Tit 10. c. 5. 65. It has been stated, that by the general custom Copyholders. of most manors, copyholders may make leases for one, and sometimes for three years; and that they may, with the lord's licence, make leases for any number of years but though a lease be made by a copyholder, Haddon v. not warranted by the custom, without licence of the Cro. Eliz. lord, it is not absolutely void; for the lessee may 461. maintain an ejectment against strangers. Arrowsmith, 66. All persons incapable of binding themselves by Who are incapable of any other contract, such as persons of nonsane me- making mory, &c., are of course incapable of making leases; Leases. but it has been stated that the committees of lunatics ante § may now make leases of the lunatic's land, under the direction of the Court of Chancery. 67. An infant cannot make a lease of his lands, un- Infants. less it be evidently beneficial to him. Where no rent is reserved, it has been held by some to be totally void, while others hold it to be only voidable: it appears Bac. Ab. Tit. Lease, B. however to be settled, that if an infant makes a lease for years, he cannot plead non est factum, but must avoid it by pleading the special matter of his infancy; which seems to favour the opinion of those who hold that the lease is not totally void. 68. If an infant makes a lease reserving rent, it is Idem. prima facie good; because it is presumed to be for his benefit. But it is voidable by the infant, when he comes of age; or by his heir if he dies under age. If a case of this kind were now to arise, the principle upon which its validity would depend, would be, whether it was beneficial or not to the infant. Lord Mansfield has observed, that very prejudicial leases may be made, though a nominal rent be reserved that there may be most beneficial considerations for a lease, though no rent be reserved. And As 3 Burr. 1806. that an infant may Married ante, f 33. Of void and voidable Leases. make a lease without rent, for the purpose of trying his title. 69. Married women being disabled by the common law from making any disposition of their real estates during their coverture, cannot make leases: therefore the statute 32 Hen. VIII. enables their husbands to make leases for them. 70. There are many cases in which leases made by persons having only a particular estate in the lands, become absolutely void, by the death of the lessor; and others where they are only voidable by the heirs, or persons in remainder or reversion. This distinction is 1 Inst. 211 b. frequently material; for where a lease becomes absolutely void, by the death of the lessor, no acceptance of rent, or any other act by the heir, or person in remainder or reversion, will make it good; whereas if a lease be voidable only, acceptance of rent will operate as a confirmation of it. 1 Inst. 45 b. Idem. 71. All leases. by tenants in tail not warranted by the statute 32 Hen. VIII. are voidable by the issue in tail. If the issue accept of rent or fealty after the death of their ancestor; or bring an action for the rent, or for waste, these acts will operate as a confirmation of the lease. 72. With respect to leases made by tenants in tail conformable to the statute 32 Hen. VIII., though binding on the issue, they are void, as against the persons in remainder and reversion: so that no acceptance of rent by them will operate as a confirmation. As to leases not conformable to the statute 32 Hen. VIII. they are of course void as to the remainder-man or reversioner. 73. It has been stated that leases made by husband and wife, of the wife's land, though not conformable Weller 478. 2 Lease, G. 180. n. 9. to the statute 32 Hen. VIII., are only voidable by Doe v. the wife; therefore acceptance of rent by her, after 7 Term R. her husband's death, will operate as a confirmation. 74. It is said that the lease of the husband alone, of his wife's land, is only voidable by the wife, and not absolutely void. Some doubts are raised respecting this point by the late Mr. Serjeant Williams.* 75. All leases made by tenants for life become absolutely void by their death; so that no acceptance of rent, or other act, by the persons entitled to the remainder or reversion, will operate as a confirmation of them. 75. A tenant for life made a lease for 21 years, Jenkins v. and died before the expiration of the term. The Church. Cowp. 482. remainder-man suffered the tenant to continue in possession four or five years, received the rent regularly during that time, then gave him notice to quit, and brought an ejectment. Lord Mansfield said-This was a void lease; but if it were voidable only, the acceptance of rent alone, unaccompanied with any other circumstance, was not a sufficient confirmation. It could not be a confirmation, unless done with a knowledge of the title at the time; or unless the remainder-man lay by, and suffered the tenant to lay out his money in improvements, in confidence of continuing tenant. But here it was a void lease; and in general a void lease was incapable of confirmation. 76. In a subsequent case Lord Mansfield held that a lease, which was void against a remainder-man, could not be set up by his acceptance of rent, and * With respect to the cases where leases made by ecclesiastical persons are void, or only voidable, the student is referred to Bacon's Ab. Tit. Lease, H. Doe v. But 50. suffering the tenant to make improvements, after his interest became vested in possession. 77. A tenant for life made a lease for 99 years, cher, Doug. if two persons should so long live. The remainderman received rent and heriots for several years from the lessee, who laid out considerable sums of money, after the death of the lessor, in improvements. Lord Mansfield said, there did not appear to have been any intention either to confirm the old lease, or to grant a new one both parties had proceeded under a mistake, and had supposed the original lease to be good. Judgement was given that the lease was not confirmed. Stiles v. 78. The Court of Chancery has however held, that where a remainder-man accepted, rent, and suffered the tenant to make improvements, knowing the defect in the lease, he should execute a new lease to him. 79. A tenant for life made a lease of a house under a power. The lessee assigned over the premises to one Stiles, who rebuilt the house. After the death of the lessor the remainder-man accepted rent during six years, during which time the tenant built new offices. The remainder-man afterwards brought an ejectment against the tenant, and recovered the possession; the lease not being made pursuant to the power. The tenant filed a bill in Chancery for an injunction to stay proceedings at law, and to be quieted in the possession of the house. Lord Hardwicke said, that where a remainderman lies by, suffers the lessee or assignee to rebuild, and does not by his answer deny that he had notice of it; these circumstances together would bind him from afterwards controverting the lease. Decreed that the defendant should execute a new lease to the plaintiff. 80. Where there is a proviso inserted in a lease, that upon non-payment of the rent reserved on a certain day, the lease shall be void; if the rent is not paid on the day named, no acceptance of rent after, will operate as a confirmation. 1 Inst. 215. 3 Rep. 65 a. Throck 221. Poph. 81. King Philip and Queen Mary demised the Finch v. seat of the priory of Ravenstone to T. Throckmorton morton, for 70 years, rendering rent, with a proviso, that Cro. Eliz. upon non-payment within 40 days after the day it 53. was due, the lease should be void. The rent was not paid within 40 days in 9 Eliz., but afterwards the Queen's receiver accepted it, made an acquittance, as if it had been paid at the day; and continued to receive it till 30 Eliz., when the Queen granted the land. The non-payment of the rent in 9 Eliz. within the forty days was found by office, upon which the new grantee entered. The case was argued several times in the Exchequer, and all the barons agreed: 1. That the lease became void immediately upon the non-payment of the rent, for the words were, that upon non-payment the lease should cease and be void. So that the land was discharged of the contract, and the patentee was no longer a termor; nor, as Manwood said, a tenant at will or at sufferance. 2. That the acceptance of rent afterwards, could not make a void lease good. A writ of error was brought before the Lord Keeper and the Lord Treasurer, where the judgment was affirmed, for this reason, that the proviso should be taken to be a limitation to determine the estate, and not a condition to undo the estate; which could not be defeated, in case of a condition, but by entry. 82. If there be a proviso in a lease, that upon alienation the lessor shall re-enter; there, if the lessor |