with the outstanding leases, which had been created prior to or were confirmed by the settlement.

In this case it appeared that John Galwey, being seised of lands for his life, with remainder to his son Edward Galwey in tail, subject to a lease of part for eighty-two years, and of the residue for thirtyone years, by indenture, dated the 18th of May, 1772, the father and son joined in limiting the premises, amongst others, to trustees to the use of John Galwey for his life, with remainder to Edward Galwey for his life, with remainders over in strict settlement, reserving power to John and Edward jointly, from time to time during their joint lives, to demise the premises, or any part or parts thereof for any number of lives or years, with covenant of renewal for ever at the ancient or accustomed rents or more, and so as in every such lease there should be contained a clause of re-entry for nonpayment of rent. And by another power the several successive tenants for life were enabled to demise the whole or any part of the premises for any term not exceeding three lives or thirty-one years, in possession and not in reversion, at the best rent and without fine. By indenture, dated the 29th of October, 1789, after reciting a lease of the 14th of November, 1765, by John Galwey to William Jackson, of part of the settled estate for thirty-one years, at a rent of £160; and after also reciting the settlement of May, 1772, and the joint leasing power thereby reserved, they, the said John Galwey and Edward Galwey, in consideration of £1600, granted the premises included in such recited lease to Sir Richard Kellett and his heirs for three lives therein named, with a covenant for renewal for ever at the ancient rent of £160, subject, however, to Jackson's lease, which was then subsisting, and reserving express authority to distrain, and for want of sufficient distress to re-enter in case the reserved rent should be in arrear. A similar lease of the same date, subject to the lease then outstanding, for a term of eighty-two years, was made by John and Edward Galwey of the premises included in such prior lease, to Sir Richard Kellett for three specified lives, with a covenant of renewal for ever at the ancient rent.

Upon the trial of an ejectment brought after the decease of both lessors, by the person entitled next in remainder under the settlement, a special verdict was found, upon which the Court of Exchequer (q) of Ireland gave judgement in favour of the plaintiff, solely by reason of an exception contained in the leases of "casualties by fire and war,"

(q) Nugent dem. Galwey v. Cuthbert, MSS.

but did not express any opinion on any of the other questions in the

case.

This judgement was reversed in the Exchequer chamber, and the judgement of reversal was affirmed by the House of Lords. It was insisted, in this case, that a concurrent lease of the premises was not warranted by the terms of the power, and that the intention of the parties to the settlement must have been, that the power of making leases for lives renewable for ever should only extend to such parts of the property as were then out of lease, or to such parts as should come into possession on the determination of the then subsisting leases, and that such was their object evidently appeared by requiring that every renewable lease to be executed should contain a clause of re-entry for nonpayment of rent, which would be unavailing during the continuance of a prior lease, and, while such prior lease subsisted, the remainder-man could not enforce payment of his rent either by re-entry, distress, or ejectment under the Statutes for its nonpayment.

Lord Eldon, in delivering judgement, observed, that looking to the interest of the parties, and to their intention, and to the purpose for which the power was inserted in the settlement, the object in reserving the joint power was quite clear; that the power which was reserved did not enlarge what either of them could do by virtue of the interest which they respectively had in the estate prior to the execution of the settlement, but continued a power of alienating the estate in another form by virtue of the execution of a joint authority reserved to themselves and it was observed by Lord Redesdale, that there could be no objection to the leases but by an inference attempted to be raised from the words directing that there should be inserted a clause of re-entry for nonpayment of rent; and it was contended that the leases, which in every other respect conformed to the words of the power, were to be deemed invalid, because by inference a restraint was imposed on the exercise of the power, though the natural construction was that only such a clause of re-entry should be reserved as the nature of the case required. By this judgement the validity of both leases was established.

46. Under a leasing power enabling the respective tenants for life, when in possession, to grant(r) building leases for ninety-nine years at the best rent that could be got for the same, a lease was granted by a tenant for life, for ninety years determinable on three lives, and after his decease, the succeeding tenant for life, during the continuance

(r) 2 Property Lawyer, 425.

of the first lease, granted a lease in reversion to another person for ninety-nine years commencing from the day of its execution, subject to the existing interest under the former lease, and on consideration by three eminent conveyancers, the second lease was declared to be void, because it was obvious that leases in reversion were not warranted by a power requiring the reservation of the best rent, as it was impossible to say, à priori, what would be the best rent at a future day.

The omission of any express clause in the power prohibiting reversionary leases does not indicate any intention that they should be allowed, but merely shews that the power was negligently or ignorantly framed.

power

Power to make leases in reversion, as well as in possession, does not enable a tenant for life, after making a lease in possession(s), to grant another lease in reversion of the same premises, because the is executed by making the first lease, and a lease in reversion under such a power must be construed (t) to mean a lease to commence in possession upon the determination of another lease in existence at the time of the reservation of the power, and not subsequently made.

47. Where the reversion of an estate expectant on determinable leases, is settled with a power enabling the tenant for life to make leases in possession, or conferring an indefinite leasing power which is silent on the subject of present or of future leases, it has not been expressly (u) decided whether a concurrent lease commencing in præsenti, and carrying the beneficial interest under a prior lease to the new lessee, is a valid execution of the power; but Sir Edward Sugden strongly expresses his opinion that such a concurrent lease cannot be supported. A concurrent lease has the effect of putting an end to all privity either of contract or estate between the original lessee and his lessor, and deprives such lessor or reversioner of the ordinary remedies for recovery of his rent, and disables him from maintaining any action for breach of covenant under the original lease.

be

48. Where an estate in reversion is made the subject of settlement with power to lease, either in possession or in reversion, an immediate or concurrent lease of the reversion, to commence in præsenti, may granted a reversion, subject to a lease for life, being settled, reserving power to lease for eighty years in possession, or in reversion,

(s) Winter v. Loveday, Carth. 429; 1 Com. Rep. 39; 1 Ld. Raym. 269, S. C.; Doe dem. Sutton v. Harvey, 1 B. & Cress. 426; 2 D. & Ry. 589.

