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requiring no covenant from him. It can therefore rarely happen that a lease is made by deed poll; since leases generally contain a variety of mutual covenants.—When a lease is granted by indenture, two parts or copies are made, one of which is executed by the lessor, and delivered to the lessee, and is called the original ,• the other is executed by the lessee, and delivered to the lessor, and is called the counterpart. Sometimes each part is executed by all parties, which renders them both originals.
As every lease is presumed to be by deed, till the contrary be shewn, so every deed that is pleaded shall be intended to be a deed poll, unless it be alleged to be indented (a). Whenever a lease, therefore, is pleaded as an indenture, it must be so alleged (b).
Parts of a Lease.—A lease by deed indented consists of the following parts: J. the premises; 2. the habendum and tenendum; 3. reddendum, or reservation; 4. covenants; and 5. provisoes, or conditions.
The premises of a lease are all the parts that precede the habendum (c). The office of this part of the lease is rightly to name the lessor and lessee, and to comprehend the certainty of the thing demised, either by express 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 also, if there be any, is for the most part contained in the premises.
A lease to one for life, habendum to his three sons successively, but omitting to mention the sons in the premises of the deed, was held to be for life of the father only, and that the sons should not take in possession or by way of remainder: for it being limited to the father for his life, that was a greater estate than for the lives of others; and the three sons were named as persons to have an estate, and not to make a limitation of an estate (d).
The habendum et tenendum is that part of the lease (e), which begins with " to have and to hold," and properly succeeds the premises. The office of the habendum is to name the lessee, and to limit the certainty of the estate. It may also abridge or alter the generality of the premises Cf). The habendum, in short, limits, enlarges, ascertains, and fixes, the meaning of the premises, but it cannot contradict them. The tenendum was formerly used to denote the lord of whom, and the tenure by which, the estate was to be holden, which has long been unnecessary; it is retained merely by custom.
If a man have a lease for years of land, and he, reciting this, by the premises of the deed grants all his estate in the land, to have
(a) Rex r. Little Dean. 1 Str. 555.
(e) Shep. Touch. 75. Com. Dig. tit. Fait, (E. 9.)
(f) Cochran v. Heathcote Loffi. 190,
and to hold the land or the term after his death, or for part of the time only; in this case the habendum is void, and the whole estate passes immediately by the premises (a).
An exception is a clause in a deed, whereby the lessor excepts something out of that which he has granted before by the deed: and being the act and words of the lessor, shall be taken strictly against him (b). But (c) where an exception does not defeat the grant, or is contrary to it, it must stand. In every good exception, these things must always concur; 1. the exception must be by apt words, as "saving and excepting," C. 2. it must be of part of the thing demised, and not of some other thing; 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 lease, which extends to the whole thing demised, is void (d); 4. it must be of such a thing as is severable from the premises demised, and not of an inseparable incident; 5. it must be of such 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 set down: therefore, if one demise a manor excepting one acre, without setting forth which, or what acre it shall be, the exception is void. But (c) if a man be possessed of a new house and an old house, and make a lease with an exception of the new house for the use of the lessor when he pleases to reside there, and at other times for the use of the lessee, the new house is well excepted; which exception is not avoided by the words "at all times to be used by the lessee, when the lessor doth not dwell there," for that sentence doth not enure as an exception out of an exception, (which sets the matter at large,) but only as a declaration of the lessor's intention in making the exception. The latter words, however, make the lessee tenant at will.
So if a man lease his houses, excepting his new house, during the term, this exception is good: but if he except it during life, it is void; or if a man having a term of two houses for certain years, grant his houses, excepting one of them, for life, this exception is void; for the words " during life," qualify the exception, and shew his intent that the one house shall not be excepted during the whole term, and so is void (c).
The reddendum or reservation is a clause in the lease, whereby the lessor reserves some new thing to himself out of that which he granted before (e): and this commonly and properly succeeds the
tenendum, and is usually made by the words " yielding and paying," and such like. In every good reservation, these things must always concur: 1. it must be by apt words; 2. it must be of some other thing issuing or coming out of the thing granted, and not a part of the thing itself, nor of some thing issuing out of another thing; 3. it must be of such a thing whereunto the grantor may have resort to distrain; 4. it must be made to one of the grantors, and not to a stranger to the deed.
A covenant is a clause of agreement contained in the lease, whereby either party is bound to do, perform, or give something to the other.
A condition, or proviso, is a clause of restraint in the lease, which is commonly expressed by the words "provided," or "provided always," or words similar (a).
Formalities requisite.—It is requisite that the respective parties, the lessor and lessee, whose deed the lease is, should seal, and now in almost every case, sign it also: an instrument not under seal, is no deed, for a seal is essential to a deed (b). The neglect of signing, and custom of resting only on the authority of seals, remained very long among us; for it was held, in all our books, that sealing alone was sufficient to authenticate a deed. The common form of attesting deeds, "sealed and delivered," continues in great measure to this day; notwithstanding that the statute 29 C. 2. c. 3. commonly called "The Statute of Frauds and Perjuries," revives the Saxon custom, and expressly directs the signing in all grants of lands and many other species of deeds: in which, therefore, signing seems to be now as necessary as sealing, though it has sometimes been held that the one includes the other.
