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not however be given or received by attorney, but only by the parties themselves (a).
If a lease be to A. and B. livery to one of the lessees is sufficient (b).
A lease for life of any thing whatsoever, whether it lie in livery or in grant, if it be in esse before, cannot begin at a day to come i for an estate of freehold cannot commence in futuro (c).
Therefore if a lease be made habendum from Michaelmas next, or after the death of the lessor, or after the death of J. S. to the lessee for life, this lease would not be good (c).
So also where one doth make a lease of land to another for years, the remainder to a stranger for life, in this case livery of seisin must be had and made to the lessee for years, or else nothing will pass to him in remainder, and yet the lease for years will be good (d). For if a man lease to A. for years, remainder to B. in fee, in tail, or for life, he must make livery to A. (d).
But livery of seisin is not needful or requisite to be had and made in cases where such estate for life is made or granted of any lands by matter of record ; nor where such estate is created by way of covenant and raising of use, or of exchange, or endowment; nor where such estate is passed or granted by way of surrender, devise, release, or confirmation; or by way of increase or executory grant; as when the fee-simple is granted to the lessee for life or years in possession (d).
Neither is it requisite, or can be made, where any incorporeal hereditaments are granted for life. Nor is it requisite in some cases, where an estate of freehold is made of a corporeal thing; as if a house or land belong to an office, and the office be granted by deed, the house or land passes as incident thereunto. So if a house or chamber belong to a corrody (d).
Neither is it needful, where one doth grant to me and my heirs all the trees growing on his ground; for these will pass without livery of seisin at all (d).
Though, if a man make leases for three lives, there must be livery; yet if tenant for life with power to make leases for three lives, make a lease accordingly, livery is not necessary (e).
Tenant for life or Ste vie beyond sea, &c.—By the 19 Car. i.e. 6, Whereas divers lords of manors and others have used to grant estates by copy of court-roll for one, two, or more lives, according to the custom of their several manors, and have also granted estates by lease for one or more life or lives, or else for years determinable upon one
(a) Gilb. L. of Ten. J (d) Shep. Touch. aio.
(3) Com. Dig. tit. Feoffment. (B. 1.) («) Owen v. Sanders. I Ld. Rayd. 158
W Shep. Touch. «;». 3 £1 Com. 144. J 166.
or more life or lives; and it hath often happened that such person or persons for whose life or lives such estates had been granted, have gone beyond the seas, or so absented themselves for many years, that the lessors and reversioners cannot find out whether they be alive or dead, by reason whereof such lessors and reversioners have been held out of possession for many years, after all the lives upon which such estates depended are dead, in regard that the lessors and reversioners, in actions for recovery of their tenements, have been put to prove the death of their tenants when it was almost impossible to discover the same ; for remedy thereof it is enacted, that if such person or persons for whose life or lives such estates have been or shall be granted, shall remain beyond the seas, or elsewhere absent themselves in this realm for seven years together, and no sufficient proof be made of their lives in any action for recovery of such tenements by the lessors or pensioners, in such case they shall be accounted dead, and the judges shall direct the jury to give their verdict accordingly, s. i, 2.
Provided, that if any shall be evicted out of the lands or tenements by virtue of this Act, and afterwards such person or persons upon whose life or lives such estate or estates depend, shall return again from beyond seas, or shall on proof in such action as aforesaid be made appear to be living or to have been living at the time of the eviction; that then and from thenceforth the tenant or lessee who was ousted of the same, his or their executors, administrators, or assigns, may re-enter, re-possess, have, hold, and enjoy the said lands or tenements in his or their former estate, during the life or lives, or for so long term as the said person or persons upon whose life or lives the said estate or estates depend, shall be living, and shall, upon action brought by them against the lessors, reversioners, tenants in possession, or other persons respectively, which since the said eviction received the profits of the said lands or tenements, recover for damages the full profits thereof, with lawful interest from the time he or they were ousted and kept out of the same lands or tenements; and this as well in the case where the said person or persons upon whose life or lives such estate or estates did depend are or shall be dead at the time of bringing such action; as if they were then living. /. 5.
And by the 6 Ann c. 18. any person who hath or shall have any claim to any remainder, reversion or expectancy, in or to any estate after the death of any person within age, married woman, or other person whatsoever, upon affidavit in the Court of Chancery by the claimants of their title, and that they have cause to believe that such party is dead, and that his or her death is concealed by such guardian, trustee, husband, or any other person, may once a year, if the party aggrieved think fit, move the Lord Chancellor, Keeper or Commissioners of the Great Seal to order, and they shall order such guardian, trustee, husband, or other person, suspected to conceal such person, at such time and place as the Court shall direct, on personal or other due service of such order, to produce and shew to such person or persons (not exceeding two,) in such order named by the parties prosecuting the same, such minor, married woman, or other persons aforesaid: and if such guardian, &c. shall neglect or refuse to produce and shew such infant, &c. on whose life such estate doth depend, according to the said order, then the Court is required to order such guardian &c. to produce such minor, &c. in Court or before commissioners by the Court appointed, at such time and place as the Court shall direct, two of which commissioners are to be nominated by the party prosecuting such order at their costs and charges; and if such guardian, &c. neglect or refuse to produce such infant, &c. in Court or before such commissioners, whereof return shall be made by such commissioners, and be filed in the petty bag office, in either of the said cases the said minor, &c. shall be taken to be dead, and it shall be lawful for any person claiming any right, title, or interest, in remainder, or reversion, or otherwise, after the death of such infant, &c. to enter upon such lands, &c. as if such infant, &c. were actually dead. s. i.
