50 N.C. 272 | N.C. | 1858
A lease for years is a contract, by which one agrees, for a valuable consideration, called rent, to let another have the occupation and profits of land for a definite time. At common law, a lease could be made by parol, for any *275 number of years, but entry was required to execute the contract and vest anestate as a term for years.
Not only the land, but any part thereof, the herbage, trees, minerals, i. e., coal, copper, c., could be made the subject of a term for years.
The rent or consideration was most usually reserved to be paid annually; in which case, if is was the value, or nearly so, it was called "rackrent;" but the whole might, according to the contract, be paid at the outset, and was then called "a fine," and in such cases it was usual to reserve something nominal, i. e., "a peppercorn," to be paid annually, during the continuance of the term. This was done simply to mark the relation of the parties, and in long leases, was a prudent precaution, least peradventure the lessee, or his assignee, might seek to make an improper use of the long possession, and disavow the estate of the lessor. For instance, suppose the value to be $100: if, by the contract, it was to be paid annually, for eight years, the lease would be upon rack rent; if the $800 was paid down, the lease would be upon "a fine."
In our case the contract is in writing, as required by statute; the statute of uses transfers the legal estate, and perfects the term without entry; a definite time, i. e., eight years from the date of the covenant is fixed; a note for $800 is accepted as "fine," and there is a subject capable of being leased i. e., the cypress trees on a tract of land, the boundaries of which are set out. So, the question is narrowed to this: Was it the intention of the parties to make, by this instrument, a mere personal contract, the remedy, for a breach of which, would be against Moring or his personal representative in damages, and would not affect the land in the hands of the purchaser; or
Was it the intention to make a term for years, and create an estate, which is protected by an adequate remedy?
The rule, ut res magis valeat quam pereat, and every principle of construction, force us to the conclusion, that it was the intention to create an estate, so as to enable Simmons to occupy and take the cypress trees for eight years, and not to leave it in the power of Moring to deprive him of the *276 enjoyment thereof. Assuming this to have been the intention, the authorities cited in the argument are full, to sustain the position that no technical words, or set form, are required to make a valid lease for years.
A term for years, being assignable, it follows that the defendant was possessed of an estate, which gave him the right to enter.
The judgment is reversed, and upon the agreement, judgment of nonsuit.
PER CURIAM, Judgment reversed.
