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334

So where a

man takes a

own land, rendering

rent:

OF LEASES.

(z) If a man take a lease of his own land by deed indented, reservlease of his ing a rent, the lessee is concluded. (a) But if a man take a lease of the herbage of his own land by deed indented, this is no conclusion to say, that the lessor had nothing in the land, because it was not made of the land itself: (b) but if a man take a lease for years of his (2) 14 H. 6.23. own land by deed indented, the estoppel doth not continue after the term ended (22).

secus as to a lease of the

herbage.

8 H. 4. 7.

a) Resolved

Pasch. 2 Eliz.

in Communi Banco. (Cro. Cha. 110.)

(b) Mich. 31 & 32 El. in Communi Banco, adjudged in Lond. case.

de

*For by the making of the lease, the estoppel doth grow, and (418)* Estoppel be consequently by the end of the lease, the estoppel determines (23), the ending of (c) and that *part of the indenture which belonged to the lessee, doth 38 H. 6. 24. after the term ended belong to the lessor, which should not be if (Ante, 229 a.) the estoppel continued (o).

the term.

30 E. 3. 21.

*48 a.

43 b.

3. By whom

leases may be mode.

*44 a.

(d) 32 H. 8. cap. 28. 1 El. not printed but in the

Abridgment. 13 Eliz. cap. cap. 6. 1 Jac.

10. 18 Eliz.

cap. 3.

When Littleton wrote, many persons might make leases for years, or for life or *lives, at their will and pleasure, which now cannot make them firm in law. And some persons may now make leases for years, or for life or lives (observing due incidents), firm and good in law, who of themselves could not so do when Littleton wrote, and this by force of divers acts of parliament (d); as namely, 32 H. 8, 1 Eliz. 13 Eliz. and 1 Jac. Regis. of which statutes one is enabling, and the rest are disabling. When Littleton wrote, bishops with the confirmation of the dean and chapter, master and fellows of any college, deans and chapters, master or guardian of any hospital and his brethren, parson or vicar with the consent of the patron and ordinary, archdeacon, prebend, or any other body politic, spiritual, and ecclesiastical (concurrentibus hiis quæ in jure requiruntur), might have made leases for lives or years, without limitation 5 Co. 14. case or stint. And so might they have made gifts in tail or states in fee tical Persons. at their will and pleasure, whereupon not only great decay of divine service, but dilapidations and other inconveniences, ensued, and College case. therefore they were disabled and restrained by the said acts of 1 Eliz. 13 Eliz. and 1 Jac. Regis, to make any state or conveyance 60, 61. (1 Sid. the king at all, or to the subject; but there is excepted out of the restraint or disability, leases for three lives, or one-and-twenty years, with such reservation of rent, and with such other provisions and

de Ecclesias

11 Co. 66.

Magdalen

L'Evesque de
Sarum's
10 Co.
case.

162.)

(22) Vid. 4 H. 67. If disseisee makes
lease for years by indenture to disseisor, he
shall not have assise during this lease."
Hal. MSS.-[Hargr. n. 12. 47 b. (308).]
Vid. 14 H. 6. 22.
(23) "30 E. 3. 21.

to

per curiam. But if it be estoppel by matter of record, as by fine, &c. it continues after. 2 E. 4." Hal. MSS.-Hargr. n. 13. 47 b. (309).]

(0) That a lease for years may operate as to part by estoppel, and as to the residue by passing an interest, see Gilman v. Hoare, 1 Salk. 275. But it is a rule, that estoppels ought to be mutual, otherwise neither party is bound by them; therefore if a man takes a lease for years of his own lands from an infant or feme covert by indenture, this works no estoppel on either part, because the infant or feme covert, by reason of their disability to Cro. Eliz. 37. 700. A lessor is not estopped contract, are not estopped. Post, 352 a. by his deed from going into evidence to show that a cellar, which is situate under the demised premises particularly described, was not intended to be demised. Doe, d. Freeland v. Bent, 1 T. R. 701, See further as to Estoppel, post, 352 a. Book III. Chap. 6. Of Pleading.-[Ed.]

