recoveries, the mortgagor, being tenant in tail, had mortgaged Chap. his estate, and afterwards levied a fine, or suffered a recovery to XXXVII. other uses, it would, nevertheless, have let in the mortgage (d); and since the passing of that statute, the mortgage of a tenant in tail will be also let in by his deed duly inrolled in pursuance of the statute, except as against a bonâ fide purchaser without express notice (e). (iii.) A tenant is not estopped from disputing the title of an unadmitted mortgagee of copyholds, because estoppel will not operate upon an equitable estate (f). Where a lease was made by the mortgagor to which the mortgagee was not a party, but in which the mortgage was recited, and the mortgagor, after assignment, brought an action on the covenant for rent, it was held that the covenants were in gross, and that it might be well averred in the declaration that the plaintiff had no reversion at the time of the demise, and that a plea "that the reversion was in the plaintiffs at the time of the demise, and that before breach the plaintiffs had assigned it to a third person," was bad; as whatever might be the law otherwise, there was no estoppel in the present case, by reason of the disclosure of the facts on the face of the lease (g). assignee of mortgagor Whether indeed, in ordinary cases, where there is nothing on Whether the face of the lease to prevent the estoppel, the assignee of a lessor, who had only an equity of redemption, or had no interest can sue in the premises demised, can maintain an action on the covenant tenants. or distrain against the lessee, or whether the estoppel ceases as between them, is a point on which the cases are not agreed. In the case of Gouldsworth v. Knights (h), the Court of Exchequer held that the assignee had a good title by estoppel against the tenant, and might distrain for the rent, though the case was decided on a different point. But this opinion of the Court is not easily reconcileable with the doctrine laid down in other cases (i). It seems, however, to be settled, that if the reversion by estoppel in the lessor is afterwards fed by a conveyance of the (d) See ante, p. 385. (e) See 3 & 4 Will. IV. c. 74, s. 38. (f) Rayson v. Adcock, 9 Jur. N. S. 800; Doe v. Webber, 3 Bing. N. C. 922. (g) Pargeter v. Harris, 7 Q. B. 708; The Mayor and Burgesses of Poole v. Whitt, 15 M. & W. 571. (h) 11 M. & W. 337. (i) 2 Bing. N. C. 411; Carvick v. Blagrave, 1 B. & B. 531; Doe v. Barton, 11 A. & E. 307. And see the judgment in Pargeter v. Harris, 7 Q. B. 708, and in Webb v. Austin, 8 Sc. N. R. 419. Chap. legal estate, the lease thereupon becomes a legal lease, and an XXXVII. assignee of the lessor is an assignee of the reversion on the lease (iii.) within 32 Hen. VIII. c. 34 (j). Although this doctrine seems to be in direct opposition to the earlier case of Whitton v. Peacock (k), where, on the like principle as that on which the Court of King's Bench decided the first point in Webb v. Russell (1) against the plaintiff, viz., the alteration of the estate in reversion, the Court of Common Pleas decided, that if a lessor having only title by estoppel makes a demise of copyholds, and subsequently takes a surrender of the legal estate, and is admitted, his assignee of the reversion cannot sue the lessee on the covenants in the lease (m). Right of and against assignee of mortgagor. Underlease. Lease of house and furniture. It is provided by statute (n), that when the reversion expectant on a lease shall be surrendered or merged, the estate, which shall for the time being confer as against the tenant under the same lease the next vested right to the same hereditaments, shall, to the extent of preserving such incidents to and obligations on the same reversion as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease (0). Generally the assignee of the mortgagor can sue the tenant, though the lease is subsequent to the mortgage, as the lease operates by way of estoppel (p); but where the lease shows the mortgage there is no estoppel (q). And as against the assignee of the mortgagor, the tenant may show that the assignee could not have a derivative title from the mortgagor, and he would not be concluded from doing so by payment of rent to the assignee under a mistake of facts (r). Where the assignee of the mortgagor acquires the legal estate from the mortgagee, who was not privy to or estopped by the lease, the assignee will not be bound by it (s). An underlease by the mortgagor passes no legal interest (†). ture not forming part of the mortgage, the mortgagee can only recover an apportioned rent (u). Chap. XXXVII. (iii.) iv.-Leases by Mortgagors under Express Powers.-As for- Powers of merly neither the mortgagor nor the mortgagee alone could leasing. make a lease which would be binding on the other (x), it was often thought advisable to enable the mortgagor to grant leases independently of the mortgagee by giving him a power of leasing (operating by way of appointment); and in the case of a lease operating under such a power, it was not material with whom the lessee's covenants were entered into, as the law annexed the benefit of the covenants to the legal reversion (y). According to this view of the legal doctrine, it was needless to impose upon the mortgagor any stringent conditions as to the form of the lease, as if the lease operated under the power, the benefit of the covenants and condition of re-entry as well as the rent were ipso facto annexed to the reversion, and therefore available by the mortgagee, his heirs and assigns; and if the lease did not operate under the power it merely took effect by estoppel as between the lessor and lessee, and did not bind the mortgagee or those claiming under him. The lease was, according to the usual practice, framed so that it might be unmistakeably an exercise of the power (≈). powers of v.-Leases by Mortgagors under Statutory Powers.