Holley v. Young

Appleton, C. J.

This is an action of forcible entry and detain-er. The tenants claim possession by virtue of a lease from the complainants under seal. The rights of the parties depend upon the construction to be given to its terms.

*522 The lease is dated Dee. 10,1873. It leases and lets to the tenant certain premises therein described at a specified rent for one year. Then follow these words : “We further agree to lease to said Toung said premises, situated in Farmington village at the price and conditions named as long as he wishes to occupy the same. The said Toung agreeing to take good care of the premises and not to suffer them to go to waste more than the natural use of the same.”

The lease in question clearly describes the premises leased and the rent to be paid. The tenant after the expiration of the year remained. His so remaining is an election to continue the tenancy. “The question whether a written instrument is a lease, or only an agreement for a lease, depends,” observes Ames, J. in Kabley v. Worcester Gas Light Co., 102 Mass. 392 , “on the intention of the parties to be collected from the whole instrument. Bacon v. Bowdoin, 22 Pick. 401 . The form of expression we agree to rent or lease’ is far from being decisive upon this question, and does not necessarily import that a lease is to be given at a future day. On the contrary, those words may take effect as a present demise, and the words ‘agree to let’ have been held to mean exactly the same thing as the word ‘let’ unless there be something in the instrument to show that a present demise could not have been in the contemplation of the parties.” Doe v. Benjamin, 9 Ad. & El. 644. In Doe v. Ries, 8 Bing. 178, Tindal, C. J., says, “agrees to let and agrees to take, have been held words of present demise from the case of Goodtitle d. Estwicke v. Way, 1 T. R. 735, to the present time.” In Kramer v. Cook, 7 Gray, 550 , the contract was “to hold for the term of three years from the date hereof . . . and, at the election of the said Cook, for the further term of two years next after said term of three years, yielding and paying,” &c. “The provision in the lease,” remarks Thomas, J. “is not a mere covenant of the plaintiff for renewal; no formal renewal was contemplated by the parties. The agreement itself is, as to the additional term, a lease de futuro, requiring only the lapse of the preceding term and the election of the defendant to become a lease in presentí. All that is necessary to its validity is the fact of election.” In Weed *523 v. Crocker, 13 Gray, 219 , the lease was of a mill on certain terms and conditions for the space of ten years, and it was farther added therein that “at the termination of the lease said Crocker is to have the right of renewing said lease for five years, giving to said Weed or his assigns three months previous notice.” This was held not an agreement for a lease, but a lease. These views are clearly and fully affirmed in Sweetser v. Mc Kenney, 65 Maine, 225.

The tenant was to go into possession of the premises under the lease for a year, and he did. Being in possession under the lease, it could not have been the expectation of the complainants that he should quit possession and take a new lease and then enter under such lease. The parties must have intended that the occupation of the tenant should continue as long as he should wish to occupy the premises leased.

The plaintiff offered to show by circumstances attending the giving of the lease, that it was fraudulently obtained. This evidence was erroneously excluded by the justice presiding.

Exceptions sustained.

DioiceesoN, Baeeows, Danforts, Virgin and Libbey, JJ., concurred.