Per Curiam,

Rule refused.

THESE two cases, although loudly impugned by Mr. Watkins, in his able little treatise on conveyancing, have never since been invalidated by judicial decision. Nor does either of them seem inconsistent with the Statute of Frauds. That statute enacts in sec. 1, "That all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of, any messuages, manors, lands, tenements, or heredita ments, made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making and creating the same, or their agents thereunto lawfully authorised by writing, shall have the force and effect of leases or estates at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect, any consideration for making such parol leases to the contrary notwithstanding."

Sec. 2. "Except, nevertheless, all leases not exceeding the term of three years from the making thereof, whereupon the rent re

served to the landlord during such term shall amount to two-third parts at least of the value of the thing demised."

Now it is clear, that the words of these sections are satisfied by holding, that a parol demise for more than three years, creates, in the first instance, an estate at will, strictly so called, which estate at will, when once created, may, like any other estate at will, be changed into a tenancy from year to year, by payment of rent, or other circumstances indicative of an intention to create such yearly tenancy; and this perhaps is all which was decided by the two cases in the text, for, in Doe v. Bell, we are expressly told, that the defendant had paid rent; and though, in Clayton v. Blakey, there is no express mention of rent having been paid, yet, as the tenant had been in possession for three years, and that, under a rent, (for the action was for double rent,) it is more than probable that some payment of rent had taken place during that period. Indeed, to deny to such a payment the effect of creating

a tenancy from year to year, in cases where the letting was by parol for more than three years, would be to contravene, rather than obey, the enactment of the Statute of Frauds, since that act evidently means that such a parol lease shall enure in every respect as a lease at will. Now one of the incidents of a lease at will is its convertibility, by payment of rent, into a tenancy from year to year. See Doe v. Weller, 7 T. R. 478; Roe v. Rees, 2 Bl. 1171; and see 7 Bingh. 458, ubi, per Tindal, C. J., "If a party enters and pays, or promises to pay, a rent certain, or settles it in account, (see Cox v. Bent, 5 Bingh. 185,) a new agreement may be presumed, under which the landlord may have a right to distrain." But the decisions (it is believed) have not gone so far as to establish, that a parol lease for more than three years at a fixed rent will, without any other circumstance, create an interest from year to year, so as to give the tenant a right to enter indefeasible except by six months' notice ending with the expiration of the year. Such a construction would, perhaps, be incompatible with the strict letter of the Statute of Frauds; nor (it is believed) has it ever been held, that a parol demise for more than three years, at a fixed rent, even when coupled with the lessee's entry under it, will, before payment or acknowledgment in account of any part of the rent reserved, have the effect of

rendering him tenant from year to year. Indeed the contrary appears involved in the late case of Doidgev. Bowers, 2 Mee & Welsb. 365, where three persons entered under a lease for seven years, not signed by the lessor, and, therefore, inoperative *under the Statute of Frauds: payments of rent were made; but not being shown to have been with the assent of one of the three, it was held, that, as against her, there was no evidence of a tenancy from year to year, she not having resided a year on the premises; Parke, B., saying, "Under the original contract no demise could be created, but a mere tenancy at will. Then, in order to constitute a new tenancy, it must be shown, that all the three parties agreed to vary it by a new contract for a tenancy from year to year." See Denn v. Fearnside, 1 Wils. 176; Goodtitle v. Herbert, 4 T. R. 680.

Tenancies from year to year seem to have owed their origin to the prevalence of a strong and very natural feeling of the justice and good policy of allowing a tenant who has sowed to reap. This feeling manifested itself during the earliest ages of our law in the doctrine of emblements, which entitled a tenant at will to the crops he had sowed, and gave him free ingress and egress to reap and carry them, after the determination of his tenancy by the landlord. (See Litt. sec. 68, and the Commentary.) Now the land could have been but of very little value to the landlord

while covered with crops belonging to his late tenant and subject to such a right of entry; and to give those crops and that right of entry to a tenant at will was in effect to say that his enjoyment of the land should not be put an end to by the determination of the landlord's will respecting his estate in it. But people were apt to confound the distinction between the right to the enjoyment and the right to the estate; and seeing that the landlord could not arbitrarily put an end to the former, they concluded that he was similarly restrained as to the latter.

"So long ago," says Lord Kenyon, in Doe d. Martin v. Watts, 7 T. R. 85.," as the time of the year-books, it was held that a general occupation was an occupation from year to year, and that the tenant could not be turned out of possession without a reasonable notice to quit." The passage in the year-books referred to by his lordship is 13 Hen. 8, 15 b, ubi, per Wilby, "Si le lessor ne done a luy garnir devant le demy an il justifiera in auter an et issint de an in an." And it was better for the lessor himself to establish this custom, since a late tenant at will entitled to emblements would have had the whole profits of the land, from the determination of the will till the harvesting of the crops, without paying any rent for it; whereas the tenant from year to year pays rent until the day on which he quits the premises. It is now well settled,

VOL. II.

that the reasonable notice to quit to which the tenant is entitled, is half-a-year's notice, ending with the period at which his tenancy commenced. Doe v. Porter, 3

T. R. 13.

There is no doubt, however, that a tenancy at will, strictly speaking, may still be created; Ball v. Cullimore, 5 Tyrwh. 753. It may be so by express words, Richardson v. Langridge, 4 Taunt. 128; Cudlip v. Rundle, 4 Mod. 9; R. v. Fillongley, Cald. 569. A person who holds rent free by the permission of the owner is a tenant at will. R. v. Collett, Russ. & Ry. C. C. 498; ex.gr., a minister placed in possession by trustees for the congregation. Doe v. Jones, 10 B. & C. 718; vide tamen Wilkinson v. Malin, 2 Tyrwh. 544. So a person entering under an agreement to purchase, or for a lease, and who has not paid rent. See Regnart v. Porter, 7 Bingh. 451. Doe v. Miller, 5 C. & P. 595; although he has paid interest, Doe d. Tomes v. Chamberlaine, 5 M. & W. 14. See Howard v. Shaw, 8 M. & W. 119. On payment of rent, however, he becomes tenant from year to year. Mann v. Lovejoy, R. & M. 355. See Saunders v. Musgrove, 6 B. & C. 524; Chapman v. Towner, 6 M. & W. 100. It has already been shown in the notes to Keech v. Hall, that there are certain cases in which a mortgagor in possession becomes tenant at will to the mortgagee.

H

On account of the peculiar origin of a tenancy from year to year, and its being still in contemplation of law a tenancy at will, it seems to have been thought by three judges in Doe v. Wells, 10 A. & E. 427, that it would be possible to put an end to it by the parol

consent of both parties, such parol consent not operating as a disclaimer, which cannot be by mere words, nor as a surrender, which would be opposed to the Statute of Frauds, but as a determination of the will of both parties.