facts that the document is complete in form, postpones nothing to the future, and indicates a distinct beginning and ending of the interest to be acquired, point clearly to a lease.1 But when it appears that something further is to be done by the parties before the right of possession shall accrue, as that they are to meet and contract again, or when there is no certain beginning or ending of the term designated, or the words of agreement are clearly and wholly future in import, or the contract is in itself doubtful and so conditional in character, the stipulation will be more readily construed to be only a contract for a lease.2 The mere use of the future tense, however, does not in itself produce this latter result. The statement that the landlord "will let" and the tenant "will take," or that they "agree to let," etc., is frequently found in an instrument clearly intended for a lease whose term of operation is postponed. These are simply a few of the most important general rules, that have been formulated by the courts, in their attempts to solve questions presented by hastily drawn and ambiguous documents relating to leaseholds.*

At common law, a contract to make a lease was not required to be in writing. But now in England, and generally in this country, the statutes of frauds declare, for example, that " a contract for the leasing for a longer period than one year" (or other period, in some states three years) " is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the lessor or grantor or by his lawfully authorized agent."5 (a) A contract for a

(a) This is the New York statute. Real Prop. L. § 259, which was originally in 2 J. & V. 88 (1787), and was found in the Revised Statutes

1 Last two preceding notes; 1 Taylor, Landl. & T. § 42.

2 Poole v. Bentley, 12 East, 168; Seymour . Warren, 59 N. Y. App. Div. 122; Kabley v. Worcester Gas L. Co., 102 Mass. 392; Gibson v. Needham, 96 Ga 172; 1 Taylor, Landl. & T. § 40.

3 Browne v. Warner, 14 Ves. 156; People r. Kelsey, 14 Abb. Pr. (N. Y.) 372; Kabley v. Worcester Gas L. Co, 102 Mass. 392; 1 Taylor, Landl. & T. § 38; Chaplin, Landl. & T. § 72.

4 When an instrument intended to be an agreement for a lease does not include the essential stipulations as to what the lease when made is to contain,

2.

or fails to designate the property which is to be leased, it is not enforcible, even as a contract. Mayer . McCreary, 119 N. Y. 434; Franke v. Hewitt, 56 N. Y. App. Div. 497; Law v. Pemberton, 10 N. Y. Misc. 362. And see In re Anderton, L. R. 45 Ch. Div. 476; Gibson v. Needham, 96 Ga. 172; Coffee r. Smith, 109 La. 440; McAdam, Landl. & T. pp. 54, 55.

5 This is the New York form. N. Y. L. 1909, ch. 52, § 259; 1 Stim. Amer. Stat. L. § 4143 (B). In some states, as explained above, this result is reached by virtue of that part of the statute of frauds which makes unen

lease, as well as a lease itself, may be executed by an agent for either of the parties. But, when as usual the instrument is not to be sealed, the agent's authority is not ordinarily required to be given in writing.1 (a)

§ 580. Form and Substance of a Lease. A lease, made quite commonly at the present time in the terse form of a bargain and sale deed (even though the seal be omitted), may be said generally to consist of three parts: These are the primary demising portion, the conditions, and the covenants. As to the first of these, it is sufficient to say that it contains the date, the names of the parties, the consideration, usually a careful stipulation for the rent and how its return shall be rendered, and a description of the property demised. The purpose of the second part, the conditions (subsequent), is to bring about a forfeiture of the lease in case of breach.2 And the covenants are inserted in favor of one party or the other, most frequently in favor of the landlord, to enable him, against whom a breach may occur, to maintain either an action at law for damages, or

of 1830 as 2 R. S. 135, §§ 8, 9. In this statute, as in that as to a lease for over a year, the expression "one year" refers to the actual duration of the tenancy, and has nothing to do with the period of interesse termini. Thus, an oral agreement is good, made January 1, 1908, for a lease to commence February 1, 1908, and continue to February 1, 1909. See Talamo v. Spitzmiller, 120 N. Y. 37; Czermak v. Wetzel, 114 App. Div. 816; Seymour . Warren, 59 App. Div. 120; Prindle v. Anderson, 19 Wend. 391; Cleves v. Willoughby, 7 Hill, 83; Durand v. Curtis, 57 N. Y. 7; Ward v. Hasbrouck, 169 N. Y. 407; Chaplin, Landl. & T. §§ 74-76.

