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23. Although a lease must, at its creation, have a May determine by Proprecise period fixed, beyond which it is not to con- viso. tinue; yet it may be made to determine prior to that Tit. 8. c.1. period, by a proviso or condition. And in all

modern leases there is a proviso, that if the rent is not paid, and no sufficient distress is found on the premises, the lessor may re-enter.

leased.

24. All lands whereof a person is in possession What may be may be leased. There are also some kinds of incorporeal hereditaments, which may be leased. Thus Davenport's an advowson appendant may be leased, with the 8 Rep. 144. manor to which it is annexed.

Case,

10-65 b.

25. Tithes, whether in the hands of ecclesiastics or lay impropriators, may be leased; and in the case of Tit. 28.c.1. ecclesiastics, a rent may be reserved on such leases.

26. Offices which do not concern the administra- Jones v.

Clark,

tion of justice, but only require skill and diligence, Hard. 46. may be leased for years; because they may be executed by deputy, without any inconvenience to the public.

make Leases.

27. All natural persons, who are capable of aliena- Who may ting their property, or of entering into contracts respecting it, and all lay corporations, may make leases, which will endure as long as their interest in the thing leased, but no longer.

28. By the statute 48 Geo. III. c. 75. § 4. it is enacted, that the Courts of Chancery of the United Kingdom, and of Ireland, may order the committee of the estate of lunatics, to make such leases of their estates as the Court shall direct. And where lunatics have a power of leasing, their committees are enabled to execute such power under the direction of that Court.

29. Leases made by persons having no estate in the infra, c. 19. lands at the time, may become good by estoppel; of

which an account will be given hereafter.

Tenants in

Tail.

1 Inst. 333 a. Vaugh. 383.

Walter v.
Jackson,
1 Roll. Ab.
633.

Husbands

seised Jure Uxoris.

30. All leases made by tenants in tail might have been avoided by their issue, and by the persons entitled to the remainder or reversion. But by the statute 32 Hen. VIII. c. 28. § 1. it is enacted, that all leases made for term of years, or life, by any person or persons, being of full age, having any estate of inheritance, either in fee simple, or in fee tail, shall be good and effectual in law against the lessors and their heirs.

. 31. This statute does not however extend to persons having estates in remainder or reversion, expectant on the determination of an estate tail; who are not bound by any leases made by the tenant in tail.

32. A lease by tenant in tail, which is warranted by this statute, though made by feoffment and livery, will not create a discontinuance. Because an act of parliament, to which every man is a party, allows of such leases, which, if tortious, as all discontinuances are, parliament would not allow. But if a lease by feoffment be not warranted by the statute 32 Hen. VIII. it will operate as a discontinuance.

33. It is enacted by the same statute, that all leases made for term of years or life, by persons having an estate of inheritance in right of their wives, or jointly with their wives, of any estate of inheritance, made before the coverture, or after, shall be good and effectual in law, against the lessors, their wives and their heirs provided that the wife be made a party to every such lease, and the lease be made by inde..ture in the name of the husband and wife, and she do seal the same, and that the rent be reserved to the husband and wife, and the heirs of the wife, according to her estate of inheritance in the same. the husband shall not in any wise alien, discharge, grant, or give away the same rent longer than during

And that

the coverture, except by fine levied by the husband and wife but that the same rent shall remain, after the death of the husband, to the person to whom the lands would have gone, if no such lease had been made.

Weller,

infra.

34. If the circumstances required by the statute Doe v. are not observed, leases by husband, and wife, of the wife's lands, are not binding on wives surviving their husbands. If the wives die in the lifetime of their husbands, their heirs may avoid them.

seised Jure

35. At common law, leases made by ecclesiastics, Ecclesiastics of lands whereof they were seised in right of their Ecclesiæ.. churches, &c. were in many cases not binding on their successors: it was therefore enacted by the statute 32 Hen. VIII. c. 28. that all leases for term of years or life, by any persons having an estate of inheritance in right of their churches, shall be good and effectual against the lessors and their successors. 36. There are several other statutes, by which all alienations by ecclesiastical persons are declared void,. 14c. 11. except leases for 21 years, or three lives. And as the statute 32 Hen. VIII. is called an enabling statute; these are called disabling statutes.

13

1 Eliz. c. 19.

18

c. 10.

—c.11. 1 James, c. 3.

stances re

37. The circumstances required by the statute Circum32 Hen. VIII. and the subsequent statutes, to render quired in leases made by tenants in tail, husbands seised in these Leases. right of their wives, and ecclesiastical persons, valid

and binding on their heirs and successors, are chiefly

these.

38. 1°. All such leases must be by deed indented, 1 Inst. 44 a. and not by deed poll, or by parol. 2. Must be made

to begin from the day of the making thereof, or from the making thereof.

39. 3°.. If there be an old lease in being, it must Idem. be surrendered or ended, within one year next after

Thompson v. Trafford, Poph. 9.

Wilson v.

Carter,

the making of the new lease. Such surrender must be absolute, and not conditional; for then the intention of the statute might easily be evaded, by setting up such old lease again, upon breach of the condition.

40. 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 the statutes. For by taking such new lease, though to commence on a future day, the first lease is presently surrendered, and gone; and shall not continue till the day on which the new lease is to commence; but by acceptance of such new lease, the first is immediately surrendered, because both leases cannot exist together. As the first cannot be dissolved, or surrendered in part, it must be surrendered for the whole.

41. A surrender upon condition that the lessor should make a new lease within a week after, has been held good.

42. The lessor of the plaintiff being a prebendary 2 Stra. 1201. of Sarum, brought an ejectment to avoid a lease made by his predecessor, as not being conformable to the proviso in the statute 32 Hen. VIII., because the surrender of the former lease was with a condition, that if the then prebendary did not, within a week after, grant a new lease, the surrender should be void; whereby, as it was contended for the plaintiff, the old term was not absolutely gone; but the lesee reserved a power of setting it up again.

The Court gave judgement for the defendant, this being within the intent of the statute; which was, that there should not be two leases standing out against the successor. Here the new lease was made within the week; from thence it became an absolute

surrender, both in deed and in law: the whole was out of the lessee, without farther act to be done by him. In the proviso in the statute, there was the word ended, as well as surrendered; and could it be said that the first lease was not ended. 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.

43. The stat. 18 Eliz. c. 11. § 2. enacts, that all leases to be made by any ecclesiastical or collegiate persons, or others, within the stat. 13 Eliz. c. 10., of any lands, &c. whereof any former lease for years is in being, and not to be expired, surrendered, or ended within three years next after the making of any such new lease, shall be void. And by the 3d section of 18 Eliz. all bonds and covenants for renewing any leases, contrary to the 13 Eliz. or this statute, are declared void.

44. There are, however, some cases in which a 4 Bac. Ab. bishop, with the consent of dean and chapter, may

make a concurrent lease.

64.

45. 4°. The duration of all leases made under these Inst. 44 b. statutes must not exceed twenty-one years, or three lives; but it may be for fewer years or lives. The intention of these statutes being only to abridge the power of making long and unreasonable leases, by reducing them to a determinate number of years or lives, which they should not exceed: but might be made as much under as the party pleased.

46. If a bishop makes a lease for four lives, and 10 Rep. 62 a. one of them dies in the lifetime of the bishop, so that at his death there are but three lives in being; yet the lease will be void against his successor. For as it was originally void, no subsequent event could make it good.

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