and so long as the reversion continue in the donor or lessor, so long do the rents and services, which are incident to the reversion, belong to the donor or lessor. Neither can the donor or lessor be put out of his reversion, unless the donce or lessee be put out of their possession; and if the donee or lessee be put out of their possession, then consequently is the donor or lessor put out of their reversion. But if the donee or lessee make a regress, and regain their estate and possession, thereby do they ipso facto revest the reversion in the donor or lessor. 38 H. 6. 33. Pl. Com. 103. Lib. 5. fol. 11, 12. 25. 19 E. 2. Briefe 845. 4 E. 3. Briefe 713. (Post, 349. 11 Rep. 50 b.) *325 a. And here is to be observed, that where a man is seised of a manor, and maketh a gift in tail, or lease for life, &c. of parcel of the demesne of the manor, (x) the reversion is part (2) 18 Ass. p. 2. of the manor, and by the grant of the manor the reversion Fulmerstone's case, shall pass with the attornment of the donee or lessee. But if the lord make a gift in tail, or a lease for life, of the whole manor, excepting Black Acre, parcel of the demesnes of the manor, and after he granteth away his manor; Black Acre shall not pass; because, during the estate tail, or lease for *life, it is severed from the manor. And so note a diversity, that a reversion of part may be parcel of a manor in possession, but a part in possession cannot be parcel of the reversion of a manor expectant upon any estate of freehold. But if a man make a lease for years of a manor, excepting Black Acre, and after granteth away the manor, Black Acre shall pass, because the freehold being entire, it remaineth parcel of the manor, and one præcipe of the whole manor shall But otherwise it is, in case of the gift in tail or lease for life excepting any part, there must be several writs of præcipe, because the freehold is several (9 1). serve. some act of his own; and the payment of the tenant was but a wrongful act, and did not give away his lord's right. So, in the case of the rentcharge, where the tenant of the land paid it to another, this wrongful payment did not devest the owner of his right; it was therefore a payment by the tenant in his own wrong, and it still remained in arrear to the owner. Gilb. Ten. 104.-[Ed.] (Q1) With respect to the conveyance by grant, it may be further observed, that, though the proper and technical words of a grant are dedi et concessi, hath given and granted; yet any other words that shew the intention of the parties will have the same effect. Ante, 147 a. vol. 1. p. 459, 460. Holmes v. Sellers, 3 Lev. 305. 2 Sand. Uscs, 39. Every person who has a present estate or interest in lands, in remainder or reversion, or who has any incorporeal hereditament, such as an advowson, a rent, common, &c. may convey it away by grant. But a bare right or possibility cannot be granted, ante, 214 a. p. 85. Shep. Touch. 240 : VOL. II. D D neither can a person grant or charge that which he has not; and therefore, if a man grants a rent-charge out of the manor of Dale, when, in truth, he has nothing in the manor, and afterwards purchases it, he shall hold it discharged from this grant, Perk. s. 65. Shep. Touch. 243; unless, perhaps, the grant be by fine executory. Shep. Touch. 238. As to the operation of a grant, it is materially different from that of a feoffment, for, we have seen, a feoffment operates immediately on the possession, without any regard to the estate or interest of the feoffor, ante, p. 354. n. (B 1): but a grant only operates on the estate of the grantor, and will pass no more than what the grantor is by law enabled to convey. This rule probably arose from the circumstance, that a grant being always made by deed; the estate of the grantor might be known by inspection of the deed, and if the estate granted was greater than the estate which the grantor had, it was merely void, and the grant only passed as much as the grantor could really give. 4 Cru. Dig. 113. Gilb. Ten. 122. A grant cannot, in any case, operate as a discontinuance. If, therefore, a tenant in tail of a rent, advowson, common, or of a remainder or reversion, expectant on an estate of freehold, makes a grant in fee, this is no discontinuance of the estate tail, for nothing passes but during the life of the tenant in tail, which is not unlawful. Post, 3. 