#### Abeel & Abeel *against*W. Radcliff.

An action of assumpsit for the ”0® onandC,Uwm iee?yiho the expiratioa of the time. And such ac-a'tcnant, Stag nantr contained for a renewal.

a covenant a lease, on .the orethe*term5to out'menüonta» ”irehpitCwa/°5 covenant3 for a oríSraperpetií at eu to a single renewal for the term for which lejjuet'Tt! fsivTM¿ “ttee/e£0°f aítogS^vo/il

be statute of frauds SUSRse]r,Corp“ m^ties£bybaere? ferencetosomeelse, whereby the ‘"TM¡ ““b® ?ts¿ "“0“" oiier-6' STcanieuTto effect'

ÍTIIS was an action of assumpsit brought to recover the rent of certain premises, situate in the village of *Catslcill*and county of *Greene.*The declaration contained two counts, one for the use and occupation of the premises in question, the other a *quantum meruit*thereon. The plea was the general issue. «

On the 1st of *April,*1793, the plaintiffs being the owners of the premises above mentioned, by an indenture of that date, made between them and one *David Van Bergen,*demised the ° A mises to *Van Bergen*for the term of ten years, then next 0 *J t*ensuing, at an annual rent of four pounds ten shillings. The following covenant was contained in the indenture: “Provided, nevertheless, that the parties do hereby agree, that, at the expiration of the above term, the parties of the first part shall, if convenient, take and pay for the buildings on said lot at the appraisal of three indifferent men to be chosen by the said parties, or *let the said lot*for a yearly rent, to be fixed by three indifferent men, in like manner to be chosen by the said parties, ii iii *• t*Í It is, nevertheless, to be observed, that the said party of the second part shall not put on said lot any more buildings than a house and barn, which buildings only are to be appraised and paid for.” The lessee took possession under this indenture, and the premises, after sundry mesne assignments, came into the possession of the defendant. The rent claimed by the plaintiffs was what had accrued since the assignment of the lease on the 10th of *June,*1808. On the expiration of the term, the plaintiffs refused to have the buildings appraised, but offered a re- ^ *,*newal of the lease for some short period of time; but the de4 fendant insisted that he was entitled to a perpetual lease of the premises, and the plaintiffs offered to give a lease for a term not exceeding ten years, which the defendant refused. The parties thus differing as to their rights and liabilities, no rent was paid by the defendant. It was agreed by the parties that the rent of the premises for ten years,’ from the 1st of *April,*1803, when the lease expired, ought to be estimated at twenty-five dollars per annum, and the rent on a perpetual lease at fifty dollars .per annum. And, for the purpose of deciding all the rights and *298liabilities óf the parties on the'facts above Seated, certain s%«¡> latfons as to the mode of enforcing, the decision of the* court were subjoined to the Case, which it is unnecessary to state... ■

*E Williams,*ior the defendant,

contended, 1. That the-defendant, and those under whom he claims, having entered and held the premises by virtue of a lease *under seal,*and the plaintiffs’having'refosed to’give a new lease according to the covenant, that is, a permanent lease', the present action, for use andl occupation, could.not be maintained; but the plaintiffs’ remedy Was on the contract, - . . ’ ■.‘ .

2. That the plaintiffs, by theircovenant of renewal,, were bound 10 give a permanent lease, or one for the longest termjknown of recognised-.in;the law./ Such.a lease is’the only,one that can, reciprocity, and give effect to the contract. T©. show that this was the true construction of the covenant, he cited the folio wing authorities, as establishing principles analogous: 3 *Atk.*33. 475. 2 *P. Wms.*196. *1 Bro. P. C.*522. 2 *Bro. Ch. Cas.*636. 639. 3 *Bro. Ch. Cas.*63. 4 *Bro. Ch. Cas.*415. 2 *Vesey,*498. 3 *Vesey,*jun. 295. 298. 378. 6 *Vesey,*jun. 232. *Cowp.*819.

