v. Horde, 1 Burr. 125. Where, however, the power does not require any particular covenants, a lease under the power will be valid, though it does not contain the same covenants as were inserted in the former leases, if they are upon the whole equally beneficial as the former. Good tle v. Funa an, Doug). 565. Earl of Cardigan v. Montague, supra. It may be further observed, that where a power expressly requires the lease to contain usual, or usual and reasonable covenants, or the like, unless the covenants contained in the former leases are inserted in the new leases, they cannot be sustained. See Earl of Cardigan v. Montague, supra. 8 Ch. Rep. 76. Jones v. Verney, Wiles, 169. Doe v. Sandham, 1 T. R. 705.

12 East, 309. And the construction is the same upon any word tantamount to the word covenants, as “boons," or the like. Earl of Cardigan v. Montague upra. It is also to be observed, that the Covenants entered into by the lessee with the donee of the power, his heirs and assigns, will, under the 32 11. 8. c. 34. enure to the remainder-man, who may maintain an action on them. Sugd. Pow. 630. Isherwood v O'dknow, 3 Maul. & S. 382.

It remains to observe, that where the terms of the power are complied with, it is no objection that the lease is granted in trust for the lessor himself, for that is a question merely between the parties. Wilson v. Sewell, 1 B). Rep. 61. Earl of Cardigan v. Montague, supra. Taylor v. Horde, 1 Burr 60. But where a tenant for life makes a lease not warranted by his power, it is absolutely void, as to the person in remainder or reversion, and not merely voidable: and, therefore, no acceptance of rent by the remainder-man can set it up. Jones v. Verney, supra. Doe v. Watts, 7 T. R. 83. The acceptance of rent, however, as rent, may operate as an admission by the remainder man that the lessee is his tenant, and in that case he will be entitled to notice to quit. And, under some circun.stances, equity would compel the remainder-man to grant a new lease. See Roe v. Prideaux, 10 East. 158. Ant. p. 88. n. (128).

With respect to equitable relief in the case of a defective execution of a power to lease, it is clear, that in the construction of pow ers originally in their nature legal, courts of equity must follow the law, be the consideration ever so meritorious; for instance, powers to a tenant in tail to make leases under the statute, if not executed in the requisite form, no consideration ever so meritorious will avail. So with respect to powers under the civil list ect, powers under particular family intails, as in the case of the Duke of Bolton, &c. equity can no more relieve from defects in them, than it can from defects in a common recovery. Per Lord Mansfield, Cowp. 267. Et vid. acc. Anon. 2 Freem. 224. But the material question to be considered is, whether equity can relieve against a defective execution of the usual power of leasing in settlements. As to which Mr. Sogden observes, that the rule seems to be this: that where there is no fraud on the remainder man, as where the former lense is abandoned, although not actually surrendered, or there is merely a defect in the node of the execution of the power; for example, only one witness where two were required, or a seal be wanting, or the like: in all these cases it should seem that if the lessee is in the nature of a purchaser, equity will relieve against the defective execution of a power, see,Shannon v. Bradstreet, 1 Sch. & Lef. 52. Doe v. Weller, 7 T. R. 478. Willes, 176. 13 Ves. 576 but where the best rent is not reserved, or a fine is paid contrary to the terms of the power, or the lease substantially commences in futuro, or the interest of the remainder