627. 327 b. 2 Sand. Uses, 41. And it follows, from the same princi ple, that a grant can in no instance operate as a forfeiture. Post, 251 b. -[Ed.] CHAP. XXXVIII. SAME SUBJECT. OF LEASES. LESSA and lease (A) is (a) derived of the Saxon word leapum, or leasum, for that the lessee cometh in by lawful means; (b) and dimittere is in French laysser, to depart with or forego. (A) A lease is a contract for the possession and profits of lands and tenements on the one side, and a recompence of rent or other income on the other; or else it is a conveyance of lands and tenements to a person for life or years, or at will, in consideration of a return of rent or other recompence. 4 Cru. Dig. 115. 4 Bac. Abr. 1. tit. Leases. 2 Bl. Com. 317. Sheph. Touch. c. 14. Although, as Lord Coke presently observes, the words" demise, lease, and to farm let," are the proper technical expressions to constitute a lease; yet any other words which sufficiently shew the intention of the parties, that the one shall divest himself of the possession, and the other come into it for a certain time, whether they run in the form of a licence, covenant, or agreement, are of themselves sufficient, and will, in construction of law, amount to a lease. 4 Bac. Abr. 160, 161. Roe, d. Jackson v. Ashburner, 5 T. R. 163. Barry v. Nugent, 5 T. R. 165. n. On the other hand, although the most proper words of leasing are made use of, yet if, upon the whole deed, there appears no such intent, but that it is only preparatory and relative to a future lease, the law will rather do violence to the words, than break through the intent of the parties, by construing that to be a present lease, which was only intended by the parties as an article or agreement for a lease. Idem. Et vid. Goodtitle, d. Estwick v. Way, 1 T. R. 735. Doe v. Clare, 2 T. R. 739. Tempest v. Rawling, 13 East, 18. Doe, d. Broomfield v. Smith, 6 East, 530. An instrument containing words of present demise, however, will operate as a lease, if such appears to be the intention of the parties, though it contain a clause for a future lease or leases: as where one "thereby agrees to let and the other agrees to take" land for sixty-one years, at a certain rent for building, and the tenant agreed to lay out 20001. within four years, in building five or more houses; and when five houses were covered in, the landlord agreed to grant a lease or leases (which might be for the more convenient underletting or assignment of the leases); but "this agreement was to be considered binding till one fully prepared could be produced." Poole v. Bentley, 12 East, 168. Et vid. Doe, d. Walker v. Groves, 15 East, 244. And whether an instrument shall be a lease, or only an agreement for a lease, depends on the intention of the parties, as it is to be collected from the instrument. Morgan, d. Dowding v. Bissell, 3 Taunt. 65. Leases are distinguished into, 1st. Leases of the possession; 2dly. Leases of the reversion; Sdly. Leases by way of reversionary interest. 1st. Leases of the possession, are to confer a present right of present enjoyment, at least by the intention of the parties; but a lease at common law, of lands in possession, passes no estate till entry. In the meantime, the lessee has no term or estate; he has merely an interesse termini. Ante, 46 b. vol. 1. p. 630. Post 270 a. This interesse termini may be assigned even without deed, or released, ante, 85 a. vol. 1. p. 318, 319. Plowd. 150.; but it cannot be surrendered, nor does it, while executory, admit of enlargement by release. Post, 270 a. Though, at the common law, a lessee had no term until actual entry, a bargainee of the use for years, has an actual estate, on the execution of the bargain and sale; and this is the reason that the estate of a bargainee for years may be enlarged by release, without an actual entry. Barker v. Keate, 2 Mod. 249. Mallorie's case, 5 Co. 113. Post, Chap. 40. Of Releases. 43 b. Derivation of the word tease. («) Mirror, cap. 2. sect. 17. Bract lib. 2. 45 b. (c) Words to make a lease be, demise, grant, to farm let, 1. Circumstances requi- betake; and whatsoever word amounteth to a grant, may serve site or incident to a lease. (e) Vid. Sect. 531. For the same reason it may be surrendered. 