Baggot v. Pomery v. Partington, 3 Term R. 665. ante, § 14. appear from the nature of the power, compared with that of the property, to have been the intention of the parties that it should be special. 19. A power was given to a tenant for life, to make a lease or leases for three lives or 21 years, of all or any part of the premises in the indenture comprised, at such yearly rents, or more, as the same were then let at. Lady Baggot, who was the tenant for life, married Sir A. Oughton, and made a lease to him of the capital messuage for 21 years; but reserved no rent. It was resolved, that this lease was void; and the judgement is said to have been affirmed in the House of Lords. 20. A person devised his estate in strict settlement, and gave to all the tenants for life, a power to grant, demise, and lease all or any of the said manors, parts of manors, messuages, lands, tenements, and hereditaments; so as the usual rents and other yearly payments, dues, reservations, and heriots, were from time to time reserved, and made due and payable. A tenant for life made a lease of certain tithes, which had never been leased before; and the question was, whether that lease was good. Lord Kenyon said, when he first read over the case, he entertained no doubt upon the question; but when Cumberford's case was stated at the bar, he wished to see on what ground the Court proceeded in determining it. For if certain legal ideas were annexed to certain technical words, as in the case of limitations of real estates, it would be extremely dangerous to depart from the sense given to them by the law, however apparent the intention of the parties might be to the contrary. Now, on looking into that case, the rule would be found to be clear and undoubted; but the counsel who argued Goodtitle v. Funucan, in stating Cumberford's case, omitted ante, the most important words; namely, that the intention of the parties was to govern. If that was the rule, and the Judges, in construing, the particular words of different powers, had appeared to make contrary decisions at different times, it was not that they had denied the general rule, but because some of them had erred in the application of the general rule to the particular case before them; for in all the cases they professed to determine upon the intention of the parties. It was not necessary to go into all the cases, because they were all arranged in Douglas, and the due effect given to them by Lord Mansfield; from all which he at last extracts the general rule, that the construction of these powers must be governed by the intention of the parties; and in applying that rule to the case of Baggot v. Oughton, he said—“ In a family settlement of an estate, consisting of some ground always occupied together with the seat, and of lands let to tenants, upon rents reserved, the qualification annexed to the power of leasing, that the ancient rent must be reserved, manifestly excluded the mansion-house, and lands about it, never let. No man could intend to authorize a tenant for life to deprive the representative of the family of the use of the mansion-house. The words in such a case show, that the power is meant to extend only to what has been usually let; by that means the heir enjoys all the premises in the settlement, just as they were held by his ancestor, the tenant for life; he has the occupation of what was always occupied, and the rent of what was always let." Now, the whole of this reasoning applied most pointedly to the case before the Court; these tithes never had been let, but had always been occupied by VOL. IV. P As to the the possessor of the estate; therefore he did not think that the case of Baggot v. Oughton could be distinguished from this in principle. This was the broad ground on which he was of opinion, that the lease in question was not a valid one. The other Judges concurred; and Mr. Justice Buller observed, that in the case of Goodtitle v. Funucan, the Court relied on the words at the end of the power—“ or proportionably for any part thereof," though no notice was taken of it in the printed report. For those words showed that it was the intention of the parties that the quantum of the rent, and not any particular part of the premises included in the settlement, was to guide the person in executing the power. But in this case the devisor did not intend that any part of the estate should be let, but that which had been usually demised before. 21. The third restriction usually inserted in powers the Lease is of leasing, relates to the time when the lease is to tocommence. commence; whether immediately, or at a future period; whether in possession, or in reversion. Com. R. 39. Lord Holt has explained what was the nature of a lease in reversion thus-" In the most ample sense, that is said to be a lease in reversion, which hath its commencement at a future day; and then it is opposed to a lease in possession; for every lease that is not a lease in possession, in this sense is said to be a lease in reversion." In a more confined sense of the term, a lease in reversion signifies a lease to begin from the determination of a lease in being; in which sense all leases, where there is a particular estate outstanding, are leases in reversion. And so is the term reversion to be taken, where mention is generally made of leases in reversion, under a power; for otherwise a tenant for life, with power to make leases in reversion, might make a lease to commence fifty years after his death. Possession. 22. Where a power is given indefinitely to make A general Power only leases, without mentioning the time when they are to authorizes commence, it shall be taken strictly against the donee Leases in of the power; consequently be construed so as only to authorize leases in possession, and not leases in reversion. 23. Henry Earl of Suffolk was seised of an estate Suffolk v. Wroth, under an act of parliament, to the use of himself for Cro. Eliz. 5. life, remainder to his wife for life, &c.; with a proviso, 6 Rep. 33 a. that it should be lawful for the earl to make leases for 21 years. The earl made a lease for 21 years, and before the end of it, he made another lease to the lessee for 21 years, dated the 30th March, to commence at Michaelmas following. It was adjudged a void lease, because for the time it was a lease in reversion; and if he might make a lease to commence at the Michaelmas following, he might make it to commence twenty years after, which would destroy the effect of the settlement. Watton, 24. It was formerly held, that a lease made to Doe v. commence from the date, or the day of the date Cowp. 189. thereof, was a lease in reversion: but this doctrine has been altered by the following determination. 25. A tenant for life, with power to make leases for 21 years, in possession, and not in reversion, made a lease to his daughter, to hold from the day of the date of the indenture for 21 years. Lord Mansfield, after stating all the authorities on this subject, delivered his opinion that from might, in the vulgar sense, and even in strict propriety of language, mean either inclusive or exclusive: that the parties necessarily understood, and used it in that sense which made the deed effectual. That eourts of justice were to con Pugh v. D. of Leeds, Cowp. 714. Unless the Estate is reversionary. Mar. of Northampton's Case, Dyer, 357. strue the words of parties so as to effectuate their deeds, and not to destroy them; more especially when the words themselves abstractedly might admit of either meaning. It was therefore adjudged, that the lease should be deemed a lease in possession, and therefore good, being warranted by the power. 26. Where lands are leased out for lives, or years, and are afterwards limited in strict settlement, with a power to the tenant for life to make leases generally, he may make a reversionary lease, to commence upon the determination of the subsisting lease; for otherwise the tenant for life might never have an opportunity of exercising his power. rent. 27. Husband and wife made a lease of part of the wife's estate for 21 years, rendering the accustomed Afterwards it was enacted by parliament, that the husband should have the lands in lease and the rent for his life, remainder to his wife; and that all leases and grants thereof made and to be made, by the husband by indenture for three lives or 21 years, reserving the accustomed rent, should be good. The husband, after eight years of the lease expired, (reciting the former lease,) demised the land for 21 years next after the end of the first 21 years, reserving the usual rent. It was held by Manwood and Dyer, that the lease was good; but Mounson was of a different opinion. And in a note Cro. Ja. 349. it is said that Mounson's was the better opinion, But the validity of such a lease was established in the following modern case. Fox v. Prickwood, Coventry v. 28. A person being tenant for life of the reverCoventry, Com. R.312, sion of lands, which were leased out for lives; with a power to make leases of any part thereof for 21 years; or one, two, or three lives; so as there were not in any part of the premises so leased, at any one |