leafe, yet there must be words used which fhew an intention to demife.

Therefore, where a leffee of tithes agreed with the owner Anftr. 413, of lands, for certain collateral confiderations, not to take tithes in kind from the tenants of their lands for twelve years, but to accept a reasonable compofition not exceeding 3 s. 6d. per acre; this was adjudged to be no leafe: for ift, the rent affected to be referved is uncertain; under this agreement it is at the option of the party either to pay tithes in kind, or to tender the reasonable value of the tithes, which may be under 3s. 6d. per acre; 2dly, the owner of the lands, the perfon with whom the agreement. is made, is neither to enjoy any thing nor pay any rent; it cannot, therefore, be a demife to him; the tenants are not parties or privy to the transaction, it cannot therefore be a demife to them. It can, at the utmost, amount to no more than a mere covenant with A. that B. fhall enjoy, and creates no lease to either.

So, where articles were drawn between A. and B. in this manner: Articles agreed upon, &c. Imprimis, A. doth demife fuch a close to B. to have it for forty years, and a rent reserved with a claufe of diftrefs, &c. In witnefs whereof, &c. and afterwards was written on the fame paper a memorandum, that these articles are ordered by counsel of both parties, according to the due form of law : here, because the intent of both parties appeared by that memorandum, and by a leafe actually drawn by counfel, but never fealed, (upon fome difagreement between the parties,) it was ruled by the court, upon evidence in ejectment, that these articles were not a fufficient leafe, and the jury found accordingly.

Bac. Abr. tit.
Leafes (K.)

So, where one made a leafe for life & provifum eft, that Ibid. if the leffee die within fixty years, then his executors and affigns fhould enjoy the land in his right for fo many years. as fhould be behind of the fixty years from the date of the leafe: this was held to be only a covenant, and no leafe; for which divers reafons are affigned in the books; the best however feems to be, that he having in the first part of the deed made a leafe in exprefs and proper words, must be fuppofed to mean fomething lefs in the last part of the deed,

Cro. Jac. 172.

Com. Dig. tit.

which varies fo widely in the form of expreffion, and which has a natural and proper meaning of its own as a covenant, but cannot amount or come up to a leafe, with out violence and force done to the words, as well as the intent of the parties. This feems the more probable, because it is held clearly, that if it had been provided that if the leffor die within fixty years, that then he demised the land to another (who was alfo a party to the deed) for fo many of the fixty years as fhould be then to come, this would be a good leafe; for here he comes into the very fame form of expreffion made use of in the firft part of the deed, which was an actual demife, and therefore must be supposed to mean the fame thing in the latter part too, and confequently fuch words would make it an actual demife.

،،

In one cafe it is faid, that though a grant “ to have and to hold" land for years be a good leafe, yet a grant to enjoy" lands in the fame manner is but a covenant: [but unless it be with reference to a stranger, it is conceived that this opinion is erroneous, if the cafe itself be rightly reported.]

For, a covenant "that a ftranger fhall enjoy fuch land Eftates (G. 1.) for fo many years at fuch a rent," does not amount to a leafe, but a covenant.

66

It is faid also, that a covenant" that he shall permit the covenantee himself to hold the land for fo many years,” does not amount to a lease; for it founds only in covenant: [but this feems doubtful at this day, not merely because a licence to inhabit amounts to a leafe, but because the intention of the parties clearly is that the one grants and the other accepts a lease.]

An article" that he is content A. fhall have a leafe for 66 fix years, that the rent shall be 107." does not amount to a leafe; for it appears to be only inftructions for a leafe. So, I agree to let my land," this is no leafe.

So, an agreement or covenant made between A. and B. that C. fhall have fuch land for years; this being made between firangers, cannot amount to a leafe.

So, if A. covenants with B. that his executors fhall have fuch land for twenty-one years, this cannot amount to a leafe.

■ Salk. 346. S.P.

If a man have a leafe for years of land, and he reciting Shep. Touch. this, by the premiffes of the deed grants all his eftate in the 114 land, to have and to hold the land or the term after his death, or for part of the time only; in this cafe the habendum is void, and the whole eftate paffes immediately by the premiffes.

Where there is a demife of premiffes, and an entire rent Efp. R. 78. referved, if any part of the premiffes could not legally be

demifed, the whole is void.

A Leafe; how made.

A leafe may be made, either, 1. by deed; 2. by writing without deed; or 3. by parol demife.

Of a Leafe by Deed.

Leafe.

A leafe by deed indented confifts of the following parts: Parts of Such 1. the premises; 2. the habendum et tenendum; 3. the reddendum, or refervation; 4. covenants; and 5. provifos or

conditions.

The premises of a lease are all the parts that precede the Shep.Touch. 75. habendum. The office of this part of the leafe is rightly to name the leffor and lessee, and to comprehend the certainty of the thing demifed, either by exprefs words, or by that which by reference may be reduced to a certainty; and the exception, or thing excepted, if there be any. The recital, alfo, if there be any, is for the most part contained in the premises.

