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in the Court, it had been ruled, that the latter execution was good, and that the lease on being sealed, was but an escrow, where the letter of attorney was delivered at the same time (ah
On evidence at a trial in ejectment, the case was this:—A dean and chapter having a right to certain land, but being out of possession, sealed a lease with a letter of attorney to deliver it upon the land, which was done accordingly; and this was held to be a valid transaction, on the ground, that though putting the seal of a corporation aggregate to a deed be equivalent to a delivery, yet the letter of attorney to deliver it on the land, suspends the operation of it till actual delivery of it by the attorney (a).
A deed by a corporation out of possession, containing a lease of land and letter of attorney, is not good under the common seal, if the attorney does not deliver it upon the land (b).
It is a general rule, that a corporation cannot take but by their corporate name: it is also a general rule, that it cannot grant but by its proper name of incorporation, though every minute variation in the name is not material to avoid a grant (c).
As to naming the corporation, we shall only observe, that corporations aggregate, as dean and chapter, mayor and commonalty, warden and fellows, &c. may make or confirm leases, without expressing either the christian or surname of the dean, mayor, warden, &c. because in their politic capacity, as a corporation aggregate, they continue always the same, and are said never to die; but in leases or confirmations by a bishop, dean, mayor, &c. or other sole corporation, both their christian and surname, or at least their christian name, ought to be expressed, [as John, bishop of P.] because they are subject to death and succession, &c. and therefore must be particularly named, to shew whose lease, &c. it was, and so, some hold too, in the first case (c).
Where a corporation, declaring in a covenant by their modern name, stated that citizens, &c. were from time to time immemorial incorporated by divers names of corporation, and at the time of making the indenture by A. B. declared on, were known by a certain other name, by which name A. B. granted to them a certain watercourse, and covenanted for quiet enjoyment: held that the deed granting the watercourse to them by such name was evidence as against the defendants, who claimed under the grantor, that the corporation was known by that name at the time, upon an issue taken on that fact (d).
A corporation aggregate may take any chattel, as bonds, leases, &c. in its corporate capacity, which shall go in succession, because it is always in being (e).. To Kyd. on Corp. a 70. J (d) The Mayor of Carlisle v.Blamire. 8
(i) Com. Dig. tit. Fait. (a. 4.) I East. 487.
(;) a Iast.666.Bac.Ab. re leases. (0.3.) I (t) Bac. Abr.tit. Corpor. £, 4.
But regularly, no chattel shall go in succession, in case of a sole corporation. By custom, however, it may: as in the instance of the chamberlain of London.—Therefore, if a lease for years be made to a bishop and his successors, and the bishop dies, this shall not go to his successors, but to his executors (a).
A covenant in a corporation lease, to renew upon the falling in "of one life for ever:" there is no equity to extend it to the case where two are suffered to fall in, although a compensation be offered (d).
A lease by the warden and poor of an hospital under the corporation seal, made before the expiration of a former lease, to a lessee, who then had only a part interest in the first lease, but to whom the entire interest was assigned within three years afterwards, is binding upon the succeeding warden, and poor of the hospital (£).
This subject is connected with that which follows; other information therefore will be found under the next article.
Section XI. Of Leases by ecclesiastical Persons.
As to leases by ecclesiastical persons: bishops with the confirmation of the dean and chapter, parsons or vicars with the consent of their patrons and ordinaries, archdeacons, prebends, and such as are in the nature of prebends, as precentors, chantors, treasurers, chancellors, and such like; also, masters and governors, and fellows of any colleges or houses (by what name soever called), deans and chapters, masters or guardians of any hospital, and their brethren, or any other body politic, spiritual and ecclesiastical, (concurrentibus his qua in jure requiruntur) might, by the ancient common law, have made leases for lives or years, or any other estate of their spiritual or ecclesiastical living, for any time without suit or limitation (c).