-As Leasing regards leases made by a mortgagor where the mortgage was mortgagors made on or after the 1st January, 1882, the Conveyancing Act, 1881 (a), enacts as follows: Sect. 18.-"(1.) A mortgagor of land while in possession shall, as against every incumbrancer, have, by virtue of this Act, power to make from time to time any such lease of the mortgaged land, or any part thereof, as is in this section described and authorized. "(2.) A mortgagee of land while in possession shall, as against all prior incumbrancers, if any, and as against the mortgagor, have, by virtue of this Act, power to make from time to time any such lease as aforesaid. and mortgagees in possession since 1st January, 1882. Chap. XXXVII. (v.) "(3.) The leases which this section authorizes are— 66 (i.) An agricultural or occupation lease for any term not exceeding twenty-one years; and (ii.) A building lease for any term not exceeding ninety-nine years. (4.) Every person making a lease under this section may execute and do all assurances and things necessary or proper in that behalf. "(5.) Every such lease shall be made to take effect in possession not later than twelve months after its date. "(6.) Every such lease shall reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken. "(7.) Every such lease shall contain a covenant by the lessee for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified not exceeding thirty days. "(8.) A counterpart of every such lease shall be executed by the lessee and delivered to the lessor, of which execution and delivery the execution of the lease by the lessor shall in favour of the lessee and all persons deriving title under him, be sufficient evidence. (9.) Every such building lease shall be made in consideration of the lessee, or some person by whose direction the lease is granted, having erected, or agreeing to erect, within not more than five years from the date of the lease, buildings, new or additional, or having improved or repaired buildings, or agreeing to improve or repair buildings within that time, or having executed, or agreeing to execute within that time, on the land leased, an improvement for or in connexion with building purposes. "(10.) In any such building lease a peppercorn rent, or a nominal or other rent less than the rent ultimately payable, may be made payable for the first five years, or any less part of the term. "(11.) In case of a lease by the mortgagor, he shall, within one month after making the lease, deliver to the mortgagee, or, where there are more than one, to the mortgagee first in priority, a counterpart of the lease duly executed by the lessee; but the lessee shall not be concerned to see that this provision is complied with. "(12.) A contract to make or accept a lease under this section may be enforced by or against every person on whom the lease if granted would be binding. "(13.) This section applies only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise in writing, and shall have effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained. "(14.) Nothing in this Act shall prevent the mortgage deed from reserving to or conferring on the mortgagor or the mortgagee, or both, any further or other powers of leasing or having reference to leasing; and any further or other powers so reserved or conferred shall be exerciseable, as far as may be, as if they were conferred by this Act, and with all the like incidents, effects, and consequences, unless a contrary intention is expressed in the mortgage deed. "(15.) Nothing in this Act shall be construed to enable a mort Chap. gagor or mortgagee to make a lease for any longer term or on any other conditions than such as could have been granted or imposed XXXVII. by the mortgagor, with the concurrence of all the incumbrancers, if (v.) this Act had not been passed. "(16.) This section applies only in case of a mortgage made after the commencement of this Act; but the provisions thereof, or any of them, may, by agreement in writing made after the commencement of this Act, between mortgagor and mortgagee, be applied to a mortgage made before the commencement of this Act, so, nevertheless, that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement. "(17.) The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting, and to an agreement, whether in writing or not, for leasing or letting." sect. 18. This section removes, in cases to which it applies, the dis- Effect of ability which formerly prevented mortgagors in possession from granting leases and entering into and enforcing contracts for leases without the consent of their mortgagees. The conditions annexed to an exercise of this statutory power must be strictly observed, as otherwise the lease will be void, as under the old law, as against the mortgagee (b), and will only operate as between the mortgagor and the lessee by estoppel (c). Land, as defined for the purposes of this Act, unless a Definition of contrary intention appears, includes land of any tenure and land. hereditaments, corporeal or incorporeal, and houses and other buildings, also an undivided share of land (d). A lease by a mortgagor under this section may apparently Lease of confer, so as to bind the mortgagees, rights of light or other easements. easements over adjoining land (e). A lease may also be made, under the section, of an incorporeal hereditament (as, for instance, a right of shooting) if severed before the granting of the lease; and, semble, if not so severed (f). Leases by limited owner of mortgaged Although the above definition of land does not extend to 66 any estate or interest in land," it is conceived that tenants for life and other limited owners who have mortgaged their interests lands. may, without the consent of their mortgagees, grant leases of the settled lands under this section. A tenant for life may, (b) See Yellowly v. Gower, 11 Exch. 274. (c) See ante, p. 702. (d) Sect. 2 (ii). (e) Wilson v. Queen's Club, (1891) 3 Ch. 522. (f) Brown v. Peto, (1900) 2 Q. B. 653, C. A. |