man convey -a messuage & c. HABENDUM, -in fee. close. and remainder confirmed, And by these presents Do, and each of them Doth give, grant, and confirm unto the said [tenant in fee], All that messuage or tenement situate in the parish of in the county of, formerly in the tenure or occupation of ——, late in the tenure or occupation of and now in the tenure or occupation of, Together with all out-buildings, yards, gardens, walls, fences, lights, ways, watercourses, easements, rights, members, and appurtenances to the said messuage or tenement belonging or appertaining: To HAVE AND TO HOLD the said messuage or tenement, hereditaments, and premises lastly hereinbefore given, granted, and confirmed, with the appurtenances, unto the said [tenant in fee], his heirs and assigns for In exchange for ever, IN EXCHANGE for the close of land, hereditaments, and premises hereinbefore given, granted, and confirmed by the said [tenant for life] and [remainder-man]; Provided (18) nevertheless, that if either of the parties to this exchange, or the heirs or assigns (19) of either of them, shall at any time hereafter be lawfully evicted or ejected of or from the possession of the hereditaments and premises hereby given, granted, and confirmed to the same party, or any part thereof, by reason of any right or title paramount or precedent to the exchange hereby made, then it shall be lawful for the other party, or the heirs or assigns of the other party, to re-enter upon the hereditaments and premises hereby given, granted, and confirmed by the same party, or into or upon any part thereof in the name of the whole, and to repossess and enjoy the same hereditaments and premises as in his or their former estate, and thenceforth the exchange hereby made shall be void. IN WITNESS &c. Clause of reentry on eviction. Eviction clause. MEMORANDUM of Mutual Entry to be indorsed on the preceding BE IT REMEMBERED, that, on the day of the date of the within-written indenture, the exchange thereby made was duly perfected by the actual entry of the respective exchanging parties into or upon the respective hereditaments given to them in exchange, in the presence of us, [names and additions of witnesses]. (18) A clause to this effect is commonly inserted in exchange deeds, but its efficacy and propriety are very questionable. (See 4 Jarm. Conv. 88). (19) See conclusion of note (14), ante. LEASE. No. 4. LEASE (or Demise) (20) of a Furnished Dwelling- THIS INDENTURE, made the day of in the year Date. words. of our Lord —, BETWEEN [lessor], of &c., of the one part, Parties. and [lessee], of &c., of the other part (21), WITNESSETH, that, TESTATUM. in consideration of the yearly rents, covenants, and conditions hereinafter respectively reserved and contained, by the said [lessee], his executors, administrators, and assigns, to be respectively paid, observed, and performed, The said [lessor] Hath Operative demised and leased, and by these presents Doth demise and lease unto the said [lessee], All that messuage or dwelling- Parcels. house, situate in the parish of aforesaid, and commonly called or known by the name of, with the out-buildings, gardens, and pleasure-grounds thereunto belonging; Also the fixtures and furniture in or belonging to the said messuage or dwelling-house, and comprised in the schedule or inventory hereunto annexed; Also all that close of meadow or pasture land lying in front of the said messuage or dwelling-house, and containing acres, or thereabouts; Also all that close of arable land adjoining to the said close of meadow land, and containing — acres, or thereabouts; Also all that piece or parcel of wood-ground, lying near to the said messuage or dwelling-house, with the shrubbery and walk through the same, (20) An example of a lease (or demise) operating necessarily and exclusively at the common law, cannot easily be given, because the rent reserved is alone sufficient to raise a use, and render the instrument capable of effect as a bargain and sale. Lease at common law. leases. (21) Recitals are of rare occurrence in leases. Even where the lease is of recitals in granted pursuant to a power, a general reference, in the testatum, to the power, commonly supplies the place of a recital, but it is better to recite the deed creating the power, shewing the estate of the donee of the power, and setting forth the power fully; and a covenant should be added for the production of the deed. HABENDUM, containing acres or thereabouts, all which premises are now in the occupation of the said [lessee], and are delineated in the plan drawn in the margin of these presents; Together with all the rights, members, and appurtenances whatsoever to the said premises belonging or appertaining: To HAVE AND TO HOLD the said hereby demised premises, with their appurtenances, unto the said [lessee], his executors, administrators, and assigns, for the term of years, to be comREDDENDUM, puted from the day of last, YIELDING and paying therefore unto (22) the said [lessor], his heirs or assigns, -for term of years. Leases under powers-reservation of rent. Caution as to (22) When the lease is granted under a power of leasing given to a tenant for life, the better plan is to reserve the rent generally, without stating by whom it is to be received; and the same observation applies to every case in which the circumstances of the title would render the framing of a reservation in favour, expressly, of the persons entitled to the reversion, difficult or hazardous. The reservation may declare, (adopting the usual language of powers to lease), that the rent shall be "incident to the reversion;" but the law, without the aid of any declaration, gives the rent to the reversioner for the time being. It may be useful to repowers of tenant mark, that a tenant for life with power of leasing, &c., departing with for life aliening. his life estate, or demising for a term of years, to a mortgagee or annuitant, should expressly stipulate (if such be the understanding of the parties) for the right of exercising his powers notwithstanding the conveyance or demise. The stipulation may be to this effect:-"Provided, "nevertheless, that these presents shall not extinguish or suspend any "of the powers, authorities, or discretions, [or, the power of leasing, or any other specified powers], given to the said [tenant for life] by the "said recited indenture of settlement, but every such power, authority, "and discretion shall be exercisable by the said [tenant for life], without "the concurrence of the said [grantee of tenant for life], (his heirs,) executors, administrators, or assigns, as effectually as if these presents had not "been made." With reference to the effect of alienation by tenant for life dant,-their upon powers appendant (as they are termed) to the life estate, the recent case of Long v. Ranken (Sugd. Pow. 6th edit. App. n. 2) is particularly important. (See also Tyrrell v. Marsh, 3 Bing. 