As to these respective estates, it will be sufficient to observe, that if either of the tenants make a lease for years, reserving rent, and die, this lease is absolutely determined, so that no acceptance of rent by the heir or those in reversion can make it good; for though their estate is, quodam modo, a continuance of the estate of the husband or wife, yet it is a continuance only for life, and they have no power to contract for, or intermeddle with, the inheritance, and consequently their leases or charges fall off with the estate whereout they were derived, and the lessee is become tenant by sufferance by his continuance of possession after (a).

SECTION VII. Of Leases under Powers.

The limitation and modifying of estates by virtue of powers, came from equity into the common law with the Statute of Uses (b): as therefore powers came into the courts of law with the Statute of Uses, so the construction of them, by the express direction of the statute, must be the same as in courts of equity (c); for whatever is a good power or execution in equity, the statute makes good at law (d). As powers are derived from equity, and ought even at law to be construed equitably, so in the construction of powers originally in their nature legal, courts of equity must follow the law, be the consideration ever so meritorious,

The circumstances attending the execution of such leases may be considered, 1. With respect to the lessor; 2. to the lessee; 3. to the subject on which the power is to operate; 4. to the quality and quantity of interest to be granted; 5. to the rent; 6. to the form of the lease (e).

1. With respect to the lessor.

He must, as we have observed, pursue the power strictly. If tenant for life, therefore, has a special power of granting leases for a longer term than his own life, upon his death the lease is void, unless he has strictly pursued the power. So, tenant for life, with power of leasing under certain conditions, must demise in strict conformity with those conditions (f). Indeed in respect to the execution of powers, courts of justice have always looked with a jealous eye to see that the conditions in favour of the next taker be pursued, not literally only, but substantially.

So, tenant for life, with power to make leases for three lives, or twenty-one years, cannot make such leases by letter of attorney, by

(a) Bac. Abr. tit. Leases. (1.) Miller v. Mainwaring. Cro. Car. 397.

(6) Taylor v. Horde. 1 Burr. 60. 120.
(c) Ren d. Hall v. Bulkeley. 1 Doug. 292.
(4) Zouch d. Woolston v. Woolston. 2 Burr.

1136.46. Woolston v. Woolston. I Bl. R. 281. (e) Powell on Powers, 390.

(ƒ) Doe d. Ellis v. Sandham. 1 T. R. 705. 709. Doe d. Pulteney v. Lady Cavan. 5 T. R. 567. S. C. 6 Bro. Cas, in Par. 175

virtue of his power (a); because such leases not being derived out of the interest of the tenant for life, but by an authority derived from the tenant in fee, and to charge the estate of third persons, the trust for that purpose is personal, and cannot be delegated to another.

It has also been determined, that where a power of leasing was given to the father, tenant for life, and after his decease, to the son, tenant for life, and the son obtained a grant from the father, of his life estate, (without noticing the power) subject to a certain rent, with a power of re-entry for non-payment; the son, during the life-time of his father, could not lease under the power (b).

A power to make leases generally, extends only to leases in possession, and not to leases in reversion, or in futuro (c).

The grant of a lease need not be in actual possession, but a constructive possession, by the receipt of the rents and profits, is a sufficient compliance with the power. If actual possession were necessary, a leasing power could never be executed where the land is in the hands of a tenant (d).

Therefore where a tenant for life, with power to grant leases in possession for twenty-one years at the best rent, conveyed his lifeestate to trustees to pay an annuity for his life, and the surplus to himself; the power was held to be not thereby extinguished, but he might still grant a lease agreeably to the terms thereof (d).

When a power was given to a tenant for life to demise by indenture such premises as were then leased for lives, to any persons in possession or reversion for one, two, or three lives, so as the amount of rents, &c. were reserved, and " so as there were contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved," and the tenant for life made a lease in other respects conformable to the power, and containing the following proviso: "that if at any time during the estate hereby granted, the said yearly rent shall be behind or unpaid in part, or in all, by the space of fifteen days, next over or after any or either of the days or times, whereat or whereupon the same ought to be paid, and no sufficient distress, or distresses, can or may be had or taken upon the said premises, whereby the same, &c. may be fully paid, then and from thenceforth it shall and may be lawful to and for the said lessor, &c, to re-enter, &c." It was held by the Court of King's Bench, that this clause of re-entry pursued the form required by the leasing power, and that the lease was valid. This judgment was reversed in the Exchequer Chamber, by four Judges against three, but subsequently affirmed in the House of Lords (e).