47.50. 10 Co.

16. Finch.

limitations, as hereafter shall appear. Also they may make grants (Cro. Cha. 16. of ancient offices of necessity* with ancient fees, concurrentibus 55. Pollexf. hiis quæ in jure requiruntur, for those grants are not within the 134. 4 Mod. statute of 32 H. 8. but by construction, they are not restrained by 191, 192, 193, the statutes of 1 Eliz. and 13 Eliz. because these ancient offices be Cro. Jac. 173.) of necessity, and with the ancient fees, and so no diminution of re- (419)* venue (24).

There be three kinds of persons that at this day may make leases for three lives, &c. in such sort as hereafter is expressed, which could not so do when Littleton wrote, viz.

First, any person seised of an estate tail in his own right.

Cro. Cha. 48.

By stat. 32 H. tail may

8. tenants in make leases for three lives or 21 years, so to bind their

issue;

and ecclesi

Secondly, any person seised of an estate in fee-simple in the right astics, seised of his church.

Thirdly, any husband and wife seised of any estate of inheritance in fee-simple or fee-tail in the right of his wife, or jointly with his wife before the coverture or after, viz. the tenant in tail, by deed, to bind his issues in tail (P), but not *the reversion or remainder; the

(24) "Vid. 29 Eliz. Case of the Bishop of Chester, who had anciently used to have a counsel who had a fee. This grantable by the bishop with consent of dean and chapter. Nota, though it be not an office of time which, &c. yet grantable, if of necessity, as in the case of the Bishop of Gloucester, founded within time of memory. M. 1 Car. C. B. Crook, n. 8. Cook and Young. Vide that it is holdeu, that though it be a new office, yet, if necessary, and the fee is reasonable, being confirmed, it shall bind the successor; and vide the grant of ancient office and fee, with the addition of a new fee, which notwithstanding seems good, because the office is ancient. M. 2 Car. C. B. Crook, n. 7. Gee's case. If it had been usual to grant an ancient office to one only, a grant to two is not good. But if it has been once granted to two or granted in reversion before the statute 1 Eliz., then it shall be intended to

jure ecclesiæ, So as to bind their successors;

and husband seised jure uxoris, &c. so her and their (420)*

and wife,

as to bind

heirs.

have been usually so granted, and such grant to two, or in reversion, shall bind the successor. T. 8 Car. B. R. Crook, n. 2. Walker and Lamb, M. 8 Car. B. R. Crook, n. 19. Young and Steele, concerning the official and commissary of the Bishop of Lincoln, and the register of the Bishop of Rochester." Hal. MSS. Ley. 75. is contrary to Gee's case, cited by Lord Hale.See further as to the grant of offices by ecclesiastical persons. New Abr. Offices, D. See also in Burr. part 4. vol. 1. page 219. the case of Sir John Trelawney and the Bishop of Winchester, in which the court held, that an office and fee which existed before the 1st of Eliz. are not within the restraint of that statute, but that they may be granted, as before the statute, and that the utility or necessity of the office is not more material since than it was before.-[Hargrave, n. 1. 44 a. (255).]

(P) In consequence of the statute De donis, all leases made by tenants in tail might have been avoided by their issue, or by the persons entitled to the remainder or reversion; but by the 32 H. 8. c. 28. leases made according to the directions of this statute, will be binding on the issue in tail. But, if the tenant in tail dies without issue, no lease made by him, though pursuant to the statute, will bind the remainder-man or reversioner. Infra,

44 a.

