voidable only. New York forms an exception, where the rule is that such contracts are absolutely void." A similar rule obtains in Oregon." Leases executed by infants are generally voidable; so are the leases of drunkards. A lease given by a married woman is generally void, unless it convey her separate property, in which case her power of disposing of it depends on the provisions of the enabling statutes in behalf of married women of the state in which the party resides." The general rules stated in the law of contracts with reference to disaffirmance and ratification of contracts of infants and of other parties laboring under 28 102 Mass. 392 (1869). 29 Sugd. Letters, 188. 309 Exch. (Eng.) 309 (1854); 53 Me. 451, 456 (1866); see The Law of Contracts: Parties to Contracts, Competency. 3151 N. Y. 378 (1873). 33 Sm. L. & T. 48. |