holds out an estate as his own, the purchaser may presume that he has had a satisfactory title; and if he holds out as his own that which is not so, he may very fairly be compelled to pay the loss which the purchaser sustains by not having that for which he contracted."

2ndly. Of Contracts between Landlord and Tenant.

1. TO TAKE, ASSIGN, AND SURRENDER PREMISES. 1. When an instrument amounts to an immediate demise, or only to an agreement to let in futuro.-In order to ascertain whether an instrument amounts to a present demise, or operates merely as an agreement for a future letting of the premises, the intention of the parties, to be collected from the whole of the words used by them in such instrument, is to be considered (q). And if the words of the instrument be ambiguous, the acts of the parties, as the taking possession of the premises, &c., may be called in aid to ascertain their intention (r).

It is clear that no precise or technical form, or language, need be observed to create an immediate letting or demise. It may be laid down as a rule that whatever words are sufficient to explain the intent of the parties, that the one should divest himself of the possession, and the other assume it for any determinate time; such words, whether they run in the form of a licence, or a covenant, or agreement, are of themselves sufficient, and will, in the construction of the law, amount to a demise (s).

Thus a licence to A. to enjoy a house (t); or a covenant, that he shall reside therein (u);" or other terms of similar import, operate as a present demise; there being nothing in the instrument evincing an intention to the contrary.

(q) See R. B. Comyn's, Bingham's, Chambers', and Woodfall's Treatises on the law of Landlord and Tenant. See Morgan v. Bissell, 3 Taunt. 63; Doe v. Ashburner, 5 T. R. 163. See ante, 62, as to the construction of contracts in general. See Adams Ej. 3rd ed. 113; Woodf. by Harrison, 145,

176.

(r) Doe d. Pearson v. Ries, 8 Bing. 181;1 Moor & S. 264, S.C.; per Tindal, C.J.; Doe v. Ashburner, 5 T. R. 163, per Ashurst, J. And if a party afterwards dis

train for rent, he is estopped from denying that a tenancy existed, although the instrument amount only to an agreement for a future demise; Hancock v. Caffyn, 8 Bing. 358, 365, 366, 368.

(s) See Co. Litt. 45 b; Bac. Ab. tit. Leases, (K); 2 Bla. C. 318.

(t) Y. B. 5 H. 7; Colebourn and Mixstone's Case, 1 Leon. 129; 15 Vin. Ab. 94, pl. 2. See Woodf. by Harri

An agreement under seal and on a lease stamp, "to let premises from Michaelmas next, to A. upon condition that he should paint, repair, &c.," is an actual demise (r). So is an instrument between A. and B., whereby 4. agrees to pay a certain sum per annum, quarterly, for a house, &c., for the term of seven, fourteen, or twenty-one years, at his option, the rent to commence from a named day (y). The words " A. agrees to let, and B. agrees to take," are of themselves words of present demise (z).

There are some modern cases which prove that an instrument containing words of present demise, will operate as a lease or letting, if such appear to have been the paramount intention of the parties; although it contain a clause for a future formal lease. Thus, a memorandum expressing that "A. thereby agreed to let, and B. agreed to take, land for sixty-one years, at a certain rent for building; and the latter agreed to lay out 4,000l. within four years in building; and when the buildings were finished, the landlord agreed to grant a lease; but it was provided that “the agreement should be considered binding till one fully prepared could be produced," amounts to an immediate demise (a). So an instrument by which A. agreed to grant a lease for a certain term, upon covenants specified, some of which were inconsistent with a tenancy from year to year, and B. agreed to take a lease upon such terms," and in the meantime, and until the lease should be made, to pay the rent, and hold subject to the covenants, and to repair forthwith, with power of re-entry before lease executed, on breach of the stipulations," constitutes a letting upon the terms stated (6). And where, by a written instrument, K. agreed to let, and P. agreed to take, a house in its unfinished state, for the term of sixty years, being the whole term that K. had the same leased to him, at the rent of 5251, payable quarterly, the first payment to be made for the half quarter at Christmas next, P. to insure and to have the benefit of an insurance lately made; a lease and counterpart to be prepared at P.'s expense, and to contain all the clauses, covenants, and agreements, K. entered into in the lease granted to him; it was held that this was an actual

(x) Doe d. Colcombe v. Fidler, Peak Addl. Cases, 3?.

(y) Wright v. Trevezant, 3 C. & P. 441; Moo. & M. 231, S. C.

(z) Doe d. Pearson v. Ries, 8 Bing.

182; 1 Moor & S. 264, S. C, per Tindal, C, J.

(a) Poole v. Bentley, 12 East, 168. (b) Pinero v. Judson, 3 M. & P. 497; 6 Bing. 206, S. C.

demise, and not a mere agreement for a lease, particularly as P. was put into immediate possession (c). And this doctrine holds good, (that is, an agreement of this kind, showing a paramount intention to grant a present interest, shall be construed as a demise,) although it be also provided that the future lease “shall contain the usual covenants" (d).

An agreement by which A. agrees to "let" premises to B. "on lease," for a certain term at a certain rent, "subject to the stipulations and covenants in the original lease under which he holds," and "to keep these stipulations in every respect until the lease shall be granted, which lease, when required by B., is to be prepared by 4.'s solicitor at B.'s expense," is a lease, and not an agreement for one (e).

