By the Court, Savage, Ch. J.
The important question in the case is, whether the instrument produced is a lease or an agreement for a lease 1 Any words which import a present demise are sufficient to constitute a lease. The words demise, lease, and to farm let, are the proper ones to constitute a lease; but any other words which shew the intention of the parties that one shall divest himself of the possession and the other come into it for a certain time, whatever be the form, will, in construction of law, amount to a lease. (Cruise’s [439] Dig. tit. 32, ch. 5, § 3 to 13.) Some of the cases referred to shew, that if the instrument contains words which import a present grant, they constitute a lease, although there is a stipulation for a further conveyance in future. It has been supposed that all the English cases on this subject have not been uniform. (5 T. R. 163, Law, arguendo, where the cases are referred to, and see Cruise, ubi supra.) But the rule now settled there, as well as here, is, that whether the instrument shall be considerd a lease, or only an agreement for one, depends on the intention of the parties as collected from the whole instrument. The law will rather do violence to the words thanbreak through the intent of the parties by construing it a lease when the intent was manifestly otherwise. (Cruise, ubi supra, § 9.)
Among the cases which I have examined, that which most resembles this is Doe v. Ashburner, (5 T. R. 163.) Jackson, the lessor of the plaintiff, had entered into an agreement with Scarisbrick, who became bankrupt, and the defendant was one of his assignees. It was agreed, as to the fulling mills, &c. of the lessor, that the said mills and conveniences, &c. he (the lessee) shall enjoy, and I (the lessor,) engage to give him a lease in, for the term of 31 years, &c. The lessor then agrees to purchase one yard in breadth to be added to the race ; a building was to be moved, and other covenants on both sides were contained in the agreement. The court were of opinion that the words he shall enjoy, if unrestrained, would be a perfect lease, but that they were qualified by the words, and I engage to give him, a lease. Lord Kenyon says, “ But as the parties agreed, the one to give and the other to receive a future lease, I cannot conceive that this was intended to be a present lease.” He lays stress upon the agreement to purchase an additional piece of ground, without which he infers the lease was not to be granted, and that a further lease was contemplated by the parties. Ashurst, J. concurred, and among other things added, that where the words do not necessarily imply a present demise, and where possession is not given, and there is no other act to manifest such intention, then it is merely an executory contract. He adds, “ Besides, the rent is agreed upon at [440] all events ; and if this were construed to he a lease, the landlord would have a right to distrain for the whole rent, although the addition were not afterwards made by purchase, ancl the only remedy left to the tenant would be by an action at laxv or bill in equity.” Grose, J. concurs that the question was one of intention, and says, “ Now, considering the place as it existed at the time of the agreement, and as it was to exist afterwards, the dates and the quantum of rent, I do not think that it was intended to give a present interest.
The cases in this court assume the same principle. In Hallett v. Wylie, (3 Johns. R. 47,) Van Ness, J. says, whether the contract should be considered a lease or only an agreement for one, must depend upon the intention of the parties to be collected from the whole of the instrument. In that case the plaintiff had agreed to let and the defendant to take a house at a certain rent, and the defendant took possession and held it till the house xvas burnt. There was nothing to shew that the parties contemplated any further assurance; and the words implying a present demise, the court held it an executed contract. The case of Thornton v. Payne, (5 Johns. R. 74,) was an action of covenant for not giving possession of a farm according to contract. The defendant bargained, covenanted and agreed with the plaintiff that he would let and hire to him a certain farm, &c. specifying the terms, rent, conditions, &c. The court held that this was a lease, and not an agreement for one. Spencer, J. says that the [intention of the parties must govern and be sought for from the whole instrument. In the case of Jackson, ex dem. Livingston, v. Kisselbrack, (10 Johns. 336,) the lessor had given the defendant an instrument or memorandum, in which he used the terms hath let and to farm let; the defendant took possession under it, and occupied several years before suit brought. It was agreed in the memorandum that the premises should be surveyed, and then the defendant should take a lease. Spencer, J., in giving the opinion of the court, reviews many of the English cases, in which there were words of present demise, and a covenant for further lease, superadded, and the court considered the instrument as a lease, and he comes to this conclusion: [441] “ that there is no case of a present-demise by apt words,/oZ-lowed by a possession, in which the instrument has not been held to pass an immediate interest.” There are some cases, however, where possession did not follow, in which the instrument was considered an agreement for a lease merely, notwithstanding words of present demise, as I have already shewn. From all the cases, there is nothing to impugn the proposition that the intention of the parties must control, and that intention must be collected from the whole instrument.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court, Savage, Ch. J.