By the before-mentioned statute, of 32 H. 8. c. 28. bishops and the rest of the said spiritual persons (except parsons and vicars) may, at this day, make leases of their spiritual livings for three lives, or twentyone years, and such leases will be good both against themselves and their successors. But, in order to be binding, they must have the effect of all the qualities or properties before-mentioned and required by the said statute, in the lease made by tenant in tail, and be made after that pattern. But with respect to the old lease being surrendered, there is an exception in favour of a bishop; for if he make a lease for twenty-one years to come to one man, and then, within a year after, make another lease to another for twenty-one years, to begin from the making of it, this, so as it be confirmed by the dean and chapter, is resolved to be a good lease. A lease by a bishop, wherein more
(w) Barley v. Corporation of Leominster. I (4) Grumbrell v. Roper. 3 B A.711. 3 Bro. K. 5 j8. I (0 Shep. Touch. 381.
than the old rent was reserved, was held good; two of the Judges however, who were absent when the case was argued, were of a different opinion (a).
Next follows, in order of time, the disabling or restraining statute, I Eliz. c. 19. (made entirely for the benefit of the successor) which enacts, that all grants by archbishops and bishops, (which include even those confirmed by the dean and chapter; the which were good at common law) other than for the term of one and twenty years, or three lives from the making, without reserving the usual rent, shall be void. Concurrent leases, if confirmed by the dean and chapter, are held to be within the exception of this statute, and therefore valid; provided they do not exceed (together with the lease in being) the term permitted by the act. But, by a saving expressly made, the statute did not extend to any grants made by any bishop to the crown: the statute 1 J. I. c. 3. however extends the prohibition to grants and leases made to the king, as well as any of his subjects.—Next comes the statute 13 Eliz. c. 10. explained and enforced by the statutes 14 Eliz. c. II. & 14. 18 Eliz. c. 11. and 43 E/iz. e. 29 which extends the restrictions laid by the last-mentioned statute on bishops to certain other inferior corporations, both sole and aggregate (*).
These statutes are, however, in some respects altered by star. 39 & 40 G. 3 c. 41. /. 1. whereby it is enacted, that where any part of the possessions of any archbishop, bishop, master, and fellows, dean and chapter, master or guardian of any hospital, or any other person or persons, or body or bodies politic or corporate, having any ecclesiastical living, shall be demised by several leases which was formerly; demised by one, or where a part shall be demised for less than the ancient rent and the residue shall be retained in the possession of the lessor; the several rents reserved on the separate demises of the specific parts shall be taken to be the ancient rents within the meaning of the statutes 32 H. 8. c. 28. 1 Eliz. c. 19. 13 Eliz. c. 10. and 14 Eliz. c. II.
Section 2. provides, that no demise made before passing the act shall be valid, unless the several rents reserved upon the separate demises of separate parts of tenements accustomably demised under one lease, or if part be reserved in the possession of the lessor or lessors, unless the rent reserved on the parts demised shall be at least so far equal to the whole amount of the ancient rent or rents, that the part not demised shall be sufficient to answer the difference.
Section 3. provides, that where the whole of such demises shall in future be demised in parts, the aggregate rents reserved shall not be less than the accustomed old rent, and so in proportion, where a part shall be retained in possession by the lessor.
(a) TrmrfnetdU v. I.yiiam. 1 Mod. 57. (J) a Bl. Com. 3*0.
Section 4. provides, that no greater proportion of the accustomed rent shall be reserved by any separate lease than the part of the premises demised will bear.
Section 5. provides, that where a specific thing shall have been reserved by the lessor, it may be charged on a competent part of the premises; and in case such provision shall have been made for payment of any sum of money, stipend, &c. it shall be deemed lawful if the lands, &c. charged be of greater annual value, exclusive of the rent reserved.
Section 6. provides, that no lease shall be confirmed whereon no annual rent is reserved to the lessors, &c.
Section 7. provides, that the act shall not authorize the reservation of any rent, on any such lease, made by any master, &c. of any college, in any other manner than required by the 18 E/iz. c. 6.
Section 8. provides, that where payments have been reserved to vicars, curates, schoolmasters, and other persons than the lessor, provision shall be made in the leases for the future payment thereof out of premises of three times the annual value, exclusive of the rent, except (Section 9.) such payment depends only on the will of the person granting or renewing the lease.