man is, in other respects, invaded, as in the cases of Temple v. Ballinglass (Finch. 275.), Doe v. Sandham (1 T. R. 705.), and Sandham v. Medwin (Excheq. 2d March, 1789), there it seems clear that equity cannot relieve. Sugd Pow. 367,568. Stratford v. Lord Aldborough, 1 Rigdw. P. C. 281. Campbell v. Leach. Ambl. 740. Sudg. Pow. App. No. 13: nor in these cases can any line be well drawn as to the quantum of excess or defect in the execution of the power. Therefore a lease to commence the day after the date of the deed, would be equally bad with a lease to commence at fifty years from the date. Sugd. Pow. 368. With regard, however, to the effect of an excessive execution of a power of leasing, it is observable, that where there is a complete execution, and something ex abundanti added, which is improper, there the execution shall be good, and only the excess void; but where there is not a complete execution of a power, and the boundaries between the excess and execution are not distinguishable, it will be bad. Per Sir Thomas Clarke, 2 Ves. 644. Et vid. 13 Ves. 576. Thus, if a man having a power to lease for twenty-one years lease for forty, that will be good in equity pro tanto, because it is a complete execution of the power, and it appears how much he has exceeded it, ibid. et vid. Parry v. Brown, 2 Freem. 171 3 Ch. Rep. 610. Nels. Ch. Rep. 87. Anon. 2 Freem. 224. Barnard. 116. Campbell v. Leach, supra: though the excess would render the lease void at law, Campbell v. Leach, supra. Roe v. Prideaux, 19 East. 158. Where, however, a distinct limitation is superadded, it will be merely void, and will not affect a prior valid appointment, even at law; as if under a power to lease for twenty-one years, a lease be accordingly made for twenty-one years, and by the same deed, the donee limit a further term in this manner, viz. and from and after the term aforesaid for one year more, the power will be well executed by the first limitation, and the excess will be surplusage not to be regarded, Fitzg. 157. 2, Sch. & Lef. 332. Commons v. Marz shall, 7 Bro. P. C. 111. Sugd. Pow. 546. Where a tenant for life, with power of leasing, grants a lease for a term absolute, without referring to or mentioning his power, as the lease, if it be supplied out of his interest, would expire with his life, it shall, therefore, operate as an execution of the power. Campbell v. Leach, supra. et vid. 10 Mod. 36: though, if a lease comprise fee-simple estates as well as estates subject to the power, it seems a nice question, whether the deed shall enure by fractions, so as to be a lease out of the interest as to the fee-simple lands, and an appointment as to the rest. See Bibell v. Dringhouse, Mo. 645. Sugd. Pow. 290, 291. On the other hand, if a tenant for life, with a power of leasing, refers to his power, and in execution of it grant a lease to a person having an existing valid lease, although the power prove to be badly executed, yet the new lease shall not, as between the lessee and the remainder-man, be construed to have enured out of the estate for life of the lessor, because under that construction, the existing valid lease would be merged by a surren der in law, to the prejudice of the lessee. Roe, d. Earl of Berkeley v. Archbishop of York, 6 East 86.

With respect to agreements to execute a lease:-In the case of Harnett v. Yielding, where a man, with a power of leasing for twenty-one years at rack-rent, agreed to execute a lease for twenty-one years, and a further lease for twenty-one years at any time during his life, consequently to execute a lease for twenty-one years, whatever might be the increased value of the property at the time of the lease granted; Lord Redesdale considered this to

be an agreement to act in fraud of the power, and held that the purchaser was not entitled to a specific performance even pro tanto. 2 Sch. & Lef. 549. But Mr. Sugden observes, that it seems open to contend, that if the lessee is willing to take such a lease as the party can grant without risk to himself or injury to the remainderman, equv must specifically perform the agreement pro tanto. Sugd. Pow. 347. Treat. Purch. 4th edit. 177. 241. But where the party cannot grant the lease required so as to bind the inheritance, the court will not decree a specific performance, by directing an invalid lease to be executed, which might incumber and embarrass those entitled to estates in remainder. Ellard v. Lord Llandaff, 1 Ball. & B. 241. O Rourke v. Percival, 2 Ball. & B. 58. And generally, where a man, after entering into a contract for a lease, commits a felony, equity will not enforce the agreement. See Willingham v. Joyce, 3 Ves. 168. So, if the tenant has treated the land in an unhusbandlike manner, and has been guilty of various breaches of covenant, for which the lessor had a right of re-entry, the court will not decree a specific performance in his favour. Hill v. Barclay, 18 Ves. 63. Insolvency also, admitted and not cleared away, is a weighty objection to a specific performance of an agreement for a lease. Buckland v. Hall, 8 Ves. 95. O'Herliky v. H dges 1 Sch. & Lef. 130. And it seems that the assignee of a bankrupt cannot compel a landlord specifically to perform an agreement to gran a lease to the bankrupt. See Weatherall v. Geering, 12 Ves. 514. Franklin v. Lord Brownlow, 14 Ves. 550. And it is also observable, that a lease will, in equity, be set aside, where it has been obtained by surprise or fraud, provided there has been no laches. See Smyth v. Sinyth, 2 Mad. Rep. 75. But though on a bill for the specific performance of a contract, the court has often taken great latitude in refusing it; yet when a party, under no distress or incompetency, makes a contract, it must be a very strong case, to induce a court to rescind it. Ib. 89.-[Ed.]