The important question in the case is, whether the instrument produced is a lease or an agreement for a lease 1 Any words which import a present demise are sufficient to constitute a lease. The words demise, lease, and to farm let, are the proper ones to constitute a lease; but any other words which shew the intention of the parties that one shall divest himself of the possession and the other come into it for a certain time, whatever be the form, will, in construction of law, amount to a lease. (Cruise’s [439] Dig. tit. 32, ch. 5, § 3 to 13.) Some of the cases referred to shew, that if the instrument contains words which import a present grant, they constitute a lease, although there is a stipulation for a further conveyance in future. It has been supposed that all the English cases on this subject have not been uniform. (5 T. R. 163, Law, arguendo, where the cases are referred to, and see Cruise, ubi supra.) But the rule now settled there, as well as here, is, that whether the instrument shall be considerd a lease, or only an agreement for one, depends on the intention of the parties as collected from the whole instrument. The law will rather do violence to the words thanbreak through the intent of the parties by construing it a lease when the intent was manifestly otherwise. (Cruise, ubi supra, § 9.)
Among the cases which I have examined, that which most resembles this is Doe v. Ashburner, (5 T. R. 163.) Jackson, the lessor of the plaintiff, had entered into an agreement with Scarisbrick, who became bankrupt, and the defendant was one of his assignees. It was agreed, as to the fulling mills, &c. of the lessor, that the said mills and conveniences, &c. he (the lessee) shall enjoy, and I (the lessor,) engage to give him a lease in, for the term of 31 years, &c. The lessor then agrees to purchase one yard in breadth to be added to the race ; a building was to be moved, and other covenants on both sides were contained in the agreement. The court were of opinion that the words he shall enjoy, if unrestrained, would be a perfect lease, but that they were qualified by the words, and I engage to give him, a lease. Lord Kenyon says, “ But as the parties agreed, the one to give and the other to receive a future lease, I cannot conceive that this was intended to be a present lease.” He lays stress upon the agreement to purchase an additional piece of ground, without which he infers the lease was not to be granted, and that a further lease was contemplated by the parties. Ashurst, J. concurred, and among other things added, that where the words do not necessarily imply a present demise, and where possession is not given, and there is no other act to manifest such intention, then it is merely an executory contract. He adds, “ Besides, the rent is agreed upon at [440] all events ; and if this were construed to he a lease, the landlord would have a right to distrain for the whole rent, although the addition were not afterwards made by purchase, ancl the only remedy left to the tenant would be by an action at laxv or bill in equity.” Grose, J. concurs that the question was one of intention, and says, “ Now, considering the place as it existed at the time of the agreement, and as it was to exist afterwards, the dates and the quantum of rent, I do not think that it was intended to give a present interest.
