mediate legal interest in the term, such an agreement will amount to an actual lease; and also, on the other hand, that, although words of present demise are used, yet if it appears on the whole, that no legal interest was intended to pass, and that the agreement was only preparatory to a future lease to be made, the construction will be governed by the intention of the parties, and the contract will be held not to amount to more than merely an agreement for a lease, which equity will enforce. An agreement to lease at a certain rent, and that the lessor should not turn out the tenant so long as he paid the rent, and did not sell, &c. any article injurious to the lessor's business, creates only a tenancy from year to year, determinable by either party giving a regular notice to quit, for it must otherwise operate as a lease for life, which cannot be created except by deed. (a) It was formerly held that an agreement for a lease formed as valid a defence to an action of ejectment as a lease itself would do; but it is now clear that an agreement for a lease cannot in any case avail at law after a regular notice to quit. (b) An instrument, not under seal, whereby A. agrees to let, and B. agrees to take certain premises, to hold henceforth for a term of thirty-four years, determinable by either party on giving twelve months notice at the end of the seventh, fourteenth, or twentyeighth years at a certain yearly rent, clear of all taxes, and B. binds himself to keep the premises in tenantable repair during the term, with a further agreement on the part of A. to grant a lease on the like terms, with usual covenants within three months is not. a lease, though it contain words of present contract. (c) An agreement to grant a lease contains no implied agreement for general warranty of the land, nor for delivery of an abstract of the lessor's title. (d) An agreement between A. B. and C. D. by which A. B. agrees to pay C. D. £140 a year, in quarterly payments, for a house, garden, &c. (describing the situation) for the term of seven, fourteen, or twenty-one years, at the option of the tenant, the rent to (a) Doed. Warner v. Browne, 8 East.165. (b) Weakly d, Yea v. Bucknell. Cowp. 473. Goodtitle d. Estwick v. Way. 1. T. R. 735. Doe d. Hodsden v. Staple. 2. T. R. 684. Roe d. Reade. v. Reade. 8. T. R. 118-123. (c) Colley v. Streeton, 3 Dowl. and Ryl. 522. (d) Gwillim. v. Stone. 3 Taunt. 433. Temple v. Brown. 6 Taunt. 60. and see Purvis v. Rayer, 9 Price, 488. Fildes v. Hooker, 2 Meriv. 424. commence from the 1st January, &c. is a lease, and not merely an agreement for one. (a) An agreement not under seal, for a lease of a public-house, contained a clause that the party neglecting to comply with his part of the agreement should pay the sum of £100, mutually agreed upon to be the damages ascertained and fixed on breach thereof. Held that the party making a default was not liable beyond the damages actually sustained. (b) An agreement to make a lease is a good lease in equity, and a confirmation of such lease by him in remainder is a good lease. (c) Remedy in Equity.-The court of Chancery will enforce the performance of an agreement to make a lease, &c. (d) And where a specific performance has become impossible, owing to the lessor's having disposed of the premises to another, the court will direct a reference to the master, to enquire what damage plaintiff had sustained by the nonperformance of the lessor's contract.(e) An agreement for a lease from a dean and chapter, executed by the dean for himself and chapter, though signed by him only, shall bind the chapter notwithstanding.(ƒ) If an agreement be by A. B. and C. to make a lease, and it is executed by A. it shall be decreed that B. and C. who were the sons of A. shall execute it, though the agreement was by parol; for it was out of the statute.(g) Tenant for life with a leasing power, entered into an agreement by articles, to make a lease pursuant to the power. This agreement shall bind the remainder man. (h) But as a lease agreed to be granted contrary to a power cannot bind the inheritance, and may embarrass the remainder man, the court will not direct such a lease to be executed. (i) An agreement to assign a lease is good against an executor. (k) With respect to parol agreements, it is an established rule, (1) (a) Wright v. Trevezant, 3 C. & P. 441. (b) Randall v. Everest, 1 M. & M. 41, 2 C. and P. 577, S. C. (c) Hamilton v. Lady Cardess, Bro. Cas. Parl. (d) 1 Mad. Chan. 360, &c. (e) Greenaway v. Adams, 12 Ves. 395. but see Green v. Smith, 1 Atk. 572. (f) Com. Dig. tit. Agreement. Dean and Chapter of Ely v. Stewart. 2 Atk. 44. that a parol agreement, part performed, is not within the provisions of the statute of Frauds, but will be decreed to be executed by a Court of Equity; for where a part of the agreement is performed on one side, it is but common justice that it be carried into execution. (a) Plea, therefore, of the statute of Frauds to a bill for discovery of a parol agreement, part performed, will not be allowed. So a parol agreement, confessed or in part executed, is binding. (b) And a parol agreement may be discharged by parol. (c) As to what acts amount to a part performance, the general rule is, (d) that the acts must be such as could be done with no other view or design than to perform the agreement, and not such as are merely introductory or ancillary to it. A tender of conveyances, therefore, is not part performance of an agreement; it must be something in actual execution of the contract, not merely towards the execution: thus, in a letter, "I will give £16,500." answer, "I will not take less than £17,000." answer returned, "I will give £17,000," this is not an agreement executed in writing within the Statute of Frauds. (e) Whether a note, written in the third