M'Dowell against Simpson, 3 Watts 129

The opinion of the Court was delivered by Kennedy, J. The first error assigned is founded on an exception to the admission of Mr Brackenridge as a witness; first, because he has undertaken, as the agent of the plaintiff in error, who was also the plaintiff below, to give a lease of the land in question in this case to the defendants in error, under which they claimed a right to hold possession of it; and second, the matters of which he was to testify, were not the subject of oral evidence, because the act of assembly against frauds and perjuries requires that they should appear in writing.

His having undertaken to act in the character of an agent for the plaintiff, is not sufficient to render him incompetent. The general rule on this subject seems to be in favour of the competency of the agent as a witness, unless in cases where the principal is sued on account of the negligence of the agent. In such cases the agent cannot be a witness for the principal, because in the event of a recovery against the principal, the agent becomes liable to indemnify his principal; and the judgment against the principal would be evidence against the agent in an action by the principal for indemnity.

Hence it is the interest of the agent to procure by his testimony a judgment in favour of his principal, and therefore held incompetent. But the conduct of Mr Brackenridge is not impeached in this case; nor was he called to testify in favour of the plaintiff for whom he had undertaken to act as agent.

I am unable to perceive that his interest lay more on the one side than on the other in this case; and therefore ii cannot be considered that he was inadmissible on the ground of interest. ' Having then no interest in the result of the suit, why should he not be competent to establish by his own testimony his authority as an agent? He is not a party on the record to the suit, that he should be excluded for tbat reason. Nor can it be said that he does not know the fact as well as any other.

Then, unless there be some principle of policy that renders him incompetent as a witness for this purpose, it seems impossible to imagine any other ground for his being so; and so far as sound policy is concerned in the question, I am unable to satisfy my mind that the interest of the community would be advanced in the least by declaring him incompetent.

Next, as to the objection growing out of the act against frauds and perjuries, which declares, that “all leases, &c. made or created, &c. by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the form 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 any such parol leases or estates, or any former law or usage to the contrary notwithstanding, except nevertheless all leases not exceeding the term of three years from the making thereof.” Now, although from the terms of this act, the- authority under which Mr Bracken-ridge professed to act as the agent of the plaintiff, ought to have been in writing, so as to have given full effect to the lease according to its tenor; _ yet supposing he made it without either written or verbal authority, and that the plaintiff afterwards knowingly received the rents as they became due, and were paid under it by the tenants, it might very properly be considered an implied assent, at least, by parol to the lease on his part, and give to it the force and effect of a lease at will; and if the tenants were suffered to hold under it for upwards of a year, paying the rent as it became due, and the plaintiff receiving it without objection, the lease, instead of continuing to be a lease strictly at will, would thereby become a lease from year to year, so that the tenants could only be put out of possession at the end of a year, upon having received three months previous notice to quit.

See Riggs n. Bell, 3 Term Rep. 371; Clayton v. Blakey, 8 Term Rep. 3; Schuyler v. Ligget, 2 Cowen 663; Peoples. Richart, 8 Cowen 226. These were all facts which could be proved by parol evidence; and whether they existed or not, was a question which could only be decided by the jury after hearing the evidence. The testimony of Mr Brackenridge tended in some degree to prove these facts, or at least some .of them, and was therefore admissible. The remaining errors insisted on in the argument, present but two questions.

First, had Mr Brackenridge any sufficient authority from the plaintiff in error to make a lease of the property in question for a term of seven years 1 and second, if he had not, has Mr M’Dow-ell, the plaintiff, ratified and confirmed the lease made for that term of time by Mr Brackenridge 1 As to the first of these questions, when Mr Brackenridge made the lease for seven years, it is clear from his own testimony that he had no authority, not even'the colour of it, either verbal or written, from the plaintiff to make a lease of the property in dispute for more than one year.

We have seen from the act of assembly already recited, that an authority to make a lease of real estate, for a term exceeding three years, must be in writing; and though Mr Brackenridge had an authority in writing from the plaintiff to make a lease for one year, yet that was all, and his making it for seven years was as much

an act on his part without authority, as if he had had no power to make one for any period of time whatever.

Notwithstanding, however, this lease for seven years was made without authority, it was still in the power of the plaintiff to ratify and confirm it: and this brings us to the second question, Pías he done sol It is not pretended that he ever did so by writing, and although he may-have done it by parol without writing, yet it is obvious that such confirmation could give to the lease no greater force or effect than if he had made it himself originally by parol without writing; which would, according to the express terms of the act, have given it the force and effect of a lease at will, and nothing more.

