One who has a power to grant a concurrent lease within seven years of the expiration of the old, may grant a lease at any time on the surrender of the old one (a).

4. With respect to the quality and quantity of interest to be granted.

Upon a general power to make leases, without saying more, the law adjudges, that the leases ought to be leases in possession; for if upon such power a lease might be made upon a lease, the party might, by making infinite leases, detain those in remainder out of possession for ever, which would be contrary to the intent of the parties and against reason (b).

So, a general power to make leases for one and twenty years, does not enable the party to make such a lease in reversion, by which a widow would be deprived of the benefit of her jointure, to secure which the land was settled by act of parliament: for, besides that jointures are favoured in law, the statute intended not to give him that liberty; and, it being a liberty and power, it must be strictly pursued (c).

If a man has power to make leases in possession or reversion, if he makes a lease in possession once, he shall never after make a lease in reversion; for he has an election to do the one or the other, but not both (d).

Devisee for life, with power to make leases for twenty-one years, whereupon the old accustomed rent shall be reserved, makes a lease for twenty-one years under the old rent, &c. and a year before the expiration of that lease, he makes a lease to another for twenty-one years to begin presently; this lease seems to be good within his power as a concurrent lease, because it is no charge upon the reversion, nor is there any more than twenty-one years in toto against the reversioner: but this power would not warrant the making of leases in reversion, for then he might charge the inheritance ad infinitum (e).

But notwithstanding, where one having power to make leases for twenty-one years in possession, made a lease to A. for twenty-one years in trust for the payment of debts, but the lease was made to commence from a time to come, and so not pursuant to the power, yet being made for the payment of debts, it was supported in equity (ƒ).

Under a power to lease in possession for one, two, or three lives, or for thirty years, or any other number of years determinable on one, two, or three lives; or in reversion for one, two, or three lives, or for thirty years, or any other number of years determinable on

(a) Com. Dig. tit. Estates. (G. 13.)

(6) Shecomb v. Hawkins. I Brownl. 148. Winter v. Loveday. 1 Com. R. 37.

(c) Countess of Sussex v. Wroth. Cro. Eliz. 5.

(d) Winter v. Loveday. Ld. Raym. 267. (e) Powell on Power. 428. Bac. Abr. tit. Leases. 417. Read and Nash's Case. Leon. 147, 8. Edwards v. Slater. Hard. 412.

(ƒ) Bac. Abr. Ibid. Cha. Ca. 10.

one, two, or three lives, a man cannot make an absolute lease in possession for thirty years; but an absolute lease in reversion, for thirty years, he may (a).

Where there is a power to grant leases in possession, but not by way of reversion or future interest, a lease per verba de præsenti, is not contrary to the power, although the estate, at the time of granting the lease, was held by tenants at will, or from year to year; if at the time, they received directions from the grantor of the lease to pay their rent to the lessee (b).

So, one under a power in a marriage settlement to lease for twenty-one years in possession, but not in reversion, grants a lease to his only daughter for twenty-one years, " to commence from the day of the date," adjudged a good lease (c).-It was held that the word "from" may mean either inclusive or exclusive, according to the context and subject-matter; and the Court will construe it so as to effectuate the deeds of parties, and not to destroy them. But the authority of this determination has been much questioned.

Under a power in a will to lease in possession, and not in reversion, a léase for years, executed the 29th of March to the then tenant in possession, habendum as to the arable from the 13th of February preceding, and as to the pasture from the 5th of April then next, &c. under a yearly rent, payable quarterly, on the 10th of July, 10th of October, 10th of January, and 10th of April, is void for the whole, though such lease were according to the custom of the country, and the same had been before granted by the person creating the power (d).

Under a power to demise for twenty-one years in possession, and not in reversion, a lease dated in fact on the 17th of February, 1802, habendum from the 25th of March next ensuing the date thereof is good, if not executed and delivered till after the 25th of March, for it then takes effect as a lease in possession with reference back to the date actually expressed (e).

