oral lease is to create a tenancy from year to year, independently of the fact or mode of payment of rent.150

Although the parol lease is void, yet if the tenant enters and occupies, the stipulations contained therein control the relations of the parties, so far as they are applicable to the tenancy by will or from year to year which arises between them,151 it being presumed that the parties intended a tenancy on the terms of the original agreement, and the law implying a contract between the parties corresponding therewith, so far as it is not in conflict with the statute. And the void lease will control even as to the length of the term, provided the possession of the tenant continue so long, and consequently no notice to quit at the end of such term is necessary,152 A holding under a void agreement for a lease will also, it seems, be regulated by the terms of the agreement.158

(c) Acceptance of lease.

The lease, if not executed by the lessee as well as by the

150 Railsback v. Walke, 81 Ind. 409; Cochran v. Ward, 5 Ind. App. 89, 51 Am. St. Rep. 229; Stewart v. Apel, 4 Houst. (Del.) 314.

151 Browne, St. Frauds, § 39; Doe v. Bell, 5 Term R. 471, 3 Gray's Cas. 416; Richardson v. Gifford, 1 Adol. & E. 52, 3 Gray's Cas. 422; Larkin v. Avery, 23 Conn. 304; Cochran v. Ward, 5 Ind. App. 89, 51 Am. St. Rep. 229; Norris v. Morrill, 40 N. H. 395; Coudert v. Cohn, 118 N. Y. 309, 16 Am. St. Rep. 761; Huntington v. Parkhurst, 87 Mich. 38, 24 Am. St. Rep. 146.

182 Doe v. Stratton, 4 Bing. 446, 3 Gray's Cas. 421; Tress Y. Savage, 4 El. & Bl. 36, 3 Gray's Cas. 435; Elliott v. Stone, 1 Gray (Mass.) 571; Hollis v. Pool, 3 Metc. (Mass.) 350. And see Reeder v. Sayre, 70 N. Y. 180, Finch's Cas. 775; Coudert v. Cohn, 118 N. Y. 309, Finch's Cas. 780. Contra, Johnson v. Albertson, 51 Minn. 333.

The end of the yearly holding involved in the tenancy from year to year, created by the payment of rent under the void lease, is not fixed by the time named in such lease for the end of the term. Coudert v. Cohn, 118 N. Y. 309, Finch's Cas. 780. Contra, Doe v. Bell, 5 Term R. 471, 3 Gray's Cas. 416.

153 Doe v. Amey, 12 Adol. & E. 476, 3 Gray's Cas. 426; Crommelin

lessor, must be accepted by the latter, in order that he may be bound by any stipulations therein on his part to be per forined.154

(d) Lease and contract for lease.

A difficult question quite frequently arises as to whether a certain instrument constitutes a lease, or merely a contract for a lease to be made in the future. It is a question of the intent of the parties, to be determined by a construction of the instrument, taken as a whole.155 Accordingly, if there is an agreement that certain things shall be done as preliminary to a lease, or the instrument fails to show clearly the beginning or duration of the term, or the amount of rent to be paid, it will be considered as merely a preliminary agreement. 156 The fact that the instrument evidently contemplates a future lease will not necessarily render it an agreement merely, though such will be the effect of an intention shown that such future lease shall be executed before the demise shall take effect.157 The fact that possession is actually taken by the intending lessee is regarded as strong evidence that the instrument was intended as a lease, though not conclusive on the question.158

v. Thiess, 31 Ala. 412, 70 Am. Dec. 499; Larkin v. Avery, 23 Conn. 304.

1841 Washburn, Real Prop. 315; Camp v. Camp, 5 Conn. 291, 13 Am. Dec. 60.

155 1 Taylor, Landl. & Ten. § 38; Fawcett, Landl. & Ten. (2d Ed.) 79; Bacon v. Bowdoin, 22 Pick. (Mass.) 401.

1561 Taylor, Landl. & Ten. §§ 40, 42; Kabley v. Worcester Gas Light Co., 102 Mass. 392, Finch's Cas. 721.

157 Fawcett, Landl. & Ten. (2d Ed.) 80; 1 Washburn, Real Prop. 301; Poole v. Bentley, 12 East, 168; Jackson v. Kisselbrack, 10 Johns. (N. Y.) 336, 6 Am. Dec. 341; Griffin v. Knisely, 75 Ill. 411; Boisseau v. Fuller, 96 Va. 45.

158 Jenkins v. Eldredge, 3 Story, 325, Fed. Cas. No. 7,268; Jackson v. Kisselbrack, 10 Johns. (N. Y.) 336, 6 Am. Dec. 341; Potter . Mercer, 53 Cal. 667; McGrath v. City of Boston, 103 Mass. 369; Kimball v. Cross, 136 Mass. 300.

The importance of the question lies in the fact, among others, that by a lease the intending lessee acquires an actual interest in the land which he may set up as against third persons, which he cannot do under a mere agreement, and furthermore, in the case of a lease, the parties are bound by the stipulations and covenants expressed and implied therein, and by no others, while, if it is a mere agreement, the covenants may be rectified or additional ones supplied before the execution of the lease.159

38. Entry by lessee.

In order that the estate be actually created in the lessee, it is necessary, at common law, that he enter on the land, and until he makes such entry he is said to have a mere interesse termini, or interest in the term,160 and the lessee under a lease to commence in the future is necessarily in the same position.161 Before entry, neither the lessee nor his assignee can maintain trespass in respect to the demised premises,162 but he may sue in ejectment after the time fixed for the beginning of the lease, since this action is based on the fictitious confession of entry by the defendant.163 This interesse termini may be assigned by the lessee, and will pass to his personal representatives at his death, though it cannot, for the technical reason that the whole estate is considered to be in the lessor, be surrendered to the latter by the lessee. The entry may accordingly be made by his assignee or personal

159 1 Washburn, Real Prop. 302; 1 Taylor, Landl. & Ten. § 37; Potter v. Mercer, 53 Cal. 667; Weed v. Lindsay, 88 Ga. 686.