(1) Winter v. Lovedore, 2 Salk. 537;

Coventry v. Coventry, 1 Com. Rep. 314,
Arg.

(u) 2 Sugd. on Powers, 397-410; but see Berry v. White, Bridg. by Bann. 94 and 592, with the cases there referred to.

determinable upon three lives at the ancient rent, it was determined(v) that a tenant for life under the power might grant an immediate lease of the reversion for eighty years determinable upon lives, concurrently with the pre-existing lease, although the words used were to make leases in reversion, and not of the reversion; and it was also laid down in the same case, that a lease in reversion, to commence on the determination of the outstanding lease for life, would have been warranted by the power.

49. A lease made to commence(w) from the day of the date, or from the sealing and delivery of the instrument, is now clearly settled to be a lease in possession, and not in futuro; and although the demise be made apparently to commence from a future day, if it can be shewn that the lease was not executed(x), or was not delivered until the time mentioned in the deed for its commencement, the instrument will be supported as a lease in possession; but if an interest, for however short a period, is allowed to intervene between the delivery(y) of the instrument and the period of its commencement, the lease will not be considered a valid execution of the power.

50. By a settlement dated in July, 1796, lands were limited to Richard Harte for his life, with remainder to William Johnson Harte for his life, with remainders over, reserving a power authorizing Richard Harte, with the concurrence(z) of his son W. J. Harte, to make leases of the premises for such terms of lives or years as they should think fit, provided such leases were made in possession, and not in reversion, at the best rent, and without taking any gift or other income for executing the same. By indenture, dated the 10th of April, 1801, Richard Harte and W. J. Harte demised fifteen acres of the premises to Andrew Vokes, his heirs and assigns, from the 1st of May then next ensuing, for three lives therein named, and the life of the survivor of them, and for the lives of such persons as should from time to time for ever be added pursuant to the covenant for renewal in said lease contained, at the yearly acreable rent of six guineas, payable half-yearly, the first

(v) Perot v. Cable, 16 Vin. Abr. Powers, 488, pl. 9; 2 Ro. Abr. 261, pl. 9; Godb. 195, pl. 281; 1 Brownl. 173; 2 Sugd. on Powers, 386; and see this case fully stated in the Appendix from Winch's Entries, 945 (No. 10).

(w) Pugh v. The Duke of Leeds, 2 Cowp. 714.

(x) Doe dem. Cox v. Day, 10 East, 427; Doe dem. Reece v. Robson, 15 E. 32; Steele v. Mart, 4 B. & Cr. 272; 6 Dowl. & Ry. 392; Hall v. Cazenove, 4

East, 477; 1 Smith, 272, S. C.; Lester v. Garland, 15 Vesey, 248-254; Stone v. Bale, 3 Lev. 348; Goddard's case, 2 Rep. 4, B.; Campbell v. Leach, 2 Ambl. 740746; Jack dem. Wheatley v. Creed, 2 Huds. & Br. 128.

(y) Bowes v. E. L. Waterworks Co., Jacob, 330; Doe dem. Allan v. Calvert, 2 East, 376.

(z) Fairclaim dem. Harte v. Wilson, K. B. Trin. 1836.

payment to be made on the 1st of November next following: the lessee covenanted to keep the premises in repair, and to expend £500 in building on and improving the demised premises, and was empowered to surrender the lands on any 1st day of May during the term, on giving six months' previous notice for that purpose, and paying up all rent; and the lessors covenanted that they, their heirs and assigns, should renew the lease from time to time for ever on payment of a fine of five pounds on the fall of every cestuique vie then existing, or thereafter to be nominated.

On the 12th of August, 1811, the lessors executed a renewal of the lease upon the fall of one of the cestuique vies pursuant to their covenant, and after their deaths, upon the trial of an ejectment brought by the person entitled in remainder, a verdict was found for the defendant, and a bill of exceptions was taken to the Judge's charge, insisting that the lease was not a valid execution of the power,-first, because it was made to commence at a future day, and that it was left to the jury to say whether it was not delivered after the period of its commencement; secondly, because the lease contained a covenant for renewal for ever; thirdly, because the lease contained a covenant for payment of a fine of five pounds on the fall of every life; fourthly, because the lease contained a clause enabling the tenant to surrender; and fifthly, because no time was limited for expending the sum of £500 covenanted to be laid out in building. Upon argument of the exceptions in the King's Bench, it was ruled, that the lease of 1801 having been read as an ancient deed, and there being no evidence of the time of its execution, the apparent date was not conclusive of the period of its delivery, and that the Judge was right in submitting the question to the jury whether it was not delivered on the 1st of May when it commenced in possession; but the Court decided that the lease was void by reason of the insertion of the covenant of renewal for ever; and though the lessors might have granted a lease for any number of years, yet such an indefinite authority could not affect the question as to the validity of a lease for lives, and that no inference could be deduced from the extensive nature of the power to make leases for any number of lives, against the express prohibition to make any lease in reversion, nor against the express condition requiring that the best rent should be reserved; that the covenant for renewal, which professed to bind the persons in remainder, was in effect a stipulation to grant a reversionary lease on the decease of each of the cestuique vies, and it was impossible to anticipate that the rent originally reserved should always continue the best rent which could be procured for the pre