paid for the same lands, so to be letten, within twenty years next before such lease thereof made: and that every such person to whom the reversion of such lands so to be letten shall appertain, after the death of such lessors, or their heirs, shall have such like remedy and advantage against the lessees thereof, their executors and assigns, as the same lessor might have had against the same lessees. The third section provides that the wife be made party to every such lease, which shall be made by her husband, of any lands or tenements, being the inheritance of the wife, and that every such lease be made by indenture in the name of the husband and his wife, and she to seal the same; and that the rent be reserved to the husband, and to the wife, and to the heirs of the wife, according to the estate of inheritance in the same and it is provided that this Act shall not extend to give any liberty to any such wife, or to her heirs, to avoid any lease of any inheritance of the wife, by her and her husband, for a term of one-and-forty years or under, or for the term of three lives, whereupon as much yearly rent, or more, shall be reserved, payable yearly during the same lease, as was at any time theretofore paid, within twenty years next before the making of any such lease. 7. If the conditions prescribed by the Statute be strictly observed, a tenant in tail, or husband seised in fee simple, or in fee-tail in right of his wife, may grant leases, either for forty-one years or for three lives, which will be valid and effectual against the issue in tail, or against the heirs of the wife(q), or her issue in tail; but a lease made by tenant in tail, pursuant to the Statute, will only be binding on the issue inheritable to the entail, and will not affect(r) or prejudice the persons in remainder, or reversion, after the determination of the estate tail, nor will acceptance of rent by the persons in remainder, or reversion, amount to a confirmation of the lease, because the lease being derived out of the estate-tail, cannot be made to endure for a longer period than the estate out of which it is derived. Husband and wife being seised of lands to them and to the heirs of the body of the husband, made a lease for three lives at the ancient rent, and it was adjudged(s) that the wife should not be bound by the lease, after her husband's decease, because the Statute only extended to the wife's inheritance. (9) Hill v. Saunders, 2 Bing. 112; 9 Moore 238; 4 B. & Cress. 529; 7 D. & Ry. 17, S. C. (r) Bro. Abr. Co. Litt. 45, B.; Acceptance, pl. 19; 34, A.; Reeve v. Cox, Noy. 66. (s) Hargr. note, 256, to Co. Litt. 44, A.; and see Smith v. Trinder, Cro. Car. 22. 8. If, however, the circumstances required by the Statute be not observed (t), Courts of Equity have no authority to supply the omission, because such leases are only allowed on certain conditions, and therefore an equitable agreement for a lease by husband and wife seised in her right, will not bind the wife surviving, or her heirs, because leases, and not agreements for leases, are warranted by the Statute. 9. In order to render a lease under this Statute effectual, it must be made(u) by deed indented, and must commence(v) from the day of the making or delivery of the instrument; and if made by a husband of his wife's lands, both husband and wife must be parties, and the lease must be sealed by the wife; but if the husband be seised of an estate of inheritance jointly with his wife, the execution of the lease by the husband(w) alone will be sufficient. Old leases must expire, or be absolutely surrendered(x), or ended, within one year from the making of the new lease; but the acceptance of a new lease by the person entitled to the prior lease, being a surrender in law of the former lease, is a compliance with the Statute. A surrender made on condition(y) that it should be void, unless a new lease for three lives were granted in a week, was deemed sufficient where the stipulation was fulfilled. A lease having been made by the warden(2) and poor of an hospital for twenty-one years, while a former lease was in being, which, according to the English (a) Statutes, should expire, or be surrendered within three years after the grant of the new lease; the new lessee procured an assignment of the old lease within the limited period, and the Court ruled that the new lease was binding. This cause being heard under an order of the Court of Chancery, no reasons were assigned by the Judges for their certificate; but it was probably founded on the union of the two terms in the same individual, constituting a surrender by operation of law. The duration of leases under this Statute must not exceed forty-one years, or three lives; and, consequently, a lease for three lives(b) and (t) 1 Bythewood by Jarman, 17; Ld. Darlington v. Pulteney, Cowp. 267; Shannon v. Bradstreet, 1 Sch. & Lef. 71; Anon. Freem. Rep. in Chan. 224. (u) Co. Litt. 44, B.; Bac. Abr. Leases. (v) Hargr. note, 257, to Co. Litt. 44, A. (w) Smith v. Trinder, Cro. Car. 22; Godb. 102, pl. 119. (x) Grumbrell v. Roper, 3 B. & Ald. for forty-one years concurrently, or for whichever of the lives or years should last longer, cannot be supported. 10. It was laid down in Whitlock's case(c), that a power reserved by deed to make leases for three lives, did not warrant a lease for ninety-nine years determinable upon three lives; but it is considered that a lease for ninety-nine years, depending on three lives, may be supported under(d) this Statute, because the leasing power given by the Act is indefinite, and a lease for years, determinable on lives, is not inconsistent with the proviso restricting the extent of the lease. 