Where lessor leased lands of which he was seised in fee, and other lands of which he was seised for life with a power of leasing, at one entire rent, and the lease was not well executed according to the power, it was held that the lease was good after the lessor's death for the lands in fee, though not for the other lands, for the rent might be apportioned (a).

(a) Doe d. Vaughan v. Meyler. 2 M. & S. 276.

SECTION II. Of Leases by Tenants in Tail.

An estate in fee tail, though an estate of inheritance, is of a limited nature; being a gift to a man and the heirs of his body, who are prohibited from alienation, except by particular modes prescribed by law.

If tenant in tail after the statute de donis had made a lease for years and died, the lease was not absolutely determined by his death, but the issue in tail was at liberty either to affirm or avoid it, as he thought fit.

Acceptance by tenant in tail of the rent or fealty, or bringing an action for the recovery thereof, or an action of waste, were such acts as amounted to a confirmation of the lease, because these plainly manifested his intent to continue the lessee in possession upon the terms of his lease; and by consequence such issue could never afterwards avoid it during his own life (a).

If a tenant in tail makes a lease to A. for twenty years, and the lessee makes a lease to B. for ten years, and then the tenant in tail dies, and the issue accepts the rent of B. this is no affirmation of the lease, because B. was under no obligation to pay his rent to him, and is answerable for it over again to A.; and therefore his payment to the issue in tail was voluntary and in his own wrong, and the issue's acceptance thereof not conclusive, more than if he had received it of a mere stranger; and, by consequence, the issue in tail may enter and avoid the lease: but if the issue had accepted the rent from A. this had amounted to a confirmation of the lease made to A. and by consequence he could not after avoid the lease to B. which was derived thereout (a).

But if A. had assigned five acres of the land in lease to B. for the residue of twenty years, and the issue in tail had accepted the rent from B. this would amount to a confirmation of the entire lease to A. because the rent issuing out of the whole and out of every part of the land, B. as to these five acres, succeeded in the place of A. by having his whole interest therein; and then the issue in tail by acceptance of the rent from one whose part, as to him, was equally chargeable with the whole rent, hath given his consent that the whole (a) Bac. Abr. tit. Leases (D.)

D

estate chargeable therewith shall continue, though he chose to take his rent out of part only; for otherwise he would do injustice to A. who would be liable to make recompence to B. for the overplus of the rent, and yet have no recompence himself, if the issue might defeat the residue of the lease remaining in his hands (a).

If a tenant in tail makes a lease for ten years, to begin ten years hence, and dies, and the issue within the ten years enters and makes a feoffment in fee, the feoffee, at the end of the ten years, shall have election either to affirm and make good such lease, or to avoid it; for upon the death of tenant in tail, the possession was become vacant, and none had a right to enter but the issue in tail, for the time of the lessee's entry was not yet come; then when the issue enters generally, his primary right was, in respect of the inheritance, descended to him as issue in tail, and he had no occasion to direct his entry at that time to any other purpose; and therefore his entry shall be intended in respect of the estate-tail descended to him; and when after such entry he makes a feoffment in fee to a stranger, this transfers the possession just in the same plight as the issue in tail himself had it, without any thing done to determine his election, one way or another; and then the same power of election passes incorporated in the feoffment; and the feoffee, when the time for making use thereof, is come, may use it either to determine the lease by ousting the lessee, or to affirm or make it good by acceptance of rent from him.

If tenant in tail make a lease for life, whereby he gains a new reversion in fee so long as tenant for life lives, and he grants a rentcharge out of the reversion, and afterwards tenant for life dies, whereby the grantor becomes tenant in tail again, and the reversion in fee is defeated; yet, because the grantor had a right of the entail in him, clothed with a defeasible fee simple, the rent-charge remains good against him, but not against his issue (b).

