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powers to lease, habendum for lives or years, may be either absolutely for one, two, or three lives; or for an absolute term of years, as for thirty years; or qualified, as for any number of years, determinable upon one, two", or three lives.
A man, having a power to grant leases, may do less than such power enables him to do; or, if he do more, it shall be good to the extent of his power.
Thus, under a power to lease "for the term of 21 years," the party may grant a lease for 14 (a). So, where the city of London under a power granted by act of parliament to lease for one and one-andtwenty years, granted a lease for one-and-twenty, it was held no variance upon oyer of the indenture in which such power was recited (3).
So, if a man hath power to lease for ten years, and he leased for twenty years, the lease for twenty years shall be good for ten years of the twenty in equity; and so it has been settled several times (c).
So, where tenant for life had power to let leases for twenty-one years in possession, and he made a lease for twenty-six years, without referring to the power; it was held that the first lease should be presumed to have been surrendered, and the remainder-man should be bound for twenty-one years of the new lease (d).
If a man pursues all the requisites within his power, though he does it by more deeds than are necessary, it will be good (e).
A power may be executed at different times, if not fully executed at first, provided that the party, in the whole execution, does not transgress the limits of the power (f).
Therefore if a woman, seised of an estate for life, with a power to lease for three lives, or twenty-one years, marries, and then she and her husband join in making the lease, and the husband and wife both die before the lease is expired; rhere, though the husband, in right of his wife, and she in her own, are possessed of an estate for life, and therefore can as owners make a lease, and there appears no intention of the parties, (imagining perhaps that they should have outlived the lease,) that this lease should be made by virtue of the power; yet because the lease, supposing it made by them as owners, cannot have the effect the parties intended, for some it would have, (viz. it would be a good lease during the lives of the husband and wife,) yet because it cannot have all, it shall be esteemed to be made by virtue of the power (g).
If the deed has not a full operation, except where it is in execution of the power, it will notwithstanding be good: as if tenant for life make a lease, without taking notice of his power, it shall be an exe
cution of his power to make leases; for otherwise the lease will not have an effectual continuance (a).
5. With respect to the rent.
There are two methods of leasing in common use in this kingdom; at the best rent, and upon fines, which as the lives or leases drop, are considered among the annual profits.
The latter mode is not very common in England, where the power of leasing usually introduced in settlements requires the best rent to be reserved, and expressly prohibits the taking of any fine or premium (£).
Where a lease is made under a power requiring the best rent to be reserved, the question whether the best rent has been reserved must be left to a jury.—Improvements by the tenant will not authorize a lease at an undervalue, and if a fine be taken the lease cannot be supported, though the rent be ever so considerable. The surrender of an existing lease, and the grant of a new one at an increased rent, is not equivalent to taking a fine (£).
Power to lease so that there be reserved the best rent «' without taking any sum or sums of money, or other thing, for or in lieu of a fine;" party granted a lease by indenture dated 15 th October, to commence, as to the meadow land, from 13th February last, as to the pasturage, from 25th of March, and as to messuage, from 12th of May, at a certain rent, payable half yearly, on nth November and 3jth March; and reserved the first half year payable on the next 11 th of November, twenty-seven days after the date of the lease; this was held not to be taking a sum of money for a fine, being in consideration of a previous occupation (c).
A power to make leases of lands in A. at the most rent, and lands in B. at "the usual, or other the most rent" was held to warrant a lease of lands in B. upon a fine, and at a reserved rent, which rent exceeded the rent received upon a former lease, in being at the time of the creation of the power, and upon which lease the party creating the power had also taken a fine (d).
In a power to grant building leases, the term, best rent, must, although not so expressed, be understood to mean the best rent, which can be obtained with reference to the gross sum to be laid out by the tenant in buildings or improvements (e).
A lease at 43/. a year, granted under a power directing the best rent to be reserved, cannot be impeached merely by shewing that the lessor rejected at the time two specific offers, one of jo/, and another from sol. to 60/. from other tenants, though the responsibility of such
other tenants could not be disproved; for in the exercise of such a power, where fairly intended and no fine or other collateral consideration is received or injurious partiality plainly manifested by the lessor, all other requisites of a good tenant are to be regarded, as well as the mere amount of the rent offered, unless something extravagantly wrong in the bargain for rent be shewn. The best rent means the best rack-rent that can reasonably be required by a landlord, taking all the requisites of a good tenant for the permanent benefit of the estate into the account (a).
The sufficiency of the rent must be governed by the consideration on whom the onus of the repair is thrown (b).
A power was given to lease for twenty-one years reserving the best rent, so as the lease should not contain any clause whereby authority should be given to the lessee to commit waste, or whereby he should be exempted from punishment for committing waste, and so as such lease should contain such other conditions, covenants and restrictions, as were generally inserted according to the usage of countries where the premises were situate. It was held that a lease was good, though the lessor thereby took on himself the repairs of the mansion-house (excepting the glass windows), and covenanted that if he did not repair it within three months after notice, the tenant might do so, and deduct the expense out of the rent reserved; and though the lessor covenanted in consideration of a large sum to be laid out by the lessee in the repair of the premises in the first instance, to renew during his the lessor's life, at the request of the lessee, his executors, &c. on the same terms; because this covenant only bound the lessor himself, and if the best rent were not reserved upon such renewal, the lease would be void against the remainder-man (h).