(a) Lord Cromwell's case. 2 Co. 70. 76. (a) (b) Coxe v. Day. 13 East. 118.

() Shecomb v. Hawkins. Cro. Jac. 318. Winter v. Loveday. Com. Rep. 37.

(d) Rend. Hall v. Bulkeley. 1 Doug. 292. (e) Doe d. Jersey v. Smith. 1 B. & B. 97. S. C. 2 B. & B. 473.

2. With respect to the lessee.

The lessee, in a lease under a power, must, it should seem, be a person in being at the time when it is made; for generally such leases cannot be made in reversion or in futuro: and it has been held, that if a power be to make leases to one, two, or three persons, the donee of the power cannot make a lease for the life of the first son of J. S. because the person to take under the power ought to be in esse (a).

If a man covenant in consideration of natural affection, with a power to make leases, a lease to a stranger is void (b).

3. With respect to the subject on which the power is to operate. A tenant for life, having power to grant building leases for sixtyone years, reserving the best improvement ground rent, granted a lease for that term, which was not expressed to be a building lease, but which contained a covenant by the lessee to keep in repair the premises demised (old houses) or such other "house as should be built during the term ;" held that this was not a building lease within the power, and therefore void (c).

If a leasing power be restrained to be exercised only over hereditaments usually letten, lands twice letten are included within that description (d).

But lands that have been but once letten, are not within such a power (d).

So, if lands had been leased by virtue of a contract, from year to year for three years, this cannot be said to be usually letten, because this is but one lease, though renewable every year.

Any kind of demise is sufficient to support such power, there being no necessity that it should have been demised by indenture; a demise at will or by copy, is sufficient to make land to be accounted usually demiseable (e).

But lands not demised for the space of twenty years before the execution of a power to demise, at the rent then usually reserved and paid, cannot be leased under such power (ƒ).

Thus (g) where there was a tenant for life, with power to make leases of all or any of the lands in an indenture of settlement, particularly mentioned, which at any time theretofore had been usually letten or demised, for and during the term of twenty-one years or under, in possession and not in reversion, reserving the rent thereupon, then yielded or paid, or more. Tenant for life made a lease of part of the premises mentioned in the settlement, which had been let at 100l. per ann. for twenty-one years, but which term of twenty-one years had expired, and the premises had not been let for the space of twenty years before the demise, under the power which was the sub

(a) Snow v. Cutler. T. Ray. 163.

(6) Cross v. Faustenditch. Cro, Jac. 180. (c) Jones d. Cowper v. Verney. Willes. 169. (2 Roll. Abr. 261.

(e) Powell on Mort, 392,

(f) Powell on Power. 395.

(g) Trestian d. Gore v. Baltinglass. Vaugh. 31. S. C. Sir T. Jones. 27.

ject of dispute. It was held, that what was not farmed at the time of the proviso made, nor twenty years before, could not be said to be at any time before commonly farmed; for those twenty years were a time before in which it was not farmed. Besides, the proviso was, that leases might be made for twenty-one years of any lands in the deed, reserving the rents thereupon reserved at the time of the deed made, which necessarily implied, that the land demiseable by that proviso must be land which then was under rent; for if no rent then was, the rent then thereupon reserved could not be reserved. But the premises in question had then no rent upon them, for they were not let of twenty years before, nor then, and therefore were not demiseable by that proviso. The words "or more," could not at all help the lessee; for the words "more" or "less," were words of relation; the one of addition to what was before, the other of diminution: for "more" or "less," must relate to something positive before, and could never be a relation to nothing.