A lease by tenant in tail, which is warranted by the 32 H. 8., will not create a discontinuance, because an act of parliament, to which every man is a party, allows of such leases and therefore if a warranty is annexed to such a lease, it will not work a discontinuance, for it will determine with the lease. Post, 333 a. Vaugh. 383. But it is otherwise of a lease for three lives if it be not warranted by the statute; because it is a greater estate than the tenant in tail can make, and passes by livery, which takes the estate from the tenant in tail, and turns it into a reversion in fee, determinable upon three lives. Walter v. Jackson, 1 Rol. Abr. 633. 4 Cru. Dig. 119.-[Ed.]

Circum

stances requisite to

these leases.

bishop, &c. by deed, without the dean and chapter, to bind his successors; the husband and wife, by deed to bind the wife, and her and their heirs (25); and these are made good by the statute of 32 H. 8. which enableth them thereunto.

But to the making good of such leases by the said statute, there are nine things necessarily to be observed belonging to them all, and some other to some of them in particular.

First, the lease must be made by deed indented, and not by deed case. (Lev. poll, or by parol (26).

5 Co. 6. Seig. Mountjoy's

438. Cro. Ja.

94. 458.)

*41 b.

5 Co. 2. Elmer's case.

Secondly, it must be made to begin from the day of the making thereof, or from the making thereof (27).

*Thirdly, if there be an old lease in being, it must be surrendered (28) or expired, or ended within a year of the making of the lease, and the surrender must be absolute and not conditional (q).

(25)" Quoad leases by husband and wife. Husband and wife seised to them, and the heirs of the body of the husband make lease for three lives, rendering the ancient rent; husband dies: this shall not bind the wife. Adjudged, because the statute speaks of the wife's inheritance. H. 14 Eliz. C. B. n. 5. D. D. Husband and wife jointly seised by purchase to them and their heirs; the husband alone during the coverture makes lease, rendering the ancient rent: dubitatur if it shall bind the wife, because the proviso, which requires the wife's joining, speaks only of husband seised in right of his wife, finitur per compositionem. M. 1 Car. C. B. Crook, n. 15. Smith and Trinden." Hal. MSS. [Hargr. n. 2. 44 a. (256).]

(26) See New Abr. leases, (E 2.)— [Hargr. n. 3. 44 a.]

(27) "Vid. 7 Eliz. Dy. 246. Lease for 20 years to begin at next Michaelmas seems good." Hal. MSS.-See further as to the time when such leases should begin, and the difference between from the day of making and from the making. New Abr. Leases, (E) rule 2. and ante, 46 b. p. 408.-[Hargr. n. 4. 44 a. (257).]

[See ante, p. 408. n. (p).]—[Ed.}

(28) "Feme covert tenant for life; reversion in tail; husband surrenders; tenant in tail leases for three lives; the wife dies. Adjudged, that this is a good lease to bind the issue. Sydenham and Cops, cited by Popham. Mo. 783." Hal. MSS.-[Hargr. n. 1. 44 b. (258).]

(9) A surrender upon condition, that the lessor should make a new lease within a week after, has been held to be good. The lessor of the plaintiff, being a prebendary of Old Sarum, brought an ejectment to avoid a lease made by his predecessor, as not being conformable to the above proviso in the stat. 32 H. 8. His objection was, that the surrender made of the former lease was with a condition, that if the then prebendary did not within a week after grant a new lease for three lives, the surrender should be void; whereby, as it was contended for the plaintiff, the old term was not absolutely gone, but the lessee reserved a power of setting it up again. But the court, after two arguments, gave judg ment for the defendant; this being within the intent of the statute, which was, that there should not be two long leases standing out against the successor. Here, the new lease was made within the week, and from thence it became an absolute surrender both in deed and law. And the whole was out of the lessee without further act to be done by him. In the proviso in the statute there was the word ended as well as surrendered; and could any one say the first lease was not at an end? This was no more than a reasonable caution in the first lessee, to keep some hold of his old estate, till a new title was made to him. Wilson, d. Eyres v. Carter, 2 Stra. 1201. A surrender in law by the taking of a new lease, either to begin presently, or on a day to come, seems a good surrender within these statutes; for by taking such new lease, though it be to commence at a future day, the first lease is presently surrendered and gone, and shall not continue good till the day on which the second lease is to commence: but by acceptance of such second lease, the first is imme

*Fourthly, there must not be a double lease in being at one time; (421)* as if a lease for years be made according to the statute, he in the reversion cannot expulse the lessee, and make a lease for life or lives according to the statute, nor è converso; for the words of the statute be, to make a lease for three lives, or one-and-twenty years, so as one or the other may be made, and not both (29).

