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Section XVIII. Of Leases by Copyholders; wherein of
A copyholder cannot, unless by special custom or by licence from the lord, convey any common law interest in his lands to another, as such an act is incompatible with his tenancy; so that if he make a lease for years without licence, though by parol only, or even if it be to commence in futuro (a), it will be a forfeiture of his tenement. But an interest must actually pass; for a promise or covenant to demise will not create a forfeiture, for it is no lease (b).
By special custom a copyholder may make leases for three, nine, or twenty-one years, or for life and forty years after, without licence from the lord; upon which also he may maintain an ejectment (c).
But a custom that the lease shall be void if the lessor die, is good; though not if the lessor alien (c ).
A lease for a year, without licence, is good; but a lease for one year et sic de anno in annum during ten years, being a good lease for ten years, is a forfeiture: but otherwise of a lease for one year, with a covenant for the holding it for a longer time at the will of the lessor. So a lease for a year et sic de anno in annum for the life of the lessee, being a lease for two years at least, is not good. So, if de anno in annum, excepting one day in every year, for it is a certain lease for two years, excepting two days, which is a lease in effect for more than one year; and although there be the intermission of a day, yet that is not material (d).
So, if a copyholder make three leases together, each to commence within two days after the expiration of the other, it is a mere evasion of the custom and therefore not good (e).
So if a copyholder, to secure a person who has become bound for him, covenant that such person shall hold and enjoy the copyhold estate for seven years, and so from seven years to seven years, for the term of forty-nine years, if the copyholder so long live, it is a forfeiture of the estate; though there is a clause that the deed should be void on the bond being paid; for this deed, though intended only as a collateral security, amounts to a present lease (f).
A copyholder, having licence to lease, ought to pursue his licence strictly, otherwise his lease is void (c).
As, if he has a licence to lease for twenty-one years from Michaelmas last, and he leases for twenty-one years from December next. So if he has a licence to lease for two years and he leases for three years. So if a copyholder in fee has a licence to lease for years, if he so long live, and he leases for years absolutely (a).
(a) Berwick's case, Moore. 393. East v. Harding. Cro. Eliz. 498.
(J) Richards v. Ceely. 3 Keb. 638. Ham!cn T. Hamlcn. j Bulst. 189.
to Com. Dig. tit. Copyhold. (K. 3.)
So, a copyholder having licence to make a lease for twenty-one years, cannot make two leases for that term ; for he has satisfied his licence by one lease.
If a copyholder makes a lease by licence, the lessee may assign with licence, or make an under-lease, for the lord by his licence has parted with hisjnterest.
So if the lessor after a lease by licence die without heir, the lessee shall have it for his term against the lord; for the licence is a confirmation of the lord (a).
If the lord licence the copyholder to make a lease of lands in the tenure of A. though they are in the tenure of B. yet the licence is good (*).
A copyholder, having a licence to lease, may lease for fewer years than his licence allows; as a lease for three years, under a licence to let for twenty-one, which is good (c).
If the lord licence his copyholder for life to make a lease for three years, if he so long live, a lease for three years absolutely is good: for a lease by a copyholder for life determines by his death, and therefore the condition annexed, being implied by law, is void (d).
If the lord licence upon condition, the condition is void; for he gives nothing, but only dispenses with the forfeiture (d).
A licence may however be upon a condition precedent; for till the condition be performed it is no licence (a).
If a copyholder make a lease for years of land whereof a feme by custom is to have her widow's estate, she shall not avoid the lease, unless there be a special custom to avoid it; for he comes under the custom, and by the Lord's licence, as well as the feme (e).
So if a copyholder, after a lease by licence, forfeit his copyhold, the lord shall not avoid the lease; or if he die, as before observed, without any heir (a).
If a copyholder by licence make a lease for years, rendering rent, he cannot afterwards release the rent without a surrender of the reversion (a).
A lease for years by parol, made by the remainder-man of a copyhold in fee, commences immediately, if the tenant for life join with him and surrender the estate to his use (b).
When the baron was seised of a manor in right of his feme, and let a copyhold parcel thereof for years by indenture and died, it was held that it should not destroy the custom to demise it by copy, but
after the death of her baron, the feme might so demise it as before. The same law is, if tenant for life of a manor let a copyhold parcel of the manor for years, and die, it shall not destroy the custom as to him in reversion (a).
A lease for years by a copyholder, with the licence of the lord where the widow by custom would be entitled to her freebcnch, if the copyholder had died seised, defeats the widow of her freebench (3).
A lease without a licence and contrary to the custom, in order to amount to a forfeiture, must be a perfect lease, and must have a certain beginning and a certain end, for otherwise the lease is void, and carries but an estate at will at most, which is no forfeiture.
Therefore, where a copyholder had demised his copyhold for a year, and agreed to grant a further term of twenty-one years, proTided he could obtain of his lord a licence for that purpose, this was held to be a condition precedent, and that therefore no forfeiture was incurred (c).
So where a copyholder agreed to demise, and let certain premises, for a term of twenty-one years, and covenanted to procure a licence to let the same, and that the lessee should peaceably enjoy for the said term of twenty years; this was held to be an executory agreement, and not a lease; for if it were held to be a lease, a forfeiture would be incurred; whereas that would be contrary to the intent of the parties, who have cautiously guarded against it by the insertion of a covenant that a licence to lease should be procured from the lord (d).