The lease must also be delivered, either by the parties themselves, or their certain attorney or attornies, which delivery is also expressed in their attestation "sealed and delivered," for delivery makes it a lease (c). Almost any manifestation, however, of the party's intention to deliver, if accompanied by an act importing the same, will constitute a delivery. If the date be false or impossible, the delivery ascertains the time of it. If another person seals the deed, yet if the party delivers it himself, he thereby adopts the sealing, and, by a parity of reason, the signing also, and makes them both his own. Every deed shall be intended to be delivered on the day it bears date, unless the contrary be proved.
The last requisite is the attestation or execution of the lease in the presence of witnesses, though this is necessary rather for the preservation of the evidence, than to constitute the essence of the
<«) Co. Iirt. 35. I d. Hodson v. Staple. 2 T. R. 685. 95.
(4) 2 BI. Com. 297. 3 last. 16?.—Doc | (r) Co. Litt. 36. 2 Bl. Com. 307.
longer period than three years, enures only as a tenancy at will, and until the lessor does some act acknowledging the lessee as his tenant, the lessee may be ejected at any moment. But when the lessor has accepted rent, or otherwise acknowledged a tenancy, the lessee becomes tenant from year to year, and holds under the terms of the lease in all respects except as to the duration of the term (a).
A lease for three years to commence in futuro by parol, is not warranted by the Statute of Frauds (b).
But a lease by parol for a year and a half, to commence after the expiration of a lease which wants a year of expiring, is a good lease within the statute; for it does not exceed three years from the making (c).
If land be leased to A. for a year, and so from year to year as long as both parties shall agree, this is a lease for two years certain; and if the lessee hold on after two years, he is not a lessee at will, (as the old opinion was) but for a year certain, and his lease is not determinable till that year be ended; for his holding on is an agreement to the original contract: and such executory contract is not void by the Statute of Frauds, for there is no term for above two years ever subsisting at the same time; and there can be no fraud to a purchaser, for the utmost interest that can be to bind him can be only for one year. But if the original contract were only for a year at Si. pa- arm. rent, without mentioning any time certain, it would be a tenancy at will after the expiration of the year; unless there was some evidence,1 by a regular paymentof rent annually, or half yearly, that the intent of the parties was that he should be a tenant for a year (d).
Section III. of registering Leases.
The registry of deeds has been rendered necessary in particular parts of the kingdom, by certain statutes passed at various periods of time, in order to prevent the frauds which were practised by means of secret transfers and prior mortgages.
The statute 2 and 3 Ann. c. 4. enacts, that a memorial of all deeds and conveyances made and executed in the West-Riding of
the county of York, after September 29, 1704; whereby any honors, manors, lands, &c. may be any way affected in law or equity, may, at the election of the party or parties concerned, be registered in an office to be kept at Wakefield, in the said Riding, for that purpose; which memorial must be written and directed to the register of the said office; and must be under the hand and seal of some or one of the grantors or grantees, his or their guardians or trustees, attested by two witnesses, one whereof to be one of the witnesses to the execution of such deed or conveyance: which witness shall, upon oath before the said register or his deputy, prove the signing and sealing of the said memorial, and the execution of the deed or conveyance therein mentioned; and that every such memorial shall contain the date of such deed or conveyance, and the names and additions of all the parties thereto, with the places of their abode; and shall also mention the honors, manors, lands, C. contained in such deed, C. and the names of the parishes, C. wherein they are situated; every deed or conveyance that shall, at any time after such memorial is so registered, be made and executed of the honors, manors, lands, Sfc. or any part thereof contained in men memorial, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration; unless such memorial thereof shall be registered as the act requires, before the registering of the memorial of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim.
The statute 6 Ann. c. 35. contains provisions of a similar nature with respect to the East-Riding of the same county, and the town of Kingston-upon-Hull, and appoints the Register-office to be kept m Beverley in the said Riding.
The statute 8 G. Q. c. 6. contains provisions of a similar nature with respect to the North-Riding of the same county.
The statute 7 Ann. c. 20. contains provisions of a similar nature with respect to the county of Middlesex. The Master of the King's Bench to be the Register who may appoint a deputy, both of them to be under the controul of the Lord Chancellor, by whom rules may be made for the management of the office, which is to be kept in or near the Inns of Court or Chancery. The registers to endorse a probate of every deed so registered, which certificate shall be allowed as evidence of such registry in all courts of record whatsoever. Upon certificate and proof made to the register that money due on a mortgage entered in the registry has been satisfied, the register shall make an entry thereof in the margin against the enrollment.
By statute 25 G. 2. c. *. the deputy of the chief clerk of the