Selwyn's Abridgement of the Law of Nisi Prius

1. Sections 1, 2, & 3, and 8 & 9 Vict. c. 106, s. 3, as to Parol Demises, Assignments, and Surrenders.

1st Section. By this statute, for prevention of many fraudulent practices, which are commonly endeavoured to be upheld by perjury and subornation of perjury, it is enacted, 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 thereuntò lawfully authorized by writing (f), shall have the force and effect of leases, or estates at will only."

2nd Section.-"Except all leases, 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."

By 8 & 9 Vict. c. 106, s. 3-" A feoffment, made after the 1st day of October, 1845, other than a feoffment made under a custom by an infant, shall be void at law, unless evidenced by a deed; and a partition and an exchange of any tenements or hereditaments, not being copyhold, and a lease, required by law to be in writing, of any tenements or hereditaments, &c. made after the said 1st day of October, 1845, shall also be void at law, unless made by deed."

The general effect of these enactments, so far as relates to leases, appears to be, that all ordinary leases for terms exceeding three years from the making, must, in order to be valid, be by deed that leases for terms not exceeding three years from the making, at two-thirds the full improved value of the thing demised, may be made by writing or word of mouth; and all other contracts relating to any interest in land, including agreements to grant a lease, must be in writing under the fourth section, to be more fully treated of.

"The first section seems to be co-extensive with the fourth, and, consequently, every interest which is within the fourth section is equally within the first, unless it come within the saving of the second section" (g).

All Leases, Estates, &c. "An actual lease for any given number of years, whether with or without rent, or any interest uncertain in point of duration, must, as it should seem, equally fall within the provision of the first section, and cannot be sustained unless it come within the saving in the second section" (h).

(f) Under this section the agent must be authorized in writing, in cases under the 4th and 17th sections he need not.

See post, p. 873.

(g) Sugd. V. & P. (13th edit.) p. 97. (h) Ibid.

It is not necessary that a lease of turnpike tolls should be by deed (i).

Where a written document contains words of present demise or terms such as to show the intention of the parties to have been to make it operate as a lease for more than three years, it will be void as such, unless under seal, notwithstanding that it purports on its face to be an agreement (k). A lease by parol for a year and a half, to commence on the expiration of a lease which wants a year of expiring, is good; for it does not exceed three years from the making (1). But a parol lease for three years, from a future day, is void (m). The effect of the Statute of Frauds, as far as it applies to parol leases, whether to commence in præsenti or in futuro, provided they do not exceed three years from the making, is this, that the leases are valid, and whatever remedy can be had upon them, in their character of leases, may be resorted to; but they do not confer the right to sue the lessee for damages for not taking possession (n). In Edge v. Strafford (0), accordingly, it was held, that a verbal agreement to take ready furnished lodgings "for two or three years," inasmuch as it did not exceed three years, was valid as a lease; and whatever remedy could be had upon it, in the character of a lease, might be resorted to; but being a contract for an interest in land, and consequently falling within the fourth section, which requires a note in writing, no action could be supported for not entering on or occupying the demised premises. A lease by deed is not required by the first section of the Statute of Frauds to be signed as well as sealed (p); and the Court of Exchequer have intimated a strong opinion that a deed is not within either the first or fourth sections (q).

A parol demise, valid under the second section, may be as special in its terms as a regular lease; and the stipulations it contains may be proved by parol (r). Where the lessee of a house, and his partner in trade, agreed to pay the lessor annually, during the residue of the lessee's term, ten per cent. on the cost of new buildings if the lessor would erect them; it was held, 1. That this

(i) Shepherd v. Hodsman, 18 Q. B. 316; 3 Geo. IV. c. 126, s. 57.

(k) Stratton v. Pettit, 16 C. B. 420. See however Parker v. Taswell, post, p. 833.