A covenant to stand seised, as it is a lease if made by the owner, so also is it an evidence of the usual manner of demising (a).

It seems now to be settled, that the question, whether, (under a power to lease lands, and other hereditaments, provided that such rent or more be reserved upon every lease as hath been reserved, or paid for it within a given time, previous to the creation of the power) lands not before in lease may be demised, is a question of construction on the intention of the author of the power, to be collected from the instrument creating the power, or the circumstances of the estate (b).

Thus, where a power was to lease a manor except the demesne lands, although copyholds, being within that description, could not be demised under such power, yet the rents and services of the manor might (c); for it appeared to be the intent of the settlement, that part of the manor should be demisable; and notwithstanding a qualification annexed to the power which said that the ancient rent should be reserved, and no reservation of rent could be upon a lease of rents and services, out of which no rent issues, yet the rents and services might be demised within the power; for it appeared, that part of the manor was intended to be comprised within the power, but that the demesne lands were not to be comprised; then the rents and services must be, for the whole of the manor consists in demesnes, rents, and services; and if a man hath a power reserved to him of making leases of two things, and a qualification is annexed to the power, which cannot extend to one of these things, he may make a lease of that thing without any regard to the qualification. Accordingly, where there is a power to make a lease of a manor, (a) Right d. Basset v. Thomas and another.

3 Burr. 1441. 1443.

(b) Powell on Power. 402. 2 Roll, Abr.

262. 15. Wakeman v. Waker. 3 Keb. 595. (c) Loveday v. Winter. 245. 378. S. C. Winter v. Loveday. i Com, R. 37.

and every part thereof, so that such rent be reserved upon every lease as was paid for two years before, and it happens that some part of the land was not leased at any rent within two years before; a man may make a lease of such land, reserving what rent he pleases, for the intent appears to be, that he might make leases of the whole manor (a).

So, also, where a man had power to make leases of a rectory, tithes, and other lands, reserving the ancient rent, it was held, that he might make leases of tithes, although no rent can issue out of tithes; but he might demise them without any rent if it pleased him, for it appeared, that tithes were within the power (b).

So, under a power to lease all manors, messuages, lands, &c. "so as there be reserved as much rent as is now paid for the same," such parts of the estate enumerated in the power as have never been demised, may be let (c).

But where a devise was to trustees in strict settlement with power to lease "all or any parts of the lands so limited, so as there be reserved the ancient and accustomed yearly rents;" the power was held not to extend to such parts of the lands as had never been before let (d).

And under a power in a family-settlement to make leases for all or any part of the premises, reserving the ancient rent, lands always occupied with the family seat cannot be demised; for in such case, the qualification annexed to the power, "that the ancient rent must be reserved," manifestly excluded the mansion-house, and lands about it never let; the nature of the thing in such case, speaks the intent (e).

So, under the settlement of an estate, with a power to the tenant in possession, to let all or any part of the premises, so as the usual covenants be reserved, a lease of tithes, which had never been let before, was held void. In all these cases, the intention of the parties is to govern the Court in construing the power (f).

Every power, in the construction of it, is to be taken with such a restriction, that the estate itself, which is subjected to the power, shall not be destroyed by the exercise of it. Therefore, in the case of Winter and Loveday, Rokeby, J. held that, had the express words used in that case," so as it be not of the demesne lands" been left out, yet there would have been a restraint by implication from making leases of customary land held of the manor; for if the customary land might be demised, the manor would be destroyed, which, it must be presumed, was not the intent of the parties (g).

(a) Loveday v. Winter. 245.378. S. C. Winter v. Loveday. 1 Com. R. 37. S. C. (6) Walker v. Wakeman. I Vent. 294. (e) Goodtitle v. Funucan Doug. 565. (d) Doe d. Bartlett v. Rendle. 3 M. & S.

(e) Sir Walter Baggott v. Oughton. 8 Mod. 249. Baggott v. Oughton. Fort. 332.

(f) Pomery v. Partington. 3 T. R. 665. (g) Powell on Power. 407. Loveday v. Winter. 5 Mod. 245. 378. &c.