160 Co. Litt. 46b; 2 Bl. Comm. 144; 1 Taylor, Landl. & Ten. § 15. 161 Fawcett, Landl. & Ten. (2d Ed.) 185; Joyner v. Weeks [1891] 2 Q. B. 31; Young v. Dake, 5 N. Y. 463, Finch's Cas. 728, 55 Am. Dec. 356; Becar v. Flues, 64 N. Y. 518, Finch's Cas. 722.

162 Fawcett, Landl. & Ten. (2d Ed.) 186; Wheeler v. Montefiore, 2 Q. B. 133; Brewer v. Stevens, 13 Allen (Mass.) 346, 350.

163 1 Washburn, Real Prop. 296; Doe v. Day, 2 Q. B. 147; Trull v. Granger, 8 N. Y. 115; Becar v. Flues, 64 N. Y. 518, Finch's Cas.

representative, and the death of the lessor before entry is immaterial.164

The lessor is bound to give possession to the lessee, and, if he fails so to do, he is liable to the latter in damages, generally to the amount of the difference between the actual value of the lease and the amount of the rent reserved, and also any other damage resulting from the breach of the contract, such as expenses incurred in preparing to occupy the premises.165 On the other hand, the lessee is liable on his covenant to pay rent, even though, through his own fault, he fail to enter, since such liability arises from contract, and not from the relation of landlord and tenant.186

39. Certainty of term.

It is a part of the very definition of an estate for years that the term of its duration be certain, but the actual length of the term need not be stated in the lease, provided it can be ascertained therefrom before the lease takes effect in interest or possession. So, the term may be named to continue "during the minority of" a person named, or to endure for a certain time from the happening of a certain contingency, as in the case of a lease for twenty years after payment of

722. Contra, Petroleum Co. v. Coal, Coke & Mfg. Co., 89 Tenn. 381; Sennett v. Bucher, 3 Pen. & W. (Pa.) 392.

164 Co. Litt. 46b; Fawcett, Landl. & Ten. (2d Ed.) 185; 1 Washburn, Real Prop. 296; 4 Kent, Comm. 97; Whitney v. Allaire, 1 N. Y. 305.

165 Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415; Driggs V. Dwight, 17 Wend. (N. Y.) 71, 31 Am. Dec. 283; Green v. Williams, 45 Ill. 206; Snodgrass v. Reynolds, 79 Ala. 452, 58 Am. Rep. 601; Townsend v. Nickerson Wharf Co., 117 Mass. 501; Yeager V. Weaver, 64 Pa. St. 425; Berrington v. Casey, 78 Ill. 317; Cohn v. Norton, 57 Conn. 480.

166 1 Taylor, Landl. & Ten. 15; 1 Washburn, Real Prop. 297, 314; Bellasis v. Burbrick, 1 Salk. 209; Tully v. Dunn, 42 Ala. 262; Marix v. Stevena, 10 Colo. 261.

a certain sum by the lessee to the lessor.167 Furthermore, a lease to one for a certain period, provided a person named live so long, or subject to be terminated upon some other contingency, creates an estate for years, since the period for which the term may last is certain, though it may not be reached,168

§ 40. Future terms.

A tenant for years was not considered, at common law, as seised of the lands, but he was regarded, after entry, as "possessed," not properly of the land, but of the term of years, and consequently the rule of the common law, based upon the requirement of seisin, that an estate could not be created to begin in futuro, never applied to these estates.169 § 41. Right to possession during term.

The lessee has the right of exclusive possession and control of the premises, and this right is a distinctive and essential characteristic of the relation of landlord and tenant," 170 and rights of use and occupancy created by mere license, or by personal contracts, such as that of employment or the letting of lodgings, which do not give exclusive control, must be carefully distinguished.171 The lessee may, however, it seems, enter for the purpose of discovering waste or making

167 Co. Litt. 45b; Bishop of Bath's Case, 6 Coke, 34b; Murray v. Cherrington, 99 Mass. 229, Finch's Cas. 724; Western Transp. Co. v. Lansing, 49 N. Y. 499; Reed v. Lewis, 74 Ind. 433, 39 Am. Rep. 88; Bachelder v. Dean, 16 N. H. 265.

168 Co. Litt. 45b; 1 Leake, 200. See post, § 80.

169 4 Kent, Comm. 94; 1 Cruise's Dig. tit. 8, c. 1, § 10; 1 Washburn, Real Prop. 293; Becar v. Flues, 64 N. Y. 518, Finch's Cas. 722; Whitney v. Allaire, 1 N. Y. 305; Young v. Dake, 5 N. Y. 463, Finch's Cas. 728, 55 Am. Dec. 356; Bacon v. Bowdoin, 22 Pick. (Mass.) 401; Elliott v. Stone, 1 Gray (Mass.) 571.

170 Fawcett, Landl. & Ten. (2d Ed.) 84.

171 See post, § 304.