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the reason whereof is that notwithstanding the lease for years, the joint-tenancy in the freehold still continues, and in that they have a mutual interest in each other's life, so that the estate in the whole or any part is not to determine or revert to the lessor till both are dead, for the life of one as well as the other was at first made the measure of the estate granted out by the lessor, and therefore so long as either of them lives, if the joint-tenancy continues, he is not to come into possession (a). Now these joint-tenants having a reciprocal interest in each other's life, when one of them makes a lease for years of his moiety, this does not depend on its continuance for his life only, but on his life, and the life of the other joint-tenant, whichsoever of them shall live longest, according to the nature and continuance of the estate whereout it was derived; and then so long as that continues, so long the lease holds good, and by consequence such lessee shall hold out the surviving joint-tenant and the reversioner, till the estate, whereout this lease was derived, be fully determined.
But if a rent were reserved on such lease, this is determined and gone by the death of the lessor: for the survivor cannot have it, because he comes in by title paramount to the lease, and the heirs of the lessor have no title to it, because they have no reversion or interest in the land (a) ; but the executors or administrators may maintain an action of debt or covenant; this remedy, being now given to the representatives of such a lessor; for by statute n G. 2. c. 19. s. 15. the executors or administrators of tenant for life shall, on his death, recover of the lessee a rateable proportion of the rent from the last day of payment to the death of such lessor.
A. and B. being joint-tenants for life, a lease made by A, of the one moiety to have and to hold after the death of B. for sixty years if A. so long live, and of the other moiety to have and to hold after the death of A, for sixty years if B. so long live, and At dies, B. surviving, is bad for both moieties: for by the first words it was a good lease from A. of his part, upon the contingency of his surviving B. but that never happened, and as to B.'s part, A. had no power to lease or contract for it during the life of B. though he had happened after to survive him, for it was but a bare possibility, which could not be leased or contracted for, and therefore the lease was void in the whole (a).
So, if one joint-tenant make a lease for years, "if he and his companion live so long," and afterwards surrender his moiety, and take back another estate, the lease determines by the death of either of them: for it hath no continuance longer than the jointure continues, which is severed by the surrender, a new estate being taken (a).
If joint-tenants join in a lease, this shall be but one lease, for they
(a) Bac. Abr. tit. Joint-tenants and Te- I Jac. 91. Daniel v. Waddington. Cro. Jac. nanu in Common, Whitlock v.Horton, Cro. I 377. Com. Dig. tit. Estates. K. (a.)
have but one freehold; but if tenants in common join in a lease, this shall be the lease of each for their respective parts, and the cross confirmation of each for the part of the other, and no estoppel on either part, because an actual interest passes from each respectively, and that excludes the necessity of an estoppel, which is never admitted, if by any construction it can be avoided (a).
Section XX. Of Leases pursuant to Authority; wherein of Leases by Attornies, Agents, <§r.
If one hath power, by virtue of a letter of attorney, to make leases for years generally by indenture, the attorney ought to make them in the name and style of his principal, and not in his own name; for the letter of attorney gives him no interest or estate in the lands, but only an authority to supply the absence of his principal by standing in his stead, which he can no otherwise do than by using his name, and making them just in the same manner and style as his principal would do if he were present. If he should make them in his own name, though he added also " by virtue of the letter of attorney to him made for that purpose," yet such leases seem to be void, because the indenture being made in his name, must pass the interest and lease from him, or it can pass it from nobody: it cannot pass it from the principal immediately, because he is no party, and it cannot pass it from the attorney at all, because he has nothing in the lands; and then his adding, "by virtue of the letter of attorney," will not help it, because that letter of attorney made over no estate or interest in the land to him, and consequently he cannot, by virtue thereof, convey over any to another (a).
Neither can such interest pass from the principal immediately, or through the attorney (a); for then the same indenture must have this strange effect at one and the same instant, first to draw out the interest from the principal to the attorney, and from the attorney to the lessee, which it certainly cannot do, and therefore all such leases made in that manner, seem to be absolutely void, and not good, even by estoppel against the attorney, because they pretend to be made not in his own name absolutely, but in the name of another, by virtue of an authority which is not pursued (b).
This case therefore of making leases by a letter of attorney, seems to differ from that of a surrender of a copyhold, or of livery of seisin of a freehold by letter of attorney; for in those cases when they say, "we A. and B. as attornies of C." or "by virtue of a letter of
(a) Bac. Abr. tit. Joint-tenant* and Tenants in Common. Whitlock v. Horton. Cro. Jac. 91. Daniel v. Waddinjion. Cro. Jac. 377.
Com. Dis-tit. Estates. K. (a.)
attorney from C. of such a date, &c." "do surrender," &c. or « deliver to you seisin of such lands," these are good in this manner, because they are only ministerial ceremonies, or transitory acts in pairs, the one to be done by holding the court rod, and the other by delivering a turf or twig; and when they do them as attornies, or by virtue of a letter of attorney from their principals, the law pronounces thereupon as if they were actually done by the principal himself, and carries the possession accordingly (a).