11. This Statute does not extend to a lease of any lands or tenements which had not been commonly letten to farm, or occupied by the farmers thereof for twenty years next before the making of such lease. The object of this clause was to exclude(e) from the operation of the Act leases of mansion houses, or demesnes which had not been usually demised, or leases of lands which had not been occupied by tenants for twenty years next preceding. However, an occupation of lands by tenants for eleven years, or more, either at one time, or at several times within twenty years next before the making of the lease, will be sufficient. 12. It is also provided by this Statute that there be reserved yearly during every such lease to the lessors and their heirs, to whom the lands should have come after the deaths of the lessors, and to whom the reversion thereof should appertain, according to their estates and interests, so much yearly rent as had been most accustomably paid for the same lands so to be letten within twenty years next before such leases thereof made, and that such leases should not be made dispunishable of waste. The rent intended to be reserved must be particularly specified, or the lease must refer to some standard from which the amount may with certainty be ascertained; for if the reservation be vague(ƒ) and indefinite, or pursue the general terms of the Statute, the lease will be void. The rent ought to be reserved to the lessor and to the persons who should from time to time be successively entitled to the reversion of the (c) Whitlock's case, 8 Rep. 69, B.; Chappel v. Whitlock, 1 Brownl. 169, S. C.; Roe dem. Brune v. Prideaux, 8 East, 158-184. (d) 1 Sugd. on Powers, 514-517; 4 Cruise's Dig. Deed, c. 7, s. 31; Bac. Abr. Leases, E. 4; Smith v. Trinder, Cro. Car. 22; but see Glanville v. Payne, D 2 Atk. 39; Paget v. Gee, I Ambl. 200, by Ld. Hardwicke. (e) Bac. Abr. Leases, E. 6; Pemble v. Sterne, 1 Leo. 212; Thos. Raym. 165, S. C. (f) Owen v. Ap. Rees, Cro. Car. 94; Orby v. Lord Mohun, 3 Rep. in Chan. 60. demised premises; but if the reservation(g) be made to the lessor, his heirs and assigns, or generally during the term, it will be sufficient, as the law will distribute the rent to the persons entitled. 13. A lease made under this Statute of lands usually demised, along with other premises (h) not accustomably letten at a gross rent, will not bind the issue in tail, as there cannot be any apportionment of the rent. 14. By the Irish Disentailing Act(i), 4 & 5 Will. IV. c. 92, it is enacted, that no assurance by which any disposition of lands shall be effected under this Act by a tenant in tail thereof (except a lease for any term not exceeding twenty-one years, to commence from the date of such lease, or from any time not exceeding twelve calendar months from the date of such lease, where a rent shall be thereby reserved which at the time of granting such lease shall be a rack-rent, or not less than five-sixth parts of a rack-rent), shall have any operation, unless it be enrolled in his Majesty's High Court of Chancery in Ireland within six calendar months after its execution. (g) Cother v. Merrick, Hardr. 89; Whitlock's case, 8 Rep. 71, A.; Rogers v. Humphreys, 5 N. & Mann. 511; 4 Ad. & Ell. 299. (h) Ld. Mountjoy's case, 5 Rep. 3, B.; Moore, 197; Tanfield v. Rogers, Cro. Eliz. 340; Smith v. Bowles, 3 Bulst. (i) 4 & 5 Will. IV. c. 92, s. 39, Irish; 3 & 4 Will. IV. c. 74, s. 41, English. CHAPTER II. LEASING POWER. 15. Leases under Powers take Precedence of any Estate limited by the Instrument creating the Power. 16. Leases consistent with, though not referring to the Power, valid. 17. Leases valid against Tenant for Life himself, though contrary to Stipulations of the Power. 18. Leasing Power to be construed without Reference to any Party. 19. Lease by Person with limited leasing Power, who has also the whole legal Estate, binding at Law, though contrary to the Power. 20. Lease made under a Power may be taken in Trust for Tenant for Life. 21. Lease not warranted by Power, void against Remainder-man. 22. When Lands are deemed to have been usually let. 23. Lands not subject to Rent are not demisable under Powers requiring Reservation of the usual Rent. 24. Powers to demise at the usual Rent, construed according to the Intention to be collected from the Nature of the Property. 25. Higgins v. Lord Rosse—Building Leases. 26. Farms previously included in one 27. Under Power requiring the ancient the ancient Rent. 29. But a Lease of Lands of which a Person is seised in Fee, along with Lands subject to a limited leasing Power at a gross Rent, though void for the settled Estate, is valid for the rest. 30. Power to demise on same Conditions as in former Leases, not satisfied by a Lease, excepting the Bodies of Trees, where former Leases excluded Trees likely to prove Timber. 31. Under a limited Power, a Demise of Part of the Lands, with a Right of Shooting over the whole, cannot be supported. 15. A TENANT for life, or for any other limited period, could not, by the rules of the common law, make any lease which would continue longer than the duration of his own estate; and it has therefore become the ordinary practice to insert powers, founded on the Statute law, in family settlements and wills, for the purpose of enabling the successive tenants for life to grant leases for certain terms of lives, or years, according to the nature and circumstances of the property, which shall be binding on the persons in remainder, or reversion. Leases executed in pursuance of powers reserved by deed, take effect by way of limitation of the use(a) out of the original seisin of (a) 1 Sanders on Uses, 162; 2 Sanders, 72; Whitlock's case, 8 Rep. 71, A.; Sir Edw. Cleere's case, Rep. 18, A.; Doe dem. Wigan v. Jones, 10 B. & Cress. 459; 5 M. & Ry. 563; Eaton v. Sanxter, 6 Sim. 517; Skeeles v. Shearly, 8 Sim. 153; 3 Mylne & Cr. 112, S. Č. on Appeal. |