2dly. Leases of the reversion, are leases granted by a person who has a reversion, and they pass a portion of that reversion as a rested interest. They confer a right to the reserved rent and services, and create the relation of landlord and tenant between the first lessee and the second lessee. Such leases of a part of the reversion cannot be granted without deed; nor, at common law, without attornment. 3dly. A reversionary lease, is a lease to commence on a future day, or on an event, and is to operate in the meantime by way or in the nature of an interesse termini. It may be granted with or with out deed; and it will be good, though granted without deed, by a person who has merely a reversion or remainder: but when granted without deed, it never can confer a right to the possession, till the possession is vacant; nor can it confer a right to the rents or services in the meantime. 2 Prest. Conv. 145, 146. 149. On a lease for life, as it goes to the seisin as well as to the possession, livery must be made, as on a feoffment: unless it be of a reversion or remainder, or a thing lying in grant; or unless it be created under a power, or by a lease and release, which are equivalent to livery. 2 Prest. Conv. 147. But as a lease for years passes only the right of possession, as contradistinguished from the seisin, it is completed by the entry of the lessee. A lease for years (with the exception of leases of incorporeal hereditaments, which must universally be created by deed, ante, 85 a. vol. 1. p. 318, 319.) is still good by parol, so as it does not exceed three years from the time of making; but if it be for a longer term, or for an estate of freehold, it must be by deed or note in writing, signed according to the statute of frands. St. 29 Car. 2. c. 3. But a parol agreement to grant a lease, though void by the Statute of Frauds, if not reduced into writing (Hollis v. Whiteing, 1 Vern. 151.), will be enforced in equity, where there is a substantial part performance, though on the part of the plaintiff in equity only; and a specific performance will be decreed. Coleman v. Upcott, 5 Vin. Abr. 527. pl. 17. Walker v. Walker, 2 Atk. 100. So where signed by one party only. Owen v. Daris, 1 Ves. 83. Et vid. cases cited in n. (R), ibid. Seton v. Slade, 7 Ves. 265. But acts merely introductory or ancillary to an agreement, will not be considered as a part performance, although attended with expence. See Clerk v. Wright, 1 Atk. 12. Whitbread v. Brockhurst, 1 Bro. C. C. 412. Cole v. White, 1 Bro. C. C. 409. cited Whitchurch v. Beris, 2 Bro. C. C. 559. Whaleg v. Bugenal, 6 Bro. P. C. 645. Cook v. Tombs, 2 Anstr. 420. Cooth v. Jackson, 16 Ves. 12. Redding v. Wilkes, 3 Bro. C. C. 400. But if possession be delivered, it will be considered as a part performance, Butcher v. Stapeley, 1 Vern. 363. Pyke v. Williams, 2 Vern. 452. Lockey v. Lockey, Pree. Ch. 518. Earl of Aylesford's case, 2 Stra. 783. Binsted v. Coleman, Bunb. 65. Barrett v. Gomeserra, Bunb. 94. Lacon v. Mersens, 3 Atk. 1. Wills v. Stradling, 3 Ves. 378. Bowers v. Cator, 4 Ves. 91. Denton v. Stewart, 1 Tr. Eq. 175. n. 1; especially if he expend money in building or improving according to the agreement. Foxcraft v. Lister, 2 Vern. 456. Gilb. Eq. Rep. 4. Colles P. C. 108, Floyd v. Buckland, 2 Freem. 268. Mortimer v. Orchard, 2 Ves. jun. 245. 3 Burr. 1919. Possession, however, must be delivered in part performance; for if the purchaser obtain it wrongfully, it will not avail him. Cole v. White, 1 Bro. C. C. 409. And a possession, which can be referred to a title distinct from the agreement, will not take a case out of the statute. Therefore possession by a tenant cannot be deemed a part performance, see Wills v. Stradling, 3 Ves. 573. Smith v. Turner, Prec. Ch. 561. Sugd. Vend. 3d edit. 85. And the acceptance of a trifling earnest, or a bare payment of money on account, though it will make a personal contract good by the statute, is not enough where the contract concerns lands. Alsopp v. Paiton, 1 Vern. 472. Se good v. Meale, Prec. Ch. 560. Main v. Milboun, 4 Ves. 720, Coles v. Trecothick, 9 Ves. 234. And it seems, that even the payment of a considerable som will not be a part performance. See Clinan v. Cooke, 1 Sch. & Lef. 22. O'Herliby v. Hedges, Ibid. 123. Et vid. Butcher v. Butcher, 9 Ves. 382. 