But in a lease for years it is quite otherwise, for the indentures or deeds alone convey the interest, and are the very essence of the lease, both as to the passing it out of the lessor at first, and its subsistence in the lessee afterwards. The very indenture or deed itself is the conveyance, without any subsequent construction or operation of law thereupon; and therefore it must be made in the name and style of him who has such interest to convey, and not in the name and style of the attorney, who has nothing therein; but in the conclusion of such lease it is proper to say, "in witness whereof A. B. of such a place, &c. in pursuance of a letter of attorney hereunto annexed, bearing date such a day:" or if the letter of attorney be general, and concern more lands than those comprised in the present lease, then to say, "in pursuance of a letter of attorney, bearing date such a day, &c. a true copy whereof is hereunto annexed, hath put the hand and seal of the principal," and so to write the principal's name, and deliver it as the act and deed of the principal; in which last ceremony of delivering it in the name of the principal of such attorney, this exactly agrees with the ceremony of surrendering by the rod, or making livery by a turf or twig, by the attorney in the name and as attorney of his principal; which proves that there is a great diversity between using the name of the attorney in the making of leases, and using his name in making a surrender of copyhold or livery of seisin of a freehold estate.
A special agent under a limited authority cannot bind his principal by an act beyond the scope of such limited authority (b).
The Court of Chancery will interfere, where an agent procures his principal to grant a lease on disadvantageous terms; it appearing that the agent took an interest in the lease (c).
If the defendant insist that the lease declared on is not the plaintiff's, the plaintiff may shew that it was made by A. who had authority from him to execute it in his name, and the authority need not be produced. But the lease must be made and executed in the name of the principal (d).
(a) Bac. Abr. tit. Leases. (C. 10.) (r) Lady Ormond v. Hutchinson. l6Ves. 94.
(J) Fenn v. Harrison. 3 T. R. 757- I (J) Bull. N. P. 177.
But in a recent case it was held, that where a party executes a deed under a power of attorney, the power ought to be produced (a).
Agreements for a lease, made with an agent who acts under a power of attorney, and a lease executed by such agent in pursuance of the agreement, shall bind the principal (J).
Where a man does such an act as cannot be good by any other means but by virtue of his authority, it shall be intended to be an execution of his authority; but where a man has an interest and an authority, and does an act without reciting his authority, it shall be intended to be done by virtue of his interest (c).
A bailiff of a manor cannot, by virtue of his office, make leases for years; for his business is only to collect rents, gather the fines, look after the forfeitures, and such like: but he hath no estate or interest in the manor itself, and therefore cannot contract for any certain interest thereout. But the lord of the manor may give him a special power to make leases for years, as he may do to any stranger, and then such leases, if they are pursuant to the power, and made in the name of the lord, will be as good as leases by the lord himself; for the bailiff, though he hath such power, cannot make them in his own name (d).
But a general bailiff of a manor may make leases at will, without any special authority, because, being to collect and answer the rents of the manor to his lord, if he could not let leases at will, the lord might sustain great prejudice by absence, sickness, or other incapacity to make leases when any of the former leases were expired; and such leases at will are for the benefit of the lord, and can be no ways prejudicial to him, because he may determine his will when he thinks fit (d).
Such, however, must be taken to be strict tenancies at will; otherwise, as general tenancies at will are construed to be tenancies from year to year, and half a year's notice to quit is required, before a tenant can be ousted, such tenancies might prove very prejudicial to the lord's interest. •
But if the bailiff of a manor hath a special power to make leases for years, as he ought to make them in the name of his master, so they ought to be made in writing, that the authority may appear to be pursued; a parol lease such bailiff has no power to make (d).
(a) Johnson v. Mason. I Esp. R. 89.90. (0 Parker v.Kett. 1 Ld. Ray. 658-660.
(b) Hamilton v. Earl of Clanricarde. 1 Bro. I J) Bac. Abr. th. Leases. (1.8.) Pari. Cas. 341.
To re leases may be made.
Every person is capable of being a lessee, unless rendered incompetent by some legal disability; such as infancy, coverture^ insanity, &c.
Spiritual persons.—By 43 G. 3. c. 84. (which recites the 21 H. 8, c. 13.) it is made lawful for any spiritual person to take to farm to himself, or to any person or persons to his use, by lease, or otherwise, for term of life, years, or at will, any messuage or dwelling-house, with or without orchards, gardens, or other appurtenances, although not in any city, borough, or town; and any spiritual person having or holding any [benefice, 46 G. 3. c. 109. /. 1.] donative, perpetual curacy, or parochial chapelry, not having sufficient or convenient glebe or demesne lands annexed to, or in right of, or by reason of his benefice, or cure, or chapelry, or any stipendiary curate, or unbeneficed spiritual person, with the consent in writing of the bishop of the diocese, may take to farm to himself, or to any person, to his use for a limited term of years, any farm or farms, that may, under all the circumstances, appear to such bishop proper to be taken or occupied by such spiritual person, for the convenience of his household and hospitality only, without being liable to any penalties, &c. under the recited Act, or any other Acts by reason thereof: provided that nothing herein shall authorize any non-residence of any such spiritual person as aforesaid, s. 4.
And any spiritual person or persons, by himself or themselves, or any other to his or their use, may have, hold, use, or occupy in ferm, any manors, lands, C. demised, leased, or granted to him or them, or his or their property and estate, or to take, purchase, receive, or hold, as the property and estate of such spiritual person, any lease or leases for life or lives, or for term or terms of years, absolute or determinate on any life or lives, or to take any annual rent, or other annual advantage or profit by occasion of any lease or ferm of any manors, &c. the property or estate of any such spiritual person or persons belonging to him or them, either in his or their own right or in right of any other person, or by reason of his or their holding any spiritual dignity or benefice, or so taken, purchased, &c. as aforesaid as the property or estate of such spiritual person, notwithstanding the said recited or any other Act: Provided that nothing herein contained shall authorize any spiritual person holding any dignity,prebend, benefice, donative, perpetual curacy, or parochial chapelry, or serving a stipendiary curacy, to take, receive, or hold any manors, &c. after