A demise by a copyholder for one year, and at the end of that term from year to year for the term of thirteen years more, in all fourteen years, if the lord will give licence, and so as there shall be no forfeiture with the usual covenants in a farm lease; the licence is a condition precedent, and not being granted, there is no lease at law farther than from year to year, and there is no equity upon the circumstance, that the lord purchased his tenant's interest with notice of demise, and an express exception of all subsisting leases or agreements for leases (e).
An infant copyholder without licence of the lord, made a lease for years by parol, rendering rent, and at full age was admitted, and accepted the rent, and then ousted the lessee; and in this case it was adjudged, that the lease was a good lease till avoided, and that a lease for years by a copyholder without licence is not a disseisin: and admitting that it should be a forfeiture in this case, yet if the lord enters for it, the infant may re-enter upon him, and so is no mis
chief; and therefore he, having accepted the rent at full age, hath made it good and unavoidable, and being at all events a good lease as to all strangers, for that reason principally it was adjudged that such cceptance had made it good (a).
A lease by a copyholder for a year, with a covenant to renew yearly, we have before observed is not a forfeiture. In such covenant it would perhaps be still better if it were worded "to permit and suffer" the lessee to have, hold, and enjoy the lands in such manner: for a covenant in that form, even of freehold lands, will not amount to an immediate lease, because the words "permit and suffer" prove that the estate is still to continue in him from whom the permission is to come; for if any estate thereby passed to the covenantee, he might hold and enjoy it without any permission from the covenantor, and therefore in such case the covenantee hath only the bare covenant for his security of enjoyment, without any actual estate made over to him (a).
A copyholder agreed to grant a lease for years, if a licence could be obtained, and also to procure the lessee a licence to dig fuller's earth, and that in the mean time the lessee might dig, filling up the holes. The lessee having dug, without filling them up, it was insisted that the omission was an act of waste ; but it was held that the digging constituted the waste, and that as the under-tenant dug by the lessor's own licence, he could not insist on the forfeiture (b).
The admittance of a copyholder, after a forfeiture is incurred, is clearly a waiver, and any act equally solemn will operate in the same manner. Such acts as operate as a waiver do not operate as a new grant, but admit the tenant to be in of his old title (c).
Every one having a lawful interest in a manor, may make voluntary grants of copyholds escheated, or come to his hands, as well as admittances, rendering the ancient rents and services, which bind him who has the inheritance (d).
A grant therefore by any steward having colour of title, and granting not contrary to the command of the lord, is good. So of a clerk of a steward, if he hold a court and make grants; for the tenants cannot examine his authority, nor need he give them an account of it. So, of a deputy (e).
But a tenant at will of a manor cannot grant a copyholder licence to alien for years; and if tenant for life of a manor grant a licence to alien for years, it determines at his death (d).
Section XIX. Re leases by Joint-Tenants, Coparceners, and Tenants in common.
Joint-tenants, coparceners, and tenants in common, may either make leases of their undivided shares, or else may all join in re lease of the whole to a stranger. One joint-tenant, or tenant in common, may also make a lease of his part to his companion; for this only gives him a right of taking the whole profits, when before he had but a right to the moiety or share thereof ; and he may contract with his companion for that purpose as well as with a stranger (a).
If there be two joint-tenants, and they make a lease, by parol or deed-poll, reserving rent to one only, it shall enure to both; yet if the lease had been by deed indented, the reservation should have been good to him only to whom it was made, and the other should have taken nothing.—The reason of the difference is this: where the lease is by deed-poll or parol, the rent will follow the reversion, which is jointly in both lessors, and the rather, because the rent being something in retribution for the land given, the joint-tenant to whom it is reserved ought to be seised of it in the same manner as he was of the land demised, which was equally for the benefit of his companion and himself; but where the lease is by deed indented, they are estopped to claim the rent in any other manner than is reserved by the deed, because the indenture is the deed of each party, and no man shall be allowed to recede from or vary his own solemn act (b).
If one joint-tenant do a thing which gives to another an estate, or right in the land, it binds the survivor; as if a joint-tenant in fee or for life, make a lease for forty years (c ).
Therefore, if two joint-tenants are in fee, and one lets his moiety for years, to begin after his death, this is good, and shall bind the other if he survive, because this is a present disposition, and binds the lands from the time of the lease made, so that he cannot afterwards avoid it.
So if one joint-tenant grant the vesture or herbage of the land for. years, and dies, this shall bind the survivor; or if two joint-tenants are of a water, and one grants a separate piscary for years and dies, this shall bind the survivor; because in these cases the grant of the one joint-tenant gives an immediate interest in the thing itself whereof they are joint-tenants (i).
If there are two joint tenants for life, and one of them makes a lease for years of his moiety, either to begin presently or after his death, and dies, this lease is good and binding, against the survivor:
(«) i Inst. 186. (a.) I Cro. Jac. 91.
© Bac. Abr. tit. Jciut-tcnauts and tenants (c) Com. Dig. tit. Estates (K. 7.),
in Common. (H. 1.) Whitlock v. Horcon. I