person, "Mr. T. proposes &c. (making an offer to purchase) being accepted, amounts to a contract in writing signed, within the Statute of Frauds, (ƒ) quære? Delivery of possession, however, or payment of money, is a part performance of an agreement not reduced into writing: (g) for delivery of possession by a person having possession to the person claiming under the agreement is a strong and marked circumstance. (h) Thus, upon an agreement for the surrender of a term where the lessor accepts the key, he shall be bound to accept of the surrender. (i)-But though taking possession, or such other act in pursuance of an agreement, is sufficient evidence to have the agreement decreed, yet the circumstance of vendee's ordering conveyances to be drawn in pursuance of a parol agreement, and going several times to see the premises, and a letter from the vendor, mentioning the agreement, but not the price, will not induce the Court to decree a (a) Sewel v. Bridge. 1 Ves. 297. (g) Lacon v. Mertins. 3 Ark. 1. 4. (i) Natchbolt v. Porter. 2 Vern. 112. and see Mollet v. Brayne, 2 Campb. 103, Whitehead v. Clifford, 5 Taunt. 518. Thomson v. Wilson, 2 Stark. Ni. Pri. 379. performance; nor will sending an appraiser to value the thing agreed for. (a) So in another case, it is said that where a man, on promise of a lease to be made to him, lays out money in improvements, he shall oblige the lessor afterwards to execute a lease, because it was executed on the part of the lessee. (b) And where a lessor made a verbal promise to his lessee to secure him in the possession of the premises during the lessee's life, in consequence of which promise the lessee made considerable alterations and improvements, and after the lessor's death, a memorandum of this promise was found among his papers, wherein he expressed a hope that the same would be observed. Lord Thurlow held that the memorandum took the case out of the Statute of Frauds, and directed a lease to be made for ninety-nine years, determinable on his life. c) But the bare entry of a steward in his lord's contract-book with his tenant is not an evidence of itself that there is an agreement for a lease between the lord and one of the tenants, but must be supported by other proof. (d) Plaintiff, pursuant to a parol agreement for a building lease of Wildhouse, had proceeded to pull down part and build part. Before any lease executed, the owner of the soil died. The defendants, his representatives, knew nothing of the matter, and insisted on the Statute of Frauds. The Lord Keeper dismissed the bill, but on appeal to the Lords in parliament, his dismission was reversed, and a building lease decreed. (e) If there be a parol agreement for a lease for twenty-one years, and lessee enter and enjoy for several (as for example six) years, he shall not, upon a bill brought to compel him to execute a counterpart for the residue of the term, plead the statute. (ƒ) For an agreement, though not in writing, being executed on one part and an enjoyment accordingly, equity will not avoid it, as it has been already carried into execution. (g) But where a bill was by a tenant of a farm for a specific per (a) Clerk v. Wright. 1 Atk. 12. 1 Eq. Cas. Abr. 20. (b) Prec. Chan. 561. Mighell, 18 Ves. 328. Gregory v. (c) Allen v. Bower. 3 Bro. R. 149. sed vide Clinan v. Cooke. 1 Scho. & Lefroy. 36, 37. (d) Charlwood v. Duke of Bedford. 1 Atk. 497-499. (e) Pyke v. Williams. 2 Vern. 455. 1 Eq. Cas, Abr. 21. (f) Earl of Aylesford's Case. 2 Str. 783. (g) Prec. Chan. 519. formance of a parol agreement for a new lease, stating improvements made at a considerable expense and continuance of possession after the expiration of the old lease, and payment of an increased rent under the agreement, the plea of the Statue of Frauds was ordered to stand for an answer, with liberty to except. (a) Bill for specific performance of a parol agreement for a lease within the Statute of Frauds charging possession taken under the agreement and other acts of part performance; plea of the statute and answer not denying the acts alleged as a part performance, but stating, that being advised that he entered as tenant at will, he gave notice to quit: plea overruled. (b) Though the agreement be by parol, yet if it be agreed to be reduced into writing, and part of the agreement is executed, but the reducing of it into writing is prevented by fraud, it may be good. (c) Therefore, an agreement to assign a term and goods, and that it should be put in writing, was decreed to be executed, it being part of the agreement, that it should be put in writing, and part of the money having been paid. (d) So, if a lease by A. to B. is agreed by parol, and drawn and ingrossed by the counsel of B. and afterwards executed by A. it shall not be avoided by B. (e) Bills were to have an execution of parol agreements touching leases of houses, setting forth, that in confidence of these agreements, the plaintiffs had expended great sums about the premises; and it was alleged, that it was agreed, that the agreements should be reduced into writing: the defendant pleaded the Statute of Frauds. Lord King said, that the difficulty was, that the act makes void the estate, but does not say that the agreement itself shall be void; and therefore, he thought, that if that subsisted so as to entitle the party to damages at law, it might be decreed in equity, and directed that point to be tried; but as to the improvements made, his Lordship was clearly of opinion that for such as were of use and necessity, and not merely for humour and fancy, the party was entitled to have satisfaction. (f) Lease was not decreed upon expenditure in repairs and improvements under an alleged agreement proved by one witness, the answer (a) Wills v. Stradling. 3 Ves. 378. (d) Hollis v. Whiteing. 1 Vern. 151. |