It is proper to observe that such leases are not declared void by the act, but that they “ shall have the force and effect of leases or estates at will only.” But what was formerly held and considered to be a lease at will, is now deemed a lease from year to year, when possession has been taken under it and held for upr wards of a year, and the rent paid and received according to its terms.

Hence a parol lease made by .the owner of land without writing, or by his agent constituted without writing, for a term exceeding three years, and possession taken and held under it for more than a year, the tenant during that time paying and the landlord receiving the rents as they became due, would be construed after-wards a lease from year to year, and might be put an end to by either party at the end of any year upon giving three months previous notice of his intention to do so; hut at no other time could it be terminated, unless by the consent of both parties.

Although Mr Brackenridge made a lease in writing under his hand and seal for a term of seven years, yet as it was made without any authority from the plaintiff, it was not binding on him; but if he afterwards received the rents knowingly which became due and were paid on it without objection for„iipwards of a year, it may be considered as implying an assent on the part of the plaintiff, that the party paying the rent should hold the property mentioned in the written lease, on his paying the rent therein specified, as tenant from year to year.

But even an express declaration on the part of the plaintiff, without writing, that he was satisfied with the written lease, would not have been sufficient to make it other as to him than a parol lease without writing, because this would not make it “a lease in writing, signed by the. plaintiff or his agent, thereunto lawfully authorized by writing,” which is what is required hy the very words of the act against frauds.

In no view then that can be taken of the written lease made by Mr Brackenridge, and the subsequent consent of the plaintiff in respect to it, admitting all the evidence given on the trial to be true, can it be made such a lease of the plaintiff for a term of seven years as would be good under the act, or pass any other interest than an estate at will: or after the receipt of rent upon it for a sufficient length of time, may be turned into a lease from year to year.

Now although the court below in their charge to the jury were clearly of opinion that Mr Brackenridge had no authority whatever from the plaintiff to make such a lease as he did, and that the plaintiff had done nothing which could do more than make it equivalent, at most, to a parol lease by him without writing; yet they took up a notion that the jury from the evidence might consider it as taken out of the operation of the act against frauds, because the defendants had done some work in repairing the pavement in front of the house, and had, by the terms of the lease, undertaken to pay a larger rent than had been paid under former leases of the same property; and accordingly instructed the jury, that “if the plaintiff, with a full knowledge of the fact that the property had been leased for seven years, had received the increased rent, or stood by and permitted improvements to be made having reference to the new lease, it would be inequitable to rescind the lease; and under such circumstances the defendants would not be affected by the statute.” It is not necessary in this case to decide whether under any, or what circumstances, a jury might, according to the rules and principles which have'obtained in equity; enforce the specific execution of a parol lease, which, in its terms, comes within the provisions of the act against frauds : because the lease in question shows on its face that the making of improvements formed no part of the object either in giving or accepting it.

It is barely a demise of the property on the one side for a term of seven years, and a stipulation on the other to pay a certain rent per annum without any increase or diminution of it during the lease.

The enjoyment of the property in time past, and not in time to come, under such a lease, forms the consideration for the payment of the rent as it becomes payable, so that at the end of each quarter or year, as the rent becomes payable, the tenant, having enjoyed up to that time, has received the full consideration for the .quarter or year’s rent which has become due, and he can under no pretence withhold the payment of it; not even, I take it, were it. made manifest that he would be evicted the next day, before the expiration of the lease, under a better title than that of his lessor.

But if he will make improvements not contemplated or authorized by the lease, he must be considered as doing them at his own risk, since he does not choose to consult his landlord in respect to them. He cannot be permitted to improve his landlord out of his legal rights. In this case, however, all the improvements made, appear to have been nothing more than what are ordinarily incident to tenancies from year to year.

And as to the circumstance of the rent being greater than any previously paid for the same property, it is what generally occurs in every city or town in an improving condition, where both the population and business of it are increasing rapidly, as was the case here.

That the tenant may be induced to give a higher rent, in consideration of the extended term of the lease, is altogether probable, especially where it is believed that real estate is rising in value every year; but then this is so generally connected with the making of leases in all cases, that it cannot be made the ground for taking this case out of the act, without in effect undertaking to repeal it. Besides, it is obvious from the tenor of the act itself, that the longer the term agreed on may be, the greater the necessity for having it reduced to writing and signed by the parties.

It appears to me, therefore, that the court below erred in advising the jury that, under the circumstances given in evidence, they might consider the defendants as not affected by the statute. Judgment reversed, and a venire de novo awarded.