Fifthly, it must not exceed three lives, or one-and-twenty years, from the making of it, but it may be for a lesser term or fewer lives.

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Sixthly, it must be of lands, tenements, or hereditaments, manurable or corporeal, which are necessary to be letten, and whereout a rent by law' may be reserved, and not (e) of things that lie in grant, (e) 5 Co. 3. as advowsons, fairs, markets, franchises, and the like, whereout a 1.75. 9 rent cannot be reserved (30).

Jewel's case.

Ass. 21. 14 E. 3. Scire facias, 22. 10 H. 6. 2. 3 H. 6.

21.

Sid.

316, 317. 416. Cro. Eliz.708.)

(422) *

*Seventhly, it must be of lands or tenements which have most commonly been letten to farm, or occupied by the farmers thereof by the space of twenty years next before the lease made, so as if it be letten for eleven years at one or several times within those twenty years, it is sufficient (R). A grant (f) by copy of court (F) 6 Co. 37. roll, in fee, for life or years, is a sufficient letting to farm within chapter of this statute, for he is but tenant at will according to the custom, case. and so it is of a lease at will by the common law; but those lettings to farm must be made by some seised of an estate of inheritance,

(29) "M. 29. 30 Eliz. Clench. 138. Crindal's case." Hal. MSS.-See S. C. 4 Leon. 78. 1. and 65. and Mo. 107. and the observations upon it in New Abr. Leases, (E.) rule 3.—[Hargr. n. 2. 44 b.]

(30) But if tithes have been usually let to farm, they cannot be leased for life to bind the successor; but they may be leased for 21 years, rendering the ancient rent, and it shall bind the successor. Mo. 778. T. 2 Jac. B. R. Adjudged in Denny's case, and the rent goes with the reversion. Nota, it was the case of the precentor of Paul's." Hal. MSS.-See New Abr. Leases, E. rule 5,

Dean and

Worcester's

where many authorities are cited to prove this difference between leasing tithes for life and for years, and that in the latter case the lease will bind the successor because he may have debt for the rent, which will not lie for him on a freehold lease. But the distinction is no longer of any importance; for the 5 G. 3. c. 17. makes leases of tithes and other incorporeal hereditaments by ecclesiastical persons, whether for lives or for years, as good as if the leases were of corporeal hereditaments, and gives action of debt to the successor, for rent reserved on freehold leases.-[Hargr. n. 3. 44 b. (259).]

diately determined, because both leases cannot exist together, and the first cannot be dissolved or surrendered in part, and therefore must be surrendered for the whole. Thompson v. Trafford, Poph. 9. Plowd. 106. Comp. Incumb. 345, 316.—[Ed.]

66

(R) Upon the construction of this clause (which, in order to prevent the falling off of hospitality, prohibited the persons enabled by the statute to demise, from making leases of their mansion houses and demesnes, so as to bind their heirs or successors), various opinions have been entertained. The better of them seems to be, that it consists of two parts in the disjunctive, and if either of them be observed, it is sufficient to support the lease. The first is, which have not most commonly been letten," which is general. The other is," or occupied by the farmers thereof by the space of twenty years, &c.:" and the most natural and genuine meaning of the words is, that the lands to be leased must either be such as have been most cominonly letten, that is, such as are not reputed part of the demesnes, or such as have been occupied by the farmers thereof by the space of twenty years. 4 Bac. Abr. 75, 76. tit. Lease (E). 4 Cru. Dig. 126.—[Ed.]

