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the better able to perform those services to his lord, whereby he held his own land; and though the office now be in some measure changed, as the nature of the tenure itself is since the time that the socage tenants bought off their personal labours and services with an annual rent to the lord, yet it is still called socage tenure, and the guardian in socage is still only where lands of that kind (as most of the lands in England now are) descend to the heir within age; and though the heir after fourteen may choose his own guardian, who shall continue till he is twenty-one, yet as well the guardian before fourteen, as he whom the infant shall think fit to choose after fourteen, are both of the same nature, and have the same office and employment assigned to them by the law, without any intervention or direction of the infant himself; for they were appointed, because the infant, in regard of his minority, was supposed incapable of managing himself and his estate, and consequently derive their authority, not from the infant, but from the law; and that is the reason they transact all affairs in their own name, and not in the name of the infant, as they would be obliged to do, if their authority were derived from him.
From what has been said, it appears that a guardian in socage hath not only a bare authority, but an interest in the lands descended, and therefore during that time may make leases for years in his own name, as any other who hath an interest in lands may do; for he is quasi linear pro tempore. If he makes leases for years to continue beyond the time of his guardianship, such leases seem not to be absolutely void by the infant's coming of age, but only voidable by him, if he thinks fit; for they are not derived barely out of the interest of the guardian, or to be measured thereby, but take effect also by virtue of his authority, which, for the time, was general and absolute; and therefore all lawful acts done during the continuance of that authority, are good, and may subsist after the authority itself, by which they were done, is determined, and consequently the infant, when he comes of age, may by acceptance of rent, or other act, if he thinks fit, make such leases good and unavoidable (a).
A testamentary guardian, or one appointed pursuant to the statute 12 Car. a. c. 24. J. 8. 9. 10. 11, is the same in office and interest as a guardian in socage.
But a guardian by nurture cannot make any leases for years, either in his own name, or in the name of the infant, for he hath only the care of the person and education of the infant, and hath nothing to do with the lands merely in virtue of his office; for such guardian may be, though-the infant has no lands at all, which a guardian in socage cannot (a). But such guardian, it seems, may make leases at will. Though every guardian, except a guardian in socage, is but
(ay B?c. Abr. tit, Leases, (C. 9.)
tenant at will, and by consequence cannot make a lease for any certain time or number of years; yet if a lease be made by such guardian, the lessee is estopped to say, that being only tenant at will, he had no power to make the lease (a).
A lease renewed by a guardian for an infant's benefit, shall follow the nature of the original lease: and in general a guardian or trustee shall not alter the nature of the infant's property, so as to change the right of succession to it in case of the infant's death, unless by some act manifestly for the advantage of the infant at the time (b).
A devise to a person as guardian, that he may "receive set and let" for his ward, gives him an authority only, and not an interest (c).
Section XV. Of Leases by Executors and Administrators.
Executors and administrators, as they may dispose absolutely of terms of years vested in them in right of their testators, or intestates; so may they lease the same for any fewer number of years, and the rent reserved on such leases shall be assets in their hands, and go in a course of administration (J).
If administration be granted generally to one during the minority of an infant executor, the grantee has authority to make leases of any term vested in such infant, which shall be good till he comes of age; and, as it has been also holden by some, till he avoid them by actual entry (J).
Section XVI. Of Leases by Mortgagors and Mortgagees.
The mortgagor has no power of making leases to bind the mortgagee, but he may make leases which will bind his equity of redemption.
Where the mortgagor is himself the occupier of the estate, he may be considered as tenant at will: but he cannot be so considered if there be an under-tenant, that is a tenant in possession under a lease prior to the mortgage: for there can be no such thing as an under-tenant to a tenant at will; the demise itself would amount to a determination of the will(*).
If, therefore, a mortgagor, who continues in possession by consent of the mortgagee, make a lease for years, and the lessee enter, claiming nothing but his lease, he is not a disseisor, but on payment and acceptance of his rent, a tenant at will; and if the mortgagor enter after the expiration of the lease, he shall be tenant at will again to the
mortgagee: and his acts being by permission of the mortgagee,, shall not turn to his prejudice (a).
But if a mortgage be made with a proviso and agreement between the parties, that the mortgagee, his heirs and assigns, "shall not intermeddle with the actual possession of the premises, or perception of the rents," until default of payment, the mortgagor is a tenant at sufferance to the mortgagee, and not a tenant at will, as he would have been on a covenant that he should take the profits till default of payment (a).
Indeed the legal interest of a mortgagor in possession, has been held to be inferior to that of a mere strict tenant at will (b). However, as to what in strictness is the interest of a mortgagor, after the usual time given for the payment is expired, the estate becomes absolute in the mortgagee at law.
As all leases, or other interests in the land, created by the mortgagor, subsequently to the mortgage, and before the foreclosure, are void against the mortgagee, he may treat the tenants under such leases, or persons claiming such interests, as trespassers, disseisors, and wrong-doers (b), or not, at his election; unless where the acts of the mortgagor have been done with the permission of the mortgagee.
If the mortgagee permit the lessee to enjoy his lease, the mortgagor may thenceforth be considered as a receiver of the rent, or, in some sort, a trustee for the mortgagee, who may at any time countermand the implied authority, by giving notice to the tenant not to pay the rent to the mortgagor any longer (£). But if the mortgagee elect the other alternative, the lessee may be turned out by ejectment (b).