*Caniine,*contra,

contended, that, the original lease having expired, to support this action it was enough to show that’ the relation pf landlord and tenant existed.' . The plaintiff could not sue- on a lease which had 'expired, for rent- accruing subsequent to its expiration. Here was an undertenant-, against .whom the plaintiff has. a right, to this’ action’for -the use ánd occupation.*

It. is said here is a covenant, or agreement under seal; but this- is merely an agreement to give á lease, not an- actual lease, and as no lease has -been made out, or;delivered pursuant to the agreement, the plaintiffs are entitled'to this form of action.†

As lo the'main-'point, what lease the plaintiff was-bound to. give,-that must depend on the construction of the covenant. If the-, in£e ntionuf the parties is to be regarded, it is very evident, from the whole lease, that'they never contemplated a renewal for a longer time than a year, or -until tíre- buiídingá-Couid be a-p-praised and - paid for.

*

*8 Term Rep. 327.*

†

*Elliot v. Rogers, 4 Esp. N. P. Cases, 59.*

Van Mess, Ji,

delivered the opinion of the court. The first question is, whether the plaintiffs' can recover if ,this form of *299action. I think they can. The demise for the first ten years had expired before the defendant became the assignee; and the rent,, for the recovery of which this suit is brought, is for the use and occupation of the premises since that period, There can be no doubt that *assumpsit*will lie. against a tenant who holds over; in such Cases the law creates a tenancy from year to year, and the tenant cannot be turned off without a previous notice to quit.. *(Doe, ex*dem. *Rigge,*v. *Bell,*5 *Term Rep.*471.)

The defendant cannot be said to hold íindér. the lease; the soyenant for a new lease never having been executed upon the expiration of the ten' years. After that period the defendant must be considered as.holding under the covenant for a renewal; this case, then, is very analogous to that of *Elliot, executor of Thompson,*v. Rogers, (4 *Esp. Rep.*59,) That was assumpsit for use and occupation; the plaintiff’s testator hud agreed, by deed, to; give the defendant a lease, and it being, objected that the action could not be maintained, Lord *Kenyon*held, that- if there had been a demise by deed, the plaintiff could not maintain assumpsit; but that the agreement was not a lease, but only án agreement for a lease; that the defendant did not hold under the deed, and that the action was, therefore, maintainable. The covenant for a renewal of. the lease, in this case, never having been executed,. no action .could be maintained upon it to recover the rent in 'question. This case is clearly distinguishable from- that of *Smith v. Stewart,*(6 *Johns. Rep.*46.) inasmuch as the defendant there entered under a contract to purchase the fee of the land, though *I*thought the action was maintainable even in that case.