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5 Co. 6. Seig. Mountjoy's

case.

Mountjoy's case. 6 Co.37.

6 Co. 37, 38. Dean and chapter of Worcester's

and not by a guardian in chivalry, tenant by the curtesy, tenant in dower, or the like (31).

Eighthly, that upon every such lease, there be reserved yearly during the same lease, due and payable to the lessors, their heirs and successors, &c. so much yearly farm or rent, or more, as hath been most accustomably yielded or paid for the lands, &c. within twenty years next before such lease made (32). Hereby first it appeareth (as hath been said) that nothing can be demised by authority of this (Cro.Jam.76.) act, but that whereout a rent may be lawfully reserved. Secondly 5 Co. 5. Seig. that where not only a yearly rent was formerly reserved, but things not annual, as heriots, or any fine or other profit at or upon the death of the farmer, yet if the yearly rent be reserved upon a lease made by force of this statute, it sufficeth by the express words of the act. Thirdly, if he reserve more than the accustomable rent, it is good also by the express letter of the act; but if twenty acres of land have been accustomably *letten, and a lease is made of those twenty, and of one acre which was not accustomably letten, reserving the accustomable yearly rent, and so much more as exceeds the value of the other acre, this lease is not warranted by the act, for that the accustomable rent is not reserved, seeing part was not accustomably letten, and the rent issueth out of the whole. Fourthly, if tenant in tail let part of the land accustomably letten, and reserve a rent pro ratâ, or more, this is good, for that it is in substance the accustomable rent (s). Fifthly, if two 'coparceners be tenants in tail of twenty acres, every acre of equal value, and accustomably letten, and they make partition, so as each have ten acres, they may make leases, of their several parts each of them, reserving (Cro. Cha. 6. the half of the accustomable rent. Sixthly, if the accustomable rent had been payable at four days or feasts of the year, yet if it be

case.

(423)*

5 Co. 5. Seig

nior Mountjoy's case. 6 Co. 37.

Lord Mount

joy's case, ubi supra.

17.)

(31) Lease by the king during vacancy of bishoprick will not enable. P. 19 Jac. B. R. Denny's case. Vid. Dy. 271." Hal. MSS. [Hargr. n. 4. 44 b. (260).]

[See 4 Bac. Abr. 74, 75. tit. Leases, (E).] -[Ed.]

(32) "6 Rep. 37. T. 3 Jac. Crook, n. 6." Hal. MSS. See Cro. Jam. 76.-[Hargr. n. 5. 44 b.]

(s) The books are not agreed whether a tenant in tail, bishop, &c. may make a lease of part of lands which have been usually let for a certain rent, reserving a rent pro rata. For it is said, that if bishops, &c. have the power of dividing their farms, and leasing them out in smaller parcels, the whole estate is no longer answerable for the whole rent. The security is lessened by such a division, and there may possibly be an entire deficiency of remedy for portions of the rent. And therefore, where a division was deemed necessary, it has, in some instances, been thought advisable, on account of this possible injury to the successor, to apply for the aid of the legislature. See the private act of parliament, 35 Geo. 3. c. 109. empowering the bishop of Ely to grant out estates belonging to his see, in several smaller parcels. But the better opinion appears to be, agreeably to what is here said by Lord Coke, that such leases are good, because the ancient rent is in fact reserved, and otherwise perhaps they would not lease at all if they had not a power of dividing the great farms. 4 Bac. Abr. 86. tit. Leases (E). And now the doubt to the contrary has, so far as it relates to ecclesiastical leases, been removed by a late act of parliament, stat. 39 & 40 Geo. 3. c. 41. This act, however, does not remove the doubt as to leases by tenants in tail, or husband seised jure uxoris; nor does it validate leases by ecclesiastical persons of two or more farms together, which have been usually let separately. Sugd. Pow. 611.-[Ed.]

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