term not exceeding ninety-one years or three lives(o) in possession, or reversion, and also to demise the rest of the settled estates for

any term not exceeding three lives or thirty-one years, in possession, and not in reversion, so as every such lease should be made by indenture, at the best rent, without fine, and so as none of such leases should be made dispunishable of waste, nor without a clause of re-entry for non-payment of rent a lease in reversion having been granted under this power, of the lands of Rathenny at an undervalue, it was decided that the restrictive clauses should not be confined to leases taking effect in possession, but were equally applicable to leases in reversion, and that there was no difficulty in ascertaining the best rent to be reserved on leases in reversion, because the rent required was not the best rent which could be obtained at the commencement of the lease in possession, but at the time of making the demise.

69. If the power requires that the leases shall be executed by one or more trustees, or in the presence of any particular persons, or in any prescribed manner, the directions must be accurately followed.

Under a power to demise for lives renewable for ever, provided such lease were made with the consent of five trustees named in the power, a lease which was erroneously supposed to have been(p) executed only by four of the trustees, was held not to be a valid execution of the power, and that a Court of Equity could not supply the defect; but upon a subsequent discovery that the fifth trustee had actually sealed and delivered the instrument, though he had omitted to affix his signature, Sir Anthony Hart decided that the instrument was the concurrent deed of all the trustees, and that the sealing and delivery by the fifth trustee was a valid execution of the lease, in pursuance of the power.

If the power direct that the demise shall be made by indenture, the lease(q) must be signed and sealed as well by the lessor as by the lessee, and if it be stipulated that the indenture of lease shall be under the hand and seal of the lessor(r), attested by two witnesses, the attestation must contain a statement that the instrument was signed and sealed by the lessor, and the omission in the attestation to take notice either of the signature, or of the sealing(s), renders the lease unavailing, nor can such a defect be supplied or remedied, either by any(t) subsequent

(0) Doe dem. Ld. Howth v. Pike, Cooke & Alc. 42.

(p) Sadler v. Lovat, 1 Moll. 162. (q) 1 Sugd. on Powers, 297. (r) Wright v. Wakeford, 4 Taunt. 213; Doe dem. Mansfield v. Peach, 2 M.

& Selw. 576; Wright v. Barlow, 3 M. & Selw. 512.

(s) Doe dem. Hotehkiss v. Pierce, 6 Taunt. 402; 2 Marsh. 102, S. C.

(t) Doe dem. Mansfield v. Peach, 2 M. & Selw. 576.

attestation, or by the parol(u) testimony of the subscribing witnesses, that the instrument was actually executed conformably to the directions of the power.

The Statute(v) 54 Geo. III. c. 168, was passed for the purpose of remedying the omission to mention the signature, in the attestation of instruments executed prior to the 30th day of July, 1814, and taking effect under such powers; but the Act is not prospective, and does not apply to any omission in the attestation except the signature.

Leases under powers, when prepared with accuracy, should state in the body of the instrument that the formalities (w) required in the execution of the power had been complied with, as such a statement may render a general attestation(x) effectual, which does not take notice of any of the formalities, though it will not remedy defective attestation, in which some of the formalities are mentioned (y), whilst others are omitted.

Where a leasing power authorized the party in possession, by any writing or indenture by him duly executed in the presence of two or more credible witnesses, to demise all or any part of the lands, for the term of one life, and a term not exceeding twenty-one years, to commence in possession, at the best rent, it appeared that a lease was executed by the parties, with only one subscribing witness, and parol evidence was given that the instrument was(z) filled up by another person, who also saw it executed, and the Court ruled, that although, by the terms of the power, it was not requisite there should be a subscribing or attesting witness to the lease, yet that the requisite witness must be a person who was selected and called upon by the parties, at the time, for that purpose, and that the lease was not executed in conformity with the power.