A man seised in fee made a lease for ninety-nine years, if three persons so long lived; then he settled the reversion upon himself in tail, with power to make leases for twenty-one years, and then he made such a lease and died; the son, who was the issue in tail, levied a fine and sold the reversion; the first lease determined, and the court thought that the cognizee might avoid the second lease, because it never was in the election of the tenant in tail, or his issue to avoid it, they having conveyed away their estates before this second lease was to commence; for if tenant in tail make a lease to commence in præsenti, and convey away his estate by fine, the cognizee must hold it charged with such lease; but if it be to commence in futuro, it is otherwise, because it cannot be avoided before the commencement. Therefore, if tenant in tail makes a voidable lease for years or life, and dies, and the issue, before entry on the lessee, levies a fine to a (a) Bac. Abr. tit. Leases (D.) (6) Co. Lit. c. 12. 66.

stranger, the cognizee shall not avoid the lease, because such lease being only voidable by entry, when the issue before entry conveys over the land by fine, the power of entry, which was the only means of avoiding such lease, is by the fine destroyed and gone; for a right of entry cannot be transferred to a stranger any more than a right of action: so, if the tenant in tail himself after such lease, had levied a fine to a stranger, or even to the reversioner, and died, yet they could not avoid the lease ever after, because, if they could, it must be by reason of the right of entry transferred by the fine, which would have come to the issue if no such fine had been levied; and the law absolutely condemns all alienations of right only, whether it be right of entry or of action, and consequently in these cases, by such alienation, the lease is become absolute and unavoidable (a).

If tenant in tail makes a lease for thirty or forty years, rendering rent, and dies with issue, his wife privement ensient, with a son, and the donor enters, and as to himself avoids the lease, then the son is born, and the lessee re-enters; the son at full age may either affirm or avoid such lease as he thinks fit; for the lease was not absolutely determined or avoided, more than the estate-tail itself, out of which it was derived, but only secundum quid, and subject to be set up again upon the birth of the issue, which revived the estate-tail. But if such lease were made by the tenant in tail before marriage rendering rent, and then he married and died, leaving his wife privement ensient, and the donor enters, and as to himself avoids the lease, yet if the wife be afterwards endowed, the lease is revived as against her, because her estate is, quodam modo, a continuance of the estate-tail of the husband, and, therefore, revives all charges made by him before the marriage: but if the wife be after delivered of a son, and dies, now the issue may again avoid that lease or affirm it, as he thinks fit: or if such lease were made after marriage, and the wife being endowed thereof, avoids that lease, yet after her death the issue in tail may revive it; for in all these cases the avoidance of such leases being only by those who had a temporary estate or interest in the land, it cannot bind those who succeeded to the inheritance thereof, but that they may, if they think fit, re-establish and set up such lease again, which, as to them, was at first only voidable, and not absolutely void. And herein a lease at common law by the tenant in tail differs from rent granted by such tenant which is void by the death of the grantor; whereas a lease is only voidable by the issue in tail, whose acceptance of rent amounts to a confirmation (6).

Power to lease by the enabling statute. Thus, by the common-law, tenant in tail could make no leases which should bind his issue in tail,

(a) Bac. Abr. tit. Leases (D.) Simonds v. Cudmore. 3 Salk. 335. S. C. 4 Mod. 1.

(b) Cruise's Dig. tit. 11. c. 2. s. 8. Bro. Abr. tit. Grant. 145.

or the reversioner; to remedy which, the statute 32 Henry 8. c. 28. commonly called The Enabling Statute (a), was passed.

By this statute, any person whatsoever, of full age, that hath any estate of inheritance in fee tail in his own right of any lands, tenements, or hereditaments, may at this day, without fine or recovery, make leases of such lands for lives or years, and such leases shall be good; so as these conditions following be observed.