One had power in effect to make leases for the lives of A. B. and C. and he makes a lease to them for their three lives, and the life of the longer liver of them: and this was held to be sufficient within the power, because, for three liver generally, and for three lives, and the longer liver of them, is all one, since without such words it would have gone to the survivor.-So, a lease to one for three lives, or to three for their lives, is all one (ƒ).

Under a power to tenant for life to lease for ninety-nine years, determinable on one, two, or three lives, a lease for ninety-nine

(a) Winter v. Loveday. Ld. Raymond. 267.

(6) Goodtitle v. Funucan. Doug. 565. (c) Pugh v. D, of Leeds. Cowp. 714. Freeman d. Vernon v. West.

Wils, 165.

E

(d) Doe d. Allen and others v. Calvert. 2 East. 376.

(e) Doe d. Coxe v. Day. 10 East. 427. (f) Bac. Abr. tit. Leases. Alsop v. Pine. 3 Keb. 44.

years, if E. H. should so long live, to commence from the death of 7. L. and W. R. (two lives on which a subsisting lease for years was determinable) was held ill (a).

Where a man makes a settlement of the reversion of lands, demised for life or years, to the use of one for life, with power to make leases generally, he may make a lease during the continuance of a former lease, to commence after the former; as otherwise his power would be ineffectual (b).

So, à fortiori, if a power expressly enable one to make leases in reversion, such a lease will of course be good by virtue thereof (c).

Under a power to make leases" for ninety-nine years, or three lives in possession, or for two lives in possession, and one in reversion, or for one life in possession, and two in reversion," the party, during the continuance of the first lease, made a lease for life to T.; and the question was, Whether the latter lease, being made whilst the lives in the former lease were in being, was authorized by the power? By two of the justices, out of three, it was held, that had the words, "in possession," and the words of the power been generally to make leases, the case had been strong in favour of the lease, the settlement being of a reversion; but the power being expressly to make leases in possession, the lease in reversion was not within it; and they noticed the particular wording of the power to make leases, namely, "for two lives in possession, and one in reversion;" or "one in possession, and two in reversion;" so that it appeared, that the scope and intent was, never to have an estate above three lives in being at one time (d).

The nature of a lease in reversion is this: In the most ample sense, that is said to be a lease in reversion, which hath its commencement at a future day, and then it is opposed to a lease in possession; for every lease that is not a lease in possession, in this sense is said to be a lease in reversion. Where mention is made of leases in reversion of a power, this shall be intended of leases to commence after the end of a present interest in being; which is the second notion of a lease in reversion. But as a lease for life cannot be made to commence at a future day, where a power is given to make leases for one or two lives in reversion and to make leases for years, the very same expression (lease in reversion) will have a different signification in the same conveyance: being applied to a lease for life, it shall be intended of a concurrent lease, or a lease of the reversion, viz. a lease of that land which is at the same time under a demise; and then it is not to commence after the end of the demise, but hath a present commencement, and is concurrent with the prior demise;

(a) Doe d. Copleston v. Hiern and another. 5 M. & S. 40.

(b) Earl of Coventry v. Dowager Countess

of Coventry. I Com. R. 313.

(c) Whitlock's Case. 3 Rep. 138.
(d) Powell on Powers. 420.

but being applied to a lease for years, it shall be intended of a lease which shall take its effect after the expiration or determination of a lease in being (a).

The law therefore, which is founded in reason and common sense, considers, "possessory" and "reversionary," according to the natural and ordinary import of those terms, (without annexing any artificial idea to them,) as including the simple ideas of time present, and time to come: and consequently, that every subsisting interest, or time not present, is an interest or time to come (b).

The circumstance of a second lease for years being granted to the same lessee who holds under a former lease, to commence after the expiration of such former lease, does not operate to make the latter a continuation of the former lease, where the terms are granted by different deeds; although the residue of the time to come after the former lease, together with the period for which the latter lease is granted, do not in length of time exceed the limits fixed by the power: for the latter will, notwithstanding, be considered as a reversionary lease, as much as if it had been granted to a reversionary lessee (c).