Under a power to demise premises with the consent of a third person in writing, duly attested, it was ruled that the power was not well executed, by a demise(a) professing to be made by such person, testified by her being a party to the deed, because the term "attest" manifestly implies the presence of a witness, to testify that the party who is to execute the instrument has done the act required by the power,

(u) Doe dem. Hotehkiss v. Pierce, 6 Taunt. 402.

(v) 54 Geo. III. c. 168, English & Irish, commonly called "Preston's Act;" 1 Sugd. on Powers, 321.

(w) See 2 Bythewood's Conv. by Jarman, 502.

(x) Doe dem. Spilsbury v. Burdett, 4 Ad. & Ell. 1; 6 Nev. & M. 259, S. C.

(y) Wright v. Barlow, 3 Maule & S. 512; Doe dem. Spilsbury v. Burdett, 4 Ad. & Ell. 1; 6 Nev. & M. 273, S. C.

(z) Lessee Church v. Donnell, 4 Irish Law Rep. 306; Sayle v. Freeland, 2 Ventr. 350; 2 Rep. in Chan. 210, S. C.

(a) Freshfield v. Reed, 9 Mees. & W.

404.

the object of which is, that some person shall verify that the deed was signed voluntarily.

70. A lease for years granted by tenant for life, to take effect out of his interest, cannot be defeated by the exercise either of a leasing power, or of a power of revocation(b), nor will a lease for years made by a tenant for life, who has a power of revocation, disable him from exercising his power to revoke and limit new uses, but the lease will not be prejudiced (c) by the subsequent execution of such power.

If tenant for life, with power to grant leases in possession, convey away his whole estate absolutely, the leasing power will be extinguished by such total alienation; but where the life-estate is merely conveyed by way of mortgage, or to secure the payment(d) of an annuity, or in trust for creditors, the power may be exercised by the tenant for life, provided such right be reserved by the deed creating the incumbrance.

Lord Mansfield held that(e) a conveyance of the life-estate merely as a security, or to satisfy a particular object, where the tenant for life continued in the receipt of the rents and profits, did not prevent him from exercising his leasing power, although such a right was not expressly reserved by the conveyance. The authority of the preceding decision has been often questioned, but it is now settled(f), that a mortgage by tenant for life(g), either for a term of years(h) or for his entire estate, or any other grant by way of security out of his life estate, where he retains an interest, will neither defeat nor suspend a bona fide exercise of his leasing power, provided the rights of third persons deriving under such securities shall not be prejudiced, and though no right to exercise the leasing power be expressly reserved.

(b) Goodright dem. Hare v. Cator, 2 Doug. 477.

(c) Doe dem. Courtail v. Thomas, 9 B. & Cress. 288; 4 Mann. & Ry. 218, S. C. (d) Long v. Rankin, 1 Sugd. on Powers, 68-549; and see Bringloe v. Goodson, 4 Bing. N. C. 726, 6 Scott, 502.

(e) Ren dem. Hall v. Bulkely, 1 Doug.

292.

(f) 1 Sugd. on Powers, 58.

(g) Bringloe v. Goodson, 4 Bing. N. C. 726; 6 Scott, 502.

(h) Walmsley v. Butterworth, Coote on Mortg. 703, by Ld. Cottenham ; Tyrrell v. Marsh, 3 Bing. 31; 10 Moore, 305, S. C.

CHAPTER V.

LEASING POWER.

78. Executory Contract for a Lease under Power, enforced in Equity. 79. Yearly Tenancy created by Tenant for Life, not binding on Remainder-man.

80. Whether Executory Contract for a
Lease by Tenant for Life exceed-
ing his Power, can be enforced
pro tanto.

81. Taylor v. Stibbert.
82. Lease unauthorized by Power, im-
peachable by Remainder-man af-
ter a valid Sale of the Reversion.
83. Lease renewable for ever, bad un-
der leasing Power, not confirmed
by Length of Time.

84. Leasing Power of Lunatic trans-
ferred to Committee of his Estate.
of Bankrupt or Insolvent, to
his Assignees.

85. Leasing Powers conferred by Sta

tute.

