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and covenanted at any time during his life to renew the interest for twenty-one years; upon a bill for specific(g) performance of the covenant, Lord Redesdale held, it was unconscionable to require the tenant for life to execute such a renewed lease, whatever might be the increased value of the property at the time of granting it, because it would bring an incumbrance on the estate of the remainder-man, and would put him to litigation to get rid of it; and as to the tenant for life himself, it would be compelling him to lay the foundation of an action for damages, if he should die before the renewed term expired; and that a lessee, who was aware of the existence of the leasing power when the covenant was entered into, has no claim(h) to the assistance of a Court of Equity in enforcing even such a lease as the tenant for life was competent to grant.

It is, however, a recognized principle of equity, that where a person contracts to grant a certain interest, which it afterwards(i) appears he cannot carry into execution to the extent which he agreed to do, yet the agreement shall be rendered available so far as the grantor's interest will permit; as where a party contracts to make a lease of lands, and it afterwards turns out he is not entitled to a part of the property intended to be demised, then the contract may be enforced against the grantor for the part of which he is owner, but such jurisdiction will not be exercised where the party(j) seeking to enforce the agreement knew, at the time, of the limited interest of the owner, or where any attempt is made to commit a fraud on the power, or where the contract was obtained(k) through misrepresentation, or its execution would be unreasonable, or prejudicial to persons interested in the property, though not parties to the agreement.

81. If a person having a partial interest in an estate, agree to grant a lease, which his interest in the property will not enable him to carry into effect, and then joins with the remainder-man in selling the inheritance to a purchaser with notice of the agreement, such purchaser will be compelled to make good the lease.

An estate being limited to a father for life, with remainder over in strict settlement, reserving() a power to make leases for lives, or years,

(g) Harnett v. Yielding, 2 Sch. & Lef. 549; and see Doe dem. Bromley v. Bettison, 12 East, 305; Corry v. Corry, Wallis, 278.

(h) Harnett v. Yielding, 2 Sch. & Lef. 549-560; Lawrenson v. Butler, 1 Sch. & Lef. 13; Ellard v. Ld. Landaff, 1 Ball & B. 251; O'Rourke v. Percival,

G

2 Ball & B. 63, 64.

(i) O'Rourke v. Percival, 2 Ball & B. 64; 1 Sugden's Vendors, 495.

(j) Thomas v. Deering, 1 Keen. 729– 747.

(k) Ld. Clermont v. Tasburgh, 1 Jac. & W. 112.

(1) Taylor v. Stibbert, 2 Vesey, Jun.

and authorizing the father and son to appoint new uses for the purpose of sale the father alone made a lease of part of the premises for lives renewable for ever, and both father and son afterwards joined in selling the estate to a purchaser, who had full notice of the lease, and it was determined that the purchaser was bound by the covenant for renewal. The principle on which this decision rests is(m), that the purchaser who bought with notice of the lease, and obtained an estate which enabled him specifically to execute the covenant for renewal, was bound to do so, in order to exonerate the tenant for life from an action for damages in not performing his covenant for the renewal of the lease.

So, where a lease is procured from tenant for life, which is not warranted by his leasing power, and the lessor covenants for quiet enjoyment, the lessee has a right in equity to insist that his defeasible lease has been confirmed(n) by a dealing between the tenant for life and remainder-man, in consideration of which the tenant for life gave up to the remainder-man a portion of the property constituting the fund for paying any damages incurred by a breach of the covenant for quiet enjoyment.

82. If an estate be sold, subject to existing leases, and the vendor then discover that the leases which had been granted were fraudulently or unduly obtained, he is entitled to have(o) such leases set aside, and to hold the lands during their continuance, on payment to the purchaser of the rents reserved, and performance of the covenants contained in such leases.

Where a lease is made by tenant for life, in violation of his leasing power, at an inadequate rent, and the reversion subject to the lease is then sold, under a power in the same settlement, at a price(p) in proportion to the rent reserved, the remainder-man may set aside such lease, or the lessee will be decreed a trustee for his benefit; but the inadequacy of the rent must be apparent, for a purchaser cannot be required to ascertain that the best rent was reserved on every lease affecting the lands.

