Covenants on a sale of leaseholds.

Testatum.

vendor, does not begin to run until some actual breach
of the covenant in question.

It was mentioned previously that there are addi-
tional covenants to be inserted on a sale of leaseholds.
These are, covenants by the vendor that the lease
which he assigns is valid and subsisting, and that the
rents and covenants of the lease have been, respec-
tively, paid and observed, so far as he is concerned,
up to the date of the conveyance. There is, also, a
covenant by the purchaser that he will, from thence-
forth, pay that rent and observe those covenants, and
indemnify the vendor against any further liability in
this respect. The covenant by the vendor that the
lease is valid is implied by the covenants for title, and
may, therefore, be safely omitted. The covenant by
the purchaser that he will indemnify the vendor
against any further liability in respect of the rent
and covenants of the lease is one which he cannot
refuse to give. On this point it may be remarked
that when a vendor is himself an assignee of a lease,
a purchaser from him is liable to indemnify the orig-
inal lessee against breaches of covenant in the lease,
committed during his own tenancy, without reference
to the covenants which such a purchaser may have
entered into with his yendor.2

Having thus gone through the essential parts of a
purchase deed, it only remains to mention that the
whole is concluded by a Testatum, which sets forth
that the several parties to the deed have duly affixed
thereto their respective hands and seals; and to point
out that the fact of their having done so should be
attested by at least one witness, whose attestation is
usually to be found indorsed on the deed along with
the receipt clause.

1 Staines v. Morris, 1 Ves. & B. 9.
2 Moule v. Garrett, L. R. 7 Ex. 101.

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CHAPTER IV.

OF LEASES.

HAVING thus considered the instruments which relate to the sale of land, we come next to those which are employed when it is to be let. These, as we know, are called leases, and will form the subject of discussion in this chapter. The simplest form perhaps of a lease is that of a dwelling-house and grounds for a short term of years which is to commence on, or very shortly after, the execution of the instrument of demise. And since our object is to deal only with the more ordinary and simple forms of conveyancing, we will confine our remarks to leases of this description. And, in so doing, we will follow the plan adopted in the case of purchase deeds, and divide our present subject into, first, Agreements for Leases, and second, Leases.

Agreements for leases, again, may be classified under Agreements. two headings; namely, those instruments which have for Leases. been expressly entered into by the parties as agreements for leases, and those instruments which operate as agreements by construction of law, although not expressly entered into as such. Before, however, considering agreements for leases with reference to this classification, we have to say a few words on the statutory requisites relating to all such agreements generally.

Statute of
Frauds.

ance.

Prior to the passing of the Statute of Frauds,' any lease, and also any agreement for a lease, of land, might be made by parol. But by this statute it is enacted that no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.

It follows, therefore, that no person is liable on a mere contract to grant or take a lease, unless he has signed some written document which, either in itself or in conjunction with other writings, contains the Part Perform- substantial parts of the contract. But if something more has been done than simply entering into a nonbinding agreement, the contract may come within the class of cases which are considered as taken out of the Statute of Frauds by part performance. Thus, it has been held that possession taken by a lessee, and payment of rent by him, when these acts are distinctly referable to a parol or unsigned agreement, were sufficient to induce a court of equity to decree specific performance of the agreement, against either the lessor or the lessee. And this rule extends also to the representatives of a lessor or of a lessee. Thus, where there had been a verbal agreement for a lease,

4 Kine v. Balfe, 2 Ba. & B. 343. [But nothing is considered as part performance within the rule unless it places the party suing for specific performance in a situation by which the failure to perform was to operate as a fraud upon him. Clinan v. Cooke, 1 Sch. & L. 40; Eaton v. Whitaker, 18 Conn. 222. If, for instance, a vendee, upon a parol agreement for the purchase of land, should in faith thereon proceed to build a house on the land, he could insist upon a specific performance of the agreement. Foxcroft v. Lester, 2 Ver. 456.]

and the lessee had entered into possession of the property, paid rent, and made improvements on the property, and afterwards died: it was held that his representatives were entitled to have, from the representative of the lessor, a formal lease, in terms corresponding to those of a draft lease found amongst the papers of the lessor, who was also dead.1

for leases.

desirable.

We now come to agreements for leases, expressly Express entered into as such. We shall not, however, dwell agreements long on this point, since, as a rule, preliminary agree- Not in general ments are neither usual, nor desirable, in the case of those ordinary leases with which alone we are concerned. Where the lease is to take effect at once, and is not to contain any but the ordinary covenants, there can be no object in having a formal preliminary agreement (which can only be safely prepared by inserting in it all the covenants and clauses literally as they are to stand in the lease 2), this agreement being immediately followed by a formal lease. Still less is it desirable to have, as is sometimes done, a formal agreement not followed by a lease. For in this case, besides the risk of raising questions, where the term is less than three years, as to whether the instrument is an agreement or an actual lease (a point to which we shall advert presently), both parties are, under an agreement, in a much less favorable position than under a lease. For the lessee, having no legal interest, is prima facie liable to ejectment at the will of the lessor, and can only remedy this injury by establishing an equitable defence; whilst the lessor, until some rent has been paid, cannot distrain for unpaid rent, but is driven to bring an action for use and occupation of the premises.3

1 McFarlane v. Dickson, 13 Grant, 263.

2 See 5 Dav. Con. 46 n.

3 5 Dav. Con. 17.

Stipulations which should be inserted when

agreements

We will, therefore, with regard to formal agreements for leases, only call attention to two stipulations, both of which should, at present, be inserted are prepared. when these instruments are prepared by the conveyancer, but which would be out of place in the lease itself: premising, that the fact of their being necessary, if there is an agreement, does not conflict with the statement that an agreement is not usually desirable. The first of these stipulations is, that the lessee is not to require proof of, or investigate, his lessor's title. It is now settled, notwithstanding former doubts to the contrary,2 that a lessor is bound, in the absence of any stipulation to the contrary, to make out his title to the property which he purports to demise; and although a court of equity will not compel one party specifically to perform his contract to grant a lease, unless the right to see his title is waived, neither will it compel the other to carry out his contract to take a lease, unless the title is produced. The necessity for one part of this stipulation will, however, shortly come to an end. For the Vendor and Purchaser Act 18744 enacts 5 that in the completion of any contract entered into after the 31st of December, 1874, and subject to any stipulation to the contrary contained in the contract, an intended lessee shall not be entitled to call for the title to the freehold. But the remarks made in a former chapter as to the necessity of precluding a purchaser from investigating, as well as from inquiring for, his vendor's title, will still apply equally to the case of lessor and lessee, and a stipulation to that effect will, therefore, continue to be necessary. The agreement should also, whatever may be the length of the term to be

1 Stranks v. St. John, L. R. 2 C. P. 376.

2 Fildes v. Hooker, 2 Mer. 424, 427.

8 Fildes v. Hooker, 2 Mer. 424; 1 Platt on Leases, 618.

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