Ibid. Ibid. Cro. Jac, 617. Bac. Abr. ut ante. to keep them in their own maintenance and occupation, which might be greatly to the prejudice of both but to prevent the hufband's abufe of fuch power, and left he fhould make leases to the prejudice of his wife's inheritance, the law has left her at liberty after his death, either to affirm and make good fuch lease, or to defeat and avoid it, as fhe finds moft fubfervient to her own intereft: and this she may do though fhe joined in fuch leafe, unless made purfuant to the ftatute 32 H. 8. c. 28. If a widow chufes to avoid fuch leafe, notwithstanding her having joined therein, then it is fo abfolutely defeated ab initio as to her, that she may plead non demifit; because, as to any intereft that paffed from her, fhe did not demife, nor in truth had any power to contract, but the whole interest passed from the husband, and the leffee is in merely by virtue of the hulband's contract; and yet because the leffee by his acceptance of fuch leafe admitted them both to have power to join therein, he must accordingly during the coverture declare of the lease by them both as an effential part of the defcription of the lease whereby he makes title. But the indenture or deed-poll, whereby fuch lease was made, being no effential part either of the defcription or lease itself, because the husband during the coverture might have made it by parol only; therefore it is not necessary nor usual for the leffee in his declaration to make any mention thereof. A leafe made by hufband and wife of the lands of the wife, and delivered by letter of attorney in both their names, will fupport a declaration in ejectment on a lease by the husband only; for the delivery by attorney being void as to the wife, it is the lease of the husband only. But if the hufband and wife join in a leafe for years by parol of the wife's lands rendering rent, or if the husband folely make fuch parol leafe, rendering rent, this determines abfolutely by his death, fo that no acceptance of rent, or other act done by the wife, will prevent its avoidance: for a lease for years being an immediate contract for or difpofition of the land itself, if the fame appears in writing duly executed, fo that there can be no variation or deviation. therefrom therefrom attempted by the leffee after the husband's death; the law fo far gives countenance to fuch leafe for the encouragement of farmers and hufbandmen, that the fame fhall continue in force till the wife's actual diffent or difagreement thereto; but, because there can be no fuch certainty of the terms of a parol lease, when nothing appears in writing to manifeft them, therefore they, like other charges of the husband, fall off and drop with his estate or intereft therein. If the husband and wife make a leafe for years of the wife's land, without refervation of any rent, yet it hath been adjudged that this is a good leafe by them both during the coverture, and that the wife, after the husband's death, may affirm the fame by acceptance of fealty, or bringing an action of wafte: fo that the reservation of rent is not effential to the exiftence or continuance of fuch lease after the husband's death, but only a writing attefting the same, and the wife's allowance and approbation thereof; for as the husband made fuch lease at first without any reservation of rent, so the wife, if she thinks fit, may continue the leffee in poffeffion after his death upon the fame terms. Bac. Abr. tit If a husband feised of a copyhold in right of his wife, Ibid. & Cro. make a lease not warranted by the custom, it is a forfeiture Car. 7. of the eftate during the life of the husband only; for it is not a continuing detriment to the inheritance, or fuch an act as tends to the deftruction of the manor, in which cafe it would bind the inheritance of the wife after the husband's death. A husband letting copyhold lands, of which he is feised Ibid. Cro. Eliz. in right of his wife, by indenture, will not deftroy the 459. custom of demifing by copy, because the wife may enter after his death and avoid fuch lease. A woman guardian in focage, marries and joins with her Ibid. hufband by indenture in making a leafe for years of the ward's lands, yet after her husband's death she may avoid the fame in right of the infant whofe guardian fhe still continues to be, and to whom, when he comes of age, she must be accountable for the profits. A man poffeffed of a term of years in right of his wife, as 3 Will. 277executrix of her former husband, has power to grant and convey the fame. G 3 But Cro. Jac. 99. 9 Mod. 43. But a husband feised in right of his wife cannot grant copies in his own name, but the wife ought to join. A husband, in whom a long term of years was vested in right of his wife, made an under-leafe for ten years, and upon borrowing money of the leffee covenanted to grant him another leafe after the end of the ten years, and to continue during the time he had any right, but died before he made fuch lease; it was decreed to be a good dif pofition of the term in equity. Shep. Touch.280 Touching leafes made by husband and wife, pursuant to the ftatute 32 H. 8. c. 28. [concerning which ftatute fee ante p. 38.] the husband may at this day, without fine or recovery, make leafes of the lands, tenements, or hereditaments, whereof he hath any estate of inheritance in fee-simple or fee-tail in right of his wife, made before or after the coverture, fo as there be in fuch leafes obferved the conditions or limitations before required in the leases made by tenant in tail; and fo that the wife join in the fame deed, and be made party thereunto, and