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to the duration of the lease, may still regulate the terms Chap. I. on which the tenancy subsists in other respects, as to the rent, the time of the year when the tenant is to quit, &c.,(a) and this whether the agreement is void as not amounting to a lease, (b) or whether the lease is void as not being duly executed under a power :(c) but the terms must not be at variance with the species of tenancy which the law under the circumstances creates. (d)

In Tooker v. Smith (e) an agreement for a lease contained a stipulation that the tenancy should continue until after two years' notice to quit had been given ; and it was held that it could not be implied that the stipulation as to the two years' notice to quit, was one of the terms under which the tenant held. Where a party was let into possession, and paid rent, Covenants in

farming lease. under an agreement for a future lease for years,

which was to contain a covenant against taking successive crops of corn, and a condition of re-entry for breach of covenants, it was held, that he became a yearly tenant, subject to the above terms of conditions, and that ejectment might be brought upon successive crops of corn being taken. (f) In Pistor v. Cater (g) the tenant entered upon

( the land under an agreement for a lease as soon as the

(a) Doe v. Bell, 5 T. R. 471; (d) Berrey v. Lindley, 3 M. & 2 Sm. L. C. 98; Doe v. Breach, Gr. 514, 4 Sc. (N. R.) 61, per 6 Esp. 106; Arden v. Sullivan, Maule, J.; Hunt v. Allgood, 10 14 Q. B. 832; Doe v. Mofatt, C. B. (N. S.) 253; Bennett v. 15 Q. B. 257; Tress v. Savage, Ireland, E. B. & E. 326. 4 E. & B. 36 ; 18 Jur. 680; 23 (e) 1 H. & N. 732. L. J. Q. B. 339.

(f) Doe v. Amey, 12 A. & E. (b) Richardson v. Gifford, 1 476, 4 P. & D. 177. A. & E. 52.

(9) 9 M. & W. 315. (c) Beale v. Sanders, 3 Bing. W. C.) 850; 5 Scott, 58.

Chap. I.

a

Covenant to paint.

lord's license could be obtained, but no license ever was obtained. Lord Abinger said :-" This is a contract which is to bind both parties, even if no lease be granted. ... No lease having been made, but the defendant having occupied for the whole of the term agreed upon, and having had the full benefit which he could have enjoyed under the lease, he cannot now say that the covenants are not binding.”

By an agreement, not under seal, the plaintiff agreed to let to the defendant, and the defendant to take of the plaintiff, a house and premises for seven years, upon the terms (amongst others) that the defendant would in the last year of the term, paint, grain, and varnish the interior, and also whitewash and colour. The defendant entered under the agreement, and occupied and paid rent during the whole period of seven years. In an action for not painting, &c., the interior, and whitewashing and colouring in the seventh year, it was held that the defendant must be taken to have occupied on the terms that, if he should continue to occupy during the whole period of seven years, he would do those things which were by the agreement to be done in the seventh year, and that he was therefore liable. (a)

A proviso in a lease for re-entry on non-payment of rent is a condition which attaches to the yearly tenancy created by the tenant, holding over and paying rent after the expiration of the lease.(6)

In Lee v. Smith (c) A became tenant to the defendant of certain premises, under the terms of a written agreement (not under seal) for a term exceeding three years,

Proviso of reentry.

Rent paid in advance.

(a) Martin v. Smith, L. R.9, Ex. 50.

(6) Thomas v. Packer, 1 1 H. &

N. 669; Watson v. Wand, 8
Excb. 335.

(c) 9 Exch. 662.

the rent payable quarterly in advance.

A occupied CHAP. I. the premises for some time, and paid several quarters' rent, and the receipts given to him by the defendant's agent stated that such payment was in advance, although in fact A never paid the rent in advance. It was held, nevertheless, that although the agreement was void under the 8 & 9 Vict. c. 106, as not being under seal, still that the receipt taken was ample evidence of the tenancy being upon the terms of the rent being paid quarterly in advance. So tenants under a void agreement or void Repairs. lease have been held liable to repair.(a) A parol demise rendered valid by the second section Parol lease