And if it shall appear to the said Court by affidavit that such minor, &c. for whose life such estate is holden, is or lately was at some certain place beyond the seas in such affidavit to be mentioned, the party prosecuting such order may, at their costs and charges, send over one or both the persons appointed by the said order, to view such minor, &c. and in case such guardian, &c. shall refuse or neglect to produce or procure to be produced to such person or persons, a personal view of such infant, &c. then such person or persons are required to make a return thereof to the Court, to be filed in the petty bag office, and thereupon such minor, &c. shall be taken to be dead; and any person claiming any right, &c. after the death of such infant, &c. may enter upon such lands, &c. as if such infant were actually dead. s. 2.
Provided, that if it shall afterwards appear, upon proof in any action brought, that such infant, &c. for whose life any such estate is holden, were alive at the time of such order made, that then it shall be lawful for such infant, married woman, or other person having any estate or interest, determinable upon such life, to re-enter upon the said lands, &c. and for such infant, married woman, or other person, having any estate or interest, determinable upon such life, their executors, administrators or assigns, to maintain an action against those who since the said order received the profits of such lands, &c. or their executors or administrators, and therein to recover full damages for the profits so received from the time that such infant, &c. were ousted of possession, s. 3. Provided always, that if such guardian, trustee, husband, or other person, holding or having any estate or interest determinable upon the life or lives of any other person or persons, shall by affidavit or otherwise to the satisfaction of the Court, make appear that they have used their utmost endeavours to procure such infant, &c. to appear in the said Court or elsewhere, according to the order of the said Court, and that they cannot procure or compel such infant, &c. so to appear, and that such infant, &c. is, are, or were living at the time of such return made and filed as aforesaid, then it shall be lawful for such person or persons to continue in possession of such estate, and receive the rents and profits thereof during the infancy of such infant, and the life or lives of such married woman, or other person or persons, on whose life or lives such estate or interest depends, as fully as they might have done if the Act had not been made. s. 4.
And every person who, as guardian or trustee for any infant, and every husband seised in right of his wife only, and every other person having an y estate determinable upon any life or lives, who after the determination of such particular interests, without the express consent of the next immediately entitled, shall hold over and continue in possession of any manors, messuages, lands, tenements, or hereditaments, shall be adjudged trespassers: and the party entitled and their executors and administrators, may recover in damages against every such person or persons so holding over, and their executors and administrators, the full value of the profits received during such wrongful possession, s. 5.
Section II. Of Terms for Years, absolutely, or on con. dition; wherein of the commencement, duration, and termination of them: and of the surrender and renewal of Leases.
Tenant for term of years shall be, where a man lets lands, tenements, or hereditaments to another for a term of certain years; and every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years (a).
Therefore this estate is frequently called a term, terminus, because its duration or continuance is bounded, limited, and determined (d). It is properly called a term of years, and the lease is made for ten, a hundred, a thousand years, and the like, as the lessor and lessee agree; for the word " term" doth not only signify the limits and limitation of time, but also the estate and interest that doth pass for that time (c). Such terms are frequently created for particular purposes, as to raise portions, &c. and when the purpose is answered, they attend the in(a) Com. Dig. tit. Esute. (G. I.) Lit. 58. I to Shep. Touch, c. 14. Mr. W sBl.Com. 143. <
heritance; so, they are created, as has been before mentioned, by way of mortgage (a). Lands are often conveyed in the nature of a lease for long terms, as five hundred years, &c. in order to raise portions, and for other purposes, in family settlements, and such are not accounted leases, but terms to attend the inheritance; no man has a lease, for example, of two thousand years, as a lease, but as a term to attend the inheritance (6). Half the titles in the kingdom are so (c).
An estate for a thousand years is only a chattel, and reckoned part of the personal estate (d).
Therefore, if a lease be devised to one, and the heirs male of his body, yet his executors shall have it: for a term is but a chattel, which cannot be entailed, and such devisee may well alien the term to whom he pleases (e).
If, however, it be limited to attend the inheritance, it may be entailed; though the entail of the inheritance and of the term be by different clauses, or deeds executed at different times (f).
Commencement of a Lease for Years.—With respect to the commencement of a lease for years, as it is a mere chattel, it may be made to commence either in prasenti or infuturo: according to the agreement of the parties; and the lease that is to commence in futuro, is called interesse termini, or future interest (g).—A lease for years, therefore, may begin at a day to come, as at Michaelmas next, or for three or ten years after, or after the death of the lessor, or of J. S. and is as good as where it doth begin presently (g).
So a lease to commence adfestum Annunciationis, after the determination of a former lease, is as good as if it had been a festo, &c. (A).
A lease to commence after the determination of a prior lease, shall begin presently, if the prior lease were void at law (h).
So a lease intended to commence in futuro, which misrecites the prior lease on which it depends in a material point, shall begin immediately (b).
This rule, that if the former lease be misrecited in the date, &c. and a new lease made, to begin after the expiration of the said recited lease, that such new lease shall begin presently, holds as well in the lease itself, as where the jury find an indenture of lease, whereby it is recited, that the lessor made such former lease of such date and under such rent without finding it in fact, but only by way of recital in the deed, such second lease shall in construction of law be adjudged to