1. Such lease must be by indenture; and not by deed-poll or by parol.

2. It must be made to begin from the day of the making thereof, or from the making thereof; therefore a lease made to begin from Michaelmas, which shall be three years after, for twenty-one years; or a lease made to begin after the death of the tenant in tail, for twenty-one years, is not good. But a lease made for twenty years, to begin at Michaelmas next, it seems is a good lease; for

3. If there be an old lease in being, of the land, the same must be expired, surrendered, or ended within a year of the time of the making of the new lease; and this surrender must be absolute and not conditional; also, it must be real, and not illusory, or in shew only. Therefore,

4. There must not be a double or concurrent lease in being at one time; as if a lease for years be made according to the statute, he in reversion cannot afterwards expulse the lessee, and make a lease for life or lives, or another lease for years according to the statute, nor

e converso.

But if a lease for years be made to one, and afterwards a lease for life is made to another, and a letter of attorney is made to give livery of seisin upon the lease for life, and before the livery made the first lease is surrendered, in this case, the second lease is good.

5. These leases must not exceed three lives, or twenty-one years from the time of making them; for the words of the statute are to make a lease for three lives, or twenty-one years, so that either the one or the other may be made, but not both. Therefore, if tenant in tail make a lease for twenty-two, or for forty years, or for four lives, this lease is void; and that not only for the overplus of time more than three lives, or twenty-one years, but for that time of three lives or twenty-one years also; and it hath been resolved, that if tenant in tail make a lease for ninety-nine years, determinable upon three lives, that this is not a good lease. But if a lease be made by a tenant in tail for a lesser time, as for two lives, or for twenty years; this is a good lease. If a lease be made for four lives, and it happens that one of the lives die before the tenant in tail die; yet this accident will not make the lease good, but it remains voidable notwithstanding.

(4) 32 H. 8. c. 28.

8

6. These leases must be of lands, tenements, or hereditaments, manurable or corporeal, which are necessary to be let, and whereout a rent by law may be issuing and reserved. Therefore, if a tenant in tail make a lease of such a thing as doth lie in grant, as an advowson, fair, market, franchise, or the like, out of which a rent cannot be reserved, especially if it be a lease for life; this lease is void, and that albeit the thing have been anciently and accustomably let. A grant of rent-charge, therefore, out of such lands is void; and if a tenant in tail make a lease for three lives of a portion of tithes rendering rent; this lease is unquestionably void; so also it seems it is, if it be a lease of twenty-one years.-But now by the statute 5 G. 3. c. 17. a lease of tithes, or other incorporeal hereditaments alone, may be granted by any bishop, or any such ecclesiastical or eleemosynary corporation, and the successor shall be entitled to recover the rent by an action of debt, which (in case of a freehold lease) he could not have brought at common law.

7. They must be of such lands or tenements which have been most commonly let to farm, or occupied by the farmers thereof, by the space of twenty years next before the lease made; so as if it had been let for eleven years, at one or several times within twenty years before the new lease made, it is sufficient. Albeit the letting have been by copy of court-roll only, yet such a letting in fee, for life, or years, is a sufficient letting, and so also is a letting at will by the common law. But these lettings to farm must be made by such as are seised of an estate of inheritance: for if it have been only by guardian in chivalry, [now abolished] tenant by the courtesy, in dower, or the like; this will not serve to be a letting within the intent of the

statute.

8. There must be reserved upon such leases yearly, during the same leases, due and payable to the lessor and his heirs to whom the reversion shall appertain, so much yearly farm or rent, or more, as hath been most accustomably yielded or paid for the lands, &c. within twenty years next before such lease made. Therefore, if the rent be reserved but for part of the time of the new lease, this lease is void. So, if the tenant in tail have twenty acres of land that have been accustomably let, and he make a lease of these twenty acres, and of one acre more which hath not been accustomably let, reserving the usual yearly rent, and so much more as to exceed the value of the other acre; this is not a good lease by the statute. So, if the tenant in tail of two farms, the one at twenty pounds rent, the other at ten pounds rent, make a lease of both these farms together, at thirty pounds rent, this is not a good lease within the statute. But if besides the annual rent, there have been formerly reserved things not annual, as heriots, fines or other profits, upon the death of the farmers, or profit out of another's soil, as pasturage for a colt, &c. if upon the