1 Ca. & Opin. 136. Sugd. Vend. 91, 92. It may be further observed, that although an agreement be in part performed, yet the court may not be able to ascertain the terms, and then it seems the case will not be taken out of the statute. See Symondson v. Tweed, Prec. Ch. 74. Gilb. Eq. Rep. 55. 270. e. to make a lease. In the king's case (d) this word committo (d) Register F. N. B. doth amount sometime to a grant, as when he saith commisimus W. de B. officium seneschalsiæ, &c. quamdiu nobis placuerit, and by that word also he may make a lease: and (e) therefore à fortiori a common person by that word (e) 8 H. 6. 34. may do the same. 46 a. It must have a certain sons. And albeit (as hath been said) a lease for years must have a certain beginning and a certain end (B), yet the continuance beginning and end. thereof may be uncertain, for the same may cease and revive But, in particular cases, it may cease and recive again in divers cases (1). As if tenant in tail make a lease again in several perfor years, reserving ax shillings, and after take a wife, and die without issue, now, as to him in the reversion, the lease is merely void but if he endow the wife of tenant in tail of the land, (as she may be though the estate tail be deter(1) Vid. 7 Rep. the Earl of Bedford's case." Hal. MSS.-[Hargr. n. 6. 46 a.] Forster v. Hale, 3 Ves. 712,713. But the mere circumstance of the terms not appearing, or being controverted by the parties, will not of itself deter the court from taking the best measures to ascertain the real terms. See Mortimer v. Orchard, supra. Anon. 5 Vin. Abr. 523. pl. 40. Anon. Ibid. 522. pl. 38. Anon. 6 Ves. 470. Aston v. Bower, 3 Bro. C. C. 149. Clinan v. Cooke, supra. Boardman v. Mostyn, 6 Ves. 467. Sugd. Vend. 93-97. It is also observable, that where a parolagreement is so far executed as to entitle either of the parties to require a specific execution of it, it will be binding on the representatives of the other party, in case of his death, to the same extent as he himself was bound by it. Ibid. Et vid. Shannon v. Bradstreet, 1 Sch. & Lef. 5%. Note also, that a licence to be exercised upon land for twenty-one years, is grantable without deed, and without writing. Tayler v. Waters, 7 Taunt, 374. With respect to the reservation of rent in leases for lives or years, it may be observed, that, as the rent will follow the reversion, the best way is to reserve it generally, as "yielding and paying therefore yearly, during the said term, the sum, &c." Gilb. Rents, 64. 2 Prest. Conv. 184, 185. And a covenant should be inserted for payment of the rent; as the lease, if once assigned, might be afterwards assigned to a beggar. Pitcher v. Torey, Salk. 81. S. C. 4 Mod. 71. Taylor v. Shun, 1 Bos. & P. 21. A proviso for re-entry on non-payment of rent, should also be inserted, to bring the lessor within the protection of the stat. 4 Geo. 2. c. 28. And as a lessee may as-ign his whole interest, or underlet for a part of his term; if it be intended that the lessee shall not do so, an express covenant should be inserted to restrain him. But under an agreement for a lease with usual covenants, the lessor is not entitled to a covenant against assigning or underletting without licence. Henderson v. Hay, 3 Bro. C C. 652. Jones v. Jones, 12 Ves. 186. Vere v. Loveden, Ibid. 179. Church v. Brown, 15 Ves. 258. Browne v. Raban, 15 Ves. 530. On the other hand, a lessor is not obliged to renew the lease (unless by custom); and therefore if it be intended that the lessor shall be compelled to do so, a covenant for that purpose should be inserted. But if the lessor covenant to renew under "the like covenants," it will not, it seems, extend to a further covenant for renewal. Tritton v. Foote, 2 Bro. C. C. 636. Iggulden v. May, 9 Ves. 325. S. C. 7 East, 237. Dowling v. Mill, 1 Mad. Ch. 541. And, as a lessee for years is compellable to repair, if it be not intended that he should do so, a covenant from the lessor to repair should be also inserted. Watk. Conv. 105.-[Ed.] (B) As to the doctrine, that a lease must have a certain beginning and a certain end, see ante, 45 b. vol. 1. p. 362, 633. and the notes there; 2 Prest. Conv. 158. 181.; and infra, n. (F).—[Ed.] (7 Co. 9 a. 1 Rol. Abr. 842.) |