LEASE. A species of contract for the possession and profits of lands and tene ments either for life or for a certain term of years, or during the pleasing) of the par ties.
2. One of its essential properties is, that its dn ration must be for a shorter period than the dura tion of the interest of, the lessor in Cat land ; for if be disposes of his entire interest it becemes aeeignment, and is not a lease. In other words, the granting of a lease always supposes that the grantor reserves to himself a reversion in the leased premises.
And a distinction is to be noted between a lease and a mere agreement for a lease. The whole question, however, resolves itself into one of con struction and an instrument is to be considered either a 'lease or an agreement for a lease, accord ing to what appears to he the intention of the par ties; thengh, generally, if there are apt words of demise followed by possession, the instrument will be held a lease, 2 Johns. N.Y. 47 ; 5 id. 74; 9 N.Y. 44; 5 Barnew. & Ad. 1042; 3 Carr. & P. 441 ; 4 Mees. Jo W. Exch. 719; 8 Dingh.178; 1 Q. B. 517; otherwise, if a fuller lease. is to be prepared -and executed before the demise is to take effect and possession to he given. 21 Vt. 172; 24 Wend. N. Y. 201; 3 Stor. C. C. 325; 4 Conn. 238; 9 Ad. E. 644; 1 Pen. & D. 444.
3. The party who leases is oalled th.e levier, he to whom the lease is made the leeeee, and the com. pensatien or oonsideration of the lease is the rent. The words lease end dentin are frequently used to signify the estate or interest oonveyed; but they properly apply to the instrument of oonveyanoe.
'When a lessee parts ,•with.,the. cstate..granted to him, reserving any portion thereof, however.
he makes an underleaek .Titylor Land. &' 14; 15 'Wend. N. Y. 667; 2, Ohio, 221; 8 Piek. Mess. 339; 1 W. Blackst. 482; 13 Mees. & W. Ric.oh. 209. . • •, • , : .The estate, created by &lease, when for years, is, ,ealled a terta (,terntianot),,hecause its duration is li mited and commencement. as well, as its terminatiOn being ascertained by, an express agreement of 'the 'partieS: A n a this iihre,se signifies not only the IiinitatiOn of time or period granted' „for the ocoupation of Um Airemises, but inclndes Also the estate or interest • in, the laud that pass during such period. A term, however,, is perfected , only by the entry pf. the lessee; , for,previous,to this.
the estate remains in the lessor, the lessee having ' a Mere right to enter, vihich right is called au inter. eN,se teriniiii. 1 Washburn, Real Prop. 292-297; 5 ; Barnew. & C. 111 t. 5 Colte,'23 ; Croke Jac. 60; 1 Barnew. & Ald. 606; 1 Brod. & B. 238. • • • .
4. Any thing corporeal: or incorpore,a1 in livery Or in grant may be the subject matter of a lease; and therefore not only: lands and bonsai, but con-imons, ways, fisb eries, franchises, edtovers, annuities, rent Charges, and all other incorporeal .heredita ments, are included i,n the common-law. rule.' • Sheppard, Touchst. 268; 23 Penn. St. 106; 3 N. Y. 151 1. Root, C,onn. 318. See 1 Wash burn, Real Prop. 310. Goods, enattela,. or live .stock may also be demised ;..and, although 'rent cannot technically be said to issue out of these, the contract for its payment is good, and an 'action for rent in arrear may bemain Aained upon such leaSes, Coke, Litt. 57 a; '3 Hen. & 1VI. Va. 470; 31 Penn. St. 20, , leases are made either by paro.t or by de,ed. The former. mode embraces all cases where the: parties agree either orally or by a writing not under seal. The technieal Words generally made use of in the vnitten inent are, "deinise, grant, and to farnz,let ;" . but no .particular form of .expression.is. re quired in any case to create an immediate demise. 8 Bingb. 182 ; 9. Ad. & E. 660 ; 5 Term, 168; 2 Wend. N.Y. 438; Den. N.Y.
• 602 ;- 8 Perm. St. 272; • 12 Me. 135; Williams, Real Prop. 327. Any permissive holding is, in fact, sufficient for the piirpose, and it ma:y be o'ontained in any written memorandum by which it appears to have been the intention of one.of the7parties voluntarily to-dispossess himself of the premises for anygiven period, .and Of the other to assnme the posseSsion for the same period. Taylor; Landl. iC Ten. 26"; I Washburn, Real ProP. 80'Q. The English statute Of frauds, of 29 dharles IL, first re quired .all leases.exceeding three years to be , . writing ; and this statute 'has been gene rally adopted in the United" States. But New York, Connecticut, Micnigan, Indiana,. and have redneed 'the period of an oral lease to one year. 1 Washburn, Real Prop. '299,391 ; 5 Ad. & E. 856 ; Brown% Stat. of 'Fiends, 501-532. .