Though the tenant be in possession under a lease prior to the mortgage, yet the mortgagee, after giving notice, is entitled to the rent in arrear at the time of the notice, as well as to what shall accrue afterwards, and he may distrain for it after such notice (c).
But where there is a tenant from year to year, and the landlord mortgages pending the year, the tenant is entitled to six months' notice, before he can be evicted by the mortgagee (J),
With respect to leases by the mortgagee, he cannot, before foreclosure of the equity of redemption, make a lease for years of the premises in mortgage to bind the mortgagor; unless to avoid an apparent loss and merely in necessity (e).
If mortgagor of a term join with the mortgagee in a lease for a shorter term, in which the covenants for the rents and repairs are only with the mortgagor and his assigns, and the interests of the mortgagor
and mortgagee become extinguished during the lease by the reversioner requiring their estates, still the mortgagor may maintain an action of covenant against the lessee, the covenant being in gross (a).
But if a mortgagor and mortgagee make a lease in which the covenants for the rent and repairs are only with the mortgagor and his assigns, the assignees of the mortgagee cannot maintain an action for the breach of these covenants on stat. 32 H. 8. c. 34.. because they are collateral to his grantor's interest in the land, and therefore do not run with it (b).
A Court of equity refused on bill to compel an assignee of a term in mortgage to discover his assignment; the object of the lessor in requiring it being to make him liable to the covenants of the mortgagor, although he had not taken actual possession of the premises. The Court dismissed the bill, and left the party to his remedy at law (c).
But in a subsequent case, where one hundred pounds were lent by way of mortgage upon an assignment of a building lease, and the mortgagee never entered nor took possession, but lost the money lent, the defendant in equity having recovered against the mortgagee, as assignee, the rent reserved on the lease, the bill was to be relieved against the recovery at law; and the Court dismissed it, saying, the mortgagee was ill advised to take an assignment of the whole term (c).
Upon re-consideration of this question in the case, of Eaton against Jacques, it was determined that a mortgagee, assignee of a term for years, should not be liable to the covenants in the lease, unless he had taken actual possession. But this doctrine no longer obtains (c).
Indeed that the assignee is liable only in respect of actual possession is certainly contradicted by a case which arose on a bill by the executor of a lessor against the depositary of a lease to secure to him a debt, for the specific performance of a covenant to rebuild houses upon the premises in the eleventh year of the term, which was a term of seventy-one years; to be held for the first ten years at a pecuniary rent, for the eleventh year at a pepper-corn rent, and for the rest of the term at a pecuniary rent. The defendant, by his answer, stated the fact of the disposal by way of mortgage, and insisted that having no title but as mortgagee, he was not bound to rebuild. Lord Thur* low (Chan.) thought that there could not be a decree to rebuild, as he could no more undertake the conduct of a rebuilding than of a repair. But his lordship said, it was no matter whether the defendant took it as a pledge, or as a purchase, for he could not take the estate as a security, and refuse the burthen that was upon it; but having
once taken it, he could not abandon it: that being then only an assignee in equity, no action could be brought, and that the only relief that he could give the plaintiff, as he could not give him damages, was to put him in a situation to recover them; his lordship therefore decreed, that the defendants should take an assignment of the lease and execute a counterpart, and that they should pay the costs (a).
Indeed, the principle that a mortgagee is liable only in respect of his possession, seems no longer to be recognized in either a Court of law or equity.—Thus, where the plaintiff was the original lessee of a term, which he assigned to Kay, who assigned it by way of mortgage to the defendant as a security for the re-payment of a sum of money, the action was brought to recover the amount of ground rent paid by the plaintiff during the interest of the defendant as mortgagee. Lord Kenyon said, that the defendant was liable as assignee: his liability was not limited by his possession, but as long as he had the legal estate, so long he continued liable to perform the covenants in the lease. If he wished to avoid that liability, he should have taken an under-lease (b).
A mortgagee in possession is not obliged to lay out money any further than to keep the estate in necessary repair.—If the estate lies at such a distance that he must employ a bailiff to collect the rents, what he paid to the bailiff shall be allowed; but not where he does or may receive the rents himself (f).
If A. mortgage land to B. upon condition to re-enter on payment of \oli and afterwards A. before the day of payment is come, being in possession, make a lease for years by indenture to C. and then afterwards performs the condition, this shall make the lease to C. good against himself by estoppel (d).
Section XVII. Of Leases by Tenants by Elegit, StatuteMerchant, and Statute-Staple, #c.
As tenants under these executions have only uncertain interests, determinable at any time on payment of the sum secured, they cannot enter into any contract for a lease, which will not be liable to be put an end to in the same event; but till such contingency occurs their demises are good. It however very rarely happens that leases are granted by persons thus entitled, and we shall not therefore enter more at large into the subject.
(*) I Powell on Mort. 141. I (r) Godfrey v. Watson. 3 Atk. 517.
(4) Stone v. Evans, Settlement at West- I (d) Ac Abr, tit. Leases. (O.) minster. T. T. 39 G. 3. TVs MSS. I