The question whether a parol lease to take effect in futyro is within the statute of frauds has been the subject of contradictory decisions. It is held that such leases are not within the statute and are therefore valid ; Young v. Dake, 5 N. Y. 463, 55 Am. Dec. 356 ; Whiting v. Ohlert, 52 Mich. 462, 18 N. W. 219, 50 Am. Rep. 265; Becar v. Flues, 64 N. Y. 518; Sobey v. Brisbee, 20 Ia. 105; Jones v. Marcy, 49 Ia. 188 ; Fall v. Hazelrigg, 45 Ind. 576, 15 Am. Rep. 278. Such an agree ment is held to be void, as being within the statute of frauds, in White v. Holland, 17 Or. 3, 3 Pac. 573 ; Jellett v. Rhode, 43 Minn. 166, 45 N. W. 13, 7 L. R. A. 671; Wheeler v. Frankenthal, 78 Ill. 124; Bain v. McDonald, 111 Ala. 269, 20 South. 77 ; Atwood v. Nor ton, 31 Ga. 507 ; Briar v. Robertson, 19 Mo. App. 66. The case of Croswell v. Crane, 7 Barb. (N. Y.) 192, is frequently cited as contrary to the rule of the New York cases above cited, but the opinion in Young v. Dake, supra, which was decided two years later, effectually disposes of Croswell v. Crane as an authority on the subject. The Michigan case and the Oregon case, taking opposite views of this question, are the sub ject of a note by Marshall D. Ewell in 23 Am. L. Reg. N. S. 387, which concludes that "a careful reading of the case of Young' v. Dake, 5 N. Y. 463, 55 Am. Dec. 356, will, it is believed, satisfy any unprejudiced mind as to the correctness of the decision both of that case and of" White v. Holland, supra. In Sobey v. Brisbee, supra, Wright, J., seems to state the only sensible rule of construc tion as being that the statute means the commencement of the term and not the time of performance of the contract, with refer ence to the date of making or entering into the same ; be also pertinently suggests that this construction is in accord with the cus tom of arranging for rental two or three months in advance of the actual term. It is very properly suggested in Dwell's note (supra) that a difference in decision might very naturally result from the retention or omission in the statute of a state of the words in the English statute, "all leases not exceeding the term of three years [or one year, as in many of the states] from the mak ing thereof" ; these words being omitted in the New York statute among others, and re tained in the Illinois statute and others. But it may also be observed, when the cases are critically examined in connection with the state statutes, that some of the courts seem to base their decision upon the general pro vision of the statute with respect to con tracts, even where there is a specific pro vision with regard to leases which might be considered as applying rather than the gen eral rule.
A tenancy from year to year is not a lease or "term" exceeding one year within the meaning of the statute of frauds; Brown v. Kayser, 60 Wis. 1, 18 N: W. 523.
Length of the term,. It was the English rule that if one had power to lease for ten years, and leased for twenty, the lease was bad at law, but good in equity, for the ten years ; Rowe v. Predeauix, 10 East 158 ; Taylor v. Horde, 1 Burr. 120; and in our law doubtless there would be applied to a lease the rule of construction of deeds, that if a grant will not convey all that was in tended, it shall not therefore be entirely void, but shall be construed to convey all that it was in the power of the grantor to convey; Law v. Hempstead, 10 Conn. 23 ; and in Mar tin v. Sterling, 1 Root (Conn.) 210, it was said that "while, under the feudal system, a tenant forfeited his interest by granting a greater estate than he had, by the law of reason and common sense and the laws of this state, a man's deed or grant shall be good and valid for so much as he has right to, and void for the rest." It has been said that, while one cannot grant a lease to con tinue beyond the period at which his own es tate would determine, trustees having a fee may grant a lease valid in law to continue after their estate is determined, but equity may annul such lease if inconsistent or un reasonable ; Greason v. Keteltas, 17 N. Y.
491.
Long term leases. Lord Coke states that, originally, a man could not make a lease for more than 40 years, that being the length of an ordinary generation. See Co. Litt. 45 b, 46 a. Blackstone pointed out, however, that such a rule, if it ever existed, was soon an tiquated and that leases of 50 and 80 years are found in the reigns of Richard II. and Edward IV., and that leases of 300 or even 1,000 years were in use in, the' time of Ed ward III. and probably of Edward I. Their existence is recognized in Shephard's Touch stone. Terms of 199, 999 and 2,000 years appear in the reports of the time of Charles The limit of 99 years would seem to be connected with a somewhat arbitrary esti mate of 100 years as the probable extreme duration of the life of man. Leases for years are in their attributes, evolution and history, a sort of middle term between an estate for life and a tenancy at will. For this reason a period little short of the dura tion of the life of man was devised, so that the lessee might reasonably build or lay out money on the property.
With regard to the 999 year leases the the ory is different. Coke says that a "lease for 1,000 years is never without suspicion of fraud." It is probable that intending lessors therefore selected a term less by a single year, to escape the taint suggested by Coke Such terms became widely recognized and eventually their employment became so fre quent in some parts of England as to attain the universality of a custom.
At the present day the question of the origin of the selection of the periods of 99 and 999 years respectively is academic; but the prima facie propriety of the shorter term as being that suitable for a building lease has expressly recognized in more than one English statute ; 55 Sol. Jour. 420.
As to covenants for a perpetual renewal, see 13 Fiery. L. It. 472. "The argument that the right to the 'reversion' which is to ac crue nearly 1,000 years hence amounts to something substantial cannot be taken seri ously. It rests on a false analogy with the English land law and its elaborate fictions, devised for great political ends, but having no basis in the nature of things or in sound logic or reason ;" Thirteenth and Fifteenth Sts. Passenger Rapid Transit Co. v. R. Co., 31 Pa. Co. Ct. R. 99, per Sulzberger, J. See REVERSION.
Holding over. A tenant for years, who holds over after his term has ended, if he pays no rent, is a wrong-doer and liable to an, action by the landlord; but if the land-' L lord so elects he becomes a tenant for an-1 other year ; Conway v. Starkweathe, 1 Den. (N. Y.) 113; and very slight action by the landlord is sufficient ; Rowan v. Lytle, 11 Wend. (N. Y.) 619. Whether he becomes ten ant for another term is entirely for the elec tion of the landlord, who may treat him as a trespasser or a tenant, but the tenant has no election if he remains in possession, but is subject to the will of the landlord in the matter, even though he desired to abandon the lease and had secured other premises; Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609; MacGregor v. Rawle, 57 Pa. 184; Bacon v. Brown, 9 Conn. 334. Pending the decision of the question of a new tenancy, one who holds over is a tenant at will and not at sufferance ; Emmons v. Scudder, 115 Mass. 367; and if he holds over after notice from the landlord, that if he remains it must be on certain terms, he is presumed to have ac cepted them ; Griffin v. Knisely, 75 Ill. 411. One who enters under a verbal lease for a month and continues in possession paying rent monthly has, in contemplation of law, a new letting with each monthly term; Bor man v. Saudgren, 37 Ill. App. 160. See Tay lor, Landlord and Tenant § 22.