But, if under a power to demise for fourteen years, a lease were made of lands, &c. habendum, for seven years, and so from seven years to seven years, the latter, it seems, would be but a continuance of the former term, and an addition to it, and not a remainder or future interest (d).

If there be a power to make leases in possession expressly, which attaches upon an estate, part of which is in possession, and other part thereof in reversion, at the creation of the power: the donee of the power may immediately make leases in possession of the estate in reversion, as well as of that in possession: for in such case, the word "possession," in the power, refers to the lease, and not to the land (e).

But it seems, that if a power enable any one to make leases in reversion, as well as in possession, and some part of the land subject to the power be in possession, and other part of it in reversion, he cannot make a lease in possession and another lease in reversion of the same land; but his power to make leases in reversion, will be confined to such land as was not then in possession: and note the distinction between these two cases (ƒ).

If a power be created to enable a tenant for life, to make leases for one, two, or three lives, or for any term or number of years, deter

(@) Loveday v. Winter. 5 Mod. 245-378.

S. C. I Com. R. 37.

(6) Powell on Powers. 434.

(d) Hennings v. Brabason. I Lev. 45. Goodright d. Hall v. Richardson. 3 T.R. 462. (e) Powell on Powers. 425. Bac. Abr. tit.

(<) Doe d. Pulteney v. Lady Caven. 5T.R. Leases. Fox v. Rickwood. Cro. Jac. 347.

567.

(f) Powell on Powers. 427. Winter v. Loveday.. I Com. R. 37.

minable upon one, two, or three lives, in possession, &c. of such part or parts, and so much only of the manors, &c. of the creator of the power, as are then demised or granted for any such time, &c. no lands or hereditaments can be demised under such a power, but what are at the time of the execution of the power under lease for one, two, or three concurrent lives, or for any term of years, determinable upon one, two, or three concurrent lives; for the meaning of such restriction is, that the candles shall be all burning at the same time (a).

A power to make a lease for three lives was held not to be well executed in law, by a lease for ninety-nine years, determinable upon three lives. The reason seems to be, that the estates are different, one being a freehold, and the other a chattel. Such was the construction in Whitlock's case, and such seems now to be the settled rule of law, notwithstanding that the Judges, in one case thought the construction too nice, and contrary to the intent of the parties, and though determinations to the contrary are in the books (6).

An estate was settled on several tenants for life in succession with remainders in tail, with power to every tenant for life, from time to time by indenture to make leases for any term or number of years, not exceeding twenty-one years or for the life or lives of any one, two, or three persons, so as no greater estate than for three lives be at any one time in being in any part of the premises and so as the ancient yearly rent, &c. be reserved. Held first, that the power only authorized either a chattel lease not exceeding twenty-one years, or a freehold lease not exceeding three lives, and that a lease by tenant for life for ninety-nine years determinable on lives, as it might exceed twenty-one years, was void at law, and was not even good pro tanto for the twenty-one years; but the special verdict finding that the tenant in tail had received the rent reserved by such lease accruing after the death of the tenant for life who made it, and who had not given any notice to quit, Held secondly, that the receipt of rent was evidence of a tenancy, the particular description of which it was for the jury to decide upon, and for the defect of the special verdict in this respect, a venire de novo was awarded; but the Court intimated that under the circumstances of the case, and the disparity of the rent reserved being 41. 25., while the rack-rent value was 60l. a year (though one of the lessees had been presented by the homage as tenant after the death of the tenant for life, and admitted by the lord's steward, and the 41. 25. reserved was more than the ancient rent), a jury would be strongly advised, to decide against a tenancy from year to year (c).

(a) Powell on Powers. 541. Doe d. Wynd- | Boulton. 3 Keb. 745. et Bac. Abr. tit. ham v. Halcomb. 7 T. R. 713.

(b) Whitlock's Case. 8 Rep. 138. Rantle v. Popham. 2 Stran. 992. Breers v.

Leases.

(c) Roe d. Brune v. Prideaux. 10 East, 158.