Section 10. provides, that persons holding such leases in trust, or granting under-leases of specific parts under covenants of renewal, may surrender them, in order that separate leases may be granted by the original lessors to the cestui que trusts, and under-leases, on reasonable terms, subject to the accustomed rent, &c.; and every such surrender, and the new leases granted thereupon, shall be good in law and equity, notwithstanding such under leases and cestui que trusts may be infants, issue unborn, &x. or other persons incapacitated to act for themselves; provided such new leases be for their benefit, and such be expressly declared in the body of each lease.
From laying all which together, we may collect, that all colleges, cathedrals, and other ecclesiastical, or eleemosynary corporations, and all parsons and vicars are restrained from making any leases of their lands, unless under the following regulations: 1. They must not exceed twenty-one years, or three lives, from the making. 2. The accustomed rent, or more, must be yearly reserved thereon; respecting which, the first sections of 39 and 40 G. 3. are particularly explanatory. 3. Houses in corporations or market-towns may be let for forty years, provided they be not the mansion-houses of the lessors, nor have above ten acres of ground belonging to them, and provided the lessee be bound to keep them in repair; and they may also be alienated in fee simple for lands of equal value in recompense (a); therefore, a bond or covenant for rendering or making a lease within a city or town may be enforced (J). 4. Where there is an old lease (a) Crane v. Taylor. Hub. Mp (*) a Bl. Com. 3 Jo.
in being, no concurrent lease shall be made, unless where the old one will expire within three years (a). Since the Statute of Frauds and Perjuries, (29 C. 2. c. 3.) which requires all surrenders to be in writing, it was usual to have a covenant from the parson or corporation to whom the surrender was made, that they would, within such a time, make a new lease, under such and such terms: the statute, however, does not extend to surrenders in law, by taking a new lease in writing (i). No lease (by the equity of the statute) shall be made without impeachment of waste. 6. All bonds and covenants,' tending to frustrate the provisions of the statutes of 13 and 18 Eliz. shall be void (c).
As to leases, therefore, made by parsons, vicars, and others, having benefices or promotions with cure of souls, these things are to be observed: 1. That parsons and vicars are expressly excepted out of 32 H. 3. c. 28. so that they are not, as other sole corporations, enabled by that statute to make any leases to bind their successors without the confirmation of the patron and ordinary, but remain as they did, perfectly at common law, for any thing in that statute. 2. That an annual rent must be reserved to the lessor or lessors, otherwise the lease cannot be confirmed. 3. That they are not restrained by 13 Eliz. c. 10. from making leases for twenty-one years, or three lives; but then such leases must not only be confirmed by the patron and ordinary, but must also be made in conformity to the rules or qualities before mentioned, otherwise they will not bind the successor. 4. They, as well as others, are restrained by 13 Eliz. c. 10. from making leases for any longer time, notwithstanding any confirmation, or conformity to those rules or qualities (d).
Another restriction occurs with regard to college leases (e), which is created by stat. 18 Eliz. c. 6. (and is specially exempted from the operation of the 39 & 40 G. 3. c. 41. by s. 7. of that Act,) by which it is directed, that one-third of the old rent then paid, should for the future be reserved in wheat or malt, reserving a quarter of wheat for each 6s. 8d. or a quarter of malt for every 5/. or that the lessees should pay the same according to the price that wheat and malt should be sold for in the market next adjoining to the respective colleges, on the market day before the rent becomes due. This sagacious plan is said to have been the invention of Lord Treasurer Burleigh and Sir Thomas Smith, then principal Secretary of State; who observing how greatly the value of money had sunk, and the price of all provisions risen, by the quantity of bullion imported from the newly found Indies, devised this method for upholding the revenues of colleges. Their foresight and penetration have, in this respect, been very
(a) Bac. Abr. tit. Leases. (E. 3.) I (d) Bac. Abr. tit. Leases. (F.)
(4) 39 & 40 G. 3. c. 41. s. 10. J (#) a BL Com. $%i.
(c) » Bl. Com. 320.