(1) Ryley v. Hicks, per Raymond, C. J., B. N. P. 173; 1 Str. 651, S. C.; but probably from a different note. In Inman v. Stamp, B. R. Trin. 55 Geo. III., Dampier, J., said the practice had been with the foregoing case of Ryley v. Hicks, although he rather inclined to think that the 2nd section of the statute, taken with sect. 4, was confined to leases executed by possession, on which two-thirds of the

agreement was not required by the Statute of Frauds to be in writing, as being collateral to the existing contract between the lessor and the lessee, and not being a demise of the new buildings. 2. That although the partner quitted the premises, he was liable on the agreement, jointly with the lessee, during the residue of the term (s). So where a landlord who had demised premises by a lease for a term of years at 50l. a year, after some years were expired, agreed with the tenant to lay out 507. in making improvements upon them, the tenant undertaking to pay the landlord an increased rent of 51. a year during the remainder of the term, to commence from the quarter preceding the completion of the work: the agreement was reduced into writing, but the defendant refused to sign it. The improvements were finished in November, 1827, and the defendant, after the Christmas following, paid the increased rent for that quarter; but refused to pay it afterwards. An action of assumpsit having been brought for the arrears for two years and upwards; it was held, that the landlord was entitled to recover; and that the case did not fall within the statute, for, though called a rent, it was not so in the strict technical meaning of the term; it was a matter of mere personal contract (t).

Any uncertain Interest in Land.-In Wood v. Lake (u), the defendant had agreed, by parol, that the plaintiff should have the liberty of stacking coals upon part of a close belonging to the defendant, for the term of seven years; and that during this term, the plaintiff should have the sole use of that part of the close (x). After the plaintiff had, pursuant to this agreement, enjoyed the liberty of stacking coals for three years, the defendant locked up the gate of the close. The question was, whether this agreement was good for seven years? Lee, C. J., and Denison, J., were of opinion that it was; observing, that in the case of Webb v. Paternoster (y), it was laid down that the grant of a licence to stack hay upon land did not amount to a lease of the land. And as the agreement in the present case was only for an easement and not for an interest in the land, it did not amount to a lease; and, consequently, it was, notwithstanding the statute, good for seven years. Foster, J., concurred in opinion, that the agreement did not amount to a lease; but he inclined to be of opinion, that the words in the statute, "any uncertain interest in land," extended to it, and consequently that it was not good for more than three years. Lee, C. J., and Denison, J., were of opinion that these words re

(s) Hoby v. Roebuck, 7 Taunt. 157. And see Crowley v. Vitty, 7 Exch. 319.

(t) Donellan v. Read, 3 B. & Ad. 899. (u) Say. Rep. 3. A short note of this case, when it was first argued and adjourned, will be found in Serjt. Hill's MSS. vol. 26, p. 287; and see Sugden's

Law of Vendors and Purchasers, p. 99 (13th edit.).

(x) From a MS. note of this case, it appears that the consideration to be paid by the plaintiff for the liberty of stacking the coals, was 20s. for every stack.

(y) Palm. 71. See 13 M. & W. 846.

lated only to interests which are uncertain as to the time of their duration. After consideration, it was held, that the agreement, though by parol, was good for seven years. Whether the court were right in deciding that this particular agreement was not a lease has been doubted (z); it has been overruled, however, as to the other point, not on the ground that the agreement was for an interest in land, but because an easement cannot be created without deed (a). And it may be considered as settled, that a mere licence is not within either the first or fourth sections of the statute (b). But although an easement cannot be created by parol, an agreement for the sale of an interest in land, without a note in writing, may, nevertheless, operate as a licence until countermanded, so as to excuse the entry of the purchaser on land; it cannot, however, be made available in any way as a contract (c). It may perhaps be safely laid down, that a parol contract, not being within the exception in the statute, will not create any interest in the land (d).

Shall have the Force and Effect of Leases at will ONLY-shall be void AT LAW (8 & 9 Vict. c. 106, s. 3). Notwithstanding these words, a lease by parol, for a longer term than three years, will, if followed by occupation and payment of rent (e), be evidence of a tenancy from year to year, subject to such of the terms of the parol lease as are applicable to such a tenancy. The tenant, on entry, is tenant at will, but is converted into a tenant from year to year on payment and acceptance of rent (f). In an action against a tenant for double rent, for holding over after the expiration of his term and a regular notice to quit, the first count in the declaration stated a holding under a certain term, determinable on the 12th of May then last past; and other counts stated a holding from year to year, determinable on the same day. It appeared in evidence, that the defendant had held the premises for two or three years, under a parol demise for twenty-one years from the day mentioned, to which the notice to quit referred. It was con

(z) See 13 M. & W. 850; but see Sugd. Vend. & Pur. (13th edit.) 99.

