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407

CHAPTER III.

OF LEASES.

tion of;

A LEASE is defined to be a conveyance of any Lease, definilands, tenements, or hereditaments, (usually in consideration of rent or other annual recompense), made for life, for years, or at will, but always for a less time than the lessor hath in the premises (a). The essential characteristic is, that the interest granted by the lessor should be less than the interest he has himself, for, if he part with his whole interest, the instrument becomes an assignment or a conveyance, instead of being a lease. Considering the transaction in a different point of view, a lease for years is defined to be a contract between lessor and lessee for the possession and profits of lands or other hereditaments on the one side, and a recompense for rent, or other income, on the other (b); and hence the rule (c), that any words which indicate that one party is to give, and the other to take, possession, primá facie constitute a lease. Leases for lives are now seldom granted in England, except by bishops and certain other corporations, and by public trustees;

(a) 2 Bl. Comm. 317; Touchst. p. 266.

ch. xiv.

(b) Bac. Abr. art. Leases.
(c) Infra, vol. iv. p. 4, n. (c).

-usually contains no recitals.

Statement of consideration

in.

but leases for years form a large part of the subsisting interests in real estate.

A lease ought, on principle, to contain precisely the same recitals as to title as a purchase-deed of the same property, and an appropriate introductory recital; but, in practice, a lease is generally made without recitals. This arises partly from the fact that a lessor does not shew his title to the lessee (a), and partly from the implied supposition, that the lessor has the absolute ownership of, or power over, the property to be demised (b). Occasionally, however, recitals are inserted in a lease, as in the case of an agreement for the lease having been previously entered into, and of mesne transactions having taken place on the footing of such agreement (c); and sometimes, in under-leases, the original lease is recited, where the covenants or clauses of the underlease are framed by reference to those of the original lease.

The usual and, in most cases, the only considerations stated in a lease are, the rent reserved, and the covenants entered into by the lessee (d). If, however, the lease be a building or repairing lease, the monies expended, or to be expended, by the lessee are mentioned as the principal consideration (e); and if a premium or fine be paid, the payment of it is stated

(a) Infra, vol. iv. p. 16, n. (c).
(b) See infra, vol. iii. p. 5.
(c) See infra, vol. iv. Prec.
iii. p. 26.

(d) Infra, vol. iv. p. 28, n. (b), and the other precedents of leases.

(e) Infra, vol. iv. p. 28.

and acknowledged in the same manner as the payment of the purchase-money in a conveyance.

words-parcels,

The ordinary operative words of leases are "de- Operative mise, lease, and to farm let" (a); but the words &c. "grant" and "bargain and sell" are also frequently used. A lease for lives must of course be made by such an assurance as is capable of passing a freehold estate (b). The parcels in leases are described as in purchase-deeds (c), but the general words are usually more concise (d). Leases generally contain exceptions, as of timber and the like, the law respecting which is noticed in a different part of the work (e).

The habendums of leases do not call for any par- Habendum. ticular observation; the subject of habendums generally is discussed in a previous chapter (g), and some observations as to the mode of framing them for leases will be found in volume iv. (h).

The habendum is immediately followed by the Reddendum. reddendum, or reservation of rent. A reddendum or reservation is not peculiar to a lease, although at the present day it is seldom found in any other deed. It is defined to be "a clause of a deed whereby the grantor doth reserve some new thing to himself out of that which he granted before" (i). It differs from an exception, in that a reservation is a thing not in

(a) Infra, vol. iv. p. 28, n. (b). (b) Supra, ch. i. p. 385. (c) Supra, b. ii. ch. vi. p. 339. (d) Infra, vol. iv. p. 29, n. (e). (e) See infra, vol. iv. p. 44, n. (a), p. 45, n. (b), and the au

thorities there referred to; see
too, supra, p. 344.

(g) Supra, b. ii. ch. vii. p. 345.
(h) Page 29, n. (d).

(i) Touchst. 80; 2 Bl. Comm.

299.

esse before, but newly created out of the thing granted or demised; while an exception is a thing in esse before, and part of the thing granted or demised (a). In the case of mines, however, in which the rent or royalty reserved is sometimes a proportion of the ore gotten, it seems doubtful whether such proportion of the ore is a reservation or an exception; but the result of the cases appears to be, that if the ore is reserved, it is an exception, but if the manufactured metal, a proper reservation (b). A reddendum must be of a thing whereto the grantor may have resort to distrain, i. e. it must be reserved out of corporeal hereditaments; and therefore the reservation of a rent, reserved out of incorporeal hereditaments alone, will be a void reservation (c). A rent, however, so reserved is void only as a reservation, for it may be recovered in an action of debt, if the demise be made by deed (d), or of course in an action of covenant, if the lessee have entered into a covenant for payment of the rent. If a rent be reserved on a demise by deed of corporeal hereditaments together with incorporeal hereditaments or personal chattels, the rent will be held to

(a) Co. Litt. 47. a.; infra, vol. iv. p. 44, n. (a). See, however, Co. Litt. 143. a., n. (1).

(b) Campbell v. Leach, Amb. 740; Basset v. Basset, Id. 843; Buckley v. Kenyon, 10 East, 139; The King v. The Earl of

Pomfret, 5 Mau. & Sel. 139;
The King v. The Inhabitants of

St. Austell, 5 B.& Ald. 693. See,
too, infra, vol. iv. p. 138, n.; and
Denys v. Shuckburgh, 4 You. &
Coll. 42; The Queen v. Todd, 4
Per. & Dav. 335; The Queen v.
Crease, 3 Per. & Dav. 434.

(c) Touchst. 80; 4 Cru. Dig.
by White, 275.
(d) Ib.

be issuing solely out of the corporeal hereditaments, and they may be distrained on accordingly (a); but if the demise be of lands and incorporeal hereditaments, by an instrument not under seal, no distress can be made, because there is no valid demise at all of the incorporeal hereditaments, and no distinct rent reserved for the lands (b). The rent or other thing reserved must either be reserved generally, or to the grantor and his heirs; or, in the case of a lease by a person having a chattel estate only, to the grantor, his executors and administrators (c). A reservation to a stranger is bad, although in most cases the rent reserved to a wrong person will follow the reversion (d). The rent reserved on a lease is usually made payable half-yearly or quarterly, but this depends wholly on the contract, except that in leases under powers, which prescribe that the rent shall be made payable at any particular times, the terms of the powers must be strictly complied with (e). If rent be reserved generally, it is payable at the end of the year (g). Several rents may be, and in practice frequently are, reserved upon one grant (h), of which the precedents of leases in the fourth volume

(a) Farewell v. Dickenson, 6 See, too, Id. p. 31, n. (ƒ). Barn. & Cress. 251. (e) 2 Sugd. Pow. (6th edit.),

(b) Gardiner v. Williamson, 2 B. & Ad. 336. See, too, The Queen v. The Inhabitants of Hockworthy, 2 Nev. & Per. 383. (c) Toucht. 80; Lit. sect.

346.

439.

(g) See the cases cited infra, vol. iv. p. 47, n. (c); and the remarks on this subject in the note referred to.

(h) Touchst. 80; 4 Cru. Dig. (d) Infra, vol. iv. p. 73, n. (b). by White, 276.

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