A leafe to one for life habendum to his three fons fuccef- Cro. Eliz. 58. fively, but omitting to mention the fons in the premises of the deed, was held to be for the life of the father only, and that the fons should not take in poffeffion or by way of remainder: for it being limited to the father for his life, that was a greater eftate than for the lives of others; and the three fons were named as perfons to have an estate, and not to make a limitation of an estate.

Co. Lit. 64.

The premifes ought to comprehend the certainty of the lands and tenements demifed. Land is nomen generalissi. 3 Atk. 82. mum, and comprehends all the fpecies of lands: and a nominal manor will pafs under the general words, meffuages, Fait. (E. 4.) lands, tenements, and hereditaments. If the thing defcribed be fufficiently afcertained, it is fufficient, though

all

Com. Dig. tit.

Shep. Touch. 75.

Fait. (E. 9.)

all the particulars are not true; as if a man demises his meadows in B. and D. containing ten acres, whereas they contain twenty acres, all the meadows pass.

The habendum et tenendum is that part of the lease which Com. Dig. tit. begins with " to have and to hold," and properly fucceeds the premises. The office of the habendum is to name the leffee, and to limit the certainty of the estate. It may also abridge or alter the generality of the premises. The tenendum was formerly used to denote the lord of whom and the tenure by which the eftate was to be holden, which has long been unneceffary: it is retained merely by custom.

Shep.Touch. 77.

Cro. Eliz. 6.

Shep. Touch. 80.

An exception is a claufe in a deed, whereby the leffor excepts fomething out of that which he has granted before by the deed and being the act and words of the leffor, fhall be taken ftri&tè against him. In every good exception, these things muft always concur; 1. the exception muft be by apt words, as faving and excepting," &c. 2. it must be of part of the thing demised, and not of fome other thing; 3. it must be part of the thing only, and not of all, the greater part, or the effect of the thing granted: an exception, therefore, in a leafe, which extends to the whole thing demised, is void; 4. it must be of such a thing as is feverable from the premiffes demifed, and not of an infeparable incident; 5. it must be of fuch a thing as he that doth except may have, and which properly belongs to him. It must be of a particular thing out of a general, and not of a particular thing out of a particular thing; 6. it must be certainly described and fet down: therefore, if one demise a manor excepting one acre, without fetting forth which, or what acre it fhall be, the exception is void.

The reddendum or refervation is a claufe in the leafe, whereby the leffor referves fome new thing to himself out of that which he granted before: and this commonly and properly fucceeds the tenendum, and is usually made by the words "yielding and paying," and fuch like. In every good reservation, these things must always concur: 1. it must be by apt words; 2. it must be of fome other thing iffuing or coming out of the thing granted, and not a part of the thing itself, nor of fome thing iffuing out of another thing;

3. it must be of fuch a thing whereunto the grantor may have refort to diftrain; 4. it must be made to one of the grantors, and not to a stranger to the deed.

A covenant is a claufe of agreement contained in the leafe, whereby either party is bound to do, perform, or give fomething to the other.

A condition, or provifo, is a clause of restraint in the Co. Lit. 35. leafe, which is commonly expreffed by the words "pro

"vided," or "provided always," or words fimilar.

A leafe by deed, like any other deed, must be written, 2 Bl. Com. 197. (or, it is prefumed printed; for it may be in any character or language); but it cannot be upon wood, leather, cloth, or the like, but only upon parchment or paper, for the writing (or printing),upon them can be leaft vitiated, altered, or corrupted. It muft alfo have the regular stamps imposed on it by the several statutes for the encrease of the public revenue of which fee hereafter.

Formalities requifite.

2 T. R. 695.

2

It is requifite that the refpective parties, the leffor and leffee, whose deed the leafe is, fhould feal, and now in almost every case, sign it also: an instrument not under feal, is no deed; for a feal is effential to a deed. The ufe of feals as a mark of authenticity to letters and other inftruments in writing, is extremely antient. The method of our Saxon ancestors was for fuch as could write to fubfcribe their names, and whether they could write or not, to affix the fign of the cross, which cuftom our illiterate vulgar do, for the most part, to this day keep up, by figning a crofs for their mark, when unable to write their names. [Lord Hardwicke calls fuch markmen. 3 Atk. 389.]. This neglect of figning, and cuftom of refting only on the authority of feals, remained very long among us; for it was held, in all our books, that fealing alone was fufficient to authenticate a deed. The common form of attefling deeds, " fealed and delivered," continues in great measure to this day; notwithstanding that the ftatute 29 C.2. c. 3. commonly called "The ftatute of "Frauds and Perjuries," revives the Saxon custom, and exprefsly directs the figning in all grants of lands and many other species of deeds: in which, therefore, figning feems

Bl. Com. 297.

to