If a power be to make leases, rendering the ancient rent, a lease which does not reserve it will be void: as if the party leases two acres with other land, and reserves the rent of the two acres for the whole (c). By a reservation in a power to lease of the ancient and accustomed rent, is to be understood that which was reserved at the creation of the power, if a lease were then in being; or that which was last before reserved, if no lease were then in being; for he who created such a power intended no more than that the lessor and lessee should not be able to put the estate in a worse condition than it was in when the power was created, but should keep it in the same plight and condition at least, as it was in when so settled. This was the opinion of Lord Holt, who also observed, that without a certainty, the power could not be executed even by reserving a sum in particular; and, therefore, he gave it as his opinion, that upon any settlement where
sum of money as should amount to the best and most improved yearly rent:" both these leases were held to be void as against the remainderman; the first not being warranted by the power, and the other for the uncertainty of it (a).
So, where tenant for life had made a lease of the lands not usually letten, reserving therefore the best and most approved rents for the same according to the words of the power; this was held to be so utterly uncertain, that nothing was offered to support it (b).
But where such rent is ascertainable, it is otherwise, for id cerium est quod cerium reddi potest.—Therefore, where a power was, by a settlement, to make leases of land anciently demised, reserving at least lid. for every Cheshire acre, and a lease was made of all the lands anciently demised, reserving all the rent intended to be reserved: though these words were very general and uncertain in themselves, the reservation was held good, because it might easily be ascertained by the reference of the lid, at least for every Cheshire acre, for it is known what a Cheshire acre is, and that may by admeasurement be at all times ascertained, and depends not upon uncertain evidence (c).
If the lease be of lands subjected to a power, together with other lands not so subjected, and there be equivocal words, under which the reservation of the rent may be referred to, namely, whether to the premises on which the power attaches, or otherwise, and the lease cannot take effect unless the rent be to issue out of those premises: then the better opinion seems to be, that the reservation shall be taken as referable only to the premises subjected to the power, and that by that means the lease may be made good (d).
When a power was to lease certain lands at the ancient rent; and a lease was granted of several parcels of the lands, receiving a separate rent for each separate parcel; and the lease was void as to one of the parcels because the ancient rent for that parcel was not reserved; the lease was nevertheless held good for the other parcels upon which the ancient rent was reserved (e).
If there be a difference as to the time of the payment of the rent, so that it be not payable at the same periods as anciently, that will vitiate a lease, under a power restricted to be made, rendering the true and ancient rent (f). Thus a reservation of the rent at two days, where the rent was formerly reserved and payable at four days, was held, in Mountjoy's case, to make the grant and render void; because it was ad nocumentum, to the injury of the heirs in tail, which was
restrained by the statute that created the power: for it was more beneficial for them to have it paid at four feasts than two; and all beneficial qualities of the rent ought to be reserved and observed (a).
In this respect, leases under powers in settlements differ from ecclesiastical leases under 13 Eliz. (of which hereafter,) for in them a reservation at two days when the rent was payable formerly at four days does not vitiate the lease, because the statute does not avoid such lease if the accustomed yearly rent or more be reserved (b).
The whole rent must be payable annually during the whole term; for the design of the donor is not answered, unless a continual revenue be yearly payable by compulsion of law, and not in expectancy, or in futuro (c).
But, under a power to make leases, reserving the ancient yearly rent annually, yet if it were reserved upon a day before the year was up, as if the year ended at Christmas, and it was reserved at Michael~ ms, it would be well pursuant to the power (d).
Heriots and the like need not be reserved in a lease made under a power, restrained to the rendering the true and ancient rent; for they are casual and accidental services, and therefore fall not within the meaning of such restriction (b).
Although in common law conveyances, no rent can be reserved but to the lessor, donor, or feoffor, and his heirs, who are privies in blood, and not to any who is privy in estate, as, to him in reversion, remainder, C. yet in the case of powers the reservation by tenant for life is good, and shall enure as rent to the remainder-man, and he may distrain for it (e) ; and this, though it be reserved to such tenant for life, and his heirs; for powers take effect through the medium of the Statute of Uses, which executes the possession according to the limitation of the use, and such lease, when made, takes effect, out of the uses of the settlement by which it is created (f).
Thus, where a question was, whether the words of the reservation did not make that which was called a rent, to be only a sum in gross, and not rent, and so turn the reservation of rent into a condition ? the Court held that the land was distrainable for it as for rent, and that it was not a payment upon condition (g); one reason for which was, that it was not the intent of those who were parties to the indenture to make it a condition, but rather to make a limitation of the rent for the uses mentioned; and that it could not ensue the nature of a condition, for it could not be taken as a condition at common law, because