may be special of the Statute of Frauds, may contain the same special in its terms. stipulations as a regular lease, and the stipulations may be proved by parol. In Lord Bolton v. Tomlin (6) at a letting of lands, the terms of letting were read from a printed paper, and a party present agreed to take certain premises from Lady Day then next, when the lease of the then tenant would expire. No writing was signed by the parties or their agents, but there was at the foot of the printed paper a memorandum, also read over to the future tenant, stating that the parties had agreed to let and to take, subject to the printed terms, the name of the farm and the rent, and that the letting was for one year certain from Lady Day, and so from year to year till notice to quit. Some of the terms were special, having relation to husbandry. It was held that on the trial of an action by the landlord against the tenant for a breach of them, the above-mentioned paper might be referred to, to refresh the memory of a witness as to such stipulations.

(a) Richardson v. Gifford, 1 A. & E. 52; Beale v. Sanders, 3 Bing. (N. C.) 850; 5 Scott, 58.

(b) 5 A. & E. 856 ; 1 N. & P. 247.

CHAP. I.

Collateral agreements.

Where the lessee of a house and his partner in trade, agreed to pay the lessor annually during the residue of the term, 10 per cent. on the cost of new buildings, if the lessor would erect them; it was held, first, that this agreement was not required by the statute to be in writing ; secondly, that though the partner quitted the premises, he was liable on this collateral agreement during the residue of the term.(a) So where the defendant was tenant to the plaintiff of a house and bakehouse under a lease for twenty years, at the yearly rent of £50, and being desirous of some improvements in the house, proposed to the plaintiff to lay out £50 on such alterations, which the plaintiff consented to do; and the defendant thereupon agreed to pay him an increased rent of £5 a year during the remainder of the term, to commence from the quarter preceding the completion of the work, and a memorandum in writing was prepared to that effect, which the defendant refused to sign. The alterations were completed in November, 1827, at an expense of £55, and the defendant after Christmas, 1827, paid the increased rent for the first quarter, but afterwards refused to pay any more than the original rent. On an action of assumpsit, brought to recover arrears of the increased rent, it was held, that the landlord having done the work might recover the arrears, and that the case did not fall within the statute, the additional sum, though called rent, being a mere matter of personal contract.(6)

Where a tenancy from year to year by entry under an agreement for a lease, or a void lease, has been created, it can only be determined by six months' notice to quit,

Determination of term under void lease.

(a) Hoby v. Roebuck, 7 Taunt. 157; see also Crowley v. Vitty, 7 Exch. 319.

(6) Donellan v. Read, 3 B. & Ad. 899.

CHAP, I.

or by surrender in writing.(a) Thus where A entered upon premises as tenant to B under an agreement not binding under the statute, for five years and a half from Michaelmas, 1823, and in 1826 a negotiation was entered into for a term of seven years “from the expiration of the present term," at an increased rent, the landlord to make some alterations, which he did, but no lease was ever executed: and at Michaelmas, 1829, a whole year's rent was paid at the increased rate, and payments were afterwards made on the same footing; it was held that a notice given on the 11th March, 1835, to quit at Michaelmas was a valid notice. (V) If, however, the agreement provides that the tenant shall enter on a certain quarterday and quit on another, the tenant holds under the terms of the lease in other respects, and the landlord can only put an end to the tenancy on the particular quarter-day fixed by the agreement.(c)

But where the agreement provided that the lessor should not turn out the tenant so long as he paid the rent, it was held that the agreement either purported to be a lease for life, which would be void as not being creatable by parol ; or, if it operated as a tenancy from year to year, was necessarily determinable by either party on giving the regular notice to quit. (d) And the tenancy may be determined by the six months' notice to quit, even if the parol agreement is that two years' notice shall be given.(e)

(a) Chapman v. Tovner, 6 2 Sm. L. C. 98; De Medina v. M. & W. 100; Tress v. Savage, Polson, Holt, N. P. 47. 4 E. & B. 36; 18 Jur. 680; 23 (d) Doe v. Browne, 8 East, L. J. Q. B. 339.

165; but see Browne v. Warner, (6) Berrey v. Lindley, 3 M. & 14 Ves. 156; In re King's LeaseGr. 498.

hold Estates, L. R. 16, Eq. 521. (c) Doe v. Bell, 5 T. R. 471; (e) Tooker v. Smith, 1 H, &

N. 732.

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