We do not deem it necessary to have the testimony set out in the case, for we have repeatedly considered the statute, section 683; and at this term in Spence v. Cotton Mills, ante, 210, we have held that such contract, not being in writing and in compliance with the statute, and being executory in its nature, was void and incapable of ratification. The plaintiff cannot, therefore, be aided by the principle laid down in Jamesv. Russell, 92 N.C. 194, that where one stands silently by and hears a contract made by him for another he is bound by it, for a void contract could not be ratified or continued.
But the defendant became the tenant of plaintiff on 13 February, 1894, and paid the rent to him by the quarter, as if the quarter had begun on 1 January, 1893. No special contract was made between the plaintiff and defendant, and we can have no light from the dealings between defendant and the former owner. Did this constitute defendant plaintiff's tenant up to 1 January, 1894? Tenancies at will are not favored, and regular payments of rent, there being no express agreement that the tenancy shall be at will, raised the presumption of a contract for a time certain. "In the absence of words limiting or defining the nature of a tenancy, the principal test of a tenancy from year to year is whether there is a reservation of annual rent, or payment of, or an agreement to pay rent for such an aliquot part of a year, as monthly, quarterly or half-yearly, so that a presumption can be raised that the parties intended to create such a tenancy." 2 Wood Landlord and Tenant, 97; Steadman v. McIntosh, 26 N.C. 291. There was in this *Page 368 case evidence to show occupation and three quarterly payments, and no contract confining the tenancy to the quarter.
We are of opinion that this evidence should have been (538) submitted to the jury, with proper instructions, that they might determine the rights of the parties.
New trial.