And it seems that such clear words of present letting shall prevail, although there be expressions relative to a formal deed or instrument to be executed upon the subject; provided it be apparent that such future formal instrument were alluded to, rather for the purpose of affording a further or better assurance, security, or protection, than in contemplation of the demise being created thereby (ƒ).

"If the most proper and authentic form of words, whereby to describe and pass a present lease for years, be made use of, yet if upon the whole deed or instrument there appear no such intent, but that they are only preparatory, and relative to a future lease to be made, the law will rather do violence to the words than break through the intent of the parties (g).

A. agreed that" B., the mills, &c. should enjoy, and engaged to give him a lease for the term, &c., and at the rent, &c." By another part of the agreement "an additional piece of land was to be purchased by A., to be added to the land demised." It was held that this amounted only to an agreement for a lease (h). And if the parties, in their agreement, make mention of a

(c) Doe d. Pearson v. Ries, 8 Bing. 178; 1 Moore & S. 264, S. C.

(d) Doe d. Walker v. Groves, 15 East, 244; see post, 254.

(e) Wilson v. Chisholm, 4 C. & P.

474.

(f) Harrington v. Wise, Cro. El. 486; Tisdale v. Essex, Hob. 34; Drake v. Munday, Cro. Car. 207;

Baxter d. Abrahall v. Brown, 2 Bla. R. 933, and other cases, cited Woodf. by Harrison, 146, 147.

(g) Bac. Ab. Leases, (K); see Woodf. by Harrison, 148.

(h) Doe d. Jackson v. Ashburner, 5 T. R. 563, cited by Bayley, J., in Doe v. Groves, 15 East, 247.

"lease to be granted," or "or a clause to be inserted in a future lease," such stipulation tends to show that the instrument was not meant to operate as a present demise (i); but it is not a conclusive circumstance, and has no such effect if the terms be in other respects fixed and stated (k). It is reported to have been decided that an agreement by A. to grant, and B. to take, a lease, for a certain term, at a fixed rent, is per se only a contract for a future demise (1).

If strong circumstances of inconvenience would arise from an instrument being construed as a present demise, that fact may indicate that the intention of the parties was that it should be an agreement only; such as a stipulation that, out of the rent mentioned, a proportionate abatement should be made, in respect of certain excepted premises; and a stipulation that the tenant "should hold, under all usual covenants, &c.," for it may be disputed what are usual covenants (m).

So, where a landlord and tenant, between whom there was a subsisting tenancy, agreed in writing for a letting of the farm upon different terms; the amount of the rent to be settled by valuation, and the tenant to find sureties for his paying the rent; but the amount was not settled and the sureties were not given; it was held that the instrument, although it contained words of present demise, did not operate as a lease, or alter the terms of the existing tenancy (n).

A. agreed to let premises to B. on lease, with a purchasing clause, for twenty-one years, at 631. per year; " B. to enter any time on or before a particular day, &c. It was held that this was only an agreement for a lease; the Court saying there were no words of demise; that the commencement of the tenancy was left uncertain; and that the words as to purchasing showed that the

(i) Goodtitle v. Way, 1 T. R. 735; Doe d. Bromfield v. Smith, 6 East, 530; 2 Smith, 570, S. C.; Poole v. Bentley, 12 East, 170; Tempest v. Rawling, 13 East, 18.

(k) Doe d. Pearson v. Ries, 8 Bing. 178; 1 Moor & S. 264, 5 C.

(1) Phillips v. Hartley, 3 C. & P. 121; see Clayton v. Burthenshaw, 5 B. & C. 41; 7 D. & R. 800, S. C.

(m) Morgan d. Dowding v. Bissell, 3 Taunt. 65; Colley v. Streeton, 3 D.

& R. 522. It is observable, that in these cases, the terms of the future lease were not ascertained at the time: where the terms, though not stated, can be collected at once from an instrument referred to by the agreement, as a former lease, &c., the above objection does not apply; see Doe d. Pearson v. Ries, 8 Bing. 178; 1 Moor & S. 264, S. C.

(n) John v. Jenkins, 1 C. & M. 227.

letting was to be by a particular instrument containing such a clause (o).

It seems that the owner of land, contracting to grant a lease, does not impliedly engage that he will deliver to the intended lessee, an abstract showing his title or right to grant such a lease, In Temple v. Brown (p), Gibbs, C. J., was of opinion that there was not any such implied contract.

Where there is a sufficient demise of premises, the law implies a promise by the party demising to give possession to his tenant; and assumpsit lies against the party letting for the breach of such promise (q).

2. When the Demise must be in Writing under the Statute of Frauds. We may here notice the first and second sections of the Statute of Frauds, 29 Car. 2, c. 3, which was passed to prevent the perjury and uncertainty occasioned by allowing leases to be granted by parol, except in certain subordinate instances.

The first section provides that all leases, estates, interests, of freehold, or terms of years, or any uncertain interest of, in, to, or out of, any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorised, by writing, shall have the force and effect of leases or estates at will only and shall not at law or in equity have any greater effect, notwithstanding any consideration for making such parol leases,

or estates.

The second section excepts all leases, (i. e. demises,) not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two third parts, at the least, of the full improved value of the thing demised.

The effect of these sections is, that a tenancy, which is to endure beyond three years from the agreement, cannot be created by a parol contract, and therefore a parol lease for three years, to commence in futuro, is inoperative (r): but a lease, by parol, for a