It is. submitted to us, also, to. decide, for what term or estate the plaintiffs, were bound to give a new lease; under the covenant stated in the original lease. The defendant Contends, he is entitled to an estate in fee, rendering such rent as shall be fixed by appraisement. This pretension, is altogether inadmissible. The object of the parties, probably, was to give the lessee a new lease for such a term as would reimburse or indemnify him for his expenses in the erection of a house and* barn, in case thé plaintiffs did not elect to pay for them at the expiration of 'the ten years. It is clear that an estate in fee was not contemplated by either of the parties. The words are, that the plaintiffs-are *li*to *let*the said lot,” &c. The word *let*is. strictly applicable *300to a lease, and not to a deed in fee'; and a léase is for. life- or for.. years, of at will,, and always for a less.time than the interest of ' the lessor ih. th.e .premises.. in,Englandit is.'not unusual- to insert a covenant'in a■ lease,'for a perpetual renewal, upon .‘certain .specified, terms, but none: of' the- eases, upon this, subject (severral of which have, been cited for the ■.defendant) show.-this to be1 ■a covénanV of that description. In all the cases- cited», as-well a§ sómé others, a perpetual' renewal was agreed to. be given, either by express words or necessary implication or construcr tion, neither'of Which exist in the ease before-us'. . Construing the words :pfithis., coyenantypense, .as wé are.b.ouhd tO-.doj 'i' ,-think the plhmtiffs,.at most,- would nop lie 'bound to '-give''any-other- than-a hew léase'for’ theisame-term As: that fof which ‘the original léase .was given,'namely, foi’ tea years. But l am of opinion, that this covenant is to tally .void.for uncertainty.- HoW. far this, uncertainty might "be óbviátéd" by a bill in the .court; of chancery, to which the decision of this, point properly appertains, I donotknow, but proceeding upon the naked Agreement, it is impossible to collect from it for; wlla't term fhfe parties, contemplated the, new- lease should be' given;' it is possible;that it niay be a good agreement for one; year, .but the words, , that the-land is to be' “ let for a yearly rent, to be fixed,” &c., seem tá imply that a longer» term was contemplated,.' - As Í have before remarked, it probably was the intention of the parties to permit -the lessee to occupy the land until he. should be paid for the buildings erected by him; but the agreement is too loose andvagueto justify giving even such an"effect-to,it.. »-E-y.ery -agrée» inent which is r.equiréd!to belin writing,, by the statute of frauds,»' must be certain in itself, pf capable of béing made so by- a fe>, ference tor something else, whereby the. terms can be ascertained with reasonable precision, Or it'cannot be carried into effect» The cases to this point are numerous and, decisive-, as. Will appear by á short reference to, some of them. *In Blagden v. Bradlea, (12*Ves. 466.,), there- was a bill for the specific performance- of an, agreement for -the purchase, of land, and the master' of the; rolls observed, that an auctioneer’s receipt may he a note in writing, or, memorandum, withinthe statute ;; but, then, the -receipt must be certain within itself, or by reference to something else'j so that it may be known what the agreement ivas;' That one material- particular did not appear in the re.*301ceipt, namely, the *price.*The plaintiff must show a-complete written agreement, and the bill was dismissed.

In *Clinan*v. *Cooke,*(1 *Scho. & Lef.*22.,) there was an agreement for a lease in which the *term*for which thé léase was to be made was not mentioned, but the complainant (who filed the bill for a specific performance of the contract) was to'pay- a *yearly rent of two guineal fo'r the'first year,*and *‘21. 8s. for the remainder of the term,*-The Lord Chancellor of *Ireland*held, that the agreement being silent as to the *term*to be demised,- the defendant was-not bound to perform the contract* This case, in its leading features, is very like the present, and appears to> have been settled upon great deliberation. In *Seagood*v. *Méale Sr*Leonard, *(Prec. in Chi.*560.,) a like bill was filed on a written agreement which did not specify the terms, and the bill was dismissed. The same doctrine will be found in a great variety of other cases, as well at law as in equity ; and the rule which I have mentionéd appears to be settled upon the firmest basis. *(Boydell*v. *Drummond,*11 *East.*142. *Clark*v. *Wright,*1 *Atk.*12. *Bailey & Bogert v. Ogden and others, 3 Johns Rep.*399. *Tawney v. Crowther,*3 *Bro. C. C.*318. *Symondson*v. *Tweed, Prec. in Chan.*374. *Gilb. Eq. Cas.*35. *Bromley*v. *Jeffries,*2 *Vern.*415. *Underwood*v. *Hithcox,*1 *Ves,*jun. 279.) In the case before us .the parties have omitted to state the *term*for which the new le,ase was. to be given, and unless thé court makes a contract for them, the defendant is without a remedy, at least upon the case now presented to us. From what has been said, it follows that the plaintiffs are entitled to judgment, for ninety-five dpllars and sixty-five cents., The stipulation in the case is that twenty-five dollars, per year, shall be considered as a fair rent upon a lease for ten years ; I presume, however, it was intended that the same rent should be allowed in pase the court should be of opinion that the plaintiffs were not bound to give a new lease. .

Judgment for the. plaintiffs, accordingly.