31; 10 Moo. 305: Davies v. Bush, M'Clel. & Y. 53). The view there taken by Lord Tenterden of powers to appoint the use, appears to be the result of a clear and accurate perception of the principles on which they really operate. The learned judge seems to reject the notion which treats the estates arising under them as taking effect wholly or partially out of the estate of the donee of the power, and which refers them, on that ground, to a separate class, when he observes-" a leasing power given to a tenant for "life, is usually spoken of in our books as a power appendant to the es"tate of the tenant for life; and it is said that the estate of the lessee is in "such a case derived out of the estate of the tenant for life, for such period " of the term as he may happen to live. It would probably be more correct "to say, that it operates upon that estate, than to say, that it is derived Powers appen mode of opera tion. 66 day of of a yearly rent payable half-yearly; of an additional rent per acre for meadow or pasture broken up. during the said term, the yearly rent of £ of lawful British money, in even portions half-yearly, on the day of and the in every year; ALSO YIELDING and paying during the said term, unto the said [lessor], his heirs or assigns, on the days aforesaid, (in addition to the said yearly rent of £, hereinbefore reserved), for every acre of meadow or pasture ground which the said [lessee], his executors, administrators, or assigns, shall plough, break up, or convert into tillage, contrary to the covenant hereinafter contained, the yearly rent of £ of like lawful money, on the days and in manner aforesaid, the first payment of the said additional rent to be made on such of the said days as shall happen next after such ploughing, breaking up, or conversion into tillage, as aforesaid. AND the said [lessee], for himself, Covenants by his heirs, executors, administrators, and assigns, hereby covenants with the said [lessor], his heirs and assigns, that the said to pay rents; [lessee], his executors, administrators, or assigns, will, during the said term of years, pay or cause to be paid unto the said [lessor], his heirs or assigns, at the times and in manner aforesaid, the said yearly rents hereby reserved, or such of them as shall be payable; Also, that the said [lessee], his executors, to pay taxes administrators, or assigns, will pay and discharge all taxes, rates, assessments, and impositions, parliamentary and parochial, (including land-tax), which, during the said term, shall become payable in respect of the said demised premises; Also, that the said to repair; [lessee], his executors, administrators, and assigns, will, during the said term, at his or their own expense, maintain and keep the said demised premises, (other than the said furniture), with lessee; and rates; "out of it even during that period." In truth, uses limited in execution of powers always receive their legal character from the impression originally communicated to the seisin raised to serve all the uses, limited and to be limited, by or under the conveyance containing the power, and are wholly independent of the estate of the donee. However convenient it may be to divide powers into powers appendant, powers in gross, &c., yet that division is rather formal than substantial. The execution of the ordinary power of leasing operates upon the estate of the tenant for life, because that estate is a component part of the fee upon which the power is superinduced. The Powers simply most remarkable feature in the doctrine of powers (and it must be considered an anomaly) is, that a power simply collateral, as, for example, a structibility. power of revocation and appointment, given by a settlement to a stranger, taking no estate in the land, cannot be released by the donee. Of course, the donee may refuse it in the first instance, but having accepted it, he cannot, it seems, afterwards extinguish it. collateral- their inde -to preserve and not remove furniture; -not to cut trees, except unprofitable fruit-trees, but same, with the shrubberies, &c. preserve the the walls, fences, drains, sinks, sewers, and appurtenances thereunto belonging, in good and tenantable repair and condition; Also, that the said [lessee], his executors, administrators, or assigns, will, during the said term, carefully preserve the said furniture from damage or injury, (reasonable use and wear thereof only excepted), and not remove, or suffer to be removed from the said messuage or dwelling-house, any article of such furniture; Also, that the said [lessee], his executors, administrators, or assigns, will not, during the said term, fell, cut down, lop, or top any of the timber or other trees now growing or being, or which, during the said term, shall grow or be upon the said demised premises, (except decayed or unproductive fruittrees in the said gardens), but will preserve the same trees, (except as aforesaid), and the shrubberies, hedges, and underwood belonging to the said premises, from damage or injury by cattle or otherwise; and will also, during the said term, keep the said pleasure-grounds and other ornamental parts of the said premises in as good order as the same have been usually kept by the said [lessor], and not use the same otherwise than for the purposes of pleasure and ornament; Also, that the said [lessee], his executors, administrators, or assigns, will, during the said term, cause the fruit-trees and young plantations in or upon the trees cut down; said demised premises to be properly pruned at seasonable times of the year, and plant in the place of every decayed or unproductive fruit-tree in the said gardens, which shall be cut down by him or them, a thriving young tree of proper growth, bearing fruit of the same or the like description; Also, that the said [lessee], his executors, administrators, or assigns, will, during the said term, keep the gardens and garden-ground belonging to the said dwelling-house well cropped and manured, and manage the same according to approved methods of gardening; Also, that the said [lessee], his executors, administrators, or assigns, will not, at any time or times during the said term, plough, break up, or convert into tillage, all or any part of the said meadow or pasture-ground, without first obtaining the license in writing of the said [lessor], his heirs or assigns, for that purpose; Also, that the said [lessee], his executors, administrators, or assigns, will, in every year during the said term, at the proper season, plash the hedges and scour the ditches belonging to the said demised premises, and cause all the dung, manure, and compost, to arise from or be made upon the said demised premises, or any part thereof, to be spread or bestowed -to prune fruit trees and young plantations, and replace fruit -to crop and manage the gardens; -not to break up meadow or pasture; -to plash hedges, scour ditches, spread manure, &c. |