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respect to her separate property, is competent to act in all respects, as if she were a feme sole (a).
By the common law, if a husband seised of lands of inheritance in right of his wife, make a lease thereof by indenture or deed-poll reserving rent, this, though voidable, will be good, unless the wife by some act after the husband's death shews her dissent thereto; for if she accept rent which becomes due after his death, the lease is thereby become absolute and unavoidable.
If a widow chooses to avoid such lease, notwithstanding her having joined therein, then it is so absolutely defeated ab initio as to her, that she may plead non demisit; because, as to any interest that passed from her she did not demise, nor any truth had the power to contract, but the whole interest passed from the husband, and the lessee is in merely by virtue of the husband's contract; and yet because the lessee, by his acceptance of such lease, admitted them both to have power to join therein, he must accordingly during the coverture declare of the lease by them both as an essential part of the description of the lease whereby he makes title (b). y.y
But the indenture or deed-poll, whereby such lease was made, being no essential part either of the description or lease itself, because the husband, during the coverture, might have made it by parol only; therefore it is not necessary nor usual for the lessee in his declaration to make any mention thereof (b).
A lease made by husband and wife of the lands of the wife, and delivered by letter of attorney in both their names, will support a declaration in ejectment on a lease by the husband only; for the delivery by attorney being void as to the wife, it is the lease of the husband only (c).
But if the husband and wife join in a lease for years by parol of the wife's lands rendering rent, or if the husband solely make such parol lease, rendering rent, this determines absolutely by his death, so that no acceptance of rent, or other act done by the wife, will prevent its avoidance; for a lease for years being an immediate contract for, or disposition of the land itself, if the same appears in writing duly executed, so that there can be no variation or deviation therefrom attempted by the lessee after the husband's death •, the law so far gives countenance to such lease for the encouragement of farmers and husbandmen, that the same shall continue in force till the wife's actual dissent or disagreement thereto; but because there can be no such certainty of the terms of a parol lease, when nothing appears in writing to manifest them, therefore they, like other charges of the husband, fall off or drop with his estate or interest therein (b).
(») Com. Dig. Baron and Feme. (P.I.) j (') Gardiner v. Norman. Cro. Jac. 617. (*) Bac. Abr. tit. Leases. (C. I.)
If the husband and wife make a lease for years of the wife's land, without reservation of any rent, yet it hath been adjudged that this is a good lease by them both during the coverture, and that the wife, after the husband's death, may affirm the same by acceptance of fealty, or bringing an action of waste: so that the reservation of rent is not essential to the existence or continuance of such lease after the husband's death, but only a writing attesting the same, and the wife's allowance and approbation thereof; for as the husband made such lease at first without any reservation of rent, so the wife, if she thinks fit, may continue the lessee in possession after his death upon the same terms (a).
A husband seised in right of his wife cannot grant copies in his own name, but the wife ought to join (b).
But if a husband seised of a copyhold in right of his wife, make a lease not warranted by the custom, it is a forfeiture of the estate during the life of the husband only; for it is not a continuing detriment to the inheritance, or such an act as tends to the destruction of the manor, in which case it would bind the inheritance of the wife after the husband's death (a).
A husband letting copyhold lands of which he is seised in right of his wife, by indenture, will not destroy the custom of demising by copy, because the wife may enter after his death and avoid such lease (a).
A woman guardian in socage, marries and joins with her husband by indenture, in making a lease for years of the ward's land, yet after her husband's death she may avoid the same in right of the infant whose guardian she still continues to be, and to whom, when he comes of age, she must be accountable for the profits (a).
Touching leases made by husband and wife, pursuant to the statute 32 H. 8. c. 28. [concerning which statute vide ante,'] the husband may at this day, without fine or recovery, make leases of the lands, tenements, or hereditaments, whereof he hath any estate of inheritance in fee-simple or fee-tail in right of his wife, made before or after the coverture, so as there be in such leases observed the conditions or limitations before required in the leases made by tenant in tail; and so that the wife join in the same deed, and be made party thereunto, and seal and deliver the same deed herself in person: for if a man and his wife make a letter of attorney to another to deliver the lease upon the land, this lease is not a good lease from the wife warranted by the statute; and yet then, as in other like cases, of leases not warranted by the statute, it is a good lease against the husband. When the lease is such an one as is warranted by the statute, it binds the
(«) Bach Abr. til. Leases. (C. I.) (1) Skophnc v.Roydler. Cro. Jac. 98-99.
husband and wife both, and the heirs of the wife; but if it be an estate-tail, it doth not bind the donor nor him in remainder (a).
Husband and wife, the husband purchased land to him and his wife, and their heirs, and afterwards he, without his wife, lets this land for sixty years, if they should so long live, rendering 280/. per ann. rent at the two usual feasts, during the term, then the husband dies, and if this lease should bind the wife by the 32 H. 8. e. 28. was the question; and it was held by three justices that it should: for the wife is appointed to join only when she hath the sole inheritance by the appointment of the rent to be reserved to the heirs of the wife, and not where she hath a joint-estate, as in this case; and then clearly by the body of the act, the lease by the husband solely is good, and the proviso does not extend to it; in truth, the lease determined by the death of either of them (6).
A husband possessed of a term, in right of his wife, may dispose of the whole or any part of it.