83. A lease for lives renewable for ever, being made under a power

437; Crofton v. Ormsby, 2 Sch. & Lef. 585-599; Lewis v. Swift, 1 Jones's Ex. Rep. 430; 2 Sugd. on Powers, 394.

(m) 2 Sugd. on Powers, 396; 3 Sugd. Vendors, 442.

(n) Beere v. Cavendish, 5 Irish Eq. Rep. 472; Gray v. Knox, 5 Irish Eq. Rep. 465; Stoughton v. Crosbie, 5 Irish Eq. Rep. 451; Steele v. Mitchell, 3

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to demise to that extent, although the reversioner(q) accepted the reserved rent for more than fifteen years after he became seised, it was decided that such acceptance of the rent did not amount to a confirmation so as to bind him specifically to execute the covenant for renewal, where the original lease was granted in a manner not conformable to the requisites of the power.

84. By the Statute(r), 11 Geo. IV. & 1 Will. IV. c. 65, it is enacted, that where any person, being a lunatic, shall be seised or possessed of any land either for life or some other estate, with power of granting leases and taking fines, reserving small rents on such leases for one, two, or three lives, in possession or reversion, or for years determinable upon lives, or for years absolutely, such power shall and may be executed by the committee of the estate of such persons, under the direction and order of the Lord Chancellor.

And by the Irish Bankrupt Act(s), 6 & 7 Will. IV. c. 14, s. 91, all powers vested in any bankrupt, which he might legally execute for his own benefit, may be executed by the assignees for the benefit of the creditors, in such manner as the bankrupt might have executed the same; and a similar provision(t) is inserted in the Irish Insolvent Act.

85. Several Irish Statutes have been passed for the purpose of enabling (u) tenants for life, with immediate remainders limited to their issue, to grant leases of parts of the settled estates, binding on the persons in remainder, for the encouragement of mining concerns, the improvement of bogs, and other useful objects. All these Statutes require that the best rent shall be reserved for the quantity of land allowed to be demised, and that the lessee and those deriving from him sball effectually carry on the specified works during the continuance of the demise, and shall expend a specified sum of money, within a limited time, in erecting suitable buildings and making improvements on the premises.

(2) Higgins v. Ld. Rosse, 3 Bligh's P. C. 112.

(r) 11 Geo. IV. & 1 Will. IV. c. 65, s. 23, English and Irish.

(8) 6 & 7 Will. IV. c. 14, s. 91, Irish; 6 Geo. IV. c. 16, s. 77, English.

(t) 3 & 4 Vict. c. 107, s. 37, Irish; 1 & 2 Vict. c. 110, s. 49, English.

(u) 10 Geo. I. c. 5, 15 Geo. II. c. 10, 23 Geo. II. c. 9, 46 Geo. III. c. 71, as to mines; 11 & 12 Geo. III. c. 21, for reclaiming bogs; 25 Geo. III. c. 62, s. 12, for erecting corn-mills; 40 Geo. III. c. 90, to encourage cotton manufac

ture.

CHAPTER VI.

OF JOINT-TENANTS, AND TENANTS BY ENTIRETIES.

1. Joint-Tenancy, how created.

2. Unity of Interest, or Duration of

Estate of Joint-Tenants.

3. Unity of Time, or of vesting.
4. Unity of Possession.

5. Right of Survivorship.
6. Severance of Joint Estate.
7. Suspension of Joint Estate.
3. Severance by Joint-Tenants for
Life entitles each to his Share for
his own Life.

9. Effect of Lease for Years by one
Joint-Tenant.

10, Whitlock v. Horton.
11. At common Law, Joint-Tenants
cannot transfer a Contingency, to
arise on the Survivor's Death.
12. Whether Joint-Tenants can, at
common Law, transfer the Right
of Survivorship.

13. Surviving Joint-Tenant not liable
to Charges created by his Com-
panion.

14. Effect of joint Purchases in Equity.

15. No Survivorship in landed Property, whether Freehold or Chattels, bought and used for Mercantile Purposes.

16. Assignment by Joint-Tenants to

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21. Interest of Husband in the Chattels
real of his Wife.

