A deed that the person shall "hold and enjoy the premises from seven years to seven years, for and during the term of forty-nine years," with a proviso "that it shall be void on payment of so much money," though intended only as a collateral security, amounts to a present lease (a).

One made his will in this manner: "I have made a lease to J. S. for term of twenty-one years, paying but 20s. rent;" this was held a good lease, or demise by will, for twenty-one years; and that the word "have" should be taken in the present tense, as dedi is in a deed of feoffment, to comply with the intent of the testator (b).

Articles by which "it is covenanted and agreed that A. doth let the said lands," &c. amount to an immediate lease (c), and a proviso that the lessee "shall pay to the said A. annually," &c. is a good reservation of rent, and not a condition: one of the judges, however, held it to be a reservation and a condition also; as in another case, where a proviso joined with words of covenant made it a condition and a covenant also.

So, an agreement to grant a lease, whereby the lessor did let and set for twenty-one years from a future day, shall be a lease in præsenti, if the circumstances shew the party's intent so to be (d).

But although no specific words are necessary to create a lease, yet there must be words used which shew an intention to demise.

Therefore where a lessee of tithes agreed with the owner of lands, for certain collateral considerations, not to take tithes in kind from the tenants of their lands for twelve years, but to accept a reasonable composition not exceeding 3s. 6d. per acre; this was adjudged to be no lease (e); for 1st, the rent affected to be reserved is uncertain; under this agreement it is at the option of the party either to pay tithes in kind, or to tender the reasonable value of the tithes, which may be under 3s. 6d. per acre; 2dly, the owner of the lands, the person with whom the agreement is made, is neither to enjoy any thing nor pay any rent; it cannot therefore be a demise to him. It can, at the utmost, amount to no more than a mere covenant with A. that B. shall enjoy, and creates no lease to either.

So, where one made a lease for life, & provisum est, that if the lessee die within sixty years, then his executors and assigns should enjoy the land in his right for so many years as should be behind of the sixty years from the date of the lease; this was held to be

(a) Evans v. Thomas. Cro. Jac. 172. (b) Bac. on Leases, 163.

(c) Harrington v. Wise. Cro. Eliz. 486. S. C. Noy. 57.-Drake v. Munday. Cro.

Car. 207.

(d) Baxter d. Abrahall v. Brown. 2 BI, Rep. 973.

(e) Brewer v. Hill, Anst, 413,

only a covenant and no lease (a); for which divers reasons are assigned in the books; the best however seems to be, that he having in the first part of the deed made a lease in express and proper words, must be supposed to mean something less in the last part of the deed, which varies so widely in the form of expression, and which has a natural and proper meaning of its own as a covenant, but cannot amount or come up to a lease, without violence and force done to the words, as well as the intent of the parties. This seems the more probable, because it is held clearly, that if it had been provided that if the lessor die within sixty years, that then he demised the land to another (who was also a party to the deed) for so many of the sixty years as should be then to come, this would be a good lease; for here he comes into the very same form of expression made use of in the first part of the deed, which was an actual demise, and therefore must be supposed to mean the same thing in the latter part too, and consequently such words would make it an actual demise.

In one case it is said, that though a grant "to have and to hold" land for years be a good lease, yet a grant to "enjoy" lands in the same manner is but a covenant (b); [but unless it be with reference to a stranger, it is conceived that this opinion is erroneous, if the case itself be rightly reported.]

For, a covenant "that a stranger shall enjoy such land for so many years at such a rent," does not amount to a lease, but a covenant (c).

It is said also, that a covenant "that he shall permit the covenantee himself to hold the land for so many years," does not amount to a lease; for it sounds only in covenant (c): [but this seems doubtful at this day, not merely because a licence to inhabit amounts to a lease, but because the intention of the parties clearly is that the one grants and the other accepts a lease.]

An article "that he is content A. shall have a lease for six years, that the rent shall be 10." does not amount to a lease; for it appears to be only instructions for a lease (c).

So, "I agree to let my land," this is no lease (d).

So, an agreement or covenant made between A. and B. that C. shall have such land for years; this being made between strangers, cannot amount to a lease (e).

So, if A. covenants with B. that his executors shall have such land for twenty-one years, this cannot amount to a lease (e).

Formerly, whenever an instrument contained words of present (a) Bac. Abr. tit. Leases, K.

(b) Evans v. Thomas. Cro. Jac. 172. (c) Com. Dig. tit. Estates.

(d) Sweeper v. Randal. Cro. Eliz. 156, (e) Porry v. Allen, Ibid. 173,

demise, it was held to amount to an absolute lease, although covenants were added prospective of some further act to be done; such covenants being construed to be merely in further assurance. Thus these words in an instrument, be it remembered that A. B. hath let and by these presents doth demise," &c. were held to operate as a present demise; although the instrument contained a further covenant for a future lease (a).

So also where before the statute of frauds a party said, "you shall have a lease of my lands in D. for twenty-one years, paying therefore 10s. per annum, make a lease in writing and I will seal it:" this was held a good lease by parol, and the making of it in writing was but a further assurance (b).

So also and for a similiar reason the words "doth let" in articles of agreement have been held a present demise, although there was a further covenant "that a lease should be made and sealed, according to the effect of the articles, before a certain day (c).”

But a different principle now prevails. The intention of the parties is alone considered; and, to use the words of Lord Chief Baron Gilbert, "if the most proper form of words of leasing are made use of, yet if upon the whole there appears no such intent, but that the instrument is only preparatory and relative to a future lease to be made, the law will rather do violence to the words, than break through the intent of the parties, by construing a present lease when the intent was manifestly otherwise (d).