feal and deliver the fame deed herself in perfon; for if a man and his wife make a letter of attorney to another to deliver the leafe upon the land, this leafe is not a good leafe from the wife warranted by the flatute; and yet then, as in other like cafes, of leafes not warranted by the ftatute, it is a good leafe against the hufband. When the leafe is fuch an one as is warranted by the ftatute, it binds the hufband and wife both, and the heirs of the wife; but if it be an eftate-tail, it doth not bind the donor nor him in remainder. Bac. Abr. tit. Husband and wife, the husband purchased land to him Leafes (C. 1.) and his wife and their heirs, and afterwards he, without his wife, lets this land for fixty years, if they should fo long live, rendering 280l. per ann. rent at the two ufual feafts, during the term, then the hufband dies, and if this leafe fhould bind the wife by the 32 H. 8. c. 28. was the question; and it was held by three juftices that it should: for the wife is appointed to join only when the hath the fole inheritance by the appointment of the rent to be referved to the heirs of the wife, and not when the hath a joint-eftate, as in this cafe; and then clearly by the body of the act, the leafe by the husband folely is good, and the provifo does not extend to it; in truth, the leafe determined by the death of either of them. SECTION XII. Of Leafes by Infants and Guardians. With respect to the power that an infant poffeffes to Of Infants. grant a lease that shall be binding, the cases in the books are fomewhat contradictory, and the point is hitherto unsettled. The better opinion however feems to be, that leafes made by infants are not abfolutely void, but voidable on their attaining their majority. "All gifts, grants, or deeds, made by infants, by matter in Perk. s. 12. "deed, or in writing, which do take effect by delivery of "his hand, are voidable by himself, by his heirs, and by thofe who have his eftate." The words "do take ef fect," are an effential part of the definition, and exclude 3 Bur. 1804. letters of attorney, or deeds which delegate a mere power and convey no intereft. All the books agree, that if an infant make a lease for Bac. Abr. tit. years, he cannot plead non eft factum, but muft avoid it by Leafes (B) pleading the special matter of his infancy; which favours the opinion of those who hold, that the leafe is not abfolutely void; for if it were abfolutely void, there is no good reafon why he fhould not plead non el factum, as a feme-covert certainly may do in such case, whose lease is absolutely void, fo that no acceptance of rent after her husband's death can make it good. In debt for rent the defendant pleaded infancy at the time Bull. N. P. 177of the leafe made; and upon demurrer, the Court held the Cro. Jac. 320. leafe voidable only at his election; for if it were for his be nefit, it fhall be no ways void, but the infant at his election may make it void, by refufing and waiving the land before the rent-day comes; in which cafe no action of debt would lie against him; but the defendant not having fo done, and being of age before the rent-day due, and it not being fhewn to the court that in this café the rent was of greater value, the plaintiff had judgment. But if an infant, poffeffed of a term of years, fell it for Bac. Abr. tit. money, and after he comes of full age, receives part of the Leafes (B.) G4 money Ibid. 3 Bur. 1806. Ibid. Bac. Abr. tit; Infancy & Age, (C.) 2 Vern. 224. Cro. Car. 306. Of Guardians Bac. Abr. tit. Cro. Jac. 99. money for it, he shall avoid the grant notwithstanding; for the contract, as faid, being void in the commencement, cannot be made good by any fubfequent act. An infant made a lease for years, and at full age, faid to the leffee, "God give you joy of it ;" this was holden by Mead a good affirmation of the leafe; for this is a usual compliment to exprefs one's affent and approbation of what is done. 66 What seems decifive upon the queftion, is that "leffee can in no case avoid the leafe, on account of the infancy "of the leffor;" which fhews it not to be void, but voidable only; and it is better for infants that they fhould have an election. It has long been fettled that "an infant may make a leafe "without rent to try his title." In truth, very prejudicial leafes may be made, though a nominal rent be reserved, and there may be moft beneficial confiderations for a lease, though no rent be referved. An infant is bound by all conditions, charges, and penalties, in an original conveyance, whether he comes to the eftate by grant or descent, because the estate tranfit cum onere, and therefore, if the infant will have the eftate, he muft obferve the condition upon which it was granted. The court of Chancery will decree building leafes for fixty years of infants' eftates, when it appears to be for their good. Where an infant makes a leafe for years, referving rent, and the leffee enters, the infant hath election to allow him to be his tenant, or to be his diffeifor, whichever is most to his advantage; fo, where one enters and claims as guar dian, and occupies, the infant may allow him to be either diffeifor, or accomptant, whichever shall be for his best ad vantage. A guardian in focage may make leafes for years in his own. name, and the leffee may maintain ejectment thereupon; for this guardian is a perfon appointed not by any special defignation of the party, but by the wifdom of the law, in respect of the lands defcended to the infant, fo that where no lands defcend, there can be no fuch guardian: and his office originally was to inftruct the ward in the arts of tillage and |