(a) In New York, the authorization of the agent to execute a lease for over a year is expressly required by the statute to be in writing. Real Prop. L. § 242, quoted in N. Y. note to § 572, supra. But to make a written contract for a lease the agent is simply required to be "lawfully authorized"; and so the general rule applies, that his authority may be given orally to make any such contract that is not to be sealed. Champlin v. Parish, 11 Paige, 405; Post v. Martens, 2 Robt. 437; Tallman v. Franklin, 14 N. Y. 584; Moody v. Smith, 70 N. Y. 598; Chaplin, Landl. & T. § 89.

forcible all oral contracts not to be performed within a year. §572, supra. A case may be taken out of the statute, because of part performance by the lessee. Steel v. Payne, 42 Ga 207; Bispham's Prin. Eq. § 385; 1 Taylor, Landl. & T. § 32.

1 Clinan v. Cooke, 1 Sch. & Lef. 29; Moody v. Smith, 70 N. Y. 598; Chaplin,

Landl. & T. §§ 89, 91; 1 Taylor, Landl. & T. § 137.

2 Beach v. Nixon, 9 N. Y. 35, 37; McKelway v. Seymour, 29 N. J. L. 321; § 719, infra. Conditions generally, precedent and subsequent, are discussed hereafter, §§ 715, 722, infra. A condition in a lease is usually subsequent ; and when simply conditions in leases are spoken of, such are the kind meant.

an injunction or specific performance suit in equity.1 It follows that, when the most sweeping and efficacious stipulation possible is desired by a landlord in his lease, it should take the form of a careful covenant, in the first instance, and then include a statement authorizing re-entry and forfeiture of the term, for its breach. The tenant's violation of such an agreement, which is both a condition and a covenant, will ordinarily give the landford an election among three remedies, re-entry and forfeiture, an action at law for damages, redress in equity by injunction or specific performance.2 The completion of our survey of a lease, as creating an estate for years, calls for a brief discussion of each form of these important stipulations, its conditions, and its covenants,

Conditions in Leases.

§ 581. Conditions in Leases are not favored. - The nature and operation of conditions generally, affecting interests in real property, are discussed hereafter.3 A few special words as to such stipulations in leases are proper, however, at this place. And first, it is to be observed that while a condition in a lease is not in itself so objectionable as it is in a conveyance in fee, and this is because the lease is only temporary and it and the condition will terminate together, yet even in the creation of the shortest estates the tendency of the courts is against calling any part of the lease a condition, unless its meaning as such is very clear. In other words, a forfeiture of a leasehold is abhorred practically as much as that of any other interest." And wherever the words employed may reasonably be construed into a mere covenant, the courts will not treat them as creating a condition. This is more fully explained, and exemplified, hereafter, in regard to conditions in all kinds of documents affecting real property."

1 Stuyvesant v. Mayor, etc., 11 Paige (N Y.), 414, 427; Ocean Grove Camp Meeting Ass'n v. Sanders, 67 N. J. L. 1; § 150, supra.

* Brookes v. Drysdale, L. R. 3 C. P. Div. 52; Stuyvesant v. Mayor, etc., 11 Paige (N. Y.), 414; Verplanck v. Wright, 23 Wend. (N. Y.) 506, 510; Riggs r. Pursell, 66 N. Y. 193, 200. See United States v. Commonwealth, etc. Trust Co., 193 U. S. 651, 655.

8 §§ 712, 722, infra.

4 Co. Lit. 103 b, 106; Brookes ". Drysdale, L. R. 3 C. P. Div. 52; United States v. Tenn. & C. R. Co., 176 U. S. 242; Countryman v. Deck, 13 Abb. N. C. (N. Y.) 110; Cunningham v. Parker, 146 N. Y. 29, 33; Chaplin, Landl. & T. § 155.

5 Ibid.; Oil Creek R. C. v. Great Western R. Co., 57 Pa. St. 65; Bispham's Prin. Eq. § 181.

6 § 712, infra.