CHAP. XXXIX.*

(443)*

SAME SUBJECT.

OF EXCHANGE.

Or what things an exchange (A) may be made (which 50 b. 1. Of what things an was a conveyance frequent in former times) is to be seen: exchange may be made. and herein many things are to be observed.,

(Hob. 41.)

First, that the things exchanged (a) need not to be The things exchanged

in esse at the time of the exchange made.

need not be in esse at

As if I grant the time of exchange.

a rent newly created out of my lands in exchange the manor of Dale, this is a good exchange (1).

for (a) 30 E. 1. Esch. 15.

3 E. 4. 10. 9 E. 4. 21. 14 H. 8. 20.

(Post, 366 a.)

session not requisite to an exchange.

Secondly, (b) there needeth no transmutation of pos- Transmutation of possession, and therefore a release of a rent, or estovers, or right to land, in exchange for land, is good (2).

(1 Rol. Abr. 812.) (b) 6 E. 56. 30 E. 1. Esch. 2. 7 H. 4. 34. 3 E 4. 11.

The things (c) exchanged need not be of one nature, The things need not be so they concern lands or tenements, whereof Littleton of the same nature, so here speaketh. As land for rent or common, or any or tenements. as they concern lands

change. See 9 E. 4. 21.-[Hargr. 56. 21 E. 3. 6.
(e) 9 E. 4. 21. 9 E. 3.
n. 4. 50 b. (327).J

(2) See as to this Fulb. Paral.
33 a. in the dialogue on exchanges,
-[Hargr. n. 5. 50 b.]

(A) An exchange is defined to be, a mutual grant of equal interests, the one in consideration of the other. 2 Bl. Com. 323. As where a man is seised or possessed of land in fee simple, fee-tail, for life, or years, and

1

(444)*

LITTLETON.

other inheritance which concern lands or tenements, or spiritual things, as tithes, &c. for temporal, and tenure by a divine service for a temporal seignory, &e. But annuities or such like which charge the person only, and do not concern lands or tenements, cannot be exchanged for lands or tenements (B).

AND note, that in exchanges it behoveth, that the [Sect. 64. 50 b.] estates which both parties have in the lands so ex2. Circumstances re- changed, be equal; for if the one willeth and grant quisite to an exchange. The estates reciprocally that the other shall have his land in fee-tail for the given in exchange land which he hath of the grant of the other in feesimple, although that the other agree to this, yet this exchange is void, because the estates be not equal.

must be equal in quantity.

51 b.

LITTLETON.

"Although that the other agree to this, yet this exchange is void." The agreement of the parties cannot make that good which the law maketh void.

IN the same manner it is, where it is granted and Sect. 65. 50 b.] agreed between them, that the one shall have in the one land fee-tail, and the other in the other land but for term of life; or if the one shall have in the one land fee-tail general, and the other in the other land fee-tail special, &c. So always it behoveth that in exchange the estates of both parties be equal, viz if the

another is, in like manner, seised or possessed of other lands, and they do exchange their lands, the one for the other. And in this there is a double grant; for each of them grants that which is his, to the other. Infra, 50 b. It appears here, and from the many precedents of deeds of exchange inserted in Mr Madox's Formulare, that this mode of conveyance was formerly much in use, though it is not now so frequent. The circumstances requisite to an exchange, and its effect and operation, will be considered in the course of this chapter.-[Ed.]

(B) See acc. 1 Wood 740. Lilly's Conv. 138. 4 Com. Dig. 104. ExChange A 1). Vin. Abr. Exchange (D). Shep. Touch. c. 16. p. 293, 294. With respect to the persons who may exchange :-All persons who are capable of conveying away their lands, may, of course, exchange them for others; and if an infant exchanges lands, and enters on those acquired by the exchange, and continues to hold them after he attains his full age, the exchange is become perfect, for it was not originally void, because the entry was equivalent to livery, and also in respect of the recompense, but only voidable. 4 Cru. Dig. 144, 145. Infra, 51 b. But coparceners, joint-tenants, or tenants in common, cannot exchange with each other. before partition, their possession being till then undivided. Shep. Touch. 292. Ante, vol. 1. p. 718. n. (R)—{E}