22. Chattels real of Wife vest in her
Husband by Survivorship, without
Administration.
23. Husband, during his Wife's Life,
may alien her contingent or re-
versionary Interest in Chattels
real.

24. Unless such reversionary Estate
could not possibly fall into Pos-
session during the Husband's
Life-time.

25. Underlease by Husband of Chattels real of his Wife.

26. Effect of Mortgage by Husband of "Chattels real of his Wife.

27. Husband cannot dispose by his Will of his Wife's Chattels real.

1. A GRANT, or devise, to two or more persons, to hold to them and their heirs, or for their own lives, or for the lives of any other persons, or for years, or at will, without modifying or restrictive expressions (a), creates a joint-tenancy, and constitutes the owners jointtenants. An estate in joint-tenancy can only arise by act of the parties, either by deed, by will, or by demise, and never by descent, or by act of law.

2. Joint-tenants have one and the same interest accruing by one and the same conveyance, commencing at the same time, and held by the same undivided possession. The duration of the interest of jointtenants must be the same, and of the same nature, as the quantity of

(a) 2 Comm. 180; 2 Cruise's Dig. title Joint-Tenancy, 2 Prest. Abstr. 57;

Watkins, by Morley & Coote, 152; Co.
Litt. 188, A.

estate of one joint-tenant cannot be different from that of his companion': one joint-tenant cannot hold for life, and the other(b) for years one cannot have a freehold, and the other a chattel interest.

Where, however, lands are limited to three persons(c), and to the heirs of one of them, by the same deed or instrument, they are jointtenants for life, though one of them has the inheritance in fee, and upon the death of the person having the fee, the survivor shall hold the entire during his life; but if there be three joint-tenants for life, and the reversion in fee is purchased by, or descends to one of them, the joint-tenancy is destroyed, as to that person, by the accession of the greater estate, and he then becomes a tenant in common of his share along with the other owners.

A grant of an estate to two persons, and the survivor of them, and the heirs of the survivor, does not make them joint-tenants in fee, but merely gives them an estate of freehold during their joint lives, with a contingent remainder(d) in fee to the survivor, because, until the decease of one of the joint-tenants, it must remain uncertain which of them shall be entitled to the fee, which is expressly limited to the survivor. It has however been decided, that a devise to two persons, and the survivor of them (e), their heirs and executors for ever, confers a jointtenancy in fee, and not estates for life, with a contingent remainder in fee to the survivor.

If lands be let to two persons for their lives, and for the life of the survivor(ƒ). such limitation to the survivor only expresses the operation of law, as no greater or different estate is given by the introduction of these words, than would have been implied by law without them.

3. An estate in joint-tenancy under a common-law conveyance, must commence and become vested in all the parties at one and the same time, as well as by one and the same title. Lord Coke observes (g), that in some instances the estate may vest in joint tenants at several times; but Mr. Hargrave considers the distinction(h) merely applicable to interests derived under the Statute of Uses. A joint claim under the same conveyance, on a limitation by way of use, or by executory devise, constitutes a joint-tenancy, though the interest(¿)

(b) Co. Litt. 188, A.

(c) Wiscot's case, 2 Rep. 60, B.; Childs v. Wescot, Cro. Eliz. 470-482, S. C.; Co. Litt. 184, A.

(d) Butler's note 78 to Co. Litt. 191, A.; Fearne's Cont. Rem., by Butler, 357; Watk. on Conv. 153; In the matter of Harrison, an Infant, 3 Anstr. 836; and see 4 & 5 Will. IV. c. 92, Irish, s. 22.

(e) Doe dem. Young v. Sotheron, 2 B. & Adol. 628.

(f) Co. Litt. 191, A.; expressio eorum, quæ tacite insunt nihil operatur. (g) Co. Litt. 188, A.

(h) Hargr. note 72 to Co. Litt. 188, A.; Woodgate v. Unwin, 4 Simons, 129. (1) Earl of Sussex v. Temple, 1 Ld. Raym. 310–312, by Ld. Holt.

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