(a) Wood v. Leadbitter, 13 M. & W. 858; Hewlins v. Shippam, 5 B. & C. 221; Perry v. Fitzhowe, 8 Q. B. 757; Roffey v. Henderson, 17 Q. B. 574; Wallis v. Harrison, 4 M. & W. 538; Bird v. Higginson, 2 A. & E. 696; 6 A. & E. 824, S. C. ; Thomas v. Fredericks, 10 Q. B. 775; and see Williams v. Morris, 8 M. & W. 488.

(b) Winter v. Brockwell, 8 East, 310; Rex v. Horndon, 4 M. & S. 562; Rex v. Standon, 2 M. & S. 461; and see Cocker v. Cooper, 1 C. M. & R. 418, note (c), tó Coryton v. Lithebye, 2 Wms. Saund. 113, a. (c) Carrington v. Roots, 2 M. & W. 248; Wood v. Manley, 11 A. & E. 34. As to when a licence is or is not revocable, and

as to "a licence coupled with an interest," see note (c) to Coryton v. Lithebye, 2 Wms. Saund. 113, a.; Adams v. Andrews, 15 Q. B. 284; Crosby v. Wadsworth, 6 East, 602; Perry v. Fitzhowe, 8 Q. B. 757; Taplin v. Florence, 10 C. B. 744.

(d) See per Jervis, C. J., in Taplin v. Florence, 10 C. B. 762. See also Tyler v. Bennett, 5 A. & E. 377, as to a right to take water from a well, being an interest in land.

(e) See per Pollock, C. B., 1 H. & N. 735.

(f) See note (a) to Berrey v. Lindley, 3 M. & G. 512, and notes to Clayton v. Blakey, 2 Sm. Lead. Ca. 88.

tended at the trial, that the holding should have been stated according to the legal operation of it, as a tenancy at will; and, as there was not any count adapted to that statement, the plaintiff ought to be nonsuited. Rooke, J., however, considering that it amounted to a tenancy from year to year, overruled the objection, and the plaintiff obtained a verdict. On motion to set aside the verdict, on the ground of a misdirection, Lord Kenyon, C. J., said, that the direction was right, for such holding now operates as a tenancy from year to year. The meaning of the statute was, that such an agreement should not operate as a term; but what was then considered as a tenancy at will has since been properly construed to enure as a tenancy from year to year (g). If a landlord lease for seven years by parol, and agree that the tenant shall enter at Lady-day and quit at Candlemas, though the lease be void by the Statute of Frauds, as to the duration of the term, the tenant holds under the terms of the lease, in other respects; and therefore the landlord can only put an end to the tenancy at Candlemas (h). And if the landlord suffer the term to run out, the tenancy will expire at its end, without notice to quit (i). The effect of a demise exceeding three years, but not by deed, since 8 & 9 Vict. c. 106, s. 3, is the same as that of such a demise by word of mouth before that act, notwithstanding that the words are, "shall be void at law" (k). The way in which these words operate is, that the supposed contract between the parties is per se invalid, and that no action can be brought expressly upon it (7). But it has recently been held in equity that after part performance and entry, specific performance of such a contract may be decreed, and an injunction to restrain ejectment obtained (m). So also on entry and payment of rent a tenancy from year to year will be implied on such of the terms of the demise as are not inconsistent with such tenancy (n); and, if by writing, the written document may be used as evidence of those terms (o). It has been held, that an agreement to put and keep in repair (p), and a proviso for re-entry on non-payment of rent (q), are such terms as will be so implied. The tenancy implied will always be determinable by six months' notice to quit, on either side (r), even where the parol agreement is for a tenancy until two years' notice to quit is given (s). An agreement to grant

(g) Clayton v. Blakey, 8 T. R. 3; 2 Sin. Lead. Ca. 88, S. C.

(h) Doe d. Rigge v. Bell, 5 T. R. 471; 2 Sm. Lead. Ca. 84, S. C.; and see De Medina v. Polson, Holt, N. P. 47.

(i) Tress v. Savage, 4 E. & B. 36; Doe d. Tilt v. Stratton, 4 Bingh. 446; Moffat v. Davenish, 15 Q. B. 257; Berrey v. Lindley, 3 M. & G. 498; 4 Sc. N. R. 61, S. C. (k) Tress v. Savage, supra.

(1) Stretton v. Pettit, 16 C. B. 420. (1) Parker v. Taswell, 27 L. J., Chan. 812.

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Selwyn's Abridgement of the Law of Nisi Prius, Svazek 2