The cases in this court assume the same principle. In Hallett v. Wylie, (3 Johns. R. 47,) Van Ness, J. says, whether the contract should be considered a lease or only an agreement for one, must depend upon the intention of the parties to be collected from the whole of the instrument. In that case the plaintiff had agreed to let and the defendant to take a house at a certain rent, and the defendant took possession and held it till the house xvas burnt. There was nothing to shew that the parties contemplated any further assurance; and the words implying a present demise, the court held it an executed contract. The case of Thornton v. Payne, (5 Johns. R. 74,) was an action of covenant for not giving possession of a farm according to contract. The defendant bargained, covenanted and agreed with the plaintiff that he would let and hire to him a certain farm, &c. specifying the terms, rent, conditions, &c. The court held that this was a lease, and not an agreement for one. Spencer, J. says that the [intention of the parties must govern and be sought for from the whole instrument. In the case of Jackson, ex dem. Livingston, v. Kisselbrack, (10 Johns. 336,) the lessor had given the defendant an instrument or memorandum, in which he used the terms hath let and to farm let; the defendant took possession under it, and occupied several years before suit brought. It was agreed in the memorandum that the premises should be surveyed, and then the defendant should take a lease. Spencer, J., in giving the opinion of the court, reviews many of the English cases, in which there were words of present demise, and a covenant for further lease, superadded, and the court considered the instrument as a lease, and he comes to this conclusion: [441] “ that there is no case of a present-demise by apt words,/oZ-lowed by a possession, in which the instrument has not been held to pass an immediate interest.” There are some cases, however, where possession did not follow, in which the instrument was considered an agreement for a lease merely, notwithstanding words of present demise, as I have already shewn. From all the cases, there is nothing to impugn the proposition that the intention of the parties must control, and that intention must be collected from the whole instrument.
What was the intention of the parties on the 16th February, 1825, the date of the instrument % Was it intended by that instrument to pass a present interest 'l Did the lessor of the plaintiff intend to be responsible at all events upon his covenant to pay the rent 1 If such was his intention, why agree to receive a new lease after the repairs were made 1 There can be no question but what the instrument between the parties contains words of present demise, but it is also a perfect lease to take effect in futuro upon a subject which was to be created. The instrument commences by reciting that it had been agreed that the premises should be improved by the present defendant, and let to the lessor of the plaintiff upon a certain rent, “ which lease the said U. B. hath on his part agreed to take from the said J. D. when the said premises shall be so altered and improved.” The instrument specifies all the improvements, and then follows a regular formal lease to hold from the time when the improvements shall be completed till the 1st May, 1832, with a covenant for the payment of the rent quarterly, and clauses of distress and re-entry. The improvements contemplated by the written contract between the parties, and upon the completion of which the term was to commence, have never been made. The habendum clause is as follows: “ To have and to hold the said above mentioned and described store, cellar and privileges, with the appurtenances, unto the said U. B. his executors, administrators and assigns, from the day that the said store and cellar shall be altered and improved in the manner above mentioned.” That day has not arrived; the store and cellar have not been improved in the manner agreed upon. A new building [442] has been erected, and the store as contemplated cannot be £0lmq jn present building without tearing down two partitians and a stair case, and building a new partition. It is said that the lessor is at liberty to waive the exact compliance with the contract, and if he is willing to take the premises as they are, the defendant cannot object; but that argument seems to me to conclude nothing on the question whether the instrument is a lease or only an agreement for a lease. If it was a lease, and so understood by the parties, it was obligatory upon both parties, and, of course, the lessor was bound to pay rent from the time when the premises should be altered in the manner proposed. Suppose the defendant had put an ice house on the ground upon which the store was to be erected, or, suppose the house had fallen down and been permitted to remain a heap of ruins, could the lessor be compelled to pay rent ? If an action should, under such circumstances, be brought upon the covenant to pay rent, would it not be a perfect answer to say, the term was not to commence until the premises were altered and improved in the manner mentioned in the instrument, by virtue of which rent is claimed, and, as the premises have never been so improved, no rent has accrued ? This view of the subject is conclusive to my mind to shew that the instrument was not considered by the parties or intended by them as a lease, but an agreement for a lease, settling the terms upon which the premises, when altered, should be held. There was something to be done before the lease was to be executed: the store was to be altered and improved in a manner materially variant from the building which has been erected. The contract has not been fulfilled on the part of the defendant, and it seems to me, therefore, that whatever liability rests upon the defendant for a breach of his covenant, the remedy of the lessor of the plaintiffs is not in this form of action.
Judgment affirmed.