So, he may make a lease to commence after his death, and it will be good, though the wife survive; for, having an interest to dispose of in his life, he might dispose of all the term, and it should bind the feme: so, when he hath disposed by an act executed in his life of the interest of the term, and hath created a term in interest, this is as good as if he had granted all the term (c).
But, if the wife had only the possibility of a term, the husband cannot dispose of it: as if there be a lease to a husband and wife for their lives, and afterwards to the executor of the survivor, the husband cannot grant this executory interest (e). Therefore he cannot grant a lease to endure beyond both their lives.
It is now settled that a man possessed of a term of years in right of his wife as executrix of her former husband, has power to grant and convey the same: for the husband may administer in right of his wife without her consent, though she cannot administer without the consent of her husband; and if the husband can administer, jure uxoris, without her consent, it is incident to the power of administration to sell or dispose of a term of years (d).
If the husband possessed of a term for seventy years in right of his wife, make a lease of those lands for twenty years, to begin after his death, this is good and shall bind the wife; because the term being but a chattel, he had power to dispose of it wholly, and by consequence may dispose of any lesser interest thereout as he thinks fit, and this being a present disposition, which he cannot revoke, binds the interest of the lands immediately, though it takes not effect in possession till after his death: this differs therefore from a devise of such term, or any part thereof by the husband, by his will; for that not taking effect, nor binding the interest at all till after his death, comes too late to prevent the operation of law, which, at the instant of death, immediately casts it upon the wife surviving, and so defeats and destroys the operation of the devise (a).
(a) Shep. Touch. »8o.
(i) Bach. Abr. tit. Leases. (C. 1.)
to Com. Dig. tit. Baron and Feme. (E. 2.)
Grote v. Lowcroft. Cro. Elii. 187.
(</) Thru tout d. Levin v. Coppin. Wils. »77- S. C. * Bl. R. 801.
But as to the residue of the term, whereof the husband makes no disposition in his life-time, the wife, if she survives, will be entitled to it , because as to that, the law is left to take place, as it would have done for the whole, if he had not prevented it by such his disposition of part (a).
Yet if the husband demise for part of the wife's term, rendering rent, the rent shall go to his executor or administrator, though the wife survive (J).
Yet if the husband had granted away the whole term upon condition and died, though the condition were afterwards broken, and his executors entered for breach thereof, the wife would, notwithstanding, be for ever barred to claim any interest in the said term: because there was a total disposition thereof by the husband in his life-time, and the breach or non-performance of the condition was perfectly contingent and uncertain: besides that, the breach of the condition happened not till after his death, and so the disposition continued perfect and uninterrupted during his life; for if the condition had been broken during his life, and he himself had entered for breach thereof, it might be a great question if the wife surviving should not have the term after his death, because by his re-entry for the condition broken he is restored to the whole term in statu quo, and then being possessed of it in right of his wife as he was before, it seems but reasonable that the wife should have it, if she survived the husband, as she would have had if no such disposition had been made, since that disposition is now defeated and gone (c).
Section XIV. Of Leases by infants and Guardians.
Of Infants.—With respect to the power that an infant possesses to grant a lease that shall be binding, the cases in the books are somewhat contradictory, and the point is hitherto unsettled. The better opinion however seems to be, that leases made by infants are not absolutely void, but voidable on their attaining their majority.
"All gifts, grants, or deeds, made by infants, by matter in deed, or in writing, which do take effect by delivery of his hand, are voidable by himself, by his heirs, and by those who have his estate (</)." The words "do take effect," are the essential part of the definition, and
exclude letters of attorney, or deeds which delegate a mere power and convey no interest (a).
All the books agree, that if an infant make a lease for years, he cannot plead non est factum, but must avoid it by pleading the special matter of his infancy; which favours the opinion of those who hold, that the lease is not absolutely void; for if it were absolutely void, there is no good reason why he should not plead non est factum, as a feme-covert certainly may do in such a case, whose lease is absolutely void, so that no acceptance of rent after the husband's death can make it good (b).
An infant made a lease for years, and at full age, said to the lessee, "God give you joy of it;" this was holden by Mead a good affirmation of the lease; for this is a usual compliment to express one's assent and approbation of what is done (b).
What seems decisive upon the question is, that "the lessee can in no case avoid the lease, on account of the infancy of the lessor," which shews it not to be void, but voidable only; and it is better for infants that they should have an election (a).
The Court of Chancery will decree building leases for sixty years of infants' estates, when it appears to be for their good (c).
Where an infant makes a lease for years, reserving rent, and the lessee enters, the infant hath election to allow him to be his tenant, or to be his disseisor, whichever is most to his advantage; so, where one enters, and claims as guardian, and occupies, the infant may allow him to be either disseisor, or accomptant, whichever shall be for his best advantage (d).
Of Guardians.—In case there be no testamentary guardian nor a mother, if the infant has any socage land and is of the age of twelve if female, or fourteen if male, he or she is allowed to choose his or her guardian, as is frequently done on circuit, and is the constant practice, and what the Court of Chancery frequently calls on infants to do; though this is still liable to any reasonable objection made to such choice (e).
A guardian in socage may make leases for years in his own name, and the lessee may maintain ejectment thereupon (f); for this guardian is a person appointed not by any special designation of the party, but by the wisdom of the law, in respect of the lands descended to the infant; so that where no lands descend, there can be no such guardian (g): and his office originally was to instruct the ward in the arts of tillage and husbandry, that when he came of age he might be