Thus, an instrument, setting forth the conditions of letting a farm, the term to be from year to year, and the lands to be entered upon at a period fixed, &c. and that a lease was to be made upon these conditions with all usual covenants, at the foot of which instrument the intended lessee wrote, "I agree to take the premises at the rent of, &c. subject to the covenants," was held to be an agreement for a lease, and not a present demise; there being not only a stipulation for a future lease, but time being given to prepare it, before the commencement of the term, and no present occupation as tenant contracted for (e).

So, where articles were drawn up as follows: "A. doth demise his close to S. to have it for forty years," and a rent was reserved, with a clause of distress; upon which articles a memorandum was also written," that the articles were to be ordered by counsel of both parties, according to the due form of law;" it was ruled that the articles were not a sufficient lease (ƒ).

(a) Barry v. Nugent, cited in Doe d. Jackson v. Ashburner. 5 T. R. 163-5. (b) Maldon's Case. Cro. Eliz. 33. (c) Harrington v. Wise. Cro. Eliz. 486. S. C. Noy. 57.

(d) Bac. Abr. tit. Leases, 164. Doe d. Abrahall v. Brown. 2 Blk. Rep. 973. (e) Tempest v. Rawlings. 13 East. 18. (f) Sturgion v. Painter. Noy. 128.

So, where the words were " A. doth agree to let, and B. agrees to take," for a certain term at a certain rent, all his estates, the said B. to enter upon the premises immediately, and it was further agreed that leases with the usual covenants should be made and executed by a certain date; the stipulation that leases should be so drawn, was held to shew plainly that it was not the intention of the parties that such agreement, although containing words of present demise, should operate as a lease, but only to give the defendant a right to the immediate possession till a lease could be drawn (a).

So also where, upon an agreement stamp, A. agreed to demise and let certain copyhold premises for a certain term at a certain rent, and further undertook to procure a licence to let such premises, the Court held, that the instrument was an executory agreement only, for two reasons; first, because if it were held to be a lease, a forfeiture would be incurred, which would be contrary to the intent of the parties, who had cautiously guarded against it, by the insertion of a covenant that a licence to lease should be procured from the lord; and, secondly, because the stamp was conformable to the nature of an agreement for a lease, and not adapted to an absolute lease (b).

So also where the words were "that the said mills he shall hold and enjoy, and I engage to give a lease in, for a certain term," &c. it was ruled that the words "shall hold and enjoy" would have operated as words of present demise, if they had not been controuled by those which followed (c).

So also where the words were "agreed this day to let my house to B." for a certain term, "a clause to be added in the lease to give my son a power," &c. it was considered to be manifest from the latter words, that a future instrument of demise was contemplated (d).

So also where, in an instrument which contained words of present demise, there was no direct reference to any future lease, but it appeared upon taking the whole instrument together, that a future lease was intended, the same rule of construction prevailed. In this case the agreement was, "A. agrees to let to B. all his farm, &c. (except three pieces of land) to hold for twenty-one years, determinable at the end of the first fourteen, at the yearly rent of 261. payable, &c. and at and under all other usual and customary covenants and agreements, as between landlord and tenant where the premises are situate: A. to allow a proportionate part of the rent, for the three pieces of land above excepted;" and the Court held that it only amounted to (a) Goodtitled. Estwick v. Way. 1 T. R. 735.

(6) Doe d. Coore v. Clare. 2 T. R. 739.

(c) Doe d. Jackson v. Ashburner. 5 T. R. 163.

(d) Doe d. Bromfield v. Smith. 6 East, 530.

an agreement for a lease for the following reasons: because, "at the yearly rent," &c. and "at and under all usual covenants," &c. is not the language in which a lawyer would introduce into a lease the technical covenant for further assurance, but contemplates the entire making of an original lease, and because no landlord or tenant of common sense would enter on a term for twenty-one years, without ascertaining what were the terms on the one side and the other, by which they were to be bound for that period, and what was to be the rent apportioned for the excepted premises (a).

But where an instrument upon an agreement stamp was as follows: "A. agrees to let, and B. agrees to take, all that land, &c. for the term of sixty-one years from Lady-day next, at the yearly rent of 120l. and for and in consideration of a lease to be granted by the said A. for the said term of years, the said B. agrees to expend 2000l. in building within four years five houses of a third class of building; and the said A. agrees to grant a lease or leases of the said land, as soon as the said houses are covered in, and the said B. agrees to take such lease or leases, and execute a counterpart or counterparts thereof: this agreement to be considered binding till one fully prepared can be produced," the Court held the same to be a lease, considering it to be the intention of the parties, that the tenant, who was to expend so much capital upon the premises within the four first years of the term, should have a present legal interest in the term, which was to be binding upon both parties; although when a certain progress was made in the buildings, a more formal lease or leases, in which perhaps the premises might be more particularly described for the convenience of under-letting or assigning, might be executed (b).

So where the instrument was "A. agrees to let, and also upon demand to execute to B. a lease of certain lands, and B. agrees to take and upon demand to execute, a counterpart of a lease of the said lands for a certain term at a certain rent; the lease to contain the usual covenants, and the agreement to bind until the said lease be made and executed," &c. it was held to be a present demise; and that the agreement for a future lease, with further covenants, was for the better security of the parties (c).

A Lease, how made.-A lease may be made either, 1. by deed; 2. by writing without deed; or 3. by parol demise.

A deed is a writing sealed and delivered by the parties. Deeds are either deeds poll or deeds indented. The former are commonly used where the granting party only seals, and there is no need of the other party sealing a counterpart, the nature of the transaction

(a) Morgan d. Downing v. Bissell. 3 Taunt. 65.

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(b) Poole v. Bentley. 12 East. 168.
(c) Doe d. Walker v. Groves, 15 East.244,