71. It is not satisfactorily settled in what instances equitable relief shall be extended to make good a lease under a power which cannot be supported at law. In the construction of such leasing powers as are originally(a) in their own nature legal, Courts of Equity must follow the law; and the power conferred by Statute on tenants in tail, if not executed in the requisite form, cannot be made available in equity, because where the legislature has declared, that an instrument shall be void for want of any prescribed form, the interference of equity in supplying the defect would defeat the policy of the enactment.

72. At law, a lease for ninety-nine years is not a valid(b) execution of a power to demise for twenty-one years, even to the extent of the period warranted by the power; but if there be a complete(c) execution of the power, though something improper be added, the excess will only be void in equity; however, if the execution of the power be

(a) Ld. Darlington v. Pulteney, Cowper, 267; Shannon v. Eradstreet, 1 Sch. & Lef. 71; but see Donnell v. Church, 4 Irish Eq. Rep. 630.

(b) Roe dem. Brune v. Prideaux, 10 East, 187.

(c) Alexander v. Alexander, 2 Vez. Sen. 644.

incomplete(d), or the boundaries between the excess and the execution be not distinguishable, a Court of Equity will not interpose. A lease for forty years, made under a power to demise for twenty-one years, will be sustained(e) in equity for the shorter period, and will only be void for the excess.

So, if a lease be granted for three lives, with a covenant of renewal for ever by tenant for life, under a limited power to demise only for three lives, the lease is absolutely void(ƒ) at law against the remainder-man, but will be supported in equity during the existence of the original(g) cestuique vies, and the covenant for renewal will be rejected

as an excess.

73. Where a lease for seventy years is granted inadvertently by tenant for life(h), under a power authorizing only a lease for three lives, or thirty-one years, there is no equitable principle for reforming it at a subsequent period by making it a lease for three lives then to be named, as the Court never can act with safety in carrying such a contract into effect, because lives nominated at the time of granting the lease might have fallen long before the institution of the suit.

74. It has been laid down(i), upon the authority of Campbell v. Leach(j), that tenants, being purchasers for valuable consideration of the interest contracted for by them, are entitled in equity to have forms dispensed with, provided the interest which they have contracted for, is within the limits of the power. This position is strongly controverted by Sir Samuel Romilly, who observes, that where Courts of Equity have given validity to leases which were void at law, the decisions were founded(k) on special circumstances, and not on any general doctrine, that a Court of Equity will, as a matter of course, supply a defect in a lease granted by tenant for life, in a manner not conformable to his leasing power.

Lord Mansfield has said, that powers in family settlements, being considered as reservations of so much of the absolute(1) dominion of the

(d) 2 Sugd. on Powers, 80.

(e) Alexander v. Alexander, 2 Vez. Sen. 644; Hervey v. Hervey, 1 Atk. 569; Barnard. in Chan. 116, S. C.; Campbell v. Leach, 2 Ambl. 740; case of the Queensberry Leases, 1 Bligh's Parl. C. 437; Parry v. Brown, 2 Freem. 171; 3 Rep. in Chan. 6; 1 Cases in Chan. 23.

(Fairclaim dem. Harte v. Wilson, K B. Trin. MSS. ante, 54.

(g) Hackett v. Hobart, 1 Jones' Ex. Rep. 288.

(h) The Attorney-General v. Griffith, 13 Vesey, 576.

(2) Smyth ex parte, 1 Swa. 352, the opinion of Lord Kenyon in the note; Doe dem. Collins v. Weller, 7 T. R. 480,

note.

(j) Campbell v. Leach, 2 Ambl. 740; 2 Sugd. on Powers, 644; Donnell v. Church, 4 Irish Eq. Rep. 630.

(k) Smyth, ex parte, I Swa. 354.

(1) Ward v. Hartpole, 3 Bligh's Parl. Ca. 470; Doe dem. Collins v. Weller, 7 T. R. 480; 2 Sugd. on Powers, 149.